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CHAPTER XVII.: TWELFTH DEVICE—PRINCIPLE OF JARGON, OR JARGONIZATION. - 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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TWELFTH DEVICE—PRINCIPLE OF JARGON, OR JARGONIZATION.
The object and use of language (meaning ordinary language,) is to convey information: information which, in some way or other, shall be of use: for which purpose (except in here and there a case, too extraordinary to present on this occasion a claim to notice,) it must be true.
The object and use of lawyers’ language is twofold: partly to prevent information from being conveyed to certain descriptions of persons; partly to cause such information to be conveyed to them as shall be false, or at any rate fallacious: to secure habitual ignorance, or produce occasional misconception.
Misconception, as will be seen, is on those occasions a sort of improvement upon ignorance: all the purposes of ignorance are served by it, but in a more exquisite degree. Particular misconception is the occasional result of general and habitual ignorance. Its tendency is to rivet the chains with which the public mind has been loaded by ignorance.
All those peculiarities whereby the language made or employed by lawyers is conducive to this effect, may be comprehended under the general name of jargon: law-jargon.
Various are the shapes in which jargon is capable of making its appearance:—1. Foreign language, dead or living; 2. Obsolete language; 3. Technical language undefined; 4. Nonsense; 5. Fiction; 6. Ordinary language perverted. None but what may be made subservient to the general end: one or another, this or that one of them, is to be employed, as occasion serves: but, that the use of them is not altogether indifferent, will be seen as we advance.
Each has its use: each was to be made the most of, as occasion served. Each has its use: some more than others, as will be seen. Anything will serve, so it be repugnant in any way to the ends of language.
A lot of jargon may consist either of propositions, one or more, or of a single term. In less compass than that of a proposition, neither truth nor falsehood, wisdom nor folly, sense nor nonsense, can be conveyed. But there are single terms (such is their force and virtue) that are sufficient, any one of them of itself, to infuse the qualities of darkness or nonsense into this or that proposition, or into almost any proposition of which they make a part. Such are the terms felony, larceny, corruption of blood, attaint, common bail (meaning no bail at all;) vi et armis, force and arms (applied to forgery, &c.)
Law being the subject, whatever tends to keep men in ignorance, is of use to lawyers: but the beneficial effects of the ignorance assume a somewhat different complexion, according to the description of the person in whom the endowment is considered as being liable to reside:—1. The people at large in the quality of suitors; 2. The legislator; or 3. Men of law themselves.
I. On the part of the people at large, it makes business, in three ways:—
1. From ignorance of the law in criminali, comes delinquency; from delinquency, prosecution.
2. In non-criminali, if a man, being ignorant, is conscious of his being so, and knows not how to act with safety, he applies to lawyers. Hence comes an appropriate branch of made business, the trade of the law-adviser or opinionist: the opinion trade. If, being ignorant, he fancies himself sufficiently knowing, not being aware of the traps that have been laid for him, so much the better. He then leaves something undone, which he ought to have done, or does something which he ought not to have done: and litigation, with loss, or danger of loss of right, or of falling under some burthensome obligation, is the consequence. Business in the way of assistance, previous business in the way of advice.
3. From ignorance in respect of the adjective branch of the law, the law of procedure (in criminali, and more especially in non criminali,) comes the necessity of having recourse to the lawyers, in unlimited numbers, in the character of assistants, or (what is much better) of substitutes. Business in the way of assistance, with ditto in the way of advice, step after step, at as many steps as possible.
Making business is not enough, without securing against diminution the quantity of business, that is, the mass of profit, habitually made.
In proportion as business is made, the people suffer: in proportion as the worms multiply and fatten, the patient faints. Did the people know that the sufferings they experience at the hands of the judge and his confederates are in so large a proportion factitious, they would be apt to cry out; their outcries would be troublesome, and might lead to relief.
Against this danger, the use of jargon is considerable. It impresses them with awe: it forms a species of the sublime. Omne ignotum pro magnifico est. Viewed through this medium, every object assumes such shapes and colours as could be wished. Factitious vexation, expense, and delay, become natural and inevitable: nonsense becomes science, fiaud and extortion, purity: their tormentors and plunderers become their kind protectors and best friends.
It is not by its quality alone, that jargon lends its service to the advancement of the common cause; by the very quantity of it, it renders at least equal service. Judicial formulary, conveyance, whatever be the nature of the instrument, care has been taken that each particle of sense shall be drowned in a deluge of words. By the quantity of profit, the particular purpose of the individual lawyer, on each individual occasion, is served;* by the contribution made to the immensity and incomprehensibility of the chaos of which it forms a part, the interests of the whole partnership receive a lasting benefit.
It is in the demesne of jurisprudential law, that the service rendered by jargon, in virtue of its quantity, is rendered in the most transcendant degree. Where statutory law would create certainty by a word, jurisprudential, with its argumentations, gives uncertainty in a volume.
But even in the composition of statute law, the treacherous assistance of the professional lawyer has, by a disastrous necessity, been forced upon the legislator. Words being heaped together at so much a dozen, the consequence is alike necessary and obvious. In this case, too, lest the virtues of tautology and surplus-age should not be sufficient, the aid of disorder, and a religious exclusion of those helps to elucidation with which no other species of composition is unprovided, have been called in and carefully preserved. The details of this policy would diverge too far from the present purpose.†
II. On the part of the legislator, the service rendered by jargon to the partnership admits of some diversifications: though all resolvable into this, viz. either adding to the quantity of business (i. e. to the mass of profit extractible from the mass of business,) or protecting it against diminution from that commanding source.
The interest of the legislator, in as far as it has been brought into coincidence with his duty, is, on this as on all other grounds, the same as that of the people: the ends of the legislator are no other than the ends of justice. Having the power in his hands, he will of course (unless in so far as he can be corrupted, or drawn from his duty, or led into mistakes in the exercise of it) take effectual care that the mass of made-business, and thence the mass of lawyers’ profit, be as small as possible.
Towards preventing him from exerting his power in this way, the services of jargon are in the highest degree important:—
1. By the heaps of filth, moral and intellectual, of which it is composed, it becomes a perpetual source of disgust, and serves as a perpetual repellent to the eye of scrutiny. “As to that cell there, sir, you must not think of looking into it: you will catch something bad: the smell will be too much for you.” Jailor’s quarte and tierce in fencing against Howard. Jails have had their Howard: jurisprudence waits for one.
2. It converts the whole field of legislation into a thicket, impenetrable to the legislator’s eye: when he does work, he works blindfold: he works at random, at the hazard of creating more mischief than he cures. As often as this happens, then comes the lawyer’s triumph: “You would be meddling; see now the consequence!”
That sort and degree of knowledge which the subject (dealt with as it has been) admits of, is now an object of monopoly in the hands of the partnership. The stock of endowments such as the legislator must possess to do his duty, stands distributed upon a plan the most commodious imaginable. On the part of the man of law,—what there is of knowledge; power to be had for asking, were it but convenient for him to ask for it; inclination, acting in a direction directly opposite to that in which it must act, to prompt a man to apply the knowledge and power to any other than a bad purpose. On the part of the legislator,—power, and, for the most part, inclination: but of knowledge, appropriate and necessary knowledge, so deplorable a deficiency, as divests the other endowments of all force and virtue.
But the mass and efficiency of jargon is continually upon the increase. In the way of reform, and previous necessary information, whatever may be the degree of difficulty one day, exists with increase the next. Every day, the more urgent the demand,—the more hopeless the supply.
The partnership look on and triumph. Soon, if not already, their language will be in this tone unanimous:—Yes, so long as it was possible, a change might have been useful; but, whatever it may have been, it is now impossible: human faculties are not equal to it.
From different temperaments come different tones. Those (if such there be) who still fear the possibility, will deny the use: the use may be admitted as a point not worth disputing, by those who look to the impossibility with an eye of confidence.
Admit the impossibility, they will allow you the expediency without scruple. The praise of candour is got by the admission, and nothing lost by it. The plea of impossibility has already become plausible; a little while, and it will become real.
III. In their intercourse one with another, jargon has again its use. It serves them as a bond of union: it serves them, at every word, to remind them of that common interest, by which they are made friends to one another, enemies to the rest of mankind.
Co-operation is thus secured—concert rendered unnecessary. Concert would be conspiracy: co-operation without concert produces all the advantage without any of the danger.
If jargon nurses ignorance among those who employ it, as well as among those at whose expense it is used, so much the better. The knowledge which is of use to the man of law, is not positive knowledge, but comparative: nor even of that the reality, but the appearance: of the reality just so much, and no more, as is necessary to keep up the appearance. When the suitor, a non-lawyer, makes a mistake about law, the mischief falls upon his own head. When a lawyer makes a mistake, the mischief falls upon the suitor, or the client: care has been taken that it shall do so.* Under these circumstances, superior knowledge in superintending stations being out of the question, nothing is so convenient as genuine ignorance: unintentional mistakes cost less to make than intentional ones.
Between the veterans and the tyros, the harmony of interests is not in this point perhaps altogether perfect; but such minutiæ belong not to this place.
Nursing ignorance, jargon serves at the same time for a screen to it. It does more: over a head of ignorance it puts a mask, exhibiting a face of science. It is the dissertation upon Sanchoniathan, presented to the Vicar of Wakefield.
This is among the circumstances, that, under the technical system, concur in rendering quirks so pleasant and convenient to the thorough-bred judge. He feels a degree of awkwardness where a decision is to be given upon the merits. If there be any statute law in the case, the letter of the law is a sort of check to him. Statute or no statute, the common sense of mankind operates at any rate as a check, and that a troublesome one. On this ground, decision, too, if it is to be on the right side, is apt now and then to require faculties, which, whatever they may have been at first, have been enfeebled by habitual diet-drinks from the fountain of jurisprudence. If a man is wrong, he exposes himself: if he is right, he gains little praise, compared with what might be got by jargon or hypocrisy: every simpleton is ready to say—What is there in all that? ’Tis just what I should have done myself. Seated in a chair, in the character of a justice of the peace, with common language in his mouth, a common coat upon his back, and no hair upon his head but his own, Solomon himself would not gain the praise of wisdom. Seated on a woolsack, Bartholon would pass muster, while talking about entering appearances, or filing common bail, clothed in purple and fine linen, artificial hair and ermine.
Every sham science, of which there are so many, makes to itself a jargon, to serve for a cover to its nothingness, and, if wicked, to its wickedness: alchemy, palmistry, magic, judicial astrology, technical jurisprudence. To unlicensed depredators, their own technical language, the cant or flash language, is of use, not only as a cover, but as a bond of union. Lawyers’ cant, besides serving them as a cover and as a bond of union, serves them as an instrument, an iron crow or a pick-lock key, for collecting plunder in cases in which otherwise it could not be collected: for applying the principle of nullification, in many a case in which it could not otherwise have been applied.
The best of all good old times, was when the fate of Englishmen was disposed of in French, and in a something that was called Latin. For having been once in use, language, however, is not much the worse, so it be of use no longer. The antiquated notation of time suffices of itself to throw a veil of mystery over the system of procedure. Martin and Hilary, saints forgotten by devotees, are still of use to lawyers. How many a man has been ruined, because his lawyer made a mistake, designed or undesigned, in reckoning by the almanack! First of January, second of January, and so forth,—where is the science there? Not a child of four years old that does not understand it. Octaves, quindeeims, and morrows of All Souls, St Martin, St Hilary, the Purification, Easter day, the Ascension, and the Holy Trinity; Essoign day, day of Exception, Reforma Brevium day, day of Appearance—alias Quarto die post—alias Dies amoris; there you have a science. Terms, Michaelmas, Hilary, Easter, and Trinity, each of them about thirty days, no one of them more than one day; there you have not only a science, but a mystery: do as the devils do, believe and tremble.
Jargon pregnant with misconception, is better than jargon preservative of simple ignorance. The sense of subjection, the humiliation, the self-distrust, the despair, on the part of the non-lawyer, the client, the suitor, is more complete.
Jargon which takes a word that is in every man’s mouth, and uses it in a sense in which no man ever used it, is better than a jargon made out of foreign, antiquated, technical, or other hard words. Every man knows what common means: most men even know what it means when opposed to special, and applied to a jury. Apply it now to bail, and take order about bail, you know how.—Creditor. My debtor is going off: he must be held to bail.—Lawyer. That he is already.—Creditor. Who are they?—Lawyer. Common bail; John Doe, and Richard Roe.—Applied to bail, common signifies none. (You will not forget to charge for these buckram bail, as if they were real ones.) Besides the profit, there is a degree of fun in this. You pick men’s pockets, while you laugh at them for their patience. Kick them, or spit in their faces, you cannot; because it is a rule with you never to see their faces: but this comes next to it.
The more pointed and solemn the assurance given, the better; so it be but violated.
There was genius in writing word to a man, Appear before me on such a day,—and then punishing him for appearing accordingly, instead of employing an attorney. There was still more genius in saying, Appear in person, and then punishing him as before. He had learnt that when a lawyer says, appear, what he means by it is extortion or deceit: but seeing such words added as personal, or in person, he thought he might trust them for once; that it was their intention for once to be sincere. He took it for a flag of truce: but, so savage is the hostility of this coalition, there is no trusting to its flags of truce.
Advice to lawyers:—When non-lawyers plague you (as now and then they will) about reforms, and something must be done to quiet them, they can never refuse you a hand in the business; and it will be your part to take care that what is done shall be to little or no purpose. When you have done what can be done towards spoiling the plan, you make your mock at it: you throw ridicule on that reform, and through that on all reforms, and so you have your revenge. Thus Blackstone triumphed, when, upon the translation of the lawyer’s dog-Latin scriptures into a sort of English, the darkness was but the more visible.
Another and a capital use rendered by jargon to the partnership, is the extensive possession it secures to the professional branch, of the emoluments; the comparative leisure, the power, and the honours, attached to the commanding orders of the official branch,—attached to judicial offices.
Proportioned to the advantage thus gained to the natural and irreconcilable enemies of the community, is the mischief done to the interest of the community itself. Justice is administered by no other hands than those which, by interest and interest-born prejudice, have been trained up in a predilection for injustice.
A twenty or thirty years service among the priestesses of Venus, a qualification sine quâ non for admission into the college of vestals!
What is the proper nursery for judges to fill the highest and most important of judicial offices? Common sense (instructed by universal practice in all other lines of service) answers,—Service in an inferior office in the same line.
What is the proper school for a judge who fills an inferior office? A course of attendance at the feet of a Gamaliel actually in office.
[* ]Marriage-settlement:—property to be settled, twenty-eight thousand pounds: costs of settlement two thousand seven hundred pounds. I have this from a conveyancer of the first eminence, himself concerned in it.
[† ]The style of the British statutes is a disgrace to the nation in the eyes of Europe. Opening a book of these laws in one hand, open a book of French, of Austrian, of Prussian statute law in the other: without understanding a syllable of any one of the languages, a man may see enough to satisfy him, that, in the structure of the three last, the ends of language are aimed at; in that of the other, ends opposite to the ends of language. (Vide Nomography, in Vol. III. p. 231.)
[* ]Suprà, Chap. XIV. Nullification.