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ABRIDGED PETITION FOR JUSTICE. - 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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ABRIDGED PETITION FOR JUSTICE.
To the Honourable the House of Commons in Parliament assembled.
1.Justice! justice! accessible justice! justice, not for the few alone, but for all! No longer nominal, but at length real, justice!—In these few words stand expressed the sum and substance of the humble Petition, which we, the undersigned, in behalf of ourselves and all other his Majesty’s long-suffering subjects, now at length have become emboldened to address to the Honourable House. The case we accordingly take the liberty to state, followed by a prayer, humbly suggesting a plan for the removal of the grievance, is this:—
2. That, of the expense, without which, application to judges, for the service which, as such they are appointed to render, cannot be made, nor if made continued, the effect is such—that, in cases called civil altogether, and in cases called penal to a vast extent, justice is not only sold at a dear price to all the few who have wherewithal to purchase it, but utterly denied to all who cannot; and that those who are thus oppressed are thus subjected to wrong, in all shapes, without redress.
3. That the delay is such, that, in many cases, in which, under a proper system, a few minutes would suffice,—and even under the system established does in cases to a narrow extent actually suffice—more than as many years elapse before a man can obtain possession of what, at the end of that interval, are universally seen to have been, and to continue to be, his manifest and indubitable rights.
4. That, while thus unapt for redress of wrong, it is exquisitely well adapted for the commission of wrong: for, such is the mode in which commencement is given to suits, that is to say, without security given for compensation for wrong if done by means of the suit, that, without so much as imagining himself to have any just ground of demand whatsoever—any man, who is able and willing to pay a certain price, may, as we shall show, stand assured of effecting the utter ruin of any one of nine-tenths or ninety-nine hundredths of the whole body of the people.
5. That this state of things has for its cause the undeniable fact,—that, from first to last, the interests of all persons concerned in the administration of justice have been in a state of opposition, as direct as possible, to their acknowledged duty, and the interests of the community.
6. That this oppositeness had for its original cause the penury under which government at that time laboured; it not having, in its then existing state, wherewithal to pay salaries; and being thereby laid under the necessity of allowing the functionaries of justice to exact, for their own use, payment in the shape of fees: payable for processes carried on in the course of the suit: for processes carried on,—that is to say, either for instruments (written instruments) communicated, or thereby or otherwise, operations performed.
7. That, under and by the influence of the sinister interest thus created—has been generated the existing system of judicial procedure: a procedure, having for its ends—instead of the ends of justice—the swelling, to its utmost endurable amount, the evil composed of the expense, delay, and vexation, for the sake of the profit extractible out of the expense, to the use of the several partners in the said sinister interest: to whom, taken in the aggregate, may accordingly, without injurious misrepresentation, and with instructive and beneficial application to practice, the style and title of Judge and Co. be allotted.
8. That though, by a late act, in the case of the judges of the supreme Westminster-hall courts, salaries have been substituted to fees,—yet, this substitution, not being extended to those their subordinates, of whose situations they have the patronage, the comparative sinister interest, in unabated efficiency, still continues: gift being still allowed; and gift being, in all cases, a source of proportionable benefit to the giver: in some cases of even greater pecuniary profit than sale is: as in the case of the gift made of the next presentation to an ecclesiastical benefice, by the patron to his son: and that, even were this same supposed remedy effective against further increase of the grievance—which, however, it is not in its nature to be—still the system of factitious expense, delay, and vexation, offspring of the sinister interest, would remain as it does in all its mischievousness.
9. That the boundless weight of human suffering thus imposed is not, in any part of it, as some suppose, natural and unavoidable, but in the whole artificial: as also in the whole removable; as, in and by the suggestion contained in the prayer of this our humble petition, we will humbly show.
10. That, amongst others of the devices which, in consequence, and by means, of the Norman conquest, have been contrived and employed, for the compassing of this same sinister object, the results are these which follow:—devices, some of them first employed at and during that same period, others at different successive periods, grafted on, or employed in fertilizing, the first devised radical ones.
Device the First—Exclusion of the Parties from the presence of the Judge.
This at the very outset of the cause, down to the last stage: that thereby, parties in general, and the most opulent in particular, may be, as they accordingly are, necessitated to employ in all, even the most simple cases, as substitutes, a class of men whose profit rises in proportion to expense, delay, and vexation; and who, exercising their profession under the dominion of the sinister interest, which they have in common with that of the judges, have the benefit of their support towards the reaping and increase of this same sinister profit: a master device this, serving as a necessary instrument of the employment given to most of the hereinafter ensuing devices.
12. A collateral mischief is—that, by this exclusion, the door is shut against evidence from that which is commonly the most instructive source, and thereby decision necessarily given in favour of the side in the wrong, in every case in which no other than the thus excluded evidence is obtainable. This in some cases: while, in other cases, by a glaring inconsistency, the thus excluded evidence is admitted.
13. In particular, in the judicatories called equity courts, in which the plaintiff is admitted, in and by his bill, to extract evidence, through the medium of the pen, from the bosom of the defendant: in which state of things, the defendant,—unless his professional assistants are deficient in appropriate aptitude—moral intellectual, or active,—slides in, in and by his answer, whatsoever averments present, in his and their joint opinion, a probability of operating in favour of his side.
14. Not but that, for two distinct purposes,—in so far as may be without preponderant evil in the shape of delay, vexation, and expense, is necessary to justice the thus excluded attendance:—1. For bringing to view all facts which are of a nature to operate in favour of any party on either side; 2. To serve as a check upon the sinister interest, whereby their respective professional assistants are prompted, as above, to swell to its maximum that same evil, for the sake of the profit extractible out of the expense.
15. Note also that, so far as it can be effected without preponderant evil as above, not less needful is this attendance on the part of principals, or say intended benefitees, (for example, wives, children and their offspring, wards, and members of associated companies,) for the protection of their interests, against misconduct on the part of their respective trustees: that is to say, husbands, fathers, and other progenitors, guardians, and agents of various denominations; with or without collusion with their several professional assistants in the suit.
Device the Second—Language unintelligibilized.
Instead of the mother-tongue of the parties, the language, originally employed in word-of-mouth discussion, being the language of the conquerors; that is to say, Norman French: and the language, employed in written instruments, the Latin.
17. Thence was created the necessity of employing these so little trustworthy trustees, not only as assistants and advocates, but even as interpreters between the English-speaking parties and the French-speaking judges.
18. Out of these two foreign languages, in conjunction with the mother-tongue, has been made up the jargon, by which, to so great a degree, the same continuance has been given to the same design;—the translation, at length made by order of parliament, notwithstanding: whereby, to so great an extent, false and delusive lights have been substituted to total darkness.
Device the Third—Written Pleadings worse than useless, necessitated.
By this means, justice was denied to all who could not afford the expense of hiring the manufacturers of this sort of ware—sold to all who could and would be at the expense: and, even now, such continues to be the case: and, being paid in proportion to the quantity, thus it is, that, by this sinister interest, they stand engaged to give every practicable increase to it.
20. Now then, as to the supposed necessariness and usefulness of these same instruments. Really necessary are, and in every case, on the plaintiff’s side,—statements,—1. Of the demand made by him; 2. Of the ground of it in point of law; 3. Of the ground of it in point of fact; 4. Of the evidence by which it is supported; 5. Of the persons on whom the demand is made. These are—1. In the first instance, as above—the defendant; 2. On failure of compliance on his part, by performance of service demanded at his hands—the judge; the service demanded at his hands then, the correspondent service, rendered by bringing about that which was demanded at the charge of the defendant, or what is regarded as an equivalent to it. In like manner, in case of non-compliance on the part of the defendant, correspondent statements in justification of such non-compliance.
21. Of all this matter, what is there in these same written pleadings? Answer—Really and distinctly expressed, nothing: nothing but a confused and redundant, yet imperfect hodge-podge, composed of more or less of it.
22. Moreover, for procuring custom, at the hands of individuals who know they are in the wrong,—as well as for giving increase to the quantity of jargon which parties are constrained to buy,—a distinction has been made between pleadings and evidence; and this in such sort, that while, on the one hand, of statements to which the name of evidence is given, punishment, under the name of punishment, is, in case of wilful falsehood, made the consequence,—on the other hand, to those to which the name of pleadings is given, no such consequence is attached: and thus it is, that, to all such left-purposely-unpunished falsehood, allowance, or say licence, is given: at the same time, to these same masses of falsehood, which are not so much as pretended to be entitled to the name of evidence, is given a surer effect than to any the best and most satisfactory evidence: since, when the party on either side has come out with one of these pleadings, the party on the other side, if he fails to encounter it with a correspondent mass, is visited with the loss of his cause: and thereby with a suffering, which may be any number of times as great as that produced by punishment under the name of punishment would be: and thus it is, that the licence so given to mendacity operates as encouragement to, and reward for, the commission of it.
Now then, this same failure, when it takes place—what has it for its efficient cause? His being in the wrong, and at the same time conscious of being so, answer Judge and Co.: if both these fail, his inaction is circumstantial evidence; and to this we give the effect of conclusive evidence.
23. Such is the conclusion: now as to the justness of it. Not to speak of others,—one circumstance which the failure is not less likely to have had for the efficient cause is—want of wherewithal to pay for this same thus necessitated mass of surplusage: and, the greater the quantity of it, the more probable this fulfilment of the dishonest suitor’s wishes: and thus it is, that, by continuance given to the length of the mass, any man may make sure of consigning to utter ruin any other man, whose circumstances are to a certain degree less affluent: and, under the name of justice, the faculty of oppression is sold to the best bidder.
24. Addressed to the supporters of the existing system, follow a few plain questions:—
If, in relation to any point, it were on any occasion your wish to learn the truth of a case of any sort from a child of yours, or from a servant of yours—
1. Would you refuse to see him?
2. Would you send him to, or keep him at, a distance from you?
3. Would you insist on his not answering otherwise than in writing?
4. Would you, on the occasion of such his writing, insist on his coming out with a multitude of lies, some stale and notorious, others new and out of his own head?
5. Would you so much as consent to his mixing up false information, in whatever quantity he chose—and that in an undistinguishable manner—with whatsoever true information it was that you had need of?
6. Would you establish an interval of four or five months’ forced silence, between statement and statement, question and answer, or one answer and another?
7. Would you take any such course, if you were acting as chairman of a House of Commons committee, making inquiry into the state of things in relation to any subject, for the information of the legislature?
8. Would you, if acting in the character of a justice of peace, whether singly, or as chairman, at a meeting of a number of justices of the peace, sitting in special sessions, and making inquiry into the matter of a question of any sort, civil or penal, coming within your competence?
25. Well, then: this, however, is, all of it, the exact description of what has place, as often as the process of delivering written pleadings is carried on; carried on, as it is, under the eye and by order of all the judges: and this, as well in the equity courts as in the common-law courts. This is what, in the common-law courts (to go no higher,) has place from beginning to end; has place until the suit reaches the jury-box:—not to go along with it any further.
26. Now, then, on the part of those by whom this was the course in which judicial inquiry was ordained to be carried on, can you, now that that course is thus laid open to you,—can you for a moment suppose that justice was ever the end in view? Can any man of common sense suppose it? Can any man of common honesty declare himself to suppose it? Can it really be believed by any man, that dispatch is promoted by an inexorably standing still for four or five months?
Device the Fourth—Mendacity licensed, rewarded, compelled, and by Judge himself practised.
Of the manner in which, by and for the benefit and profit of Judge and Co., falsehood has begun and continues to be licensed, rewarded, and on some occasions compelled, it has been necessary to give some intimation under the head of written pleadings; falsehood, wilful or not, as it may happen, on the part of the utterers, wilful at any rate on the part of the judges—the suborners. Follow, under the present head, instances of compulsion more manifest and avowed, as also of the practice of it by themselves.
28. First, as to compulsion. In the proceedings of the courts styled courts of equity, in contradistinction to courts of common law, it is—that features of compulsion are in a more particular degree prominent. After the process which has the effect of a summons—the instrument, with which the suit begins, is a paper called a bill, commencing with a case, or say a story, and continuing with a quantity of interrogative matter, by which answers are called for: answers, to a string of questions, grounded on the several statements, or say averments or allegations, contained in the case. To these averments is given, on this occasion, the name of charges.
29. Now then, of this same case,—what is the composition? Falsehoods, in a more or less considerable proportion, it cannot but have; and in the larger proportion it commonly has. Penalty, on non-insertion of them, refusal to impose on the defendant the obligation of giving answers to the question; in which case, they will not be of any service to the plaintiff’s purpose; they will not be contributory to his obtainment of his right: the evidence sought for by them at the hands of the defendant remains unelicited.
30. Seat and source of the falsehood, this: Into the composition of the case or story, enter commonly two distinguishable parcels of alleged facts, all supposed to be relevant to the matter in question, and necessary, or at any rate conducive to the purpose of constituting an adequate ground for the demand made at the charge of the defendant, by this same instrument of demand: object of it, a service in some shape or other, at the hands, and at the charge, of the defendant; and, eventually, in default of compliance on the part of the defendant, the correspondent service at the hands of the judge; namely, the production of such compliance, or some other service regarded as an equivalent for it.
31. Contents of one parcel of these same facts, such of them as, without any information from the defendant, are (so the plaintiff conceives) known to him (the plaintiff,) as also to some other person or persons, regarded by him as having had perception of them, and being able and about to be willing to declare them: or, at any rate, as being in some way or other in his power to make proof of: this, in whatever degree of particularity is necessary to constitute the requisite ground:—call these the already known facts. As to this parcel, all that is wanted at the hands of the defendant, is admission: seeing that by this, the need of application to any other person for the purpose of information, will of course be superseded.
32. Contents of the other parcel, such supposed facts as, in contradistinction to the foregoing, may be styled unknown or sought-for facts; sought, to wit, at the hands of the defendant: the case being, that, for making proof of them, information, such as it is in his power to afford, and perhaps in his alone, is regarded as requisite: in relation to these facts, all that, in the plaintiff’s mind, in a form more or less particular and determinate, has place, being a conjecture, or say suspicion, of their existence.
33. Now then, as to these same sought-for facts,—for what reason is it that by the plaintiff they are thus sought for? Answer—For this very reason, because they are not known to him. Yet, in relation to the facts thus unknown to him, is he obliged to make declaration that they are known to him: which declaration is constantly the offspring of the inventive genius of his professional advisers and assistants. Without such false declaration from them—writing in the plaintiff’s name,—no information at all will the learned judge suffer to be attempted to be elicited from a defendant. Purport of the rule expressive of the obligation, this:—Every interrogatory must have a charge for the support of it.
34. Plaintiff, for example, creditor of a person deceased; defendant his executor. To some amount or other, property in some shape or other, is left by the deceased: but, to what amount, and in what shape, this is what the plaintiff is altogether ignorant of; for information in relation to it—information in such shape as shall constitute an adequate ground for the demand made of the debt—this is what is thus sought for by plaintiff, at the charge and at the hands of the defendant. Well then: to a question, asking whether property of the deceased to the amount requisite is in existence, and if yes, what it consists of, and so forth, will a judge compel any answer to be made? Not he indeed: otherwise than upon condition. And this condition,—what is it? Answer—That, in the bill, a multitude of declarations, or say averments, assertions, or statements, shall be inserted—statements, giving an account more or less particular, of the several above-mentioned unknown facts: facts, by the supposition unknown to the very individual, who is thus compelled to assert that he knows them; on which occasion, the learned draughtsman finds himself under the not altogether unpleasant or unprofitable obligation, of bringing to the view of his lordship (who will never see it) a statement of every sort of thing, which it is regarded as possible should in the aggregate mass of the property in question have been contained; and, the richer the quantity of this poetry in prose, the richer the reward to the industry of the firm of Judge & Co. in all its branches.
35. Note, by-the-bye, in the case where no information is wanted at the hands of the defendant, the consequence of resorting to him, in this mode, for admission, instead of to a non-party—say an extraneous witness—for information, and thereby for proof. Consequence naturally expected (that is to say, by a man who has never looked into equity procedure) delay and expense saved: for, to the defendant, application (says he) must be made at any rate for payment of the debt. This (continues he) being necessary, when you are about it, add to the demand of the money due, a demand of the information necessary to the proof of its being due:—the information being thus obtained, and from the defendant himself, saved thereby is the delay and expense of the endeavour to obtain it from sources in number and distance altogether indefinite. Such, as to delay and expense, is the economy in appearance. How stands it in reality? Answer—In natural procedure it would have place; but in equity procedure, what the plaintiff gets by it, if the defendant (being rich enough) so pleases, is—in regard to delay, substitution of years to minutes, and in regard to expense, hundreds or thousands of pounds to shillings.
Is this handwriting yours? Yes, or no? For the answer to a question to this effect, spoken by a justice of the peace, less than even a second of time would serve; and by an answer in the affirmative would be decided many a suit which, under equity procedure, while questions and answers are written, occupies years.
36. So much for licence, remuneration, and compulsion of mendacity. Now for the practice of it: practisers, as well as compellers of mendacity—never, for a moment, let it be out of mind,—the judges themselves. Fiction is the appellative, by which the sort of falsehood, thus by judges coined in their own mint, has at all times been distinguished. Nor was the choice thus made of the appellative a blind one. Established they found it in a situation of favour in the public mind,—established by means of the application made of it to the purpose of designating poetry and romance: and thus it was, that, into a portion of the favour, associating with those always agreeable and sometimes useful productions of the imaginative faculty, they thus contrived to let in these constantly not only useless, but enormously mischievous ones. So much for the nature of this species of poetry.
37. Now for some accompaniments belonging to it. In every case, of the utterance given to these falsehoods, evil consciousness,—styled in their language mala fides,—has on their part been an accompaniment: fradulent obtainment, the object: subject-matter of the obtainment, money: to wit, either immediately, that is to say, in the shape of fees, or mediately, through the medium of power, parent of fees: persons thus wronged—in so far as the subject-matter was composed of money—the people, in the capacity of suitors: in so far as it was composed of power, the fellows and competitors of these same judges; as also, in various indirect ways, the people again: one way—the being, in the course of the scramble between judge and judge, consigned to imprisonment; and through imprisonment, frequently to utter ruin, as, under the head of groundless arrests for debt, will be found distinctly visible. So much for the morality of the practice.
38. Now as to the effects of it. Beneficial effects, none: mischievous effects, these:—
I. Mischief the first and most prominent: depredation and oppression, as above: on each individual occasion, at the charge of assignable individuals in the capacity of suitors.
39.—II. Mischief the second: arbitrary power acquired and exercised. Allow a man to assume the existence of a matter of fact,—of an event, or state of things, by which, supposing it really to have had existence, the assumption and exercise of power would have a justificative cause,—allow him this, what is the power which you do not thus allow him to assume? Of this indirect mode of assumption in preference to the direct, what is the consequence—any diminution of the evil? No: but, on the contrary, an addition to it; namely, the evils produced, as will be seen, by the nature of the instrument thus employed.
40.—III. Mischief the third: birth given to a particular instrument of arbitrary power: an instrument to which exposition and exposure have been given elsewhere, under and by the name of the double fountain. Mechanism thus alluded to, a vessel invented by jugglers; contained in it, wine of two sorts and colours; out of it, come the one or the other at the word of command. Whenever any one of these fictions has been established, thus is it with truth and falsehood. On the individual occasion in question, to this or that sinister purpose of the judge, which of the two is it that is most suitable? Is it the falsehood? Out comes, as usual, the established falsehood, and on this it is that the proceedings are grounded. Is it the truth? Back goes he to the original truth; and on this are the proceedings grounded now. Consequence to juggler’s reputation, what? At the hands of the people, anything in the way of censure? Oh no: they look on and stare. Instead of censure, comes in either case praise: on this occasion, as on every other, praise at the hands of Judge and Co. and their dupes,—praise without stint, for everything, be it what it may, which by these same hands is done. Whichever be the ground taken by the decision, praise, appropriate in shape and quantity, stands prepared for the reception of it. Is it the falsehood? Topic of eulogy, strictness of the regard manifested for established rules: for the precept expressed by the words stare decisis. Is it the truth? Topic—liberality and paramount love of truth and substantial justice: who shall blame the holy love of substantial justice? Of the double fountain, one form this: under the head of “Decision on grounds foreign to the merits,” will be visible another.
41. Thus it is, that, on each occasion, according as it happens to him to feel disposed, disposed by whatsoever motives—whether by corrupt profit to himself, by sympathy or antipathy towards individuals or parties—the judge has it in his power to determine the suit in favour of the one side or the other: and this without any the smallest danger, either of punishment at the hands of government, or so much as censure at the hands of public opinion.
42.—IV. Mischief the fourth. In the minds of well intentioned judges, generated by the incongruous mixture, confusion, thence relative intellectual inaptitude—one efficient cause of misdecision, on the part of the judge, delay in the proceedings, with expense and vexation at the charge of suitors.
43.—V. Mischief the fifth. Of that part of the rule of action, which continues in the aerial shape of common, in contradistinction to statute law,—the texture vitiated, and the all-persuading and incurable inaptitude increased; and this as well in the substantive as in the adjective branch of the law: it being through the machinery of the adjective branch, or say the system of procedure, that the cobwebs, of which the substantive branch or main body of the law, in so far as manufactured by judicial hands, is composed: and thus it is, that, in the minds of the manufacturers, the confusion and intellectual inaptitude, and in the work the consequential inaptitude, extends itself over the whole fabric: which by this means is manufactured into an opaque mass, into which the most learned among lawyers have no better than an indistinct insight, and we, the people at large, next to none: at any rate, none such as enables us, of ourselves, to guide our course by it. Witness, in particular, the law of real property.
44.—VI. Mischief the sixth. By the example set by a class of persons who, by all these devices, hereinbefore mentioned, and hereinafter mentioned, have hitherto succeeded in rendering themselves objects of almost universal respect and confidence, and by means of those sentiments, in addition to their uncontroulable power, masters of our conduct, the public mind has been, and continues to be, to a deplorable degree, impregnated with the poison of mendacity in this so highly corruptive shape: and thus it is that demoralization and disintellectualization go hand in hand.
Device the Fifth—Oaths for the Establishment of the Mendacity, necessitated.
As intimated on the occasion of the written pleadings device, mode in which the ceremony of an oath has there been employed as an instrument of mendacity, and, as will be seen, maleficence in so many other shapes, the following:—To assertions, on the occasion of which the ceremony is employed, the distinctive appellation of evidence is applied, and to wilful falsehood contained in such assertion, punishment is attached: while, to falsehood, the assertion of which is not accompanied with the performance of this same ceremony, no punishment is attached. In mendacity has been seen an instrument by which such enormous increase is given to the evil produced to suitors, thence to the good produced to Judge and Co. by written pleadings. In the ceremony of an oath may now be seen an instrument, by the use of which the production of the mendacity is effected.
46.Purposes for which this ceremony is employed, two:—1. Securing veracity at the hands of witnesses; 2. Securing fulfilment of duty at the hands of functionaries, more particularly on the part of jurymen. 1. Mischievous, in both instances, we trust it will, on examination be seen to be; thus efficient to evil purposes; 2. inefficient; and 3. needless to all good purposes, in both cases.
47.—I. First, as to its application to testimony, and on that occasion, as to its mischievousness: 1. Abundantly sufficient to warrant and necessitate abolition would surely be its above-mentioned property of producing mendacity, were it the only one.
48.—2. But to this is added another, of most appalling magnitude. Yes: the giving impunity to crime in every shape, the most obvious not excepted. In the hands of every man,—the most worthless and mischievous not excepted,—does it place the power of producing this effect: thus sharing with the sovereign the prerogative of pardon. Called into the witness-box, conscience (he declares) will not suffer him to bear a part in the ceremony. Not unfrequently have instances of such refusal made their appearance: none, in which punishment, in any shape, has been attached it: the insincerity, howsoever real, not being manifest nor proveable, punishment for the refusal would be persecution; and that persecution, happily, too odious to be endurable.
49. Without the ceremony, for this long time, in civil cases, now of late in criminal cases, admission has been given to the testimony of Quakers and Moravians. “I am a Quaker,” or “I am a Moravian,” (suppose) is in purport the averment made by the person thus called upon:—this said, who shall gainsay it?
50. Suppose even punishment applied, how would the matter be mended? Applied it could not be, till after the impunity had been effected.
51. Moreover, even were the infliction sure, it might be made worth a man’s while to undergo it.
52. So, in any case called a civil case, may he in like manner give or sell success to either side.
53. Murderous robbers might thus go on in impunity for any length of time, in the commission of the crime. In the number regarded as requisite they join in it; a reward, a high amount with pardon, as usual, being offered to any one of them for information, some of them—one or more, proffering testimony against the rest: trial coming on, they declare themselves atheists; whereupon they refuse to bear a part in the ceremony: true it is, that in this case conviction not taking place, pardon is not earned; nor need it, for no testimony being delivered, acquittal follows of course: acquittal on the part of the prisoners, for no evidence is there against them: on the part of the informer, for no evidence is there against him. But (says somebody) by simple and direct refusal to swear, unaccompanied with any such declaration of opinion, will not the same effect be produced? and is it not produced accordingly? Natural enough this question: but to find an answer to it, belongs not to the present purpose.
54. Yes, atheists; of Quakerism or Moravianism, declaration can no longer serve; but atheism remains as good as ever: power of pardon, a share in the king’s prerogative, remains the reward for it.
55.—II. Secondly, as to its inefficiency, still as applied to testimony:—To a mode of punishment, which might, in an almost unexampled degree, be efficacious, it substitutes a mode in an extraordinary degree inefficacious. Of contempt of court, when, in any other shape, committed in court, commitment to prison being an instantaneous consequence, the same consequence might be attached to such contempt in this shape. Under the name of evidence, testimony, when orally delivered, not being received without an immediately previous oath-taking; thus it is that mendacity, whenever it is thus committed, is committed in the shape of perjury; and in this shape this mode of proceeding against it has been—if not employed, at any rate threatened: in which case no individual is there, on whom the expense and vexation attached to the character of prosecutor would be imposed: accordingly, what in relation to this matter we shall have humbly to propose is—that in every case in which it is seen that the whole of the stock of evidence which the suit affords, is brought out at the time of the perjury, punishment for it may instantaneously follow.
56. So much as to efficiency when the ceremony is not employed: how stands it now that the oath is so almost universally employed? Punishment none, without the concurrent testimony of two witnesses: nor then, but at the expense of a separate prosecution, commenced at a distant point of time, and with such disadvantageous prospects as to success. Proportion of the number of cases in which prosecution has place, to the number in which delinquency has place,—at what shall it be set? Say, for example, at a venture—out of ten thousand, scarcely so much as one. So much as to inefficiency.
57. Thirdly, as to needlessness. For a complete and conclusive demonstration of this property of the ceremony, we humbly beg leave to call on the testimony of the Honourable House. Compared with the importance of the legislative, what is that of the judicial function? When, for the formation of a ground for a legislational proceeding, evidence is called in, in what instance is employment ever given to this ceremony by the Honourable House?
58. Thus efficient to bad purposes, inefficient and needless to any good purpose whatsoever in particular,—in particular, to that of giving execution and effect to the law,—far indeed is it from being so, to the sinister interest of Judge and Co.
59. Already mentioned has been its needfulness, with relation to the profit by written pleadings.
60. Add to this, the encouragement and invitation given to dishonest plaintiffs and defendants, by the chance which it produces of failure on the part of honest ones; and thence the addition of dishonest to the aggregate of honest demands and defences; the profit to subordinate judicial functionaries, by the fees, partly in the direct way, partly in various indirect ways, necessitated; and to judges their superordinates, correspondent profit in the shape of patronage,—all by the clumsy and complicated machinery, which, to so large an extent, is, on this occasion, employed.
61. See the country over, for example, attorneys converted into masters extraordinary in chancery, and for no other purpose.
62. Note now the consequence as to delay, and non-decision and misdecision: or in one word, failure of justice. No machinery at hand, no oath capable of being administered; and the testimony, how important soever the purpose, lost, and the purpose frustrated: frustrated—always for a time; not unfrequently for evermore.
63. So much for its effect when employed on a judicial occasion, as well as for a judicial purpose. Now as to its effect when employed on an occasion not judicial (there not being any actual suit in the case:) only for an eventual judicial purpose, to wit, in case of prosecution for perjury in respect of it. Under this head, in proof of its inefficiency, the bare mention of the words custom-house oaths might of itself be amply sufficient.
Other instances, in which the quality of it is demonstrated and the number ascertained might be adduced; but the range of them being less extensive, respect for religion and its teachers commands our silence—one observation alone excepted; namely, that to oaths, whether assertory or promissory, the sanction is the same.
64. So much for testimonial oaths. Now as to official. Various are the occasions on which, correspondently various the purposes for which, under the existing system, the obligation of giving employment to this ceremony has place.
Principal occasion, that of entrance upon office: declaration with relation to opinions—promise with relation to conduct. On neither of these occasions is punishment as for perjury, or punishment in any other shape, attached to what is regarded as a violation of the oath. In all these cases, whatsoever good consequence is looked for, from the solemn promise with the oath attached to it, would (we humbly contend) he equally obtained by a promise declared with like solemnity, unincumbered by the oath.
65. In all these cases, intended or supposed effect of it is—its operating as an instrument of security: real effect, operating as an instrument of deception and consequent insecurity: reliance being placed on this inefficient security, others that would be efficient and applicable, remain unlooked out for and unapplied.
66. Take, for example, the fee-fed judge: whatsoever line of conduct—conformable to justice or adverse—that it happens to be agreeable to him to take,—pronounced with appropriate emphasis, out come the words—“My oath!” His oath—does he say? What oath?—who ever saw him utter any form of words under that name? And if uttered, what would it be found to amount to? Just nothing: some vague generality, vying with cobwebs in effectively binding force.
67. Enter now upon the stage jurymen’s oaths—and with them the everywhere abundant and perennial crop of jurymen’s perjuries. To the exercise of this important function, the indispensable obligation of bearing the supposed effective and so much relied on part in this ceremony, stands attached: at the same time, for the production of declared unanimity,—truly or falsely declared as it may happen, continuance in one and the same apartment without respite or refreshment, except by permission of the judge, though death by inanition, with the antecedent course of torture, be the consequence: torture to such a length, at no time ever endured or endurable.
68. Here then as to the consequence in the shape of perjury. Declaration of opinion it is, opinion itself it is not, in the power of torture to produce. Here, then, as often as diversity of opinion has place, here are two antagonizing forces applied to one and the same man, at one and the same time: here is the oath to make him speak true, here is the torture to make him speak false: the torture—this altogether irresistible instrument, employed in the manufacture of perjury.
69. First, as to the prevention of mendacity. To this, altogether needless, on inspection, will be seen to be this ceremony, with the perjury thus essentially sticking to it: thrown away the price—and it has been seen how dear a one—paid for the use of it. Look, in the first place, to natural religion. If mendacity, independently of this or any other ceremony, does not stand prohibited,—prohibited, which is as much as to say, visited with punishment, what else is there that does? What, then, is the additional security that it affords? No other can it be than that which would be afforded by some extra punishment apprehended in the future life, at the hands of the Almighty, as about to be undergone on the score of the thus supposed aggravation, over and above that which would be apprehended, if the ceremony were not employed.
70. Now then, for this supposed additional security, what is the price paid? An assumption is made and acted upon: and what is it? That, to the purpose in question, the power of the Almighty is at the disposal of any and every man, who for any purpose chooses to employ it: of any man, howsoever bad, for any purpose howsoever bad, the Creator an instrument in the hand of every one of these his creatures!—an instrument, on the part of which compliance is more assured, than it can be on the part of a slave!—the Almighty more surely obsequious to the will of the most wicked man upon earth, than a sheriff is to that of the judge!
71. Look, lastly, to revealed religion. On this score, we humbly beg that, now at length, by the constituted authorities, and in the first instance by the Honourable House, it may be taken into consideration, whether, in addition to these considerations, or even without the aid of them, the words swear not at all, in more passages than one, attributed to the holy Author of our religion, might not suffice to put an end to swearing, in compliance with compulsion, imposed by those same authorities.
72. As to mendacity, the production of this so abundantly thus produced commodity—is this then the object? Neither to this purpose is it at all needful. Legislators, if simple mendacity will content you—mendacity without perjury for a zest to it—abolish the ceremony: there remains the torture, which is quite sufficient to produce the thus desired effect.
73. Note here, the effect of the torture in the production of mendacity belongs not precisely to the present head. It is however too influential on justice, and the efficiency of the main body of the law, to be suffered to pass without notice. It is—the placing the decision, and thereby in so far the lot of the parties—the placing both under the command of the strongest will: in other words, of the most long-suffering and persevering stomach.
74. Of this ceremony, such as it is, is what is called a violation, a sin? So many times as, being employed, it is violated, so many are the sins created, not to say committed: abolish the ceremony, the manufacture of these sins is at an end: and sins, in number altogether infinite, saved from being committed. Such the security supposed to be thus given against mendacity. True it is that times were, when—not merely on a certain occasion for a certain purpose,—not merely in conjunction with other securities for veracity,—but singly, and to the exclusion of all such other securities,—this ceremony, having been instituted, was frequently performed.
75. Witness the so stated wager of law. Occasion, demand of money on the score of debt: purpose, the obtaining a discharge from the demands. Witness, the defendant himself; testimony, assertion in general terms, denying that the money forming the subject-matter of the demand, is due. With this witness came a chorus, consisting of twelve others, styled compurgators; subject-matter of their testimony, their belief that what their principal and leader of the band—the defendant—had been saying, was true. But these times, what were they? Times of primeval and grossest ignorance, superstition, and barbarism.
76. In conclusion, as to the whole of this momentous subject, and our respect for the time of the House not permitting us to do anything like complete justice to the importance of it, we humbly beg leave to give intimation to the Honourable House, that the form of a petition, in which fuller consideration is given to it, is in print, and universally accessible.
77. That, in no case, this part of the institution is productive of good effects, is more than we take upon us to affirm. On it depends, for its existence, the latent, but not the less efficient, virtual veto possessed by the jury, and thus by the strongest stomach among them, over the laws. If, on any point of law to which jury-trial applies, the statute law and common law together is in a state of opposition to the welfare of the community,—in this respect, beneficial, in so far, is the effect of jury trial in its present shape: and on this part of the institution, we beg it may be considered, whether that liberty does not depend—the liberty of the press, to wit—on which everything else, which, in a peculiar manner, is good in the form of government, depends. But to this and the other cases, in which the constituted authorities have a particular interest, more or less adverse to the general interest, such as treason, sedition, and the like, this feature may be preserved, without its extending to any other cases.
78. In any case, to produce whatsoever good effect is expected from the ceremony, the substitution of the word affirmation (or, to give indication of deliberateness,) asseveration, to the words swear, oath, and maketh oath, might, we submit, most fully and effectually suffice.
79. To conclude, neither to the prevention of mendacity, nor (if such should be the pleasure of the king in parliament) to the preservation and augmentation of mendacity (or, as it is more familiarly called, lying) is the preservation of this cumbrous and dissension-sowing ceremony necessary. This we have already taken the liberty to observe and show: and we humbly trust, that to the preservation of that veto, which, as above, so long as the government of this country continues in its present form, is so indispensable,—this same ceremony will not be found to be in any way more necessary.
80.—VI.Device the Sixth—Delay, in groundless and boundless lengths, established.
Delay is, so long as it lasts, denial: and we invite and challenge any person to say why, though it be but for an hour, denial of justice should have place.
81. In the process of judicature,—of the various sources, or say causes of delay—all of them factitious—the work of Judge and Co.—samples (will it please the Honourable House to behold them?) the eight here following:—
I.Source the first, vacations.—The year split into terms—four in the year—with intervals between them, styled vacations: during which last, so far as could be contrived, denial of justice remains established. Terms, four: vacations, as many.
In the whole year of 365 days, aggregate number of days allotted to administration of justice, 91: to denial of justice, 274: add Sundays in term time, 13; total, 287: to justice not so much as a fourth part of the time allotted to injustice.
82.—II.Source the second, circuits.—For country causes, no trial but on circuits; circuits, in the year, at the most no more than three; till the other day, but two: in some counties, now two; till the other day, no more than one. In these cases, what is the crime for which denial of justice—in a word, outlawry (for this it is, so long as it lasts) is thus made the penalty? Is it the crime of living at so great a distance from the metropolis? If not on the account of crime, on what other account is the condition of one part of his majesty’s subjects, of all ranks, rendered, in so essential a respect, to such a degree, inferior to that of all besides?
83.—III.Source the third, fixed days.—Between one proceeding and another, intervals established by fixed days, of which, further on, under the head of Blind Fixation: days the same, length of interval the same, for every individual suit: say, for example, of a fortnight, whereas necessary will be, in some cases, no interval, in others a day, in others again a year or years: none where, upon plaintiff’s own showing, his demand is ungrounded; a day or less (for notice) when the residence of both parties is in the near neighbourhood: years one or more, when, at the moment, defendant’s residence is, for example, at Australia.
In this latter case, if, as in the established mode, inaction on the part of a defendant is by the judge acted upon as if it were conclusive evidence of the justice of the demand, and judgment and execution take place accordingly—here delay gives place to what is still worse: namely, precipitation (of which presently) with misdecision and misconduct for its certain consequences.
84.—IV.Source the fourth, written pleadings.—Of these, above. If, a mass of written allegations being exhibited, loss of cause is, as under the existing system, established as a penalty for the non-exhibition of correspondent counter-allegations,—allowance of time for framing them is necessitated, and, on each individual occasion, time adequate to the need, delay in indefinite quantity, is thus made necessary to justice.
85.—V.Source the fifth, mischievous removals.—Needless transference and bandying of suits, transference of a suit from the judicatory in which it has been commenced, to a different one in which it is to receive termination or continuance, as to which under the head of Device the tenth, mischievous transference, &c.
86.—VI.Source the sixth, equity procedure.—The mode which has place in the judicatories called courts of equity: a mode altogether different from that which has place in the judicatories called the common-law courts; and in the shape of delay, as also of expense in a prodigious degree still more productive of torment.
87.—VII.Source the seventh, court christian, alias spiritual court, alias ecclesiastical court, procedure.—Of this mode, differing again from both the others,—and, in lengthiness of delay and expense vying with that of the equity courts,—mention is made only to show that it has not been overlooked: for though, in delay as well as expense, it view with the most dilatory of the two,—yet, the number of suits carried on in it is to such a degree comparatively small, that the use derivable from the picture of the additional torment produced by it, would not, on the present occasion, pay for the space of time and labour it would necessitate.
88.—VIII.Source the eighth, procedure in appeals; that is to say, demands made to a superordinate judicatory, for reversal or other change, in the judgments, otherwise styled decrees,—ultimate or intermediate, styled interlocutory,—pronounced in the judicatories,—original, or say immediate,—in which the suits respectively took commencement or received continuance.
89. To procedure in equity courts and on appeals, development is to the present purpose necessary, and here follows.
First, as to equity procedure. Endless would be the task of giving anything like a correct and complete sketch of the system of delay, of which the judicatories, styled, as if in mockery, courts of equity, present the scene: a few slight touches are the following:—
90.—I. In regard to elicitation of evidence, modes in one and the same suit, three: namely, the epistolary, or say written mode; and two varieties of the oral, or say word-of-mouth mode.
91. Epistolary mode. Employed at commencement, questions styled interrogatories, put by plaintiffs to defendants: name of the instrument of which they form a part, the bill.
92. Between each such string of interrogatories, and the correspondent string of answers (name of the aggregate, the answer,) an interval of months. In one amply extensive parcel of the whole number of these suits, the end in view, as prescribed by interest, is, on the plaintiff’s side, the maximization—not of dispatch, but of delay: that interest being accompanied with the faculty of multiplying those intervals of delay by an unlimited number. Sufficient of itself is this state of things to spin out into years, a suit, to which, by an interview between the parties, in the presence of the judge, as in the case of procedure before a justice of the peace, termination might be given in the same number of minutes: debt, for example, on a note of hand, whether for forty shillings or forty thousand pounds.
93. To elicit, per contra, for the benefit of the defendant, whose self-disserving evidence has thus been elicited, the like evidence from one who is plaintiff in this same suit, another such suit, commenced by a bill styled a cross bill, is made necessary. Thus, lest the above-mentioned delay should not be sufficient,—what, in a common-law court, would be but one suit, is split into two.
94. Note, that as yet not a particle has been elicited, of that which comes from the only source from which a common-law court will suffer any evidence to be elicited,—namely, the testimonial or other evidence capable of being furnished by extraneous witnesses; extraneous on the present occasion, so called of necessity, to distinguish them from parties, where, as above, information is received from them, or called for at their hands; say accordingly party witnesses, or testifying parties: and, before the elicitation of any such evidence is so much as commenced, money, to the amount of hundreds, or even thousands of pounds, may, at the pleasure of the plaintiff, if rich enough, be extorted from the defendant, if he has it: and thus is his utter ruin produced.
95.—II. Oral mode employed subsequently in the elicitation of the evidence of extraneous witnesses, and sometimes in the elicitation of ulterior evidence from the defendant. Scene, the examiner’s office: mode of examinations, secret.
96.—III. Oral mode employed in addition to the above, in the elicitation of evidence relative to matters of detail. Scene, the office of the subordinate judge, styled a master in chancery. For attendance at this office, not more than an hour at a time ever allowed in the same suit: and by any one of these actors, of all of whom it is made the interest to maximize the delay, the hour may be cut down to a time too short for the doing any part of the business. Nor does any such meeting take place till after three appointments, with an interval of several days between the second and the third. For these actors, if so they may be called, for every one of them, fees, extorted by the power of the superordinate judge, the chancellor, as if they had all attended: the master establishing this mode of obtaining money under false pretences, and sharing largely in the profits of it. Of late years, the salaries of these functionaries have received large increase: and this and all their other modes of depredation left undiminished. Had the enactment made by parliament (it is that of the 22 Geo. II. ch. NA, § 1,* ) been applied to them, as it would have been had they not been in a public trust, not one of the judges by whom, for several generations, these situations have been occupied,—not one of them who would not, over and over again, have been either whipt, pilloried, or transported; for only by power, and consequent impunity and complicity with judges of a still higher order, not by innocence, are they distinguished from those delinquents who, under the name of swindlers, are every day so dealt with.
97.—IV. By these judges, vacations made for themselves: some, of not less than seven months out of the twelve: witness, declarations made by men of the first eminence in the profession: made in print, years ago; and confirmed by the confession implied in uninterrupted silence.
98. All this forms as yet no more than a part of the length of delay established in equity procedure.
In the greater number of the individual suits carried before the superior common-law courts,—after the common-law suit has been made to run its length, still farther length may be added to it; added by any defendant, who, being rich enough, has an interest in so doing; namely, by a suit, styled, as above, an injunction.
99. In the year 1824, April 25, year 5th of the present reign, issued a commission: purpose of it (so therein declared,) introduction of improvements and changes: subject-matter, declaredly confined to equity courts and their proceedings. Five years, within a trifle, have elapsed, and in all this time no improvement made; in consequence, no change made but such as, in comparison with the abuse, was, in extent, conspicuously trifling, and, in quality, has proved to be worse than none.
100. In addition to this, another commission instituted in the year 1828, composed of a different set of commissioners: subject-matter expressly confined to the superior common-law courts and their proceedings, as if, in the practice of two sets of courts, with their branches of jurisdiction, to such a degree entangled throughout the whole field,—it were possible to make any substantial improvements—improvements in either,—without change, and for that purpose, all-comprehensive scrutiny, applied to the other.
101. We humbly entreat the Honourable House to consider whether it be in the nature of man that a separation of this sort, thus deliberately made, by, or by the advice of, persons perfectly conversant with the whole of the business, could have had any better object than the giving perpetuity to a system of depredation and oppression thus portentous.
We shudder at the bare idea of the Honourable House rendering itself an accomplice of such enormities, by remaining silent and inactive, after receipt of this our humble petition, and forbearing to apply either the remedial system, which we shall take the liberty to suggest, or some other not less effectual, if any other such there be.
102. Now for the remaining source of delay—appeals and writs of error. Omitting particular cases, in endless variety, when, on the ground of alleged misdecision, a suit is transferred from a relatively inferior to a relatively superior court,—if it be in equity procedure, appeal is the name—the name given to the operation, or the instrument by which the transference is effected: if it be in common-law procedure, writ of error is the name. Appeal is the term thus put foremost, as presenting, to an unlaw-learned mind, a clear idea; writ of error a confused one.
103. Note, that only for alleged misdecision, that is to say, either at the conclusion, or during the continuance of the suit, are either appeals so called, or writs of error, received. But, not more effectually done is injustice by misdecision than by non-decision: by non-decision, whether after a suit instituted, or for want of a suit instituted.
104. Causes of such want, any one of these which follow:—On the minds of persons wronged—
I. Opinion of the relative inaptitude of the system.
II. Opinion of the relative inaptitude of the judges, one or more, employed in the application of it.
III. Fear of being, at any time after commencement, and before conclusion, sunk into the gulf of ruin by the weight of the purse on the other side.
IV. Or, in other situations, relative indigence, such as to produce an utter incapacity of giving so much as commencement to the suit.
105. In some instances, in the case of a writ of error, the appeal goes immediately from the four-seated court in Westminster Hall to the House of Lords: in other instances, another and more numerously-seated Westminster-Hall judicatory of appeal is interposed, under the name of the Exchequer Chamber.
106. By an appeal, in which and whatsoever way denominated—an additional mountain of delay is set down upon the mountains above sketched out. But of appeal, in both cases, there are stages upon stages, mountains upon mountains, set down, one upon another.
107. For an example of the stages, or say stories, in this pile—behold in Blackstone the following: sorts of cases to which they apply, those called civil:—
I. From various “inferior courts,” to the Common Pleas (iii. 40.)
II. From the Common Pleas to the King’s Bench (iii. 40, 56.)
III. From the King’s Bench to one of the three courts, all confounded under the name of the Exchequer Chamber, composed of so many different lists of judges (iii. 56.)
IV. From the Exchequer Chamber to the House of Lords (iii. 56.)
108. Note well the organization of this chaos.
From the four judges of the Common Pleas, appeal to the four judges of the King’s Bench: from these, back again to those same four judges of the Common Pleas; who are thus expected, every one of them, to pronounce condemnation on his own act, with the addition, however, of the four judges styled Barons of the Exchequer: which same court of the Exchequer is “inferior in rank,” says Blackstone, iii. 43, “not only to the court of King’s Bench, but to the Common Pleas also.” Thus, to apply conviction to an alleged error in one court, the business of two others is put to a stand-still. To complete the confusion, nothing more is wanting, than to give an ulterior appeal from the exchequer chamber immediately, or through the medium of the House of Lords, to a court composed of the judges of some one or more, or all of the judges of the courts herein just mentioned, under the name of the “inferior courts.”
109. Of the gradation here exhibited, was ever any instance exemplified in practice? Probably not. But why not? Answer—Because the rapacity and wickedness of judges—creators and preservers of this system—have to such a degree outrun the wickedness of their pupils, the attorneys, and the opulence of individuals, whom they have thus employed in the endeavour to convert them into dishonest suitors.
110. Now as to appeal and its stages, in the so-called equity courts.
111.—I. When the suit is in the first instance brought before the Chancellor, stage of appeal, but one—appeal to the House of Lords.
112.—II. When the suit is in the first instance before the Vice-chancellor, each party has the option between, an appeal immediately to the House of Lords, or, first to the Chancellor; then from him,—as in the instance of this same appellant, or of the party on the other side,—a further appeal may be made to that same Right Honourable House.
113.—III. So, where the suit is in the first instance brought before the other subordinate equity judge, whose title is the Master of the Rolls: a functionary, who, under this absurd title, has for centuries exercised the functions of a substitute to the Chancellor; in a word, those of a Vice-chancellor, though without the name.
114. In equity procedure, stages of appeal have place, disguised under different denominations.
115.—I. Under the name of exceptions to report, appeal from the judicatory of a Master in chancery, to that of the Chancellor, the Vice-chancellor, or the Master of the Rolls, as the case may be.
116.—II. Under the name of a rehearing, appeal from any one of those functionaries to his successor.
117.—III. Under the name of a rehearing, appeal from any one of them at one time, to himself at another time; for thus are two sorts of proceedings, so different in tendency disguised under the same name.
118. By the Master of the Rolls or the Vice-chancellor a definite decree (suppose) has been pronounced: plaintiff or defendant, losing his cause by it, proposes to himself to take, by means of appeal, another chance. To which, then, of the two judicatories, shall the appeal be made?—the Chancellor’s court, or the House of Lords? For answer—the solicitor of the losing party takes the soundings of the two purses, of his client’s and of the adversary’s: if in his client’s there is depth enough for both courts, he recommends the chancellor’s as the most eligible court; namely, that from thence if, without reproach to himself, he has the good fortune to succeed in making his client lose his case a second time, he may carry it into the House of Lords, in which there being no ulterior judicatory, it will be his interest, for reputation’s sake, and accordingly his endeavour, to gain rather than lose it: from the Chancellor to the House of Lords; that is to say, from the Chancellor under that name, to him, said Chancellor, under another name.
This course, it being that which, in the situation of a solicitor, it is every man’s interest to take, is that which, with a view to legislative arrangements, every man, unless prevented, ought to be expected to take; and as to a solicitor, so should this expectation apply itself to every dishonest plaintiff or defendant, who being in the wrong, and knowing that he is so, has formed a plan for purchasing of the judges in question the faculty of acquiring or retaining the estate in question, by the ruin of the destined victim, thereby availing himself of the offer which, though not in words, is not the less in deeds, held out by the several members of the learned brotherhood to all who are respectable enough to be able to give acceptance to it: yes, respectable enough; for, in the language of the opulent, opulence and respectability are names of the same thing.
119. A word or two as to the particular sources of profit: profit to Judge and Co. from the delays manufactured as above.
I. By the delay are produced, as above, dishonest suits and defences, which otherwise would not have place: the evil hour is thus staved off to the last moment. To a dishonest defendant, the delay produces, for a time, if he be solvent, at any rate common interest of money correspondent to the duration: add, if in trade, profit of trade; if he be insolvent, the faculty of converting the whole to his own use. Of this profit, what part, if any, shall be net, depends upon the proportion as between debt and costs of suit. Of the costs, one constant portion is—that which is laid hold of by Judge and Co., the dishonest man’s partners and accomplices; laid hold of in the first instance, and before so much as a farthing’s worth is paid to any one of those to whom the debt is due.
120.—II. When the debt is such, that the interests amounts to still more than the price paid to Judge and Co. for the delay, the delay follows of course.
121.—III. Delay breeds incidents; incidents, fees. Who shall number the varieties of these prolific incidents?
IV. Bred out of one incident—namely, the incident of death—one inducement to delay is, in cases to a large extent, the extinction put upon the suit, by the death of a party, on one side or the other,—and, on either side or each side, deaths of parties may have place by dozens and scores. Invited by Judge and Co. for joint profit, the injurer, by delays made when in the situation of defendant, helps to consign the injured plaintiff to a lingering death, the result of vexation; Judge and Co. having taken care to exempt from the obligation of making compensation the murderer’s representatives. “A tort is a sort of thing that dies with the person:” such is the expression given to the rule, in the lawyer’s dialect of the flash language.
122.—V. When these factitious delays were first instituted, the minor portions of the year sufficed for as many suits as money could be found in the country to pay for, in fees: the major part being consecrated to ease: in proportion as opulence has increased, ease has been exchanged for fees.
123. In the business of the department of justice, is factitious delay useful, and as such justifiable? If so, apply it to the finance and defensive force departments: apply it to the military departments, land service and sea service: in particular, in time of war: not more indefensible is it in those than in this.
124. Whence this difference? Answer—In these cases, were any such factitious delays established, government would fall to pieces: in these cases, accordingly, they are not established: in the justice department, government, however badly, can go on, the delay notwithstanding: in these accordingly, they are established.
So much for government. Now for surgery. To a patient who wants to be cut for the stone, does the surgeon ever say, wait with the stone in your bladder till I have nothing else to do? No: by the medical man, no such thing is ever said: by the fee-fed judge it is in effect, as often as he makes a plaintiff wait for his money, when wanted for making payment to the surgeon. Whence the difference? Answer—From this:—To produce the delay without losing the customer, is not in the power of the surgeon: it is in the power of the judge: and, so far from losing, he is a gainer by it.
125. On this occasion, as unhappily on so many others, religion is pressed into the service of injustice. To St. Hilary, a Catholic saint—to St. Michael, a Protestant as well as Catholic saint—to Christ Jesus—to wit, by the word Easter, nay, even to the whole incomprehensible Trinity, as St. Athanasius so truly styles it,—does this misery-making employment stand assigned.
26. Out of the Sabbath is made another pretence. “Which of you shall have an ox or an ass fallen into a pit, and will not straightway pull him out on the sabbath-day?” By whom this is said, may it please the Honourable House to consider. If, when it is by mere accident that the damage has been produced, worship of the God of Justice is no sufficient warrant for delay of justice, how much less when it is by injustice?—by groundless distress for rent (suppose) or by robbery? By the worship of the God of Justice, would not an appropriate overture be furnished to the oratorio of judicature?
127. Wives converted into widows, children into orphans; both by slow murder rendered destitute; depredators fattened upon the substance of these victims, Judge and Co. contrivers and sharers in the booty,—such is the scene presented by the fruit of this wisdom—of this branch of ancestor wisdom: the branch to which we are indebted for the plantation of judge-made law.
These two memoriter verses it is our humble wish to place in the memory of the Honourable House.
Device the Seventh—Precipitation necessitated.
Excess on one side is thus made the parent of excess on the opposite side. By delay is produced precipitation: and, reciprocally, by precipitation, more delay. Grand and principal instrument of precipitation, jury-trial, as hitherto conducted; but, to its efficiency, vast addition made by circuits.
129. Of the suits out of which a pretence for recurring to this mode of trial is manufactured, classes two: one, composed of those which, by the very nature of the case, are rendered incapable of receiving their termination from a judicatory so composed.
130. Instance, account: a case in which, under the name of one single suit, may be included suits in a number altogether indefinite; suits, as many as the account contains items, each with a separate batch of evidence belonging to it.
131. The other class of these indeterminable suits, is composed of those which are rendered such by accident; that is to say, by the magnitude of the aggregate of the evidence. In the case of Elizabeth Canning, prosecuted for perjury,—time, about the middle of the last century,—seven days passed before the trial was concluded. Since then, instances of still longer duration might, perhaps, be found.
132. In the interval that has place at present between circuit and circuit, what limit can be assigned to the number of suits that might present themselves, if the door, shut against them by this institution, were thrown open?
133. Behold now Judge and Co., syringe in hand, forcing and injecting the whole mass of all the suits into a compass of three days, or in some counties two days. What is the consequence? On condition of their being heard badly,—in regard to some portion of the whole number, possibility of being heard has place, and accordingly heard they are: in regard to the rest, even under that condition, no such possibility has place.
134. On those which remain in hand is stamped the appellation of remanents or remanets. For Judge and Co. the more remanets the better: the more fresh suits for redress of one and the same wrong.
Not that the number of these disastrous effects is—at all times, or even commonly—altogether as great as that of the efficient causes: for commonly, by the postponement, some, in number more or less considerable, are, at this stage of their existence, prematurely killed: cause of death, deperition of evidence, or death of a party: more frequently perhaps than either, on the part of the injured plaintiff, exhaustion of the power of finding the matter of fees. But for this, remanets, in swarms, might go on, begetting one another to the end of time.
135. When one of these indeterminable suits comes to be called on, brought to view then is the discovery—that, from the first, such it was in its very nature. Re-discovered on every circuit is this discovery: re-discovered for centuries past. But, the jury-box is not the less worshipped. Why? Answer—Because, as at present constituted, trial by jury is, in every instance, trial with lawyers.
136. Fresh suits produced by precipitation are—1. In an immediate way, new trials; 2. In an unimmediate way, namely, by means of remanets, arbitrations.
137.—I. First, as to new trials. Greater in this case may to the parties be the expense, greater accordingly to Judge and Co. the profit, than by the original suit. For, preceded always is the new trial by motion for ditto: which said motion is one sort of suit, carried on for the purpose of determining whether another suit shall be carried on or not: shape of the evidence on which the original suit is determined, the best shape: shape, in which the excretitious suit is sometimes determined, the worst shape—namely, affidavit evidence. Barristers necessarily employed as well as attorney: whereas, in the original suit, it may have been carried down to trial, and perhaps most commonly is, without the intervention of argumentation by barristers: commonly, that is to say, where the general issue (as the phrase is) being pleaded, no demand has place for written pleadings of more than a determinate and comparatively short length.
138.—II. Now as to arbitrations. Of the disadvantages this sort of suit labours under, with correspondent advantage to Judge and Co., samples are these:—
1. Power for the attainment of evidence comparatively inadequate: not comprehending the power of obtaining it from all places: not ascertained whether in it is universally comprised any power for rendering attendance on the part of witnesses effectually obligatory.
139.—2. If not, then, on many occasions, the body of the evidence will be not merely incomplete, but, in the sinister sense of the word, partial: admitted, and perhaps exclusively, witnesses, with a bias on their testimony—“willing witnesses,” as the phrase is: and these, biassed all of them in favour of the same side: of which state of mind the very fact of the willingness affords some, although not conclusive, evidence.
140.—III.Evidence of parties. Admitted it cannot be, without giving up, as completely adverse to justice, the general exclusionary rule; excluded, not without substituting misdecision, or denial of justice, to right decision, in a large proportion of the whole aggregate number of the suits, demand for which has place. Yes, denial of justice: for, in so far as it is foreknown that by the exclusion put upon evidence necessary to success, all chance of success is excluded,—in so far the suit will not be instituted.
141.—IV. Professional persons, if chosen as arbitrators, must be paid: here—be the payment ever so moderate and well-regulated—here will be a vast addition to the expense: the remuneration being over and above that which, at the expense of the whole community, is given to the permanent judges—judges so styled and intituled.
142.—V. But, in cases thus disposed of, the mode of payment is in a flagrant degree corruptive and adverse to the professed end: it is payment by the day; a mode, by which a premium is given for the maximum of delay and extortion: corruption, delay, and extortion, which it is not in the power of human sagacity to prevent, punish, or so much as discover and hold up to view: corruption, which it is not in the power of flesh and blood to remove.
143.—VI. These professional judges, who are they? Naturally such, of the choice of whom, self-regarding or sympathetic interest is more likely than regard for the interest of justice—more likely than appropriate aptitude—to have been the cause. In the train of the judge come always, along with the briefholding, briefless barristers. Of the choice made, cause not unfrequent, and certainly none so natural, as recommendation at the hands of the judge. Proportioned to the value of every situation is that of the patronage by which it is conferred: and, recommendation taken, patronage is exercised.
144.—VII. Question, which of the suits shall be tried?—which, by being left untried, converted into remanents? This will depend upon the result of the conflict of interests. Yes: but of whom?—the suitors? No: but of learned lords and ditto gentlemen. By sinister interest, full is the swing enjoyed in this case: into it, is it possible for the eye of public opinion in any degree to penetrate?
145. In respect of favour: manifest it is here, upon how different a footing stand the forced arbitrations brought on in this circuitous mode, compared with those spontaneous ones which originate with the parties. So many spontaneous arbitrations, so many usurpations upon the authority of learned judges. Moreover, most commonly the arbitrators will be unpaid, or at any rate, unlaw-learned, individuals: whereas, on the circuit, a suit will not only have already brought grist to the learned mill, but have moreover brought with it a superior chance for finding learned arbitrators.
146.—VIII.Device the Eighth—Blind Fixation of Times for Judicial operations.
I. Only in relation to the exigencies of the case, and the interests of the sincere among suitors, not in relation to Judge and Co.’s profits, will, in this case, the blindness be seen manifested.
147.—II. Blindness to the exigencies of the case? Yes, to all exigencies: to all differences between time and time, to all differences between place and place.
148.—III. Between dishonesty and insanity, on the part of the creators and preservers of this arrangement—that is here the question—What?—for holding intercourse with the judicatory—for paying obedience to its mandate—appoint, in all cases, the same day for every individual subject to its authority?—on whatever spot, wherever at the time he happens to be, whether within a stone’s throw of the justice-chamber, or at the Land’s-end, and whether in England, or in Australia, in Peru, or in Nova Zembla? Except for the purpose of deception, is it in the nature of man that any such arrangement shall have presented itself to a sane mind? No: not of honest blindness is this the result; but of sinister discernment on the part of the contrivers, taking advantage of that blindness which, on the part of the people, has, with such deplorably successful industry, been organized.
So much for the policy of dishonesty.
149. Behold now the policy of common honesty and common sense: yes, and everywhere, but in the land of chicane, common practice.
I. No suit being (suppose) ever commenced, but by application made to you (the judge) in your justice-chamber, by a proposed plaintiff,—or, in case of necessity, a substitute of his,—settle with him, before you let him depart, the means of intercourse with him during the continuance of the suit; the further obligation being at the same time laid on him, of continuing the line, or say chain or series of those means, by timely information of every such change as shall eventually have place: reference being moreover at all times made to such other individuals, whose assistance to these purposes may eventually become necessary.
150.—II. Learn from him, as far as may be, the like means of intercourse, in the first instance, with all other individuals, whom his examination presents to view in the character of defendants, extraneous witnesses, or co-plaintiffs, or say co-pursuers.
151.—III. At the first attendance of each such other individual, make with him the like settlement.
152.—IV. Should any subsequent attendance on the part of the same or any other individual be, for the purpose of the suit, necessary—accident and other exceptions excepted—let the time fixed for it be as early as, without preponderant evil in the shape of expense and vexation, it can be.
153.—V. Accidents: for example, death, sickness, impassableness of ways, calamities, casualties, confinement, or transference by force, by fraud, or the like.
154.—VI. Correspondent arrangement as to inspection: inspection of things moveable, requisite to be inspected by you, in the character of sources of real evidence.
155.—VII. So as to things immoveable.
156.—VIII. So as to persons, by sickness or infirmity, rendered immoveable.
157.— So, as to instruments in writing: whether already written; or, for the purpose in hand, requiring to be written, allowance made in this last case for the quantity of time likely to be made requisite by the quantity, or the quality of the matter.
158.—IX. As to the requisition thus to be made of the maximum of dispatch, note the exceptions following:—
I. When, of two individuals, attendance at the same time is requisite, the residence of both or either,—from each other and from the judgment-seat,—is at the time, at a certain degree of remoteness: in this case, for the attendance of him whose residence at the time is nearest, postponement; that is to say, to the earliest time, at which attendance can be paid by him whose residence is most remote,—is necessitated by the exigency of the case.
159.—II. So, in regard to any greater number of individuals, on whose part conjunct attendance is necessary.
160.—III. So, when the exigency of the case requires the attendance of one individual to be postponed till after attendance paid by this or that other.
161. With each individual, with whom, for the purposes of the suit, intercourse is holden,—places for intercourse, and in that respect modes of intercourse, two:—1. The justice-chamber; 2. Other places at large: in the justice-chamber, by attendance of the individuals there: other places, in extraordinary cases by visitation, transition, or say migration, thither on the part of the judge. Thus as to intercourse in the oral mode. For intercourse in the epistolary mode, in ordinary cases it will be carried on by transference made of the written instrument or other source of evidence, from place to place; transference of letters, by the post, for example: from and to the justice-chamber, will be this transference, in most cases.
162. In this way will conjunct provision be made for the exigencies of each individual suit, and for the convenience of each individual concerned;—delay, expense, vexation—all minimized. So much for the policy of honesty.
163. Return we now to the policy of dishonesty, as it presents itself to a closer view. On the part of each such individual, requisite will be the performance of some operation, and, included under the head of operations, is that which is performed by the exhibition of some written instrument or other moveable source of evidence, as above.
164. Behold now the course, which, in regard to each such operation, and each such instrument, the dishonest plan prescribes.
For each such operation, on the part of every individual concerned,—fix one and the same day. Then, to the minimization of the evils in question—the evils, to wit, of delay, vexation, and expense, you will substitute maximization: for, in each individual instance, the chances, against the so fixed day’s being a proper day, are as infinity to one.
165.—I. In regard to operations, it will be your care to maximize the number of those by which birth is given to written instruments: for in this case, superadded to the profit—profit in the operation—is the profit upon the instrument. On this occasion, reciprocal generation has place: operation produces instrument; instrument, operations.
166.—II. So, the length of each such instrument.
167.—III. So, the number of the instances in which, for the performance of the several operations, days are appointed on which the performance of those same operations respectively is impossible: for by the impossibility the need of ulterior operations and ulterior instruments will be established.
168.—IV. So, and thence, the number of instances in which need of application for further time, and application accordingly, shall have place; in particular, the number of those in which the allowance of such time shall be a subject-matter of contestation.
169.—V. So, accordingly, of the instances in which the notices, without which compliance cannot have place, shall not have been received.
170.—VI. So, accordingly, of those in which, the notice shall not have been given.
171.—VII. So, likewise of those in which whether the notice has or has not been received and given respectively,—shall be the subject-matter of contestation.
172.—VIII. So likewise the expense of special messengers, employed by professional assistants (in this instance chiefly of the attorney class) in making communication of such notices,—the expense, to wit, for the sake of the profit extractable out of the expense.
173.—IX. So, accordingly, the number of such journeys, and the length of and difficulties attendant upon each.
174.—X. So likewise, in regard to the journeys employed in the making seizure, definitive or provisional and instrumental, whether of persons or things, for the purposes of justice: that is to say, whether for execution and effect to be given to a decree of the judge, or for evidence to be elicited for the purpose of constituting a ground for it.
175. Admirable, under the existing system, is the equipment made for this species of chase:—party-hunting, to wit, and witness-hunting:—a chase in which the fox, instead of being the huntee, is the hunter, and his object is to catch—not as early, but as late, as possible, and through as many turnings and windings as possible.
176. Behold here an example. For the purpose of obtaining, at the hands of the defendant, the service he stands engaged for—say the money he stands engaged to pay—engaged, to wit, by a bond, to which his signature stands attached, adequate ground for regarding it as being his signature, is necessary. This defendant the judge sees standing or sitting in court. Shall this same judge say to same defendant, “Is this your handwriting?” Not he, indeed: no, nor any person by word of mouth. Never since the Conquest was any torment thus barbarous inflicted. By word of mouth, nobody. The hardship of saying Yes, or No would be unendurable. In writing? Yes, so it be by the plaintiff and by a bill in equity, length from half a dozen pages to any number of sheets of ordinarily-sized letterpress: as to time, at the end of years five or more as it may happen. Yes, or by word of mouth, so it be by learned counsel to a witness who has been hired to come, say from Australia for this purpose, if there be no person, whose residence is less remote, and by whom the information can be afforded. Both those resources failing, the defendant, by the hands of Judge and Co., pockets the money: the right owner loses it.
Think of a judge, with this spectacle before his eyes, turning them aside from it—lifting them up to heaven, and proclaiming, in solemn accents, his love of justice!
177. By the arrangements hereinafter submitted, put down altogether would be this pastime.
178. As to fees, inexhaustible is the source of them, thus created by chicaneries about notice.
179. Under the existing system, to this relatively so desirable state of things, with what consummate skill and success, and not less consummate effrontery, the blank fixation device has been adopted, may now be, with sufficient distinctness, visible.
180. To all these sinister purposes, it has been seen how indispensably necessary was the primordial, radical, and all-producing device—exclusion of parties, severally and collectively, from the presence of the judge.
181. So will it presently be seen, to all these same purposes, how exquisitely well adapted is the system of mechanical, substituted as far as possible to mental, judicature.
182. Nor yet, for reconciling the public mind to this host of enormities, and of sufferings produced by them,—are pleas altogether wanting: pleas with which pleasing or imposing ideas stand associated: words, such as they are, have been found in uniformity, regularity, and strictness: pleas furnished by the ascendency so extensively prevalent of imagination over reason.
183. Uniformity? What uniformity? Answer—That produced by the fabled arrangement in which, between the bed and the men reposing on it, uniformity in length was produced by cutting off the redundant part of each body which was longer, and stretching out to the requisite length, each body which was shorter, than the bed. Here is uniformity; and, this being done according to rule, here is moreover regularity; and, for the display of the heroic strength of mind, requisite and produced by this branch of the gymnastic exercise, added not unfrequently is the word strictness: strictness in the observation of justice-killing and misery-begetting rules.
Device the Ninth—Mechanical, substituted to Mental, Judicature.
In so far as, in the production of any effect, machinery is employed instead of human labour, machinery is employed instead of mind: for example, in the shape of a man, an automaton figure, such as has been seen, forming writings with its hands.
185. Origin of this device, a problem: a problem from the beginning, proposed to one another by Judge and Co. Purport of all this—how to administer justice without a thought about the matter: reward for solution,—trouble, time, labour, responsibility,—all minimized: meaning always by time, Judge and Co.’s time: ditto, profit of course, on this, as on all other occasions, maximized. Nowhere in Euclid is to be found any problem more skilfully and effectually solved than by Judge and Co. this.
186. For proof as well as elucidation, one example will supersede all need of recourse to others. This is—the operation styled signing judgments. Machinery and mode of operation, this.
187. Machine, a pair of scales, invented by the demon of chicane, in derision of the scales of justice. Kept in one scale, papers styled judgments; kept vacant the other, for the reception of fees. Drop into it the appropriate fee, up rises the appropriate judgment. This the attorney (the plaintiff’s attorney) takes in hand, and off it goes to the sheriff for execution. Such is the way in which money, to the amount of hundreds of pounds, thousands, or tens of thousands, is made to pass from defendant’s pocket into plaintiff’s. His lordship, under whose auspices this legerdemain is performed, what knows he of all this? Exactly as much as his learned brother in Calcutta.
188. To such perfection is the invention brought—so complete the mechanism produced—not so much as even in pretence is it by the judge that the effective operation is performed. “I have signed judgment,” quoth plaintiff’s attorney. Nor yet is so much as this true. What is true is—that it is by a journeyman of the chief-justice’s that the signature is performed: all that the attorney has done is the paying him for so doing. And the journeyman—what knows he about the matter? Answer—That an instrument, which, on the blind fixation principle, as above, should by defendant’s attorney have been put in by a certain day, had not been put in by that same day.
189. Now for a reason for such judicature: where shall it be found? Without so much as a particle of blame on the defendant’s part, or even on his attorney’s part, in how many cases may it not happen that the failure took place?
190. In a system having for its end the ends of justice—in a word, in the here proposed system, cases forming so many grounds of excuses, would, as in the infancy of English jurisprudence, received under the name of essoigns, be looked out for, and a list formed of them. But, suppose even blame, and to any amount, might not compensation, if to the same amount, suffice?—compensation instead of the ruin, of which execution given to the judgment may be productive?
191. “Persons . . . . obtaining money . . . . by false pretences . . . . may be punished by fine and imprisonment, or by pillory, whipping, or transportation.” These words stand part of the marginal abridgment of the first section of the statute 30 Geo. II. ch. 24, § 1, in the statutes at large; which statute is, in Ruffhead’s edition of the statutes, referred to under the head of cheat, swindler, as the name by which, in common parlance, persons so offending are designated. Seeing this, we humbly entreat the Honourable House that it may be considered whether, by the high-seated functionaries by whom fees are obtained by warrants for attendance paid before them, although such attendances were never paid nor intended so to be, money has not at all times been obtained by false pretences; as also to consider whether if there be, either in a legal or a moral sense, guilt in the obtaining money by such means, the guilt is lessened by the power by means of which such obtainment is effected: whether, if functionaries so seated in those and other judicial situations, were not, to every practical purpose, in this respect, above the law, obtainment by such means would not be an act of extortion, and, as such, a crime; and whether, by the addition of extortion, and, on the part of a suitor, the impossibility of avoiding to comply with the demand so made, the moral guilt attached to the idea of chicanery, or say swindling, is in any degree lessened. We acknowledge that it is in the power of the Honourable House, with the assent of the House of Lords and his Majesty in Parliament, not only by connivance, but by express enactment, to give impunity and encouragement to the above, and any or all other persons, who, being constituted in authority, obtain money by false pretences; and this, while persons not constituted in authority are, for obtaining money on false pretences, punished in manner above mentioned: and moreover, that it is fully in the power of that authority of which the Honourable House is a branch, to give impunity and encouragement to every enormity, to whatever extent maleficent, and by so doing to cause the act not to come with propriety under the name of a crime, nor the actors to be, with propriety, denominated criminals; and accordingly, to cause to be punished, as for a libel, all persons speaking of these under that name: which, accordingly, we forbear to do otherwise than hypothetically, as above: but we humbly entreat the Honourable House to consider whether it would not be more for their honour and dignity to endeavour to repress maleficence in this, as well as in every other shape, than in this, or any other shape, give impunity and encouragement to it.
192. If, instead of this mechanical, mental were the mode of judicature, how would the matter have been managed? Answer—Of each individual case, of each individual person concerned, the circumstances would be looked to; of each individual person the feelings taken for objects of sympathy and consideration; respite upon occasion granted; pecuniary circumstances, on one side as well as the other, taken into the account: claims of other creditors not neglected, though not parties to the suit, nor privy to the application by which it was commenced.
Device the Tenth—Mischievous Transference and Bandying of Suits.
Instead of transference and bandying, the one appellative, removal, might better have been employed: removal—that is to say, of a suit from one judicatory to another.
194. Removal may be, and is, either—1. Established; or, 2. Incidental: established, when by usage it takes place in every individual suit of the sort in question: incidental, when it does not take place but in consequence of some extraordinary operation performed by some person for that purpose; some person usually, if not exclusively, a party on one side or the other of the suit.
195. Under the existing system, when it has place incidentally, a certiorari is the name of the written instrument by the issuing of which the removal is produced: of this further on.
196. Subject-matter of the established removals, two: namely—I. Incorporeal the operation, performed on the occasion of the suit; corporeal the written instruments, brought into existence, or into the custody of the judicatory, in consequence of the commencement given to the suit: including every such account, or say history, as happens to be given of these same operations: as also any such other things moveable, if any, as happen to have been presented, or intended to be presented, to the view of the judges, in the character of sources of evidence—that is to say, real evidence.
197.—II. In case of removal, whether established or incidental, the suit is by some other judicatory received: call this the recipient or subsequential: and for distinction, call the first-mentioned judicatory the originating, original, or primordial.
198.—III. If, after removal, the suit does not return to the primordial judicatory, call the removal transference, or simple transference; if it does return, oscillation or bandying: in case of bandying, the transference is followed by retrotransference.
199.—IV. Emblems—of oscillation, a pendulum: of bandying, battledore and shuttlecock.
200.—V. Where oscillation has place, returns are in any number secured by what has been called pre-established harmony: at battledore and shuttlecock, to every return a fresh application of mental power is indispensable.
201.—VI. As to precipient judicatories, they have place of course in a number correspondent to that of the oscillations of the pendulum, or the strokes of the battledore.
202.—VII. From the operation here termed removal, distinguish that designated by the word appeal. Under every system, appeal is for cause assigned, namely, on the part of the judge of the originating judicatory, either misdecision, or non-decision productive of the same effect as misdecision: misdecision, either ultimate or interlocutory, or say interventional: in any case, misconduct. In the case of what is here meant by removal, no allegation or supposition of any such misconduct has place.
203.—VIII. Under the here proposed system, incidentally, both simple transference and removal have place. But in every case it is for cause specially assigned: thence in the way of bandying; not in the way of oscillation.
204. Under the existing system, in no case will the removal be seen to have any good cause assigned or assignable. Good cause, none: but as to effects, bad effects in abundance; bad in relation to the interest of the community and the ends of justice: thence, herein, as above, termed mischievous: good, at the same time, in correspondent abundance, relation had to Judge and Co., and their particular and sinister interest: and thence in relation to the actual ends of judicature.
205. To return to the here proposed system, and to the good effects which under it are deducible from the removal in question, and would accordingly be deduced from it. Execution, evidence, intercourse;—to one or more of these objects will be found referable everything that can be said of the operations or instruments which have place in judicial procedure.
206.—I.Execution, to wit, of the enactments of the substantive branch, or say the main body of the law: under which head is comprised everything that does not belong to the adjective branch, or say procedure: enactments, really existing in the case of legislation-made, imaginary in the case of judgemade law.
207.—II.Evidence, for the purpose of forming a ground for what is done in the way of execution.
208.—III.Intercourse, to wit, between the judge and all other persons concerned, for obtaining evidence and effecting execution: including the securing the means of such intercourse from the commencement to the termination of the suit.
209.—IV. Giving, to all these several objects, accomplishment, with the minimum of delay, expense, and vexation, to the individuals concerned.
210.—I. First, as to execution. For this purpose, need of removals—of removals in a number altogether unlimited—may have place. In proof of this, a single example may suffice. Judge-shires (as herein proposed) say two hundred. For whichsoever purpose—say satisfaction to a party wronged, or punishment—seizure and sale of defendant’s effects requisite: within any number of these judicial territories, so many portions of these effects may happen to be situated. In this case, even though perfect intercommunication of jurisdiction was to have place between the judge of each judge-shire and the judge of every other; still preponderant convenience might require, that for this purpose employment should be given to the power of the judge of this or that subsequential judge-shire.
Originating judge-shire, or say judicatory, suppose in London: of the effects, one parcel in Liverpool. Of seizure and sale, the purpose might perhaps as conveniently be fulfilled by mandate from the London judge-shire. But, for the discovering what they are, and in whose possession situated, suppose evidence necessary, and that evidence composed of the testimony of a person resident in Liverpool: here, expense and delay in no small proportion will be saved, if it be by a Liverpool judge instead of the London judge that the examination of the Liverpool witness is performed.
211.—II. As to evidence. In regard to evidence, what is desirable is, that, in each individual case, whatsoever evidence the case affords, be obtainable, in whatever part of the globe it happens to be situated; whether in England, Ireland, Scotland, a distant dependancy, or a country under foreign dominion: obtainable with the best security for its completeness and correctness, and with the least delay, expense, and vexation: with least delay, and accordingly from persons and things in any number, at the same time.
212. Good effects in this respect obtainable from removal, and not otherwise, these.—
I. Obtainment of evidence not otherwise obtainable.
213.—II. Obtainment of it in the best shape, that is to say, that which it assumes when elicited in the oral mode: when, otherwise, it could not be elicited but in a less instructive shape; namely, when elicited in the epistolary mode.
214.—III. Obtainment of it from its several sources, namely, persons and things, in any number at the same time, for the purpose of the same suit; and, in each instance, in that one of the two modes which, on that individual occasion, is best adapted to the aggregate of the purposes of justice.
215.—IV. Accomplishing the elicitation, not only with the minimum of delay and vexation; but that minimum laid, in each individual instance, on the shoulders best able to bear it: namely, those of the public at large, in so far as practicable without preponderant evil in the shape of addition made to the expense.
216. For all these several purposes, removal of the suit from the originating judicatory to some other or others, is eventually necessary; that is to say, in so far as the means necessary for the accomplishment of these three several objects respectively in the best mode, fail of being in the power of the originating judicatory, and at the same time are in the power of some other, which accordingly is constituted the subsequential and recipient judicatory.
217. Of the benefit in all these shapes, a necessary instrument will be seen to be the division of the local field of judicature into the above-mentioned compartments, styled on this account judge-shires: extent of each judge-shire limited, in such sort that, the justice-chamber being in the centre, every inhabitant, not disabled by infirmity, may, during the sitting of the judicatory, be in attendance therein, without passing the night elsewhere than at his own home.
218. Mode of elicitation, oral or epistolary: places, the originating or subsequential judicatories, in any number, according to the exigency of each individual case.
219. Eventually subsequent to epistolary, oral elicitation: now for the first time this arrangement: object of it, check upon, security against, falsehood.
220. Where, for correctness and completeness of the whole body of evidence, the confrontation of all persons speaking to the same fact is regarded as necessary,—confrontation accordingly: not otherwise: place, either the original, or some subsequential judicatory.
221. So, order in respect of time of elicitation as between the several examinands: that is to say, co-plaintiffs, if any,—defendants, and other persons at large, in the character of extraneous witnesses.
222. Now, as to retro-transference and retro-reception, or say, return of the suit to the originating judicatory. Demand for it will in some instances have place, in others, not: purpose of it, continuation of the series of operations, by which commencement had been performed.
223. By all these arrangements taken together, minimized will be seen to be the burthen of the expense: that is to say—1. By minimization of the extent of the judgeshire, the quantity of the expense, of journeys and demurrage; 2. By transferring to the letter-post the conveyance of such of the written instruments as are contained within the compass of an ordinary letter, expense of intercourse in so far minimized; 3. By laying on the shoulders of government, and thereby of the public at large, that same expense, together with the whole of the remuneration of all judicial functionaries,—minimized will be the hardship of the burthen, by its being laid on the shoulders best able to bear it. Thus provided for by far the greatest part of the expense: other part, by fines for delinquency on the part of defendants, where there is no individual specially wronged, and for misconduct in the course of the suit, on the part of suitors on both sides: particularly if in the shape of falsehood: always remembered, that the burthen of compensation has the effect, and even more than the effect, of money to the same amount exacted, and applied to the use of the public, or in any other way disposed of.
224. By the evidence-holder, understand the person whose testimony is requisite, or who is in possession of the writing, or other thing which is the source of the evidence. When of this evidence-holder, the residence is at the time in the dominion of a foreign power, elicitation in the epistolary mode may be practicable or not with advantage, according to circumstances. Practicable it will be in so far as, by any means, he happens to be in effect subject to the power of the judicatory: means of such subjection, subject-matters of property, whether moveable or immoveable, in possession or expectancy, certain or contingent, so circumstanced as to be susceptible of seizure by the judge. So, as to subject-matters termed incorporeal, that is to say, rights of all kinds. From the impracticability of making this mode of elicitation available in some cases, no reason assuredly can be deduced, for the not employing it in any case in which it can be made available.
225. In so far as, for any of the above purposes, on any of the above occasions, removal in each of the two modes, with or without retro-transference to and retro-reception on the part of the originating judicatory, has not place,—manifest it will now (it is hoped) be, that the jurisdiction of the whole territory cannot but be, as the phrase is—lame: and in what a multitude of its organs and muscles jurisdiction is under the existing system lame, and to all good purposes impotent, will be manifest to every person, in proportion as his conception of that same system is correct and complete.
226. For extraordinary removal, sole case this:—By a judicatory, or by a tribunal of exception, cognizance taken (suppose) of a suit, which lies not within its competence; here will be a case—either for the extinction of the suit altogether, or for the removal of it into the sort of judicatory, to which (those exceptions excepted) cognizance is given of all sorts of cases. Tribunals of exception these:—Military judicatories for the establishment of appropriate discipline among military functionaries, in both branches—land branch and sea branch—of that service: ecclesiastical functionaries (in a country in which an ecclesiastical establishment has place) for the establishment of discipline among ecclesiastical functionaries.
227. Removal in both shapes will, in some cases, of necessity, have place in the same judgeshire; for example, as between the judge principal and judge depute,—in case of death, simple transference: in case of temporary inability through illness—perhaps simple transference—perhaps oscillation or bandying, may be the more eligible course.
Only that it may not be supposed to be overlooked is this need mentioned.
228. Enter now the existing system. Short account of it, as to this matter, this:—The purposes for which,—the occasions on which, so as to be conducive to the ends of justice—say in a word useful,—the removal will take place, have been seen. Under the existing system, for none of these purposes, on none of these occasions, has it place: on none but where (the rare case—that of applying a check to usurpation alone excepted) it is worse than useless.
229. Intricate is here the complication, vast the labyrinth constructed by it: to let in upon the whole expanse the full light of day, would be an endless enterprise: only, by way of sample, upon a hole-and-corner or two, can a few rays be endeavoured to be cast.
230.—I. Sample the first. Mode of established removal, the simple transference mode. 1. Class of cases and suits, that called criminal. Species of cases, that called by the nonsensical term, felony: thus denominated from the sort of punishment attached to it: nonsensical, because no idea does this denomination afford of the nature of the evil; nor therefore of the cause for which it is thus dealt with.
231. Course taken by the suit in these cases, this:—
Case the first:—Judicatory in which the suit is tried, the original common-law judicatory, having for its seat, in a country cause, the assize town.
I. Originating judicatory, that of justices of the peace, one or more, acting otherwise than in general sessions, as above.
II. First recipient judicatory, the grand jury for the county, sitting at the place where the trial is about to be performed.
III. Second and last recipient judicatory, that in which the trial is performed, as above. In this case, it is in that same town that the judgment is pronounced. Place of execution varying; but no return in any case to the originating judicatory.
232. Note that, in the case of homicide—a crime belonging to this same class of felony—an originating judicatory, taking cognizance antecedently to the above, is the court called the Coroner’s Inquest: judge, the coroner: with a jury called the inquest jury.
233. Of these removals, note now the consequences in regard to evidence. Short account this: Shape in which the evidence is elicited, more or less different in all these cases; the mass elicited on the first occasion made no use of either in the second or the third: the mass elicited in the second made no use of in the third: the two first masses—after the expense, labour, and time, employed in the elicitation of them, thrown away.
234. Even of this third mass no use is made for any purpose subsequent to the verdict. For, being elicited in the oral mode, it is not committed to writing, by authority;—only by accident, that is to say, by this or that individual, by whom the profit on publication is looked to as affording a sufficient return for the labour and expense of minutation.
235. In one class of cases, the suit does receive its termination in the same judicatory in which it has received its commencement: these cases are of the number of those consigned to the cognizance of a justice of the peace acting singly, or two or more in conjunction, out of general sessions. Now then, supposing the judicatory aptly constituted, why (except in the cases provided for under the herein proposed system as before) why should it not so do in these, and, in a word, in all other cases? And where is the case, in which the judicatory should be otherwise than aptly constituted?
236. In the originating judicatory—namely, that of the justice of the peace acting singly,—sometimes a part only of the stock of evidence which the individual can afford, will have been elicited—sometimes the whole of it, as it may happen; but where the whole of it does happen to be elicited, the suit is not the less sent in to those other judicatories.
237. Moreover, where, after the whole of the evidence which the suit affords has been heard, including the evidence on the defendant’s side,—be this evidence in its own nature ever so satisfactory, and as against the defendant conclusive, yet thereupon, when the suit has been transferred to the secret judicature,—the grand jury, it is liable to be, and not unfrequently is, decided the opposite way, on evidence heard on one side only: meantime evidence-holders have had from a day to half a year given to them,—to go off of themselves, or to be bought off,—and, in prison, the defendant, guilty or not guilty, that same time, for contaminating, as the phrase is, or being contaminated, or both: if not guilty, there to moan under the oppression, thus, for the benefit of Judge and Co., exercised on him: and, whether he be guilty or not guilty, the country is made to suffer under the expense of keeping him in a state of forced idleness.
238. Cases in which removal in the oscillation or bandying mode is employed, these:
All suits termed civil, commenced in any one of the three common-law Westminster-hall courts.
239. In Westminster Hall, they take their commencement without elicitation of evidence: their commencement, viz. in the office of a clerk: mode, the mechanical mode, as above; the judges not knowing anything about the matter: applications, incidental and accidental, excepted; for example, for leave to plead, or for putting off the trial.
240. For elicitation of evidence, in a country cause, off goes the suit to an assize town, there, as the phrase is, to be tried; to wit, by the elicitation there performed, by a judge dispatched thither from one of the Westminster-hall courts, with a petty jury.
241. The trial performed, back it comes to the judicatory from whence it had emanated; and there it is that, in the mechanical mode as above, it receives judgment.
This done, then back again it goes to the same county for execution; but, for execution, the office it goes to is—not any office belonging to the court in which it originated, nor that in which the trial was performed: it is the office of the sheriff of the county in which the suit was tried.
242. Such is the operation of the judgment, when it has for its subject-matter, a person, or a thing moveable or immoveable: whereupon the officer causes hands to be laid upon the person or the thing; and, in the ordinary course, does by that same person or thing what by the judgment he has been bid to do. But, in some cases, the suit has for its subject-matter nothing on which hands can be laid;—nothing but a fictitious entity—an incorporeal thing—to wit, a right, or an obligation; in which cases, as execution consists in the extinction of the obligation or the right, words contained in the judgment suffice—words, without acts and deeds, for the performance of it.
243. Now for removal upon an almost universal scale—removal by certiorari.
Exceptions few excepted, from all courts a suit is, at any stage, removable into the King’s Bench. Instrument of removal, a writ styled in the Judge and Co.’s dialect of the flash language, a certiorari: in the language of honest ignorance, a sisserary: witness the threat, “I’ll fetch you up with a sisserary.”
244. Eminently mischievous to the community at large, correspondently beneficial to Judge and Co., is this same monster. Mischief it does in two ways:—1. By its operation when not killed; 2. By its dead carcase when, by a clause in a statute, killed. Of such as are let live, the effect is—from a less expensive, and comparatively to Judge and Co. unprofitable, judicatory, to send up the suit to a more expensive and more profitable judicatory: as to the carcases, they are those of the certioraris, killed in embryo, or endeavoured so to be; that is to say, in and by every statute, by which additional jurisdiction is given to a justice of the peace, or other summarily acting judicatory. In this case, one of two things:—either, by the insertion of the clause by which the death is produced, so much rubbish is shot down into the statute-book, or else danger of inefficiency is left by the non-insertion of it.
Note by the bye, that in every such statute, this is but one of a string of efficient causes of inefficiency, which must be thus dealt with, or the like effect will follow.
245. Yes, endeavoured to be: for (as lawbooks show,) not in every instance has the endeavour been successful: on this occasion, as on all others, in comes the established habit of Judge and Co.: when a clause of an act of the legislature is brought before them, they pay obedience to it, or run counter to it, as they feel inclined: moulding the law, is among the phrases on this occasion employed.
246. Now for the instrument and document, which, in case of removal, whether established or incidental, is the corporeal subject-matter of this same operation; the suit being the incorporeal subject-matter of it. Of this instrument, the proper contents will be composed of a statement, or say history, of the several proceedings, carried on in the course of the suit: proceedings,—that is to say, appropriate operations performed, and written instruments framed and issued or exhibited: contents, for various purposes, proper: for the purpose of appeal, and in so far as that is in contemplation, altogether indispensable.
247. Of this history, by far the largest, the bulkiest part, will consist of an account of the evidence: to the evidence which by this means, for this purpose, has, in the course of the suit, by the correspondent operations been elicited in the word-of-mouth mode:—the expression given to it by the pen, by the taking it down, as the phrase is, or in one word, the minutation of it, will constitute a written instrument.
248. Hereupon, in the instance of each individual suit, will arise two questions.—1. Shall the minutation be performed? 2. When it is performed, shall the result be, for any and what length of time, preserved? To both these questions, the proper answer will depend—upon the proportion between the profit in the way of use elicitable from the document, and the loss composed of the expenses: always understood—that wheresoever appeal is in contemplation, preservation will of course not be less necessary than creation.
249. As to all matters besides the evidence, so small in comparison will in every instance be the bulk of them, that of what is necessary to either of these operations, of no part can the expense be grudged.
250. Obvious as may seem these observations, not so obvious are they as to be superfluous: for by them will judgment have to be pronounced on the practice of the existing system in relation to the subject-matter of them.
251. Enter now accordingly, the existing system. To the difference between courts of record and courts not of record, prodigious is the importance attached by it. Mountains, in the survey taken of them, the courts of record: mole-hills, the courts not of record.
252. Now as to the treatment given by the two sorts of courts to the mass of evidence belonging to the suit.
In the record of the courts of record, not a syllable of this same evidence is ever inserted: and in particular, in those of the Westminster-hall courts—the King’s Bench, the Common Pleas, and the common-law side of the half common-law, half equity court—the court of Exchequer.
253. In the records of the courts not of record, every syllable of the evidence elicited. Witness—1. The Chancery court: including its subordinate branches, the Vice-chancellor’s and the Master of the Rolls’ court;—2. The courts held by the bankruptey commissioners, and which are also courts subordinate to the Chancellor’s court;—3. The equity side of the Exchequer court.
254. Between the real state of things, and the pretended state, as intimated by the denomination thus given,—whence this seemingly strange difference? Answer—By the common-law court it is that this nomenclature was framed. Courts to which the depreciatory denomination was attached by them, the shops of their rivals in trade: rivals, with whom for a length of time they had fierce battles; till at last an accommodation was come to:—of course, at the expense of customers, and of those who should have been, but by the expense were kept from being, customers.
255. Of the particulars contained in the instrument styled the record, as framed in the courts self-styled courts of record, what shall be the account given? Short account this:—
I. Written pleadings, which ought not to have been exhibited.
II. Mendacious assertions, by word of mouth and in writing, which ought not to have been uttered.
III. Delays such as have been seen, which ought not to have been made.
IV. Ulterior delays—fruits, such as have been seen, of the precipitation established.
V. Products, of the blind fixation as above—days appointed, for operations, which it was foreknown could not on those several days respectively be performed.
VI. Operations, which, in pursuance of the system of mechanical, vice mental judicature, are stated as having been performed by the judge, though, if performed at all, it is not by him that they have been performed.
VII. Removals made, which ought never to have been made.
256. Prefaced the whole by a fabulous history of apparitions: statements asserting appearances as having been made by unhappy defendants (and in these courts what defendants are not unhappy?) who from beginning to end never did appear: they not knowing, nor having it in their power to know, what to do, had they appeared: and knowing but too well that, had they appeared, their appearance would have been of no use.
257. As to the written pleadings,—note, that though otherwise than in an eventual, indirect, and disguised way, as above, the effect of evidence is not given to them,—not unfrequently more voluminous are they than the evidence is, or would have been if properly elicited.
258. As to suit and record taken together,—under the existing system, general conclusion, as intimated at the outset, this: To any useful purpose, removal none: to purposes worse than useless, removal in abundance.
Device the Eleventh—Decision on grounds avowedly foreign to the Merits.
☞ For the matter belonging to this head, reference may be made to the Full-length Petition.
Device the Twelfth—Juries subdued and subjugated.
☞ For the matter belonging to this head, reference may be made to the Full-length Petition.
Device the Thirteenth—Jurisdiction split and spliced.
In the Full-length Petition (pages 482 and 483) have been seen, the sorts of courts, splinters from the one original Aula Regis, each with a different scrap of jurisdiction. Number, not less than thirteen: without reckoning others which in process of time came to be superadded. Number of judges in these respectively, from one to an undefinable greater number: species of functionaries, acting in various ways in subordination to the judge, in one alone of these same thirteen sorts of courts (as per Full-length Petition, page 400) more than twenty; not to speak of the other sorts of subordinates acting in the other sorts of courts: all these species, instead of the four or five, which, in every court would (as per page 491) with the addition of no more than two or three others in some special cases, be sufficient.
262. That confusion may be still worse confounded, behold now a sample of the diversification which, in these same judicatories with their additaments, the denomination given to the character of judge has been subjected to: the function belonging to that character being disguised, under and by most of those several denominations: a sample only—not a complete list: for the labour of making it out would have been unrequited, and unendurable. Here they are—
1. Lord High Chancellor.
2. Lord Keeper of the Seals.
3. Lord Commissioner of the Great Seal.
4. Master of the Rolls.
6. Lord Chief-justice of the King’s Bench.
7. Lord Chief-justice of the Common Pleas.
8. Lord Chief-baron of the Court of Exchequer.
9. Puisne (pronounced puny) Justice of the King’s Bench and Common Pleas.
10. Puisne Baron of the Exchequer.
11. Master in Chancery.
12. Master of the Crown-office.
13. Prothonotary of the Common Pleas.
14. Remembrancer of the Court of Exchequer.
15. Commissioner of Bankruptcy.
16. Commissioner of the Insolvency Court.
17. Justice of the peace.
18. Chairman of the quarter-sessions of the peace.
20. Common Serjeant.
21. Commissioner of the Court of Requests.
22. Privy Counsellor.
23. Chancellors of the duchy of Lancaster, of the bishoprick and county palatine of Durham.
24. Vice-chancellor of a University.
25. Lord Delegate.
26. Dean of the Arches.
27. Chancellor of an Episcopal Diocese.
28. Surrogate of a Diocese.
29. Commissary of an Archdeaconry.
30. Assistant-barrister (in Ireland.)
31. Grand Juryman.
32. Constable of the night.
33. Annoyance Juryman.
35. Steward of Manor Court.
36. Warden of the Stannaries.
37. Warden of the Cinque Ports.
38. Vicar-general of the Preachers. (Quere, whether judicial?)
39. Official Principal of the court of Arches.
40. Master of the Prerogative Court.
41. Master of the Faculty Office. (Quere, whether judicial?)
42. Official principal to various deaconries and archdeaconries.
43. Commissioner of the Hackney Coach Office.
44. Commissioner of Excise.
45. Commissioner of the Customs.
46. Commissioner of the Audit Office.
47. Auditor-general (of Greenwich Hospital.)
48. Commissioner of a Court of Claim.
263. As to the confusion in which the enumeration thus made of them is involved,—so far from being a blemish, it may be stated as a merit: serving, as it does, to render the portrait the more appropriate and perfect a representation of the original.
264. Behold another evil, produced by the jurisdiction-splitting, and not brought to view in the full-length petition. This is—the all-pervading denial of justice, produced by the exclusion put upon one or other of the two remedies which wrong in every shape calls for: namely, the satisfactive and the punitive. Modes of procedure, the fissure makes two:—the one styled civil, the other criminal: in and by the civil you may demand the satisfactive; in and by the criminal, the punitive: in some cases, you may have the one; in other cases, the other: but with scarce an exception, both together,—either by one and the same suit, or by two different suits,—you cannot have. As to courts,—the satisfactive remedy, you are admitted to demand at the hands of either of two courts—the King’s Bench or the Common Pleas; not to speak of the Exchequer: the punitive, you are not admitted to demand in more than one of these two courts, namely the King’s Bench. Moreover, there is another sort of court in which in some cases you may demand the punitive, namely the provincial court—the quarterly-sittings justice of peace court: whether, after obtaining in this court the punitive remedy, you can take your chance for obtaining in one or other of the two metropolitan courts, the satisfactive,—say who can; never yet (it is believed) has the experiment been made. Moreover, from this local court, the suit may, without reason assigned, by means of a sort of a crane termed a certiorari (as per 244,) be raised up into one or other of these two higher and more expensive courts: and this, either by the author of the wrong, or by you—the party wronged.
265. Of this severance, by co-operation and a sort of tacit concert between Judge and Co. on the one hand, and the rest of the ruling and influential few on the other,—advantage was taken, to give additional strength to their power of exercising depredation, as well as oppression, at the expense of the subject many. By the high price put upon the chance of receiving the article at the hands of Judge and Co., the satisfactive remedy, in so far as not obtainable but by procedure in the regular mode, was effectually denied to the vast majority of these same subject and oppressed many. So far as dependent upon law, these that were unprivileged were thus laid completely at the mercy of the thus privileged classes, in all cases to which the application of the punitive remedy did not extend itself.
266. Dear, it is true, was the price; still, however, in the eyes of a large proportion of those to whom the privilege was thus granted, the advantage was and is worth the purchase. By each man the privilege is possessed, and, whether exercised or no, exercisable at all times, all his life long, and to a certainty: whereas the inconvenience of paying for it, namely by the expense of going to law, or being at law,—is a danger, the magnitude of which is, by each man’s confidence in his own good fortune, concealed from his regards.
267. This being the imposed price,—how happened it that the intended victims were not deprived of the benefit of the punitive remedy, as well as of that of the satisfactive? Answer—This they could not be, without an all-comprehensive sacrifice of all security against wrong,—a sacrifice in which the sacrificers themselves, as well as the intended victims, would be included. To the security of the privileged classes it was necessary that not only they themselves should be preserved from depredation and oppression altogether, but that the unprivileged classes should be preserved, as far as might be, from depredation and oppression at the hands of one another: otherwise production would cease; and with the subject-matter of depredation, the power of exercising it. To this purpose it was therefore necessary, that application of the punitive remedy should, in a more or less considerable degree, be kept free from the clogs, by the strength of which the satisfactive remedy had been rendered unattainable to the unprivileged and devoted many.
268. How to effect the severance was however the difficulty. Of this difficulty, the primeval penury, brought to view at the outset of the full-length petition, had been certainly one cause: the want of sufficient discernment and talent, perhaps, another. Whichever were the case, so it happened that the machinery employed in the application of the punitive remedy, was no other than that employed in like manner upon the satisfactive: whence it happened, that the load of factitious delay and expense, laid upon the one, pressed also upon the other.
269. Without the fiat of a grand jury, for example, captain of the prisoner could not take place; and, except at the metropolis, no grand jury sat, but at the assizes: and the assizes were not held oftener than twice a-year in any county, nor than once in some counties; nor in any county did they last more than two or three days: and, suppose the caption effected, trial could not take place till the next assizes. What, as to offences, were the consequences? Abundant as they were upon the continent, criminal offences operating by force, were in England in still superior abundance. In the time of Henry VI., Fortescue, then chancellor, takes notice of this superiority, and makes it matter of boast. In the reign of Henry VIII. (as may be seen in Barrington’s Observations on the Statutes) no fewer than 72,000 individuals suffered death by hanging,—about 2000 a-year upon an average: this, out of a population not half so great as at present.
270. Of the marriage of Queen Mary with Philip of Spain, one consequence was—the putting England, in this respect, upon a level with the continent. Rome-bred was the species of law, by which the continent was then, as now, principally governed: and, under Rome-bred law, persons accused of crimes might be apprehended at all times. By a statute of Philip and Mary, this power was given to justices of the peace. In the case of a criminal suit, thus was caption, with commitment accelerated: still trial remained at an undiminished distance. But, how inadequate soever to the purpose of deterring others,—commitment made in this mode would, of itself, so long as the incarceration continued, give effectual security as against future offences on the part of the same delinquent: for, while a man is in jail, he cannot commit crime out of it. Sagacity neither was nor is wanting to perceive this incontestable truth.
271. With this arrangement, the contracting parties—Judge and Co. of the one part, and the rich and powerful of the other part—were, and continue to be, well satisfied. True it is, that upon this plan, this so regularly and uniformly applied lot of suffering of about twenty-six weeks, or fifty-two weeks, applied without regard to quality of guilt, is,—when, in consideration of quality of guilt, a few weeks, and not more, ought to be suffered,—applied in addition to those few weeks. True it is, moreover, that it is applied to the innocent who ought not to suffer at all. True it is, moreover, that all this while the innocent part of the thus forcibly mixed company, thus dealt with, are (as the phrase is) contaminated; and the guilty are occupied in contaminating as well as in being still further contaminated. “But what care I for all this?” says to himself noble lord or honourable gentleman; “none of it can ever fall upon me or any friends of mine. No danger is there of our being thus taken up, and if we were, we should be bailed of course. Then, as to the contamination, this could not be put an end to without innovation; and that would be out of the frying-pan into the fire. Besides, there is a satisfaction in having thus to talk of contamination: as it is the poor alone that are exposed to it, it gives a zest to the pleasure we feel in the contempt we pour upon them; it magnifies the great gulf which is fixed between them and us.” Such is the almost universally established sentimentality and correspondent language in the upper regions: as if by far the most maleficent of contaminations were not that, which (as hath over and over again been demonstrated) in these same upper regions, and in particular, in the part occupied by Judge and Co. has its source.
272. Thus it is, that over and above the power of depredation, as well as oppression, which (from the nature of things) the rich and powerful, as such, unavoidably possess, at the expense of the poor and helpless,—they possess this vast additional power derived (how indirectly soever) from positive law.
273. By this confederacy it is, that the most powerful obstacle to law reform is constituted. Judge and Co. having, by the price put by them upon what is called justice, placed the satisfactive remedy out of the reach of all but the favoured few,—noble lords and honourable gentlemen run in debt, under the assurance of having it in their power to cheat creditors: and thus by the higher orders are the lower orders spoiled, as by the Israelites the Egyptians. So completely, by a mixture of pride and cupidity, is all sense of shame capable of being extinguished, that right honourable and noble lords have been heard to say, and without contradiction to insist, that for small debts, in this case, there ought to be no remedy. Why no remedy? Because affording a remedy against injustice encourages extravagance: as if, with this or any other encouragement that could be given to extravagance, the extravagant could ever be the majority; as if, without consent on his part, wrong in a pecuniary shape could not be done to a man in a variety of ways; as if dishonesty were not still worse than extravagance; as if, whatever were the amount, the loss of what is due to him were not a greater evil to any man, than the payment of what is due from him to another is.
274. In pursuance of this same policy, property, in a shape in which noble lords and honourable gentlemen have more of their property than in all other shapes put together, is exempted from the obligation of affording the satisfactive remedy—in a word, from the obligation of paying debts, while property in these other shapes is left subject to it. Noble lords or honourable gentlemen contract debts, and instead of paying them, lay out the money in the purchase of land: land being exempted from the obligation of being sold for payment, creditors are thus cheated. Noble lord’s son is too noble, honourable gentleman’s son too honourable, to pay the money, but not so to keep the land.*
275. For the like reasons, mortgages and other charges upon land are not to be, in an effectual way, by registration or otherwise, made knowable. Why? Because, if they were, money, of which it were known that if lent it would not be recovered, would not be sent; extravagance would thus be lessened; swindling, as above, would thus be lessened; and, in a country in which a man who is rich and not honest receives more respect than a man who is honest and not rich,—obtainment of undue respect for opulence not possessed would thus be lessened.
For Device XIV.—Result of the fissure—Groundless Arrests for Debt.—See the Full-length Petition.
277 or 80.Supplement to Device V. Oaths necessitated. (Full-length Petition, pp. 454 to 467. Abridged Petition, p. 516, art. 79.)—Consummation of the mass of evil shown to be produced by this device as above. By this one instrument, evil is capable of being produced, more than by all others put together. For by it, besides the evil produced by itself, eternity is capable of being given to the evil produced by all those others.
278 or 81. Even without this addition, sufficient for any ordinary appetite for the pleasure of maleficence, should be the power of the singly-seated absolutist. Infinite, however, is the addition, which the power of imposing oaths is capable of making to it.
279 or 82. Extirpation of all heretics—extirpation of all liberals,—conceive a Don Ferdinand, conceive a Don Miguel, bent upon procuring for himself these two gratifications—either of them, or, which would save trouble, both together:—for the accomplishment of these objects, added (suppose) the obligation of making re-application of those tortures, the application of which used to be common for some of these same purposes.—Nothing can be more easy. Two formularies for this purpose are already to be had from geography and history. He goes to work thus: An appropriate oath of the promissory kind is framed. All public functionaries take it: functionaries, administrational—judicial—military. All schoolmasters and schoolmistresses take it: they administer it—all of them—to their respective boarders and scholars. All husbands administer it to their wives: all parents, to their children, who by the form of it stand engaged to transmit it to their children, and so on to the latest posterity. Behold here a sort of estate tail, for the barring of which no fine, no recovery is available.
280 or 83. Dangerous enough in an absolute monarchy, of which there are so many examples,—it is still more dangerous under a pure aristocracy, of which there is one example, and under that composed of monarchy and aristocracy, of which there is another example. A monarch has caprices: an aristocracy has no caprices. By the monarch of the day, the oath imposed one hour, may be taken off the next hour. The oath imposed by the monarch of one day may be taken off by his successor—the monarch of the next day. Under an aristocracy, relief has no such chance. Long before the aristocracy-ridden monarchy of England had begun to lighten the yoke of religious tyranny on the necks of the Catholic subjects, Austrian monarchs had nearly removed it off the necks of their Protestant subjects.
281 or 84. To the extent of the evil produced by this instrument, addition may be made day after day: and, as to duration—if by it the existence of the evil can be secured for two days together, so may it be to the end of time.
282 or 85. Those, who are so fond of it, when employed, in giving support to their own sinister interests or prejudices, on one part of the field of law,—might do well to think, how capable it is of being employed against those same interests or prejudices, on another part of that same field. A radical, who wishes to see it continued to be employed against catholicism, should have considered how capable it is of being employed against radicalism. Against radicalism? Yes: or against any the smallest melioration in the form of the government.
283 or 86. Lord Castlereagh and Lord Sidmouth, when they enacted the Six Acts, should, after making a few more such acts—whatsoever were necessary to complete their plan—have taken this method of giving perpetuity to it. Without touching the invaluable coronation oath, an amendment tacked to it would have done the business at once. The heavier the yoke thus laid on the necks of the subject many, the more exquisite would then have been the tenderness of all royal consciences.
284 or 87. Will it be said—“No: formidable as the instrument is, the application made of it will never be carried to any such lengths?” Let him that says so, say—at what point it is that the application will be sure to stop. Let him say—at what point the appetite for power will be sure to stop. This point found, let him say—whether, after having reached that point one day, it may not go on the next.
285 or 88. Observations these—which, by their importance, may, it is hoped, atone for the irregularity committed by the insertion in this place given to them.
[* ]Ch. XXVII. might correspond to a certain extent with the remarks: perhaps the act meant is 30 Geo. II. c. 24.—Ed.
[* ]By 3 & 4 W. IV. c. 104 (29th Aug. 1833) freehold and copyhold estates were rendered liable for simple and contract debts.—Ed.