Jurisprudence (Dodo Press) by James Mill

Author:James Mill [Mill, James]
Language: eng
Format: epub
Tags: Philosophy, General, Law
ISBN: 9781409959502
Publisher: Book Depository
Published: 2008-12-31T10:17:10.137000+00:00

VI.

The Code of Procedure.—First stage of the Judicial Business.—Second stage of the Judicial Business.

We have now, therefore, stated, what the limits of this discourse enable us to adduce, on the subject of the main body of the law; the enactments of the legislature with respect to rights, and with respect to those acts by which rights are violated. It remains that we consider that subsidiary branch of law, by which an agency is constituted for the purpose of carrying those enactments into effect. The inquiry here is, 1. what are the operations essential to that agency; 2. by what agents are they most likely to be well performed; and 3. what are the best securities that can be taken for the good conduct of those agents.

It most significantly illustrates the manner in which ignorance gropes its way in the dark, to observe, that the agency, the sole end of which is to carry into execution the civil and penal laws, was created first, and was in operation for ages, before the idea of the other branches of law was even tolerably framed. It is also worthy of remark, that the men, whose wisdom rules our affairs, are in the habit of calling the mode in which ignorance gropes its way in the dark, by the name of experience; the mode of acting upon a plan, and with forethought, by the names of theory and speculation.

There is instruction, in observing the mode, in which this inverted course of law-making was pursued. Men disputed; and their disputes were attended with the most destructive consequences. Originally, the king, at the head of the military force, and his subordinates, each at the head of a section of that force, interfered in those disputes. After a time, the king appointed functionaries, under the name of judges, for that particular service. Those judges decided, without any rule, by their own discretion. The feelings of the community, grounded upon their experience of what tended to good and evil upon the whole, pointed vaguely to certain things as right, to other things as wrong; and to these the judge, as often as he was bona fide, conformed his decision. The mode was similar both in arbitrating, and in punishing.

As punishing, especially in the severer cases, was an act which made a vivid impression upon the mind, the mode in which that act had been performed in previous cases was apt to be remembered: of the several modes, that which was most approved by the public would naturally be followed the most frequently; and at last there would be a species of scandal, if it was unnecessarily departed from. In this way a uniformity, more or less perfect, was established, in punishing the more heinous offences; and in regard to them custom first established what had some small portion of the attributes of a law.

In those cases in which, without a call for punishment, the authoritative termination of a dispute was all that was required, the experience of what

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