Front Page Titles (by Subject) SUMMARY VIEW OF THE PLAN OF A JUDICATORY, UNDER THE NAME OF THE COURT OF LORDS' DELEGATES, Proposed for the Exercise of those Judicial Functions, the adequate Discharge of which by the whole House has, for these six or seven Years, been rendered confe - The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)
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SUMMARY VIEW OF THE PLAN OF A JUDICATORY, UNDER THE NAME OF THE COURT OF LORDS’ DELEGATES, Proposed for the Exercise of those Judicial Functions, the adequate Discharge of which by the whole House has, for these six or seven Years, been rendered confe - 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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SUMMARY VIEW OF THE PLAN OF A JUDICATORY, UNDER THE NAME OF THE COURT OF LORDS’ DELEGATES,
NUMBER AND CHOICE.
The Judges, Members of the House (so far as obtainable:—viz. so far as in that high station it shall happen to a set of fit persons, finding adequate inducements for the acceptance of so laborious a duty) to obtain the preference:—[See § 2, article 2]—and with salaries;—in consideration of their taking upon them the requisite official obligations.
2. Puisnes, three:—to be elected, one for each of the three kingdoms, by the Lords sitting for that kingdom, and to be denominated respectively the English, the Scotch, and the Irish delegate:—in the hope that in each the choice may fall upon some person who, being in a special degree conversant with its peculiar laws and local circumstances, may be considered as in a more particular manner charged with its legal concerns. In the two minor kingdoms, all danger from local partialities will be excluded by the number of the votes (three to one) not exposed to any such sinister influence.
3. The President to be elected by the whole house, and to be denominated the Union delegate:—that the English ascendency, on its present footing, may be preserved; and thereby this committee rendered the more correct a representative of the whole house. The presumption is, that the president, and perhaps the three puisnes, or some of them,—at least, by reason of the peculiarity of Scotch law, the one for Scotland,—will, at the outset, be a professionally-bred lawyer, taken from the bar, or from the bench. But the need of such assistance will be less and less thenceforward—[See § 2, article 2, 3:]—and all this will, of course, depend, at all times, upon the pleasure of the House.
4. Election annual:—viz. at the commencement of each session.—If, as in the case of the king’s delegates, viz. in ecclesiastical and admiralty causes, there were a fresh election for each cause, the office would not be worth acceptance: or, if it were, a perpetual ferment would thus be kept up: at any rate, the benefit of appropriate experience would be apt to be lost. If the office were for life, as in three of the four Westminster-Hall courts, the mind of the delegated body would not be (as, in this case, not to change the constitution, it ought to be) the nearest resemblance capable of being taken of the mind of the delegating body: the supreme judicature would be no longer substantially in the House of Lords. The renewal of the election every year, will provide, in case of necessity, the gentlest and most decorous mode of ridding the judicatory of any member whose performance may have fallen short of expectation: while the apprehension of it will be a security for propriety of conduct, and a preservation against negligence. Nor yet would this possibility of amotion destroy the value of the office: it would be considered as differing substantially but little from an office for life: as in the case of the chairmanship of the Middlesex sessions, and in that of the chamberlainship of the city of London. The former case may be referred to, as one in which the utility of periodical election, as above, has in every point of view received a satisfactory exemplification.
5. Mode of election secret, viz. by ballot:—that the electors, being free as possible, as against all influence of will over will (no influence prevailing but the unpreventible and oftentimes salutary influence of understanding over understanding,) the mind of the delegated body may, as above, be the faithful copy of the mind of the constituent body, taken in its permanent and habitual state:—and that no elector may stand exposed, or conceive himself exposed, to the danger of finding himself, by an adverse vote, rendered an object of personal displeasure to a person to whom it may happen to become his judge.
6. Notwithstanding the appropriation of the title of president to a single person, the functions to be exercised by all the judges in turns: each taking his month, or his number of causes, or the causes of his own kingdom: or the above different modes of alternation being combined:—that inept candidates may keep aloof;—that the sense of responsibility may be kept alive in all;—that the faculties of all may be sharpened and invigorated by exercise;—that no one of all four offices may ever degenerate into, much less be at the time of the appointment designed to be made, a sinecure;—and that each pursue judge may be the better qualified for eventually succeeding to the office of president, thereby adding to all other elements of aptitude that of appropriate experience.
By the obligation of presiding, i. e. taking the lead in causes, and being the mouth-piece of the court—viz. not only in the delivery of the decision, but, in the conduct of the whole business, doing all that which, in judicial business, is done by the chancellor in the House of Lords,—an effectual exclusion will be put upon all persons manifestly unfit for the conduct of judicial business in general:—by the more particular obligation of presiding in causes coming from the kingdom for which each delegate is respectively elected, an exclusion will naturally be put upon a person not particularly competent to the conduct of the business from that kingdom; a person conversant solely in Scotch law will not find it so easy to be chosen to fill an English or Irish delegateship; a person solely conversant in English or Irish law will not find it so easy to be chosen to fill the Scottish delegateship.
MEMBERS, LORDS VISITANTS.
1. Every Member of the House to bring with him into the court of Lords Delegates every other right; but not that of voting.—Not that right;—because to that are attached whatever imperfections the Lords’ judicatory has been charged with by Lord Hale: viz. fluctuation of numbers, whence general deficiency of numbers (especially of minds actually applied to the business) alternating with occasional excess:—occasional partialities or suspicions of partiality, by reason of latent interests;—occasional deficiency in point of intellectual aptitude, or appropriate learning, in the instance of the presiding member, or of a more or less considerable proportion of the other voters;—want of a sufficiently strong sense of responsibility, that guard to probity, that security for adequate intelligence: a deficiency which so naturally results from the power of contributing, by a bare expression of will, to the formation of a decree, without the obligation of giving reasons.
So long as it is without the right of voting, although a Lord were to carry with him to the judicatory all the partialities of a party, he would only add one unpaid, to the two professional, advocates. For ages together, according to Lord Hale, a multitude of assessors, with right of “advice” only, formed a part of the judicatory of the Lords’ House.
2. In the court of Lords’ Delegates, Scotch peers, though not having seats in the House, to be admitted to the privileges of Lords Visitants: in like manner Irish Peers and Bishops.—The design and expectation is that, with the aid of so numerous a reinforcement, there might be found, for subsequent vacancies, a sufficient number of persons already invested with the peerage, willing to charge themselves with the duties, as well as able duly to discharge the functions, of the office. Judicature, it is conceived, and especially in the particular tribunal here in question, would be a still more appropriate preparative than advocateship, for judicature. In the character of Lords Visitants, with every right but that of voting, the members at large of the House of Lords, together with the Scotch and Irish non-sitting Lords, would be what, according to Lord Hale, the Consilium Magnum was formerly in the House of Lords—judges, as to every right but that of voting. The bench of the court being open to them as Lords Visitants, a sufficient number for each kingdom might find adequate inducements for frequent attendance, in the mixed and decorously ambiguous characters of inspectors and censors, students, and future candidates:—nay, even, on occasion, if such be their pleasure, latent advocates for particular interests:—forasmuch as they will not have it in their power to gain support to those interests otherwise than by reason, from which no prejudice can ensue to justice. Among the Scotch and Irish non-sitting lords, such as may have it in contemplation to become candidates for seats in the House on future vacancies, will possess on this bench a theatre, on which their qualifications will find much better opportunities of displaying themselves, than any that are at present open to them, or that could be opened to them by any other means. For the chancellorship (not to insist on the chief-justiceships) this bench, either on the judges’ side, or on the Lords Visitants’ side, might, after due probation time, afford at least as suitable a nursery as the bar of a common-law court. The instances of Sir Christopher Hatton, Lord Shaftesbury, and even Lord Clarendon, together with Cromwell’s English judges in Scotland, may be worth adverting to in this view. Against inaptitude for want of appropriate learning, a free and periodically-repeated election, an election by that House, in which, at the same time, the crown can never fail of possessing its due influence, will surely be at least as good a security as can be afforded by the single probity and discernment of any minister.
3. Power to each judge of the court to appoint for his occasional substitute a Lord Visitant; (such substitute, however, not to preside [as per § 1, article 6] without the consent of all the rest:)—that, in case of indisposition, the number of judges may never be incomplete;—and that from this faculty, Lords, looking forward to the judgeship, may derive an additional opportunity of manifesting, as well as acquiring, superior aptitude. The care of his own reputation will (it is conceived) prevent the judge from choosing for a substitute any Lord other than one whose fitness for the station might, upon a vacancy, be sufficient to point him out to notice.
In the judicial establishment of Scotland, this power of substitution is exemplified to a very considerable extent: and though under so much less efficient security against abuse than here, with (it is supposed) sufficiently established and generally recognised advantage.
DECISION OF THE COURT—ITS EFFECT.
1. In respect of irreversibility and immutability, except in the possible, but highly improbable, case of misbehaviour on the part of a majority of the four judges, of such sort as to call forth censure, the judgment of the Court of Lords’ Delegates to stand on the same footing with that of the House:—otherwise it would be no better than an interpolated and additional stage of judicature, affording to the time of the House but an inadequate relief, and to suitors a grievous additional burthen, instead of relief.
2. The Court divided, and the numbers equal, power to the court to call in a Lord Visitant for the occasion: if no one can be thus agreed on, each judge to propose one, and the House to choose (viz. as before by ballot,) but without being restricted as to the person so proposed.
PLACE OF SITTING—HABILIMENTS—TITLE.
1. Place of sitting, as near to the House as may be:—at any rate, under the same roof:—that, in the public mind, the idea of the body delegated may be as closely as possible connected, not to say identified, with that of the body delegating: and that, in parliament time, whatsoever occasion brings members to the House, may have its chance of bringing Lords Visitants to the Judicatory.
2. Habiliments, such as may serve to combine in the public mind the idea of the judicial function with that of the superior political station and dignity:—Baron’s robes, for example:—higher ones, of course, if the judge possesses a higher rank in the peerage. The judges of the court of Exchequer having originally been Barons (probably of parliament,) bear, though not the robes, the title of Barons.
3. In an ante-room leading to the bench, a Lord Visitant to invest himself with some easily assumed and redeposited ensign of office (such as a short mantle,) to attest to the public eye his right to the privileges which he may be about to exercise:—The distinction being thus sufficiently expressed without the aid of place, seats left unoccupied by Lords Visitants may, by sufferance, as at one time in the King’s Bench, be occupied by private individuals.
4. Each judge, if not a peer, to bear before his name the title of Lord, during his delegateship.
DURATION OF THE ESTABLISHMENT.
1. Duration of the establishment, temporary, of course:—as in the case of the Grenville act, and the Middlesex police act. In the first place, a length of time sufficient, upon calculation, by means of uninterrupted sittings, for the discharge of the existing arrear:—to that another fixed length added, sufficient for a further trial of the institution, as applied to the current influx.
2. At the end of the last fixed length of time, the salaries to cease, unless the establishment be continued on by parliament: but with power to the House to continue the authority beyond the day:—lest causes that have been begun before this judicature, should remain undecided by it. The salaries, unless a day were fixed for their cessation, would, in their tendency, operate as bounties upon delay.
1. Oath of office, if any, not so general as to be nugatory.—The use of official oaths is, in case of misconduct, to expose to loss of reputation him, who, by deficiency of legal evidence, or by difficulties standing in the way of prosecution, is exempt from legal censure: to which purpose, the collection made of the modifications of misconduct should be as ample, and the description given of them as particular and pointed, as possible. The bad effect is, by sham security to engage unwarranted confidence: in demonstration, a bridle; in effect, a cloak.
2. A Lord Delegate, if a member of the House, not to speak or vote in the House, or give proxies, during his delegateship:—lest, of the time purchased for judicature, any part be diverted to politics;—lest the politician corrupt, or be suspected of corrupting, the judge;—and lest the fear of their leaving their seats in the court vacant, while engaged in the house, should exclude members from being the objects of choice.
The option is (be it observed) not between this plan and doing nothing (for either the House will abdicate its appellate judicature, having first converted it into a manufactory of vendible delay, or something will be done,)* but between this plan and some other. Of this plan, the first object was, that as little change should be made as possible: the next, that whatsoever change were made, should be for the better. The admission of the non-sitting Scotch and Irish Lords to the privileges of Lords Visitants, episodical as it may appear in form, is in substance not a change, but a preservative against change. The main object was to give the best chance possible for continuing the function in the aristocratical hands in which it has all along (and, though not altogether without inconvenience, yet without any inconvenience on the score of aristocracy) been lodged: continuing it, viz. so far as could be done without establishing that indefeasible monopoly, which, in the eyes of the public, might be apt to appear preclusive of scientific aptitude. The advantages given by the plan to these unchosen peers, are therefore given to them, not as against their more fortunate fellows in the peerage, but as against commoners. Necessity,—and that, at the outset more especially, a very hard and galling necessity,—excluded them, on the occasion of the respective unions, from by far the most valuable portion of their hereditary privileges: to the proposed share in the supreme judicial function, this necessity has, under the proposed plan, no application: admitting them to it was therefore rather continuing what might be continued to them of their ancient privileges, than investing them with new ones.
As to the ulterior and unlimited door left open for the admission of commoners, viz. of such persons in whose instance presumptive evidence of pre-eminent aptitude for this supreme judicial station may have been afforded by ability displayed in a subordinate rank of judicature, or in a course of professional practice;—were the right of election in any other hands than those of the Lords themselves, such an admission would indeed be a most serious invasion of their privileges: but, that right being in their hands, and theirs alone, the consequence is, that, by the enlargement of the field of choice, the power of the House, so far from being trenched upon, would be enlarged.
To render the mind of the body deputed, a faithful representative of the mind of the body deputing, it is not necessary that the members of the one should be members of the other. Doing the will of the King, the king’s delegates are not kings:—to do the will of the Lords, it is as little necessary, howsoever on other accounts desirable, that the lords’ delegates should be lords.
Want of physical power adequate to the dispatch of a mass of business within the space of time, within which, to be done effectually, it was necessary it should be done—want of time, in a word, was the infirmity (for such it is) by which kings were gradually compelled to commit the judicial part of their authority to other hands. Unless lords in England are exempt from those infirmities which are the inevitable lot of human nature, and under which there, as well as elsewhere, kings have bowed, it need not be matter of much regret to them to submit, thus late, to a necessity, which, for so many ages past, has been submitted to by kings. The innovation, let it be considered, if such it must be called, is not of the number of those which are so apt to be called for by rival ambition, but of those which are forced on by the irresistible hand of the universal and indefatigable innovator, time.
Various arrangements, which, in the planning of the proposed judicatory, presented themselves to the proposer, as highly conducive, not to say necessary, to the object of it, are for the present omitted, as not being applicable to this alone, to the exclusion of other judicatories.
By the consideration bestowed for the purpose of the present proposal, on the judicial function of the House of Lords, reference being all along made to the several ends of justice (of which an exact list has been endeavoured to be made out,) the inquiry was suggested, whether, in the exercise habitually given to that function, it has been really co-extensive with what it seems to have been generally regarded as tantamount to, viz. the function of general superintendence: meaning thereby, the habit of applying to such of the several evils correspondent and opposite to the several ends of justice, all such remedies as, in the nature of the case, are capable of being applied to them without the exercise of legislative power. Compared with this standard, the authority of the House, as at present exercised, was found to be deficient, and to a greater extent than could readily have been imagined.
The physical power of the House, as dependent on the quantity of applicable time, having already sunk under the load of business imposed on it by that part of the function of general superintendence, which has been habitually exercised by it till of late years, is of course still more decidedly unequal to any ulterior burthen.
But of this demand, a part of which has thus been found to overdraw the quantity of time capable of being appropriated to the discharge of it by the House itself, the whole might find an adequate supply in the more ample quantity capable of being allotted to it by the proposed Court of Lords Delegates:—a tribunal clear of all other business, and sitting on such terms, as would render the whole of its official time applicable to the one purpose.
The mass of remuneration which on other accounts would, it is supposed, be deemed necessary to be allotted to the members of a tribunal, so armed with power, and so exalted in dignity, would be sufficient to entitle the public to call upon them in return, for a degree of assiduity, not inferior to that which is seen to be habitual on the part of other judges. And the greater in extent and value the service thus rendered, the more secure would be the requisite disposition on the part of the public at large, as well as of the co-ordinate authorities, to submit, without regret, to the burthen that would be to be imposed by the requisite expense.
A view of the particulars, in respect of which the judicial function, as exercised by the House of Lords, fails of being coextensive with the function of general superintendence, in the extent above indicated as belonging to it, has been already taken. But, under the apprehension of awakening those jealousies which are so easily awakened, or of overloading that patience which is so easily overloaded, this part of the plan is, for the present at least, put aside.
What on this occasion ought never to be out of mind, is, that as to whatever regards the superintending authority of the House of Lords in matters of judicature, the existing practice, whatsoever may be its effects, was in its origin the mere fortuitous result of a contest for power, between two co-ordinate authorities—the result of anything rather than a calm, and comprehensive, and constitutionally-concerted plan, directed to the ends of justice. This want of design, and consequently of congruity, is no more than might have been anticipated, by a reflection on the natural course of human affairs: and it may be seen most satisfactorily demonstrated, as well as clearly displayed, in the instructive and interesting preface, prefixed by Mr. Hargrave to his edition of the work of Lord Hale on the jurisdiction of the House of Lords.
Other expedients have fallen under the notice of the proposer, as having been in contemplation:—an ordinary committee, to begin to sit, or to continue to sit, during the recess:—an appellate judicatory, to sit in London, but to confine itself to Scotch causes, &c. &c. But, regarding them as having already been found to stand excluded by one or other of two bars, viz. impractivability or inexpediency, he gladly discards the consideration of them out of a paper, in which the space necessary for any such discussions could not have been found.
He had even set his mind upon an inquiry into the fund of possible expedients, capable of being directed to the same end: on which occasion, distribution, governed by principles adapted to the nature of the case, or even by lot (a mode of selection less objectionable in reality than appearance, and even preferable to the modes of blind exclusion hitherto pursued,) did not pass unnoticed. But, nothing having thus presented itself to his conception, as promising to be suitable to the end in view, in a degree approaching to that of the plan here submitted, he suppresses without reluctance everything that had come into notice under that head.
As to the present plan, even to those exclusively competent judges, whose approbation it may not be fortunate enough to be honoured with, it may, it is humbly hoped, be not altogether without its use. Good or bad, an anterior plan, by breaking as it were the ice of the subject, is, to the framer of any succeeding plan, commonly found more or less of use, as an object of comparison and reference: and, as to the observations submitted in support of it, where, in the character of reasons, they fail of producing the effect endeavoured at, in the character of sources of error to be guarded against, they may still be not altogether without their use.
If in this, or any other way, the present plan should contribute to the production of any other, which, issuing from some more competent source, should, at the same time, be less open to the charge of unconstitutional innovation, and more highly conducive to the ends of justice, the labour here expended will have received, in the establishment of such better plan, its sufficient reward.
Issuing from high station, the stronger the recommendation a plan of any kind derives from the height of the station, the less it is commonly found to stand in need of any other. In one respect, therefore, the present plan possesses an indisputable advantage over any other that is at all likely to come in competition with it. Presented under a name altogether unknown, and without any authority or consideration in the state, if it were to find acceptance, it could do so on no other ground than that of its supposed conduciveness to the object in view.
To the work at large, if published, is intended to be added an examination that has been made of the plan proposed by Lord Hale, for an ultimately-appellate judicatory, to be substituted to that of the House of Lords:—substituted wantonly (one might almost say,) and when no such necessity had as yet presented itself, as that which at present presses upon the House. In the way of illustration, and as serving, by enlarging the view given of the field of argument, to afford the more ample satisfaction to a contemplative and cautious mind, the discussion, it is supposed, may be found not altogether unacceptable. As presenting any the least chance of being preferred in practice, either to the plan here submitted, or to any other, the plan of Lord Hale, notwithstanding the high reputation of its author, will scarcely be found worth notice: for, in the character of an innovation on the constitution, it was no less violent, than, with reference to the ends of justice, it may be seen to be unsubservient and unfavourable.
Queen-Square Place, Westminster,
[* ]By the accounts printed by order of the House of Lords—date of the order 11th of March 1807—it appears, that in the space of thirteen years, and part of a fourteenth, ending on that day, of 501 appeals that had been presented, only 356 had been disposed of, viz. by being heard, withdrawn, or for want of prosecution dismissed: of which only 195 had been heard:—that consequently the arrear that, having in that time accumulated, remained undisposed of, amounted already to 145:—that the number of days employed in the hearing of those 195 that had been heard, had, in the whole number of fourteen years, amounted to 541: making upon an average per year, appeals heard, about fourteen: so that, to hear, at the same rate of dispatch, the accumulated arrear alone, exclusive of the growing influx, would require ten years, and half of another: and that, though, by the number which, when the time came for hearing, would be either withdrawn, or for want of prosecution dismissed, a corresponding deduction would be made from the amount of those so requiring to be heard, yet that that deduction would be nearly balanced by the increased length of the time employed during the last seven or eight years in the hearing of each cause:—and that, even if it had nothing to balance it, it would not reduce to less than seven the number of years requisite:—and that, after all, the real arrear must have been considerably greater than this amount:—for in these accounts are not included such of the English appeals which are called writs of error, the number of which, in the three years ending in 1797, was (as per 27th report of House of Commons Finance Committee, anno 1798, p.272) half as great again as that of all the appeals called appeals, put together. In these three years, the number of writs of error presented was 125: that of appeals, Scotch and English together, 82;—that, in respect of the ends of justice, one consequence of this retardation was, that such causes as about that time had been heard, must already have been waiting for a hearing, and the party in the right labouring under a denial of justice, about three or four years:—another, that at the price of costs, composed, as to the greater part, of fees to the officers of the house, in all such cases in which the effect given to appeal is that of stopping execution, viz. in the case of the Scotch appeal, and in that of the English appeal called a writ of error, every malâ fide defendant, against whom, as being in possession of property belonging to another, judgment had been pronounced in a court below, then had, and still has it in his power, to derive, during that length of time, under the protection of the house, a profit from his own wrong to the amount of common interest (5 per cent.) or commercial profit (12, 15, or 20 per cent.) according as he happens to be circumstanced:—which length of time is in a course of unlimited increase.