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LETTER III.: PROPOSED SYSTEM OF PLEADING. - 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 SYSTEM OF PLEADING.
In the present letter I propose to say what little there seems at present any use in saying on the little that, on the subject of Pleadings, I find said in resolution the 5th,—the resolution which takes that subject for its theme.
“Resolved,—5. That in all causes, whether originally brought before the Lord Ordinary, or before the Chambers as Inner-House Causes, the defender shall, in his defence, distinctly admit or deny all relevant facts alleged in the summons, or other writ by which the cause is brought into court.”
Further on, my Lord, I observe profession ample, and yet performance scanty:—but where what is professed is nothing, what can be expected of performance?
Of this profession, the manifestly professed object is diminution of factitious delay, vexation, and expense: viz. in so far as the defendant’s share in the process called, in English law, pleading, is concerned.
Now, my Lord, were it really an object to do away, or diminish, the factitious part of that aggregate mass of inconvenience, learned gentlemen would not, could not, be at a loss. Admit, compel even, both parties, in the first instance, into the presence of the judge: sending them, however, not from the Orkneys to Edinburgh, but from the Orkneys to Kirkwall. Scotland has the happiness of possessing already a set of local courts, by which the Scotch metropolitan courts stand divested of the pretence, which the English ones have made to themselves, for turning a deaf ear to that first principle of justice. Admit them;—but under that security for veracity which is never refused, in the case where temptations to the opposite vice have no existence:—which is never refused in the case of the most unexceptionable extraneous witness:—take away, in a word, the mendacity-licence, as it is already taken away in those civil courts where justice, in all its shapes, is really the object—in the English courts of conscience, and in the Scotch small-debt courts.
Do this, and all “relevant facts” will really be either “admitted or denied:” and on each occasion, with whatever “distinctness” the ends of justice, in the opinion of the judge, require: if the first word is not distinct enough, he calls for a second: and so on, till he gets one that he looks upon as adequate to the purpose: being exactly what happens where a man is heard and examined, and cross-examined, in the character of an extraneous witness:—and (what is more,) along with the distinctness you will get truth: at least as surely as you could expect to get it from an extraneous witness;—that truth which would so ill accord with the interest of the learned framer of the resolution, and his learned partners, and which accordingly he does not so much as profess to aim at.
What!—put an end to written pleadings?—rob us of our business?—knock up our profession?—substitute Turkish to Scotch and English justice? Whence comes this man?—from the Jacobin Club, or from St. Luke’s? Loud laughter among learned lords and gentlemen:—but will Lord Grenville join in it?
The defendant shall (says the learned reformer) be “distinct” in his “admissions and denials.” What! does it depend upon him, then, my Lord, to give distinctness to the language of a man he never hears? and, in a word, of every man? Yes, if he were a judge, with the defendant before him:—but that is the very thing which no learned lord or gentleman can ever bear to think of. And yet he commands, and, in commanding, undertakes for, and predicts distinctness. Now then, my Lord, let us see what are the chances his prediction has of finding itself fulfilled. As often as the defendant is in malâ fide, which in the most common sort of cause (debt) is most commonly the case, it is the interest of that one of the parties that there shall be no such distinctness: be he in malâ or in bonâ fide, such, at any rate, is the interest of his lawyer: and on these two it is—but in an infinitely greater proportion (taking the suitors in the aggregate) upon the lawyer, that distinctness depends. Now then, as to the chance of fulfilment, how stands the matter at present? No distinctness at present;—for it is the want of it that is the very grievance to be remedied:—how as to the future?—though distinctness is the sole object, nothing is so much as proposed for promoting it in future:—and yet the learned reformer, with his prophetic as well as imperative shall, makes sure of it.
The learned gentleman, who has distinctness at his command, had he begun with giving it to his own conceptions and expectations, might it not have been of use?
On occasions of this sort, my Lord, there is a something, which, without the aid of learning, common sense is pretty much in the habit of doing, towards securing distinctness in respect of admissions and denials: and that is—whatever, having been asserted on one side, is not denied on the other, to set down as admitted: and whatsoever, being attempted to be denied, is not denied with sufficient distinctness, to set down that too, upon occasion, as not denied but admitted. Such is the practice, my Lord; and that not only where common sense is happy enough to continue unoppressed by learning, but even in the midst of learning, and in spite of it:—for example, in all reciprocating affidavit-work, not to mention other instances.
Had he gone thus far, and said—Whatsoever relevant facts, being alleged in the (plaintiff’s) summons, &c. are not denied (or are not distinctly denied) by the defendant in his defence, shall be regarded as admitted—by so doing, something might perhaps have been done: done, I mean, towards the apparently professed object—the abridgment of these written pleadings, with their io, mio, and arrio of delay, vexation, and expense:—and this, too, though perhaps not altogether without cramping, yet certainly without knocking up, the learned trade.
I speak, my Lord, taking the matter upon the footing of the French chevalier d’industrie’s position—“Monseigneur, il faut que je vive:” and setting aside, as surplusage, the lieutenant de police’s reply—“Monsieur, Je n’en vois pas trop la necessité.”
The case is, my Lord—as, I hope, I may now say your Lordship sees—that, so long as written pleadings, especially in the Scotch style, continue to be received—without oath or equivalent security, or faculty of counter-interrogation—it is the interest of those on whom it depends, and it depends on those whose interest it is, that there shall be no end to them on either side, nor therefore any distinctness in them or truth:—and it is in this state of things that the learned reformer undertakes, by his fiat, to infuse distinctness into all conceptions and all pens.
My Lord, on this subject there is a supposition which I really know not how to get rid of, and which is—that in presenting to your Lordship this his recipe for the cure of indistinctness, the learned practitioner must have represented himself as doing something which had not been done before. Never, surely, could he have said to your Lordship—this my nostrum is one of the powder-of-posts which the Pharmacopæia Juridica Edinburgensis is full of—which we have been administering every day for these twenty years, and which has never yet been found to have any more effect than it was designed to have. No, my Lord; this could never have been his language:—what he must have said, is—this is a new preparation, which will now come to be tried for the first time, along with the other novelties.
Such was the character I had of course ascribed to it. Judge, my Lord, of my surprise—a surprise in which I should expect your Lordship would not be altogether without a share—when, in rummaging among the Acts of Sederunt, I found a part of one, and of so recent a date as 11th August 1787, in these terms:—“When the defendant receives the summons, he shall therewith return, upon a separate paper, his whole defences, both dilatory and peremptory, stating the facts he is to insist upon, and explicitly admitting or denying the several facts set forth in the pursuer’s libel.”
To be sure, the tenor is not precisely the same:—anno 1787, explicitly; anno 1806, distinctly:—but whether, in purport, there be any material variance, your Lordship will judge.
Now then, my Lord, this law of the Scotch judges, is it acted upon, or not? If acted upon, your Lordship sees what has come of it: if not acted upon, but neglected, what security does the resolution give—what security is it in the power of the learned author to give—that the neglect will not continue? As to neglect, your Lordship will please to observe, that it is no more than has happened to many and many a law, of more substantial texture. For, my Lord, in the Court of Session, the very carpet they tread upon is made of shreds of laws, enacted, broken to shivers, lying one upon another in heaps, unabrogated, unremoved:—a carpet, than which none was ever softer, to the foot of a corrupt or partial judge. But of this among the Omissa.
All this while, if by pleadings are to be understood demand, with particulars and grounds of demand, on one side—admissions or defences, with grounds of defence on the other—think not, my Lord, that if it depended upon me, written pleadings would be no more. On the contrary, printiny, where properly managed, being a cheaper mode of writing, great and constant use would be made of them: though, unfortunately for their reception, upon such terms as would be of little use to pleaders.
But, my Lord, without a body of substantive law to stand upon, a system of pleading is a superstructure without a foundation. Without this basis, an edifice fit for any better purpose than that of a labyrinth, for harpies to burrow and fatten in upon the blood of suitors, is an impossible work:—on this basis, foundation and superstructure together, comparatively an easy one:—but of this in the Facienda.
Yes, my Lord: speak the word, and a body of law, with a system of pleading raised upon it, you shall have. Comyns, title pleader, shall be taken into the laboratory. It shall be thrown into the roasting furnace; the arsenic, 60 per cent., will fly off in fume:—it shall be consigned to the cupel; the lead, 30 per cent., will exude out, and repose for everlasting in the powder of dead men’s bones. The golden button, 10 per cent., shall be gathered up, my Lord, and made the most of.
On the present occasion, with the benefit of second thoughts, I spare your Lordship’s indulgence no light load, which, under a first impulse, I had destined for it, about issues, general and special, summonses in the Scotch style with libels in the belly of them, and Scotch petitions, and English declarations and pleas, and English assumpsit, trover, and ejectment, and Scotch ranking and sale: and the existence in Scotland of the equivalent of English declarations, and the non-existence of the equivalent of English pleas:—and the original old English Castle of Chicane, and the new wing added to it in Lord Mansfield’s time (for in business, addition is as welcome as subtraction is invidious,) to wit, under the name of “particulars,” and so forth. How fortunate is it, for one of us at least, that the discovered nihility of this part of the learned improver’s basis, saves me from the task of seeking to load it with any such superstructure!