Front Page Titles (by Subject) CHAPTER XXVI.: OPINION-TRADE. - The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
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CHAPTER XXVI.: OPINION-TRADE. - 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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The opinion-trade is not, properly speaking, itself a device; it is a natural result, and a distinct branch, of the aggregate mass of profit reaped from the contrivances already brought into view under that name: but on this occasion the fruit cannot pass altogether unheeded, any more than the tree that bears it.
This branch of the partnership trade has for its sole foundation, the uncertainty and uncognoscibility of the law: properties essentially attached to its existence in the shape of jurisprudential law, howsoever chequered with patches here and there of statutory.
Should the legislator ever have the force to know his own will, and the grace to grant to his submissive subjects the possibility of knowing it and conforming to it, instead of being punished or plagued for not having conformed to it, there ends the opinion-trade: there vanish the opinionists, like animalcules, upon the drying up of the puddle in which they feed and float.
The publication of reports (histories of adjudged cases) is another arrangement unfavourable to the opinion-trade. Here we see an interest within an interest: Mammon divided against itself.
When an opinion is taken, before and in contemplation of a suit, the service sold by the opinionist consists in a conjecture concerning the part which, in the case as stated, the judge is likely to take. If, instead of the interests of the law partnership, the interests of the community were the objects regarded, means would be afforded to the subject for obtaining beforehand, at the hands of the legislator or the judge, that information, of which, at the hands of the opinionist, he purchases at present a precarious and often fallacious conjecture. A provision for this purpose would constitute a natural appurtenance to the body of the laws.
The opinionist entertains a natural antipathy towards the reporting lawyers. So far as the information they furnish extends, so far it goes towards narrowing and starving his trade.
He knows not what to say against them; and yet something must be said. They publish too much—more than used to be published: the science is overloaded by the quisquilious matter they rake together and preserve. They publish too soon; before they have taken the requisite time for digestion: the science is clogged by crudities. But, to do quite right in the sight of the opinionist, there is but one course they can take: and that is, to have done publishing, to give up their branch of the trade to his.
When the reporters have done their worst, there remain the old cases, over which they have no power. The cases themselves (the old cases) are reported, it is true: but what perhaps may here and there not have been reported, are certain opinions of the reigning judges, the potentates of the day, respecting the matter of these cases. Sects form themselves about this and that quirk or quibble, as formerly among the Romanists. The technical system, wherever it sets foot, can never be without its Proculeians and its Sabinians. “Where the treasure is, there will the heart be also.” A plenum of technical ideas is a vacuum of rational ones: the head that has fitted itself up for jurisprudence, has unfitted itself for everything else. The jargon which has been giving occupation to the official hour, gives relaxation to the social. The lawyer fights over again his arguments, as the conqueror his battles: the learned lord finds that entertainment in quibbles, which the learned king used to find in puns.
Twelve dii majorum gentium find an Olympus in Serjeants’ inn: the opinionist lawyers are their priests. The will, or, in learned language, the opinion, of the god, is to be learned through no other channel than the will of the priest. The gods of the Pagan hierarchy had each his priest: the jurisprudential have theirs in common.
Advice to parties and attorneys:—If it be a knotty point, particularly open to controversy—a point in conveyancing, for example, or any other that seems to lie deep,—seek not for that soundness of understanding, which would be but an ignis fatuus; betake yourselves in preference to some grave person in a silk gown, a coætaneus and contubernalis of the reverend band. The table-talk of the ermine forms the privileged science of the silk gown. At first hand, the opinion of the ermine is not to be bought, at any price: but, whether at first-hand or second hand, what matter, so long as it is obtained?
From no one guinea given to an opinionist lawyer, does any judge ever receive the smallest share; for that would be a bribe: a sort of profit as unknown, as it is unnecessary, to any English judge. But the source of legal profit is in the abyss of legal uncertainty: and the benefit of the uncertainty is the patrimony of the firm, in the profits of which no member is without his share.
One abuse grows out of another abuse. It is because, in the field of litigation, the pursuit or defence of a man’s due is so expensive, that he applies to the opinionist to learn whether it be worth his while to hazard the expense: and thus the expense receives an addition,* and that a certain one, in the first instance: and this additional burthen rests, without alleviation, on the shoulders of the party injured; for it is not allowed in costs.
If the cause of action lies but a hair’s breadth out of the most beaten track, your attorney will not proceed without an opinion. Profit is no object to him: to the reputation of virtue he is not alike insensible. His fidelity and zeal are proved, by his anxiety not to plunge his client into an unprofitable expense: his modesty, by his unwillingness to rely on his own judgment. Nor yet, in so far as reputation is concerned, is he altogether insensible to his own just claims. For his defence against the imputation of ignorance, rashness, or rapacity, he has a right to that sanction which the usage of the profession affords to that branch of it in which he serves. Prudence thus comes in, to make up the group of virtues.
Whether in his opinion the cause be good or bad, the attorney finds his advantage in this practice. If good, profit is always increased, and not the slightest loss of reputation hazarded. If bad, he thus exonerates himself of all responsibility, his reputation is put under cover, and, if the profit of the suit is lost, the profit of taking the opinion is at any rate so much saved out of the fire.
But, of the ceremony of consulting the oracle, the loss of the suit with its profit is by no means a certain consequence. So far as the question of law is concerned, the opinionist may indeed be depended upon for not giving as law what he really does not look upon as law; so much reputation would be lost to him, and nothing gained in lieu of it. But the law depends on the facts: on the state of the evidence, as laid before the opinionist in the instrument called the case. By a very slight deficiency either in point of correctness or in point of completeness, on the part of that mass of supposed facts, such an opinion may be produced, as, while it engages the client in a suit predestined to be unsuccessful, shall secure both members of the partnership from all danger of reproach.
It is the interest of the attorney not to extract from his client (if he can avoid it) any fact which, if brought to view, would betray the badness of his cause. On the part of the client, this sort of suppression finds itself continually favoured, partly by passion, partly by ignorance. Either he is not aware of the influence which the fact would have on the cause,—or, if he is, the pain attached to the idea of it deprives him of the resolution to bring it out.
The propensity of the bulk of clients thus to deceive themselves, while deceiving their law-advisers, is no secret to either the honest or dishonest among attorneys. The honest have to fight against it: the dishonest keep the discovery to themselves, and avail themselves of it; turning to their own account the proficiency thus made by experience in the science of human nature.
To the opinionist, whether the mass of supposed facts be correct or incorrect, complete or incomplete, is matter of the most complete indifference: or rather, if incorrect or incomplete to the effect of representing the client in the right where he is in the wrong, so much the better: since, in that case, a suit which ought not to be brought may come to be brought, and the opinionist to be employed in it.
Should the incorrectness or incompleteness be upon the face of the statement so glaring as to force itself upon the notice of the learned sage, will he take the trouble to give intimation of it? Not if he be wise in the way of worldly wisdom. Labour it will cost him; advantage he will not gain in any shape: the lips of the attorney may thank him, the heart of the attorney will not thank him, for an article of information by which on one hand the deficiency of the attorney is held up to view, while on the other hand the suit with its profit is nipped in the bud.
Numberless are the ways in which, with or without consciousness of wrong, the attorney may, without any risk of reputation to himself, engage the client in a groundless suit. Whatever the client states as fact, the attorney assumes as fact: by this demonstration of respect and confidence, he does not lose; by the opposite demonstration he might incur the displeasure of the client, as well as lose the benefit of the suit.
But, though the fact should be exactly as the client states it, the advantage which, on the occasion of the suit, the client will be able to reap from it, depends altogether upon the evidence: upon the faculty of adducing such evidence as shall obtain admission, and be found persuasive. By the attorney, it is either known or suspected, that (whether through inadmissibility or through insufficiency) the evidence will not serve. But, if be be ordinarily wise,—especially if in the person of the client he has the advantage of dealing with an uninformed mind, such as are those of the bulk of clients,—he will not be so unpolite or so imprudent as to suffer this knowledge or suspicion to pass the bounds of his own lips.
What, then, after all, is the sort of intercourse thus described? It is a sort of previous inquiry or trial of the cause performed upon bad evidence—upon evidence commonly incomplete and incorrect, for the purpose of determining whether it shall be put into a course of being tried upon correct and complete evidence.
To the account of the technical system of procedure may this fruit of it be set down: since under the natural it has no place. Why? Because, under the natural, the facts are brought to light, with the utmost degree of correctness and completeness which the faculties, intellectual and moral, of the witnesses, admit of: brought to light with less delay, vexation, and expense, than what attends the production of that partial and naturally unfaithful picture, which, through so treacherous a medium as that of the pen of the attorney, is, in the course of the opinion trade, placed under the eye of the venal and uncommissioned judge, by whose decision nothing is decided.
Is it a case in which both parties are heard together? Self-partiality draws from each of them such of the facts as promise to operate in favour of his claim; the same force extracts from the lips of his adversary, information of a contrary tendency: and in both instances with as much promptitude, as well as correctness and completeness, as the collision of interests can command. Titius cannot have an interest in getting evidence for a false fact, but Sempronius has an equal interest in bringing down detection upon the falsity: Titius cannot have an interest in the suppression of a fact, but Sempronius has an equal interest in dragging it forth into light.
Is it of the number of those cases, in which one of the parties (at the commencement of the cause, the plaintiff) comes into court without the other, to demand the service which, in that stage of the cause, he stands in need of at the hands of the judge? Adverse party, with his adverse interest, by the supposition there is none: but it is the interest of the judge, the honest interest of the unfee’d judge, that, in this stage of the cause, the truth shall come to light, in a state as correct and as complete as may be. Why? Because (over and above all reputation, and the sacred regard for the ends of justice) by extracting from the applicant those truths which his inclination might have led him to suppress, or driving him out of those misrepresentations for which his inclination might have led him to obtain credence, the object of his application, unjust as by the supposition it is in this case, may be defeated at the time; and the labour of giving a joint audience to both parties, or whatever other labour on the part of the judge the grant of the ill-founded demand might have been productive of, will be saved.
Thus it is, that, in whatever point of view the field be contemplated, technical procedure, with its endless train of afflicting consequences, presents itself as the disease, the foul disease; natural procedure as the simple, the pure, the efficacious remedy.
[* ]From two, to thirty or forty guineas, including the attorney’s share.