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LETTER II.: PROPOSED DIVISION OF THE COURT OF SESSION. - 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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PROPOSED DIVISION OF THE COURT OF SESSION.
The explanations in my former letter being premised, I proceed to submit to your Lordship in detail my remarks on the plan, as delineated in the seventeen resolutions passed in the House of Lords.
In the present letter, I propose to consider in one group, the four first, the subject of which is the division of the one existing Court of Session into several courts—and the object, the providing at any rate a remedy against delay; and perhaps an additional remedy against misdecision, in so far as these mischiefs may respectively have the multiplicity of judges for their cause. I repeat the resolutions here, to save the trouble of reference:—
“Resolved,—1. That it appears to this committee, that the increase of manufactures, extension of trade, improvements of agriculture, and consequent multiplication of transactions, have varied the nature, and greatly increased the number of suits brought before the courts of law in Scotland, and thence by appeal into this house;
“And that it has therefore become necessary that some alterations should be made in the establishment of the courts of law in that part of the united kingdom, adhering as much as possible to the forms and principles of the laws of Scotland, and maintaining invariably the true meaning and spirit of the articles of union.
“2. That it will greatly conduce to the better administration of justice in the Court of Session, and will be for the evident utility of Scotland, that the said court, instead of sitting in one collective body of fifteen judges, shall sit in such number of separate chambers as may be found most convenient; and that the Lords sitting in such chambers respectively, shall exercise the same functions, and shall enjoy the same authority and privileges, as are now exercised and enjoyed by the whole Lords sitting together.
“3. That in each of the said chambers, one of the judges belonging to such chambers shall preside, such presiding judge to be appointed by his Majesty to the said office, during good behaviour.
“4. That causes coming in the first instance into court as Inner-house causes, may be brought before any one of the chambers, at the choice of the party instituting the suit; and that causes coming into the Outer-house, before any one of the Ordinary Lords of Session, and there decided, may be removed by reclaiming petition, or otherwise, into that chamber only of which such Lord Ordinary shall be a member.”
Substance of the proposed arrangements as follows:—The existing court divided into several chambers, number not yet fixed, each possessing the authority of the whole;—president in each, not removable at pleasure;—plaintiff to choose his chamber.
So far, so good, my Lord.—Reasons uncontrovertible—
1. Benefit of dispatch—Degree of dispatch increasing in certain respects with the number of the chambers.
In how many different ways delay increases with the number of judges—at least when they are understood to lie all under an equal obligation to take an efficient part—(for your Lordships, with respect be it spoken, know how to make these things easy to you) it were almost superfluous to inquire.
Time for settling the opinion of each—thence of the slowest and most accomplished in the science of dubitation: for in a court, as in a convoy, the pace of the whole is regulated by that of the slowest vessel. Think of —, my Lord: and if the whole world could furnish them, conceive fifteen —s. Decorum forbids, notoriety renders unnecessary, the filling up of these blanks.—Time spent in discussions—in bolting out misconceptions, and clearing them up, not to speak of wanderings, and in supporting opposite opinions. This, even where everything is purity, and bona fides. But should a malâ fide suitor have need of delay, and a single judge out of the fifteen be disposed to give it him, then what end of doubts and misgivings, and new points started, and adjournments? But, my Lord, I am trespassing all this while upon your Lordship’s time, and, like the fat man in the crowd, constituting the very nuisance I am denouncing.—I conclude. Benefit of dispatch produced:—Ends of justice served, the collateral ends—prevention of superfluous delay, vexation and expense.
2. Benefit of economy:—saving of delay and expense, by expense of printing struck off:—viz. printing pleadings: for, to the abuse made in this way in England and elsewhere of the art of writing, in Scotland they have found means to add the abuse of printing. Yes, law-presses broken up: at least if the number of chambers (as your Lordship has been stated as inclining to propose) be as great as three. Three chambers give five judges to a chamber: only one more than in our Westminster-Hall common law courts at present; not one more than we had in them in former times: no printing of pleadings in England, nor the want of it ever felt or imagined.
But, my Lord, I am running wild again, and outstripping your learned Reformer in the career of reformation. For, upon looking once more, I find this economy is my own imagination all the while, not his proposition. The printing trade he has indeed noticed, but for what purpose?—for the purpose of encouraging it, not cramping it. For in resolution the 12th, for the use of the proposed new court of appeal at Edinburgh, printing is enacted: nowhere is it repealed.
3. Benefit of competition: viz as between chamber and chamber, among all these chambers. Ends of justice served, all together, collateral and direct. Saving of delay, vexation, and expense; security against misdecision likewise.—Oh my Lord! how straight and how pleasant, when once a man has learnt to travel in them, are the ways of justice!
On the field here in question, in the benefit of competition, my eyes, weak as they are, have served me for distinguishing two branches. One consists in the multiplication of the shops, and the choice given to the customer, that is, to the plaintiff, as between shop and shop: the plaintiff, if he is bona fide—if his wishes are honest, as, in the ordinary state of things those of the plaintiff are, for his own sake picking out the best. So far as this branch of the benefit is concerned, to be satisfied of the reality, and at the same time to understand the value of it, I see no need to look further, my Lord, than to Cocker’s Arithmetic.
The other branch of the benefit consists in the influence of this multiplicity on the disposition and conduct of the dealers. In ordinary trades—in trades not subject to a monopoly, the nature and efficacy of this branch likewise is clear enough. But in the very particular sort of trade here in question, the great law-partnership—the competition so nearly resembling that between the two shops kept by the same cabinetmaker, one in the city, the other in Bond-street—the process for extracting the true value of this branch of the benefit does not appear quite so simple. In some instances, indeed, I think I see a positive value. But in others, if my calculation be correct, the value of it is what the value of x is so apt to be, negative. Think, my Lord, of the competition between B. R. and C. B. and the fruit of it—imprisonment for debt on mesne process; upon the mechanical principle above explained, the judge taking care to see neither party, and to know nothing about the matter, for fear of being obliged to stop a man in his way to jail, and so losing his profit upon the jail, besides so much time, and so many other of his fees.
On this part of the problem, therefore, the calculation being somewhat intricate, and running up into the higher algebra, I will not attempt to trespass on the time of Cæsar with so long a sermon. Agreed about the measure, I see no practical use in rummaging among the reasons for points of difference. But, should any occasion present itself, in which the benefit looked for from this source should be proposed, in opposition, and in the character of a substitute, to any arrangement, promising benefits, to my view of a less equivocal and more substantial texture, then would be the time for weighing the value of this part of the acknowledged benefit in diamond scales. Such as they are, I have a pair for the purpose, and they are at your Lordship’s command at any time.
But, my Lord, as in some companies the more the merrier, so in all competitions, the more the brisker. Setting down this benefit at whatever it may be worth, this and the first together (I mean dispatch,) from three, do they not bring us on to fifteen?
But at number 15, or before, if any inequality of numbers be admitted, comes single-seated judicature, and with it a new, and in my view, in comparison of either, I must confess, a still more important benefit; viz. individual responsibility.
A board, my Lord, is a screen. The lustre of good desert is obscured by it; ill-desert, slinking behind, eludes the eye of censure: wrong is covered by it with a presumption of right, stronger and stronger in proportion to the number of the folds: and, each member having his circle of partial friends, wrong, in proportion again to the number, multiplies its protectors.
Of the several branches of the public service, I would not positively undertake to say that judicature is, without exception, the one in which the advantages of individual responsibility operate in the strongest force: but where this force is at its least dimension, it can never be too inconsiderable for regard.
Other departments, for aught I know, there may be—the treasury, for example—in which, emulation finding no place, and the scene lying necessarily in a closet, board management may upon the whole be preferable. In Lord Coke’s time, the treasure being in a single hand, and that armed with a staff, Lord Coke finds a use for the staff: and says it is for keeping off sturdy beggars. But, under the softer manners of modern times, the screen may be found, for aught I know, (but your lordship knows exactly) the more convenient implement. Imagine a commander-in-chief stalking in to the treasury, in full costume—coat of mail and helmet—crying out. Your money, or your place! Coming to close quarters, a Lord Treasurer might find the staff break, sooner than the helmet:—but the screen might have its uses.—But, my Lord, what has all this to do with law and justice?
“Oh but, sir, this is all theory.”—Well then, my Lord, let us refer the matter to experience.
In Westminster Hall, two courts of Equity:—one, the Exchequer, with four judges in it: the other the Chancery, with but one. Thus to outside appearance; but in fact the Chancery includes two courts: sometimes both on a level, sometimes one above the other: as the plaintiff’s attorney thinks fit to place them: in the one the Chancellor: in the other the Master of the Rolls. Now should this, my Lord—should it, in your Lordship’s opinion, be among the “secrets worth knowing?” Call (for your Lordship has power) call for the number of suits instituted in a year in each of the three respective courts. Mean time, one thing I can take upon me to certify to your Lordship—I who have no power—viz. that, of the two single-seated courts, the one which has fewest causes, has more by a great many—and not only now has, but always had—(and I speak of those suits alone, in relation to which the competence stands on an equal footing) more, by a great many, than the many-seated court.
In the English court of Chancery, the authority has from time to time been vested in three judges, under the name of Commissioners of the Great Seal. But, so often as this treble-seated tribunal has been set up, so often has it been recognised as no better than a makeshift; and still the many-seated has given place to single-seated judicature.
So miscellaneous are the functions of the Lord Chancellor, that, to the maintaining of this constant recurrence to simplicity, other considerations may have lent their influence, besides that of its subserviency to the ends of justice. But from this surmise of other possible concurrent causes, no clear inference can be deduced: the effect, for which the advantage in respect of judicature is of itself capable of accounting, remains certain: and thus much may at any rate be inferred, that, from this so-often-repeated experiment, no indications were ever afforded, sufficient to produce a tendency anywhere to call, in that instance, for the permanent substitution of treble-seated, or in any other degree many-seated, to single-seated judicature. Of any such tendency. I, for my own part at least, never met with any trace.
But, without crossing the Tweed, the home-bought stock of experience might, in Scotland, one should have thought, have afforded indications sufficiently conclusive in favour of the proposition, that no superior prospect of advantage to justice is held out by many-seated, in comparison of single-seated judicature.
Eight-and-twenty sheriff’s courts, next in authority to the Court of Session, and in the aggregate covering the whole extent of the kingdom, all single-seated courts. Even in the Court of Session itself, everything, without any limitation worth adverting to, comes in the first instance under single-seated judicature: and what advantage has been derived, or so much as been thought to be derived, from the transference to many-seated judicature, let experience testify. On this head, whatever has been done, has been done in the way of reduction:—I speak of the riddance made of the Lords Extraordinary in George the First’s time.
In Edinburgh itself, close under the eye of the same public that calls so loudly for the decomposition of the many-seated court, there exists one of these single-seated sheriff’s courts. No call has ever been made for the substitution of complication to simplicity in this instance: and how should this be, if any inconvenience were felt for want of it.
Ever since the Union, indeed—almost these hundred years—Scotland, as well as England, has had a court of Exchequer; in England, a four-seated court; in Scotland a five-seated:* —and of this experiment, too, as far as it goes, the result is in favour of simplicity. Compared with the fifteen-seated court, general suffrage appears to be in its favour: for no complaints against it have ever been heard, and now a slice of jurisdiction (I mean that which regards the teinds, Anglicè tithes) is proposed to be cut off from the many-seated court, and given to the few-seated one. Many-seated, to be sure, it is, in comparison of the single-seated courts. But this proves nothing against simplicity: for in Scotch Exchequer judicature, there has been no single-seated court to try against the many-seated one, as there has been, and is, in English equity.
There are indeed the fourteen single-seated courts, with a Lord Ordinary in each: but such is the mode of being of these courts—sometimes detached from the fifteen-seated court, sometimes absorbed into it—that the distinctness necessary for comparison is not there to be found.
Out of five causes brought before the Lord Ordinary, he does not, it is said, pronounce a decision on more than one: the four others being, for mere want of time, handed up by him to the Inner House, before any considerable portion of his labour has been expended upon them.
At its institution, anno 1532, why was the court so crowded as we see it? Because France was the model for everything, and in France, judicature was thus crowded. In France, how came judicature to be thus crowded? Because the sale of the seats was an object of finance. From this sinister interest came the custom: from the custom, the prejudice: and that prejudice so strong, that it became a sort of axiom—that if in any instance the ends of judicature failed of being fulfilled, it was for want of a sufficiently great multitude of judges. We have a book, my Lord, on this subject, by Condorcet: a quarto volume with 460 well-filled pages in it: all algebra, all demonstration; and this axiom (preface, p. 24) a basis of it.
Sieyes, in one of his plans, improved upon this: and, to combine learning with popularity, and compose a substitute for reason out of two blind prejudices, he set up in every little town, down to I forget what degree of minuteness, a jury-box stuffed with lawyers: but, to feed this receptacle, and keep it constantly filled, after the requisite allowance for rotations, and radiations, and challenges, the quantity of learning (not to speak of probity) with which he proposed to enrich the territory of the republic, and by what means the learning itself was to find the necessary pabulum, must be left for imagination to conceive.
Now then, my Lord, supposing that, by the evidence of experience, or, in a word, by evidence of all sorts put together, single-seated judicature were proved to stand no higher than upon a par with many-seated judicature, would not its title to preference be complete? “Il ne faut pas multiplier les étres sans nécessité,” says a good French proverb: Is not this, my Lord, among the cases that fall within it?
If, in such a multitude of shops, there should chance to be here and there one that should find itself without customers, even in this case there would be no harm done. The judge whose learned leisure remained thus undisturbed, would be virtually in the condition of one to whom his salary is continued in the character of a pension of retreat:—and to form an anomaly, not altogether devoid of curiosity, in the natural history of pensions, here would be so many of these articles of expenditure, the propriety of which would find itself attested by universal suffrage.
Another thing:—Two additional many-seated courts require each a president: and the Scotch as well as English of president is, if my dictionary inform me right, additional salary. This additional salary, your Lordship, in your quality of presiding guardian of the public purse, would find a delight in saving: besides the correspondent burthen of patronage, which, by right honourable persons in your Lordship’s high and highly responsible station, has always been felt to gravitate with so severe a pressure. But a single judge would no more admit a president, than, after a critical examination, the largest elephant in the world was found to admit of either a superior, or a rival, in himself.
I dwell on this topic the more distinctly, because in the succedaneous or supplemental plan, which I propose to myself the honour of submitting to your Lordship among my Facienda, additional salaries are so unhappily and inevitably abundant: I mean for the existing local judges, to draw them off from the service of the technical Mammon, and purchase the whole of their time, for the service and benefit of justice: provincial judges, obscure but useful drudges—28 (if I do not miscount) in number—who, from so high an observatory as your Lordship’s, being too far distant to be viewed without a telescope, such as your Lordship’s learned assistant has not presented you with, found no one to endeavour to bring them under your Lordship’s notice, but a drudge still obscurer than themselves.
But to return from this digression. If England be so fit a model for Scotland, in respect of multiplication of juries, why not in respect of reduction of judges, and reduction, or rather avoidance of increase, of salaries?
The argument might be pushed further, by observing, that in the many-seated courts, almost the whole of the efficient and honest part of the business—I mean the conduct of the trial—is performed by single judges;—that, of the business done in full court, by far the greater part is made business, business that, had the ends of justice been the ends of judicature, would never have come to be done: and that, out of every three of the four judges, the best that can at any time be said, and more than can at all times be said, is—that they do no harm.
Take a man of commanding eloquence and character (such, for instance, as Lord Mansfield was); give him conceits (such as Lord Mansfield was said to have had) of putting himself in the place of King, Lords, and Commons, and then see whether there may not be a convenience to such a chief, in having for his supporters a train of ever-obsequious puisne judges. Then comes Sir James Burrow’s triumphant unanimity,—an unanimity not so flagitious indeed, but in other respects not much dissimilar, to the unanimity so regularly, and with so little expense, in addition to that of perjury, produced by torture, among juries.
To speak plainly, my Lord, I really see but two reasons, if reasons they are to be called, for the putting of so many judges in each chamber:—one is, that there is a stock of learned materials that somehow or other must be disposed of: the other is, that here are so many situations, which may be continued without complaint, because they exist already, and which it would be so delightful for a multitude of learned persons to look up to, and for some one learned person to have, as at present, the disposal of.
As to the first reason, I feel what is due to public decorum, combined with individual sensibilities. But, amidst such a number of persons at such a time of life, if there are not already, in the nature of things there cannot but soon be several, to whom repose would be more acceptable than labour, especially labour so unremitted as theirs is universally described to be: and, without insisting on their being killed off, at any rate the supernumeraries may be suffered to die off.
As to the other reason, unfortunately it is not the less persuasive, for being incapable of being avowed: and to this, I must confess, I have no better reply to make, than what is contained in that project of my own, for improving the condition, and increasing the dignity and utility, of the provincial Sheriff’s Courts.
If what has been said in behalf of individual responsibility and single-seated judicature, should not yet be found conclusive, materials are not wanting for ulterior and diversified appeals to experience; none of them without a precedent already in existence—all of them without addition to expense.
1. In one court, five learned lords, as in the existing court of Exchequer—the court which, in respect of the number of the seats, seems to have been taken as the model for the three proposed chambers.
2. In another court, four learned lords, as in each of the three common-law courts in Westminster Hall.
3. In another court—or, in one of the above, instead of the number above proposed, two learned lords, neither more nor less, as in the Welsh courts, each of them serving, upon occasion, to prevent the other from doing anything: a result that has now and then manifested itself in the other courts having seats, as above, in even numbers.
4. Moreover, if number three were regarded as possessing any properties peculiar to itself—number three, though unsanctioned by any particular precedent that I know of (unless the three seats occasionally substituted, in the character of a temporary makeshift, to the higher single seat in the court of Chancery, be considered in that light) might find its exemplification along with any two of the numbers already mentioned.
In each case, there would still be learned materials enough left for courts more than one, with single seats in them: and forasmuch as a course of experimental judicature is intended to be delivered, it were a pity that, if the joint evidence of theory and experience in favour of single-seated judicature be not accepted as conclusive, the experiment should not be diversified under as many forms as it is susceptible of.
Thinking three degrees of jurisdiction, whereof two of appeal, numerous enough;—sheriff’s courts and others in the provincial towns, metropolitan courts in Edinburgh, with concurrent jurisdiction as proposed, and House of Lords in the imperial metropolis (one more than in ordinary cases we have in England) quite sufficient;—the existing Inner House, therefore, at the best a superfluity; which, in degrees of jurisdiction, each swarming with delays, vexations, and expenses, is as much as to say a nuisance—your Lordship sees already what my conceptions cannot but be, of the proposed 5th degree of jurisdiction—the chamber of review.
But of this in its place: after which, and after I have humbly represented to your Lordship what representations are, I propose to myself (I believe it will be in the Omissa) to submit to your Lordship by how many points the existing Inner House always has been, and, in whatever number of chambers it were to come to be divided, still would be worse than useless.
Meantime, at the bare idea of such a dissolution, I see their whole Lordships up in arms. Actually existing Inner House, three projected Inner Houses—all vanished! No houses left but Out-houses!—each learned lord reduced to the condition of a mere Lord Ordinary! the Lord President left with nobody to preside over but himself! the two bonuses, the use and function of which was, to produce, on the part of the two leaders among their learned lordships, a conviction of the utility of the plan, an utility so transcendent as to outweigh even the mischief of innovation—these two all-composing anodynes both gone!
So redundant is the population of the Inner House found to be, when once any principle of reason or experience comes to be applied to it—so large the proportion of the mass that runs into scoriæ, when once put into this test—so raging the disease, so urgent the pressure, that even Mr. Malthus, with his inflexibility, and his bitter remedy, might find himself at a loss to cope with it. Submitting mine, I submit it rather for illustration, than for any serious hope of seeing it carried into practice. To give reception to it, the interest of suitors would be to be preferred to the amour propre of so many judges: the whole interest of 1,500,000 unlearned, to that delicate and tender part of the interest of fifteen pre-eminently learned persons: the ends of justice to the ends of judicature:—and, in Scotland in particular, not to speak of other countries, was ever any such preference, to any extent worth speaking of, so completely without a precedent?
As to the persuading a learned lord to sit in a court in which he would be sole judge, instead of sitting in a court of no wider nor higher an extent of jurisdiction, in which he would be but one out of five, it is not there, if that were all, that I should be apprehensive of much difficulty.
The misfortune is, that of the jurisdiction at present exercised by the Court of Session, a great part, and, if I apprehend it right, by far the greatest, is jurisdiction in the first instance; so small being the proportion of the number of causes that receive a decision from the Lords Ordinary: and the business of the Bill-Chamber, it is to be hoped, not being sufficient, when added, to place the majority on that side.
At present, the population of this upper story of the College of Justice, with the exception of the Lord President, standing, the whole of it, upon one level, here would be a necessity for disturbing the equilibrium, and fixing it on two different levels, dividing it between an upper and an under school: and here it is not, as in the case of the two additional proposed chambers, in which two learned persons are to gain, each a remove, their fellows remaining as they were; but a sort of turning down or degradation would be to be effected, of those who at present do upper as well as under-school exercise, some being abased, and confined to under-school exercise alone, seeing their fellows at the same time exalted, and set for ever above such inferior exercise.
Here, then, would be the rub. In some schools, where a pill of the bitter kind has been to be swallowed, lots have been cast to know to what part out of the whole number it shall be administered. But that has been propter delictum; which takes it out of the present case and unfits it for a precedent.
In our spiritual courts, the same learned person is found, I have heard it remarked, to act alternately the part of judge and advocate, coming upon the theatre of justice sometimes in the one character, sometimes in the other, with the most amiable condescension, and with that facility and promptitude which is acquired by practice. But that, on that or any other theatre of justice, any such custom has ever prevailed, as that of a judge ad quem descending and coming on in the character of a judge à quo, is more than I recollect an instance of: especially where the descent has not been occasional, alternating with reascent, but permanent and definitive.
The misfortune is—it is impossible to disguise it—that, not only on the existing plan, but on my plan, jurisdiction in the first instance is sheriff-depute’s [substitute’s] work; and, while any one of their lordships had appellate-jurisdiction work to do, and that alone, to expect that any other of their equally learned lordships should set his hand to sheriff-depute’s [substitute’s] work, would be an expectation about as extravagant, as that the housekeeper of any of their lordships should set her hand to kitchen-maid’s work, and undertake to wash the dishes.
In the military department, indeed, how often have we not seen, in histories at least, one general serving as volunteer under another, a senior even under a junior? But how different—how opposite, or rather disparate, in every point—are the two lines of service! In the one, a man hazarding his own life, to save life and everything to his fellow-subjects; in the other, sitting upon a cushion to dispose of theirs; not forgetting to secure a few pickings out of their fortunes to his own use. Honour the endowment of the soldier, learning that of the man of law. Are south and north more opposite than honour and law-learning—law-learning, with falsehood for the basis of it?
This, then, being hopeless—and whatever else may savour of self-denial, or sacrifice of personal profit or vulgar pride, to public good, or to more refined and sublimated pride, from members of a body so placed, and so habituated, alike hopeless—(your Lordship will comprehend without difficulty with how much greater satisfaction I should see any such conception confuted than confirmed)—it remains, that, for doing sheriff’s work, we should be reduced to men as yet unlorded, to men upon no higher a level than that of sheriffs-depute [substitute.]
Yet a time there was—and that at no great distance—at which a Curtius of this stamp might not improbably have been to be found. There lived an honest man once, ever among their learned lordships, whom they called Swinton—Lord Swinton—the same whom, on a pilgrimage made by him to England—like that of Herodotus to Egypt, or the fabled one of Anacharsis to Greece—to England, as to the seat of more antique and mysterious learning, Judge Buller, perceiving in the man a sort of an excrescence like your love of justice, and looking upon him for it as an oddity, a species of Howard, like a man with two thumbs, or a calf with five legs, took upon himself to quizz: telling of him a good story, which I choose rather to leave for a Bulleriana, or King’s-Benchiana, than to entertain your Lordship with it.
In this man, judging of him from his pamphlet, which perhaps your Lordship may have seen, and which is all I have to judge him from, except the small-debt act, for which, if it be his, as it is said to be, thousands and tens of thousands, born and unborn, are bound to bless his name—in this man I should have expected to find a sort of Scrub, a judge-of-all-work, ready to serve justice in any capacity in which he could be made useful to her; and (like another honest man far beneath him, whom, for different odd jobs, I may, in the course of these letters, have occasion to present to your Lordship’s notice) without scratching his head for something to drink, or calling for increase of wages.
Not but that—could the plan of so unqualified a reformer, as he who thus presumes to obtrude himself upon your Lordship’s notice, present any title to acceptance—work, and that of a kind not to be disdained by any hand, would be to be found, for one at least of these indubitably learned, and supposed superfluous distributors of justice: work, in its nature somewhat different from their present occupation, but in dignity not inferior, and with an appropriate title. I mean that of inspector-general—say, lord inspector—of Scotch law: but of him and his functions, in my short list of facienda.
Moreover, if another of them would condescend to take English, and another again Irish judicature under his care, they would neither of them, I would venture to say, find in either field any want of matter meet for observation.
I have already ventured to confess to your Lordship, that, under the existing fee-gathering system, my expectations from the benefit of competition, so far as concerns one branch of that benefit, are far from sanguine. But, my Lord, since upon my plan we have so many pre-eminently learned persons, each of himself a court, and in the habit of being one, upon our hands, I will venture so much further as to submit to your Lordship one experiment, which, although there could be no sort of competition in it, would be but the more instructive. And, in proposing the experiment, so bold am I for this once, that without any sort of pretension to the gift of prophecy, I will moreover venture to predict the result.
Let any number of courts be set to proceed in the way of natural procedure. Let any other number (for shortness, let us speak as if in each case there were but one) be left to proceed in the way of technical procedure, according to the existing practice.
Such being the experiment, now as to the result. The result will be, my Lord, a separation of plaintiffs into two groupes—
Bonâ fide plaintiffs—every one of them, without exception, will go to the court of natural procedure.
Malâ fide plaintiffs—every one of them, without exception, will go to the court of technical procedure.
Every one of them—that is, if there be any:—if, with his motives upon his forehead, any lawyer—advocate, writer to the signet, agent—whatever be his nature, or his name—should be to be found, hardy enough to lend himself to a procedure, of which, where there is any other to be had, the oppression of the defendant will be the sole object, as well as manifest result.
To the court of natural procedure will betake himself every man who, wishing to have his due with as little delay, vexation, and expense as possible, is content, for the benefit of seeing the obligation of veracity imposed upon his adversary, to face him before the judge, and take that same obligation upon himself.
To the court of technical procedure will betake himself every man who, having a demand for the power of imposing upon his adversary a quantity of expense and vexation, and wanting delay as an instrument for letting in and laying on the vexation and expense—whether it be for the simple purpose of inflicting torment, or for the purpose of compelling, by the terrors of such torment, or the inability of enduring it longer, a surrender of the Naboth’s vineyard, by which his concupiscence has been provoked;—having an effectual demand, I say, for this jus nocendi, and being content to torment himself for the advantage of applying corresponding torment to his adversary, goes of course to the only officina justiciæ where jus nocendi is to be sold.
As to the court of natural procedure, and the destiny that will await the causes introduced into it, I can venture to submit an estimate, not unworthy of your Lordship’s notice.
A little less than a third, or some other such large proportion of the whole number of causes, will receive their decision on the first day, and after one appearance on both sides:—a little less than another third, on the next day, the defendant having made default the first; but still with but one appearance on each side, or with but one appearance, and that on the plaintiff’s side:—a little less than the remaining third, still on the second day; though, in this case, by adjournment;—and thus with two appearances on each side.
I speak from a twenty years’ experience, acquired in a court of conscience, of which in another place: and presently your Lordship shall see—if not an estimate, an expectation—from much higher, indeed from the very highest authority, and still more favourable.
Other suits there doubtless are, to the delay and expense of which, as resulting from some assignable cause or causes of complication, a table of which is hereto subjoined, even under natural procedure, no such limits as the above, nor even any determinate limits, can be assigned. But these would most assuredly not amount to a tenth part of the whole number of civil causes of all sorts, those included which cannot now come, as well as those which can and do come, under the jurisdiction of the courts of conscience, or say of the small-debt courts.
Among these suits, there are some in which the use of writing, in the first instance, will be necessitated by the circumstance of distance. But that the exercise of the jus mentiendi is not necessarily attached to that of the art of writing, is known even to English equity. For all these extraordinary cases (for such they are, in comparison of the bulk of causes that would come for justice, if it were to be had,) full provision is accordingly made in the plan, the outline of which will be submitted to your Lordship in the Facienda.
But here another difficulty presents itself. After travelling, and so much at their ease, and through the whole course of the learned part of their lives, in the road that leads to the ends of judicature, their Lordships would be apt to find themselves a little awkward, it may be feared, when set to travel in so new and strange a road, as that which leads by the shortest cut to the ends of justice.
My Lord, I feel the force of the difficulty; but nothing but absolute necessity shall make me regard it as insuperable.
Various expedients present themselves:—There are schools in which grown gentlemen may learn to dance: there are schools in which grown judges might learn to do justice.
Each learned lord has servants: most of their learned lordships have or have had children: to whom, in case of any little transgressions or disputes, such as will sometimes present themselves in all families—to whom, at any rate (I speak of the children,) if not to the servants, he will have been desirous to do, and will accordingly have done, justice.
Each learned lord, or at any rate almost every learned lord, has or has had a lady, whose learning, let us hope, if she has any, bears no resemblance to his own. If in that domestic tribunal he has not been in the habit of exercising the judicial office himself, or even if he has, let him put himself under her tuition for a while: behold in her rules and orders a set of acts of sederunt, to which I will not do any such injustice as not to suppose them better than his own, and read in her fair hands his improved book of practice.
Should that course of schooling, in the instance of this or that learned tyro, fail, or be found insufficient, let him follow the precedent, though not literally, set as above by the good Lord Swinton. Let him betake himself—not to a jury-box, as Lord Swinton did—he will not find there exactly what he stands in need of—but to the nearest Scotch small-debt court:—or it, looking upon a visit to any such neighbouring school, as a sort of remedy for his leprosy, too near akin to a dip in the river Jordan, he does not, any more than Lord Swinton, grudge crossing the Tweed, let him repair to Birmingham, and put himself under the tuition of Mr. Hutton, whose amusing as well as instructive account of the proceedings of the court of conscience there, as carried on under his presidence, is lying on the table before me; and who, if applied to by any man in that elevated station, will, I am certain, not refuse that information, which in my obscure and humble station he has granted to me.
But, not to impose on every one of their learned lordships the necessity of any of these wild pilgrimages, there exists (if on a hasty glance I comprehend this part of the carte du pays right)—there exists in that spacious mansion called the Outer House, including in itself so many mansions, one in which there sits a learned lord, called the Lord Ordinary on Oaths and Witnesses. On him is imposed, I see, on particular occasions, the degrading function of sitting to receive, in their own proper, or rather improper persons, the canaille of suitors.* There he finds himself now and then obliged—for I believe he finds it impossible to escape from them altogether—to hear them and examine them, and thus to get from them the truth, in its native crude and impure state, without having it refined, and double-refined, and treble-refined, by being percolated through the lips and pens of commissioners and commissioners’ clerks, and agents, and writers to the signet, and advocates, and Court-of-Session clerks of so many sorts and sizes. In this ergasterium, if I understand the matter right, it falls to the lot of each of their lordships (the president excepted) in his turn to drudge. If, then, after drawing the truth, or whatever is given for truth, in this crude state, and from whatever sources it is to be had from, and that at the very outset of the cause, and from both parties at once, and without a syllable previously written by professional lawyers of either side, or at any other time, unless it be worth while, as the parties and witnesses if any, speak, to set down what they say,—if, with these little variations, he can prevail upon himself to decide upon the evidence at once, instead of setting it, or something that passes for it, to be committed to writing, to be decided upon by some other judge, who has heard nobody, seen nobody, and knows nothing about the matter, he will have judged, under the system of natural procedure, whether he knows it or not, as truly and scientifically as it ever happened to Monsieur Jordan to talk prose.
Can the utility or the practicability of the natural system admit of doubt? Let us call authority then to solve it, my Lord, and let us look up at once to the highest in this line:—
Even Mr. Hutchinson* —I should have said his right honourable corrector of the press—(p. xiv.)—the Lord President—speaking (p. 116) of the Scotch small-debt courts (courts of natural procedure,) admits, that the mode of procedure there pursued, parties present, no mendacity-licence, is “most excellent” (pp. 116, 120, 123, 125;) meaning for a debt of £5:—of course for a debt of £50, if incurred at ten different times. The same learned gentlemen are indeed equally clear, that the self-same mode of procedure, or at any rate that the self-same courts, are stark naught for a debt of £5: 1s.—“It is plain,” say they, p. 129, “that in this country the sum could not at present, with propriety, be raised above £5 sterling.”† Add a shilling to the £5, thereupon comes the necessity of a determination on the part of the judge never to set eyes on the parties, coupled with a determination to read or pretend to have read lawyers’ scribble, heaped together in volumes, printed with the benefit of the mendacity-licence. As to the distinction itself, nothing can be clearer: but as to any ground for it, relation being had to the ends of justice, nothing of this sort is attempted to be given, nor ever will, the task being upon the face of it an impossible one.
In vain would it be to say, when you get above £5, learning is necessary, and learning is not to be found among non-lawyers, the noblemen and gentlemen, who sit and act as justices of peace in these small-debt courts. This being admitted—(not that the connexion between height of value and demand for learning has place in so many as a fifth part even of the causes above that value)—this however being admitted, still the ground would be never the stronger: draw the boundary line where you will, still it would remain to be proved, that while truth is sufficient to justice below the line, mendacity is necessary above it. The mode of inquiry pursued in the system of procedure, is one thing; the description of the hands, by or under which the inquiry is conducted, and justice or something that is called justice is administered under that system, is another. Whatsoever repugnancy learned minds may feel at the idea of pursuing, with truth before them, the only course leading to the discovery of it, the bar is of their own making: learned feet, could they be prevailed on, are no less capable of pursuing that track than unlearned ones.
So in regard to space and time. In the one case, there is a straight road of a mile long, and without a turnpike in it: in the other case, you may go to, or at least towards, the same place by a road of a hundred miles in length—full, accordingly, of turnings and windings—full, moreover, of quicksands and pit-falls, and equally full of turnpikes. In conducting the traveller, nothing obliges the conductors to avoid the straight road, and drag him along the crooked one: nor would they ever have given themselves any such trouble, had it not been for the turnpikes, the tolls of which are so regularly settled, and the tills in such good keeping:—learned feet, could they be prevailed on, are no less capable of treading the short road than unlearned ones.
As to our learned author, so long as the travellers are “low people,” and unable to pay turnpikes, he is content that they shall be let into the one-mile road, where there are no turnpikes. But, as everything that begins must begin somewhere, his calculation is—that where the value of the article to be travelled in quest of, begins to rise above £5, there begins the influx of your respectable sort of people, who are able to pay the turnpikes. Then accordingly comes the time for shutting up the bowling-green one-mile road, which is without turnpikes, and opening the bone-setting or bone-breaking hundred-mile road, crowded all the way with turnpikes.
“It is not,” says he, p. 137, “without some very good reason assigned, that the court is to be delayed from one day to another, but each day’s roll ought to be determined, if possible, at one sederunt: as the loss of time, besides the injury to the community, is a very serious evil to persons in the lower ranks of life, for whose benefit this act was principally intended.”
Every day, every mile, beyond the first, is grudged (your Lordship sees) by the humanity and justice of these learned gentlemen, where the persons detained are low people, out of whom nothing, or at least nothing worth stooping for, is to be got, and the persons detaining, are unlearned people, by whom nothing is ever got, and for whom nothing is intended. But no sooner do your respectable people come up—bang goes the gate of the one-mile road in their faces, and they find themselves thrust into the hundred-mile road (with more propriety I might have called it the 500, or 1000 mile road,) while humanity and justice are as fast asleep as ever London watchman was at his stand. In the one case, not a single day’s delay will learned gentlemen endure to hear of, “without some very good reason assigned:”—in the other case, days of delay by hundreds, not to say by thousands, insisted for, and not an attempt to assign so much as the shadow of a reason.—But nemo dat quod non habet.
Thus it is, that, till that explanation shall come, of which your Lordship will judge whether it can ever come, your Lordship has not only reasoning, which (being my reasoning, and without any intrinsic authority for its support,) is worth so little, but authority, which (including, as it does, the authority of the right honourable president,) is beyond all price, for being persuaded, that the natural system of procedure is “most excellent,” and even for causes of all sorts and sizes: at any rate, if administered with the benefit of that learning, which, if properly commissioned, nothing but its own diffidence, (shall I say?) at any rate its own reluctance, can prevent from administering justice in this “most excellent” mode, in which unlearned gentlemen administer it without difficulty, and so much to the satisfaction of their learned superordinates.
Their satisfaction—yes, my Lord, and their delight. For it would do your Lordship good to turn to Mr. Hutchinson’s book, and see with what energy these learned persons, over and over again, plead the cause of Natural Procedure, as personified in these small-debt courts, always supposing that at the exact sum of £5 she makes a full stop: by how rich a fund of virtue, in the shape of candour, disinterestedness, devotion to the laws, love of justice, and I know not how many other shapes, all that eloquence has been fed. But, until that explanation shall come, which can never come, it may be worth your Lordship’s while to consider, lest the force of such high authority should act in a wrong direction, whether necessity was not the material of which all that virtue was composed, and whether the real object were not (seeing that what was done could not be undone,) to stop the unprofitable system from going further; and, for that purpose, upon the strength of so much virtue, to obtain credit for the insuperability of that inestimable bar, of which no description was given, because it was not to be found.
A circumstance which does not tend to weaken this suspicion, is the care taken to bolster up this bar, by the hack epigram, made by Montesquieu, and retailed by Blackstone, in which the idea of incompatibility as between justice and liberty is insinuated: a piece of sophistry which, whether in design or no, may be set down as being, in tendency, one of the most mischievous that wit was ever employed in varnishing; and which, before I close this address, I feel myself strongly tempted to strip of its varnish, that lawyers in general, and especially lawyers to whose authority height gives weight, may, by shame, and fear of public indignation, find themselves estopped from using it.
Four-and-twenty thousand six hundred causes in little more than eight years, making 3,075 causes in a year, is the number stated by the Mr. Hutchinson and his right honourable collaborator (i. 144,) as determined in one alone of two small-debt courts “in the Edinburgh districts alone of the county of Edinburgh, exclusive of the two other country districts:”—population 82,560, as per returns printed by the House of Commons; viz. if my conception of the districts meant to be designated by him be right, of which I can form no assurance; but, take it in any way, to the purpose of the conclusion, there will be little difference:—
Now then, my Lord, if the mode of procedure pronounced “most excellent,” by that right honourable and most competent judge, be not to his belief most excellent, how can he justify himself (ask him, my Lord) in certifying it to be most excellent in these 59,540 cases? But if it be so excellent (always saving and reserving to him the benefit of that distinction which will never come,) how can he justify himself in opposing the ineffable and unsurmountable bar to the extension of this most excellent mode to the 4,550 causes?
One observation more, my Lord, to save learned gentlemen the trouble of seeking support in a straw, which would break in their hands as soon as touched. In vain would it be to plead in bar to the personal appearance of parties, the vexation it would be attended with.
1. The vexation which you grudge not to impose on 59,540 persons, shall you grudge the imposing it on 4,550?
2. The vexation which does not preponderate against the advantage in so many other shapes where the value at stake is no more than £5, shall it preponderate where the value at stake is 10, 100, 1000-times as much?
3. The vexation which you never grudge imposing upon a man where the cause he is to attend upon is one in which he has no concern (I speak of extraneous witnesses,) shall you grudge the imposing it upon him where the cause is his own?
4. Thus the matter would stand, as between one man in the character of a party, and another man in the character of a witness. But, my Lord, who does not know, that frequently the appearance of a single man in the character of a party, will save the appearance of any number of men in the character of witnesses?
5. The vexation attached, under natural procedure, to the personal attendance of a party before the judge, is less than that portion alone, of the vexation attached to technical procedure, which consists in the attendance necessary to be paid to his own lawyers.
6. Vain and groundless will be seen to be every use that can be made of the article of vexation, in the character of an objection to natural, as opposed to technical procedure, when it is considered, that of the vexation attached to litigation in general, and in particular of the portion attached to attendance of parties, little less than the whole was factitious—the produce of the industry of the predecessors of learned judges, made by them in conjunction with one set of their partners, viz. malâ fide suitors; who, for the part borne by them in it, get payment—plaintiffs, as above—defendants, also as above, besides the benefit of delay:—factitious mischief, made by the managing partners on purpose, in order to force men, as they did, injured and injurers together, into the hands of another division of the partnership,—the hireling and naturally treacherous assistants and substitutes of the parties.
The effect was produced—partly by swallowing up the local judicatures, and thus enhancing the vexation and expense of journeys;—partly by encouraging sham excuses for non-appearance, called essoigns, and multiplying incidents ad infinitum, and so enhancing the vexation and expense of demurrage;—all this in a state of society which afforded neither roads, nor carriages, nor lodging-places, nor safety anywhere.
In my first letter, in hanging up the two companion-sketches of natural and technical procedure, I had occasion to state this;—and now, to prove it, I call the right honourable the Lord President.
But, my Lord, his evidence (your Lordship sees) is already half given:—a single day, viz. a few minutes in that day, is all the time he says (as above) that a cause ought to last in general, and setting aside the extraordinary cases. There is the half that has been already given: the other half, that remains to be given, consists in an estimate of the number of days, minimum, maximum, and medium, which the same individual cause, that ought to be, and commonly is, dispatched in a small part of a day, by unlearned judges (parties being present at the outset,) would be drawn through, in the hands of those learned persons over whom he presides:—be drawn through—I mean, in the several cases of its visiting the 1st, the 2d, the 3d, and the 4th, of those degrees of jurisdiction, to the number of which, as not being yet sufficient, it is now proposed to add a fifth.
It is not without pain, believe me, my Lord, that I feel myself obliged to come to such close quarters with my learned adversaries, if such they are to be, and to apply a scrutiny of so rough a texture to a book which commands my admiration by so many titles. But, if I thus treat them as adversaries, it is for the purpose of converting them into allies:—and, labouring under such a load of disadvantage, contending against principalities and against powers, having a great battle to fight, and but one pair of hands, and those very weak, to fight it with, prudence will not suffer me to neglect an advantage so eminent and so rare.
Nothing, my Lord, do I impute to these two learned persons, or either of them, that I do not find myself equally obliged to impute as the effect of the original sin of the whole race, to all the Inns, whether of Court or Chancery, as well as to the whole College of Justice.
Ah, my Lord!—if your Lordship could but prevail on the Lord High Chancellor, or the Lord Chief-Justice of all England, to write a book, or, what comes to the same thing, to give a “regular revisal” to one, “sheet by sheet, without one exception,”—to a book, I mean, showing how everything is as it should be, and, in particular, how jury-trial, placed and ordered as it is, is a boon so perfect as to “excite astonishment at the blindness that can hesitate about acceptance:”—could your Lordship, by any entreaty, obtain for England a lecture ex cathedrâ, correspondent to that which has been so generously and spontaneously bestowed upon Scotland—ah, my Lord, what sport should you then see!
But to return to my experiment;—a competition, if such it must be called—not between judge and judge, both under the same system, but between system and system, technical procedure and natural procedure. Here would be an experiment indeed, my Lord:—a true experimentum crucis. Has your Lordship nerves for it? “Fiat experimentum” was the favourite dictum of that Chancellor, who, I presume, had his seat in the cabinet of that day, and who was at once the father of philosophy and the legislator of legislators. “Fiat experimentum” was the language of Lord Chancellor Bacon: would it be the language of Lord Chancellor Erskine?
[* ]By 2 & 3 Will. IV. c. 54 (23d June 1832,) the court of Exchequer in Scotland was prospectively abolished; the duties, on the death or resignation of any of the judges, being appointed to be performed by those remaining, and after the death or resignation of the last remaining judge, by a judge of the Court of Session.—Ed.
[* ]Bell’s Forms of Deeds, 1st Ed.; Ed. 1797, 1804; vi. 107.
[* ]Hutchinson’s Justice of Peace, 1 Ed.; Ed. 1806.
[† ]By 10 Geo. IV. c. 55 (repealed by 1 Victoria, c. 41, which consolidated the law on the subject,) jurisdiction was given to sheriffs to deside summarily in debts not exceeding £8: 6: 8, (viz. £100 Scots.)—Ed.