The Online Library of Liberty

A project of Liberty Fund, Inc.

• Errata—vol. III.
• Defence of Usury; Showing the Impolicy of the Present Legal Restraints On the Terms of Pecuniary Bargains; In Letters to a Friend.
• Letter I.: Introduction.
• Letter II.: Reasons For Restraint—prevention of Usury.
• Letter III.: Reasons For Restraint—prevention of Prodigality.
• Letter IV.: Reasons For Restraint—protection of Indigence.
• Letter V.: Reasons For Restraint—protection of Simplicity.
• Letter VI.: Mischiefs of the Anti-usurious Laws.
• Letter VII.: Efficacy of Anti-usurious Laws.
• Letter VIII.: Virtual Usury Allowed.
• Letter IX.: Blackstone Considered.
• Letter X.: Grounds of the Prejudices Against Usury.
• Letter XI.: Compound Interest.
• Letter XII.: Maintenance and Champerty.
• Letter XIII.: To Dr. Smith, On Projects In Arts, &c.
• A Manual of Political Economy: Now First Edited From the Mss. of Jeremy Bentham.
• Chapter I.: Introduction. *
• Chapter II.: Analytical Survey of the Field of Political Economy.
• Chapter III.: Of Wealth.
• Chapter IV.: Of Population.
• Chapter V.: Of Finance.
• Chapter VI.: Operation of a Sinking Fund On the Production of Wealth.
• Chapter VII.: Noscenda.
• Observations On the Restrictive and Prohibitory Commercial System; Especially With a Reference to the Decree of the Spanish Cortes of July 1820.
• Preface.: Observations, &c.
• Section I.: Nature of the Prohibitory System.
• Section II.: Mischiefs of the Prohibitory System.
• Section III.: Causes of the Prohibitory System.
• A Plan For Saving All Trouble and Expense In the Transfer of Stock, and For Enabling the Proprietors to Receive Their Dividends Without Powers of Attorney, Or Attendance At the Bank of England, By the Conversion of Stock Into Note Annuities.
• Introduction.
• Chapter I.: Plan For the Creation, Emission, Payment, and Eventual Extension, of a Proposed New Species of Government Paper, Under the Name of Annuity Notes.
• Chapter II.: Form of an Annuity Note. (see Table II.)
• Chapter III.: Comparison of the Proposed, With the Existing Government Securities, &c.
• Chapter IV.: Grounds of Expectation, In Regard to the Proposed Measure.
• Chapter V.: Financial Advantages.
• Chapter VI.: Advantage By Addition to National Capital.
• Chapter VII.: Advantage By Addition to Commercial Security.
• Chapter VIII.: Particular Interests Concerned.
• Chapter IX.: Rise of Prices—how to Obviate.
• Chapter X.: Reduction of Interest—proposed Mode Compared With Mr. Pelham’s.
• Chapter XI.: Moral Advantages.
• Chapter XII.: Constitutional Advantages.
• Chapter XIII.: Recapitulation and Conclusion.
• Appendix A.: Government Ought to Have the Monopoly of Paper Money, As Well As of Metallic Money.
• Appendix B.: Paper Money—causes Why Not Circulated By Government Without Interest, As Well As By Individuals.
• General View of a Complete Code of Laws.
• Chapter I.: General Division.
• Chapter II.: Relations Between the Laws Concerning Offences, Rights, Obligations, and Services.
• Chapter III.: Relation Between the Penal and Civil Code.
• Chapter IV.: Of Method.
• Chapter V.: Plan of the Penal Code.
• Chapter VI.: Of the Division of Offences.
• Chapter VIII. Titles of the Penal Code.
• Chapter IX.: First General Title of the Civil Code, * of Things.
• Chapter X.: Second General Title of the Civil Code. of Places.
• Chapter XI.: Third General Title of the Civil Code. of Times.
• Chapter XII.: Fourth General Title of the Civil Code. of Services.
• Chapter XIII.: Fifth General Title of the Civil Code. of Obligations.
• Chapter XIV.: Sixth General Title of the Civil Code. of Rights.
• Chapter XV.: Seventh General Title of the Civil Code. of Collative and Ablative Events.
• Chapter XVI.: Eighth General Title of the Civil Code. of Contracts.
• Chapter XVII.: Ninth General Title of the Civil Code. of the Domestic and Civil States.
• Chapter XVIII.: Tenth General Title of the Civil Code. of Persons Capable of Acquiring and of Contracting.
• Chapter XIX.: Of the Particular Titles of the Civil Code.
• Chapter XX.: Of Elementary Political Powers.
• Chapter XXI.: Of Elementary Political Powers— Subject Continued.
• Chapter XXII.: Plan of the Political Code.
• Chapter XXIII.: Plan of the International Code.
• Chapter XXIV.: Plan of the Maritime Code.
• Chapter XXV.: Plan of the Military Code.
• Chapter XXVI.: Plan of the Ecclesiastical Code.
• Chapter XXVII.: Plan of Remuneratory Laws.
• Chapter XXVIII.: Of Political Economy.
• Chapter XXIX.: Plan of the Financial Code.
• Chapter XXX.: Plan of Procedure Code.
• Chapter XXXI.: Of the Integrality of the Code of Laws.
• Chapter XXXII.: Of Purity In the Composition of a Code of Laws.
• Chapter XXXIII.: Of the Style of the Laws.
• Chapter XXXIV.: Of the Interpretation, Conservation, and Improvement of a Code.
• Pannomial Fragments.
• Chapter I.: General Observations.
• Chapter II.: Consideranda.
• Chapter III.: Expositions.
• Chapter IV.: Axioms.
• Nomography; Or the Art of Inditing Laws: Now First Published From the Mss. of Jeremy Bentham.
• Chapter I.: The Subject Stated.
• Chapter II.: Relations.
• Chapter III.: Proper End In View.
• Chapter IV.: Imperfections Primary.
• Chapter V.: Explanations Relative to the Imperfections of the Second Order.
• Chapter VI.: Of Remedies. *
• Chapter VII.: Of Language.
• Chapter VIII.: Of the Perfections of Which the Legislative Style Is Susceptible.
• Chapter IX.: Of Forms of Enactment.
• Appendix. Logical Arrangements, Or Instruments of Invention and Discovery
• Equity Dispatch Court Proposal; Containing a Plan For the Speedy and Unexpensive Termination of the Suits Now Depending In Equity Courts. With the Form of a Petition, and Some Account of a Proposed Bill For That Purpose
• Section I.: Purpose Explained. Jeremy Bentham to the Honest and Afflicted Among Equity Suitors.
• Section II.: Equity Suitors’ Petition For Dispatch Court. to the King’s Most Excellent Majesty, —
• Section III.: Dispatch Court Bill—some Account of It.
• Section IV.: Information Requisite From Petitioning Suitors.
• Equity Dispatch Court Bill: Being a Bill For the Institution of an Experimental Judicatory Under the Name of the Court of Dispatch, For Exemplifying In Practice the Manner In Which the Proposed Summary May Be Substituted to the So Called Regular Sy
• Editor’s Note.
• Preface.
• Preamble.
• Part I.—: Judiciary.
• Section I.: Judge Located, How.
• Section II.: Remuneration.
• Section III.: Registrar, &c.
• Section IV.: Eleemosynary Advocate.
• Section V.: Judges’, &c. Deputes.
• Section VI.: Judge’s Powers—exemptions—checks.
• Section VII.: Prehensors and Messengers.
• Section VIII.: Consignees; * Or Say, In-trust-holders.
• Section IX.: Grounds of Decision For the Dispatch Court Judge.
• Section X. ‡: Suits’ Comparative Suitableness; and Order of Cognizance.
• Section XI.: Auxiliary Judges and Accountants.
• Section XII.: Sittings, Times Of.
• Part II.—: Procedure.
• Section XIII.: Definitions. *
• Section XIV.: Examination of Solicitors.
• Section XV.: Initiatory Examination of Parties, &c.
• Section XVI.: Appropriate Intercourse, Constant and Universal, Secured.
• Section XVII.: Mutual Security For Forthcomingness of Persons and Things. ‡
• Section XVIII.: Evidence-procuring Money, How Provided.
• Section XIX.: Subsequential Evidence, How Elicited.
• Section XX.: Execution, How Performed.
• Section XXI.: Equity Court Costs, How Disposed Of.
• Section XXII.: Dispatch Court Costs, How Disposed Of.
• Section XXIII.: Eventual Retrotransference of a Suit to the Equity Court.
• Section XXIV.: Expense of the Court, How Provided For.
• Supplemental Sections:—
• Section I. Or XXV.: Bankruptcy and Insolvency.
• Section II. Or XXVI.: Henceforward Dispatch Court.
• Schedules to the Bill.
• Plan of Parliamentary Reform, In the Form of a Catechism, With Reasons For Each Article: With an Introduction, Showing the Necessity of Radical, and the Inadequacy of Moderate, Reform.
• Introduction.
• Section I.: History of the Ensuing Tract—alarming State of the Country and the Constitution.
• Section II.: Most Prominent Present Grievance, Gareisoning France.
• Section III.: Causes of the Above and All Other Mischiefs:—particular Interests Monarchical and Aristocratical, Adverse to the Universal—their Ascendency.
• Section IV.: Sole Remedy In Principle—democratic Ascendency.
• Section V.: Remedy In Detail: Radical Parliamentary Reform: Elementary Arrangements In This Edition of It—their Necessity.
• Section VI.: Differences Between This and the Original Editions of Radical Reform.
• Section VII.: Virtual Universality of Suffrage Further Considered.
• Section VIII.: Virtual Universality of Suffrage—its Undangerousness.
• Section IX.: Freedom of Suffrage Further Explained—seductive Influence—its Forms, Instruments, &c.
• Section X.: Bribery and Terrorism Compared.
• Section XI.: Purchase of Seats—in What Cases Mischievous—in What Beneficial.
• Section XII.: Secresy of Suffrage—its Importance Further Developed.
• Section XIII.: Exclusion of Placemen, &c. From the Right of Voting—mischievousness and Profligacy of the Opposite Arrangement.
• Section XIV.: Universal Constancy of Attendance—its Importance.
• Section XV.: Representatives—impermanence of Their Situation—its Importance:—objections—their Groundlessness.
• Section XVI.: Moderate Reform—its Arrangements—their Inadequacy.
• Section XVII.: Trienniality Inadequate;—annuality Necessary.
• Section XVIII.: Interests Adverse to Adequate Reform—support Given By Them to Moderate, to the Exclusion of Radical: Tories—whigs—people’s Men.
• Catechism of Parliamentary Reform; Or, Outline of a Plan of Parliamentary Reform; In the Form of Question and Answer; With Reasons to Each Article.
• Section I.: Ends to Be Aimed At On the Occasion of Parliamentary Reform.
• Section II.: Means, Conducive Towards These Ends.
• Section III.: Means—their Uses, With Reference to Their Respective Ends.
• Section IV.: Means Conducive to Aptitude In Members: I. Placemen Not to Vote, Nor to Be Seated By Election.
• Section V.: Means, &c. Continued.—ii. Placemen Seated By the King, With Speech and Motion, Without Vote.
• Section VI.: Means, &c. Continued.—iii. Elections Frequent—annual.
• Section VII.: Means, &c. Continued.—iv. Speeches Authentically and Promptly Published.
• Section VIII.: Means, &c. Continued.—v. Attendance, Punctual and General, Secured.
• Section IX.: Inconveniences Incident to Elections, and Election Judicature.
• Section X.: Election Inconveniences—means For Their Removal.
• Section XI.: Collateral Advantages, Referable to the Situations of Electors, Placemen, Lords, &c.
• A Sketch of the Various Proposals For a Constitutional Reform In the Representation of the People, Introduced Into the Parliament of Great Britain, From 1770 to 1812.
• Radical Reform Bill, With Extracts From the Reasons.
• Preliminary Explanations.
• Title of the Proposed Act.
• Preamble.
• Section 1.—: Seats and Districts.
• Section 2.—: Electors, Who.
• Section 3.—: Eligible, Who.
• Section 4.—: Election Offices.
• Section 5.: Election Apparatus.
• Section 6.—: Promulgation of Recommendations In Favour of Proposed Members.
• Section 7.—: Voters’ Titles Pre-established.
• Section 8.—: Election, How.
• Section 9.: Election Districts and Polling Districts, How Marked Out.
• Section 10.—: Vote-making Habitations, How Defined.
• Section 11.—: Members’ Continuance.
• Section 12.—: Vacancies Supplied.
• Section 13.—: Security For the House Against Disturbance By Members. †
• Section 14.—: Indisposition of Speakers Obviated.
• Appendix, Including General Explanations.
• Radicalism Not Dangerous. Extracted From the Mss. of Jeremy Bentham. *
• Part I.—: Introduction.
• Section I.: Radical Reform Bill Recapitulated.
• Section II.: Persuasion of the Dangerousness of Radicalism—cause of It, and of the Vituperative Expression Given to It.
• Section III.: Terms of the Accusation,—speeches From the Throne, 16 Th July and 21 St November 1819.
• Section IV.: The Accusation In General Terms—counter-averment.
• Section V.: Plan of This Defence.
• Part II.—: Deference From the General Nature of the Case.
• Section I.: Conditions Necessary to a Man’s Embarking In Such a Design.
• Section VII.: Concurrence In Any Other Extensive Plan of Spoliation Impossible.
• Section VIII.: Concurrence of Any Constituted Authorities Impossible.
• Section IX.: Accomplishment Impossible—design Impossible.
• Section X.: The Talked-of Spunge No Proof of the Design.
• Part III.—: Defence From Experience In the Case of the United States.
• Part IV.: Defence From Particular Experience In the Case of Ireland: Years 1777 Or 1778, to 1783.
• Section I.: Analogy Between This and the Previous Case.
• Section II.: Democratic Ascendency, How Produced.
• Section III.: Fruit of Democratic Ascendency a Golden Age.
• Section IV.: Coincidence of Its Characters With Those of Radicalism.
• Section VI.: Extinction of Democratic Ascendency and Reform—restoration of Monarchico-aristocratical Ascendency, and Its Consequences.
• Conclusion.

SECTION VI.

JUDGE’S POWERS—EXEMPTIONS—CHECKS.

Introductory Note.

Satisfactory it cannot but be, and that in no small degree, to any one who enters upon a subject of such importance and difficulty as that embraced in this section, to have before him a preliminary sketch of the whole of the ground on which he is about to tread, as marked out by the prime and immediate divisions of it. Uses throughout derivable from this exhibition:—Association of clear ideas with the terms employed; relations, as well of accordance as of difference, which have place between the several objects all along made distinctly visible.

1. On the present occasion, as on every other, to will the end, is to will the necessary means. By him by whom the end and the necessary means are thus willed—of those some of which are necessary, those which to him present themselves as most desirable will of course be willed and employed in preference. On the present occasion, those, whatsoever they may be, which to the community in question are deemed most beneficial and least burthensome, are those which will be endeavoured to be employed in preference to others.

2. End in view upon the present occasion: To the existing mode, or say system of judicial procedure, the utter and all-comprehensive inaptitude of which is regarded as demonstrated, namely the system styled the regular,—the substitution of the assumed completely apt summary mode or say system; that is to say, after application made to it of such ulterior powers and arrangements as the all-comprehensive extent hereby given to it will be seen to necessitate: the measure of aptitude being the degree of conduciveness to the aggregate of the ends of justice.

3. Among the means necessary will be seen to be the powers, exemptions, and checks, following: checks—that is to say, to those same powers, and to the power-conferring effect of those same exemptions.

4. In relation to the powers in question, subject-matters of consideration, with reference to that same end and those same means, the following:—

i.Persons—that is to say, sort of persons, to whom the powers in question are proposed to be given: say, power-holders,* who?

ii.Exemption-holder—that is to say, sort of persons to whom the exemptions in question are proposed to be given, who?

iii.Checks proposed to be applied to the exercise of those same powers and to the use made of those same exemptions: say, checks applied, what?†

iv.Subject-matters on, over, or in relation to which, the several powers are to be exercised: say, subject-matters of operation, what?

v. The powers requisite to be exercised, on, over, or say in relation to those same subject-matters: say, powers exercisable, what?

vi.Operators by whom, on the occasion of the exercise given to the several powers, the correspondent operations are performed: say, operators, who?

vii. Relative time of the operations by which such exercise is given to those same powers. This will be seen to be—1. in some instances, actual; 2. in other instances, eventual. Eventual only will of course be the punitive power, for whichsoever of three special purposes exercised:—namely, surmounting obstruction or resistance, or securing subsequent obedience.

viii.Purposes for which exercise will be to be given to these several powers: say, purposes, what?

ix.Occasions on which, for these several purposes respectively, exercise may come to be given or require to be given to those several powers: say, occasion, what?

5.—i. On the present occasion, sole power-holder the Dispatch Court Judge.

ii.Exemption-holders, he and the persons by whose hands he operates.

iii. Persons to whom the checks apply, those same power-holders and those same exemption-holders.

6.—iv.Subject-matters of operation:—1. things; 2. persons.

7.—i. The things in question are either—1. intrinsically valuable; or, 2. relatively valuable.

8. By things relatively-valuable, understand things which are such with relation to things infrinsically valuable. Such are all documents and other written instruments of which it may be of use to the Judge as such to have possession: principally for the purpose of determining the disposition to be made of things intrinsically valuable, and giving facility to the making of it. In the number of these same things relatively valuable, will be all those the possession of which may be necessary to the application of any of the powers here in question.

9. Things intrinsically valuable are either—1. corporeal—or 2. incorporeal, or say fictitious.

10. Things corporeal are—1. immoveable; for example, portions of land, with or without edifices thereon erected, or works therein made; 2. moveable; 3. complex—that is to say, composed of things immoveable, with or without moveables thereto belonging; and with or without things incorporeal spoken of as attached or otherwise belonging to things or persons.

11.—ii.Persons on or in relation to whom, in quality of subject-matters of operation, powers will have to be exercised, are either—1. official persons, or say judicial functionaries; or, 2. persons at large.

12. The official persons are judicial subordinates. These subordinates are either—1. those which are such with relation to the judge himself; or, 2. those which are such in relation to the judges of other courts; and in particular the Equity Courts here in question.

13.—v.Powers exercisable in relation to these same subject-matters. These are distinguishable into—1. Powers considered without reference to the application made of them; or say, powers in the abstract; 2. Powers considered with reference to and expressive of the application made of them; or say, the several purposes to which the exercise given to them applies itself;—say, powers applied.

14.—i. Powers in the abstract, are—1. the prehensive; followed of necessity by 2. the dispositive; 3. the imperative. Followed of course by, and correspondent to, power prehensive, is, in every instance, in relation to the same individual subject-matter, power dispositive: for whatsoever subject-matter is for any purpose of justice taken in hand, whether it be thing or person, must for that same purpose be in some ulterior way disposed of. For the several modifications of the disposition capable of being thus made, see below, Power applied.

15. Applicable as well to persons as to things, are—1. the prehensive; and 2. the dispositive: owing to the nature of the subject-matter, applicable to persons alone and not to things, is the imperative.

16. According to the nature of the act by which compliance is manifested towards the exercise given to it, power imperative is either—1. jussive, or 2. inhibitive, or say prohibitive: jussive, where it is by relative motion that the compliance is manifested; inhibitive, where it is by relative rest that the compliance is manifested. Positive is the name given to the act when it is by relative motion that it is to be performed, or say exercised; negative, when it is by relative rest. Synonymous to a negative act, is an act of forbearance, or say abstinence; corresponding verb, to forbear, to abstain from.

17. Reference made to the relative time of the ministerial negative act called for, an inhibitive power is distinguishable into—1. perpetually inhibitive; or, 2. suspensive, or say sistitive.

18. Considered as being productive of the effect sought by the exercise given to it, power imperative is termed coercive; the effect, coercion:—power jussive, compulsory, or say compulsive; the effect, compulsion:—power inhibitive, restrictive; the effect, restraint.

19.—ii. As to the applied powers, the names of which are taken from the consideration of the particular purposes to which they are applied, those which on the present occasion there will be need for the employment of, are the following. They constitute the result of the first division made of the great aggregate: some of them will of course require to be subjected to ulterior division, as the objects requisite to be presented to view become more and more particular, and less and less extensive. Powers thus applied are these:—

20.—1. Power sistitive. Of the imperative, this will be seen to be the inhibitive branch, applied by the Dispatch Court Judge to the special purpose of stopping ulterior proceedings in the existing Courts, and in particular the Equity Courts, in which he finds the several suits carrying on, the cognizance of which requires, for the purpose of this system of dispatch, to be transferred to his hands. Operator magisterial, the Dispatch Court Judge: operators ministerial, the appropriate subordinate functionaries belonging to those same existing functionaries. See below, tit. Operators.

21.—2. Power evocative. Of that same imperative power, this will be seen to be the jussive branch applied to the special purpose of causing to be transferred into the possession of the Dispatch Court Judge the subject-matters requisite:—1. Operations; 2. Things; 3. Persons—are these same subject-matters:—1. Operations, or say acts, the several acts which may have to be performed in the course of the proceedings by which commencement, continuance, and termination, will be given to the suit thus evoked into the Dispatch Court:—2. Things, the several things intrinsically valuable, and relatively valuable, the possession of which may become necessary to the exercise given by him to the aggregate of his power: whether things corporeal or incorporeal; corporeal, whether moveable or immoveable:—things relatively valuable, the several written instruments and other documents, if any, that have been exhibited in the coart à quo on the occasion of the suit:—3. Persons, for the special purpose of securing the transference of those same things, and eventually for the elicitation of any such evidence as it may be found necessary to call for at their hands.

22.—3. Power punitive: exercisable on all persons omitting to pay obedience, or applying resistance or obstruction to such power imperative as the purpose in question may require to be exercised by the Judge. Special purpose of it:—by the fear of it, securing obedience to corresponding mandates by the issuing of which exercise is given to the imperative power in its several branches, as above.

23.—4. Power remunerative: exercisable for any special purpose, in so far as fear of punishment is insufficient for the accomplishment of that same purpose. Note, that remuneration, involving in it the necessity of eventual punition for the purpose of obtaining the matter of reward, is in its nature more expensive than punishment; besides being, to a great extent, less certain in respect of the production of the effect aimed at.

24.—5. Power satisfactive: exercisable in relation to persons, if any, by whom suffering shall have been incurred in consequence of aid lent to prehensive power when employed in the endeavour to produce obedience or surmount resistance or obstruction. Included in satisfaction, is compensation.

25.—6. Power self-extensive: exercisable in so far as by experience, or well and specifically-grounded and assigned anticipation, the several other powers hereby instituted and conferred may have come to be, in the eyes of the Dispatch Court Judge, insufficient for the accomplishment of the all-comprehensive end or purpose of this Act. As to this power, see art. from 71 to 92.

26.—7. Power self-regulative: power of making any such ulterior general regulations as may be found necessary to the accomplishment of that same general end or purpose: both these powers being, as per article 99, subject to instant disallowance by any one of the three several conjunctly supreme constituted authorities: namely, King, Lords, and Commons.

27.—vi.Operators. These will in the first place require to be distinguished into—1. those by whose acts exercise is given to the several powers—say magisterial, the several power-holders; 2. those by whose acts submission, or say compliance, is manifested in relation to the exercise given to those same powers—say ministerial operators.

28. In both cases, the hands employed in the operation may be either the person himself, who is spoken of as the operator, or those of some other person acting in his stead. In the first case, the operation and the operator may be said to be immediate; in the other case, unimmediate. In the first place, calling in aid the Latin language, the operation may be styled an operation propriâ manu; in the other case, an operation alienâ manu.

29. Note, that where the operator is the Judge, and the power exercised is the imperative, the hands employed by the Judge will naturally and most probably be his own; the operation, an operation propriâ manu. Where the power exercised is the prehensive, if the subject-matter be a thing corporeal or a person, the hands employed will be those of a subordinate, styled accordingly a prehensor; the operation accordingly, in so far as the Judge is operator, an operation alienâ manu:—in so far as it is a thing incorporeal, and thence not tangible, the act of prehension will, like the thing said to be prehended, be but fictitious; and, as will be seen, the power really exercised the imperative; and thence the operation performed, an operation propriâ manu.

30. In so far as delegated authority has place, the distinction between operations propriâ manu and alienâ manu has place: the party delegating, operating alienâ manu; the party delegated to, operating propriâ manu.

31.—vii. Relative time. Under this head, nothing presents itself as requisite to be said in addition to what is above.

32.—viii.Purposee, according to the most general and comprehensive description that can be given of them, to the accomplishment of which the exercise given to several of the above-mentioned powers requires to be directed, these:—

33.—1. Giving execution and effect to the ultimate decree, or say judgment, which the Judge, on the consideration of the law applying to the case, and the facts belonging to the case, as presented to his view by the evidence, may see reason to pronounce at the conclusion of the suit of which he has taken cognizance. Call it the ultimate, or say execution-performing purpose.

34.—2. Making appropriate provision before-hand for such execution and effect: namely, by securing the eventual forthcomingness of the several subject-matters, real and personal, necessary. Call it the instrumental, or say execution-securing purpose.

35.—3. Securing the exhibition of such appropriate and needful evidence as the individual suit in question happens to have afforded: namely, by securing the forthcomingness of the source of the evidence in each instance; the source, whether personal, real, or written,—written, consisting of personal exhibited through the medium of real. Call it the evidence-securing purpose.

36.—ix.Occasions on which exercise may come to be given, or require to be given, to the several above-mentioned powers. When considered in the most general point of view, these may be said to be as follows:—

37.—1. For exercise to be given to power imperative, need of obedience, or say compliance, for the several purposes in question, as towards the several mandates requisite to be issued by the Dispatch Court Judge.

38.—2. For exercise to be given to the prehensive power, disobedience, resistance, or obstruction, manifested to the exercise of the imperative power. Subject-matters on this occasion operated upon, as above: persons of all descriptions, things of all sorts, to the prehension of which resistance or obstruction is opposed; or to the subsequent disposal of them according to their several destinations.

39.—3. For exercise to be given to power satisfactive, power compensative included, need of compensation for damage sustained by aid lent in case of necessity to functionaries occupied in surmounting resistance or obstruction, as above.

40.—4. For exercise to be given to power remunerative, need of the motive produced by hope of good, in aid of the operation of the motives produced by fear of evil, as applied by exercise given to power punitive, for the purpose of surmounting resistance or obstruction, as above.

41. To one or other of these heads will be found referable whatsoever operations require to be performed, or written instruments to be exhibited, in the course of judicial procedure, whatsoever may be the subject-matter of the suit:—of procedure, whether in a case called civil, or in a case called penal.

Enactive.

Art. 1. The Judge of the Dispatch Court, when, and so soon as, he has determined to take to himself the cognizance of any suit at that time depending in any one of the Equity Courts in question, will make the arrangements requisite for staying all proceedings in that same court. Name of the mandate, by the delivery of which such stoppage will be effected, a Sistition mandate. Form as per Schedule No. VIII. For the course to be taken, for determining whether or no to take cognizance of the suit, see Section X. Suits cognisable, &c. and Section XIV. Examination of Solicitors.

Enactive—Instructional.

Art. 2. Persons, to all or any of whom such his sistition mandate will, upon occasion, be addressed, the following:—

i. The Town Solicitors, and where need is the Country Solicitors, of the several parties to the suit.

ii. The several parties to the suit.

iii. In the three several branches of the Chancery Court,—to-wit, the Lord High Chancellor’s, the Vice Chancellor’s, and the Master of the Rolls’ Courts,—the several Masters in Chancery.

iv. In the Equity side of the Exchequer Court, the Remembrancer.

v. Any other persons, if any such there be, to whom, for the effectuation of the stoppage, it is, in the judgment of the Dispatch Court Judge, necessary that such sistition mandate be addressed.

In so doing, it will be his object—to produce the requisite effect, in the speediest manner, and with the fewest mandates possible.

Art. 3. In a case in which the Equity suit is by a Bill of Injunction, having for its object the staying the proceedings in a Common Law suit,—power to the Dispatch Court Judge, to take cognizance of such Equity suit, in the same manner as of any other Equity suit; and in the same manner to hear and determine, and give execution and effect to the suit: and, for this purpose, to issue sistition mandates, if necessary, to any functionaries employed, or about to be employed, in the Common Law suit, the proceedings in which had been, by the Bill of Injunction, stopped; as well as to attorneys and any other persons concerned. As to Ecclesiastical and other Courts, see Arts. 69 and 70.

Enactive.

Art. 4. Exceptions excepted,—persons of all sorts—things of all sorts, written instruments included,—for dealing with all such matters, in all such modes as for the purposes of this Act, that is to say, the establishment and employment of the new judicatory in question, may be requisite and necessary, power is hereinafter given to the Dispatch Court Judge.

Instructional—Expositive.

Art. 5. Prehension. In this may be seen an operation, the performance of which may be requisite and necessary, in relation to persons of almost all sorts, and things of all sorts without exception.

Instructional—Expositive.

Art. 6. Prehension and Imperation. In this may be seen the operation, which it may be requisite and necessary to perform, in relation to persons of all sorts, exceptions excepted, as per Article 27—prehension, that is to say, in some instances, without need of antecedent imperation; in other instances, not unless and until imperation relative thereto has antecedently been performed.

Art. 7. In relation to the same subject-matter, followed, of course, must exercise given to power prehensive be, by exercise given, in some shape or other, to power dispositive: for whatsoever is for any purpose of justice taken in hand, will, in some ulterior way have to be disposed of.

Enactive.

Art. 8. Power Prehensive and Dispositive. Power to the Judge to cause prehend, and, for the general purpose of giving execution and effect to his decrees and other mandates, to make disposal of all such matters, the disposal of which is, in any way, necessary to the fulfilment of any purpose of this Act.

Expositive.

Art. 9. Subject-matter, relatively valuable,—subject-matter intrinsically valuable: under the one or the other of these heads will all the subject-matters here in question be comprised.

By subject-matters relatively valuable, understand all such as are so, relation had to the suit, be it what it may, which, on the occasion in question, for the purpose of this Act, the Judge is thus taking out of the hands of any at present existing Court, into his own hands.

Art. 10. Necessary to the enabling him to make disposal of all such intrinsically valuable things as are subject-matters of the suit in question, will be the possession of those same relatively valuable subject-matters: possession, that is to say, in conformity to their several and respective natures.

Enactive.

Art. 11. In relation to every suit, of which he takes cognizance, power is accordingly hereby given to the Judge, as far as may be, to take into his possession* all such documents as at that time are, or shall thereafter have come to be, in the possession of the Equity Court, in which such suit is in pendency; to-wit, whether such Court be the Master of the Rolls’ Court, the Vice-Chancellor’s Court, or the Lord High Chancellor’s Court.

Art. 12. For this purpose, he will issue, addressed to the Registrar of the High Court of Chancery, his document-transference mandate: tenor of it as per Schedule No. IX., giving therein notice of a day, on or before which the matters in question shall be delivered to the Registrar of the Dispatch Court, together with a list of the documents so delivered, and of all others, if any, which are expected, and a certificate, declaring that the articles in that same list contained, are all that have been respectively received or expected.

Art. 12*. The power of taking* into his possession the documents belonging to the suit, why thus conferred on the Judge of the Dispatch Court?

Answer.—Reasons:—

i. To the original existing Equity Court, unless and until restored to it, as per Section XXIII. Eventual Retro-transference of Suits, they cannot be of any use.

ii. To the Dispatch Court it may very naturally happen to them to be of use.

iii. For guidance to subsequent relative proceedings, knowledge of those antecedent is, in the nature of things, generally speaking, necessary: and, to this general rule, the particular case here in question presents no exception.

iv. The principle is recognised in practice, in the case of the transference of the record from the Common-Law Courts in Westminster to the County Courts at the Assizes,* on the occasion on which the trial is performed: that is to say, after an interval of six or twelve months, at the end of which, if anything is done, it is nothing more than the elicitation of the evidence; an operation which might so much better have been performed at the commencement.

Instructional.

Art. 13. In the most ordinary state of things,—on the part of the proposed defendant, the forthcomingness, besides the advantage of contributing to secure the performance of the service, as above, in the event of its being found due, will have the effect of throwing more light upon the state of the case, in respect of the matter of fact, than could be thrown upon it by the presence and examination of any other person: and, in this case, by such his presence, both these desirable purposes would be accomplished at the same time. But if, in consequence of such examination, as above, the state of the case appears to be such, that no benefit is likely to be produced, either to the other party or to the defendant himself, by such his attendance—at any rate, not till some light has been thrown upon the facts of the case by the examination of some other person or persons—in this case, not of the defendant, but of such other person or persons, will the examination be taken in the next place.

Thus much, as to things really existing, called by lawyers things corporeal. As for things fictitious (called by them things incorporeal, or in one word rights,) and that which prehension will be found to mean, when applied to them, and in particular those rights in the prehension of which functionaries under the name of sequestrators are wont to be employed in and by the Equity courts,—as to these things, for the prehension of them, no intermediate agent will be necessary.

Enactive.

Art. 14. If on the day so appointed, such transmission, as per art. 12, has not been effected, the Judge will, on the then next day or at any day thereafter, dispatch to the official chamber of the Registrar, a Prehensor, with directions to prehend, and bring with him the instruments in question, wheresoever they are to be found. For what belongs to a prehensor, see Section VII. Prehensors, &c.

Art. 15. To the exercise of this power should any resistance be made,—power to such prehensor to prehend and bring before the Judge, any or every person so resisting: whereupon,—after taking and making entry of the examination,—to wit, of all persons so resisting, and of any such other persons to whom it has happened to be in a condition to furnish evidence in relation thereto,—he will, if he thinks fit, whether for the purpose of procuring compliance, or for that of punishment for the transgression, commit any person so resisting, to any such prison in the city of London, or any one of the four thereto contiguous counties, as to him shall seem meet. Name of the warrant, or say mandate, issued for this purpose, an Incarceration mandate. Form thereof, as per Schedule No. X.

Art. 16. Term for and during which the incarceration produced by such commitment shall be appointed to continue,—any number of days, not exceeding seven entire days, exclusive of odd hours, reckoning from the moment of commitment:—the hour as well as day of liberation being in the mandate of commitment mentioned;—which said time may, as often as shall be judged by him to be needful, he renewed by a fresh incarceration mandate, and may at any time be terminated by a disincarceration mandate. Form thereof, as per Schedule No. XI.

Art. 17. To the exercise of such prehensive power should any resistance or destruction be opposed, power to the prehensor to give exercise to his appropriate aid-compelling power, as per Section VII. Prehensor, &c. art. 15.

Art. 18. For giving execution and effect to such document-transference mandate, as per art. 12, power to such prehensor to call upon any person belonging to any office appertaining to any such Equity Courts, to aid him in the selection of the appropriate instruments: and, in case of refusal, or apparently intended delay, in respect of the performance of such service, to prehend any such person, and bring him before the judge, who will accordingly deal by him as per art. 14, 15, 16.

Art. 19. Of all proceedings carried on in relation to the exercise given to any of the above powers,—including all evidence thereto relative,—the Registrar, under the direction of the Judge, will take minutes, and make entry in the register.

Art. 20. In these minutes will be contained not only the evidence elicited, but the questions, or say interrogatories, by which the several statements were respectively elicited; and in both instances the very words which were employed.

Art. 21. After such transference as above,—to whatsoever written instruments or other documents it shall have happened to be delivered in, or tendered to, any office belonging to the above-named Equity Courts (as per art. 11) the officer having the direction of the business of such office is hereby required, on the earliest day thereafter possible, to transfer the same to the office of the Dispatch Court Registrar (as per art. 12:)—and, to every such subsequently-received instrument, apply the powers for securing the transference thereof, as above:—and moreover, to these several provisions the Lord High Chancellor, Vice-Chancellor, and Master of the Rolls, are hereby required, in case of need, to do what depends upon them respectively towards giving execution and effect.

Art. 22. To the Equity side of the Court of Exchequer apply the several powers, by articles 11 to 20 applied to these several above-mentioned divisions of the Equity side of the High Court of Chancery: but in such sort, that whatsoever in those same Chancery cases applies to the Registrar, applies, in the case of the Exchequer Court, to the Remembrancer.*

Art. 23. Subject-matters intrinsically valuable, or in relation to which exercise may be given to the Judge’s power of prehension, are—all subject-matters, of which in the nature of things the prehension is possible.*

Expositive.

Art. 24. These same subjects are either persons or things: things are either corporeal or incorporeal; things corporeal, again, are either immoveable or moveable. Follow exemplifications and explanations presently.

Art. 25. In relation to things intrinsically valuable, apply all the several powers as above, by articles 11 to 20 applied to the purpose of surmounting non-compliance, resistance, and obstruction to prehension and disposal of things relatively valuable.

Art. 26. Purposes, for which such prehension may be made—(prehension, whether of things or persons)—these:—

i.Execution-effecting purpose: giving execution and effect to that disposition of substantive law, on which the suit is grounded:—execution-effecting; or say, ultimate or effective purpose.

ii.Execution-securing purpose: securing to the Judge the means of effecting the aforesaid effective purpose, in the event of his seeing reason so to do:—execution-security; or say, interlocutory, intermediate, interventional, provisional, enabling, instrumental, or defeasible purpose.

iii.Evidence-securing purpose: making effective provision for the elicitation of such evidence as it has happened to the suit to afford, in relation to the several matters of fact on which the demand and the defence respectively shall have been grounded:—securing the elicitation of the evidence; that is to say, by securing the forthcomingness of the persons, things, and written instruments, or other documents, which are respectively the sources of it.

Instructional.

Art. 27. On the occasion of exercise given to the Judge’s prehensive power,—mementos, which, for his guidance in respect of the choice to be made by him of subject-matters of such exercise, he is required to bear in mind, are these which follow:—

i. Introductory observation, this: not only in respect of the subject-matter of the suit, but in respect of money for incidental costs, may need of prehension have place. Hence, to any degree small may be the sums, for the discharge of which prehension may have to be made: and to any degree indigent may persons be, whose misfortune it is to have been made defendants.

ii. In making prehension for the execution-securing purpose,—take such subject-matters as are applicable to the execution-effecting purpose, in preference to such as are not.

iii. Accordingly, in preference to persons† take things: that is to say, things of all sorts—moveable, immoveable, and incorporeal.

iv. Among things;—in preference to those which are valuable to no person but the owner, and other things not valuable to the plaintiff, take such as are valuable to the plaintiff,—that is to say, capable of being rendered so by transference of possession, temporary or definitive.

v. In preference to things, by the prehension of which no effect can be produced, other than that of burthen‡ to the defendant,—take those by the prehension of which benefit as well as burthen is producible; that is to say, benefit to the acquirer thereof, as well as burthen to the loser.

vi. Among things, by the prehension of which benefit as well as burthen is producible,—take in preference those by which the greatest benefit to the plaintiff is producible, in preference to those by the prehension of which no benefit is producible to the plaintiff, or not so much as by the prehension of other things.

vii. Accordingly, in preference to things incorporeal, or say rights not transferable,—take things corporeal, or rights transferable.

viii. In preference to a thing, in which a third person,—that is to say, a person who is not a party to the suit—or say, who is a stranger to the suit, has an interest, or say a share,—take things in which no person other than the party in question has a share.

ix. Not that by any such extraneous interest any objection will be afforded, if it be clear that by the prehension of the thing in question, the interest of such stranger to the suit is not damnified; or, being damnified, will have received adequate satisfaction in every shape, compensation for the damage included.

x. Take, for example, the mode of prehension styled, under the existing system, foreign attachment:—stopping the payment of a debt due to the defendant in the suit; stopping the payment, that is to say, with a view to its being actually or eventually made to the plaintiff in that same suit; for, foras-much as the money is in all events to be parted with, it will commonly make no difference to the stranger to the suit in question, whether it be by the one party or the other that it is received.

xi. Of the case where, by the prehension, the interest of a stranger to the suit is liable to be affected, not this instance. At the hands, whether of an individual or of Government, the defendant receives,—in the shape of salary, for example,—a continuous remuneration for correspondently continuous service due. If so it be, that by abstraction made of the portion in question of such his pecuniary means, the service capable of being rendered by him is liable to be rendered less valuable to the stranger to the suit, as above, the detriment to the interest of the stranger will be to be taken into account.

xii. In preference to a subject-matter, of which the party has not the actual possession, but only in relation to it the right of possession, to be taken in future, absolutely or in contingency,—take one of which he has the actual possession. For example, to the prehension of an estate in land, in remainder or reversion, for the purpose of raising money by the sale of it,—take in preference an estate in possession, of equal marketable value. For, commonly, such thereafter-eventually-about-to-be-possessed estate will not sell, without more disadvantage to the party than in the other case.

xiii. Note, that if of things, by the prehension of which burthen alone is produced, prehension is allowed to be performed,—it is only, either for the execution-securing purpose, or for the evidence-securing purpose: for, if by execution no benefit to the plaintiff is produced, the only beneficial execution-effecting purpose is, instead of being fulfilled, disfulfilled. By the imposition of any such burthen, no good purpose other than that of punishment can in any shape be produced; and, for punishment, by the supposition, in the sort of suit in question (namely, a purely civil suit,) no demand has place. In a suit of this class, if any such demand has place, it must be on the ground of some transgressions committed in the course of the suit in the Dispatch Court.

xiv. Among things, by the prehension of which benefit to the plaintiff will be produced, as well as burthen be imposed on the defendant,—take those, by the prehension of which without lessening that same benefit, burthen the least afflictive will be imposed on the defendant, in preference to those, by prehension of which, burthen more afflictive will be imposed on that same defendant.

xv. Example.—For the execution-effecting purpose,—in preference to household goods or stock in trade, for the purpose of their being sold, take portions of Government annuities, commonly and familiarly called, money in the funds or stocks.

xvi. In preference to things for the prehension of which the more complex, and thence the less surely effective and more expensive, mode of operation is necessary,—take those for the prehension of which the less complex, and thence the more surely effective and less expensive mode will suffice.

xvii. Example: here likewise, the preference given, as above, to prehension of money in the funds.

xviii. Further exemplification of the mode of minimizing afflictiveness:—Whether it be for the execution-effecting or the execution-securing purpose,—take, in preference to useful household furniture, trinkets and furniture merely ornamental: and, in preference to necessary tools and other instruments of workmanship, household furniture, useful as well as ornamental; in a word, all such things as are not necessary, in preference to all such as are.

xix. For the purpose of effecting the transmission of a right to a valuable thing for the use of the plaintiff, at the charge of the defendant,—never will the Judge seek to employ the unwilling hand of another person, in preference to the effecting it by his own hand, or by willing hands under his command.

xx. Accordingly, only for the elicitation of evidence,—whether for the purpose of determining the right to the subject-matter in dispute,—or for the purpose of ascertaining the existence, and securing the eventual forthcomingness, of the things in question,—or of property of the defendant to be received in lieu of them,—will the Judge prehend the body of the defendant: never, for no other purpose than such as the compelling his signature to a deed by which the right to the thing in question is transmitted to the plaintiff, or to any person on his account. For, if effected by the signature of the Judge, the transmission of the property might be the work of no more than a single instant: if endeavoured at, by compulsion applied to the individual, it might be staved off for years, or be prevented altogether.*

Art. 28. On whatever occasion the Judge performs prehension at the charge of one party,—it will be his care to exact, at the charge of the party at whose instance, or in whose favour he performs it, such adequate counter-security against abuse, as the nature of the case, and the circumstances of the parties, appear to him to require.*

Enactive.

Art. 29. In regard to any mass of property, constituting the whole or any part of the subject-matter of the suit,—power to the judge to place the same, for the purpose of the suit, under the care and management of persons, one or more,—in such number as he shall deem requisite,—to be chosen and approved of, by joint choice and consent of all persons interested therein: and if, after the party or parties on one side have made their choice, the party or parties on the other side refuse,—or, after invitation received, and adequate time allowed, omit,—to make their choice, nominating accordingly the same, or some other person or persons,—power to the Judge himself to make such choice and nomination in their stead. Name of a person so appointed, a Consignee. As to these, see Section VIII.

Art. 30. At the instance of any party to the suit, or of his own motion,—power to the Judge, at any time, to cause to appear before him, and submit himself to word-of-mouth examination, every such Consignee, or say Trustee, touching his proceedings on the occasion of the trust.

Instructional.

Art. 31. Note, that this special power he would have in virtue of his general powers. Sole cause of the special mention thus made of it,—maximization of the security against misconception and misinterpretation, in relation to a matter of such essential importance: to the end that the efficiency* of this same security may be the more clearly and fully conceived.

Art. 32. Reciprocally beneficial will be the application made of these several powers: at the charge of the Plaintiff for the benefit of the Defendant, as well as at the charge of the Defendant for the benefit of the Plaintiff.

Instructional.—Ratiocinative.

Art. 33. For the guidance of the Judge, are these suggestions delivered; not, in any instance, for the imposing on him a peremptory obligation; forasmuch as, to an extent more or less considerable, in many instances, it is not on any one of these pairs of competing circumstances considered by itself, but on several of them considered in conjunction, that, upon the whole, the course most proper to be taken will depend.

Enactive.—Ratiocinative.—Expositive.

Art. 34. In vain would be created, and conferred on a Dispatch Court Judge, the powers in general terms above mentioned, if the giving special and effective exercise to them depended on the concurrence of any authority, co-ordinate or super-ordinate to his own.

Accordingly, deemed wrongs, and constituted offences, are hereby all acts having for their object or tendency, the frustrating or weakening the relief hereby intended to be administered to suitors and persons having need to become suitors; and against those wrongs, provided will be seen hereafter the several appropriate remedies, by means of the correspondent specific powers.

Acts hereby constituted offences, by whomsoever committed, whether he be a suitor, a public functionary, or an individual at large, are accordingly those here following:—

i. Non-compliance with, or say disobedience to, or non-observance of, any mandate issued by the Judge for the sistition [Editor:?] of the suit, or for the transference of any written instrument or subject-matter thereto belonging, as per articles 1, 5, 6, 7, 8, 12.

ii. Resisting the transference of any written instrument, or any other document, from any other Court to the Dispatch Court: resisting—that is to say, by physical force, in an immediate way applied.

iii. Obstructing such transference: obstructing, that is to say, preventing, or needlessly retarding it, or doing any act in the intention of preventing, or needlessly retarding it.

iv. Purposely forbearing, or through negligence omitting, to afford aid to such transmission, when, by or by authority of the Dispatch Court Judge, requisition of such aid has been made.

v. Of anything immoveable, resisting or obstructing, the prehension or prehension-following, or say post prehensive, legal disposal, when the thing has been prehended, or endeavoured to be prehended, by authority from the Judge, for any purpose of this act.

vi. So, of anything moveable.

vii. So, of any incorporeal subject-matter of property: in which case the resistance or obstruction may be figurative, corresponding to the nature of the subject-matter.

viii. Retaking, or endeavouring to retake, any written instrument or other document, or thing, immoveable or moveable, after prehension as above.

ix. Resisting or obstructing the prehension or consequent legal disposal—say, the post-prehensive disposal—made, of any person, when endeavoured to be effected, for or on account of, any such resistance, obstruction, omission, or recapture, as aforesaid.

x. Resisting, or obstructing, in the Justice-chamber, any of the proceedings of the Dispatch Court, during the sitting thereof.

xi. In relation to any relatively important matter of fact, endeavour used to produce deception in the mind of the Judge acting as such: endeavour, by whatever means—whether immediately, or through the medium of any other person, or of any thing; and whether by communication of deceptions information, by word of mouth, or in writing, or by any other signs, evanescent or permanent, or by suppression of instructive information.

xii. Liberating, or endeavouring to liberate, any person, by force or fraud, from any such prehension, or post-prehensive legal disposal, as above.

Exemplificative.

Art. 35. Of obstruction to the proceedings of the Dispatch Court Judge, during the sitting of the Judicatory,—exemplifications these:—

i. Motion, produced in any mode productive of that effect.

ii. Sound, produced in any mode, inarticulate or articulate, by its loudness, or otherwise, productive of that effect.

iii. In particular, ungrounded ill-will or contempt, by language, gesture, or deportment, manifested towards the Judge, or any other person, during the sitting of the Judicatory.

iv. Continuance to speak, after silence imposed by the Judge.

Art. 36. Of the modes of such effectuation of, or endeavour at, deception, examples are the following:—

i. False assertion; whether spontaneous or in answer to any question, or say interrogatory, put in relation to the suit in hand—whether by the Judge, or by any other person hereby authorized to put the same:—interrogatory, whether in the oral, or say word-of-mouth form, or in the written form: oral, including all other evanescent forms of discourse; written, all other permanent forms of discourse.

ii. Forgery, of, or committed upon, any document, employed or designed to be employed, or of a nature to be employed, in the character of evidence, in any suit transferred to, or instituted in, or designed to be transferred to, or instituted in, the Dispatch Court: forgery, whether defalcative, fabricative, or alterative.

iii. Suppression, as applied to any evidentiary document, in the form of writing, or in any other tangible and permanent form:—suppression, to wit, whether definitive (destructive included) or temporary; and whether of the document itself, or of the information of its existence.

iv. Personation: committed by the delinquent’s pretending to be this or that other person.

v. Suppression of any material evidence which might otherwise have been orally delivered: suppression—of evidence, from whatsoever source, personal, real, or written; and whether by deception, by physical force, by intimidation, or by hope or receipt of remuneration.

vi. Production of, or endeavour to produce, by any other means, in the mind of the Judge, deception in relation to any relevant and relatively important matter of fact; relation had to the event or to the course of the suit.

Enactive.—Instructional.

Art. 37. Evil-consciousness, and heedlessness,* or say, want of due attention. In meting out the quantity of punishment, the Judge will bear in mind, and hold up to view, the differences produced by these two circumstances, in the evil of the offence.

Ratiocinative.

Art. 37*. On evil-consciousness depends almost the whole of the evil of the second order, composed as it is of danger, and alarm: danger, of repetition by the delinquent himself, or others similarly circumstanced; alarm, produced by the apprehension of that same danger. As to the evil of the first order, it consists in the suffering actually felt by individual sufferers, where there are any such persons, as in the case of a private offence there are always—in that of a purely public offence, never. In the case of a purely public offence, where the subject-matter of the offence is a subject-matter of property—money, say, or money’s worth—and nothing else, were it not for the evil of the second order, as above, no preponderant evil at all would be produced: no suffering to set against the enjoyment, the prospect of which constituted the motive to the offence. The evil of the second order, consisting as above of danger and alarm, is in the case of heedlessness, at the utmost small, commonly next to none; in the case of evil-consciousness, with intention naturally persisting, in extent in some cases commensurate with that of the whole country and its population—witness the case of an offence contributing to war, whether foreign or civil—it is in most cases indefinite, not to say infinite.

Enactive.

Art. 38. Power to the Dispatch Court Judge, to cause to be prehended and incarcerated, any person by whom any such frustration, as per art. 34, shall have been endeavoured to be effected:—time of prehension, the very instant after the commission of the offence, or as soon thereafter as may be; and this, whether the time and place of the endeavour be that of the sitting of the Judicatory, or, if need be, any other.

Art. 39. Term of incarceration, no longer than seven full days: but renewable at discretion, toties quoties, by a fresh mandate, or addition made to a former mandate, as often as the purpose shall be found to require.

Ratiocinative.

Art. 39*. Why such renewals, and these repeated at the end of such short terms?—

Answer.—Reasons:—

1. That by forgetfulness, the offender may not be left in a state of sufferance for a longer term than one week.

2. That the power-controuling eye of public opinion may be the more frequently drawn down upon the transaction.

Instructional.

Art. 40. Safe custody merely, or coercion,* —whichsoever of these two different objects it is that the purpose requires, the Judge will, on this occasion, be careful to have in view.

Expositive.

Art. 41. Coercion is either positive or negative: positive, that is to say, compulsive, or in one word, compulsion: negative, that is is to say, restrictive, or, in one word, restraint.

Enactive.—Instructional.

Art. 42. If safe custody only be the object, his endeavour will be to find some apt individual, to whom, with the consent of the person to be placed under such custody, he may accordingly be so placed.

Art. 43. Only in case no such apt person can be found, will the offender in question be consigned to a prison.

Art. 44. Some one person being responsible as consignee, pecuniarily responsible may be rendered other persons, in any other number, in so far as necessary.

Art. 45. When coercion is the purpose—as for example, compelling disclosure, or actual delivery, of a thing moveable,—apt for this purpose, as consignee, can be no other person than the keeper of a prison.

Instructional.

Art. 46. In what prison the incarceration shall in this case have place, the Dispatch Court Judge will determine: regard being had to convenience in respect of nearness of the prison to the Justice-chamber, and aptitude of the accommodation capable of being afforded by it.

Art. 47. For the interval, during which a person about to be consigned to the custody of a friend of his choice, is on the look-out for such friend,—he will continue in the custody of a prehensor—principal or depute: and in such custody he will continue, and, if need be, go about in quest of such consignee, until the time allotted by the Judge for the purpose has elapsed.

Ratiocinative.

Art. 47*. Extinguished on this plan will be the delay, expense, and vexation, attached to the practice of holding to bail, as at present carried on.

Enactive.

Art. 48. On, or at any time after, such incarceration,—power to the Judge to liberate the offender, on his finding security for the eventual surrender of his body, in any such mode or modes, in, and by which, to all parties taken together, the least quantity of inconvenience (danger of loss included) promises, in his opinion, to be produced.*

Instructional.

Art. 49. Referable to one or other of four heads will be found every remedy capable of being applied to the wrong done by any maleficent act (those here in question included,) which, by prohibition, explicit or virtual, has been converted into an offence: namely,

i. The preventive, or say the anticipative, or antecedently preventive.

ii. The suppressive.

iii. The satisfactive, including the compensative.

iv. The punitive, or say the subsequentially, or ulteriorly preventive.

Remedies preventive or suppressive are the above powers, and such applications as are hereby intended to be made of them.

Instructional.

Art. 50. Persons by whom, for the application of any one of these remedies, the requisite proceedings may be instituted, these—

i. An individual alleging himself to be, or in danger of becoming, a sufferer by any hereby, as above, prohibited offence.

ii. His Majesty’s Attorney-General.

iii. The Dispatch Court Judge himself, of his own motion.

Instructional.—Expositive.—Enactive.

Art. 51. Now, as to the punitive remedy. For the misdemeanours in art. 34 mentioned—all of them detrimental to the ends of justice in general, and to the end and purpose of this institution in particular,—the Judge will apply pecuniary punishment, or say mulct, and imprisonment, or say incarceration, at option and at discretion: at option, that is to say, having the choice whether he will employ one of the two, and which, or both; at discretion, that is to say, having at his choice, in regard to whichever of them he employs, the quantity of it he will employ.

Instructional.—Exemplificative.

Art. 52. Note well—that the suffering, and thence the punishment, for the offence, does not commence, till after, and at the point at which, the enjoyment, and thence the profit, in all shapes, from the offence, is taken away: to-wit, by pecuniary loss, or by other punishment, to an equivalent amount. A punishment, which falls short of being equivalent to the profit by the offence, operates, by the exact amount of the difference, in the character of a reward. This, accordingly, will the Judge, in meting out the quantity of the punishment, be careful to bear in mind and to apply to practice.

Art. 53. Mulct, appointed for the species of offence (suppose) £5: profit by the individual offence, £10. Consequence of the proposed penal law, reward to the amount of £5. In name and outward show, the law is penal: in effect, it is remunerative: operating in a way the exact reverse of that which, in appearance at least, was intended.

Art. 54. In meting out the quantity of the mulct, the Judge will be directed not by the absolute quantity, but by the relative quantity, relation had to the pecuniary circumstances of the delinquent. In the breast of a person, by whom property is possessed to the value of £40,000, less suffering will naturally be produced by a mulct of £10,000, than in the breast of a person who has no more than forty shillings would be produced by a mulct of ten shillings. Such is the interpretation which he will accordingly put upon the statute, called the Bill of Rights, in which it is said, “excessive punishment ought not to be inflicted.”*

Art. 55. Offence, say perjury, or subornation of perjury. Punishment (suppose) transportation, or imprisonment with hard labour for seven years. Less afflictive might it be to the offender to lose half or more of his disposable property, though it were £40,000, or £400,000, than be subjected for that length of time to that species of punishment.

Instructional.

Art. 56. For information as to the pecuniary circumstances of the offender,—the Judge, in so far as in his judgment the relative amount of the mulct contemplated renders it worth while, will make special inquiry: and this, as well by the evidence of the offender himself, as by evidence from any other quarter, or say, extraneous evidence. As to this, see Section XIX.: see also, as to the undangerousness and positive advantage of the powers herein conferred, note at the end of Section XXIV.

Art. 57. For the bringing into the shape of money whatsoever he thinks proper to be taken in the way of mulct, the Judge will take into account, and so far as meet is, take in hand and dispose of, whatsoever property the delinquent himself has power to dispose of.†

Enactive.—Instructional.

Art. 58. Exceptions excepted,—the pecuniary punishment, in so far as the means of undergoing it have place, will be preferred to the corporal.

Ratiocinative.

Art. 58*. The pecuniary, why preferred to the corporal punishment?

Answer.—Reasons:—

i. In the case of the pecuniary, to wit, out of the evil produced by the punishment, cometh forth—over and above the good consisting in the subsequentially-preventive efficiency of punishment, additional good: to wit, profit, applicable to the use of the individual wronged, or the public, or both, as the circumstances of the case may require: out of the corporal punishment,—good, over and above such preventive efficiency, none.

ii. In this case, imprisonment will be the punishment specially suited to the circumstances of the indigent,—pecuniary, to those of the opulent, offender.

Enactive.—Instructional.

Art. 59. Exception is—where of divers co-offenders one, being relatively indigent, is, as far as can be learnt, likely to receive for any mulct imposed on him, compensation at the hands of one or more who are relatively opulent. In this case, to the opulent it may be proper to apply, in addition to the pecuniary, the corporal punishment; lest after indemnifying his accomplice, he should be in receipt of net profit, in any shape, from the inefficiency of the punishment.

Enactive.—Instructional.

Art. 60. For the offence, be it what it may, where pecuniary is the shape in which, in the whole or in any part, the punishment is applied,—to the purpose of satisfaction, to wit, in the shape of compensation, for the suffering in all shapes produced on the part of individuals, will the produce of the mulct be applied, in preference to the public revenue.

Ratiocinative.

Art. 60*.—Reasons, these:—

i. Not less great is the subsequentially-preventive efficiency of the forced transfer, when employed to the profit of the individual, than if employed to the profit of the public revenue.

ii. Commonly it is even greater; inasmuch as (if there be any difference) if the purse into which the profit goes is that of the individual whom it has been his (the offender’s) endeavour to cause to suffer, and to whom he accordingly bears ill will, the suffering produced by the contemplation of the profit and enjoyment by such transfer will naturally be greater than will be the suffering produced by the contemplation of it, if the receiving purse is that of the public at large, toward which no such ill-will was borne by him.

Enactive.—Instructional.

Art. 61. If the pecuniary circumstances of the party damnified are better than those of the delinquent, the Judge will not take from the delinquent anything beyond what is adapted to the subsequentially-preventive purpose of punishment; for, if he does, the more he takes, the greater will be the aggregate composed of the sufferings of the two parties.*

Ratiocinative.

Art. 61*. The power to administer compensation, and award damages, why thus conferred on the Judge of the Dispatch Court?

Answer.—Reasons:—

i. True it is—that, under the regular system, by Judges are costs alone awarded; by Jury, damages. True: but no reason does this precedent afford, why it should be so under the here proposed summary system.

ii. If a suitor has to pay a given sum, say £20, what matters it to him whether it is by the fiat of a Jury or of a Judge that he has to pay it?—or whether, instead of costs or damages, the word employed be fine? So far as concerns the sum, on one and the same occasion, paid by him,—altogether immaterial* to him, as above, is the difference.

iii. That, in the present case, compensation, for suffering occasioned by misconduct, should be awarded,—is exactly as needful—as decidedly required by justice—as in every other case: but, if awarded at all, it is by this same Judge that it must be awarded; for by no other authority can it be. By a Jury it cannot be awarded, without giving existence to the very evil, which the here-proposed institution is employed to annihilate.

iv. To the Judge, by the supposition, every particular—on the one hand, of the suffering—on the other, of the misconduct by which it has been caused—is immediately and directly known. By no fresh evidence, by no fresh argumentation, could it be rendered more particularly or more completely so.

v. To the cognizance of a Jury would be to be presented, instead of the phenomena themselves,—at the end of an interval, by which the image of the facts in the memory would have been more or less truncated, obscured, and distorted, an alleged description, given by somebody or other (it is neither easy nor material to say who) of these same facts:—a portrait, ornamented on both sides with an embroidery of costly and useless eloquence.*

vi. But if, as above, to the quantity of money allowed to be abstracted on the score of punishment, no certain limit can with propriety be prescribed—how can, or why should, any such limit be prescribed to the quantity allowed to be abstracted on the score of compersation, or say damages? By whatsoever is abstracted from a man on the score of punishment, in no other shape can good be produced, than that of the contribution made to the prevention of subsequent similar offences;—to the would made by the past offence no healing balsam is applied:—whereas by every particle of the matter of good, not merely abstracted from the author of the wrong, but transferred to the sufferer by that same wrong, the would is in proportion closed, and contribution so far made to a perfect cure.

vii. As per article 1, indispensable necessity requires, that for execution and effect to be given to them, the decrees and other mandates of the Dispatch Court Judge should not be in any way or degree dependent on the free-will of any other Judicatory.

viii. Because, though nothing hinders that, under the procedure of the Judge, a Jury might be put to officiate in this Dispatch Court,—yet, of the complication of the machinery necessary to the introduction of that system, and the uncertainty resulting from the want of all determinate rules for its guidance, a quantity of delay and expense, incompatible with the application of the summary course of procedure to the field here in question, would be the unpreventible result.†

Enactive.—Ratiocinative.—Expositive.

Art. 62. Lest any evidence, which it has happened to the suit to afford, should remain unemployed, and for want of it, deception and misdecision be produced,—created, and conferred on the Judge of the Dispatch Court, to be applied to the purpose of this Act, are the ulterior powers following:—

i. Power to elicit evidence* from all sources without exception:—sources, whether personal, real, or written; quasi-written included: personal, derived from persons: real, derived from the appearances of things: written, derived from persons, and communicated through the medium of things, that is to say, paper, written on, or any other matter so dealt with, as to constitute a visible or tangible and permanent instrument of discourse: personal evidence, whether that of an evidence-holder at large, or say, an extraneous evidence-holder, or that of an evidence-holding party, on either side of the suit, who respectively are by this same means rendered evidence-yielders.

Art. 63.—ii. So; to elicit evidence in all shapes: that is to say, whether responsive, or spontaneous:—responsive, that is to say, in answer to questions, or say interrogatories;—spontaneous, that is to say, uttered by a person to whom, on the occasion in question, no interrogatories have as yet been addressed:—responsive, whether by oral, or say word-of-mouth answers, to questions orally uttered, or epistolarily uttered, in a written or quasi-written shape: the evidence elicited in the orally-uttered shape being, by means of counter-interrogation and otherwise, more effectually secured against the danger of being contributory to deception: in the epistolarily-uttered shape, admissible for the purpose of obviating expense, or delay, or both, when likely to have place, in such quantity, as by the evil thereof to outweigh the evil likely to be produced by the probability of misdecision; that is to say, for want of the security afforded against it by the oral mode of elicitation, subject to counter-interrogation, as above.

Art. 64.—iii. So, on every occasion, to permit questions to be put, not only by parties on both sides, and their several professional assistants, but also by any other person at large, by whose interrogation a promise appears to be afforded, of its being productive of instructive answers.

Art. 65.—iv. So, of his own motion, or say spontaneously, to put questions to a person under examination, or say an Examinee, so it be vivâ voce, and in open judicatory; without waiting for spontaneous narration on the part of the Examinee, or for questions put to him from any other source, as above.*

Ratiocinative.

Art. 65*. Why admit of the Judge’s instituting—of his own motion, without application from any other quarter, an examination, and thereby a suit?

Answer.—Reasons:—

i. Of information from any other quarter, the only use is, in relation to the facts in question, to plant knowledge in the mind of the Judge.

ii. This being the case,—if by means of his own observation such knowledge be possessed by him, so much the better.

iii. Obviated, by the means here in question, is the danger of the evidences not being possessed by him at all; namely, by reason of its not being presented to him from without.

iv. So, likewise, all such delay and expense, as might have been produced by the presentation of it at a later period.

v. To such knowledge, by what means soever obtained by the Judge, the same publicity will, of course, be given, as will be to any extraneous evidence.

vi. On this plan, in case of delinquency in any shape, the certainty,† of the application of the punitive, and of the other remedies, in so far as respectively applicable, will be at its maximum.

Enactive.—Instructional.

Art. 66. For the obtainment of evidence, which how material soever, might not otherwise have been obtainable, although in a superior degree presenting a probability of being impartial, and thence trust-worthy,—created hereby, and conferred on the Dispatch Court Judge, is the additional power following. By means of the evidence elicited at the outset, the Judge will in many cases see reason to believe, that from such or such an individual, considered in the character of an evidence-holder, evidence material to the suit may, in all probability, be elicited. In such case, whatsoever advance, if any, of money, is regarded by him as requisite to be made to such evidence-holder, power is hereby given to him to cause it to be made: made, by all parties, in so far as they actually take part in the suit; and this, without regard to the question, in whose favour such evidence is most likely to operate.

Art. 67. In what proportion such advance shall be made by the several parties,* the Judge will determine, consideration had of their respective pecuniary circumstances.

Art. 68. For the purpose of securing compliance with this requisition, he may announce to each such party his intention, in the event of non-compliance, to proceed as if the evidence in question, having been elicited, had been in any degree, how high soever, unfavourable to the interest of such non-complying party: and, accordingly, in case of necessity, so may he proceed: and such non-compliance may be considered and spoken of by him as an exemplification of that species of fraud, the result of evil-consciousness, which is practised by suppression of evidence.

Ratiocinative.

Art. 68*. Reasons:—Evils by this same power obviated:—

i. Evil the first: misdecision, through mendacity produced by bribery.

ii. Cut off will thus be a source of undue favour, which, under the existing system, has place on the part of witnesses: namely, under the notion of advance made, for no more than the expense necessitated by the journey, to and fro, with demurrage, and compensation for loss of time,—receipt of money in excess, in addition to what is necessary;—money advanced, for the purpose, and with the effect, of a bribe. By committing to the discretion of the Judge, the determination of the sum, and the imposing—upon all parties—alike, or in proportion to their pecuniary circumstances respectively, the burthen of the advance,—this source of corruption will be cut off.

iii. Evil the second: oppression and depredation, by imposition of needless costs. In the present state of things, a suitor, who, in respect to the subject-matter of contestation, is confident of being deemed to have right on his side,—and, on that score, of obtaining the reimbursement of his costs, at the hands of the party or parties on the other side,—has it in his power to heap oppression on his adversary to an indefinite amount, by needless expenditure on this score: oppression—and moreover depredation for the benefit of persons connected with him:—for example, his solicitors or other lawyers.

iv. The richer a man is, the stronger is the temptation into which he may be led, by the invitation thus given to him by the existing state of things.

v. This is among the resources, which will of course be seen presenting themselves to the hand of the dishonest—the malâ fide suitor, and his authorized professional accomplice.

Enactive.—Exemplificative.

Art. 69. If a question, the ultimate decision of which depends jointly upon the proceedings in an Equity Court, and those in an Ecclestastical* Court, is in pendency in an Equity Court,—cognizance thereof may be taken by, and thence transference made of both suits into, the Dispatch Court.

Examples are as follows:—

i. If, on the ground of insanity, the validity of a marriage is disputed, or about to be disputed, in an Ecclesiastical Court.

ii. If the subject of contestation is the validity of a last will, or the disposal of the property under it.

Enactive.—Ratiocinative.—Exemplificative.

Art. 70. As to the designation of the species of subordinate Courts, not sufficiently comprehensive is the preceding article. Another example is afforded by whatsoever intercourse an Equity Court holds with any Common-Law Court, whether of record or not of record.*

It is therefore hereby provided, that whatsoever authority, in the course of any suit, for the effectuation of the object of the suit, the Equity Court has need to make exercise of, in relation to the proceedings of any Court thereby and in so far rendered subordinate to it, or in relation to any functionary thereto belonging, the same authority is the Dispatch Court authorized to exercise in relation to that same subordinate court.

Enactive.—Ratiocinative.

Art. 71. Dispatch Court Judge’s self-extensive, and provisionally, or say eventual enactive, powers. Lest, for want of adequate power in the Judicatory, the beneficial purpose of this Act should in any respect fail of being fulfilled,—power is hereby given to the Judge, from time to time to make any such provisional arrangements,—subject to disallowance by his Majesty or either House of Parliament, in manner hereinafter mentioned,—as in his judgment shall, for that purpose, have been found requisite and necessary, Name of the instrument, by which any such arrangement is effected, a Judiciary-bred eventual Act, or, Statute supplemental to—this present Act, naming it.

Instructional.

Art. 72. Circumstances, indication of which will be attached to this instrument, the following:—

i.Day, on which, in manner hereinafter mentioned, it is published.

ii. Day, on which it will, if not disallowed, acquire binding force.

iii. Day, on which, as in the case of an Act of Parliament, if different from that same day, it will, as is customary in Acts of Parliament, take its commencement.

iv. Day, on which the obediences, or say, observances, or compliances, thereby called for, will begin to have place.

Model for such eventual statute in other respects, the present Act.

Formula serving for the introduction of an eventual statute of this sort, see in Schedule No. XII.

Enactive.

† Art. 73. After receiving the signature of the Judge, his official and personal name included, the manuscript of each such supplement will, by the Registrar, be delivered to the King’s printer; and as soon as may be, whenever the impression is ready for distribution, a printed copy thereof will, under the same signature and by the same hand, be delivered into the hand or the office of the Speaker of the House of Commons, for the use of the House of Commons; another, in like manner, to the Speaker of the House of Lords, for the use of the House of Lords; and another to the President of his Majesty’s Privy Council, for his Majesty’s use; and, of such several deliveries notice will, on that same day, in like manner, be delivered, for immediate insertion, to the printer of the London Gazette, and to the printers of such other newspapers, if any, as to the Judge shall seem meet.

Ratiocinative.

Art. 73*. Why, at the commencement of the time appointed for disallowance, cause Judge’s supplemental Judiciary-bred eventual Acts to be printed, and notice of the impression given?

Answer.—Reasons:—

i. Such impression will be analogous to the impression given to proposed Acts of Parliament, when, according to the present practice, they are in the state of Bills.

ii. By the two notifications,—namely, to the two Houses of Parliament,—instead of one and no more as at present,—as also to the public at large,—a correspondent security will be given, against all abuse of this same eventually enactive power.

Enactive.—Instructional.

Art. 74. Length of time for disallowance or suspension,—whether performed by his Majesty, the House of Lords, or the House of Commons,—will be [seven] full days, exclusive of the day on which the delivery of the printed copy of the supplement in question has been made.

Art. 75. Days from which the length of time will be computed, these:—

i. During the sitting of Parliament, neither House being in a state of adjournment, the day of delivery, as above.

ii. In the case of the House of Lords,—if the House be under adjournment, the day on which the House meets.

iii. In the case of the House of Commons, if the House be in a state of adjournment, the day on which the House meets.

iv. During the recess, in the case of his Majesty,—if neither absent at more than [one hundred] miles distance from his Majesty’s palace in the metropolis, nor labouring under an indisposition incapacitating him from attention to business,—the day on which such delivery, as above, is made to the President of his Majesty’s Privy Council.

v. If absent at a distance greater than [one hundred] miles,—the day on which his Majesty has returned to his said palace, or arrived elsewhere within that same distance, as certified to the Judge of the Dispatch Court, by the said President.

vi. If labouring under indisposition as aforesaid,—the day on which such indisposition shall have ceased; as, in like manner, certified to the Judge of the Dispatch Court by the said President.

Enactive.

Art. 76. Power to the Judge to add, to any amount, to the above-mentioned length of time, but not to defalcate from it.

Art. 76*. On each individual occasion, respect for the legislative authorities will dispose him to make any such addition as can be made without detriment to the ends of justice.

Enactive.

Art. 77. If, on any occasion, through inadvertence, or under the pressure of some unforeseen exigency, it should happen to him to have made defalcation,—such defalcation may be, on his part, a misdemeanour: but no act which, on the ground of the exercise so given to his provisionally-legislative power, he may have performed in his judicial capacity, will on that account be void.

Art. 78. Of the issuing of such eventual Act, information will be given by the Registrar, by delivery of a printed copy thereof, under the signature of the Judge, to the several constituted authorities, in manner following:—

i. To his Majesty, by delivery to the President of his Majesty’s Privy Council.

ii. To the House of Lords, by delivery to the Speaker thereof.

iii. To the House of Commons, by delivery to the Speaker thereof.

iv. To the Secretary of State for the Home Department, by delivery to the Secretary for the time being, or any Under-Secretary of his.

Instructional.

Art. 79. To the care of the Judge it will belong, to leave open to his Majesty and the two Houses, for the disallowance of this power, as large a quantity of time as the exigency will admit of.

Enactive.

Art. 80. If Parliament be not then sitting, or either House be in a state of adjournment, the giving exercise to this power of disallowance—or say negation power—will, of necessity, belong exclusively to his Majesty, as above.

Enactive.—Instructional.

Art. 81. When the day appointed for the commencement of such eventual enactment is arrived,—if no instrument declaratory of such disallowance has in the mean time been received by the Judge, the Act will take its place among the temporary Acts of that same, or if Parliament be not sitting of the preceding session, and will bear on its title the name of the day on which it begins to be in force.

Art. 82. Of such certificate, as per art. 75, immediate notification will, under the care of the said President, be made to all suitors of the Dispatch Court, and to the public at large, in the London Gazette: to wit, in a Gazette Ordinary or Extraordinary, as the case may require.

Art. 83. To such disallowance or suspension, as per art. 74, expression will be given in manner following:—

i. If effected by his Majesty, by the word “disallowed,” or the words “Suspended untilmeeting of Parliament,” written on the instrument in question, with his Majesty’s signature thereto attached, and the counter-signature of the President of his Majesty’s Privy Council.

ii. If effected, as above, by the President of his Majesty’s Privy Council,—by the single signature of the said President.

iii. If effected by the House of Lords,—by the words “By the House,” and the signature of the Speaker thereof.

iv. If effected by the House of Commons,—by the words “By the House,” and the signature of the Speaker thereof.

Art. 84. For the purposes aforesaid,—power to his Majesty, from time to time, to appoint to officiate as Deputy to the President of his Majesty’s Privy Council, on the occasion of his Majesty’s absence, as above, or indisposition,—any other Member of his Majesty’s said Council.

Art. 85. Each such Judiciary-bred eventual Act, when by expiration of the disallowance time it has received the assent of his Majesty and the two Houses, and thus passed into a law,—will be aggregated to the rest of the Acts of Parliament: but, for distinction’s sake, in the title of it will be inserted, before the word Act, the words Judiciary-bred appropriately confirmed: and, in place of the day of its date, as at present, will be inserted the word submitted, on such a day, mentioning it, and the words confirmed, and passed, by expiration of disallowance time, on such a day, mentioning it.

Enactive.—Ratiocinative.

Art. 86. For the more effectual check to arbitrary power and usurpation of legislative power, by the judicial authority,—to each article of his Judiciary-bred eventual Act, the Judge will subjoin an indication given by him of the mode in which the same is, in his opinion, conducive to one or more (mentioning them) of the several ends of justice:—prefixing, to the name of the evil corresponding to the ends of justice, the words—“Reason, obviating.” This done, the reason-assigning, or say ratiocinative, matter so expressed, will stand thus—“Reason, obviating mis-decision;” or “Reason, obviating non-decision;” or “Reason, obviating needless delay;” or “Reason, obviating needless expense;” or “Reason, obviating needless vexation;”—prefixing to each such reason, if more than one, a numerical figure, indicative of the order in which it stands.

Art. 87. In case of disallowance,—to these reasons of the Judge, will be applied, by the respective superior authorities, counter-reasons, in one or more of the forms following, namely:—

i. Disallowed, as being detrimental to one or more of the ends of Justice (naming it or them.)

ii. Disallowed, as being detrimental to his Majesty’s prerogative.

iii. Disallowed, as being detrimental to the privileges of the House of Lords.

iv. Disallowed, as being detrimental to the privileges of the House of Commons.

Art. 88. From the President of his Majesty’s Privy Council, will every reason assigned in his Majesty’s name be understood to emanate: in respect of it, it is he that will be understood to be responsible.

Art. 88*. Why state the reason, assigned by the President of the Council, as his reason, and not that of the Sovereign?

Answer.—Reason:—To avoid compromising the Royal dignity, by controversy: especially in the case of a female sovereign, or in the case of a Regency.

Art. 89. If, on any occasion, it should be the pleasure of the House of Lords not to assign any reason for its disallowance,—the Speaker thereof will add to the word disallowed, the words without reason assigned: and so in the case of the House of Commons.

Art. 90. Instead of disallowance or suspension, should it be the pleasure of either House to take for a subject-matter of amendment, any such Judiciary-bred eventual Act,—as if it were a Bill,—so of course it will be.

Enactive.—Expository.

Art. 91. Included in this power is—that of making regulations for the conduct of the business of this Judicatory: as in the case of those regulations, of generally-applying and permanent effect, which, in the language of the Westminster-Hall Courts, are styled Orders, or Rules and Orders.

Ratiocinative.

Art. 91*. This self-extensive power,—why give to the Judge a power thus unprecedented? Answer.—Reason:—Beneficial effects, the following:—

i. Making, without the delay of an Act of Parliament and the correspondent consumption of the time of Parliament, provision for unforeseen defects and exigencies.

ii. Committing to the functionary who, by his appropriate aptitude, derived from such experience and correspondent attention as cannot have had place in the instance of any other person, is best qualified, the duty of making on each occasion the provision requisite.

iii. Giving an example of an arrangement, having for one of its objects, or say ends in view, the maintenance of the constitutional subordination of the judicial authority to that of the legislature.

iv. In outside show, by this arrangement, addition is made to the power of the Judge; in design it is, and in effect it will be seen to be—the applying a limitation to it: and that a highly needful one.*

Enactive.

Art. 92. To the validity of any article in any such Judiciary-bred provisional Act, its repugnancy, how decided soever, to any preceding Act of Parliament, will not constitute any objection.

Ratiocinative.

Art. 92*.—Reasons:—

i. Scarcely proposed could be any enactment, in relation to which might not be found, in this or that statute, some general clause, to which such proposed enactment might not, and not altogether without truth, be stated as repugnant.

ii. Witness, for example, the clause in Magna Charta: “We will not deal with any man” (so and so) “but by the judgment of his equals, or by the law of the land.” Here then, it might be said, is a law of the land, to which the proposed enactment in question would be repugnant.

iii. An enactment having its origin in this source would not, in any instance, have received the force of law, without having received the assent of all three branches of the legislative body as truly as any Act of Parliament that ever was made.

iv. Of Judge-made law every proposition to which the force of law is given, is repugnant, at any rate, to this clause of Magna Charta, and commonly to this or that clause in some other statute.

v. No ground can be stated, for any apprehension, of a plan, formed by the Judge of this proposed Court, for giving to his power any extension detrimental to the ends of justice.

vi. Purged as he is of sinister interest by the disallowance of all fees, no motive for any such undue extension could he have.

vii. Supposing him actuated by any such sinister motive, no ground could he have for any such hope, as that of seeing any such plan carried into effect. Not proposable by him could be any enactment, which would not run counter, or be thought to run counter, to the particular interest of Judges, and of all persons linked to them by a community of sinister interests,—and thereby excite, and bring out into action, their opposition to it in both Houses, if for such opposition any colour could be found.

Enactive.

Art. 93. Null and void will be any operation, by which,—immediately, or in whatsoever degree remotely,—obstruction is offered to the operation of the Dispatch Court: for example, by Certiorari, Writ of Error, Mandamus to or from a Common-Law Court; Injunction by, or Appeal from, an Equity Court. By any such proceeding should any such obstruction be attempted, the Dispatch Court Judge will proceed as if no such proceeding had issued.

Art. 94. In pursuance of an Incarceration Mandate from the Dispatch Court Judge, a person (suppose) has been incarcerated,—and, by some existing judicatory, a writ of Habeas Corpus—or say a Body-adduction*mandate—has been served upon, or say delivered to, the keeper of the prison, in which the incarceration has place. In this case,—if, for the issuing of such body-adduction mandate, the judicatory in question has lawful authority,—obedience thereto will in course be paid. But, with the body, the keeper will transmit the incarceration mandate; and upon sight thereof, the judicatory in question is hereby required to remand the prisoner, in the custody in which he came, to the prison from which he came.

Art. 95. By the Judge or Judges by whom such body-adduction mandate had been issued, or by any other Judge or Judges, should the prisoner, instead of being remanded, have been disincarcerated, or sent into or to any other place of confinement,—power to the Dispatch Court, by a fresh incarceration mandate, to cause the re-incarceration of the said prisoner: and so, toties quoties.

Art. 96. Power also to the Dispatch Court Judge to inflict on the person or persons concerned in such disincarceration—one, or more, or all of them—at option and at discretion, such punishments as in and by art. 51 are appointed: stating, on the occasion in question, whether the delinquency had for its cause evil-consciousness or want of due attention (art. 37.)

Ratiocinative.

Art. 96*. Why thus give to the judicatory power to cause the adduction of the prisoner, divested at the same time of the correspondent power of disincarceration?

Answer.—Reasons:—

i. To obviate all power of abuse in the hands of the Dispatch Court Judge.

ii. To obviate on the part of the public at large all suspicion of such abuse.

Enactive.

Art. 97. For any expense and vexation, produced by the application made for such body-adduction mandate, power to the Dispatch Court Judge, by his compensation-a-warding mandate, to administer, at the charge of any or all the individuals who have been contributing to the production of such expense and vexation, compensation to the respective use of those who have been sufferers by it.

Ratiocinative.

Art. 97*. Why thus give power to the Dispatch Court Judge, not only for frustrating all endeavours, on the part of the existing authorities, to frustrate the incarceration performed by him, but moreover to impose on them the burthen of compensation and even of punishment?

Answer.—Reasons:—

i. To omit anything that was necessary to the impossibilizing the efficiency of all chances for such frustration, would be—to establish eventual appeal from the Dispatch Court to some such already existing Courts, one or more of them.

ii. Suppose no such powers provided, a course which would naturally be taken by any adversary of the proposed relief, would be the harassing with the expense and vexation inseparable from the existing system any or all of the persons, on the several occasions, concerned in the administration of this same relief.

iii. For this purpose, any one of all the several authorities who at present are authorized to issue a writ of Habeas Corpus would suffice.

iv. To secure against frustration the hereintended design, the mere frustration of the endeavour to prevent the disincarceration would not suffice. Were it not for the proposed punishment, the mere expense, necessary to the infliction of the expense and vexation on the persons concerned in the administering the relief, would naturally find but too many, who would be effectually disposed to take it upon themselves.

v. Under the checks hereinafter provided, much less probable will be seen to be any abuse of the Dispatch Court Judge’s power of incarceration, with the subsidiary powers, here provided, than would be the power of disincarceration, with the subsidiary powers of inflicting vexation, if left in the hands of the existing constituted authorities.

vi. Of such virtual appeal, the effect would be—instead of substituting the summary to the dilatory system, to add the one to the other: and thus render the course of procedure still more dilatory than the proposed relief found it.

vii. As to the nature of the addition,—this would depend upon the course of procedure pursued in the at present existing judicatory, by which, by the supposition, cognizance would, in this indirect way, have been taken of the proceedings of the Dispatch Court.

viii. In the state of things here proposed, no exercise or assumption of this power can have place, without appropriate warning: without drawing to it the attention, not only of the public at large, but of the superordinate authorities—legislative and executive.

ix. Exercised, as above, by the existing Judges,—exercised, on each occasion, is this same power, altogether without warning of the intention to exercise it. Nor, unless by a sort of miracle, has anybody out of doors any knowledge of what is to be done.

x. By malâ fide suitors—by dishonest suitors on both sides, at the suggestion of their learned advisers, it would, of course, and to a certainty, be employed:—by learned Judges, it would—but too naturally and probably—be countenanced and effectuated.

xi. By the here-proposed principle, how formidable soever may be the appearance presented by it to a superficial glance, no change whatever in the constitution will be produced—no power added to, or subtracted from, the Crown, or either House—no power given to the people at large.

xii. Necessary* to the keeping the door shut against all frustration, will, upon due examination be seen to be all this machinery:* but, what is most probable is—that, under the controul established by it, matters will go on so quietly, as to cause it to present itself to a hasty view as needless and superfluous.

Enactive.

Art. 98. Of all proceedings, in relation to this matter, before the body-adduction-mandate-issuing judicatory, the Dispatch Court Judge will so order matters that minutation and recordation shall be made, and the record kept in the office of the Registrar of the Dispatch Court.

Enactive.—Expository.

Art. 99. Included in this same self-extensive power of the Judge, is the power of making, from time to time, general regulations for the direction of the proceedings of this his own judicatory.

Ratiocinative.

Art. 99*. Of this arrangement, under the form of an extension applied to the power of the Judge, the effect is in truth a restriction: for, in respect of the exercise of it, a sort of moral obligation may be seen to have place. Supposing no such power, he would, on each occasion, do, without pre-announcement, whatsoever it were his pleasure to do.

ii. On the other hand, let this power be established, he will, in this case, in proportion to the exercise given to it, give to all persons concerned information of what they have to expect, and thus in a proportionate degree prevent disappointment.

iii. At the same time, by so doing, he will submit such his arrangements to the tribunal of public opinion; and thereby, to any imperfections that may have place in them, elicit the appropriate amendments, antecedently to any suffering on the part of individuals in consequence of those same imperfections.

Enactive.—Ratiocinative.

Art. 100. Strong, as above, being the mass of power conferred on the Dispatch Court Judge, correspondently strong will need to be the checks provided for security against mis-exercise of that same power. Hence the enactments which now follow.

For corruption, oppression, or extortion, the Judge may be punished as for a misdemeanour.

Mode of procedure, Information: filed ex officio by his Majesty’s Attorney-General, and not otherwise.*

Enactive.

Art. 101. At the trial, questions may be put to the defendant, as to any extraneous witness: in case of wilful falsehood, his punishment may be the same as that of a witness would be in case of perjury; from silent or irrelevant response, the Judge will draw inferences, as from any other portion of circumstantial evidence: all objection, on the ground of his being called upon (as the phrase is) to accuse himself, notwithstanding.

Ratiocinative.

Art 101*. Why thus elicit evidence from the lips of the defendant?

Answer.—Reasons:—

i. As to the Rule of Common Law, by which exclusion is put upon evidence from this source, for a demonstration at large of its absurdity in all cases, see the Rationale of Evidence.

ii. So, of its inconsistency: the exclusion having place where the evil and danger from the admission of the evidence in question amounts absolutely to nothing, and not having place where the evil is at its maximum.

iii. So, in respect of the exclusions, which have place, where the evidence is elicited in its best shape—namely, that of response to interrogation vivâ voce, subject to counter-interrogation on the spot,—and having not place where it is elicited in the worst possible shape—namely, that of affidavit evidence,—with time, in indefinite abundance, for premeditation, and exemption from the security which subjection to counter-interrogation affords, against falsehood, and against deception by means of it.

iv. Even were the exclusion proper in all other cases, it would not be so in this: forasmuch as—in this case, a man could not be subjected to the interrogation, without his own previous consent, as signified by the acceptance given by him to the office by which he will have been subjected to it.† —See further, Section XIX. Subsequential Evidence, &c.

[* ]Power-holder.] Analogous compound appellatives, householder, freeholder, &c. To the application made of this mode of designation, further extension will hereafter be given; to wit, in and by the words exemption-holder, evidence-holder, right-holder, &c.

[† ]Checks, or say securities against abusive advantages capable of being made of those same powers and exemptions.

[* ]Precedent. Of power not less extensive, a precedent may be seen in that given to the Commissioners for Inquiry into the subject of Real Property. And note, that in that case it was not, as here, by the King in Parliament that the powers were given, but by the King alone, with the counter-signature of the Keeper of the Privy Seal. Date of the commission, June 6: year of the King, the ninth: year of our Lord (not added), 1828.

“And for the better discovery of the truth in the premises,” says the instrument, “We do by these presents give and grant to you, or any three more of you, full power and authority to call before you, or any three or more of you, such and so many of the officers, clerks, and ministers of our Courts of Law and Equity, and other persons, as you shall judge necessary, by whom you may be the better informed of the truth in the premises, and to inquire of the premises and every part thereof, by all other lawful ways and means whatsoever.

“We do also give and grant to you, or any three or more of you, full power and authority to cause all and singular the officers, clerks, and ministers of our said Courts of Law or Equity, to bring and produce upon oath before you, or any three or more of you, all and singular rolls, records, orders, books, papers, and other writings belonging to our said Courts, or to any of the offices within the same, as such officers, &c.”

If, when conferred by the Crown alone, the conference of this power is legal, constitutional, and unexceptionable,—how much more clearly unexceptionable where the whole power of Parliament is, as here, applied to it? True it is, that the operations, to which in that case it extends, are no others than those designated by the words “bring and produce,” not extending to definitive transference; but, for the purpose here in question, such transference is necessary.

Turn now to the existing system. Look to it under the so-perfectly-distinguishable, though so-intimately-associated heads of factitious delay and expense; not forgetting complication, thence obscurity, uncertainty, and misdecision.

Living instruments, by means of whom, and consequently upon whom, Equity Courts operate, three: a Sheriff, a Serjeant-at-arms, and a Sequestrator: a Sheriff, for operating indiscriminately upon persons and things; a Serjeant-at-arms, for operating commonly upon persons only; a Sequestrator, for operating upon things exclusively. These, for Equity Court proceedings, by a bill and answer, exclusive of proceedings under a Bankruptcy Commission: as to which, see the next section—Sect. VII. Prehensors.

1. First, as to the Sheriff. This functionary is the common Jack-of-all-sides (juvenile cricket-players will understand this), to four different masters at once; namely, the three Westminster Hall Common-Law Courts, in all ordinary cases, and the Equity Judge, now and then, in an extraordinary case. By the Sheriff, understand, on this occasion, the Sheriff of Middlesex: the sheriff of that county alone, of all the fifty, having been regarded as having his residence near enough to the Equity Justice-chamber, to be capable of being operated upon by the Equity Judge, without preponderant inconvenience; accordingly, over this Edom alone has the David of Equity ventured to cast forth his shoe.

Not much less near at hand, it is true, than Middlesex, are three other counties; Surrey, to wit, Kent, and Essex;—a discovery, of which, for other purposes, and in particular for purposes styled police purposes, use has of late years been made. But, by causes which it would take too much room to explain, no other living instrument of this kind was found so well fitted as this Middlesex one to a Lord High Chancellor’s hand.

Note now how well fitted,—“No man can serve two masters,” says Scripture as well as Reason: meaning, by serve, serve well. But, hundreds of years ago, four sorts of judicial masters there were, besides this one, who, if they had not had each of them a fraction of this functionary to serve them for a servant, would have had none.

There are—the King’s Bench, Common Pleas, and Exchequer National Judicatories, having all of them the Sheriffs of all counties at their command; with the Justices of Peace in general sessions throughout the nation; County Judicatories, these—each having no other sheriff than the sheriff of its own county at its command.

In those days, the process of the King’s Judges being not unfrequently withstood by the Barons and Knights his feudatories,—the operations of civil government could no otherwise be carried on than by a sort of guerilla warfare. Commander of the army in each shire, the Earl—Saxonicé Alderman, Latiné Comes, meaning companion of the King, whence Normanicé Comte, Hispanicé Conde, &c.: Lieutenant-General, Anglo-Latine Vice-Comes, Saxonicé Scire-Gereve, (Deputy Commander of the Tertorial Division, thus denominated:) whence, by contraction, Sheriff.

And so, because, so long ago, this miserable makeshift was regarded as necessary,—it must now-a-days, to the exclusion of every appropriate instrument,—now, when it has so long ceased to be necessary,—be continued.

For centuries upon centuries, this Vice-Comes has been a deputy without a principal: the principal (who, when he had existence, was called the Comes, alias the Earl of the County, or say Shire), an imaginary being, without a real “habitation”—without anything but a “name.” For a specimen, but no more than a specimen, of the suffering—of the practical and too real suffering springing out of this theoretical and ideal confusion, see “Petition for Justice, § 14. Results of the Fissure—Groundless Arrests for Debt.” (Vol. V. p. 491.)

2. Secondly, as to the Serjeant-at-Arms. This functionary is a satellite, appointed on each occasion by the Equity Judge himself. How he came by this his formidable title, requires explanation. Once upon a time, some person or other having omitted to do something which by the Judge he had been bid to do,—his Lordship dreamt that a rebellion had been raised, which being admitted, an army became necessary for the suppression of it. Thence came the Chancery writ, styled a “Commission of Rebellion:” by which was meant—not, as in the case of a “Commission of Inquiry,” a commission to make the thing, for the making of which the commission was issued—not a commission to make a rebellion, but a commission to quell one. Commander of the army, or commander and army, all in one, this same Serjeant-at-Arms.

3. Lastly, as to the Sequestrator.a While, during a course of years, for the sake of the profit upon the expense, the Chancellor, with his myrmidons, was making believe to do that which, if so minded, he could have done, with next to no expense and vexation to anybody, in the course of some number of days or hours,—a sort of operation called sequestration required to be performed: and this, like other operations, required operators. Sequestration, the operation: sequestrators, the operators:—in these may be seen the “manipulus furum,” of whom the Serjeant-at-Arms was, in case of necessity, the Thraso.

For the purpose of giving execution and effect to a portion of substantive law,—and, to that end, for the purpose of giving execution and effect to the correspondent judicial mandate issued on the occasion of a demand made on the Judge for his appropriate service,—on that same occasion and to that same purpose, what is requisite is, that, into the hands of the Judge be taken either the subject-matter itself of the demand—namely, the mass of property or other benefit, of what nature soever it be, which is the object of declared desire; or else a person, who for shortness is called a defendant: meaning thereby a person, who, on the occasion in question, for the purpose in question, is assumed to be in possession of this same object, and prepared to defend himself, in that arena, against all endeavours to take the object from him: though the truth is—that, so costly in this field has the war been made, that out of a thousand, not one is there who, how justly soever entitled to the possession, would, if called upon, be able so much as to begin to defend himself in that same field, with any possibility of effectual defence:—say then the defendant, or proposed defendant, himself. But, this same person, or any person—to what end? to what purpose? Except where, the case being a penal one, the punishment appointed is such as requires the body of the individual to be forthcoming for the purpose of being subjected to it, no use is there for the body, but for the purposes of coming at, by that means, the valuable thing itself, which is the object of the desire.

To this end, the Dispatch Court Judge, if, meaning honestly, he has the power, will act according to the circumstances of the individual case. The demandant he has seen and examined, of course, at the very outset of the suit: this being the very operation from which the suit has received its outset. From this examination he will have framed his judgment as to what cource to take, for the purpose of securing, with the minimum of delay, vexation, and expense, to all parties, the eventual rendering of the service demanded; that is to say,—if, in his view, a preponderant probability has place, that the proposed defendant, unless prevented, will convey, out of the reach of the Judge, not only the subject-matter of the service demanded, but his body likewise, by means of which, in case of need, the compliance with the demand might be compelled, he will for this purpose cause hold to be taken—prehension to be made—of things moveable, things immoveable, and body—one, two, or all three, as occasion may require: mindful throughout, on no occasion to produce so much as one atom of evil, more than is necessary for the production of the preponderant good endeavoured to be produced.

[* ]Taking.] 1. By what hands, then, shall they be delivered into it?

2. To the situation of a judicial functionary of the grade of a Judge, a manual operation such as this is not congenial.

3. To the eyes of the Judge thus ousted of jurisdiction, the witnessing of it would be needlessly painful.

4. Not but that, for the wound thus producible, a precedent, or something very near to one, were it needful, might be found.

5. But no such wound is needful.

6. On the part of the subordinates, on whom the duty is here imposed of submitting to the operation, no such vulnerable dignity has place.

7. On this occasion, as on every other, whatever is done, the less the expense, in every shape, at which it is done, the better.

8. As to superordinates, they will know better than in any open and direct way to attempt to throw obstacles in the way of obedience on the part of their subordinates.

9. Here, then, may be seen—benefit maximized, burthen minimized. Turn now to the existing system: there may be seen burthen maximized, benefit minimized.

10. To exhibit, were it even no more than a rough outline, of the several diversifications of the course taken—taken by the existing system in general, and by the Equity branch of it in particular, for the attainment of these two conjunct sinister ends,—would require, for a basis, a sketch of the whole body of judicial procedure; including, in the Equity part of it, the two vast morbid excrescences—the Bankruptcy Courts and Insolvency Courts.

11. This being here impracticable, suffice it to say that it is by the observation of the opposite practice, as carried on under the existing system, and of the enormousness of the mass of evil produced by it, that the several preferences here recommended were suggested.

12. At the head of the mass stands the portion of it produced by the practice by which for the price set by Judges, to every man who can and will pay that price, the liberty of any and every other man is sold;—sold, together with the additional powers of involving in utter ruin men in countless numbers by a known and infallible process,—supposing him so lost to all sense of humanity and shame as to accept of the invitation—still, as well as for ages past, held out to him by English Judges. Such is the practice by which, on the ground of the false assertion of a debt due, to the amount of which there are absolutely no limits, the prehension of the person of a man, and in consequence the destruction of his commercial credit, may be effected: the act of inflicting the suffering not being preceded by any inquiry into the need of it; the need of it—that is to say, for any one of the three above-mentioned purposes of justice. In the practice of no other country, in so flagitious a form (one may venture to say), have depredation and corruption on the part of judges been seen to manifest themselves. For a brief, but to this purpose sufficient history, of the course by which this part of the system has been brought to its present state of perfection, see Petitions for Justice, Device XIV. Groundless Arrest for Debt.*

13. Root of this, as of every other abomination of judge-made and fee-gathering law, the original sin inoculated by it—exclusion of the parties from the presence of the Judge. Necessary not less to the minimization of the burthen to the defendant, than to the maximization of the benefit to the plaintiff, is information obtained by the Judge, as to the circumstances of the parties on both sides, and in particular on the defendant’s, at the very outset of the suit: for, on the state of the pecuniary circumstances of the defendant will depend the means which, for making provision for the execution-securing as well as for the execution-effecting purpose they afford: and, at that stage of the suit, no otherwise than by the word-of-mouth examination of the plaintiff can that same information be obtained:—of the plaintiff himself, or of any such representative of his, whom, according to his condition in life, the necessity of the case has on that occasion substituted or added to him.a

14. Of the thus all-comprehensive and hitherto unexampled extent here proposed to be given to the power of prehension, one natural enough consequence is—that, to a first glance, not only augmentation of the Judge’s power should present itself as a principal object of it, but, moreover, in a degree more or less considerable, detriment to the interest of the defendant, as the effect. On a closer inspection, however, it will be seen, that, by the variety of choice thus afforded, effectual service is rendered to the defendant’s, no less than to the plaintiff’s side:—whereas, under the existing system, burthensome to an outrageous amount as is the prehension actually performed, still more outrageously burthensome is the power, as above given, of performing it:—at any rate, by the option of substituting to a more a less burthensome mode of operation, no mischievous addition to power is effected: and, with not less solicitude has been looked out for—the mode of operation which will be least burthensome to the defendant’s, than that which will be most beneficial to the plaintiff’s, side.

15. As to security,—for the several modes in which, for the several above-mentioned purposes, it may be given, and the occasions on which it may require to be given, see Section XVII. Prehensor.

16. Minute indeed is the proportion, which the imagination of a non-law-learned reader could present him with, of the immense mass of expense and delay produced by the Equity practice in relation to this subject, with the correspondent probability of misdecision and unjust non-decision: in a word—of the imaginary rule of action thus feigned, the efficiency to all mischievous, mounted on inefficiency to all good purposes. Under the head of Sequestration, six pages in Madox’s Chancery, II. 20, 4to, 210, will suffice to exhibit to him a miniature picture of one part of this mountain of predatory abuse.

17. Suggestions have, of late days, been brought forward, having for their subject-matter imprisonment for debt, considered in the abstract; and for their object—on the face of them, if not at bottom—the abolition of imprisonment, to the whole of the length to which it can, on that same occasion, be employed. Supposing this to be the proposition, with as much reason might be proposed abolition of punishment on every occasion—of punishment in every other form, on the occasion of transgression in every other form. Without the discernment to see that exceptions are necessary, or without patience to attend to them—thus does sentimentality, regardless of the dictates of the greatest-happiness principle, apply itself but too often to the establishment of general and sweeping rules.

[* ]Since that work was printed off, the law on the subject has been materially altered by 1 & 2 Vict. c. 110.—Ed.

[* ]Exchequer.] Incidentally apply these same powers to the several Superior and other Common Law Courts: see above, art. 3. Also to the Ecclesiastical Courts: see below, art. 69 and 70.

[* ]Possible.] Say, in four words, Prehendenda are all prehensibilia.

[† ]Persons.] Note, on this occasion, that where slavery has place,—slaves, though persons, being considered and dealt with on the footing of things, they may become eligible subject-matters of prehension, as well as the land, on which they are, have been wont to be, and are about to be, employed.

[‡ ]Burthen to the defendant.] Example:—Among things incorporeal, or say rights, right of entering into an obligatory engagement of any kind; right to Judge’s service for remedy to wrong in any shape; rights, these, the prehension and consequent suspension or final loss of which is among the consequences of outlawry and excommunication, to which, antecedently to his appearance, and for the mere purpose of compellinghim to make such appearance, a defendant is subjected under the existing system:—subjected, at the outset of the suit, before any declaration is made, true or false, of the ground of the demand thus vexatiously made by the plaintiff; subjected to prehension thus relatively useless, things incorporeal and fictitious, in preference to, and to the exclusion of, all things relatively useful: that is to say, things really existing, moveable and immoveable.

[* ]Prehension.] Turn now to the existing system. Consequences, under the several above-mentioned heads, these:—

1. Purpose, execution-securing. Prehended instead of any subject-matter of property, applicable ultimately to the purpose of the suit, nothing but the body of the defendent: whereupon to prison he is consigned, unless security ab extrâ be found by or for him; security, and for what?—for compliance with the demand? No: but for his being ultimately consigned to prison,—a place which no more produces money than it does corn or potatoes. Consequence of the operation, the defendant’s pecuniary substance, in large proportion, is divided, not among creditors, but one part of it among lawyers; another part consumed in waste. Nor is the thus miserable and misery-producing security obtainable at the hands of an Equity Judge; only at the hands of a set of Common-Law Judges.

2. Preference the first: Things preferred to persons. Instead of this, Common Law prehends persons, and will not prehend any thing—employing this burthen without benefit, and the most instead of the least afflictive course. Equity enhances upon the system of oppression and depredation. Common Law prehends indeed the body, but does so in the first instance, and for comparatively trifling expense: Equity, not till after the party wronged has been loaded with vast and unbounded expense in possession, with still more vast in expectancy—the product of correspondently enormous delay: not prehending for the eventual use of the parties wronged any one thing it prehends—not so much as the body of the author of the alleged wrong, without defaming, oppressing, and plundering him, by force of a calumnious lie, by which a man, whose only crime or offence is poverty, is proclaimed guilty of rebellion—a capitally-punished crime.

3. Things moveable. For securing eventual execution, and thence at the earhest stage, or any stage antecedently to the latest, Common Law, or Equity, do not either of them prehend one. Common Law does in some cases, at the latest stage; Equity not even then.

4. Of the aggregate mass of immoveables, Common Law does not at the first stage prehend any part: at the last stage for execution-effecting, of any such part as under the name of leasehold is held for a number of years certain, it does indeed prehend the whole: of such part as is termed freehold, being held for a number of years uncertain, as being determinable by the cessation of a life, or the longest of a number of lives, commonly three, it prehends the half, and no more than the half; namely, by means of a writ called an Elegit: this by a process of division by which, whether anything valuable is or is notgiven to the plaintiff to whom it is due, no small quantity of his property, and the defendants’—of the property of the party wronged, as well as of that of the author of the wrong, is divided among Judge & Co.

5. Turn back now and seewhat, on this same occasion, will be the course taken by the Dispatch Court Judge.

Applying, all along, his careful attention to the above rules, he will look into the individual circumstances of the individual case, and those of the individual parties; and whatsoever they render it possible for him to do, this he will do, with reference to every one of the above-mentioned purposes.

Whatsoever, for any one of those same purposes, he can take with his own hands, he will take with those same hands: whatsoever he can take, but no otherwise than by other hands, he will take by other hands. By other hands: but by what? By unwilling ones? No surely: but by willing ones, so long as any such, who are also in other respects apt, are to be found. To Common-Law Judges or Equity Judges, as the case may be, he will leave it to try, or pretend to try, what can be done for the purpose in question by a set of hands, the main occupation of which, where it is not the sole one, is the taking of the money of both parties into their own hands, and putting the same into their own pockets.

[* ]Counter-security.]For the different shapes, or say modes, or forms, capable of being given to such security and counter-security, see Petition for Justice, prayer part, art. 35, 36, 37, (Vol. V. p. 501.)

No such counter-security does the existing system, in any of its branches, provide. Anciently, in the Common-Law branch, yes: but under the fee-gathering system, forasmuch as to all suits by those who were unable or unwilling to afford such counter-security a bar was thus put,—the bar was, of course, sooner or later, removed.

[* ]Efficiency.] Of this remedy, compare the effectiveness with that of a Bill in Equity; by which, at the hands of an unwilling defendant, at the end of five years, nothing more will have been effected than the elicitation of the evidence of that one individual, out of an indefinite number of individuals, of the evidence of all whom the elicitation may, for the purpose of the suit, be necessary!

In the aggregate of the matter of the xx. paragraphs of the instructional article 27, together with that of the articles 28, 29, and 30, may have been seen one part of the endeavours applied, in the here proposed system, to the alleviation and minimization of the mass of human suffering, liable to be produced, and in so large part unavoidably, by the hands, conjunctly or separately operating, of the Legislator and the Judge. By the opposite practice, as exhibited by the existing system, have these measures of relief, in almost every instance, been suggested. An end, which never has been aimed at,—nor, so long as the fee-gathering system continues in operation, ever can be aimed at,—how should it in any instance have been accomplished?

[* ]Evil-consciousness,] that is to say, the being apprised of the evil produced by the offence. Under Rome-bred law, throughout the whole field of delinquency, runs this distinction between evil-consciousness and insufficiency of attention; or say, in this case, inattention, heedlessness, or (from the Latin word temeritas, as employed in the locution temerè litigantes), temerity, or, in some cases, rashness: in the language of that law, unappositely is this distinction expressed by the words dolus and culpa; dolus (a word meaning deceit) being employed where no deceit is aimed at. Evil-consciousness, commonly called, in English-bred as well as Rome-bred law, by the uncharacteristic and obscure Latin appellation of mala fides; in Rome-bred law, also, dolus. Heedlessness, in English-bred law not named, and by English judges and other lawyers (such is their heedlessness) scarcely heeded; being confounded sometimes with evil-consciousness, sometimes with blamelessness. Of the distinction, prime in intensity, as well as extent, is the importance: blind to it have been at all times the founders of the fiction calling itself English Common Law: a defect, sufficient of itself to stamp upon the whole system the character of worthlessness, comparative at least, not to say absolute.

[* ]Coercion,] Parts of the mind, to one or other of which, whether for good or evil, human agency applies itself—the intellectual and the sensitive: to the intellectual applies itself every instrument by which deception is produced by means of fraud; to the sensitive applies itself every instrument which works by means of anti-legal physical force, anti-legal intimidation, anti-legal allurement: in the case of coercion, it is by force, or intimidation, that the effect is produced.

Note here the difference between anti-legal (or, as the word more commonly used is illegal) and anti-constitutional. Anti-legal means prohibited by the penal branch of the rule of action; anti-constitutional means unconformable to the constitutional branch of the rule of action. Corruption—in both its forms, the intimidative and the alluring—corruption, when power or opulence is the instrument of it, is, to a vast extent, not anti-legal:—as to anti-constitutionality, it is not contrary to what constitutional law is, however contrary to what constitutional law ought to be, and is falsely said to be. Suppose a tenant turned out of his farm or shop, and thereby consigned to ruin by his landlord, for giving a vote in a manner disagreeable to that same landlord: by such ejectment, corruption—namely, the intimidative species of it, is practised. In this, however, there is nothing illegal; nothing repugnant to that which the constitution is: how repugnant soever to that which the constitution ought to be.

[* ]Turn now to the existing system. There, on an occasion such as those above described, for the description of the offence, the locution commonly employed is—Contempt of the Court. This locution, as being loose and vague,—liable to be abused, and accordingly most abundantly and mischievously abused,—is on the present occasion, in the text of the Bill, purposely forborne to be employed. It might be employed—to justify incarceration, for discourse uttered by word-of-mouth or in writing; and thus—for that appeal to the Public Opinion Tribunal, to which no obstruction should in any case be opposed. Under the existing fee-gathering system, it is employed, as often as by the price put by judges on their appropriate services, real or pretended,—the impossibility of compliance with their mandate is produced. Having made a man poor, they proceed, and punish him for being so. For poverty,—for non-performance of impossibilities,—for an offence to which the Judge himself has given birth,—for these things it is that the Judge punishes. And, to oppression, adding insult and defamation, he punishes, for alleged contempt, where terror—the opposite to contempt—is certain, and contempt impossible.

[* ]See further on this subject, Section XXIV. Expense, how provided for, note.

[† ]If, in this way, throughout the whole field of litis-contestation, and in particular throughout the whole field of delinquency, the burthens, so far as the pecuniary circumstances of individuals admitted, were laid exclusively on the party in the wrong,—all factitious costs being, as upon the here-proposed summary system they would be, abolished,—not only might the party in the right be exonerated of all the expenses, to which, under the existing regular system, he is subjected by unreimbursed costs,—but, in no small proportion, might be defrayed that expense, the burthen of which is, under the here-proposed system, transferred from the back of the suitor to that of the Government, as trustee for the public at large. But, such is the power of that delusion of which words are the instrument, that, for a long time, a much less burthen than that which is endured with patience under the name of costs, might, probably, by men in large proportion, be bitterly and loudly inveighed against, if imposed under the name of punishment.

[* ]1. The topic of remedies being now, so far as regards the present purpose, at a close,—turn now to the existing system. Of the four species of remedies,—the originally-preventive and the suppressive are not here in question: remain the satisfactive, in which is included the compensative, and the punitive, or say the subsequentially preventive. In relation to these two, what then does the existing system? Of these two, for wrong in no shape does it so much as propose to itself to make provision of more than one. Sorts of shops, of which Judge & Co. are the shopkeepers, two: commodities sold, in one of them, a chance, such as it is, for money, which, when given in the name of compensation for wrong, they call damages; commodity sold in the other sort, a chance for the benefit produced by punishment; the enjoyment, such as it is, reaped by one man, from the contemplation of the suffering produced by punishment inflicted on another:—say, for shortness, the pleasure of revenge, or vengeance: and, in one of the shops, moreover,—namely, the King’s-Bench shop,—you may call for damages or punishment, which you will; but (what seems whimsical enough), both together, even at that shop, where both are upon sale together, you cannot have. True it is—that while, in consequence of your asking for it, they serve out to you a quantity of the commodity you ask for—namely, the chance for damages, they serve out to you along with it, a quantity more or less considerable, of that other commodity which you have not asked for. But, no thanks to them. They don’t know that they do so: they don’t know what it is they are doing.

2. It is not by them that the commodity you did not, is added to the commodity you did, ask for. Not by their hands is this addition made, but by the hands of Nature. It sticks on without their perceiving it, and thus it is that you come by it. Go to a plumber, and buy a quantity of lead: buying the lead, you buy the chance of a quantity of silver in it; but if there really be any, it is more than the plumber knows of: it was left in, to save the expense of taking it out; and, in the case of the King’s-Bench shop, where, under the name of justice, justice or injustice is sold, as it may happen,—whether the quantity of the suffering, which thus sticks to the damages, when actually served out, be sufficient for the purpose of the subsequentially-preventive remedy, is matter of accident. They know as little about it, as the plumber who serves out the silver with the lead, knows what use will be made of either: they know about the matter, as little as they care.

3. A natural question here, is—seeing this—that a shop is always open, where the two commodities may be had together, for the price of one,—the so much less valuable, along with the more valuable, and without any extra charge for it—how is it that, to any of the shops any man goes and gives his money for the less valuable article alone?

4. The answer is—that the difference depends upon evidence: upon the source, and thence the reputed quality, of the evidence which the party wronged happens to have at his command. For, according to the rules of the several shops, along with your money, you must, for the most part, for form’s sake, have at your command and exhibit a quantity of evidence: at any rate a something which, without being evidence, is by them received as and for evidence. The King’s-Bench shop has, as above intimated, two sides—the civil side and the penal side: on the civil side is sold the chance for damages: and there the evidence they insist upon is of a particular sort, regarded as a superior sort;a and if (such is your misfortune) you have none of this sort to produce, you must either go without remedy, or betake yourself to the other side: in this case, all you can have for your money is the pleasure of revenge; and for that, the shop you must apply to is either the penal side of that same King’s-Bench shop, or some other shop, where they have nothing better to sell than this same pleasure of revenge.b

5. But, of this commodity,—the chance of which is thus sold on the penal side, and is worth so little, and to a man who believes in the same creed as those Judges profess to believe in, worth absolutely nothing,—the price, though so high as to be out of the reach of the vast majority of the people, is still abundantly less extortious and unreasonable than that of the chance for compensation.

6. Under the existing system, “no wrong is there that has not its remedy:” such is the aphorism delivered by Blackstone, and ready to be repeated by all those in whose minds law learning has extinguished the sense of shame. “No wrong is there that has its remedy:” this aphorism is not indeed exactly true, but it is beyond comparison nearer to the being so than its above-named opposite.

7. That which, on this occasion, was undertaken for, is an indication given of the inadequacy of the provision made, under the existing system, by Judge-made law, for remedy to wrong in the several shapes of which it is susceptible, together with some general intimation of the causes by which such its worthlessness has been produced: of two of these causes, such general intimation has here been afforded: namely, the absurdity of not so much as attempting to administer any more than one of two remedies, where the nature of the case admits of and requires the application of both; and the still more flagrant absurdity of shutting out or letting in the one and the same evidence,—that is to say, the testimony of one and the same man,—according as it is the one sort of remedy or the other that, if admitted, he would apply for. As to what regards this latter absurdity, further particulars belong not to this place; but they may be found in ample abundance in the Rationale of Evidence.

[* ]Immaterial.] 1. Not so as to lawyers, professional or official. This supposed £20,—let it be instanter, and by the order of the Dispatch Court Judge, that it is paid,—the £20 is £20, and no more: let it be paid, not till after the fiat of a jury has been obtained for it,—the £20 is £50 perhaps, perhaps £100, the difference being distributed among these same lawyers: how many more hundreds—is what, till after the event, no man can have any assured ground for saying.

2. Damages without a jury! Trial by jury set at nought! Palladium of English liberties invaded! Arbitrary power—power, till now unknown to the Constitution—conferred on Judges! Constitution subverted! Chaos come again! Theses these amongst others, for declamations by learned scholars. Closely interwoven with the heart-strings of common lawyers, is the love of jury-trial: how could it be otherwise? for of this love, the root is now laid bare.

3. In another work of the author’s,—namely, his Procedure Code, Chap. XXIII., the subject of Jury-Trial is treated of at large: and a substitute for the present system provided (in Chap. XXVI.) under the denomination of a Quasi-Jury. According to the plan proposed,—at the instance of a party on either side, or of the Judge himself, all benefit derivable from the employment given to a Jury is afforded by use of the body styled as above, a Quasi-Jury; of which, for minimization of the expense, the number is minimized, and by which is possessed every power possessed by a Judge except the decisive power styled the imperative: this being reserved to him in consideration of his superior intellectual aptitude, and for the sake of laying on his shoulders responsibility in its fullest state.

4. But the mode of procedure, to which the Dispatch Court is the experimental substitute, being one in which no Jury is employed, the non-employment of a Jury could not be urged as a ground of objection to it: and on the present occasion, an object highly desirable was the maximum of simplicity:—an object to the attainment of which no small obstacle would have been presented by the addition of the ulterior institution of a Quasi-Jury.

5. In the here-proposed system, is there any degree or sort of difficulty? any sort or degree of danger? or of probability of evil consequences? In the here-proposed system, no. In the existing system, ifyou wish to find it, you must look for all the difficulty, for all the mischief; and not in probability, but in certainty.

6. Difficulty! in what should it consist? What is required is, that on each occasion a man should judge as he would in his own business, between his own children, or his own servants, in his own house. In so judging, wherein consists the extraordinary difficulty? If really any such difficulty have place, where is it that it commences? Between the state of things which forms the matter of the domestic, and that which forms the matter of the forensic mode and course of procedure, the only differences are those which regard the number of the persons, and the extent and number of the places concerned, and the powers for effecting execution of orders and elicitation of evidence. But, for effecting execution of orders and elicitation of evidence, powers no less sufficient than those which within its field of action the domestic tribunal possesses, and much more ample and effective than the existing tribunals all together possess, are by the supposition given to the here-proposed forensic tribunal. These powers being by the supposition possessed, at what addition to the number of the persons, at what addition to the amplitude or number of the places, subject to the authority of the domestic tribunal, should the difficulty supposed to have place in regard to the business of the forensic tribunal commence? In these may be seen questions to which it belongs to the objector to find answers: and in the finding any, rational and satisfactory,—here indeed it may well happen to him to experience no small difficulty.

7. Danger? probability of evil consequences? Under the here-proposed system, absolutely none: under the existing system, not merely probability of evil consequences, but certainty:—yes, absolute and unhappily abundant certainty; if factitious delay, expense, and vexation, not to speak of misdecision, and non-decision where decision is due,—are evil consequences.

[* ]Ends, sacrificed to means,—gnats strained at, camels swallowed;—inconsistencies in endless tissue:—such throughout is Judge-made law.

[† ]1. Note here, that, in several of the above articles, may be seen so many specimens of the matter of the proposed Penal Code, Book or Part I. Offences collectively considered: the remainder of which, namely, Part II., is contained under the head of Offences severally considered.

2. In the accompanying Table, are exhibited the contents of this first part, in and by the titles of the several Chapters: for the present purpose, to the words employed in the original Table, are added here and there a few words of explanation, Annexed to each title is proposed to be, if time and space admit,—a reference to that article of the present section, which presents to view a sample of the contents of it.a

3. Not altogether uninstructive (it is hoped) will be the comparison, if made, of the here-exhibited matter and titles of the proposed Code—with the matters and titles of any work by which, under the existing system, the Penal branch of law is undertaken to be exhibited, and exhibited accordingly, as it is, or, as it is said to be: Law—as it is, namely, Statute law, or say Parliament-made law: Law as it is said to be, namely, Fictitious Law, or say Common Law, or Judgemade Law. Instructive, in no small degree, the comparison—between the anxious and continued regard paid to human feelings throughout the one; and the utter disregard throughout the other:—to human feelings, that is to say—to pain and pleasure—(for the several diversifications of which, in the little work intitled Table of Springs of Action, determinate denominations have been found and employed)—disregard, in a word, for everything but the sinister interest of the framers, contemplated through the medium of the technical words and phrases of which the gallimautrey is composed.

4. In Book or Part II., containing Offences severally considered—under the head of each offence, application is made, of the matter of the greatest part of Part I.: application, that is to say, either by quotation or reference.

5. Of the penal matter employed on the present occasion, no part is there, which is not in and by that same proposed Penal Code, employed likewise and applied on other occasions; but in the ulterior and more extensive use so made, no sufficient reason was seen for omitting, on the present occasion, to make application of it to the present particular use. Being, however, necessarily modified, and in many instances more or less changed, in subserviency to the present special purpose, the several articles are not to be considered as exact quotations from the work at large. By the being thus presented to view as having been applied to a more extensive purpose, the matter will not (it is believed) be found rendered the less applicable to the present purpose.

6. But for the determined withholding of encouragement in every shape from above,—by the mere assurance of appropriate attention, effective encouragement would have been administered, and that same Penal Code would, many years ago, have made its appearance in a complete state.

7. On a late occasion, forgery considered in its application to no other modification of the offence than that by which property is affected, furnished of itself matter for a large folio: and of the ground which, as may be seen here, no more than a part of one single page sufficed to cover, no more than a part was covered by the hundreds of pages of that same folio volume. What, no that occasion as on others, was not considered, is—that forgery, in the whole of its extent, is but one modification of the art of deception;—and that, of all the offences, actual and possible, in the calendar, there is not one, in and to which this baneful art is not capable of being rendered instrumental and suxiliary. Constructed on the condensed plan here exemplified, a Generally-applying Code (so called in contradistinction to a System of Particular Codes, applying to so many different classes of persons)—or say, for shortness, a General Code—may be composed of no more than one or two octavo volumes, and yet be perfect: constructed upon that present pursued plan, it may be composed of so many hundreds, or as many thousand volumes, and still be imperfect. The Penal Code at large is in preparation and considerable forwardness. But, as already intimated, not exactly the same as those here employed, are the terms and method there employed. By the application here made of the principles,—abridgment, and alteration, in other respects, were necessitated.

[* ]Elicit evidence.] In relation to this subject, see Constitutional Code, Vol. I. Chap. VI. Legislature, §27, Legislation Inquiry Judicatory.

[* ]Power to elicit evidence, omnigenous, unaquâque:—by these few words, may be kept in memory the matter of these three articles, 63, 64, and 65.

To this Judiciary part of the Act belonged the operation of instituting the powers relative to the elicitation of evidence; to the Procedure part presently ensuing, belongs the operation of directing the application to be made of those same powers.

[† ]Certainty.] 1. Under the existing system, uncertainty is at its maximum.

2. Take for example the case of perjury, in the course, or on the occasion, of a suit: to authorize conviction, two witnesses, or what is regarded as equivalent, being at present made requisite,—and the expense of prosecution being such, as persons in comparative number extremely small add to the will the power of defraying,—the consequence is—that, of many thousands of instances, in which the offence is committed, not more than one is prosecuted for.

3. Under the existing system,—not from the Judge but from the party, in all cases called civil cases, comes the demand for evidence. Before application made for the subpœna (as it is called)—that is to say, the evidence-requiring mandate, the solicitor of the party to whose interest in the suit the evidence is regarded as serviceable, enters if he can into conversation with the supposed evidence-holder, and performs with him a sort of preparatory rehearsal.

4. Mark now the effect of this state of things: that is to say, of the power of producing misdecision through deception, which it places in the hands of a dishonest evidence-holder.

5. An evidence-holder, whose evidence is necessary to right decision, is inimical (suppose) to one of the parties. By the existing system is put into his hands a sure mode of affording gratification to his ill-will at the expense of justice.

6. His testimony, supposing it truly delivered, would it be favourable to his intended victim?—he either refuses all communication with the inquiring agent, or by falsehood represents it as being unfavourable: and, to this falsehood, it not being uttered upon oath, nor in any other way punishable, complete and sure impunity is thus secured to the author of the device. On the other hand, will the testimony, in so far as true, be unfavourable to the destined victim? If yes, the evidence-holder enters into conversation with the aforesaid agent, and furnishes him with such false information, as, by its apparent favourableness, engages the aforesaid victim to become or continue, party to the suit: party, on the plaintiff’s or defendant’s side, as the case may be.

7. At the trial, being now upon his oath, he says nothing but what is strictly true.

8. Consequence to the thus described victim, loss of cause: thus is the caught in a trap, and perhaps ruined.

9. And in this trap may any man be caught by any other man who will be at the expense of thus baiting it.

10. From this trap,—the sort of wisdom and probity which so eminently characterize the existing system have concurred in excluding all means and possibility of escape.

11. When the dishonest witness comes upon his examination before the Judge,—you (the party injured by him), may you make known his dishonesty?—may you bring forward any evidence, or give utterance to any observation, the effect of which might be to cause him to appear to be what he is?—Not you indeed: this would be—to “discredit your own witness:” and, says the Common-Law rule, “you must not discredit your own witness.” This (says the reason of the rule) would be as much as to say he is not trustworthy; which having said, you are thereby estopped from saying anything to the contrary of it:—as if the human species was composed of two distinct sub-species; one that never told anything but truth; the other, that never told anything but falsehood.

12. Behold now at its height the triumph of law over justice! Behold now the indiscriminate defender of right and wrong, with the constant predilection and partiality for his more munificent custom—behold him in all his glory: behold him pouring forth his torrent of reproach, obloquy, and contumely, on the party, who to his knowledge is in the right,—and the praise of probity and injured innocence on the dishonest wrong-doer, by whose villany, with the assistance of his hirelings, the ruin of the destined victim has thus been accomplished.

13. Give the reins now to imagination. Scene a tavern:—Behold the partie quarreé: 1. The so successfully dishonest suitor; 2. The ingenious witness—his accomplice: 3. Their experienced and expert attorney; 4. Their learned and long-robed confidential advisers—all laughing, chuckling, and jesting, over the convivial bottle.

14. “He spoke falsely on one occasion, ergo so he will on every occasion.”—What logic!—as if the same man who would speak truly when he saw more to fear than to hope from speaking falsely, might not speak falsely when he saw more to hope than to fear from speaking falsely; as if the accident of having been a percipient witness of this or that matter of fact, had for its proper consequence the putting him into the power of whosoever happened to have need of his testimony, and this so completely, that a lawyer might with truth and propriety say of him, to the party whom he is hired to do injustice to, this man is your own witness:—as who should say “this horse is your own horse,” or “this ox is your own ox!!!”

15. Excluded by this article will be—all exclusion put by the existing system upon evidence on the ground of security against deception. For a demonstration of the impropriety of all these exclusions, and an indication of the ways in which deception, instead of security against deception, is produced by them, see Rationale of Evidence, Book IX.

16. Nor, of enlightenment, applied to this subject, is there any want of precedents in existing practice. For inquiring into the state of the law, with a declared view to its improvement,—three separate commissions, to so many different sets of commissioners, have been issued within these few years. In every one of these commissions a power to this effect stands included. In no one of these commissions is to be found so much as a single instance of application made of any of those exclusionary rules, of which the mass of the matter of Common Law on this subject is, in so large a proportion, composed.

17. As little are any traces of regard for them to be found in the practice of the two Houses of Parliament and their committees, whatsoever be the subject of the inquiry.

18. If, to the exclusion put upon these same exclusionary rules, by each of these three component parts of the legislative body, acting separately, no reasonable objection can be made,—with how much less reason can any objection be opposed to this same arrangement, if the authority of the whole of that supreme body be thus employed in the making of it, as it will have been if this Bill passes into an Act?

19. Under the existing system,—whether on the score of verity, a piece of evidence shall be elicited or not, depends upon the name given to the Judicatory in which the suit has place, and the course of procedure that happens to be pursued in it. In a Judicatory styled an Equity Court, the testimony of a party is excluded when spontaneous, and allowed to be extracted, and thus admitted, when reluctant: in a Judicatory styled a Common-Law Court, it is neither admitted when spontaneous, nor allowed to be extracted when reluctant.

20. Think now of the quantity of injustice, and of human suffering in consequence, which, from the origin of the existing system to the present day, cannot but have flowed from this one source!—from misdecision thus produced, obviously; from non-decision for want of legal demand, not so obviously, but not less incontestably:—by exclusion put upon evidence, which if admitted would have been veracious and effective,—right, in all its shapes left undemanded; wrong, in all its shapes, left unchecked by remedy: by remedy in any one of its shapes—preventive, suppressive, satisfactive, punitive.

[* ]Productive of additional benefit to justice would be—an additional arrangement, for drawing upon the public purse, for evidence from this source, when the parties, one or more of them, are in a state of pauperism: in the principle on which the proposed practice is grounded, as per Constitutional Code, Ch. XII. Judiciary Collectively, § 13, Justice for the Helpless.

Even under the existing system, precedents applicable to this purpose are not altogether wanting.

[* ]Ecclesiastical.] A natural enough question here is, why include those Courts? Without this reinforcement, will not the opposition from the Equity and Common-Law Courts be sufficient? Answer: By the insertion,—notice of the opposition is given to the people at large, and to Equity suitors in particular; and their attention is thus called to the obstacle which they have to surmount; of this obstacle, were it not for this warning, they might not be sufficiently aware.

[† ]See Art. 3.

[* ]1. By the Equity Courts, from first to last, power, legislative in effect, though in so inconvenient a form, has been exercised:—to wit, by the establishment of rules of action, in the establishment of which the King in Parliament—the only supreme legislative authority recognised as such—has borne no part.

2. Not content with this, they have of late years, declaredly, and without disguise, overruled acts of Parliament to a vast extent. Witness the statute of claims, the statute of frauds, the statute for affording protection against undocketed judgments, and the register acts. See Tyrrell, 306. Repealed is the word this most enlightened and beneficently-intentioned professional and official lawyer employs, on this occasion, without scruple. In regard to tithes,—“everything has been presumed,” say the Real Property Commissioners, Report I. p. 64, “to disturb enjoyment, and stir up controversy.” And again, p. 68, “the frequent instances, in which, by technical rules, never understood but by lawyers, the intention of the testator, which Courts always profess to observe, is completely defeated, are a reproach to our law.”

3. The circumstances in which, on the part of the legislature, this anti-constitutional insubordination, confusion, anarchy, and uncertainty as to all rights and obligations, have had their cause,—apply not to this case alone, but to Judge-made law throughout the whole of its expanse: and have accordingly, on many an occasion, been brought to view elsewhere.

4. States of the mind, to which these evils may be referred, are—partly indolence and negligence,—partly sinister interest. Legislators, regarding themselves as having a community of sinister interest with Judge & Co., give themselves thus, by connivance, the advantage of establishing, by the hands of Judges, in an indirect and unobserved manner, and without drawing the attention of the people at large upon the subject,—many an arrangement, which self-regarding prudence might have prevented their attempting to establish by their own hands.

5. Resistance to any arrangement to the effect thus proposed, may accordingly, without danger of injustice or error, be considered and stated as conclusive evidence of a wish and endeavour to give strength and extension to absolute, under the mask of limited, power, in the hands of the ruling one, and sub-ruling or co-ruling few.

6. Any one of a number of words would,—if that same arbitrary power were not obstructed, as it is, by the correspondent and opposite arbitrary power of relatively ignorant men in the situation of jurymen,—suffice to give to these Judges an unlimited power of virtual legislation.

7. In their hands, the word libel would of itself suffice to place the press on the same footing as that which it is on in Spain and Portugal.

8. The word conspiracy has for some time been making its progress over the field of penal law, and is capable of converting into a crime any species of act, on account of which, it is the will, determined by the sinister interest or interest-begotten prejudice, of the Judge, to inflict punishment on any individual by whom that same act, how completely soever innoxious, has ever been done.

9. No wonder that it should be more agreeable to Judges to see the manufacture of the rule of action in their own hands, than in those of the legislature: to Judges, and to all members of the legislature, who, in their own view of the matter, are, as above, linked with Judge & Co. by the tie of a community of sinister interest.

10. As a material and local field is covered by webs, spun out of the bowels of spiders,—so is the logical field of law covered with nets, spun out of the brains of Judges—and more particularly of English Judges.

11. Thus it is, that over so vast a portion of the whole extent of the rule of action, the mind of the Judge is either the best or the worst source in which it can originate: the best, when untainted with, or purged from, the impurity infused into the situation by the fee-gathering system; the worst, when infected and polluted by that all-corrupting contagion.

12. From these considerations has been deduced, a plan for preserving the rule of action,—when brought from the state of Judge-made law, into the state of a code,—from being covered over with a fresh growth of that same imaginary and spurious law.

13. To the general propositions laid down by Judges, in the delivery of their judgments,—as well as to the tenor of those judgments themselves,—it would be made matter of duty, to every Judge, as often as he saw, in the text of the Code, a passage presenting a demand for amendment—whether defalcative, additive, or substitutive—to apply a proposed amendment, expressed in the very words, in which, if approved, it would stand as part of the act to which it applies itself: exactly in the same way as that in which an amendment is applied in and by a legislative body: in which case,—in so far as, by the only legitimate legislature approved,—it would be aggregated to, and become part and parcel of the body of the Code. In relation to this matter may be seen, in terminis, a string of provisions in the proposed Constitutional Code, when published: to wit, at Ch. XII. Judiciary Collectively—§ 20, Judges’ eventually-emendative function.

14. By so simple an expedient, and with such entire certainty, will be accomplished—that state of things, the accomplishment of which, in the hope and endeavour to prevent it, men in such numbers have been so forward to declare impossible.a

[* ]Body-adduction.] Part and parcel it is of the here-proposed system, to employ for appellatives to all the several judicial mandates and other written instruments of procedure, locutions expressed in the mother-tongue, and rendered as extensively intelligible as possible, instead of words such as Habeas Corpus; or scraps of words, such as Ca. Sa. or Fi. Fa. having for their effect, not to say for their object, the contributing to render the rule of action—the declared standard of obedience—inaccessible to those at whose hands obedience is called for, and on whom, in case of non-performance, punishment is inflicted. Under the existing system, this vile jargon, by which mystery and a semblance of science are made out of nonsense,—and which, in proportion to its maleficence, should be an object of abhorrence—is rendered an object of as much respect, as by sinister interest, interest-begotten prejudice, and authority-begotten prejudice, can be procurred for it. To the peculiar terms of botany this sort of translation has for this long time been applied. Say peculiar in preference to technical: the appellative technical having, by the maleficent application made of it by lawyers, been brought into such merited disgrace. Of an innovation correspondently beneficent, the present occasion furnishes a convenient opportunity of exhibiting an exemplification.

[* ]Necessary.] 1. Of the necessity of all this precaution, the persuasion has for its ground the observation made of the rooted habit of insubordination, which, under matchless constitution, has place, on the part of the Judges of the Superior Courts, in relation to the legislature.

2. In two distinguishable shapes does this insubordination show itself: not only muffled up in a covering of technical jargon, as in the case of a decision on grounds foreign to the merits (as to which see Petitions for Justice, V. 476); but, even in an open way, by decisions, on the occasion of which, disobedience to Acts of Parliament is explicitly and undisguisedly avowed.

3. In the practice of the Earl of Eldon, when Chancellor, an instance of it may be seen in the pamphlet entitled “Indications respecting Lord Eldon,”a (V. 348.) No want on the part of the learned fraternity of lawyers will there be of exertion to frustrate the object of this act. Their endeavours must be anticipated and provided against. For further example of what is capable of being done in this way, behold a case which happened to fall within the cognizance of the author of these pages. Needful for a public purpose was a piece of land to be bought by government. Attorney-general, the now Earl of Eldon: Solicitor-general, the now Lord Redesdale. Under their joint care was drawn an instrument necessary to the obtaining possession of the land: reluctance on the part of an occupier was necessary to be provided against, and power of seizure in a certain event provided. In a certain case, yes: but in what case? In the case of “refusal,” said the instrument: in that case and no other. What was the consequence? That an occupant had but to sit silent and inactive, forbearing to signify any refusal; and there the business would have ended, unless King, Lords, and Commons, had been set to work afresh, to set it a-going again. After much entreaty, with no small reluctance, these pre-eminently learned persons were induced to make the requisite change. Of this inaptitude of expression, where are we to look for the cause? To inaptitude in a moral shape, or to inaptitude in an intellectual shape? In a moral shape, in one; in an intellectual shape, in both—was the hypothesis of one who was a sufferer by the delay: on the part of both, the indescribable and continually-declared horror, of all change is matter of notoriety:—horror of all change;—in other words, anxiety to preserve from diminution the aggregate mass of human suffering, leaving it to receive increase from the undisturbed action of all those causes, by which it has been raised to the height at which it stands. These things considered, figure to himself who can, the agonies into which they will be thrown by the prospect of a Dispatch Court!

4. By the hands of Judges the ruling and influential few are thus enabled to serve their own particular and sinister interest, at the expense of the interest of the subject-many, in an oblique and unperceived course, in cases in which shame or even fear would prevent them from doing so in a direct and avowed way.

5. The emblem of the cat’s paw is thus in some sort realized: in some sort,—but with this difference: in the fable, it was not without reluctance, nor without smart, that the quadruped lent its hand: whereas in the case of the bipeds, no smart is ever felt, nor consequently any reluctance: in the stock of the ready-roasted and tempting chesnuts they got their full share.

6. This community—of feeling, and sinister interest, and conduct—can never be too frequently brought into nor too distinctly and conspicuously held up to view.

[* ]Machinery.] 1. In relation to the existing regularly-proceeding Judges,—consideration had of the situation and circumstances in which they are placed, in respect of sinister interest, interest-begotten prejudice, and authority-begotten prejudice,—the opinion which, on this occasion, must be assumed and acted upon by the legislature, cannot consistently be any other than that, for preventing the endeavour to frustrate the establishment of the proposed summary system, nothing short of a full persuasion of the impossibility of success can suffice.

2. Unfortunately for all parties—for the community at large on the one part—for the fraternity of the men of law, taken in the aggregate, on the other,—no satisfactory compensation does the nature of the case admit of their being made to receive:—for the pecuniary suffering, the official branch of the order, yes; but the professional branch, no:—for the suffering in point of estimation and influence, neither the one branch nor the other.

3. Think of Sir Ilay Campbell. Rather than see the Judicatory of which he was President cut in two, and himself reduced to preside over no more than half of it instead of the whole, this President of the Supreme Judicatory of Scotland divested himself of the whole.

4. Yet in this case no defalcation had place in the article of estimation: in no such character was he held up to view as that of a man whose sole title to esteem at the hands of the community was the habit of proceeding, during the whole of his official life, with more or less skill, in a course adverse to the welfare of the community in respect of the ends of justice.

5. In this state of things, that for the frustration of the design all imaginable engines will be set to work, from all quarters, is the assumption that ought to be acted upon.

6. In the instance of any one or even more of the persons so situated, suppose—not only no obstruction purposely opposed to the introduction of the proposed system, but even aid actively and zealously given to it; still, by no such phenomenon would disproof be offered of impropriety on the part of the general rule: a true hero, in this civil line of public service,—a true hero would any and every such functionary be: but men of ordinary not of heroic mould, are the men the existence of whom should, on the occasion of this, as of all measures of legislation, be assumed and acted upon.

7. Among the devices employed for this purpose, by a man of this fraternity, will of course be—the strutting upon paper, and swelling and looking big, in Houses Honourable and Right Honourable, like a Cæsar, an Alexander, or a Bombardinian on the stage,—or a turkey-cock in a farm-yard,—with scorn and indignation poured forth against the affront put, by any suspicion of this kind, upon his honour and dignity.

8. Suspicion? yes: but for this there is no help: for it is by the nature of things, or say by the nature of man, that the suspicion will be stirred up. Suspicion, and thence resistance to the force of his authority, in the event of its being employed in any such endeavour as that of frustrating this plan of beneficence and justice.

9. Affront? true: but from every such affront it depends upon himself most effectually and completely to preserve himself: and that by so simple and easy a means, as the negative act—the act of abstaining from all such endeavours as his situation exposes him to the suspicion of wishing to use.

10. Not but that, from all humiliation not indispensably necessary to the effectuation of the design, the existing superior authorities have, all of them, by the course thus taken, been carefully preserved: on no occasion, by any functionary so situated, is any operation called for: only at the hands either of this or that subordinate of theirs, or of individuals in the situation of suitors.

11. Pursued in this case is the pattern, set by the Equity Judges, when over-ruling, and reducing to nothing, the power of the Common-Law Judges. Not to those same Judges themselves, but to the suitors in their respective judicatories, were the mandates of the Equity Judges directed.

12. Thus it was—that, by the Equity Courts, greater delicacy was exemplified in their deportment towards the Common-Law Courts, than by the Common-Law Courts to one another.

13. When, from the Court of Common Pleas, the cognizance of a suit is transferred to the Court of King’s Bench, error is in so many words imputed to the Judges of that inferior Court.

14. So, when, from the Judges of the Court of King’s Bench, in some cases to the Judges of the two other Common-Law Courts sitting in the Exchequer-Chamber, and thence to the Lords; in other cases, directly to the House of Lords.

15. But, on the conduct of no one of all these dignitaries, will any imputation of error be cast in any such direct way, by a Judge of the Dispatch Court.

[* ]In the procedure part, under the head of Subsequential Evidence elicited, the principles respecting the elicitation are prescribed; but the present being the place allotted to the powers given to the Judge, here is the place in which, in the first instance, mention requires to be made of the corresponding checks.

[† ]1. As to the check thus applied to the power of the Judge,—in the eyes of corruptionists, and all other persons, if any there are, who are wedded to the existing system, far from affording an answer to any objection on the score of the magnitude of the power, it will operate as an additional objection: forasmuch as, in so far as it has this effect, it establishes what in such eyes will, of course, be a bad precedent; having for its tendency, the reconciling the public mind to the idea of subjecting to eventual punishment, and thereby to present and actual controul, those who, in the existing state of things, are not by law subject, in effect, to punishment or controul in any shape.

2. The greater the power a man has of doing wrong, the less likely is he to do wrong;—such is the vulgar theory; till at last, when you come to the highest pinnacle in the temple of power, there you behold a being perched upon it who is under an absolute personal incapacity of doing wrong in any shape—a being who could not do wrong, were he to labour at it with all his might:—and, under matchless constitution, upon this assumption is government founded.

3. The King is impeccable; the House of Lords is impeccable; the House of Commons is impeccable: and yet there are not three impeccable, but one impeccable—the Parliament. The House of Lords is legion; the House of Commons is legion; but these are legions, not of unclean, but of the very cleanest spirits. Whosoever would find favour in their sight must thus think, or pretend to think, of the constituted authorities. Of unintentional error, a successor of each official or other influential person may be susceptible; of intentional error, of evil-consciousness, not: neither of the one nor the other, the actual incumbent.

4. Intentional error or misconduct in any shape, especially in that shape in which it has place every day on the part of all,—that is to say, departure from the law of veracity and sincerity,—is universally held a good ground for a man’s subjecting himself to the risk of being put to death by a disputant, for the chance and hope of putting to death that same disputant.

5. Neither on this occasion, nor on any other, should the utter impunity secured to Judges under the existing system be ever out of mind. Urged by remorse, or any other less difficultly supposable cause, should an English Judge court punishment, his prayer would not be granted. Nemo auditur, perire volens—is among the maxims of Rome-bred law: in English law, it would not be cited, but the benefit of it would be granted.

6. If in large proportion men were not found silly enough to give credence to absurdities in the shape above pointed out, men would not in so large a proportion, not to say universally, be found possessed of the effrontery necessary to the giving utterance to them. But forasmuch as every man perceives that it would be for his benefit to be regarded as possessor of absolute perfection, or something little short of it, and his pretensions would find no opponent in any other man whose pretensions to it he does not oppose,—hence it is that by common consent—by an agreement, not the less effectual for being tacit,—every such man gives false evidence in favour of other, and by this evidence the unreflecting multitude of people without doors are, in but too large proportion, deceived and dealt with accordingly.

7. Thus would the check provided threaten them with the prospect of seeing themselves divested of the power of exercising depredation and oppression without stint: that power which so lately, by the influence of Lord Eldon, Lord Tenterden, and Mr. Peel, obtained at the hands of Parliament, in addition to those motives which can never be wanting: the means of heaping affliction on affliction, on a class of men distinguished from all others by the distress under which they were labouring: namely, by the power of imposing on them taxes without stint; this, for the purpose, and with the effect, of putting the money into the pockets of the learned collectors.—See Indications, &c. V. 348.

8. For, in one of the ways or modes in which subordination is established, in relation to this newly-invented sort of Judge, would—not only the Chief Justices of the Common-Law Courts, but the Lord High Chancellor himself, be unavoidably placed in a state of subordination.a

9. Manifest, it is true, to the eyes of the Chief Justice of the King’s Bench could not but be the state of subordination in which, in the more direct and conspicuous mode, the newly invented functionary, placed, as above, over his head, will be reciprocally placed under him. Still, by what he gained in this way, far from adequate would seem to him the compensation for what he would lose in that other way.

10. For, in no instance could the old established dignitary inflict punishment or pronounce sentence on conviction on the new intruder, without presenting to the imagination of the people at large, a scene, in which he himself would be acting the principal character, while undergoing that same humiliation.

11. Consequence, of course,—from the great Westminster-Hall volcano, now at least, if not before, a volley of explosions:—explosions of learned gas from all quarters.

i. “All this immense mass of power! a mass so absolutely unprecedented! and to whom?—to such an upstart creature of the fancy, as this imagined Judge:—power, over every member of the community, the King alone excepted: power, over everybody, even to the purpose of punishment: power, over the head of the law!—power, and for the declared purpose of superseding his authority!—Constitution subverted! all good order—order itself destroyed, and confusion substituted.

• “Blush! blush, thou sun! Start back, thou rapid ocean!
• Earth! mountains! valleys! all commixing crumble!
• And into chaos pulverize the world!
• For Grimgribberian has received a blow!
• And Chrononhotonthologos shall die!”

ii. “And the inconsistency! the monstrous inconsistency! The thus constituted supreme dignitary, to whom this immense and unprecedented mass of power is given, made to answer to interrogatories! subjected to a treatment, to which the Common Law, in its matchless humanity, suffers not the vilest criminal to be exposed!” Thus far for the ears of the lay-agents.

iii. Then, in a whisper, to learned brethren—“What a precedent this! At this rate, where is the criminal that will escape?—at this rate, a man really guilty will have no chance! He will confess at once!—all our learning, all our ingenuity, all our eloquence, will be of no use to him! Think of the learned pockets!—think of our pockets!—think of the vacuum this will make in them! Instead of coming to us, as at present, his money, if he has any, will go to the party he has wronged! What can be more contrary to the very first principles of justice, to every principle of justice?”

iv. And then there is the ex-officio information! Look at these reformists. At one time thus crying out against it; now they are giving employment to it!

v. Then there is the Chief Justice of the King’s Bench enabled now (and as to his willingness, can it at any time be doubted?) to wreak his vengeance on the intruder, by whose upstart power, judiciary authority is in all its established shapes laid low. And to enable him to give himself this regale, what is there wanting, but an invitation from Mr. Attorney-General?

vi. Then sits a jury. But, with the united eloquence of the Lord Chief Justice and the Attorney-General, the mouth-piece of the Crown, thus enlisted together in support of a cause so much their own, where is the Jury that will be able to stand against them? What word can possibly present itself to their tongues other than the word Guilty?

12. Tantalizing, in a sad degree, will thus be the situation of a Chief Justice of the King’s Bench. No otherwise could he root out the effectually responsible power of the Dispatch Court Judge, than on condition of thus undermining his own irresponsible and arbitrary power, that power of maleficence without stint, the loss of which is to every possessor of it, naturally so intolerable.

13. Think of a Lord Tenterden, thunderbolt in hand; and, opposite to and under him, a Sir James Scarlett, calling upon him to hurl it at the head of the devoted Salmoneus!

14. So much for learned objections. Now, at the sound of plain sense, behold them vanish. Each taken separately,—strong, it must be confessed, are the two antagonizing powers. Put them together, and, like the salt with which our food is seasoned, the elements they are composed of put off their corrosive nature, and become mild and salutary.

15. Out of the two dangers is formed security. The old established functionaries will not suffer anything;—and as little will the new created one.

16. As to subjection to interrogation, what danger to innocence is it pregnant with? what consequence, worse than that of clearing it of any imputation that may have been cast upon it?

17. From what source did these objections ever spring, other than that of a wish to afford to guilt, in every shape, an encouraging chance of escape?

18. As to the two Giants—the Chief Justice and the Attorney-General, grim as they are on all occasions, on the present occasion behold them thus rendered not only less grim, but motionless: Motionless! Yea, even as Gog and Magog. Without a call from the Attorney-General, the Lord Chief Justice of the King’s Bench cannot stir; without an order from the First Lord of the Treasury, the Attorney-General cannot, or at least will not, stir.

19. But, suppose the order received. Comes then the matter before a Jury: and, if there be any occasion, on which, in the multitude of these counsellors, there is a safety, this surely is of the number. Say that, on ordinary occasions, when Government prosecutes, they are but too apt to cast off the responsibility from their own shoulders upon those of my Lord Judge, and economizing thought as they would money, say at once Guilty, to save trouble. On an occasion such as this, and this so unextraordinary a one, little apprehension of any such promptitude need assuredly have place.

20. Thus blind were they, for example, when—in pursuance of the standing conspiracy against the liberty of the press—one of the machinations of which was and is, the converting all history into an instrument of delusion by suppression of all facts and comments, by which sin in any shape might be imputed to any one of Blackstone’s Gods upon earth,—the body of the Editor of a Weekly paper was, at the command of Lord Tenterden, given up to him to be consigned to a two years’ imprisonment, for daring to hold up the character of George the Third in an unfavourable point of view.

21. In ordinary cases, true it is, instances of such blindness have in all times been in sad abundance. But the present case is an extraordinary one. To the necessity of justice to human happiness,—and to the hatred of it in the breasts of English Judges,—the eyes of the public, even of that public of which Jurymen are composed, are at length beginning to open themselves. Sir James Scarlett might cry aloud, and Lord Tenterden spare not,—a Jury, after hearing, from the lips of the Dispatch Court Judge, justice and common sense substituted for the first time to pickpocket absurdity and nonsense, would pause (as the phrase is) before they sacrificed the author of so much good to the vengeance of the opposers of it.

[* ]Precedent. Of power not less extensive, a precedent may be seen in that given to the Commissioners for Inquiry into the subject of Real Property. And note, that in that case it was not, as here, by the King in Parliament that the powers were given, but by the King alone, with the counter-signature of the Keeper of the Privy Seal. Date of the commission, June 6: year of the King, the ninth: year of our Lord (not added), 1828.

“And for the better discovery of the truth in the premises,” says the instrument, “We do by these presents give and grant to you, or any three more of you, full power and authority to call before you, or any three or more of you, such and so many of the officers, clerks, and ministers of our Courts of Law and Equity, and other persons, as you shall judge necessary, by whom you may be the better informed of the truth in the premises, and to inquire of the premises and every part thereof, by all other lawful ways and means whatsoever.

“We do also give and grant to you, or any three or more of you, full power and authority to cause all and singular the officers, clerks, and ministers of our said Courts of Law or Equity, to bring and produce upon oath before you, or any three or more of you, all and singular rolls, records, orders, books, papers, and other writings belonging to our said Courts, or to any of the offices within the same, as such officers, &c.”

If, when conferred by the Crown alone, the conference of this power is legal, constitutional, and unexceptionable,—how much more clearly unexceptionable where the whole power of Parliament is, as here, applied to it? True it is, that the operations, to which in that case it extends, are no others than those designated by the words “bring and produce,” not extending to definitive transference; but, for the purpose here in question, such transference is necessary.

Turn now to the existing system. Look to it under the so-perfectly-distinguishable, though so-intimately-associated heads of factitious delay and expense; not forgetting complication, thence obscurity, uncertainty, and misdecision.

Living instruments, by means of whom, and consequently upon whom, Equity Courts operate, three: a Sheriff, a Serjeant-at-arms, and a Sequestrator: a Sheriff, for operating indiscriminately upon persons and things; a Serjeant-at-arms, for operating commonly upon persons only; a Sequestrator, for operating upon things exclusively. These, for Equity Court proceedings, by a bill and answer, exclusive of proceedings under a Bankruptcy Commission: as to which, see the next section—Sect. VII. Prehensors.

1. First, as to the Sheriff. This functionary is the common Jack-of-all-sides (juvenile cricket-players will understand this), to four different masters at once; namely, the three Westminster Hall Common-Law Courts, in all ordinary cases, and the Equity Judge, now and then, in an extraordinary case. By the Sheriff, understand, on this occasion, the Sheriff of Middlesex: the sheriff of that county alone, of all the fifty, having been regarded as having his residence near enough to the Equity Justice-chamber, to be capable of being operated upon by the Equity Judge, without preponderant inconvenience; accordingly, over this Edom alone has the David of Equity ventured to cast forth his shoe.

Not much less near at hand, it is true, than Middlesex, are three other counties; Surrey, to wit, Kent, and Essex;—a discovery, of which, for other purposes, and in particular for purposes styled police purposes, use has of late years been made. But, by causes which it would take too much room to explain, no other living instrument of this kind was found so well fitted as this Middlesex one to a Lord High Chancellor’s hand.

Note now how well fitted,—“No man can serve two masters,” says Scripture as well as Reason: meaning, by serve, serve well. But, hundreds of years ago, four sorts of judicial masters there were, besides this one, who, if they had not had each of them a fraction of this functionary to serve them for a servant, would have had none.

There are—the King’s Bench, Common Pleas, and Exchequer National Judicatories, having all of them the Sheriffs of all counties at their command; with the Justices of Peace in general sessions throughout the nation; County Judicatories, these—each having no other sheriff than the sheriff of its own county at its command.

In those days, the process of the King’s Judges being not unfrequently withstood by the Barons and Knights his feudatories,—the operations of civil government could no otherwise be carried on than by a sort of guerilla warfare. Commander of the army in each shire, the Earl—Saxonicé Alderman, Latiné Comes, meaning companion of the King, whence Normanicé Comte, Hispanicé Conde, &c.: Lieutenant-General, Anglo-Latine Vice-Comes, Saxonicé Scire-Gereve, (Deputy Commander of the Tertorial Division, thus denominated:) whence, by contraction, Sheriff.

And so, because, so long ago, this miserable makeshift was regarded as necessary,—it must now-a-days, to the exclusion of every appropriate instrument,—now, when it has so long ceased to be necessary,—be continued.

For centuries upon centuries, this Vice-Comes has been a deputy without a principal: the principal (who, when he had existence, was called the Comes, alias the Earl of the County, or say Shire), an imaginary being, without a real “habitation”—without anything but a “name.” For a specimen, but no more than a specimen, of the suffering—of the practical and too real suffering springing out of this theoretical and ideal confusion, see “Petition for Justice, § 14. Results of the Fissure—Groundless Arrests for Debt.” (Vol. V. p. 491.)

2. Secondly, as to the Serjeant-at-Arms. This functionary is a satellite, appointed on each occasion by the Equity Judge himself. How he came by this his formidable title, requires explanation. Once upon a time, some person or other having omitted to do something which by the Judge he had been bid to do,—his Lordship dreamt that a rebellion had been raised, which being admitted, an army became necessary for the suppression of it. Thence came the Chancery writ, styled a “Commission of Rebellion:” by which was meant—not, as in the case of a “Commission of Inquiry,” a commission to make the thing, for the making of which the commission was issued—not a commission to make a rebellion, but a commission to quell one. Commander of the army, or commander and army, all in one, this same Serjeant-at-Arms.

3. Lastly, as to the Sequestrator.a While, during a course of years, for the sake of the profit upon the expense, the Chancellor, with his myrmidons, was making believe to do that which, if so minded, he could have done, with next to no expense and vexation to anybody, in the course of some number of days or hours,—a sort of operation called sequestration required to be performed: and this, like other operations, required operators. Sequestration, the operation: sequestrators, the operators:—in these may be seen the “manipulus furum,” of whom the Serjeant-at-Arms was, in case of necessity, the Thraso.

For the purpose of giving execution and effect to a portion of substantive law,—and, to that end, for the purpose of giving execution and effect to the correspondent judicial mandate issued on the occasion of a demand made on the Judge for his appropriate service,—on that same occasion and to that same purpose, what is requisite is, that, into the hands of the Judge be taken either the subject-matter itself of the demand—namely, the mass of property or other benefit, of what nature soever it be, which is the object of declared desire; or else a person, who for shortness is called a defendant: meaning thereby a person, who, on the occasion in question, for the purpose in question, is assumed to be in possession of this same object, and prepared to defend himself, in that arena, against all endeavours to take the object from him: though the truth is—that, so costly in this field has the war been made, that out of a thousand, not one is there who, how justly soever entitled to the possession, would, if called upon, be able so much as to begin to defend himself in that same field, with any possibility of effectual defence:—say then the defendant, or proposed defendant, himself. But, this same person, or any person—to what end? to what purpose? Except where, the case being a penal one, the punishment appointed is such as requires the body of the individual to be forthcoming for the purpose of being subjected to it, no use is there for the body, but for the purposes of coming at, by that means, the valuable thing itself, which is the object of the desire.

To this end, the Dispatch Court Judge, if, meaning honestly, he has the power, will act according to the circumstances of the individual case. The demandant he has seen and examined, of course, at the very outset of the suit: this being the very operation from which the suit has received its outset. From this examination he will have framed his judgment as to what cource to take, for the purpose of securing, with the minimum of delay, vexation, and expense, to all parties, the eventual rendering of the service demanded; that is to say,—if, in his view, a preponderant probability has place, that the proposed defendant, unless prevented, will convey, out of the reach of the Judge, not only the subject-matter of the service demanded, but his body likewise, by means of which, in case of need, the compliance with the demand might be compelled, he will for this purpose cause hold to be taken—prehension to be made—of things moveable, things immoveable, and body—one, two, or all three, as occasion may require: mindful throughout, on no occasion to produce so much as one atom of evil, more than is necessary for the production of the preponderant good endeavoured to be produced.

[* ]Taking.] 1. By what hands, then, shall they be delivered into it?

2. To the situation of a judicial functionary of the grade of a Judge, a manual operation such as this is not congenial.

3. To the eyes of the Judge thus ousted of jurisdiction, the witnessing of it would be needlessly painful.

4. Not but that, for the wound thus producible, a precedent, or something very near to one, were it needful, might be found.

5. But no such wound is needful.

6. On the part of the subordinates, on whom the duty is here imposed of submitting to the operation, no such vulnerable dignity has place.

7. On this occasion, as on every other, whatever is done, the less the expense, in every shape, at which it is done, the better.

8. As to superordinates, they will know better than in any open and direct way to attempt to throw obstacles in the way of obedience on the part of their subordinates.

9. Here, then, may be seen—benefit maximized, burthen minimized. Turn now to the existing system: there may be seen burthen maximized, benefit minimized.

10. To exhibit, were it even no more than a rough outline, of the several diversifications of the course taken—taken by the existing system in general, and by the Equity branch of it in particular, for the attainment of these two conjunct sinister ends,—would require, for a basis, a sketch of the whole body of judicial procedure; including, in the Equity part of it, the two vast morbid excrescences—the Bankruptcy Courts and Insolvency Courts.

11. This being here impracticable, suffice it to say that it is by the observation of the opposite practice, as carried on under the existing system, and of the enormousness of the mass of evil produced by it, that the several preferences here recommended were suggested.

12. At the head of the mass stands the portion of it produced by the practice by which for the price set by Judges, to every man who can and will pay that price, the liberty of any and every other man is sold;—sold, together with the additional powers of involving in utter ruin men in countless numbers by a known and infallible process,—supposing him so lost to all sense of humanity and shame as to accept of the invitation—still, as well as for ages past, held out to him by English Judges. Such is the practice by which, on the ground of the false assertion of a debt due, to the amount of which there are absolutely no limits, the prehension of the person of a man, and in consequence the destruction of his commercial credit, may be effected: the act of inflicting the suffering not being preceded by any inquiry into the need of it; the need of it—that is to say, for any one of the three above-mentioned purposes of justice. In the practice of no other country, in so flagitious a form (one may venture to say), have depredation and corruption on the part of judges been seen to manifest themselves. For a brief, but to this purpose sufficient history, of the course by which this part of the system has been brought to its present state of perfection, see Petitions for Justice, Device XIV. Groundless Arrest for Debt.*

13. Root of this, as of every other abomination of judge-made and fee-gathering law, the original sin inoculated by it—exclusion of the parties from the presence of the Judge. Necessary not less to the minimization of the burthen to the defendant, than to the maximization of the benefit to the plaintiff, is information obtained by the Judge, as to the circumstances of the parties on both sides, and in particular on the defendant’s, at the very outset of the suit: for, on the state of the pecuniary circumstances of the defendant will depend the means which, for making provision for the execution-securing as well as for the execution-effecting purpose they afford: and, at that stage of the suit, no otherwise than by the word-of-mouth examination of the plaintiff can that same information be obtained:—of the plaintiff himself, or of any such representative of his, whom, according to his condition in life, the necessity of the case has on that occasion substituted or added to him.a

14. Of the thus all-comprehensive and hitherto unexampled extent here proposed to be given to the power of prehension, one natural enough consequence is—that, to a first glance, not only augmentation of the Judge’s power should present itself as a principal object of it, but, moreover, in a degree more or less considerable, detriment to the interest of the defendant, as the effect. On a closer inspection, however, it will be seen, that, by the variety of choice thus afforded, effectual service is rendered to the defendant’s, no less than to the plaintiff’s side:—whereas, under the existing system, burthensome to an outrageous amount as is the prehension actually performed, still more outrageously burthensome is the power, as above given, of performing it:—at any rate, by the option of substituting to a more a less burthensome mode of operation, no mischievous addition to power is effected: and, with not less solicitude has been looked out for—the mode of operation which will be least burthensome to the defendant’s, than that which will be most beneficial to the plaintiff’s, side.

15. As to security,—for the several modes in which, for the several above-mentioned purposes, it may be given, and the occasions on which it may require to be given, see Section XVII. Prehensor.

16. Minute indeed is the proportion, which the imagination of a non-law-learned reader could present him with, of the immense mass of expense and delay produced by the Equity practice in relation to this subject, with the correspondent probability of misdecision and unjust non-decision: in a word—of the imaginary rule of action thus feigned, the efficiency to all mischievous, mounted on inefficiency to all good purposes. Under the head of Sequestration, six pages in Madox’s Chancery, II. 20, 4to, 210, will suffice to exhibit to him a miniature picture of one part of this mountain of predatory abuse.

17. Suggestions have, of late days, been brought forward, having for their subject-matter imprisonment for debt, considered in the abstract; and for their object—on the face of them, if not at bottom—the abolition of imprisonment, to the whole of the length to which it can, on that same occasion, be employed. Supposing this to be the proposition, with as much reason might be proposed abolition of punishment on every occasion—of punishment in every other form, on the occasion of transgression in every other form. Without the discernment to see that exceptions are necessary, or without patience to attend to them—thus does sentimentality, regardless of the dictates of the greatest-happiness principle, apply itself but too often to the establishment of general and sweeping rules.

[* ]1. The topic of remedies being now, so far as regards the present purpose, at a close,—turn now to the existing system. Of the four species of remedies,—the originally-preventive and the suppressive are not here in question: remain the satisfactive, in which is included the compensative, and the punitive, or say the subsequentially preventive. In relation to these two, what then does the existing system? Of these two, for wrong in no shape does it so much as propose to itself to make provision of more than one. Sorts of shops, of which Judge & Co. are the shopkeepers, two: commodities sold, in one of them, a chance, such as it is, for money, which, when given in the name of compensation for wrong, they call damages; commodity sold in the other sort, a chance for the benefit produced by punishment; the enjoyment, such as it is, reaped by one man, from the contemplation of the suffering produced by punishment inflicted on another:—say, for shortness, the pleasure of revenge, or vengeance: and, in one of the shops, moreover,—namely, the King’s-Bench shop,—you may call for damages or punishment, which you will; but (what seems whimsical enough), both together, even at that shop, where both are upon sale together, you cannot have. True it is—that while, in consequence of your asking for it, they serve out to you a quantity of the commodity you ask for—namely, the chance for damages, they serve out to you along with it, a quantity more or less considerable, of that other commodity which you have not asked for. But, no thanks to them. They don’t know that they do so: they don’t know what it is they are doing.

2. It is not by them that the commodity you did not, is added to the commodity you did, ask for. Not by their hands is this addition made, but by the hands of Nature. It sticks on without their perceiving it, and thus it is that you come by it. Go to a plumber, and buy a quantity of lead: buying the lead, you buy the chance of a quantity of silver in it; but if there really be any, it is more than the plumber knows of: it was left in, to save the expense of taking it out; and, in the case of the King’s-Bench shop, where, under the name of justice, justice or injustice is sold, as it may happen,—whether the quantity of the suffering, which thus sticks to the damages, when actually served out, be sufficient for the purpose of the subsequentially-preventive remedy, is matter of accident. They know as little about it, as the plumber who serves out the silver with the lead, knows what use will be made of either: they know about the matter, as little as they care.

3. A natural question here, is—seeing this—that a shop is always open, where the two commodities may be had together, for the price of one,—the so much less valuable, along with the more valuable, and without any extra charge for it—how is it that, to any of the shops any man goes and gives his money for the less valuable article alone?

4. The answer is—that the difference depends upon evidence: upon the source, and thence the reputed quality, of the evidence which the party wronged happens to have at his command. For, according to the rules of the several shops, along with your money, you must, for the most part, for form’s sake, have at your command and exhibit a quantity of evidence: at any rate a something which, without being evidence, is by them received as and for evidence. The King’s-Bench shop has, as above intimated, two sides—the civil side and the penal side: on the civil side is sold the chance for damages: and there the evidence they insist upon is of a particular sort, regarded as a superior sort;a and if (such is your misfortune) you have none of this sort to produce, you must either go without remedy, or betake yourself to the other side: in this case, all you can have for your money is the pleasure of revenge; and for that, the shop you must apply to is either the penal side of that same King’s-Bench shop, or some other shop, where they have nothing better to sell than this same pleasure of revenge.b

5. But, of this commodity,—the chance of which is thus sold on the penal side, and is worth so little, and to a man who believes in the same creed as those Judges profess to believe in, worth absolutely nothing,—the price, though so high as to be out of the reach of the vast majority of the people, is still abundantly less extortious and unreasonable than that of the chance for compensation.

6. Under the existing system, “no wrong is there that has not its remedy:” such is the aphorism delivered by Blackstone, and ready to be repeated by all those in whose minds law learning has extinguished the sense of shame. “No wrong is there that has its remedy:” this aphorism is not indeed exactly true, but it is beyond comparison nearer to the being so than its above-named opposite.

7. That which, on this occasion, was undertaken for, is an indication given of the inadequacy of the provision made, under the existing system, by Judge-made law, for remedy to wrong in the several shapes of which it is susceptible, together with some general intimation of the causes by which such its worthlessness has been produced: of two of these causes, such general intimation has here been afforded: namely, the absurdity of not so much as attempting to administer any more than one of two remedies, where the nature of the case admits of and requires the application of both; and the still more flagrant absurdity of shutting out or letting in the one and the same evidence,—that is to say, the testimony of one and the same man,—according as it is the one sort of remedy or the other that, if admitted, he would apply for. As to what regards this latter absurdity, further particulars belong not to this place; but they may be found in ample abundance in the Rationale of Evidence.

[† ]1. Note here, that, in several of the above articles, may be seen so many specimens of the matter of the proposed Penal Code, Book or Part I. Offences collectively considered: the remainder of which, namely, Part II., is contained under the head of Offences severally considered.

2. In the accompanying Table, are exhibited the contents of this first part, in and by the titles of the several Chapters: for the present purpose, to the words employed in the original Table, are added here and there a few words of explanation, Annexed to each title is proposed to be, if time and space admit,—a reference to that article of the present section, which presents to view a sample of the contents of it.a

3. Not altogether uninstructive (it is hoped) will be the comparison, if made, of the here-exhibited matter and titles of the proposed Code—with the matters and titles of any work by which, under the existing system, the Penal branch of law is undertaken to be exhibited, and exhibited accordingly, as it is, or, as it is said to be: Law—as it is, namely, Statute law, or say Parliament-made law: Law as it is said to be, namely, Fictitious Law, or say Common Law, or Judgemade Law. Instructive, in no small degree, the comparison—between the anxious and continued regard paid to human feelings throughout the one; and the utter disregard throughout the other:—to human feelings, that is to say—to pain and pleasure—(for the several diversifications of which, in the little work intitled Table of Springs of Action, determinate denominations have been found and employed)—disregard, in a word, for everything but the sinister interest of the framers, contemplated through the medium of the technical words and phrases of which the gallimautrey is composed.

4. In Book or Part II., containing Offences severally considered—under the head of each offence, application is made, of the matter of the greatest part of Part I.: application, that is to say, either by quotation or reference.

5. Of the penal matter employed on the present occasion, no part is there, which is not in and by that same proposed Penal Code, employed likewise and applied on other occasions; but in the ulterior and more extensive use so made, no sufficient reason was seen for omitting, on the present occasion, to make application of it to the present particular use. Being, however, necessarily modified, and in many instances more or less changed, in subserviency to the present special purpose, the several articles are not to be considered as exact quotations from the work at large. By the being thus presented to view as having been applied to a more extensive purpose, the matter will not (it is believed) be found rendered the less applicable to the present purpose.

6. But for the determined withholding of encouragement in every shape from above,—by the mere assurance of appropriate attention, effective encouragement would have been administered, and that same Penal Code would, many years ago, have made its appearance in a complete state.

7. On a late occasion, forgery considered in its application to no other modification of the offence than that by which property is affected, furnished of itself matter for a large folio: and of the ground which, as may be seen here, no more than a part of one single page sufficed to cover, no more than a part was covered by the hundreds of pages of that same folio volume. What, no that occasion as on others, was not considered, is—that forgery, in the whole of its extent, is but one modification of the art of deception;—and that, of all the offences, actual and possible, in the calendar, there is not one, in and to which this baneful art is not capable of being rendered instrumental and suxiliary. Constructed on the condensed plan here exemplified, a Generally-applying Code (so called in contradistinction to a System of Particular Codes, applying to so many different classes of persons)—or say, for shortness, a General Code—may be composed of no more than one or two octavo volumes, and yet be perfect: constructed upon that present pursued plan, it may be composed of so many hundreds, or as many thousand volumes, and still be imperfect. The Penal Code at large is in preparation and considerable forwardness. But, as already intimated, not exactly the same as those here employed, are the terms and method there employed. By the application here made of the principles,—abridgment, and alteration, in other respects, were necessitated.

[* ]1. By the Equity Courts, from first to last, power, legislative in effect, though in so inconvenient a form, has been exercised:—to wit, by the establishment of rules of action, in the establishment of which the King in Parliament—the only supreme legislative authority recognised as such—has borne no part.

2. Not content with this, they have of late years, declaredly, and without disguise, overruled acts of Parliament to a vast extent. Witness the statute of claims, the statute of frauds, the statute for affording protection against undocketed judgments, and the register acts. See Tyrrell, 306. Repealed is the word this most enlightened and beneficently-intentioned professional and official lawyer employs, on this occasion, without scruple. In regard to tithes,—“everything has been presumed,” say the Real Property Commissioners, Report I. p. 64, “to disturb enjoyment, and stir up controversy.” And again, p. 68, “the frequent instances, in which, by technical rules, never understood but by lawyers, the intention of the testator, which Courts always profess to observe, is completely defeated, are a reproach to our law.”

3. The circumstances in which, on the part of the legislature, this anti-constitutional insubordination, confusion, anarchy, and uncertainty as to all rights and obligations, have had their cause,—apply not to this case alone, but to Judge-made law throughout the whole of its expanse: and have accordingly, on many an occasion, been brought to view elsewhere.

4. States of the mind, to which these evils may be referred, are—partly indolence and negligence,—partly sinister interest. Legislators, regarding themselves as having a community of sinister interest with Judge & Co., give themselves thus, by connivance, the advantage of establishing, by the hands of Judges, in an indirect and unobserved manner, and without drawing the attention of the people at large upon the subject,—many an arrangement, which self-regarding prudence might have prevented their attempting to establish by their own hands.

5. Resistance to any arrangement to the effect thus proposed, may accordingly, without danger of injustice or error, be considered and stated as conclusive evidence of a wish and endeavour to give strength and extension to absolute, under the mask of limited, power, in the hands of the ruling one, and sub-ruling or co-ruling few.

6. Any one of a number of words would,—if that same arbitrary power were not obstructed, as it is, by the correspondent and opposite arbitrary power of relatively ignorant men in the situation of jurymen,—suffice to give to these Judges an unlimited power of virtual legislation.

7. In their hands, the word libel would of itself suffice to place the press on the same footing as that which it is on in Spain and Portugal.

8. The word conspiracy has for some time been making its progress over the field of penal law, and is capable of converting into a crime any species of act, on account of which, it is the will, determined by the sinister interest or interest-begotten prejudice, of the Judge, to inflict punishment on any individual by whom that same act, how completely soever innoxious, has ever been done.

9. No wonder that it should be more agreeable to Judges to see the manufacture of the rule of action in their own hands, than in those of the legislature: to Judges, and to all members of the legislature, who, in their own view of the matter, are, as above, linked with Judge & Co. by the tie of a community of sinister interest.

10. As a material and local field is covered by webs, spun out of the bowels of spiders,—so is the logical field of law covered with nets, spun out of the brains of Judges—and more particularly of English Judges.

11. Thus it is, that over so vast a portion of the whole extent of the rule of action, the mind of the Judge is either the best or the worst source in which it can originate: the best, when untainted with, or purged from, the impurity infused into the situation by the fee-gathering system; the worst, when infected and polluted by that all-corrupting contagion.

12. From these considerations has been deduced, a plan for preserving the rule of action,—when brought from the state of Judge-made law, into the state of a code,—from being covered over with a fresh growth of that same imaginary and spurious law.

13. To the general propositions laid down by Judges, in the delivery of their judgments,—as well as to the tenor of those judgments themselves,—it would be made matter of duty, to every Judge, as often as he saw, in the text of the Code, a passage presenting a demand for amendment—whether defalcative, additive, or substitutive—to apply a proposed amendment, expressed in the very words, in which, if approved, it would stand as part of the act to which it applies itself: exactly in the same way as that in which an amendment is applied in and by a legislative body: in which case,—in so far as, by the only legitimate legislature approved,—it would be aggregated to, and become part and parcel of the body of the Code. In relation to this matter may be seen, in terminis, a string of provisions in the proposed Constitutional Code, when published: to wit, at Ch. XII. Judiciary Collectively—§ 20, Judges’ eventually-emendative function.

14. By so simple an expedient, and with such entire certainty, will be accomplished—that state of things, the accomplishment of which, in the hope and endeavour to prevent it, men in such numbers have been so forward to declare impossible.a

[* ]Necessary.] 1. Of the necessity of all this precaution, the persuasion has for its ground the observation made of the rooted habit of insubordination, which, under matchless constitution, has place, on the part of the Judges of the Superior Courts, in relation to the legislature.

2. In two distinguishable shapes does this insubordination show itself: not only muffled up in a covering of technical jargon, as in the case of a decision on grounds foreign to the merits (as to which see Petitions for Justice, V. 476); but, even in an open way, by decisions, on the occasion of which, disobedience to Acts of Parliament is explicitly and undisguisedly avowed.

3. In the practice of the Earl of Eldon, when Chancellor, an instance of it may be seen in the pamphlet entitled “Indications respecting Lord Eldon,”a (V. 348.) No want on the part of the learned fraternity of lawyers will there be of exertion to frustrate the object of this act. Their endeavours must be anticipated and provided against. For further example of what is capable of being done in this way, behold a case which happened to fall within the cognizance of the author of these pages. Needful for a public purpose was a piece of land to be bought by government. Attorney-general, the now Earl of Eldon: Solicitor-general, the now Lord Redesdale. Under their joint care was drawn an instrument necessary to the obtaining possession of the land: reluctance on the part of an occupier was necessary to be provided against, and power of seizure in a certain event provided. In a certain case, yes: but in what case? In the case of “refusal,” said the instrument: in that case and no other. What was the consequence? That an occupant had but to sit silent and inactive, forbearing to signify any refusal; and there the business would have ended, unless King, Lords, and Commons, had been set to work afresh, to set it a-going again. After much entreaty, with no small reluctance, these pre-eminently learned persons were induced to make the requisite change. Of this inaptitude of expression, where are we to look for the cause? To inaptitude in a moral shape, or to inaptitude in an intellectual shape? In a moral shape, in one; in an intellectual shape, in both—was the hypothesis of one who was a sufferer by the delay: on the part of both, the indescribable and continually-declared horror, of all change is matter of notoriety:—horror of all change;—in other words, anxiety to preserve from diminution the aggregate mass of human suffering, leaving it to receive increase from the undisturbed action of all those causes, by which it has been raised to the height at which it stands. These things considered, figure to himself who can, the agonies into which they will be thrown by the prospect of a Dispatch Court!

4. By the hands of Judges the ruling and influential few are thus enabled to serve their own particular and sinister interest, at the expense of the interest of the subject-many, in an oblique and unperceived course, in cases in which shame or even fear would prevent them from doing so in a direct and avowed way.

5. The emblem of the cat’s paw is thus in some sort realized: in some sort,—but with this difference: in the fable, it was not without reluctance, nor without smart, that the quadruped lent its hand: whereas in the case of the bipeds, no smart is ever felt, nor consequently any reluctance: in the stock of the ready-roasted and tempting chesnuts they got their full share.

6. This community—of feeling, and sinister interest, and conduct—can never be too frequently brought into nor too distinctly and conspicuously held up to view.

[† ]1. As to the check thus applied to the power of the Judge,—in the eyes of corruptionists, and all other persons, if any there are, who are wedded to the existing system, far from affording an answer to any objection on the score of the magnitude of the power, it will operate as an additional objection: forasmuch as, in so far as it has this effect, it establishes what in such eyes will, of course, be a bad precedent; having for its tendency, the reconciling the public mind to the idea of subjecting to eventual punishment, and thereby to present and actual controul, those who, in the existing state of things, are not by law subject, in effect, to punishment or controul in any shape.

2. The greater the power a man has of doing wrong, the less likely is he to do wrong;—such is the vulgar theory; till at last, when you come to the highest pinnacle in the temple of power, there you behold a being perched upon it who is under an absolute personal incapacity of doing wrong in any shape—a being who could not do wrong, were he to labour at it with all his might:—and, under matchless constitution, upon this assumption is government founded.

3. The King is impeccable; the House of Lords is impeccable; the House of Commons is impeccable: and yet there are not three impeccable, but one impeccable—the Parliament. The House of Lords is legion; the House of Commons is legion; but these are legions, not of unclean, but of the very cleanest spirits. Whosoever would find favour in their sight must thus think, or pretend to think, of the constituted authorities. Of unintentional error, a successor of each official or other influential person may be susceptible; of intentional error, of evil-consciousness, not: neither of the one nor the other, the actual incumbent.

4. Intentional error or misconduct in any shape, especially in that shape in which it has place every day on the part of all,—that is to say, departure from the law of veracity and sincerity,—is universally held a good ground for a man’s subjecting himself to the risk of being put to death by a disputant, for the chance and hope of putting to death that same disputant.

5. Neither on this occasion, nor on any other, should the utter impunity secured to Judges under the existing system be ever out of mind. Urged by remorse, or any other less difficultly supposable cause, should an English Judge court punishment, his prayer would not be granted. Nemo auditur, perire volens—is among the maxims of Rome-bred law: in English law, it would not be cited, but the benefit of it would be granted.

6. If in large proportion men were not found silly enough to give credence to absurdities in the shape above pointed out, men would not in so large a proportion, not to say universally, be found possessed of the effrontery necessary to the giving utterance to them. But forasmuch as every man perceives that it would be for his benefit to be regarded as possessor of absolute perfection, or something little short of it, and his pretensions would find no opponent in any other man whose pretensions to it he does not oppose,—hence it is that by common consent—by an agreement, not the less effectual for being tacit,—every such man gives false evidence in favour of other, and by this evidence the unreflecting multitude of people without doors are, in but too large proportion, deceived and dealt with accordingly.

7. Thus would the check provided threaten them with the prospect of seeing themselves divested of the power of exercising depredation and oppression without stint: that power which so lately, by the influence of Lord Eldon, Lord Tenterden, and Mr. Peel, obtained at the hands of Parliament, in addition to those motives which can never be wanting: the means of heaping affliction on affliction, on a class of men distinguished from all others by the distress under which they were labouring: namely, by the power of imposing on them taxes without stint; this, for the purpose, and with the effect, of putting the money into the pockets of the learned collectors.—See Indications, &c. V. 348.

8. For, in one of the ways or modes in which subordination is established, in relation to this newly-invented sort of Judge, would—not only the Chief Justices of the Common-Law Courts, but the Lord High Chancellor himself, be unavoidably placed in a state of subordination.a

9. Manifest, it is true, to the eyes of the Chief Justice of the King’s Bench could not but be the state of subordination in which, in the more direct and conspicuous mode, the newly invented functionary, placed, as above, over his head, will be reciprocally placed under him. Still, by what he gained in this way, far from adequate would seem to him the compensation for what he would lose in that other way.

10. For, in no instance could the old established dignitary inflict punishment or pronounce sentence on conviction on the new intruder, without presenting to the imagination of the people at large, a scene, in which he himself would be acting the principal character, while undergoing that same humiliation.

11. Consequence, of course,—from the great Westminster-Hall volcano, now at least, if not before, a volley of explosions:—explosions of learned gas from all quarters.

i. “All this immense mass of power! a mass so absolutely unprecedented! and to whom?—to such an upstart creature of the fancy, as this imagined Judge:—power, over every member of the community, the King alone excepted: power, over everybody, even to the purpose of punishment: power, over the head of the law!—power, and for the declared purpose of superseding his authority!—Constitution subverted! all good order—order itself destroyed, and confusion substituted.

• “Blush! blush, thou sun! Start back, thou rapid ocean!
• Earth! mountains! valleys! all commixing crumble!
• And into chaos pulverize the world!
• For Grimgribberian has received a blow!
• And Chrononhotonthologos shall die!”

ii. “And the inconsistency! the monstrous inconsistency! The thus constituted supreme dignitary, to whom this immense and unprecedented mass of power is given, made to answer to interrogatories! subjected to a treatment, to which the Common Law, in its matchless humanity, suffers not the vilest criminal to be exposed!” Thus far for the ears of the lay-agents.

iii. Then, in a whisper, to learned brethren—“What a precedent this! At this rate, where is the criminal that will escape?—at this rate, a man really guilty will have no chance! He will confess at once!—all our learning, all our ingenuity, all our eloquence, will be of no use to him! Think of the learned pockets!—think of our pockets!—think of the vacuum this will make in them! Instead of coming to us, as at present, his money, if he has any, will go to the party he has wronged! What can be more contrary to the very first principles of justice, to every principle of justice?”

iv. And then there is the ex-officio information! Look at these reformists. At one time thus crying out against it; now they are giving employment to it!

v. Then there is the Chief Justice of the King’s Bench enabled now (and as to his willingness, can it at any time be doubted?) to wreak his vengeance on the intruder, by whose upstart power, judiciary authority is in all its established shapes laid low. And to enable him to give himself this regale, what is there wanting, but an invitation from Mr. Attorney-General?

vi. Then sits a jury. But, with the united eloquence of the Lord Chief Justice and the Attorney-General, the mouth-piece of the Crown, thus enlisted together in support of a cause so much their own, where is the Jury that will be able to stand against them? What word can possibly present itself to their tongues other than the word Guilty?

12. Tantalizing, in a sad degree, will thus be the situation of a Chief Justice of the King’s Bench. No otherwise could he root out the effectually responsible power of the Dispatch Court Judge, than on condition of thus undermining his own irresponsible and arbitrary power, that power of maleficence without stint, the loss of which is to every possessor of it, naturally so intolerable.

13. Think of a Lord Tenterden, thunderbolt in hand; and, opposite to and under him, a Sir James Scarlett, calling upon him to hurl it at the head of the devoted Salmoneus!

14. So much for learned objections. Now, at the sound of plain sense, behold them vanish. Each taken separately,—strong, it must be confessed, are the two antagonizing powers. Put them together, and, like the salt with which our food is seasoned, the elements they are composed of put off their corrosive nature, and become mild and salutary.

15. Out of the two dangers is formed security. The old established functionaries will not suffer anything;—and as little will the new created one.

16. As to subjection to interrogation, what danger to innocence is it pregnant with? what consequence, worse than that of clearing it of any imputation that may have been cast upon it?

17. From what source did these objections ever spring, other than that of a wish to afford to guilt, in every shape, an encouraging chance of escape?

18. As to the two Giants—the Chief Justice and the Attorney-General, grim as they are on all occasions, on the present occasion behold them thus rendered not only less grim, but motionless: Motionless! Yea, even as Gog and Magog. Without a call from the Attorney-General, the Lord Chief Justice of the King’s Bench cannot stir; without an order from the First Lord of the Treasury, the Attorney-General cannot, or at least will not, stir.

19. But, suppose the order received. Comes then the matter before a Jury: and, if there be any occasion, on which, in the multitude of these counsellors, there is a safety, this surely is of the number. Say that, on ordinary occasions, when Government prosecutes, they are but too apt to cast off the responsibility from their own shoulders upon those of my Lord Judge, and economizing thought as they would money, say at once Guilty, to save trouble. On an occasion such as this, and this so unextraordinary a one, little apprehension of any such promptitude need assuredly have place.

20. Thus blind were they, for example, when—in pursuance of the standing conspiracy against the liberty of the press—one of the machinations of which was and is, the converting all history into an instrument of delusion by suppression of all facts and comments, by which sin in any shape might be imputed to any one of Blackstone’s Gods upon earth,—the body of the Editor of a Weekly paper was, at the command of Lord Tenterden, given up to him to be consigned to a two years’ imprisonment, for daring to hold up the character of George the Third in an unfavourable point of view.

21. In ordinary cases, true it is, instances of such blindness have in all times been in sad abundance. But the present case is an extraordinary one. To the necessity of justice to human happiness,—and to the hatred of it in the breasts of English Judges,—the eyes of the public, even of that public of which Jurymen are composed, are at length beginning to open themselves. Sir James Scarlett might cry aloud, and Lord Tenterden spare not,—a Jury, after hearing, from the lips of the Dispatch Court Judge, justice and common sense substituted for the first time to pickpocket absurdity and nonsense, would pause (as the phrase is) before they sacrificed the author of so much good to the vengeance of the opposers of it.

[a]Sequestration and Sequestrator are terms of Rome-bred law: employed and applied to use, in both branches, spiritual as well as temporal, of that same important rule of action and source of judicature.

[*]Assizes.] True it is—that, in that case, the matter of the record being, nearly the whole of it, in its nature useless, no use is made of it: insomuch that, were the same quantity of blank paper sent into the country and back again, the service thereby rendered to justice would not be less than that which is rendered by the transference and retransference of the learning-fraught parchments. But, in Equity procedure, it is with the elicitation of the evidence that the suit commences; this is, in every case, the first operation performed: that is to say, the commencement of that same process; whatsoever be the number of years that may have been made to elapse before the conclusion of it, instead of the minutes—yes, frequently the minutes—that would have sufficed for it.

[a]Examples:—In case of mental imbecility, by reason of early minority, or insanity, the appropriate Guardian: in case of absence in foreign parts, the Agent: in case of a body corporate, a Deputy, in the person of a member, or an appropriate functionary.

[a]For example, if, in the King’s Bench shop, they have got from you all the money you can command, so that you are unable to pay for this or that instrument the exhibition of which they have rendered necessary to the carrying on of the suit on your side,—in this case, they say that you hold them in contempt, as per note to art. 48; and this contempt they consider as being conclusive evidence of your being in the wrong, and deal by you accordingly; of your being in the wrong, on whichsoever side of the suit you are—whether the plaintiff’s or the defendant’s.

[b]For example, the Justice of the Peace Court, called the General Sessions, or Quarter-Sessions. absurdity of not so much as attempting to administer any more than one of two remedies, where the nature of the case admits of and requires the application of both; and the still more flagrant absurdity of shutting out or letting in the one and the same evidence,—that is to say, the testimony of one and the same man,—according as it is the one sort of remedy or the other that, if admitted, he would apply for. As to what regards this latter absurdity, further particulars belong not to thisplace; but they may be found in ample abundance in the Rationale of Evidence.

[a]The Table thus referred to, does not appear to have been prepared by the author: it has not been found among his MSS.—Ed.

[a]Imagery and allusion are helpers to memory. Image the first: scarred thus would be the neck of the Hydra. Image the second: cleared off as by an all-consuming fire,—cleared off never to repullulate—would be the jungle, in which so many wolves in sheep’s clothing—inhabitants and lords of the soil, lie in wait for the passenger.Strongly perceptible is the want of an arrangement of this sort, in all the existing bodies of law, the arrangement and language of which have their origin in Rome-bred law; more particularly in Bonaparte’s Code: and from this deficiency has been deduced an argument against Codification—against the applying to its use, the only instrument, by which men can be preserved from being deprived of the benefit of all their rights, and being subjected to all the established punishments, for want of this saving knowledge, the acquisition of which is, by all supporters of Judge-made law, purposely endeavoured to be rendered impossible.

[a]See Blackstone III. ch. 25. Every court inferior in power to Westminster-Hall Court is treated somewhat cavalierly. It is called “a base Court,” and that imputed to it is not “Error” but “False Judgment.”So in III. ch. 23, p. 372, the case of a Bill of Exception: in which case the subject-matter of virtual appeal is the opinion given by the Judge for the direction of the Jury. Note, if worth while, the humiliating circumstance.

[a]As to the different modes of subordination, see Introduction to Morals and Legislation, Chap. XVIII. Division of Offences (l. 96.)