Front Page Titles (by Subject) PART II.—: PROCEDURE. - The Works of Jeremy Bentham, vol. 3
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PART II.—: PROCEDURE. - 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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Art. 1. By an attendant—meaning in a Justice-Chamber—understand any person who, during the exercise of any judicial function, is therein present.
Art. 2. By attendants official, understand all judicial functionaries who being subject to the mandates of the Judge are so present in the Justice-Chamber as above: professional persons included, that is to say, barristers and attorneys of all classes.
Art. 3. By non-official attendants, understand any other person who, in whatsoever capacity, is so present in the Justice-Chamber; including more particularly, parties on the demandant’s side, parties on the defendant’s side, evidence-holders, narrating witnesses, or say extraneous witnesses.
Art. 4. For the designation of the ensuing new arrangements, correspondent new denominations are indispensably necessary: of these new denominations, for rendering them free from obscurity and ambiguity in divers instances, corresponding definition and explanation. Necessary will be seen to be this expository matter, to prevent misconception, and misdecision, or decision on grounds foreign to the merits.
Art. 5. By an evidence-holder, understand any person considered as having it in his power to furnish evidence of any description, relative to the suit in question.
Art. 6. Evidence-holder extraneous: by this appellation, understand any evidence-holder who is not a party to the suit.
Art. 7. Considered in respect to its source,—personal, real, and scriptitious,—under one or other of these specific denominations may every evidence, or say piece of evidence, be included.
i. By personal evidence, understand the information furnished orally, or say by word of mouth; discourse by a person acting in the character of a testifier, or say testificant, or narrating witness: narrating, in contradistinction to a percipient witness; for these two characters are sometimes included in the same person; at other times, not.
ii. By real evidence, understand information furnished to the senses by anything, moveable or immoveable, otherwise than through the medium of discourse: for example, the signs of deterioration or improvement exhibited by a thing deteriorated or improved; signs of operation, visible or otherwise perceptible, in a substance or person operated upon, or an instrument operated with, as in case of homicide.
iii. By scriptitious evidence, understand personal information furnished through the medium of real. Of scriptitious, written is the originally-exemplified, and still the most extensively-employed modification.
Art. 8. Quasi-oral, is an appellative by which may be designated any visible and evanescent representation of audible discourse: for example, the finger language.
Art. 9. Moveable and immoveable: in both these states, quasi-scriptitious evidence has been exemplified; immoveable, as in columns, edifices, and rocks.
Art. 10. Evidence-elicitation: by this appellation, understand reception of evidence, with or without active operations performed for that purpose.
Art. 11. Evidence-elicitator, or examinant: by these appellations, understand any person by whom, for the extraction, or say obtainment of any piece of evidence, active operations are employed.
Art. 12. Examinand, examinee: by these ppellatives, understand any evidence-holder from whom evidence is extracted; by examinee, one from whom the operation of extracting it is going on or has been completed.
Art. 13. Demandant, or say plaintiff: by this appellative, understand any person by whom commencement is given to a suit at law; he at the same time thereby demanding service in some shape at the hands of the Judge. Under this appellative are included the imports respectively attached to the words complainant, prosecutor, informer, or say informant.
Art. 14. Proposed demandant or plaintiff: by this appellation, understand him by whom or for whom application is made for the purpose of his being admitted in the character of demandant, or say plaintiff.
Art. 15. Proposed defendant: by this appellation, understand him concerning whom it is proposed that the service demanded at his charge, of the Judge, be rendered by the Judge, unless by contesting, or say controverting the justice of the demand, he thus defends himself, or takes certain measures and performs active operations for the purpose of defending himself against it.
Art. 16. Minutation: by this appellative, understand the operation by which, in proportion as orally-elicited evidence is delivered, the tenor or supposed purport of it is committed to writing: the tenor, that is to say the very words.
Art. 17. By recordation, understand the operation and course of conduct by which the product of minutation, or evidence, or source of evidence, is taken into keeping, and preserved for use.
Art. 18. By an attendant’s House of Call, understand a house to which by the LETTER post, general or twopenny, as the case may be, a LETTER if directed will, accidents excepted, be sure to reach him; and at which it may and will for all purposes of notice be presumed to have been delivered at the time of the day at which, by the post in question, letters are customarily delivered.
EXAMINATION OF SOLICITORS.
Art. 1. If (as per Sections I. and X.) Dispatch-Court-praying petitions in sufficient number shall have been received,—before the opening of the Dispatch Court the Registrar will have received from the Secretary of State (as per Sect. I. Judge located, how) the several petitions by which cognizance has been given to the Dispatch Court of the several suits.
Art. 2. From these documents, the Registrar, under the order of the Judge, will have framed two lists:—the one, containing simply the names by which the several suits stand denominated and distinguished in the several Courts from which it is desired that they should be transferred: name of this list, the Suits’ name list:—the other, containing the several names of the several suits as above, but under the name of each such suit the names of the several other individuals who on either side are understood to be parties to that same suit, whether in quality of parties principal, or say interested parties, or, in one word, principals,—or in quality of parties auxiliary of fiduciary, or say, in one word, fiduciaries, or say (employing the name commonly in use) trustees.
Art. 3. By an intended benefitee, understand a person by whom it is intended by the law in question that the benefit of the right in question shall be enjoyed. By a fiduciary, or say a trustee, understand a person by whom it is intended by the law in question that his acts in relation to the subject-matter in question shall be exercised for the intended benefitee in question.
Art. 4. Of the several parties bearing to each other respectively the relation of intended benefitees, or say principals and fiduciaries, or say trustees, examples are the following:—
Principals, or say intended Benefitees:
Fiduciaries, or say Trustees:
Art. 5. Note, that by a man’s being an intended benefitee, or say by his having an interest in his own right, in the subject-matter in question, he will not with the less propriety be rendered capable of being, with relation to others, interested in their own right, designated by the denomination of a trustee of that same subject-matter: in the words commonly in use, he may be possessed of it, or otherwise interested in it, in trust for himself and those others conjointly.
Art. 6. If in sufficient number Dispatch-Court-praying petitions, by which, as above, the order of cognizance will have been determined, have not been received, the suits to be transferred, together with the order in which cognizance is to be taken of them, will have been determined; namely, by lot, as per Section X. Suits’ comparative suitableness, Art. 16.*
Art. 7. So soon as the term is elapsed which has been appointed for the sending in to the Dispatch Court information of the existence of the extra-long-standing suits (as per Sect. X. art. 14,) the Dispatch Court Judge will by his appropriate mandates begin to convene the town solicitors of the parties in the several suits, for the purpose of taking their examinations. Name of the sort of mandate, an Attendance-commanding mandate: Form, as per Schedule No. XXVIII.
Art. 8. The number convened for examination on the first day will be the number which he expects to be able to examine in the course of that day’s sitting: and from the experience afforded by that first day he will be the better enabled to deduce the numbers to be convened for succeeding days.
Art. 9. Purposes of such examination, these:—
i. Ascertaining who the several parties to the several suits are; what their names; and how they are circumstanced, in respect of actual residence and thence forthcomingness, and in other relevant respects,—for the purpose of the commencement of the suit by the initiatory examination of the parties.
ii. Ascertaining and making a list of the past proceedings in the Equity Court, that by its being seen where they end, it may be seen where the summary procedure in the Dispatch Court, commencing with the initiatory examination of the parties, will have to begin:—in which said past proceedings will be included the whole of the evidence elicited down to that time, none but what is documentary, that is to say in writing, being receivable in an Equity Court.
iii. Affording data for calculations respecting the quantities of time, absolute and comparative, at the end of which each suit is likely to have received its termination, and of the quantities of the Judge’s time which it is likely to occupy.
Art. 10. For the Dispatch Court Judge, subjects of consideration, which preparatorily to the examination of the first-examined set of solicitors, and therefore to the examination of the parties (as per Section XV. Initiatory Examination of Parties), are these which follow, distinguishable into two lists:—
i. List the first:—Past state of things and events, the scene of which lies in the Equity Court.
ii. List the second:—Future contingent states of things and events, the scene of which lies in the Dispatch Court.
Art. 11. Note, that though in regard to the several suits subsequent to the first, these particulars, most or at least many of them, may not have to be put to use till those same suits come respectively to be called on, yet from the amplitude given to the list, the following are the advantages that may be derivable:—
i. To individuals examined at the first sitting, time may be saved—namely, the time which would otherwise have to be occupied by their respective examinations, preparatory to the calling on of the suits for the purpose of which they come respectively to be concerned.
ii. In some instances, the accommodation of the suit may be the result of the disclosures thus made in relation to it.
Art. 12.—I. List the first:—Past state of things and events, the scene of which lies in the Equity Court. Particulars to be comprised therein, these:—
i. Names of the several parties in the suit:—names at full length;—christian (or in case of non-christian, the names equivalent to them), and surnames.
ii. In regard to each, mention whether it is in his or her own right that he or she is party, or in the right of another or of others, mentioning whom; that is to say, whether principal or trustee, as per art. 4.
iii. Their respective ages; so far as to show whether they are of full age or under age.
iv. The condition, in so far as known, of each one, in respect of marriage: whether bachelor, married man, or widower; spinster, married woman, or widow.
v. The occupation, as far as known, of each one, or other condition in respect of rank and situation in life: for example, in the male sex, Member of either House of Parliament; Member of the Official Establishment, mentioning the office held by him; person living, without profit-seeking occupation, upon his fortune:—if a married woman, the like in regard to her husband:—if a single woman, without profit-seeking occupation, yet without fortune of her own, the fortune of the relative or relatives from whom she derives her means of subsistence may be considered and spoken of as being her fortune, the question not being in any case to be elicited.
vi. The residence, as far as known, of each one: the description given of it, such that a LETTER may be sure of reaching him or her by the post.
vii. Stage at which the suit has arrived; as indicated by the several operations that have been performed, and written instruments that have been issued out of the offices of the Court in the course of it.
viii. Stage of the suit; as indicated by the names of the several offices of the Court in which business as above (No. 7) has been done in the course of it.
ix. In regard to examination of witnesses (including parties examined in the manner of witnesses,) if it is going on, day on which it commenced: if terminated, day on which it terminated.
x. So, in regard to the Master’s office.
xi. So, in regard to such others of the offices as this head of consideration is applicable to.
Art. 13. Applicable are these same subjects of consideration not only to the principal or original Bill, but to any accessary Bills, to which it may have happened to be filed in consequence of it, or for the purpose of it.
Art. 14. By the principal Bill, understand the Bill in and by which the demand made upon the Court for the judicial service in question, or say for the obtainment of the benefit sought by application to the Court, was first made.
Art. 15. Accessary Bills, capable of being filed in consequence of an original Bill, are these which follow:—namely, 1. Cross-Bill; 2. Supplemental Bill; 3. Bill of Reviver; 4. Bill of Review.
Art. 16. Accessary Bill, capable of being filed for the purpose of the suit, during the same, or antecedently thereto, is a Bill filed for the single purpose of the examination of witnesses in perpetuam rei memoriam: the original Bill being eventual only, and, it may happen, never filed: as it may happen, in particular, in the case where it is only in contemplation of an original Bill not existing, that the said perpetua rei memoria Bill is filed.
Art. 17. By perusal of the several Petitions, together with the above-named list, the Judge will have been enabled to form a conception more or less correct and comprehensive, in relation to the subject-matter and the existing state of the suit in question, of the topics following: that is to say,—
i. The subject-matter of the demand preferred by the Equity suit: or in other words, the nature of the judicial service thereby demanded at the hands of the Judge.
ii. Ground or grounds of such demand.
iii. Refusal to comply with such demand, as declared by or deducible from the deportment of each several defendant: say, in case of his inaction, proposed defendant.
iv. Ground of such refusal, as declared by or inferred from such deportment.
v. Proceedings in behalf of the several parties on each side of the suit: proceedings—that is to say, operations performed, and instruments delivered in or issued.
Art. 18. The appropriate information obtainable from the documents in question being thus obtained, the next object of his consideration will be, in regard to each such suit, what further information conducive to the above end presents itself as obtainable by examination taken of solicitors employed in the several Equity suits.
Art. 18. Furnished by this examination will be information respecting operations likely to be eventually requisite, and for the purposes following:—
i. Ascertaining and settling what shall be the subject-matters of examination at the time of the initiatory examination of parties and witnesses, in the suit in question.
ii. In relation to things intrinsically valuable, as per Sect. VI. Judge’s Powers, art. 9, to determine what in consequence of such examination shall eventually be prehended.
iii. So, in relation to things relatively valuable; to wit, documents.
iv. In relation to such other persons, whose evidence may have need to be elicited, to determine in relation to which of them it may be proper to proceed by means of an attendance-requiring mandate, and which others, if any, by means of a response-requiring mandate.
v. So, in relation to what persons, if any, it may be necessary to proceed by a prehension-and-adduction-requiring mandate.
Art. 19. On the attendance of each such Solicitor, the Judge taking in hand a Petition belonging to the suit in which he is solicitor, will proceed to take his examination touching the matter of the articles therein contained; in such sort that to the information afforded by the party or parties, confirmation or amendment,—to wit, defalcation, addition, or substitution,—may be applied, as the case may require.
Art. 20. On this occasion, antecedently to his proceeding to the examination of any party to the suit, the Judge will either rest satisfied with the examination of one such solicitor, or proceed to the examination of others on the same day, or on a subsequent day, as the circumstances of the individual case in question may require.
Art. 21.—II. As to List the second. Future contingent states of things and events, the scene of which lies in the Dispatch Court, are the following:—
i. As to each suit, whether and in what instances, after the initiatory examination, intercourse between the Judge on the one part, and the parties and witnesses on the other part, is likely to be needful. For provision on this subject, see Section XVI. Appropriate Intercourse secured.
ii. So, whether and in what instances, and in what manner, for appropriate forthcomingness of things and persons, taking security is likely to be needful. See Section XVII. Mutual security for appropriate forthcomingness of things and persons.
iii. So, whether and in what instances, for the expense of evidence, without which justice cannot be done, money from a fund other than the property of the party in whose favour it would operate is likely to be needful. See Section XVIII. Evidence-procuring money, how provided.
iv. So, whether and in what instances, after the initiatory examination, the attendance of parties and that of witnesses in Court is likely to be needful. See Section XIX. Subsequential Evidence, how elicited.
Art. 22. Subject-matters for consideration with regard to costs, are these which follow:—
I. Costs of the proceedings in the Equity Court: namely—
i. Of the original Bill, and of the accessary Bill or Bills, if any;—distinguishing: between costs actually paid and costs incurred; distinguishing also the costs of each such Bill; as also the several parties on whom the burden of the costs has borne and bears.
ii. So, as to ulterior costs, were the suit to continue in the Equity Court; so far as an estimate can be made of them.
iii. Costs of any branch of the proceedings, which in the existing practice is wont to be in a particular degree expensive: for example, 1. Commission* to examine witnesses in England or abroad; 2. Sale† of an estate in land, or other subject-matters of real property; 3. Making out the title to a subject-matter of real property. As to this matter, see Section XXI. Equity Court costs, how disposed of.
II. Probable costs of the proceedings in the Dispatch Court. See Section XXII. Dispatch Court costs, how disposed of.
Art. 23. Execution, what and how it may have to be performed: to wit, in such manner as to give the most complete effect to the intentions which will have to be made reference, and require to be conformed to: intentions,—that is to say, those to which in the case of written, or say statute law, in and by the substantive branch, or say main body thereof, expression is actually given by the actual Legislature; and in the case of that same branch of the so called unwritten law, called also common law, is feigned to be, and spoken of as if it were the intention of the imagined Legislature, and thereby as constituting the rule of law. See Section XX. Execution, how performed.
Art. 24. Special subject-matters for the consideration of the Judge:—Of the suit in question, length of continuance, past and future probable: Of the causes of it, examples are the following:—
i. Essential: to wit, the complexity of the species of suit.
ii. Contingent and accidental: to wit, distance in respect of place, and thence in respect of time, in the case of witnesses and parties.
iii. Latentcy: that is to say, where it is known that this or that source of evidence is in existence, but not in what place it is.
Art. 25. Eventual retrotransference: namely, of the suit in question to the judicatory whence it will have been called into the Dispatch Court: and of such transference, whether any probability has place: and if yes, in what manner and at what time it may be requisite that such transfer be made. See Section XXIII. Eventual retrotransference.
INITIATORY EXAMINATION OF PARTIES, &c.
Art. 1. At the time of the initiatory attendance, parties attending there will be, one or more. So likewise, along with them, extraneous witnesses, none, one, or more.
Art 2. If of such attendants there be more than one, by and with the examination of which one of them it will be most proper to begin, the Judge will commonly have been enabled to form his judgment by the preparatory examination undergone by solicitors, one or more than one in that same suit employed, as per Section XIV. Examination of Solicitors.
Art. 3. If there be co-attendants, two or more, he will, according to the circumstances of the individual case before him, either complete the examination of the attendant first interrogated before commencing that of any other, or pass from one to another in any such order as to the purpose of ascertaining the matters of fact belonging to the case shall have appeared to him best adapted.
Art. 4. A party to a suit is either a principal or an auxiliary. A principal party is one whose self-regarding pecuniary interest is actually affected, or liable and likely to be affected, whether beneficially or burthensomely, by the course of the suit: that is to say, by the ultimate decision by which execution and effect may come to be given to the demand in and by the Equity suit, being or not being in his favour. An auxiliary party is one whose own self-regarding interest is not in either way affected by the suit: for at the Justice Chamber he holds intercourse with the Judge for the support of the self-regarding interest of some party or parties principal, as above. For a list of examples of principals, and auxiliaries or say trustees, see Section XIV. Examination of Solicitors, art. 4.
Art. 5. Exceptions excepted, on the occasion of every suit brought before the Dispatch Court, every individual, as well on the one side as on the other, will appear and attend in person. So likewise, on the first appearance of each suitor, in company with him, his solicitor.
Art. 6. Exception is, where through infirmity of body or mind, the suitor is incapacitated from attendance, or prevented by any impediment either absolutely unsurmountable, or not surmountable without preponderant evil, of which the solicitor will, on his examination, give account.
Art. 7. In the case of every suit in which trust has place, the trustee or trustees, and the intended benefitee or intended benefitees, are expected to appear, whether their names respectively are or are not upon the register-book of the Court, or any written instrument delivered in, at any time, on the occasion of the suit: and in case of non-attendance on the part of any one of them, the solicitor will be expected to give account thereof.
Art. 8. At the first calling on of a suit in the Dispatch Court, the parties, or in default of the appearance of any one or more, such as are forthcoming will stand forth in the presence of the Judicatory:—the parties, that is to say, with or without the presence and assistance of their respective solicitors: and at the same time present will be the Bills and Answers belonging to the suit, with or without the mass of evidence thereto belonging.
Art. 9. By the party or parties on the plaintiff’s side will then be produced a paper exhibiting the demand, without stating either evidence adduced in support of it, or the law or the fact which it has for its ground: only it being expressed in the form of articles, the party or parties on the defendant’s side will, in regard to each article, be interrogated respectively, whether they admit or contest it; and the answer in the affirmative or the negative will be entered.*
Art. 10. Process on the occasion of a suit:
i. By every suit at law, demand is made of a service to a certain effect, at the hands of a Judge.
ii. But it is also made at the charge of a party in the character of a proposed defendant.
iii. Person to whom in the first instance it is capable of being communicated, in such sort as to give commencement to the suit,—either the Judge or the said proposed defendant.
iv. But, generally speaking, no use can there be in making such communication to a proposed defendant before the communication is made to the Judge. For, on the supposition that the defendant will perform the service demanded at his charge, no need is there of application of any sort to the Judge.*
Art. 11. Sole proper initiatory process, one of these two:—1. A simple operation; 2. A writen instrument:—and of the several classes of operations—1. By or on behalf of a person in the character of demandant, or say plaintiff, application made by word of mouth, demanding the service desired by the applicant at the charge of the proposed defendant; 2. Delivery of a written instrument to the same effect. Name, by which this instrument may be designated, the Demand Paper.
Suppose the suit such that, by preserving the remembrance of it, service would in any shape be rendered more than equivalent to the charge, you thereby suppose the need of a Record: and of this same instrument, a demand paper, as here described, is of necessity the first ingredient.
Persons by, or by direction of one or other of whom it must be drawn up, are the applicant or the Judge. If the applicant, so much the better: because, in this case, saved is a correspondent portion of the time of the Judge and other judicial functionaries: and this, whether it be by the applicant’s own hands, or by those of any other person whose assistance he has been able to procure. But suppose him unable to procure any such assistance, is a party, by whom wrong has been suffered, to remain remediless? Forbid it justice. Well then: this being the case, a party who conceives himself to have been wronged, will have to tell his story to the Judge, and to the Judge it will belong to consider and determine, whether the individual case, as so described, belongs to any one, and which of the sorts of cases in which, either to an uncompleted right in any shape, completion is required by the law to be given by the Judge; or to and for wrong in any shape, remedy in any shape to be applied. Denominations, under one or other of which every such remedy will be found reducible, these four:—1. Preventive; 2. Suppressive; 3. Satisfactive; 4. Punitive, or say subsequentially-preventive. Of the satisfactive species, principal subspecies, the compensative and the restitutive.
Art. 12. The suit in the Dispatch Court will (as above, art. 5,) have commenced by the appearance of a plaintiff, or in case of need, an appropriate substitute of his, making a statement of the facts, in so far as they have come to his knowledge, and any such other material facts as he has heard and believes. When thereupon the first meeting on both sides takes place, the plaintiff—that is to say, he or his solicitor—in order to continue the elicitation of the facts which he expects will operate in favour of his case, will have to put and propound to a party on the defendant’s side, questions having for their object the elicitation of evidence operating in favour of his the plaintiff’s case.
Art. 13. This done, the defendant himself, or his solicitor, will put to the plaintiff questions tending to bring forth facts operating in favour of his the defendant’s side; and this done, will state, of the facts operating in favour of his the defendant’s side, such, if any, as have happened to fall within his own knowledge; in other words, in relation to which he has himself been a percipient witness.
Note, that the general complexion of the case will have been brought to view by the solicitor on the plaintiff’s side on the occasion of the general examination performed (as above) on the occasion of the appearance for giving explanation in relation to the petitions, the signature of which is assumed.
Art. 14. Witnesses examined at the examiner’s office will be examined de novo, of course, and in public.
Art. 15. So likewise all defendants, whether they have put in answer or not, and whether the answer has been completed or not.
Art. 16. So likewise all plaintiffs at the instance of any defendant.
Art. 17. In all these several cases, an effective as well as prompt mode for eliciting the truth will be employed, either instead of or on the back of a less effective and very commonly delusive mode.
Falsehoods, in plenty, will of course be detected: but where the averment has been upon oath, punishment as for perjury would be needless and useless: in a word, so much misery in waste.
Even the shame that would be the inseparable attendant will be matter of regret and sympathy rather than a just cause of indignation: against those by whom the unapt system is upheld and profited from, rather than against those who by them are forced into it should indignation be directed.
Art. 18. In case of prosecution for perjury, charged as having been committed in the course of an Equity Court suit, or a suit of which cognizance has been taken in the course of an Equity suit, no evidence elicited by the Dispatch Court Judge shall be adduced in support of the prosecution.
Art. 19. The parties, as many of them as, within the time, are within the reach of the power of the Judge, will, every one of them, in relation to any written instrument written by him, or adopted by his signature, find himself under the necessity of either admitting or denying it to be his: and by the obedience thus paid to the joint dictates of common honesty and common sense, time by months, or even years, money by pounds, or scores of pounds, may be saved.*
Art. 20. Exceptions excepted, as in the Small-Debt Courts, so in this Dispatch Court, counsel will not be employed: or where employed, no more than one counsel will in general be allowed to appear on either side. But as to Eleemosynary Advocates, see Sect. IV.
Art. 21. Exception is, where it appears to the Judge that on one of the two sides in the suit—namely, the plaintiff’s and the defendant’s—there are parties more than one whose interests in the suit are in such sort and to such a degree opposite, that no argument can be used in favour of one, and made to operate in favour of one of the interests, without its operating in disfavour of another on that same side: in which case the Judge will, if he think proper, give admission accordingly, stating his reasons for so doing; of which, with the rest of the proceedings, entry will of course be made on the record.
Art. 22. The statements made, whether by testifying parties or extraneous witnesses, in both instances under the obligation imposed by penal responsibility in case of falsehood, being the only statements having in respect of evidence any claim to regard, the counsel on the plaintiff’s side will not in every case have to make a statement of the several facts constitutive of the ground of the plaintiff’s demand, nor the counsel on the defendant’s side to do the like on that side. But the solicitor on the plaintiff’s side, or the counsel on that side, as the case may be, will state, in the first place, such facts in relation to which, according to his conception, the parties are agreed; stating thereafter such, if any such there are, in relation to which they are disagreed: stating at the same time wherein such disagreement consists: and the like statement, if needful, having been made on the defendant’s side, thereupon will cease the elicitation of the evidence.†
Art. 23. To Solicitors—that is to say, to the town solicitors respectively employed by the several parties, admission cannot be refused: the party in some instances being essentially incapable of conducting the business for him or herself, and in most, if not all instances, a demand having place every now and then for information at the hands of the only individuals immediately and directly acquainted with the several proceedings, disguised as they have been by their technical dress, that have had place in the course of the suit. Moreover, though every party will be competent to make answer to questions concerning facts which have come, or are supposed to have come, within his or her knowledge, it is not every party that will have been adequately qualified for putting the questions necessary to the bringing to light facts which have come to the knowledge of a party, or of an extraneous witness, on the other side.
Art. 24. Every person attending, as above, whether party, party’s solicitor, or extraneous witness, will be subject to examination at the discretion of the Judge; as likewise any other person to whom it may happen to be at any time present in the Court. To no such examinee will any oath be administered: but in case of wilful falsehood in answer to any question put by the Judge, any such examinee will be punished as for wilful perjury: that is to say, by fine or imprisonment, or fine and imprisonment together, with or without hard labour: in which case the falsehood will be styled criminal, but will not be punishable by transportation: and for falsehood not wilful, but committed through temerity, or say heedlessness, such examinee will be punishable by the said Judge as for a misdemeanour: in which case the falsehood will be styled culpable.*
Art. 25. If in the judgment of the Judge, the proof of such falsehood, criminal or culpable, is sufficiently conclusive, he may proceed to execution on the spot: as in case of contempt of Court, committed during the sitting of the Court.
Art. 26. So likewise on suspicion: where ulterior proof is regarded as necessary, commitment may have place on suspicion, if deemed necessary to prevent escape from eventual execution, and so stated: but in this case, the examinee may at the discretion of the Judge be liberated on bail, until the next day appointed for his reappearance: and so, toties quoties, until pronounced Guilty or Not Guilty.
Art. 27. Whatsoever discourse is, during the sitting of the Judicatory, uttered, in relation to the suit, by the Judge, with the intention of its being heard by the audience or any part thereof, or uttered by suitors, witnesses, solicitors, or counsel, with the intention of its being heard by the Judge, will be minuted down on the spot in short-hand, by or under the direction of the Registrar of the Judicatory: and under his direction will be printed and published for sale. (See Section III. Registrar.)
Art. 28. Subject to the discretion of the Judge, as to the obligation or permission to make response, questions may be put to one another by parties, their solicitors, and extraneous witnesses. So also by any other person present, in the character of amicus curiæ: but this not till after leave granted antecedently to indication given of the tenor of the question desired to be put.
Art. 29. On the occasion of every such question, included in the minutes in conjunction with the tenor of the answers, shall be that of the questions themselves;—those put by the Judge himself not excepted.
Art. 30. Exceptions excepted, on the occasion of any question put to him by the Judge, every individual is bound to give some answer or other: if with relation to the suit in question he be not a party but an extraneous witness, for non-response he may be committed to prison; nor discharged from prison without payment of a pecuniary mulct, in so far as able; applicable, the whole or in part, to the purpose of indemnification for the delay occasioned by such his refusal.
Art. 31. Be the question, or say interrogatory, what it will, every person will be able to make some answer to it. If in relation to the subject-matter in question, so it is that he has not any knowledge, belief, or opinion, so then may he say. If, having some knowledge, belief, or opinion, he denies that he has, by such denial, falsehood criminal or culpable is capable of being committed, just as by any assertion: and so if he speak of any matter of fact as highly probable, while he regards it as but slightly probable; and so vice versâ.
Art. 32. No person shall be compelled to deliver any opinion concerning religion, or concerning what is or what ought to be the form of the government of this or any other political community.
Art. 33. If by a party so interrogated it is suspected that his being called in as a witness, and so interrogated, is a proceeding that had for its object the procuring evidence in relation to another suit depending or intended, he may declare to the Judge his belief or suspicion to that effect: and the Judge, if in his belief such be the design, will refuse to lend himself to it.
Art. 34. If, as in case of suspicion of perjury, an examinee refuses to make answer, such refusal may be taken into consideration in the character of evidence; to wit, circumstantial evidence of guiltiness.
Art. 35. The Judge, in the course of all interrogatories put by him, will be upon his guard, and carefully abstain from putting any interrogatories pregnant with deception in any shape: as, for example, tending to cause the examinee to believe that he the Judge knows anything in relation to him or his conduct that he does not know, or believes anything that he does not believe.
APPROPRIATE INTERCOURSE, CONSTANT AND UNIVERSAL, SECURED.
Art. 1. For securing intercourse, at all times, between all parties concerned,—Judge and his subordinates on the one part, individuals in the several capacities of parties litigant and extraneous witnesses on the other,—it is thus enacted:—
Art. 2. No person who has once made his appearance in the Justice-Chamber in the presence of the Judge, shall be suffered to depart until he has given sufficient security for his eventual attendance therein, unless and except in so far as for special cause left at liberty by the Judge.
Art. 3. On this as on every other occasion, would you avoid making choice of the greatest instead of the least evil? Then, whatever you do under the notion of compelling the party to do what ought to be done by him, take care that he has notice of it: that is to say, that the virtual mandate on which you profess to rely as that by which his inducement to compliance is constituted, be really present to his mind: in a word that the notice may be real, not merely nominal; that he may really have notice, not merely be said to know. For this purpose it is that the above provision is made.*
Art. 4. From every examinee, at the first time of his attendance on the occasion of the suit in question, antecedently to his departure, the Judge will require and exact the indication of his House of Call; that is to say, a house at which letters sent by the LETTER post will, accidents excepted, be sure to reach him; and at which, for the purposes of notice, it will be presumed that such letters will have been delivered at the times at which by the post in question letters are customarily delivered.
Art. 5. For and during the time during which it may happen that, for the purposes of the suit in question, need of his attendance may have place, such presumption will continue.†
MUTUAL SECURITY FOR FORTHCOMINGNESS OF PERSONS AND THINGS.‡
Art. 1. An act of bondsmanship is any act by which any person subjects himself to the obligation of rendering to any other any sort of service.
Art. 2. An act of subsidiary bondsmanship is any act by which any one person, for the benefit of another person, binds himself to render service in certain shape to a third.
Art. 3. An act of bondsmanship in general, and subsidiary bondsmanship in particular, is either judicial or extrajudicial.
Art. 4. By the service which it is capable of having for the subject-matter of the promise, the party benefited may be a party on the pursuer’s side, or a party on the defendant’s side.
It may be any sort of service from which the party is capable of receiving benefit in any shape, in the course or on the occasion of the suit.
It may happen to it to be rendered gratuitously or for a price.
Art. 5. To the requisition or admission of it by the Judge, the concurrence of these conditional circumstances is necessary: and when these concur, he will require it or admit it accordingly.
Note.—Now as to excuses* excuses for non-appearance—excuses for non-appearance of a party—the party defendant in a suit at law.—Rummage the modern books of practice (such is the name given by practisers to books of procedure)—rummage over the whole library of them from beginning to end,—no such word as excuse, nor any mention of the thing itself, will you find. Turn to the earliest law book extant, in which any thing occurs on the subject of such practice, scarcely of anything but excuses will you find anything said. Strange enough the difference to a first glance; altogether natural to a further glance. On the part of an individual, on whom the burthen of attendance at a distance from home was sought to be imposed,—and this for no other purpose than that of imposing on him another burthen to an indefinite degree greater,—for throwing off both burthens, and if possible making his escape from them altogether, ingenuity would of course be upon the rack:—abundant would be the excuses; proportionably so, what would be to be said of them in the books. So much for practice in its ancient form. On the other hand, on the part of a man in whose instance the taking on him the burthen was never other than an operation voluntary and well paid for,—no such sensation as that of reluctance being possible, no such operation as that of making excuses can ever be performed: consequently, on the subject of this operation, nothing in any book written on this same subject would there ever be to be said. So much for practice in its modern form.
In the view given by Glanville, of the course of procedure as carried on in that day by that same Glanville, Chief Justiciary under Henry II. in his work intituled de Legibus et Consuetudinibus Angliæ—under the name of Essoignes or Exoines in law-French—in law-Latin Essonia (plural of essonium )—a list is given of excuses, received in those days in lieu of attendance.
Good (says the inquisitive reader:) so much for this incidental topic. But of the principal matter what is said? The subject-matter of controversy being (suppose) title to a piece of land, what is said of the efficient cause of the demandant’s alleged right or title to this same land? What is said? Why, next to nothing. The parties being once fairly brought together in the presence of each other and the Judge, the question, who was entitled to it, was a question which, it was assumed, would presently be settled: just as at present a demand is, which in a Small-Debt Court is made by a baker on a customer for a dozen of quartern loaves:—on which occasion, employment might be given to an action of ejectment, with a few years of delay and a few hundred pounds of expense, with about as much propriety and use as, at present, employment is given to an action of the sort so denominated on the occasion of a dispute about the property of a piece of land. As to efficient causes of title,—of any such matter, incidentally only, in the way of allusion, and under a different head, is mention made, namely, of about five or six of them, in Book XIII. Chap. II.
Nor altogether without reason was this same assumption, this assumption of promptitude, made; strange as it may seem to those whose ideas of real-property law have no more instruction, nor other source, than that system of procedure which has had for its object and occupation the maximizing the insecurity of that same property, and the dilatoriness of all law proceedings, in relation to it, for the benefit of its pretended guardians.
To this dead and for so many hundred years buried topic, resurrection will now be given: and, as to the name essoign, it still lives, remaining attached to one of the days reckoned from, in lawyers’ gibberish, when putting to use the fixt days’ device.—(See Petition for Justice.)
Number of these excuses, according to the above-mentioned Grand Justiciary, four. Wretchedly inadequate this list, regard even had to the scanty exigencies of the state of society for which it was given. For giving it completeness, common sense, applied to the common exigencies of society in its present state, will now suffice. For securing verity to the affirmation, observable care at that time employed, none: at this time, on this occasion, the same care will be employed in this case, as in all others.
Of apposite excuses, a list, as complete as may be, will have been locked up and authorized by law. Existing mendacity licence will have been cancelled; responsibility substituted: substituted as effectually, as by punishment for perjury, under the existing system, it is vainly.
The individual by whom the excuse is sent in, will be either he whose attendance it is that is commanded,—say the mandatee, or another individual for him: if the mandatee, the non-compliance to be accounted for will be the non-attendance. But in each of three cases—that is to say, death, non-information of the summons, and physical inability to make response—not only will compliance, but excusation, or say assignment of the cause of non-compliance, that is to say of his non-appearance, be on his part impossible. Here then is provision to be made of a vicarious excuse given, or say excusator, or apologist, by whom affirmation will be to be made (which may be by LETTER post) of the fact, by which the non-responsion in conjunction with the non-attendance was produced. Here, then, will be two species of eventual excusator—excusator proper, and excusator vicarious—to whom, on the cover, every mandate for attendance will be directed: eventual mandatee vicarious, a person uncertain, any person (to wit) at that time seen by the messenger (the postman) in the house: to which functionary the requisite instruction, for the performance of his duty, will in and by the particular Code belonging to his office have been communicated.
By malâ fide litigants, and their solicitors and attorneys, for staving off the termination of the suit, and consequently for evading proof of the receipt of the mandate, devices, as many and effective as human ingenuity can contrive, will of course be contrived: all these the tenor of the law will have used its endeavour to obviate.
Under the existing system, in the local field of procedure, a sort of hunt has at all times been carried on, and at all times under every possible system, so long as man is man, will continue to be carried on: carried on, on the part of each apparent hunter, with or without intention to catch, according to circumstances. To the species of game, which is the subject-matter of this hunt, no name has as yet been assigned: yet, name assigned to it there must be, or no directions as to the catching it can be given. Call it, then, a summonee; and on this particular occasion, a summonee for attendance: and, attached to every summonee proper for attendance and response both, will be a summonee vicarious for response alone, as above. Thus it is, that for the purpose of this logical species of hunt, the huntees require to be put in couples in all cases; as, in the natural species of hunt, do the hunters in some cases.
In regard to permission and obligation as to attendance, provision will have been made by law for interest in all its several established modifications: self-regarding interest, trusteeship, and partnership, which is a compound of both: trusteeship in all the several forms in which the relation between the trustee and the intended benefitee manifests itself. Examples these:—1. Guardian and ward: 2. Husband and wife; 3. Agent and principal; 4. Chairman or secretary, or other nominees of a joint-stock company, and the rest of the members; and so on. (See Section XIV. art. 4.)
EVIDENCE-PROCURING MONEY, HOW PROVIDED.
Art. 1. For elicitation of evidence likely to be material to the suit, power to the Judge to require advance of money from suitors on both sides.
Art. 1*.—i. By this means undue influence on witnesses prevented.
ii. A source of oppression cut off, and suitors prevented from going to needless expense, in the expectation that the other party will have to reimburse it.
iii. The richer a man, the stronger on his part the temptation to corruption and oppression in this form. It is a resource for malâ fide suitors.*
SUBSEQUENTIAL EVIDENCE, HOW ELICITED.
Art. 1. As to the mode of elicitation,—exceptions excepted, oral, perpetuated, as above, by instantly-succeeding minutation, is the mode that will be employed.
Art. 2.—Exception i. Without preponderant evil in the shape of danger of deception, and thence of misdecision, saving produced by the epistolary mode in respect of delay and expense; intercourse being carried on free of expense, by means of the letter-post; the House of Call being settled as per Section XVI. art. 4.
Art. 3.—Exception ii. The oral mode relatively impracticable: for example, the residence of the proposed examinee not being sufficiently known or settled, or being in a distant dependency of this realm, or in territory of a foreign state.
Art. 4. In this case it will rest with the Judge, consideration had of the circumstances of the individual case, to avail himself of such means of intercourse as it may happen to afford; or, for want of such means, to proceed without the piece of evidence in question, or to dismiss the suit from the cognizance of the Dispatch Court.
Art. 5. Subject to re-examination in the oral mode, in case of need, at the discretion of the Judge, will be every piece of evidence elicited in the epistolary mode:—re-examination, that is to say, of the same examinee, with or without counter-evidence and corroborative evidence elicited from other sources.
Art. 6. Submitted, before issuing, to inspection and amendment on the part of the Judge, will be every piece of evidence so elicited in the epistolary mode, as above.
Art. 7. The Judge may, at his discretion, taking the sense of the parties, settle in terminis the answers required to be given by the examinee, in return to the epistolarily-uttered interrogatories. In this case, with the exception of the oath, the answer so returned will in its force be analogous to an affidavit: the species of evidence, affidavit evidence.
Art. 8. Example of a case in which, by reason of its simplicity, it may happen that the course thus chalked out may be pursued without evil consequence in the shape of deception and misdecision through falsehood, criminal or culpable,—authentication of a written instrument, by acknowledgment made by the examinee that a signature purporting to be his is really his.
Art. 29. Neither in respect of fabrication, nor in respect of utterance accompanied with evil consciousness, should forgery be presumed. Accordingly, every written instrument delivered as genuine, and as having been framed and signed without any invalidating circumstances, will be admitted, unless by some party to the suit, the existence or suspicion of its being tainted with forgery, or adopted under invalidating circumstances, be declared.
Art. 30. By invalidating circumstances, understand—I. Illegal force; 2. Fraud; 3. Blameless mistake.
Art. 31. Except as above, no evidence, personal, oral, or written, will be excluded, otherwise than for irrelevancy, and thence uninstructiveness.
Art. 32. Between the evidence of parties to the suit, or say party-witnesses or litigant-witnesses, and the evidence of extraneous witnesses, or say individuals who are not parties to the suit, no distinction will be made as to competency or trustworthiness.
Art. 32*. Why this provision?—Answer:
i. On the part of an extraneous witness, an interest not less strong, even in any degree stronger, than on the part of a party to the suit, may have place, not only without possibility of being proved, but without being so much as exposed to suspicion: hence, if on the score of interest, and for fear of deception by reason of it, the evidence of a party, or the evidence of a non-party known to have an interest in the suit, ought to be excluded, so ought all evidence whatsoever.
ii. Whatsoever be the value in dispute on the occasion of the suit, the seductive force of pecuniary interest will depend, not on the absolute quantum of the value, but upon its relative value, relation had to the pecuniary and other circumstances of the individual in question.
iii. The force of the seductive interest in question being the same (suppose) in both cases, its tendency to produce deception will be much less in the case of a party witness than in the case of a non-party witness. Why?—Because in the case of the party witness, the Judge is aware of it, and of course upon his guard against it: in the case of the non-party-witness, not.
iv. Under the existing system, in cases in which the seductive force of interest is at its maximum, and the mischief producible by it also at its maximum, the evidence of a single witness has commanded, and may at any time command the decision: instances more than one have had place, in which a man has been put to death for murder on the single evidence of an accomplice, purchased by impunity with a thousand pounds reward, promised in case of conviction and not otherwise: nor in these cases did any doubt in respect of the guiltiness of the sufferer anywhere manifest itself.
v. Under the existing system, in cases in which no seductive force in any shape is known to have place, the mere name of interest in a pecuniary shape,—namely, the eventual expectation of a profit amounting to no more than a minute fraction of the value of the smallest denomination of coin, necessitates exclusion: in here and there a particular instance, the bar has been removed by a statute on purpose; but with these exceptions, it remains unremovable.
vi. Scarcely in any other than the pecuniary shape is interest received as a cause of exclusion. By no other attractive force than that of money is a man’s testimony capable of being drawn aside from the path of sincerity: and by that attractive force of money, though it be next to nothing, every man’s testimony is sure to be thus drawn aside. Such, in relation to this matter, are the maxims on the ground of which the existing system has been established.
Art. 33. In regard to priority of elicitation, as between co-demandants, defendants, and extraneous witnesses respectively, the Judge will in each individual case be guided by the circumstances of that same case: employing in the first place his endeavours to elicit with the utmost prudentially practicable promptitude, or say with the minimum of useless delay, each piece of evidence: in the next place, his caution in not giving to any piece of evidence publicity in such sort as to give mendacity-assisting instruction to subsequently-about-to-be-elicited evidence: regard being also had to the convenience of all persons concerned in respect of times of attendance.
EXECUTION, HOW PERFORMED.
Art. 1. Of a suit in the Dispatch Court, the sole side to which the operation designated by the term execution applies, is the defendant’s: a case in which the side it might be supposed to apply to is the demandant’s, or say the plaintiff’s, is only where, in an anterior suit connected with that in which execution is called for, he was defendant.
Art. 2. In every suit, at the close thereof, the question is, in respect of the service demanded at the hands of the Judge by the suit, shall it be rendered or not? if not, whether any and what instead thereof? In either case, unless the correspondent service demanded at the charge and at the hands of the defendant in question is rendered by him, execution will have to be performed: if both services be denied, no such execution will have to be performed.
Art. 3. In the course of any suit, as well on the part of a demandant as on the part of a defendant, it may happen that delinquency may in any one of a variety of shapes have had place: and in consideration, and on the account of such delinquency, that remedy in the shape of compensatory satisfaction, or punition, or both, may be to be administered. But by any demand for either of these purposes, initiation, or say commencement, is given to a fresh and distinct suit. In no other shape than that of inactive, in consequence of a simple refusal, can execution be performed to the disadvantage of the demandant’s, or say the plaintiff’s side.
Art. 4. Under the head of the execution-securing purpose, have been seen the several operations which for that purpose the Judge is empowered to perform upon the person of the defendant, and on things belonging to him. To perform execution at the charge of a defendant, is to give fulfilment to the effective purpose of the prehensive powers, or say the power of prehension given to the Judge, as per Section VI. Judge’s Powers, &c.
Art. 5. Difference between fulfilment given to the execution-securing and the execution-effecting purpose, this: for the former, whatsoever suffering is inflicted on the defendant is but defeasible; in other words, may be temporary, short of perpetual;—in the other, it is perpetual.
For example: if it be a house or a horse that is taken from him, if the operation be the execution-securing, he loses the use of it for a time; if the execution-effecting, he loses it for ever. So in the case of money.
By the difference between the two purposes will the difference between the operations respectively performed by the Judge be directed.
Art. 6. Operation or operations, by which to an ultimate decree of the Dispatch Court Judge, execution and effect will be given, these:—
When and in so far as it is by the delivery of the subject-matter in question that appropriate satisfaction is administered to a demandant, this subject-matter being a thing intrinsically valuable, will be either a thing or an aggregate of things corporeal or incorporeal: if corporeal, moveable or immoveable: money, with casual exception to a small extent, the representative, equivalent, and substitute of the above,—in a word, of all other things.
Without the consent and concurrence of the owner are all other things capable of being prehended: so likewise money, in so far as the individual pieces are in the physical possession of this or any other individual, and by the Judge it is ascertained that they are, and where they are.
Not so money, in the sense in which it is indicative of value, and as such is capable of being delivered and removed in the shape of a given number of pieces of the precious metal in question; the individual pieces, supposing the value of them to be to the amount in question, being at the choice of the person on whose account they are delivered.
Art. 7. For the purpose of such execution, the Judge will take such course, by which at the charge of all parties, delay, expense, and vexation, will be minimized; taking accordingly for the subject-matter of prehension things or persons, or both: and if things, the causing to be made over to the person to whom satisfaction is done, either the things themselves, or money in lieu; if money, then to raise it, causing the requisite things to be sold by virtue of his vendition mandate, or say sale-ordering mandate.
Art. 8. By the initiatory examination and during the continuance of the suit, the means of intercourse for this purpose will have been ascertained and established.
EQUITY COURT COSTS, HOW DISPOSED OF.
Art. 1. Costs incurred in the Equity Courts in the suits which the Dispatch Court disposes of,—in relation to this matter, what course shall the Judge take?—Answer:
i. Take it into his own hands he must: otherwise, as to this matter the suit remains in the Equity Court; effectual relief afforded, none.
ii. Supposing the suit terminated by mutual consent;—in this case, in some way or other the costs cannot but be disposed of: the course taken in that case will so far afford a parallel and standard of reference. But upon such agreement, compulsion is out of the question: and here, need for compulsion may have place, especially where on either side mala fides has place.
iii. The only difficulty is that which regards taxation. That both parties should sit down with their own costs would not be consistent with justice: it would be giving to the malâ fide suitor the benefit sought for by him. Where there is no mala fides, each party may sit down with his own costs; unless difference as to pecuniary circumstances may present a claim to allowance to the relatively indigent from the relatively opulent, in return for the relief afforded him by the Dispatch Court. Where no taxation has place, simple arithmetic may do the business. Where taxation has place—i. e. where mala fides has place,—in this case by a Judge-depute may the business perhaps be done.
Art. 2. In the course of an Equity suit, it every now and then happens that in virtue of some rule of procedure or practice, reimbursement of costs to one party at the expense of another has place, on some incidental occasion, and without reference to the mere question between the parties, or to the consideration of which party has in respect of the main question been most in the wrong or most in the right: from which state of things it may happen that a party who on the score of the main question has to receive costs—that is to say, reimbursement of the costs expended by him—has had to pay, and has accordingly paid costs, in respect to this or that incidental matter, as above. To arrangements of this sort, when already made, the Dispatch Court Judge will not without some special and sufficient reasons give disturbance: but neither in any of these ways, nor in any other, will he assist any party in taking advantage of his own wrong: whatsoever arrangements he finds necessary to make to avoid doing injustice in this shape, he will on this as on every other occasion make.
Art. 3. Under the name of Equity Court Costs, include for this purpose and on this occasion costs expended and incurred in any Courts, Common-Law or Ecclesiastical, on the proceedings of which, or in the result thereof, the Equity Court costs had on the occasion of the suit in question exercised, or was in a way to exercise any controuling or directing power: as to which, see Section VI. Judge’s Powers, &c.
Art. 4. Suppose a case in which, on the part of the plaintiff, at the commencement of the suit, the demand made in it was groundless, and he conscious of its being so: but in the meantime in the course of the suit, on the part of a party to whose damage wrong has been done by the institution of the suit, incidental breach of regulations, or say irregularity, has been committed in such sort that money on the score of costs has been paid by him to a party on the other side, or according to the regulations become requisite to be paid by him. In the allotment he makes in regard to costs, the Dispatch Court Judge will consider, that but for the dishonesty of such plaintiff, and the suffering thereby wrongfully inflicted by him on the defendant, to whom he has constituted himself adversary, no such transgression on the part of the defendant could have had place. Power accordingly to the Dispatch Court Judge to cause such malâ fide, or say evilly-conscious, plaintiff to refund the whole or any part of the money so received or allowed in account under the name of costs, and in any proportion allot and refund it to the party by whom it was paid, or his representatives, as the case may be, to him or them alone; or else to the public revenue alone; or in any proportion to divide the same between the individual and the public revenue.
Art. 5. Note, that though in general there will in this respect be no difference between one party and another on the same side, and accordingly on failure of proof, direct or circumstantial, to the contrary, the presumption acted upon will be that there is none,—yet, as this is a case not incapable of having place, accordingly, should it appear to have place, the Judge will act accordingly: seeing the regard by him had in this as in all other cases to their several pecuniary circumstances, he will assess the whole of the costs upon him or those whose state of mind has been that of evil consciousness, no part upon him or those whose state of mind has been that of blamelessness, and so in the case of blameable heedlessness.
DISPATCH COURT COSTS, HOW DISPOSED OF.
Art. 1. As in the case of compensation, making imposition of mulct, and disposal made of Equity Court costs, so in the case of the costs disbursed and incurred in the Dispatch Court, regard will be had to the pecuniary circumstances, absolute and relative, of the parties,—regard had and correspondent and appropriate allotment made: for, whatsoever reason for such regard and disposal has place in any one of those cases, the same has place in every other. To no person does it make any material difference under which of all these names, on which of all these occasions, for which of all these causes, he has to pay: in regard to payment, to him all that is material is, what he has to pay, and where and at what time or times he will have to pay it.
EVENTUAL RETROTRANSFERENCE OF A SUIT TO THE EQUITY COURT.
Art. 1. Antecedently to the day on which this Act is appointed to expire, the Judge, unless in the mean time further continuance shall have been given to it, is hereby required to pronounce a decree in relation to each one of the suits which are at that time in pendency in his judicatory. This decree will be final or interlocutory, according to the progress made in the suit. If it be interlocutery, the suit will, for the purpose of receiving a final decree, revert of course to the Court from which it had been withdrawn: and except in so far as appealed from in such Court, all directions contained in such decree will, in and by such Court, be conformed to and carried into effect as if it were in such original Court that the decree had been pronounced: and in such direction will be included whatsoever it shall have seemed good to the Judge to determine in relation to costs.
Art. 2. In respect of all such suits, if any, in which a final decree having been pronounced by the Dispatch Court Judge, execution, either in the whole or in part, remains on the dissolution of such Court unperformed, such decree will receive its completion or its entire performance in the original Courts.
Art. 3. If as hereby eventually intended, a complete system of Local Judicatories shall have been established antecedently to the expiration of this Act, or of any Act passed for the continuance of it, or if a Local Judicatory for the London Judge-shire shall have been established, all such suits as at that time are still in pendency in the Dispatch Court will be to be transferred to such London Local Judicatory, instead of the original Court.
EXPENSE OF THE COURT, HOW PROVIDED FOR.
Art. 1. At the charge of the public revenue, disposal of which is made by the Parliament of Great Britain and Ireland, will the whole expense of the Dispatch Court be defrayed.
Art. 1*. Of the here-proposed institution it is a principle, that of the remuneration received by the public functionaries employed, no part shall be paid by a party on either side of the suit, but the whole by Government: in the same manner as most other parts of the national expenditure. On the contrary, under the existing system, paid, on the whole or in great part, at the expense of the suitors, are the functionaries belonging to the Equity Courts. Instead of leaving the several subject-matters of the suit in the hands in which they are at present deposited, and operating upon them while in the hands of the functionaries of the Equity Courts, why remove them into the hands of the Dispatch Court Judge? Answer, as above:—If, after a suit has been taken out of the hands of an Equity Judge, any subject-matter of the suit were to remain in the hands of his subordinates, or any of them, the consequence would be, that whatsoever disposition came to be made thereof, need would from time to time have place for some operation to be performed in relation thereto by this or that one of those same subordinates. Either those which such subordinate had been accustomed to do no otherwise than on receipt of a fee, he would have to do without receiving remuneration in that or any other shape, or fees such as he would have received otherwise will be to be received by him at the expense either of the suitor, or, as above, of Government. Compelling him to do without remuneration that for which by legal practice he had been authorised to expect remuneration, would be an infringement of the non-disappointment principle, and would afford a natural, nor that an altogether ungrounded matter of complaint on the score of injustice. Take the subject-matter out of his hands, this cause of complaint has no place. True it is, the pecuniary loss to him is the same in the one case as in the other. But on the other hand, in the one case, the labour, such as it is, continues to be imposed upon him—imposed upon him without his being paid for it. But what is more material is—that he is in no other state than he would be in if it were by compromise, or by impoverishment of the parties on one or both sides, that the cessation were produced: and it will be hard to say, that the State ought to be inhibited from granting to parties that cessation of suffering which they would not be inhibited from granting to themselves: or that the Government having, by its unapt arrangements, for the sake of its creatures, begun to administer to the parties impoverished something under the name of justice, should be bound, merely for the sake of those its functionaries, to do the suitors evil to an amount much more than equivalent to the good thereby done to those same creatures. As to the fees, were the payment of them to be continued, the continuance of the expense would not be the only evil produced. To it would be added that of the delay. For, in each instance, when a fee is received, it is on the occasion of some operation performed: if the payment of the fees be continued, so must be the performance of the several operations coming to be performed on the several successive occasions.
Art. 2. Fund out of which the expense of the Dispatch Court will be provided for,—the Consolidated Fund.
Art. 3. An auxiliary extraordinary and specific fund, to be drawn upon in aid and relief of the above-mentioned general and ordinary fund, will be composed of the produce of such fines, or say mulcts, as will by the Judge have been imposed upon and exacted from offenders, or say transgressors or delinquents, in respect of all such offences, or say acts of transgression or delinquency, on the occasion and in consideration of and punishment for which such fines will respectively have been imposed.
For the list of these same offences, see Section VI. Judge’s Powers, &c. art. 34.
Art. 3*.—i. So far from being a source of expenditure, the Dispatch Court, proceeding on the principle in that section indicated, may reasonably be expected to be, and ought to be endeavoured to be made, a source of revenue. So also, and thereby, of moral melioration.
ii. Consideration had of the prodigious amount to which, under the existing practice, falsehood—wilful falsehood, as well with oath as without oath,—has place, it is but too certain that, notwithstanding the repressive power of the arrangements herein above provided, it will at the outset have place to a very extensive amount on the part of persons of all degrees of opulence in the several capacities of suitors and witnesses.
iii. But in each such instance, no sooner is it become manifest, in the eyes of the Judge, and as he will perceive in the eyes of all the bystanders, that delinquency in this shape has had place, than under Section VI. the delinquent will be detained in the Justice Chamber, interrogated as to his pecuniary circumstances, and if the Judge sees reason, incarcerated, and not liberated till he has paid the sum which, by the Mulcting Mandate* he has been ordered to pay: and this process may be continued by the examination of extraneous witnesses in the case of delinquency in this shape, exactly as in the case of delinquency in any other shape.
iv. As to the amount of the mulct in each individual case, the grounds upon which it is to be fixed have been already pointed out in Section VI. art. 52, and following. If from an individual the aggregate of whose property amounts to no more than £5, it is right and justifiable for the Judge to exact on the score of delinquency in any shape such his £5,—from an individual the aggregate of whose property amounts to £500,000, can it be otherwise than right and justifiable for that same Judge, on the score of delinquency in that same shape, to exact such his £500,000?
v. True it is, that wrong and unjustifiable it would be, if into the pocket of the Judge, money to his own use being in both cases exacted by him, money to a greater amount were exacted in the case of the £500,000 than in the case of the £5. But by the Dispatch Court Judge no money would to his own use be exigible or receivable in either case, or in any case.
vi. Not on the absolute, but on the relative quantity (need it be said?) of the money exacted from a person on the score of delinquency and punishment, depends the quantity of the suffering produced by the loss:—on the relative quantity, relation being had to his pecuniary circumstances.
vii. Almost too obvious and too manifestly incontestable is the truth of this position, to admit of its being thus in a direct way laid down in the character of a ground of proceeding. Laid down, however, it must be;—to such a degree and to such an extent, by sinister interest, and interest-begotten and authority-begotten prejudice, have at all times the eyes of public men—of the ruling and influential few—been blinded to it.
viii. This blindness,—if real, self-regard has it for its efficient cause: if apparent only, hypocrisy for its accompaniment.
ix. In the direct and exact proportion to his opulence is the rich and influential man a gainer by the success with which this delusive rule, having been received as if prescribed by justice, is applied to practice.
x. In this same proportion, if besides being a depredator he is an oppressor—a hater of those under him, as well as an inordinate and too passionate self-lover,—is the pleasure he derives from the thoughts of the suffering of which on their part it is productive.
xi. “Excessive fines ought not to be imposed:”—by these words is expression given to one of the positions, propositions, aphorisms, or axioms, contained in the famous Declaration of Rights, to which the Revolution of 1688 gave birth. And the absolute is the sense in which we see by Judges of the Supreme Criminal Court (as in one sense it is so aptly called,) it has ever since been interpreted. And of the interpretation thus put upon it, what have been the efficient causes? One negative cause, this:—by this outward show of mercy nothing has been lost to the Judge: from a fine to the largest amount no more money goes into his pocket than from a fine to the smallest amount.*
[* ]Some portions of matter originally included under this head have apparently been distributed under others, to which they appropriately belonged: as for instance, Sect. VII. Prehensors, art. 1.; Sect. VIII. Consignees, art. 1; Sect. XIV. art. 3. &c. No such places have been found for the articles now following.—Ed.
[* ]See Note at beginning of Section X.—Ed.
[* ]Commission.] Not long ago, to the author of these pages, mention was made of an instance in which the expenses of a commission to examine witnesses, though the distance of the places at which the examination was taken was not greater than that between Paris and London, was upwards of £9,000.
[† ]Sale.] In one of the pamphlets that have been published of late years, an instance is mentioned, in which one single fee charged by the Master for the sale of one single estate was between £500 and £600: he contributing nothing to the proceeding but his fiat, as notified by his signature.
[* ]At this first hearing, savings in delay and expense will incontestably and manifestly be the following:—
[* ]In contradistinction to the term defendant, simply, altogether necessary is the appellation proposed defendant. Cases in which, under the existing system, the term defendant being employed is improperly employed, two:—1. Where he performs the service demanded at his charge; 2. Where, being purely passive, he omits to perform it:—of this distinction, not inconsiderable is the practical importance.
[* ]Under the existing system, for the purpose of proving that a LETTER or a signature to a note of hand, or to a bond, was written by the man by whom it was written, a witness may have been fetched from Australia or Peru, this operation having been pretended to be, or having even really been necessary, while the man may have been living all the while within a stone’s throw of the Justice Chamber, and every now and then, on the occasion of some discussion carried on in the course of the suit, standing up in full view of the Judge.
[† ]On the plan herein set forth, the truth of the case would come out at the earliest moment, and except the vexation which would result from the indispensable attendance, no suffering, either under the name of punishment or any other, produced, without previous demonstration that by the person in question the alleged guilty act had been performed, and that it was of the number of those to which prohibition stood attached by the hand of the legislature. Say, for shortness, promptitude of proof or disproof, maximized; misdecision by punishment without proof, none.
[* ]See Section VI. Art. 37, 37*, and note.
[* ]Turn now to the existing system, in regard to notice.
[† ]House of Call.] In Buonaparte’s Code Civile, Election de domicile is the locution employed to denote what is here denoted by the locution House of Call. But compared with those here proposed, the provision made by the arrangements there employed will be seen to fall short of being adequate. As to house of call, the phrase is already in familiar use: to fit it for its present purpose, all that it wanted was to have its import appropriately directed and fixed.
[‡ ][Under this head, reference is made by the Author to his Procedure Code; the matter of this section not having been written. See also Section VII. Prehensors, &c. The following matter on Bondmanship or Surety is found in this place: as also a note bearing more immediate relation to the particular subject of the present section.—Ed.]
[* ]Excuses.] House of Commons Votes, 2d March 1830, No. 2: “And the names of Mr. * * * * * being called, and excuses being offered for them, they were ordered to attend the Ballot on Tuesday, 16th March.”—No. 6: “Cork City Election. Order for the attendance of Mr. R. read; Mr. W. his medical attendant, called in and stated on oath, . . . . . . Mr. R. excused . . . discharged from further attendance.”
[* ]Under the existing system, demand for evidence is made, not from the Judge, but from the party. Bad effects of this system are—
[* ]See Schedule No. XXIX.
[* ]1. Behold in the provisions contained in the foregoing articles, fresh occasion and fuel for explosions of learned gas, in addition to those which by the self-extensive power conferred on the Judge will have been elicited.