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CHAPTER XII.: SEVENTH DEVICE,—DECISION WITHOUT THOUGHT; OR MECHANICAL JUDICATURE. - 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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SEVENTH DEVICE,—DECISION WITHOUT THOUGHT; OR MECHANICAL JUDICATURE.
In this device may be seen the very acme of perfection, under the fee-gathering, the technical, and (as it might be called, could the object be completely attained) the mechanical system: in this may be seen the goal to which all exertions tend, though it cannot on every occasion be reached:—to get in the money, without the trouble of a thought. Here may be seen men without feeling, operating upon others as if they had none.
Besides the exclusion of parties, which is necessary for everything, the principle of fixed days was necessary, indispensably necessary, to the accomplishment of this device: which in truth is little more than the principle of fixed days carried to perfection, and applied to this particular purpose.
Something which, on a particular day, according to a rule declared, or not declared, ought to have been done—done by the defendant’s attorney—is not done: from this omission, without anything more, the judge, by his decision, deals with the defendant as if he were proved to be in the wrong. Not that he thinks him in the wrong, for he thinks nothing about the matter: but, from this omission on the part of one member of the partnership, the other takes occasion, without knowing anything about the cause, to act as if he had tried it; and to punish the client for the fault, real or pretended, of his lawyers. Like default on the part of the plaintiff’s attorney, judgment for the defendant: judgment against the attorney’s client, the plaintiff.
What is thus done by the power of the judge,—by whomsoever it be really done, is at least said to be done (you would naturally suppose) by, as well as by the authority of, the judge. No such thing: to such perfection is the system carried in this line, so notoriously as well as effectually is the judge exonerated from the trouble of judging, that judgment in this case is not so much as said to be signed by him: the member of the partnership, the person by whom it is said to be signed, is an attorney—the attorney of the party in whose favour it operates. So completely are the relations of persons and of things confounded: so open, not in deed only, but in word, is the contempt of justice.*
It is well for the party if the worst that happens to him in such a case, be the loss of his cause.
By blameless ignorance, by culpable ignorance, by negligence, or by treachery, something which (it is said) should have been done on a particular day by an attorney, is omitted to be done:† by an attorney employed by the party,—or perhaps by the party himself, who has failed to employ an attorney, because it was out of his power to find money to pay one. The something at any rate which should be done, fails to be done. What is the consequence? By a pre-established order of things, the work of the Goddess Law, not of the mortal judge,—the defaulter (that is, not the person by whose fault, but the person to whose misfortune the failure has taken place,) is pronounced a rebel or a contemner of justice, and dealt with accordingly: he is taken up and consigned to prison on the authority of a writ of attachment, as for contempt, or a commission of rebellion: a paper signed by somebody, no matter by whom; by an adverse attorney, by an automaton, or by a judge.‡
Regularity is thus maintained: and, on the strength of that endowment, the system is (for praise and honour) compared to a piece of clock-work. The parailel need not stop there: for, under a set of rules so organized, it is just as impossible to a judge of flesh and blood, as it is to a judge of leather and prunella, with bowels of brass and iron, to do anything better than receive fees.
Under the authority of a judge, acting under the natural system, what room is there for such regularities, for such irregularities, or any of their consequences? The parties being before him at the outset of the cause (an appearance which need not, and perhaps would not, cost either of them a farthing) he would state to them what was to be done by each of them on the next occasion, and what, in case of failure, would be the consequence. In a case of extremity, he would have recourse to the measure of extremity, he would send a warrant: but the warrant would neither make nor find, nor pretend to find a rebel or contemner. If the cause reguired another day to finish it, would the day appointed by him be appointed by cross and pile, without thought or preference as between convenience or ruin of the interests of any of the parties? On the contrary, not one would there be, to whose convenience due attention would not be paid of course.
Though, in the order of things which we have been examining, the decision is altogether without thought, it cannot in strictness be said to be altogether without evidence.
By an inference made once for all, the party whose attorney makes default, is concluded to be in the wrong. Here is a something, which, if it must be called evidence, belongs to the head of circumstantial evidence: and so satisfactory is this evidence, that, by the operations grounded on it, it is pronounced conclusive.
Of the inference so quietly drawn, what is the force to a rational hand, consideration had of the circumstances of the case? From the fact thus accepted in the character of an evidentiary fact, and that conclusively so, is there any sufficient reason for regarding the principal fact (viz. that of the party’s being in the wrong) as being so much as in a preponderant degree probable? No such thing: whatsoever, under the natural system, under a system pure from factitious expense, might be the degree of the probability,—the force of the inference, under the system in which it is made conclusive, in which the probability is put on a level with certainty, is below par—much below par: the chances are many to one on the other side. Without setting down anything for the chance of treachery, ignorance, or negligence, on the part of the attorney, or (what is so frequent a subject of judicial complaint) fraud on the part of his brother on the other side, or even uncertainty in the rules themselves, which had uncertainty for their object,—of the whole number of individuals exposed to the misfortune of becoming defendants, how few are there who are able to defray the expense of continuing themselves on that unhappy list, in comparison with those who are unable! If the unable are not to the able as more than one to ten, then say, on this score alone, without looking to any other, the chances are as ten to one against the truth of the proposition, thus acted upon as if it stood on the ground of certainty.
If, in imitation of the law still existing, in some places in regard to flour-mills, a barber secured by privilege in the possession of the whole custom of his district were to set up an engine, by which, instead of corn ground, beards were to be shaved, the patients standing in rows to apply their faces to the circumference of a wheel,—the advantage to the professional man would be obvious and indisputable: business to any amount might be done within a given time; and, should any mischance takes place, such as the drawing of blood, or the levelling of protuberances not intended to be levelled, the responsibility, instead of falling upon the professional man, would be divided between the patient and the wheel.
The privilege was too valuable to be imparted to barbers: judges reserved it to themselves. Canses accordingly are decided, though not exactly by steam (steam-engines have not been long enough in use,) yet (what comes to the same thing) by mechanism, without the aid of any such expensive instrument as human reason. As to the advantages of the improvement, they have been already indicated. Men are as well judged, as by the shaving-wheel they would be shaved: and the nees derived by the partners, with the judge at their head, from the circle of offices, are alike conspicuous as those that might be derived by the barber from the wheel.
In the system of mechanical judicature, the supposition of the existence of notice, apposite and adequate notice, is necessarily involved. In many cases, and, of course, in as many as possible, the supposition belongs (as will be seen) to the category of fiction; it is false; the study having been to make it so. But, as appearances must to a certain degree be preserved, and punishment, or other hardship, avowedly inflicted without notice (that is, without possibility of defence,) would not be consistent with the preservation of appearances,—it is not the less true, that (on whatsoever principles performed, rational or mechanical) judicature supposes notice.
Under the system of fixed times,—in so far as the fixation extends, and is not disturbed by incidental application,—the fixation, being supposed to be foreknown, is thereby supposed to convey the requisite information; to operate as notice. To this class of cases extends what may be called general or pre-established notice.
On the other hand, in the cases to which the system of fixation has not been supposed to extend, and in those to which, as just mentioned, it has experienced disturbance,—to those cases applies the demand for special incidental notice.
Such is the connexion between the device of mechanical judicature, and the device (that is, as will be seen, one out of two parts of the device) composed of chicaneries about notice. To render the mechanical system more productive, one object has been, so to order matters, that the implied supposition of the existence of adequate notice shall in this and that instance, and of course to as great an extent as possible, fail of being verified. By the impossibility of timely notice, or by some other means, that which a man is to be punished for not having done, is rendered impossible; and, therefore, he is punished for not having done it.
For an exemplification of this policy, the practice of outlawry* in actions called civil actions, is of itself a host of cases. But, as to this, see the chapter in which the chicaneries about notice are particularly brought to view.
Uses to Judge and Co.—
To the uses already summed up, under the head of the two devices forming the foundation of this device, there will not be much to add.
Use 1. Making business; viz. by the foundation laid for defaults, mischances, and frauds, thence for more and more business.
Use 2. Making business; viz. by giving encouragement and existence to malâ fide demands and defences, under the assurance of inability on the part of the adversary (for want of adequate opulence) to avoid making the default.
Use 3. Affording ease; viz. by enabling the judge to act, and receive fees, without expense of thought, without expense of time, trouble, avocation for pleasure, or hindrance of ulterior and more profitable business.
Use 4. Affording ease; viz. by exempting the judge from all responsibility, and apprehension of responsibility. A judge, when he has thus converted himself into a machine, shares this advantage with other machines.
Use 5. Affording case; viz. by giving to the judge the profit of inhumanity, clear from the opprobrium.
Use 6.—and from that pain of sympathy, which, by the view of the party thus injured and distressed, while suffering under the distress, might by possibility, in some cases, have been excited.
The most striking peculiarity of this device, as compared with most of the others, is the shelter which it affords to the judge against responsibility.
When the fate of the several parties interested is seen to have the judge for its author, to have a decision pronounced by the judge on the ground of appropriate evidence for its cause, a certain share of responsibility attaches of course upon the judge. Should the parties, or any of them, labour in consequence under any evil imposed upon them in contravention of the ends of justice, the odium at least (if nothing more) is carried naturally, and of course, to the account of the judge. Should any profit be thrown into his hands by the operation of the same cause, such profit will be apt to be also carried by the public mind to the account of the judge; and the expectation of the profit on the one part will be in danger of being looked to, as the cause of the suffering on the other.
That so inconvenient a check should be removed, was of essential importance to the ends of judicature. The principle of decision without thought, presented itself for this purpose. Whatever is done—whatever cruelty, whatever extortion is practised, takes place without any thought, and, therefore, without any need of thought, on the part of the judge—takes place, in virtue of certain pre-established rules. These rules—having been established so long ago, nobody knows when, nor by whom, nor why, nor wherefore—are of course presumed to be the fruits of the most consummate wisdom;—and whatever misery is seen to flow from them, is placed to the account of necessity, and the nature of things, the imperfection of human institutions, and so forth. Who have been the sufferers, or to what amount, the judge neither knows nor cares. The judge who knows what it is he does, is exposed to the imputation of partiality. Let things be so arranged, that, on as many occasions as possible, he shall act, and be known to act, without knowing what he does, and that men in general shall understand as much, and be satisfied with it,—malice itself cannot find any pretence for disturbing him with any such charge. The judge secures the praise of probity, inflexible probity,—and by what? By that very arrangement, by which, for the purposes of extortion, justice has been rendered impossible.
The judge is thus, almost from first to last, the passive, the unconscious, and consequently the innocent and irresponsible, instrument of all the mischief that is done by his authority, and for his benefit. Whatever distress, extortion, and injury, comes to be manufactured for his use, means have been found for saving him from everything that could have been unpleasant to his feelings; from the tears of the afflicted, from the cries of the oppressed, from the reproaches of the injured. Whatever mischief is done, either he never hears of it, or, if he does, it is through the medium of friends and partners, engaged by a common interest, in reality to make it as heavy, in appearance to make it as light, as possible.
In the simplicity of ancient times, saving his ears from being stunned with noise (ne ampliùs clamorem audiamus) was the only motive to which it was thought needful for the monarch to ascribe his alleged disposition to do justice. Under the technical system, his substitute, the judge, has contrived to withdraw himself out of the reach even of this motive.
[* ]To prove, for the amusement of readers, that a case may exist, in which, without inconvenience, a man may be a judge in his own cause, Blackstone introduces an imaginary pope adjudging himself to be burnt, and burnt accordingly. Why go to all that distance, and for a single precedent? Why not say—there exists a country in which every attorney is judge in his own cause: and this country is precisely that in which “everything is as it should be”? In Italy, the judge, though a saint, did not become so till he was burnt: in the English Utopia, every attorney, without any expense of fuel, is as much a saint as he was.
[† ]Reg. Gen. H. T. 2 Will. IV.—Ed.
[‡ ]This practice is now altered by the 2 Will. IV. c. 39.—Ed.
[* ]Vide 2 Will. IV. c. 39, §§ 5 & 6.—Ed.