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The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 9.

Author: Jeremy Bentham
Editor: John Bowring

Part of: The Works of Jeremy Bentham, 11 vols.

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CHAPTER XII.

Judiciary Collectively.

Preliminary Observations.

Astonishment and Indignation, are the sentiments which the perusal of this Chapter, not to mention preceding and succeeding ones, can scarce fail to excite in the breast of every reader, who, in any country, is either in possession or expectation, of a situation on any judgment-seat, to a certain degree elevated. The effect is certain: the cause altogether simple. In this part of the present Code, the end in view is the greatest happiness of the greatest number, considered in the character of justiciables, as in the French language they are so aptly expressed, and may henceforward in the English.

Of every Code as yet in existence the draughtsman has been some lawyer acting under the conjunct influence of rulers at large, and some lawyer or lawyers of the highest grade. The persons whose greatest happiness it has of course had in view, and to whose greatest happiness the happiness of all other persons has to the utmost possible extent been made a sacrifice, have been the persons under whose influence the draught has been penned.

A remark which will with equal certainty be at the same time made is,—that no person possessed of adequate appropriate aptitude, or rather, forasmuch as that expression will be too precise, no person of honour would give his acceptance to an office loaded with such burthens. The answer is, that for far inferior benefits, obligations far more burthensome, are by persons in great numbers, everywhere not only submitted to, but eagerly coveted and aimed at: and if moral aptitude be taken into account, the least apt would be higher in the scale than the highest of those by whom the situation has commonly been everywhere filled.

Of appropriate aptitude with relation to the business of these several offices, which will be the most strongly probative evidence? acceptance of the office on these terms; or, strutting demeanour, by looks and boasting phrases, declaratory of the indignation pretended to be felt at the thought of a man’s being capable of giving acceptance to it on such terms?

Of utter inaptitude with relation to the functions of it, what more conclusive evidence can be afforded than the determination not to accept of it upon these terms?

In England, the enormity of the masses of emolument received by hireling advocates, from the practice of their immoral profession, is held up to view with triumph, as an adequate and irrecusable reason for correspondent enormity in the emoluments attached to the office of judge of highest, and next to highest grade. For this excess, though no adequate reason, there is still a plausible one: the incomprehensibility of the law, and the presumption that by the advocate who has had most practice, the largest stock not only of appropriate knowledge, but of appropriate judgment, will be possessed.

In the present Code, the grand demand for appropriate knowledge on the part of judges, will be done away, by the substitution of proposed real law, to the at present accepted fictitious law.

That which mankind may stand perfectly assured of is—that under the present Code of real law, as under every other, by the functionary in the several classes and grades, his own interest in every shape, and in particular in the shape of ease, will be pursued to the utmost of his power, whatsoever becomes of that of the greatest number. Of the proposed Code, in this as in every other part, the object is accordingly so to order matters that in the pursuit of his own interest in those several shapes, at the expense of the greatest number, the difficulty he experiences may be maximized, and the facility given for the effectual obstruction of all such endeavours be minimized.

If, for the accommodation of a single individual, matters should be so arranged, as that there should not be a moment of time, during the whole of his life, without his having persons in any number in attendance upon him,—in an arrangement of this sort, supposing the individual capable of affording the expense, scarcely would any person see anything extraordinary—anything to disapprove. Yet for the benefit of all,—of the myriads or the millions, a few exceptions excepted, and those narrow and recent ones, afforded by what is called Police, in no Code of law has any such arrangement been made.

For the accommodation of individuals, service in all imaginable shapes is to be had on all days and at all hours; and for ordinary remuneration, other individuals there are, each of whom is on all days and at all hours ready and glad to render it: witness all those whose business it is to supply diet, medicine, and conveyance.

From what cause this difference? From what but the utter falsity of all those professions of regard for the happiness of subjects, of which rulers have in all governments been so lavish: professions, the utterance of which has been so confident, and the contradiction so uniformly true and therefore so intolerable.

As to the Judicial Establishment, so intimate is its connexion with the system of procedure, that in any explanation given of the former, it is not possible to avoid bringing into view, to an extent more or less considerable, the intended purport of the latter.

Having for its superordinate end, the maximization of the security afforded by the services of the functionaries belonging to the judiciary system, it sets before itself in the first place two conjunct subordinate objects, namely maximizing the number of those to whom that benefit is imparted: and rendering and keeping at all times, adequate to that purpose, the number of the functionaries employed in the imparting of it.

But here, at the outset, a great difficulty presents itself. To those who for this purpose are called upon to pay attendance on a judge, the obligation of paying such attendance will unavoidably be productive of vexation or expense, or both, to an indefinite extent. On the other hand, true it is, that if it be matter of vexation to be obliged to be attendant at a judicatory in the character of defendant, such to a certain degree it cannot but be, to attend at that same place in the character of pursuer. But a state of things which to an indefinite extent may have place, is this—namely, that while to this or that man, in the character of defendant, attendance for the time in question, is a very serious evil; to this or that man, in the character of pursuer, it shall be no such evil: on the contrary, when coupled with the benefit expected, in this or that shape from the evil to which the defendant is thus subjected, or from the result of it, it may in his eyes be a good. As for instance, where the suit has for its object the obtaining from an individual, property in some shape or other by an unjust claim, by means of his inability through indigence, to employ against it the necessary means of self-defence: or, more simply, for the gratification of vengeance, the reducing him by means of the expense to a state of indigence.

Such being the state of the case, if the door of the judicatory is thus thrown open, and the faculty is given to each individual in the character of pursuer, to compel the attendance of persons of every condition in any number to meet him in the presence of the judge in the character of defendants, and no restraint is laid upon the abuse of this faculty, the judge, by means of his official services, may in this manner be rendered, how unwillingly soever, at the pleasure of any evil-doer, the instrument of evil, to any amount.

Happily to this evil, the nature of the case furnishes a remedy, alike obvious, simple, and effectual: a remedy the sufficiency of which is, to a certain extent, demonstrated by universal experience. This remedy is, the subjecting the author of such vexation to pecuniary loss.

Thus far, such is the course which has been pursued in all systems of judicature as yet established: and the result is that no vexation approaching in amount to the vexation just above brought to view, has in any of them been seen to be produced. By every man by whom in the situation of pursuer such vexation is brought upon another man, thus forced in the situation of defendant, pecuniary loss is sustained, in pursuance of the arrangement made for that purpose. This loss consists of, and is imposed upon him in proportion to, the factitious part of the costs of suit: of the money employed by him in the defraying of that part of the charges.

If justice consists in the affording to every man alike, in so far as may be, the protection of the law, by means of the appropriate services of the functionaries of justice employed for that purpose, no system of judicature hitherto established, has justice for its object. If any such system had ever had existence, this is what it would have done.

It would have rendered complete the services of the functionaries employed in the administration of justice.

It would have avoided with the most scrupulous care the adding any factitious expense, vexation, or delay, to those expenses, vexations, and delays, which are natural and unavoidable: it would no more have taken for a subject of taxation a man whose leg had been broken by a fall given him by design, than a man who had suffered the same affliction by a fall experienced by accident.

But that instrument of power which calls itself a Court of Justice has in every community, without exception, had for the object of its institution, not justice, but its opposite injustice: injustice in the shape of depredation and oppression. As to relief to the injured, it has not been the end in view, but only a collateral and unintended result: what good has been done, has been done partly as being, with relation to the evil, an unavoidable accompaniment, partly as a means of reconciling to the infliction of the evil the inconsiderate and deluded multitude.

The proofs of this are conclusive and altogether irresistible: they are shortly these:—

1. Imposition of law taxes: putting out of the protection of the law all those who are unable to pay the tax.

2. Imposition of law fees, payable to the functionaries of justice: functionaries employed in giving such security as is given against injury from internal adversaries: and who might be sufficiently paid by a minute part of the expense employed in the payment of those engaged in giving security against injury from foreign adversaries.

3. Audience refused to the parties in the suit: the defendant not compelled to meet the pursuer in the presence of the judge: nor the pursuer admitted in person to state to the judge his demand, and the foundation on which it rests.

England is, of all countries, that in which depravity in this shape has soared to the highest pitch. It would be alike needless and endless to attempt to investigate the amount of the booty thus regularly made: or the proportions in which it has been shared between the monarch and the judge; or the proportions in which they have contributed to the extraction of it.

The arrangements taken for the gathering in the fruits of this depredation, serve effectually for the prevention of vexation, in so far as the prevention of it is to them an object of desire. Of those whose desire it would be to inflict vexation on their adversaries, all those who cannot afford to have this instrument, are kept from doing so: and thus far, evil being prevented, correspondent good is done. But to all those who can and will afford to have this instrument of vexation, the use of it is let out accordingly.

To exclude evil, however—to do good in any shape, has never been to them an object of desire: if it had been, they would have excluded all vexatious suits, and all vexatious proceedings on each side. Before any vexation were inflicted by the judge on the defendant, the judge would have seen the pursuer, and taken from him, for this good purpose, those securities, the uses of which are so abundant for good and bad purposes promiscuously.

Thus, then, is the separation made: the evil, the work of design, the greatest part of it; the good, work of design, no part of it.

Meantime, abstraction made of whatever is factitious, and thence avoidable, considerable, and that to a lamentable degree, is in many instances, the expense on one side, of giving the necessary support to a well-grounded claim; on the other side, the expense necessary to effectual self-defence against an unjust one. This bar to justice, though not capable of being removed altogether, might, however, by appropriate arrangements, be removed in a considerable degree. As for the relief of those who would otherwise suffer for want of food, so, for the relief of those who would otherwise suffer for want of justice—that is to say, for want of service due from judicial functionaries, funds might be provided. If appropriate care were wanting, the disposal of such funds might be a source of abuse. But the necessary and sufficient care need not be wanting: and against the abuse to which relief in this shape is exposed, the difficulty would not be near so great, as that of preventing abuse in the disposition made of relief against the want of the means of sustenance.

To those whose desire it were to prevent needless vexation, the means of accomplishing it are sufficiently obvious: in every instance, in as far as possible, let the author of the proceeding be the individual on whom the evil of it falls. If it be for want of due attention that the vexation has been produced, make the author civilly responsible,—impose on him, in so far as he is able to bear it, the burthen of indemnification—of making compensation to the suffering party for the suffering he has sustained: if it be not for want of attention, but on the contrary by reason of attention employed in the endeavour to produce the evil, and without any justificative cause for doing so, make him penally responsible: to the burthen of compensation, if imposed, add ulterior suffering in the name, and for the purpose of punishment if either the case does not admit of compensation, as where there is no individual special sufferer, or the author of the vexation has not wherewith to make compensation, in this case to the loss of so much as it would have been necessary to disburse, to the purpose of making compensation, substitute equal suffering in the name of punishment: in a word, for simple temerity, impose the burthen of compensation; for evil consciousness, add punishment.

A course of this sort would have answered the purpose of justice: but it would not have answered the purpose—it would not have favoured the sinister interest, of the authors of any established system of judicature.

The advice which they gave to one another on this occasion, was extremely simple. Admit all unjust claims, and all unjust defences by which anything is to be got: exclude all just claims, and all just defences by which nothing is to be got. Never was advice more diligently complied with. By the admission given to the injustice, they got money; by the exclusion put upon justice, they got ease.

Section I.

Excepted Judicatories.

2. Military Judicatories: or say Courts-Martial, including Army Judicatories: or say, Army Courts-Martial, and Courts of Inquiry, and Navy Courts-Martial, and Courts of Inquiry, as to which, see Ch. x. Defensive Force; Section 13, Military Judicatories. For the names of those several exceptions, see those sections respectively: and see below, Section 6, Fields of Service.

Expositive.

Art. 8. Understand by a Court-Martial, a judicatory having for the end of its institution, the giving execution and effect to such ordinances as have for their object the applying to the purposes of their destination the services of such functionaries as stand engaged to contribute in an especial manner to the security of the territory of the State and its inhabitants, against hostile aggression on the part of external or internal enemies.

Instructional. Ratiocinative.

Art. 9. In the case of this sort of Excepted Judicatories, the proceedings will not be materially different from those of the ordinary Judicatories: for the best adapted means of coming at the truth, in regard to the relevant facts, are the same in relation to every sort of act. The only change will be that which respects the natural degree of promptitude, and that which regards the situation of the temporary judge. The time by which a judge, whose seat is at a considerable and indeterminate distance, can be called in, cannot be waited for: and the ordinary judge, having little or no acquaintance with the details of the office in question, would probably in the first instance, in respect of cognitional and judicative aptitude, be less apt than the special judge here substituted to him. True it is, that in the case proposed, the cause in which the special judge would act, might without impropriety be termed his own cause: but the facility of appeal being in this case, as in all other cases under the present Code, maximized, the evil would be nominal only, not real and effective: the evil associated in idea with the phrase—Judge in his own cause, having for its origin, the evil which for want of the facility in question, has at all times and everywhere, been exemplified in such disastrous abundance.

Expositive. Exemplificational.

Art. 10. Two other sorts of judicatories, which are wont to be regarded as Judicatories of Exception, are those styled in English practice, Audit Courts, and those styled in the same practice, Courts of Claims.

What there is peculiar in them, as compared with other judicatories, and common to them, as compared with one another, is this, to wit, that in their organization there is a sort of imperfection: in each wanting a situation which is commonly regarded as a necessary and indispensable element in the composition of a judicatory. In the Audit Court, the situation wanting is that of pursuer: in the Court of Claims, the situation wanting is that of defendant. Not that in either case, the functions of the deficient situation remain constantly unperformed: in both cases, a functionary has place, by whom they ought to be, and at any rate are professed to be, with scrupulous exactness performed, and with more or less exactness commonly are performed, and that is the judge. Without a judge, the functions belonging to judicature cannot in the aggregate be performed at all: they cannot be either well performed or ill performed. But without a pursuer distinct from the judge, they are capable of being performed: and so without a defendant distinct from the judge.

Without a pursuer they are performed in the civil field in English practice in this same Audit Court: the business of it consists in calling a debtor to account, the question being in every case, whether a debt which it is admitted he has incurred, has been discharged by him: if the decision be in the affirmative, he is pronounced discharged, and no adverse proceeding against him can be carried on; if the decision be in the negative, he may be proceeded against by a demand for satisfaction, as in the ordinary case of the proceeding on a demand on the score of debt.

In ordinary cases of debt, the suit being carried on in the ordinary judicatories, suits on this ground are carried on promiscuously, with suits on all other grounds: whereas, in this case, suits on this ground are the only sorts of suits of which the judicatory takes cognizance.

In English practice the only instance in which a judicatory under this name is established by Government, and acts with power from Government, is that in which the situation of creditor, and thence of judge, is occupied by Government itself, that of debtor being occupied by individuals: by individuals by whom money (money’s worth might as well be added) has been received, either in requital for service rendered to Government by the receiver of the money; or, in trust to hand it over to some Government functionary, or to expend it on account of Government.

Examples of a Judicatory thus denominated, are—

1. The General Audit Board which sits in Somerset-house for the auditing of Government accounts in general.

2. The Judicatory of which the Auditor of Greenwich Hospital is the Judge. Debtors, and the only ones, on whose accounts judgment is there passed, are those who stand in that relation to the constituted authorities of that Government Hospital for superannuated Naval functionaries.

3. Chelsea Hospital—has this foundation an Auditor so called: this receptacle for the entertainment of superannuated Army functionaries?

Instances are not wanting in which, in the service of an individual, another individual is maintained for this purpose, and under this denomination. In these cases, the principal is a great landholder; the debtors, his tenants. What will be the sensation produced in the mind of a Frenchman, for example, when he is informed of an instance, in which for a Nobleman, a Duke, service in this shape and under this name, is performed by a Barrister, son of another Nobleman, a Lord,—and that for this service the Barrister receives £1,500 a-year: full twice as much as the highest paid species of Judge in France.

Upon the choice of the debtor, it depends in this case, whether to appear in this sort of judicatory or not: whether to pay the debt, or produce evidence by which payment is proved.

In suits called penal or criminal, under Rome-bred law, this kind of procedure is carried on, over a very extensive part of the logical field of judicature, in divers nations. Under the Austrian Government, in particular, it used so to be. Witness Banniza. So under the Prussian Government.

In Courts-Martial, in England, the function of pursuer is declaredly added to that of the Judge. Judge-Advocate is the denomination by which this functionary is distinguished. In the situation of pursuer, he acts singly: in the situation of Judge he acts as presiding member of a many-seated judicatory—a Board of Judges.

Ratiocinative.

Art. 11. For the designation of a Judicatory, why employ this term, to the exclusion of the more commonly employed word Court?

Answer. Reasons.

1. In this same signification the word Judicatory is already in use.

2. The word Judicatory is clear from all ambiguity: the word Court, not.

3. The word Court, besides ambiguity, is liable to produce delusion and mischievous error.

4. Not that the word Judicatory is altogether free from ambiguity; but the ambiguity is of a sort from which not so much as misconception, much less any evil effect in practice, can ensue. Originally it meant—not a person or persons, but a place in which the person or persons acted, as in the case of the words Dormitory, Laboratory, Refectory: that is to say, the usual place of residence of the functionary acting as such; and, in conformity to a customary figure of speech, from the original and proper signification, comes the improper—the derivative.

5. Tainted by this same ambiguity is the import of the word Court: and besides this innoxious feature of imperfection, so is it, by another, and that a noxious one.

6. In Monarchies in general, and in the English Monarchy in particular, in addition to the sense in which it is synonymous to the word judicatory in its person-regarding sense, as above, the word Court is employed in the designation of the persons following:

i. The Monarch.

ii. The persons most immediately attached to the service of the monarch, in his private or say non-functionary capacity.

iii. Any such other persons as are most frequently in his presence.

7. Antecedent to the Juridical sense of the word Court, was, as above, its Monarchical sense. In the times of original inexperience and simplicity, all the authorities in the state were, in the supreme grade, exercised by one hand. By degrees, the judicial authority—the Monarch not having time for the exercise of it—was transferred to subordinate hands. Name of this functionary—in England, the Grand Justiciary. But, his residence was the same as that of the Monarch: to wit, the Court in its king-regarding sense; and whenever and wherever the Monarch travelled, (as for a great part of his time he commonly did,) with him travelled the Judge, and what was called Justice.

8. A Court is the region of favour: of favour, in contradistinction to Justice. A Monarch is above Justice. From his will it is, as from its source, that what in a Monarchy is called Justice, emanates: on that same will depends the nature of it: the purport and tenor of the words by which, on each occasion, it stands expressed. Witness the maxim, Quod Principi placuit legis habet vigorem:—a maxim, in every pure Monarchy, not only acted upon, but avowed: in the English Monarchy, sometimes avowed, sometimes disavowed: but, by all, more or less acted upon, even when disavowed.

9. The Monarch, at any rate, is essentially and avowedly irresponsible; and, whosoever is irresponsible, has thereby power to do everything which in every one else is unjust, and, but for such irresponsibility, would be so in him likewise.

10. Employ the same word in giving denomination to a Justice-Chamber and a Palace—to a Judge and a Monarch—as well might you employ the same word in giving denomination to justice and injustice: or non-guiltiness and guiltiness—to veracity and mendacity—to truth and falsehood.

11. Of the word Court, the effect is to involve in a sort of clouded majesty, the person whom it is employed to designate. It thereby is suited to the purpose of being employed as an instrument of pernicious deception, as often as, by others or by himself, employed in the designation of the person of a Judge. On the imagination of hearers and readers, and in particular of suitors, it serves to stamp the idea of a person endowed not only with recondite wisdom, but with a power still superior to the legitimate power of a Judge.

Art. 11. Of the case in which it is of the Pursuer that the place is occupied, or say the part acted, by the Judge, examples these—

I. In a case styled civil, or say non-penal, in English practice, an Audit Court, or say a Court of Account, spoken of in the preceding Section: the part of Defendant is in this case acted by the individual—the Accountant: the part of Pursuer is, in conjunction with his own, acted by the Judge.

II. In a case styled penal or say criminal,—in Rome-bred practice, the sort of suit styled inquisitional: the part of supposed or say suspected delinquent being, in this case, acted by the Defendant,—the part of Pursuer is, in conjunction with his own, acted by the Judge: name that may be given in this case to the Pursuer, the Inquisitor: in Rome-bred Latin he is styled Inquisitus.

III. In some sort analogous to this is—in a Military Penal Judicatory, in English practice, the part acted by the functionary styled the Judge-Advocate.

Exemplificational.

Art. 12. Of the case, in which it is of the Defendant that the place is occupied, or say the part acted, by the Judge,—an example is—in English practice, the sort of judicatory styled a Court of Claims. On the ground of right, at the charge of Government, a benefit in some shape or other, is, in this case, demanded by a party. The part of Demandant, or say Pursuer, being thus acted by a party,—the part of Defendant is, in conjunction with his own, acted by the Judge.

Expositive.

Art. 13. For distinguishing the several modes of rendering assistance with reference to litiscontestation,—and thence the several corresponding species and denominations of judicial assistants,—sources of division, with correspondent species and denominations, are the following:—

I. Source the first. Relation as between the principal, (to wit, the party,) and the assistant. Species thence deduced—1. Party, the intended benefitee: 2. Assistant, the trustee. Included, in and by these denominations, is the supposition—that whatsoever functions, whether rights or powers, are exercised by the assistant, are of the nature of trusts: that is to say charged by law with the obligation of correspondent services: services, consisting in the rendering the exercise of them beneficial, or say serviceable, to the party: which party is thereby constituted intended benefitee. As to the several species of trusts, see Civil Code, title, Trusts. In the meantime, as to the intended benefitee, and the correspondent trustees, see, for the present, Westminster Review, for October 1826. No. xii.: and page 59 of the Article in its form of a separate Tract.*

II. Source the second. The place where the Judge is—say the Justice Chamber—being the place in which the service is considered as rendered,—relative time of existence at that place as between party and assistant. Species: 1. Assistant Concomitant. 2. Assistant Substitute or say Representative.

III. Source the third.Authority, in virtue of which the assistant acts: that is to say, 1. The authority of the party assisted: 2. That of no other than the individual assisting. Species: 1. Assistant Depute. 2. Assistant self-located.

IV. Source the fourth. Relation, in respect of the existence or non-existence of other assistants or say agents, between the Principal and the Assistant in question. Species: 1. Immediate assistant—2. Unimmediate assistant.

V. Source the fifth. Nature of the inducement, operating as the final and efficient cause, of the act, by which fulfilment is given to the obligations belonging to the trust. Species: 1. Gratuitous assistant. 2. Professional or say paid assistant.

VI. Source the sixth. Mode in which the sort of service in question is rendered—to wit, 1. Preordinative. 2. Effective. Species: 1. Preordinative assistant: in English law language, Attorney, or say Solicitor: in French, Avoué. 2. Effective assistant: in English law language Barrister: in French, Avocat. Functions of the effective assistant resolvable into three: to wit, 1. the orative: exercised by making, instead of the party, application to the Judge: 2. the evidence-elicitative: 3. the argumentative.

VII. Source the seventh. Time, at which the assistance is afforded, (relation had to the commencement of the suit.) Species—1. the contemporarily-serving, as above; 2. the preinterpretative: in the former case, the suit is in existence; or, (as lawyers say,) in esse; in the latter, it is in a state of future contingency; or, (as lawyers say,) in posse. Denomination of the preinterpretative species of assistant, in English, a Counsel, that is to say a Barrister; so denominated, on the occasion of his rendering assistance in this shape: in French, unconseil, that is to say, un avocat, so denominated on this same occasion.

Instructional.

Art. 14. Note, that no such assistant as the Preinterpretative Assistant do the Judiciary Establishment of this Constitutional Code, or the correspondent Procedure Code, have need of, or give admission to. To the preinterpreter without authority, this Code substitutes the preinterpreter with authority: to the party’s professional preinterpretative assistant, the preinterpreting Judge. See as to this, Section 22, Judges’ preinterpretative function.

For the different arrangements which require to be deduced from and grounded on, and accordingly will be deduced from, and grounded on, these several distinctions, see Procedure Code, Ch. viii. and Ch. ix.

Expositive.

Art. 15. By an intermediate assistant, understand—any assistant, who, on the occasion in question, intervenes between a party and the Judge: and who, accordingly, is thereby, and in so far, a substitute, or say representative of the party.

Instructional. Exemplificational.

Art. 16. Between the Principal and the Judge, Judicial Assistants to either party, in number indefinite, before or behind one another, in the manner of the links in a chain, may have place. Of chains of this sort, examples are the following:—

1. Chain the first. Party, a person incapacitated from acting for himself, by relative infirmity of mind: by whatsoever cause produced—immaturity, caducity, or fatuity. Necessarily intervening Judicial assistant, and, as such, trustee, in this case, one: that is to say, the Guardian. By the assistant, as occasion requires, appearance is made in the presence of the judge.

2. As and for his assistant, concomitant or substitutional, this permanent trustee employs (suppose) for the ordering, or say management, or conduct, of the suit,—an occasional assistant, gratuitous or professional: by whom, as the occasion requires, appearance is made (as above) in the presence of the judge. Number of links in the chain of trusteeship, in this case, two.

3. Of the Guardian, as above, the residence being in the dominion of a distant foreign state, or in a distant dependency of the state in question,—for judicial assistance he betakes himself to a professional assistant on the spot. But, this professional assistant is, by this same distance, incapacitated from paying, in his own person, attendance on the judicatory in question. Under the like necessity, he accordingly employs on this occasion, as his agent, another professional judicial Assistant; by whom, his residence being on the spot, the attendance, as above, is paid. Links, in the chain, in this case, three.

Expositive.

Art. 17. Assistant of the first order—Assistant of the second order—Assistant of the third order. By these several appellatives may the three sorts of intermediate Assistants be distinguished. But from which of the two subject-matters of reference, shall the numeration take its commencement? Say, from the Party: he being the person, to whom the assistance is administered. Immediate Assistant and Trustee to the party or parties, in this last case, the Guardian: Intermediate Assistants and Trustees, the two professional men, as above.

Exemplificational.

Art. 18. Chain the second. Party, a Joint-Stock Company. Members too numerous to act as suitors, without confusion. Immediate Judicial Assistant, Assistant of the first order, in this case a functionary of the company, whether permanent, or employed for no other than this same temporary purpose. Judicial Assistant of the second order, say a Professional employed by the above-mentioned non-professional Judicial Assistant.

For other such chains of Judiciary Assistants, see the Civil Code: tit. Trusts; and the Procedure Code.

Instructional. Exemplificational.

Art. 19. So much for such Judicial Assistants for whose services an indispensable demand may have place, in every civilized State. Style them accordingly Judiciary Assistants, naturally and indispensably in demand. Add now to, and compare with, these, another set, for which there is no such natural and indispensable demand. Style them Judiciary Assistants redundant: or say, in redundance, in superfluity: or, in English law language, in which the thing itself is in such immense and disastrous abundance in surplusage.

For a sample of this set, turn now to English practice.

1. Evidence Elicitator. Bis-subspecies of this subspecies of Professional substitute,—Judiciary Assistants, these—In the Judicatories styled common Law Courts: 1. Special Pleader at the Bar: 2. Special Pleader under the Bar.

To the functions of both these private functionaries exercise is given, by giving utterance, to masses of discourse, supposed to emanate from a party; though, unless by accident, in fact, never seen or heard by him: utterance—that is to say in writing, and not otherwise. Evidence is the appellation here given to this species of discourse. Why evidence? Answer—Because to some purposes, the effect of evidence, that is to say as to the constituting a ground for judicial decision, is given to it; though to other purposes not. By the Judge, the elicitation of this species of matter is exacted on pain of loss of suit at the charge of him who omits to cause it to be elicited: exacted—though, when elicited, it is acknowledged as having no claim to credence, and spoken of as if not designed for any other purpose than that of serving as an object of reference to other matter to which the effect of evidence, as above, is avowedly given. In every instance, it teems with falsehood. But, by the Judge, impunity is given to all this falsehood. Why? Answer—Because he, and the partnership of which he is at the head, are suffered to exact, in the name of fees, money, in proportion to the quantity of this same falsehood: and by any bar opposed to falsehood, a check would be applied to the quantity of the whole mass of fees. To let in this species of profit-yielding matter, the parties are inexorably excluded from the presence of the Judge: and a suit which, if he would hear the parties, might without expense be, according to justice, terminated in a few minutes, is thus spun out for the space of as many years, with an expense of more than as many hundred pounds.

The way in which the commission to give existence and utterance to this mass of mendacious surplusage, reaches the Special Pleader, is this:

The party tells his story to his Attorney. The Attorney tells his to the Special Pleader—that is to say, either the same story or a different one, differing to whatever amount presents itself as best suited to that purpose which belongs in common to the two law-learned gentlemen. And this common purpose—what is it? It is of course the giving to the suit whatsoever degree of lengthiness and expensiveness, can be given to it, without too great an expense to both learned gentlemen or either of them, in the article of reputation.

Between the sort of business belonging to the Special Pleader under the Bar, and the sort belonging to the Special Pleader at the Bar, no fixed line of demarcation has place. On each individual occasion, the matter for the instrument, is taken to be manufactured at the lower priced, or the higher priced manufactory, according as less or more head work is regarded as necessary to the operation.

Exemplificational.

Art. 20. In the sort of Judicatory styled an Equity Court, superfluous-evidence elicitator, in the written form, an Equity Draughtsman, at the Bar, or under the Bar, as above. But, in this case, by whomsoever drawn, necessary to its reception is the signature of a Draughtsman at the Bar: and when the time comes, that Evidence-elicitator is aggregated to the list of Argumentators.

Suppose, now, (what frequently is the case in both Judicatories,) the individual demand one and the same—the fact alleged on one side, denied on the other side, one and the same,—the evidence by which support is given to the assertion by the one side, to the denial by the other side, the same,—still, the mode of elicitation employed in the Common-Law Court, and the mode employed in the Equity Court are as different from one another, as they can easily be conceived to be. At the opening of the suit in an Equity Court—evidence, which, consideration had of its source, would not by Common Law be received—namely, evidence of a party—is required to be, and must be elicited. Of this party-witness, the station is on the Defendant’s side: and in the written mode as above, an assistant of the party, whose station is on the Pursuer’s side, is employed to elicit it. But the statements thus elicited being destined to appear in the character of evidence—professing to be all along consonant to truth—the ceremony of an oath, with eventual punishment at the back of it, is attached to it,—namely, under the notion of its being a security against mendacity. Here, then, would be, as in the case of Special Pleading, a check to quantity: were it not that, on the Pursuer’s side, mendacity—and that without stint, is not merely tolerated, but absolutely compelled. To a set of interrogations, or as in technical language the word is interrogatories—in common language questions, the Draughtsman is obliged to prefix, to an extent to which there is no limit, a set of assertions, which, on pain of not producing the effect intended by the interrogation, must be false: for, in order to obtain a statement, in relation to a state of things, of which he is ignorant, he must state himself to be informed of it, and make accordingly in relation to it a statement, which, to his knowledge, is false—he himself being the inventor of it. On the other hand, in answer to this statement, and these interrogatories, the Defendant’s Solicitor (so this species of Professional Assistant is styled, when the judicatory is styled an Equity Court, Attorney being his name when it is a Common Law Court,) this same solicitor after taking his instructions, in writing or in conversation from his client the defendant—draws up a paper of Instructions, which he hands over to another Equity Draughtsman, by whom, at the expense of truth, in as far as is necessary, it is modified, in such sort as to afford the fairest promise of suiting his purpose, without subjecting the defendant (his client) to punishment, for any such parts of it as happen to be false: the paper thus fabricated, the defendant attaches his adoption to it, by means of the ceremony styled an oath, in which case, what is called wilful, meaning self-conscious falsehood is styled perjury: and if, in the appropriate mode prosecuted for and proved, subjects the party on whom it is proved to appropriate punishment. But for such proof, a separate prosecution and two witnesses, testifying on oath, in contradiction to some statement of the party so prosecuted, are necessary: and unless such prosecution be instituted, such proof made, and conviction and sentence pronounced in consequence, the answer (such is the name given to the paper), this answer, let it teem ever so abundantly with falsehood, is, in every point, by the Judge, how fully conscious soever of these same falsehoods, taken for true, and acted upon as such. Of the Plaintiff’s Draughtsman, with his interrogatories, the object has been, of course, throughout, to extract from the Defendant declaration of such facts, and such alone as will make for him—the Plaintiff—and, consequently, in proportion against the Defendant. But into the belly of each such to-his-client-unfavourable declaration, which he regards it as not safe to avoid making, he takes care to insert others, one or more, the complexion of which is favourable to him.

If the residence of the party, and thence of his solicitor, is elsewhere than in the metropolis,—in which place alone (with exceptions to a comparatively small extent) are the judgment-seats of the judicatories called Equity Courts;—if, in a word, the place of their residence be no other than a country place—to this principal solicitor is added, for the performance of such of the operations, the scene of which lies in the metropolis, another solicitor acting as agent to this his principal.

Moreover, interposed between the solicitor resident in the metropolis, and those public judiciary functionaries who are purely such, is another judiciary functionary styled a Clerk in Court, whose character is of a mixed nature: but, in such sort mixed, that, to analyze it, belongs not to this place.

Note—that in English practice, acting in the character of advocates,—evidence-eliciting, or argumentating, or both,—Judiciary Assistants, in number altogether unlimited, may, on each side be employed: employed—sometimes for the benefit of their assistance, sometimes for the advantage of depriving the adverse party of that same benefit: instances have been known of as many as ten or more, appearing at the same time: in former days, within the memory of the author of these pages, the instances of a number as great as this, were not altogether unfrequent.

Instructional.

Art. 21. Of the enumeration thus made, the use is the putting the Legislature in a way to satisfy itself, of which of those different suites of Judiciary Assistants, the operations are necessary, and of which not necessary to justice. But to give to this question a complete solution, belongs exclusively to the Procedure Code; in which see Ch. viii. and Ch. ix.

Instructional.

Art. 22. Note, here, in conclusion: So far as regards the direct ends of justice—(namely, execution and effect given to the ordinances of the main body of the law, to the exclusion of misdecision and non-decision, where decision is due)—obviously necessary on each occasion, is the attendance of each party in the presence of the Judge: and this, even where, in the character of an evidence-holder, it is not necessary for the support either of his own interest, or of that of a party on the other side: the matter of fact not having, either immediately, or through the intervention of any other person in the character of an evidence-holder, come within his view. For, in the breast of every species of Judiciary Assistant, as above-mentioned, has place a sinister interest, conflicting with the interest of the party: to which last-mentioned interest it belongs to the Judge in every case, to give the benefit of his care. But throughout the whole field of Judicial Procedure, conflict, or say antagonization, has place between the direct ends of justice as above-mentioned, and the collateral, namely, minimization of delay, expense and vexation: and on which side shall be the claim to preference, will, in each individual instance, depend upon the circumstances of the individual case: of which circumstances, under the Procedure Code connected with this Code, the Judge will provisionally form his conception from the examination taken by him of the applicant. In the case of a child, of an age inferior to the age of reason, or in that of a person in a state of complete fatuity, no: the party being, in these cases, by the supposition, in a state of complete incapacity, as to the watching over his own interest. But in these cases, as in every case, the difference between capacity and incapacity depends upon degrees: and (delay, expense, and vexation apart) it belongs to the Judge to obtain, as and for the ground of his judgment as to the degree, the best evidence which the nature of the case affords: in which evidence, cannot but be included the testimony of his own senses.

On the other hand, the system of Judicial Procedure having, in every country, been the work of men, who, either at the time of workmanship, were in the exercise of the function of professional judicial assistant in one of its modes as above, or for the whole time during which they were qualifying themselves for the task, had in that way been engaged: and in virtue of that profession, their interest being in a state of constant opposition to the interest of the parties on both sides of the suit, and more especially of those whose side was on each occasion the right side,—hence it is—that in the Procedure Code of every such country, it has been an object of uniform endeavour to reduce to its minimum the number of the occasions on which the parties on both sides, or on either, are compelled or admitted to appear in open judicatory in the presence of the Judge.

Hence it is that, in addition to the incidentally necessary number of professional actors in the judicial drama, the constantly unnecessary, yet constantly admitted number has, to such a degree, been worked up, as above.

Only in the case, where the evil, correspondent and opposite to the collateral ends of justice, as above, would otherwise be preponderant over the evil correspondent and opposite to the direct ends of justice,—can evidence, elicited in the epistolary mode, be admitted, to the exclusion of evidence from the same source, elicited in the oral mode; elicited—that is to say, in so far as the judge has it, in any way, in his power to compel attendance at the judgment seat, for the elicitation of such oral evidence; and, even in this case, the effect of epistolary evidence need not be conclusive: it may be subjected to the being eventually reversed, or modified, by elicitation subsequently performed in the oral mode.

So likewise, in the case where the proposed evidence holder,—being or not being, at the time, to this purpose in a state of actual subjection to the power of the judge,—has, at that same time, his residence in a distant dependency of the state, or on a spot within the dominion of this or that foreign state.

Section III.

Judiciary Functionaries.

Enactive. Expositive.

Art. 1. Judiciary functionaries, to the directing portion of whom application is made, by applicants and their assistants, as per Section 2. Actors, &c., and of whom is composed what remains of the company of performers in the judicial drama, are these—

I. In an Immediate judicatory.

I.

Magisterial.

1. The Judge; with his Deputes Permanent, as to whom see Ch. xiv.; and Occasional, as to whom see Ch. xv.

2. The Registrar; as to whom see Ch. xxi., and below, Art. 4.

3. The Government advocate; as to whom see Ch. xviii. and Ch. xix.; and below, Art. 5.

4. The Eleemosynary advocate; as to whom see Ch. xx., and below, Art. 6.

5. The Quasi-jurors; constituting collectively the Quasi-jury: as to whom see Ch. xvi., and below, Art. 7.

II.

Ministerial.

6. Judiciary messengers, or say, Mandate bearers; as to whom see Ch. xxvii., and below, Art. 8.

7. Prehensors; as to whom see Ch. xxviii., and below, Art. 9.

8. Door-keepers; as to whom see below, Art. 11.

9. Guards (Judiciary Guards); as to whom see below, Art. 12.

10. Jailors, or say Prison-keepers, or Incarcerators; as to whom see below, Art. 13.

11. Quasi-lictors; as to whom see below, Art. 14.

12. Vendue-masters, or say Venditors, or Judicial Salesmen; as to whom see below, Art. 15.

13. Executionalists;* as to whom see below, Art. 16.

II. In an Appellate Judicatory. Executionalists excepted, functionaries, as far as needful, with functions the same in nature and denomination, as above. As to these see Ch. xxii. But for execution, the business is by the Appellate, remitted to the Immediate Judicatory. See below, Art. 17.

III. The Justice Minister; as to whom see Ch. xxiv., and below, Art. 18.

IV. Added to these,—as well in an Appellate as in an Immediate judicatory,—officiating in the character of a Committee of the Public-Opinion Tribunal, are a body of Assessors styled Judicial Inspectors; as to whom see Ch. xvii., and below, Art. 19.

V. In every portion of territory styled a Bis-subdistrict.

1. The Local Headman; as to whom see Ch. xxv., and below, Art. 20.

2. The Local Headman’s Registrar, or say, for shortness, the Local Registrar; as to whom see Ch. xxvi., and below, Art. 21.

I.

Magisterial Judiciary Functionaries.

Enactive. Expositive.

Art. 24. Note that, in and by the Procedure Code, in connexion with this Code, the arrangements, for the application of the necessary checks to abuse of power in these cases, being purged of factitious delay, vexation, and expense,—proportioned to the efficiency of the security thus afforded, is the amplitude of the power, which, without preponderant danger, may be created and conferred.

Art. 6. Question 1. Why, in any case, employ as many as two grades of Judicatories?

Answer. Reasons:—

I. General reason, this. For the more effectually securing, on the part of the functionaries in question, appropriate aptitude in all its branches.

II. Particular reasons, applying to these several branches respectively, these—

i. Applying to moral aptitude, this:—namely, exemption from corruption and undue favour.

1. Independently of all qualifications and other securities, applying to the situation of the Judge appealed to, whatsoever be the sinister design in question, that it should be pursued by two is, at the least, twice as improbable as that it should be pursued by one: especially two, in regard to whom effectual measures are taken to prevent their having had any personal communication, one with another. As to this, see Section 17, Migration.

2. Even supposing, on the part of the judge below, no matter from what cause, a desire ever so strong to show undue favour to a party on either side, and thus to produce the effect of a decision varying in any manner or degree from that which the justice of the case requires,—still, unless the judge below regards himself assured of a determination on the part of the judge above, to give effect to this desire, no adequate inducement will he have for the commission of the supposed injustice: the more flagrant the injustice, the stronger his assurance of undergoing legal punishment at the hands of the constituted authorities, his superordinates, or loss of reputation at the hands of the Public-Opinion Tribunal—one or both: and this without reaping the undue benefit he had proposed to himself.

3. True it is, that the assurance of the non-success of the supposed criminal designs, depends on the ability of the party in question to avail himself of the remedy held out by the power of the Appellate Judicatory: for wheresoever, by relative indigence, or any other obstacle, (which, without preponderant evil, it is in the power of the government to remove,) a man is rendered unable to avail himself of the relief thus proffered to him by law, the proffer thus made to him is a cruel mockery; and hence the need of a system of Procedure, in which expense, delay, and vexation, are minimized; as also of arrangements for administering, at the expense of government, aid, as far as needed, in the shape of professional assistance, and money or money’s worth, for the expense necessary to the exhibition of evidence; as to which, see Section 13, Justice for the Helpless; and Ch. xx. Eleemosynary Advocates; and Ch. xvii. Judicial Inspectors. Remains, however, at any rate, the check, applied to the Judge’s supposed improbity, by the fear of punishment and censure as above: finally, see Section 32, Judges’, &c., Securities for appropriate aptitude.

ii. Applying to intellectual aptitude, (knowledge and judgment included,) this:—namely, the benefit of experience.

At the commencement of his career, the Judge Immediate will be an untried man: untried,—that is to say, in his situation of Judge principal; though, by the necessity of his having previously served in the situation of Judge Depute permanent, as per Ch. xiv., or that of Judge Depute occasional, as per Ch. xv., provision for his being endowed with this same desirable quality has been made. Here, then, is one course of trial: and, the case being such, that, in the situation of Judge Appellate, no person can have place without his having, for a considerable length of time, served in the situation of Judge Immediate principal, accordingly, so it is, that to that one course of trial is added a second.

iii. Thirdly and lastly, applying to appropriate active aptitude:—like security for, and probability of, increase of this branch of appropriate aptitude.

iv. Of all these causes of increase of aptitude, the existence and the influence being open to all eyes,—hence the probability not only of actual increase of aptitude, but, on the part of the people, a general persuasion of its existence; and, consequently, a correspondent confidence in the whole of the judicial establishment, coupled with a sense of security in their own breasts.

Ratiocinative.

Art. 7. Question 2. Why not more than two?

Answer. Reasons:—

1. Because of the vast increase of expense, delay, and vexation, without any adequate degree of probability of appropriate aptitude on the part of the ultimate decision; and correspondent confidence on the part of the people.

2. To come to particulars. Suppose, instead of two such grades, three. From the Immediate Judge, appeal to a Judge Appellate; from the Judge Appellate, appeal—say to a Judge Super-Appellate. Suppose now the decision of the Immediate Judge confirmed by the Judge Appellate, then reversed by the Judge Super-Appellate. Here then are in favour of the decision two voices—say accordingly two chances; in disfavour of it but one; the consequent result is, it is reversed. Of the Super-Appellate Judge the appropriate aptitude in all its several branches, has more chances in its favour, than that of either of his two subordinates. True: but has it more than both of them put together? for if, in respect of length of triedness, he has the advantage over both his subordinates, still has his immediate subordinate, the Judge Appellate, no inconsiderable stock of that desirable quality: and thus, from the vast addition made to the expense, delay, and vexation by this addition of a third grade to the machinery, no other addition would be made to the probability of rectitude of decision, than that which would be made by the difference between the lesser degree of appropriate aptitude on the part of the Judge Appellate, and the supposed greater degree on the part of the Judge Super-Appellate: for, in this case, by undue partiality on the part of the Judge Super-Appellate, injustice may be done no less easily and effectually, than by the like partiality on the part of the Judge Appellate in the former case. At all events, what adequate assignable grounds can there be in this case, for confidence in the justice of the decree pronounced by the Judge Super-Appellate?

But, (as per Ch. xxii. Appellate Judicatories,) of several modes of change—all of them equally capable of having place—simple reversal is but one: let in the several others, and see what endless confusion, with addition to expense, vexation and delay, at each grade, would be the consequence.

Suppose, then, grades of jurisdiction, one above another, to the number of six or seven. Think of the confusion and denial of justice which in such a case cannot but have place! Think of the contempt of the ends of justice, which in that same case cannot but have place in the minds of the constituted authorities, by whom that same state of things is kept on foot!*

Ratiocinative.

Art. 8. Question 3. Why thus in every sort of suit?

Answer. Reasons:—

Because, if, in the case of any sort of suit, such repeated trial and opportunity of investigation as above, affords the sort of security in question, so, in that same degree does it in the case of every other sort of suit: between no two sorts of suits does the nature of things admit of the drawing to this purpose any determinate line of separation.

Instructional.

Art. 9. If there were any sort of suit in which, to the right of appeal, no condition or restriction whatever were applied, a denial of justice would in so far have place, to the prejudice of every person by whom the expense, delay, and vexation, inseparable from the application of this remedy, cannot be endured.

Hence, on the part of the Legislature, the necessity of using all necessary and practicable endeavours—

1. To minimize in every case the expense, delay, and vexation attendant on appeal.

2. So to order matters, that when he, who is desirous of appealing, is unable to endure that burthen, the necessary aid shall be afforded to him from some other source or sources:—as, for example, from the purse—either of some voluntary contributor or contributors, should any such come forward; or, if the judge think fit, from the purse of the adverse party: (notwithstanding that of him it cannot as yet be known, whether he be in the right or in the wrong); or lastly, from that of the public, as a dernier resort.*

3. And that in the long run, from no ungrounded appeal, shall profit, in any shape, be made by the appellant.

Section V.

Number in a Judicatory.

Enactive.

Art. 1. Exceptions excepted, in no Judicatory number of seats more than one. As in an Immediate Judicatory, so in an Appellate.

Ratiocinative. Instructional.

Art. 2. For reasons, see those which apply to the case of a situation in the Administrative Department, (Ch. ix. Section 3.) To the present case, they will all of them be found applying: and, if with any difference, with increased force.

Ratiocinative.

Art. 3. To the reasons which apply to that case, add in this case, the additional control applied and information afforded, by means of the constant contestational discussion, with the assistance of Advocates, at the pleasure of the parties specially interested,—and Appeal with like discussion and assistance, also at the pleasure of those same parties.

Expositive.

Art. 4. Exceptions are—

1. Of necessity, for extraordinary occasions, the Supreme Judicatory, the Legislature. See Ch. vi. Sections 27, 28.

2. For ordinary occasions, the Quasi-Jury, as to all the elementary judicial functions but the imperative. See Ch. xvi. Section 3.

Art. 12. To France is confined the inadequate counterbenefit of a many-seated judicature, and in this case the benefit belongs not to judicature, but to legislation. It consists in a weakly additional control exercised over the sinister interest of the Monarch, by strength given from multiplicity to the control applicable by the Judicial Establishment: and a sort of virtual negative upon the laws, exercised by the members of the Judicatory, at their peril, and never without more or less of self sacrifice. Under the original form of government, this negative was applied to the law itself before enactment: under the present form of government, it cannot any otherwise be applied, than in this or that individual case under the law, after its enactment.

Number of Judges in the highest and most influential Judicatory, the Cour Royale, no fewer than fifty-six, whereof Presidents six. Salary eighteen thousand francs or £720 a-year. Yet under such a Constitution who can say but that, in the character of a check to arbitrary power and misrule,—the power of the legislative assemblies being rather a cloak and a coat of mail for it, than a bridle,—even this expense may be well employed. As to the money, were it not wasted in Judges, it might be wasted in Jesuits.*

Instructional. Exemplificational.

Art. 13. In England, four Judges are paid for doing badly, that which (as has been seen above) would be done much less badly by one: the expense to the public consequently thus far quadrupled.

Of course this observation applies solely to that part of the business, which is exclusive of that which is called the trial, and which, if the ends of justice were the objects, would not be done at all.

Portions of the business in which this waste of dearly paid labour has no place, are—1, the business called the trial: in which the elicitation of evidence is performed in the best mode; 2, that part which is called the chamber business, and which is carried on, the whole of it, under a veil of secrecy: no person being present other than the professional lawyers—men whose interests it is, that the ends of justice should be in as high a degree as possible contravened: expense, delay, and vexation maximized.†

Here then on the part of the law, added to the reproach of inaptitude, is that of inconsistency: the mode of performing the business in full Court—four Judges being present, cannot be justifiable, or the mode of doing it at chambers must be condemned: the mode of doing the business at chambers, cannot be justifiable, or the mode of doing it in Court, must be condemned.

Three is the number of these judicatories: three, the number of the instances in which the superfœtation just described, has place.

Instructional. Exemplificational.

Art. 14. Peculiar to those judicatories in and by which the species of pseudonomia—of sham, and Judge-made law, styled Common Law, in contradistinction to Equity, is administered, is this quadruplicity thus preferred and substituted to unity: in no instance in which Equity is the name of the thing which is administered, has it place: not in any one of the three superior Judicatories, so strangely piled up, one above another, styled the Vice-Chancellor’s Court, the Master of the Rolls’ Court, and the Lord High Chancellor’s Court: nor yet in any one of those inferior Judicatories in which the Judge is styled a Master in Chancery.

Nor yet is this quadruplicity sufficient in all cases. In certain cases, it is trebled: twelve‡ the number of the Judges: the Judges of the three common Law Courts being packed together for this purpose. And these cases in which the demand for appropriate intellectual aptitude is regarded as being at a maximum, what are they? They are mostly of a sort in which no man in whose instance the most common sense has place in union with common honesty, would regard the case as a fit one for the being argued: where for instance the question is, whether a man shall be deprived of his right, because a lawyer’s clerk has made a mistake, unintentionally or intentionally, in the writing of one of the letters in a word.

To the three puisne, pronounced puny, meaning junior, Judges, any one of several very advantageous substitutes might be proposed: any one, or for choice all of them. On an occasion on which the opinion of all four are delivered seriatim, after the chief has delivered his opinion, “I am of the same opinion,” are the words commonly pronounced by each of the three puisnes. If then it be necessary that for this purpose, on this occasion words should be employed, animated substitutes would be necessary. On this supposition, the substitute would have to belong to that class of animals in whose instance, wings with feathers are substituted to arms with hands: a parrot, for example, a mino, or a starling. But when the import is not over complicated, expression may be given to the opinion, by visible as well as by audible signs. Arrayed in judge’s robes might be the figure of a man in wax work, or a painter’s lay-man, and wire in hand, the office of the puppet show-man, might be performed by my Lord Chief Justice.

Of the whole four, the only one in whose instance any real demand for rationality, or what passes for such, has place, is the Chief Justice. For he, being always a lord, and generally a peer—a member of the House of Lords—sometimes even a Cabinet Minister,—all the authority that depends upon opinion, all the influence, is to him a subject matter of exclusive property. On ordinary occasions, by him is said whatsoever is said: by the other learned persons, either nothing at all is said, or the sort of something which has just been mentioned.

“I have not been consulted, and I will be heard.” Some 67 years ago, did the author of these pages hear Willes, puisne Judge of the King’s Bench, utter a declaration in these very words, in the ears of an astonished audience. Not least was the astonishment of the Lord Chief Justice—the great Earl of Mansfield, against whose authority rebellion was thus committed by a speech thus audacious and unprecedented.

Instructional. Exemplificational.

Art. 15. As to the part borne by the House of Lords in judicature, no other imaginable Judicatory can be so unfit for rectifying honest errors.

1. The vast majority of Members are ignorant of the law, and destitute of appropriate knowledge.

2. They are destitute of judicial aptitude, by indolence, and carelessness, the necessary concomitants of pre-eminent opulence.

3. Thence also destitute of appropriate active aptitude.

4. By extensiveness of private connexion, pre-eminently exposed to corrupt partiality.

5. Obligation of attendance, none: those alone attend, with perhaps one or two exceptions, who are brought thither, by the influence of some particular and sinister interest.

6. To crown the absurdity, the Chancellor has the direction of this Judicatory, of which the chief occupation is, the sitting in judgment on his decisions: a complete mockery of justice.

Instructional. Exemplificational.

Art. 16. From the highest, look at the lowest species of Judges—the Justices of the Peace. In quarter sessions, they sit in unlimited numbers.

In comparing the French and English systems together, there will be found in the French practice, errors in principle, but consistency in application. In the English practice, principle, none: inconsistency consummate.

In the French system, suits being classed according to the supposed order of their importance, those to which the least importance is ascribed, are allotted to single-seated Judicatories: those to which the highest degree of importance is ascribed are allotted to the highest number of Judges, who also receive the highest remuneration. The assumed principle is, that the probability of justice is in the direct ratio of the number of Judges in each Judicatory: and upon this assumed principle they act with perfect consistency.

Section VI.

Fields of Service.

Greatest number of miles thus to be travelled in the day of 24 hours, 24 miles.

In this state of things may be seen the standard of reference: the dimensions proposed to be, in each individual case given to the immediate judiciary district, as nearly as the causes of variation will allow.

Causes of variation, these—

1. The inequalities of the earth’s surface.

2. The interposition of surface covered with water on the line of road.

3. Greater or less deviation of the line of road, from a direct course.

4. State of the road, in respect of material, drought, moisture and repair.

5. Distance of the town, exclusively or preferably adapted to the accommodation of the actors on the judicial theatre. As to these actors, see Section 2.

Ratiocinative. Instructional. Exemplificational.

Art. 6. Of the immediate judicial districts, why render thus great the number, and consequently the aggregate of the expense, necessary for the remuneration of the several judicial functionaries?

Answer. Reasons.

1. To save the expense of attendance at the Justice Chamber, on the part of suitors, or say parties, and other evidence-holders: for, to every suitor in whose instance that expense cannot be borne, justice is denied.

2. To save the delay, which of necessity has place, where suitors or other evidence-holders will have to travel from distances as above: a delay, the magnitude of which will of course increase in proportion to such distance.

3. As to the expense—by arrangements peculiar to this system, reduction will be applied to it. These are—

I. All-comprehensive establishment of single-seated, to the exclusion of many-seated Judicatories: as to which, see above, Section 5, Number in a Judicatory.

II. Of Judges, to a number unlimited, yet universally and constantly sufficient, the institution, in the situation, and under the name, of Judge Deputes. As to these, see Ch. xiv. Judge Immediate Deputes permanent, and Ch. xv. Judge Immediate Deputes occasional.

III. Of each such Judge, rendering the logical field of service all-comprehensive: thereby obviating the necessity, and excluding the practice of splitting the logical field, into irregular and numerous scraps of undeterminate form and dimensions, with a Judge or set of Judges, for taking cognizance of each: as to which, see below, Arts. 11, 12, and 13.

Instructional.

Art. 7. Of the immediate Judicial Districts the dimensions as above, are determined by the care taken to secure to suitors and evidence-holders, the faculty of paying personal attendance at the Judicatories during the hours of business, without sleeping elsewhere than at home.

But in the Appellate Judicatory, according to the system of Procedure attached to the present Code,* no evidence-holders will have to pay attendance, nor yet of necessity any suitor on either side: the whole of the evidence being, along with the instrument of appeal, transmitted from the Immediate to the Appellate Judicatory: the whole of the proceeding thereon, consisting in argument alone, on the subject of the evidence as transmitted from the Judicatory below.

As to Appellate Judicial Districts, whether there shall be any, and if any, what shall be the Immediate Judicatories respectively subordinate to the several Appellate Judicatories having their seat in those same Appellate Judicial Districts, it will depend in each State upon the extent of its territory, and the facility of inter-communication between each part and every other.

In a country such as England, in which the communication between each part and every other, whether of persons or papers, is in a manner instantaneous, neither need, nor so much as use, would there be for any Appellate Judicatories, elsewhere than in the metropolis: nor consequently for any Appellate Judicial Districts: and the metropolis being the seat of the best public, that is to say, the spot in which the number of the most enlightened men capable of acting with more or less attention in the character of Judicial Inspectors, as per Ch. xvii,—here would be abundant reason for taking the metropolis for the seat of all those same Appellate Judicatories, whatsoever were the number of them.

Taking the case of England (exclusive of Scotland, Ireland, and the distant dependencies) for the standard of comparison, and setting out from this mark, the demand, if any, for Appellate Judicatories elsewhere than in the metropolis, will be greater and greater as the territory of the State is the more and more extensive, the state of the population less and less dense, and the inter-communication of persons and papers less and less expeditious.

As it is with every other thing valuable, so is it with the benefit from judicial service,—expense, when operating as a condition to the attainment of it, produces the effect of a denial of it, to all who are unable to defray that same expense: intended or not intended, a further effect which it has, is therefore the delivering over to depredation and oppression, at the hands of all who are able, all who are unable to defray that expense. The practical inference is—that either in this case the right of making appeal must be denied, or the expense inseparable from it, must be laid on the shoulders—either of the public, or of the party opposite to that one by whom the appeal is made.

Expositive.

Art. 8. Determined by, and composed of, the sorts of suits, of which the Judge is empowered to take cognizance, in consequence of the originating application, is the logical field of service of each immediate Judge.

Expositive.

Art. 9. By the originating application, understand the application in and by which the suit takes its commencement: as to which, see the Procedure Code, Ch. viii. Judicial Application, and Ch. xiv. Suits, their sorts.

Expositive. Instructional.

Art. 10. Under the Procedure Code appertaining to this Pannomion, originating applications are capable of being made for purposes more than one: but that which is most frequently exemplified, is that by which commencement is capable of being given to a suit, the application having for its object the admission of the applicant, or the co-applicants, in capacity of a Pursuer or Pursuers, in relation to some other person or persons, in the character of proposed Defendant or Co-Defendants. For the other modes of application, see the Procedure Code, Ch. viii.: and in the meantime see Section 19, Judges’ Contested-interpretation-reporting Function; Section 21, Judges’ Execution-staying Function; Section 22, Judges’ Preinterpretative Function; and Section 24, Judges’ Non-Contestational-evidence-elicitation Function.

Enactive.

Art. 11. With the exception of those sorts of suits, the cognizance of which belongs as per Section 1, to the Excepted Judicatories, of all sorts of suits whatsoever, is the Judge of every Immediate Court, competent to take cognizance. Those exceptions saved, all-comprehensive is the power of the Judicatory;—omnicompetent the Judge.

Enactive.

Art. 12. Co-extensive with the logical fields of the several Immediate Judicatories respectively, and subordinate to them, are the logical fields of the several Appellate Judicatories: saving the above exceptions, all-comprehensive is the logical field of each Appellate Judicatory; omnicompetent each Appellate Judge.

Ratiocinative.

Art. 13. Why, with the exceptions above-mentioned, render the logical fields of all these Judicatories all-comprehensive?

Answer. Reasons—

1. By any division made of the sorts of suits among different sorts of Judicatories, complication would be established: which complication is altogether useless, and would be purely mischievous.

2. Mischievous it would be in proportion to the number of fractions into which the logical field were thus broken: even supposing the limits of them, every one of them, ever so clearly determined and described.

3. Adjusting the boundaries between one sort of suit and another, is in its nature a work of the utmost nicety: not capable of being performed with any tolerable degree of accuracy, without a most correct and all-comprehensive conception of the whole field of law and legislation: and even in that case, scarcely capable of being performed without giving rise to doubts and disputes, and thence to suits, in number unlimited, and all of them purely mischievous: add to which, jealousies and conflicts of authority between Judge and Judge; all which conflicts are, by this simplicity of contrivance, completely obviated.

4. Of this partition of the logical field of judicial service—of this splitting of jurisdiction, the efficient cause has been in the state of the political rule of action in periods of comparative barbarism: in the conflict between power and power, and between pretension and pretension among the ruling few, among whom the aggregate power of the State was at different times divided.

From this source has also flowed the evil of uncertainty, and increase of uncognoscibility. Different modes of endeavouring to come at the truth—different sets of rules for this purpose have been among the actual, though not the necessary, consequences of it. In every case, the right and proper ways of endeavouring to come at the truth are in fact the same: the consequence is, that if between any two there be any difference, one of them at least must in so far be wrong. But on the field in question, in no instance has the way pursued in this endeavour been the right one, or so much as in any degree approaching to it: and thus, of this division, an accompaniment if not a consequence, has been—not only aberration from the line of rectitude, but a system of aberrations in vast variety as well as multitudes.

5. Under the all-comprehensive system of Local Judicatories herein established, observation has already been made, as per Art. 6, of the expense saved by the undividedness of the logical field of service. Behold here, how vast that saving is. In any one of these Judicatories, suppose but one such fissure, and one additional Judicatory the result of it. By whatsoever reason the demand for the fissure, and the consequential additional Judicatory, has been produced in any one Judgeshire, by that same reason would be produced a demand for the same fissure in every other. Now, then, for the result in numbers. Number of Immediate Judicatories, if there be no such fissure, suppose 100: make one fissure, the number will be 200: make two fissures, it will be 300, and so on.

To a greater or less extent, this sort of needless, useless, and pernicious fissure, has place as yet in the Judicial establishments of all civilized nations, under all governments: but under no government to an extent near so enormous as under that of the British Empire.

For a pretty full display of this mischievous complication under the English and English-bred system, see Justice and Codification Petition, (in vol. v. of this collection.)

Section VII.

Intercommunity of Judicial Service.

Instructional.

Art. 1. As in all departments in general, so in particular in the Judicial, not for the gratification of individual pride, but for the fulfilment of the ends of Government, is authority committed to public functionaries.

Enactive. Ratiocinative. Expositive.

Art. 2. Between the Judge of one Immediate Judicatory and that of another, intercommunity of service as complete as the nature of the case admits, has place. For maximization of the execution and effect given to the ordinances of the law,—and for minimization of delay, vexation, and expense,—to every Judge, who (with relation to the suit, or initiatory judicial application in question) is the original, or say the originating Judge, belongs, under the conditions stated in the Procedure Code, the discretionary power of invasion, with reference to the local field of service of every other Immediate Judge. Name of this same power,—power of invasion.

Expositive.

Art. 3. By the originating Judge, understand him in whose Judicatory the initiatory juridical application has been made; application to that same individual effect not having, by that same applicant, been made to any other Judicatory.

An initiatory application is either petitory, or simply informative: petitory, when it has for its object the obtaining admission for a demand to a determinate effect made by the applicant, whether on his own account, or on account of some other person certain: simply informative, when made by a person without desire expressed, of becoming himself pursuer in a suit or petitioner for any other purpose, or of seeing any other determinate person admitted in that character: as where the subject matter of the information is—the supposed commission of some supposed offence by some person as yet unknown,—or the existence of some danger whether to person or to property, to the obviating of which the exercise of judicial authority may become conducive. See Procedure Code, Ch. xii. Initiatory hearing.

Instructional.

Art. 4. Of the cases in which, purposes for which, and acts or say operations by which, juridical invasion as above, may be necessary to the accomplishment of the ends of justice, examples are as follows:—

I. Cases. Situated within the territory proposed to be invaded, a person or a thing necessary to be acted upon by the invading Judge, for the giving execution and effect to the portion of law on which the application is grounded.

II. Purposes. 1. Securing eventually employable means of execution for judicial orders, by which the service demanded by a pursuer or other applicant, will be rendered: 2. Obtainment of means of proof, or say evidences, or sources of evidence necessary to constitute a ground in point of fact for the demand.

III. Acts, or say Operations. 1. Accersition: 2. Prehension, followed by adduction, sistition, or transduction: 3. Epistolary interrogation: 4. Visitation and inspection.

Instructional.

Art. 5. Between one and another of these several modes of proceeding, the nature of the case will commonly require the option to be made. For the considerations by which it will be to be determined, see the Procedure Code, Ch. xxi. Judicial Transfer, and Ch. xviii. Means of Execution.

Enactive. Instructional.

Art. 6. Of every such act of invasion, the invading will, in the promptest mode in use, give notification to the invaded Judge. For appropriate formularies, see the Procedure Code, Ch. xxi.

Enactive. Instructional.

Art. 7. If, in his opinion, consideration had of circumstances such as the above, the ends of justice may be more effectually attained in this or that other Judicatory: the original or say originating Judge will dismiss the application made to himself. He will in that case point out such other Judicatory in which, for the reasons by him declared, he recommends it to be made.

Instructional.

Art. 8. If, on the examination, it appears that, on occasion of this same demand, any petition or informative application has already been made by or on behalf of the same applicant in another Judicatory, and that no such recommendation as per Art. 7, has therein been given, it will be matter of consideration for the Judge, whether to retain the application, or, as being vexatious, dismiss it. For the responsibility, compensational, and punitional, which, in the case of such virtual appeal, if ungrounded, may be requisite for the repression of juridical vexation; see the Penal and Procedure Codes.

Enactive.

Art. 9. Every such invading Judge takes with him into the invaded territory his own rank and power, subject only to the rank and power of the Judge of the territory so invaded.

Enactive.

Art. 10. In so far as, if the order of the one Judge is executed, the execution of an order of the other Judge is thereby impossibilized,—the prevalence belongs generally to the order to which execution has begun to be given, before it has begun to be given to the other.

Instructional.

Art. 11. Of the incompatibility thus brought to view, examples are as follows:—

i. By an accersitive, or say hither-calling mandate, of the invading Judge, the attendance of a certain person at a certain point of time at his Judicatory, is required. By the invaded Judge, he being ignorant of such order, the attendance of that same person at that same point of time at his Judicatory, is by an appropriate mandate required.

ii. By a prehension mandate of the invading Judge, for the purpose of securing the means of eventual execution, to a demand on the ground of debt, property situated within the territory of the invaded Judge, is required to be prehended and kept in custody: by a like order of the invaded Judge, for the like purpose, on occasion of a similar demand by another demandant, that same property is required to be so dealt with at the same point of time for the benefit of such other demandant.

For examples of the case where the subject matter of prehension is a thing immoveable, see the Procedure Code, Ch. xxii. Prehension.

So also when it is a thing incorporeal.

So also as to what ought to be deemed a beginning of such execution.

Enactive.

Art. 12. But in case of disagreement as to the priority in point of time, the prevalence belongs provisionally to the mandate of the invaded Judge.

Expositive. Enactive.

Art. 13. Jurisdiction-adjustive function. To this function exercise is given, by an imperative mandate, declaring on Appeal from either of the thus conflicting mandates, to which of them execution shall be definitively given. This function, if the territories are situated both within the same Appellate Judicial District, belongs to the Judge Appellate; if in different Appellate Judicial Districts, to the Justice Minister.

Instructional.

Art. 14. In the exercise of this same Jurisdiction-adjustive function, it will be for the superordinate functionary to take care, lest by the one subordinate, the invasion be unduly declined or unduly performed; or by the other, unduly acquiesced in or opposed: as also, lest, by collusion on the part of one or both, priority of execution in favour of this or that party on either side, be unduly obtained.

Enactive. Instructional.

Art. 15. Provisional only is the prevalence in the above examples spoken of. Between counter-demandants, whether in the same or in different judicial territories,—for the arrangements made for ultimate equality or proportionality of distribution, as of burthens, so of benefits; see the Procedure Code, Ch. xiv. Suits, their sorts.

Ratiocinative.

Art. 16. This intercommunity, why instituted?

Answer.

Because, in the whole territory of the state, there exists not any spot on which, for giving effect to a just demand, and giving in that respect execution and effect to the correspondent portion of law, it may not be necessary for the judicatory applied to, whatever it be, to exercise its authority within the territory of any and every other judicatory: and this, whatsoever may be the relation of the individual to the suit, whether pursuer, defendant, witness, or the proxy or assistant of a pursuer, or a defendant.

Expositive. Instructional.

Art. 17. Consistently with the intercommunity, with the correspondent universally mutual power of invasion of jurisdiction, as here established, how is it, that to any Immediate Judicatory, any peculiar local field of service can belong?

Answers.

1. Of each suit, or other judicial application, the cognizance will belong in the first instance to the Immediate Judicatory of the Judicial District, in the Justice-Chamber of which the judicial application is made: and by any person may judicial application be made, to the judicatory in the territory of which, at that moment, he is in existence.

2. In the ordinary state of things, or in the state of things most frequently exemplified, to the lot of that same judge will it fall to carry the suit through, from beginning to end: to elicit the whole of the evidence, and after issuing thereupon his definitive decree, to give execution and effect to it accordingly: and, as well for the purpose of the elicitation of the evidence, as for the purpose of such execution and effect,—the persons on whom, and the things on which, it will be necessary for him to operate, will be situated within that same district.

3. In comparison of this state of things, an extraordinary one is, that in which, for any purpose, the suit or other judicial application will have to pass, though it be but for a moment, into the hands of the judge of any district other than that of the judge first applied to,—the originating judge, as above.

4. This being the case—it follows that the judicatory in which the suit originates, will be the judicatory in which the application in which it originated was made, before the applicant had made in any other judicatory an application demanding at the hands of the judge that same service.

5. But it does not follow, that for a single moment after the examination of the applicant has been completed, the suit will continue in that same judicatory: retained there, it will be, or dismissed, as to the judge may seem most fit: the applicant being in this case, advised or not advised to transfer the suit, and make application accordingly to the judge of this or that other district, or say judgeshire.

6. Under the Procedure Code, appertaining to this Code, on the occasion of every such original application,—it will, before the termination thereof, have been the care of the judge, to ascertain as far as can be done, by the examination of the applicant, whether, in his judicatory without invasion made into any other, or transfer of the suit to any other, the suit can be carried through from beginning to end: and if not, at what stage of the suit, the invasion or the transfer respectively will have to be made; that is to say, in all cases, with the minimum of expense, delay, and vexation.

7. To the number of the different judicatories, into which, at the same time, or at different times, one and the same suit may, upon this plan, have to pass, no possible limit can be assigned. Within judicial districts in any number, may be situated, at any point of time, in the course of the suit, pursuers in any number, defendants or proposed defendants in any number, or evidence holders in any number.

8. But from this diversification, how prodigious soever, no objection to the course here chalked out is deducible. Be the degree of complication, which in these respects has place, what it may,—by the natural system of procedure here employed, this complication, with the quantum of expense, delay, and vexation, attached to it, may in any degree be diminished; but it cannot be in any degree increased: for supposing, (what however will not in any instance be found to be the case,) that by the technical system, the aggregate amount of these same evils will be minimized, that same course will the judge have it in his power, in the individual case in question, whatever it be, to pursue, and cause to be pursued.

9. Yes, it may be said, in his power it will be: but with the power to do so, will the will to do so, be his likewise? Answer. Yes, it will. And why? Because,

I. Remuneration by fees—or, in one word, fee-gathering—being effectually excluded,—in no shape will profit be capable of being made by the judge from any undue extension given by him to the field of his service.

II. By the all-comprehensive system of minutation, applied to whatsoever is either said or done, in relation to the business in hand, by any person present, as per Ch. xxi. Immediate and Appellate Judiciary Registrars; Section 5, minutation how, and the scrutinizing inspection of the public eye, as per Ch. xvii.; Judicial Inspectors, being continually brought to bear upon his conduct, in this respect as in all others,—an efficient motive for doing right will thus be operating upon him at all times; while, as above, no motive for doing wrong, will be operating on him at any time.

Instructional. Ratiocinative.

Art. 18. But for the determining to which judicatory, for the purpose of all suits taken together, jurisdiction, in the most ordinary case, over all persons and things situate within the territory of that same judicatory, appertains,—the practical need, use and reason is this: if operated upon, at the instance of sets of parties more than one, the same person, or the same thing, cannot always be operated upon with the same advantage to both sets. In the character of an evidence-holder, for example, the same person cannot be examined in the Justice-Chambers of two different judicatories at the same hour; nor even in two Justice Chambers of one and the same judicatory in the same minute: one and the same thing, moveable or immoveable, or one and the same mass of money, cannot be disposed of, at the same moment of time, with equal advantage to one set of suitors in one suit, and to a different set of suitors, who are such in a different suit: hence, in these cases of conflicting interests, will come the need of articles of law, enactive or instructional, or both,—for determining to which set of suitors (that is to say, to those parties respectively, which in each such suit have right on their side) the advantage shall be given.

Instructional.

Art. 19. As to persons, if in the district of any judicatory, the person in question has a fixed place of residence, not having any such place in the judgeshire of any other judicatory,—to the power of the judge of that same judicatory will this same person be in a state of subjection, on and for all ordinary occasions: and, for example, for the purpose of a suit, on the occasion of which, the judge of that same judgeshire has been the originating judge. But, for the purpose of some suit which is in pending in the Justice-Chamber of some other judicatory, it may be necessary that this same person should be examined, and desirable, were it possible, that he should be examined at this same moment of time: here, then, is an occasion on which, and a purpose for which, it may be necessary to distinguish the two different judicatories by correspondently different denominations: the one being the originating, or say original judicatory, and as such having ordinary jurisdiction over the person in question; the other extraordinary, and casual jurisdiction: the one having jurisdiction over him in home suits; the other in extraneously instituted suits.

Instructional.

Art. 20. In a case of a conflict of this sort, it may happen for example, that a person having been brought before the judge of a certain judicatory in virtue of a mandate issued by him, in the course, and for the purpose of a suit which had taken its origin in his judicatory, a claim may be laid to the examination of him, or even the extraduction of him, by a suitor, in a suit which had originated in a distant judicatory, that claim having for its ground, correspondent mandate issued by the judge of that same distant judicatory. In this case, it may be necessary that the judge, by and before whom this person is so under examination as aforesaid, should, for the purpose of deciding to which of the two claims the preference is due, take cognizance at the same time, of the two different suits,—namely, that which originated with himself, and that which had originated with the above-mentioned distant judge.

Here then may be seen a demand for divers regulations of procedure, neither the tenor, nor even the purport of which belongs to the present purpose, but of which, for explanation of what does belong to it, it seemed necessary that this general indication should be made.

Section VIII.

Functions common to Judges.

Expositive.

Art. 1. Non-distinctive and distinctive—into these two classes may be divided, in the first place, the aggregate composed of the functions belonging in common to judges.

Expositive.

Art. 2. By non-distinctive, understand those which belong in common to judges and to ministers, as per Ch. ix. Ministers collectively; Section 4, Functions in all.

Enactive.

Art. 3. To each judge, as well Appellate as Immediate, within his fields of service, in relation to the several judicial officers, acting in subordination to his authority, as per Section 3, Judiciary Functionaries, belong (subject to the direction of the Justice-Minister) non-distinctive functions, which follow—

1. The locative, suppletive, directive, and dislocative functions.

2. In relation to his own office, or say situation, the self-suppletive.

3. In relation to things, in so far as by him employed, habitually or occasionally, in the exercise of his other functions—belong the procurative, custoditive, applicative, reparative, transformative, and eliminative functions: exercisable these six in conjunction with the Finance Minister: as to which, see Ch. ix. Ministers collectively; Section 4, Arts. from 45 to 53: and, of the present chapter, Section 33, Judiciary Apparatus; Section 34, Justice-Chambers; and Section 35, Judiciary Habiliments.

4. In relation to persons and things, as above, the inspective.

5. In relation to persons, things, and occurrences thereto belonging, by and with the instrumentality of the Registrar of the Judicatory, (as to which see Ch. xxi. Immediate, &c. Judiciary Registrars,) the statistic, recordative, (or say minutative,) officially-informative, and publicative.

Art. 13. Exercised by all Judges, are the several functions, to which exercise is given by the issuing of the several mandates, by execution of which, or compliance with which, the business of procedure is carried on.

Examples, are those which follow:—

1. Accersitive, or say hither-calling: exercised by an incidental mandate, sent to a party for example, or to an extraneous witness, requiring his attendance at the Judicatory.

2. Missive, or say thither-sending.

3. Scrutative, or say search-making, or search-commanding: exercised by search made, or commanded to be made, for the body of a person, or thing, or both.

4. Prehensive: exercised by causing possession to be taken of a person or a thing, or both.

5. Sistitive: exercised by causing the subject matter of the prehension, as above, to be kept at the place at which it has been prehended.

6. Adductive: exercised by causing it to be brought to the Judicatory.

7. Extraditive, or say transmissive, or transductive: exercised by causing it to be delivered at some place, other than that, from which the mandate issued.

8. Restitutive: a mode of the extraditive: exercised by causing delivery to be made of a person or a thing into the custody of some person, in whose custody, he or it, had antecedently been.

9. Eliminative, or say abductive, or say ejective: exercised by simply causing the subject matter to be removed out of the place in question, without mention made of any particular place into which the removal shall be performed.

For other functions of a judicial nature, see Ch. xxv. Local Headmen; Ch. xxvi. Local Registrars; Ch. xxviii. Prehensors, and the Procedure Code; Ch. xxii. Prehension.

Expositive.

Art. 14. By the judicative, or say appropriately executive function exercisable by a Judge, by which, as per Art. 4, execution and effect is given to ordinances of the Legislature or a Sublegislature, understand, in like manner, the function, by the exercise of which execution and effect is given to any alleged rule of so styled unwritten law, alias conjectural, alias inferential, alias jurisprudential, alias Judge-made law: to wit, so long, and in so far, as any part of the rule of action, and basis of judicature, has been left still floating, or rather tottering, upon that imaginary, purely fictitious, nebulous, and perpetually delusive, and uncertainty-and-insecurity-perpetuating ground.

Expositive.

Art. 15. By exercise given to, and appropriate application made of, the power attached to the executive function, as just described, exercise will be given to certain other functions, which form respectively the subject matter of so many sections hereinafter ensuing: that is to say, Section 10, Judges’ self-suppletive function; Section 11, Judges’ sedative function; Section 12, Judges’ aid-compelling function; Section 19, Judges’ contested-interpretation-reporting function; Section 20, Judges’ eventually-emendative function; Section 21, Judges’ sistitive or say execution-staying function; Section 22, Judges’ pre-interpretative function; Section 24, Judges’ non-contestational-evidence-elicitation function.

Section IX.

Judges, &c., Elementary Functions.

Expositive.

Art. 1. By the elementary functions belonging to a Judge, understand those, the conjunct exercise of which is, in the ordinary course of his business, included in the exercise of his several other functions, as per Section 8, Functions common to Judges; and in particular of the executive function, that being the one to the exercise of which the exercise of all the other functions is subservient.

Elementary functions common to every Judicatory, including both grades of Judicatories, Immediate and Appellate, and exercised personally by the Judge, are the following:—

1. Auditive function, as applied to oral discourse.

2. Lective function, as applied to written discourse.

3. Inspective function, as applied to written discourse, or any other visible document.

4. Interrogative function, orally exercised.

5. Interrogative function, epistolarily, or otherwise scriptitiously exercised. Note, that the interrogative is a particular application made of the hereinafter-mentioned imperative function.

6. Commentative function, exercised by making observation on what has been heard or seen.

7. Ratiocinative, or say Reason-giving function: exercised, by stating the considerations, which, in the character of inducements, led to the formation of the declaratory decree.

8. Declaratively-decretive, or say opinative function: exercised, by the delivery of an opinion: declaring that the meaning of the law is so and so, or that the fact or facts in question are so and so: with the inference as to the state of rights and obligations on both sides.

9. Imperatively-decretive, or say ultimately-mandative, or say imperative function: exercised, by the issuing of a judicial ordinance or mandate, in pursuance of the exercise given to the declaratively-decretive function.

10. Recordation-causing, or say Recordative function: exercised, by causing entry to be made in a book, of the result of the exercise given to any or all of the above-mentioned functions. Note, that in the recordative, are included the minutative and the custoditive: the minutative, by the exercise of which the entries are made; the custoditive, by the exercise of which they are kept and preserved.

11. Incidentally, or say interlocutorily-mandative, or say directive: exercised, by causing it to be received, by the several persons, at whose hands, on the occasion, and in consequence of a judicial application made to him, for the giving effect to the exercise of his executive function, antecedently to the exercise given by him to his imperatively-decretive, or say ultimately-mandative function, as above.

12. Incidentally-requisitive. This function is in itself the same with the incidentally-mandative: sole point of difference, the situation of the addressee, with reference to that of the addressor: the situation being—in the case of the incidentally-mandative function—subordinate; in the case of the requisitive function, co-ordinate, or in any way superordinate.

13. Incidentally-receptive: exercised by the reception of evidence in its several modes, or say forms, from its several sources, at the hands of the respective Evidence-holders. As to these, see Ch. vi. Legislature, Section 27, Legislation Inquiry Judicatory. Arts. 10, 11, 12.

Art. 13. Elementary functions, appertaining exclusively to the judge of an appellate judicatory, these which follow. They are such modes of the above-mentioned ultimately-decretive functions as bear reference to the exercise made of the corresponding functions, on the part of his subordinate, the judge of the immediate judicatory.

I. Primarily-decretive, these, to wit,—

1. The simply confirmative.

2. The simply nullifactive: as where, in a penal suit, a Defendant having been declared guilty by an Immediate Judicatory, is declared not guilty by the Appellate.

3. The reversive: as where a thing given to a Pursuer by the Immediate Judicatory, is given to the Defendant by the Appellate.

4. The substitutive: as where neither the arrangement prayed by a Pursuer, nor that prayed by a Defendant, is made, but one different from both.

5. The modificative: confirming the subordinate decree in part; altering it in any of the above ways, as to other parts.

II. Subsidiarily-decretive, to wit, interlocutorily-decretive, these, to wit,—

6. The suspensive: as to the whole, or as to a part or parts.

7. The accelerative, or say expeditive: exercised in so far as, in consequence of application made by a suitor, greater despatch than would otherwise be is given to the proceedings of a Subordinate Judicatory.

8. The sistitive, or say retardative.

9. The retrotransmissive, or say retromissive: whether for the purpose, 1. of receiving execution and effect; or, 2. of performance of fresh trial, or say Inquiry, in the Immediate Judicatory: and that, whether as to the whole of the facts collectively taken, or as to this or that fact exclusively: or, for the purpose of the execution and effect to be therein given to the decrees and mandates of the Subordinate Judicatory, when, and in so far as, no otherwise than partially confirmed.

Note, that in some instances, the above modifications may perhaps be found to coincide: and that, the five first may be considered as being not distinct and elementary, being only so many modifications of the ultimately-decretive function, exercised as above, by the Immediate Judicatory: but, in practice, in whichsoever of these points of view they are considered, will make no difference.

Ratiocinative.

Art. 14. Objection. The imperative has been stated as a function common to all judges. The Conciliation Judicatory, invented in Denmark, has been applauded, and the leading principle of it, adopted and employed in various other political States: in particular in France by Buonaparte’s Codes. Of its beneficial effects, the number of cases finally determined by the Danish Judicatories, afford a demonstration. Admitting, what cannot but be admitted, that for a large portion of the field of law and procedure, the imperative function must unavoidably be given to the judge, even on the first inquiry, and that in these Danish Judicatories, and all the judicatories derived from them, the opinative decree given by the judicatory, is not of itself conclusive, but leaves the door open to an application to an ordinary judicatory, in which the imperative function is added to the rest—still, why not imitate an arrangement, the usefulness of which, has to the general satisfaction of civilized nations, been so adequately demonstrated by experience? and accordingly why not employ it, in so far as employment has been in that case given to it?

Answer. By the judiciary system as here detailed, (with the imperative function attached in every case, to the others exercised by the judge,) will be done, all the good which ever can have been done by any one of these Conciliation Judicatories: and moreover, a great deal, which, constituted as they are, it has not been possible for them to do.

In the first place comes the list of those suits, to which it was found unable to give termination. Compared to those, to which it did give termination, small it is true, were they in number: but in respect of the aggregate importance, relation had to the pecuniary circumstances of the parties, there is no saying how great may have been the ratio of this small minority, to what it was in that.

When without expense, a chance for justice, were it ever so faint, was seen to be obtainable, no ground of complaint so frivolous, as not to send the claimant to the spot, where, without any expense but that of time, and without any part of that vast load of expense, delay, and vexation, which in all other instances they saw manufactured for the sake of the profit, this same chance, they saw obtainable.

Deficient, and partial, and deceptive, must have been in many a case the stock of evidence.

Compulsory and thence adequate means of procuring evidence—such evidence as in each individual suit, the case happened to furnish—none.

Means of securing genuineness on the part of the real and written evidence, none: means of securing against mendacity, negligence, and temerity, such personal evidence as was found obtainable—of securing, to wit, by appropriate and adequate remedies, satisfactional and punitional—none.

Judicatory many-seated: consumed consequently in super-useful discussions, on each individual occasion, a quantity of time more or less considerable: at the same time, their attention withdrawn from the subject by a more or less considerable proportion of the judges.

On the part of all these judges, one excepted, waste of time more or less considerable. Had the single-seated system been established, so many meritorious men, by each of whom, supposing him invested with the imperative function, in addition to the rest, such service as he was capable of, might have been rendered in a separate judicatory: and so, a correspondent quantity of delay: vexation and expense, saved to the parties: expense? yes: for time consumed in journeys to and fro and demurrage, is expense.

True it is, that in Denmark at any rate, whatsoever good was in this way done to suitors, was done without any expense to the public, in the article of remuneration for the judge.

But even as to this saving, if thought proper to be made, no reason appears for supposing that under the here proposed system it might not be made.

Of the probability of such economy, that very example affords very strongly presumptive evidence. Serving in that way, only as one in a crowd—his influence no more than fractionary, and unfortified with any imperative and coercive power,—would not the same man be equally ready to render that same service, when standing alone, and endowed by that supremely-inviting attribute?

But, it will be said, of all these men, there seems no reason for supposing that there was a single one, who to this work of generous supererogation ever gave the whole of his time: one would attend on one day; another, on another, just as each found most convenient.

It may be so: and for that reason it is, that on the present plan, remuneration is provided: although by the admission of competition, in the case of this service, as in the case of service in all other shapes, this remuneration will be cut down to the smallest portion which each person will be content to take.

Section X.

Judges’ Self-Suppletive Function.

1. Inaptitude of the Judge Principal, by means of infirmity, whether of body or mind.

2. Remoteness of the Judge Principal, from the judgment-seat, by whatsoever cause produced.

Art. 12. Of every such instrument, exemplars, as per Ch. viii. Prime Minister, Section 10, Registration System, will be made, and disposed of, as follows:—

1. Kept in the office of the Immediate Judiciary Registrar, one.

2. Transmitted to the office of the Apellate Judiciary Registrar of the Appellate Judicatory to which the Judge Immediate in question is subordinate, one.

3. Transmitted to the Justice Minister’s office, one.

4. Kept by the Locator, one.

Art. 18. 1. By the here proposed deputation system, is afforded the only possible mode of providing sufficiency, without superfluity, in the number of the judicatories: of steering always clear, between insufficiency and excess. Emblem, the boots which fitted themselves to every leg.

2. Thus are conjoined the maximums of amplitude and frugality.

3. Still, to exclude abuse, requires the Legislature’s, and the public’s, unremitted vigilance.

4. Number deficient; proportioned to deficiency is delay: and delay, in so far as being needless, it is wilful, is denial of justice. Deficiency and superfluity may exist together: deficiency in one spot, superfluity in another; and, if the field of jurisdiction be parcelled out in the way of logical division, both may have place on the same spot; some Judicatories overloaded; others idle: and, proportioned to superfluity in the number of the Judicatories, is superfluity in the expense.

5. As to what regards expense, under this system of frugality, deficiency, being apparently at its maximum, apprehensions on this score will be apt to present themselves: no pay given, no workmen (it may be thought) will be to be had. But, of these same apprehensions, further consideration and experience join in demonstrating the ungroundedness.

6. By being left unpaid, service in this shape is not left unrewarded.

To this judicial situation, rewards attached by the nature of the case are—1. The distinction—2. The power—3. Reputation, rising with good desert.

7. 1. Distinction—2. Power. For the value set upon reward in these shapes, note several examples.

I. English Small-Debt Courts, called Courts of Conscience. Field of jurisdiction narrow, as low as 40s.*Power, not an integer, but a fraction, and that so small a one: numerator, 1: denominator, a score or more: while in the situation of Judge Depute, the logical field of jurisdiction is boundless; the power, integral.

II. Danish Conciliation Courts. Logical field, wide compared with the above English: narrow, compared with the one here proposed: power, fractionized.

III. English Justices of the Peace Courts. Examples these, too conspicuous to be left unnoticed: though, by the comparatively small fees, and the casual emoluments attached to functions other than their judicial ones, the case is rendered not so simple as either of the two above-mentioned ones.

8. In the present case, to reward, in the above-mentioned shapes in possession, is added, in expectancy, the independent and superior power, with pay. By this, may be procured more strictness of attendance, than could be by any other method: for, to all who have not submitted to this strictness, all access to the pecuniary reward, with the independent power, is barred.

9. Nor yet are the evils of monopoly thus let in: for deficiency in the number of these functionaries cannot have place, without its being the interest of those who have the power that it should be filled up.

10. By every hour of his attendance, the depute’s capacity of promotion will be brought nearer: thus will every act of good desert in this shape, bring with it its own reward.

11. Moreover, relatively considered, as between each one and his colleagues, each one who bestows the hour will gain an advantage over all who do not: and the logical field being at its maximum, small must be the local field that will not furnish a demand for deputes permanent, more than one, or even two.

12. A Judge Depute permanent, will thus be in the condition of an apprentice, to whom uniform good behaviour affords a proportionable prospect of being taken into partnership.

13. All having this to gain, none have any positive loss to suffer. Hence will naturally be formed two classes:—

1. Closely attendant, those who look to office with pay and the superior power: say, stipendiaries in expectancy.

2. Loosely attendant, those content with the inferior power without pay, the occupation being agreeable to them, so long as the burthen of attendance is not too heavy: say, gratuitously serving, or honorary deputes.

14. A check, which, of itself, applies itself to abuse of the patronage by the Judge Principal, is—that the value of the expectant situations will be inversely as the number of the individuals by whom they are occupied: thence, whatsoever be his desire, power of rendering the number excessive will not accompany it. Thus stands the matter in the case of the Stipendiaries in expectancy.

15. Not equally so, in the case of the Honoraries. When pure from burthen, the slightest token of honourable distinction is, to most men, acceptable. Thus, but for some remedy, the establishment would be infested with sinecures. The sinecurists, though they cost no money, might in various other ways, be mischievous. A depute might even be appointed for the purpose of showing undue favour to this or that particular individual.

16. For remedy, let every depute permanent be bound to a certain minimum of attendance in the year: those who failed to bestow it, would silently drop out of the list, without the harsh operation of dislocation, or resignation in form.

17. The two classes, not having any distinctive mark, would have no determinate excitement to enmity: yet, of emulation, not only as between individual and individual, but as between class and class, the service would have the benefit.

18. Lest, by indolence, or ill humour, attendance, when requisite, should be withholden, and justice thus delayed, power of mulcting, for non-attendance after summons, might be given to the Judge Principal.

19. By the suppletive or deputation system, aid will be afforded towards the minimization of Principal’s pay. If the mere distinction and power of a depute suffices to produce a certain quantity of attendance, much greater will be the quantity producible by the addition of pay and superior power: and, so long as the burthen of attendance is not intolerable, the pay may be made less and less; and, thence, greater and greater relish for the occupation, and in so far appropriate active aptitude, may be secured.

20. So, if, by the bare expectancy of a given quantity of pay, a certain quantity of attendance is produced,—by immediate possession, either increase of attendance, or acceptance of diminished pay, may be produced.

21. Objection. True: number of aspirants may be abundant; and yet, considering what in this line of service aptitude is, apt aspirants may be altogether wanting, if pay, in possession or expectancy, be not in view.

22. Answer—Quantum requisite, not so rare as might be imagined: For,

In comparison of the actual customary demand under the English technical system, the requisite quantum of peculiar knowledge will, by all-comprehensive codification, be reduced to next to nothing.

23. When adequate appropriate knowledge has thus been rendered common, adequate appropriate judgment will not be so rare as to require extra pay.

Art. 2. Of the purposes, for which the need of the exercise of this function may have place, the following are examples:—

1. Discovery or pursuit of a latent or fugitive malefactor, or other defendant or proposed defendant.

2. Prehension of one from whom resistance has been experienced, or is, on adequate grounds, apprehended.

3. Giving termination to a course of conjunct maleficence, carrying on to the injury of person or property, by malefactors, rendered by armature or numbers, not otherwise subduable.

Expositive. Enactive.

Art. 3. A person whose aid is thus called in, is thereby, to the purpose and to the extent of the occasion, constituted as per Section 3, a ministerial officer of justice.

Instructional.

Art. 4. Exercise, or non-exercise of this function,—number of the persons on whom the power attached to it shall be employed,—manner in which it shall be employed,—as to these several points, as on all occasions in general, so in this in particular, minimize evil, will be the directing rule.

Instructional.

Art. 5. Accordingly, as to choice of persons, those will be to be preferred, whose services may be thus employed, with least detriment, as well to their individual concerns, and those of persons specially connected with them, as to the public service.

Instructional.

Art. 6. Exceptions excepted, every person is bound on requisition, to give aid to any functionary, for the purpose of giving execution and effect to any part of the law.

Exceptions are—

1. Where in making the requisitions, the functionary in question acts in disobedience to the order, or in opposition to the authority, of a superordinate of his.

2. Where the act which by him is represented as one, which if exercised, would be of the number of those which would operate in giving execution and effect to the law, is not in truth of that number: being on the contrary an act of disobedience to the law.

3. Where the individual so called upon, is restrained by the consideration of his or her bodily weakness.

Art. 13. These ascertained, the only courses,—which, on this occasion, the nature of the case admits of, for the minimization of evil,—will be reducible to these three:

1. Minimizing, on the several occasions, the quantity of expense actually bestowed.

2. As to such part as cannot but be bestowed, placing it upon those shoulders on which, by a given quantity of forced expense, the least quantity of affliction is produced.

Art. 19. ii.Juridical false assertion. Juridical vexation, is a species of transgression not commissible to any considerable extent by any person other than a party to the suit. Juridical false assertion, is a transgression into which a party, in his character of witness, and an extraneous witness, are equally liable to fall: incidentally also, any other of the different sorts of actors on the judicial theatre.

Modifications are—1. Mendacious assertion; 2. Insincere assertion; 3. Temerarious, or say, rash assertion. Between mendacious and insincere assertions, (both being accompanied with evil consciousness, to wit, on the part of the assertor consciousness of the falsity of his own assertion)—between these two modes of falsehood, the difference is—that in the case of insincerity, the subject matter of the assertion is a fact belonging to that class, of which his own mind is the field; in the case of mendacity, any other sort of fact whatsoever. As to mendacious assertion, under the as yet established systems, seldom is it made punishable, unless where the name of perjury has been given to it. This is where, in the instance of the assertor, it has been accompanied by the ceremony called the making oath, or taking an oath. But in this case, to the making a beneficial application of the matter of punishment, neither this nor any other ceremony, it is evident is necessary. Confining the application of the punishment for mendacity, to the case where this ceremony has been performed, is licensing, and by means of the profit which the evil-doer is enabled to reap from it, rewarding, encouraging, and suborning mendacity, in all cases in which, while consequences beneficial to the false assertor are given to the assertor, the performance of the ceremony is not exacted.

Instructional. Ratiocinative.

1. Injurer’s funds insufficient for compensation to the injured.

2. Pursuit or defence just, and need of evidence real, but the evidence remote, and in the opinion of the public functionaries,—guardians of the public purse,—the evil of misdecision, (its degree of probability being taken into account,) likely to be outweighed by the evil of the expense necessary to obviate it, supposing the expense charged on the public.

Enactive.

Art. 11. 2. If not, it will be taken by the Judge Appellate Depute, if there be but one, or if there be more than one, by the senior in service.

Enactive.

Art. 12. 3. If there be no Judge Depute capable of serving, it will, on petition of any party, be transferred to another Appellate Judicatory, as per Art. 6.

Instructional.

Art. 13. If, to the action of any cause of partiality, the situation of a Judge Depute permanent, to whom a suit is about to be consigned, is recognised by him as standing exposed,—he will do well spontaneously to declare it, and on that account decline cognizance.

Enactive.

Art. 14. If, for the purpose of ascertaining the existence or non-existence of such exposure, questions, as per Art. 4, be put to him, the principal, or some other Depute, will take his place; and, unless, in consequence of the examination, the cognizance be remitted to him, hear and determine the suit in his stead.

Instructional.

Art. 15. To no considerable extent have these measures of prevention been applied in the established law of any State: their efficacy, if applied, accounts for this. The assumption always has been, that at a certain height in the scale of authority, the functionary is temptation and corruption proof.

Exemplificational.

Art. 16. In France, not only in the modern post-revolutionary, but in the ancient ante-revolutionary Codes, a Judge whose situation is not in the highest grade, is declared liable to be pris à partie, as the phrase is—presented on the ground of his having conducted himself as a party in the suit. But on the part of a Judge in the highest grade, all such injustice is tacitly assumed to be impossible. The greater the facility of transgression, the less the probability: such is the logic of this assumption.

Instructional. Exemplificational.

Art. 17. Under the English system, on the part of certain inferior grades, the capacity of transgressing is admitted, and thence exposure to eventual punishment is in form established. But the supreme grades, in which no such capacity is admitted, but impeccability assumed, are abundant.

Examples—

1. House of Lords Judicatory: members not punishable, but by a majority of their own body: the consequence is, the majority are unpunishable.

2. So in the House of Commons.

3. The Judges of the Westminster Hall Judicatories, next below the House of Lords.

Of these, though declared punishable, none can be punished but by the Commons, with the concurrence of the King and the Lords. Thus, then, though in form they are declared to be peccable, they are in effect still more assuredly unpunishable.

As to any question relating to exposure to seductive and corruptive influence on the part of any public functionary, nothing could be more shockingly indecorous: the blood would boil at the bare mention of it. Justice has its use and value in some cases, and at the charge of the lower orders, it should be executed with inflexible strictness. But when opposed to decorum and dignity, it shrinks into insignificance.

4. Applied to the inferior situation of Justice of the Peace, considered as such, the objection of indecorum and indignity applies not with such force. It is not, however, but in a case peculiarly flagrant, nor then, but with extreme reluctance, that in case of a complaint of any injustice exercised by them, the sort of redress, such as it is, is administered by the Court of King’s Bench. Nor can any such complaint be made, but at an expense which not one, out of some hundreds exposed to the injustice, are able to defray.

Section XVII.

Migration.

Instructional. Ratiocinative.

Art. 1. The judicial migration system has for its object or end in view, the obviating the danger of misconduct, in respect of any of the ends of justice on the part of a judicial functionary, in consequence of connexions formed by him in the way of self-regarding interest; or affections contracted in the way of sympathy or antipathy from length of inter-communication in the territory in which he is judge.

Instructional. Ratiocinative.

Art. 2. It applies in a more particular manner to the situation of Judge, Appellate as well as Immediate. But it includes moreover, the several situations of Government Advocate, and Eleemosynary Advocate, in both grades, principally in consideration of the influence which, by their conduct, may be exercised on that of the Judge.

Enactive.

Art. 3. Under this system, in no Judicatory will any Judge remain, or say be commorant more than three solar years, with the addition of a fraction of another. The Immediate Judge will migrate from sub-district to sub-district: the Appellate from district to district.

Expositive.

Art. 4. Such migration will be either stated or incidental. The stated migration is that which takes place on a certain day of every year. This day is styled the stated periodical or annual judicial-migration-day; an incidental migration, is that which, being produced by some intervening cause, has place on any other day of the year: the period of time of which such day is the first day, and the last day of that same solar year, the last day constitutes the fragment which, in such case, will be added to the three solar years to constitute the commoration time of the Judge in that judicatory.

Enactive. Expositive.

Art. 5. Justice Minister’s Migration-directive function. In the exercise of this function, the Justice Minister gives directions to the course taken by the Migration System in its application to all the several functionaries comprised in it at all times: by such direction, transference is made of the several functionaries from one Judicatory to another, and their migration thus effected.

Expositive.

Art. 6. The stated migration day, which, as applying to all the several functionaries, may be termed also the general migration day, is the first day of every solar year.

Enactive.

Art. 7. Of incidental transference and migration, causes (on specific grounds in each case assigned) may be the following:—

1. Representation from the Prime Minister.

2. Representation from any sub-legislature.

3. Petition by any Judgeable of the Judge in question.

4. Petition from any other Magisterial functionary belonging to the same Judicatory.

Art. 18. In every such annual judicial service Calendar, appropriate matter will be entered under the heads following:—

1. Name of the territory of the judicatory: of the sub-district in the case of an Immediate Judicatory: of the district, in the case of an Appellate Judicatory.

2. Names of the several Judges, Government Advocates and Eleemosynary Advocates, serving for the ensuing solar year.

3. Mention made, whether by commoration or migration.

4. Year, month, and day of the commencement of their respective commoration terms, in that judicatory.

5. Days on which migrations are expected to commence.

6. In case of migration,—judicial territories and judicatories to which the migration is to be made.

7. Days on which they are expected to have arrived at those several judicatories.

Enactive. Instructional.

Art. 19. Mode of determining the migration after the commoration has expired. In such number of instances as he thinks fit, the Justice Minister will, by his own choice, determine into what other territories each functionary, whose commoration term in the situation occupied by him, has expired, shall be transferred and migrate: in such other instances, if any, as he thinks fit, he may cause such determination to be made by lot: for which purpose, he will cause an appropriate lottery to be drawn, on some such day as may afford time enough for the transmission of the annual service Calendar, as per Art. 17.

Enactive. Instructional.

Art. 20. At all times, antecedent to such day of transmission, as per Art. 17, an application, containing reasons in writing or print, for or against the transference or non-transference of any such functionary, to the judicatory, and the situation, therein mentioned, may be transmitted by any person or persons to, and received by, the Justice Minister. Such application will be either a transference-proposing, a transference-supporting, or a transference-opposing application. But, of every such application, adequate information must be contained in the aforesaid judicial Calendar, as in the case of a missive having for its object the influencing the decision of a judge, as per Section 15, Secret intercourse obviated, and Section 16, Partiality obviated.

Instructional.

Art. 21. Of the matter of the information contained in the Judicial Service Calendar, as above described, as much will be exhibited at a view (that is to say, on one side of the same sheet of paper) as can be so exhibited consistently with convenience in respect of legibility: the whole, if within that space, the whole can conveniently be contained. If not, the separation may be made,—either by separating from the matter which belongs to the Immediate Judicatories, the matter which belongs to the Appellate Judicatories, or by separating that which belongs to the grade of judicatories in one portion of the whole territory of the State, from that which belongs thereto, in this or that other portion of the whole territory of the State.

Enactive. Expositive.

Art. 22. Incidental Location and Migration Report. In this document is contained a statement of the instances in which, during a certain portion of time, in pursuance of mandates of transference, at times other than the General Migration day, migrations have taken place.

Enactive.

Art. 23. On the first day of each solar year, for the information of the Legislature and the public at large, the Justice Minister will cause to be exposed for sale, in print, exemplars of an Incidental Location and Migration Report, stating the incidental migrations which have taken place in the course of the last year.

Enactive.

Art. 24. In this document will be contained matter under the heads following:—

1. In alphabetical order, names of the subdistricts and districts into which, in the course of that same year, migrations have taken place.

2. Under the head of each such territory, names of the several judiciary magisterial functionaries, whether Judge, Government Advocate, or Eleemosynary Advocate so transferred.

3. Day on which, in virtue of the transference, the functionary’s commoration term took its commencement.

4. Cause of the change of possession: whether it was by location for the first time that the new possessor came in, or by migration: if by migration, the territory from which the transference, and consequent migration, took place.

5. In case of transference, the cause of it: if a vacancy occasioned by death of the predecessor, mentioning the death: if by dislocation of the last occupant, mentioning him and the cause of the dislocation: if by transference and migration of the last occupant, mentioning the cause, or ground of the transference, as per Art. 7.

6. So likewise, the person or persons by whose application it was produced.

7. Also, the day on which such application was received.

8. Also, the grounds on which it was made.

9. The day on which the decree of the Justice Minister, on the subject of those grounds, was declared.

2. Menacing language, if expressed in terms of wrath, or giving intimation of an intention, actual or eventual, to subject the party to any infliction, other than that which the tenor of the law, and appropriate use made of the latitude allowed by the law to the discretion of the judge, admit of.

3. With perplexing and vexatious frequency, interrupting a party in the course of his pursuit or defence.

4. Forcibly putting a final period to the speech of a party, or his substitute or assistant, in the course of his pursuit or defence. Such speech not having in it, at the time of the interruption, matter irrelevant or in any other way improper.

5. Letting pass unrepressed, treatment injurious to a party or witness, in the above or any other ways, by a party, or a substitute or assistant (gratuitous or professional) to a party on either side of the suit, or by any functionary, magisterial or ministerial, attached to the Judicatory.

Ratiocinative.

Art. 3. For security to all persons, against incidental vexation by judges and other judicial functionaries,—in the exercise of their respective functions, or otherwise by means of the power attached to their respective situations,—and in particular while any proceeding in a Justice Chamber is carrying on,—for this cause it is, that the remedy afforded by the Incidental Complaint-Book is provided.

Enactive.

Art. 4. To the Registrar it belongs to provide, and keep at all times accessible to all persons, a separate and appropriate Register Book, thus denominated.

Enactive.

Art. 5. If, by a Judge in the exercise of his functions, or with reference, express or virtual, made thereto, any discourse be uttered, or any act done, whereby any individual regards himself or any other individual, or the whole community, or any class thereof, aggrieved or about to be aggrieved, it is the duty of the Registrar, at the instance of such individual, forthwith to make or cause make entry of the minute thereof, in the Incidental Complaint-Book: having special care, in so far as discourse is the subject of complaint, to set down the very words: accompanying it, in every case, with a statement made of all such states of things, discourses and other acts and events, information of which shall be necessary to a clear, correct, and complete conception of the true nature of the case.

Enactive.

Art. 6. Of every such Incidental Complaint-minute, if it be in an Immediate Judicatory, exemplars, written in the manifold-mode, as per Ch. viii. Prime Minister, Section 10, Registration System, will, on the responsibility of the Judge and the Registrar, be disposed of as follows:—

1. Transmitted to the Appellate Judge, one.
2. Transmitted to the Justice Minister, one.
3. Delivered to the Complainant, one.
4. Kept in the Registry, one.

Enactive.

Art. 7. If it be in an Appellate Judicatory—

1. Transmitted to the Justice Minister, one.
2. Delivered to the Complainant, one.
3. Kept in the Registry, one.

On the part of a Judge, suppose inaptitude in any shape or degree, reference had to the several branches of appropriate aptitude,—the cause of it may have had place either before, or not till after, his location: to the exclusion of it, in the first case, apply the provision in Section 28, Locable who, (followed by those in Section 30, Dislocable how:) to the other case, those in Section 14, Publicity, recordation, and publication, and those in the present Section relating to the Incidental Complaint-Book: those in Section 14, applying to the whole series of operations intended to be performed by him in the ordinary course of his business; those in the present Section to casual and unintended occurrences.

Instructional.

Art. 14. Of these occurrences, the most important are those petty mental and verbal injuries, which, in that situation, love of power is so apt to indulge itself in; inflicting on those whom it sees subject to it, injuries which, though occasioned by the suit, have no particular connexion with the particular interests at stake upon the event of it. In the established system, transgressions of this sort have very generally been left unnoticed and unrepressed. Between the possessors of supreme power, and their principal instruments, in this Department, as in every other, there exists a natural community of sinister interest: according to his calculation, the superior cannot do too much to augment, he cannot do too little to diminish, the fear inspired by the instruments of his will: and, so long as his own authority remains unimpaired, his own pride is gratified by every gratification received by the pride of his subordinates.

Instructional.

Art. 15. From the same cause, the like wrongs, liable to be done by the several other actors on the judicial theatre to one another, have been left without special notice: so even those to the Judge himself: to determine the power of the functionary on these occasions, would have been to limit it: and a natural assurance was, that in the obvious necessity of the case, he would never fail to behold a sufficient warrant for whatever exercise of his power should at any time prove necessary for guarding his operations against disturbance.

On the part of a public functionary or other trustee, during his continuance in such his trust, corruption may be produced, either by intercourse between the corruptee and a corruptor, or by the mere force of some corruptee’s situation, without any such intercourse; the corruptee’s situation being such, as without assistance from any external application, naturally inclines him, in this or that way, to violate his trust. To the case first mentioned, applies Section 15, Secret intercourse obviated: to the other, Section 16, Partiality obviated.

Instructional. Ratiocinative.

Art. 16. By the corruption which requires intercourse, the utmost effect produced and consequently the utmost mischief, is as nothing, compared with that which it produces by mere situation, without the need of intercourse. In an absolute Monarchy, all other functionaries are, by force of the two correlative situations—by the dependence of their situations on that of the Monarch’s—kept in a constant state of corruption—ready instruments of wrong in every shape in his hands. In a limited Monarchy, those trustees, by whose location the limits, such as they are, are set to the power of the Monarch, will always be for the most part in the same state: the expectation of the good, which, in such variety of shape, they are capable of receiving at his hands, sufficing for this purpose, without the apprehension of evil in any shape, other than that in which it is produced by the subtraction of the good. Thus it is, that in every Monarchy, the office of Corruptor-General is attached to the situation of Monarch: that of Sub-corruptor, to every known instrument of his, and every known favourite; and, forasmuch as, to the reaping the fruit of the corruption, no act on the part of a corruptor is in any such situation necessary, every such corruptor may, if he but act with common discretion, enjoy the full benefit of the corruption, without suffering any of the odium which, were the corruption observed, would be attached to it. In company with this benefit, he may, at the same time, and without difficulty, give himself at the hands of the unreflecting and deluded multitude, the praise of purity.

Instructional.

Art. 17. Bribery is corruption by intercourse; and the monarch who, while asleep on the throne, by the mere act of sitting on it, keeps in a state of continual corruption and mischievous obsequiousness, both the self-styled trustees of the people, by whom his power is supposed to be limited, and their electors, who in their small number, occupy the place of the whole people,—joins, with exemplary readiness, in heaping punishment and infamy upon the odious and needless, and comparatively innoxious crime of bribery.

Section XIX.

Judges’ Contested-Interpretation-Reporting Function.

Expositive. Ratiocinative.

Enactive.

Art. 10. Of a Contested Interpretation Report, exemplars will be thus disposed of:—

1. Transmitted to the Appellate Judicatory, one.

2. Transmitted to the Justice Minister, one.

3. Transmitted to the Legislation Minister, one.

4. Kept in the Registry of the Immediate Judicatory, one.

5. Delivered to each Appellant or set of Appellants, joining in the same Interpretation paper, one.

6. Delivered to the party or parties Respondent, one.

7. Kept by the Judge, in his individual capacity, one.

Enactive.

Art. 11. When, upon cognizance taken by him of the Appeal, the conflicting interpretations come to be decided upon by the Appellate Judge, he will, by his signature, adopt and give his sanction to such of them, if any, as in his opinion is the proper one; or, as per Art. 2, add an Interpretation paper of his own; or, as per Art. 4, an Amendment-negativing paper. The instrument in and by which these same matters are communicated, will be termed The Judge Appellate’s Contested Interpretation Report.

Enactive.

Art. 12. Every such Judge Appellate’s Contested Interpretation Report, will be drawn up by the Registrar of the Appellate Judicatory, under the direction of the Judge, and exemplars of it be disposed of as follows:—

1. Transmitted to the Justice Minister, one.

2. Transmitted to the Legislation Minister, one.

3. Retro-transmitted to the Immediate Judicatory, one.

4. Kept in the Registry of the Appellate Judicatory, one.

5. Transmitted to the party or parties Appellant, one or more, as per Art. 10.

6. Transmitted to the party or parties Respondent, one.

Art. 18. In each of two suits having place between different parties on different grounds, and having no communication with one another,—it may happen that of the same word or passage, interpretation has been given, and that, as in the case of the same suit, as per Art. 17, the two proposed Amendments have been different from each other and conflicting.

Of these cases, at the end of his said Annual Interpretation Diversity Report, the Justice Minister will subjoin a separate Table wherein the several words or passages which, in the course of the year, have been respectively, as above, the subject of conflicting amendments, on the occasion of different suits, will be exhibited, with the conflicting amendments respectively applying to them: mention will therein be made of the several functionaries, himself included, by whom they are respectively proposed; in each instance, any such remarks as he may see reason to make, being subjoined.

Enactive.

Art. 19. Of every amendment thus adopted, the effect will by the Judge be confined to such suits, as shall thereafter be instituted: retroactive effect, none.

Section XX.

Judges’ Eventually-emendative Function.

Expositive.

Art. 1. In Ch. xi. Ministers severally, Section 2, Legislation Minister, Art. 20 to 24, mention has been made of the conditions on which, and the mode in which, by the tacit consent of the Legislature, an amendment, proposed by a Judge Immediate, will, as if proposed by a Member of the Legislature, and adopted, receive the force of law, and be aggregated to the body of the laws. So also, in Section 19, Contested-interpretation-reporting function has been delineated, the mode in which adoption may be given to any interpretation proposed by a Judge for any portion of the text of the law; that is to say, for an amendment in respect of form, to be applied to it: the intended matter, or say import of it, remaining thereby unchanged.

Mutatis mutandis, as below, in like manner is provision hereby made for amendments originating in the judicial authority, in respect of matter.

Enactive.

Art. 2. Here follows the mode of bringing forward the proposed amendment. When, in any part of the law, the need of amendment presents itself, on the occasion of a suit brought before him, to any such judge, as having place,—he draws up, according to one or other of the forms mentioned in Ch. xi. Section 2: to wit, the directive, or the re-editive—the amendment, which to him seems most suitable. In open Judicatory, the Government Advocate, and the Eleemosynary Advocate being present, he thereupon consults them, by reading, or causing to be read to them, the tenor of such his amendment, with his reasons annexed: and calls upon them respectively to mark on the paper one or other of the several responses signified by the words Approved, Acquiesced in, or Disapproved; giving to each of them, if desired, any such consideration time, as, upon their application respectively, he shall have deemed requisite.

Enactive.

Art. 3. Transmission of the proposed amendment to the superordinate authorities. At the end of such consideration-time, the judge Immediate transmits to his several superordinates, to wit, the Judge Appellate of his district, and the Justice Minister, exemplars of a Report, under his signature, containing the proposed amendment: on each such exemplar is marked under his signature the response of the Government Advocate as above, or else a declaration of the invitation given, and time allowed to him, or in his absence to the senior in office of his Deputes permanent, and the lapse of the time without response received; and so in the case of the Eleemosynary Advocate.

Enactive.

Art. 4. Of such proposed amendment, with the responses,—or declaration of non-response as above,—constituting an Emendation-suggesting Report, exemplars will thereupon be thus disposed of:—

1. Transmitted to the Appellate Judicatory, one, with the day when sent marked on it.

2. Transmitted to the Justice Minister, with the like mark, one.

Art. 23. Objection. Supposing this function conferred, it will be in the power of a Justice Minister, without need of assistance, other than that of one Judge Immediate and one Judge Appellate, to go out of his proper sphere, and form a party in opposition to the Legislature, by bringing on the carpet this or that arrangement,—on this or that part of the field of law, on which the public mind is already taking, or may be brought to take an interest,—dangerous to public tranquillity: evil consequence, the community kept in a state of perpetual ferment.

Answer. The evil will work its own cure. To any annoyance from this source, it would remain in the power of the Legislature with every desirable facility, to put an end at any time. Measures of severity necessary, none. A simple determination not to take the matter in question, for a subject of discussion, would suffice: once expressed, it would without difficulty be renewed as often as the obnoxious proposition made its appearance. Sufficient for the production of this effect, would be the motion of one member, seconded by one other, and acceded to by a majority of the remainder. No impression could the supposed turbulent functionary—the Justice Minister—make on the legislative body, unless there were in that body, a party actuated by wishes to the same effect: and if there were, of no evil in this shape would the function thus conferred on the functionary in question, be productive: the case being that it would equally have place without him. His means of influence are not so great as those which belong to every member of the Legislature. To every member belong the rights of audition, argumentation, and motion, in the Assembly: to the Justice Minister, not one of those rights: and had he even every one of them, he would be little higher than upon a par with every other member of the Assembly.

Instructional. Ratiocinative. Expositive.

Art. 24. Examples of the topics which present themselves as being in a more particular manner liable to give birth to inconvenience in this shape, are as follows:—

1. Topics belonging to political economy. Instance, quantity and quality of encouragement and discouragement, absolute and comparative, proper to be applied to the several distinguishable branches of productive industry:—to be applied,—whether directly for that same purpose, or indirectly and unavoidably, on the occasion of taxation for the purpose of revenue.

2. Topics belonging to the relation of the state in question, to foreign states.

3. In the case of a federative Government, topics belonging to the relations between this or that state, and this or that other, or between this or that state, and the whole nation.

Instructional. Expositive.

Art. 25. Examples of topics, in relation to which, the allowance of such extraneous applications, affords the best promise of being conducive to the melioration of the body of the law, are as follows:—

1. Topics relative to the laws having for their object the affording security to the person, property, reputation, or condition in life of individuals.

2. Topics relative to the interpretation, authorization, and execution of contracts, as between individual and individual.

3. Topics relative to the interpretation, authorization, and effectuation of conveyances.

Enactive. Ratiocinative.

Art. 26. In case of emendation by appointment of punishment where as yet there is none, to wit, on the discovery of a maleficent quality as being possessed by an act of this or that description, not yet by prohibition aggregated to any class of offences,—apply not any retroactive punishment: do not apply pain, in the character of punishment, to any one, by whom such act of newly discovered maleficence, has been performed.

1. The only use of punishment is prevention of similar maleficent acts, (maleficence having place in this case by the supposition,) which otherwise would have been committed. But this good effect may as surely be accomplished by prohibition, without punishment, i. e. by the announcement of punishment as about to be inflicted, in the event of any repetition of the maleficent act, as by prohibition with punishment.

2. On the other hand; of the infliction of punishment without warning in any one such case, an effect liable to be produced is, the sense of insecurity, resulting from the breach of the general rule:—no punishment for any sort of act, to which, in the existing state of the law, punishment may not be seen to be already attached, the supposed maleficent act being already included under some denomination of offence.

Enactive.

Art. 27. But the inhibition as to the infliction of retroactive punishment, does not extend to the abstraction of the profit from the maleficent act.

Ratiocinative.

Art. 28. Correspondent to, and concomitant with, the profit to the maleficent agent from the maleficent act, will be loss, or say pain of privation, or suffering in some other shape, to some one else. The consequence is, that by forbearing to produce suffering on the part of the maleficent agent, suffering, and probably to a greater amount, would be produced on the part of some person, to whom no maleficence is so much as imputed: and thus by forbearance to produce on the part of the maleficent agent, the suffering attendant on the obligation to disgorge the profit, no net saving of suffering would be produced.

In so far as from the maleficent act in question, damage to an individual is produced, the provision thus made, for the extraction of the profit of the maleficent act, for the purpose of transferring such profit to the party wronged, is, in other words, a provision ordaining compensation to be pro tanto made: accordingly, in this case, for the reason just assigned, making of compensation ought to be ordained.

In a word, though in such a case application will not be to be made of the punitive remedy, yet application will be to be made of the satisfactive, and thence, in so far as the nature of the case admits, of the compensative remedy.

But moreover, in the case in which by the maleficent act in question, no loss or suffering in any shape had been produced on the part of the individual, (the maleficent act being of a purely public nature, as for instance, an act by which a defalcation from the mass of public property had been effected;) still, even in this case, extraction should be made of the profit of the offence. For, in the first place, to the public at large, from the addition made from this source, to the aggregate of the public stock, the same benefit is produced as is produced by a profit to the same amount from any other source. But whatsoever may be the danger produced by this abstraction of profit, scarcely can any correspondent alarm be said to be concomitant with it. Where is the alarm that would be produced by the persuasion, though it were universally shared—shared by every man,—that in the event of his succeeding in the reaping of a profit, from a maleficent act, at the expense of the public, though he will not be subjected to any ulterior suffering, he will not be left in possession of any such undue profit? In a word, that though he will not be a loser by the mischief, which he will have done, yet, neither will he have been a gainer.

As to the application of the preventive and suppressive remedies, in this case, see Section 21, Judges’ Sistitive, or say Execution-staying function.

Section XXI.

Judges’ Sistitive, or say Execution-staying Function.

Expositive.

Art. 1. By the Judges’ execution-staying, or say sistitive or suspensive function, understand the exercising, for special cause the function, by the exercise of which a stop, and eventually an end, is put to that execution and effect which he would otherwise hold himself bound to give to this or that provision of the Pannomion.

Expositive. Enactive.

Art. 2. Such special cause is, the observation made by him of something in the law, which, having appeared to him to be an imperfection, such as, in case of execution and effect thereto given, will be productive of injustice, and thence of contravention to the intentions of the legislature, has as such given exercise to his Eventually-emendative function, as per Section 20. In such case, it is not only allowable to him, but on his responsibility, rendered incumbent on him, to stay execution accordingly.

Enactive.

Art. 3. In this case, he will proceed thus. If, at the time when the supposed injustice has manifested itself to his eyes, the whole of the evidence which the individual case, as stated by the applicant, furnishes, has been elicited, he will issue, at the same time, three pair of decrees: each pair composed of an opinative, and the correspondent imperative decree, as per Section 9: one pair, for giving execution and effect to the law as it stands; a second, for giving execution and effect to the law as it will stand, if the amendment, which he thereupon proposes, is adopted; a third, for stopping the execution of both, until the will of the legislature shall have been made known. It is by the issuing of this last pair, that the Judges’ sistitive function will have been exercised: of the two first mentioned, the one or the other follows, according to the decision of the legislature, as made known by the reception given to the Emendation-suggesting Report.

Enactive.

Art. 4. Conditions necessary on each occasion to warrant the exercise of this function are the following:—

1. That, from execution, if given, to the law, damage and injustice, which, but for such stoppage would not be excluded, would, in some of the therein assigned shapes, or probably might, ensue.

2. That, from the exercise so given to this function, no damage so great seems equally likely to ensue, as from the non-exercise of it.

Instructional. Exemplificational.

Art. 12. 2. Case II. A contract: the contract, for example, between the Merchant and the Jew of Venice: fabulous, it will not be less explanatory than if real. Money lent: on failure of repayment by a certain day, power to creditor to cut from debtor’s body a pound of flesh from any part, at creditor’s choice. Regarding this contract as being of the number of those, by observance of which greater evil would be done than by the breach, the Judge proceeds, as above, transmitting proposed amendment, as per Section 20, and for suspension, issuing the three pair of decrees, as above, Art. 3. True it is, that of these suspension decrees, if confirmed by the Legislature, namely by tacit consent given to the proposed judiciary amendment, the effect will, as in Case I., be retroactive. But in this second case, the retroactivity is at the least not less irreproachable than in Case I.

Instructional.

Art. 13. By these means will, and by no other means can, the practice of strained construction in judicature, with its all-pervading and boundless evils, be eradicated. By that practice, in proportion as the prevalence of it is known, men’s confidence in the effect of the law, and in the disposition of the judiciary, cannot but be proportionably weakened. To lawyers this is no evil, but a good: for by it encouragement is afforded to the maintenance of litigation on the wrong side. But, to all but lawyers, it is an evil of the first magnitude, the sense of security being in proportion to the extent to which its existence is known or suspected, weakened by it. Neither is it in any tolerable degree, adequate as to any good purpose, by which it can be supplied with a reason or a pretence. At one time, the Judge will not employ this faculty: his responsibility, real or imaginary, deters him: while, of any evil which may ensue from the non-employment of it, the odium will fall, he sees, not upon him, but upon the Legislature: at another time, you have a Judge who would employ it in favour of a suitor to whom he were favourable, but will not employ it in favour of the suitor in question, to whom he is adverse.

Instructional. Expositive. Exemplificational.

“This,” (would this or that member say to this or that other,) “this is not serving us: this is setting up against us. This must be stopt: I will move rejection, if you will second me.”

Instructional.

Instructional. Ratiocinative.

Art. 8. Neither by the eventually-emendative function, nor by the sistitive function, nor by both together, can this same preinterpretation be said to be rendered useless. Need of preinterpretation may have place, where neither in matter nor in form, can imperfection be justly imputed to the work of the Legislature. At the time of enactment (suppose) the state of things in question, though lying within the reason of the law, neither was in existence, nor could have come under the contemplation of the law-makers.

Moreover, what is clear to one man, may be obscure or ambiguous to another: and many a man, to whose anxiety it would be an inestimable relief, to be assured what, on the point in question, the opinion of the Judge would be,—might feel himself altogether incompetent to sit in judgment on the work of the Legislature, and declare that it is or is not well-adapted to the purpose. No amendment will a judge take upon himself to propose to the Legislature, where he himself sees not any ground for doubt, nor hesitation as to the course be ought eventually to take. Yet, in a case of this sort, by a response, howsoever unfavourable to his hopes, the mind of an applicant may be set at rest, and, to parties on both sides, as above, the eventual vexation and expense of litigation saved.

Instructional.

Art. 9. So, where, for the point in question, no particular provision appears to have been made in any part of the law; in this case, the subject matter of preinterpretation will be—not this or that particular article of the law, but the whole body of the law taken together. The interpretative function, cannot plant certainty in any part of the field of law, without the previous toil of litigation: by the preinterpretative function, that same benefit may be obtained without being clogged with any of that hitherto inseparable burthen.

Section XXIII.

Application of Sections 19, 20, 21, and 22, to the several Codes of the Pannomion, and to unwritten Law.

Expositive.

Art. 1. In these four sections taken together, completion is given to the design commenced in Ch. v. Constitutive, Section 6, continued in Ch. vi. Legislature, Section 1, and further continued in Ch. xi. Ministers severally, Section 2.

Expositive.

Art. 2. Taken together, the cases provided for, by them, comprehend every shape in which imperfection can be imputed to any portion of law. Take the passage in question, whatever it be, if the party in question be dissatisfied with it, it is either because he does not clearly conceive the import, nor therefore the consequences of it,—or because, entertaining a conception, correct or more or less incorrect, of the import, he regards it with disapprobation; in the first case, either he finds himself unable to assign to it any import at all, in which case obscurity is the appellation of the imperfection he ascribes to it; or he finds his judgment and expectation hang in suspense between two or more imports in which case ambiguity is the appellation of it.

Instructional.

Art. 3. Beneficial effects endeavoured and expected to be produced by these arrangements, and in the character of reasons, operating in recommendation of them are the following:—

1. Preserving for ever from deterioration whatsoever symmetry comes to have been established as between the several Codes in the Pannomion, and their several parts.

2. Minimizing and indefinitely retarding, the need of consolidation laws: remedies which, how necessary soever, can never be applied, without more or less difficulty and inconvenience.

3. Preserving the Pannomion, in proportion as the parts of it are brought into existence, from being infested, and its usefulness impaired, by masses of that very sort of spurious and excrementitious matter, which it was originally employed to take the place of: matter, composed of masses of the so called common law, in the shape of Reports of judicial decisions, professed to be grounded on the law, together with dissertations, grounded partly on the genuine text, partly on this spurious matter, and succeeding one another without end.

It is for want of such an institution, that in this respect the condition of France, since the prodigious improvement received from Buonaparte’s Codes, has been continually growing worse and worse. Not more than a dozen years have those five Codes been in authority, and already the field is crowded, the conception of the people perplexed, and uncertainty continually rendered more uncertain by swarms of commentaries.

Instructional.

Art. 4. Other good effects, but presenting themselves in a shape less tangible and ponderable, are the following:—

1. In matter as well as form, the general texture of the Code improved: improved, to wit, by the necessity which all persons, who engage in the task of endeavouring to apply alteration or give initiation to law, will find themselves under, of applying their attention, with care and precision, to the very tenor of every portion of the existing law, on which the proposed new matter bears; thus rendering necessary, to the hope of acceptance a certain degree of skill on the part of the operator; and, in a proportion more or less considerable, repelling from the employment those who fail of being qualified for it.

2. By the publicity of the proceedings, the attention of all persons by whom the Judicatories are frequented, (and in and by Ch. xvii. Judicial Inspectors, it will be seen how numerous and influential they cannot fail to be,) will be so much the more frequently and closely applied to the business and forms of legislation. In this particular, the magnitude of the advantage gained is as the number of the Immediate Judicatories, to the number of the bodies occupied in the exercise of the powers of Legislation: that is to say, the Legislature and the several sub-Legislatures.

3. Of the members of the Legislature itself, the attention so much the more frequently called to the details of the process of legislation.

4. In regard to the whole body of the Pannomion, maximizing the facility of its melioration from all imaginable sources.

5. Disarming Judges of the arbitrary power of frustration and alteration under the name of interpretation: disarming them of the power, by divesting them altogether, and for ever, of the pretence. Hitherto, in all places and at all times, has this power been exercised: and, forasmuch as, in the effects of the exercise given to it, a mixture of good with the evil being frequently to be found; and the good the most prominent of the two,—never without unanswerable objections could it be either condemned or justified. By the here proposed means, now for the first time, the evil may be effectually excluded, and the good left pure. Under the existing system, scarce can imagination suggest the improper liberty which a Judge will not take with the declared will of a Legislature: under the here proposed system, none will any Judge ever dare to take: for the sources of excuse, elsewhere so abundant, will here be altogether wanting.

6. Securing identity to the import ascribed to the law, in all judicial districts and subdistricts,—instead of a diversity, with no limit to it, other than that of the number of subdistricts: securing thus a perpetual and all embracing uniformity of decision as between subdistrict and subdistrict.

Note that the functions, which, in the production of these six good effects have the principal share, are the Contested-interpretation-reporting and the eventually-emendative.

7. Enabling each and every individual, on every occasion, to learn in time what he may do, and what he cannot do, with safety: and what benefits he may expect from the law without being disappointed.

8. Liberating the people, from the yoke to which they have hitherto been subjected by the opinion trade: a trade carried on by law practitioners, selling at high prices, guesses, at what in the case in question the Judge whoever he may happen to be, will peradventure do. The simple course would be to ask the Judge himself, and this is what under the here proposed system, any individual is, on any occasion authorized to do; and this by a question, to which, with or without reference to the Legislature, the Judge is bound to give response.

The functions which in the production of these two good effects have the principal share, are—the eventually-emendative, as above, and the preinterpretative.

9. Excluding or at any rate minimizing, the evil producible by execution given to this or that particular ordinance, rendered by oversight adverse to the general design of the whole body of the law, taken in the aggregate: perhaps even to the design of that same ordinance itself.

Necessary to the production of this effect, was the addition of the preinterpretative, to those two other functions. To the infinitely extensive mass of future contingent evil, apply the eventually-emendative and preinterpretative functions: to the present and to the impending and paulo-post-future evil, the sistitive.

Instructional. Ratiocinative.

Art. 5. Under unwritten or common law itself, pure will be the benefit produced by exercise given to this same sistitive function: pure from all danger of becoming alloyed with injustice. For, common law being in the whole unreal, is in every part of it unknowable, and of every judgment pronounced on the ground of it, the effect is accordingly retroactive: not more indisputably, nor more perniciously retroactive, can be any such proposed sistitive rule.

Too deplorable in every country would the condition of the people be, if the benefit derivable from the system of improvement were condemned to wait for so distant an era as that of the complete extirpation of so grievously oppressive and afflictive an intumescence.

Instructional. Ratiocinative.

Art. 6. The reason is no less decided in favour of sistition, where, without any such warrant as that which is here supposed to be given by real law, stoppage of a decision that would have been given on the ground of a supposed article of common law, is made by the mere authority of a Judge. True it is that in this case uncertainty is produced: but by this uncertainty, no certainty is destroyed; for that which has no existence cannot be destroyed: and some good is at the same time done; whereas, by doing otherwise, nothing but evil would have been done.

Exemplificational.

Art. 7. In English practice, a known distinction has place between deciding according to the strict rules of law, and deciding according to the merits. By deciding according to the strict rules, instead of according to the merits, is meant—deciding according to some rule, devised by sinister interest, as a pretence for deciding in direct opposition to the justice of the case, on the ground of a mistake, made (perhaps for the purpose) by a copying clerk, or of something else which has not anything more to do with the nature of the case. By deciding according to the merits, is meant deciding according to what, by any reasonable person to whom the judicial practice is unknown, would be regarded as being according to justice.

Exemplificational.

Art. 8. A practice has of late sprung up of making decisions according to what is regarded as the merits, in opposition to what, by the Judge who so decides, is declared as being according to the strict rules of law. Of this practice, true it is—that the effect is better than that of deciding otherwise than according to the merits. But how much better the effect would be if the innovation were authorized by real law, and accompanied by the obligation of making communications to the Legislature, as in the here proposed mode,—is sufficiently evident. Proportionably so would be the merit of the Judge who, on pronouncing his discourse, should declaredly give to the here proposed sole instrument of certainty, the authority of his name.

Ratiocinative. Exemplificational.

Art. 9. A foreign admirer of English judicature, little thinks how effectually it is in the power of a copying clerk, or his master, to sell a pardon to the most atrocious criminal, or to give to a defendant property to any amount belonging to a plaintiff, by the instrumentality of these same strict rules of law.

Ratiocinative. Exemplificational.

Art. 10. On this occasion as on others, as often as any new arrangement for the promotion of the public benefit is proposed, comes the question—if such be its utility, how happens it that in all this while, it has not, under any established system, been ever carried into effect, or so much as proposed? To give a specific answer to any such question, must be left to the historian. All that in this place can be done towards it is, to say in general terms, that of this imperfection as of all others, the cause may be seen in the want of identity of interest between governed and governors.

In these four sections taken together, by a slight addition made as above to the labours of the Judge, will be seen to be given not only a vast assistance to the legislator and an easy path for the admission of an endless mass of improvement, but in return for this small labour no small additional dignity to the situation of the Judge himself.

In the here proposed Code, all imperfections in the rule of action are by all such means as the nature of the case affords endeavoured to be as fast as they anywhere present themselves to notice, forwarded to the notice of the legislature and the public, to the end that, as soon as possible they may be removed.

In the hitherto established systems, all such imperfections are anxiously kept out of sight, that such of them as in the eyes of rulers are favourable to their particular and sinister interests may be preserved.

Even in the Anglo-American United States, with the exception of the Constitutional branch of law, into which irresistible necessity forced improvement,—under the guidance of the lawyer tribe, the great majority still keep themselves on their knees before the emanations of the corrupt despotism, from which they have emancipated themselves; the imperfections of which are covered from observation by a chaos of common law, through which their optics have never as yet been able to penetrate.

Section XXIV.

Judges’ non-Contestational-Evidence-Elicitation Function.

Enactive.

Art. 1. To the Judge Immediate, for all purposes of judicial procedure, belongs of course the evidence-elicitation function: exercisable, as exercised antecedently to, and concomitantly with, litiscontestation.

Instructional.

Art. 7. For whatsoever purpose this same evidence-elicitation function be exercised—necessary to that same purpose, will be the registration of the matter elicited. As to the process, see Ch. xxi. Immediate and Appellate Judiciary Registrars; Section 5, Minutation how.

Section XXV.

Judges’, &c., Attendance.

3. Out-door duty; if, by the suddenness and urgency of the demand, his attendance is rendered impracticable, without preponderant inconvenience, in respect of the delay or the expense.

Enactive.

Art. 24. Eleemosynary Advocate’s attendance. Exceptions excepted, wheresoever and whensoever a Judge serves, so does an Eleemosynary Advocate.

Enactive.

Art. 25. Exceptions are—

Art. 52. Two standards of reference applicable alike to all political states and all climates, suggest the two following rules:—

Art. 5. Why are not the functionaries here in question, continued in office during good behaviour?

Reason. Answer.

Because continuance in office during good behaviour, is continuance in office during ill behaviour.

By continuance in office during good behaviour, is meant, continuance in office during life, or so long as the functionary pleases, subject only to dislocation by judgment of a Judicatory, grounded on such evidence as is required by a Judicatory. But in any office whatsoever the functionary may be rendered completely inapt, in respect of every one of the several branches of appropriate aptitude: and may, therefore, without the possibility of being dislocated, produce evil to an extent altogether unlimited.

First as to moral inaptitude. Not to speak of moral inaptitude in other shapes, moral inaptitude in the shape of corruption, may have place in any office, to any extent, without possibility of adequate proof, by judiciarily receivable evidence.

Judges’, &c., Remuneration.

Enactive.

Art. 1. The pecuniary remuneration is—

Of a Judge Immediate, [NA] per day.

Of a Judge Appellate, [NA] per day.

Of a Government Advocate Immediate, [NA] per day.

Of a Government Advocate Appellate, [NA] per day.

Of an Eleemosynary Advocate Immediate, [NA] per day.

Art. 12. Supposing the amount of inducement to stand exactly at 0, here then would be, what is regarded as the case of the class of functionaries known in England by the denomination of the Unpaid Magistracy, an institution against which and with so much force and justice, so much has of late been urged. As to this matter, in the country which is the scene of it, true it is that it swarms with evils of the greatest magnitude: with oppression, and depredation, in an infinite variety of shapes: with corruption, at once the cause, and among the effects, of those more immediately felt and tangible evils. But it is not to the circumstance of the services being unpaid, that is to say, not paid by money, levied by taxes, imposed upon the whole people in some proportion to their means, that the mischievousness of it consists.

Instructional.

Art. 13. It is composed of a variety of other circumstances.

Instructional. Exemplificational.

Art. 19. Many is the man, who, under the name of a Justice of the Peace’s Clerk, receives in this worst form at the people’s expense, pecuniary remuneration, to a greater amount than that which is received, in its least bad form in France by the Judge, whose title Juge de Paix, has been copied, together with the functions, in some respects, from that of the English Justice of the Peace.

Instructional.

Art. 20. What belongs to this subject is—the question between the receipt and non-receipt of emolument. As to the corruptive nature of the source, its effect as to increase given to expense, to the impoverishment of the relatively indigent, and to the denial of justice, see Ch. ix. Ministers collectively. Section 15. Remuneration.

Ratiocinative.

Art. 21. For remuneration for the service of judicial functionaries of all classes—magisterial and ministerial, why give salaries at the expense of the public, to the exclusion of remuneration in every shape, at the expense of individual litigants?

Because exaction of remuneration at the expense of parties litigant, would, as against them, be the height of oppression.

Instead of imposing on litigants the expense of litigation, (or any part of it, from which they could be exonerated,) to the exoneration of non-litigants, it is on non-litigants alone, as has been already observed, to the exoneration of litigants, that it should rather be imposed. For, the security which litigants do not enjoy without alloy, that is to say, without the expense and vexation which their situation as such, imposes on them, non-litigants enjoy pure and without any such alloy.

Because exaction or permission of remuneration at the charge of individuals in the situation of suitors, is a certain source of corruption: corruption unpunishable and ever increasing: and through this corruption, of correspondently increasing expense, vexation and delay, in contravention of all the appropriate ends, direct and collateral, of judicature and judicial procedure.

To authorize a Judge to exact in this manner for himself his own remuneration, is to authorize him to impose taxes (though under the name of fees) to an unlimited amount, and put the proceeds into his own pocket. No less defensible would be a law, authorizing the head of the army to pay himself, what he pleased for so being, than to authorize the head of the law so to do.

Ratiocinative.

Art. 22. Objection. Payment by fees is recommended in Ch. ix. Ministers collectively, Section 16, Locable who, Art. 47 to 50, in the case of Instructors, yet condemned in the case of Judges. These opinions, are they, and if yes, how are they, reconcileable? In opinions thus opposite, is there not an inconsistency?

Answer. No, not any. Of the reasons by which, in the situation of a Judge, remuneration in this mode stands condemned, there is not one that applies to the situation of an Instructor in arts and sciences: whether the instruction be or be not accompanied with board, or lodging, or both.

By giving increase to the number of the occasions on which, by himself or his locatees, fees are receivable, the Judge, if fees constituted the whole or any part of his remuneration, would by this means have it in his power, to give to the aggregate of it, an unlimited increase: that is to say, by giving a correspondent increase to the number of the occasions on which the fees allowed would be to be received: to the number of the operations performed, and to the number and respective lengths of the written instruments issued.

Thus it is, that, by the allowance of such fees in judicature, the interest of the Judge is placed in a state of diametrical opposition to, instead of unison with, his duty: an arrangement, by which a bounty is given on the production of delay, expense, and vexation.

In the case of the Instructor in question, in no one of the diversifications of which, in and by the arrangements in question, that official situation is susceptible, does the functionary see it in his power to make any addition to the quantum of his remuneration.

Ratiocinative. Exemplificational.

Art. 23. In every case, in which by any unpunishable means whatsoever, it is in the power of any man, for service in any shape, to give increase to the number of the occasions on which that same service comes to be rendered, this same opposition between interest and duty has place, and the mischievous efficiency of it, is more or less considerable: duty is sacrificed to interest. The evil sustained by the customer, by whom the service is bespoken and paid for, is more than equivalent to the good obtained by the dealer, by whom the service is performed and sold.

This state of things, to no inconsiderable degree has place, in the relation between patient and medical practitioner: in consideration of it, an arrangement not altogether uncommon in England, is that of an annual salary given by the patient to the practitioner.

Section XXVIII.

Judges, &c., Locable who.

1. List of all persons, whose service years have been commenced, but not yet fulfilled: with the solar year month and day in which each person’s actual service commenced: the number of the days on which in the course of that year he served, and the number of hours of service completed by him at the end thereof. Name of this list, The Locable Unfulfilled List.

2. List of all persons, who, their service years having been fulfilled, have respectively become capable of being located in the situation of Judge Immediate, but who are not as yet so located; and in this case, with the time of commencement, and the number of hours as above. Name of this list, The Locable Fulfilled List.

3. List of all persons, who, their service years having been fulfilled, have respectively been located in the situation of Judge Immediate; and, in this case, with the time of commencement and number of hours of service as above; the time of fulfilment, as above, and the year month and day on which, and the Justice Minister by whom, they were respectively located: also, the number of hours, served in each one of the two situations, as above. Name of this list, The Located List.

Art. 20. Excluded thenceforward, for this reason, from the capacity of being located in the situation of Judge, are accordingly the classes following:—

1. Persons, having served in the character of Government Advocates: to wit, whether Principals, Deputes permanent, or Deputes occasional. A bias in favour of the claims of the Government, even when insufficiently founded,—and thence on each occasion to the prejudice of the individual, whose claims stand in opposition to those claims,—may, in and from this situation, be naturally, and not unreasonably, expected.

2. Persons, having served in the character of Eleemosynary Advocates, whether Principals, Deputes permanent, or Deputes occasional. A bias in favour of the claims of the Helpless, even when insufficiently founded,—to the prejudice of those of their adversaries, even where sufficiently founded,—may, in and from this situation, be naturally, and not unreasonably, expected.

Answer. Reasons.

First, as to the not locating it in the hands of the Supreme Constitutive.

Want of time: namely, for receiving adequate information, as in the case of the function of the Executive Chief.

See those applying to the question, why not locate in the hands of the Executive Chief the location of the Justice Minister?

See also, the functions of the Justice Minister, which the Executive Chief would have to look to the exercise of, in addition to his own, and those of his subordinates, the ministers.

Ratiocinative.

Art. 14. In the case of the several functionaries of the administrative department, placed under the absolute direction of the Executive Chief, as to what regards official duty, contestation is neither desired nor expected: impartiality is therefore a quality that belongs not to the case.

Not so in the case of the Judges: in their case impartiality is an essential and indispensable attribute: were they in a state of dependence on the Executive Chief, their impartiality would be much weakened by this arrangement. Only in so far as there is no contestation with regard to the right, is it desired that the absolute dependence of all the several ministers on the Executive Chief should have place: in the case of judiciary functionaries, contestation is certain: only for the termination of it, are their offices instituted. Here it is essential that, in relation to functionaries so abounding with power as the Executive Chief, independence should be as decided as the nature of the case will allow it to be.

Instructional.

Art. 15. One class of cases may be seen, for the cognizance of which the most apt, or even the exclusively apt, provision, will be made by a set of Judicatories, composed, each of them, not of Principal functionaries, but of Deputes: and these Deputes located—not by their respective Principals, but in an Immediate way by the Justice Minister.

To this class belong those sorts of cases in which incidentally and casually a larger quantity of business is apt to flow in, than can without waste be provided for by any permanent establishment: larger than can be provided for, even by the herein-provided, newly-devised source of supply, the unlimited power of location given to the several Principals. A circumstance which would oppose additional difficulty to an adequate supply for any such extraordinary demand, is the need of employing one and the same spot, as the seat of the greater part of the whole of the number of these simultaneously constituted Judicatories: and of this case, the seat of Government would naturally afford an exemplification, were it only on account of its affording the most efficiently inspecting public.

Instructional. Exemplificational.

Art. 16. The plan on which, for all such casual and temporary demands, the most apt provision is capable of being made is, by the rest of the system, rendered sufficiently obvious. In the whole number of Judicial Territories taken together, with how near an approach soever to the maximum of adequacy the actual supply of Deputes may have adjusted itself to the demand, a number of these several functionaries ready to accept ulterior employment, will at all times be visible, greater than the whole number of those who have actually been in the habitual receipt of full employment. This considered, whenever an influx of business of this sort happens to come in, the Justice Minister issues an instrument of invitation, stating the nature of the business in question, together with the number of the Judges and other functionaries, necessary to the maximizing the despatch of it, and calling upon all qualified persons who feel disposed, to send in their proposals.

On this plan, the most exact agreement has place, between all interests concerned: between the interest of the public, in respect of the ends of justice; and the interest of the individual functionaries: the ends of justice to wit, as indicated by the evils, by the avoidance of which, they will be fulfilled.

1. As to non-decision. In these cases, as in all others, the interest of the public, and thence of Government, requires that the non-decision should, as to every part of the business, be minimized: in other words that despatch be maximized. But so does that of each individual functionary: if in this situation, his labours continue beyond a certain length of time, the limitation of them to a portion thus comparatively narrow of the logical field of service, would render him (as well in reality as in appearance) less qualified for traversing the whole field as a Principal, than if, with even less assiduity, he had been in the habit of giving to his attention, that same all-comprehensive and desirable extent. Hence, moreover, both interests require that the number of these Judicatories employed at once, be maximized.

2. As to misdecision. In these cases as in all others, by and in proportion to want of publicity, misdecision would of course be probabilized. In what instances soever, business of this description has in practice been assigned to special Judicatories, constituting with relation to the ordinary ones, so many Judicatories of exception, whatever portion of the light of publicity has been suffered to shine upon the proceedings of ordinary Judicature, has been withdrawn from these extraordinary ones: their proceedings have been carried on in hermetically sealed recesses: natural dens of corruption, fraud, depredation, and oppression.

But to the interest of the individual, the maximum of publicity is not less favourable, than to that of the public. That he may not be forgotten, or considered as laid aside, it will be for the interest of each to be seen continually in action, and that his mode of action be as conspicuous as the comparatively limited nature of the business will admit of its being made.

Over whatever part of the field a demand may have place, for indication of exceptions,—the cases here in question will not be found comprised in it. Of the demand presented by the Army Service, and the Navy Service, as also the grounds of it, a view has been given already. Of all those grounds, with the exception of that which applies to the demand for a special locator, not one, it may be seen, has place in the present instance.

Exemplificational.

Art. 17. In English practice, the provision made for business of this sort, stands exemplified in two sorts of Judicatories, termed Audit Courts, and Courts of Claims already mentioned in Section 1. In both these instances, but for the requisite explanations, the composition of the Judicatory might convey the idea of a system more favourable than the one here proposed, to the joint interests of economy and justice. No Eleemosynary Advocate; not even so much as a Government Advocate. The more profusely overloaded with emolument that office is in other instances, the higher is the value that will be apt to be set upon the saving made by the omission of it, in these. But were even economy everything, and justice in other respects nothing, loss to an incalculable amount, rather than saving, would be the natural, not to say the necessary result.

Such would be the case were there in each Judicatory but one Judge. From this total darkness, he would derive the uncontrolled power of ministering to the sinister interest and desires, signified or anticipated, of the patron by whom he was located. Oppression would thus be exercised on this or that individual: depredation consummated in favour of this or that other. But in practice, the number runs above one in an indeterminate degree: and by and in proportion to the number, the abuse, instead of being checked, is more likely to be multiplied. The majority has in this case the power of preventing it at the hands of the minority, but who of them all has the inclination? By opposition, no one would gain anything but ill-will and discomfort to himself. By connivance at the malpractices of his several colleagues, success to his own may be secured by every one. In all such harmony the presence of another instrument of Government in the character of an Advocate would suffice to plant disturbance. With him would unavoidably come in more or less of a public. By those other instruments of Government, otherwise than at the instance of this one, in favour of any sinister interest on the part of the ruler, to the prejudice either of the public or of individuals, nothing, how well soever inclined, could they thus venture to propose—nothing for which a ground ostensible and more or less plausible, could not be made.

Section XXX.

Judges, &c., Dislocable how.

Under this description, come in a more especial manner, those cases, in which the aberration has place—not in toto, but only in degree: on the face of the instrument they will easily be distinguished.

I.

Execution and Effect promised.

Art. 2. I will in all things, so long as I continue in the exercise of the functions belonging to this my office, pay obedience to the law: I will on each occasion use my best endeavours to give execution and effect to every part of it, according to what shall appear to me to be the intent of the Legislature for the time being: not presuming on any occasion to substitute any particular will of my own, to the will of the Legislature, even in such cases, if any, where the provisions of the law may appear to me inexpedient: saving only the exercise of such discretionary suspensive power, if any, with which the Legislature may have thought fit to intrust me.

II.

Impartiality in the general exercise of Power promised.

Art. 3. On every occasion, in the exercise of this my vocation, sincere and anxious shall be my endeavour, to keep my mind as clear as may be of undue partiality in every sense: of partiality in favour of any class or individual, to the injury of any other: of partiality, through self-regarding interest: of partiality, through interest inspired by sympathy: of partiality, through interest inspired by antipathy: more particularly will I be on my guard against partiality in favour of superiors, to the prejudice of inferiors: of superiors, in whatsoever scale of comparison—opulence, power, reputation, talent—natural or acquired.

III.

Bribery dispromised.

Art. 4. I will not at any time, accept any gift or favour, that shall have been offered me, in the view either of influencing or recompensing my conduct on any particular occasion in the discharge of the functions of my office: in case of my suspecting any benefit to have been conferred on me, or offered to me, or to any person supposed to be connected with me, or intended to be so conferred, with any such view, I will forthwith declare and make public, such my suspicion: nor will I, knowingly and wittingly, suffer, if it be in my power to prevent it, any such offer or recompense to be made, on any such account, to any person dependent upon or connected with me: but that on suspicion of any such offer or recompense, I will forthwith make public such my suspicion, together with the grounds thereof and the names of all parties concerned.

IV.

Secret intercourse with Applicants dispromised.

Art. 5. I will not, on any account, give ear to, but indignantly reprove, any application that may be made to me, in any manner or place other than on the judgment seat, and in the hearing of all, in relation to any cause, in contemplation of its depending or coming to depend before me: much less will I give any opinion or advice relative thereto: and should any such application be made to me in writing, I will forthwith produce and read the same in open Judicatory, although it should be contained in a private and confidential letter: so likewise if, having been addressed to any one else.

V.

Publicity promised, where due.

Art. 6. I will not endeavour to keep secret, but on the contrary, study by all suitable means to render in the most extensive degree public, the proceedings in all cases, except those in which the law shall have ordained them to be kept secret.

VI.

Secrecy promised, where due.

Art. 7. On every occasion, on which, in relation to any part of the proceedings belonging to my office, the Legislature shall have ordained secrecy to be observed, my sincere endeavours shall be applied to the giving full execution and effect to every ordinance directed to that end.

VII.

Non-revenge for Obloquy.

Art. 8. Whatsoever reproach may happen at any time to be cast upon me, (or any other functionary of the Judicatory,) whether in respect of my demeanour in the exercise of the functions belonging to my office, or on any other account, never will I, by means of any power or influence, derived from my office, cause, or seek to cause, or willingly suffer, evil in any shape to happen to any person concerned in the casting of any such reproach: saving only, in case of mendacious or culpably temerarious falsehood, designed or tending to the production of such evil effect, my right of applying to some other Judicatory, for such satisfaction, for wrong, or punishment, or both, as in the eyes of the Judge, the case shall appear to require.

VIII.

Non-self-servingness.

Art. 9. I will not, on the occasion of any pecuniary or other bargain, or understanding, directly or indirectly, receive or avail myself, or endeavour to avail myself, of the influence or authority of my station to obtain any advantage to myself or any other.

IX.

Non-electioneering.

Art. 10. I will not take any part whatsoever in any election, nor use any means, direct or indirect, to influence the vote of any other; excepting only the public statement of my pretensions according to law, on any election in which I shall myself be a candidate.

X.

Non-absentation.

Art. 11. I will not willingly absent myself from duty, except to the extent of the time allowed me by the law, or in case of unavoidable necessity, resulting from sickness or otherwise; nor then, without making the best provision in my power for keeping my place supplied.

XI.

Despatch.

Art. 12. I will, as far as depends upon me, give to every cause that comes into my hands, the utmost despatch that shall appear to me consistent with the purposes of justice: nor will I put off any cause, or give to any cause, the priority over another, but for special reason publicly declared.

XII.

Non-precipitation.

Art. 13. I will at no time, through impatience or otherwise, knowingly cause or permit justice to suffer by undue precipitation; and in particular, I will not bestow less attention upon the cause of the poor than of the rich; considering that, where small rights are seen to be contemned, great ones will not be deemed secure: and that importance depends not upon nominal value, but upon the proportion of the matter in dispute to the circumstances, and its relation to the feelings of the parties.

XIII.

Expense minimized.

Art. 14. I will not, through favour to those who profit by the expense of the administration of justice, connive at, much less promote, any unnecessary expense; but, on the contrary, study, as much as in me lies, to confine such expense within the narrowest bounds compatible with the purposes of justice.

XIV.

Non-impatience.

Art. 15. I will not, through impatience or favour to the official, or to the professional advocate, show discountenance to him who pleads his own cause, or to him who pleads gratuitously the cause of his friend, but rather show indulgence and lend assistance to their weakness.

XV.

Non-partiality by Deputation.

Art. 16. I will not either make or revoke any appointment of a Depute, permanent or occasional, with a view to favour or prejudice any suitor otherwise than according to justice; but for the common convenience of suitors, and only to the extent of the number which shall appear to me requisite to that end.

XVI.

Falsehood for elicitation of Truth dispromised.

Art. 17. On no occasion, nor for any purpose, although it were for the elicitation of material truth, will I employ any untrue assertion, direct or implied, for any such purpose as to cause any witness to believe or suspect that by any other witness, some matter of fact has been disclosed, that has not been disclosed: yet, while thus avoiding the utterance of falsehood, for the elicitation of truth, I will avoid at the same time, by disclosure of any evidence which has been delivered, the affording to any witness, any positive facility for the fabrication of false or other deceptious evidence. On every occasion it shall be among the objects of my endeavours to keep my own discourse, and, as far as depends upon myself, the discourse of others, as pure as may be, from the taint of fallacy in every shape.

XVII.

Urbanity to Parties and Witnesses.

Art. 18. On the elicitation of testimony, whether from party or extraneous witness, it shall, on every occasion, be my special care to avoid inflicting on their feelings any unnecessary wound: to avoid giving to my discourse any such shape as to involve the assumption of delinquency in any shape, as having place in his instance; or be indicative of anger or contempt as having place towards him, in my breast; or of menace in the event of his comporting himself in a manner otherwise than in accordance with my wishes.

Of no power or influence attached to my situation, will I ever avail myself, to any such personal and sinister purpose, as that of creating dependance, or exacting, or receiving homage. To avoid wounding, by haughtiness of demeanour, the sensibility of such of my fellow-citizens, whose business brings them into communication with me, shall be among my sincere and constant cares.

XVIII.

Repression of Advocates’, &c., inurbanity.

Art. 19. Careful to avoid inflicting any such unnecessary wound on my own part, I will be no less so in repressing, as soon as observed, all such disposition on the part of any other person possessing any authority, or performing any part on the theatre of justice: to wit, any Quasi-Juryman or Registrar; any Government Advocate, or Eleemosynary Advocate, or Professional Assistant or Substitute to a party; or any gratuitous Assistant or Substitute to any party; or any extraneous witness, on the occasion of any question, proposed by him to be put to any other witness.

XIX.

Aid to Brother Judges.

Art. 20. Where, on the occasion of a suit having its origin in the Judicatory of another judge, the function of eliciting evidence for the purpose of that same suit is committed to me, I will use my best endeavour, by means of such evidence as I shall thereupon elicit, to complete the necessary and sufficient ground for such decrees and mandates, as the nature of the case may require, and for giving thereto, full execution and effect.

Where, for the purpose of eventual execution and effect to such decrees as he shall have seen reason to issue, on the occasion of a suit originating in his judicatory, any other judge has issued, for any purpose, a mandate, to which, for such purpose, it is necessary that execution, in part or in whole, be given within my judgeshire,—far from obstructing, my endeavours shall, in so far as needed, be applied to the facilitating of such execution: applying myself in aid of, and so far as requisite in concert with, such my colleague, by the performance of any such operations as may be necessary to the affording equal benefit to such judgeables, to whom it has happened to address themselves to his Judicatory, on the one part, and such to whom it has happened to address themselves to my own Judicatory, on the other.

XX.

Reasons, given to audience.

Art. 21. So far as may be, without uneconomical expenditure of judicial time, I will on every occasion employ my best endeavours in affording to the surrounding audience in their quality of Judicial Inspectors, and to the Quasi-Jury on the occasion of a Recapitulatory Examination, a conception as clear, correct, and comprehensive as may be, of the nature of the case in hand, and of the considerations on which, in the character of reasons, the several operations performed by me in relation to it, are grounded.

XXI.

Legislation-regarding functions.

Art. 22. On every occasion, I will pay due and solicitous attention to the Legislation-regarding functions allotted to my office: I will be on the watch for every occasion on which need has place for amendment to the text of the law, whether in respect of matter or of form: and wheresoever in other respects, a demand shall seem to me to have place for an eventual amendment, it shall be my care, to the best of my ability, so to frame it, as to render it, in as perfect a degree as may be, well adapted to its proper end, and intended purpose.

For advocates of minor account, a station, adequate to the reception of as many as can have need of attendance, on the occasion of several successive causes, is provided. To an attorney and his clerk, for each of the parties to a cause, access neither could be, nor is, desired to be refused. These indispensable demands satisfied, the place left accessible to those of whose suffrages public opinion is composed, is in every point, form, extent, and comfort, kept in a state as ill-adapted as possible.

Ingress is not refused to the king’s subjects—no indeed: in this sanctuary of justice, the omnipresence of the God upon earth being constantly manifested, exclusion put upon any the meanest of his subjects, would be a diminution of his glory. Ingress is not rendered illegal; God forbid it should: it is only rendered impossible.

Instructional. Exemplificational.

Art. 3. Persons by whose presence publicity, so far as effected by information received through oral discourse, is constituted, are:—

1. The scribe or scribes of the Judge as such.

2. The plaintiff’s assistant with his scribe or scribes.

3. The defendant’s assistant with his scribe or scribes.

4. During the extraction of oral testimony, the witness under examination: incidentally any other witness or witnesses purposely confronted with him.

5. The advocate or advocates, if any, occupied in affording their assistance to the several parties on both sides.

6. The attorney or attornies, if any, occupied in affording their assistance to the parties on both sides.

7. In a case where a quasi-jury is called in the quasi-jurors.

Enactive.

Art. 4. The above of necessity: necessity being created by the form of procedure above proposed.

To be addible for the separate purpose of publicity:—

In front of the Judge’s seat, suitors with their witnesses waiting for their causes to come on. The line of seats nearest to that of the Judge, and thence the most commodious for sight, and hearing, to be occupied by those whose cause stands next in the list of causes. In the instance of a cause being appointed for a certain day, suppose it to be of the number of those which, while they afford considerable and extensive excitement to public attention, promise to occupy such a length of time as will naturally have for its natural effect, the deterring from attendance the parties whose cause stands next,—the quantity of space which, in ordinary cases, would have been occupied by the parties to the several suits, in their several turns, would thus exhibit a vacancy. For the filling up of this vacancy, tickets placed at the disposal of the parties to the appointed cause, and their agents, would thus afford a chance more or less considerable.

Instructional.

Art. 5. If in the nation, province, or district in question, in respect of number and mental cultivation taken together, the company thus divided—the section of the tribunal of public opinion thus constituted—be regarded as not sufficient, the eye of the legislator should be on the look out, for others competent in that respect to add to it. Of these distinguished members of that subsidiary tribunal—of these guardians of justice—the description would vary, according to the circumstances of the country, and the nature of its institutions. In a judicial district coextensive suppose with a parish, or containing in it parishes more than one, obligation suppose imposed by law, obligation of attendance by rotation, so far as such obligation can be imposed without preponderant vexation and inconvenience. In a town in or near which a military body of regulars has its station, attendance in like manner. In a nation, province, and district, having national guards, like attendance on the part of the officers of such guards. Title of the functionaries in question, guardians of justice.

Instructional. Exemplificational.

Art. 6. The following are the benefits sought to be promoted, and the evils excluded, with reference to the situation of Judge:—

Benefits and Virtues meant to be promoted.

1. Impartiality.

2. Incorruptibility, in a passive way.

3. Incorruptibility, in an active way.

4. Publicity in general.

5. Secrecy in appointed cases.

6. Unsolicitableness.

7. Abstinence from abuse of power, in Elections: viz. by usurpation of patronage.

8. Constancy of attendance.

9. Promptitude of despatch.

10. Closeness and continuity of attention even to the smallest causes.

11. Punctuality of obedience towards the legislative law.

12. Certification of its imperfections, whenever observed.

13. Minimization of expense.

14. Non-partiality towards advocates.

15. Indulgence and assistance towards suitors.

16. Amiable and patient deportment towards all.

Evils and Vices meant to be excluded.

1. Partiality, through sympathy or antipathy.

2. Yielding to corruptive applications.

3. Solicitation of corruptive agreements.

4. Concealment, where adverse to justice.

5. Divulgation, where adverse to justice.

6. Inchoate partiality by admitting private solicitation.

7. Abuse of power, by usurpation of patronage.

8. Violation of duty, by non-attendance.

9. Dilatoriness, by indolence, negligence, or design.

10. Inattention, particularly to small causes, thence precipitation.

11. Disobedience, as towards the law: viz. by misinterpretation, or arbitrary decision.

12. Creation, or permission of needless expense to suitors: so vexation.

13. Partiality towards advocates: contempt towards, and non-assistance, of suitors and their gratuitous assistants.

14. Insolence, contemptuousness, and proud deportment as to suitors and visiters in general.

15. Harshness towards delinquents, and persons accused of delinquency.

16. Assumption of superior virtue, on the ground of superior power.

Instructional.

Art. 7. Of the various other securities for appropriate aptitude, moral, intellectual, and active, whether antecedential, concomitant, or consequential, or say ulterior, see Ch. vi. Legislature, Section 31; Ch. ix. Ministers collectively, Section 25, and also the various Sections contained in this Chapter: more particularly Sections 14 to 18, and Sections 25 to 31.

Instructional.

Art. 8. Additional securities, applying not to the situation of the Principal, but only to that of the Depute, are the following:—

1. Power of the Principal to make, in relation to his own judicatory, general regulations as to the distribution of business, between Depute and Depute, as per Ch. xiv. Judge Immediate Deputes permanent.

2. Power to a party to apply to a Depute permanent, to make reference to the Judge Principal, as to this or that particular point, as per Ch. xiv. Section 2, Relation to Principal: and in case of his refusing or omitting so to do, to apply to the Judge Principal for that same purpose.

3. Dislocability of the Depute by the Principal, as per Ch. xiv. Section 2.

Instructional.

Art. 9. The securities which apply to the situation of a Judge Depute permanent, apply to that of a Judge Depute occasional, except always, the concomitant security relating to connexions: for which, as regards the situation of Judge Principal, see Sections 16, 17.

Instructional.

Art. 10. Securities applying to the situation of Judge Appellate, and not to that of Judge Immediate, are the following:—

1. The proof of ulterior appropriate experience.

2. Ulterior proof of irreproachableness afforded by the additional scrutiny—to wit, by the antecedential security, afforded by the scrutiny, preparatory to the Judge Immediate’s promotion to the situation of Judge Appellate.

Instructional.

Art. 11. Most of the securities which apply to the situation of Judge Immediate, apply to that of Government Advocate.

Ulterior securities are—

1. To any person that thinks fit, in consideration either of his own or any other private interest, or any public interest, power to apply to the Judge for his mandate, requiring the Government Advocate to act on the occasion in question, whether on the Pursuer’s, or on the Defendant’s side of the suit.

2. Add to this case the concurrent authority given to persons at large; viz. in the character of informants, and that of pursuers, in non-penal and purely penal cases: and in the character of persons specially wronged, and, as such, co-pursuers, in publico-private penal cases.

Instructional.

Art. 12. So, in the case of an Eleemosynary Advocate. To any person regarding himself as having a need of his assistance, or to any other person on his behalf, power to apply to the Judge, for his mandate, requiring the Eleemosynary Advocate to act as such, in behalf of such relatively helpless person.

Section XXXIII.

Judiciary Apparatus.

Enactive. Expositive.

Art. 1. By the Judiciary apparatus, understand the stock of things which, to enable the Judiciary Establishment to discharge its functions, require to be at the disposal of the Judges in their respective Judicatories, under the direction of the Justice Minister.

Expositive.

Art. 2. The articles of which this stock is composed, will belong partly to the class of things immoveable, partly to the class of things moveable: and to divers things immoveable, will be attached so many appropriate aggregates of things moveable.

Enactive. Expositive.

Art. 3. Belonging to each Judicatory, will be immoveable things following:—

1. Justice Chambers, one or several.

2. Repositories for Books and Papers, and materials for writing.

3. Official habitations, of any such Judiciary functionaries, to whom the Legislature shall have thought fit to allot such abodes at the public expense.

4. Waiting-rooms: and rooms for any such parties and witnesses, as, for prevention of sinister concert, it may on this or that occasion be deemed fit to keep in a state of separation from such or such other persons,—may for that purpose be provided.

5. Places of confinement attached to, or otherwise allotted to, the use of the Judicatory.

Enactive. Expositive.

Art. 4. Of moveable things belonging to each Judicatory, examples are as follows:—

1. The furniture of the Justice Chamber, or the several Justice Chambers.

2. The official habiliments or ensigns of the Judges, and such other of the actors on the judicial theatre, to whom distinctive habiliments or ensigns of office are allotted.

3. The arms of such judicial officers by whom, on occasion, the bearing of arms of any kind, comes to be necessary to enable them to exercise their respective functions.

4. Instruments of repression applicable in case of necessity to the bodies of refractory persons, in the exercise of the sedative function.

5. Instruments of punishment.

Art. 8. So order matters that of the discourse held in the chamber between one person and another, all opportunity of concert for a sinister purpose be as completely as possible excluded.

Enactive. Expositive. Instructional.

Art. 9. In this view, consider on what occasions, for what purpose, and between what persons, such intercourse will naturally be subservient to the purposes of justice.

Consider, moreover, on what occasions such intercourse may naturally be liable to be repugnant to the ends of justice.

As between actor and actor on the judicial theatre, what will generally be necessary is, that in the judicatory itself, they should incidentally hold communication with one another: what, exceptions excepted, does not seem to be necessary in any case is—that the matter of that communication should be a secret to any of the others: for publicity, there is the general reason—prevention of concert, for the purpose of promoting private interest at the expense of public.

1. The Judge might seek to bring over the Jury to his purposes, by considerations which, being addressed to their prejudices and passions, shame would prevent him from submitting to a more enlightened part of the company present, such as his comrades in office, and the professional section of the Judicial Inspectors, and this or that one among the miscellaneous portion—the suitors waiting for their turns.

2. By concert with his comrades in office—the Registrar, the Government Advocate, and the Eleemosynary Advocate, he might indulge in a greater degree of despatch than would be consistent with a due regard for the main and direct ends of justice.

Expositive. Instructional.

Art. 10. Of the aggregate company of those actors, one class there is in whose instance prevention of secret intercourse will frequently be an object of particular importance: this is, during the period of elicitation, that of the witnesses whose interests and affections are on the same side: in this case, the evil to be obviated, is information given by a party witness to another, either during examination or antecedently to his examination.

On the occasion of suits styled criminal, there is in general no want of disposition to employ precautions of this sort. But the demand for them is frequently not less urgent, in cases styled civil, in which no party on either side is exposed to any suffering that bears the name of punishment. But as in a case of this sort, the amount of the largest mass of property may be at stake,—there exist no other bounds than those which limit this property, to the magnitude of the bribe, which he who stands in need of an article of mendacious testimony may be willing to give, and he in whose power it is to furnish it, be no less willing to receive. Here then is an instance, among so many others, in which difference in respect of precautionary arrangements, should not be too blindly and absolutely determined by the distinction expressed by the words penal and civil, in regard to suits.

Enactive. Instructional.

Art. 11. Legends for the Justice Chamber, printed in large placard types, should be hung up in every Justice Chamber whenever so employed:—

Examples of such Legends are—

1. Greatest-happiness principle.

2. Ends of Justice.

3. Truth-securing monitions.

4. Warnings against falsehood.

5. Elementary functions of Judge and Quasi-Jury.

6. Judge’s Deportment Rules.

7. Suitor’s Deportment Rules.

8. Judge’s Inaugural Declaration, (if not too long.)

Enactive. Instructional.

Art. 12. In the construction and arrangement of a Justice Chamber, the following considerations and rules should be kept in view:—

1. Maximize the number of those by whom everything that passes can be heard.

2. Maximize the number of those by whom everything visible that has place or passes can be seen.

3. Maximize the convenience and comfort of the several actors on the theatre, according to their respective functions and stations.

4. If all cannot in equal perfection exercise the faculty of hearing, let it be exercised by those in whose instance it is of the greatest importance to justice that it be exercised.

5. So in regard to the faculty of seeing.

Note, that from the sight, the hearing, and thence perception and conception in all their parts, receive assistance.

6. Convenience includes not only the faculty of occupying the situation in question, without annoyance, but with it the faculty of making to the best advantage application of what has been seen and heard: and in particular the faculty of minutation.

Instructional.

Art. 13. Stations which may with propriety be elevated are—

1. The Judge’s.

2. The Registrar’s.

3. The Quasi-Jury’s.

4. The Government Advocate’s.

5. The Eleemosynary Advocate’s.

6. The Pursuer’s.

7. The Defendant’s.

8. The Witness’s.

Instructional.

Art. 14. While contributing to the examination of witnesses, the Government and Eleemosynary Advocates’ stations might be under the Judge’s. While addressing the Judge, opposite to the Judge’s.

Art. 2. As instruments of discrimination: that on every occasion, each by every other actor on the judicial theatre, (casual visiters included,) may, at first glance, be seen to be, in respect of official situation, or occupation, what he is; and not regarded as being in any such respect what he is not.

By the word distinction, a conception opposite to that intended might have been conveyed: for, in the English language, distinction, though originally meaning nothing more than discrimination, is come to denote a source of respect.

Instructional.

Art. 3. By this means, whosoever has need of service in any shape, at the hands of a member of any one of these classes, sees at once, and without loss of time in inquiry, or danger of mistake, the individual from whom such service can be obtained: the characteristic habiliment is as a sign to a shop.

At the same time, with equal rapidity, if any deviation from the appropriate course of action, belonging to each actor on the scene, should, in the instance of any one of them, take place, observation may be made of it by every other.

Enactive. Instructional.

Art. 4. Not as a source of respect. In this character, a distinguishing habiliment would either not operate at all, or operate as an instrument of delusion—an instrument of factitious dignity. In this case, as in every other, an enemy to all natural, is all factitious dignity, of whatsoever appendages composed: it operates as a bounty upon, an encouragement to, and a cause of, misbehaviour. Keep excluded all such marks, and every individual is judged according to his works: apply those marks, every individual is judged otherwise than according to those same works: he is judged according to the works looked for, at the hands of all individuals, belonging to that same class.

Of all the classes here in question that of the Judge’s is the only one,—in the instance of which, under a system such as that here proposed, the effects of any such delusion would be apt to be productive of any considerable mischief. But for the caution here given, long flowing robes, such as among civilized nations have been in use to be thus employed, would naturally be allotted to the functionaries of the higher grades. In so far as these marks of distinction have had their intended effect, they have procured for the worst man the same quantity of respect as for the best.

Instructional.

Art. 5. Respect, in a proportionate quantity on the one part, will, by the nature of man, be among the inseparable consequences of power on the other. So likewise with respect to appropriate intellectual aptitude, in whatever shape, it cannot fail to be possessed by every one to whom it can happen to have been located in the situation of Judge. But by the sort of certificate afforded by habiliments, of a form and texture similar to those customarily worn by persons belonging to this class, his habitual good behaviour will be certified as being at least equally good with that of an average man of that same class: and of this certificate every unapt individual will avail himself in such sort, as, without fear of consequences, to indulge in the practice of those pernicious habits, to which, by the possession of the power belonging to that commanding situation, he stands exposed. By haughtiness of demeanour, it will be his endeavour to maximize the quantity of respect bestowed on him by all who are subject to his power: and whatsoever is claimed by apparent knowledge, is naturally conceded by self-conscious ignorance.

Instructional. Exemplificational.

Art. 6. In English practice, for the production of every good effect producible by judicature, no peculiarity of habiliment is necessary. If not the highest, the Privy Council is among the highest among English judicatories. Sitting on the judgment seat, no habiliments does a Privy Councillor wear, distinct from those which are worn by other gentlemen.

At the Quarter Sessions of the Peace, sit, amongst other gentlemen, members of the House of Peers, none of them wearing any other than their ordinary dress.

Enactive.

Art. 7. If gowns are employed, the difference between that of the Judge and that of the Law Practitioner, should be conspicuous. Colour of the Judge’s plain; that of the Lawyer’s, party-coloured. The Judge’s rather brown than black: black gives an air of gloom and severity, rendering the wearer an object rather of terror than of amiable regard.

Functionary Advocates should, in this way, be distinguished to the eye, from the non-functionary ones.

In every instance, the costume of the Deputes, whether permanent or occasional, should be the same as that of their respective Principals.

Enactive.

Art. 8. For the Quasi-Jurors, discriminating habiliments, such as to cover their ordinary garments, are provided at the public expense. In this way, the comparatively indigent members will be preserved from contempt: and their comparatively opulent colleagues, and the other actors on the scene, from disgust.

Enactive.

Art. 9. Common to all functionaries, a sash, with a legend, indicative of the particular function, in a different colour. Section xxxvi. Prisons.*

[* ]Throughout this code—for the opposite purpose of maximizing the strength of the sense of responsibility—the word Judge is, in so far as recollection serves, employed in preference to the word Judicatory; except where the word Judge might not be sufficiently comprehensive.

[† ][Theatre.] Theatres (be it remembered) there are moveable as well as immoveable.

[* ]The word Informer, though in its original signification exactly equivalent to informant, has, by the dyslogistic import, which has become attached to it, been rendered, with reference to the purpose here in hand, unfit for use.

[* ]An appellative, customarily employed, in the English language in particular, as synonymous to a suit, is a cause; but, such is the ambiguity resulting from the other import—the logical, or as some would say, the metaphysical import—given to this same word, that, throughout this present work, it has seemed advisable to abstain from giving any employment to it. Suit has for its conjugates (as logicians say) to sue, to pursue, suitor, pursuer, pursuit: cause, employed in this sense, has no such conjugates.

[* ]Vol. vi. p. 387. A Commentary on Mr Humphrey’s Real Property Code.

[* ][Executionalists.] Executioner would have been the more simple, and thence the more convenient appellative. But for this purpose it has been spoiled: namely, by being confined to the designation of persons employed in the infliction of mortal punishment; or, in its most extended sense, persons employed in the infliction of dolorific corporal punishments.

[* ]In this case, in and by existing codes, the judge has been spoken of as acting ex officio, or ex mero motu; and, in penal cases, the course, or say the system of procedure, taken in its totality, has been styled the inquisitorial, in contradistinction to the accusatorial.

[* ][Quasi-Lictor.] Under the law of ancient Rome, Lictor was the denomination by which a functionary exercising functions of this sort, was designated.

[† ][Vendue-Master.] In the English West India Colonies, functionaries thus employed, are designated by this denomination.

[* ]1. Adequate (it is believed) to the purpose of giving, in the most effectual manner, and with least delay, vexation, and expense, execution and effect, to the aggregate of the mandates, issued by the aggregate body of the judges, is the aggregate of the functions, in and by this code, allotted to the aggregate of the other functionaries belonging to the judicial department: adequate, or at any rate not wanting much of being so, in respect not only of comprehensiveness, but also of clearness and simplicity; clearness, to the exclusion of obscurity and ambiguity; simplicity, or say non-complexity or non-complicatedness, for the sake of clearness and avoidance of needless delay, vexation, and expense.

2. In respect of those several desirable properties, in a greater or less degree, will (it is believed) be found to fall short of them, the aggregate of the arrangements, in every as yet established Pannomion, in whatsoever nation established.

3. Look now to matchless Constitution; there, instead of adequacy,—instead of a stock “without overflowing full,”—behold a mixture of deficiency and redundancy: deficiency, to a considerable amount; redundancy to an absolutely unmeasurable amount. Of judiciary functionaries, (the judge in the instance of many of them, being disguised under so many different names,) for a list, though not yet a complete one, see Petition for Justice, (vol. v. p. 437 et seq.)

[* ]In the latter part of October, or the former part of November, 1825, such is the state of things that must be believed to have had place in the Judiciary Establishment of Scotland, if credit be given to certain letters on the subject in the Globe and Traveller, and the Morning Chronicle of that time. [There may still [1841] be four successive grades of appeal in Scotland. Beginning with the Sheriff-substitute, a case may be carried before the Sheriff, thence to the Outer-House of the Court of Session, thence to the Inner-House, and lastly to the House of Lords.—Ed.]

[* ]Note, that under the system of procedure which the hereby-instituted Judiciary establishment all along bears reference to, and supposes to be in existence, in no case has the Judge above, for the basis of his decision any mass of evidence other than that which has been present to the cognizance of the Judge below. This supposed, for no expense can there, in the Judicatory above, be any demand other than the expense of obtaining professional argumentation on the ground of that same evidence. For the eventual defraying of that expense, the finding adequate security, should such be the mandate of the Judge below, may, under that same system of procedure, be a condition to the allowance given to the act of making appeal; in that case the Judge above will not take cognizance of any appeal, in the case of which the appropriate written instrument does not contain a word or words of permission, signed by the Judge below.

Throughout the whole tenor of this code, and thence throughout this section in particular, a power, the existence of which is supposed to have place on the part of the Judge, is, on every occasion, in so far as in his eyes the information in question is necessary to justice,—the power of making inquiry into the pecuniary circumstances of every individual, who, in any character whatsoever comes before him; for, suppose no such power to have place, denial of justice, coupled with and aggravated by, exercise of oppression may, instead of administration of justice, be the result.

In point of fact, should the case be such that, in no judicatory as yet having existence under any government, any such power has place,—on this supposition, so it is that in no judicatory as yet in existence, is fulfilment given to the ends of justice. True it is, that to an amount more or less considerable, evil will be among the number of the results of such inquiry: but, by this undeniable fact, no reasonable objection to the institution of such inquiry will be opposed; for not less true is it, that from beginning to end the whole business of judicature is but a choice of evils.

But injustice, depredation, and oppression, to any amount, under colour of justice, may, under any government be accounted for, and shown to be natural, by one notorious fact: namely, that, under every government as yet in existence, the system of procedure has been the product of the labour of a set of men, whose interest it has been,—that for their benefit, injustice, depredation, and oppression, in so far as beneficial to that same sinister interest, should be maximized.

But a question that may be asked is—the judge below, in a case in which it is his intention to do injustice, (and this is a case which must throughout be provided for,) will he thus lend his hand to the frustration of that which by supposition is his own purpose? Should not the act of making appeal have, without more ado, the effect of stopping the execution of the decree of the judge below?—leaving it to the judge above, to impose on the party appealing, the conditional obligation above-mentioned? Questions these,—for the consideration of the legislature; but to which no determinate answer can be given, till the very tenor of the Code of Procedure, and of the corresponding part of the Substantive Code, has been determined.

Against this evil, in Section 18, Incidental Complaint Book, will be seen a provision which, even of itself holds out a promise of being—not merely an efficient, but even a sufficient, remedy: it consists in the conveying, on every occasion, to the judge above, information of everything which, on that same occasion, has been either done or said, by the judge below: thence it is, that by the subordinate judge no criminal act, positive or negative, can be committed, but information thereof will find its way to the cognizance of such his superordinate.

In the Procedure Code, in certain suits of a penal nature, the question may come to be started, discussed, and settled,—whether, for the avoidance of preponderant evil in the shape of expense, vexation, and delay, it may not upon the whole be advisable to inhibit the exercise of the right of appeal. The question belongs not to this place; only to obviate the imputation of want of due consideration, is mention here made of it.

[* ]This was written during the reign of Charles the Tenth.—Ed.

[† ]There are now five Judges in each of the three Superior Courts. While four of them are sitting in banco, during Term time, the fifth sits in a separate court for the purpose of taking bail, determining points of practice, hearing motions of course, and motions which are not deemed of sufficient importance to be made before the full Court. This Judge also sits at nisi prius, and at Chambers.—Ed.]

[‡ ]The number is now fifteen; each of the three Common Law Courts having a Chief and four Puisne Judges.—Ed.

[* ]Printed at commencement of vol. ii. in this collection.—Ed.

[* ]In several instances, it has been raised to £5.—Ed.

[* ]For modes of disturbance and annoyance, see Ch. vi. Legislature, Section 16 (Election Code, Section 13) and Penal Code, tit. Simple corporal vexation.

[* ]In this case, the principle, applied by the strait waistcoat to the upper extremities, is applied to the lower. No pain is suffered in the former case; as little in this latter. In the former case, the utmost extra-force capable of being conferred by insanity, is subdued; not less effectually would be the utmost force capable of being exerted by the strongest man in a state of mental sanity.

But, where the strait petticoat is employed, so might the strait waistcoat have to be employed along with it: otherwise the hands might be effectually employed in the removal of whatever obstructions were applied by the strait petticoat.

Thus might the use of the needlessly-afflictive and odium-inspiring instruments called irons, be altogether superseded: irons—in their two species, namely, manacles, applied to the upper extremities; fetters, applied to the lower.

At the time of the first French Revolution, a medical man of the name Guillot, invented the so much talked of instrument, which from him took the name of the Guillotine. Of this invention, the object and effect was to minimize the suffering produced by the death punishment, called decapitation, or say beheading. For the service thus done to mankind, the retribution received by the benevolent and beneficent philosopher, at the hands of the prejudiced and the thoughtless, in but too great numbers, was the reproach of cruelty. To no inconsiderable an extent the like retribution can scarcely fail to await the proposer of the herein above-mentioned instruments.

[* ]See vol. iv. p. 354 et seq.

[* ]The number is now reduced to two.—Ed.

[† ]Liverpool has had one for the last three or four years.—Ed.

[* ]Consideration, on this occasion, will be had of those parts of the globe in which, for a length of time, more or less considerable, no alternation between light and darkness has place.

[* ]Now fifteen.

[* ]Lord Eldon.

[* ]Since the first volume was printed, comes a document, which (not to speak of so many others, which a search made on purpose might discover) may, in the case of the legislature, serve to place the importance of undiscontinued sitting, in an instructive point of view. In Ireland, of seven millions, sia, for the benefit of 400,000 of the other million, are, by the laws and the execution given to them, thrust down into a separate class, on which (all relaxation notwithstanding) hardship and contempt are continued to be heaped in variegated abundance. Consequences, natural and certain: on the part of the injured millions, correspondent discontent: on the part of the authors of the injury, correspondent alarm; with continuance or repetition of hostile, in the place of judicial procedure, for the suppression of that counter hostility, for which the whole frame and practice of government is one continued provocation.

Amongst other statutes made under the pressure of this exigency, is one which not only in common, but also in official language, is called the Insurrection Act: insurrection being regarded, and with but too full cause, as an occurrence continually either in existence, or impending: the whole frame of government being such as, if it had for its purpose the production, suppression, and reproduction of insurrection, in a perpetual series, could not have been more appropriately devised.

Of this same Insurrection Act, such is the matter and spirit, that to have rendered it perpetual, would have been to make declaration of a system of government, such as could scarcely fail of consigning to destruction the very class for whose sake it would have been pursued: for, so long as fire will burn, in the power of an encompassing and exasperated majority, will always be the habitations of the minority, with their real and personal contents. Such is the state of things, in which during about half of every year (with custom for sole reason) the legislature keeps itself in sleep and impotence.

Behold now an example of the consequence. In the opinion of the possessors of the constituted authority,—the executive, comes a demand for the powers given by this same Insurrection Act: that Act, “the administration” of which, was (it seems) “so efficacious in a former crisis of difficulty and danger.” But the Act is dead: to resuscitate it, another act would be necessary. Such other act, when is it then that it could be had? not till “some months” are over. But if, without any such corroboration, at the accustomed rate, government can be carried on for some months, why not for any number of years?

Extract from the Morning Chronicle, 16th November, 1827.

Ireland.

Extract from a letter signed William Lamb, and written in the name of the Lord Lieutenant, to the Earl of Llandaff, in his capacity of chairman of the General Meeting of Magistrates of the County of Tipperary, held on the 20th of October, 1827.

“The Magistrates are apprized that the Lord Lieutenant cannot exercise the powers conferred by the Insurrection Act without a new act of the legislature: and as Parliament is not likely to assemble, for the despatch of business, before the usual period of time, some months must elapse before any application can be made for such a statute.

“His Excellency trusts that the Magistrates will apply to the exercise of such means and powers as the present laws afford, the same spirit of fortitude, zeal, and activity, which rendered the administration of the Insurrection Act, so efficacious in a former crisis of difficulty and danger.”

[* ]See Book i. Ch. x. Corruption.

[* ]The enormous fees payable by litigants in Scotland have now (1841) been considerably reduced.—Ed.

[* ]Provision is thus made against superfluous and sinecurist Judge Deputes permanent.

[* ]No MSS. having been found relating to Prisons, which was the title given by the author, to Section 36, in the Table of contents, printed during his lifetime, the reader is referred to the author’s comprehensive work on that subject, entitled, Panopticon, in vol. iv. of this collection.—Ed.

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CHAPTER XII. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 9 (Constitutional Code) [1843]

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CHAPTER XII.

Judiciary Collectively.

Preliminary Observations.

Section I.

Excepted Judicatories.

Expositive.

Expositive.

Expositive.

Expositive.

Expositive.

Expositive. Ratiocinative.

Expositive.

Expositive.

Instructional. Ratiocinative.

Expositive. Exemplificational.

Ratiocinative.

Answer. Reasons.

Section II.

Actors on the Judicial Theatre.

Instructional. Expositive.

Instructional. Expositive.

Instructional.

Expositive.

Instructional.

Instructional. Expositive.

Instructional. Expositive.

Expositive.

Expositive.

Expositive.

Exemplificational.

Exemplificational.

Expositive.

Instructional.

Expositive.

Instructional. Exemplificational.

Expositive.

Exemplificational.

Instructional. Exemplificational.

Exemplificational.

Instructional.

Instructional.

Section III.

Judiciary Functionaries.

Enactive. Expositive.

I.

Magisterial.

II.

Ministerial.

I.

Magisterial Judiciary Functionaries.

Enactive. Expositive.

Expositive. Instructional.

Enactive. Expositive.

Enactive. Expositive.

Expositive.

Enactive. Expositive. Ratiocinative.

II.

Ministerial judiciary functionaries.

Expositive.

Expositive.

Instructional. Expositive.

Expositive.

Expositive.