The works of Jeremy Bentham T. 2

Front matter

THE

WOEKS

OF

Preface

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 ajid 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 j ublication, 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 iii print,) I shall, if alive, be occupied according to the measure of my ability, in making such amendments as 1 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.

Introduction

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

miNCIPLES OF JUDICIAL PROCEDURE.

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 each instance 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 com[»osed 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 ari.-tocracy, or the majority of them, would prevail ; and in the ca>e of a Monarchy, the interest of the monarch.

In a mixed monarchy, composed ot the monarch and the aristocracy, it would he the conjunct interest of the monarch and the memhers of that same aristocracy that is to say, of the m.ijority 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 ot those same three authorities.

Thus much as to substantive law. But in the case of adjective law, or say procedme law, to a greater or lesser extent the law has had for its authors, in proportions infinitely diversified, legislative authority (ill its several modification, and the judicial authority— ill a word, the jud.uc.s, who "iidev the notion of interpreting, where, in fact, there was nothing to be iiitei|)re1ed — have been snlTered, in effect, to legislate. The consequence is, tliat 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 wliicn 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, luive 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 impos-sibility 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

INTRODUCTION.

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 aiiv 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 riuestion of law which is invested with a certain degree of importance maybe 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 tind aderpiate inducement for giving exercise to it.

In the legislative assembly, proposed laws cannot ^vithout 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 comple.xion, 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 sec 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 wliO lias the means of living while the work is going on, that considoiation is no sudiciciit 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 [irobability of its being immediately taken into consideration iii the legislative assenildy (and nltimately adopted) has presented itself, — what is the coiiserpicnce ? Answer : That the necessary time in qnesticn

— 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, wickedne.ss in every shape — are they then to be perpetuated? — all for fear of innovation ?

Whoever takes in band these pages, will do well, in the first place, to lay out of his mind everything that belongs to tlie existing system, baptized the technical. He svill see there, when the time comes, ncfliing but eoiifiisiou — a purposely and most elaborately organized system of coufusion. Of itself, it aeeordingly 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 arrangemetits and ordinances, by elicitation made of the truth of facts, the question will always be, wbetlier 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 arrivingat the truth, the natural course, it will he seen, is the same in all cases. Under the fechnical system, the course pursued is different, according to tlie various judicatories employed, with their diffcM-ent portions of the field of law (logical or geographical) assigned to them, or occupied by them, with correspoiidiug different sets of powers and duties — common law, equity law, civil law, penal law, ecclesiastical law, admiralty law, general sc-- sions law, petty sessions law, ami so on — all differing so widely from one another, while pretending to he 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 he, ami will accordingly lie seen to lie; all unapt — - relation had to such their [irofessed and falsely prctomlfd jiiirpose; all good, — - relatifni had to tlieir iiou-professed, but disguised, and cmleavoured-to-be-coucealed, purpose : viz.

the promotion of the particular atid sinister interest of the institutor.e, at the expense and bv the sacrifice of, the universal interest.

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

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

2. Cases of necessity cxeepled, atfcndaiiod

PIUNCIPLES OF JUDICIAL PROCEDURE. [Ch. I.

of parties in their own case, not less universal and punctual tlian that of third persons in the character of witnesses.

3. With ample precaution against abuse, necessary e.xpense of evidence, and profes sional assi.stance, provitled 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.

Chapter I. Gcnkr-u, View — Ends Of Judicature

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 tiie accomplishinent 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 maile to suffer more than is necessary ; but, what is worse, hardship (to an indefinite amount) nuiy 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 afititude — no active aptitude — no appropriate knowledge or judg- .Tient on the part ot the judge — can render him completely secure against so deplorable • result. No otherwise than through the medium of such information as comes in Ids 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 pyhlicitg : — 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 ha.s had place.

Of the necessity of making arrangements of this sort — of the ditliculty 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 uni versally-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 instru-

Ch. I.]

ment 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 hy 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 plaintiffs 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.

Hj 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-existcnceof 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 vexations defence.

In certain cases, assistance should be rendered at the expense of the public, or of spontaneoiisly-eontribiiting 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.

I'he 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 cngagciueut to repay in case of success, togetiiei' with a premium adequate to the risk.

3. A fund to be provided tor this purpose at the exftcnse of the public.

As to blame, independently of any wliich may have had place at the origin ot the suit: on the part of the pursuer, in the case of a pursuit accompanied with the consciousness of its groundlessness ; on the part oi the defendant, a defence under the like consciousness of its groundlessness, — blame may have place on either side; and this us 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 ot the opposite side.

As to the provision of fine or other punishment for vexatious pursuit or defence, if security in that shape were not [)rovided, o’jservc the evils that would ensue

GENERAL VIEW — ENDS OF JUDICATURE,

PRINCIPLES OF JUDICIAL PROCEDURE. | Ml. I.

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 tlie 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 in- .stance of any person or any number of persons ap[)earing 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 cxerciseable over all would thus be put into the hands of all — a tyranny, f.nd 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. Rut as many as arc 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 tlie 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.

Rut omitting, for shortness, reputation and condition in life, for placing the person ami property at the judge’s disposal, the means requisite are exactly the same, whatsoever may be the disposition which, by his uhimate 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 lite 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 tothese 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 burthensosne kind to the proposed defendant, and that in which it is of the least burthensome kind. The more urgetit 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 pliysical faculty of applying the appropriate remedy, how burthensome soever to the defendant. Rut 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 Jiced of a sort of provisional means of execution, of which in these cases the eventual good has a preponderance over the actual evil.