Front Page Titles (by Subject) ADDITIONAL NOTES TO BOOKS I. & II. CHIEFLY WITH REFERENCE TO ALTERATIONS MADE IN THE LAW SINCE THE DATE OF THE FIRST EDITION,— viz. 1827. - The Works of Jeremy Bentham, vol. 6
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
ADDITIONAL NOTES TO BOOKS I. & II. CHIEFLY WITH REFERENCE TO ALTERATIONS MADE IN THE LAW SINCE THE DATE OF THE FIRST EDITION,— viz. 1827. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
ADDITIONAL NOTES TO BOOKS I. & II.
P. 244, col. 2, Note *.
The doctrine laid down on this occasion by the judges was, that it was not proper for the counsel for the Crown to press an unwilling witness called by themselves, as such a course would end in destroying the credit of their own witness. In Crossfield’s case, where the same doctrine was laid down by the Lord Chief-Justice Eyre, the witness who was thus protected swore the very reverse of what he had sworn at his prior examination. This doctrine is now in abeyance, and the usual course which is pursued, is to allow the examination in chief in such cases to assume the style of a cross-examination. It seems to have been first allowed at the trial of Codling and others in 1803, for feloniously destroying a brig on the high seas. The mistress of one of the prisoners was called by the counsel for the Crown, and cross-examined by him.
P. 273, col. 2, line 5—“forty shillings.”
The act 7 & 8 Geo. IV. cap. 29, which abolished the distinction between grand and petty larceny, makes the value of the property stolen immaterial in the case of simple larceny: but stealing in a dwelling-house, property to the value of £5 or more, is by the 12th section made punishable with death. The death-punishment has, however, been abolished by 3 & 4 Wil. IV. cap. 44.
P. 286, col. 2, end of 3d paragraph.
The wager of law, one of the instances here alluded to was abolished by the last Law Amendment Act, 3 & 4 Wil. IV. cap. 42, § 13.
P. 292, col. 2 of Note, line 9—“personation.”
To personate another, for the purpose of fraud, is a misdemeanor at common law. 2 East, P. C. cap. 20, § 6, p. 1010. The personation of proprietors of shares in the public funds and stocks, was made a capital offence by various statutes; and lastly, by 11 Geo. IV. and 1 Wil. IV. cap. 66, § 6, in cases where any transfer or receipt of money actually took place. The 2 & 3 Wil. IV. cap. 123, takes away the punishment of death, and substitutes transportation for life. A former act appears to have been overlooked, viz. 2 & 3 Wil. IV. cap. 59, which was passed for the purpose of transferring the management of certain annuities from the Exchequer to the Commissioners of the National Debt. By the 19th section, the personation of any nominee is made a capital felony. The 7 Wil. IV. and 1 Vict. cap. 84, abolishes the punishment of death for this offence, and substitutes transportation, or imprisonment for not less than two years; whereas the 2 & 3 Wil. IV. cap. 123, takes away all discretion from the Court in the numerous cases to which it refers.
P. 294, col. 2, line 22—“perjury.”
By the English law, all judicial mendacity, though upon oath, is not perjury; for a necessary ingredient in the crime of perjury is, that the matter sworn to, shall be material to the issue in question, on each individual occasion, as well as wilfully false. 5 Bac. Abr. Perjury. 1 Hawk. P. C. cap. 69, § 8. Thus it frequently happens, that witnesses wilfully perjure themselves in foro conscientiæ, though not in point of law, because the false testimony may not be material to the issue, upon the record. By the late legislative alterations which substitute declarations for oaths (see some of these noticed above, Vol. V. p. 288,) the punishment of perjury has been awarded against false declaration.
P. 295, col. 1, line 37—“crimes.”
By the 3 & 4 Wil. IV. cap. 49, Quakers and Moravians are allowed to make an affirmation in all cases, criminal as well as civil, in which the law requires an oath: a false affirmation being punishable as for perjury. The same relief is granted to the sect called Separatists, by the 3 & 4 Wil. IV. cap. 82. By 1 & 2 Vict. cap. 77, the same privilege is conceded to those who declare themselves to have been Quakers or Moravians, though they have ceased to belong to either of such denominations of Christians, if they continue to entertain conscientious objections to taking oaths. In the session 1838-9, a bill was brought in to allow all persons professing conscientious objections to oaths, to give evidence on solemn affirmation, under sanction of the pains of perjury in case of falsehood. It was thrown out by the House of Commons, where it was introduced.
P. 301, col. 2, par. 1.
The remarks in the text apply only to the class of barristers, who are exempted from responsibility on the fiction that their employment is merely honorary. For the same alleged reason, physicians are exempted from responsibility. Special pleaders, however, and attorneys, like surgeons, are responsible for the want of care, knowledge, or skill, in the same manner as other mandatories.
P. 304, col. 1, line 22—“means.”
By the ancient common law, this was considered as murder, Mirror, cap. 1, § 9. Bract. lib. 3, cap. 4; 3 Inst. 91. In 1756, three persons were indicted for murder, for having taken away the life of an innocent person, who had been convicted and executed upon their false testimony. The prisoners were convieted; but the judgment was respited, in order that the point of law might be more fully considered upon a motion in arrest of judgment. The point, however, was not argued by the then Attorney-General, from prudential reasons altogether unconnected with the law of the case. There seems to be good ground for believing that the opinions of the judges were in favour of the indictment. Fost. 132, 1 Leach. 44, 4 Black. Com. 196, note (g.) 1 East. P. C. cap. 5, § 94, p. 333, note (a.) 1 Russ. p. 427.
P. 333, col. 2, line 30—“defilement.”
The 9 Geo. IV. cap. 31, declares that the carrying off of any woman (having an interest in any real or personal estate,) with intent to marry or defile her, is felony. If the woman has no property, it would still be an offence at common law; and the offenders may therefore in either case be taken into custody at once. The same observation would of course apply to the third case supposed by the author, if such a case should occur in this country.
P. 338, col. 2, line 14—“intercept them.”
In criminal cases, the counsel for the prisoner may now, by the 3d section of 6 & 7 W. IV. cap. 114, have the depositions which the witnesses may have made before the committing magistrate. The counsel for the prosecution always had access to them.
P. 340, par. 1 of Note *.
The special law here referred to, is the 3d section of the 23 Geo. II. cap. 11, which says, that judges of assize may direct any witness to be prosecuted for perjury at the public expense. It appears doubtful whether any such clause were necessary. The judges are in the daily habit of ordering prosecutions to be instituted against witnesses for other misdemeanors, and also for felonies; in particular, for receiving stolen goods.
P. 345, col. 1, line 54—“rank of felony.”
Although this is the usual and most proper course of proceeding, it is by no means obligatory, as a prosecutor may, and sometimes, but very rarely, does, go before the Grand Jury at once.
P. 351, col. 2, line 27—“English lawyer.”
Happily, since this passage was written, the punishment of death has been abolished to a very considerable extent, and is now limited to the most heinous crimes, and offences accompanied with personal violence. The last statutes on this subject are the 7 Wil. IV. and 1 Vict. cap. 84 to 89 inclusive, and cap. 91.
P. 358, col. 2, end of par. 4—“the only one.”
Under the English law, there is no appeal in criminal cases (properly so called.) For what is called a writ of error, lies only upon some matter of law apparent on the face of the record.
P. 368, col. 1, line 8—“bathing places?”
In Rex v. Crunden, 2 Camph. 89, it was laid down, that if a man undresses himself on the beach, and bathes in the sea, near inhabited houses, from which he might be distinctly seen, he is guilty of a misdemeanor.
P. 372, col. 2, end of par. 2—“their ears.”
The prisoner’s counsel is now allowed to address the jury on the facts of the case, by the 6 & 7 Wil. IV. cap. 114.
P. 377, col. 1, end of par. 2—“or sells it.”
The public are not admitted into the Central Criminal Court, except on the payment of money. No such tax is now imposed in the courts at Guildhal.