The works of Jeremy Bentham T. 5

Front matter

THE

WORKS

OE

Letter I

My Lord, — In the account given in the public prints, of a speech of your Lordship’s, on the occasion of the proposed reform, “ relative to the administration of civil justice in Scotland,” I observed a passage inviting suggestions from without-doors. Should these my humble endeavours be found productive of any useful lights, it is to that invitation that the subject will be indebted for them.

If Scotland feels, as no doubt she will, and does already, her obligations to your Lordship for the proposition itself, so ought the three kingdoms, with their dependencies, for the invitation coupled with it. In this they may behold a constitutional comment on the primitive text, de minoribus principes consulunt, de majoi ibus omnes : ir this, the constitutional and only rational application of the principle of universal suffrage: information accepted from every source; suggestion, the work of the understanding, open to all ; decision, the work of the will, confined to the comparatively few, among whom, without Polish confusion, it can possibly be shared.

According to the terms of the speech, as stated in the paper that lies before me, in the designation made of the persons from whom communications were called for, the members of the Scottish Bar were the only persons particularly mentioned. If, from the letter of the invitation, any such limitation could with propriety be deduced, it was doubtless because, at the moment, the situation so designated presented itself to your Lordship’s notice, as the only source from which, on such a subject, any useful information could naturally be expected. Deviations from the ordinary state of things could not, in so general a survey, have naturally been taken into the account. But as Africa of old was noted for physical, so have the British islands been in modern times for psychological singularities. Hence it is, that, so far as the habit of contemplating the field of law in the point of view in question, that of a field of reformation and improvement (the very point of view, in which, on the present occasion, it lell in your Lordship’s way to bestow a glance upon it) — I mean, so far as the length of that habit can be regarded as capable of aiding the effect, or supplying the deficiency, of other qualifications — neither the Scottish bar, nor any other description of persons, could probably afford a pen, the suggestions of which would be less exposed to the imputation of temerity, than these, how small soever may be their value, which are now courting the honour of your Lordship’s notice.

Two noble and learned lords, in whose wisdom and experience your Lordship finds, day by day, an ever-increasing treasure, wait on this occasion, as on all others, your Lordship’s signal for pouring out the stores of it. Some time before those illustrious persons had, either of them, begun to make his profit of the imperfections, or, as some would say, the abuses, with which the regular system of procedure is spotted, or of which, as some would say, it is composed, the obscure interloper, whose bow is now making to your Lordship, had made it the business of his life to inquire into the means of remedying them.

As to the measure itself, viz. that of endeavouring to infuse the spirit of reform into Scottish judicature, preceding administrations reckoned this, it seems, in the number of their velleities : what they had been thinking of doing, your Lordship has done.

In the sort of relation your Lordship bears to the measure, I find a relief from an unpleasant difficulty. In your Lordship it beholds its patron and introducer ; the author, it is matter of ease to me not to know. To the Athenians their legislator presented (such was his plea) the best of all plans that would have been borne with : to Scotland, under a most crying urgency, Lord Grenville presents the best, or perhaps the only plan that was to be had.

As to the general complexion of the plan, to prevent temporary misconceptions, permit me, my Lord, to submit, to your Lordship, at this early period, the general result of my researches, in two very simple propositions : that in point of utility, there is enough in it to afford an ample justification to the provisional acceptance your Lordship has been pleased to give to it : that at the same time, when minutely sifted by a not unexerciscd hand, and with that continuity of attentiou

LETTERS ON SCOTCH REFORM. [Letter I.

which it was impossible, in your Lordship’s place, to spare for it, it will be found to fall extremely short of the professions, and perhaps expectations, of the learned author, not to speak of your Lordship’s indubitably sincere and generous wishes and intentions.

In the track of improvement, by a rare coincidence, for a certain part of the way, the interest of the suitor, that is, of the community at large, and the interest of the lawyer, happened to go hand in hand : — just so far I observe the interests of the community really pursued. But, a little further, the interests divide : and there it is that 1 see that separation taking place, which, in my view of the matter, could not but take place, the interest of the community pursued in demonstration only — the opposite interest of the lawyer being carefully protected, and even advanced, in reality and effect.

Before I proceed any further, I find myself under the necessity of stating a little personal incident, the mention of which would not have been thus obtruded on your Lordship’s patience, but for its indissoluble connexion with the present enterprise. Your Lordship’s invitation found me employed in putting, as I had flattered myself, the last hand to a work of a somewhat new complexion on the subject of Evidence ; a work which, though of greater bulk than I could have wished, was itself but an off-set of a still larger one, not wanting much of its completion, and designed to give a comprehensive view of what, in that extensive subject, taken in all its branches, appeared fit to be done in the way of law. Of that off-set, the object was — to bring to view the reasons, by which I had been satisfied that whether the Roman, the English, or any other system, were resorted to, the established rules of evidence, occupied principally in putting exclusions upon the light of evidence, were, almost without exception, adverse to the ends of justice ; a conclusion facilitated, in no small degree, by the observation, that there is not one of them, in English practice at feast, that is not departed from, and, without inconvenience or suspicion of inconvenience, set at naught, and that for reasons that can have no weight or truth in them, on any other supposition than that of the impropriety of the rule, in every instance in which it is observed.

In looking for the causes of this inconsistency (for where, in the department of legislation, a full light has been thrown upon a subject, causes are a topic that can never have

been passed by,) I saw reason to suspect

and that reason gaining strength at every step — that what at first view had presented itself as the result of primeval blindness and imbecility, was referable, perhaps, in a certain degree, to those causes, but probably in a much higher degree to sharp-sighted artifice ; that to enable themselves to extract from it that profit which constituted their recompense and inducement for taking their part in It, and that with as much case to themselves as the task of gathering in the profit admitted of, it was necessary for the founders, and successive supporters of the system, to give to it a direction, opposite at every turn to the ends of justice; that among the leading features or main pillars of this system, were the exclusions put upon the most instructive and indispensable sources of evidence ; and in regard to such information as was not in itself excluded, the preference given to a variety of artificial and less trustworthy shapes, in which they found means to clothe it, to the exclusion of the more natural and more trustworthy ; but that these were but a part of a numerous and complicated system of devices, all tending to the same altogether natural, but not the less sinister end : and that, in a word, on these points, as on all others, the reason why the system was and is so bad aB men feel it rather than see it to be, is, that the power found itself in company with the interest, and consequently the will, to produce as bad a system as the people, with the legislature at their head, could in their primeval, and as yet but little ameliorated, state of relative ignorance and helplessness, be brought, by the utmost stretch of artifice, to endure.

Thus it was, that the delineation of the instruments employed in the planting and culture of the predominant system (I say predominant— for there exists another of very different complexion, of which presently, and which, howsoever overpowered, has nowhere been altogether killed by it,) constituted a sort of episode, though, for the full comprehension of the subject, not an unnecessary episode, to the work having for its main subject the exclusions put upon evidence. Finding, then, in the system of reform put into your Lordship’s hands, what I could not but expect to find in it as a matter of course — that the profit and ease of the man of law were as carefully provided for as ever, the interests of the people, in their character of suitors, as completely sacrificed as ever to those original, and, with reference to the man of law, so much nearer objects — and that all the advantage given to the suitor was that comparatively small, though in itself not inconsiderable portion, in which the licensed plunderer would be a sharer with him : finding, in a word, that of all the devices above spoken of, there was not one, the full mischief of which was not reserved to the suitor, the full benefit, to say no more, reserved to the man of law, it was my original intention, for the more complete elucidation of the proposed plan of reform, and the resolutions by

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which the outline of it is delineated, to have subjoined the episode above mentioned — a sort of picture of the law of procedure — by way of appendix to this address. But this picture not being yet in a state of complete readiness for the press, and at the same time the bulk of it (according to the measure taken of it by my fears) too large for the proportion of your Lordship’s time, which, even upon the most sanguine calculation, could be expected for it ; the only feasible course seemed to be to submit to your Lordship, instead of the picture itself, a sort of table of the contents of it ; a table bearing about the same relation to the work at large, as in the case of those rude sketches, which, according to panoramic custom, are distributed for the accommodation of the curious, whose visits are received or expected, for the picture of the chief seat of Scottish judicature as exhibited in Leicestersquare, for the purpose of assisting their recollections or anticipations.

In Scotland, as in England, and elsewhere, the system of judicial procedure has been, in the main, the work, not of legislators but of judges: manufactured, chiefly in the form — not of real statutory law — but of jurisprudential law : — imaginary law, consisting of general inferences deduced from particular decisions. By primeval indigence, and inexperience on the part of the sovereign, judges left without salaries, but left with power to pay themselves by fees. Hence, as will be seen, a constant opposition between the ends of justice, and the ends (the original, and thence the actual ends) of judicature.

Proper direct end or object of the system of procedure (or adjective branch of the law,) giving execution and effect to the predictions delivered, to the engagements taken, by the other branch, the main or substantive branch of the law : viz. by decisions pronounced in

conformity to it Direct ends of justice,

prevention of misdecision (decision unconformable to the regulations and arrangements belonging to the substantive branch of the law,) and failure of justice. Failure of justice the same thing in effect as misdecision to the prejudice of the plaintiff’s side, but taking place without decision, and, for want of it, frequently without legal demand made, and

for want of it Collateral ends of justice,

prevention of delay, vexation, and expense, in so far as superfluous, or preponderant (viz. over the mischief from misdecision or from failure of justice.) Misdecision, when to the prejudice of the defendant’s side, may be considered either as comprised under the head of vexation, or as constituting a separate head of collateral inconvenience, and the prevention of it as constituting a separate end of justice.

Interest of the people, in the character of suitors, perpetual and complete fulfilment of the ordinances of the substantive branch of the law (the utility of which must, on this occasion, be assumed,) and thence of the direct ends of justice. Interest of the judges (the authors of the system of procedure,) maximum of profit and ease ; profit, as much as could be extracted, with as much ease as was consistent with the extraction of it.

Profit and ease increased by the same cause — the increase of the aggregate quantity or fees. Justice thus denied to the poor, to the labouring classes, to the great majority ot the people, as being unable to pay the fees ; thence the trouble of administering j ustice to them saved.

Limits set by various causes to the quantum of the fees exigible on each occasion : aggregate of fees thence not otherwise increasable, than by increasing the number of the occasions on which fees were exacted : factitious delay, vexation, and expense, the results or accompaniments of the increase so given to the number of those occasions. Aggregate mass of judges’ profit, increasing with the aggregate mass of delay, vexation, and expense ; hence the actual ends of judicature, the interests, and consequently the exertions of judges, maintained in a state of constant opposition to the interests of the people, and the ends, viz. thus far only the collateral ends, of justice. But, from delay, vexation, and expense, result, in various ways, failure of justice, and misdecision, to the prejudice either of the plaintiff s side or the defendant’s, whichever be in the right: hence a complete and constant opposition between the ends of judicature, and the aggregate of the several ends of justice.

Multiplication of the occasions of extracting fees, the cause of factitious complication, intricacy, obscurity, unintelligibility, uncognoscibility, in the system of procedure. By this complication a sort of sham science produced, arid with it, on the part of the suitors, the necessity of having recourse to the members of a distinct class or fraternity thus raised up, sole professors of that science, and of the arts belonging to it. Profit of these professional, as well as of the official, lawyers, arising out of the mass of factitious delay, vexation, and expense, and increasing along with it, the profit of the one class going hand in hand with that of the other. Hence the closest community and general identity of interests; — a virtual partnership, which may be called tho law partnership — with the judges, as managing partners, at the head of it.

On the part of mala fide suitors on both sides (suitors conscious of being in the wrong,) an interest in increasing the quantity of factitious delay, vexation, and expense : this mass of abuse their only instrument to work with ; employed by mala fide defendants for staving off, and oftentimes finally eluding, compliant*

THE LAW OF PROCEDURE, AND ITS CORRUPTIONS.

with the just demands on the other side : hy mall fide plaintiffs, for forcing compliance with unjust demands, or, on the occasion of some trifling demand, gratifying enmity, by the distress or ruin of the object. Community of interests thus effected, between mala fide suitors, i. e. dishonest men in general, and the members, ollicial and professional, of the law partnership.

Maid fide cause, a cause in which a party on cither side is in maid. fide. Proportion of maid fide to bond fide causes, in some instances as great as that of 89 to 1. In England, the Exchequer Chamber an authoritatively reported and notorious example.

Truth, the handmaid of justice; mendacity, of injustice. Interest which the judges had and have, in encouraging to the utmost the vices of mendacity on the part of suitors, that is, of the body of the people. Propensity to injustice being the source of maid fide suits, and maid fide suits still more profitable than bond fide suits, hence the interest which the partnership has, in placing and keeping in a state of corruption this the most important part of the morals of the people. Injustice being the great source of lawyers’ profit, hence love of injustice, hatred of justice, passions unnatural to all other men, natural to lawyers of all classes. The lawyer, but more particularly the judge, being under the constant necessity of concealing his passions and vices, as well as the interests by which they are generated — of cloaking the vices under the semblance of the opposite virtues — hence, under the influence of the still-existing mode of remuneration, insincerity, hypocrisy, and lawyercraft, become natural, and in a manner necessary, to the appointed guardians of the public morals.

A man being the better qualified for concealing his own vices from others, the more perfectly he has succeeded in concealing them from himself, hence a sort of imbecility — a relative and partial imbecility — a disease of the understanding: — another vice endemial among lawyers. Hence a general propensity and aptitude, to mistake for justice the injustice by which they profit.

Fees thus rendered the matter of corruption. Various channels, some open, some more or less disguised, through which this matter has been taught to flow, into the pocket and bosom of the judge. Examples: — , Receipt propriA manu; — Sale of a fee-yielding office for full value ; — Fine or bonus on admission ; — Fee-yielding office given in lieu, and to the saving of the expense, of other provision fora son, or other near relation, or dependent, he doing the duty — or else not doing the duty, but paying a deputy ; — Fee-yielding office given, or the profit of it made payable, to persons standing a3 trustees for u principal, declared or undeclared ; if unde-

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dared, supposed of course to be the judge himself.

Under this state of things, the members of the law partnership, natural and irresis tible enemies of the rest of the community. Judges, and the other offidal members, reconcilable enemies : reconcilable, viz. by the substitution of salaries to fees ; but not unless the conversion extends, without exception, through all the offices : on these terms, and on these alone, would the partnership be dissolved. The professional members, enemies absolutely irreconcilable ; because professional profit admits not of any such compensation. The moral diseases endemial to this branch of the partnership, not, like those of the other, capable of a complete cure : — but yet of a very considerable remission ; viz. by cancelling the mendacity -license, granted at present to them and their clients, in the manner explained below.

Were the mass of suffering, inflicted on the people by delay, vexation, expense, and consequent misdecision, as above, no more than equal to the mass of enjoyment accruing to the law partnership by profit gained, there would be no use in the substitution of salaries to fees ; no use in rescuing non-lawyers from oppression and pillage under lawyers. But, besides that the sum being given, and circumstances on both sides equal, enjoyment from gain is never equal to suffering from loss ; and that the portion which, being added, converts affluence into opulence in the hands of the lawyer, being taken away, converts, as to the greatest part of it, indigence into absolute ruin, in the person of the distressed debtor, and his frequently no less distressed creditor ; that part of the factitious expense which goes to the account of lawyers’ profit, is but a part, and that commonly but a small part, of the whole loss, exclusive of the other evils that accompany it. Hence, although (which is impossible) professional lawyers’ profit were to be done away altogether, the welfare of the whole community, lawyers and non-lawyers included, would in a prodigious degree be promoted by the change.

Separately taken, so minute in many instances are the parcels in which the matter of corruption, in the shape of fees, flows into the pocket of the judge, as to be, to appearance, incapable of creating any efficient sinister interest, in a bosom so strongly strengthened against its influence by remuneration in the shape of salary : but, the degree of seductive force, being as the quantity of the aggregate mass, and not affected by the minuteness of the component parts, this minuteness serves but to disguise the force of the seduction, without diminishing it.

System of procedure generated by the influence of this sinister interest, the technical or fee-gathering system : technical, from its

LETTERS ON SCOTCH REFORM.

Letter L] NATURAL ANt) TECHNICAL PROCFDIiRF COMP RED nature ; fee-gathering, frotn its object and its cause. Courts in which this system is acted upon, courts of technical procedure. Technical procedure, Styled at present regular: courts in which it is acted upon; courts of regular procedure.

System of procedure, which has for its object the ends of justice, and for its model the course naturally pursued for the discovery of truth and administration of justice, as towards children, servants, or other dependants, in the bosom of a private family, the domestic or natural system of procedure ; requiring nothing but appropriate powers for the extension of it, with its benefits, over the whole field of political judicature : to which head belong, in some, but not in all instances, the modes of procedure, which at present, in contradistinction to regular, are designated by the name of summary. Courts in which this system is pursued, Courts of Natural Procedure.

System of technical procedure, the work of judges, executed by them in the form — partly of statutory law (as in the case of English rules and orders, Scotch acts of sederunt. See.) partly of jurisprudential law — with or without occasional patches in the form of statutory law, stuck on by the hand of the legislator, but mostly under the guidance of the members of the law partnership, official and professional, co-operating in concert; consequently under the influence of the sinister interest, opposite, as above explained, to the interests of the community and the ends of justice.

System of natural procedure, the work of the legislator, the legitimate and acknowledged legislator, acting in pursuit of the interests of the community, and the ends of justice.

Courts in which the system of natural procedure is exclusively or principally pursued — In criminali, the courts martial and preparatory courts of inquiry, in both branches, land and maritime, of the military service : in criminali minori, courts composed respectively of commissioners in matters of excise, customs, stamps, assessed taxes, hawkers and pedlars, London hackney coaches : in criminali minori et civili, the courts composed of justices of peace, acting singly or in numbers, disengaged from the technical trammels which await them in their periodical great sessions : in civili, the courts of requests called courts of conscience, the courts composed of commissioners in matters of bankruptcy ; the courts, primary and of appeal, recently instituted for the collection of taxes on property and income ; the arbitration courts, composed of judges nominated by the parties, but acting under powers given to them by regular courts, by authority from statute-law. — In Scotland, the courts composed of justices of the peace, sitting in periodical sessions, but acting summarily under the name of small-debt courts : in ci-devant France, the consular courts, courts composed of mercantile men, sitting on causes of a Mercantile nature : in the Danish dominions, the recently established, more extensively operating, and justly celebrated reconciliation courts.

With us, again, in a higher sphere, the committees of either House of Parliament, sitting in the character of courts of inquiry : the several courts instituted of late years by the legislature for such a variety of purposes; — settlement of public accounts — liquidation of claims — investigation of abuses, or other objects of reform; — and, though last mentioned, yet not least, that noble and necessary bulwark of the constitution, which owes to your Lordship’s illustrious father its existence and its name.

Were it on this occasion worthwhile, other cases might be found, in which justice has broke loose from the shackles forged for her in the cavern of chicane ; but these may, I should hope, suffice to prove, and to the conviction of all but those who, by interest or interest-begotten prejudice, stand bound never to be convinced, that in no sphere of judicial inquiry, from the lowest to the highest, can the charge, either of impracticability or dangerousness, attach upon the honest pursuit of the ends of justice, by the light of common sense.

But the further this only honest system is from being either dangerous or impracticable, the more complete (as I flatter myself your Lordship will perceive) the moral impossibility that any further extension of it should meet the wishes, or so much as the endurance, of the man of law : — a system under which there is no factitious delay, vexation, or expense ; nor consequently factitious profit, parcel of that expense ; in which misdecision is but an accident, instead of being, as under the hitherto predominant system, a frequent and probable, not to say predominantly probable result, prepared by the operation of a variety of assignable, and peculiarly appropriate causes : a system under which failure of justice can scarcely find a place, instead of being, as under the predominant system, in virtue of the arrangements taken for the reconciliation of ease with profit, the inevitable lot of the great body of the people.

Devices, a denomination that may serve to characterize the several arrangements, principles, and practices, peculiar to the technical system, in contradistinction to the natural ; all of them being so many modes of action, conducive at any rate to the ends of judicature; and therefore, upon the face of them, contrivances suggested by the desire of giving, to the greatest practicable extent, fulfilment to those sinister ends.

Follows a list of those devices. For greater perspicuity, two columns are placed side by side, one containing a brief designation of the device, the instrument of technical procedure; the other, the correspondent state of things under the natural system of procedure.

Logically speaking, the quality of the natural system will be seen to be chiefly of the negative cast ; constituted by the absence of those devices, which constitute so many characteristic features of the technical system.

The arrangements here referred to the natural system, are — partly so many arrangements actually in use and practice in the courts of natural procedure, in some, in most, or in all of them, — partly so many ulterior arrangements, such as, being conducive to the ends of the natural system, that is, to the ends of justice, would be necessary, to the purpose of giving, to the power and benefi-

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cial influence of the natural system, an extent commensurate with that of the whole field of judicature.

In the work at large, under the head of each device, explanations are given, where they appeared necessary, under four subordinate heads : — nature and description of the device ; examples of the employment given to it in the established system ; its repugnancy to the ends of justice ; its subservience to the ends of judicature. These elucidations, all of them applicable to the English, most of them (but, happily for Scotland, not all of them) applicable to the Scottish, modification of the technical system, pruned and sheltered by your Lordship’s learned adviser, would occupy too much room here, but remain, upon occasion,, at your Lordship’s command at any time.

LETTERS ON SCOTCH REFORM.

I. Arrangements of Natural Procedure.

1. At the outset of the cause, and afterwards, where necessary, the parties, willing or unwilling, heard in the character of witnesses as well as parties, face to face ; except in so far as, by reason of distance or otherwise, such confrontation and mutual explanation is, physically or prudentially, impracticable ; prudentially, i. e. without preponderant mischief in the shape of delay, vexation, and expense : preponderant, viz. over the mischief in the shape of increased danger of misdecision, for want of the security against deception, afforded by such personal appearance, and consequent explanations and examinations; »uch conjunct appearance, preceded or not by ex parte appearance of the plaintiff, acrording to the nature of the case.

2. By or in the name of a party, no writing except in the character of evidence ; nor in that character, except in the shape of minutes taken of the viva voce testimony, delivered by the parties respectively on such their personal appearance as above, when either party thinks fit provisionally to take upon himself the necessary expense : or where testimony in the ready-written form becomes necessary, either in the character of a supplement or that of a succcdaneum to vivA voce testimony, as per article 3. For the use of printing as a succedaneum to writing in the case of the instrument of demand, see article 1 1 .