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CHAPTER XXV.: HABITUAL CONTEMPT SHOWN BY JUDGES TO THE AUTHORITY OF THE LEGISLATURE. - 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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HABITUAL CONTEMPT SHOWN BY JUDGES TO THE AUTHORITY OF THE LEGISLATURE.
A statement of the instances in which the authority of Parliament has been, and continues to be, trampled upon by its sworn servants, might fill volumes upon volumes.
When misinterpretation is the instrument—scientific misinterpretation,—how plainly soever wilful, the contempt may in general be covered by effrontery. The sense we put upon the law is the sense which it is the intention of the author should be put upon it: so we say, to whom it belongs to say so; and who are you that take upon you to say otherwise?
Cases, however, are not altogether wanting, in which such insincerity cannot be altogether put out of sight: not by any degree of effrontery on one part, nor by any degree of carelessness and obsequiousness on all others.
Of this number are cases of arithmetical contradiction: as if a man were to say (is it credible that a man should have said?) this guinea and this guinea added together, do not make two guineas: or, this first guinea and this second guinea and this third guinea added together, do not make three guineas.
By a contradiction of this kind (if a book of practice now before me is to be believed,) the judges of three of the four great courts, for there is no exception, did manifest in the year 1796, and, for anything that appears, do continue to manifest, an open declared contempt for the authority of parliament.
“Where a statute gives double costs,” says Mr. Palmer,† “they are calculated thus:—the common costs, and then half the common costs. If treble costs;—1. the common costs; 2. half of these: 3. and then half of the latter.” If this be so, then, as often as parliament has ordered the judges to give treble costs, so often do these sworn executors of the will of parliament refuse to give so much as double costs.
The grand mischief attendant on such practices is, that, in proportion as they come to light, they weaken, not to say root out of the bosom of the people, all confidence in the engagements taken by the law. They destroy the credit, not only of those who deserve so little, but of the legislator himself, who, howsoever himself deceived and imposed upon, never, certainly, wishes to deceive. For, in a case like this, except through the means of these his servants, it is impossible for the legislator ever to keep his word. But, by a determination taken by them, and regularly pursued to the extent of this wide-extending case, so have they ordered matters that he never shall keep it, in any one single instance.
But, the greater the mischief resulting to the public from this treachery, the greater the advantage accruing from it to the contrivers.
Let the legislator say or do what he will, the authority upon which the fate of the subject has its immediate dependence, must, in every case, be the will of the judge. Upon the will of the legislator it does not depend, upon any other supposition than this, viz. that the will of the legislator will of course find the will of the judge conformable to it. Suppose this conformity constant, the subject is, comparatively speaking, independent of the will of the judge: to know what the will of the judge will be, no more is necessary to him than to read the will of the legislator in the letter of the law. On the other hand, suppose this conformity altogether out of the question, the dependence of the subject upon the will of the judge is absolute: in other words, the power of the judge over the subject is completely arbitrary. But the more arbitrary the judicial authority can succeed in rendering itself, the greater the degree of perfection in which the purposes of the partnership may be carried into effect. Absolute perfection in this line would be attained, if in no case the subject could find or suppose himself safe in regarding the tenor of the law, the words of the legislator, as sufficient evidence of the eventual will of the judge. In this state of things, regarding the words of the legislator as no better than a snare, the subject would view in them, on each occusion, neither more nor less than the necessity of repairing, fee in hand, to some professional member of the partnership, in whose opinion might be read the most probable conjecture that the nature of the case admitted, of the eventual will of the official and governing members.
To this pitch of perfection, the plans of the partnership have never yet been brought: but a more effectual step towards it than that which has been made by the course of mock interpretation here exemplified, cannot be imagined. If a premium were held out for the highest insult that could be offered to the authority of the legislator by the power of the judge (viz. by wilful misinterpretation simply, unaccompanied by a direct disclaimer,) no higher than this could by the utmost effort of ingenuity be devised. Instances of this sinister policy may be found in most unhappy abundance: and by every insult thus offered to the legislator, an additional nerve is given to the arbitrary power of the judge: but a single instance, such as the one here in question, is sufficient to do prodigious service. If, where the legislator says, give three shillings, the judge will not give so much as two—if the authority of the law is in this case openly set at nought,—in what other instance can there be any sufficient assurance of its not being dealt with in the same manner? If to such contempts, and for such a length of time repeated, the legislator has been insensible,—to what others can any sufficient assurance be had of his being less so?
That the interest of the partnership requires that the uncertainty of the law should for ever be at its maximum, is evident enough: that their endeavours must have been constantly directed towards that object, follows of course: that the establishment of a precedent of the above description, viz. a misinterpretation which cannot possibly have been other than wilful, goes further towards the effectuation of that object than a hundred or a thousand that might by possibility have been undesigned, is another proposition that seems scarcely open to dispute.
Observe the extent of the effect produced by this manifestation of anti-constitutional disobedience. To banish out of the breast of the subject all confidence in the declared will of the legislator,—in a word, to produce the requisite degree of uncertainty,—it is not necessary that it should be understood that it is a rule with the judge always to run counter to it; were that the case, no uncertainty, no such degree of uncertainty of which every man must be more or less sensible, could ever take place. What is sufficient is, that, in no particular instance, the subject (without consulting a man of law) can be sufficiently assured whether any regard will be paid to the will of the legislator, or no: and, to produce this degree of uncertainty, a single course of precedents such as the above, even without the help of so many others as might be added to them—enough to fill volumes upon volumes,—is quite sufficient.
Lawyer.—A pleasant conceit, indeed! And so, then, sir, according to this vision of yours, lawyers of all classes—advocates, judicial officers, judges themselves—are all in a partnership, all traders,—and a capital object with these traders is to destroy all confidence in the breast of their customers—is so to order matters that their customers (or say, rather, those whom they would be glad to have for customers) may never believe a word of anything they say to them! Surely this is the first time that a general destruction of confidence was supposed to be a benefit to trade!
Non-Lawyer.—Visionary enough the notion, as thus stated, certainly: but a little circumstance, sir, has escaped your notice. Where trade is open, to destroy confidence may indeed be to destroy trade. Suppose two rival shopkeepers A and B: A loses the confidence of his customers, B preserves it: what follows? B’s trade of course flourishes—A’s is destroyed. But of these traders (the avowed traders we are supposing) neither possesses any monoply; whereas, in the station occupied by the real though unavowed traders we have been speaking of, the business not only is an object of monopoly, but of necessity ever must be. To the purposes of the partnership, I have shown you how essential it is that the judge should have destroyed, as far as possible, the confidence, on the part of the people, in the engagements taken by the legislator. By the course taken for this purpose, the reverend functionary has destroyed, it is true, in a great degree, not only the confidence that the people would otherwise have reposed in the words of the legislator, but also the confidence which they would otherwise have reposed in himself and his own proceedings. But, by this double destruction, what does he lose? Just nothing: for they are not the less under the obligation of going to his shop. On the contrary, his profit is promoted by it: since the uncertainty of the law increases with it, and his profit increases with the uncertainty of the law.
Accordingly, as I have already, sir, had the honour of bringing to your recollection,—be it with personal character as it may, there exists not under the sun any sort of person whose public character, and in so essential a point as that of veracity, is so completely blasted as that of an English judge: so successful, because so well-directed, have been their learned labours in that line: and this not in carelessness and wantonness, but in all sobriety and sadness: inasmuch as the uncertainty of the law, and thence the magnitude and certainty of the partnership profit, were so evidently dependent on it.
Not only, by every such open contempt manifested towards the will of the legislator, has the uncertainty of the law been increased, and the certainty of lawyer’s profit (and in particular of the profit artached to the opinion branch of the trade) been increased along with it; but so has it by every condition annexed to a legislative command to which the legislator himself had annexed none: and thence it is that the exclusionary system, which forms the main subject of these pages, is (as well as so many other systems of astute defeasances) so much added, and meant to be added, to the uncertainty of the law: that glorious system of uncertainty, which is the real as well as so generally acknowledged source, sir, of all your glories.
In the present instance, a special sinister interest added its force to that general interest whereby (as above) they are continually urged to do as much as they dare towards destroying, on the part of the people, all confidence in the legislature. To prevent vexatious suits, was the professed as well as real object of these restrictive and remedial clauses: but every vexatious suit prevented, is a bird, or rather a covey of birds, snatched from the snare of the fowler—from the fangs of lawyers.
While a regular and deliberate system of insult has thus been opposed to the united authority of king, lords, and commons, where has been the House of Lords? where has been the House of Commons? In the House of Commons, is there not a committee appointed, or supposed to be appointed, at the commencement of every parliament, or of every session, called the committee of justice, or the committee of courts of justice?
An equal degree of contempt for the authority of the legislator is manifested by every application of the principle of nullification.
On a former occasion, the principle of nullification was considered in its character of an engine of fraud; in respect of its particular and more immediate effects, on each particular occasion, to the prejudice of the party having right on his side.
On the present occasion, the character in which it presents itself to view is that of an engine of usurpation.
The principle of nullification has been employed, the application of it warranted and ordained, by the legislator himself. An offence having been created, and punishment appointed,—the judge doing so and so, the proceedings against the defendant, it has been declared (declared by the legislator himself) shall be null and void: i. e. the defendant, though guilty, shall go free.
In this case, the application thus made of the principle has been, on the part of the legislator, an act of inconsistency and imprudence; on the part of the lawyer, his scribe, to whose unfaithful hands he has committed the task of giving expression and effect to his will, an act of imbecility or treachery.
On the part of the judge, the mass of substantive law in question being the work of the legislator, every application made of the principle of nullification is a contempt—an act of insurrection against the authority of his constitutional superior. Condition, extension, limitation, modification, exception (expressions interconvertible, expressions in effect the same,) by the legislator, none at all annexed: none, at any rate, to the effect in question. To this declaration of the will of the legislator, the genuine and lawful legislator,—the judge, by help of the principle of nullification, attaches exceptions of his own at pleasure. To the extent of these exceptions, the will of the legislator is in effect trustrated, the law repealed.
Lawyer.—Contempt! What contempt? Do you consider who it is you are speaking of? Why use such harsh words? In the character of legislator, any more than in any other, is man infallible? Is it not a case continually occurring, the case of an exigence unforeseen by the legislator, brought by particular occurrences under the eyes of the judge? In the interpretation of laws, in the application of them to particular occurrences, exists there anywhere that system in which some latitude of discretion has not been considered as virtually reposed, reposed of necessity, in the hands of the judge? But, as often as any such discretion is employed, is there not, according to your own account of the matter, some act of virtual repeal or enactment performed?
Non-Lawyer.—As to the power of interpretation, and the latitude proper to be assumed in the exercise of it, it is on this occasion nothing to the purpose. Any such exception as, in the honest opinion of the judge, the legislator, had the particular occurrence or state of things been present to his view, would himself have made,—an exception of this description, yes: provided always that the liberty thus taken with the actually declared will of the legislator, be confessed and notified to the legislator, with opportunity given to him, in case of disapprobation, to annul and stop it.
By an arrangement such as this, every unforeseen inconvenience would receive its remedy, and constitutional allegiance remain inviolate.
On these terms, but on these only, contravention, momentary and provisional contravention, to the actually declared will of the legislator, might be and ought to be, not only a power, but a duty: option between the letter and the spirit of the law would not be, as now, an organ of arbitrary power, operating upon the double-fountain principle.
But nullification! your principle of nullification! it is no less repugnant to everything that could in any case be or have been the will of the legislator, than to his will (on whatsoever subject) as actually expressed and declared.
Name, for example, that crime, if you can, of which it would have been in any case the wish of the legislator that it should be practised with impunity as often as the malefactor could find means to bribe the clerk (or whosoever it be on whom it depends) to make the flaw, or supposed flaw, of which your judges, in their wisdom and their honesty, are pleased (as often as they are pleased) to make that use.
To make one instance serve as a sample for others by hundreds and by thousands, let us turn to the practice in regard to convictions: by which word, are presented to the eye of a lawyer, convictions pronounced by justices of the peace acting out of sessions, for delinquencies referred to their cognizance by particular acts of parliament.
Trying the cause under the forms or noforms, of natural procedure, of pure and universal justice, the magistrate pronounces the defendant guilty: and, to ground the further proceedings, signs a record or memorandum, certifying the existence of the decision so pronounced. At the instance of the convict, the court of King’s Bench, without so much as pretending to know anything about the facts, quash the conviction, liberate the defendant, set at nought the statute.*
Non-Lawyer.—Liberate the delinquent, and without evidence, after he has been convicted, and by lawful authority, upon evidence? Pray, on what ground is this done?
Lawyer.—On what ground? Because the magistrate had not set forth the evidence.
Non-Lawyer.—Why should he have set forth the evidence? Had the legislature ordered him to set forth the evidence?
Lawyer.—No: it was not necessary.
Non-Lawyer.—What, then? had anybody else ordered him?
Lawyer.—No: it was not necessary.
Non-Lawyer.—What! not even you? you, who quash his decision for not having set forth the evidence? By what ingenuity was he to have discovered this to be your will and pleasure?
Lawyer.—We never meant that he should discover any such thing. Can you be so weak as to suppose we did? Are we such simpletons, do you suppose, that, when it is really our wish a man should do a thing which he would have no motive to do unless he knew it to be our pleasure,—that, in such a case, we should really omit to make him know that it was our pleasure? Did you ever know an old woman silly to such a degree of silliness? No, sir: our wish, and our determination, was to quash the decision at any rate. To quash a just decision, or to do anything else that ought not to be done, a pretence, you know (or you ought to know,) we must always have. As to what the pretence is, it matters very little. If the evidence had been set forth, we should have found another. When we have a mind to get rid of a decision, do you think we are ever at a loss?
Non-Lawyer.—I must confess, I do not very well see how that misfortune should ever happen to you. But, as to the quashing of the conviction, pray what may have been the use of it?
Lawyer.—Use of it? Abundance of uses.
1. In the first place, this was making so much business. Down comes the money,—quash goes the conviction, like a snail under our feet.
2. In the next place, we throw cold water on a bad precedent. The natural system is the rival and mortal enemy of our system: we abhor it: we do what we can to crush it: by its encroachments it robs us: by its justice it puts us to shame.
The Turks have a prophecy that some day or other the Christians will drive them out of Europe. We have something between a hobgoblin dream and a prophecy, that one of these days the natural system will drive ours out of Westminister Hall. Our wish is to stave off the fatal day as long as possible.
By thus quashing, we turn the arts of the enemy against himself, he lets off a clause, to rob us of our business; and out of that very clause we make more business.
3. In the third place . . . .
Non-Lawyer.—Oh, a truce! a truce! I see very well—any man who will not shut his eyes may see with half an eye—how well you understand your business. Only one question more:—Is it a rule with you, pray, to quash every conviction that is brought to you to quash?
Lawyer.—No: that would not be good policy.
1. In the first place, if this were the case, sooner or later the legislator might find us out, and grow angry.
2. In the next place, it is not at all necessary; every alternate one does just as well: we do not stand counting; there would be no use in it: but that proportion, or thereabouts: the nearer to it the better, if there be any difference.
Non-Lawyer.—But, if every conviction were to be quashed without exception, would not this crush the designs of the enemy more effectually? Would it not humble him still more, display the weakness of the natural system, and cure the people of having recourse to it?
Lawyer.—Possibly, in some degree: but that is not worth thinking about. Not to insist on the danger, of which you have a glimpse already,—if in this way we served a distant end, we should disserve the immediate one. If men did not see somewhat of a chance of having their convictions held good, there would be none defended: all that business would be lost.
Non-Lawyer.—Oh yes, I see, I see: your world is like the philosopher’s: nothing without its sufficient reason. But the legislature, all this while, what have they said to all this?
Lawyer.—Said? Nothing at all. Do what we will to them, they never say anything to us; they never have been used to it.
Non-Lawyer.—So then you have plenty of business in this line: a rare trade, this quashing trade!
Lawyer.—No; no great things after all: the rogues have almost grown too cunning for us. Rob us of it, to be sure, they durst not; but, little by little, they have found out a way of stealing it from us.
Non-Lawyer.—Steal business from the law? Parliament strip lawyers of their business? Oh, terrible! this is the very worst of larceny: this is contra pacem with a vengeance. Sad usage indeed! But pray, how do they manage it?
Lawyer.—They provide a form, a skeleton form: and then, say they, every conviction that is according to that form is good. The form is a skeleton form with blanks in it, such as are in Burn’s Justice: the justice has nothing to do but to fill up the blanks: the business is so easy, a viper might as soon bite a hole in a file, as any of us find a flaw in it. Now what do you say to this?
Non-Lawyer.—Say? why, that you are insidiously and barbarously dealt with. But you have one thing for your comfort.
Lawyer.—Comfort, indeed! What comfort? where is it?
Non-lawyer.—Nay, you have two comforts.
One is, that of seeing how much they are afraid of you: that if they do take business from you, they take it not as robbers, but as thieves. Why think of the molehill they have filched from you? Think rather of the mountains they have left, and dare not meddle with.
Another is (for it shows itself through your lamentations,) that the old business is still left to you: so that the damage after all is rather lucrum cessans than damnum emergens: the business does not increase so fast as it might; that is all.
Lawyer.—Alas! you are very much mistaken. From the old statutes there may be a remnant of business left, it is true: but it grows less and less every day. Every day brings new statutes, spreading over the old ground, and covering it with these cursed forms; by and bye there won’t be a spot left in which a flaw will be to be found.
Besides that the stock of flaws and quibbles is almost exhausted; and (to let you into a secret) the people begin to find us out: we cannot go on quashing through thick and thin, as we used to do. We are forced to draw up: we are forced, little by little, to turn liberalists. There is that passage in Hale against quibbles. It haunts us: it follows us like our shadow. It will blow us all up one of these days.
[† ]Table of Costs, p. 14. Edit. 1796, fifth edition.
[* ]Indictments, appeals, convictions by justices (in many instances,) and the proceedings thereon, may be removed from the inferior courts into the Queen’s Bench, by writs of certiorari facias. The validity, and not the merits of such proceedings, is alone taken cognizance of by the superior courts, and they are accordingly confirmed or quashed.