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CHAPTER X.: FIFTH DEVICE—SITTING AT LONG INTERVALS. - 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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FIFTH DEVICE—SITTING AT LONG INTERVALS.
Connected with blind fixation of times for judicial business, but separable from it, and therefore not identical with it, is the device which consists in the establishment of long and unabridgeable intervals between these times.
As to the general nature of this device, it is too simple for explanation. The mischiefs of it (viz. to the suitors) are those of delay. Of the uses derived from it, and in the contemplation of which the creation and preservation cannot but have originated, some explanation may be of use.
But, before we come to speak of the uses, a short glance at the principal applications made of it, will place it in the clearer point of view.
Of these applications, the principal are presented to view by the words term and circuit.
Terms in the year, four; each containing three weeks and a day, upon an average: nineteen days, deducting Sundays.* Of the thirteen months (lunar months) in the year, not so many as four in which anything is done under the name of justice. Under the name of vacation time, all the rest of the year is a blank: all the rest of the year so much holiday time given to injustice.
Such was the original arrangement, in effect as well as name: such it is still in name, and in effect as far as possible. If, through this and that outlet, as the business increased, this or that portion forced itself out of its bounds, and spread itself over the vacation, it has been because it could not be kept in; because the complete confinement of it was not possible. Nor need the extravasation be matter of regret: on the one hand, the extra labour called for in the vacation is not unrewarded; on the other hand, of the profitable mischief produced by the compression, by far the greater part (as will be seen) has been successfully preserved unimpaired.
Judges keep holiday! almost four-fifths of the year in holidays!†
If there were a time of the year, a proper time, for justice to sleep, when would it be? When injustice does.
When is the time for the shepherd to keep holiday? When the wolf does. When is the time for the mother and the nurse to keep holiday? When the infant can live without sustenance. When is the time for the physician and the surgeon to keep holiday? When there are neither diseases nor accidents.
The ancient Romans, being pagans, and (as such) superstitions, had their dies fasti, and their dies nefasti: days in which justice was to be done, and days in which it was not to be done; days in which it was lawful, and days in which it was not lawful, to do justice.
The primitive Christians, a whimsical set of people, when they came into power took it into their heads, evidently out of a spirit of opposition, to “administer justice upon all days alike.” In the eyes of Blackstone,‡ neither of these courses coinciding with existing practice, both it seems were wrong: the dies fasti and nefasti made an extreme; and justice upon all days alike, a sort of confusion of all order, made “a contrary extreme.”
“Profanation,” the wickedest of all wicked things, broke out in different shapes: administering justice upon all days alike, was one of them. Among other sins of the primitive Christians, “holy church,” when it came into power, took this profanation in hand to correct it. Taking into consideration five holy seasons, Advent, Christmas, Lent, Easter, and Pentecost, it beheld in them so many reasons for four intervening vacations—so many reasons for being months together without so much as pretending to administer justice. Of the necessity of the three short vacations, considering that holy mother church was at that time a Papist, Blackstone seems to have entertained a sort of half-disclosed suspicion: but, as to the long vacation, a season so comfortable to lawyers, with that he seems to have been completely satisfied. Here, to the general spiritual reasons, he adds a temporal one; a reason, which, if good in those days of popery, is certainly not less good in these days of reformation: this is the demand presented for denial of justice, by the “hay-time and harvest.”
Accordingly, certainly in the eyes of holy mother church, and, as it should seem, in those of Blackstone,—should it have happened to a man to have his carts and his horses unjustly taken from him, and thereupon to apply to a judge to have them back again,—the application would have been an unreasonable one, contrary to the interests of agriculture. What is the matter with the man? What use can he have for his horses or his carts? Does not he know that it is harvest time?—Such would be the speech of Mother Church’s and Mother Blackstone’s judges.
Such is the cogency of this reason, that, in the city of London courts, whose jurisdiction ends before fields begin, long vacations are kept up no less religiously than in Westminster Hall. Not to speak of the profanation, care was taken not to call off the harvest-men from their labours in Cheapside.*
One use of prohibitions is to form a ground for dispensations: her holiness was not inexorable: dispensations were granted, the profanation vanished.
Anno 1275, at the commencement of the reign of Edward I.,† a discovery was again made, that “it is great charity to do right unto all men at all times when need shall be:” whereupon, at the special request of the king to the bishops, provision was made, that, in a few particular causes, at a few particular extra times, justice, even without any such special dispensations, might be done.
Since then, the time for doing justice having been found once more to have run out into “an extreme,”—parliament has since, under the direction of its learned counsellors, been occupied, not only in “regulating” terms, but in “abbreviating” them,‡ particularly the two boundaries of the long vacation, Trinity Term and Michaelmas, lest that “holy season” for injustice, now happily so much longer than all the seasons for justice put together, should not be long enough.
All this while, the truth is, that, in the eyes of the most competent judges, three months in the year for administering justice was an excessive allowance; four days were quite sufficient: and, by an exertion of legal pncumatics, each term, consisting of thirty days, more or less, was condensed into one day, and so real is this condensation, that it is decided andargued upon, and forms a source of business.
Terms, with their vacations, present but an inadequate idea of the quantity of delay really manufactured. An idea nearer the mark is that which is indicated by circuits. Not that either is complete without the other; for, to the quantity manufactured by one of these engines of iniquity, must be added the quantity manufactured by the other.
Excepting that class of causes, from the trial of which, as above, all fit evidence is excluded; with a few other exceptions, of too narrow an extent in the whole to be worth particularizing, the business done in term is so much made business: business manufactured by the principle of fixed days, as above, or some other device or devices;* business for which in the natural system there is no place, and the transaction of which is repugnant, instead of being subservient, to the ends of justice. In a general point of view, term business may be set down to the account of sham business. The real business, the business by which anything is done towards the ends of justice, is what is done at the trial; and, in causes non-criminal (not to speak of the inferior criminal ones,) the trial, under the operation of the bandying principle, as above explained, is performed at the courts of Nisi Prius, and the circuit courts: Nisi Prius courts in town causes, circuit courts in country causes.
Counties in all England (Wales not included,) 40; deducting Middlesex, as not comprised in the circuits, 39. Counties to which the judges in their circuits go twice in the year, 35; counties to which they go but once in the year, the remaining 4.† Average number of days in the year, on which the circuit courts sit in each place, at both seasons put together—gross number, 6; employable number (allowance being made for journeys, and for days of entry, on which in general nothing can be done,) at the utmost, 5. Out of the 365,—number of days during which justice, or something that goes by the name of justice, is administered, those 5; number of days in which nothing under the name of justice is so much as pretended to be administered in these courts, anywhere but in the metropolis, the remaining 360. Term-times for real business, two in the year, lasting 2½ days each; vacations between those term-times, two, of 180 days each: four counties excepted, in which the vacation, instead of the 180 days, lasts about 360 out of the 365; the four northernmost counties being as well able to live without justice for a whole year, as their next neighbours for half a year: as some animals are able to live longer without air than others.
Blackstone, besides the care and cheapness, bids us admire the system for the “expedition” which characterizes it. Expeditious indeed, if, out of the 365 days, 360 be but thrown out of the account—the 360 in which nothing can be done!—expeditious, indeed, on these terms, as if Procrustes himself had planned it!
In the time of Henry II., who, out of his grace and favour, gratified his people with a circuit once in every seven years, Glanville, his grand justiciary, or whoever held the pen of Glanville, trumpets it forth in the only passage of his book‡ in which any symptoms of sensibility are to be found. Instead of once in seven years, had it been once in seven times seven years, the Glanville or the Blackstone of the day would have admired it, either for the expedition, or for something still better, which they would have found in it.
Meantime, whatever delay is created by the 360 or 362½ vacation days, is amply made up for in the remaining 5; excess of delay finds, in excess of precipitation, a counterpart, and, in the eye of the law, a remedy. The space being marked out, it is for the causes to squeeze themselves into it, as they can, like negroes on the long passage.∥
When the natural course of things is departed from, and that to such a degree that there are more no-justice days than justice days,—in such a state of things, in regard to justice days, what is of much more importance than the number of them in the year, is the degree of equality with which they are distributed.
Suppose, for example, in the whole year, 52 justice days, and no more: place them regularly one in each week, and on the same day in each week,—here are in each week indeed 6 no-justice days, but in no week any more. Place them, on the contrary, in an order as widely different from the foregoing one as possible; place them all 52 together,—the whole year is thus divided into two masses and but two: one composed of 52 justice-days, the other of 313 no-justice days: a term of 52 days, followed by a vacation of 313.
With this proportion in both cases,—under the system of the greatest equality, suppose the causes to be all of them of a simple cast, and to such a degree simple as that none of them shall be capable of being protracted beyond the first sitting. In this case, though the provision made in this respect for the fulfilment of the ends of justice would fall considerably short of that made by the natural system of all justice-days,—still, in comparison with the system of greatest inequality, the denial of justice would be comparatively inconsiderable. On the one hand, the inconvenience resulting to the suitors from the subtraction of the six days out of the seven would be comparatively inconsiderable; on the other hand, the benefit to the law partnership would be absolutely nothing, or next to nothing. Suppose the cause complex enough to require an adjournment, then the inconvenience to the suitor, and what (as will be seen) would keep pace with it, the benefit to the man of law, will begin to be sensible. Suppose, with or without a fresh adjournment, another week,—the inconvenience on one side, the advantage on the other, would rise in value: and so on without end.
Viewed in this point of view, the abominations of the circuit system will show themselves in the truest and clearest light: in the four northern counties, the inequality of the distribution, and consequently the wickedness of the system, at the highest possible pitch; in the thirty-five other counties, the inequality and the wickedness half way to that pitch.
The profits here placed to the account of the length of the intervals between the time fixed for one part of the business and the time fixed for another part of the business in the same cause, are over and above those which are reaped from the mere fixation of the times, as under the last head.
Use 1. Making business by making delay. Delay is a part of the stock in trade: terms and circuits, with the vacations between them, are the machinery by which it is made. On each occasion, the greater the quantity of the delay, the better it is worth a man’s while to pay the price that has been set upon it.
Use 2. Making business by extra fees: fees taken by the judge, or (what comes to the the same thing) his official instruments and sponges, for business done in vacation, over and above what is taken for the same business when done in term time.*
An instrument of extortion is thus made out of the delay: and the longer the delay, the stronger the instrument.
The judge neglects, wilfully neglects, his own duty: this neglect of his own he converts into a source of profit. First he commits the wrong; then he takes advantage of it: himself he rewards for it—him who is injured by it, he punishes for it.
Use 3. Making business by delay; viz. the delay manufactured by the nullification machine. Of this engine of iniquity (one of the most capital ones in the whole factory,) a draught will be given in another chapter.* According to the application made of it, sometimes ultimate misdecision, sometimes mere delay, is the product. When it is delay only, it is for the sake of the delay with the casual benefits attached to it—of the delay, and nothing else,—that the suitor applies to have the engine set to work. The delay is the commodity which he obtains by the application: the costs of the application (by which party soever ultimately paid,) are the price of it. Were it not for the delay, he would get nothing by the application; the costs of it would be so much pure loss to him he would never make it. What use would there be in making a flaw, if it were cured as soon as made?
Thus, then, stands the relation between the system of terms and vacations, and the principle of nullification. Without the principle of nullification, the system of terms and vacations would, in a variety of ways, have been rendered serviceable to the ends of judicature; but, without the system of terms and vacations, that engine of torture, the principle of nullification, so far as concerns its dilatory use (which is its principal use) would have been worth nothing, and society would never have been afflicted by it.
Use 4. In case of pecuniary demands,—securing to the defendant (when a wrong-doer,) in the shape of interest saved or gained (interest on the amount of principal due,) an inducement to become a purchaser of the delay so manufactured and set to sale.
Use 5. Making business, by giving effect and use in like manner to one division of the chicaneries in regard to notice. See the chapter on that head (Ch. XIII.)
Use 6. Affording ease to the judge, and to the partnership in general: ease in the shape of holidays.
So much the less time in which business can be done, so much (for a moment it might be supposed) so much the less business: thus obtained, ease (it may be thought) is obtained at the expense of profit. No such thing. The quantity of natural business,—the demand for the services of the judge by the administration of justice, is little influenced by the time allowed for doing it in. If, in this or that particular instance, an example should be found of business (natural business) lost by delay, the sum total of the business so lost would be found to hear no proportion to the amount of what is gained in the shape of made business.
Of the denial of justice for so great a part of the year, coupled with the non-denial of it during the remainder,—of the compound made (as above noted) of excessive delay with excessive precipitation,—the general effect (bating a few casual exceptions) is, not that less is done by reason of the temporary denials of justice, but that what is done is more badly done.
That for which time is continually insufficient is, rendering of justice: that for which time is never insufficient is, receipt of fees.
[† ]Although a great portion of the year is included in what is technically called vacation, it must not be supposed, that during that time the judges are enjoying holidays. Independent of the sittings at Nisi Prius, after the terms, there is the daily attendance at chambers, where a great deal of business is transacted, the spring and summer circuits, and the twelve sessions of the central criminal court. The terms are now all fixed by the 11 Geo IV. and 1 Will. IV. c. 70, amended by the 1 Will. IV. c. 3, and by the 1 & 2 Vict. c. 32. Sittings in bank may be held in vacation, at the discretion of the judges, for the dispatch of pressing business.—Ed.
[‡ ]Comm. vol. iii. p. 276, b. iii. chap. 18.
[* ]The course taken by Blackstone is altogether in his style, and, when rightly explained, instructive.
[† ]3 E. 1. c. 51.
[‡ ]III. Comm. 277.
[* ]Viz. Pleadings in writing; nullification principle.
[† ]Vide supra, p. 51, sub-notea.—Ed.
[‡ ]Glanville, lib. 8.—Ed.
[∥ ]On the Norfolk circuit, each perambulation affords about sixty causes; on the western, more than thrice as many. The 2½ or a little more, allowed at each place on the western circuit, serve as well for the west country causes, as the 2½ or something less, serve for a third part of the number in the east. If days are not elastic, causes are, which comes to the same thing.
[* ]It was by the system of terms and vacations that the delay was manufactured, by the sale of which, in lots of a year’s length, the chief justice of the King’s Bench, in Lord Kenyon’s time, used to make his £1,700 a-year: £1,700 a-year and more, by this one article. In a court of conscience, or in the study of a justice of the peace, not a farthing was ever made by it.
[* ]Vide Chap. XIV.