Front Page Titles (by Subject) SECTION XI.: AUXILIARY JUDGES AND ACCOUNTANTS. - The Works of Jeremy Bentham, vol. 3
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SECTION XI.: AUXILIARY JUDGES AND ACCOUNTANTS. - 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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AUXILIARY JUDGES AND ACCOUNTANTS.
Art. 1. For the performance of various incidental operations of Equity Court procedure, when transferred to the Dispatch Court, instituted hereby, in addition to the Dispatch Court Judge and his Deputes, are a class of Judges subordinate to him, and acting under his direction, by the name of Auxiliary Dispatch Court Judges, or say, Dispatch Court Judges Auxiliary, with their several Deputes.
Art. 2. On this occasion, as on every other, desirable results are the following:—
i. That delay, expense, and vexation, should be minimized.
ii. That to this end, appropriate aptitude in all its branches be maximized.
iii. That, for the sake of appropriate moral aptitude, matters be so ordered that no person be a gainer by needless addition to expense or delay.
iv. That, on the contrary, such persons, as many as may be, may by any needless expense or delay occasioned by them respectively, be losers.
v. That, in respect of the quantum, the remuneration be as small as it can be made, without preponderant evil, by detriment to the appropriate aptitude of the functionaries to whom it is allotted.
vi. That, in respect of the shape in which it is administered, for the sake of appropriate intellectual aptitude, cognitional and judicial, and appropriate active aptitude, matters may be so ordered, that by fear of public opinion all persons absolutely or comparatively inapt in those respects, be deterred or prevented from accepting official situations.
vii. So, all persons in quality of locators, from locating them in those several situations.
viii. That on the part of functionaries thus located, emulation may have place; that is to say, competition for remuneratory approbation at the hands of the Public Opinion Tribunal:—that judicial authority, in relation to which, the popular or moral sanction is the legislative.
ix. That no suit should by its complexity, and thence by its lengthiness, put a stoppage beyond what is unpreventible, to the dispatch of others more than one.
x. That for minimization of delay and expense conjoined with each other, the supply of judicial functionaries may be elastic;—always sufficient for the maximum of dispatch, never more than sufficient;—at all times fitting itself to the quantity of the business by which the demand is produced.
xi. That, by means of the correspondent number of subordinate judges, of the various operations which have need to be performed in the course of the same suit, as many as possible may be carried on at the same time.
xii. That the chain of causes and effects may thus be organized in such sort as to maximize the probability of the production of the several desirable results, each of them in the highest degree possible.
Art. 3. For accomplishing by the above means the above objects, the arrangements that are provided will here be seen.
In regard to the minimization of delay and expense, the accomplishment of the object will depend partly upon the state of mind on the part of the operating functionary—partly on the state of things on the part of the subject-matter operated upon. In relation to minds, that which presented itself as capable of being done, has already been brought to view in the several preceding Sections. Remains to be seen, what is capable of being done in relation to the subject-matter to be operated upon;—namely, the aggregate mass of the matter belonging to the several suits which the Dispatch Court Judge will at the time of his appointment find depending in the several Equity Courts. “Many hands make light work,” says the proverbial rule: corresponding principle, the distribution principle.
Art. 4. Under the guidance of this principle, for the assistance of the Judge hitherto designed by the appellation of the Dispatch Court Judge, is provided a set of Judges under the name of Auxiliary Judges:—for his assistance, and thence operating, to wit, on different parts of the matter of the same suit at the same time as he:—for his assistance, and thence operating under him and by his direction. Thus, then, over and above the stock of machinery already brought to view, comes to be brought to view an additional and different stock, under the name of Auxiliary Judges, with their et ceteras.
Art. 5. But whatsoever were the objects in view, and aimed at in the case of the original machinery, the same will have place in regard to the case of the supplementary machinery. With respect to the quantum of the supply, always enough, and never more than enough, was the quantum aimed at and endeavoured to be provided in the case of the original machinery: the same is the description of the quantum aimed at and endeavoured to be provided in the case of the supplemental machinery:—and, to speak more particularly, for the Dispatch Court Judge have been provided his Deputes, for the Auxiliary Judges, be they ever so many, must be provided their respective Deputes. Thus then, and for the purpose of this close fitting, as in the case of the fabled seven-league boots, already alluded to, the same elasticity, suppleness and pliancy, will be needed in this case as in that.
Art. 6. Thus much as to the quantity of the fresh supply. So as to quality,—appropriate aptitude in all its four branches. As to the means of producing it, and instruments to be provided for the production of it, together with the manner in which application requires to be made of those same instruments, here, as there, the instrument is the matter of reward—the active, the moving force, by which application is made of it, remuneration: here, as there, the direction and mode in which application is made of it, such as will accelerate the motion of the instruments it is applied to, and, in a word, the whole moving part of the machinery,—not retard it. Here, as before, this will be determined by the terms and conditions on which they operate, and the publicity of those same operations,—upon the force with which the voice of public opinion operates upon them, in such sort as to secure the rectitude of the direction in which, and the velocity with which they operate.
Art. 7. For aught that as yet has appeared no reason has been given why, to the Dispatch Court Judge and his Deputes, addition should be made of a set of Judges of a different species, according to the intimation given by the provision thus made of a different name. The reason of this diversity is the benefit looked for from the saving in the article of expense. For an Auxiliary Dispatch Court Judge, a small fraction—say a tenth part—of what at the commencement of the institution would probably be found necessary, may, as will be seen, suffice: and considering the magnitude of the number of assistants which it will probably be necessary to provide for the Dispatch Court Judge Principal, not inconsiderable will be the total amount of the saving thus produced: indeed, were it not for this economy, it seems probable, that in practice an insuperable bar to the whole institution would be opposed by the magnitude of the expense.
Art. 8. For this reason, a necessary operation has been the putting out and deducting from the remainder of the business that sort of work for the performance of which the remuneration attached in practice to the less difficult sort of work can be shown to be sufficient: and for this purpose, magnifying glass in hand, to apply the eye of scrutiny to the several atoms of which the matter of the practice, or say procedure, is composed: this accordingly is what has been done.
Art. 9. In so doing, observation came to be made of a distinction which has place between the species of suits which may be styled simple, and a species which may be styled complex. By a complex suit, understand any suit which contains in the body of it, and as it were imbedded in it, a number more or less considerable of simple suits: insomuch, that after the commencement of the complex suit in question, before it can have been brought to its termination, other suits arising out of the matter of it must, in a number more or less considerable, have received not only their commencement, but their termination likewise. Of this, see further on.
Art. 10. Thus, then, established in the Dispatch Court there will be four distinguishable classes of Judges, whose denominations are the following:—
By these several denominations they will henceforward be designated.*
Art. 11. Functions of an Auxiliary Judge, two:—that is to say—
i. The Master’s Service-performing function; or say, the Master’s Service function.
ii. The Elementary, or say Excretitious Suit-dispatching function; or say, the Collection and Distribution-performing function.
Art. 12. By the Master’s service-performing function,—understand that function to which exercise is given by the performance of the several operations which in the Court of Chancery are performed by the functionaries styled Masters, with the exception of these administrative operations which by Section VIII. are transferred to Consignees.†
Art. 13. By the Elementary-suit, or say Excretitious-suit-dispatching, or say Collection-and-Distribution-performing function—understand the following:—Where by a last will or a conveyance of the whole or any part of the estate, or say property, of an individual, with his concurrence and consent, for the discharge of his debts, a gross sum has to be divided into shares,—deciding in what manner it shall be parcelled out among such persons as by the written documents received from the Equity Court, or from the claims put in by the persons in question, in the proportions that shall appear to be due to them:—and in case of contestation, deciding upon the validity of the several claims made of the several shares.
Art. 14. In a pecuniary account, as between debtor and creditor, whatsoever be the number of items, no one of them is there to which it may not happen to be the subject-matter of contestation, and thence of a suit: in this way, out of one suit which, when transferred to the Dispatch Court, was still in pendency in the Equity Court out of which it was transferred, may, after such transference, be made grow suits in any number, to which may accordingly be given the denomination of excretitious suits; and to the Equity suit out of which they grew, the correspondent denomination of a pregnant, or say prolific, or proliferous suit.
Art. 15. Of a suit of this sort, the subject-matter is of the number of things spoken of in Section VIII. as being of a nature to be placed in the hands of a consignee until an effectual distribution of the aggregate sum of money in question among the persons thereunto entitled can be made.
Art. 16. Accordant with one another are the two functions in this;—namely, that to the due exercise of them no scientific law learning is necessary, any more than to the Commissioners of most of the Small-Debt Courts, by whom are notwithstanding exercised functions as effectually and incontestably judicial as those exercised in and by any of the several Wesminster-Hall Courts: nor so much as to one species of Judge—the class of Judges styled Justices of the Peace. On the Chief Dispatch Court Judge-Principal is the reliance for the performance of whatsoever operations, to the performance of which the need of scientific law learning, such as that supposed to be possessed by the Wesminster-Hall Judges, has place.
Art. 17. Taking cognizance, each of them, of so many elementary suits or parcels of elementary suits, at one and the same time, may be each one of any number of Auxiliary Judges: and thus will be saved a correspondent portion of the time which would otherwise be occupied by the complex suit of which they are the elements.
Art. 18. The moneys, for the collection of which an Auxiliary Judge is appointed, will be paid, as above, into the hands of a Consignee or Consignees (as per Section VIII. Consignees,) or into the Bank of England. Name of the mandate by which the receipts of a sum of money for this purpose is ordered to be made, a Money-reception-ordering Mandate: form, as per Schedule No. XXI., saving some small sum reserved for current expenses, as in the case of money paid in by order of the Judge Principal.
Art. 19. A sum of money, when adjudged due to any party, will be ordered to be paid by such Consignee, or by the Bank of England, to him to whom it is adjudged due. Name of the mandate, a Payment-ordering Mandate: form, as per Schedule No. XXII.
Art. 20. In every case, the matter will come, in the first instance, before the Judge Principal: for him it will then be to determine whether to keep the whole of the suit for his own cognizance, or to allot any and what part of it respectively to a Judge Depute or a Judge Auxiliary: to a Judge Depute he will accordingly allot, as above, whatsoever part there may be for which law learning is regarded by him as needful: to an Auxiliary Judge, in his quality of accountant, whatsoever part there is in the instance of which correctness in arithmetical operations is necessary, and dispatch of course desirable.
Art. 21. Of every such Court, by whichsoever functionary kept, the Judge Depute or the Judge Auxiliary, the doors, exceptions excepted, should be constantly open. In each instance, if visitors came, the more there were of them the better; if none came, no harm could any such arrangement be productive of: and in every case, on the part of the Judge, the habit of witnessing the influx, or even without the habit, the eventual expectation of it, would naturally be productive of more or less good: better would be the state of things than under the existing practice, in which the business is performed in a hermetically-sealed receiver, the Master’s Court; and accordingly, responsibility, security against malpractice, in a word, appropriate aptitude in all shapes, minimized.
Art. 22. For giving, in case of non-compliance, execution and effect to the payment-ordering-mandate of an Auxiliary Judge, application will be made of the thereto-applying powers conferred by Section VI. Judge’s Powers, on the Judge Principal: that is to say—1. Prehensive power, as per art. 5; 2. Prehensive and imperative power, as per art. 6; 3. Prehensive and dispositive power, as per art. 8; 4. Prehensor-dispatching-power, as per art. 14; 5. Incarcerative power, as per art. 15; 6. Disincarcerative power, as per art. 16.
Art. 23. Means of obtaining the application of these same powers to those same purposes, the following:—
i. By the Auxiliary Judge a certificate is given of the needfulness of the power in question for the purpose for which the application is made: reference being therein also made to the minutes of the evidence by which the fact of such needfulness is regarded by him as being established. Name of such certificate, a prehension-requiring certificate, or a prehension-and-imperation-requiring certificate, &c. as the case may be; adding to the name of the compulsory mandate the word requiring.
Art. 24. In a case in which the suit has been transferred to the cognizance of an auxiliary Judge, the party defendant will either be found being so on the occasion in question in some other Court than the Equity Court in question, or not: if yes, the Dispatch Court Judge Principal will, at the time of the transference by him made of the cognizance of the suit to the Judge Auxiliary, cause the documents, if any, and money, if any, thereto belonging, to be transferred to the Equity Court Registrar, as per Section VI. Judge’s Powers: and retaining the money, will hold the documents ready to be produced at all times for the inspection of the Auxiliary Judge during the hearing of the suit in question, as also at all other times. The demand being thereupon about to be resisted in the Auxiliary Court, the Judge will, on the application of the plaintiff, convene the defendant; that is to say, him who is so in such other Court: and thereafter the proceedings will be the same as in the case where, at the time of the transference into the Dispatch Court, the suit was not found to be in pendency in any other Court.
Art. 25. When, on the occasion of a suit in and by which, collection or distribution of money having to be made, the cognizance thereof, so far as regards these purposes, is by the Judge Principal transferred to a Judge Auxiliary,—the instrument by which such transference is performed will be an appropriate mandate issuing from the Judge Principal, and addressed to the Judge Auxiliary. Name thereof, a Cognizance-transferring Mandate: form, as per Schedule No. XXIII.
Art. 26. On this occasion, of two states of things, the one or the other will have place: In and by the Equity suit, all debts due to the estate, and all debts due from the estate, will already have been ascertained, or the existence of debts of one or other description, or both, will remain to be ascertained.
Art. 27. Whether of all debts due to and all due from the estate, the existence has or has not been ascertained, either all debts due to the estate have been got in, or some or all of them remain to be got in. If any remain to be got in, a judgment will either have been formed or not, whether any, and what, are to be considered as desperate, in such sort that no suit for the recovery thereof is to be engaged in. In the case of those that have been got in, either the whole amount will in the course of the Equity suit have been disposed of, or a part more or less considerable will, at the time of the transference of the suit from the Equity Court to the Dispatch Court, be in the Bank of England, standing in the name of the appropriate functionary of the Equity Court.
Art. 28. In the case of money due on the score of a legacy, on order made for payment of any sum,—power to the Auxiliary Judge to make provision for eventual refusion in consequence of just demands not at that time known, and for that purpose to require security for the refunding of whatsoever may be requisite for the satisfying of such demand.
Art. 29. Mode of providing for such refusion, this: Forbearing to issue a payment-ordering mandate, as per art. 19, to any creditor or person, until by him or her such security has been found. Name of the mandate, a refusion-securing mandate: form, as per Schedule No. XXIV. Employable modes of such security, as per Section VIII. Consignees, art. 10. The sum, for the eventual refusion whereof security is thus provided, may be the whole or any part of the sum, payment of which is ordered, as above.
Art. 29*. Why ordain any such refusion? Answer.—Reasons:—
i. To prevent injustice to creditors, who without blame on their part are by local distance, infirmity of mind or body, or other cause, prevented from coming in within time.
ii. To preserve the parties from the delay, expense, and vexation of the sole accustomed remedy against such injustice: namely, an Equity suit.
Art. 30. On the occasion of each individual suit, the Dispatch Court Chief Judge Principal will either perform with his own hand the whole of the business belonging to it, or distribute the whole or any part of it among the several other Judges, in such proportion as shall have been deemed by him most conducive to the ends of justice.
Art. 31. Thence it is, that between the functions belonging to one of the classes above named (art. 11), and the functions belonging to another,—as between the functions belonging to the hereinafter-mentioned accountants, no need has place for the drawing of an exact line.
Art. 32. That which, on this as on every occasion, is essentially desirable, is—that (as elsewhere mentioned) the provision made should be elastic,—fitted, or capable of being made fit, to the circumstances of each and every individual case. Proportioned to the degree of this elasticity is the latitude of the discretion given to the Judge. Proportionably dangerous would this latitude be, but for the regulator which is capable of being applied to it. This regulator is the obligation of giving reasons for what he does: for, by this operation of reason-giving, the matter is brought under the cognizance of the Public Opinion Tribunal.
Art. 33. Between the service of the Auxiliary Judge and that of the Dispatch Court Judge Depute, in respect of the elementary-suits-dispatching function, the difference is this:—By the Dispatch Court Judge Depute the whole of the business of the suit in question is carried on, in the same manner as it would have been by the Dispatch Court Judge Principal: by the Auxiliary Dispatch Court Judge, in virtue of his excretitious-suits-dispatching function, such parts only as are hereinabove mentioned; see art. 49.
Art. 33*. Of the institution of these same Auxiliary Judges, over and above the Dispatch Court Judge Deputes, as per Section V., the uses and correspondent reasons, so far as regards their excretitious-suits-dispatching function, are these:—
i. Of the sorts of suits of which the Judge Principal has cognizance, there not being any one to which it may not happen to be taken cognizance of by a Judge Depute,—in other words, his field of service being co-extensive with that of the Judge-Principal, whose Depute he is,—thence it is, that for the rendering of the service for which he is engaged, need has place for appropriate skill in his instance, not less than in the instance of the Judge Principal by whom he has been deputed: need for appropriate skill, and thence ultimately for correspondent remuneration at public expense:—whereas, for the cognizance of a suit of the sort of these same elementary suits, the minimum of appropriate skill may be sufficient: for example, that which is possessed by the species of unlaw-learned Judge, styled a Commissioner of the sort of Small Debt Courts, styled Courts of Requests or Courts of Conscience.
ii. Small, it will have been seen, is the number in which Dispatch Court Judges need or ought to be constituted: whereas, on the occasion of one and the same pregnant suit, it may happen to elementary suits in any number to have place, and to any number of them to be referred to the cognizance of one and the same Auxiliary Judge.
iii. Whatsoever be the number of these same elementary suits, and whatsoever be the number of the Auxiliary Judges among whom they are distributed, so many as there are of these same Auxiliary Judges, so many are there which are capable of being carried on all of them at the same time: thence a correspondent saving of delay to the suitors, and of the expensively-remunerated time of the Judge Principal.
Art. 34. Examples of excretitious suits are—1. Suits maintained in quality of plaintiff by the consignee of the estate of a person deceased, on account of monies which he has to collect; 2. Suits maintained by him in quality of defendant, in case of his thinking fit to refuse compliance with demands made upon him in consequence of his having money’s worth to distribute.
Art. 35. By the Auxiliary Judge’s master’s service-performing function, understand the aggregate of the several functions performed in an Equity Court by the sort of subordinate Judge intituled a Master in Chancery, in subordination to the Lord Chancellor, the Vice-Chancellor, and the Master of the Rolls.
Art. 36. Located by the Chief Dispatch Court Judge will be the Auxiliary Dispatch Court Judges, in such number as, in addition to the Dispatch Court Judge’s Depute, he sees reason to regard as necessary and sufficient for the purpose of minimizing delay in the suits of which he has cognizance. For reasons, see above. Form of location, see Schedule No. XXV.
Art. 37. Term of service, unless dislocated, the same as that of the Dispatch Court Judge-Principal, as per Section II. art. 4, 5.
Art. 38. Power to the Judge-Principal, for reasons assigned, to suspend, dislocate, and relocate every such Auxiliary Judge, as in the case of a Judge-Depute, by Section V., Judge’s Deputes, art. 6.
Art 39. In the situation of Auxiliary Dispatch Court Judge, attendance will be the same as that of the Judge-Principal, as per Section XII., Sittings, times of.
Art. 40. In case of sickness, the Judge-Principal, or a Depute of his, as the case may be, will take the requisite measures for the substitution of a succedaneous Auxiliary Judge to the one so incapacitated by sickness; as per Section V. Judge’s Deputes, arts. 3, 4, 5.
Art. 41. Responsible for every Judge-Auxiliary will be the Judge-Principal, as per Section V. art. 7, for every Judge-Depute. Reasons in this case, the same as in that.
Art. 42. Power to the Dispatch Court Judge-Principal, on his responsibility, to locate in the situation of Auxiliary Judge, in and for the suit in question, any such person as in his opinion is sufficiently qualified for the performance of the functions in and for the elementary suit or suits in question to be exercised.
Art. 42*. Why leave thus absolutely to the discretion of the Dispatch Court Judge-Principal, the choice of every Auxiliary Judge, with the several correspondent powers of suspension and dislocation?—thus absolutely, and without rendering the possession of a qualification in any determinate shape necessary?
i. In the case of the situation of a Justice of the Peace, the power of location is thus absolute, and so as to the power of dislocation: and in that case, no need of application, for the purpose of obtaining such dislocation, has place.
ii. As to qualification, in the case of that situation, no qualification of any kind has place, other than one in which it is nugatory, affording not any the least security for appropriate aptitude in any shape: in the case of a Justice of Peace at large, income of £100 a-year in a particular shape: in the case of a Justice of the Peace in the situation of a London Police Magistrate, the having eaten a certain number of dinners in one or other of four large dining-rooms.
iii. Responsible will the Judge-Principal be to the Public Opinion Tribunal for every such choice: and on every occasion, fixed upon him with a view to it will be all eyes. Responsible is nobody for the choice made of Justices of Peace at large:—nobody to any effectual purpose, in the case of the Police Magistrates.
iv. For the uses, thence the purposes, by which the institution of these Judges was suggested, and which accordingly constitute the grounds and reasons which it has for its support, see those to which expression is given above, in Section V., Judge’s Deputes, art. 12*.
v. To the needful number of the Dispatch Court Judge’s Deputes, limits comparatively narrow may be seen set by the considerations there brought to view. If, in the case of complex suits, as above described, that number were not capable of being enlarged, Equity Court suits in indefinite number would have to stand still, waiting for the termination of this or that one comparatively unimportant and insignificant suit.
vi. What is the number likely to be found requisite?—Answer: At the utmost, very considerably less than that of the Masters in Chancery, considering how much more assiduous their attendance would be, and that they would not have anything to gain by the practice by which those masters in the arts of depredation make such enormous gains—that of chopping the business times into small scraps, the greatest part of each of which evaporates in inefficiency—in gossip, newspaper-reading, or non-attendance; and who attend not more than half the days in the year, or some such matter, upon an average: of one of them in particular, in a pamphlet published a few years ago, mention may be seen made, in whose instance the time employed in the exercise of his functions exceeded not five months out of the twelve.
Art. 43. Power to the Dispatch Court Judge to locate Accountants in such number as from time to time, in his judgment, the demand indicates.
Art. 44. On the occasion of every such location, he will frame an appropriate report, stating his reasons, as in the case of Auxiliary Judge’s Depute, by which he has been induced to make such location.
Art. 45. This report he will address to the House of Commons, and deliver or transmit the same to the Clerk by whom execution is given to the orders made for the printing of papers for the use of the Honourable House.
Art. 46. Attached to the office of Auxiliary Dispatch Court Judge will be a salary of [£400] a-year: payable at the same time and in the same manner as by Section II. art. 1, that of the Dispatch Court Judge Principal.
Art. 47*.—i. This was the salary attached to the office of Police Magistrate at the institution of it, anno 1792. With this remuneration, David Colquhoun, the well-known and most meritorious functionary the office was ever filled by, was well content, to the knowledge of the author of these pages. Added some years afterwards to this £400, was £200: and subsequently another £200:—on each addition, if, in respect of the satisfaction given, there was any alteration, it was from good to indifferent, and from indifferent to still more indifferent.
ii. Added to remuneration in this pecuniary shape and quantity, and the inducement it affords, will be in expectancy, though not certain, yet in degree proportioned to the appropriate aptitude exhibited in this situation, the situation of Judge Principal in one or other of the proposed local judicatories, if and when, as herein proposed, instituted.
Art. 48. Attached to the office of Accountant Auxiliary Dispatch Court Judge will be a salary of [£300] a-year, payable as above.
Art. 48*. This, and no more, is the remuneration attached to the office of Comptroller in one of the Boards, and with this remuneration the occupant located in the office, in the teeth of usage by mere merit, was and is well content, to the knowledge of the author of these pages.
Art. 49. Between the description of persons employed as Judge Deputes, and the description of these employed as Judge Auxiliaries, shall there be any, and what difference?—Answer: Yes. Of the appointment made of Judge Deputes, the purpose is their doing all sorts of business without exception that are done by the Judge Principal—those which require the greatest share of law-learning, as well as those that require the least: whereas the business allotted to the Auxiliary Judges is that in the case of which the greatest quantity of time is necessary, and the least quantity of law-learning sufficient:—as per art. 33.
Art. 50. Qualifications suitable and desirable, are, so far as regards judiciary procedure,—such as the elicitation of evidence,—law-learning and law-practice: so far as regards the taking the accounts, accountantship practice.
Art. 51. Of persons in whose instance the requisite law-learning may reasonably be looked for, are—1. Barristers of short standing as such; 2. Students of long standing as such. Of persons in whose instance the requisite accountantship may reasonably be looked for, any person by whom, in the character of a profit-seeking occupation, that business is carried on. Suits there may be, in which a demand for appropriate qualification in both these respects may have place: to these cases the Judge Principal will pay due regard.
Art. 52. The logical field of service being, as above, no wider than that of one of the numerous Judges of a Small Debt Court, called a Court of Conscience, they not being lawyers, no greater share of law-learning will be necessary in his case than is regarded as necessary in theirs.
Art. 53. If in a case of which an Auxiliary Judge is taking cognizance, a point of law comes upon the carpet, power to the Auxiliary Judge, or to any party in the suit, to cause the decision to be referred to the Judge Principal.
Art. 54. To the Dispatch Court Judge Principal, appeal lies from the decisions of every one of the Judges subordinate to him, as above.
Art. 55. From no one of those same Judges does appeal lie to the decision of any other.
Art. 54* and 55*.—i. Of any transient glance bestowed upon the immense delay and expense produced by every appeal in the present state of judicial practice, a natural result is, an apprehension of the like in this case: altogether groundless it will be found on a second glance.
ii. In relation to any point, or any number of points, in the decision of any one of these subordinate Judges, appeal may on that same day, or even in that same hour, be made to the one Judge Appellate, and ultimate decree pronounced by him.
iii. In this case, of the causes by which in the present practice effects so pernicious are produced, one will not have place at all: the other will not have place but in a much inferior degree of efficiency.
iv. The cause which will not have place at all is—on the part of the malâ fide suitor, on the defendant’s side, when debtor, staving off the time of payment, thence profit by interest of money or profit in trade; on either side, when to a certain degree richer, gaining the matter in dispute by the inability of the adverse party to go on with the suit: on the part of the lawyers on both sides, the profit by fees.
v. The cause which will not have place but in a much inferior degree of efficiency, is—on both sides, the lawyers’ profits by fees. By exclusion of that part of the expense which is produced by the delay, exclusion will be put upon the lawyers’ profit on that expense: what remains obtainable by the lawyer or lawyers, amounts to no more than the fee for a single speech in addition to the first, and by the cost of this second speech the malâ fide suitor will be divested of all benefit in every shape, from a groundless or ill-grounded appeal.
vi. In the ordinary state of things, the uses of appeal are—1. Preserving consistency as between one and another in the series of judicial decisions; 2. Security against malâ fide misdecision. But as to the first of these uses, no application has it on the present occasion: for by express provision, all such application is purposely interdicted: and the other will actually be derived from it.
vii. As to any further stage of appeal, in addition to this one, what has been elsewhere shown is—that from any number of such additional stages in any number, no additional security against bonâ fide misdecision can be derived.*
Art. 56. Such appeal may be made, not only from the ultimate decree, but from the decision on any intermediately intervening question, from the commencement of the suit to the close of it. For, by any such intervening decision, it may happen that the fate of the dispute between the parties may be decided, as well as by the ultimate decree.
Art. 57. In case of groundless appeal, power to the Judge Appellate to give costs; and even in addition thereto, to impose mulct.
Art. 58. Power to the Law Auxiliary Judge to locate Deputes, as many as he sees need for: all of them on condition of serving without remuneration in and during the probationary year, as per Section V. Judge’s, &c. Deputes.
Art. 58*. Advantages resulting from this plan of Probationary Deputes’ location, these:—
i. By an experimental test it is rendered manifest whether the service has or has not need of the several functionaries in question.
ii. So likewise whether and in what degree, relation had to the office in question, the several functionaries are endowed with appropriate aptitude.
iii. They will, each and every one of them, have the most efficient motive for doing his best in the exercise of the functions belonging to his office.
iv. No individual who does not feel within himself a consciousness of his appropriate aptitude, together with a determination to do his best, will take upon himself the duties of the office. No impelling motive will he have for taking it upon himself: an effectual restraining motive he will have to prevent him from taking it upon himself. See Section V. Judge’s, &c. Deputes, art. 12*.
v. No impelling motive will the Auxiliary Judge Principal have for locating any such Depute, unless in his judgment the service has need of an additional functionary in the office in question, and the individual whom he has it in contemplation to locate, possesses appropriate aptitude in relation to it:—aptitude not merely absolute, but comparative also; comparative, comparison had with every other individual by whom acceptance would be given to the office.
vi. By the exertions made by their subsequentially located colleagues, the antecedently located Auxiliary Judges will be stimulated to correspondent exertions on their parts: and thus will be kept alight a spirit of emulation, from which, on the part of the whole number, appropriate aptitude will naturally receive increase: the fire of emulation will be kept alive, and continually on the increase.
vii. All this without a particle of expense to the public:—to the public, nor yet to any individual who is not, with his eyes fully open, prepared and willing to take the office upon himself.
viii. The service will not be in danger of continuing burthened with the expense of a needless or unapt functionary,—expense in the shape of money or reputation;—burthened, by the reluctance to inflict a wound on the feelings of the individual.
ix. In the whole field of efficient service, is there a situation to which this principle of probationary location—say, this probationary-location principle,—may not be seen to be applicable with indisputable advantage?—in every instance, good consequences important and indisputable; evil consequences, none. Is there any such situation? Absolutely none: such is the answer that may be given with unhesitating confidence.
Art. 59. Thereupon the Auxiliary Judge Principal will present to the Chief Dispatch Court Judge a written instrument, containing the name of the person proposed by him to be located in the situation of Auxiliary Judge Depute, and declaratory of his opinion of the appropriate aptitude of the individual so proposed. Name of the instrument, an appropriate aptitude certificate. Form of it, as per Schedule No. XXVI.
Art. 60. Thereupon, the Chief Judge, if consenting, will subjoin his countersignature to the signature of the Auxiliary Judge Principal; and the location will thus be perfected.
Art. 61. Should the Chief Judge refuse or forbear so to join in the location, power to the Auxiliary Judge to present to the Chief Judge a requisition to state in writing his reasons for such refusal or omission: and if within [four] weeks from the day of the delivery of such requisition no such statement shall have been made, the instrument of location will be valid, notwithstanding the non-appearance of such countersignature, entry being made thereon of such requisition and non-compliance. Form of the requisition, as per Schedule No. XXVII.
Art. 62. By his consent, as testified by such his countersignature, the Chief Dispatch Court Judge is not to be understood to be responsible to public opinion for the aptitude of the individual so proposed by the Auxiliary Judge Principal.
Art. 63. Businesses of which, in the existing practice, the Masters in Chancery have cognizance, proper for the cognizance of the Judge Principal and his Deputes, and which as such will be reserved by him for his and their disposal, are those for the dispatch of which law-learning is requisite, such as is regarded as not being obtainable otherwise than by professional practice:—Examples, the cases in which it is referred to a Master to report concerning the goodness of the title to a landed estate which is destined to be sold or purchased.
Art. 64. Of the businesses of which, in the existing practice, the Masters in Chancery have cognizance, those proper for the cognizance of an Auxiliary Dispatch Court Judge are those for the disposal of which law-learning, such as is regarded as not being obtainable but by professional practice, is not requisite.
i. Elicitation of evidence: for, to the Judges of the Small Debt Courts called Courts of Requests, otherwise called Courts of Conscience, by none of whom is any such law-learning possessed, is this function in every instance assigned.
ii. Formation of a judgment on the question of fact in evidence to him exhibited, or by him or in his presence elicited: for, to no unlaw-learned men at large, in the character of jurymen, is this function in every instance assigned.
Art. 65. To one or other of the above heads will be found referable all businesses of which under the existing practice Masters in Chancery have cognizance.
Art. 66. In contemplation of the absence of sinister interest it is, that in a suit coming under the cognizance of the Dispatch Court Judge, power is herein given to him—for deciding in favour of the authenticity and verity of an alleged source of written evidence, for the purpose of saving the delay and expense which would be the inevitable accompaniment of the transference of it to the Justice Chamber, in which the Judge in question sits:—a decision to this effect,—not indeed absolute and immutable, but liable to reversal or modification in the event of subsequential adequately-probative evidence of its want of authenticity or its falsity: on which occasion, moreover, adequate security will be taken for the application of adequate remedy in the satisfactive shape, in the event of disproof so made.
Art. 67. For this reason, in addition to that of the saving in delay,—for these reasons it is, that instructions are given to the Judge Principal to take into his own hands, as much as may be, without preponderant evil by the consumption of his own time, the elicitation of the mass of evidence that belongs to the case, instead of committing the function to the charge of a Master or Masters, as in the practice of the Equity Courts.
Art. 68. In the procedure of the Dispatch Court Judge, sources of saving in respect of delay and expense, whence correspondent accelerative and economizing arrangements will be the following:—
i. Eliciting without interruption the whole mass of evidence which the suit affords, instead of splitting the process amongst days in indefinite number, distant one from another by intervals to an indefinite degree longer.
ii. Absence of all sinister interest by reason of fees, the aggregate of which increase with the aggregate quantity of time employed, or supposed to be employed, in the elicitation of it,—an interest which operates to so flagitious an extent.
iii. Where, and in so far as without preponderant inconvenience it can be done, distributing among Auxiliary Judges in an indefinite number, the elicitation of different parts of the mass of evidence belonging to one and the same suit.
Of these sources of saving, the two first have place in Jury-trial: the last is peculiar to the present institution.
iv. Giving power to the Judge to assume provisionally the establishment of a relatively-material fact by adequately-probative evidence, where no ground of suspicion of want of authenticity or verity has place, security being taken for eventual reversal or modification of the decision so grounded: as for example, the authenticity of a signature to a written document; forgery, especially under such a check, being too improbable to be reasonably presumable.
v. Care thus will be taken by the Judge to maximize the number of admissions: that is to say, the number of the material facts admitted by the party in whose disfavour they operate. The greater the number of these admissions, the greater the saving of the delay and expense of extraneous evidence: the expeditious means of procuring such admissions, epistolary correspondence per post, with inducement administered by the imposition of the burthen of costs, with ulterior remedy satisfactive, and even punitive if need be, in case of evil consciousness in respect of refusal to admit the existence of a fact, the existence of which could not but be known to the party so refusing.
Art. 69. Of the matter of the several suits, the Chief Judge Principal will on each occasion make such distribution among the Judge Deputes, the Auxiliary Judges, and the Auxiliary Judge Deputes, as shall, in his opinion, be most conducive to the ends of justice,—saving the regard due to the responsibility of the Auxiliary Judges for their several Deputes.
Art. 70. In regard to the question of fact, what is material is—not that by one and the same person, or body of persons, judgments should be pronounced having for their grounds evidence applying to facts between which no connexion has place, as in Jury-trial is uniformly the case,—but that, in so far as possible without preponderant inconvenience in the shape of delay or expense, or both, the elicitation of the whole mass of orally-elicited evidence should be performed by or in the view of the same person or persons by whom the judgment grounded on that same evidence is pronounced. Why?
i. Because, where falsehood accompanied with evil consciousness has place, it is capable of being betrayed and made apparent by indications which it is not in the power of description to present to the Judge:—by indications—that is to say, by tone of voice, colour and lineaments of the face, gesture and deportment, in all imaginable respects: whence also the importance of having in the presence of each other two evidence-holders whose evidence is on good grounds expected to be in a state of mutual contradiction.
ii. True it is, that in some cases this identity is not material; in others not possible. The case in which it is not, comparatively speaking, material, is where, on the part of the evidence-holder, no sinister interest, applying to the suit in question, has place: as for instance, a public functionary having in his custody a source of written or oral evidence.
iii. Cases there may be, in which, either absolutely or without preponderant evil in the shape of delay or expense, or both, evidence-holders, two or more, cannot be brought together in the presence of the same evidence-eliciting and deciding Judge.
Art. 71. By the institution of Auxiliary Judge Deputes, the finishing stroke will be given to the system of accelerative and expense-saving arrangements included in and provided by the institution of the Dispatch Court with its correspondent procedure.
Art. 72. As the Dispatch Court proceeded,—as the Chancery Courts became emptied of their business, the Masters in Chancery might be pensioned off. Power to the Lord Chancellor, or to the Dispatch Court Judge, with the Vice-Chancellor or the Master of the Rolls, so to dispose of such and so many of them as he thinks fit:—A man to whom this retreat was an object of desire would of course make application for it by a written document: in the case of a man, should there be any such one, to whom it was not an object of desire, the appearance of its being so might be put on by his signature being attached to a document to the same effect; this being an expedient he would naturally be glad to concur in as a screen from the imputation of inaptitude.
Art. 72*. Why give this power to functionaries more than one?
i. That, on the occasion of any operation unpleasant or pleasant to the individuals thus dislocated, the individuality of the operators may not be known to them.
ii. This is one of the cases, small in extent and number, in the instance of which the exception has place to the general rule by which individual responsibility, and thence on the part of the functionary, single-seatedness, is recommendable.
iii. Increased will be the demand for this concealment by exercise given to the power of assigning a situation with its functions to each functionary thus dislocated, in such sort as to render the pension conditional on acceptance given to the situation so assigned.
[* ]Of these same classes of Dispatch Court Judges, the number and lengthiness of the respective denominations cannot but be matters of just regret. This must be confessed. But in both these shapes the imperfection was unavoidable: and in neither is it greater than that which has place in the existing practice.
[† ]1. Compare with the security afforded by the provisions herein made for oppropriate aptitude, in relation to Masters-in-Chancery business, the utter absence of all security for such appropriate aptitude in the situation of Master in Chancery under the existing practice.
[* ]See the subject of appeal more fully treated of elsewhere—e. g. in the tract intituled Scotch Reform, &c. Vol. V.