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LETTER IV.: PROPOSED TRIAL BY JURY. - 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 TRIAL BY JURY.
Written pleadings, my Lord, with the benefit of the mendacity-licence—the assumed necessary foundation of jury-trial—being thus provided for, we come to the superstructure.
“Resolved,—6. That if the defendant shall, in whole or in part, deny the facts stated by the pursuer, or shall in his defence make any averments, in point of fact, which shall subsequently be denied by the pursuer, the Court or Lord Ordinary respectively, on the requisition of either party, or the Court at their own discretion, shall order that the issue of fact shall be tried by a jury, except in such cases as it shall be found proper to except from this rule.
“7. That when it appears to the chamber, or to the Lord Ordinary, reasonable that such issue so directed shall be tried in that part of the country where the evidence can be most easily obtained, it shall be competent to remit the cause to the nearest circuit, to be there tried by a jury.
“8. That whenever, in the inferior courts, proofs shall have been allowed, it shall be in the option of either party to apply to the Court of Session, in order that the issue may be tried by a jury, if the court shall so think fit. But if neither party apply for the trial by jury, the cause may be decided by the inferior courts, according to the forms now in use, and afterwards in review by the Court of Session by jury, or otherwise, as the court shall think fit.
“9. That it shall be competent to parties to complain against verdicts of juries, that the same were given contrary to evidence, or by misdirection of the judge sitting as Ordinary, or on the circuit, or presiding in the chambers.”*
Before I proceed upon the learned Reformer’s plan about jury trial, permit me, my Lord, to submit in the first place, and—Scotland, not England, being the proposed scene of action—without reserve, the use which, on my plan, would be made of that security, in civil suits.
In the second instance, or degree—call it new trial, as being after a former one, though before another judicature—call it appeal, as being from the decision pronounced by my single judge, on the trial carried on by and before himself alone—I would have all causes, so far at least as concerns the question of fact, capable of being brought before this species of tribunal: the first trial being, of course, supposed to have been carried on in the natural mode; as in the English courts of conscience, the Scotch small-debt courts, the courts in both countries composed of justices of the peace, acting on civil occasions (as in some instances they do) out of general sessions—and so forth.
In the first instance, I would not have any civil cause ever brought before a jury: either of course, or, as proposed in the resolutions, at the instance of a party, or by order of the court.
And now I will submit to your Lordship, as shortly as I can, why I would have jurytrial in all causes in the second instance, and at the same time why I would not have it in any civil cases, in the first instance: it being all along understood, and carefully remembered, that the decision in the first instance has been come to in the natural mode.
1. Trial by a judge, a single judge, is the original, domestic, natural, most simple mode: as such, it ought not to be departed from without some special reason.
2. Trial with the addition of a jury has for its inseparable accompaniment more or less of additional inconvenience, in the shape of delay, vexation, and expense.
3. Jury trial, therefore, cannot be subservient or reconcilable to the ends of justice, any further than as it affords an additional security against misdecision, including, what is equivalent to misdecision, failure of justice.
4. That it is capable of being made to afford a highly valuable security against misdecision I admit, or rather I aver, and am ready upon occasion to maintain: but, as this is admitted on all hands, to argue it here would be superfluous.
5. That it affords a general persuasion of security against misdecision, is also admitted on all hands: and therefore need not here be argued. And this advantage, though intimately connected with the other, is perfectly distinct from it, and abundantly more valuable.
6. Its affording any additional security, depends upon its being thought to do so, by one or other of the parties: they being, as to this point, in each individual instance, the only persons competent to judge. If, in the decision pronounced by a single judge, there be not in the opinion of either party any misdecision, i. e. if neither of them be dissatisfied with it, no other person can have any reasonable ground for supposing any: and if no misdecision, no additional security against misdecision can be of any value.
But neither a suitor, nor any one else, can have any rational ground to be dissatisfied with any decision—with a decision formed by a single judge—till he knows what it is.
7. Upon the same causes, will the general persuasion or opinion of security against misdecision, as obtainable from jury-trial, depend.
8. Therefore, in respect of security against misdecision, jury-trial, in the second instance and not before, is not less good than jury-trial in the first instance.
And now I will submit to your Lordship why, in respect of security against misdecision, jury-trial, in the second instance and not before, is better than jury-trial in the first instance.
I. In whatever cases, if any, it is neither necessary nor possible that jury-trial should contribute anything in the way of security against misdecision, in all such cases jury-trial in the first instance is purely bad: consequently, in all those cases, jury-trial in the second instance, in so far as it imports exclusion of jury-trial in the first instance, is preferable.
But cases of this description exist, and in the whole to a very considerable extent: probably much beyond all the others put together.
In this predicament stand undisputed causes. In the Report of the committee of the House of Commons (order for printing dated 2d of April 1792,) on imprisonment for debt (p. 27,) the number of bailable writs annually issued in Middlesex alone, is stated at 9,500. So many writs issued, so many actions commenced. But the writs included in this enumeration are such only in virtue of which the defendant is or may be arrested and held to bail. The total number of writs issued, including those in virtue of which the defendant can not, as well as those in virtue of which he can, be arrested—in a word, the total annual number of civil actions of all sorts commenced,—must therefore have been much more considerable.
But in that same report (p. 30) the whole number of civil causes of all sorts annually tried in Middlesex, in the King’s Bench and Common Pleas together, is stated at 750: which, adding those tried in the Exchequer, would unquestionably not have amounted to so many as 1000.
Taking this for the proportion, here then are for every disputed cause about 10 undisputed.
In the same page, the number of actions, annually terminated by writ of inquiry before the under-sheriff of London, is stated at about 924. But in this number the London as well as the Middlesex causes are included: those commenced by bailable writs, as well as those commenced by writs not bailable; and the undisputed as well as the disputed ones: these must therefore be thrown out of the account.
II. In whatever cases, if in any, jury-trial in the second instance, and not before, being not only physically but prudentially practicable, jury-trial in the first instance is physically impracticable, in all such cases jury-trial in the second instance, and not before, is better than jury-trial in the first instance: meaning by prudentially practicable, practicable without additional and preponderant inconvenience, whether in the shape of increased probability of misdecision, or of increased delay, vexation, and expense. But there are several of these sorts of cases; and, in the whole, to no inconsiderable extent.
III. So where, being in the second instance prudentially practicable, as before, in the first instance, though not physically, it is prudentially impracticable. But there are also several of these cases: and here, too, in the whole, to no inconsiderable extent.
IV. So where, being in both instances prudentially practicable, it is, in the second instance, and not before, practicable to more advantage than in the first instance, whether in the way of saving of delay, vexation, and expense, or in the way of security against misdecision, or in both ways.
For the purpose of conception, cases where jury-trial in the first instance is physically impracticable, and those in which it is only prudentially impracticable, may, as above, be considered separately:—But, for the purpose of exemplification, they can no otherwise be considered than together.
Why? Because to exhibit the forms of jury-trial will in every case be physically practicable, whatsoever becomes of justice.
In a civil case, not to speak of criminal cases, whatever cause is decided by a jury, such cause, if tried under that condition which is regarded, and justly, as essential to jury-trial—that is, to whatever superior security, real or apparent, against misdecision, it may be capable of affording—must be tried in the compass of a single sitting: or, what comes to the same thing, if any adjournment take place, that adjournment must be performed in such a manner that the jurors shall not, any of them, have any communication with the world at large: in a word, they must be in a state of seclusion, as in a Roman conclave. In civili, no instance of a jury sleeping before verdict ever reached my knowledge. In criminali, in the case of Elizabeth Canning, who in 1754 was convicted of perjury, the trial lasted ten days: during all which time, if in this respect the trial was properly conducted, the jury must have been kept in a state of seclusion: though in the account of the trial (State Trials, vol. x.) I see nothing mentioned on that head.
The operations for which, in every instance, time either is, or eventually may be, necessary, are—1. Delivery of the evidence—whether testimonial, written, real—whatsoever the cause affords. 2. Observations preliminary and subsequential, by or in behalf of the parties on both sides. 3. Charge of the judge, including recapitulation of the evidence where necessary, and observations. 4. Discussions among the jurymen, when withdrawn to their private chamber for that purpose.
But the cases (the individual cases) in which the complete performance of those several operations is physically impossible, are very materially numerous—bear a very considerable proportion to the whole number of causes destined, in appearance at least, to this mode of decision, as being commenced in a mode which admits not of any other.
Of these four operations just mentioned, three are comparatively immaterial: viz. observations by or on behalf of the parties, charge by the judge, and discussions among the jurymen: and the two last, either or both, are not unfrequently omitted in practice.
But the delivery of the evidence—of whatsoever information, being presented in that character by either party, is neither irrelevant nor superfluous, is essential to the affording the requisite security against misdecision—is essential to justice.
Numerous are the causes which receive their decision from arbitrators:—in some instances, without litigation in the regular mode: in other instances, after litigation in the regular mode: the cause, coming on in its turn to be tried by a jury, is, in this case, instead of being so tried, referred, somehow or other, to arbitration; if not otherwise disposed of.
When, in this way, instead of being tried by a jury, a cause is tried by arbitrators, the mass of evidence is not unfrequently of such a bulk, as to be incapable of being delivered in less time than several days, perhaps even weeks. As often as this state of things has taken place, the employment of jury-trial in the first instance has thereby been proved to be prudentially impracticable.
Physically impracticable, however, if no regard be paid to the ends of justice, it can not in any such case, it can not in any case, be said to be. If, the mass of relevant and not superfluous evidence being of such a magnitude that the delivery of it cannot be performed in less than ten days, no more than ten or twelve hours be allowed for the reception of it, but at the same time the forms of jury-trial are observed, and a decision—a verdict—extracted from the jury, in this case jury-trial is not physically impracticable, for it is practised.
In this case, the best thing that can happen to a cause, is—that jury-trial shall in that instance have been deemed and allowed to be impracticable. For then the attempt to try it in that mode is given up, and it is sent off to a reference, or otherwise disposed of.
If this be not its fate, a cause thus incapable of receiving a trial by jury, in the first instance, in a manner consistent with the ends of justice, receives it notwithstanding. As often as this happens, the party who is in the right is divested of that superior chance of success, which, if the cause were tried properly, he would possess: his chance of 2, 3, 4, or whatever it be, to I, is reduced to a chance of 1 to 1;—is an affair of cross and pile.
Remain to be spoken of the cases in which, though when absolutely considered, jury-trial in the first instance cannot be said to be, either in the physical or prudential sense, impracticable, it is yet ineligible: ineligible, to wit, in comparison of jury-trial in the second instance, and not before:—and that for special reasons, over and above the already-mentioned general ones.
Causes thus circumstanced, there will presently be found reason for distributing into two classes: both of them, however, agreeing in this—viz. that, if (according to the standing supposition) commenced in the natural mode (by conjunct appearance of the parties,) they would be incapable of receiving, consistently with the ends of justice, their termination on the same day on which they thus receive their commencement. Whether or no the cause can or can not receive its termination, at a period thus pure from delay, vexation, and expense, cannot be known till something in relation to it is known, viz. from the only authentic source—till the parties, being thus met together, have been heard: and as a considerable proportion of the whole number of causes may and do receive their termination at this early period, the measure taken for the attainment of the ends of justice would be imperfect, jury-trial being employed in the first instance, if, at the very commencement of the cause, a jury were not in waiting to receive it. But, as before observed, when once they have begun their business, a jury, to remain a jury, cannot part till they have gone through with it. As often, therefore, as it turns out, that, from the jury before whom the cause has thus been commenced, it cannot receive its termination, this jury must be discharged from it; and, if decided in the way of jury-trial, it must receive its commencement and termination together, before some other jury, at some other time.
Here then, besides so much of the labour of twelve men in the character of jurors thrown away, there is so much time and labour thrown away on the part of all other persons who bear any part in the cause:—judge, subjudicial officers, parties, and, if they have any, their professional assistants, with the money expended in affording a retribution to those assistants.
Moreover, of a cause thus circumstanced, another jury could not take cognisance, without further manufacture of useless delay, vexation, and expense. Whatever evidence had been submitted to the first jury would have to be submitted over again to the second.
Meantime, for want of taking it at the earliest period, some of the evidence, which but for this second jury-trial might have been had, may have been lost: and thereby deception and misdecision generated.
Moreover, of the first crop of evidence, more or less of the freshness and instructiveness may have been lost: time having intervened for premeditation, opportunity of receiving undue instruction, information from experience what falsehoods stand most exposed to detection or contradiction, what others may be hazarded with less risk. Then too comes, perhaps, an inconsistency, real or supposed, between the first edition of the evidence and the second: and discussions carried on, and time consumed, in the endeavour, successful or unsuccessful, to clear it up.
These, it is true, though not altogether without their concomitant advantages, are inconveniences inseparable from the sort of appeal called a new trial, if conducted with that full liberty of confrontation and discussion, which is necessary to the taking the best chance for the discovery of truth. But their being in that case unavoidable, is no reason for incurring them where they may be avoided.
Many, likewise, are the instances in which it would be impossible to fix a particular day for another jury, unless it were at a venture, taking the greatest length of time that in any event can be necessary. Here, then, is an indefinite quantity of delay produced, that under a permanent judge might be avoided: for, under a permanent judge, each article of evidence naturally will be, as it ought to be, received on the earliest day on which, without preponderant inconvenience, it can be had.
I come now to speak of the two classes of cases above alluded to, both comprisable under the above description, but, in a highly material point of view, standing upon very different grounds.
One case, and the more common of the two, is when the mass of the evidence which the cause furnishes, having been delivered in part, viz. so much at least, if any, as had fallen within the cognizance of the parties, or either of them, the remainder, though known to the parties by whom it is respectively to be produced, is not forthcoming at the time. “My demand,” says the plaintiff, “will be proved by Oculatus: but he lives at a distance, and it requires the power of the court to secure his attendance: or it will be proved by such or such a written document: but that is in the hands of Custos; and Custos would neither bring it nor trust it out of his hands.”—Say then,
Case 1. Evidence, all known, but not all forthcoming:—or rather, to contrast the better with the other case.—Evidence, though not all forthcoming, all known. Say now,
Case 2. Evidence, the existence of it more or less of it unknown: requiring to be brought to light; viz. by investigatorial procedure.
Investigation or investigatorial procedure—a new and necessary name, for a practice in common use, but not as yet sufficiently distinguished.
Investigatorial power—power for tracing out evidence, in the way of investigatorial procedure:—for the discovery of evidence ultimately employable (evidence fit to be received into the budget of evidence, as parcel of the mass on which the decision may with propriety be grounded,) by means of other evidence, whether itself ultimately employable or not. From his connexion with one or other of the parties, or from any other relative situation, real or supposed, A is supposed to be capable of furnishing relevant evidence. When convened, A, of his own knowledge, knows not anything about the matter: but, through him, the judge hears of B, who does. So, in regard to written or real evidence, A has not the document sought: but he indicates B, who is supposed to have it. B, being convened, if he has it, produces it: if not, he indicates C, who, if he has it, produces it: if not, he indicates D:—and so on through the alphabet.
In what precise shape the assistance rendered to justice by this power shall show itself—against which of two evils opposite to the ends of justice it shall afford a remedy—failure of justice or misdecision—depends in each case upon circumstances.
Suspecting, nay, assured of the existence of the requisite mass of evidence; but, for want of this necessary instrument, feeling his inability to bring it to light, in many instances the plaintiff, despairing of success, forbears to present his demand to a system of judicature, of whose inability to give effect to it he is thus pre-apprised. In these cases, failure of justice takes place: but nothing worse.
In other cases, assured of having right on his side, but not sufficiently attentive to the obtaining a timely assurance of the means of giving effect to it, he commences his suit, and afterwards, with an article of necessary evidence in his view, understands, when too late, his inability to produce it. In this case, the mischief takes the shape of misdecision: misdecision, to the prejudice of the plaintiff’s side, for the want of necessary evidence, existing but not producible. And here, to the suffering attached to the failure of justice, is added the vexation of disappointment, and the expense of the costs on both sides.
Thus stands the matter, where the mischief that takes place for want of this power falls on the plaintiff’s side. But the defendant’s side, though not quite so much exposed to it as the plaintiff’s, is far from being exempt from it. When it falls on this side, it is in the more afflictive shape that it falls:—misdecision, aggravated by burthen of costs.
Be the case criminal or civil, your Lordship sees how necessary an instrument this power is to the hand of justice: how lame, how paralytic, that sacred hand cannot but be, if deprived of it. A few pages further, and your Lordship shall see—if not justice, judicature—technical judicature—standing with her shrivelled hand, lame of that palsy. The right hand,—the hand by which justice should be distributed, may be seen, from a variety of other causes, subject to those fits: while the left hand—the hand which, by a pre-established mechanism, gathers in and closes upon the fees, as the Dionæa upon flies, is ever alert and vigorous.
When, at the outset of the cause, any part of the mass of evidence which it affords is unknown, the tracing it out thus from hand to hand may, considering that the hands may be at any distance from each other, occupy any length of time: the evidence of witness A being obtainable on one day, of witness B not till another day, week, month, or even year, and so on without any certain limit: half a dozen witnesses not examinable but at so many different days: on each day it being uncertain whether the next day may not complete the mass of evidence. That on each day a jury should be in waiting, for the purpose of taking the chance of being able to give termination to the cause on that day, is an arrangement, the impracticability of which will scarcely be thought to stand in need of proof.
To warrant the judge in causing the mass of evidence to be laid before a jury, whether summoned for that special purpose, or already in waiting for general purposes, there must be a sufficient assurance on his part, that all the evidence which, in his judgment, the cause is capable of furnishing, or such part of it as is necessary and sufficient to ground a decision on either side, is already forthcoming, or will be so time enough for their taking cognizance of it.
On this occasion, let it not be forgotten, that, till an article of evidence has actually been received, there can never be any perfect assurance of its being forthcoming: to whatever class the evidence belongs, testimonial, written, or real, accident or design—misconception or right conception—may, when the time comes, have kept it at a distance:—and to all these contingencies, the jury’s capacity of fulfilling the purpose for which they are brought together remains for ever subject.
But, in the case of the permanent judge, if the whole mass of the evidence has thus been really got in—got in by himself—he perfectly acquainted with it—having received it in its original and freshest shape—the grounds of the decision which the case calls for being thus completely known to him—the case in effect already tried by him—to what use try it over again, if, of all the persons concerned, there is not one who desires to have it so?
To parties, to witnesses, to juries, to judge, to everybody, double trouble: useless and factitious delay, vexation, and expense: and (fee-fed lawyers always excepted, to whom everybody’s suffering brings advantage,) not a particle of advantage, in any shape, to anybody.
In every case, no sooner is the cause become ripe for decision, than my single judge, my sheriff-depute, unincumbered with a jury, circumduces the proof (as a Scotch lawyer might say,) closes the budget, as I would say, and pronounces—not an interlocutor—but final judgment. Now from this decision, pronounced without an atom of time or money wasted, what possible prejudice can result to justice? The party to whose disadvantage it operates, is he satisfied with the decision? Nothing better could be wished for, had the cause been dragged through a thousand jury-boxes. Is he dissatisfied? He has a jury: he has it, in that case, and in that case alone, in which he desires to have it:—in which it will be—not an aggravation, but a remedy.
Supposing jury-trial, or the forms of it, forced upon the parties in every case in the first instance, the bad effects of this force are not confined to the loading the cause with this cumbrous additament where it is worse than useless; your Lordship has seen it depriving the cause of the benefit of this security against misdecision, in cases in which it would be of real use:—how frequently these cases come to be exemplified in practice, is a point which I shall have occasion to speak to presently.
At present, what I have to submit to your Lordship is—that when grafted on natural procedure, as above, the utility and efficacy of the proposed postponement is not more signal, in narrowing the application of this mode of judicature where it is useless and prejudicial, than in extending the application of it, wherever it is of real use. For, though there are cases, and to a very considerable extent, in which, in the first instance, the use of it is impracticable, and even generally recognised as being so, there is no case in which it is not practicable in every sense, when postponed as above to the second instance.
For this purpose it rests with the judge (in the first instance the same judge, eventually, in case of appeal for that purpose, the superior judge) to decompose the mass of evidence. If (as will generally be the case) the whole of it (that is, so much as one or other of the parties insists on having repeated) be not too much to be laid before one and the same jury, so much the better: but if, in the whole, there happens to be more than a jury can receive on such terms as to do justice to it—receive in the compass of one sitting—the cause being in such sort and degree complex as to contain at the same time (as, when of such bulk, it can scarce fail to do,) divers integrant parts, independent of each other, it may in such case be distinguished and resolved into its integrant parts and different integrant parts, or assemblages of integrant parts, given to so many different juries.
By integrant part, I understand so much of the mass as is delivered by witnesses, whose testimonies respectively have a connexion with each other: the testimony of each witness operating either in confirmation or information of that of the rest.
The mode and degree of complexity just described will frequently be exemplified, where the case includes a number of facts (whether individual or habitual) having, in respect of probability or improbability, no connexion with each other: 1. Debt, founded on goods sold and delivered at different times; 2. Demand on one part, set-off on the other; 3. Promise made at one time, broken at another.—Thus, in adultery:—1. Marriage celebrated at one time; 2. Alleged adultery (of course) at another; 3. Wife’s loose intercourse with other men, habit provable by one set of witnesses; 4. Husband’s loose intercourse with other women, habit provable by another set of witnesses; 5. Husband’s cruelty towards the wife, habit provable again, perhaps by another set.
But, of the time occupied by each such integrant portion of the mass of evidence, measure, complete measure, has been already taken;—taken by everybody concerned—by judge and parties. It is therefore a point pre-ascertained, and to as great a degree of accuracy as is material, what length of time the delivery of the whole and each part of the mass will occupy, when repeated before a jury.
Separating it into masses of competent length, as many as the extent of it requires, he distributes it to so many juries, giving to each jury one or any greater number of issues. One, to try the entrance into the marriage-contract, for example, if it be matter of dispute; as in Scotland, where the contract may be made, as it were, by habit: another, to try the fact of the adultery, and so on.
But, after the evidence has been once gone through—gone through in all its integrant parts—it will seldom indeed happen that the disagreement in opinion—I mean that between the losing party and the judge—will extend over all the parts. So many as the disagreement does not extend to, so many the evidence to which need not be repeated. By the party by whom the decision is complained of, of the number of facts, and corresponding integrant parts of the evidence on which it was grounded, a greater or less part will commonly, if not before, at least after the delivery of the evidence, be admitted. Thus in adultery, suppose the fact of the marriage once put out of doubt, by the uncontradicted and unquestioned testimony of the clergyman or other person by whom it was celebrated, or by evidence of cohabitation under the same name and the same roof for years;—to what use, after witnesses once heard, and the matter put out of doubt, drag them from their homes, to put it out of doubt a second time?
If, then, in such a case, for the purpose of vexation, a party should insist upon such repetition of proof in the second instance, of a fact put out of doubt in the first instance, let him do so, but at his peril: the judge à quo marking it as vexatious, it will rest with the judge ad quem, with or without the concurrence of the jury, to mark it out for punishment: to punishment in the shape, and to the extent of costs, at any rate.
Instead of being distributed among divers juries, to be decided upon, all at the same time, the integrant and distinct parts of the mass of fact may be given to different juries, or even to the same jury, to be decided upon at different times:—to the same jury not so well, on account of the danger or suspicion of embracery, and so forth.
In one case, the trying these different parts of the cause at different times will he attended with particular advantage. This is where, pronounced in one of the two opposite ways, a decision given on one of the several component parts of the cause thus decomposed, renders the trial of the rest, some or all of them, superfluous. Thus, no contract, no breach: no marriage, no adultery.
Such are the advantages which jury-trial, in the second instance, possesses over jury-trial in the first instance, even when grafted on the best possible mode, upon the best and soundest stock—I mean natural procedure.
I will now beg your Lordship’s notice for the advantages of jury-trial in the second instance, as compared with jury-trial in the first instance, grafted, as under the husbandry of learned gentlemen, upon the corrupt and cankered stock of technical procedure—stock and graft together, the tree of good and evil, not to say of evil without good—factitious delay, vexation, and expense, the fruit of it.
The conception entertained by Scotchmen, of common-law procedure in civil cases, with jury-trial in the English mode, will be very incomplete, if, to excess of delay, they do not add excess of precipitation: for, in the composition of it, vices of this opposite nature meet and embrace in the most perfect harmony. With the help of vacations (that is, pre-established denial of justice for weeks and months together,) and fixed days, and mechanical judicature (of which in my first letter,) instead of a small part of one day, or a small part of each of two days (for where the ends of justice are the objects—I speak of the courts of conscience—a great majority of the whole number of causes actually take no more,) six months or twelve months, or a great many more months—in a cause as simple as any that ever came before a court of conscience—consumed in doing nothing, or worse than nothing:—delay, the staple commodity of Judge and Co., manufactured in this wholesale way, for the accommodation of their best customers, the malâ fide suitors. Then come circuits, one or two in a year, according to the latitude: from part of one day, to the whole of three or four days, allowed to a place, whatever be the number of causes to be tried at it, and whatever the quantity of time required by each:—a short and limited length of time, and that frequently short in the extreme, for an unlimited quantity of business.
Alas! where, my Lord, is the wonder?—That for which sufficient time cannot in any case be wanting, is—receipt of fees: that for which it matters not how short the time, is the service to be performed in consideration of those fees.
Has delay its profits? Precipitation is not less productive. But your Lordship will see:—
Of the whole number of causes set down for trial in a year, one part (who can ever say how large a part?) tried badly: another part, as yet unknown, but not incapable of being known (it rests with your Lordship to know it,) and, in the mean time, known not to be a small one, not tried at all. When this is the result, there are three modifications, among which it takes its chance, all of them repugnant to justice.
I. One is, the going off in the character of a remanet, or remanent: i. e. to be tried at the next sittings or assizes. Consequence of the postponement as follows:—
1. Delay. Cause (suppose) pecuniary—(plaintiff in the right, as in general he is)—loss of interest on the principal representing the value of the property adjudged by the verdict: amount of interest, if at the sittings, say three months; if at the assizes, elsewhere than in one of the four northern counties, six months: if in any of those counties, twelve months. For this is among the punishments a man is loaded with, for the offence of living in the country, and the doubly heinous offence of living in the northern parts of it.
2. Expense. Expense of trial somewhat less than doubled, on the second—(trial, it cannot be called, the cause not having been tried when it should have been tried, but—) setting down of the cause upon the list of causes that ought to be tried—some abatement, perhaps, in the professional fees: in the official, scarcely.
3. Danger of misdecision, or equivalent failure of justice, in consequence of the delay: deperition of necessary evidence, deperition of the matter of wealth, in the hands of the adverse party, in the character of eventual matter of satisfaction:—deperition, viz. with reference to the party in the right—by dissipation, by concealment, or by exportation.
II. Another mode of termination is by what is called a compromise: which, being interpreted, is denial of justice.
By the terrors of remanentcy, as above explained, the plaintiff consents to accept a part of what is his due, giving up the rest. By consent, the traveller gives up to the unlicenced plunderer what money he has about him, in order to save his life. By consent, the plaintiff gives up to the malâ fide defendant, armed with delay, put into his hands by his learned partners, value to any amount, viz. to whatever can be agreed upon, with extortion on the one part, and distress on the other, to settle the account.
III. The third and last remaining mode of termination is by reference. Reference is either to one referee, agreed upon on both sides, or to two or more referees, called arbitrators, named, one or more, seldom more than one, on each side.
Referees may be either lawyers, or non-lawyers: lawyers, very frequently:—whether most frequently or not, is more than I can take upon me to pronounce: it is among the thousand things in and about law, worth knowing and not knowable.
In this case, this is what a man gains by having recourse to technical procedure; to that which by courtesy passes among lawyers by the name of justice:—the advantage of finding himself, at the end of the suit, in the same situation as he was at the commencement of it, always excepting what concerns the delay, vexation, and expense:—licence to obtain justice, if he can, at the hands of non-lawyers, or lawyers—after paying for it, and not getting it, at the hands of lawyers.
Does your Lordship feel any such curiosity, as that of knowing the number, absolute and relative, of these causes in which justice is paid for, and not done? In your Lordship, will is volition, clothed and armed with power—in me, it is bare inert velleity:—meantime accept at my hands what chance presents to them:—
Times Newspaper, 16th December 1806.—“Yesterday morning, in the Court of King’s Bench, Guildhall, eight causes for special juries appeared on the list for trial. They were all referred: in one only, a verdict was taken, pro formâ, for the plaintiff.”
The whole number without exception—in all of them justice paid for—in all of them justice denied! This, where time for trying them, for pretending to try some one of them at least, could not be wanting. Sent off untried? For what reason? To all appearance, because, in the instance of each such cause, there was something in its complexity, and thence in its length or intricacy, that rendered it incapable of being so tried, even by select men, men of cultivated minds, to any good purpose. The causes, London causes, and those special jury causes; therefore mercantile causes of the higher order:—causes naturally attended with a large measure of complication.
Here, no want of time: the causes therefore capable of being tried, one or more of them, that same day, howsoever badly. How then must it be at the assizes?—where, to any degree of complication, and thence of prudential impracticability, is so frequently added absolute physical impracticability, through denial of necessary time.
In another case—the date of which I must beg to stand excused from mentioning—while the pleadings are opening, counsel for defendant proposes a reference, which the plaintiff, being present, at length assents to. A referee, really above all exception, and pro hâc vice a non-lawyer, is agreed upon. The noble and learned judge, having perused the pleading, certifies them to be very intricate, highly approves of the reference, and declares that it does credit to the counsel on both sides.
The virtue of candour—your Lordship sees (for, if this be not the proper name of the virtue thus displayed, I must confess my inability to find for it any other)—the virtue of candour (for this is the virtue I have heard named a hundred times on similar occasions)—in short, whatever the virtue displayed on this occasion was,—was displayed by learned gentlemen: and, lest virtue should fail of its reward, the praise of this virtue, whatever it was, was, with accustomed liberality (virtue for virtue,) bestowed upon them by the noble and learned lord.
My Lord, though of my own knowledge I know nothing respecting the correctness of this account, I should find no sort of difficulty in crediting it. In the state of things in question, it is natural that learned gentlemen should display such virtue: it is natural that learned lords should bestow such praise on it: not unfrequently has it happened to myself, to hear like virtue rewarded with like praise. Without any loss of fees, the whole body of learning, lord and gentlemen together, gains so much ease: the whole body of learning goes so much the sooner to its dinner. Ever and anon, learned gentlemen, one or more of them, acquire the faculty of displaying other virtues in the character of referees: the virtue of justice, in the award when made: the virtue of patience (for fees de die in diem are no slight pledge of patience) by the care taken not to be precipitate in making it. The whole body of learned gentlemen acquire ulterior chances for ulterior displays of virtue: by motions for setting aside the award when made: by motions for attachment for non-performance of it:—two species of motion-causes, setting out from opposite sides, but meeting at the same point.
Here, then, we see a species of judicature, of which the distinguishing characteristic is the being altogether inapplicable in effect, in a large proportion of the instances in which it is applied in demonstration and pretence: a feature of deformity altogether without parallel in the worst mode of judicature that can be found in the same country or any other. And this is the species of judicature, which, in a plan of reform, it is proposed to introduce, and without any change, into a country as yet unvexed by it.
Day by day, this mode of judicature is seen to stand in point-blank repugnancy to the ends of justice: practicable, only in demonstration and grimace: impracticable, prudentially, and even physically, in effect. In every such instance, the real effect of the institution is to serve the partnership, and particularly in the higher branches, in the character of a false pretence for receiving money—receiving without earning it.
But the oftener the repugnancy is brought to view by experience, the oftener this pillage is repeated, the more abundant are the occasions on which this meed of praise is earned on one part, bestowed on the other. The murmurs of suitors are drowned in a concert of praises: a concert, in which lawyers, all amateurs, are sole performers: a concert performed by them, for their own benefit, and at the expense of justice.
I speak not here of the cases, numerous and extensive as they are, in which the jurors are mere puppets, their minds no more applied than that of the Emperor of Morocco to the decision given in their name:—Special verdict found for them by learned gentlemen, jurors contributing nothing but a stare:—verdict taken for them on this or that one of half-a-dozen or a dozen counts; said counts all lawyers’ lies but one:—one of the twelve taken in vision out of the jury-box, that the absence of the plaintiff, who stands before them, may be recorded by order of the judge—(Alas! I was confounding—though in perfect innocence—lie with lie;—withdrawing a juror, to make a drawn battle; and calling the plaintiff, that, by saying I am not here, he may, under the loss of that cause, console himself with the prospect of losing another.) These, with instances in plenty that might be added—more apposite, more impressive, if they were worth looking for—would, if detailed, make it necessary for me to attempt to drag your Lordship’s conception, along with my own, through the filth of fiction:—and sufficient to the day is the evil thereof.
To those whose love for the system rests on the imposture mixed with it, all this appears right and proper: the appearance of a jury, and the people deluded by it, which is all that is wanted. But my jurors, my Lord, are not puppets. I wish not to trouble them often; but when they do come, they come for use, and not for show.
All that mockery would vanish of course, were the cognizance given to the jury reserved, as proposed, for the second instance.
On this occasion, a word or two more may perhaps be not ill bestowed on the practice and power of investigation. In natural procedure, there being no bars to shut it out, it takes place (your Lordship has seen how,) of course.
Without any special authority (for there needs none,) every justice of the peace exercises it, whether sitting out of general sessions, and thence free from technical trammels, on matter submitted definitively to his cognizance, or carrying on, under the statute, a preparatory examination in a case of felony. Under the like liberty, every committee, and every commission of inquiry, pursues, for the discovery of truth, the same necessary course:—pursues it, through any number of intervening links or channels; regardless (nothing calling for regard) of the difference between this less direct, and the more direct or immediate mode, of obtaining ultimately-employable evidence.
The case is—that it requires art and contrivance—science and regularity—to bereave the hand of justice, of an instrument at once so natural and so necessary.
Such ingenuity is not wanting to English-bred technicalism. The effect is produced by confining the efficient part of the course of procedure within the compass of one single sitting. A, who knows nothing, indicates B, who knows everything. But before B can be so much as sent for, the jury-box is emptied.
As little is it wanting to Rome-bred technicalism. A, who knows nothing, indicates B, who knows everything. No want here of time: sittings in any number: judge’s pay—(for an examiner or examining commissioner is a judge)—judge’s pay per diem; other learned persons’ pay per number of words: words and sittings consequently not scarce.—A, who knows nothing, indicates B, who knows everything. But the scene lies in the judge’s whispering-closet: from which all who have any interest in the discovery of the truth are carefully excluded. The persons to be examined are predetermined: and, by the solemnity of an oath, the seal of secresy is applied to the lips of the judge.—A, who knows nothing, indicates B, who knows everything. But B, who knows everything, is unknown to the persons without whom he cannot be had.
Such being the imbecility of the trunk (I speak of Rome-bred procedure,) such is it in four at least of its branches:—Continental law in general:—English equity law:—English (coinciding in this point with continental) spiritual law:—English (coinciding with continental) admiralty law.
If everywhere the hand of justice labours under this palsy, it is because everywhere she has found such regular-bred practitioners to tie up the nerves.
An occurrence, that happened not many years ago—one of a thousand that are happening every year—may help to place in broader light the two companion pictures—of real justice, in her native vigour, and sham justice, in her straight waistcoat.—A man dropped out of his pocket bank-notes to the amount of about £500. They were found by another man, who, being poor and illiterate, was unconscious of the value of his prize. The value opening to him by degrees, he fell into negotiations with Jews and Gentiles, and disposed of it, or a part of it, at an under value. It was a case for trover: out of the multitude of instances in which the action so denominated is brought, one of the very few in which it can be brought without a lie. No one to make oath of felony, or cause of suspicion of felony. No felony, therefore no legal ground for examination by a justice of the peace. But among unlearned judges in general, and among those of the London police in particular, strange as it may seem to learned ones, there does exist a sort of principle or whim, whatever be the proper name for it, called the love of justice. It is by this principle, or this whim, that they are led, on such a variety of occasions, to “do good by stealth,”—your Lordship will see how: and as they never find it “fame,” that being a monopoly in the hands of their learned betters, whatever is done by them in that way, is without any expense to any body in the article of “blushes.” In the particular instance in question, at the Queen-square police-office, Mr. Colquhoun, hearing of the loss, took the business in hand: and, laying about him, with his so well known activity, in this irregular way—hitting the mark by pushing in quart, where learning would have missed it by pushing in tierce—got back for the loser his £500, except a small part that had been spent. From link to link, he followed up the chain of information, as if it had been by an examination, carried on under the statute in a case of felony. Warrant none, there being no legal ground for any such coercive instrument: no witness convened but by a summons; to which, had the impotence of the technical system, to this, as well as so many other good purposes, been known, no regard would have been paid. Fortunately for justice, poverty, or simplicity, or terror, withheld the confederates, one and all, from applying to an attorney. If justice be a friend to man, the omission was fortunate: since it is to that she owes that technical judicature, or its terrors, did not tie up her hands.
All the learning in Westminster Hall, armed by all its power, would not have got for the man a single farthing of this £500. The finder, with the money in his pocket, would have moved off, or spent it, or shifted it from hand to hand. To the loser, the best thing that could have happened would have been, to be apprised in the first instance of the impossibility of recovering the money, and so to have sitten down quietly with the loss. Another result would have been, the commencing the action, and for want of that power of investigation which in a civil case technical procedure does not give, suffering a nonsuit, or judgment as in case of a nonsuit, with three or four or five score pound to pay, for costs on both sides. Another, and still worse misfortune, would have been the getting a verdict, and thereupon, by a sort of a vehicle called a writ of error, find himself set down, and then hung up, in a place called the Exchequer chamber, where he would have had a year to cool his heels, while the finder was spending or securing the remainder of the £500:—deducting, inter alia, for merit crowned with learning and nobility, a slight retribution, of which Lord Ellenborough can give your Lordship a much more particular account, than it is in my power to do at my humble distance. But of this in another letter, in which your Lordship may take a nearer view of the difference between the love of justice and the love of fees.
As to Scotch judicature, though another twig of the old stock, I should hope to find that, somehow or other, she has escaped this palsy; or, at the worst, that it has its intermissions. No jury: therefore no necessary compression of a trial into a space of time incapable of holding it. At Edinburgh, the Lord Ordinary—that is, not he, but a clerk, or a clerk’s assistant (Lawrie, p. 110,) takes the evidence; and, if he proceeds in the manner of the Lord Ordinary on oaths and witnesses, he admits “parties and their advocates” to be present (ib. 105:) and in the country “before commissioners, the depositions are taken (ib. 107) in the same manner as before the Lord Ordinary.” Though learned lords know better than to allow, to any such one of their deputes to whom they intrust this vital part of judicature, the faculty of pronouncing any decision, on the evidence that nobody but himself has heard, or will hear—his door (I see) is not always shut against parties, or at least not against parties’ lawyers; and, seeing no limit to the number of his sittings, the conclusion I draw is—that when A, who knows nothing, indicates B, who knows something, it may happen to B, in that event, to be heard.
Diligence, Scotico-jargonicé, means, inter alia, an order to a man to appear in the character of a witness: for among Scotch, as well as English lawyers, it is a rule, that when a word in use among the people is employed, it may be employed to mean anything but what the people mean by it. Diligences are the nets employed in Scotland to fish for witnesses; and, seeing nothing to hinder but that, from the beginning to the end of the career of factitious delay, diligence may follow upon diligence, I see nothing to hinder but that when it happens to an ignorant witness to have pointed out a knowing one, the knowing one may be heard.
But, under the management of your Lordship’s learned reformer, English is to be the model of Scotch justice:—Juries, for ever! and in the true English style! And thence comes my apprehension, that, either for want of thought, or from thought twisting itself to the sinister side, this palsy may be inoculated into Scotch justice, along with so many others from the same source.
Thus stands the matter, in respect of the provision made for the discovery of sources of evidence as yet unknown. If in this deficiency in the system, the situation of the authors considered, there appear not much cause for wonder, there will appear still less, when it is observed how, by another of its vices, sources of evidence already known are exposed to perish without remedy. During the six or twelve months, or any greater number of months, of the factitious and unabridgeable delay, fortune is not always idle. A necessary witness, whose testimony would, under the natural system, have been collected the first day—this necessary witness (suppose) dies: thereupon, along with him, perishes the plaintiff’s or the defendant’s right:—for in all that time, the system has afforded no possible means of preserving his evidence.
For the relief of this disorder, under English law so carefully inoculated and nursed by one sort of lawyer—the common law judge—up comes another sort of lawyer—the equity judge—with his sham remedy: bill in equity for examination in perpetuam rei memoriam, or examination de bene esse.
In both these instances, a previous suit in equity is necessary:—with its attendant train of extra delay, vexation, and expense.
In both instances, the evidence is collected in the bad mode—put into the bad shape—attached to that modification of technical procedure:—with its attendant danger of misdecision.
In the case of the examination in perpetuam rei memoriam, the suit has no other object:—and, admitting of no decision, ends when that object has been obtained, or found unattainable.
In the case of examination de bene esse, a suit having an ulterior object being already instituted, the effect of the application for an examination in this mode, or rather upon these terms, is only to procure the examination of this or that witness to be accelerated;—performed before the defendant’s answer has come in, though not before he has appeared (i. e. without appearing, has submitted to employ an attorney in his defence;)—performed at that premature period, antecedently to the stage appointed by the general rule for the examination of all the witnesses.
In both cases, there is a chance—but, on this occasion, it were far too much to undertake to explain what chance—that the evidence so collected under the authority of a court of equity may come to be employed in a trial at common law, and laid before a jury.
But in neither case can it be so employed, unless the witness so examined be, by death, or perhaps by incurable infirmity, disabled from attendance. Moreover, in both cases, besides that this remedy, even when admitted to be applied, is thus inadequate, and no less apt to afford aggravation than relief, so scanty is it in its application to the field of law, as to cover but a small fragment of the extent of the demand.
No such remedy, where the person of the plaintiff, or of any one else, through whose person his mind is wounded—none where his reputation is the subject of the injury.
No such remedy, where, the subject of the injury being this or that individual article of specific moveable property, the injury consists in destruction or deterioration, the result of negligence or malice.
No such remedy, in a word, beyond the comparatively scanty range of equity jurisdiction; of the imperfection of which, in point of extent, this sample may serve: for, as to the marking out its limits, a mystery, which remains such to the most learned eyes, will not be undertaken to be revealed, especially in a parenthesis, by this unlearned hand.
But, even within this narrow range, it may be a question, whether, upon the whole, justice, so far as jury-trial is concerned, is anything the better for it.
Excepting (for special reasons, too special to be here detailed) the case of a will, the validity of which it is meant to secure against dispute—without some apparent danger of death, as likely to ensue before the witness can be presented to a jury-box, a man will not be apt, even where equity and common law join in allowing it, to betake himself to so expensive a security. Were such precaution natural, the use of it would be general, in all cases in which the importance of the cause presented a warrant for the expense. The case of a will (as above) excepted, the use of this security is in a manner confined to the case where imminent danger is certified by old age or particular infirmity.
The suitor, then (say the plaintiff,) having notice of the indisposition of the witness, if so it be that he has law and reflection enough to be aware of the peril that awaits him, repairs accordingly to his attorney. The scene lying most probably in the country (the country containing seven or eight times as many inhabitants as the metropolis) while he is occupied in procuring an interview with the attorney, or the attorney in corresponding on the subject with his agent in town, and the one or the other in drawing instructions for the bill in equity, and counsel in town or country in perusing and settling the bill or drawing the interrogatories, or the agent in town in performing the operations preparatory to the taking out the commission for the examination of the witness, or while the commission or the commissioners are upon their travels—the patient dies, or loses his recollection, or does not choose to be disturbed, on the subject of a dispute which to him is a matter of indifference:—not to mention that men are apt to die at short notice, that a disorder which proves mortal is not always at the outset known to be so, and that it does not necessarily follow, that because it happens to me to stand in need of a man’s testimony, his manner of life, and the state of his health, lie all along within my knowledge.
Of this incidental equity suit, thus to be squeezed into the belly of a lawsuit, the certain expense is, in the greater number of instances, greater than the whole value in demand in the lawsuit: greater not only in the majority of the suits that would be instituted under the natural system, but in the majority of the suits that are instituted under the technical system, notwithstanding the exclusion put by it upon so great a majority of suits and suitors.
Of this incidental suit, the costs on one or both sides are borne by the party whose misfortune it is to stand in need of testimony thus circumstanced: and this not only in the first instance, and while as yet it is unknown whether his demand be just or no, but even after the definitive judgment given, and the justice of his demand established by it.
If the patient recovers, in such manner that his testimony is capable of being delivered at the trial, so much the worse for the party who stands in need of it: for in that case the testimony must be collected on this second occasion in the only mode in which it ought to have been collected on any occasion, and the expense of collecting it, including travelling expenses, demurrage, and so forth, is repeated.
All these considerations laid together, it would be matter of satisfaction rather than regret, should it be found, as I am confident it would, that in comparison of the number of instances in which it might be employed, the instances in which this insidious remedy is actually employed are extremely rare.
In Queen Anne’s reign, on the occasion of the act which afterwards passed for the amendment of the law (4 & 5 Ann. ch. 16.) this defect in jury-trial, as then and still constituted—a defect—not in the composition of the tribunal, but in the course of procedure anterior to the day on which the cause is brought before that tribunal—came under the view of parliament, and was attested by the recognition of both houses. Under the guidance of Lord Somers, the Lords proposed a palliative, at once inadequate and dangerous: under the guidance of Mr. Pulteney, the Commons rejected, and prevailed upon the Lords to join in rejecting, this palliative, but for reasons, a material part of which operates in condemnation of the still subsisting practice.
The proposal of the Lords (Journals, xviii. 69) was, that “after issue joined, in any action to be brought in the courts of Westminster, upon oath made that any witnesses cannot be present at the trial, by reason of their being to go beyond the seas, or by reason of sickness, or other infirmity; it shall be lawful by rule of court, for the plaintiff or defendant to exhibit interrogatories to such witnesses to be examined thereunto, upon oath, before one of the judges of the said court, or before commissioners to be appointed under the seal of the court; which depositions may be made use of at the trial, in case the witnesses cannot be there; and said depositions shall be afterwards entered or enrolled in the said court.”
The mischief having its root in the essence of the technical system, no remedy, leaving the basis of that system untouched (refusal to hear parties and witnesses at the outset,) could operate as anything better than a feeble palliative:—but this remedy fell short even of that feeble palliative. A case to which it applied itself, besides the somewhat less exceptionable ground of “sickness or other infirmity,” was the case of a design, on the part of the witness, to go abroad: a case to which it did not extend was that of death. To save himself from the ordeal of cross-examination, a man engaged by corruption ab extra or ab intra to give false testimony, may feign (and what more easy than to feign, and in a manner not to be detected?) “sickness or other infirmity?”—or, what is much more simple, if it be worth his while, he may pretend obligation to go abroad, take a trip from Dover to Calais, and so go abroad on purpose: but to no such purpose will a man either die or feign himself dead. Examination, taken in either of the modes thus proposed by Lord Somers, might therefore, if under condition of not being used but in case of death, have, comparatively speaking, been legalized with little danger: and in this case, the earlier taken, the more effectual the remedy. But the stage of the cause proposed for taking the examination was—not till after issue joined; that is, not till after two, three, or any greater number of months after the commencement of the cause.
Of the body of objections, which operated to the conviction of their lordships (Comm. Journals, xv. 198,) an indisputable part was composed of such as have no force but upon the supposition of the radical impropriety of equity practice: of an essential part of the practice of the court, of which the noble and learned lord their spokesman, the great Lord Somers, was sole judge: the impropriety (I mean) of employing one judge to hear and see witnesses—another, and without the first, to apply their testimony or supposed testimony, to its use:—an impropriety most explicitly confessed by the Lord Chief-Baron Gilbert in the book called Bacon’s Abridgment, title Evidence, vol. ii. p. 625: and which, I have not the least particle of doubt, would with equal frankness be confessed, or rather proclaimed, by Lord Somers’s noble and learned successor, should it occur to your Lordship to put the question to him across the convivial table.
Meantime, supposing the admission, thus proposed to be given to the testimony in this make-shift shape, had been confined to the case on which, in the most perfect shape, testimony from the source in question is not to be had—on this supposition, the proposed amendment (it is evident) would have been a real improvement: I mean, in so far as it consisted in allowing the application to be made in the common-law court, in which the suit was already lodged. The use of it might in that case, and of course would have been, co-extensive, in civil matters at least, with the jurisdiction of the court, in which the evidence was to be employed: and, except the radical inconvenience of committing the decision to a judge, by whom the witness, at the time of his examination, was neither seen nor heard—an inconvenience which, however, cannot always be avoided—the mode of collection would have had, or might have had, in every other particular, the advantages which jury-trial possesses in common with the natural mode:—viz. cross-examination by or on behalf of the adverse party, with the benefit of questions arising out of the answers, and so forth.
But, in this proposed amelioration of the technical system, whatsoever good there was or could have been, what is it but an approximation, and that a remote one, made towards the natural mode?
On all such occasions, what care, what tender care on all sides, to avoid seeing the object—the unexceptionable, the perfect system—all the while standing close under their eyes!
In respect of the occasion and the purpose, correspondent to the English practice of examinations in perpetuam rei memoriam, and de bene esse, is the Scotch practice of examination of witnesses to lie in retentis. But, whereas the jurisdiction of English equity extends over but a part, probably the smaller part, of the field of what, in one of the four or five senses of the word civil, is called civil law, the applicability of the Scotch practice of taking depositions in retentis is co-extensive (I take it for granted) with the jurisdiction of the Court of Session; an authority which, in one way or other, covers the field of civil law in its whole expanse:—not to mention a considerable portion of the field of criminal law.
Scotland not being afflicted by any such distinction as that between law and equity—to the application of this remedy, such as it is, no additional suit in another court is in Scotland necessary: but even there, whether, upon the whole, justice finds most matter of satisfaction or of regret in the facility of resorting to it, is matter of account, the statement of which is beyond my competence.
In some other place, I propose to myself to submit to your Lordship some sort of apperçu of the price paid—paid by the people—paid in the several shapes of delay, expense, and denial of justice, not to speak of misdecision—for the benefit of jury-trial, at its present stage, grafted as at present on the technical system;—and for the services rendered by learned lords and gentlemen—to somebody, doubtless, but to whom I cannot find, except to learned lords and gentlemen—by the upholding of that, together with the other branches:—as likewise what are not, as well as what are, the considerations, by which this popular branch of the technical mode of procedure has never ceased to command their eulogy, any more than the natural mode their silence. But, fearing to diverge too far from the more immediate subject of this letter, I dismiss these topics for the present.
Having thus submitted to your Lordship the only plan, upon which, in my view of the matter, jury-trial in civil cases can in Scotland be rendered, in any considerable degree, subservient, upon the whole, to the ends of justice, I proceed to consider so much of the proposed plan on this subject, as appears on the face of the resolutions.
From the very little that is there stated, what I see distinctly enough is, in what way this supposed remedy against factitious delay, vexation, and expense, if that be among the objects of it, presents a probability of giving increase to that aggregate mass of inconvenience: what I am unable to discover is—by what means it presents a probability of making any defalcation from that mass.
No particulars being given, concerning the mode in which the several questions of fact are designed to be brought before the jury, to speak of this and that and t’other mode in the character of possible ones, and then to say—this will not diminish delay, &c., nor this, nor that—is a sort of exercise that would be little better than fighting shadows.
What I see beyond doubt is—that, to lay the points in question before a jury, abundance of new formalities must be introduced: what I do not see any probability of, is—that, upon the introduction of this new mass of formality, any such portion of the existing mass, as shall be equal to it, will be cleared away. In England, a cause in which a jury is employed, is sooner terminated (it has been said,) than, without a jury, a cause of the same nature would be in Scotland. Be it so:—but it does not follow, that by the application of jury-trial, even in the best mode in which, under the existing system of technical procedure, it could be applied in Scotland to that same cause, the cause would receive its termination there sooner than it does now. In the midst of so much factitious delay, what little abbreviation there is in the English mode, depends upon the system of pleading taken in a mass: and I have no more apprehension of seeing the Scotch nation submit to defile itself with any such abomination, than I have of seeing the port of Leith opened, for the importation of a pack of mad dogs, or for a cargo of cotton impregnated secundum artem with the plague.
In English pleading, what little abbreviation—defalcation (I mean) from factitious delay—what little abbreviation of that sort there is—and that purchased at the expense of intelligibility and cognoscibility, speaking with reference to the body of the people—consists in the use of those general propositions or forms of averment, on the part of the defendant, called general issues:—not guilty;—non-assumpsit, and four or five more; some of which include others, so logically have they been framed. But these propositions have not, any of them, any meaning, but in the way of reference: and their meaning varies ad infinitum, according to the object to which they are referred:—it varies, according to the genus of the action, as characterized by the declaration (the instrument of demand exhibited on the part of the plaintiff,) and the counts, the specific demands and allegations contained in it. Not guilty, for example, the most changeable of all these Proteuses, involves two clusters of propositions, which are altogether different, according as the action it applies to is an action of trover or ejectment. In one of the instances it entitles the defendant to prove, by way of defence, one or more of one list of facts; in the other, one or more of another list of facts, and so on: lists tolerably well settled (viz. among lawyers) for ordinary purposes, by arbitrary, and absurd, and inconsistent decision, but altogether undiscoverable by the light of common sense, and thence incapable of being understood, even by the enlightened part, of the body of the people.
The two general issues here mentioned, corresponding to three formularies, or genera of actions (non-assumpsit corresponding to the action of assumpsit) are mentioned, because under one or other of these actions, but in by far the largest proportion under assumpsit, nine tenths at least of the whole number of causes, commenced in the regular way in the common-law courts, would be found to be comprised.
But it is to the use of these abbreviations, one advantage of which (professionally speaking) is, that they are so frequently found to stand in need of re-dilatations, under the name of papers of particulars (with fees for the same,) that everything that savours of dispatch is confined in English practice: and this jargon, unless, as in British India, planted by the bayonet, being incapable of taking root in any other than English ground, along with it vanishes all the advantage, looked for, or pretended to be looked for, on that score.
But this prop, in the character of a technical support for the jury-box, being thus found eaten up by the dry rot, there remains no other regular common-law support than that, the rottenness of which is conveyed to every ear by the name of special pleading: a mass of corruption, on which a stigma is regularly imprinted—I will not undertake to say exactly how many times—some dozen of times at least—every year, by the hand of the legislature:—as often, I mean, as allowance is given to plead the general issue, and give the act in evidence.
Remain (it may be thought) for supports to the jury-box, the papers of particulars above alluded to, or whatever else, under the name of “relevant facts alleged in the summons or other writ,” &c., or “admissions or denials thereof,” may be proposed to be substituted to them on Scottish ground. But these, so far at least as they extend on English ground—the only ground on which they have ever been placed—are but fragments of a new system of special pleading, already dry-rotted, serving no other purpose so assuredly and so completely, as that of a certificate, bearing witness to the rottenness of the old.
Call them (these conflicting masses of allegation)—call them by any name—English or Scottish—counts and special pleas—or counts on one side, with papers of particulars on either or both sides; “summons” (with the libel in it) on one side, “whole defences,” distinct or indistinct, on the other—the same religious care is observable, on both sides of the Tweed, to prevent their cutting the thread of the suit too soon—to prevent their answering any other purposes, to the prejudice of the ends of judicature:—the same effectual care to shut out that simultaneous, reciprocal, complete, and correct explanation, which nothing but the presence of both parties facing each other under the eye of the judge, can give—to prevent the stemming of that torrent of learned and indefatigable mendacity, which spreads such fertility over the ancient demesnes, attached to inns of court and colleges of justice.
Another support indeed, capable of being provided, is a suit in equity: as where, in the language of English equity, an issue is said to be directed. Upon the hearing of the cause, on the ground of the mass of evidence already delivered in another shape, the comparative untrustworthiness of which is thus recognised, an allegation or set of allegations are fixed on, and, by the help of a lie, dictated by the judge, the truth of it is sent to be inquired after, on the ground of testimony, delivered in that more trustworthy shape, in which alone (except now and then in a case of necessity) it is ever suffered to be presented to the jury-box.
To the adoption of this basis, no objection on the score of probable repugnance seems opposable. Unfortunately, by the same causes, and in the same proportion, as the practicability of it is increased, the utility is diminished. The cause is first to be tried in some one or other of those bad modes, to which, in consideration of their acknowledged badness, jury-trial is proposed to be substituted: under the name and notion of a substitute, jury-trial would, on this plan, be erected as a superstructure, on an edifice, the immoderate bulk of which is the very subject of complaint.
At the end of a course of special pleading, in the original mode, the points in question are somehow or other brought to an issue, without the application of any such instrument as human reason, on the part of the judge. In the new-invented mode, by papers of particulars, the use of that instrument, in that learned hand, is, or at any rate might (I should suppose) be, alike spared. But, in the case where an issue is directed, nothing that is to be done being predetermined by any pre-established forms, whatsoever might by possibility be done, in practice nothing ever is done, without a previous settlement of the tenor, the very words, of the issue, under the eye of a judge. This function—being, like so many other of the most essential functions of judicature, beneath the dignity of so great a personage as the judge so called—is turned over, that is, turned down, to a subordinate sort of judge, called a master:—more delay, more business, and more fees.
This practice of directing issues, were it imported into the port of Leith, the same incompatibility with superior judicial dignity would—though not necessarily, but too naturally—be imported along with it.
Meantime, this operation of directing an issue or issues is not materially different from that which my judge would have to perform, in the case where jury-trial were called for by either party, after a decision pronounced in the character of a definitive decision, by himself. And, unless the instances, in which, under the existing practice, reference is thus made to a jury, are much fewer than they ought to be (which, under the recognised enormity of the addition to the expense, may not improbably be the case,) your Lordship may conceive by anticipation, how few the instances would be, in which, on my plan, the good men and true of Scotland would find themselves saddled with this burden, in comparison of the instances in which they would have to submit to this vexation, on any plan which the learned reformer could approve.
One actual, and therefore possible, though even rarely exemplified, technical substratum for jury-trial (I am sensible,) still remains; and that is the sort of cause, to which, finding no name in use for it, though in every technical court they are heard every day in swarms, I have been obliged to make a name, and call it a motion-cause; a cause carried on upon no other than the favourite sort of evidence already mentioned—affidavit evidence. Petitions to the Chancellor in matters of bankruptcy form the most striking—and probably, in respect of average quantity of value at stake, the most important—exemplification:—petition, a sort of motion, upon paper. In the case of these petition causes, an issue is now and then directed; and, even in other motion-causes, in other courts, reference has been known to be thus made to a jury, though much more rarely.
But, to the working after this model, there are two objections: one on the ground of justice and utility, the other on the ground of practical probability of adoption.
On the ground of justice and utility, the objection is—that, under this mode of trial, the encouragement to perjury is so great, that the facts, capable of being extracted out of the mass of testimony for the purpose of being taken for the subject of the issue, will be liable to be concealed or overwhelmed, by the mass of false facts advanced, under the protection afforded by that mode of trial against the scrutinizing power of counter-interrogation: not to speak of its dilatoriness in comparison of the natural mode, and its furnishing no witnesses but willing ones. It presupposes, therefore, the universal extension of a mode of conflicting testification, alike favourable to the generation of perjury, and unfavourable to the direct ends of justice.
I throw out this objection, rather as matter for consideration, if it were worth while, than as being assured of its not being upon the whole an advantageous succedaneum to the existing system.—But what renders it not worth insisting on, is its failure on the ground of practical probability. A motion-cause, though, in comparison of a cause carried on under the natural system, enormously long, is, in comparison of a cause carried on under any other branch of the technical system, as conspicuously short. It moreover imports a withdrawing of the mendacity-licence, and a substitution of a meagre and comparatively close discourse, purporting at least to be the discourse of the party himself, to the exuberant and inexhaustible effusions of professional and learned eloquence.
In the case of an incidental application, springing out of a cause already introduced and carried on in regular form, such abbreviation may be admitted. But, to apply to the body of every cause any such short method, would be an infringement of the prerogative of the college, a contempt for the wisdom of ages, and a violation of the act of union, if not totidem syllabis, at any rate totidem literis. Indeed, be the occasion what it may, and the arrangement proposed what it may, to be assured of its being a violation of the act of union, there needs no more than the assurance of its being a defalcation from the mass of delay, vexation, and expense, and thereby from the reward allowed by the wisdom of ages to learned industry.
Accordingly, it is merely in the character of a model already existing in the English repository, that I mention this possible support for jury-trial in Scotland—and that no article, in the list of these models, may be omitted—and not with any the smallest expectation, any more than wish, of seeing it recommended to your Lordship’s notice by your Lordship’s learned reformer, or any other learned adviser, for any species of cause;—meaning always principal not incidental causes.
By what means, therefore, this additional formality is likely to be made to operate in the character of an instrument of dispatch, passes my comprehension: but how it may be, and is likely to be, made use of as an engine of delay, to that question answers offer themselves in abundance.
Occasion has already presented itself—not surely of informing, but, however, of humbly reminding your Lordship, that there are such sorts of causes as malâ fide causes. Of the existence of such iniquity, the innocence of the learned reformer, if his language were to be believed, has need to be informed. In the 10th resolution he speaks of dissatisfaction—of a party’s being “dissatisfied with the judgment of any court,” meaning subordinate court:—and proceeds, as if a real dissatisfaction with the judgment of such subordinate court were the only motive, which, in his experience, any man ever found, for making application to a super-ordinate court.
Supposing Scotland to be this sort of Utopia—from the power which he gives to either party, for referring the matter with or without reason to a jury, no very considerable mass of mischief might arise. But in England, as your Lordship may have seen, and will see a little more distinctly a little further on, we have a chamber, in which the vermin that spin out such causes are bred in swarms, as lice and fleas are said to have been bred in Turkish hospitals, and nurseries, founded and stocked for the purpose: and one of his improvements, as your Lordship will see presently, consists in the building of just such another receptacle at Edinburgh, spick and span new.
Admitting, then, the existence of the breed of malâ fide suitors, without which his nursery for them would be without inhabitants—your malâ fide defendant, for example, with another man’s estate or money in his hands—admitting the existence of this best sort of customer, observe, my Lord (but I think your Lordship will not be pleased to observe,) in how many shapes nourishment is provided for him, by these four resolutions about juries.
He forms his calculation; and, if mesne profits, or interest of money, promise to outweigh the eventual addition of expense—or without any such trouble of calculation, if his affairs be desperate—after all anterior sources of delay are exhausted, taking care to wait till the last moment, he flies to resolution the 6th, as to the horns of the altar, and calls for his share in this new-imported stock of English liberty.
If, as per resolution 7th, “that part of the country where the evidence can be most easily obtained” happens fortunately to lie within the range of a circuit, and the commencement of that race against time happens to be, or can be made to be, at a convenient degree of remoteness, the further off the point of time, so much the better for mala fides.
Moreover, the principle of circumgyrating justice, consisting in the allotment of a limited quantity of time for an unlimited quantity of business, another chance he thus gets into the bargain is—that of finding, that when the cause has got to the circuit town, there is no time for trying it as it should be; whereby he gets the benefit of cross and pile:—or there is no time for trying it at all; whereby he gets either the benefit of a further respite to the next circuit, or that of finding his adversary content to give up half his right, rather than see the other half exposed to further perils.
Is it a cause that has taken its commencement in Shetland or the Orkneys?—a cause about a hovel, for example, or a few yards square of potatoe-ground adjoining to it, or the boundary between one such scrap of ground and another?—he lays hold on resolution the 8th, and up goes the cause to Edinburgh, and there breeds another cause, the object of which is to know, whether the Court of Session there shall or shall not think fit, that when the cause is got back again so far in its way to Norway, it shall receive the benefit of its share in the new imported stock of English liberty.
And note, that the power, of thus giving exercise to the faculty of locomotion, may be no less useful in the hands of a malâ fide suitor on the plaintiff’s, than on the defendant’s side.
As for example—in a situation like Lord Selkirk’s, should it happen to a man to be actuated by a disposition, such as nobody can be further than I am from meaning to attribute to that noble lord, it might not be unworthy of your Lordship’s consideration, how much might be done in such hands towards ridding the country of its superfluous population, by actions judiciously introduced into the local subordinate court, and thereupon set to vibrate, as above, in an arc of 200 or 300 miles length, between the subordinate court and the super-ordinate.
Over and over again I have had, or shall have, occasion to confess, that were there any such instrument as a speculum mentis that would suit the purpose, astutia, rather than innocence, is the state in which I should expect to find the learned reformer’s mind: should this conception, on the other hand, be erroneous, it may be of real use to him—in his office or in his profession—to be informed, what wicked people there are, in this wicked world.
The mention made in resolution the 6th and resolution the 9th, of the Lord Ordinary’s court (in the Outer-house) and the court or chamber (meaning, I presume, the correspondent Inner-house,) reminds me on this occasion, as on so many others (of which hereafter) of the enigmatical and mysterious state of that court, which is at the same time two and one. Our malâ fide suitor, when, with the help of one jury or succession of juries, he has exhausted the stock of delay purchasable at the Outer-house, is it proposed that, with the help of another jury or like succession of juries, he shall be admitted to the purchase of a fresh stock in the Inner-house? and this in the two cases—of the causes breaking out of his lordship’s hands and getting into the Inner-house (viz. by reclaiming petition,) whether he will or no, and that of its being gently wafted thither by his diffidence; viz. in that easy sort of vehicle, called a great avisandum, in the construction of which his lordship shows a degree of expertness so far above the comprehension of any English judge? These are questions, to which, from the first, an answer may have been provided, though, upon the face of the resolutions, no trace of any such thing should be to be found.
As to resolution the 9th,—relative to causes brought on in an inferior court, including the country courts at all distances,—whether it be considered in itself, or confronted with resolutions the 6th and 7th, relative to causes brought before the Court of Session in the first instance, it calls, in my view, for questions and observations more than one.
When, under resolution the 8th, proofs having been allowed in a court in the Orkneys, application is made from the Orkneys to Edinburgh, for trial by jury, where is it supposed that the trial will take place?—in the Orkneys, from whence the cause came, and where most probably the residences of witnesses and parties are—or at Edinburgh?
In the case where the cause is brought before the Court of Session at Edinburgh in the first instance—in that case, by resolution the 7th, the idea occurs (I perceive) to the learned reformer, that there may be one part of the country in which “evidence may be more easily obtained” than in another; and power is accordingly given to the Court of Session, to place the scene of action in that venue. But, to the case where the cause is in the first instance brought before the country court in the Orkneys, this power is not extended. Had resolutions the 7th and 8th changed places, this doubt would have been removed: but, whatsoever may have been the cause, the monopoly of this benefit seems to have been intended for the suits commenced at Edinburgh: suitors, perverse enough to wish to have justice administered to them near to their own homes, not being thought worthy of it.
True it is, that, for aught I know, the intention may have been, that when a cause, which from the Orkneys has ascended to Edinburgh, has re-descended to the Orkneys, receives the benefit of jury-trial, it shall not be at any circuit court, but at the stationary court from which it came: I mention this, therefore, not as matter of opinion on my part, but as matter of doubt.
Be this as it may, if I comprehend the matter right, my Lord, suitors who wish to receive justice, without being sent 200 or 300 miles for it, are a bad set of people: their wish is to cheat superior merit, the exclusive growth of the metropolis, out of the reward so richly due to it:—the practice of bringing causes before these paltry little courts is accordingly a bad practice, and ought to be discouraged. Else why is it that, when a cause is brought in the first instance before one of those petty courts, neither party can have the benefit of jury-trial, without trying the cause first at Edinburgh, to know whether it shall be tried afterwards in the jury mode, in the Edinburgh court, there or elsewhere?—to be tried, viz. in the court it came from, or in the circuit court, or in God knows—and perhaps the learned reformer knows—what other court? while, if the plaintiff has but the sense to commence the cause in the proper place, in the only place in Scotland where any sort of cause ought to be commenced, to wit, at Edinburgh, where persons of superior learning and merit may extract their due out of it, he, as well as the defendant, may put themselves in possession of this new and matchless benefit, each of them at his own will and pleasure, without being beholden for it to the Court of Session, or anybody else, and without being obliged to join in the trial of a preliminary and additional cause, as above.
In England, centuries ago, these little country reptiles were either swallowed up, or sucked dry—nothing left but a husk—by the great serpents in Westminster-Hall:—the wisdom which gave success to the design was, if I mistake it not, a prototype, and perhaps a model, to this the learned reformer’s grand scheme of reformation.
All this while, lest injustice be done to jury-trial, and a matchless remedy put upon the list of pure poisons, let it not, my Lord, be forgotten, that in jury-trial all this crabbedness is not innate, but comes of its being grafted upon a cankered stock, instead of a sound one: upon the technical—and, in particular, upon the Scotch branch of the technical—instead of the natural system of procedure.
And moreover, in respect to removal in general—removal for whatever purpose, and under whatever pretence—if it be so well adapted as at present it appears to be, to the convenience of the malâ fide suitor, it would not be so in the smallest degree, under that modification of the natural system, which I propose to submit to your Lordship, in the Facienda. If it is so now, it is only because (as I proceed to state in my next letter) learned lords and gentlemen find it convenient to have it so: finding, in the malâ fide suitor, for whatsoever stock of delay, vexation, and expense they can contrive to manufacture—in the malâ fide suitor (the latent though not dormant partner in their firm,) besides a partner, their best sort of instrument, and in the mode and conditions of removal, one of their best channels of conveyance.
On this occasion I know not whether there be any adequate use in hinting, that, of the two modifications, of which misdecision on the part of a jury is alike susceptible—viz. misdecision which calls for reversal, and misdecision which, respecting quantity only, calls only for modification—viz. angmentation or diminution—(say, misdecision pro toto, and misdecision pro tanto)—the eye of the learned reformer seems to have pitched but upon one. A verdict requiring correction—for example, on the score of excessive damages—and given without any direction from the judge, or against his direction—was it considered, and meant to be included under the description of a verdict given contrary “to evidence?”
But the occurrences—specified as above, in the character of fit grounds for new trial—are they all that required to be thus specified?
1. Vicious composition of the jury,—by the admission of a juror who had gained admission by fraud after his disqualification had been pronounced—
2. Mistake or misconduct on the part of the jury,—in giving a verdict contrary to evidence, or contrary to the direction of the judge respecting matter of law—or in giving a general verdict, the judge requiring a special verdict, or a verdict subject to the opinion of the court—or in deciding by lot—
3. Notorious partiality of a juror,—evidenced, for example, by previous declarations on his part, of a determination to cause the verdict to be given in favour of one of the parties—
4. Mistake or misconduct on the part of the judge,—in excluding evidence that ought to have been admitted—or in admitting evidence that ought to have been excluded—or in giving an erroneous direction respecting the matter of law—
5. On the part of the evidence, a deficiency on one side—whether produced by fraud on the opposite side—by pure accident—by misconception or neglect on the first side; viz. on the part of the professional agents of the party on that same side—
6. Absence of any other of the dramatis personæ whose presence was regarded as necessary—as, for example, of an advocate on one side—the absence produced by fraud on the opposite side—
All these have, in English practice, been sustained as grounds for the allowance of a new trial.
These, in the course of about a century and a half (the time during which the practice of granting new trials has been in use,) have been brought to light, by the fortuitous concourse of the parent atoms of litigation: more, for aught I know, there may be, though I should not expect to find many, presenting an equally good title, but as yet lying unextruded in the womb of time. Were it to present any prospect of being of use, I know of one hand at least, by which, weak as it is, the labour of exploration would not be grudged. On this as on so many other occasions, analogy, if properly commissioned, would, in the course of a few days or hours, produce in useful abundance cases calling for regulation, and regulations adapted to those cases.
But it is among the maxims of learned policy, that all such anticipations are an injury to the profession, and as such ought to be discountenanced:—that the only fit shape for law to appear in, is that of ex post facto law:—that providence is rashness:—that punishment, especially when without delinquency, is better than prevention:—that legislation is usurpation upon jurisprudence:—and that to shut the stable door, before one steed at least has been stolen, is defrauding thieves and lawyers of their due.
From this cause it is, among others, that cases—which to so vast an extent might, by the light of analogy, be at once brought out and provided for—and, by the hand of the legislator, in the best mode—are left to be dragged out, one by one, time after time, each time at the expense of many a pang by the afflicted suitor, and provided for, in the courseof ages, by the hand of the judge—proceeding in his ever imperfect and insufficient mode.
But to return to the grounds for new trial. Of the above, upon which English practice has already put its seal, few, if any, would, I am inclined to think, be regarded by a Scotch lawyer as insufficient.
Yet, out of the whole number, two and no more—contrariety to evidence, and misdecision of the judge—are specified by your Lordship’s learned adviser in the resolutions.—I have the honour to be, with all respect, my Lord, your Lordship’s most obedient servant,
[* ]Jury-trial in civil causes was extended to Scotland in a limited form by 55 Geo. III. c. 42. (2d May 1815,) appointing a Chief Commissioner and two Commissioners of the Jury-Court. The operation of the system was extended by 59 Geo. III. c. 35 (19th May 1819,) and afterwards by 6 Geo. IV. c. 120 (5th July 1825,) which appointed two additional Commissioners. Provision was made by 1 W. IV. c. 69 (23d July 1839) for abolishing the jury-court as a separate tribunal, and for uniting its authority to the ordinary jurisdiction of the Court of Session.—Ed.