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CHAPTER XVIII.: THIRTEENTH DEVICE—FICTION. - 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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What you have been doing by the fiction,—could you, or could you not, have done it without the fiction? If not, your fiction is a wicked lie: if yes, a foolish one.
Such is the dilemma. Lawyer! escape from it if you can.
But no: the distinction is but in appearance; folly none in either case, except in so far as all wickedness is folly: mischievous in every case the effect; in every case wicked, if it had any, the purpose.
Fiction of use to justice? Exactly as swindling is to trade.
The fictions with which the substantive branch of the law has been fouled, belong not to the design of the present work.
The fictions by which, in so much greater abundance, the adjective branch is polluted, may be distinguished in the first instance into two great classes: the falsehoods which the judges are in the habit of uttering, by themselves, or by the officers under their direction; and the falsehoods which they cause to be uttered by the suitors.
1. Take for the first case, as one of the most striking ones, that of common recoveries;* though it belongs to the substantive branch with as much propriety at least as to the adjective.
The judges formed a plan for making business, by enabling the proprietors of entailed estates to cheat their heirs. The king, as is said, through policy, or perhaps through negligence, gave them their own way. A sham action was brought against the proprietor: the proprietor, by direction of the judges, named a creature of theirs, the crier of their court, a man worth nothing, as the man of whom he had bought the land, and who stood bound to prove the title to it a good one, or, on failure, to give him another estate of equal value. The father lost the land; that is, got the power of doing with it what he pleased: but no injury was done to the children, because the father, and through him, they, his children, got the crier’s land instead of it. This the judges, receiving their fees, never failed to testify: it is entered upon the record. A record is the very tabernacle of truth: let it say what it will, no man is permitted to dispute the truth of it, or of any part of it.
Sham equivalent, as above, to heirs; sham security to defendants; sham security to plaintiffs; sham notices to both, and more especially to defendants; sham pretences to one another for cheating one another of business. To give the list and the explanation of all those shams, with the consequences drawn from them, would be to heap volume upon volume. It is of such matter that the system of procedure, as displayed in the books of practice, is composed.
Such is the matter of a record: everything is sham that finds its way into that receptacle, as everything is foul that finds its way out of Fleet-ditch into the Thames.
The spice or two of truth, buried here and there amidst those heaps of falsehood, serve but to make the compost the richer, and the better adapted to the purposes of misconception and deception; in a word, to the service of the ends of judicature. They serve to favour the operation of the double-fountain principle: which see.
2. Take next the case of sham bail, and sham pledges of prosecution.
In the infancy of the technical system of English procedure, the performance, on the part of the plaintiff, of an operation called by the name of finding security, was established in the character of a condition precedent to the subjecting a man, in the character of defendant, to make answer in any way to a judicial demand. The security was real, but eventual only, and not deposititious: a pair of friends binding themselves (though by promise only, and not, as in case of pawning goods, by actual deposit,) to pay a sum of money, preliquidated or not preliquidated, certain or uncertain, in case the plaintiff should lose his cause. Pledges of prosecution was the name given to these friends.*
No such pledges are in any case found; a certificate of their being found is in every case given; and the certificate is among the countless host of lies, notorious lies, without which English judges know not how to administer what in their language goes by the name of justice.
So in the case of sham bail, on the part of the defendant. The defendant pays an attorney, who pays an officer of the court for making, in one of the books of the court, an entry, importing that on such a day two persons bound themselves to stand as sureties for the defendant; undertaking, in the event of his losing his cause, and being ordered to comply with the plaintiff’s pecuniary demand, either to pay the money for the defendant, or to render his body up to prison. No such engagement has been taken by anybody.—The persons spoken of as having taken it, are not real persons, but imaginary persons; a pair of names always the same, John Doe and Richard Roe.†
The impossibility that this vile lie should be of use to anybody but the inventors and utterers of it, and their confederates, is too manifest to be rendered more so by anything that can be said of it.
In the original institution of this security, the “pledges of prosecution,” as little regard was paid to the ends of justice, as in the subsequent evasion of it.
Had any regard been paid to the ends of justice, the judge, were it only for the purpose of ascertaining what security the nature of the case required, and what it was in the plaintiff’s power to give, would have examined him vivâ voce: not to speak of the many other indispensable purposes to which the same operation would have been subservient. Instead of that, this part of the duty was turned over to a subordinate officer, of which there was but one for a whole county, the sheriff. This officer, either he was personally responsible for the eventual justiciability and solvency of those pledges, or he was not. Responsible for them, for twice as many persons as there were actions brought in a year within a whole county, he would have been continually exposed to almost certain ruin. Not responsible for them, two secure instruments of injustice were lodged in his hands: for the acts of this subordinate officer were not, like those of his superiors, the judges, exposed to the scrutiny of the public eye. One was, to consult his own ease and safety, by reporting the impossibility of finding two such pledges. The other was, to make the like report for the benefit of his friends; including all such persons as, for the convenience of getting rid of troublesome demands of all sorts, might find their account in purchasing that distinction at his own price.
Not such, however, were the considerations which dictated the evasion which ensued. Of the due application of this security (had it been susceptible of any useful application in such hands,) the effect would have been the depriving the justice-shop, the efficina justitiæ,* of a number of good customers. For, to a man’s being a good customer to the lawyers of all sorts, so long as the suit lasted (which was as long as they could contrive to make it last,) it was not necessary that the demand should have any merits to support it, or the demandant the value of a farthing left in his purse, to pay, in the name of satisfaction, to an injured defendant at the end of it. On the part of the judge, any such inquiry (it may be said) would have been impracticable. Nothing more easy to say; nor anything more true: because, from the first of their opening, it had been the care of those great shops to put down all the little ones. Without hearing all suitors in the first instance, justice, it is true, could not be done to any of them: and true indeed it was, that for three or four sets of judges, sitting in Westminster Hall, to hear as many persons in the character of suitors as all England could supply, has from first to last been physically impossible. But what was possible, and not only possible but easy, was, from the whole of that extent of country (and from ten times that extent, had there been as much,) to receive fees; giving, in return for those fees, scraps of written lawyer’s slang in due form of law.
The plea of impossibility offers itself at every step, in justification of injustice in all its forms. The plea is as true, as so many other pleas are false: but the impossibility is, in each instance, the work, not of nature, but of the judge.
No man (says the man of law, in one of his maxims) ought to take advantage of his own wrong. What! no man? no lawyer—no judge, take advantage of his own wrong? when, under the system of procedure which has had the judges for its authors, it is thus out of their own wrong, and nothing else, that an apology, or anything in the form of apology, is, or can ever be cooked up? What! no man? Yes; no man: subject of course to the exception, which, when anything wrong is forbidden by us, is constantly to be understood; viz. an exception in favour of ourselves, and such other persons to whom it is our pleasure to impart our licence.
True it is that under this system of yours it is impossible, without exception impossible, ever to do justice. Nothing was ever more true. But the impossibility, whence comes it? From yourselves. First you make the impossibility, and then you plead it. And wherefore was it made, but that it might be pleaded?
3. Business-stealing, or jurisdiction-stealing falsehoods.
King’s Bench stole business from Common Pleas: Common Pleas stole it back again from King’s Bench. Falsehood, avowed falsehood, was their common instrument. B. R. let off one lie; C. B. answered it by another.† The battle is in all the books.‡
Quoth client to attorney. Such a one has forged a bond upon me. Quoth attorney to client. Don’t dispute it; forge a release. Vero o ben trovato: this advice is also in the books. If true, it shows that it was not for nothing that so good a scholar had been to the great school, the school kept by the king himself at Westminister. Regis ad exemplum: such was the pattern followed by him. Ingenuas didicisse fideliter artes, Emollit mores. . . . .
Vide the case of the story-telling club in Joe Miller. Per Archer, cabbage as big as St. Paul’s: per Merryman, boiler as big as St. Paul’s church-yard. President—Cui bono? Merryman—to boil brother Archer’s cabbage.
Thief to catch thief, fraud to combat fraud, lie to answer lie. Every criminal uses the weapon he is most practised in the use of: the bull uses his horns, the tiger his claws, the rattle-snake his fangs, the technical lawyer his lies. Unlicensed thieves use picklock keys: licensed thieves use fictions.
Unwilling to be left behind, Exchequer stole with both hands at once, stole from both its neighbours. In design, they were all three much upon a par: but as to success, whatever may have been the cause, the thefts of the Exchequer have been little more than gleaning.
Among the falsehoods which judges caused to be uttered by the suitors, a division may again be made, into those which they contented themselves with encouraging, and those which they compelled the suitors to utter. In the one case, the powers of reward alone were employed in the generation of the lie: in the other case, the irresistible force of punishment is called in to secure it.
A sample of the simply permitted lies has been already seen, in the instance of the written pleadings in general, and more especially of special pleading at common law, and the initiative pleadings called bills in equity. The habitual utterance of these falsehoods is exactly commensurate and co-extensive with the range of the mendacity-licence above mentioned.
These exercises of professional genius and morality, if they do not in common parlance come under the head of fictions, come not the less under the head of falsehoods; falsehoods hatched in the same heads, and in pursuit of the same ends, the ends of judicature.
Of the falsehoods which are forced into the lips of the suitors, or rather (since in that way little would be to be got) into the paws of their professional assistants, a specimen may be seen in those falsehoods (some examples of which were given in a preceding chapter* ) the utterance of which is rendered necessary on pretence of certainty. The specimen is a rich one: falsehood upon falsehood: for the reason (as we have seen) is as rich in hypocrisy, as the practice itself is in falsehood.
When a thing happened in one or other of two ways, and you cannot tell in which, you must not say so; that would be uncertain: your indictment or your declaration would be void for uncertainty. You must say it happened in both. On these terms, and on these only, you are right in law: not the less so when the fact is impossible. And so if there be half a dozen or a dozen such alternatives; which there are, and more, in every day’s practice.
The practice is, to tell as many different stories, as there are ways in one or other of which it is supposed the fact may have happened: it is spoken of as having happened in each of those ways: each story is called a count. Thus, if there are two such counts, there is one of them perhaps true, one certainly false: if half a dozen counts, one perhaps true, five false.
A man was murdered, by being knocked on the head and thrown overboard: whether dead or not when thrown overboard, is uncertain. Two counts: one, that the man was knocked on the head, and died of the blow: the other, that the man, the same man, was, at the same time and place, throw overboard, and died of the drowning. Here was the same man killed twice over: and this for the better information of the supposed murderer, that he might the more clearly understand the charges he had to defend himself against. Had the fact been truly stated, the murderer would have been acquitted. This case occurred not much more than twenty years ago. The indictment stood the scrutiny of the twelve judges.†
So again in non-criminali. To take the sort of case of all others the most commonly exemplified. A man owes you £20 and no more; you are or are not certain as to the precise description of the debt, or the evidence by which you shall be able to prove it. Your attorney, with his special pleader under the bar, with or without the advice of a barrister to boot, gets a declaration drawn with half a dozen counts in it, less or more: say half a dozen. Here, then, you are made to demand six separate sums of £20 each, stating them as different, and saying of each that it is due to you: total £120.
What shall we think of that man, but above all of that judge, who, seeing this, or not seeing it, proclaims the necessity of certainty; and is indefatigable in his eulogiums on the law, for the rigour with which it exacts the presence of that best ornament in all legal instruments?
Uses of these forced falsehoods:—
1. Half a dozen or a dozen or a score of stories told instead of one: so much the more made business.
2. Chance of mis-statement, real or supposed: whence application for nullification; certainty of a motion and an argument; even chance of a fresh suit: at any rate, more made business.
3. Verdict taken in a court alleged not to be the proper one: application in consequence: more made business as before.
4. The business having thus been rendered incomprehensible to a jury, what is given as their verdict is none of theirs, but settled some how or other among the men of law: neither is the judge himself responsible for it. On one or other of all these counts, the plaintiff takes the verdict at his peril: that is, the plaintiff’s lawyers take it, at the peril of their client: if they take it wrong, so much the worse for the client, but so much the better for the lawyers. The lawyers make the verdict, the jury stare. Jury trial for ever!—sacred palladium of English liberty!
5. Confirmation of arbitrary power in the hands of the judge: the jury serving as a stalking horse. Incapable of judging for themselves, conscious of their own incapacity, juries become helpless, and do as they are bid. How should they do otherwise? They know not what is done; they know not how to help themselves. If the court likes the verdict, it stands; if not, it is got rid of. The verdict, if an unjust one, cannot, on the score of its injustice, be got rid of without reasons. But in this way, just or unjust (reasons being out of the question,) it may be got rid of with equal case.
6. The state of the law rendered more and more incognoscible.
By wrapping up the real dispositions of the law in a covering of nonsense, the knowledge of it is rendered impossible to the bulk of the people—to the bulk of those whose fate depends upon it. What meets their eyes is gross and palpable nonsense: a man dead and alive at the same time; a dead man and a live man the same person: thirty or forty days making altogether but one day: a man constantly present in a place where he never set his foot: the same man judge and party, and justice all the better for it. In jargon such as this, no man in whose brain the natural provision of common sense has not been eaten out by false science, can avoid beholding so much vile and scandalous nonsense: but if, by the help of that portion of common sense which each man’s fortune has imparted to him, it were possible to him to divine what disastrous sense may be at the bottom of this nonsense, the nonsense would miss its mark.
7. Legislator and people confirmed in the habit of bowing down to falsehood and absurdity, and recognising them as being, what lawyers are continually proclaiming them to be, necessary instruments in the hands of justice. If without them justice never is administered, what conclusion more natural, than that it never can be?
8. Corrupting the morals of the people. Wheresoever the use of fiction prevails, and in proportion as it prevails, every law-book is an institute of vice; every court of judicature is a school of vice.
Put into the hands of your son the Commentaries of Blackstone? Send him to attend the courts at Westminster? For learning jurisprudence, yes: but for cherishing in his bosom the principles of veracity, of sincerity, of true honour? Stay till you have made your daughter get by heart the words of Piron and Lord Rochester.
9. Corrupting the intellectual faculties of the people. To what a state of debility and depravation must the understanding of that man have been brought down, who can really persuade himself that a lawyer’s fiction is anything better than a lie of the very worst sort! that the whole mass taken together, or any one particle of it, was ever of any the smallest use to justice!
Fiction may be applied to a good purpose, as well as to a bad one: in giving support to a useful rule or institution, as well as to a pernicious one. The virtues of an useful institution will not be destroyed by any lie or lies that may have accompanied the establishment of it: but can they receive any increase? The virtues of a useful medicine will not be destroyed by pronouncing an incantation over it before it is taken: but will they be increased?
Behold here one of the artifices of lawyers. They refuse to administer justice to you unless you join with them in their fictions; and then their cry is, see how necessary fiction is to justice! Necessary indeed; but too necessary: but how came it so? and who made it so?*
As well might the father of a family make it a rule never to let his children have their breakfast, till they had uttered, each of them, a certain number of lies, curses, and profane oaths; and then exclaim, You see, my dear children, how necessary lying, cursing, and swearing, are to human sustenance!
[* ]2 Blackstone, 357. Fines and recoveries (as has been before observed) have been abolished by 3 & 4 Will. IV. c. 74.—Ed.
[* ]Blackstone, III. Append. xiii.
[† ]This operation English lawyers, heaping fiction upon fiction, call appearance: a word which in their vocabulary has at least half a score different meanings: but that which it has in the language of common sense is not of the number. Whatever be the number of them, they all agree in this, viz. that they signify some operation which, in every instance, is completely useless to the purposes of justice, oppressive to suitors, useful to none but the fraternity of lawyers.
[* ]Blackstone’s Comm.
[† ]This was caused by the 13 Car. II. st. 2, c. 2, which required that the true cause of action should be stated in the body of the writ, before a defendant could be arrested, upon affidavit that the cause of action amounted to £10 or upwards. As the bill of Middlesex was only framed for actions of trespass, upon which a defendant could not be arrested for a breach of a civil contract, the King’s Bench was ousted of its jurisdiction. In order to get out of this difficulty, the judges invented the ac etiam clause, by which the defendant was to be brought in to answer the plaintiff of a plea of trespass, and also to a bill of debt. A few years after, Lord Chief-Justice North, in order to get some of this business into the Common Pleas, also added an ac etiam clause to the writ of capias, in order to give his court jurisdiction.—Ed.
[‡ ]Blackstone’s Comm.; Sellon’s Crompton; North’s Life of Lord-Keeper Guildford, &c. &c.
[* ]Chap. XVI. Written Pleadings; § 4.
[† ]Leach’s Crown Cases, [p. 569, case of Hindmarsh, 1792.—Ed.]
[* ]A man to whom you lent a horse,—does he refuse to return it? Not the smallest chance will they give you for getting the animal back again, unless you say he found it. This is what you are forced to do when you bring an action of trover: by which, by the bye, you will not get your horse after all, if the defendant chooses to keep it, paying the price which the jury have happened to set upon it.