The Online Library of Liberty

A project of Liberty Fund, Inc.

• Book I.
• Preface.
• Introduction.
• Chapter I.: General Division of the Aggregate Body of the Law.
• Chapter II.: Constitutional Law.
• Chapter III.: Civil Or Distributive Law. *
• Chapter IV.: Penal Law.
• Chapter V.: Procedure Law. †
• Chapter VI.: Financial Law.
• Chapter VII.: Prescriptions Or Bearings of the Other Codes Or Branches of Law, to the Constitutional Code.
• Chapter VIII.: Public-opinion Tribunal.
• Chapter IX.: Good Rule and Bad Rule.
• Chapter X.: Corruption.
• Chapter XI.: Delusion.
• Chapter XII.: Fiction.
• Chapter XIII.: Factitious Honour.
• Chapter XIV.: Established Religion—none.
• Chapter XV.: Supreme Constitutive.
• Chapter XVI.: Supreme Legislative.
• Chapter XVII.: Supreme Operative.
• Book II.
• Preface to the Original Edition of Book II.
• Chapter I.: Territory of This State, Name, Situation, Boundaries, Divisions.
• Chapter II.: Ends and Means.
• Chapter III.: Sovereignty, In Whom. *
• Chapter IV.: Authorities.
• Chapter V.: Constitutive Authority. *
• Chapter VI.: Legislature.
• Chapter VII.: Legislator’s Inaugural Declaration. *
• Chapter VIII.: Prime Minister.
• Chapter IX.: Ministers Collectively.
• Chapter X.: Defensive Force.
• Chapter XI.: Ministers Severally.
• Chapter XII.
• Chapter XIII.
• Chapter XV.
• Chapter XVI.: Quasi-jury.
• Chapter XVII.
• Chapter XVIII.
• Chapter XIX.: Government Advocate General.
• Chapter XX.: Eleemosynary Advocates.
• Chapter XXI.
• Chapter XXII.
• Chapter XXIII.
• Chapter XXIV.
• Chapter XXV.
• Chapter XXVI. *
• Chapter XXVII.
• Chapter XXVIII.
• Chapter XXIX.
• Chapter XXX.
• Chapter XXXI.
• Appendix.
• No. I.
• No. II.
• No. III.
• No. IV.
• No. V.
• No. VI.
• No. VII.
• No. VIII.

CHAPTER V.

PROCEDURE LAW.†

The penal branch of law, as already observed, has for its object and occupation the giving execution and effect to the civil or distributive branch, as also a portion of the constitutional branch. Both together, compose the substantive branch of law. The law of judicial procedure constitutes the adjective branch of law. This adjective branch has, for its object and occupation, the giving execution and effect to the aforesaid substantive branch.

For the production of this effect, the requisite means are right decision and conformable execution.

To the positive expression right decision, substitute an expression with a negative aspect, it will stand thus:—avoidance of misdecision.

In so far as the law is of a beneficial nature, giving execution and effect to it, will, bating accidental preponderant evil, be in a like manner a benefit. But as above, in the field of law no benefit can have place, without its attendant burthen.

The burthens inseparably attendant on judicial procedure stand comprised, the whole assemblage of them, within the import of three words—vexation, delay, and expense.

To give to the benefit, the utmost practicable extent, to confine the burthen within the narrowest practicable limits—to these two perfectly distinct, but intimately connected, modes of promoting the greatest happiness of the greatest number, the one positive the other negative, it belongs to the legislator to direct his operations.

Here, then, we have two conjunct ends of judicial procedure: main or direct end; right decision, or say, avoidance of misdecision; collateral end, avoidance of vexation, expense and delay.

Decision is right, in so far as, by giving execution and effect to it, the will expressed by the law is conformed to—the eventual predictions delivered by the law, carried into effect. Here, then, on every occasion, is a standard composed of a certain portion of a certain text of the law, to which, to give warrant to his claim, by him by whom a call is made for execution and effect to be given to the law, reference, direct or implied, must be made.

But to constitute any such claim, the existence of some individual matter of fact or state of things, must be asserted: and in consideration of the existence of this matter of fact, a demand must be made that execution and effect may be given to that same corresponding portion of the body of the law.

Misdecision is liable to be produced—either by the non-existence of any portion of law applicable to the case, or by the misinterpretation of this or that portion of law, applicable to the case.

In the former of these cases, if any decision at all—if any decision to any other effect than that of the rejection of the claim be pronounced by the judge, misdecision is an appellation which, with unquestionable propriety, may be applied to it. For, in this case, by the supposition, there is no ground for it. In this case, are all decisions whatsoever, in so far as they have for their pretended ground, the sort of non-entity called common or unwritten law: a spurious ground which, by the supposition, is not the work of the legislator—is not the work of any person having authority to make law, or so much as claiming authority to make law.

In the supposition of misdecision from misinterpretation, the supposition of the existence of a portion of real law, applicable to the case, is involved: where there is nothing to interpret, no such thing as misinterpretation can have place.

In the first case, the evil has, for its manifest cause, negligence on the part of the legislator.

This negligence has not at present either justification, or any the least shadow of excuse.

In the early stages of society, the evil was not the result of negligence: the nature of things rendered it an unavoidable one: particular cases presenting a demand for legislation had not, as yet, presented themselves in any quantity or variety, capable of affording any adequate idea of any extensive, much less of any all-comprehensive, body of law.

All this time, as often as compensation or satisfaction for evil suffered at the hand of another was claimed, the judge, if he did any thing, did as he would have done, if a law had been already made, containing the description of a genus or species of case, in which the individual case before him was comprehended.

In the case of every decision thus pronounced, the very sort of evil had place which, in the present state of things, is produced by what is called an ex post facto law: on the part of the defendant, no expectation of finding any such burthen imposed upon him, previously entertained: no cause for abstaining from the act, on the ground of which the burthen was imposed, present to his mind: consequence on his part, sufferance from a burthen which, had a law to the effect in question been already in existence, and sufficiently known to him, might not have had place.

What in this case is neither impossible, nor out of the ordinary course of things, is—that, by some general conception of the several sorts of acts by which the greatest happiness of the greatest number is liable to be impaired, he may have been led to the conception that the act for which the burthen has been imposed upon him, is in its nature of that number, and on that score might come to be taken by a judge, as a sufficient cause for dealing with him, as in effect he has been dealt with. But in comparison with a state of society which furnishes a real law actually applying to the case, how wretched that state of society cannot but be, in which the rule of action is left in an ever floating state, must be sufficiently obvious.

On any part of the field of human action, a body of law, conceived in general terms, cannot have been framed on adequate grounds, except in so far as a certain stock of individual cases spread over that same ground, and constituting a demand for legislation,—have rendered themselves present to the mind of the legislator. The greater the length of time during which the government in question has continued in existence, the greater the extent of the country and of the population subject to it; the greater will have been the number of those individual cases, that will have presented themselves to the cognizance of the judge. But, let the stock of those cases thus presented have been ever so numerous, only in proportion as some unperishable memorial has been made of them, can they have had the effect of contributing to furnish the legislator with this necessary ground. Memorials affording indication, more or less particular, of individual cases of this sort, as having, on such or such grounds, called for decision at the hands of the judge, and on such and such grounds, received decision accordingly, are, in the language of English jurisprudence, called by the common appellation of Reports.

In no other country upon earth, have these indispensable grounds for apt legislation presented themselves, invested with permanence by the press, in any variety or extent, comparable to that which stands exemplified in English jurisprudence.

Thus it is, that, from a combination of causes for which no room can be found here, no country upon earth affords so rich and apposite a stock of materials and grounds for legislation; while, on the other hand, by an unhappy fatality, no civilized country on earth can be assigned which is so likely to be the last in which the appropriate use of those riches will have been made.

On the occasion of each individual course of judicial procedure, there are two necessarily distinguishable questions,—the question of law, and the question of fact: whether the state of the law is as alleged, and whether the state of facts is as alleged.

If so it be that the state of the law is really as alleged, the bringing to the view of the judge that part of the law on which the claimant grounds his claim cannot be attended with much difficulty.

Not so the bringing to view the state of facts.

The means or instruments by which a state of facts is thus brought to view, and the persuasion of its existence endeavoured to be established, in the minds of those to whom it appertains to form a decision in relation to it, are called the evidences, or, by one collective appellation, the evidence.

Under one or other of two denominations,—things and persons,—every imaginable source of evidence will be found comprisable.

It is not to any comparatively great extent that, for a purpose such as this, things themselves—material bodies—can, without the intervention of persons, be brought within the view of the judge. In the most common case, it is only by the account given of it—by the report made of it—by the discourse held, or the deportment exhibited, in relation to it, by some person or persons denominated on this occasion witnesses, that the state of things in question, real or alleged, is brought to the view of the judge.

So far as depends upon the single exertions of the claimant himself in the bringing to view, on each occasion, the mass of evidence thus described, there will not, in general, be much difficulty.

But, most commonly for the production of the necessary mass of evidence, in addition to, or instead of, all operations performable by the claimant himself, appropriate operations, performed by other persons, (neither to the number of whom, nor to the distance of whose residence from the seat of judicature, can any determinate limits be assigned,) may be necessary: and, in the instance of each such person, either willingness or reluctance may, to any degree, have place.

Here, then, for one main purpose, viz. the yielding evidence, there will, on each occasion, be a need, that either things, or persons, or both, should be forthcoming at the seat of judicature. Here, accordingly, one main problem presents itself for solution at the hands of the legislator—how to secure forthcomingness on the part of persons and things for the purpose of evidence.

Saving the accidental case of a mutually voluntary application of the possessors of two conflicting interests, for a decision at the hands of the judge,—a claim of this sort cannot be preferred without experiencing, at the hands of some other person or persons, more or less reluctance. If not in reality, at any rate in belief, the object of the claim will always be some benefit. But no benefit, as before mentioned, can exist without a correspondent burthen. The benefit required at the hands of the judge by the claimant, cannot be granted but in so far as, upon some other person or persons, a correspondent burthen is imposed.

For the attainment of this benefit, to cause this burthen to be imposed, will throughout be the object and continual endeavour of the one party: to avoid the imposition of it, that of the other party, who will act on the occasion the part of a defendant.

Where punishment is out of the question, at the commencement of any course of judicial procedure, the natural state of things is, in the first place, on the part of the claimant, voluntary appearance at the seat of judicature for the purpose of preferring his demand: thereupon, from the judge, if upon hearing the claim, a sufficient ground has been made for subjecting the other party to the vexation inseparable from defence, summons to that party either to do that which the claim requires him to do, or to appear at a certain day and hour at that same seat of judicature, to defend himself against it.

This is the most obvious, and, upon the face of it, the least vexatious mode of giving commencement to a suit. But there are various circumstances by which a departure from it, in some way or other, may be rendered matter of convenience, or even of necessity, as where, by a party on the defendant’s side, he knowing himself to be in the wrong, his person, or any property of his, would be to be disposed of in any manner burthensome to him by the decision of the judge, voluntary appearance on his part, cannot reasonably be to be depended upon. By bare notice to him of that which is in contemplation to be done, the possibility of its being done, may be done away.

When the suit has commenced, let evidence be received from any and every source—exclude none. For, if any evidence is excluded, there will be danger of misdecision.*

As a security against improper conduct on the part of the judges and all other functionaries, the utmost publicity must be given to all judicial proceedings.

[† ]See Principles of Judicial Procedure, with the Outlines of a Procedure Code, in vol. ii.

[* ]See this subject considered in detail in the Rationale of Evidence, in vols. vi. and vii.