Front Page Titles (by Subject) SECTION IX.: GROUNDS OF DECISION FOR THE DISPATCH COURT JUDGE. - The Works of Jeremy Bentham, vol. 3
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SECTION IX.: GROUNDS OF DECISION FOR THE DISPATCH COURT JUDGE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 3 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 3.
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GROUNDS OF DECISION FOR THE DISPATCH COURT JUDGE.
Art. 1. Of every suit, the subject-matter of contestation is either—1. Matter of law; 2. Matter of fact; or, 3. Both together.
Art. 2. So far as regards the matter of law, every decision of the Dispatch Court Judge will have for its ground the non-disappointment principle,—or say, the disappointment-minimizing, or expectation-fulfilling, principle.*
Art. 3. Correspondent to the disappointment-minimizing principle is the following rule, to which it makes reference. On every occasion, in so far as benefit in any shape is the subject-matter of dispute, the question being, to which of a number of parties the possession, present or future, in whole or in part, shall be adjudged,—the manner in which for that purpose disposition will be made of it, is that by which, among all the interessees taken together, least disappointment will be produced.†
Art. 4. For the purpose of determining, as to the arrangement in question, whether it would be in contrariety to the non-disappointment principle, the Judge will consider within himself, whether, if the case were his own, if that same arrangement took place, any such uneasy sensation as that expressed by the word disappointment would thereby have been produced in his breast.
Art. 5. For the purpose of determining, as between any two arrangements, which of them would be most, which least, conformable to the non-disappointment principle, the Judge will consider within himself, by which of the two the greatest, by which the least, pain of disappointment would be produced, as above, in his breast.
Art. 6. For the purpose of determining the several arrangements which the greatest-happiness principle requires to be established in the several parts of the field of law, various other subordinate principles will have to be employed. But this is the only one which by his own authority the Equity Dispatch Court Judge can, consistently with that same all-ruling and master principle, make application of; for the applications made of the several others respectively, fresh enactments will be requisite and necessary.
Art. 7. To no decision or rule in force, or supposed so to be, in any other judicatory, at the time when the question comes before him for decision,—to no practice or dictum of any such judicatory,—will the Dispatch Court Judge pay any regard. Referring to this article, he will reprimand and stop from proceeding in this course any person by whom in argument any such irrelevant and inapplicable matter shall have been introduced.*
Art. 7*. Reasons, these:—
i. Be the arrangement what it may, by whomsoever it is declared to be contrary to every principle of justice, or contrary to the first principles of justice, or contrary to justice, it is thereby acknowledged to be unfit to have place.
ii. Next in importance to the rule which prescribes maximization of happiness on the part of interessees, is the rule which prescribes minimization of disappointment on their part.
iii. Conformable to the non-disappointment principle, any such rule or decision as above would be useless: unconformable, it would be maleficent.
iv. Consistent with one another are all arrangements rightly deduced from the non-disappointment principle: completely inconsistent with one another are many of the rules and decisions listened and conformed to by the existing Equity Courts.
v. Not more hostile to the rules and decisions of the existing Equity Courts can be any arrangements deduced from the non-disappointment principle, than are to one another many of the existing rules and decisions of those same Courts. Witness those pronounced on the subject of last wills.†
vi. Not worse nor otherwise dealt with will thus be the rules and decisions of the existing Equity Courts by the Equity Dispatch Court, than by those same Equity Courts, without any the least reserve, are those of the several Common-Law Courts and those of the several Ecclesiastical Courts throughout a great part of the extent of the field of jurisdiction occupied by these same Equity Courts. If it is, or ever was fit, that the rules of one Court should, by another Court established in a dark age, be overruled, why not by one established in a more enlightened as well as in a less enlightened age?
vii.Ex post facto arrangements, as well as contrary to the non-disappointment principle, are both those made by the existing Equity Courts, and all those that are grounded on the Judge-made and so-called unwritten law by the Common-Law Courts, and the Ecclesiastical-Law Courts, and Admiralty Courts: but most scandalously inconsistent with that exclusively defensible principle—the non-disappointment principle—are the rules and decisions of the existing Equity Courts; as well as with the profession included in the import of the term Equity: intimation being thereby meant to be conveyed of a better sort of justice.
viii. Contrary to acts of Parliament are various of the rules and decisions, application of which is made by the existing Equity Courts: witness those on the subject of the registration of deeds.
ix. Avowedly in contrariety to the enactments of the Legislature, may be seen rules and decisions of the Equity Courts: witness the instances brought to view in the tract intituled “Indications respecting Lord Eldon,” in the miscellany intituled “Official Aptitude Maximized—Expense Minimized.” (V. 348.)
x. By the exclusion put upon all mention of the rules and decisions of the existing Equity Courts, saved will be the prodigious quantity of time and expense employed in the reference to them in the existing practice.
Art. 8. Of interpretation in cases of doubt, applied to post-obituary dispositions,—principles applicable, these:—
i.Non-disappointment, or say disappointment-preventing or minimizing principle.
ii. Where and in so far as this principle has no application, the benefit-maximizing principle.
iii. When neither the disappointment-minimizing nor the benefit-maximizing principle are applicable, the lot-employing principle;—rather than by litiscontestation applying the money, part of it, to the use of lawyers in sheer waste: for example, in the scribbling of useless writings, or partly in travelling.
iv. In the first instance,—i. e. antecedently to application made of the benefit-maximizing principle, apply the lot-employing principle, as being the simplest in its operation, and saving the property from being wasted in the purchase of lawyers’ service, useless witnesses, and journeys of evidence-holders: this done, then the Judge will determine whether the inequalities of fortune on the part of co-claimants are sufficiently great to warrant the application of the benefit-maximizing principle.
v. In cases in which no one of the above-mentioned principles is applicable, give the matter in dispute to government for the benefit of the whole community.
vi. Determine to what degree of remoteness in relationship, expectation of post-obituary acquisition shall be considered as extending: and this in the two several cases of existence and non-existence of amicable intercourse betwixt the defunct and the living:
1. Means of simplification, or say simplicity-effecting arrangements, proposable as aplicable to post-obituary dispositions:—
i. Applying to the subject-matter of property—
Abolition of the distinction between real and personal property.
ii. Applying to the judicatories having cognizance of contestation in relation to those same subject-matters of property—
Abolition of all sorts of judicatories except one: giving to one and the same sort of judicatory (exceptions excepted) jurisdiction in all sorts of cases.
2. An example this, of the distribution capable of being made of the subject-matter of legal arrangements for the purpose of co-operation in codification.*
3. Note, in this point of view, that of post-obituary and introvival, or say intervival disposition, the subject-matter is or may be the same: namely (exceptions excepted,) the aggregate mass of the objects of general desire, including the matter of wealth in all its ramifications.
vii. Modes of division in cases in which no ground can be found for giving the subject-matter in question to one of two contending parties, to the exclusion of the other, these:—
1. Division into two equal shares,—the assumption being, that the right does belong either to the one or to the other beyond doubt, no third person having any ground of title to it.
2. Lot, without division;—according to the result of the lottery, the subject-matter going in totality either to the one or the other.
Of these two, the mode of division seems the preferable one. Ground of this opinion, this:—what cannot but be admitted is, that in the breast of each one of the two competitors, the pain of disappointment cannot fail to have place. On the other hand, what is supposed and assumed to be true is, that the sum of the pain in the case of division will not be so great as the sum of the pain in the case of non-division; and conversely, the sum of the pleasure produced in the case of division will be greater than the sum of the pain in case of non-division.†
[* ]Non-disappointment principle.] 1. By means of the non-disappointment principle,—by this means and no other, can any determinate import be annexed to the locution vested rights: take away from it this import, suppose this import not to belong to it, none remains. In case of a right being taken away from a man, if the attributive vested be attached to it, what is thereby meant to be asserted is—that the pain of disappointment thereby produced in his instance is greater than would be produced by the loss of that same right if the attributive vested were not with propriety applicable to it.
[† ]Thus it is, that, throughout the whole of the Pannomion, or say all-comprehensive body of law, to which the presentproposed Bill belongs, the arrangement made is deduced from the consideration of the quantities of pain and pleasure likely to be produced by it,—or say, from its effects on the happiness of all persons interested, or (as the familiar phrase has it) on human feelings. Void of all claim to regard on the part of any rational mind is every subject-matter of consideration on any other ground than that of its influence on the feelings of some sensitive being.
[* ]In Constitutional Code, Ch. XII. Judiciary Collectively, § 20, Judges’ eventually-emendative function, provision is made for the continued amendment of the law, as often as the demand for alteration manifests itself, by the insertion of proposed enactments certified to Parliament by the Judge in terminis:—the insertion to be made by an appropriate functionary in course, unless stopped by motion made in one or other House of Parliament. Of the effect of this power, an experimental exhibition might by the Dispatch Court Judge be made.
[† ]When the property is to a certain degree considerable, any dishonest person in the situation of executor may, under the invitation given him by the existing system, make a sure profit. Of the whole number of claimants, if there be but some one whom he can procure to join with him in this scheme of iniquity, this claimant commences against the executor a Bill in Equity: whereupon the whole mass, how large soever, of the property, is during the continuance of the suit locked up in the hands of the executor, by whom the interest of it is put into his own pocket. This I have been assured by professional men, is a known and customary practice: in this case a sort of divorce has place, between the sinister interest in respect of delay and the sinister interest in respect of expense: by the delay, sinister interest is increased; by the expense, diminished.
[* ]The author appears, from a note, to have had in view other principles to come in between the above, but has left this portion uncompleted: reference being made to some other work on Legacies, as a source from which illustrations might be drawn.—Ed.
[† ]Foundations of property shaken! will of course be among the cries raised against the proposal of this same Equity Dispatch Court. Foundations shaken! as if that could be shaken which has no existence. Foundations shaken! instead of shaken, say rather established. Resting on the at-present-existing grimgribber, the pretended rule of action rests upon a quicksand with volcanoes under it. All-comprehensive rule, not detur digniori, but detur locupletiori.