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CHAPTER VIII.: THIRD DEVICE—BANDYING THE CAUSE FROM COURT TO COURT. - 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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THIRD DEVICE—BANDYING THE CAUSE FROM COURT TO COURT.
Appeals and removals have no place but by the act, or with the concurrence, of a party in the cause. The sort of transfer here in question requires no such concurrence, nor any spontaneous act on the part of anybody. At a particular stage of the cause, it takes place, as it were, of itself, and without any fresh expenditure of human will or reason: it takes place, as, in a piece of clock-work, sound succeeds sound, by a pre-established harmony among the parts of the machine.
Of this species of transmission, the possible modifications are plainly infinite. In Scotch judicature, the actual ones observable in a single court want not much of being so. Throughout the demesne of the technical system, other exemplifications, in unhappy abundance, may be found.
The principal of them will be found comprisable under the following description:—One court to decide, another court to collect the evidence on which the decision is to be grounded. For illustration, the following may suffice:—
1. Practice of the English superior common-law courts, on indictments for offences not felonious:—The cause bandied to and fro between the court of King’s Bench and the court of Nisi Prius.
2. So in informations, in criminali.
3. In civili, uniform practice of the King’s Bench, Common Pleas, and common-law side of the Exchequer:—The cause bandied between these courts respectively, and the courts of Nisi Prius and assize: projected from the metropolis by a centrifugal, and drawn back again by a centripetal force. Fragments of causes, projected now and then under the name of issues from the court of Chancery and the equity side of the Exchequer to a common-law court, and then re-absorbed, are to the others what comets are to planets.
4. Ordinary practice of the equity courts:—The collection of the evidence turned over (or rather turned down) in London, and within twenty miles, to a clerk in the Examiner’s office, and beyond that distance to one or two attorneys on each side, commissioned in each cause for that one cause.
5. Practice of the ecclesiastical courts:—Transmission and retro-susception, as in the equity courts.
6. Practice of the Admiralty courts: much the same.
7. In Scotch judicature, the practice of the Court of Session, on this ground, forms a system of itself. The cause a very shuttle-cock: between the outer-house and the inner-house, vibrations and vibratiuncles, more than Hartley ever imagined. While this game is playing, the property of the suitors told over a gridiron in each house. “A plague on both your houses!” would be the cry of the agonizing suitor, if this fragment of a line in the part of Mercutio could be pronounced with safety on the Edinburgh theatre.*
8. The vibrations which in many instances a cause is made to perform between the court and the office of the subordinate judge called the Master, form another class, which must not pass altogether without notice. They have place both in law and equity, but more constantly and abundantly in the equity courts.
Made business is here almost undistinguishably entangled with necessary business: the reasons and pretences are far too multifarious to receive discussion here. Not that, in either class of courts, the vibrations are either so complex or so gratuitous as between the two contiguous Scotch delay-shops.
For illustration’s sake, take the following examples of the contrary practice:—
1. Indictments for offences not felonious, on the circuits; viz. before learned judges in the character of judges of assize. Instead of a complete vibration, a semi-vibration: the cause received into the King’s Bench, without having been sent from thence.
2. Indictments for the same offences at the quarter-sessions; viz. before justices of the peace—judges themselves unlearned, but acting per force in technical trammels, “tanquam in vinculis sermocinantes.”
3. Causes brought on by petition to the Lord Chancellor, in matters of bankruptcy.
4. Attachment causes, in all the Westminster-Hall courts: unless in the extremely rare event of a transmission of the defendant to the master, to be examined upon interrogatories.
5. Motion causes, and applications of various sorts, principal and incidental, in all those great courts. (See the chapter so intituled, Chap. XI.)
Note, that, in Nos. 3, 4, and 5, there is no transmission of the cause for collection of evidence; and that for a very simple reason: no evidence is received but in a ready-manufactured state, viz. the state of affidavit evidence: a state in which (it has been seen) there is but one objection to it—viz. that it is unfit for use.
The case of indictments for felonious offences is a case too complex to receive discussion here. In this case, antecedently to the trial, the cause has gone through two courts; viz. 1. That of the justice or justices of the peace, before whom the preliminary examination has been performed; 2. That of the grand jury, before whom the evidence has been heard on one side only, viz. the plaintiff’s. By the operations of the grand jury, the trial before the petty jury is also preceded, in the case of an indictment for an offence not felonious: but, as the cause comes before the grand jury in the first instance, without ever having been in any superior court, no complete vibration takes place here.
From the extent given to the bandying system in one direction, and the limits set to it in another,—from this incongruity, coupled with the gigantic length of arm given to the metropolitan courts, and the licence given to the prosecutor to choose his court,—results an addition of no mean importance to the mischievousness of the system to the people on the one hand, and the advantage made of it by its creators and preservers on the other. At the sessions, there is no bandying: sentence is pronounced, pronounced on the spot, by the president of a bench of judges, who, at the same time with the jury, have been hearing the evidence. At the assizes, as we have seen, the bandying system reigns. One judge, along with the jury, hears the evidence; the court of King’s Bench, composed of four judges, of which that judge may or may not be one as it happens, (the chances are exactly two to one against it,) pronounces the decision—the sentence, which professes to ground itself on that evidence.
At the sessions, the expense in fees is much the same the whole kingdom over: everywhere comparatively moderate, having been settled by or under the controul of those who derive no personal emolument from it. At the assizes, and at the metropolis, the expense of fees is of course, for the opposite reason, much greater. But the expense and vexation attached to journeys and demurrage, instead of being a fixed, is a fluent quantity; of which the extremes are to each other,—as ten—the number of miles representing the distance from Kingston to London, to three hundred and one—the number of miles representing the distance from Carlisle to the same manufactory of technical justice.
The magnitude of the punishment, consequently, is in the joint ratio of the animosity of the prosecutor, and the distance of the abode of the defendant from the great shop in which the sweets of revenge are dealt out in lots proportioned to the price which the customer is content to pay for them. Whatever be the county, town revenge is always to be had in much larger quantity than any which any such country shop can afford: but, to a man who has a taste for the sweets of revenge, a Surrey man, in the character of a defendant, brought up to town, will afford poor sport, in comparison with a Cornish man, or a man of Cumberland.
Not but that this excess in punishment has its remedy: but this remedy is, as usual, an aggravation of the disease. The Cornish man, if his own fireside happens to be more pleasant to him than the King’s Bench, enjoys the faculty of causing a motion to be made, praying the court to dispense with his personal attendance: that motion (like all other motions which are not of course) supported by affidavits and arguments on one side, opposed by weapons of the like nature on the other. For the chance, such as it is, of an exemption from this vexation (which is a work of supererogation, over and above the punishment,) a cause is then to be gone through: a cause of the same sort as that which comprehends the whole career of litigation in many other cases.
As to the King’s Bench,—what in that sanctuary befals the hapless sinner, dispensation being either not applied for or refused—with what solemnity, after hearing his sins poured over his head for the second or third time, by affidavits upon affidavits, enforced by comments upon comments—with what solemnity he is committed one day without sentence, that he may be brought up another day to receive sentence—in what pathetic strains (the day of doom at length arrived) the wickedness of the age hears itself deplored by the senior and most reverend of the three reverend and puisne ministers of technical justice,—these are topics not exactly assorted to this place. The reiterations and protractions given by the deliberations of the cat to the sufferings of the offending mouse, may, to any one to whom it has happened to witness any such dispensation of domestic justice, furnish a general idea of it.
Mischiefs, in specie, as above. Of misdecision, an increased factitious probability: of delay, vexation, and expense, a certainty.
First, as to misdecision. Of the evidence, all that most instructive part—the species of circumstantial evidence composed of deportment—the gesture, the countenance, of the witness, under the ordeal of adverse examination—in a word, the very spirit of the evidence,—is lost: the caput mortuum alone preserved.
The evidence is the very vitals of the cause. He who is not fit to decide upon the evidence, is not fit to collect it, or preside at the collection of it. For this function, when the mass of evidence is to a certain degree complicated and conflicting, no degree of skill, of experience, of sagacity, can be too great.
When the rule of action is in the shape not of sham but of real law, the ability necessary to right decision on the question of law, is as nothing in comparison with that for which a demand is sometimes presented by the function of collecting the evidence.
On the part of the judge whose province it is to frame a decision upon the evidence, the most consummate ability may be rendered useless by a want of ability on the part of him by or under whom it is collected.
In proportion as the deciding judge is studious to guide himself by the evidence, his decision is commanded by that other functionary (if there be another) by whom it is collected.
Under natural procedure, the parties present in court, the first thing done is to hear the evidence. If the cause affords no evidence but that of the parties, or none but what they have brought with them, then the whole of the evidence is heard at that one time, and the cause is already ripe for decision. To what end send it for decision to any other court? Certainly to no good end.
Exists there any other court fitter for pronouncing the decision? then was that other court fitter likewise for hearing the evidence on which the decision is to be grounded.
Does the cause afford more evidence than at that first meeting can be heard? Part, at any rate, of the evidence has been heard. When part of the evidence has been heard in one court, if the remainder can be heard in that same court, to what end send the cause into any other court? The evidence already heard, is it to be heard over again? Delay, expense, and vexation, are the consequences, all of them without use. Is it to be sunk and excluded? The consequence is misdecision, or at the best a great and useless danger of it
By necessity, this transference, this inconvenient arrangement, like any other, may be justified.
Of the evidence necessary to the pronouncing a right decision, it may happen that a part consists of the testimony of a witness whose testimony cannot* be heard by the court in which the suit is instituted, but may be collected elsewhere; viz. either vivâ voce in some other court, and so minuted, or in a ready-written state, by epistolary examination, as the case may be.
Here is a just and necessary cause for bandying the suit pro tanto from court to court. Here the transmission and retro-susception is proper, because necessary. By necessity it is justified: but it is by necessity alone that it is justified.
Under the technical system, this transference is made, always without necessity, always by choice, viz. by a blind and pre-established choice. By choice, yet without reflection: so it might be said, and truly, were it not for the sinister advantages which the authors, as may be seen already, reaped from it.
Of the cases in which it actually has place, is the extent commensurate to, and limited by, that of the necessity? Quite the contrary. The cases in which it has place are, all of them, cases in which, being without necessity, it is without excuse. The cases in which it has not place, are all those cases in which necessity and justice call for it.
Use to Judge and Co.—
1. Making business—constant, standing business, with its equally constant profits. The more courts, with their respective suboffices,—the more operations, the more fees. In what court, in what office, is anything done without a fee?
2. Making occasional incidental business: applications to the deciding judge, on the ground of alleged misbehaviour by or before or under the testimony-collecting judge.
3. Affording ease—ease to the deciding judge. Of the irksomeness of the operation of collecting vivâ voce evidence, mention has been made already. For lightening or shifting off the burden, different courses have been pursued.
In some instances, whatever has been the number of deciding judges sitting on the same question at the same time, all but one have slipped their shoulders from under the load, leaving it to rest upon that one. Such has been the expedient employed by the three great common-law courts in English practice, King’s Bench, Common Pleas, and Exchequer. Such also has been the general practice under Rome-bred law on the continent of Europe. In other instances, the deciding judge or judges have exonerated themselves of it altogether: turning it over, or rather turning it down, to some underling or set of underlings, not recognised as executing the function, or possessing the character, of judges.
4. Making complication: helping to manufacture rubbish to serve as materials for sham science: thereby nursing uncognoscibility on the part of the law,—that is, uncertainty in regard to decisions, with other beneficial consequences, for which see titles Nullification and Jargonization (Chaps. XIV. & XVII.)
[* ]The “vibrations” between court and court in Scotland, have been in a great measure remedied since the above was written (vide supra, p. 224, Note *.) Appeal, or removal of the process, from a lower to a higher court, still exists, however, to such an extent, that a cause may, and frequently does, pass through five grades of judicature. Commencing in the court of the sheriff-substitute, it proceeds to that of the sheriff; thence to the Outer-house of the Court of Session; thence to the Inner-house; and thence to the House of Lords.—Ed.
[* ]Cannot—i. e. the hearing of it would be physically or prudentially impracticable.