Front Page Titles (by Subject) CHAPTER XXXIII.: CONCLUSION. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XXXIII.: CONCLUSION. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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According to Blackstone and the rest of the fraternity, such is the excellence of the English common law, no right is without its remedy. The proposition is true: but what it announces is not a matter of fact, but a relation between the signification of two words. The law gives no right without giving a remedy. How so? Because where it gives no remedy, it gives in effect no right. In any other than this quibbling sense, nothing can be more deplorably, more grossly false. To the great body of the people, the whole mass of right is without remedy. Selling justice to the favoured few, denying it to the many, the system gives rights in outward show, takes them away in effect; gives rights by what it says, takes them away by what it does.
In this state of things, such sort of security as under it men enjoy, they are indebted for, in a great degree, to that morality which, in spite of what has been done by lawyers to corrupt them, still remains in the hearts of the people; in a less degree, to what the law is supposed to be; and least of all, to what it really is.
Of the king it is said, and truly, that he can do no wrong; and the despotism that would be created by the irresponsibility involved in the enigma, is checked in some degree by his personal impotence.
Under unwritten law, in a much more simple sense might it be said of a judge, that he can do no wrong. Why? Because, be the thing in itself ever so wrong, it is converted into right, it becomes right of course, in the powerful and irresponsible hand by which it is done.
A part of the penal branch of the law excepted, the law a man lives under in this country is neither more nor less than le droit du plus fort, the law of the strongest:—not indeed of the strongest hand, but what comes to much the same thing, the law of the strongest purse.
In this may be seen the cause of one part of the never-ceasing chorus of praises, in which the cries of the afflicted and oppressed are continually drowned;—semi-chorus of lawyers, whose rapacity is served by the oppression—full chorus by the purse-proud non-lawyers, whose pride and tyranny-are upheld by it.
Where in one sort of court it costs a man from £50 to £100—in another sort of court from £100 to £500—to purchase any the smallest chance for relief,—with as much expense again, in case of that failure which any one of a thousand well prepared accidents may bring down upon the clearest right—when no man can be permitted either to speak a word for himself or to put a word to his adversary,—what is it that can be done by the most consummate probity, wisdom, active talent, and eloquence, all united in the cause of justice, towards substituting justice to injustice?
Propose that the parties to a suit shall, in all possible cases meet at its commencement, in the presence of the judge, there to give each to the other all such explanations respecting the matters in dispute between them as may respectively be required. By a professional lawyer, these explanations will without hesitation be pronounced impossible. Impossible? Why? Impossible, since they would be inconsistent with that which with him constitutes the standard of right and wrong—the practice of the judicatures in which his emoluments have their source.
Impossible? The country is not yet so unfortunate, but that the mode of procedure which is thus so glibly pronounced impossible, actually has place, and to a greater extent by far, reckoning the number of causes heard and determined within a given length of time, than that only one, to which, according to his metaphysics, the attribute of possibility can be applied. But these causes, being all of them barren of fees, are left of course out of his account, as not being worth including in it.
Impossible? Yes: while in the courts of technical procedure those objects continue to be exclusively pursued, which, from the earliest times of which mention is to be found in history, have ever as yet been pursued, to the exclusion of the only legitimate ends of judicature so often mentioned. But that any such system of corruption and depredation should be an everlasting one, is a notion too degrading to human understanding to be seriously embraced.
The insincerity which it is the object of the arrangements proposed in the foregoing work to prevent, being one among those modifications of improbity, to which it has been among the objects and effects of the technical system to give the utmost possible extent, and to screw up to the highest pitch, any such arrangements will, when proposed, of course be among the objects of horror to a lawyer, with whose sinister interest in all its shapes the perpetuation of that system is entwined.
On the Sunday, he lifts up his eyes to heaven, while those texts are read in which insincerity in all its shapes is held up to view as the object of divine indignation and vengeance.
On the Monday, in the morning he enters the judicatory, and in a speech in which insincerity in all its unpunishable and licensed modes is practised with a degree of energy corresponding with the professional infamy that would attach upon any instance of failure or forbearance, he makes his practical comment upon these sacred texts.
In the afternoon, he enters the theatre of legislation, and denouncing to legislative vengeance the detected conspiracy against everything in the country that is great and good, brands with the associated appellations of Atheism, Utopianism, and Jacobinism, whatsoever wish may be entertained of substituting in any the smallest portion of the field of law, the system of common sense and common honesty, to the system of learned and established absurdity and wickedness.
Atheism, Utopianism, and Jacobinism?—and on what grounds? Atheism, for the endeavour to give a little more effect than hitherto to those sacred denunciations, which in grimace and pantomime he professes to adore: Utopianism, for the endeavour to give a consistent extension to that system of simplicity and justice by which a great majority of causes in number, though not in value, are even now determined: Jacobinism, for the endeavour to give to property, and everything that is dear to men, that security the existence of which is at present no better than a cruelly devised fable.
Yes:—the truth is above dispute, that it is only by a rare accident—and that accident consisting in casting upon the shoulders of the unsuccessful party a burthen artificially excessive,—it is only in that rare case that complete justice, or anything like complete justice, in any one case that ever came before any of the courts in Westminster Hall was, is, or ever can be done.
It is only in that rare case, that after what is called justice has been done to the successful party, he is put into a plight anything near so good as that which he would have been in had the injustice not been committed:—and even in that rare case, the suffering inflicted upon the unsuccessful party being excessive, and by the amount of the difference unjust, the consequence is, that in no one case whatsoever, is that which with so much pomp and pretension is administered under the name of justice, exempt from the well deserved imputation of injustice.
By the hands of these ministers of justice, assisted by that of the minister of finance, the certainty of being able to reduce to utter ruin—if money be not wanting to you, and unless his circumstances have raised him to a level far above that of the vast majority of the people—the man whom you wish to injure—this is the only certainty which, under the technical system of procedure—this is the only certainty which, under the existing system, belongs to law.
A country which endures this, couches under a barefaced tyranny—under a system in which real despotism is screened and aggravated by a show of limitation.
That a system of judicatures, in which never to see or hear the parties is a first principle with the judge,—that such a system of judicature should ever have really had for its objects the real ends of justice, is a delusion than which a grosser was never imposed upon the mental weakness of mankind.
A judge mean to do justice to men whom he will not suffer to come into his sight! In the way of hearsay,—through the medium of a set of representatives, a set of agents whose interest is to misrepresent everything,—to hear everything that relates to the parties without hearing anything from the parties themselves: a man who should really suppose that this is the way to come at the real truth of any case, would be about as rational as a painter, who, having to paint a female portrait, should insist upon taking his idea of her countenance exclusively from the report of a rival beauty, insisting upon it, that if he were ever to see the lady, the portrait would be spoilt.
That if for portraits thus painted from description, better prices were to be had than for portraits painted as the fashion now is, from view,—painters would not be found, and in any numbers, who would be ready to swear, and after a century or two to believe, that it is impossible that a painter who suffers himself to see the original should ever paint a likeness,—is a supposition repugnant to all experience.
Upon the strength of authority, even without pay, self-commendatory propositions find extensive credence: and in the notion thus ascribed to painters, whatsoever there may be of absurdity, self-contradiction there is none.
In some countries, no medical practitioner can ever see his female patient:—in this country, the judge who has robes on, will never see his suitors. The cause is different; but in both cases the felicity of the result is much the same. Justice is about as well served in the one case, as health is in the other;—though perhaps, upon a thorough scrutiny, it would turn out that health could with less detriment lose the benefit of such an interview than justice.
The circumstances by which the practice of the Westminster-Hall courts has been throughout placed in a state of opposition to the ends—in a state of repugnancy to the plainest dictates of justice,—have already in a previous work* been brought to view: and so have the causes in which that opposition and that repugnancy took their rise.
To the correctness of those statements in all the time which has elapsed, from all the multitude of speaking tongues and writing pens, all engaged by interest in every imaginable shape, to controvert everything that with the slightest prospect of success could be controverted, not a tittle of objection has ever ventured to present itself to the public eye.
In that work, it was shown that the whole system of Westminster-Hall proceedings is one great mass of all-comprehensive and remediless injustice: yet propose any the least assuagement,—two things, amongst twenty others, suffice to stop it: the expulsion of the parties from the presence of the judge, and the enormous load of factitious expense which presses on even the cheapest suit:—propose a complete and perfect change,—that real should take the place of factitious law, and natural of technical procedure—and the more clearly beneficial the change shall be seen to be, the more vehemently will it be declared to be pernicious,—the more intensely its approach is apprehended, the more vehemently will it be declared impossible.
Substituting salaries for fees will take away a part, but it will take away no more than a part of the causes which arm judges against justice. It will remove in whole or in part sinister interest in one shape; but besides a swarm of other sinister interests, it will leave interest-begotten prejudices in full force. It will leave the system itself untouched, and with all its vice in full vigour: that system under which it would be impossible to the most consummate wisdom and talent, united to the most consummate probity, to administer anything better or other than injustice.
Yet the prophecy shall be hazarded, that sooner or later, and perhaps before the present generation be altogether passed away, even in the great judicatories now so uselessly crowded into one place, judicature will have for its objects, as in a so much greater number of judicatories it happily already has, the ends of Justice.
[* ]See Scotch Reform, first published 1806.