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CHAPTER XXIII. - 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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Professional lawyers, who.
Art. 1. By a Professional Lawyer, or say Law Practitioner, understand a person who, for remuneration, serves as Agent, or say Helper, or Helpmate, to any other person, on the occasion of his being engaged, or in contemplation of being engaged, in a course of litiscontestation, or in the framing of written evidentiary instruments, composed of the matter of preappointed evidence, and as such framed with a view to eventual litiscontestation: or, on the occasion of application made to a judicatory for any purpose. For the several occasions on which, and purposes for which, application may be made to a judicatory, see Procedure Code, Ch. viii.
Art. 2. Litiscontestation is a term employed to signify indiscriminately the course of operation gone through on the occasion of a suit at law, by him whose station is on the demandant’s side, and that gone through by him who is on the defendant’s side.
Art. 3. Coincident in signification, wholly or partially, with demandant, are, in English-bred Law, claimant, plaintiff, complainant, orator, pursuer, prosecutor, and perhaps others: one employed in one judicatory, another in another.
Art. 4. Upon clearness, as well as completeness, in anything like an adequate degree, an absolute veto is on this occasion put by the nature of the case, improved by sinister industry: what is here seen is, the nearest approach that can be afforded.
Art. 5. Coincident in like manner with Defendant, is Defender: perhaps also some others.
Art. 6. Coincident in signification with litiscontestation, in some sort, that is to say partially, is litigation; and this last is the term most commonly employed. But to the import of the word litigation has become attached, in the mind of him who employs it, a sentiment of disapprobation, in relation to the act or practice designated by it; litiscontestation being the neutral, litigation the disapprobative, or as it has been styled dyslogistic, or cacologistic appellative, applied to the same course of action.
Art. 7. Out of the association has grown a most pernicious vulgar error or fallacy error, on the part of those who are not aware of the misrepresentation thus made: fallacy on the part of those who are. He, whose endeavour it is to obtain redress for errors, and he whose endeavour it is to do wrong by force of law, are confounded by it, and represented as being persons of the same character. He whose endeavour it is to save himself from an unjust demand, and he whose endeavour it is to save himself from a just demand, are involved in the same opprobrium; and thus it is, that under the notion, or on the pretence of repressing litigation, the rich and powerful combine with one another in consummating the oppression of the poor and helpless.
Art. 8. In this class of practitioners, the nature of the case admits of four principal subclasses; or what comes to the same thing, the same person may, as occasion calls, act in any one or more of so many distinguishable capacities: exercising, in the service of individuals, individually considered, or considered as united in bodies, so many distinguishable functions. These subclasses are, or may be, thus denominated.
1. Attorneys-at-law—or say, Law Managers. In this character, the professional helpmate of the party conducts the proceedings in the suit on his side. In its original signification, this appellation is not coextensive with the term manager: for it supposes the party not to be attendant in the Justice Chamber, in the presence of the Judge: in a word, it is synonymous to substitute or proxy: suppose the party present, the Lawyer who acts as his helpmate, (acting in this case, as well as the other as manager,) is not his substitute, or say proxy, but may with propriety be termed his assistant.
2. Advocates, or say Law Administrators, Pleaders, or Argumentators. This term, though employable in both cases, brings to view more readily the case where the pleading is performed by word of mouth, than the case where it is performed by writing.
3. Counsellors, or say Law Advisers; to wit, in relation to the commencement, the continuance, and the termination of a suit.
4. Notaries—so styled under Rome-bred Law: under English-bred conveyancers. In this character, the Lawyer frames or assists in framing, evidentiary instruments, as per Art. 1; and in particular instruments of contract and other instruments of law conveyance, by which rights and obligations are created, and conveyed between one person, natural or fictitious, and another.
Litiscontestational Class, one only.
Art. 1. Into whatsoever elementary functions the aggregate of the functions of a professional lawyer has, as per Section 1, been elsewhere considered as distinguished, under this code, whosoever is entitled to exercise any one of these functions, is entitled to exercise every other. For the manner in which a person’s title to exercise them is constituted, see Section 4, Locable who.
Art. 2. In this as in other professions and occupations, persons may act in partnership; on the occasion, or in contemplation of any suit, professional lawyers may, in any number, act as partners. But for no communication as between one and another, are they, in their dealings with their clients, or with adverse parties, entitled to make any separate charge. One partner, for example, cannot, by calling himself Attorney or Managing Lawyer, entitle himself or a partner of his, to make a charge on their common client, or in case of costs defrayed by an adversary, on the adversary, for putting a state of the case to another partner, for his instruction in pleading before the Judge; nor to the same or a third partner, for giving his advice as to the commencement, continuance, or termination of the suit, or for the purpose of his framing an instrument of procedure, on the occasion of the suit, or an instrument of conveyance at large, or an instrument of contract.
Art. 3. Exclusion, why put upon the division of the profession, into the customary classes, two or more: namely, the attorney and the advocate, with or without ulterior division made of each?
Answer. Reasons. 1. The greater the number of these divisions, the more completely is all responsibility, and feeling of responsibility, done away.
2. The more effectually is the system of falsehood—licensed falsehood—and by the license rendered effective, as well as unpunishable falsehood, in its several shapes of insincerity and rash assertion, established.
3. The greater the number of these mercenaries, the greater the number of assistants who, in one and the same suit, must be paid.
4. Not only in proportion to their number must the pay be increased, but in a higher proportion. For among these mercenaries, distinctions in respect of rank, naturally and necessarily have place; and the higher the rank, the more expensive the remuneration: remuneration of the highest rank for the same quantity of time and labour, or even for much less, being several times the amount of remuneration for the lowest, not to speak of the intermediate ones.
5. The more numerous, the higher paid, and thence the more opulent, the body of these mercenaries taken in the aggregate, the stronger is the resistance which, while they cannot but be disposed and prepared, they cannot but be able to oppose to every alleviation of the evil by which they profit, and out of which, that which to them is good, is extracted.
Art. 4. For rendering it the more clear, how the mendacity license is established and acted upon, a few words of explanation may have their use.
Suppose no such assistants to have place, the party standing alone, speaking with the instrument of punishment hanging over his head, with the thread capable of being every instant cut, upon the appearance of the offence, the danger of mendacity, and consequently the evil flowing from it, is at its minimum. Remove now from off the stage the party himself, and bring on in his place the mercenary assistant, and constitute him his substitute. The party, let him have uttered ever so many falsehoods, cannot be punished for any one of them: for it is not to the Judge, it is only to the party’s own assistant, hired by him, and dependant on him, that the falsehoods are uttered: what they are, and how many they are, are matters utterly unknown to the Judge. In the person of the party they are therefore all of them unpunishable.
To all these several falsehoods, if there be no punishment to restrain him, the hired substitute will of course give utterance: i. e. to all such as, in his eyes, are of a nature to give support to his client’s cause, which, by the hire, has been rendered his cause. As the principal with whom they originated cannot be punished for them, so neither can the substitute, by whom they have been adopted, uttered, and put to use: for, as to the fact of their having been stated to him by his client,—in the assertion of this fact by the supposition, there is nothing but what is true. False as they may have been, it was not for him to presume their falsity: it was not for him to cast this stain upon the character of this his customer, this his benefactor: if, considering the nature of them, the credence given by him to them was too easy, here was nothing more than an error in judgment: and an error in judgment is not among those things for which punishment can reasonably and usefully be inflicted.
Art. 5. To evil in this shape, the established systems afford not any of them, any tolerably efficient remedy.
But to this same evil, the here proposed system affords a remedy, nor that an inefficient one.
In the first place, if to the Judge, acting under the check imposed upon him by the circle of Judiciary Inspectors, it is, from the nature of the case, sufficiently manifest that, in the intercourse between client and lawyer, falsehoods were uttered by the client, to the end that, through the lawyer they should find their way to, and make their impression on, the faculties of the Judge; and that of these statements, the falsity could not but be recognised by the experience and discernment of the man of Law, here, on the part of this said man of Law, is insincerity: and, for falsehood in this shape, the substitute may, with as much facility and justice, be made to suffer, as the principal, for the mendacity. And so in case of rash credence, supposing the consciousness of the falsity not sufficiently certain, and the misrepresentation to have had no other cause than an error in judgment; though that error, so clearly the result of a culpable want of attention, as to be, in consideration of the injury to the parties on both sides, not unjustly punishable.
Upon occasion, justice to a degree still more extensive and more effectual may be done. Interrogatories having been put to the professional substitute, and his answers set down, the principal his client, might afterwards be convened before the same Judicatory, and be in like manner examined: examined, in the first place separately, and afterwards in confrontation with the man of Law: effectual arrangements being, in the meantime, taken, to prevent them from giving themselves the benefit of any falsehood-assisting intercourse.
Fields of Service.
Art. 1. Coextensive with the logical fields of service of the Judges taken in the aggregate, is that of every Professional Lawyer: of the whole field of law actual and possible, no part is there on which professional, and thence, remunerated help, to a party, may not be indispensably necessary to the attainment of the ends of justice.
Art. 2. Coextensive, likewise, with that of the Judges, taken in the aggregate, is his local field of service. He who has been admitted in any one Judicatory, may serve in any other.
Art. 3. As between Immediate and Apellate Judicatories, essentially necessary to aptitude of service in an Appellate, will previous service in an Immediate Judicatory be. But, so manifest will be this necessity, that while any professional law helper, who has served in an Immediate Judicatory, is to be had in an Appellate Judicatory, none who have not previously served in an Immediate Judicatory will, naturally speaking, be employed.
Not unfrequently, to wit, when in the eyes of a client, able to bear what additional expense may be necessary, the importance of the suit warrants that same additional expense, he who is helper to the party in the Immediate, will, in case of appeal, migrate with the suit to the Appellate Judicatory.
Art. 4. Where two or more Law Practitioners act in partnership, one partner may, on the occasion of a particular suit, make this migration, without interruption, and thence without detriment, to the general course of the partnership business.
Art. 5. Under English-bred Law, under which both logical and local fields of judicial service are broken down into such an indefinite multitude of fragments, the confusion has produced a correspondent, though not an equal, degree of diversification and complication in those of the Professional Lawyer. An attorney in this or that judicatory cannot make his appearance in this or that other: and so as between Barrister and Barrister.
Art. 1. When the period of preparation (as to which, as applied to the case of Judges, see Ch. xii. Judiciary collectively, Section 28, Locable who) has elapsed, no person is admissible to serve as Professional Lawyer whose name does not stand upon an appropriate list,—say the Professional Lawyers’ List.
Art. 2. No person is thus locable in the Professional Lawyers’ List who has not served out his service time, in the character of Probationary Professional Lawyer, after his name has been entered upon the Probationary Professional Lawyers’ List.
Art. 3. After the expiration of the above-mentioned appropriate preparation period, as per Art. 1, no person is locable in the Probationary Professional Lawyers’ List till he has been located in the Administration Locable List, as per Ch. ix. Ministers collectively, Section 16, Locable who: he is then locable by a Location instrument, signed by the Government Advocate principal, or the Eleemosynary Advocate principal, of any Immediate Judicatory.
Art. 4. Until the preparation period has elapsed, any person is thus locable on the Probationary Professional Lawyers’ List, by the Government Advocate principal, or the Eleemosynary Advocate principal, as per Art. 3.
Art. 5. In the case of a Probationary Professional Lawyer, the service time is composed of [four] service years. For the meaning of a service year as contradistinguished from a solar year, see Ch. xii. Judiciary collectively, Section 28, Locable who.
Art. 6. Of the four service years, the two first are served in the Judicial Inspectors’ Gallery, as per Ch. xvii.
Art. 7. Of the two others, any portion may be served—either in the Inspectors’ Gallery, as above, or by serving gratuitously in the character of Eleemosynary Lawyer, in the service of helpless litigants: as to these, see Ch. xii. Judiciary collectively, Section 13, Justice for the Helpless, and Ch. xx. Eleemosynary Advocates.
Art. 8. Whatsoever time has been served by such Eleemosynary Lawyer in the Judicatory, will have been entered of course on the Record: whatsoever has been so served by him elsewhere than in the Judicatory, will be ascertained by examination. To the Judge it will belong to have care, lest, in any instance, a portion of time, stated as having been so employed, has not been so employed, or has been needlessly so employed, for the purpose of its striking off so much service time in the Inspectors’ Gallery.
Art. 9. After the expiration of the preparation period, as above,—the age at which a person will be locable on the Probationary Professional Lawyers’ List, will be [nineteen] years. This will give for the age at which he may commence service as Eleemosynary Lawyer, say twenty-one years; and for the age at which he is locable on the Professional Lawyers’ List, twenty-three years: the same number of years as that which, as per Ch. xii. Section 28, is necessary to render a person locable in the situation of Immediate Judge principal. This will leave for his taking the benefit of the General Official Instruction system, as per Ch. ix. Ministers collectively, Section 16, Locable who, a period, having for its commencement an age dependent on the particular circumstances of each individual, and ending at the above-mentioned age of nineteen years.
Capacity as to Offices.
Art. 1. A Probationary Professional Lawyer, if he has not commenced acting in quality of Eleemosynary Lawyer, as per Section 4, his service being as yet confined to that of Judiciary Inspector, is not thereby disqualified for any office.
Art. 2. But, if he has commenced acting in that quality, certain offices and situations there are from which he is thereby disqualified. These are those of—
1. Judge, Principal, or Depute permanent.
2. Registrar, Principal, or Depute permanent.
Art. 3. For certain Judiciary offices and situations he remains not disqualified. These are those of—
1. Government Advocate, Principal, or Depute permanent.
2. Eleemosynary Advocate, Principal, or Depute permanent.
Art. 4. If it be with consent of all parties, he is not disqualified from serving as Depute occasional in any one of those above-mentioned offices. Till located in the Professional Lawyers’ list, his hired and unavoidable course of partiality has not as yet commenced.
Art. 5. Why exclude Professional Lawyers from the capacity of being located, or officiating as Judges?
Answer. Because, in quality of his profession, a law practitioner, in the pay of a litigant party, acts under the impulse of an interest incurably adverse to the several ends of justice. The whole train of his thoughts and occupation engages him in the perpetual endeavour to promote injustice. By injustice in that shape in which it stands opposed to the collateral ends of justice, his personal and sinister interest may be served in the most immediate way, and in this case, at the expense of his client, as well as that of the adverse party. By injustice in the shape in which it stands opposed to the direct ends of justice, his personal and sinister interest is served by him in a less immoderate, though not less extensively effectual way: and in this case, in conjunction with the personal and sinister interest of his client.
Art. 6. In the case of a Judge, this may be in a no less degree true; but, in the case of the Judge, the correspondent propensity is susceptible of checks, such as, when united, afford a promise of being effectual: not so, in the case of the assistant of a party litigant, engaged in his service by hire.
In the case of the Judge, disrepute is attached to the exercise of partiality, adverse to the ends of justice: not so, in the case of the hired law practitioner.
In the case of the Judge, acting under the eye of the Public-Opinion Tribunal, unjust partiality can scarcely have place and act with effect, without being manifest, and in such sort manifest, as to be perceptible to several authorities, in the power of any one of which it is to remove him out of his situation: whereas, in the case of the hired law practitioner, whose intercourse with his client is carried on in secret, unjust partiality, having for its effect and object the assisting him, howsoever widely in the wrong, to gain the suit, as if he were in the right, may have place, and to an unlimited extent, without being to any other eyes perceptible.
Art. 7. Only in so far as in the exercise of this profession, it is the effect of disrepute to diminish the quantity of his professional gains, can disrepute be regarded as affording to this propensity any effectual check. But it is not in the nature of the case, that by any disrepute which can in this case attach itself, any such diminution should be effected. To insincere litigants, the greater the effect with which the propensity appears to operate to the advantage of his clients, the stronger is the inducement it presents to them for engaging him in their service. As to the sincere litigant, dishonest means, it is true, he has not, as such, in his own eyes, any need of, nor, therefore, any adequate motive for employing in preference a law practitioner whose disposition affords an assurance of his readiness to employ such means. But that same propensity which affords an assurance of his readiness to employ even dishonest means, affords an assurance of corresponding energy and activity in the employing of honest and unexceptionable ones: and few indeed are the litigants, howsoever sincere, who seeing, as they think, the party who, being adverse to them, is in the wrong, about to gain the suit by dishonest means, would not, rather than see the wrong to prevail, and feel it prevail, at their own expense, be content, under a reasonable prospect of success, to see him employing similar dishonest ones in their favour.
Art. 8. For the situation of Judge, under this Code, preparation is made of a class of men whose interests, when the checks to injustice that apply to them are taken into account, will be seen to be in a state uniformly conducive to the ends of justice. From injustice, opposite to the direct ends of justice, they can have no tolerable chance, nor therefore, any natural hope to gain profit in any shape; while, at the same time, they have everything to suffer and to apprehend from it: and so, as to injustice, opposite to the collateral ends of justice. They are men who must have served an apprenticeship, and that an active one, in the school of justice—the Justice Chamber. Such being to be had, palpably absurd would it be to take any whose interests have been in continual opposition to these same ends, trained in the two schools of injustice, the Attorney’s office and the Advocate’s chamber.
Art. 9. True it is, that besides being employed in the endeavour to give success to the enterprises of a wrong-doer, or saving him from condign punishment, he is also employed in the endeavour to obtain, for the injured, compensation, and for the public, the benefit of the example afforded by punishment, at the charge of the wrong-doer: accordingly, of the two parts which the law practitioner is with equal constancy employed in acting, this is the only one which, on the occasion of the land which is continually poured forth on the profession, is ever brought to view. But whether it be in this way that he is employed or the other, is in every instance matter of chance, and to him it might seem, would therefore naturally be, matter of indifference. But on a nearer view, it will be seen that it is on the side of the wrong-doer that the bias of his affections will be sure to lean: for the clearer a man’s right is, the less is the need he has of such support: and the more atrocious a man’s criminality is, the greater is his need of it, and the higher is the reward which may naturally be looked for in return for it.
Art. 10. To the indiscriminateness of the hire and the support, and not to the occupation, does the necessity of the habitual insincerity stand attached. It applies not to him in whose instance the service is gratuitous. For in this case it is not so natural as to be generally presumeable, that a man will render his assistance to one who in his eyes is culpable, unless it be in the case of a particular friend, to ward off excess in the suffering to which he stands exposed: and no sooner does the conduct of his protegé present itself to his eyes as being to a notorious degree blameable, than public opinion will approve rather than condemn him in the event of his withdrawing it.
By his affection for his friend, suppose him even led astray from the path of sincerity and probity, the deviation is but the work of a moment: whereas, in the case of the law practitioner, without any deduction worth bringing to account, it occupies one half of his life.
By absurdity and improbity, coupled with the grossest inconsistency, exclusion under a variety of pretences has been put upon evidence, in consideration of the impurity of the source. No case is there in which it can be reconcileable to reason; but if there were a case, it would be that of the law practitioner, and more particularly when raised into power and impunity by the office of Judge. Under the denomination of a felon, a man who has been guilty of a single act of robbery or theft, is thus deemed incapable of ever speaking truth. But without uttering so much as a single falsehood, a man may have passed his whole life familiarized in the practice of robbery: whereas, without having passed it, in the continual practice of wilful falsehood, never in England could a man have been raised to the dignity of Judge. Not on the man who is hanged, but on the man by whom he is hanged, would the exclusion be put, if reason, not prejudice, were the guide.
Art. 11. For bringing the particular interest of the Judge as near as possible to coincidence with the universal interest, every expedient that could be found has been employed, and it is hoped not without success. But to bring the interest of the law practitioner into a direction other than diametrically opposite to the universal interest, is what the unalterable nature of the case has rendered absolutely impossible.
It is the interest of the law practitioner to raise and foment to the utmost, disputes and quarrels among relatives and neighbours. Among the duties of the Judge will be the putting litigants upon their guard against this sinister interest, and as often as he finds it at work to hold it up to public view. But, the Judge who was himself a law practitioner, and whose circle of intimates is composed of law practitioners,—what reasonable expectation can there be, that he will thus join with strangers against his familiar friends? that the wolf will thus join with the sheep against the wolves? Look at the English bar and benches. Special and casual of quarrel excepted, what confederates were ever more indefatigable than are those lawyers of the two classes—Judges and Barristers—in singing the praises of each other?
Art. 12. To the relation between the qualities possessed by the able Advocate, and the qualities desirable on the part of a Judge—sufficiently close for instruction is the relation between those possessed by a Procuress, or the keeper of a house of ill fame, and those desirable, on the part of a governess or mistress of a boarding-school for young ladies.
The Procuress being conversant in the arts employed in the destruction of female chastity, will be possessed of the experience capable of being applied to the preservation of it. By this same experience is any special security afforded for its being exclusively so applied? No: on the contrary, the result probabilized by it is rather the sale of the article in question to the best bidder, than the preservation of it.
The Advocate being conversant in the arts employed in the misrepresentation of law and fact—of everything, a correct conception of which is necessary to the exercise of justice, will be possessed of the experience capable of being applied to that uniformly desirable purpose. But in this same experience is any special security afforded for its being exclusively so applied? No: on the contrary, the result probabilized is—that it will be for the advancement of any purpose indicated by this or that particular and sinister interest of his own, in preference to the fulfilment of the ends of justice, where competition has place, that the extraordinary mental power in question will be applied.
Art. 13. In some parts of Italy there used to be a sort of man whose profession it was, in consideration of a fee, to lend his assistance to any man, whose desire it was, no matter for what cause, to ease any other man of the burthen of life: a Bravo was the appellation by which this species of professional assistant was denominated.
By what points was the brave gentleman distinguished from the learned gentleman? Answer. By these—
In a direct way, the life only of the adversary is the subject matter of the service rendered by the brave gentleman to his client: property only in this or that particular case; for example, where the client happens to be next in succession to the victim indicated. To the subject matter of the learned gentleman’s professional service, no such, nor any other limit, applies.
The learned gentleman is not sure of hitting his mark. But this is no fault of his: to the hitting it, no endeavours on his part are ever wanting. Read those high-treason trials, by which a learned gentleman, in reward for his services on that occasion, became not only a learned lord, but, moreover, the head of the law. See whether, on his part, any endeavours to cause the men in question to see their bowels torn out in due form of law, were wanting. Read the trials of Hardy and Horne Tooke.
The instrument of service employed by the brave gentleman is the hand. The instrument employed by the learned gentleman is the tongue.
The brave gentleman, if he can be laid hold of, is, for the service rendered by him, deprived of life by the conjunct services of a learned gentleman in his capacity of Advocate, and another learned gentleman in his capacity of Judge. Neither loss of life nor suffering in any other shape, is the learned gentleman exposed to experience in either of these his capacities.
For the sort of service rendered by the brave gentleman, a certain degree of disrepute never failed to attach upon the character of the brave gentleman, notwithstanding that one of the four cardinal virtues, namely fortitude, which his profession necessitated, and by which he was so pre-eminently distinguished. Instead of disrepute, transcendant honour is the reward which the learned gentleman receives, not only at the hands of the political, but at the hands of the popular, or say moral, sanction: not only at the hands of the ruling portion, but by the suffrages of the Public-Opinion Tribunal: and so will he continue to do until the bandage is taken off the eyes of that Judicatory, and the difference between right and wrong is become perceptible to it.
Art. 14. Neither to the brave gentleman, nor to the learned gentleman, is his honour, his good reputation, by any means without its value. Of the brave gentleman, the reputation consists in the fulfilment of his duty as to two descriptions of persons: to wit, 1, his clients: 2, his professional brethren, with whom on each occasion he is in alliance, in league, in confederacy.
Towards his client, his duty on each individual occasion consists in killing the troublesome person whom he stands engaged to kill: it would be violated, if, instead of that same troublesome person, he were to kill his employer.
Towards his client, the learned gentleman’s duty consists on each occasion in subjecting to capital or other punishment the troublesome person on whom he stands engaged so to inflict suffering: it would be violated, if, instead of that same troublesome person, he were so to deal with his client: or if, by design or negligence, he were to suffer the troublesome person to escape.
So, his duty consists in the endeavour to save his client from merited punishment, whether in the shape of mortal or less afflictive suffering: that same duty would be violated if he neglected to use any means in his power to produce that same salutary effect: if he omitted, for example, to give utterance or support to any false assertion tending to the production of that same effect, how completely soever conscious of its possessing that same quality.
Art. 15. In England, on the part of the Judges, of all classes of men that are anywhere to be found, disregard to truth, love of injustice, and hatred of justice, have place and are in force and operation, to a degree (as will have been seen) altogether incapable of being equalled in any other country, civilized or uncivilized: of mendacity, nowhere has any such use been made: from mendacity, nowhere has any such profit been derived.
Out of whom are these English Judges chosen? Out of those professional lawyers who have been for the longest time habituated to the practice of profit-seeking and profit-reaping mendacity.
Art. 16. Of the two irreconcileable enemies to justice and happiness, force and fraud—force is the first that falls into disrepute: so, at length, though after a long interval, will fraud.
Your occupation, sir,—what is it?—a pirate’s, or what other? was, according to Homer, among the questions put to a stranger by Menelaus. In his observations on the English statutes—curious enough, says Judge Barrington, must have been that state of society in which a question to this effect could be put without design or apprehension of giving offence. Worded a little more in detail, the question might have stood thus: You are a plunderer, and for carrying on your business, a strong and lawless arm is the instrument habitually employed by you. Force was then and there the chief arbiter of human destiny.
Art. 17. From the time anterior to Homer, and the territory of ancient Greece, transfer the scene to England, or English-bred America.
You are of the Bar, sir, if I do not mistake? is a question which now-a-days in England or the United States, a gentleman may, with as little fear of giving offence, put to any other gentleman whom he meets. You are of the Bar—that is to say, the indiscriminate defence of right and wrong, and that for hire, is your occupation: and for the purpose of that occupation, falsehood—self-conscious falsehood, is an instrument which, without stint and without scruple, you are in the continual habit of employing.
Thus it is in the existing order of things: and thus of necessity, in every order of things, it must at all times continue to be.
But that which is not of necessity is, that for filling the situation of Judge, the individuals selected should, in every instance, be taken from this class,—nor so much as in any single instance.
Art. 1. Minimize expense. As, to all other parts of the expense of recourse to the power of justice, so as to this, such is the general rule. The less the remuneration given to persons of this class, so much the better for persons of all other classes. For, unless the services rendered by the functionary in question, in his capacity of Notary, constitute an exception, by whatsoever is given to a functionary of this class, is expense added to expense, vexation to vexation.
Art. 2. By fixation of prices—that is to say, by appointment of a fixed sum for each article of service—by this expedient, if it stood alone, in no other than a very inadequate manner could this desirable effect be produced. Written pleadings, paid at so much for so many words, being altogether incompatible with the only system of procedure compatible with this Code,—and of written instruments of procedure, all such as are in their nature susceptible of general application being provided for by printed papers, with blanks for the individual parts of the matter,—little would remain for the subject matter of charge besides the time employed on each occasion in the business: and how difficult it must be, not to say impossible, to pre-ascertain, for the purpose of fixing the remuneration, what shall be the quantity of time necessary to be expended in the performance of each particular business, for which there shall be a demand in each individual suit, is sufficiently manifest.
Art. 3. Under the here proposed system, several circumstances, however, contribute their aid towards the reduction of this part of the expense, independently of everything that can be done, by regulation applied in a direct manner by fixation of prices, as above. Examples are—
1. Exclusion of all written pleadings, as above.
2. Maximizing the generalization of all written instruments, as above.
3. Exclusion of the distinction between managing lawyers and speaking lawyers, as per Section 2, Litiscontestational Class, one only.
4. Exclusion for the most part of argumentation on the question of law, by the substitution of real law throughout, to imaginary law, and thence of all extra payment for pretending to delineate the features of a nonentity.
5. Rendering the substitution of the helpmate to the principal,—of the lawyer to the client,—a case of exception only: the generally exemplified case being the attendance of all parties on both sides in the Judicatory, in the presence of each other, as well as of the Judge: by which means, except in so far as highly penal cases form an exception, the demands on each side, and the evidence on which they are respectively grounded, will all commonly be brought to view at once.
Art. 4. The causes, by which the excess in the price paid to lawyers for their services, and thence the excessive amount of the burthen imposed on their litigant clients, is produced, will thus in a great part be removed; while, by a variety of arrangements directed to this end of such part of the burthen as cannot be taken off from the parties on both sides, the quantity imposed on those who are in the wrong will be maximized; and by that means operate with proportionable effect towards the reduction of the quantity of the like wrongs in future.
Art. 5. On reviewing the demand made by the lawyer for his service, the Judge will take into consideration—not merely the quantity of time actually employed, and of business actually done, but also what there was need for employing and doing: and this, whether length of time be regarded, or number of operations (journeys included) performed, or number and length of written instruments penned.
Art. 6. In an estimate formed of the quantum of remuneration, adequate on the occasion in question to the service performed by a professional lawyer, the quantity of time thereon expended cannot pass unheeded. But so far as regards time employed elsewhere than in the Judicatory, unless checked by the vigilance of the Judge, not only may time not employed in the service of the client be charged as so employed, but, for the sake of the remuneration, needless addition may be made to the quantity actually so employed.
Securities for appropriate aptitude.
Art. 1. Compensationally and punitionally, as a litigant or extraneous witness is responsible for statements mendaciously or temerariously false—so is a Professional Lawyer, for statements insincerely or temerariously false; to wit, as to anything which he professes to believe, of statements made by any such witness, or by any person whose statements, made or supposed to be made, on any other occasion, are, on the occasion in question, employed in evidence.
Art. 2. By a decree of a Judge Immediate, pronounced after due examination, and subject to Appeal, a Professional Lawyer may be eliminated out of the List of Professional Lawyers acting in that Judicatory.
Art. 3. On appeal, if the eliminating decree be confirmed, the Judge Appellate may extend the disqualification, to any, or all other Judicatories in the State.
Art. 4. One instrument of security, which applies peculiarly to the Professional Lawyer, is his direct and constant subjection to the power of the Judge: a subjection, less reserved than in the case of the Government and Eleemosynary Advocates: they being raised above him, by their official character.
Art. 5. The same publicity which enforces the Lawyer’s duty as towards his clients, enforces it also, as towards his client’s adversaries. A wrong, to which a litigant on either side, stands exposed, at the hands of the Lawyer on the other side, is the giving undue increase to costs of suit. By want of appropriate intellectual aptitude a client may stand debarred from having cognizance of the excess: or, by want of firmness, from resisting the demand. Without waiting for any application on the part of the client, the Judge will therefore—if it be needful, and without preponderant evil in the shape of delay, vexation, and expense, practicable—of his own motion, accerse the client, and, by examining him, endeavour to ascertain, whether the time charged as expended in the service of the client in relation to the suit, was or was not so expended, and if expended, whether the expenditure was or was not needful, as per Section 6, Art. 6.
As in relation to time, so in relation to epistolary communications, other written instruments, and journeys.
Art. 6. On this occasion, the Legislature and the Judge will be aware of the manner in which the sinister interest of a client may be acting, not in opposition to, but in league with, the sinister interest of the lawyer. For, if in his own view of the matter, the client is confident of gaining the suit, and that in such sort, as to be assured of receiving back from his adversary the amount of his own expenditure, in the shape of costs,—a confederacy with the Lawyer may, in this case, render it the endeavour of the client,—not to minimize, but to maximize the amount of his own costs.
Art. 7. For the more effectual and timely prevention of all such excess, an object of the Judge’s care will be, at the earliest stage of the suit, in concert with the parties and their lawyers, to ascertain what may be the cheapest as well as most expeditious course, for bringing it to a just conclusion. For various arrangements made for minimizing expenses, see Procedure Code, Ch. xx., Remedies Compensation.
For other matters, see Ch. xviii. and Ch. xix., and also the Procedure Code, Ch. ix. Proxies.