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CHAPTER XII. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 9 (Constitutional Code) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 9.
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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.
Art. 1. By the Judiciary Establishment, understand the aggregate of all persons and all things at all times belonging to the Judicial Department: as to which see Ch. iv. Authorities.
Art. 2. By a Judicatory, understand the aggregate composed of all functionaries at all times employed in the exercise of the aggregate, or say collective judicial functions, within the territory of this state; or in the territory of any other state, in virtue of a commission lawfully emanating from any functionary, exercising any such aggregate, or say collective judicial functions, within the territory of this state. For the elementary judicial functions, of which the above-mentioned aggregate function is composed, see Section 9.
Art. 3. Comprised, accordingly, under the denomination of a judicatory, are—
1. All judges principal, immediate, and appellate, as contradistinguished from judges-depute permanent, and judges-depute occasional; principal, for distinction’s sake, to distinguish them from their respective deputes.
2. All judges-depute permanent just mentioned, as to whom, see Section 3, Judiciary Functionaries, and Ch. xiv. Judge-Deputes permanent.
3. All judges-depute occasional; as to whom see Section 3, Judiciary Functionaries, and Ch. xv. Judge-Deputes Occasional.
4. The Justice Minister: in so far as occupied in the exercise of judicial functions: as to whom see Ch. xxiv. Justice Minister.
Art. 4. By a single-seated Judicatory, understand that of a functionary, acting as such, by himself, in the situation of judge, his authority not being shared with him by any other individual in that same situation.
Art. 5. By a many-seated Judicatory, understand the fictitious body, composed of functionaries more than one, acting no otherwise than conjunctly in the exercise of the authority belonging to a judge.
Art. 6. Under this Code, a few special instances excepted, and in each for special reasons, no many-seated—no other than a single-seated judicatory has place. For the special instances, see Ch. vi. Legislature; Section 27, Legislation Inquiry Judicatory; Section 28, Legislation Penal Judicatory. Ch. xv. Judge Immediate Deputes Occasional, Section 5, Referees deputable. For the reasons why, these excepted, a single-seated is preferred to a many-seated judicatory, see below, Section 5, Number in a Judicatory; and Ch. ix. Ministers collectively; Section 3, Number in an office.
Art. 7. By Excepted Judicatories, understand all judicatories to which, unless in case of special reference, the ordinances contained in chapters from xii. to xxiv. inclusive, are not intended to apply.
1. Legislational Judicatories, as per Ch. vi. Legislature; Section 27, Legislation Inquiry Judicatory; Section 28, Legislation Penal Judicatory.
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.
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.
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.
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.
Art. 11. For the designation of a Judicatory, why employ this term, to the exclusion of the more commonly employed word Court?
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.
12. In the mind of the functionary, by presenting to view a fictitious, in the room of the real entity, it obnubilates and weakens the sense of responsibility: while Ixion-like, the mind of the deluded multitude embraces the shadow, the substance escapes its grasp.*
Actors on the Judicial Theatre.
Art. 1. Actors on the Judicial Theatre,† or say, Performers in the Judicial Drama. Of these, some will be seen to be Judiciary functionaries; as to these, see Section 3: others, not; as to these, see the remainder of the present article. But note here—that to one and the same individual it may happen to be in two consecutive moments a performer in two different characters:—that of a non-functionary, and that of a functionary: as to this matter, see Section 3, Judicial Functionaries.
Art. 2. On his first appearance in the Judicial theatre, in the presence of the Judge as such, addressing himself to the Judge, it is either of his own motion, or at the call of some one else, that a person, be he who he may, enters:—entering of his own motion, and for the purpose of being heard, by the Judge, to whom he makes application to be heard: this doing, he may, by a customary denomination, be styled an Applicant.
Art. 3. Purposes for which, to a Judge, as such, application is capable of being made, are two: 1, to render service to him in this or that shape; or 2, to demand service in this or that shape, at his hands.
Art. 4. When, by any person, application is made to a Judge, as such, it is made by him either on his own account or on account of some other person or persons, or on both accounts or on any joint account. In so far as it is on his own account, let his denomination be—principal Judiciary applicant: in so far as on account of any other person, assistant Judiciary applicant.
Art. 5. Of a service which it may be of use should be rendered by an individual to a Judge as such, the beneficial effect will be to make addition, in some shape or other, either to his appropriate power, or to his appropriate knowledge. To his appropriate power, service cannot need to be rendered, otherwise than in an extraordinary state of things: that is to say, when resistance thereto is either experienced or apprehended. For the cases in which, in consideration of such extraordinary states of things, power is given to call for service in this shape at the hands of individuals at large, see the next Section, Section 3, Judiciary Functionaries, Art. 22, and, if it be right that, for this purpose, appropriate service should be rendered compulsorily, not less so is it, that it should be tendered, spontaneously, or, in any other way, voluntarily. Aid-tenderer is the appellation by which, in this case, the applicant may, upon occasion, be designated.
Art. 6. If it be in respect of his appropriate knowledge, that service is tendered, and thereupon rendered, to the Judge, it is, in the shape of information: by information given to him in relation to some matter of fact. Informant* is the appellation by which, in this case, the applicant may be, and accordingly is wont to be, designated. For the several purposes, for which such information may be tendered and received, see Procedure Code, Ch. viii. Judicial application.
Art. 7. If, for service, in any shape, a demand is made at the hands of a judge as such,—it will be either at the charge of some determinate party, or not: if yes, it will have for its purpose the giving commencement to a suit at law, or say for shortness, a suit:* if not, it will be for some one or other of divers purposes, as to which see Section 22, Judges’ preinterpretative function, Section 24, Judges’ non-contestational-evidence-elicitative function: and Procedure Code, Ch. viii.
Art. 8. By a party to a suit, understand a person, or set of persons jointly considered, in any number, whose station is on one and the same side of it.
Art. 9. Sides in a suit, two: the pursuer’s and the defendant’s. Pursuer, the party by whom, at the charge of another, a demand is made: Defendant, a party at whose charge a demand having been made, is by that same party resisted.
Art. 10. A suit is of two sorts: either a completely constituted suit, or an incompletely constituted suit: a completelyconstituted suit is that, in which, on the two sides, appear and act two individual parties as above: an incompletelyconstituted suit, that, in which, there being on one side, one such party,—there is not on the other side, any such party,—any person, other than the Judge. Ordinary,—that is to say to the greatest extent exemplified, is the case, in which the suit is completely constituted: extraordinary, that in which it is incompletely constituted.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Magisterial Judiciary Functionaries.
Art. 2. By a Judge, understand a functionary, to whose principal and characteristic functions, exercise is given, by his giving, by means of appropriate decrees—opinative and imperative—and the mandates thereto conducive, execution and effect to ordinances of the Legislature; that is to say, in all cases, those excepted, in which the obligation of producing that effect belongs to functionaries in the Legislative and Administrative departments in their several and respective fields of service.
Art. 3. Note, that in the case where really existing law, called statute or written law, is the object, or say subject matter of reference, the ordinance in question is a really existing ordinance; inasmuch as the terms of it did originate with, and were fixed by, the Legislature: whereas in a case, in which the object or subject matter of reference is that which is universally called Unwritten Law, and by English lawyers Common Law, (in one of the several senses in which that appellative is employed)—there not being any such really existing object, or say subject matter of reference, applicable to the case,—an imaginary portion of falsely supposed existing law—say a supposed virtual ordinance—must, on the occasion of each demand made by a suitor, be imagined for the purpose: imagined—in the first instance—either by the judge himself, as where, without application made to him by any person, he begins to act as under some systems of procedure has been the practice;* or, by an applicant—by a Pursuer for example; or, by or for some other party in the suit; and thereupon either that same fictitious ordinance has been adopted and acted upon by the judge, or some other has been feigned by him, and acted upon, as aforesaid.
Art. 4. By the Registrar of a judicatory, understand a functionary, to whose functions exercise is given, by his committing, or causing to be committed, to writing, such discourses (they being relevant and material to the purpose) as are uttered, in the judicatory, by or in consequence of an application therein, by any person, made by word of mouth; as also by his securing and keeping for public use, every written or other instrument, or say document therein delivered, for the purpose of its serving in the character of evidence: as also by his committing, or causing to be committed, to writing, statements expressive of whatever relevant and material acts, positive or negative, of a nature to influence the termination given to such application, as happen to have been, by any person, performed: including, upon occasion, any external signs, from which the inward state of mind of the person in question appears to have received expression: such as—tone of voice, change of colour, configuration of the lineaments of the face, gesture and deportment.
Art. 5. By a Government Advocate, understand a functionary, to whose functions exercise is given, by his acting as the Substitute, or say Representative of the Government to the purpose in question, on the occasion of a suit, in which the Government is a party, whether it be on the Pursuer’s or on the Defendant’s side: or any other judicial case in which the Government is concerned in point of interest.
Art. 6. By an Eleemosynary Advocate, understand a functionary, to whose functions exercise is given, by his acting as Assistant, concomitant or substitute, or say Representative to any individual, in so far as such individual, being, or being about to be, or having, or being about to have need to be, a party in a suit, is in a state of relative helplessness: being, to a greater or less degree, by infirmity, bodily or mental, incapacitated from acting by himself with adequate effect; and being, at the same time, unable to procure gratuitously for the purpose in question, adequate assistance; and also, by relative indigence, incapacitated from obtaining adequate assistance, as above, together with such evidence favourable to his side as the nature of the individual suit happens to afford. For other arrangements made for the relief of such relative helplessness, see Section 13, Justice for the Helpless.
Enactive. Expositive. Ratiocinative.
Art. 7. By Quasi-jurors, collectively termed a Quasi-jury, understand an ever changing body of Assessors, convened from the body of the people at large, for the purpose of its serving, by the exercise given to its function, as a check applied to the power of the permanent judges: which same power, were it not for this and other checks, as per Section 32, Securities for appropriate aptitude, would be altogether arbitrary; enabling its possessors respectively on each occasion to promote their own particular and sinister interests, at the expense of the interest of the community at large, in respect of justice.
By its name, this same judicial body styled a Quasi-jury, bears reference to the judicial body styled in English-bred law, a jury: of which, without possessing the vicious features, it is designed to exercise the beneficial influence.
For the arrangements, relative to this same class of functionaries, see Ch. xvi. Quasi-Jury.
Ministerial judiciary functionaries.
Art. 8. By a Judiciary Messenger, or say Mandate-bearer, understand a functionary, to whose functions exercise is given, by bearing mandates (for whatsoever purpose and of whatsoever tenor) to, as also responses from, persons resident, at the time in question, in any place other than the Justice Chamber. As to Judiciary Messengers, see Ch. xxvii.
Art. 9. By a Judiciary Prehensor, or say for shortness a Prehensor, understand a functionary, to whose functions exercise is given, by application made of physical force, in so far as needful, to the physical possession of any subject matter, of which it is requisite that such possession, indefeasible or defeasible, should be taken, for the purpose of giving execution and effect to a mandate of a judge. Such subject matter may be either a thing or a person: if a thing, either a thing immoveable, or a thing moveable. For the several purposes of such prehension ulterior thereto, see Procedure Code, Ch. xxii. Prehension.
Art. 10. Every person who is fit for acting as a Prehensor, is fit for acting as a Mandate-bearer: but, of persons fit for acting as Mandate-bearers, it is not every one that is fit for acting as a Prehensor. The two functions may come accordingly to be allotted to the same person, or to different persons, as occasion may require.
Art. 11. By a Door-keeper, or say a Janitor, understand a functionary, to whose functions exercise is given, by giving (subject to direction from the judge) entrance into, or exit from, the Justice Chamber, to the several other actors on the judicial theatre; and, so long as they are therein, causing them to occupy their respectively appropriate local situations.
Art. 12. By a Judiciary Guard, or say for shortness a Guard, understand a functionary, to whose functions exercise is given, by occasional application made, of physical force, to the purpose of preserving from injury, while in the Justice Chamber as above, (or thither repairing, or thence departing,) persons and things: and elsewhere than in the judicatory, giving execution and effect to judicial mandates, in which the force of a Prehensor fails of being sufficient.
Art. 13. By a Jailor, or say Prison-keeper, or Incarcerator, understand a functionary, to whose functions exercise is given, by his keeping under confinement within a space enclosed within walls, the bodies of all persons, who by mandate from a judge, or any other person authorized by law so to do, have for this purpose been committed to his charge.
Art. 14. By a Quasi-Lictor* understand a functionary, to whose functions exercise is given, by his inflicting or causing to be inflicted, afflictive corporal punishment: for example by stripes, or temporary confinement of the body, or some part or parts thereof, in a state of uneasiness; as also loss of life, should punishment to this effect be in any case ordained in and by the Penal Code.
Art. 15. By a Vendue-Master,† or say a Venditor, understand a functionary, to whose functions exercise is given, by his causing subject matters of property, moveable or immoveable to be sold for the purpose of operating, by the acquisition of them, in the character of a satisfactive, or, by the loss of them, in the character of a punitive, remedy.
Art. 16. By the generic name Executionalists, may be designated, 1. Jailors, 2. Prehensors, 3. Quasi-Lictors, 4. Vendue-Masters.
Art. 17. By an Appellate Judge, understand a Judge, to whose functions exercise is given, by cognizance taken by him of a suit, at any time after the first day on which it has been submitted to the cognizance of an Immediate Judge: most commonly in consequence of a petition by a party for a decree, by which, if issued and carried into effect, the condition of the parties, or some of them, will be rendered more or less different from that which it would be, if execution and effect were given to the decree from which the appeal is made: that is to say, a decree issued by the Immediate Judge. As to what belongs to Judges Appellate, see Ch. xxii. Appellate Judicatories.
Art. 18. By the Justice Minister, understand a functionary, to whose functions exercise is given, principally by the exercise of the several powers of location, dislocation, and suspension, in relation to the several Judges Immediate and Appellate. As to what belongs to the Justice Minister, see Ch. xxiv.
Art. 19. By a Judicial Inspector, understand a functionary, to whose functions exercise is given, principally by his presence, at the place and time, at which exercise is given to the functions of a Judge, Immediate or Appellate: he, by such his presence applying a check to the power, which, were it not for this and other checks, would be arbitrary in the hands of the said judges: this same inspective function being exercisable, without any act done by the person in question, expressly for this purpose,—his presence there and then, having place for some other purpose. As to what belongs to a Judicial Inspector, see Ch. xvii. Judicial Inspectors.
Enactive. Expositive. Instructional.
Art. 20. By a Local Headman, understand a functionary, who, in each one of the smallest portions of territory styled Bis-Subdistricts, or Tris-Subdistricts, into which, by an all-embracing process of division and subdivision, the territory of the State is divided,—is, of all public functionaries, whose authority is confined within the limits of that same portion of territory, the head. Of the functions allotted to this functionary, some will be seen to belong to the Administrative, the rest to the Judiciary Department. Of those which belong to the Judiciary, the exercise will throughout be in subordination to the authority of the Immediate Judge of the Subdistrict within which the Bis-Subdistrict or Tris-Subdistrict in question is contained. As to the species of functionary thus denominated, see Ch. xxv. Local Headmen.
Art. 21. By a Local Headman’s Registrar, or say a Local Registrar, understand a functionary, by whom, in each Bis-Subdistrict, are exercised, with relation to the proceedings of the Local Headmen, functions the same as those, which by an Immediate Judiciary Registrar are exercised, as per Ch. xxi., with relation to the proceedings of an Immediate Judge; as also divers other functions by which, in so many corresponding forms, written evidence, chiefly of the pre-appointed kind, applicable to various purposes, receives its expression, and is preserved for eventual use. As to pre-appointed evidence, see the Procedure Code, and the Rationale of Evidence. As to the species of functionary thus denominated, see Ch. xxvi. Local Registrars.
Art. 22. In case of need, for giving effect to the mandate of a judge, all persons, on requisition from him emaning, are bound to act as Ministerial Judiciary functionariesoccasional, in any of the above several capacities: all persons, and in particular all Preventive service functionaries, all Army functionaries, and all Navy functionaries. As to this, see Section 11, Judges’ Sedative function; and Section 12, Judges’ Aid-compelling function.
Art. 23. So likewise, of their own motion and without waiting for any such mandate as per Art. 22, persons are, in certain cases, permitted, and in certain cases even bound, to act in those several capacities, or some of them, for the purpose of giving execution and effect to the law: to wit, on the presumption, that, had the occasion come to the knowledge of the judge,—a mandate, to the effect in question, would, by him, have been issued. For a specification of these cases, together with the reasons for the institution of this power in the several cases, see the Penal, Non-penal, and Procedure Codes: and see below, Section 11, Judges’ Sedative function, and Section 12, Judges’ Aid-compelling function.
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.
In contradistinction to these occasional, the foregoing may be styled permanent Judiciary functionaries.
Art. 25. Note, that, to an extent more or less considerable,—with great advantage, in respect of frugality as well as certainty of intended effect, may be united the functions of Judiciary Mandate-bearer and Letter-post bearer: among the functionaries subordinate to the Interior Communication Minister, those acting in the capacity of Letter-post bearers, being, for this purpose, and to the extent thereof, rendered subject to the direction of the judge.*
Art. 1. In every Subdistrict is an Immediate Judicatory, with a correspondent establishment of functionaries, Magisterial and Ministerial, as per Section 3.
Art. 2. In every District is an Appellate Judicatory; with its correspondent establishment, as per Art. 1.
Art. 3. The Immediate Judicatories, and they alone, have cognizance of suits in the first instance. The Appellate, and they alone, have cognizance of such suits and such suits alone, as, by Appeal or Quasi-Appeal from a party, on one or other side, come before them from the Immediate Judicatories.
Art. 4. By Quasi-Appeal, understand an application, which, without the name, has the effect of Appeal. See Ch. xxii. Appellate Judicatories; and Procedure Code, Ch. xxviii. Appeal and Quasi-Appeal.
Art. 5. Subordinate in some sort to the Justice Minister, are as well the Appellate as the Immediate Judicatories. For what concerns this functionary, see Ch. xxiv. Justice Minister.
Art. 6. Question 1. Why, in any case, employ as many as two grades of Judicatories?
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.
Art. 7. Question 2. Why not more than two?
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!*
Art. 8. Question 3. Why thus in every sort of suit?
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.
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.
Number in a Judicatory.
Art. 1. Exceptions excepted, in no Judicatory number of seats more than one. As in an Immediate Judicatory, so in an Appellate.
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.
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.
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.
3. For military suits. See Ch. x. Section 13.
Art. 5. From any addition to number one in a Judicatory, the only beneficial effect which can be expected with relation to the ends of judicature, are those of a check to misconduct, and in particular to misconduct in those shapes in which it is the result of deficiency in respect of appropriate moral aptitude on the part of the Judge, first constituted; but against any such deficiency, other and ample securities are provided in abundance. See Section 32.
Art. 6. As to this check, weak and inefficient will it be seen to be. By opposition to his colleague—the Judge whose location is the result of the first choice, by opposition to the will of this his superior, the inferior might lose the whole comfort of the official part of his life: by acquiescence no less does he suffer in any shape. No greater thought than what to him appears necessary to save himself from positive censure at the hands of Superordinates, and from being regarded by them as a cypher, will be the part taken by him, in the business.
Art. 7. From the efficiency of the check thus applied to misconduct through moral inaptitude on the part of the first chosen Judge, as also from the value of any addition capable of being made to his appropriate intellectual aptitude, a cause of defalcation may be seen by that produced in the defalcation made from his own intellectual and active aptitude, by the torpor produced for want of adequate motives for exertion as above.
Art. 8. In this way it is that when two Judges are placed in the same Judicatory with the same powers, appropriate aptitude in its several branches, in respect of each, is diminished by the coexistence of the other.
Art. 9. By the allotment of a number greater than needful in each Judicatory, or in a considerable number of Judicatories, the ends of justice will be contravened in another way, through the medium of the expense: to wit, by producing, to the injury of a greater or less proportion of the members of the community, the effect of a denial of justice, and to a yet greater proportion that of increase of delay, vexation, and expense. For denial of justice is the effect, in so far as, by the length of journeys to and from the Judicatory, with the addition of the intervening demurrage, expense to an amount greater than can be defrayed, is imposed upon suitors or necessary witnesses: and the greater the length of those same journeys and demurrage, the greater is the amount of whatsoever expense is on that account actually incurred. Suppose now a set of judicatories instituted, in such number as shall be sufficient, but not more than sufficient, to secure the community against all denial of justice from this cause: from this aggregate, deduct any number, how small soever, denial of justice in a proportionable degree has place. But scarcely in any country is the aggregate number of judicatories, so great as altogether to exclude denial of justice from this cause: the actual number being reduced below the relatively requisite number by the difficulty of providing for the expense. Suppose six hundred, the greatest number of judicatories, for the necessary expense of which provision can be afforded, and suppose this number but barely sufficient to prevent as above, the denial of justice: put an additional judge, though it be but in one of the whole number of judicatories, you make a defalcation of one from the total number of judicatories, and thereby a proportionable addition to the length of journeys and demurrage, in the instance of at least one judicatory; and to a correspondent amount you produce denial of justice, together with increase of delay, vexation and expense, as above. But for whatever reason you make such addition of one Judge in any one Judicatory, for the same reason should you make that same addition in every other Judicatory. Place then in each Judicatory two Judges, instead of one Judge, you reduce the total number of judicatories to three hundred, instead of six hundred, the number requisite to prevent denial of justice: place in each Judicatory three Judges, you reduce it to two hundred, and so on: producing by every such addition made to the number of Judges in each Judicatory, a correspondent unavoidable addition to denial of justice, together with still greater addition to delay, vexation, and expense.
Art. 10. Only by a still more abundantly productive cause, namely law taxes and law fees, official and professional, are these effects of supernumerariousness of Judges, in the production of denial of justice, together with aggravation of delay, vexation, and expense, concealed from general observation.
Art. 11. If, of two Judges, either has, by means of corruption, or sympathy, or antipathy towards this or that individual, a sinister interest which will be promoted by delay,—he has it in his power, not only to produce it to an indefinite extent, but to produce it, without scandal, by pretending doubts; and while in this way promoting the sinister interest, he may be acquiring the reputation of præter-ordinary moral aptitude, on the score of præter-anxiety to judge aright.
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.*
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.
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.
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.
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.
Fields of Service.
Art. 1. To each Judicatory belongs its local and its logical field of service.
Art. 2. Of the local or geographical field of the Judge’s jurisdiction, the established limits are determined by those of the several contiguous Judicatories.
Art. 3. For this purpose, the whole territory of the State is divided into immediate judicial districts.
Art. 4. By the immediate judicial districts, understand the local fields of territory of the immediate Judicatories.
Art. 5. Of the judiciary subdistricts the dimensions, and consequently the number of each in the whole territory of the State, will be thus determined. Conceive the whole surface of the territory divided into portions as nearly equal as may be:—form, as near to that of a square as the oblate spheroidical figure of the earth’s surface admits. Conceive the seat of the principal justice chamber, to be in a town, occupying the middle of the square: in such sort, that from the spot the most remote from the justice chamber, a grown person, in a state of ordinary health and strength, will be able to travel on foot, from his or her place of residence to and from the justice chamber in the course of any day of 24 hours, without sleeping elsewhere than at home: an interval of—say six hours—being left for the performance of the judicial service.
Diameter of each square say 24 miles.
Length of the radius say 12 miles.
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?
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.
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.
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.
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.
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.
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.
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.
Art. 13. Why, with the exceptions above-mentioned, render the logical fields of all these Judicatories all-comprehensive?
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.)
Intercommunity of Judicial Service.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Art. 16. This intercommunity, why instituted?
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.
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?
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.
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.
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.
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.
Functions common to Judges.
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.
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.
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.
6. In relation to states of things, ordinances, and arrangements, the melioration-suggestive.
Art. 4. By a function exercisable as above by a Judge alone, understand the judicative, or say appropriately executive function, by the exercise of which, by means of the elementary functions therein contained, (as per Section 9, Elementary functions,) in pursuance of application made to him, for the commencement of a suit or otherwise, mandates and decrees are issued, for the purpose of giving execution and effect to this or that ordinance of the Legislature, or of this or that Sublegislature: that is to say in so far as contestation has place, whether as to the question of law, or as to the question of facts; any such contestation excepted, as may have place in any subdepartment, as between subordinate and superordinate, in that same subdepartment, in relation to the characteristic business of such subdepartment: as to which, see Ch. ix. Ministers collectively; Section 19, Subordinates; Section 20, Insubordination obviated; Section 21, Oppression obviated; Section 22, Extortion obviated; Section 23, Peculation obviated.
Art. 5. Purely self exercised, or say exercised without the instrumentality of any other person—and exercised by the instrumentality of other persons, namely the several subordinates in the Judiciary Department;—into these two classes may be divided the aggregate composed of the distinctive functions of a Judge.
Art. 6. Purely self-exercised is the Judge’s opinative function: as to which, see Section 9, Judges’ Elementary functions.
Art. 7. By the Judge’s transmissive function, understand that, to which exercise is given by the intervention of some subordinate functionary, by whose instrumentality the locomotion of the subject matter sent, or say transmitted, whether thing or person, is produced.
Art. 8. Strictly speaking, this same function (the transmissive) does not belong to the class of distinctive functions: exercise being necessarily given to it by all the several functionaries belonging to the Administrative Department, as above. But, so it is—that the things and persons which constitute the subject matters of the exercise given to it, are respectively, in the case of each subdepartment belonging to that department, a different class of things and persons, according to the nature of the business of each such subdepartment: whereas, of the exercise given to this function in the case of a Judge, the subject matters are—all things, and all persons, nearly, if not entirely, without exception: which considered—on the part of the Legislator accordingly, particular care is requisite in marking out the limits, by which the exercise given to it, is circumscribed.
Art. 9. In every instance, in which exercise is given to the transmissive function, so far as it is productive of its intended effect, a correspondent function, to which exercise is given, with reference to the same subject matter, is the acceptive; and with the intervention of the like intermediate and subordinate functionaries, to this function also, in relation to those same subject matters, may exercise be given by a Judge.
Art. 10. If, of the subject matter in question, transmission is considered, as having, on any anterior occasion been made, the function, to which exercise is given by the succeeding transmission, may be styled the retro-transmissive: and so, in the case of acception and retro-acception.
Art. 11. According to the relative situation of the functionary, transmitting or say sending, (relation had to the functionary sent to,) transmission will be either à suprà, ab infrà, or ex æquo: and so in regard to acceptance. Of these modifications, the à suprà transmission, is the one most essential, not to say the only one which is absolutely and independently essential, to the situation of a Judge.
Art. 12. As to the faculties, to which, in his intercourse with another functionary, or with any other person, application is made by a Judge,—they are either the physical or say corporeal; or the psychological or say mental: the mental faculties again, are either the intellectual, or the volitional. A communication made by a Judge à suprà, acting as such, is, if applied to the volitional faculty of a functionary, or any other person, styled a mandate; which may be either jussive, or inhibitive, or say prohibitive: jussive, in so far as the act commanded to be exercised is a positive act; inhibitive or say prohibitive, in so far as it is a negative act, consisting in abstinence, from the performance of some positive act.
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.
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.
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.
Judges, &c., Elementary Functions.
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.
14. Incidentally-informative: exercised by information given to the various persons—whether functionaries or persons at large—to whose minds the exercise proper to be given to the several functions, decretive, mandative, and requisitive, as above, requires that the information should be made present.
Art. 2. Note, as to the inspective function. In so far as the subject matter of it is a person, considered in respect of his conduct, in particular in respect of his conduct in relation to his office,—exercised in a more especial manner is this function in relation to the Registrar, he being the officer, by whom, or under whose direction, permanent account is given of every discourse uttered, and every other act exercised, by the several actors on the judicial theatre: as to whom, see Section 2.
Art. 3. Under the inspective function, is included what may be termed the quasi-inspective: understand thereby, the function to which exercise is given, in so far as it is by a sense, other than that of sight, that the perception and correspondent information is obtained.
Art. 4. A mode of the inspective function, is the visitative: exercised, by exercise given to the inspective function, in so far as, on the occasion of such exercise, change of place is employed on the part of the judge.
Art. 5. Principal and subsidiary—relation had to relative time, such are the modifications, of which the decretive function, considered in respect of both its branches taken together—namely, the opinatively-decretive, and the imperatively-decretive, is susceptible.
Art. 6. By the principal-decretive function, understand that which has place, in every case, in which, by the act of the judge, execution and effect is given to the article or articles in question belonging, as above, to the main body of the law; and which, being commonly the last which the judge has need to exercise, may, on that consideration, be denominated the ultimately-decretive function.
Art. 7. By the subsidiary-decretive functions, understand those to which exercise is given or not given, according as the need thereof has place or not: of which need, the existence will depend on the individual circumstances of each individual suit.
Art. 8. 1. Introductory, or say interlocutory.—2. Supplementary, or say post-decretory: into these, may be distinguished the subsidiary-decretive functions, as above.
Art. 9. By the introductorily-decretive, or say the interlocutorily-decretive function, understand that, of the exercise of which, in some cases, the need has place, antecedently to the time, at which the proceedings are ripe for exercise to be given to the ultimately-decretive function, as above.
Art. 10. By the supplementarily, or say post-decretorily-decretive function, understand that, of the exercise of which, in some cases, the need has place, subsequently to the issuing of that sort of decree, which, in most cases, being the only one necessary, is, on that account, styled, as above, the ultimate.
Art. 11. Note, that of subsidiary decrees, more than one of both sorts, as well interlocutory as supplemental, need may incidentally have place.
Art. 12. Note, that, in a case, in which use is made of the assistance of a body of men, exercising functions in some sort coinciding with those of a jury, as at present in use, (as to which, see Ch. xvi. Quasi-jury,) it will readily be conceived and admitted—that, by such jury, six of the first seven of the above functions—to wit, 1. the auditive; 2. the lective; 3. the inspective; 4. the interrogative, orally exercised; 5. the commentative, (the interrogative, epistolarily exercised being omitted,) and 6. the ratiocinative, may with propriety be made exercisable. As to the imperatively-decretive, or say ultimately-mandative, on the principles of this code, this function is, for the sake of responsibility, cast, entire, upon the judge: for his due exercise of it, trust being given to the force of the securities here provided, for appropriate aptitude in all points, and thence against misconduct in this his situation: as to which, see Section 32, Judges’ Securities, &c.
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.
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.
Judges’ Self-Suppletive Function.
Enactive. Expositive. Ratiocinative.
Art. 1. Lest the business of the office should at any time, though it were but for a day, be at a stand, to every Judge Immediate belongs the power of self-supply, with the obligation of keeping it in exercise. Exercised is this power, by the location of an at-all-times dislocable Depute.
Art. 2. By a Depute, understand in this case, a functionary who, being thus located and dislocable, exercises, on the occasions on which the business might otherwise be at a stand, the functions belonging to the office, with certain exceptions excepted, which are as follow:
Art. 3. Exception 1. To a Judge Depute belongs not the power, given by Ch. vi. Legislature, Section 2, to the Judge Principal: namely that of representing an act of the Legislature as being anti-constitutional.
Art. 4. Exception 2. Nor the power of locating subordinate functionaries, as per Section 8, Functions common to Judges, except in case of urgent need, to the senior in service, on the death of the Judge Principal, and for a time ending with the location of a successor to such Judge Principal.
Art. 5. Exception 3. Nor the power of dislocating any such functionary, except in case of urgent need; and, for a time ending with the location of a successor to such Judge Principal.
Art. 6. Of occasions on which, but for the existence of a Depute, the business of the office would be at a stand, examples are the following:—
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.
3. Vacancy of the Office of Judge Principal.
Art. 7. Exceptions excepted, as per Arts. 2, 3, 4, 5, to every branch of the service of the Principal, does the power of the Depute extend; both fields of service included—logical as well as local; as to which see Section 6, Fields of Service.
Art. 8. Punitionally, as well as compensationally, and dislocationally,—for the acts of the Depute is the Principal,—responsible. By acceptance of the office, not simply for performance, but for apt and complete performance, of the functions, does he contract: irresponsible, he might safely commit breach of trust in any shape, by the instrumentality of any person consenting to subject himself to the risk.
Art. 9. By punitionally responsible, understand responsible to the purpose of being subjected to punishment; that is to say to sufferance under the name of punishment: and this, in some cases, over and above the sufferance produced by the exaction of compensation; in other cases in lieu of the sufferance produced by such exaction; namely in those cases in which compensation cannot have place: for example, where there is no individual specially wronged: and so as to compensationally and dislocationally.
Art. 10. Within [NA] days after his own location, a Judge Principal is expected to make such location as per Art. 1., and thereafter, immediately upon the dislocation of any such Depute, to locate a succeeding one.
Art. 11. The instrument of location, with the year, month, and day of the month, will be signed by the Principal; and, in token of acceptance, by the Depute.
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.
5. Delivered to, and kept by the Locatee, one.
Art. 13. In case of emergency,—created, for example, by sudden calamity or hostility,—lest time for acceptance be wanting, a Judge Immediate, may, by appropriate instruments, constitute Deputes occasional, in any number, without any such acceptance: a second, to serve in default of the first; a third, to serve in default of the first and second; and so on. But only in case of emergency will he execute any such instrument: and, on his responsibility, so soon as the emergency has ceased, he will cancel the instrument, having for that purpose called it in.
Art. 14. Locable, in the situation of Judge-depute, is any person whatsoever: his locator, the Judge Principal, being for such his depute responsible, as per Arts. 8 and 9.
Art. 15. Dislocable, or suspendible, at any time, is the Judge Depute by his Principal: so likewise by any of the authorities, by which the Principal is dislocable, as per Section 30, Dislocable how; and this—without judicial forms, such as those made requisite in and by Ch. ix. Ministers collectively, Section 21, Oppression obviated.
Art. 16. Possessed of this same self-suppletive function are—not only the judges but the several other magisterial functionaries in the judicial department, as per Section 3, Judiciary Functionaries, and the several ministerial functionaries, subordinate respectively to those same magisterial functionaries.
Art. 17. For the beneficial effects resulting from the allottment of this function, to the functionaries belonging to the judicial department, and for the proof that no ground has place for any such apprehension as that of a deficiency, in the number of apt persons ready and willing to serve in the situation of deputes, as above, see Ch. ix. Ministers collectively, Section 6, Self-suppletive function, Arts. 12, 13: the reasons which apply to the administrational department applying also to the judiciary.
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.
24. Of appropriate active aptitude likewise,—(the difficulties attached to judge-made law and technical procedure not having place under this Code,) a moderate—a comparatively small quantity—will, in this official situation, suffice. In the profession of an advocate, it is, even under this system, of prime importance; that is to say, to each individual client.
Judges’ Sedative Function.
Art. 1. To the Judge in each Judicatory belongs the sedative function: Sedative, or say Disturbance-suppressive, relation had to the business of the judicial theatre.
Art. 2. By the sedative function, understand that which has for its object the securing the judicative function against disturbance; parties against useless delay; and actors on the judicial theatre, against needless vexation and annoyance.*
Art. 3. In the exercise of this function, power is given to the judge, in case of necessity, to cause eliminate out of the judicial theatre, any actor, by whose misbehaviour any such disturbance is produced.
Art. 4. So, in case of necessity, whether for terminating the offence, or preventing the repetition of it, by the same offender, or by others, imprisonment, namely, for a time limited in the imperative decree or sentence.
Art. 5. So, in lieu of imprisonment, or at the expiration of the term appointed for imprisonment, obligation to enter into a written engagement for abstaining from the like offences, for a term limited: with or without a bondsman or bondsmen, who engage eventually to pay to the use of the public, money, to the extent of a sum specified, in the event of his subsequently committing the like offence.
Art. 6. So, in case of necessity, for the termination of noisome clamour, either where the continued attendance of the offender is needed; or for example’s sake,—in lieu of elimination, gagging. For the instrument to be employed, and the mode of applying it, see Section 33, Judiciary apparatus.
Art. 7. So, in case of necessity, for termination or prevention of dangerous or noisome action, pinioning or booting, or both, as the case may require: that is to say, where the continued attendance of the offender is still needed in the Justice Chamber, or for example’s sake.
Art. 8. By pinioning, understand confining the arms by means of the instrument applied to persons insane under the denomination of the strait waistcoat.
Art. 9. By booting, understand the confining the lower extremities by means and within the limits of one and the same boot; in both cases, without bodily uneasiness, other than the least which is necessary to the production of the effect.
Art. 10. So, in case of necessity, for prevention of escape, the strait petticoat.
Art. 11. By the strait petticoat, understand an instrument having for its object the applying to the action of walking any requisite degree of retardation.*
Art. 12. For remedy, in case of alleged abuse of these same powers, see Section 18, Incidental Complaint-Book.
Art. 13. Wheresoever he goes, whether it be on regular out-door-duty, as per Ch. xiii. Section 2, or incidentally, for the purpose of applying to any individually-apprehended offence, a preventive, or to any chronical offence, a suppressive remedy, the Judge carries with him, the power of giving exercise to the sedative function, in the several modes in this section mentioned.
Art. 14. Whatsoever be the branch of service, whatsoever the office, whatsoever the nature of the service, whatsoever the condition of the functionary,—indispensable is the necessity of his having in hand sedative power, adequate to the purpose of securing against disturbance, at the hands of all persons whatsoever, the function he is occupied in the exercise of: persons in situations superordinate to his own, and at the same time possessed of directive power with relation to his own, alone excepted. If, in contemplation of lowness of grade, and consequent deficiency in respect of appropriate aptitude, there be in any other department in the Judiciary, any description of functionaries, to whom it is not thought advisable to intrust this power,—it will rest with the Legislature to search them out, and by apt and adequate description, to render them in this respect effectually distinguishable from all others.
Judges’ Aid-compelling Function.
Art. 1. To this function exercise is given, when, for giving execution and effect to any Legislative ordinance through the medium of the judicial authority, the physical power of the ministerial subordinate of the judicatory, being insufficient, or not at hand, a demand has place for such other assistance as the state of persons and things furnishes.
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.
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.
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.
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.
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.
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.
4. Where he or she is restrained by timidity or say mental weakness.
Art. 7. For subduing force, males will naturally, on this occasion, be preferred to females. But, rather than justice should fail, females may be called in; when a female is the person on whom execution is to be given to the law, a person of the same sex should, if circumstances permit, be employed, in preference to a person of the male sex, as where, in the exercise of the scrutative function, the body is to be searched, for subject matters, instruments, or evidences of delinquency.
Art. 8. Among functionaries, those belonging to the Preventive service will, for this purpose, be in general the most appropriate objects of choice.
Art. 9. Where, of a man or body of men, belonging to the stipendiary, or say professional branch of the Defensive Force Establishment, the assistance is called in,—the Judge, or other Judiciary functionary, will, if time permits, transmit in writing to the commander, under whose immediate orders they are, an appropriate instrument, styled a mandate in aid. In this instrument, information will be given of the nature of the exigency, and of the temporary command so taken, of the man or men so impressed: this, with or without a mandate directing the commander himself to repair to the spot, and afford his assistance.
Art. 10. On receipt of such instrument, or information to that effect, nothing but a well-grounded apprehension of preponderant evil, in some determinate and assigned shape, will justify non-compliance: of such apprehended evil, he will in this case forthwith give intimation, also in writing, stating the facts, by the consideration of which the apprehension has been produced.
Art. 11. Examples of grounds of such non-compliance, are as follow:—
1. Hostile aggression, in the quarter in question, from a foreign enemy, actual, or supposed imminent.
2. Peremptory order, from a superordinate, grounded, as supposed, on similar considerations.
Art. 12. In case of non-compliance, if excuse be not given, the functionary by whom the mandate has been received will be responsible: if given, so is he for the adequacy, as well as verity of the excuse: and in this responsibility may be included eventual obligation to make compensation, at his own expense, for all damage thereby produced.
Art. 13. Not only to a Judge, but to any other Judiciary functionary, ministerial as well as magisterial, belongs the same function, with the power attached: he acting in the endeavour to give execution to the law, with or even without any special order, concomitant or antecedent from the Judge.
Art. 14. Need of the exercise of this function will still more frequently have place, without, than with, the cognizance of a Judge. This considered,—not only by a Judge, but by any other Judiciary functionary, ministerial as well as magisterial, may the function, with the power attached, be exercised.
Art. 15. Help to the law! is an appropriate formulary of invitation, by which notification may be given of the purpose for which this power is assumed and exercised: after these words will come, if not known to the party addressed, a statement made, as effectually as circumstances admit of the individual state of things, by which the need has been produced.
Art. 16. In certain cases, not only by a Judicial functionary but by any person of sound mind, may this function, and the power belonging to it, be exercised with preponderant benefit. But, to give particular description to these cases, and to obviate the abuse to which, in such miscellaneous hands, it cannot but stand exposed, belongs to the Penal and Civil Codes.
Justice for the Helpless.
Art. 1. Expense, in a pecuniary, or what comes to the same thing in a quasi-pecuniary, shape, and in particular in the shape of consumption of time, is on every occasion, as on the one side of the suit, so on the other, indispensably necessary to the obtainment of judicial service: and, of this expense, more especially on the part of him in whose instance the disbursement is involuntary, evil is in a proportionable degree an inseparable accompaniment. In some instances, indeed, if no expense over and above what is necessary be employed, so small will be the amount of it, that except in so far as consumption of time imports loss of the means of subsistence, no exertion on the part of the legislator would be advantageously employed in the endeavour to exclude or compensate the expenditure: and thus small may perhaps be found the quantity of it in by far the greatest number of individual instances: and, so far, on his part the only care necessary will be, that of avoiding to cause or permit the natural and necessary expenditure to receive any factitious increase.
Art. 2. But, on the other hand, neither are cases wanting, in which no determinate limit can be set to the magnitude of the natural part of this evil. No limits are there, except those set by the earth’s circumference, to the distance which may have place between the abode of a necessary witness, and the place at which his testimony may with greatest or exclusive propriety, or even by possibility, be delivered: scarcely are there any, even to the number of witnesses, whose testimony may eventually be found material: and, as it is with distance in place, so is it with the quantity of time and the quantity of money that may be necessary for the production of the evidence, or the quantity of money that may be necessary for compensation for loss of time on the part of the witnesses.
Art. 3. Such being, in this respect, the unquestionable state of things, one consequence is—that, without any relief other than such as comes to be afforded by the powers of the Public-Opinion Tribunal, the effect of every factitious addition to this natural evil is—to constitute a graduated system of depredation, and oppression in all other shapes: every rank, which stands superior in the scale of opulence, exercising, by this means, a tyrannical dominion over every other whose place is below it.
Art. 4. As to the evil, in so far as the expense necessary as above, to the support of a just demand or a just defence, is wanting,—it consists of every evil which man is exposed to, either by the want of the protection of the law, or, on failure of satisfactory legal defence, by the power of the law: by it, a correspondent portion, more or less considerable of the whole population of the country, is placed in a state of outlawry.
Art. 5. To provide for the exclusion of tyranny, thus exercisable by means of superiority of opulence, belongs to the Constitutional Code, with no less unquestionable necessity than to provide for the exclusion of the same unjustifiable and misery-producing dominion, when exercised by means of superiority of legal power.
Art. 6. By relative indigence, understand inability to defray the above-mentioned expense. The evil attached to it as above, takes a different shape, according as it is on the Pursuer’s side, or the Defendant’s side, that the indigence has place. On the pursuer’s side, the evil is different, according as the indigence is original or incidental: original, where the effect is to prevent a person who would have entered upon the career of judicial pursuit from doing so;—call this therefore moreover the extra-judicial evil: incidental, when, falling upon a person who is actually engaged in that career, it prevents him from continuing in it: call this the judicial evil: in this last case, to the suffering from the loss of right and remedy, is added the suffering from the impoverishment: especially if, as is so frequently the case, that same impoverishment had the expense of the suit for the sole or principal cause of it.
Art. 7. Of every such act of depredation or oppression thus exercised as above, the legislator, who, whether through design or negligence, omits to apply such remedy as the nature of the case admits of, renders himself thereby an accomplice. What if, to that mass of expense which of itself grows out of the nature of the case, he adds a factitious mass, created by him either directly by his own hands, or what comes to the same thing, indirectly by those of other persons, thus acting under his eyes and orders?
Art. 8. Thus far, as to the mode in which the evil is produced, where the indigence is on the Pursuer’s side. In so far as it is on the Defendant’s side, the law is an instrument of the evil, not merely in a negative, but actually in a positive way. In this case, any person who, finding himself in a state of relative opulence, chooses to take for this purpose a station on the pursuer’s side, is thus, by the power which the legislator and the Judge offer to his hands, enabled to inflict on every person, relatively indigent, whom he has any desire thus to injure, suffering in any shape, in which, against a demand requiring it to be submitted to, (whether on the score of alleged guilt or otherwise,) he is, by want of the necessary pecuniary supply, bereft of the means of making what would be regarded a satisfactory defence. Here, then, is a tyranny, of which the powers of the Legislator and that of the Judge are in a more direct way the instruments.
Art. 9. In this case, the distinction between the original and the incidental evil, as above, has place likewise. In neither case, however, can it be termed extrajudicial: in both cases it is strictly and purely judicial: in both cases it is exclusively of legal and judicial manufacture: by the express ordinance, or, what comes to the same thing, by the tacit allowance of the legislator, the power of the Judge being the very instrument by which the evil is produced.
Art. 10. An exception may appear to be presented by those cases in which for conviction positive proof of delinquency is made necessary, the circumstantial and negative proof afforded by non-appearance or non-defence not being taken for conclusive. But even when positive proof is thus made requisite, the same disastrous consequence may be the foreseen and pre-assured result of relative indigence. In the case of a criminal prosecution, the innocence of the defendant would be made manifest (suppose) by true and conclusive evidence, if produced: but, the production of it cannot be effected without expense, and he has not wherewithal to defray that expense, much less to defray the expense of a prosecution as for perjury, against false witnesses if engaged on the pursuer’s side. In this condition every adversary who is profligate enough to be ready to take advantage of it, beholds in him a victim, to whom escape from destruction is impossible.
Art. 11. Hitherto, under every known Government, the expense, which is the instrument of tyranny in this shape, stands distinguishable into the two above-mentioned branches—the natural and the factitious. The factitious, the respective rulers will extirpate, whensoever it shall have become their pleasure to cease acting as accomplices in every crime: it will stand excluded of course in every code, the arrangements of which are determined by the principle laid down in the present constitutional code.
Art. 12. To the ulterior task of minimizing the natural branch of the evil, a necessary preliminary is—the investigation of the sources from which the expense takes its rise,—the occasions on which, and the purposes for which, the need of it has place.
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.
3. As to such part of it as is thus applied, laying it upon those, in whose instance,—in compensation or part compensation to the public, of which they are a part, for the affliction, thus produced,—the disposition made of it produces, in the way of repression of greater evil, (by the spectacle of that same affliction,) the beneficial effect of punishment.
Art. 14. The operations by which (the quantity of forced expense being given) the affliction is diminished and minimized, are these two: to wit, 1. The imposing the burthen upon the public fund; that is to say, upon the whole community in the aggregate: 2. As between two litigants occupying different stations in the scale of opulence, imposing it in proportions correspondent to the height of their respective situations.
Art. 15. Of any such monies as shall have come to be provided by Government, for the defraying of the natural and necessary portion of the expense of litiscontestation, on both sides—the aggregate mass will compose what may be styled The Equal Justice Fund.
Art. 16. In this fund may be comprised two distinguishable branches: 1. the regular, or say, the principal; 2. the incidental, eventual, or supplemental branch.
Art. 17. I. Regular branch. This will be composed of the produce of pecuniary penalties, imposed for transgression in any shape, by any person whose presence ranks him among the actors on the Judicial theatre, as per Section 2: but more particularly on parties on both sides, in case of transgression in any shape in which it is susceptible of the denomination of an offence against justice: more especially in the case of those transgressions to which the several denominations of wrongful juridical vexation, and juridical falsehood, or say juridical false assertion, are applicable.
Art. 18. i.Wrongful Juridical vexation—its modifications are: 1. Juridical vexation, criminal—accompanied with criminal consciousness, or say, consciousness of wrong: 2. Juridical vexation culpable,—accompanied with culpable inadvertence, thence with temerity, or say with rashness: in this case, not accompanied with actual consciousness of wrong, but carried on in such circumstances, that if accompanied with that sort and degree of care which ought to have been bestowed upon the case, (and may without undue hardship be exacted,) would (it is presumed) have sufficed to prevent the vexatious conduct from taking place. In each of these two shapes wrongful juridical vexation may have place alike on the pursuer’s and on the defendant’s sides.
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.
Art. 20. The expense of remuneration for the service of judicial functionaries, constitutes (it may here be said) a portion of the aggregate expense of a suit: and for this item, it may be observed, no provision is included in the plan of the above-mentioned fund, considered in either of its branches. Only, however, in outside appearance does this portion of the expense belong to any one suit, any more than to another; only in outside appearance are the benefits derived from it, enjoyed by one description of litigants more than by another, or by litigants in the aggregate more than by non-litigants. In fact, of the two classes, in the aggregate mass of benefit derived from the services of this class of functionaries, the class of non-litigants enjoy by much the greatest share; since, whatsoever security they enjoy for their respective possessions, is enjoyed by them altogether free from those drawbacks, which have place in the case of litigants: insomuch, that were the separation possible, equal justice would require, that every litigant, to whose proceedings on the occasion of the suit no blame could be imputed, should be exonerated from his portion of the expense of such remuneration; and the whole burthen of it be cast upon those, by whom their share in the aggregate benefit of this same security is enjoyed, without being subjected to any such afflictive alloy.
To throw upon litigants the whole or any superior share of the burthen of the Judicial Establishment, is no more reconcileable to justice and the greatest happiness principle, than would be the throwing, on the occasion of every war, the whole burthen of the military establishment and military defence upon a thin line of frontier; or the imposing a tax on sickness in each shape: so much for every fit of the rheumatism, so much for every stone extracted or endeavoured to be extracted, in addition to the tax on medicines.—See Protest against Law Taxes, [vol. ii. p. 573 et seq.]
Art. 21. This considered, whatsoever portion of the government receipts is employed in defraying the expense of this remuneration, together with that of the stock employed in the same service, may be denominated by the appellation of the Ordinary Justice Fund: while the portion of those same receipts employed in facilitating the access to justice on the part of the otherwise helpless, may be distinguished from it by the appellation of the Extraordinary Justice Fund.
Art. 22. In the application of punishment on this occasion to the repression of the evils produced by means of a pernicious direction given to the hand of justice, no more reserve need be used than in the application of it to the repression of evil, in the like shape, produced by wrong-doers at large, without the aid of any such irresistible hand. Of the quantum of the pecuniary burthen imposed as yet on this occasion, in all established systems, and with very little of that discrimination, which from the very first might and therefore ought to be made, between the injurer and the injured,—imposed, that is to say, by that part of the expenses called costs of suit, which is purely factitious, a small portion would in all probability be found sufficient, if confined in its application to such wrong-doers, whose delinquency operates in one or other of the shapes just-mentioned.
Art. 23. II. Supplemental branch. This will be composed of such monies, as, in case of deficiency in the regular branch, the government shall have provided from other sources.
Art. 24. To these supplies, to both of which the employment of the coercive power of Government is necessary, may come to be added such as may be afforded by a supplemental and voluntary branch: added to this same Equal Justice Fund.
Art. 25. By the voluntary branch of the Equal Justice Fund, understand the aggregate of such monies, as for this purpose shall have been furnished by voluntary contributions.
Art. 26. In ordinary cases, the two government branches will, it is assumed, suffice: and for these cases any such fund as the voluntary fund would be manifestly needless, and thence of course unproductive. But cases there are, in which, though in a certain point of view supplies would be useful, supplies from the government fund would be inapplicable. Of the government fund, the application must necessarily be lodged in certain official hands. But what will every now and then be happening, is that in the eyes of this or that individual, (in his quality of member of the Public-Opinion Tribunal,) supplies out of this fund having been refused by the appointed public functionaries, the refusal has been ill grounded. So many as there are of these instances, so many are the occasions on which contributions to the Equal Justice Fund may, with more or less assurance, be looked for, from voluntary hands: and by the establishment of this resource a more or less efficient security against partial or otherwise undue refusals will be seen to be afforded.
Art. 27. As to the official hands, to which it will on these occasions belong to apply for, and eventually obtain, allowances out of the public funds,—see Ch. xviii. Government Advocates, Section 7, Money-Requisitive Function: and Ch. xx. Eleemosynary Advocates, Section 4, Money-Requisitive Function.
Art. 28. Of the occasions on which, in the breasts of individuals, the disposition to make such contribution may be expected to be called into action, examples are as follows:—
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.
3. In regard to appeal, the losing party unable to defray the expense, but in the opinion of the public functionaries, the ground for appeal not sufficiently strong to warrant the charging the public with it. For the course here pursued for minimizing the expense of appeal, see Ch. xxii. Appellate Judicatories.
Art. 29. By supplies inappositely allotted to this purpose, evil might be created in such quantity as to outweigh the good resulting from the exclusion of the evil thus endeavoured to be excluded. For the arrangements taken for the obviating of danger from this source, see the Procedure Code. Such would be the evil effect, if for want of sufficient means of repression, mendacious assertion, employed in support of applications for money for the purposes here in question, were permitted to have their designed effect. But, as on other occasions so on this, mendacity is capable of being, in an adequate degree, repressed by appropriate arrangements: and, in the Procedure Code connected with the present Constitutional Code, arrangements of hitherto unexampled efficiency will, it is believed, be found comprised.
Art. 30. As to the provision made of an Eleemosynary Advocate for litigants of this class, the principle, from which the arrangements proposed under this head, and those in Ch. xx. Eleemosynary Advocates, and also in title costs Ch. xx. in the Procedure Code, are derived,—is now for the first time offered to universal notice. It is the same which, in Anno 1791, in the work on the Judicial Establishment, written and printed for the use of France, though not then published in England, gave birth to the just-mentioned proposed official situation, under the not altogether apposite appellation of Defender General.*
Art. 31. In all hitherto established systems of Judicial warfare,—partly through negligence, partly by design, the relatively helpless have in the lump been left without defence: the relatively helpless, that is to say, everywhere the vast majority of the people; although in relation to Judicature, to leave a man without defence, is on the part of government to deny him justice.
Art. 32. Under these same systems, not only have those, who of themselves are destitute of the necessary means of supply for the natural expense of litiscontestation, been left unprovided with those means, but to that same natural expense, factitious expense has in various shapes, and in various degrees of enormity, been added.
Art. 33. Here then is injustice,—injustice in the shape of sinister partiality,—established by express law:—established upon an all-comprehensive scale: injustice to the many, to and for the benefit of the few.
Art. 34. In monarchies, pure and mixed, but most of all in the mixed monarchy of England, oppression in this shape is, manifestly and undeniably, the result of design and system. In the only Representative Democracy as yet fully established, in the Anglo-American United States,—in so far as it still has place, it is the mixed result of design and negligence: design on the part of the lawyer tribe; on the part of non-lawyers, design in some, namely, the richer classes; negligence and ignorance on the part of the rest.
Art. 35. The present proposed Code has, therefore, for its objects, not only the keeping excluded all such factitious expense, but also the providing means for defraying, on every occasion, as far as may be, the natural expense; after having done as much as the nature of the case is found to admit of towards minimizing it.
Art. 36. In every Justice Chamber, let there be kept in a conspicuous situation, accessible to the actors on the judicial theatre, an instrument of appropriate relief, namely, a receptacle provided for the receipt of voluntary contributions, and designated in conspicuous letters by the words, Equal Justice Box.
Art. 37. Additional means of productiveness to the Equal Justice Fund, are these:—i. Instructions from the Legislature to Judges. Instructions to give, in each individual case, (assigned reasons to the contrary excepted,) preference to pecuniary punishment, as compared with punishment in other shapes; saving the preference due to compensation, and satisfaction in other shapes, to individuals wronged. For rules and reasons see Penal Code, title Remedies.
Art. 38. ii. Instructions in like manner to Government Advocates. Instructions to keep watch, in this point of view, over the conduct of litigants; and, as often as delinquency, in any one of the shapes here in question, presents itself as having had place, to call for punishment in this shape, exceptions as above excepted, at the hands of the judge.
Publicity, Recordation, and Publication.
Art. 1. Special demand for secrecy excepted, and that never otherwise than temporary, (of which see the Penal, Civil, and Procedure Codes,) the leading principles of this constitution require, that, for the information of the several constituted authorities,—of every Judicial proceeding, as well while carrying on, as thenceforward, the publicity be maximized. In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate. Where there is no publicity there is no justice.
Art. 2. To the purpose of contemporaneous but evanescent publicity, serves the presence of the several actors on the Judicial Theatre, as enumerated in Section 2, and in particular that of the appointed Judicial visiters, as per Ch. xvii. Judicial Inspectors.
Art. 3. For the purpose of subsequential and indefinitely permanent publicity, a system of registration, to be pursued on all occasions, under a pre-appointed set of heads, will be seen in Ch. xxi. Immediate and Appellate Registrars, and more fully in the Procedure Code attached to the Penal and Civil Codes. As to the principle and the mechanical means, see Ch. viii. Prime Minister, Section 10, Registration System; Section 11, Publication System. See also Ch. ix. Ministers collectively, Section 7, Statistic Function.
Art. 4. For the exclusion of evil in various shapes, exclusion of contemporaneous publicity will, on various occasions, be found necessary. But, in these cases, the light of publicity will be but covered up for a time: it will not be extinguished.
Secret intercourse obviated.
Art. 1. In no private missive, addressed to, or designed to be read, or heard, by a Judge, should any discourse be inserted, tending in any way to influence his conduct as a Judge, on the occasion, or for the purpose, of any individual suit or other application, instituted or contemplated.
Art. 2. Any missive, having for its design or tendency the exercising any such undue influence, the Judge will not fail to make known, at his next sitting, or at the time in Art. 6, herein-after mentioned.
Art. 3. If of such missive, the whole has such design or tendency, he will forthwith communicate it to the Registrar, that it may be read as above in open Judicatory, and the original kept with the Register Books: if only a part or parts, he will communicate to the Registrar every such part, and cause him to make entry of a copy of it.
Art. 4. If after having received any such missive, the Judge omits to give publicity to it, as above,—any person, by whom the same was written, or any person, by whom before or after its having been received by the Judge, it was seen, may upon his responsibility, appear in open Judicatory in the character of an applicant, and put questions to the Judge as to his having received it.
Art. 5. If, in any such missive, there be any portion of discourse, having for its design or tendency the influencing the conduct of the Judge as such, by hope of good, or fear of evil, at the hands of the writer, or any person on whose behalf he thus writes—the writer and every person privy to the intention of its being conveyed to the Judge, will be deemed to have thereby intended and endeavoured to practice corruption on the part of the Judge: and in the character of a conniver, the Judge, unless he makes the receipt of such missive known as above, will be deemed to have participated in the offence.
Art. 6. Periodically, to wit, on the first day of every week, the Judge, at the opening of the Judicatory, will make known every such undue address, as in the course of the preceding week, shall, as above, have been received: together with all such others as, although received, have, in any former week, whether by design or accident, failed to be made known; if no one such has been received, he will make declaration to that effect.
Art. 7. If, with any such design as that of wasting the time of the Judicatory, and thereby producing, to the damage of persons known or unknown, denial or delay of justice,—missives composed of, or containing impertinent matter, be addressed as above to the Judge,—every person, by whom or by whose procurement or instrumentality such missive was written or knowingly conveyed, will be responsible, compensationally, or punitionally, or in both ways, as the case may require, in the same manner as for a personal application having the same sinister purpose.
Art. 8. At the time of such periodical declaration as above, or earlier, the Judge, should any such undue address, as per Art. 6, have been made to him, by word of mouth, or otherwise than in writing, will, in like manner, make the same known, mentioning in each instance the individual addressing, together with all such others as are known, or believed by him to have been present, or otherwise, at the making of the address; and, in so far as the importance of the matter shall have warranted the time and labour necessary, he will be expected to have made a minute of the tenor or purport of the address at the time, or so soon after as convenience would admit.
Art. 1. If, in any Judicatory, Immediate or Appellate, a suit should arise, in which the Judge has a known and acknowledged interest, he will of course transfer the cognizance of it to a Depute, choosing some one, in the choice of whom the parties on both sides are agreed, if any such there be: if not, some Depute originally located by some preceding judge, in preference to any one originally located by himself. If it be in an Immediate Judicatory, the Judicatory it is transferred to, will, for minimization of delay, vexation, and expense, be some of the contiguous Judicatories. But by consent of all parties, the transference may be made to any Judicatory whatsoever. Should it happen that no Depute, not regarded as impartial, can be obtained, the suit will, on the petition of any party, be transferred to another Judge: if it be in an Immediate Judicatory, by the Judge Appellate; if it be in an Appellate Judicatory, by the Justice Minister.
Art. 2. Partiality may, with reference to the person in question, be either favourable or otherwise: in every case it will have had for its internal cause, some interest: if favourable, a self-regarding or sympathetic interest; if adverse, an antipathetic interest. Of a partiality adverse to one side, the effect may be the same as a partiality in favour of the other. In any one of these cases, be the particular cause known or unknown, the existence of some such corruptive cause may, in some cases, be conclusively inferred from its effects.
Art. 3. On the conduct of the Judge the effect may be the same, or nearly the same, whether the seat of the interest be in the Judge’s own breast, or in that of some other individual with whom he is connected by some special tie, whether of self-regarding or sympathetic interest,—for example, a wife, offspring, parent, or other near relation in the direct or collateral line, a patron, a protêgé, or an intimate friend.
Art. 4. If, by exposure to the action of seductive interest in any shape as above, partiality is, by a party on either side of the suit, regarded as liable to have place in the situation of the Judge,—to such party belongs the power of putting to the Judge all apt questions by which the existence or non-existence of such exposure may be established: so also to every other party on both sides. As in an Immediate, so in an Appellate Judicatory.
Art. 5. On this occasion, the Judge removes from the judgment-seat to the seat appointed for that side in favour of which partiality is regarded as liable to have place: at the same time, for the deciding as to the existence of the exposure, the Government Advocate, the Eleemosynary Advocate, and the Registrar, place themselves on the judgment-seat, and constitute a Judicatory, a majority determining the decrees.
Art. 6. If the decision be in affirmance of the exposure, the Judicatory locates some other person for the cognizance of the suit, as per Art. 1, unless, trusting to eventual appeal, all parties concur in a petition that the suit may remain in the cognizance of the Judge notwithstanding: or,—in an Immediate Judicatory a party on one side applies to the Judge Appellate to transfer the cognizance of the suit to the judge of some other. Immediate Judicatory; in an Appellate he applies to the Justice Minister to transfer it to some other Appellate Judicatory.
Art. 7. If, to any such cause of partiality, his situation stands exposed as above,—the Judge will do well to consign, of his own accord, the suit to some Depute, on this special ground: stating at the same time the nature of the situation, and of the temptation to which it stands exposed: and this—whether the Depute be the object of his special choice, or one on whom the cognizance has devolved in virtue of some general rule.
Art. 8. On the occasion of the examination of a Judge by a party as above,—whoever officiates as Judge, will have to consider and inquire whether it may not be productive of material delay, especially if, for counter-evidence to the declaration of the interrogated Judge, extraneous evidence be adduced or tendered; if so, he will thereupon take such measures as may be necessary to prevent predominant evil in consequence of such delay.
Art. 9. Rather than a suit should be heard and determined, though it were only in the first instance, by a Judge suspected of partiality,—if it be a Judge Immediate, the Appellate Judge will therefore, on petition from a party on either side, transfer the cognizance to some other Immediate Judicatory: choosing, by preference, one, if such there be, which all parties concur in preferring; and employing, on the occasion, the facilities afforded, as per Section 7, by intercommunity of judicial service: if it be a Judge Appellate, the Justice Minister, as above.
Art. 10. If, before the termination of an Appeal, the Judge appealed from is constituted Judge of the Appellate Judicatory, in such sort as that a decree could not be passed without his having to sit in judgment on his own acts,—cognizance of the Appeal will have place as follows:—
1. If it has been already assigned to a Depute of the Judge Appellate, it will remain with such Judge Depute.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
5. In the case of a Judge Immediate, representation from his Judge Appellate.
6. In the case of a Judge Appellate, petition from any one of his Judge Immediates.
7. Petition from the Judge himself in case of his desiring to be transferred.
Art. 8. Every such representation and petition will be on grounds assigned, of which mention will be made in the instrument of transference: to wit, the mandate by which the migration is directed: the Judge having liberty and opportunity to contest the transference.
Art. 9. Migration Mandate. This is the denomination given to the instrument of transference, by which the Judicatory to which the Judge to whom it is addressed, is to migrate, is declared. In it, the ground of the transference in the mind of the Minister—the considerations whereby he has been disposed to accede to the request, are also declared. In the first instance, it will only be provisional: liberty and sufficient time for contestation will be allowed to the Judge.
Art. 10. In pursuance of the object of this system, as per Art. 1, it will be among the cares of the Justice Minister, that, on the occasion of each migration between the territory from which, and the territory to which, a Judge is transferred, there be, in so far as the system of territorial division permits, one such territory at least intervening: in the case of the Immediate Judge one sub-district: in the case of the Appellate Judge one district.
Art. 11. On the other hand, for obviating needless delay, vexation, and expense, on the occasion of the removal, he will avoid giving unnecessary increase to evil in those several shapes, by any needless magnitude of distance between the territory from which, and the territory to which, the migration is made to take place.
Art. 12. In the case of a functionary transferred as above for the first time, his commoration time will of course be reckoned from the day of his location in such his office: in the case of a functionary transferred for any other than the first time, it will be reckoned from the time of the last of his migrations, if more than one, or if not more than one, from that one.
Art. 13. In determining the length of commoration, which, upon the whole, it may be advisable to allow, and the distance which it may be advisable to require, between the place of a former and that of a subsequent commoration,—consideration, it is evident, will require to be had of magnitude, in respect of territory, population, and Judges’ remuneration. The larger the territories in proportion to the density of the population, the less the danger from length of commoration, and the greater the inconvenience attendant on removals.
Art. 14. Among the checks meant to be applied to the conduct of every Judge, is that which may eventually be applied by the observation made thereof by his comrades in office—to wit, the Government Advocate, and the Eleemosynary Advocate, in conjunction with those other constant inspectors, provided in and by Ch. xvii. under the denomination of Judicial Inspectors. Lest, by a too long continued association, the efficiency of this check be impaired,—it will be among the cares of the Legislature so to order the migration that no Government Advocate or Eleemosynary Advocate shall, by commoration or transference, be located in the same Judicatory with the same Judge, for any greater length of time than the maximum of his commoration time, as per Art. 4.
Enactive. Instructional. Ratiocinative.
Art. 15. For carrying into effect this design with the greater convenience, the Justice Minister may assign to any number of Government Advocates and Eleemosynary Advocates, a shorter commoration than that, which, in Art. 4, is mentioned as the minimum. But on any such occasion, lest inferences unfavourable to the reputation of any of the persons concerned should be deduced, he may do well to cause to be determined by lot the places to which the transferences shall respectively be performed.
Art. 16. Annual Judicial Service Calendar. This denomination is given to the instrument by which, in pursuance of the migration system, the Justice Minister makes declaration of the Judges, Government Advocates, and Eleemosynary Advocates, who, in the several Judicatories, Immediate and Appellate, will have to serve during the coming solar year.
Art. 17. [NA] days antecedent to the general and annual migration day of the ensuing solar year,—the Justice Minister will cause an exemplar of the judicial service Calendar for that year, to be transmitted in print to each of the several judicatories, Immediate and Appellate; in such sort that, in that judicatory, which is the most distant from the seat of Government, it shall have been received. [NA] days before the day on which, in and for that same judicatory, the migration journey is to take place.
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.
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.
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.
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.
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.
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.
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.
10. If it were without any such application that the transference was made, mention will be made of the considerations on which, in the mind of the Justice Minister, it was grounded.
Art. 25. In the Migration System the Registrar is not comprised.
Art. 26. 1. The reasons which apply to the situation of the Judge do not apply to the situation of the Registrar. The decision is in every case that of the judge only. The acts of the Registrar being subject to his direction, no decision of his is in any direct way, or to a certainty in any case, determined by the will of the Registrar.
2. It is of importance that the business of registration be, as far as conveniently may be, carried on in one uninterrupted stream, on one uniform plan, by one and the same locally experienced hand.
3. Unless by undue influence, a document of this sort is not liable to be vitiated by him to whose keeping it is consigned, otherwise than by some flagrant and never probable crime.
Art. 27. But, forasmuch as under favour of the talent acquired by experience, an old established Registrar might possibly be capable of exercising with sinister effect an influence on the decisions of a succession of judges,—it might perhaps be advisable that the power of transference for specially alleged cause, should, in the case of this situation, also be given to the Justice Minister. A power to this effect would not be likely to be frequently called into exercise; still less to be abused: the bare apprehension of it would be sufficient to secure the effect desired.
Art. 28. In the several cases of the Government Advocate and the Eleemosynary Advocate,—forasmuch as, scarcely on any occasion will the decision of the Judge depend directly and purely upon any act of either of these functionaries, migration is accordingly in their several situations also of less importance than in that of the Judge. As to any sinister connexion between him and them, or either of them, it might perhaps therefore be sufficiently obviated by his migration alone, they respectively continuing stationary in the same judicatory for a longer commoration time, or even during life.
Art. 29. As the system of stated migration cannot, if adopted, take effect till at least three years after the institution of a judicial establishment upon any such plan as that here proposed, there will necessarily be that time at least for the making of the preparatory arrangements. But if, even though not determined upon, it were contemplated—it might be proper, in each instrument of location, to make mention of it as capable of being put in force and acted upon.
Art. 30. As to incidental transference, the utility of it will stand upon its own grounds, whatsoever be the determination in regard to stated migration.
Art. 31. All this while, an inconvenience inseparable from the migration system—nor that an inconsiderable one—is that which will, to a certain extent, be necessitated by the concomitant transference of one and the same suit from one Judge to another. The evil consequence, is—that to the succeeding Judge any orally-delivered evidence and arguments that had been presented, in that immediate way and best shape to his predecessor, cannot, without dilatory and expensive repetition, be presented in that same best shape, along with those presented in that same way to himself.
Art. 32. But, if ever so considerable, never can it constitute a ground of objection in the mouth of any partisan of any as yet existing judicial establishment, and correspondent system of judicial procedure: under no such system, does the lessening of it appear to have in any instance been in any degree an object of endeavour or so much as desire.
Art. 33. On the other hand, in the here proposed judiciary system, and the Procedure Code connected with it, provision is, in divers ways, made for the minimization of this same inconvenience.
Art. 34. By the all-pervading practice of minuting down, as per Section 14, all the evidence which, in an oral form, ever comes to the ears of a judge, together with the arguments in so far as shall be thought material; and this in a mode the expense of which is minimized, as per Ch. viii. Prime Minister, Section 10, Registration system,—all evidence delivered in a Judicatory is in the best shape possible delivered to the Judge that hears it, and to every succeeding Judge in the next best shape.
Art. 35. By the institution of Judge Deputes, as per Ch. xiv. xv., means are afforded for minimizing the number of the instances in which such transference will have to take place. In the case of every stated migration, the term having been long foreseen,—it will be among the cares of the migrating judge to avoid, as much as possible, the giving in his own person, commencement to suits, to which he is not in this same way likely to give termination. It will be an object with him to clear his hands, as far as may be, of all those to which he has given commencement, turning over fresh ones, as they occur, to his deputes.
Art. 1. Incidental is the attribute given to the species of complaint in question, in contradistinction to any which would be of such a nature as to form the matter of an appeal: i. e. a complaint, calling for a decision opposite, in the whole or in part, to a decision pronounced by the judge appealed from.
Art. 2. Examples are as follows:—
1. Vituperative language employed by a judge in speaking to, or of, a party, or an extraneous witness.
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.
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.
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.
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.
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:—
Art. 7. If it be in an Appellate Judicatory—
Art. 8. So, if, on the part of any other actor on the Judicial Theatre, as per Section 2, any such transgression having place, the Judge, on being apprized thereof, fails to administer adequate satisfaction to the party aggrieved: adding, if the case requires it, ulterior punishment,—in this case to the other exemplars disposed of, as per Art. 6, will be added one delivered to the alleged offender complained of. In every such wrong, which, after witnessing, he leaves unredressed, without having done what is in his power towards redressing it, the Judge is an accomplice.
Art. 9. Should the Registrar refuse, or wilfully delay, to make or cause make such entry,—in such case, rather than any such information, as above, should be suppressed, it belongs to any other actor on the Judicial Theatre, as per Section 2, to make such recordation of the matter in question, as he is able, taking, in testimony of the correctness of it, the signatures of any persons present.
Art. 10. Of every such entry made in the Incidental Complaint-Book, lection shall be forthwith made to the assembled audience, and inspection allowed to every person desiring to inspect it, for the purpose of ascertaining, and securing the correctness, clearness, and completeness of it. If thereupon, by any person, imperfection in respect of any of those qualities be imputed to it, such person may, on the spot, draw up, and tender to the Registrar, a minute of amendment, stating such alleged deficiency, together with such forms of words, as shall be deemed by him requisite for the appropriate supply, substitution, or defalcation. To this minute, the Registrar is thereupon bound to give authentication; to wit, either by his signature on the original or by a transcript entered in the Incidental Complaint-Book.
Art. 11. To any such minute, it rests with the writer, or any one else, to give publicity, in what form and to what extent he thinks fit: and the writer will do well, if it be an Immediate Judicatory, to cause deposit in the Appellate Judicatory, one exemplar, and transmit another to the Justice Minister; if it be in an Appellate Judicatory, an exemplar to the Justice Minister.
Art. 12. Every person, who, for the purpose of eventual complaint, makes or causes make, any such minute, does so under his responsibility, satisfactional and punitional, as for wrongful mental vexation, should the complaint be deemed frivolous or false: especially should the falsehood be deemed to have been accompanied,—not with mere rashness, but with criminal consciousness: that is to say, the consciousness that the statement is, in the whole, or in any part, materially false.
Art. 13. Instructions explanatory of the design of, and connexion between, this and the four last preceding Sections: to wit, Sections 14, 15, 16, and 17: as also in some sort of Sections 28, 29, and 30, respecting location and dislocation.
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.
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.
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.
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.
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.
Judges’ Contested-Interpretation-Reporting Function.
Art. 1. This function has for its object the keeping the rule of action, and the decisions thereupon grounded, in all times, in so far as intended by the legislator, the same in all judicatories, and thence as to all persons: or say, for shortness, securing uniformity of decision: and moreover improvement: to wit, as well in matter, that is to say, as to subserviency to the end, as in form, that is to say, as to clearness, correctness, and comprehensiveness of expression.
To this end it is provided as follows:—
Art. 2. On the occasion of an Appeal, to wit, from an Immediate to the appropriate Appellate Judicatory, in so far as it rests on the ground of law, in contradistinction to fact, an interpretation, different from that put by the Judge, will, by the Appellant have been put upon some word or assemblage of words, contained in some article or articles of the Code. This being the case, the Judge will, in penning his opinative decree, call upon the Appellant to deliver to him a paper, containing the words of the opinative decree he, the Appellant, contends for, together with the article or articles on which he grounds his demand, that such words shall therein be employed. To this form of words the Judge will give the appellation of The Appellant’s Interpretation paper: and at the same time to any such form of words, as by himself is regarded as being, though different from, yet equivalent to, and correctly explanatory of, the words in question as they stand in the Code, he will give the appellation of the Judge’s Interpretation paper.
Art. 3. In so doing, he will, to the best of his endeavours, render his assistance to the Appellant, in giving expression to his meaning to the best advantage, proposing, upon occasion, for the appellant’s choice any such other terms, as to him, the said Judge, shall appear more apposite; that is to say, any such terms as, in his opinion, appear to afford a better warrant for such decrees, opinative and imperative, as the Appellant demands, than those so proposed for the said purpose by the Appellant.
Art. 4. On this same occasion, if to the Judge it appears that, by no alteration that occurs to him, could the intention expressed on that occasion in the Code, be either rendered more clear, or the matter of the Code improved,—he will transmit to the superordinate authorities, along with the record, his opinion to that effect, in and by the words no alteration needful or useful. A Judge’s Amendment-negativing-paper will, in that case, be the appellation of the paper containing those same words; Contested-interpretation-reporting function, that of the function thereby exercised. If, on the contrary, it appears to him, that for either of the above purposes, an alteration would be of use, he will, in case of simple defalcation, with the words in question, add the word dele; in case of addition, the words proposed to be added, with a designation of the place where; in case of substitution, the words proposed to be inserted, with a designation of the place where, accompanied by a copy of the words proposed to be defalcated, or say eliminated. A Judge’s Amendment-proposing-paper will be the appellation in this case: Eventually-emendative function, that of the function exercised. As to this matter, see Ch. vi. Legislature, Section 29, Members’ Motions.
Art. 5. If, on the occasion in question, the Appellant has the assistance of a Professional Lawyer, as per Ch. xxiii., there will be the less need of any such anxiety, as per Art. 3, on the part of the Judge. If, for want of appropriate knowledge, judgment, or active aptitude, the Appellant appears to be not sufficiently qualified to do justice to his own cause, and at the same time not unable to bear the expense of professional assistance, the Judge will, if he sees reason, advise the procuring such assistance: if in his view, through want of pecuniary means, such inability has place, he will call in the assistance of the Eleemosynary Advocate, as per Ch. xx.; or the Eleemosynary Advocate may in such case, of his own accord, interpose and proffer his assistance.
Art. 6. The two concomitant and opposite interpretations being thus drawn up, the Registrar will cause the Appellant to authenticate his interpretation by his signature; in case of refusal, mention thereof will be entered.
Art. 7. Concurrence in this way in the authentication of an Appellant’s Interpretation paper, as above, will be among the conditions without which, no Appeal on the ground of law will, by the Registrar of the Immediate Judicatory, be transmitted to the Appellate Judicatory.
Art. 8. Contested Interpretation Report. Of every case, in which any such pair of opposite interpretations has place, the Registrar, under the direction of the Judge, will draw up a report, termed the Contested Interpretation Report.
Art. 9. In each such Report, the number of the thus conflicting interpretations will ordinarily be no more than two: namely, that of the Judge, and that of the Appellant. But, what may happen, is that, on the same word or words, by divers Appellants, interpretations will have been put different from one another, as well as from that of the Judge. In this case, each such Appellant will be called upon, and allowed to give in, his Interpretation-paper, which will accordingly be included in the Report.
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.
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.
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.
7. Kept by the Judge Appellate for his own use, one.
Art. 13. Justice Minister’s Contested Interpretation Report. In the same manner the Justice Minister will frame and transmit his Contested Interpretation Report to the Legislation Minister, for the use of the Legislature.
Art. 14. That, in the progress of the above Reports from the Immediate Registry to the Legislature, no unnecessary delay may have place, the Registrar will, at each office, be careful to set down upon his Register, as well as upon the face of each Report respectively, the day on which it was received at his office, and the day on which it was therefrom transmitted.
Art. 15. Contested Interpretation Committee. For the consideration of all such Contested Interpretation Reports, as shall, as above, have been received by the Legislation Minister,—the Legislature will have provided, and kept in constant exercise, a standing committee, under the appellation of The Contested Interpretation Committee.
Art. 16. At the end of [NA] days after receipt of a Justice Minister’s Contested Interpretation Report by the said committee, (if within that time no motion has therein been made for the taking such Report into consideration,) the interpretation, if any, which has been sanctioned or proposed by the Justice Minister, shall be considered as adopted by the Legislature, and corresponding amendment, directive or re-editive, as the case may appear to require, be, by the Legislation Minister, (subject to direction by the Legislature and the Contested Interpretation Committee,) applied to the part or parts in question of the Pannomion, as per Ch. xi. Ministers severally, Section 2, Legislation Minister.
Art. 17. Justice Minister’s Annual Interpretation Diversity Table and Report. On the view taken by him of the several Contested Interpretation Reports, it will be among the cares of the Justice Minister to take special note of all instances, if any, in which, upon one and the same word or passage, in any article of the Pannomion, different interpretations have been put, in different Judicatories, Immediate or Appellate; and from them, on the last day of every year, or oftener, he will transmit to the Legislation Minister an aggregate Report, styled the Justice Minister’s Annual Interpretation Diversity Report: in which, in a tabular form, all those several instances of diversity stand expressed.
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.
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.
Judges’ Eventually-emendative Function.
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.
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.
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.
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.
3. Transmitted to the Legislation Minister, with the like mark, one.
4. Kept in the Registry, one.
5. Kept by the Judge for his own use, one.
Art. 5. Mode of bringing forward the amendment, by the instrumentality of an individual special applicant.—The individual having taken note of the article or articles, which to him appear as standing in need of amendment, and being desirous to procure, by the authority of the Judge Immediate, under the eyes of his superordinates, the adoption of such amendment accordingly,—he frames his proposed amendment, employing either the directive, or the re-editive mode, as per Ch. xi. Ministers severally, Section 2, Legislation Minister. This proposed amendment, the judge, after hearing what he thinks fit to hear from the mouth of the proposer in support of it, either rejects simply, or adopts simply, or adopts with any such super-amendment, subtractive, additive, or substitutive, as to him seems proper. The result becomes the proposition of him, the said Judge Immediate, and is dealt with, as above, per Arts. 2, 3, 4.
Art. 6. On receipt of his exemplar, the Registrar of the Appellate Judicatory marks on it the day when received. Describing it by the designation of the article or articles to which it applies, he sends notice to the Justice Minister of the reception given to it by the Judge Appellate, as signified by the words Approved, Acquiesced in, or Disapproved: which words are expected to be written by the hand of the Judge. So likewise another such notice to the Legislation Minister. If within consideration time, as per Art. 2, and Ch. xi. Section 2, Art. 53, no such notice to the contrary has been received by the Legislation Minister, the amendment is considered as acquiesced in by the Judge Appellate and Justice Minister respectively.
Art. 7. In like manner, the Justice Minister, after receipt of his exemplar, causes notice to be given to the Legislation Minister.
Art. 8. If, within consideration time, as per Art. 2, notice of disapproval has been received by the Legislation Minister, from either the Judge Appellate or the Justice Minister, rejection is the consequence: if from neither, adoption.
Art. 9. So, if, within such consideration time, a motion for the taking the amendment into consideration has been made by a member of the Legislature, and by another seconded, the aggregation of it to the body of the laws remains suspended, until the result of such motion has been determined.
Art. 10. When an extraneous amendment is thus submitted to the Judge, it matters not whether the applicant has or has not a particular interest in its adoption.
Enactive. Instructional. Ratiocinative.
Art. 11. Nor yet whether any explanations given on the occasion be true in fact. Not but that, for the purpose of giving additional clearness to the conception conveyed by him of the nature of the demand for the amendment, the applicant may, on his responsibility in case of falsehood, state the details of any individual case, in which he himself, or any other party, has a particular interest. But, as to the adoption or rejection of the thus proposed amendment, the Judge need not regard himself as bound by any opinions formed by him respecting the truth of any such statements: for, only to the species of the case, not to any individual fact, separately considered, will any such amendment apply itself: accordingly, not being considered as constituting evidence, the matter of such statement need not (unless the Judge thinks fit) be entered on the record.
Art. 12. If, however, his adoption of the proposed amendment depends in any degree on the truth of any allegation of the proposer’s, in relation to any matter of fact, such allegation will be considered as evidence; and, for ensuring the verity of it, the same securities will apply as in the case of a piece of evidence delivered on the occasion of a suit.
Art. 13. To an amendment proposed, as above, by an individual applicant, his name will be attached, of course, unless the contrary be his desire.
Art. 14. An amendment proposed by a Judge Depute, permanent or occasional, will not be transmitted, without the approval or acquiescence of the Judge Principal, as attested by his signature.
Art. 15. Only for some alleged oversight in the wording, in consequence of which the words employed fail, it is supposed, of being expressive either of the desire actually entertained by the legislature, or of the desire which it is believed would have been thereby entertained, if the circumstances mentioned as forming the ground of a justificative cause of the demand for the amendment had been respectively present to its mind,—only for amendments of this description is it expected that any such proposition, if made, will be received by the Judge. For if it be in respect of the design and policy of the law that a change presents itself as beneficial, an appropriate authority more competent to the reception of the supposed amendment, is the Legislature.
Art. 16. In the event of its being deemed frivolous by the Judge Immediate, to whom it is submitted, lest by accident or design the disposable time of the Judicatory should be occupied in waste, and, with or without design, denial or considerable delay of justice be produced, every person whose signature is attached to such proposed amendment is responsible for it, satisfactionally or punitionally, or in both ways, as the case may require, in like manner as for a frivolous and vexatious suit, as per Procedure Code.
Art. 17. If, at any time, in any Judicatory or Judicatories, such extraneous proposed amendments should increase in number, in such sort as to occupy a greater portion of the time of Judges than can be conveniently allotted for this collateral purpose, it will be among the cares of the Legislature to repress the excess by annexation of such conditions as shall be deemed apposite: requiring, for example, on every occasion, in addition to the applicant, responsible law practitioners at his choice, in number proportioned to the exigency of the case.
Art. 18. In the exercise of this same eventually emendative function, the Judge will have in consideration the local extent which it appears to him proper to be given to any regulation on that occasion proposed by him: observing whether the circumstances, by which the demand for it is constituted, are peculiar to his own territory, common to all the judicial territories of the state, or peculiar to such or such other territory or territories; and these distinctions she will bring to view, in his Melioration-suggesting, or say Emendation-suggesting Report.
Art. 19. On this occasion, he will pay particular and separate attention to the field of Procedure.
Art. 20. To these same distinctions, reference will moreover be made by the Judge Appellate, in the Report made by him upon the Judge Immediate’s Emendation-suggesting, or Melioration-suggesting Reports.
Art. 21. So likewise by the Justice Minister, in the Reports made by him thereupon to the Legislature.
Art. 22. On the occasion of any such proposed amendments or new regulations on the subject of procedure, the Justice Minister will have special regard to the demand for uniformity, as in the case of contested interpretation, as per Section 19, Contested-interpretation-reporting function: to the end that, in the particulars in question, uniformity and diversiformity, according to the demand for these qualities respectively, may, in the several judicial territories of the state, be created and preserved.
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.
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.
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.
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.
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.
Judges’ Sistitive, or say Execution-staying Function.
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.
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.
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.
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.
3. That, of this same sistitive function, the exercise be accompanied by a corresponding exercise given to the Eventually-emendative function, in such sort that express reference of the case to the will of the legislature be made, as above.
Art. 5. In the tenor of the sistitive decree or mandate, the description of the time of its continuance may be in these words,—unless and until, on view of this order, the legislature shall have ordained otherwise.
Art. 6. Of every such pair of decrees, as per Art. 3, exemplars will accompany those of the corresponding Emendation-suggesting Report, as per Section 20, Art. 4.
Art. 7. On whatever occasion exercised, the earlier the stage at which in the course of the suit it is exercised, the better: for example, upon the bare view of the law, antecedently to any inquiry in the way of contestation, as to the question of fact.
Art. 8. If, at the time of the observation made by the Judge, as above, the elicitation of the evidence has not been completed, he may in the ordinary course of procedure, to save vexation and expense, stop such process until, as above, the will of the Legislature shall have been made known.
Art. 9. If, however, by the result of the judicial examination of an applicant, or otherwise, it shall appear to him that evidence, material to the giving effect to the application (should the order of the Legislature require him to give effect to the law as it stands) would, by the delay in question, be in danger of being lost,—he will, at the instance of the applicant, continue the collection thereof until it shall have been completed: but, in this case, he will give warning to the applicant, that it is at the peril of costs of suit, and compensation for the delay and vexation, that what he so insists on will be done; and for securing eventual payment, he will, as upon occasions in the ordinary course, as per Procedure Code, take such arrangements as the nature of the case, and the situation and circumstances of parties may require.
Art. 10. When, by exercise given to the Judges’ sistitive function, execution, to a portion of law as it stands, has been, as above, refused, the effect of such refusal will be liable to be retroactive: disfulfilling thus an engagement, which (though, as supposed, through oversight) had been entered into by the law. Here then comes a dilemma. Giving execution and effect to the law as it stands, the Judge, by the supposition, renders himself, in his own conception, instrumental in the commission of an injustice: refusing so to do, he disfulfills an engagement entered into by the law, and thereby also commits an injustice: weakening, in a certain degree, it may be feared, the confidence reposed by the people in the general trustworthiness of the law. But, that which the people look to, at the hands of the Legislature and the Judiciary together is—the fulfilment of salutary ordinances, and no others: not the production of evil by admission or omission of this or that word in a law, through inadvertence or otherwise. What may, therefore, be reasonably looked for, is—that, by giving execution and effect to the imperfectly expressed portion of law in question, a severer shock would be given to the public confidence, than by forbearing so to do.
Art. 11. Under this dilemma,—for minimization of the evil, the Judge will take such course as shall have been indicated by the circumstances of the individual case: examples are as follow:
1. Case I. A penal case. The law so inappositely penned, as to subject to punishment a medical practitioner, who, seeing a person attacked in the street by a disorder, to the cure of which immediate bleeding is necessary or contributory, has accordingly performed on him that operation. By an adversary, he is prosecuted under this law. By the Judge, execution of it (suppose) is refused. Now, by this refusal is produced a retroactive effect; and, in consequence, in the breast of the adversary, a pain of disappointment. Less, however, will be the evil composed of this pain, than the evil composed of the punishment, if inflicted on the practitioner, by whose intervention a life has been preserved; and by whose punishment the public mind would naturally be impressed with sympathy as towards the sufferer; antipathy, as towards all those concerned in the production of the suffering; and terror on each one’s own account, and that of his friends, in respect of their exposure to the operation of laws so framed.
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.
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.
Art. 14. A case, alluded to in Art. 11, may afford an example: it is that of a law against assassination, converting, by looseness of expression, into a mortally punishable crime, the act of him who has drawn blood in the streets: thus a surgeon who, on seeing a man fall into a fit, bleeds him, is prosecuted—the Judge, if honest and timid, construes the law according to the letter, reluctantly: if adverse to the surgeon, and to such a degree dishonest, gladly.
Instructional. Expositive. Exemplificational.
Art. 15. This sort of case will have place as often, for example, as, in a penal law, a requisite justificative or exemptive cause has been omitted to be established: or in a non-penal law, having for its subject, contracts in general, or a particular species of contract, an exonerative clause.
Art. 16. Objections answered. Objections liable to present themselves are the following:—
“1. In this way, the legislative and judicial powers are confounded—united in one and the same set of hands—and of the legislative power itself, the two elementary powers, the initiative and the consummative.”
“2. The legislative power thus given to the members of the judiciary extends over the whole field of legislation: no limits are, or can be, set to it.”
“3. By the eventually-emendative and sistitive functions together, the preinterpretative, (as to which see Section 22,) is rendered useless.”
Art. 17. Such are the objections. In each instance the incongruity pointed out will be found to be only apparent, and not real.
As to the initiative function here given to Judges. This is no other than that which is given not only to these same functionaries, but to every inhabitant of the state, and every inhabitant of the globe. Given it is without any the smallest risk or inconvenience: for, with the exercise given to the power, by the making of the proposal, the power ceases: no further power has the proposer, whoever he be, for the support of it. In the case of the Immediate Judge, true it is that, coupled with the opinion of his superordinates in the two grades, the mere inaction of the Legislature suffices for giving to his proposal the effect of law: in appropriate language for adding to his initiative, the consummative. But, neither can the Judge, any more than any foreigner, contribute any political power to the adoption of what he has thus proposed: and, besides his two superordinates above-mentioned, any two members when the proposal comes before the Legislature, which is what it cannot fail to do,—any two members, each at the expense of no more than three or four words, will suffice for defeating the proposal altogether: nor can it take effect during the sleep of the Legislature, for, directly delivered and perpetually renewed mementos are provided for keeping that body awake.
Art. 18. As to the unlimitedness, true it is, that, on the field of legislation, to this power, such as it is, no limits are here set: no less true is it, that an attempt to set any such limits would be a task of no small difficulty. On the other hand, not less true will it be seen to be, that, as to any such limits, there would be neither need nor use. That which could not be done without great difficulty and complication by definition, will be done without any difficulty by practice—by experience.
Art. 19. Wherever, through oversight, a clause, or a word, adverse to the general design of the law, has crept in, all persons whose views the design suits, will be glad to see the oversight repaired. This is what, without trouble to any of them, the Judge could do for all of them: this is what, without more or less trouble if at all, they could not do for themselves. So far, therefore, as a Judge is seen to be thus occupied, so far his amendments will be well received and employed. On the other hand, should it ever happen to a Judge to be seen abusing this liberty, by employing it in making encroachments from his own region into that which is above him, jealousy would be awakened, and the project crushed.
“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.”
Art. 20. To Judges, all this will be no less manifest, than to Legislators. Every Judge will feel assured of being admitted to correct oversights, and save himself from being seen acting in the odious character of an instrument of injustice. No Judge can hope to give birth in this way to any independent and extensive measure.
Any little miscalculation which, on such an occasion, a man may have fallen into, the event will, in all quietness, immediately set to rights.
Art. 21. Neither to Judges Appellate, nor even to the Justice Minister, does it seem necessary that this power should be granted. Not that it is not desirable upon occasion, that it should be exercised by them. What is desirable, is, that it should be exercised by both of them; but by both under the same checks as those which apply to the situation of the Judge Immediate. In that of Judge Appellate, whatever alteration may happen to have presented itself to a man’s mind in the character of an amendment, it is not in the nature of things that he should be at a loss for a Judge Immediate to propose it for him; still less, in the still superior situation of Justice Minister.
Art. 22. In the text, against abuse in every shape in which the powers attached to these functions are exposed to it, appropriate warnings are given. But, supposing these warnings ever so much beyond expectation ineffectual, never could abuse approach to the height, at which it as yet stands everywhere: nowhere so conspicuously as in the field of English law: Legislators and Judges being, by habit, alike steeled against sensibility to the evils to which they are continually giving birth. “What the eye does not see,” says the proverb, “the heart does not rue.”
Necessary were all these functions, to the giving to the forensic the intended simplicity of the domestic system of procedure, and the appropriate aptitude, which, to the extent of its powers, the only familiar, yet so craftily and pertinaciously neglected system, possesses.
All this supposes the dominion of the only real law established over the whole field of law: all this supposes, sooner or later, completely extirpated the spurious substitute, sprung from necessity, nursed and kept on the throne by artifice—the chimera, called by such a multitude of names, of which Common Law is one.
Art. 1. To this function exercise is given, in so far as an application is by any person made, bringing to view a particular portion of the Pannomion, and requesting to know of the Judge, what, in case of a suit thereupon grounded, will be the import by him ascribed to it, and the opinative decree pronounced in consequence: all such other points in the Pannomion as are deemed to bear upon the point in question, being at the same time contemplated.
Art. 2. In this case, if reasonable cause of doubt appears, the Judge will not refuse to the public the security, which, by the removal of it, would be produced: nor to the applicant,—if so it be that he has any special interest in the import ascribed to the portion of law in question,—the like security, together with exemption from the vexation and expense inseparable from litigation, in particular from whatsoever might have otherwise been produced by elicitation of evidence.
Art. 3. If to the Judge, it shall, on this occasion, appear, that, by a correspondent amendment, ambiguity or obscurity may be cleared up, and that, by the benefit of such clearance, the evil, produced by the addition, if any, made thereby to the bulk of the rule of action, will be outweighed,—he will accordingly make transmission of such proposed amendment to the superordinate authorities, as per Section 20, and Ch. xi. Ministers severally, Section 2, Legislation Minister.
Art. 4. Note here, that need of interpretation may have place, without deficiency on the part of the Legislator in any point of appropriate aptitude: without either sinister policy, on his part, or relative ignorance, or erroneous judgment, or so much as oversight: for, it may be, that at the time of enactment, the reason of the case requiring a certain species of objects to be included in the law, the existence of no individual belonging to that species was at the time realized, or could so much as have been anticipated.
Art. 5. On this occasion, an evil against which the Judge and the several superordinate authorities will be on their guard, is—the danger of doing injustice to other interests, which, by, or in consequence of, the statement made by the applicant, may not have been sufficiently brought to view. Accordingly, no such preinterpretation will the Judge ever afford, without having taken effectual measures for preserving all such interests from being injured, for want of adequate faculty of contestation and counter-evidence.
Art. 6. At any rate, if the response, being in disfavour of the applicant, he acquiesces in it, here is a saving of evil on both sides: to the applicant, whatsoever vexation and expense would have accompanied the elicitation of evidence on his side, and the contestation thereof with or without counter-evidence, on the adverse side: to him who would otherwise have been a defendant, the correspondent vexation and expense, together with that of the contestation on the point of law.
Art. 7. Against frivolous applications, on this as on other grounds, for sinister purposes, such as that of inflicting vexation on the Judge, or preoccupying his time for the purpose of extinguishing evidence, or delaying justice, in relation to this or that other suit or suits,—provision by responsibility, compensational or punitional, or both, as the case may require, will be seen in the Procedure Code: of the pecuniary responsibility, the produce may be paid into the Equal Justice Fund, as per Section 13, Justice for the Helpless, Art. 15.
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.
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.
Application of Sections 19, 20, 21, and 22, to the several Codes of the Pannomion, and to unwritten Law.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Judges’ non-Contestational-Evidence-Elicitation Function.
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.
For the mode of exercise, see Procedure Code, Ch. viii. Judicial Application, Section 8—Application—its purposes.
Art. 2. Among the purposes for which the correspondent application may be made, is the obtaining the sort of judicial service rendered by reception and registration given to orally, or upon occasion scriptitiously delivered, evidence, to whatsoever legal purposes eventually applicable.
Art. 3. The application may be either 1. Unilateral, or 2. Bilateral: unilateral, that is to say on one side only; in either case, having for its object an eventual suit, determinate or indeterminate.
Art. 4. Bilateral, the application is made by two or more, the applicants having for their object the settlement of some individual dispute, by the ascertainment of some fact or facts, on which it turns.
Art. 5. In this case, the application is, with reference to the question of fact, analogous to what, in the case of the preinterpretative function, as per Section 22, it is with reference to the question of law.
Art. 6. Purposes, private or public: in either case, non-litigational or litigational: if litigational, suit non-inculpative or inculpative: suit, if inculpative, either non-criminative or criminative: suit in either case purely public or privato-public: understand by privato-public, affecting in such sort an individual or individuals assignable, as, by means of the evil of the second order, to affect the community at large.
In any case, the persons, which the application has for its object, whether in the situation (for example) of eventual pursuer, or in that of eventual defendant, may determinately and individually, or only indeterminately and specifically, be in contemplation.
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.
Judges’, &c., Attendance.
Art. 1. When sleeps Injustice, so may Justice too. In an Immediate Judicatory, at no time is the Judicatory without a Judge sitting in one Justice Chamber at least: on no day in the week or year, in no hour of the twenty-four.
Art. 2. Considered in respect of time, judicial service, or say duty, is distinguished into day duty, and night duty: judicial attendance accordingly, into day attendance and night attendance.
Art. 3. Considered in respect of place, judicial service is distinguished into home duty and out-door duty: judicial attendance accordingly, into home attendance and out-door attendance.
Art. 4. To the Immediate Judicatories alone, belong these distinctions in respect of time and place. For the mode of attendance on night duty and out-door duty, see Ch. xiii. Judges Immediate.
Art. 5. The day duty is divided into a first part and a second part. The first part commences at 6 o’clock in the morning, and lasts till 2 o’clock in the afternoon, containing thus eight hours: the second part commences at 2 o’clock in the afternoon, and lasts till 10 o’clock in the evening, thus also containing eight hours. The night service commences at 10 at night, and lasts till 6 o’clock in the morning: thus containing also eight hours.
Art. 6. This, for example. In the several Judicatories, the legislature will settle this division of time, according to climate, temperature, and national habits, as general convenience shall be deemed to prescribe. For an Appellate Judicatory in particular, the hours of attendance will probably be taken partly from the time of the first part, partly from the time of the second part, of day duty.
Art. 7. Excepted days excepted, for the Judge Principal, days of attendance are all the days in the year: the excepted days are styled relaxation days: the number of them is fifty-two, equal to that of the days of general rest: with the addition of [twenty-six] other days, at his choice.
Art. 8. Thus in the case of a Judge Immediate: so, in the case of a Judge Appellate: that is to say, so long as any suit sent up from any Immediate Judicatory within the Judge Appellate’s Judgeshire remains undecided.
Art. 9. Hours [eight] on an average.
Art. 10. Thus in the case of a Judge Immediate: so in the case of a Judge Appellate.
Art. 11. Where, to avoid breaking the thread of evidence or argumentation, the Judge principal sits over time on one day, he may sit so much the less on any day or days of the next [six] days.
Art. 12. But on no day or hour may he be absent from duty, unless some Depute, permanent or occasional, be present: when a successor appears and takes the seat, then and not before he who occupies it, quits it.
Art. 13. For the purpose of pecuniary remuneration, and the locability of Deputes, Judicial attendance is thus recorded. As in an Immediate so in an Appellate Judicatory, under the care of the Registrar, three Attendance Register, a weekly, a monthly, and an annual one, are constantly kept. They are kept by manuscript entries, daily made, in printed Tables, under the appropriate heads.
Art. 14. Weekly Attendance Register. This is thus kept. Vertical columns, seven: headed in a horizontal line, with the names of the days of the week: horizontal columns under, and crossing those same vertical columns, twenty-four: headed, each of them, on the left and right extremities, by the numerical names of the hours. On quitting his seat in the Justice Chamber, each occupant writes the initials of his name, in the compartments expressive of the several hours, during which he has been occupying it.
Art. 15. Of these Weekly Registers, four, placed in an horizontal line, compose a Monthly Register: the Register of a Lunar month.
Art. 16. Of these Monthly Registers, twelve, with the addition of a Supplemental one, containing the odd twenty-nine days, go to the composition of the Annual Register.
Art. 17. In a conspicuous part of the Justice Chamber, in type and position such as to be legible to the Probationary Professional Lawyers, as they sit in the Judiciary Inspectors’ Compartment, as per Ch. xvii., and to the attendant suitors in their capacity of Judicial Inspectors as far as may be, the Monthly Register of the month is kept hung up: that month expired, it is slid away on one side, and another put in its place, the former one, however, remaining still visible.
Art. 18. Out of the materials furnished by these Registers, the Registrar frames the Individual Service Calendar of each Judge Depute, as per Section 28, Locable who.
Art. 19. Of each functionary, (the Registrar excepted,) the pecuniary remuneration is paid daily by the Registrar to the functionary, Principal, or Depute, on the official seat, according as it is by the one or the other that the seat is occupied: at the conclusion of the time allotted for the sitting, as per Arts. 5, 6. If at that time, neither Principal nor Depute be there present, the pay of that day reverts to the public, and the Registrar remains charged with it. In the Weekly Register, as per Art. 15, the act of reception is acknowledged by the initials of the receiver’s name, written by his hand, with the initial letter R added.
Art. 20. On the last pay day, of every quarter of the year of his service, the functionary receives on his seat the pay of the relaxation days, regular and chosen together, included in that same quarter.
Art. 21. The Registrar being, as per Ch. xxi. Section 3, paymaster, he entitles himself in the same manner, to retain his pay, as it becomes due.
Art. 22. Government Advocate’s attendance. Exceptions excepted, wheresoever and whensoever a Judge serves, so does a Government Advocate.
Art. 23. Exceptions are—
1. Night-home duty.
2. Out-door duty; unless in a case in which Government is a party, or at the instance of a party, the Advocate’s attendance is excused by the Judge.
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.
Art. 24. Eleemosynary Advocate’s attendance. Exceptions excepted, wheresoever and whensoever a Judge serves, so does an Eleemosynary Advocate.
Art. 25. Exceptions are—
1. Night-home duty.
2. Out-door duty; if in a case which, there being no party to whom his appropriate assistance should be afforded, his attendance is excused at the instance of any party, by the Judge.
3. Out-door duty; if by the suddenness and urgency of the demand, his attendance is rendered impracticable without preponderant inconvenience in respect of delay or expense.
Art. 26. For the attendance of the Government Advocate and the Eleemosynary Advocate, the demand is created,—not merely by the need of their active service, on the occasions on which they officiate, but also by the need of their presence in the character of Judicial Inspectors of the conduct of the Judge. They being as well as the Judge paid for the whole of their time, it is matter of indulgence to them if, on any occasion on which the attendance of the Judge is demanded, attendance on their parts is ever excused.
Art. 27. In the case of out-door service at large, an adequate ground of excuse for either or both, may, however, be constituted by the addition that would be made to the expense.
Art. 28. Registrar’s Attendance. Nighthome duty excepted, whensoever and wheresoever a Judge serves, so does a Registrar.
Enactive. Ratiocinative. Instructional.
Art. 29. Depute permanent’s attendance. In respect of hours, on the part of a Depute permanent in the several situations, assiduity of attendance will be the same, as on the part of the Principal, or in such other degree as on the occasion of the original location, or afterwards shall have been agreed on, between Principal and Depute: yet, so as, that, for want of some Depute, permanent or occasional, serving respectively in the number of hours appointed for the Principal, no business shall remain undespatched.
Art. 30. That, on the part of a Depute, in the several situations, experience, and consequent presumptive aptitude, for location in the situation of Principal, may be, as near as may be, coextensive with the experience of the Principal,—the Principal will bear in mind the giving the correspondent diversification to the employment of each Depute.
Art. 31. In this or that Judicatory, the Legislature, if by reason of the quantity of judicial business, and the smallness of the number of persons willing to serve as Deputes, it sees need, will provide pay for one or more Deputes permanent.
Art. 32. But, in that case, it will, it is supposed, see sufficient reason to avoid impairing the simplicity of the system, by relaxing the dependence of Deputes on Principals, or by admitting on the part of the Stipendiary Depute less closeness of attendance than what is exacted of the Judge Principal.
Art. 33. Of the sort of uninterruptedness here required, examples are not altogether wanting in English practice. In respect of origin, they are but recent; and, in extent over the field of law, narrow,—limited as they are, to that part of it, which is covered by the Jurisdiction given to the subclass of Justices of the Peace, distinguished by the appellation of Stipendiary Magistrates. That which in this case expectation points to, is uninterruptedness; but, for the degree in which the expectation is fulfilled, the business takes its chance.
Art. 34. Stipendiary Magistrates in the city of London, none: in the vicinity of London, Judicatories thus composed, nine: in each Judicatory, Judges, three:* sittings in some cases single, in other cases in pairs: in Manchester, one: in no other part of England, any.†
Art. 35. To what is above the class of exceptions is but one: and it has been seen how narrow a one: general rule—the rule strictly observed by every other of so many thousands of these judges, this: when it is more agreeable to him to attend to the duty than to neglect it, he attends to it; when it is more agreeable to him to neglect it, he neglects it.
Art. 36. But, discontinuity, all pervading discontinuity, is the leading principle. Of matchless constitution, denial of justice, and for lengths of time, altogether unknown in every civilized country, is among the characteristic features.
Art. 37. In common Law cases, civil and criminal together; in common Law cases, as distinguished from Equity cases, from Ecclesiastical Law cases, and from Admiralty Law cases—intervals, in each twelvemonth, in each place, (the metropolis excepted,) two: to wit, in each of two terms of six months, days all but two or three. As for the case of exception, that of the metropolis, it is too much diversified to be taken for the subject of delineation here.
Art. 38. In France, exceptions excepted, on the part of Judicial functionaries, continuity of attendance is left to individual probity, under the guardianship of chance.
Art. 39. Exception is the sort of Judicatory, composed of the sort of Judges called, in imitation of the English system, Justices of the Peace.
Art. 40. The number of sitting days in a week are settled by each Judicatory for itself by Regulations, which, for their validity, require the signature of the Justice Minister—Garde des Sceaux.
Art. 41. But, in a criminal suit of the highest class, the suit once begun, sitting days are undiscontinued, until it is concluded. In the choice of the first day, endeavour is however used to avoid including a Sunday in the sequence.
Art. 42. General vacation time, two months in the year: viz. from 1st September to 1st November inclusive. But, during, or in the course of, this nominal vacation time,—the entire Judicatory being in general divided into several Judicatories,—each containing Judges more than one,—one of them, during the repose of the rest, sits, under the name of a Vacation Chamber; and thus, out of the vast disorder, constituted by this conglomeration of-many-seated Judicatories, is deduced an imperfectly compensative remedy.
Art. 43. In some cases, too small is the aggregate Judicatory to be regarded as capable of bearing to be thus divided. In these cases, the whole sits in continued sittings, in Vacation as well as Term time; and all the repose the Judges enjoy, extends not beyond a few days.
Art. 44. In most Judicatories has place, on the part of all the Judges together, the practice of enjoying now and then by stealth a few holidays: at Easter three days; at Whitsuntide, three; at Christmas, three or four. Allowed by law these indulgences are not: but, neither are they repressed.
Art. 45. Sitting time in a day, generally but one: hours in it three. But, in a case of urgency, another sitting time is added, with hours in it from 8 to 10; but, in this case, for refreshment, a small interval is taken by Judges and Jurors.
Art. 46. As between day-service and night-service, the division thus made of the whole solar day, or say interval between one mid-day and the next, will of course require to be modified according to the time of the year and the climate as per Art. 6.* What is ordained as above in the Enactive Articles, must not be considered as amounting to anything other than an exemplification of the principle. Of the hours comprised in the day-service, first half and second half taken together,—some will not be of the number of those in which the people in general are engaged in their ordinary day occupation: and, so far as this is the case, the transaction of the judicial business will not, at those times, be consistent with general convenience.
Art. 47. On this occasion, a distinction will require to be made between casual service and appointed service.
Art. 48. By casual service, understand that, the demand for which is constituted by cases of urgency: such, to wit, in which at any moment of the twenty-four hours, it may happen, that, by the indispensable regard for the ends of justice, demand shall be produced for the exercise of the functions of a Judge. Those cases will commonly be understood to come under the head of cases of police: but, be the custom anywhere what it may,—regard for the ends of justice can never either require or admit the establishment of two sets of judicatories—all over the territory of the state, or in any part of that territory:—one, for the sort of justice which has at all times gone under the name of justice; another, for the sort of justice which has in modern times received the name of police.
Art. 49. By appointed service, understand that, which is performed during a portion of the day, the commencement of which is determined by a special ordinance of the Judge. In this way will be marked out, whatsoever time is employed or to be employed in hearings with a Quasi-Jury: and, on each individual occasion, or by a general rule, for the commencement of such service, that hour and minute may be, and of course naturally will be, so marked out, which is regarded as most consistent with general convenience.
Art. 50. As on all other occasions, so on these,—for cases, which are not regarded as cases of urgency, such hours of commencement will, in every political state, and may in any judicial territory in the state,—be appointed, as are regarded as most consistent with general convenience: leaving, for sitting in casual cases, all hours antecedent and subsequent to those employed in these appointed sittings.
Art. 51. During a proportion of the year more or less considerable,—it may happen in the Judicatory, be it what it may, that, on this or that day, no individual casual case shall take place during the time, left as it were vacant, for the reception of such casual cases: and whatsoever may be the amount of the total quantity of time thus left unemployed in actual service,—the obligation of being thus in attendance for and during that same quantity of time, may at first view be apt to present the idea of hardship, as resulting from the imposition of this obligation on the Judge. But so long on further consideration—so long as a sufficient number of relaxation days are allowed, nothing of hardship it will be seen has place. So as he is but on the spot, the Judge will occupy himself in the manner most agreeable and convenient to himself; and thus it is,—that, so far from being less eligible, his condition will be more eligible than that of a person whose time of labour coincides with, and occupies the whole of his time of attendance.
Art. 52. Two standards of reference applicable alike to all political states and all climates, suggest the two following rules:—
i. Among public functionaries in the several departments, in all grades from the lowest to the highest, whatever is the number of the days in the year, and of the hours in the day, by custom or regulation occupied by any individual, without detriment to health, that same number is the least which ought to be occupied in the department of justice.
Art. 53. ii. In the instance of whatever grade, how low soever, without detriment to health, the number of days and hours of attendance on duty is greatest,—as in the case of every other department, so in that of the judicial, that same number may without hardship be exacted of those functionaries whose situation is in the highest grade.
Art. 54. If there were any difference, it is in the case of the functionaries of the highest grade that the closest attendance should be exacted. Why? Because in respect of remuneration and thus of compensation, if even the pecuniary part is not superior, that which consists in power and dignity, cannot but be so. For the contrary practice, so far as it has place, justificative reasons there cannot be any: of historical or say æteological reasons, or in one word causes, there is this obvious one: to wit, that it is by the most powerful classes that the proportions have been determined: those next in power to themselves, are of course those which are most favoured by them, to the prejudice of all still inferior classes.
Art. 55. In England, the result of a superficial glance would give to this æteology a peremptory falsification: it would present to view the highest class of Judges in the character of martyrs, to their zeal for the public service, and discharge of their official duties: and the superiors, the members of the legislature, persevering with apathy in the practice of keeping them in the state of martyrdom. By a more particular inspection the illusion would be dissipated.
Art. 56. While judicatories, of various fields of service and divers grades, swarm in countless multitude; and while, in each of the three common Law Judicatories which occupy the grade next below that highest which is constituted by the House of Lords, four Judges are employed in doing badly what would be done much less badly by a single one; the number of these individual judicatories, is to a most flagrant degree inadequate to the demand. For, notwithstanding the immense number of suits which are prevented from coming into existence, by the impossibility which those who would have been suitors, are laid under, by the price exacted for their admission into that situation, (of which number, upon a very moderate guess, nine-tenths would be too low an estimate)—still the number of those which are actually instituted in those judicatories is so great, and the quantity of business in them is so great, as to exact at the hands of these Judges, and in particular of the chief of every four, a greater quantity of labour, than their constitutions are able to endure, without manifest and frequently exemplified detriment to the health of several of them. To apply to this deficiency an adequate remedy, would require more skill than the class of those on whom it depends, affords: the applying anything in the guise of a remedy, could not be so much as attempted, without incurring the intolerable reproach of innovation.
Art. 57. The result is—the bespeaking, and purchasing, at the expense of the people, by high premiums, this slow suicide: impunity for transgression in every shape; enormous salary; and, for the continuance of this enormous salary, continuance in office, notwithstanding intellectual inaptitude,—such are the principal items, of which this bounty is composed.
Art. 58. Of such a chaos whatsoever can be predicated, subjects the Censor to a most perplexing dilemma. Predicating unfavourably without exception, he exposes himself to the reproach of insincerity and injustice: undertaking to give all the exceptions, he engages in a labyrinth of dissertation without end.
Art. 59. That the suffering, to which the twelve* Judges are thus subjected, is the result of anything rather than a regard for justice, is proved by the exceptions which have place. Judge of his single-seated Judicatory, the Lord High Chancellor, (in whom the twelve Judges behold their creator,) bestows upon the business of justice, just as much and just as little of his time, as is convenient and agreeable to him: the remainder of his officially-employed time is employed—in allaying the squabbles, and helping to organize the corruption-operating measures of an impenetrable and irresponsible Cabinet. Such, in a greater or less degree, has been the state of things at all times; and in the course of the five or six and twenty years’ reign of the late Chancellor,* to atone for his inaptitude in every shape, and for the insufficiency of the quantity of time bestowed by him upon the business of judicature, the suitors were saddled by him with the delay, vexation, and part of the expense, and the population at large with the other part of the expense, of an additional grade or say stage of judicature, inserted in the midst of the old-established ones. From the Master in Chancery to the Master of the Rolls: from the Master of the Rolls to the Chancellor: from the Chancellor sitting alone to the same Chancellor sitting with three or four reluctant, ignorant, heedless, living appendages stuck down by him for appearance sake, in the House of Lords,—was not enough: between the Master of the Rolls and himself did this creator and preserver of all Judicial abuse, cram in a Vice-Chancellor; lest the number of the snares and plagues rained down upon the people on pretence of administering justice should be incomplete.
Art. 60. Under these circumstances—what, in regard to these functionaries, is actually the state of things? Answer: that no hardship is felt:—the functionaries receiving that which is the most agreeable to them—namely, money—in lieu of that which is less agreeable to them—namely, ease. As to the offices and the functionaries taken together, what then ought to be the state of things? Answer: to the offices, such number given, and, to each functionary so occupied, such time of attendance prescribed, as shall afford to this department of government, a sufficiency of appropriate labour, or say functionary-power, in this case Judge-power, (as men say steam-power,) without detriment to the health of any of the individuals so occupied.
Art. 61. As to what is the requisite number of the Judicatories,—antecedently to experience, not in any State,—and, in particular, not in any State by which the principles of this Code may come to be adopted, can any adequate indication be given of what that number will be. Antecedently to experience, alike impossible will it be found, to determine the number of the persons who will be able, and at the same time willing, in the several judicatories, to serve upon the proposed gratuitous terms, in the capacity of Deputes, to the Judges, and to the several other judicial functionaries. In this state of things,—another state of things, the existence of which, cannot, consistently with any knowledge of human nature, fail to be anticipated, is—on the part of those on whom it immediately depends, a general disposition and endeavour, to produce, in the aggregate number of these gratuitously serving Ministers of Justice, a deficiency, real or apparent; to wit, for the purpose of bringing about an augmentation in the number of the salaried situations, of which the Justice Minister will have the disposal; and to which the individuals, who dedicate themselves to this branch of the public service, may aspire. Such are the moral forces with which, on this occasion, the Legislature will have to contend.
Art. 62. Under the actually established English system, though in some parts so highly redundant, in other parts thus lamentably deficient is the number of the Judges. Hence, in the chain of official service, those vast gaps—those solutions of continuity—of which injustice by inaction, and oppression by positive action, are at once the results. By the inaction, for so long as it lasts,—justice is, in all cases in all sorts of suits—denied. But, it is in the field of penal law, and in that to a vast extent, that the oppression, and consequent evil, produced by an exercise of the judicial power, is, in a more particular degree, flagrant. For what is called a bailable offence—that is to say, an offence, for which, if he could find persons willing to bind themselves for his appearance, he would not be committed to prison—the Defendant, guilty or innocent, must, if he cannot find such bail, be committed to prison. Committed? and for what purpose? For no other purpose than that of securing his forthcomingness at the next sitting of that same Judicatory, or any other, whatever it may happen to be, to which his lot is consigned. As to the length of this interval of undue sufferance, it depends upon a variety of accidents, not one of them having any connexion with the conduct of the accused: it depends upon the nature of the Judicatory, and upon a variety of local circumstances. Accordingly, the duration of it is of various lengths, from a single day to two hundred days or more: all that time, guilty or innocent, the man is kept in a state of equal sufferance; ruined probably in mental constitution, by converse with the associates into whose company he has been thus forced; and, whether so ruined or not, ruined in reputation as well as in pecuniary circumstances.
Art. 63. The demand, continually apt to arise for the exercise of the legislative function, would of itself suffice to demonstrate the inadequacy of every system of law, under which any intermission of the exercise of that paramount and all-embracing duty, is allowed. It will of itself be a proof that, under all representative constitutions as yet established, the universal interest has, in the eyes of the legislature, been eclipsed by the particular interest of the legislators. Everywhere, for their own personal accommodation, regardless of the interest of their constituents, have those bad and unfaithful servants, given themselves long periods of inaction, as schoolmasters (but with much less lack of reason) give long holidays, really to and for themselves, nominally to and for their scholars. Monarchy, even the most absolute—Monarchy, with all its still greater evils, has the advantage of being exempt from this. Under that form of Government, at no time is the power wanting—at no time anything more than the will—to provide for any accident whatsoever: to apply to every oversight, and every mischance, the best remedy which the nature of the case admits of.
Art. 64. What would be thought of the founder of an Hospital, who, during half or a quarter of the whole number of months in a year, should provide for its being shut up, and the patients turned into the streets, or left to perish for want of relief? But, in the case of the Hospital, the evils, the cause, and the authors would all be more or less extensively visible; whereas in the case of the Legislature, how extensively soever visible the evils may be, the cause lying buried in the wisdom of dark ages, the evils are not traced up to it: and the authors of the continuance of the evil not being the authors of the commencement of it, are screened by their predecessors from the reproach so justly due.
Art. 65. For so flagrantly mischievous and absurd an institution as that of a regularly sleeping Legislature, only from the Book of Fallacies could anything in the shape of the shadow of a justification, or even so much as a palliative, be produced.
Art. 66. If, with any degree of reason, these observations are applicable to the business of legislation, with still more manifest reason are they to those of judicature. But, flint is the matter, of which, as yet, the hearts of all ruling functionaries have been composed.*
Judges’, &c., Term of Service.
Art. 1. A Judge’s term of service is for life: unless in case of dislocation, as per Section 30, Dislocable, how.
Art. 2. So, that of a Government Advocate.
Art. 3. So, that of an Eleemosynary Advocate.
Art. 4. So, that of a Registrar.
Art. 5. Why are not the functionaries here in question, continued in office during good behaviour?
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.
Of this position, the most perfect demonstration has been given elsewhere.* To the corruptee it is known by circumstances, what on the occasion in question, is the wish of the corruptor: say for example—the acquiring or retaining an estate in litigation. Between a son of the corruptor a man of wealth,—and a son of the corruptee a Judge,—it is settled, that upon the corruptee’s adjudging to the corruptor, the estate in question, the corruptor shall give to the son of the corruptee, a lucrative office, or his daughter to wife, with a large fortune: and to the father—by whom is made to his son, a certain allowance, which on his receipt of the provision in question, he withdraws,—it makes no difference whatever, whether the hand, into which the money is paid, be his own, or his son’s. Of neither of the sons, is it in the least degree probable, that he will spontaneously come forward in a Judicatory and give evidence of the transaction,—thus spontaneously calling down upon himself the indignation of his father, and covering the whole family with disgrace. But this is but one out of an infinity of other ways in which the same corrupt purpose might be effected.
Art. 6. By this phrase during good behaviour, an exemplification is given of two things: the power which, by long connected association, words have of producing delusion: and the influence exercised over the understanding of the people of the United States, by the practice of a Government, the yoke of whose oppression they have shaken off.
Art. 7. On the part of public functionaries, good behaviour is, on this occasion, regarded as a thing of course. If, on this occasion, and on the part of the functionaries in question, why not on every occasion, and on the part of functionaries in all departments, and of all ranks? Absolute monarchy would, on this supposition, be the simplest, and require the least expense of thought, to institute.
Art. 8. On the direct contrary supposition, was founded the general plan of the constitution of the United States: although the Judges there retain their office during good behaviour. What seems to be forgotten is—that in that Government, there is not, as in that from which that country has so happily made its escape, any such monarch, from whose dislocative power it was so necessary that the functionaries in question should be secured, seeing how assuredly it would be exercised for the advancement of his sinister interest, and by the sacrifice of that of the people.
Art. 9. Note that, under the here proposed constitution—it not being a federal one, over all functionaries in question, dislocative power by the hands of the constitutive, is capable of being exercised with much less difficulty than under the United States constitution. And this is one among the disadvantageous circumstances attached to a federal government, which, however, was in their case the only practicable one.
Art. 10. In the case of good behaviour, the way to secure its existence, is to take for granted the existence not of good behaviour, but unless excluded by adequate prevention, the very opposite of it.
Art. 11. Next as to intellectual aptitude or inaptitude. Perfectly compatible with complete absence of ill behaviour, as above, is the most perfect absence of appropriate intellectual aptitude.
Art. 12. Lastly as to active aptitude. Not less compatible with complete absence of ill behaviour as above, is the most perfect absence of appropriate active aptitude.
Judges’, &c., Remuneration.
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.
Of an Eleemosynary Advocate Appellate, [NA] per day.
Of a Registrar Immediate, [NA] per day.
Of a Registrar Appellate, [NA] per day.
Art. 2. At the charge, or by favour of no individual, can any such functionary, or any Depute of his, lawfully receive money or money’s worth, or benefit in any other shape, on account of anything done, or expected to be done, or forborne, by him, by means of his official situation. From unwilling hands, any such receipt will be extortion; from willing hands corruption.
Art. 3. From money or money’s worth, received to the use—not of the Judge himself, but of this or that person connected with him, by this or that tie of interest, self-regarding or sympathetic, the benefit accruing to the Judge, thence also the corruptive effect produced in his mind, may be of any magnitude, not exceeded even by that which it would be of, if received by the Judge, with his own hands, to his own use; nor would any participation, on the part of the Judge, be always necessary to the production of that effect. Yet for the act of any such other person, to inflict punishment on the Judge, would be altogether unjust, and highly mischievous: it would give to persons at large, in an indefinite number, the power of consigning to poverty and infamy, functionaries in any number, whose conduct in that situation had been pure of blame.
Art. 4. But, if of any act done by a Judge, the justice be to a certain degree dubious,—benefit in any shape, or promise thereof, conditional or unconditional, received by any connexion of his as above, may serve or help to form a ground for Appeal; for Appeal, and in case of participation proved, with or without dislocation, and with or without punishment, in the name of punishment, and compensation to party or parties injured.
Art. 5. On his responsibility, compensational and punitional in case of frivolous and vexatious accersition and interrogation, through insincerity or temerity,—any person may put questions, tending to the manifestation of the receipt, actual or expected, of any such benefit, by the functionary, or any person so connected with him as per Art. 3: and this, as well to any person so connected or supposed to be connected with him, or to any person at large, as to the functionary himself, in like manner, as per Section 16, Partiality obviated: and for procuring upon occasion, by accersition, prehension and adduction, or epistolary interrogation, as the case may require, the requisite sources of evidence, the same means will be employed as in the case of a suit at law.
Art. 6. As to the Judge, if no such occurrence has taken place, no harm results to him; if any such occurrence has had place, still no wrong is done to him by the divulgation of it. If in his conduct there be nothing wrong, nothing done by any other person, howsoever connected with him, can render it so.
Art. 7. In the case of the Immediate functionary,—added to the pecuniary remuneration, and the natural and inseparable power and dignity, is the encouragement afforded by the exclusive prospect of promotion, to the correspondent office in an Appellate Judicatory, with its superior power and dignity and its comparative ease, as per Section 25, Judges’, &c., Attendance: namely, by immunity from Night and Out-door duty, and from the obligation of holding personal converse with the promiscuous multitude: the subject matter of decision being, in an Appellate Judicatory, composed exclusively of the matter of the record, transmitted from the Immediate Judicatory, with or without argumentation thereupon.
Art. 8. In the case of the Depute permanent, added to the inseparable power and dignity is the encouragement afforded by the exclusive prospect of location as principal in an Immediate Judicatory, and thence of promotion to the correspondent situation in an Appellate Judicatory.
Art. 9. No services, no remuneration. For the manner in which service and remuneration are knit together, see Section 25, Judges’, &c., Attendance.
Art. 10. By the pecuniary competition, (as to which see Section 28, Judges’, &c., Locable who,) antecedently to experience, no assurance could be given, that, how large soever the appointed salary, it might not be reduced to 0, or even to less than 0: more than the salary was worth, being given for it.
Art. 11. In France, under the ancien regime, in the sort of Judicatory styled a Parlement, scarcely (it is believed) did the emolument in all shapes, attached to the situation of Judge, amount to ordinary interest upon the capital expended in the purchase of it. Extortions, it is true, were enormous. £1 is incidentally spoken of by Linguet in one of his Plaidoyers as exacted for the copy of a decree: a sum which, in that place and time, would go at least thrice as far as a sum of the same name would now in England. This exaction is faithfully copied by their fellow disciples of the Roman school, in Scotland.* Enormous the extortion; but correspondently enormous the multitude of those among whom the produce came to be divided.
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.
Art. 13. It is composed of a variety of other circumstances.
1. The badness of the laws, to which the class of Judges in question are employed in giving execution and effect: those laws, having for their object and effect—and in a very large proportion—the advancement of the particular and sinister interest of the ruling one, and the Aristocracy; sinister, because promoted at the expense, and by the sacrifice of, the interest of the vastly greatest number, of a whole people.
Art. 14. 2. The almost total absence of the applicable securities for good conduct: those securities, of which so ample, and it is hoped efficient, a list is to be seen in Section 32 of this same chapter.
Art. 15. 3. Of these same Judges the situation is such as to add to the power, the inclination, to put to the most mischievous uses, these same mischievous laws: imposing in a variety of ways, (not less, but more burdensome, by being indirect,) taxes to and for their own particular benefit, on the whole people.
Art. 16. Suppose, for argument’s sake, instead of being in appearance (which, however, as will be seen, they are not in reality) unpaid, they were paid, would the mischief they are productive of, be done away or so much as lessened? On the contrary, it would be increased. Increased it would be by the whole amount of the tax. It would be increased not only by the burden of the tax, but by the additional badness of conduct, of which the additional opulence would be productive. As to this, see Ch. ix. Section 15, Remuneration.
Art. 17. But putting aside casual emolument to casual receivers as above, from impure sources, taking for the subject of consideration the state of universal practice, it is not true that, strictly speaking, they are altogether unpaid. Unpaid by salaries, yes; unpaid by fees, no.
Art. 18. Somebody, Esq., or Sir Somebody Something, or my Lord Somebody, does not, it may be said, receive the money into his own hands, or convey it into his own pocket. In general, probably not: the hands it is received into, the pocket it goes into, are those of his clerk.
But this same clerk is a protegé, a dependant of the Squire, the Baronet, or the Lord. The fees, if they add not to his opulence, add to that portion of his power, which is in the shape of patronage.
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.
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.
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.
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.
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.
Judges, &c., Locable who.
Art. 1. To render a person locable in the situation of Judge Immediate, necessary are two qualifications, experience and irreproachableness: experience, that is to say, appropriate experience; when under the operation of this code, there has been time for the acquisition of it: irreproachableness from the beginning, and at all times. Follow here the mode in which the experience will be ascertained, and that in which the irreproachableness will be proved.
Art. 2. After the expiration of the original preparation period, as per Art. 22, no person will be locable in the situation of Judge Immediate, unless he has served in the situation of Judge Immediate Depute, for at least [two] service years.
Art. 3. A service year is, on this occasion, composed not of all the days that have elapsed, but of those days alone, during which, by the person in question, the service has actually been performed.
Art. 4. During the original preparation period, as per Art. 22, during which no person can have as yet fulfilled the two service years, as above, any person who, as per Arts. 14, 15, has given proof of irreproachableness, may, at the discretion and on the responsibility of the Justice Minister, be located in the situation of Judge Immediate: except as above, at the expiration of that time, no person is thus locable, who has not fulfilled his two service years, as above.
Art. 5. I. Appropriate experience, how proved. For ascertaining and making known at all times what individuals have become qualified, by experience, a complete set of Judge Deputes, Individual Service Calendars, and an Annual aggregate Service Calendar will be framed and preserved: the Aggregate being composed out of the Individual Calendars.
Art. 6. In a Judge Depute’s Individual Service Calendar, on each day of the year, on which the individual has served in that character, entry is made of the number of hours during which he has on that day served.
Art. 7. In this Calendar, a man’s years of service are determined—not by the interval between the day on which he first began to serve, and the day in question, but by the number of hours during which he has served. Days in two years, say 730: serving hours in a day, suppose 10: to complete the two service years, service during 7,300 hours is, on this supposition necessary. Of these two service years, fulfilment may have taken place in the time of two solar years: but at the end of any greater length of time, it may be that it has not taken place.
Art. 8. To cause set down on each day in this Calendar, the number of hours during which the individual has, in the course of that day, served, is among the duties of the Registrar; and, on the day in which the two service years have been completed, he enters notification thereof, in these words:—“On this day,” (naming the individual,) “his two service years were completed.” For the mode in which entry is made of the facts forming the materials of this Calendar, see Section 17, and Ch. xiii. Judges Immediate.
Art. 9. If, after serving in one Judicatory, a Judge Depute serves in another, as often as such migration takes place, he carries with him a copy of his Service Calendar, authenticated by the Registrar’s signature.
Art. 10. Within [NA] days after the termination of each solar year, the Registrar of each Judicatory, transmits to the office of the Justice Minister, a list of the several persons who, in the course of that year, have been serving in that Judicatory: whether as Judge Deputes permanent, or Judge Deputes occasional: adding to their respective names, the number of hours, during which, in the course of that year, they have respectively served, reckoning from the day on which they respectively began to serve. Of such part of this matter as regards each person, is formed his Individual Service Calendar.
Art. 11. Within [NA] days after the termination of each solar year, from the above-mentioned Individual service Calendars, the Justice Minister causes publish the Annual Aggregate Judicial Service Calendar of that year: a copy he causes transmit to every Judicatory, as well Appellate as Immediate; and in each Justice Chamber, a copy printed in conspicuous characters is kept hung up for universal inspection in a conspicuous place.
Art. 12. In this Calendar are contained the lists which follow:—
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.
4. List of all persons, who, having served in the situation of Judge Immediate, have been promoted to that of Judge Appellate, with the several particulars last-mentioned, and the solar year month and day on which, the Immediate Judicatory from which, the Appellate Judicatory into which, and the Justice Minister by whom, the location was made, also, the number of hours served in each one of the three situations, as above. Name of this list, The Promoted List.
Art. 13. For the preparation of these Calendars, by the Justice Minister, blank forms will be caused to be drawn up, and, in types of as large sizes as conveniently may be printed; and by him copies thereof will be transmitted to the several Judicatories, as well Appellate as Immediate: in each Judicatory, they will be kept hung up in the several Justice Chambers, so as that the contents, with the manuscript entries, in proportion as made, shall be as easily visible as may be to all eyes.
Art. 14. II. Irreproachableness, how proved. A vacancy having place in the situation of Judge Immediate, antecedently to the locating of a successor, the Justice Minister, by letter addressed to the Registrar, makes known the proposed successor, at the Judicatory in which he is or has last been serving; as likewise, if it be a different one, in the Judicatory in which he is proposed to be located. In the Judicatory in which he is or has last been serving, on the next day after receipt, the letter is, by the Registrar, proclaimed, and attached to that same Judge Depute’s Individual Service Calendar, therein kept, with invitation in writing, and time sufficient given, to all persons so disposed, to come forward, and make any such objections, as they respectively think fit to make, to the intended choice: and to this invitation, publicity is given, by all such means as the circumstances of the two several places afford.
Art. 15. From the day on which such proclamation has been made, the proposed Locatee, being present in the Judicatory, in which he is, or has last been serving, and the Judge Principal, or, in case of his necessary absence, some Judge Depute, taking the judgment seat, any person who has any objection to make, comes forward in the character of Pursuer, and the inquiry is conducted on the same footing as in the case of a penal suit. In conclusion, report is thereupon made by the Registrar to the Justice Minister: the Justice Minister, thereupon, by an appropriate instrument, declares his perseverance in the proposed location, or withdraws it, as to him seems most meet.
Art. 16. From the very commencement of this Code, the test thus afforded of irreproachableness, will be applied. On every vacancy in the situation of Judge Immediate, the Justice Minister, when he sends to the Judicatory a probationer, will place on the judgment seat, along with a person to officiate as Registrar, a person who, during the probation, shall officiate to that purpose as Judge.
Art. 17. III. Comparative inaptitude excluded. In the situation of Judge, an early formed habit of impartiality is an essential security for the exercise of that virtue on each succeeding occasion: a security not only for right inclination, but for right judgment;—not only for the moral, but for the intellectual branch of appropriate aptitude. When, for a Judicial situation, superior aptitude can be secured—to admit inferior instead of it, would be to act in direct repugnance to the ends of justice. So soon, therefore, as in sufficient number, there are persons in whose instance, the best security that the nature of the case admits of, for a formed habit of impartiality, has been afforded by appropriate practice,—no person, by whose habits a reasonably presumable comparative inferiority, in respect of that quality has been demonstrated by corresponding inexperience, can therefore be admitted into this same situation consistently with due regard to those same ends.
Art. 18. Nor of the consequent exclusion will hardship be in any case the result. Persons, preferably disposed for these occupations respectively, will seek employment, each of them in that to which, in his own judgment, by appropriate aptitude in every shape, and at any rate by inclination, he is best adapted. Neither in the case of the Government Advocate nor in that of the Eleemosynary Advocate, can his remuneration, in all shapes taken together, pecuniary included, be inferior to that with which he is himself well satisfied. As to the professional lawyer, in compensation for honour, his prospects hold out to him pecuniary remuneration, in a quantity to which it is scarcely in the power of competition, to set any limits; while in the case of those to whose labours in the same field, but performed for different purposes, public honour is attached, what remuneration is allotted, in a pecuniary shape, will necessarily be confined within limits, which to any degree may be narrow ones.
Art. 19. Nor yet, need any individual take as a reproach to himself, the observation of the temptation to which, by his occupation, he stands exposed. The stronger the natural sinister propensity, the greater the honour to him by whom it is overcome.
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.
3. Persons having served in the character of Professional Lawyers, or Probationary Professional Lawyers, as per Ch. xxiii.: for, in their instance, the appropriate endeavours having unavoidably been employed, in promoting injustice in favour of delinquency in all manner of shapes,—delinquency, of which these advisers and assistants, cannot in general, any more than the delinquents themselves, fail to have been conscious,—an indifference as between right and wrong, as between justice and injustice, and an habitual endeavour to cause wrong and injustice, with the natural accompaniment and instrument, mendacity, to prevail,—cannot but be naturally, and not unreasonably, expected at the hands of persons so circumstanced. Nor the less true is it—that the stronger the natural sinister propensity, the greater the honour to him by whom it is overcome.
Art. 21. IV. Ulterior intellectual aptitude secured in future. In Ch. ix. Ministers collectively, Section 16, Locable who, and Section 17, Located how,—is exhibited a general scheme of public instruction, for functionaries of the erudite class in the several Administrative Subdepartments: of which distinction notice is also taken in Ch. x. Defensive Force, Section 4, and Ch. xvi. Quasi-Jury, Section 2. Whether by functionaries belonging to the Judicial department, this same benefit shall or shall not be shared, can scarcely be a matter of indifference. In the whole field of human action, no imaginable occupation can be assigned, the business of which is not, in some way or other, liable to come within the cognizance of the functionaries employed in Judicature: most particularly, of those from whose situations the matter in dispute, whatsoever it be, receives its effective decision.
Art. 22. Accordingly, a thing to be desired, is—that so soon as the number of those by whom this benefit has been shared, is risen to such a magnitude, as to contain in it a number, able and willing to afford an adequate supply, to the several magisterial situations in the Judiciary department, Deputes permanent as well as Principals, included,—no person, who has not shared in that same benefit, should be locable in any one of those same situations. To make observation and declaration of the time when society is ripe for improvement in this shape, will be among the cares of the Legislature.
Art. 23. Example:—Earliest age at which a person shall be employable as Judge Depute permanent, suppose twenty-one years: if so, after completion of his two service years, as per Art. 2, the earliest age at which a Judge Depute permanent, will be locable in the situation of Immediate Judge Principal, will be twenty-three years. Anterior to the age of twenty-one, there will be ample time, for a person to have reaped the benefit of that same General instruction system, in its full extent.
Art. 24. By the original preparation period, understand the length of time between the day of the commencement of this Code, and the day on which, by the completion of their two years’ necessary term of service, in the capacity of Judge Depute [NA] persons, have entitled themselves to be placed as per Art. 12, on the Locable Fulfilled list, by serving either as Judges Immediate Principal, or as Judges Immediate Depute.
Art. 25. I. Immediate Judge’s Qualification. From and after the expiration of this same original preparation period, no person will be entitled to be located in the situation of Immediate Judge Principal, unless and until his name has been duly entered on the said Locable Fulfilled List.
Art. 26. II. Immediate Government Advocate’s Qualification. Nor as Government Advocate, unless and until his name has been duly entered on a corresponding list, intituled the Government Advocate’s Locable Fulfilled List.
Art. 27. III. Immediate Eleemosynary Advocate’s Qualification. Nor as Eleemosynary Advocate, unless and until his name has been duly entered on a corresponding list, intituled the Eleemosynary Advocate’s Locable Fulfilled List.
Art. 28. IV. Immediate Registrar’s Qualification. Nor as Immediate Registrar, unless and until his name has been duly entered on a corresponding list, intituled the Immediate Registrar’s Locable Fulfilled List.
Art. 29. Appellate Judge’s Qualification. Nor as Judge Appellate Principal, unless and until his name has been duly entered on a corresponding list, intituled, The Judge Appellate’s Locable Fulfilled List.
Art. 30. To be entered on the Judge Appellate’s Locable Fulfilled List, after the expiration of the original preparation period, the functionary must have served for at least one service year as Judge Immediate.
Art. 31. During the original preparation period, for the qualification of a Judge Immediate Principal,—no person who has not served as Judge Immediate Principal, during one service year, will be locable as Judge Appellate, if there are [NA] persons who have served, each of them, during one service year, in the situation of Judge Immediate.
Art. 32. So soon as, during the preparation period, there exists any one of the functionaries mentioned in Article 22, who, in his probationary state, has served for the space of a service year,—no person who has not, for that length of time served in that same state, is capable of being located as Principal.
Art. 33. Appellate Government Advocate’s Qualification.
In respect of the appropriate experience, intellectual aptitude and irreproachableness, the same securities as those which, as per Articles 1 to 24 are provided in the case of Judges, will, mutatis mutandis, be employed in the case of Government Advocates in both grades. A Government Advocate Immediate will be located out of the list of professional lawyers.
Art. 34. Government Advocate General’s Qualification. So, in the case of the Government Advocate General. He will be located out of the list of Government Advocates.
Art. 35. Appellate Eleemosynary Advocate’s Qualification. So, in the case of Eleemosynary Advocate in both grades.
Art. 36. Appellate Judicial Registrar’s Qualification. So, in the case of a Judiciary Registrar in both grades.
Art. 37. Government Advocate General’s Registrar’s Qualification. So, in the case of the Government Advocate General’s Registrar. He will be located out of the list of Judiciary Registrars.
Art. 38. A person’s having served occasionally as Immediate Registrar Depute, will not prevent him from serving occasionally as Immediate Judge Depute; nor his service days, in that character, from being contributory to his qualification for being located in the situation of Judge.
Art. 39. A person’s having served occasionally as Immediate Judge Depute, will not prevent his serving occasionally as Registrar Depute, nor his service days in that character from being contributory to his qualification for being located in the situation of Registrar.
Judges, &c., Located how.
Art. 1. Judges, as well appellate as immediate, are all of them located by the Justice Minister: to wit, out of the persons, locable as per Section 28, Judges, &c., Locable who: and Ch. xxii. Section 1, Appellate Judges who.
Art. 2. So likewise Government Advocates, as per Section 28, and Ch. xviii. Immediate Government Advocates.
Art. 3. So likewise Eleemosynary Advocates, as per Section 28, and Ch. xx. Eleemosynary Advocates.
Art. 4. So likewise Registrars, as per Section 28, and Ch. xxi. Immediate and Appellate Judiciary Registrars.
Art. 5. Why not leave the function of locating all the several judiciary functionaries, in their respective official situations, in the hands of the members of the Supreme Constitutive—of those in whose hands the function of locating the possessors of the Supreme Legislative authority is located, instead of in those of a single functionary, himself located by the Executive Chief?
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.
That, with relation to the location of the members of the Supreme Legislative, the here proposed members of the Supreme Constitutive are not unapt, but on the contrary, in an exclusive degree apt, has been already shown. But to the case of the class of functionaries here in question, this same appropriate aptitude does not extend. For by league with a candidate for the judgeship, a single leader might, in the event of his success, acquire means of gratification for sinister interest to an indefinite amount.
Art. 6. On this supposition, between the leading individual in the character of patron, and the candidate for the judgeship, in the character of protegé, there would be a corrupt connexion: a connexion constituted by a community of particular and sinister interest, both acting in diametrical opposition to the line of duty, and universal interest. By the judge on every occasion, undue favour would be shown, not only to the leader himself, but to all persons specially connected with him, by any tie, whether of self-regarding interest, or sympathy.
Art. 7. Here then would be a Judge, who being located by the influence of the head of a party, and moreover by that same party continually exposed to be dislocated, (such at any rate is the arrangement here proposed,) would be in a state of constant dependence on that same party. Being in a state of dependence upon that same party taken as a whole, and at the same time, they individually in a state of dependence upon him, here, between the powerful functionary in question, and the most influential persons in the district, would be a sort of league, defensive and offensive, against all the rest. By partiality in their favour, impartiality in his breast, would, pro tanto, be destroyed, and the maximum of partiality substituted. He, making himself an instrument of depredation and oppression in every other shape for their benefit, they would all the while, give him their support, while exercising depredation and oppression for his own benefit, and for the benefit of the several other individuals specially connected with him.
Art. 8. On condition that the locative function be not in these same hands, an arrangement herein proposed is, that the dislocative function with relation to this class of functionaries should be in those same hands. By this means, against mal-practice in every shape, a security in favour of those whose interest is the universal interest, will be placed in their own hands. But in the case here in question that same security has no place. By that same sinister interest by which the corrupt and supremely unapt functionary has been once located in the situation in question, by that same interest will he at all times be located,—at all times preserved from being dislocated, and at the same time, all those by whom he has been injured, excluded from the faculty of obtaining relief.
Art. 9. True it is, that (especially under a form of government, arranged in other particulars in the manner here proposed) sooner or later the depredation and oppression having become intolerable, the evil would find its own remedy: under favour of that liberty of discussion, which could not immediately be extinguished, those who suffered by the malpractice being assiduous and united in their complaints to all other constituted authorities and to the Public-Opinion Tribunal, a party in opposition to the supposed ruling party would thus form itself. Between party and party here then would be a constant struggle. If the locating party were successful, there would be no redress; if unsuccessful, then one party judge, would succeed to another. Thus then instead of partiality at the expense of one side, would be substituted partiality at the expense of both sides. True it is, that by both sides, a bridle or check applied by the opposite interest and power of the other, would be felt: not less true is it, that in favour of neither of them would the power of that check be found adequately effectual. Mutual animosity would be kept alive by mutually and continually repeated injury.
Art. 10. True it is, that in all subordinate judicatories there would be the faculty of appeal. But altogether insufficient would be this remedy.
1. In the first place, in the very nature of the case, the benefit of appeal can scarcely by any means be placed within the reach of every individual. Such is the quantum of delay, vexation, and expense, with which (after everything has been done, that can be done, towards the extinction of evil in these several shapes) access to this remedy will continue to be obstructed.
2. In the next place, the disease, as it has place in the subordinate judicatory, so by the operation of the same causes, will it be seated in the superordinate, at any rate, unless a different mode of location be applied to the superordinate one.
Art. 11. So much as to want of moral aptitude. As to appropriate intellectual aptitude, it is possessed by the Supreme Constitutive in sufficient amount, with reference to location as applied to the Supreme Legislative. But as to the point here in question, the Constitutive is altogether debarred from competing with the Justice Minister.
Art. 12. Next, as to the not locating it in the hands of the Supreme Legislative. The reasons which apply to the case of the members of the Constitutive authority as above, may be seen applying to those of the Legislative: with a force equal in quantity, not; but in species, the same.
Art. 13. Lastly, as to the not locating it in the hands 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.
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.
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.
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.
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.
Judges, &c., Dislocable how.
Art. 1. A Judge, whether Immediate or Appellate, is at any time dislocable by the Justice Minister, (he proceeding in the exercise of his Judicative function, as per Ch. xxiv. Section 4, and not otherwise;) also, by the operation of any one of the efficient causes of dislocatedness, applying to the case of a Member of the Legislature, as per Ch. vi. Section 30.
Art. 2. So, a Government Advocate.
Art. 3. So, an Eleemosynary Advocate.
Art. 4. So, a Registrar.
Art. 5. If in any one solar year, the service-time of a Judge Depute permanent, as per Section 28, Locable who, falls short of [one-fourth] part of the maximum of a Judge Principal’s required service-time during that same period, his name is, on the first day of the ensuing solar year, eliminated from the list of Judge Deputes permanent: the conclusion being formed—that either the requisite closeness and punctuality of attendance is greater than he can endure, or, in the eyes of the Judge Principal, he is deficient in appropriate aptitude, absolute or comparative.*
Art. 6. A Judge Depute permanent is moreover dislocable by the several causes of dislocation, by which a Judge Principal is dislocable: see Ch. xiv. Section 2, Relation to Principal.
Art. 7. Thus in an Immediate Judicatory, so also in an Appellate.
Art. 8. So, a Government Advocate Depute permanent.
Art. 9. So, an Eleemosynary Advocate Depute permanent.
Art. 10. So, a Registrar Depute permanent.
Judges’, &c., Inaugural Declaration.
Art. 1. Use of this instrument. As in other high official situations, so in the present case, the use of an Inaugural Declaration is this:—to direct the attention of the public at large to those points in the conduct of the functionary, in respect of which, by the nature of his situation, he stands in the greatest degree exposed to the temptation of swerving from the line of duty: and in a more especial manner, to those on which the force of the political, including the legal sanction, not being so easily or effectually brought to bear, aid from the popular and moral sanction is most needed.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
When applied to, for exercise to be given by me to the preinterpretative function, I will with indulgence submit to any such inconvenience, as may be the result of deficiency of appropriate instructedness, on the part of a consultant suitor: yet not so, as to concur with him in the uneconomical consumption of that official time, for the beneficial application of which, other suitors are in waiting; at the same time, in case of a purposed design on his part to give existence to such waste, it shall be my care to apply such appropriate punishment as may be needful for the repression of evil intention, seeking its accomplishment by such means.
Art. 23. The above Declaration will be made by every judge, and a similar one, in so far as it appertains to their respective offices, will be made by every Government and Eleemosynary Advocate.
Art. 24. A copy of the above Declaration, printed in the largest type, conveniently employable, and on one side only of the paper, with the signature of the judge or other functionary at length to every clause, and at the end, the date of the day when signed, shall be kept in the Justice Chamber, hung up in a conspicuous situation, so long as he shall continue in office.
Judges’, &c., Securities for appropriate aptitude.
Art. 1. Principal and indispensable security, publicity of the procedure throughout the whole course of it from first to last. Exceptions, if any, minute in comparative extent; incidental and but temporary in duration: examinations, for example, productive of unnecessary and preponderant vexation, by disclosure of family or commercial secrets.
Art. 2. Instruments of publicity, the instruments of discourse in both its shapes—audible and visible—oral and written.
The theatre of Judicature, in form as well as dimensions, after the necessary regard paid to frugality, should be adapted to the reception and entertainment of the greatest number of persons that, in that state of comfort which is necessary to clear, correct, and complete conception, can receive at both inlets to the mind, (viz. hearing and sight,) information of what passes. In a country in which a corrupt benefit shared between the monarch and the judge is the actual main end of judicature, keeping the theatre of judicature as ill adapted as possible, to these its proper ends, is among the objects of a secret policy. For the judges, for their scribes, for the leading advocates, situations adequate in extent, sufficient for comfort, sufficient for sight and hearing, are provided. To jurymen, situations affording sight and hearing could not be refused: but, of the comfort that would be conducive to clear, correct, and complete perception, no inconsiderable share is commonly denied.
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.
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.
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.
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.
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.
2. Incorruptibility, in a passive way.
3. Incorruptibility, in an active way.
4. Publicity in general.
5. Secrecy in appointed cases.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
6. Instruments of communication and conveyance, in so far as any are employed in the conveyance of persons or things, applied to the purposes of judicature.
Art. 1. By a Justice Chamber, understand a Chamber in which judicial suits, and other judicial applications are heard.
Art. 2. In each Judicatory, if, besides the Judge Principal, there be one or more Judge Deputes, sitting at the same time,—to each such Depute must of course be allotted a separate Justice Chamber, during that same time.
Art. 3. These same Supplemental Justice Chambers, may be either appropriated, or occasional: appropriated, are all such as by original construction, purchase or hire, for a term certain, stand allotted to this purpose.
Art. 4. An Occasional Justice Chamber, will be every apartment, in which, by reason of deficiency in the number of appropriated Justice Chambers, a Judge Depute, whether permanent or occasional, at the time, holds his sittings.
Art. 5. Every Justice Chamber of the Immediate Judicatories will be provided at the expense of the Sub-district, those of the Appellate Judicatories at the expense of the District: in both cases by the Sub-legislature of the District, in concert with the Justice Minister.
Art. 6. On whatever occasion, any apartment is employed as an Occasional Justice Chamber, it will be the care of the Registrar, under the direction of the Judge Principal, to cause it to be fitted up, and stocked, in so far as may be without preponderant addition to the expense, on the same principle, and in the same manner, as the Principal Justice Chamber.
Art. 7. So order matters, that between every person to whom, for the exercise of his right, it is needful to hold converse with any other,—he may with the greatest facility hold converse with every such other: and this without disturbance to the business of the place.
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.
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.
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.)
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.
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.
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.
In the area of the Justice Chamber may perhaps be to be included, steps into the several elevated stations on each side.
Art. 15. Opposite to the elevated seats, as per Art. 13, will be less elevated seats for visiters. Each seat has a slight back for support of the individual sitting; and a desk for him to lean and occasionally write on.
Art. 16. A box or boxes will be provided for the waiting witnesses belonging to the suit which is being heard. These might be either distinguished from the visiters’ seats, in which sit the parties and witnesses belonging to other suits, together with the Probationary Lawyers, or not.
Art. 17. For visiters at large, galleries should be erected on each side of the area, and at right angles to it.
Art. 1. As instruments of discrimination, not as traps to catch respect, are peculiar habiliments here meant to be allotted to judiciary functionaries.
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.
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.
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.
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.
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.
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.
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.
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.
[* ]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  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.
[* ]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.
[* ]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.
[* ]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.