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Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 (Judicial Procedure, Anarchical Fallacies, works on Taxation) [1843]

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Jeremy Bentham, The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.

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An 11 volume collection of the works of Jeremy Bentham edited by the philosophic radical and political reformer John Bowring. Vol. 2 Principles Of Judicial Procedure; The Rationale Of Reward; Leading Principles Of A Constitutional Code, For Any State; Liberty Of The Press, And Public Discussion; An Essay On Political Tactics; The Book Of Fallacies Anarchical Fallacies; Principles Of International Law; A Protest Against Law-Taxes; Supply Without Burden; Or Escheat Vice Taxation; Tax With Monopoly

For a complete list of the titles in The Works of Jeremy Bentham see this page.

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Table of Contents:

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the WORKS of JEREMY BENTHAM, published under the superintendence of his executor, JOHN BOWRING.
WILLIAM TAIT, 107, PRINCES STREET; simpkin, marshall, & co., london.
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The subject of Judicial Procedure was a very favourite one with the Author, and one to which he was continually in the habit of recurring for more than thirty years. The consequence was, an immense mass of MSS. on this subject, extending to several thousands of pages, was found at his decease. Very many of the Chapters were written over and over again, each of them varying in some particulars: and all of them were more or less in an unfinished state. In preparing these MSS. for publication, the principal object throughout has been, as far as possible to present the text in the very words of the Author. The arrangement, I am fully aware, is not so logical as it ought to have been, or as it would have been, if the Author had lived to finish the Work. The difficulty was occasioned by this circumstance. In some Chapters, which in strictness ought to have followed others, allusions were made to the contents of those others, as if they were already known to the reader, and therefore they would not have been so readily understood, unless they had been made to follow, without making greater alterations in the text than I felt myself justified in doing. The plan pursued with respect to those Chapters which treated of the same topic, has been to incorporate the separate matter of each into one, and cancel the rest. Although much has been done in this way, and also in cancelling other repetitions, yet I fear some still remain, which should have been omitted. If this be found to be the case, the only apology I can offer is, that in a task of this responsible nature, I considered I should be erring on the safer side by retaining too much, rather than too little.

By far the greater portion of the Work was written between the years 1820 and 1827, both inclusive. Parts of the Introduction and the first Chapter were written so long ago as 1802, and may be distinguished by the style. In order fully to appreciate the merits of the arrangements here proposed, reference must be made to all that concerns the Judicial Establishments and the Minister of Justice, in the Constitutional Code. The Author’s great Work on Evidence should also be consulted.

In the Appendix will be seen the commencement of an “Initial Sketch of Procedure,” which was written under circumstances somewhat interesting. In the Autumn of 1825, the Author visited Paris for the benefit of his health. On his return, he was detained at Boulogne by a contrary wind for nearly a fortnight, and there at the end of that time this Sketch was written. It was the first thing written by the Author for nearly three months, during which his indisposition continued.

The paper on Account Taking Judicatories was intended by the Author to be attached to the Procedure Code; although it partly belongs to the Constitutional Code.

Two very instructive communications follow, on judicial matters in the East Indies. One is from Sir Alexander Johnston, the distinguished Chief-Justice of the Island of Ceylon; the other from a highly valued friend of the Author, who is now in India; I have not therefore been able to ask his permission to publish his name.

Richard Donne.
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  • THE RATIONALE OF REWARD, . . . . . . . . . 189
  • AN ESSAY ON POLITICAL TACTICS, or Inquiries concerning the Discipline and Mode of Proceeding proper to be observed in Political Assemblies: Principally applied to the Practice of the British Parliament, and to the Constitution and Situation of the National Assembly of France, . . . . . . . . 299
  • ANARCHICAL FALLACIES; Being an Examination of the Declarations of Rights issued during the French Revolution, . . . . . . . . . 489
  • — — — Appendix:—Junctiana Proposal;—Proposals for the Junction of the two Seas,—the Atlantic and the Pacific, by means of a Joint-Stock Company, to be styled The Junctiana Company, . . . . . . . . . 561
  • A PROTEST AGAINST LAW-TAXES, Showing the Peculiar Mischievousness of all such Impositions as add to the Expense of Appeal to Justice, . . . . 573
  • SUPPLY WITHOUT BURDEN; OR ESCHEAT vice TAXATION: Being a Proposal for a Saving of Taxes by an Extension of the Law of Escheat, including Strictures on the Taxes on Collateral Succession comprised in the Budget of 7th December, 1795, . . . . . . . . . . . . . 585
  • TAX WITH MONOPOLY; or Hints of Certain Cases in which, in alleviation of the Burden of Taxation, exclusive privileges may be given as against future Competitors, without producing any of the ill effects, which in most cases are inseparable from everything that savours of Monopoly; exemplified in the instances of the Stock-Broking and Banking Businesses, . . . . . . . . 599
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Of the present publication, the particular object is the preserving the country from being saddled by institutions, which under the profession, sincere or insincere, of contributing to the formation of an appropriate code of procedure, will have the effect rather of retarding, or even preventing it, and, at the same time, adding to expense, by which no fruit in the shape of benefit will be produced.

A Procedure Code, fit to be invested with the form of law, could not be prepared otherwise than by and with reference to the codes of law, penal and non-penal, to which it has for its object and purpose the giving execution and effect.

The present production, instead of following, precedes both these codes. If applicable in other respects, it will not be found on that account inapplicable to its intended purpose.

With regard to prospect of success, the sense of the public mind may as well be taken by this uncompleted and provisional publication, as by a completed work.

The characteristic features, and fundamental principles—all will be seen brought to view: only in respect of matters of detail, will there be anything to add, to defalcate, or to substitute. As of the plan here proposed, with its supposed features of aptitude, so of the system at present in force, with its supposed features of inaptitude.

On this occasion I shall be found (I hope) to have rendered sufficiently apparent the complete inaptitude of the established system with reference to its professed purpose; and thence the absolute and indispensible necessity of a code, entirely new, from beginning to end. This, supposing it done, will be no small thing done.

What is more, here is much which, in the character of a proposed code, all persons who feel inclined, may take in hand, and take for the subject of consideration and publication; and by this means, towards ultimate success so much advance will have been made.

It might perhaps not be a great deal too much to say of it, that in its present state, it might form a warrant for the appointment of a Committee of the House of Commons, and the consideration of it, the subject-matter of a portion of the labours of such a committee; and while the committee was occupying itself in the requisite labour, on its several points (including what regards the judiciary establishment, which is already in print,) I shall, if alive, be occupied according to the measure of my ability, in making such amendments as I find a demand for.

The reason for this hurrying, is the fear of seeing real improvement obstructed, and even improbabilized, by the creation of new offices, with enormous salaries attached to them.

Let me ask, how many centuries would it take to remove the already generally-acknowledged abuses, at the rate of progress at which the operation has been, and is performing, by the recent statutes?

No objection however to these; in the road to reform, every inch made is better than none.


By procedure, is meant the course taken for the execution of the laws, viz. for the accomplishment of the will declared, or supposed to be declared, by them in each instance. Laws prescribing the course of procedure have on a former occasion been characterized by the term adjective laws, in contradistinction to those other laws, the execution of which they have in view, and which for this same purpose have been characterized by the correspondent opposite term, substantive laws.

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For in jurisprudence, the laws termed adjective, can no more exist without the laws termed substantive, than in grammar a noun termed adjective, can present a distinct idea without the help of a noun of the substantive class, conjoined with it.

As in fact every act by which a course of procedure is commenced has for its end or object, the bringing about the execution of some law of the substantive class, so, in point of utility, it may be said that the course of procedure ought to have in every instance, for its main and primary end at least, the accomplishment of the will manifested in the body of substantive laws. For this is not only a use of it, but the only use for it.

The ultimate utility of it will therefore depend altogether upon the utility of the substantive laws, the execution of which is in eachinstance endeavoured to be brought about: unless the substantive law be conformable to the greatest happiness of the community, the use made of the body of adjective laws on that occasion cannot be conformable to that same end. But though this may with truth be given as the main and primary end of the course of procedure, it cannot however be given as the sole end; because in the pursuit of that same end, a variety of inconveniences are apt to occur, and indeed in a certain degree cannot several of them but occur—in every instance: hence result, as so many collateral or subordinate ends, the avoiding as far as possible the giving birth to those several inconveniences.

The code of procedure, then, is composed of the system or assemblage of adjective laws.

Of the substantive branch of the law, the only defensible object or end in view, is the maximization of the happiness of the greatest number of the members of the community in question.

Of the adjective branch of the law, the only defensible object, or say end in view, is the maximization of the execution and effect given to the substantive branch of the law.

The present proposed code is composed of an aggregate of arrangements, having the above for their object, or end in view.

Of every extensive body of law, the end, mainly at least, if not exclusively, in view, has been the greatest happiness of those by whom the body of law in question was made.

Consistently with the nature of man, and the preservation of his species, no other could any extensive body of law have had for its end in view. For proof of this position, see the Constitutional Code.

In a representative Democracy, if rightly constituted, the possessors of the constitutive or supreme authority are the aggregate body of the members fitted for self-government; and the possessors of the legislative authority are their delegates, and would represent their interests.

In the case of an Aristocracy, the interests of the members of the aristocracy, or the majority of them, would prevail; and in the case of a Monarchy, the interest of the monarch.

In a mixed monarchy, composed of the monarch and the aristocracy, it would be the conjunct interest of the monarch and the members of that same aristocracy that is to say, of the majority of those who act on the theatre of legislation.

In the case of a mixed monarchy, composed of the monarch, the aristocracy and the delegates, or say deputies, of the people, the conjunct interests of those same three authorities.

Thus much as to substantive law. But in the case of adjective law, or say procedure law, to a greater or lesser extent the law has had for its authors, in proportions infinitely diversified, legislative authority (in its several modification, and the judicial authority—in a word, the judges, who under the notion of interpreting, where, in fact, there was nothing to be interpreted—have been suffered, in effect, to legislate. The consequence is, that in correspondent proportions, this branch of the law has had for its object, or end in view, the interest of this class of the functionaries concerned in the making of it.

But more especially in the mode in which their remuneration has commonly been allotted to them, is their interest in a state of diametrical opposition to the interest of those for whose benefit the laws are everywhere professed to have been made.

By the author of these pages, no share in that profit was ever aimed at, or desired, nor at present could by possibility be received: his interest is therefore in the state of the greatest possible harmony with what he has made his duty; and accordingly, wheresoever it may have happened to him to have erred, the error will have had a deficiency not in moral, but in active and intellectual aptitude for its cause.

Among the arguments employed, and which, since some recent occurrences, have been made use of, for stopping the progress of improvement (and securing against diminution the addition made every year to the number of those who, by and for the benefit of lawyers, are punished for not knowing what they have been carefully kept under an impossibility of knowing,) one is—You cannot provide for everything; therefore you ought not to provide for anything more than what has been provided for already.

To understand the force and value of this argument—the aptitude, moral and intellectual, of those by whom it has been employed—employ it to other branches of art and science.

Without going out of the field of legislation, apply it to substantive law. Apply it Edition: current; Page: [7] to medicine: you cannot cure all diseases—why give yourselves so much trouble in the endeavour to cure any more than you can already.

For the enactment, or say establishment, of any law, or of any mass of the matter of law—of two species of power—the intellectual and the political—the concurrence, or say conjunction, is necessary: intellectual, that of the legislative draughtsman; political, that of the legislator. The political cannot, in the most improved state of society, be with propriety in hands other in number than a select few: in the least improved, it has everywhere been of necessity in the hands of a single person.

But before it comes to be presented to the legislative assembly in the legislation chamber, there is another tribunal in which, with great advantage to the public, every question of law which is invested with a certain degree of importance may be introduced—and that is the public-opinion tribunal. For the purpose of introducing into this tribunal a proposed law, the right of initiation appertains at once to every person who can find adequate inducement for giving exercise to it.

In the legislative assembly, proposed laws cannot without confusion be taken into consideration, and compared together, in any considerable numbers. But by the public-opinion tribunal, they may be subjected to this operation, in a number altogether unlimited.

To introduce, or attempt to introduce, into the legislative assembly, a mass of law of a new complexion, before the minds of men were to a certain degree prepared for the reception of it, would be lost labour, and a hopeless task. Not so the like attempt in relation to the public-opinion tribunal.

Why set about drawing up a perfect body of laws—that is to say, one which to yourself you expect will appear so?—why give yourself any such trouble? Suppose the task of drawing it up accomplished, can you seriously expect to see it, in that place, put to use?—can you flatter yourself with any such hopes?

Answer: No. But, to a person who has leisure, and who has the means of living while the work is going on, that consideration is no sufficient reason for declining the task.

In the present instance, the work must of necessity be the work of many years—say six, eight, ten years. Now, suppose it a settled rule that no such work shall be begun to be drawn up till a probability of its being immediately taken into consideration in the legislative assembly (and ultimately adopted) has presented itself,—what is the consequence? Answer: That the necessary time in question—the six, eight, ten years—will be lost; the public for that whole length of time deprived of the receipt and enjoyment of this all-comprehensive instrument of felicity.

Oh! but this is innovation!—Oh yes—unquestionably; it is innovation. But what follows? From misery, whatever be the shape of it, a change to tranquillity is innovation. From war, whencesoever it comes, change to peace is innovation. War, misery, wickedness in every shape—are they then to be perpetuated?—all for fear of innovation?

Whoever takes in hand these pages, will do well, in the first place, to lay out of his mind everything that belongs to the existing system, baptized the technical. He will see there, when the time comes, nothing but confusion—a purposely and most elaborately organized system of confusion. Of itself, it accordingly explains nothing: explanation it requires itself throughout, so far from being capable of affording it. In the here proposed system, styled the natural, he will see the course prescribed by common experience and common sense. The purpose being to give execution and effect to a system of arrangements and ordinances, by elicitation made of the truth of facts, the question will always be, whether this or that one of the arrangements made, or supposed made (supposed only in the case of the unwritten law,) has application to the individual case in question.

For arriving at the truth, the natural course, it will be seen, is the same in all cases. Under the technical system, the course pursued is different, according to the various judicatories employed, with their different portions of the field of law (logical or geographical) assigned to them, or occupied by them, with corresponding different sets of powers and duties—common law, equity law, civil law, penal law, ecclesiastical law, admiralty law, general sessions law, petty sessions law, and so on—all differing so widely from one another, while pretending to be directed to one and the same object,—the discovery of truth in regard to facts, by means of evidence. All of them good, it is impossible they should be; all bad, it is altogether possible they should be, and will accordingly be seen to be; all unapt—relation had to such their professed and falsely pretended purpose; all good,—relation had to their non-professed, but disguised, and endeavoured-to-be-concealed, purpose;—viz. the promotion of the particular and sinister interest of the institutors, at the expense and by the sacrifice of, the universal interest.

Of the proposed system, these are the leading features:—

1. Expense of litiscontestation, defrayed as far as possible by the public.

2. Cases of necessity excepted, attendance Edition: current; Page: [8] of parties in their own case, not less universal and punctual than that of third persons in the character of witnesses.

3. With ample precaution against abuse, necessary expense of evidence, and professional assistance, provided by the public, for those who are not themselves in a condition to defray it.

4. For the verity of whatever statement is made on a judicial occasion, or actually or eventually for a judicial purpose, effectual provision will be made,—and that the same in all cases,—by appropriate punishment, and without the intervention of any useless ceremony.


When the whole body of the Law has for its object the greatest happiness of the greatest number, the whole of the adjective branch taken together may be said to have two specific ends: the one positive, maximizing the execution and effect given to the substantive branch; the other negative, minimizing the evil, the hardship, in various shapes necessary to the accomplishment of the main specified end.

Between these two-pursuits the conflict is all pervading and perpetual. Whatsoever arrangement is taken for the attainment of the one end, it can scarcely avoid being in a greater or less degree obstructive to the attainment of the other end.

If, whether it be with a view to compensation merely, or to compensation and punishment together, measures of adequate strength for securing eventual forthcomingness on the part of the defendant—person and property included—be not taken, injured individuals, who are, or would, or should have been, prosecutors, or say pursuers, remain without redress—without indemnity for the past, or security for the future: if measures of more than adequate strength are taken, evil-doing defendants not only may be made to suffer more than is necessary; but, what is worse, hardship (to an indefinite amount) may be made to fall on the heads of men who have not in any way been evil-doers; and then not only with and by, but even without, any evil consciousness or evil intention on the pursuer’s side.

In this way the judicial establishment (how well and faithfully soever the duties of it may be performed) may be made the instrument of oppression, and even of depredation. No intellectual aptitude—no active aptitude—no appropriate knowledge or judgment on the part of the judge—can render him completely secure against so deplorable a result. No otherwise than through the medium of such information as comes in his way, or is obtainable by him, can he ever act, or forbear to act. If that information is false, and by means of its falsity deceptive, a wrong judgment is on his part unavoidable.

On this occasion, as on every other, the grand security of securities is publicity:—exposure—the completest exposure of the whole system of procedure—whatever is done by anybody, being done before the eyes of the universal public. By this means, appropriate moral aptitude may be maximized—appropriate intellectual aptitude may be maximized—appropriate active aptitude may be maximized. The greater the tutelary influence exercised over the judge by the public eye, the more intense will be the attention on each occasion bestowed by him, in the endeavour to obtain adequate knowledge, and give maturity and correctness to his judgment, as well as quickness to the exercise given on this occasion to his active faculties.

Still, however, against deception by false assertions and false evidence in other shapes, the soundest judgment can never be secure.

What remains, then, is, to provide what security can, without preponderate hardship be provided against falsity uttered by an individual coming in the character of a pursuer, with the view to subject to a hardship, a defendant on whose part no wrong has had place.

Of the necessity of making arrangements of this sort—of the difficulty that attaches upon the endeavour—no adequate conception can ever have been formed by those whose thoughts have been confined within the bounds of the field, occupied by the arrangements taken with this view in any body of law that has ever been in force. In every such body of law, the expense and vexation, attached without distinction to the operation of legal pursuit in every case, tend with a force proportioned to the aggregate force of the complicated mass of hardship, to the prevention of ungrounded and ill-grounded suits.

Such is its tendency, and such to a prodigious extent is its effect, independently of all intention and desire on the part of those by whom the system was framed, or those by whom application is made of the powers established by it. To the production of this thus far salutary result, not only is no such endeavour or desire necessary, but in spite of their most strenuous endeavours to the contrary, it could not be prevented from taking place.

At the same time, while without, and (to an even universally-indefinite extent) against any such intention, this mass of hardship is in this shape productive of good effects; in another shape it is to an unmeasurable extent productive of evil effects. It is an instrument Edition: current; Page: [9] put into the hands of the oppressor—of every oppressor who is rich and wicked enough to purchase the use of it, at the hands of those who, according to the intention of those by whom it was made, continue to reap the profit—an instrument, by which, under the yoke of one-tenth of the population, nine-tenths are kept in an oppressed state, and but for the salutary, though scarce perceptible influence of the public-opinion tribunal, would be kept in a state of the most abject slavery.

That, on the part of rulers, the evil is everywhere the result—not of oversight, or deficiency in intellectual aptitude, but of purposed intention and endeavour—is matter of demonstration. For everywhere not only are the obstacles in question left in full force, without any endeavour to remove or lessen them, but addition, and to a vast amount, is made to their force—made, too, by instruments of their own manufacture—made by them, with the manifestly-resulting effect, and thence with this unquestionable purpose, namely—the creation of law-taxes and law-fees: law-taxes imposed by the rulers for the increase of their own excessive opulence; law-fees, which in their legislative capacity they suffer their colleagues and instruments to exact for the increase of their own exorbitant wealth, thus amassed by the application of oppression to the purpose of depredation.

Thus, then, the endeavours of the philanthropist in the law may be expressed by this one problem: how to unite the maximization of redress for the injured in the character of pursuers, with the minimization of hardship on the innocent in the character of defendants.

These being the ends, the means may be stated as follows:—

1. In so far as necessary, under the name of security for eventual justiciability, on the plaintiff’s side, a condition imposed, to the obtainment of the judicial services for the alleged purpose of seeking redress for injury.

2. In case of an unjust demand, for the prevention of needless and unprofitable vexation and expense (such as might otherwise be imposed on individuals in the situation of defendants, by individuals placing themselves in the situation of plaintiffs,) a provision made, not only of eventual compensation but also of punishment, to be inflicted on those alone in whose instance the existence of blame, in one of two shapes, has been established.

These two shapes are—1. Evil consciousness; 2. Temerity or rashness.

By evil consciousness, understand, on the part of him by whom a suit is commenced or carried on, a consciousness of the injustice of it—of the non-existence of all adequate ground for it.

By temerity or rashness, understand the absence of that due attention, by which, if bestowed upon the subject, he by whom an unjust suit is commenced would have been rendered conscious of the injustice of it.

By way of punishment, suppose law-taxes enforced against such suitors as have been found to blame. Tax for vexatious pursuit: tax for vexatious defence.

In certain cases, assistance should be rendered at the expense of the public, or of spontaneously-contributing individuals; assistance afforded to persons to whom (whether on the pursuer’s or on the defendant’s side) the inability to defray the expense of pursuing the necessary means of obtaining justice would otherwise render them destitute of the means.

The sources of such expense are—

Procurement of evidence, in the case where expense is necessarily attached to the elicitation of it: namely,—1. In the case of oral evidence, the expense of conveyance to and from the abode of the proposed witness to and from the seat of judicature; 2. The expense of demurrage at the seat of judicature; 3. Loss of time, which, to those to whom time is an indispensable source of subsistence, is tantamout to expense; 4. In the case of written evidence, the expense of making the necessary transcripts. There is also the correspondent expense in the case of appeal.

The sources of receipt in all cases are—

1. Voluntary and gratuitous contributions on the part of judicial assessors and others, to whose cognizance the case has happened to make its way.

2. Under the eye of the judge, purchase of assistance for this purpose, by engagement to repay in case of success, together with a premium adequate to the risk.

3. A fund to be provided for this purpose at the expense of the public.

As to blame, independently of any which may have had place at the origin of the suit: on the part of the pursuer, in the case of a pursuit accompanied with the consciousness of its groundlessness; on the part of the defendant, a defence under the like consciousness of its groundlessness,—blame may have place on either side; and this as well on the part of him who knows himself to be in the wrong, as on the part of him who, being in the wrong, knows not that he is so. Such will be the case in so far as, on either side of the cause, arrangements are taken, having for their effect (whether they have or have not had for their object) the production of needless vexation or expense on the part of the opposite side.

As to the provision of fine or other punishment for vexatious pursuit or defence, if security in that shape were not provided, observe the evils that would ensue.

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For the purpose of minimizing vexation and expense, or rather for the purpose of avoiding to create it one fundamental general rule is, exceptions excepted—obligation of personal appearance at the judgment-seat, on the part of all parties as well as witnesses.

Of this arrangement, the necessity to justice, that is to say, to all the necessary ends of justice, will be shown further on. For the purpose of the argument, let it here be previously assumed.

Now, then, observe the consequence.

Every person being compellable to appear at any time, and thus at all times, at the instance of any person or any number of persons appearing in the character of plaintiffs—and no person prevented from appearing in that character, or punishable for the vexation produced as above—the whole life of any person, or of persons in an indefinite number, might be completely occupied by calls to this effect: a tyranny exerciseable over all would thus be put into the hands of all—a tyranny, and of such sort as would have, amongst other effects, that of a licence to commit murder, by cutting off from men, in any number, the means of earning their subsistence.

Of the demand by which commencement is given to a suit, what in every case is the object? Answer: In every case, to give execution and effect to the corresponding portion of the law.

Good. But as many as are the different remedies, and so many as are the different forms and proportions in which they are capable of being applied, and, to suit the individual wrong or individual right in question, require to be applied—how can the same course of procedure, or even any small number of different courses of procedure, be in itself applicable, or be capable of being made applicable to each?

Answer: In this way. What they have in common is this:—For the judge to be able to give execution and effect to the appropriate portion of law involved, whatever it may turn out to be, what is necessary is,—that the means of execution be in his power—at his disposal—in his possession, or at his command. These are the person, reputation, property, and in certain respects, condition in life, of the parties, and in particular of the defendant, together with any such miscellaneous valuable right as it may happen to the party to be in possession of.

But omitting, for shortness, reputation and condition in life, for placing the person and property at the judge’s disposal, the means requisite are exactly the same, whatsoever may be the disposition which, by his ultimate terminative decree, he may deem it advisable to make of them. In regard to the person, to keep it in confinement for a single day, or for the whole of life—or, supposing the law to permit it, to substitute death to life. Thus it is, that in the case of the most trifling pecuniary demand, and in the case where the whole property of the defendant—his personal liberty, during the whole of his life, or even his life itself,—is at stake, the means, if not of actual execution, of being in a condition to order and effect actual execution, will be in every case the same.

In regard to these same means of execution, one considerable difference, alas! will be found to have place between the means of execution applying to the case where the remedy required is of the most burthensome kind to the proposed defendant, and that in which it is of the least burthensome kind. The more urgent the need which the party on the pursuer’s side may have of the remedy sought by him at the charge of the defendant’s side, the greater the need there is of the judge’s putting himself in the possession of the physical faculty of applying the appropriate remedy, how burthensome soever to the defendant. But in many cases, the determining to wait till full proof can have been made of the justice of the demand, would be in effect to render the fulfilment of the duty of giving execution and effect to the appropriate portion of substantive law impossible: for, in the meantime, and while the proof was in collection, person and property would be out of the reach of the judge. Thus, in cases of a certain degree of importance, the need of a sort of provisional means of execution, of which in these cases the eventual good has a preponderance over the actual evil.

In regard to the means of probation, the coincidence is still more entire. Be the demand what it may—be the appropriate means of execution and effect what they may, the evidence adapted to the purpose of obtaining credence for the alleged matter of fact in question will be the same: the means requisite to be taken for coming at the source of the evidence, and eliciting it from its sources in the best shape, will always be the same.

True it is, that in this case, as in that of giving execution to the law, the proper answer to the question, whether to obtain the alleged evidence, or to leave it unobtained, will depend upon the ratio of the lot of evil to the lot of good—the evil in the shape of delay, vexation, and expense, from the elicitation of the evidence,—and the good from its conduciveness to right decision, in other words, the security it affords against deceit and mendacity, by either of which execution and effect would be prevented from being given to the law.

On this occasion, if of half-a-dozen different sorts of judicatories under the same government,—each of them, for the ascertaining of the truth in relation to one and the same alleged matter of fact, pursues a different Edition: current; Page: [11] course in relation to evidence,—in the wrong they may be, all of them, and are—in the right, courses more than one there cannot be.

Means of communication, of persons needful with persons needful, and of persons needful with things needful:—be the demand what it may, be the particular mode of execution what it may, be the facts of the case what they may, be the appropriate sources of evidence, and the mode of eliciting it, what they may,—the means best adapted to the purposes of effecting the communication necessary between the persons and things in question cannot in any case be different. As to the question,—will it, in the present case, for the purpose of obtaining the evidence, be worth while to employ the means of communication necessary for that purpose? In this case, as in the former, the balance may in some cases require to be taken in hand, and the good expected from employing the necessary means of communication, weighed against the evil inseparable from the employing them.


By the apt ends of judicature, understand the ends of justice, as per Chapter I.; by the unapt, all other ends.

The powers of judicature are the powers exercised by judges as such—exercised by judges (as to a greater or less proportion) in pursuance of their own will, but everywhere and at all times under the controul of a superior authority: in pure monarchies, that of the monarch—in the English monarchy, that of the monarch with the aristocracy under him, constituting together the parliament.

All power has had everywhere, and at all times, for the end of its exercise, the good, real or supposed, of those by whom it has been exercised.

In the formation of the English system of judicature, the judicial has ever been the active, the ordinarily-operative power; that of the monarch, with the rest of the parliament, the controuling only; the authority always capable of exercising that power, and now and then, but very rarely, actually exercising it.

The formation of English procedure began before parliaments were established.

Of this system, the pretended ends would of course always be (or at least have been, and on inquiry would be now) the ends of justice,—the ends of justice as above enumerated: the real end, and if not the sole end, at any rate the main and ultimate end, the good of the judges—of those members of the judicial establishment who have borne their respective parts in the framing of it;—the obtaining and securing for their use the greatest possible portion of the objects of general desire, and in those large masses which none but those amongst whom the powers of government are shared can possibly possess. These may be styled the sweets of government: power, wealth, factitious dignity; ease, at the expense of official duty, and vengeance at the expense of justice.

Hence then another, but not inconsistent account of the ends of judicature, is this: maximization of depredation and oppression. Of depredation, wealth is the fruit: of power, oppression and vengeance.

The only end of the English system that is ever brought to view, is—the keeping up the customs commenced in the darkest ages.

In every political community as yet in existence, widely different from the only proper, have been as yet the actual ends of judicature.

Judicature is a branch of government; the judicial system of the aggregate official establishment.

In every political state, the actual ends of government have been the maximization of the happiness of the aggregate of the persons bearing respectively a part in the exercise of the powers of government.

Proportioned to the share possessed by the judges (and their associates in the profession out of which they spring) in the powers of government, has been, in every political state, the degree in which their interests have been promoted, in and by the arrangements of law, at the expense of all rival interests. In pure and absolute monarchies, the men of law, of whom the judges formed a part, having neither power nor influence but what they derived from the monarch, have found themselves under the necessity of taking for the main object of their labours, the sinister interest of the monarch: and it is but by stealth, and in virtue of, and in proportion to, his ignorance or carelessness, that they have been able to introduce any arrangements favourable to their own sinister interest, at the expense of his.

Very different has their situation in this respect always been, in England. The grand instrument of despotism, a standing army, not having sprung up in England till a system of government, suited to the purpose of the judges and other lawyers had been formed by lawyers, the monarch, in the measures taken for the advancement of his own sinister interests, felt himself under the necessity of letting in their sinister interest for a considerable share of the benefit. Other hands, still more obsequious, could he have found them, would of course have been employed by him in preference; but no such Edition: current; Page: [12] hands did the nature of the case afford. In the field of law, covered as it was by a jungle of their own planting, none but themselves could find means to move. Awed by parliaments, which though in esse as unfrequently, and for as short a time as the craving rapacity of the monarch could contrive, were continually in posse, it was only by an obscure and tedious road that the judges could make their way in the prosecution of their designs: while, by fresh power and fresh sources of profit, as occasion offered, thrown into his hands, these ever-dependent creatures of his were ministering to his rapacity, he through ignorance or indolence connived all the while at theirs. While by fines and confiscations they were filling his coffers, by fees or addition to salary he connived at the rapacity practised by them for their own benefit.

This object, however, they found it beyond their power to accomplish, without a variety of false pretences. Lies accordingly were the instruments, by which on every occasion the dirty part of their work was done: and in such numbers, and of so gross a texture, were lies of rapacity uttered by them, that in the career of rapine and mendacity, all the most profligate of their brethren of the trade in other countries were left far behind.

In the accomplishment of their object, thus were they obliged to proceed in a retail way, and by short steps; taking money no otherwise than by the offer made of their services to the parties,—in the shape of fees; and these fees, considering the poverty of the greatest part of the contributors, separately taken, unavoidably small ones. At one time indeed they had formed higher projects: instead of picking it up by driblets in the shape of fees, they had begun to work for themselves as they had been used to do for the monarch, and confiscated whole estates at once to their own use, as they had been in the habit of doing to his. This being in a reign of remarkable weakness (that of Henry the Sixth,) it was by this weakness that they were probably emboldened to make so daring an experiment. The experiment was accordingly made. But though made with impunity, it was not made with success. A parliament there was, which, however impotent and disinclined with relation to any considerable good, was still willing and able to save its members and others from having their estates swallowed up in the gulph which had been thus dug for them.

Contrasted with the beheadings and embowellings, which in the hands of these same functionaries had been ordered for crimes of so much lighter a die, it is curious enough to observe the gentleness of the means employed by the parliament in its opposition to this project: a simple prohibition, and that clothed in the softest language.

In this way it was, that in England the actual ends of judicature became, as they are and as they continue to be, so widely different from the proper ends of judicature.

In regard to the number of suits, what the proper ends require is, that the number of sincere suits, and applications that are not rash, be maximized; that of insincere suits and applications minimized.

That the number of those that, not being rash, are sincere, be maximized—Why? Because on the part of every person, who in his own opinion, and that of his circle, has a right to a judicial service from a judge, and by the state of the laws finds himself precluded from the obtaining the effect of it, a feeling of oppressedness—an opinion of injustice on the part of the system of judicature—has place.

The number of those that are insincere, minimized—Why? Because if, in the opinion even of him who would institute them, they are unjust, and by reason of the vexation produced by them on the part of the defendant, oppressive,—so everybody else may safely stand assured they are.

In regard to rash suits that are not insincere: as to the number of these also, what the ends of justice require is, that they be lessened. Why? Because by those also vexation is produced. But for the lessening the number of these, arrangements of a nature so severe as those which may and should be employed for the lessening the number of the insincere, should not be employed; lest along with those which are sincere yet rash, those which are sincere and not rash be repressed, and thus the opinion of injustice and insecurity in a correspondent degree diffused. What in this case the ends of justice require is, that maximization be given to the number of those rash suits, in which the burthen of vexation is definitively (by means of compensation) taken off the shoulders of the party in the first instance vexed, and set down upon those of the vexer—the author of the vexation: for, in proportion as these conjoined effects are produced, the quantity of vexation is reduced on the part of the injured class, and with it the extent of the apprehension of the like injustice.

Now as to what, in relation to this subject, is required by the actual ends of judicature—required with more or less energy and effect, in every as yet known system of judicature, but with most of all by the English.

In regard to the number of suits, that the number of lawyer-profit-yielding suits, sincere and insincere, be maximized: of that of profitless suits, minimized.

That the number of lawyers’-profit-yielding suits be maximized—Why? Because,—but as to the cause, the case speaks for itself—lawyers’ labours and lawyers’ profits proportionable.

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That the number of profitless suits be minimized—Why? Because, for every such suit, there would be lawyers’ labour (of such as were employed,) and no lawyers’ profit to sweeten it.

The lawyers (whose only profit, if any, came from the parties, and could not be compelled to serve the parties) would of course, if the inducement were taken away, leave their books, and escape from the service. Of judges, if paid by the public (and on condition of not receiving anything from the parties,) their interest and inclination would of course prompt them to wish, that of suits thus barren the number should be minimized; but they could not, as the hireling lawyers could, so far as regarded suits in which, if instituted, they would have been concerned, reduce it to nothing.

By law-taxes, profitless suits are reduced, but lawyers’-profit-yielding suits, in a certain proportion, reduced with them. By law-fees, profitless suits are reduced, though lawyer-profit-yielding suits are also reduced; yet in so far as limits are set to rapacity by prudence, the balance on the profit side is increased.

In England, not to speak of other countries, not only at no time has the system of procedure acted upon been in fact directed to the ends of justice, but at no time, by any person concerned in the carrying it on, has any such profession as that of its being directed to the ends of justice been ever made.

With what face, indeed, could they have been, by any English lawyer, laid down as the exclusively proper ones, or so much as simply the proper ones, seeing that the ends uniformly pursued by English judges (who, with here and there the exception of a scrap or two of legislative-made law, have been at the same time their own legislators) are in a state of perpetual opposition to the ends of justice?

Hence it is, that from beginning to end, an English book of procedure (book of practice is the name of such a book among English lawyers) presents no other object than a system of absurdity directed to no imaginable good end.

An all-comprehensive code of substantive law, having for its end in view (in so far as the ruling one, and the sub-ruling few, can be brought to admit of it) the greatest happiness of the greatest number, each part of it present, to the minds of all persons on whose conformity to its enactments its attainment of such its end depends:—an all-comprehensive code of adjective law, otherwise called a code of judicial procedure, having, for its end in view the giving, to the utmost possible amount, execution and effect to the enactments of the substantive code:—such is the description of the instruments which the people (in so far as apprised of their most important interests) look for, at the hands of the government:—such are the securities which in a government, in the breasts of the members of which any regard for the greatest happiness of the greatest number had place, would lose no time in bringing into existence.

Such are the indispensable instruments of felicity and security, which the implacable enemies of both—the lawyer tribe, underall its diversifications—will leave no stone unturned to prevent from coming into existence: the actually existing, indiscriminate defenders of right and wrong in one house—the quondum indiscriminate defenders of right and wrong, now exalted into exclusive defenders of wrong in another house.

It is a maxim with a certain class of reformists, not to give existence or support to any plan of reform, without the consent and guidance of those to whose particular and sinister interest it is in the strongest degree adverse; not to do away or to diminish any evil, but by the consent, and under the guidance of those by whom, for their own advantage, it has been created and preserved.

From this maxim, if consistently acted upon, some practical results, not unworthy of observation, would follow:—

For settling the terms of a code having for its object the prevention of smuggling in all its branches,—sole proper referees, a committee, or bench of twelve smugglers.

For a nocturnal-housebreaking-preventive code,—a committee of twelve nocturnal housebreakers.

For a highway-robbery-preventive code—a committee of highway robbers.

For a pocket-picking-preventive code, (in the physical sense of the word pocket-picking,)—a committee of unlicensed pickpockets.

For a swindling-preventive-code, or say an obtainment-on-false-pretences-preventive code,—a committee of swindlers called swindlers, or of swindlers called Masters in Chancery, including the Master of the Rolls; or a committee, bench, board, or jury—no matter which the appellation, so the apostolic number, twelve, be retained, composed de medietate; half of swindlers unlicensed, and unentrusted with the power of extortion—the other half licensed, and invested with the power of extortion, the jus extorquendi, the jus nocendi, in its most irresistible and profitable shape.

For a female-chastity-securing code,—a committee of twelve ladies-procuresses.

No housebreaker has an interest in preventing the abolition of housebreaking, no highwayman in preventing the abolition of highway robbery, no pickpocket in preventing the abolition of pocket-picking, no sinecurist or Master in Chancery, or other swindler, in preventing the abolition of the practice of obtaining money by false pretences, to lady-procuress Edition: current; Page: [14] in preventing the abolition of female unchastity:—no such practitioner, male or female, stands engaged to resist the abolition or curtailment of his or her means of livelihood, by any interest comparable in point of magnitude and intensity with that which an English judge has in preserving the rule of action from any change from which human misery would be lessened, and his own profit, which with so much ingenuity and success has been so intimately and inseparably interwoven with it, and rendered proportionable to it, reduced.

The Westminster-Hall common-law judges, in different groupes—in some instances collectively, in others severally—(shared among them as they can agree,) possess and exercise a power of making law—of making that which has the bad effect, without any of the good effect of law, ad libitum, without any controul but that of a legislature, which is in league with them by a community of sinister interest, and leaves to them the charge of exercising depredation and oppression, in cases in which fear or shame would prevent its operating to that effect by its own hands.

Lord Tenterden dismisses unpunished (indeed, how could he have done otherwise?) an extortioner, with whom he has a fellow feeling, with whom he is in partnership, whose profit is his profit. This fact has been held up to the view of Mr. Peel, and Mr. Peel will do nothing without the advice and consent of Lord Tenterden, whose wisdom, magnanimity, disinterestedness, and public spirit, he can never sufficiently admire.

Upon the money which,—instead of being secured to and divided between the distressed debtor and his frequently no less distressed creditor, the gaoler (dignified with the title of Marshal) of the prison called the King’s Bench prison,—this gaoler can contrive to squeeze into his own pocket, depends the value of the place to the possessor, and thence to the patron, the Chief-justice of the said King’s Bench.

Into the mind of a Member not in office, suppose any such conception to have found entrance, as that the money of a debtor would be more beneficially disposed of, if divided amongst his creditors, than if divided between the Marshal and the Chief-justice of the King’s Bench,—and to move for leave to bring in a bill for this purpose—what, in such a case, would be the course taken by Mr. Peel? He would cause it to be understood, that if the bill were entrusted to him he would take charge of it: a proposition, of the advantageousness of which it would not be possible for the member, be he who he may, not to be persuaded. The bill is now in Mr. Peel’s hands. What, then, if he acts with any consistency, will he do with it? He will recommend it to the care of Mr. Jones* and Lord Tenterden, and will be guided altogether by their invaluable assistance and advice.

A man, indicted for manslaughter by driving a load over the body of the deceased, was acquitted. Why? because he did not do the act? No: but because by Mr. Nobody-knows-who, who drew the indictment, the condition of the cavalry, in respect of sex, and aptitude for marriage (nomenclature is in this instance an operation of the most perilous delicacy,) had been averred; and by those who should have proved it, had not been proved. By the care of Mr. Peel’s sublaborators, in one of his bills, a clause had been inserted, by which the necessity of the averment in question, and proof made of it, would have been saved. But by the wisdom of a majority of those wise men of the West, it had been perceived, that by the omission of matter so indispensable in the eyes of the common law, “too great a laxity in pleading would have been introduced.

One reason had been alleged why the defendant, if a murderer, should not suffer as such: and the reason was, that by the drawer of the indictment, the nature of the road had not, in point of law, been explained,—whether it was a king’s highway, or what else it was. This objection, formidable as it was, was overruled by the learned judge, Lord Chief-justice Best; whose liberality and sense of justice stood thus conspicuously manifested.

But the objection about the condition of the cavalry was too material and too strong, even for his Herculean shoulders. This objection was pronounced by him a fatal one: to have found it obviated by a clause in an act of Mr. Peel’s, had been his hope; but alas! on inspection, the clause was not be found.

Thus it is, that by the deliberate, and so recently declared judgment—that judgment a unanimous one, of the twelve Wise Men of the West—it is conclusively established, that (not to speak of other functionaries of the law) the power of granting effectual pardon to all criminals—murderers in particular, not excepted—belongs incontestibly to every person by whom the function of penning the instrument of accusation is performed.

With this licence, wanting to himself is every murderer, who, by his murders or otherwise, having provided himself with the money, omits to offer to the draughtsman whatever sum may be requisite, to the insertion of the mercy-administering surplusage: wanting to himself, disrespectful to the luminaries of the law—the twelve judges—is the draughtsman by whom so advantageous an offer is refused. What danger for him can there be, from the acceptance of it? So many of these omissions Edition: current; Page: [15] as there have been in time past, none of them producing any suspicion of sinister design: so easy, so frequent, such omissions without sinister design,—who shall be uncharitable enough to pronounce intentionality in any future instance, whatever it be?

By the functionary in question, true it is, that in consequence of the omission, a good sum of money, say a thousand pounds, has been received.

But from thence does it follow that it was really his intention that guilt should escape? Forbid it, candour!—forbid it, justice! The judges, are they not ministers of justice? This draughtsman, is he not a minister of justice likewise?

Let but a man be the minister of justice, and whatsoever be the quantity or quality of the mischief, in the production of which he is instrumental,—whatsoever be the quantity of the money which he gains by its being produced,—(in such sort, that were not the mischief produced, the money would not be received:) it is not to be supposed that it was his intention that mischief should be produced; it is not to be supposed that, whatsoever be the money gained by producing it, he will ever intentionally contribute to the production of it in future.

Captain Macheath, when, pistol in hand, he said to the passenger, “Give me your purse or you are a dead man,” and he received the purse with five guineas in it accordingly,—was it his intention to receive the money, and convert it to his own use? Yes: for his style and title was Captain Macheath. But suppose his style and title had been Mr. Justice Macheath—or suppose, that after having been convicted of the robbery, instead of the gallows he had been raised to the bench,—would he, even in the last case, have been guilty?—would it have been his intention either to have received the money, or to have shot the passenger, in the case of his not receiving it? Oh no: the patent of appointment would have relation backwards: nothing more easy, nothing more conformable to precedent. The King can do no wrong upon the throne. The King’s judge can do no wrong upon the King’s Bench—can he, Lord Tenterden?—can he, protector and partner of the tipstaff?


A procedure code is an accessory code, which, as we have seen, has for its end in view, and occupation, the giving execution and effect to a correspondent principal code.

Hence comes a natural supposition: the substantive code should, as mathematicians say, be given, or the adjective can have no meaning; the substantive being throughout a necessary object of reference.

To a certain extent and degree, this is correct and undeniable. To a certain extent it does not apply. If it did apply to its whole extent, this work would, from first to last, be unintelligible and useless.

The procedure code, in so far as it is clear it ought to be, has for its purpose, and end, and occupation, two things: the exercising, for the avowed purposes mentioned in the substantive code, powers of all sorts over persons and things; and, in the next place, coming at the truth of the case in regard to matters of fact, to wit, such matters of fact as are necessary to give warrant and justification to the exercise of those same powers—say means of execution and means of proof, or, in one word, evidence. Of these two desiderata, the first mentioned is the first in the order of design, and in the order of importance. But in practice, that which is to constitute the warrant, must precede the operation for which it is to afford the warrant.

Here, then, comes the line of distinction—the distinction between that part of the proposed system of procedure, which may be given without the previous exhibition of any part of the system of substantive law, and that part which cannot. The means for coming at the truth, as to matters of fact, are the same in all cases; the means for obtaining and exercising the powers necessary to the giving execution and effect to the ordinances of substantive law, are the same in all cases.

But of this general application of machinery, different ordinances of substantive law require the application of different engines or instruments to be brought into exercise. On which occasion, which instrument shall be brought into exercise, and how applied—this will depend upon the particular portion or article of substantive law, to which, for the purpose of giving effect to it, application is to be made of it.

Taking possession of a man’s body, for the purpose of securing, on his part, compliance with ordinances—ordinances of the substantive law, and thence, those of adjective law employed in giving effect to them. This power, once possessed, is in its nature, applicable to any one purpose as well as any other: to the exaction of service in any shape—to the infliction of punishment in any shape.

So in regard to taking possession of a mass of property: to the above purpose is added, in this case, the allotment of it, in kind or in value, in satisfaction of debts due.

So in regard to the means of communication—of communication between person and person—of communication between persons and things, whether for the purpose of execution, Edition: current; Page: [16] or the purpose of proof—the catalogue of these will require to be a perfect one.

In a word, on looking over the titles of the several chapters of this work, it will be seen, that the points therein respectively brought to view, require all of them to be settled for every extensive substantive code that can be imagined.

But different judicial services—judicial service in different shapes—require so many different operations to be performed, for the application of the general apparatus of powers to their several particular purposes. Different modes of punishment require so many different operations, or sets of operations, to be performed in the application of the general powers over person, property, reputation, and condition in life—to be applied to the purpose of inflicting the particular species of suffering allotted to each species of offence. These, then, must all be given, ere the Procedure Code can be complete.

In the present outline, that which can be done, and accordingly is done, is the bringing to view the course which it is supposed is the best that can be pursued, for the purpose of giving execution and effect to the whole system of substantive law—execution and effect down to that stage in which the execution in each instance (in the instance of each service, and in the instance of each punishment) is actually to be done; the tenor of the definitive decree must be accommodated and adapted to the particular service—to the particular punishment.

On this occasion will be seen one broad feature, by which the here proposed code will be seen to stand distinguished from all codes that ever were established. If the one course here chalked out be the straight one, all those others will be recognized to be composed of aberrations, exhibiting variety of absurdity, and to the unhappy people productive of variety of wretchedness.

Another corollary, of which a general intimation may here be given, is the comparative smallness of the diversity between the course of procedure required for the giving execution and effect to the non-penal branch of substantive law, and the course requisite in the case of the penal branch. For giving appropriate execution and effect to the non-penal branch, appropriate proof must be obtained and employed, and appropriate means of execution provided and applied; and with little if any difference, these will serve as well for penal as for non-penal cases.

In the penal cases of the greatest severity, reluctance as to compliance on the part of the defendant will be greater than in any non-penal case: and for surmounting reluctance, adequate provision, so far as the nature of the case admits, must in every case be made. The reluctance will be as the affliction. But in cases decidedly non-penal, the affliction may, with little exception, be as great as any which, in the far greater number of penal cases, it will be found necessary to produce. Be a man’s property ever so vast, it is frequently, for a purely non-penal purpose—satisfaction to creditors—necessary to divest him of it; and many a man, rather than undergo this affliction, has doomed himself to, and actually suffered, imprisonment for life—for life, and that a very long one.

As to the aberrations—those aberrations by which the course of procedure has been rendered a course of such afflictive intricacy—they will be found all springing from one source,—the opposition of the actual ends of judicature to the ends of justice—the opposition between the interests of those by whose will that course has been regulated, and the interest of the people whose destiny has been disposed of by it.

By this one circumstance, every anomaly will be seen to be accounted for—every object rendered plain and clear: without it, every object will be obscure—the whole system will continue to present to view the same chaos as at present.

Doubtless, without a continual eye to the mass of substantive law in all its branches, no such outline of the course of procedure as the present could have been delineated: but in regard to the objects which it was necessary should be kept in view by the writer, it was not necessary that they should be presented to the view of the reader.

In a case of civil procedure, the previous existence of any offence is not supposed: what is supposed is the existence of a right on the part of some individual to apply to a court of justice, requesting the court to confer on him another correspondent right; but by conferring on the individual so applying the right so applied for, it can do no otherwise than create, on the part of some other individual, a correspondent obligation or mass of obligations: if the individual on whom the obligation in question is thus sought to be imposed, submits voluntarily to have it imposed on him, there is no lawsuit in the case: so, likewise, if without inquiring to know whether he is willing to receive it, the judge imposes it upon him of course.

But if the case be such that the judge, before he proceeds to impose the obligation so required to be imposed, causes application to be made to the party in question, to know whether he be content to have it imposed upon him, and upon such application so made to him, he refuses to submit to have it imposed on him, unless upon further order to be pronounced by the judge (upon hearing the reasons for and against the imposition of the obligation thus contended against)—in such case, a cause, suit, or litigation takes place, Edition: current; Page: [17] and such cause, suit, or litigation, is termed a civil one. In this case, as in the case of a penal one, an offence is still supposed as liable to be committed: nor without the idea of delinquency can this case any more than the other be understood; for in this case a judgment, with an order thereupon grounded, is supposed, in the event of the plaintiff’s gaining his cause, to be issued by the judge. But to the idea of a judicial order, the idea of an act of delinquency is necessarily annexed; for the order has no force, if any act performed in breach of such order be not considered and treated as an offence.

Both an act by which a penal suit is commenced, and an act by which a civil suit is commenced, suppose an act of delinquency or offence: the difference is, that the acts by which a penal suit is commenced, suppose an offence committed already; whereas an act by which a civil suit is commenced, does not suppose any offence committed already—does not suppose any offence as being about to be committed for certain: it supposes only that an offence will eventually be committed, if, upon the judge’s having created, as above, the obligation corresponding to the right required to be conferred, any act in breach of such obligation should come to be committed.

We proceed to the consideration of the several ends of procedure considered in respect of the penal branch of it. The ultimate ends of penal procedure are two. Of these, the main and positive end is the infliction of the punishment in question, including the administering of the several species of satisfaction attached to the lot of punishment in question, in the cases where mixed species of satisfaction respectively have place. The negative ultimate end is the non-infliction of the lot of punishment in question in each case, as the individual in question, in the event of his not having committed or been a partaker in the alleged individual offence, is entitled to have this protection of the innocent.

Collateral or incidental ends of penal procedure: the avoidance, as far as is possible, of the several inconveniences which, in a greater or less degree, are inseparable from the course of action by which a penal suit, action, or prosecution, as it is called, is carried on. These inconveniences, considered in respect of their origin, may be termed by one general or common appellation, juridical or legal vexation.

Of juridical vexations, the principal modifications may be enumerated as follows:—

1st, Consumption of time, understood in a way supposed to be unpleasant.

2d, Confinement in respect of place; obligation of being in some place in which it is unpleasant or prejudicial to a man to be; obligation of not being in some place in which it would be pleasant or advantageous to a man to be.

3d, Pecuniary expense, loss, or charge.

4th, Anxiety of mind, a pain grounded on the apprehension of being subjected to one or more of the modifications of inconvenience above mentioned. Of these several modifications of forensic vexation, the pecuniary expense is the most prominent; and this partly because the existence of it, in a degree worth regarding, is capable of being more precisely ascertained than in any of these other cases; partly because the amount of it is capable of being more exactly measured.

These inconveniences, or some of them, have a mutual tendency to increase and generate each other: confinement in respect of place will oftentimes be productive of pecuniary expense; pecuniary expense, or the apprehension of it, will be productive of confinement in respect of place, viz. in as far as, for the purpose of saving the expense, a man either stays at home, instead of going a journey, or goes a journey, instead of staying at home as he would have done otherwise.

The avoidance of delay is termed an end of the second order; because delay itself, though indisputably an inconvenience, is not in its effects distinguishable from the inconveniences of the first order—the inconveniences to which the several ends of the first order respectively bear reference; for into one or other of these same inconveniences it may in every case be resolved.

In speaking of delay, it must all along be understood, that to the business of the branch of procedure in question, as to every other business, a certain portion of time is altogether necessary; by delay, therefore, neither more nor less is understood than the consumption of any portion of time over and above the portion of time absolutely necessary—the portion of time that would be sufficient for the accomplishment of the several ends of procedure in their respective greatest degrees of perfection, whatever it may be.

So far as the delay continues, so far the main positive ultimate ends of procedure remain unaccomplished.

From delay, again, in certain cases, may arise a result contrary to the negative ultimate end of procedure; in other words, from delay may arise the conviction, and thence the punishment, of the non-guilty; as for example, by the deperition of evidence necessary to the proof of innocence.

From delay may arise forensic vexation in any of its already enumerated shapes.

The avoidance of precipitation may be ranked as an end of the second order, for the same reasons that apply to the case of delay. But the mass of inconvenience of which it is liable to be productive, is upon the whole even less considerable, or at least less diversified. In the case of delay there is a certain inconvenience; for so long as it lasts, Edition: current; Page: [18] there is a denial of justice: in the case of precipitation, there is no inconvenience, but what, in the first instance, is contingent. The inconveniences appertaining to precipitation are no other than the disaccomplishment or frustration of one or other of the two ultimate ends of procedure; in other words, they can scarcely consist of anything else but either the non-conviction of some one who is guilty, or the conviction of, and consequent punishment of, some one who is not guilty. Supposing it to be productive of either of these ultimate inconveniences, precipitation can scarcely be productive of any one of the collateral or incidental inconveniences, viz. local confinement and expense, unpleasant occupation, anxiety of mind: on the contrary, the effect of it is to reduce these several collateral inconveniences to a quantity inferior to that in which they would exist otherwise. In this point of view, so far from being productive of inconvenience, it is productive of advantage—an advantage which would be clear and desirable upon the whole, were it not for the chance of danger of which precipitation is productive, viz. the danger of giving birth to one or other of the two above-mentioned ultimate inconveniences—the inconveniences corresponding respectively to the two ultimate ends of this branch of procedure.

The idea of precipitation may be thus fixed and explained. A certain quantity of time is supposed to be necessary to give room for the several actions and reflections, on the part of the several individuals concerned, which are considered as necessary to afford to the judge the best chance for rendering justice; i. e. for the accomplishment of the two ultimate ends of procedure above mentioned.

Precipitation is considered as taking place, when in any part, anything is supposed to be struck off or defalcated, from the supposed necessary length of time. Thus, if a cause be supposed to be of that importance, that after the hearing of all the proofs, a less time than a week cannot, it is supposed, be sufficient, on the part of the judge, to be employed in the consideration of them, and the time employed by the judge in the consideration of them is no more than a single day; in such cases the judge must, by the supposition, be deemed chargeable with precipitation. If, then, in consequence of such supposed precipitation, the judgment actually given by the judge is repugnant to one or other of the ultimate ends of justice, in this case the mischief correspondent to such ultimate end is actually produced. But in the opposite case, i. e. if the decision of the judge be conformable to the ultimate ends of justice, no mischief at all is produced by precipitation: the contingency is not reduced to act; on the contrary, so far from being productive of inconvenience, the supposed precipitation is productive of advantage upon the whole, since by virtue of it as much time as corresponds to the delay thus saved, is saved.

Thus, again, if the time allowed by the judge for the appearance of a witness is but three days, and the time, which a person whose opinion is supposed to be the standard, would fix upon as necessary for the purpose, is four days, the judge would of course, in the opinion of such persons, stand chargeable with precipitation. If, then, the witness accordingly, for want of sufficient time, fail in making his appearance within the time in question, and for want of his appearance an unjust decision is given by the judge—a decision, contrary to one or other of the two ultimate ends of justice;—in such case, the contingent inconvenience attached to the supposed precipitation, is converted into a real one. But if, notwithstanding the supposed precipitation, the witness does make his appearance within the time, and that without any forensic vexation produced, on the part of him or anybody else (for example, without injury to his health, or to the value of his time, or increase of expense,)—in such case, the supposed precipitation turns out to be no real precipitation, or at least not to be productive of any ultimate inconvenience, nor of any prejudice to any of the ends of justice. On the contrary, the consequence, and only consequence of it, consists in a real and positive convenience, since a portion of delay, to the amount of a day, is saved.

However, even on this supposition, a certain degree of inconvenience may be produced by the precipitation, upon the whole. Since the idea of a judge, whose conduct is marked in general with precipitation, cannot but be productive of a general alarm, for want of the requisite measure of delay and consideration: each person conceiving himself liable to appear in the character of a suitor, will become apprehensive of seeing the ends of justice contravened to his prejudice: he will be apprehensive lest, if he become an accuser, the party whom he accuses be, for want of due consideration on the part of the judge, acquitted, though guilty; lest in the event of his coming under accusation, he may, for like want of consideration on the part of the judge, be convicted.

If the enumeration, made as above, of the several objects to be aimed at in the character of the ends of procedure, is proper as far as it goes, and complete, the several ends will furnish so many principles, by which the propriety of every regulation, proposed in the character of a regulation of procedure, may be tried.

Should any consideration present itself, which, serving in the character of a reason to evince the utility of the provision to which Edition: current; Page: [19] it is thus applied, shall at the same time appear incapable of being ranked under any of the above principles: in other words, though good in itself, i. e. serving to evince the utility of the provision in some other respect, it should be found not to be of a nature to evince the subserviency of the provision in question to any one of the above ends;—in such case, the enumeration of these ends—the enumeration of the correspondent principles—will in so far turn out to be incomplete; on the contrary, if no such independent reason be to be found, it follows that in this single chapter is contained a test by which the propriety of every imaginable provision of procedure may be tried and determined. And in that case, the pains taken in the investigation of them, and in exhibiting the nature of their relation to each other, will not have been ill bestowed.

This catalogue of ends, is it correct and complete, and the relation between the several articles accurately made out and established? The foundations of the rationale of procedure are then laid, and laid for ever. A standard is constructed, by which the propriety of every rule and disposition of law, in this behalf, that has anywhere been established, or can ever come to be proposed, may be tried and determined. A rule of established practice, established anywhere, in this behalf, is it defective in any respect, or supposed to be defective? It must be in respect of its tendency to produce some of the inconveniences corresponding to the above ends. A rule—is it proposed anywhere, as promising to occupy a useful place in the code of procedure? Its utility, if it possesses any, must consist in the tendency it has to be subservient, in some distinct and assignable way or other, to the attainment of one or more of those ends; to the prevention or diminution, in some way or other, of some one article or articles in the corresponding list of inconveniences.

A system of procedure, with what skill soever directed, will be liable, notwithstanding, to give birth to a variety of mischiefs, or say inconveniences. These mischiefs, various as they are, will however be found all of them reducible to the following heads:—

In the penal branch,

1. Impunity of delinquents.

2. Undue punishment, viz. punishment of non-delinquents, or punishment of delinquents otherwise than due.

In the non-penal branch,

3. Frustration of well-grounded claims.

4. Allowance of ill-grounded claims.

5. Expense.

6. Vexation.

7. Delay.

8. Precipitation.

9. Complication.

So many mischiefs as are liable to be found in a system of procedure, so many mischiefs to be avoided in every such system: so many mischiefs, the avoidance of which may in any such system be considered as respectively constituting so many ends to be kept in view.

If the catalogue of these mischiefs be complete, no provision that can be proposed can be entitled to a place in any such system, but in so far as it can be shown to be conducive to the attainment of one or more of these several ends.

If, at the same time, it is seen to be more conducive to one of these ends, than to another or others, to which it is sure to be repugnant, a comparative estimate will then be to be made; and for the purpose of this estimate, one point to be ascertained will be the comparative importance of the end or ends on both sides, i. e. of the mischiefs concerned on both sides; in the next place, the degree of conduciveness on the part of the provision in question with reference to each such end.

In casting an eye over the catalogue of these mischiefs, some may be observed, the avoidance of which—the complete avoidance—is, in conception at least, a possible result: to this head may be referred the four first articles, and the eighth,—impunity of delinquents—undue punishment—frustration of well-grounded claims—allowance of ill-grounded claims, and precipitation. Others there are, of which not even in conception can the exclusion appear possible: to this head belong the articles of expense, vexation, delay, and complication. Of these, it will be seen immediately, that to a certain degree they are inseparably and essentially attached to the business of procedure: in these instances, the object is not to exclude them altogether, that being plainly impossible, but on each occasion to reduce their respective degrees or quantities to minimum, to the lowest pitch possible.

In looking over the same list again in another point of view, another remark that may be made is, that in some of the instances the result thus given as mischievous is mischievous in its own nature. To this head belong, evidently enough, the first six articles—impunity of delinquents, undue punishment, frustration of well-grounded claims, allowance of ill-grounded claims, expense and vexation. In other instances, the result, though still indubitably mischievous, can hardly be said to be so in itself; it would not be so, were it not for the property it has of giving birth, or its tendency at least to give birth, to some one or more of the articles in the list last mentioned: to this head belong the other remaining articles—delay, precipitation, and complication.

Among the mischiefs of the first order, two, and two only, are such, that the ends corresponding to them can be said with propriety to constitute the direct and ultimate ends of the system of procedure. These are, in the Edition: current; Page: [20] penal branch, impunity of delinquency: in the non-penal branch, frustration of well-grounded claims. In the penal branch, the avoiding to administer punishment when undue, is certainly an end of very high importance, and altogether necessary to be attended to with unremitting and anxious care. It cannot, however, with any propriety, be stated as constituting an ultimate, a primary, a direct end of the system of procedure. Why? Because if there were no system of procedure at all, this end would be but the more completely and effectually accomplished.

This same observation may, it is equally evident, be extended with equal propriety to four other of the above ends—to that which consists in avoiding to give allowance to ill grounded claims, and to those which respectively consist in avoiding to give birth to those unhappily inseparable accompaniments of every system of procedure, viz. expense, and vexation in other shapes.

The two ultimate ends—avoidance to produce or suffer impunity on the part of delinquents—avoidance to produce or suffer frustration of well-grounded claims;—these two ends, though thus for the sake of unity, symmetry, and analogy, expressed in a negative form of words—in a phrase of a negative construction—are capable of being expressed more naturally and perspicuously by a phrase in the positive form: accomplishment of the punishment of delinquency—effectuation of well-grounded claims.

In the penal branch, the application of punishment, with its attendant masses of satisfaction in the case where the offence imputed has really been committed; the avoiding the employment of such coercive measures in every case where the offence has not been committed: in the civil branch, the collation of the right demanded, in the case where the collation of it is required by a correspondent provision of the substantive law—the collation of such right, and therewith and thereby, the creation of the correspondent group of obligations; the avoiding the employing those same coercive measures, in the case where the creation of the correspondent right is not required by the substantive law:—

All these measures, both in the penal branch and in the civil, the observance of all these conditions, is comprised in one expression, viz. rendering justice—taking that course in every case which coincides with the track marked out beforehand by the finger of the substantive law.

It being established, that the proper end and object of the system of procedure is to render justice as above explained,—the justice that will naturally be understood as that, the rendering of which is the end or object thus spoken of—is the real justice of the case: meaning by real justice, that which is such in contradistinction to whatever else may appear to be such—in other words, as before, that the course taken shall be what really is conformable to the indication given by the correspondent portion of substantive law, in contradistinction to what, if there be a difference, is in appearance, and but in appearance, thus conformable.

The distinction thus made wears the appearance of subtlety, and even useless subtlety; but when applied to practice, it will, besides being explained, be shown to be, in more points of view than one, of very considerable importance.

It will be seen, in the first place, that between real or abstract justice, and apparent justice, there is in many cases a very palpable difference: in the next place, that when they fail of coinciding, it is rather apparent justice, than real and abstract justice, that is the direct end, and immediately important object of the system of procedure.

In another work,* I have already had occasion to hold up to view, as a distinction of cardinal importance, the distinction between mischief of the first order and mischief of the second order; and so in like manner of good, in so far as that result is among the effects of the action in question, instead of evil as before. But it is only good or evil of the first order that constitutes the effect produced by real justice: the good and evil of the second order depends wholly and solely (speaking of immediate dependence) upon apparent justice. If the decision given, being a decision by which a man is subjected to punishment, be conformable to apparent justice,—in other words, if the universal persuasion, the persuasion entertained by everybody to whose notice this case presents itself, is that the man was guilty,—in such case, though by the supposition the decision is contrary to real justice, and though, in virtue of the suffering of the party punished, mischief of the first order is produced, yet the mischief remains barren; no mischief of the second order, or alarm, is, by the very supposition, produced by it.

Suppose, on the other hand, the party accused is really guilty of the offence: a decision is given, pronouncing him so, and he suffers accordingly: the decision is in this case, by the very supposition, conformable to real justice. But if it be unconformable to apparent justice, in other words, if according to universal persuasion the man is looked upon as not guilty, a mischief of the second order is produced—an alarm; and that alarm by the supposition is as strong as if the party, thus looked upon as innocent, had been so in reality.

In the same way, mutatis mutandis, the distinction between real and apparent justice may be applied in the non-penal branch of procedure. The distinction being thus explained, Edition: current; Page: [21] it remains now to bring to view, by way of example, a case, or a few cases, in which it is realized, and from thence to show, (what however will appear pretty clearly without much showing,) the importance and utility of this distinction in practice.

When, having been prosecuted, a man who in the general estimation of the public appears to have been guilty, is acquitted; by the observation of such acquittal,—by such impunity as in that case is said to be manifested by it, a mischief of the second order, an alarm at any rate, is produced.

A general apprehension is entertained of similar manifestations of delinquency, and similar mischiefs, as the probable result of such similar offences. Offences are apprehended, in the first place, from the agency of the individual himself, thus triumphing in impunity, and encouraged to go on in the path of guilt by the experienced receipt of the profit of the offence, clear of the punishment endeavoured by the substantive law to be attached to it: offences of the like description, or indeed in a greater or less degree of all descriptions, on the part of other individuals—of all individuals who, standing exposed to temptation, may by the observation of the impunity enjoyed in the instance in question, be disposed to yield to it. Such are the evil effects which, in a greater or less degree, take place, as often as a man who, in the general opinion of the public, appears to have been guilty, is observed to have escaped punishment.

If the case were such, that as well in the case of guilt, as in the case of innocence, reality and appearance always went together;—in that case, no such spectacle of impunity could by the supposition ever be exhibited. But in fact, this want of coincidence between real and apparent justice is observed to take place in but too many instances.

On this occasion, the repugnance admits of two evils, both equally conceivable. One is, that the party appearing in the eye of public opinion guilty, shall notwithstanding, at the conclusion of the suit, have been treated by the judge as innocent, in a manner unconformable to justice; in other words, shall have been acquitted.

The other is, that the party appearing in the eye of the public innocent, shall notwithstanding have been treated by the judge as guilty; in other words, shall have been convicted in a manner unconformable to justice.

Of these two cases, the former is a case that, as will be seen, is but too frequently realized. A variety of causes, each of them adequate to the production of the effect, and accordingly each of them very frequently producing it, will be mentioned further on.

The other is a case which, though not absolutely without example, is happily, there is reason to think, very seldom realized.

In regard to impunity, that the case of a man who, though guilty, and as such prosecuted, has notwithstanding been acquitted, is a frequent one, no person whatever—no judge, no advocate, no person, how partial soever in his affection to the established system, will ever attempt to deny: the utmost that any such person could ever think of affirming, and even this is more than persons so situated will in general be disposed to affirm, is—that when a man has thus been treated as innocent, and as such acquitted, he has accordingly been innocent in reality; and that the decision, though apparently unconformable to the disposition of the substantive law, was in reality conformable to it—that the decision, though not conformable to apparent justice, was conformable to real justice. The argument thus supposed, would very seldom indeed be found conformable to the fact; but what is material to the present purpose is, that even though it were conformable to the fact, it would not be sufficient for the justification of the system of procedure, in which the contrariety in question were manifested. That a system of procedure be good—that it be well adapted to its proper end, it is not sufficient that the decisions rendered in virtue of it be conformable to real justice; it is necessary that they should be conformable to apparent justice: to produce real justice, the only true way is to produce that which shall in the eye of public opinion be apparent justice. In point of utility, apparent justice is everything; real justice, abstractedly from apparent justice, is a useless abstraction, not worth pursuing, and supposing it contrary to apparent justice, such as ought not to be pursued.

From apparent justice flow all the good effects of justice—from real justice, if different from apparent, none.

On the other hand, in this same distinction may be observed a circumstance which operates in some degree as a remedy to a great deal of injustice—injustice which will be seen to be no less entitled to the appellation of real, than apparent injustice. In some cases, in some countries, it will happen, from causes that will be elsewhere mentioned, that although particular instances of injustice, at once real and apparent, are manifesting themselves every day, yet, from the operation of these causes, a considerable degree of confidence will notwithstanding be entertained in the system of procedure, as having a general tendency to produce, in the decisions given under it, a conformity to the prescriptions of justice. In this case, the opinion, though erroneous, and founded on prejudices capable of being pointed out, will, in the way above spoken of, be productive of salutary effects. Were the system viewed in its genuine colours, the alarm produced by it—the alarm of insecurity—would Edition: current; Page: [22] be extreme and universal. But by the effect of this prejudice the alarm is lessened; the mischiefs resulting from the imperfection of the system cannot, be the prejudice ever so strong, escape wholly from observation, but the mischiefs, instead of being ascribed to their real cause, the imperfections of the system of procedure, are ascribed to the nature of things. That justice very frequently fails of being done, is a truth too palpable to be disputed—too palpable to pass unobserved, or unacknowledged; but the notion is, that whenever it can be done, it is done; that if in any case it fails of being done, it is because in that case, in the nature of things, it cannot be done. The confidence in the system remains in a manner entire—as entire as if its title to that confidence were ever so real and indisputable.


The arrangements in this proposed Procedure Code bear reference to a correspondent judiciary establishment, without which, execution and effect could not be given to them.

For the list of arrangements proposed for the establishment of it, see the Chapters in the Constitutional Code, from XII. to XXVII. inclusive.

Of the leading features of the system of arrangements, the following summary intimation may in this place, notwithstanding the scantiness of it, be not altogether without its use.

Exceptions excepted, and those few and narrow, and for special causes:—

1. Number of judges in a judicatory, in no instance more than one. Judicatories, each of them single seated. Principle, in one word, the principle of single-seatedness.

2. To the cognizance of every judicatory belong all sorts of cases, or say suits. Principle, in one word, the principle of omnicompetence.

3. From every judicatory, in every case, appeal lies, to one other judicatory, and no more. The judicatory appealed from, the immediate judicature: judicatory appealed to, the appellate judicatory.

4. Attached to every judicatory are—1. A registrar; 2. A government advocate; 3. An eleemosynary advocate: the eleemosynary advocate, for support to the interests of the otherwise helpless, among suitors.

5. Presiding each over a certain number of immediate judicatories, are appellate judicatories: the number, such as the experience of the need manifested of their service, shall have indicated.

In federal commonwealths and countries in which the population is thin, distance great, and means of communication comparatively rare, it may be of use that they be scattered over the country; and where sub-legislatures have place, for every sub-legislature, and in the town which is the seat of it, there should be an appellate judicatory: and thus, by the efflux of suitors to the judicatory, and of members and other functionaries of the legislature, a good public, filled with appropriate aptitude—moral, intellectual, and active—may in each of these seats of business be created and preserved.

But in England, on the contrary, where the communication is so prompt, and the occasions and means so abundant, the demand for a number of appellate judicatories in so many places distant from each other, seems hardly to have place. The metropolis, the immediate centre of all business, which at all times will be sure to afford a public, with the aptitude of which no other town can bear comparison, may serve for all of them.

6. To every judge belongs the power of locating deputes, permanent and occasional, in number to which no present limits can be assigned. To the judge-principal belongs a salary in possession: to each judge-depute permanent, the office of judge-principal, with the salary annexed to it in prospect. By this means, the quantity of judge-power, using the term in the same sense as in the cases of clerk-power and horse-power, will be at all times in sufficiency, at no time in excess. A man will not accept the appointment of judge-depute, in the case where the number of persons already in that situation reduces the prospect of succession to a quantity too small to produce the desire. A judge-depute is as it were an apprentice to his principal, learning his trade in the course of his service.

7. As to the office of judge, so as to the several offices of registrar, government advocate, and eleemosynary advocate, is the power of deputation as above allotted.

8. When time has given room for judge-deputes in sufficient numbers (each with sufficient length of service) to come into existence, no person will be capable of being located as a judge-principal, who has not, for a certain number of years, officiated as judge-depute.

9. At the same time, no person who has ever acted in the capacity of professional lawyer, will be capable of being located in the situation of judge.

10. In every judicatory, to serve as a check upon arbitrary power in the situation of judge, care will be taken to secure the presence of a good public, or say committee of the public-opinion tribunal. Elementary classes, and individuals entering into the composition of this committee, are these:—

(1.) Suitors waiting for the calling on of their respective suits.

(2.) Probationary lawyers, serving in this Edition: current; Page: [23] seat of judicature a quasi-clerkship, or apprenticeship,—duration of it five years,—during the two last of which, they are admitted to advocate the suits of helpless litigants, or would-be litigants rendered helpless by non-possession of the money necessary to the defraying of the expense.

(3.) The government advocate.

(4.) The eleemosynary advocate, i. e. the advocate appointed by government to give assistance on the side of litigants, and would-be litigants rendered helpless by relative indigence as above.

(5.) The quasi-jury, on the occasion of quasi-jury hearings.

11. The elementary functions, necessarily exercised on the occasion of every judicial inquiry, are—1. The auditive; 2. The inspective; and, 3. The lective.

12. The helpless litigants’ fund, or fund for defraying the expense necessary to effect the forthcomingness of such evidence as the suit may happen to furnish: a fund partly composed of fines, or say mulcts, inflicted for pursuits accompanied with temerity or evil consciousness.


As in the case of substantive law (constitutional law, penal law, and non-penal law included,) so here, in the case of procedure law, the subject-matters of legislation are distinguished into—

1. Persons.

2. Things immoveable.

3. Things moveable.

4. Money.

5. Occurrences.

Persons are distinguishable, for the purpose of the procedure code, into functionaries, and non-functionaries.

Functionaries into judicial functionaries, or non-judicial, or say extra-judicial functionaries. For a list of these functionaries, see Constitutional Code, Chap. XII. Judiciary collectively.

As to things immoveable, and their distinctions, see Constitutional Code, Chapter IX. Ministers collectively, § 7, Statistic function.

So, as to things moveable.

So, as to money.

So, as to occurrences.

Occurrences may be distinguished into judicial-procedure-affecting, and miscellaneous.

As to the judicial-procedure-affecting occurrences, they will be found comprisible under one or other of the four heads following:—

1. States of things.

2. Actions, or say operations, at large.

3. Actions, or operations, consisting in the utterance of judicial formularies.

4. Judicial formularies, or say instruments.

By a judicial formulary, or instrument, understand a written or quasi-written discourse, uttered on a judicial occasion, and for a judicial purpose, by some person or persons belonging to the list as above, of actors in the judicial drama, or on the judicial theatre.

In the case of each such actor, distinguishable in respect of the occasions as they occur in the course of the judicial drama,—will be the instruments which may come to be uttered by them as above.

Commenced, in every case, will be the judicial transaction, by some person acting in the character of an applicant, and not by the judge.

Exceptions excepted, on no occasion can the judge, as such, give commencement to any judicial proceeding. For exceptions, see Constitutional Code, Chapter XII. Judiciary collectively, § , Sedative function.

For purposes other than that of giving commencement to a suit, may judicial application be made to a judge.

So many species of applications, so many species of applicants.

Persons to whom written judicial instruments emanate from a judge, are either—1. Functionaries; 2. Non-functionaries.

Functionaries are, as above, either—1. Non-judicial; or, 2. Judicial.

Judicial functionaries are, with reference to a judge of the grade in question, either of the same grade, or of a different grade: if of a different grade, they are either of a superior or an inferior grade. Co-ordinates are those of the same grade; super-ordinates, those of a superior grade: subordinates those of an inferior grade. Subordinate to every judge are all non-functionaries.

On a special occasion, for a special purpose, a functionary who, in ordinary, or say in general, is, with reference to the judge in question, super-ordinate, may be subordinate.

Addressed to a subordinate functionary, or non-functionary, a written instrument, expressive of the discourse of a judge, is a mandate, a judicial mandate.

To the nature of the judicial mandate addressed to him, will be referable the nature of the response, if any, transmitted or addressed to the judge, in compliance with, or in consequence of it.

The persons to whom, in consequence of a judicial application made to the judge, judicial mandates are addressed, will be determined by the course taken by the application; and where the application is terminated in (and gives commencement to, and is thereby converted into) a suit, by the course taken by the suit.

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The course taken by a suit is composed of, or say marked out by, the several operations, successively or simultaneously performed by the several actors, at so many successive times, posterior to the commencement of a suit.

The applicant, for whatsoever purpose applying, will, as above, have made his appearance without mandate, or judicial instrument of any other kind, received from the judge.

His examination for the day finished, the judge will either dismiss the application altogether, or continue it.


§ 1.: General Division.

On no occasion can it fail to be matter of satisfaction to the mind, to feel that it has within its grasp the whole of the subject-matter which it has taken for consideration. But on every such occasion, a movement necessary to this purpose is the occupation of the universal vantage ground, by ascending to the summit of the porphyrian tree. To endeavour to communicate to the mind of the reader this pleasurable sensation, is the business of the present chapter.

Expressed at length, judicial procedure is the subject of the present work. This being premised and understood, procedure alone is the denomination which, for brevity’s sake, will in future be employed.

On every occasion, procedure has alike for its object the giving execution and effect to this or that article of the substantive branch of the law.

On every occasion, the substantive branch of law has for its objects one or other of two results: giving effect to some right, or applying the appropriate remedy to some wrong. Correspondent to these two objects of the substantive branch of law, are the two species of processes, called suits, in adjective law. Correspondent to effectuation of rights, is a simply requisitive suit. Correspondent to application of remedies to wrongs, are inculpative suits.

Judicial procedure is an aggregate of connected actions, exercised by divers actors; the first of which has, or professes to have, for its object, or say end in view, the giving on some individual occasion, for some individual purpose, execution and effect to some determinate portion or portions of the substantive code, or say branch, of law.

Procedure may be divided into—1. Operations; 2. Instruments; 3. Stages.

Operations are—1. Application; 2. Probation; 3. Security finding; 4. Counter-probation; 5. Execution.

Applications are either contestational or non-contestational. The contestational are suits. Suits are simply requisitive or inculpative.

The instruments of procedure are—1. Personal; 2. Real; 3. Written. Personal, the functionaries. Real, the judiciary apparatus. (See Constitutional Code.) Written, the contents of the Register.

Stages are—1. Original inquiry; 2. Quasi Jury inquiry; 3. Appellate inquiry.

§ 2.: Operations.

Operators and operations. On this occasion, as on every other, be the end what it may, to one or other of these two heads will be found reducible whatsoever, in the relation and character of a means, is contributing to the compassing, or say accomplishing or fulfilling of it. Operator, the real entity; operation, the fictitious, emanating as it were from the real entity.

The idea attached to the word operation is a modification of the idea designated by the word action, as that is of the idea attached to the word motion.

Instead of the word operators, a convenience will be found in the use made of the word instruments. And though the existence of the real entity, an operator, is precedent, where it is not concomitant to the quasi-existence of the fictitious entity designated by the word operation,—yet for developing the idea designated on this occasion by the word operation, and bringing to view the several sorts of actions, it was found to claim, by an indisputable title, the precedence.

In the instrument called language, or say discourse, at any rate in all the generally known modifications of it, note on this occasion an imperfection, the inconvenient effects of which will be continually exemplifying themselves: the want of two different appellations for the designation,—one of the act, or say the operation—the other, of the result, whatever it be, of that same act or operation. The consequence is, the necessity of employing, for the designation of two ideas so widely different, one and the same word. Unfortunate indeed is the existence of this imperfection.

It pervades and fills with perplexity the whole texture of the language. Every word that terminates in tion, and many of them that terminate in ment (both derived from the Latin, and common to the Italian, French, Spanish, and Portuguese, as well as the English,) is infected with it.

Application is the act of a party—the party-pursuer—requiring execution, execution and effect, to be given to some article of the body of the law.

Execution, when ordered, is the act of the judge, rendering the service required at his hands by the suitor.

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Probation is the act of the suitor, necessary to give warrant and authority for the service so demanded at the hands of the judge.

Execution requires to be distinguished and divided into ultimate and provisional.

Probation requires in like manner to be distinguished and divided into provisional and definitive: and that on the part as well of defendant as pursuer.

Of provisional execution, the need is accidental only, not general and constant. It consists in the doing that for a time, and in such sort, as to be eventually undone should the case be found not to require the performance of definitive execution: of which provisional execution, the performance is no otherwise consistently with justice performable, than as necessary to secure the eventual performance of definitive execution, should the case be found to require it.

By accommodation, understand that operation which is performed as often as a person, who is not a party to the suit, steps in and lends his assistance to a party on either side, for the purpose of saving him from an injustice, or hardship coupled with injustice, to which he might otherwise be subjected, in the course of the operations necessary to the prosecution of his pursuit or defence.

In so doing, the person by whom the accommodation is afforded, to one or other of the parties at least, and perhaps to both, subjects himself of necessity to one essential, and frequently to several distinct and contingent hardships: no other person is admissible for the purpose of liberating a party, on the one or the other side of the suit, from an otherwise inevitable present disadvantage.

Thus, in actual English technical practice, the two persons who, under the aggregate appellation of bail, are admitted to render to a party defendant the service which consists in causing him to be liberated from an imprisonment of indefinite duration, to which the rigour of the course of procedure would otherwise subject him, are not admitted to the performance of this beneficial service but upon condition of either eventually re-consigning him to that affictive situation, or discharging in favour of the pursuer the obligation, to subject him to which, was the object of the suit.

Subject to these conditions, the initiatory allegation has, to the purpose of warranting provisional execution (so shaped as not to be productive of irreparable damage,) the effect of probation, provisional probation. But, for the purpose of rendering the provisional execution definitive, it requires to be subjected to the controul of any such counter-evidence as may be adduced by the defendant, together with evidence, probative of facts, if any such there be, the tendency of which is, to do away with and render of no effect any facts to which it has happened to be sufficiently established by the evidence advanced on the pursuer’s side.

Intimate is the connexion between all these several operations: necessary are all of them but one, to wit, auxiliary bondsmanship, to the due termination of every suit, on the pursuer’s side.

In two opposite orders, they are capable of being brought to view:—1. The order in which they are contemplated; 2. The order in which they are performed.

In the order in which they are contemplated, they stand thus:—1. Application 2. Execution (execution being the only object to which the application is immediately directed;) 3. Probation, having for its object the engaging the judge to take measures for eventual execution.

Probation commences with application. Abhorrent to natural procedure is the distinction between allegation, or information, and evidence. In technical procedure alone—in that system alone which had for its object the generation of lies, for the purpose of maximizing the number of groundless suits and defences,—could any such distinction have originated. So many instances in which admission and effect is given to allegation, which, for the purpose of being punishable in case of mendacity, is not considered as evidence, so many instances in which admission and effect, and thereby allowance and encouragement, is given to mendacity. Innumerable are those instances: not a suit that does not commence with one of them; and of the endless chain of them, the first links are occupied in depriving of liberty any man at the pleasure of any other, by whom the faculty of exercising oppression in this shape is ready to be purchased of the judge at the estalished price.

§ 3.: Instruments.

Correspondent to operations are instruments. For every operation there must be an operator. If by a single action the operation is performed, there is no room for an instrument. Associated with the word operator, is the idea of an intelligent being; with the word instrument, that of a non-intelligent being: if, then, the appellative instrument is applied in speaking of a person, it must be in an improper and figurative sense; but to save words, using the word in this figurative sense will, notwithstanding its impropriety, be frequently found a matter of convenience.

Of the above-mentioned operations, the system called procedure has been found composed: to one or other of these heads, every operation performed in the course of it will be found reducible; for every one of those operations, therefore, there will be found instruments.

Beings being either persons or things, hence Edition: current; Page: [26] we have personal instruments and real instruments. But portions of discourse in a written form, partake of the nature of those two subject-matters of consideration and operation: being the discourse of persons communicated by a sort of things, and the use of them being so extended and so continual,—hence the need of speaking of a third sort of instruments, to wit, written; within the import of which must be understood to be comprehended quasi-written, for the purpose of those which, though not exactly of the nature of written signs, are nevertheless employed sometimes in the production of the effect.

Personal instruments are sub-operators—instruments in the hands of a super-operator; prekensors, for example, in the hands of the judge.

1. Correspondent to application—the operation—the fictitious, is applicant the operator, the real entity.

2. Correspondent to probation—the operation—the fictitious, is probator, the really existing entity. Probator is accordingly the term presented by analogy. Unfortunately, the idea it presents is too ample—it is that of the success of the operation termed probation; whereas little less frequently is the one followed by non-success than by success. To keep clear of misrepresentation, to the office here brought to view, another term, by which nothing is decided as to success, must be found: instead of probator, say then evidence-holder—an appellation unfortunately two-worded, for a single-worded one could not be found.

Instruments of application. Personal instruments are the applicants. Applicants may be either principal, or auxiliary—lending their assistance to the principal: and will be either professional or gratuitous. Thus on the occasion of every judicial application, whatsoever may be the object. So, in particular, on the occasion of that sort of application, to which it happens to be converted into a suit.

Real instruments of application, none.

Written instruments of application are any such portions of discourse in a written form, as it has happened to the application to give existence to.

Instruments of probation are personal, real, or written. Personal instruments of probation are persons, considered either in the character of narrating witnesses, or as posseasors of sources of real or of written evidence. In all three cases, there will be an advantage in speaking of them by the common appellation of evidence-holders; holden in the breast, until it is uttered, is the evidence of the narrating witness.

Narrating is the epithet applied to one species of witness, to distinguish him from a very different sort of witness (though the two characters are so frequently, as it is always desirable that they should be, is one person,) a percipient witness. In the breast of the percipient witness is the source of the information—the organ of the narrating witness is the channel through which it is communicated to the judge. Turbid are the ideas of lawyers under technical procedure; correspondently scanty, and in proportion inadequate, their vocabulary. Obvious at once, and necessary, is the distinction between the percipient and the narrating witness. Never till in this work, or those which have emanated from the same source, have words been employed in giving expression to it.

Yet how important is this distinction!—Small, indeed, it will be seen, is the probative force of the narrating witness, who has not been a percipient witness, in comparison of that of him who has.

Probative force—not even that term did the technical vocabulary contain in it. Yet, without it, in what way or by what discourse can you express that which there will be found such continually-recurring need to express.

Yet another distinction. For giving expression to it, say—litigant witness, or non-litigant witness: and as synonymous to non-litigant witness, say upon occasion, extraneous witness. In every modification of the technical system, of the testimony—the narrative of a party litigant, has more or less use been made; yet in none of them has he been spoken of in the character of a witness: on the contrary, between the character of a party and that of a witness, the existence of a sort of incompatibility has been tacitly assumed.

Yet in domestic procedure—in that procedure which, being coeval with the origin of the species, was in existence and use before the technical system existed, even in imagination—seldom is a narrator to be found, who is not either himself a litigant witness, or imbued with the same affection, and liable to be turned aside from the path of truth, by the same biases.

And oh what inconsistency—what twistings and turnings, when of one and the same party litigant the testimony is admitted in some cases, excluded in other cases—in some cases rigorously exacted, in other cases left optional! And from the commencement of the reign of technical procedure to the present time, how enormous must have been the mass of that injustice, of which this exclusion, and the unilateral, and thence partial, admissions deduced from this source, must have been productive! For these exclusions, coupled with these admissions, had there been any ground in reason, human society antecedently to the institution of the technical system, could not have continued its existence. But of this hereafter.

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Accommodators. Novel as it is, as a substitute to the long-winded and many-worded appellation—the person by whom accommodation is afforded to another—this, or some other universal appellation, must of necessity be employed. Necessity warrants the appellation—practice will, ere long, familiarize the import of it.

A work of beneficence is, on every occasion, the work of the accommodator; of benevolence generally, and thence presumably; of beneficence constantly and unquestionably. Beneficent accommodator, is therefore a denomination by which, without impropriety in any shape, the accommodator might be designated. But for as much as there cannot exist an accommodator who is not beneficent, the word beneficent is not necessary, and after this explanation may be spared.

Correspondent in some sort, though very imperfectly and inadequately, to execution, is executioner. In a sense co-extensive with that of execution—in the phrase giving execution and effect, it is spoilt for use, by the association it has contracted with the idea of an operator exclusively employed in giving execution to a mandate of penal law, productive of an effect in the highest degree afflictive. For by the word executioner, when presented by itself, will be presented the idea of a functionary employed in giving termination to life, in the person of a defendant in the suit.

Another conjugate of the word execution, and, like executioner, the name of the really existing entity, is executor. But for use, as applied to the present purpose, this denomination is also spoilt: executor being the denomination given to the species of trustee, to whom, by the will of a person deceased, the disposal of his property, reckoning from the time of his decease, has been intrusted.

In case of need, for the designation of the person employed in giving execution and effect to a portion of law, the term executant may perhaps be found employable.

Correspondent to communication is communicator. Unfortunately, this word labours under the same imperfection, as the word probator has been seen labouring under. Included in the idea presented by it, is that of the effect endeavoured at, as being actually produced. The appellation on this occasion needed, is one by which a person employed in making, or endeavouring to make, communication of the subject-matter in question, shall be designated.

In case of need, as the word executant, so the word communicant, both of them related by analogy to the word applicant, may perhaps be found employable.

Correspondent to recordation is recordator—for shortness, termed recorder: correspondent to the synonymous appellation registration, is registrar. In this case these is no difficulty, no difference between endeavour and performance. He who records not anything is not a recorder: he who records anything is a recorder, be the recorded matter ever so little, or ever so much: and so in regard to the registrar.

§ 4.: Judication.

Before any application can be made, there must be in existence an authority, to which at any time it can be made. This authority is that of the judge, sitting in that which has been called the judicial theatre. Of the several classes of persons who are as it were actors on that theatre—of their several fimetions and duties, a description has been given in the Constitutional Code, Chapters from XII. to XXIX. inclusive. Reference to that portion of matter must be understood to be made in and by everything that here follows.

Coeval with application and probation, is judication: as to application, under the natural system of procedure, all application is probative. Without the judge’s being at the same time applied to, and acting at the very time that he is applied to, an application cannot in any case have place. Without permission to proceed, no applicant can be suffered to proceed. Hence, then, it is by application made by an applicant that the first moment is occupied: but it is by the applicant and the judge in conjunction, that occupation is given to the next moment, and thereafter to the number of minutes whatever they are, during which, at the initiative hearing, the intercourse continues.

On each occasion, to what judicatory shall or may application be made? The answer is short, and will naturally be satisfactory: To that judicatory, from application to which, the aggregate convenience of the several parties may most effectually be promoted and provided for.

No difficulty can have place in those cases which will always be of by far the most frequent occurrence. These are, where the residence of both or all parties is within the territory of the same judicatory, and where the subject-matter of the suit is also within that same territory.

The only case in which any difficulty can present itself, is that in which, the actual residence of the party applying to be admitted pursuer being in the territory of that same judicatory, the actual residence of other parties, co-pursuers or defendants, is in the territory of a different judicatory—the actual residence of each one of them, being at the same time capable of being different from the habitual residence: hence, by ringing the changes upon these differences, the following different cases are producible.

For holding communication between a judge Edition: current; Page: [28] and a judgeable, the communication beginning with the judge, there are two modes—the oral and the epistolary. All other circumstances equal, the oral, it will be seen, is by far the best adapted to each of the several ends of justice: to the avoidance of non-decision and misdecision—to the avoidance of delay, vexation, and expense. But when the residence, habitual or actual, of the judgeable, is at a certain distance from the judicatory, then comes the question,—whether the advantage in respect of avoidance of non-decision and misdecision (to wit, through the inferior instructiveness of the evidence when elicited in the epistolary mode in comparison of the oral mode) preponderates or not.

On this consideration, exceptions (if any) excepted, no otherwise, it is understood, can application, if made, be entertained, than when made in the oral mode. And what is moreover understood is, that the judicial locations will be to such a degree numerous, and the plan of partition by which they are marked out, to such a degree equal, that from the attendance of a person at the judicatory, no considerable inconvenience will in general be produced.


§ 1.: Rules as to minimization of evil.

On each occasion, have constant regard for all the several ends of justice; that is to say, minimize the sum, or the balance of evil, composed of the evils opposite, respectively to these ends.

Of the several elements of value as applied to pleasures and pains, thence to good and evil, magnitude—the compound of intensity and duration—being the most apparent, be careful not to overlook those, which when the good or evil in question is distant, are most liable to be overlooked or undervalued—namely, propinquity and probability.

In like manner, in the case of any maleficent act or practice, whether on the part of persons at large, or on the part of judicial functionaries, forget not to take into account the evil of the second order,—to wit, the second order, composed of the danger, and the alarm, the publicly diffusive evil; any more than the evil of the first order—composed of the single-seated, and the domestically diffusive evil.

§ 2.: Rules as to irreparable evil.

As to irreparable evil. It may be such either—1. absolutely, or, 2. relatively: absolutely, to wit, in its own nature, relation had to the nature of man in general; relatively, to wit, relation had to the condition of the particular individual or individuals concerned. Death is so, in its own nature: pecuniary evil—pecuniary loss—is, in its own nature, in a greater degree more easily reparable, than evil in any other shape. Evil of a comparatively inconsiderable amount may be irreparable, relation had to the individual or individuals concerned.

Evil which, whether absolutely or relatively considered, is irreparable in itself, may also, relatively considered, not be irreparable in the way of equivalent.

Death is the only shape in which evil, on the part of the immediate sufferer, is certainly and invariably irreparable.

In the way, and by means of compensation, there is no evil to which it may not happen to be, in the instance of the individual in question, reparable in the way of equivalent.

Relation had to the individual in question, an evil is reparable, and exactly repaired, when, after having sustained the evil and received the compensation, it would be a matter of indifference whether to receive the like evil, coupled with the like compensation, or not.

What is manifest is—that to no person, other than the individual himself, can it be known whether, in his instance, between an evil sustained, and a benefit received on account of it, any compensation have place or not.

Considered with a view to its irreparability, the evil which an individual is liable to suffer is susceptible of the same division and distinction, as the sorts of offences to which an individual stands exposed: in the evil which is the result of the offence, may be seen the sole reason, or rational cause, for the endeavour, on the part of the legislator, to exclude or minimize it.

In this case, to minimize evil, have more especial care to exclude all such as is irreparable.

Irreparable evil may be produced—1. For want of a judicial mandate; 2. By a judicial mandate.

The sides liable to be affected by it are—1. The pursuer’s; 2. The defendant’s side of the suit.

Causes or sources, from which irreparable evil is mostly liable to flow, are—

1. Deperition, or ultimate non-forthcomingness, of the means of execution.

2. Deperition, or ultimate non-forthcomingness, of the means of proof, or say, sources of evidence.

Deperition, or ultimate non-forthcomingness, of means of proof, includes, if complete, deperition of the means of execution; to wit, in favour of that side, to the interest of which, in case of the proof, the execution would have been subservient.

Of a failure of the means of rommunication, deperition, or ultimate non-forthcomingness, Edition: current; Page: [29] as well of means of proof as of means of execution, may be the result.

By execution, understand as well reciprocal, as direct: direct, it is called, in the case where the object of it is to render to the pursuer the service demanded by him; reciprocal, where it has for object the rendering to a defendant compensation for, or security against, vexation and expense produced by the pursuit.

When there are two antagonizing lots of evil, considered as liable to be produced, the one on the pursuer’s side of the suit—the other on the defendant’s—two evils, both irreparable, or the evil on one side reparable, on the other side irreparable, forget not to take into account the magnitude and value of each. On this occasion, let not the imagination be deluded by the impressiveness of the idea attached to the word irreparable. Loss, though certainly irreparable to the amount of a shilling, will not be to be guarded against with so much anxiety, as a loss, though perhaps reparable, to the amount of a pound.

In a wrong-imputing, yet not penal, private suit, the irreparable evil to be guarded against is, deperition of the means of compensation, or other means of satisfaction, for the wrong execution in respect of the service demanded by the pursuer’s, at the charge of the defendant’s, side.

In a purely public penal suit, the irreparable evil requiring to be guarded against, for the sake of the pursuer’s side, is the impunity of the defendant, in the case of his having been, in the shape in question, a delinquent.

In every sort of suit, the irreparable evils requiring to be guarded against, for the sake of the defendant’s side, are—1. On erroneous, or inadequate grounds, conviction, and consequent burthen of compensation, or punishment, or both, imposed upon the defendant: he in truth, not having been guilty, not having committed the wrong imputed to him, or any other similar to it. 2. The evil composed of the vexation and expense to which, by means of the suit, he may be subjected—the evil correspondent, and opposite to, the collateral ends of justice.

§ 3.: Rules for the guidance of the judge in the exercise of his ulterior powers.

On each occasion, the direct and first care and endeavour of the judge, will be the fulfilment of the direct ends of justice; to wit, by taking such course, or doing that which in each individual instance shall be most conducive to the fulfilment of the direct ends of justice, positive and negative; further, to wit, the causing to be rendered when, and in so far as due, the service demanded by the pursuer.

His next care will be the fulfilment of the collateral ends of justice; to wit, by minimizing, on each occasion, the quantity of evil in its several shapes, delay, expense, and vexation at large, at the charge of the several classes of persons, in relation to whom his powers will have to be exercised.

When, and in so far as, the collateral ends of justice on the one part are seen to antagonize with the direct ends of justice on the other, it will be his care to pursue that course, by the taking of which, the balance on the side of good is greatest upon the whole.

On each individual occasion, as a security for the maximization of the aggregate of good, and the minimization of the aggregate of evil, he will settle in his own mind, and make public declaration of, the reasons by the consideration of which his conduct has been determined; which reasons will consist in the allegation of so many items in the account of evil, on both sides: magnitude, propinquity, certainty, or say probability, and extent,—being in relation to each head of good and evil, taken into the account.

Proportioned to the clearness with which those reasons are conceived, will be his own assurance and satisfaction of the conformity of his proceedings with the ends and dictates of justice: proportioned to the clearness with which they are expressed, will be the satisfaction afforded to the superordinate authorities to whom he is responsible.

For these purposes the constitutional code, on the principles of which this procedure code has been grounded, gives to his legal power a latitude, to which in general there are no fixed limits; and, at the same time, maximizing according to its utmost endeavours, the efficacy of the checks provided for preventing such his powers from being employed to any sinister purpose.

With a view to the collateral ends of justice, the following are among the cautions which he will have to observe:—

The applicant having been received, in the character of pursuer, or pursuer’s proxy, and in support of the application, his evidence, appropriate or simply indicative, or both, elicited—the judge will not, in relation to any other person of whatever description (a proposed defendant, proposed witness, if any, or proposed co-pursuer, if any,) perform any operation liable to be productive of vexation or expense, unless in his view of the matter, taking such evidence for correct, a probability has place, that at the charge of the proposed defendant, the service demanded, or some other, more or less analogous to it, is due.

To the minimization of avoidable delay, he will have especial regard. Of delay, every moment beyond what is necessary to the direct ends is detrimental to the direct ends, Edition: current; Page: [30] as well as to the collateral ends, of justice. To the direct ends, by the intermediate eventual decease of the pursuer, by chance of deperition of sources of evidence on both sides; and in case of personal evidence, not already in writing, danger of diminution of clearness, correctness, and completeness, by faultiness of recollection. To the collateral ends,—to the prejudice of the pursuer’s side, in so far as in the right, by and in proportion to the vexation attached to the non-possession of the service due—and incidentally by and in proportion to the expense, the need of which may have been produced by intervening accident; to the prejudice of the defendant’s side, if in the wrong, in the greatest number of individual cases, it will not be; since the longer it continues, the longer he remains exempted from the service sought to be exacted at his charge.

But in so far as he is in the right, he stands exposed by it, equally with the pursuer, to sufferance, to the prejudice of the direct ends of justice, by deperition and deterioration of evidence, as above: and proportioned to his assurance of his being in the right, is the vexation he experiences from the apprehension of being ultimately regarded as being in the wrong, and on that account unduly subjected to the service, which though not due, is demanded at his charge.

But, of two or more applications made at the same time, no one is there which may not of necessity be made to suffer delay by the just demands made by others, in an indefinite number, upon the judge’s time.

What may also happen is, that by deferring that which in the natural order of inquiry would be the next judicial operation to be performed, advantage may be produced, preponderating over the disadvantage, to any or all the ends of justice. As often as this is the case, the judge will accordingly defer, to some future time indicated, the performance of such next judicial service: but for reason, and justification, he will bring to view the particular incident or incidents by which exception has appeared to be made to the general rule.

In Buonaparte’s civil code, the parties being in the judicatory of the justice of the peace, admitted into the presence of each other and the judge,—great is the anxiety expressed to prevent confusion on the occasion of such altercation as may naturally be expected: and on that account, for the prevention of that inconvenience, no person other than the judge is authorized to put a question to any other. In this anxiety, no cause for disapprobation can assuredly be found, especially when the character of the people he had to deal with is considered.

In English judicature, all cause for any such anxiety is effectually excluded: not existing in the presence of the judge, parties cannot quarrel or annoy each other in the presence of the judge. Saving the sparingly exercised right of the judge to put questions, to no party on either side is any question put by any sort of person but an advocate: nor, unless between advocate and advocate, or in an extraordinary case, in guarded terms, between advocate and judge, can altercation in any shape have place.

Among the cares of the judge, will in like manner be the minimization of the number of persons, of whatever description, operated upon by the exercise of his power; as also, in the instance of each such person, the number and vexatiousness of the operations imposed upon them respectively.

Accordingly, between the individual by whom, in each instance, the compliance necessary to the reddition of the service in question is to be produced, he will avoid interposing without necessity any intermediate hand. The reasons are—

1. By every such intermediate hand, so interposed, is produced a chance of delay, and a chance of ultimate failure.

2. By every such intermediate hand, so interposed, is produced vexation, if no compensation, or no more than inadequate compensation, be accorded: and in so far as compensation is accorded, expense.

Middle-agency-sparing, is the name given to this rule.

Of the application capable of being made of the middle-agency-sparing rule, examples are as follows:—

1. As per Constitutional Code, Chap. XII. Judiciary collectively. Giving to each immediate judge, once in possession of a suit, the faculty of operating for the purpose of it, in the territory of any and every other immediate judge; instead of an address from the judge of the originating judicatory, to the judge of the territory in which such several operations have to be performed; for though, for various purposes, notice of what is done may be requisite for the information of the judge in whose territory the operation is to be performed; so is it also, at the same time, for every needful purpose, sufficient.

By deferring the operation till after an answer from the judge in question had been received, or time for the reception of it elapsed, proportionable delay would be produced, and that without need or use.

When, for the purpose of justice, at the charge of any person, whether in the situation of defendant, or any other, the transfer of any subject-matter of property is to be made, let not the co-operation or consent of such person be made necessary to the validity of such transfer. If, at the hands of the person in question, disclosure of any matter of fact relative to such property be necessary, it will be exacted accordingly; but to no effect Edition: current; Page: [31] for which such disclosure may be requisite, can concurrence in any way, in the act of transfer, be needful or of use.

§ 4.: Inflexible regulations, none.

For minimizing evil, the main caution is, in no case, on no occasion, to lay down inflexible rules (in particular, inflexible rules as to quantity)—rules of which on any occasion the effect may be to prevent the minimization of evil in the individual case calling for decision at the hands of the judge.

The pretence in this case is, the avoiding to place arbitrary power in the hands of the judge. But the good thus sought is illusory. In the hands of a judge, power, in whatsoever degree arbitrary, is no otherwise an evil, than in so far as its effect is to produce evil in a tangible shape—to wit, human suffering—in the breasts of individuals. But where an inflexible rule, as to the quantity of anything, is laid down, the chances against its not producing evil in excess, are as infinity to one.

Against abuse of power, the only effectual, or efficient security, is composed of responsibility: substantial, punitional, and dislocational responsibility, legal and moral.

For the prevention of the abuse of power, on the part of judges, the appropriate place is accordingly, not so much in the procedure code as in the constitutional code.

For exemplification of the evil certain of being produced by inflexible rules in regard to quantity, take the three capital objects—matter of satisfaction, matter of punishment, and length of time.

First, as to the quantity of the matter of compensation, or other means of satisfaction. If there be a case in which, of the compensation thus inflexibly fixed, the quantity be deficient—in such sort deficient, as to be inferior to the profit obtainable by the wrong—it operates, by the amount of the difference, as an inducement to commit the wrong, instead of operating as a means of repression for the prevention of it.

So likewise in the case of punishment. If in the case of any crime, the punishment is, all things taken together, clearly inferior to the profit obtainable in the individual instance in question, by means of the crime, the effect of the so-called punishment is to operate by the amount of the difference, not as a repressive bond, for the prevention, but as an incentive and encouragement towards the commission of the crime. To one offence (by which in the individual case in question, the delinquent has gained £100,) let £10 and no more have been the sum fixed on, the obligation of paying which, constitutes the sole punishment imposed. The effect of the law is, to operate as a bounty upon the commission of the prohibited act—of the act thus inexpertly prohibited—as a county to the amount of £90, subject to the deduction of the expense, and the equivalent for the vexation in other shapes, attached to the situation of defendant, in these cases.

In the article of satisfaction and punishment, provision against improvidence in this shape belongs obviously to the field of penal law, not directly to the field of judicial procedure. Of improvidence in this shape, the marks are in a particular degree conspicuous in Buonaparte’s codes.

Now as to the fixation of length of time: length of time, allotted for the performance of various sorts of operations. In general, the pretence, or expected good, is avoidance of delay: but in general, besides the production of the opposite evil, precipitation, and thence the evil correspondent and opposite to the direct ends of justice, it has for its effect increase of delay, or increase of expense and vexation, or all three.

A year was the maximum to which Frederick the Great of Prussia fixed the greatest length of a suit at law in his dominions: not small was the service he was regarded by himself and by many another well-wisher to justice, as having by this exploit rendered to justice. What was the consequence? In the first place, wheresoever the quantity of business necessary to the avoidance of the evil opposite to the direct ends of justice (positive and negative) could not be performed within that time—production of the evil correspondent and opposite to the direct ends of justice. In the case of a to a certain degree complicated mercantile account, for example; in the case of the death or insolvency of a large capitalist, having extensive dealings with foreign states, this could not but be frequently exemplified; and in any case, by the expatriation of a single witness, if a necessary one, the same impossibility of rendering justice within the so allotted compass of time would be produced.

Of a rule thus improvidently all-comprehensive, delay, the very evil sought to be thus remedied, would naturally be not uncommonly among the fruits. This being the length allotted to the sittings, a judge to whose sinister interest delay showed itself favourable, would avail himself of the ordinance, to run on to the full length of it. This, he would say, is what the ordinance requires. Well, to this ordinance I have paid unquestionable obedience.

Under the English system, generally speaking, fixed lengths of time are allotted for every operation; lengths of time without any the smallest regard to the quantity of time necessary to the ends of justice—the different quantities demanded by different distances between place and place—the differences in respect of the degree of complication Edition: current; Page: [32] in the causes—the abodes of parties and necessary witnesses; in a word, not any the smallest regard is, in any part of the system of fixation, paid to the circumstances, nor therefore to the interest or feelings, of any of the individuals concerned.

In so far as the time is rendered unsusceptible of enlargement, here, in many instances to a certainty, is evil to a vast amount necessitated—evil, in that shape in which it is correspondent and opposite to the direct ends of justice. In so far as it is susceptible of being enlarged, here is a quantity more or less considerable, added to the fixed quantity of delay, vexation, and expense; for application must be made to the judicatory—application for the additional quantity of time. In support of the application, evidence must be produced—application with fees to solicitors, advocates, subordinate judicial officers, and perhaps judges—evidence carefully manufactured into the most unapt, delusive, and expensive shape.

Thus goes on the game of leap-frog, between strictness and liberality—each being in this, as on every other occasion, covered by a thick coating of well-paid and self-applied applause.

In English practice, whenever you see or hear the word strictness, expect to see injustice: you will seldom be disappointed.

Of the judicatories self-styled Equity courts, dilatoriness is, to the knowledge of everybody, the characteristic and most glaring cardinal vice. But could any unpaid eye endure to look into it, precipitation might be seen carried to a no less high degree of perfection: precipitation, by which in an extensive class of cases, the production of the evils correspondent and opposite to the direct ends of justice is habitually and with certainty secured.

Even at the commencement of every suit, in this kind of judicatory, the time allotted is, in most instances—considering the work that is to be done by it, and the lengths of necessary journeys—too short to admit of the work being done: for remedy, on payment of £1: 7s. to Judges and Co., two several additions may be made, by the half of which, it is rendered in most cases too long. A temptation is in every case held out to purchase a third length of delay: but under this indulgence lies a trap, in which the comparatively inexperienced law-practitioners are frequently caught, and this in such sort as to produce, to the dismay of their respective and unsuspecting clients, the evil correspondent and opposite to the direct end of justice;—the client loses his cause, because, willingly or unwillingly, his lawyers have been deceived.

§ 5.: Substitution to inflexible rules.

Of the several rules laid down in this code, there is not one that is meant to be regarded as inflexible: no one is there, from which, in case of necessity, the judge may not depart. But as often as he thus departs, the constituted authorities (the public-opinion tribunal included) will be looking to him for the reason—the specific reason or reasons, by the contemplation of which, such departure shall have been produced; and as often as he does this, without the assignment of any specific reason, he will be considered as having violated his official duty.

Every such reason, will consist in an indication of the evil which, in the individual case in question, would result from compliance with the rule: and with a proof, that by the aberration, either no evil in any shape has been produced, or none but what has been out weighed by concomitant good.

So in regard to exceptions. In many instances where a rule is laid down, in the terms of it, reservation is made of exceptions, and a string of exceptions is thereupon subjoined. To every such rule, the judge is at liberty to add an exception; but for every such exception, an appropriate and sufficient reason will be looked for at his hands.

§ 6.: Which side is most likely to be in the right?

Antecedently to the view presented by the inquiry into the particular fact of the individual case, the general presumption arising out of the several relative situations will be in favour of the pursuer’s, which is as much as to say, in disfavour of the defendant’s side.

The general reason is, that without some ground of assurance and belief in respect of the correctness of his judgment, it is not likely that a person would engage in, or would subject himself to the vexation and expense attached to, the character of pursuer, even in case of success,—together with the still more ample eventual quantity in case of ill success. Thus on the score of mere self-regarding interest, particularly when the force of the additional restriction, applicable by sympathetic affection is added—a moral power which, how weak soever in comparison with self-regarding affection, should not in this, any more than any other case, be left altogether out of the account.

At the same time, the greater the success with which the endeavour to attain the ends of justice, direct and collateral, is crowned, the less will be the difference produced in that respect between the two correlative situations. The less the vexation and expense attached to the situation, the less effective will be the restraints, the tendency of which is, to prevent a person from embarking in it.

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In so far as the present proposed code is rightly directed to those exclusively legitimate ends, strong is the contrast it will be seen to form with the English system of procedure, not to speak of others less renowned for a supposed regard for the ends of justice.


§ 1.: Judicial Application—what.

The system of judicial procedure, it has been seen, has for its proper object, the giving execution and effect to the ordinances of the legislature.

The functionary, by the exercise of whose function execution and effect is given to the ordinances of the legislature, is the judge. The means by which that result is produced, is the rendering to a person, who having need of it, makes application to him accordingly for the sort of service, by the rendering of which the result is produced. Name of such appropriate services—judicial services.

The species of application by which such judicial service is called for, call it a demand.

The aggregate of the whole operation produced by a judicial demand, from the demand to the last operation by which execution and effect is given to the portion of law in question, both inclusive,—call it a suit in law, or for shortness, a suit.

In English practice—by a denomination manifestly inappropriate and productive of continual confusion—it is also called a cause.

But the case in which a demand, made at the hands of a judge, for services tending to the giving execution and effect to some corresponding portion of the text of the law, is the service called for,—is but one out of several cases in which, for judicial service tending to the production of that effect, application may be made, and that application complied with.

Accordingly, of divers sorts of application, by each of which judicial services of the tendency in question are applied for, and demanded—the application called a judicial demand, and by which, if ordered, commencement is given to a suit, is but one.

By a judicial application, understand an application made to a judge as such—by any person other than a judge as such.

By any person who is desirous of obtaining judicial service in any shape, a judicial application may accordingly be made.

By judicial service, understand every such service as a judge, as such, is warranted by law in rendering to any person or persons.

The services which it belongs to a judge as such to render, will be mostly those which are rendered in contentious, or say contested cases,—that is to say, cases in which a suit has been instituted, and continues depending. But neither are cases wanting, in which, without any suit instituted, it belongs to the judge to render certain appropriate services. So many of these cases—so many are the different purposes, for which a judicial application may be made. Certain cases, moreover, there are, in which, for the adjustment of the different interests concerned, judicial services may be necessary, even where no disagreement as between party and party has taken place. Of this sort is the case where the demand made to the judge is simply requisitive, and not, with relation to any party, either criminative or inculpative.

§ 2.: Applicant’s Judicatory—what.

It being desirable, in so far as practicable, that the territory in which the person in question will be most likely to be called upon to pay judiciary attendance, should be the territory in which he has his most ordinary habitation, in contradistinction, and in preference to, every more distant judicatory: hence it is desirable, that by persons in general, considered in respect of the need they may have to make judiciary application, it should be understood what, in the case of an applicant, is meant by his judicatory—as in the case of a judge, by his territory.

By the applicant’s judicatory, understand the judicatory belonging to and situate in the sub-district in which, as housekeeper or inmate, as per Election Code, the applicant has his settled habitation, if any such he has. If, in each of divers sub-districts, he has a settled habitation, or divers settled habitations, so many as there are of these sub-districts, so many are his judicatories.

To an applicant who has a settled habitation elsewhere, but not in the sub-district to the judicatory of which he makes his application—as also, to an applicant who has no settled abode,—the judicatory, whatsoever it be, to which, on the occasion in question, he makes such his application, is, on and for that occasion, his judicatory; say his occasional judicatory.

Of the facility thus afforded to persons in the character of judicial applicants, no increase of vexation to persons having occasion to act in a judicatory in any other character, such as that of a defendant, or that of a witness in a suit, will, it will be seen, be the result.

In every case, therefore, any person whose desire it is to make application to a judicatory for any purpose, may in the first instance make application to his own judicatory.

If, the design of his application being to commence a suit against any person, the domicile Edition: current; Page: [34] of that person is within the same local field of judicature, the case is in that respect the ordinary case. If such intended defendant has not any domicile within that same field, the case is in that respect an extraordinary case. It constitutes one of the natural causes of obstruction to the course of justice; provision for which is made elsewhere.

On hearing him, the judge will inform him what course to take.

§ 3.: Order of making application.

For all persons waiting to be heard as applicants, the station is in the visitors’ gallery: as to which, see Constitutional Code.

On entrance into the gallery, the intended applicant receives from the doorkeeper a ticket. The tickets are numbered in numerical order. He who, at or after the opening of the door, came first, received a ticket No. 1; he who came next, No. 2; and so on.

Immediately as the business of an applicant is finished, the judge or registrar makes a sign to the door-keeper of the gallery. The door-keeper, calling to the expectant applicant whose number entitles him to be next heard, looks at his ticket, and directs him forthwith to the applicant’s station.*

If applicants more than one are desirous of speaking on the same occasion and in support of the same application, they must first have agreed among themselves as to the order in which they shall speak; if the whole number persist in speaking together, they will all of them be made to withdraw, until they have agreed upon the order of procedure as above.

If, with desires mutually opposite, a number of applicants offer themselves to speak on the same occasion, in relation to the same matter, each struggling to be heard before the rest, the order of procedure will be decided among them by lot.

§ 4.: Personal Attendance.

Purposes for which the personal attendance of an applicant in the justice-chamber, while making his application, may be necessary or useful, with reference to his own desires, are—

1. Furnishing appropriate evidence as to facts, collative and ablative; say Appropriate-self-serving-evidence-furnishing.

2. Furnishing indicative evidence as to the above; say Indicative-evidence-furnishing.

3. Furnishing, at the instance of the judge, any such evidence as (though the tendency of it may be contrary to his desires) may be necessary to the preserving of other persons from vexation and expense, contrary to the ends of justice; say Furnishing self-disserving or confessional evidence.

4. Furnishing security against undue vexation imposable upon others, on the occasion of the application; say Responsibility-affording.

5. Furnishing means of co-enduring communication with him, for the purpose of the application; say Accessibility-securing, or means-of-communication-affording.

6. Receiving from the judge, warning against the damage liable to be sustained from sinister interest of proxies, professional or even gratuitous; say Tutelary-advice-receiving.

7. Receiving at the best hand, i. e. in an immediate way, the advice of the judge as to proceeding or not proceeding in the application; as to the mode best adapted to the ends of justice; say Ulterior-course-concerting or settling.

As to Responsibility-affording:—Evils against which, on the occasion of a judiciary application, appropriate security may be necessary, are—

1. Waste of judicatory’s time; thence delay, or even denial of justice, to those who otherwise would at so much the earlier time, have been litigants.

2. Undue vexation and expense, to persons whose interest, according to the service demanded by the application, may come to be detrimented by ulterior proceedings. But, in so far as the applicant, though he be not the principal, can give as good security against these evils as the principal could, his attendance may be as useful as the principal’s.

As to Accessibility-securing, or means-of-communication-affording:—The uses of securing adequately lasting means of certain communication with the applicant, are two, viz.—

1. Securing to him, if granted, the service demanded.

2. Securing the public and individuals against the evils just mentioned.

Hence the persons, communication with whom should be secured, are—1. The principal at any rate; 2. The applicant, if a person other than the principal. But in so far as this security can be as effectually afforded by the applicant, as by the principal, the principal’s attendance is needless for this purpose.

As to Tutelary-advice-receiving:—As to this purpose, in so far as the need has place, the demand for the principal’s attendance is strongest. True it is, that if the need exists, it may be made visible to him, by the record of what passed between his proxy and the Edition: current; Page: [35] judge, and that for the purpose of such advice, the judge may, if he sees reason, command the principal’s attendance. But, on the matter of the record, he may be more or less ill-qualified to form a judgment for this purpose. And there may be reason for his receiving the judge’s advice, though by indolence, or some other motive, the judge may be prevented from commanding his attendance for that purpose.

As to Ulterior-course-settling:—If the case be such, that the principal has need of the judge’s tutelary advice as above, the ulterior course, which it will be most fit for the procedure to receive, may depend upon the nature of such tutelary advice.

These considerations will serve as a memento to the judge, to be on the watch, for the need which may have place in relation to this tutelary advice.

As to Confessorial-evidence-furnishing:—For the prevention of evils to other interessees, true it is that the attendance of the principal may, after the attendance of the proxy, require to be exacted. But supposing it exacted time enough for such preventive purpose, the exaction of it, in the first instance, is to this purpose needless.

§ 5.: Applicants—who.

On the occasion of a judicial application, applicants require to be distinguished, in the first place, into principals and proxies.

A principal applicant, is he by whom the application is made on his own account. A proxy applicant, is he whose application is made on an account of another, or others. In respect of a joint-interest, the same person may be applicant on his own account, and likewise on account of his co-interessees.

In relation to the benefit, or the burthen which is the object of the application, the applicant may be possessed, or not, of special interest, or any peculiar and self-regarding interest, in the subject-matter of the application. A person, the purpose of whose application is the procuring some benefit for, or the averting some burthen from, an individual or a community, with whom he is not connected by any special tie of self-regarding interest, is an applicant not possessed of any special interest in the subject-matter of his application.

A special interessee, may be so either on a purely self-account, or on a purely trust-account, or on a compound-account.

In so far as a person is interested on behalf of another, to whose interest he stands bound to give special support, he is styled a trustee on behalf of such other, or others; and the interest he thus possesses is styled a fiduciary interest; and the law by which he is so bound, is styled a trust-creating law: the person on whose account—for whose sake, the trust is created, is styled a principal in the trust, or say a benefitendary.*

When a trust is created by law, as above, it may be either with or without the instrumentality of a person or persons operating to that purpose: when it is with such instrumentality, the person or persons so acting may be styled trustee, or trustees. In this case, there are three parties connected and jointly interested:—to wit, 1. The benefitendary; 2. The trustee; 3. The trustor or trustors; or say, the trust-maker or trust-makers.

In some cases, the trustor and trustee may be the same person: in these cases, the trustee is a self-constituted trustee; or say, an uncommissioned trustee.

When it is by the benefitendary that, under the sanction of the law, the trust is created, and a person or persons constituted and created trustee or trustees, it is by contract between such benefitendary on the one part, and the trustee or trustees on the other.

Examples of trusts and trustees, created by act of law, without the instrumentality of any person or persons, are as follow:—

1. A husband, acting and applying on account of his wife.

2. A father, in quality of natural, that is to say, law-located guardian to his son or daughter under age.

3. A mother, in default of her husband, in quality of natural, that is to say, law-located guardian to her son or daughter under age.

4. A guardian, in the case where, without need of his own instrumentality, he is law-located as such, in relation to a person under age.

5. A guardian, in the case where, without need of his own instrumentality, a person is constituted such, with relation to a person labouring under mental derangement.

Examples of trusts and trustees, created such by act of law, by and with the instrumentality of the trust-maker, but without Edition: current; Page: [36] the instrumentality of the beneficiendaries, are as follow:—

1. A testamentarily-located post-obituary administrator: the beneficiendaries in this case, with or without the administrator himself, are the co-interessees, as above, in the mass of property left vacant by the death.

2. The case where a person, desirous of conferring a benefit on a certain person or persons, invests a mass of property in the hands of a trustee or trustees, in trust, to be disposed of in a certain way mentioned, for the benefit of a person or persons in the character of a beneficiendary, or set of beneficiendaries.

Examples of trusts and trustees, created under the sanction of the law, by the trustor and trustors, and the beneficiendary and beneficiendaries, in the way of contract, are—

1. The case of a general agent and his principal; a general agent, to wit, or trustee, to whom the principal, as beneficiendary, entrusts the management of his pecuniary, and other interests in general. To this head belongs the case of a steward receiving the whole income of his principal.

2. The case of a special agent, acting in the capacity of a steward of a particular landed estate.

3. The case of the manager of a manufacturing concern.

4. The case of an agent or factor, acting in the sale of a particular article, or set of articles, whether in the way of ordinary sale, or in the way of auction.

5. The case of an agent or factor, acting as such, in behalf of a principal, habitually or temporarily resident in a foreign country.

In the Constitutional Code throughout, but more particularly in those chapters which concern the business of the administrator’s department, may be seen mention made of divers functions, as exercisable by public functionaries, for the benefit of the public. In the instance of many, if not all of them, functions of the same nature, and thereby susceptible of the same denomination, are exercisable, and everywhere habitually exercised, by individuals in the character of trustees, on behalf of individuals, and bodies of men, in the character of beneficiendaries.

Examples of applicant co-interessees are—

Where a partner attends on account of himself, and his co-partner, in respect of the partnership estates.

A person attending on account of the mass of property belonging to an individual, or a partnership, in a state of insolvency.

A person attending on behalf of a body-corporate associated by law, and being or not being a member thereof.

A person attending as a representative, or member of a body of persons associated either promiscuously or on a special occasion, and for a special purpose, but not incorporated by any legal instrument.

A person attending, in a case of alleged and supposed necessity, in the character of a self-constituted trustee, for any of the classes of principals above mentioned, on the ground that, by negligence or sinister design, or by reason of a blameless want of appropriate information on the part of the proper trustee or trustees, the interest of the principal would, but for such application, be exposed to suffer irreparable damage.

§ 6.: Interessees—who.

A person who on any account makes judicial application to a judicatory, becomes, by so doing, or assumes himself to be, an interessee.

Interessee is a word bearing reference to some subject-matter. By an interessee, understand a person possessing a legal interest (an interest sanctioned, or considered as being about to be sanctioned, by law,) in the way of profit or loss in some assignable subject-matter.

Such interest a man may possess either on his own account, or on that of another: if, and so far as it is, on his own account, it is a self-account interest; if, and so far as it is, on account of another person or persons, it is a trust-account.

A person who, with reference to the same subject-matter, is a self-account interessee and a trust-account interessee, may be styled a joint-account trustee.

An applicant, applying on behalf of a number of self-account co-interesses, is with relation to them a representative: he is on that occasion their representative; if he is one of their number, a joint-account representative; if he is not of their number, a trustee-representative.

Of an interessee’s becoming such, the cause is, either his own agency alone, or the agency of some other person or persons alone, or his own agency in conjunction with that of some other person or persons. In the first case, he is a purely self-constituted interessee; in the second case, a located interessee; in the third case, a consenting located trustee.

A located trustee, is located either by the law, that is to say, by the legislature alone, with or without his consent, or by the law and some other person or persons jointly. In the first case, there is no trustor; in the second, there is a trustor, or set of trustors.

Of cases in which a trustee is located by the law alone, examples are as follow:—

A father, in respect of the power exercised by him in relation to, and over his children.

A husband, in respect of any such power as is given him, by law, to he exercised in relation to, and over his wife.

A guardian, in respect of the power over the person and property of his or her ward, Edition: current; Page: [37] in so far as established by law, without need of concurrence on the part of any person.

A trustee may be such, either without power or with power over persons or things.

A self-constituted trustee, as above, is a trustee without legal power. Without commission from any beneficiendary, or any located trustee, or the law,—undertaking the performance of a certain service, for the benefit of the beneficiendary, he constitutes himself, in so far, a servant of such beneficiendary: and for damage done to any person, on the occasion of such service, or supposed or pretended service, he is compensationally, and in case of sinister design, and evil consciousness or temerity, punitionally responsible.

Of joint-account representative applicants, examples are as follow:—

1. A person applying as member of a private partnership.

2. A person applying as member of a jointstock company.

3. A person applying as one of two or more trustees, located as such, with power over a mass of property, placed at their disposal, for their own joint benefit.

Wheresoever a trustee is located as such, a trust is said to be established.

By a trust, understand a power, burthened with obligation—with the obligation of giving to the power such exercise, as in some particular way to render it serviceable to some person or persons, determinate or indeterminate, in any number, up to that of all the inhabitants of the political state.

Parties to every trust are—first, a person or persons by whom the service is intended to be rendered; second, a beneficiendary or beneficiendaries, to whom the service is intended to be rendered.

If it were by a single individual, that the trustee or trustees was or were located, he, in relation to them, is locator—sole locator; if divers individuals, each of them is a joint locator.

A trustor, by whom a trust is established by the location of a certain trustee or certain trustees, with power for continuing the trust, and preventing its extinction, by successive acts of location, may be styled the founder of that same trust.

§ 7.: Application how commenced.

At the proper station, the applicant sits or stands in silence, until addressed by the judge.

Judge to applicant:—What is it you have to tell us of?—

1. A service which you claim, for yourself or any one, at the hands of any one?

2. A wrong for which you claim, for yourself or any one, satisfaction at the charge of any one?

3. A public offence, as to which you are ready to give us information?

4. Or anything, and what else?

After utterance of the introductive question, ending with the words tell us of, the judge makes a short pause, to give time to the applicant to say, Prepared, sir, or, I am prepared—if such be the case.

By the word prepared, the judge understands that the applicant is sufficiently prepared to state the nature of his application, under one or other of the above heads, without need of assistance from the judge.

If no such intimation is conveyed, then only it is that the judge proceeds to enumerate the several above-mentioned purposes, and modes of contentious application, that the applicant may settle with himself, and declare to which of them the matter he has to state belongs.

If, for want of appropriate aptitude, the applicant is unable to give, in the first instance, an intelligible answer to the above questions, in such manner as to refer the case to any one of the general heads already brought to view, the judge will continue hearing and interrogating him, till the import of his application is sufficiently ascertained.

For giving facility to these examinations, as well as for other purposes, a set of appropriate tables will have been provided, and kept hung up in the justice-chamber, in such manner as to be legible to the greatest possible number of persons at once; as also the like in smaller form, in such sort that one copy may be held in hand by the applicant, and another by the judge.

Examples of these tables are as follows:—

Table 1. Table of services exigible, or rights obtainable, containing a list of the several sorts of effective services, which by the corresponding judicial services performed by the judge, one person may claim at the hands of another, without the imputation of wrong from the not having rendered them; adding to each service the several efficient causes of the right or title to receive it.

Table 2. Table of wrongs, private and publico-private, with the correspondent remedies; consisting in modes of satisfaction, with or without modes of punishment added or substituted to satisfaction, as the case may be.

Table 3. Table of purely public wrongs, with the correspondent remedies.

For these several tables, heads and matter may be seen in the Introduction to the Principles of Morals and Legislation, and in the Traitè de Législation Civile et Pénale.*

If the applicant can read, the judge causes such of these tables as may serve for his assistance to be put into his hands, having in his own hand or view, copies of the same: if the applicant cannot read, the copy which Edition: current; Page: [38] the judge has, assists him in putting questions or giving instructions to the applicant, as the case may require.

If the application be contentious, the conversation will proceed as per Chapter XII. Initiatory Hearing.

If the application be uncontentious, the applicant will name it as above by its appropriate generic denomination.

To save time, these denominations will not, like the others, be recited by the judge. They are of comparatively rare occurrence; nor will they need, any of them, to be made by any person who is not able to explain himself sufficiently on the subject; to wit, either by perusal of the code, or by previous conference with some friend, from whom sufficient instruction and direction will have been obtained.

In any case, it may be either on the applicant’s own account, or on account of some other person, that the application is made. But how the matter stands in this respect, the judge will without difficulty understand from the applicant’s statement. Interrogations to that effect need not therefore be included in the judge’s address as above.

For the several cases in which one person may make application on behalf of another, see Chapter XII. Initiatory Hearing.

At the commencement of the conversation, or at any time in the course of it, if it be clear that the applicant can read, the judge with his hand may point to, and if near enough, touch the spot on which the legend containing the warning against falsehood is displayed: as to which, see Chapter Judiciary Collectively (Ch. XII.) in the Constitutional Code.

In the case of an information, he will take the same course as above for ascertaining the nature of the wrong complained of, or the service to which the party in question has a right.

If it be the case of a wrong, as it commonly will be, and most commonly that of a crime, he will collect from the informant whether he be or be not desirous or content to be a pursuer, alone or in conjunction with some other individual, or the government advocate, or both; which done, he will determine as to the complying or not complying with the desire.

In this case more particularly, a question table to come under consideration will be, whether the fact spoken to in the information be the criminal act itself, or only a fact capable of operating in the character of circumstantial evidence; and in both cases, whether according to his account the informant was in relation to the fact in question, himself a percipient witness, or whether all he has to speak to is his having reason to believe that another person, known or unknown to him, may probably have been, in relation to it, a percipient witness. In this latter case comes the demand for investigation, as explained in another chapter.

As already observed, there is no sort of case in which there may not be need of such investigatory process, nor any in which the service rendered to parties by the employment of it may not outweigh the vexation and expense. But in England, it not being employed but in cases regarded as belonging to the highest classes of crimes, or in judicatories into which the eye of the public scarcely penetrates, those higher classes of cases are the only ones in which the need of it can be expected to present itself to the generality of readers.

As to the person, if any, to whom the address shall be made by the judge before any is made to the defendant,—here again is a point in relation to which an option will be to be made by the judge.

So likewise in regard to the three several modes of address above mentioned.

On this occasion, too, will come the consideration whether to consign the function of pursuer to the government advocate; and no sooner does reason sufficient for this operation present itself, than the judge will perform it accordingly, that his opinion and decision respecting the points above mentioned may be heard.

§ 8.: Application—its purposes.

In regard to purposes, the leading principle seems to be, that to all purposes that can with propriety be termed judicial, the faculty ought to be open to exercise; and to render the purpose judicial, it is not necessary that on the occasion in question a suit should actually have been instituted. It is sufficient, if either a probability having place that a suit of a certain description will be instituted, it will in probability be conducive to the ends of justice that the service aimed at by the application should be granted; or that if the service be granted, a suit conducive to the ends of justice may in probability be instituted, and the ends of justice thereby attained, in a case in which, but for this same service, a suit might otherwise not have been instituted, and thereby the ends of justice might have failed of being attained.

Cases there are, in which, though strictly speaking the business is not of a judicial nature, inasmuch as no contestation hath as yet place, and though at the hands of the judge no judicial termination of a suit may come to or be intended to be called for,—yet among the powers necessary to be exercised for the accomplishment of this desirable purpose, are some of those which are indisputably attached to the office of judges. Of this sort is the evidence-eliciting power and function.

On the present occasion will be added certain Edition: current; Page: [39] powers, the demand for the exercise of which is created by some accident, or other event, by which it cannot without previous inquiry, that is to say, elicitation of evidence, be ascertained whether or not there may not be litiscontestation, and in consequence of it, demand for the exercise of powers exclusively attached to the office of judge. Had the state of facts been previously known, the powers necessary to the production of the desirable effect—for instance, the staying or reparation of calamity in this or that shape—might have been exercised by other efficient hands; but no such hands being in readiness, and those of the judge being in readiness, it is by them that the powers in question are exerciseable, with more effect than by any other, and by them that it is accordingly fit they should be exercised.

The purposes for which an individual may make application to a judge, as such, are either—1. Ordinary; 2. Extraordinary. The ordinary are,—1. Contentious; 2. Simply informative. The extraordinary are—1. Consultative; 2. Damage preventive; 3. Prospective-evidence-securing.

Purpose—contentious. By the contentious purpose, understand the purpose to institute a suit at law. When from the declaration made by the applicant, it appears that this is his purpose, and when by the judge his prosecution of this purpose is allowed, the suit is declared to be instituted, and the hearing thus going on is declared to be the initiatory hearing in relation to this same suit. The applicant in this case is a pursuer.

Purpose—simply informative. In contemplation of a certain criminal offence or wrong, from which he or some other individual, or the public at large, has suffered damage, or as he supposes was in danger of receiving damage—an applicant who is desirous that pursuit on the ground thereof be made by some one else (for example, by the constituted authorities,) but is not desirous to act for himself as pursuer, desires to be admitted to deliver information thereto relative,—such applicant is an informant.

If, in contemplation of an eventual suit purely non-penal, information through regard to the ends of justice or to the welfare of a party supposed to be interested, is given by an individual who has not himself any special interest in such suit,—this application is that of a non-commissioned proxy.

In English practice, on both these grounds, applications have place every day in certain criminal cases. The cases are mostly those in which the punishment attributed to the offence rises to the height of what is so unintelligibly called felony. But if in a judicial case of this sort, the receipt of information is capable of being of any use, so is it in every other. Yet in no other case is there a judge who will receive it. The sort of judge by whom, in this case, the information is received, is not the judge under whom the suit will receive its termination, but the sort of judge by whom a sort of preliminary, incomplete, and never-conclusive inquiry is carried on; to wit, the justice of the peace.

Purpose—consultative. By the consultative purpose, understand the purpose which is in view, when, being in doubt concerning the interpretation that may eventually be put by the judge on a certain portion of the body of the law, the application has for its object the calling into exercise the judge’s pre-interpretative function. The applicant in this case is a consultant.

The motive for the consultation is—either for his own sake or that of some person in whose welfare he takes an interest, where a certain course in which the law has, as he supposes, a bearing—an anxiety to know in what manner it would by the judge be eventually regarded as bearing.

Of the cases in which a demand for an application for this purpose may have place, examples are as follows:—1. Conveyance: the applicant desirous of making, on certain conditions, conveyance of a certain right, of or relating to a certain mass of property, but not sufficiently assured of the validity or the impunibility of such conveyance. 2. Contract: so in regard to a contract to a certain effect. 3. Prohibited acts: so in regard to a certain act at large, which he is desirous of performing, but is not sufficiently assured of its not being regarded as prohibited, and thence punishable.

Purpose—damage-preventive. According to the source of the damage, this purpose may be—1. Calamity—damage-preventive; 2. Delinquency—damage-preventive; 3. Absenteeship—damage-preventive.

For examples of the modification, of which calamity is susceptible, see Constitutional Code, Chapter XI. § 5, Preventive Service Minister. So likewise, for damages through delinquency. Under calamity include casualty; the difference being only as between greater and less; determinate separative line, there is none.

For the prevention of calamity—prevention of the commencement or the continuance, as the case may be,—application may also be made to a preventive-service functionary, as per Const. Code, or to the local headman.

If for the rendering of the service needed, powers such as belong to the judge, and not to those two other functionaries respectively, are necessary, then is it to the judge alone that application will be to be made; and if made to either of those other functionaries, the applicant will by them be referred to the judge.

By the absenteeship-damage, understand Edition: current; Page: [40] that which is liable to have place for want of proprietary care; the proprietor, known or unknown, distant from the spot, and no other person at hand, with sufficient authority and inclination to prevent the damage. Examples are—

1. Agricultural produce perishing for want of being gathered in.

2. Agricultural live-stock perishing for want of sustenance.

3. Perishable stock in trade perishing for want of appropriate care or sale.

For this purpose, application may also be made to the local headman.

Purpose—prospective-evidence securing. The purpose here is the saving a right, or a means of repressing a wrong from being lost for want of appropriate and judicially receivable evidence. Personal evidence is liable to be lost by death, physical inability, or local transfer of the person from whom it should have come; written and other real evidence by destruction, mislaying, or local transfer. If after commencement of a suit grounded on it, evidence should be made forthcoming, so should it before: reason in both cases the same. By securing it before the suit a suit may, in many cases, be prevented. In non-penal cases, the need is more apt than in penal cases, to have place: but as to the supply, if in any case conducive to the ends of justice, so it is in every other.

The person from whom the evidence is needed, may be the applicant, or any other person. In the first case, all that is demanded is, that the evidence which the applicant is ready to deliver, either be received and recorded: added or substituted, in the other case, is the demand that, as in an already existing suit, an appropriate order be delivered, ordering by whom, when, where, and how, it is to be delivered. The applicant in the first case is a prospective evidence offerer; in the other, a prospective evidence demandant.

In both cases, precautionary arrangements are needed for the prevention of abuse.

Under the English system, application for this purpose is not altogether without example. But by the example, such as it is, so far from being removed, the imputation of improvidence and inaptitude is but established and exposed. Co-extensive with the whole field of legislation and judicature is as above, the need; under the English system, no more than a corner of that same field is supplied.

As to the means of obtainment, so far from being obtainable without a suit, it is not obtainable without a suit of the most expensive kind,—a suit in equity, instituted for that sole purpose, unless already instituted for some other. Field of supply, a portion of the field of equity jurisdiction. What the whole is, belongs to the category of things unknown and unknowable: so likewise what this portion is; on each occasion, the whole and the part are whatever the judge pleases. Within that part, does your case entitle you to the service? Ere you can form the slightest guess, you have an ocean of distinctions to wade through—distinctions without reason and without end. Ask the chancellor, and when you have distributed a few hundreds, or a few thousands of pounds among him and his partners, creatures, and dependants,—at the end of a course of years, he will either tell you, or not tell you; and if he tells you, he will either grant you the supply or refuse it, making proclamation all the while of the profundity of his reflection, the acuteness of his discernment, and the anxiety of his fostering care. When thus granted in words, you will take proceedings for obtaining it in effect, and before they are concluded, be not surprised, if the evidence has perished.

§ 9.: Mode oral—why.

No otherwise than orally delivered, and in the justice-chamber, is any judiciary application receivable.

But by any applicant attending as such, any letter, to whomsoever addressed, whether to himself or to the judge, or to any other person—may be read or presented for reading: the letter being open, and containing matter relevant to his application; and the applicant being responsible, in respect of the contents and the purposes for which it is exhibited.

A person by whom an application is made, and by whom accordingly an appropriate discourse is addressed to the judge, may, for occasional assistance and support, bring with him any person not specially inhibited. But for special reason assigned by the judge, any such assistant or supporter may be ordered and made to withdraw.

Concerning any matter, in relation to which judicial application may be made to a judge, no application can lawfully be made to him elsewhere than in open judicatory. To make any application elsewhere is, in the party making it—in attempt or preparation—an act of corruptingness, and as such, punishable; to receive it without disclosure, is in a like manner, on the part of the judge, an act of corruptedness. As to this, see Constitutional Code, Chapter XII. § 15. Secret Intercourse obviated: and also for the cases in which it may be requisite that the discourse should be secret, and for the mode in which such secresy shall be kept.

§ 10.: Oaths, none—why.

Question: As a security for testimonial veracity, why is not the ceremony called taking an oath, here employed?—Answer: Edition: current; Page: [41] Because it is needless and inefficacious to every good purpose: to evil purposes, in prodigious extent, effective.

It is needless. The responsibility here proposed—responsibility satisfactional, punitional, and upon occasion, dislocational—responsibility to the legal sanction, responsibility to the popular or moral sanction, to the judicial and public-opinion tribunals—is abundantly sufficient.

It is inefficacious. Utterly devoid of efficacy it is proved to be, by universal and continually repeated experience. Under the English system, its invalidity, in respect of moral obligation, is abundantly recognised by the practice of the constituted authorities.

1. In the situation of jurymen in general. In no instance, when any difference of opinion has place, can any verdict be given without a breach of the promise thus pretended to be sanctioned. The verdict being delivered as unanimous, jurors in any number, from one to eleven, must have done that which they have all of them sworn not to do,—uttered a declared opinion contrary to the real one.

Instances are happening, and always have been happening, in which they unanimously concur in declaring as true that which all know to be untrue, and when out of the box scruple not to declare their believing to be untrue. Declaring a quantity of money stolen to be under a certain sum, when in fact what was stolen, if indeed it was stolen, could not have been less than several times that sum; declaring a defendant not guilty, when, according to ample, uncontradicted, and unquestioned evidence, he was guilty: in both cases, for the known and undissembled purpose of saving the defendant from the punishment appointed by law.

Under the eyes of the highest judges is always done what is thus done: judges never disapproving, oftentimes approving, commending, or even recommending. Not a judge is there of those now in office, to whom it is not perfectly known that all this is correctly true. When praise is bestowed by them, humanity is the word by which it is bestowed. Humanity displayed! by which laws are openly violated, and perjury openly committed!

2. In the case of coroners and coroners’ juries,—as often as suicide is declared the result of insanity, when in fact it is the result of calculation—a calculation by which it is determined, that in what remains of life, if preserved, the quantity of pain will outweigh that of pleasure. The cases in which the operation is declared not to be the result of insanity are extremely rare. And then what are they? Those generally in which a man has left neither property nor friends, by whom his property, if any, at his decease could be shared. When the confidant of the Holy Alliance, so truly called holy (for what wickedness is equal to that called holiness?) put an end to his life, what he did was, as everybody knows, deliberate. If suicide is an act of insanity, so is voluntarily entering into a military service—so is choosing what appears the least of any two evils.

3. In the case of deodands imposed by coroners’ inquests. When, by a loaded coach or waggon running over him, a man is killed, declaration must be made by them upon oath what the instrument was by which the casualty was produced. By the whole vehicle, or no part of it, says common sense. No, says jury and directing judge—not by the whole vehicle, but by one wheel and no more: by no other part was any contribution made towards the production of the effect. Here then, is perjury—and to what use? To save the owner of the carriage from the loss of it. For when, by the unruliness of his cattle, the husbandman has lost a servant or a son,—to enrich him for his loss, all-wise judges have in their wisdom concurred in giving it with its contents to the king. Wisdom, with one hand, enforces the law; the same wisdom, with the other hand, defeats it.

Now, as to belief, how stands the matter with these men? Is it that they do not believe that any such person as God is in existence? Is it that, believing such a person to exist, they do not believe that the power they thus take upon them to exercise over him will have its intended effect—they the judges to decree at pleasure, he the sheriff to execute?

They who into the mouths of the elect are so constantly occupied in forcing perjury, are they not suborners of it? But the thing to be proved was, that, whatever be the restraint in any case put upon the motives by which perjury is prompted,—in the production of this restraint no part is ever taken by the ceremony of the oath. And the proof is—what? Where it has not for its accompaniment exposure to punishment in a visible shape, it is set at naught by everybody; but by none more universally than by those to whom, in profession, it is the object of such prostrate reverence.

The all-embracing jury-trial perjury could no otherwise be got rid of, than by giving to the majority, as in other cases, the power of the whole: a measure, the effects of which could not without considerable reflection be anticipated.

But the madness-imputing perjury, and the valuation perjury might be got rid of, at no higher price than the mortification of suffering the property to go or remain with the right owner: and among the whole race of heroes, whom, in the character of ennobled chancellors and judges, the country has for so many ages been adorned with, not one has ever been found hero enough to take upon himself Edition: current; Page: [42] this same mortifying task—by whom the benefit of clearing the country of this perjury has been thought worth the trouble.

When, by the whole elect of the country, the utter inefficacy of the ceremony has been recognised, it may seem little better than a superfluity to speak of the indirect recognition expressed by every House of Commons that ever sat. If it were thought of any importance that it should be employed in inquiries, in the result of which nothing more than the welfare of A and B is at stake,—could it ever have been left unemployed in inquiries, on the result of which so many millions are continually at stake? Could the Commons have quietly left the Lords in the exclusive possession of it? Could the Lords, temporal and spiritual, with common decency have kept to themselves the exclusive possession of it, if, for any such purpose, it had, in the opinion of either, been worth a straw?

So much for the uselessness and inefficaciousness of it. Now as to the mischievousness of it.

The prime article in the list of the evils produced by it, is the mendacity-licence, of which it has been, and continues to be, the instrument. To make men believe that it is by the imaginary eternal, and not by the real and temporal punishment, that the mendacity-restraining effect is produced (the House of Commons case excepted) on no occasion, for the repression of mendacity, is any real punishment employed, but when this ideal source of punishment is tacked on to it. Where no oath, on pretence of securing veracity, is employed, falsehood, though the evil consequences be exactly the same, receives the fullest and most effectual licence.

In the field of common law, with the fullest allowance from their partners in depredation, the judges—the hireling lawyers of all classes, on both sides, riot and disport themselves, while fattening upon lies. Beyond a certain extent, the quantity of these lies is optional; but up to that extent, it has, by those who profit by it, been made compulsory and unavoidable.

§ 11.: Before applicant’s statement—responsibility how secured.

Antecedently to the reception of the applicant’s statement, the judge takes the requisite measures for securing the means of communicating with him after his departure from the judicatory, for whatsover purpose such communication may be requisite.

Needful, on two accounts, is this precautionary measure:—

1. On the account of the applicant himself, for the purpose of giving effect to his application, in the event of its proving well grounded.

2. On the account of the defendant, in the event of its proving ungrounded, with a view to compensation.

3. On the account of the public, in the event of its having been made wantonly, having for its object or effect the exclusion of other applicants from the benefit of justice, by wasteful employment of the judge’s time.

First, then, let it be not a piece of information that the applicant comes to give, but a complaint, or a demand, that he comes to make.

In case of a complaint, he will set himself to inquire what the wrong is, which is the subject of it; and who the person is, or the persons are, who have been concerned, and in what ways, in the doing it: whether known to the applicant or unknown; if known, where the person’s abode is, or what other more effectual means there may be of communicating with him for the purposes of the suit.

For the purpose of ascertaining what the wrong is, the judge will have before him the table of offences. It will be given in all its ramifications in the penal code, to which the proposed code here delineated has reference.

This table, with divers others, is constantly within reach of the judge, and within view of all the other actors in the judicial theatre. If the applicant can read, a look at it may enable him to save the time employed by the judge in the above-mentioned address. Frequently, while waiting in the suitors’ gallery for his turn, a communication with his neighbours in the gallery, if carried on in whispers, at the intervals when the discourse carried on for the purpose of the suit are at a pause, may afford him such instruction as may more or less abridge the labours of the judge.

If the application be a complaint, the definition of the wrong will have informed the judge of the criminative circumstances, the concurrence of which is necessary to the existence of it. As need may occur, he will either mention these to the applicant, or wait to collect them from the applicant’s statement, as it comes forth. And before he determines to call for the appearance of the defendant, he will, in like manner, satisfy himself that, according to the applicant’s showing, no circumstances of justification or of exemption, relative to the species of offence in question, have had place.

If the application be, as above, a demand, the judge will of course have in his mind the respective natures of the several services capable of being demanded, without imputation of wrong, on the part of those at whose charge they are demanded: together with a list of all the several efficient causes of title, with respect to service in all those several shapes. This being confined to another such Edition: current; Page: [43] Table as above, will at the same time afford to the applicant such information as the state of his mind enables him to imbibe.

In the same Table in which are exhibited the several incidents which, with reference to the sort of service in question, have a collative effect, will also be exhibited, in conjunction with them, the several circumstances which, with reference to that same object, may have an ablative effect.

The same care which has been employed in the ascertaining, so far as depends upon the applicant’s showing, the existence of some one article in the list of collative circumstances, will be employed in ascertaining the non-existence of all the several ablative circumstances.

In the course of the inquiry, he will ascertain whether there be any other persons, who, not being present in the character of co-applicants, are united in interest with the applicant.

So also in regard to witnesses.

So likewise as to defendants, and persons regarded as capable of being witnesses, or liable to be called as witnesses, on the defendant’s side.

It will then be for the determination of the judge, to which description of persons application should first be made—whether to the applicant’s partners in interest, to the applicant’s expected witnesses, or to the defendant or defendants. And in such his determination, he will of course be governed by the joint consideration of delay, vexation, and expense; regard being had to the importance of the case on the one hand, and the probable quantity of unavoidable vexation and expense on the other hand.

His next consideration will be, in which of the three possible modes application shall be made to the several descriptions of persons above mentioned—whether in the way of accersition, prehension, or epistolary mandate and interrogation.

§ 12.: Self-notificative information, elicited how.

When the purpose of the application has been established, or, if he sees reason, earlier, the judge proceeds to establish the means of eventual communication with the applicant, according to the nature of the purpose.

Judge to Applicant:—Produce your applicant’s address paper, ready filled up, or make answer to such questions as I shall have to put to you, for the purpose of filling up this which I have in my hand.

If, by the applicant, a paper ready filled up is produced accordingly, the judge, either by the word allowed, with the addition of his signature, signifies his satisfaction with it as it stands, or proceeds, and continues to put appropriate questions, until it receives his allowance, as above.

If no such ready-filled up paper be produced, the judge, by appropriate questions, proceeds to elicit answers, until, under the several heads, such information as to him appears satisfactory has been obtained—the registrar, under the direction of the judge, setting down the answers in words or substance, but not any of the questions—such alone excepted, if any, as he shall have been required to set down, either by the applicant or by the judge.

At this stage, the judge may content himself with the information expressed in such answers as the applicant is content to give. By the purpose of the application, and the nature of the matter stated in pursuance of it, he will be determined whether to elicit information under the several other heads.

In respect of name, all that at this stage need be elicited is that which the applicant is at the time known by, and answers to: so in regard to condition in life, and abode. Under no one of these heads will he be required to declare the real, in contradistinction to the apparent state of the case, unless specially required; nor will he be thereto specially required without special cause.

If the applicant’s purpose be either consultative or evidence-securing, seldom can it happen that on his part any desire of concealing either name, occupation, or habitation, should have place: nor yet, if his purpose be calamity-damage-preventive, or delinquency-damage-preventive, can it naturally have place. Not so if the purpose be either contentious or informative. For in the case of a person by whom, on this or that point, and in particular in the point of name or condition in life, the law has been transgressed, need of the protection of the law for himself, together with adequate motives for furnishing information of acts of transgression committed by others, may not be the less likely to have place.

§ 13.: Applicant’s accessibility secured, how.

In regard to habitation, if so it is that the applicant has not any such settled habitation as determined in and by the Constitutional Code, in the chapter containing the Election Code (viz. Ch. VI.) no entry, without instruction from the judge, will he perhaps be able to dictate.

In this case, either he has a habitation in the territory of some other judicatory, or he has not any in the territory of the state. If he has not any in the territory of the state, either he has not any at all anywhere, or he has a habitation in the territory of some foreign state. Whether in the territory of a foreign state he has or has not any such Edition: current; Page: [44] habitation,—in the territory of the judicatory in which he is making his application, either he has a temporary residence, or he is merely passing through it in the course of a journey, in the condition of a traveller. In which of all these several predicaments the applicant stands, the judge will, by appropriate inquiry, learn, and accordingly cause entry to be made.

For the purpose of maintaining appropriate intercourse with the applicant, it will not be necessary that his habitation (if in the territory of the judicatory, or elsewhere, he has any) should be known; it may be maintained by missives deposited at the habitation of any other person, or at any other place, at which, by his own hands, or those of any other persons, he declares himself sure of receiving it.

In general, only in the case where consequential proceedings are in contemplation to be carried on, will there be any need of establishing any means of intercourse. No such need will have place if the application be simply dismissed, unless, on the ground of delinquency, in some determinate shape, or for security to other persons against damage liable to be produced by the application, it should be deemed necessary to place him in a state of forthcomingness.

The case where the purpose of the application is contentious, and in consequence a suit will naturally have place, being that in which the importance of accessibility is at the maximum, as also the difficulty of securing it,—what belongs to this head will be found in its proper place.

§ 14.: Causes for dismissal.

Causes or grounds for dismissal, may be any one of the following:—

1. To warrant the judge, in rendering the judicial service necessary to the performance of the service demanded, no adequate portion of law indicated by the pursuer, or existing, to the knowledge of the judge. Say for shortness—Law not proved.

2. No fact alleged by which, supposing the existence of it proved, the title or right of the demandant to receive the service demanded would be established. Say for shortness—Fact not proved.

3. The evil, if any, that has place or would have place, supposing the effectual service not rendered, not sufficiently great to outweigh the evil, which, in the shape of vexation and expense, would be produced, by rendering it.

4. The applicant not able of himself to furnish adequate satisfaction, in any shape or shapes, to the proposed defendant.

5. The evil, if any, not sufficiently great to warrant the exacting, at the hands of the demandant, the self-incarcerative security.

6. No person indicated by the demandant, as consenting eventually to subject himself to the burthen of satisfaction to an amount sufficient to outweigh the evil of vexation and expense, as above.

§ 15.: Proceedings, when secret.

If, in the apprehension of the applicant, the case be of the number of those in which, for some specific purpose, secresy, in reference to the other actors on the judicial theatre should for the time be preserved, he hands over to the judge a folded ticket, in which the demand for secresy, together with the ground of it is expressed: whereupon the judge will as he sees best, either continue the hearing in the public chamber, or transfer it immediately to the private chamber, taking with him the applicant and the officiating registrar.

Grounds for such secresy are as follows:—

1. On the part of the proposed defendant, danger of non-forthcomingness, if the application be known to him.

2. So on the part of a desired witness.

3. So, on the part of a proposed defendant,—abstraction of things moveable, to avoid eventual prehension, whether for means of probation, or for means of execution.

4. Necessity or probability of disclosures productive of damage to reputation in respect of sexual intercourse.

5. Necessity or probability of discourse offensive to modesty.

6. Necessity or probability of the revelation of facts, the disclosure of which might be prejudicial to the community in respect of its foreign relations.

So, if, in the course of the conversation, he sees reason, the judge will transfer the hearing from the public to the private chamber, having care to retransfer it to the public chamber, so soon as the need of secresy has no longer place; and so toties quoties.

If, by a party on either side, demand be made for a recapitulatory inquiry, secresy or publicity may again be demanded, by that same or any other party, on either side; thereupon the judge will do as he sees best, taking care lest, intentionally or unintentionally, secresy be broken in the course of the demand.

If, in the case of secresy, on the ground of damage to reputation, the injunction of the judge be broken, the offender will be responsible—satisfactorily and punitionally responsible—as for malice or temerity, as the case may be: and the truth of the imputation, will not be received either in justification or extenuation.

§ 16.: Deceptive fallaciousness—its modes.

Falsity essential, falsity in circumstances, falsity in degree, falsity irrelevant. The distinctions expressed by these appellations will be noted by the judge.

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By falsity essential, understand the case in which, supposing the assertion false, the claim of the applicant falls to the ground. Examples:—

1. Where the subject of demand is money, on the ground of common debt.

2. Subject of demand—delivery of an individual thing, moveable or immoveable, simple or aggregate.

3. Subject of demand—money in satisfaction for a wrong, by the offence of simple corporeal vexation.

4. Subject of demand or of application—informative; publico-private wrong, by theft.

For modes of fallaciousness, other than falsity, see the Book of Fallacies.

Included in such fallaciousness, is irrelevancy—irrelevancy of evidence delivered in relation to the fact properly in question.

Falsity (when not irrelevant) is either completely contradictory to the truth, or incompletely contradictory to the truth.

Falsehood which is incompletely contradictory to the truth, is so either in degree or in circumstance.

By falsity in circumstance, understand the case in which, in respect of some circumstances, the statement appears to be false; but deducting the falsity, enough remains to warrant the judicial call upon the parties.

Example: Where, from the terms of the charge, it appears, whether from self contradiction on the part of the applicant, or from some generally notorious fact, either not known to him or not heeded by him, that the material act stated by him, if indeed it happened, did not happen at the time stated, or at the place stated, or that a person stated as present was not present.

By falsity in degree, understand the case in which, though, in the degree stated by the applicant, the result of the act stated by the applicant did not take place, or could not have taken place, it might, nevertheless, for aught appears, have had place in a degree sufficient to warrant the proposed call upon the pursuer. In this case, the falsity takes the name of exaggeration.

Example 1. In case of debt for goods sold, value as stated, so much; real value, not more than half as much.

2. Amount of the money constituting an equivalent, or satisfaction for damage sustained by goods, from ill-will or negligence, so much; real amount, not more than half as much.

From the amount of the exaggeration, with or without other circumstances, a judgment may be formed, whether it was the result of blameless error, of rash judgment and assertion, of insincerity or mendacity.

By falsity irrelevant, understand the case, where, though the assertion be tainted with falsity, the falsity is such, that, supposing the other parts of the statement true, the ground of the application will not be the less valid. In this case, it may be either blameless, temeracious, insincere, or mendacious. However completely soever irrelevant, it may still be not the less fit to be noted, as well for the purpose of the principal suit, as affecting the trustworthiness of the application, as opposed to any statements by a defendant, as for the purpose of constituting a ground for punishment.

The effect is of a particular kind, where the subject-matter of the deception, or the attempt, being a thing or a person, the erroneous opinion caused, or endeavoured to be caused, is identity with reference to a certain thing or person, wherein diversity is what really has place. As where a thing being the subject-matter, an appearance is put upon it by the deceiver, with the intent, that in relation to it an opinion should be formed, that the cause of its wearing that appearance was and is the agency, not of him the deceiver, or would-be deceiver, but either of some other person, or of unassisted nature. When the subject-matter is an assemblage of the visible signs of discourse, the attempt thus to deceive—the preparation made for deception—by a person (whose writing the discourse does contain,) with the intent that it shall pass as the work of some person other than him the deceiver whose work it really is,—is styled forgery—to wit, of written evidence: when the signs are of any other nature, the forbidden act may by analogy be still termed forgery, but in this case, forgery of real evidence.

In the Greek language, without difficulty, and in the English, if a word imported from the Greek language could be endured, it might be termed prometamorphosis, by analogy to metamorphosis.

False in degree. This may be converted into truth, by simple addition or subtraction.

False in circumstance. Circumstances are, with relation to the principal part of the matter of fact, either essential or unessential: essential in place and time—essential in some place and some time—because no matter of fact can have existed, without existing in some place, and in some time;—but it may be, that neither the individual place, nor the individual time alleged, may have been essential and necessary to the material effect of the principal fact in question.

Histories of trials, if well analyzed in this view, will be of great use in furnishing the mind with ideas of cases applicable on each individual occasion. But general rules, exercising an absolute dominion over decision, should not be made out of them.

Susannah’s elders were deemed false witnesses, because, according to what one of Edition: current; Page: [46] them said, the act was committed under a tree of one sort,—according to the other, it was committed under a tree of another sort. But what if the trees were so placed, that it was committed under both of them?—or, if the animated act, being so much more interesting than the inanimate vegetable, one or both of them had, for want of the necessary appropriate attention, been mistaken as to the tree?

§ 17.: Justice-obstructing application obviated.

On every occasion on which it appears to the judge that the application is groundless and frivolous, he will make declaration to that effect. If, in his opinion, the cause of it be want of due consideration for the value of the time of the judge and the judicatory to the public service, but without consciousness of its groundlessness, he will declare it culpable; and, for the purpose of determent in future, he will impose a small mulct. If, in his opinion, the cause of it be a desire to pre-occupy and employ in waste the time of the judicatory, for the express purpose of producing delay in reference to other suits in general, or a certain suit or set of suits in particular, (in which case, it cannot but be accompanied with evil consciousness,) he will make declaration to that effect, and declare the application groundless and criminal, and impose upon the applicant a much heavier mulct.

The produce of the mulct will in both cases be allotted to the helpless litigants’ fund.

In ordinary practice, no person is admitted to apply for justice, without payment of money under the name of fee. The consequence is, a denial of justice to all those who are unable to pay the fee; and in the case of those who can and do pay it, but can ill afford it, adding hardship to injury—injury by the hand of government, to injury by the hand of the individual wrong-doer. By this means, the government offers encouragement to wrong; in the way here proposed, a pecuniary exaction will act as a discouragement to wrong.

If in consequence of divers instances of groundless application, one with another, it shall have appeared to the judge, that among the applicants or any of them, concert for the production of delay as above—vexation to the judge and judicatory—have place, he will declare as much, and give to the aggregate of such applications the appellation of a conspiracy—a conspiracy for the obstruction of justice; and in proportion to their respective pecuniary circumstances, give increase to the amount of the mulct respectively imposed upon them. Thus there will be so many distinguishable offences against justice—modifications of the offence denominated obstruction of justice—1. Obstruction culpable, through rashness; 2. Obstruction criminal, accompanied with evil consciousness; and, 3. Obstruction criminal, accompanied with evil consciousness and conspiracy.

To the government advocate it will belong to be upon the watch for every such instance of obstruction to justice, and to make demand accordingly for the infliction of the mulct.

So likewise to the eleemosynary advocate, in default of, or at the request, or with the consent of, the government advocate, and with the consent of the judge.

Were it not for this means of repression, nothing would be easier than for a knot of men,—to whose particular and sinister interest the system of natural procedure, on this or that application expected to be made, were detrimental,—to stop the course of justice altogether, and throw everything into confusion: in consequence of which, the only system of procedure conducive to justice, would wear the appearance of being destructive of it.

At the expense of a reward, exceeding, though it were by no more than a small amount, the daily wages of the lowest paid labourer, thousands might be procured in such sort as to occupy for years with groundless applications, the whole quantity of judicial aptitude that could be brought into operation.

§ 18.: Application by a party to a quarrel; or say, Quarrels, how terminated.

An occurrence naturally not unfrequent is this. Between an applicant and a party complained of, a series of supposed wrongs on both sides have had place. In a case of this sort, if, on the occasion of the application made on one side, the judicial service due be rendered to the applicant, no notice being at the same time taken of any wrong done by him to the proposed defendant, justice would be rendered in appearance, in reality not.

As to the multitude of the individual instances of wrong in its several shapes, capable of being done by one individual to another, there is no determinable limit; still less can there be to that of the instances of wrong on both sides. Of no one alleged wrong can the judge refuse to take cognizance, any more than of any other. Whatever in any particular instance may be the number, if on the day of the first application made by the party, cognizance be taken of the whole series, judgment may be pronounced on every one of them on that same day; whereas, if separate days be appointed for each, no limit can be assigned to the quantity of delay which may have place—delay to the suitor, with correspondent needless expenditure of the time of the several actors on the judicial theatre.

This considered, when, in consequence of application made—the applicant is received Edition: current; Page: [47] as pursuer, and the party complained of, as proposed defendant, such proposed defendant appearing—if [Editor: illegible word] be that, by such defendant, wrong in any determinate shape is by him alleged to have been done to him by the pursuer,—the judge, far from inhibiting such counter-complaint, will rather give encouragement to the exhibition of complaints on both sides; to the end that, in so far as practicable, termination may be put to all feeling of ill-will on both sides, to all resentment for wrong sustained, to all apprehension of wrong about to be sustained on either side—in a word, that perfect reconciliation be effected.

In this case, the damage, in whatever shape, from every wrong on each side, will operate as a set-off to every other; an account, as complete as may be, will be taken of what is due on each side; and a balance struck, and payment, in whatsoever may be the appropriate shape or shapes, made accordingly. In the case of an ordinary account of a commercial nature, this is matter of universal practice; in the case here supposed, it may with equal facility have place: a sum of money, due on the score of satisfaction for corporeal vexation, may with as much propriety and facility be set down in account, as money due on the score of ordinary debt; and for wrongs on either side or on both sides, satisfaction in a shape other than pecuniary may be remitted on one side, in consideration of satisfaction remitted on the other.

But though it should happen, that for mutual wrongs in any number, nothing in the name of satisfaction in any shape be found due on either side to either individual,—wrong to no inconsiderable amount may in this way have been done by one or both parties to the public—wrong, that is to say, by the consumption made of the judicial time as above.

Upon the whole, then, two distinguishable courses may, on any such occasion, require to be taken—two distinguishable functions require to be exercised by the judge; that is to say—1st, the conciliative; 2d, the punitive.

To the conciliative he will, to the best of his endeavour, give exercise in every case; to the punitive, at the charge of either or both, if, and in so far as, the circumstances of the individual case appear to him to require.

The increased faculty of extinguishing ill-will, and at the same time rendering complete justice, as between any two or any greater number of persons regarding themselves as wronged, is among the advantages possessed by the system of natural procedure, in comparison of the system of technical procedure—by the proposed system, in comparison of the existing system.

Under the existing system, the impossibility of any such comprehensive and desirable arrangement is entire. Two causes, not to speak of others, concur in the production of it. A judicial meeting of the parties themselves there is none; and the expense of a single suit to the comparatively few who possess the possibility of defraying it, is so enormous as to destroy either the will or the power—or the will and power necessary to the engaging in so much as a single additional one.

By so simple an arrangement as that of the judicial meeting of the parties, in Denmark, under the judicatories called Reconciliation Courts, from two-thirds to three-fourths were struck out of the number of the suits carried before the judicatories acting under the technical system. This, too, under a host of disadvantages, of one of which the bare mention may seem to render unnecessary all mention of the rest:—no power had this judicatory to give execution and effect to its own decisions.

If, under such disadvantages, success was thus extensive, what may it not be expected to be, under a judiciary and procedure system possessing, in a degree so high above everything as yet exemplified, the power as well as the inducement to discover and ascertain what, on each occasion, ought to be done, and when ascertained, the power of causing it to be done?

To receive in no case a counter-demand as a set-off to a demand, would, on the part of the common-law courts, have been an injustice not to be endurable. What remained was to render the field of the application as limited as possible—as limited, and thence as indeterminate. For thereupon came the point, whether, in case of the demand in question, a counter-demand to the effect in question should be allowed. But unless it was on account of the delay with which the elicitation of the evidence in support of the counter demand would be attended,—if, in any one case a counter-demand is allowed, why not in every other?

§ 19.: Parties’ forthcomingness.

The judge will have the faculty of exacting at the charge of a person adequate sureties, against whom it is in contemplation to prefer a demand (and who, it is apprehended, is on the eve of departure from the country in question, to some spot not accessible, immediately or unimmediately,) to the powers of the judicatory, to the purpose of effectual justiciability in relation to such demand.

In English law, example of a suit having for its object the securing the forthcomingness of a person for the purpose of justiciability,—the writ, ne exeat regno.

Here the applicability of the remedy falls extremely short of the demand, in respect of its extent over the field of law and judicature; neither is it afforded to any person Edition: current; Page: [48] who is not at once able and willing to buy it of the judge and his partners in trade, at the expense of the most expensive sort of suit—a suit in equity.

§ 20.: English Practice.

Against that system of depredation and oppression, of which law, substantive and adjective—more immediately substantive—is the instrument, and Judge and Co. the self-paid and richly-paid authors, the security that will be seen to be given by those two so intimately conjoined arrangements, viz. the appearance of the parties, and their responsibility in case of mendacity, will upon a detached view be seen to be such, as no person who had not applied himself to the subject with close attention for this particular purpose, could, in the nature of the case, imagine to himself.

Of this same most flagitious system, the arrangements correspondent and apposite to the tutelary one, form the two main points.

By keeping the door of the justice-chamber inexorably shut against parties on both sides, and particularly against those on the pursuer’s side, the partnership forced under this one head, every person who, on either side of the suit, felt himself compelled to take this melancholy chance for that essentially adequate relief, which was to be sold under the name of justice.

For shortness, call this principle, the deafadder principle, or the judicial-deafness principle.

By confining to extraneous witnesses such security as they find it necessary to afford against judicial falsehood, the giving full swing to it to persons in the character of suitors. They thereby let into their net the whole tribe of insincere litigants on both sides of the case: all those who, for the purpose of depredation or oppression in any other shape, could, by the facility thus afforded, be content to purchase their official and most efficient instrumentality and support: to give effect to demands, known to be groundless, and by delay for an indefinite length of time, obtain a proportionable chance for ultimately defeating demands known to be well-grounded.

Here, then, was an immense addition to the greatest number of customers they could have hoped for under any system which had for its object the ends of justice. For addition, say rather multiplication,—multiplication, and by a high power.

At one sweep, it gathered into the net, amongst others, the whole tribe of dishonest debtors; that is to say, of such debtors as by this encouragement they could succeed in rendering dishonest.

Call this principle the mendacity-licence principle, or for shortness, the mendacity-licence. Further on it will be seen improved into a perjury-licence, that encouragement to vice in this all-comprehensively-mischievous form might not be wanting to any class of human beings.

Calling it simply a licence, is not doing justice to it—is not yet painting it in its genuine colours; for when depredation is the object of licence, licence contains in itself the essence of reward.

This was not yet enough: it was almost enough for those who acted in the name of law; it was not enough for those who, as if to give a zest to profligacy, acted in, and prostituted the name of equity. It was almost enough for law; it was not enough for equity.

Not content with encouraging falsehood, they forced men into it. As to the matter of falsehood, common lawyers just contented themselves with vague quantities: false assertions on both sides—falsehood in the initiatory demand—falsehood in the initiatory defence—false declaration—and false plea: all this, however, is in a comparatively small number of words, with comparative moderateness of depredator’s profit.

In the race of profligacy, not inconsiderable is the advance thus made by Common Law; but in this part of the case, as in so many others, she was left behind by Equity.

If a man owe you money, the Lord Chancellor Eldon will do, what the Lord Chief-justice Abbott will not do. He will let you ask the man whether he does not owe you the money, and whether, of the facts by which the debt was produced, the statement you make is not true. Think not, however, that an indulgence so extraordinary is to be obtained without cost. Before you can be admitted to set foot, and that only by proxy, in the temple of Equity, your honour at any rate, whatever part of it consists in abstinence from lying—deliberate and elaborate lying—must be left at the threshold. If the statement of a matter of fact, concerning which you are in ignorance, be necessary to the establishment of your right, being permissioned by equity to call for information at your debtor’s side,—how would you go about it? Would you ask him at once how the matter stands? No such thing will you do, if, on this occasion, your lawyers know their business; for in this way you might ask long enough, before anybody would give you an answer. No: you must come out with a string of lies first, and no otherwise than on that condition will your debtor receive orders to furnish the information and acknowledgment which you have need of at his hands. The very thing which you do not know, and which to the Master of Equity it is known that you do not know, by his instrument, the Master in Chancery, he forces you to declare solemnly that you do know, stating the particulars of it in detail; your lawyer, the attorney Edition: current; Page: [49] called a solicitor, and the barrister draughtsman, consulting their imagination, and weaving a tissue of falsehood for the purpose. This falsehood has its equity name, and is called the charge; and the maxim is—every interrogatory must have for its support a correspondent charge.

Here, then, are so many more words to be paid for—paid for at so much a dozen,—paid for, over and over again, to so many different persons—judges, solicitor, draughtsman, Master in Chancery, Master in Chancery’s creatures,—all of them having, in one way or other, a finger in the pie.

In a more refined, but not the less substantial shape, another mass of profit is yet behind. Of the profit thus reaped from falsehood, the continuance could not but be, in a more or less considerable degree, dependent on the degree of acquiescence on the part of those upon whom, and at whose expense, it is practised. But no sooner were it seen in its true colours, than those at whose expense it was practised, would of course, as far as the law millstone about their neck would admit of their doing, rise up and protest, with one voice, against the vice thus crammed into their mouths, while their pockets were being thus drained.

At the bottom of the system has accordingly always been, so to order matters as that right and wrong, morality and immorality, should be regarded as depending, not upon the effects produced by them respectively on human happiness, but on the oracles from time to time delivered, as occasion called—delivered by these arbiters of their destiny, by these masters of their fate: accordingly, in particular, that falsehood, when forbidden by them, or without being so much as forbidden, punished by them, was wrong; but that the same, or any other falsehood, as often as it was left by them unpunished, became a matter of indifference, and as often as commanded by them—not only right, but obligatory.

With how deplorable a degree of success this has been crowned, the whole community feels but too much unquestionably. In how complete a state of confusion has the most intelligent of nations, for so many centuries, remained!—insensible to the most marked boundary line that distinguishes vice from virtue: swallowing lies upon lies, and bowing down, with unabatable reverence, before the men who force them into their mouths!—absurdity and nonsense, both in the superlative degree, worshipped under the name of learning—vice, in its most sordid form, under the name of virtue!

All this while, of the object of this worship, what there has been in reality is—opulence in league with power. Nor yet has learning been altogether wanting to it.—Learning? but of what sort? Of that which consists in an acquaintance, more or less familiar, with an enormous and ever-swelling mass of absurdity and nonsense. Could but the head be emptied at once of the whole mass, it would be but so much nearer to the being furnished with real and useful knowledge—with that sort of matter, in the denomination of which the word learning can without profanation be applied.

By the opening of the door to all applicants, whose wish it is to obtain, on their own account, the benefit of judicial service, two opposite but correspondent and concurring effects are produced, according to the character of the applicant. On the one hand, to all sincere applicants, an advantage—an advantage, in respect of its extent altogether unprecedented, is secured: on the other hand, to persons at large, against the machinations of insincere litigants, a security alike unprecedented is afforded. On no occasion can any person expose another, in the situation of defendant, to the vexation and danger incident to this situation, without affording to his adversary that security against injustice, which is afforded by the applicant’s thus placing himself in a situation of effectual responsibility, satisfactional and punitional, in the event of the application being regarded as not sufficiently grounded.


§ 1.: Proxies, when and who.

Exceptions excepted, no suit can be commenced but by application of the individual who demands to be received as pursuer.

The reasons are given in another place, where it is shown what the services are which are rendered to justice, by the attendance paid, and examination taken, of the proposed pursuer; and that without such his attendance, cannot be rendered with anything near to equal benefit.

Exceptions are the following:—

1. Temporary infirmity of body. Where the health of the party will not admit of his quitting his own residence, and the commencement of the suit cannot, without danger or non-execution on the part of the law, await his recovery.

2. Party’s infirmity, by temporary or permanent mental derangement.

3. Party’s infirmity, by caducity.

4. Party’s infirmity, by nonage.

5. The party being temporarily absent, and the efficient cause of the demand has taken place since his departure: nor is his residence in the territory of any judicatory in which the suit could be commenced with equal advantage to justice.

In cases 1, 2, 3, or 4: Although, in any Edition: current; Page: [50] one of the above cases, the judge may receive a proxy, instead of a party, and, upon the evidence exhibited by the proxy, order the reception of the principal, in the capacity of the pursuer, the judge may, at the first hearing as above, or at any time thereafter, require, by appropriate mandate, the attendance of the party, either with or without the co-attendance of the proxy—to wit, by an attendance-requiring mandate, directed to the proxy and the party jointly.

In case 5, he will, if he sees reason, direct an appropriate suit-transmitting mandate, and have the option following:—

1. To dismiss the suit simply.

2. To retain it, advising, at the same time, the pursuer to carry his demand before another judicatory, that, to wit, within the territory of which the residence of the proposed defendant happens to be at the time.

3. Constitute the applicant the party’s proxy, and, from the evidence adduced by him, in conjunction with the demand paper, commence the examination of co-pursuer’s or defendant’s evidence-holders, in the epistolary mode.

§ 2.: Litigational proxies.

A litigational proxy is a person who, on the occasion of a suit, acts in the service of a party litigant, on either side of the suit; the party in whose service he acts not being present.

Such proxy is either a professional proxy, or a non-professional proxy: professional, serving for pay.

As a professional proxy, no person can be admitted to serve, who has not been duly located in the situation of professional lawyer, or, for shortness, say lawyer: as per Constitutional Code.

So likewise in cases inculpative or not, but not criminative.

So likewise in a suit criminative and purely public, to the purpose of subjecting the principal to a punishment no other than pecuniary.

So likewise in a suit criminative and publico-private, to the purpose of subjecting the principal to the burthen of compensation, with or without pecuniary punishment; but not to punishment other than pecuniary.

So likewise as to consent given by the proxy, on behalf of the principal, to any operation on the part of the judge, by him proposed.

So likewise in a simply requisitive case.

So likewise in a suit criminative and publico-private. But in this case, the government advocate, or public pursuer, will have care, lest by this means, of the suffering proper to be inflicted on the score of punishment, undue diminution have place: and may propose to the judge to make addition, in a pecuniary shape, to the punishment, in lieu of any pecuniary compensation, the remission of which may have been produced by such admission or consent on the part of the proxy.

A party defendant may apply for relief against an admission alleged by him to have been unwarrantably made, to his prejudice, by his proxy: to wit, for the purpose of being put (in so far as without preponderant inconvenience may be) in the same state as that in which he would have been, if no such admission had been made.

But then, except in case of valid excuse for non-attendance, he cannot do so otherwise than by repairing himself to the judicatory, and submitting himself to confrontation with the proxy, at the justice-chamber, for the purpose of their being interrogated by each other, and by the judge.

It will be among the cares of the judge, that from such disavowal on the part of the principal, damage in any shape shall not be made to fall upon a party on the opposite side of the suit; and that whatever expense may have been produced by it shall fall upon the principal, the proxy, or both, rather than upon any party on the other side; and in this view, he will be on his guard against collusion between them, for the purpose of addition intended to be made to delay, expense, or vexation, at the charge of the other side.

In a simply requisitive case and suit, the principal is provisionally bound by the admission of a professional proxy.

So by the admission of a non-professional proxy.

In either case, the judge, in case of apprehension on his part, lest by an admission made by the proxy, the interest of justice, as well as that of the principal, has been disserved, will state such apprehension, with liberty to the proxy to retract or modify such admissions, if he can consistently do so without prejudice to truth.

So, if he sees necessary, the judge, for reason assigned, may suspend any such operation as, on the supposition of the propriety of the admission, he would have performed, until information of the objection made to the admission has been transmitted to the principal, and response has been received from him in consequence, or time sufficient for the reception of such response has elapsed.

To hired lawyers, in the character of litigational proxies, shall admittance be given or denied? Given, of necessity, and beyond doubt. Preferable on several accounts, under certain conditions, are gratuitous proxies.—But among would-be pursuers, many there will always be, to whom the finding any person, at the same time able and willing to give commencement and conclusion to a species of service capable of becoming so toilsome, would be utterly impossible. If, then, Edition: current; Page: [51] proxies in adequate numbers could not be found, who, for such remuneration as they found obtainable, were willing to furnish, for the purpose in question, the sort of service in question—the whole class of persons above mentioned would be exposed to wrong in all shapes at the hands of every evil doer by whom, according to his calculation, the profit extracted from the wrong would afford him a sufficient remuneration for his trouble. Thereupon comes another question: A man by whom the service in question has on this or that occasion been rendered, upon a gratuitous footing, to this or that individual,—shall it be allowed to him to receive payment for it in the case of this or that other? Here the proper answer presents itself on the negative side.

In the Constitutional Code, the case of the professional class of lawyers is brought to view, and provision made for securing on their part, by a course of observation and practice, what seemed requisite of appropriate aptitude. If, without distinction, others, by whom no such security had been afforded, are permitted to enter into competition with them, the adequate inducement for engaging in a course of labours of such duration would not be afforded, and the burthen of affording this security would not find any person disposed to take it upon his shoulders.

It may indeed be said, that merit could find its way in the case of this, as well as other arts; the degree of proficiency on the part of each man would be evidenced by his conduct. True: to some it would; but to others it would not. Those to whom it would be evidenced would, with little addition, be the better educated inhabitants of the town, of that town alone, in which the judicatory had its seat. The rest of the inhabitants would, on each occasion, be at a loss to whom to intrust their respective interests, and would be liable to be taken possession of, as it were, by the boldest and most artful intruder.

The function of law practitioner, or say litigant’s proxy, is but one of two functions—nor that the most important one for which the services capable of being rendered by the class of men in question are needed. Besides the case in which it is only to individuals that the service is rendered, there are two official situations in which the need applies: 1. That of judiciary visitors for the three first of the five probative years; 2. That same situation, alternating with that of advocate of the helpless. True it is, that in the first of these characters they will not serve any otherwise than on occasions when waiting in company with their respective clients to be heard: equally true it is, that but for the preference expected to be obtained, after this long term of study and probation, scarce any one of them would be found to subject himself to it.

By what means shall security be given to the exclusive faculty thus proposed to be established? To an extent sufficient for every beneficial purpose, in this there will be no great difficulty. To exclude altogether from the advantage of receiving, in this or that individual shape, a benefit in return for the benefit conferred by this laborious and important service, will neither be possible nor desirable.

Whatsoever had been the value of the contribution received by the contraband trader in judicial service, let him be subjected to the obligation of refunding it, with a certain proportionable addition to it, in the way of penalty. Individually and collectively, the body of professionals would find inducement adequate to the purpose of securing, in the case of each individual, a pursuer able and willing to carry the suit on to its termination. As to evidence, that part which regarded the proof of the services rendered by the interloper would be matter of notoriety: remains the contraventional fact—the act of receiving retribution in some shape or other for the service performed. But under a rational system, in regard to evidence on this score, never would there be any difficulty: without the least reserve (under the universally-applying security against mendacity,) questions would be put to all persons cognizant. Under the check afforded by this security, small does the probability seem of infringements of this prohibitive arrangement, in any such degree of frequency as to frustrate the intended exclusive privilege.

Only in case of a regular and permanent contraband practice, carried on by interlopers in numbers, could the damage done to the licentiates taken in the aggregate be considerable; and under the influence of the here-proposed remedy, any such permanent contraband trade, carried on by any individual, for any considerable length of time, presents itself as impossible.

§ 3.: Of damage-preventive application, by uncommissioned proxies.

An application may be made either with or without authority from the person or persons on whose behalf it is made.

If it be without authority, a self-constituted proxy is the appellation by which, in this case, the applicant is denominated.

A self-constituted benevolent proxy, is the appellation by which he will be designated, if, in the opinion of the judge, the desire of serving the interest of the party, on whose behalf the application is made, constituted the whole or the main part of the inducement by which the application was produced.

§ 4.: Unauthorized proxies receivable, how.

A self-constituted benevolent representative Edition: current; Page: [52] of an unrepresented absentee. By an unrepresented absentee, on this occasion, understand a person by whom an article or mass of his property has been left, or is supposed to have been left, unoccupied: no assignable person being known, or supposed, to have been left in charge of it.

In relation to this case, provision in considerable detail is made in Bonaparte’s Civil Code. In the English system, no notice whatever is anywhere taken of it.

Whatsoever judicial service a person has a right to demand and obtain for himself, or on commission from another, for that other, he has a right to demand and obtain for another, without commission, from that other, on his finding adequate security for appropriate responsibility, for compensation in case of damage.

The parties to whom damage from such benevolent intervention is liable to accrue are—1. The principal, on whose behalf the application is made; 2. Any person, in the character, of defendant, at whose charge the powers, the exercise of which is demanded at the hands of the judge, will have to be exercised.

In the account of this eventual damage will be included any costs with which any proceeding had in consequence, may happen to be attended.

In so far as ascertained, the amount of every such cost may require to be advanced by the applicant, instead of its being imposed on any other person, to whom, in consequence of the application, communication may require to be made; especially if judiciary attendance or transmission of documents to the judicatory may be requisite.

Whatsoever may have been the inducement, it will be among the cares of the judge so to order matters, that to no person, other than the applicant, damages in any shape may ensue.

Accordingly, exceptions excepted, the judge will not subject any person, other than such self-constituted proxy, to any expense of which the application may be productive.

Exception is, when, from the result of the application, benefit in any shape ensues to the party in whose behalf the application is made; while, at the same time, either no benefit at all would have accrued to him, or no benefit so great as that which has accrued to him by this means. In this case, reward in consideration of, and in proportion to the net value of the benefit so reaped from his service, may, in case of a suit instituted for that purpose, be decreed to the applicant by the judge.


§ 1.: Subject-matters of communication.

Communication.—By this name is designated an operation which bears reference and is a necessary concomitant to, all those others, and of which, on that account, no mention could have been made, till those others had been brought to view.

They, being so many distinguishable ends of procedure, it is, with reference to every one of them, a necessary means: communication, for the purpose of application and judication; communication for the purpose of probation.

Not to secure it, from the very outset of the suit to the very last act in it, on every occasion (and as between whatsoever persons and things, where the existence of it is necessary to the attainment of the ends of justice,) is a flagrant oversight. But should it be found, that for this omission, gold in torrents has at all times flowed into the coffers of those in whose hands the power was of preventing the deficiency, is is it to any such cause as oversight that, consistently with the most ordinary degree of discernment, it can be ascribed?

In Bonaparte’s code, no such flagrant omission has place. Not that the means provided are, in so perfect a degree as they might have been, adequate to the end; but towards the attainment of it, no inconsiderable advance has there been made.

Among the earliest and most anxious cares of the system to which expression is given in this code, and those connected with it, is to secure, from first to last, the existence and efficacy of an instrument so indispensable in the work of justice.

Upon the degree of civilization, and improvement in various other respects, but more particularly in the state of the physical channels of communication (the roads by land and water,) must communication for judicial purposes, in respect of promptitude, celerity, and cheapness, of course be in a great measure dependent.

Persons and Things.—On this occasion, as on most others that present themselves on the field of government,—in these two appellations may be seen the results of a division, of which the nature of the case renders it necessary to make use.

Of this division, both members require a further division, into common and peculiar.

As for other purposes, in all imaginable variety—domestic, and other social and sympathetic intercourse—trade, wholesale and retail, and the business of the several departments and sub-departments in the official Edition: current; Page: [53] establishment, so for this in particular,—the common, one great aggregate instrument of communication is the letter-post establishment, and the aggregate of the several stocks provided for the conveyance of large and heavy burthens,—including the roads, solid and fluid, over and through which the several masses of matter are conveyed, and the beasts, or other instruments of conveyance, by which the requisite motion and direction are produced.

By peculiar, understand those instruments of communication, the use of which is appropriated exclusively to the service of the department here in question.

§ 2.: Modes of communication.

Communication is from persons only; from persons, it may be, either with persons or with things, or with both. From persons to persons, it may be either unilateral or reciprocal. Reciprocal it is, when in consequence of a communication made to a person, another communication is made from that person, to him from whom the first communication came. From a person to a person, communication is made in two different modes: the oral (the only original mode,) and the written. When it is the oral that is employed, the intercommunicants are necessarily, in that respect at least, present to each other: when it is the written, it happens sometimes that they are present, and that, notwithstanding such presence, there may be some special reason for their communicating with each other in that mode; but, in the ordinary state of things, they are at a distance. In this case, if it is in the written mode that the communication is effected, it is termed the epistolary mode: if the mode be not epistolary, the intervention of a third person is necessary; and, in this case, two communications instead of one have place—namely, one from the primary communicator to the third person, who in this case becomes an instrument of communication between them—another from the instrument of communication to the person to whom the communication is made.

Of all modes of communication, the simplest is that which is made in the oral mode, without the intervention of any such third person as above: in that most simple form, communication is cotemporaneous and coincident at the same time with the abovementioned mutually and necessarily cotemporaneous and coincident operations; that is to say, application, judication, and probation. In this case, the occasions for communication lie, as hath been seen, within a narrow compass.

Not so when the applicant, or the person who at his instance has been constituted the proposed defendant, or any non-party, or say, non-litigant evidence-holder, is called in. Now then comes the necessity for some instrument of communication, an instrument which, unless in some rare case, will be of the personal kind—in a word, some person to whom, in the character of a messenger, it belongs to convey the subject-matter of communication, most commonly of that real class, of which written discourse is composed, from the judge to the person to whom the communication is made.

This person being, by the supposition, at a distance from the official place of residence of the judge, now comes the demand for diversification and corresponding complication.

In a country in any tolerable degree civilized, there will be two modes of communication between persons at a distance: the one, which may be styled generally ordinary, to wit, the letter-post, or other public and universally employable receptacle, employed as an instrument of conveyance; the other special, or say particular, to wit, some messenger specially employed for the purpose, making or not making use of some real instrument or instruments of conveyance.

This distinction, though in itself purely theoretical, is pregnant with practical applications, not less obvious than important. Expensive to a degree more or less known by everybody, is even the least expensive submode of the special mode of communication: comparatively unexpensive and economical is the general, or say ordinary modes of conveyance, especially as applied to instruments of communication in the epistolary form.

By appropriate arrangements, the general mode of conveyance, but more particularly the letter-post, might be made to perform (and with not less certainty, and with superior dispatch,) the service by which, in present practice, some special mode of conveyance is commonly, if not universally employed.—But these details belong to a more particular head.

Communication, as we have seen, may be from person to person, or to things, or to persons and things, at the same time.

When it is from person to person, and back again from the second to the first, the two persons may be styled intercommunicants.

§ 3.: Means of communication.

The first point to be determined is at what place the thing in question shall be done: whether in the judicatory, or elsewhere; and in particular at the abode of the addressee, whether party-litigant or extraneous evidence holder. In general, these two cases constitute the only alternative. The reason is, that in general, upon the circumstances it will depend, whether the communication shall Edition: current; Page: [54] be oral or epistolary: oral, if in the justice-chamber; epistolary, if at the abode, permanent or temporary, of the addressee.

But in a particular case, on a particular occasion, need may be, that though made in the presence of the judge, the response will not be to be made in the justice-chamber.

The first source of division is the consideration of the place at which the operation is required to be performed: the next is the purpose for which in that same place it is to be performed.

In the third case, an extraordinary place concurs with an extraordinary purpose: place, not the justice-chamber, but some other, in which, for the special purpose of that individual suit, and the individual operation, it requires to be performed.

The material circumstance is the species of the instrument of discourse,—whether oral, or otherwise evanescent—or scriptitive, or in any other shape permanent: this not by reason of the permanence of the instrument—for, for giving expression to the discourse, an instrument of the same degree of permanence might be employed in the judicatory—but by reason of the distance: hence it is by distance, and nothing else, that the necessity of giving employment to this instrument of discourse, to the exclusion of the other, is created.

On the part of a justiciable, whether party pursuer, party defendant, or evidence-holder, in answer to the mandate issued by the judge, the mode of compliance would be either by attendance or responsion: if by attendance, either at the in-door fixed judicatory, or at the out-door occasional and migratory judicatory.

As to the character, or say capacity, in which the modes of compliance are thus exemplified, it might be either that of party pursuer, party defendant, or evidence-holder, or some individual at large, incidentally and casually addressed, for the purpose of contributing, by means of some incidental services which it fell in his way to be able to render, to the giving execution and effect to the law on which the suit was grounded.

Here, then, comes the need for so many corresponding mandates:—

1. Accersitive, or say hither-calling mandate. This when the place at which the service is performed is the judicatory: the service itself is the ordinary in-door service.

2. Missive, or say thither-sending mandate. This when the place at which the service is performed is an incidental and migratory judicatory: the service itself is out-door service.

Only by personal attendance at or in the judicatory, can commencement as above be given to a suit: in which case, the need of missive mandate, on the part of the judge, may be apt to appear superseded. But the individual who, at the first application, is constituted a pursuer, might be either the applicant himself, or any one of two other descriptions of persons: to wit, where the applicant is an assistant, professional or gratuitous, such proxy, or say deputy, being for one or other of the best of reasons admitted instead of the principal; or a ward-constituted pursuer, in consequence of the application made by his guardian; or in a word, who is himself a pursuer, so it be at any period of the suit, after the first; the ward being constituted pursuer in his own right, and for his own benefit—the guardian in the right and for the benefit of the ward, or other trust.

On the part of the addressee, in whatever capacity addressed,—party pursuer, party defendant, or supposed evidence holder, or individual at large,—rendering response in some shape, will be an operation indispensable in every case. By the response, if pertinent to the matter in hand, either compliance with the obligation imposed by the mandate will be completely manifested, or (though for some reason assigned, not at the time performed) promised for some other time, or declaredly declined; if declined, then the object of the response will be, to exonerate the individual from the burthen of eventual suffering, either by satisfaction afforded, or by punishment suffered, or both.

§ 4.: Accessibility-securing.

With regard to the means of intercourse, thus much is good and true in general,—that on each individual occasion they must be settled with, and adjusted to, the circumstances of the individual with whom the intercourse is to be secured.

As to those individual means, the general nature and character of them will be liable to vary according to the condition in respect of civilization of the country in question: they will depend partly upon the situation of the individuals to be communicated with, partly upon the nature of the means of communication which the state of the country affords.

As to the condition of the individual, in proportion as opulence is abundant, the means of communication are at once capable of being rendered more prompt and more secure: the greater the number of inmates in a house, and the more constant the habit of residence on the part of each, the greater the certainty of conveying to the knowledge of the head, or any other member of the family, the information requisite. In a certain state of society—that, for instance, which to so large an extent has place in America—many are they who have no fixed place of habitation; many again, they who, having each a fixed habitation, leave it habitually unoccupied for any length of time: even in Switzerland, this Edition: current; Page: [55] latter case is to no inconsiderable extent exemplified.

As to the British Isles, in no part of them is this case exemplified to any considerable extent. Under the name of vagrancy, voluntary or involuntary, such is the benevolence and wisdom of English parliaments, it is ever punished as a crime.

In Ireland, the meanest hovel—and such hovels are but too numerous—is either entirely open, or has a door to it: in the general state of things, a door has place; but this being by appropriate force moveable, and as such distrainable, and being, in but too many instances the only thing worth distraining, is sometimes, say all the accounts, distrained for rent. Where the door does not exist, any missive sent by authority may find its way in: with so much the less difficulty where there is a door, the having in it a slit adequate to the purpose of epistolary communication might, without sensible hardship, be rendered a condition indispensable to the use of this instrument of security.

Antecedently to the letter-post, scarcely by the most opulent condition in life, could any absolutely secure means of epistolary intercourse be established. By letter-post, no condition in life so abject, but that, for any purpose such as that in question, it might, in the case of every individual, be established in every instance.

In every the smallest division of territory, the existence of a local headman being supposed, here would be a spot by repairing to which, an individual who had no settled habitation might be sure at any time of finding anything sent thither to his address. For nowhere in the territory of a state could an individual find himself, without finding himself in the territory of a local headman. In the official residence of this functionary, the individual who had no fixed habitation might at all times be sure of finding whatever it had been made his duty to see: and if unable himself to read, there he would moreover be sure of finding those, in whose instance no such inability could have place.

For him who had no fixed habitation of his own, judicial missives—he being prepared and pre-engaged to receive them—might be addressed to him at the local headman’s office: and for diminution of vexation to him who has a fixed habitation, another exemplar might be delivered at that same habitation; and so in the case of his having habitations more than one: and in this way may the most convenient provision be made for every occupation and situation in life.

Remains for consideration, the system of intercourse which the country affords: the territory of the state in general, and that portion of it in particular, from, to, and through which, on the individual occasion in question, the communication requires to be made.

In England, compared with all other countries on the globe, for this purpose as for every other, the adequacy of the means of communication is at its maximum, and by the spread of railroads, with self-moving receptacles moving on them, the maximum is in the act of undergoing prodigious increase.

For general purposes at large, and for commercial purposes in particular, in a country in which the population is at such a degree of density, the government post-office performs this function in a manner, the advantages of which are so strongly and universally felt. Justice, alas! presents a very different state of things. On this occasion comes the observation, that, unfortunately for England, the purposes of justice have never been the purposes of judicature, or the purposes of government: had they been, long ago the missionaries of the post-office would have been the missionaries of judicature; modes of delivery and receipt, together with appropriate documentary evidence of the facts, having for this purpose been established. But by the hierarchy of the post-office, probably by the hierarchy of the judicial establishment, obstacles, and those as insuperable as they could contrive to render them, would of course be opposed: to the most effectual and least vexatious arrangement that for this purpose could be proposed, the answer would of course be attached,—useless, mischievous, and impracticable: an official answer rendered familiar to him who writes this, by the habit of seeing it returned to proposed arrangements, which afterwards, when carried into effect, were found beneficial and unexceptionable.

§ 5.: Difficulties obviated.

For what purpose soever, and in what character soever, on the occasion of a suit or other application, an individual makes his appearance for the first time, the judge will not suffer him to depart, unless he has given indication of some habitation or habitations, at which, during the continuance of the suit, any mandate issuing from or sanctioned by the judge (whether of that territory or any other) will be sure to reach him, if transmitted by the letter-post, or any special messenger.

Of two habitations, indication may be given in the first instance: as thus, till July the first inclusive, a mandate will reach me, parish A of this territory, habitation No. 223; from July the 1st to July 7th, in territory (naming it,) parish C, habitation 67.

Of places of habitation, one after another indication may thus be afforded.

At any time, and so toties quoties, the indication given of the intended place of habitation may be changed.

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Of every such, indication so given, it will be presumed, that down to the last day in each instance any missive delivered at the habitation so indicated has been received by the individual in question, with a view to the purpose for which it was sent, that is to say, in the case of a judicial mandate, with a view to compliance therewith, in such sort that for non-compliance, prehension of the body may be effected.

By any one, in the list of appropriate excuses, the individual non-complying may be originally exempted; or, as the case may be, subsequently liberated from the necessary afflictive consequences.

Such excuse may be either ordinarily emanating, or vicarious: ordinarily emanating, when from the individual himself; vicarious, when from any other person.

Of these there are three lists:—

List 1. Containing those excuses which, in the nature of the case, cannot or are not allowed to emanate from any individual other than him to whom the missive is addressed.

List 2. Containing those which cannot, in the nature of the case, or are not allowed to emanate from the individual himself, and if delivered, must have been delivered by or on behalf of some other person.

List 3. Containing those which may indifferently have emanated either from the individual himself, or from some other person.

This business of securing judicial intercourse cannot but be attended with much diversification, and considerable difficulties: which difficulties are in considerable proportion the result of the natural, as contrasted with the technical system of procedure. Under the technical system of procedure, they have no place. Why? Because, under the techical system of procedure, no suit ever finds its way into the judicatory, but through the medium of a technical assistant.

1. Difficulty the first. The individual an individual by whom an offence in some shape or other has been committed, and who, in the event of his attendance in the judicatory, would expose himself to prehension on the ground of this offence.

Resource, or say arrangement for removal of the difficulty. If the punishment, or other burthen attached to his offence, is more afflictive than privation of the benefit sought for by his attendance, he will abstain from such attendance, and the burthen resulting from non-attendance will be a part, though by supposition no more than a part, of the suffering which is his due; in the other case he will attend. The suffering in question he will undergo; but he will receive a benefit, amounting to the difference between that suffering, and the suffering to which he would be subjected by non-attendance.

In the case of him by whom a professional assistant is employed, all difficulties may be made to disappear by his consent that every missive addressed to him at the habitation of such his assistant, shall be presumed to have been received by him within the appropriate time.

The case in this respect is very different according as it is in the character of proposed pursuer that the individual attends, or in any other character. If in the character of a proposed pursuer, the benefit expected by him to be gained by the suit is a benefit which, by any want of adequacy on the part of the indication afforded, he will be liable to forfeit, and which will accordingly operate as a security for such adequateness.

So, if it is in the character of a trustee regularly constituted, or self-constituted, that he attends. In this case, likewise, the correspondent security will have place, and by the amount of the benefit sought, will supersede the demand for an inducement of the coercive kind in any other shape.

But in every other case than this, such coercive inducement will manifestly be necessary; in particular, if the individual in attendance be a defendant, or an extraneous witness.

2. Difficulty the second. The individual in attendance, say an applicant, a person whose character is without reproach, but who, in respect of his means of livelihood, is in a state of uncertainty each day at what habitation his occupation may require him to be on the next.

In this case, he being by the supposition an applicant, he may be depended upon for doing whatsoever is in his power to save himself from being debarred from the benefit he seeks: as, for instance, giving indication of the employer or employers’ habitation for whom he expects to be occupied. If his situation is so unfixed as to deprive him of this resource, the case is of the number of those unfortunate ones, for which the nature of things allows not any remedy. At any rate, this inconvenience cannot be chargeable on the natural system; for under the technical system, an individual so circumstanced would not be able to obtain any such assistance.

3. Difficulty the third. The individual in attendance is one whose attendance is the result of compulsion; he being either a defendant, or an unwilling extraneous witness.

In this case, the judge will have to choose between the evils, and act accordingly—

1. The depriving the party who is in the right, of the benefit of the attendance in question.

2. The subjecting the individual, so in attendance, to confinement, so long as is deemed necessary to the purposes of the suit.

4. Difficulty the fourth. Neither the individual Edition: current; Page: [57] in question, nor any person in the habitation occupied by him, able to read.

Expedient for removal,—recourse to some constituted authority, resident in the parish in which the habitation, actual or expected, of the individual in question, is situated.

§ 6.: Future-communication-securing memento.

The person to whom this memento, signed by the judge, or, under his general direction, by the registrar, is to be delivered, is every person upon his first appearance in the justice-chamber before the judge.

The object, purpose, and use of this instrument, is the securing to the judge the means of communicating with the proposed communicant for the purpose of the suit, until the termination thereof, or until the end of the time during which it may happen to the judge to have need of such communication for the purposes of the suit. As soon as the need of communication with the intended communicant has ceased, information thereof will be afforded him by the registrar. Denomination of the instrument employed for this purpose,—an ulterior-communication release.

The following should be the form of the future-communication-securing memento:—

1. Mention the individual’s name and description at length, to wit, surname, christian name or names, or the equivalent. Office, if a functionary; other occupation, if a non-functionary; and abode or abodes permanent, if any. Such is the description you have just given of yourself.

2. Take notice, you have declared that until, by an ulterior-communication-release, delivered as above, you have been released from the obligation of communicating with this judicatory, for the purpose of this suit (or application,) every judicial paper, if delivered at that house, will be received by you, or by some agent of yours, authorized on your behalf.

3. In consequence, except in case of legitimate excuse (of the number of those to which the serving in that character has been given by law,) you will, in the event of non-compliance with any judicial mandate, delivered or left at such your chosen place of communication, be punishable, or otherwise dealt with, as for contumacious non-compliance.

At the first bilateral attendance, it belongs to the judge to collect and complete, at the hands of the defendant, information correspondent to that which, on the occasion of the first unilateral attendance, was required to be furnished to the judicatory, and entered upon the register.


§ 1.: Indicative and appropriate.

By appropriate evidence, or ultimately employable, understand all such evidence as is fit to enter into the composition of the grounds of the judge’s opinative decree, so far as depends upon the question of fact.

By simply indicative evidence, understand such as is not of itself fit to enter into the composition of those same grounds, but affords an indication of some source from whence, supposing the matter issuing from it true, evidence which is appropriate may probably be collected:—as where a person, who was not present at the place and time at which the fact in question took place, states himself as having heard of some other person as having been so present.

Widely different in investigational procedure, is the character of Roman-bred, and English-bred procedure: teeming with imperfections both of them.

As to Roman-bred procedure: throughout the penal branch of the field of law, solicitous and extensive has been the application given to such provision as it has made; in the non-penal branch, on the other hand, the provision has been comparatively scanty, the solicitude remiss.

At the same time, for want of a clear and correct conception of the difference between appropriate and simply-indicative evidence, it has given to evidence, which has been simply indicative, the effect of appropriate evidence. In the affair of Oates, for example, to such a length did this confusion proceed, that between simple indicative evidence presented to the judge, and the apprepriate evidence, supposing any to exist, there were four or five portions of simply indicative evidence interposed. It has notwithstanding been received, and made to operate, as if it had been appropriate evidence. Standing before the judge, I, said A, heard from B, that he had heard from C, that C had heard from D, that he had heard from E, that E saw done, by the accused, the deed with which the accused is charged.

English-bred procedure, on the other hand, limits to the penal branch of procedure—and of that branch to no more than a part—the application of the investigational process: to the non-penal branch, it has made no application of it, how great soever may be the importance of the matter in dispute.

On the other hand, in the cases in which it employs the process, it keeps clear of the mischievous absurdity with which, as above, Roman-bred procedure has distinguished itself.

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Meantime, nothing can be more manifest than that, if necessary to the discovery of truth in the case of any one species of suit, it cannot be less so in any other.

Of the whole list of vulgar errors, few indeed are so mischievous, few so gross, as that which supposes that, in the minds of that class of men who are styled ministers of justice, minimization of injustice has been the end to which their labours have been directed: to minimization substitute maximization, you will be near the truth.

That injustice might be maximized, it has been their interest, that of the use of falsity (the general instrument of injustice) the frequency should be maximized—the falsity itself maximized—and, moreover, so also the credence given to it.

To this end it is, that to so many various descriptions of persons, on this special occasion, for this special purpose, the licence to commit judicial falsehood with impunity—in one word, the mendacity-licence—has been granted, to an extent so all-comprehensive: and to this licence, in place of punishment, reward upon the most all-comprehensive scale has been awarded.

Descriptions of persons to whom the mendacity-licence has thus been granted, are these—

1. Parties on the pursuer’s side.

2. Parties on the defendant’s side.

3. Professional assistants, of the order of attorneys.

4. Professional assistants, of the order of advocates.

5. The judges themselves.

Of the error just mentioned, the mischievousness consists in the support given to a system thus deleterious, by the respect with which the authors and supporters of it have down to this time been, and are at this time now regarded.

Correspondent to the mischievousness of this error is its grossness. The mischievousness of the system, so manifest to the eyes of all, so severely felt by all, yet still, in the teeth of universal experience, with very small abatement, the error continues.

More than ten years* have elapsed since, by the hand by which these lines are penning, the opposite truth has been announced in print, and not only announced, but by the most abundant, and particular, and irrefragable proofs, demonstrated.

Imputations more reproachful can scarcely be cast by man on man, than in that work have been cast upon all implicated; yet still all is silence: and if in any case silence under accusation were confession of guilt, surely so has it been, and so continues it to be in this.

A more flagitious act of calumny could not have been committed, than would by this account have been committed, had the matter of it been other than true.

In no part of the civilized world are the name or the works of the author unknown: on no author that ever applied his labour to this field, have any such marks of approbation and applause been ever bestowed as on him. Ignorance, therefore, of the fact of the accusation, or of the prosecuting of the accusation, cannot, with any shadow of truth, be pleaded; yet still from all these quarters reigns the most imperturbable silence.

In the eyes of the people at large has this demonstration of all this guilt—this confession of guilt—been all this while manifest: the approbation and applause thus bestowed upon the author is such as to him would be sufficient reward, had he but the satisfaction of observing that the people for whom all this labour has been bestowed, and such a load of odium from the highest quarters voluntarily taken upon him, would but derive their profit from what has thus been done for them. But no such reward or satisfaction, so long as he lives, does he seem destined to receive. He pipes, but they do not dance—he makes the advances, but they do not follow. Through the paths it has been his endeavour to lead them, none are at once willing and able to follow.

§ 2.: Exclusion of party’s testimony, its ill effects.

Fertile source of injustice and oppression, the exclusionary rule which shuts the door against the testimony of the party.

Observe the consequences of the rule on the occasion of those dealings which have place, where the party on the one side is in a state of opulence, the other in a state of comparative indigence—say landlord and tenant—opulent customer and dealer—borrower and lender. The comparatively opulent man never acts, or treats of himself: everything he does is by the hand, or the help of an agent—in a word, an attorney. The comparatively indigent man, not being able conveniently to afford the purchase of any such expensive assistance, does everything by himself, and without the assistance of an attorney, deals with the attorney on the other side. Now observe the consequence: to the patrician’s attorney the law secures a complete mendacity-licence; everything that he says on behalf of his noble client is evidence—good evidence. How stands it with the plebeian? Nothing that he can say on his own behalf will be so much as heard. On the part of the attorney, suppose the most palpable, the most fiagrant perjury: What has he to fear for? Absolutely nothing. By no indictment for perjury, can the man who is injured Edition: current; Page: [59] by the perjury have any the smallest chance for satisfaction in any shape. In the wretched shape of vengeance? Not he indeed: give his testimony he may, but no effect can it ever have. Here is oath against oath: on no such evidence will conviction be ever suffered to have place.

What is observable is, that in this source of injustice and oppression, the aristocracy as such have an obviously strong and sinister interest: whether it be in the nature of the case that they should fail of being fully sensible to the value of this sinister interest, let every one judge.

§ 3.: Evidence receivable.

Received in every case from the applicant may be as well simply-indicative as appropriate, or say ultimately-employable evidence.

Rationale.—Reasons for the admission:—

1. The individual whose interest the evidence serves or stands to serve, may be unknown to the informant.

2. To the informant more delay, vexation, and expense, if any, may be produced by intercourse (or perhaps previous fruitless endeavours to obtain intercourse,) with persons interested, than by repairing at once to the judicatory, open as it is to him, and to everybody at all times, and provided with evidence-extractive powers, of which he is destitute.

3. A case that frequently has place is, that by fear of others on whom he is more or less dependent,—hope in like manner from others, or sinister counsel,—a person whose lawful interest would be served by giving the information which is in his power, is prevented from so doing: whereas, if, in consequence of simply-indicative evidence furnished by another person, he had, on receiving an appropriate mandate from a judge, attended and delivered his evidence, being thus seen acting under a manifest legal necessity, no such displeasure on the part of the apprehended oppressor would probably have been entertained: at any rate, it would have prevented it from producing any such evil effect as that of a denial of justice.

4. It may happen, that though the question of particular interest is between individual and individual, there has been, in the act indicated, a degree of turpitude, such, that on the account of the public it would be of use that the evil disposition of the agent should become generally known.

Particularly important is the need of simply-indicative evidence, in the case where, by the regulation for the extraction of self-notificative evidence, a person of bad repute would as such be naturally disinclined to pay spontaneous attendance: on the ground of the simply-indicative evidence, any such person might nevertheless be made compellable.

Simply-indicative evidence, however, although, with reference to the particular fact in question, unappropriate, will not however be to be omitted out of the record.

Rationale.—1. It may serve either to impugn or to confirm the trustworthiness of the person from whom, in pursuance of the indication given, appropriate evidence shall have been elicited.

2. In case of criminal or culpable falsehood on the part of an indicative witness, it may be necessary for his conviction of, and punishment for that offence.

Frequently from the same source—for example, from the statement of the same person, evidence of both descriptions will come at the same time: in this case, the distinction will with particular care be to be adverted to, and held up to view by the judge.

§ 4.: Modes of interrogation to be abstained from.

1. Fact-assuming interrogation.—In this mode, of the fact, the existence or non-existence of which is the subject-matter of inquiry and proof, the existence is assumed and taken for granted.

Example:—“At what distance were you from your friends when you fired at them?”—the subject-matter of pursuit being the alleged offence of firing a gun at those same friends.

For a question of this sort put by a judge, or without reprimand suffered by him to be put, the judge will be reprimanded, and a memorandum of such reprimand entered on the judicial-delinquency register, kept respectively by the appellate judges, and the justice-minister.

For a question so put, for the purpose of entrapping a defendant into a confession, he may be dislocated.

§ 5.: Choice as between species and species of Evidence.

Avoid, as far as may be, all recourse to character evidence—employ it not, but where the event of the suit depends altogether upon the degree of credit given to the individual witness, to whose character objection is made.

To this purpose, consider, that in English practice the punishment of death has every now and then been inflicted on the ground of no better or other evidence than the testimony of some one individual, to whom as disreputable a character as can be imagined has at the same time been seen to belong: he at the same time being apprized that the preservation of his life depends upon his giving his testimony in a certain direction.

To the judge’s notice the observation will not escape, that to the thread of character-evidence, when once begun to be spun, there is no certain termination.

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Generally speaking, where, as under this code, the power of interrogation is given to every description of person, in whose instance it affords a promise of being of use, and the exercise of it is unfettered by needless and useless rules, few mendacious witnesses will pass undetected, and any additional light that by possibility might be afforded by examination into general reputation, will be of little worth: the mode of communication at all future times with every witness being secured, and the faculty of re-examining at any time during or subsequently to the continuance of the suit in question being reserved. Under English practice, it is to the inaptitude of the whole system that character-evidence and alibi-evidence are principally indebted for the importance ascribed to them, and the use made of them.

Alibi evidence.—Against deception, and from evidence of this description, the judge will be in a great degree guarded, by the indispensable arrangement, the communication-securing arrangement: carried into practice, as it will be, in the instance of every individual who makes his appearance before a judge, either in the character of applicant pursuer, defendant, or extraneous witness.

This is of the number of the cases in which an adequate demand for character-evidence is most apt and likely to have place.

§ 6.: Causes of mendacity—Practice of English judges.

Of Hudibras it is recorded thus:—

  • . . . . . . . he scarce could ope
  • His mouth, but out there flew a trope.

Of an English lawyer, and more especially of an English judge, the same thing may be recorded with much more truth and reason, though without rhyme, if for the word trope, the word lie be substituted.

The judges more especially, as being the causes that lies are in other men, may be termed with distinction, ϰατ’ εξοχην, the fathers of lies: for it is by them, that from first to last, lies have not only been tolerated and uttered, but actually compelled—compelled on pain of outlawry.

If veracity be part of morality, if in mendacity there be criminality,—one of two things, to any one, be he who he may, is inevitable:—either morality itself must be an object of his contempt, or the whole tribe of English judges: they by whom, if at their instigation a man refused to defile himself by a lie, he would be punished by them as for a contempt—(for that is the appropriate phrase)—for contempt manifested to their authority.

Evidence immediate and intermediate, or say interventional. By immediate, understand a statement made by a self-alleged percipient witness, in relation to the matter of fact reported by him.

By intermediate, or say interventional evidence, understand a statement made by a person who is not, with relation to the matter of fact, a self-alleged percipient witness, but in relation to the matter in question has received his conception from some person, represented to him in the character of a percipient witness; to wit, either immediately, or through the medium of any number of intermediate witnesses, making a statement to the same effect the one to the other, in a chain of any length.

Uses of intermediate evidence:—1. Serving for the procurement of immediate evidence; 2. Eventually serving in lieu of, or in addition to, immediate evidence.

Exceptions excepted, intermediate evidence will not be ultimately employable; to wit, in the character of a ground, or constituted part of a ground, for a judicial decree or mandate.

Exception is, where the alleged percipient witness is not examinable, but at the expense of preponderate evil, in the conjunct and aggregate shapes of delay, vexation, and pecuniary expense.

§ 7.: Probation.

Probation is an operation, which in all cases must be performed on the pursuer’s side, and in many instances comes to be performed on the defendant’s side.

On the pursuer’s side, under this system of procedure (it being the natural one,) a course of probation is complete, or incomplete and partial, as it may happen, being involved in the operation of application by and with which the suit commences.

It includes in it constantly two assertions: the matter of one of them being the matter of law, declaring the existence of a portion of the code, to this or that effect; the other having for its subject-matter fact; to wit, an individual fact, in relation to which an arrangement to the effect stated as above has been made by the portion in question of the text of the law.

Of the application, the substance and effect has been to demand at the hands of the judge a certain judicial service. This service consists in giving, on the occasion in question, execution and effect to a certain portion of the text of the code, viz. the portion just spoken of: and the warrant for the operation which the judge is so called upon to perform, is the existence of the above-mentioned matter of fact, bearing such relation as above mentioned, to the above-mentioned portion of the matter of law.

Example:—Suppose the service demanded, compensation at the charge of a defendant, for a wrong alleged to have been done by him to the pursuer, by a blow given to him on a certain part of the body. By the wrong thus done, an offence, belonging to a certain genus of offences, has been committed—a genus of Edition: current; Page: [61] which the denomination is, wrongful corporal vexation.

In this case, the matter of fact has for its alleged percipient witness the applicant himself, who, if he is to be believed, has been the immediate sufferer by the wrong.

But suppose, according to the case stated by him, the person on whose body the wrong was inflicted—the offence committed—was not the applicant himself, but a child of his, too young to be capable of stating the matter of fact.

In this case we see two distinguishable matters, or alleged matters of fact:—

1. The act by which, if the allegation be true, the blow was given: call this the principal fact.

2. The act performed by the applicant in making the allegation to this effect: call this the evidentiary fact.

By the allegation thus made, the existence of the principal fact has been provisionally, or say eventually proved: if, in the opinion of the judge, the assertion so made is true, insomuch that the principal fact asserted by it to have happened, did really happen at the time and place asserted, i. e. supposing him inclined to believe it;—failing proof to the contrary, he will declare accordingly. But it may be (for so the experience of the judge will have demonstrated to him,) that the allegation the applicant has thus been making is, in the whole, or some essential circumstance, untrue: by the applicant or his child, no such blow was received—or if received, received from accident, such as an unintended push by another person, or the fall of some utensil from a shelf. &c.: any of which matters of fact, the defendant might and would with truth assert, if the opportunity were given him of being heard. Relation had to the evidence so delivered as above, such evidence, if delivered by the defendant, would be counter-evidence: it may be delivered either by the defendant himself, who, in virtue of being himself the deliverer of it, would be a party witness, or say a litigant witness; or by a third person, who (not having been placed by the pursuer either on his side, in confirmation of the demand as a co-pursuer, or on the defendant’s side, as a co-defendant) may be styled an extraneous witness.

But what may also be is, that all the pursuer has said is exactly true; and yet the fact thus averred, and we will suppose and say proved by him, will not be sufficient to warrant the judge in rendering to him the service so demanded, as above. It may be, that though the defendant gave him the blow, it was not till after he himself had given the defendant a blow, and that a more violent one; and that the blow so given to the pursuer had no other object than to prevent him from giving the defendant other blows, which he saw the pursuer prepared to give. Making an assertion to this effect, he will be delivering another species of counter-evidence, evidence probative of a fact, not consisting of the negative of the fact asserted by the pursuer, but of a totally distinct fact, of the positive kind, the effect of which, in respect of the destroying the ground of the demand, would be the same as that of the just-mentioned negative one.

§ 8.: Evidence as to character.

By evidence as to character, or say character-evidence, understand evidence having for its subject-matter the aptitude of the individual—aptitude, moral, intellectual, and active, with relation to the part acted or proposed to be acted by him in the suit; whether it be that of—1. Party-pursuer; 2. Party-defendant; or 3. Extraneous witness.

Case the 1st, that of a party on the pursuer’s side.

On the subject of the aptitude of the individual to be received in the character of pursuer, no evidence will be received. Reason: No person should be excluded from the capacity of demanding remedy in every shape, from wrong in any shape.

Case the 2d, that of a party on the defendant’s side.

On the subject of the aptitude of an individual to be received in the capacity of defendant, no evidence will be received. Reason: No person should be excluded from the capacity of preserving himself from undue burthen, on the score of remedy for wrong alleged to have been done by him; if he were, he might be wrongfully subjected to whatsoever suffering is ordained by law to be inflicted, whether for the purpose of satisfaction, or the purpose of punishment.

Case the 3d, that of an extraneous witness.

In the first instance, exception excepted, no evidence will be received in relation to the character of an extraneous witness.

Exception is, where the proposed witness has been convicted of judicial falsehood, criminal or culpable, or say with evil consciousness, or through culpable inattention. In such cases, use may be made of the record in which such conviction is recorded; and this without other reference than the inspection of that record on the spot, or the procurement of it through the letter-post.

In the case when, of two witnesses the evidence being irreconcilably contradictory, and the decree as to the question of fact depending on the credence given to the one or the other,—if, in relation to one of the witnesses by a party on either side, declaration is made that he is generally regarded as a person in whom mendacity is habitual, power to the judge to elicit evidence in proof of the untrustworthiness so alleged.

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But in the exercise of this power he will be guided by the consideration of the importance of the subject-matter in dispute, compared with the expense, delay, and vexation likely to result from the elicitation of the mass of evidence, the elicitation of which is likely to be on sufficient grounds demanded.

Why, in ordinary cases, put an exclusion upon character evidence?

Answer: For the reason that the effect of any evidence, in affirmance even of habitual mendacity, will not be to produce the exclusion of the individual in the capacity of a witness: sole effect, that of producing an opinion in affirmance of a corresponding degree of comparative untrustworthiness on the part of his personal evidence.

For this opinion, the utmost ground that can be afforded cannot amount to anything more than as a weakly operating article of circumstantial evidence. It follows not, that because a man has uttered wilful falsehood, in cases where in case of mendacity no punishment awaited him, he would, in anything like to an equal degree, he likely so to do in a case in which by such mendacity he exposed himself to the punishment appointed by the law for that crime.

Boundless is the delay, expense, and vexation which it would be in the power of a mala fide litigant to necessitate, if an unlimited right of calling in evidence for this purpose were established.

Boundless the number of witnesses whose evidence might be called in, in the first instance; for the need would be variable according to the importance of the matter in dispute, and the difficulty attendant on the question of fact, with or without other circumstances. Incompatible with any well-grounded decision on the question regarding evidence, would be every attempt to fix the allowable number of character-witnesses, by any general rule.

But if, in the first instance, no well-grounded limits could be put to the number of mendacity-imputing witnesses, as above, so neither could there be to the number of mendacity-imputing witnesses, whose evidence was demanded for the purpose of imputing mendacity to any or all of the first set, of mendacity-imputing witnesses. Here, then, might be a second set—thence a third set—and so on; the number increasing in a geometrical ratio.

To an assertion imputing habitual mendacity to a man—to an assertion to this effect, how decidedly soever mendacious, no punishment, as for mendacity, could be attached, unless asseveration of individual acts of mendacity, as having been committed on so many individual occasions, were received. But to give acceptance to such asseverations, would be to include in the bosom of this suit, the procedure in relation to as many distinguishable suits as those acts of mendacity so imputed; for as in other cases, so in this: if criminative or inculpative evidence were received, how, consistently with justice, could excriminative or exculpative evidence be excluded?

By the vexation which, on the part of the witnesses themselves, would be attached on the elicitation of their evidence, a proportionable objection to the elicitation of it would be afforded. As to compensation—out of no other pocket than that of the inviting party could it come; and in this case the benefit of it would be allotted exclusively to the relatively opulent, to the exclusion of the relatively unopulent.

Existing system.—It admits of character-evidence, not only in relation to extraneous witnesses, but in relation to parties defendant; not only of the dyslogistic, including the mendacity-imputing cast, but of the eulogistic cast: and altogether boundless is it, as to number: and without exception as to quality is it, as to the persons whom it renders consultable.


§ 1.: Commencement of a Suit.

Every suit must have its commencement: in this circumstance all suits agree. But different sorts of suits, or suits of the same sort, may be commenced in any one of a considerable variety of modes.

Under the present proposed code, every suit takes its commencement in the same manner: personal application made by some individual to the judge; for, to the judge, and to him alone, belongs the power to give execution and effect to it. This accordingly may be styled the natural system of procedure.

Sooner or later, at some time or other, an application by somebody to the judge (unless he himself will give commencement to the suit,) cannot but be made. But if made at all, at what other period can it with so much propriety be made—be made with so little danger of substantial injustice, with so little of evil in the shape of expense, vexation, and delay? The expense is minimized; for the sole expense is that of the applicant’s time: vexation is minimized, for to no individual is vexation in any other shape produced; and, in the case of that individual, the vexation is more than compensated for, or he would not inflict it on himself: delay is also minimized, or rather at this point it is excluded.

In no other mode can commencement be given to a suit, without a mass of evil in the Edition: current; Page: [63] united shapes of expense, vexation, and delay, to which there are no bounds.

To commencement in this mode (if this be the mode throughout the territories of the state,) a multitude of judicatories, stationed with reference to facility of approach to applicants, are evidently indispensable. But whatever be their number, it follows not, that in the mode of procedure (military judicature being out of the question,) any the smallest difference should have place.

Under the English judge-made law, not only different sorts of suits, but in different judicatories, suits of the same sorts, take their commencement in a variety of different manners.

In all these judicatories, the mode of commencement agrees however in this; to wit, that the suit does not commence by personal application made by any individual to the judge. Should any such application be made, it would be instantly, and not without indignation, refused—a refusal with indignation, which, were the application made in secret, would beyond dispute be justifiable and indispensable.

Two different modes of commencement are here distinguishable:—1. Non-penal, styled civil; and, 2. Penal. In the civil, moreover, may be distinguished, two sub-modes—the common-law mode, and the equity mode.

The common-law mode is that pursued in the common-law judicatories; to wit, the King’s Bench, the Common Pleas, and the common-law side of the Exchequer.

In all cases, the object being to put money into the pockets of the judges, to that object, and that alone, except the like benefit to the other members of the firm of Judge and Co., the mode of procedure is made subservient. In Westminster Hall and its purlieus, Judge and Co. keep open shop. For the profit upon the expense, they sell to every individual that will pay the price of it, the power of imposing expense and vexation to an amount more or less considerable—to any person, and any number of persons, or purchasers, as may choose—at whatever distance it be from the shop, so it is within the limits of the English part of the kingdom. To this shop, the plaintiff who has suffered wrong is forced to make application, and thus add suffering to suffering ere he can begin to take his chance for relief. The plaintiff whose object is to do wrong, employs the hand of the judge as an instrument, and having paid the price of it, is then enabled to commence the career of wrong, heaping suffering upon suffering, until the measure of intended wrong is filled, and the proposed quantity of suffering produced.

At these same shops are sold, in this shape, with the exception of certain privileged classes, the personal liberty of every man, to whoever would pay the price, down to a certain time within the memory of men now living, without other condition than that of paying the price; since that time subject to a condition, which, while it diminishes the evil in extent, gives increase to it in magnitude. The seizure of the person cannot take place without a previous written instrument, consisting of a declaration made by the plaintiff, and sanctioned by an oath, affirming the existence of a pecuniary demand on his part, to a certain amount on the score of debt.

Of the founders and supporters of this system of law, the morality may be seen in the length of time during which this unlimited sale of this unlimited power of oppression continued to be carried on: and also in the inadequacy of the remedy to its professed purpose. Instead of being creditor to his intended victim, the plaintiff may be his debtor to an unlimited amount; and still, without incurring the professedly threatened penalty, he may work the intended wrong. By a word or two, the form of working it with impunity could have been refused to every plaintiff, who could not prove himself creditor upon the balance. To mischief, working by Judge and Co., matters are so ordered, that by no hand can remedy be applied other than that of Judge and Co. It is, accordingly, on every occasion, sure to be as secure and as fertile in ulterior mischief as the craft can make it. In parliament, by no hand but by that of a lawyer, can relief to any oppression, of which law is the instrument, be applied. If no one appears, the bill is of course rejected; scorn and contempt being at the same time the reward of the benevolent hand by which it was presented. I am not prepared, says the chief of the king’s longrobed creatures in the House of Lords—I am not prepared; and in this situation the non-preparation has the effect of the king’s negative.

§ 2.: Initiatory application, litiscontestational.

The applicant being established in the character of a litiscontestational applicant, or say pursuer, and a correspondent memorandum entered on the register, the judge will-have to consider the next operation, or assemblage of operations, which the nature of the case requires at his hands.

These operations may be either operations affecting persons alone, operations affecting things alone, or operations applying to persons and things.

Exceptions excepted, the next operation will be performed by the issuing of—1. A proposed defendant’s attendance-requiring mandate. In case of defendants more than one, an attendance-requiring mandate for each one. 2. A proposed defendant’s examination-mandate, or say examination-paper; and so where there are proposed defendants more than one, defendants’ examination-paper addressed to Edition: current; Page: [64] each; the proposed defendant being, in this case, the only person addressed in the first place.

Exceptions are, when in consideration of the state of the case, as resulting from the examination of the applicant, as entered in the record it appears to the judge that the purposes of justice are more effectually accomplished by the simultaneous or previous issuing of an attendance-requiring or examination mandate, as the case may appear to require, addressed to a proposed co-pursuer, or to a supposed evidence holder, and proposed furnisher of evidence, personal, real, or written, or of all three sorts, or of any two thereof, as the case may be.

In case of need, in lieu of an attendance-requiring mandate, the judge may, in the case of any one or more of such persons, issue a prehension mandate.

Of the need of a prehension mandate, in lieu of an attendance-requiring mandate, at the charge of the proposed co-pursuer, an example may be found where, in relation to the service required at the hands of the judge, the proposed co-pursuer has an interest conjoint with that of the applicant; but an apprehension exists, lest, through indolence or fear of resentment, at the hands of a proposed defendant, the proposed co-pursuer might be induced rather to give up the pursuit of such his interest, than join in the pursuit of it.

Note, that if the apprehended non-pursuit would have for its cause fear of resentment, as above, it may be for the advantage of the proposed co-pursuer, that his junction with the applicant pursuer should appear to be the result rather of inevitable necessity, than of consent.

Of this need of a course taken for causing the attendance, or even response, on the part of a proposed co-pursuer, antecedently to attendance or response on the part of a proposed defendant, or even to the issuing of a mandate for the procurement thereof respectively, the same example may serve.

Of the need of an attendance-requiring, or a prehension mandate, at the charge of a supposed evidence holder and proposed evidence furnisher, examples are the same as in the case of a proposed co-pursuer; and the reluctance on both accounts will be more apt to have place.

In regard to attendance-requiring or prehension at the charge of a proposed evidence furnisher, the question for the consideration of the judge will be, by which course the greatest detriment would accrue to the interest of both parties and the public; to wit, by the vexation attached to the furnishing of the evidence, or by the danger of a decision adverse to the interest of the applicant-pursuer for want of the evidence so desired.

Of the vexation attached to the furnishing of the desired evidence, the quantum will be considered on each of two suppositions; to wit, absence of compensation, pecuniary or quasi-pecuniary, and receipt of compensation in such quantity and quality as the judge may think reasonable, and the applicant pursuer able and willing to allow.

On the occasion of such allowance, it will also be for consideration what, if any, ground there is for the expectation, that in the event of the pursuer’s succeeding in his demand, it will be right (the pecuniary and other circumstances of the proposed defendant considered,) and practicable at the same time, consistent with justice, that the burthen should be transferred from the shoulders of the pursuer to those of the defendant.

To this purpose, a circumstance pre-eminently material will be the importance of the proposed evidence-furnisher’s evidence, with relation to the event of the suit. The case in which this importance will be in the highest degree, is that where, for the proof of the supposed fact, the nature of the case does not at the time in question afford any evidence other than his. Next comes that in which, in interest or supposed affection, the supposed evidence holder and proposed evidence furnisher, is apprehended to be adverse to the pursuer’s person, or to this his demand.

The greater the number of the persons capable of furnishing the evidence required, and the more material the evidence in the instance of each, the less will be the need for taking the more vexatious course for the procurement of their evidence respectively.

For the more effectual avoidance of needless delay, or vexation and expense,—out of the whole number of supposed evidence holders proposed to him, the judge may take for examination in the first instance any lesser number, reserving to himself the power of doing the like in the case of any additional number; and this not only at a time anterior to that of the defendant’s answer, or personal attendance, as the case may be, but even at a time posterior, not only to that of the defendant’s response or attendance, but to the time of his having furnished evidence from extraneous and non-litigant witnesses.

§ 3.: Reiteration of suits—none.

Previously to the giving admittance to the applicant in the character of pursuer, the judge will examine him as to the having made the same demand by application to any other judicatory.

Exceptions excepted,—in respect of no suit which has been terminated, or is pending in any judicatory, shall application be made by any party, on either side, to any other than the appropriate appellate judicatory.

For in this case, such fresh suit would, if Edition: current; Page: [65] suffered to be entertained, have the effect of an appeal.

Exceptions may be when, after the termination of a suit in an immediate judicatory, whether without appeal or with an appeal, evidence, the existence of which the applicant had no knowledge or suspicion of, has been made known to him: at the same time that for the elicitation of the aggregate mass of appropriate evidence, including that which had been elicited in the course of the former suit, in the judicatory thus applied to in the second instance, the suit may be carried on, and terminated in a manner more conformable to the ends of justice, direct and collateral together, taken in the aggregate, than in the judicatory in which, in and by the first suit, it received its termination.

On an occasion of this sort, by the examination of the applicant, the judge will obtain satisfaction in relation to the facts, from which it will appear, on the side of which judicatory the balance is, in respect of preponderate convenience.

If, of the evidence thus adduced, the effect be that of counter-evidence, in relation to a principal, decided upon on the occasion of the former suit, the judge will use his discretion as to the taking for the ground of his decision in addition to the fresh body of evidence, the evidence elicited on the occasion of the former suit, as exhibited in the record, or re-eliciting the evidence elicited on that former occasion; or, after eliciting the fresh evidence, referring the applicant to the judicatory in which the suit received its termination in the former instance.

In case of his determining to employ the evidence elicited in the former suit, an exemplar of it will, of course, unless mislaid or lost, or wilfully destroyed, be already in the possession or power of the applicant.

In contemplation of this contingency, if the stock of such exemplars (eight in number which are as many as are capable of being in equal perfection taken at once) be not exhausted by other more certainly needful demands, there may be a use in furnishing the party or parties on both sides, with additional exemplars respectively.

It may be, that by a party in whose disfavour, (though as far as the mass of evidence actually produced is considered on sufficient grounds) the suit received its termination, expectation of being able at some future time to exhibit a piece of evidence, not at that time in his possession, power, or even knowledge, may be entertained. In this case it will rest with him to request of the judge for this purpose a spare exemplar, and with the judge to grant or refuse it according to circumstances as above.

If the fresh evidence, as announced, do not contain in it any evidence of a nature to operate as counter-evidence in relation to a principal fact evidenced to,—a principal fact of the number of those, to the probation of which evidence was employed in the former suit; but only evidence in support of a counter-fact, that is to say, a fact constituting, or helping to constitute, a decision opposite to that come to in the former suit;—in such case the judge will not entertain any objection to the decision come to as to the matter of fact in the former case by the other judicatory: but in relation to the evidence adduced as proof of the counter-fact, he will pronounce such opinion as appears to him well grounded, and therefore and thereupon, such imperative decree as the case requires, in affirmance or disaffirmance of the decree pronounced on the occasion of such anterior suit.

On this occasion, as on every other in which a fresh suit is endeavoured to be commenced on the ground of evidence alleged to have been discovered not till after the elicitation of the evidence in the course of the former suit, the judge will with particular attention scrutinize into the truth of the allegation, lest by needless reiteration of suits, danger of misdecision or delay, vexation and expense, should, by evil consciousness, negligence or temerity, be increased.

It may be, that after the decease or incapacitation of him who was pursuer or defendant in the former suit, discovery of fresh material evidence may have been made, or may be alleged to have been made, by the post-obituary, or other representative of the party in that former case. In this case it may naturally happen, that the knowledge of what passed on the occasion of the former suit is not so perfect and adequate on the part of the representative, as it would have been on the part of the principal: and in particular what may happen is, that though the spare exemplar had been obtained by the principal, neither of the one nor of the other is the existence known to the representative.

For the ascertaining the fact of the existence of such anterior suit, the judge will, in case of doubt, address himself by an appropriate instrument—an information-requesting address, to any such judicatory or judicatories as the occasion shall have suggested to him as likely to possess the information needed.

§ 4.: Demand-Paper.

In the demand paper will be inserted the denomination of the offence, to which it appears that the act is referable.

As in numerous instances the offences run into one another in such sort, that the same individual act may without impropriety, be susceptible of several denominations,—or it may as yet be matter of uncertainty to which of several the evidence may, on judicial examination Edition: current; Page: [66] be found to apply—divers offences may to this purpose be named in the disjunctive.

When the demand paper is brought ready filled up under the proper heads, time will so far be saved, and trouble saved to the judge: it will in this case have been the work of the pursuer, or his legal advisers.

In the case where an uninformed and unassisted individual comes to tell his story to the judge, it will belong to the judge, upon taking his examination, to fill up the demand-paper.

As the supposed facts come out in the course of the examination, the denomination of the offence may from time to time be amended toties quoties: offence or offences struck out—offence or offences added.

By the same person, to the same person, wrong in an indefinitely numerous variety of shapes, each of them characterized by the denomination of an offence, may have happened to have been committed. By one and the same lot or mass of evidence, it may happen to it to have been substantiated; by decision pronounced on all the demands at the same time, delay, vexation, and expense will be minimized.

Thus, by the multitude of the instances of wrong, no room is afforded for the giving impunity in any of them.

In this case, whatsoever has been the number of the wrongs committed, each productive of its separate mischief, so many separate demand papers may there be.

It may be, that in regard to several wrongs committed on the same day, by the wronger on the wronged, in the instance of one or more of them, the wronger has had one or more accomplices; in another, others; in another, none. Out of this circumstance arises a farther demand for separate demand papers.

Demand-Paper A.

Demand and suit simply requisitive—not inculpative.

Heads, under which the matter of a pursuer’s demand is to be stated for the purpose of the judge’s determination, whether to call upon any person, in the character of a proposed defendant, to comply with the demand, or contest it:—

I. Pursuer or pursuers, who.

Heads under which entries are to be made in relation to each:—

1. Sex.

2. Condition in respect of marriage, viz. whether, i. Never married; ii. Widow or widower; iii. Married.

3. Age. Time of birth, if not exactly known, according to conjecture; if exactly known, year, month, and day of the month.

4. Birth-place; whether within or without the territory of the state: if within, mentioning the district, subdistrict, and bis-sub-district.

5. Occupation—or occupations: profit-seeking, if any, what; so, official.

II. Means of intercourse for the purpose of the suit.

I. Habitation, to which a mandate or other message from the judicatory may be directed with assurance of its being received,—the habitation being identified, as per Election Code. On every change, the information under this head will have to receive a corresponding change.

III. Effective service demanded.

This is that which is performed by concurrence in the division of the subject-matter, of one inchoate and ineffective, into a number of consummate and effective rights; to wit, by the correspondent judicial service.

N. B. The right to an as yet unliquidated portion of an aggregate mass of property, is an inchoate and ineffective right as to every part of it: the right to any such part, when, by an act of the judge, separated from the rest and conferred on a demandant, to be by him possessed in severalty, is a consummate and effective right; the exercise of it not requiring any ulterior act on the part of the judge.

For the list of the cases in which, to render it as above effective, a right requires a corresponding act or set of acts on the part of the judge, see—the Right-conferring Code, or say, the Non-penal Code.

IV. Collative portion of law relied on.

Under this head, mention will be made of the code, chapter, section, and article, in which inchoate rights of the sort in question are mentioned, with the cases and modes in which they may be rendered consummate.

V. Collative fact alleged.

This will be an individual event, or state of things, of the number of those which, in virtue of the correspondent collative portion of law, have the effect of giving to the person in whose favour they have place, the right to demand the effective service of the sort in No. III. mentioned. Example:—

P. E. being possessed of a portion of land called Springfield, situated in the bis-sub-district called Highbury, having four children, of whom the pursuer D. E. is one, died, to wit, on or about the 1st of January 18; whereby, under the law, as per No. IV. the pursuer is entitled to demand at the hands of the judge, one equal fourth part of the said portion of land, and at the hands of the other three, their concurrence in the division so to be made.

VI. Co-demandant or demandants,—none. Proposed defendants—A.E., B.E., and C. E., co-interessees with D. E. as above.

VII. Evidence looked to in proof of the collative fact alleged, as per No. V. personal: the declarations expected from the mouths of C. G., E. H., and M. R., who were present at the death.

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VIII. Ablative fact, none. Example:

1. To no person had the deceased transferred the said land, or any part of it.

2. No statement had he made, ordering any other disposition to be made of it.

IX. Counter-evidence,—none—no person either entitled or disposed, by oral judicial statement, or otherwise, to deliver evidence, in contradiction to the legitimacy of the pursuer, or the death of the person hereby alleged to be dead.

X. Counter-demand,—none. No person has, or conceives he has, any demand upon the pursuer, of such sort as to disqualify him from making this demand.

XI. Judicial service demanded. This service consists in the issuing and giving execution and effect to such judicial mandates as shall be requisite and sufficient to put the pursuer in possession of his said equal fourth part of the said land.

This case is the one first brought to view, as being, in appearance at least, the simplest. But it is one by which but a small part of the field of law, substantive and adjective together, is covered. It is, however, the sort of case by which the greatest variety of complication is exhibited; and in which the mass of unavoidable delay, vexation, and expense is apt to be maximized.

Demand-Paper B.

The demand inculpative, but not criminative.

Heads under which the matter of the pursuer’s demand is to be stated for the purpose of the judge’s determination, whether to call upon any person, in the character of a proposed defendant, to comply with the demand, or to contest it:—

I. Pursuer or pursuers, who.

Heads under which entries are to be made in relation to each:—

1. Sex.—2. Condition in respect of marriage, viz. whether, i. Never married; ii. Widow or widower; iii. Married.—3. Age. Time of birth, if not exactly known, according to conjecture: if exactly known, year, month, and day of the month.—4. Birthplace, whether within or without the territory of the state; if within, mentioning the district, subdistrict, and bis-subdistrict.—5. Occupation or occupations: profit-seeking, if any, what; so, official.

II. Means of intercourse for the purpose of the suit.

1. Habitation, to which a mandate, or other message from the judicatory, may be directed, with assurance of its being received, the habitation being identified, as per Election Code.

On every change, the information under this head will have to receive a corresponding change.

III. Effective service demanded; to wit—Appropriate satisfaction for some wrong alleged to have been done to the pursuer by the proposed defendant; that is to say, for some individual act, productive of damage in some shape to the pursuer, and as such at least culpable; belonging to some one of the sorts of offences mentioned under the head of private offences, or offences against individuals, in the wrong-restraining, or say, the Penal Code; mentioning the name of the sort of wrong, with the chapter or chapters, section or sections, and article or articles, in which the description of it is given, together with that of the sort of satisfaction provided in respect of it.

IV. Collative portion of law relied on by the pursuers.

This will consist of the article or articles referred to, in the manner in No. III. particularized. It is called collative, in respect of its conferring on the pursuer the right to the effective service demanded, as per No. III. Collative with relation to the pursuer’s title to the service, as above, demanded by him,—it will, with relation to the burthen imposed on the defendant, by the obligation of rendering that same service, be onerative.

V. Collative fact alleged.

This will be the committal of an individual act, of the sort of some one of those mentioned in No. III.

VI. Co-demandant or co-demandants, it any, and proposed defendant or defendants.

Those persons, to wit, who, by the pursuer are looked to in those several capacities; with their several descriptions, as per No. I.: also the means of intercourse with them respectively, as far as known or believed, as per No. II.

VII. Sources of the evidence looked to in proof of the collative fact alleged, as per No. V.; to wit,

Such persons, together with such writings, and such other things, if any, as the pursuer looks to, in that character, for support to his demand. The evidence itself will remain to be elicited at the hearing, from those its several sources.

VIII. Ablative facts negatived.

Of any adequate ablative fact, the effect will be, in every case, to take away any right conferred by a collative fact. The affirmance of the non-existence of all such ablative facts must therefore be exacted, as well as the affirmance of the existence of a collative fact, as per No. V., and thence of a right to the effective service demanded, as per No. III.

Ablative with relation to the pursuer’s title to the service demanded by him,—with relation to the burthen imposed on the defendant by the obligation of rendering that same service, it will be exonerative.

IX. Counter-evidence, if any, from what sources expected. Counter-evidence, or evidence either in disproof of a fact which, with reference to the pursuer’s demand, is a Edition: current; Page: [68] collative fact, as per No. V., or in proof of a fact which, with reference to it, is an ablative fact, as per No. VIII.

X. Counter-demand, whether any, and if any, what, according to the knowledge or belief of the pursuer, declared: counter-demand, to wit, a demand on the part of the proposed defendant, at the charge of the now pursuer. Any such counter-demand, if just, will, according to the value of it, compared with that of the corresponding effective service, as per No. III., take away the pursuer’s right to it.

But it will not afford, as an ablative fact would, a ground for the dismissal of the demand: only for doing away, or lessening the amount of, any preliminary security which might be needful for securing execution to the collative law, as per No. IV., and thence to the pursuer the benefit of the effective service.

XI. Judicial service demanded.

This will consist in the performance of all such judicial acts as will be necessary to the effective service, as per No. III., to be rendered.

Demand-Paper C.

Demand criminative,—Offence, case and suit, penal, and publico-private.

I. Pursuer, with description and means of intercourse, as before.

II. Effective service demanded:—

i. By the individual wronged,—satisfaction, to wit—1. The restitution of an article of property, furtively taken; 2. Money, in compensation for the loss, and vexation and expense occasioned by this pursuit.

ii. By the government advocate,—the service that will be rendered to the public, by the defendant’s being made to suffer the appropriate punishment; to wit, by the tendency of such punishment to restrain others from the commission of the like offences.

III. Collative law invoked,—the law by which, for theft, a man is rendered as above, satisfactionally, and moreover punitionally responsible.

IV. Collative fact alleged,—the act of theft, whereby the article was stolen by the proposed defendant.

V. Defendant,—A. L, inmate of the habitation No. 4, in Cross Street, in the town of Woolton, in this subdistrict, labourer.

VI. Evidence,—personal. The statement ready to be declared by me the pursuer, who saw the act of theft committed by proposed defendant, and who, having prehended him, have brought him hither.

VII. Counter-evidence,—none. Neither the proposed defendant nor any other person can, to my knowledge or belief, allege with truth, anything in contradiction to No. IV.

VIII. Ablative facts, none. No fact whatever, can in the character of an ablative fact, apply to this case, unless where (with reference to punishment,) evidence of one codelinquent may have been offered, with or without reward, for the discovery of another or others.

IX. Counter-demand. None applies to this case.

X. Judicial service. This will have two branches, correspondent to those of the demand:—

1. Service to the individual wronged, by causing the stolen goods to be restored to him by the theif, together with money obtained by the loan or sale of any such property, immoveable or moveable, as he may happen to have, in compensation for the private wrong, as above; to wit, by the several appropriate judicial mandates.

2. Service rendered to the public, by the issuing of any such incarceration or other punitional mandate, by the execution of which the imprisonment or other punishment may be inflicted.

Of the case where the demand is in its nature invariable, examples are as follows:—

1. Subject-matter of the demand,—the entire property of this or that individual thing moveable—as a beast, or article of furniture, &c.

2. Or of a thing immoveable—as a house with the appurtenances, a piece of land, &c.

Of the case where the subject-matter of demand is in its nature variable, examples are—all cases in which money is demanded in compensation for wrong sustained.

Demand-Paper D.

The demand either criminative or inculpative. Offence, suit and case, penal and purely public.

Heads under which the matter of a pursuer’s demand is to be stated, for the purpose of the judge’s determination whether to call upon any person, in the character of a proposed defendant, to comply with the demand or to contest it:—

I. Effective service demanded. This is the service which, in the event of his being proved guilty, will be rendered to the public, by the defendant’s being subjected to the punishment incurred by the collative fact No. III. in virtue of the collative law No. II.

II. Collative portion of law relied on. This will be the portion by which the character of an offence is given to a sort of act, in which the individual act charged upon the proposed defendant, as constituting the correspondent collative fact, is comprehended. It is termed collative, in respect of its being regarded as conferring on the pursuer, in behalf of the public, the right to the effective service demanded, as per No. 1.

III. Collative fact alleged.

This will be an individual act, charged upon the proposed defendant, as comprehended Edition: current; Page: [69] in one of the sorts of acts to which the character of offences is given by the collative law, No. II.

Collative with relation to the pursuer’s title to demand the effective service as above demanded by him,—it will, with relation to the burthen imposed upon the defendant by the obligation of rendering that same service, be onerative.

IV. Proposed defendant or defendants, with their several descriptions, as far as known or believed, together with the means of intercourse with them respectively, for the purpose of the suit, under their several and respective heads.

V. Sources of the evidence looked to, for the proof of the collative fact alleged as per No. III.; to wit, such persons, together with such writings, and such other things, if any, as the pursuer looks to in that character for support to his demand. The evidence itself will remain to be elicited at the hearing from those its several sources.

VI. Ablative facts negatived. Of any adequate ablative fact, the effect will be, in every case, to take away any right conferred by a collative fact. The affirmance of the non-existence of all such ablative facts must therefore be exacted, as well as the affirmance of the existence of a collative fact, as per No. III., and thence of a right to the effective service demanded as per No. I.

Ablative with relation to the pursuer’s title to the service demanded by him, these facts will, with relation to the burthen imposed on the defendant by the obligation of rendering that same service, be exonerative.

In the case of a criminal offence, collative circumstances will be—the several inculpative, criminative, and aggravative circumstances, belonging to the description of the act: ablative, the several justificative, exemptive, and alleviative circumstances. For exact lists of all these several sorts of circumstances, see the Penal Code.

VII. Counter-evidence, if any, from what sources expected.

Counter-evidence is evidence either in disproof of a fact which, with reference to the pursuer’s demand, is a collative fact, as per No. III.; or in proof of a fact which, with reference to it, is an ablative fact, as per No. VI.

VIII. Judicial service demanded. This will consist in the performance of all such judicial acts as will be necessary to the causing the collative portion of law, as per No. II., to receive, at the charge of the defendant, its execution and effect; and thereby the effective service, as per No. I., to be rendered.

Demand-Paper E.

The demand either criminative or inculpative. Offence, suit and case, penal, and publice-private.

Heads under which the matter of a pursuer’s demand is to be stated, for the purpose of the judge’s determination whether to call upon any person, in the character of a proposed defendant, to comply with the demand or to contest it:—

I. Private pursuer or pursuers, who.

Heads under which entries are to be made in relation to each:—

1. Sex.—2. Condition in respect of marriage, viz. whether, i. Never married; ii. Widow or widower; iii. Married.—3. Age. Time of birth, if not exactly known, according to conjecture; if exactly known, year, month, and day of the month.—4. Birthplace, whether within or without the territory of the state; if within, mentioning the district, subdistrict, and bis-subdistrict.—5. Occupation or occupations: profit-seeking, if any, what; so, official.

II. Means of intercourse for the purpose of the suit.

Habitation to which a mandate, or other message from the judicatory, may be directed with assurance of its being received; the habitation being identified as per Election Code. On every change, the information under this head will have to receive a corresponding change.

III. Public pursuer, on behalf of the public—the government advocate.

IV. Effective services demanded at the charge of the proposed defendant.

1. By the pursuer, as being the individual wronged,—satisfaction; to wit, for the damage occasioned to him by the wrongous act, which, with respect to the right to satisfaction, has become the collative fact, as per No. VI., having been constituted such by the collative portion of law, No. V.

For the several shapes in which, for damage received, from the several sorts of wrongous acts or offences, satisfaction will be obtainable, see the Penal Code, under the head of the several sorts of offences against individuals.

2. By the government advocate, in his quality of public pursuer,—the subjection of the defendant to the punishment incurred by this same act.

By the suffering produced by the infliction of the punishment, a service is regarded as being rendered to the public, by means of the tendency which the eventual fear of it has to prevent the commission of the like wrongous acts in future.

V. Collative portion of law relied on.

This will be the portion of law by which the character of an offence is given to a sort of act, in which the individual act charged upon the proposed defendant, as contributory to the corresponding collative fact, as per No. VI., is comprehended. It is termed collative, in respect of its conferring on the respective pursuers, as per Nos. I. and III., Edition: current; Page: [70] the right to the respective services, as per No. IV.

VI. Collative fact alleged.

This will be an individual act, belonging to one of the sorts of wrongous acts spoken of under No. IV., and as being constituted offences by the collative portion of law, as per No. V.

Collative with relation to the title of the pursuers to the service, respectively demanded by them,—it will, with relation to the burthen imposed on the defendant by the obligation of rendering these same services, be onerative.

VII. Proposed defendant or defendants, with their several descriptions, as far as known or believed, together with the several means of intercourse with them respectively for the purpose of the suit, under the several heads in No. I. and II. mentioned.

VIII. Evidence looked to, in proof of the collative fact, as per No. VI.

Under this head will not be to be entered on this paper anything besides the sources of the evidence known, or supposed to be obtainable; to wit, such persons, together with such writings, and such other things, if any, as the pursuer looks to in that character for support to his demand.

The evidence itself will remain to be elicited at the hearing from those its several sources.

Notes to Demand-Paper A.

[Sources of Evidence.] On the evidence which will have to be adduced, will depend the belief of the judge in affirmance of the existence of the collative fact or facts, of which the applicant’s title, on the ground of fact, to the services demanded by him, is composed. In relation to this same evidence, among the questions which, in that view, the pursuer will have had to put to himself, and whereby, in so far as he has failed so to put them to himself, the judge will have to put them, are the following:—

1. Questions as to personal evidence. What person or persons are looked to, as able and willing, or capable of being lawfully made willing, in quality of testifier, to prove the existence of the collative fact or facts? In particular—1. The applicant or applicants? 2. The proposed defendant or defendants? 3. Any other person or persons? or any mixed assemblage, composed out of the three sorts of testifiers, whereof the two first will in such case be litigant, the others extraneous, testifiers or narrating witnesses?

2. Questions as to real evidence,—to wit, as to any state of things, unmoveable or moveable, to which it may happen to be capable of operating in the character of evidence, or proof, or explanation of a collative fact. The things, what and where; present possessors or keepers, who? In particular, the applicant or applicants—defendant or defendants—or third persons, as above? Note that, in respect of any appearance his body exhibits, a person may, as well as a thing, constitute a source of real evidence: a person, for example, on whose body the mark of a wound or bruise is visible.

3. Questions as to written evidence. Written evidence is a sort of compound evidence, composed of personal and real. To the questions, Who the persons are of whose discourse the writing is composed? will accordingly be to be added the question, Who the persons are in whose possession or keeping the portions of discourse in question are.

Of this note on the subject of evidence, the matter will be seen to apply, not less to the Demand Paper A, than to all the several others.

[Ablative facts.] By some one article in the list of the facts constituted collative facts with relation to the right or title of a pursuer (standing in the individual situation of the pursuer in question) to receive the services hereby demanded, must such his right or title have been conferred: by any one article in the correspondent list of ablative facts, it may have been taken away. Therefore, of all such ablative facts, the existence must of necessity be negatived by him.

Case 1. Suit simply requisitive.

Of the proprietor of a mass of property, the death operates as a collative fact in favour of each of his postobit successors: as a collative fact, to wit, with relation to the right to the service rendered by the judge, by making a division of the mass among such successor and his co-interessees, and thereupon giving to him his share. Examples of an ablative fact are—1. A release by any one such co-interessee in favour of the rest, or any one of them; 2. On the supposition of the deceased’s having a correspondent right, exercise given by him to any ablative power, divesting this or that one of them of his right to any such share.

Notes to Demand-Paper B.

[Inculpative, but not criminative.] In this case will require to be included the case which, in Rome-bred law in general, and in Bonaparte’s Civil Code in particular, is styled that of a Quasi-delictum—Quasi-délit, Cod. Civ. L. III. Tit. IV. Ch. II. Art. 1382 to 1386, p. 217. This is the case where, without any default of his own, a person is rendered responsible for damage—having for its efficient instrument some person for whom, or some thing for which, it is in such case thought fit to render him responsible: the person regarded, as being in some sort in his power, and the thing completely so.

In this case, though it may be that by no Edition: current; Page: [71] care on his part could the damage have been prevented, yet after the damage had taken place, he might have made or tendered compensation for it; and in this way it is, that though not criminal, his conduct may, perhaps not unreasonably, have been deemed culpable.

Under English law, the demand in a case of this sort is what is called an action on the case.

[Effective Service.] Warning against excess in the quantity or value of the effective service demanded.

1. Whatsoever, in a case of this sort, be the subject-matter of the demand, it will be for the joint care of the pursuer and the judge so to adjust the description given of it, that in case of non-compliance, non-attendance, and non-reparation on the part of the defendant, an execution-ordering mandate issued by the judge, may, without other description than what is so agreed upon, suffice to put the pursuer in possession of it. If for want of sufficient information respecting the facts belonging to the case, the pursuer cannot take upon him to fix the amount, let him write in the appropriate space the words, “not yet ascertainable: remains to be ascertained from the evidence.

2. If, although the demand be, in respect of the collative fact, well grounded, the amount of the subject-matter demanded is, in respect of quantity or assigned value, manifestly excessive, the pursuer will be compensationally and punitionally responsible, in consideration of and according to the amount of the excess: the demand being to this amount ungrounded, and the exaction of the service having the effect of oppression and extortion.

3. By appropriate interrogatories, it will be the care of the judge to bring the statement respecting quantity and value to such a degree of correctness as may warrant his giving possession to the demandant, in the event of non-compliance on the part of the defendant, after an appropriate mandate received by him.

4. From the defendant’s counter-statement, should any ensue, it will appear what is the object of his contestation: whether it is the applicability of the alleged collative fact, or only the quantity or value assigned to the subject-matter of the demand.

[Counter-Evidence, if any.] The pursuer,—does he know of any—can he think of any evidence, the tendency of which may, either in his own opinion, or, as he believes, in that of a defendant, be to weaken the opinion supported by the evidence adduced by himself, as above?

If any such counter-evidence exists, the earlier the mention of it is exacted, the better—the better for the parties on both sides. By the requisition thus made of it, the eyes of the pursuer are thus of necessity turned to the state of the case as it must have presented itself to the other side; and by the comprehensive view thus taken, the ulterior vexation and expense of the suit may be saved to himself, as well as the whole of it to the defendant, after being thus interrogated.

If, knowing of any such counter-evidence, he omits to furnish indication of it, the omission will be circumstantial evidence of evil consciousness; and, in addition to other evidence, will of itself constitute sufficient ground for a dismissal of his demand: and it may moreover be punishable in the character of a separate and substantive offence; to wit, falsehood, mendacious or temeracious, as the case may be.

To counter-evidence, apply of course the same distinctions as those which as above have place in the case of evidence.

The facts to which the counter-evidence applies, may as well be those which, with relation to the pursuer’s title, bear the relation of ablative facts, as those which bear to it the relation of collative facts. If they are collative facts, the tendency of it will be, either to disprove in a direct way the existence of them, or to cause to be regarded as unreasonable the inference deduced in affirmance of them from the evidence on that side: if ablative facts, the tendency of it will be to prove the existence of those same ablative facts.

[Counter-demand, if any.] Reasons for inquiry under this head, are the same as in case of counter-evidence. Sub-heads for inquiry, the same as in the case of the demand, as above.

[Judicial Service.] Under this head will be comprised whatsoever chain of operations may be necessary to be performed by the judge, ere the effective service, or some succedaneum to it can have been rendered to the pursuer. These operations, or elementary judicial services, as they may be called, will be the result of the exercise given to the several distinguishable functions brought to view in the Constitutional Code, Chapter XII. Judiciary, Section 9, Elementary Functions;—the last link in the chain being constituted by the exercise given to the imperative function, by means of the mandate or mandates by which execution and effect is given to that portion of the law, which the pursuer’s demand has in this case for its ground. To bring to view these operations, in all the varieties of which they are susceptible, will be the occupation of the remainder of this same Procedure Code.

[Ablative Facts.] In the case of a wrong,—an inculpative fact on the part of the proposed defendant, (thence a collative fact, with relation to the pursuer’s right or title to satisfaction at his charge), is an act of the sort Edition: current; Page: [72] of these which, by the law in question, are constituted offences, unless accompanied by some one of the circumstances included in a correspondent list of justificative or exemptive circumstances. If any such ablative fact has place, his title to the service in question has no place. If of any such ablative fact the existence be known to him, he is in a state of evil consciousness with relation to his demand—consciousness of the invalidity of it, and of the groundlessness of the vexation he is seeking to impose on the defendant; and this state of evil consciousness as to the application he is making, involves in it an act of insincerity, for which he may as reasonably and beneficially be punished, as for mendacious evidence in relation to any external and physical fact. As to this matter, see what is said in relation to counter-evidence.

[Proposed Defendant,] to wit, the person at whose charge the services, effective and judicial, are demanded—who would be the sufferer by their being rendered—and who accordingly, by a corresponding interest, is urged to oppose their being rendered. To the pursuer, this person may be either known or unknown: if unknown, the application cannot as yet be anything but informative; contentious it cannot be termed, unless and until, by means of appropriate arrangements taken by the judge for the discovery of the person, a contestation with him is commended. The case in which he is thus as yet unknown, will most commonly be a penal one, that being the sort of case in which, with a degree of force correspondent to the magnitude of the suffering produced by the obligation of rendering satisfaction—or by the punishment liable to be undergone, or by both as the case may be—his interest will be urging him to keep himself from being known. By accident, however, this latentcy may have place in a case where the suit is simply requisitive, as to which, see Demand Paper A; as also, in any case, whether inculpative or not, in which, by the contemplation of the inconvenience attached to the fulfilment of the obligation endeavoured to be imposed upon him, he is prompted to evade it.

Note to Demand-Paper D.

[Evidence.] In a penal case, whether the offence and the species of suit are, as here, purely public, or whether they are publico-private as in the case of the Demand Paper E, the evidence will commonly have three distinguishable subject-matters; to wit—1. The matter of fact, or state of things, regarded as productive, or tending to be productive of mischief, and supposed to have been the result of the act of some human agent; 2. The nature of that same act; 3. The personality of that same agent.

Of these three distinguishable subject-matters of knowledge and evidence, the first may be known, while the second and third are as yet unknown: of damage produced by conflagration, the existence may, for example, be known, when, as yet, it is not known whether human agency bore any part in the production of it. So again, the damage being known, what may also be known is, that human agency, the act of some person, had part in the production of it, while as yet it is not known who that person is.

In Rome-bred law, the state of things regarded as fraught with mischief, with the circumstance of its having had human agency for its cause, constitute together what is called the corpus delicit—in French, corps du délit, the body of the offence; and are frequently spoken of as composing a subject of evidence and investigation, distinct from the consideration of the personality of the supposed criminal, or culpable agent.

This distinction may also have place, in several modifications of the case, in which, as in Demand Paper B, the suit, whether inculpative or not, is not criminative.

§ 5.: Pursuer’s demand, how amendable.

As in this stage, so in any subsequent one, the ground of the demand, as stated by the pursuer to the defendant, may at any time be changed, and so toties quoties. At this stage it is producible in the case where, at the time of his application, the pursuer adduces and has obtained the examination of an extraneous witness.

If the case be such, that the pursuer in his situation might have foreseen the superiority of aptitude on the part of the second, or say amended ground, in comparison of the original ground, he will be compensationally responsible to the defendant for any disadvantage by the change produced to him in respect of any of the ends of justice: if not, the burthen must rest upon the defendant uncompensated.

Of amendments of this sort, the need has its principal source in the variations which, with or without evil consciousness, or even temerity, may have place, and are continually having place, between any account that may have been given by a witness to a pursuer extrajudically, and the account given by the same witness judicially, while under examination.

Various are the causes by which such variance is capable of having been produced, such as—

1. Difference in respect of the sense of responsibility between the one occasion and the other. On the extrajudicial occasion, responsibility in respect of verity, none; and on the other occasion, the responsibility maximized. Edition: current; Page: [73] This cause is the most powerfully operative, and accordingly the most obvious.

2. Difference between the state of the memory on the one occasion, as compared with the other. Here comes in the operation of two antagonizing causes. On the first occasion, the recollection being in its freshest state, is naturally more clear, correct, and vivid. But on the second occasion, the demand for the operation of recollection having intervened, the attention bestowed will naturally have been more intense, and by this means any deficiency, which for want of attention may have had place in the statement made on the first occasion, may have received supply.

Here, by the bye, may be seen how vast the importance of the avoidance of delay may be, and commonly will be, in reference to the direct, as well as to the collateral ends of justice. By every day of unnecessary delay, addition is made to the probability of ill-success to him who is on the right side; to the probability of good success, to him who is on the wrong side.

The points in relation to which the need of such amendment may have place, are the following:—

1. Ground of the demand, in point of law, as per Table of rights and Table of wrongs, and the chapter and section of the code to which the case belongs.

2. Place at which the fact in question happened.

3. Time at which the fact in question happened—at which the state of things in question had place—at which the act in question, positive or negative, was performed.

§ 6.: Commencement of suits—English practice.

The establishment of eventual forthcomingness and responsibility, on the part of applicants, will be seen to be a business of no small intricacy and difficulty, when provided for, as it must be, on an all-comprehensive scale. It is a business for which, under the current systems, there is no demand, and which, to those whose whole experience and attention have been confined to those systems, will be apt to appear superfluous, and no less trifling than troublesome. The defects of those systems under this head have two causes, varying according to the nature of the case:—

If the suit be a non-penal one, no person is received to state his case in his own person, unless it be with a professional assistant at his elbow: in England, in particular, matters are so ordered, that while, by the instrumentality of a professional assistant, any person may institute a suit of this kind against any person for anything, or for nothing at all,—no person, even if by miracle he could, without that instrumentality, contrive to institute any such suit, could even by any such miracle institute it in the presence of the judge. In England, in particular, the judge keeps open a shop, at which, on payment of a fixed sum, without so much as supposing himself to be in the right, any man may purchase the assistance of the judge, towards ruining any other man; the judge by purposed ignorance, escaping from all responsibility for the misery to which he gives birth, and from which he profits. As the party cannot thus buy his chance for justice, otherwise than by the hand of a professional assistant, the lawyer will not lend his assistance, unless, in his view of the matter, he has sufficient security for the costs, his own pay included; and thus all such trouble as that of inquiring into the circumstances of customers is saved to the judge.

To lawyers of all sorts and sizes, thus is convenience maximized. To non-lawyers the consequence is, that he who has not wherewithal to pay for a ticket in the justice lottery, in the character of plaintiff, goes to a certainty without justice; and in this situation are at least nine-tenths of the whole population; while, in the character of defendant, he who cannot pay the costs of defence, is, in every instance, between plaintiff and lawyers, consigned to complete and certain ruin, without possibility of escape. The judge, having taken care to know nothing about the matter, being thus as completely guiltless of the misery he has produced, as a murderer would be of murder, by shutting his eyes while the bullet was doing its office.

In a penal case, the matter stands on a different footing. Judges themselves could not save themselves from having their houses broken open, if the applicants were not received, as indiscriminately as here proposed, to give information respecting the most highly punishable class of criminal offences. But here, too, the judge of the highest rank make, his escape from responsibility and trouble in every shape: the troublesome part of the business is committed to an underling, who may be occupied about it for days, while a small part of the day is all that is occupied by the great judge, matters having been brought into preparation for that purpose.

Meantime, not small is the degree of convenience provided for the underlings. If the individual accused by the information given, is one whom nobody knows,—the information being upon oath, the oath is sufficient warrant for immediate incarceration, without any such trouble as that of an inquiry into the trust-worthiness of the informant.

But now, suppose the individual accused to be one whom everybody knows. In this case, there is no degree of solicitude but what will naturally be employed in the inquiry into the trustworthiness of the informant.

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§ 7.: Judication without audition, Anglicé—its absurdity.

If, without knowing or hearing a word about the disorder of the patient, the physician were to pour down his throat a dose of physic, or the surgeon lay hold of him and bleed him, they would do exactly what, in cases called civil ones, the legislature and the judge do, in the first instance, by the defendant at the commencement of a suit under English law. What they have never cared about, is how much the party will suffer from what is done: what they have always cared about, and what is all which at any time they have cared about, is the money and the power: the money they thus receive, and the power they thus exercise.

Under the English system, in those judicatories which are called common-law courts, in contradistinction to equity courts,—if the defendant fails as to the contesting the demand in proper form, the plaintiff obtains in his favour what is called a judgment; but a judgment on which, without a further proceeding, under which the evidence belonging to the case is elicited, nothing can be done. This proceeding is performed in virtue of what is called a writ of inquiry: the judge being, not the judge of the judicatory in which the suit was begun, but a subordinate functionary called the sheriff, by whom, had the inquiry been made in the presence and under the direction of the judge, simple execution would have been given to the judgment then pronounced.

This lot of factitious delay, vexation, and expense, has for its cause what may be called the judicial-ignorance-maximizing principle, or thought-saving principle,—that principle which has for its object the giving to the judge his profit out of the suit, with the least expense possible on his part, in the articles of time, labour, and thought. Of the number of the suits of which in a twelvemonth the judge by his signature pretends to have taken cognizance, only in the case of some small proportion has he, from first to last, known anything at all about the matter; and thus, in the great majority of cases, the money exacted by the judges (for five is the number of those employed in doing nothing or worse than nothing) is so much obtained on false pretences: an offence punished in the case of mean evil doers, and punished by those same judges, with what is called transportation for seven years,—that is to say, banishment and confinement to hard labour for that time.

Go to a common-law judicatory, you thus get decision without thought and without effect. Go to an equity judicatory, you get thought, or at least prate, without decision: prate in plenty, with years of delay between prate and prate. Thus has it been now for more than twenty years past, ever since the country has been afflicted by Lord Eldon.


§ 1.: Modes or shapes.

Complication will be here presenting itself in appalling abundance. The best remedy, imperfect as it cannot but be,—carelessness would join with unscrupulous hostility in denouncing as the cause of the disease.

Parties, each at the same time, pursuer and defendant, one or more in every judicial territory: to each party a swarm of witnesses. Such is not only the conceivable but possible nature of the disease: happily, it is not a frequently exemplified one.

As to the here proposed system, so far from creating additional evil in the shape of misdecision, delay, expense, or vexation, it provides new and manifestly efficacious securities against evil in all these several shapes. These are—to wit 1. The universally-extending responsibility in case of falsehood; 2. The universal exposure to subsidiary oral, after epistolary examination.

To English practice, neither do these, any more than any other class of cases, ever present the smallest difficulty. Be the gordian knots ever so complicated and ever so numerous, in the hand of chicane is a sword, by which difficulty in every shape is cut through without difficulty. Whatsoever statements, demandative or defensive—whatsoever evidence the nature of each case calls for—all are elicited in one or other of the two most deceptious, most untrustworthy modes that human ingenuity could have divined:—affidavit evidence and secretly-elicited responsion to a system of interrogatories framed in the dark; and epistolary responsion, incapable of being followed and purified by oral interrogation;—modes having for their object the sinister emolument of their contrivers, and for their instrument a galaxy of perjuries. When the division of the sweets commences, in the place of creditors, come in the two classes of self-created harpies, the judge in all his forms, and his instrument and dependant the professional lawyer in all his forms. The filth of the harpy finds, in the mixture of mendacity and absurdity poured forth from their lips and from their pens, its not unworthy representative: the money they fly off with—the defiled paper and parchment they leave in lieu of it.

As to parties, witnesses, and their sufferings, the same sort and degree of regard do they find in the breast of the authors, as do those of the negro in that of the planter—those of the Hindoo in that of his English proprietor—those of the Irish Catholic in Edition: current; Page: [75] that of the Orangeman—those of the non-religionist and rival religionist in the imagination of the religionist. Sufferings, which a man neither feels nor sees, cannot be too great: as to those which are seen by him, by some they are seen with pain, by others with indifference, by others again with delight.

Where, having nothing to gain by deviation from any of the ends of justice—nothing to gain by misdecision, delay, vexation, and expense, and at the same time everything to suffer from it at the hands of the legal and public-opinion tribunals, with the light of publicity shining in full splendour upon his every word and action,—it were strange indeed if more were not done by the judge towards lessening the evils opposite to the ends of justice, than if motives for the endeavour to lessen them were altogether wanting;—still stranger if more were not done by him than can reasonably be expected to be done by judges whose interest it being (for such their predecessors have made it) to maximize the mass of those same evils, it has of course been a constant object of their endeavour,—the end in view of all their operations.

Thus circumstanced, under the English system, have been the whole hierarchy of the judges of the higher order: subject only to here and there a slight and narrow amendment at the hands of the acknowledged legislature (of which they were all along themselves the oracles,) the system of procedure has always been under their direction, in the double capacity of effective legislators and judges: judges applying the law—that very law which, on pretence of declaring it, for this is the cant word, their predecessors and they themselves have all along used,—declaring that to have existence, which even in and by this very declaration, is declared not to have been made by anybody. Not by the legislature: true; and thus much must be allowed, though it is they who say it. But, according to them, neither is it by themselves that it is or has been made; though, if not by themselves, by whom else can it have been made?

In the whole system may be distinguished, for this purpose, three chief modes of procedure: the common-law civil, the common-law penal or criminal, and the equity mode. In no one of them (except for the purpose of lucrative contribution) is any real regard actually paid to the direct ends of justice: in no one of them, in the regulations established, is any regard so much as professed, or pretended to be paid, to the collateral ends of justice.

Bribe-taking, which is out of the question—bribe-taking is never practised, it not being safely practicable: not being imputed to them, how is it, it may be asked, that they are gainers by misdecision? The answer is,—in one vast class of cases, one gain they can make, and at all times have made—by favouring a party which it was their interest to favour—and that is, in causes in which government takes an interest in the side on which government is—that government of which they themselves are such actively efficient and highly interested members.

But as to the practice of misdecision, another interest they have, which, though not so manifest, is much more extensive in its application and operation than that just mentioned. This is, the effect of misdecision in the production of uncertainty. It is on the uncertainty that they depend, in a great measure, for the whole assemblage of their insincere, their malâ fide customers, so far as regards the question of law. Were the state of the law known to all, no one, unless on the ground of knowingly false evidence, would venture to institute an illegal claim, or defend himself against a legal one. But having so arranged matters, that he who is rich enough to pay the price is sure of success against all those whose pecuniary means are to a certain degree inferior to his own, the greater the number of chances of success which, by the adjective law of their own creation, they have given to those against whom the substantive branch of the law has expressed itself, or has been thought to express itself, the greater the encouragement for them to engage in a groundless and unjust pursuit, or in a groundless and unjust defence, as the case may be.

This policy of theirs has, as it were, betrayed itself by an expression which could not be prevented from growing into use: this is that in which the ground of decision has been distinguished into two modes; decision according to the merits, and decision not according to the merits. Now as to these two, the expression in cases decided otherwise than upon the merits, may serve for indication of all the cases in which, either for an individual benefit in the shape of corruption, to the individual judge then deciding, or for the aggregate benefit of the profession,—misdecision has been exemplified—injustice knowingly and wilfully committed. Decision otherwise than on the grounds of the merits is, in other words, decision on technical grounds. The decision on technical grounds will, so long as it remains, remain a permanent and inexhaustible spring of safely commissable, and committed injustice: for the technical rule being palpably repugnant to justice, the judge at all times has for choice, the choice between adhering to the unjust rule, and so favouring the one side, or departing from the rule, and so favouring the other.

In the common-law mode, to wit, in the case of jury trial, all the witnesses on both Edition: current; Page: [76] sides are brought together at once, at the same hours on the same day, and thus the maximum of dispatch, it may be alleged, is secured. But supposing this to be the case in general, no advantage would be given by it over, and in comparison with, the here proposed mode. Why? Because, in every instance in which the end is really the end conducive to justice, it may, and naturally will, be employed in the here proposed mode; whereas, whenever that at present established mode is not conducive to, but opposite to, the ends of justice, be the opposition ever so strong, it cannot but be employed.

In the established mode, the interval of time between the commencement of the suit and the delivery of the evidence, must be that which is necessary to let in that piece of evidence, the elicitation of which will require the largest portion of time: and during the whole of this largest portion, all those pieces of evidence which might have been elicited in smaller portions of time, must remain unelicited. One consequence is, that the greater the portion of time, and the greater the number of witnesses whose testimony is requisite, the greater is the probability of the deperition of evidence: of a result, by which injustice may be inevitably and irremediably substituted to justice.

Effects and fruits, the causes of this regulation, many, for Judge and Co.: money obtained on some occasions, some of it on grounds which may be true or false as it happens; on others, by pretences which are constantly and certainly false. On some occasions, on application made, order for enlargement follows of course. In these cases, what is done for relief of the party, is done by Judge and Co. for money obtained by them on false pretences. The act pretended is an application made to the judge: of no such application, individually taken, does the judge ever hear: parties to the fraud, the attorney who instructs the barrister to make a motion—i. e. an application to the judge—and the barrister who pretends to have made it. By this fraud, 10s. 6d is gained by the barrister, somewhat less by the attorney; the barrister writing his name for the money, the attorney having previously written a few words more. By this fraud, which the suitor is made to pay for, he is saved from the burthen, whether of compensation or punishment, which otherwise would be imposed upon him by the judge; the judge, by the fear of that burthen which otherwise would to a certainty be imposed, extorting from the suitor the money thus thrown by him into the hands of these his partners.

In the judicatories which act under the name of equity, this union of fraud and extortion is at the same stage of the suit repeated once or twice, as a matter of course.

In one particular, all these modes agree: for every operation, by whomsoever performed, an allowance of time is fixed by general regulation. By this generality, a negative is thus put upon the very idea of having any regard to the convenience of any one individual on either side. In each individual suit, the chances are as an unlimited number to one, in favour of injustice, to the damage of one side or both: if it is too short, the party who is in the right has not time enough to do that which is necessary to the manifestation of his right; and here comes the injustice which is opposite to the direct ends of justice: if too long, i. e. longer than is necessary for the manifestation of his right, here, by the amount of the excess, comes delay—delay to the prejudice of the collateral ends of justice: and from delay comes vexation, with more or less probability of expense.

When on any special ground, true or false, more delay is desired, money in much greater abundance is extorted. An application to the judge is really made: evidence to support the allegation—a mass of written evidence, is tendered to his cognizance: the evidence is penned, not by the individual—him whose statement it contains—but by an attorney by whom it is licked into a form deemed suitable to the occasion and the purpose: along with this evidence, goes an account of it—a sort of comment on it, drawn up likewise by the attorney. This comment is called a brief, and is delivered to the advocate. The application thus made may be opposed by a counter-application from the other side, drawn up in the same manner; and thus, out of the belly of the principal suit, is bred an incidental one.

Even within the bounds of the kingdom of England, not to speak of united kingdoms and distant dependencies, the distance of the abode of the suitor from the judgment-seat, varying from a few feet to little less than three hundred miles,—from this circumstance may be formed a judgment what sort of regard in the establishment of these time-fixation rules, was paid to the convenience of the people in quality of suitors, and of what sort was the motive which in the establishment of them constituted the final, and thence the efficient cause.

The demands for postponement being throughout the process multiplied partly by nature, partly by ingenious industry, and under the name of vacation, vast intervals of relative inaction having been most impudently established—suits in unlimited abundance are thence to be crowded by regulation, into spaces of time incapable of holding them: suits are thus put off, from year to year, every interval being a gulf in which the fortunes Edition: current; Page: [77] of the least opulent of the contending parties is swallowed up: iniquity being triumphant in the person of the most opulent.

For the sowing of these regulations, the seed of which all the money was the fruit—the originally-looked-for and continually-gathered fruit—it was necessary to prepare the ground. The grand operation by which this preparation was effected, was the regulation by which the parties on both sides are in every possible case kept as far as possible excluded from the presence of the judge.

Suppose the applicant in his presence,—to the extent of his knowledge and belief, any matter which presents a demand for consideration for the purpose of the suit, may be extracted from him at that one hearing; and thus a plan of operations for the conclusion of the suit, with the greatest probability of rectitude of decision, and with the least delay, expense, and vexation, may to the best advantage be formed at this early stage, which by this means will in many instances be made the last stage, and in many more the last but one.

Here would have been the maximum of appropriate knowledge—of the knowledge of those things, the knowledge of which is necessary to justice. Shutting the door against this salutary knowledge, the contrivers of the system, by this one operation, flagitious and daring as it was, endowed themselves with that ignorance—that happy, because thenceforward necessity-begotten, and thence irreproachable ignorance—which presented an excuse and served them as a veil for all the depredation and oppression which was the fruit of it. For the exigencies of individuals no provision was thenceforward made. Why not made? Because the knowledge of them was not possible. And why not possible? Because, by these judges themselves, care so effectual had been taken so to order matters as to prevent it (and that so long as the system founded on in it lasted) from being possible.

§ 2.: Defence, how procurable.

Generally, the place of defendant’s accersition and examination will be the originating judicatory.

This, exceptions excepted, will be at applicant pursuer’s choice. But restrictions are necessary to prevent overloading.

Reason 1. Certainty of it being the most convenient to

1. Applicant.

2. Not certain its being less so to any one else.

But only in one can the suit be terminated. Thence, special preponderant inconvenience excepted, the best is the originative.

Sole reason for transfer, incidental or definitive, to a post originative judicatory,—diminution of delay, expense, and vexation, attendant on the accersitee's [Editor: ?] journey and demurrage.

From this the danger of misdecision would not be diminished but increased.

Causes of increase of delay, expense, and vexation in this case:—

1. No day for defendant’s next attendance could be appointed by the judge originative: for the first could not know when the second would have relative leisure.

2. No day, till in consequence of a correspondence between him and the judge post-originative.

3. No determinate information could be given to the pursuer, as to the time of defendant’s statement and testimony in this case.

Nevertheless power to judge originative to make transference, incidental or definitive, to a judge post-originative, for special reason, referring to delay, vexation, and expense.

When the party addressed is not adducted or accersed to the original judicatory, if oral statement or evidence is required (domiciliary or topographical excepted,) it must be at another, say a post-originative judicatory: pro tanto, here then will be transference.

Hence unavoidable addition to delay, vexation, and expense—especially in case of retromission.

Cause and measure of the increase: distance between the judicatories.

Cause of multiplication: multiplicity of persons accersible, whether defendants, copursuers, or witnesses.

Judge of the originative judicatory cannot make known the earliest time of relative leisure in another, as in his own judicatory, and not at all without previous correspondence.

For obtaining statement and evidence, where the parties are many: the most eligible mode, epistolary backed by subsidiary oral.

The subsidiary may be either—1. On the original inquiry; or, 2. Reserved for the recapitulary ditto.

The defendant not being at the time in question present in the judicatory, the epistolary is the only mode which, in the first instance, the nature of the case admits of; to wit, by missives sent to the defendant from the judge. Remains for consideration, in which mode the defendant shall, in the first instance, on receipt of such missive, address the judge. If in the oral mode, it will be by attendance at the judicatory.

Where the originating judicatory is the judicatory of all parties on both sides, the mode of subsequent judicial intercourse will be the oral mode.

The epistolary mode is the most conducive to the collateral ends of justice in the following cases:—

1. Expatriation; 2. Subsequent judicatory too distant for accersition to the originative.

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When a day is fixed for the defendant’s attendance at the judicatory,—required by the mandate in the meantime, if the time admit, will be—

1. A defendant’s response paper, promising attendance on the day prescribed, or making excuse as to the day, and offering attendance on another day therein mentioned.

2. A defence paper, in a form correspondent to that of the demand paper.

Evidence self-serving, or self-disserving, or both together, to be delivered in the epistolary mode, will at the same time be called for, or not, as to the judge may seem most conducive to the ends of justice.

Of the matter thereupon received from the defendant, communication will be made by the judge, if time admit, to the pursuer or pursuers, that on the mutual hearing, he or they may be better prepared.

Examples of the matter of the appropriate response at the maximum of simplicity, are—

1. Defendant’s acknowledgment or denial of a document purporting to be his, whether in his handwriting or not.

2. Ditto of a statement supposed to be orally uttered by him.

3. Ditto of the receipt of a missive.

4. Ditto of a death with circumstances, as per demand paper.

5. Ditto of a birth with circumstances, as per ditto.

§ 3.: Defendant’s attendance—its uses.

Of a defendant’s, personal attendance at the judgment-seat, among the purposes or uses are the following:—

I. Uses to the Pursuer’s side:

1. Furnishing appropriate confessorial evidence.

2. Furnishing indicative evidence of ditto.

3. Furnishing information of means of effective responsibility at his charge, satisfactional or punitional, or both, as the nature of the case requires and affords.

4. Furnishing means of co-enduring accessibility on his part for the purpose of the suit.

II. Uses to his the Defendant’s side:

1. Furnishing his own appropriate self-serving evidence, if he has any.

2. Furnishing indicative evidence as to expected extraneous appropriate evidence, expected to be in his favour, and obtaining mandates for the elicitation of it; to wit, either contesting the pursuer’s collative facts, or establishing facts which, with reference to his title, are ablative.

3. Furnishing the opportunity of applying counter-interrogation to the pursuer, in respect of his self-serving evidence.

4. Furnishing an opportunity of eliciting the pursuer’s response to his (the defendant’s) counter-demands, if any such he has: and his own self-serving evidence in support of them.

5. Furnishing to the defendant an opportunity of eliciting the evidence of the extraneous witnesses attending on his side, if any such there be.

6. So of counter-interrogating the pursuer’s extraneous witnesses, if any such there be.

III. Uses to both sides:

1. Furnishing to both the faculty of settling, for ulterior proceeding, the course most convenient to both.

2. Faculty of receiving and profiting by any such advice as, for their mutual benefit and that of the public, the judge may see occasion to give.

3. In particular, receiving from him any such information and advice as may guard them against the propensity and endeavours of professional assistance to add to the unavoidable expense, vexation, and delay, factitious ditto, for the sake of the profit upon the expense.

4. Obtaining relevant testimony, without being dependent for it on the good will of the percipient witnesses, or other persons capable of yielding it.

Note here, how favourable this means of mutual explanation is to the interests and desires of the sincere—how adverse to those of the insincere suitor, on both sides; thence how adverse to the sinister interest of professional advisers and assistants, by proportionally depriving them of the custom of the persons who would otherwise be insincere litigants.

Hence the cause why, in all systems of procedure, more or less, endeavours so anxious and successful have been employed in keeping the parties from coming into the presence of each other, together with that of the judge.

§ 4.: Consideranda.

To be considered at this stage as to communication for the judicial purpose, are—Ends to be aimed at, and the nature of the suit.

1. Persons to be communicated with.

2. Purposes for which they may be respectively to be communicated with.

3. Communicaters or addressers,—persons by whom, for those purposes respectively, communication may require to be made.

4. Addressees,—persons to whom the several communications may respectively require to be made.

5. Operations which on the occasion of the several communications may require to be performed for those several purposes.

6. Instruments, or say written forms, which for the performance of those several operations, may respectively require to be issued.

7. Correspondent considerations in regard to things moveable and immoveable.

Persons who, for judicial purposes, at this stage may need to be communicated with:—

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1. Pursuer’s co-interessee or co-interessees, on his side as proposed co-pursuers.

2. Proposed witness or witnesses on pursuer’s side.

3. Proposed defendant or defendants.

Purposes as to proposed co-pursuers:—

1. Delivery of their demand paper.

2. Settling with each other the proposed purport and tenor of those their demands.

3. Settling with one another and the judge what next course shall be taken as to communication with proposed pursuer’s witnesses and defendants.

4. Settling who to apply to as proposed witnesses.

5. Settling the most convenient mode of communicating with them for that purpose.

6. Settling whether, as to the defendant, any and what means of preliminary security are necessary.

Note, that of any such co-interessee and proposed co-pursuer, the existence is matter of accident, and in most instances will not have place.

Proposed witness, viz. such only whose capacity of testifying is supposed known to original pursuer or co-pursuers.


1. Sending to him a witness’s attendance mandate; or else,

2. A witness-examination mandate.

3. Receiving from him in either case a witness’s compliance announcing response.

4. Or a witness’s excuse paper; or,

5. A witness’s testificative response; or in case of attendance,

6. Receiving him, and examining him on his attendance.

7. In case of necessity, causing him to be prehended and adduced for the purpose of examination; to wit, by a witness’s adduction mandate, delivered or sent to an appropriate functionary—a prehender.

By proposed witness, understand also holder of written or other real evidence, required to be adduced or transmitted.

Proposed defendant—say one.


1. Sending to him a proposed defendant’s compliance, or defence and attendance-requiring mandate.

2. Receiving from him a compliance-announcing response; or,

3. A defence paper, with an attendance-announcing response; or,

4. A defendant’s excuse paper.

5. Receiving and examining him on his attendance.

6. In case of his being examined in the epistolary mode—in addition to his defence paper, his defendant’s testification paper.

7. In case of necessity, causing him to be prehended and adducted for the purpose of examination by a defendant’s adduction mandate, delivered or sent to a prehender, as above.

Whether it be the effect to be produced and the operation to be performed, ultimate execution to be given to the laws, and service demanded thereby rendered—preliminary security to be afforded—counter-security to be afforded—testimony to be elicited;—and for all these several purposes, intercourse with justiciables and judicial functionaries commenced and carried on,—the endeavour of the judge will be to combine with the maximum of efficiency and the maximum of promptitude (or say the minimum of delay,) the minimum of vexation or afflictiveness, including the minimum of vexatious expense.

Cæteris paribus, that mode of operation which is most prompt will be least afflictive. To the pursuer’s side it will manifestly be most beneficial. So likewise to the defendant’s side, except in so far as by delay in respect of the rendering the service due, he is served at the expense of the pursuer and of the interest of the public in respect of justice.

Middle agency the judge will take care not to employ without necessity. By every middle agent unnecessarily employed, chance of ultimate failure is increased—delay certainly increased—and either vexation to the agent, or expense in satisfaction for it, increased.

In particular, where, to the loss of any person—a defendant for example—property is to be transferred, he will make graphical transfer of it with his own hand, without compelling the defendant to be instrumental in the transference or conveyance. Compulsion may be necessary to produce disclosure: it cannot be to effect graphical transfer.

Of the options which the judge will thus have continually to make, he will all along give the reasons. In particular, where of divers courses for efficiency, he holds himself obliged to employ the most afflictive.

Having obtained from the applicant the appropriate grounds,—before the termination of the first hearing, the judge will have determined, as far as may be, and communicated to the applicant the particulars of the ulterior course.

In case of retention, he will in the first case determine whether any and what preliminary measures of security are requisite to be taken, according to the nature of the suit, for securing execution and effect to the law.

At the same time, whether then to commence intercourse with the defendant; or antecedently, whether with any and which of the persons following:—

1. If the applicant be a proxy, the principal or principals.

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2. Whether a proxy or the principal, any and what co-pursuer or co-pursuers.

3. Any extraneous witness or witnesses, for the purpose of eliciting their respective evidences.

With the defendant and defendants (without waiting for responsion from any other persons, or service from them in any other shape as above,) he will, bating special reason to the contrary, commence holding intercourse.

No such intercourse will be commenced, unless from the applicant’s statement, made under responsibility, the judge is satisfied that, taking it for correct, he will be justified in the exaction of the service demanded, if neither compliance with the demand nor response contesting the justice of it be received, after adequate evidence of the receipt of the mandate to that effect.

On this ground, with or without preliminary measures of security as above, he will address himself to the defendant or defendants, commanding either immediate reddition of the service demanded, or responsion at the judicatory or elsewhere, by means of an appropriate defence paper contesting the justice of the demand.


§ 1.: Suit, what.

A suit (meaning a suit at law) is a course of action commenced on application made to some judge, requesting his efficient service for the giving execution and effect (contestation notwithstanding) to some determinate portion of law.

By every suit, a person constitutes himself pursuer; another, in case of contestation, defendant: thence, sides at the least two, pursuers and defendants in any number.

By every suit, two services are requested, principal and instrumentary: principal by the defendant; instrumentary by the judge, in causing the principal to be rendered.

Active or passive may be the principal, the defendant’s service:—active, where for the rendering it, motion on the part of the defendant is necessary; as in paying money, performing manual labour: passive, as in suffering money or goods to be taken out of his possession, or his body to be imprisoned.

Active is always the instrumentary, the judge’s service. In it are comprised of course as elementary services, all those necessary to the removal of obstructions to the rendering of the principal service—all such services as well on the part of the judge, as of all persons who, for purposes of this kind, are by law under his command.

§ 2.: Sources of distinction.

From divers sources of distinction, divers sorts of suits, viz.—

1. Manner in which defendant may be affected: suits non-penal and penal.

3. Multitude of the objects brought to view: suits simple and complex.

3. Duration: suits summary and chronical.

4. Dependence or independence as to another suit: suits original and excretitious.

5. Number of sides complete as above, or incomplete, two or one only: suits ambolateral and unilateral; unilateral, viz. either

1. Without pursuer, or

2. Without defendant.

The judge supplying the place of each.

§ 3.: Non-penal and penal.

Suit non-penal* has not for its object the producing on defendant’s part, suffering other than that inseparable from the obligation of rendering the service demanded; that service not consisting in suffering, for the purpose of punishment. Suit penal has for its object the producing the service rendered by suffering punishment.

Suit, when penal, is either purely public, or publico-private: purely public, where, no wrong being done to one individual more than another, none has need of the service rendered by satisfaction for special wrong: publico-private, where, wrong having been done to an individual, or to a class less than the whole community, service by satisfaction is needed and demanded accordingly. Of the service rendered by suffering punishment, no individual having more need than another, the pursuer, if any, must be a government agent, say a government advocate.

In this case, the satisfaction is demanded by the private, the punishment by the public, pursuer.

As to the government advocate, see Constitutional Code, Chapter XII. Judiciary collectively.

§ 4.: Simple and complex.

Suits simple and complex. In the case of complexity, for the standard of comparison, take the most simple conceivable.

Exemplification in the case of a non-penal suit:—

1. Subject-matter,—one; say a horse, claimed by pursuer of defendant.

2. Pursuer, one.

3. Defendant, one.

4. Evidence on pursuer’s side,—witness one, the pursuer.

5. On defendant’s side,—witness one, the defendant.

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In the case of a penal suit—

1. Subject-matter, a horse as above; but now alleged to have been stolen.

2. Pursuer one, say the government advocate.

3. Defendant one, the alleged thief.

4. Evidence on the pursuer’s side,—witness one, as before, the pursuer.

5. Evidence on the defendant’s side,—witness one, the defendant.

Examples of sources of complexity:—

In a non-penal case—

1. Multitude of pursuers.

2. Multitude of defendants.

3. Multitude of pursuer’s evidences.

4. Multitude of defendant’s evidences.

5. Complexity of the subject-matter of demand.

6. Multitude of elementary services comprised in the nature of the principal service demanded; as in the case of an account with many items.

7. Multitude of elementary collative facts, necessary to constitute one effective title.

8. Multitude of counter-demands or set-offs on the defendant’s side.

In a penal case—

1. Multitude of defendants, i. e. alleged co-offenders, in respect of conjugated mode of delinquency; to wit, instigation, effectuation, assistance, subsequential protection.

2. Multitude of offences naturally concatenated on the occasion of the same forbidden design; acts of preparation, attempt, consummation; as in rebellion, sedition, riot, smuggling.

Examples of cases in which persons more than one may stand connected in interest, on one side or the other; in particular, on the pursuer’s side:—

I. Husband and wife.

II. Principal and trustee; to wit, in the various characters of

1. Guardian of a non-adult.

2. Guardian of a person insane.

3. Steward for residence or property.

4. Bailiff for property.

5. Commercial agent.

6. Trustee for a mass of property, placed in trust for some particular purpose.

III. Persons respectively claiming, or possessing an official situation, non-ecclesiastical or ecclesiastical, in the characters of locator (patron,) locatee (nominee,) incumbent, or other occupant.

IV. Executor or executors, or administrator or administrators to a party deceased.

V. Partners in a mass of manufacturing or trading stock, or in the exercise of a profit-seeking art or profession.

VI. Members of the same corporate body, suing or sued as such.

VII. Persons jointly interested, as co-occupants or expectants, simultaneously or successively, in a mass of immoveable property co-devisees, remainder men, & c.)

VIII. Persons having an interest in a complex subject-matter.

IX. Possessor of a thing claimed by divers claimants; as in case of interpleader, garnishment, foreign attachment (Anglicè,) multiple-poinding, arrestment (Scoticè.)

Examples of cases in which persons more than one may stand connected in interest on one side or other, in particular, on the defendant’s side;—to wit, in non-penal cases—

1. Proprietors or occupants of lands, on which tithes or fee-farm rents are claimed by the same title.

2. Drawer, drawee, and indorsers of a bill of exchange.

3. Principal and sureties, or say bondsmen.

4. Co-freighters in the case of a loss upon a ship’s cargo.

5. Co-underwriters in a case of insurance.

Examples of suits more particularly apt to afford a multitude of witnesses, or sources of real or written evidence:—

Suits relative to

1. Boundaries.

2. Rights of common.

3. Rights of way.

4. Tithes.

5. Legitimacy and filiation.

6. Wills—their authenticity or fairness.

7. Deperition, or deterioration of buildings, or navigable vessels, or their contents, on the occasion of insurance.

8. Corporate rights—(rights possessed or claimed by persons as members of a corporate body.)

Examples of multitudinous masses of evidence, most commonly testimonial, each applicable to any sort of suit:—

1. Alibi evidence.

2. Character evidence. (Facts tending to the depression or exaltation of the character of a party or witness).

3. Facts tending to the proof or disproof of a circumstance operating in diminution or augmentation of the probative force of a person’s evidence: such as connexion or disconnexion in the way of pecuniary interest, natural relationship, rivality, or any other cause of amity or enmity, as towards a party to the suit.

4. Facts alleged as excuses for non-forthcomingness on the part of persons or things.

Examples of cases where multitudes of evidentiary facts may be requisite to prove or disprove a habit, or custom, or condition in life:—*

Case of a habit:—facts probative of

1. Insanity (as for the purposes of subjection Edition: current; Page: [82] to guardianship, invalidation of contracts, exemption from punishment.)

2. Cruelty (on the part of a master, father, guardian or husband, for the purpose of separation.)

3. Loose intercourse (on the part of the husband or wife, for extenuation in adultery.)

4. Case of a custom, to wit, a habit on the part of a multitude of persons.

5. Customary occupation of land, for the purpose of passage, pasture, or exfodiation, or abstraction of water.

Examples of cases where the subject-matter of demand; that is to say, of the service demanded, is complex:—

I. Case where the whole is demanded.

1. Mass of moveable property, due on a bill of sale.

2. Lands or buildings in the possession of divers occupants.

3. Estate yielding successive masses of income, in one or more of a variety of shapes; such as tithes, fee-farm rents, manorial quit-rents, fines or heriots, tolls, fees of office, &c.

II. Where a share only is demanded.

1. Share in a mass of property vacant by death.

2. Share in a mass of property possessed in common, on the footing of partnership.

3. Share in a mass of property subjected to division on the ground of insolvency or bankruptcy.

4. Share of a mass of property captured in war, generally by sea.

§ 5.: Original and excretitious.

An excretitious suit is a suit which has grown out of a former one, called thence, the original.

Sources of excretitious suits:—

1. Obstruction; viz. to the course of justice.

2. Retaliation (judicial;) viz. by counter-demands.

Sources of obstruction:—

1. Original circumstances of parties at commencement.

2. Incidental or adventitious; springing out in the course of the suit.

Original sources:—examples are—

1. Applicant’s relative indigence, thence inability of himself to pursue.

2. Applicant’s deficiency in respect of natural responsibility. [As to natural responsibility, see Constitutional Code.]

Incidental or adventitious sources of obstruction:—

Examples are—

Non-compliance, viz. with reference to judge’s decree, on the part of

1. Parties.

2. Extraneous witnesses.

3. Judicial functionaries.

4. Persons at large, incidentally called upon for judicial services on the occasion of the suit.

Practical use of the mention made of obstructions:—

Rule 1. From obstructions in any number, and need of correspondent excretitious suits in consequence, make not a ground for delaying longer than necessary the termination of the original suit.

Rule 2. Where, for the purpose of the original suit, evidence has been adduced sufficient to warrant conviction of delinquency in respect of an obstruction, proceed to judgment and execution accordingly; making up the record of the excretitious without waiting for the termination of the original suit.

Exemplification of the use of these rules, as applied to testimonial falsehood uttered in the course of the suit:—in one and the same suit, by the same or any other person or persons, testimonial falsehoods may in any number have been uttered, when the grounds for withholding credence have been sufficient for conviction of falsehood, and no further ground or grounds for defence could be obtainable by any separate suit.

In the English system, for want of such rules, falsehoods by thousands remain unpunished, and in a vast proportion give to the criminal the profit sought by his crime: in case of a separate prosecution, the expense, delay, and vexation, being vast and certain; adequate motives wanting; and conviction, judgment, and execution, eminently uncertain.

Practical use of the mention made of judicial retaliation:—

Rule 1. If, from the applicant’s examination, it appears that the proposed defendant has a counter-demand against him, impose not the burthen of defence, unless, if applicant’s statement be correct, service in some shape is due to him on the balance.

Rule 2. For this purpose, make this a constant part of the applicant’s examination.

Rule 3. On the first mutual attendance, take cognizance of all subjects of disagreement, and decide accordingly, doing what can be done towards re-establishing amity of affection, and producing on both sides a sentiment of approbation in relation to the decrees, if any, issued in conclusion.

§ 6.: Plurilateral and unilateral.

Ordinarily, sides in a suit two—pursuer’s and defendant’s: in each situation, individuals in any number: suit plurilateral, viz. bilateral.

Necessary to constitute a suit,—situations two; whereof the judge’s, one; the other, either defendant’s or pursuer’s: suit in both cases unilateral.

Case where defendant’s side only has place: pursuer’s being wanting, judge occupies it. Examples:—

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1. Suit penal, procedure styled Romanicè, inquisitorial; in contradistinction to accusatorial, the more ordinary mode.

Initiator here, the judge: to the judicial, he adds the pursuer’s function. Information he needs none. On suspicion (seat, and perhaps source, confined within his own breast,) he convenes, or causes to be prehended, the object: and by interrogation, extracts evidence, direct or circumstantial, or both;—direct, from responsion; circumstantial, from responsion or silence, and deportment.

If judge acts from information, the more apt course would be, to consign the pursuer’s function to the government advocate.

2. Suit non-penal,—audit of accounts. Judge styled auditor. Case in which it is most in use, that where an individual, having received money from or for government, has to prove the aptitude of the use made of it.

Case where pursuer’s side only has place: defendant’s wanting, judge occupies it.

Example:—Court of claims, Anglicè: benefit claimed, privilege of acting a part in a state ceremony—the coronation.

Preferable course, consigning the defendant’s function to the government advocate.

Thus, Anglicè, on a claim of peerage: so here on claim of a place in the Merit Register, as per Constitutional Code.

In both cases a suit has place: for so have contestation, and judicial decrees thereupon; else, the decision would be avowedly arbitrary, which it is not in either case.

In both, the judge, how unaptly soever, adds to his own function, those of the party or parties on one side: thus are both sides occupied.

Difference between number of sides, and number of conflicting interests. If for every one of a number of antagonizing interests supported in the course of a suit there were a side, the number of sides would be indefinite.

Examples are,—all cases where a mass of property is to be divided among co-claimants; where the subject-matter is complex.

Example of causes of opposition of interests here, are,—

1. Question, who shall be admitted, who not.

2. Of those admitted, what shall be the respective shares.

Here, if the supposition be that there is but one suit, if there be as many sides as interests, there are as many sides as claimants: or the suit may be resolved into as many elementary suits: in each of which there may be one pursuer, and the rest all defendants.

Illustration, on the supposition of four co-claimants. Suits and claimants, suppose four, A, B, C, and D:—

Suit 1. Claimant and pursuer A, the joint contestants and defendants B, C, D.

Suit 2. Claimant B, joint contestants A, C, and D.

Suit 3. Claimant C, joint contestants A, B, D.

Suit 4. Claimant D, joint contestants A, B, C.

Cause of the habit of considering a suit as having but two sides, whatever be the number of antagonizing interests. The design of the suit originating in some one party interested, his endeavours have naturally been, to engage all those to join with him (whose claims he regarded as uncontestable,) were it only that they might share with him in the expense. All who did not join with him were of course made defendants, that by the judge they might be compelled to submit to him the making the division, or say distribution.

Thus come to view identity, and diversity, as to suits.

Every separate demand may be considered as constituting a suit.

This admitted, in every course of action ordinarily considered as constituting the suit, may be distinguished as many elementary suits as there have been made demands in the course of it.


1. All excretitious suits that have grown out of the original.

2. All counter-demands made on the defendant’s side.

3. The demand, in consequence of which a quasi-jury inquiry is instituted.

4. The demand, in compliance with which appeal is allowed.

5. Any demand by which, after being instituted in one judicatory, a suit is for any purpose brought before another; for example, for effecting forthcomingness of evidence or execution.

6. Each such suit may be considered as resolved into as many suits as there are pursuers in it.

7. So, as to defendants.

8. The identity of a suit may be considered as destroyed either by the accession or the secession of a party on either side.

Use of the divisions of suits into plurilateral and unilateral, that the apparently unilateral being seen to be suits proper for the eognizance of a judge, the judge in these cases may be subjected to the same checks as in other cases.

Use of the exposition in regard to identity and diversity—that upon no assumption in regard to identity or diversity, any pretence be built for an arrangement not conducive to the ends of justice.

In particular, for causing operations or instruments to be repeated, under the notion of the extinction of the suit—for example, by death of a party. Examples are various Edition: current; Page: [84] to English procedure: occasions and pretences various—ends and motives the same.

Particular use in regard to succeeding stages of inquiry, recapitulatory and appellate:—

1. In the recapitulatory inquiry, all the excretitious suits that can have influenced the decision in the original suit, should be brought to view—none that have not.

2. So, on the appellate inquiry.

But as by the manifold-writing system, the record containing the whole proceedings will be brought to view in both stages, without fresh expense, the distinction will apply not to exhibition, but to observation—to the notice that may come to be taken in the course of argumentation.

Question—Inquisitorial procedure, why not here admitted?


1. With a view to appropriate intellectual and active aptitude: it is of use, that as the undivided attention of one person is employed on the one side, so should that of another person on the other side: the judge’s attention being equally applied to each, for the purpose of decreeing in favour of that side which has presented the strongest arguments.

2. With a view to appropriate moral aptitude: that in these extraordinary cases the judge may be acting under the same checks, as in all ordinary ones.

§ 7.: Services graduable or non-graduable.

The service demanded by the demand-paper may be either graduable or ungraduable. Understand by a graduable service, a service which admits of degrees: as, for instance, a service which consists in the demand of a sum of money, in compensation for a wrong suffered in a shape other than pecuniary. Whatsoever be the number of sums of money of the lowest denomination, capable of being taken for the subject-matter of payment on the score of compensation, that same is the number of degrees of which the amount of the compensation is susceptible.

Understand by a non-graduable service, a service, in respect of which no alternative has place, but that of complete performance and complete non-performance: as, for instance, the restitution or transference of a thing not susceptible of division, without destruction or deterioration of value, as a horse, or a house. The service consisting in the payment of a sum certain, in pursuance of a contract: for instance, a bill of exchange drawn on the defendant, and by him accepted.*

When the service demanded by the demand-papers, at the charge of a defendant, is graduable, the pursuer will individualize the degree which is the subject-matter of his demand; that is to say, in case of compensation-money for a wrong the precise sum which he consents to accept.

After examining him as to the grounds or reasons on which the fixation thus made of the sum is grounded, the judge will either attach his provisional assent to that fixation, or make such other fixation as to him shall seem meet; which done, the sum so provisionally fixed upon will be the sum stated in his compliance or defence-requiring mandate, as the sum which will be exacted of the defendant, in case of non-compliance, coupled with non-response.

Generally speaking, if the judge sees reason for substituting a fixation of his own to the fixation made by the pursuer, the sum fixed upon by the judge will be less than the sum fixed upon by the pursuer; and in the ordinary state of things, such lesser sum will, by reason of the self-preference inherent in human nature, be the sum fixed upon by the judge. But what may happen is, that in addition to the grounds for increase which have presented themselves to the views of the party, others may have presented themselves to the more experienced eye of the judge; in so far as this is the case, he will present them to the view of the pursuer, giving him at the same time the liberty of substituting the increased sum thence resulting, to the sum originally fixed upon as the sum demanded.

§ 8.: Suits expeditable and continuous: continuous, essentially continuous, and accidentally continuous.

By expeditable, understand capable of being terminated, so far as depends upon the issuing of the ultimate decree, and consequent imperative execution-ordering mandate, terminated on the day next to that of the admission of an applicant, in the character of pursuer, or say demandant.

All factitious delay being injustice while it lasts, all suits are, under the greatest happiness-principle presumed to be expeditable in the above sense; that is to say, that in every instance for the justification of the correspondent delay—of the delay occasioned by their being not expedited, some special reason will require to be given.

By a continuous suit, understand every suit which is not as above expeditable, and expedited; or say non-expeditable suit.

A suit to which it happens to have been a non-expedited suit, has been rendered so either by its own nature, or by accidental circumstances, with which a suit of any sort naturally expeditable, is not so liable to be attended.

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Every suit which is complex is, according to the degree of its complexity, capable of being continuous in its own nature. For the modes of complexity, see Scotch Reform, Delay and Complication Tables, Vol. V.

When, for the purpose of the suit, money or money’s worth requires to be either colected or distributed, or both collected and distributed—collected from various persons—distributed among various persons,—such suit cannot fail to be in a greater or less degree continuous.

Every such collection and distribution suit supposes a trust, created for the purpose: a person constituted a trustee for the purpose of transferring the subject-matter of the suit to an intended benefitee, or aggregate of intended benefitees.

The original trustee will in this, as in all cases, be the legislature: but for the purpose of the fulfilment of the trust, giving effect to the benefit intended by the creation of the trust, the legislature may either locate, or endeavour to locate the trustee, by its own immediate and single authority, or by the intervention of some person or persons appointed by it for the purpose. This person or persons are either a person or persons at large, or the judge: when it is the judge, application must of necessity be made to him for that purpose. Call it a trust-demanding, or trusteeship-demanding application.

Of trusts created, and accordingly trustees located, or say constituted, examples are the following:—

1. In contemplation of insolvency, a person in whose apprehension the amount of his assets (including money in hand, and credits or any debts due to him) fails of being equal to the amount of his debts—that is to say, the money due from him—locates the aggregate of his assets in the hands of a trustee or trustees, to the intent, that after, or during the reduction of the whole to the shape of an aggregate sum of money, distribution of such aggregate sum of money may be made among his creditors, each receiving the same proportion of the debt due to him.

Here may be seen in this case—1. Trustor, the apprehended insolvent; 2. Trustee or trustees, the person into whose possession the money in hand, and the power of collecting the money not in hand, is transferred; 3. Intended benefitees, the creditors. Use of this disposition, putting it out of the power of the apprehended insolvent to transfer to any creditor more or less than that which is regarded as his proportionate and due share as above.

2. Of the proprietor of a mixed stock of property, the decease takes place: to some person or persons, one or more, the greatest happiness-principle manifestly requires that transfer shall be made of it. If (in virtue of an appropriate disposition of the law) by the deceased himself, appointment of this or these post-obituary successor or successors has been made in a will, he or they are in that case, in the language of English law, termed executor or executors. In default of such appointment of an executor, the law has, by enactments of its own, appointed the trustee or trustees for this purpose: say in that same language, an administrator or administrators.

But should the law be so worded, or the parties in question so circumstanced, that persons more than one, to the exclusion of others, demand to be received as administrator or administrators, or no person is willing to act in that capacity, and for that purpose to take upon himself the burthen of the trust,—in that case it will rest with the judge to make the appointment; and the question, who shall be the trustee or trustees so appointed, will be the subject-matter of the suit.

Note, that in case no person should be desirous, and thence no person applying, the nature of the case requires that on some person or persons, the obligation of taking upon himself, and giving execution to the power in question, must be imposed; for what is continually happening is, that among the persons by whom the vacant mass of property may come to be shared, are those who are neither fit nor able to give execution to such powers of themselves.

§ 9.: Distributive-seeking suits.

Suits at large, and distributive-demanding, or say, distributive-seeking suits: into these two sections may the aggregate, composed of non-inculpative suits, be divided.

By a distributive-seeking suit, understand a suit, in and by which the benefit sought to be obtained is an aliquot part of a mass of property of whatsoever kind; that is to say, whether it be a portion of the subject-matter or subject-matters themselves, or say the effects, as in common usage; or a portion of the value of them as determined by sale.

In every such case, for the giving effect to the suit, two decrees will be requisite: one by which commencement is given to the aggregate operation of distribution: the other, by which termination is given to the aggregate operation demanded; that is to say, the distribution of the effects.

Exceptions excepted, of the aggregate which is the subject-matter of the distribution, the composition may be infinitely diversified. For the different modifications, of which the subject-matter of property, that is to say, of proprietary rights and powers is susceptible, see Non-penal Code, Proprietary Rights, their modifications.

Occurrences by which, on the part of the Edition: current; Page: [86] proprietor, the need of demand for distribution is, or is capable of being produced, are the following:—

1. Death of the proprietor.

2. Insanity—relative insanity—on the part of the proprietor.

3. Latentcy of the proprietor.

4. Insolvency at large, on the part of the proprietor.

5. Insolvency on the part of the proprietor in the case in which it is termed bankruptcy.

In the case of the death of the proprietor, the title of the demand for the distribution may have either of two efficient causes:—

1. Testamentary disposition made by the deceased, with the concurrence of the legislature.

2. Disposition made by the legislature, in so far as such disposition has failed of having been made by the deceased.

In each of these several cases, two distinguishable services, the one succeeding the other, are demanded at the hands of the judge: the one the initiative, the other the consummative.

Of the initiative service, performance is made by conferring on some person or persons, in so far as is requisite for the purpose, right and powers the same as were possessed by the proprietor in question at the moment of the happening of the occurrence. The purpose of this transfer being the conferring of the benefit in question on some person or persons other than him or them into whose possession the subject-matter in question is to be made to pass,—the consequence is, that such person or persons are, in respect of the obligation conferred on him or them, a trustee or trustees. A trust is created, in respect of which the legislature is trustor or trust founder: such new possessor or possessors, trustee or trustees: all persons by whom it is intended that aliquot parts of the aggregate subject-matter of distribution shall be received, are intended benefitees.

This case is of the number of those in which the interessees, other than parties, are capable of having place, and on either side, or on both sides of the suit.

This species of suit is of the number of those which may be styled complex: sources of complexity essential to the case are the following:—

1. The subject-matter of the property in question, and thence of the suit.

2. Interessees.

3. Parties admitted on the pursuer’s side.

4. Parties admitted on the defendant’s side.

§ 10.: Several Suits against the same person, how combinable.

Whatsoever be the number of demands which a pursuer has against a defendant, if there be but one pursuer and one defendant, they may be carried on together; and so they ought to be, if either in respect of the direct, or in respect of the collateral ends of justice, any preponderate advantage be by such conjunction gained.

In the hitherto current practice, such conjunction has everywhere had place in sundry cases; to wit, in every instance in which demands in any number are customarily included under one and the same name.

Such complexity may have place on one side only, or on both sides: on the part of the pursuer only, or on the part of the pursuer and that of the defendant likewise.

Advantages from this conjunction, when it takes place on the pursuer’s side alone, are as follows.

I. Advantage to the pursuer:—

He may obtain at once the security sufficient for the eventual obtainment of satisfaction in respect of all of them: whereas, if admitted to adduce them no otherwise than successively, the result might be, that after obtaining adequate security in respect of the first, security in respect of all the rest might vanish and be lost.

II. Advantage to the defendant:—

1. By his learning and viewing at once the whole extent of his responsibility, his mind might, in so far, to wit, as against all demands from that individual, be comparatively at ease: he would see in its whole extent, the burthen capable of being imposed on him—the burthen, for his exoneration from which he would have to provide.

2. In case of cross demands, the defendant would have no more to do than to pay or perform the difference, instead of paying or performing the whole in the first instance: with respect to which he might perhaps be unable; and if able, subject to the accident of not being able to obtain the effect of his demand against the pursuer.

III. Advantage mutual to both parties:—

The same attendance, thence the same journey from home to the judicatory, might serve; and would serve for any number of demands and cross demands.

IV. Advantage to third persons:—

In the same manner as in the attendance of the parties, a single attendance on the part of witnesses, might serve, instead of two or more attendances. So in the situation of missionary judicial functionary, a single act of accersition or prehension, personal or real, instead of two or more.

But be the number of distinguishable demands thus conjoinable with advantage ever so small, or ever so great, they should not the less be kept distinct, and characterized each by its generic and specific name, with indication added of the evidences from which they respectively receive their support.

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Advantages from the distinctness of description are as follows:—

1. On the part of all persons concerned—to wit, parties, assistants, judge, and registrar—clearness in the conception entertained of the several demands, with their grounds in respect of law and fact, would thus be maximized.

2. In regard to probation, whatsoever order turned out, upon inquiry, to be best adapted to the ends of justice, direct and collateral, might, and naturally would be, given to the several masses of evidence, and in case of need, to the several masses of argumentation.

3. In divers cases, the grounds of demand in point of law capable of applying to the same fact, are so nearly contiguous as to be difficulty distinguishable, especially by a pursuer, antecedently to judical examination. For these cases, provision has been made in Ch. XII. § 5, Pursuer’s Initiatory Application Demand how amendable: according to the evidence, for placing the demand, and consequent execution, upon a different footing from that originally alleged.

By the here proposed unlimited conjunction of demands, facility may, on various occasions, be given to such law-allegation-amendments.

§ 11.: Common-law and equity suits,—imaginary, their distinction.

To every one who will suffer himself to think, and who in thinking will consider the system of procedure as a means to an end, and that end the giving execution and effect to the substantive branch of the law to which it is an appendage, it will be sufficiently evident that the distinction between common law and equity is purely arbitrary and imaginary. Common-law procedure, in so far as it is anything better than a system of depredation and oppression, has for its several ends the giving execution and effect to the substantive branch of the law: of equity, if it be anything better than a system of depredation and oppression, the same may be said. Common-law procedure has for its subordinate object the elicitation of the facts which, if proved, the pursuer relies on, as constituting his right or title to the service demanded by him at the hands of the judge, as promised to him by the article of law, which the demand takes for its ground.

Equally true is this, when predicated of equity instead of common law.

This distinction, then, has nothing in it that is natural, nothing that belongs in common to man at large, or so much as to civilized men anywhere: what it is the result of, is altogether peculiar to British soil, and British practice. Originally it was a conflict, latterly a compromise, between two contending powers—the one called spiritual, in contradistinction to the other called temporal—the former having for its sanction that which bears the name of the religious.

So much for the origin. As to the effect, the broad line of distinction is that between what is transient and what is continuous; a distinction in the political nosology, analogous to that between acute and chronical in the natural nosology.

In a case of which the common-law judicatories take cognizance, there is but one demand either altogether simple, or in but a comparatively slight degree complex; in a case where the judicatories called equity courts take cognizance, the subject-matter of demand is to an indefinite degree complex: the common-law mode of procedure did not in its origin comprise, and does not at this time comprise power adequate to the affording satisfaction to the demand.

A case of account may serve for example.

§ 12.: Account suits

By an account suit, understand any suit on the occasion and in the course of which cognizance is taken of demands more than one, on both sides or on either side, originating respectively from efficient causes of right or titles, more than one.

Whatever be the cause or causes of it, it is desirable that to all suffering on both sides, or on either side, from whatsoever cause originating, a termination should be put as soon as possible. Interest reipublicæ (says the Roman maxim) ut sit finis litum: still more strongly and manifestly is it the interest of the individuals concerned.

Accordingly, on what occasion soever a party on each side is come into the presence of the judge, before their departure he will take the requisite course for ascertaining whether between them any, and if any, what causes of disagreement have place: any cause or causes of complaint on either side at the charge of the other: complaint of any such wrong, for which it is in the power of the judicial authority to apply a remedy.

§ 13.: Suits summary and chronical..

By a summary suit, understand a suit dispatched at the end of the smallest length of time: by a chronical suit, a suit dispatched at the end of any greater length of time.

Considered as descriptive of the sort of suit, the only difference between a summary and a chronical suit is—that whereas a summary suit may be dispatched at the end of the smallest length, a chronical suit cannot be dispatched till at the end of a greater length of time.

A suit of any sort may last for any the greatest length of time; the absence of a necessary witness, or piece of real or written evidence, suffices to produce this effect.

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Generally speaking, a suit will be likely to be the more lengthy the more complex it is. But some modes of complexity may be apt to produce greater lengthiness than others.

The case in which the length of the suit is at its minimum, is when on the initiatory application it is dismissed.

Of a suit which is not terminated by dismissal at the end of the initiatory application, the least duration is that which commences with the commencement of the initiatory application, and terminates with the termination of the first mutual meeting.

Where the pursuer is permitted, and the defendant required to attend in person, by far the greatest number of suits are actually thus summary.

Such, then, ought to be considered as the standard duration: in such sort, that for any greater duration some special cause should be looked for, and required to be assigned.

When the parties are both or either of them in the judge’s chamber, in presence of each other, of the judge and of the auditors, every such case is provisionally presumed to be a summary case: if adjournment be made of it to another ordinary sitting, or an appointed sitting, it must be because at such first sitting the evidence is not in such a state, that upon the ground of it an apt decision can be pronounced.

§ 14.: Quasi suits, or say incompletely organized suits.

Of the actors capable of being employed with advantage in the judicial drama, a list has been given in the Constitutional Code.

Without the idea of those characters at the least, the idea of a judicial drama, in any of its ordinary forms, cannot be so much as conceived. These are,—

1. A person by whom the demand is made: call him a pursuer.

2. A person at whose charge the demand is made: call him a proposed defendant.*

3. The person to whom the demand is addressed, and at whose hands the service necessary for the accomplishment of it is demanded: call him the judge.

The idea of a completely composed, or constituted suit, being thus established, a description is now capable of being given of two species of incompletely constituted suits:—

I. Incompletely constituted suit the first:—

Parties,—judge and proposed defendant. Wanting, or as grammarians say, caret, a distinct pursuer. In the person of the judge, the functions of judge and pursuer are united.

Exemplifications of this sort of things are—

1. In English practice—on the adjustment of accounts in non-penal cases—an audit court. Defendant the accountant. Here no demand is made, but the accountant being confessedly a debtor, he is called upon to exhibit evidence, the effect of which, if credited, will be in each instance to exonerate him from the obligation of paying the money in question in the character of a debtor.

2. In German practice, in a certain class of penal cases, there is an entire branch of procedure distinguished by the appellation of inquisitional or inquisitorial: defendant, or proposed defendant, in this case the inquisitor: such is the appellation by which he is distinguished. In the opposite case, accusatorial is the name given to the mode of procedure.

3. In Spain, this species of judicatory, if at all employed, has been seldom heard of, but as applied to that branch of penal suits which applies to offences affecting religion.

II. Incompletely constituted suit the second: Parties, 1. A pursuer; 2. The judge; caret the defendant. By the judge, in conjunction with his own, this part is also acted.

Exemplification is,—

In English practice, the species of judicature called a court of claims.


The original applicant having been admitted, and this same applicant, or (in the case where he is but an informant) another individual, or (in conjunction with him, or in his stead) the government advocate, being admitted pursuer; and the pursuers, if more than one, and the defendants, if more than one, ascertained and noted down as such: the portion of law of which the legal part of the assumed cause of right is constituted being also ascertained, to wit, by the demand-paper, in which the pursuers (if more than one) will have joined: all the remaining operations (the incidental excepted) which are capable of having place during the continuance of the suit, (or say, all the operations that are capable of having place between those performed at the commencement as above, and the issuing of the decree by which execution or dismissal has place)—are composed of probation, with or without counter-probation, exhibition of appropriate evidence on the pursuer’s side, with or without exhibition of appropriate evidence on the defendant’s side.

Of the diversification which the matter of which the proof is capable of being composed—or Edition: current; Page: [89] say, of the matter of proof or probative matter—is susceptible, exhibition has been made under the head of Evidence. Susceptible of the same diversification is the genus of persons distinguished by the appellation of evidence-holders: one sort of evidence-holder being of the sort at whose command is evidence of the sort in question: the evidence-holder of another sort, he at whose command is evidence of another of those same sorts.

Things being in this state, what shall be the order of proceedings? Answer: That which is prescribed by the delay-minimizing principle and the corresponding rules. Elicit every article of evidence as soon as may be. Exceptions excepted, inability within the time in question to obtain one piece of evidence, affords no reason for omitting, for any length of time, to obtain any other piece of evidence, much less for omitting the second piece of evidence, till the expiration of the whole length of time which must elapse before the first piece of evidence can have been obtained.

Exceptions will be the following, on the supposition that the matter of fact has in each case respectively been rendered preponderately probable:—

1. Results of the acceleration, misdecision.

2. Results of the acceleration, to a preponderant amount, addition to the expense.

Neither of these cases presents itself as of a nature to be frequently, if at all, exemplified.

A case in which the production of misdecision might be probabilized, is that where, if an antecedently exhibited piece of evidence were made known to the person at whose hands a subsequent piece of evidence is required, it might have produced the effect of sinister, that is to say, mendacity-assisting information, or say instruction. But from the observation of this danger, the practical conclusion and correspondent rule is—when the evidence in question has been elicited, keep it during the requisite length of time undivulged; not abstain from eliciting it.

But for whatever reason, in regard to evidence, exceptions excepted as above, it is right that in no instance, of any piece of evidence, should the elicitation be purposely delayed, so is it, and for the same reason, that no factitious delay should be interposed between the ascertainment of the person or persons, if any, who are concerned in point of interest to be admitted as co-pursuers: or the person or persons who, on the account of the pursuer or pursuers, or on their own account respectively, are concerned in point of interest, in being constituted co-defendants.

Before an applicant, whether proposed pursuer or informant, is dismissed from the justice-chamber,—in relation to every person, if any, of whom by such applicant, indication has been given of his being likely to be able to afford evidence likely to be relevant and material to the subject-matter of the application, in such sort as to be fit to enter into the grounds of the judge’s decrees, opinative and imperative, in consequence of, and correspondent to, such application;—it will be for the care of the judge, by means of an appropriate mandate, to elicit from such applicant, indication in so far as he is able to afford it, respecting the trustworthiness of such evidence as may be obtainable from that source, and the means of obtainment in relation to such evidence.

Name of the mandate issued for this purpose, a supposed and proposed evidence-holder’s description-requiring mandate.

Heads, under every one of which, matter of the indication, or say information, sought for by such mandate, will require to be inserted, or ignorance declared, are the following:—

1. Name: surname and Christian name, or the equivalent, included.

2. Condition in respect of occupation.

3. Condition in respect of marriage.

4. Condition in respect of abode.

5. Matter of fact, in relation to which he is expected to be able to furnish evidence.

6. Nature of the evidence which he is expected to be able to furnish.

7. Condition in respect of sex.

8. Condition in respect of age.

In relation to these several topics, by himself, or with the assistance of the registrar, the judge will elicit the appropriate information by vivâ voce interrogation; the registrar making minutation and recordation accordingly, until the matter of the mandate has been completed; and in relation to such matter, the applicant will be required, by his signature, in relation to such heads separately, or in relation to the whole collectively, to make known his assent or dissent. In case of his dissent to the matter of the entry made in relation to such head, the process of elicitation will be continued till some proposition be elicited from him, to which his signature, in token of assent, has been attached.

In so far as ascertained, according to the relation they respectively bear to the suit, and their respective local situation, issue to them, or for them, the mandates following:—

I. To an expected pursuer or co-pursuer—

Pursuership or co-pursuership acceptance, or refusal-requiring, mandate.

In this case, in conjunction with the mandate, the registrar will transmit an exemplar of the original pursuer’s demand-paper, with directions, or say instructions, indicative of the mode of expressing such acceptance or refusal, as the case may be: together with order for the retransmission of it when filled up, and Edition: current; Page: [90] the means of securing communication with him thenceforward: and information as to the consequences in each case, with reference to his interest.

Appropriate formulary:

Addressee, the party him or herself, as contradistinguishable from a guardian.

1. Name of the suit.

2. Pursuer’s personal description.

3. This is to require you either to consent to the becoming, from the day of your receiving this, co-pursuer with (naming him or them,) or to decline the being so.

4. If on or before the [] day of the month of [] next ensuing, this same paper marked A, with your acceptance thereon signified, be not received at this office, you will, accidents excepted, be deemed to have declined to take upon you the character of co-pursuer in the suit. In the benefits attached to it, you will have no part. In the burthen liable to be attached to it, you will have no part.

5. In case of acceptance, you will retransmit to this office, after filling it up according to the instructions therein given, the communication-securing paper marked B.

II. To a proposed defendant or co-defendant—

Compliance or defence-requiring mandate.

Of the mandate thus denominated, the matter will be different, according as the suit is of the non-inculpative or the inculpative class.

In this case also an exemplar of the original pursuer’s demand-paper will be transmitted, with appropriate directions, or say instructions, and information as to the consequence to him in point of appropriate interest.

Also with directions as to the mode of compliance-rendering, compliance-promising, or compliance-refusing, with grounds of, or any reason for, non-compliance or compliance-refusing, and communication-securing information.

III. To a supposed evidence-holder—

Evidence exhibition-requiring mandate.

As to place and judicatory, this will be—either,

1. A hither-calling, or say accersitive evidence-exhibition-requiring mandate; or,

2. A thither-sending, or say missive evidence-exhibition-requiring mandate; or,

3. A responsive evidence-requiring mandate, coupled with a paper of interrogatories, or any interrogatory paper annexed.

Of this interrogatory paper, the object is to elicit evidence (self-disserving evidence included) from the supposed evidence-holder, whether a party or non-party.


When the suit is other than a distribution-demanding one, the times for the termination of every suit are two:—

1. When all the evidence which on both sides the nature of the individual case in question appears to have furnished, has been elicited; understand, in a form fitted for ultimate use.

2. When of this or that piece of relevant evidence, the existence of which is more or less probable, the obtainment is, in the opinion of the judge, physically or prudentially impracticable.

In the first case, the definitive decree will be absolute.

It will be so in the case of every one of the four species of suits following:—

1. Noninculpative.

2. Inculpative, but not criminative.

3. Criminative, and purely public.

4. Criminative, and publico-private.

Correspondent to the nature of the remedies to be granted,—and thence to the nature of the remedy, the application of which is the subject-matter of the ultimate service demanded by the suit,—will be the operations, the performance of which will be the subject-matter of the mandate by which the decree is expressed. As to these, see Penal Code, Part II. Remedies collectively.

In the other case it may, as in the opinion of the judge may seem most meet, be either absolute or conditional.

If absolute, and in favour of the pursuer’s side, it will by the imperative part of it, order execution and effect to be given to the correspondent portion of the substantive law.

If absolute, and in favour of the defendant’s side, it will, by the imperative branch of it, pronounce dismissal; dismissal, to wit, of the pursuer and his suit, inhibiting him from making any ulterior application to that same judicatory in respect of it.

In this case, provision is made for securing judicatories, and suitors in the character of proposed defendants, from vexation by unduly reiterated pursuit.

The decree being conditional, it may be so in either of two modes:—

1. In favour of the pursuer’s side, but reversible simply, or modifiable, in the event of the exhibition of this or that piece of evidence by which the pursuer’s right would be established, or the non-exhibition of this or that piece of evidence by which the existence of the alleged right of the pursuer would be disproved.

2. In favour of the defendant’s side, but simply reversible, or modifiable, in the event of the exhibition of this or that piece of evidence Edition: current; Page: [91] by which the pursuer’s title would be established, or the non-exhibition of this or that piece of evidence by which the existence of the alleged right of the pursuer would be disproved.

In both cases it will rest with the judge to determine, which of any collateral security shall be afforded by the party in favour of whom the conditional and defeasible decree is pronounced: in the event of the condition not being fulfilled, or being disfulfilled, as the case may be.

On this occasion, he will elicit in the way of evidence, and hear in the way of argumentation, what the party demanding such collateral security has to allege in support of such his demand; and what, if anything, the party opposing this demand has to allege in opposition to it.

If the suit be a distribution-demanding one, two decrees, to wit, an initiative and a consummative, have place.

By the initiative decree, the cause of inquiry, or say of examination, preparatory to the distribution, is determined to be entered upon.

By the consummative decree, the inquiry is declared to be terminated; and by the appropriative mandate, the distribution determined upon, as the result of the inquiry stands expressed.

Whenever a suit receives its termination, it is by a pair of decrees, the opinative and the recordative; with or without a third, the compensative: with reference to the two principal decrees, it is adjectitious or supplementary.

The opinative decree is either simple or mixed: simple, when in favour either solely of the pursuer’s, or solely of the defendant’s side, there being but one party on each side: mixed, if partly in favour of one side, partly in favour of the other; so likewise if there be any distinction made as between party and party on either or both sides.

When, either on the ground of law, or on the ground of fact, the pursuer fails to prove the justice of his demand to the effective service, which at the charge of the defendant he demands at the hands of the judge, through the means of his judicial service, the tenor of the opinative decree is—failure in the question of fact; failure in the question of law; or failure in the question of fact, and failure in the question of law.

Of the correspondent decree—the tenor in this case is, pursuer, your pursuit is dismissed—let it cease.

Tenor of the compensative decree: Pay to the defendant compensation-money [so much]: (if there be expense or vexation to any person in the character of defendant.) For delay of justice by useless occupation of judge’s time, pay to the helpless litigants fund [so much.]

Although, by the present supposition, the suit may and does receive, and is accordingly supposed to have received its termination in the course of the same hearing as that in which it was commenced;—in which case, what is done on the defendant’s side will have to be entered on the record, as well as what is done on the pursuer’s side;—yet on this occasion, for greater distinctness, it may be advisable not to exhibit anything of what will have been required to be done on the defendant’s side: reserving that for the case which will manifestly be by much the more ordinary case, namely, that in which nothing is done on the defendant’s side, until, in consequence of an appropriate mandate issued by the judge, he has paid his attendance at the judicatory before the judge: the pursuer, exceptions excepted, being present at the time.

Here then will follow the demand-paper, containing the entries that will require to be made on the part of the pursuer, he being the person, and only person, whose discourse it is considered as containing. Any portion of discourse, which in consequence of it may have to be made on the defendant’s side, as and for the discourse of a defendant, or a number of co-defendants, will be exhibited at the same time at which, in consequence of an appropriate mandate from the judge, the defendant or defendants in the more accustomed manner, at a subsequent stage of the suit, make their appearance on the scene.

Tenor of the terminative decree in this case:—

I. Opinative decree. The pursuer’s demand is well grounded—1. On the question of law; 2. So on the question of fact.

II. Mandative decree. Of this the tenor will vary according to the species of the case, and thence of the suit.

1. No wrong or quasi-wrong imputed to any defendant. Suit purely requisitive not inculpative; partition requisition.

Appropriate mandate:—Partition shall be begun, and under my direction made.

Pursuers one or more: defendants one or more: extraneous witnesses, none. Parties fully bound on both sides; judicial service demanded by the pursuer, granted. Opinative decree, pursuer’s demand, was adequately grounded on the question of law: so, adequately grounded on the question of fact. Mandative decree, by the issuing of which the judicial service is rendered, and the effective service commanded to be rendered to the defendant, expressible in the following examples:—

2. Cause of suit, say corporeal vexation, or the correspondent attempt, preparation, menace, or challenge. Mandative decree: compensation-ordering,—Pay [so much] in compensation.

3. Cause of suit, non-performance of contract: Edition: current; Page: [92] contract the most ordinary sort,—work done, goods furnished in expectation of value in money, expected on just and adequate grounds. Decree here again,—Pay [so much] in compensation.

4. Suit publico-private; cause of suit, theft: goods found on defendant—defendant immediately prehended and adduced by pursuer, confessing, or in vain denying: other witness none. Opinative decree, under question of fact, the goods taken by the defendant; under the question of law, taken under circumstances which make it theft. Mandative decree, under compensative part, Convict, restore the goods: under punitive part, Convict, submit to the appropriate punishment [naming it:] thereupon correspondent subsidiary punifactive mandate to the appropriate authorities.

By execution given to this punishment, correspondent service is rendered to the public at large, say a securative service.

In every one of the four sorts of suit, and in every individual of each sort, will be the option of employing either a mandate addressed to the individual at whose hands compliance is expected and called for; or a prehension mandate, addressed to a prehensor, and requiring prehension to be performed either on a person, or a thing, or on both, as the case may be.

Whether the need of prehension has place, cannot be determined with propriety by the mere consideration of the species of suit; that is to say, as to whether it belongs to one or another of the above-mentioned four species.

1. In the case of an individual suit belonging to the non-inculpative species, it may happen that the employment of this instrument, strong and drastic as it is, may be needful.

2. In the case of an individual suit belonging to the criminative species, whether it be the purely-public or the publico-private species, it may happen that the employment of this instrument of security may be needless: indeed, to by far the greatest part of the extent, it will be so.


Stages of inquiry, three:—

I. Original inquiry.

II. Reiterated, recapitulatory, or quasi-jury inquiry.

III. Appellate inquiry.

These are the same in all cases. On each inquiry sittings and hearings in any number.

I. Original inquiry, its business. Judge, after hearings, pronounces his definitive decrees, opinative and imperative, and gives execution and effect, if there be no reiterated inquiry.

II. Reiterated inquiry, its efficient causes:

1. Judge’s spontaneous order.

2. On demand by pursuer.

3. On demand by defendant. Spontaneously he may order it; on demand, he must.

III. Appellate inquiry, its efficient cause, demand from either side.

1. Ordinary time, after definitive judication and before execution.

2. Extraordinary time, after interlocutory decree and before execution thereof: where, but for appeal, interlocutory might have the effect of definitive. Examples:—1. Undue delay; 2. Precipitation; 3. Exclusion of evidence.

I. Original inquiry. Initiatory application, if contentious, as on the occasion of a suit, commences by a public application to the judge, by some person as pursuer, or pursuer’s substitute; exceptions excepted, by pursuer.

If upon applicant’s own showing, no probable just cause of demand appearing, the suit is dismissed: vexation thus to none but applicant.

Causes for party’s non-attendance:—

1. His attendance is impracticable.

2. Preponderantly inconvenient.

3. Plainly useless or needless.

In case of falsehood, coupled with insincerity or temerity, applicant is responsible, as effectually as an extraneous witness. So every other actor on the judicial theatre.

Also for purposed insincerity or temerity, in respect of vexation to party, witness, judge, or any other actor.

Application if causeless, wanton, or malicious, a fine to helpless litigants, or say equal-justice fund.

Applicant may bring all or any witnesses, who may all be counter-interrogated.

Applicant, if, with or without other witnesses, he is unable to speak to a certain fact, but indicates one who could probably speak to it, but whom he could not bring,—judge, before dismission or retention, may convene the alleged probable witness; upon like indication of him, another, and so on, till through one or more such indicant witnesses, a percipient witness is found, whose evidence as such is employable.

In so far as the procedure takes this course, it is investigatorial.

Penal, the case in which such investigation is most in demand; but it may be in any case in which the importance will outweigh the vexation.

The first mutual attendance will be the defendant’s first attendance. Now may all parties bring all their evidences. Better so than not: for thus may matters be settled.

In this case will be the vast majority of suits. Examples:—

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1. Small debts.

2. Trifling assaults.

3. Vituperative oral discourses, with or without others than the parties for witnesses.

4. Small detected thefts.

Be the case ever so complicated, here may generally be settled—

1. The law and facts in issue.

2. In relation to such evidences as have not been adduced, the persons and things to be sought, and their respective places.

By consent of all parties on the other side, on any attendance after the first, the presence of any party or parties may be dispensed with.

II. Inquiry recapitulatory, or quasi-jury inquiry. The case in which an apt judge will desire it, is where evidences which have been received separately as they could be obtained, require to be confronted. A case in which a party will desire it, is—where to the above use is added that of affording to any error of the judge the corrective applicable by the quasi-jury, with ulterior argumentation on the whole evidence. For the check applied by the quasi-jury, see Ch. XXVI. Quasi-Jury.

On this reiterated inquiry, it being recapitulatory, no evidence will be received that could have been produced during the original inquiry: to save time, by consent of parties, the re-exhibition of any lot of evidence may be omitted.

III. Inquiry appellate. Its efficient cause on either side,—dissatisfaction with judge’s decrees. Sense of exposure to it will be among his checks.

Evidence received here, none but what was received below.

Necessary costs, comparatively inconsiderable:—

1. Sole constant cost, the mere paper of the record.

2. Incidental cost, fees for argumentation by law practitioners.

Matter of the record,—statement of the whole proceedings, evidence included: of this, exemplars from 8 to 12 will have been written at the same time, by the same hand, by an invention in use. Saved thus will be,

1. Time, and expense of skilled labour in revising for correction.

2. Possibility of variances, thence of error.

Record transmitted by post. Expense imposed afterwards on the party in the wrong, if solvent.

Argumentative fees. Case requiring it, and respondent unable,—power to judge below, to defray the expense: to wit,

1. Exacting from appellant, in addition to fees for his own side, the equivalent for those on the other side: or,

2. Ordering money out of the helpless-litigants’ fund as above.

Power to judge appellate, to fine for undue appeal coupled with insincerity, temerity, or malice: fine for helpless-litigants’ fund.

On any inquiry, sittings and hearings may be in any number as above. Sittings refer to time—hearings to suit. Divers sittings may each be engrossed by one suit: divers sults may be dispatched in one sitting, each after one hearing.

Under this code, in each judicatory, in every day of the year, are two sittings: one a day, the other a night sitting.

Justice is as needful one day as another: in the dark part as in the light part. A judge can as easily officiate at night, as does a military officer, a watchman, or a man in any other night occupation. A watchman must keep awake: a judge need but be liable to be awakened.

So, out-door sittings as well as in-door. Jurymen on view are out-door. More trouble is now produced by the excursion of one judge than by that of twelve jurymen. Not but that here the judge carries a public with him; without a public, a judge is a tyrant under the name of a judge: always a tyrant; naturally a corruptionist.

A sitting is either of course, or appointed, or say by appointment:—

1. In course, the judge receives initiative application.

2. By appointment, in consequence of an order for attendance at a particular day and hour, to any person or persons after an initiatory application. Night sittings are never by appointment. Out-door-sittings mode of course.

Exceptions excepted, under this code, in all sittings and all hearings, publicity is maximized. For exceptions see Const. Code.

The stages of judicature might be thought here more numerous than expressed: an additional one is, to wit, as often as any part of a suit passes from one judge to another, particularly from a depute to the principal judge. This, however, is frequently matter of necessity in all systems.

Place does not change here as there; nor thence is the vexation of transition imposed on parties and witnesses. In general, where change has place, the original inquiry will be by a depute—the recapitulatory, i. e. the quasi-jury do, by the principal. Desirable it is, in proportion to complexity, intricacy, and importance, that by the judge who ultimately decides, all the evidence should have been heard, that the whole may have presented itself to him in the same shape, and that the best.

By the judge who extracted the viva voce evidence should the immediate decree, in as far as possible, be pronounced.

Under existing system, for avoidance of Edition: current; Page: [94] responsibility, judges several on the same bench: one of them elicits the evidence, whilst the others only pronounce the decree.

In this arrangement, profit the sole object attended to.


§ 1.: Execution, what.

By execution, understand that series of operations by which, on each individual occasion, execution and effect is given, or endeavoured to be given, to that portion of substantive law on which the demand made by the pursuer grounds itself. It is the series of operations, by the last of which that judicial service is rendered, the performance of which is the object of the demand so made.

What is done by this same operation, is the application of one or more of the remedies which, in case of wrong, the law has provided and ordained to be applied.

The portion of law, execution and effect to which is the object of the demand, is either a portion of law ordaining in what case and manner an impetrable right shall, on an application made by the possessor, be converted into a consummate right; or a portion of law by which one or more of the remedies, in consideration of some wrong, of the number of those of which its list of remedial wrongs is composed, is or are ordained to be administered.

By respite, understand respite of execution, in so far as, when, on a certain day and hour execution ought, according to general rules, to be performed, the performance thereof, on account of this or that particular circumstance, is deferred unto some other period or length of time.

§ 2.: Modes of agency applicable to the purpose of execution.

Dependent of course on the mode of operation employed on the occasion, and for the purpose in question, will be in every case, the execution and effect given or not given to the decree in question.

This will of course depend partly upon the nature and condition of the agents, but in a more particular manner upon the nature and condition of the subject-matters operated upon.

As to the agents operating, they will in every case be either persons or things, or both: in so far as they are things, of course they will be things in the hands of persons.

As to the subject-matters of operation, in so far as they come under the denomination of persons, the faculties operated upon—the faculties to which the operation applies itself—will require to be considered and distinguished.

These will be either the physical faculties, in which case the mode of operation will not be different from what it is in the case of things; or the mental, or say the psychological faculties. In this latter case, they will be either the intellectual or the active faculties: and in so far as they are the active faculties, no otherwise can they be operated upon, but through the medium of the sensitive.

Execution and effect may be given to the decree of a judge, either by positive agency, or negative agency. If by positive agency, either on persons, or on things: if on persons, either the person ultimately intended to be operated upon, or some intermediate person, by agency on the physical faculties, or by agency on the sensitive faculties;—on the sensitive faculties, either for the purpose of inflicting punishment, or for the purpose of producing compliance: if on things, either on things appertaining to the person in question, the party in the suit, or on things belonging to any other persons taken at large.

In English practice, under the name of outlawry, this mode of operation is in ordinary use. But in this case it is indiscriminate, applying to all judicial service, and thereby divesting the delinquent of all rights without exception: or at any rate, without any purposed and deliberate exception. It is moreover conjoined with positive agency,—the property of the outlaw being judicially prehensible, and judicially vendible.

Moreover, the evidence on which it is grounded is that sort of evidence, which in its nature cannot but tend to false results; and on which, if justice were the object, no judgment would ever be grounded. In this case, it takes noncompliance as conclusive evidence of delinquency, in the shape of contempt for the authority of the judicatory: whereas it may as easily be, and perhaps as frequently is, the result of inability to exhibit such compliance.

Under the here-proposed code, this negative mode of agency might be employed with any degree of discrimination imaginable: for by vivâ voce examination of the person in question, the whole state of his affairs might for this purpose be brought under view. He might be divested of a mass of property in the hands of this or that person, or of property in the hands of this or that other he might be divested of an as yet unallowed claim upon property in other hands: he might even be divested of his domestic power in relation to this or that child: or supposing the occasion to warrant it, even of conjugal powers or rights; or the faculty of contracting marriage with this or that individual person Edition: current; Page: [95] of the opposite sex, or on part of the female sex, with this or that individual male.

To give effect to any such negative agency, it would be necessary that in giving execution and effect to a decree of this sort, pronounced by one judicatory, all other judicatories should by pre-established law stand engaged to concur: and that actual information of it, effectual and universal information, accordingly be given. In the current systems, this universality of effect actually has place: but as to the receipt of information necessary to prevent injustice, in this as in most other cases, it is treated by them as a matter of entire indifference.

To the decrees of a judge in relation to any person, execution and effect may be given, either with or without the introduction of a person other than the functionaries of justice.

When without such intervention, it will be by mere physical agency in persons or things, as in case of prehension.

When with such intervention, it is by compliance on the part of some person or persons that the effect is produced.

The person in question may in this case be either the defendant, or any other person at large.

On the part of the defendant or any other given person, compliance may be produced by operation on his will, either immediately or mediately through any number of wills, one after another in a chain, as in the case of investigatory evidence.

Call the chain of communication in this case a volitional chain: in the case of evidence, an intellectual chain.

In the way of hostility, or tyrannical oppression, or avowed hostility, compliance has not unfrequently been known to be produced, or understood to be produced, by influence exercised in this unimmediate mode.

In the way of judicature, it cannot be exercised on intermediate agents taken at large, without operating in the character of mislocated punishment, nor therefore without injustice.

But in the case of delinquents, dealt with as such, no reason appears why it should not be employed, in so far as, in the eventual punishment which it involves, no excess has place.

In so far as execution and effect depend upon power exercised by the judge over things, inexecution may be produced by delay, whether the things in question are or are not in the custody or power of the defendant: for in either case, deterioration, destruction, asportation, or concealment beyond recovery, may have place.

Suppose appropriate and adequate security found, provisional prehension and sequestration may on no ground have place in relation to property in the hands of the person intended to be operated upon, whether in the character of a defendant, a pursuer, or an extraneous witness.

As in the one case the object of the judge will be to exclude irreparable damage, so will it equally be so in the other.

On the occasion of the security exacted as a ground for the employment of the means of eventual execution in question, this will accordingly be borne by him in mind.

In the case of things, the mode of operation is mechanical, plain, and easy; so likewise in the case of persons, in so far as the faculties necessary to be operated upon are no others than those physical ones, in respect of which the case is not distinguishable from the case of things.

When the nature of the case requires that the faculties operated upon should be the active, and to that effect the sensitive, then starts up the great mass of difficulty;—then it is, that on the part of the person in question, whatever be the result requisite to be produced, compliance, appropriate compliance is necessary: compliance with regard to mandates and injunctions, or, to use the word more agreeable to the ear of power, obedience: though, in truth, obedience is but one mode of compliance, and the case requires, that be there ever so many modes, they should every one of them be brought to view.

So far as the active faculty and the compliance which belongs to it are out of the question, forthcomingness on the part of the subject-matter operated upon, forthcomingness in the physical sense, conjoint presence on the part of some operator and the subject-matter of the operation, are necessary. In this case, forthcomingness is employed in the literal sense. But when, in so far as mind is the subject-matter operated upon, forthcomingness is not, in the literal corporeal sense, necessary: by an operator stationed in London, operation, and that to the purpose of producing compliance effectual, may be performed upon a mind stationed in Van Dieman’s Land.

In so far as by mind in one place, mind in another place, (though it be ever so widely distant a place,) is capable of being operated upon, especially if with effect—with the effect of producing compliance,—forthcomingness in a particular shape may be considered as having place: forthcomingness in this shape, call virtual forthcomingness: in the other and more ordinary shape, physical forthcomingness.

Here then, and for the several above-mentioned purposes of probation, communication, and ultimate and effective execution, come to be considered the several possible modes of effecting it: always with the ever concomitant and corresponding view of effecting it Edition: current; Page: [96] with the greatest certainty, and, to the purpose of the above-mentioned ultimate end, with the greatest efficiency, and with the least delay, vexation, and expense, to persons associated and interested, whether in the character of parties, witnesses, functionaries, or persons taken at large.

Thereupon call for solution various problems having regard to forthcomingness according to both modes, in relation to which, as above, there was occasion to make the distinction. In the immediately ensuing section, they will find their place.

§ 3.: Of Forthcomingness—to wit, for the purpose of execution.

By forthcomingness, understand throughout appropriate forthcomingness: by appropriate forthcomingness, forthcomingness for the purpose of execution and effect, whether in an immediate way, or in either of the preparatory and instrumental ways above mentioned.

Thus have we forthcomingness to any one of the three purposes above mentioned: probation, communication, and immediate and ultimate execution. In so far as concurrence on the part of the will of him on whom the operation requires to be performed, is not necessary, forthcomingness, in the physical and literal sense;—in so far as such concurrence is necessary, forthcomingness in the above-mentioned virtual sense;—and in this sense, in so far as the operation by which the virtual forthcomingness is produced is effective, compliance is produced and has place.

To be appropriate and effective, forthcomingness, whatsoever be the purpose of it—whatsoever be the subject-matter of it, must be so, not only in respect of place, but moreover in respect of time.

Hence, in the case of forthcomingness for the purpose of eventual execution, comes the danger of irreparable damage, and with it, a great difficulty: especially as, in this case, what is liable to happen is, that the damage may have been produced in a case in which it was not needed: for that, when the time for immediate execution came, the necessary and requisite forthcomingness would not have been wanting.

Such is, by the supposition, the case, as often as a solvent man who would all along have continued so, is subjected to arrest on the score of debt.

Only in this case, where eventual execution comes to be provided for, does the danger of irreparable damage present itself under any particularly formidable aspect: in the case where actual execution comes to have place, no danger need be produced beyond that which was intended.

On the subject of forthcomingness, the following are the topics which present a demand for consideration:—

1. To what particular and specific purposes, on the part of what objects or persons in the character of subject-matters and in what modes, may forthcomingness, physical and virtual, to the general purpose of eventual execution, be necessary.

2. In what shapes or modes non-forthcomingness is, on those several occasions, capable of having place. Of inquiry under this head, the use is that which follows under the next head.

3. In which of those several modes forthcomingness, for the general purposes of execution, is by provision of law capable of being made to have place, and fit to be made to have place.

4. In what manner damage, liable to be produced by the operation of the arrangements having for their object the securing of forthcomingness, and in certain cases, through forthcomingness of compliance, may on the several occasions, on the part of the several classes of persons concerned, be minimized.

This leads to the consideration of the species of damage which in the nature of the case is liable to be irreparable: the shapes in which damage for want of service, or by reason of wrong, must be irreparable. This will depend upon the nature of the subject-matters.

As to descriptions of persons:—1. First come persons at large, in the character of eventual victims of bodily injury, in its several possible shapes. Of these shapes a general idea has already been given: purpose, preserving or rescuing from injury, the person in whose instance the provision for forthcomingness is made, to have place. Mode of forthcomingness,—locatedness in some situation in which the thus protected person may be in a state of security against the evil apprehended.

2. Next come persons appearing in the character of applicants. Purposes preserving from unjust vexation and expense, persons at whose charge, in the character of defendants or otherwise, the application is made: persons at whose charge the service called for by the application, will, if rendered, be granted and performed. Mode of forthcomingness—of all modes by which sufficient security may be afforded to eventual defendants, and witnesses against vexation, unnecessary and thence unjust, either in toto or in degree—of all those several modes, whichsoever shall upon inquiry be regarded as promising to be to the applicant in question least vexatious.

3. Next come cointeressees of the applicant, who, though conjoined with him in respect of interest, have not accompanied him in his application to the seat of judicature. Purposes:—1. Joining with him in affording, as above, security to defendants and forced witnesses, against injustice. 2. Affording to him security for their bearing along with him, Edition: current; Page: [97] their parts in the vexation and expense that may eventually attend the operation of claiming those services, in the benefit of which in so far as the claim succeeds, they will receive a share. Mode, obtaining their personal attendance at the seat of judicature for the purpose of their joint responsibility as above: their attendance, or if without preponderant evil it cannot have place, in some other shape such security as shall be deemed sufficient.

4. Next come witnesses—extraneous witnesses. Purposes as follow:—1. In the case of such as come voluntarily, either in the first instance at the desire of the applicant, or afterwards at his desire or that of any of his co-interessees, security against those for whom they attend, in respect of needless and uncompensated vexation and expense in the exercise of that function; of which security they may in case of need be informed or reminded by the judge. 2. Against falsehood on their part, as well to him at whose request they come, as in favour of the party or parties on the other side, to whose detriment, in the minds of those by whom they are called in, they are expected to testify.

5. As to all the several other actors on the judicial theatre, after what has been said, the purposes and uses of this forthcomingness, as well to each as to all, will not require separate mention.

6. So as to functionaries at large, meaning all such other persons as, not being at the time of the application present at the place at which it is made, may come to their posts to act in the judicial drama. In all ordinary cases, for forthcomingness on their part, the official situations respectively occupied by them will afford sufficient security.

In regard to this matter, whatsoever requires to be recommended as most apt, may be comprised in two rules:—

Rule 1. Of all modes of securing forthcomingness, immediate or eventual—of all modes that promise to be alike effectual, choose that which, with reference to the individual in question, at the time in question, promises to be the least vexatious.

Rule 2. In each case, where the most efficacious is at the same time the most vexatious, weigh against the evil of vexation from execution, the evil from the diminished probability of ultimate execution, and embrace that mode which promises to be the least vexatious.

For this purpose, the circumstances of the individual will in each case require to be taken into account. From the nature of the suit alone, no well-grounded judgment can be formed.

At the commencement of a suit, actual forthcomingness is necessary for one purpose; eventual forthcomingness, and actual security for it, at another time.

In so far as, on the part of the individual in question, testification in the presence of the judge is necessary (or for any other purpose,) the forthcomingness necessary is actual forthcomingness: in so far as such testification is not necessary, actual forthcomingness may not be necessary; eventual forthcomingness, and thence present security for eventual forthcomingness, may be sufficient.

For thus obtaining and securing compliance respecting forthcomingness, the means employable are either such as operate on the body, or such as operate only on the mind: in the first case, they may be styled prehensive; in the other case, accersitive. To employ the prehensive means, is to cause the person in question to be secured wherever he is, and (as a thing moveable might be) brought to the place at which the operation, whatever it be, which it is decreed to perform on him, may be performed: in the case here in question, that of causing him to speak in relation to the subject in question.

The prehensive is always the most vexatious: it ought, therefore, never to be employed but under the expectation that the accersitive will not suffice.

To things, the prehensive is the only one of the two means which the nature of the case admits of. But the prehensive may be performed either by the person in whose custody they are, or by the functionary by whom, if performed upon him, the prehensive would be performed.

When things alone are the intended object of prehension, the appropriate instrument is therefore (unless effective reluctance be apprehended) an instrument of accersition addressed to the person, coupled with an instrument of mandation, requiring him to prehend and adduce the thing.

On what occasions—in what shapes, may forthcomingness with most advantage be made to have place; to wit, to the several purposes of eventual execution, probation, and communication, and in each instance, with least damage?

In so far as the sole purpose in view is the production of forthcomingness, the sole purpose in view is the production of compliance on the part of him in relation to whom the desire is, that he be forthcoming: the question, therefore, respecting forthcomingness, may be changed into a question respecting compliance. The individual being supposed to be, as to the purpose of compliance, forthcoming; which is the most efficacious course, and, at the same time, the aptest in other respects, that can be taken for the securing of compliance?

The problem then here is, at the commencement of a suit, in case of apprehended reluctance and noncompliance at the end of the suit, how to obtain adequate probability Edition: current; Page: [98] and assurance of compliance at the end of the suit: compliance, in so far as at the time in question may be found necessary to the giving execution and effect to the decrees, which the judge may eventually see it right to issue.

In other words, what are the obtainable—and of those obtainable, what the most apt, and thence desirable, pledges for the defendant’s compliance with such decree as it is in the contemplation of the judge to issue?

Forthcomingness in relation to the fictitious entities termed rights—forthcomingness in the physical and proper sense,—actual forthcomingness, cannot have place: not so in the improper, but not the less necessary sense—not so that which may be termed virtual forthcomingness.

As to the mode in which forthcomingness with relation to these fictitious, but not the less valuable objects or subject-matters is capable of being employed, and thence the purposes, to which it is capable of being employed to effect in the most beneficial manner: these are as follows,—

1. In the case of such as are transferable,—eventually employing the right in the character of matter of satisfaction.

2. In the case of those which are untransferable, as well as those which are transferable,—employing them as instruments of punishment: for in so far as abstracted, in that character may the matter of good in this as in any other shape be employed.

3. So the employing them in the character of instruments of constraint or restraint.

The shapes in which nonforthcomingness may have place,—the causes by which at the time in question it may be produced, are—

I. Nonforthcomingness of persons.

1. Take, in the first place, those which have place on the part of a person, and not on the part of a thing. Of these, take the following for example:—

1. Incarceration.

2. Relative confinement (territorial.)

3. Relative infirmity of body, not incurable.

4. Relative infirmity of body, incurable.

5. Relative infirmity of mind, not incurable.

6. Relative infirmity of mind, incurable.

7. Relative infancy.

By relative, understand, in such sort and degree as to the purpose in question, in the individual case in question, to operate superably or insuperably, as an obstacle to forthcomingness.

II. Nonforthcomingness of persons and things.

Take, in the next place, those cases in which this obstacle is capable of applying not only to a person but also to a thing; at any rate, to a thing of the moveable class.

1. Expatriation precedential or antecedential; to wit, to the time of the application made.

2. Expatriation consequential or subsequential, apprehended.

3. Exprovenention precedential as above.

4. Exprovenention subsequential, or consequential apprehended.

5. Latentcy,—the place kept purposely unknown with relation to the time of the application: this may be antecedential or apprehended, consequential or subsequential, as above.

In the case of persons, forthcomingness may be necessary, and nonforthcomingness a source of irreparable damage, in any one of these capacities:—

1. As subject-matters of wrong or injury.

2. As sources of remedy for injury.

3. As sources of evidence.

4. As instruments of communication; to wit, with reference to such subject-matters, between which, communication is capable of being made to have place.

In the case where, by forthcomingness, a person is capable of being a source of redress or remedy, the means by which he may be so are as follow:—

1. By being compelled to administer satisfaction.

2. By being compelled to suffer punishment, for the general benefit of justice.

3. By being induced, by whatever means, to afford evidence.

4. In particular situations as to time and place, by being employed as an instrument of communication; to wit, between any of the several subject-matters above brought to view.

Of the want of forthcomingness on the part of a person in any one of the above-mentioned several capacities, irreparable damage is capable of being the result.

Of forthcomingness on the part of things, the purposes may be—1. Securing from damage, and in particular from irreparable damage, the thing in question, and all who have an interest in it. In the case of a suit of which a thing is the object or subject-matter, these will naturally be, the applicant, and if he has any, his cointeresees.

2. Preserving it from being converted into an instrument of mischief, regard being had to the proprietor, or any other person in whose custody or power it may happen to be lodged.

3. Employing it as an instrument of compulsion or restriction, for the extraction of forthcomingness, or of compliance in any other shape at the hands of any person by whom any interest in it is possessed.

4. Employing it as a means of affording satisfaction, whether identical or compensational, as the case may be: or in default of other means, even as a means of punishment.

The eventual forthcomingness produced for the purpose of execution, whether it be the forthcomingness of a person or a thing, may Edition: current; Page: [99] be either the ultimate or the instrumental object of what is done. Thus, where it is instrumental, the forthcomingness produced on the part of a person may have no other object than the producing eventual forthcomingness on the part of a thing; or the forthcomingness produced on the part of a thing may have no other object than the producing eventual forthcomingness on the part of a person: the owner of a horse may be taken into custody, for the purpose of causing him to give up the horse; or the horse may be taken into custody, for no other purpose than to cause the owner to pay attendance at the judicatory.

Nonforthcomingness or noncompliance may have been produced by any one of the several causes following:—

1. Want of notice, i. e. knowledge of the obligation and demand.

2. Want of power.

3. Want of will.

Supposing notice given and received, either want of power or want of will has been the cause of it.

Supposing power not wanting, only can want of will have been the cause of it.

Of want of power, the cause may be, with relation to the person in question, either intrinsic or extrinsic: intrinsic, as in case of infirmity whether of body or mind, permanent or temporary: if extrinsic, it may be natural or factitious; natural—for instance, the state of the weather or the road, whether in the state of unaptness or distance; factitious, as in the case of an insuperable impediment, imposed by any human hand.

When will is wanting, the deficiency will have its cause in the contemplation either of the immediate or of the ultimate object, in the endeavouring to produce the forthcomingness, as the case may be: in either case, in the contemplation of the suffering which may be the result of it.

When for the purpose of punibility, or satisfaction, forthcomingness of the person does not exist, it may still exist for the purpose of testification.

Letters from Europe reach Van Dieman’s Land, and a letter from a judge to an individual there, need not find more difficulty in doing so, than a letter from a father to a son. The answer might come either without the intervention of any functionary there, as does in England the answer to a bill in equity; or in case of need, supposing a judicatory upon the plan of this code established there, the ministry of the judge might be employed there, in securing correctness, completeness, and clearness, by vivâ voce interrogation, in the same manner as in England.

III. Nonforthcomingness of rights. In this case, no other cause can nonforthcomingness have, than the nonpossession of that authority by which rights are maintained or annihilated at pleasure. In the case of rights, forthcomingness, then, is a state of things which can never fail to have place—nonforthcomingness, a state of things which never can have place.

§ 4.: Of Procedure inter distantes.

When parties on both or all sides, with sources of personal, written, and real evidence, are all stationary and within the local field of the same immediate judicatory, it is well: and happily, in this case are most suits, and most occasions of demand for suits: and in this case, unavoidable delay, vexation, and expense, are minimized.

But what is unhappily not impossible is, that these several objects, individually taken, may, if fixed, be each of them under a different judicatory; each of them in a state of migration: all of them in the field of one and the same foreign judicatory, of one and the same foreign state; or each of them in a different judicatory of the same foreign state; or each of them in some judicatory of a different foreign state: and of each of these objects, the number may be indefinitely great.

Thus complex, consequently thus embarrassing, may be the state of things for which provision may require to be made.

In so far as the field of operation extends not beyond the local field of dominion of the political state in question (distant dependencies at the same time, with their necessarily half-independent official establishments, out of the question,) the difficulty is not insuperable: nor yet would it be insuperable, if nations so contiguous, that of the dominions of each, some part were nearer to some part of the other than to some part of its own, had each of them to this purpose the same system of procedure. But how distant the prospect is of any such extensive good, in this or any other shape, is but too manifest.

On this occasion, when difficulty is spoken of, it is on the supposition that the maximization of the happiness of the greatest number being the all-comprehensive end in view, the adjective branch has for its end in view, maximization of rectitude of decision, and minimization of delay, vexation, and expense.

But under the current systems of procedure, no such difficulty has place: nautically speaking, all is plain sailing. Knots, how numerous soever, are all dealt with in the same manner; all dealt with in the manner of the Gordian knot. For all of them, one sword serves—sinister interest in the hands of the appropriate constituted authorities, but more particularly those of the lawyer tribe. To maximize the number of suits and defences that will afford lawyer’s profit, maximizing at the same time the quantity of such profit extractible and extracted from each—to minimize Edition: current; Page: [100] at the same time the number of suits that will not afford lawyer’s profit: such are the conjunct ends to which, in so far as depends upon that tribe, all arrangements and proceedings under them are directed. As to the maximization of rectitude of decision, taking the law for the standard, it is matter of indifference: as to the minimization of delay, vexation, and expense, it is matter of abhorrence, seeing that minimization of lawyer’s profit would be among the results of minimization of expense.

Suppose this case:—pursuer one, defender one; condition of both stationary, but domicile of pursuer in the field of one immediate judicatory—domicile of the defender in that of another.

In this case, the simplest course, and in general perhaps the least inconvenient, will be for the plaintiff to repair in person to the defendant’s judicatory. To the plaintiff, this arrangement will be the most convenient in respect of the faculty of judicial compensation—a faculty which, if the right be on the pursuer’s side, will be in most cases of prime use to him, and cannot, in any case except in respect of the vexation and expense of migration, be in any way disadvantageous to him.

Note,—that by the rules of procedure, preference in respect of priority in hearings should on this account be given to parties coming from a distance: for the like reaon, so also to extraneous witnesses.

But what may also happen is, that not without preponderant inconvenience, or perhaps not on any terms, is it in the power of him who would be pursuer to make this migration. In this state of things, either examination through the medium of writing must be admitted, or execution and effect cannot be given to the portion of law on which the right of the pursuer to the services of the judge, for the purpose of his demand, is grounded.

Examination of a person, party, or extraneous witness, through the medium of writing, is, in the nature of the case, performable in either of two ways: immediately without the intervention of any judge; or unimmediately with the intervention of the judge, sitting in the justice-chamber of the judicatory under which the defendant has his abode:—mode, in the first case, the epistolary mode; in the other, the distant-examination mode.

In the case where, through the intervention of writing, the judge is occupied in the business of examination as above, the writing must have been addressed to the judge. For suppose no such writing addressed to the judge, and yet the judge employed, the case must be, that though the pursuer is not present, some substitute of his is; and if so, the case is the same as if the pursuer himself were present, except that the defendant has not in this case the benefit of extracting information and admissions from him, as if he were on the spot.

It being supposed that it is by the medium of writing addressed and communicated to the judge that the examination is performed, what is possible is, that the instrument of examination consists of nothing more than a string of interrogatories, to which it is the business of the judge to extract answers. In this case the examination is performed in the same manner as when, in the English equity courts, the examination of an extraneous witness, or of a party considered in the character of a witness, is performed.

In that case, be the importance of the cause ever so great, this vital function is abandoned to some obscure underling whose name is never known, and who acts in secret, no third person being present, and who in relation to the matter in dispute has no other information than what the interrogatories give him—a sort of information which in the case of the epistolary examination of a defendant by the initiatory discourse of a pursuer, termed the bill, is not admitted as sufficient: to authorize the exaction of an answer, a correspondent assertion on the part of the pursuer is made indispensable, though that assertion is, without check or pretence of check, allowed to be false, and is so perhaps as often as not.

As to these two modes, there seems no reason why the option of them should not be given by law to the pursuer: in some circumstances, the one will be the more advantageous to him, supposing him in the right; in others, the other.

If performed in the purely epistolary mode without the intervention of the judge, the examination of the defendant will in so far be performed in the same manner as under the authority of an English equity court it is performed on a defendant, in and by the initiatory instrument called a bill; except that in such bill, to the string of interrogatories is prefixed a vast mass of irrelevant matter composed of lies and absurdities, such as in any system of procedure which had justice for its object, never could have had place.

In this case, unless by accident, the pursuer’s judicatory has at command some means of justiciability, sufficient in the case in question to ensure compliance (property, for example, susceptible of prehension,) the pursuer will not have any means of securing ultimate compliance with his demand, nor in the meantime, responsion to the purpose of giving effect to it, without the intervention of the defendant’s judicatory.

Under these circumstances it seems scarce possible to secure prompt and effectual responsion without full communication on the subject with the judge—a communication not less full than what would require to be Edition: current; Page: [101] made by the pursuer to an agent of his own. On the part of the defendant, suppose (what will always be the most common case) complete reluctance, the following are the courses which it will take:—

1. In the first place, non-responsion, viz. down to the last moment, and for the procurement of toleration, excuse upon excuse, if any, are admitted. True it is, that for securing the correctness of such excuses, and thence the absence of them, where no proper excuses have place, punishment for mendacity, insincerity, or rash assertion, will in course be impending: but of such restraining powers the efficiency cannot in every case be complete. For, with a little ingenuity, under circumstances tolerably favourable, excuses, which if they came of themselves would be just andyadequate, may be brought into existence.

2. The stores of non-responsion being exhausted, next comes insufficient responsion: on the defendant’s part, the insufficient responsion; on the pursuer’s part, indications of the sufficiency, with directions for the supply. To the length of this series—to the number and respective magnitude of the terms of which it may be composed, it seems not easy, if it even be possible, by any general view that can be taken of the subject, to set limits. For producing the effect that would be aimed at by any such limits, a course that presents itself is this:—on the pursuer’s part, facts, which if true would be sufficient (notwithstanding anything that could be said on the other side) to substantiate the pursuer’s claim, are hypothetically asserted, accompanied with a statement, that to that special purpose, true or untrue, unless sufficiently contradicted, they shall be regarded as admitted.

Hence, on a general view, may be seen the difficulties with which, in every case in which there is no judicial confrontation of parties, a pursuer may have to contend. Without his presence, an agent, however ample his instructions, though acting in the presence of the defendant as well as the judge in the distant judicatory, may be but an inadequate substitute.

If an agent chosen by the party as the most likely, more so than any other person he has access to, to espouse his interest with the greatest warmth, and thence to apply his faculties, such as they are, to the subject with the strongest force of attention, is liable to be thus inadequate,—still more so, generally speaking, will be the judge. Skill derived from appropriate practice and experience, say still greater; but for the natural deficiency in the article of zeal, it were too much to expect that, by any extra magnitude of skill, compensation will in an adequate degree be made.

What may be said in general is, that the less complicated the case, the greater the probability is, that, without the judicial confrontation, examination in the epistolary mode can be made sufficient for a well-entitled pursuer’s purpose. To make his option between the two modes, will therefore rest on the pursuer in each individual case.

A case in which the services of the distant judge might be employed in this good work with particular advantage, is this: a pursuer by reason of his occupation or state of health, is incapacitated from migrating to the distant judicatory, and staying there for the requisite time; and moreover, by the state of his pecuniary circumstances, incapacitated from engaging the services of a professional, or other apt agent. Here might be a case of compassion, calling for the conjunct operation of the judge of the pursuer’s judicatory, and the judge of the distant judicatory, namely, the defendant’s judicatory. The pursuer-general, in his quality of advocate of the poor, extracts from the mouth of the pursuer, in the presence of the judge, facts which, in his view, and in the view of the judge are, if true (the contrary of which he sees no ground to suspect,) sufficient to constitute an adequate ground for the pursuer’s demand; at any rate if supported by such evidence as the pursuer, subject to punishment as for insincerity, has stated as being about to be proved by such persons as he has given indication of.

The minute in which this evidence is contained, being authenticated by the signatures of the pursuer-general and the judge, accompanied with such explanatory observations, if any, as shall by them have been deemed requisite, is transmitted by this same judge to the judge of the defendant’s distant judicatory, with a request to him to convene the defendant, and proceed thereupon as the justice of the case may require.

What has been above observed in relation to the case where, at the instance of a pursuer, a defendant is at the commencement of a suit to be examined, will, to an extent more or less considerable, be found to be applicable to the case where, on that same side, or on either side, a person is to be examined in the character of an extraneous witness. Considered merely in the character of a witness, one part of that which would commonly compose the subject-matter of examination in the case of a defendant, has no place in the case of an extraneous witness. This part is what is composed of the subject-matter of admissions. The facts proposed to be admitted may in any number be facts of which the defendant has no personal cognizance; he not having been, in relation to them, himself a percipient witness, but being satisfied of their existence either from report made to him by percipient witnesses, or by inference drawn from circumstantial Edition: current; Page: [102] evidence. From an extraneous witness, nothing in the way of admission, as above, will be relevant; the only facts, the statement of which can with propriety be received from him to the purpose of their operating in the character of appropriate evidence, will be those in relation to which he has been a percipient witness: as to any other facts, if his testimony be in any way relevant—if it be capable of throwing light on the matter in dispute in any way, it will be in the character of purely indicative evidence, giving information of a source from whence appropriate evidence may, it is supposed, be extracted.

As to indifference, although it may have place, and of course not unfrequently will have place, it is, however, no more to be depended upon, consistently with common sagacity, in the case of an extraneous witness, than in the case of a party—on the occasion here supposed, a party on the defendant’s side. By interest in every imaginable shape, self-regarding, sympathetic, and antipathetic—by a tie of interest, of any degree of strength from that of a cob-web to that of a cable—from the slightest imaginable, up to an interest equal in strength to that of the party himself, or even greater, may the affections and correspondent conduct (that is to say, on the present occasion, the discourse of the extraneous witness,) be determined. By correspondent variations in respect of frame of mind as between a party defendant and an extraneous witness on his side, the bias towards that side in the mind of the extraneous witness may be made even stronger than that in the mind of the defendant himself. Many, there can be no doubt, have been the occasions on which, for the purpose of giving support to the side of a defendant in a suit, in which, for the advancement of his own interest, the defendant would not have transgressed the line of truth, an extraneous witness has, without solicitation on the defendant’s part, or intercourse held with him immediately or unimmediately, transgressed that same line in such sort as to have fallen into the guilt of perjury.

Of these observations, what is the practical bearing on the case here in hand? It is this, viz. that as to reluctance in the mind of an extraneous witness, a degree of it may not unfrequently have place, not inferior but even much superior to any that has place in the mind of the defendant himself. In a way perfectly simple and intelligible, a difference not greater than that which is continually exemplified between two persons standing in these two relations one to the other, will suffice to realize this at first sight apparent paradox, without recourse to any such untangible state of things as that of a difference between two minds. The supposition is realized as often as an extraneous witness in indigent circumstances has in expectancy a benefit, the value of which to him in his circumstances is greater, than to the defendant in his affluent circumstances is the value of the whole subject-matter of the dispute.

Generally speaking, in the situation of extraneous witness, the quantity of matter required to be extracted from a man will be, to an indefinite amount, less abundant and more simple than what will require to be extracted from a man in the situation of a party defendant. Most commonly, the fact in relation to which he will be called upon to testify, will be some one fact, in relation to which he has been a percipient witness; while the facts which, for the purpose of one and the same suit, a pursuer may have need to establish as against a defendant, may be indefinitely and highly numerous.

The practical conclusion is, that, generally speaking, examination in the epistolary mode, with or without the intervention of the judge of the distant judicatory, will be more frequently found eligible, as applied to the situation of an extraneous witness, than in its application to the situation of a party defendant.

As it can seldom fail to happen that, in the situation of pursuer, a party may have need to extract admissions or testimony, or both, from the lips or hands of a defendant, so what will be continually happening is, that on his part, the defendant may have like need to extract admissions or testimony, or both, from the lips or the hands of the pursuer.

Under the authority of the English equity courts, where this sort of reaction has place, the lawyer tribe have given themselves the benefit of making for themselves an additional suit out of it. This suit is called by them, a crossed suit, or a cross cause: and forasmuch as, on the part of the plaintiff and his professional advisers and assistants of all classes, reluctance in respect of admissions and testimony may be not inferior to what it is on the defendant’s side, hence it is, that by a state of things thus frequently occurring, the delay, vexation, and expense, with the profit extractible and extracted out of the expense, is doubled: and this in the perhaps comparatively rare case (relation had to the sort of causes carried into those courts,) of a suit so simple as to have no more than one party on each side.

So much for testimonial evidence, received or extracted for the purpose of the suit. Remain, ready-written, and real evidence. In this case, comparison had with those which precede, but little difficulty has place: on the part of the written document, no reluctance to the being produced; as little in the case of real evidence, unless a possible exception he considered as having place in the case of an Edition: current; Page: [103] animal, to which, while perception is ascribed, reason is denied. But in this case, whether it be a canary bird or an ostrich, a Guinea pig or a royal tiger, no obstacle imposed by reluctance is apt to be found insuperable.

But all ready-written evidence, and all sources of real evidence, have this in common with one another, and with every source of oral evidence, viz. that they are in the custody of some keeper; and on the part of this keeper, whether it be in the character of party defendant or extraneous witness, reluctance in any degree may have place.

The case is not much varied, where instead of appearing in the character of a source of evidence, the written instrument, or the other thing in question, of whatever sort it be, has need to be made forthcoming in the character of a subject-matter of the dispute. Of the demand on one side of the suit: of the defence on the other. The same horse which constitutes the subject of the pursuer’s demand, and which, in case of success on his side, will be to be delivered into his possession, may in the mean time be to be inspected, for the purpose of ascertaining the condition the animal is in, and thence its value.

In the cases last mentioned, the difficulty of obtaining, at the hands of a relatively distant judicatory, the assistance requisite to justice, may be considered as being at its minimum.

Ready-written evidence affords modifications in relation to which, appropriate arrangements will require to be made in detail.

Documents, of the contents of which the temporary concealment is necessitated by some exigency of the public interest, must not, during the time of such concealment, be rendered accessible at the command of private exigency or private artifice.

To maximize for all these several purposes, the facility of intercourse between judicatory and judicatory, will be among the cares of the system of procedure. For this purpose alone, were it applicable to no other, the sort of establishment so extensively known under the name of the post, might be worth instituting and keeping on foot, where it is not instituted and kept on foot.

By the transmission of the record itself from the immediate to the appellate judicatory, instead of a transcript,—delay, vexation, and expense, may to no small amount be saved. A transcript would indeed require no more time than the original for its conveyance. But for the transcription, time in no small quantity will be requisite. This time cannot easily be other than official; and of official time thus employed, the quantity cannot be otherwise than limited. Documents liable to be of such importance cannot safely be located, though for ever so short a time, in any other than well known hands. In English procedure, the transmission of a record in the original, from an immediate to an appellate judicatory, is familiar practice: it is the result of the sort of imperative decree known to lawyers by the so unexpressive appellation of a writ of certiorari, or for shortness, a certiorari. In this case, the document continues at the seat of the judicatory, by the authority of which the transmission of it was exacted.

By retransmission, the purposes of justice may be better served; but among the purposes of the system here in question, the purposes of justice never have had, nor ever could have had place.

§ 5.: Friendly Bondsmanship.

A friendly, or say accommodating auxiliary judicial bondsman is, as we have seen, a person who, on the occasion and in the course of a suit, lends his aid to one of the parties, by taking upon himself an eventual and future contingent burthen, for the sake and purpose of conferring on that same party a present benefit reputed more than equivalent.

To a party on either side of the suit is this good office capable of being rendered.

It may be rendered in every part of the course of the suit, on any occasion, for any purpose.

Of the case in which it may be rendered to a party on the pursuer’s side, an example is as follows:—

According to the evidence delivered by a pursuer, circumstances on the part of the defendant are such, that unless for the giving ultimate execution and effect to a decree establishing the pursuer’s demand, arrangements of security are taken, onerous to any degree not exceeding the burthen of such ultimate execution,—the probability is, that the necessary means of giving effect to such ultimate decree would not be obtainable.

In any number, any persons may be co-auxiliary bondsmen for any person.

But it will be for the care of the judge that this accommodation be employed in such sort as not to produce without his intention a commutation of corporal for pecuniary punishment.

In respect of judgment, attentiveness, and even probity, the reputation of the judge stands pledged for his not suffering this faculty to be employed as an instrument for the evasion of justice, as by acceptance given to bondsmen whom the event shall have shown to be insufficient.

Of the demand for security in this or some other shape, the urgency will be directly as the magnitude of the evil to which the proposed defendant will, by being constituted such, be exposed, and inversely as the responsibility of the applicant in respect of his condition in life.

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On this occasion, the party primarily benefited is the proposed pursuer; for, but for this benefit, the benefit which by the legislator is intended for him, might by the judge be denied.

The security thus afforded to a proposed defendant against vexation at the hands of a proposed pursuer is but one of divers securities, of which, on every occasion on which by the judge a security is regarded as necessary, the least burthensome will be preferred.

Where the co-sponsors, or say co-accommodationists, are more than one, the loss will be divided according to pecuniary circumstances, as in cases of compensation for wrong.

On the accommodation-engagement instrument, the matter of the accommodationist’s code will have been printed. A separate register will in every judicatory be kept, under the name of the accommodation-register.

In the accommodation-register, on the occasion of each individual-accommodation-engagement, from this elementary matter, general matter under correspondent heads will be deduced at the end of each year, for the whole of the year:—

1. Name of the suit, and the occasion on which the accommodation bond is entered into.

2. Inconvenience saved by the accommodation-engagement.

3. Party to whom the inconvenience was saved.

4. Person on whose application to the judge, the engagement was entered into.

5. Time during which the engagement is to continue.

6. Result of the engagement—the inconvenience incurred or prevented.

Subject-matters, which for the purpose of securing compliance to a judicial mandate are in general capable of being acted upon, are property and person: by possibility, reputation and condition in life; but so rare and extraordinary are the cases in which to this purpose they are capable of being acted upon, and so precarious is the success of any endeavours for that purpose, that they may be put aside as not worth insisting upon in comparison with either of the two others; to wit, person and property.

In regard to property, a circumstance that presents itself at first view is, that in the case of a great part of mankind, persons under age included, or in the case of a considerable proportion, indeed considerably the greater part, co-subpossession has place.

To execution, whether provisional (or say instrumentary) or definitive, cooperation on the part of him at whose charge it is to be performed, may be necessary or not: if, and when necessary, compliance on his part requires to be produced.

Universal accommodation having been the end in view of this institution, in so far as it has any end in view, such accordingly is the use and application hereinabove made of it. Occasions, as many without exception as those in which this effect could be given to it; sides of the cause both, on the one with the same facility as on the other; number of persons admitted to the exercise of this beneficent function, in whatsoever number disposition is found to have place, and the exigency of the case is found to require: number no more than one, where the means and situation in life of that one are sufficient; number to any amount greater than one, where for the eventual sum necessary to constitute the security, a smaller number will not suffice.

How in these several respects stands English practice? On the plaintiff’s side, to afford a warrant to the burthen imposed on the defendant, this security, originally with parade established, has little by little, as it were by stealth, and for the evident predatory purpose above intimated, been withdrawn. Number in every case two, however superfluous one of the two might be; number never greater than two: consequence, where two could not be found to make up the quantum of security thought fit to be exacted, the security not given, and for want of it, the inconvenience, how great soever, imposed.

No facility is allowed of acting upon property. On the other hand,—on person, such is the facility afforded for operating, that within the memory of man, any person might, on pretence of giving commencement to a suit, for a longer or a shorter time as it might happen, deprive any man whatsoever of his liberty, without having, or so much as fancying or pretending to fancy that he had any right to do so. Against wrong by abuse made of this unbounded power, no security afforded beforehand, no remedy by compensation afterwards. At one time, indeed, something in the way of security was provided: witness the clause si fecerit te securum, with which the order of the sheriff, authorising and commanding him to exercise this afflictive power, at one time commenced. By this clause, of which originally some sense of shame had produced the insertion, a certain limit was applied to abuse. But by limit thus applied to abuse, limit was applied to profit, and no such limit could judicial rapacity endure.

Thus was the liberty of every man sold to every man who would pay the price for it, without any other pretence than an intention to pursue a claim of debt for any amount, how small soever, and without charge of crime in any shape.

But when crime was imputed, and intended to be prosecuted—crime to any amount, howsoever Edition: current; Page: [105] large; then came tender mercy, and caution, by which a vast and complicated system of machinery was set to work, and proportionable uncertainty and chance of escape for criminality produced. Now was set to work the grand jury, with the number of its members necessary for concurrence, from twelve to three and twenty, to take cognizance of the sufficiency of the grounds on which this power was applied for, and oath of secresy taken by all its members, lest by disclosure the person whom, on hearing evidence, they had pronounced guilty, should find means of escape; which escape might on every occasion be produced without the smallest difficulty or danger on pretence of tender-heartedness, by any one of a set of men by whom, in the capacity of petty juryman, after difference of opinion, no verdict could ever be given without commission of perjury.—Contrast this tenderness for, and security afforded to all criminals, with the utter denial of all security to those to whom no criminality in any shape was so much as imputed, by an oppressing adversary.

The first occasion on which the alleviation of this hardship was conceded, was that on which it was granted to a suitor, who in the character of a defendant had been punished as above, without so much as pretence of criminality on his part in any shape. If two persons could be found, each of whom in case of his escape, was content to bind himself to double the amount of the sum claimed on the score of debt, he was then, in the event of their being approved of, and so binding themselves, released from imprisonment, after having suffered it till they could be found. These bondsmen were, by a joint appellation, termed bail. No bail, no release.


§ 1.: Counter-security, what.

Counter-security, is security for the defendant against oppression, designed or undesigned, producible at the instance or on the behalf of the pursuer, by the exaction of preliminary security for the reddition of the service demanded by the pursuer.

It is constituted by, and is in proportion to the responsibility, satisfactional and punitional, eventually imposed on the pursuer; to wit, in case of oppression, as above; particularly if falsehood be employed in the production of it.

Considered as to the person on whom imposed, it is either direct—(directly seated;) or collateral—(collaterally seated;) directly, in so far as imposed on the pursuer alone: collaterally, in so far as imposed on a pursuer’s bondsman, whose consent to [Editor: illegible word] subjected to the burden has been procured, by some tie of self-regarding or sympathetic interest.

Considered as to time, it is either actual, in so far as the burden of it is actually imposed: or eventual, in so far as the burden is only made eventually imposable.

Of the employable species of counter-security—of the shapes in which, of the judicial operation by which it may be afforded, examples are the following:—

1. Impignoration pecuniary,—exaction of the deposit of a sum of money under the charge of the registrar.

2. Impignoration applied to things moveable, of condensed value: say, for instance, precious stones, or gold bullion, or costly paintings.

3. Impignoration applied to things moveable, of ordinary value: for instance, household furniture, or stock in trade in any shape, by consignment to some special trustee, located by the judge.

4. Impignoration, applied to a thing immoveable, by consignment as above.

In these last three cases, the impignoration may be termed quasi-pecuniary.

5. Impignoration of miscellaneous and detached rights, by suspension and eventual ablation of them.

6. Impignoration applied to the person—by incarceration for safe custody.

7. Impignoration, by quasi-incarceration, confinement within boundaries not physical but ideal, prescribed by mandate.

In choosing the species of counter-security, the judge will have regard to the following rules:—

Rule 1. Prefer a shape or species, by means of which compensation may eventually be afforded to the defendant so far as it goes, to any by which no such satisfaction can be made to be afforded. Hence,

Rule 2. Give to the security the pecuniary or quasi-pecuniary shape, according to the amount of it, in preference to every other.

Reasons: By the burthen of compensation, the effect of punishment, according to the amount of it, is produced; whereas by barren punishment no such effect as that of compensation is produced.

As to satisfaction in a vindictive shape, this would equally be produced by compensation to the same amount.

Rule 3. In so far as sufficient, prefer the least afflictive shape: accordingly, announcement of eventually imposable, to actually imposed.

Rule 4. In so far as consented to, employ counter-security with less reserve, than the preliminary security. Reason: The individual is the most competent judge of the degree of the afflictiveness in his own instance: Edition: current; Page: [106] if the burden be too afflictive, he will not subject himself to it.

Rule 5. With a view to degrees of afflictiveness, never lose sight of the difference between the situation of the two parties, in respect of pecuniary and other circumstances.

§ 2.: Counter-security, need of.

The need of counter-security is produced by, and proportioned to, the magnitude and probability of the evils which, by prehension and adduction of the individual, are liable to be produced for want of it. These evils will have their rise, partly in the situation of the proposed defendant, partly in the disposition and situation of the pursuer.

Of the evils liable to be produced by the situation of the proposed defendant, examples are as follows:—

1. The proposed defendant, labouring under a disease for which a distant climate is, by medical advisers regarded as affording a probable, and the only means of escape from impending death. Effect of the execution, of the prehension and adduction mandate—the same as that of a sentence of death pronounced and executed.

2. The proposed defendant is on the point of embarking with a cargo for sale, in which the whole of his capital is invested: before he could have been set free to embark, the vessel has sailed, and, within the time, no person able and willing to undertake charge of the cargo could be found by him. The consequence is, a part more or less considerable spoilt, purloined, or sold to a loss: to the amount of the loss no assignable limit. Effect of the mandate, fine with execution to that amount.

3. In the vessel went a female, to the proposed defendant an object of matrimonial pursuit with prospect of success: the female faithless; consequence, her marriage with another: loss indescribable and incalculable.

4. Destination as before: the female a new-married wife. In the vessel, or on arrival, she finds a seducer; consequence, seduction: loss again incalculable.

In each instance,—cause of the evil, accident,—or sinister design. If sinister design, for proposed defendant, say victim or intended victim.

1. In case of the disease: victim, say a rich proprietor: machinator, a next of kin, or expected legatee.

2. In the case of the emigration with a cargo: machinator, say a rival trader.

3. Victim, the disappointed lover: machinator, the successful rival.

4. Victim, the new-married husband: machinator, the seducer.

In no one of these cases, unless specially provided against as below, does the machinator stand necessarily exposed to legal responsibility in any shape. To the accomplishment of the design, no mendacity, punishable or so much as unpunishable, is necessary. Many are the ways in which, for any such purpose, the machinator may, in relation to the intended victim, contrive to place himself in the situation of creditor.

In the shape of a bill of exchange in which the proposed victim stands as drawer or indorser: in this shape, or no matter in what other, he obtains the efficient cause and probative evidence of a debt which, without injustice or imprudence, the debtor may have left outstanding, having before his departure left in proper hands funds adequate to the purpose.

Nor is it necessary that the hand by which the evil is produced should be that of the principal and prime author. It may be by that of an instrument of his, rendered such by deceit. When the maiden has lost her lover, or the wife her new-married husband, the seducer, full of sympathy and assumed wrath, flies to her relief, and wins her affections.

Of disposition on the part of the pursuer, examples have been seen as above. His situation, unless appropriately modified by counter-security—his situation, in the case of sinister design, whether principal, or instrumental and accessary, as to effective responsibility in every shape, is completely irresponsible.

Happily, in the general run of cases there will be little difficulty. On the one hand, the nature of the service demanded, coupled with the situation of the defendant, will not require for the securing compliance on his part (or at any rate the effect sought for from his compliance,) the imposition of any such vexation on his part as would present a serious danger of ultimate injustice; and the less the danger from the direct security at the charge of the defendant, the less would be the evil produced by the vexation of counter-security at the charge of the pursuer to prevent him from contributing, through sinister design or negligence, to impose the first-mentioned vexation on the defendant.

But no evil which it is or may be possible to exclude without preponderant evil, should be suffered to pass unheeded or unprovided against, by the legislator, or that of his servant the judge. In their respective accounts with the public, every such individual instance of evil that presents itself will be to be set down under the head of loss: as the cases of most frequent occurrence will be provided for with most care, neither will those of the least frequent occurrence remain neglected; especially since, in whatever part of the field the provident eye of the legislator may have left a pit-fall unclosed, evil-doers, whose eyes will Edition: current; Page: [107] by stronger sinister interest naturally be rendered stronger than his, will be at work to widen it.

On this occasion, the antagonizing objects which, in the quality of elements belonging to the calculation in the character of elementary quantities, present a demand for consideration, may be thus stated:—

1. The importance of the service—of the effective service demanded by the pursuer at the charge of the defendant. This will vary, from that of the smallest sum of money which can be the object of demand, to that of the severest suffering to which the law has exposed men, in the hope of keeping excluded the severest evil which man is exposed to suffer from human delinquency. In this element may accordingly be seen included two others—namely, the magnitude of the punishment, and the magnitude of the crime.

2. The magnitude of the vexation to which, for the purpose of preventing the defendant from withdrawing himself from under the burthen, should he be so inclined, it may be necessary to subject him to, while the proof of his being bound to render the service remains as yet incomplete.

3. The magnitude of the inducement by which a person in the circumstances of the pursuer may be led to bear his part in subjecting the defendant to such precautionary vexation in the case in which it is undue, whether it be that the service demanded of him is not due, or that, for preventing him from eluding it, a precaution so burthensome as that which is proposed is needless.

In the case of counter-security against judicial oppression in favour of a defendant, the following are the circumstances by which the magnitude of the provisional or eventual burthen to be imposed on the pursuer for this purpose will require to be governed:—

1. The magnitude of the burthen imposed on the defendant by the direct security—the security for execution.

2. The effective responsibility, satisfactional and punitional, of the pursuer, as far as can be collected from his or her condition in life and pecuniary circumstances, or so far as already notorious or known; or by examination or inquiry directed to the purpose or the occasion in question, ascertainable and ascertained.

Consequently, when on the pursuer’s side there are parties more than one, as many different means of counter-security, if circumstances require, may be employed, as there are parties on that side.

In a punishment requiring purely public care, the government advocate being sole pursuer, no means of counter-security can be requisite.

In the case of a punishment requiring publico-private care, as well as in the case where the service demanded is satisfaction merely, without punishment, means of counter-security at the charge of the private pursuer may be requisite.

This quantity is again a compound one: its elements on the one side of the account, the profit expectable from the offence; on the other side, the loss, by the suffering to which by the commission of it, it will appear to him that he will expose himself.

Here then comes in the consideration of the counter-security exigible.

In this counter-security may again be distinguished two branches; one composed of the evil which the law may have attached to the general demand of the ultimate service in question, in the event of its proving groundless; the other, of the evil attached by it to any special demand made of the incidental service, consisting in the exaction of the security for the defendant’s compliance, or what is equivalent to it.

The person to whom the responsibility attached to the general demand, on the supposition of its proving ungrounded, will apply, is of course the pursuer. But a person to whom the responsibility attached to the special demand of the extra-security applies, may either be a pursuer or an extraneous witness; for the question as to whether the ultimate service demanded is due, and the question whether the precautionary security antecedent to full proof is necessary, are two perfectly distinct questions: between the sets of facts to which they respectively relate, there may be no connexion whatsoever.

As to the quantity of vexation necessarily attached to the situation in which the defendant must be placed, in order to secure on his part the compliance necessary to the adduction of evidence on both sides, the maximum will in general be comparatively inconsiderable: restraint on his liberty of locomotion during the time necessary for the adduction of the evidence on his side, or the time, at the end of which the pursuer will have adduced the whole of his evidence, or in failure of it, suffered the dismissal of his demand; of these two periods, the longest, whichsoever it may be. But from this restraint, temporary and short-lived as it may be made to be, evil consequences, serious in duration as well as magnitude, to an indefinite degree, may in some cases be included. Of these, lest the general conception formed of them should be inadequate, it may be necessary to bring to view a few examples.

In the view of exhibiting in its greatest possible dimensions the evil liable to be produced by a short-lived restraint on the liberty of locomotion as above, a course that would be apt to present itself is—the placing at the highest point that could reasonably be assumed, the mass of the matter of opulence Edition: current; Page: [108] capable of being thus wasted or injuriously transferred. This course would, however, be a delusive one. The greater the quantity thus brought to view as capable of being wasted or ill bestowed, the more rare would be the examples of its being in fact thus dealt with. On the other hand, the magnitude of the evil (in its first stage at least)—the magnitude of the suffering, is not by any means proportioned to the magnitude of the sum which is the instrument of it. Of the suffering produced by a loss, the magnitude is not as the absolute amount of the sum lost, but as its relative amount, relation being had to the aggregate mass of the property of the loser: to a person the value of whose whole property does not exceed eleven pounds, the loss of ten pounds may produce at least as severe a suffering as to one who has eleven thousand pounds, a loss of ten thousand; while the number of those who are susceptible of a loss of ten pounds is perhaps a hundred times as great as the number of those who are susceptible of a loss of ten thousand pounds, leaving a remainder of not less than one thousand pounds.

Perhaps by no one of those, by whom the functions of legislation have as yet been exercised, has this only true measure of good and evil, as dependent upon the matter of wealth, received due, if any attention. In his eyes, the sum which, with relation to his own circumstances, is of no importance, is absolutely destitute of importance; what is trifling to himself is, in his view of the matter, trifling in itself. Of this error what is the cause? Answer: Want of sympathy. But of sympathy in this case there are two modifications—sympathy of affection and sympathy of conception; and distinguishable as they are, intimately connected with one another are these two modifications: each is to the other cause and effect. Of that for which a man cares little, his conception is proportionably faint; and concerning that of which his conception is faint, his care is proportionably inconsiderable.

Thus much as to security: now as to counter-security. Proportioned to the danger impending over the condition of the defendant, in respect of the loss and vexation he is liable to be subjected to, by the security exacted of him at his charge as above, is the efficiency requisite to be given to the counter-security, the object of which is to protect him against that danger.

In this case, the eventual suffering, if it be adequate, that is to say, certain of outweighing the profit from the wrong, must be indefinite: in duration, co-extensive with the whole of life; for supposing it limited, though for example to imprisonment for so great a length as twenty-one years, a person who, by rivalry, for example, in trade or marriage, had been rendered an adversary to the defendant—if it were simple imprisonment, might render it worth the while of another who had nothing, to inflict the calamity on the defendant by a mendacious statement of facts, which if true would create an adequate demand for the security: and this, too, even under a full assurance that upon hearing the evidence on both sides, the falsity of the statement would be brought to light, and infliction of the appropriate punishment on the false witness a certain consequence.

By incarceration, continued down to the time at which the truth of the statement has been either proved or disproved, the testifier in question would be eventually subjected to this indispensable punishment, thus seen to be indispensable.

On the other hand, suppose the statement true, the actual suffering might, and naturally would, be confined within narrow limits; and supposing it voluntarily submitted to, as in a state of things frequently exemplified, it might be, the evil would thus by the very supposition be reduced to nothing.

Of all the several modes of affording the requisite counter-security, this is manifestly the most afflictive; and if this be not too afflictive to be employed, still less could any others be.

Thus, then, would stand the case. On the here-proposed plan, no person, for the obtaining of the security, when needless and adverse to justice, would be able to purchase a false testimony; many a person, for the obtaining of the security, where needful and conducive to justice, would be able to purchase true and honest testimony.

By imprisonment, the security may be considered as being in all cases adequate. For the person of the applicant being thus completely at the disposal of the law and the judge, the punishment is, physically speaking, capable of being screwed up in magnitude to the utmost capacity of human sufferance; and thus the evil to which, on the score or eventual punishment, the evil-doer is subjectible, is rendered preponderant over the good of the profit which in any shape it would be possible for him to reap from the evil deed—the sinister design—to whatever degree successful.

§ 3.: Possession-giving security, or pledge-giving security.

Placing goods in pawn for the purpose of raising money on them, as a security to individuals for the money borrowed on them, is a practice universally notorious, and as universally unobjectionable. In so far as practicable with advantage, not more objectionable should it be when applied to the purposes of justice: on the one hand, to secure defendant against irreparable vexation; on the other hand, to secure to a pursuer a chance which he could not otherwise have, for the obtainment of Edition: current; Page: [109] service due to him, in some shape in which it would not otherwise be obtainable.

To be made capable of answering the purpose, the property thus placed at the disposal of the judicatory must be of the moveable sort, and actually forthcoming, and placed within the physical power of the judge. Supposing it an unmoveable subject, the nature and character of the security would be quite different. In the character of a security, the only effect it could have, would be that of attaching invalidity to all succeeding instruments by which it was endeavoured to be transferred to other owners.

Against the acceptance of security in this shape in case of need, no preponderant objection can, it should seem, be opposed. With regard to the sensible evil, the great probability is, that it will not come into existence; for unless on the part of the bondsman certainly, and on the part of the security-giver probably, a persuasion to that effect had place, the security would not be afforded. Moreover, supposing it to come into existence, still it is not so much net suffering produced; for that which is taken from the friend of the wrong-doing pursuer, being given to the defendant, who has been wronged by him, the only net loss experienced by the national stock of happiness is the amount of the difference between the pain of loss and the pleasure of gain produced by the transfer of one and the same instrument of enjoyment.

In the case of bondsmanship, it has already been observed, no confinement of the person is in an immediate way made to have place; but in an unimmediate way, if and in so far as imprisonment for debt has place, it may have place. For in the event of a suit against the bondsman, for the obtainment of the matter of compensation, if either by inability or unwillingness, payment on his part is prevented, whatever be the imprisonment which he could suffer for a debt of his own, the same may he be made to suffer for the debt of him to whom in this way he proved himself a friend.

The course of the judge is thus to be steered between two opposite dangers, like that of the mariner between two rocks:—

1. Danger of leaving in the situation of the applicant an injured man without redress, for want of taking the measures necessary to secure forthcomingness in respect of person and property, for the purpose of giving execution and effect to the law.

2. Danger of oppression to the defendant, by vexation in the shape of imprisonment, loss of property, or evil in any such other shape as by the nature of the case it may happen to him to stand exposed to.

The first observation that presents itself is—that in the case of the applicant’s offering himself to be imprisoned, the probability of ulterior evil is in case of acceptance extremely small. The probable case is, that in his opinion the justice of his claim is indubitable; and if so, the instant that, by the examination of the defendant, this appears to be the case, the imprisonment is at an end.

True it is, that as before observed, the claim put in by him may be an unquestionably well-grounded one; yet still, if this be the course pursued for the purpose of giving effect to it, evil to the defendant, evil to an enormous amount, and thence undue, may be the result. Here then comes the case where the appropriate warning will be given to him by the judge:—

“Speak the truth; tell us whether the act of power you call upon us to exercise, would not, to the defendant, be productive of vexation in such or such a shape? (mentioning it.) For take notice, that if it would, your demand will not be granted; and moreover, you may be made effectually responsible to him, to the amount of an equivalent for the vexation thus imposed on him at your instance.”

Three rules, however, may perhaps serve him for his guidance:—

Rule 1. Parties on both sides equally sincere: of two evils, reparable and irreparable, choose the reparable.

Rule 2. Party on side—say the pursuer’s side—sincere; on the defendant’s, insincere: throw the evil on the insincere defendant, although it should be irreparable, rather than upon the pursuer, though upon his side, as far as appears, it may be reparable. Reason: By compliance with the demand, of the justice of which the defendant is by the supposition conscious, it is in his power to preserve himself from this evil: thus, in fact, it is by himself that the evil is inflicted on himself.

Rule 3. Of the magnitude of the evil, either absolute, in the case of a party on the one side, or comparative, in the case of the parties on both sides, no true conception can in any case be formed, unless the pecuniary circumstances of all parties be taken into the account.

Such as have been seen, are the difficulties and embarrassments which encompass the mind of the legislator whose operations are governed by a real regard for the ends of justice.

English practice knows of no such embarrassment. By English judges, who in relation to this part of the field, as in most others of the field of procedure, have saved the superior authority the labour of legislation, no such embarrassment has been felt. Acting with uncontrouled power in the pursuit of its own ends here as elsewhere, the fraternity have been sitting upon velvet.

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So long as to those ends no counter-security seemed necessary, no counter-security would they give. Till less than a century ago, by any person, almost any other might, on paying of the price fixed to Judge and Co.—the price at which liberty was sold—be cast into prison. When at last, by the oppression and depredation thus committed, an uneasiness was felt to such an amount as to find its way to the ears of a lawyer-led, self-styled and self-seated representation of the people, a counter-security, such as it was, was established, and that security consisted in an oath—an oath, the sole panacea for so large a portion of the maladies introduced into the body politic by the hands of lawyers—the ceremony called an oath, no matter by whom, any more than under what circumstances, nor to what ends, performed.

Of this nostrum, the insufficiency to all good purposes, in whatever form it has ever been administered, is shown elsewhere. What belongs to the present occasion is the observation, that in this quack medicine consists the whole of the counter-security afforded, on an occasion for which the need of an effectual counter-security is so urgent as it has been seen to be.

Should a man say, “Should my friend fail to do what is required at his hands, take me; commit me to prison, and keep me there, till he does.” For the acceptance of no such offer would he find a door left open anywhere by judicial practice; that is to say, in an immediate way, for in an unimmediate way it has been left open with but too much effect.

In this case, then, the only sort of security that is given, is that which is given by self-subjection to collateral responsibility in a compensational shape.

This, however, does not amount to that mode of security which has just been designated by the appellation of the pledge-giving mode. Of an eventual debt the existence is indeed recognized; but of the money due by this debt, the eventual obtainment is left to the same decision, as it would be in the case of the applicant, if no such security as that which is here in question were afforded by him.

Blackstone in hand,—“By the law of this country,” exclaims the panegyrist, “no man can be deprived of his liberty, though it be but for a moment, without a charge on oath for his security!” A charge? A charge for which, he it ever so utterly and knowingly false, he by whom it is made, has not in one instance out of many a hundred, not to say thousand, anything to fear!—nothing at all, if either he be too poor or too loosely connected with the territory, to be worth prosecuting; or the victim be too poor to prosecute, or not vindictive enough, and at the same time rich enough, to tax himself to an indefinite amount, for the chance of sending off his injurer to a settlement which perhaps it is his wish to repair to. An oath?—a ceremony which all merchants,* competted to it by all parliaments, and which all good men and true, instigated by the example of all self-attested receivers of the Holy Ghost, and the frequently repeated instigation or approbation of all judges, are in the face of those same judges continually treading under foot, with conscience in their mouths—a ceremony which enables every petty tyrant, on pretence of preserving the peace, with full assurance of impunity to do with the helpless, that is to say, with ninetenths of the community, what he pleases.


§ 1.: Degrees in the scale of affluence, how measured for the purposes of compensation and punishment.

Of a person’s place in the scale of affluence, the altitude will be as the amount of his money and his money’s worth, directly; or the amount of his pecuniary burthen, and quasi-pecuniary burthens, inversely.

Accordingly, no assessment ought to be grounded on the consideration of his means exclusively: none without taking into the account the amount of burthens as above.

In the account of means, or say assets, due regard will be paid to the difference between income derived otherwise than from capital, and income derived from capital.

In the account of burthens will be comprised the expense of maintenance, afforded by the party to such dependents as belong to him, deduction made of such earnings, if any, as they are in the habit of making. Of such dependents, examples are the following:—

1. In the case of a married man, his wife.

2. His children, such of them as are under age and unemancipated.

3. Any helpless grand-parent, or other progenitor or progenitors, male or female, with whose maintenance he is obligatorily or habitually charged.

In and for the purpose of assessment made of a mulct imposed, the judge will proceed on conjecture—or say, vexation-saving estimate. In so doing, after putting such questions as to him shall appear appropriate, concerning the station occupied by the party in the scale of affluence, stating his means of subsistence as derived from ordinary daylabour, handicraftship, art, profit-seeking profession, or property—stating it at so much per year, or so much per week,—he will chereupon Edition: current; Page: [111] state the amount of the mulct, declaring at the same time its ratio to the amount of his annual income.

Tables constructed for this purpose, to save time and labour in calculation, will be kept hung up in the judicatory, and form part and parcel of the furniture thereof.

The judge will declare, that from such data as have come to his observation, this is the nearest estimate which he is capable of making.

Antecedently to this declaration, he will have elicited from the examination the amount of the pecuniary burthen. In the ordinary case of a person unmarried, this amount being equal to 0, a word or two will be sufficient for the probation of it. In the case of a female, small is the number of words which in general will suffice.

If, upon hearing the amount of the mulcts (regarding the estimate as excessive,) the mulctee chooses rather to undergo examination for the proof of the correct amount of his means of payment, than pay it or stand bound to pay it, he will declare as much, and the judge will proceed to take his examination accordingly.

Divers circumstances will be apt to concur in preventing an estimate thus taken from being so correct as could be wished. But they are inherent in the nature of the case; and the inability to reach the highest point in the scale of exactness is no reason for omitting to make the nearest approach to it which is consistent with the avoidance of preponderant evil from the same cause.

1. In regard to means. A person who, being attached to this or that profession, derives not from it, as yet, any quantity of emolument which does not to any degree fall short of that which is ascribed to him by the vexation-saving estimate, submits to a mulct which is in truth excessive, to save that humiliation and prejudice to his professional reputation which would be the natural result of the disclosure.

2. In regard to burthens. What may happen is, that a burthen bearing any proportion to his means, may be produced by the obligation, legal or moral, of affording maintenance to the offspring of an unlawful intercourse, or to a person with whom such intercourse is or has been maintained.

§ 2.: Costs the grand instrument of mischief in English practice.

When, through the instrumentality of an English judicatory, depredation and oppression are committed, costs are in such cases the capital instrument. No complaint so frivolous, but that, with the help of this instrument, the ruin of any one of the vast majority of the actual population may to a certainty be accomplished; and to every one who will make this use of it, a perpetual, and that an ample reward, is continually held out.

By some trifling imputation cast on his reputation by Nokes, a correspondently trifling injury is sustained by Stiles. Under natural procedure, at the first and only interview of the parties before the judge, the matter would be settled between them: Nokes receiving under the hand of Stiles an acknowledgment of the misrepresentation, with expressions of regret for the having given utterance to it, and an ample compensation for the two days of Nokes’s time consumed in the application for redress; one, by the application made to the judicatory for the mandate requiring the attendance of Stiles, the other by attendance paid by Nokes in consequence: fees to judge or judge’s subordinates, none; fees to advocate or attorney, none: no such assistance being of the least use.

So much for natural procedure. How stands the matter with technical procedure? The suit carried on in the usual manner, at the usual expense; and the misrepresentation being proved, the frivolousness of it at the same time made manifest, the judge informs the jury that they are bound to find for the defendant, but that the damages are at their option, and that the sum appointed to be paid on that score may be as small as they please.

The damages they accordingly assess at a farthing. Defendant triumphs: but the triumph is a dear-bought one. Behind this farthing lies a sum of from £50 to £300 in the name of costs, sadly contrary to the expectation of the unhappy Pyrrhus by whom this triumph has been enjoyed. If he has no more than a moderate share of business, whatever his employment may be, another such triumph is not necessary to the accomplishment of his ruin: the single one is sufficient, when, to his own costs, those of his adversary’s are also added.

Who set the plaintiff to work? The attorney: for out of these two or three hundred pounds the attorney pockets no inconsiderable share. Thereupon comes the usual outcry against attorneys—“O, what sad wicked men are these attorneys!”

But who set the attorneys to work? The judges and the House-of-Commons lawyers. By whom else was the system of depredation created and preserved? By the judges was it not created?—by the lawyers in both Houses, their descendants and others linked together by the ties of the same sinister interest, preserved: preserved in a negative way, by care taken never to introduce any measure that can operate as a remedy, completely obvious as is the remedy: positively preserved by standing up, and being known to be in constant readiness to stand up, to oppose with all the zeal that interest and interest-begotten Edition: current; Page: [112] prejudice can inspire, whatsoever proposed remedy shall bear on the face of it any promise of being productive of that effect.

Is not a reward—a real reward, thus perpetually held out by them to everybody who will be instrumental in the production of the evil abovementioned? Where is the villany in the profit of which they do not look to be sharers?—where is the villany—so long as, instead of punishment, it is reward that they reap from it—they are not at all times ready to do their utmost to render triumphant?

Yet while these men reap the greater part of the profit, and by their tongues contribute might and main to the success of it, the attorneys, who are but the machines for conveying the mischievous matter to their lair—the attorneys, whose share in the production of the mischief is in comparison as nothing—on the attorneys do the people, the silly and unreflecting people, cast all the blame. Thus comes an ex-chancellor, Lord Redesdale (by whose incapacity the unhappy people of Ireland were so long afflicted,) and, as if his own practice had not taught him so completely the contrary, observes the popular delusion, takes advantage of it, and by his false certificates assists in casting on that comparatively innocent branch of the profession all the blame.

By whom was this system of depredation and oppression invented and organized? Was it by the attorney, any part of it? No, but by the judges—the whole of it—the judges, with their partners and accomplices in both Houses for their protection and support.

§ 3.: Burthen of costs minimized.

Fundamental rule:—Antecedently to the decision as to the question whether any party is in the wrong, and if yes, who, and in what way, and to what extent in the wrong,—to the government, at the charge of the people, for the benefit of the people, in their eventual capacity of suitors, it belongs to take upon itself the burthen of costs, even though from its so doing the aggregate amount should in some degree receive increase. But this will not be found to be the case.

After minimizing the burthen, in so far as it cannot but rest on the parties, one or more of them, the endeavour of the legislator will be to fix it upon each party, in amount bearing a proportion to the degree in which he is in the wrong (or say, to blame, or blameworthy,) regard being had to the distinction between blamelessness, rashness, and evil consciousness.

By the burthen, is here meant the painful sensation, not the pecuniary amount of the loss by which that sensation was produced. For in so far as the location of the burthen has for its object, effect, and tendency, the prevention of future similar wrongs, it is by this sensation, and not by the quantum of the matter of wealth, that the effect produced will be proportioned.

When as between a party on one side and a party on the other side, pecuniary circumstances are to a considerable degree unequal, it follows, that to render the pressure of the burthen equal, it is necessary that the pecuniary burthen should be assessed in a larger proportion on the richer, than on the less rich: that proportion being directly in the ratio of the quantum of the matter of wealth possessed by them respectively.

Here, then, is a case in which, on an account different from that of blame, the pecuniary burthen of costs may be, and ought to be, assessed upon a party, namely, the magnitude, absolute and relative of the net quantity of wealth in his possession, or at his command.

In this mode of assessment there is nothing anomalous with relation to the other part of the system of government. The object—the declared object at least, of those who have the management of the public expenditure, is to maximize the equality, to minimize the inequality, of the pressure produced by the correspondent taxes: no reason can be assigned why the repartition of the sensible burthen should in this case be determined by principles different from those by which it is determined in those other cases.

Efficient and justificative causes of subjection to indemnificational obligation, in respect of costs of litigation, are the following:—

1. On the part of the obligee, criminality by evil consciousness.

2. On the part of the obligee, culpability by rashness or heedlessness.

3. On the part of the obligee, superiority in the scale of opulence, relation had to the position of the adverse party in that same scale.

Parties with relation to one another are—1. Adversaries; 2. Associated allies.

Considered with a view to eventual reimbursement at the charge of an adverse party, costs, say litigational costs, require to be distinguished into—1. Ante-contestational, or say, pro-contestational; and 2. Contestational.

By ante-contestational, understand such as have been incurred by a party, whether on the pursuer’s side or on the defendant’s side: on the pursuer’s side, before he has been constituted such; on the defendant’s side, before he has been constituted such.

Exceptions excepted, for reimbursement of contestational costs, indemnificational obligation will not be imposed in any case, without antecedent allowance and authorization of the expenditure, by a mandate of the judge. To a mandate to this effect, give the denomination of a litigational-disbursement-authorization mandate.

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As a ground for the issuing of a litigational disbursement-authorization mandate, the judge confronts with one another, the two quantities, to wit—

1. The quantity of suffering in the shape of pecuniary loss, and other shapes, likely to cause to the party in question, for want of the disbursement, on the supposition of its not receiving authorization, and thus resting on the shoulders of the disbursing party.

2. The quantity of suffering likely to be produced in the breast of the party on the opposite side, in the event of the burthen being removed to his shoulders, from those of the party or parties on the other side.

In respect of contestational costs, indemnificational obligation will not be imposed, unless pre-authorization for the disbursement has been given by the judge; for if it were, the power of taxation, at the charge of one party, would thereby be given to the other. That to any party, whether in the right or not in the right, no power should be given exercisable at the charge of a party not in the wrong, is manifest.

Nor yet without modification should it be given at the charge of a party who is in the wrong. For in this case, excess to an unlimited amount might thus be given to the burthen so imposed; and beyond what is proper, on the joint consideration of satisfaction and subsequent punishment, whatsoever quantity of money is thus exacted, will be wrongfully exacted: the act is an act of oppression.

In proportion to a man’s altitude in the scale of opulence, will be the danger of his falling into transgression in this shape: for in that same proportion is his ability to make the sacrifice necessary.

Of all these transferences, remains the most important, which is the transference of so large a portion of the at present customary mass of judicial operations, from professional hands paid by the party, to the official hands paid by the public; all danger of abuse, from quantum and increase of private profit, being obviated as above.

Immediately or unimmediately—without or with the intervention of other minds one or more—in the judge’s mind must have been presented all the objects, by the contemplation of which his decrees have been determined. Behold now the effects, in so far as an intervention of this sort has place. Good in no shape; evil in a variety of shapes: evil even when the assistant employed is of the gratuitous class; evil incomparably greater when he is of the mercenary class.

In the first place, take the case where the evidence on which the fate of the suit depends, is all of it of the nature of personal and orally-delivered evidence: after that, the case in which ready-written or real evidence is substituted or added.

First, suppose the substitute a gratuitous assistant. Note, then, on this occasion, the principal is that one of the two to whom the facts of the case are exclusively or mostly known: this being the ordinary case. In so far as it is to the substitute that they are best known, these evils will have no place:—

Evil 1. Augmentation, doubling at least the quantity of time consumed: instead of the party stating the case at once to the judge, the party has to state it to his substitute, and then the substitute to the judge. Be its amount what it may, this evil is a certain one, being inseparable from the nature of the case.

Evil 2. Misrepresentation applicable to every part of the whole quantity of matter of fact, which the claim on the pursuer’s side has for its ground: misrepresentation by the substitute, with correspondent danger of deception and misdecision on the part of the judge.

How infinite the diversity is, which this evil admits of, is sufficiently obvious: endless would be the task of an endeavour to delineate it.

Evil 3. On the part of the substitute, incapacity of securing attendance and narration of such evidence as the supposed percipient witness has it in his power to afford: under no obligation is this witness to afford information to any person other than the judge.

Evil 4. Probable incompleteness and undue partiality of the mass of evidence.

In this state of things, evidence not being obtainable from any witness who is not willing to furnish it—to furnish it in the first place to the applicant, and thence eventually and probably in the judicatory to the judge, at the price of the vexation inseparable from the operation,—an exclusion is thus put upon the evidence of all witnesses who are not more or less partial witnesses.

True it is, that the party himself has no more power than his gratuitous substitute to discover or secure the delivery of reluctant evidence. But for the obtaining it from the authority of the judge, such evidence as the nature of the case happens to afford, he has a much better chance, when stating the case to the judge immediately, than he can have when the judge receives it no otherwise than at second-hand, subject to the danger of omission or misrepresentation, however unintentional on the part of the substitute as above.

Now suppose the substitute a mercenary assistant.

Infinite is the augmentation which the evil receives in this case.

Engaged by sympathy, the gratuitous substitute has no interest different from that of the principal, for whom he is content to subject himself to the mass of vexation inseparable from such business.

Opposite to that of his client (for such, in Edition: current; Page: [114] this case, is the name given to the principal) opposite in every point, is the interest of the mercenary assistant.

Opposite in respect of the collateral ends of justice: for out of, and proportioned to, the delay, vexation, and expense to which the suit gives birth, are his profits.

Opposite even in respect of the main end of justice, rectitude of decision,—avoidance of misdecision, with execution and effect accordant. For out of misdecision in the suit in question, may arise an appeal, or a new and independent suit.

Obvious indeed is the check opposed to this sinister interest, by regard to reputation; upon which another obvious supposition is, that quantity of business will depend. But the more closely the nature of the case is looked into, the more feeble and inadequate will this check be seen to be. Of this inadequacy the view will be the clearer, when the force of the sinister interest is taken into consideration.

§ 4.: Parties wronged preserved from ridicule.

An effectual security for appropriate aptitude on the part of the judge, as well as all other public functionaries, is the light of publicity kept directed upon all judicial operations, in all cases except the comparatively small number in which, by reason of this or that special cause, an adequate demand for temporary privacy, or say secresy, has place.

Of this publicity, one effectual mean is liberty to all persons without exception to take notes of everything that passes in the justice-chamber; and to the report founded thereon, to give whatsoever mode and degree of publicity the person in question is able and willing to give to it.

Of the instruction thus derived, the utility will depend upon and be in proportion to the clearness, correctness, and comprehensiveness, as also the exact relevancy, of the matter to which publicity is so given. The end and purpose of it will be counteracted by every lot of surplusage, that is to say, of irrelevant matter, however in other respects innoxious.

But it will be counteracted in a universal degree, and evil opposite to the ends of justice produced, if in the account so published, mention be made of any matter, the effect or tendency of which is to bring down ridicule upon an injured individual, by whom, at the hands of the judge, relief from the burthen of the wrong is sought, insomuch that the injured suitor obtains in the chamber of justice, along with relief from wrong, an addition to, and aggravation of it.

For the prevention of evil in this shape, every judge will, in his judicatory, keep an attentive eye on whatever reports happen to be given of the proceedings in his judicatory, by the public prints.

At the instance of the party wronged, or even of his own motion, he will place to the account of defamation, and consider as a species of the offence so designated, any published discourse, any part of which has for its object the producing mirth at the expense of a person wronged, on the occasion of the application made by him for redress at the hands of the judge: calling forth mirth at his expense, and thereby inflicting on him the species of mental vexation, the production of which is among the results of ridicule.

§ 5.: Female delicacy, how preserved from injury.

In a certain class of cases, by the course of the discussion, unless the arrangements necessary for prevention be established, the sensibilities peculiar to the female sex will be liable to be wounded, and the suffering produced by wrong will thereby, instead of remedy, be liable to receive aggravation. To put exclusion upon evil in this shape, will be among the objects of the judge’s care.

To give, on any occasion, in comparison with the great majority of the people, any preference to those classes which are nursed in the lap of prosperity, would be inconsistent with the greatest happiness principle, and thereby with the spirit and endeavour of the present code. More congenial to that principle—more conducive to equality—would be the opposite course.

But by the culture given by superior education to the human mind, sensibility is on various occasions increased: insomuch, that although from exhibitions and discourses by which, in the mind of a person in a situation in life, occupying a low degree in the scale of education, no suffering would be produced: yet suffering in a considerable degree acute might be produced in the mind of a person occupying a high elevation in that same scale.

§ 6.: Vexation by cheapness of appeal obviated.

Of appeal, correspondent delay is an indispensable concomitant. Delay has the effect of injustice while it lasts. To all persons whose condition is in any way deteriorated by delay, it has vexation for its concomitant. Evil in this, as in all other shapes, it will be the business of the law to minimize. To throw needless difficulties in the way of appeal, and in particular, to load this remedy with factitious expense, or to omit any means of disburthening it of this obstacle without preponderant evil, would in this stage operate as a denial of justice, as in the immediate stage. On the other hand, as by cheapness in the initiative stage of juridical proceedings, evils would be produced if not accompanied with measures of repression for the restriction of groundless or injurious ones, so will it of Edition: current; Page: [115] necessity be in the terminative stage. To the prevention of evil in this shape, the following arrangements are directed:—

In a penal suit, if in the opinion of the judge appellate, the appeal was groundless, and to such a degree groundless, that in the mind of the appellant it cannot reasonably be supposed to have been otherwise, power to the judge appellate to add to any punishment susceptible of gradation, which constitutes the whole or a part of the allotted punishment (burthen of compensation included,) any portion not exceeding (one tenth) or (one fifth) of the punishment appointed by the judge immediate.

On the appellant, if the original decree be not reversed or modified, will fall, of course, the burthen of compensation as to all costs imposed by the appeal upon the party or parties on the other side, as well as those imposed upon such party or parties on the same side, if any, as did not join in it.

Power to the judge, in consideration of the pecuniary circumstances of the parties on both or all sides, to reduce this same burthen of compensation in such manner as to him shall seem meet, stating, at the same time, the consideration on which such reduction has been grounded.

To this head belong the arrangements by which, in the sort of case above mentioned, the appeal-warranting function is given to the quasi-jury.

Power to the government advocate, in case of a groundless demand by either party for a recapitulatory trial before a quasi-jury, to demand the imposition of a mulct, on the ground of the damage to the public by the useless consumption of the time of the judicatory.


§ 1.: Mode of transfer.

When, for the purpose of causing the defensive statement of a defendant to be received, or his testimony to be elicited, the judge of the originative judicatory proposes to transfer this operation to the judge of another judicatory, the mode of proceeding is as follows:—

1. By the appropriate mode of conveyance, the judge of the originative judicatory transmits to the judge of the proposed transfer-receiving judicatory, a missive, having for its principal purpose the causing him to fix a day, on which the defendant in question shall, by accersition, or prehension and adduction, as the case may require, be called upon, or made to attend, at such proposed transfer-receiving judicatory. Name of such missive,—Cooperative-hearing-proposing missive.

2. For the information of the proposed transfer-receiving judge, with this missive will be inclosed an exemplar of the record on when has been entered the minutes of the proceedings in the originative judicatory, down to that time.

3. To every party whose demand-paper, or defence-paper, has been received—as also to the defendant or proposed defendant, whose defenaive statement or testimony is proposed to be elicited, at the proposed transfer-receiving judicatory, another exemplar will also be delivered or transmitted: or, in case of extra-numerousness, a certain number of exemplars will be sent, for the purpose of their serving, each of them, for the use of a certain number of the parties on that side, their names being accordingly mentioned.

The form of the missive is as follows:—

To the Judge of the Immediate Judicatory R, the Judge of the Immediate Judicatory S, with brotherly regard.

brown against white.

It being understood that the defendant White has a habitation on your territory, this is to request you to name a day for the hearing of the said proposed defendant, and receiving his defence-paper, and if need be, examining him in relation thereunto, or eliciting his testimony, confessional and self-disserving, and performing any such other operation in relation to the suit, as the justice of the case may be found to require.

For this purpose I herewith inclose No. 1, containing the record of the proceedings down to this day.

When his defensive statement, with his examination relative thereto, if necessary, is made, be pleased to remit to me [] exemplars of the record of the judicial operations performed in your judicatory, together with any such judicial instruments as may, on that occasion, have been exhibited.

If, to the judge addressing, it appears that in the judicatory of the judge addressed, the suit may be more conveniently continued and terminated, or continued until a purpose therein named has been accomplished, or found unaccomplishable, in this case he will say, Be pleased to take cognizance of the suit, and continue it until, &c.; or until by compliance or execution it is concluded.

§ 2.: Testifying witness, how procurable.

If for the purpose of examination, to be performed on an extraneous witness, or on a party on either side, the originating judge refers the matter to a co-judicatory, he will transmit to the co-judicatory, for the information of the judge and all parties interested, an exemplar of the record of all proceedings in the suit down to that time.

So likewise he will at the same time transmit to the judge a letter informing him of the address of all who have appeared in person, Edition: current; Page: [116] or by proxy, as parties at his judicatory, for the purpose of their being accersed to the co-judicatory as occasion may require.

At the same time he will give his opinion as to the question, at which of the two judicatories the suit may, in the manner most conducive to the ends of justice, be further proceeded upon, and finally determined.

In case of disagreement, the judge of the original judicatory may, upon his responsibility, persevere in retaining cognizance of the suit until the termination thereof.

In this case, a party whose desire it is that the examination be taken in the post-originative judicatory may, upon his responsibility as to costs, appeal as to the point, to the appellate judicatory—to wit, to that appellate judicatory within the territory of which the territory of the originating judicatory is situated. But notwithstanding such appeal, the judge of the originating judicatory may persevere in proceeding, if, on a determinate account mentioned by him, such perseverance be necessary to the prevention of irreparable damage.

judge’s intercommunity-exercising-mandate-announcing missive.

1st Jan. 18

To the Judge immediate of Wootton sub-district, the immediate Judge of Hilton subdistrict, with fraternal regard.

brown against white.

Herewith I inclose an exemplar of a prehension-requiring mandate, directed to my prehensor John Holdfast, to be eventually executed in your territory.


§ 1.: Subject-matter.

Prehension, applied to things, will be with reference to—

1. A thing immoveable; as a house, or portion of land.

2. A thing moveable; as a horse, a cart, a bed, a painting or other product of the fine arts.

3. A stock of things moveable; such as the whole or any part of a man’s agricultural stock, or trading stock.

In each of these cases, it may be to be prehended, with or without things which in relation to it are termed appurtenances, as being in use with it.

In each case, the prehension-mandate will contain the instruction requisite for distinguishing the prehendendum, and prescribe the disposition to be made of it.

§ 2.: Purposes.

It may be, that either the existence of the subject-matter of the proposed prehension, or the place in which it is lodged, is to the judge a matter of doubt. In so far as this is the case, search for it is necessary to be made.

Of the purposes for which search may be made, examples are the following:—

I. As to persons.

1. A person whose forthcomingness is desired in the character of a defendant.

2. A person whose forthcomingness is desired in the character of a witness.

3. A person in relation to whom a suspicion is entertained, that he or she is illegally detained against his or her will; or though it be not against his will, if within age of lawful consent, by reason of infirmity of mind or body unable to give valid consent.

4. A person in relation to whom a suspicion has place, that although not illegally detained, he or she is kept in a state of undue seclusion.

II. As to things moveable

1. A thing in relation to which a suspicion has place, that it has been the subject-matter of delinquency: for example, in the shape of theft, or embezzlement, or wrongous deterioration.

2. Or that, in relation to delinquency in any shape, or right in any shape, it would serve as a source of written or real evidence.

3. A navigable vessel, or vehicle, in relation to which a suspicion has place, that on search it would be found to be a receptacle containing any such subject-matter of delinquency, or source of evidence, as above.

III. As to things immoveable.

1. A piece of ground, or building, for example, in relation to which, a suspicion has place, that on search it would, in some part of it, serve as a source of real evidence.

2. A piece of ground, or building, for example, in relation to which a suspicion has place, that on search therein would be found some moveable thing which has been the subject-matter of delinquency, as above; or a thing which would, as above, serve as a source of written or real evidence.

§ 3.: Prehension applied to persons.

Antecedently to the definitive decree, by necessity alone is arrestation of the person justifiable, or permitted.

The cases in which arrestation is ordained or permitted are those in which, but for the security thus afforded, a preponderant probability has place, that the giving execution and effect to the ordinances of the substantive law which are in question, would not be practicable.

Arrestation may have place for any of the purposes following:—

1. Punishment: in the case in which, in virtue of a judicial decree, a person having been sentenced to be subjected to corporal punishment in any shape, he not being in the Edition: current; Page: [117] power of the judicatory at the time, to subject him to the obligation imposed upon him by his sentence, the performance of this operation is necessary.

2. Stoppage of mischief, or say mischief-stopping.

3. Securing forthcomingness for justiciability; i. e. the being in an effectual manner subjected to such obligation as in the case in question the law may require the person of the party to be subjected to.

4. Securing forthcomingness on his part, for the purpose of evidence, or say of testification, for the purpose of his being subjected to interrogation in the character of a relating witness.

5. Recaption after escape.

§ 4.: Conditions necessary to justify the issuing of a warrant of arrestation.

On the part of him, who for the purpose of securing payment for debt, or the performance of any other service beneficial to himself, at the hands of the individual proposed to be arrested, requires arrestation to be made of any person by a warrant from the judge, a judicial declaration in writing to the following effect is necessary:—

I, A. P. do solemnly and judicially declare as follows:—

1. ad, in virtue of stands bound to render to me a certain service, the value of which, over and above that of any service claimed by him at my hands, is not less than [].

2. It is my sincere apprehension and belief, that unless without delay his person be arrested, and placed at the disposition of this or some other judicatory, he will, by withdrawing his person or property, or both, out of the reach of this or any other judicatory belonging to this State, effectually, in the whole or in part, evade the performance of the aforesaid service.

3. I acknowledge myself informed, that in the event of my being convicted of wilful falsehood or culpable rashness in respect of this my declaration, I shall, by the sentence of the law, be compelled to make full compensation to the individual thus injured by me, as also to undergo such ulterior punishment under the name of punishment as the law ordains; and in the event of my not being able to render such compensation, to undergo any such punishment as in lieu thereof the law has provided.

4. Moreover, that whatever may be the value of any service really due to me at the hands of the aforesaid ad, still, if for the belief, that the arrestation hereby prayed for is necessary to prevent such evasion as above, there be not seen sufficient ground, I stand exposed to the burthen of compensasation or punishment, or both, as the case may be.

In case of mere rashness, the burthen will not go beyond the full amount of compensation; in case of wilful falsehood, punishment added to the above burthen will be severe.

§ 5.: Of seizure, viz. of property, moveable or immoveable.

Seizure of things, moveable or immoveable, may have place for any one of the purposes following, viz.—

1. Punishment, viz. of the individual whose property is seized.

2. Stoppage of mischief; the property in question being either a subject-matter, or an instrument of the mischief.

3. Securing forthcomingness for justiciability.

4. Securing forthcomingness for testification; that is to say, for the exhibition of circumstantial evidence.


§ 1.: Jury in general.

English law, being the only source from whence, in any other country, any conception relative to the institution thus denominated is commonly deduced,—from this same body of law it is, that any explanation given in relation to it must be deduced. This, then, is the standard of reference which, whether any express reference be made to it or no, must hereinafter be continually borne in mind.

Taken in its most extensive sense, a jury* Edition: current; Page: [118] may be defined an occasional body of non-professional and non-official judges, employed to constitute and apply a check to the power of a professional or official judge, or body of judges.

Juries may be distinguished, in the first place, into juries employed for general purposes, and juries employed for particular purposes.

The cases in which juries are employed for particular and comparatively limited purposes, are scattered over the field of English procedure in too great variety to admit of enumeration here.

Juries employed for general purposes may be distinguished into petit juries and grand juries: petit juries again into common juries and special juries. Jurymen are the set of men by whom, in conjunction with the judge, to the end that execution and effect may be given to the laws, application is made of those same laws to the several individual cases which come before them. By what sort of men ought this application to be made?—By what, but by those on whose will it depends by what hands those same laws shall be made.

In any, and in what cases, ought a jury to be employed? Of the sort of body thus denominated, the main use is to apply a check to the power of the permanent judge, or body of judges: that power which, bating appeal, would, but for such a check, be arbitrary.

For whatsoever advantages are derived or derivable from this appendage, not inconsiderable is the price paid in the shape of disadvantage. Only, therefore, in case of necessity—only in proportion to the necessity, should employment be given to it.

1. Evil effect the first, complication.

2. Diminution made of responsibility at the bar of public opinion on the part of the judge.

3. At the charge of the individuals employed in this character, vexation, by reason of attendance; or, at the charge of the public or individuals, benefit in the shape of money, or some other shape to compensate for it.

4. At the charge of the suitors, increase given to delay, vexation, and expense of procedure.

In another work,* where punishment was the subject, the five cases in which the application of it was unapt, were brought to view: where it is groundless—where it is useless—where it is needless—where it is inefficacious—where it is too expensive. Where the subject is this appendage to the judgment seat, those same cases may help to serve for guidance.

Appeal out of the question, by how much soever too expensive, scarcely in any case could this appendage be justly said to be useless, needless, or inefficacious.

But let the public be a good one—as good as, by the help of such arrangements as the above, it might be made everywhere, and the road to appeal as easy as it might be made, appeal will, in the great majority of cases, suffice to render it needless: especially if into the judicatory of appeal this appendage be introduced.

Where neither party sees any such ground of complaint as affords hope of redress, appeal will not be made. Thus, for the reasons given elsewhere, it will be, in the great majority of cases—suppose in nineteen out of twenty. Place no jury-box in the judicatory below; place one in the judicatory above: here, by one appeal, you save nineteen juries.

Thus much as to non-penal causes.

With little variation, the same observations will be found to apply with equal propriety to such penal causes as receive that shape and denomination, for no other reason than the want of an individual party, to whom compensation can be made.

Cases where it is needless:—

In a case between individual and individual, if both parties are as well or better satisfied without it as with it, it is needless—it is worse than useless; the evil effects attached to it stand all uncompensated. Of the whole amount of the addition made by this appendage, to the expense of judicature, the effect is that of a tax upon justice: of this tax, at the charge of those who are unable to pay it, the effect is that of a prohibition. Of this prohibition the effect is, in the cases in question, a denial of justice.

In the great majority of non-penal suits instituted, there exists not any dispute: the need of judicature is on the part of the plaintiff; his demand is well grounded: on the part of the defendant, inability or backwardness has been the sole cause of non-compliance. By the extra expense attached to procedure, by the jury, inability is not removed or lessened, but increased: to the surmounting of whatsoever backwardness may have place, this instrument of complication affords not assistance, but obstruction.

Even where the cause of dispute, and dispute accordingly, has existence, the great majority of the number of individual cases are of the most simple nature: if the parties were present, from ten to thirty minutes would serve as effectually for discussion, as the same number of years would.

To the greater number of cases individually taken, rather than to the lesser, should the Edition: current; Page: [119] system of procedure be in the first instance adapted.

Causes made penal by reason of aggravation stand upon a footing widely different.

In a non-penal case between individual and individual, generally speaking, it is only by accident, and that a rare one, that the judge will stand exposed to the temptations offered by particular and sinister interest: from the magnitude of this danger, defalcation may be made by arrangements having for their object the excluding functionaries of this class from serving in districts in which they have connexions.

Not so in criminal causes.

In the most important portion of these causes, viz. that in which the alleged crime belongs to the field of constitutional law—where, in a word, the rulers as such, in addition to their share in the universal interest, possess a particular interest,—the judge who, as such, would never fail to possess (to an amount more or less considerable) interest, adds to the ostensible situation of a judge, the real character of a party, viz. on the plaintiff’s side of the cause. In these cases, nothing therefore that can contribute to the establishment of a counter-force, capable of applying an effectual check to the force of this temptation, can be either needless or superfluous. The power of a jury presents the only counter-force applicable to this purpose.

In another class of cases, though the demand for a jury is not quite so strong, it is too strong to be resisted. The offences belonging to it may for this purpose be denominated offences through indigence, or the offences of the indigent; theft, fraudulent obtainment, robbery, i. e. forcible depredation, may serve for examples. In the suppression of offences of this class, men of all ranks have, it is true, one common interest. But in proportion as the sympathy a man feels for individuals belonging to the class in which offenders of this description are most apt to be found, is faint, the check applied by this social, to the self-regarding spring of action, is weak; and the anxiety to reach the guilty predominates over the inclination to avoid striking the innocent. The indifference with which a judge habituated to the trial of causes of this description, views the conviction and death of a defendant, guilty or innocent, might be represented by the indifference with which a butcher contemplates the slaughter of a lamb, for the earcase of which he is paid—were it not for the delight, which the judge, hating and hated by the class by which his victims are afforded, extracts from the contemplation of their misery. A citizen of London will not be at a loss for an example.*

By the same causes by which a judge will be led to regard on this occasion, with less than due sympathy, the interests of those classes which he sees lying under his feet,—by these same causes will he be led to regard with more than due sympathy those interests upon the same level with his own, or above it. In England, seeing a judge guilty, as such, of a crime of any degree, from the lowest to the highest, you are determined he shall be punished,—you must murder him, for there are no other means possible: if your wish is to see yourself punished, accuse him of it: you will not miss your mark.

Of the cases treated on the footing of criminal cases, another division which may be mentioned on this occasion, is that of the offences against the revenue. For an offence of this description, neither himself nor any particular connexion of his, will the judge be in much danger of becoming the subject of prosecution. Of the class to which he belongs, and by the sympathy with which he is engrossed, it is the interest that the mass of wealth extracted from the labour of the labouring classes be as great as possible: the greater it is, the more there is of it to enrich them, and encourage others. Rather than see one guilty individual escape, what number of innocent ones he would see suffer, it is not so easy to say.

A legislator ordaining, a judge decreeing, that whatsoever a man sells that is fit to eat, (if the individual be one whom the king delighteth to honour with his punishments,) he shall be punished and ruined for it! Would you wish to see such a government, go not to Rome under Tiberius—go not to Rome under Nero;—come to England under George IV.,—look to the Treasury under Lord Liverpool and Mr. Vansittart. For a competent ground of punishment there can be no want: coffee is among the subjects of taxation, coffee is among the eatables and drinkables taken for breakfast; and the thing sold, be it what it may, is capable of being eaten or drunk instead of it.

To that division of penal cases, which are such for want of an individual specially injured, and which, from some cause or other, have escaped the being raised to the rank of criminal ones, the above-mentioned observations will be found to apply, without any variation that will not readily enough present itself.

§ 2.: Use of jury’s unamimity, causing weakness in Government.

After all, the great and principal use of jury trial has been keeping up an all-pervading weakness in the whole frame of government.

1. The state of the English people has been, in comparison with that of other nations, to such a degree felicitous, as to have been with Edition: current; Page: [120] justice styled, in the language of its rulers, the envy and admiration of the world.

2. The prosperity thus possessed has had for its cause the state and condition of the government, taken in all its parts.

3. It has had for its cause the state of the governors, with reference to their effective power over the governed.

4. But under that head it has had for its cause, not the efficiency and plenitude of that same power, but its inefficiency; not the strength of the governors as towards the governed, but their weakness.

5. It has had for its cause, not the degree in which the designs of the governors in relation to the governed have taken effect, but the degree in which they have failed of taking effect.

In England, government has had for its end in view the greatest happiness, not of the greatest number of the community, but of the comparatively few by whom have been shared among themselves the powers, and thence the sweets of government.

This state of ends in view is the result of that general habit of self-regard and self-preference which has place in the whole species, and is not merely subservient to its well-being, but necessary to its very existence.

To this rule as applied to governors (to those by whom the powers of government are exercised,) not even does the case of the Anglo-American United States afford an exception. Over the few by whom the powers of government in detail are seen to be exercised—over those in whose hands the operative branch of government is lodged, stand the many in whom is lodged the constitutive branch, with relation to these same possessors of the operative branch of government; the possessors of the constitutive power placing, either by an immediate or unimmediate exercise of that power, the possessors of the operative power; and the possessors of the constitutive power either of themselves constitute the greater number, or are so linked to them by community of interest, as that the interest of the greater number cannot be sacrificed by them, without the sacrifice of their own.

In this state of things, whatever in a different state of things would have been their wishes, designs, and endeavours, by the possessors of the supreme operative power never are any endeavours employed to give effect to that universally-natural and universally-prevalent self-preference; for where success is manifestly impracticable, neither endeavour nor design is likely to have place.

Of those by whom in this country, which is the envy and admiration of surrounding nations, the powers of government have been exercised, the wishes, designs, and endeavours never have been, nor can have been, any other than the wishes, designs, and endeavours of those by whom the powers of government have been exercised in these same surrounding nations.

But in England, several causes have concurred in preventing these wishes, designs, and endeavours, from having to so large an extent been carried into effect, as in these same surrounding nations.

Of these causes, the power that has been exercised by juries has been a principal, if not the principal one.

The causes appear to have been as follows:

1. The insular state of the country, whereby it has in an almost exclusive degree, ever since the Norman conquest, been preserved from hostile inroads, with the waste attending them, under which, at the hands of one another and the English, those other nations have so frequently and extensively been suffering. The division into South and North Britain, while it continued, formed to a certain degree an exception: say, in a word, insularity.

2. The other causes may be comprised underone general denomination—general weakness in the frame of government.

The following are the particular causes of which this general cause may be said to be composed:—

1. Jury-trial, more particularly in its application to such penal causes in which it has been the interest, real or supposed, of the monarch, and those in authority under him, that conviction should ensue.

2. A beneficial effect, and that the principal one, of the power of juries, has been the comparative inexecution and inefficiency of the design and endeavour of the other constituted authorities against the liberty of the press and public discussion.

3. The weakness infused into the general frame of government by the lawyer class, by means of the course of practice pursued by them, and rules laid down by them in prosecution of their own particular and sinister interest.

Had the measures of government had for their end in view the greatest happiness of the greatest number—had the laws and operations of government been in a uniform manner constantly directed to that end,—far from operating as a remedy to evil, all such weakness would have been itself, in the whole extent of it, an evil—an evil proportioned in its magnitude, to the importance of the parts of the law thus weakened and rendered ineffectual to those ends.

As it is, it has to a great, to a vast extent, operated as an evil: nor, in its character of a remedy to the greater evil, has its efficacy been more than partial: in particular, as to the preserving from utter destruction the liberty of the press.

Edition: current; Page: [121]

But partial as the effects of this remedy have been—partial as the effects of this, together with the other causes of debility in the form of government, have been in their character of a remedy against misgovernment,—to such a degree has the whole form of government, taken together, been repugnant to the only legitimate end of government, the greatest happiness of the greatest number, that notwithstanding the partial evils produced by, and proportioned to, the general weakness in the form of government, such is its nature, that by every fresh degree of weakness introduced into it, the interest of the greatest number is served in a greater degree than it is disserved; and supposing the weakness to end in utter dissolution, the utmost quantity of evil attendant on such dissolution would not be nearly equivalent to the quantity of good, which its certain consequence, a real constitution, having for its end in view the greatest happiness of the greatest number, would produce.

Among the laws by which the greatest happiness of the greatest number has been sacrificed to the happiness, real or supposed, of the ruling one, and the sub-ruling few, are the following:—

1. All the laws which give to the persons, property, and other rights of the monarch, and his subordinate rulers, as such, any greater security than is afforded to individuals at large. As individuals, they ought to have whatever protection is necessary: as rulers, they ought not to have any more. In the Anglo-American United States, no such extra protection is afforded them: and in the Anglo-American United States, instead of being the less secure, they are the more perfectly secure. No King of England—no other man whose seat is called a throne, is so secure against hostile attacks by individuals, as the President of the Anglo-American United States is.

2. All laws having for their object any obstruction, either direct or indirect, to the free communication of opinion in relation to matters of government on the part of individuals, whether in writing or by word of mouth. In the condition of that people may be seen, and is seen, by all that can endure to see it, the fullest proof that no restraints upon any such freedom are necessary to the maintenance of the most profound tranquillity, under a government in which the greatest happiness of the greatest number is the object really pursued. In that same example may also be seen another proof, that of all such restraints, the effect is not to cause tranquillity, union, good-will, or any other such moral instrument of felicity, but to disturb it.

Under this description come all laws against treason, and sedition—all laws against the application of the press to the purpose of indicating grievances in the government, and proposing remedies to those grievnaces or to, the purpose of holding up to view misconduct in any shape, on the part of any persons concerned in the exercise of the powers of government—any public functionaries, considered as such. And under the name of laws must be included all sham or spurious laws, as well as genuine ones: meaning by sham or spurious laws, the laws, as they are called, made under the name of rules of law, by judges, on pretence of declaring what is law; for the genuine and the spurious are so mutually interwoven, that to separate them is impossible.

Of the laws and rules of law made against the liberty of the press, the object and endeavour has been to secure not only impunity, but non-divulgation, to all misdeeds committed on the part of any of the persons concerned in the exercise of the powers of government—of the public trustees of every class—to the prejudice of those for whom, for form’s sake, they every now and then acknowledge themselves to be in trust. Laying down such a rule, was doing much farther towards the establishment of a complete despotism, than was done by those who, in Hampden’s case, sought to invest the king alone with the unlimited power of taxation, and had much less excuse for it in precedent. It was in effect an open avowal of misrule in all its branches—a declaration of war on the part of all those who bear a part in the exercise of the powers of government, against all those on whom, and at whose expense, those powers are exercised—a declaration of war by all rulers against all subjects.

Had it been carried into effect, by no imaginable particular act of oppression or depredation on the part of rulers, could resistance, rebellion, deposition on the part of subjects, have been more completely justified: for by it, the design and determination to persevere, and for ever, in every such tyrannical course, was openly professed. Had it been with any consistency carried into effect, such would have been the result: and it would or course have been carried into effect, had it not been for the power still remaining in the hands of juries.

In England, any such notion as that of suffering a judge to treat as guilty an individual who, in the opinion of a jury, had been declared not guilty, would be intolerable;—scarcely would the highest paid, and most determined confederate, or instrument of despotism, venture to accede to it: indeed, supposing it to apply to libel law, or, in a word, to any offences in regard to which the influential members of the government took any interest, juries might as well be discarded altogether. But countries are not wanting, in which an arrangement of this sort might be attended with preponderant advantage: for Edition: current; Page: [122] countries are not wanting, in which the admission of juries, with powers equal to those possessed, howsoever exercised or left unexercised by English juries, would be incompatible with the existence to any good effect of penal, not to say of non-penal laws.

Suppose the exercise of this power on the part of the judge limited to the cases in which, in the event of ungrounded punishment, the injury done by it will not be irreparable; the injury done by it would be as nothing, in comparison of the mischief that would be done, either by an unchecked jury, or an unchecked judge. To any misuse of this power on the part of the judge, checks of no inefficient nature would be applied by an adequate recordation of the evidence, and regular reports of all such cases, made to the central authority in the seat of supreme judicature: still more, if the importance of the case warranted any such expense as that of printing and publishing the evidence in the district in which the cause has been thus decided.

§ 3.: In what causes shall a jury be employed.

In no civil cause, in the first instance.

In every civil cause, in the way of appeal.

In all penal causes in which reputation is affected; viz. that class which in French law used to go by the name of grand penal. In general, not in the first instance in penal causes, by which reputation is not affected; viz. in that class which used to go by the name of petit pénal. But in all these in the way of appeal.

In English law, (with the exception of those causes of which the sort of judicatory styled a court of equity takes cognizance, and those of which, by local statutes, cognizance is given to the small-debt courts, and a few of a miscellaneous nature, of which cognizance is given to justices of the peace acting singly, or in petit sessions, or in general sessions,) every cause goes in the first instance to a judicatory with a jury in it; also in the second instance, if the great four-seated judicatory, out of which the cause was sent to the compound judicatory composed of one of the twelve judges with a jury, have thought fit to give leave.

Of the causes which are thus brought before a jury in the first instance—in the far greater number, justice is outrageously violated by the course thus taken—outrageously violated, and of course for the benefit of the class by which the violation has been established.

In by far the greater number of causes, there is nothing for the jury to do; in fact, there is no dispute. The litigation has for its cause no other than, on the part of the defendant, either inability or unwillingness to do what he is by law bound to do, and thus required to do; viz. in most cases, pay a sum of money.

Wherever inability is the cause, whatever is the degree of insufficiency antecedently to the commencement of the cause, that degree is deplorably heightened by the progress of it. By the defendant, delay is purchased—purchased at a usurious interest; and the hands by which the interest-money is received and pocketed are—instead of those of the injured plaintiff, those of the lawyer, and those of the man of finance: enormous taxes having been imposed on such chance as an injured man was obliged to purchase in the lottery of what is called justice. If the price so paid for delay, were paid in the shape of interest on the money due, the quantum of it would run in proportion to the amount of the money due: it would be proportioned to the advantage gained to the defendant by the non-payment, and to the disadvantage suffered by the plaintiff from that same cause. As it is, it bears no proportion to either standard: it is the same, whether the principal money due be 40s. or £40,000.

Of another class of cases that are brought before a jury, cognizance by a jury is not possible: the impossibility has for its cause, the time necessary for the statement and discussion of the case. In the most ordinary species of cause, the statement and discussion by advocates on both sides, the charge given by the judge, and the consideration bestowed by the jury, occupy a considerably less quantity of time, than that during which twelve men can continue sitting together without inconvenience. But there are some causes, the hearing of which in this mode could not be completed in many times that portion of time. Various are the sorts of causes thus circumstanced. The most commonly occurring sort, and those which are most readily conceived to be in this predicament, are causes of account. The attorney, and the advocate or counsel, as he is called, by whose advice a case of this sort is brought before a jury, knows full well, that by the jury, when it comes before them, nothing will or can be done in it. When the jury is sitting, with the judge on the bench above them for their direction, a discovery is pretended to be made, that in that way it cannot receive a decision. The advocates on both sides having laid their heads together, the discovery is announced to the judge—to the judge, whom long experience has prepared for the receipt of such discoveries. Then comes the necessary resource—sending the cause off to arbitration: arbitrators are then appointed, who are almost always some of the advocates themselves, or their connexions. An advocate on each side, or one chosen on both sides, now takes cognizance of the cause. The payment he receives being proportioned to the number of his sittings, he takes care that the time of each sitting Edition: current; Page: [123] shall not be too great, nor the number of the sittings too small.

The cause may be simple—at the utmost point of simplicity; and in this case happily are by far the greatest number of causes. It may be complex to the utmost pitch of complexity; and in this case are unhappily not a few. In the former case, the delay created, and expense bestowed on jury-trial, is the whole of it a waste. Simple or complex, under the English system, one jury is allotted to every cause, and to no cause more than one. Were the parties heard in presence of each other at the outset, nine-tenths would be disposed of in as many half-hours; and of the remainder there would be some in which would appear at the first hearing, from one to half-a-dozen or more points, capable of constituting each of them matter for a separate jury-trial, and capable upon occasion of being distributed, for dispatch sake, amongst as many juries.

§ 4.: Effects advantageous and disadvantageous.

Direct and indirect:—of the effects of jury-trial, this may serve for the first division.

By the direct effects, I mean those which flow in an immediate way from the causing the decision to be given by a jury,—instead of its being pronounced by a judge or set of judges,—and that are produced independently of any influence exercised by this circumstance on the conduct and character of the judge.

Consider in the first place the effects of the first order; viz. the influence exercised by this circumstance on the rectitude of the decision pronounced in each individual cause, considered without reference to other causes, and without reference to the feelings of any persons other than those of the parties to the cause, and their particular connexions.

Supposing that, on the part of the judge, adequate moral aptitude be to be depended upon, no advantage—no superior probability of rectitude of decision, could reasonably be expected, from the substitution of this everchanging judicatory, to a permanent one. Neither in respect of intellectual appropriate aptitude, and more particularly appropriate information, nor in respect of appropriate active talent, could a company of men, taken promiscuously from the body of the people, and charged, perhaps for the first time, with the function, for the apt discharge of which such close attention, coupled with so much discernment, is incidentally necessary,—be reasonably regarded as equal, much less as superior, to a man in whose instance the business of judicature has been the subject of the study, and for a time more or less considerable, of the practice of his life. But in every as yet known system of judicature, into which jury-trial has not been admitted, appropriate moral aptitude has been upon sa bad a footing, that the comparatively greater moral aptitude, which has in practice been given to juries, has more than compensated for whatever deficiency has had place in their instance, in the article of intellectual aptitude, and that of active talent.

As no cause is ever submitted to a jury but in connexion with a judge, to whose instruction they are, by the force of known usage and public opinion, predisposed to have regard, the appropriate information of the judge, whatever it be, is customarily at their command; and it is only by some particular and not customary direction given by them, with or without reason, to their will, that this supplement to their own inbred intellectual aptitude can fail to be turned to use: and where moral aptitude fails, insomuch as the judge is disposed by any cause to decide in a manner contrary to that which, in his eyes, is justice, the probability of rectitude of decision is, instead of being increased by superiority in appropriate intellectual aptitude or active talent, proportionably decreased.

Note, at the same time, that means exist whereby moral aptitude on the part of the judge may be placed on a much firmer footing than it has ever been as yet, and at the same time be made to receive increase.

One point there is, in respect of which, on the part of the judge, if jury-trial be not employed, appropriate moral aptitude never can with any sufficient ground of assurance be depended upon. This is freedom of bias, whether on the score of pecuniary or other interest, or on that of sympathy or antipathy produced by party affections, or propinquity, or remoteness in respect of rank.

Now as to the effects of the second order. By these I understand, the effects produced by the decision, in the cause in question, on the minds of the several persons within whose cognizance the case in question, in the state in which it presented itself to the judicatory, may happen to come. In this class of effects will be seen to lie the chief and most incontestable of the advantages attendant on the compound judicatory thus constituted.

In the case of misdecision, this class of bad effects consists of danger and alarm—danger of misdecision in future suits, from the influence of the same cause, whatever it be by which misdecision in the past cause was produced—alarm produced by the contemplation of this danger.

In the whole of the judicial establishment, suppose but a single judicatory: for simplicity of conception, call it that of a single judge, habitually exposed to misdecision—for example, by the most natural and common of the causes by which such disposition is liable Edition: current; Page: [124] to be produced; viz. by love of money. In such case, the place of general security is occupied by general alarm. No man, who either by poverty, or probity, or consciousness of want of skill to perform with success the process of corruption, regards himself as able to defend himself against a competitor who to the disposition adds the ability to practise corruption; nor can he avoid regarding his property as being in a state of perpetual insecurity. Even he who, to the ability adds the disposition to give a bribe, cannot but regard himself as placed in a correspondent state of insecurity with respect to such part of his property as would be eventually necessary to compose the bribe. Even suppose corruption in a pecuniary state effectually guarded against, still there remain favourable partiality on the score of sympathy, unfavourable partiality on the score of antipathy, as towards individuals individually taken, or as towards all the individuals in general, of whom is composed a party in the state.

See now how the matter stands in regard to the effects of the second order. In the cause in question, misdecision suppose has had place; a wrong verdict, a verdict generally regarded as wrong, has been pronounced. On the feelings of the public at large—of that part of it by whom cognizance has been taken of the cause—what are the evil consequences? Answer, none: Danger, none: Alarm, none. That jury has judged wrong; but that jury is no more. True it is, that by the same causes by which misdecision has been produced in the instance of that jury, the like effect may, for aught anybody can say, be produced in the instance of any other juries. True this, and what nobody can deny. Still, however, neither the alarm, nor even the danger, is in this case anything considerable, in comparison of misdecision on the part of a judge, when produced by any permanent, extensively operating, and well-known mental cause. In nine cases out of ten, perhaps nineteen cases out of twenty, on the part of the jury misdecision will not have place; for in some such proportion are the causes which (being defended through inability to do what should be done, or through perverseness) do not admit of doubt; and in causes in any proportion, evil disposition as above might produce misdecision in the case of an unchecked judge. But be the danger ever so small, the alarm will be still smaller. To this difference contribute several causes:—1. The general prepossession in favour of this mode of trial; and, 2. The confidence which, setting aside the causes of mistrust, men naturally have in their own good fortune.

English law may furnish a familiar example. Prosecutions for alleged libels, and other offences against government, frequent: verdicts, some for the prosecutor, the government; some against it, for the defendant. Now suppose these causes, all of them, tried by any judicatory of four of the twelve judges, or by any one judge of any such judicatory, and in both cases without a jury,—who is there of any party, by whom, antecedently to trial, any the least doubt could be entertained but that a decision affirmative of the guilt of the defendant would be the result?

Another division, in which the effects of this institution may be considered, is the following:—

I. Applying itself to the situation of the judge, it has a strong and incontestable tendency to give increase to his appropriate official aptitude, considered in all its branches.

1. To his moral aptitude it gives increase, by the obligation it imposes upon him, of giving, with reference to justice, the best appearance possible to everything which, on the occasion in question, he does or says. In so far as upon the effect of what he does or says depends the decision given by the jury—only in so far as what he does and says, has in their eyes the appearance of justice, can he hope to exercise any influence upon the decision they are about to pronounce. Take away the jury, the judge does exactly what he pleases: if he pleases, he says whatever he pleases, and as little of it as he pleases. If so be that, in the individual cause in question, he is bent upon injustice—if in support of the decision which he is determined to pronounce he can find anything to say which in his eyes is plausible, he will, if he thinks it worth while, say as much accordingly: if he be unable to find anything that is thus plausible, or the trouble of doing so is in his eyes too great, he will say nothing at all, and his will will not the less be done.

2. Appropriate intellectual aptitude, including appropriate professional information.

In this particular, the salutary influence of the necessary presence of the jury, and the demand it may be continually creating for appropriate discourse delivered by him to them in the presence of a company of spectators, contributes in a powerful and incontestable manner to secure the interests of justice—at any rate, against inaptitude in any manifest or flagrant degree, in respect of this branch of appropriate aptitude.

3. Appropriate active talent. Without any considerable difference, the above observations apply to this branch likewise of appropriate aptitude.

Set aside the institution of a jury, the most complete corruption may be united with more than ordinary intellectual weakness and ignorance, and more than ordinary deficiency in respect of faculty of expression, and still the man be not incapable of giving effect to his will in the situation of a judge. For his decision, be it what it may, expression must Edition: current; Page: [125] be found. But when that is done, all is done that is necessary for him to do: the least said, says the proverb, is soonest mended.

II. General effect on the minds of men in the character of jurymen.

The effects of the institution on the minds of the men to whom it happens to find themselves in a state of exercise in the situation in question, are not less salutary nor less incontestable. Every judicatory of which a jury forms a part, is a school of justice: without the name, it is so in effect. In it, the part of master is performed by the judge; the part of the scholars by the jurymen; and what takes place, takes place in a company more or less numerous of spectators. The representation there given is given by a variety of actors, appearing in so many different parts. There are, at any rate (or at least there ought to be, where no bar is set by special and preponderate inconvenience,) the parties on both sides: on one or both sides there are commonly witnesses: there are but too commonly professional lawyers, in the character of advocates; and there are, still more too commonly, others in the character of attorneys. By the various parts in which these actors in the judicial drama appear, and by the various casts of character exhibited by different individuals in each part, affections of all sorts in the breasts of jurymen are excited, and the attention fixed; and the reasoning faculty, with matter infinite in variety for it to operate upon, is continually called forth into exercise.

The inconvenience which, in the shape of labour and corresponding expense to the individual jurymen, if uncompensated, or to the public purse if they are compensated, constistutes a drawback which there will be occasion to speak of in another place. Against that loss on this score, will be to be set the profit on the above score—and that, it may be seen, is no inconsiderable one.

These benefits, it may be seen, may be attained, if not in a perfectly equal degree, not very sensibly less than equal, so as a verdict be but given by the jury, whether that verdict be or be not binding upon the judge.

Of the good effects actually produced by jury-trial in particular causes, over and above its general and more extensive influences as above explained, much will depend upon the state of the law. In proportion as the law is clear, the power given to the jury in form, will be exercised by it with effect; the verdict given by the jury will be the expression of their will, acting under the guidance of their understanding. In proportion as the law is otherwise than clear, the verdict given in form by the jury will in effect be the decision of the judge; it will be the expression of his will, in the giving effect to which his understanding, such as it is, and his active talent, such as it is, assisted by such appropriate professional information as it has happened to him to lay in a stock of, will have been employed. Thus it is, that under an all-comprehensive code, especially if accompanied with an apt Rationale, a jury will be quite a different sort of instrument from what it is under the generally prevalent mixture (composed in indeterminate and ever-varying proportions) of statute-law and common-law,—that is, of really existing law, and that counterfeit species of law which has been imagined and framed on each individual occasion by the judge in question, and his predecessors.

The branch of law, with relation to which the usefulness of jury-trial to the greatest happiness of the greatest number is most conspicuous and most unquestionable, is the penal branch. The feature by means of which it is productive of this beneficial effect, is the universal concurrence, so erroneously termed unanimity.

The effect by means of which it is productive of this benefit, is by infusing a general weakness into the powers of government: into the powers of government taken in the aggregate, but more especially when considered in relation to the people.

In England, the sacrifice made of the greatest happiness of the greatest number, to the happiness, real or supposed, of the monarch, has been less in proportion than in any of the monarchies of the continent of Europe. Of this difference, whatever it may be, the cause will upon examination be found to be in the weakness of the government as towards the people. In England, several causes have concurred in the keeping up of this weakness. As to those other causes, they are beside the present purpose. The only one that belongs to it, is the weakness, in so far as produced by jury-trial, with its unanimity in penal causes.

Had it not been for this weakness, the condition of Austria would at this moment have been the condition of England. George the Fourth would have been in England, what he is in Hanover: in the one country, as in the other, the people equally poor, and equally miserable. From what he is in one country, may be seen what he would be in the other.

The benefit produced by jury-trial with its unanimity, is produced by striking the laws every now and then with impotence. The law is the work of the king: and in the production of the work he has two instruments—the houses of parliament taken together, and the supreme judges.

The houses of parliament make law in one way: the judges make what they call law, and what has the effect of law, in another way.

The law, by whomsoever made,—being made, not for the benefit of the greatest happiness of the greatest number, but for the Edition: current; Page: [126] benefit of those by whom it is so made,—is made of course principally for the benefit of the king, in which way soever made.

By whatsoever laws, by the good, or supposed good, done to the king, evil to a greater amount is done to the greatest number,—it is for the good of the greatest number that those laws should remain in the greatest possible degree unexecuted and inefficient. Of the laws which have this effect, so great is the extent, that rather than the effect of those laws should not be weakened, it is for the benefit of the greatest number that the effect of the whole body of law taken together should be weakened.

In England, the superior judges,—more particularly those of the King’s Bench, are in possession and exercise of a power, the exercise of which is of itself sufficient to the establishment of the most tyrannical despotism. They take a word or a phrase, and in the use they make of that phrase they find a pretence, and that an unquestionable one, for inflicting punishment without stint, on any person they please, for any act they please.

The phrase contra bonos mores, Latin as it is, serves them for inflicting punishment without stint on all persons by whom any act is done, which does not accord with the notions they entertain, or profess to entertain concerning morality.

The phrase, Christianity is part and parcel of the law of the land, serves thus for inflicting punishment without stint on all persons by whom any act is done, which does not accord with the notions they entertain, or profess to entertain, concerning Christianity.

The word conspiracy serves them for inflicting punishment without stint on all persons by whom any act is done, which does not accord with the notions they entertain, or profess to entertain, concerning the act in question.

It is not true, it may be said, that any such despotism is in their power; for above them sits parliament; above them also in parliament, a king who can do no wrong, nor would suffer wrong in any such shape to be done. For, not to mention the wrong which in this case would be done to subjects, a despotism thus established would be established in contempt of the authority of parliament.

Yes: thus much is sure enough; namely, that without the consent at least, not to speak of anything more than consent, of the man who can do no wrong, no wrong in this shape can be done. But in this shape, and by such instruments, by the man who can do no wrong, wrong to any amount can be done, in a manner at once more effectual, and in a variety of ways more commodious, than by any such an unwieldy instrument as that called parliament.

He can do no wrong, because wrong becomes right by his doing it. As the God which is in heaven can commit no sin; so the God which is upon earth—the God of Blackstone’s creation and of all men’s worship, can do no wrong.

The beneficial effects of jury-trial are produced in a different shape, in the civil branch and in the penal. In the civil branch, it is by applying a bridle to arbitrary power in the hand of the judge: in the penal branch, as we have seen, contributing to infuse weakness into the body of the law.

Under governments in which the institution of a jury has no place, the judges not being in those countries, removable, either immediately or unimmediately, by the power of the people, a man who upon any account sees an adversary in the person of the judge, may behold in that functionary a tyrant, from whose power (which may be sufficient to effect his ruin) he sees no possibility of escape. From a situation thus distressing, the institution of a jury affords relief. Suppose a man to have suffered on one occasion—suppose a man to have suffered from enmity in the breast of one or more of the jurymen, no such sensation as that of inevitable oppression presses upon him: what he has an assurance of is, that a jury composed of exactly the same individuals will not have to try him on any other occasion; what he may at the least have the hope of is, that on a jury sitting on another occasion, the same adversary or adversaries will not have place.

In the penal branch, the like good effect is produced in the same way; but in the penal branch, to that good effect, another, and still more important, is added. In the penal branch, the institution of a jury contributes, in conjunction with other causes, to the production of that weakness in the law, to which this country—which in this case is looked to as a pattern, and from which all conceptions on the subject of jury and jury-trial are taken—is mostly indebted for those liberties, by which it is distinguished from other countries. It is from the circumstance of unanimity that the effect is produced. By a single individual out of twelve, the hand of the law is capable of being paralysed.

In consequence of this unanimity, i. e. in consequence of its necessity to conviction, it is in the power of any one man, by surmounting the patience of the rest, to command the verdict, and thereby, be the law and the fact ever so clear in the condemnation of the defendant, to produce his acquittal.

In this false declaration of unanimity may be seen the cause of almost the whole of the afflictive confinement which at present has place in the case of juries. The unanimity out of the question, the verdict would be decided by votes; and in the ordinary state of things, Edition: current; Page: [127] the voting would take place immediately upon the delivery of the charge by the judge. In two cases alone would any delay in the delivery of the verdict have place:—1. If in the instance of this or that juryman, a desire were expressed of receiving instruction from any other. 2. If by this or that juryman, a desire were expressed of communicating instruction to this or that other, or to the rest.

§ 5.: Proposed unimpowered jury, its uses and regulations.

The only circumstance in which the species of jury here proposed differs from the jury in use is this:—viz. that whereas the decision pronounced by the actual jury is—bating some special and assigned cause of nullity—binding upon the judge, the decision of the proposed unimpowered jury is, as the denomination here given to it imports, not binding upon the judge.

In general terms, the use of the unimpowered jury consists in this:—viz. in its capacity of being introduced into any country in which the state of society is regarded as not being sufficiently advanced to render it conducive upon the whole to the purposes of justice, to vest any such power in the great body of the people.

A country may be supposed, in which, though the great body of the people are not in so advanced a state as to render it eligible to repose this power in their hands, yet this may not be the case with a certain distinguished portion of the people, who on this occasion may be distinguished by the appellation of the higher orders. Admitting the existence of such a distinction, it may be a question whether it might not be more conducive to the greatest happiness of the greatest number to attach to the judicatory an unimpowered jury, composed altogether of the lower orders, than an ordinarily impowered jury composed exclusively of the higher orders, or conjunctly of the higher and lower orders.

But to take the more simple case in which, without distinction of orders, the supposition is that the state of society is not such as to admit of an impowered jury, of whatsoever materials composed.

In this case, without any the least prejudice to justice, the advantages belonging to an impowered jury may to a considerable degree be given to, or rather would of course have place in the case of, this sort of unimpowered jury.

1. In the first place, there would in this case, as in the other, be the same sort of aid to, and security for, the appropriate aptitude, intellectual as well as moral, on the part of the judge.

2. In this case, as in the other, the people would, in every judicatory to which this appendage were attached, behold a school of justice.

Regulations in the case of an unimpowered jury:—

1. The question will be to be reduced to a single alternative: an option to be made between two mutually contradictory propositions: Examples, guilty or not guilty? for the plaintiff or for the defendant?

2. The number of persons in the jury, odd, viz. that in every instance a majority may have place.

3. Mode of voting, secret, otherwise termed by ballot.

4. On hearing the decision, the judge does in regard to it as he thinks proper: he either reverses, or confirms it with the exception of such alterations as he thinks fit.

5. In the books of the judicatory entry is in each instance made of the verdict pronounced, and of the course taken by the judge in relation to it as above.

By comparison of different periods, the advance made in the state of the public mind may be ascertained. The smaller the proportion of the cases in which the verdict is reversed or altered, to those of the cases in which it stands unchanged, the greater the progress made by jurymen in the character of scholars in this school of justice.

Not in the lowest stage of society, actual or possible, can any conceivable mischief be produced, by the intervention of a popular judicatory thus destitute of all power of doing mischief; and sooner or later, by this institution alone, would the state of society be raised from the lowest level to the highest. By way of encouragement, that the men thus placed in a sort of judicial situation may be impressed with a sense of their own dignity, and their functions be an object of desire and source of satisfaction rather than aversion, a station somewhat elevated and ornamented should be assigned to them, with something of a decoration to be worn about their persons.

§ 6.: Jurymen who? What persons should be capable of serving as jurymen.

Answer: Generally speaking, under a system of universal or virtually universal suffrage, as under the most popular of the American United States, take for the general rule all persons of the male sex who are of full age and are able to read. For the mode of ascertaining the reading qualification in the most commodious manner, see Bentham’s Radical Reform Bill.

In that case no exceptions were needful. Why? Because the aggregate number of all the persons of different descriptions, against whose admission any valid objection could be raised, was in that case not considerable enough to produce any well-grounded apprehension of their exercising an unfavourable Edition: current; Page: [128] influence on the result; and because, each person delivering his vote separately, no person would be exposed to experience annoyance in any shape from any other. Delivering a vote in an election requires nothing but a will: an understanding? yes, this likewise; but an understanding which always can, and without impropriety may, have taken another understanding for its guidance.

Not so in the case of a jury: each man’s understanding is, by the incident of the moment, and in a state not prepared for the occasion, called into exercise. It may, it is true, take another understanding for its guidance, but ere it can have made choice of any such directing understanding, it must itself have been put in exercise.

In the case of the election, the influence of any one vote on the result cannot be otherwise than extremely small. In the case of the jury-trial, where, as in Scotland, unanimity is not necessary, a single vote may suffice to determine the result.

In the case of the election, each voter appearing upon the spot and delivering his vote separately, no one individual is exposed to annoyance at the hands of any other. In the case of the jury, it being necessary that they should sit all of them in company of each other, it may happen, that by a single individual in whom the capacity of producing annoyance in this or that shape, with or without the inclination, has place, annoyance may be produced in such shape and degree as may suffice to give disturbance to the whole operation: in such sort that misdecision, or more naturally non-decision, is produced, not to speak of the discomfort produced at the same time to the individuals.

With what degree of frequency is it desirable that within a given length of time the function of a juryman should by the same individual be exercised?

There are considerations which operate in extension of the time; others which operate in limitation of it.

As to the direct and particular use of the institution, the more frequently this function comes to be performed, the more experience the individual gains, and the more fitted he is thereby rendered for it.

Under the head of uncompensated labour, which is as much as to say expense,—the greater is the hardship, the heavier is the tax which is in this case imposed.

Another inconvenience is, that, in proportion to this frequency, the condition of the juryman is made to approach that of the permanent and official judge, and thereby the inconveniences attached to such permanence are brought into existence.

When considered in the capacity of scholars in the school of justice, the more frequently those who have been entered into this school are exercised, the greater will their proficiency be: then, on the other hand, the more frequent the exercise given to those who are thus entered, the smaller is the number of the members of the community to whom, in this character, the instruction is imparted.

The two evils, the exclusion of which is on this occasion to be avoided, are—the punishment of non-offenders, and the non-punishment of offenders.

I. Against the punishment of non-offenders, the following are the modifications that present themselves:—

1. Necessity of unanimity to warrant conviction and punishment.

2. In case of dissentience, necessity of a majority. This majority is in its extent absosolute and relative; susceptible of degrees, of which the highest is that in which the minority consists of no more than one; and the lowest, that in which the majority exceeds the minority by no more than one.

To contribute to the effect desired, it is not necessary that the want of unanimity, or of that extra-majority which is thought fit to be required, should have for its effect acquittal, and the consequent exemption of the accused from all punishment. Its effect is capable of being limited, to the giving him exemption from the highest degree of punishment, or from the highest and the next to the highest, and so downwards, in the scale of punishment.

Of this modification the usefulness is more particularly conspicuous and undeniable as applied to irremediable punishment, and in particular to that mode of punishment which alone is completely and absolutely irremediable, viz. mortal punishment.

Note, that the greater the absolute number, i. e. the total number of those of whom the jury is composed, the greater is the greatest relative number of which the ultramajority is capable of being composed.

II. Non-punishment of offenders.

From the giving to a single acquitting voice, or any other such small number of acquitting voices, the effect of producing total or partial exemption from the appointed punishment, follows inconvenience; that is to say, danger of non-punishment of offenders.

The case of corruption is the one most easily provided against; at any rate, that corruption, to the application of which no antecedent intercourse or particular connexion is necessary.

The following are the arrangements by which, in correspondent proportion, the difficulty that attaches upon the application of the corruptive influence may be increased.

1. Increasing the number of the minority necessary to overrule the opinion and will of the majority.

2. Subjecting the choice of the jurymen on Edition: current; Page: [129] each occasion to the power of chance, and at the same time giving to the interval between the election thus made, and the delivery of the verdict, the shortest duration possible.

Not slight is the grievance produced by so large a number as twelve, so inexorably required in all cases. For the correction of it, we need no other instruction than that which is afforded by the instances in which superior power is lodged in less trustworthy hands.

True it is, that there have been twelve apostles. Before them, there were twelve months in the year, twelve divinities of the highest class, and twelve divinities of the next highest class. Since then, there have been twelve Knights of the Round Table of King Arthur.

In the case of jurymen, as of all other functionaries, the problem is, how to secure on their part, with reference to their function, the maximum of the aggregate appropriate aptitude.

In this instance as in others, elements of appropriate aptitude, three,—viz. appropriate moral aptitude, appropriate intellectual aptitude, and appropriate active talent: branches of appropriate intellectual aptitude, two,—viz. appropriate knowledge, and appropriate judgment.

Of these elements, the first in the order of consideration, and as it should seem of importance, is appropriate moral aptitude. But for no one of these three elements, can any proper provision be made, without consideration had at the same time of the other two.

As to appropriate moral aptitude. For securing this quality, reference must be made to the causes of relative inaptitude. For securing aptitude, the course to be taken will be, to counteract the influence of these sinister causes.

For applying the proper remedy against delinquency, the first thing to be done is to bring to view the source of the correspondent temptation.

This will be, on questions between individual and individual, partiality in favour of either side to the prejudice of the other: on a question between individual and government, partiality in favour of either side to the prejudice of the other.

As to this matter, partiality in favour of the individual, to the prejudice of the constituted authorities as such, is of course in any individual instance possible. But what is beyond comparison more probable is, partiality in favour of government, to the prejudice of the individual; so much more ample and securely efficient are the means of rewarding, and thus procuring partiality, in the hands of government, in comparison with the most efficient means that can be generally employed by individuals.

Widely different, in respect of the amplitude of the source and probable degree of efficiency, is the temptation in favour of any individual, compared with the temptation in favour of government, which is, in respect of quantity, practically speaking, infinite; and in respect of constancy, applying itself in every case in which, avowedly or unavowedly, government has any concern.

In favour of an individual, it is only in a comparatively small number of cases that partiality can find means to operate with any chance of success.

On this side, partiality will require to be distinguished into natural and factitious.

For examples of natural partiality, take the following:—

1. The jurymen having a natural, though more or less remote and undefined, and thence an unseen, interest, in a pecuniary or other shape, in the event of the cause.

2. Jurymen, in this or that proportion of the whole number, having connexion in the way of interest, or sympathy, with a party on either side of the cause.

3. So a feeling of hostility in the way of antipathy.

Now as to temptations in a factitious shape, those of a pecuniary nature are at once the most obvious and the most extensively applicable. The act by which temptation of this nature is applied, and applied with success, is, if it be in a pecuniary and tangible shape, termed bribery; or if in a less tangible shape, corruption; though even in any case in which the word bribery is employed with propriety, so may the word corruption: corruption being the genus, bribery one species of it.

Much more difficult to contend with is the case where the source of the temptation is natural, than where it is factitious. Where it is factitious, you may by means of dispatch prevent the application of the instrument of temptation: where it is natural, the instrument of temptation is already applying itself in all its force.

§ 7.: Jury appointment.

By whom should the members of a jury be appointed?

Answer: By no man, but by fortune. Man has sinister interests; fortune has no sinister interests. Under man’s appointment, justice would have no even chance; under fortune’s appointment, she will have an even chance, and that is the best chance that can be given to her.

Whatever benefit has resulted from this appendage to the judgment seat, has been produced by its applying as a bridle to arbitrary power, in the hands of the judge, and those in whose particular and sinister interests he is a sharer. From a bridle, his endeavour has of course from first to last been, to convert Edition: current; Page: [130] it into a cloak, and thereby into an instrument.

The individuals who, on the occasion of each cause, serve in this character are, or at any rate are supposed to be, a minor assemblage, a comparatively minute body, taken out of a comparatively large class. In each instance, therefore, the composition of the jury depends upon two distinguishable circumstances: 1. Upon the situation in life of the individuals composing the class out of which the selection is made; 2. On the situation of the hand or hands by which the selection is made.

In so far as the appointment, by which, in the individual cause in question, the members of the jury are determined, is regarded as having for its cause, avowed or concealed, the will of this or that person, whose will could not, consistently with the acknowledged design of the institution, be thus employed,—the operation, by which effect is given to such will, is called packing.

The class out of which the selection is made, suppose it, in the whole or in the greatest part, composed of individuals whose place is among the ruling few,—or whose eyes, with a view to the advancement of their interests, are habitually fixed upon the ruling few: packing is thus far established, and established by law. Suppose the form of government an aristocracy: here we have a system of packing for the purpose of aristocratical sinister interest.

Suppose the form of government a monarchy, with an aristocracy under it, with or without a colour or shade of democracy: here we have a system of packing established for the purpose of a combination of monarchical and aristocratical influence.

Suppose the composition of the class out of which the selection is made, in a certain degree mixed—some of the individuals, sharers in the particular and sinister interests, others not: in this case it is, and in this alone, that it may be matter of importance what the bands are by which the selection is made. If these be the hands of an individual or individuals belonging to the tainted class just mentioned, as well might the jury be composed exclusively of such hands without any mixture.

From the above considerations result two practical conclusions:—

The body out of which juries are respectively selected should be either—

1. Of the individuals possessing the right of suffrage* in the election of members of the representative assembly under the system of virtual universality of suffrage,—all such whose residence is within the judicial district in question; with the exception of a few classes, such as insane persons, criminal convicts, &c., whose interference, though without effect in that case, would not be without effect in this;—or,

2. A select body, thence not so numerous as that all-comprehensive body, but still amply numerous in comparison of the number of the jurymen, who for the purpose of one or more causes are appointed for one and the same day’s service: the body of electors by which this election is performed, the same as that just described.

In either case, fortune’s will be the most proper hands by which, for the purpose of each individual cause, the selection can be made.

Fortune is not exposed to the action of sinister interests, of interest-begotten prejudices, or authority-begotten prejudices: every human being is. If the design had really been to prevent the selection of the jury from being rendered partial, and conducive to misdecision, by the influence of those causes, it is to fortune, and not to any human being, that the selection would have been committed. Throughout the whole of the system of which jury-trial is a part, two objects—two intimately connected objects, have been aimed at, in so far as circumstances have admitted, by the workmen employed in the fabrication of the system, viz. the lawyers,—and the kings, whose dependent creatures and instruments they always were;—viz. to secure the real existence and efficiency of partiality in their favour, and to secure the appearance of impartiality. When a man is to make this selection, scarcely in one instance out of twenty will partiality be really without a place in this selector’s mind: scarcely in one instance out of twenty, be the partiality ever so strenuous, will there be any outward and visible sign of it. Look over the table of “Springs of Human Action.” That table now lies before me: sixteen is the number of different ones you may see, no one of them less capable of determining and misleading conduct than another: sixteen different sorts of interests, every one of them capable of acting with effect in the character of a sinister interest: sixteen, of which the love of money is but one. In all times, and with the exception of the metropolis, in all places, the sheriffs have been the absolutely depending creatures of the king, placed by the king, engaged in pecuniary accounts with the king, and for the difference between profit and utter ruin, depending on the uncontroulable will and pleasure of another set of dependent creatures and instruments of the king—the barons of his exchequer, judges of the great judicatory of accounts between him and his defenceless subjects.

The judges were placed and displaceable by the king. The sheriffs were placed by the Edition: current; Page: [131] king; and at the end of each year, each one of them of course gave place to another, placed in like manner by the king. The jurymen were placed by this creature of the king; and at the end of each short length of time—call it term, call it assize, call it sessions—gave place to another set, selected by the same or another hand, in that same place. In this state of things, wherever the king or any individual dependent on him possessed, in any shape, an interest in the cause, think what would have been the real efficiency of any measures having for their professed object the securing of impartiality in the administration of justice.

By the combination of the two modes of appointment above mentioned, the useful purpose of the institution might in a certain respect be forwarded. Of the jury in each cause, the greater number might be taken by lot out of the all-comprehensive body of electors: one, or some other such small number, out of the select body. What is here assumed is, that it is with a view to superiority in intellectual aptitude and active talent, that the selection is to be made.

Here, then, by the major portion in whom, in respect of appropriate moral aptitude, the reliance is,—obsequiousness or resistance to the guidance of the select few will be manifested, according to what, in their eyes, are the dictates of justice.

The right of expunction, shall it be allowed to the parties?

The room for the exercise of it will depend on the number selected in the first instance.

To any approach towards a satisfactory solution of this question, much more detail would be necessary than the present design could afford.

Serious objection, however, is not altogether wanting. To the party in the wrong, supposing him conscious of his being so, an advantage having place to an extent to which no limits can be assigned, is thus given. Proportioned to the reputation for appropriate aptitude, in all its several elements, possessed by the eventual juror, will be the eagerness of this self-condemned party to put an exclusion upon so assured an adversary.

In election committees of the English House of Commons, this effect of the right of expunction has been matter of experience and remark. Knocking out the brains of the committee, is the phrase by which the expunction has in this case been designated. Of the three elements of appropriate aptitude, intellectual aptitude and active talent have been the two only ones in view. For reference to appropriate moral aptitude, cutting out the heart of the committee, or something to this effect, would be necessary, if, in a body so composed any such organ as a heart could have place.

§ 8.: Securities for appropriate aptitude.

In the determination of the individuals serving as members of this obligatorily attending committee of the public-opinion tribunal, the appropriate aptitude of the parties must be kept in view.

Deficiency in appropriate moral aptitude will be corruption, or have corruption for its cause. Corruption is in this case either precedental or subsequential; namely, with relation to the time at which it is believed, or more or less likely to be believed by the juryman, that, on the occasion of the suit or cause in question, he will have to serve.

Of precedental moral inaptitude, the most extensive causes, in a republican state, are antipathy and sympathy on the ground of party. To evil from this source, the nature of the case excludes the possibility of any completely effectual remedy: all that can be done towards it, is by power of dislocation given to the parties on each side. In this case, in so far as the proposed bias of the jurymen in attendance is known or conjectured, those on both sides against whom the persuasion or suspicion applies with greatest force, will on each side, if the faculty be given, be dislocated.

In the language of English law, dislocation thus applied, is challenging.

In a monarchical state, supposing any such institution as that of a jury admitted into the judicial system, the system of corruption inseparable from the government will have infused and kept up throughout the whole population, an all-pervading spirit of party sympathy and antipathy, altogether incompatible with right decision in any sort of suit or cause to which it applies.

Partiality from a public cause may be more or less open and exposed to general knowledge or suspicion: partiality from a private cause, much less so.

In the case of a jury, after the exhaustion of the whole stock of possible remedies which the nature of the case admits of,—self-regarding-interest-begotten, sympathy-begotten, antipathy-begotten, and prejudice-begotten partiality, to a vast extent, will have place: and that in such force, that misdecision will continually be the result of it.

Such will be the case, whether the part taken by each juryman be known or unknown—unknown, in so far as the nature of the case admits of its being so; which cannot be the case, but to an extent in a considerable degree limited.

If, as is throughout the case in English, practice, the decision is represented as unanimous,—here, that which to no person can be unknown is, that by every member of the jury, concurrence in the obnoxious decision was given; for who the members of Edition: current; Page: [132] the jury are, is seen by all present in the judicatory.

Here, then, are all twelve—that being in every case the number—exposed to the enmity of all those to whose wishes the decision is adverse.

A case that may very well happen, and that cannot but happen, is, that without its being either known or suspected, jurymen, one or more, may have a pecuniary interest in the event of the cause—an interest equal, or in any degree superior, to that which any party has on either side. Here, then, is inducement sufficient to cause a single man to produce by the characteristic torture, on the part of all the others, accession to his side. For submitting to it, his compensation may be ample to any amount, while in the instance of no one of the whole number with whom he has to contend, has compensation place in any shape.

Suppose a majority to be admitted to determine the decision; and, in the first place, suppose the side taken by each known in every case, no expedients being taken in the way of concealing it. In this case, the moral corruption, the solemn insincerity and mendacity, is excluded. But the exposure to ill-will, with the attendant inducement to partiality and misdecision through fear, is rendered still more certain and extensive; not one of the jury but makes to himself, and stands for ever exposed to, a host of adversaries—all those without doors whose affections are on the opposite side.

On the other hand, on this supposition, the part taken in the decision by each juryman is exposed to the tutelary action of the public-opinion tribunal. Here, then, is the breast of the juryman acted upon, and agitated by, conflicting interests: as between right decision and misdecision the uncertainty is entire, the suffering certain, and to an unlimited degree capable of being intense: the option may be between having the good opinion and good-will of all persons but one, with whom he has any particular connexion in the way of interest or sympathy, and the forfeiture of the good-will of some one, on whose good offices the whole prospect of his life depends.

Suppose, now, the decision of the majority sufficient, but secresy, by expedients more or less efficient, endeavoured to be preserved—preserved, in a word, by the most effectual of all expedients, suffrages given as in the case of a well-conducted ballot, with all the secresy which the nature of the case admits of: to all persons without doors, the result, in respect of numbers on both sides, known and declared: this, and nothing else.

Still as between juryman and juryman—between each one, and one or more, or all of his fellows—the secresy will be in a high degree uncertain.

For the sake of securing in every instance a majority on one side or the other, the number will of course, in that case, be an odd one.

In the case of the smallest odd number, the non-secresy will be complete: numbers in this case, two to one. Each one knowing on which side he himself has voted, will know, if he be the only one on his side, to a certainty, on which side the two others have voted.

If, indeed, he be one of the majority of two, what is possible is, that as between the two others he will not know to a certainty which has been on his side—which on the opposite side. But on this supposition, there must either have been an absence of all discussion, a dead silence, or on the part of the two fellow-jurymen, on one side at least, if not on both, a display of the vice of insincerity; and that in such perfection as to have been successful.

True it is, that as you increase the number, you increase the probability of uncertainty; but the number may rise to five, seven, nine, eleven, thirteen, fifteen, and still, unless discussion be excluded, the probability of uncertainty be very inconsiderable, and after all, but partial, applying to this or that one or other small proportion of the whole number.

§ 9.: Jurymen, number of—proportion requisite to command the verdict.

1. Number. The smallest capable of fulfilling the purpose.

Increasing with the number is either vexation or expense: vexation to the jurymen, if time, and labour of attendance, and operation, are not compensated for; expense, if they are.

Jurymen, though but ephemeral judges, are not the less judges: call them by that name, the conception in respect of vexation and expense will be the more adequate.

2. Proportion requisite to command the verdict.

In cases non-penal, there is little difficulty. Misdecision may happen in any case; but from the nature of the class of cases thus denominated, no danger is indicated as attaching to misdecision on one side of the cause, greater than from misdecision on the other. If any such difference in point of danger is discoverable, it must be by a particular examination of the cases referable to this head. In one point of view, number and proportion are united. The prime object is to secure decision on the one side or the other, in contradistinction to nondecision; for nondecision, in so far as it has place, is denial of justice. In effect, however, it is decision against the plaintiff’s side; but it is without sufficient grounds; for, supposing the ground sufficient—sufficient in the eyes of those to whom it belongs to judge, a decision would be pronounced in positive terms against Edition: current; Page: [133] that side. Make the number of jurymen odd, a positive decision on the one side or on the other is by this means secured; and on whichever side it is given, should the decision be erroneous, no greater mischief is as above likely to ensue, than if the misdecision were on the other side.

Very different is the result in a case of a penal nature. By punishment of an individual who is not guilty, greater is the evil produced than by non-punishment of an individual who is guilty.* Of this evil the elements are as follows:—

1. Mischief of the second order: alarm, self-regarding alarm, produced in the minds of the people at large, by the apprehension of undue suffering from the like source.

2. Sympathy with the sufferer and his connexions: pain of social sympathy.

In both its branches this evil will increase with the magnitude of the punishment.—Where the punishment is mortal, this evil is at its maximum. In this case the mischievousness is created, not so much by the magnitude of the punishment, as by its irremediability—by its not being capable of being made to cease, and by the exclusion it puts upon all compensation or satisfaction—upon good in every shape given to a party injured, in compensation for the injury.

To set against the superiority of evil that has place in the case of undue conviction, and consequent execution, as compared with that of undue acquittal, an expedient naturally, and not unfrequently resorted to, has been, the requiring for the producing a conviction, votes more in number and proportion than for producing an acquittal. Hereupon come two opposite dangers:—1. Allow conviction to have place where, in the opinion of one or more of these judges, the offence charged was not committed: in a proportionable degree, the evils above stated as flowing from undue punishment, have place. 2. Give to one, or any other small number of votes, the effect of preventing conviction: you let in the danger of undue acquittal through corruptive influence, or ill-applied sympathy. Of these two opposite evils, neither is capable of being completely excluded; but by apposite arrangements, they are each of them capable of being diminished—diminished, and that in such a degree as to supersede the demand for that multitude which, in the case of these sphemeral judges, has commonly been excessive.

So far as regards criminal cases, the grand argument is this:—Would you endure to see that man treated as guilty, who, in the eyes of though it were but a single individual of such a company, who by office are all good men and true, is innocent?

In the instance of this class of cases, those which are not only criminal but capital—such has been their prominence—have in a manner eclipsed all those whose place is inferior in the important scale. The eclipse is altogether a natural one. In the original pharmacopeia of English jurisprudence, mortal punishment constituted the general remedy: mortal punishment constituting the general rule, punishment short of mortal, the exception. Under a jurisprudence thus composed or organized, think what, in a mind not altogether destitute of human sympathy, must have been the impression naturally made by the conception thus started. As in the eyes of the dissentient juryman, so in all other eyes to which the case presented the same aspect, all who concurred in the verdict of which the death of the accused was the consequence, would wear the aspect of murderers.

The mischief consists in giving to the punishment such a form, that in case of misapplication, the evil of it is irreparable. But to an eye the research of which is confined to the surface, destruction of the offender presents, in the case of punishment in this shape, a degree of security such as is not capable of being given by punishment in any other shape Experience proves, that from causes foreign to the present purpose, by the giving of this shape to punishment, security, instead of being increased, is lessened. But in the rank of life in question, so sensitive is selfishness, that neither the will, nor the understanding, necessary to a research below the surface, are to be found.

On the occasion of the decision pronounced by the jury, shall unanimity be made necessary?

Otherwise thus:—in giving his suffrage towards the formation of the decision, shall each juryman be permitted to give his own opinion? or shall he be compelled to give as his opinion, that which is not?

Were reason and morality to decide, the question thus put would contain the answer. But in the course given to the practice, reason and morality have been treated with the most complete disregard. Time out of mind, the practice has been determined by custom, the effect of no one can say what cause, in an age of which all that is known is, that it was a barbarous one.

Dissect this transaction, and note well the circumstances of which it is composed:—

1. The decision pronounced by the jury is accompanied by the ceremony called an oath. In and by this oath is understood (if anything is understood) a promise that the opinion delivered by the person in question shall be Edition: current; Page: [134] an opinion which, at the time of his delivering it, he really entertains. As often as it is thought that a promise of this sort is violated, that is to say, that the opinion which the man has delivered accordingly as his, was not the opinion which he at that time entertained, he is considered in law, and in public opinion and language, as having committed an act repugnant at the same time to the dictates of law and morality. The name by which this act is designated, is perjury. As often as among a jury, at the time of pronouncing the decision thus given in as unanimous, any difference of opinion has place (insomuch that while the opinion given in as the opinion of the whole, is the opinion of one or more, others there are, one or more, whose opinion it is not,) perjury, it is manifest, has been committed. Either this is perjury, or nothing that can be named, is perjury.

Of the persons by whom the perjury in this case has been committed (the whole of the jurymen being twelve,) the number may have been any number from one to eleven inclusive. Not uncommonly the number of perjurers on this occasion is known to have been eleven.

2. Next comes the question, in what way is it that this perjury is brought about? In what way? by what means? The answer is—torture.

By torture, taken in the literal sense, is universally understood the employing pain of body, or fear of the immediate application of it, to compel, at the hands of the individual to whom the pain or the fear is applied, the performance of some act, which it is (or at least, by the person by whom the torture is applied, is thought to be) in his power to perform: to compel him in such sort, that on the performance of the act, the pain or the fear, whichever it is, ceases, but till then continues. Here, then, we have perjury produced by torture.

3. Now as to the person or persons by whom the torture is administered, and the perjury produced.

These persons are of two, or even more descriptions.

For simplicity of conception, suppose it the case where the number of the perjurers is eleven: one, and one alone, not being a party to the perjury. In this case it is by the intermediate agency of this one juryman that the torture, by which the perjury has been effected, has been inflicted on all the rest. At the same time it has been inflicted on him by himself. Thus we see eleven out of twelve jurymen perjured, and all twelve tortured. For the pain of body thus inflicted on himself, the juryman who is not perjured, has received a compensation, which in his eye is adequate: he has saved himself from the guilt of perjury, and he has exercised an act of power over his fellow-jurymen.

When, at the instigation of one person, perjury is committed by another, subornation of perjury is in lawyer’s language said to have place: a person at whose instigation the perjury is committed, is in consideration thereof termed a suborner.

Here then we have eleven persons perjured, twelve persons tortured, and one person who is a suborner.

But subornation may have place in a chain of any length. The suborners, one behind another, at so many different distances from the immediate act and its agent, may be such in any number, forming or occupying so many lengths in a chain of subornation. A instigates B to commit the perjury; or a instigates B to instigate C to commit the perjury; and so on to any length.

The immediate suborner would not in the manner above explained have instigated C and the others to commit the perjury, had it not been by the power given to him by another person, who thereby becomes an anterior suborner—a suborner of the first remove: thus forming or occupying another and higher link in the chain of subornation and perjury.

The person by whom this power is possessed and exercised is a judge—the presiding judge: the judge before whom the trial is carried on, and by whom all the operations performed on the occasion are directed.

In this way, on condition of inflicting on himself and the other eleven a degree of uneasiness which no one of them but himself can support, any man has it in his power to prescribe the opinion that shall be delivered by the rest, and thus converts them into perjurers. The number of the persons capable of being on each trial thus dealt with, is the number of the persons employed on the trial in character of jurors.

The mode by which this power is exercised is, to him by whom it is exercised, liable to be so painful, that the case of its being so exercised is not an ordinary one. In the ordinary case, those in the minority give up their opinions, and join with the majority. To this junction, there will naturally be two inducements:—1. The general perception, that in case of diversity of opinion, the chances in favour of rectitude, will be in the direct ratio of the number of the persons on the different sides. 2. That in a larger number, the chance is greater of its containing an individual capable of thus subduing the others, than in a smaller.

On the other hand, cæteris paribus, the chance in favour of rectitude in the case of any opinion is as the number of the persons by whom it is embraced. According to this rule, when by one single man the decision contrary to the opinions of eleven others is thus produced, the probability in favour of wrongness of decision is as eleven to one.

If instead of twelve, the jury consisted of Edition: current; Page: [135] no more than three, the probability in favour of a wrong decision thus produced, could never by the above rule be greater than as two to one.

It follows, therefore, that the more numerous the jury acting under this forced and false declaration of unanimity, the greater is the probability of this kind of perjury.

Now as to the general effect of this feature in the institution, on the rectitude of judicial decisions, and on the character of the government—in a word, on the greatest happiness of the greatest number.

Supposing the state of the law in general were what it ought to be, and is commonly said to be,—on this supposition, by every wrong verdict—by every verdict not given in accordance with the state of the law and evidence, mischief is produced. If by any such verdict, not preponderant mischief, but preponderant good is produced, the case is of the number of those in which the state of the law is different from what it ought to be—and not merely different, but to such a degree different, that by the breach of the law, and that breach a notorious one, less mischief is done than would have been done by the observance of it.

To say, then, that in the present state of the law, taking the effects of this pretended unanimity in the aggregate, the result of it is beneficial to society, is as much as to say, that such is the state of the law,—taken in the aggregate, that society reaps a quantity of clear benefit from the aggregate number of the breaches of the law thus produced.

In this position is moreover included another, viz. that in the bulk of the population, at any rate in that part of it from which jurymen of the class in question are drawn, there exists such a regard for the welfare of the community, as, on the part of the class of those by whom laws are made, is not to be found. For if there were, then by repealing or giving the requisite modification to those laws, the breach of which is wont to be thus produced, the same effect would be made to have place, and without being accompanied with any abuse as is at present produced—an abuse so flagrant, and so plainly repugnant to the almost universally acknowledged principles of morality and religion.

Under the unanimity system, the usefulness of jury-trial is as the badness of the substantive law in general, and in particular the constitutional branch. This unanimity is therefore bad in the Anglo-American United States, but good in England.

Admitting the effect alleged, viz. the force put upon the will of all but one, by the one, and the substitution of the will of that one to the will of the other eleven, where, it may be asked, is the proof that by the breach of the law,—by the breach as thus effected, more good is commonly produced, than would have been produced by the observance?

Answer: No such effect can be produced, but by a more than common degree of energy. But setting aside the case of bribery, which could not without an uncommon concurrence of circumstances have place, and which in fact is very seldom, if ever, supposed to have place,—and the case of a sinister interest produced by other circumstances,—a case which in the penal branch can very seldom have place—the degree of energy requisite for the production of this effect can scarcely be produced by any sort of cause other than that, for the designation of which the name of conscience or principle is commonly employed; viz. sensibility to the force of social sympathy, sensibility to the force of the popular or moral sanction, or sensibility to the force of the religious sanction: an indifferentist will pin his faith on the opinion or the supposed opinion of the judge. In the case of neither of these classes is it common for any such energy to have place.

For marking the separation between the cases in which this unanimity may be of real use, and those in which it cannot be of real use, one line, or at most two lines, may suffice. It may be of use, and is of use, in all those cases in which, whether in respect of the prohibition, or in respect of the punishment, the law (being detrimental to the interest of the subject-many) ought not to be in existence, and that in such sort, that it is better for the subject-many that no obedience should ever be paid to it, than that no disobedience to it should have place. It is of use therefore in the case of all those penal provisions by which monarchical government is distinguished from democratical—in the instance of all those laws by which the penalty for offences against person, property, or reputation, is raised to a higher degree in the case where the injured person is a member of the government, than in the case where he is a private individual, possessing no share in the powers of government.

It is of use in all those cases in which punishment is attached to the divulgation of opinions.

It is of use in the case of all offences against the revenue of government, when the government is to such a degree corrupt, and to such an extent established in the habit of sacrificing to the particular, and thence sinister interest of its members, the interest of the whole community, that it would be for the advantage of the whole community that the government should fall to pieces, and a different one be established in the room of it.

It may even, without going to such a length as to annihilate the government, be of use to a certain extent, and on certain occasions; viz. by increasing the difficulty the government Edition: current; Page: [136] might be under as to the finding supplies: in such sort as to prevent the government from giving way on this or that occasion to that destructive propensity which in such governments has place on all occasions—the propensity to keep the country plunged in groundless and unnecessary wars.

If false declarations of unanimity, and torture for the compelling of the falsehood, are of use in this case,—give the benefit of the falsehood and the torture to all other cases in which unanimity would in some eyes be desirable.

Apply it, for example, to elections. Keep all the electors shut up together in close confinement, without food, and so forth, till they have given their votes in favour of one of the candidates: leaving the choice of the successful candidate to chance or wisdom, whichever may be most convenient. Not that, for giving extension to this supposed security for right conduct, there is any necessity for straying thus far from the so much admired patters.

The twelve judges constitute a judicatory, and to complete the analogy, the number of the members is the same.* Take, then, this security for rectitude of decision, and apply it to the twelve judges. Not that in this case the need of it is in danger of being very frequent. Nowhere is it better known than in that pre-eminently learned assembly, how useful the appearance of agreement is to the giving, in the eyes of the deluded multitude, a colouring of reason and justice, to absurdity and injustice. On the occasion of those smotherings of evidence, by which impunity was given to the notorious crimes of Hastings, the twelve judges, under the tutorage of the head creature of the crown, were unanimous. The unanimity, which being capable of being declared, was declared, stood in the place of those reasons which, not being afforded by the nature of the case, were not to be found.

A case, and this too a law case, in which the demand for unanimity would naturally be more frequent, is that of the House of Lords. On the occasion, for example, of the Queen’s trial, how much more acceptable a result might have been produced, had this security for propriety of decision been established in that most noble and august of all tribunals! A single peer, whose loyalty stood in need of recompence, while his constitution was hunger-proof, might have sufficed to have produced a result so much more desirable than that which took place.

When the perfection of judicature has thus been secured, secured in the House of Lords—one step more will secure perfection to legislation. For this purpose, the benefit of it must of course be extended to both Houses.

As soon as this instrument is subservient to right conduct in all those other and higher situations, so will it be in that of a jury: as soon, but not a moment sooner.

In England, one point of policy pervades and gives form and spirit to the system of government, and shape and effect to practice. It consists in confounding and obliterating throughout the whole field of government the distinctions between right and wrong: in such sort, that whatsoever would to any degree be wrong and flagitious, if practised by an individual not belonging to the class of rulers, nor commanded nor authorized by the appointed assortment of those who do belong to that class, becomes right and meritorious in the case of its being so authorized. For this purpose it is, that as often as any reason is undertaken to be given for this or that arrangement, forming part and parcel of the system of government, some manifest and flagrant falsehood (the more flagrant and absurd the better) is given and passed from hand to hand, as a sufficient reason for it, and justification of it. Thus, in speaking of an individual so situated that it is impossible for him ever to do right—that the whole of his conduct as such is occupied in the doing of wrong—that his very existence is one vast wrong—that by the maintenance of that one individual in the state in which he is placed, others, the most mischievous of whom is beyond comparison less so than he, are to the amount of many thousands destroyed by lingering deaths, and others, to an equally unlimited number, kept from coming into existence,—of this individual it is, that a phrase in every mouth ascribes the impossibility of doing wrong; and of this complexion, throughout the whole of the field, is the language which calls for prostration of the understanding and will, under the name of government; and in particular, of that which with a still louder voice calls for a still more abject prostration of those same faculties, under the name of justice.

To lies, in so far as applied to the purposes thus described, the name of fictions is given; and by this one denomination—such is the effect of fraud when backed by power—the character of wisdom and virtue is understood to be given to a mixture, in the composition of which it is difficult to say which of its two ingredients is predominant—absurdity or vice.

Ungrounded would be the imputation, if to the practice thus described any such adjunct as wanton were attached. In wantonness is implied thoughtlessness. But in this case, whatsoever part folly and imbecility may have had in giving increase to it, the deepest reflection, grounded on long experience and acute observation (all along keeping steadily in view the universal actual end of government—the greatest happiness of those who have borne a principal part in the exercise of it) must everywhere have Edition: current; Page: [137] borne a principal part in the original concoction of it.

Lest anything should be wanting to the efficiency of this policy, the force of the religious sanction has on this and all other favourable occasions been called in and added.

Thus it is, that for the converting into accomplices those who might otherwise have been tempted to become accusers, the whole multitude of individuals invested with the character of ecclesiastical functionaries have, as a condition precedent to their entrance upon that character, been (with exceptions too few to be worth taking into account), with anxious solemnity baptized in the filth of perjury.

By perjury is here meant, not anything that is criminal,—for effectual has been the care taken by the law that it shall not be criminal, viz. by the forbearing to render it punishable. By perjury, accordingly, is here meant—not any crime against the law, nothing more heinous than (not to speak of the offence against morals) a sin against God.

In some countries where polished minds bear sway—British India, for example—so rude, so uninformed, or so ill formed, not to say so deformed, is the general complexion of the public mind, that individuals, in number competent to the formation of juries, fit at the same time to be endued with the power ordinarily possessed by juries, would as yet, in the general mass of the population, be in few, if in any places, to be found. In hands so circumstanced, a function of such a nature as to apply, by the force of the legal sanction, a bridle to the power of the judge, could not be safely trusted—trusted with preponderantly useful effect. A power of such sure efficiency would in such hands be liable to be employed in the character of an instrument of depredation or oppression.

This being the case, it would not follow but that, operating with no other force than that of the popular or moral sanction, the function might in every instance be innoxious, and at the same time, in more shapes than one, serviceable. What is meant is, that—in cases of sufficient importance to pay for the complication, the additional delay, the vexation and the expense—under the respected name of a jury, a body of men should be introduced, appointed in some appropriate way, taking in that character cognizance of the cause, and delivering their verdict—delivering it, but to such effect, that the judge, though bound to hear it, and to hear it in public, should not be bound to conform to it; which being the case—in the event of non-compliance on the part of the judge—the effect of the verdict would be, that of an appeal from his decision to the tribunal of public opinion.

Independently of the effect of a verdict of this sort in each individual case upon the event of the cases, among the results of this practice, taken in the aggregate, would be the giving to each judicatory thus furnished, the character, as was before observed, of a school of justice—a school in which, while the individuals thus employed as jurymen were, upon the principle of mutual instruction, receiving their lessons in the character of scholars (receiving instruction thus in its most impressive shape,) the byestanders at large would, though in a shape not altogether so instructive, still be receiving instruction, not the less impressive and beneficial from its presenting itself to their conception in the shape of simple entertainment. Here would be a theatre: the suit at law, the drama; parties, advocates (if any,) judge, and jury, the dramatis personæ and actors; the bye-standers, the audience.

From the institution so modelled, another advantage—an advantage to social harmony on the part of naturally, and hitherto jarring materials, might be derived.

The body out of which, for each cause, the jurymen are drawn, be it supposed the sort of select and elected body above described. Of the elected Hindoos, let Mahometans be the electors; in like manner, of the elected Mahometans, the Hindoos; and as between religion and religion, so in the Hindoo religion, as between caste and caste.

In British India, suppose juries established, composed of natives: the case to a certain degree important, whether it belong to the penal, or only to the non-penal branch: the difficulty of preventing successful bribery would naturally be such as to put not only the ingenuity, but the perseverance of the legislator, to the stretch.

One expedient, in so far as the state of the population afforded an adequate mixture—a mixture of the two religions, Hindoo and Mahometan, in the composition of the jury, might afford some check: always supposed, the declaration of unanimity was not made requisite; for in that case the absolute command of the verdict is given to any one juryman whose perseverance is sufficiently paid for.

So far as Mahometans are concerned, the composition of this kind of jury presents no difficulty; not so, in so far as Hindoos are concerned. Even supposing Mahometans and men of other religions out of the question, among the Hindoos themselves the deplorable fancies by which differences in dignity and purity are imagined, as between caste and caste, present a labyrinth such as no distant eye can pervade to any such purpose as that of deciding what mixtures would, in such a case, be unendurable, what endurable.

Declaration of unanimity being necessary, suppose the individuals, of whom in the cause in question the jury will be composed, predetermined and foreknown: by making sure, though it were of no more than one of them, say, for example, by a bribe, a party might Edition: current; Page: [138] be sure of gaining his cause: a party whose all (the suit being a non-penal one) depended on the event of it, would seldom shrink from such a course. Enthusiasm, physically possible, but never to be reckoned upon, excepted,—in a cause where his life depended upon the issue of it, no man ever would shrink from such a course. In a certain state of society, public opinion and habits not being favourable to such a course, the pursuing it with success might be attended with more or less difficulty, even to such a degree as that the probability of it should not be great. But states of society might be found, and those too extensively prevalent, such as to substitute in this respect, to difficulty and improbability, facility and probability. In British India, for example, suppose a capital case: a jury composed of natives, the individuals known to the defendant by information, sufficiently early for such a practice, one juryman (though there were no more) needy, and the defendant’s pecuniary means ample enough to pay the juryman’s price,—impunity here is a matter of certainty.


A special jury is a petit jury, composed of members distinguished by opulence from those of a common petit jury.

This institution, a palpable innovation, a production of the last century, is of the number of those benefits for which the people of England stand indebted to the Whigs of England.

It had for its purposes and objects—

1. To assist in the destruction of the liberty of the press.

2. In revenue causes, to provide for the joint instrument of the monarch and aristocracy in the situation of chief judge of the chief revenue judicatory, in the room of a bridle,—an instrument, and a cloak.

3. In all cases in which the interests of the ruling, the influential, and the opulent and consuming few stand in competition with those of the subject, the laborious and producing many,—to give to the few whatsoever facility could thus be given, by sacrificing the greatest happiness of the greatest number to that particular and sinister interest.

4. In all cases in which the interests, and thence the will, of the monarch and his instruments of all sorts, are in a more particular manner concerned, and in particular in Parliamentary election cases, to secure to the power of the monarch, by whose will, directly or indirectly applied, they always receive their situation, an instrument on which he might depend for giving execution and effect to that will, on all occasions.

5. To put an additional quantity of money into the hands of the lawyers.

The infusion of this poison into the frame of government was accordingly the fruit of a conspiracy between three parties—the monarch, the aristocracy, and the lawyers.

In all causes in which such is his Majesty’s pleasure (cases of felony and a few others excepted,) his Majesty has a clear and uncontested right to a special jury for his jury; the party on one side has thus an incontestable right to the nomination of the judges.

An engine thus convenient—how happened it that it escaped being employed in cases of felony?

Under a form of government which has for its object the greatest happiness of the greatest number—that of the Anglo-American United States, for example—any limitation to the application of the investigative branch of procedure, to a power so necessary to good judicature in all cases, will, when once brought to view, be seen to be beyond dispute an imperfection.

Under a form of government which has for its main and characteristic object the sacrifice of the greatest happiness of the greatest number, to the particular and sinister interests of the members of the government and their adherents, it is, and to a vast extent, only by some imperfection less mischievous, that any security, how imperfect soever, can be obtained from more mischievous abuse. Under a form of government which has for its object the greatest happiness of the greatest number, the laws will (bating this or that casual misjudgment, oversight, or want of discernment) have that same end, not only for their object, but for their effect. With no other exception than the one just alluded to, it will, under such a government, be a result conducive to the greatest happiness of the greatest number, and thence a desirable one, that the execution and effect given to the laws should throughout be entire and uniform. Under a government which has for its object and effect the advancement of the sinister interest above mentioned, and thereby the continual sacrifice of the greatest happiness of the greatest number, it is to a certain extent, and that a vast and difficulty definable one, conducive to the greatest happiness of the greatest number, that the laws, such as they are, should to the greatest extent possible fail of being carried into execution and effect.

In a country thus labouring under the yoke of sinister interest, so vast will be the extent and mischievous tendency of those laws and arrangements, by which sacrifice is made of the greatest happiness of the greatest number to that sinister interest,—that rather than full effect should be given to this disastrous class of laws and arrangements, it is conducive Edition: current; Page: [139] to the greatest happiness of the greatest number, and thence clearly and eminently desirable, that the whole frame of the laws and government should labour under a degree of general imbecility and inefficiency as effective as possible.

The laws and other arrangements by which the liberty of the press is sought to be suppressed, having for their object, and if carried into effect, their sure effect, the obliteration of those few, imperfect, and ever precarious shades of distinction, by which the limited is distinguished from a pure monarchy,—it were a lesser evil that crimes of all sorts should shound still more than they do, and juries give false verdicts still more frequently than it is endeavoured to make them do, than that the designs and endeavours against that vital security should be accomplished.

Under a government which has for its object the greatest happiness of the greatest number, official frugality is an object uniformly and anxiously pursued: peace, were it only as an instrument of such frugality, cultivated with proportionable sincerity and anxiety: any want of effect given to the laws, by which contributions are required for the maintenance of government, universally felt and regarded as a mischief: all endeavours employed in the evasion of them regarded as generally mischievous, and as such punished, and with full reason, by general contempt.

Under a government which has for its main object the sacrifice of the greatest happiness of the greatest number, to the sinister interest of the ruling one and the sub-ruling few, corruption and delusion to the greatest extent possible, are necessary to that object: waste, in so far as conducive to the increase of the corruption and delusion fund, a subordinate or co-ordinate object: war, were it only as a means and pretence for such waste, another object never out of view: that object, together with those others, invariably pursued, in so far as the contributions capable of being extracted from contributors, involuntary or voluntary, in the shape of taxes, or in the shape of loans, i. e. annuities paid by government by means of further taxes, can be obtained:—under such a government, by every penny paid into the Treasury, the means of diminishing the happiness of the greatest number receive increase;—by every penny which is prevented from taking that pernicious course, the diminution of that general happiness is so far prevented.

As, under the one government, every man, in proportion to the regard he feels for the greatest happiness of the greatest number, will give his strength to the revenue laws, and set his strength against all endeavours employed for the evasion of them,—so, under the other sort of government, in proportion to the regard he feels for that same object, will he set his strength against the laws, and in support of all endeavours employed for the evasion of them. Thus in particular, and so in general. In so far as the laws have been made every man’s enemy, every man in defence, not only of his own happiness, but of the happiness of the greatest number, will, in desire and endeavour, be an enemy to the laws.


In the name Grand Juries, the name of juries being included, the appendage thus denominated cannot be altogether passed over in silence.

A grand jury is a superior kind of jury. A grand jury has for its characteristic and peculiar function the salvation of the innocent.

A jury is a good thing: a grand jury is a jury: ergo, a grand jury is a good thing.

A jury is a useful thing: a grand jury is not only a useful, but an honourable thing; for a grand jury is a grand thing.

Such being the logic (this logic not being altogether clear of fallacy,)—to counteract the influence of it, it is necessary to show what sort of a thing a grand jury really is.

A grand jury is a bar to penal justice. For whatsoever purposes originally set up, it has been kept up, and employed by the sub-ruling few, under the influence of the ruling one, for the securing to them and their adherents the benefit of impunity, on the occasion of any misdeeds committed by them, in the course of the sacrifices made by them of the greatest happiness of the greatest number, to their own particular and sinister interests.

The petit jury tries a man, and either acquits or convicts him: the grand jury either refuses to put him, and thus prevents him from being put, upon his trial, or puts him upon it.

A petit jury is composed of twelve, neither more nor less; whether it be for acquittal or for conviction, a declaration of unanimity, true or false, no matter, is necessary for the effectuation of it: a grand jury consists of twenty-three; of that number any lesser number, so it consist of twelve, is necessary, and sufficient to give validity to what is done.

Of the procedure before the petit jury, a characteristic and indispensable property is publicity: of the procedure before the grand jury, a property still more characteristic and declaredly secured, is secresy: the ceremony of an oath is employed for the securing of it; in the official oath exacted from grand jurors, the promise of secresy constitutes a distinct article.

The function of the grand jury applies itself to two different classes of offences: to felonies and to misdemeanours.

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Viewed at a distance—viewed in a general point of view—the division into felonies and misdemeanours corresponds in the main with the above exhibited division into penal cases, which are such by reason of aggravation, and penal cases which are such for want of an individual specially injured.*

Of the power originally given to the grand jury, the effect was, that without its fiat no operation of judicature, at the expense of the personal liberty of an individual suspected, could lawfully be performed: it had thereby a veto on such operations; preservation was thereby given to the personal liberty, and by means of the oath of secresy, to the reputation of individuals. In latter times, however, this security, with the effects, good and bad together, which could not fail to be attendant on it—this security, the name and power of the grand jury notwithstanding, has in both those shapes been at an end: on application by any individual, by a warrant from a single local magistrate, styled a justice of the peace, appointed and removable at any moment by the monarch, any man is on this occasion committed to prison; there to remain, or thence to be liberated, according to the discretion of the magistrate; unless, and until his liberty be disposed of by some other authority, not here to the purpose.

Those effects which are composed of evil, with little or no admixture of good, remain in full force behind. For example, the power by which, for crimes of the most extensive mischief, by a knot of men themselves armed with complete impunity, without danger so much as to reputation (reputation being covered by the oath of secresy,) impunity is secured to criminals, in any number, at pleasure.

In so far as what legal security there is, against offences by means of which, by men of this class (viz. the class of the sub-ruling few acting under the influence of the ruling one,) sacrifices are made of the greatest happiness of the greatest number, to the particular and sinister interests of those same rulers, is given by the punishment and mode of procedure applied to the misdeeds styled felonies,—impunity and complete licence is thus accorded. For anything or for nothing, put men to death in any numbers: if, according to the view of this section of the aristocracy (instrument and confederate of the monarchy,) it is for the advantage of those conjunct interests that the men should die, you are safe. You are secured not only against punishment,—but, in so far as under the same influence, the same inclinations prevail in that class of the instantly-removable agents of the monarch, styled justices of the peace,—from disrepute. So much as to felonies: those cases included, which, though not in denomination, are, in respect of punishment or investigative procedure, or both, dealt with as felonies.

Now as to misdemeanours. Cases in which with some exceptions, principally regarding offences against the persons of individuals, investigative procedure has not been provided:

In so far as investigative procedure is suffered to take place, whatsoever protection is afforded against punishment at the hands of law, does not extend altogether to disrepute: the grand jury, when it has given to its instrument and accomplice security against punishment, has not of itself—has not, without the concurrence of a sufficient assortment of other accomplices, in the situation of justices of the peace, together with an appropriate suppression of the liberty of the press, given him security against disrepute. In the cases to which investigative procedure has not been extended, the security afforded to misdoers by the power of the grand jury is more entire.

Whatever it may have been at one time, as matters have stood for a long time, a grand jury has been, is, and will be, an instrument much worse than useless: it gives no protection to the subject many against the ruling one, or the sub-ruling, opulent, and the influential few; it does give protection to the ruling one—to the sub-ruling, opulent, and influential few, against the subject-many.

Bill found by the grand jury, information grantable by motion, information filed ex officio for alleged offences against person, property, or reputation: of all these three inlets to prosecution and trial, the one and the few have their choice: against the subject many, in any contest they may have with the many or the few, all these inlets to justice, or the show of it, are closed: information on motion, by want of opulence on their part; information ex officio, by want of power.

Vain altogether is the pretence that in this power you have a protection, that innocence has a protection, against unjust prosecution—a protection set up at the very threshhold—a protection against preliminary imprisonment.

If this protection were a preponderantly useful and desirable one, how much more so would it be in the case of felonies, than in the case of misdemeanors!—in the case in which you have taken it away, than in the case in which you suffer it to stand!

As at present constituted, a grand jury is an assembly composed exclusively of gentlemen: gentlemen to the exclusion of yeomen. In the vocabulary of English jurisprudence, these denominations have an import which, if not altogether determinate, is at least meant to be so. The class of gentlemen, is the class of the sub-ruling, the opulent, the influential few; the class of yeomen is the class of the Edition: current; Page: [141] subject many. On this occasion, if the greatest happiness of the greatest number were the end in view, in the composition of this transitory body, the majority should be of the class of yeomen; for if some must be sacrificed, better the few to the many, than the many to the few: not that any such sacrifice would have place.

If any regard were paid, so much as to the appearance of equal justice, there should be a mixture of both classes, and the class of the few should at any rate, not have a majority, as against the class of the many.


§ 1.: Preparatory or preliminary observations.

The design in the use here made of a jury,—that is to say, of a sample taken at random of the promiscuous multitude—the design is not to invest a set of men so circumstanced, with an arbitrary power over their fellow-countrymen; but to add to the effective force of the other checks applied to the power of the judge. On the part of such an assemblage, no one element of appropriate aptitude in any degree above the lowest could reasonably be depended upon: on a judge placed in a situation fenced about as here—on a judge, in so far as on any person invested with such power as it is necessary to arm his situation with, so long as the eye of the public-opinion tribunal is kept steadily fixed upon him, dependence may be placed.

Accordingly, they are not merely authorized, but invited and urged to take cognizance of every matter that comes before them, and on whatever occasion, or on whatever account they feel disposed: whether for the purpose of assistance to the understanding, or controul upon the will of the judge,—to give expression, collectively and individually, to their sentiments. But this opinion is not made obligatory on the judge—it is not made decisive of the fate of the cause.

By this means, instead of being placed on shoulders too lowly situated to be depended upon for being duly sensible to the pressure of it, the responsibility is left to press with all its weight upon those shoulders in which that tutelary sensibility is at its maximum.

By the registration made on each occasion of the opinion of the jury on the one hand, and the opinion of the judge on the other, compared with the nature of the case (and this parallelism continued on throughout the stream of time,) a continually accumulating body of information, interesting in a variety of ways, will be secured: the progress of intellectual aptitude, as applied to matter of law and evidence, will be marked by it.

The judge will not, as he would otherwise, partly by the intellectual influence attached to his situation, or by fallacies and other antifices employed on purpose, have it in his power to remove from his own shoulders the just odium that would otherwise be brought down upon him by an unjust decision.

On the other hand, while in this direction, on account of its dangerousness, the influence of the committee of the public-opinion tribunal is here limited,—in another quarter, an enlargement clear of all danger is given to it. From an opinion which is not obligatory, evil cannot in any part of the field be in any shape produced. And in the situation of judge, if a check is necessary or useful in any part of the field he travels in, so is it in every other. Of a road, such as that here in question, if a watchman be useful in any one part, so must he be in every other: accordingly, under the system here proposed, in no part of his career is the probity of the judge left destitute of the benefit of the safeguard which it belongs to the power of the quasi-jury to afford. Of whatever point a judge has cognizance, of the same point a quasi-jury has concomitant cognizance.

Of the service, such as it is, which is rendered to justice in systems in which the word jury is employed, it may be questioned whether it be in a direct way, or otherwise than in an indirect way, that upon the whole the greatest part of it is rendered. Along with the jury, a portion of the public has all along been let in. The jury itself forms on each occasion a part and parcel of the great public at large; and in proportion to the change made in the persons by whom that function is performed, that portion receives enlargement. Hence it is, that in jury cases publicity of judication has been to a considerable extent, though nowhere in an all-comprehensive, nor therefore in an adequate extent, the practice: being the practice in those cases, the expectation of finding it so wherever it has been the practice, has become general: and in this indirect way it is, that jury-trial is, to an extent more or less considerable, of use in cases in which, as to the affording any binding check upon partiality on the part of the judge, the jury itself might be little better than useless. Witness all those cases in which the choice of the jury is immediately or unimmediately in the hands either of the judge or of some other dependent creature or creatures of the monarch: in all such cases, it may be a question whether, in the character of a check to improbity in the judge, it does more good than it does evil.

Not only has the public at large acquired the habit, and thence to a practical effect the right, of stealing in as it were under the cloak of the jury; but by the power given to the jury, the judge finds himself under the necessity of addreasing his discourse to Edition: current; Page: [142] them, explanstory of the nature of the case and of the grounds on which his advice and recommendation, if any is given to them, has been founded. Suppose, then, for argument’s sake, an advice manifestly repugnant to justice given by him to them—what is the consequence? If he gives no reason, he does not give himself the chance he might have of prevailing by sophistry; and the injustice being without a mask, instead of compassing its object, will expose him to just reproach: if he gives reasons, their being by the supposition weak, they will expose him to reproach by their weakness.

Now as to the number of the persons whose services are to be exacted for the performance of this function. On this part of the field, a conflict has place between the direct ends of justice on the one part, and the collateral ends on the other; between the good attached to the degree of security afforded against the evils of misdecision, and the evil composed of vexation to these functionaries, and expense either to them or to the community at large.

True it is, that in regard to extent, proportioned to the vexation and expense is the instruction, moral and intellectual, thus spread over the community: but in regard to the vexation, the quantity is much more palpable, than of the quantity of instruction reaped, the existence will be certain.

Of these several quantities, any estimate approaching to adequate correctness is impossible, unless the political state in question is given. The pecuniary sufficiency of the individual, the state of the communications, being given, and the length of attendance being given, the quantity of the vexation will depend upon the length of the journey to and fro; that is, on the distance between the abode of each individual and the judicatory. But the political state in question being given, the average of this distance will be inversely as the number of those judicial subdistricts or portions of territory resulting from an ulterior division.

Thereupon comes a question,—Shall these assessors be taken from every part of a subdistrict without distinction? or from a portion, no part of which is by more than a certain length remote from the judicatory? If without distinction, then comes inordinate vexation to those whose habitation is to a certain degree remote: if with distinction, in consequence of which, to those beyond the line, an exemption is granted, then is the population of the sub-district divided into two portions, the one of which is left in a sort of barbarous state in comparison of the other.

On an occasion such as this, a middle course might perhaps be taken, not without advantage. In the remote parts, the times of service might be less frequent than in the near part: the vexation, however, is in this case not done away with, only lessened; and the instruction is in the same proportion lessened.

Increase the number of those subdistricts, with those judicatories,—this vexation is indeed lessened, but the expense to the public is increased.

Under the division into subdistricts, shall there be any subordinate division—a division of those subdistricts into bis-subdistricts?

Answer: For the purposes of judicature, No. The extraordinary case of an appeal to the justice minister will answer every good purpose, of a greater number, and put an exclusion upon all the bad effects.

In the case of assessorship service, the time of demurrage, it may be observed, will naturally be considerably longer than the time of election service. For the election service, it may happen to be performed within the first minute; and the time requisite for receiving the vote, by dropping two recognized pieces of card into a box, can never, for all the votes taken together, be extended beyond the bounds of a single day.

The expense of the assessor while in waiting,—shall it be borne by the individual or by the public? On the individual, the burthen would be intolerable and needless: by the whole public the benefit is reaped; by the whole public ought the whole burthen to be borne. For functionaries of this class taken separately, the pay necessary will be to the lowest amount: nothing is there that could render it worth regard, but the number of those whose services are thus put into requisition. The bulk of the population being in almost every country composed of the lowest paid day-labourers, it will be composed of those to whom any casual deduction from the means of subsistence would be most irksome, and be most difficult of endurance: the pay should therefore be some what greater than that of the lowest paid day-labourer; say, for example, twice as much. Thus much for the assessors taken from the more numerous class.

In the case of the assessors taken from the more erudite class, the quantum, it should seem, should not be exceeded. By no addition that could be made to it, could any degree of proportionality—of equality, be maintained. On the plea of increase, it would require to increase with the amount of income; but to this mode of increase, the objection seems a peremptory one: publication of income would in general be irksome; nor could any correctness be given to the fixation without such as inquiry as would be the equivalent of a law-suit. Nor to the more numerous class would any such gradation appear consistent with justice. In comparison with that of the more numerous class, the condition of those members of the more erudite class would, on the Edition: current; Page: [143] face of the account, he seen to be in the same proportion more prosperous—the general mass of benefit derived from the government so much the greater: and proportioned to the benefit should therefore be the burthen, or justice and equality are obviously contravened.

Were the pay of an assessor ever so much greater than it is proposed to be, still it could not be, in the instance of every individual, in every conjuncture, an equivalent for the attendant vexation. Here, then, may be seen a reason for the permission of a substitute, in the room of any person on whom the lot has fallen—a substitute, on the condition that whatever be the qualification requisite in the case of the principal, that which is requisite in the case of the substitute shall be the same; namely, as here proposed, possession of the arts of reading and writing.

§ 2.: Quasi-jury, what.

The denominations quasi-jury, and quasi-jury system, are here necessitated by irresistible considerations. By the word jury, the nature and design of this portion of a judicatory, some conception, however inadequate, is presented to view, and a general prepossession in favour of it will naturally be produced. At the same time, if without some intimation given that the two objects, how nearly soever related, want much of being the same, great would have been the confusion and perplexity introduced by the discrepancy between the denomination, and the thing thus denominated.

The institution called a jury, being the subject of such general applause—why on this occasion introduce not a jury, but a quasi-jury? not the thing itself, but only an institution bearing more or less resemblance to it? Conceived in the most general terms, the answer is—Because with this resemblance how faint so ever—with this faint resemblance, in addition to the other securities which have been seen, for appropriate aptitude on the part of the judge, all the good effects that have ever been looked for in a jury are produced, free from all the evil effects—evil effects essential and unpreventable, and to such a degree evil, as to render the use of it altogether incompatible with a system of procedure having for its end the ends of justice; inasmuch as it is in a high degree adverse to, and the use of it incompatible with, the attainment of every one of those ends. What, then! have its effects been from first to last, wheresover employed, no other than so much pure evil? Answer: On the contrary, they have been productive, as has been already shewn, of inestimable good. But in what manner?—By this, and this almost alone; namely, by the very opposition of the institution to the main end among the ends of justice: that same main end being rectitude of decision, exclusion of misdecision.

On looking to the several elements or features of appropriate aptitude, it will be seen that, in the aggregate, jurors are essentially wanting: for appropriate moral aptitude there being, in a body of men so taken, no security; and in lieu of appropriate knowledge and judgment, there being a constant certainty of the opposite inaptitude—of inaptitude absolutely considered, and of inaptitude considered in comparison of the like quality in question, on the part of the judge.

Judication is a branch of art and science. In the most unapt judge ever seen, some proficiency in the art and science has been manifest: on the part of those men, who, to be least unaptly selected, must be selected at random, selected by fortune, not any the smallest security for any the least grain of any one of the elements of appropriate aptitude can be pointed out.

Of the institution here proposed, the object is to bring to pass, with some addition, whatever has been looked for at the hands of a jury.

If in any one state of society it be capable of answering its intended purpose, so will it in every other; for in the organization of it, a state of society, one at the lowest as well as one at the highest stages in the course of civilization, has been all along kept in view

Taking up men from the most numerous class, and placing them in a situation in which the business of life in all its forms will be brought before their eyes, and a call made upon them for whatsoever exercise they are capable of giving to their intellectual powers—converting the judicial theatre into a school of justice, into which men of all ranks are compelled to enter themselves—it tends with continual increase to give strength to the aggregate stock of intellectual power throughout the community, and with continually augmented effect to render more and more apt those whom it finds least so.

At the same time, giving no decisive effect to the expression of their sentiments, it avoids altogether the exposing the welfare of the community to hazard from any ill-advised or perverse exercise of power, of which in that situation of life the will of men may be supposed susceptible: they may advise anything; they can give determination to nothing. For anything which they are allowed to do, or are at all likely to do, no evil is there in any shape which the community is exposed to suffer.

While at their hands society is not exposed to evil in any shape,—on the other hand, by the part which it is given to them to act, the quantity of evil which society would otherwise be exposed to suffer at the hands of the judge, great as may be the influence which they are enabled to exercise,—by no power given to Edition: current; Page: [144] them, can responsibility on the part of the judge experience any the slightest diminution: on him, in every instance of whatsoever is done, the responsibility rests in all its undiminished weight.

The object has been to strew the way of the judge with such checks as, while they afforded no impediment to him in the right and proper course, would, when taken all together, be found to oppose an insuperable impediment to him as often as it could happen to him to make any such attempt as that of straying into any sinister course.

The course by which efficiency will thus be found to have been so perfectly established, is as simple in its description as in its contrivance. To the quasi-jury are given all the powers of judication—all the powers that are given to a judge, with only one exception; namely, the effectively imperative function—the function to the exercise of which is attached the power of giving execution and effect to the will of him by whom it is possessed: and this is the only one by which in any hands mischief can be done. Of themselves, nothing can they cause to be done: of themselves, nothing can they so much as prevent from being done. This power, in the shape in which they possess it, resembles in some degree what in mechanics is the power exercised by friction,—it is like the drag upon the wheel.

§ 3.: Quasi-Jurors, who, and how chosen.

Hitherto there has been unavoidably more or less of the fictitious, in the idea attached to the appellation of committee or sub-committee of the public opinion tribunal: the members being self-appointed, not mutually present unless by accident, and fluctuating. But in the case of a jury, everything said of such a sub-committee is or may be realized: it is everywhere, or may be, and (at any rate to fulfil the professed ends of it) ought to be, an exact sample of that unofficial judicatory, although to the particular purpose in question, officialized.

From this source may be deduced what ought to be the principal and characteristic features of this fragment of an official jury, thus denominated:—

1. Stock from which the members are taken,—for securing appropriate moral aptitude, the whole of the male adults of the community; unless, for the better securing of appropriate intellectual aptitude, it should be deemed advisable, as in case of election of representatives, to confine the capacity, to those who have been found capable of undergoing a literary test. Object of this universality, exclusion of aristocratical injustice.

2. Locator of these ephemeral judges,—not choice but chance. Chance alone is sure to be impartial: chance alone is incorruptible. To place the choice in any human hand, he be who he may, is to lead him into needless and useless temptation—to infuse the poison of corruption into his veins.

By this means, and by this alone, as all danger, so all suspense and apprehension of partiality, stands excluded.

3. Being by supposition exempt from all corrupt interest, the suffrages given by these unpermanently official judges, may without inconvenience be covered with a veil of secresy: having no particular and sinister profit to gain by injustice, the course taken by each will be determined by his regard for that interest of his, in which he has for sharers all the other members of the community,—in a word, for that interest which is in each case on the side of justice. The eye of the public might in this case be even prejudicial to the cause of justice; for in the public might be this or that individual, by whose corruptive influence might be created in the breast of this or that juryman a particular and sinister interest, by which would be dictated and produced a decision and correspondent suffrage opposite to the decision dictated by a regard for the rules of justice,—and by reason of this opposition, opposition to the universal interest.

§ 4.: Expunction.

Challenging,—that is, the partial dislocation of proposed jurors by a party—why not here employed?

Answer.—Reasons: 1. The vast aggregate body of vexation. By the provision made to that effect, vexation in extent and in intensity not inconsiderable.

2. Under the here proposed system, no such demand for the provision has place as under the existing system in England: the decision of the jury being in English practice obligatory on the judge; in the here proposed practice—not.

3. The decision not being obligatory, the demand for exclusion has no place. But the effect intended by exclusion, is here produced to much greater extent without exclusion—namely, by the questions which the parties on both sides are allowed to put to the several jurymen, for the purpose of ascertaining the existence or non-existence of a natural cause of partiality, and thence the probability of the effect. Be the answers what they may, the juryman is not inhibited from taking whatsoever part he feels disposed to take throughout the business. From his answers, the state of his mind in respect of partiality and impartiality is open to be collected: in case of apparent cause of partiality, it operates in diminution of the weight of his authority—just as, in the case of evidence, in diminution of the probative force of the testimony of the witness.

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4. By the omission of this institution, no small mass of complication is discarded.

§ 5.: Quasi-Jury, uses of.

In respect of scientific, judicial, and active aptitude, it is here a sort of assumed postulate that a set of men taken at random from the body of the people can never be regarded as being, by a great deal, upon a par with an erudite and experienced official judge.

The use of any such assessor is therefore merely confined to the contributing to the securing of adequate appropriate moral aptitude on his part, by the application of a check to the exercise of his powers.

In this capacity they are capable of serving, and may reasonably be expected to serve, independently of any degree of intellectual aptitude on their part, and therefore with as low a degree of aptitude in that shape as ever can have place. Why? The reason is, because their persons being unknown to him, the degree of aptitude actually possessed by them will be unknown to him. They may, every one of them, for any assurance he can have, be endowed with the very highest degree of appropriate aptitude in every shape.

What remains is, to secure on their part, as far as may be, appropriate moral aptitude in the shape and degree requisite.

The first quality to be provided for is—original impartiality.

The next is uncorruption. As to uncorruptibility, this depends on the particular frame of mind on the part of each individual,—a sort of fact in relation to which no adequate information can, in the nature of the case, be attainable.

What remains is—in presumption of corruptibility, to throw such difficulties as can be thrown in the way of the sort of intercourse necessary to the production of the noxious effect.

Without his putting himself in a considerable degree in the power of the person tempted, no person can in any such case apply temptation to the probity of a quasi-juryman.

The smaller and less certain the corruption derivable from success in the enterprise in question, the less the probability of a man’s exposing himself to such hazard.

Of the body of assessors styled a quasi-jury, the use is, as has been seen, to add to the mass of securities for appropriate aptitude on the part of the judge. In this character, its operation is mostly confined to the moral branch of that same aptitude: to the degree of his appropriate intellectual and active aptitude, it cannot be expected to make addition, any otherwise than in so far as it contributes to call forth into action whatsoever stock of those desirable qualities it finds him in possession of.

To the power given to the body styled in English-bred law a jury, these same uses and good effects are attributed: and lest they should not be produced, a certain portion of the power of this erudite functionary is taken from him and conferred on those unerudite functionaries.

If at their hands, in comparison with him, any superiority of appropriate aptitude is in any branch looked for, it must be in the intellectual branch,—to wit, knowledge, for example, of the feelings of individuals whose condition is nearer to them than his: together with such casual acquaintance as it may happen to them to possess of the particular circumstances of the individuals on whose cases they have to pronounce.

Consideration had of the mass of securities provided, of which the maximization of publicity, and the effectual dislocability of all judges by the real representatives of the people, are the chief,—it will, it is believed, be sufficiently manifest, that without either jury or even quasi-jury, the securities for good judicature would be much more effectual than, by anything that can be called a jury, they ever have been made, or ever can be, anywhere. But forasmuch as, by the institution as here modified, a substantial addition seemed capable of being rendered to the efficiency of these same securities, this ingredient in the mass of appropriate arrangements could not consistently be withholden; not to speak of the wishes and even expectations which on this head the public-opinion tribunal could not fail to entertain.

The comparatively slight particular above alluded to excepted, only with a view to moral aptitude could any additional security be looked for at the hands of men so circumstanced.

The controul applied by a body of judicial functionaries to the conduct of the judge cannot be adequately effectual, unless it applies to every step taken by him in the course of the suit, from the commencement to the close. Such is that applied here in this code by the quasi-jury. Nothing approaching to it is that which is applied by the English jury. In a large proportion of the whole number of suits, that body has no place: and among them are those which arise out of the most important cases; and those which have place in by far the greatest number: the most important,—those, to wit, which give employment to the equity courts: those which have place in by far the greatest number,—those, to wit, which give employment to the small-debt courts.

Now as to the concomitancy of the controul of the jury with the operations of the judge. Out of an indefinite number of stages of operation, it is confined to a single one called the trial. But whatsoever would have Edition: current; Page: [146] been the opinion and will of the jury, had the suit throughout the whole course of it been open to their influence, the judge may frustrate altogether: visibly, by operations concomitant or subsequent to the trial; invisibly, by operations anterior to it; and, upon the whole, in each case, by any one of a multitude of operations. In cases styled penal, the power of the jury is not quite so inefficient as in cases styled civil. In cases styled civil, the judge can in one way or other give success to the plaintiff’s or to the defendant’s side at pleasure. Not exactly so in cases styled penal. To the defendant’s side, indeed, he can insure success, on any one of an infinite variety of devices, not one of which bears any the slightest relation to the justice of the case. Not quite so easy is it to give success to the plaintiff’s side;—in other words, to punish, under the name of punishment, the defendant for a crime which, in the opinion of a jury, he has not or would not have been regarded as having committed. It can no otherwise be done than under accidental circumstances favourable to injustice in this shape; for example, by refusing the operations necessary to the obtainment of evidence, by which, if obtained, a just acquittal would have been produced.

The primary use there, is the forcing out of the mouth of the official judge, grounds and reasons for the decision which it is his desire should have place.

Fortunate is the state of things where the success of an operation is independent of the qualities of the individual operators. In this case is this primary benefit attached to the institution of a jury.

For whatever reasons the conduct of the judge should be subject to inspection in any one part of the procedure,—for the same reasons, so ought it in every other: for if by aberration from the course of justice, it is in his power to produce misdecision, or the collateral evils of needless delay, vexation, and expense in any one part; so is it in any other. Admitting then that the use of a jury consists in its exercising, and being seen to exercise, the function of an inspector of the conduct of a judge, the presence of this safeguard is useful, not to say necessary, from the very commencement of the procedure in the presence of the judge, to the very end of it. In the early days of jury-trial, it seems not improbable that this undiscontinued inspection actually had place: in the jury-court, as now in small-debt courts, commonly the same day, not unfrequently the same hour, which saw the commencement of a cause, saw the termination of it. The splitting of a cause into an indefinite number of parts, with long intervals between part and part—the jury not being admitted to be present at more than one of those parts—and a contrivance, by which the decision pronounced in their presence was overturned in their absence;—all these improvements in the art of fee-gathering were so many subsequent amendments introduced by degrees. Had the ends of justice been the object, the application made of this system of inspection would have been commensurate with the need of it; but the ends of judicature were the augmentation of the emolument and the power of the judge: hence the difference. In the best judicatory that could be framed—to wit, a single-seated judicatory—a judicatory in which a single judge presides, whose situation is permanent, and his functions exercised with open doors,—there being no person in particular who had any claim for reasons or explanations, for any of those statements by which a test of his appropriate aptitude in all its several branches is afforded,—arbitrary power would find itself in a state of comparative case. Suppose a judge in any instance determined to pronounce a decision, of the unjustness of which he is conscious, what is the course that would be free for him to take? After hearing what is offered to be said on both sides, he will pronounce his decision. No sufficient reason,—the case (by supposition) not affording any,—will be seen for it. In this case, will any loss of reputation be the consequence? Not by any means a certain consequence. The prepossession which the power attached to the situation insures in favour of everything that is done in it, is an assured protection, and in a multitude of minds a constantly effectual one.

For the cognizance of a claim which must not exceed 40s., the attendance of a numerous body of judges, under the name of commissioners, is not grudged: of these commissioners the list being the same at all times. Still less need it be grudged, for claims of forty hundred or forty thousand pounds: the labour of attendance on the part of these inspecting judges being relieved by an indefinite frequency of change. If by the now established number of 12, the extent given to this burden would be rendered too great, scarcely can any reason be assigned why it should not be lessened: 11, 9, 7, 5, or even so few as 3, chosen upon a right principle, would be preferable to 12, all chosen upon a wrong principle.

In comparison of the power possessed by a juryman, whether under the English or the French system, how small is the power here given to a quasi-juryman, is altogether obvious. The quasi-jury all together, not having any obligative power, further than the enabling a party to appeal,—silencing their interposition, silencing the communication of their observations, is the upshot of all that corruption can do in this case. And unless in the cases where without such interposition the judge would go wrong, while by the check Edition: current; Page: [147] applied by it he will be restrained from going wrong, and confined within the path of rectitude,—in no shape would any advantage be to be gained by the production of any such corrupt silence.

Of an institution beneficial upon the whole, concomitant with the beneficial effects are always an infinite multitude of uninfluencing circumstances, and, though in less number, obstacles, or opposing causes on every occasion: the great difficulty is to distinguish from each other these three classes of circumstances.

Of the beneficial effects of the institution of a jury, some apply alike to both branches of substantive law—the penal and the non-penal; others exclusively or more particularly to the penal.

Those which apply alike to both branches may be stated to be as follows:—

The main and all-comprehensive beneficial effect produced by it, in the several cases to which it applies, is the bringing to bear upon the decision the power of the public-opinion tribunal—a power which, in so far as it has place, applies itself to the most despotic governments, and diminishes more or less the evil which they have for their inseparable result.

This it does in three different ways.—

1. One is through the medium of publicity; the sort and degree of the publicity which it gives to that part of a suit to which it attaches itself; and that part is the principal one. The jury will form of themselves a committee of the public-opinion tribunal; and from its several members the information respectively possessed by them radiates out of doors through so many circles of indefinite extent, of which they are respectively the centres.

This being the most extensively favourite mode of judicature, the habit of publicity inseparably attached to it has extended itself to the several other forms. And sure it is that jury-trial has been a main security for the power of the public-opinion tribunal as applied to judicature.

True it is, that from the earliest times of which any accounts remain to us, a high degree of publicity has had place in judicature, and in times anterior to those in which the institution of a limited number of assessors, under the name of a jury, appears to have been in use. Witness the county courts and the courts baron. It is not therefore for its creation that the practice of publicity is indebted to jury-trial. It is so, however, for its preservation, and it forms accordingly the characteristic difference between English-bred law and Rome-bred law.

This publicity, with its advantages, exists in a state independent of jury-trial: it exists, as we have seen, where there is no jury-trial; for example, in the judicatories called equity courts, and in the judicatories called ecclesiastical courts, not to speak of the military courts in some instances.

In the account of beneficial effects, this, then, it may be seen, is distinct from that of the obligatory power possessed by the jury over the decision in all hitherto established instances; and may accordingly have place without it.

2. Another way in which it brings to bear upon judicature this same tutelary power, is by the obligation it imposes upon the permanently-official and all-directing judge, to pay his court to these his transitory colleagues, and submit to them, and through them to the public-opinion tribunal at large, in the form of reasons, whatsoever considerations he regards as necessary to the engaging them to pronounce a decision conformable to his wishes.

In this way, not only if the decision he wishes to give is unjust, but the injustice of it is to a certain degree manifest, exposure to public reproach is a consequence which it cannot be altogether in his power to exempt it from: the exposure is in this case effected either by the utter absence of all attempt at exhibiting reasons, or by what may be still better, the weakness and absurdity of his reasons.

These good effects are, it is manifest, both of them altogether distinct from the powers exercised by the jury in respect to the nature and effect of the decision. It is here accordingly meant to be preserved.

3. Another distinguishable mode in which the jury system, in the form in which it is in use, has been conducive to the ends of justice, is the causing evidence to continue to be received in the best shape; namely, that in which it passes immediately from the lips of the relating witness to the ears of the judge and the surrounding auditory, without being strained through the hands of professional or official instruments, or both, and then reduced to writing by them, they being paid all of them at the rate of so much a word for extracting it.

Neither is this feature inseparable in its nature from jury procedure. Neither in this instance is there anything in the nature of evidence on the one hand, or of jury procedure on the other, that renders it more difficult to receive evidence in this shape, in any other sort of judicatory than in that of which a jury forms no part. In relation to a fact open to dispute, no judge, no other ruling functionary that really wished to come at the truth, ever thought of receiving evidence in any other shape than in the orally delivered shape, whenever in this shape it was within reach. Witness all parliamentary inquiries: witness every father of a family in his dealings with his children or his servants; witness Edition: current; Page: [148] the inquiries carried on, on the occasion of those crimes by which the minds of individuals, governors as well as governed, are apprehensive of injury done to person or property.

But except in so far as the truth was regarded as conducive to the giving effect to his power, or to that of him on whom he was dependent, no functionary concerned in the framing of the rules of procedure does ever harbour any such wish, as that of seeing the truth come to light, or enabling his associates and successors to come at the truth. Their aim has uniformly been, as it could not but be, to extract out of the pockets of suitors money in the greatest quantity in which it could be so extracted. The object was, that in testimonial statements the quantity of falsehood should be maximized—that further proceedings and further writings for the exposure of it might be necessitated.

At the time when the course of procedure with jurors in it was settled, and had assumed its form, scribes for the purpose were wanting, because the money to pay them had not yet come into existence. As yet judges were unable to receive evidence in any other than the most apt shape. But as the money came, things were set to rights by written compounds of falsehood and nonsense, which, under the name of pleadings, the parties were forced to utter, and to pay for, before the judges would suffer the matter to come before juries.

In the sort of judicatories in which the bench was not encumbered with any such appendage as a jury box, judges found themselves in this respect at their ease.

If in the presence of each other, and at the same time in the presence of the judge or judges by whom the fate of the suit was to be decided, the parties were heard in the first instance, the suit would in a great majority of cases be finished on that same sitting: and in the other cases, the speediest termination which the nature of the case admitted of would be brought to view by the exposition of the several facts. But in such a state of things, the pretence for official and professional extortion would have no place. In a case where property was the subject-matter of dispute, it became therefore a fundamental maxim, that in the presence of the judge or judges, on whose decision the ultimate fate of the suit depended, on no occasion were the parties to be suffered to meet in the presence of the judge: the parties being, unless by accident, the individuals by whom the facts in the case were in the largest proportion known, and in many cases the only individuals by whom any of those facts were known.

Upon the whole, then, two things appear sufficiently plain. One is, that the receiving evidence in its best shape is a practice that has obtained in all cases in which a jury has been called in: the other is, that the receiving evidence in this shape is an operation altogether as easily performed where a jury is not employed as where it is.

As to the quasi-jury system, the framer of it has nothing to get by any such mixture of absurdity and falsehood: accordingly, under the quasi-jury system, the evidence is received in the shape most conducive to the ends of justice.

One great and peculiar value of this plan will be seen to be its flexibility—its self-flexibility: with equal facility it will be seen applying itself to the most erudite and to the least erudite state of society: it might be employed not only in a democracy, but the most absolute despotism need not fear it.

Whatever be the effect of its influence, nothing can be more gentle and quiet, nothing else so gentle as its mode of action.

In the quasi-jury box may be seen a school in which the scholars are serving an apprenticeship in the art of judicature.

And these scholars,—in what number are they? Sooner or later they are the great majority of the whole number of those of whom the male population of the country is composed.

In England, under the existing system, every judge has an interest opposite to that of the people; and under the here proposed system, no judge has any other interest than that which coincides with that of the people. By no interest can he be led to wish to inflict punishment on any man, whom it could not be alike the interest and the wish of a jury to see punished.

Under this system, with what prospect of success could a judge pronounce a sentence or a conviction, which in his own eyes were unjust? Altogether unavailing would any such act be, except on the supposition of its passing without opposition through the censorship of the quasi-jury—and, moreover, finding a congeniality of guilt in the appellate judicatory. For the act being, in the eyes even of the agent, itself flagrantly unjust, is it possible that it should wear a more favourable aspect in the eyes of not only observers altogether impartial, but of jurors leagued by a community of interest, self-regarding and sympathetic, with the supposed objects of the intended injury?

To these safeguards is moreover proposed to be added that of an established delay, for the express purpose of giving time to all parties in any way interested, to make application to the appellate judicatory. Suppose, then, a sentence or conviction decidedly unjust, signed by the judge-immediate, what is the consequence? Before execution can be given to it, the whole country rings with denunciations of the injustice.

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§ 6.: Difference between Jury and Quasi-Jury.

In the framing of the proposed quasi-jury, the object has been, as already stated, to retain all the apt features of the jury institution, to discard the unapt ones, and to add such new features as seemed apt with reference to the ends of justice.

By apt, understand with reference to the here proposed institution; for one feature will be brought to view, to which the beneficial effects of the jury system will, it is believed, be in great measure referable; but from which, if adopted into the here proposed institution, no effects but evil ones could be produced.

Between the jury system and the proposed quasi-jury system, the principal difference lies in this: By a jury, powers are possessed and exercised, such as to a great extent are decisive of the ultimate fate of the suit: powers of acquittal, for example, in all criminal cases. To a quasi-jury, no such decisive power is allotted.

With the exception of an application which is not of the essence of the system, a quasi-jury has no decisive power, and in that case it is not ultimately decisive. Of this power the exercise consists in giving or withholding allowance to appeal from the immediate to the appellate judicatory, in cases where, if, without this restriction, the right of appeal were left to the defendant, a very prominent load of certain vexation and expense would be imposed on prosecutors, witnesses, and jurymen,—in cases where the instances of its being subservient to rectitude of decision would be rare in the extreme. These cases are criminal ones, in none of which appeal, on application by a jury or otherwise, is allowed by English law.

The reason of withholding from a quasi-jury the power possessed by a jury is this:—Under the proposed judicial system, the prevalence of sinister interest on the minds of the judges is opposed by checks much more efficient, it is believed, than any which have been or can be opposed to it in the breasts of jurymen; namely, in the first place, sinister interest—the great cause of moral inaptitude in the case of judges: in the next place, relative and comparative deficiency in respect of intellectual aptitude—a branch of appropropriate aptitude in which it is not in the nature of the case that these ephemeral functionaries should in general be able to compete with judges.

With the above exception, the character possessed by the quasi-jury partakes more of that of a section of the public opinion tribunal, than of that of a body of commissioned and official judicial functionaries.

That decisive and virtually negative power which is apt in a jury, but which would be unapt in a quasi-jury, being thus excepted, the features to which the jury institution is indebted for its aptitude, and which are here adopted and given to a quasi-jury, will be found accidentally only, not essentially, belonging to it.

These are—1. The end to which the institution of this fraction of a jury is manifestly and confessedly directed; namely, serving as a bridle to the power of the creature of the monarch—the judge.

2. The publicity of the proceedings whereever this committee of the people at large makes its appearance.

3. The task which their power imposes upon the judge—the task of giving a public and immediate explanation of the case, with the reasons on which his expectation of seeing any course he would wish them to pursue pursued accordingly, rests.

4. The shape in which the evidence presented to this compound judicatory is always presented.

Of all these four features, no one can be assigned, which in the nature of the case might not have place in a judicatory constituted in any other manner, as well as in a judicatory of which a jury forms a part. For publicity might have place in a single-seated and uncompounded judicatory, as well as in that of a compound one; so likewise might the evidence be given in the best shape: the task of giving explanation and reasons to the auditory might be assigned to the judge, so there were but an auditory, no matter how composed; but unless along with the task, adequate motives were given for the performance of it, the task might as well not be given: these motives are not wanting in the case of a jury, nor will they be found wanting in the case of a quasi-jury.

Accidental as they are in their nature, with reference to the use made of this fraction of a judicatory in English-bred procedure, yet, but for the establishment of this institution, these vitally essential features would naturally have been as unknown in the English, as they are in the judicial systems of most other countries. But the point is scarcely relevant. The proper question here is—not what has been, nor what might have been, but what ought to be.

§ 7.: Collateral advantages or beneficial applicabilities, two.

I. Its operation in the character of a school of justice.

II. The universality of its applicability—its fitness for being inserted into the judicial system under any form of government.

I. As to its operation in the character of a school of justice.

Compared with the jury system, this character is not peculiar to the quasi-jury system: Edition: current; Page: [150] only in a degree, but not on the whole, is this character peculiar to it. In this respect its advantages over the jury system are these:—

1. The superior magnitude of the population drawn into this school. Under the here proposed system, the subdistricts constituting the judicial districts of the immediate judicatory are more numerous than those from which, under the English system, juries are drawn.

For the avoidance of vexation and expense, the number of members proposed to be given to a quasi-jury is indeed considerably inferior to that which has place under the jury system; but the defalcation from this source is supposed not to be equal to the addition made from that other source.

2. The greater probability of a superior degree of attention being given to the subject-matter of the exercise in the quasi-jury school, compared with the jury school. In the jury school, what is done is principally done by the scholars together in a body; and though in their individual capacity there is nothing to hinder them, neither is there anything to invite them to interpose; in general, the foreman, or some other member (naturally the foreman,) takes the lead; and the giving an unreflecting assent is all that is done by the rest.

3. The indiscriminating miscellaneousness of the composition in the case of the proposed quasi-jury, compared with the sinister selection, which in all places, and at all times, is capable of being made in the case of the jury.

4. The condition of comparative freedom, and unembarrassed capacity of attention, in which, in the case of a quasi-jury, the minds of the members would be placed, in comparison of the inward sense of responsibility and concomitant embarrassment, which to a considerable extent may be apt to have place in the case of a jury, where the fate of the suit and the conditions of the parties to it is dependent on the verdict in which they join; particularly in the case where the eventual punishment rises to a certain pitch of severity, and more especially where death enters into the composition of it.

5. In the jury school, the head-master is a functionary whose lessons are by the nature of his situation kept in a state of perpetual opposition to the universal interest; in the quasi-school, he is a functionary whose lessons are by the ties that have been brought to view kept in a state of continued conformity to that same only right and proper standard of rectitude.

II. Now as to the universality of its applicability.

A popular government is the sort of government for the use of which it has been framed: of its applicability, its usefulness, and capacity of being employed in such a government, such proofs as have presented themselves have just been seen. But governments there may be, into which, though altogether despotical, the quasi-jury not only would be useful if admitted, but might even stand, as it should seem, no mean chance of being admitted; while by the absolute power which, in cases of the highest importance, the jury has over the result of the suit, all chance of its admission may stand eventually excluded.

Two ways there are, by which, disjunctively or conjunctively, the reconciliation between the systems of evil and this instrument of good might be effected.

1. The one is—the exclusion of this bridle on the powers of the judge from those suits on the occasion of which the opposition between the interests of the subject many and that of the ruling few is brought into exercise.

2. The other is—the composition of it in such manner as to prevent it from thwarting the views of the compounders.

On the other hand, what cannot be concealed is—that in a government the object of which is to keep or reduce the intellectual part of the mind of its subjects to the condition similar to that of the higher order of quadrupeds, and at the same time the sensitive part to a worse condition, no such institution as that proposed could stand any chance of being admitted: the design of it would be too palpably adverse to the design of the government.

The government of British India may serve for an example.

1. With the exception of the many-seated judicatories framed upon the Westminster-Hall model, single-seated judicatories are secured by necessity, a stronger power than choice.

2. On behalf of the natives, it has no aversion to security for persons, to security for property, nor even to increase of property, so as the value of East-India stock, but more particularly so as East-India patronage be not diminished.

3. Understanding that the increase of national wealth depends in no small degree upon the security of property as against unlicensed malefactors, it has no objection to the most perfect degree of security for property against all depredation from which it derives no profit: so as the maximum of all depredation, out of which it sees a capacity of extracting profit for itself, be secured to it.

4. The power of authorizing appeal not being, according to the here proposed plan, extended beyond those offences, which while they are most frequent, inspire most terror to individuals, would not give umbrage to government: nor, how beneficial soever, is it an essential feature.

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A form of government not essentially different from that of the Anglo-American United States, but regarded as in a still higher degree conducive to the only proper ends of government, is that for the use of which the institution in question was devised. But if well adapted to the proposed form of government, not less so would it be to that of the so happily established one. Under that government, the jury, with its absolute power, has not the least tendency to become destructive: but an effect which to a considerable extent it cannot but have is,—the weakening it,—the weakening it, namely, by the chances of escape which, in the case of guiltiness, it affords in the instance of the classes of crimes which, while they are so pregnant with evil to the person and property of individuals, are in so high a degree more frequent than all other crimes.

For the absolute power of a jury it has no use. In that seat of popular government there are no attacks upon the liberty of the press, or liberty of public discussion;—no secret confederacies for producing changes in government;—no conspiracies against government, organized by government itself for a pretence for making oppression still more oppressive. In that seat of frugality and equality, there is no propensity among jurymen to favour those practices by which the revenue of government is diminished. A United States jury has no government extortion or oppression to avenge: proportioned to the defalcation from the public revenue by the success and increase of smuggling, would be the injury to themselves: the produce of the taxes is employed, the whole of it, in the service of all: no part of it is put into the pockets of the imposers.

With reference, therefore, to any government having for its end in view the greatest happiness of the greatest number, its aptitude consists in its want of aptitude with reference to any government that has for its ultimate end in view the maximization of the happiness of those who share in it, and for its mediate, or at any rate its collateral end, the minimization of the happiness of all who are subject to it.

§ 8.: Jurisdiction.

Question 1. Why to the power of a quasi-jury give the same all-comprehensive extent over the field of law, as to that of the judge, in respect to the species of causes?

Answer.—Reasons: 1. Because, if on any part of the field of law a sufficient demand for that institution has place, so has it in every other. True it is, that in the penal department, especially those cases in which application is made of the highest punishment, the demand is much more urgent than in the non-penal department, generally considered. But as to the non-penal department, if in any part of it the institution be preponderately useful, it rests with those by whom its title to all-comprehensiveness is disputed, to say at what point its utility ceases: and this will, it is believed, be found impossible.

2. Whoever it be to whom the institution of a jury, on the footing on which it stands at present in England, is an object of approbation,—if the question were put to him, what consideration that approbation has for its grounds, his answer would probably be, the operating as it does in the character of a check and bridle to the power of the judge. But for this security against misdecision, if any sufficient demand has place in any part of the non-penal department of the field of law, impracticable will be the endeavour to find any other part in which an equal demand has not place.

The incompetency of a jury under the English system in all causes of complexity has been already shown: that incompetency being greatly enhanced by those features of deficiency, the exclusion of the parties from the theatre of justice, and the inability of a party on either side, either to furnish his own relation in support of his own demand, or to call upon the other party for his.

These deficiencies had their origin in the artifices of the judges and other lawyers. In the Saxon time, and for a long time afterwards, the cast of the system was altogether popular. The locatee of the king presided, but the judges were all who were not in a state of slavery. In a judicial assembly in which, when all non-parties were present, so of course would be all parties, in so far as it was in their power. Each would be eager to tell his own story—each would be no less eager to extract matter of the like tendency from his adversary. In this way, the same meeting that gave commencement to a suit would commonly give termination to it. So it is at this day in those judicatories which are permitted to have existence for the recovery of small debts, and in those days scarcely were any suits known that would not now-a-days be regarded as small-debt causes. Such a state of things was too favourable to justice to be endured by lawyers.

In those days the judicial districts were small, and in the same proportion numerous. After the Norman conquest, judicatories were established by the king, each of them having, for certain purposes, jurisdiction over the whole kingdom. The whole kingdom was in this way converted into one vast judicial district—the communication at the same time difficult to a degree at present not easily imagined: and by the barbarity of the times, insecurity was added to difficulty. Under these circumstances, few but would find their convenience Edition: current; Page: [152] in being permitted to attend and plead by deputy. Under the name of attorneys and serjeants, a set of professional lawyers was thus formed, who became partners in the sinister interest of the judges by whom the system of procedure was framed; and it was out of the order of serjeants that men were taken to fill the judicial benches.

In this state of things, the carrying to the highest pitch the aggregate mass of delay, vexation, and expense, became of course the ruling object of the partnership in all its branches: expense for the sake of the profit extracted out of it; delay and vexation for the sake of the addition which those evils made to the expense.

A law-book, written in the time of Henry the Second, is to this point very satisfactorily instructive. It had for its author no less a man than the Chief Justiciary Glanville, the head man of the law. In profession it covers the whole field of judicature. It is occupied almost exclusively with forms of excuses for non-appearance. These excuses were already reduced to a system. Of the different species of causes as determined by the nature of the service demanded, scarcely is anything to be found: as little of any stages through which the business of judicature had to pass. An obvious inference—and it seems an incontrovertible one—is, that when once the parties were brought together in face of each other and of the judge, the matter was as good as settled: it was settled as in our day a tradesman’s demand of payment for a few shillings’ worth of goods is here and there in a small corner of the country allowed to be settled.

For both these deficiencies Rome-bred law presented a ready-made supply. To jurymen called from all parts of the kingdom—in some cases to the metropolis, in others to the ever-varying residence of the monarch—called from all parts, and consequently in a large proportion from parts at the remotest distance from their respective homes,—the attendance of a few days sufficed to constitute an enormous burthen. Those by whom Rome-bred law was imported from Rome to England, required not in their judicatories any such incumbrance as a jury-box: provided with a quantity of ready-made power, they knew well how to fill up any vacuity that could be imagined. Sitting without intermission, with hands open for fees, and ready to close upon them at whatever time and season offered, no causes could be too complex for them. At one grasp they took possession of the whole mass of moveable property throughout the country, as it became vacant by the death of the respective owners. Object they had no other than the application of it to pious uses: but of all imaginable uses, none could be more pious than their own.

The policy of the learned fraternity, as above, had kept the suitors out of the only place in which they could either deliver or extract from others vivâ voce evidence. Glad of course would they have been to have extracted it in the written shape: for when words are once designated by visible and permanent signs, they became capable of being taxed. But in this form, for several centuries they were not able to extract them: the original structure of this judicial system had not furnished machinery adapted to this purpose: small was as yet the number to whom it could be applied. Meantime their learned rivals and competitors were on the watch: no sooner was the supply of writing found sufficient, than they stept in, and applied it to their use.

To all who had anything to ask of them, those judicatories were open. They received petitions; furnished persons (who after telling their story upon paper were ready to give expression to them) with such questions as a person might wish to receive answers to, from those at whose hands he demanded them; and applied the whole force of their authority in exacting those answers, without which the questions would have been of no use.

Question 2. Why, in each suit, seek to render the authority of the quasi-jury co-extensive with that of the judge?

Answer.—Reasons: 1. For a reason similar to that mentioned in answer to Question 1. If in any one stage requisite, so in every other. In each stage the demand is the same as in every other: in each stage the temptations to which the probity of the judge stands exposed are the same.

2. To the unobligativeness of the authority here given to the jury, are the interests of justice indebted for the practicability of giving this extension to the application made of this check.

From the absolute power of frustrating the exercise of the power of the judge, and this in every one of the numerous stages which a cause, in a certain degree complex, must of necessity go through, a mass of confusion, and thence of injustice, beyond all power of calculation, might be the results. But forasmuch as, with the exception of the power of allowing or disallowing appeal in certain criminal cases, no obligatory power is here given to this section of the public-opinion tribunal—in a word no functions other than the auditive, interrogative, and censorial functions—hence it is, that from the magnitude of the extent given to its authority over the whole course of the suit in the way to its conclusion, no such nor any other evil can arise.

In the English system, whatever be the number of sittings in the course of which, on some occasion or other, a suit comes upon the carpet,—some of those sittings being in public, others in the closet of the judge, or of Edition: current; Page: [153] this or that one of his subordinates,—only in one of those sittings is a jury introduced.

Question 3. Why is not the authority of the quasi-jury here extended to summary sittings, nor thence to any summary suits?

Answer.—Reason: 1. Apprehension of the extent of the demand for individuals to act as quasi-jurymen, were such extension given, and thence of the mass of attendant vexation and expense.

In the case of appointed suits heard at the appointed sittings, measures can all along be taken, namely in the preparatory summary sittings and hearings, of the quantity of quasi-jury time necessary to be applied: and of the appointed days, the place in the calendar may be fixed, and in so far as the judge-principals have power insufficient, judge-deputies provided accordingly. Not so in the case of the summary suits.

The power of the judge is not by this omission left without check. In the first place remains the check imposed by the body of visitors, for the maximization of which arrangements have been made elsewhere.

In the next place comes the power of appeal here provided. This appeal is not from the judicatory of a subordinate to a superordinate judicatory, but from one judge to another, or even the same judge at another time: at which other time the quasi-jury will form a part of the judicatory, and thus the delay and expense attached to local distances will not be incurred. Whether, on the second and more deliberate hearing, the judge shall be the same or a different one, must, it should seem, of necessity be left to the discretion of the judge. If at the summary sitting the judge was a judge-depute permanent, the natural course would be, that at the appointed sitting it should be the judge-principal: the opposite course would be a sort of anti-climax. But it is only by necessity that the judge-principal stands excused from serving on the summary as well as on the appointed sittings: and so far as he does thus serve, the appeal thus made must be either to his virtually subordinate substitute, or to himself.

In the appeal ab eodem ad eundem, there is not in this case either absurdity, danger to justice, or even innovation. In English equity procedure, what is called a rehearing is no uncommon incident. True it is, that in one case of a rehearing, the appeal is in effect and fact from the first judge to a different one. This case is that where (a change in the situation of chancellor having taken place) the appeal is from the former chancellor to his successor. But another case of a rehearing is, where, at the instance of a party, the same chancellor hears a second time arguments on the same subject-matter as on the first.

In this case there is no fraud; all is what it seems to be. The fraud is, where the appeal is from the chancellor himself, to a judicatory of which he is not only a member, but the only thinking one—a judicatory in which, on ordinary occasions, none attend except two cyphers, who vote as they see him vote, without the pretence of thinking: on other occasions, none attend but the few sent thither by some latent interest, which, if made apparent, would show them to be each of them judge in his own cause.

“But,” says somebody, “you, in whose eyes these same individuals are not unapt to bear a prominent part in the business of legislation, on even an unbounded scale,—can you, with any consistency, regard them as unapt with regard to a function so limited in its extent, so subordinate in its importance, as that of pronouncing a yes or no in a case where nothing more is at stake than the fate of this or that individual?”

Answer: 1. In regard to the power I give to them,—it is under the pressure of necessity that I give it to them, because in no other hands could it be reposed without the absolute certainty of its being abused.

2. In the case of the power given to them as to the choice of legislators (in no instance whatever is any power of legislation given to them,) I leave them—as according to all experience I may without danger leave them—to be assisted, and, in as far as they please, guided by general reputation: no opinion, no judgment of their own, are they in that case called upon to pronounce. But in this case, no judgment can any one of them pronounce which is not his own: no less direct and complete is the cognizance taken of the matter in their situation, than in his situation is that of the judge. In the forming of it, no assistance have they that so much as professes to be impartial, other than that of the judge—of that very functionary, to whose power the one and sole use of them is to apply a check—and under whose guidance, in so far as, without forming, in relation to the matter in question, an opinion of their own, they commit themselves, their function is inefficient and useless.

§ 9.: Interrogative function.

Persons to whom, with a view to the ends of judicature any member of the quasi-jury is authorized to address questions, are in general all other actors on the judicial theatre.

In particular, they are as follows:—

1. Any party to the suit on either side; to wit, whether in his quality of party interested, or in his quality of party testifying—or in other words, litigant witness.

2. Any extraneous witness.

3. Any assistant, non-professional or professional, of any party on either side.

4. The pursuer-general, or any depute of his, if present, whether by office engaged in the particular suit in question or not.

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5. The defender-general, or any depute of his, whether by office engaged in the particular suit in question or not.

6. The registrar or his deputy.

7. Any fellow-member of the same quasi-jury.

8. The officiating judge, whether principal or depute.

Correspondent to the interrogative function on the one part, is the responsive function or service on the other: of an exercise of the interrogative function on the one part, the object is, to produce an exercise of the responsive function on the other.

To render obligatory the exercise of the correspondent responsive function, the following are the qualities which must have place on the part of the discourse uttered in the exercise of the interrogative function:—

1. It must be relevant; it must bear some assignable relation to the matter in question.

2. It must be apt; it must be such that an answer given to it may be eventually in some way or other conducive to the ends of judicature; it must not be frivolous.

If being neither irrelevant nor otherwise unapt, the interrogation addressed is followed by relevant and apt responsion, it is well. If being addressed to a person other than the officiating judge, and being in his eyes relevant and apt, such responsion as in his judgment is relevant and apt fails of being given to it,—the judge will apply his power to the exaction of such answer, according to the situation of the non-complying individual.

If it be a party, he will give him to understand, that of non-compliance the effect may be the loss of the suit: that is to say, if it be on the pursuer’s side, the non-performance in the whole or any part, of the service demanded by the suit; if on the defender’s side, the rendering of such service in the whole or in part, in so far as the rendering it will be at the expense of the non-complier: and such, accordingly, in the case of necessity, is the arrangement that may be made.

If it be an assistant, professional or unprofessional, of a party, and in the declared opinion of the judge such non-compliance has for its cause (especially if it be in concert with the party) the endeavour to save a party, he being in the wrong, from loss of suit as above, intimation may be made to him, that in relation to the interest of the party in the suit, such non-compliance will have the same effect as if it had been by the party himself that it had been manifested: and such, accordingly, in case of necessity, is the arrangement that may be made.

If it be a pursuer-general, or defender-general, or the registrar, or their deputes respectively, the judge will cause make a minute in terminis, of such discourse as by the several persons who took part in it was employed; which minute will constitute an article in the incidental complaint book.

So if it be a fellow-member of the quasi-jury.

So if it be the officiating judge.

§ 10.: Opinative function.

The judge’s recapitulatory statement, opinative decree, and imperative decree, having been delivered,—thereupon comes the quasi-jury’s function—the opinative function, having for its subject-matter the two above-mentioned decrees of the judge. Of this function the exercise is, in the nature of the case, susceptible of any one of the following shapes, and in any one of these shapes they are equally free to exercise it:—

1. Express refusal to pronounce any opinion.

2. Consent to the whole, tacitly given.

3. Consent to the whole, expressly given.

4. Dissent to the whole, expressly given, but without proposal of substitute or amendment.

5. Dissent to a part, expressly given, but without proposal of amendment.

6. Dissent to the whole, with proposal of substitute.

7. Dissent to a part, with proposal of amendment.

The opinion of the quasi-jury being in one or other of these shapes made known, entry is accordingly made on the record by the registrar, stating the shape in which it was so made known: silence, after presentation of all these several shapes to their option, and a sufficient pause for the expression of it,—silence being taken for tacit and universal consent.

If to the whole, or to a part, any substitute or amendment is proposed, the judge either assents to it, and changes or amends his decree or decrees accordingly, or declines doing so: in either case, entry accordingly is made on the record.

In the three first-mentioned cases,—namely, express refusal to pronounce opinion, consent tacit, and consent express,—execution in virtue of and conformity to the judge’s imperative decree, unless appeal be made, follows of course.

In the four last-mentioned cases, unless appeal be made, it rests with the judge to cause execution to have place: if appeal be made, it takes its course in these four cases, as it would have done in any of the three first.

As to the appeal, in what cases it shall, and in what cases it shall not have the effect of obliging the judge-immediate to stay execution, will be found determined, regard being had to the several particular cases in the penal and non-penal codes.

If from non-compliance with any substitution Edition: current; Page: [155] or amendment proposed by a quasi-jury, irreparable damage will ensue, while from compliance equiponderant damage will not ensue,—the judge will in this case regard himself as bound to make exercise of his suspensive, or say execution-staying function, to that effect.

Only in the case of its being the act of the quasi-jury in its collective capacity, can entry be made of dissent in any one of its four shapes as above; but the act of the majority of the jury is the act of the jury—of the jury in its collective capacity.

To a minority of the jury on this occasion, as to all persons on all other occasions, the press is open for the reception of the free expression of their sentiments.

On being thereto requested by the quasi-jury, the pursuer-general present is expected to lend his assistance to the purpose of giving apt form to any such proposed substituted decree or amendment, as above.

So, the defender-general.

Under the dominion of unwritten law, called also jurisprudential law, the question of law to be determined is—what, on the individual occasion in question, are those terms of the law which (in default of all relevant law made by the legislature) may with most propriety, as if it had been made by the legislator, be made by the judge—as being most analogous to the tenor of the rule of action which has place in the political community in question—statute law and jurisprudential law taken together.

The question of fact is either an absolute question or a comparative question. A comparative question is a question concerning degree; an absolute question of fact is every question in which the consideration of degree has no part. Degrees are either degrees of quantity or degrees of quality. Degrees of quantity are no otherwise determinably expressive in any absolute form than by numbers. Every absolute question of fact may, without regard to quantity, be so worded as to be susceptible of a true answer, either by a yes or a no. A question concerning quantity admits of as many answers as there are degrees in the scale in question, numbers, or series of numbers, contained in it, of which it is assumed that on the occasion in question some one or other is the proper.

A question, the answer to which is either guilty or not guilty, is a question concerning law and fact combined. In the answer expressed by the word guilty, two assertions are contained; namely—1. The individual in question, at the time and place in question, or at any rate at some time and place, did perform a certain act, positive or negative. 2. The act performed is of the number of those which stand interdicted by some portion of law, namely, legislatorially existing law, or by the judge in question may and ought to be considered as interdicted by a portion of imaginary law, to be made by him for the purpose.

Examples of scale of quantities:—1. Money: as where a fixation is to be made of the sum to be transferred from a defendant to a pursuer, in compensation for loss or injury; or from defendant to the public, in the name of punishment.

2. Time: as when, in case of chronical punishment, a fixation is to be made of the length of time during which it shall continue; say banishment, confinement, imprisonment.

§ 11.: Warrant for Appeal.

If to a set of men thus composed, any determinately efficient power be fit to be given, a case in which it may be of use to give it is, the giving admission to the faculty of appeal, divested of the inconveniences naturally attached to it, in those criminal cases in which, if left at the option of the defendant, it would be sure to be made by all who were guilty, and in so far produce much vexation to the injured, without benefit to the criminal. Among these are such as are at the same time of the most mischievous kind and the most frequent occurrence: in particular, offences of the predatory kind, when committed by habitual, and as it were professed depredators, especially if accompanied with homicide, house-breaking, or personal violence or menace.

In a case of this sort, appeal, if allowed, will come in a manner of course: it will come for the sake of the delay applied to the punishment, and the chance which all delay affords, or appears to afford, of ultimate escape.

But by every appeal, suffering is by the innocent and injured almost constantly experienced. Under the worst system in existence, the instances in which a person really innocent is condemned, and in consequence of condemnation actually made to suffer punishment, are probably, comparatively speaking, very rare: rare even under the system of secret procedure acted upon in despotic states; still more rare under the system of publicity which has place in England, and elsewhere under English-bred law. Under the here proposed system, with such checks as are here applied to the purpose of securing moral aptitude on the part of the judge, they may, it is hoped, be reasonably expected to be still more so.

At the same time, a state of things, in which it lies in the absolute power of a single person in the situation of judge (even with his moral aptitude thus checked and guarded) to subject a human being, perhaps innocent, to the extremity of allowed punishment, is a state of things which to a human mind cannot but present considerable alarm.

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But the state of things in which claims of this sort are not only so probable, but so extensively felt, is a state of things which, under a system of which the present proposed code forms a part, would scarcely in any instance have place. This state of things is one in which punishment, in its nature absolutely irreparable, is lavished, either with the most savage and deliberate cruelty, or with the most thoughtless extravagance. There is but one mode of punishment, the mischief of which is absolute and totally irreparable—and that is mortal punishment.

For argument’s sake, instead of mortal punishment, suppose even mutilation employed,—mutilation even in parts or organs more than one. Not altogether unsusceptible of reparation would even this punishment be: for, for suffering in this shape, reparation, and to a very wide extent, is almost everywhere actually in use: witness this, in the pensions granted in the sea or military service; and it is a matter generally understood, that by the individuals by whom on this account reparation in this shape and degree is received, it is not unusually regarded as adequate; insomuch that if asked, whether for the same reparation they would originally have been content, or would now, if it were to do over again, be content to be subjected to the same suffering, the answer would be in the affirmative.

The temperament here proposed is accordingly, that in such instances, in regard to those criminal cases of the higher order which are of the highest degree of frequency, appeal should not in general be admitted: but that, on a certificate given, either by an entire quasi-jury, or by a portion of it, or say perhaps, in some cases, even by a single quasi-juryman, that in his opinion innocence is certain, or culpability doubtful, appeal should be allowed to be made.

Of an arrangement of this sort, one effect, it cannot be denied, would be the putting it in the power of a criminal, by means of a bribe given to a quasi-juryman, or to the number of quasi-jurymen in question, to obtain a certain quantity of delay in the execution of the sentence.

Of appeal in highly criminal cases, in general, what shall be the effect? The appellate judicatory—shall it pronounce its decree upon the bare view of the evidence, as reported from the immediate judicatory?—shall it, of course, try the cause over again, by hearing evidence as if none had before been given?—or shall it have the option between the reported evidence and the giving a fresh hearing to the evidence? On the choice between these three courses, it is manifest how much would depend, and how considerable between them respectively might be the difference in point of effect.

So likewise as to the nature of the offence,—whether it has or has not anything in it of a constitutional character.

§ 12.: Costs of quasi-trial.

Of the quasi-jury, the expense taken in all its parts is very considerable: it is composed of the evils correspondent and opposite to the collateral ends of judicature, namely, delay, vexation, and useless expense.

This considered, two consequences follow:—

1. One is, that when, in the judgment of those who have any interest in the suit, this check with its expense is needless, the expense ought not to be incurred.

2. Another is, that in so far as the evil consisting of the expense is preponderant over the good consisting in the security, neither in this case ought it to be employed.

Hence a proposition which may naturally enough appear incontrovertible at first sight is, that if no one of the parties conceive himself to have any ground of complaint against the conduct of the experienced judge, there can be no use whatever in clogging the operation by a multitude more or less considerable of unexperienced ones.

If to the justice of these observations there be anything to oppose, it must be on this ground, or some such ground as this,—namely, that by reason of the relative ignorance and inexperience of a party, it may happen, that though the conduct of the judge has been unapt, and that to such a degree as to have been productive of misdecision to the injury of the party in question, yet by reason of his own relative inaptitude, it may be out of his power to determine, whether in that same conduct there has been or has not been anything unapt; or else, that by timidity—by fear of incurring the resentment either of the judge in question, or of the class of men to which the judge belongs, he may be effectually prevented from availing himself of any such security as that in question, supposing it here to have given him the faculty of employing it; or, lastly, that by indigence, it may happen to him to be incapable of making use of it.

To the order for quasi-trial, the judge adds, in relation to the expected costs thereof, such order as the nature of the case—consideration had of the pecuniary circumstances of the several parties—appears to him to require. The options are as follows:—

1. He leaves the burthen of costs in its natural seat; leaving it to each party to bear his own part of it.

2. In case of need, he requires a party or parties on one side, to make advance of money on this account, in any proportion, in favour of a party or parties on the other.

His care will be, not to suffer the additional delay, vexation, and expense, to be employed Edition: current; Page: [157] by the party who can best endure it, as an instrument for the oppression of one who can least endure it.

§ 13.: Features in jury-trial here discarded.

First come the features of jury procedure; and under the head of each of them the opposite state of things here will be briefly undernoted.

These may be distinguished into such as are regarded as being productive of evils opposite to rectitude of decision, the main end of justice—and such as are regarded as productive of evils opposite to the collateral ends of justice, namely, needless delay, vexation, and expense.

1. In a jury, number of persons twelve. In a quasi-jury, not more than three.

2. Of a jury, on failure of instantaneous agreement, forced transference to a closed room: no other persons present at their deliberation. Of a quasi-jury, no such transference, unless they desire it, or one of them desires it.

3. In the case of a jury, immediately before the commencement of the hearing,—a solemn promise exacted of each, to declare an opinion on one side of the question, whatever it be, or on the other side. On the part of a quasi-jury, no such promise is exacted or received.

Note that, on every question in relation to an opinion, and that which is in contradiction to it, the possible states of the mind are three; namely, decision on the affirmative side, decision on the negative side, and indecision: and of this last state, the exemplification will be the more frequent, the less the degree of instruction is on the part of those to whom the question is put. As for example, speaking of an individual in the character of defendant in a penal suit, questions no more than two: Is he guilty?—or, Is he not guilty? Answers which the nature of the case admits of, three; namely, Guilty, i. e. my opinion is, that he is guilty.—Not guilty, i. e. my opinion is, that he is not guilty; or. I have not been able to form an opinion whether he is guilty or not. Of the real state of the man’s mind, one or other of these answers cannot fail to be the true expression. The true one will be this third state, as often as the same opinion fails of being entertained by all of them, unless a decided disagreement has place—one or more entertaining the positive opinion, the other or others the negative. But for this absence of all opinion, frequent as it cannot but be, the law has not provided any expression: the consequence is, that in the instance of every one of the jurors who has found himself unable to form a decided opinion on either of the two opposite sides, the promise which the law has forced him to make is violated.

To the conception of the founders of Roman law, this natural state of the mind had presented itself: a form of words, namely, Non liquet, had accordingly been provided by them for the expression of it. But obvious as is the conception, on the part of the founders of English law in this particular, the state of mind was too barbarous to admit of it. No distinction did they know of between decision and indecision. As little perceptible to them was the distinction between unconscious and self-conscious misdecision—between blameless error and intentional injustice. Supposing the decision erroneous, the conclusion was, that those who joined in it could not but be conscious of its being so. Accordingly, by the verdict of a second jury, to punish the first jury with one and the same punishment in every case, and that a punishment involving utter ruin, was a practice as common as that of simply sending the original suit to a second jury is at present.

4. A declaration of an opinion on the one or on the other of the opposite sides of every question (except in the case of a special verdict)—which declaration is consequently—on the part of every one whose opinion fails of being exactly the very opinion declared as and for the opinion of the whole—false: and the correspondent promise violated.

In cases styled civil, a verdict styled special is admitted. But in cases styled criminal (not to speak of those styled civil,) no such verdict can, without the concurrence of the judge, be admitted: and in this case, too, of a special verdict, the same declaration of unanimity as in the case of a general verdict is indispensable.

In speaking of the verdict of a jury, the language universally employed is, as often as any such difference of opinion has place, undeniably false: what is said is, that it is unanimous; that is to say, that they are all of one mind. To render the expression true, it would be necessary to substitute to the word unanimous, some such word as univocal, all of one voice—all joining in the voice of the foreman, where, as for example, in a case called criminal, the words he pronounces are, guilty, or not guilty.

In the case of a quasi-jury, no such univocality is exacted.

5. To the promise thus made—the promise made by every man, that his opinion shall be the same as that declared by the foreman, is attached a religious ceremony, by which it is converted into an oath. The ceremony consists in a man’s saying, So help me God, and thereupon kissing a book, which for this purpose has been put into his hand.

The promise having been thus converted into what is called an oath (though with more propriety it might be called a vow,) Edition: current; Page: [158] every violation of it is thereby converted into an act of perjury.

In the case of a quasi-jury, no oath is administered; no perjury therefore can have place.

6. In case of disagreement, confinement inflicted on all, until a universal declaration of agreement has been produced on the part of every one of them: confinement accompanied with circumstances of unendurable and consequently never endured affliction, such as convert it into torture. Torture-master, the judge: the torture being continued till they all join in declaring an opinion dictated by him, or in his default, any one of the jury—until they all join in that one of the two decisions which is dictated by him.

If the verdict they come out with is not agreeable to the judge, he sends them back again till they are agreed; and this he does as often as he pleases. Of late, the functions of torture-master in this way have not frequently been performed by the judges: but there is nothing to hinder it, and it may be administered for any length of time.

Whether this function be or be not administered by the judges, it may on any occasion be administered by any one of the jurymen to all the rest.

The ceremony is to make every one of them keep his promise: the torture is to make some of them break it. The torture has always been more powerful than the ceremony. So plainly irresistible is the possible amount of it, that the actual scarcely ever amounts to anything more than a comparatively slight temporary uneasiness.

Thus it is, that for making eleven good men and true (for such is their appellation) perjure themselves, the equivalent of the prick of a pin suffices.

In the case of the quasi-jury, production of perjury being no part of the danger, neither in that shape nor in any other—neither by the judge nor by a quasi-juror, is any such function as that of a torture-master’s allowed to be exercised.

7. Concealment of what passes—concealment from all but the patients, while the torture is at work. The time is supposed to be passed in deliberation: but for this supposition, however, the nature of the case furnishes not any apparently strong ground. If the contest were a contest between understanding and understanding, yes: but the understanding has nothing to do in the business; the contest is between will and will; the question is, who is likely to endure the inconvenience? for whoever it be by whom it is longest endured, by that one are the terms of the verdict determined: the victory is to him by whom the part of an obstinate man is acted with the most success. To the arguments urged by professional advocates on the part which he espouses, it is not likely that under such circumstances any material and efficient addition should be made by him whose determination is to conquer or die.

In the case of the quasi-jury, of course no such concealment can have place.

8. Responsibility to the power of the legal sanction excluded altogether: punibility, none.

A quasi-juror is, in case of self-conscious delinquency, punishable.

9. Responsibility to the public-opinion tribunal, if not excluded altogether, minimized: nothing but the bare verdict, guilty or not guilty, being exposed to the public eye. The grounds of it being thus covered by impenetrable darkness, what blame can under such circumstances be passed is, in the instance of each one, reduced to next to nothing, by the multitude of those amongst whom it is shared.

Could but the light of publicity, by some such power as that of the Devil upon two Sticks, be regularly thrown upon the business of this well-closed theatre, the scenes that would be exhibited would be such as would be enough to dry up the stream of eloquence now so perpetually poured forth upon this matchless fruit of the wisdom of English ancestors. This, however, is physically impossible. Laid open indeed to the public might everything be that passed; but the scenes which in that case would be exhibited, would have little resemblance to those which have place among a set of men, in whose instance the sense of common distress and common weakness could scarcely fail to be productive of mutual indulgence and prudential silence. Out of a school thus circumstanced, tales of ridicule are in little danger of being told.

In the case of a quasi-jury, in the instance of any one of its three members, to whose mind an observation which he is desirous of communicating to his colleagues has presented itself,—if it be the pleasure of the others to hear him, they retire for that purpose. In the judicatory itself they cannot continue, because that would be incompatible with ulterior business. A retiring room is provided for them; and as to the giving admission to such other persons as the room will hold, the difference between the giving and withholding it, does not present itself as being of much importance.


In certain cases, superadded to the usual examination of the evidence, is another, styled a recapitulatory examination, in which cases the preceding examination is for distinction’s Edition: current; Page: [159] sake styled the original examination. Synonymous to recapitulatory examination is quasi-trial, as being before a quasi-jury.

At the recapitulatory examination, whatsoever evidence was received in the course of the original examination at one or any greater number of sittings and hearings, is received a second time, and if possible altogether, at one and the same sitting; no adjournment being made, unless at that sitting the time capable of being employed at one sitting be exhausted.

At the recapitulatory examination, no evidence is received which was not received at the original examination.

At the recapitulatory examination, the question of law may, at the desire of a party on either side, be reconsidered.

The original examination was performed by a judge acting singly. No recapitulatory examination is performed except before a quasi-jury. The judge has them for assessors. To bring the suit under the cognizance of this section of the public-opinion tribunal, is one principal purpose of this second examination.

Exceptions excepted, by what judge soever, whether principal or depute, the original examination was performed, so may the recapitulatory.

The cases in which a recapitulatory examination has place, are the following:—

1. Where, for his own satisfaction or that of the public, the judge himself desires it: for his own satisfaction, to wit, that the several portions of evidence which had been received on the original examination may be re-exhibited, confronted, compared, and reconsidered.

2. Where, on either side, any party is desirous that it should have place.

In certain cases, consideration had of the necessary severity of the punishment, and the probable helplessness of the class of persons most liable to be exposed to it, the law, for the better security of the defendant, requires the check of a quasi-jury to be applied to the power of a judge.

When the original examination has been gone through, it will rest with the judge either to pronounce the definitive opinative decree, or to appoint a recapitulatory examination; adding, in this case, the day on which, and the judge by whom it shall be performed.

The opinative decree pronounced, together with the imperative decree grounded on it,—it will rest with parties on both sides either to acquiesce in it, or to make requisition for a recapitulatory examination: which examination will, at the requisition of any party, be accordingly performed, unless preponderant evil in any shape shall have been shown as resulting from it; for example, intolerable expense to any party, or in consequence of the delay, a loss of evidence. A requisition for this purpose differs from an appeal in the ordinary sense of the word, no otherwise than in this, namely, that it may be from the judge in question at one time, to the same judge at another time: and by this quasi-appeal, the expense, delay, and vexation, produced by the transference of parties and evidence, to another and commonly more distant judicatory, is here saved.

If appointment made of the recapitulatory examination be on the part of the judge spontaneous, it will be desirable, if the other business of the judicatory permit, that the judge by whom it comes to be performed should be the judge by whom the original examination was performed. By the recollection of the lights afforded by the original examination, especially in respect of consistency and inconsistency as between the testimony given by a witness on the one occasion, and the testimony given on the other occasion by that same individual, additional clearness, correctness, and completeness, may frequently be given by the conception formed on the later occasion by the judge.

When by the judge no recapitulatory examination is desired, he so declares, and thereupon pronounces his definitive decrees: puting it at the same time to each of the several parties, whether it be his desire to have such examination or not: if of any one of them the answer be forthwith in the affirmative, a day and hour are thereupon appointed: if by any one, time for consideration is requested, a day and hour are appointed for the answer; and in the event of its being in the affirmative, the appointment of day and hour for the quasi-trial remains.

Till such answer is given, the decrees are declared provisional: when the answer is given in the negative, they are declared peremptory.

If it be at the requisition of a party, it may be matter of doubt and discussion, whether on the latter occasion it be better that the judge be the same, or a different one. To set against the advantages of identity as above, there may in this case be the disadvantage resulting from mutual dissatisfaction as between party and judge; the danger lest, from the dissatisfaction testified by the requisition, displeasure, with correspondent partiality, be produced in the mind of the judge: to obviate uneasiness on this score, as far as may be, will of course be among the objects of his solicitude.

Antecedently to this examination, to obviate useless delay, vexation, and expense, the judge will call upon the parties on both sides to admit all such relevant facts, in respect of which no sincere doubt can have place anywhere: giving them to understand, Edition: current; Page: [160] that of all delay, vexation, and expense, produced by insisting on the re-exhibition, or exhibition of evidence of a matter of fact in relation to which no sincere doubt can have place, the burthen will be made to fall on the head of him or them by whom the evil in this same shape has been produced; and that for any such insincerity, over and above the burthen of making compensation, punishment, under the name of punishment, may, whenever the occasion calls for it, eventually be inflicted.

The recapitulatory examination may have either, or both, of two purposes—namely, 1. Deriving additional instruction out of the mass of evidence; 2. Exposing the conduct of the judge to scrutiny and comment at the hands of the committee of the public-opinion tribunal specially commissioned for that purpose. To the first end it may be contributary, even where there is but one piece of evidence, and that a mass of oral testimony delivered from the mouth of one individual; though the case in which the probability of its usefulness is likely to be greatest, is that in which, by the collision of mutually contradictory testimonies, new lights indicative of the truth are struck out or endeavoured to be struck out: but although, in the case in question, it should be clear that in this shape no good can be produced, there remains that other shape in which it may in any case be produced.

The judge does what in him lies, to the purpose of preventing the right of requiring a recapitulatory examination from being employed by insincerity as an instrument for the manufacture of useless delay, vexation, or expense.

In this view, if upon completion of the examination the requisition appears groundless, he imposes upon the parties concurring in the requisition the burthen of making compensation for the damage produced by it in all shapes: if, moreover, it appears to him, that in the mind of the requisitionist it had no other object than the production of useless delay and expense, to the injury of any other party or parties, he imposes, in addition to the burthen of compensation, a pecuniary punishment to the use of the public; or in case of insolvency, the succedaneous punishment provided by the penal and non-penal codes. But the quasi-jury may, if they think fit, reduce in any proportion the ulterior punishment.

A requisition is said to be accompanied with insincerity, where the nature of the case being such, that on the part of the individual in question, while any such belief as that, by a recapitulatory examination, the evidence can be placed in a light in any respect new, is morally impossible, he perseveres in making his requisition notwithstanding.

In certain cases, the course of the original examination will lead it to assume the character of an explorative, or say an evidence-discovery examination;—during which, the procedure will wear the character, and be designated by the name, of investigatorial procedure.

Investigatorial procedure (as will have been seen in the chapter on Evidence,) has place, in so far as one lot of evidence is employed for the discovery of another.

A lot of evidence, which of itself would not throw light in any shape upon the fact in question, and which accordingly would not be fit to enter into the composition of the grounds on which the opinative decree is founded, may be not the less well adapted to the purpose of bringing to the cognizance of the judge, apt and appropriate evidence: as where auditor says, “I did not see anything that passed; but by oculator I have been informed that he did.” Here, then, from auditor, whose testimony with relation to the fact in question is not relevant, the judge is informed of the existence of another individual whose testimony, if the former said true, will, with relation to that same fact, be apt and appropriate evidence; the testimony delivered by auditor will, with relation to that same appropriate evidence, be indicative evidence.

It may happen, that not only the evidence of the same person, but the same article of evidence, shall operate on the same occasion in both characters—that of appropriate, and that of simply indicative evidence; as if auditor were to say, “I saw what happened, and so at the same time did oculator: he being at that same time near me, and looking the same way.

On the occasion of the recapitulatory examination, all evidence which has been merely indicative, and not appropriate, will of course be omitted; that is to say, the individual by whom it was exhibited will not on this occasion be examined; unless perchance such examination should prove necessary to the purpose of corroborating or infirming the testimony of him whose evidence had been stated as being relevant and appropriate evidence: as if oculator, though stated by auditor as having been present on the occasion in question, and upon the original examination admitted his having been so, should, upon the recapitulatory examination, deny his having been so; in this case it might be of use that auditor should be forthcoming for the purpose of being confronted with him, that so, with the help of mutual interrogation, the truth of the matter may be brought to light.

On a day in which there is no recapitulatory examination on the paper, the quasi-jury will add itself to the company of spontaneous visitors.

When in consequence of the recapitulation, the definitive imperative decree is delivered Edition: current; Page: [161] the burthen of the costs caused by the delay so produced will be imposed by the judge on the parties, in such proportion as to him seems meet.

If it be at the motion of a party that the recapitulatory trial takes place, and such motion of the party is sincere (the judge not being an object of his distrust), it will have had for its cause a hope that when, with a quasi-jury to insure a more attentive consideration, the judge has furnished his mind with this ulterior stock of instruction, his decrees will, on this second occasion, be more favourable than they were at the first.

If the party be insincere, the act in question may have had other causes. Examples are:—1. Material evidence, which had been unfavourable to his side of the suit at the original examination, is no longer forthcoming. 2. The delay, vexation, and expense, inseparable from such ulterior examination, is such as the party on the other side would not be in a condition to support.

Supposing the first of these cases to have place, the fact in question being ascertained, it may constitute a sufficient ground for refusing the recapitulatory examination—or rather for receiving, on the occasion of the second examination, the minutes of the evidence delivered on the former occasion, in lieu of a second oral examination of the same witness, performed in the course of the recapitulatory examination.

If by a party on either side the performance of the recapitulatory examination be objected to, on the ground of his being unable to defray the ulterior expense, this may be a sufficient reason for the refusal of it, unless the party or parties requesting it will provisionally take upon themselves the expense, and make compensation for the delay and vexation in other shapes.

Subsequently to the conclusion of the recapitulatory examination, and antecedently to the exercise of his opinatively-decretive and imperatively-decretive functions, the judge addresses to the quasi-jury his recapitulatory statement.

Of the topics touched upon in the judge’s recapitulatory statement, examples are as follows:—

1. On the pursuer’s side of the suit—

1. His demand, that is to say, the service demanded by him at the hands of the judge.

2. His ground in the field of law, and whether real law, or fictitious law.

3. His ground in the field of fact: individual facts, the existence of which he asserts as belonging to a class of facts designated as giving to a person (being of the class of persons mentioned for that purpose, of which he says he is one) a title to receive at the hands of the judge the service prayed, at the expense and charge of the person or persons on the other side of the suit. By the portion of law in question, added, to the facts the existence of which is asserted, is composed the efficient cause of the pursuer’s right, or say title, to the service which he demands.

4. Evidence adduced by him in proof of the facts, the existence of which at the times and places in question was asserted as above.

5. Arguments employed on the pursuer’s side; namely, on the question of law, the question of fact, or both; arguments having for their object the inducing the persuasion that the import intended by the law is the import he ascribes to it; and that the facts, of which he asserts the existence, did at the time and place in question exist accordingly.

II. On the defender’s side of the suit—

1. His defence, if any, consisting either of the denial of the justice of the demand; or of the counter-assertion of some portion of law, or matter of fact, the effect of which is (admitting the demand to have been just) to produce the extinction of it.

2. If denegatory in respect of the matter of law, thereupon comes his counter-interpretation of the portion of law referred to on the pursuer’s side.

3. If denegatory in respect of the matter of fact, thereupon comes counter-evidence.

4. Counter-argument.

5. If the defence has been counter-assertive, thereupon comes on this side the same topics as those on the pursuer’s side.

The state of the case, according to the judge’s conception of it, being thus brought to view, follow such observations, if any, as in his eyes are necessary or useful, to render apparent the aptitude of the decrees, opinative and imperative, which he has it in contemplation to pronounce.

Next and lastly follows the tenor of these same decrees, accompanied or followed by such further observations or comments, if any, as in his eyes promise to be conducive to that same purpose.


§ 1.: Appeal and Quasi-appeal, what?

Appeal is where, a definitive imperative decree having been pronounced by a judge-immediate, application is made by a party to a judge-appellate, requesting him to reverse or modify it.

Quasi-appeal is where, by the judge-immediate no definitive imperative decree has been as yet made; but by something which has been done, or omitted to be done by the judge-immediate, such effects have been produced as that, in disfavour of the quasi-appellant, the same effect has been, or is about to Edition: current; Page: [162] be produced, as would have been produced by a correspondent imperative decree.

A quasi-appeal is therefore a petition praying for relief, in a case in which by relative inaction, that is to say, for the want of some appropriate decree, and execution and effect thereto given, the quasi-appellant has suffered, and is suffering, a wrong to the same effect as if an imperative decree in his disfavour had been issued and executed.

If by relative inaction, the effect of a positive decree in disfavour of a party is produced, it will be by means of the want of forthcomingness on the part of some thing or things, person or persons, either to the purpose of justiciability, or to the purpose of evidence.

If it be for want of forthcomingness for the purpose of evidence, the justificative cause of complaint will be because, had the piece of evidence in question been forthcoming, it would either of itself or in conjunction with some other piece or pieces of evidence, have been at once sufficient to form an adequate ground for the definitive decree, which, on the side of the party in question, it is the object of the suit, or the defence, to obtain from the judge.

If it be for the want of forthcomingness for the purpose of justiciability, it will be because, had the thing or the person in question been forthcoming, execution and effect might in a certain shape have been given to a decree in favour of the party by whom it was prayed for in the course of his pursuit, or his defence, as the case may be; whereas for want of it, neither in that same shape nor in any other adequate to it, could such execution and effect be given to such decree, if issued.

Of forthcomingness on the part of persons and things, for the purpose of justiciability, examples are as follows:—

1. Production of a person within the physical power of the judge for the purpose of his being eventually placed within the physical power of a party: of the person of a wife, for the purpose of her being placed under the physical power of her husband: of a child, under the physical power of his or her father, or other guardian.

2. Production of a thing claimed by a pursuer for the purpose of its being placed under the physical power of such pursuer: production of a mass of property belonging to a defendant, for the purpose of its being sold in the way of auction, by an appropriate functionary of justice, to the end that the produce of the sale may be delivered by him to the pursuer, in satisfaction for a debt due to him from the defendant.

If for want of such dispatch as could have been and ought to have been given by the judge immediate, irreparable injury, by want of forthcomingness of some person or some thing (whether for the purpose of evidence or for the purpose of justiciability,) is produced, such judge is responsible, non-penally, or even penally, or in both ways, as the case may be.

Of incidents whereby forthcomingness, which in regard to a thing necessary as a means of satisfaction or of punishment, or of evidence, might within the proper time have been effected, but which by the lapse of that same time has been rendered impossible, examples are as follows:—

1. Expatriation—the thing carried out of the power of the whole judicial establishment, as well as of the particular judicatory in question.

2. Latentey—the place in which the thing is, unknown; namely, to those whose knowledge of the place where it is, is necessary to the forthcomingness of it.

3. Deperition.

4. Relative deterioration.

Of occurrences whereby as a means with relation to the like effect relative forthcomingness in the instance of a person may have been rendered impossible, examples are as follows:—

1. Expatriation.

2. Latentcy.

3. Insolvency.

4. Death.

5. Relative deperition or deterioration of appropriate faculties.

In so far as it is in the character of a source of evidence that the thing or the person might and would have been made to minister to the purposes of justice—to rectitude of decision, in the case in question, the causation of non-forthcomingness has the effect of suppression of evidence; suppression, of which on one side the effect may have been the same as forgery of evidence—namely, as forgery of evidence having with the same force the opposite tendency.

§ 2.: Grounds for quasi-appeal.

Necessary to the actual execution of any ordinance of the law, in conjunction with the means of proof, the means of execution, and the means of appropriate communication on the part of all pursuers, on whom the result depends,—are the disposition and the power to employ them to that purpose with effect. Suppose these requisites, all of them to have place—you suppose the effect to have place: suppose any one of them not to have place—you suppose the effect not to have place.

By delay, by what cause soever produced, whether by purely physical agency, or human agency; if by human agency, whether avoidable or unavoidable; and if unavoidable, whether with or without blame,—the effect of misdecision may in any one of these cases alike Edition: current; Page: [163] be capable of being produced. In so far as it is unavoidable, there is nothing to be done—in so far as it is avoidable, thereupon devolves upon the legislator the care of preventing it: of preventing it, and in so far as blame is attached to the existence of it, punishing it in an effectual manner.

By precipitation, the shapes in which the effect of misdecision, ultimate or antecedent, is also produced, are as follows:—

All the several modes in which, as above, it is producible by delay. For suppose, for example, an ultimate decision pronounced at a time when either the requisite means of proof or disproof that could have been employed, have not been employed, or some necessary means of execution, which, but for this promptitude of the decision, might have been employed, have failed to be employed: in this case likewise; the decision pronounced will either be misdecision, or be productive of the same effect as if misdecision had had place: an effect opposite to that which would have had place, had due execution been given to the law, may in consequence have had place.

In comparison with delay, promptitude has the advantage of not being, as delay essentially is, productive of vexation and expense, in addition to misdecision or the evil effect of it.

On the other hand, instances occur, in which by precipitation, misdecision, actual or more or less probable, is capable of being produced, in cases in which delay is scarcely of itself capable of being productive of the like effect.

Cases may on any sort of occasion have place, in which, to the rendering of a right decision, and consequently to the avoidance of misdecision, one or both of two things for the guidance of decision are necessary. These are—

1. Argumentation; hearing or reading from the lips or pens of others, such observations, whether on the question of law, or on the question of fact, as may be necessary to the placing the matter of fact or the matter of law in a clear light.

2. Consideration; which is, in effect, an operation of the same sort as that of argumentation, with only this difference, that the mind of the judge is the only seat of it.

A ground for a quasi-appeal, is any act affirmative or negative, on the part of the judge below,—any act affirmative or negative, the effect of which is or would be to place the quasi-appellant in the same situation as if an undue definitive decree in his disfavour had been issued and executed, or but for the remedy demanded by the quasi-appellant, would be.

Referable to one or other of the heads following, is every judicial act having the effect of misdecision:—

1. Denial, declared or virtual, of means of proof; to wit, either in the aggregate, or in the instance of some one understood, and assignable means or article of evidence.

2. Denial, declared or virtual, of some means of execution actual or eventual, in possession or in expectancy.

3. Denial, declared or virtual, of some means of communication necessary to the obtainment of some means of proof, or of some means of execution or acquittal in time for the purpose.

4. Denial, declared or virtual, of means of defence, actual or eventual, in possession or expectancy.

5. Undue delay, whereby the obtainment of some means of proof in appropriate time, or of some means of execution, actual or eventual, in a direct way, or by withholding of some means of communication, is prevented or unduly retarded.

6. Undue precipitation, whereby the obtainment or use of some means of proof, execution, or communication as above, or of some means of elucidation in the way of argument, is prevented.

Wrong, in these its several shapes, has its correspondent remedy, which, if the quasi-appeal be well grounded, it belongs to the appellate judicatory to apply: as also to each such remedy, its correspondent petition or demand.

1. For denial of means of proof: remedy, imperative decree, ordering supply of means of proof, in the shape belonging to the nature of the case, and determined by the appellate judge, either in exact compliance with the terms of the demand made by the quasi-appellant, or in conformity to his own more or less different views of what the case requires, as expressed in his correspondent opinative decree. Name of the correspondent demand,—Petition for supply of means of proof.

2. For denial of means of execution: remedy, imperative decree, ordering supply of means of execution, in the shape belonging to the nature of the case, and determined by the appellate judge, either in exact conformity with the terms of the demand made by the quasi-appellant, or in conformity to his own more or less different views of what the case requires, as expressed in his correspondent opinative decree. Name of the correspondent demand,—Petition for supply of means of execution.

3. For denial of means of communication; remedy, imperative decree, ordering supply of the means of communication, in the shape belonging to the nature of the case, and determined by the appellate judge, either in exact compliance with the terms of the demand made by the quasi-appellant, or in conformity to his own more or less different views of what the case requires, as expressed Edition: current; Page: [164] in his correspondent opinative decree. Name of the correspondent demand,—Petition for supply of means of communication.

4. For denial of means of defence: remedy, imperative decree, ordering supply of means of proof, or means of judicial assistance, for the purpose of information, advice, or argument, in the shape belonging to the nature of the case, and determined by the judge-appellate, either in exact compliance with the terms of the demand made by the quasi-appellant, or in conformity with his own more or less different views of the case, as expressed in his correspondent opinative decree. Name of the correspondent demand,—Petition for supply of means of defence.

5. For undue delay, whereby timely obtainment of means of proof or execution, or means of acquittal or defence, may have been prevented; and on the pursuer’s side execution, and on the defendant’s side acquittal, are at any rate retarded:—remedy, imperative decree, ordering dispatch, either in exact compliance with the terms of the demand, or in conformity with the more or less different views of what the case requires, as expressed in the correspondent opinative decree. Name of the correspondent demand,—Petition for dispatch.

6. For undue precipitation, whereby obtainment of means of proof, means of execution, means of communication, means of elucidation by argument, or means of acquittal or defence, have or may have been definitively or temporarily prevented,—Petition for reversal, with such particular remedy as the case may require.

In a certain case, over and above vexation and expense by delay, the effect of misdecision may be produced. This is when the period within which a means needful, and of itself, in conjunction with other means, sufficient to give execution and effect to the portion of law in question, might have been obtained, has been suffered to elapse: rectitude of decision is thereby rendered impossible, and misdecision is made to take its place. Say for shortness,—through delay, misdecision necessitated; or, through delay, right decision impossibilitated.

Of other competent grounds for a quasi-appeal, examples are as follows:—

1. Non-allowance of the faculty of taking a transcript of the record, or of so much as to constitute a sufficient ground for his petition.

2. Out of the record, omission of some particular which ought to have been inserted.

3. In the record, insertion of some portion of discourse not conformable to the truth.

4. In the record, substitution of some portion of discourse not conformable to truth, to some portion of discourse conformable to truth which ought to have been contained in it.

5. Insertion given in the record to matter irrelevant, or otherwise immaterial, whereby to the labour or expense of transcription a needless addition has been made.

In each of the above cases, the mischief from the wrong will of course depend upon its effect on the issue of the suit. In so far as things can be placed in the same state as they would have been in had the wrong not been done,—to place them in that state will be the appropriate remedy: in so far as this cannot be done, compensation at the expense of the wrong-doer, and of all concerned in the doing of the wrong, will be the remedy required.

The provision here made supposes, that the relief here allowed to be prayed for at the hands of the appellate judge, has in substance been denied by the immediate judge.

The hearing before the quasi-jury is the stage at which, if at any, arguments in form, with or without professional advocates, are heard.

If on any occasion the decision of the judge fails of being acceptable to a party on either side, that is the stage at which he prefers to the appellate judicatory an appeal, or a quasi-appeal.

The quasi-appeal is, as has been seen, a petition in any one of the six forms just mentioned. It is called a quasi-appeal, because though not in any one of those instances what has been commonly understood by the word appeal, yet in every one of them, the effect which it seeks to produce is the same as that which (in the case of success) is produced by it;—the remedy producing in favour of the complainant an effect which is the opposite of that which would have been produced by the alleged grievance complained of.

Of everything that passed, as well on the original examination as on the recapitulative examination (if being granted, it take place), minutes will be to be taken on this occasion, as on the others, by the registrar: so likewise may they by any and every person so disposed.

In this case, they may eventually form a ground of accusation against the judge, either before the justice-minister, or before the public-opinion tribunal, with a view to eventual dislocation, as per Chap. XXII.—Appellate Judicatories, Constitutional Code.

If by reason of non-compliance with a petition for a supply either of means of proof or means of execution,—misdecision or non-decision, misexecution or non-execution, shall have taken place, the judge by whose default misdecision or the equivalent of it shall have taken place, is responsible compensationally, or even punitionally, by decision of the justice-minister, if such failure has had evil consciousness or rashness for its accompaniment.

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§ 3.: Uses of Appeal.

What is the use of appeal? If judges who act in the first instance are subject to error—are liable to be deficient in appropriate aptitude—so are those who act in the second instance: and from the mere circumstance of their being set to work after the first, what ground can you have for the expectation of a higher degree of aptitude on the part of the second?

Answer: The use is, that one set of judges may have another to stand in awe of—a set in whose instance, if on any occasion it happens to him who acts in the first instance to be actuated by sinister interest, in whatever shape (love of ease included,) there will be another who, by the love of power as well as the sense of obligation, will be naturally disposed to correct his errors.

The purpose might therefore be in a main degree answered, if the functions were reversed: the immediate judges made appellate only, and the appellate judges made immediate only.

Hence one reason why immediate jurisdiction should not be given to appellate judges; for if it were, there would be none of whom they would stand in awe.

From immediate judges, arbitrary power is taken away, by the setting of appellate judges over their heads.

From appellate judges, arbitrary power is taken away by their not having the initiative; and because, if they make any undue alteration in the decrees pronounced by the immediate judges, there stand already those same decrees, with their respective reasons, constituting a standard by which the operations of the appellate judges will be tried by the public-opinion tribunal, as the operations of the immediate judicatory have been by the appellate.

When once it is established that there ought to be two sets of judicatories, one above another, it is better that those who have had most experience should sit in judgment over those who have had the least, than those who have had the least, over those who have had the most. But rather than there should not be two different sets, those of one set sitting in judgment over the acts of those who have acted in the first instance, it were better that appeal should in particular cases go from the appellate to the immediate judicatories, than that there should be no appeal from the appellate—than that there should be any judge whose proceedings there should be no other judge to take cognizance of, with a power of eventual correction.

Not having had the advantage of hearing the orally extracted evidence, while the immediate judge has had that faculty, the appellate judge is empowered, it may be observed, to reverse the decree of the immediate judge in respect of the matter of fact, although his means of coming at the truth are so much less efficient: and as the public-opinion tribunal at large is so circumstanced as not to have the possibility of availing itself of those superior means, any more than the appellate, to whom those means are denied, why not leave the power of determining the fate of the cause in the hands of those whose means for forming a right judgment are so much superior to any that can be employed either by the judge above, or by the ultimate superiors of the highest grade—the possessors of the constitutive authority, in their character of members of the public-opinion tribunal?

Answer: The least important advantage must yield to the most important. A check applied by superordinate authority to a power which would otherwise be arbitrary (placing everything dear to man in the hands of an unchecked functionary or set of functionaries,) is a security too indispensable to be foregone on any account whatever. The advantage, from vesting the power of deciding on the question of fact in the hands of the same individual by whom the evidence in relation to it has been received and collected, would be indeed a very considerable advantage; but in point of importance, this cannot enter into competition with the other. In all probability, this advantageous union will have had place in the great majority of the whole number of instances; only comparatively in a small proportion, will appeal have place; and of those cases in which it has place, only in a very small proportion will the appellate judge think fit to substitute his opinion to that of a judge whose means of judging the whole matter have been to such a degree more instructive than his. In this case, it is not for what he is likely to do,—it is only for what it will be seen that in case of necessity he has it in his power to do,—that the faculty of undoing what the immediate judge has done, is put into his hands.

By the public-opinion tribunal the exercise of a power thus extraordinary, is not likely to be left unwatched. The party in whose disfavour it is exercised, is not likely to be backward in complaining of any abuse, with which in his opinion it can be made chargeable.

In all the cases in which power is given to the appellate judge, of reversing the decrees of the immediate judge, on the ground of the evidence as it stands upon the record, power is also given to him to send the question of fact to be tried over again in a neighbouring judicatory: the orally extracted evidence, (which is the only sort of evidence to which the question applies) to be there extracted anew—such of it as remains still obtainable. This option, in case of his disapproving of the Edition: current; Page: [166] decrees below, it will be naturally expected that he should embrace, where the importance of the suit is such as to warrant the additional expense; and it is manifest how considerable the reduction is which will require to be made from this source, from the number of instances in which the decrees of the original judicatory are likely to undergo material change.

Number of cases in which appeal may be made, say 100; of these, the number in which the decree below undergoes alteration in consideration of the opinion formed on the question of fact, 10: of these ten, the number of those in which, without sending the question to another trial, reversal or other material alteration takes place, two. What is the consequence? Answer: That notwithstanding the power of reversal lodged in the appellate judicatory, the fate of the suit is decided, in 24 instances out of 25, by the immediate judge.

If the union in question is to such a degree beneficial as above supposed, the more beneficial it is, and is seen to be, the greater will be the degree of confidence reposed by the public-opinion tribunal in a decree passed by a judge by whom this advantage has been possessed, as compared with that reposed in the decree of a judge by whom this same advantage has not been possessed. Thus, then, the strength of the check rises in proportion to the demand for the application of it.

The greater the extent to which the public-opinion tribunal keeps itself in accordance with the opinion expressed by the decrees of the judiciary establishment, the more perfectly will the system of procedure fulfil the ends of its institution.

If, instead of committing the second trial to another judicatory, the appellate judge had the power of receiving and extracting the orally delivered evidence in his own person, and to decide in dernier resort on the ground of the evidence so collected and extracted, his power would thereby be unchecked and arbitrary as above; there being no other authorized to reverse or modify it. But suppose the second trial to be by another judge immediate, the decree of the second judge immediate would, in the same manner as that of the first, be subjected to reversal or modification at the hands of another judge, namely, the judge appellate, and thus saved from the charge of arbitrariness.

Stages of appeal, why not more than one? Answer: Because by a single one, the beneficial effects above mentioned are secured: and by every additional stage, the evil opposite to the collateral ends of justice would receive vast increase, while to the obtainment of the direct ends of justice no additional probability would be given.

Question: Why allow modification or reversal of the decree of the judge-appellate in case of his being actually punished, and not otherwise?

Answer: Because if the decree might be reversed or modified without the judge’s being actually punished, criminality would be imputed by the appellant as a matter of course, for the mere purpose of obtaining the right of appeal; and by wrongdoers in possession, frequently for no other purpose than that of increase of delay, vexation, and expense.

Question: Why not allow the appellate judicatory to have for its decrees any other ground than what has been afforded by the record of the proceedings of the immediate judicatory?—why not allow it to examine fresh evidence?

Answer:—1. The proper point of view for the appellate judicatory to contemplate the evidence and other proceedings in, is that in which alone the public-opinion tribunal can contemplate them.

2. Only from such evidence and grounds as he had before him, can the appellate form any just conception of the conduct of the immediate judge.

3. If the case be such, that subsequently to the decrees of the immediate judicatory, fresh evidence impugning the decree has come to light, it is to the immediate judicatory that it ought to be presented, and not to the appellate. If presented to the appellate, without passing through the immediate, the evidence would not have the benefit of an examination before a quasi-jury.

If it is for want of evidence that might and should have been contributed to and received by the immediate judicatory, that a supposed misdecision has taken place, the remedy that should be applied is a petition to the immediate judicatory—a petition for supply of evidence; of which petition, the denial forms a ground for quasi-appeal.

§ 4.: Proceedings before the Appellant Judge.

On the occasion of a petition for a supply of evidence, the party gives indication of the source from whence the evidence is desired, and states the terms in which it is his desire that the appropriate imperative decree should be expressed; adding, in case of non-compliance, a petition for the hearing of the former petition before a quasi-jury.

On the occasion of a petition for securing eventual forthcomingness of means of execution, the party gives indication of—1. The existence of the objects; or, 2. The articles in question, with their general description; 3. The necessity of apt arrangements for securing their eventual forthcomingness; and, 4. The terms in which it is his desire that the appropriate imperative decree shall be expressed; adding, in case of non-compliance, a petition for hearing as above, before a quasi-jury.

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On the occasion of a petition for a recapitulatory hearing before a quasi-jury, appointment is prayed of a day and time on which the hearing shall have place.

On the occasion of a petition for dispatch, the party gives indication of each particular operation or set of operations which it is his desire to see performed, and states the terms in which it is his desire that the imperative decree for the performance of it shall stand expressed; adding, in case of non-compliance, a petition for hearing as above, before a quasi-jury.

On the occasion of a petition for right execution, he states the particulars in which the execution given to the imperative decree in question has failed of being conformable to it; adding, in case of non-compliance, petition for hearing before a quasi-jury.

On the occasion of a petition for execution, he states the time and manner in which it is his desire the execution should be performed; adding, in case of non-compliance, petition for a hearing before a quasi-jury.

At the time appointed for argumentation, the official respondent on the appellant’s side declares whether he does or does not see any objection to the decision appealed from: if he does not, the decision is confirmed, unless the appellate judge of himself sees any sufficient specific ground, which he declares accordingly, for reversal or modification: if the declaration of the official respondent be in the affirmative, he thereupon states his objections, and argues in support of them; and upon hearing the argumentation on both sides, the judge appellate decides.

If on either side the party, or any substitute, professional or non-professional, deputed by him, appears and argues, the duty of the official respondent does not take place on that side.

In a penal suit, if the appellant, being the defendant, is not in a state of incarceration, he is at liberty to repair to the appellate judicatory, and make representation in his own person, as well as in the person of a substitute, professional or non-professional.

So, if he is in a state of incarceration, on paying the expense of conveyance in custody, unless his case be of the number of those in which, to warrant appeal, the fiat of the quasi-jury is necessary: neither in this case is he transferred to the appellate judicatory, unless for such transference a separate fiat from the quasi-jury be granted.

In a penal suit, if the decision of the immediate judicatory be simply confirmed without modification, to prevent undue delay, and on the part of the pursuer groundless vexation and expense, the defendant will be liable to additional punishment as of course; but with power to the judge-appellate to remit it in the whole or in part, for specific cause assigned. In regard to the quantum of such punishment in the several cases, provision will be made elsewhere. On this occasion, the minimum of that which will suffice for the prevention of insincere appeals is all that will be appointed.

In every case alike, where the quasi-appeal is regarded as groundless, or not sufficiently grounded, the appellate judge issues his opinative decree, Quasi-appeal (naming it;) to wit, Petition for supply of means of proof, for means of execution, &c., groundless, or not sufficiently grounded. Terms of the imperative decree addressed to the judge below. Proceed to execution, or proceed to acquittal; as the case may be.

If, from what appears on the face of the record, the nature of the case is such, that wrong in one or more of the above shapes having been committed, the appellate judge can see what is the proper issue of the suit, he declares as much, and decrees accordingly; giving such definitive decree as might have been given had the definitive decree been pronounced by the immediate judicatory in disfavour of the party wronged, and an appeal made against it in consequence.

If no such conception can be obtained, he declares so much by his opinative decree, and by an imperative decree orders a new quasi-trial, if that can afford a remedy, in the same judicatory or another, as seems to him most apt.

In any case, for injury in whatever shape produced by the wrong, he orders compensation.

§ 5.: Checks.

Except as to the differences resulting from difference of situation, the checks applied to conduct, and thence the several securities established against misconduct, in the case of the immediate, have place in the case of the appellate judge.

These differences are as follows:—

In the case of the judge-appellate, to the security afforded by the obligation on the part of the judge-immediate principal to have served in the capacity of judge-immediate depute, is added that of having served in the capacity of judge-immediate principal.

Modified in the case of the judge-appellate, is the check applied in the case of the judge-immediate, by the attendance of law students in the visitors’ gallery. Antecedently to the admission to practise in the appellate judicatory, to the five years of attendance requisite to admission to practise in the immediate judicatory, are added [] months and no more, of attendance in the appellate judicatory.

In the case of a judge-appellate, the check which, in the case of a judge-immediate, as applied to the virtual appeal from a judge Edition: current; Page: [168] without a jury, to a judge in the name judicatory with a jury, cannot have place a judge-appellate not hearing anything without a jury.

In the case of an appellate judicatory, the check applied by appeal to a superior judicatory has no place: except in the case in which the part allotted in ordinary cases to an immediate, is performed by the appellate judicatory, such as that of a complaint, of the number of those registered in the incidental complaint-book. In this case, from the decrees of the appellate judicatory, appeal lies to the justice-minister.*

To the situation of judge-appellate, the check applied to the situation of judge immediate, by his dislocability by the judge-appellate, is obviously excluded by the nature of the case.

As to dislocation: dislocable is an appellate judge, not by the electors of any subdistrict, but by those of the district or assemblage of districts over which his local field of service extends.

There follows, as to undue delay, a check not applicable to the case of an immediate judicatory. If within a certain length of time after receipt of the record, no decree has by the appellate judicatory been pronounced, the decrees of the immediate judicatory are thereupon understood to be confirmed: and if, after receipt of notice given of the lapse of the interval to the registrar of the appellate judicatory, and due time, to wit [] days, allowed for inhibition therefrom, no such inhibition has been received, execution is forthwith given by the immediate judge to his decree.

So, if in the mean time application for argumentation has been publicly made to the judge-appellate by a party on either side, and the faculty of argumentation has been refused, namely, directly or virtually, by non-appointment of day and hour, or by omitting to hear argumentation after appointment,—to the registrar it belongs to make entry thereof on the record, antecedently to re-transmission made as above.

So, if to application publicly begun to be made, the judge-appellate should refuse ulterior audience. Such refusal would moreover be a punishable offence, and might be denounced as such to the justice-minister, and thereby to the public-opinion tribunal, to pave the way for eventual dislocation.

§ 6.: Options of Judge-appellate as to Judge-immediate.

On view of the record, after entry made of his decrees opinative and imperative, in relation to the suit brought before him, whether in the way of appeal or in that of quasi-appeal, the judge-appellate will subjoin an opinative decree on the subject of the conduct of the judge below. The options given to him on these particulars are expressed in the words which follow:—

1. Judgment supposed erroneous, as expressed,—in respect of intention, conduct blameless.

2. Judgment supposed erroneous, as expressed,—mind supposed not sufficiently attentive: follows a statement, declaring the passages in which this opinion has had its ground.

3. Decree erroneous, as expressed. Suspicion is entertained of a deficiency in respect of appropriate aptitude, stating in which branch, moral, intellectual, or active, as the case may be: follows a statement, declaring the passages in which the opinion has had its ground.

If the last of those options be embraced, the judge-appellate transmits the record, or a transcript thereof, to the justice minister, who thereupon acts as per Chap. XXII. Constitutional Code.

§ 7.: Evidence discovered after ultimate decrees, how far producible.

In relation to any matter of fact, what may sometimes happen is, that after a suit instituted and terminated, evidence transpires, by which, had it been received in time, decrees opposite to those by which the suit has been terminated would have been pronounced. In such cases, the proper judicatory to apply to is the judicatory in which the suit has been so terminated. But in such a case, exceptions excepted, the judge will not grant and appoint a fresh recapitulatory quasi trial, unless, upon examination of the party applying, he is satisfied, that of the evidence in question the party had not, antecedently to the utterance of the definitive decrees in question, any knowledge.

Exceptions are as follows:—

1. Where, though at the time in question he did not either tender or require the extraction of the evidence in question, he gave indication of the existence of it—the non-production of it having for its cause the conception of the adequacy of the mass of evidence actually adduced, coupled with the desire of avoiding the delay, vexation, and expense inseparable from the production of it, and the persuasion of the non-necessity of it as above.

2. Where, antecedently to the termination of the suit as above, the existence of a certain article of evidence material to the corroboration of an article of newly discovered evidence, was known; but the newly discovered evidence itself not being known, the materiality of it could not be then known,—the Edition: current; Page: [169] reason for giving indication of it had not place therefore at that time.

Examples of such demand for subsequently and accidentally-discovered evidence, are as follows:—

1. Field of law the non-penal branch.—Subject-matter of suit, aggregate mass of the property of a person recently deceased:—Ground of decision, testament of a certain date:—fresh evidence subsequently discovered, a testament of posterior date, in the custody of a person whose existence or chief abode was not at the termination of the suit known to the party on whose behalf the fresh examination is required.

2. Field of law the penal branch.—Defendant in a penal suit for homicide:—quasi-trial, after recapitulatory examination, and by appropriate decrees opinative and imperative, acquitted. Evidence the existence of which was neither known nor suspected, afterwards comes to light. Examples:—

1. The defendant, in contemplation of death, smitten by remorse, confesses, but recants.

2. In a fit of drunkenness, or in his sleep, defendant utters particulars which lead to the discovery of evidence, the existence of which had not been suspected.

3. Habiliments, or other goods known to have been the property of the deceased, are discovered in the possession of the defendant: or the dead body, or the skeleton, known by some peculiar marks to have belonged to the deceased.

4. An individual who, in relation to the transaction, by which the death was occasioned, had been an eye-witness; or in relation to some fact probatively operating as an article of circumstantial evidence, returns from beyond sea, and makes known what he saw.

§ 8.: Security against undue punishment of an irreparable nature.

Without express confirmation by the appellate judicatory and the justice-minister, no imperative decree, ordering, under the name of punishment or otherwise, irreparable change in bodily condition, shall be considered as intended to receive execution. Examples of such change are the following:—

1. Mortal punishment.

2. Mutilation: loss of the substance, or use of a portion or organ of the body.

3. Stigmatization: understand, when performed in such manner that the effect shall be indelible.

4. In the case of a female, defloration: as where, on the termination of a suit, antecedently to known consummation, a female is ordered to be delivered into the power of a man adjudged to be her husband.

For the completion of the list, see the non-penal and penal Codes.


One main feature of natural procedure is a special regard to avoid adding to the suffering of the innocent, the indigent, and the (for whatsoever cause) afflicted: corresponding feature of technical procedure, blind oppression of the innocent, the indigent, and the already afflicted.

Examples:—Indiscriminate imposition of the burthen of costs in all stages from that of accusation to that of execution inclusive.

To this head belong all fees exacted of persons imprisoned on mesne [Editor:?] process, and thence before conviction: as well as on imprisonment in consequence of conviction.

The infinitely diversified, but in most cases enormous length of time, during which, in consequence of accusation, and before trial, in cases liable to incarceration, persons are subjected to it.*

In all cases of penal procedure, the declared supposition is, that the party accused is innocent; and for this supposition, mighty is the laud bestowed upon one another by judges and law-writers. This supposition is at once contrary to fact, and belied by their own practice.

The defendant is not in fact treated as if he were innocent, and it would be absurd and inconsistent to deal by him as if he were. The state he is in is a dubious one, betwixt non-delinquency and delinquency: supposing him non-delinquent, then immediately should the procedure against him drop: everything that follows is oppression and injustice.

Of this oppression, the immediate cause is the enormous interval, so wantonly interposed between one part of the procedure and another. This is a consequence of the unfeeling disregard above mentioned; of that disregard, the original sin of judicial procedure (more or less flagrant perhaps in all countries, but more particularly in England;) the substitution of the actual ends of judicature to the ends of justice.

To such a length has this disregard proceeded as to have produced a tax, and that to an enormous amount, on what are called free pardons. For pardon (though under English Edition: current; Page: [170] law altogether arbitrary,) there are several incontestably proper causes. As to this, see Constitutional Code, Chapter XXV. Justice Minister, § 5. Dispunitive function.

Oppression of the indigent, grievous in proportion to their indigence. Oppression in this shape has for its cause, the employment given to fixed sums, on whatsoever accounts imposed (viz. penalty for delinquency in its various shapes) by substantive law: taxes and fees to functionaries of both sorts, judiciary and professional, under procedure law.

The effect which blind fixation has in giving encouragement and birth to crime in all manner of shapes, is a topic of animadversion elsewhere. What belongs to the present occasion is the effect it has on the suffering of the absolutely or comparatively indigent, an effect which goes to the rendering the suffering of one individual, rise to some thousand times the amount of the suffering of this or that other, from a cause nominally, and in the eyes of a careless observer, the same.

The case mentioned as the case of the already afflicted, belongs more particularly to that in which the offence is not considered on the footing of a criminal one, but only as injurious, and thus producing a demand for compensa