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CHAPTER VII.: SECOND DEVICE—TRIBUNALS OUT OF REACH: OR, SWALLOWING UP THE INFERIOR COURTS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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SECOND DEVICE—TRIBUNALS OUT OF REACH: OR, SWALLOWING UP THE INFERIOR COURTS.
If justice he necessary in one place, it is little less so in any other: if justice be necessary to one set of men, it is little less so to another.
So obvious is this truth, that, upon the first settlement of every country, judges, with competent authority, distributed all over the country in courts under some denomination or other, as little distant from each other, and thence as numerous, as the state of the country in respect of wealth and population will admit, are, under the natural system, an obvious and general arrangement. To disturb it, requires, as under the fee-gathering system, power, perverted by the impulse of sinister interest to private purposes.
In every country in which the technical system has established itself—in every country, to an extent commensurate with the power possessed under that system by the superior courts, established (as they naturally would be) at the fountain-head of power, as close as possible to the ear of the sovereign,—to strip the local, distant, and consequently inferior and weaker courts, of as much of their jurisdiction as was possible, has of course been the constant aim of the superior, the metropolitan, courts.*
But in no country have the enterprises of this most cruel species of robbery been so successful as in England.
Not to speak of bye-courts established for particular purposes,—not only before, but for ages after, the Norman conquest, every county, every hundred, had its court, sitting for general purposes.
If in any place justice be necessary in respect of any one sort of cause, in that same place justice cannot be much otherwise than necessary in respect of every other sort of cause. If, then, of a court sitting in any district (a hundred for example,) the whole time be not taken up by causes of a particular description, nature and utility combine in giving to (or rather in not taking from) that same court, the power of administering justice in causes of every other description. To so simple an arrangement, limitations may be made by power, actuated by sinister interest or caprice, but cannot, unless for some very cogent and not at all obvious reason, be warranted by utility and justice. Between jurisdiction and jurisdiction, geographical lines of demarcation are prescribed by utility, rising to the degree of necessity. Metaphysical lines of demarcation (except in here and there a particular case, indicated by special circumstances) are the result of a compromise between rapacity and rapacity, fighting in the dark.
Under the natural system of zoological economy, spider devours spider, for want of flies. Under the technical system of procedure, judge, give him time and power, swallows up judge. If the hundred court—if even the county court, once so efficient and so exalted in power and dignity, with its carl and its bishop, its temporal judge and its spiritual judge, can still be said to have existence, it is scarce otherwise than in name: it is as the shell of the fly, which, after having been sucked by the spider, is sometimes seen flittering in the web.
In a general point of view, the cause of this voracity is as obvious as the fact is notorious. As to the details of the operation, and how it happened that the success of the enterprise was so much more complete in England than anywhere else,—the investigation would be curious, but here there is not sufficient space for it: and if not history (for history requires honesty,) materials at least for history are not wanting in the books.
Of the mischiefs resulting from this distinction, little need be said.
On the one hand, anarchy, failure of justice, the equivalent of constant misdecision to the prejudice of the plaintiff’s side:—on the other hand, factitious delay, expense, and vexation, and in general with an increased chance of misdecision to the prejudice of either side.
From extinction of local courts, comes enlargement of the geographical field of jurisdiction of their devourers, the metropolitan courts. Thence increased length of journeys and of demurrage—obvious and irremediable causes of increased delay, vexation and expense.
In each several instance, the burthen sustained, is it sustained by both parties?—then comes the collateral inconvenience. Does the plaintiff (that is, the injured individual who but for the abuse would have been plaintiff) sink under it?—then comes the failure of justice. Is if the defendant who sinks under the burthen?—then comes misdecision to the prejudice of the defendant’s side: a mischief on that side, correspondent, and not inferior to, the mischief of failure of justice on the plaintiff’s side.
If the mischiefs of this devastation are obvious and incontestable, the advantages aimed at and reaped by the authors are no less so.
1. Making increase of business. Of the whole number of causes that would have gone to the local and little district courts, it was but a part indeed, and that a small part, that could find its way to their metropolitan devourers; the remainder would evaporate in the shape of failure of justice. But no grain of profit was too minute to be stooped for; nor any mischief too great a price to be paid for that minimum of profit. Witness the shillings, the splendid shillings, the price of delay under English equity;* witness other delays without number, with their respective purchase-moneys.
2. Making pretences and means for the exclusion gradually put upon the parties in all cases.
The more remote the province, the more intolerable the vexation of journeys and demurrage to and from the head seat of judicature: especially in a state of society which afforded neither roads, nor carriages, nor inns, nor lodging-houses, nor security against robbers. But, the more intolerable the burthen of attendance, the more anxious the solicitude to obtain permission for the employing of professional substitutes: who, when once admitted for the relief of distant suitors, soon found means to render it as impracticable to suitors to do their business in Westminister Hall without the help of lawyers, as it is to stockholders to make transfers at the Bank without the help of brokers.
Besides; it would be a hardship to send to a man at the Land’s End to come and be heard at Wesminister; therefore, so it would to send to a man in Palace-yard, or to put a question to him in court, if he is there already. This logic impresses conviction on learned minds. To come and he heard is the greatest of all hardships to a man: understand, if it is about business of his own; for if it is a business in which he has no interest, he being but a witness, there is no hardship, or at least none worth thinking about.
Without this advantage, the other would in comparison have been little worth: the system of procedure pursued would have been the natural system: and, under that system, business is scarce worth having.
3. Saving technical judicature from the odium of comparison, by the extinction of natural judicature.
This advantage came in gradually, as the technical system, with its ever-increasing mass of delay, vexation, and expense, took place of the natural, in the superior courts. In the local courts, the mode of procedure would of course continue, if not purely natural, at any rate, in comparison, undilatory, unvexatious, unexpensive.†
The motives being so strong, and power being adequate, means could not be deficient: the mode was the only object that presented itself to reflection or choice. In the choice there was no difficulty. Make the recourse of the suitor (that is, of the plaintiff) to the local courts, vain and useless, productive of nothing but vexation and expense,—he will either sink under the injury, without seeking for justice anywhere, or he will seek for it in the great courts. Removal, in all its shapes, proffered itself, and was accepted, for this disastrous service.
Make the burthen of attendance in the great courts intolerable, the suitors on both sides will fly for relief into the arms of their natural enemies, the professional members of the law-partnership, raised up, to bring in custom, by the head and most active partner, the judge.
John Poor and Thomas Rich live both in Cornwall. Rich is able to bear the charge of journey and demurrage to London; Poor not. From the Cornish courts, a defendant has the power of removing the cause to the London courts. What chance has Poor for justice against Rich? None whatever. Rich removes the cause from London, and Poor gets his labour for his pains.
In this way, nineteen injuries, perhaps, out of twenty, are shut out from remedy. Who cares? Judge and Co. get their profit out of the twentieth.
The indigent of all classes are thus reduced to a sort of slavery under the opulent: nineteen persons put out of the protection of the law, that two may be squeezed by and for the benefit of the lawyers.
Removal is either absolute, or not without leave: leave, viz. of the court ad quam, the court into which the removal is proposed to be made.
Obligation of applying for leave, is in appearance a security against oppression—in reality an aggravation of it; a cause tried, to know whether another cause should be commenced; the yoke doubled on pretence of lightening it.
Under the fee-gathering system, sham securities* of this sort are as easy to find, as it is difficult to find real ones. The prime security is the appearance of the parties at the outset coram judice: and, to bereave the suitor of that security, nothing that power and industry could do has been left unemployed.
In general, and after allowance made for a few narrow exceptions,† there can be no sufficient reason for taking any sort of cause out of the jurisdiction of the local court, in any other way than by appeal.
If there were any such reason, what should it be? Value of the matter in dispute too great to be entrusted to such inferior, and comparatively untrustworthy, hands? But the remedy, and the sufficient remedy, lies in appeal, not in refusal of cognizance. When the party, who knows the circumstances of the cause, and against whom the decision is, sees no reason to be dissatisfied with it,—is it for the legislator, or the superior judge, who knows nothing about the individual cause,—is it for these strangers, to be dissatisfied with it?
From whence is it concluded that the judge is unfit to be trusted with a sum above the mark—he whose fitness for judging of all sums up to the mark is assumed?
By delay (it is true) injustice equal to any producible by misdecision—equal, and even superior (since, to the mischief of antecedent delay, vexation, and expense, may come to be superadded the mischief of ultimate misdecision,)—injustice, especially to the prejudice of the plaintiff’s side, may come to be produced; and, to this mischief, an appeal, which supposes decision, applies no remedy. But, though it lies not within the reach of that same remedy, neither is injustice by delay, any more than injustice by decision, without its remedies; nor are those remedies less efficient in this than in that other case.
[* ]In Scotland, the course of modern legislation has tended to devolve on the local courts of the Sheriffs, several very important branches of jurisdiction, formerly peculiar to the Court of Session. See especially 1 & 2 Vict. c. 119, and 2 & 3 Vict. c. 41.—Ed.
[* ]See Chap. IV. of this Book (supra, p. 217.)
[† ]Meantime, however, the exigencies of society had given birth to new courts, in the practice of which the natural mode of proceeding was revived; in particular, the courts filled by Justices of the Peace, acting out of general sessions at their own houses. Courts pursuing the ends of justice, presented an odious and formidable object of comparison and standard of reference to courts pursuing the ends of judicature. The precedent was alarming: they could not be too anxiously kept under, and discountenanced.
[* ]In the case of an offence prosecutable by information,—motion for leave to file an information; motion for a mandamus; motion for a prohibition; motion, in some cases, for a certiorari (a writ to remove a cause from an inferior to the superior court,) though in others, perhaps in most, the removal by certiorari, is ad libitum. No new trial without motion: though in many cases it might be grantable to great advantage by the judge, viz. immediately on hearing the verdict, and without farther argument.
[† ]Example of exceptions proposable, with their grounds and reasons:—