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LETTER I. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 5.
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In the account given in the public prints, of a speech of your Lordship’s, on the occasion of the proposed reform, “relative to the administration of civil justice in Scotland.” I observed a passage inviting suggestions from without-doors. Should these my humble endeavours be found productive of any useful lights, it is to that invitation that the subject will be indebted for them.
If Scotland feels, as no doubt she will, and does already, her obligations to your Lordship for the proposition itself, so ought the three kingdoms, with their dependencies, for the invitation coupled with it. In this they may behold a constitutional comment on the primitive text, de minoribus principes consulunt, de majoribus omnes: in this, the constitutional and only rational application of the principle of universal suffrage: information accepted from every source; suggestion, the work of the understanding, open to all; decision, the work of the will, confined to the comparatively few, among whom, without Polish confusion, it can possibly be shared.
According to the terms of the speech, as stated in the paper that lies before me, in the designation made of the persons from whom communications were called for, the members of the Scottish Bar were the only persons particularly mentioned. If, from the letter of the invitation, any such limitation could with propriety be deduced, it was doubtless because, at the moment, the situation so designated presented itself to your Lordship’s notice, as the only source from which, on such a subject, any useful information could naturally be expected. Deviations from the ordinary state of things could not, in so general a survey, have naturally been taken into the account. But as Africa of old was noted for physical, so have the British islands been in modern times for psychological singularities. Hence it is, that, so far as the habit of contemplating the field of law in the point of view in question, that of a field of reformation and improvement (the very point of view, in which, on the present occasion, it fell in your Lordship’s way to bestow a glance upon it)—I mean, so far as the length of that habit can be regarded as capable of aiding the effect, or supplying the deficiency, of other qualifications—neither the Scottish bar, nor any other description of persons, could probably afford a pen, the suggestions of which would be less exposed to the imputation of temerity, than these, how small soever may be their value, which are now courting the honour of your Lordship’s notice.
Two noble and learned lords, in whose wisdom and experience your Lordship finds, day by day, an ever-increasing treasure, wait on this occasion, as on all others, your Lordship’s signal for pouring out the stores of it. Some time before those illustrious persons had, either of them, begun to make his profit of the imperfections, or, as some would say, the abuses, with which the regular system of procedure is spotted, or of which, as some would say, it is composed, the obscure interloper, whose bow is now making to your Lordship, had made it the business of his life to inquire into the means of remedying them.
As to the measure itself, viz. that of endeavouring to infuse the spirit of reform into Scottish judicature, preceding administrations reckoned this, it seems, in the number of their velleities: what they had been thinking of doing, your Lordship has done.
In the sort of relation your Lordship bears to the measure, I find a relief from an unpleasant difficulty. In your Lordship it beholds its patron and introducer; the author, it is matter of ease to me not to know. To the Athenians their legislator presented (such was his plea) the best of all plans that would have been borne with: to Scotland, under a most crying urgency, Lord Grenville presents the best, or perhaps the only plan that was to be had.
As to the general complexion of the plan, to prevent temporary misconceptions, permit me, my Lord, to submit to your Lordship, at this early period, the general result of my researches, in two very simple propositions: that in point of utility, there is enough in it to afford an ample justification to the provisional acceptance your Lordship has been pleased to give to it: that at the same time, when minutely sifted by a not unexercised hand, and with that continuity of attention which it was impossible, in your Lordship’s place, to spare for it, it will be found to fall extremely short of the professions, and perhaps expectations, of the learned author, not to speak of your Lordship’s indubitably sincere and generous wishes and intentions.
In the track of improvement, by a rare coincidence, for a certain part of the way, the interest of the suitor, that is, of the community at large, and the interest of the lawyer, happened to go hand in hand:—just so far I observe the interests of the community really pursued. But, a little further, the interests divide: and there it is that I see that separation taking place, which, in my view of the matter, could not but take place, the interest of the community pursued in demonstration only—the opposite interest of the lawyer being carefully protected, and even advanced, in reality and effect.
Before I proceed any further, I find myself under the necessity of stating a little personal incident, the mention of which would not have been thus obtruded on your Lordship’s patience, but for its indissoluble connexion with the present enterprise. Your Lordship’s invitation found me employed in putting, as I had flattered myself, the last hand to a work of a somewhat new complexion on the subject of Evidence; a work which, though of greater bulk than I could have wished, was itself but an off-set of a still larger one, not wanting much of its completion, and designed to give a comprehensive view of what, in that extensive subject, taken in all its branches, appeared fit to be done in the way of law. Of that off-set, the object was—to bring to view the reasons, by which I had been satisfied that whether the Roman, the English, or any other system, were resorted to, the established rules of evidence, occupied principally in putting exclusions upon the light of evidence, were, almost without exception, adverse to the ends of justice; a conclusion facilitated, in no small degree, by the observation, that there is not one of them, in English practice at least, that is not departed from, and, without inconvenience or suspicion of inconvenience, set at naught, and that for reasons that can have no weight or truth in them, on any other supposition than that of the impropriety of the rule, in every instance in which it is observed.
In looking for the causes of this inconsistency (for where, in the department of legislation, a full light has been thrown upon a subject, causes are a topic that can never have been passed by,) I saw reason to suspect—and that reason gaining strength at every step—that what at first view had presented itself as the result of primeval blindness and imbecility, was referable, perhaps, in a certain degree, to those causes, but probably in a much higher degree to sharp-sighted artifice; that to enable themselves to extract from it that profit which constituted their recompense and inducement for taking their part in it, and that with as much case to themselves as the task of gathering in the profit admitted of, it was necessary for the founders, and successive supporters of the system, to give to it a direction, opposite at every turn to the ends of justice; that among the leading features or main pillars of this system, were the exclusions put upon the most instructive and indispensable sources of evidence; and in regard to such information as was not in itself excluded, the preference given to a variety of artificial and less trustworthy shapes, in which they found means to clothe it, to the exclusion of the more natural and more trustworthy; but that these were but a part of a numerous and complicated system of devices, all tending to the same altogether natural, but not the less sinister end: and that, in a word, on these points, as on all others, the reason why the system was and is so bad as men feel it rather than see it to be, is, that the power found itself in company with the interest, and consequently the will, to produce as bad a system as the people, with the legislature at their head, could in their primeval, and as yet but little ameliorated, state of relative ignorance and helplessness, be brought, by the utmost stretch of artifice, to endure.
Thus it was, that the delineation of the instruments employed in the planting and culture of the predominant system (I say predominant—for there exists another of very different complexion, of which presently, and which, howsoever overpowered, has nowhere been altogether killed by it,) constituted a sort of episode, though, for the full comprehension of the subject, not an unnecessary episode, to the work having for its main subject the exclusions put upon evidence. Finding, then, in the system of reform put into your Lordship’s hands, what I could not but expect to find in it as a matter of course—that the profit and ease of the man of law were as carefully provided for as ever, the interests of the people, in their character of suitors, as completely sacrificed as ever to those original, and, with reference to the man of law, so much nearer objects—and that all the advantage given to the suitor was that comparatively small, though in itself not inconsiderable portion, in which the licensed plunderer would be a sharer with him: finding, in a word, that of all the devices above spoken of, there was not one, the full mischief of which was not reserved to the suitor, the full benefit, to say no more, reserved to the man of law, it was my original intention, for the more complete elucidation of the proposed plan of reform, and the resolutions by which the outline of it is delineated, to have subjoined the episode above mentioned—a sort of picture of the law of procedure—by way of appendix to this address. But this picture not being yet in a state of complete readiness for the press, and at the same time the bulk of it (according to the measure taken of it by my fears) too large for the proportion of your Lordship’s time, which, even upon the most sanguine calculation, could be expected for it; the only feasible course seemed to be to submit to your Lordship, instead of the picture itself, a sort of table of the contents of it; a table bearing about the same relation to the work at large, as in the case of those rude sketches, which, according to panorance [Editor:?] custom, are distributed for the accommodation of the curious, whose visits are received or expected, for the picture of the chief seat of Scottish judicature as exhibited in Leicestersquare, for the purpose of assisting their recollections or anticipations.
In Scotland, as in England, and elsewhere, the system of judicial procedure has been, in the main, the work, not of legislators but of judges: manufactured, chiefly in the form—not of real statutory law—but of jurisprudential law:—imaginary law, consisting of general inferences deduced from particular decisions. By primeval indigence, and inexperience on the part of the sovereign, judges left without salaries, but left with power to pay themselves by fees. Hence, as will be seen, a constant opposition between the ends of justice, and the ends (the original, and thence the actual ends) of judicature.
Proper direct end or object of the system of procedure (or adjective branch of the law,) giving execution and effect to the predictions delivered, to the engagements taken, by the other branch, the main or substantive branch of the law: viz. by decisions pronounced in conformity to it.—Direct ends of justice, prevention of misdecision (decision unconformable to the regulations and arrangements belonging to the substantive branch of the law,) and failure of justice. Failure of justice the same thing in effect as misdecision to the prejudice of the plaintiff’s side, but taking place without decision, and, for want of it, frequently without legal demand made, and for want of it.—Collateral ends of justice, prevention of delay, vexation, and expense, in so far as superfluous, or preponderant (viz. over the mischief from misdecision or from failure of justice.) Misdecision, when to the prejudice of the defendant’s side, may be considered either as comprised under the head of vexation, or as constituting a separate head of collateral inconvenience, and the prevention of it as constituting a separate end of justice.
Interest of the people, in the character of suitors, perpetual and complete fulfilment of the ordinances of the substantive branch of the law (the utility of which must, on this occasion, be assumed,) and thence of the direct ends of justice. Interest of the judges (the authors of the system of procedure,) maximum of profit and ease; profit, as much as could be extracted, with as much ease as was consistent with the extraction of it.
Profit and ease increased by the same cause—the increase of the aggregate quantity of fees. Justice thus denied to the poor, to the labouring classes, to the great majority of the people, as being unable to pay the fees; thence the trouble of administering justice to them saved.
Limits set by various causes to the quantum of the fees exigible on each occasion: aggregate of fees thence not otherwise increasable, than by increasing the number of the occasions on which fees were exacted: factitious delay, vexation, and expense, the results or accompamments of the increase so given to the number of those occasions. Aggregate mass of judges’ profit, increasing with the aggregate mass of delay, vexation, and expense; hence the actual ends of judicature, the interests, and consequently the exertions of judges, maintained in a state of constant opposition to the interests of the people, and the ends, viz. thus far only the collateral ends, of justice. But, from delay, vexation, and expense, result, in various ways, failure of justice, and misdecision, to the prejudice either of the plaintiff’s side or the defendant’s, whichever be in the right: hence a complete and constant opposition between the ends of judicature, and the aggregate of the several ends of justice.
Multiplication of the occasions of extracting fees, the cause of factitious complication, intricacy, obscurity, unintelligibility, uncognoscibility, in the system of procedure. By this complication a sort of sham science produced, and with it, on the part of the suitors, the necessity of having recourse to the members of a distinct class or fraternity thus raised up, sole professors of that science, and of the arts belonging to it. Profit of these professional, as well as of the official, lawyers, arising out of the mass of factitious delay, vexation, and expense, and increasing along with it, the profit of the one class going hand in hand with that of the other. Hence the closest community and general identity of interests;—a virtual partnership, which may be called the law partnership—with the judges, as managing partners, at the head of it.
On the part of malâ fide suitors on both sides (suitors conscious of being in the wrong,) an interest in increasing the quantity of factitious delay, vexation, and expense: this mass of abuse their only instrument to work with; employed by malâ fide defendants for staving off, and oftentimes finally eluding, compliance with the just demands on the other side: by malâ fide plaintiffs, for forcing compliance with unjust demands, or, on the occasion of some trifling demand, gratifying enmity, by the distress or ruin of the object. Community of interests thus effected, between malâ fide suitors, i. e. dishonest men in general, and the members, official and professional, of the law partnership.
Malâ fide cause, a cause in which a party on either side is in malâ fide. Proportion of malâ fide to bonâ fide causes, in some instances as great as that of 89 to 1. In England, the Exchequer Chamber an authoritatively reported and notorious example.
Truth, the handmaid of justice; mendacity, of injustice. Interest which the judges had and have, in encouraging to the utmost the vices of mendacity on the part of suitors, that is, of the body of the people. Propensity to injustice being the source of malâ fide suits, and malâ fide suits still more profitable than bonâ fide suits, hence the interest which the partnership has, in placing and keeping in a state of corruption this the most important part of the morals of the people. Injustice being the great source of lawyers’ profit, hence love of injustice, hatred of justice, passions unnatural to all other men, natural to lawyers of all classes. The lawyer, but more particularly the judge, being under the constant necessity of concealing his passions and vices, as well as the interests by which they are generated—of cloaking the vices under the semblance of the opposite virtues—hence, under the influence of the still-existing mode of remuneration, insincerity, hypocrisy, and lawyercraft, become natural, and in a manner necessary, to the appointed guardians of the public morals.
A man being the better qualified for concealing his own vices from others, the more perfectly he has succeeded in concealing them from himself, hence a sort of imbecility—a relative and partial imbecility—a disease of the understanding:—another vice endemial among lawyers. Hence a general propensity and aptitude, to mistake for justice the injustice by which they profit.
Fees thus rendered the matter of corruption. Various channels, some open, some more or less disguised, through which this matter has been taught to flow, into the pocket and bosom of the judge. Examples:—Receipt propriâ manu;—Sale of a fee-yielding office for full value;—Fine or bonus on admission;—Fee-yielding office given in lieu, and to the saving of the expense, of other provision for a son, or other near relation, or dependent, he doing the duty—or else not doing the duty, but paying a deputy;—Fee-yielding office given, or the profit of it made payable, to persons standing as trustees for a principal, declared or undeclared; if undeclared, supposed of course to be the judge himself.
Under this state of things, the members of the law partnership, natural and irresistible enemies of the rest of the community. Judges, and the other official members, reconcilable enemies: reconcilable, viz. by the substitution of salaries to fees; but not unless the conversion extends, without exception, through all the offices: on these terms, and on these alone, would the partnership be dissolved. The professional members, enemies absolutely irreconcilable; because professional profit admits not of any such compensation. The moral diseases endemial to this branch of the partnership, not, like those of the other, capable of a complete cure:—but yet of a very considerable remission; viz. by cancelling the mendacity-license, granted at present to them and their clients, in the manner explained below.
Were the mass of suffering, inflicted on the people by delay, vexation, expense, and consequent misdecision, as above, no more than equal to the mass of enjoyment accruing to the law partnership by profit gained, there would be no use in the substitution of salaries to fees; no use in rescuing non-lawyers from oppression and pillage under lawyers. But, besides that the sum being given, and circumstances on both sides equal, enjoyment from gain is never equal to suffering from loss; and that the portion which, being added, converts affluence into opulence in the hands of the lawyer, being taken away, converts, as to the greatest part of it, indigence into absolute ruin, in the person of the distressed debtor, and his frequently no less distressed creditor; that part of the factitious expense which goes to the account of lawyers’ profit, is but a part, and that commonly but a small part, of the whole loss, exclusive of the other evils that accompany it. Hence, although (which is impossible) professional lawyers’ profit were to be done away altogether, the welfare of the whole community, lawyers and non-lawyers included, would in a prodigious degree be promoted by the change.
Separately taken, so minute in many instances are the parcels in which the matter of corruption, in the shape of fees, flows into the pocket of the judge, as to be, to appearance, incapable of creating any efficient sinister interest, in a bosom so strongly strengthened against its influence by remuneration in the shape of salary: but, the degree of seductive force, being as the quantity of the aggregate mass, and not affected by the minuteness of the component parts, this minuteness serves but to disguise the force of the seduction, without diminishing it.
System of procedure generated by the influence of this sinister interest, the technical or fee-gathering system: technical, from its nature; fee-gathering, from its object and its cause. Courts in which this system is acted upon, courts of technical procedure. Technical procedure, styled at present regular: courts in which it is acted upon, courts of regular procedure.
System of procedure, which has for its object the ends of justice, and for its model the course naturally pursued for the discovery of truth and administration of justice, as towards children, servants, or other dependants, in the bosom of a private family, the domestic or natural system of procedure; requiring nothing but appropriate powers for the extension of it, with its benefits, over the whole field of political judicature: to which head belong, in some, but not in all instances, the modes of procedure, which at present, in contradistinction to regular, are designated by the name of summary. Courts in which this system is pursued, Courts of Natural Procedure.
System of technical procedure, the work of judges, executed by them in the form—partly of statutory law (as in the case of English rules and orders, Scotch acts of sederunt, &c.) partly of jurisprudential law—with or without occasional patches in the form of statutory law, stuck on by the hand of the legislator, but mostly under the guidance of the members of the law partnership, official and professional, co-operating in concert; consequently under the influence of the sinister interest, opposite, as above explained, to the interests of the community and the ends of justice.
System of natural procedure, the work of the legislator, the legitimate and acknowledged legislator, acting in pursuit of the interests of the community, and the ends of justice.
Courts in which the system of natural procedure is exclusively or principally pursued—In criminali, the courts martial and preparatory courts of inquiry, in both branches, land and maritime, of the military service: in criminali minori, courts composed respectively of commissioners in matters of excise, customs, stamps, assessed taxes, hawkers and pedlars, London hackney coaches: in criminali minori et civili, the courts composed of justices of peace, acting singly or in numbers, disengaged from the technical trammels which await them in their periodical great sessions: in civili, the courts of requests called courts of conscience, the courts composed of commissioners in matters of bankruptcy; the courts, primary and of appeal, recently instituted for the collection of taxes on property and income; the arbitration courts, composed of judges nominated by the parties, but acting under powers given to them by regular courts, by authority from statute-law.—In Scotland, the courts composed of justices of the peace, sitting in periodical sessions, but acting summarily under the name of small-debt courts: in ci-devant France, the consular courts, courts composed of mercantile men, sitting on causes of a mercantile nature: in the Danish dominions, the recently established, more extensively operating, and justly celebrated reconciliation courts.
With us, again, in a higher sphere, the committees of either House of Parliament, sitting in the character of courts of inquiry: the several courts instituted of late years by the legislature for such a variety of purposes;—settlement of public accounts—liquidation of claims—investigation of abuses, or other objects of reform;—and, though last mentioned, yet not least, that noble and necessary bulwark of the constitution, which owes to your Lordship’s illustrious father its existence and its name.
Were it on this occasion worth while, other cases might be found, in which justice has broke loose from the shackles forged for her in the cavern of chicane; but these may, I should hope, suffice to prove, and to the conviction of all but those who, by interest or interest-begotten prejudice, stand bound never to be convinced, that in no sphere of judicial inquiry, from the lowest to the highest, can the charge, either of impracticability or dangerousness, attach upon the honest pursuit of the ends of justice, by the light of common sense.
But the further this only honest system is from being either dangerous or impracticable, the more complete (as I flatter myself your Lordship will perceive) the moral impossibility that any further extension of it should meet the wishes, or so much as the endurance, of the man of law:—a system under which there is no factitious delay, vexation, or expense; nor consequently factitious profit, parcel of that expense; in which misdecision is but an accident, instead of being, as under the hitherto predominant system, a frequent and probable, not to say predominantly probable result, prepared by the operation of a variety of assignable, and peculiarly appropriate causes: a system under which failure of justice can scarcely find a place, instead of being, as under the predominant system, in virtue of the arrangements taken for the reconciliation of ease with profit, the inevitable lot of the great body of the people.
Devices, a denomination that may serve to characterize the several arrangements, principles, and practices, peculiar to the technical system, in contradistinction to the natural; all of them being so many modes of action, conducive at any rate to the ends of judicature; and therefore, upon the face of them, contrivances suggested by the desire of giving to the greatest practicable extent, fulfilment to those sinister ends.
Follows a list of those devices. For greater perspicuity, two columns are placed side by side, one containing a brief designation of the device, the instrument of technical procedure; the other, the correspondent state of things under the natural system of procedure.
Logically speaking, the quality of the natural system will be seen to be chiefly of the negative cast; constituted by the absence of those devices, which constitute so many characteristic features of the technical system.
The arrangements here referred to the natural system, are—partly so many arrangements actually in use and practice in the courts of natural procedure, in some, in most, or in all of them,—partly so many ulterior arrangements, such as, being conducive to the ends of the natural system, that is, to the ends of justice, would be necessary, to the purpose of giving, to the power and beneficial influence of the natural system, an extent commensurate with that of the whole field of judicature.
In the work at large, under the head of each device, explanations are given, where they appeared necessary, under four subordinate heads:—nature and description of the device; examples of the employment given to it in the established system; its repugnancy to the ends of justice; its subservience to the ends of judicature. These elucidations, all of them applicable to the English, most of them (but, happily for Scotland, not all of them) applicable to the Scottish, modification of the technical system, pruned and sheltered by your Lordship’s learned adviser, would occupy too much room here, but remain, upon occasion, at your Lordship’s command at any time.
Arrangements of Natural Procedure.
1. At the outset of the cause, and afterwards, where necessary, the parties, willing or unwilling, heard in the character of witnesses as well as parties, face to face; except in so far as, by reason of distance or otherwise, such confrontation and mutual explanation is, physically or prudentially, impracticable; prudentially, i. e. without preponderant mischief in the shape of delay, vexation, and expense: preponderant, viz. over the mischief in the shape of increased danger of misdecision, for want of the security against deception, afforded by such personal appearance, and consequent explanations and examinations; such conjunct appearance, preceded or not by ex parte appearance of the plaintiff, according to the nature of the case.
2. By or in the name of a party, no writing except in the character of evidence; nor in that character, except in the shape of minutes taken of the vivâ voce testimony, delivered by the parties respectively on such their personal appearance as above, when either party thinks fit provisionally to take upon himself the necessary expense: or where testimony in the ready-written form becomes necessary, either in the character of a supplement or that of a succedaneum to vivâ voce testimony, as per article 3. For the use of printing as a succedaneum to writing in the case of the instrument of demand, see article 11.
3. Testimony received in none but the best shape: viz. vivâ voce testification, subject to counter-interrogation, ex adverso and per judicem: except in so far as the necessity of time for recollection, arrangement, investigation, perusal of written documents, &c., requires a supplement in the form of ready-written testimony; or the impracticability (physical or prudential) of personal appearance produces a demand for testimony in that written form, in the character of a succedaneum; subject always to counter-interrogation, in the written form and mode (the epistolary mode,) in the first instance, and eventually in the vivâ voce form besides.
4. Tribunals within reach; consequently distributed over the country as equally as possible, regard being had to geographical circumstances, and to the state of the population at the time:—object to be aimed at, facility of repairing to the seat of justice (for the purpose of appearance coram judice as above, article 1,) and returning the same day, on the part of those whose abode is most distant from it.
5. After the first meeting, if the suit be not then terminated, as under natural procedure it actually is in the majority of individual instances, time or times for subsequent appearances and operations, settled pro re nata, regard being had to the disposable time of the court, and the convenience of all parties.
6. Sittings uninterrupted; as at the London police offices: or at short and equal intervals; as in the courts of conscience.
7. The cause heard from beginning to end by the same judge: he, by whom the evidence has been collected, deciding upon it the instant the collection is completed. Division of jurisdiction (a few cases excepted for special reasons) performed purely on the geographical, not on the metaphysical (or say logical) principle. No such distinction, as between pleas of the crown and common pleas; between law and equity.
8. No decision, but upon appropriate grounds; viz. on the joint consideration of the law (the article of substantive law in question) and of the evidence:—of the tenor of the law, where it has a tenor, as in the case of real, i. e. statutory law: of the purport, i. e. supposed purport, as in the case of imaginary, sham, fictitious, i. e. jurisprudential law.
9. No decision, but upon the merits, as above.
10. Not a syllable ever received from any person, witness or party, vivâ voce or in writing, without a security for veracity, equivalent to that which has been attached to the ceremony of an oath, or to whatever is provided in the case of an extraneous witness.
11. The general nature of the plaintiff’s demand, and of the grounds on which it rests, in respect of title, in point of fact as well as law, consigned, as far as consignable, to printed forms: and so in regard to the defence: the allegations individualized, by names, places, times, &c., inserted in the blanks: as in the forms provided by divers statutes, and those given in Burn’s Justice: the demand, viz. the payment or other service demanded at the charge of the defendant through the intervention of the judge, and the ground or grounds of the demand, in respect of title (events or situations, collative of the right) on the one hand, and (the defence not consisting in mere denial) the grounds of the defence in respect of counter-title (events or situations, collative of the defendant’s right) bearing reference to corresponding articles of the substantive branch of the body of the law, by which such effects are given to such events and situations as above: the substantive branch of the body of the law being so organized, as to qualify it for being made the subject of such reference.—N. B. Reference thus made to the tenor of the law, supposes the rule of action to exist in the shape of real, not of sham law.
12. Means of securing forthcomingness, on the part of persons and things, for legal purposes, provided on an uniform and comprehensive plan, adapted to the advances made by the age and country in the arts of life: of persons, whether in the character of parties or witnesses: of things, whether in the character of subjects of property, and as such portions of the matter of satisfaction, as for injury, &c. or sources of evidence: with diversities, adapted to the condition of the person, the nature of the thing, the purposes for which, in each instance, the forthcomingness is requisite.
13. The parties once met in the face of the judge, a plan of intercourse settled between them, to continue so long as the suit continues:—the intercourse to be carried on, in the promptest, least expensive, and most certain mode, that the state of society at the time affords: the arrangements of the letter-post accordingly adapted to judicial, as already they are so conveniently adapted to commercial purposes.
In regard to notice, sole question, received or not received? If not received, the failure, is it the result of pure misfortune, or of blame? If of blame, on the part of whom?—of him from whom, or of him through whom, it should have been received?
14. Neither time nor place exempt from the remedial power of justice:—exemption none, on any other ground than this; viz. that, in the individual case in question, the vexation, necessary to secure forthcomingness, would be an evil, preponderant over the evil attached to the failure of justice.
15. No incidental application to the judge, but by the party himself on whose behalf it is made:—the testimony on which it is grounded, being delivered, as in other cases, vivâ voce, to the judge, or in the form of affidavit evidence: but in this form, only where the ground of the application comes within some case in frequent occurrence, and as such provided for by printed forms:—the affidavit-maker (deponent) remaining subject to examination in the vivâ voce mode, with or without the previous intervention of the epistolary mode (as per article 3.) The demand for incidental applications, being mostly factitious, fabricated under the technical system, by blind fixation of days, and so forth, will mostly be anticipated, by the explanations, produced of course, by the initial meeting coram judice.
16.Language of the instruments as familiar as possible: composed, as far as possible, of words in ordinary use: terms not in ordinary use, employed as sparingly as possible, and then never without explanations composed of terms in ordinary use.
17.Truth, unremittingly and exclusively sought for:—truth, the whole truth, and nothing but the truth. Falsehood, from no person, on no occasion, wilfully endured, much less uttered, by the judge.
Corresponding Devices of Technical Procedure.
1. Parties excluded, from first to last, as effectually as possible, from the presence of the judge: in English practice, not admitted till the trial or other ultimate hearing: nor then, but because the court being open to individuals in general, parties may, if they please, come in with the rest:—an exclusion thus put upon that species of evidence, which, in respect of its source, is in general most instructive, and would most frequently supersede the necessity of having recourse to other evidence, putting an end to the suit within the same day that gave commencement to it. Uses of the initial meeting, as well for prevention of delay, vexation, and expense, as for security against mis-decision, stated in detail.
2. Abuse of writing, pushed to the greatest endurable length:—in English practice, in respect of discourses, delivered in the name of the parties (see articles 10 and 11;) in Scotch practice, in respect of additional discourses, delivered (as in case of decreets) in the name of the court, containing useless repetitions, in tenor or purport, of discourses already delivered in the name of the parties: the abuse always carried to the same excess, without regard either to the importance of the cause, or the capacity of the parties to bear the expense.
3. Testimony received, in some cases, when it could not be helped, in the best shape, as on jury-trial, in English practice: but in others, in various inferior, but (to the partnership) profitable shapes, to the exclusion of the best shape; ex. gr. 1. Answers (in English equity) ready-written testimony, extracted from a defendant, by interrogation administered by the plaintiff’s lawyer, in the epistolary mode alone, when in the vivâ voce mode it might have been extracted with incomparably less delay, vexation, and expense, as well as better security against deception and consequent misdecision. 2. Depositions, i. e. testimony collected in the Roman mode (pursued in English equity, ecclesiastical, and admiralty practice; in Scotch practice, as well as that of the continent of Europe, as the ordinary mode;) collected vivâ voce, per judicem ad hoc, in secreto judicis, without counter-interrogation ex adverso; and thereupon the tenor, or purport, real or pretended, entire or castrated, pure or interpolated, consigned to minutes, with lawyers’ profit, increasing with their length. 3. Affidavit evidence, i. e. testimony ready-written, not subjectible to counter-interrogation, from any quarter or in any shape: in English practice, received, to the exclusion of every better shape, in every instance in which it was in the power of judges to receive it in this bad shape; viz. in bankruptcy petition causes before the chancellor, and in motion causes, principal and incidental (see article 15,) in all the courts: with lawyers’ profit, as above.
4. Tribunals put out of reach; viz. by the immoderate extent given (and in great measure by powers usurped by the metropolitan judges themselves) to the geographical field of jurisdiction of the metropolitan courts; partly for the purpose of rendering the burthen of attendance intolerable, and thereby forcing suitors into the hands of the professional members of the partnership, partly for giving in this way a forced increase to the multitude of profit-yielding suits. Instruments of usurpation, in English practice, pone and certiorari; in Scottish, bills of advocation. In both countries, primary jurisdiction thus usurped, in direct contempt of still existing acts of the legislature.
5.Blind fixation of times by general rules, excluding all regard to individual exigencies, in respect of nature and quantity of business to be performed, diversities of distance, &c.;—of times, not for personal appearance of parties (that being excluded,) but for exhibition of written instruments, and performance of other operations, by hireling representatives, connected by a common interest with the judges. Sinister use and objects of the fixation; necessitating applications for dispensation (as per article 15,) making business in that shape; creating occasions and pretences for nullification, as per article 9.
6. Sittings at long intervals; ex. gr.: terms, with intervals of from a few weeks, to almost five months: circuits, with intervals of six or twelve months; with no more than a few days, or a single day, allowed to a place, whatever may be the quantity of business.—Sinister uses—creating delay, to sell to the mala fide suitor; giving him an interest in availing himself of the principle of nullification, &c.; affording ease and holiday-time for lawyers; necessitating trials at subsequent times, in different modes, with fresh fees.
7.Bandying the cause from court to court, on a variety of pretences, before the decision is given; one judge to collect the evidence—to hear and receive the testimony—without power to decide on it; another judge to decide on it without having heard it. Sinister uses—making business, i. e. occasion for fees; making complication, thence confusion, uncertainty, uncognoscibility, materials for sham science, &c. &c. Examples:—In English common law, causes sent from King’s Bench, Common Pleas, or Exchequer, to Nisi Prius, or Assizes, and back again: in Equity, from Chancery, or Exchequer, to town examiners’ office, or country commissioners, and back again: and from the superior to a subordinate judge:—In Scottish practice, vibrations between the provincial courts and the metropolitan; and in the metropolitan, between outer and inner house: in both, as well as in the provincial courts, between the deciding and some evidence-collecting judge.
8. Decision without thought, and upon mechanical principles: a consequence, and sinister use, of blind fixation of times; the judge knowing nothing of the cause, nor of the grounds of the decision to which he lends his authority: the party ruined, because his lawyer failed to comply with an intimation impossible to be complied with, or never made: pretence, the presumption that the party on whose side the failure is, is in the wrong: whereas, under the load of factitious expense, compared with the pecuniary faculties of the bulk of the people, inability through indigence is a cause much more probable. Imprisonment for debt, on mesne process, that is, before judgment, for an unlimited time, perhaps for life, one of the exemplifications of mechanical judicature: the judge, with his profit upon the jail, and upon the instrument of arrestation, sanctioning it by his signature; refusing to see either party, for fear of being obliged to see, either that there is no ground for this affliction, or no necessity for it: while, under natural procedure, a justice of peace, having no profit on any jail, never subjects a man to any such affliction, but for a limited time, nor without seeing both parties, and thence satisfying himself on both these points. Outlawry, another instance: any man, who is abroad, consignable to ruin, for non-compliance with a demand, of which it has been rendered impossible for him to be apprised: his property a prey to professional and official men, to the number of a score and upwards.
9. Principle of nullification; decision on grounds avowedly foreign to the merits:—a mere cloak for iniquity, and that a threadbare one, in every application made of it, the suitor punished for the failure, real or imaginary, of his lawyer. Sinister uses, making two causes out of one:—encouragement to malâ fide suitors, never to regard the worst cause as desperate:—arming judges with an instrument of arbitrary power: sufficient of itself to render the supposed checks illusory:—keeping up complication, confusion, uncertainty, uncognoscibility, matter of sham science, &c. &c.
N. B.—The use and benefit of this device carried, under the English branch of the technical system, to an extent altogether without example in any other, and in particular in the Scottish.
10.Mendacity licence;—to parties on both sides, a general permission of falsehood, granted by the judge, to extend so far forth as may be necessary to the giving birth and continuance to malâ fide demands and defences:—for this purpose, by a distinction purely factitious, allegations distinguished into pleading, and evidence: the licence granted to pleadings, denied to evidence:—in English equity practice, the licence withdrawn, but from the defendant’s side alone, for the purpose of giving birth to such suits as could not have been instituted, but on the prospect of his evidence: the permission of mendacity, backed to a great extent by compulsion, in both branches (law and equity) of English practice:—in that, and to a greater extent than in any other, the licence granted, moreover, by judges to themselves; and acted under (as in judicial writs and records), and to a vast extent, by assertions which, when they cease to work deceit and injury, do so by accident only, and in so far as their falsity has become too notorious to be any longer productive of this effect.
11. Pleadings, in writing, at common law, called special pleadings, whenever the reply, called for by the plaintiff’s declaration, is not understood to be comprisable under one or other of the four or five excessively abridged expressions, called general issues; altogether void of meaning, but by reference to demands, grounds of demand, defences and grounds of defence, never indicated: expressions imperfectly and discordantly understood by lawyers themselves, rendered completely and manifestly unintelligible to everybody else. Under favour of the mendacity-licence, the instruments so contrived, as to give little or no information, or worse than none: principal ingredients, falsehood, nonsense, and surplusage.
In default of the information, which the plaintiff’s declaration and the defendant’s plea thus profess and fail to give, a supplemental set of pleadings, invented within the last half-century, and employed, though not to an extent equal to that of the deficiency, under the name of particulars:—adding of course to delay, and profit-yielding expense.
12. Means of securing forthcomingness, subject to endless diversifications, drawn from the style and title of the court, and other irrelevant sources:—in detail, frequently oppressive; in the aggregate, scanty and inadequate:—forthcomingness of written evidence, for example, vainly aimed at, through a course of months or years (as by a suit in equity,) when it might be effectually secured in as many hours, by a warrant from a justice of the peace.
13. Chicaneries about notice.—In regard to notice, two objects:—viz. that he who should have received it, may not receive it, and thereupon suffer as if he had received it: and that, when conveyed and received, he who conveyed it may suffer as if he had not conveyed it. Ineffectual modes of conveying notice prescribed in the first instance, that business may be made by application for effectual ones. Modes of conveying, or pretending to convey notice, diversified ad infinitum, mostly on irrelevant grounds, such as the style and title of the court, and so forth. Question, not whether received or not, but whether good or bad:—not the less good for not having been received: not the less bad for having been received.
14.Asylums, local and chronological; with diversifications, grounded on the diversity of courts and other irrelevant circumstances:—the power of securing obedience to justice, confined in this case to the day-time, extended in that case to the night-time: confined in this case to week-days: extended in that case to sundays: one part of the empire rendered a place of security and triumph, to the delinquents of another.
15.Motion business;—all made-business:—business made by and for Judge and Co., by the exclusion of parties from the presence of the judge.
Money received for motions of course, so much money received on false pretences.
Occasions for motions not of course, made by defaults, real or pretended, the result of the blind fixation of times, seconded by the principle of nullification.
Motions not of course, always grounded on testimony, delivered in no other than the affidavit shape, and when opposed, and with counter-evidence, opposed by evidence in that same and no other shape. Motion business, including incidental motions and motion causes, almost peculiar to English practice.
16. Use of jargon; principle and practice of jargonization. Jargon, its shapes:—foreign language, obsolete language, technical language undefined, nonsense, fiction, ordinary language perverted:—its uses, to produce—1. On the part of the law, uncertainty, uncognoscibility, matter of sham science; 2. On the part of the non-lawyer, conscious ignorance, thence consultation and advice (opinion-trade,) or misconception, thence misconduct, litigation, lawyers’ assistance or vicarious service, with advice at every step; 3. On the part of the legislator, conscious ignorance or experienced misconception, thence disgust, or groundless awe, propensity to regard reform as hopeless, or undesirable; 4. In favour of the professional lawyer, monopoly of the faculty of succeeding to judicial offices:—as if a monopoly of the faculty of serving as boarding-schools to girls, were secured to brothels; or, of carrying on wholesale trade, to swindlers.—Analogy between jurisprudential and other jargons—astrology, palmistry, alchemy, thieves’ cant, &c.
17. Use of fictions; in the character of grounds and reasons. Fiction (in law) a wilful falsehood, uttered by a judge, for the purpose of giving to injustice the colour of justice. General uses of fiction to the partnership, (whether the decision grounded on it be otherwise lawful or unlawful) its uses in the character of jargon (as per article 16,) and (by holding up the vice of mendacity in an honourable light, in the character of a necessary instrument of justice) its efficacy, in the way of example, in corrupting the morals and understanding of the people. Special uses, the particular advantage, compassed on each particular occasion, by the injustice of which it is made the instrument.—Ex. gr. stealing conveyancing business, as, under English law, in the case of common recoveries; stealing jurisdiction, as in the case of the battle royal among the Westminster-Hall courts. English judicature polluted with this vice, to a degree altogether without example in the judicature of Scotland, or any other country upon earth.
18. Magnification of jurisprudential law, the work of judges, pursuing the partnership interest:—this imaginary law, represented as entitled to more respect than real law, the work of the legitimate legislator, pursuing, after appropriate and comprehensive inquiry, the interest of the people. Blackstone’s at tempt to pass off upon the people this sham law, as their work, sanctioned by their consent.
19. Contempt manifested, on all favourable occasions, towards real law:—sometimes by downright disobedience; sometimes by discourses, undervaluing it, and speaking of it as if less entitled to popular attachment and respect (as per article 18) than jurisprudential law.
20.Double-fountain principle:—a contrivance for exercising arbitrary power, by employing or rejecting, ad libitum, this or that one of the instruments of injustice above mentioned. Ex. gr. excluding the parties (as per article 1,) or admitting them:—receiving testimony in a bad shape (as per article 3,) or in a good one:—under the notion of stare decisis, applying the principle of nullification (as per article 9,) or, under the notion of liberality, refusing to apply it:—pursuing the fiction (as per article 17,) or refusing to pursue it:—in the case of an article of statute law habitually disobeyed, (as per procedure of the Scottish Court of Session passim) continuing or ceasing to disobey it.
DELAY AND COMPLICATION TABLES.—SHEET II.
TABLE I.—NATURAL SOURCES (a) of COMPLICATION (b) and DELAY in JUDICIAL PROCEDURE:—exhibiting the Causes of those Evils, in so far as they are natural, (c) necessary, (c) unavoidable; (c) with Examples, showing some of the principal Cases referable to the respective Sources.—TABLE II.—MISCHIEFS of DELAY.—TABLE III.—CAUSES of FACTITIOUS (c) DELAY:—containing a brief Indication of some of the principal Causes of the factitious, super-abundant (c), unnecessary (c), and avoidable (c) Delays, fabricated (c) under the TECHNICAL or FEE-GATHERING System of Procedure—in England, Scotland, and other Countries.—TABLE IV.—DISPUTABLE CAUSES of DELAY: i. e. of which it may be Matter of Dispute, whether, or how far, they are avoidable (c) or unavoidable. (c)—TABLE V.—BLACKSTONE’S FALSE CAUSES of DELAY; viz. Circumstances falsely stated by him as Causes of those English Delays, which, in truth, are factitious and avoidable, but by him are falsely styled “unavoidable.—TABLE VI.—Uses of the foregoing Tables.
(Not given as correct in the Figures, but as) calculated to assist Conception, in estimating the Value of the Danger of ultimate Injustice by Misdecision or Failure of Justice, Parcel of the contingent Mischiefs of Delay.
3. Thence Loss of Right, in one case out of every 18.
4. Probable duration of Defendant’s life, on the same computation, 18
5. Thence, where the right of the Plaintiff perishes with the life of the Defendant, loss of right in another case out of every 18.
6. Note the number of instances, in which, on one side or other, there exists some individual, whose testimony is to such a degree material, that the result of the Deperition of it would be the loss of the cause, on the part of that one of the parties, in whose favour it would have operated. Let the number of suits, (or rather causes of suits,) so circumstanced, be supposed to be, to the whole number of suits, (or rather of cases affording a just cause of suit, or in case of suit commenced, of Defence,) as 1 to 2: and, since this chance of Misdecision has equal place on each side of the suit, say, as 1 to 1. This would give loss of right, on one side or other of the suit, in another case: making, with the two former, in three cases out of every 18.
7. Of the other Contingent Mischiefs, the value is altogether out of the reach of calculation. But, as the probability of loss of right by death of a material witness (as per No. 6,) seems to be taken too high—and as the right of the Plaintiff does not (as per No. 5,) in every case (under English jurisprudence) perish with the life of the Defendant;—to compensate for the two excesses, let the whole mass of uncalculable Contingent Mischief, as above, be struck out. This will give, for the whole value of the Contingent Mischief of Delay, ultimate injustice, viz. in the shape of misdecision or failure of justice, in 1 out of every 6 cases of just cause of Demand or Defence.
Causes of Factitious Delay;
1. Refusal to receive, at the hands of the Plaintiff, in person, or of Plaintiff and Defendant, at the outset of the cause, those explanations, by which all ulterior proceedings might, in most instances, be saved, and in all cases abridged.
2. Terms established, with intervals of Delay, (i. e. of denial of justice) between term and term, as far as five months; and Circuits, with ditto of six or twelve months.
3. Fixed Intervals, between operation and operation, of the same length in each individual suit, and on each individual occasion; as well those which require least, as those which require most:—with ulterior intervals, granted on demand, without inquiry into the ground.
4. Under the name of Pleadings, and various other names, successive strings of written allegations, not on oath, admitted on each side: the strings succeeding one another at determinate but enlargeable intervals as above: thence Delay, on grounds known to be false.
5. No Evidence, on which a decision can be grounded, received, till after the string of allowably mendacious Allegations on which decision cannot be grounded, has been exhausted on both sides.
6. By the swallowing up of the Local Judicatures, and the enormous extent thereby given, by the Metropolitan Tribunals, to their own geographical field of jurisdiction, the greater part of the suitors subject to it thereby thrown to a proportionably enormous distance, in point of place: thence a proportionable distance, in point of time, between operation and operation, as often as communication is necessary.
7. Between a string of Questions, that ought to be answered instantly, and the Answers, Delay sold at a fixed price, in successive intervals of six, four, and three weeks,(b) in addition to the first Delay of five months as per No. 2; with renewal of Delay upon every successive string of questions.
8. An Inquiry, on which no ultimate decision can be grounded, carried through, in order to ascertain whether another, on which an ultimate decision may be grounded, shall commence.(c)
9. The same Suit, regularly and without special application, bandied to and fro,(d) between court and court.
10. On special Application, with or without special ground, or even without application, at the option of a party, a suit that has been commenced, and even terminated, in one court, removed(e) with, or even without, complaint of misdecision into another court.
11. On special occasion, Question of Fact or Law, sent out of one court to be tried in another, and then sent back again for decision.(f)
12. A Cause being begun, instead of going on with it till finished, minute portions of successive days allotted to it, the Judge paid for each day: and, that the fees may be tripled, Attendance not enforced till the third.(g)
13. After a Decision pronounced, the effect of it suspended, by Delay sold in another Court(h) ; sold to every one who will buy it; sold by Judges, not one of whom ever bestows a thought upon the cause.
14. An additional Cause, (called a Cross-Cause), with its separate Delay (as per No. 7), made necessary to the giving effect to the counter-demands on the Defendant’s side, and even to his Defence against the Plaintiff’s demand, in so far as the testimony on the Plaintiff’s side, in favour of the Defendant’s side, is necessary to such defence.(i)
15. Evidence of no kind suffered to be extracted from the lips, the pen, or the hand of an extraneous witness, till after the evidence of which the parties, whether on the Defendant’s or Plaintiff’s side, are respectively the sources, has been completely extracted, and the stock of Delay attached to the extraction (as per Nos. 4 and 14) exhausted.(k)
16. A second Suit, with its separate Delays, made requisite, for the Proof of Facts, sufficiently, though incidentally, proved in a former suit.(l)
17. Proceedings nullified on pretence of Informality (i. e. non-compliance with Rules, pre-announced or not pre-announced,) and, in either case, scarce ever so much as professing to bear any relation to the merits: nullified(m) , and thence required to be repeated, and this at any stage of the suit, from the first to the very last.
18. Proceedings set aside, for non-conformity of the Evidence to the Allegation; thence a fresh suit, with its separate Delay, necessitated;—instead of allowing a fresh allegation, with its corresponding demand, to be shaped upon the evidence; allowing time for counter-evidence, only in the event of its being needful, and as such demanded.(n)
19. Proceedings considered as dead or asleep,(o) and thence required to be repeated or awakened, on the intervention of fresh parties or fresh interests: on the ground of any one of a variety of collative (title-creative) events, such as death, birth, or marriage; or on the ground of intermission of proceedings.
20. Necessitating or allowing Instruments (written instruments,) useless in toto(p) : thence the operations performed in relation to those instruments, and the Delay (the factitious Delay) consisting in the quantity of time consumed in those operations.
21. Necessitating or allowing Instruments, unnecessarily elongated;(q) with the corresponding operations and Delays.
22. Interposing an indefinitely-protracted series of incidental (interlocutory) Decisions, between the commencement of the suit, and the ultimate decision—the final judgment or decree.
23. Allowing, after each decision, whether ultimate or interlocutory, Remonstrances to be made (called Representations,(r) or Reclaiming Petitions) and in each instance, without any ground, other than what had or might have been adduced, antecedently to the decision so remonstrated against.
24. Instead of causing to be delivered up to the adverse party a duplicate, or copy, of an Instrument on which proceedings on his part are required to be grounded, suffering a single Exemplar to be lent out to him, only for a time,(s) that, by his default, Delay may be generated, and fresh operations, with fresh fees, necessitated.
25. Crowding together into one Court an inordinate(t)Multitude of Judges, each under an equal obligation to make and communicate his reflections: thence (besides the other Mischiefs,) necessitating Delays upon Delays, for reflection and debate:—Delays for reflection commensurate to the pace of the slowest mind.
26. Out of the multitude of Judges, deriving a reason or a pretence for printing: thence (besides the expense,) adding to the Delays of the head and pen, (as per Nos. 20 or 21,) those of the press.
27. Heaping up stage upon stage(u) of Jurisdiction, in the way of Appeal, with their respective masses of Delay; different numbers of stages, in different sorts of suits, without regard to the subserviency of such multiplication and such diversification to the ends of justice.
28. Affording no Remedy—by the exercise of the superintending authority of a superordinate Court, or otherwise—to such Delays in a subordinate Court, as, over and above those necessitated or allowed by the system, are liable to be produced by misconduct on the part of the Judge.
Disputable Causes of Delay:
i. e. Productive of such Delay, as may, in the prudential sense, be unavoidable, or avoidable, according to circumstances.
1. Time taken for reflection(a) by the Judge.
2. Multiplicity(b) of Judges.
3. Appeal;(c) together with the other modes, in which the cognizance of a suit may be conveyed from a subordinate to a superordinate Court.
Blackstone’s false Causes of Delay:
Viz. Circumstances falsely stated by him as causes of English Delays, which Delays, though in truth (as per Table III.) factitious, and therefore avoidable, are by him falsely styled “unavoidable.”
5. Extent of populous Territory.(b)
Uses of the preceding Tables.
In so far as, on this or that occasion, the quantity of the evil of Delay (extra Delay) actually having place, is not superabundant but necessary—(the result either of physical or prudential necessity)—to minister to its justification;(a) and thus prevent it from being unjustly charged, as matter of reproach, either upon the system of procedure or upon the Judge, or other persons concerned in the administration of justice under it.
In so far as the evil is not necessary, but the factitious result, either of artifice, imbecility, or negligence—on the part, either of the authors of the system, or of any person concerned in the administration of it for the time being—to lead men to the clearer conception of the causes of the evil,(b) and thence of the means of cure.
In so far as the evil, not being necessary, is liable to have for its cause misconduct, in any shape, on the part of the Judge—to afford the basis of a system of registration,(c)(recordation or book-keeping), by means of which, in whatever instance it happens, that the evil actually takes effect from that cause, the true cause of the evil, as well as the existence of it, shall stand exposed to view: and, by that means, to oppose a constantly resisting obstacle to its existence.
To hold up to view the intimate connexion that subsists, between the evil of Complication in the character of a cause, and the evil of Delay—superabundant Delay, with its endless train of evils(d) —in the character of an effect:—and this to the end that, for the reduction of the evil of Delay within its narrowest limits, it may be visible to the legislator, how necessary it is to the fulfilment of the ends of justice, that all superabundant Complication be struck off; and in particular whatsoever portion of it may have been factitious, the work of Judge and Co., executed in pursuit of the sinister ends of judicature. [See Letter I.]
USES V. & VI.
Practical uses applicable to the conduct of individuals, in their character of subjects, exposed to the misfortune of becoming litigants. 1. As to such part of the actual Delay, as the influence of the causes of that portion which is unavoidable, extends to, to submit to it with resignation and tranquillity, as a mischief out of the reach of remedy. 2. On the other hand, as to whatever portion of extra Delay is found to be referable to the influence, not of those causes, but of causes capable of being made to cease,—viz. the sinister activity or negligence of men in power; the result of corruption, or indolence, or imbecility;—not to submit any longer with silent resignation; but, with that temperateness, and respect for the constituted authorities, which becomes honest men, to become suitors for relief at the throne of sovereign power—the fountain of all relief, as well as of whatsoever is administered under the name of justice.
Should the following sheets be found to present any claim to attention, it may perhaps be matter of convenience to you Lordship to see, at this early stage, and at one glance, the general result of the inquiry:—My Lord, it is this—
1. That, so far as concerns the breaking down of the court into sections (as per resolutions 1, 2, 3, 4,) the result, in respect of the ends of justice, and the interest of the people in the character of suitors, is all pare benefit:—but so is it to the law-partnership.
2. That what concerns the mode of pleading (as per resolution 5,) being nothing more than a repetition in terminis of what has been law these twenty years, as far as an act of the Court of Session could make it so, promises no better fruit; and that the profession, if they have not much to hope, have quite as little to apprehend from it.
3. That, in Scotland, of the proposed introduction of jury trial in civil cases (as per resolutions 6, 7, 8, 9,) the probable mischief, in the shape of increase of delay, vexation, and expense, seems greater than its probable good effect in the shape of a security against misdecision: that the proper stage for that species of judicature is that of appeal, after a vivâ voce explanation, upon oath, between the parties, and decision thereupon; and not after a series of written pleadings, not upon oath, in the first instance: always under the supposition—(learned lords and gentlemen—but, good my lord, do not join them—will smile at the simplicity of it)—that, on the demesne, hitherto, on account of the richness of the soil, reserved for the chace of lawyers’ profit, the interest of the whole community may be thought fit to be cultivated, in preference to the interest of that small but domineering part of it, and the ends of justice pursued, in preference to the ends of judicature.
4. That the other arrangements proposed, apparently in the character of remedies against delay, vexation, and expense (as per resolutions 10, 11, 12, 13, 14, 15,)—viz. (optional substitution of appeals to advocations and suspensions, interposition of a Chamber of Review between the Court of Session and the Lords, prohibition of appeals against interlocutors, allowance of penal costs in the House of Lords, and retrenchment of superfluous judicial writings,—bid fairer, when taken together, for increasing than diminishing the aggregate mass of that fund of suitors’ misery and lawyers’ profit: and that the specific remedies, which could scarce have failed to present themselves to an experienced eye, have with congenial delicacy been put aside, in consideration of their too extensive and too drastic efficacy.
5. That of the system of disorder, to which the plan upon the carpet applies its powder of post, there is not any part that does not admit of a perfect cure: which cure consists in nothing more than an extended application of remedies that, as already submitted in the preceding pages, have over and over again received the sanction of the legislature: and that, in that part of the field of procedure, to which those efficient remedies have not yet been applied, there is nothing that can render them less applicable to it, than to those to which, with so complete though untrumpeted a success, they have been applied already.
Before I close this introductory letter, I will beg leave just to hint at a circumstance, which, to a statesman of your Lordship’s discernment and experience, cannot, I think, but have suggested a suspicion at least, not unfavourable to the conceptions above submitted. Among so large an assemblage of acute and vigilant minds, whose interests are so materially concerned, your Lordship has received marks of satisfaction from many—of dissatisfaction, I believe, from none. Now, that Titius or Sempronius should originate, or even, without the merit of origination, support a measure, by which, to a limited amount, his own interest, in the gross sense of the word interest, would be prejudiced, is by no means without example: and that persons of this generous frame of mind are even now to be found at no great distance from your Lordship, the present parliament has already testified. But that any body of men, especially so large and domineering a body, should, without the pressure of necessity, manifest either active approbation, or so much as anything like patient acquiescence, under any measure, which by such acceptance would be converted into a self-denying ordinance, is, I am inclined to think, absolutely without example, certainly out of the ordinary course of human nature. Yet the plan has been in their hands these six months, and such is the countenance generally, if not universally, turned to it by learned gentlemen: they admire, though as yet in the air, the beauties of this New Jerusalem: they congratulate one another, and even in print, on the fresh prospects opened to them: and, under these circumstances, no wonder that the spirit of the union, that younger brother to the original contract, remains still inviolate. But, should any plan present itself, pursuing, upon the only terms on which, to any considerable extent, it could be pursued, the interest of the whole community—I mean, at the expense of this predatory part of it—no sooner would any such plan excite an apprehension of its acceptance, than the union would be no less in danger than the church at one time used to be. Such is the discovery a man might venture to predict without the gift of prophecy: and that without any other reserve than this, viz. that as there are some predictions which by invitation will sometimes produce, so there are others which by shame will sometimes prevent, their own accomplishment.
To place their system under the protection, and the country beyond redemption, under the tyranny of dead men, legislating on a state of things, of which no conception had ever presented itself to their minds, is among the standing resources of all those intestine formentors of the body politic, whose prosperity depends upon the preservation of abuse, in all or any of its forms, against the attacks of the probe, or the incision-knife, in the reforming hand.
Would your Lordship wish to see, and in a still clearer and stronger point of view, the signification and value of this quietism? Compare it, my Lord—contrast it with the sort of countenance shown to the act (4 G. II. c. 26) for consigning to the language of the people the tenor and history of those proceedings by which their lives and fortunes are disposed of. My Lord, the opposition it underwent from learned lords and gentlemen,—underwent in both houses, was ananimous. So, at least, Chandler in his account of the debates assures us: Chandler in terminis; and with Timberland for his support.
By the English particians of those days, the same sense of injury was felt, as was felt at Rome by the learned lords and gentlemen of that time, when the book of procedure, so religiously kept under lock and key, was stolen and published by the arch-thief Flavius,* in such sort as forced them to compose another, placing it under better guard: in the one case, the rule of action was locked up bodily in a box, in the other, it was locked up spiritually in a dead language:—the same sense of injury, that is felt by the same learned persons, and as constantly, howsoever covertly, testified, by some of them, as often as, by a wicked and jury-less court of conscience act, the possibility of obtaining justice in certain cases has been extended to this or that other minute portion of the people:—the same sense of injury, in a word, as was felt by the shark, who carried off one of Sir Brook Watson’s legs, at the thoughts of being obliged to leave the other in its place. A shark is still a shark, in Britain as at Rome, after the Christian æra as before. The ocean breeds them with triple rows of teeth; the technical system with teeth not less sharp, and bushy manes like sea-lions. My Lord, when a shark is seen wagging his tail in the wake of a ship, it is a sign (so the sailors say) that there is prey in preparation for him in the belly of it.
By means of the above key, compressed and imperfect as it is, should the execution have fulfilled in any degree the wishes and humble endeavours of the workman, your Lordship may perhaps find it rather easier than at first, to come at the real tendency and probable effects, of the plan already put into your hands by the learned reformer: such at least is the object of the attempt I am thus making upon your Lordship’s time.
In the sequel of these pages I propose to myself, in the distribution of the parts, to pursue the following order:—
Part I. The proposed plan, as delineated in the resolutions, examined,—i. e. confronted with the ends of justice. Title used for shortness, Proposita.
Part II. Indication of a few of the most prominent abuses, and other imperfections, observed on the face of the existing system; being such as appeared capable of being remedied without any material change in its technical character, but are not noticed in the resolutions—Omissa.
Part III. Outline of a different plan of reform, grounded on the natural system: followed by observations, designed to operate in support of it, and an indication of certain auxiliary measures, designed principally to promote the efficiency of the natural system, as above applied, but not altogether inapplicable to the existing system, in its present technical state. Title, used for shortness, and for the mere purpose of reference, casting itself upon your Lordship’s indulgence, for its unintentionally dictatorial garb, Facienda.*
[(a) ][English and Scotch Delays.]—For further particulars, though still very birefly indicated, see Letter I. Devices of the Technical System.
[(b) ][Six, four, and three Weeks.]—The Times successively allowed, of course, on so many Motions for Time to Answer in Equity practice; and this not the Conclusion of the string of Delays, nor even the Commencement of it.
[(c) ][Commence.]—Examples—In English practice—Motion for leave to file an Information—Motion for a Mandamus—for a Certiorari.
[(d) ][To and Fro.]—In English Common-Law procedure, the cause sent out of the King’s Bench, Common Pleas, or Exchequer, to the Assize Court, or Nisi Prius Court, to be tried in the way of Jury Trial, and then received back again for judgment, and ulterior proceedings; the like, in the case of incidental proceedings, before a single Judge of each Court at his Chambers, or before the subordinate sort of a Judge, called a Master, Prothonotary, &c. In English Equity procedure, the like bandying between the Principal Court, viz. that of the Lord Chancellor, the Master of the Rolls, or the Exchequer, and that of the Subordinate Judge, the Master.
[(e) ][Removed.]—By Bill for an Injunction, at the option of the Defendant, a suit removed at any stage from a Common-Law Court into an Equity Court:—by Certiorari, from Inferior Courts into Westminster-Hall Courts, under the diversifications expressed in the text, and others out of number.
[(f) ][Decision.]—By a Court of Equity into a Court of Common-Law, for an Opinion on the Question of Law; so, on the Question of Fact, with bandying, as per No. 9; in which case the Equity Court is said to direct an issue.
[(g) ][Third.]—The practice in the Court of Chancery, before a Master, by whom all matters of account are settled, and the bulk of the business of all sorts done:—Days successive, but not immediately successive:—Order to proceed de Die in Diem, a rare interposition, not to be obtained but on special ground, and by an incidental suit (called a Motion) on purpose.—[See Indications respecting Lord Eldon, § 2.]
[(h) ][Another Court.] viz. the Exchequer Chamber; a Court doing no other business; eight of the twelve Judges sitting, or supposed to sit, in a Court so called, on pretence of correcting Errors pretended to be committed by the four Judges of the King’s Bench; or the King’s Bench, fee-gathering in the same way, on pretence of correcting Errors in the Common Pleas; in all but 19 causes out of 1809, the falsity of the pretence matter of notoriety to all the Judges—quantity of Delay thus sold in each cause, about a year—price, upon an average of Exchequer Chamber and King’s Bench taken together, upwards of £50, shared among the Lawyers; Chief-Justice of the King’s Bench’s share upon the Delay sold out of his own shop, £7: 16: 6. Total of income derived from this branch of the trade in 1797, £1134: 15: 6, paid to a clerk, and squeezed out of him by the Judge. Number of years of Delay annually thus sold, upon an average of three years, ending with 1797, 600: Annual profit thereupon to the Judges and other Lawyers, about £30,000. For the costs, see Palmer on Costs, pp. 155 to 164; 5th edition. For the other particulars, see 27th Report of Committee of Finance, pp. 12, 27, 272, anno 1798, anno 1807. The abuse continues in full vigour.
[(i) ][Such Defence.]—So in every case in a Court of Equity. In a Court of Common Law, neither party can obtain the testimony of the other on any terms.
[(k) ][Exhausted.]—In Equity practice, in certain cases to a small extent, a premature and provisional Examination (Examination de bene esse, Examination in perpetuam rei memoriam) may be obtained, though not without an additional and unreimbursable expense; in Common-Law practice, not in any case, on any terms.
[(l) ][Former Suit.]—For example, neither in the case of Perjury, nor in that of Forgery, incidentally proved in the course of a suit commenced on other grounds, can the discovery ever be followed up by the ulterior decisions, the ground for which has thus been established. Under this head, Rome-bred Law is less adverse to justice.
[(m) ][Nullified.]—Synonyms, set aside, quashed, declared void, declared bad, arrested, &c. &c. Examples, passim; the enumeration would fill volumes.
[(n) ][Demanded,]—Frequently it is not possible to know before-hand the precise nature of the collative (title-creative) or ablative (title-destructive) Fact, nor therefore of the Allegation, nor of the Demand (species of action) to which the evidence will yield its support. By investigatorial procedure, as in the examination performed in a case of Felony, yes; but this, in a civil case, any more than in a non-felonious criminal case, neither Common Law nor Equity allows of.
[(o) ][Dead or asleep.]—Restorative, in case of palsy or lethargy, in English Common-Law practice, Scire facias in Equity ditto, Bill of Revivor, or Supplemental Bill, in the nature thereof. In Scottish practice, Summons of Wakening, Summons of Transference. At Common Law, in cases to a great extent, the stroke is mortal, the patient irrecoverable. See Table II. Mischiefs of Delay, 8, 10.
[(p) ][Useless in toto.]—Anglice et Scotice, examples passim.
[(q) ][Unnecessarily elongated.]—Anglice et Scotice, all without exception: Superfluity constant: Deficiency, a frequent concomitant.
[(r) ][Representations.]—Ten, eleven, twelve, or more, on the same subject, each with its fee to his Lordship’s clerk, each with a train of dependent instruments and operations; each of which, again, with its fee. The patience of a Lord Ordinary is indefatigable.
[(s) ][For a Time.]—Correspondent phrases—“Given out to be seen;” on the one part; “Borrowing up,” on the other. In English practice, in some instances, when the copy of a Writ is detected [Editor:?] the original is suffered to be seen; but it is neither given out, nor borrowed up.
[(t) ][Inordinate.]—See Table IV. (a)
[(u) ][Stage upon Stage.] In English, and still-more in Scottish procedure, Stages of Jurisdiction, if virtual be included as well as nominal, are extremely difficult to count. By the appellation employed, the number is very successfully disguised.
[(a) ]Reflection.]—In each individual suit, and on every occasion that presents itself in the course of that suit, a certain quantity of Delay will, for the purpose of due reflection, be—in a prudential, and even in a physical sense—necessary and unavoidable.
[(b) ][Multiplicity of Judges.] In this may be seen a cause productive of Delay, (as stated in Letter II.) in a variety of ways; the most obvious of which are—the demand for such a quantity of time to be allowed for reflection, as shall be sufficient for the slowest mind in the company; and the demand for such ulterior quantity as may be required for discussion and debate.
[(c) ][Appeal, &c.] Of this institution, the operation, in the character of a cause of Complication, as well as Delay, is alike obvious and indisputable.
[(a) ][Liberty, Property, Civility.] Terms void of all apposite meaning, applicable to the present subject; designed by their vague generality to bewilder—by their popularity to cajole—and, by the false insinuations wrapped up in them, to deceive—his readers: as if it were in the nature of things, that either Liberty, or Properly, or Civility—(whatever be meant by Civility, probably Civilization)—should be served by Delay, which, so long as it lasts, and is not unavoidable, is Denial of Justice.
[(b) ][Commerce, and Extent of populous Territory.] Terms almost equally void of apposite meaning; if they convey any, it is only in so far as it may happen to them to suggest, in a vague way, the idea of Expatriation and that of Exprovinciation, as per Table I.: causes of Non-forthcomingness, and thence of extra Delay, produced not by commerce in general, but by resort to foreign states and distant dependencies.
[(a) ][Justification.] To exhibit the Justification—the quantity of extra Delay having place in the case in question, being ascertained—then, if it be justifiable, and if the enumeration here given of the causes of necessary delay, as comprised under the ten heads set down in Table I. be complete—it will be found to owe its existence, to some one or more of those causes.
[(b) ][Causes of the evil.] See Table III.
[(c) ][Registration.] Mode of Operation of this Remedy. The ordinary quantity, [see Table I. note (c)] which is as much as to say the minimum quantity of delay being marked out; and, by reference to this standard, the meaning of the term extra delay fixed; and a regulation made, ordaining that as often as any extra delay takes place, mention of its existence shall be entered upon the register, together with the cause, or causes, by which it was produced; then, supposing, on this or that occasion, any unnecessary, and thence unjustifiable, quantity to take place, one of three things will have taken place, viz.
[(d) ][Train of Evils.]—See Table II. and Table I. note (c).
[* ]Liv. Dec. 1. lib. 9.—Plin. Nat. Hist. lib. 3.
[* ]The design seems not to have been followed out farther than to the extent of exhausting Part I. Vide Letter V. p. 47.—Ed.