Front Page Titles (by Subject) SECTION V.: JUDGES', &c. DEPUTES. - The Works of Jeremy Bentham, vol. 3
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
SECTION V.: JUDGES’, &c. DEPUTES. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 3 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 3.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
JUDGES’, &c. DEPUTES.
Art. 1. To obviate delay and failure of justice, the Judge will, within [NA] days after the day of his location, locate a Depute. By this substitute his seat will be occupied, at all times during which the Judge, his principal, is taking the benefit of the vacation days (as per Section XII. Sittings, times of,) or is by sickness rendered unfit for duty.
Art. 2. Power to his Majesty, at any time within [NA] days after such location, to dislocate such locatee: power, in that case, and with obligation, to the Judge, within [NA] days after such dislocation, to locate a fresh Depute, with like power of dislocation to his Majesty, as aforesaid; and so, toties quoties, until a Depute shall have been located, of whom it shall have pleased his Majesty to approve. So likewise, toties quoties, in case of self-dislocation, or say resignation, by such Depute.
Art. 3. To the end that such substitution of the Depute to his principal may never have place without sufficient cause,—of the non-attendance of the Judge by reason of sickness, the Registrar will on that same day give information; that is to say, by a bulletin, transmitted to each of the London daily newspapers, evening or morning, whichever shall be next published; on receipt of which, the Editor of each such newspaper shall, with all practicable dispatch, give insertion thereunto.
Art. 4. On the first day of his attendance, after non-attendance by reason of sickness,—the Judge will, at the commencement of the sitting, make open declaration thereof: and, of such declaration the Registrar will forthwith make entry on the minutes of the register-book.
Art. 5. If, at any part of the Judge’s vacation time, as above, it should happen to the Judge Depute to be non-attendant by reason of sickness, as above,—like notice of such sickness, and publication thereof, shall have place, as per art. 3: and, in this case, the Judge will be in attendance instead of his Depute, unless by distance from London, such attendance is rendered impracticable.
Art. 6. Power to the Judge, at any time, to dislocate or suspend his Depute, for special cause assigned: entry thereof will thereupon be made in the minutes; and copy of the instrument of dislocation delivered to the dislocatee. Power to the Judge, in this case, and with obligation, to locate a fresh Depute: obligation on the Judge, at the same time, his vacation time notwithstanding, to attend during [NA] days after such location, for the instruction of such his new Depute.
Art. 7. Responsible in damages will be the Judge, for any wrong, to any individual or body politic, or to the public at large, by any act, positive or negative, done by his Depute.
Art. 7*.—i. Let it not be thought, that, by this obligation, any apt and competent person will be deterred from subjecting himself to this eventual damage. To serve their respective friends or connexions,—without remuneration, received or expected,—men of all descriptions are continually seen exposing themselves to this same risk; and this—even after, and in consequence of, proof of misconduct, in some determinate shape, in some individual instance, on the part of him for whom this risk is incurred: witness all instances of binding to good behaviour, by recognizance with co-obligors.
ii. In the present instance, slight will be the risk, valuable the compensation given for it:—slight the risk; for, from among all his acquaintance will the functionary have to select the object of his choice. Valuable, on the other hand, as will be seen, the compensation attached to this risk: valuable, notwithstanding the terms on which the Depute will have to serve. See this topic further pursued, below, art. 12*.
Art. 8. To no pecuniary remuneration in any shape, and in particular in the shape of fees, will be entitled any Judge-Depute located under this Act.
Art. 9. In addition to the power and dignity naturally and inseparably attached to his office,—a remuneration he will have, in the prospect of succeeding to the office, on the death or dislocation of his principal; and, consideration had of the peculiar experience obtained by him, and the relative aptitude evidenced by him, in and by the fulfilment of his duty, in respect of such his office,—his succession thereto will, in a manner, take place of course: saving always to his Majesty, his negative, as per Sect. I. art. 13, 14, 16.
Art. 9*. As to service without pecuniary remuneration, it has place in some thousands of instances on the part of Justices of the Peace. True it is, that, on the part of those functionaries, the service is not obligatcry; and, on the free will of each one of them depends the time, and in good measure the place, in which it is performed. On the other hand, not having, unless by corruption, any pecuniary remuneration (with the exception of the small value in the shape of patronage in respect of the fees received by a Clerk,)—they have not any pecuniary remuneration, comparable in value to that which, as above, is in expectancy in the case of the Judge-Depute: and as to the obligation of duty,—in his case it extends not, for a certainty, beyond the small quantity of vacation time allowed to the principal. As to the casual addition by his sickness, it is what may never happen: for it is what, in experience, has in many instances never happened.
Art. 10. Power to the Registrar to locate a Depute, in like manner as to the Judge, as per art. 1.
Art. 11. Power to the Registrar to dislocate, and from time to time suspend, his Depute, in like manner as to the Judge, per art. 6.
Art. 12. Responsible will be the Registrar for any wrong done by his Depute; in the same manner as is the Judge by art. 7.
Art. 12*. Of the deputation system, applied as it is in general, and, in particular, applied as it is to the offices here in question,—namely, that of the Judge, and that of the Registrar,—but more particularly that of the Judge,—beneficial effects, these:—
i. Operating as an efficient cause of the existence of appropriate aptitude in the functionary: appropriate aptitude, that is to say, in all its branches.
ii. Affording an experimental demonstration of that same existence.
iii. Affording an indication of the degree in which, in the instance of each candidate, it has place.
iv. In case of deficiency to any amount in respect of any of these requisites,—affording facility of dislocation, with the least possible commotion on the part of the public mind, and with the least possible hurt to the feelings of the individual.
v. Produced by the deputation system as here applied, may be seen to be these so desirable effects,—all of them in conjunction, each of them in a manner and degree as yet without example.
vi. As to appropriate aptitude on the part of the Depute:—appropriate aptitude in all points taken together, and more especially moral aptitude. At each period of his service, the state of his mind in respect of this quality will depend—partly on what it was on entrance into the situation, partly on subsequentially intervening circumstances: say partly on initial, or say original,—partly on subsequential, aptitude. But, as to initial aptitude, in a prodigious degree more effective is the security afforded in this case, than that which is afforded in the ordinary mode of patronage. In the present case, responsible in a pecuniary way is the principal for the good behaviour of his depute: not so, in the ordinary case, the patron for his protegé. Mark now in both cases the consequence. In the case of the Dispatch Court,—to the Judge thereof,—that is to say, to the Judge Principal,—the aptitude of this object of his choice—of this partner of his fortune—of this his occasional proxy, cannot possibly fail to be an object of attentive examination and sincere solicitude: while, in the ordinary case of a patron, no motive whatever, capable of making any approach to the degree of force adequate to the production of any such attention, has place.
vii. The risk thus incurred, as above already alluded to (art. 7*)—is it in the nature of the case that it should have any such effect as that of preventing a fit person from giving his acceptance to the trust? Not it, indeed: for, so says continual experience. So many instances, in which, in existing practice, one man joins in security for the good behaviour of another,—so many instances in which the demonstration is afforded. But, in this case, beyond comparison stronger is the inducement than in those. In those cases, on the part of the object of the confidence reposed, delinquency already manifested is an essentially concomitant circumstance: in those same cases, to set against, and afford compensation for, the risk, no benefit in any self-regarding shape has place: frequently, nothing in addition to the simple pleasure of sympathy, or say benevolence: while, in the present case, in compensation for a so much inferior risk, comes the benefit of rich patronage—the patronage of so high an office. And thus it is, that in so far as, in consequence of the good behaviour of the Depute in such his situation, he becomes eventually elevated by the competent authority to the rank of Principal,—the patronage of this important office is virtually, and, as it were, insensibly, transferred from an essentially unapt, into an essentially apt, class of hands: from hands indiscriminately occupied in the promotion of justice and injustice, to hands exclusively occupied in the promotion of justice.
viii. So much for initial appropriate aptitude: now as to subsequential.
ix or i. As to the moral branch.* Here may be seen each functionary’s interest brought into connexion and coincidence with his duty, by the closest ties. Neither by delay nor by expense, neither by being lavish of the time nor of the money of other men, will any one of these functionaries have profit to gain in any shape; while, by the care taken to expend of both those precious articles taken together no more than the smallest quantity that, consistently with rectitude of decision, can be expended, reputation will every one of them have to gain;—reputation, which in his situation is everything.
x. or ii. As to appropriate aptitude, intellectual and active. Here, by each one of these Dispatch Court Judge Deputes, with a degree of instructiveness proportioned to the number of the suits that have passed through his hands, will be a sort of apprenticeship served, preparatory to the subsequent mastership. An apprenticeship? and in what occupation?—not (as the unknown political satirist phrases it) “in the indiscriminate defence of right and wrong,” but in the pure and undeviating pursuit and support of right.
xi. or iii. As to manifestation of the existence of this aptitude and of the degree of it,—in the Dispatch Court, in full view of the assembled public, by every one of these Deputes, will demonstration be, each day, made: each such Dispatch Court Judge Depute will be a probationer, with reference to a permanent situation in one of the contemplated Local Judicatories.
xii. or iv. For the seeking, or the acceptance, of a situation thus circumstanced, what encouragement could present itself to any man, who is not inwardly conscious of a competent degree of appropriate aptitude, in all its several shapes, as above distinguished.
xiii. or v. On the other hand, suppose the Dispatch Court out of the question, and the Local Judicatories instituted, with what promise of appropriate aptitude would they be to be filled? What proof tolerably conclusive, what proof so much as faintly presumptive, would be to be found anywhere else?
xiv. or vi. The greater the number of these Deputes, whom, without lessening through want of experience the probability of rectitude of decision, means could be found for employing in the Dispatch Court,—the greater would be the benefit produced in both situations: in the Dispatch Court, and in the Local Judicatories likewise. In the Dispatch Court, by augmentation of the number of the suits to which the relief in respect of the delay and expense would be administered; in the Local Judicatories, by augmentation of the number of the Judicatories, for which Judges, endowed with the thus demonstrated degree of appropriate aptitude, would be help up to view and presented for choice.
vii. Nor is the name Depute an invention of the present day. Besides the kindred name of Deputy, employed in so many Government offices (and to an extent so much greater than could be wished)—the institution indicated by the name Depute is, in Scotland, exemplified in the case of divers judicial officers. Witness Sheriff-Deputes:* though, of the use made of it in the present instance, no more than a comparatively small part would be found exemplified in that instance.
Art. 13. In respect of the several offices of Judge, Registrar, and Short-hand Writer, with their respective Deputes,—for forms of location, dislocation, suspension and relocation, see Schedules No. IV. to VII.
[* ]Such being the mode of payment under the Dispatch Court summary system—confront with it now an exemplification of the Equity Court regular system, the place of which it is proposed to take. Look into the office of the sort of subordinate Judge styled a Master in Chancery: the Court of this Judge, such office may be styled—in so far as a closed closet can with propriety be styled—a Court; meaning a Court of Justice. Behold here the whole business carried on in a manner, than which the wit of man could not have devised any other more exquisitely well adapted to the sole real purpose—the purpose of raising the two conjunct quantities—factitious delay and official profit—to the highest possible pitch: judicial attendance paid for by the hour, each such hour separated from every other by an interval of days or weeks, no one of those hours composed of so many as sixty minutes; no one of them sure of being composed of so many as sixty moments; of these moments, a number more or less considerable employed—partly in discussing the news of the day, partly in gathering up the thread that had been broken, and refreshing the traces that had been obscured, by so many intervening heterogeneous businesses.
[* ]Sheriff-Deputes.] Note, the acting Depute is styled Sheriff-Depute Substitute; the acting Principal being styled Sheriff-Depute, and the official person styled a Sheriff, a sinecurist. Official person? Yes: but, having no function to perform, with what propriety can this, or any other sinecurist, be termed a functionary?