Front Page Titles (by Subject) SECTION XV.: INITIATORY EXAMINATION OF PARTIES, &c. - The Works of Jeremy Bentham, vol. 3
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SECTION XV.: INITIATORY EXAMINATION OF PARTIES, &c. - 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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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.
[* ]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.