Front Page Titles (by Subject) CHAPTER IX.: FOURTH DEVICE—BLIND FIXATION OF TIMES FOR THE OPLRATIONS OF PROCEDURE. - The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
Return to Title Page for The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER IX.: FOURTH DEVICE—BLIND FIXATION OF TIMES FOR THE OPLRATIONS OF PROCEDURE. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
FOURTH DEVICE—BLIND FIXATION OF TIMES FOR THE OPLRATIONS OF PROCEDURE.
The parties once met in the presence of the judge,—in nine instances out of ten, the cause would receive its decision upon the spot; and, execution excepted (or not excepted,) nothing would remain to do in it at any other time.
Yet, circumstances there are, and in no inconsiderable abundance, by any one of which a demand may be created for a quantity of time to which no just limits can be set by general rules.
In any of these cases, whatever at the conclusion of that first meeting remains to be done, the properest time for doing it will be settled of course: settled by the judge, on the joint consideration of the quantity of business which thus remains to be done—the point of time at which it can be done—the convenience of the parties on both sides in that cause—and the convenience of the court, that is, of other parties, who, in other causes, have their several and equal claims upon the disposable portion of the judges’ time.
Thus necessary is it, on the occasion of each cause, that, in respect of fixation of times, the conduct of the judge should be governed by considerations peculiar to that individual cause.
In the way of general regulation (with here and there an exception too inconsiderable and too obvious to be worth particularizing,) fixation of days, of times and intervals, is plainly repugnant to the ends of justice. Fix what day you will, the chances against its being the proper day will be as infinity to one. On each individual occasion, the interval thus blindly allotted will either be too long, involving factitious and needless delay, or not long enough, insomuch that in the course of it either the business cannot be done at all, or cannot be properly done.
1. Under the technical system, neither party being present, exigencies and convenience of all sorts being in all shapes alike uncared for and unknown, discriminative fixation is impossible: the one device forms thus a reason for the other device—the one abuse forms a cover for the other abuse.
The fixation is not so inflexible, as not to have admitted diversities of time corresponding to diversities in place.
Jurisprudence, English jurisprudence, has a geography of its own. In England there are two places, town and country. Town is the spot in which the four courts are situated: reckoning from that place as from the terminus à quo, all places in the country are at the same distance. As the term is one day, so the country is one place. But, forasmuch as there are two places, town and country, so there are two sorts of causes, town causes and country causes. Accordingly, when for a given operation a certain number of days are allowed in a town cause, for the same operation an additional number of days are allowed in a country cause: one and the same additional number in every country cause.
If, as hath been said, the branches of true science are connected, those of sham science are so too. Jurisprudential geography and jurisprudential chronology throw light upon each other.
Regularity and good order are the images presented, and doubtless meant to be presented, by these fixations.
Whatever is according to rule, or reducible to rule, is regular. But, the quantity of the pillage being given, whatever be the degree of regularity, the party plundered is not much the better for it: still less, if the object and effect of the regularity have been to give birth or increase to the quantity of the pillage.
Every order is good order, in the eyes of him who profits by it.
Motions for setting aside proceedings on the ground of irregularity, form no inconsiderable part of the business of the courts. The irregularity is sometimes improbity, sometimes honest departure from regularity, as above delineated.*
Uses to Judge and Co.—
Use 1. Making business.
In each case, whatever be the length of time thus blindly fixed, it will almost always be either too long or too short: longer than necessary, or too short to admit that to be done (or at least properly done) which is required to be done.
If too long, then come the advantages from delay: of which under the next head. If too short, then comes an application for more time. No application but by motion; and no motion without fees: fees to the advocate for making it, or being supposed to have made it; fees to the attorney for preparing it; fees to judicial officers for preparing and registering the result.
The application is either opposable or unopposable. If unopposable, then the application is a sham application, and the fees for making it so much money obtained on false pretences:† moreover, so much more delay, sold thus by the partnership to every dishonest suitor who will pay the price for it. If opposable, and opposed, then comes so much more business: a cause within a cause—a motion cause within a regular cause.
Opposed or no,—if opposable, the application must have its evidence to support it, and warrant the judge in complying with it. This evidence is not received but in the shape of affidavit evidence, bringing with it its fees: fees to the attorney, for manufacturing: fees to judicial officers, for receiving and registering it.‡
Use 2. Affording ease to the judge. Fixation with eyes open, would have consumed time and trouble. To regard the ends of justice—to consult the convenience of the suitors—to attend to the allegations and discussions pro and con, in relation to that convenience,—are irksome operations, beneath the dignity of the court. By blind fixation, time, trouble, and dignity, are all saved.
Use 3. Affording materials for the system of mechanical judicature, or decision without thought; for which see Chapter XII.
Use 4. Making more and more rubbish, with the help of factitious and groundless diversification: thence uncognoscibility, uncertainty, and so forth, as before.
With blind fixations, the ingenuity or the blindness of the man of law has contrived to combine equally blind diversities. Though, from diversity in respect of length of distance, no diversity in respect of length of time allowed, is deduced; yet, from diversity as between court and court, all four in the same hall, correspondent diversities in respect of allowance of time have not been grudged.
As to the mischiefs to the suitor,—in a general view they have been stated already, under the preceding heads: in detail, they may so easily be read through the medium of the benefits derived to the law partnership from the same source, that a separate delineation may, it is supposed, be spared.
[* ]See Chap. XIV. Nullification.
[† ]See Chap. XI. Motion Business.
[‡ ]The principal cause, if tried, will or will not be tried upon evidence in a fit shape: but the shape in which the evidence for or against these applications is presented, is never any other than an unfit shape. The principal cause, if tried, would (suppose) have been tried upon good evidence; but it is prevented from being tried—prevented by the result of an application supported and opposed by bad evidence—by mendacity undetected,—undetcted because presented in that fallacious shape. Trial put off, upon affidavit (suppose) of the temporary absence of a material witness. The alleged material witness has no existence: in the meantime, a really existing material and necessary witness, on the other side, dies, or goes out of reach.