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CHAPTER XVI.: ELEVENTH DEVICE—READY WRITTEN PLEADINGS. - 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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ELEVENTH DEVICE—READY WRITTEN PLEADINGS.
Idea of a system of pleading adapted to the ends of justice.
Should justice ever become an object, a system of pleading might be devised, which, creating no delay, and giving no mendacity-licence, should at the same time give real information to the parties, and bind in chains the despotism of the judge.
He who has a right to any subject of property,—immoveable or moveable, sum of money to be paid him by some one else, service of any other sort to be rendered by a determinate individual,—is he in whose favour some one in the list of events or states of things having, with reference to that right, the effect of collative (or say investitive) events or states of things, has taken place: no article in the list of those to which, with reference to that same right, the law has given the effect of ablative (or say divestitive) events or state of things, having subsequently taken place in his case.
The nature of the subject of property, or of the right, so demanded (ideas never having been clear, language on this head is not determinate,) determines the nature of the service which is the immediate subject of demand: the service which the plaintiff prays may be rendered to him by the judge.
General description of the proper contents for the instrument of demand: correspondent to the declaration at common law, the bill in equity:—
1. Specification of the service demanded at the hands of the judge; including, of course, where property is in question, a specification of the subject-matter of the property.
2. Indication of some one collative event (or more, if by accident there should be more than one,) on which the plaintiff grounds his title to that service.*
Reference to the article or articles (say for shortness the article) of the body of law, on which the demand is grounded; viz. in which the right or title to a service of the sort in question is given to him in whose favour a collative event of the description in question has taken place. Assertion of the matter of law.
Affirmation (on oath, or what is equivalent) of his belief of the happening of an individual event, coming under the description of the sort of collative event above indicated. Assertion of the matter of fact.
3. Reference to the article of law, by which, in relation to the same service, the quality of ablative events is given to a list of events therein contained.
Affirmation, that no individual event, coming under the description of any one of the events in that list, has, to his belief, taken place in this instance.
This (with the occasional addition of so much incidental matter as we have seen) is what comes out of course, at the judicial meeting spoken of under the head of the exclusion put upon the parties. Such is the stock of information required, of course, by the judge, to warrant him in rendering the service prayed for: such is the information which will of course be given by the plaintiff himself, by every plaintiff, in so far as his intellectual qualifications serve him for the purpose: such is the information which, in case of any deficiency in these qualifications, it will belong to his professional assistant, if any such be present, to draw from him—or, if not, to the judge.
According to the importance of the cause, in itself, or in the estimation of either of the parties (he paying, provisionally at least, the extra charges, should the importance of it be deemed to have no other ground than the particular state of his own particular affections,) minutes will therefore be taken, or not taken, of this part (as of other parts, if any) of the evidence: but at any rate a printed form, with proper blanks, will be filled up and signed by the plaintiff, to serve, pro tanto, the various purposes, private and public, of a record.
Lawyer.—Mighty well; but all this, does it not suppose two things?—a correspondent mass of what you call substantive law, on which this course of procedure is to be grounded, and to which it seeks to give execution and effect; and that mass of substantive law in the state, not of common, but of statute law?
Non-Lawyer.—Doubtless it does.
Lawyer.—And so, according to you, there can be no such thing as good pleading, without a complete body of laws in the form of statute law: that is, without the extirpation of the good old common law, the pride of ages, the Englishman’s best treasure!
Non-Lawyer.—Say rather, if you please, the English lawyer’s: but, as to that point, be pleased, if you have any curiosity, to restrain it till you come to the device spoken of under the head of magnification of jurisprudence.
Lawyer.—And so you look upon it as possible, do you, sir, to compose a complete body of statute law, extending over all causes, as well as over all persons?
Non-Lawyer.—Indeed do I, sir; and, for these fifty years or more, the more I have thought of the task, the greater does the facility of it appear to me. Not a cause is ever decided, or so much as begun, but all this, though never done, is supposed to be done. Which, according to you, is productive of most labour and most difficulties?—to form an article of real law once for all; or, by an endless series of suppositions never realized, to make it over and over again in imagination,—to make so many sham substitutes to it? If the difficulty be insuperable to a select draughtsman, appointed by the legislature, subject to correction from all mankind, under the authority of his employers—one who may have been occupying a whole life in thinking of it,—how comes it to be so easy for every attorney, special pleader, or attorney’s or special pleader’s clerk, to be continually imagining such laws as fast as called for?
Among the objects which it may be necessary for the judge to have under review, to enable him to compass the ends of justice, may be noted three; the description of which it will in all cases be useful, in some absolutely necessary, to have in a fixed form, given to them by means of the act of writing; viz. the demands on both sides; the titles, or grounds of demand, on both sides; and the evidence:—
1. On the part of the plaintiff, a description of the demand in this permanent form is in general necessary for the use of the judge; to the end that, in the event of its being acceded to by him, the decision, the judgment, pronounced by him, and the execution of that judgment, may be sure to be correspondent to it.
2. The same reason applies to any demand that may happen, in the course of the cause, to be brought forward on the part of the defendant: since, in case of any such counter-demand, he takes upon himself, pro tanto, and in respect of it, the character of plaintiff.*
3. On the part of the plaintiff, again, a designation of the title, or ground of demand, in this same permanent form, if not at all times necessary to the judge, would be more or less useful to him; to enable him (in so far as reflection for any considerable length of time may be necessary) to reflect upon it, without danger of mis-recollection, at his leisure.
This in the case of him who acts as judge in the first instance. But, in case of dissatisfaction on either side, and appeal accordingly to another court (especially if the propriety of the conduct of the judge below is to be among the subjects of inquiry,) these fixed designations will be little less than necessary. The demand actually acceded to by the judge, is it of the number of those that, according to law, are, if supported by appropriate titles, capable of being acceded to? The title on which the accession given to the demand was grounded, is it of the number of those to which the law has given the faculty of serving as a support to that sort of demand?—To enable the judge above to give a surely-grounded answer to these several questions, it seems little less than necessary that of each of them there should be a description, reduced to that permanent form which excludes all dispute about the words, and enables all persons concerned to refresh, at any time, whatsoever conceptions they may respectively have formed of it.
4. That on both sides of the cause the evidence should be invested with the same permanent character, will always be at least conducive, if not absolutely necessary, to the ends of justice; for two distinguishable purposes:—1. That, in case of mendacity, the alleged matter of delinquency, the subject or ground of prosecution, and eventually of punishment, may be ascertained beyond dispute; 2. That eventually, in case of dissatisfaction, as before, it may be seen, upon occasion, how far the decision professedly grounded on the evidence, was really warranted by it.
Such are some of the principal of the purposes with reference to which the exercise of the art of writing promises to be in all cases useful, in some cases little (if at all) less than necessary to justice, in the course and for the purpose of the suit.
But, howsoever necessary it may be at some stage or other of the cause, its employment to the exclusion of the meeting coram judice, where practicable, at the outset of the cause, will not be found necessary, or so much as conducive, to justice.
With reference to both points, viz. the demand (i. e. the particular nature and description of the service alleged to be due,) and the title (i. e. the ground of the demand in point of law and fact, as above explained,† ) mis-conceptions and consequent mis-statements on the part of the plaintiff (unblameable as well as blameable) are apt very frequently to arise.
In so far as the true nature and propriety of his demand depends upon his own personal cognizance of the facts in question, such incorrectnesses might, in case of due attention, or at least in case of consummate and perfect intelligence, on his part, be avoided. But, in so far as it depends upon the personal cognizance, and thence on the testimony, of an extraneous witness, the most consummate wisdom on the part of the suitor would not suffice to render the exclusion of them in any degree secure. Still less would be the chance of their being avoided, where the source of the necessary evidence is the reluctant bosom of the adverse party in the cause.
Delivered in the face of the adverse party, as well as in the presence of the judge, a mis-statement of that sort may receive its correction the next instant: mis-statements in any number may receive their correction at the same minute: delay, vexation, and expense, avoided altogether: nothing of which a dishonest adversary can take advantage, so as to render the fulfilment of a plaintiff’s demand either distant or precarious.
Let the discussion be carried on in writing—even suppose the defendant honest—a single mis-statement of this sort cannot receive its correction till the length of time alloted for the defendant to put in his plea is run out—a length to which there are no certain limits. But technical law (especially English law,) if it does not find a man dishonest, is almost sure to make him so, if he has anything to gain by dishonesty: under the tuition of his professional advisers, he accordingly lies by, and suffers the mis-statement to pass uncorrected: consequence to the unfortunate author, or rather utterer, of the mistake, loss of the suit—of that individual suit, at any rate: liberty or not, as it may happen, to bring on and go through with another, if so it be that he feels himself rich and bold enough.
What is necessary to justice is, that communications of this sort should respectively be made: what is not necessary is, that they should be committed to writing before they are made.
Pleadings in use, their modifications.
Pleadings (understand ready written, delivered in the form of writing in the first instance,) is the term employed to designate any masses of discourse delivered in that form, and purporting to contain allegations made by the parties on the occasion and in the course of the cause.
In English technical procedure, they are distinguished, according to the courts under the judicature of which they are delivered, into common-law pleadings, and equity pleadings.
In each court again they are distinguishable into general pleadings and special pleadings.
1. At common law. In a cause of the class called civil causes (i. e. not considered as criminal causes,) the first instrument is delivered on the plaintiff’s side, and is called a declaration.
In this instrument, the nature of the demand (i. e. of the service demanded at the hands of the judge) is supposed to be stated; and, as supposed or pretended (with what truth will presently be seen,) with a degree of certainty sufficient for the information of the defendant and the judge: and moreover, the title, on which the demand is founded, is or is not supposed to be stated with like certainty: supposed or not supposed to be thus stated, in here and there an instance it may perhaps be found to be so.*
In return for this, comes from the defendant’s side, if any thing, an instrument called the plea. Laying aside demurrer, by which the demand is disputed so far only as concerns the ground it rests on in point of law,—and setting aside also pleas in abatement, commonly having no other object than mere delay, and never having anything to do with the demand,—the other sort of pleas, pleas in bar to the action, are either general or special. A plea is called general, when the effect given to it is the putting an end to the line of altercation† in this mode: it states a point, which it calls upon the plaintiff to join in submitting to the decision of a jury: and admits not in general of any instrument on the part of the plaintiff, other than the signification of his consent to do so. To do this, is to bring on what is called the general issue: to plead a plea having this effect, is called, for shortness, pleading the general issue.‡
What, in all cases, it purports and is supposed to do, is, to express in general terms a denial of the justice of the plaintiff’s claim; at any rate in respect of fact—in respect of the whole, or some necessary part, of the mass of facts on which his demand is grounded; and eventually also in respect of law. What in many instances it really does (though without professing to do, and perhaps without being generally considered as doing,) is the giving him a right, at the trial, to oppose the demand by the proof of counter-facts: counter-facts, not only such as tend in disproof of the facts relied on by the plaintiff, but other facts of such a nature that the law has given to them the effect of establishing in the behalf of the defendant a counter-title, having the effect of destroying the force of the plaintiff’s title, even should the facts which constitute it be established.
A special plea,—though in one respect true or false as it happens, meant or not meant to be true as it happens,—is in another respect constantly true: and, so far as it is true, the information conveyed by it is material and useful.
The matter that might be true or false, as likewise meant to be true or meant to be false, as it happened, was the matter of fact asserted by the plea.
Of the information conveyed by it, that which was constantly true, was, in every case, neither more nor less than this: viz. that the matter of fact therein asserted was the matter of fact which the party, if he attempted to prove anything, intended to attempt to prove. It might happen, that, knowing it to be false and incapable of being proved, he did not, on delivering it, intend to attempt proving that or anything else: delay being the only purpose of his delivering it. But, if he intended to attempt proving anything, that and nothing else is what he (that is, his lawyer) must have intended to attempt to prove. Why? Because, by the established, and in this instance proper, practice, that and that alone is what at the trial he would be allowed to prove.
As to the general plea, that which brings on the general issue, it conveys no information at all: it conveys in no instance any more information of the ground or title on which the defendant means to rest his defence, than in most instances the declaration does of the ground or title on which the plaintiff means to rest his demand.
Thus stands the matter in regard to written pleadings. General pleading conveys no information, but there is an end to it: if any information is conveyed by pleading, it is by special pleading, but there is no end to it.
Compare this with the result of the meeting of the parties in the presence of the judge. Whatever information can be requisite, either to the parties or to the judge, may be obtained by it, and obtained at once.
II. In equity procedure, the first instrument delivered, and which of course is delivered by the plaintiff, is called the bill. It corresponds to the declaration at common law.
What the declaration pretends, or is pretended, to do, the bill really does: it states both demand and title. The declaration conveys its no-instruction in a discourse, the length of which, though too great by the whole amount, is, in comparison with that of a bill, for the most part moderate. To the length of a bill there are no bounds.
What it calls for, is, an answer. What it produces (not to speak of demurrers, as above) is most frequently an answer—not very unfrequently a plea: the answer, upon oath; the plea, not upon oath.
The plea is, in every instance, of the nature of the special plea above described in regard to pleadings at common law.
In equity, as at common law, pleadings used at one time to be drawn into length by altercation. In both instances, but more particularly in equity, the length of the chain has of late years been more or less contracted, by the opposing pressure of public indignation.
As to the range of the mendacity-licence under the two systems, it is already understood. In common-law pleadings, it has no exception: in equity pleadings, the instrument called the answer constitutes the only one.
Uses of this device, in conjunction with its auxiliary devices, to Judge and Co.
In practice, the profit produced to the partnership by the system of pleading, conducted as we see it, is a very complex mass: including in its composition the accumulated benefits produced by the four principal articles in the already enumerated list:—1. Blind fixation of times for operations; 2. Long intervals between sitting and sitting; 3. Principle of nullification; 4. Mendacity-licence: without reckoning the master-device, exclusion of parties from the judge’s presence, and other devices, the benefit of which, how considerable soever in itself, is, in the character of an auxiliary to the device here in question, less considerable, or less conspicuous.
That the nature and utility of so rich a compound may be the more clearly understood, let us endeavour to bring to light the separate virtue of each element taken by itself: what each has contributed to the common ends.
Taking this element for the basis, let us first observe its virtues when pure; and then, conceiving the several others as if necessarily added one after another (not that in fact they were so,) observe what additions it stands indebted for to the separate virtues of the several other elements so intimately and happily combined with it.
1. Had it stood by itself, the sources of the mischiefs produced by it to suitors, and thence of the advantages to the man of law, would have been confined to these,—viz. 1. Employment of writing in cases where it was improper, as being either useless, or preponderantly expensive; 2. Accumulation of surplusage.
2. From the blind fixation of times for judicial operations—from this device alone, added to that of unnecessary and excessive scribbling, might have been derived a further advantage, besides the advantages already spoken of as drawn from this same device. The suit being brought to a premature and fruitless end by the breach of this or that blind appointment, the use of the pleadings delivered in the course of that suit might have been deemed to have terminated along with it: consequence, if another suit, then a fresh series of pleadings; useful or useless, with or without surplusage, quantity of writing doubled.
3. Another addition is made to the virtues of the compound, by the application of the principle of nullification. In regard to instruments, the principle of nullification renders much the same sort of service, as is rendered by the blind fixation of times, in regard to operations. In both instances, the object was to make a pretence for causing to be done over again, business that had been done already. For this profitable reiteration, the non-performance of this or that operation at a given time formed one pretence; the supposed incongruity of this or that instrument formed another pretence.
4. Let us next observe the additional advantage derived from the excessive length of interval between sitting and sitting. The preceding device furnishing means—this furnishes motives.
Suppose the sittings from day to day, and offices as well as courts open alike at all times, the operation omitted one day might be performed the next: the instrument pronounced incompetent one day, might be amended or replaced the next.
In this mode the interest of Judge and Co. would indeed have been served well enough; but, both parties being materially vexed and pillaged, neither of them very materially served, Judge and Co. would have found them both complaining, neither joining with them to deliver the other into their hands. Means for plaguing the adversary would not have been wanting; but motives would have been inadequate.
Interpose the length of interval, institute terms and circuits, manufacture inevitable delay,—in proportion to the length of it the account of encouragement swells: the value of the delay rises in the joint ratio of the weight of the burthen from which a man is respited (or perhaps liberated,) and the length of the respite: to the dishonest debtor, to the dishonest usurper of another man’s right, to the malefactor in every stage of guilt, the commodity offered becomes more and more valuable, in proportion to the magnitude of the debt due, the value of the right usurpe, and (in so far as any proportion between delinquency and punishment is maintained) the mischievousness of the crime.
Without this device, the partnership would have stood alone, with the whole world against them: with all their power, they might have found an united people too many for them. Availing themselves of this device, and availing themselves of it to the extent we see and feel, they made a division among their adversaries—they made a coalition with one half of them: in every dishonest debtor, in every usurper of another’s right, in every malefactor, in every evil doer, they behold an eager customer, a purchaser, an accomplice.
5. The mendacity-licence may close, as it served to crown, the list. It contributed to the common end in two perfectly distinct ways:—
1. To the dishonest defendant it was of use, by affording an additional source of delay. The fund of true allegation has narrow limits: the fund of false allegation is inextinguishable. Let the length of time gained by an allegation on the defendant’s side be ever so great, say six months; without the benefit of the mendacity-licence, the advantage thus obtainable would be but inconsiderable. In multitudes of the causes that now take place, the demand is of a debt, and the debt justly due. But (the debt being by the supposition due,) on the part of the defendant, the case admits not of any allegation that shall be at the same time pertinent and true. Here is delay enough, if it could find customers, but nobody is in a condition to buy it: the oath, with its eventual punishment, the oath and the scrutiny, form a bar, which (a few rash adventurers excepted) excludes all malâ fide customers. Remove the bar, and you have as many customers, as you can find or make dishonest debtors.
From the defendant’s side, let us turn to the plaintiff’s. One of two classes of dishonest plaintiffs owes its existence to this device.
There stands one man, who, having a right (say to a sum of money due,) and being of course conscious of that right, is led by anger, or some project of advantage, to convert that right into an instrument of oppression. Men of this description have no need of the mendacity-licence. The vexation and expense produced by the other devices furnish him with the means.
But men thus circumstanced are in comparison but few. Establish the mendacity-licence, remove the bar set up by the obligation to speak truth, their number is without bounds.
The demon, by I forget what father of the church, was styled the ape of the Almighty. Conceive him in the character of the unrighteous judge (that is, under the fee-gathering and technical system, of any judge,) with the mendacity-licence in one hand, and the other open to receive the fees, addressing himself to rogues of all classes by two different invitations:—
“Come unto me, all ye that are heavy laden:” down with your money, out with your lies, and I will give you rest,—rest, peradventure for ever: rest for many and many a day, at any rate. Such is his address to dishonest debtors.
Come unto me, all ye who, seeing adversaries in your way, see them unable to defend themselves: come ye unto me; ye have no need of right, so ye bring lies and money: your money is my reward, your lies are my pretence. I will deliver your adversaries into your hand: numbering (adds the commentator) among your adversaries, all whose enemy you are, whether they are or are not your enemies. Such is his address to all such who may be engaged to tread in the paths of iniquity and oppression in the character of plaintiffs—plaintiffs, without being creditors.
Pretended use of this device,—certainty.
In the regular form of technical procedure, written pleadings are constantly required.
We have seen the information, which, under natural procedure, is given; given by the judicial meeting, given of course, and without professing it. Of this body of information, a small part only can by technical procedure be so much as professed to be given; and whatsoever professions of this kind are made, are false.
With regard to the nature of the service demanded, and the ground of the demand, it would be too much to say that no true information is ever given in any of the instruments comprised under the name of pleadings. Falsehood thus universal would not have been necessary, nor so much as in a superior degree subservient, to the purpose. What was sufficient was, that, along with the matter which, had it stood alone, would as far as it went have been instructive, so large a dose of falsehood was every where mixed, as was sufficient to destroy all confidence, all capacity of instruction, in such part of the mass as was true.
Certain Jews, travelling towards a seaport, met with a Christian, and asked him the way to it. He pointed along the shore, to a path which he knew would soon be covered by the tide: they struck into it, and were drowned. To the christianity of Lord Coke, by whom the stratagem is reported, it affords matter of exultation. “Thus perished,” says he, “these intidel Jews.”*
This stratagem may be received, if not as the model, at any rate as an emblem, of the policy pursued in the adjustment of the principles of pleading. Misconception is worse than no conception: false information is worse than none. Had the communicative Christian held his peace, the infidels might have escaped. When, from a source from which he had expected information, a man finds none, the effect of his disappointment is only to put him upon the look-out for another: false information, when acted upon, cuts a man off from true, and makes error sure.
The first object, therefore, was to produce misconception—misconception, and certain error in consequence. Unfortunately, the advantage derivable from this policy has its bounds. Information recognised to be false, becomes tantamount to ruin. The first gang of the infidels were drowned; but had a second been within sight, the stratagem would not have succeeded upon the second.
In pleadings, certainty is a qualification exacted with the utmost rigour. Certainty, a non-lawyer would say to himself, includes truth. No such thing. By certainty, though they have never said as much, they mean precision: precision, and nothing more. Precision is a quality which it is just as easy to give to falsehood as to truth: accordingly, so it be but precise, what is notoriously false is just as good as if it were true.
Precision and assuredness being two qualities which, consistently with truth, it is scarcely in the power of the plaintiff to give to the allegation by which, in the first instance, he states the nature and ground of his application to the judge,—the rational and obvious course is, to permit it in the first instance to be worded with that degree of generality and indecision, which cannot but accompany the conception entertained of it by the plaintiff in the interior of his mind.†
This course was too simple for the founders of English jurisprudence. Certainty (meaning, as before, precision)—certainty, it had occurred to them, was a very desirable property; as on all other occasions, so, in particular, on the occasion of all allegations and communications made for the purposes of justice. Certainty, therefore—nothing short of certainty, was what on this occasion they were determined to have. But the allegation you insist upon cannot at the same time be thus certain, and be true. Well then, if that be the case, we won’t insist upon its being true. In our law, in our morality, diffidence is unpardonable: as to falsehood, far from shocking us, it is on all occasions our delight. Fear nothing, plaintiff; falsehood shall be no prejudice to you, so it be advanced with confidence.
To men who could decide thus, all idea of utility must have been altogether out of sight: adherence to practice, adherence, and that of the blindest kind, was taken for the only rule. For every purpose of information, false information must in this case have been worse than none: the effect of it, if it had any, could only be to mislead. Yet this falsehood they were determined not only to receive from the plaintiff, but to force him to give.
Of the information required to be given, and given accordingly, in pleadings, what cannot be said is, that it is in every instance false: what may be said is, that it is in so many instances allowed to be false, that, upon the whole, it is of at least as little use as if it were always so.
Not content with requiring, at the hands of a plaintiff, allegations which, supposing it in his power to render them correct, might afford to the defendant information capable of being of service to him for the guidance of his defence,—might, in a word (in so far as it were true and correct,) be useful and instructive;—they have, on various occasions, insisted on a variety of allegations, partly false, partly irrelevant, partly absurd and unmeaning, and which, if true, could not be of any use. Why insist upon them? For what reason? Because the insertion of them had been customary. Violation of truth is a thing not worth avoiding: departure from custom, from precedent, would be intolerable.
If the judicial power had seconded the views of the legislative, the state of legislation on this ground would not have been thus deplorable. A time there was, in the reign of one of the Edwards, when the legislature, by an act which is still in force, conveyed to the respective courts (or rather to the chancellor) a subordinate power of legislation in this behalf. But power, legal power, is one thing; knowledge, intelligence, which is intellectual power (not to speak of inclination,) is a very different thing. What the legislator did convey to them, was legal power: what he knew not how to convey to them, was inclination: what he could not convey to them, was adequate intelligence: he had it not to give, they, if he had, were not in a condition to receive it. Had their stock of intelligence been ever so abundant, what should have been their inducement to employ it? The labour would have been their own; the benefit would have been reaped by their fellow-subjects: a part by suitors; the other part, and the most valuable (because reaped without expense,) by those whose good fortune it would be, by means of the information thus afforded them, to escape the misfortune of becoming suitors. Instead of pursuing the course prescribed to them, they took a course which was at once more commodious and more profitable. They left it to the plaintiff to word his own demand; and when worded by him, and worded at his peril, he learnt by the gain or loss of his cause, whether the wording of it was or was not to their taste. For themselves, they never thought anything about the matter: it was for him to declare, and at the peril of loss, and perhaps ruin, what those conceptions were, which, so far from having been declared and made known, had never been so much as formed.
The same proposition was capable of being expressed in a multitude of different ways, and perhaps with equal propriety in any one of the whole number. When the suitor came to give words to his claim, what was the inquiry of the judge? Not whether the wording employed by the plaintiff was capable of answering the purpose, but whether they were the exact words which he himself (the judge) would have employed. If there was a hair’s-breadth difference, so much the worse for the plaintiff: his cause was gone.
Was there any possible means of safety for an unfortunate, or perhaps obnoxious, suitor? Oftentimes it has appeared to me that there was none. The claim was alike capable of being preferred in either of two ways: the plaintiff pitched upon the first, the judge upon the second: had the plaintiff employed the second, the judge would have stamped his exclusive approbation upon the first.
To the non-professional reader, a few specimens of what lawyers call certainty may be neither useless nor unacceptable:—
A specific thing (if you want to get it of a man, or he wants to get it of you,) belongs to the class of moveables, or to the class of immoveables.
The first instrument by which any information is pretended to be conveyed, is the declaration—the first instrument delivered in the plaintiff’s name. Under natural procedure, at the first judicial meeting (be it a moveable thing, or a thing immoveable, that is demanded,) what the thing is that is demanded, and on what ground it is demanded, would (amongst so many other articles of information that might eventually be of use) come out of course, with every degree of certainty that was at once requisite and practicable.
How is it under technical procedure? If it is a horse your adversary wants of you, the action is called an action of trover, and the declaration a declaration in trover. To state, and with truth, what it was that was wanted of you, viz. that it was a horse, could not well be avoided: but as to the ground of the demand, the statement under this head must always indeed be precise, but (except in a case which scarce ever happens) it must as certainly be false. It must be not only false, but impertinent. Had it been necessary for him to say how the animal became his, this, in case of his demands being unjust, might have been of use to you. This, accordingly, is what he is excused from saying: what he is obliged to say is, how it came to be yours: that is, in your possession for the time (though, if his demand be well grounded, you have no permanent right to it.) You found the horse: this is what he would always be forced to say, even were he to know that you bought it, or that he lent it to you.
Where a thing immoveable is the subject of the demand, it is still worse. Not only the statement of the title is never given, but, though a description of the subject of the demand is always given, it is never true. If it is one acre that a man wants of you, his lawyer mentions twenty acres or two hundred—any number that he pleases. As to the title, the place of instruction is here again supplied by falsehood and impertinencies. A foolish story is told about somebody called Doe, that was turned out by somebody called Roe—an imaginary man by another,—as anybody may see in Blackstone.*
Thereupon, to work the lawyers go, upon the ground of this superficially silly, fundamentally wicked, story: justice the pretence, pillage the object and result, mendacity the means.
Are you really at a loss to know what it is the man wants of you? The information pretended to be given by your adversary being all a sham,—if you want any real information, it is for you, the defendant, to apply for it. Your lawyer makes a motion for it: so much more business: a cause within a cause. Here we see the use of the false information: to make a man pay so much the more if he would have true.
Where ignorance or doubt is the real state of the mind, assertion of knowledge is mendacity. Who is there that does not see this? What lawyer can avoid seeing it? Every degree of persuasion, short of that which is expressed by the word knowledge, is proscribed in pleading: it would be want of certainty. Mendacity, therefore, on the part of every snitor whose degree of persuasion falls short of the highest, is called for and compelled. Moral vice is made into a legal duty: and a duty for the breach of which there is no pardon.
Wherever a man speaks in the disjunctive, a sort of doubt is confessed: which is a sort of ignorance. Accordingly, the disjunctive conjunction or is proscribed in pleading. The word and is exacted instead of it. Why? Because and is always certain, though it be always false.
Half a dozen, or thereabouts, is the number of different titles, upon one or other of which, or perhaps sometimes two or more at a time, a demand of money due is most frequently apt to be grounded: work and labour done, goods sold and delivered, money lent without security, money lent on note of hand, and so forth. You sold the defendant a horse for £20, and he gave you his note of hand for it. It is matter of doubt to you, which fact you may be best able to prove: the sale of the horse, or his signature of the note. At the suggestion of truth and common sense, would you say that the man owes you £20,—viz. either upon the score of the sale, or upon the score of the note? You would lose your money. What they make you do is, to demand two debts of £20 each: one due upon the sale, the other upon the note.
In the case just put, these two demands might serve. But the practice is, where one debt is due, to claim half a dozen or more, as above; each to the same amount; each with a separate count (that is the word) to claim it. The more counts the more writing: the more writing, the more fees.
Whatever be the demand, in general a declaration contains divers counts: stories, of which one may perhaps be true, most commonly all but one false.
Thereupon, at the trial, the jury being agreed, and ready to give their verdict for you the plaintiff,—doubts upon doubts, on which of all these counts to take it: the jury, who know nothing about counts, waiting in gaping admiration to know what decision, which is not theirs, shall be given to the world for theirs. Take your verdict on a wrong count, you lose it: saving always the privilege of taking your chance (at the twelve-month’s end) for another such verdict, which may again be on a wrong count: and so toties quoties.
Under natural procedure, at the first judidicial meeting,—in a court of conscience for example (for parliament, whensoever it shall be its pleasure, knows where conscience is to be found,)—all this would have been settled at once, and upon the best evidence.
Such being the case with the most common sorts of demand that could be found,—suits individually counted, in perhaps nineteen out of twenty,—to pursue the inquiry through the list of the less common ones, would be as useless as it would be endless. Such the information destined for the suitors: such the pretended, and not intended, use to the suitors; such the real and intended use, to the judges and their partners.
All this lies open to every eye that can endure to look upon it: all this, though in Blackstone’s colouring, is pourtrayed even by Blackstone. Such is the ground on which he builds the claim of his firm to the veneration and gratitude of mankind!
All this for ever before our eyes, pleadings coming in question, judges talk of certainty. To all this certainty, know they, or know they not, the non-necessity of truth? If yes, what dishonesty! if no, what ignorance!
Pretended study,—to prevent surprises: that, at the trial, both parties may come prepared. Real study,—to produce surprises: that, sometimes by the production of the surprise, sometimes by the apprehension of it, business may be made.
By the judicial meeting, surprise would really be prevented: everything that was ever called surprise. Who, except by shutting his eyes, or turning them aside, can avoid seeing it?
Lawyer.—The pleadings giving, according to you, no information, or worse than none, how is it that surprises are not perpetual? How is it that parties ever come prepared?
Non-Lawyer.—I did not say that no information is ever to be got from your pleadings; such consistency, I have observed already, would be of no use to you, but the contrary. What I mean to say is, that in general it is not from that source that the information a man stands in need of for the support of a just cause, is obtained. Whence, then, is it obtained? From the previous transactions between the parties. The case is comparatively rare, in which, before the suit begins, the defendant is not pretty well informed what it is the plaintiff wants of him, and on what grounds it is that he demands it: so, on the other hand, the plaintiff, on what grounds (if on any) the defendant means to dispute it.
But, where information is by either party really wanted, generally speaking, he has this alternative: either he applies for it by motion (a cause within a cause,) getting it, or not getting it: or he does without it as well as he can.*
Lawyer.—You will admit, at any rate, that information is afforded, as often as the pleading goes to the length of special pleading.
Non-Lawyer.—Agreed. You on your part will have the goodness to admit four things: 1. That the information so given, being given under the mendacity-licence, need never have a syllable of truth in it; 2. That the more there is of it, the more business; 3. That, where there does happen to be any truth in it, the effect of it is liable to be destroyed by nullities, against which no human prudence is sufficient to secure it; 4. And that, at the end of twelve, or fifteen, or twenty, months, it is not in the power of your special pleading, be the chain of it ever so long, to give half the information (meaning true and useful information) that, at the first judicial meeting, would be given in as many minutes.
[* ]Where punishment or satisfaction at the charge of the defendant is the service demanded, the list of collative events will be the list of criminative circumstances attached to the definition of the offence; ablative, or what are equivalent to ablative events, will be the list of justificative, and (if any) that of exemptive, circumstances.
[* ]Thus in English procedure, in the case of distress, on one hand, and avowry on the other, distrainer and avower are recognised as acting, each of them, in the character of plaintiff. See Comyn’s Dig. Art. Pleader.
[† ]Supra, Chap. VI. Exclusion of Parties.
[* ]Examples:—Debt on contract, bond, demand, recognizance, or judgment.
[† ]Comyn (Edit. 1802,) Pleader, p. 387.
[‡ ]General issues given by Blackstone, but given only as examples, are—not guilty, non assumpsit, nil debet, non est factum, nul tort (in Gilbert on Evidence, nul tiel tort.) His account would have been more instructive, had he completed the list of these general pleas, stating all along by their side the species of action to which they are respectively applicable. In Gilbert’s book on Evidence, three other pleas present themselves in the character of candidates at least for admission into the list: viz. 1. Non assumpsit intra sex annos; 2. Solvit ad diem; 3. Nullum fecit vastum; to which may perhaps be added, nul disseisin, put in opposition to nul tiel tort.—Not guilty, Gilbert applies to three civil suits,—viz. trespass, trover, and ejectment: besides criminal suits.
[* ]The facts, as reported in the 2d Inst. 506-8, are shortly these:—Edward the First, in consideration of a fifteenth granted to him by the Parliament, consented to the passing of the 18 Ed. I., which forbade any Jew to take usury upon any lands, rents, or other things. The consequence was, that more than 15,000 Jews left the kingdom. The richest of them embarked with their treasures in a large ship, and when they had got beyond Queenborough, the master and some of the sailors agreed to destroy their passengers by a stratagem. They cast anchor in a place, where the ship at the ebb was left on the dry sands. The master then enticed the Jews to walk with him, fortheir recreation, and when he perceived the tide coming in, he stole away from them, and got back to the ship in safety. The tide overtook the Jews, and as all help was refused them, they were drowned. The master and his confederates were indicted for murder, convicted, and hanged. At the end of the case, Coke says, “And hereby it appeareth that Divine ultion did follow these cruel Jews, wicked and wretched men; for the debts of cruelty are seldom unpaid.” The case is also referred to in 3 Inst. 50.—Ed.
[† ]At the hands of another individual, and, in his default, at the hands of the judge, a man may have a right to a service—to a service of any degree of importance,—and yet, in the first instance, antecedently to an explanation (to an explanation which cannot take place without a meeting of the parties in the presence of the judge,) not a single circumstance may be capable of being averred with precision, consistently with truth:—not the quality and quantity of the service, the time at which it became due, the place at which it should have been rendered, the title on which the right to it is grounded (including the numerous list of collative events, one or other of which must be affirmed, and of ablative events, all of which must be negatived, with all their several circumstances of time, place, and individual things and persons concerned:) no, nor so much as, among two or more persons, the individual by whom, or at the charge of whom, the service (payment of money, suppose) should have been rendered. All depends upon information, which, by the assistance of the judge, may or may not be obtainable, but which, without that assistance (that is to say, at the commencement of the suit,) is plainly unobtainable.
[* ]B. iii. Chap. 11.
[* ]So utterly unfit is the initial document called the declaration, in the opinion of judges themselves, for any such purpose as that of informing the defendant what claim it is that is made upon him,—that a practice has grown up of compelling the plaintiff to give in, together with the declaration, another document, called a bill of particulars, which shall really specify, what the declaration pretends to specify, the nature of the demand. According to the judges, then, who have introduced this practice, the declaration is waste paper: utterly useless with reference to the purpose for which it is pretended to be meant; productive only of a mass of expense to the defendant. The bill of particulars really giving the information, all the information that is wanted,—the question, why the declaration is not abolished, is a question for those who are capable of penetrating the mysteries of the judicial conscience.—Editor.