Administration of Justice.

From: Essays on the Principles of Morality, and on the Private and Political Rights and Obligations of Mankind (1834).
Author: Jonathan Dymond
Published: Harper & Brothers 1834 Philadelphia


  IN considering this great subject, the inquirer after truth is presented, as upon some kindred subjects, with one great pervading difficulty. If he applies the conclusions of abstract truth, such is the imperfect condition of mankind, that it loses a portion of its practical adaptation to its object. It he deviates from this truth, where shall he seek for a director of his judgment? He is left to roam among endless speculations, where nothing is to be found with the impress of certain rectitude.

  The dictate of simple truth respecting the administration of justice is, that if two men differ upon a question of property or of right, that decision should be made between them which justice, in that specific case, requires; that if a person has committed a public offence, that punishment should be awarded which his actual deserts and the proper objects of punishment demand.

  But if this truth is applied in the present state of society, it is found so difficult to obtain judges who will apply the sound principles of equity, judges who will exercise absolute discretionary power without improper biases, that the inquirer is fearful to pronounce a judgment respecting the rule which should regulate the administration of justice.

  Men, seeing the difficulties to which an attempt to administer simple equity is exposed, have advanced as a fundamental maxim,—that the law shall be made by one set of men, and its execution intrusted to another, thus endeavouring, on the one hand, to prevent rules from being made under the bias resulting from the contemplation of particular cases, and on the other, to preclude the appliers of the rules from the influence of the same bias, by obliging them to decide according to a preconcerted law. But when we have gone thus far,—when we have allowed that questions between man and man shall be decided by a rule that is independent of the merits of the present case, we have departed far from the pure dictate of rectitude. We have made the standard to consist, not of justice, but of law; and having done this, we have opened wide the door to the entrance of injustice. And it does enter indeed!

  The consideration of this state of things indicates one satisfactory truth,—that we should pursue the rule of abstract rectitude to the utmost of our power; that we should constantly keep in view, that whatever decision is made upon any other ground than that of simple justice, it is so far defeating the object for which courts of justice are established; and therefore, that in whatever degree it is practicable to find men who will decide every specific question according to the dictates of justice upon that question, in the same degree it is right to supersede the application of inferior principles.

  Am I then sacrificing the fundamental principles upon which the morality of these essays is founded? Am I, at last, conceding that expediency ought to take precedence of rectitude? No: but I am saying, that if the state of human virtue is such that not one can be found to judge justly between his brethren,—men must judge as justly as they can, and a legislator must contrive such boundaries and checks for those who have to administer justice, as shall make the imperfection of human virtue as little pernicious as he may. If this virtue were perfect, courts of law might perhaps safely and rightly be shut up. There would be a rule of judgment preferable to law; and law itself, so far as it consists of absolute rules for the direction of decisions between man and man, might almost be done away.

  Now, in considering the degree in which this great desideratum—the substitution of justice for law—can be effected, let us be especially careful that we throw no other impediments in the way of justice than those which are interposed by the want of purity in mankind. Let us never regard a system of administering justice as fixed so that its maxima shall not be altered whenever an increase of purity dictates that an alteration may be made. All the existing national systems of administering justice are imperfect and alloyed; a mixture of evil and good. It were sorrowful indeed to assume that they cannot be, or to provide that they shall not be, amended.

  The system in this country, like most systems which are the gradual accretion of the lapse of ages, is incongruous in its different pans. In the decisions that are founded upon legal technicalities, the method of applying absolute uniform law is adopted. In the assessment of damages there is exercised very great discretionary power. In pronouncing verdicts upon prisoners, juries are scarcely allowed any discretion at all. They say absolutely either not guilty or guilty.—Then again, discretion is intrusted to the judge, and he may pronounce sentences of imprisonment or of transportation, varying according to his judgment in their duration or circumstances. The reader should well observe this admission of discretionary power to the judicial court, because it is a practical acknowledgment that considerations of equity are indispensable to the administration of justice, whatever may be the multiplicity or precision of the laws. Our judges are intrusted, on the circuits, with the discretionary power of commuting capital punishments or leaving the offender for execution. This is equivalent to an acknowledgment, that even the most tremendous sanctions of the state are more safely applied upon principles of equity than upon principles of law. Let the reader bear this in his mind.

  Of the general tendency and attendant evils of uniform law, some illustrations have been offered in the preceding essay, and some observations have been offered in the chapter on Arbitration, on the advantages of administering justice upon principles of equity, that is, by a large discretionary power. Now it will be our business to inquire into some of the reasonings by which the application of uniform law is recommended, to illustrate yet further the moral claims of courts of equity, and to show if we can that some greater approximation to the adoption of these courts is practicable even in the present condition of mankind.

  The administration of justice according to a previously made role labours under this fundamental objection,—that it assumes a knowledge in the maker of the rule which he does not possess. It assumes that he can tell beforehand, not only what is a good decision in a certain class of questions, but what is the best. And the objection appears so much the more palpable, because it assumes that a party who judges a case before it exists can better tell what is justly due to an offended or an offending person than those who hear all the particulars of the individual case. This objection, which it is evident can never be got over, is practically felt and acknowledged. Every relaxation of a strict adherence to the law, every concession of discretionary power to juries or to courts, is an acknowledgment of the inherent inadequacy and impropriety of fixed rules. You perceive that no fixed rules can define and discriminate justly for specific cases. Multiply them as you may, the gradations in the demands for equitable decision will multiply yet faster; so that you are forced at last to concede something to equity, though perhaps there baa not hitherto been conceded enough. Our court of Chancery was originally, and still is, called a court of equity,—the erection of which court is paying a sort of tacit homage to equity as superior to law, and making a sort of tacit acknowledgment how imperfect and inefficient the fundamental principles of fixed law are. It is perhaps a subject of regret that this court is now a court of equity rather in name than in fact. It proceeds in a great degree according to the rule of precedent,—one of the principal differences between its practical character and that of legal courts being, that in one a jury decides questions, and in the other a judge.

  And, after all, the fixedness of the law is much less in practice than in theory. We all know how various and contradictory are the “opinions” of legal men; so that a person may present his “case” to three or four able lawyers in succession, and receive from each a different answer. Nay, if several should agree when they are applied to as judges in the case, it is found, when a person comes into court, that counsel can find legal arguments, and unanswerable arguments too, on both sides of the question,—till at last the question is decided, not by a fixed law, but by a preponderance of weight of conflicting precedents. Indeed the unfixedness of the law is practically so great that common fame has made it a proverb.

  Another inconvenience which is inseparable from the use of fixed rules is, that they almost preclude a court from attending sufficiently to one very important point in the administration of justice, the intention of offending parties. Law says, if a man steals another person’s watch, under such and such circumstances, he shall receive such and such a punishment. Yet the guilt of two men who steal watches under the same visible circumstance, is often totally disproportionate; and this disproportion indicates the propriety of corresponding gradations of penalty. Yet fixed law awards the same penalty to both. If it is said that a court may take intention and motives into the account in its sentence;—so it may; but in whatever degree it does this, in the same degree it acknowledges the incompetency and inaptitude of fixed laws.

  “The motives and intentions of the parties.” When we consider that the personal guilt of a man depends more upon these than upon his simple acts, and consequently that these rather than his acts indicate his deserts, it appears desirable that human tribunals should measure their punishments as much by a reference to actual deserts as is consistent with the public good. I would not undertake to affirm that the guilt of the offender is, to us, the ultimate standard, of just punishment, because it may be necessary to the prevention of crimes, that of two offences equal in guilt, one should be punished more severely than another, on account of the greater facilities for its commission,—that is, on account of the greater impracticability of guarding against the offence, or of detecting the offender after it is committed. But, in speaking of the propriety of adverting to intention, this is not the point in view. I speak not of the difference between two classes of crimes, but of the actual motives, inducements, and temptations of the individual offender. Stealing five pounds’ worth of property in sheep, although it may be no more vicious, as an act, than stealing a five-pound note from the person, may perhaps be rightly visited with a severer punishment. This is one thing. But two men may each steal a sheep with very different degrees of personal guilt. This is another. And this is the point of which we speak. A man who is able to maintain himself in respectability, but will not apply himself to an honest occupation; who lives by artifices, or frauds, or thefts, or gambling, or contracting debts, watches night after night an opportunity to carry off sheep from an enclosure. He succeeds, and spends the value in drunkenness or at a bagnio. A man of decent character who, in a period of distress, endeavours in vain to procure employment or bread; who pawns day after day his furniture, his clothing, his bed, to obtain food for his children and his wife; who finds, at, that all is gone, and that hunger continues its demands,—passes a sheep-field. The thought of robbing starts suddenly before him, and he as suddenly executes it. He carries home the meat, and is found by the police hastily cutting slices for his voracious family. Ought these two men to receive the same punishment? It is impossible. Justice, common sense, Christianity, forbid it. We cannot urge, in such cases, that human tribunals, being unable to penetrate the secret motives of action, must leave it to the Supreme Being to apportion punishment, strictly, to guilt. We can discover, though not the exact amount of guilt, a great deal of difference between its degrees. We do actually know, that of two persons who commit the same crime, one is often much more criminal than another. And were it not that our jurisprudence habituates us so much to refer simply to acts we might know much more than we do. We are often ignorant of motive only because we do not inquire for them. A law says, “If any person shall enter a field and steal a sheep or horse, he shall suffer death;” and so, when a court comes to try a man charged with the act, they perhaps scarcely think of any other consideration than whether he stole the animal or not. Of ten who do thus steal, no two probably deserve exactly the same punishment; and some, undoubtedly, deserve much less than others.

  Discrimination then is necessary to the demands alike of humanity, and reason, and religion. But how shall sufficient discrimination be exercised under a system of fixed laws? If the decisions of courts must be regulated by the acts of the offender, how shall they take into account those endless gradations of personal desert, to refer to which is a sine qua non of the administration of justice. Now, in order to satisfy these demands, courts must by some means be intrusted with a greater discretionary power; or, which is the same thing, decisions upon maxims of equity must in a greater degree take the place of decisions regulated by law.

  The next great objection is, that to place, for example, men’s property at the discretion of a court of equity that was not bound down by fixed rules, would make the possession of every man’s property uncertain. Nobody would know whether the estate which he and his fathers enjoyed might not to-morrow, by the decision of some court of equity, be taken away. But this supposes that the decisions of these courts would be arbitrary and capricious; whereas the supposition upon which we set out,—the supposition upon which alone we reason,—is, that means can be devised by which their decisions shall be, generally at least, accordant with rectitude. They must deviate very widely from rectitude if they took away a man’s estate without some reason which appeared to them to be good; and it could hardly appear to be good, on a full hearing of the case, unless the merits of that case were very questionable:—but in proportion to that questionableness would be the smallness of the grievance if the estate were taken away. Let any man suppose a case for himself:—he possesses a house to which no one ever disputed his title, till some person chooses to bring his title before a court of equity,—of the members of which court the possessor nominates one-half: does any man in his senses suppose that the property would be endangered? or rather, does any man suppose that a person would be foolish enough to call the title in question?—But we must repeat the other alternative. If a person holds an estate by a decision of law which he would not have held by a decision of rectitude, we do not listen to his complaints though it be taken away. It is just what we desire.

  It has been contended, that to depart further from the system of deciding by law would tend to the increase of litigation; that nothing prevents litigation so much as previous certainty of the rule of decision; and that if, instead of this certainty, the decision of a court were left to a species of chance, there would be litigation without end. But in this argument it is not sufficiently considered, that previous certainty of the rule of decision is very imperfectly possessed,—that, as we have just been observing, the law is not fixed; and consequently, that that discouragement of litigation which would arise out of previously known rules very imperfectly operates. Nor, again, is it enough considered, that the decision of a court of equity, if properly constituted, would not be a matter of chance, nor any thing that is like it. Though a legal rule would not bind a court, still it would be bound,—bound by the dictates commonly the very intelligible dictates——of right and wrong. “Reason,” it has been said, “is a thousand times more explicit and intelligible than law;” and if reason were not more intelligible, still the moral judgments in the mind assuredly are.—Again, many causes are now brought into court, not because they are morally good, but legally good. Of this the contending parties are often conscious, and they would therefore be conscious that a court which regulated its decisions by the moral qualities of a case would decide against them. At present, when a man contemplates a lawsuit, he has to judge as well as he can of the probability of success, by inquiring into the rules of law and decisions of former cases. If a court of equity were to be the judge, he would have to appeal to a much nearer and more determinate ground of probability,—to his own consciousness of the justness of his cause. We are therefore to set the discouragement of litigation which arises from this source against that which arises from the supposed fixedness of law; and I am disposed to conclude, that in a well-constituted court this discouragement would be practically the greater. Another point is this: It is unhappily certain, that either the ignorance or the cupidity of some legal men prompts many to engage in lawsuits who have little even of legal reason to hope for success. This cause of litigation equity would do away: a lawyer would not be applied to, for a lawyer would have no better means of foreseeing the probable decision of a court of equity than another man.

  Here, too, it is to be remembered that the great, what if I say the crying evils of the present state of legal practice, result from the employment of fixed laws. It has indeed been acknowledged by an advocate of these laws, that they “erect the practice of the law into a separate profession.”1 Now suppose all the evils, all the expenses, all the disposition to litigation and dispute, all the practical injustice, which results from this profession were done away,—would not the benefit be very great? Would it not be a great advantage to the quiet, and the pockets, and the virtue of the nation? I regard this one circumstance as forming a recommendation of equity so powerful, that serious counterbalancing evils must be urged to overcome its weight. Even to the political economist the dissolution or great diminution of the profession is of some importance. I am no proficient in his science; but it requires little proficiency to discover, that the existence of a large number of persons who not only contribute little to the national prosperity, but often deduct from it, is no trifling evil in a state. But it is not simply as it respects the profession that fixed laws are thus injurious. They are the great ultimate occasion of those obstacles to the attainment of justice which are felt to be a grievance in almost all civilized nations. The delays, and the expenses, and the undefined annoyances of vexation and disappointment, deter many from seeking their just rights. Delays are occasioned in a great degree by forms; and forms are a part of the system of fixed laws:—expenses are entailed by the necessity of complying with these forms, and of employing those persons whose knowledge is requisite to tell us what those forms are; and the acquisition of this knowledge requires so much time and care, that he who imparts it must be well paid. As to indeterminate vexations and disappointments, they too result principally from the fixedness of rules. A man with a cause of unquestioned rectitude is too often denied justice on account of the intervention of some absolute rule—that has little or no relevance to the question of rectitude. Persons fearing these various evils decline to endeavour the attainment of their just rights,—rights which, if equity were in a greater degree substituted for law, would be of comparatively easy attainment.

  The reader can hardly too vigorously impress upon his mind the consideration, that the various sacrifices of rectitude which are made under colour of the legality of people’s claims, result from the system of fixed laws. If to avail one’s self of an informality in a will to defraud the claims of justice be wrong,—the evil and the temptation is to be laid a& the door of fixed law. If an undoubted criminal escapes justice merely because he cannot legally be convicted, the evil—which is serious—is to be laid at the door of fixed law. And so of a hundred other cases, cases of which the aggregate ill consequence is so great as to form a weighty objection to whatever system may occasion them.

  I make little distinction between deciding by fixed law and by precedents, because the principles of both are the same, and both, it is probable, will stand or fall together. Precedents are laws—but of somewhat leas absolute authority: which indeed they ought to be, since they are made by courts of justice, and not by the legislature. They are a sort of supplemental statutes, which attempt to supply (what however can never be supplied) the deficiencies of fixed laws. A statute is a general rule; a precedent prescribes a case in which that rule shall be observed; but a thousand cases still arise which neither statute nor precedent can reach.

  So habitual is become our practice of judging questions rather by a previously made rule than by their proper merits, that even the House of Lords, which is the highest court of equity in the state, searches out, when a question is brought before it, its precedents! Long debates ensue upon the parallelism of decisions a century or two ago; when, if the merits of the case only were regarded, perhaps not an hour would be spent in the decision. Then the House is cramped, and made jealous lest its present vote should be a precedent for another decision fifty years to come. New debates are started as to the bearing of the precedent upon some imagined question in after times; and at last the decision is regulated perhaps as much by fears of distant consequences as by a regard to present rectitude. Do away precedents, and the House might pursue, unshackled, the dictate of virtue. And, after all, when precedents are sought and found, the House usually acts upon the opinion of its legal members,—thus subverting the very nature of a court of equity. It would seem the rational and consistent course, that in the House of Lords, when it constitutes such a court, the law lords should be almost the last to give a sentiment; for if it be to be decided by lawyers, to what purpose is it brought to the House of Peers?

  And another inconvenience of fixed law—or at any rate of fixed laws such as ours are—is, that in cases of criminal trials the jury are bound down, as we have before noticed, to an absolute verdict either to acquit the prisoner of all crime, and exempt him from all punishment, or to declare that he is guilty, and leave him to the sentence of the court. Now, since many verdicts are founded upon a balance of probabilities,—probabilities which leave the juror’s mind uncertain of the prisoner’s guilt, it would seem the dictate of reason that corresponding verdicts should be given. If it is quite certain that a man has stolen a watch, it seems reasonable that he should receive a greater punishment than he of whom it is only highly probable that he has stolen it. But the verdict in each case is the same,—till, as the probability diminishes, the minds of the jury at last preponderate on the other side, and they pronounce an absolute verdict of acquittal. From this state of things it happens that some are punished more severely than the amount of probability warrants, and that many are not punished at all, because there is no alternative to the jury between absolute acquittal and absolute conviction. Now, the imperfection of human judgment, the impossibility of penetrating always into the real facts and motives of men, indicates that some penalties may justly be awarded even though a court entertains doubts of a prisoner’s guilt. Man must doubt because he cannot know. We may rightly therefore proceed upon probabilities, and punish upon probabilities; so that we should not wholly exempt a man from punishment because we are not sure that he is guilty, nor inflict a certain stipulated amount of it because we are only strongly persuaded that he is. Punishment may rightly then be regulated by probabilities: but how shall this be done without a large discretionary power in those who judge? And how shall such discretionary power be exercised while we act upon the maxims of bed law?

  The requisition of what is called legal proof is one result of fixed law that is attended with much evil. It not unfrequently happens that a man who claims a right adduces such evidence of its validity that the court—that every man—is convinced he ought to possess it: but there is some deficiency in that precise kind of proof which the law prescribes; and so, in deference to law, justice is turned away. It is the same with crimes. Crimes are sometimes proved to the satisfaction of every one who bears the evidence; but because there is some want of strict legal proof, the criminal is again turned loose upon society. Such things decisions founded upon equity would do away. All that the court would require would be a satisfactory conviction of the prisoner’s guilt, or of the claimant’s rights; and having obtained that satisfaction, it would decide accordingly.

  Here, too, a consideration is suggested respecting the prerogative which is vested in the crown of pardoning offenders. The crown, if any, is doubtless the right repository of this prerogative; but it is not obvious, upon principles of equity, that any repository is right. If an offender deserves punishment, he ought to receive it,—and if he does not deserve it, no sentence ought to be passed upon him. This, of which the truth is very obvious, simply considered, is only untrue when you introduce fixed laws. These fixed laws require you to deliver a verdict, and when it is delivered, to pass a sentence; and then, finding your sentence is improper or unjust, you are obliged to go to a court of equity to remedy the evil. Why should we pass a sentence if it is not deserved? Why is a sentence the indispensable consequence of a verdict? Why rather is a formal verdict pronounced at all? There appears in the view of equity no need for all these forms. What we want is to assign to an offender his due punishment; and when no other is assigned, there is no need for prerogatives of pardon.

  Proceeding then upon the conviction that law as distinguished from justice is attended with many evils, let us inquire whether the obstacles to decisions by considerations of justice are insuperable. Now I do believe that many of the objections which suggest themselves to an inquirer’s mind are really adventitious,—that the administration of simple justice may be detached from many of those inconveniences which attach no doubt to ill-constituted discretionary courts.—So confident has been the objection to decisions upon rules of equity, that Dr. Paley, in the eighth chapter of the political division of his Philosophy, has these words: “The first maxim of a free state is, that the laws be made by one set of men, and administered by another.—When these offices are united in the same person or assembly, particular laws are made for particular cases, springing oftentimes from partial motives, and directed to private ends.” But if these partial motives and private ends can be wholly or in a great degree excluded, the objection which is founded upon them is in a great degree or wholly at an end. If these offices are united in any person or assembly, appointed or constituted as the administerers of justice now are, I doubt not that partial motives and private ends would prevail. But the necessity for this is merely assumed; and upon this assumption Paley proceeds: “Let it be supposed that the courts of Westminster Hall made their own laws, or that the two houses of parliament with the king at their head, tried and decided causes at their bar “then, he says, the inclinations of the judges would inevitably attach on one side or the other, and would interfere with the integrity of justice. No doubt this would happen; but because this would happen to the courts of Westminster Hall or to the legislative assemblies, it does not follow that it would happen to all arbitrators however appointed.—Thus it is that the mind, habitually associating ideas which may reasonably be separated, founds its conclusions, not upon the proper and essential merits of the question, but upon the question as it is accidentally brought before it. The proper ground on which to seek objections to decision on rules of equity is, not in the want of adaptation of present judicial institutions, but on the impracticability of framing institutions in which these rules might safely prevail; and this impracticability has never, so far as the writer knows, been shown.

  Now, without assigning the extent to which arbitration may eventually take place of law, or the degree in which it may be adopted in the present state of any country, it may be asked,——since a large number of disagreements are actually settled by arbitration, that is by rules of equity, why may not that number be greatly increased? It is common in cases of partnership, and other agreements between several parties, to stipulate that if a difference arises it shall be settled by arbitrators. It must be presumed that this mode of settling is regarded as the best, else why formally stipulate for it? The superiority too must be discovered by experience. It is then in fact found that a great number of questions of property and other concerns are settled more cheaply and more satisfactorily by equity than by law. Why then, we repeat, may not that number be indefinitely increased, or who will assign a limit to its increase? Now the constitution of these efficient courts of equity is not permanent. They are not composed of judges previously appointed to decide all disputes. They are not composed, as the courts of Westminster Hall are, or as the houses of parliament are, or as benches of magistrates are. If they were, they would be open to the undue influence and private purposes of those who composed them. But the members of these courts are appointed by the disputants themselves, or by some party to whom they mutually agree to commit the appointment. Supposing then the worst, that the disputing parties appoint men who are interested in their favours; still the balance is equal:—both may do the same. The court is not influenced by undue motives, though its members are: and if in consequence of such motives or of any other cause the court cannot agree upon a verdict, what do they do? They appoint an umpire, or, which is the same thing, the disputants appoint one. This umpire must be presumed to be impartial; for otherwise the disputants would not both have assented to his appointment. At the worst, then, an impartial decision may be confidently hoped; and what may not be hoped under better circumstances? It is, I believe, common for disagreeing parties to nominate, at once, disinterested and upright men; and if they do this, and take care too that they shall be intelligent men, almost every thing is done which is in the power of man to secure a just decision between them.

  Disinterestedness,—uprightness,—intelligence:—these are the qualities which are needed in an arbitrator. That he should be disinterested that is, that he should possess no motive to prefer the interests of either party,—is obviously indispensable. But this is not enough. Other motives than interest operate upon men; and there is no sufficient security for the integrity of a decision, but in that habi1ual uprightness in the arbitrator by which the sanctions of morality are exercised and made influential. The requisiteness of intelligence, both as it implies competent talent and competent knowledge, is too manifest for remark.

  Now one of the great objections which are made to a judicature appointed for the decision of one dispute, and that one only, is “the want of legal science,”—“the ignorance of those who are to decide upon our rights.”2 This objection applies in great force to ordinary juries, but it scarcely applies at all to intelligent arbitrators properly selected,—and not applying, we are at liberty to claim in favour of arbitration without abatement, that “indifferency,” that” integrity,” that “disinterestedness,” which it is allowed that a casual judicature possesses.

  Men become skilful by habit and experience. The man who is now selected for the first time in his life to exercise the office of an arbitrator feels perhaps some difficulties. He is introduced into a new situation in society; and, like other novices, it is not unlikely that he will be under difficulties respecting his decision. But if the system of arbitration should become as common as lawsuits arc now, men would soon learn expertness in the duties of arbitrators. If in a moderate town there were twelve or twenty men, whose characters and knowledge recommended them generally and especially to the confidence of their neighbours,—these are the men who would be selected to adjust their disputes. And even if the same individuals were not often employed, the habit of judging, a familiarity with such matters, becomes diffused, just as every other species of knowledge becomes diffused upon subjects that are common in the world.

  Another ground of difficulty to an arbitrator in the present state of things is the habit which is so general in the community, of referring for justice to rules of law. A man, when he enters an arbitration—room, is continually referring in his mind to law books and precedents. This is likely to confuse his principles of decision, to intermix foreign things with one another, and to produce sometimes perhaps a decision founded half upon law and half upon justice. This may indeed occasionally be in some sort imposed upon him,—at least he would feel a. hesitation, a sort of repugnance to deliver a ‘decision which was absolutely contrary to the rule of law. But this inconvenience is in a great degree accidental and factitious. As the principles of equity assumed their proper dominance in the adjustment of disputes, fixed laws would proportionably decline in influence and in their practical hold upon the minds of men. Their judgments would gradually become emancipated from this species of shackle;—they would rise disencumbered of arbitrary maxims, and decide according to those maxims of moral equity for the dictates of which no man has far to seek. The whole system tends to the invigoration and elevation of the mind. A man who is conscious of an absolute authority to decide,—of an uncontrolled discretionary power, in a question perhaps of important interests, is animated by the moral eminence of his station to exert a vigorous and honourable endeavour to award sound justice. You are not to expect in such a man, what we find in arbitrary judges, that his very absoluteness will make him capricious and tyrannical; for the moment he has pronounced his decision, a calamity, if that decision have been unjust, awaits him;—the reprobation of his neighbours, of his friends, and of the public. The exercise of his discretion is bound to the side of uprightness, though not by ordinary pains and penalties, yet by virtual pains and penalties, which to such men as are chosen for arbitrators are among the most powerful that can be applied.

  One thing is indispensable to an extended system of arbitration, that the civil magistrate should sanction its decisions by a willing enforcement of the verdict. It is usual for disputants who refer to arbitration to sign an agreement to abide their decision; and this agreement may by some simple process of law be enforced. The law does indeed now sanction arbitrations; but then it is in a formal and expensive way. A deed is drawn up, and a stamp must be affixed, and a solicitor must be employed;—so that at last the disagreeing parties do but partly reap the benefits of arbitration. This should be remedied. The reader will observe that I say law is wanted to enforce the decisions of equity. No doubt it is. It is wanted for the same reason as government is wanted, to exert power, which power, it is evident, must be exercised by the government. But if any critic should say that this acknowledges the insufficiency of equity, I answer, that we are speaking of unconnected things. The business of equity is to decide between right and wrong, and to say what is right,—with which the infliction of penalties or the enforcement of decisions has no concern. A court and jury say that a man shall be sent for six months to a prison, but it forms no part of their business to execute the sentence.

  With respect to the applicability of courts of equity to criminal trials, I see nothing that necessarily prevents it. Men who can judge respecting matters of property and personal rights, can judge respecting questions of innocence and guilt. In one view, indeed, they can judge more easily; because moral desert is determinable upon more simple and obvious principles than claims of property. Many who would feel much difficulty in deciding involved disputes about money or land, would feel none in determining, with sufficient accuracy, the degree of an offender’s guilt.

  It being manifest then that offences against the peace of society may be u properly referred to courts of equity as questions of right,—what should be the constitution of such a court? But here the reader is to remember, that the objection .is not merely or principally to the constitution of present courts, but to the principles of fixed law upon which justice is administered. So that, if principles of equity were substituted, the con1titution of the court would become a secondary concern; and courts consisting of a jury and a judge might not be bad, though they were not the best. If half a dozen intelligent and upright men could be appointed to examine the truth of charges against a prisoner, and if they were allowed to award a just punishment, I should have little fear, after making allowances for the frailties of humanity, that their penalties would generally be just;—at any rate, that they would be more accordant with justice than penalties which are regulated by fixed law. The difficulty is in procuring the arbitrators, a difficulty greater than that which obtains in cases of private right. For in the first place, offenders against the peace of society generally excite the feelings of the public, and especially of the neighbourhood, against them. Men too often prejudge cases, and the prisoner is frequently condemned in the public mind before any evidence has been brought before a jury. This indicates a difficulty in selecting impartial men. And then in the case of arbitrations, each party chooses one or more of the judges. Shall the same privilege be allowed to persona charged with crime? If it were, would they not select persona who would frustrate all the endeavours to administer justice? Besides, where is the conflicting party who shall be equally interested in appointing arbitrators of opposite dispositions? And if both did appoint such, what is the hope of a temperate and rational decision t Again, there are offences which are regarded with peculiar severity by particular classes of men. A court composed of country gentlemen would hardly award a fair verdict against a poacher.

  These considerations and others indicate difficulty; and perhaps the difficulty cannot better be avoided than by a court selected by chance. In the selection of juries there have recently been introduced improvements. Still, if equity rather than law is to be regarded, something more is needed. Now, though a jury be ignorant, the judge is learned: and a learned judge is indispensable where law is to be applied. But if simple justice be the object, such a judge becomes comparatively little requisite:—yet, when we have dispensed with the intelligence of the judge, we must provide for greater intelligence in the jury. A jury from the lower classes of the community may serve with tolerable sufficiency the purposes of justice in the present system; but if they were converted from jurymen into arbitrators, much more of intelligence, and we may add, much more of elevation of character, is required. To endeavor to obtain this intelligence and uprightness by a mode of chance selection must always be very uncertain of success. If those who were eligible for this species of jury were obliged to possess a certain qualification in point of property; if, of those who were thus eligible, a competent number were selected by ballot; and if the prisoner and the prosecutor were allowed a large right of challenge, perhaps every thing would be done which is in the power of man.

  The number of arbitrators who form a court of equity should always be small. Large numbers effect less good by accumulating wisdom, than harm by putting off patient investigation to one another, and by “dividing the shame” of a partial decision.

  The members of such courts, though capable of deciding with competent propriety on questions of right and wrong when facts are laid before them, may be incapable, from want of habit, of eliciting those facts from reluctant or partial witnesses. Now I perceive no reason why, both in criminal and civil courts, a person could not be employed, whose profession it was to elicit the truth. Is he to be a pleader or an advocate? No. The very name is sufficient to discredit the office in the view of pure morality. One professional man only should be employed. That one should be employed by neither party separately, but by both, or by the state. It should be his simple and sole business to elicit the truth, and to elicit it from the witnesses of both sides. Securities against corruption in this man are obviously as easy as in arbitrators themselves. The judges of England evince, in general an admirable example of impartiality; and as to corruptness it is almost unknown. What reason is there for questioning that officers such as we speak of may not be incorrupt and impartial too? If handsome remuneration be necessary to secure them from undue influence, and to maintain the dignity of their office, let them by all means have it. Even in a present court of law or justice,—suppose the examination of witnesses was taken from barristers and conducted by the judge, does not every man perceive that the truth might be elicited by one interrogator of the witnesses of both parties? And does not every one perceive that such an interrogator would elicit it in a far more upright and manly way than is now the case? Pleading is a thing which, in the administration of justice, ought not to be so much as named.

  Bearing along in our minds then the inconveniences and the evils of fixed laws,—let us suppose that a circuit was taken, and that courts were held from which the application of fixed law was, so far as is practicable, excluded. Suppose these courts to consist of three, or he, or seven men, selected according to the utmost skill of precautionary measures, for their intelligence and uprightness, and of one publicly authorized and dignified person, whose office it should be to assist the court in the discovery of the truth. Suppose that, when the facts of the case, and as far as possible the motives and intentions of the parties, were laid open, these three or five, or seven men, pronounced a decision as accordant as they could do with the immutable principles of right and wrong, and excluding almost all reference to fixed laws, and precedents, and technicalities;—is it not probable, is it not reasonable, to expect that the purposes of justice would be more effectually answered than they are at present? And even if justice was not better administered, would not such a system exclude various existing evils connected with legal institutions, evils so great as to be real calamities to the state?

  Perhaps it is needless to remark, that all courts of equity which are recognised by the state should be public. Individuals who refer their disputes to private arbitrators may have them privately adjusted if they please. But publicity is a powerful means of securing that impartiality which it is the first object in the administration of justice to secure.

  There is one advantage, collateral indeed to the administration of equity, but not therefore the less considerable, that it would have a strong tendency to diffuse sound ideas of Justice in the public mind. As it is, it may unhappily be affirmed that courts of judicature spread an habitual confusion of ideas upon the subject; and, what is worse, very frequently inculcate that as just which is really the contrary. Our notions of a court of judicature are, or they ought to be, that it is a place sacred to justice. But when, superinduced upon this notion, it is the fact, that by very many of its decisions justice is put into the background; that law is elevated into supremacy; that the technicalities of forms and the finesse of pleaders triumph over the decisions of rectitude in the mind,—the effect cannot be otherwise than bad. It cannot do otherwise than confound, in the public mind, notions of good and evil, and teach them to think that every thing is virtuous which courts of justice sanction.—If, instead of this, the public were habituated to a constant appeal to equity, and to a constant conformity to its dictates, the effect would be opposite, and therefore good. Justice would stand prominently forward to the public view as the object of reverence and regard. The distinctions between equity and injustice would become, by habit, broad and defined. Instead of confounding the public ideas of morality, a court of judicature would teach, very powerfully teach, discrimination. A court, seriously endeavouring to discover the decision of justice, and uprightly awarding it between man and man, would be a spectacle of which the moral influence could not be lost upon the people.


  In thus recommending the application of pure moral principles in the administration of justice, the writer does not presume to define how far the present condition of human virtue may capacitate a legislature to exchange fixed rules of decision for the impartial judgments of upright men. That it may be done to a much greater extent than it is now done he entertains no doubt. A legislature might perhaps begin with that pernicious species of arbitrary rules which consists of technicalities and forms. To deny justice to a man because he has not claimed it in a specific form of words, or because some legal inaccuracy has been committed in the proceedings, must always disapprove itself to the plain judgments of mankind. Begin then with the most palpable and useless rules. Whatever can be dispensed with, it is a sacred duty to abolish, and every act of judicious abolition will facilitate the abolition of others:—it will prepare the public mind for the contemplation of purer institutions, and gradually enable it to adopt those institutions in the national practice.

  As to the particular modes of securing the administration of simple justice, the writer would say, that those which he has suggested he has suggested with deference. His business is rather with the principles of sound political institutions than with the form and mode of applying them to practice. Other and better means than he has suggested are probably to be found. The candid reader will acknowledge, that in advocating institutions so different from those which actually obtain, the political moralist is under peculiar difficulties and disadvantages. The best machinery of social institutions is discovered rather from experience than from reasoning; and upon this machinery, in the present instance, experience has thrown little light.


  Here, as in some other parts of this work, the reader will observe that alterations are proposed and improvements suggested which have been actually adopted since these Essays were written. Our courts, and also the legislature, have lately paid some attention to the modes in which public Justice is administered. As yet, the alterations which have been made are chiefly confined to the criminal laws: but our judges are now beginning to exert the discretionary power which is vested in them, in preventing the course of justice from being, so frequently as it heretofore has been, intercepted by technicalities and verbal inaccuracy. Of this the public had lately an instance in the cause of Gulley, v. the Bishop of Exeter. A parliamentary commission has been appointed and is now sitting, whose object it is to devise improvements in the practice of our courts of judicature.—ED.

1 Paley: Mor, and Pol. Phil. b.6, c.8.
2 Paley; Mor. and Pol. Phil. b.6, c.7.

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