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• A View of the Hard-labour Bill; Being an Abstract of a Pamphlet, Intituled, “draught of a Bill, to Punish By Imprisonment and Hard Labour, Certain Offenders; and to Establish Proper Places For Their Reception:” Interspersed With Observations Relative T
• Panopticon; Or, the Inspection-house: Containing the Idea of a New Principle of Construction Applicable to Any Sort of Establishment, In Which Persons of Any Description Are to Be Kept Under Inspection; and In Particular to Penitentiary-houses,
• Preface.
• Letter I.: Idea of the Inspection Principle.
• Letter II.: Plan For a Penitentiary Inspection-house.
• Letter III.: Extent For a Single Building.
• Letter IV.: The Principle Extended to Uncovered Areas.
• Letter V.: Essential Points of the Plan.
• Letter VI.: Advantages of the Plan.
• Letter VII.: Penitentiary-houses—safe Custody.
• Letter VIII.: Uses—penitentiary-houses—reformation.
• Letter IX.: Penitentiary-houses—economy—contract—plan.
• Letter X.: Choice of Trades Should Be Free.
• Letter XI.: Multiplication of Trades Is Not Necessary.
• Letter XII.: Contractor’s Checks.
• Letter XIII.: Means of Extracting Labour.
• Letter XIV.: Provision For Liberated Persons.
• Letter XV.: Prospect of Saving From This Plan.
• Letter XVI.: Houses of Correction.
• Letter XVII.: Prisons For Safe Custody Merely.
• Letter XVIII.: Manufactories.
• Letter XIX.: Mad-houses.
• Letter XX.: Hospitals.
• Letter XXI.: Schools.
• Postscript, Part I. Containing Further Particulars and Alterations Relative to the Plan of Construction Originally Proposed; Principally Adapted to the Purpose of a Panopticon Penitentiary-house. *
• Section I.: Principal Particulars. Principal Particulars Either Settled Or Altered, Since the First Hasty Design, As Described In Letter II. And Imperfectly Represented In Plate I. See Plate II. †
• Section II.: General View of the Whole Edifice. In a General View of the Whole Building, According to Its Present Form, Three Very Different, Though Connected Masses, May Be Distinguished.
• Section III.: Annular Well. Annular Well, Instead of Stories of Intermediate Annular Area.
• Section IV.: Protracted Partitions Omitted. Protracted Partitions Omitted; Or Rather, Taken Into the Cells.
• Section V.: Cells, Double Instead of Single.
• Section VI.: Dead-part.
• Section VII.: Chapel. Chapel Introduced. *
• Section VIII.: Inspection-galleries and Lodge.
• Section IX.: Of the Communications In General.
• Section X.: Communications. Prisoners’ Staircases.
• Section XI.: Communications—inspectors Staircases.
• Section XII.: Staircase For Chapel Visitors, and For the Officers’ Apartments.
• Section XIII.: Cell-galleries.
• Section XIV.: Doors.
• Section XV.: Diametrical Passage.
• Section XVI.: Communications—exit Into the Yards.
• Section XVII.: Exterior Annular Well. ‡
• Section XVIII.: Windows Reaching Low, and Glazed; Instead of High Up, and Open.
• Section XIX.: Materials. Arched Work—much Iron—plaster Floors.
• Section XX.: Outlets, Including Airing-yards.
• Section XXI.: Approach and Fences.
• Section XXII.: Means of Supplying Water.
• Section XXIII.: Of the Mode of Warming the Building.
• Section XXIV.: Of the Economy Observed In the Construction.
• Postscript—part II. Principles and Plan of Management.
• Section I.: Leading Positions.
• Section II.: Management—in What Hands, and On What Terms.
• Section III.: Of Separation As Between the Sexes.
• Section IV.: Of Separation Into Companies and Classes.
• Section V.: Employment.
• Section VI.: Diet.
• Section VII.: Clothing.
• Section VIII.: Bedding.
• Section IX.: Health and Cleanliness.
• Section X.: Of Airing and Exercise.
• Section XI.: Schooling and Sunday Employment.
• Section XII.: Of Ventilation, Shading, and Cooling.
• Section XIII.: Distribution of Time.
• Section XIV.: Of Punishments.
• Section XV.: Mode of Guarding On the Outside.
• Section XVI.: Provision For Liberated Prisoners.
• The Following Note Respecting This Work Was Given By Bentham to Dr. Bowring, 24 Th January 1821.
• Panopticon Versus New South Wales: Or, the Panopticon Penitentiary System, and the Penal Colonization System, Compared.
• A Plea For the Constitution: Shewing the Enormities Committed, to the Oppression of British Subjects, Innocent As Well As Guilty;
• Preface.
• Section I.: Subject Matter—object—plan.
• Section II.: Power of Legislation—its Necessity In New South Wales.
• Section III: Legislation—how Far Lawful In New South Wales.
• Section IV.: American, &c. Legislation No Precedent For New South Wales.
• Section V.: Even In America, the Crown Had No Right to Legislate Without Parliament.
• Section VI.: Nullity of Legislation In New South Wales, For Want of an Assembly to Consent.
• Section VII.: Nullity of Governor’s Ordinances. For Want of a Court to Try Offences Against Them.
• Section VIII.: King’s Law-servants Not Infallible.
• Section IX.: Nullity of New South Wales Legislation, Proved By the Granada Case.
• Section X.: Governor’s Illegal Ordinances Exemplified.
• Section XI.: Governor’s Illegal Ordinances Exemplified.
• Section XII.: Expirees Forcibly Detained.
• Section XIII.: Expirees, During Detention, Kept In a State of Bondage.
• Section XIV.: Statutes Transgressed By the Legislation and Government of New South Wales.
• Draught of a Code For the Organization of the Judicial Establishment In France: With Critical Observations On the Draught Proposed By the National Assembly Committee, In the Form of a Perpetual Commentary.
• Bentham’s Draught For the Organization of Judicial Establishments, Compared With That of the National Assembly, With a Commentary On the Same.
• Emancipate Your Colonies! Addressed to the National Convention of France, Anno 1793.
• Jeremy Bentham to His Fellow-citizens of France, On Houses of Peers and Senates.
• Papers Relative to Codification and Public Instruction: Including Correspondence With the Russian Emperor, and Divers Constituted Authorities In the American United States.
• Part I.—: On Codification.
• No. I.: To the President of the United States of America.
• No. II.: James Madison, Then President of the Congress of the American United States, to Jeremy Bentham, London.
• No. III.: Albert Gallatin, Minister Plenipotentiary From the American United States to the Court of London, to Simon Snyder, Governor of Pennsylvania, Introducing a Letter From Jeremy Bentham to the Said Governor.
• No. IV.: Jeremy Bentham, London, to Simon Snyder, Governor of Pennsylvania.
• No. V.: Simon Snyder, Governor of Pennsylvania, to David Meade Randolph, Esq. Williamsburgh, Virginia, On the Subject of the Above Letter of Jeremy Bentham.
• No. VI.: Extract From a Printed Paper, Signed Simon Snyder, Dated Harrisburg, December 5 Th 1816, James Peacock, Printer, Intituled “ Governor’s Message to the Senate and House of Representatives of the Commonwealth of Pennsylvania, ” Containing Seve
• No. VII.: Circular. — to the Governor of the State of
• No. VIII.: Jeremy Bentham, an Englishman, to the Citizens of the Several American United States.
• No. IX.: Jeremy Bentham to James Madison, Late President of the American United States.
• No. X.: Jeremy Bentham to the Emperor of All the Russias.
• No. XI.: Alexander I. Emperor of All the Russias, to Jeremy Bentham, London—written With His Imperial Majesty’s Own Hand, In Answer to the Above, [no. X.]
• No. XII.: Jeremy Bentham to the Emperor of All the Russias.
• No. XIII.: Prince Adam Czartoriski, of Poland, to Jeremy Bentham, London. *
• No. XIV.: Jeremy Bentham, London, to Prince Adam Czartoriski of Poland.
• Part II.: Public Instruction.
• No. I.: ( Circular. )— Letter From His Excellency Wilson Cary Nicholas, Governor of Virginia, On the Subject of Public Instruction.—addressed (the Copy of Which This Is a Transcript) to His Excellency John Quincy Adams, Minister Plenipotentiary From the U
• No. II.: ( Circular. )— to the Governor of the State of
• No. III.
• No. IV. Notice Concerning Chrestomathia, By the Paris Lancasterian Instruction Society. Report of the British and Foreign School Society to the General Meeting, Dec. 12, 1816.—EXTRACT.
• Codification Proposal, Addressed By Jeremy Bentham to All Nations Professing Liberal Opinions; Or Idea of a Proposed All-comprehensive Body of Law, With an Accompaniment of Reasons, Applying All Along to the Several Proposed Arrangements:
• Advertisement.
• Part I.—ARGUMENTS.: Positions, With Reasons For Proofs.
• Section 1.: In Every Political State, the Greatest Happiness of the Greatest Number Requires, That It Be Provided With an All-comprehensive Body of Law. All-comprehensiveness, Practicable, and Indispensable.
• Section 2.: The Greatest Happiness of the Greatest Number Requires, That Such Body of Law Be Throughout Accompanied By Its Rationale: an Indication of the Reasons On Which the Several Arrangements Contained In It Are Grounded. Rationale, Though Unex
• Section 3.: The Greatest Happiness of the Greatest Number Requires, That Those Reasons Be Such, Throughout, As Shall Show the Conduciveness of the Several Arrangements to the All-comprehensive and Only Defensible End Thus Expressed. Rationale, Indicat
• Section 4.: The Greatest Happiness of the Greatest Number Requires, That, of This Rationale, the Several Parts Be Placed In the Most Immediate Contact With the Several Arrangements to Which They Respectively Apply. Rationale, Interwoven, Not Detached.
• Section 5.: The Greatest Happiness of the Greatest Number Requires, That For the Function Exercised By the Drawing of the Original Draught of Such a Code, the Competitors He As Many As, Without Reward At the Public Expense, Can Be Obtained: and So, For T
• Section 6.: The Greatest Happiness of the Greatest Number Requires—that, For the Drawing of Any Such Draught, No Reward At the Public Expense Be Given. At Additional Expense, Reward None.
• Section 7.: The Greatest Happiness of the Greatest Number Requires—that Every Draught, So Given In, Be, From Beginning to End, If Possible, the Work of a Single Hand. Hands Not More Than One.
• Section 8.: The Greatest Happiness of the Greatest Number Requires—that Such Original Draught, Being the Work of a Single Hand, Be Known to Be So. Hand, Known to Be But One.
• Section 9.: The Greatest Happiness of the Greatest Number Requires, That the Work, Being the Work of a Single Hand, and Known to Be So, It Be Known Whose the Hand Is. Hand, Known Whose It Is.
• Section 10.: The Greatest Happiness of the Greatest Number Requires, That, For the Drawing of the Original Draught, All Foreigners Be Admitted Into the Competition: and That, In So Far As Applicable, Unless It Be In All Particulars Taken Together Decid
• Section 11.: On the Part of an Individual, Proposing Himself As Draughtsman For the Original Draught of a Code of Laws, Willingness Or Unwillingness to Interweave In His Draught a Rationale As Above, Is the Most Conclusive Preliminary Test, and That
• Section 12.: On the Part of a Ruler, Willingness Or Unwillingness to See Established an All-comprehensive Code, With Its Rationale As Above, and to Receive Original Draughts From All Hands, Are Among the Most Conclusive Tests of Appropriate Aptitude,
• Part II.—TESTIMONIALS.
• I. England
• II. Geneva
• III.: Spain.
• IV.: Portugal.
• V.: Italy.
• VI.: France.
• VII.: Anglo-american United States.
• VIII.: Greece.
• IX.: South America.

SECTION XIV.

STATUTES TRANSGRESSED BY THE LEGISLATION AND GOVERNMENT OF NEW SOUTH WALES.

The acts of legislation, and other acts of government, that have been exercised in New South Wales, have thus been stated, in a general point of view, as being contrary to law. It remains to confront the several heads of transgression that have thus been manifested, with the several constitutional laws and principles of law, which in those several points have been transgressed and violated.

I.

Transgressions in breach of the Habeas Corpus Act—Penalties thereby incurred under the said Act.

“And for preventing illegal imprisonment,” says the act,* “in prisons beyond the seas; Be it further enacted . . . that no subject of this realm, that now is, or hereafter shall be, an inhabitant or resident of this kingdom of England . . . shall or may be sent prisoner . . . into ports, garrisons, islands, or places beyond the seas, which are, or at anytime hereafter shall be, within or without the dominions of his Majesty, his heirs and successors; and that every such imprisonment is hereby enacted and adjudged to be illegal; and that if any of the said subjects . . . hereafter, shall be so imprisoned, every such person . . . so imprisoned . . . may for every such imprisonment maintain, by virtue of this act, an action or actions of false imprisonment, in any of his Majesty’s courts of record, against the person or persons by whom he or she shall be so committed, detained, imprisoned, sent prisoner, or transported, contrary to the true meaning of this act, and against all or any person or persons that shall frame, contrive, write, seal, or countersign any warrant or writing for such commitment, detainer, imprisonment, or transportation, or shall be advising, aiding, or assisting in the same, or any of them;† and the plaintiff in every such action shall have judgment to recover his treble costs besides damages, which damages so to be given shall not be less than five hundred pounds, . . . and the person or persons who shall knowingly frame, contrive, write, seal, or countersign any warrant for such commitment, detainer, or transportation, or shall so commit, detain, imprison, or transport any person or persons contrary to this act, or be anyways advising, aiding, or assisting therein, being lawfully convicted thereof, shall be disabled from thenceforth to bear any office of trust or profit within the said realm of England: and shall incur and sustain the pains, penalties, and forfeitures . . . provided . . . by the statute of provision and præmunire, . . . and shall be incapable of any pardon from the king.”

To the provisions in this clause there are two exceptions, annexed by so many immediately succeeding clauses:—one, in respect of persons, by their own agreement in writing, contracting to be transported;‡ the other, in respect of persons praying to be transported;∥ as it seems they were allowed to do in some cases, as still in Scotland, to save themselves from severer punishment.

There are also at present as many exceptions as there are posterior statutes authorising transportation, these exceptions having for their extent that of the authority given in each case by each respective statute: but, forasmuch as by a statute authorising the crown to transport offenders for a term therein limited, no authority, either express or implied, is given to “detain” any such offender, in any case, a moment beyond such limited time, the provisions in the Habeas Corpus act remain, in the instance of every convict so detained in New South Wales, in full force and virtue.

The several acts and modes of participation, by and in which a man may be a partaker in the crime of unlawful imprisonment, are here carefully enumerated and distinguished. As to acts, commitment is one; detainer is another. In the instance of the convicts, the commitment has not been unlawful: the detainer, after the expiration of their respective terms, has been, and still is. As to modes of participation, the description given of them will, I believe, be found sufficiently comprehensive. To appropriate them to this or that great person, in or out of office, would at present be an useless labour. The act has done its part: the books of the council board and the treasury—not forgetting the office of the secretary of state for the home department—these, with or without certain documents from the colony, and a little explanatory oral evidence, which need not be wanting, would do the rest.

It is almost superfluous to observe, that in intendment of law, every place, circumscribed or not by walls—every place in which, without sufficient warrant, a man is kept against his will—is, to this purpose—as for all purposes of justice it is most necessary that it should be—a prison.* If an island larger than all Europe were not to this purpose a prison, one of the two equally declared objects of the law would be defeated, and the whole text of it turned into a dead letter.

II.

Repugnancy of such Transgressions to Magna Charta, according to Coke and Comyns.

Thus saith common sense: and—what, fortunately for the present purpose, is much more indisputable and decisive—thus saith Lord Coke; whose comment, though the parliamentary text of it be of so much earlier date, is not here inapposite: since the Habeas Corpus act—an act having Magna Charta for its ground-work, has for its object no other than the affording an additional protection to this part of the rights which, by that sacred trumpet of the constitution, had already been proclaimed. Step by step, the oracles of the legal sage will be found advancing to the point, and at length coming fully home to it.

1. “No man,” says he, “shall be exiled, or banished out of his country; that is, Nemo perdet patriam, no man shall lose his country, unless he be exiled according to the law of the land.†

2. “No man shall be outlawed, made an exlex, put out of the law; that is, deprived of the benefit of the law, unless he be outlawed according to the law of the land.”‡ Their time of lawful punishment being expired, the quondam convict inhabitants of New South Wales, by being kept here against their wills, are they not made “to lose their country?” and, by being thus de facto removed out of the reach of the remedial arm of justice, are they not “put out of the law,” as effectually as if, after a wrongful judgment of outlawry pronounced against them, they had thus been deprived of the benefit of it ipso jure, i. e. falso jure?

3. “By this law of the land, no man can be exiled, or banished out of his native country, but either by authority of parliament, or, in case of abjuration for felony, by the common law.”∥ In the instance of each of these convicts, there is a time for and during which he has been “exiled by authority of parliament,” and so far as it is only for and during this time that he is kept in New South Wales, so far there is no injury. But, after the expiration of this time, all the rest of the time during which he is kept there, he is kept “in exile and in imprisonment, without authority of parliament.” He would be kept in exile, if, with the exception of this his native country, he had the choice of the whole world. But, besides being kept in exile, he is kept even, in most instances, in imprisonment, confined as he is to the insulated, however extended, region of New South Wales.

4. “This” [Magna Charta] “is a beneficial law, and is construed benignly: and therefore the king cannot send any subject of England, against his will, to serve him out of this realm; for, that would be an exile, and he should perdere patriam: no, he cannot be sent against his will into Ireland, to serve the king as his deputy there, because it is out of the realm of England: for, if the king might send him out of this realm to any place, then, under pretence of service, as ambassador, or the like, he might send him into the furthest part of the world, which, being an exile, is prohibited by this act.”§ To send the meanest of these convicts to this “furthest part of the world,” against his will, though it were to be governor there, would thus be an offence: an offence, in the first place, against Magna Charta; in the next place, against the Habeas Corpus act. These men, not one of whom Majesty itself could order to continue there, were it even to be governor there, against his will, these are the men whom, by thousands, his Majesty’s ministers are keeping there still in bondage.

5. If “a felon . . . is under custody of the king’s officer [it] is an imprisonment in law.”§ He that is under lawful arrest is said to be in prison, although it be not intra parietes carceris.¶

6. “Imprisonment doth not only extend to false imprisonment, and unjust, but for detaining of the prisoner longer than he ought where he was at first lawfully imprisoned.”*

7. “If any man, by colour of any authority, where he hath not any in that particular case, arrest or imprison any man, or cause him to be arrested or imprisoned, this is against the act; and it is most hateful, when it is done by countenance of justice.”

Had Lord Coke been a prophet as well as a lawyer, he could not have pointed more surely to the present case.†

III.

Transgressions in Breach of the Petition of Right, 3 C. I. c. 1.

In this statute, among the petitions contained in § 10, after the recital that “commissions” had then of late been “issued forth” “for proceeding by martial law,” is this—“That hereafter no commissions of like nature may issue forth to any person or persons whatsoever, to be executed as aforesaid, lest by colour of them any of your Majesty’s subjects be destroyed, or put to death, contrary to the laws and franchise of the land.”

After this comes the concluding section (§ 11,) which is in these words:—

“All which they most humbly pray of your most excellent Majesty, as their rights and liberties, according to the laws and statutes of this realm; and that your Majesty would also vouchsafe to declare, that the awards, doings, and proceedings, to the prejudice of your people, in any of the premisses, shall not be drawn hereafter into consequence or example; and that your Majesty would be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, that in the things aforesaid, all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honour of your Majesty, and the prosperity of this kingdom. Quâ quidem petitione lectâ, et plenius intellectâ, per dictum Dominum Regem taliter est responsum in pleno Parliamento, viz. Soit droit fait come est desire.”

In full contradiction to this statute, it appears from the journal of the Judge-Advocate, that, in April 1790, in New South Wales, by the governor of New South Wales, martial law was actually proclaimed.‡ In the petition of right, the territory on which the commissions thus branded with illegality had been executed, stands described by words of no greater amplitude, indeed, than the words “this realm.” Of colonies no mention is there made:—good reason why, no such dependencies being at that time in existence.∥ But, if the principles already laid down in this behalf are just, no just reason could be built on this ground, for regarding the petition of right as being in this point of view inapplicable to New South Wales. In the first place, what should hinder that settlement, though at the distance of the antipodes, from being considered as parcel of “this realm?” Not local distance: for this, as we have seen already, did not hinder the whole of the intended plantations in America from being parcel of the manor of East Greenwich. In the next place, among the petitions contained in the concluding section above quoted, is this—“That your Majesty will also vouch-safe to declare that the . . . proceedings to the prejudice of your people in any of the premisses shall not be drawn hereafter into consequence or example;” and moreover. “that in the things aforesaid, all your officers and ministers shall serve you according to the laws and statutes of this realm.”

On this, as on all other occasions of necessity, real or apparent, I impute not any moral blame to the governor: moral blame might, for aught I know, have been imputable to him, had he acted otherwise.§Elsewhere, however—I mean to his Majesty’s “officers and ministers” here at home—I see not how it can be that moral blame should not be imputable: I mean, if, under constitutional blame, moral be included—if a regard for the constitution of their country—for the “laws and statutes according to which” they are thus pledged “to serve” their royal master—have any sort of place among the articles of their moral code. Amongst the documents which composed the legal armature of the governor, was any such power as that of declaring martial law, in that nursery of despotism, included? If so, then has there been, in that behalf, on their part, an open and point-blank breach made in this constitutional and hard-earned bulwark of the constitution. Again, be this as it may, when with or without precedent authority, from these his Majesty’s “officers and ministers,” martial law had actually been proclaimed, was information of such proceeding officially transmitted to them in consequence? That, in one way or other, at one time or other, information of this fact has come to their cognizance, is beyond dispute: if not by the next conveyance, and in the way of official correspondence (an omission not naturally to be presumed,) at any rate it was received by them in 1798, through the medium of the press. It is therefore at any rate with their knowledge that the petition of right has thus been violated. On the occasion of this, any more than of so many other exercises of unconstitutional powers, have they ever condescended to apply to parliament—I do not say for precedent authority—but so much as for an ex post facto indemnity? Not they indeed: no, not in any one of the multitude of instances that have called for indemnity at least, if not for punishment.

IV.

Transgressions in Breach of the Declaration of Rights.*

This statute, so familiar to English ears, and once at least so dear to English hearts, under the name of the Bill of Rights, opens with the recital of twelve heads of transgression, “whereby the late King James the Second, by the assistance of divers evil counsellors, judges, and ministers employed by him, did endeavour to subvert . . . the laws and liberties of this kingdom.”

Of those twelve heads of royal transgression, of which in those days England had been the scene, seven at least present themselves, as having had their counterparts in New South Wales: with this difference, that, in the most material instances, the transgressions that at that time gave birth to the Revolution in this our island were but peccadillos in comparison of the enormities acted on that distant theatre. In England, the subversion was but attempted: at the antipodes it has been completed—complete in design, from the first moment—completed in the execution, so soon as occasion called for it: the subversion of English liberties having been the very object and final cause of the foundation of this English colony. The words of the clause, which it became necessary to copy, present another difference, but happily too striking a one to every loyal eye to require any further mention of it.

No. 1. Transgression the 1st in England.—“By assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of parliament.”

Analogous Transgression in New South Wales.—Exercising legislative power by the hand of the governor there, without authority from parliament, in an habitual train of enumerated instances, to the number of sixty or seventy, or upwards, as already exemplified in § 10: besides other instances, not as yet specifically ascertainable. The word analogous requires correction. It is evident enough how inconsiderable the transgression is which consists in the mere act of dispensation or suspension, put upon here and there a law already existing, in comparison of an habitual and positive exercise of an illegal power of legislation, in all cases.

No. 2. Transgression 2d in England.—“Committing and prosecuting divers worthy prelates, for humbly petitioning to be excused from concurring to the said assumed power of suspending and dispensing with laws.”

Analogous Transgression in New South Wales.—Confining within this land of illegal bondage, and even without “prosecution,” punishing by arbitrary power, viz. with whipping—divers persons formerly guilty, but who had been restored, in point of law, to the condition of innocent persons, by the expiration of their terms of legal punishment.†

No. 3. Transgression 3d in England.—“Issuing and causing to be executed, a commission under the Great Seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes.”

Analogous Transgressions in New South Wales.—1. Instituting a court called a civil court, without authority from parliament.‡

2. Punishing divers persons, on divers occasions, in divers manners, by the single authority of the governor, for pretended offences created by so many acts of legislative authority exercised by the governor: for example, in some instances, by destroying stills,* pulling down houses,† destroying oars. These, though on the mention of them presenting the appearance rather of “outrages” committed by individuals, were among the acts done by the governor in the exercise of these illegal powers.

No. 4. Transgression the 4th in England.—“Levying money to and for the use of the crown, by pretence of prerogative, for other time, and in other manner, than the same was granted in parliament.”

Analogous Transgression in New South Wales.—Levying for the use of the crown a tax of 6d. per bushel on corn, and other taxes, applied towards the expense of building a jail at Sydney.‡

No. 5. Transgression the 7th in England.—“Violating the freedom of election of members to serve in Parliament.”

Analogous Transgression in New South Wales.—Legislation, exercised by the governor alone, without authority from parliament at home, or the concurrence of any assembly, standing in the place of parliament, in New South Wales.

No. 6. Transgression the 10th in England.—“Excessive bail . . . required . . . to elude the benefit of the laws made for the liberty of the subject.”

Analogous Transgression in New South Wales.—Married men, whose terms were expired, not suffered to quit the colony, without finding security for the maintenance of their wives and children, if left behind.∥

No. 7. Transgression the 11th in England.—“Illegal and cruel punishments inflicted.”

Analogous Transgression in New South Wales.—Perpetual exile, accompamed with perpetual confinement and perpetual slavery, inflicted on his Majesty’s subjects, altogether without cause; whatever offences they had been convicted of, having been previously expiated by appropriate lots of punishment, marked out by law. Of the mere endeavour to escape from this combination of illegal and cruel punishments—the humble and peaceable endeavour without anything like force—an additional lot of illegal punishment, illegal whipping, was the appointed consequence.

Under this head, the enormities imputed to James the Second were mere peccadillos, in comparison of the more palpably “illegal,” more “cruel,” and above all prodigiously more numerous enormities of the like complexion, committed under—My pen refuses to complete the sentence.§

After the statement of the several heads of transgression by which the rights in question had been violated, the act proceeds to declare the rights themselves in certain articles, the first of which is in these words: “The pretended power of suspending laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.”—But, if simple suspension or dispensation—(i. e. abrogation for a time in individual instances) be thus illegal, how much more flagrant must be the illegality of positive enactment, and that without any limitation as to the nature of the case?

In § 64, after declaring the rights and liberties in question to be “the true ancient and indubitable rights of the people of this kingdom,” the act concludes with “declaring and enacting,” that “all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all times to come.”

The wretches in question, whatever may have been their crimes, were they not—are they not still, and as truly as the very best of their betters, so many individuals of “the people of this kingdom?” And thus it is, then, that his present Majesty, the venerable and beloved successor of the royal founders of these rights and liberties, has been “served” by “the officers and ministers of his time:” thus it is, that the “ancient and indubitable rights” of this helpless and defenceless portion of his people, have been respected and protected by these his “officers and ministers.”

IV.

Transgressions in breach of the several Transportation Acts, by which that Punishment has been appointed for limited lengths of time.

It would be a double charge of the same article, to state these as so many acts of delinquency, distinct from, and over and above those already referred to, in their character of transgressions against the Habeas Corpus act. It is by these several statutes, that the limits of legal punishment are marked out, in the several respective instances; it is in the transgression of those limits in each instance that consists the violation offered to that sacred law.

It would, moreover, be a waste of paper to give, by a string of references, a specific list of the several particular laws thus transgressed: it would be making so many useless transcripts, from the already existing indexes and abridgments.

In this complicated body of enormity, perspicuity requires that the distinction between the two main branches be kept in view. The one consists in the system of groundless, as well as illegal punishment; the other in the system of illegal legislation and government:—the former, in the oppression exercised upon individuals; the latter, in the usurpation exercised by the servants of the crown over the authority of parliament:—the former, in the wound given to the penal branch, and through that alone to the constitutional branch of the law; the other in a system of delinquency, striking more directly against the constitutional branch. The relation of the latter system of transgression to the former, is that of a means to an end: it was for the purpose of the oppression exercised upon individual subjects, that the authority of his Majesty in parliament was thus usurped by his “officers and ministers.”

One thing, in regard to the question of law, requires particularly to be observed: which is, that though the right of the crown to legislate in this new-founded colony, without the concurrence, either of the two other estates of the supreme legislature in the mother country, or of a subordinate assembly of states in the colony, were as clear as, I flatter myself, the contrary has been made out to be, the stain of illegality would not even thus be cleared away: for, admitting, on the part of the King’s governor of New South Wales, the right of legislating to every other effect imaginable, even then no such supposition could be entertained, consistently with any sort or degree of supremacy on the part of parliament, as that of a right of making ordinances in New South Wales, in direct repugnancy to the several acts of parliament, by which express limitations stand annexed to the several lots of punishment respectively appointed by those acts. And as to the Habeas Corpus act, should even the letter of that sacred charter be (as I can scarce conceive it to be) deemed not to have been violated, the violation of the spirit of it would still remain as plain and palpable, as it could have been in any of the cases, the experience of which may be supposed to have given occasion to the law.

As to everything that concerns motives and extenuations—motives by which any of the transgressors may be supposed to have been led into transgression—extenuations that may be supposed capable of being grounded on those motives—discussions on any such topics as these, might in the present state of the business be regarded as premature. The essential subject of solicitude is the Constitution: the essential operation is the healing the wound that has thus been given to it: that object being accomplished by the requisite votes and laws, everything else may in comparison be deemed of light importance; and may without much danger be left to float upon the tide of popular and party favour. The object on no account to be lost sight of is futurity: that being provided for at any rate, it is a matter of little comparative moment what degree of indulgence may accompany the retrospect, which cannot altogether be omitted to be taken of the past. The fact of transgression, declared, then would come the consideration of the censure, if any, and the deductions or set-offs to be made, on the score of motives, intentions, or past services, real or supposed, in other lines. All would be lost—the constitution would be betrayed and sacrificed—if, dazzled by the lustre that circles the head of this or that arch-delinquent, the eye of parliament were to show itself insensible to the distinction between right and wrong, and the quality of the criminal were to be accepted as a warrant for the crime. It was not in the case of James the Second—it was not in the case of that misguided, yet most religious, though so unhappily religious king: it saved him not from forfeiture, much less from verbal censure. It remains to be seen, whether the constitution, which, in the seventeenth century, even a king was punished and expelled for violating, is to be complimented away, and made a sacrifice of, to the pride of this or that domineering subject, in the nineteenth century—in this maturer age, in this supposed period of constitutional improvement, and more firmly established rights.

Compare the case of this immense, yet too real, because uninspectable Bastile, with that of the scene of kindred abuse in miniature,—the home-jail thus hyperbolized and stigmatized—in Coldbath Fields. See what was the conduct of parliament in the one case, and from thence say what it ought to be—what, if consistency be the rule, it cannot but be in the other. Information to parliament of mismanagement in a prison—a lawful prison—employed as such under the law for the suspension of the Habeas Corpus act. No principle of the constitution violated—no authority setting itself up to make ordinances repugnant to the laws, and subversive of the authority of Parliament. The alleged cause of the abuse, malpractices on the part of a single jailor, negligence or connivance on the part of certain magistrates, his official superiors. On this ground—on this single ground—an address is presented to his Majesty by the House of Commons, for an inquiry into the management of this jail; an address presented with the express concurrence of the chancellor of the exchequer; and a commission of inquiry is issued accordingly—issued by the crown,* and executed.†

On the present occasion, his Majesty’s subjects kept by hundreds, ere now, perhaps, by thousands, in a state of exile and bondage, without end and without cause: the four grand bulwarks of the constitution all broken through, for the very purpose of this causeless and endless punishment; the authority of parliament treated by the servants of the crown with a contempt already become habitual and rooted:—is the supposition so much as an endurable one, that after information thus exhibited, though it be by so obscure a hand, parliament should sit still and silent, exactly as if nothing amiss had ever happened?

When on that occasion the motion was made for the address, the delicacy of the chancellor of the exchequer of that day would not suffer him to refuse his declared concurrence with it.‡ Would the supposition be so much as a decent one, that the Chancellor of the Exchequer of the present day would show so little respect to the precedent thus set by his predecessor, as to refuse to the very vitals of the constitution that attention which it was then not thought decent to refuse to the police of one of the prisons.∥

DRAUGHT OF A CODE FOR THE ORGANIZATION OF THE JUDICIAL ESTABLISHMENT

IN FRANCE: WITH CRITICAL OBSERVATIONS ON THE DRAUGHT PROPOSED BY THE NATIONAL ASSEMBLY COMMITTEE, IN THE FORM OF A PERPETUAL COMMENTARY.

BY JEREMY BENTHAM, of lincoln’s inn, esq.

MARCH 1790.

TITLE I.

OF COURTS OF JUSTICE IN GENERAL.*

Art. I.—The fountain of justice is the nation, through the channel of the legislature. Justice shall not be administered in the name of the king, or any other single person.

Art. II.—The judges shall in general be elected by the persons subject to their jurisdiction; and that in manner hereinafter specified.

Art. III.—No office conferring judicial power, or the exclusive privilege of ministering by particular services to the exercise of such power, shall be created by the sole authority of the king for any purpose, much less in order to be sold.

Art. IV.—Justice shall be administered gratis. Provision shall be made for the ministers of justice by salaries. All exaction, or acceptance of fees, by persons any way concerned in the administration of justice, is hereby declared illegal.

Art. V.—All stamp-duties or other duties upon law proceedings are hereby abolished: and all laws made to ensure the collection of such duties, are so far forth repealed.

Art. VI.—The judges have no share in legislative power. Appointed for the express purpose of enforcing obedience to the laws, their duty is to be foremost in obedience. Any attempt on the part of a judge to frustrate or unnecessarily to retard the efficacy of what he understands to have been the decided meaning of the legislature, shall be punished with forfeiture of his office.

Art. VII.—But rules of law derivable from decrees of judges and customs of courts in times past, shall still be in force, so long as they remain unsuperseded by acts of the legislature.

Art. VIII.—No judge has any power to make general regulations; not even relative to the mode of procedure in his own court.

Art. IX.—But should any case arise before a judge, in respect of which it appears to him that the legislature, had the same been in their contemplation, would have made a provision different from that which the letter of the law imports, he is hereby authorised, and even required, so to deal therein as it appears to him that the legislature would have willed him to do, had such case been in their contemplation: taking such measures withal, whether by exacting security, or sequestration of goods or persons, or otherwise, as shall be necessary to prevent the happening of any irremediable mischief in either event, whether the legislature abide by the law, or alter it.

Art. X.—The suspensive power hereby given extends even to such laws and other acts of authority as shall have issued from the National Assembly, or from any subordinate authority, at any period posterior to that of the convocation of the present National Assembly: and it may be exercised with still less reserve with regard to such former laws and rules of law as, though not expressly abolished, may appear unconformable to the principles manifested by the National Assembly, and especially to those contained in the declaration of rights.

Art. XI.—Provided always that the judge, as soon as possible after the case calling for the exercise of such suspensive power has presented itself to his notice, shall make report thereof to the National Assembly.

Art. XII.—Copies of such report shall also be sent to the several courts of justice to which his court is subordinate: so that the dispatching of the original report be not delayedon account of the dispatching of such copies.

Art. XIII.—In such report shall be contained—

1. A statement of the matter of fact which has happened to call for the execution of the law.

2. A quotation, with proper references, of the passage of law in question.

3. A statement of the mischief which in his conception would ensue, were the letter of the law to be observed.

4. A statement of the course provisionally taken by him for avoidance of such mischief, in pursuance of the power given him by Art. IX.

5. To such report he is at liberty, and is hereby invited, to subjoin a note of such alteration in the text of the law, as appears to him most proper for guarding against the mischief in question for the future; whether such alteration consist in defalcation, addition, or substitution; pointing out the very words in which the passage in question, after the alteration suggested, ought to stand.

Art. XIV.—The true and only proper object of inquiry in the exercise of this suspensive power, as far as it regards laws posterior to the convocation of the present National Assembly, is, not what ought to have been the intention of the legislature in the case in question, but only what would have been so, had the same been present to their view.

Art. XV.—All judges and other ministers of justice are also hereby invited to make report, at any time, of any inconvenience which appears to them likely to ensue from the literal execution of any article of law, even although no case calling for such execution shall have yet arisen: as also to propose questions relative to the import of any passage in the law, which may have appeared to them ambiguous or obscure.

Art. XVI.—The subordinate representative assemblies, in the exercise of the powers of administration, and subordinate legislation, lodged in their hands by the supreme legislature, are [not?] accountable to the judicial power. The members of them cannot therefore be punished, or cited to appear before it, for any act done by them in their quality of members. Obedience to an act of any such assembly, acting within the sphere of the authority committed to it by the sovereign legislature, is to be enforced by the courts of justice in like manner as to an act of the National Assembly itself. But for that purpose, it is necessary that the courts of justice should take cognizance, upon every occasion, of the question, whether in such instance the subordinate assembly has or has not confined itself within its proper sphere, and to decide accordingly upon the validity of their act.

Art. XVII.—The judges, elected as in manner hereafter ordained, shall enjoy their offices for life, unless divested thereof in manner hereinafter specified.

Art. XVIII.—Judicial proceedings, from the first step to the last inclusive, shall, in all cases but the secret ones hereinafter specified, be carried on with the utmost degree of publicity possible.

Art. XIX.—Every subject has a right to plead his own cause, in every stage, and before every court, as well by word of mouth as in writing; and as well by himself as by the mouth or hand of any person of his choice, not being specially debarred by law.

Art. XX.—All monopoly of the right of selling advice or service in matters of law (saving provisionally the profession of a notary) is abolished. Any advocate may practise in the capacity of an attorney; any attorney, in the capacity of an advocate; and any man, not specially debarred, in the capacity of either.

Art. XXI.—In every suit, civil as well as penal, both parties shall attend in person at the commencement of the cause, in presence of each other and of the judge (unless in as far as they may stand excused by special reasons, in manner hereinafter specified); and so from time to time during the continuance of the cause; there to depose, and to be interrogated, at any time, they or their representatives, each on the part of the other, in the same manner as witnesses.

Art. XXII.—All privilege in matters of jurisdiction stands abolished. All subjects stand henceforward upon an equal footing, in respect, as well of the manner of pleading, and the order in which their causes are to be heard and decided, as of the choice of the courts before which they are to plead.

Art. XXIII.—The constitutional order of jurisdiction shall not be disturbed, nor the subject drawn out of his natural court by royal commissions, or attributions of causes, or arbitrary evocations.

Art. XXIV.—Resolved, That this Assembly will, with all convenient speed, proceed to the enactment of a law to determine in what cases, and how, the power of evocation may be lawfully exercised.

Art. XXV.—Resolved, That this Assembly will proceed with all possible expedition to frame a new code of Procedure, of which the object shall be to render the administration of justice as simple, as expeditious, and as little expensive as possible.

Art. XXVI.—Resolved, That this Assembly will proceed with all possible expedition to frame a new code of Penal Law, of which the object shall be to render the punishments in every case as proportionate, as mild, and as apposite, as possible; never losing sight of the maxim, that every lot or degree of punishment which is not necessary, is a violation of the rights of man, and an offence committed by the legislator against society.

TITLE II.

DISTRIBUTION AND GRADATION OF THE COURTS OF JUSTICE.

Art. I.—In every parish [or canton] there shall be a court of justice of immediate jurisdiction, under the name of the Parish Court,*composed of a single judge; saving such consolidations or divisions of parishes, as may be made for this purpose, in virtue of the powers hereinafter given.

Art. II.—In each district there shall be a court of justice of immediate jurisdiction, under the name of the immediateDistrict Court,composed in like manner of a single judge.

Art. III.—In each district there shall also be a Court of Appeal, under the name of the District Court of Appeal, composed in like manner of a single judge.

Art. IV.—[In each department there shall be a Courtof Appeal, under the name of the Department Court,composed in like manner of a single judge.] [Quære, the necessity of this court?]

Art. V.—At Paris there shall be a Court of Appeal, in the last resort, under the name of the Metropolitan, or SupremeCourt, composed in like manner of a single judge.

Art. VI.—The decrees of the Metropolitan Court of Justice shall be final, except such on account of which censure shall have been past on the judge by a decree of the National Assembly, in manner hereinafter specified.

Art. VII.—To each of the several classes of courts above mentioned is given authority over all sorts of persons, and in every sort of cause, throughout the kingdom; saving only, the difference between jurisdiction immediate and appellate, and the authority of certain tribunals of exception, in as far as the same is hereby acknowledged, and provisionally confirmed.

Art. VIII.—These are, 1. Courts-Martial in the land service; in as far as the powers of such courts are confined to the maintenance of discipline among military men.

Art. IX.—2. Naval Courts-Martial; in as far as their powers are confined to the maintenance of discipline among men engaged in the naval department of the public service.

Art. X.—3. Causes relative to matters happening at sea, on board private vessels, belong to the jurisdiction of the courts of any territory where the vessel is in harbour; viz. to the immediate courts, if no regular judgment has been passed in virtue of any lawful authority on board the vessel; or, if there has, then to the courts of appeal.

Art. XI.—4. Courts Ecclesiastical; in as far as the powers of such courts are confined to the maintenance of ecclesiastical discipline among ecclesiastical men.

Art. XII. 5.—All representative assemblies; for the purpose of putting a stop to, and punishing offences committed by members or others, in face of the assembly.

Art. XIII.—All courts, other than the tribunals of exception, as above specified, shall be comprised under the common appellation of Ordinary Courts.

Art. XIV.—In every ordinary court [but the parish court, and in every parish court where there is a judge specially appointed, as in Tit. V.] there shall be a Pursuer-general and a Defender-general.

Art. XV.—Attached to the authority of the judge, as well as to that of the pursuer-general and defender-general of every ordinary court, shall be the power of appointing substitutes, or deputies, viz. one permanent and occasional ones as occasion may require.

Art. XVI.—The name of Advocate-General, or Public-Advocate, shall be common to pursuers and defenders general; and the name of Magistrate to judges, advocate-generals, and the permanent deputy of each.

TITLE III.

OF JUDGES OF THE ORDINARY COURTS.

§ 1.

Appointment—Continuance in Office—Power and Rank.

Art. I.—A [Judgea ] (principal) shall be elected by the electors chosen by the active citizens of the territory over which he is to be [judge,a ] in the same manner as a member of the administrative body of that territory; parochial [judgesb ] excepted, of whom in Tit. V., and metropolitan [judges.b ]

*Art. II.—On the first election, to be eligible to this office, a man must be seven and twenty years of age, and must have exercised the functions of a man of law, for three years in a superior court, or for five years before an inferior tribunal.c

Under the denomination of Men of Law, are comprised, for this purpose, 1. Judges of every description; 2. King’s advocates and attornies, and their substitutes; 3. Advocates; 4. Attornies; [5. Secretaries of courts? Greffiers?] [6. Notaries?]

Art. III.—No vacancy in any [judicial officed ] but the lowest shall be filled, but out of the same rank of [judges,b ] or that next below: but [judgesb ] in those ranks all over the kingdom are alike eligible.

Art. IV.—No vacancy in the lowest rank of [judges]b principal shall be filled but by some one who has served in the station of [judge]a depute permanent, and that for at least [three] years, on elections posterior to the year [1793.]

Art. V. The [judgea ] principal of every court, (except the parish [or canton] court, and the metropolitan) shall hold his office for life, unless divested of it in one or other of the following ways:—

1. Resignation.

2. Forfeiture, judicially pronounced.

3. Amotion, pronounced by the suffrages of a majority of the whole number of the electors entitled to vote at the last preceding election, general or particular, holden for the choice of a magistrate, or of a member of the administrative body of his territory.

4. Amotion, pronounced by a majority of the whole number of members of the administrative body next in rank above that of the territory of which he is [judge.a ]

Art. VI.—By amotion, without forfeiture, a [judgea ] loses his rank as such, but not his salary, nor the capacity of being rechosen, even immediately.

Art. VII.—e Every judge, for the enforcement of his decrees judicially given, has, in case of necessity, the command over all persons, without distinction, within the bounds of his territory, the king only, and judges of equal or superior rank, excepted.

Art. VIII.—When a [judge,a ] in the exercise of his function, goes out of his own proper territory into another, he takes his [rank and powerf ] with him, subject only to the [rank and powerf ] of the co-ordinate and superior [judgesb ] of that territory.

Art. IX.—A judge principale shall have precedency of all persons over whom he has power, as according to Art. XI.; a judge of appeal taking place of a judge of immediate jurisdiction for the same territory, and judges of the same court according to the priority of their appointment.

Art. X.—Judicial dutygought not to be neglected for any other. Acceptance of a judicial office vacates every other, judicial or not judicial: and acceptance of an office not judicial, vacates every judicial one. Much less shall a Judge exercise any other profession, such as that of notary, advocate, or attorney. This extends to Judges-Deputes permanent, but not to judges natural, of whom in Tit. V.

Art. XI.—[A judge ought to stand clear of offence, and of suspicion of partiality.h ] No [judgea ] shall give his vote at any election; nor use any means, direct or indirect, to influence the votes of others.

§ 2.

Pay.

Art. I.—The expense of the salary of an [instituted judgea ] of the parish court shall be defrayed by the parish:

[Of a canton court, by the district:]

Of a district court, by the district:

[Of a department court, by the department:]

Of the metropolitan court, by the nation.

Art. II.—On the [ day] preceding the day of election, an auction shall be held before the directory of the administrative body of the territory charged with the expense of the salary, under the name of the Patriotic Auction: at which the candidates shall be at liberty to attend, in person or by proxy, in order to declare, each of them, what he is willing to give, if anything, to the common fund of the territory, in the event of his being elected to the office. And thereupon the office shall be put up by the president, each bidder being at liberty to advance as often as he thinks proper, in the manner of a common auction.

Art. III.—As soon as it appears that no candidate will make any farther advance, each shall give in an undertaking in writing, in which shall be specified what he binds himself to give, in the event of his being elected.

Art. IV.—At the same time each candidate shall give in an inventory of his estate, as well in possession as in expectancy, together with all charges thereupon, with an estimate of the clear value thereof in ready money; the whole being signed by the candidate himself, and verified by his oath.

Art. V.—At the same time each candidate shall give in a paper stating his pretensions, of what nature soever, on which he grounds his hopes of being chosen; such as his age, the time during which he has acted in the capacity of a man of law, in what branch of the profession, before what courts, and the like: and such paper shall also be signed by the candidate himself, and verified by his oath.

Art. VI.—The above inventory may either be open or sealed: if sealed, the declaration of its verity, concluding with the signature, shall be on the outside: and it shall be reserved unopened till the event of the election is declared; at which period, if he whose act it is should prove the successful candidate, it shall thereupon be broken open; if not, it shall be returned to him unopened.

Art. VII.—The above-mentioned undertakings and declarations shall forthwith be printed together on the same paper, and a copy given to every elector [NA] days before the election.

Art. VIII.—If, the election having fallen upon one of the bidders, he should fail in complying in any particular with the terms of his engagement, his right to the office shall thereupon cease; and upon a vacancy declared by the competent court, at the instance of the procurator syndic of the administrative body, a new election shall be decreed: but time may be allowed him for performing his engagement, or an equivalent accepted by the court on his application, the procurator syndic being heard on the other side.

Art. IX.—The penalty, in case of falsehood in a declaration given in as above, shall be, if the falsehood were wilful, forfeiture of the office, together with the purchase-money, if any were paid: if the falsehood happened through inadvertence coupled with temerity or negligence, a discretionary fine.

Art. X.—From the salary of every [judgea ] shall be deducted [25] per cent. upon the interest of the capital representing his private fortune; yet so as that the remainder shall not be less than [one fourth] of the whole; unless in as far as any farther deduction may have been comprised in the undertaking he has delivered in.

Art. XI.—In the case where, his salary not having undergone the utmost deduction of which it is thus susceptible, any accession happens to his fortune by succession, donation, or bequest, to the value of [12,000] livres or upwards, he shall, within [half a year] after effects to that amount have been received, give in a supplemental declaration of the particulars of such accession; and, upon an account settled with the officer who stands charged with the payment of his salary, a proportionable deduction shall take place, from the day when such supplemental declaration was given in.

Art. XII.—The contribution offered at the auction, may be either in ready money, or in any other shape; and in particular, it may be in the shape of a release of the whole, or any part of the appointed salary: and in this case, the deduction prescribed by Art. X. shall be understood to be included; but no offer shall be deemed valid, which would reduce the income of the candidate below the amount of the appointed salary.

Art. XIII.—On the day when the successful candidate is sworn in, and previous to his being sworn in, any member of the corporate assembly, before which he is sworn in, shall be at liberty to put to him all such questions as may tend to ascertain the truth and sufficiency of the several declarations he has given in: and whoever exercises the functions of procurator syndic, is specially charged with this duty, and responsible for the neglect of it.

Art. XIV.—That time and opportunity for scrutinizing the accuracy of the inventory above mentioned may not be wanting, the [judge electa ] shall not be sworn in till [NA] days after it has been broken open, nor till [NA] days after it has been published in [the newspaper most current in the place.]

Art. XV.—In case of amotion without forfeiture, the salary paid shall be the appointed salary, without deduction: and any contribution that has been given in consequence of the patriotic auction shall be refunded, but without interest.

Art. XVI.—In case of resignation, the contribution shall in like manner be refunded, but no salary continued.

§ 3.

Attendance.

When Injustice sleeps, Justice may do the same.

Art. I.—The [judgment-seati ] ought never to be empty, during any part of the juridical day, throughout the year: in an immediate court, never: in a court of appeal, never where there is any cause on the paper, ripe for hearing.

Art. II.—The juridical day shall be of [twelve] hours: viz. from [eight] to [eight,] allowing only [one] hour within that time, viz. between [two] and [three] for refreshment. This extends not to the judges termed Natural.

Art. III.—A [judge immediate,k ] when absent from the fixed judgment-seat upon out-duty (as upon a view or the examination of a sick person,) ought to take care that it be filled, if possible, by some [judgea ] depute permanent or occasional, on pain of being responsible for the failure.

Art. IV.—A [judge’sl ] salary shall be reckoned by the day, and paid him every [week] by [the paymaster.] It shall be paid him nowhere but upon the [judgment] seat; or, in case of sickness, in his own apartment: a day’s pay being deducted for every day of absence, otherwise than upon duty; except vacation-days which he is allowed to take, [thirty] in the course of the year, at his choice; provided that the [judgment] seat be not at any time left vacant.

Art. V.—The day’s pay thus to be received shall be a day’s pay of the appointed salary: the difference, if any, between that and the clear salary remaining after the contribution furnished according to § 2, shall be made up by quarterly advances, which the [judgea ] shall make on [the usual quarterdays] to [the paymaster:] nor shall he be reimbursed any deficiencies occasioned by unallowed days of absence.

Art. VI.—Declaration to be taken by every [judgea ] every time he receives his salary:—

I, A. J., solemnly declare, that since the last time of my receiving salary, I have not at any time, during juridical hours, been absent from the duty of my office, except during the following days, viz. [NA], nor absent from the judgment-seat, except the following days, when I was out upon duty, at the places, in the causes, and for the purposes following, viz. [NA].

Art. VII.—A copy of every such declaration, signed by the [judge,a ] shall, on that same day in which it was made, be hung up, in a conspicuous manner, near the judgment-seat, there to remain till the next quarterday.

Art. VIII.—A [judgea ] is to be understood to have been absent from duty on any day, if, in the course of that day, he has not sitten at least [one hour;] and if, during the rest of the day, he has not been within [an hour’s] call of the judgment-seat, except when out upon distant duty: word being left with [NA] where he was to be found.

Art. IX.—[Judgesb ] of immediate courts are also bound to go upon duty, in cases of necessity, at all hours, in manner hereinafter specified.

§ 4.

Oath of Office.

Art. I.—The following oath shall be taken by every [judgea ] upon his entrance into office. While pronouncing it, he shall stand up before the judgment-seat, in open court, with his left hand on his bosom, and his right lifted up to heaven:—

I, A. J., being raised by the choice of my fellow-citizens to the office of [NA], do solemnly promise and swear:

[Art. II.m —1. That so long as I continue in possession of my said office, I will, to the best of my ability, administer justice to all men alike, to high and to low, to rich and to poor, not suffering myself to be biassed by personal interest, by hope or fear, or by favour or aversion towards any individual or class of men or party in the state.]

Art. III.—2. That I will not endeavour to keep secret, but on the contrary study by all suitable means to render public, the proceedings belonging to my office, in all cases in which the law ordains them to be public.

Art. IV.—3. That I will keep secret, to the utmost of my power, the proceedings belonging to my office, in as far the law ordains them to be secret.

Art. V.—4. That I will not on any account, out of the regular course of justice, give ear to, but indignantly reprove, any application that may be made to me concerning any cause in contemplation of its depending or coming to depend before me, much less give any opinion or advice relative thereto: and that, should any such application be made to me in writing, I will forthwith produce and read the same in open court, although it should be contained in a private and confidential letter.

Art. VI.—5. That I will at no time accept any gift or favour that shall have been offered me, in the view either of influencing or recompensing my conduct on any particular occasion in the discharge of the functions of my office: and that, in case of my suspecting any favour to have been done or offered me with any such view, I will forthwith declare and make public my suspicion: nor will I knowingly and wittingly suffer any such offer or recompense to be made, on any such account, to any person dependent upon or connected with me; but that, on suspicion of any such offer or recompense, I will forthwith make public such my suspicion, together with the grounds thereof, and the names of all parties concerned.

Art. VII.—6. That I will not, on the occasion of any pecuniary or other bargain, directly or indirectly avail myself, or endeavour to avail myself, of the influence or authority of my station to obtain any advantage to myself or any other.

Art. VIII.—7. That I will not take any part whatsoever in any election; nor use any means, direct or indirect, to influence the vote of any other; excepting only the public statement of my pretensions according to law, on any election in which I shall myself be candidate.

Art. IX.—8. That I will not willingly absent myself from duty, except to the extent of the time allowed me by the law, or in case of unavoidable necessity, resulting from sickness or otherwise; nor then, without making the best provision in my power for keeping my place supplied.

Art. X.—9. That I will, as far as depends upon me, give to every cause that comes into my hands, the utmost dispatch that shall appear to me consistent with the purposes of justice: nor will In put off any cause, or give to any cause the priority over another, but for special reason publicly declared.

Art. XI.—10. That I will at no time, through impatience or otherwise, knowingly cause or permit justice to suffer by undue precipitation; and in particular, that I will not bestow less attention upon the cause of the poor than of the rich; considering that, where small rights are seen to be contemned, great ones will not be deemed secure; and that importance depends not upon nominal value, but upon the proportion of the matter in dispute to the circumstances, and its relation to the feelings of the parties.

Art. XII.—11. That I will not, through favour to those who profit by the expense of the administration of justice, conniveat, much less promote, any unnecessary expense; but on the contrary study, as much as in me lies, to confine such expense within the narrowest bounds compatible with the purposes of justice.

Art. XIII.—12. That I will not, through impatience, or favour to the professional advocate, show discountenance to him who pleads his own cause, or to him who pleads gratuitously the cause of his friend, but rather show indulgence and lend assistance to their weakness.

Art. XIV.—13. That I will, in all things touching the execution of my office, pay obedience to the law: and thato I will do my utmost to carry the same into execution, according to what shall appear to me to be the intent of the legislature for the time being; not presuming to set my own private will above the will of the legislature, even in such cases, if any, where the provisions of the law may appear to me inexpedient; saving onlyp the exercise of such discretionary suspensive power, if any, with which the legislature may have thought fit to entrust [me.q ]

Art. XV.—14. That I will not either make or revoke any appointment of a depute, permanent or occasional, with a view to favour or prejudice any suitor otherwise than according to justice, but for the common convenience of suitors, and only to the extent of the number which shall appear to me requisite to that end.

All these engagements I hold myself solemnly pledged to fulfil, by all the regard I owe either to the displeasure of Almighty God, or to the indignation and contempt of my fellow-citizens.

Art. XVI.—A copy of the above oath, printed in the largest type, and on one side only of the paper, with the signature of the [judgea ] at length to every clause, and at the end the date of the day when signed, shall be kept hung up in a conspicuous situation, near the [judgmentb ] seat, so long as he shall continue in office.

§ 5.

Deputes.

Art. I.—The duty of the permanent [judgea ] depute shall be to take the place of his principal, and with the same [powers,f ] whensoever the principal shall happen to be absent from duty, or preoccupied therein.

Art. II.—The [powerf ] of the [judgea ] depute permanent shall last as long as his principal continues in the same office, and until a vacancy in the office is filled up; unless the appointment be sooner revoked, which it may be at any time, or terminated in any of the ways in which the office of a judge principal may be vacated.

Art. III.—To the station of [judgea ] depute permanent, no emolument of any kind shall be annexed; except a habit of office to be worn while on duty, and a mark of honour to be worn at all times during his continuance in the station: and in rank he shall take place next his principal.

Art. IV.—A [judgea ] principal is civilly responsible for the acts of his deputes, permanent or occasional, having recourse to them for his indemnity: also criminally, in case of his concurring with, or barely conniving at, any behaviour known to him to be criminal on their part.

Art. V.—A [judgea ] depute permanent shall pronounce and sign the same oath as a [judgea ] principal, and in the same manner; excepting only the words [permanent or] in the 14th clause; and making the requisite change at the commencement relative to the style of office.

Art. VI.—A permanent [judgea ] depute is bound to the same attendance as his principal; except that he is allowed double the number of vacation days in the year (taking them only when his principal is upon duty,) and that he is not liable to be called to night-duty while his principal is in the way.

Art. VII.—Attached in like manner to the office of [judgea ] principal, shall be the power of appointing occasional [judgesb ] depute for the purpose of performing duty in any particular cause, or relative to any particular point in any particular cause.

Art. VIII.—To the function of occasional [judgea ] depute shall belong neither emolument nor permanent honour: but for distinction’s sake, he may wear, while on duty, a medallion, or other such mark of office.

Art. IX.—An occasional [judgea ] depute shall, previously to the first time of his taking upon him that function, pronounce and sign, in the presence of the judge who appoints him, [an oath the same as the above, mutatis mutandis:] and entry of his having done so, shall forthwith be made in the register-book of the court.

Art. X.—A permanent [judgea ] depute has in like manner, and under the same responsibility, power of appointing occasional [judgesb ] depute. But it is to be expected that he exercise it only in case of necessity, and for the reason that such appointment cannot be made by the [judgea ] principal: and such appointment is at any time revocable by the [judgea ] principal.

Art. XI.—As often as any act is done by or before a [judgea ] depute, either permanent or occasional, mention shall be made as well upon the face of the act, if written, as upon the register-book, by or before whom; and if in the instance of a [judgea ] depute occasional, by whom appointed.

Art. XII.—Care ought to be taken to avoid, as much as conveniently may be, the shifting of the same cause to different [judgesb ] unless when the points of which they respectively take cognizance, happen to be totally independent of each other: that [the judge who gives judgmentr ] may be as little as possible under the necessity of taking the grounds of his [opinions ] at second hand, from another man.

§ 6.

Responsibility.

Art. I.—The punishment of a [judgea ] for misbehaviour in relation to his office, may be to all or any of the effects following:—

1. Injunction to be more circumspect in future.

2. Suspension from office.

3. Deprivation.

4. Incapacitation for any office, or for certain offices.

5. Fine.

6. Imprisonment.

7. Obligation to make satisfaction, in the way of pecuniary compensation, or otherwise, to the party injured.

8. When the effect of the misbehaviour has been to produce death, or any other corporal suffering, on the part of any one, in the way of punishment, or otherwise; such offence, if accompanied with evil conscience,t [mauvaise foi,] shall be punished as if committed with the offender’s own hands.

Art. II.—Judges, pursuer-generals, defender-generals, and their respective deputies, being privy to any misbehaviour, accompanied with evil conscience, on the part of each other, and not informing in due time, are punishable, as for connivance.

TITLE IV.

OF JURISDICTION.

Art. I.—That shall be styled a man’s natural court, within the territory of which his ordinary and fixed abode is situated; that, his occasional court, within the territory of which he happens to be, for the time being: the defendant, for instance, at the instant he receives a summons, or is put under arrest.

Art. II.—Regularly all causes, as well penal as civil, belong to the defendant’s ordinary court: if he has more ordinary abodes than one, then to the courts corresponding to any one of such abodes, at the option of the pursuer.

Art. III.—But it may be dismissed in the state in which it is, at any time, from any one such court to any other, at the requisition of either party, upon consideration had of the mutual convenience of both.

Art. IV.—A cause may also be commenced in the defendant’s occasional court; subject in like manner, to be dismissed to his ordinary court.

Art. V.—But a cause relative to immovable property, may be heard and determined in the court of the subject-matter. Any such cause may be begun there; and if begun in the defendant’s court, or elsewhere, it may be removed from thence, by either of the parties, unless previously inhibited upon hearing before the judge. But although begun there, or removed thither, it may be dismissed, by the judge, to the defendant’s court, if he thinks proper, in consideration of mutual or preponderant convenience.

Art. VI.—A cause relative to specific property not immovable, shall be begun in the court of the defendant; but may be dismissed to the court of the subject-matter, upon consideration of mutual or preponderant convenience.

Art. VII.—A cause relative to a subject-matter situated in more jurisdictions than one, may be heard and determined in any one: and the decision of any one such court may bind the whole subject-matter; but it may be dismissed to any of the others, on consideration of mutual or preponderant convenience.

Any aggregate of different effects, comprised under, or referred to, by one and the same claim, are to be considered to this purpose, as forming one and the same subject-matter: for instance, the stock of a farm, situate within divers territories.

Art. VIII.—A cause may even be dismissed to the pursuer’s court, or to any foreign court, upon consideration of preponderant convenience: but the difference, in point of convenience, in this case ought to be considerable, and clearly established.

Art. IX.—In the estimation of comparative convenience, the pecuniary circumstances of the parties ought particularly to be taken into account.

Art. X.—A plaintiff, instead of carrying the cause before the proper court, whether of the defendant or of the subject-matter, may carry it before the court of any territory adjoining, so that the seat of such adjoining court be not farther distant than that of the proper one: but in so doing, he acts at the peril of costs, should the distance be found greater.

Art. XI.—A plaintiff shall be responsible, in costs and damages, as for vexation, if, without any convenience to himself, and merely with a view of putting his adversary, or any one else, to inconvenience, he commences a suit in, or removes it to, a court known to be inconvenient to them, even though the court be not improper: or, even with views of convenience, if the comparative convenience be deemed too slight on his side, to leave him any real hope of seeing the cause retained there.

Art. XII.—Where there are more plaintiffs than one, or more defendants than one, the convenience of every such party is to be taken into the account.

Art. XIII.—By consent of all parties, any civil cause may be carried on, in the first instance, before any immediate court whatever; nor shall it in that case be removed from thence but by like consent, or on account of very evident predominant convenience manifesting itself, since the giving of the consent.

Art. XIV.—But in such cases it behoves the judge to be upon his guard against causes collusively removed to a distant scene, for the purpose of prejudging the interest of a third person: and in such case, besides applying, should the case admit of it, the punishment appointed for this sort of fraudulent attempt, it behoves him, by suitable notices and publications, to render the success of it impracticable elsewhere.

Art. XV.—Causes, penal as well as civil, to which a French citizen is party, and in which the cause of action arose elsewhere than within the territory of France, belong regularly to the defendant’s courts: viz. to the courts of appeal, if judgment has already been given in any foreign court; otherwise, to the immediate courts: but in both cases subject to removal, on the ground of preponderate convenience.

Art. XVI.—A plaintiff, who, having commenced a suit in any court, commences another suit, relative to the same matter, in the court of another district, without leave obtained of the court first applied to, is responsible, as for vexation.

Art. XVII.—The judgment, order, and warrant of every court, shall be held good in the courts of every other territory, unless reversed in a court above, or pending the appeal for that purpose. Under that restriction, every court ought to lend its assistance to the execution of the order of every other.

Art. XVIII.—An order or warrant of a foreign court shall, when countersigned by a judge of the territory, receive the same obedience as if issued by him originally. It may even be obeyed without such counter-signature; and ought to be, rather than, on account of the delay occasioned by the application for such counter-signature, any failure of justice should ensue: unless the person whose obedience is called for, has reason to suspect the genuineness of it, or to know that the legality of it is disputed by the court of the territory in which such obedience is called for.

Art. XIX.—When a cause, or any incidental operation to be performed in the course of a cause, is brought before a judge, if he finds himself so circumstanced, in any respect, as to stand exposed to the action or influence of any cause of partiality, he ought forthwith to make known every such cause, except in the case hereinafter excepted (Art. XXII.) and decline acting accordingly: but if the party to whose prejudice alone such partiality, if it existed and operated, could redound, insists upon the judge’s taking cognizance notwithstanding, he may, and, rather than there should be any failure of justice, he is bound to do so.

Art. XX.—That no cause of partiality may be undisclosed, any questions tending to produce such disclosure may, at any time, be put to any judge, by or in behalf of any person interested: and to every such question, if pertinent in matter, and not disrespectful in manner, the judge is bound to make answer on the spot.

Art. XXI.—Examples of causes of partiality:—

1. Pecuniary interest of any kind, present or future, certain or contingent.

2. Relationship by blood, or alliance to any of the parties.

3. Intimate acquaintance.

4. Enmity, or litigation.

5. Relation of landlord or tenant.

6. Relation of debtor or creditor, if to an amount of sufficient importance to create any interest or dependence.

In accepting cognizance, or declining it, on such grounds, the judge ought to govern himself rather by the actual affection, than by the external cause.

Art. XXII.—And, forasmuch as there may be secret causes of partiality, which a man could not disclose without great pain and prejudice to himself, a judge may, on such consideration, decline jurisdiction, without cause assigned, whensoever it can be done without failure of justice; doing as much as in him lies, to save the parties from suffering any prejudice thereby.

Art. XXIII.—Examples:—

Where he, or a son, or other such near relation of his, has any secret design, declared, or not yet declared, of courting any woman in marriage; or soliciting preferment, or other favour, at the hands of any person, the same being party to the cause, or connected with one who is.

Art. XXIV.—In any such case he may, without blame, silently transfer the cognizance to a judge-depute, permanent or occasional; (or, if he be a judge-depute, to his principal:) but, if this cannot be done, he may pray the party’s excuse, on the general allegation of motives of delicacy, referring him to an unexceptionable judge of some adjoining territory, or in the case of a parish [or canton] court, to the district court above.

Art. XXV.—Although parties may, by consent, carry a cause before a court which is not, in any respect, a proper one, yet the judge is not bound, nor ought he to accept the cognizance of it, to the prejudice of the dispatch due to the suitors of his own territory.

Art. XXVI.—The following are the cases in any of which a court may be deemed a proper one, to the purpose of obliging the judge to take cognizance:—

If it be—

1. The court of any defendant, ordinary or occasional.

2. The ordinary court of any plaintiff.

3. A court nearer situated with respect to the abode of any of the parties than his own.

4. The court of the subject-matter.

5. The court of the cause of action; i. e. where the offence, whether public or private, was committed.

6. In case of contracts, the court of the territory where the contract was entered into.

7. A court adjoining to one from whence the cause has been dismissed, on the ground of an avowed cause of partiality on the part of the judge, or through motives of delicacy, as by Art. XXIV.

Art. XXVII.—A judge, though not bound to take cognizance of a cause for the purpose of definitive decision, is not the less bound to do any act which, to prevent failure of justice, may be necessary to be performed before the cause can be commenced in any proper court: such as the examination of a witness who is upon the point of departure; the arrestment of such witness if necessary; the examination or seizure of effects capable of supplying evidence; the seizure of effects for the purpose of insuring the responsibility of the defendant in case of conviction; and the like.*

Art. XXVIII.—Complaints of misbehaviour on the part of a judge in the execution of his office, and petitions for expedition on his part in a cause depending before him, shall be preferred only to the court of appeal to which his court is immediately subject. This extends to deputes permanent, as well as to principals.

Art. XXIX.—Other actions, as well criminal as civil, in which a judge is defendant, may be brought in an immediate court of any territory adjoining to his; but may be dismissed from thence to any other except his own, on the ground of preponderant convenience.

TITLE V.

OF THE PARISH COURT.

§ 1.

Of the Judges.

Art. I.—To the principal ecclesiastical minister of every parish shall belong, within the limits of his parish, all the powers of an immediate judge, under the name of the judge natural of that parish; unless where such authority shall have been superseded by the appointment of an instituted judge.

Art. II.—The district assembly may, under the controul of the department assembly, decree, with the consent of any parish, that such parish shall thereafter, instead of the natural, have an instituted judge; fixing a salary, which in that case the parish shall be bound to pay, for the maintenance of the judge.

Art. III.—Upon a vacancy in such office of instituted judge, the authority of the natural judge shall revive of course, and continue till the vacancy has been filled up.

Art. IV.—The power of appointing to the office of parish judge shall belong to the district assembly, subject to the approbation of the municipality of the parish; unless where the district assembly has transferred it altogether to the municipality, which it ought to do, wherever the population and opulence of the parish is such as to afford a sufficient security against an overbearing influence on the election in the hands of a small number of individuals.

Art. V.—In the same way may be appointed any additional number of Fellow-judges, upon the terms of fixing a competent permanent salary for every such judge. But no two judges shall take cognizance at the same time of the same point in the same cause.

Art. VI.—The district assembly, under the controul of the department assembly, may give the local field of jurisdiction of any parish court an extent greater or less in any degree than that of the parish; and to that purpose may new-model the local divisions of any part of their territory, in what manner they deem most convenient; regard being had to extent, population, and the pecuniary faculties of the inhabitants.

Art. VII.—An instituted parish judge shall hold his office for life, unless divested of it in one or other of the following ways, viz.—

1. Resignation.

2. Forfeiture judicially pronounced.

3. Amotion by the suffrages of a majority of the whole number of active citizens belonging to the parochial territory, confirmed by the district assembly.

4. Amotion by the department assembly.

Art. VIII.—Amotion, without forfeiture, shall not deprive him of his salary; but may deprive him, if so ordered, of the faculty of being re-elected into the same seat.

Art. IX.—A cause commenced in a parish court, whether it be before the natural or an instituted judge, may at any time be evoked by the immediate district court, at the instance of any party, but upon consideration had of the mutual convenience of all parties. But the judge of the district court, before he issues the order of evocation, or puts a party to the trouble of showing cause against it, should assure himself, as far as may be done by the examination of the party applying for it, that the power of granting it be not abused to the purpose of vexation, should that appear afterwards to have been the object, the party applying for such order shall be responsible in costs and damages.

Art. X.—Care ought to be taken, on the other hand, in penal causes, by the pursuer-general of the district, that, through simplicity or criminal connivance on the part of a judge of a parish court, the powers of such court be not abused to the purpose of acquitting an offender, by suppression or partial examination of evidence, or to let him off with less punishment than is due; particularly in cases of offences merely public, where, there being no person specially injured, there is no person specially interested to appeal: and to this end he may, without waiting to appeal, evoke the cause to the immediate district court at any time.

Art. XI.—The judge of a parish court may and ought to remit the cause of his own accord to the district court, wheresoever it appears to him that the purposes of justice would be better answered by his remitting it than by his retaining it.

Examples:—

1. Wherever it seems unlikely that the judgment of the parish court, whichever way given, would be acquiesced in: as may happen from the intricacy of the inquiry, or the magnitude of the subject in dispute; especially in a court where there is no other than the natural judge.

2. Where the cause, by reason of its complexity, is of a nature to take up more time than could be spared by the judge from his other official occupations; at the same time that the territory affords no person competent to serve in that instance in quality of judge-depute.

Art. XII.—Examples of causes apt to be of a nature particularly complex:—

1. Causes relative to matters of account; especially if the account be mutual, and the items numerous. Every disputed article is in fact the subject of a distinct cause.

2. Bills for work done by artists or others, whose work it is difficult to judge of; such as architects, bailiffs in husbandry, stewards, attornies, and other agents, &c.

3. Causes relative to mercantile accounts.

4. Causes relative to the division of the mass of property left by a person deceased.

5. Causes relative to the division of insolvents’ estates.

6. Causes relative to the division of common lands.

Art. XIII.—But notwithstanding such remittal, the judge, rather than suffer any evidence to be lost, ought to collect and record it, if thereto required on either side.

§ 2.

Place of Judicature.

Art. I.—In a parish where there is no instituted judge, the ordinary place of judicature shall be the parish church; in which the natural judge or his deputy shall sit, to transact whatsoever judicial business presents itself, every time of divine service, in the face of the congregation, immediately after the service.

Art. II.—Such natural judge, or his deputy, may also do judicial business in his own house: but, for the sake of publicity, in all cases where secresy is not required, he ought rather to prefer the church, if the business can wait without prejudice to the next time of divine service.

Art. III.—In penal causes, other than secret ones, definitive judgment shall never be pronounced by the natural judge elsewhere than in church; though measures in the nature of execution may be taken provisionally, to prevent failure of justice.

Art. IV.—Causes which, being commenced in, or brought to church at a time of divine service, cannot conveniently be finished at that time, may be adjourned, on notice then publicly given, to a time nearer than the next time of divine service.

Art. V.—Every Sunday, before the conclusion of divine service, the minister shall read a list of all the causes (not secret) in which any judicial business has been done in the course of the week, with a brief intimation of the nature of the business done in each.

Art. VI.—Any person who conceives himself to have reason to complain of anything done, or omitted to be done, in the way of judicial business, by such natural judge, out of church, may, on the next Sunday after such ground of complaint comes to his knowledge, or, if on that day prevented without his default, on the first Sunday in which it is in his power, state such ground of complaint to the judge, in the face of the congregation: on which occasion any questions relative thereto may be put to him by or in behalf of the persons interested: and to every such question, if pertinent in matter, and not disrespectful in manner, the judge is bound to make answer on the spot; and, if thereto required, to set down in writing each question, with his answer, or refusal to answer, proceeding in the same manner as in the making up of a record [procès verbal.]

Art. VII.—No creation shall be made, as by § 1, Art. II., of an office of parish judge, without making provision at the same time for a justice-hall, with a dwelling-house for the judge. And until such hall and dwelling-house are built, or otherwise provided, the same use shall be made of the church, for the purposes of justice, by the instituted, as might be by the natural judge.

Art. VIII.—On Sundays, instead of the justice-hall, the court shall be holden in church, immediately after divine service; and in the case where the jurisdiction of a parish court has been made to extend over divers parishes, then alternately in the churches respectively belonging to those parishes.

Art. IX.—Minutes of the judicial business done in that parish since the last time of sitting there (such minutes being drawn up upon the plan mentioned in Art. V.) shall then also be read by the minister before the conclusion of divine service, having been furnished him for that purpose by the judge.

TITLE VI.

OF THE IMMEDIATE DISTRICT COURT.

Art. I.—To the immediate district court belongs all immediate judicial power (that of the tribunals of exception excepted) within the territorial limits of the district, in concurrence with the several parish [or canton] courts within the district.

For other matters touching its jurisdiction, see Tit. II. III. IV. and V.

Art. II.—To the judge of the immediate district court, the district assembly, under the controul of the department assembly, may add as many fellow-judges as it thinks proper, with the same powers, rank, and salary; provided that no more than one judge shall act at the same time, on the same point, in the same cause.

Art. III.—The salary of a judge of an immediate district court shall be [ NA ] livres a-year.

Art. IV.—In the following cases there shall regularly be no appeal from the district court of appeal to any other court:—

1. Embezzlement.

2. Theft.

3. Defraudment, except where operated in the way of forgery.

4. Robbery.

5. The attempt or preparation to commit an offence of any of the above kinds.

6. Homicide, or incendiarism, in prosecution of the design of committing an offence of any of the above kinds.

Art. V.—Appeal, however, shall go, in any of the above cases, to the metropolitan court, upon a requisition made for that purpose, and signed by any of the following sets of persons:—

1. One [fourth] part of the whole number of the members of the department assembly.

2. One [fourth] part of the whole number of the members of the district assembly.

3. One [fourth] part of the whole number of the members of the community of the town where the district court of appeal has its seat.

4. One [tenth] part of the whole number of the active citizens of the town, in a town of 4000 inhabitants, one twentieth in one of 8000 inhabitants, one thirtieth in one of 12,000 inhabitants, and so on. [See Décret sur les Municip., Art. V.]

Art. VI.—To the end that due time may not be wanting for the collection of signatures, [two] days at least, both exclusive, shall intervene, in every case, between the day of sentence and the day of execution: within which interval, if three members of any of the administrative bodies, or ten of the active citizens, above mentioned, concur in signing and presenting a preliminary requisition to that purpose, [seven] such entire days, reckoning from the day of presentation, shall be given, for collecting signatures for a definitive requisition.

Art. VII.—But, although appeal be excluded, petitions for expedition may, at any time, and in all causes, be preferred from this court to the court next above, as well as complaints for misbehaviour on the part of the judge.

Art. VIII.—In civil cases, on a judgment of the district court of appeal, execution shall have place provisionally, notwithstanding the appeal; security being exacted, and the other precautions taken which are prescribed in the code of procedure, to prevent the happening of irreparable damage.

Art. IX.—So in penal cases, where the punishment decreed is no other than pecuniary; as likewise with regard to such part of the punishment, if any, as is not contested by the appeal.*

Art. X.—If, for want of such precaution, or through insufficiency of the precaution, irreparable damage should actually ensue, the least punishment to which the judge can be sentenced is, in case of evil intention [mauvaise foi,] forfeiture and incapacitation, together with the obligation of making such pecuniary satisfaction as is in his power: in the case of culpable negligence, or temerity, injunction to be more circumspect, together with a fine applicable in part of satisfaction.

Art. XI.—Examples of cases of irreparable damage:—

1. Loss of female honour, by delivery into the power of a false husband, father, guardian, or master.

2. Loss, destruction, or damage of effects possessed of a value of affection, such as trees, serving for shelter or ornament; favourite animals; uncopied manuscripts; family pictures; matchless articles of natural history, antiquities, &c.

Art. XII.—In civil cases, and in penal cases, where the punishment decreed is no other than pecuniary, no appeal shall be suffered to go from the district court of appeal till the appellant, if not a pauper, has deposited in the hands of the public advocate, on the other side, [48] livres; which sum shall be forfeited, over and above costs, if the decree of the court above is unfavourable to the appeal, unless the judge of the court above enters upon the instrument of appeal a certificate of reasonable cause.

Art. XIII.—Nor although the defendant be a pauper, unless, previously to the appeal, his advocate-general at the court appealed from shall have entered a like certificate.

Art. XIV.—But if he can find any one to advance the deposit, as likewise any responsible person to be his security for the costs, the appeal shall go, without any such certificate. And for this purpose, two full days shall be allowed him, between the signing of judgment and the execution, saving all precautions necessary to prevent the execution from being eluded.

Art. XV.—Deposit-money thus forfeited shall go to [the paymaster of the district] to the use of the district, and be comprised in the public advocate’s quarterly account with [the paymaster,] according to Tit. XIV.

TITLE VII.

OF THE DISTRICT COURT OF APPEAL.

Art. I.—To the district court of appeal belongs the cognizance of all causes (those belonging to the tribunals of exception excepted) in the way of appeal, as well from the immediate district court as from the several parish [of canton] courts within the district.

For other matters touching its jurisdiction, see Tit. II. III. IV. and V.

Art. II.—To the judge of the district court of appeal may be added fellow-judges, in like manner as to the judge of the immediate district court, according to Tit. VI.

Art. III.—The salary of a judge of a district court of appeal shall be [NA] livres a-year.

TITLE VIII.

OF THE DEPARTMENT COURT.

Art. I.—To the department court belongs the cognizance of all causes in the way of appeal from the district court of appeal; or of complaint for misbehaviour on the part of the judge, or of petition for expedition; but of no cause in the first instance.

For other matters touching its jurisdiction, see Tit. II. III. IV. and V.

Art. II.—To the judge of the department court, the department assembly may add as many fellow-judges as it thinks proper, with the same powers, rank, and salary: provided that no more than one judge shall act at the same time, on the same point of the same cause.

Art. III.—The salary of a judge of a department court shall be [NA] livres.

TITLE IX.

OF THE METROPOLITAN COURT.

Art. I.—The judges of the metropolitan court shall be elected by the national assembly. No vacancy shall be filled but out of the rank of judges next below.

Art. II.—A judge of the metropolitan court shall hold his office for life, unless vacated in one or other of the following ways:

1. Resignation.

2. Forfeiture judicially pronounced.

3. A motion by a majority of all the members entitled to vote in the national assembly.

4. A motion by a majority of all the electors and members entitled to vote at the last preceding election, general or particular, for the choice of a judge of the metropolitan court, or of a member of the national assembly.

Art. III.—By a motion without forfeiture, a metropolitan judge loses his judicial rank, but not his salary. He also loses his capacity of being re-elected during the continuance of the same legislature.

For other matters touching its jurisdiction, see Tit. II. III. IV. and V.

Art. IV.—The salary of a judge of the metropolitan court shall be [NA] livres.

Art. V.—To the metropolitan court shall belong [NA] judges, with equal power, rank, and salary: provided that no more than one judge shall act at the same time, on the same point, in the same cause. But as many as happen at any time to be unemployed, may, and ought to sit as assessors without vote.

Art. VI.—To the metropolitan court belongs the cognizance of all causes not particularly excepted, in the way of appeal from the department court [or, if no department courts, from the district courts of appeal.]

Also complaints for misbehaviour, and petitions for expedition, even in such cases as are excluded from appeal.

Art. VII.—Business, as it comes in, shall be distributed among the several judges by rotation.

Art. VIII.—From the decree of a judge of the metropolitan court, neither can any appeal, nor any petition for expedition, be preferred, without being accompanied with a complaint of misbehaviour on the part of the judge: nor can any order for expedition be issued to him, nor any change be made in his decree, without censure passed on him at the same time.

TITLE X.

NATIONAL ASSEMBLY COURT.

Art. I.—Complaint against a judge of the metropolitan court for misbehaviour cannot be made anywhere but in the national assembly, nor there unless signed by [six] members.

Art. II.—If received by the assembly, it shall appoint two committees, one to try and report, the other to prosecute.

Art. III.—Such trial shall be conducted, from beginning to end, with open doors, and with the utmost possible degree of publicity.

Art. IV.—No criminal accusation shall be preferred in the national assembly against any other person whatever than a judge of the metropolitan court, except for offences committed in face of the assembly.

TITLE XI.

OF PURSUER-GENERALS.

Art. I.u —The functions of a pursuer-general of an immediate court shall be, in civil matters—

1. To reclaim the execution of all laws in the execution of which no individual has any special interest, and of those in the execution of which the nation has a special interest of its own, superadded to that of individuals.

2. u To act on behalf of the king in his individual capacity, as well in the character of defendant as that of plaintiff.

3. To act on behalf of every [plaintiffv ] who, through poverty and want of friends, is unable to engage any other advocate.

4. To obviate any prejudice he sees likely to result to justice from any oversight or unskilfulness on the part of a [plaintiffv ] who pleads his own cause, or on the part of his advocate, gratuitous or professional.

Art. II.—In penal matters—

1. To superintend the proceedings of every private prosecutor; to assist him, in case of oversight or unskilfulness; and to watch over him, and prevent collusion with the defendant.

2. To reclaim the execution of all penal laws, by performing the functions of prosecutor where no private prosecutor has first presented himself, and in the cases, if any, where individuals are not admitted to prosecute.

Art. III.—In cases where the administrative body of the territory for which he serves, is empowered to act in the character of pursuer by the hands of its procurator-syndic, and the pursuer-general is not engaged by his office in the other side, he has concurrent authority with such procurator-syndic, each cause belonging to that one of them who is first seized of it. But, to prevent collusion or remissness, each of them has a right to receive communication of all such business carried on by the other.

Art. IV.—Where a [pursuerv ] whose interests a [pursuer-generalw ] has espoused, happens to be made [defendantx ] in a cross cause growing out of that in which he was [pursuer,v ] the [pursuer-general,w ] and not the [defender-general,y ] shall take in charge the interests of such party in such derivative cause.

Art. V.—In a court of appeal, the client of the [pursuer-generalw ] shall be the party who was the client of the [pursuer-generalw ] of the immediate court in the original cause.

Art. VI.—Clauses in the oath of office to be taken by the pursuer-generals, in the room of clause I. in the oath appointed to be taken by judges:—

1. That I will, at all times, be vigilant in looking out for, forward in entering upon, and faithful in executing, all such business as the law has given in charge; not suffering myself to be turned aside from the pursuit or the performance of it, by indolence, or by interest, by hope or by fear, by affection or by enmity towards any individual, or class of men, or party, in the state.

Art. VII.—3. That in my zeal on behalf of the cause I have in charge, I will not seek to serve it at the expense of truth or justice. I will not use any endeavours to cause to be received as true, any fact which I do not believe to be true; nor as just, any conclusion which I do not believe to be just; nor my persuasion of the truth of any fact, or the justice of any conclusion, as stronger than it really is: nor will I seek to put upon the conduct of any man, any colouring other than what I believe to be true; nor will I exercise partiality in favour of the party whose interest I espouse, any otherwise than by doing such acts as justice requires to be done, and giving such counsel as justice requires to be given, on his behalf, and by applying my faculties to the discovering and presenting of such considerations as make in favour of his cause, in preference to such as make against it.

☞ For the provisions relative to pursuer-generals, see Tit. III. Of Judges.

TITLE XII.

OF DEFENDER-GENERALS.

Art. I.—The functions of a defender-general of an immediate court shall be, in matters civil as well as penal—

1. To act on behalf of every defendant who, through poverty and want of friends, is unable to engage any other advocate.

2. To obviate any prejudice he sees likely to result to justice, from any oversight or unskilfulness on the part of a defendant who pleads his own cause, or on the part of his private advocate, gratuitous or professional.

Art. II.—To act on behalf of the administrative body of the territory, for which he serves, in cases where the pursuer-general is engaged on the other side. But this in concurrence with the procurator-syndic of that body, in the same manner as the pursuer-general would have had to act.

☞ For the other provisions relative to defender-generals, see Tit. III. Of Judges, and Tit. XI. Of Pursuer-Generals.

TITLE XIII.

OF SECRET CAUSES.*

Art. I.—In certain causes the proceedings shall be secret throughout, except in the courts hereinafter mentioned. These are—

I. Where secresy is necessary to the peace or honour of families, by reason of the dishonour, or other uneasiness, which might ensue, if the disagreements and weaknesses, and other unprosperous circumstances of their members, were to be divulged to the world at large.

On this ground, the following causes are to be classed under the head of secret causes:—

1. Generally all causes in which near relations are concerned against each other.

2. Also causes betwixt guardian and ward, in as far as the propriety of the conduct of the ward comes in question.

Art. II.—Under the denomination of near relations are to be comprehended, for this purpose, persons related to an individual in any of the following degrees, by blood or alliance; viz.

1. Wife, or husband.

2. Descendants.

3. Father, mother, and other relations in the descending line.

4. Brethren and sisters, of the whole or half blood, and their descendants.

5. Uncles and aunts, of the whole or half blood, in any degree.

Art. III.—To this class belong, in a more especial manner, causes of the following nature:—

1. Causes between husband and wife, for disobedience, extravagance, hard treatment, adultery, or impotence.

2. Causes between parent and child for extravagance, undutifulness, idleness, theft, embezzlement, defraudment, indecorum, on one side; or hard treatment, or neglect of education, improper education, or exposal of chastity, on the other.

3. Prosecutions for incest; and causes in the course of which incest may come to be proved, or to be attempted to be proved.

4. Causes relative to the pregnancy or delivery of unmarried women, and the discovery of the father of the child.

Art. IV.—But the secresy shall not be carried beyond the occasion; insomuch that, in relation to any point in respect to which it may be clear that neither the honour nor the peace of the parties litigant, or any of them, can be affected by the publicity of the proceedings, the same publicity shall be observed as in other cases.

Such may be, for example,

1. Any mere question of law relative to a family settlement, or a will, or a share in the effects of an intestate.

2. Any question of fact in any such cause not affecting the moral character of the party, or relative to the conduct of some stranger.

Art. V.—II. Where secresy is dictated by the regard due to decency. To this class belong such causes as are covered with the veil of secresy, in order to avoid wounding or enfeebling the sentiment of modesty, as well on the part of the auditors as the persons concerned, viz.

Causes, as well penal as civil, relative to any irregularities of the venereal appetite; including several of those mentioned under the former head.

Art. VI.—In causes appointed to be kept secret for the peace or honour of families, the secret mode of proceeding shall not be observed unless on the requisition of some one at least of the parties.

Art. VII.—Causes appointed to be kept secret for the sake of decency, shall be kept so although the parties were all of them to desire the contrary.

Art. VIII.—The seal of secresy, having been once affixed, shall not be taken off, unless in the cases mentioned in Art. IV. until after judgment in the last instance: nor then, unless some one of the parties demands it; alleging for the ground of his demand, partiality on the part of the judges, or some one of them, through whose hands it has passed. The cause shall in that case be re-heard publicly before a judge of equal rank, to be named by the supreme court; and if such charge of partiality shall have been deemed rash or malicious, the offender shall suffer as well for the wound given to the peace or honour of the family, as for the calumny against the judge.

Art. IX.—III. In certain causes, secresy shall be observed at the outset, to prevent falsehood from gaining instruction. These are—

1. All penal causes admitting of corporal punishment, afflictive or ignominious, or imprisonment, or banishment for any longer term than a year.

2. All causes, civil as well as penal, upon special and satisfactory reason given for apprehending a confederacy in falsehood.

In the latter class of causes, the examination of each examinant, whether party or witness, may, and in the former shall, of course, be performed in secret; and such secret examination may even be repeated, so long as it is thought proper by the judge to examine them separately: but judgment shall never be given until the minutes of secret examination have been read in public, the examinants re-examined in public, with liberty to object to the verity of the minutes, and confrontation, where proper and possible, performed, and parties and advocates on both sides heard in argument.

Art. X.—Out of regard to pecuniary reputation, certain inquiries shall, at the requisition of any party, be made in the secret mode, in the course of whatever cause they come to be made. These are—

1. Inquiries made relative to the pecuniary circumstances of both or either of the parties, for the purpose of awarding satisfaction in case of an offence other than infamous.

2. Inquiries made, in the same view, relative to the circumstances of the party injured, in case of an infamous offence.

3. Inquiries made, in cases of debt, into the pecuniary circumstances of either party, for the purpose of ascertaining whether any and what respite shall be granted to the debtor.

Art. XI.—Present at all secret business shall be a pursuer-general and a defender-general; and, if necessary, a secretary of the court, to take the minutes, sworn to secresy in like manner as the magistrates above mentioned. [See Tit. III. § 4.]

Art. XII.—For all secret business a particular register-book shall be kept under the name of the secret register-book.

Art. XIII.—Secret business, unless in case of out-door duty, shall be transacted in the judge’s chamber; the adjournment being performed only for the moment in incidental inquiries, and the auditory left sitting in the public place of justice.

TITLE XIV.

PAUPERS.

Art. I.—The judge, if upon report by the pursuer-general or the defender-general, as the case is, it shall appear to him that, for the rendering of justice in any cause, certain expenses are necessary on the part of either of the parties, who is unable to defray them, shall draw upon [the paymaster of the territory] in favour of such advocate, to the amount of such expense; and so from time to time, as often as there shall be occasion, during the continuance of the cause.

Art. II.—In such draught shall be specified a particular of all the several purposes for which the money shall be deemed necessary by computation: and it shall be signed by the public advocate of the pauper, as well as by the judge.

Art. III.—[Four] times in every year [viz. on the quarter-day in each quarter,] the public advocates of the territory shall each deliver in to [the paymaster] an account of the disbursements of all monies so drawn for and received, distinguishing under the head of each cause, the monies received and disbursed on account of that cause; and stating each item of disbursement, according to the time on which, and the particular service for which it was made: and shall, at the time of delivering in such account, refund the whole of the balance which the account admits to be in their hands.

Art. IV.—If the adversary of the pauper on whose account money has been drawn for, as above, should be a solvent person, and it should be thought fit, by the judge, to charge him with costs, the amount shall be paid to the pauper’s public advocate, and by him refunded to the [paymaster of the territory] at the next periodical time of settling their accounts.

TITLE XV.

OF TRIAL BY JURY.

Art. I.—Trial by jury shall be awarded no otherwise, than upon requisition made by some one of the sets of persons, at whose requisition appeal goes, according to Tit. VI. from the district court of appeal to the metropolitan court, in the cases not regularly appealable: nor shall requisition be made for that purpose, until the judgment of the metropolitan court has been sent down to the immediate district court, where execution, if awarded, is to be performed.

Art. II.—In the following cases alone, requisition for such purpose may be made:—

1. Where the judgment of the metropolitan court imports sentence of death, or indelible corporal punishment, or afflictive corporal punishment, or ignominious corporal punishment, or imprisonment, or banishment from the kingdom for a longer term than a year.

2. When the decision of the metropolitan court, respecting the principal question of fact, is opposite to the decisions of both the courts below.

Art. III.—In all cases where such requisition is admitted, the judgment of the metropolitan court, after having been publicly read in the immediate court, by which execution is to be awarded, shall be hung up, in conspicuous characters, in a particular part of the court appropriated to that purpose: and, to give time for the collection of signatures, [two] days, both exclusive, shall intervene in such case, between the hanging up of such judgment and the execution of the sentence, for a preliminary requisition, as according to Tit. VI.; and [seven] entire days more, reckoning from the time of presentation, for a definitive requisition.

Art. IV.—Upon a rehearing thus laid before a jury, all witnesses ought regularly to be re-examined: but as it may happen that, in a cause ever so strongly contested, there may be certain points, the evidence respecting which may appear to every one incontestible; and that the abode of the witnesses, relative to those points, may be in foreign parts, or very distant parts of the kingdom; the persons requiring may, in their requisition, distinguish such witnesses from the rest: in which case, the reading of the minutes of what passed on the examination of such witnesses at the former trial, shall stand in the place of their re-examination. And it is the duty of the judge to point out to the subscribers, when attending him with the requisition, all witnesses so circumstanced.

Art. V.—The manner of striking a jury shall be as follows:—

Forty-two persons shall be taken, by lot, out of the list of the active citizens dwelling in the town, or in any parish of which the church is not more than one great league distant from the town-house: the lottery being drawn by [the keeper of the list,] in the presence of both parties, or their representatives. Of these forty-two, the pursuer and the defendant shall each strike off twelve: the remaining eighteen shall be bound to attend: of those who attend, an equal number shall again be stricken off by the parties (if there remain an odd one, that odd one by the judge,) till the number be reduced to twelve; these twelve shall sit upon the trial.

Art. VI.—The judge to try the cause shall be a judge of appeal of some one of the districts contiguous to that by the immediate court whereof the sentence would have been to be executed: the choice to be determined by a lottery, drawn in presence of the parties, or their representatives, by the judge of such immediate court: provided that the judge so chosen may sit by deputy, if he thinks proper.

Art. VII.—The punishment of a juror, for non-attendance, shall be a fine of [12] livres: and if the cause should be delayed for want of a sufficient number, the absentees shall, amongst them, be chargeable with the costs occasioned by such delay.

Art. VIII.—To prevent such delay, the number deficient may be supplied amongst the bystanders, to be named upon the spot, by the judge; and each person so named, if possessed of the qualifications of an active citizen, shall, unless objected to by either party, for specific and sufficient cause, be forthwith aggregated to such of the jurymen as appear, until the full number be completed.

Art. IX.—Persons who have once served on a jury, or attended for that purpose, shall stand exempted from taking their chance a second time, until the number remaining liable shall be reduced below eighty-five.

Art. X.—When the evidence has been gone through, the arguments heard, and the judge’s charge delivered, balloting-balls shall be delivered to the jury, three to each: one black one, to denote conviction; one white, to denote acquittal; and the one half black and half white, to denote uncertainty. To give their votes, each shall secretly deposit, in one common box, provided for that purpose, the ball expressive of the state of his opinion, returning the two others, with equal secresy, into the common box, or bag, in which they were brought.

The defendant shall stand acquitted, if more white balls than one are found in the voting-box, or if there be not so many as seven black ones.

Art. XI.—If in the course of this rehearing any fresh matter comes out, tending to aggravate or extenuate the offence, the judge, in case of conviction, may vary the punishment accordingly: but if not, it is expected of him that he adhere to the sentence pronounced by the metropolitan court.

Art. XII.—At the trial, either party may object to any juryman, on the ground of partiality: and such objection shall be allowed or disallowed by the judge, according as, upon due examination, he finds reasonable. But every such objection shall be made, before the parties are admitted to strike off jurors, without cause assigned: nor shall either party be admitted to object to any juror, after the numbers have been reduced to twelve, unless he show, to the satisfaction of the judge, that good cause of objection, on his part, lay to all those whom he struck off, out of the whole number of forty-two, at the time of the drawing of the lottery.

Art. XIII.—Causes of partiality to warrant the challenging of a juror, may be any of those specified in Tit. IV., to which may be added, the case where there is reason to think that the juror challenged is, by reason of some party affection, prejudiced against the challenger. But the allowing or disallowing the challenge rests, in all cases, upon the discretion of the judge, determining upon the party’s own examination, upon oath, and any other evidence that happens to be forthcoming upon the spot.

Art. XIV.—The metropolitan court may, if it thinks proper, order that, in the event of a requisition made for a jury, the minutes of the former trial, as well as of the proceedings in the appeals, shall be printed, at the expense, and sold for the account, of the district where the trial will be: in that case, the trial before the jury shall not come on till the minutes above mentioned have been printed, and a copy delivered to each of the eighteen jurymen remaining after the lottery has been drawn, and the jury reduced to that number, from forty-two, as by Art. V.

The jury, if, upon comparison of the evidence upon the trial before them with the evidence on the former trials, they should deem the requisition of a jury to have been frivolous, and made without reasonable cause, may, if they think fit, decree that the loss, if any, upon the publication of the minutes above mentioned, shall be borne jointly by the persons by whom the requisition was signed.

BENTHAM’S DRAUGHT

FOR THE ORGANIZATION OF JUDICIAL ESTABLISHMENTS, COMPARED WITH THAT OF THE NATIONAL ASSEMBLY, WITH A COMMENTARY ON THE SAME.

CHAPTER I.

Tit. I.—

Of Courts of Justice, and of Judges in general.*

New Draught.—Art. I. The fountain of justice is the nation, through the channel of the legislature. Justice shall not be administered in the name of the King, or any single person. (1)

Committee’s Draught.—Art. I. Justice shall be administered in the name of the King. No individual subject, no body-corporate, can have the right of causing it to be rendered in their names. (a)

Observations.—(1) Justice to be administered in the king’s name?—Why so? why in the name of any one? What is the meaning of administering justice in this or that person’s name? Whatever is done in the way of justice, is done under the authority of some judge, either immediately by himself, or by some person under his controul. In this way, as in every other, whatever act is done by any man ought to bear the name of him who does it, that the title it has to obedience may be exactly known, and that he whose act it is may be responsible for the consequences. The introduction of the name of any person other than the judge, in acts expressive of the will or opinion of a judge, is of evil example, and tends to inculcate false and mischievous conceptions. The king’s name ought least of all to stand as an exception to this rule: if the king’s will is the cause of rendering justice, the inference is, that the king’s will ought to be the guide in rendering it. To what purpose, then, begin a body of laws with a figure of speech, which has no precise meaning, which has no use, and which, if it had any effect, would have a mischievous one?

The idea of the king’s being, as the lawyers term it, the fountain of justice, is a remnant of feudal barbarism; a branch of that poisonous tree which the National Assembly have already, to their immortal honour, rooted up.*

Under that system, that justice should be administered in the king’s name was equally natural and proper:—Why? because under that system it used actually to be administered by him: under that system he used actually to sit as judge. It was equally natural and necessary he should do so: he of all men stood the best chance, though a precarious one it often was, of seeing his decrees respected: he, whose standard was followed in time of war, was the only man whose voice would be listened to in time of peace. In that short interval, justice was his great employment. Legislation there was scarce any: foresight, leisure, intelligence, power, every requisite for it, was wanting. Peace was kept, government was carried on, as occasion started, in the ex post facto mode of judiciary decrees. Administration there was next to none: no public purse: towns without government, except that of masters over slaves; no standing army; the idea of colonies and of a navy equally unknown; there was next to nothing to administrate. The king was maintained, and a considerable part of the small expense of government defrayed, out of the king’s private estate.

As the business of legislation and administration increased, not to mention the more important business of luxury and pleasure, the king withdrew himself little by little from the judgment-seat: first, judges were called in to his assistance: by degrees he left them to sit and act by themselves, with liberty to make use of his name. In that state of things, there was a use and propriety in introducing the king’s name into the proceedings of courts of justice. At this time of day, were a king to take a fancy to resume his long-abandoned station on the judgment-seat, would either Frenchmen or Englishmen permit it? They know better. Court is the region of favour: the very air of it is pestiferous to justice. Then why give the people to understand that the king is judge, when he is no such thing? Leave the rattle of fiction to such children in legislation as our lawyers. You, who to the virtue of youth, add the intelligence of manhood, what use can such toys be of to you?

If, for the sake of dignity, you wish at any time, in the language of your solemn acts, to throw a sort of veil over the personality of the judge, a better cannot be found than what all nations possess in the abstract term Justice: instead of De par le Roi, say De par la Justice.

The king, it will be said on the other side, is the executive power: it is in his name, therefore, that the decrees of justice ought to be executed; at least, if not originally promulgated. This comes of old confused systems and ill-imagined appellatives. The king is not, nor ever can be, in any proper sense of the word execution, the executive power: the power of the nation, in as far as it is employed in the execution of the decrees of judges against the opponents of justice, is not, ought not to be, cannot be, in the king’s hand. It must be in the hands of the judges themselves, each acting within the sphere of his jurisdiction, and under the controul of his superior, up to the supreme court of judicature, which acts under no other controul than that of the representatives of the nation. Suppose, in a settled state of things, a man ordered into custody in a regular way by a court of justice at Antibes or Perpignan, and rescued by a mob. Is justice to be at a stand till information has been transmitted to the king at Paris, and orders received from him for a party of militia or regulars to assist in the recapture? The king of England is, at this moment, a despot in comparison of the king of France; yet even the king of England is not to this purpose, nor to any purpose but that of systematic language, the executive magistrate. Every man almost who bears the name of a judge, as well as several who do not, may command for this purpose the whole power of the country within the limits of his jurisdiction. The chief-justice of England commands to this purpose the power of all England: citizens, militia, regulars, everything; even navy, I suppose, if there were occasion: the king cannot to this purpose command a single man. Charles II. ordered a man into custody, for what, had the order been issued by a judge, would have been deemed good cause: the order was adjudged illegal because it was the king’s. If an order signed by the king of England were to be delivered to a goaler anywhere to release a man under arrest for debt, would it be held legal? No certainly. But if justice must be executed without the king, and even in spite of the king, in what sense can his power be termed, to this purpose, the executive?

The truth is, that, in any intelligible sense of the word executive, he is not the executive power to any purpose. What is it that he executes? Not the decrees of the legislature, or those of the ministers of justice against internal enemies: those decrees, as we have just seen, are executed by others, without his intervention, and in spite of it. Not the decrees of the legislature against external adversaries: the legislature of one country does not make laws to be obeyed by the inhabitants of another; it does not make laws for enemies. There are no laws, then, for him to execute against enemies. In his hands, indeed, is placed the force destined to act against foreign enemies: in his hands is vested the administration of that force, in all its various branches. Say that it is in virtue of a law that he makes war against the enemy. He then executes that law in a certain sense if he obeys it. But how is the law, then, executed? only in as far as it is obeyed: but not in the sense in which a law is said to be executed upon or against those who withhold or refuse obedience. A man, by obeying a law requiring his obedience, without waiting for its being executed upon him for disobedience, may, in a certain sense, be said to execute the law: but does this render his obedience an exercise of executive power? If it does, every man is the executive power, and king and subject are the same thing. The king’s power, then, may be termed, if you please, the administrative power: but in what sense is it the executive?

Words in themselves are of no sort of consequence; but when they are made the foundation of practical institutions, then surely their propriety becomes worth investigation. Whether the practical institutions grounded on this verbal theory are right or wrong; and whether, if wrong, the error is material or otherwise, may be seen under the next article.

New Draught.—Art. II. The judges shall in general be elected by the persons subject to their jurisdiction; and that in manner hereinafter specified. (2)

Committee’s Draught.—Art. II. The judges shall be chosen by the proper subjects to their jurisdiction, in manner and form hereinafter to be mentioned. The judges shall be appointed by the king, upon a presentation to be made to him of two candidates chosen for each vacant office. (b)

Observations.—(2) (b) The share here given to the king in the choice of the ministers of justice, seems neither consistent with utility in the abstract, nor with received principles.

Were the matter never referred to the choice of the people at all, a choice made by the king, or rather in the king’s name, might pass for that which it might be presumed the people would have made, had it been put to them to make a choice. A presumption of that nature, whatever there may be in it, can under this arrangement no longer be held up. Two candidates are presented to the king by the people: one who, it is proved, is the most acceptable to them of the two; the other, who is the least acceptable. Shall the king’s minister have it in his power to force upon them the one whom they like least, depriving them of the one who has been declared to have their preference?

What is the good that is to result from so evil an example? As a means of preserving the people from an imprudent choice, the efficacy of any such option can be worth but little. If, in virtue of any cause whatsoever, a body of people are likely to make one foolish choice, what should hinder the same people from making two? Satisfy yourself, that the choice of the people in this instance ought not to outweigh that of the king’s ministers; and it must be by such arguments as ought to satisfy you, that, in the first instance at least, the appointment ought not to be left in any way to their choice. To be consistent, you should give the nomination to the king; and if you give the people anything, the option only to them. In this way the choice of the people is exposed to open contempt, and the security gained by it is not worth a straw. In the mode I have ventured to propose—(see Tit. III. § 1 & 5)—the highest security is given, and the respect due to the choice of the people preserved inviolate.

As to the person of the king, it is on all accounts plainly out of the question. I ask not what the king, but what the king’s minister for this department, can know about the character of two persons chosen by the people from among themselves, in a distant province, more than the people themselves know? Whatever judgment is to govern in this business, will have been formed, not by the king’s minister, not by the keeper of the seals, for example, but by some inostensible whisperer, some intriguant about the keeper, who has connexions in the province.

The most considerable effect such an arrangement seems likely to have, is that of strengthening ministerial influence. It will concern every candidate to be well at court: that, if first, he may not be rejected, and that, if last, he may be preferred. This property, howsoever it might recommend it in England, quadrates but ill with the principles that seem to be universally received in France. It is the essential property of command to be environed with a sphere of influence much more extensive than its own. The king must have command: therefore he cannot be divested of all influence. But the less influence he has as such, the better. Here we have a department without any command, consisting of nothing but influence. And this department is not so much as a remnant of the old system: it has not usage and antiquity to recommend it. The King of France is not in the use of having anything to do with the appointment to the provincial offices of justice: they have been always bought and sold: the seller and the buyer between them have chosen the buyer.

Justice, I have already said it, was the proper business of a feudal king. Justice, even the naming of the persons who shall administer it, is no fit business for a modern one. The military department—that department of which the measures depend so much for their success upon promptitude, and the complete combination of a vast multitude of scattered instruments—the military department is the proper, and only proper field of action for a monarch. It is essential that every branch of that department, everything that may be necessary to complete a body of force destined to act against an enemy, should be at the disposal of a single hand. War-office, ordnance-office, admiralty-board, navy-board, fortresses, dock-yards, even treasury-board, to the amount of the sums, and with restriction as to their application, provided by the delegates of the nation—everything of that sort, ought to be at his devotion. But we want no king, to sell us to foreign powers, to throw away our money in buying the useless and pernicious assistance of foreign powers, to make treaties in our name without our knowledge, to insult weaker nations, and dictate laws to them on pretence of mediation, or to plunge us into war before we have any suspicion of the cause. As little do we want a king at the Louvre or St. James’s, to tell us what persons are best deserving of our confidence in Northumberland or Provence.—When I search for the advantages expected from this power among the details of its application, my embarrassment, instead of being relieved is increased. Where the election is lodged in the hands of picked men, men thought worthy to be entrusted with the choice of the members of the administrative bodies, and of the sovereign legislature, or men considered as still more select, and still better entitled to confidence; the choice made by the people by these chosen electors is put, I find, under subjection to this over-ruling power. Where the election is thrown open to the lowest order of citizens, to those whose contributions do not amount to more than half a crown in the year, to those who are but the electors of the above-mentioned picked electors, the choice thus made is left without controul. Where ignorance is least apprehended, an expedient is employed for correcting the choice that may be made by ignorance: where ignorance is most apprehended, the corrective is withheld.

Nine sorts of courts are comprised in the institution, exclusive of the High National court constructed upon principles too peculiar to be brought here into the account. In five of these instances,* the appointment follows the general rule laid down by this article: in the other four the rule is departed from,† and the choice of the electors stands uncontrouled. Of these exceptions, the first that presents itself is that of the canton court, filled by a single judge, under the denomination of a judge of the peace. This example augments my embarrassment still further. Where the judges are to sit in bodies of five, ten, twenty, and six-and-thirty, each individual capable of making up for any deficiency that may be exhibited by the unfitness of another, the remedy provided against a bad choice is applied: where the person chosen is to act alone, the remedy is withheld. And to the court of this judge, as well as to the other courts, is given a portion of jurisdiction exempt from appeal.

Will it be said, that the class of causes in which the judge is exempted from controul is the very lowest only in the scale of importance?—causes, I mean, of not more than fifty livres value? This indeed is what I fear: for, according to my measure, among causes merely pecuniary, these are precisely those which stand highest in the scale. But of this under the next title.

The complication introduced by this system of royal controul, would, of itself, form a sufficient ground for rejecting it, unless some very unequivocal advantage could be shown to flow from it. Complication infects the general mode chalked out by the general article. Further complication results from the discordance between the instances in which the general rule is observed, and the instances, almost equally numerous, in which it is departed from. One useless law renders another necessary: for the provision, though redundant, is defective. Along with the choice of two candidates, a negative is unawares given upon both; and there it must continue, unless more laws are made to take it away. Should the minister dislike both the elected candidates, and withhold the royal option with or without pretence of hesitation, the impediment might last till they both died, for anything there is in this code to put an end to it.

The reasons, which plead in favour of the king’s suspensive power in matters of legislation, apply not in any degree to this share in the creation of judicial power. To exercise that suspensive power, would be to say to the agents of the nation—“I suspect your maturer judgment will be different on this head from your present opinion:” or “I suspect that, were the opinion of the people for whom you act to be known, it would be found different from yours.” To exercise this elective power, would be to say, “The wish of the people, I see, is to have Paul to judge them; but I, disregarding their wishes, choose they should have Peter.”

For this, as for every other act of kingly power, the committee, I suppose, mean to have some person or other responsible. But what minister would have the courage to take upon himself the responsibility of such a choice?

God forbid that for this or for anything else, I should accuse the committee of intentionally betraying the cause of the people. Policy should forbid, though truth did not, so ungenerous an imputation. Their offences against popularity are but peccadillos, in comparison with mine. To confess the truth, even in this very instance, they have gone farther on the popular side than perhaps, without the encouragement of their example, I should have ventured to have gone. I have been distressed for years what to do with the appointment of judges: whether to give it the people; or to give it (or as in England it would be, to continue it), to the king. It might be a matter of some difficulty to point out any specific mischief which has resulted in England from this part of the king’s prerogative as it stands at present. But on this point, neither do the past usages nor the present views of the two kingdoms afford any parallel. The king of England has always had the nomination of almost everything that goes by the name of a judge. In this line, except in an insignificant office or two, such as that of coroner, the people know not what it is to choose. They might choose for chief-justice an Hottentot, or an ourang-outang: and our profound constitutionalists, who worship precedent as the test of excellence, would expect no better choice. To us, a system of local judicature, distributing justice upon the spot, in all its branches, is new, not only in practice, but in imagination. With us, no man has yet been found bold enough to insinuate, that fifty pounds may be too high a price to pay for five shillings, or four hundred miles too far to go for it. While the trade of justice is in a manner confined to Westminster Hall, the king at St. James’s has not far to look in order to choose the dealers.

It is surely a bold experiment this of trusting the people at large with the choice of their judges: the boldest, perhaps, that ever was proposed on the popular side. My thoughts were divided betwixt the king and the representative assemblies. I could scarce think of looking so far down the pyramid, as to the body of the people. But now that the committee has given me courage to look the idea in the face, I have little fear of the success. My wish, however, is to see the experiment fairly tried, in its simplest form, and not clogged by a temperament in which I see the mischievous effects I have been stating, and in which I can descry no use.

What I accuse the committee of, is the instituting this fund of corruption, not for the sake of the king, not for the sake of ministers, but for the sake of a word: and I retract immediately if their own candour does not plead guilty to the charge. The king is the executive power: justice is a thing which requires to be executed; being a thing to be executed, it must be executed by him. Something at least he must be seen to do toward the execution of it: and this is the way in which his interference will do least mischief.

New Draught.—Art. III. No office conferring judicial power, or the exclusive privilege of ministering by particular services to the exercise of such power, shall be created by the sole authority of the king for any purpose, much less in order to be sold.

Committee’s Draught.—Art. III. No office conferring judicial power can henceforward, under any pretence, be created to be sold. (c)

Observations.—(3) (c) The addition of the passage distinguished in my draught by italics seems necessary to fulfil the intention of the committee. Jailors, clerks, bailiffs, criers, &c. are within the reason of the law; they are not within the words of the committee’s draught.

In condemning the venality of judicial offices, without limitation—consequently by whomsoever sold, on account of whomsoever, and on whatsoever terms—the committee goes beyond the mark, and ties the hand of the legislature, as far the hands of a legislature can be tied. In a paper on the Patriotic Auction, proposed under Tit. III. § 2, of my draught, as an expedient for saving something of the vast expense of so many judges’ salaries, preserving the right of election inviolate, I state what the real mischiefs of venality were upon the old plan, and show that mine stands clear of them.

New Draught.—Art. IV. Justice shall be administered gratis. Provision shall be made for the ministers of justice by salaries. All exaction, or acceptance of fees, by persons any way concerned in the administration of justice, is hereby declared illegal.

Art. V. All stamp duties or other duties upon law proceedings are hereby abolished: and all laws made to ensure the collection of such duties, are so far forth repealed. (4)

Committee’s Draught.—Art. IV. Justice shall be administered gratis, and appointments for the judges shall be provided to a sufficient amount, proportioned to the dignity of their stations, and the importance of their functions. (d)

Observations.—(4) (d) So much good has seldom been proposed in so few words. I have taken upon me to subjoin reasons for the measure, principally with a view to the country in which it will be scorned, but not altogether without an eye to that in which it will be crowned. If it be desirable that good laws be established, it is not altogether superfluous that it should be generally understood on what accounts and to what a degree they are so. Power gives existence to a law for the moment, but it is upon reason that it must depend for its stability. The discussion being thought too long for a note, forms a separate paper.

The concluding part of this article, as it stands in the committee’s draught, is rather a resolution than a law. It might be as well perhaps to omit it in this place, and add it to the string of resolutions with which this title concludes.

The concluding part of the fourth article in my draught, together with the fifth article, seemed necessary to give complete effect to the general provision, and place the intended extent of it beyond the reach of doubt.

If these taxes are abolished, a list of the laws therewith abolished should be subjoined. This is a sort of appendix that should be subjoined as soon as possible to every decree of the new legislation, as well in order to obviate doubts, as in order to prune off so much of the dead wood, and reduce the bulk of the body of the law.

New Draught.—Art. VI. The judges have no share in legislative power. Appointed for the express purpose of enforcing obedience to the laws, their duty is to be foremost in obedience. Any attempt on the part of a judge to frustrate or unnecessarily to retard the efficacy of what he understands to have been the decided meaning of the legislature, shall be punished with forfeiture of his office. (5)

Committee’s Draught.—Art. VI. The judicial power being subordinate to the legislative, the courts of justice shall not usurp any of the functions of the legislative body, nor hinder nor retard the execution of its decrees sanctioned by the king, on pain of forfeiture. (e)

Observations.—(5) (e) In these nine articles from the 6th to 15th inclusive, I have endeavoured to embrace the subject-matter which the committee seem to have had before their eyes, while occupied in framing the 1st, 6th, 7th, and 8th articles of their draught: but to a somewhat greater extent, and with some difference as to the means made use of.

Three objects seemed to require attention on this occasion: 1. The setting up a bar to usurpation of legislative authority on the part of the courts of justice: 2. The providing a remedy against inconveniences which might arise in cases unforeseen by the law from the too rigid and liberal execution of it: and 3. The settling a plan of correspondence, by means of which the legislature might put itself in possession of such means of judging of the conformity of the laws to their design, as the opportunities afforded to the judges by local situation and particular experience, must render them peculiarly well qualified to supply.

In the provision to be made for the first of these objects, some attention seemed necessary, in order to avoid throwing down, by a side wind, the whole fabric of what is sometimes called the unwritten law:—the collection of rules of law deduced upon occasion from the observation of the course taken by the courts of justice in their decisions. This bastard sort of law cannot, it is true, too soon be made to give place to the legitimate; but there must be some law in the country in the meantime. A judge, in as far as his decision in one case serves as a rule in a subsequent one, is in effect a legislator: and a large proportion of what goes by the name, and has the effect of law, has, in France as well as England, no other origin than this. In refusing to these new judges all share in legislation, it may be necessary not to extend the stigma of reprobation to the unwritten or judiciary law, the result of those acts of indirect legislation, which have been exercised by their predecessors.

In virtue of decrees already passed by the assembly, articles of law, deemed other than constitutional ones, are presented to the king for his consent, and sanctioned by him. Articles of law deemed constitutional, are declared not to require the king’s sanction. In this very draught of the committee, are contained many which I suppose will be deemed to come under the latter denomination. A judge disregards an article of constitutional law, not sanctioned by the king—is it the design of this article to leave him at liberty so to do? certainly not: then why confine the obligation to the decrees “sanctioned by the king?”

By the word retard, employed as here, without any modification annexed to it, I doubt the committee will be found to have gone beside the mark in some degree, to have put the courts of justice into an embarrassing situation, and to have counteracted their own views. The retardation they meant to condemn was, I suppose, that which would be the consequence of an address to the people, or, what might come nearly to the same thing, an address to the legislature, circulated among the people, pointing out a law newly issued, as unfit, on some account or other, for execution. But, to take time to consider of the true meaning of a law, when the execution of it is called for by an action grounded upon it, is also to retard the execution of it. This is what can hardly, I think, have been meant to be included under the censure; and yet for this, according to the letter of the provision, a judge would stand liable to forfeiture.

New Draught.—Art. VII. But rules of law, derivable from decrees of judges and customs of courts in times past, shall still be in force, so long as they remain unsuperseded by acts of the legislature.

Committee’s Draught.—Art. VII. The courts of justice shall be bound to transcribe purely and simply upon their registers, the laws which shall be sent to them, within three days after they have received them, and to publish them within eight days, on pain of forfeiture. (f)

Observations.—(f) The declared object of this provision is to prevent the new courts of justice from exercising, as some of the old ones did, a negative upon the acts of the legislature; the tendency of it, as far as it tends to anything, is to enable them to assume this negative. Require that such or such a man shall do so and so, before an instrument of any kind shall begin to have validity, you give that man, how inconsiderable soever in other respects, a virtual negative upon the power exercised by that instrument. Upon the requisition made in the present instance, the construction that will naturally be put is, that till the act required be performed, the validity of a law is not to commence; for such, it seems, has been the case hitherto in France.

A decree will, upon this plan, in every one of several thousand judicial territories, begin to be in force at so many different periods, according to the length of the instrument, and the probity or improbity, the diligence or negligence, the good or bad health, of various sets of persons:—of the judge, of the register of the court, and of the copying clerk by whom, under the immediate inspection of the register, the business is to be done.

Take a written copy of a printed paper? Why? Of what use can it be when done? And this in every one of so many thousand courts! To what purpose this enormity of expense? Wherein has the art of printing offended, that justice is to disdain to avail herself of its assistance?

At what period, too, is the obligation to obedience to commence? At that of the publication, I suppose. From what period, then, is the week to be reckoned, at the end of which the publication is to take place?—that of the receipt of the original, or that of the completion of the copy? From the latter it should be, if the copying were of any use. What if a single decree amount to a large volume, as may be the case with the promised penal code, and the promised code of procedure? Will the judges, with all their power, find a man who shall copy it into the register-book in eight days?

Oh, but in France a law is no law until it is registered: nor anywhere but where it is registered: and to register a law is to copy it into a register-book. And so, because laws made by a despot were to be put out to copy, that parliaments might have time to see whether there was nothing to find fault with, no loop-hole at which they might steal in their negative in legislation, laws are still to be put out to copy, now that there are no despots, and no parliaments.

There was a time when this copying business was of real use.—Why? Because there was a time when printing was unknown. It is the delight of lawyers to go on plodding in paths which reason has never visited, or having visited, has deserted. But is it for the legislature to catch this propensity, and convert it into obligation?

Oh, but printed copies of laws may be forged—they have been forged. Standard instruments, therefore, are necessary to detect the forgery. True: but what written copy can be so good a standard as the printed original? The true standard at each court of justice is the printed paper which the judge of the court receives from the proper officer at Paris. Let each sheet of that copy, or, to guard against interpolated leaves, each leaf, be numbered and signed by him, cote et paragraphe, in testimony of its authenticity. This will be the work of a few minutes: and by this work of a few minutes, the purposes will be better answered than by the proposed work of as many days.

One would think, from this article, that a sort of tacit persuasion had got possession of men’s minds, that laws, after they had passed the hands of the legislator, could not begin to take effect till after somewhat or other had been done for that purpose by other people. The king, that he may have something to do in the business, is, besides his previous consent or acceptance to the law while in manuscript, to take charge of the printed copies for the purpose of dispersing them: as if a clerk to the assembly could not as well put a packet into the post, as a clerk in an office under the king. The courts of justice, that they may have something to do in the business, are to set clerks to work upon the useless operation of copying a printed paper.

The separation of the instrument containing the king’s sanction, from that containing the decree of assembly to which it applies, is attended with two bad effects:—it gives ministers an indirect and insidious negative, in addition to the one avowedly belonging to the king: and it loads the text of the law with the rubbish of letters-patent.

Were the decree to run in the joint names of the king and the assembly, as in the British statutes, and were the king’s sanction given by his seal and signature applied to the original instrument of the decree, that instrument never quitting the custody of the assembly, and the business of circulation committed to the assembly’s printer, or some other person under their immediate authority, a deal of chicane, and negligence, and anxiety, and time, and money, and paper, might be saved.

It is highly necessary that at all times, and in particular, immediately after the passing of a new law, means should be used for impressing the contents upon the minds of those whose conduct is to be governed by it: and the anxiety testified by the committee on this head is highly laudable. But what measure so simple or so effectual, as to send by the post a copy to the ecclesiastical minister of every parish, under a general order to read it to the congregation the next church-day, or the two next church-days, au prone, immediately after divine service?

In England, the business of promulgation is a very simple affair. In the body of every act of parliament, a day is specified in which it shall be considered as being in force. Nothing is done to circulate it by king, or judges, or any body else: but a copy is given to the king’s printing-office, where it is printed in an obsolete obscure type, and inconvenient folio form, and sold, as may be expected under a monopoly, at a dear price; and there it lies for the use of any one that has money to spare to buy it, and thinks it worth his while to do so. Every man is then supposed to know, and to understand the law: juries excepted, who, when they have taken upon them to pronounce a man guilty of having violated the law, are held not to have decided upon the law, it being impossible they should understand it.

New Draught.—Art. VIII. No judge has any power to make general regulations; not even relative to the mode of procedure in his own court. (6)

Art. IX.—But should any case arise before a judge, in respect of which it appears to him that the legislature, had the same been in their contemplation, would have made a provision different from that which the letter of the law imports, he is hereby authorised, and even required, so to deal therein as it appears to him that the legislature would have willed him to do, had such case been in their contemplation: taking such measures withal, whether by exacting security, or sequestration of goods or persons, or otherwise, as shall be necessary to prevent the happening of any irremediable mischief in either event, whether the legislature abide by the law, or alter it.*

Art. X.—The suspensive power hereby given extends even to such laws and other acts of authority as shall have issued from the National Assembly, or from any subordinate authority, at any period posterior to that of the convocation of the present National Assembly: and it may be exercised with still less reserve with regard to such former laws and rules of law, as, though not expressly abolished, may appear unconformable to the principles manifested by the National Assembly, and especially to those contained in the declaration of rights.

Art. XI.—Provided always that the judge, as soon as possible after the case calling for the exercise of such suspensive power has presented itself to his notice, shall make report thereof to the National Assembly.

Art. XII.—Copies of such report shall also be sent to the several courts of justice to which his court is subordinate: so that the dispatching of the original report be not delayed on account of the dispatching of such copies. (7.)

Art. XIII.—In such report shall be contained—

1. A statement of the matter of fact which has happened to call for the execution of the law.

2. A quotation, with proper references, of the passage of law in question.

3. A statement of the mischief which in his conception would ensue, were the letter of the law to be observed.

4. A statement of the course provisionally taken by him for avoidance of such mischief, in pursuance of the power given to him by Art. IX.

5. To such report he is at liberty, and is hereby invited, to subjoin a note of such alteration in the text of the law, as appears to him most proper for guarding against the mischief in question for the future; whether such alteration consist in defalcation, addition, or substitution; pointing out the very words in which the passage in question, after the alteration suggested, ought to stand. (8)

Art. XIV.—The true and only proper object of inquiry, in the exercise of this suspensive power, as far as it regards laws posterior to the convocation of the present National Assembly, is, not what ought to have been the intention of the legislature in the case in question, but only what would have been so, had the same been present to their view.

Art. XV.—All judges and other ministers of justice are also hereby invited to make report, at any time, of any inconvenience which appears to them likely to ensue from the literal execution of any article of law, even although no case calling for such execution shall have yet arisen: as also to propose questions relative to the import of any passage in the law, which may have appeared to them ambiguous or obscure.

Committee’s Draught.—Art. VIII. The courts of justice have no power to make regulations; they shall address their representations to the legislative body as often as they shall deem it necessary either to interpret the doubtful signification of a law, or to enact a new one. (g)

Observations.—(6) (g) The committee, I observe, in the general interdiction passed upon regulations made by judges, makes no exception in favour of regulations relative to the mode of procedure, made by those magistrates, each in his own court; and it seems to have done very right. Were this permitted, the modes of practice in the different courts would gradually diverge; diversities would gain ground in each, and complication in the whole. Judges, too, from caprice, or regard to their own ease, might clog the system of procedure with unnecessary and unbending restrictions and obligations.

In England, courts of justice, at least the more considerable ones, have always holden this power within their competence; though of late they have exercised it but sparingly. The public, as things are circumstanced in England, four or five great courts exercising joint and immediate jurisdiction over the whole country, owes them little thanks for this reserve. The practice, as to the main part of it, has been settled somehow or other between the subordinate officers and the attornies; nobody knows when, nor by whom, nor how, nor for what reason. It is accordingly, in the language of lawyers, like everything else that has been done by lawyers, “the perfection of reason;” that is, different in all the different courts, repugnant in every one of them to the ends of justice, but extremely convenient, and not a little beneficial to all parties concerned, except the suitors.

The phraseology of the committee’s article, where it speaks of the power of interpretation, seems not to be altogether so clear as one would wish to find it.

Interpreting the law, is what, in a certain sense, a judge, as well as everybody else, must always do, as often as the authority of it is appealed to, and a man is called upon to act accordingly: Interpreting the doubtful signification of the law is what he cannot do but where the signification of it is doubtful. So long as the signification of a law appears doubtful to a man, he can neither interpret it himself, nor avoid thinking it necessary that somebody else should. In this case, if it wears the same appearance in the eyes of the legislature for the time being, the best thing they can do is, not to give a separate interpretation of the law, but to revoke it, and promulgate a new one, which shall stand clear of the difficulty. As the law cannot compress what it has to say into too small a compass, substitution and even defalcation, wheresoever it will equally well express the meaning, is much better than addition.

Interpretation, when spoken of in regard to any species of composition but a law, means attributing to it the sense of which a man really conceives it to be expressive. Interpretation in France, it seems, as well as in other countries where the law language on this head is taken from the old Roman law, means passing another law relative to the same subject-matter, with or without the deceit of pretending to attribute to the former a sense which a man is conscious does not belong to it. In the former sense, that is, in the original and natural sense, every subject not only has a right to interpret the law, but is forced to do so, in as far as he is bound to square his conduct by it: in the technical sense, if the right of interpreting the law belongs to any man, that man is a legislator; and a legislator of equal authority with him who made it.

* An example, quoted by Puffendorf and other writers, of a law actually established in some Italian state, will serve to make this distinction clear, and at the same time to manifest the necessity of such a suspensive power as is proposed:—

Whosoever draws blood in the streets shall be put to death.

I put three cases upon this law:—

1. A surgeon, seeing a man drop down in a street in a fit of apoplexy, lets him blood and saves his life. Ought he for this to lose his own? Yet such must be the inevitable consequence of a strict execution of the letter of the law.

2. A man, waylaying his adversary, sets upon him in a street, and strangles him without shedding a drop of blood.

3. A man, waylaying his adversary, and meeting with him in the street, draws blood from him, by giving him a stab, which however does not prove a mortal one.

The judge possesses a suspensive power given him in the words proposed in my draught: What courses ought he respectively to take in the above three cases?

1. In the case of the surgeon, he ought to collect all the evidence, staying judgment till after the decision given by the legislature in answer to the report; and, in the meantime, taking such security as appears to him sufficient for the defendant’s forthcoming, in order to abide the event of such decision.

2. In the case of the strangler, he ought to proceed in the same manner: but in this case, the security required would naturally be stronger than in the other.

3. In the case of the stabber, he ought to proceed to sentence and execution. He might indeed think it improper that a bare attempt to kill, or perhaps merely to wound, with a special care not to kill, should receive as heavy a punishment as actual murder. But this case is one which the legislature, it is plain, must have had in contemplation, and they have decided otherwise. The two other cases it seems equally plain they had not in contemplation. In these cases, then, to exercise the suspensive power, would be only to seek out, and minister to the intention of the legislature: in the third case, it would be to censure and controul it.

Put now the same three cases, and let the article as it stands in the committee’s draught be the law. What is the consequence? Let justice go on in its ordinary train, the benevolent surgeon must be put to death, and the murderous assassin acquitted, before any answer arrives from the legislature. A conscientious and courageous judge might perhaps take upon him to exercise a suspensive power in two such cases, though not given him by the law. Perhaps so: but all judges may not be conscientious: nor are all conscientious judges courageous: and whatever good quality this or that judge may chance to possess, affords no apology for the defectiveness of a law. Whatever power the law means to permit, it ought openly to allow. Connivance pre-supposes and establishes arbitrary power.

No body of laws ever yet made its appearance anywhere, which does not afford ample field for such a suspensive power. At the commencement of a new order of things, such as that which is establishing in France, the calls for such a power must be particularly abundant. The new laws, being made piecemeal, must leave a multitude of cases unforeseen and unprovided for: and till the new system is completed, the ambiguous state of the old body, half living, half dead, must increase the multitude of doubts and difficulties.

A suspensive power thus given may possibly be productive of some abuse. It is just possible. But without it, abuse is certain and universal. Distress to individuals, and that to an amount not to be conceived: open disobedience on the part of the judges to the legislature; and that in the infancy of its power: such is the only alternative. Shall disobedience be foreseen and wilfully allowed? Thus to allow it, is to invite it.

Reports of this sort pouring in upon the legislature from all the courts will take up a good deal of its time. Probably: but the inconvenience cannot be avoided but at the expense of a worse: nor is the door which the committee’s article opens to it a hair’s breadth less wide. Both laws expose the feelings of the legislature to be wounded by tales of distress. The difference is this: the one remedies the mischief, and then tells of it; the other tells of it without remedying it.

Oh but, says the committee, the representations you speak of are not those which we mean to allow. When we speak of judges, we think of our old parliaments. When was it the parliament used to make their representations, if they chose to make any? When? why, before they registered it, to be sure. When they had registered it, they had passed it; it was then their law: do you think they would have found fault with their own law? No, no: our representations have nothing to do with yours. Have not they, say I? So much the worse. Observe the task you have given to your judges. What the legislator professes to understand, they are to teach him: what he wants to know, but can know from nobody but them, they are to keep to themselves. They are to speak of everything they fancy, and of nothing that they see: they are to report from imagination, and not from evidence.

(7) A plan for giving to the conveyance by the post, the exactness requisite for this and all other branches of judiciary correspondence, is contained in the draught of a code of procedure, designed to form a sequel to the present publication.

(8) All human laws will have defects: all new ones more particularly: defects to be remedied must be pointed out by somebody: and who so proper to point them out as the persons engaged by duty in the study of them, and by practice in the observation of the incidents that bring them into notice? No legislator can as such possess opportunities of this nature equal to those which must present themselves to every judge.

In England, no invitation of this sort was ever given to the judges. Those magistrates, however, have always had the right of making representations of this sort, since, under the name of petitions, it is no more than what all subjects in general have enjoyed. No nation hitherto whose laws have such large features of excellence in them as those of England: yet none, perhaps, whose laws are more abundant in particular and very gross defects. No judge can well sit on the bench for a day together without being witness to numerous exemplifications of them. In one of the houses of legislature, all the judges have always had seats, and at all times some of them have had votes. Yet who ever heard of a representation of this sort spontaneously given by a judge to the legislature? and how many instances do the annals of parliament afford of bills brought in by law-lords for the amendment of the law? Is a bill of this sort attempted to be stole in by an unlearned hand? learned eyes are not wanting for spying out the defects—not of the law, but of the bill which seeks to remedy it: and scorn is the reward which public spirit gets for its temerity.

Of the very few judges who in our time have betrayed any symptoms of a suspicion that the law could be in any respect better than it is, or of a wish to see it so, the most eminent have gone to work, as if their object were to render reformation odious. Reformation of the law, by the commissioned legislator, is indeed, what Lord Bacon styles it, an heroic work; by the judge it is usurpation, despotism, and confusion.

Provisions to the effect above mentioned would be insufficient to the end, without some others, of which, as not belonging properly to the present title, I shall content myself here with giving a general intimation.

Provisions for the elucidation and improvement of the laws by the help of lights, suggested by persons other than judges; in a word, by the citizens at large:—

1. General liberty to any subject to make communications of the same sort which the judges are invited to make.

2. Special liberty to persons wishing to engage in a contract of any kind, whether of the nature of a pact or of a conveyance, of the validity or invalidity of which no declaration sufficiently explicit is given by the law, to propose questions to the legislature relative to such validity. Questions of this kind might pass through the hands of the several ranks of judges, who, if they thought proper, might adopt them by their signature, and might even on certain conditions be authorised and required to give a decision, which should be binding at the end of a certain time, if not annulled by the legislature.

In England, wills and conveyances are made, agreements entered into, on which the fortune and condition in life of families are built, and afterwards, at ten, or twenty, or thirty years end, comes an ex post facto decision, which overthrows everything, and reduces them to beggary. Courts of justice can take no cognizance of a question that does not come before them in the course of a cause, and if an amicable cause were instituted for the sake of getting a decision on a question, before the event that called for it had taken place, it would be a crime punishable by law. Multitudes are thus doomed to inevitable ruin, for the crime of not knowing a judge’s opinion, some ten or twenty years before the question had ever entered into his head. This confusion and injustice is of the very essence of what in England is called common law—that many-headed monster, which, not capable of thinking of anything till after it has happened, nor then rationally, pretends to have predetermined everything. Nebuchadnezzar put men to death for not finding a meaning for his dreams: but the dreams were at least dreamt first, and duly notified. English judges put men to death very coolly for not having been able to interpret their dreams, and that before they were so much as dreamt.

The rescripts produced by the questions put by Roman citizens to Roman emperors, gave nothing but a load of rubbish to the law. Fabricated in the dark, by some unknown scribe of a despotic sovereign, they remain in the rude state in which they were emitted, without being melted down into the text of any general law. How should they have been? No such law was in existence. Such will not be the fruit of questions put by the free citizens of France to their enlightened legislature.

3. A committee to receive communications of this sort, to publish such as they think worth publishing, and to propose to the assembly any such alterations as they think proper to be made in the text of the laws, in consequence. Right given to the author of any rejected communication to have it printed and subjoined in form of an appendix to the authoritative collection, upon depositing the expense.

Other provisions relative to the elucidation, improvement, and preservation of the text of the laws, diverge too far from the subject to be mentioned here.

New Draught.—Art. XVI. The subordinate representative assemblies, in the exercise of the powers of administration, and subordinate legislation, lodged in their hands by the supreme legislature, are [not?] accountable to the judicial power. The members of them cannot therefore be punished, or cited to appear before it, for any act done by them in their quality of members. Obedience to an act of any such assembly, acting within the sphere of the authority committed to it by the sovereign legislature, is to be enforced by the courts of justice in like manner as to an act of the National Assembly itself. But for that purpose, it is necessary that the courts of justice should take cognizance, upon every occasion, of the question, whether in such instance the subordinate assembly has or has not confined itself within its proper sphere, and decide accordingly upon the validity of its act. (9)

Committee’s Draught.—Art. IX. As the judicial power is distinct, and ought to be kept separate from the power of administration, the courts of justice have no power to take any sort of part in matters of administration, nor to give any sort of disturbance to the operations of the administrative bodies, nor summon before them the members thereof, for matters done in the exercise of their functions, on pain of forfeiture. (h)

Observations.—(9) (h) In speaking of the subordinate representative bodies, care, I observe, seems to be taken, to speak of their functions as confined to the head of administration, without any share in legislation. If administration is understood to include subordinate legislation, the term may pass: if not, the language here held relative to the functions of these bodies is contradicted by the functions themselves. See Decret concernant les Municipalités. Under certain restrictions they are to possess powers of taxation, and the municipal governments in towns are to have power of establishing regulations of police, which as such must frequently be binding upon all the citizens. If this be not legislation, it will be difficult to say what is. All that can be said to distinguish it from the sort of legislation exercised by the National Assembly is, that the one is subordinate, the other supreme: and this surely is sufficient. The acts of the one, if valid, and while valid, are as much laws as those of the other: the only difference is, that the laws of those subordinate bodies are liable to be stopped in their formation, or overthrown when formed, by the acts of the National Assembly: while the acts of the National Assembly can be retarded only by the king, and can be overthrown by nobody without the concurrence of the National Assembly itself. If legislation, merely by being subordinate, ceases to be legislation, judicature, by being subordinate, should cease to be judicature. It is a sad error thus to confound legislation with supremacy—the nature of the function with the dependence or independence of him who exercises it. Names are certainly of little importance, so long as men are agreed about the things signified by them: but the danger is here, lest, when these representative bodies exercise, as they must do on pain of inutility, some act of legislation, somebody should start up and say—“No, this is what you have no right to do; for this is legislation: whereas nothing is yours but administration.”

I have some doubt about the propriety of this word disturb, [troubler,] and whether the memory of past grievances may not here have carried the committee rather beyond the mark. A provincial assembly may say to the court of judicature sitting in the same town. If you adjudge our acts void, you disturb us in our operations: yet this is what the court cannot well avoid, if it judges the act not conformable to the powers given by the sovereign legislature; and it is difficult to say what the harm of this would be, or, if there were any, what could be the remedy.

In England, the meanest court that sits would take upon itself to judge whether any law (by-law the word here is) of a corporation that came before it, was valid or no: and the Court of King’s Bench, a court of mere judicature, issues orders (mandamus’s) after hearing of parties, to the local legislatures to exercise their functions, and even punishes the members in case of their going beyond them: and no inconvenience ever happens from this power. The Court of King’s Bench, it is true, is not a French parliament, but neither will these new-created courts of justice be so. Refuse them legislation in as positive terms as you please: but if you refuse them judicature in any case, you must lodge it somewhere else: and where can it be lodged with less danger and inconvenience? Whatever judicial power you take away from the ordinary courts, you must institute an extraordinary court, a tribunal of exception, to give it to: and every separate court set up to exercise a fragment of power, that can as well be exercised without it, introduces unnecessary complication, and becomes a grievance.

New Draught.—Art. XVII. The judges, elected as in manner hereafter ordained, shall enjoy their offices for life, unless divested thereof in manner hereinafter specified. (10)

Committee’s Draught.—Art. X. The judges, such of them as, having been lawfully elected, shall have been instituted in virtue of a commission from the king, shall be irremoveable; nor can they be deprived of their places but in case of forfeiture, and after judgment thereof. (i)

Observations.—(10) (i) My reasons for proposing amotion in certain cases without forfeiture of salary, or of re-eligibility, being connected with various provisions of detail, will stand more commodiously under Tit. III. Of Judges.

New Draught.—Art. XVIII. Judicial proceedings, from the first step to the last inclusive, shall, in all cases but the secret ones hereinafter specified, be carried on with the utmost degree of publicity possible. (11)

Committee’s Draught.—Art. XI. Judgments, in what cause and in what form soever given, either upon argument, or upon the report and opinion of a judge-reporter, shall be given publicly: the examinations taken in the course of the procedure shall also be publicly taken in criminal causes. In all cases, the parties, or their defenders, shall have a right to be heard, and to make summary observations upon the opinion of the judge-reporter. (k)

Observations.—(11) (k) Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial. Under the auspices of publicity, the cause in the court of law, and the appeal to the court of public opinion, are going on at the same time. So many bystanders as an unrighteous judge, or rather a judge who would otherwise be unrighteous, beholds attending in his court, so many witnesses he sees of his unrighteousness, so many condemning judges, so many ready executioners, and so many industrious proclaimers of his sentence. By publicity, the court of law, to which his judgment is appealed from, is secured against any want of evidence of his guilt. It is through publicity alone that justice becomes the mother of security. By publicity, the temple of justice is converted into a school of the first order, where the most important branches of morality are enforced, by the most impressive means:—into a theatre, where the sports of the imagination give place to the more interesting exhibitions of real life.

Nor is publicity less auspicious to the veracity of the witness, than to the probity of the judge. Environed as he sees himself by a thousand eyes, contradiction, should be hazard a false tale, will seem ready to rise up in opposition to it from a thousand mouths. Many a known face, and every unknown countenance, presents to him a possible source of detection, from whence the truth he is struggling to suppress may through some unsuspected connexion burst forth to his confusion.

Without publicity, all other checks are fruitless: in comparison of publicity, all other checks are of small account. It is to publicity, more than to everything else put together, that the English system of procedure owes its being the least bad system as yet extant, instead of being the worst. It is for want of this essential principle, more than anything else, that the well-meant labours of Frederick and Catherine in the field of justice have fallen so far short of the mark at which they aimed. Division and subordination of judicial powers are no otherwise a guard to probity, than in as far as the chance of disagreement and altercation presents a faint chance of occasional publicity. Appeals without publicity serve only to lengthen the dull and useless course of despotism, procrastination, precipitation, caprice, and negligence.

If publicity is necessary in any one cause, so is it in every other. For what is that cause in which judges and witnesses are not liable to prevaricate? Give a judge any sort of power, penal or civil, which he is to be allowed to exercise without its being possible to know on what grounds, he may exercise it on whatever grounds he pleases, or without any grounds at all. It was upon these terms that the tribunal, erected by I forget what German emperor, under the name of the Vehmic Council, exercised the power of life and death: the judges of that council became as formidable as the triumvirs at the time of their proscriptions. The Inquisition possess it at present, upon terms not very dissimilar, in Spain and Portugal. The lowest power, penal or civil, you can give a judge, is that over men’s fortunes: the power of levying money on an individual, whether on the score of punishment, or in satisfaction of a claim of right on the part of another individual. Give a judge this power without controul, though it extend not beyond the amount of a shilling, you may make him absolute master of men’s properties, and by that means, at the long run, of their very lives: lower the sum, all the security you gain is the putting him to the trouble of so many more decrees before he can effect his purpose.

But, essential as it is that nothing should ever pass in justice which it should be in the power of the judge, or of any one, ultimately to conceal, it is not by any means so that every incident should be made known at the very instant of its taking place. If, then, in any case, things should be so circumstanced, that the unrestrained publication of one truth might give facilities for the suppression of another, a temporary veil might be thrown over that part of the proceedings, without any infraction of the general principle. On this consideration is grounded one division of the class of secret cases as laid down in Tit. XIII:—preliminary examinations in criminal causes and others, in which there appears ground for suspecting a plan of concerted falsehood.

Necessary again as it is that nothing should ever pass in justice which it should not be in the power of every one who had an interest in bringing it to light, to bring to light if he thought proper, it is not so that anything should be brought to light, the disclosure of which would be prejudicial to some and beneficial to nobody. It is on this consideration that I ground the three other divisions of the class of secret cases: causes to be kept secret for the sake of the peace and honour of families; causes to be kept secret for the sake of decency; and incidental inquiries to be kept secret out of tenderness to pecuniary reputation.

A word now as to the committee’s draught:

And is it then only in criminal matters that the proceedings previous to judgment are to be public according to their plan? And is it only the ceremony of pronouncing judgment that is to be public in such cases as are termed civil? But on what possible ground admit publicity in the one case, and reject it in the other? Do the terms civil and criminal indicate any fixed line of separation between the classes they are meant to distinguish?—do they indicate so much as the comparative importance of the cases thus classed? May not four or five livres be the stake in a criminal cause, while four or five millions, or liberty, is at stake upon a civil one?

As to the appendage about the right of being heard—(a provision very distant in its import from that contained in the main article)—I know not very well what to make of it. Take it according to the letter, it seems to put a negative upon all provisionary orders obtained ex parte in the course of a cause, as well as upon provisionary sentences of condemnation against absconding criminals. These usages, however, have nothing repugnant in them to the general right of not being condemned unheard—a right surely of importance enough to demand an article to itself. In the concluding part of the sentence, the privilege of the suitor seems to lose more by the implication than it gains by the express terms.

The opinion of the judge-reporter is here spoken of in the singular number as one discourse, embracing, as it should seem, the whole body of the evidence that has been collected by him. If the observations here allowed to be made by the parties are to wait till the cause has got this length, that is, till the examination is closed and the witnesses are gone home, complaint is stifled, I cannot imagine why, till the remedy is out of reach. A witness, suppose, is rejected, or liberty refused of putting a question to him which is thought necessary: are the parties or their counsel to sit by and see this, without the liberty of being heard against it?

New Draught.—Art. XIX. Every subject has a right to plead his own cause, in every stage, and before every court, as well by word of mouth as in writing; and as well by himself, as by the mouth or hand of any person of his choice, not being specially debarred by law. (12)

Art. XX.—All monopoly of the right of selling advice or service in matters of law (saving provisionally the profession of a notary) is abolished. Any advocate may practise in the capacity of an attorney; any attorney in the capacity of an advocate; and any man, not specially debarred, in the capacity of either. (13)

Committee’s Draught.—Art. XII. Every subject shall have a right to plead his own cause, as well [viva voce] upon a hearing, as in writing. (l)

Observations.—(12)(l) The right of pleading one’s own cause by one’s own mouth, or one’s own hand, the committee have established: the right of pleading one’s cause by the mouth or the hand of a friend of one’s own free choice, they have not established. If they have done right in what they have granted, as I contend they have, they have done wrong in what they have refused. Both rights stand upon the same basis: but if the violation of either of them be a grievance, it is that of the latter that is the more cruel grievance.

The right of pleading one’s own cause in one’s own person, and without the obligation of making use of forced assistance, is of all rights one of those which has the best pretensions to be considered as a natural and indefeasible one. To refuse a man the right of speaking in his own behalf, is to condemn him unheard—to condemn unheard, not a fugitive, but a man who is on the spot demanding to be heard. To render a man’s fate dependent upon the endeavours of an assistant, whom if left at liberty he would not choose, is still to condemn him unheard; it is adding mockery to injustice. To compel him withal to pay an assistant thus forced upon him, is adding extortion to mockery and injustice. The worst of all taxes, as I show elsewhere, and the most cruel of all oppressions, is the tax upon law-proceedings. The compulsion here in question carries with it all the oppression and iniquity of a tax upon law-proceedings, without any of the use. It is, to a tax upon law-proceedings, what a forced reduction of the rate of interest is, to a tax to the same amount on money lent at interest. It is a tax upon law-proceedings with this addition—that the produce, instead of being carried into the public treasury, to be applied to the public service, is to be left in the hands of the collector, to be applied to his own use.

The right of accepting, for the purpose in question, the assistance of whatever friend may be disposed to furnish it, stands upon the same basis as the right of pleading on one’s own behalf. Without the latter right, the former would lay all those who are most helpless at the mercy of all those who are most able to manage their own cause. It would condemn unheard, or put into a situation as bad as that of condemnation without hearing, the weak in intellect, the raw youth, the bashful maiden, and the timorous woman; the sick, the unavoidably absent, and the dying. It would entail a peculiar hardship upon those who have peculiar claims to favour and indulgence.

Even to men possessed of the ordinary measure of assurance and intelligence, it might be difficult to say which of the two rights ought to be deemed most valuable. Few must they be, who in the whole circle of their private friends may not upon occasion be able to find some one or other better able than even themselves to do justice to their own cause. Though in a man’s own cause, the chances are greatly in favour of his superior fitness in this respect, in comparison with any other single man taken at random, yet the odds of the field against one may surely make up the difference.

(13) The provisions exhibited in this article are no more than the undeniable consequences of, if they are not already contained in, those of the preceding article. If every man may be his own advocate, and any man the advocate of any other, there is an end of the monopoly possessed by advocates. But if any man may appear and speak in behalf of any man, it would be absurd indeed to say that he should not appear without speaking. An attorney is one, whom for a certain purpose, a man puts in his place: shall it be said that a man shall not put himself in his own place? As to the rest, the free choice of an attorney stands upon at least as favourable ground as that of an advocate.

One very important, and very beneficial consequence of the abolition of the whole monopoly, will be the throwing down the legal partition which separates the two main branches of it. It is in a very few, out of the whole number of causes, that it can be any advantage to the suitor that the two functions should be exercised by different persons: and in all but those very few, the separation of them is equally oppressive to the suitor, and repugnant to the interests of truth and justice.

This I shall take occasion to demonstrate at large in a separate paper. Treading everywhere in the steps of the committee, I have inserted thus much here, in order to show that they have acted right in going thus far, but wrong and inconsistently in not going a step farther. This is the place which they have fixed for great and fundamental principles. Advantages of detail, resulting from particular applications of those principles, belong to a subsequent stage.

As to the word provisionally, applied to the case of notaries, I inserted it not with any view of advantage to be had by abolishing that branch of the monopoly, but only as a warning against the prejudging so much of the question as concerns their case. Their branch stands upon very different ground from that of the two others. It does not contribute in any shape towards either the denial or perversion of justice. The functions belonging to this purer branch are two:—the penning of contracts and other acts; and the furnishing evidence of their authenticity by attestation. To determine the question respecting notaries, would be to determine the question respecting register-offices: for in respect to so much as concerns attestation, the functions of notaries and those of register-offices coincide.

The distinction here spoken of exists no longer in England: the notary, formerly styled scrivener, possessing no monopoly as against attornies, has been swallowed up in the attorney.

In the Prussian dominions, by a regulation of not many years standing, all professional advocates are put to silence: pensioned advocates, appointed by the king, being given to the suitors in their room. This is what in the language of despotism, is styled reform. To obviate the inconveniences of a loose monopoly, it establishes a close one.

New Draught.—Art. XXI. In every suit, civil as well as penal, both parties shall attend in person at the commencement of the cause, in presence of each other and of the judge: unless in as far as they may stand excused by special reasons, in manner hereinafter specified; and so from time to time during the continuance of the cause: there to depose, and to be interrogated, at any time, they or their representatives, each on the part of the other, in the same manner as witnesses. (14)

Observations.—(14) This is but one feature, though that certainly a capital one, in the system of natural or domestic procedure, which I adopt in all its points: all technical ones being absurd and pernicious, as I shall show in due time, in proportion as they depart from it. I introduce the article here, partly as having an intimate connexion with that for the abolition of the monopoly possessed by lawyers, partly for the occasion I shall have to build upon it.

It is not enough that suitors be permitted to attend upon their own business; they must be bound to do so, at least at the outset, saving such exceptions as particular necessities may suggest,—a topic of detail not worth discussing here.

When the parties are brought face to face, at the outset of a cause, in presence of the judge, both speaking upon oath, upon the same footing as witnesses, the following advantages are the natural result of such a meeting:—

1. No cause, that is not carried on bonâ fide on both sides, can well go any farther: the suspicions entertained, by each of each, being reciprocally communicated, are either removed or converted into certainty, and the plan of fraud and treachery, whatever it be, being rendered hopeless, is abandoned.

2. The same thing may be said with regard to all causes founded on any error or misconception on either side, which it is possible for such information as the other party has in his power, or the sagacity of the judge, to remove.

3. If the cause turns solely upon the evidence of the parties, or upon such real evidence as they happen to bring with them, or upon the question of law, or upon all together, it may receive a decision upon the spot. And why not then, as well as weeks, or months, or years afterwards?

4. The cause, if not terminated, is at any rate cleared in the first instance, by mutual admissions, of all facts on each side which the other does not mean to contest. By this means it is cleared of all the witnesses and written or other real evidence relative to those facts, of all expense relative to the production and examination of such evidence, and of all expense relative to the drawing of instructions for such production and examination. If the costs of the successful are thrown upon the unsuccessful party, a man though ever so much disposed to take any unfair advantage, will make no difficulty of admitting all such as, if not proved already, he is satisfied it must be in the power of the adversary to prove.

5. Both parties speaking upon oath, and like witnesses under the check of cross-examination administered upon the spot, all such false allegations, the truth of which he who makes them has no hope of being able to maintain, are cut off at a stroke.

Thus are both species of insincerity, falsehood and suppression of truth, banished, and that at the outset, from every cause; at least rendered as perilous on the part of suitors as by the best mode of examination possible they are already on the part of witnesses. Insincerity is the great support of litigation. If scope were not left for the insincerity of the client, the insincerity of the lawyer would remain without employ. Insincerity has accordingly, in all modes of procedure devised by lawyers, at least by English lawyers, been knowingly and wilfully allowed, protected, and encouraged.

6. If the cause, for want of sufficient evidence, is not yet ripe for an absolute decision, the party who feels himself to be in the right, may in the meantime have the satisfaction of receiving a sort of conditional decision, which to him may be little less tranquillizing than an absolute one. It will have been thoroughly understood, even at this early period, upon what hinges the dispute turns: whether it is the matter of law that is in question, or the matter of fact: what the facts are, on which the pursuer grounds his claim, and whether the defendant’s reliance is upon the disputing of those facts, or whether he trusts to some counterplea, which the pursuer disputes. A perspective view is thus gained at any rate by both parties, of the whole field of inquiry which the cause can have to run through: and it is in the power of the judge to announce to them hypothetically, what his decision will be in any event: what if the law or the facts turn out this way, and what if they turn out the other.

7. If it be a case fit for compromise, now is the time when a compromise may be brought about, at the most advantageous period, and under the most advantageous circumstances.

There are two cases, and but two, in which a compromise is not inconsistent with the ends of justice. The one results from the state of the law; the letter of the law lies open before both parties; and the manifest uncertainty of it reduces in the eyes of each the value of his claim. It may appear to each better to forego a part of his hopes, and realize the other part, than to remain exposed to the chance of foregoing the whole. The other case results from the circumstances that attend the fact. The expense of investigation may be certain; the result uncertain. The expense may be greater than the value in dispute. This may even remain the case, after all artificial expense has been struck off by law, and of the natural, none left but what is unavoidable; witnesses, for instance, to be fetched from distant parts, long accounts to be sorted, copied out, and subjected to minute discussion. In the first of these cases, it is true the compromise can derive no facility from the presence of the judge. It is his duty to decide. He must not be allowed to profess uncertainty, lest he should affect it. Groundless doubts may be affected with much less peril of character, than groundless decision given; and use might be made of them to extort from the suitor the sacrifice of a clear right. But as to every other subject of doubts, there is nothing to restrain the judge from assisting the parties with his representations and advice. What should hinder him? Is there any repugnancy between the functions of the mediator and the judge? There should seem to be, in the eyes of the committee; for they institute a set of courts upon a separate establishment, ordained to mediate, and impotent to decide. See the annexed paper on the reconciliation offices proposed by the committee.

8. If delay is now requested, no more will naturally be granted than what the exigencies of justice really demand. For, the party who applies for it will naturally be required, not only to make known the purpose for which he wants it, but to satisfy the judge that it is necessary for that purpose.

Under the current systems of procedure, delay is fixed inexorably for all causes, because it is possible that it may be necessary in some. A certain measure of delay every defendant is entitled to, whether he has need of it or no, and without telling any lies to get it. Another measure, upon telling certain lies, which, not being rendered punishable, are told without reserve or mystery. Another measure again, upon giving such reasons, as, true or false, shall have been fortunate enough to have passed the test of examination. So long as you make a point of keeping suitors at a distance from each other, and from the judge, this profusion of delay is unavoidable. When you cannot tell how much time a man may honestly have occasion for, you must make sure of giving him enough. As you will not ask anybody that can tell you, it is impossible you should know how much he has occasion for. You must therefore give him what, in ninety-nine instances out of a hundred, will be too much. Such is the consequence of unbending rules in a system of procedure.

What then? Are men of the first rank and consideration—are men high in office—men whose time is not less valuable to the public than to themselves—are such men to be forced to quit their business, their functions, or what is more than all, their pleasure, at the beck of every idle or malicious adversary, to dance attendance upon every petty cause? Yes, as far as it is necessary, they and everybody. What if, instead of parties, they were witnesses? Upon business of other people’s everybody is obliged to attend, and nobody complains of it. Were the Prince of Wales, the Archbishop of Canterbury, and the Lord High Chancellor, to be passing by in the same coach, while a chimney-sweeper and a barrow-woman were in dispute about a halfpennyworth of apples, and the chimney-sweeper or the barrow-woman were to think proper to call upon them for their evidence, could they refuse it? No, most certainly. Of the two hardships, then, which is the greatest—to attend upon other people’s business, or your own? One thing is certain, that if a great man who sues or is sued does not attend the judge, he must attend an attorney. Of the two attendances, which is most humiliating to his grandeur, and most consumptive of his time? Another thing is equally certain, that by the attendance of one person, great or small, in the character of a party, you may save the attendance of twenty such persons in the character of witnesses. What by confessions, concessions, or proposals—what by narrowing a cause, or putting an end to it altogether—no expense of time can be thus incurred that is not repaid with usury.

When a suitor, instead of attending a judge, attends an attorney, what is there saved by it? The client tells his story to the attorney, that the attorney may tell him what the judge will do, if the story turns out to be true. The attorney knows nothing about the matter; but he will write down the story, and give it to a counsel, that the counsel may tell him what the judge will do. If anybody knew what the judge would do, one should think it should be the judge. But the judge is not to be spoken with. How can you expect he should?—a cause would be put an end to as soon as begun—he has not been for some hundred of years; nor ever will again, if he can help it.

Convenient as this meeting would be to suitors, the opposite arrangement, it must be confessed, is by much the most convenient to all sorts of persons upon whom the option depends. It is more convenient to the lawyer to have a great deal of business, than a little. It is more convenient to the judge to do business with friends and gentlemen, than with low people and strangers. It is more convenient to the legislator to listen to the wishes of those who would save him from all trouble, than of those who would give him a great deal. I speak of British legislators: not of French, who know no pleasure but such trouble.

New Draught.—Art. XXII. All privilege in matters of jurisdiction stands abolished. All subjects stands henceforward upon an equal footing, in respect, as well of the manner of pleading, and the order in which their causes are to be heard and decided, as of the choice of the courts before which they are to plead. (15)

Art. XXIII.—The constitutional order of jurisdiction shall not be disturbed, nor the subject drawn out of his natural court by royal commissions, or attributions of causes, or arbitrary evocations. (16)

Committee’s Draught.—Art. XIII. All privilege in matters of jurisdiction is abolished. All subjects without distinction shall plead in the same form, and before the same court, in the same cases. (m)

Art. XIV.—The constitutional order among the jurisdictions shall not be disturbed, nor subjects called out of their natural tribunals by commissions or attributions, or arbitrary evocations. (n)

Observations.—(15) (m) Happy France! where aristocratical tyranny is laid low; while in England it is striking fresh root every day. When a peer commits a murder, more mischief is done by his trial, than by his crime. The time of the legislature, that time which is the property of the nation, and which ought to be employed on great plans of national reform, of which there is such abundant need—that time of which there can never be found enough, even for the routine of unavoidable affairs—is wasted upon this and a thousand other petty businesses, which could be a thousand times better transacted elsewhere. To the nation, the life of an idle peer is worth as much as that of an idle porter, but not so much as that of an industrious one. To the peers, their right of being tried by their own body in capital cases was of use when peers were in a state of perpetual hostility with the crown, and juries were at its devotion. It is now a burthen to the nation, and of use to nobody, unless it be to the Lord Chamberlain, and to make a raree-show.

(16) (n) In this fourteenth article, as in several of the preceding ones, we see correction, as is natural and necessary, treading in the footsteps of abuse. But, the mischief consisting in the application of the king’s sole authority to these purposes, respect should not have prevented the introduction of the king’s name. Commissions given, and attributions made by the authority of the National Assembly after public debate, on the grounds of public necessity, would stand upon a very different footing. Such extraordinary exertions of power nothing but necessity should extort from any authority; and in a settled government, such necessity is not likely frequently to arise. But that it may sometimes arise is what the National Assembly can have no doubt of, for it is what they have been acting under every day, though in the chastest manner, and with the most exemplary regard to justice. In tying up the king’s hands, they should take care to confine the knot there, and not slip it unawares upon their own.

New Draught.—Art. XXIV. Resolved, That this assembly will, with all convenient speed, proceed to the enactment of a law to determine in what cases, and how, the power of evocation may be lawfully exercised. (17)

Committee’s Draught.—Art. XV. A law shall be made to regulate the laws where evocation may lawfully have place. (o)

Observations.—(17) (o) Of the future law about evocations, as here announced, I have some suspicions. A lawsuit carried on, in order to know whether a lawsuit shall be carried on, is a bad thing: especially a lawsuit carried on in the capital by the inhabitants of a remote province, in order to know whether a lawsuit is to be carried on in that or a neighbouring province. In the cases where it may be proper a cause should go out of its ordinary court into an extraordinary one, it would be much better if it could be made to find its way thither of itself, without any one’s interfering extrajudicially to evoke it. This is accordingly what I have aimed at in a set of provisions which will be found in Tit. IV. of the present draught.

This article is nothing but a resolution, in which form I have accordingly conceived it.

Committee’s Draught.—Art. XVI. All subjects being equal in the sight of the law, every sort of preference, even respecting the rank and order in which a man shall be judged, is an injustice. In every court, the clerk shall keep a register-book, of which the leaves shall be numbered and signed by the president, in which all the parties who demand judgment shall cause their names to be set down in the order in which they shall have appeared and made requisition at the office. The president shall form three lists; in which shall be distinguished causes upon report, causes for hearing, and matters of a provisionary and summary nature. Each matter shall be entered upon the list to which, by its nature, it belongs, but in the order in which the names of the parties have been entered upon the register-book in the office: and this order shall be followed in giving judgment. (p)

Observations.—(p) Of this 16th article the first sentence seems to be unnecessarily severed from the 13th. The great principle it lays down will be found, I doubt, to be but indifferently pursued in the details that follow in the same article—details too minute to match with the rest of the contents of so general a title. The technical nomenclature of causes upon report, and causes for hearing, citing and adopting the present technical practice, the putting of these dilatory modes of proceeding before the summary ones, as if delay was to come in course, and expedition only in causes that were not worth delaying, are no very favourable omens. A fundamental position with me is, that every cause should be presumed summary: none taken out of that class without special reason. Expedition is the good to be aimed at: delay an evil to be submitted to through necessity, and only to the extent of the necessity. But of this hereafter in its place.

As to the inviolability of the order of the causes, by the parties whom the committee speak of as demanding judgment, they must surely mean the pursuers in each cause; for if the priority depended upon the defendants in cases where the defendant’s object is delay, as it is in most causes, the expedition gained by this regulation would not be very great. What then? When a cause is set down for argument, and the person who should argue it is dead, or confined to his bed, is it to be decided on that very day, and without hearing? If not, either the order of the causes must be departed from, or fifty causes must be delayed to no purpose on account of one. The article, by the terms of it, does not exclude any sort of cause, criminal any more than civil. A defendant guilty of a capital offence is not likely to be in any great haste to join in setting down his cause.

In judicial procedure, every rule that is not made to bend will be sure to break, or still worse must ensue. And when a rule, laid down by the legislature, is made to bend by the authority of the judge, what is this but the power of interpretation so anxiously proscribed.

In the Court of King’s Bench, causes are in general tried in the order in which they are set down upon the paper. Yet, upon special reason given, a cause is every now and then brought forward, or put back. But as this, if opposed, cannot be done without both parties being heard, nobody ever dreamt of the power’s being abused.

New Draught.—Art. XXV. Resolved, That this Assembly will proceed with all possible expedition to frame a new code of procedure, of which the object shall be to render the administration of justice as simple, as expeditious, and as little expensive, as possible.

Art. XXVI. Resolved, That this assembly will proceed with all possible expedition to frame a new code of penal law, of which the object shall be to render the punishments in every case as proportionate, as mild, and as apposite, as possible; never losing sight of the maxim, that every lot or degree of punishment which is not necessary, is a violation of the rights of man, and an offence committed by the legislator against society.

Committee’s Draught.—Art. XVII. The code of procedure in civil cases shall be reformed without delay, so as to render the proceedings more simple, more expeditious, and less expensive.

Art. XVIII. The penal code shall be reformed without delay, so as that punishments may be better proportioned to offences; taking care that they shall be mild; and never losing sight of the maxim, that every punishment, which is not necessary, is a violation of the rights of man, and an offence committed by the legislator against the community.

CHAPTER II.

Tit. II.—

Distribution and Gradation of the Courts of Justice.

New Draught.—Art. I. In every parish [or canton] there shall be a court of justice of immediate jurisdiction, under the name of the parish or [canton] court, composed of a single judge; saving such consolidations or divisions of parishes, as may be made for this purpose, in virtue of the powers hereinafter given.

Art. II. In every district there shall be a court of justice of immediate jurisdiction, under the name of the immediate district court, composed, in like manner, of a single judge.

Art. III. In every department, or subdepartment, or district, there shall be a court of appeal, under the name of the provincial court of appeal, composed, in like manner, of a single judge.

Art. IV. At Paris there shall be a court of appeal, in the last resort, under the name of the metropolitan, or supreme court, composed, in like manner, of a single judge.

Art. V. The decrees of the metropolitan court of justice shall be final, except such on account of which censure shall have been past on the judge, by a decree of the National Assembly, in manner hereinafter specified.

Art. VI. To each of the several classes of courts above mentioned, is given authority over all sorts of persons, and in every sort of cause, throughout the kingdom: saving only the difference between jurisdiction immediate and appellate, and the authority of certain tribunals of exception, in as far as the same is hereby acknowledged, and provisionally confirmed.

Art. VII. These are,—1. Courts-martial in the land service: in as far as the powers of such courts are confined to the maintenance of discipline among military men.

Art. VIII.—2. Naval courts-martial: in as far as their powers are confined to the maintenance of discipline among men engaged in the naval department of the public service.

Art. IX.—3. Causes relative to matters happening at sea, on board private vessels, belong to the jurisdiction of the courts of any territory where the vessel is in harbour; viz. to the immediate courts, if no regular judgment has been passed, in virtue of any lawful authority, on board the vessel; or, if there has, then to the courts of appeal.

Art. X.—4. Courts ecclesiastical: in as far as the powers of such courts are confined to the maintenance of ecclesiastical discipline among ecclesiastical men.

Art. XI.—5. All representative assemblies: for the purpose of putting a stop to, and punishing, offences committed, by members or others, in face of the assembly.

Art. XII. All courts, other than the tribunals of exception as above specified, shall be comprised under the common appellation of ordinary courts.

Art. XIII. In every ordinary court but the parish court, and in every parish court where there is a judge specially appointed, as in Tit. V. there shall be a pursuer-general, and a defender-general.

Art. XIV. Attached to the authority of the judge, as well as to that of the pursuer-general and defender-general of every ordinary court, shall be the power of appointing substitutes, or deputies; viz. one permanent, and occasional ones as occasion may require.

Art. XV. The name of advocate-general, or public advocate, shall be common to pursuers and defenders-general; and the name of judicial magistrate to judges, advocate-generals, and the permanent deputy of each.

Committee’s Draught.—Art. I. In every canton there shall be a judge of the peace, with good-men-and-true [prudhommes] for his assessors.

Art. II. In every district there shall be a king’s court, under the appellation of the district court.

Art. III. In every department, one of the district courts shall bear the name, and execute the functions, of a department court.

Art. IV. In such towns as shall appear to afford the most convenient situations, there shall be established superior courts of justice, which shall have for their field of jurisdiction, that of three or four departments, according to local exigency.

Art. V. Over the superior courts of justice there shall be, for the whole kingdom, a supreme court of revision.

Art. VI. The high national court, which shall have cognizance of impeachments of ministers, of crimes of high-treason against the nation, and of crimes punished with forfeiture on the part of courts of justice and administrative bodies, shall sit, when convoked, in the same place with the legislatures [auprès des législatures].

Art. VII. Matters of police, matters of trade, and causes relative to taxes and matters of administration, shall be cognizable in place and manner hereinafter to be explained.

Observations.—The principal differences beween the Committee’s plan and mine, turn upon the following points: viz.

1. The number of the judges put into each court. I put but one into any: they, from three to eighty-eight.

2. The principle of demarcation employed for the parcelling out of jurisdiction among different courts. I employ but one principle throughout, the geographical. They, after pursuing the geographical principle to a certain length, subjoin a multitude of tribunals of exception, grounded, as it should seem, upon no fixed principles.

3. The number of degrees of appeal. I establish two, and no more than two, for every sort of cause. They establish appeals in a number which it is not easy to count: different for different causes, and greater in several instances than they seem to be aware.

4. The vesting or not in the same persons the powers of a court of appeal, and those of a court of immediate jurisdiction. I establish this union of functions in no instance: they in several.

5. The nature of the tribunal standing on the summit of the scale. They give the penal controul over all other tribunals to a court called the High National Court, which is to be altogether independent of the National Assembly, and is to do a variety of other business. I give it to the National Assembly themselves: not thinking it fit to give, to any other set of men, a negative upon their laws.

6. The subjoining, as the committee does, a species of tribunal, with an authority different from that of an ordinary court of justice, under the name of a reconciliation-office. I admit no such thing; seeing nothing in a judge to hinder him from recommending a compromise, where such a recommendation is proper, nor any use in necessitating a lawsuit for the chance of saving a lawsuit, or in setting up a court with power to obstruct justice, and none to render it.

7. The mode of filling the offices of judicature. My plan, which is a new and particular one, has for its object the union of economy on the part of the establishment, with responsibility, intelligence, experience and that of the most suitable kind, on the part of the judge: without prejudice to the freedom of election on the part of the people.

8. The provision made for promptitude of justice, as far as depends upon the institution of the courts. In the committee’s I shall have occasion to point out several causes of retardation: in mine, several expedients for acceleration.

9. The provision made with regard to publicity. The committee make the publicity, or non-publicity of the proceedings, depend upon the penality or non-penality of the cause. Rejecting that distinction, I make the proceedings public in general; reserving secresy only for such special cases in which I can show it to be necessary, and in them no farther than it is necessary.

Where the committee mean the proceedings should be public, they give the judge, for witnesses of his conduct, two men, leaving him to take his chance for more, where they allow him any more. I give the obscurest judge a whole congregation: employing several expedients for securing to judges in more conspicuous situations, the benefit of a superintending audience.

10. The provision made for secresy, on particular occasions on which secresy is not incompatible with the ends of justice. This seems to be the object aimed at by the committee, in their institution of the family tribunal. In my plan, without prejudice to the ends of publicity, secresy is assured in all cases where anybody would wish for it, and just so far as they would wish for it, and no farther. The committee, though they appear to wish for it, have done nothing to ensure it.

11. The provision made for assistance to be given to the poor, to enable them to obtain justice. The committee establish a sort of court, or office, on purpose, consisting of members distinct from the courts of justice. I institute for the same purpose a pursuer-general and defender-general, with this and other functions, in the place of the committee’s king’s attorney, or attorney-general.

12. The use made of the institution of juries. The committee, in compliance with a general and not ungrounded prejudice, make it a fundamental article of the constitution. I give it to those who choose to have it, in cases in which they choose to have it, and not unless they insist upon having it: looking upon it as an institution, admirable in barbarous times, not fit for enlightened times, necessary as matters stand in England, of use against particular mischiefs, but those happily no longer possible in France. The grounds of this opinion will be amply set forth in a dissertation on purpose.

The questions concerning the number of the judges to be put into a court, the principle of demarcation to be pursued in the multiplication of courts, and the number of degrees to be permitted in the business of appeal, being topics that run through the whole plan, must meet with some degree of consideration under the present title. The remaining ones may wait for the several titles by which they will be respectively brought to view.

I.

Of Numbers in Judicature.—Single Judges preferable to many.

The question as to the number of judges acting together in the same court, seemed of such importance as to require a discussion too long to appear in form of a note. I have accordingly dismissed the full consideration of it to a separate essay. The result is, that (under the auspices of publicity) one judge is beyond all comparison preferable in every instance to any greater number. That this will be found to be the case, whether the question be considered with regard to the properties to be wished for on the part of an establishment for the administration of justice—which are, rectitude of decision, promptitude, and cheapness: or the qualities that in that view are to be wished for on the part of a judge—which, as far as they are concerned in the present question, are probity, exertion, and intelligence. That probity on the part of a judge is, to every practical purpose, to be considered as exactly proportioned to the strictness of his dependence on public opinion, meaning the general tenor of it. That a single judge finds nobody on whom he can shift off the odium of an unjust decree—nobody to share with him the weight of that odium—none to help, support him under the apprehension of it, by the encouragement of their countenance. That a single judge has it not in his power to give, without committing himself, the value of half a vote to an indefensible cause, by purposed non-attendance. That the reputation of a single judge stands upon its own bottom: and that he finds nobody to help him, as numbers help one another, to raise a schism in the public, and draw after them the suffrages of the unreflecting part of it, in spite of evidence, by the mere force of prejudice. That a judge, by being single, exerts himself the more from his seeing no resource but in his own powers. That in a single judge most intelligence is likely to be found, in as far as intelligence is the fruit of exertion. That the advantages obtainable from a plurality of heads independent of exertion, are wanted only in a small proportion of the whole number of cases: and may be had, in proportion as they are wanted, by the help of advocates and courts of appeal, without putting more judges than one into the same court. That it is only under a single judge that the quality of promptitude can be pushed to perfection. That a single judge has but one opinion, and one set of reasons, to give: that he has nobody’s opinion to wait for: nobody to debate with, to gain over, or to quarrel with: nobody but himself to put unnecessary questions, suggest unnecessary steps, and necessitate useless adjournments: all which causes of delay are so many causes of expense: nor, what to the committee seems to be so much the object of apprehension, anybody to form a party with, and rise up in opposition to the authority of the legislature. That the addition of colleagues in judicature is productive of the several inconveniences alluded to, in a degree exactly proportioned to their multitude. That all the advantages that can be expected from a multiplicity of judges may be insured, in a much greater degree, by a numerous auditory, with the addition of the whole world for readers, as to everything in the conduct of a judge, that anybody thinks worth their notice: and that any advantage, that can ever have resulted by accident from such multiplication, can be imputed to nothing but the chance it affords of an occasional glimmering of publicity. That what constitutes arbitrary power in judicature, is not the unity of the judge, but his exemption from the controul of a superior, from the obligation of assigning reasons for his acts, and from the superintending scrutiny of the public eye. That the reproach of arbitrary power belongs, on all the accounts we have seen, to the authority of many judges, especially large bodies of judges, in contradistinction to that of one: and that the circumstances which render plurality indispensable in sovereign legislature do not apply to judicature. That in Great Britain this reasoning has received the fullest confirmation imaginable from experience: that the probity of the courts of justice there runs uniformly, in a ratio compounded of the direct proportion of the publicity of the conduct of the judges, and the inverse proportion of their numbers. That imagination cannot conceive, nor heart desire, greater integrity than has been uniformly displayed for ages, by courts composed of single judges, without juries, under the auspices of publicity, though in a state of dependence on the crown: while courts composed of large multitudes of judges, and those occupying the highest ranks of life, have, either virtually or formally, abdicated their authority, on the avowed ground of their profligacy or inaptitude.

If these principles be just, the saving they will produce in the expense of the establishment is prodigious. In the expenses attending the collection of taxes, in the terms of loans, in the adjustment of most other plans of economy in finance, a saving of a few units per cent. is thought a great matter: here it runs in hundreds per cent., and the least saving is a hundred.

A question the committee do not appear to have taken into consideration is, whether the number of judges allotted to each court are on every occasion to sit together, taking every one of them cognizance of each cause in every stage of the proceedings; or whether on any and what occasions they are to divide themselves, one part sitting upon one cause, and another part sitting upon another cause, at the same time.

For this question my plan affords no room. On the plan of the committee, it is of the highest importance.

I. First, Suppose the judges never to separate. In this case, what if one set of judges to a territory, to a district, to a department, to a super-department, should not be sufficient for the business? What follows? Either a proportionable part of the causes must go without justice, or more such courts than one must be established in every such territory. My notion is, that there will scarcely be any one such territory in which the single court allotted to it will suffice: and that, on the contrary, several will be found, in which a considerable number of such courts will be found necessary. If so, this profuse multiplication of judges, and the profusion of expense which is the consequence, must be multiplied in proportion; and the multiplication will increase in proportion with the facility of the terms upon which the people obtain justice; that is, with the goodness of the plan—with the degree of its subserviency to its end in other respects.

In point of power of dispatch, it must not be supposed that five, or ten, or twenty, or six-and-thirty judges, will be equal to one; they will be much less than one, and less in proportion to their multitude. The reasons of this have been already intimated, and are more fully stated in the paper alluded to. Where I should want three or four courts of concurrent jurisdiction in the same territory, the committee, for the same quantity of business, might want four or five.

If the judges were not to sit constantly all together, but were upon occasion to distribute themselves, then—

1. In proportion as the distribution took place, the principle of the committee would be departed from; and whatever advantages are expected from the multiplicity of judges would be give up.

The distribution, if any, would be, I suppose, for the purpose of dispatching different causes at the same time. It is not very natural, though in many instances it would be possible, that it should take place, for the sake of dispatching at the same time several points relative to the same cause. Points in a cause present themselves generally at successive periods, according to the stage to which it has advanced. It is possible, indeed, for one judge to be examining one witness; another, another; while a third judge is occupied in hearing a debate on some question of law. But this is not the usual course, nor in general would it be a very eligible one.

In France, the custom has been hitherto, if I understand right, for one judge, in a court consisting of perhaps twenty judges, to take to himself, under the name of judge-reporter, the examination of all the witnesses: while the decision, whether upon the conclusions to be drawn from the evidence, or upon the questions of law, is given afterwards by the whole body. According to my notions, if there were any use for more judges than one, it would be much rather for the examination of witnesses, than for deciding on the question of law, or upon the whole body of evidence, as furnished in writing by other hands: but of this elsewhere. Be that as it may, if, while one judge is occupied in collecting the evidence, the other nineteen are to stay at home, and do nothing, nothing is gained by the separation. Nineteen judges out of twenty are kept idle, without any reason: the advantages, real or imaginary, of a multiplicity of heads, are sacrificed: and nothing gained in dispatch, except what depends upon the hitherto-unheeded advantage, in this respect, of one over a multitude.

If this matter is to be left at large, as I believe it is, more or less, in France as well as elsewhere, then comes in a world of complication: regulations deciding what number of judges shall be necessary in one case, what sufficient in another: adjournments for want of the sufficient number: debates on the question whether a case belongs to one or another of these heads. This is one out of the thousand ways in which trouble and expense are spun out of nothing, to no purpose.

If it be impossible to know beforehand, with any tolerable exactness, what the quantity of business will be in any judicial territory, and what number of courts it will require to go through with it, the fixing beforehand a precise number of courts for any such territory must be improper: if not enough, the consequence is a failure of justice; if more than enough, an unnecessary expense. This must be particularly apt to be the case under a new system, so different from everything that has gone before it. It is on these considerations that I have rendered the number of judges, that is, of courts of concurrent jurisdiction in each territory, so far loose as to be able to be suited with tolerable exactness to the experienced demand: viz. by the powers given to each judge to appoint deputies without salary, and the powers given to the local representative bodies to add courts, composed of single judges with salaries, as will be seen under the next title: avoiding every expense on this account, of the necessity of which there can be any doubt.

This sort of pliancy, so necessary to every new establishment, nothing but the system of unity in judicature, and the extreme simplicity that characterizes it, could have rendered practicable.

The confidence which the committee have in numbers is extreme. No consideration but that of the expense seems to set them any limit on this side: of course, the more important the business of the court, the more judges they put into it. In their lowest order of courts, as there are to be so many of them, (about four thousand) they put but one judge, who surely must be paid as such, though nothing is said about it—doubtless, because they could afford no more; but to him they add two other poor men, under the name of assessors, who are to appear to cost nothing, because the expense is to be thrown upon themselves. In the order of courts next above, in the district courts, they put five. In the courts called Reconciliation offices, one to each district, which are to keep men from going to the district courts, they put six, of whom three are to appear to cost nothing: the other three, being lawyers, are to be paid: in the department courts, ten: in the courts called Superior, twenty: in the court called Supreme, thirty-six: in the High National Court, which is still higher than the supreme, eighty-eight, out of whom eighty-three are to have the name of jurors, with scarce anything but the name.

What should have occasioned this predilection for crowds, I am under some difficulty to determine.

1st, It cannot have been experience of advantage: the testimony of experience can hardly have been so opposite, surely, in France, to what it has been in Great Britain.

2dly, Was it mathematical reasoning? Perhaps so, in some degree. I have by me a large quarto of mathematics, written by a mathematician and politician of deserved eminence, in which the utility of numbers, as a security for good judicature, is assumed. The conclusions of mathematicians, though always mathematically just, are not unfrequently physically false: that is, they would be true if things were not as they are. Some necessary element is omitted to be taken into the account: and thus the only effect of the operation is to mislead. Of the elements which I have ventured to suggest as proper to be taken into the account here, unfortunately there is not one that has been taken into the account I speak of.

3dly, Was it the mere force of habit? Probably so, in no inconsiderable degree: the habit of seeing numbers put to the same business, and the greater numbers commonly to the more important business. But of this multitudinous establishment of judges, what was the final cause? Was it the advancement of justice? was it that they who raised it, thought that justice would be the better for it, or cared whether it would be or no? No: but because the king wanted money, and this was found a way of getting it: the more judges, the more offices; the more offices, the more money.

In the decision of this question, one thing ought not to be forgotten. Simplicity and frugality being on the side of unity, the onus probandi lies altogether on the other side. It is for those who contend for the complicated and expensive establishment, to show that it possesses advantages, and those so considerable, as to outweigh the indisputable and enormous inconveniences of complication, and multiplication instead of addition, of expense.

Even although, upon no other grounds, the decision were unfavourable to the principle of unity in judicature, still, if it were not very clear and peremptory, the prodigious advantage, in point of economy, might entitle it at least to a temporaty trial. Should the system of simplicity fail upon the trial, nothing would be easier than to go on to a more complicated one, and add complication in proportion as complication were adjudged necessary. Begin with a complicated one, it is not so easy to fall back into the line of simplicity. At the first outset you may give your scale of expense whatever degree of contraction you think proper, without hardship to any one: but a scale of expense once enlarged cannot be contracted without real hardship and much difficulty. Before any one is named judge, say there shall be one judge only, instead of six-and-thirty, and you hurt nobody. But suppose six-and-thirty chosen, are you then at liberty to strike off five and thirty of them? Not justly, without continuing them their salaries: and even then, loss of dignity and power is a hardship, for which you have afforded them no compensation.

View the establishment as a subject of economy: so long as frugality presents but a tolerable chance of answering the purpose, who, in an overburthened nation, would give the first trial to profusion? Consider it in the light of a means directed to an end: better pay the price of the complicated establishment for the simple one, than that of the simple one for the complicated one.

I could suggest temperaments and compromises—unity below, multiplicity above, where, fewer tribunals being wanted, it would cost less; because purity above insures purity below; and the certain disappointment of all projects of injustice is a sure preventative of all such projects. Numbers the last resort, to those who choose to bear the expense: as in England you may for a guinea a-head have a special jury, if you choose not to trust to a common one. But why look out for temperaments, to spoil simplicity and substitute mediocrity to excellence? Reason, supported by experience on one side: prepossession derived from mere habit on the other—can the most enlightened of nations hesitate?

The strength of the argument against single judges and summary justice lies in an epigram of Montesquieu’s. Single judges are bashaws: summary justice is Turkish justice. “The bashaw sees how the matter stands at the first word, orders both parties a good drubbing, and there’s an end of it.” The situations are not altogether parallel. In Turkey, no written law; for among the thousand and so many pages of the Koran, there are scarce ten about law; and they might as well have been about anything else. In Turkey, no public, no press, no newspapers, no National Assembly, no municipal or administrative bodies, no popular elections. In Turkish justice, no minutes of proceedings, no appeals, no means of escaping from the jurisdiction of an exceptionable judge, into that of an unexceptionable one: an escape which the committee’s plan hopes in vain to effect at the expense of a lawsuit on purpose, to be carried on in the metropolis; and which mine insures without expense, delay, or difficulty.

Thus much for the advantages of simplicity, in relation to the number of judges to be put into a court. We shall find them equally indubitable, and little less considerable, in relation to the multitude of sorts of courts to be put into the establishment. I mean the adoption of the geographical principle of demarcation to the exclusion of every other, striking off without mercy all manner of tribunals of exception, as well those which the committee create, as those which they destroy: two or three indispensable ones excepted, which, as presenting themselves to everybody, they have not thought it worth their while to notice.

CHAPTER III.

Title II. continued.—

On the Mode of parcelling out Jurisdiction.

In an extensive country, such as France and England, more tribunals than one are necessary.

Two causes concur in the production of this necessity: 1. The time which the business must take up on the part of the judge; 2. The time and expense which it must cost the suitor to go in quest of justice.

A necessity of this kind may result from the first of these causes, where it would not from the other. Population may require more tribunals than one, where mere local distance would not. In a town like Paris, it is not conceivable that the time of one tribunal should be sufficient for all the business: but if it were, it could scarcely be worth while, on the mere account of local distance, to set up two. In the largest city, were the situation of the seat of justice at all centrical, no inhabitant could have more than two or three miles to go to it. The consumption of time would be little worth noticing, and the expense still less.

The consideration of local distance, including that of the time and expense of travelling, tends on two accounts to necessitate the multiplication of tribunals: on the score of economy, and on that of promptitude. Expense attending the pursuit of justice has the effect of a denial of justice to all who have not wherewithal to defray the expense: and consumption of time, to him who lives by the sale of his time, is equivalent to expense. Distance in point of place, making a proportionable distance in point of time, is productive of a failure of justice, in all instances in which, the business of justice if not done within a certain time cannot be done at all, and it is not done within that time: as if a fugitive thief were to be apprehended no otherwise than under a warrant from the judge, upon the application made by the party robbed, and the party’s residence were fifty miles from that of the judge’s.

On both these accounts, if the consideration of local distance requires anywhere the multiplication of tribunals, it is by requiring their distribution. There must in the whole be several tribunals, that everywhere within a moderate distance of the remotest suitor, there may be one.

The advantage to be gained by the institution of several tribunals at a distance from one another, could not be insured in every instance, unless a boundary line of some sort or other were drawn between them somewhere, distinguishing the spots over which their jurisdiction should respectively extend. In vain would you give a man a tribunal close to his own house, if, at the pleasure of an adversary who waited for nothing but an opportunity of distressing him, he were liable to be dragged away before a tribunal at the farther end of the country.

The purely local ground of multiplication may exist, too, without the temporal. Few or many, distant from, or contiguous to each other—all the inhabitants of a country must have access to, all must be accessible to—justice. Few or many, every one of them, every two of them, at least, must have within a certain distance of them a judge. For want of justice, any man may at any time lose his all: not to mention life and liberty. But a very small portion of that all will be as much as his share of the sum requisite for the maintenance of a judge can possibly amount to, in any place inhabited and worth inhabiting. Though the quantity of business arising within a given territory took not up an half, or even a quarter of the time of the judge, yet if the territory is so extensive, that any persons living beyond the circle that bounds it would find themselves beyond that greatest admissible distance, the territory of that judge ought not therefore to be enlarged, much less any other territory tacked on it. In a very thinly peopled country, such as is the Russian empire in most parts of it, more judges may therefore be necessary in such parts, than full employment for is likely to arise.

The causes which contribute to render the local ground of multiplication a proper one, serve to fix the mark up to which the multiplication of tribunals (and consequently the division of territory for this purpose) ought, and beyond which it ought not, to be pushed.

The inconveniences that may result from occasional failure of justice, by reason of want of promptitude, will, it is true, scarce come under calculation. Those resulting from the constant denial of justice are easily determinable: and on this ground it may be laid down as a rule, that the area of a judicial territory ought always to undergo a further division, if the value of the time that would be saved on the part of all the suitors by such further division would be greater than what it must cost to save it—which is the value of the whole time of an additional judge, added to that of the subordinate officers, whose services form a necessary appendage to the judicial office.

If any consideration could set limits to the multiplication of tribunals on this ground, it would be that of publicity. Publicity has been shown to be the sure and only effectual pledge of probity and all other qualities requisite on the part of the judge. Its efficacy in this respect will be proportioned partly to the number of the individuals of whom the public consists, but still more to the measure of intelligence to be found among them. On this account, for the sake of getting a good public, it may be worth while to send the suitor to a greater distance than he need have to go otherwise. On the mere account of economy, it might be worth while to cut down every section of territory, such as the committee’s districts, into six or eight sub-sections, such as their cantons: yet in this or that canton, there may be so indifferent a public, and in the chief town of the district so good a one, that in many cases it may be worth while to waive the advantages of nearer justice for the sake of those of better justice.

But of this consideration alone, what is the result? Not to set limits in any respect to the multiplication and distribution of tribunals: but only to suggest the expediency of permitting recourse to a more remote tribunal in preference to a nearer one.

An obvious expedient for reconciling the opposite demands thus made by vicinity and publicity, is that of appeal: when the near justice is found not to be good, let a man go farther and have better. Hence the use of an appeal from a canton court to a district court.

But double litigation is double expense and trouble. If the second litigation can be saved, in any instance, without any extraordinary expense, so much the better. If the time required by the quantity of business is sufficient to find employment for a district court of immediate jurisdiction, in addition to the canton courts within that district, the interests of vicinity and publicity may thus be reconciled in the first instance. Where, in the opinion of either party, the superior chance of good justice is worth paying for, by the trouble of going to an immediate court, seated in the capital town of a district, instead of a nearer canton court, he may have it. Under such an arrangement, causes which have anything particular in them, either in the way of difficulty or of importance, will naturally find their way to the district court: while the ordinary run of causes will stay, at least in the first instance, in the cantons. And in this way nature will effect, in the most perfect manner, and without any inconvenience, a separation which art and positive law could not, as we shall see, execute, but in a very imperfect manner, nor attempt without very signal inconvenience. On this consideration is grounded in part my establishment of immediate district courts, and the intercommunity of jurisdiction between every such court and the several parish or canton courts within the district, as according to Titles V. and VI.

Under the restriction thus set by these two considerations of economy, it is evident that the multiplication of courts upon this ground cannot be carried too far, nor consequently the extent of each jurisdiction confined within too narrow bounds. A thing much to be wished is, that no court of immediate jurisdiction should have an area so extensive, but that an inhabitant situated at the remotest point of it from the seat of justice might travel thither, do his business there, and return in the course of the day, without sleeping elsewhere than at his own home. Travelling early and late, this, it is presumed, he may do, if the distance is not greater than ten or twelve miles. This measure, not only the cantons, but even the districts, if the seats of justice in them are set down centrically, will, I hope, be found in general not to exceed. To a man who can afford no other means of conveyance than what nature furnishes, ten or twelve miles very early in the morning, and the same journey late in the evening, would be no intolerable hardship. A man who has more easy means of conveyance at command, has, at the same time, less need to regard the expense of a night’s lodging from home, and less occasion to incur it. But the persons not thus favoured by fortune are those whose interest ought to set the law; for of such is the bulk of the people made.

I speak of immediate courts: for as to courts of appeal, as in general they ought not in their judgments to take into consideration any other materials than what were possessed by the court below, and as it will not in any case be necessary that they should engage in any examination of personal evidence themselves, the necessity of personal attendance of parties does not extend to them. But of this under the heads of appeals. What if a district should be found anywhere, whose funds were insufficient to the defraying of this necessary expense? The aid of more opulent districts must be called in. Where there is no justice there should be no inhabitants. And that there should be justice in every territory is scarcely more the interest of the inhabitants of that territory than of all its neighbours.

Expenses, of which all parts of the kingdom have the benefit, should be defrayed by all. It is not therefore merely where a district is unable, but where it is less able than others, that it has a claim upon others for relief. Thus far, then, extends that least admissible number of local judicatures, to the expense of which the whole wealth and population of the kingdom should equally contribute. In a territory of which the population requires a further division of territory and an additional supply of tribunals, the same cause that creates the demand will afford the means of satisfying it. The more people there are who want justice, the more there are to pay for it.

The case above put must surely be ideal in a country like France; unless possibly in the neighbourhood of Bourdeaux. But in some countries, for example in the Russian empire and in America, it may have its application.

As to the number of courts of justice that France could afford to maintain, we know thus much, that, if according to the foregoing definition, it were worth while, she could afford as many as she contains parishes. For she can afford to maintain, and always has maintained, as many ministers of religion as she contains parishes. Better justice without religion than religion without justice. Religion can exist, does exist without ministers: justice never can exist, never has existed, without judges. But what is there between justice and religion so incompatible, as that he who ministers to justice might not minister to religion, or he who ministers to religion, might not, optionally at least, minister to justice? On this consideration stand the passages in Tit. V. of my draught relative to the provisional and optional use to be made of ecclesiastical ministers in the capacity of parochial judges.

The purely temporal ground of multiplication may, as hath already been observed, require more courts within a given territory, than it would be very material on the purely local ground to distribute. Where this is the case, intercommunity of jurisdiction may be permitted with less scruple: and from intercommunity of jurisdiction, in as far as other considerations allow of it, very material advantages may be observed, as I shall presently have occasion to show.

Taking a country throughout, the purely temporal ground of multiplication, and the local ground of distribution, agree however pretty well in the results they dictate. It is only in towns, that you can find it necessary on account of the quantity of business to set down in the same territory, two tribunals which on account of the distance, it will not be eminently advantageous to distribute.

What must never be forgotten is, that though the grounds for multiplication of tribunals may be two, the ground for dispersing them, and in consequence for parcelling out jurisdiction between them, is but one. This simple and genuine principle of demarcation I style the geographical one, in contradistinction to certain spurious ones, of which presently.

As to this principle, it must be observed that, though, when the sections of territory that have been the result of it are very small, for example less than the area of the largest towns, the benefit to be obtained from pursuing it still further be not very considerable, yet that benefit is always something: so that, in whatsoever section of territory the quantity of business requires the placing of two tribunals, it is better to place them at a certain distance from one another than not: and for that purpose to cut down the section into two, how little rigour soever may be thought necessary in guarding the limits between the two sections from being overleaped. Neglecting, therefore, the purely temporal ground of multiplication, as one which can never present any tribunals as fit to be erected, which on the ground of local convenience it would not be advantageous to distribute, we may consider distribution as the inseparable accompaniment of multiplication, and the geographical principle of demarcation as presiding throughout over the establishment of courts of justice.

I seem to have said nothing: in fact, I have said everything. So long as any more courts can be set down to advantage, in addition to such as may already have been set down upon the geographical principle, so long ought more courts to be set down, but still upon the same principle.

When there are so many tribunals erected upon that principle, as it is worth while to have in a territory, more tribunals ought not to be erected on any consideration, or on any pretence. Add but a single tribunal more, on the suggestion of any other principle, what is the consequence? As a court of justice it is useless: as a source of expense it is pernicious.

If anything prevented the application of the geographical principles of demarcation, other principles might be resorted to, and jurisdiction might be carved out in the manner presented by such other principles. No principle for this purpose has ever been adopted in an extensive country: none ever could have been adopted to the total exclusion of the geographical one. Other principles, however, have been resorted to in concurrence with it, sometimes perhaps because something prevented carrying the geographical principle to the end of its career, but oftener without that reason, without any good reason, and without any cause but the propensity to imitation. But all such spurious principles are very bad succedanea to the only genuine one, having no advantage over it in any respect whatsoever, and being incurably infected with many, and very important, inconveniences, as will presently be seen.

These principles may be all reduced to two: the metaphysical, as I take leave to style it, and the pecuniary. The metaphysical principle of demarcation is a bad principle: the pecuniary one is a bad modification of that bad principle.

I term metaphysical the principle that gives to one court one sort of cause, to another court another sort. Geography is a study as pleasant as it is simple: it is one of the sports of children. Metaphysics, when well applied, though a very useful, is a very dry study: and here, being very ill applied, it is a very pernicious one.

From the sensible world you now find yourself launched into the intellectual. Adhere to the geographical principle, the map of France or England is your sufficient guide. A speculative field now commands and tortures your attention. A new map is now spread before you: a map of causes of action, of sorts of rights, of sorts of wrongs, or of offences which are the infringement of those rights. Spread before you, did I say? No: the legislator has done no such thing for you: he knows not how to do it. He refers to objects as if they were to be found in such a map: but the map, if there be any such thing made, it must be you that make it. It is for want of understanding metaphysics that the legislator talks metaphysics to you, and calls upon you to understand it. On pain that may follow, on pain of life, liberty, or fortune, he commands you to understand that with which, had he himself understood it, he would have known better than to have meddled.

To some of the tribunals, severed by the metaphysical principle of demarcation from the body of those set up upon the geographical principle, the committee give the name of tribunals of exception. I give it to all of them.* Tribunals of exception are productive of various inconveniences, which multiply in proportion to the number of such tribunals. Spite of those inconveniences, the very few tribunals of exception which stand in my plan under that name, are not only convenient but necessary, as will be shown further on. Excepting those, of which the committee take no notice, no others are attended with any advantage whatsoever.

An establishment constructed exclusively upon the geographical principle of demarcation, and that pursued to the utmost, is chargeable with one inconvenience, which is the expense. But of this inconvenience a certain measure is inseparable from the establishment upon any plan: it is inseparable from all establishments: and by the supposition, the expense is not laid out without fruit. It is chargeable, however, with no other imaginable inconvenience whatsoever. An establishment into which the other principle of demarcation is admitted, is, in proportion as that other principle is pursued, attended with no less expense, and with the following inconveniences, from which the geographical one is free:—

1. Superfluous multitude of courts: hence money wasted to pay unnecessary salaries. So many courts as it is worth while for you to pay for, so many does the geographical principle require: whatever the metaphysical adds, are just so many which it is not worth your while to pay for. Five courts the committee have taken from the geographical principle; courts of appeal included: the canton court, the district court, the department court, the superior court, and the supreme court. Four others they have taken from the metaphysical principle: their high national court, their court of police, their court of trade, their court of administration and revenue: not to mention what they call a reconciliation-office, and I a court for obstructing justice.†

2. Inconvenient paucity of courts: the inevitable consequence of such a superfluity. If five ranks of courts, one above another, are necessary in any one sort of cause, so are they, without any exceptions worth mentioning, in each.

Five times five and once five make thirty: applying the geographical principle to each division made of the metaphysical, they ought therefore to have had thirty sets of courts, instead of thirteen. Their court of revenue, for example, has cognizance of debts due to the state on the ground of taxes: but as four thousand of these courts were too many to distribute among the cantons in addition to the four thousand courts called canton courts, the cantons are deprived of the benefit of these courts, which are given to the districts only, to the amount of no more than five or six hundred. But if it be inconvenient to a man to travel from one side to another of a district, to answer to a demand of two or three livres made on him on the part of an individual, it is not at all less so when the demand, instead of being made on the part of an individual, is made on the part of the crown.

3. Useless addition made to the voluminousness of the laws, with which increases always the difficulty of apprehending and retaining them; and the chance that a given disposition of law will in each given instance be ineffectual to its object—effectual only to the purpose of drawing down punishment or other unexpected hardships, for want of having been apprehended or retained.

4. Difficulty of knowing which of so many sorts of courts to resort to. How happy the suitor where there is but one court, the court! the simplest of all clowns would not mistake his way to it. Cut courts out of another with metaphysical sheers, a science of that which ought not to have had existence is thus created out of nothing. To the necessary science of knowing whether you have a right and a remedy for it, is added the unnecessary one of knowing to what sort of a judge you are to go in order to get your remedy. In vain have you re-enacted your indefeasible law of nature, and proclaimed the maxim, Every man his own lawyer. The hireling laughs at your maxim, and sits down in tranquil certainty of his prey. He knows that, in the very first step in the road to justice, you have built a labyrinth, to which no man has a certain clue, and to which no man but a lawyer can pretend to have any.*

As to the committee, the foundation of their labyrinth is laid; but who shall say, when, or by whom, it shall be finished?—Out of the first parcel of metaphysics come forth doubts: then comes more metaphysics to solve those doubts; and out of the fresh metaphysics arise fresh doubts. At a moment’s glance, I see doubts enough to fill a volume:—but who would thank me for it?

5. Subservience to the purposes of publicity is not the least among the advantages of the principle of universal competence. Tribunals of exception cut off the attention of the public from the principal courts, and from each other, and break down the superintending part of it into portions too small to be sufficiently respectable.

In England, as in France, a thousand heterogeneous tribunals, armed with scraps and fragments of jurisdiction, distract the attention of the public, not less than they deform the face of justice. Gather up these fragments, put them into one great receptacle, no part of the public will be lost. This, and that, and t’other court, escape from observation; but the court, an object deriving greatness from its simplicity, lifts up its head like a landmark, and extorts attention from the most incurious eye.

Ask for the advantages of this complication: they are absolutely none. No, not the smallest particle; not a shadow of advantage. A particular branch of the law, it will be said, will in a particular spot find of itself constant employment for a court of justice. Be it so. What follows? That you ought to have a court empowered to take cognizance of that branch, and no other? By no means. By denying to that court all other branches of jurisdiction, what do you gain? Nothing.—Oh! but the judge may not understand the other branches so well as that particular one. Why so? what should hinder him? Does not every advocate that practises understand every branch? The knowledge which you make sure of finding in every advocate, why should you doubt of finding it in a judge? The judge has the advocate to prompt him: who is there to prompt the advocate? When the book of the law is opened before him, as you intend it shall be, will it be more difficult for him to read one page of it than another? No: if the law has anything in it more difficult than another, it is this very science, which you create out of nothing, under the notion of solving difficulty. What belongs to him, and what does not, is one of the most difficult points which the judge of a tribunal of exception, or the judge from whose jurisdiction a tribunal of exception is severed, has to solve.

The particular branch of business, you say, will be sufficient of itself to fill up the time of one tribunal. So it certainly may be, just sufficient to take up the time of one court, and no more; just sufficient to take up the time of two courts, and no more; and so on. All this is possible: but the chances against its being fact are infinity to one. Is one of these peculiar courts not quite sufficient? Two such courts will be sufficient, and a great deal more. Institute but one of them, all men are delayed, and some go without justice. Institute two, the judges of one or both sit idle a great part of their time. I ask, what is the use of their being kept idle, surrounded as they are by fellow-citizens, who, for rights relative to other branches of the law, are lingering without remedy?

Bad as the metaphysical principle of demarcation is, the pecuniary is still worse. Why? Because to all the bad qualities of the metaphysical, it adds others of its own. To such a court shall belong the cognizance of such and such sorts of causes, says the metaphysical principle: provided they are not beyond such or such a value, subjoins the pecuniary. What follows? That, besides being plagued about the sort of cause, you are plagued about the value. What if the value of the thing change in the course of the cause? What, if there be several who claim shares in it, or against whom shares are claimed? What if one claimant gives up his share, and makes the thing beyond value? Does the addition of interest to principal, or of costs of suit to both, raise it beyond value? The doubts, that sprung out of the institution of assessors to criminal examinations, are nothing, in comparison with the unobviated ones that might be drawn out of this single word.

But the worst charge against the pecuniary principle is yet behind. It is the being connected, as it is inseparably, with a false estimate of importance: in consequence of which, causes of chief moment have been treated in various ways, as if they were of little moment, or none at all.

To detect the false measure, we must lay down the true. View a cause through the medium of public concern, the importance of a class of causes has two measures; its importance to the interest of each individual person concerned in each individual cause, and the number of individuals so concerned.

On both accounts, the importance of a class of causes relative to a sum nominally small, instead of being, what the pecuniary principle always supposes it to be, less than that of a class of causes relative to a sum nominally large, is greater. The importance of a sum to the interest of a given individual, is in its ratio to his income. It is but a small proportion of the people, for example, in France, that have each so much as 200 livres a-year to live on: a very small proportion, indeed, if women and children are to be taken into the account:* the king’s brothers are to have each exactly 20,000† times that sum; 2,000,000 of livres. One livre is, therefore, of at least equal importance to the one, with what 20,000† livres is of to the other. It is, in fact, of much greater importance: for superfluity will bear retrenchment, and that in proportion as it is superfluous: a bare subsistence will bear none. Take from a king’s brother half his income, he still remains an opulent prince. Take from an ordinary day-labourer half his income, he starves.

Taking this for the true measure of pecuniary importance, the importance of a cause, taken indiscriminately, is rather in the inverse than in the direct ratio of the sum; for as the classes of men are more numerous as they are poorer, and the most numerous of all is the poorest of all, a cause about a small sum is more likely to be the cause of a poor man, than a cause about a large one.

The medium, through which the question of importance has usually been viewed, is of a different tinge. That cause is a cause of importance in the eyes of a legislator, that would be so to a man of his opulence, that is of his dignity, and to the great men, that is, to the rich men he is wont to live with,—of whom alone he is wont to think with any degree of complacency, and who alone are deserving of his care. That cause is a cause of importance in the eyes of a lawyer, which will afford a lawyer such a fee as a man of his dignity may stoop to take. Such a cause is to be summoned up to those superior courts where men of such dignity do not disdain attendance. A cause of no importance is a cause that will afford no such fee. What becomes of such cause, or of the class of people likely to be concerned in such a cause, is a question not worth caring about. The cause and the parties are turned over, without appeal, to some obscure and inferior jurisdiction which does with them what it pleases.

From the notions, just and unjust, that have prevailed respecting the importance of different classes of causes, two principal distinctions have been deduced; one respecting the mode of judicature to be respectively allotted to them; the other respecting the treatment to be given to them in the way of appeal. The latter consideration belongs to the next head: a few words relative to the former may come in here.

When the subject thrives, it is sometimes by the care of his keepers, and not unfrequently by their neglect. Regular justice, as it is called, is the justice which the reverence of lawyers has provided for important suitors and important causes. Summary justice is that with which, in their disdain, they have, in some few instances, prevailed upon themselves to indulge the vulgar herd. Regular justice—that is, dilatory, expensive, refined, justice, and, in every respect, and every instance, the worse for its refinement. Summary justice—that is, cheap, expeditious, and substantial. The division having been made, the distribution could not have been more happy. But the plain truth is, that no such distinction ought to have existence. Good justice, it is not less in the power of legislators to bestow, if such is their pleasure, upon the most important causes than upon the most trifling ones: upon the rich than upon the poor. Justice in itself is simple: it is the same for one man as for another: it is only legislators who, by the advice of lawyers, have complicated it, and torn it into shreds. It is neither above nor below any man’s level, unless where removed out of his reach by the interested cunning or blundering anxiety of those whose province it is to dispense it.

That summary justice is really the genuine, and regular the counterfeit, is what any one, who has read the observations of Art. 21 of the preceding Title, has, I trust, found some cause to suspect. To convert his suspicions into complete assurance belongs not to the present work, but to the subject of procedure.

If these principles of demarcation have no foundation in utility, how came they, say you, to be adopted? Just as so many other principles came to be adopted in legislation, at first from some narrow private interest, or some narrow view of public good, afterwards from imitation. Force alone decided geographical boundaries: force and cunning together decided metaphysical ones. In the war of all against all, while baron and baron were fighting for territory, lawyer and lawyer were scrambling for jurisdiction. The king’s lawyer seized what he could from the baron’s lawyer: the baron’s lawyer retaliated as well as he was able: the priest stole what he could from both. This was the case all over Europe. In France, this precious branch of metaphysics derived peculiar encouragement from royal indigence: jurisdiction was cut in slices to be sold; and the discovery of a new branch, capable of being stripped off anyhow from the old trunk, was like the discovery of a gold mine. New laws would cause, every now and then, fresh branches to sprout out: and then, what was to be done with them? Distributed among the sets of judges in being? Their hands were full already. New remedies would now and then be thought of for old subsisting rights: the old judges could not, or would not apply them: and new workmen were appointed to the new work. Tired of being without justice, in countries where the extravagance of the price threw it out of people’s reach, parts of the people would grow clamorous: their demand would, every now and then, be complied with, as to a few sorts of causes, to a value too small to be worth a lawyer’s notice: and thus the pecuniary principle came to be grafted upon the metaphysical in these and several other ways. The artificial principles of demarcation had got so far the ascendant as almost to hide the natural one from view.

The committee found this system of complication in full vigour. What did they? They did as every body must do: go to work upon the old stock of ideas, when time for the discovery of new and better ones is not to be had. When the treasury of error is exhausted, then at last comes truth: when the stores of complication are expended, then at last comes simplicity.

I have spoken of certain tribunals of exception under the name of necessary ones. Their bare names might perhaps be received by most men as sufficient proof of their title to that epithet. But a legislation ought not in the minutest article to rest upon the naked grounds of prejudice. Error lurks among unquestioned propositions.

1. Courts-Martial.—Among military men the necessity of the strictest discipline is obvious to every body. Such discipline could not be maintained without military courts. All is lost, if obedience does not follow instantaneously upon command. A soldier might as well be out of the reach of command as out of the reach of instant judicature. In such a service itinerant suitors must be accompanied by itinerant judges. In such a service no one can so well judge of the importance of an order as he who gives it. While the ordinary judge was learning so much of the art as would be necessary to enable him to form his judgment, the service would be going to ruin. Happily they who command soldiers will serve to judge them, so that the nation will not, on the score of this part of the judicial establishment, be loaded with any additional expense.

2. Tribunals, if anything of that sort there be on board of vessels in private service, as surely there might and ought to be, would scarcely come to be mentioned under the head of tribunals of exception, were it not for the state of subordination into which their judgments might be put in the way of appeal, with relation to the ordinary courts. While at sea, if any jurisdiction is exercised over the class of persons in question, it must be by a tribunal of exception: for a judge cannot be on land and out at sea at the same time. While in harbour, the necessity for the tribunal of exception exists no longer; for the harbour is within the reach of ordinary justice. But in this instance nothing hinders but that the judgment given by the tribunal of exception out at sea might, when the vessel returns into harbour, be subject to review of an ordinary court. If so, that court ought, for the reasons given under the head of appeal, to be a court of pure appeal, and not an immediate court.

3. Ecclesiastical courts, in as far as their jurisdiction is confined to the maintenance of ecclesiastical discipline among ecclesiastical men, I have added provisionally to the number of tribunals of exception, merely to avoid prejudging a delicate question at an immature period. This stable will surely be taken by Hercules for the scene of one of his labours, but surely it will be the last scene. The reason grounded on the supposition of a peculiar sort of skill not likely to be possessed by ordinary judges—this reason, if not altogether so cogent in this as in the military department, is at least at a distant view as plausible. This is no place for giving that plausibility any disturbance.

4. Representative bodies and other legalized assemblies, for the purpose of preserving good order during the continuance of the assembly.—To deny an assembly a tribunal for this purpose, would be to refuse it the right of self-preservation. Without the means of quelling disturbance, and that at the very instant the disturbance was offered, it might never act, for it might be constantly disturbed. A negative upon all its acts would thus be in the power, not only of every single member, but of every idle or malicious stranger.

Cast an eye over the several heads of inconvenience which plead against the establishment of tribunals of exception in general, you will find them either apply but faintly in these instances, or vanish altogether. But any farther discussion relative to points so clear would scarcely be of use.

To these tribunals of exception, of which the committee take no notice, but which they certainly have no idea of abolishing, they add the following ones, which they either create or preserve. I mentioned, I believe, but five of them in a preceding paragraph: for the stores of such a mine were not to be exhausted by a first glance.

I.

New Tribunals of Exception, erected under the express character of Courts of Justice.

• 1. Family-Tribunal for civil cases. Tit. IX. Art. 11.
• 2. A different Family-Tribunal for penal cases. Tit. IX. Art. 12.
• 3. High-National court. Tit. XI.
• 4. Municipal Bodies, under the name of Judges of Police. Tit. XIII.
• 5. Courts of Trade. Tit. XIV.
• 6. Immediate Courts of Administration and Taxes. Tit. XV. Art 1.
• 7. Appellate Courts of Administration and Taxes, formed out of the Superior Courts. Tit. XV. Art. 4.
• 8. Appellate Mint-Courts. Tit. XV. Art. 13.

II.

New Tribunals of Exception, or Law-Offices of a particular kind, designed to block up the entrance into the Courts of Justice.

• 1. Canton-Courts, set up in the character of Reconciliation-Offices, in the way of the District-Courts. Tit. IX. Art. 4.
• 2. District-Reconciliation-Offices, set up in the way of the District-Courts. Tit. IX. Art. 4.
• 3. District-Reconciliation-Offices, set up in the way of the Department-Courts. Tit. IX. Art. 5.
• 4. District-Reconciliation-Offices, set up in the way of the Superior Courts. Tit. IX. Art. 5.
• 5. District-Directories, set up in the character of Reconciliation-Offices, in the way of the immediate Court of Administration and Taxes. Tit. XV. Art. 5.
• 6. Department-Directories, set up in the character of Reconciliation-Offices, in the way of the immediate Courts of Administration and Taxes sitting on special matters. Tit. XV. Art. 6 & 7.
• 7. Municipal Bodies, set up in the character of Reconciliation-Offices, in the way of the immediate Courts of Administration and Taxes sitting on other special matters. Tit. XV. Art. 8.

III.

New Tribunals of Exception, or Law-Offices of a particular kind, designed to smooth the road to the Courts of Justice.

• 1. District-Reconciliation-Offices attached, in the character of Charitable-Law-Offices to the District-Courts. Tit. IX. Art. 6.
• 2. Charitable-Law-Offices, attached to the Department-Courts. Tit. IX. Art. 7.
• 3. Charitable-Law-Offices, attached to the Superior Courts. Tit. IX. Art. 7.

IV.

Old Tribunals of Exception preserved.

• 1. Transit-Duty-Courts. Tit. XV. Art. 5.
• 2. Mint-Courts. Tit. XV. Art. 13.

Intercommunity, I have already observed, is not inconsistent with demarcation. It is necessary there should be boundary lines. Were there none, a plaintiff would not know from what judge he was entitled to assistance: a defendant would not know to what judge he was generally amenable: the judge would not know to what suitors his services were principally due. No man would know how far he might have to go for justice: no man could be secure of finding justice anywhere. Boundary lines once traced, it is not necessary that men should be rigorously confined within them. Convenience was the final cause of tracing them: the cause ceasing, so should the effect.

Upon the application that may be made of the principle of intercommunity of jurisdiction, depend several very essential advantages:

1. Convenience in respect of distance. In general, the court of a man’s own parish, canton, district, or whatever the division be, will be nearer to him than that of any other circumjacent one: but if not, why tie him down to it? In general, it will be more convenient to a man to stay at home, than to go elsewhere: but if business, or pleasure, call him elsewhere, why make home a prison to him? The place most convenient to the one party, is not always so to the other: when interests thus clash, it is for the less to give way to the greater. The convenience of both may point to a spot which is the home of neither: if the judge can spare them any of his time, without prejudice to those who have a preferable right to it, why should the law grudge it them?

2. Giving the greatest number the benefit of the best judicature. In England, under a decline of faculties, this facility has more than once afforded a palliative to the inconvenience of an irremovable judge.

3. Keeping up emulation among judges. Judges of the same rank, especially neighbouring ones, will be rivals for confidence. A sort of perpetual election will then be kept up, but that a quiet one: and the honour of a judge will be measured, as the profit of a shopkeeper, by the number of his customers.

The influence of the principle in this line has been thought to be not altogether imperceptible, certainly, if so, it is not, at this time of day, otherwise than salutary, in English judicature. Though probity requires causes of a more powerful texture, exertion, and the subordinate qualities of affability and good temper, may derive from a circumstance like this, no inconsiderable assistance. Shortly after the Conquest, ignorance drew at random various boundary lines of the metaphysical kind, in the upper regions of justice:* mutual fraud, spurred by sordid motives, struggled, at various periods, to overleap them: the war ended in a sort of uti possidetis, productive of a large measure of intercommunity in various quarters. If anything remains, at this time of day, of all that warfare, it is a certain dignified emulation, covered by decorum, and no otherwise perceptible than in the good qualities that flow from it.

4. Preventing conflicts of jurisdiction. When everything that is not fixed in this way by geometry, is made to follow liberty, there is no room for rapine.

I will venture a prophecy: it can be no ordinary measure of virtue, as well as good fortune, that can suffice to disfulfil it. No sooner are the committee’s magistrates installed, if peradventure they should be installed, than they will fall together by the ears. Serpent’s teeth are the seed: fighting judges will be the harvest: the metaphysical entrenchments thrown up by the committee invite attack, rather than repel it. Convenience will find them adamant: doubt and chicane will find them shadows.

The committee have gone before me in my prophecy. One of the functions of their supreme court (Tit. X. Art. 9,) is to keep repairing these entrenchments as the earth crumbles, and to quash judgments that over-leap them.

I have a singularity on this head. Quashing, the favourite pastime of English judges, has no licence from me. Nullity, the choicest instrument of fraud and chicane, is not upon my list. I care not by whom, or in what way, justice be done, so what is done be justice. In my system is neither dispensing power nor vicarious punishment. I give to no lawyer’s clerk, to no hackney-writer, a negative upon the laws. I set up in no garret, nor in any cellar, an office for selling pardons. With me, judgments are alterable or reversable, always for injustice, never for irregularity. If there be blame, I punish the author of the mismanagement, not the innocent who suffer by it.

5. Insuring the suitor against partial and suspected judicature. The suitors will have nothing left to wish for on this head, if, as often as it happens to the judge to find himself exposed to the action of any cause of partiality, weak or powerful, visible or invisible, he is not only at liberty, but bound, either to dismiss them to another near tribunal, or to disclose to them his situation, asked or unasked, that the party concerned may take his choice.

Such are the considerations which dictated the principle of intercommunity as developed in the series of provisions that form the fourth table in my draft.

The committee have their remedy for this too. If an inhabitant of Provence or Navarre has his suspicions of a judge, he has but to take a walk to the supreme court at Paris. (Tit. X. 9.) At the end of a lawsuit carried on in due form, he will get, or he will not get, a judge that he likes better: and then the lawsuit, which is to give him what he wants, or save him from what he fears, is at liberty to begin.

The institution of circuits has been spoken of as a master-piece. Great men travelling round the country twice a-year, staying two whole days in a place, and carrying justice home to the very doors of little men. What condescension! Justice at thirty or forty miles distance is certainly better than at three or four hundred. Justice four days out of the 365 is certainly better than no justice at all on any day. The worst possible plan that could be contrived is certainly four times as bad an one as this elaborate contrivance: but the most simple and most obvious, which is to put judges where they are wanted, and to let them stay where they are, is just ninety-one times as good an one.

* * * * *

English circuits, I understand, have partizans in a respectable assembly in France. What follows is a tribute of respect to those honourable gentlemen.

The denial of justice is no evil—assume but this one postulate, and you may prove that the institution of circuits, as it stands in England, has some colour of advantage.—1. It gives you no bad chance of not having a partial judge. Staying but a day or two in a county, a judge has no time to form connections in it. If country gentlemen never came up to town, and if barristers never went circuits before they were judges, nor ever went the same circuit twice after they came to be judges, they might have no such connexions. Whatever antiseptic virtue there may be in mobility, there is, happily, rather more in paucity, responsibility, and publicity, or judges would not be what they are. It gives you a cheap establishment. Send a judge to a place four days, he will cost you but a ninety-first part of what it would cost you to keep him there at the same enormous salary for 365. Keep no judge anywhere, and your establishment will be still cheaper. One thing the argument forgets: that what you save in judges, you spend ten times over in counsel and attornies. Instead of having one judge to pay for all causes, you have two or three counsel of as many different sorts, and two or three attornies, of so many different sorts, to pay in every cause. No cause but what must travel backwards and forwards between town and country several times, without reckoning appeals: and causes do not travel from thirty to three hundred and odd miles for nothing. You have a country counsel to pay, a non-travelling town-counsel, and a set of travelling town-counsel: you have a country attorney to pay, and a town attorney. This is part of what you get by not paying your share towards the expense of a country judge.

If motion be necessary to honesty, nothing hinders your putting your judges into a roundabout, so long as you put a seat into it for every county, or whatever else the division be, with a judge in every seat. Complication precedes simplicity. Invention begins in imitation. I had made a model of a roundabout for my judges—I settled my principle of intercommunity of jurisdiction, I moulded it into the form represented in Tit. IV. of my draught, and I threw my roundabout into the fire. I invite the committee to dispose of their twenty sets of tribunals of exception, in the same way. I may show, perhaps, more at length, what they will be gainers by such sacrifice. My roundabout would have cost money, for judges do not dance for nothing. My principle of intercommunity costs not a farthing. When improbity is rendered impossible, contrivances for rendering it somewhat less probable may be spared.

Another thing the argument forgets: that circuits keep defendants in criminal causes in jail, six months in some places, twelve in others, before trial. Oh! but if they had not been guilty, they would not have been put there. Perhaps so; and if so, there is no use in trying them by circuit judges. Several other things the argument forgets—that, between circuit and circuit, evidence vanishes, witnesses are tampered with, justice flies away in a pet, if a witness’s watch happen to go too slow: causes lose the best part of their features by being squeezed into a nutshell: time digs a great gulph betwixt delinquency and punishment. But what need can there be to remember more?

If you will have circuits to be good things, keep to metaphors. Corruption breeds in stagnant waters. Assume that judges are waters, and the thing is done.

Three courts, with twelve judges in them, serve, by the help of circuits, for as many jury causes as all England supplies. I will tell gentlemen how they may make twelve judges go as far in France. Enact a law that no man shall sue another for a shilling, without spending thirty pounds before he knows whether he shall get it or no, and as much more, up to three or four hundred, as circumstances may require. The last shilling I have happened to hear of as got in this way, cost the plaintiff 130 pounds, of which, however, by the help of the judge’s certificate in his favour, he got back all but the odd thirty. This shilling had nothing to distinguish it from other shillings. When you give £150 for a shilling, you may set down the exchange as something above par, according to the course of English justice. After this, let Frenchmen send to English practice for models of justice.

Do gentlemen suppose that the uses that have been found for circuits were the considerations that produced them? The interest of the individual, or the moment, produces laws in a dark age: ingenuity finds uses for them in a more enlightened one. Do they consider what it was for that circuits were set a-going? It was to enable the great tyrant to swallow up the little ones. While the feudal tree was in full bloom, and castles sprung up like mushrooms, each castle enclosed a giant, who, growling treason at the king, sat banqueting on the favourite food of giants, the blood of the people. For this delicacy he was beholden to his dwarf, who with a lawyer’s gown upon his back, sat squeezing the blood out, and conveying it into the monster’s mouth. The arch-giant, whose dwarfs, with all their squeezing, could not supply him fast enough, bethought himself at last of dispatching giants-errant to kill the little giants, that he might get their share. As these hunting giants required to be fed till they could find game, it was only now and then that such hunting parties could be fitted out. At first it was once in seven years, and this was counted a “stupendous effort of magnanimity and benevolence,” by the romancers of that time. At last it came to twice in one year, where it stands at present. The little giants were killed, but the giant-killers, instead of filling their places with good men, went on their rounds, as they continue to do to this day.

When a piece of clock-work is set agoing, and heads to look after it are wanting, it keeps on going, whether it be of use or whether it be of none. The old clock-work of revolving judges, having kept on going for so many years, is admired to this day: partly because it was of use when new, but much more because it is so old, that greatest of all merits in the eyes of lawyers.

The National Assembly of France has been charged with madness for pulling down establishments: and because they have done so, the nation, it is said, is miserable. Those who entertain themselves so much with the idea are yet, it seems, to learn, that if you would have a good house in the site of a bad one, you must pull down your bad one. Were the French legislature as careless for the moment, as the English legislature has been ever since it has been a legislature, there might be some foundation for the charge. While the local judicatures of the barons, courts subsisted, justice, such as it was, was to be had for everything. The short proof lies in the period of the first circuits: for if men could have lived seven years without justice, so might they until seventy times seven. With much ado, those judicatures were demolished. Feeling the want of them every hour, we have been sitting upon the ruins for so many centuries, without so much as a thought of rebuilding anything in their room.

Had I the honour of a seat in that house where the miseries of preparatory demolition were so pathetically expatiated upon, I could find in my heart to propose the restoration of these local judicatures. On what ground? Not under the notion of putting a period to oppression:—not under the notion of rendering it possible for the body of the people to have justice:—I feel full well the weakness of all such arguments.—No. But for the pleasure of demolishing the work of innovation, and re-edifying that most exquisite of all structures, the old English common law.

CHAPTER IV.

Tit. II. continued.—

On Courts of Appeal.

§ 1.

Plan of the Chapter.

Courts of Appeal form the subject of this chapter. Under this head, answers will be expected to the following questions:—

1. Whether any such courts are necessary, and, if necessary, on what account?

2. To what causes their jurisdiction ought to extend?

3. At what places tribunals of this nature ought to be erected?

4. How many ranks of such tribunals there ought to be erected one above another? In other words, How many degrees of appeal ought to be allowed?

5. Of what description the judges seated in such tribunals ought to be? Whether in the description of this sort of judge there ought to be any, and what difference, distinguishing him from a judge of an immediate court?

6. Whether the functions of an immediate court, and those of a court of appeal, ought in any instance to be lodged in the same hands? In other words, Whether appellate jurisdiction ought in any instance to be joined with immediate?

7. What ought to be the proportion, in point of number, between immediate courts and courts of appeal?

The answers to these questions will depend in great measure upon the inconveniences liable to result from the allowance of appeals, and upon the remedies that can be provided against those inconveniences. But the provisions by which those remedies are administered are most of them so many provisions of procedure. This consideration renders unavoidable the anticipating on the subject of procedure in some degree. Not a branch in legislature but what is intertwined with every other. Not a twig can be managed as it should be by him who does not bear in mind a picture of the whole.*

§ 2.

Grounds for the Allowance of Appeals.

Allow appeals, you suppose misconduct on the part of the judge. Suppose no such misconduct, rehearing answers every purpose.

The uses of this allowance are two: 1. To correct wrong decision, whether intentionally so or unintentionally; 2. To prevent decision intentionally wrong, by rendering the accomplishment of its purpose hopeless.

Undue decision is not the only means whereby the object of undue decision is capable of being accomplished: it might equally be so in many cases by delay,* or by suppression of evidence.†

Suppression of evidence may be effected either in a direct way, or indirectly by undue precipitation, or refusing the time necessary for the collection of the evidence.‡

Appeals, properly so called, have therefore for their necessary adjuncts: 1. Complaints of delay; 2. Complaints of suppression of evidence: of which latter a particular modification is, 3. A complaint of undue precipitation, productive of a suppression of evidence.∥

It is evident, therefore, that a court of appeal, in order to answer the purpose of its institution, requires to have cognizance of the several sorts of complaints just mentioned. It will be found equally true, that it can require a cognizance of nothing more.

The institution of appeals is not merely useful to the two purposes that have been mentioned; it is absolutely necessary to both those purposes: neither the superintendence of the public eye exercised through the medium of publicity, nor the establishing of responsibility, civil or criminal, on the part of the judge, nor both these securities put together, can supersede to either purpose the necessity of appeals.

As to publicity, the virtues of it are transcendent; but they are not all-sufficient. 1. They are manifestly insufficient to the correction of undue decision, whether intentionally wrong or unintentionally: they are even insufficient to the prevention of it. Whatever security they may afford against a want of probity, they afford none, no immediate one at least, against a want of intelligence. They tend unquestionably to increase the measure of intelligence, in as far as intelligence is the fruit of exertion: but in this way their efficacy is unhappily precarious, as well as slow: they will render him who has talents more careful to improve what he has; but they will not absolutely give talents to him who has none. Neither can the security they afford against want of probity, powerful as that security is, be depended upon as being in all circumstances proof against all temptation. The sophistry of the passions may flatter a man with the hopes of eluding the scrutiny of the public eye: the violence of the passions may steel him against the public censure: there are treasures, in competition with which reputation itself may appear to have lost its value. It was not for want of publicity to guard it, that the virtue of Appius sunk under the shock it met with from the beauty of Virginia.

The security which responsibility alone, to whatever extent it be carried—the security which responsibility, civil or criminal, affords against undue decision, is equally short of the mark. Against unintentional error it is nothing: to this cause of undue decision it never can apply. Render a judge liable to answer, though it were with his fortune only, for a mere error in judgment, that is, for an opinion different from that of him who is to judge over him; no man, unless perhaps a man of desperate fortune, would take upon him the office of a judge. The mere weakness of the intellectual faculties is what you can never punish: you can punish for no misconduct in which you cannot charge the will with having had in some way or other a share: you may punish for improbity; you may even punish, so it be lightly, for mere want of attention well demonstrated; but for mere want of natural talent you can never punish.

Against even intentional misconduct in this way, the efficacy of punishment alone is almost equally uncertain and deficient. Innumerable are the occasions in which mischief may be done—infinite is the mischief which may be done, in this line, without leaving any traces of such criminality as punishment can lay hold of. Innumerable are the instances in which, lest you should punish blameless error or excusable inattention, you will find yourself obliged to let go inexcusable guilt. The efficacy of legal punishment in this way, though capable of greater strength than that of the censure of public opinion, is still more limited in its extent. Ignominy will scent out many a lurking-place to which punishment can never penetrate.

Add publicity and legal responsibility together, still; without appeal, the measure of security is incomplete. Expatriation will save a man at once from the gripe of punishment, and from the sting of ignominy. Expatriation, though to some an intolerable punishment, is to others a pleasure. Expatriation for an ignominious cause would indeed, to a judge, be a loss of salary, as well as of reputation. But how often may it not be in the power of a wealthy delinquent to afford to a judge an indemnification more than equivalent for the loss of salary, as well as for every other inconvenience of expatriation? especially if the judge, through misfortune or misconduct, should happen at the time of the temptation to find himself straitened in his circumstances. And the sort of judge whose virtue stands exposed is, it must be remembered, of the lowest rank, and commonly in circumstances assorted to that rank. A delinquent, with a hundred thousand pounds in his pocket, is under trial for a crime, the legal consequences of which would absorb his whole fortune: a sacrifice of half of it would be a gaining bargain. Who shall say that no judge, and that in the lowest rank, shall ever be found, who would prefer such a pitch of opulence in a neighbouring country, to hard duty and a moderate salary in his own?* How often in England might not a supposition of this sort be realized by the plunder of the East!

True enough it is, and not undeserving of remembrance, that were it not for the security afforded against intentional misconduct, the benefit to be reaped from the institution of appeals, as a corrective to unintentional error, would hardly pay for the expense. The only considerable mischiefs liable to flow from the latter source, might be cured by other means at a much cheaper rate. The utmost mischief that can result from a single decision so circumstanced, abstraction made of the influence that decision may have upon future ones, is of small account. Whether it shall or shall not in that way cast any prejudicial influence, depends upon the legislature. If it was the matter of fact only that was in question, no such influence can have place: if it were the matter of law, a word from the legislature is sufficient to put a stop to it. Of a decision on the point of law, the effect is, to declare what on the point in question is the will of the legislature. If the declaration be right, there is no error in the case: if wrong, a false law is given as to that sort of case, instead of the true one. But it is the fault of the legislature, if laws that are none of theirs are suffered to be given under their name. A committee of revision, to watch over the interpretations given of the acts of the legislature by the courts of justice, and to report such as appear to have erred from the mark, that their influence, as to the future, may be stopped, is a remedy equally commodious and indispensable. For a committee of this sort some work is already found by Articles 11, 13, and 15, of Tit. I. in my Draught.*

§ 3.

Inconveniences of Appeal, with their Remedies.

If courts of appeal were any thing less than necessary, the institution would, it is evident, be far from eligible. Expense to the public is interwoven with the establishment: expense and delay to the suitor, and thence frequently a failure of justice, is inseparable from the proceedings. Institute more ranks than one, the measure of these inconveniences is increased in a great degree, though not absolutely doubled, at each rank. In what places courts of this sort ought to be set down, and thence how many ranks of them, in a country like France, there ought to be, are questions that will meet us farther on. Thus much in the mean time is evident, that the efficacy of the remedies that can be found for these inconveniences is a consideration by which the number of these courts to be provided, and the stations to be allotted to them, connot but be influenced in a considerable degree: a general view of these remedies must not therefore be omitted here. In all the established systems, large tribes of causes are excluded from the benefit of appeal, on consideration of the expense. Is the exclusion a necessary or justifiable one? To this question no answer can well be given, till after consideration had of the reductions that are capable of being made in the expense.

All the inconveniences above mentioned must have place, in a greater or less degree, although appeals were never to be preferred any otherwise than bonâ fide; that is, accompanied with a sincere persuasion of right, and suggested by a pure desire of justice. To such only can the institution propose to itself willingly to give admittance. The misfortune is, that, along with bonâ fide appeals, malâ fide ones will be liable to slip in: appeals in the preferring of which a man is conscious he is in the wrong, and which he prefers with no other view than that of gaining some undue advantage. Allow this privilege, you must expect to see it oftentimes made use of to no other end than to the staving off the evil day, when satisfaction is to be made or punishment undergone: you must expect to see it made use of for the sake of loading the adversary with expense, and what by the delay, and what by the expense, producing a failure of justice. Such are the uses which you may be sure will be made of it, in as far as ignorance or negligence has left room. To the list of remedies against the inconveniences of appeals in general, must therefore be added another list of remedies, calculated to prevent not only the inconveniences resulting from, malâ fide appeals, but the appeals themselves.

First Remedies against the Inconvenience of Appeals in General.

1. At the head of the first of these lists, may be placed the establishment of the maxim, that the appellate court shall receive as grounds for its judgment, no other documents than what have been submitted to the observation of the court appealed from.

This maxim is in a manner a necessary consequence of the use and definition of an appeal. An appeal supposes error on the part of the judge appealed from: suppose no such error, there is neither ground nor use for it. A rehearing would have been the more simple and equally effectual remedy. But it is no error in a man, not to have profited by documents not within his reach. Add any one document whatsoever to those which he had before him, his judgment might have been altogether different. Under such circumstances, judgment in appeal would be correction where there has been no mistake.

From this maxim, if steadily adhered to, result several capital advantages:—

It gives liberty to choose the fittest situation for the court of appeal, with little or no regard to distance. Were a set of witnesses to have to travel five or six hundred miles upon every sixpenny cause, from an immediate court at Perpignan to a court of appeal at Paris, or a judge of appeal to travel from the judgment-seat at Paris to the abodes of the witnesses at Perpignan, the grievance would be intolerable. But when all there is to convey is a parcel of papers, when once they are put into the post, whether they have sixty miles to go or six hundred, makes in comparison but little difference.

It saves the expense and delay of a repeated collection of the evidence. By the virtue of this single rule, the burthen is thus reduced almost a half.*

The operation of this fundamental measure of economy may be made to receive considerable assistance from several subsidiary provisions.

2. Transmission of the record† from the court below to the court above, by the post, and that gratis, and without passing through mercenary hands.

3. Power to either party to take the judgment of the court above in the first instance, upon mere view of the record, without argument; but without being precluded from the right of arguing, if the decision given on the mere view of the record be not satisfactory.

4. Like power, upon subjoining to the record a written argument.

An appellant or respondent may by this means take two chances, if he pleases, for a decision in his favour, before he puts himself to the expense of engaging an advocate to plead vivâ voce at the court above. The decision not to be conclusive against either party, till he has been at liberty to be heard by an advocate; but to be conclusive against him in the first instance, if he has availed himself of that liberty.

In all this there is no expense but the mere copying of the record; an operation which the appellant himself might be allowed to perform, if he were able, and thought it worth his while. I mean, except an advocate be employed: and then there is no need of an attorney. The pursuer or defender-general, as the case is (see Tit. XI. and XII. of my Draught,) at the court above, upon the fee’s being paid to the corresponding advocate-general at the court below, may be charged with the transmission of it to the professional advocate. Whether this advocate be employed in the metropolis, or in a country town, need, in point of expense, make little difference.

5. Interdiction of all appeals from interlocutory orders; in other words, from decrees other than definitive, on any other ground than that of irreparable mischief: as if the effect of the interlocutory order complained of would be an irrecoverable deperition of indispensable evidence. It is evident that where an interlocutory order would be attended with any such effect, it stands upon the footing of a definitive decree.

From an interdiction of this sort, no prejudice to justice can arise. If, notwithstanding the interlocutory order complained of, the definitive decree is such as the complainant would have wished, the appeal would have been of no use: if otherwise, it is then time enough to appeal; and one appeal at that ultimate stage answers every purpose of twenty appeals at so many intermediate stages. Well or ill grounded, appeals from interlocutory orders are therefore equally useless.

In the case of a complaint of delay, or a complaint of suppression of evidence, the maxim forbidding the admission of fresh documents cannot, it is true, be adhered to.

In the case of delay, the very foundation of the complaint is, that no documents at all have been collected by the court below, or at least not enough to form a just basis for decision.

In the case of suppression of evidence, the complaint is, that certain documents which ought to have been collected, and without which the collection would be incomplete and fallacious, have not been collected.

In both these instances the grievance is, that documents which ought to have been submitted to the observation of the court below, have not been: so that, were the appellate court not to receive as grounds for its judgment any other documents than what at that stage of the cause have been submitted to the observation of the court appealed from, its judgment must be ill-grounded.

In these cases, then, one of three things must be done: the court above must itself interpose, and collect the deficient evidence, or it must reimpose that task upon the court appealed from, or it must transfer it to some other.

1. To employ the first expedient would be employing the court of appeal about the business of an immediate court; a confusion of powers which, as we shall see more particularly a little farther on, would be attended with several inconveniences:—1. It would necessitate the institution of courts of appeal as near to the several scenes of action, and consequently in as great number, as the immediate courts. 2. It would occasionally surcharge the courts with an extraordinary load of business. 3. It would deprive the suitor, as to so much of the proceedings, of the benefit of appeal. 4. It would enable the judges of appeal to make approaches to arbitrary power, by swallowing up the functions of the immediate courts, and substituting in the room of an authority subject to appeal, a power exempt from that controul.

2. Committing to the judge appealed from, the business of repairing his own errors, is what certainly may be done, if no fault of the will, no improbity, no proud or capricious pertinacity, is attributed to him. But the great necessity for instituting appeals and complaints of this nature results, as we have seen, from the danger of a vice of this sort that might otherwise introduce itself into the character of the judge. This resource can never therefore be trusted to as the only one.

3. There remains that of giving the commission to a judge of some neighbouring court. This is an expedient free from all objections, and forms but one out of many instances of the application of the principle of intercommunity of jurisdiction, the advantages of which have already been represented. (See Chap. III.)*

The less the expense of the proceedings in the courts below, the less heavy will the small portion of expense which we have found to be inseparable from the business of appeal, press upon the suitors. The following sketch will afford a glimpse of the means that may be employed for reducing the expense in the first instance:—

1. Abolition of all law taxes, as proposed by the committee. See Tit. I. Art. 5, Committee’s Drought.

2. Abolition of all court fees—of all dues paid by suitors to persons employed by the public in the administration of justice. This also seems to be proposed by the committee. Ibid.

3. Confinement of the expense of mercenary law-assistance to the instances where it is absolutely necessary, by the admission of unmercenary. See Chap. I Observations on Tit. I. Art. 20, New Draught.

4. Reduction of the expense of mercenary assistance, where it is necessary, by the abolition of the distinction between advocates and attorneys. Ibid. Art. 21.

5. Abolition of the expense of taking mercenary opinions, by obliging the judge to give a categorical opinion in the first instance upon a state of facts agreed upon by all parties interested, and an hypothetical one upon a state of facts disputed on any side. Ibid.

6. Termination of the cause at the same hearing in which it commences, whenever it happens to be ripe for decision at that period: as it will be, if the parties attend in person, and the cause rests solely upon the evidence of the parties, or upon such real evidence, or the evidence of such witnesses, as they happen to bring with them, or upon the mere question of law, or upon all or any of these grounds. Ibid.

7. Clearing the cause, by mutual admissions, at that early period, of all facts on each side which are not meant to be contested on the other:—another consequence of the joint appearance of the parties in the first instance in presence of the Judge. Ibid.

8. Clearing the cause of all false allegations, the truth of which he who makes them has no real hope of being able to make good, and of all proof relative to such allegations:—another consequence of the personal appearance of the parties, speaking upon oath. Ibid.

9. Confining the quantity of delay granted to the quantity absolutely and honestly requisite for each particular purpose in each particular cause:—another consequence of the personal appearance of the parties, speaking upon oath, and of the avoiding to lay down general rules of procedure relative to time. Ibid.

10. Facility given to the compromising of the cause in that stage, with the advice and assistance of the judge, if it be a case fit for compromise. Ibid.

11. Reduction of the expense of the attendance of witnesses, by powers for the examination of them each in the court of his own territory, so far as confrontation is not necessary: and for appointing confrontation, where necessary, at the court where it can be performed at least expense.

12. By confining the territories of immediate courts to such an extent as admits of witnesses and suitors attending in court during the juridical day, without being obliged to sleep elsewhere than at their own homes.

13. By managing the business of examination of witnesses in distant courts, by instructions sent from court to court gratis, by the post, without the necessity of passing through mercenary hands.

14. Saving of the delay of waiting for parties or witnesses lying under a temporary inability of personal appearance, by powers for admitting them to correspond with the court in writing, in the style of an ordinary letter, and, though under the sanction of an oath, without the obligation of calling in mercenary assistance to put it into form: or else requiring the judge to examine them at their own homes, according to the importance and urgency of the case.

15. Reduction of the expense of copying, with regard to sundry sorts of papers, such as acts of the parties and of the court, by providing concise and printed formularies for every such paper, as far as the case admits, settled by the legislature, and furnished at the public expense.

16. By measures to be taken to prevent any body’s having an interest in adding unnecessarily to the bulk of such instruments as do not admit of settled formularies.

17. Transmission of law-papers in general by the post, carriage free, from court to court, through the judge, or one or other of the public advocates, without passing through mercenary hands.

Second Division of Remedies against the Inconveniences of Appeal—Remedies for the prevention of malâ fide Appeals.

I. In civil cases:

1. Execution notwithstanding appeal, on finding security.

This salutary expedient is made use of by the committee, though only in certain instances.

2. Allowing extra interest upon the value claimed, payable of course, but susceptible of being remitted, upon certificate of opinion, on the part of either judge, that the appeal was a bonâ fide one.

Confine the quantum of interest to the ordinary rate, you give a dishonest suitor the power of borrowing money at that rate of a man who does not choose to lend it him—of a man whom he has injured. What can be more iniquitous, or more encouraging to iniquity?—allowing under-interest, or no interest at all, in the manner of the English law.

There are cases where, in this way, after fighting the plaintiff with his own money, a defendant is secured in the quiet possession of a considerable part of the remainder. The profit allowed by the law to be made in this way is in proportion to the quantum of the capital the defendant has in his hands; that is, to the enormity of the injury the plaintiff is suffering from the want of it. The sorts of appeals called writs of error have seldom any other object.

3. Obliging the unsuccessful party to reimburse to the successful one the amount of his costs, in course, subject to reduction in case of certificate of bona fides, as above.

4. Refusing the appellant the liberty of employing a mercenary advocate on the appeal, but on the terms of transmitting, together with the fee for his own advocate, a fee to equal amount for an advocate to be chosen by the respondent. The condition liable to be dispensed with, where the pecuniary circumstances of the former are eminently and notoriously inferior to those of the latter.

If one man could get a better chance for justice than another by paying money to the Judge, who would not cry out against the iniquity? But is there less iniquity in allowing justice to be put up to auction in this manner, for the benefit of advocates?

A fee that is not too much for the appellant’s advocate, cannot be too much for the respondent’s: for the record which contains all the instruction they either of them ought to have, is one and the same to both.

Objection.—You destroy all emulation, all motives to exertion, on the part of the advocates at the appellate courts.—Answer. The necessity of exertion is produced as effectually by the superior chance of obtaining fees, as by the superiority of fees. What extinguishes emulation is, not limitation of profit, but monopoly.

5. Obliging the party at whose instance evidence, deemed impertinent by the judge, is notwithstanding collected, to advance the costs on both sides of so much of the proceedings: such part of the costs not to be refunded to him, though the cause should be decided in his favour.

6. Allowing the plaintiff, of course, a satisfaction for so much of his time as has been consumed in the course of the cause; subject to abatement in consideration of bona fides on the part of the defendant, or of the state of pecuniary circumstances on both sides.

7. Allowing the defendant satisfaction for time thus consumed by unnecessary proceedings carried on at the instance of the pursuer, though the latter should gain his cause.

The fifth and seventh of these expedients are calculated to prevent vexation, as well on the part of a plaintiff as a defendant. In general, mala fides will at least be fifty times as frequent on the part of the latter, as on that of the former: for the great demand for compulsive justice is produced by the defendant’s unwillingness to comply with the demands of justice, or his inability to comply with them without inconvenience: cases of doubt are comparatively but rare; and if doubt were all, everything would be done by arbiters; there would be no need of judges.

As the defendant has nothing to gain by a decision, and everything to lose, it is his interest to prevent a decision, whether he be or be not in the right, unless the law has taken care to make it otherwise: whereas the plaintiff has nothing to hope for, as far as benefit to himself is his only object, but from a decision. But the heart of man has affections in it, of the dissocial kind as well as of the self-regarding; and views of mere vexation may instigate the pursuit of an unjust or frivolous claim, as well as the non-compliance with a just demand, if no remedy is provided. A small latitude in this way will be sufficient to lay the poor at the mercy of the rich. If one man, by spending from a hundredth to a hundred-thousandth part of his own fortune, can be the destruction of another’s, malice or the lust of dominion may purchase gratification at a cheap rate. The English law, by the matchless enormity of the artificial burthens it has thrown upon justice, and the ingenuity it has shown in their distribution, has insured this gratification to every man who can afford to give a handsome price for it. In doing so, it has conferred on every man an arbitrary power over every other man less favoured than himself by fortune: a tyranny which nothing has prevented from being intolerable, but the influence of public opinion—that sacred power, against which English judges, by the laws they have made in matters of libel, wage undissembled war, and which, from the days of Lord Coke to the present, they have never ceased doing their utmost to destroy.

II. In penal cases:

1. In case of pecuniary punishment, adding interest from the time of the sentence in the immediate court.

As to the committee, they too have their contrivances for keeping down expense. In one court, causes are to be carried on without writing;* in two others, by nothing but writing:† and from these opposite causes the same good consequence is to follow. They have another expedient for preventing expense; which is, to say there shall be none: but the expedient, being a choice one, is to be produced but rarely.‡ In this place, I must beg a word with the committee. So, then, it is you that we have to thank, and not nature, for whatsoever there is oppressive in the expense of justice? A word from you would ease us of it altogether: and this word, except in the instance of two sets of courts out of about five-and-twenty, and in them only in a few inconsiderable cases, you refuse to speak for us. Look over your list of law expenses: take any article in it you please: either it is preventible or unpreventible. If unpreventible, how can your saying there shall be no expense, save the expense? If preventible, why will you not prevent it?

To make the more sure of having no expense, they will have no form of procedure in these cases.

In this place lurks another confession, not less valuable than the former. The form of procedure they mean to give us, being of the regular, and not of the summary kind, I pronounce, very summarily, to be good for nothing. Rash will they call me, for thus speaking of their work? No; I am obsequious: for such is their own opinion of it. Else why deny men the benefit of it in any single instance?

Is it that truth is material in one sort of cause, immaterial in another? material, when the money is due upon a contract; immaterial, when it is due on the score of taxes? Is it that the system is good for finding out truth in the one case, and not so in the other? That your system is good for nothing in one case, I prove by yourselves, for you are ashamed to use it: that, being so, it is possible it should be good for anything in any other, lies upon you to prove.

Whence all this inconsistency? I have put the question. I will give the answer.

General prejudice dictates general rules: private importunity squeezes in exceptions. The careless and submissive suffer; the refractory grumble, and get relief. Such is the general history of the creation of laws. Expensive justice is what gentlemen have been used to. Justice, of course, is in general to be expensive. I see them going the rounds of their five-and-twenty sorts of courts, with a waggon-load of it in their train, dropping a budget of it at each court. In other places, all well: but when they come to their court of administration and taxes, they hear grumblings. Heyday! what is all this for? what do you do with your budget here? What! do you think we will be saddled with it? Nay, good gentlemen, dear gentlemen, all a mistake, a mere mistake, if you will believe us—the budget was not meant to have been left here—say no more, gentlemen; you shall see no more of it.

Do they think to get off so? They are mistaken. There is a voice that shall follow them through all their courts, and cry out in every corner, Away with your budget! None of your burthens here!

§ 4.

In what Causes Appeals ought to be allowed.

In what? The simple answer is—in all. It is not less just than simple. For where is that cause which may not give birth to error? Where is that cause which may not, by some unfortunate coincidence, furnish inducements to prevarication? The principle of intercommunity of jurisdiction, and the sort of confessional in which I have placed my judge, might be sufficient, in my own opinion, to protect his virtue: but so long as more are to be had, it is not two nor twenty strings that should be deemed sufficient for the legislator’s bow.

Two considerations have been relied on as grounds of difference: importance and difficulty. The more important the cause, the greater the mischief, in case of wrong decision: the more difficult the cause, the more probable that mischief. Neither are sufficient:

I. Not importance; and that for several reasons.

1. Importance in causes varies not between class and class, but between individual and individual. Classes may be picked out in which you may be sure of finding importance in every individual instance:* but none can be picked out, in which you are sure of finding none. With regard to pecuniary concerns, this has already been shown to be the case. There the vulgar reckoning has been shown to be doubly in fault, in supposing the existence of unimportant causes, and in attributing the least importance to those which possess the most. Yet it is in the pecuniary class that unimportant causes should be to be found, if anywhere.

2. If importance sufficient to call for appeal is not wanting in the least important sort of civil cause, still less can it be in the least important penal one. Pure from mala fides, a slight injury is of slight importance. Envenomed by that alarming accompaniment, the most trifling one becomes serious. It betokens an affection which, if neglected, might prove an inexhaustible mine of all sorts of injuries. Pounds are made of farthings: leave farthings unprotected, you leave pounds in the same case. Gutta cavat lapidem. Sprinkled on a man’s head by the hand of undesigning nature, a drop of water is but a drop of water: multiplied by the malice of cruel man, it creates what is said to be one of the most excruciating of tortures. In corporal injuries, then, as well as pecuniary, importance rises and falls not more between class and class, than between individual and individual. Thus shallow is the policy which, under pretence of aversion to litigiousness, refuses to look at injuries till they have ripened into crimes.

3. Degrees of importance, if any such existed, would require metaphysical lines to mark them: and all such, we have seen, are naught.

II. Difficulty is a ground equally insufficient: for, in point of difficulty, too, the variation is not between class and class, but between individual and individual.

Where should the line be drawn?

1. On the point of law? But who shall say, beforehand, in what quarter there shall be obscurity in the penning of the law, and in what quarter there shall be none?

2. In the unwritten law? Obscurity is indeed of the very essence of that supposititious kind of law: but who shall draw the line betwixt its lightest and its darkest shades? Sooner might the obscurity be dispelled, than the degrees of it marked out and circumscribed.

3. In the point of fact? But who shall say in what sorts of causes there shall be obscurity of evidence, and in what others there shall be none?*

But were it even as easy to draw the line between unimportant and important, between plain and difficult, as it is impossible, what pretence can there be for depriving of the benefit of a revision the plainest and least important cause, after the view that has been given of the facility of reducing the expense of a decision in the first instance to so moderate a scantling, and that of appeal, on the side of the respondent, absolutely to nothing? (See § 3.)

These considerations have not found favour in the sight of the committee. To the mercy of their canton judge they commit without controul fifty livres at a time;† almost a third part of a Frenchman’s annual expenditure:‡ a sum equal to 666,000 livres in the first class of income. Single as he is, I cannot reconcile myself to this judge. I have looked at him again and again, and I can see no bridle in his mouth. Singleness in a judge gives tightness to a good bridle, but it will not do instead of one. I see him busying himself among the peasantry, like king stork among the frogs. His good-men-and-true, whom the committee have given him for company, may croak tales of him if they please, but they can do no more: they are no less helpless than their brethren. He is required to take their opinion: but what is opinion against will?

To the mercy of the five judges of their district court, or of any three of them, they commit more than a year and six months of a man’s expenditure;∥ a sum more than equal to 3,333,000 livres in the first class of income.

To the mercy of their high national court they trust the lives and fortunes of the whole nation, in I know not what new and undefined cases; and this not only without the check of appeal, but without the check of any kind of responsibility, civil or criminal, in case of prevarication: trusting to the title of high, to the name of jurymen, and to the inexhaustible virtues of numbers, as a security for good judicature. But of this a little farther on.

§ 5.

To what Place Appeals ought ultimately to be carried.

May the line of appeal stop in different parts of the kingdom, or must it be carried on from all parts to a common centre? To a common centre; and this for two reasons: 1. To get the best public that is to be got; 2. For the sake of uniformity. Both these reasons concur in fixing upon the metropolis for that common centre. The metropolis has the best public: the metropolis is but one.

Simplicity on the part of the law; certainty, facility of being known, understood, obeyed, inspected, and improved, all concur in manifesting the importance of uniformity in the constructions put upon it. From diversity results uncertainty: and uncertain justice and no justice are the same. At Orleans a general law of property has been construed one way; at Chartres, another. What follows? That, as far as the diversity extends, nobody knows what is his own, what another’s, at Orleans, at Chartres, or anywhere else. One man claims the ritual of Orleans; another, that of Chartres: and the judge, without committing himself in the smallest degree, may give the thing to which of them he pleases.

I hear objections:—

1. “The necessity of uniformity in legislation does not,” it may be said, “require a common centre in judicature. It is by a detachment of the legislature, by your committee of review, that you propose everything for the insurance of uniformity should be done. But this being one body, and that seated in the metropolis, why might not the line of judicature end anywhere else?” That it might do so, without absolutely giving up the point of uniformity, is not to be denied. But I see considerable disadvantage in such an arrangement, and I see no adequate advantage. Seated in the metropolis, the courts of appeal will be under the eye of the committee of review, and under the eye of the same public by which that committee, and the assembly from which it emanates, are themselves inspected. Scatter the ultimate courts of appeal up and down the country, it would be a separate work to collect together in the metropolis the reports of their decisions, and a separate expense. In different places, this branch of duty might be discharged with different degrees of punctuality: from one place, reports might come in speedily, from another, tardily; from another, not at all. Send all appeals up to the metropolis at once; punctuality is placed under the guardianship of private interest: each appellant, in sending the record up to the court of appeal for judicature, sends it within reach of the committee of review, in readiness for whatever use they may think fit to make of it in the way of legislation.

In point of expense of conveyance, nothing is gained: nothing worth reckoning, though the records were to stop at the proposed courts of appeal in the provinces; for, as already observed, when once a packet is in the post, whether it stops at a country-town, or comes on to Paris, makes in this respect but little difference: still less, when they must all come to Paris at the long run, or the object of uniformity be given up.

2. “The demand for uniformity,” it may farther be objected to me, “extends, according to your own showing [§ 2,] to no other decisions than those which turn upon the point of law.” True: but since all decisions of this nature must come up to the metropolis, why not the others with them? The separation would produce diversity and complication to no use. The separation, too, supposes the distinction between the point of law and the point of fact to be understood by everybody: unfortunately it is the very thing that is understood by nobody. It being too much for judges, it being too much for legislators, juries are to be set up to make it: and by their superior skill and experience all difficulties are to be overcome.

3. “In point of publicity at least,” it may be said, “nothing will thus be gained. The public at the metropolis is, it is true, a better one than could be had in any one country-town, or in several country-towns. But is it better than is to be had in all of them put together? The breaking down the superintending part of the public into fractions too small to be respectable, is an inconvenience you yourself point out as resulting from the multiplication of tribunals of exception.” [Ch. III.] I answer—This will depend in some measure upon the number of the towns in which the ultimate courts of appeal in question would be placed. Shall we say sixteen? That would be a great many. But are there any sixteen towns in the kingdom, of which the population put together would equal that of Paris? I doubt it. But laying aside this intricate consideration, I resort to a much shorter one. Placed in the metropolis, the courts of ultimate appeal, be the number of them what it may, will naturally be collected under one roof, or at least under a very few. Being courts of appeal, and not of immediate jurisdiction, there is no reason why they should not. But it is in proportion to their importance that causes stand in need of the public inspection, and it is in the same proportion that they are likely to get it. The best public will naturally go to the most interesting cause; and the most interesting and the most important are the same. But on the least important cause, no judge can make sure for two minutes together of not having a public sufficiently respectable to show him the rod of censure hanging over his head.*

§ 6.

No Intermediate Appeals.

Appeals, then, there ought to be in every case, as many in one as in another, and in every case to the metropolis. So far we are arrived. Ought there to be any, and what number, of intermediate ones allowed elsewhere?

Unquestionably not three: not four degrees of jurisdiction. This is surely more than any one could propose designedly: whatever the committee may have done undesignedly, and under other names.

1. Take two, and what would be the consequence? Sometimes to settle men’s opinions: sometimes to unsettle them. If the two courts of appeal concur in condemning the decision of the immediate court, it is well: so, if the ultimate court agrees with the immediate court, condemning the intermediate court of appeal: in both cases there is the weight of two opinions against one: and let that of the ultimate be supposed of more weight than that of either of its subordinates. But let the intermediate court approve of the decision of the immediate one, and the ultimate condemn both. On which side shall public opinion fix itself now? On the one side, number; on the other, weight: but who shall adjust the pre-eminence between weight and number?

2. Is rectitude of decision the object?—Having got the best chance for it at the metropolis that is to be had anywhere, what more could you have anywhere else? In the metropolis you get the best public, the best judges, the best advocates: the best securities of all kinds, as well for probity as for intelligence. What use of any intermediate degree? It would be only botching a better judicature with a worse.

3. Can it be the saving of time? Not that, surely. What you save upon the single appeals will be more than spent upon the double ones.

4. Can it be the saving of expense? Delay and expense are linked together: the expense is doubled at least, as certainly as the time; and with it, the advantage of the rich over the poor, and thence the danger of a denial of justice. Minute indeed it would be at the worst, after the reductions above pointed out, in comparison of the measure hitherto accustomed, but still that little would be doubled.

5. Nor should the evil of complication tell for nothing: delay would be doubled; expense to suitors would be doubled; expense of the establishment would be doubled; complication would be more than doubled. Three degrees of jurisdiction give, as has been just seen, variety of results: you must ring the changes upon them, and provide laws for all the changes. Complication is no objection to necessary laws: for, if it were, it would make an end to all laws: but it is a fatal one to all unnecessary ones.

Intermediate courts, if anywhere, would be in the provinces: for it is distance that affords the most plausible plea for the interpolation. Plausible it may well be termed; for, were it not for the maxim, Nothing above but what has been exhibited below, it would be irresistible. Fresh evidence supposes fresh attendance: and how few are the purses that could bear the expense of travelling from the circumference to the centre of the French empire? But for this, wealth would enjoy undisturbed the monopoly of justice. But for this, you must in the provinces have many courts of appeal, that each may be near; and in the metropolis you must absolutely have none; for if personal attendance of parties and witnesses is necessary in any one rank of courts of appeal, by the same reason is it in every rank, if there were half a dozen of them. But the nearer you have them to men’s homes, the more you increase the danger of local partialities: unless you make them so numerous that the remedy afforded by the principle of intercommunity of jurisdiction may be resorted to without inconvenience. The metropolis is not only in no neighbourhood with the provinces, but in no neighbourhood with itself: in such a throng, contiguity creates no source of partiality, no bond of connexion, scarce a channel of intercourse.

An obvious middle course is, the giving these interpolated intermediate courts to the remote provinces, and not to the near ones: but this, to the mischiefs which have been just shown, would add those of inequality and further complication. If the additional degree is an advantage, why deprive a man of it, only for living near the capital? if a burthen, why saddle him with it only for living at a distance?

“The distant provinces,” it may be said, “will lie under a disadvantage: justice with them cannot, after appeal, be quite so speedy as in the nearer ones.” Lament the inconvenience as much as you please: but if you cure it, it will be by a worse. This is a price which justice pays for security against foreign injury: this is a price which distant parts must pay for belonging to a large whole. One comfort is, that the limits of the inconvenience are not to seek: about three weeks delay in the remotest corner: advance from thence, it diminishes, till at last it vanishes. It confines itself to penal cases: for in civil ones, the maxim of execution notwithstanding appeal, dispels it. And even in penal cases, what do you lose by it? A slight and questionable advantage, suggested by a theory which could hardly have meant to apply to such a case: the advantage of bringing punishment into contact with delinquency. Where witnesses are numerous or distant, it is unattainable: where attainable, it is dangerous. From precipitation may arise injustice, and that irreparable: from the delay in question, the worst that can happen is I know not what speculative difference in point of impression between a punishment inflicted this day or this day three weeks. Delay interposed between delinquency and the exhibition of the evidence, as under the English circuits, is a real grievance: for the marks of truth may vanish in the meantime, and at any rate the colours of it will fade; but the delay here does not come in till after the complete exhibition of the evidence. Seldom indeed will defendants complain of it: for in at least ninety-nine cases out of a hundred, it will have their mala fides for its sole cause.*

If the opinion of the committee, as given in Tit. XI. of their plan, were to decide, the question would be at an end. Not only one appeal is sufficient, but none at all is necessary. Appeal is unnecessary in the most important class of causes, and these, if not more difficult than others, at least not less so: can it be more necessary in cases of less difficulty and importance? Appeal is unnecessary in the causes which they attribute to their high national court. True it is, that this is the finest court that ever was made: a court with five judges in it under the name of judges, and fourscore and three other judges in it under the name of jurymen. But if the reasons I have given under the head of numbers are worth anything, the court is just so much the worse, and so much the less to be depended upon, for all this finery. Instead of being eighty-eight times as good as a court with a single judge in it, it is eighty-eight times as bad: I mean, on the score of numbers only: besides its particular vices, with which we have nothing to do here. True it is, on the other hand, that, in causes comparatively of no moment, they give five or six degrees of appeal, nominally or virtually, in short, in the common run of causes. But why do they so? It remains for them to tell us.*

§ 7.

Of Judges of Appeal.

What sort of persons should judges of appeal be? Persons who enjoy a still higher measure of the people’s confidence than their brethren. Of this superiority in point of confidence, there are two very simple proofs: length of service, a presumptive one: frequency of election, a positive one.

A judge of appeal ought, therefore, to be taken, not from among new men, but from judges of the immediate court: under that limitation, he ought to derive his title from the immediate choice of the people. What more conclusive titles to superiority, what other proofs of superiority, can be derived from any other source? He has been selected from among the select: he has twice received the most unequivocal declarations of the confidence of the people, and of the advantage he possesses in that respect over all concurrents.

On a first election, the proof of superior confidence cannot, it is evident, rest precisely upon this ground. Judges of all ranks being to be chosen together, you can neither have experience, nor repeated approbation testified upon experience. You must put up with a simple preference expressed by a superiority upon the poll.

§ 8.

Appellate Judicature ought not to be united to Immediate.

1. If the same court acts in both characters, one of two absurdities must ensue:—Either there is a reciprocity in this respect between two courts, or there is not. If there is, what do you gain by your appeal? The two courts stand upon the same footing in point of confidence. The first opinion is not wider from the second, than the second is from the first. “The one,” say you, “the one, as coming after the other, is maturer than the other.” So would it equally in case of a rehearing before the same judge, which would take less trouble.†

If there is no such reciprocity, what is the consequence? Useless profusion, or denial of justice. If one out of a set of immediate courts has time to spare for the business of a court of appeal, all the rest have time to spare for idleness: you pay them for their whole time, and you get but half of it. If it has no time to spare for this additional business, one or both businesses must be left undone.*

“Oh, but,” say you, “out of all the immediate courts, we will take that, for our court of appeal, which has the least business upon its hands.” If so, so much the worse. The Court which has the least business upon its hands, is the court of the least-peopled and of the worst-peopled territory; of the territory which has the smallest capital town: it is the court, of all others, which gives you the worst public, and the most peregrination. Such, then, is the dilemma: a court of the most business is least able to accept of the additional charge: a court of less business is less fit for it.

All this supposes intermediate courts of appeal and split jurisdictions, as upon the committee’s plan. Upon my plan of universal competence and no intermediate courts, a junction of this sort, without reciprocation, would be impossible. To give the same man immediate jurisdiction in every thing, and appellate jurisdiction in everything, would be to take away appeals, and leave nothing but rehearings.

2. Keep the two stations separate, you gain a collateral advantage: the superior becomes a fund of reward for merit manifested below. The nation has thus, upon my plan, a treble hold upon its inferior line of judges. By the punishment of forfeiture, it secures itself against criminal misbehaviour: by the faculty of amotion, against unfitness short of criminal: by the power of promotion, it holds out encouragement for extraordinary merit. It offers to declining years an honourable retreat from a course of more active service. Courts of immediate jurisdiction must be often ambulatory. Where evidence is immoveable, either the judge must go to the evidence, or justice lose the benefit of it. Such is the case where bed-ridden witnesses are to be examined; houses, lands, or other immoveable objects, to be viewed.†

§ 9.

Number of Appellate Courts, in proportion to that of Immediate.

Upon the plan of intermediate provincial courts, this topic of inquiry, however intricate, would have been a necessary one. Keep to metropolitan courts, and the difficulty is at an end. Set up, at a venture, a few to begin with. If a demand arises for more, add them one by one, as they are wanted. Calculation, with regard to proportional numbers, is a matter rather of curiosity than use.

The sketch given in § 3, of the expedients for reducing the evils of litigation, may be worth attention in this view. The quantity of time requisite for dispatching the business liable to come before a court, will depend partly upon the quantity of time demanded by each cause, partly upon the number of causes. In the former way, the reduction effected by the plan of summary justice may be expected to be very great. Of malâ fide causes, nineteen perhaps out of twenty would either be strangled as soon as born, or destroyed in embryo by despair. The latter would be the certain fate of all malâ fide appeals in civil causes. The expedients levelled against malâ fide causes and appeals would act with no inconsiderable effect against rash ones. In penal ones, especially in the higher classes, the reduction would be inconsiderable. On the other hand, bonâ fide causes, and those exempt from rashness, would multiply in a proportion perhaps equally large. All whom poverty and the iniquity of expensive procedure had excluded from justice, would now be flocking in for their share.

The case is the same with bonâ fide appeals: though the means of explanation and instruction, thrown open by the removal of the wall built up by lawyers between the suitors and the judge, might here too be expected to effect a considerable reduction. The introduction of so many new laws, the ambiguous, half-dead, half-living state of so many of the old, and the clashing of old with new, must under any system of procedure be a great and sudden cause of increase, though happily a temporary one. But the searing of the heads of the hydra of unwritten law will operate as a gradual cause of reduction, in proportion as Hercules advances in his career. Bonâ fide disputes, relative to matters of fact, remain the indestructible patrimony of mercenary lawyers, and the incurable, though very tolerable distemper, to which the utmost improvement of the laws can afford no remedy.

§ 10.

Historical Sketch.

If at the top of a long ladder of appeal you happen to meet with justice, thank fortune, rather than wisdom or benevolence, for the prize. Anarchy and despotism joined in setting up the ladder, little heeding where it led. For every link in the feudal chain, there must be a degree of jurisdiction; at least a tendency, if possible, to make one. Tribunals within tribunals grew necessarily out of sovereignties within sovereignties. Subjection was the object and the final cause: peace and justice were collateral and unintended acquisitions: if the people were ever to be kept quiet, it was for the reason honestly given in the language of the old English law—that the monarch might not suffer disturbance by their noise.* Look to Germany, where feudality is in all its beauty, you will find exemption from appeal the privilege, not of the people, but of the chieftain: usurped by powerful, usurped from weaker ones.

In ancient Greece and ancient Rome, the feudal cause being wanting, the feudal effect did not exist. Appeal you find in plenty: but seldom, if ever, more stages of it than one. So it strikes me upon recollection: but to what purpose the research?

Under the English chaos, to speak of appeals with tolerable accuracy, would require a volume. Simple objects admit of simple descriptions: take complication for your theme, truth must be sacrificed to simplicity, or simplicity to truth. In some instances, no appeal at all: in others, three or four degrees of jurisdiction where there is as little need of it. In many instances, whether there shall be more or fewer appeals, depends not upon the nature of the cause, but upon the mode of its commencement. Many appeals which have not the name:† as indeed, in general, appeals there have not that name.

In general, the ground of appeal pretends not so much as to have anything to do with the merits. Decisions grounded on the merits, and decisions which, though equally legal, have nothing to do with the merits, is a distinction familiar as any in the whole circle of the law: and a counsel says, with equal simplicity to the judge, My argument does or does not turn upon the merits. The appeals that are frequently taken away, are the appeals upon the merits: appeals from a bad public to a better one: from less learned to more learned magistrates.‡ The appeals that are carefully preserved, are those from one side of Westminster-hall to another: from four judges to four judges, or to nine or ten judges of the same class and standing: from the pure judicatures of the judges, so called, to the worst constituted of all judicatures except the House of Commons, the House of Lords.∥

Along with appeals, so called or not so called, you have in various shapes the favourite resource of pretended tenderness and real oppression, a suit carried through in order to know whether a suit shall be begun;§ a long series of proof, on which no decision can follow, except a decision that proof shall or shall not be exhibited over again: a cause tried in the worst way possible,¶ in order to know whether it shall or shall not be tried in a better: inquiries carried on in the dark,** in order to know whether prosecution shall be begun against a man for a crime, six months after he has been in jail for it.†† One might fill pages in this way: but to what purpose drudge on further in the mine of precedent without principle?

CHAPTER V.

Tit. III.—

Of Judges of the Ordinary Courts.*

§ 1.

Appointment—Continuance in Office—Power and Rank.

Art. I.—A [judgea ] (principal) shall be elected by the electors chosen by the active citizens of the territory, over which he is to be [judge,a ] in the same manner as a member of the administrative body of that territory: parochial [judgesb ] excepted, of whom in Tit. VII. and metropolitan [judges.b ]†

Art. II.—On the first election, to be eligible to this office, a man must be seven-and-twenty years of age, and must have exercised the functions of a man of law for three years, in a superior court, or for five years before an inferior tribunal.c

Under the denomination of men of law, are comprised, for this purpose—1. Judges of every description. 2. King’s advocates and attornies, and their substitutes. 3. Advocates. 4. Attornies. [5. Secretaries of Courts? Greffiers?] [6. Notaries?]

Art. III.—No vacancy in any [judicial officed ] but the lowest shall be filled, but out of the same rank of [judgesb ] or that next below: but [judgesb ] in those ranks all over the kingdom are alike eligible.

Art. IV.—No vacancy in the lowest rank of [judgesb ] principal shall be filled but by some one who has served in the station of [judgea ] depute permanent, and that for at least [three] years, on elections posterior to the year [1793.]

Art. V.—The [judgea ] principal of every court (except the parish [or canton] court, and the metropolitan), shall hold his office for life, unless divested of it in one or other of the following ways:—

1. Resignation.

2. Forfeiture, judicially pronounced.

3. Amotion, pronounced by the suffrages of a majority of the whole number of the electors, entitled to vote at the last preceding election, general or particular, holden for the choice of a magistrate, or of a member of the administrative body of his territory.

4. Amotion, pronounced by a majority of the whole number of members of the administrative body next in rank above that of the territory of which he is [judge.a ]

Art. VI.—By amotion, without forfeiture, a [judgea ] loses his rank as such, but not his salary, nor the capacity of being re-chosen, even immediately.

Art. VII.—e Every judge, for the enforcement of his decrees judicially given, has, in case of necessity, the command over all persons, without distinction, within the bounds of his territory, the king only, and judges of equal or superior rank, excepted.

Art. VIII.—When a [judge,a ] in the exercise of his function, goes out of his own proper territory into another, he takes his [rank and powerf ] with him, subject only to the [rank and powerf ] of the co-ordinate and superior [judgesb ] of that territory.

Art. IX.—e A judge principal shall have precedency of all persons over whom he has power, as according to Art. XI.; a judge of appeal taking place of a judge of immediate jurisdiction for the same territory, and judges of the same court, according to the priority of their appointment.

Art. X.—gJudicial duty ought not to be neglected for any other. Acceptance of a judicial office vacates every other, judicial or not judicial: and acceptance of any office not judicial, vacates every judicial one. Much less shall a judge exercise any other profession, such as that of notary, advocate, or attorney. This extends to judge-deputes permanent, but not to judges natural, of whom in Tit. V.

Art. XI.—[A judge ought to stand clear of offence, and of suspicion of partiality.h ] No [judgea ] shall give his vote at any election; nor use any means, direct or indirect, to influence the votes of others.

§ 2.

Pay.

Art. I.—The expense of the salary of an [instituted judgea ] of the parish court shall be defrayed by the parish:

[Of a canton-court, by the district:]

Of a district-court, by the district:

Of a metropolitan court, by the nation.

Art. II.—On the [NA day] preceding the day of election, an auction shall be held before the directory of the administrative body of the territory charged with the expense of the salary, under the name of the patriotic auction: at which the candidates shall be at liberty to attend, in person or by proxy, in order to declare, each of them, what he is willing to give, if anything, to the common fund of the territory, in the event of his being elected to the office. And thereupon the office shall be put up by the president, each bidder being at liberty to advance as often as he thinks proper, in the manner of a common auction.

Art. III.—As soon as it appears that no candidate will make any farther advance, each shall give in an undertaking in writing, in which shall be specified what he binds himself to give, in the event of his being elected.

Art. IV.—At the same time each candidate shall give in an inventory of his estate, as well in possession as in expectancy, together with all charges thereupon, with an estimate of the clear value thereof in ready money: the whole being signed by the candidate himself, and verified by his oath.

Art. V.—At the same time each candidate shall give in a paper stating his pretensions, of what nature soever, on which he grounds his hopes of being chosen, such as his age, the time during which he has acted in the capacity of a man of law, in what branch of the profession, before what courts, and the like; and such paper shall also be signed by the candidate himself, and verified by his oath.

Art. VI.—The above inventory may either be open, or sealed: if sealed, the declaration of its verity, concluding with the signature, shall be on the outside: and it shall be reserved unopened till the event of the election is declared: at which period, if he whose act it is should prove the successful candidate, it shall thereupon be broken open; if not, it shall be returned to him unopened.

Art. VII.—The above-mentioned undertakings and declarations shall forthwith be printed together on the same paper, and a copy given to every elector [NA] days before the election.

Art. VIII.—If, the election having fallen upon one of the bidders, he should fail in complying in any particular with the terms of his engagement, his right to the office shall thereupon cease: and upon a vacancy declared by the competent court, at the instance of the procurator-syndic of the administrative body, a new election shall be decreed: but time may be allowed him for performing his engagement, or an equivalent accepted by the court on his application, the procurator-syndic being heard on the other side.

Art. IX.—The penalty, in case of falsehood in a declaration given in as above, shall be, if the falsehood were wilful, forfeiture of the office, together with the purchase-money, if any were paid: if the falsehood happened through inadvertence coupled with temerity or negligence, a discretionary fine.

Art. X.—From the salary of every [judgea ] shall be deducted [25] per cent. upon the interest of the capital representing his private fortune: yet so as that the remainder shall not be less than [one fourth] of the whole: unless in as far as any farther deduction may have been comprised in the undertaking he has delivered in.

Art. XI.—In the case where, his salary not having undergone the utmost deduction of which it is thus susceptible, any accession happens to his fortune by succession, donation, or bequest, to the value of [12,000] livres or upwards, he shall, within [half a year] after effects to that amount have been received, give in a supplemental declaration of the particulars of such accession: and, upon an account settled with the officer who stands charged with the payment of such salary, a proportionable deduction shall take place, from the day when such supplemental declaration was given in.

Art. XII.—The contribution offered at the auction may be either in ready money, or in any other shape: and in particular, it may be in the shape of a release of the whole, or any part of the appointed salary; and in this case, the deduction prescribed by Art. X. shall be understood to be included: but no offer shall be deemed valid, which would reduce the income of the candidate below the amount of the appointed salary.

Art. XIII.—On the day when the successful candidate is sworn in, and previously to his being sworn in, any member of the corporate assembly, before which he is sworn in, shall be at liberty to put to him all such questions as may tend to ascertain the truth and sufficiency of the several declarations he has given in: and whoever exercises the functions of procurator-syndic, is specially charged with this duty, and responsible for the neglect of it.

Art. XIV.—That time and opportunity for scrutinizing the accuracy of the inventory above mentioned may not be wanting, the [judge electa ] shall not be sworn in till [NA] days after it has been broken open, nor till [NA] days after it has been published in [the newspaper most current in the place.]

Art. XV.—In case of amotion without forfeiture, the salary paid shall be the appointed salary, without deduction: and any contribution that has been given in consequence of the patriotic auction shall be refunded, but without interest.

Art. XVI.—In case of resignation, the contribution shall in like manner be refunded, but no salary continued.

§ 3.

Attendance.

When Injustice sleeps, Justice may do the same.

Art. I.—The [judgment-seati ] ought never to be empty, during any part of the juridical day, throughout the year: in an immediate court, never: in a court of appeal, never where there is any cause on the paper, ripe for hearing.

Art. II.—The juridical day shall be of [twelve] hours: viz. from [eight] to [eight,] allowing only [one] hour within that time, viz. between [two] and [three,] for refreshment. This extends not to the judges termed natural.

Art. III.—A [judge immediate,k ] when absent from the fixed judgment-seat upon out-duty (as upon a view or the examination of a sick person,) ought to take care that it be filled, if possible, by some [judgea ] depute permanent or occasional; on pain of being responsible for the failure.

Art. IV.—A [judge’sl ] salary shall be reckoned by the day, and paid him every [week] by [the paymaster:] it shall be paid him nowhere but upon the [judgment] seat; or, in case of sickness, in his own apartment: a day’s pay being deducted for every day of absence, otherwise than upon duty; except vacation-days which he is allowed to take, [sixty] in the course of the year, at his choice: provided that the [judgment] seat be not at any time left vacant.

Art. V.—The day’s pay thus to be received shall be a day’s pay of the appointed salary: the difference, if any, between that and the clear salary remaining after the contribution furnished, according to § 2, shall be made up by quarterly advances, which the [judgea ] shall make on [the usual quarterdays] to [the paymaster;] nor shall he be reimbursed any deficiencies occasioned by unallowed days of absence.

Art. VI.—Declaration to be taken by every [judgea ] every time he receives his salary:—

I, A. J., solemnly declare, that since the last time of my receiving salary, I have not at any time, during juridical hours, been absent from the duty of my office, except during the following days, viz. [NA;] nor absent from the [judgment-seat;] except the following days, when I was out upon duty, at the places, in the causes, and for the purposes following, viz. [NA]

Art. VII.—A copy of every such declaration, signed by the [judgea ] shall, on the same day on which it was made, be hung up in a conspicuous manner near the judgment-seat, there to remain till the next quarter-day.

Art. VIII.—A [judgea ] is to be understood to have been absent from duty on any day, if, in the course of that day, he has not sitten at least [one hour]; and if, during the rest of the day, he has not been within [an hour’s] call of the judgment-seat, except when out upon distant duty: word being left with [NA] where he was to be found.

Art. IX.—[Judgesb ] of immediate courts are also bound to go upon duty, in cases of necessity, at all hours, in manner hereinafter specified.

§ 4.

Oath of Office.

Art. I.—The following oath shall be taken by every [judgea ] upon his entrance into office. While pronouncing it, he shall stand up before the judgment-seat, in open court, with his left hand on his bosom, and his right lifted up to heaven:—

I, A. J. being raised by the choice of my fellow-citizens to the office of [NA], do solemnly promise and swear—

[Art. II.m —1. That so long as I continue in possession of my said office, I will, to the best of my ability, administer justice to all men alike, to high and to low, to rich and to poor: not suffering myself to be biased by interest, or by indolence, by hope or by fear, by favour or by aversion towards any individual, or class of men, or party in the state.]

Art. III.—2. That I will not endeavour to keep secret, but on the contrary study by all suitable means to render public, the proceedings belonging to my office, in all cases in which the law ordains them to be public.

Art. IV.—3. That I will keep secret, to the utmost of my power, the proceedings belonging to my office, in as far as the law ordains them to be secret.

Art. V.—4. That I will not on any account, out of the regular course of justice, give ear to, but indignantly reprove, any application that may be made to me concerning any cause, in contemplation of its depending or coming to depend before me, much less give any opinion or advice relative thereto: and that, should any such application be made to me in writing, I will forthwith produce and read the same in open court, although it should be contained in a private and confidential letter.

Art. VI.—5. That I will at no time accept any gift or favour that shall have been offered to me, in the view either of influencing or recompensing my conduct on any particular occasion in the discharge of the functions of my office: and that, in case of my suspecting any favour to have been done or offered me with any such view, I will forthwith declare and make public my suspicion: nor will I knowingly and wittingly suffer any such offer or recompense to be made, on any such account, to any person dependent upon or connected with me; but that, on suspicion of any such offer or recompense, I will forthwith make public such my suspicion, together with the grounds thereof, and the names of all parties concerned.

Art. VII.—6. That I will not, on the occasion of any pecuniary or other bargain, directly or indirectly avail myself, or endeavour to avail myself, of the influence or authority of my station, to obtain any advantage to myself or any other.

Art. VIII.—7. That I will not take any part whatsoever in any election: nor use any means, direct or indirect, to influence the vote of any other: excepting only the public statement of my pretensions according to law, on any election in which I shall myself be candidate.

Art. IX.—8. That I will not willingly absent myself from duty, except to the extent of the time allowed me by the law, or in case of unavoidable necessity, resulting from sickness or otherwise: nor then, without making the best provision in my power for keeping my place supplied.

Art. X.—9. That I will, as far as depends upon me, give to every cause that comes into my hands the utmost dispatch that shall appear to me consistent with the purposes of justice: nor will Im put off any cause, or give to any cause the priority over another, but for special reason publicly declared.

Art. XI.—10. That I will at no time, through impatience or otherwise, knowingly cause or permit justice to suffer by undue precipitation: and, in particular, that I will not bestow less attention upon the cause of the poor than of the rich: considering that where small rights are seen to be contemned, great ones will not be deemed secure; and that importance depends not upon nominal value, but upon the proportion of the matter in dispute to the circumstances, and its relation to the feelings, of the parties.

Art. XII.—11. That I will not, through favour to those who profit by the expense of the administration of justice, connive at, much less promote, any unnecessary expense: but on the contrary study, as much as in me lies, to confine such expense within the narrowest bounds compatible with the purposes of justice.

Art. XIII.—12. That I will not, through impatience, or favour to the professional advocate, show discountenance to him who pleads his own cause, or to him who pleads gratuitously the cause of his friend, but rather show indulgence, and lend assistance to their weakness.

Art. XIV.—13. That I will, in all things touching the execution of my office, pay obedience to the law: and thatn I will do my utmost to carry the same into execution, according to what shall appear to me to be the intent of the legislature for the time being: not presuming to set my own private will above the will of the legislature, even in such cases, if any, where the provisions of the law may appear to me inexpedient; saving onlyo the exercise of such discretionary suspensive power, if any, with which the legislature may have thought proper to entrust [me.p ]

Art. XV.—14. That I will not either make or revoke any appointment of a depute, permanent or occasional, with a view to favour or prejudice any suitor otherwise than according to justice, but for the common convenience of suitors, and only to the extent of the number which shall appear to me requisite to that end.

All these engagements I hold myself solemnly pledged to fulfil, by all the regard I owe either to the displeasure of Almighty God, or to the indignation and contempt of my fellow-citizens.

Art. XVI.—A copy of the above oath, printed in the largest type, and on one side only of the paper, with the signature of the [judgea ] at length to every clause, and at the end the date of the day when signed, shall be kept hung up in a conspicuous situation near the [judgmentq ] seat, so long as he shall continue in office.

§ 5.

Deputes.

Art. I.—The duty of the permanent [judgea ] depute shall be to take the place of his principal, and with the same [powers,f ] whensoever the principal shall happen to be absent from duty, or preoccupied therein.

Art. II.—The [powerf ] of the [judgea ] depute permanent shall last as long as his principal continues in the same office, and until a vacancy in the office is filled up: unless the appointment be sooner revoked, which it may be at any time, or terminated in any of the ways in which the office of a judge principal may be vacated.

Art. III.—To the station of [judgea ] depute permanent, no emolument of any kind shall be annexed; except a habit of office to be worn while on duty, and a mark of honour to be worn at all times during his continuance in the station: and in rank he shall take place next his principal.

Art. IV.—A [judgea ] principal is civilly responsible for the acts of his deputes, permanent or occasional, having recourse to them for his indemnity: also criminally, in case of his concurring with, or barely conniving at, any behaviour known to him to be criminal on their part.

Art. V.—A [judgea ] depute permanent shall pronounce and sign the same oath as a [judgea ] principal, and in the same manner: excepting only the words [permanent or] in the 14th clause; and making the requisite change at the commencement relative to the style of office.

Art. VI.—A permanent [judgea ] depute is bound to the same attendance as his principal: except that he is allowed half as many vacation days in the year again (taking them only when his principal is upon his duty), and that he is not liable to be called to night duty while his principal is in the way.

Art. VII.—Attached in like manner to the office of [judgea ] principal, shall be in the power of appointing occasional [judgesb ] deputes for the purpose of performing duty in any particular cause, or relative to any particular point in any particular cause.

Art. VIII.—To the function of occasional [judgea ] depute shall belong neither emolument nor permanent honour: but for distinction sake, he may wear, while on duty, a medallion, or other such mark of office.

Art. IX.—An occasional [judgea ] depute shall, previously to the first time of his taking upon him that function, pronounce and sign, in the presence of the judge who appoints him [an oath the same as the above, mutatis mutandis:] and entry of his having done so shall forthwith be made in the register-book of the court.

Art. X.—A permanent [judgea ] has in like manner, and under the same responsibility, power of appointing occasional [judgesb ] depute. But it is to be expected that he exercise it only in case of necessity, and for the reason that such appointment cannot be made by the [judgea ] principal: and such appointment is at any time revocable by the [judgea ] principal.

Art. XI.—Any person having exercised the function of judge-depute, may, by either of the bodies to whom the power of amotion is attributed by § 1, Art. V. be incapacitated from exercising within the limits of their respective authorities, the like functions in future: but such incapacitation may be revoked at any time, either by the same authority, or by any to which it is subordinate.

Art. XII.—As often as any act is done by or before a [judgea ] depute, either permanent or occasional, mention shall be made as well upon the face of the act, if written, as upon the register-book, by or before whom; and if in the instance of a [judgea ] depute occasional, by whom appointed.

Art. XIII.—Care ought to be taken to avoid, as much as conveniently may be, the shifting of the same cause to different [judges,b ] unless when the points of which they respectively take cognizance, happen to be totally independent of each other: that [the judge who gives judgmentr ] may be as little as possible under the necessity of taking the grounds of his [opinions ] at second-hand, from another man.

§ 6.

Responsibility.

Art. I.—The punishment of a [judgea ] for misbehaviour in relation to his office, may be to all or any of the effects following:—

1. Injunction to be more circumspect in future.

2. Suspension from office.

3. Deprivation.

4. Incapacitation for any office, or for certain offices.

5. Fine.

6. Imprisonment.

7. Obligation to make satisfaction, in the way of pecuniary compensation, or otherwise, to the party injured.

8. When the effect of the misbehaviour has been to produce death, or any other corporal suffering, on the part of any one, in the way of punishment, or otherwise; such offence, if unaccompanied with evil conscience* [mauvaise foi], shall be punished as if committed with the offender’s own hands.

Art. II.—Judges, pursuer-generals, defender-generals, and their respective deputies, being privy to any misbehaviour, accompanied with evil conscience, on the part of each other, and not informing in due time, are punishable, as for connivance.

OBSERVATIONS.

§ 1.

Power of Amotion.

Popular Election, Power of Amotion, Permanence of Situation in as far as is compatible with that power, Permanence of Salary notwithstanding amotion, Power of Deputation, Gradual Promotion, and the Patriotic Auction—all these principles are so many parts of one whole: each of them is necessary or useful in that character: most of them have, besides, their separate good effects.

1. Without power of amotion, the people’s right of election would be very inadequate to its end. By whom should offices be filled? By those who have had their confidence? No; but by those who have it. Join the power to the right, every instant a man continues in his place is a fresh proof of his fitness for it. Withhold the power, what would the right amount to? What the right of conferring Starosties amounted to in the hands of the king of Poland—the right of converting patronage into a nursery of ingratitude.

2. On this occasion, as on all others, popularity is to be considered as a solid and substantial good, unpopularity as a solid and substantial evil, independently of all considerations of good and ill desert. Two properties are indispensable on the part of a magistrate of this sort: that he be a good one, and that he be thought to be so. Without he be so, he will hardly, it is true, be thought so long: but so long as it is possible to be in either case without being in the other, better he should be thought to be good without being so, than be so without being thought so. A judge may be bad in a thousand respects: he may be corrupt or ignorant in the extreme, and yet, so long as his corruption or his ignorance do not transpire, no very material suffering may ensue from it: let him be generally thought so, whether he be or be not so, is a matter of small moment, otherwise than to his own conscience. An alarm, an opinion of insecurity, equally general, is the necessary consequence: and where there is no opinion of security, as well might there be no justice. Insecurity unapprehended is but a latent source of contingent misfortune to the few: insecurity perceived or supposed is a fund of actual and present uneasiness to the many.* Possessing the confidence of the people, then, is the first requisite in this line: deserving it, is but a secondary one. This in England is one of the great arguments for juries.

Fit or unfit to make the choice in the first instance, the propriety of the people’s possessing the power of amotion will be equally indisputable. The danger is much greater of their failing in the right of choosing, than in the exercise of the power of correcting a bad choice. The right they will have to exercise before trial; the power, not till after trial: the right they may make an improper use of, without either cruelty or injustice; the power they cannot make an improper use of, without incurring both those imputations. Give them the power of amotion, the same source affords the mischief and the remedy: deny it them, the mischief of an unfortunate exercise of the right of choosing remains without remedy.

3. It concerns the reputation of the people, it concerns the general reputation of their fitness to bear a part in government, that a door should be left open, and that as easy a one as possible, to the correction of any mistakes they may chance at first to fall into, especially at the outset of their career. The people have their ill-wishers: the people, not less than individuals, have their enviers, who will not be unvigilant in discovering, nor unindustrious in magnifying and trumpeting any such mistakes. To pronounce them miserable, and to wish to see them make themselves so; to prophecy evil, and to wish to see the prophecy, however calamitous, verified; are propensities unhappily but too nearly allied in human nature. Their power, like that of individuals, must depend upon their reputation: and those who wish well to the one cannot be too careful of the other.

On this occasion, as on so many others, mark well the excellence of popular government, and the solution it affords to difficulties which under any other would be insuperable.

Lodged in any other hands, the power of amotion would be tyrannical and full of danger: the exercise of it would seldom deserve to command the confidence of the people, and still seldomer command it. Arbitrary power on the part of the censor would reduce to the condition of tools and slaves those who had the misfortune to be subject to the censure: what they did for justice’ sake, would be attributed to fear: they might as well be corrupt, since they would be as unpopular as if they were.

When the question as to the disposal of power is only between individuals, or bodies of men, not dependent upon the people, a known policy is, not to lodge the right of nomination and the power of amotion in one and the same hands. Why? Because whatever were the causes of a man’s making a bad choice, pride and self-love would join with them in preventing his making a better. Against the people, this policy has no ground to stand upon. Upon the people, especially upon a people voting by ballot, those passions have no hold. The persons called upon to correct the mistake, will not be numerically the same with those who made it. Society in error would relieve them under the uneasiness of shame: but the secresy which covers their acts would save them from so much as feeling it. The people are accordingly as noted for their readiness to recognise their errors, as kings and other individuals in high office have been for their averseness.

If you will not give the people both, better deny them the right of election than the power of amotion. In what respect is the right of any value to them? Only as a means of lessening the danger of such a choice as would give them reason for wishing they had the power. Of what use to them to have the filling of the station with a man who possesses their confidence at the time, unless it be that they may pitch upon one who will continue so to do? But will he? That is the question: upon the inducements that are given him, depends the answer. To an individual, the right of nomination has quite another value: it is patronage; it is homage, flattery, services of all kinds, marketable, and unmarketable; it is whatever sort of sugarplum the grown child finds most to his palate. To the people as a body, it has no such properties: they have no pride to gratify, no personal interest to pursue. Individuals among them may have; but in as far as they have, their interest stands opposed to that of the collective body: and the object of the laws on this head should be to smother such affections, not to pamper them.

Unpopularity out of the question, remedies will be requisite against the several species of unfitness, to the existence or imputation of which unpopularity may owe its birth, as to its most natural, as well as only rational, causes. All these would afford so many distinct grounds for the institution of this power, under any system, and in whatever hands the power were thought proper to be lodged: whether it were given to the people, or to persons out of their dependence; and whether in the view of securing their contentment and repose, or under any fantastic notion of fitness without reference to that end. In these several cases it must be considered in the double character of a cure, and of a preventative. Where it would seem most harsh as a cure, the power of applying it in that character is not the less necessary, since upon its capacity of being so applied depends its power of operating in the character of a preventative.

1. At the head of these species of unfitness stands improbity. I mean here that lesser or more questionable measure of improbity that would elude the grasp of punishment. Forfeiture is no remedy: for the distinction between forfeiture and the power of amotion is, that the former can only be applied judicially, that is, upon specific and conclusive evidence, and in the way of punishment. But a judge may have lost all character a thousand times over, and even be universally deemed guilty in a thousand specific instances, without its being possible to find evidence for punishment to fix upon.* Appeal is no sufficient remedy. Appeal administers a corrective in each particular instance: but, besides that the corrective applies not to judges of the highest rank, amotion may be necessary to effect a radical cure, when the demand for a repetition of the corrective becomes so frequent as to be troublesome.

Under the reign of unwritten law, there are two cases in which a judge, under the single condition of keeping his own secret, may decide which way he pleases, and give the most corrupt affections the fullest gratification: one is, where past decisions clash with each other; the other is, where they clash with reason. In the English law, would it be difficult to find examples? The difficulty would be rather to avoid meeting with them. If improbity has so seldom taken this advantage, thank the men, or thank publicity; but do not thank the unwritten law, and least of all the legislator, who sits with his hands before him in view of such a nuisance.

2. Next stands the want of intelligence; and especially where it has a decline of faculties for its cause. In a failure of justice, the degree only is material; the cause no otherwise than as it influences the degree. The power of amotion is still more necessary where blameless incapacity, than where improbity, is the cause. Improbity may bring a man under the law of forfeiture; and a sure effect of it is to excite indignation, and provoke men to call for the execution of that law. Blameless incapacity, especially where it is the result of age, has the contrary effect of exciting compassion, and disposing men to forget the interest of the public in their sympathy for the individual. Here, then, comes in one use of the permanency of salary notwithstanding amotion.

Age will not draw the line: one man’s faculties serve him better at eighty than another’s at threescore. The last person to acknowledge them deficient, will commonly be the man himself. They will be good enough for other men’s business, when they suffice no longer for his own.*

3. Thirdly may be mentioned harshness and ill-humour:—the failings that stand opposed to the minor virtues of affability, patience, and condescension. Ill-humour tends to precipitation: and the variety of ways in which precipitation may operate injustice, have been already stated:† a man might as well judge without documents, as not allow himself time for considering them, and giving them their due weight. Harshness and ill-humour tend to injustice in another way: by intimidating the suitor, preventing him from displaying his case to its best advantage, and thus sacrificing the modest and the timid to the bold and resolute; those who have the best title to favour, to those who have least need of it. It is rather difficult to conceive a judge, unexceptionable in other respects, removed for this single cause: but it is still more difficult to conceive that, with the power of amotion hanging over his head, a man should in this way expose himself to the exercise of it; especially when the injuring his prospect of promotion would, in every rank but the highest, be a still more certain consequence.‡

4. Under the general term of hastiness lurks a particular vice in judicature, that has scarcely yet obtained a name—a sure sign that the importance of the opposite virtue has never been noticed as it deserves. It consists in the judge’s taking for his sole object his own private satisfaction relative to the merits of each question and the rectitude of each act: not staying to inquire of himself whether the whole proceeding, if spread open before the public exactly as it took place, would wear the same face of propriety in the public eye. He makes up his own mind: and what other people may think about the matter, is what he forgets or disdains to ask himself. His own mind is made up—and those of other men, if they will be impertinent enough to intermeddle, are left to make themselves up as they can. It is by this faculty of annihilating the public, and putting self into the vacancy, that some men have got a name, by trying causes, as if for a wager, against time: so many causes within the hour; as men of inferior ambition run miles, drink pots of beer, and ring bob-majors. Under a system of judicature in which, after six months spent in doing nothing, the longest cause is squeezed into a day, and as many as a province can afford in half a year into two days, this talent, so long as it confines itself to the theatre which thus calls for it, is neither without its apology nor without its use: and admiration is divided between the master that can see such work done, and the workman that can go through with it. But under a rational system, all these modes of self-satisfaction would be ranked together, with no other difference than what the effect upon public satisfaction may prescribe. To the good effects of the power of amotion, may therefore be added the natural tendency it has to put a check upon velocity in judicature, having such forgetfulness for its cause. Should a judge look upon his own satisfaction as everything, and that of the people as nothing, they, with somewhat better reason, may look upon his as nothing, and their own as everything. But a judge amenable to the people, and removable by the people, will know better than to put them to the trial. The sort of instinct created by an habitual sense of interest, will teach him upon the bench, what reflection and investigation may teach the philosopher in his closet—that apparent justice is everything, and that, in the civil branch at least, real justice, except as productive of apparent, is of no use.

“Oh, but independence! What becomes, at this rate, of your judge’s independence?” What care I? The thing necessary to a judge is probity: and probity, we have seen, is the result, not of independence, but of its opposite.—“What, then, is independence, after all, of no use?” Oh, yes: of great use, under a despotic or corrupt constitution; and, for the same reason, of worse than none, under a sound and popular one. In the former instance, it is independence that has received the praise, but in every instance it is dependence that has earned it. Independence is a relative term: according to the object you refer to, so is your doctrine about independence true or false. Independence, as against individuals, is favourable to probity. Why? Because it leaves a man more dependent than he would be otherwise on the opinion of the people. Independence, as against a despot, is favourable to probity. Why? Because it not only allows a man to obey those influences which strengthen the bands of his dependence on the people, but obliges him: for under a despot, the strength of the people is the only prop that independence, as it is called, can have to lean on. It is dependence, then, dependence in the true and absolute sense of the word, that is the cause and measure of that relative quality, which has been so much magnified under the name of independence. Is independence, true and irrelative independence, favourable to probity? Then so is despotism: for, what is such independence but despotism? Independent would you have your judge? Of whom? Of a despot, doubtless. But why? only that he himself may be one? If a despot had nothing amiss about him, where would be the harm of being his tool? When you fly to independence for protection, what is it you are afraid of? Is it not despotism? and do you think to save yourself from it, by running into its mouth? What mean you by the word despot? What, but a man on whom others are dependent, while he himself is independent of every one? On a judge, all men are dependent, as far as they are subject to his jurisdiction. Have you made him on his part independent of every one—independent of the people? He is then the very thing you mean by a despot, or the word despot has no meaning. Is your despot to make a good judge, merely because there is nobody above him, or on one side of him, to make him otherwise? Nero, Caligula, Commodus, and Caracalla, would then have made good judges. Set a man above the people, let him be above caring for what they think of him, indolence alone, without any other tempter, is quite enough to make him an abominable judge: he will come upon the bench constantly drunk, as in former days English chancellors have done every now and then: he will hear a cause between sleeping and waking, and, as he opens his eyes, yawn out, Judgment for the plaintiff, or Judgment for the defendant, as the one or the other phrase happens to come uppermost: he will order the traveller to be hanged instead of the highwayman, and then laugh at the mistake.

Under the former government in France, the courts of judicature called parliaments were as independent as anything could be under the shadow of an arbitrary sceptre. What came of the independence? Good and bad at the same time: good, as far as it was dependence; bad, as far as it was independence: good, as far as it was independence with reference to the monarch; bad, as far as it was independence with respect to the people. Virtue and courage, derived from legitimate dependence, made them the heralds of the States-General; corruption, derived from the dream of independence, made them rebels to the National Assembly.

“What, then, would you make your judge the sport of every gust of passion which may overbear for a moment the reason of the people?” No, certainly: and I take care he shall be so in no case. But why not?—That he may be independent of their opinion? No, surely: but that his dependence on it may be the more genuine and the more secure. Individuals or bodies, speak of their opinion, what mean you? The opinion of the moment? No: but the opinion of their lives. Their opinion in a storm? No: but their opinion in fair weather. The opinion that has been stolen from them by the lie of the day? No: but the opinion that succeeds it, when time and detection have condemned the lie of the day to silence. Speak of the opinion of a body, what mean you?—The opinion of a smaller part of it, or of the majority of a moment? No: but of that majority which keeps the field and governs. It is for this cause amongst others I preserve the salary, should the office be withdrawn without specific delinquency judicially pronounced.

But though I could find for my judge no sort of shelter, much sooner would I commit him even to the mercy of the storm, than run any risk of seeing him either a despot or a despot’s journeyman. How much better that the one should suffer now and then through the fault of the many, than the many be continually suffering through the fault of one! Will such dependence be hurtful to his probity? No: for though even the most upright conduct should be no absolute security, yet upright conduct will be always his best chance.

But I have not that horror of the people. I do not see in them that savage monster which their detractors dream of. The injustices of the Athenians, had they been ten times as frequent as they were, would not, in my view of things, be much to the present purpose. Had the Athenians representative bodies?—had they the light of two thousand years of history to guide them? or the art of printing to diffuse it? When the Athenians were cruel and unjust, were the Dionysiuses and Artaxerxeses less so? In the people, injustice has at least been followed by repentance: acting in bodies, and especially under the veil of secresy, they have not that pride which keeps men from growing better: a despot, when he has injured a man, hates him but the more. As little would my notion of the probable conduct of the people, that is, of select men chosen by select men, in the exercise of an unquestioned right, in quiet times, be taken from the conduct of a few unknown individuals among a vast multitude, in the heat of a revolution brought on by excess of despotism. Much sooner would I look to America, where the people bear undisputed sway, and ask, in so many years of popular government, what violences or injustice to the prejudice of their servants have ever yet been presented by the history of thirteen commonwealths?

But if the people are not fit to exercise judgment, in a case of necessity, and that a case which may never happen, what shall we say of the system which puts them to judge constantly and in all cases? If chosen men among them are not fit to judge, what shall we say of men taken without choice? If the majority of a body so selected is in so rare a case no safe reliance, what shall we say to them when taken at random in so small a number as twelve? Yet such a system, because an old one, is looked upon as the causa sine quâ non of all possible security, by those who for the opposite reason would tremble at the thought of committing to any assembly that could be called a popular one, the power of ridding themselves of a bad judge. But of this under the head of juries.

§ 2.

Inconveniences of Periodical Election without power of amotion, and with or without intervals of exclusion.

That judges ought to be in a state of dependence with regard to the people, is a proposition that in the National Assembly seems to have met with very general acceptance. But for the efficient cause of this dependence, instead of a power of revocation, short leases and frequent renewals have been proposed, accompanied even with forced intervals of exclusion.

That the latter mode possesses, in comparison with the former, any the smallest advantage whatsoever, will, I believe, never be shewn.

Disadvantages it possesses the following; and those of no inconsiderable importance:

1. It throws away the benefit of experience: a sort of profusion very ill reconcilable to the rules of prudence. The notion of facility in the business belonging to this office is very good as a wish, but very ill-considered as an opinion. The necessity of technical knowledge, of an acquaintance with the complicated and discordant system of judicature as still subsisting, is but a temporary one. Be it so: but though the laws were as simple as angels are pure, judicature could never be brought within the competence of an uninstructed and unexperienced mind. The application of the law to the fact, the inquiry whether the evidence as exhibited brings the matter of fact within any of the species laid down in this or that part of the general map of law, is a task that is and ever will be liable to require a considerable skill in the value of words, a considerable degree of proficiency in that abstruse and formidable branch of science, distinguished by the repulsive appellations of logic and metaphysics. The putting together and weighing one against another that multitude of obscure and discordant links, which a cause will sometimes exhibit, of a chain of evidence, is a task to which no ordinary powers of discernment will be equal: the investigating them is a pursuit to which no vulgar measure of sagacity will suffice. In all other lines, shall practice be essential to improvement, and in this alone a matter of indifference? Are men bred tailors or shoemakers by nature? and is there less difficulty in trying a long and intricate cause, than in making a pair of breeches or a shoe? True it is, that to certain purposes, and as far as concerns a few simple operations, every man is called upon—every man may be more or less qualified, to be a judge. But in what way? Just as every man may upon a pinch be called upon to be a tailor, a shoemaker, a physician, or a practiser in any other mystery. Does that prove that all men can make shoes, one man as well as another, and every man without having learnt it? No, certainly. Causes there doubtless are, that may be judged by almost anybody: I will go farther; the bulk of causes may be in this case: but the causes that come before the judge so called, are among the most difficult and most intricate that the treasury of human transactions furnishes; and it is particularly for them that he is constituted judge.

Once more, note the distinction between real justice and apparent: instinct may serve a man to do justice; but it requires cultivated reason to show that justice has been done: to make it appear even to the bystanders, who see every thing as it passes: much more to the judge above, who has seen nothing about the matter: to observe the rules laid down by the law; and to prove, against the severest scrutiny, that those rules have been observed.

No art, no science, no corner, however obscure, in the obscurest art or science, that may not furnish questions for the decision of a judge; and judges, it has been thought, may be taken from any counter, or from behind any hedge!

The value of a common soldier increases with every day of service: and is the discipline of the judgment-seat a matter of less difficulty than the discipline of the ranks? In the military line, the hardship of compulsion gives the only objection against a man’s being kept to the profession so long as he is able to handle the implements of it. Shall the soldier, though averse to his station, be confined to it; and the judge, though wedded to his, be turned out of it without mercy?

2. It weakens the authority of courts of appeal, by destroying the only natural title which one court can have to more confidence than another. Superior skill rendered probable by superiority of experience—popularity proved by continuance in a station from which unpopularity would have removed him—such is the certificate of superior merit which a judge of appeal has upon my plan to produce. Adopt the system of periodical exclusion, and as soon as a judge has acquired a little experience and reputation, you deprive yourself of his service.

3. It is prejudicial to the legitimate dependence, or what is commonly called the independence of the judge. It lays him at the mercy of the interest or the caprice of any individual who may happen for the moment to be in credit with the people. While he is drudging at his duty, up starts an advocate at the election town, catches hold of some unlucky incident which had made him enemies, harangues the people, turns the tide against him, and seats himself in his place. Can you expect him to sit still and see himself attacked, without taking measures to defend himself? While he should be thinking of doing his duty, he will be thinking how to keep up his interest: while he should be judging the people, he will be thinking how to court their leaders.

“And may not all this happen just as well under the power of amotion?” By no means. There is a wide difference between turning a man out point-blank, where there is nobody to compare with him, and indirectly by the preference given to another. In the first case, you must make him out to be absolutely unfit: in the other case, all you have to maintain is, that there is some one person in the world fitter. In the one case, you load yourself with the unmixed odium of accusation: in the other case, you find relief in commendation. In the one case, it is all pure hostility; in the other case, while you provoke an enemy, you gain a friend.

4. It exposes him to the contagion of partiality. The private connexions of a judge in full business (and mine can hardly be otherwise,) will stretch but little beyond the narrow circle of his family. His suitors and his audiences are his visitors: duty gives him these connexions, and time scarce allows him any other. When you have turned him out of his seat, and taken his occupations out of his hands, what is he to do with himself? He must mix again in private circles, and endeavour to find in social intercourse a compensation for what he has lost in power and dignity. You throw him upon the town: you send him to form connexions and contract partialities; and when you have thus corrupted him, you let him come back again to his place.

5. It aggravates inequality, and strengthens aristocratical monopoly, by rendering the situation untenable to every one who has not a fortune of his own suitable to the dignity of the office. A man may judge at intervals, but can he live at intervals? Suppose a man, whose profession is his subsistence, taken from it, and made a judge. When he is a judge no longer, what is to become of him? Is he to go back to the bar, or to the desk, or to whatever other livelihood he had before? He is then to form connexions and to break them, to become partial and impartial by turns, to take money from people, and to behave to them as if he had taken none. He is to favour great families while he is on the bench, that they may give him their custom when he returns to the bar, and help him to mount the bench a second time. Elsewhere I shall have occasion to show how much the less fit a man is for the service of justice, for having ever been, though it were but for once, in the service of chicane. How much worse, if he is to serve them alternately? As well might he pretend to serve them both at once.

How would it be possible for him, if it were fitting? In such a line, who is there that can take up business and drop it when he pleases? When his clients are gone to other lawyers, who is to send them back to him? But if the law affords him no resource, where else is he to find one? A man who has been thinking about nothing but law all his life long, what else can he be good for? No man, therefore, who is not able to live at his ease without the salary, will meddle with the office; or, if he does, so much the worse for the service: no man who is at once honest and prudent will venture to engage in it. But if no honest and prudent man who cannot do without a salary will accept of the office, why give a salary? Inconvenience presses upon you on all sides. Either you get nobody for your office, or you get somebody who is not fit for it; or if you get a fit man, you make him an unfit one; and, at any rate, if you give money with your office, it is so much thrown away. Is wealth necessary to tempt a man to accept of power and dignity? I should not think so: but of this presently.

Be this as it may, by giving the wealthy the monopoly of this great office, with a salary to boot, you increase that inequality which, as far as can be done without prejudice to the superior interests of security, it should be your study to reduce. You divide the people into two classes, excluding one of them from their share in the common benefits, while you leave them their full proportion of the burden. You lay a tax upon poor and rich, to give the produce among the rich, seeing they are too rich already.

By this injustice to individuals, is the service at all benefited? On the contrary, it is injured. You shut out candidates, and you shut out those who are most likely to be most deserving. What is it that makes a man fit for business, but application? Who applies most—the man with a large fortune, or the man with a small one? Which is most likely to devote himself to dissipation—he who has the means for it, or he who has none? which to lay in the greatest stock of merit—he who sees nothing but merit that can give him consideration, or he who has already in hand that of which merit could give him but a chance?

Fancy not all this while that you are to endow offices, only that they may lie open to poor men: for it is but a bad method of serving the poor to tax the multitude of them only to make a purse for one. But when offices are to be endowed at any rate, and a given sum is allotted for the purpose, what you are fully warranted in doing is, to avoid giving the preference to that mode of disposing of it that would exclude the poorer man from coming in for his share. An office like this would not leave such a man as it found him: it would leave him beset by extraordinary wants, while unprovided with so much as ordinary means.

The obviating of all this inconvenience is one of the uses of the permanence of the salary, notwithstanding amotion, whereof more a little further on.

6. It endangers the peace of the country, by keeping up the ferment of a perpetual election, by inviting change, and producing party divisions among the people.

7. It endangers morals, by the incitement it affords to calumny. The falsehood is detected—but it has done its office; the upright judge has been thrown out, and the calumniator seated in his place. There rests he very quiet, enjoying the fruits of his wickedness till the next election, though it be seven years to come. But long before that time the lie is forgotten; and now, if opposed, his sole concern is how to invent more. This is one of the most copious sources of that tide of profligacy which elections upon the English plan bring in their train. Substitute or add the power of amotion, you crush the incentive in its birth. Calumny has displaced a man; returning truth will reinstate him: infamy often, disappointment at any rate, will be the author’s ultimate reward.

I am aware here of false geography. I am not so far misled by names as to transplant English mischiefs upon French ground. I am sensible how wide the difference between a French election and an English one, and how slight the inconveniences of the latter to those of the former. Bribery, drunkenness, and the insolent meanness of personal solicitation, are here certainly out of the case. Secresy of suffrage kills corruption in all its shapes, by disarming it of its hold. I am no less aware of the difference between an election by the body of the people, and an election by the elect. But lying on the behalf of the candidate, and party dissensions among the people, are evils, to the latter of which the virtues of the French discipline afford but an imperfect remedy, and to the former none at all. This probity, of which it is so effectual a preservative on the part of the electors, by leaving no resource but imposition to improbity on the part of the candidates, will afford to fraud and calumny an incentive but so much the more powerful. Calumny on the part of the candidate is a tribute of acknowledgment paid to the virtue of the elector: “It is because you mean to give your vote to the most deserving, that I take all this pains to make you believe my antagonist is not he.” The man who canvasses with a bribe in his hand or upon his table, may save his indolence from a deal of trouble, and his candour and veracity from a deal of danger: the strength of his cause lies not in the plausibility of his pretensions, but in the goodness of his liquor, or in the heaviness of his purse.

The elections which my system admits of, threaten no such mischief. They come on at rare and unexpected intervals: they present a prize to gain, not a livelihood to lose: the competition they give birth to, is a contest for distinction, not a struggle for existence.

These inconveniences, and greater, would be of slight account in comparison of the evil of a despotic judge: but when that is so effectually got clear of by the simple power of amotion, frequent election is perfectly unnecessary, and the evils of it stand uncompensated.

Give the power of amotion, forced intervals of exclusion are useless and unnecessary: withhold it, they are inconsistent and absurd. You won’t let your judge be turned out when there is reason for it, and you turn him out without mercy when there is none.

The use of periodical exclusion, if it has any, is confined to administration. It may serve to break confederacies among bodies of trustees, and render it more difficult for them to keep up plans of conspiracy against the interests of their principals. It may serve as an antidote to that sort of mismanagement which is the fruit of indolence, by transfusing young blood into the old body. It may loosen, in some degree, the shackles of that corruption which is the effect and the object of arbitrary patronage. It may serve as an help, or as an imperfect succedaneum, to publicity, seconded by the power of amotion: it may serve as a spur to the habitual lethargy, as well as a check to the occasional violence, of dark despotism. It may serve as a palliative to the abominations of an East-India-House: but what has it to do with single judges administering open justice?

Next to the having no periodical elections, is the having them as frequent as possible. Why? Because the oftener they come round, the less the danger is of a change. As the mischiefs of changing so often as you might change are so palpable, and as you see no more reason for changing one time than another, you e’en take things as they are, and enter into a sort of implicit engagement with yourself not to change at all.

This is no speculative conjecture: it is but a key to facts offered by experience. In England, wherever regular succession is not the object,* annual elections prove in effect appointments for life, subject only to a periodical power of amotion, which is rarely exercised:† while longer terms produce frequent changes, and still more frequent struggles.‡

Alternate subjection in this way has been represented by some as a pledge of virtue in a judge: periodical exclusion, therefore, as a necessary condition to such reciprocity of subjection. Return your judge from time to time into the mass of the people, that he may see before him the time when he will be subject to others, as now others are subject to him. Thus will you have him equitable, indulgent, circumspect: he will fear to tyrannize, lest tyranny should expose him to retaliation.

This is plausible, because it is obscure: dispel the obscurity, the plausibility goes along with it. Why plausible? Because it conveys implicitly the idea of dependence on the body of the people; and so far it is just: does it mean anything else? so sure is it delusive.

A thing it seems to take for granted is, that a judge, if not judgeable by those whom he has been judging, is not to be judgeable by anybody. Why suppose so? It need not be so upon any plan: it certainly is not so upon mine. Being judgeable at any rate, the true question is, whether there is any advantage in his being hereafter to be subject in this way to those who are at present subject to him—in his being subject to them rather than to anybody else. I answer—in no case any advantage: in a case which is not improbable, much inconvenience. Either he can foresee the particular individual to whom he may hereafter be subject, or he cannot. If he cannot, the reciprocity, as such, has no effect: the miscellaneous body of the people are all he has to look to, and the reciprocity amounts to nothing more than simple dependence on the body of the people. If he can foresee his successors, it renders him dependent on those individuals for the future, as they for the present are on him. What follows? Mutual fear, mutual favour, mutual corruption. Judge not, that ye be not judged: their union will be a comment on that text. Each is to the other what the Lord’s debtors were to the unjust steward: each pays his court indeed to the other, but it is at the expense of their common lord, the people.

This principle of reciprocity of subjection as between public men is but a particular modification of the old principle of the division of power: and like that, a distant approximation, a bad succedaneum, to the regular supremacy of the people. Reciprocity of subjection is a particular mode of mutual dependence. Single dependence on any body but the people is a bad thing: mutual dependence is the same bad thing doubled. If they are all dependent on the people, what more would you have? and what do you get by making them dependent upon one another? If they are not dependent on the people, what do you get in that case? Two or three despots instead of one: a warring tyranny instead of a quiet one: or a quiet one bought at the end of a warring one with the blood or treasure of the people. Look at old Rome: see there the fruit of mutual dependence:—it unites Crassues, Cæsars, and Pompeys: it unites Octaviuses, Lepiduses, and Anthonys. Look at Bengal: it unites Hastingses with Impeys.

Dependence on the people, or on individuals; on the whole, or on a part: there is but that alternative. Dependence on individuals known, is the very mischief to be avoided: dependence on individuals unknown, is but another word for dependence on the people.

If reciprocity of subjection, as contradistinct to simple dependence on the people, were of use anywhere, it should be in legislation: but it has nothing in it even there. In legislation (I always mean under a popular constitution,) it is not liable indeed to produce such mischief as in judicature. Why? Because in the former case it is not liable to produce connivances and confederacies as in the latter. A man may or may not be able to see over his own canton, so as to give a guess who will succeed to him as judge. What is certain is, that he cannot see all over France, so as to name to himself the majority of a future legislature. He could not, even in Great Britain, as to more than one of the two branches of the legislature: even in Great Britain, where public trust is private property, and where the people, like other cattle, are passed from hand to hand by succession or by sale. He cannot, therefore, see whom to court, nor whom to confederate with. But, even in legislation what does this reciprocity of subjection amount to? It is still but popular supremacy viewed through a confused medium. It is useful. Why? No otherwise than in virtue of the necessary connexion it has with the precariousness of a seat in the legislature, and with that species and degree of dependence on the people which is the consequence. Irremovable, a man might make his own division of the fruits of law: to himself and colleagues, the choicest of the rights; to the people, every thing that savoured of obligation: removable, you may be pretty sure of his not forming any such plan, nor so much as pursuing it but very slowly: for, unless it be very slowly indeed, where is the people, even in Britain, that would suffer him to go on with it?

Suppose, instead of a House of Peers and a House of Commons, two houses of peers, governing in tie, as Castor and Pollux lived? What would the people be the better for it? Great civility, or else open war between the future and the reigning sovereign: amity or enmity, the costs would still fall upon the people: great admiration of the excellence of the constitution, and of the wisdom of its inventors. But what would the people be the better for this civility and these fine sentiments? Peace or war, their shoulders would bear all the burden.

§ 3.

Permanence of Salary, notwithstanding Amotion.

The permanence of the salary, notwithstanding the power of amotion, is a help to the constitution in a variety of shapes:—

1. As an aid to the power of amotion. By softening the harshness of that power, you increase its efficacy. Who could find in his heart to strip an old man naked, after a youth of blameless or meritorious service? The more essential interest of the community would thus be sacrificed to compassion for the individual. Even incapacity and ill-temper, if unstained by improbity, would find in compassion very powerful antagonists to justice.

2. As a support to independence: meaning always that species and degree of it which we have seen to be of use to probity. On such terms, and hardly otherwise, a man may be expected to bear up against what he looks upon as the ill-informed, the momentary and partial opinion of the people, in expectation of a different decision from their well-informed, permanent, and general opinion. Mere disgrace can seldom be oppressive, when conscience certifies it to be unmerited. When facts are out of dispute, a sense of innocence, and a proportionable persuasion of seeing it one day recognised, are sentiments scarce distinguishable. But in the meantime a man must live.

The same expedient contributes to the same effect in a more indirect way, by its influence on the people. In public as well as private, the honesty of the servant depends in no small degree on the wisdom of the master. Servility, duplicity, craftiness, and inward contempt, on the one part, are natural consequences of caprice and tyranny on the other. There have been no greater contemners nor deceivers of the people than leaders of factions in unenlightened and unquiet times.

How then does it assist the wisdom of the people? By keeping them from edged tools. In the power thus modified, they possess an instrument which answers every purpose of self-defence, but has been spoilt for them as an instrument of vengeance. They will not be rendered the less cautious how they use it wantonly, by the consideration of what they will have to pay for using it. Compassion is never so well heard, as when she has prudence on her side.

3. As a help to the patriotic auction. Much could not be expected for an income of which no man could promise a day’s continuance: and a source of economy, otherwise so promising, would in that case be dried up. This is not a consideration to be placed in front of the inducements: but it is a full answer to all objections on the score of expense. The expense may perhaps never be incurred: it never can be, where the people who are to judge are not satisfied of their gaining more than they lose by it: while the value of the place, considered as an object of sale, is raised from that of a tenure at will, to that of an estate for life. Individuals cannot give so much to hazard as may be given by an establishment.

4. As an inducement to venture the labour and expense of a professional education. Conceive the station altogether precarious, and the salary as precarious as the station, how few are there who would take any trouble to qualify themselves for the duties of it? Who in England, or anywhere else, makes a serious study of the law, that does not expect to get by it? Hence the ignorance so universal among English legislators, and the thraldom in which they are held by mercenary lawyers. In France, judicial offices having been saleable, and of course for life, the emoluments offered a secure pennyworth for everybody’s penny. In England, the bar being a necessary step to the bench, the more immediate profits of the former station have presented a fund of inducement, independent of the hope of rising to one of the few seats in judicature. Upon my plan, which regards the professions as not only distinct but opposite, and practice in the one as not only not the best, but in many respects the worst preparative for a station in the other, a separate inducement applicable to the latter is the more necessary.*

5. As an antidote to aristocratical monopoly. In the preceding section, we saw the inconvenience, and the necessity of this remedy.

§ 4.

Power of Deputation.

The power of deputation is an essential article in the plan on several accounts: 1. As an aid to the people’s right of election, preserving them from the danger of an improper choice: 2. As an instrument of promptitude in the hands of justice: 3. As a measure of economy.

1. As an aid to the people in the exercise of their right of election. In this capacity, it requires itself the assistance of the principle of gradual promotion. It is not sufficient that the people have the faculty of choosing their judges out of men who have served in the capacity of judge-depute: they must be precluded from choosing them elsewhere. It is without much compunction that I rob them thus far of their choice. It is the very case, and that the only one, where they could have no grounds for choosing. Public fame will tell them who has proved the best judge, after trial: private acquaintance only can say, before trial, who, among young and untried men, is likely to prove a good one. The circle that bounds their choice will hardly be complained of as a narrow one. A judge to every canton gives above four thousand judges of the lowest rank: a deputy to each judge gives the people in every election four thousand candidates to choose out of. And in the instance of judge-deputes, as well as of principal judges, I secure to them the power of amotion; in comparison of which, the right of election, as hath been already shown, is an object of insignificance.

In return for so slight a sacrifice of arbitrary power, they gain a security not attainable by any other means, for intelligence, probity, and every other ingredient of fitness in a candidate.

On what other plan can the patron be made responsible for the goodness of his choice? What other plan gives the benefits of apprenticeship to judicature, and affords room for fitting the task in every individual instance to the powers of the workman? Choose him as you will, your judge, like everybody else, must begin somewhere. Upon the ordinary plans, he begins in the middle: important or trifling causes, difficult or easy, he must take them as they come. Upon this plan, the deputy, receiving his causes from the discretion of his principal, will of course see his task suited to his faculties: the least important and the least difficult, one may be well assured, are those with which the veteran will entrust a pupil, for whose misconduct he stands responsible. Accident may bring a cause of difficulty as well as importance upon the deputy at the very commencement of his career: true; but Telemachus will never be without Mentor at his elbow: so that the worst that can happen is a measure of delay much too small to have ever hitherto been deemed worth notice.

2. Promptitude of justice is a separate and still more manifest advantage resulting from this power: and which, without some such power, must necessarily be to a certain degree precarious under a single judge. Not only illness might occasion a suspension of justice for an indefinite time, but the out-door business incident to the office must occasion frequent vacancies.* Numerous bodies of judges, while they guard against this inconvenience, admit necessarily a fluctuation in their number, and thence a degree of uncertainty, besides the other inconveniences that we have seen attached to multiplicity in judicature. Doubling the number upon the establishment, would double the expense: though it is not double nor treble the number, nor, in short, any definite number, that could equally ensure the accomplishment of the purpose.

3. Frugality is another advantage peculiar to this mode of supplying occasional vacancies in judicature: in this way, and in this alone, you may get the services of several judges for the expense of one. The grounds for reckoning upon this saving will be stated presently. The object is no trifling one, when the question is between such numbers as four thousand, eight thousand, or twelve.

Against unpopularity, and every species of unfitness, the station of the judge-depute has every preservative that applies to the office of his principal: publicity, appeal, loss of promotion, danger of dismission. It has more: for nothing less than a formed unpopularity will suffice to remove the principal: a commencing unpopularity will be a warning to the principal to intimate to a deputy who has the misfortune to become the object of it, the expediency of resignation. The principal, upon amotion, preserves his salary: the deputy, in case of the same misfortune, loses his prospect of salary, as well as of everything else that has been the object of his ambition. The power of amotion is, at the same time, liable to less restraint, as well from prudence as from compassion, in this instance, than in the other. The people, by exercising it, will not subject themselves to the burden of an additional salary: and what they cannot fail observing is, that in the commencement of a man’s career, while other roads remain open to him, the mortification of a repulse, how severe soever at first, will be a less cruel shock than expulsion at a more advanced stage.

From the connexion, close as it is, improbity can derive no assistance. Neither can screen the other. By confederacy, danger would be doubled, and facility in no respect increased. The dependence of the one is a necessary consequence of the responsibility of the other: and where can be the danger to the people from a dependence between two of their servants, each alike dependent upon the common master?

Sit who will upon the bench, somebody must have put him there: and who so well qualified to judge of fitness for an office, as one who has made the duties of it the business of his life?

This mode of appointment, were it even divested of the purifying virtue of the superintendency of the people, would still remain superior to any of the modes hitherto current in France or England. In France, judicial offices have been venal: that is, the seller and the buyer between them have concurred in nominating a successor to the seller: motives on both sides purely pecuniary: no responsibility on the one part, no opportunity of instruction on the other. In England, the chancellor or the minister, determined by the need of creating an adherent or the satisfaction of serving a friend, succeed, according to their degrees of credit, in getting their recommendations accepted by the king: in both cases without the check of any specific responsibility. Under such corrupt systems, has abuse been rare? Much more will it be so under a pure one.

For such a station, want of candidates can hardly be apprehended. Of itself, it confers great power and dignity: it is a step to greater, with emoluments affording a provision for life. Even the dignity, without the emolument, would to many eyes be a full recompense for the trouble. Under favour of the instruction and superintendence of which it has the benefit, men may be admitted to it at an earlier age than could prudently be intrusted with self-subsisting judicature. At the commencement of every career, service is gladly exchanged for the opportunity of acquiring, and by degrees of displaying, capacity for employment. Apprentices are never wanting for the meanest trades: they will hardly be to seek in the most exalted of professions.

What is worth accepting is always found worth giving. The burden of responsibility will hardly be thought to destroy the value of the patronage. In what trade is not the master responsible for the apprentice? The faculty of suiting the task to the ability of the workman, is a security alike valuable to both.

The power of appointing a constant deputy would still be inadequate to its end, without the power of calling in occasional assistance. The permanent deputy is absent from the judgment-seat upon out-door business: the judge-principal is too ill to attend to business: why should the judgment-seat remain empty, if a person not incompetent can be found to fill it? Both judges are sitting: but one of them has got a petty assault or two to hear; the other, half a dozen debts to decree payment for, which are undisputed and undisputable. A case of difficulty and importance presents itself on a sudden, requiring some order to be taken in it without delay. Why keep half a dozen different groups of suitors waiting for a sort of justice which they might have from anybody? For, let it never be out of mind, that the bulk of cases that call for justice are those in which the demand for power is much greater than for wisdom. All the checks and securities which apply in the one instance, apply equally in the other: so do the inducements to acceptance, though with a force diminished in proportion to the lightness of the burden.

The flexibility thus given to the establishment must be particularly useful to it in its infancy. Experiments of the number of tribunals necessary, may be tried anywhere without hazard or expense. Take the committee’s cantons, containing a space of about thirty square miles. If one tribunal to a canton is no more than sufficient where it contains but one town, and that not a very considerable one, several must be necessary where it contains several towns, or a town like Lyons, Rouen, Bourdeaux, or Marseilles. Allow of deputations, the establishment may be understocked at first without inconvenience: disallow them, waste of public money is the consequence, if the tribunals are too many; failure of justice, if too few.

Not that an advantage like this can be ever out of date. The quantity of judicial business that may occur within a given period can never be subjected to measure, scarcely to calculation. One year may be twice as productive as another. Shall the same number of tribunals be inexorably fixed for both? If so, either in the one year they must be redundant by half the number, or in the other, deficient by the whole. In the one case you have double delay; or in the other, double expense. Such is the only alternative: such the inevitable consequence of an unbending provision for ever-fluctuating wants.*

§ 5.

Gradual Promotion.

The principle of gradual promotion, or, as it has been more shortly styled in French, the gradual system, is of use in several capacities:

1. As an aid to the principle of popular election: by confining the choice of the people, with regard to every rank in judicature but the lowest, to persons who have had an opportunity of showing whether they are fit for it or no. In this character it co-operates, as we have seen, with the power of deputation, taking up the object where the effects of that power end. See above, § 4.

2. As a support in the public opinion to the authority of courts of appeal. In this character it co-operates with the principle of permanence of situation, as contradistinct to that of periodical election. See above, Chap. IV. § 7.

3. As an inducement to a man to take upon him the burden of a professional education. In this character it co-operates again with the principle of permanence of situation. The essential use of it in this character is, however, confined to the first stage: the great object is, that the people should not have it in their power to choose any man for a judge-principal, who had not afforded them a trial of his fitness in the probationary station of judge-depute. As to higher ranks, the gradual system diminishes a man’s hopes of speedy elevation, as much as it diminishes his fears of remaining unpromoted in the lowest. But the most mortifying circumstance would be for a superior to see an inferior, without any interval of equality, put immediately over his head: against this mortification the principle of gradual promotion affords a pretty effectual preservative.

Applied to the hierarchies of administration and legislation, the gradual system has been proposed to the National Assembly, and rejected. With what reason, it is not worth while on this occasion to inquire. The cases differ in several points:—

1. For the business of that sort of local administration which is committed to the subordinate representative assemblies, no highly-cultivated talent, no very long experience, no professional education, is necessary. All that is wanted is good family management upon a more extensive scale. A man possessed of that ordinary talent will find himself fit enough for the office at his first entrance, and without any course of preparatory discipline; especially as the number of members in these bodies is considerable, and, according to the plan already established, every man at his entrance will find colleagues already instructed by experience. The duties of the judicial office demand, upon my plan, the whole, and upon every plan the greatest part of a man’s time: a small part of that time is as much as is expected, or even allowed, to be employed in the local administrations. In the latter case, the reward of the day may suffice for the labour of the day: in the other case, the long course of preparatory labour may require a chain of rewards in prospect, to enable a man to support it.

2. In the sovereign legislative assembly, on the other hand, genius and the talent of persuasion, endowments of the highest class and the rarest kind, are requisite; and you may be glad to get them wherever you can find them, without waiting for them six or eight years, and leaving it in the power of different sets of people to preclude you from ever getting them at all. Neither of these eminent qualifications are necessary in judicature. Discernment, sagacity, the faculty of comprehending, retaining, comparing, and distinguishing the several scenes in a long drama, are qualities essential to a judge: genius he wants not, for he has nothing to invent; talent of persuasion he wants not, for he has nobody to work upon: his duty is done when he has given a simple statement of the case before him, with the reasons that have governed his decision; and that, too, he may take his own time for.

Transcendent genius, it has been said by the partisans of the gradual system, is not wanted in legislature: it certainly is not wanted in every one of several hundred members of that body: but it is wanted in some; and so wide as the field of legislation is, and so numerous as its divisions are, one may venture to say, in many. At any rate, there can be no complaint of a redundance of talents for legislation, where the same persons are put into different committees, and the whole business is made to go on so much the slower, lest this or that part should not go on so well.

3. In regard to the bodies above mentioned, the persons on whom it is the design of the gradual system to fix the electors’ choice, are those who are most likely to be fixed upon without any such regulation: for who so likely to be returned member of the legislature by his district, as a man who has distinguished himself as a member of the administrative body of the same district; especially when they who choose the one are the very persons who choose the other? What should be their inducement to prefer an untried man, to the man they like best out of so many whom they have tried? The less danger there is that their choice should fail of taking so natural a direction, if left free, the less need therefore there is of forcing it. In regard to the judicial office, the case is altogether different. The spurious progeny of justice, if admitted into the competition, would have a thousand facilities for intruding themselves into the inheritance of the legitimate. (See the chapter on Advocates, &c.) Admit an advocate to put up against a judge, he will walk over the course, because he starts alone: the judge will lose his cause, for want of being able to get a hearing.

Where apprenticeships are of no use, apprenticeships have been instituted: where apprenticeships ought to have been looked upon as necessary, there have been none, or worse than none. Apprenticeships, as a necessary qualification for the right of practising, are of no use among any class of mercenary lawyers: the client being at liberty to choose whom he pleases, the emulation kept up by that liberty is as good a pledge of fitness as can be desired. Apprenticeship, as a qualification for acting in the station of a judge, may, for the opposite reason, be looked upon as necessary. The suitor cannot choose his judge. Instead of serving in that line, a man, before he can be admitted to act as a master, is put to serve in a subaltern employment, the tendency of which is to give him a variety of qualities opposite to those which are necessary to fit him for acting his part well in the superior one. But of this too under the head of Advocates.

The gradual system has always governed the military establishment: and in that department the only complaints it has ever given birth to have been occasioned, not by its observance, but by its violation. In that line, however, nobody disputes its needing exceptions: and the exceptions are at least as necessary as the general rule. In the judicial line it needs none. The path of judicial service is smooth and even: a judge has no cannon’s mouth to run into: there are no extraordinary exploits in judicature. Should occasion have called him to put his life to hazard in the support of justice, reward him, and welcome; but let it be as a man of valour, not as a judge: personal courage, however honourable, is no proof of talents for judicature.

It may be sufficient here just to hint at an institution for admitting persons to purchase distinction and rank by the obligation of attendance. Such an institution would give an additional step at the bottom of the scale. It would form a public, whose inspection would be more imposing than that of all the rest of the public put together. It would form the best of nurseries for judges-depute, as well permanent as occasional.

Persons consecrated from the first moment of their political birth to the pure service of truth and justice, would present a body of candidates, superior surely to the impure herd to whom the service of truth or untruth, justice or injustice, oppressed innocence or oppression, is constantly and professedly an object of indifference.

§ 6.

Of Pay, and of the Patriotic Auction as a means of regulating it.

If there be a mode of providing for establishments, which finds out in the instance of each place, nay, in the instance of each individual placeman, the quantum of allowance best adapted to the service—which ensures to the officer that allowance, not a farthing more nor less—which promotes the good of the service at least as efficaciously as it ministers to economy—which, leaving the choice of the servant in the hands of that sovereign master to whom the service is to be rendered, and out of whose substance the wages are to come, cements the truly natural alliance between frugality and liberty;—a principle which does all this, has surely some claim upon attention. Such is that to which I have given the name of the patriotic auction.*

1. Economy, by this mechanism, is pushed to its utmost limit. In this, as in every other branch of public service, every penny which, without hurting the service, you can save, and refuse to save, convicts you of peculation: a truth which, how much soever slighted and evaded, how adverse soever to English practice, and, if I understand right, even to English doctrine,† is seldom, I believe, openly disputed, and will be neither disputed nor evaded by the National Assembly of France. Adopt the patriotic auction, all such peculation vanishes.

By what other instrument can you adjust supply to exigency in any such line of service? Take what quantity you will, how do you know that it is as much as is necessary? If more, why give it? Why waste the substance of the people? Why plunder the poor and the industrious, to enrich the wealthy?

“The service of the public,” says a professed master of economy, “is a thing which cannot be put to auction, and struck down to those who will agree to execute it the cheapest.”‡ No, certainly: in services which, like the judicial, require particular qualification, not in such manner as to exclude choice: but my auction leaves choice its full liberty; a liberty which can nowhere be accompanied with full security, but where, as here, the people are the choosers.

In contracts for goods to be furnished for the public service, auction is the routine of practice. Yet even here, the rule of arithmetic cannot always be made peremptory, without sacrificing the service. Is the bidder able to fulfil his offer? does he mean to do so? Apply this to military stores:—the enemy will find you a best bidder.∥

No—the patriotic auction, applied with the reserve with which it is here applied—the patriotic auction, notwithstanding the epithet here chosen to distinguish it by, will not be deliberately pronounced ridiculous, unless by those who, as often as they descry anything truly useful in a plan for public service, pretend to find it ridiculous, and do their best to make it so. Of the exertions which it calls forth, public good is as likely as of any others to have been the final cause: and what is much more material, public good is sure, at any rate, to be the effect. It were hard if a man may not be permitted to flatter himself with the name of patriot, giving as unequivocal proofs of patriotism as any that patriotism can give. If personal considerations, perceived by him or unperceived, mix with the purer principle, to what end should any invidious hand attempt to tear the secret from his breast?

2. Will the service be prejudiced by such economy? It will be richly benefited by it. Daub your judge’s bag over with gold, you set all the world a scrambling for it—the few who love business, and the many who detest it; the few who understand the business, and the many who know nothing about the matter. When you see this or that man make a plunge for it, what do you learn? That he has any liking for the employment? No: but that he has no such violent aversion to it, but that his affection or necessity for the money is still stronger. When you see a man marry a woman without a penny, say he loves the woman: when you see a man marry a woman with a fortune, say he loves either the woman or the fortune. For woman read office, commission, bishoprick, living, where’s the difference? Not a toilet or a tea-table at which a truth so obvious would not be too trite almost for utterance: a man must have learnt wisdom in an English House of Commons, or at an English Treasury Board, to be able to affect not to understand it. Even there it can be no secret, that the better liking a man has to his business, the better the business is likely to be done. What a man bids at my auction will show not only whether he likes it or no, but the precise degree of his liking, which is what nothing else can indicate.

The auction is of equal use, bidders or no bidders. If there are any, you get either the economy, or, what is worth more, a servant by whose transcendent merit the plea of economy has been put to silence. If none, you get, at any rate, the demonstration that no saving is to be made. Fortified by a testimonial in which suspicion itself could not find a flaw to fix upon, you may stand forth boldly and uprightly in the face of the people, and wash your hands for ever of the dirt of peculation.

As to encouragement, it takes away none that is not demonstrated to be unnecessary. If there are biddings, it shows that the emolument unreduced was so much more than necessary. If none, no encouragement is taken away.

It even admits of a measure of encouragement, greater than can be admitted on any other plan. Secure to the public a deduction of whatever proves to be more than necessary, you may set the rate of the salary higher than you could otherwise afford to do.

By this means an extraordinary measure of encouragement lies open to extraordinary merit: and the greater the merit, the greater may be the measure of encouragement. On the ordinary plan of a fixed salary, the utmost advantage that can be given to merit is that of having a superior chance for a reward, which, if obtained, is no greater in the hands of the most than in those of the least deserving. Here, not only the probability of reward rises with desert, but so may the quantum likewise.*

“No,” says an objector, “as a means of keeping out people who do not like the business, your auction will not do. Strip your office ever so bare of emolument, a man may still take it, and hate the business of it, if it has power or dignity belonging to it, as your’s has, and he is fond of power or dignity.”—True: that is to say, if it has no business belonging to it, or, what comes to the same thing, none but what he is left equally free to do or to let alone. But will he, if the burden of office is to stick as close to him as the feather? Is there that man upon earth, that, for unprofitable power and empty dignity, would bind himself to do all day long, and every day, what he hates? For bread, a man does any thing: he heaves coals, sweeps chimnies, cleanses common sewers. Would he spend his life in the same way for the title of Lord Warden of the Collieries, Knight of the Brush, or Duke of Puddledock?

Neither Chartres nor the Duke of Wharton, it is true, could have had any rational objection to a bishoprick, though it were as barren as an apostleship: but neither the colonel nor the duke would have cared much for the lawn sleeves, if the drudgery of examinations and visitations had stuck to them, instead of being shaken off upon the chaplain and the archdeacon. From seeing a man take a bishoprick like that of Durham, for instance, you cannot I allow, form any kind of judgment whether he is fond of preaching or no, or whether he ever made a sermon in his life. All you can tell is, that he is fond of sitting with lords, and eating £14,000 a-year. But could you be under the like uncertainty with regard to such a man as Zinzendorf, for example, who, being a rich man and a count, chose, for the sake of apostleship, to become a poor man, and predecessor without a title to the now bishops of the Moravians? From seeing a man take the seals with an income not inferior to that of the episcopal palatinate, you cannot, to be sure, pronounce with any certainty whether he does or does not like the business of a judge: you cannot so much as tell whether he cares for the trouble of tossing the ecclesiastical crumbs, as they drop upon his table, to the Lazaruses that lie begging for them. He may keep causes waiting for a decree, for years by twenties and thirties at a time, and spiritual flocks without pastors in the same number, for any security that his acceptance of an office so endowed can give you of his using better diligence. The utmost you can say is, that if he hates business, his aversion to it is not so violent as his affection for the power and dignity of it, not forgetting the £14,000 a-year. But if you saw him administering justice, as Necker has been managing finance, year after year, and feeding the exchequer instead of feeding on it, would you then conceive it possible that business should be disagreeable to him? Yet in these cases, the power and dignity which are to weigh against aversion are of the brightest and heaviest metal: what would you say, if you saw equal pains taken, and with as little profit, by a country justice?

No man, however dissipated or empty-headed, need, as matters stand at present, have the smallest objection to a seat in either house: but a dissipated or empty-headed man would have very serious objections to it, if idleness and neglect of duty were not part of the privilege of parliament. Upon such terms, it is true, he need not be paid for what is called serving: he may even be made to pay, and does pay, up to twenty or thirty thousand pounds, for only a chance of it, though not altogether to the right fund. But my judges are not judges for show, like wooden soldiers at the court of a German prince, who cannot afford to keep live ones: they are not bishops in partibus infidelium or fidelium: they are not chancellors of Lancaster or Barataria: they are not judges in eyre, whose jurisdiction lies in nubibus; and who, were they of wood, instead of flesh and blood without bowels, would spare £5000 a-year to a plundered and insulted people.

But though power and dignity, with or without money, were capable of going ever so far towards reconciling a man to an employment he was naturally averse to, it would not be the less true, that the more money you give along with it, the more you weaken the evidence which his acceptance of the business affords of his liking to it, and in so far of his fitness for it. The clearer any inducement stands of all others that are capable of co-operating with it, the more clearly the amount of its influence stands displayed.*

If you are bent upon seeing your establishment filled with officers who to a man detest their duty, two principles will do as much as can well be done, where pressing is not thought advisable: superfluous pay, and liberty of negligence. Were you to employ the latter, and that alone, would it follow that you have done nothing? No: only that you have not done every thing. All the ingenuity of man will not prevent your getting men willing as well as able, by mischance. Even pressing would not prevent it altogether: for among your pressed men may be some who, if not taken in time, would have been volunteers. “But did you not insist but just now, that men of small fortunes were more likely to be fit for offices than men of large fortunes? Yet now you are contending for a plan which would give to a man of the largest fortune the best chance.” I did so: but on what supposition? That the office held out equal wealth to both, and that all you knew of them was, that the one was richer than the other. True it is, that the man of slender fortune might say to his more opulent antagonist,—“Anybody will conclude me fitter for the office than you, for nobody will suppose you can have taken so much pains to qualify yourself for it as I have.” But let the rich man wash his hands of all emolument, what a retort he will have to give! “Whether you have ever had any liking to the business or no, is still a problem: for, like it or not, as it has money coupled with it, and money is what you want, you would be equally glad to get it. But that I have a liking to it is indisputable: for how else should I think of taking it upon me for nothing? As to victory over temptation, all the proof you have to produce is a presumption arising from the weakness of your enemy: my victory stands demonstrated, spite of the superior strength of mine.”

The plain truth between two such rivals is this: it is less likely that the man of large fortune should be fond of this or any other kind of business, than that the man of small fortune should: but where, in fact, the relish is equal, the former has in a variety of respects the advantage.

“Oh, but this is venality—and venality is universally and deservedly detested and proscribed.” The objection takes various shapes. It shall be pursued through all of them. The short answer is—the venality you condemn, not without reason, is that which excludes the choice of the people—which gives the choice to an individual, whose interest it may be to make a bad one—and which puts the price into the pocket of the individual, not into any fund for public service. You, who detest venality, do you detest the saving of money to the people? This is but a particular mode of saving money to the people.

When a saleable office is at the disposal of an individual, and the money paid for it goes into the pocket of the individual, be will of course sell it to any one who will give most money for it: and any thought bestowed upon the fitness of the purchaser will be a mere work of supererogation. When masters in chancery had the suitors’ money in their hands, and the Earl of Macclesfield, then chancellor, sold the office of master in chancery, the money of the suitors’ was embezzled. Would the danger have been equal if the purchase-money, instead of being pocketed privately by the chancellor, had been to be paid publicly into the exchequer?

The strength of the objection lies in a string of phrases:—“Right of buying and right of selling go together.” “From venal judgment-seats follow venal judges, venal justice.” “He who buys the people, he who buys constitutents, suitors, soldiers, parishioners, will sell them. He will have a plea to plead for it.” A mere play upon words: clear up the confusion, the argument vanishes. What a man buys, when he buys an office, is the right of fulfilling the duties of it, not of violating them.

“But a man has paid his money, and he would not do so but upon the full assurance, and the fixed resolve, of making himself whole.” Two vulgar errors in one sentence. One is, that nothing has its value with mankind but money: power, rank, consideration, nothing that you can name. Ignorance like this ought to be left to English lawyers, who build upon it their law of verbal scandal, their law of evidence, and so many other of their laws—judging of other men by themselves, and not knowing how to do justice, even to themselves. This miserable maxim has no truth even in England; can it be endurable in France?*

The other is, to suppose that a man’s inclination to make money out of suitors, constituents, and so forth, is capable of receiving any sort of increase by his having bought them, as the phrase is, or by anything else but the facility. This is still ignorance of human nature, though ignorance on the other side. Every man will sell the people if he can sell them, and be never the worse for it: laws that go upon any other supposition are fit only for waste paper. Heroes form an exception: but folly only can look for an establishment composed of heroes. The true question turns solely upon the facility. Does a man’s buying the people, as you call it, give him any facility for selling them which he would not have had if he had got them for nothing? The answer being plainly in the negative, there ends the argument. As to my judge, I make as sure of his doing all the mischief he possibly can, as if he himself had sworn it: but I defy him to do any: leaving him all the while more latitude for doing good than ever was possessed by judges.

“Oh, but,” says somebody, “you are bribing the people with their own money to make a bad choice.” Good, as an epigram: good for nothing, as an argument. Where the gain is personal, and the danger public; where the gain is in a man’s pocket, and the danger is in the clouds; talk there of bribery if you please. When you see five guineas given to a freeholder for his vote, or a place given to a member to change his party, then talk of bribery. Here no man gets a particle of the saving, without getting his full proportion of the danger: and what he hazards is much more visible to him than what he saves. My judge, it must be remembered, sits alone: he has no colleague to set him right, any more than to encumber him. Calculate who will, how many farthings a-year it will be in the power of a rich man to save by giving himself a bad judge: I have not courage for the task. Where the balance of merit hangs even, a single farthing will be enough to turn it. Such is the utmost mischief that can happen from my bribe.

If the past and the present can afford us any prospect of the future, the chance of bidders, even for a very moderate salary, may be pronounced not inconsiderable. The legislator who sees in pre-established habits the instruments he has to work with, will lose no opportunity of putting them to their use. In France, men are in the habit of bidding, and bidding high, for dignity and power. In this line in particular, they have been used to work for nothing, if dignity and power be nothing. The scraps of jurisdiction served up by the old system, frittered down as they were, and parcelled out among dozens, scores, and even hundreds of hands, never went a begging. Confined as the market was in many instances, confined by pride and injustice to a peculiar order of citizens, there was no want of customers.

The lots I carve out are such as France has never seen before: a monarchy in justice, in place of a share in a fraction of an aristocracy: a power before which every other individual bows down: a rank assorted to that power. If no judges were ever worked so hard as mine, none were ever so well paid for their work in that bright coin which bears so high a price in France. The men I want are men of a high spirit, content to barter ease for power and dignity. Such were never wanting even under the oppressions of despotism. They will be doubly abundant under a constitution, which, levelling all arbitrary distinctions, gives a double value to all those which are founded on real service.

As opulence accumulates, bidders will multiply, and biddings will increase. What if it should at length be found, that the whole of this vast establishment can be kept up for nothing?—an establishment which now hangs so heavy on the imaginations of men in France, as without some such aid it must everywhere upon their fortunes, unless where, as in England, men are relieved from the expense of justice by being denied the benefit of it.

The committee have here also their plan of economy. What is it? Proscription.—When judges crowd upon the pension list in such a number as to be troublesome, off they are struck without further ceremony. Four thousand judges, one to every canton, were they all to be fed, would be enough to eat up the country. What is one to do with them? Sew up their mouths. What then is the hypothesis? Is it by compulsion they are to live without victuals, or by choice? Take what supposition you will, and see how this lower part of the establishment and the upper parts hang together. These four thousand, are they to be pressed men? Why not then press as well the five times 538,* the ten times 83,† the twenty times 30,‡ the 36,∥ and the 88,§ and make them to serve for nothing? Are they to be volunteers? Observe then your supposition. Common soldiers for this army are to be had freely and for nothing: officers, not without being paid for it.

I see the contrivance. Call a man a justice of the peace, and he will serve you for nothing: for in England you have a set of people who are called justices of the peace, and they serve for nothing. Do they?—No more than Job did. The English justice of the peace serves, it is true, without wages: but he does not serve without vails: and the committee give no vails. The vails come to a small matter, it is true, in comparison with the wages of the upper servants of justice: but in France they would be something: and even in England, some of the town ones live by them. But the real pay is yet behind.—The country justices are all gentlemen: their mess, like the member of parliament’s, is all sweet without bitter, all power without obligation. What they vouchsafe to do, the country is to think itself obliged to them for: they do just as much as they like, and as they like it, and when they like it. They serve in the country when the hounds are not out, as in parliament when there is no opera. They do a world of pleasant business too, besides the drudgery of justice: they tax the country, make the roads good to their houses, and build fine buildings. But the committee’s justices are men of a different stamp: they are to be servants of all work; I hope, at least, and suppose so; I am sure mine are. They are to do their duty, whenever it is their duty, and because it is their duty; not for amusement only, as Lord somebody used to make breeches.

For what purposes may money be wanting, or supposed to be wanting, to a man in public service? For inducement, for education, for subsistence, for equipment, for dignity, for a preservative against corruption, for a pledge of responsibility, for a fund of indemnification, and for a source of alacrity: for different services different articles of the above list, according to the nature of the service. All men in whom service is voluntary, must have inducement to undertake it. The seaman and the engineer may require education, the common soldier must have subsistence, all must be equipped for service; the king, the judge, and the head officer in a town or section of country, require, or at least are supposed to require, the symbols of dignity: every man who has the money or the fate of others at his disposal requires something of his own to preserve him against corruption, or, in the event of his sinking under the temptation, to serve as a fund for repairing damage, or for paying the debt of punishment: every man, before he can be said to have received a reward, must have received an equivalent or indemnification for any necessary expenses he may have been put to by reason of the service: every man to whom the enjoyment or expectation of the distinction naturally resulting from the honour of the service would not afford an adequate fund of spirits and alacrity, must have a bait of the lucrative kind held out to him, to make up for the deficiency. But fancy not, when you are setting up claims for public money, that you are to make a bill out, and charge a separate sum in every case for every item in this catalogue. Education the judge must have had already: equipment is included in the provision made for dignity: whatever sum is sufficient for the most expensive of the two objects, added to that of subsistence, will fulfil, at the same time, and that to the extent required, the further purposes of a preservative against corruption or other misbehaviour, and a fund for reparation and punishment, should any untoward accident demonstrate the insufficiency of the allowance in the capacity of a preservative: inducement and alacrity will be found him by the office, on whatever terms he thinks proper to put up for it: for who ever solicits for that, of which the acquisition promises him no pleasure?

Three circumstances comprise the outward elements of dignity in a judge:—Habit, means of conveyance, and attendance. Habit is the only article of which the use is confined solely to this object. Conveyance and attendance come under the head of necessary equipment. The means of conveyance are necessary to the discharge of that part of the duty which concerns the out-door business: attendance is necessary, especially on such occasions, to give immediate execution to such orders as require it, and to insure him against the accident of sudden violence. Whatever military force there is in the country, standing or occasional, can have no fitter employment, during peace, than contributing in this way by rotation to the maintenance of justice. It helps likewise to form an audience, and to fill up the measure of publicity. The decorations of the carriage, and of the accoutrements of the attendants, ought to be symbolical: in the expense of these decorations, added to that of the habit, consists all that is necessary or proper on the score of dignity. Whatever is thus necessary, is as necessary to one judge as to another: it ought therefore to be determined by law, and to be alike for every one. He ought not to be left at liberty to apply it to other purposes. One man might eat it; another, drink it; a third, spend it upon women. No man ought to fall short of the measure allowed: no man ought to exceed it. Ostentatious expense is no fit subject for emulation in a judge.

The dignity of a judge is not in his kitchen, nor in his cellar. Hospitality, whatever it may be in another man, is no virtue in such a magistrate. It is much nearer of kin to vice. It consumes time: it consumes money and begets wants: it begets connexions, and leads to partiality.

The use of dignity is, by impressing respect, to ensure obedience. On whom is this impression to be made? Upon the body of the people. What follows? That such exhibitions, and such alone, can contribute to this end, as are in a way to strike the senses of the multitude. The manner in which the magistrate lives within the precincts of his private dwelling-house, within the circle of his family, is nothing to the purpose: the people enter not into his house: the people mix not with his family.

The principle of the patriotic auction includes the policy of pecuniary qualifications. In such an office, a qualification of this sort, on the part of the officer himself, is at least desirable: either on his part, or on that of a bondsman, it is absolutely indispensable: in some degree, in the character of a preservative against corruption, but more particularly in that of a pledge of responsibility.

In the judicial office, an endowment of this sort is as necessary as in that of a member of a numerous legislative assembly it is useless, and the exaction of it impolitic and unjust. Individuals come singly under the power of the judge: under that of the legislator they seldom come but in large groups and mixed multitudes: he can neither hurt nor serve an individual whom he knows, without meting out the same measure to thousands or millions whom he does not know. The judge sees the fate of individuals lodged, according to every plan frequently, and according to mine constantly, in his single hand. The will of the legislature is nothing of itself, nor, how ill soever applied, can it have any effect, unless a multitude of other wills, sufficient to form a majority, take the same direction. In a legislature you want the rarest talents, and as much of them as you can get: the precarious security for probity, which is the utmost that any pecuniary qualification can give, is as nothing in comparison of ever so small a portion of ability not otherwise attainable. On the part of a judge, probity is indispensable, and ordinary ability may suffice.

An office like the judicial ought therefore never to be found in any hands where it has not a pecuniary qualification for company.—True: but whether it finds or brings one, makes no sort of difference, except as to the expense. The policy of qualifications, upon the ordinary plan, is linked with injustice: it establishes a monopoly, and that of the worst sort; a monopoly in favour of those who possess the greatest share of the advantages of society already, to the prejudice of those who possess the least. Necessity, and that alone, can there be the excuse. Give a salary: if it be sufficient for the purpose of a qualification, the necessity of one constituted by private income vanishes, and the monopoly remains without excuse. The patriotic auction, while it provides for the necessity, steers clear of the injustice. Giving a qualification, but only in proportion as it fails of finding one, it neither leaves the service unprovided with this security, nor excludes merit for the want of it.

As to the man of small fortune, if it lays him, or rather leaves him, under a disadvantage in one point of view, it gives him an advantage in another. The disadvantage is, that he cannot give himself quite so good a chance of getting the office as the rich man may do: the advantage is, that if he prevails against his rich antagonist, his triumph is the more honourable. No other plan affords so illustrious an evidence of extraordinary merit: none so exact a measure. In the common way, all you can get is, a man who was preferred by such or such a majority to such another man: here you have a man who has been preferred to such an one who bid twice as much, to such another who bid thrice as much, as he could do.*

§ 7.

Rank.

Rank is the exterior sign of power. Respect is the natural appendage of rank. Respect is necessary to power. A judge must have power over all those over whom he is judge: he ought therefore to have rank accordingly. To what end should any one possess a rank, and thence a measure of respect, superior to that of the judge, whose orders he is destined to obey? From an inconsistency of this kind no good could possibly come to pass: the natural effect of it, so far as it had any, would be to weaken the authority of the laws, and invite to disobedience the citizen thus preposterously elevated.

There can be no reason for giving precedence over the judge of a territory to the members of the administrative body of that territory. They must be subject to him, or else he is not their judge. They, it is true, may have laws to enact, or (to avoid verbal disputes) orders to give, to which he may have to enforce obedience. But in passing those laws, in issuing those orders, it is not their own authority that they exercise, but that of the National Assembly, by whom their acts will always be annullable at pleasure.

Were the faculty of making laws otherwise than in chief a ground for giving precedence over the judge to the members of the representative body, it would be equally a ground for putting him below every the meanest citizen. For in enforcing obedience to contracts, what is it that a judge does, but execute a law framed by the contracting parties, though assented to beforehand by the legislature?

True it is, there is no physical inconsistency in a man’s being superior to another in some respects, and inferior in others: superior one moment, and inferior the next. At Rome, the two consuls used to command by turns; and every man, were there any use in it, might have his day. But where in this case is the use?

The members of an administrative body, it has been said, may be of use in quieting a tumult: the higher the rank they possess, and thence the greater the measure of respect, the better fitted they will be for rendering that important service. Doubtless: and rank and respect they ought doubtless therefore to have. But is this a reason why they ought to possess more of those requisites than the judge? To him they are necessary at all times: to them only by accident. It is on the respect paid to him that their own acts must depend for their execution in the first instance. Whatever respect he possesses, enures to their use. A superiority in rank on their part, with regard to him, could only tend to weaken their authority as well as his.

The rank of a judge-depute must not last longer than he continues in his station: if it did, the station would be made a ladder to useless and undeserved pre-eminence, and judges would give deputations as kings give titles and ribbands.

§ 8.

Attendance.

Turn to political writers, governments, you will find, were instituted for the benefit of the governed. By were, without much adverting to the distinction, they perhaps mean ought to be. He who should mean otherwise, must have dreamt of history rather than read it. Put governed then, if you say ought to be: but if you are awake, put governors after were. It is in France alone, and now for the first time, that the latter proposition ceases to be true. Out of that state in which government continues to be carried on upon the principle which give it birth, France is emerging with rapid pace—Britain is not so much as thinking to emerge. Laity were made for clergy:—suitors for lawyers:—constituents for representatives:—colonists for those who lord it over the mother country:—beasts were created for the use of man. Bear these maxims in mind, and you may account with unerring confidence for whatever you see at this moment on British ground in the church, the law, the House of Commons, or the stable.

If parturition could have been bid to wait, or an hemorrhage to stop flowing, from Trinity term to Michaelmas, surgeons as well as lawyers might have had their long vacation. Unfortunately, the surgeon cannot say to the wounded traveller. “Lie bleeding there till my amusement is at an end, and luxury has given place to avarice.” Loss of life to the patient would be loss of fee to the surgeon, and surgeons are at the call of patients all days in the year, and all hours of the day. Had laws been planned by suitors without lawyers, law would no more have sacrificed the suitor to the lawyer, than nature has sacrificed the patient to the surgeon. We have been bidden to believe, that harvest was the cause why there is no justice in autumn: as if the time when the implements of husbandry are most wanted, were the time when the owner could best bear to be despoiled of them.

We have had in England perpetual clubs of good fellows: that so good a thing as good-fellowship might never cease. We have had perpetual clubs of prayers:* that omniscience might not for a moment be kept in want of information. Is it pardonable to have imagined, in the way of vision, the equivalent of a perpetual club of judges? Something not absolutely unlike it is said to exist in the metropolis, under the name of the Rotation-office. But these are magistrates, who, in contradistinction to those who get more by the trade, are styled trading justices: and a thief will not always wait, as honest men may be made to do.

It is a bitter office thus perpetually to be upbraiding trustees with being trust-breakers, Englishmen with being Englishmen, and mankind with being men: it is worse than a thankless—when will it cease to be a fruitless one?†

What non-residence is in the church, non-attendance is in the house. Those who wish to keep the one or the other on their present footing, will speak, or write, or preach against the grievance, commend the wholesome laws which the wisdom of ages has provided against it, and lament that virtue cannot be found to execute them. Those, should such peradventure arise in any future age, who entertain a real wish that the abuse should cease, will vote for this sure and simple method of rendering it impossible.‡ It has all the effect of a fine for non-attendance, without the apparent hardship, or the parade and trouble and expense, and odium, and uncertainty of prosecution. This most simple of regulations would of itself be sufficient to regenerate the house. Two classes only would remain: those who understood the business, and those who wished to understand it. No horse-racer, cock-fighter, hazard-player, fox-hunter, no empty lordling, no law-harpy in full feather, no lounger or man of gallantry, would find it worth his while to sit there; no merchant or banker would find it good husbandry to pay so much of his time to save the expense of correspondence.

The difference in point of strictness between the obligation of attendance on the part of the judge of an immediate court, and that on the part of the judge of appeal, will render the latter station a retreat from the laborious functions of the former, and a suitable reward for the due discharge of them.

What makes the jurisdiction of appeal naturally so much less burthensome than the other, is not so much any positive difference that may be thought proper to be made in the number of the vacation days, as the natural exemption from out-door business, and from sudden calls. As nothing can come before them that cannot wait, and that has not already waited, they may have fixed days and hours for business; and as often as the paper is exhausted of business, they will be at liberty till it receives a recruit.

§ 9.

Electioneering forbidden.

The reason for suspending in judges the privilege of active citizens, is obvious enough: it is to guard their probity, and reputation for probity, from a most fertile source of danger. Mention not disgrace: nothing can be a disgrace that is not meant to be so: an incapacitation, the result of power and dignity, carries more of honour with it than disgrace: it is the ostracism of the Athenians, without any of the hardship or the iniquity.

In England, the twelve superior judges are indebted in no small degree for their unsullied reputation to the implicit obedience they have the good sense to pay to this precept of Pythagoras; as the breach of it is one of the most fertile sources of complaint against the country magistrates, who, being gentlemen at large, accept of a part of the rights of their fellow-citizens to dispose of, as gentlemen accept of seats in the House of Commons, to fill up a vacant hour now and then, or serve a friend.

§ 10.

Pluralities forbidden.

Two reasons, either of them conclusive, forbid the joining any other office to that of judge; or any one judicial office to another:

1. Want of time. The abjuration of all other public business, is the necessary consequence of the inviolable obligation to attendance. Occupied or no in the actual service of justice, the judge ought to be every moment in readiness to obey her call. If he has anything else to do but sit in judgment, suitors must inevitably be exposed to wait for justice. If judges in general have any considerable part of their time to spare for other business, it is a sign that the judicial territories are too small, that they are more numerous than they need be, and the whole establishment more expensive.

2. Danger to probity, and reputation of probity. All offices are sources of connexion: connexions are sources of partiality; generally of actual partiality, always of suspicion of partiality, which is to reputation of probity what actual partiality is to probity itself.

To these may be added:

3. Injustice and impolicy of monopoly. The supremacy of security remaining inviolate, equality ought here, as elsewhere, to be the ruling principle. Pluralities, accumulating in few hands the objects of general desire, deprive so many individuals of a portion of enjoyment, and the public of so many lots of reward applicable to the encouragement of public merit. Three such prizes, thrown into the lap of one unjustly-favoured individual, do not produce three times the enjoyment that one of them would have produced, nor, consequently, a sum of enjoyment equal to what they would have produced if distributed among three.

Above all things, a judge chosen by the people ought not to be at liberty to accept an office from any other hands, and least of all from those of the crown. In such a case, an office is a bribe.*

It is not under the patronage of the people that pluralities are either so dangerous, or so likely to be abundant, though law were not in the way. Despotism, monarchial or aristocratical, and its attendant, favouritism, are the natural parents of this and kindred abuses. Create a people for the use of their trustees, pluralities and sinecures and non-residence are natural and justifiable. Appoint trustees for the service of the people, the English and the French for plurality, and sinecure and non-residence is fraud and monopoly, and breach of trust and peculation.

In some instances, if I mis-recollect not, the National Assembly seems to have been betrayed into a disposition to tolerate pluralities, even where one of the offices is that of judge. When two offices are allowed to be holden together, one of which is sufficient to fill up a man’s time, the law should explain itself, and declare which of the two duties it means to have neglected.

“Would you then exclude all judges from all prospect of a seat in the sovereign legislature?” No, certainly. For legislation there cannot be a better probation, nor a better nursery, than judicature. In legislation, transcendent genius is too important and too rare to permit the excluding the smallest chance for it. But the principle of deputation affords an obvious compromise. Let the office and salary of a judge, thus distinguished, be preserved to him, so long as he continues in the exercise of the superior function, under the condition of providing a deputy extraordinary to supply his place.

In England, this and a thousand other difficulties are got rid of by a very simple principle. Power without obligation being the condition of parliamentary service, a seat in parliament is no burden in any shape, nor creates any demand upon a man for his time. A judge may be a member of parliament for the same reason that a horse might be so. Accordingly, the chancellor’s subordinate, the master of the rolls, the eight Welsh judges, and the masters in chancery, may all of them have, and commonly have many of them, seats in the House of Commons. In English law, if you have an exception to a bad rule, it is not for any good reason, but for a reason as irrational as the rule. The twelve judges are shut out of the House of Commons:—Why? because a man cannot serve in two places at a time? No: but because they are wanted to sit cooling their heels, without opening their mouths, in the House of Lords. The same reason should shut out the masters in chancery: but Chaos has granted them a dispensation. The same reason should shut out the king’s men among the mercenary lawyers: but they are wanted in the House of Commons as counsel for the minister: to be judges and parties; to sit in judgment as members, over their own conduct as king’s lawyers; to prevent the amendment of the law; and to sell their constituents, whom they pay, to the crown, by whom they are paid.

Exceptions were taken when a horse was consul; there could be none against his being a lord. It is beyond comparison better that a horse should have a voice in that house, than that a judge should. A horse-lord, present or absent, would be as capable of doing duty in the house as another lord, when attending at the opera or the gaming-table, or making the grand tour. A horse-lord, under the switch of the king’s riding-master, would be as capable of giving a proxy, as another lord under the wand of the king’s chamberlain. Neighing in that house would not make a horse the worse for riding; but sitting and voting there makes a judge very much the worse for judging. If a horse contracted partialities, he would not trot the worse for it: when a judge exposes himself to similar suspicions, he judges very much the worse, or is thought to do so, which comes exactly to the same thing. Custom, which sanctifies all absurdities, custom alone could reconcile men to the sight of a man holding at the same time a place in the court appealed from, and another in the court appealed to; judging under one name what he has been doing under another. The plea is, that he may be there to defend his decrees: as if a man could not be heard as a defendant, without voting as a judge. Who is there that does not remember when the nation was kept for years in a ferment, justice become odious, good judicature traduced, and bad judicature painted worse, because a great man, who had one foot on the bench, had another in the house, and was delivering, sometimes in the one place, sometimes in another, doctrines supposed to have been learnt in the king’s bedchamber? By degrees it is settled into a rule, that not only the chancellor shall have a peerage, but that the same feather shall be stuck into the caps of the two chiefs in the courts of King’s Bench and Common Pleas. Ere long it will get down to the Exchequer, that Westminster-hall may not contain a single bench undefiled by politics. When you have put your judge into the house, the greatest eulogium you can bestow upon him is, that he might as well be anywhere else, for anything that he does there. You plunge him head over ears into temptation, and your hope is, that he will not be soiled by it. If this be wisdom, put your daughter to board in Drury-Lane to teach her chastity. Why, then, this incongruity? Because, such is the presumption of the trader in mercenary justice, such the ascendant of talents, strengthened by wayward industry, over faculties debilitated by hereditary idleness, and such the dominion which lawyer-craft has planted in the ignorance and prejudices of public men, that the highest seat in judicature is too low for him: nor will he stoop to sit in it, unless bribed by a second and still higher station, which can have no other effect than that of unfitting him for the first.

The Hales, the Holts, and the Raymonds, received no such extraordinary rewards beforehand for ordinary service that was to follow. But is not possible service as good a title to the first honours, as actual wealth without pretence of service? Is partial abuse worth mentioning, in a distinction which has abuse for its sole substance and primeval essence?

But it is to the Chancery-bench you must look, if you would behold a monster, in comparison of which the chimera of the poets was an ordinary beast, their triple-bodied Geryon an ordinary man:—

1. A single judge, controuling in civil matters the several jurisdictions of the twelve great judges.

2. A necessary member of the cabinet, the chief and most constant adviser of the king in all matters of law.

3. The perpetual president of the highest of the two houses of legislature.

4. The absolute proprietor of a prodigious mass of ecclesiastical patronage.

5. The competitor of the minister for almost the whole patronage of the law.

6. The keeper of the great seal; a transcendent, multifarious, and indefinable office.

7. The possessor of a multitude of heterogeneous scraps of power, too various to be enumerated.

All these discordant bodies you see inclosed in one robe, that every one may corrupt another, if it be possible, and that the due discharge of the functions of any one of them may be impossible. Such is the care and providence of chaos.

§ 11.

Oath of Office.

Promissory oaths, if properly applied, are capable of being made a very useful supplement to penal laws. The oath of office in the text, will, I hope, be found an example of such an application. But so delicate and sacred an instrument of government ought to be guarded from profanation, and husbanded with the utmost care. To this purpose, the following rules seem proper to be observed:—

1. It should not be employed where the ordinary provisions of the law, with its attendant sanctions, would answer the purpose of themselves: which is the case wherever the offence they create is such as admits of specific evidence sufficient for legal conviction, and not more than ordinarily difficult to obtain. For in such cases an oath is needless.*

2. It should not be employed in sanctioning ordinances of a light and unimportant nature. For in such cases it is useless:* and more harm is done by the discredit thrown on the sanction, than good by the strength given to the law.

3. It should not be employed in sanctioning ordinances which must unavoidably be infringed. For in such cases it is to a certain degree necessarily inefficacious: and its inefficiency exposes it to contempt.†

4. Above all things, it should not be employed in sanctioning ordinances of such a nature as to be liable to be constantly and universally broken, without a possibility of detection. For here it is inefficacious in the extreme.

Such is the case in all instances where the use made of the oath is to ensure the veracity of a declaration of opinion. The duty prescribed is the entertaining of a certain opinion: the delinquency by which the oath is broken, is the not entertaining of that opinion, or, at any rate, the entertaining of one repugnant to it. Of this species of delinquency, if such it is to be styled, it is evident that, confining itself, as it does, to the breast which gave it birth, it may subsist in the fullest degree, without leaving on any part of the exterior demeanour, any marks which can afford the smallest handle to accusation, or even so much as to suspicion.‡

5. As to the wording of it, it should not confine itself to declarations of so general a nature as to be nugatory; such as, for example, a simple promise of general good behaviour, unaccompanied with any assurance of a specific nature. For in this way, too, it is rendered inefficacious, and by its inefficacy contemptible.∥

The use, then, of a promissory oath, and in particular of an oath of office, appears to be the employing the joint force of the religious and moral sanctions, or, at any rate, of one of them, in aid of the political. And the instances in which it may with propriety be called in and applied, are those where, the injunction not being frivolous, nor infringement necessarily frequent, nor the ordinary penal sanction of itself sufficient to the purpose, a violation of the duty thus sanctioned may be capable of being ascertained by evidence, which, though not sufficient to ground a judicial conviction, may yet be sufficient to draw on the delinquent a censure more or less determinate on the part of the tribunal of opinion. And to this purpose it will be the better adapted, the more specific and pointed it is in the description it gives of the demeanour which it endeavours to ensure or to prevent; and the more difficult it consequently renders it to delinquency to screen itself from the public eye.

Binding, restraining, are not the only effects which may be derived from an engagement of this nature. Under the semblance of coercion, it may be made to cover real liberty; and the probity of public men may find shelter under it against the tyranny of private influence. Set its efficacy at the lowest rate, an oath is a most comfortable shield against all importunity which is not in alliance with a man’s own inclination. My heart is with you, he may say, but the oath I have taken ties my hands. But he will not be called upon to say so: he will not be put to the expense of any such insincerity. What every one sees cannot be granted, is not asked. You cannot say to a man, Good Sir, perjure yourself to oblige me: no, not even to one who, for ends of his own, you are sure would perjure himself without remorse: the bare proposition would be an insult: still less can you complain of him for not having done so of his own accord.

This use of an oath is of no light importance. Self is but one: connexions are infinite. The danger which the probity of a public man is exposed to from the suggestions of his own immediate interest, is trifling in comparison with the attacks it has to sustain from the interests of all sorts which surround him. Amongst these, local and professional interests are particularly dangerous: individual ones venture not beyond a whisper: the others, by their clamour, counterfeit the public voice, and clothe themselves impudently in the garb of virtue. Strengthened by secret inclination, and entrenched behind the rampart of an oath, probity may bid defiance to all its adversaries.

This same principle of liberty, under the semblance of constraint, may be applied to the other branches of public duty, not less to the relief of the individual, than to the advantage of the service. In parliament, for example, what more common than to do the devil’s work, not by choice, but by necessity; and, in bitterness of heart, to serve at the expense of the public the little tyrant whom you hate?*

As to what may be called the sanctionative part of it, an oath should be such as men of all persuasions in matters of religion may take without belying their principles. Whom is it to bind? Everybody. What ties, then, should it employ? What but such as every body will be bound by. If one tie is not sufficient, what follows? That it should add another. Even under the darkness of English bigotry, this precaution is not altogether unobserved. Jews are sworn upon the Old Testament, Mahometans upon the Koran, Hindoos upon the book which passes among that people for the repository of religious truth. If a man has religion, bind him, whatever it be, by his religion: but if he has none, is he for that reason to go free? Common sense, were that consulted, would pronounce the contrary: the fewer the ties that can take hold of him, the greater the need of making the utmost of those few. The rebel to religion may still bear allegiance to the laws of honour; to those laws, to which every thinking man, in proportion as he deserves that title, will ever pay obedience.

Of all things, therefore, an oath ought not to involve in its texture, explicitly or implicitly, a religious creed: not so much as a declaration of theism. Why? Because it ought not to force a man to add immorality to irreligion: it ought not, by exposing a man to the reproach of insincerity, to give him an interest in propagating the notion of its being frivolous and unobligatory, and force him thus to make war upon its credit in order to save his own.

“What! athiests then?—would you let in athiests into your establishment?” I answer—that is not the question. The question is not, whether such an exclusion would be desirable, but whether it ought to be endeavoured at by such means. It is the property of tests, not to exclude anybody from the trust, but such whom the very exclusion demonstrates to be peculiarly worthy of admittance. The dilemma is insuperable. Take at once the case of the athiest as the strongest. If he swallows your test, it fails of its end by the supposition: if he refuses it, he proves, by the very refusal, that an athiest, instead of being inferior to believers in the article of probity, is superior. It proves him in particular to be superior in that point to a Church-of-England clergy. What churchman of that denomination can pretend to stick at perjury? He is trained up to it from a child: he sucks it in with the milk of his alma mater: it is meat and drink to him.† Does the stomach of an athiest revolt at such a potion? It cannot, without manifesting a degree of sensibility unknown to the whole English hierarchy. What more indisputable proof can be given of the purest virtue, than the abstaining from delinquency, where temptation is violent and discovery impossible? Is a man to be heard who should pretend to apprehend mischief to society from such a character?—and more, too, than from one that knows no such scruples? Will it be assumed, that athiests will in general take the test and enter, instead of refusing it and being shut out? Then the equally general effect of such a test on men of that description will be to produce perjury, instead of the effect it aims at. Which is the worst character, a conscientious athiest, or a perjured churchman, it is needless to dispute: thus much may be affirmed without much fear of contradiction, that a perjured athiest is worse than an unperjured one.

The wording of this sanctionative part is also material in another point of view. According to the language employed, the declaration may be more or less solemn and intense. It may import a greater or less measure of attention to the subject, of confidence in the truth of what is uttered, of sensibility to the importance of truth in that instance, and of the guilt and danger of a departure from it. As the importance of the occasion admits of various degrees, so may the solemnity of the oath; that extraordinary resources may not be lavished upon ordinary objects, nor instruments, of which the efficiency depends so much upon the opinion of their sanctity, be profaned by a too frequent use. But to sift this part of the subject to the bottom, would lead us to too great a distance.

But the greater the measure of strength which, by proper management, may be given to the moral as well as the religious part of this complex tie, the greater ought to be the care taken not to overstrain it, nor apply it to any improper use. Above all things, it ought never to be employed to force conscience: never but in concert with conscience, and in subservience to her dictates. It ought never to be employed where there can be the least doubt, whether a man looks upon that to be right which it requires him to do: much less when it is certain he thinks it wrong. It can there only be made use of with propriety, where it is employed to strengthen conscience against temptation, and to render his acting in the manner which he himself believes to be right, more sure.

Compare to these several rules the example given in the text: particular application would double the length of a section already but too long.

CHAPTER VI.

Tit. IV.—

Of Pursuer-Generals.

Art. I.—a The functions of a pursuer-general of an immediate court, shall be, in civil matters,—

1. To reclaim the execution of all laws in the execution of which no individual has any special interest, and of those in the execution of which the nation has a special interest of its own, superadded to that of individuals.

2.a To act on behalf of the king in his individual capacity, as well in the character of defendant as that of plaintiff.

3. To act on behalf of every [plaintiffb ] who, through poverty and want of friends, is unable to engage any other advocate.

4. To obviate any prejudice he sees likely to result to justice, from any oversight or unskilfulness on the part of a [plaintiffb ] who pleads his own cause, or on the part of his advocate, gratuitous or professional.

Art. II.—In penal matters,—

1. To superintend the proceedings of every private prosecutor; to assist him, in case of oversight or unskilfulness; and to watch over him, and prevent remissness or collusion with the defendant.

2. To reclaim the execution of all penal laws, by performing the functions of prosecutor where no private prosecutor is received in preference; and in the cases, if any, where individuals are not admitted to prosecute.

Art. III.—In cases where the administrative body of a territory for which he serves, is empowered to act in the character of pursuer by the hands of its procurator-syndic, and the pursuer-general is not engaged by his office on the other side, he has concurrent authority with such precurator-syndic, each cause belonging to that one of them who is first seized of it. But, to prevent collusion or remissness, each of them has a right to receive communication of all such business carried on by the other.

Art. IV.—Where a [pursuerc ] and not the [defender-generalb ] whose interests a [pursuer-generalc ] has espoused, happens to [be made defendantd ] in a cross cause, growing out of that in which he was [pursuer,b ] the [pursuer-generalc ] and not the [defender-generale ] shall take in charge the interests of such party in such derivative cause.

Art. V.—In a court of appeal, the client of the [pursuer-generale ] shall be the party who was the client of the [pursuer-generalc ] of the immediate court in the original cause.

Art. VI.—Clauses in the oath of office to be taken by pursuers-general, in the room of Clause I. in the oath appointed to be taken by judges:—

1. That I will, at all times, be vigilant in looking out for, forward in entering upon, and faithful in executing, all such business as the law has given me in charge: not suffering myself to be turned aside from the pursuit or the performance of it, by indolence or by interest, by hope or by fear, by affection or by enmity towards any individual, or class of men, or party in the state.

Art. VII.—2. That in my zeal on behalf of the cause I have in charge, I will not seek to serve it at the expense of truth or justice. I will not use any endeavours to cause to be received as true, any fact which I do not believe to be true, nor as just, any conclusion which I do not believe to be just; nor my persuasion of the truth of any fact, or the justice of any conclusion, as stronger than it really is: nor will I seek to put upon the conduct of any man, any colouring other than what I believe to be true: nor will I exercise partiality in favour of the party whose interest I espouse, any otherwise than by doing such acts as justice requires to be done, and giving such counsel as justice requires to be given, on his behalf, and by applying my faculties to the discovering and presenting of such considerations as make in favour of his cause, in preference to such as make against it.

☞ For the other provisions relative to pursuer-generals, see Tit. III. Of Judges.

CHAPTER VII.

Tit. V.—

Of Defender-Generals.

Art. I.—The functions of a defender-general of an immediate court shall be, in matters civil as well as penal,—

1. To act on behalf of every defendant, who, through poverty and want of friends, is unable to engage any other advocate.

2. To obviate any prejudice he sees likely to result to justice, from any oversight or unskilfulness on the part of a defendant who pleads his own cause, or on the part of his private advocate, gratuitous or professional.

Art. II.—To act on behalf of the administrative body of the territory for which he serves, in cases where the pursuer-general is engaged on the other side: but this in concurrence with the procurator-syndic of that body, in the same manner as the pursuer-general would have had to act.

☞ For the other provisions relative to defender-generals, see Tit. III. Of Judges, and Tit. IV. Of Pursuer-Generals.

CHAPTER VIII.

Tit. VI.—

Of Voluntary Prosecutors.

Art. I.—For any offence not specially excepted, any man not specially inhibited may be admitted to prosecute: giving competent security against collusion, litigious vexation, and calumny.

Art. II.—But no man, other than the pursuer-general, is bound to take upon him this duty, and any man may call upon the pursuer-general to take it off his hands.

Art. III.—In the following cases, the judge, upon the petition of an individual, may admit him to prosecute in preference to the pursuer-general, if he thinks the purposes of justice will be better served by such preference, declaring that such is his opinion, and for what reasons:—

1. Where the pursuer-general, in virtue of some connexion or otherwise, stands exposed to a suspicion of collusion with the defendant.

2. Where the prosecution seems likely to be of an intricate nature, and to require more time than it may be in the power of the pursuer-general to devote to it, without prejudice to his duty in respect of other business.

3. Where the person offering himself as prosecutor has a special interest, whether lucrative or vindictive: as in case of theft, defraudment, malicious destruction or endamagement, robbery, and other private offences raised to the rank of public ones: so also in case of perjury, to the prejudice of an individual.

4. Where a reward is provided, which, in proportion to the circumstances of the voluntary prosecutor, is considerable, and he, wishing for his own security to have the conduct of the prosecution in his own hands, can show a probability of its being terminated more speedily, or with the better chance of success in his hands than in those of the pursuer-general.

Art. IV.—But no delay shall be granted for the purpose of inquiring into the relative fitness of such voluntary prosecutor: and rather than any delay shall ensue, the function shall be assigned provisionally to the pursuer-general.

Art. V.—No person shall be received definitively in the character of voluntary prosecutor, till after hearing what, if any thing, can be urged against his admission on the part of the pursuer-general.

Art. VI.—Failing the voluntary prosecutor by death, absence, unnecessary delay, rejection for collusion or other misbehaviour, or dismission at his own request, the charge of the prosecution devolves on the pursuer-general of course.

Art. VII.—On notice given to the pursuer-general, a voluntary prosecutor may at any time be relieved from his duty by leave of the judge, which shall not be refused without special cause.

Art. VIII.—Among divers persons offering themselves in concurrence to undertake the charge of voluntary prosecutor, the judge, after hearing the pursuer-general, shall choose that one who in his judgment appears the fittest; superiority of interest, ability pecuniary and intellectual, and moral character, all being taken into the account: but rather than delay should ensue, the charge shall be provisionally committed to the pursuer-general, as by Art. IV.

Art. IX.—A voluntary prosecutor may at any time, by a written instrument, or by oral appointment made in court, depute any one person to act in his stead; the principal remaining answerable for such deputy, until such deputation be revoked, which it may be at any time.

Art. X.—So may he associate with him, on the like terms, any person or persons as colleagues, with leave of the court, and not otherwise: and the act of any one such coprosecutor shall bind the rest.

Art. XI.—A voluntary prosecutor shall be reimbursed, at the public expense, such part of his costs as would have been incurred had the prosecution remained in the hands of the pursuer-general: and this even in case of acquittal, unless refused on the ground of calumny, temerity, vexation, or other special cause.

Art. XII.—Honorary rewards shall be provided, which a voluntary prosecutor shall be at liberty to receive, instead of any pecuniary rewards proffered by the law.

Art. XIII.—Where a voluntary prosecutor accepts an honorary reward in lieu of a pecuniary one, he shall besides be reimbursed his costs actually out of pocket: yet so that the difference between such costs and the taxed costs, added to the pecuniary value of the honorary reward, shall not exceed the amount of such pecuniary reward.

Art. XIV.—Where no honorary reward is provided, should the voluntary prosecutor release his right to the whole or any part of the pecuniary reward, such release shall not be deemed to extend to the difference between costs out of pocket and taxed costs.

Art. XV.—It lies upon the pursuer-general to watch and take care that there be no collusion between the defendant and a voluntary prosecutor, nor any undue favour shown by the latter to the former.

Art. XVI.—It lies upon the judge to watch and take care that there be no collusion or undue favour between the defendant and the pursuer-general, with or without a voluntary prosecutor.

Art. XVII.—To prevent collusion, and that each may, as occasion requires, be as a check or as a spur to the other, where the charge of prosecution is adjudged to the pursuer-general, in preference to an individual who otherwise might have been admitted as voluntary prosecutor, communication of proceedings and inspection of documents shall be given to such individual, and vice versa to the pursuer-general.

Art. XVIII.—Any person may, with leave of the court, put at any time to the pursuer-general, or other prosecutor, any questions tending to ascertain whether collusion or undue favour has not taken, or is not intended to take place; nor shall such leave be refused, unless for special cause; such as evil conscience on the part of the questioner, accompanied with an intention of calumny, vexation, or mischievous delay.

Art. XIX.—It lies upon the judge to be on his guard against any intention, on the part of a voluntary prosecutor, to give up the reward, without leave of the court, to the defendant: in which view, a promise not to do so may be exacted upon oath: and in case of necessity, the whole, or any part of such reward, may be stopped for the benefit of the public treasury.

Art. XX.—It is a ground for suspicion of undue favour or collusion, if the voluntary prosecutor, or person applying to be received in that character, is connected with the defendant in the way of interest, consanguinity, affinity, or intimate acquaintance. But no such connexion ought to be received of itself as conclusive evidence: since the cause may often subsist, without being attended with any such effect.

Art. XXI.—No person shall be admitted to take upon him the charge of voluntary prosecutor, until he has taken the following oath:—

I, V. P. being about to be admitted voluntary prosecutor in this cause, do solemnly promise and swear—that during my continuance in this trust, I will employ the utmost of my endeavours, and use the utmost expedition in my power, by all lawful means to bring the defendant to justice: not suffering myself to be turned aside from the performance of this my duty, by indolence or by interest, by hope or by fear, by affection or by enmity, towards any person or persons whatsoever. I will not, without the leave of the court, show him any favour tending to exempt him from the whole or any part of the punishment which he may be deemed to have incurred, much less consult and collude with him to any such purpose: [nor will I, during the time prescribed for secresy, communicate to him, directly or indirectly, but on the contrary will, to the best of my power, keep concealed from him, and from every one through whose knowledge he might derive advantage, any particulars which the law requires to be kept secret from the defendant in such a cause.]

Art. XXII.—Information of any offence, or of any ground for suspecting the commission of any offence, shall not be received, either by the judge or by the pursuer-general, but upon oath.

Art. XXIII.—Any information so given, may be given in secret; and the pursuer-general, upon requisition made to him by the informer, shall bind himself by oath, not to make known the informer, unless and until, in due form of law, authorised so to do.

Art. XXIV.—At the conclusion of the suit, or at any prior stage, the judge, upon requisition made on the part of the defendant, is bound, if he sees probable ground for an action for rash or malicious prosecution, to order the pursuer-general to make known the informer for that purpose.

Art. XXV.—Any pecuniary reward offered by or according to law, may be paid in the whole, or in any part, to the informer, without his being known, upon application made by the pursuer-general, or any other person, in such informer’s behalf. It shall be paid to the pursuer-general for his use, and by the pursuer-general to him or to his order, he giving a receipt for it in the secret register-book: and every such sum shall be comprised in the pursuer-general’s periodical account, to be rendered upon oath.

Art. XXVI.—A prosecutor or informer may be punished as for rash or malicious prosecution or information, without any separate action instituted for that purpose, and upon the mere evidence presented in the course of the prosecution itself: unless, having further defence to make, he requires that a separate action should be instituted for that purpose, in which case the proceedings in the original cause shall stand as evidence in such cross cause.

OBSERVATIONS ON TITLES IV. V. & VI.

§ 1.

Similarity, in point of Reason, between the Provisions relative to the three Lines.

Regulations fit for the office of judge being given, so are they for that of pursuer-general: so are they again for that of defender-general: a few slight differences, such as those which have been seen, compose the only exceptions which a minute examination suggested to my view. The substance of the titles being so far the same, so far might be, so far therefore ought to be, the words: eadem natura, eadem nomenclatura, is a rule that in legislative composition ought never to be departed from: facility, brevity, precision, and certainty, are equally and jointly served by it.

But the provisions which the reader has seen, were determined by the reasons which he has also seen. To be satisfied that, under the exceptions just mentioned, the provisions referred in the first instance to the judicial office, are applicable, with a degree of advantage more or less considerable, to the two other offices, a reader, should any one think it worth his while, has but to go over the observations contained under the preceding title twice more, considering them successively in those two further points of view. Where the particular reason failed, the general advantage of uniformity was always found sufficient to turn the scale on that side, no particular reason being discoverable in the opposite scale.

§ 2.

Reasons for keeping the three Lines separate.

Various reasons plead against mixing the lines, so as to suffer a man to seek promotion in a line different from that he has once embarked in. As for any advantages that would result from such an intermixture, I can find none.

I. General reasons applicable to all the lines:—

1. Each class makes the better check upon the two others. From diversity of occupation may naturally be expected a certain diversity of character: for in what time of life is not character apt to receive a tincture from occupation? Interests different, and ways of thinking different in some respects. Each line will thence be a sort of spy upon the two others, ready to give information to the public of anything it sees amiss. Prejudice, should anything of that sort find admittance, will in the different lines be apt to take a different direction, and one branch may serve as a corrective to another. Bodies of men—men in general, and lawyers more especially, are sure to find out or to create a corporate interest: and they can scarcely have one which is not hostile in some way or other to the interest of the public at large. Division may serve to render this professional interest in some measure the less formidable.

As to the National Assembly, nothing can be more manifest than the apprehension it discovers, of a sort of confederacy among men of law. Why not avail itself then of so simple and innocent an antidote?

The committee, in their second draught, though they have struck off two out of the five judges of their district-court, adhere to the other three. The notion of their serving as checks upon one another must surely have been at least one reason, if not the only one, for this adherence. But how much better checks will a pursuer-general on the one part, and a defender-general on the other, make to a judge, than so many fellow-judges? Let one and the same man always preside and take the lead, out of your three judges you get one efficient character, and two sleepers. Give them the lead by turns, you give indeed to all of them the use of their faculties; but still they are three colleagues, sitting together, living together, and moulded by habit into a similarity of conduct, opinion, and affections. Each finds the convenience of winking, as far as he can with safety, at whatever he may find amiss in the conduct of his brethren: they are compelled, on pain of the irksome task of sitting for ever in unpleasant company, to form a common cause; and that cause may be a very different one from the cause of the people.

2. No one of the three occupations is altogether so good an apprenticeship for either of the two others, as it is for itself: nor does it afford so competent a state of probation, nor so fair a title to promotion: especially in judicature, where the superiority of confidence, built on superiority of experience, is the chief basis of the authority of a court of appeal over a subordinate immediate court. See Chap. IV. § 7; Chap. V. Observations, § 5.

3. From the division of labour, something may be derived, even in this line of industry, towards the increase of skill: especially with respect to the exercise of that right of representation already mentioned,* which would form so useful an appendage to every office that has anything to do with the execution of the law. The pursuer-general, by applying his whole faculties to the enforcement of the law in both branches, and in the penal to the keeping every door of escape shut against the guilty, will be the more acute in the discovery of any imperfections the law may remain chargeable with in this point of view, and more skilful in the conception of the proper remedies: while the opposite cause will give the class of defender-generals a peculiar insight into those particulars in which the law, in her anxiety to overtake guilt, may have overlooked some provision that might and ought to have been made for the security of innocence.†

II. Particular reason for not admitting the migration from either of the two other lines into the judicial:—

4. The function of the advocate, even of the official sort of advocate here in question, is a source of connexion: it requires unsolemn and extra-judicial intercourse. But disconnexion is one of the great attributes of a judge.

III. Particular reason for not admitting migration from the judicial into either of the two other lines:—

5. It would be a discouragement to men from entering on either of the two inferior lines, if, from a lower rank in the judicial, a man were admitted to step into a high rank in either of those other lines. It would diminish the prospect of reward to those who in their youth had borne the heat and burden of the day. This supposes the reciprocal chance cut off by the reciprocal exclusion of the two other orders of magistrates from the judicial line.

IV. Particular reasons for not admitting migration from the line of defender-generals to that of pursuer-generals:—

6. The view of promotion might have an unfavourable influence on the probity of a pursuer-general, were he liable to have a defender-general for his competitor. The function of a prosecuting advocate exposes a man to many causes of unpopularity: that of a defending advocate, to scarce any. Against such a competitor, a pursuer-general, if strict and inflexible in the discharge of his duty, would lie under a considerable disadvantage. The consideration of such disadvantage might operate on him as a temptation to relax upon occasion from the observance of his duty.

7. The same cause might occasion a difficulty in finding proper persons willing to take upon them the lowest rank in this line. It might be deserted for the other more promising one.

8. It might possibly be thought expedient, in the view of sharpening the diligence of a pursuer-general, to allow him a fixed proportion of any fines he has been instrumental in recovering. This expedient, were it adopted, could at the same time hardly fail of adding in some degree to the measure of unpopularity naturally adhering to the office; and thence to the disadvantage whoever filled it would lie under in a competition with a defender-general. The clause of vigilance, inserted into the pursuer-general’s oath, with a particular view to this effect, may reasonably be expected to afford him some protection.‡ But that the plea of compulsion, which it affords, should pass with every man, seems rather too much to expect from a miscellaneous multitude.

I observed at the outset, I could see no particular advantage to be got by mixing the lines. A man, it is true, may conceive a dislike to the one he has first betaken himself to, and fancy one of the others would suit him better. But such a discovery, if made at all, will be made at an early period, in the station of a depute: and in that stage, the door from line to line remains still open.

§ 3.

Different methods of filling the Function of Prosecutor—Open—Close—and Mixed.

The use and function of a judge is to give execution to the laws. The use and function of a pursuer is to require at the hands of the judge the fulfilment of such his duty, and to investigate, arrange, exhibit, and display to the best advantage, the proofs by which the justice of such requisition is to be made appear.

These two functions are equally necessary to their common end. Without a judge, no laws could be executed: as little could they without a prosecutor.

But a requisition of this nature would be but a vain thing without evidence to support it: and before a man can see any ground for making such a requisition, he must have some general ground for expecting at least that evidence sufficient to support such a requisition may be obtained. Three distinguishable operations may accordingly be looked upon in general as alike necessary to the giving execution to the laws: information, prosecution, and giving evidence.*

Prosecution, or, to speak more generally, action, or legal pursuit, is the only one of the three with which we have any direct concern at present: at the same time that, among objects so intimately connected, it will be impossible to bestow on this a full consideration, without touching in some measure upon the other two.

Three methods of providing for the discharge of this function offer themselves to view:—1. Leaving it open to be performed by persons at large, according as they happen to present themselves.† 2. Providing some one fixed person, or set of persons, by whom, and by whom alone, it shall be discharged in all cases:‡ and, 3. Coupling the particular obligation with the general allowance.

Of the two first of these courses, neither, it will be seen, is of itself sufficient: the third, therefore, which is a compound of the two, is the only eligible one. The open, is the most obvious, and the most simple. The nature of things seems in every case to point out the informer as the fittest prosecutor. Of the above-mentioned necessary preliminaries to judicial decision, information comes first in order. Without some ground for prosecuting, who would be, or who ought to be, disposed to prosecute? No informer then, no prosecutor.∥ But having an informer, why look out for anybody else to prosecute? For what should a man inform, unless it be that prosecution may take place? And if it be his wish the task should be undertaken, who so fit as himself to undertake it—he, upon the truth of whose information the propriety and success of the prosecution must depend? But the function of the informer cannot possibly be an appropriated one? It is opportunity only that makes the witness: it is opportunity only that makes the informer: and as it makes a different witness, so does it a different informer, for each individual offence. Information out of the question, choice may indeed make prosecutors: and one prosecutor may serve for all prosecutions, as one judge may not only for all prosecutions, but for all causes. But as opportunity alone can make informers, and the informer is the most natural prosecutor, the most natural course is, that prosecutor as well as informer should be made by opportunity rather than by choice.

§ 4.

Insufficiency of the Open Mode.

The open plan, then, is the most natural one: but is it, in all cases, a sufficient one? Here much depends on the nature of the offence, or other incident, that calls for the execution of the law.

Is it the case of a claim (whether on the score of delinquency or any other) of a purely private nature? No other prosecutor or plaintiff than the party particularly interested to make such claim, need in general be looked out for.§ If he thinks it worth his while to make it, he will do so: if not, the reason for wishing to see it made has no place: it is still less worth the while of anybody else. Here, then, bating the accidental case of special inability, the open plan is quite sufficient. Private interest, the cause which creates the demand for this species of service, may be trusted to for supplying it.

Far otherwise is the case with offences of a purely public nature.¶ Here nobody has any interest in prosecuting: no man has sustained any special injury; no man can claim any particular satisfaction. Why should any man take upon him this troublesome and invidious office? The burden would be his alone: in the benefit all mankind would share with him. For the execution of this great branch of the laws, the open plan, accompanied with bare allowance, would be as nothing. But laws of this description there are many, without the observance and execution of which, no society could subsist. Grant that here and there a Curtius shall be found, who, for the pure love of the public, shall throw his fortune as well as repose into the gulph of litigation; it is not for the law at least to expect a people composed exclusively of heroes, whose virtue would render law unnecessary.

An expedient here presents itself: Natural interest—natural inducement—failing, substitute factitious. Such accordingly is the policy observed, more or less, in the laws of every nation.

1. Two properties inherent in the very essence of remuneratory inducement, join in rendering this plan defective. It is expensive, and its efficacy is necessarily uncertain: and this uncertainty again adds to the expense. In here and there an instance, it may find you a prosecutor: in others, it may not. But a prosecutor you must have in every case: where you can get no prosecutor, as well might you have no laws. What follows? Lest, in this or that case, what you offer should prove not enough, you must offer what in nine cases out of ten will be more than enough.

2. If at this excessive price you purchased proportionable certainty, it would be something: on the contrary, uncertainty goes hand in hand with profusion. Reward may be increased to excess, and still nothing at all like certainty. Multitudes would inform, of whom not one would prosecute. Information is the work of a minute: prosecution may be the work of days, or months, or years. A man may be induced to inform, by a tenth part of that which would still be insufficient to prevail upon him to prosecute.

3. The apprehension of general odium, or particular enmity, is another consideration capable of driving multitudes from the service, and reducing the efficacy of reward to nothing. Secresy may remove this stumbling-block out of the way of the informer: but for a prosecutor—a real prosecutor, there can be no secresy.*

4. Ability, too, may be wanting in a thousand instances, where inclination might be gained. Various descriptions of people may inform, who would be either absolutely incapable of prosecuting, or at least eminently unfit for it: such as females, infants, persons infirm, persons of a weak mind, persons subject to indispensable avocations.

5. The efficacy of reward, even when, if unopposed, it might be adequate to its object, is liable to be combated by counter-applications of the same nature. What can one guinea do, where the delinquent is able, and finds it worth his while, to offer two? or where there are others, who, under the influence of private or party interest or affection, find adequate inducements to club their purses for the same purpose? Laws may be made against such compositions and such associations: but the influence of such laws is necessarily precarious.

6. The hired or other voluntary prosecutor, standing alone, and without an inspector or substitute, has, in effect, the power of pardoning. And what must be the weakness of that law, which in every instance lies thus at the mercy of an individual, whom chance, not choice, has listed in the service! For a time, it is true, every law must unavoidably thus lie at the mercy of the informer—true, if there is but one person in a condition to render the law that service: but this is only for a time. Information, it has already been observed, is but the operation of a minute: that minute over, the informer’s power of pardoning is at an end: but the prosecutor’s lasts as long as the prosecution.

7. Out of what fund, too, shall the reward be drawn? The more common course is, to provide no other than the effects of the delinquent, that is, such of them as are to be recovered at the hazard and expense of litigation, and spite of all his endeavours to withdraw them. Here, then, if the reward fails, the service fails; and at any rate, as against the whole body of the poor, the law is doomed to impotence: but the poor form the bulk of the community. The more power you want from this state-engine, the more you are led to strain it: but the more you strain it in this way, the more apt it is to fail you. The more mischievous the offence, the greater the reward: but the greater the reward, the less the probability that there will be found enough to pay it.

All these observations hold good, though some of them in an inferior degree, with regard to such offences of a private nature as, in consideration of the public mischief they are conceived to draw in their train, have been generally raised to the rank of public ones.* As the factitious interest may fail, in regard to offences purely public, so may both natural and factitious, if any be given, in regard to offences of this mixed nature. It is at least as apt to do so: the natural interest is, in some of those instances, of the lucrative kind: the factitious interest given, has always been solely of that kind: and in offences of the class now on the carpet, this inducement is peculiarly apt to fail.† Theft, robbery, fraud, and so forth, are peculiarly the offences of those who have nothing; and from nothing no damages can be recovered.‡ The lucrative principle of action being out of the question, there remains only the vindictive. But where prudence and compassion join there force, how frequently must they prove too strong for vengeance!

Imperfect then indeed must that system of law be, which depends upon chance, or the action of so imperfect an engine as reward, and that, too, feebly and irregularly applied, for so necessary an assistance. Delinquency, which, whenever the law sleeps, is but the more vigilant and alert, takes note of all the conjunctures when the situation of things refuses a voluntary prosecutor: where no natural interest prompts; where no factitious interest has been provided; where the parties concerned in interest are minors, females, absent, helpless, or insane, and the strongest suggestions of interest are rendered fruitless by inability. Such, as will be seen more particularly a little farther on, is the system, or rather the no-system, of the law of England.

Justice, too, not less than policy, forbids the throwing the whole of the burthen, without a compensation, upon a single individual: much more upon an individual whose very distinction from others is the burden of suffering he has borne already. In the benefit of the prosecution, which is the maintaining the laws in efficacy and vigour, all are sharers; so ought they therefore in the burthen. At the charge of all, he ought to be eased of the expense; nor ought he, without indemnification, to be called upon to take the trouble.∥

§ 5.

Insufficiency of the Close Method.

A fixed establishment of a set of official prosecutors is therefore a necessary appendage to every judicial establishment. In this office too, as well as in the judicial, the same considerations of responsibility, intellectual fitness, legitimate dependence, promptitude, frugality, and so forth, require that at each tribunal there should be but one officer of this kind, though with the same power of appointing deputies, as well permanent as occasional: and as the demand for his service extends, as we have seen, to all penal cases, so of course ought his duty. Even in causes purely civil, though it would be equally dangerous and useless to put him forcibly in the place of the natural pursuer, or as his chosen assistant;§ yet as far as can be done by a hint thrown out, should occasion appear to call for it, in the way of argument, much good may incidentally result to justice, and there can result no harm, from such an interference.

I mean, where the suitor either requires no assistance, or has been able as well as desirous to procure from other resources such assistance as may suffice. But where poverty, and the various incapacities attending that condition, join in leaving him without resource, where can the individual find a fitter protector than this servant of the public, and what need can there be to look out for any other? See the Chapter on Pauper Causes.

An official prosecutor ought therefore to be provided. Does it follow that all voluntary ones should be excluded? By no means. That any such exclusion is not necessary, is evident: equally far is it from being of any use. It is inexpedient on a variety of accounts:—

1. It takes away from the certainty of punishment, and thence from the efficacy of the laws. Upon the concurrence of all those whose co-operation is necessary to the execution of any given law, the execution of it in any particular instance, and thence in general the certainty of such execution, must depend. That certainty can never be entire: but the fewer chances are excluded, the less it will want of being so. If the law is not a good one, why suffer it? If it is a good law, why do anything to lessen its effect?

2. It establishes an arbitrary dispensing power. An exclusive power of reclaiming the execution of the laws, lays them, as far as it extends, at the feet of the person thus endowed. It gives him the equivalent to a negative in legislation: it gives him more; it gives him, in each individual instance of their execution, the sole initiative. It gives him consequently, not only the power of pardoning, but a power much greater than the power of pardoning. It gives him a power greater than the power so called, as exercised by the King of England. That monarch’s power of pardoning extends not to the saving a man from prosecution: even when it precedes conviction (a sort of pardon very rarely granted,) it must be pleaded; and the plea cannot be preferred till the prosecution has been begun, and the grounds of it made public. The difference is no slight matter. In the one case, a delinquent can be saved from so much only of the punishment as goes by the name of punishment; to the portion of infamy naturally adherent to the offence it leaves him still exposed: in the other case, he may be saved not only from the punishment, but from the infamy. A direct pardon, while it takes away the nominal punishment, aggravates instead of mitigating the infamy. It is a sort of certificate of guilt: for who would be pardoned if he could be acquitted? By attracting the public attention, it renders the infamy proportionably extensive, and gives it redoubled force. A direct power of pardoning, exposed as it thus is by the nature of things to public inspection, has not anything like the capacity for harbouring abuse. A pardon therefore so called is not likely to be issued in such a stage, without such grounds as will bear inquiry; lest the infamy of the offence should recoil from the hand that receives the pardon to the hand that gives it. The indirect faculty of pardoning here in question, by being so inconsiderable in show, is but the greater in effect. Its power of mischief has no bounds. At first glance you might suppose it confined to corrupt or ill-judged lenity: in fact, it is not a whit less adapted to the purpose of oppression: for whoever can license oppression can oppress.

In comparison of a despotism like this, what is the power of a judge? Small indeed: even of an independent and irresponsible judge. An arbitrary judge may save delinquents from punishment so called: but be he ever so arbitrary, he cannot screen them altogether from natural infamy. He may stop proof: but he cannot prevent accusation. Something he must have heard, and something others must have heard with him, ere he can say, I will hear no more. Under such circumstances, an acquittal is a certificate of guilt.

3. It enables a man, under favour of that dispensing power, to establish a secret despotism—the more connivances, the more delinquents: and in every known delinquent he beholds a slave. Interest is thus put in direct opposition to duty: neglect of duty has arbitrary power for its reward; and the greater the neglect, the greater the reward. The multitude of these slaves has scarce any other limits than what a man’s own moderation may think fit to set to it. Connivance, seconded if necessary by rumour, gives to understand that such and such laws may be violated with impunity: though it should be rashness alone that could be the first to profit by the intelligence, yet reflection and calculation may follow by degrees. What a variety of transgressions are there, which, if no one were to be punished for them, almost every one would give into without scruple! But any one such transgression thus become universal, is enough to bring the whole body of citizens within the pale of this despotism, and depopulate the empire of the laws.*

The monster I have been painting is no chimera. A decree of the National Assembly, I much fear, will be found to have given him existence. By Art. 8 of the decree of July 5, 1790, the officers by whom the function of prosecution is to be carried on, are to be “named by the king, and named for life.” By Art. 9, they are not to be removed but for “forfeiture judicially pronounced.” Compare this part of the establishment with that which relates to judges. How is it with regard to nomination? The choice of these magistrates has been given, not to the king and the people jointly, as proposed by the committee, but, as proposed at the commencement of this work, to the people solely. So far is well: but the choice of the public prosecutor, an office, the power of which, as far as it extends, has been shown to be in effect so much greater than that of a judge, is given—to whom? To the people? No. To the people and the king together? Not so neither; but to the king alone: a power, of which, under the venal plan of the ancient despotism, the crown never possessed the smallest share. How is it with regard to dependence? The judges are, in virtue of the principle of sexennial election, dependent in some sort, dependent, and that to a greater degree than any English member of parliament, upon the good opinion of the people. These more powerful magistrates are under no sort of regular dependence upon either king or people.

Was it the notion of the committee, in fixing these magistrates in their places for life, to take them out of the dependence of the king, and obviate any danger apprehended from the royal nomination? On the contrary, it is the very way to increase, or rather create that very danger. In the first place, they are more exposed to the undue influence of the crown in this way, than if they were even removable at the pleasure of the crown: in the next place, were they altogether out of reach of that influence, it would be never the better for the people.

I say they are more exposed to the undue influence of the crown, than if they were removable at the pleasure of the crown. At a first glance, this is a paradox: at a second, nothing can be more true. Had they been in this way dependent upon the king, they would have been in some sort dependent upon the people. How so? In virtue of the dependence the king is under with regard to the National Assembly, the chosen dependents of the people. If A is dependent upon B, and B upon C, A too is dependent upon C. Confined to regular and open dependence, to that sort of dependence which results from the power of removal, there is not an axiom in mathematics more indisputable. But where the dependence, in one of the links, is of that irregular kind which is constituted by exposure to secret influence, the chain is broken, the consequence does not follow. How then stands the matter with regard to these magistrates? They are exposed to fall under the dependence of the king, but in such a way as does not bring them at all under the dependence of the people. Had they been removable by the king, they might have been removed upon occasion, in compliance with the wishes of the people. Now, they cannot be removed by the king on that ground, any more than on any other. But in this apparent impotence of the crown lies its real strength. By not being liable to be removed by the king, they are not the less liable to be gained by him: and when once gained by him, they are gained to some purpose: for there is nothing in the world that can take them out of his hands. Fear of being removed is only one means of being gained: but if a man is gained, what matters it whether by his hopes or by his fears? The natural course of things is, that the whole body of these magistrates should be at the king’s devotion. If their own promotion in their own line depends upon him, the means are clear at once: but be this as it may, they will have children or other connexions, whom he can not only place, or refuse to place, but displace. Had they been removable by the king, they would not have been worth gaining by him: for when he had gained a man, he might have been obliged to turn him out, in compliance with the wishes of the people. Being irremovable by him or anybody else, they are worth gaining, and he could not wish for a fairer chance for it. He has their whole lives to gain them in, and they have their whole lives to serve him in. Had he possessed the power of removing them, he could scarcely have exercised it but in subserviency to the wishes of the people. He could scarcely have ventured to exercise it without some known reason capable of being avowed. Were a magistrate of this kind to have been displaced, the people could have said, and naturally would have said, “Why do you do so?” But could anybody say, “Why have you forborne to give a place to a brother of his, or to a son?” The efficacy of a power as an instrument of bad government, is in exact proportion to the irresponsibility of its exercise: hence it is, that in many cases patronage has in this respect so much the advantage over a power of removal.

But were these magistrates as clearly out of the reach of royal influence as they are palpably exposed to it, would their independence be ever the better for the people? By no means. See on this head what has been said of judges [Ch. V. § 1.] Independence without power, is pure liberty: independence coupled with power, is but another word for despotism. Dependence so it be legitimate, not independence, is, as we have there seen, the proper condition, and the only proper condition, of an agent of the people. The thing really mischievous is arbitrary power: whether the hand it is lodged in be called a king’s or a minister’s, or an attorney-general’s, is of mighty little consequence. The thing really mischievous is arbitrary power: and this, it is but too true, these magistrates are in possession of: whether they abuse it in pursuit of views of their own, or in pursuit of the views of a minister, is of little consequence. They may abuse it in both ways; but the greater temptation of the two is that of which the cause lies in themselves. It is only by accident that a minister will have a point to gain, especially a point worth gaining at the expense of so much management. But of his own, a man in their situation, if he has passions, will have points to gain of all sorts, and without end.

Far be it from me on this single error to ground any sinister prophecies. It is not this error, nor a thousand such as this, that could make at this time of day a bad government in France. Where correction is so easy, the most palpable opportunities of abuse can never be productive of any serious mischief. Liberty is in legislation what charity is in religion. When a constitution is sound at heart, a thousand little disorders may find their way into it without producing any very malignant symptoms. But though the constitution of a country were like the stomach of a Mithridates, wholesome diet would still claim the preference.*

4. An inferior inconvenience, though by no means an inconsiderable one, resulting from this monopoly, is the excluding in all cases from the charge of prosecuting, informers, who in some cases are the best prosecutors, and witnesses, who in all cases are the best informers.

(1.) In many cases it is natural that a volunteer, such as the informer, should make a better prosecutor than any one who is such by office. Under what idea is one and the same person appointed in all cases for this duty? That in all cases the same man will be the fittest for it? No: but that in no case it may be without somebody to undertake it. In the way of zeal and activity, when ability is not wanting, nor connivance to be apprehended, much more may be expected from volunteers than from a veteran, in whose bosom the habit of action so naturally begets the habit of indifference. Hope of success is the principle that animates the one: fear of censure, the consideration that compels the other. Indifference is the exclusive attribute of the judge: zeal, not indifference, is the virtue of the prosecutor: against defect of zeal, if found in this station, there would be no remedy: against excess, the remedy is obvious and adequate, the controuling power of the judge. The difference will be the more obvious, and the advantage, not to say necessity, of preferring the volunteer, the more unquestionable, where a factitious reward dependent upon success is the only means of obtaining informers that can be depended upon: as in cases of offence of a purely public nature. How much would the value of the reward be diminished, if the attainment of it were made unavoidably to depend upon the efforts, not of him who is to enjoy it, but of another who has nothing to do with it, and in whom he has perhaps no confidence!

(2.) A witness is the best informer; and thence, as such, the best prosecutor. If, in the capacity of witness, informer, or prosecutor, a man could always be as sure of every other man as of himself, there would be no room for choice. As it happens, this is not the case.

Separate, then, the informer from the witness, what is the consequence? In the first place, you drive men in both capacities from the service of the law. Delinquency gets a double chance of impunity, and the laws a double chance for impotence. They will go unexecuted at one time, because a witness sees nobody that will prosecute; at another time, because he who would have prosecuted has got neither evidence nor information. Evidence, properly so called, is evidence to ground conviction: information is evidence to ground prosecution. In one case, as in the other, where is the sense of rejecting the best evidence, and receiving worse in preference? Whose account deserves to have most weight?—that of a man who knows how the affair passed because he saw it, or that of a man who knows nothing about the matter but from what he has heard somebody else say, or from some inconclusive fragment of circumstantial evidence? Upon the strength of evidence that is to come from me, you venture on a prosecution. What follows? That your fortune and your character are so far at my mercy—at the mercy of one of whom perhaps you have no knowledge. This sort of faith, great as it is, must in many cases be reposed, or prosecution could not take place: but to what purpose create such a necessity out of nothing? How different the case where you, the witness, are received to inform; and having informed, to prosecute! You know what it is you know: on yourself you can depend: of yourself you may be sure.

5. Driving men from the service of the law is not the only inconvenience resulting from this exclusion. It puts the law itself into the power of individuals. Ordain that a prosecutor or an informer shall not be admitted as a deposing witness, what follows? That, to the man whom opportunity has made either the sole observing witness, or a necessary witness, you have given the power of pardoning. He lodges the information, or he commences the prosecution: and when the time comes for giving evidence, his evidence, however conclusive, is not to be heard, and acquittal is the consequence.

When the functions of prosecutor and witness are separate, and the prosecutor finds himself under the necessity of pinning his faith upon the conduct and character of another person in the quality of witness, inaccuracy or subsequent falsehood is not the only danger he stands exposed to. Treachery has a game in its power, which, under the improvident regimen of some systems of law, is probably but too often played, by those whose habitual study it is to elude the laws, against those whose habitual business it is to give them their execution. Falsehood is thrown out as a lure, for an informer and prosecutor to catch hold of: when evidence comes to be given, the falsehood is dropped, and truth substituted in its stead. Such is the situation of every man who, upon the strength of evidence not his own, ventures to step forth and give his service to the public in this perilous and invidious line! responsible, at the peril of fortune and character, for the levity or treachery of another, perhaps unknown to him, and never of his choice. The guilty traitor assumes the accent and the port of injured innocence: the reproach of calumny falls upon the deluded minister of truth and justice. Then comes the licensed accessary after the fact, and sharpens the wound with the venom of his tongue:—“See! this is your own witness! Out of his own mouth you stand condemned!”

Under the English law of evidence, for example, what species of treachery can be more certain of its effect, or more secure from punishment? For the truth told at the trial, there can be none, for it was the truth: for the falsehood before the trial, there can be none, for it was extrajudicial, and not upon oath. Against such vile artifice nothing that can be done by the law on this head can, it is true, afford any perfectly effectual remedy: but we see the danger to which the individual and the cause of justice stand exposed under a separation of the two functions, and one reason, amongst others, why the endeavour of the law should be, not to discourage the conjunction, but to favour it.

The incongruity is more particularly striking in that numerous class of cases where a factitious reward is the law’s sole reliance. When you advertise thus for assistance, what is it you really advertise for? what is it you are really in want of? A prosecutor? No such thing. A prosecutor you might get anywhere: a prosecutor, as such, you have no more need to advertise for than a judge. An informer? Perhaps so. But when you have got one, what are you the better for him, if his information neither is itself evidence, nor leads you to evidence? The one thing needful, the thing you really want, the thing you really mean to get by thus advertising, is evidence. The sort of person you are really in want of, the sort of person you really advertise for, is not so much a prosecutor or an informer, as a witness. Get evidence, you get everything: miss of this, you had better have got nothing. Get a witness, in this way, you get an informer into the bargain: for, in letting you know that it has fallen in his way to be a witness, a man informs. Get an informer who neither was himself a witness (I mean, an observing witness,) nor can give you any information that will answer the purpose of evidence, or lead to evidence, you had better not have had him.* An informer, who cannot himself give you anything that can be accepted as evidence, may still have his use. True. But on what condition? On condition of his enabling you, by means of his information, to get it from some other quarter. But is his information the worse for being capable of being itself used as evidence? On the contrary, no other information can be so satisfactory or so good. When, in the first instance, you can hear how a thing passed, from a man who saw how it passed, to what purpose turn him back, for the sake of hearing of it from somebody else, who knows nothing about the matter but from him? Is your informer the worse informer, because, having been an observing witness, he is capable, and in that character, of becoming a deposing one? On the contrary, he is by so much a better one than any other.

“Oh, but bought evidence is bad evidence.” Is it so? Then why attempt to buy it? If evidence is to be had for nothing, why bid money for it? By thus bidding for it, instead of getting good evidence, you deprive yourself of it: the good you might have had, you yourself turn into bad. If it is not to be had without buying, he then, whoever he is, that supplies you with it—your informer or your prosecutor must have bought it, or you will never get it. But if it must be bought after all, why not by you as well as by him? why not directly as well as circuitously? Why pay two men for the service of one? And what is information itself, but evidence? It may be circumstantial evidence only, and not direct: it may be hearsay evidence only, and not immediate: but evidence it is, as far as it goes, at any rate. If bought evidence is bad evidence, so then is bought information bad information.

This underhand practice, this confusion and double dealing, this contrivance for getting one thing by asking for another, to what cause is it to be ascribed? In England at least, and not improbably in more countries besides England, to a want of concert between the statute and common law. The former having public good, often for its real, and always for its professed end, pursues that end by such means as the nature of things and men supplies, collecting improvement by slow but advancing degrees from the stores of reason and experience. The other, never having had public good so much as for its professed end, pursues in primitive blindness whatever blind track it stumbled upon at first. “Men are of two sorts, the good and the bad: the bad are governed by interest; they act from motives: the good are governed by nothing at all; they act without motives: in them, action is produced in the way of equivocal generation; it is an effect without a cause. Witnesses ought of course to be of the good class: therefore, if a man acts or speaks under the influence of interest, he is not fit for a witness; he ought not to be heard. Of interest there is one kind; and there is but one—that which is created by money. Love of fame has been pronounced the universal passion. The man who said so, wrote a book, in which he thought he had proved it. He was a poet; he knew nothing about the matter. We lawyers know better things. There is no such passion as the love of fame. One passion there is in human nature—the love of money. It is not only the universal passion, but the only one. What is the consequence? That money, and money alone, governs every man: and a particle of it, less than the smallest that ever came out of a mint, is quite sufficient for the purpose. Take any man you will; hold up before his eyes a farthing, or the five-hundredth part of a farthing, it makes no difference: you draw him out of the good class into the wicked class at once. Look the world over: you will not find that man whom the glimpse of a gain to that amount would not convert into a perjurer: although honour, love, friendship, natural affection, even gain under another shape, and that to an amount ever so much greater, were all striving in conjunction to draw him to the other side. As it is impossible, therefore, that a man who could get a farthing by perjuring himself should not perjure himself were he to speak, to what purpose should he be heard? Therefore no man who can be said to have an interest ought to be admitted in character of a witness, in any case. Accordingly, in a thousand cases, he may be admitted notwithstanding; and that, be the value of the interest ever so considerable.” Such is the philosophy, and such the consistency of the common law.

To the authors of the statute law it has happened to reason differently: according to them, the good and the bad are, it should seem, alike obsequious to the dictates of interest, real or imagined; though some are more so to one modification of it, others to another: nor does it follow absolutely, that because a man will tell truth for a certain sum, he will tell lies and perjure himself at the same price. But how long will superior authority suffer itself to be set at nought by subordinate? How long will discernment see its purposes frustrated by perversity and ignorance?

§ 6.

Of Sleeping Laws.

An official monopoly of the right of prosecution is naturally connected with the policy of sleeping laws. It is a fit instrument of such policy, and at first sight one would suppose an indispensable one. It is easy enough to conceive how laws should sleep, when there is but one man in the world that can call them into life. How this should ever happen, when it is in the power of any one of the community whatever to awaken them at pleasure, is not so obvious. Sure it is, that for such a lethargy there can be no place, but for some radical principle of weakness pervading and debilitating the whole system. If the burthen of discouragement that presses upon the faculty of calling the laws into action is so enormous as to amount in general, in quiet times, to a prohibition, laws may remain thus torpid, though that faculty exists in appearance everywhere. But such is not the natural state of things: and a man must have some acquaintance with the English system of procedure, to be able readily to conceive it. Setting out of the question a state of things so singular, a country where the temple of penal justice is thrown wide open is not a natural receptacle for sleeping laws. Those who look upon such furniture as either useful or ornamental, should suffer but one door to that temple, and lodge the key of it in a single hand.

Of the condition of him whose curse, I had almost said whose crime, it is to live under such laws, what is to be said? It is neither more nor less than slavery. Such it is in the very strictest language, and according to the exactest definition. Law, the only power that gives security to others, is the very thing that takes it away from him. His destiny is to live his life long with a halter about his neck; and his safety depends upon his never meeting with that man whom wantonness or malice can have induced to pull at it. Between the tyranny of sleeping laws, and the tyranny of lawless monarchy, there is this difference: the latter is the tyranny of one, the other is the tyranny of millions. In the one case, the slave has but one master; in the other, he has as many masters as there are individuals in the party by whom the tyranny has been set up.

Tyranny and anarchy are never far asunder. Dearly indeed must the laws pay for the mischief of which they are thus made the instruments. The weakness they are thus struck with does not confine itself to the peccant spot; it spreads over their whole frame. The tainted parts throw suspicion upon those that are yet sound. Who can say which of them the disease has gained, which of them it has spared? You open the statute-book, and look into a clause: does it belong to the sound part, or to the rotten? How can you say? by what token are you to know? A man is not safe in trusting to his own eyes. You may have the whole statute-book by heart, and all the while not know what ground you stand upon under the law. It pretends to fix your destiny: and after all, if you want to know your destiny, you must learn it, not from the law, but from the temper of the times. The temper of the times, did I say? You must know the temper of every individual in the nation; you must know, not only what it is at the present instant, but what it will be at every future one: all this you must know, before you can lay your hand upon your bosom, and say to yourself, I am safe. What, all this while, is the character and condition of the law? Sometimes a bugbear, at other times a snare: her threats inspire no efficient terror; her promises, no confidence. The canker-worm of uncertainty, naturally the peculiar growth and plague of the unwritten law, insinuates itself thus into the body, and preys upon the vitals of the written.

All this mischief shows as nothing in the eyes of the tyrant by whom this policy is upheld and pursued, and whose blind and malignant passions it has for its cause. His appetites receive that gratification which the times allow of: and in comparison with that, what are laws, or those for whose sake laws were made? His enemies, that is, those whom it is his delight to treat as such, those whose enemy he has thought fit to make himself, are his footstool: their insecurity is his comfort; their sufferings are his enjoyments; their abasement is his triumph.

Whence comes this pernicious and unfeeling policy? It is tyranny’s last shift, among a people who begin to open their eyes in the calm which has succeeded the storms of civil war. It is her last stronghold, retained by a sort of capitulation made with good government and good sense. Common humanity would not endure such laws, were they to give signs of life: negligence, and the fear of change, suffer them to exist so long as they promise not to exist to any purpose. Sensible images govern the bulk of men. What the eye does not see, the heart does not rue. Fellow-citizens dragged in crowds, for conscience sake, to prison, or to the gallows, though seen but for the moment, might move compassion. Silent anxiety and inward humiliation do not meet the eye, and draw little attention, though they fill up the measure of a whole life.

Of this base and malignant policy an example would scarcely be to be found, were it not for religious hatred, of all hatred the bitterest and the blindest. Debarred by the infidelity of the age from that most exquisite of repasts, the blood of heretics, it subsists as it can upon the idea of secret sufferings—sad remnant of the luxury of better times.*

It is possible, that, in the invention of this policy, timidity may have had some share; for between tyranny and timidity there is a near alliance. Is it probable? Hardly: the less so, as tyranny, rather than let go its hold, such is its baseness, will put on the mask of cowardice. It is possible, shall we say, that in England forty should be in dread of one: but can it be called probable, when in Ireland forty suffer nothing from fourscore?

When they who stand up in the defence of tyrannical laws on pretence of their being in a dormant state, vouchsafe to say they wish not to see them in any other, is it possible they should speak true? I will not say: the bounds of possibility are wide. Is it probable? That is a question easier answered. To prevent a law from being executed, which is the most natural course to take? to keep it alive, or to repeal it? Were a man’s wishes to see it executed ever so indisputable, what stronger proof could he give of his sincerity than by taking this very course, in taking which he desires to be considered as wishing the law not to be executed? When words and actions give one another the lie, is it possible to believe both? If not, which have the best title to be believed? The task they give to faith and charity is rather a severe one. They speak up for laws against thieves and smugglers: they speak up for the same laws, or worse, against the worshippers of God according to conscience: in the first instance, you are to believe they mean to do what they do; in the other, you are to believe they mean the contrary. Their words and actions are at variance, and they declare it: they profess insincerity, and insist upon being, shall we say, or upon not being believed. They give the same vote that was given by the authors of these laws; they act over again the part that was acted by the first persecutors: but what was persecution in those their predecessors, is in these men, it seems, moderation and benevolence. This is rather too much. To think to unite the profit of oppression with the praise of moderation, is drawing rather too deep upon the credulity of mankind.

For those who insist there is no hardship in a state of insecurity, there is one way of proving themselves sincere: let them change places with those they doom to it. One wish may be indulged without a breach of charity: may they, and they only, be subject to proscription, in whose eyes it is no grievance!

§ 7.

Means of engaging Informers and Prosecutors.

Power without will will never produce action. Information and prosecution, like every other sort of action, must have their inducement: and that inducement must be adequate. If this necessary condition exists without the help of law, it is well: if not, the deficiency must be made up by law, or the law will find herself without hands. But inducement does not commence, till discouragements of all sorts have been either surmounted or removed. What if the law herself be found adding to the load?

The discouragements in question apply more particularly, some of them, to the function of informer, others to that of prosecutor. The nature of the obstacle will point out, in both cases, the nature of the resource.

First, as to informing. Two natural obstacles, independently of all factitious ones, tend to dissuade a man from taking upon him this function; enmity and odium: 1. The particular enmity of the individual informed against, and his particular connexions; 2. The odium, or sentiment of aversion, which mankind in general are but too apt to manifest towards the individual who takes upon him to render to the cause of justice this necessary service. These dissuasives may both be termed natural ones. They exist without, and even in spite of, anything done on the part of the law: but even here it is in the power of the law to add to the burthen: nor is even this inconsistency without example.*

The case is still worse, if a man cannot inform without being compelled to prosecute. Nature is not in fault here. Obligation is the pure work of law. But of this presently.

As to remedies: against enmity, there is but one, which is secresy. But this, as far as it can be applied, is an effectual one. Secresy indeed, if in all cases equally and absolutely impenetrable, would be a cloak to calumny. What then is to be done? While no indications of that injury appear, keep the veil inviolate: where any such indications betray themselves, remove it.

Under such conditions, where can be the harm of secresy? The moment it can be productive of any, there is an end to it. The moment it can be of any use to anybody that the informer should be visible, he is brought to light.

So long as the information is not chargeable with calumny, to what purpose should the author of it be known? If it be true, instead of harm it has done good: if false, then indeed there has been harm done; but unless it be not only false but groundless, even here there is no injury.

To judge whether a charge, being false, is also groundless, is it necessary to know, in the first instance, who gave the information? By no means: before you have any concern with the informer, you must look in the first place to the evidence. Witnesses, as such, are known at any rate: if in that character a man calumniates, in that character you may punish him: a veil which covered him in no other character than that of informer is not worth removing, for it has proved no screen to him. If witnesses are altogether wanting, then indeed, but then only, is it material to look for the informer.

Dragging a man thus to light who wishes to be concealed, can be of no use but for one or other of two purposes: to subject him to punishment under the name of punishment; or to subject him to the burden of making satisfaction, which with respect to him is the same thing. If for either purpose discovery be deemed necessary, discovery will be made; if not for either, what use in making it? But the mischief of making it is what we have already seen.

Great outcries have been made in different countries against secret accusations, and not without great reason. Why? Partly because the veil was made so thick as to serve as a cloak to calumny; partly because the laws thus executed were the work and the instruments of despotism. Were the calumny ever so conspicuous, a single person had it in his power to screen it: it might oftentimes be his interest so to do, and in doing so he was irresponsible. Where the law itself is odious, every thing and every person occupied in its service, shares the odium. How many pure and excellent articles in the apparatus of the law have lost their character in this way! and how many bad and unserviceable ones have, by their very unserviceableness, become popular! See the Chapter on Juries. Few popular sentiments that have not their root in reason: still fewer that have not spread beyond the reason out of which they grew.

By whom has the clamour against secresy been raised? Sometimes, perhaps, by men who, without being delinquents, feared the being treated as such by this means; but by delinquents always, and of course. Had it, however, been confined to delinquents, it would not on that account have been always undeserving of censure. Under a tyranny, honest men are delinquents: and to do what can be done towards weakening the power of the laws, is the interest of honest men. If indeed the veil of secresy is tied down with such tightness as to serve as a cloak to calumny, whatever outcry has been raised against it, has been just in every point of view: in that case all men, delinquents or not, are interested in its being removed.

When a defendant, not content with saving himself, sets up an allegation of calumny, and requires that the author of it may be made known, in order to be made responsible for the wrong, to whom ought it to be given to decide upon this claim? Not to the pursuer-general, but to the judge. Why so? Because this, of all others, is a question not to be decided but in public, and upon argument: but to decide upon a question in public, and upon argument, is to judge. To vest the decision in the pursuer-general without argument, would be to invest him with an arbitrary power, which, like every other arbitrary power, a man will, at one time or other, find it his interest to abuse. He would possess a power not only of licensing, but of perpetrating calumny, and that without controul. Familiarized with this enormity in proportion to his continuance in office, the impression it made on him would grow gradually fainter and fainter; he would grow weary of prosecuting it; he would come to regard it without emotion, and to pass it by without notice. What if, in addition to this negative constant interest, he happens in any case to have a positive advantage to gain by throwing a cover over the wrong?

The modification thus given to the law of secresy will not, in deterring false information, drive away true. A man who believes what he says to be true, will hardly expect to see it appear not only false, but so palpably false as to be deemed groundless and calumnious.

The same remedy applies equally to the odium.

But here, however, it is not the only one. This discouragement has its root in vulgar error: a weed which legislation, would she but stoop to take reason for her instrument, need scarcely fear the not being able to eradicate. “Is the law a mischievous or an useless one?—Its existence is a nuisance. Is it an useful one? To be so, it must be executed: and how is it to be executed without an informer? Without this coadjutor, a judge is but an empty name. Each in his sphere, they co-operate towards the same end. Shall the judge then be held in honour, and the informer, without whom he is nothing, be vilified and contemned?” Such is the language of plain truth: and why should the law grudge to use it? Can anything be more satisfactory or unanswerable? What error, what prejudice, could stand against the highest authority, supported by the highest reason? From what source could instruction fall with greater weight than from the mouth of law?

The experiment of employing reason in government is, it is true, almost an untried one. Hitherto man has scarcely been considered by law as an animal susceptible of intelligence. Her language has been simply that of will forcing will, not of understanding instructing understanding. The preambles of the English statutes are rather the discourse of the draughtsman to the legislator, than that of the legislator to the people. And, to whomsoever addressed, what is the stuff they are made of?—“Whereas doubts have arisen”—“Whereas inconveniences have ensued.”—As coarse and as flimsy almost as that of oaths of office [see Chap. V. § 11.* ] In France, where to act in the strictest concert with public opinion is the boast of government—in France, at least, where legislation, having neither disdained nor feared to grapple with one of the most violent and inveterate of prejudices,† has so lately won the completest victory, the task of instruction will not be thought foreign to her office.

Lastly, as to the function of voluntary prosecutor. Take it separate from that of informer, it stands clogged with two discouragements, trouble and expense.

Of the trouble, a certain measure is inherent and unavoidable. The business of legislation under this head is to find out the minimum, and to reduce the actual measure to this minimum. Of this, sufficient has been said in a former chapter.‡

Of the expense, the prosecutor may be disburdened altogether: and since he may, he ought to be. Equity in this concurs with policy. Where all men reap the benefit, why should one man alone bear the burden? See the Chapter on Law-Taxes. If you will not ease him of it, the least thing you can do is to forbear to add to it. But, if this be your object, you must steer a course in every point the opposite of that pursued by the English system. You must neither fabricate expense openly, nor, what is much worse, make trouble in order to make expense. You must neither plunder him for the public by taxes, nor for individuals by fees. You must neither commit these abuses, nor, what is as bad, connive at them.

The reproach of inconsistency is not the only one you incur by stripping a man thus with one hand, while you pretend to reward him with the other. It is not one, nor two, nor ten shillings, given in the way of reward, that makes up for the discouragement of one shilling taken in the way of tax. The tax is certain, and must be paid in the first instance: the reward is remote; it is uncertain in its very nature, and in the current systems rendered ten times more so by the contrivances for substituting chance or fraud to justice, and violating in solemn mood and form the assurances of the law. What if the shilling you thus begin with demanding of him is more than he has to give? Of the twenty thousand pound prize, what is the worth to him who has not money for a ticket?—But in this state of inability are the bulk of men.

When so much of the expense as has been the work of law has been removed by law, and, by the removal of this factitious part of the burden of expense, the whole mass reduced to that part of it which may be termed natural, a farther problem in this branch of economy is the reduction of this natural part to so much of it as is unavoidable: concerning which, see a preceding chapter (Ch. IV. Of Appeals, § 3.)

These reductions being effected, then, and not till then, is the time for indemnification. Annihilate what can be annihilated; remove from the shoulders of the individual to those of the public, that part of the burden which must be borne by somebody.

Indemnification, it may be observed, is not complete unless it extends to loss of time: but this part of it is not necessary, and would in a certain point of view be dangerous. This occupation being less irksome than most others, people of all classes would be glad to engage in it; and the advantage they would find of employing their time this way rather than in their natural and more laborious calling, would be a source of inordinate expense, and a sort of premium for litigation and delay. To encourage individuals in taking the business out of the hands of a public officer who has been bred to it, can hardly be of use. The great, if not sole use of the open system, is its capacity of affording a spur and a check to the power of that officer upon extraordinary occasions. The working classes, who compose the great bulk of the community, would in general, by reason of their ignorance, be manifestly unfit for such a charge: nor is it natural that a man of that description should wish to take the business out of the hands of a person so much better qualified to perform it, unless with some improper view. But if a man whose education has fitted him for the task, and whose purse can afford to make the public a present of his time, should be willing to take the burden upon himself without any additional expense to the community, why hinder him?

From the notion of indemnification comes the custom of giving what is called costs. This, if when obtained it were equal to the expense, which in general it is not, nor indeed without great danger of abuse can well be made, would still be very far from adequate. Remoteness and uncertainty concur in diminishing its apparent, and under the English system perhaps still more its real, value. It is given—when? After the prosecution is gone through. And then on what conditions? Provided the event has been successful:—provided the substance of the defendant is sufficient to defray it:—provided the expenses of defence have not absorbed that substance:—and provided his endeavours to withdraw it out of the reach of seizure have not been attended with effect. What if he be known to have nothing? The value of this indemnification is then in the same case: but in this case are the bulk of men.*

An encouragement that applies to both functions at once, is of the negative cast; the avoiding to clog the former of them with the obligation of adding to it the latter. To compel the informer to take upon him the task of prosecution, is in other words to reject information in all cases where information is to be had from those only whom it does not suit to prosecute.

This forced conjunction counteracts, in a variety of other shapes, the ends of justice: it renders the execution of the law in some instances less certain than it would be, in others more severe than it need be, and in both cases to the public more expensive. Leave it optional, paying the informer only as informer, and easing him of the expense and charge of prosecution, the purposes of justice are in a variety of ways proportionably served:—

1. Admit a witness, or any other person, to give information without being obliged to prosecute, the reward you offer him may be much less than if that burdensome and hazardous obligation were imposed upon him. Hence a saving to somebody: to the public, if the reward is furnished by the public purse at large: to the public, or to the delinquent, as shall be thought proper, if the substance of the delinquent is the only source from which it is drawn. So much as to what concerns frugality.

2. But the less the reward given for evidence, the less is the temptation to perjury it creates.

3. The less strong also of course is the suspicion of perjury which it excites; the less strong the objection it affords to the credit of the witness thus engaged. Rectitude of decision is thus promoted, the danger of erroneous decision lessened, in a double way: false witnesses are less liable to arise, good witnesses less liable to fail of obtaining the credit which is their due.

On the other hand, if you force your witness to turn prosecutor, and make his reward depend not only upon the success of the prosecution, but upon the solvency of the parties prosecuted, you drive from the service, not only here and there a witness, and here and there a prosecutor, but, where that solvency is dubious, all witnesses and all prosecutors whatever. You give, in short, impunity to poor delinquents, that is, to the great bulk of delinquents.

The public could afford to prosecute in all instances. It would be its own insurer. Its gains in one instance would compensate its expenses in another. This might be the case, even under all that enormity of unnecessary expense which characterizes the English system: much more, were that enormity reduced by the expedients pointed out in a preceding chapter (Ch. IV.) to the standard laid down by nature. Individual adventurers cannot thus insure themselves: they must pick out with care the profitable adventures; the unpromising ones they must let alone. But it is not executing the law in here and there an instance, that will answer the purpose of the law. Upon whom ought its denunciations to be carried into effect? Upon this or that delinquent? No: but upon every one. Upon the wealthy alone; that is, upon the few? No: but upon the poor rather; that is, upon the many.

4. On the other hand, receive information from anybody that will give it, without attempting to saddle him, in return for this service, with the burden of prosecution, you will get an informer without difficulty, in the case of many a poor delinquent, in whose instance you could have got no prosecutor.

5. You may choose in each instance, whether, for the sake of lenity, you will reduce the measure of punishment from its present pitch, or, for the sake of public economy, keep it as it stands. Give up the idea of looking to the delinquent’s substance as the sole fund for reward, you may choose whether the present forfeiture shall, for the sake of the delinquent, be reduced, or, for the benefit of the public, be kept entire. As it is, the property of delinquents seems to be looked upon as so much refuse, which may be disposed of without thought, and dissipated without extravagance. The supposition is not altogether so just as it is an easy one. Ten pounds is still ten pounds, in whatever hands it may be to be found. So says economy: nor will compassion regard it as a matter of indifference. The delinquent, though a delinquent, is not the less a member of the community: his suffering is just as much the suffering of the community as that of any other more irreproachable individual. Even were his happiness worth nothing in the account of happiness, his money would not be worth the less in the account of money. If it be not worth saving for his sake, for the sake of the public it will not be less worth taking or keeping than that of a better man.

In this, as in so many other instances, we may see the simple law of liberty effecting that, to which coercion, with all its exuberance of modification, is unequal. Depart from that law on either side, compel informers to become prosecutors, or forbid them, in either case you do mischief, and counteract your own purpose.

The law of England signalizes itself in both these ways. In one class of instances it compels those who inform to prosecute:* in another, by refusing to hear the testimony of him who prosecutes, it drives from its service the best species of informer, and with him the voluntary prosecutor, though upon the chance of finding such a servant, no official one being in these instances provided, depends the whole force and efficacy of the law.*

Whence all this discouragement, when encouragement was so much wanted? Not so much from any erroneous views, as from mere oversight and negligence. It has been the natural, and in a manner necessary, effect of the omitting to establish a public prosecutor: a function, under every other system perhaps but the English, provided for with an attention little less regular than that bestowed upon the office of judge. No such provision having been made, individuals must be trepanned into the service of justice, or justice, instead of being so often left undone, would scarce ever be done. In this service, as in others, if you have no regular force on foot, you must put up with volunteers or pressed men, and get them as you can. What in the military service is regarded as abuse, is the regular and sole practice in this branch of the legal. You lie in wait for a man till his peace has received a wound from injury; you catch him intoxicated with passion, and in that state you inlist him into a service, of which, in addition to the burden, he is to bear all the expense, whether he has funds for it, or whether he has none. You single out the distressed: and, as if unmerited suffering had not been sufficiently severe, you load them and squeeze them, not only for the benefit of the public at large, but to help to pamper a swarm of titled idlers, who, without so much as the pretence of stirring a finger, are gorged with wealth, which in France would be deemed excessive if given in recompense for the greatest service.† [See once more the Chapter on Law-Taxes.] Abuse is thus interwoven with abuse: and each gives shade and protection to the other. Out of extortion and peculation grow inaccessible justice and paralytic laws.

Discouragements, as well natural as factitious, once cleared away, the more perfectly they are cleared away, the less need there will be of the expense of positive and factitious encouragements. For obtaining prosecutors, no such expense will be necessary: the official prosecutor, standing bound to charge himself with every prosecution that shall have been put into his hands, answers every purpose. And when mere information is all that is wanted—information exempted by nature from trouble and expense, and by plighted secresy from odium and fear of enmity—a very small portion of factitious encouragement, a very moderate reward, may in general suffice.

Discouragements, however, being removed, the path of encouragement is smooth and easy. As far as odium is concerned, the former can scarcely have been cleared away, but the latter must in some degree have taken its place. The function of a minister of the law can scarcely be regarded with an eye of pure indifference. If not despised, it will be respected: despised perhaps during the reign of prejudice, respected as soon as reason mounts the throne.

For applying to this purpose the principle of honour, several expedients may be employed:—

1. Stating the title to respect and gratitude, possessed by these not less than other ministers of justice, and, in some such manner as above exemplified, recognizing it in the words of the law itself.

2. Requiring the judge to employ his authority to the same effect in a more particular manner in each individual instance, giving thanks in the name of the public to the individual from whom it has been receiving a service of this nature.

3. In cases where the service appeared considerable, and in the course of it any particular share of merit had been displayed, a ticket might be given, entitling the person thus rewarded to a distinguished and particularly commodious seat in the court in which the service had been performed.‡ Here we have frugality combined with exemplarity, two properties not less to be wished for in the discipline of reward than in that of punishment.∥

4. To this might, in some cases, be substituted or added a medal or medallion, rising in value in proportion to the importance of the service.

5. Pecuniary reward might also be substituted or added, according to circumstances; in such manner as to suit the situation of people of different conditions in life. To him whom indigence has sunk below the sphere of honour, money might be given alone: to one not so high as to be above money, yet too high to hazard honour in pursuit of it, money and honour might be given in conjunction: while a man, to whose dignity it would seem a debasement to stoop for money on such terms, might waive altogether the vulgar inducement, and receive the honorary recompense in all its purity. Thus diversified, the encouragement would, in one or other of its branches, be upon a level with every station, and match with every taste.

To the rendering the service of the laws in this instance an honourable service, one condition is indeed necessary, which is, that the laws themselves be not such as it would be dishonourable to make. The expedient therefore will not serve where the law itself is but the tool of despotism. It is only on a free soil that it can manifest its full virtue. It consists not with the blind and dastardly policy of sleeping laws. It is incompatible with that almost equally shameful negligence which suffers the body of the laws to remain clogged and enfeebled with a heap of obsolete and confessedly useless matter, which, so far from wishing to see brought into activity, no man would wish, nor, but for sluggishness and panic terrors, endure, to see exist. Honour can scarcely be expected to lend its sanction to the support of establishments in which abuse is neither avoided in practice, nor so much as disclaimed in principle. What if, instead of being disclaimed, it be openly professed? Honour will with difficulty be brought to lend its sanction to revenue, where the treasure collected in enormous heaps from the labour of all, is styled the property of one, and converted in such large proportion into the wages of corruption, or pampered idleness, or unnecessary service. In France, where law is, in the language of plain truth, and not in the jargon of fiction, the expression of the general will, and where profusion, if it exist, will be the work of honest oversight, not of knavish system, honour may be given with as little scruple to the occasional as to the constant ministers of justice.

Where the service of the laws, instead of attracting odium, is attended with honour, secresy, the other remedy against odium, will be the less necessary. It will then only be recurred to, when private enmity happens to be an object of serious apprehension: and that will be the case only here and there by accident.

Factitious encouragement is not only not always necessary to the execution of the laws, but, unless applied with due attention to human feelings, it may counteract the design instead of forwarding it. Such is the case, where bare indemnification from expense, or even an allowance short of such indemnification, is given under the name of reward: such again is the case, where pecuniary reward is given alone, without any mixture of honorary, and without the capacity of being exchanged for honorary.

It is the nature of money, when given in the character of a reward, and in a proportion not suited to the pecuniary circumstances of him to whom it is offered, to contract a dishonourable tinge: nor is anything more common than to see the repulsive quality of the alloy an overmatch for the attractive quality of the pecuniary advantage. In this way, while you are applying encouragement in name, you may be applying not only no encouragement, but actual discouragement, in effect. This is universally the case, where the costs of prosecution are thrown upon the informer, while the chance of the reward is not worth the certainty of the expense. While seeming to invite, you actually drive away, men of every description. Those who profess to disdain money cannot serve you, because money is offered them, and nothing else: those who would be glad of money will not serve you, because the money you offer them is worth nothing. Are examples wanted? The English statute-book is full of them.

As to what concerns witnesses as such, considered apart from the contingency of their appearing in the character of informer or that of prosecutor, the means to be taken for procuring them, and the question whether on any and what grounds any person ought to be excluded or excused from serving the law in this capacity: these are inquiries which belong, not to the present subject, but to that of procedure.

§ 8.

Differences between the English Attorney-General, the French Attorney-General, and the proposed Pursuer-General.

To judge from names, the business of prosecuting should stand on the same footing in England as it did in France. In France there is an office which gives to the possessor the title of Attorney-General; so is there in England: but in point of extent, nothing can be more different than their functions. All that the English attorney-general does, was done by the French officer of the same name: but the latter did an infinity of business with which it is not the custom for the former ever to interfere. In a word, in France the attorney-general was the sole prosecutor. Add, to the cases where in England the attorney-general appears as prosecutor, those in which private persons act under that name, and those in which the prosecutor is commonly spoken of under the appellation of informer, you have a tolerable idea of the function of the attorney-general in France. Numbers must bear some proportion to duty. In England, the attorney-general has one assistant, the solicitor-general; and for any real necessity there is for his service, even that one might be spared. In France, the attorney-general was Legion. The head magistrate of that name had either a deputy (substitut) or a namesake, in every court of criminal jurisdiction. In that country, judges themselves were scarce looked upon as more necessary than public prosecutors.

In France, this officer was the servant of the public, and the standing instrument of penal justice: if he served the king, it was by accident, as he might serve any other individual. In England, he is the servant of the king: he is the instrument of the king’s passions: or, to speak with propriety (for the king has no passions,) of the passions of the minister. In this capacity, that the public may derive a benefit from his service is not to be denied: but so may it from that of the law-agent of any other individual. The principal object is the service of the king: I mean always, of the minister. The service, if any be done to the public, comes in collaterally and by accident. In treason, and all other offences in which the king is the party more immediately injured, there would indeed be no want of his activity: but treason happily is not the offence of every day. In offences against the revenue you see now and then some marks of his existence, because the whole revenue of the public is called, what so enormous a share of it really is, the revenue of the king. But here the activity of this officer is necessarily circumscribed by the practice of voluntary prosecutors under the name of informers, and the natural incapacity he is under of transacting any business which has not the metropolis for its scene.

But the most conspicuous, and not the least active, of his functions, is pure unmixed mischief: punishing where prevention is as impracticable as it is undesirable: sacrificing to the passions of individuals one pretended delinquent out of ten thousand, without selection and without rule: destroying, as far as it can be destroyed, by efforts as impotent to every public purpose as they are distressful to individuals, the liberty of the press: contributing what depends upon him towards smothering the public voice, and setting the trustees of the people above the controul and censure of their principals: and punishing men for disobedience to laws which have no existence. Here he is by engagement the servant of the king, and too often by loan the servant of those who ought to be the servants of the people. Can he too be on this account styled the servant of the people? Yes; if the executioner can be called the servant of the victim on whom he performs his office.

As to the laws on which depend liberty, property, personal safety, life, honour—in short, almost the whole body of the laws to which the welfare of the community is attached, his office might as well have no existence, for any benefit this most important class of the laws is in use to reap from it.

How should they? Of himself, he has no power: he has no funds at his disposal. He is not in fact a minister of justice, any more than any private attorney is a minister of justice. The treasury-board are his clients: the treasury-board are his masters. Except his uniting in some sort the unnaturally-separated functions of the advocate and the attorney, he is nothing more than an advocate whom the managers of the king’s money have engaged to employ in causes of a certain description during pleasure. At his own expense he may indeed prosecute any body and for anything, just as any other advocate or attorney, just as any other man, might do: but why should he, any more than any other man? In instituting prosecutions he has no greater share of authority, no right more extensive, than every other man: not only he, but his clients, the managers of the king’s money, have no more. What distinguishes them in this particular from any private man is, not their having more authority, but their having the disposal of more money. The king may employ an attorney, just as anybody else may. What distinguishes this attorney of his from other men’s attorneys, is, that his client has more money to employ in law than anybody else.

What this great officer possesses of peculiar and real power is all sheer abuse; which, however, like so many other abuses, may by accident have its good effects, by operating as a corrective to some greater abuse: I mean, the power of issuing noli prosequi’s; the power of stopping prosecutions when instituted by individuals. If, in the countless multitude of the laws, there be any which are not fit to be executed, that is, which ought not to exist (and multitudes of such there doubtless are,) this power may in so far be capable of being put to a good use. If, among the laws fit in general to be executed, there be any which in certain particular cases it were better not to execute, so far likewise the power is capable of being put to a good use. But what, in cases like these, is the proper course? Keeping on foot this power? No: but making the requisite alteration in the body of the laws. Abolish those of the first-mentioned description: to those of the latter, add the requisite exceptive clauses. In the laws lies the disease: in the laws lies the proper and only effectual remedy. As to him, what can be expected from him, with his precarious palliative? To which of all these distempered parts will he apply it? To this one, to that one, or to neither? Who will say? It depends upon the attorney-general of the moment, and upon the momentary humour of the attorney-general: upon the humour of a mercenary, whom no impossibility excludes from understanding the true interest of the public in its various branches, but whose interest and occupations have not been of such a nature as to present him any peculiar occasion, or any peculiar inducement, to understand it. Why do I say the attorney-general? It depends jointly upon the humour and supposed interest of this officer, and his superior the minister; whose caprices and whose passions club together in the dark, in unknown and inscrutable proportions, to compose this work of despotism. While a dispensing power, so calling itself, is regarded with so much horror, is it so sure that the same thing, under this other name, will never be made use of to any other purpose than a good one? Is it so sure that, in the filling of this office, no minister will ever pitch upon a lawyer who is not wiser than the laws, or whose probity is not equal to his wisdom? And were this enormous power as incapable, as it is susceptible, of being abused, what to the public would be its value?*

§ 9.

Defender-General—Necessity of the Office.

Is the office of defender-general a needless one? is it much less indispensable than that of pursuer-general? can it be right that there should be always somebody for the prosecution of delinquency, and that there should never be anybody for the defence of innocence?

In England, as in France, the plan of policy on this head remains still in the same state in which it was first traced out by the injustice and insensibility of primeval barbarism. Prosecution was not only the principal object of government, but the sole one: it filled the eye, and bounded the horizon, of despotism. That object provided for, the defendant was to take care of himself as he could. It was the interest of the king that those who were guilty should be punished: the mischief sustained by the offence was his in some cases: the profit to be made out of the punishment might be made his in all cases. It was no interest of the king’s, that those who were not guilty should escape. By their punishment he might get something: by their acquittal he could get nothing: their acquittal was therefore their concern, and none of his: they were accordingly left to provide for it as they could: and it was God’s business, if such were his pleasure, “to send them a good deliverance.” In the eye of common sense, of justice, and of humanity, there are two parties to every cause: but depotism acknowledges but one.

In the pursuer-general you have a magistrate ready to be charged with the cause of a plaintiff too poor and too friendless to find another advocate. But may not a poor man have a claim to defend himself against, as well as a claim to make? And under a penal prosecution, is the poor man, of all others, to have none to help him.

EMANCIPATE YOUR COLONIES!

ADDRESSED TO THE NATIONAL CONVENTION OF FRANCE, ANNO 1793.

SHEWING THE USELESSNESS AND MISCHIEVOUSNESS OF DISTANT DEPENDENCIES to an EUROPEAN STATE

BY JEREMY BENTHAM, of lincoln’s inn, esq.

FIRST PUBLISHED FOR SALE IN 1830.

Jeremy Bentham to the National Convention of France.

Your predecessors made me a French Citizen: hear me speak like one. War thickens round you: I will show you a vast resource:—Emancipate your Colonies. You start: Hear and you will be reconciled. I say again, Emancipate your Colonies. Justice, consistency, policy, economy, honour, generosity, all demand it of you: all this you shall see. Conquer, you are still but running the race of vulgar ambition: emancipate, you strike out a new path to glory. Conquer, it is by your armies: emancipate, the conquest is your own, and made over yourselves. To give freedom at the expense of others, is but conquest in disguise: to rise superior to conquerors, the sacrifice must be your own.—Reasons you will not find wanting, if you will hear them: some more pressing than you might wish. What is least pleasant among them may pay you best for hearing it. Were it ever so unpleasant, better hear it while it is yet time, than when it is too late, and from one friend, than from a host of enemies. If you are kings, you will hear nothing but flattery; if you are republicans, you will bear rugged truths.

I begin with justice: it stands foremost in your thoughts. And are you yet to learn, that on this ground the question is already judged?—that you at least have judged it, and given judgment against yourselves?—You abhor tyranny: you abhor it in the lump not less than in detail: you abhor the subjection of one nation to another: you call it slavery. You gave sentence in the case of Britain against her colonies: have you so soon forgot that sentence?—have you so soon forgot the school in which you served your apprenticeship to freedom?

You choose your own government: why are not other people to choose theirs? Do you seriously mean to govern the world, and do you call that liberty? What is become of the rights of men? Are you the only men who have rights? Alas! my fellow citizens, have you two measures?

“Oh! but they are but a part of the empire, and a part must be governed by the whole.”—Part of the empire, say you? Yes, in point of fact, they certainly are, or at least were. Yes: so was New-York a part of the British empire, while the British army garrisoned it: so were Longwy and Verdun parts of the Prussian or the Austrian empire t’other day. That you have, or at least had possession of them, is out of dispute: the question is, whether you now ought to have it?

Yes, you have, or had it: but whence came it to you? Whence, but from the hand of despotism. Think how you have dealt by them. One common Bastile inclosed them and you. You knock down the jailor, you let yourselves out, you keep them in, and put yourselves into his place. You destroy the criminal, and you reap the profit, I mean always what seems to you profit, of the crime.

“Oh, but they will send deputies; and those deputies will govern us, as much as we govern them.” Illusion! What is that but doubling the mischief, instead of lessening it? To give yourselves a pretence for governing a million or two of strangers, you admit half a dozen. To govern a million or two of people you don’t care about, you admit half a dozen people who don’t care about you. To govern a set of people whose business you know nothing about, you encumber yourselves with half a dozen starers who know nothing about yours. Is this fraternity?—is this liberty and equality? Open domination would be a less grievance. Were I an American, I had rather not be represented at all, than represented thus. If tyranny must come, let it come without a mask. “Oh, but information.” True, it must be had; but to give information, must a man possess a vote?

Frenchmen, how would you like a parliament of ours to govern you, you sending six members to it? London is not a third part so far from Paris as London from the Orkneys, or Paris from Perpignan. You start—think then, what may be the feelings of the colonists. Are they Frenchmen?—they will feel like Frenchmen. Are they not Frenchmen?—then where is your right to govern them?

Is equality what you want? I will tell you how to make it. As often as France sends commissaries with fleets and armies to govern the colonies, let the colonies send commissaries with equal fleets and armies to govern France.

What are a thousand such pleas to the purpose? Let us leave imagination, and consult feelings. Is it for their advantage to be governed by you rather than by themselves? Is it for your advantage to govern them rather than leave them to themselves.

Is it then for their advantage to be governed by a people who never know, nor ever can know, either their inclinations or their wants? What is it you ever can know about them? The wishes they entertain? the wants they labour under? No such thing; but the wishes they entertained, the wants they laboured under, two months ago: wishes that may have changed, and for the best reasons: wants that may have been relieved, or become unrelievable. Do they apply to you for justice? Truth is unattainable for want of evidence: You get not a tenth part, perhaps, of the witnesses you ought to have, and those perhaps only on one side. Do they ask succours of you? You put yourselves to immense expense: You fit out an armament, and when it arrives, it finds nothing to be done; the party to whom you send it are either conquerors or conquered.—Do they want subsistence? Before your supply reaches them, they are starved. No negligence could put them in a situation so helpless as that in which, so long as they continue dependent on you, the nature of things has fixed them, in spite of all your solicitude.

Solicitude, did I say? How can they expect any such thing? What care you, or what can you care, about them? what do you know about them? What picture can you so much as form to yourselves of the country? what conception can you frame to yourselves of manners and modes of life so different from your own? When will you ever see them? when will they ever see you? If they suffer, will their cries ever wound your ears? will their wretchedness ever meet your eyes? What time have you to think about them? Pressed by so many important objects that are at your door, how uninteresting will be the tale that comes from St. Domingo or Martinique?

What is it you want to govern them for? What, but to monopolize and cramp their trade? What is it they can want you to govern them for? Defence? Their only danger is from you.

Do they like to be governed by you? Ask them, and you will know. Yet why ask them, as if you did not know? They may be better pleased to be governed by you than by anybody else; but is it possible they should not be still better pleased to be governed by themselves? A minority among them might choose rather to be governed by you than by their antagonists, the majority: but is it for you to protect minorities? A majority, which did not feel itself so strong as it could wish, might wish to borrow a little strength of you:—but for the loan of a moment, would you exact a perpetual annuity of servitude?

“Oh, but they are aristocrats.” Are they so? Then I am sure you have no right to govern them: then I am sure it is not their interest to be governed by you: then I am sure it is not your interest to govern them. Are they aristocrats? they hate you. Are they aristocrats? you hate them. For what would you wish to govern a people who hate you? Will they hate you the less for governing them? Are a people the happier for being governed by those they hate? If so, send for the duke of Brunswick, and seat him on your throne. For what can you wish to govern a people whom you hate? Is it for the pleasure of making them miserable? Is not this copying the Fredericks and the Francises?—is not this being aristocrats, and aristocrats with a vengeance?

But why deal in suppositions and put cases? Two colonies, Martinico and Guadalupe, have already pronounced the separation. Has that satisfied you? I am afraid rather it has irritated you. They have shaken off the yoke; and you have decreed an armament to fasten it on again. You are playing over again our old game. Democrats in Europe, you are aristocrats in America. What is this to end in? If you will not be good citizens and good Frenchmen, be good neighbours and good allies. When you have conquered Martinico and Guadalupe, conquer the United States, and give them back to Britain.

“Oh, but the Capets will get hold of them.” So much the better. Why not let the Capets go to America? Europe would then be rid of them. Are they bad neighbours? rejoice that they are at a distance. Why should not the Capets even reign, since there are those that choose to be governed by them? why should not even the Capets reign, while it is in another hemisphere? Such aristocrats as you do not kill, you yourselves talk of transporting. What do you mean to make of them when transported? Slaves? If you must have slaves, keep them rather at home, where they will be more out-numbered by freeman, and kept in better order. If you mean they should be transported without being enslaved, why not let them transport themselves?

Does your delicacy forbid your communicating with the degraded despots? You need not communicate with them: your communication is with the people. You take the people as you find them: you give them to themselves: and if afterwards they choose to give themselves to anybody else, it is their doing: you neither need, nor ought to have any concern in it.

“Oh, but the good citizens! what will become of the good citizens?” What will become of them? Their fate depends upon yourselves. Give up your dominion, you may save them: fight for it, you destroy them. Secure, if you can do it without force, a fair emission of the wishes of all the citizens: if what you call the good citizens are the majority, they will govern; if a minority, they neither will nor ought to govern: but you may give them safety if you please. This you may do for them at any rate, whether those in whose hands you find them submit to collect the sense of the majority or refuse it. Conclude not, that if you cease to maintain tyranny, you have no power to insure justice. Think not, that those who resist oppression must be deaf to kindness. Set the example of justice: you who, if you preferred destruction, might use force, set the example of justice: the most perverse will be ashamed not to follow it. How different are the same words from a tyrant and from a benefactor! Abhorrence and suspicion poison them in the one case: love and confidence sweeten them in the other.

Would you see your justice shine with unrivalled lustre? Call in commissaries from some other nation, and add them to your own. Do this; do it of your own accord: it will be certain you can mean nothing but justice. The cool and unbiassed sentiments of these strangers will be a guide to the judgment, and a check upon the affections, of your own delegates. They will be pledges and evidence, to you and to the world, of the probity of their colleagues. Think not that I mean to propose to you to crouch to the insolence of armed mediation, or to adopt the abominations of the guaranteeing system: think not that I am for acting over again the tragedies of Poland, Holland, or Geneva. The business to be settled is—not constitution but administration: not perpetual law but temporary arrangement. The mediators come only because you bid them, and they come unarmed.

Thus you may save the good citizens: for you may save everybody. Keep to the plan of domination, you save nobody. The first victims are the very persons you are so solicitous to save: so at least it is in two great islands: for there they are already overpowered. Then comes your armament, with double destruction at its heels: if it is repulsed, you are disappointed and disgraced; if it conquers, then come beheadings and confiscations. Such are the two plans. Which, then, do you choose? Universal safety, or reciprocal destruction?—abhorrence, or admiration?—the curses of your friends, or the benedictions of your enemies?

But suppose the colonists unanimous, and unanimous in your favour, ought you even then to keep them? By no means: they are a million or two: you are five or six-and-twenty millions. Think not, that because I mentioned them first, it is for their sake in the first place that I wish to see them free. No: it is the mischief you do yourselves by maintaining this unnatural domination; it is the mischief to the six-and-twenty millions that occupies a much higher place in my thoughts.

What if colonies, as they are called, are worth nothing to you? What if they are worth less than nothing? If you prefer injustice (pardon me the supposition,) are you so fond of it as to commit it to your own loss?

What, then, should they be worth to you, but by yielding a surplus of revenue, beyond what is necessary for their own maintenance and defence? Do you, can you, get any such surplus from them? If you do, you plunder them, and violate your own principles. But you neither do, nor ever have done, nor intend to do, nor ever can do, any such thing.

The expense of the peace establishment you may know: and I much question whether any revenue you can draw from them can so much as equal that expense. But the expense of defence in time of war you do not know, nor ever can know. It is no less than the expense of a navy capable of overawing that of Britain.

“Oh, but the produce of our colonies is worth so many millions a-year: it has been, and when quiet is restored will be again all this, if we were to give up our colonies, we should lose.” Illusion! The income of your colonies your income? Just as much as that of Britain is your income. Have colonists, then, no properties? If they are theirs, how are they yours? Are they theirs and yours at the same time? Impossible. If out of a hundred millions they spend or lay up a hundred millions, pray how much is there left for you? Can you take a penny of that income more than they choose to give you? or would you, if you could? We have no such pretension, unless it be over conquered colonies, in our land of what you call imperfect liberty.

“Oh, but of this income of theirs, a great part centres here: it comes to buy our goods: it constitutes a great part of our trade—all this at least we should lose.” Another illusion! Must you govern a people in order to sell your goods to them? Is there that people upon earth who do not buy goods of you? You sell goods to Britain, don’t you? And do you govern Britain? When a colonist sends you sugar, does he give it you for nothing? Does not he make you give him value for it? Give value for it then, and you will have it still. When he is his own master, will the sugar he cannot use be less a burthen to him than it is now? Will he be less in want of whatever it is he now buys with sugar? What you now sell to him, suppose you were to sell it to him no longer, would you be the poorer? Is there nobody else that would buy it? Is it worth nothing? What is it to you to whom you sell your goods? When do you know beforehand whether it is John or Thomas that will buy, or that will consume your goods? And if you did, what would you be the better? Are you then really afraid of not finding any thing to produce that shall find purchasers? Is it that what you can find to sell is worth nothing, and what you want to buy worth everything? If such be your danger, what is your colonist’s? What you want of him is luxury: what he wants of you is existence. Suppose he gets the article, whatever it be, corn or any thing; suppose he gets it for the moment from some other shop instead of yours. Is there a grain the more corn in the world to sell in consequence of this change of his, or a single mouth the less that wants corn, and has money or money’s worth to give for it? By buying at that other shop, does not he empty that shop of so much corn, which some other customer, who would otherwise have got it at that shop, must now directly or indirectly get of you?

I will tell you a great and important, though too much neglected truth—Trade is the child of Capital: In proportion to the quantity of capital a country has at its disposal, will, in every country, be the quantity of its trade. While you have no more capital employed in trade than you have, all the power on earth cannot give you more trade: while you have the capital you have, all the power upon earth cannot prevent your having the trade you have. It may take one shape or another shape; it may give you more foreign goods to consume, or more home goods; it may give you more of one sort of goods, or more of another; but the quantity and value of the goods of all sorts it gives you will always be the same, without any difference which it is possible to ascertain, or worth while to think about. I am a merchant, I have a capital of £10,000 in trade. Suppose the whole Spanish West Indies laid open to me; could I carry on more trade with my £10,000 than I do now? Suppose the French West Indies shut against me; would my £10,000 be worth nothing? If every foreign market were shut up against me without exception, even then would my £10,000 be worth nothing? If there were no sugar to be bought, there is at any rate land to be improved. If a hundred pounds worth of sugar be more valuable than a hundred pounds worth of corn, butcher’s meat, wine, or oil, still corn, butcher’s meat, wine, and oil, are not absolutely without their value. If, article after article, you were driven out of every article of your foreign trade, the worst that could happen to you would be the being reduced to lay out so much more than otherwise you would have laid out in the improvement of your land. The supposition is imaginary and impossible, but if it were true, is there any thing in it so horrible?

Yes; it is quantity of capital, not extent of market, that determines the quantity of trade. Open a new market, you do not, unless by accident, increase the sum of trade. Shut up an old market, you do not, unless by accident, or for the moment, diminish the sum of trade. In what case, then, is the sum of trade increased by a new market? If the rate of clear profit upon the capital employed in the new trade is greater than it would have been in any old one, and not otherwise. But the existence of this extra profit is always taken for granted, never proved. It may indeed be true by accident: but another thing is taken for granted which is never true; it is, that the whole of the profit made upon the capital which, instead of being employed in some old trade, is employed in this new one, is so much addition to the sum of national profit that would otherwise have been made: what is only transferred is considered as created. If after making 12 per cent. upon a capital of £10,000 in an old trade, a man made but 10 per cent. upon the same capital in a new trade, who does not see, that instead of gaining £1200 a-year, he, and through him the nation he belongs to, loses £200 by the change: and so it is, if instead of one such merchant, there were a hundred. Instead of this £200 a-year loss, your comités de commerce and boards of trade set down to the national account £1000 a-year gain: especially if it be to a very distant and little known part of the world, such as a southern whale-fishery, a revolted Spanish colony, or a Nootka Sound: and it is well if they do not set down the whole capital of £10,000 as gain into the bargain.

“Oh, but we give ourselves a monopoly of their produce, and so we get it cheaper than we should otherwise, and so we make them pay us for governing them.” Not you, indeed; not a penny: the attempt is iniquitous, and the profit an illusion.

The attempt, I say, is iniquitous: it is an aristocratical abomination: it is a cluster of aristocratical abominations: it is iniquitous towards them; but much more as among yourselves.

Abomination the 1st. Liberty, property, and equality violated on the part of a large class of citizens (the colonists) by preventing them from carrying their goods to the markets which it is supposed would be most advantageous to them, and thence keeping from them so much as it is supposed they would otherwise acquire.

Abomination 2d. One part of a nation (the people of France) taxed to raise money to maintain by force the restraints so imposed upon another part of the nation (the colonists.)

Abomination 3d. The poor, who after all are unable to buy sugar—the poor in France, taxed in order to pay the rich for eating it. Necessaries abridged for the support of luxury. The burthen falls upon the rich and poor in common: the benefit is shared exclusively by the rich.

The injustice is not such in appearance only: as it would be, if what is thus taken or meant to be taken from the colonists went to make revenue: it would then be only a mode of taxation. In France (it might then be said) people are taxed one way, in the colonies another: the only question would then be about the eligibility of the mode. But revenue is here out of the case: nothing goes to the nation in common; everything goes to individuals: if it is a tax, it is a tax the produce of which is squandered away before collection; it is a tax the produce of which, instead of being gathered into the treasury, is given away to sugar-eaters.

But even as to sugar-eaters, the profit, I say, is an illusion. For does the monopoly you give yourselves against the growers of sugar so much as keep the price of sugar lower than it would be otherwise? Not a sixpence. Lower than the price at which the commodity is kept by the average rate of profit on trade in general, no monopoly can reduce the price of this commodity any more than of any other, for any length of time: you may keep your subjects from selling their sugars elsewhere, but you cannot force them to raise it for you at a loss. Lower than this natural price, no monopoly can ever keep it: down to this price, natural competition cannot fail to reduce it, sooner or later, without monopoly. Customers remaining as they were, without increase of the number of traders there can be no reduction of price. Monopoly, that is, exclusion of customers, has certainly no tendency to produce increase of the number of traders: it may pinch the profits of those whom it first falls upon, but that is not the way to invite others. Monopoly, accordingly, as far as it does anything, produces mischief without remedy. High prices, on the other hand—the mischief against which monopoly is employed as a remedy—high prices, produced by competition among customers, cannot in any degree produce inconvenience, without laying a proportionate foundation for the cure. From high profits in trade comes influx of traders, from influx of traders competition among traders, from competition among traders reduction of prices, till the rate of profit in the trade in question is brought down to the same level as in others.

Were it possible for monopoly to keep prices lower than they would be otherwise, would it be possible for anybody to tell how much lower, and how many sixpences a-year were saved to sugar-eaters by so many millions imposed upon the people? No, never: for since, where the monopoly subsists against the producers, there is nothing but the monopoly to prevent accession of, and competition among the producers, competition runs along with the monopoly, and to prove that any part of the effect is produced by the monopoly and not by the competition, is impossible.

“Oh, but we have not done with them yet. We give ourselves another monopoly: we give ourselves the monopoly of their custom, and so we make them buy things dearer of us than they would otherwise, besides buying things of us which otherwise they would buy of other people; and so we make them pay us for governing them.” Mere illusion! In the articles which you can make better and cheaper than foreigners can, which you can furnish them with upon better terms than foreigners can, not a penny do you get in consequence of the monopoly, more than you would without it. You prevent their buying their goods of any body but your own people: true; but what does this signify? You do not force them to buy of any one or more of your own people to the exclusion of the rest. Your own people, then, have still the faculty of underselling one another without stint, and they have the same inducement to exercise that faculty under the monopoly, as they would have without it. It is still the competition that sets the price. In this case as in the other, the monopoly is a chip in porridge. It is still the proportion of the profit of these branches of trade to the average rate of profit in trade that regulates this competition: it is still the quantity of the capital which there is to be employed in trade that regulates the average rate of profit in trade.

In the instance of such articles as you can not make better or cheaper than foreigners can, in the instance of articles which you can not furnish them with on better terms than foreigners can, it is still the same illusion, though perhaps not quite so transparent. Not a penny does the nation get (I mean the total number of individuals concerned in productive industry of all kinds) not a penny does the nation get by this preference of bad articles to good ones, more than it would otherwise. In France, any more than anywhere else, people do not get more by the goods they produce than if there were no such monopoly: for if the rate of profit in the articles thus favoured were higher one moment, competition would pull it down the next. All that results from the monopoly you thus give yourselves of the custom of your colonies is, that goods of all sorts are somewhat worse for the money all over the world than they would be otherwise. People in France are engaged to produce, for the consumption of the French colonies, goods in which they succeed not so well as England for example, instead of producing for their own consumption, or that of some other nation, goods in which they succeed better than England. People in England, on the other hand, being so far kept from producing the goods they could have succeeded best in, are in so far turned aside to the production of goods in which they do not succeed so well: and thus it is all the world over. The happiness of mankind is not much impaired, perhaps, by the difference between wearing goods of one pattern, and goods of another, but, though much is not lost perhaps to anybody by the arrangement, what is certain is, that nothing is gained by it to anybody, and particularly to France.

Will you believe experience? Turn to the United States. Before the separation, Britain had the monopoly of their trade: upon the separation, of course she lost it. How much less is their trade with Britain now than then? On the contrary, it is much greater.

All this while, is not the monopoly against the colonists clogged with a counter-monopoly? To make amends to the colonists for their being excluded from other markets, are not the people in France forbidden to take colony produce from other colonies, though they could get it ever so much cheaper? If so, would not the benefit to France, if there were any, from the supposed gainful monopoly, be outweighed by the burthen of that which is acknowledged to be burthensome? Yes—the benefit is imaginary, and it is clogged with a burthen which is real.

Monopoly, therefore, and counter-monopoly taken together, sugar must come the dearer to sugar-eaters, instead of cheapered to a certain degree for a constancy, and much more occasionally, when the dearness occasioned by a failure of crops in the French colonies, is by the counter-monopoly against France prevented from being relieved by imports from other colonies, where crops have been more favourable.

If monopoly favoured cheapness, which it does not, it would favour it to the neglect of another object, steadiness of price, which is of more importance. It is not a man’s not having sugar to eat that distresses him: Croesus, Apicius, Heliogabalus, had no sugar to eating what distresses a man is his not being able to get what he has been used to, or not so much of it as he has been used to. The monopoly against the French colonies, were it to contribute ever so much to the cheapness of the price, could contribute nothing to the steadiness of it: on the contrary, in consequence of the counter-monopoly it is clogged with, its tendency is to perpetuate the opposite inconvenience, variation. Any monopoly which France gives herself against her colonies will not prevent any of those accidents in consequence of which sugar is produced in less abundance in those colonies than at others: and when it is scarce there, the monopoly against France will prevent France from getting from other places where it is to be had cheaper.

How much dearer is sugar in countries which have no colonies than in those which have? Let those inquire who think it worth the while. They will then see the utmost which in any supposition it would be possible for the body of sugar-eaters in France to lose. Not that this loss could amount to anything like the above difference: for, in as far as those countries get their sugar from monopolized colonies, which must be through the medium of some monopolizing country, they get it loaded with the occasional dearth produced thus by the effects of the counter-monopoly above mentioned, and loaded more or less with constant import taxes, besides the expense of circuitous freight and multiplied merchant’s profit.

May not monopoly, then, force down prices? Most certainly. Will it not, then, keep them down? By no means. If I have goods I can make no use of, and there is but one man in the world that I can sell them to, sooner than not sell them, though they cost me a hundred pounds to make, I will sell them for sixpence. Thus monopoly will beat down prices. But shall I go on making them and selling them at that rate? Not if I am in my senses. Thus monopoly will not keep down prices. Hence then comes all the error in favour of monopolies—from not attending to the difference between forcing down prices and keeping them down.

When an article is dear, it is by no means a matter of indifference whether it is made so by freedom or by force. Dearth which is natural, is a misfortune: dearth which is created, is a grievance. Suffering takes quite a different colour, when the sense of oppression is mixed with it. Even if the effect of a monopoly is nothing, its inefficiency as a remedy does not take away its malignity as a grievance.

What then do you get by the monopolizing system, take it altogether? You get the credit of this grievance; you get occasional dearth; you get the loss you are at by the armaments you keep up against smuggling; you get the expense of prosecution, and the waste and misery attendant upon fine and confiscation.

“Oh, but the duties upon the colony trade produce revenue to us.” I dare say they do: and what then? Must you govern a country in order to tax your trade with it? Is there that country that does not produce revenue to you? You tax your trade with Britain, don’t you? and do you govern Britain? You tax British goods as high as smuggling will permit: could you tax them higher if they came from the colonies?—would you if you could?—would you tax your own subjects higher than you would strangers?

I will show you how you may get revenue out of them: I will show you the way, and the only way in which, if you choose iniquity, you may make it profitable. Tax none of their produce, tax none of your imports from them; of all such taxes, every penny is paid by yourselves. Tax your exports to them: tax all your exports to them: tax them as high as smuggling will admit: of all such taxes, every penny is paid by them.

I will show you how much more you could get in this way from them than from foreigners. You could not, it must be confessed, get, unless by accident, more per cent. on what they took from you, than on what foreigners took from you: for smuggling, which limits the rate per cent. you could thus levy upon foreigners, limits in like manner the rate per cent. you could levy upon your vassals. Remote countries like the colonies might indeed afford less facility for smuggling out of France than contiguous countries, and so, the expense of smuggling being the greater, the tax would admit of being set higher without having the productiveness of it destroyed by smuggling: but whatever latitude is thus given, is given, you see, not by alienship but by distance.

You could not, I say, get more per cent. in this way from your vassals, as such, than if they were foreigners; but what you could get from them, is that same rate of profit, with greater certainty as to the extent of it. Foreigners might quit your market at any time, and would quit it, if, after the tax thus levied upon them, they could not get the goods they want, upon as good terms from you as elsewhere. Your own vassals could not quit your market, except in as far as smuggling would enable them; for by the supposition they have no other. Upon foreigners the tax is an experiment, and what you risk by the experiment is, the temporary distress to individuals proportioned to the decrease, whatever it be, of that branch of trade: for as to the absolute sum of trade, or, to speak more distinctly, of national wealth, it suffers nothing, as you have seen, beyond the amount of the relative and momentary decrease: so that the whole produce of this tax is so much clear gain to the revenue, for which nothing is paid, or so much as risked, beyond the above-mentioned momentary and contingent distress to individual traders. Upon your own vassals there is nothing for experiment to ascertain: you have them in a jail, and you set what price you please on their existence, only you must keep the door well locked, and if the jail be a large one, this may be no such easy matter. In Guadalupe, Martinico, and St. Domingo, what could the expense amount to—the prisoners all refractory, and making holes and beating down doors and walls, at every opportunity, with people on the outside to help them? Let those calculate who may think it worth their while.

In all this there are no figures—why? because nothing turns upon figures. Figures might show what the incomes of your colonists amount to; and what the incomes of your colonists amount to is nothing to you, for they are their incomes, and not yours. Figures might show the amount of your imports from your colonies; and it makes nothing to the question; for they do not sell it you without being paid for it, and they would not be the less glad to be paid for it for being free. Figures might show the produce of your taxes on those imports; and it makes nothing to the question, for you might get it equally whether the producers of those articles were dependent or independent, and it is your own people at home that pay it. Figures might show, what you sold in the way of exports to your colonists in this and that shape: and it makes nothing to the question; for consumption, not sale, is the final use of production, and if you did not sell it in that shape, you would sell it or consume it in another. Figures might show you the amount of the taxes you levy on those exports: and nothing turns upon that amount; for if the price of the article will bear the amount of the tax without the help of such a monopoly as subjection only can insure, you may get it from them when independent as well as from other foreigners, and if it will not, neither will they bear to see it raised so high, nor will you bear to raise it so high, as to pay the expense of a marine capable of blocking up all their ports, and defending so many vast and distant countries against the rival powers, with the inhabitants on their side.

“Oh, but they are a great part of our power.” Say rather, the whole of your weakness. In your own natural body, you are impregnable; in those unnatural excrescences, you are vulnerable. Are you attacked at home? not a man can you ever get from them; not a sixpence. Are they attacked? they draw upon you for fleets and armies.

If you were resolved to keep them, could you? It may be worth your consideration. Is it not matter of some doubt, even now when you have them to defend only against themselves: can there be a moment’s doubt, when the power of Britain is thrown into the scale? Five men of war, I think, or some such matter, you have ordered out to defend them against one another. Ask your minister of the marine, can he spare fifty more to defend them against their protectors? Fifteen thousand are bound for Martinico to fight aristocrats: ask your war-minister whether Custine can spare 30,000 more of his best men to fight Britons.

Do not feed yourselves with illusions. You cannot be everywhere: you cannot do every thing. Your resources, great as they are, have still their limits. The land is yours. But do you think it possible for you to keep it so, and the sea likewise?—the land against every body, and at the same time the sea against Britain? Look back a little. Could Spain, Holland, and America together, save you from the 10th of April? How will it be now? America is neutral. Spain and Holland are against you. Send as many ships as you can, England alone can send double the number, and if that be not sufficient, treble.

“Oh, but times are changed” I dare believe it. What superior bravery can do will be done. But how little does that amount to on such an element? Can bravery keep a ship from sinking? With skill anything like equal, can any possible difference in point of bravery make up for the difference between two and one?

Consider a little: a ship is not a town, that you can bombard it with orators, and decrees for the encouragement of desertion, and declarations of the rights of men; a ship is not a town, out of which the lukewarm can slip away, or into which a few friends can give you admittance. You are brave, but neither are English scamen remarkably deficient in point of bravery. If you have your lights, they have their prejudices, they may find it not so easy as you may think to comprehend the doctrine of forced liberty they may prefer a made constitution which gives tranquillity, to an unmade one under which security is yet to come: they may question the right of the thousands who address you, to answer for the millions who are bid to abhor you: they may prefer the George whom they know, to a Frost whom they never heard of.

Hear a paradox—it is a true one. Give up your colonies, they are yours: keep them, they are ours. This is what I most tremble at: excuse me—I am an Englishman—it touches me the most nearly.

“Oh, but the people of Bourdeaux.”—Well—what of the people of Bourdeaux? Are the passions of one town to set at nought the interest of the whole nation? Are justice, prosperity, possibility, to be fought with for their sake? Think more honourably of their patriotism. Address them, enlighten them, persuade them: and if you find a difficulty in bridling that speak on your own continent, think whether you will find it easier to master so many vast and distant islands, with Britain on their side.

To yield to justice is what must happen to the mightiest and proudest nations. Disgrace or honour follows, according to the mode. Britain yielded to America: Britain yielded to Ireland. On which occasion was her dignity best preserved?

Sitting where you do, call it not courage to drive on in the track of war and violence.

There is nothing in such courage that is not compatible with the basest cowardice. The passions you gratify are your own passions: but the blood you shed is the blood of your fellow-citizens.

Who can say what it costs you at present to guard colonies? Who can say what you might save by parting with them?—I should be afraid to say it—almost the whole of your marine? What do you keep a marine for but to guard colonies? Whom have you to fear but the English? and why, but for your colonies? To defend your trade, say you? Do us justice, we are not pirates. We should not meddle with your merchantmen, if you had not a single frigate: we should not invade your coasts, if you had not a single fort. We have ambition and injustice enough, but it does not show itself in that shape. Do we hurt the trade of Denmark, Sweden, Naples, any of the inferior powers? Never: except they carry your trade for you, when you are at war with us for colonies—What do I say? If we ourselves have a marine, it is not for trade, it is for colonies: it is because some of us long to take your colonies, all of us fear your taking ours.

Is consistency worth preserving? Is your boasted conquest-abjuring decree—that decree which might indeed be boasted of if it were kept—is that most beneficial of all laws to be anything better than waste paper? The letter, I fear, has been long broken: the spirit of it may be yet restored, and restored with added lustre. Set free your colonies, then everything is as it should be. “We incorporated Savoy and Avignon,” you may say, “because it was their wish to join us: we part with our distant brethren, because like us they choose to be governed by themselves. Mutual convenience sanctioned our compliance with the wishes of our foreign neighbours: mutual inconvenience, the result of unnatural conjunction—mutual inconvenience, as soon as it was understood, made us follow, and even anticipate the wishes of our distant fellow-citizens. Reduction of the expenses of defence was the inducement to our union with those whom we either bordered on or inclosed: the same advantage, but in a much superior degree, rewards us for the respect we show to the wishes and interests of the inhabitants of another hemisphere. To neutral powers we give much cause for satisfaction, none for jealousy. Our acquisitions are two small provinces: our sacrifices are, besides continental settlements in every quarter of the globe, a multitude of islands, the least of them capable of holding both our acquisitions.” Were such your language, everything would be explained, everything set to rights. While you take what suits you, keeping what does not suit you, you aspire openly to universal domination: with fraternity in your lips, you declare war against mankind. Shake off your splendid incumbrances, the sins of your youth are atoned for, and your character for truth, probity, moderation, and philanthropy built on everlasting ground.

In the event of a rupture with Spain, you have designs, I think, in favour of her colonies. With what view? To keep them? Say so boldly, and acknowledge yourselves worthy successors of Louis XIV. To give them independence? Why not give it then where it is already in your power to give it? Will you put your constituents to an immense expense for the chance of giving liberty, and refuse it when you can give it for a certainty and for nothing. Compare the pictures—liberty without bloodshed on the one hand; bloodshed, with only a chance for liberty, on the other. Which is the best present? Which of the two is most congenial to your taste? Is it the bloody one? Go then to those colonists—go with liberty on your lips, and with fetters in your hands—go and hear them make this answer: “Frenchmen, we believe you intend liberty for us strangers, when we have seen you give it to your own brethren!”

You who hold us so cheap, who look down with such contemptuous pity on our corruption, on our prejudices, on our imperfect liberty—how long will you take our example to govern you, and of all parts of it those which are least defensible? Is it a secret to you any more than to ourselves, that they cost us much, that they yield us nothing—that our government makes us pay them for suffering it to govern them—and that all the use or purpose of this compact is to make places, and wars that breed more places?

You who look down with so much disdain on our corruption, on our prejudices, on our imperfect liberty, how long will you submit to copy a system, in which corruption and prejudice are in league to destroy liberty?—a compact between government and its colonies, of which the mother country is the sacrifice and the dupe?

You have seen hitherto only what is essential—collateral advantages crowd in in numbers. Saving of the time of public men, simplification of government, preservation of internal harmony, propagation of liberty and good government over the earth.

You are chosen by the people: you mean to be so; you are chosen by the most numerous part, who must be the least learned, of the people. This quality, with all its advantages and disadvantages, you the children of the people, must expect more or less to partake of. Inform yourselves as you can, labour as you will, reduce your business as much as you will, you need not fear the finding it too light for you. What a mountain of arguments and calculations must you have to struggle under, if you persevere in the system of colony-holding, with its monopolies and counter-monopolies! What a cover for tyranny and peculation! Give your commissaries insufficient power, they are laughed at: give them sufficient, your servants become dangerous to their masters. All this plague you get rid of, by the simple expedient of letting go those whom you have no right to meddle with. Cleared of all this rubbish of mischievous and false science, your laws will be free to put on their best ornament: then, and not till then, you may see them simple as they ought to be—simple as those who sent you, simple as yourselves. Yes, citizens, your time, all the time you either have or can make, is the property of those who know you and whom you know: you have none to bestow upon those distant strangers.

Great differences of opinion, and those attended with no little warmth, between the tolerators and proscribers of negro slavery:—emancipation throws all these heartburnings and difficulties out of doors; it is a middle term in which all parties may agree. Keep the sugar islands, it is impossible for you to do right:—let go the negroes, you have no sugar, and the reason for keeping these colonies is at an end; keep the negroes, you trample upon the declaration of rights, and act in the teeth of principle. Scruples must have a term: how sugar is raised is what you need not trouble yourselves about, so long as you do not direct the raising it. Reform the world by example, you act generously and wisely: reform the world by force, you might as well reform the moon, and the design is fit only for lunatics.

The good you do will not be confined to yourselves. It will extend to us: I do not mean to our ministry, who affront you, but to the nation, which you most wish to find your friend. No, there is no end to the good you may do to the world: there is no end to the power that you may exercise over it. By emancipating your own colonies, you may emancipate ours: by setting the example, you may open our eyes and force us to follow it. By reducing your own marine you may reduce our marine: by reducing our marine, you may reduce our taxes: by reducing our taxes, you may reduce our places: by reducing our places, you may reduce our corruptive influence.

By emancipating our colonies, you may thus purify our parliament: you may purify our constitution—you must not destroy it. Excuse us, we are a slow people, and a little obstinate: we are used to it, and it answers our purpose. You shall not destroy it: but if purifying it in that slow way will satisfy you, we can’t help your purifying it.

A word is enough for your East India possessions. Affections apart, which are as yet unknown, whatever applies to the West Indies, applies to the East with double force. The islands present no difficulty: the population there is French: they are ripe for self-government. There remains the continent: you know how things are changed there:—the power of Tippoo is no more. Would the tree of liberty grow there, if planted? Would the declaration of rights translate into Shanscrit? Would Bramin, Chetree, Bice, Sooder, and Hallachore meet on equal ground? If not, you may find some difficulty in giving them to themselves. You may find yourselves reduced by mere necessity to what we should call here a practical plan. If it is determined they must have masters, you will then look out for the least bad ones that could take them: and after all that we have heard, I question whether you would find any less bad than our English company. If these merchants would give you anything for the bargain, it would be so much clear gain to you: and not impossible but they might. You know better than to think of obtaining for the quiet possession of these provinces anything like what would be spent at the first word for the chance of taking them by force: the pleasure of rapine, bloodshed, and devastation is not to be set at so low a price: but something surely they would give you. Though to you the country is a burthen, it does not follow that to them it might not be a benefit. Though even the whole of their vast possessions were a burthen to them, the burthen, instead of being increased, might be diminished by the addition: the expense of defence might be reduced: Pondicherry might be to them what Savoy is to you.

But enough of suppositions and conjectures. How you part with the poor people who are now your slaves, is after all a subordinate consideration: the essential thing is to get rid of them: You ought to do so if nobody would take them without being paid for it. Whatever be their rights, they have no such right as that of forcing you to govern them to your own prejudice.

“Oh, but you are a hireling: You are a tool of your king, and of his East India company: they have employed you to tell us a fine story, and persuade us to strip ourselves of our colonies, not being able to rob us of them themselves.”—O yes, I am all that: I have not bread to eat, and no sooner is your decree come out, than I get £50,000 from the company, and a peerage from the king—I am a hireling:—but will you then betray the interest of your constituents, because a man has been hired to show it you? It would be of use to England:—but are there no such things as common interests, and are you never to serve yourselves but upon condition of not serving others at the sametime? Is your love for your brethren so much weaker than your hatred of your neighbours? It would be of use to England:—but are England and king of England terms so perfectly synonymous, and do you of all men think so? The king’s interest would be served by it:—but by knowing a man’s interest, his true and lasting interest, are you always certain of his wishes? Is consummate wisdom among the attributes of his ministers? Have they no passions to blind, have they no prejudices to mislead them? Are you so unable to comprehend your own interest, that it is only from the opinion of others that you can learn it, and those your enemies? The king of England is your enemy:—but because he is so, will you put yourselves under his command? Shall it be in the power of an enemy to make you do as he pleases, only by employing somebody to propose the contrary? See what a man exposes himself to by listening to such impertinences! I am hired: but are not advocates hired, as often as a question comes before a court of justice? and is justice on either side, because men are paid on both sides? Legislators, suffer me to give you a warning—this is not the only occasion on which it may have its use. Those, if any such there he, who call attention off from the arguments that are offered to the motives of him who offers them, show how humble their conception is, either of the goodness of their cause, of the strength of their own powers, or of the solidity of your judgment, not to say of all three. If they practise upon you by suggestions so wide from reason, it is because they either fear or hope to find you incapable of being governed by it.

A word of recapitulation, and I have done. You will, I say, give up your colonies—because you have no right to govern them, because they had rather not be governed by you, because it is against their interest to be governed by you, because you get nothing by governing them, because you cannot keep them, because the expense of trying to keep them would be ruinous, because your constitution would suffer by your keeping them, because your principles forbid your keeping them, and because you would do good to all the world by parting with them. In all this is there a syllable not true? But though three-fourths of it were false, the conclusion would be still the same. Rise, then, superior to prejudice and passion: the object is worth the labour. Suffer not even your virtues to prejudice you against each other: keep honour within its bounds; nor spurn the decrees of justice because confirmed by prudence.

To conclude. If hatred is your ruling passion, and the gratification of it your first object, you will still grasp your colonies. If the happiness of mankind is your object, and the declaration of rights your guide, you will set them free.—The sooner the better: it costs you but a word: and by that word you cover yourselves with the purest glory.

Postscript, 24^thJune 1829.

An argument, that had not as yet presented itself to the view of the author when penning the accompanying tract, is furnished by the consideration of the quantity of the matter of good, operating to the effect of corruption, in the shape of patronage.

As a citizen of Great Britain and Ireland, he is thereby confirmed in the same opinions, and accordingly in the same wishes. But, as a citizen of the British Empire, including the sixty millions already under its government in British India, and the forty millions likely to be under its government in the vicinity of British India, not to speak of the one hundred and fifty millions, as some say, or three hundred millions, as the Russians say, of the contiguous Empire of China,—his opinions and consequent wishes are the reverse. So likewise, regard being had to the colonization of Australia; especially if the account given of the intended settlement on the Swan River in the Quarterly Review for April 1829, and from it in the Morning Chronicle of 26th April 1829, be correct—In regard to Australia, it is in his eyes preponderantly probable that, long before this century is at an end, the settlements in that vast and distant country will, all of them, have emancipated themselves, changing the government from a dependency on the English monarchy, into a representative democracy.

Dilemma, applying to a distant dependency, this. Admit no appeal (judicial appeal,) you thereby, unless your government is purely military, establish independence: admit appeal, you thereby subject the vast many of those who can not afford the expense of the appeal, to slavery under the relatively few who can.

In most of the copies which, from time to time, were distributed in the way of gift, inserted in MS. at the bottom of the first page, in the form of a note to the title, was the memorandum following:—

“Anno 1793, written just before the departure of M. Talleyrand, on the occasion of the rupture between France and England. Copy given to Talleyrand’s secretary, Gallois, who talked of translating it.”

JEREMY BENTHAM TO HIS FELLOW-CITIZENS OF FRANCE, ON HOUSES OF PEERS AND SENATES.

Jeremy Bentham to General Lafayette.

My ever dear Lafayette!—

Your commands are laws: subject-matter this question—“In France, shall we, or shall we not, have a Chamber of Peers?” On this question you desire my thoughts: here they are at your service. For these thoughts, you are not responsible: nor for any part of them. What yours are, I have never known: nor, antecedently to your receipt of this paper, would I know them if I could help it. My wish has all along been—that mine on this subject should be free from all bias; and that they should stand or fall by their own strength. Proud and gratified of course shall I be, in proportion as my notions of what is best are found to coincide with yours.

With yours?—Yes: and, I will add, with those of our beloved King.

As to any points, on which, in either instance, I fail to experience this good fortune, set any of the honest and talented men whose qualifications have come within your observation—set them to apply correction to any such errors as it may have happened to me to fall into. In this way, at any rate, I may have the satisfaction of being of use to our dear country: and it matters not in what proportion it may be in the one way, and in what proportion in the other. Whosoever, if any one, writes accordingly,—desire him to write altogether at his ease, speaking of my thoughts, in the terms, whatsoever they are, in which his own as to mine happen to present themselves.

Queen’s Square Place,Westminster, London,
15th October 1830.

§ I.

Introduction.

Fellow-Citizens,

1. “Your predecessors made me a French citizen: hear me speak like one.” So said I for the first time anno 1792. Hear me now speak thus for this second time.

2. Two great questions are now on the carpet—

i. A House of Peers is in existence;—shall it be discarded? I say—Yes.

ii. A Senate is proposed to be instituted;—shall it be instituted? I say—No.

3. If deception be not a man’s object, he cannot make known too early the end he is endeavouring to lead his readers to. With me this is a general rule: on the present occasion, such (you see) is my practice.

4. On matters of government more particularly, no proposition do I, on any occasion, make without reasons—at least, what to me appear such—for its support. On every occasion, these reasons have the greatest-happiness principle for their ground and source.

For any accession that I ever look for to any such proposition, on those reasons is, on every occasion, my sole reliance. As to any influence with which any opinion, declared by me to be mine, might be supposed to act on other minds,—merely because it is declared by me to be mine, or merely because it is thought to be mine,—it is in my own account set down as exactly equal to 0: lower than this it cannot be set by anybody.

5. I have by me a receipt for exhausting any subject a man takes in hand.* A good receipt is one thing: following it well is another. I have done my best towards both things. You will judge.

6. In the concisest manner possible—in the fewest words possible—I hereby submit to your view the reasons by which, in relation to these subjects, these my opinions have been determined.

7. No rhetoric here; no appeal to passion; no recourse to imagination; no exercise given to the art of deception in any of its branches.

8. “Strike, but hear,” said the Athenian general to his Spartan ally, on the occasion of a difference of opinion. “Be angry and sin not,” says a Christian apostle. Be as angry as you please; and in so doing, sin as much as you please, say I to all such of you, my dear and admired fellow-citizens, whom I have not the good fortune to be about to see agreeing with me. Give vent to your anger; I defy you to produce any in me. Give vent to your anger; but give the public and me the benefit of your reasons.

9. On this same side, others there will probably be, who will present themselves to you with arrows taken from that armoury—with ornaments taken from that wardrobe. To these papers, should such be their pleasure, they may refer you, for better security and further reliance.

§ II.

Topics on the carpet as to a Second Chamber.

1. A Chamber of Peers, a Senate, or neither the one nor the other, but a Chamber of Deputies without either: so far as my information and observation are correct, this is the description commonly given of three states of things, between which and which alone the option is on this occasion considered as being to be made.

2. But in my view of the matter, this description wants more or less of being sufficiently particular. Subject-matters, which, on this occasion, require to be taken into consideration, or will of themselves come into consideration, are these which follow:—

i.Powers requisite to be given to the body in question.

ii.Persons by whom the members of the body in question shall, in the several cases, be located.

iii. Conditions of eligibility, requisite on the part of the persons located: conditions of eligibility, as you say in French; qualifications, as we say in English: the French, clearer and more expressive; the English, more concise.

3. Neither the one nor the other, say I, as above: quite sufficient the chamber of deputies, located by the people; that is to say, by a part more or less considerable of the whole number of the members of the great community in question: but, as to what part, that belongs not to the present question. Quite sufficient the one ruling, or with a king, co-ruling, body: needless, useless, worse than useless—that is to say, purely maleficent,—such, if I mistake not, will be seen to be every body that can be attached to a chamber of deputies, in such sort as to be capable of applying a veto, or so much as a cause of retardation—a bar, or a drag—to any of its proceedings: such, whatsoever be the powers attributed to it, whatsoever the persons by whom the situation composed of those powers is conferred.

4.—i. The powers proposable it seems necessary that I should present to your view.—ii. The description of the locators proposable it seems likewise necessary that I should present to your view.—iii. As to qualifications, on the present occasion to say anything on this topic would not be consistent with the opinion just expressed, with the accompanying reasons for its support.

5. Powers that present themselves to me as proposable, are the following:—

i. A share in the legislative authority in the supreme grade. For, this has place everywhere: in every instance in which legislative power in the supreme grade is exercised by a representative body—whether acting alone, or in conjunction with a monarch,—it constitutes the basis of every power given to any other body added to it.

ii. A portion of judicial authority. For in France, to the portion of supreme legislative authority in question this appendage stands attached at present. And, this is attached to the portion of legislative authority in England, in the case of the second chamber called the House of Lords: and, in the Anglo-American Union, in the case of most of its compound States separately taken, as well as in that of the aggregate body composed of deputies sent from all of them, styled the Congress: Senate is the denomination given to it in this latter case.*

iii. A portion of administrative authority in the supreme grade. For, this is attached to the portion of legislative authority in the Anglo-American States, in the case of that same senate.

6. Sole locators that seem proposable, and between whom the option will have to be made, these two:—

i. The monarch, of course:—he being the sort of functionary by whom this power is possessed and exercised at present—in France, in England, in a word, in every monarchy, in and under which there is a second chamber, with its population, in addition to that which is composed of the deputies of the people.

ii. A body, on the members of which this power is conferred. Example—original and most illustrious—in the case of the senate in the above-mentioned congress, the aggregate composed of the “legislatures” of the several states.

7. So much depending on the situation of the locating functionary or functionaries, this topic could not, on the present occasion, be passed by.

§ III.

Objections to any, even the best appointed, Second Chamber.

1. Now for the reasons, by which my rejection of a second chamber has been determined.

i. The case to which I apply them, in the first instance, is—that which is most favourable to a second chamber:—that is to say, the supposition—that the choice made—as well in respect of the powers conferred, as of the sort of person or persons by whom they are conferred—is that which stands least exposed to objection.

ii. And, for argument sake, let the power conferred be—a share in the legislative authority alone, unaccompanied with a share in either of the two other authorities.

iii. And, let the locators be—either those who are so in the case of the senate of the Anglo-American congress as above; or those who are so in the case of the first chamber of that same congress—the chamber, the members of which are styled the representatives of the people.

2. If I do not deceive myself, it will be seen—that, whatsoever be the strength of the objection in the case which I begin with, as being the most favourable case, it is not less in any other proposable case; and that, moreover, as between simplicity and complexity of powers, whatsoever be the strength of the objection, in the most simple case, it will be seen to become greater and greater, as the case becomes more and more complicated.

3.—i.Objection the first.—On the advocates of this appendage lies what is called the onus probandi—the burthen of proof. On them, if there be any net benefit produced by it,—on them lies the obligation of bringing it to view. Of no such benefit has exhibition been ever made: of benefit in some shape or other, assumed has the existence been by everybody; proved by nobody.

4. Antecedently to all developement in detail, one plain reason against it presents itself to a first glance. Of a chamber of deputies, in the character of a first chamber—that is to say, first in the order of importance—of a legislative body—principally, where not exclusively acting as such—the utility, nay, the indispensable necessity, is recognised on all sides: the existence of this necessity therefore may be—it must be—taken for a postulate. But, that from the force and efficiency of this body, the existence of any other body—before which must be carried, ere the force of law be given to it, every proposed law—should not make deduction more or less considerable, is not possible: the time during which the measure continues in the second chamber before it is otherwise disposed of, is so much delay; and, even supposing adoption and consummation to be the ultimate result, in so much that an ultimate negative is not applied to it,—still delay, so long as it lasts, is a temporary negative: and, if the measure has any net benefit for its result, the value of the loss by the delay is in the exact proportion of the length of it.

As to any counter-presumptions, these will be considered presently.

5.—ii.Objection the second.—Needlessness. Yes: needless—utterly needless—may be seen to be this institution. No benefit in any determinate shape having ever been held up to view as resulting from it,—if then, to satisfy the reader of the needlessness of it,—and thence, as below, of the perniciousness of it,—anything further can be done,—it must be by looking out for such supposable benefit as the nature of the case may be capable of suggesting.

6. Supposable need the first. Need of the degree of consideration, which, without this additional body, a measure cannot receive. Supposable reason in support of the institution: as the length of the time during which the measure continues in the second chamber, is the quantity of additional consideration which it is capable of receiving. Answer—No need of a second chamber follows. For, to the first belongs the power of giving to the measure whatsoever length of consideration is, in the opinion of that same first chamber, best adapted to it: and the correspondent quantity of deliberation and time being bestowed upon it, any further quantity must, according to that same opinion, be useless, and thence, as will be seen, pernicious.

7. Supposable need the second. On the part of the members of the legislature, need of a degree of appropriate aptitude not otherwise likely to have place. But, will it be said that to the second chamber belongs more appropriate aptitude—namely, in all its branches taken together—than to the first? Consistently with the above postulate, this cannot be said: if to this same second chamber more such appropriate aptitude belongs than to the first, not second ought it to be, but first, or rather—what upon the face of the argument appears already to be the only reasonable state of things—the only chamber.

8.—iii.Objection the third.—Unavoidable perniciousness: namely, in respect of delay: and, in the first place, what may be styled the involuntary delay. The first chamber giving to the measure whatsoever delay is attended with net benefit, or say profit, whatsoever delay is given to it by the second chamber is so much net detriment—so much net loss in the account of profit and loss. And, as has been seen above, a quantity more or less considerable of this detriment it is not in the power of the second chamber to forbear producing: to the minimum of this quantity, addition it is capable of making to an amount altogether unlimited; from it, it is not capable of making subtraction to any so much as the smallest amount.

A quantity of time, more or less considerable, is thus consumed and wasted in the second chamber, on the occasion of each measure:—at any rate, the time employed in one proceeding,—and, if there be proceedings more than one, then, in addition to the sum of those same proceedings, the sum of the several intervals between one proceeding and another.

9.—iv.Objection the fourth.—Perniciousness in respect of voluntary delay:—in respect of whatsoever delay is capable of being voluntarily, or say purposely produced, in addition to that which, as above, has place involuntarily, as in the case of the motions of the heart and arteries—motions produced without any exercise given to the faculty of the will. To the amount of this delay, thence to the amount of evil producible by it, limit assignable there is none.

10.—v.Objection the fifth.—Frustration, or say utter exclusion, put upon the benefit of the several in themselves practicable beneficial measures, separately considered. Instances in which this evil will have place are all those in which, but for the delay, involuntary and voluntary together, that has place, a measure to an amount more or less beneficial would have been adopted and carried into effect: but which, being known to be incapable of producing such its effect, if not adopted till after the expiration of the time in question,—is, by that consideration, prevented from being brought forward.

11. Note here—that the appellatives good and evil being, as above, mutually intertranslateable, not only may positive good be, by this means, prevented from coming into existence, but positive evil, to any amount, made to come into existence.*

12.—vi.Objection the sixth.—Perniciousness by all-comprehensive delay—by delay and prevention of all beneficial measures in the lump, by means of the aggregate amount of the delays, involuntary and voluntary, thus produced by the existence of a second chamber, as above.

13. The present is a time at which—the present is an occasion on which—this evil presents, with particular force, a claim to notice. The work which at present, my fellow-citizens, you have in hand is a work of regeneration. What you have to make is, in a word, an all-comprehensive code. With such a work as yet to create, think how much greater the evil of delay cannot but be, when compared with what it would be if that same code were already in existence. Not that everything in the existing code will require to be changed: only that, with a view to any eventual demand for change, everything requires to be looked at.

14. In the first chamber—in the chamber of deputies—the protraction to which the immense future contingent mass will unavoidably be subjected, will receive no small accession from the recent arrangement, by which the mouth of every member of this same chamber has been opened, to the purpose of his giving origination to proposed laws. The miracle which the Lord wrought upon the stud of Balaam (I mean them no disrespect) your new king has wrought upon your deputies.

15. The tribune—that ridicule-provoking machine, by which a palsy has been struck upon the tongues of the most eloquent people upon earth—will ere long be consigned to the lumber-room: and, from the removal of this cause of impediment to speech, the indefinite mass of inevitable decay in action will receive ulterior increase.

16. As time progresses, so will the quantity of appropriate instruction—the quantity of thought, right and wrong together, bestowed upon the field of law, and of expression, in that place as in other places, given to that thought—the number of speaking members, and the fluency of each—in a word, the quantity of time occupied by each.

17. Turn to the Anglo-American States. Ask, of such of their politically-instructed and intelligent citizens as shall come within your reach—ask, if from this cause the length of discussion is not receiving continual increase?

18. No secret to the enemies of your felicity—no secret will be the effect of the all-comprehensive delay necessitated by a second chamber. On this account, as well as on so many others which remain to be here presented to your view, the incumbrance will have them for partisans and advocates—advocates strenuous in proportion to the retardative weight of it.

19. Under our “matchless constitution” (so the phantom has christened itself,) this power of defeating all salutary measures in the lump,—and this by means raised above the sphere of observation—is an engine of matchless efficiency—an engine, of the capability of which no part is ever lost—an engine which at all times is made the most of.

20. Accordingly, as, to the ruling few, abuse in every shape is profit—having been created and preserved by them for that purpose,—that which, in regard to removal of every part of that same abuse—in other words, in regard to reform in every shape,—they insist upon is—that it shall be gradual. A man of this stamp is as fond of reform as you or any body, only it must be gradual. A proviso so reasonable—how can you refuse to join with him in it? Ought it not—this and every reform—ought it not to be temperate? Well then—to be temperate, it must be gradual,—to be well done, it must be gradually done. Fellow-citizens! as often as you meet with a man holding to you this language, say to him—“Sir, we have our dictionary: what you are saying we perfectly understand: done gradually means left undone—left undone for ever, if possible; if not, every part of it for as long a time as possible.”

21. Such is the desire, such the endeavour, such the language, such the policy, such the morality—of the aristocratical party, self-styled and distinguished among us by the appellation of the Whigs. The Tories cling to abuse, and abhor reform, and declare as much: the Whigs cling to abuse, and abhor reform, and profess to love it. You have now seen the cloven foot by which an anti-reformist, in the mask of a reformist, is self-betrayed.

22. The Tories, whom they behold intrenched in Harpy Castle (Blackstone’s venerable old castle,) they besiege, for the hope of substituting in it themselves to their at present more fortunate rivals. While carrying on such their operations—perplexing is their position, ridiculous enough their distress. No otherwise can they ever act, but with ammunition borrowed—say rather stolen—from the radicals, the friends of the people: nor without doing more or less damage to the object of their concupiscence—this same stronghold and treasury, which the friends of the people are all the while attacking for the purpose of blowing it up.

23. Fellow-citizens, we have our Whigs—you, of course, yours.

24. As to the amount of the evil in this case, to form any tolerable conception of it may, to a first glance, appear absolutely impracticable. Further consideration may present a prospect somewhat less disheartening. Let any person make out for himself, in his own mind, a list of all the evils which, in his view, the community is suffering, for want of such remedies as it may be in the power of legislation to supply. These evils he may, on no unreasonable ground, consider as the fruits of any system—of any set of arrangements—by which delay to any amount is established, independently of any demand produced for it by the individual case in question: and for these evils he may consider the public as beholden to whatsoever persons have contributed either to the institution of the system in question, or to the support of it; especially after the evils resulting from it have, as here, been spread open before the public eye.

25. That, but for this system of delay, they would, all of them, within his lifetime, be removed,—this is more than he can naturally regard himself as assured of: but—that by this system, if proceeded in, the removal of them will, as to the greater part of them, be rendered impossible, so long as it is persevered in,—this is what he may stand perfectly assured of.

26. By what causes have such establishment and support been produced in the minds of these same persons? by obtuseness? or by ill-directed acuteness? Answer—naturally enough, by a mixture of both.

27. Of obtuseness, an exemplification seems to be afforded by the so-long-established Swedish legislation. Bodies, acting—in appearance, in conjunction with,—in effect, in subjection to, the monarch: four—nobles, clergy, burghers, peasants. These classes being regarded—each by itself, and each by the rest and by the king—as having an interest to itself, different from that of every other,—separation followed of course:—by each of these, the exemption from the observation of all persons, liable to possess, on any occasion, an opposite and rival interest, would naturally enough be regarded as an advantageous as well as agreeable circumstance: and the monarch would see his advantage in playing them off one against the other.

28. Mark now the benefit which the authors reap—(and is it possible they should not look to reap?)—from this policy. No less than, so far as regards themselves, and the public evils from which they reap the private benefit,—the perpetuation of that same benefit and of those same evils, for the sake of it.

29. Inconvenience there would be, and to an indefinite amount, in so unpleasant an operation, as that of standing up and arguing, in defence of all these several arrangements—each of them, with its evils seen in its transparent womb,—so numerous, all the time, the cases, in which, the light of day having been cast upon them, silence, nonsense, or glaring absurdity, would be the only option at the choice of a would-be supporter of them.

30. Thus it is, that that which eloquence would in vain strive to do in retail, delay, in the hands of cunning, does, and with complete effect, by wholesale, for and during a time, which (as English lawyers say of memory) for aught “runneth not to the contrary,” is abuse in all its forms, and thence in all its unduly profitable forms, continued and profited by:—remedy, in all its forms, excluded.

31. Thus, under matchless constitution, in the minds of rulers whatsoever acuteness has place, it is to work of this sort that it applies itself. Yes: not merely to indolence and incapacity, but to craft likewise, may be seen to be with truth imputable the so-conspicuous nothingness of parliament. So to order matters, that, for the bringing forward propositions in relation to any subject, by members of either house, acting otherwise than by and under the direction of those of the king’s cabinet, the quantity of time shall be minimized,—such is the problem, on the solution of which, what little intellectual and active aptitude can have residence in such a place, is at all times occupied. As for abuses, in all their shapes,—for giving increase to them, time is always at the command of ministers: for diminution of them—for remedy to them—time for so much as the attempt is never at the command of any one else.*

32. One way of making amends for this disaster might be to set up and open an Historical School, à la mode de l’Allemagne: and instead of sending the Schoolmaster abroad, send for a schoolmaster from abroad. Monsieur l’Herminier in France,—or Der Heer Savigny, in Germany,—could furnish admirable masters. It is not every man that knows, that by this same school a history of law is spoken of,—and with no small assurance,—as a most advantageous substitute to law itself: for any country whatsoever, the history of the law of that same country, with or without the history of the law of this or that other country or countries, new or old; and that, by these philosophers, it is mentioned with perfect sincerity, and no small carnestness, that by an historical work of this sort, direction sufficient may be given to the political conduct of men in that same country.

33. Upon the same principle, to what incalculable amount might not improvement be made in other departments? To the army and the navy of a country, substitute, for example, a history of the wars waged by that same country, from the earliest, or other more appropriate, period in the general history of that same or some other country, down to the present time, or some earlier time?

34. So in private and domestic life. To an order on the cook for dinner, substitute a fair copy of the housekeeper’s book, as kept for and during the appropriate series of years, whatsoever it may be.

35.—vii.Objection the seventh.—Perniciousness, resulting from prevalence given to minorities over majorities. In comparison of this, the evils above mentioned, immense as is the mass of them, are still but evils of detail. Behold in this a still more strictly all-comprehensive evil: not actual suffering indeed, but an unquestionable cause of it in every one of its shapes. Read and consider whether this is not true.

36. For the performance of the operations in question, a set of men have been selected. And who are they?—that is to say, for the purpose in question, what are they? By the very supposition, they are the most apt of all that could have been selected: all of them, for any difference that can be assumed and applied to the case in question, equally apt. Well, then.—In relation to whatsoever may happen to be the question—in this, as in any other set of men, disagreement is liable to have place. Wanted, then, a test of rectitude; and, at the same time, a measure of the degree of probability as to its having place. One test, and at the same time measure, does the nature of things admit of:—this, and no other:—namely, the ratio of the number on one side to the number on the other side: that division, the component individuals of which are in the greatest number, being composed of those who are on the right side; the other division, of those who are on the wrong side.

37. Here, then, we have an undisputed and indisputable test and measure of rectitude. Apply it now to the purpose of ascertaining the consequences of having a second chamber. What are they? Answer—On every question, which comes in the first place before the first chamber, and then before the second chamber,—to the right decision of the first chamber may be substituted a wrong one. I do not say, that, to that same all-comprehensive extent, this is probable; but what I do say is—that this is possible.

38. Measure (I say) as well as test. And now as to the production of evil by the addition of this lumber, see an exemplification of the degree of probability capable of being shown by the application of this measure. In the first chamber, number of members, suppose 500: in the second chamber, 5. In the first chamber,—for the measure in question, all 500; against it, 0: in the second chamber,—for it, 2; against it, 3. Put now the numbers in both chambers together, you have—for it, 502; against it, 3. What is the consequence? The three prevail over the 502; the beneficial measure, whatsoever its importance, whatsoever the evil flowing from the rejection of it—is rejected.

39. Note—that, under matchless constitution, this same number 3 is actually sufficient to give existence to the noxious effect, even though in the first chamber the whole number—658—were unanimous in favour of it. In the second chamber—namely, the House of Lords,—the number necessary, but sufficient, to give exercise to the power of the whole is 4; majority, 3.

40.—viii.Objection the eighth.—Perniciousness through rival contention. Continue or institute a second chamber,—mutual relations in respect of extent of power (competence it is called) must somehow or other be settled: competence of jurisdiction they call it, where the two authorities in question belong to the judiciary establishment. But, in the present state of jurisprudence, the chances against a clear adjustment—such as shall shut the door against doubts and disputes—are by no means inconsiderable. Whence, for so long as these same authorities are clashing, and waging against one another a war of words, all useful business being at a stand,—the war has them for the combatants, but you—the members of the whole community—for the sufferers.

41.—ix.Objection the ninth.—Perniciousness through complication. In legislation, whatever is needless is pernicious. Altogether upon its being known depends all the usefulness of the law—of the whole and of each part of it: the production of every good effect it is capable of producing; the exclusion of every evil it is capable of excluding. Abundant—unavoidably abundant—much more than could be wished—is the quantity of legislative matter that will be found unavoidably and indispensably requisite for the purpose: not inconsiderable (as above) the quantity of doubts and disputes, to which it will be liable, and likely, to give birth. By every syllable added, increase will be given to the abundance of this same matter, increase to the difficulty of keeping it in mind, and, on each occasion, in the instance of every person concerned, to the probability of its not being in his mind; also, in regard to whatever portion of it happens to be in his mind, to the probability that the import of it will be a subject-matter of doubts and disputes: thence, at the charge of the aggregate number of the members of the community, to the probability of the commission of acts of maleficence prohibited by the law under the name of offences—of correspondent wrongs inflicted and sustained—of instances, in which the benefit intended by the institution of the correspondent rights fails of being enjoyed.

Not the less real are these evils, from being to so lamentable an extent unheeded.

42.—x.Objection the tenth.—Inoperativeness as to good. Here again applies the onus probandi. If any one knows of any positive good in particular, that can be done by and with a second chamber, and cannot be done without it, or that is more likely to be done by and with a second chamber than without a second chamber—let him declare it.

43. In relation to positive evil,—the effects and tendency of any such additional machinery, when applied to the manufacturing of laws, have, by the foregoing observations, been brought to view: its needlessness to all beneficial purposes, its perniciousness, its fruitfulness in positive evil—in so many distinguishable ways:—so, in like manner, in relation to positive good, its utter inoperativeness will, by the application of these same observations, be rendered not less manifest.

44. In and by this phrase—security against precipitation—a sort of apparent positive good—a nominal one it may be called—is held up to view as produced by the institution of a second chamber: Nominal? Yes; that is to say, in contradistinction to real.*

Inconsistent is the notion of any such security with the original supposition and assumption of the superior aptitude, in all its branches taken together, in the instance of the population of the first chamber, as compared with that of the second: in the first chamber, defalcation from the quantity of time requisite for consideration and discussion, men cannot, on any individual occasion, make in any other than the voluntary manner as above explained: whereas, without any exercise of the will, and to an amount more or less considerable even against the will, or, as the phrase is, in contrariety to the wish of a second chamber, is addition made, in each instance, to the quantity of delay, which, were there but one chamber, would be necessary.

45. In a chamber acting singly,—no such precipitation, any more than any other occurrence or state of things, bad or good, can have place—against the will of the greater number of its members. Small is always the number which, on any occasion, suffices for making delay to which no determinate limit is capable of being assigned: and this—not only on sufficient, but even on insufficient ground; and when the delay produced is useless, as well as when it is beneficial and needful.

46. True it is, that by means of non-attendance on the part of a certain number of the members, decision may be made to have place in contrariety to the will and wish of the greater part of the whole number of the members. But, in this case, the fault lies in the non-existence—not of a second chamber, but of the arrangements necessary to secure constancy of attendance.*

§ IV.

Dutch Reasons in support of a Second Chamber examined.

1. I had gone thus far, when a most instructive and satisfactory document came within my observation. It is a report,† presented to the king of the Netherlands by a commission charged with the revision of the instrument now in force in that kingdom, under the denomination of “The fundamental law.”

2. In this document, with the satisfaction thus expressed, I see taken in hand the question between one and two chambers. “Representatives of the nation” is the appellation by which it characterizes the aggregate body of those functionaries, of whom, with the addition of the king, the sovereign authority is composed.

3. For support to the system of two chambers, reasons the report furnishes, in number, at any rate, altogether respectable. Let us take a look at them. The first, then, to be looked for is—the end in view. For, this will serve as a key to all the reasons—in a word, to everything that comes after it. What, then, is this same end in view? Answer—It is “l’esprit de la monarchie; l’esprit de la monarchie le prescrit, l’intérêt de la nation l’exige.”‡ The power of locating the members of the second chamber is the subject-matter of which this is said: and, if conformity to this same esprit is the proper end in view in that one case, it must be because so it is in every case.

4. Now, then, what is this same esprit? Let us take a sniff at it. A sort of bubble it may be seen to be:—and inodorous—empty of scent and sense it would also be, were it not for the interêt de la nation, which comes immediately after it, and that which, by this means, is rendered manifest is—that the state of things, the establishment of which was, on this occasion, the object of endeavour, was—not, in the first place, and beyond all things, the interest of the nation—or, in other words, the greatest happiness of the whole number of the members of the community—but a something or other, a sort of matter the value of which consisted in something which it had to do with the monarch.

5. Vesicular as may be seen to be the character of this same end in view, the means, as indicated by the reasons by which it has been preceded, will not (it is believed) be found to mismatch it. Reasons I style them without hesitation; the purpose for which they are exhibited being manifestly that for which, on the occasion of a proposed law, reasons are made to accompany it: namely, the obtaining for it a sentiment of approbation at the hands of readers. But as they successively enter upon the stage, not reasons,—not, as grammarians say, sentences,—as logicians say, propositions,—but allusions to reasons, the several locutions will be seen to be:—allusions, nothing more.

6. As to the order in which I proceed to lay them before you, my fellow-citizens, it is that which the learned draughtsman has given to them: it is not for me, it is not for a commentator, under any such notion as that of improvement, to substitute a different one. Thus, then, they may follow:—

7.—i.Bubble or vesicle the first. “Le grand accroissement que l’état a reçu:” the great increase which the state has received. Increase indeed! and you, my fellow-citizens, you are now seeing—and the state thus increased (not forgetting the king of it) is now feeling—some of the consequences of this increase. But now mind the spirit of oppression which lurks under the word increase: the least populous community, Holland, the principal one: the most populous one, Belgium, no better than an accessary one—forced into subjection under it.

8.—ii.Bubble or vesicle the second. “Le rang qu’il prend parmi les nations de l’Europe:” the rank which it takes among the nations of Europe. In comparison of the rank of the nation, what signifies the happiness of the individuals of which it is composed? Just nothing: for, amongst all their reasons—thirteen, or thereabouts, in number—nowhere is any mention vouchsafed to be made of it. Rank of the nation! Say rather, rank of the king: that being the rank preserved to the functionary, the rank of whose father stood expressed by the inferior denomination of stadtholder: of his father whose successor he was in the Dutch provinces; the rank of king being preserved or restored (which you please) to the son, upon the expulsion of Louis Bonaparte, and fructified by the increase of power given to it by the addition of the Belgic provinces.

9.—iii.Bubble or vesicle the third. “La diversité des élémens dont il est formé:” the diversity of the elements of which this same state had been formed. Oh yes! diversity but too great: reason sufficient to have prevented the formation. Fellow-citizens! the consequences are before your eyes.

10.—iv.Bubble or vesicle the fourth. “Desintérêts plus compliqués:” interests more complicated. Oh yes! forming against the junction, a reason, the strength of which is as the degree of the complication. To the junction of the two states it is that this reason bears relation. As to the question between the chambers—between chambers one and two—what has this same complication to do with it? Find out who can.

11.—v.Bubble or vesicle the fifth: allusion made to experience. “Nous ont imposé le dévoir de ne pas dédaigner les leçons de l’expérience:” they (to wit, the above-mentioned four bubbles) have imposed upon us the duty of not disdaining the lessons of experience. The reason here alluded to is that which, further on, I shall have occasion to spread out before you in some length and breadth, under the appellation of authority-begotten prejudice.

12.—vi.Bubble or vesicle the sixth: prevention of precipitation. “Pour empêcher la précipitation des deliberations:” to prevent the precipitation of the deliberations themselves: this is what is said. To prevent the precipitation of the result of the deliberations: this is what cannot but have been meant. By addition of the deliberations of one assembly to those of another, how can prevention, or so much as diminution, be applied to the deliberations of the first? Of any such addition, decrease in the quantity of time employed in deliberation—decrease (as before observed) rather than increase—presents itself as the natural consequence. Why? because in the eyes of opponents in a first chamber, the greater the opposition expected in another, the less urgent will be the need of opposition in that same first chamber.

13. And as to the deliberation thus added,—which is the chamber in which, if at all, it has place? Answer—That in which it is least assured of having place: the other being the principal seat of the legislative business,—the only one in which the more important part of the business can originate: the only one in which any regular attention to the business stands assured: not to speak of its being the only one in which an unbroken unity of interest and affection with the community at large has place: the only one in which any efficient sense of responsibility to public opinion—to the opinion of the community at large—has place.

14.—vii.Bubble or vesicle the seventh: a dike against the passions. “Pour opposer, dans les temps difficiles, une digue aux passions:” to oppose, in difficult times, a dike to the passions. Here again behold the Dutchman. A Dutch image, not a Flemish one, is this of the dike. A dike indeed? Say—as well or rather—an additional impulse,—an impelling gale. If the passions meant are the angry passions (and such they can never fail to be,) what will naturally be the effect of any such dike? When the deputies of the people, by labour to an unlimited amount, have prepared what they think will be for the benefit of their constituents,—what is easy enough to conceive and understand is—how the thought that there is another body of men which has an interest different from theirs, and mostly opposite, by which this child of their labours and affections is continually in danger of being thrown out of doors—how this thought (I say) should stir up a gale of the same angry passions:—how it should produce a calm, or moderate any such gale, seems not quite so easy to conceive.

15. As to the effect of those same angry passions, when it consists in the proposition of a law not agreeable to the second chamber—here indeed the dike comes into existence and into use: it does keep the proposed law—if not from coming in, at any rate from staying in, and becoming an actual law. Somewhat of a misconception seems here to have crept in: a storm, or the cause of one, taken for a dike.

16.—viii.Bubble or vesicle the eighth: barrier to the throne. “Pour entourer le trône d’une barrière contre laquelle se briseraient les factions:” to surround the throne with a barrier against which factions will break themselves to pieces:—in plain language, to deprive of their wished-for effect the opinions and wills of those, whose opinions and wishes are, as near as they can have been made, to the being the opinions and wills of the whole population of the nation, or at any rate of the most enlightened part of it. By factions is meant, as far as anything to the purpose is meant, parties entertaining designs and using endeavours of a nature detrimental to the interest, or say the happiness, of the whole community, or the major part of it. This being the meaning, that which is presumed by the reporter is, that evil to the community is more likely to be prevented by men who, not being chosen by the people, have an interest opposite to that of the community at large, than by men, who, being chosen by the people, have not any interest opposite to that of the community at large. If such be really the truth, something a little like proof of it might not have been amiss. But presumption is shorter than proof, and saves trouble.

17.—ix.Bubble or vesicle the ninth: security against usurpation. “Pour donner à la nation une parfaite guarantie contre toute usurpation des agents de l’autorité:” to give the nation a perfect security against all usurpation by the agents of authority. Usurpation? of what? this is not said. At the cost of whom? this is not said. By whom? this is not said. What is not said but necessarily implied is, that there is something good, which some authority or other is inclined to usurp, and which a second chamber, constituted as proposed, is not at all inclined to usurp; or at any rate is not so much inclined and moreover able to usurp, as is a first chamber composed of the deputies of the people aptly chosen, as above. Thus vesicular is the security against usurpation.

18.—x.Bubble or vesicle the tenth: example of powerful monarchies. “A l’exemple des puissantes monarchies:” after the example of powerful monarchies.

19.—xi.Bubble or vesicle the eleventh: example of flourishing republics. “A l’exemple des républiques florissantes: after the example of flourishing republics. Monarchies mentioned first—mentioned before republics, of course. Thus commanded Madame Etiquette. And see now what, under the management of our learned draughtsman, comes of obedience to her commands. To powerfulness the precedence is given before flourishingness; flourishingness meaning, if it means anything to the purpose, happiness. As to powerfulness—purposes to which, in the case—whether of an individual or a community—it is applicable, two: preservation of himself or itself against wrongs, one: inflicting wrongs, another and somewhat different one. Now then, mark the practical consequence of the prevalence thus given to powerfulness: applied to the first, it is useful and desirable: applied to the other purpose, it is mischievous and undesirable. Employed thus without modification or explanation, the word is but too apt to be employed in the endeavour to promote that one of the two purposes which is purely mischievous.

20.—xii.Bubble or vesicle the twelfth: non-adoption of certain foreign institutions. “Pour operer cette division (en deux chambres) nous n’avons pas adoptés des institutions etrangères, qui pourraient ne pas bien s’amalgamer avec nos institutions nationales:” to effect this division into two chambers, we have not adopted foreign institutions, which would be liable not to amalgamate well with our national institutions. True: not adopted by the royal receiver of the Belgians under his yoke, were the institutions of any nation foreign to both the nations so joined together. But—what has been so much worse—joined and forced together were these two nations, the institutions of which amalgamated so far from well, the one with the other.

21.—xiii.Bubble or vesicle the thirteenth and last: something done with the principles of the division. “Nous avons puisé les principes de la division, dans l’esprit qui l’a fait adopter: we have drawn the principles of the division from the esprit which has caused them to be adopted. As for esprit, give the meaning of the word who can. Were I obliged to make the attempt, the word I should render it by would be—gas. This thirteenth makes (you may perhaps think) no bad finish to the twelve bubbles or vesicles, its predecessors.

22. Fellow-citizens! here you have—not only two packets of mutually opposite reasons, but two somewhat different manners or modes of reasoning. You will judge.

23. Tempting is the invitation: but the above is everything that belongs strictly to the present question. For any ulterior examination, no duty calls: but to have stopped short at any part of this reasoning would have been a denial of justice.

§ V.

Sole proposable Locator for a Second Chamber, a King. Further Objections hence.

1. Now as to location. In the present case, sole authority proposed for the placing of men in this same second chamber is—the King. Sole proposed. I add—or proposable: and this—whatsoever be the duration of the authority of a member of this same chamber: whether hereditary, as at present; or for life only, as in the case of one of the Netherlands chambers; or for a limited term of years, as in the case of the Senate of the Anglo-American United States Congress.

2. Too true it is—that, in the case of that same republican second chamber,—the authority by which the function of locating its members is performed, is—not that of a single person, but that of a numerous body. But, in that case, for the exercise of this function otherwise than by a king, there exists a set of hands which in the present case has no place, and by those hands exercise is given to it accordingly. Those hands are those of a body composed of the “legislatures” of the several states.*

3. In a king, forget not, then, that you have a functionary, whose interests are, to an immense extent, in direct opposition to that of the great body of the people—a functionary, who to that interest by which every man is, on each occasion, urged to sacrifice to his own happiness that of all besides, adds the power of effecting, to an immense extent, that sinister sacrifice.

Who can deny the existence of this opposition of interest? Let us see. For, behold the means he has:—but, of this presently. Such being the nature of man, how can I help its having place? And, should I leave it unmentioned, when your happiness is in so great a part at stake upon the clear conception and full consideration of it?

4. In a chamber of peers, if continued, you will have a body of men, whom it will be in the power of the king to render contributory to that same sinister sacrifice. Will and power united, does not the effect follow?

5. By the same means by which he would have it in his power to render the chamber of peers contributory to this same sinister sacrifice,—by this same means, but for one obstacle, would he have it also in his power to render your deputies correspondently, and with like effect, contributory to it. This obstacle is—the dislocative power, retained in the hands of the constituents of those same deputies. This power, it is not proposed, nor will it be proposed, they should possess, with reference to the members of the house of peers, or of any other sort of second chamber, composed of members placed in it by the king.

6. Such being the king’s interest, of this same interest will he, of course, on every occasion, obey the dictates: continuing the sinister course to the utmost length, that his imagination and his judgment join in presenting to his view as consistent with his present safety and convenience.

7. Well: now for a few particulars of these same courses. Like any other man in his place, this same all-powerful functionary will, at all times, have among his endeavours—to obtain, and so far as is consistent with enjoyment to retain, the possession of all imaginable instruments of enjoyment in all their shapes:—money, to wit, and money’s worth, power in all its shapes—that power free from responsibility:—add reputation, respect, and love:—of the two latter as much as possible, and how little so ever merited:—add, moreover, factitious honour and dignity; vengeance as far as provoked by resistance; ease as far as consistent with enjoyment; security for all these possessions—most entire: security at whatever expense to the people produced, or endeavoured to be produced.

8. For all these same instruments of enjoyment, the cupidity of man in all situations is such as all men feel and see. But, in the situation of king, it is in a particular degree insatiable. Consciousness of the power is continually stimulating and sharpening the desire.

9. He who wills the end, wills thereby all necessary means. In the present case, the means are those, for the designation of which the words corruption and delusion may be employed. On this occasion, corruption—political corruption—requires complete dissection, which it has never yet had. My children, wait a moment: the theatre will open presently.

10. “What a picture”—(I hear some of you saying)—“What a picture, old and gloomy-minded man! are you giving us of human nature! as if there were no such quality as disinterestedness—no such quality as philanthropy—no such quality as disposition to self-sacrifice—in the whole species: no such individual as a king taking a pleasure in his duty—doing, on all occasions, his utmost to promote the happiness of his people!

“Notions such as these! and with proofs to the contrary—proofs so brilliant and so indubitable—all the while before your eyes!”

11. Now for my answer:—My children, I admit all this. I do not deny it: I cannot deny it: I wish not to deny it: sorry should I be if it were in my power to deny it. Not the less do I maintain the fact—that, of the human species, as of every other, the very existence depends upon the established, and almost uninterrupted habit of self-preference.

12. But I will not—for I need not—trouble you with the developement of this truth. I will not—for I need not—attempt to draw you into any such dark recess as the den of what is called among you metaphysics, in which the springs of human action are looked into and hammered at. I need not. And why? Even because my belief in this truth prevents me not from believing in any of those things which you suppose me to deny.

13. Yes: I admit the existence of disinterestedness in the sense in which you mean it. I admit the existence of philanthropy—of philanthropy even to an all-comprehensive extent. How could I do otherwise than admit it? My children! I have not far to look for it. Without it, how could so many papers that have preceded this letter, have come into existence? I admit the existence of a disposition to self-sacrifice: How could I do otherwise? Could I deny the existence of the work of the three days?

14. Yes, I admit—not only the possible existence—I admit the actual existence of a king who takes a pleasure in doing his duty,—of a king who, on all occasions, does his utmost to promote the happiness and interests of his people.

15. Oh how charming to my heart is the impossibility of an inward refusal to those admissions! But my children! it is on what has been seen most commonly to happen,—and thence presents itself as most likely to happen—it is upon this that all practice, if it has any pretension to the praise of prudence, must be built.

16. All men are not Frenchmen. Frenchmen have not been at all times what they are at the present times. Even Frenchmen cannot be depended upon for being, under all circumstances, what they are under existing circumstances. What if they could be? All Frenchmen are not men of Paris: all men of Paris are not men of the three days.

17. Then as to kings. All French kings have not been Louis Philippes. No other king ever was what Louis Philippe is. No other king of the French ever will be what Louis Philippe is. Louis Philippe himself will not continue to be what he is, if a chamber of peers is suffered to continue, or any second chamber is constituted in the room of it. No: Louis Philippe himself will not continue to be what he is, if any such temptation to change is suffered to have place.

18. And why is it that, even if he could, no other king could, with such a power in his hands, be depended upon for not abusing it? My children, I will tell you why.

In the situation of king, cupidity for the above-mentioned good things—cupidity for all sorts of good things—is essentially insatiable. Yes: in that situation, above all others, your proverb is exemplified—l’appetit vient en mangeant.

19. Come—I will give you an example. I will not speak of a Ferdinand the Beloved—I will not speak of a Don Miguel. You have heard of a George the Third—I will speak to you of this same George the Third.

20. Best of kings was the title bestowed upon him:—best of kings, by acclamation—by general acclamation. To George the Third, best of kings, as to Voltaire, prince of poets, during his lifetime: witness Mount Parnassus. Look, then, at this best of kings: and then let each of you ask himself—what can I reasonably expect at the hands of an average king? and in particular of an average king, with a chamber of peers, in these same royal hands, to work upon, and work with, and mould to all his royal purposes?

21. Well then: now for a specimen of him.

i. The commencement of his reign was distinguished by the endeavours of many years to ruin a man for an indecorous word: this endeavour ended in making the man’s fortune.

22.—ii. His income was somewhat less than that of your Charles the Tenth: it did not satisfy him.

23.—iii. In the course of that same reign, nine different bankruptcies did he commit. Nine different times did he make those Lords and Commons of his pay those debts which he had contracted without their consent. So at least it was said in that same House of Commons, and no contradiction given to it.

24.—iv. As often as a tax was imposed upon all other incomes, those of all other functionaries included, he caused his own to be exempted from it.

25.—v. At his instigation, a king of Sweden afflicted Russia with a war as completely unprovoked as any that is to be found in history. To feed this war, he laboured to plunge into it his own country:—he failed; and my latest breath will be cheered with the thoughts of having been the author of that failure.

26.—vi. He shared, with my virtuous but misled friend, Brissot, the authorship of your revolutionary war, with the debt under which we are everywhere still groaning.

27.—vii. When war was made by England upon Spain (it would be foreign to the subject to inquire upon what grounds,) he caused it to be begun in a piratical manner: and of this manner seventeen millions sterling, placed at his private disposal, was the fruit: the faith of Parliament,—his own, with that of his Lords and Commons,—being thus broken, to the injury of the men at the price of whose blood the booty had been earned: the work of blood and plunder being begun by surprise—no declaration of war made, if at all, till this booty had been secured.

28. Once more. If—with peers, and nominees of peers, for instruments of his goodness—such a king was the best of kings,—what think you of an average one?

29. Such was he with his house of peers. Not but that for him to be what he was with those same instruments to work with—a house of commons, such as those he had, would have been sufficient:—a house of commons, nominated by peers, or by men longing to be peers—a house of commons such as he had, and such as his successors and their subjects are destined to have,—unless, peradventure, on some beautiful day, London should pluck up spirit enough to take a leaf out of the book of Paris.

To warrant a king in keeping in training, upon appropriate principles, his men-of-all-work, an appropriate maxim has been deemed necessary. Accordingly, of the number of axioms laid down and acted upon is this axiom: Aptitude is as opulence. The situation being given, you allot to it a mass of emolument; this done, you take any man whatsoever, and place him in it: no conditions of eligibility—or, as we say, no qualifications—of any sort that have any the most distant relation to the business of the office, do you require him to possess. The emolument received by him does everything that is wanted: the larger the mass of it, the higher will be his degree of aptitude. If in that derivable quality any deficiency happens thereupon to manifest itself, it is a sign that the mass was not large enough. You accordingly add more to it: if still there is a deficiency, real or supposed, you add more still: and so toties quoties.

By cramming them with money, kings are, according to this maxim, in proportion to the quantity of the money, made fit for reigning. Fellow-citizens! is this really so? Consider and answer to yourselves.

By cramming, fowls are fitted for the table: true. By cramming, the queen-bee is fitted for her throne: true. By that same process, when then will kings be fitted for this same seat?—when by that same process sharks are tamed, and rendered fit for the saddle, as by Arion dolphins.

To the process of cramming, in the case of fowls, nature sets bounds. So does she in the case of the queen-bee. But, in the case of a king of England, or any of his creatures, where are the limits set by anything or anybody?

Yet, when and in so far as they are honest, this is the thing laid down by an English statesman, and built upon:—yes; built upon in practice. But, weak as they are, can you really believe them so to be to such a degree as this?

Fellow-citizens! here is no exaggeration: it is the simple truth: my credit is at stake upon it. We have a minister, who, under the Duke of Wellington, governs the country; and, under nobody, governs the House of Commons. His name is Sir Robert Peel. I took him t’other day in hand. I laboured hard to persuade him—that money is not aptitude:—money, and, in particular, public money, wrung from those by whose labour the money’s worth was produced:—that money is not honesty: that money is not knowledge; that money is not judgment; that money is not active talent, applied to business such as that of the office. No: all that I could do, I could not bring him to perceive, that a man’s having had experience in that same business gave a better chance for his being fit for the doing of it, than could be given by any money that could be put into his pocket.*

Such management, guided by such intelligence, goes with us by the name of government. The so-governing and so-governed, you may perhaps look upon as not ill fitted to each other.

Labour in vain was all this labour; and so it will continue to be, till those, by whose labour the money so disposed of is produced, take up the matter, and say, that that which the labourer is content to take for his hire, that, in this case, as in every other case, that, be it ever so little, is sufficient for him to receive.

Yes: labour in vain has been hitherto all this labour. Lost it has been upon the counterfeit representatives of the people. Still, among them, the cry is—Aptitude is as opulence. Lost it has been even upon their so-called constituents. No man have I prevailed upon, as yet, to join with me in proclaiming—Aptitude is not as opulence.

§ VI.

Corruptionists unavoidably the Members of any Second Chamber—Objections thence—Corruption dissected.

1. Fellow-Citizens! I must now speak to you of corruption and delusion. Intimately connected are these two things with the subject-matter of this inquiry; so likewise (as you will see) with one another.

2. By the words corruption and delusion (delusion in English, in French illusion,) are designated, in both languages, not only the effect produced, but the cause of that same effect: not only the effect which will be produced upon the members of this same second chamber in case of its existence, but the cause by which the production of that same effect will be seen to be unavoidable. For, such in both languages is the poverty of language; and such, in and by both of them, the confusion spread by that poverty over so considerable a portion of that same instrument of thought and converse.

3. Corruption, political corruption, is a sort of thing which is continually in every pen and every mouth. But, in the course of my inquiries, some shapes in which it makes its appearance to a vast extent, have presented themselves to my view—some shapes, of which it has not happened to me to see or hear mention made anywhere else.

A complete dissection of this same corruption is accordingly an operation, which presents itself to me as being, on the present occasion, an indispensable one. Be the shapes of it in which you exclude it ever so numerous, as good might you leave it unexcluded in all, as leave admittance to it in any one.

4. It is not an agreeable one. To myself, I am sure, it is not: to you I cannot expect it to be. Of this I thus give you warning: whether he will submit to the drudgery, will thus depend upon each man’s choice.

Thus explained,—

5. By corruption you will understand—any act or state of things, by which, by means of its operation on his will, a functionary is induced to act in a course, deviating in any manner from the path of his duty.

6. By delusion, effects producible by corruption are produced by an operation applying to the understanding: to the will, no otherwise than through the medium of the understanding.

7. My children! you see already the practical use there is in holding up to view—the need there is of bringing to view—everything that can be contributory to the production of this maleficent effect—every occasion on which it can happen to it to be productive. This is not a question of mere words. Good government depends upon—or rather is the same thing with—the undulating progression of each functionary in the path of his duty. In so far, then, as his means of happiness depends upon the goodness of the government, the happiness of every man that reads this depends upon the non-deviation of the several functionaries from the path of their respective duties. Of the exhibition thus made, the end in view is—the engaging those on whom it depends, to minimize the quantity of the matter capable of this operation, and the number and extent of the occasions on which it is capable of producing this effect.

8. On this occasion have patience with me, and you will see brought to view, for the purpose of their being guarded against, ways and means, in and by which the effect of corruption is produced—ways and means to no small extent outstretching all that as yet have been generally in view.

Half a dozen of these you will see—or thereabouts—more or less: as they are presented to your view, indication will be given of their supposed novelty.

9. By matter of corruption understand everything capable of having corruption for its effect, and thereby applicable by man to the purpose of producing it: matter of corruption, say for shortness. Say also, upon occasions operating as an instrument of corruption.

10. The matter of corruption is either the matter of good or the matter of evil. Yes, the matter of evil: for with this effect is the matter of evil capable of operating, no less than is the matter of good;—yes: and with even still greater force and efficiency: capable of operating, and to a vast extent, and with a deplorable degree of sinister efficiency,—actually in use to be made to operate.

11. Of the several modifications of the matter of good you have had already—if not a complete list,—exemplifications in large number:—namely, those which, in speaking of the situation of the functionary called a king, were exhibited in the character of objects of his cupidity, or say concupiscence. So many modifications of the matter of good, so many shapes in which, in the character of an instrument of corruption, the matter of corruption is capable of operating.

12. Of the matter of evil, all the several modifications capable of contributing to the production of this effect, you will have in view—in proportion as you have in view those evils, which are capable of befalling a man, and being to this purpose employed, in such manner as to be made to appear to him to be continually about to befal him, without exposing the employer to suffer for so doing at the hands of the judicial authority.

13. In this case, the matter of good acts (you will see) in the character of matter of reward: matter of evil, in the character of matter of punishment.

14. Behold now a circumstance by which proof and exemplification is afforded of the truth—the important truth—that, in the character of an instrument of corruption, the force and efficiency of the matter of evil is greater than that of the matter of good.

15. By the matter of good,—that is to say, by the eventually expected receipt or enjoyment of it,—how great soever be the value of it, the power of choice is not to common conceptions considered, and in common language accordingly spoken of, as taken away: whereas, by the matter of evil,—when the amount of it rises to a certain height, the power of choice is commonly considered and spoken of as being taken away: as commonly, as, by a loaded pistol applied to a man’s breast, accompanied with the demand of his money, the power of choice is considered as being taken away.

16. Note here—that the same portion of matter operates in the way of matter of good or matter of evil, according as it comes to the individual in question, or goes from him: by coming to him, it operates as matter of good; by going from him, it operates as matter of evil: and, by going from him, it operates upon him with much greater force than by coming to him: coming to him, it operates no otherwise than in the way of reward; going from him, it operates in the way of punishment.

17. Take any man for example,—and suppose the value of the whole amount of his property to be £100: with much greater efficiency, in the way of producing compliance at his hands, will the apparent probability of his eventually losing this same £100, than will the same apparent probability of his gaining £100.

18. For holding up to view an evil of such immense magnitude, and thence presenting the demand for remedy,—you will (I flatter myself) not be backward in recognizing the demand for some means of designation: a demand as urgent as that which gave existence to the denominative corruption, in the case where the matter of good is the instrument by which the maleficent effect is produced. No such appellation being in use, it seems to me, that by giving the requisite extension to the existing appellation corruption, the deficiency may, in a more convenient manner than by any other word or locution, be supplied; compulsory, or say compulsive, or else intimidative, the corruption being, in this case, styled; remunerative* in the other case.

19. Now, as to the various shapes in which the matter of good, operating in the character of an instrument of corruption, is capable of having existence. One of them is patronage.

20. Among the modifications of the matter of good brought to view, as above, you may have made observation of the various situations, of which the official establishment of a community is composed or composable.

21. The happily rare case excepted,—in which the incumbents follow one another in the way of hereditary succession,—in the case of every one of those same situations, for every person or set of persons placed—located say—there cannot but be a person or set of persons, by whom he or they are located—say a locator or locators. For any such locator, patron is the term in common use: patronage, the name of the portion of the matter of good, possessed by him, in such his capacity.

22. Here then—of any such situation the possession cannot have its value, and consequent efficiency in the character of an instrument of corruption, but the patronage of it must have a correspondent value.

23. In the case in which an ecclesiastical benefice is the situation in question, the patronage is denominated an advowson. This same advowson possesses a marketable value, just as any ordinary estate in land does: ten years’ purchase perhaps, more or less. This then, or thereabouts, subject to correction, may be stated as the relative value of the patronage of any such office. This, and no more, may be stated as the value of the patronage of an office to the patron, when the individual, whom he locates in it, is any person taken at large; many more years’ purchase may it be worth, if the locatee, whom he locates in it, is a son† or other near relative, for whom to this same amount he would make provision out of his own income, were it not for the extrinsic source.

24. Over the possession of a profit-yielding situation in the official establishment, patronage has this advantage—that, whereas to the number of such situations which, even under a corrupt form of government, one and the same individual may have the possession of, there is some limit,—to the number of those which he is capable of having the patronage of, there is not any limit.

25. In England, immediately or by the intervention of middlemen, with exceptions to a comparatively inconsiderable amount, the king has the patronage of all the several situations of which the whole of the official establishment is composed.

26. Of the matter of corruption in this shape (need it be said?) is composed, the motive, by which men are induced to do their utmost for the upholding of a form, system, and practice of government, on which the appellation of matchless constitution, in the endeavour of covering its deformity by a veil of unmerited laudation, is with such unblushing perseverance bestowed; the possessors and cravers of the matter of corruption in this shape, all the while bestowing upon themselves, and one another, the praise of disinterestedness, and so forth.

27. For the production of the maleficent effect styled corruption, not necessary is it that there should really be any person in whose mind any such intention has place as that of administering the matter of corruption, for the purposes in question, or for any other. Why not necessary? Answer—Because any person, disposed to earn the wages of corruption, on sight of any other person occupying a situation which places in the hands of the occupier any adequate mass of the matter of corruption, together with the means of benefiting himself by the administration of it, will presume the existence of an adequate disposition so to administer it, and will act accordingly.

28. From this state of things results the need—the urgent need—of appellatives, adequate to the purpose of planting and keeping in one’s mind, the distinction between the two species of corruptionists—the intentional and the unintentional:—a distinction which (it is believed) is now, for the first time, held up to view.

29. Moreover, here may be seen the place for bringing to view the several classes of persons to whom the appellation of corruptionists may, with equal and indisputable propriety, be applied—namely, active corruptionists, the corruptors; passive corruptionists, styled, by means of the termination thus employed in the ancient law French language, corruptees—in modern French, corrompus.

30. This distinction borne in mind, with indisputable propriety may (it will be seen) be applied the appellations of corruptionist and corruptor to every person possessing power of patronage: the corruption operating, as such, with a degree of efficiency proportioned to the magnitude of such his power: to every such patron, and in particular to every king.

31. What! to Louis Philippe? Yes, to Louis Philippe, and with as indisputable propriety as to George the Third, of blessed memory, or any one else.

32. My children! think of the Medecin malgré lui: he is well known to you. Well, then, here you may see a roi corrupteur—a roi corrupteur malgré lui.

33. But—what should he decline giving his concurrence to any arrangement, by which, without production of evil to a preponderant amount, in some determinate form, the quantity of the matter of corruption, and thence the efficiency of it, would be diminished? The supposition is an unpleasant—an invidious—one; the answer, needless.

34. For production of this same maleficent effect, styled corruption,—as little necessary is it that the matter by which it is produced should, in any determinate shape, be present to the mind on which the effect is produced. Why not necessary? Answer—Because, to the imaginative faculty of a mind appropriately disposed, it will naturally present itself in the most attractive shapes and colours—the shapes being those of the most valuable lucrative situations, or other benefits, which the patron looked to has it, or is supposed to have it, in his power to confer.

35. Hence may be seen—that, of the matter of corruption, when in an indeterminate shape, the efficiency is naturally not only not less, but much greater, than when confined to any determinate shape.

36. And now may it be seen—why and how it is, that corruptionists—the most maleficent of corruptionists, active and passive—how it is, that they are so ready to make law upon law against bribery—leaving corruption, in its compulsory and so much more efficient form, unrepressed, evil in so efficient a manner and degree promoted. Making laws against compulsion, in the form of bribery, they combat it in a form in which, it being, and frequently in a ruinous degree, costly to themselves, they are not unwilling to suppress it: leaving it unrepressed when in the compulsory form, they thus give establishment to it, in a form in which it not only is so much more efficient, but costs them nothing.

37. In so far as they are reduced to have recourse to bribery, the law is against them; and, in this case, to no small extent, they are under the necessity of laying themselves at the mercy of men whose morality they are thus themselves corrupting: at their mercy, not only in respect of the fulfilment of the illegal bargain, but also in respect of forbearance to turn against them, and join in prosecuting them for it. On the other hand, in so far as the form they give to the operation is the compulsive form,—they have, and to a great extent, the law—not simply neuter, but actually on their side. Thus it is, for example, to the whole extent of the relation of landlord and tenant: the landlord turning out, or, by the hand of the law, in various ways tormenting his tenant, in the event of his not giving his vote to the candidate, how unfit soever, whom it pleases the landlord thus to force upon him.*

38. For the production of this same maleficent effect styled corruption, as little necessary is it that the individual, to whom application of the matter of corruption is made, should be the very individual at whose hands the maleficent conduct—the breach of public trust—is endeavoured to be produced. It may be any other individual, with whom the breach in question is connected by any adequately strong tie—whether of self-regarding, or of social, or say sympathetic, interest.

39. Hence it may be seen—how far from being sufficiently grounded is the notion, according to which, by being secured for life in the possession of a lucrative office, in such sort as not to stand exposed to any danger of being dislocated,—a man is rendered corruption-proof: secured, as he thus is, against corruption, in so far as effectible by application made of the matter of evil in that one shape.

40. Corruption-proof?—Yes; if, to that same purpose, he does not stand exposed to the being corrupted by the matter of evil in any other shape.

41. Yes; if, to the purpose in question, he does not stand exposed to the being corrupted by the matter of good in any shape.

42. Yes; if there be no other individual, with whom he stands connected by any such tie as above mentioned.

43. Here accordingly may be seen the imposture so often endeavoured to be practised, by the boast expressed by the word independence: the condition being in fact that of irresponsibility: that is to say, non-exposure to suffering in this or that shape, or in any shape, for any act of maleficence committed by the individual in question, in the situation in question.*

44. Imperfect and inadequate would be the dissection here made of political corruption, if the non-proximate as well as the proximate causes of the disorder were not brought to view. Of the non-proximate there may be any number of removes. Non-proximate of the first remove may be seen in the instance of wars and distant dependencies. Necessitated by the one as well as by the other are lucrative offices.

45. Wars and distant dependencies bear to each other both relations,—that of cause and that of effect. Of distant dependencies, the possession on the one part, the cupidity on the other part, beget war: war has sometimes on the one part distant dependencies for its fruit.†

46. Corruption and waste. Between the two evils thus denominated, relations have place, which, on this occasion, it may be of use to have in view.

47. Whatsoever portion of the matter of good is received or looked for by any functionary of government as such, in particular if received at the charge of the government, is, as hath been seen, capable of operating in the way of corruption.

48. But it follows not that it is in any part of its employment in waste: not only whatsoever is necessary to the support of the government, but whatsoever else is capable of being employed in such manner as to be productive of a balance in the scale: not only is not employed in waste, but ought to be employed in the manner in which, by the supposition, it is employed.

49. To a not inconsiderable extent, corruption may have place without waste. For, if by marks of general kindness on the part of one functionary—and in particular a functionary of superior order—without money or money’s worth expended, another functionary be inveigled into a breach of official duty: here is corruption, but here is not any waste.

50. Natural indeed, but (as hath just been seen) narrow-sighted and erroneous, would be any such maxim as—Let no institution, by which corruption is capable of being produced, be endured.

51. For, in the first place, whatsoever expenditure is to such a degree necessary that government could not have place without it—operates, except in so far as effectually counter-operated, in the way of corruption.

52. In the next place, at the command of government, a means there is by which the matter of corruption may be divested of its poisonous qualities.

53. This means consists of the power of dislocation, if made exercisable on all public functionaries: immediately, or by the intervention of other hands, by the great body of the people in quality of possessors of the constitution authority, by which the members of the legislature are deputed and located.

54. In the case of the members of a second chamber, as such,—and in particular in the case of a chamber of peers, as such,—every portion of the matter of good possessed by them as such, operates in the way of waste, and in the way of corruption, both: and in the way of corruption immediately, because not capable of being counteracted by that power of dislocation, which, with reference to all other functionaries, is capable, as above, of being possessed and exercised by a first chamber.

55. Thus much as to counteractive remedies. Now as to preventive remedies:—against corruption—whether by means of evil, or by means of good, in the case of location by election, one remedy (need it be said?) there is, and but one: but that a certain one. This is, secresy of suffrage: which secresy may with certainty be maintained by the mode of delivering the suffrage, when effected in the way of ballot, as the phrase is:—may be maintained—and accordingly is so maintained, by all persons who are really desirous of maintaining it.

56. What, then, shall we say of him, and of the guilt of him who, seeing the efficacy of the ballot, in the prevention of this corruption—of this oppression—of this tyranny—shall use, and persist in using, his endeavours to prevent the use of this all-efficient and sub-efficient remedy against an evil, by which any form of government, the best in all other respects, is capable of being transformed into the worst.

57. In comparison of the guilt of him by whom any single act of this compulsive corruption is produced,—the guilt of him, by whom the practice of it throughout the whole field of election is advocated, will it not be as the number of men, if any, who by means of such his endeavour shall have been rendered compulsorily corrupt, will be to number one?

§ VII.

Delusion—its contribution to the Maleficence of a Second Chamber.

1. Delusion has two sorts of instruments: the one consists of that portion of the matter of corruption, which is composed of the showy part of the matter of good: the other consists of words.

2. Of these instruments of corruption which are composed of the matter of good,—those which are instruments of dignity, are those, by which, in a conspicuous manner, indication is afforded—either of the powers of the functionary in question, or of the matter of wealth attached to his situation.

3. Of those attached to the situation of monarch, examples are the following:—i. The Crown.—ii. The Habiliments.—iii. The Throne.—iv. The Sceptre.—v. The Armorial Bearings.

4. Of these trappings, to make out a correct and complete list would be a work of no small difficulty and very small use.

5. To those which consist of words, the same observations may apply, with little variation: they must be picked up—these words—wherever they are to be found.

6. Dignity, lustre, splendour, honour, glory, and influence: these present themselves in the character of the principal ones.

7. Dignity is a sort of ignus fatuus, that requires lustre and splendour for the support of it. Itself it is a necessary support to the throne: but then, this same self requires supports; and these are splendour and lustre, or lustre and splendour: one or both, which you please. “This that you are writing (I think I hear you, my children, saying) is stark nonsense.” Yes: so it is, indeed: but nonsense cannot be appropriately represented without nonsense.

8. Think how many hundreds—thousands—myriads—are every year, in England—not to speak of other countries—consigned to a lingering death: all of them by taxes imposed, and means of sustenance thereby snatched away—all for the support of the lustre and splendour of the throne, the crown, and its dignity.

9. The splendour and lustre that have gaslights for their efficient cause and support, and are employed in keeping accidents and offences excluded from streets—these are of real use: but with those the metaphorical splendour and lustre, which give support to the crown and dignity, form a perfect contrast: whatsoever effect they give birth to, when viewed in the point of view in which they are ordinarily viewed, is, instead of being of use, purely mischievous.

10. But these things, do they not give support to government? and if government is an evil, is it not a necessary one?—Give support to government! Oh yes: that they do: and there’s the mischief of them. What we want is—that a good government should have support: and that a bad government should not have support—should fall to pieces for want of support. But what these things do is—giving support to all governments—to the worst as much as the best.

11. Apply this to the present case—to the chamber of peers: let the members of it conduct themselves in it ever so ill—oppose all measures beneficial to us all, as strenuously and perseveringly as they will,—the same support will these extrinsic decorations afford to it.

12. Viewed in their true point of view—understood in their literal sense—these same words lustre and splendour may be not altogether useless:—they are not altogether uninstructive. Of lustre and splendour taken in this sense, what is the effect? to dazzle the eyes of beholders: to cause them to see the objects in question confusedly and falsely: in a word, to put these same beholders into, and keep them in, a state of delusion.

13. Ancient history tells of an “ancient sage philosopher,” who took it into his head that he should, somehow or other, be the better off for being stark blind: and accordingly contrived to make himself so, by means of the splendour and lustre of a brass basin. Of this philosopher the philosophy will, without much difficulty, be pronounced “false philosophy;” and surely with as little difficulty may that philosophy be pronounced false, which prescribes the consigning human creatures by thousands to lingering death for the support of the lustre and splendour and dignity of coronets, not to speak of crowns.

14. So much for dignity, lustre, and splendour; or lustre, splendour, and dignity. Now for honour and glory.

As, on their part, dignity, lustre, and splendour, are, in our proverbial language, “birds of a feather,” and as such, “flock together,”—so on their part are honour and glory. These derive from their relation to war the chief part of their relative use: in them may be seen at once a seed and a fruit of it.

15. In honour, we in England possess four letters which, of themselves, will at any time afford a sufficient ground and justification for war: for war, with anybody or everybody. Such, at any rate, was the aphorism—pronounced once at least upon a time—oftener for aught I know—in our honourable House, by the then leader, and the now idol, of our Whigs. Of the state of things called war—which, being interpreted, is homicide, depredation, and destruction—human suffering produced in all manner of shapes upon the largest scale—of this so illustriously serviceable state of things, the efficient causes might, all but one, according to his principles, be suffered to remain without effects: not so, any the slightest wound received by honour.

16. Of this rhetoric, what is the correspondent logic? Answer—That whenever, and to whatever end of your own, and against whatsoever nation, you take a fancy to make war,—if, being a statesman, you condescend to plead a justification for it, you stand up, give the appropriate sound to the four letters h, o, n, and r, and your justification is made: always understood, that you must pronounce the word with a certain degree of loudness, and that, while you are pronouncing it, your cheeks must exhibit a certain degree of intumescence, and your eyes a certain degree of fierceness.

17. A justification made for war out of honour, is cheaper with us (you see) than with you. With us, four letters are (you see) sufficient: you cannot have one for less than six: witness h, o, n, e, u, r.

18. But, to peers and peerages, in what way is it (say you) that these words honour and glory have application? I answer—in this way:—Gods have their attributes: kings and peers theirs. Kings are “Gods with us”—their representatives and images upon earth. Peers are creatures of the crown—of the crowns of kings. Of their attributes I leave it to some future Blackstone to give a complete and correct list: all that, at this moment, I know about them is, that this of honour, or say honourableness, is one of them.

19. With us, the Chamber, or, as we say, House, in which our self-constituted and self-styled representatives of the people are seated, is styled Honourable: the House, that is to say, in plain language, the population of it taken in the aggregate. This House is simply Honourable, while that of the Lords is in like manner styled Right Honourable and Most Honourable:—one or both—I can’t at this moment tell which.

20. Within this same Right Honourable or Most Honourable House, are degrees of honour, rising one above another, in a scale; namely,—i. Baron and Baronies; ii. Viscounts and Viscounties; iii. Earls and Earldoms, these simply “Noble;” iv. Marquesses and Marquisates; v. Dukes and Dukedoms: these “Most Noble.” All these Peers.

21. But, added to these is a purificative and conservative mixture of another sort of Lords:—Lords, who are not Peers, but something better and still more respectable than Peers; namely,—i.Bishops, Right Reverend;ii.Archbishops, Most Reverend. These, to distinguish them from the sort of Lords who are Peers, are styled Lords Spiritual; to wit, in consideration of the spirit they are full of. Spirit meant originally gas: a kind of thing, one species of which is that which streets are lighted with: in their instance, it means a sacred sort. Sacred means the same as holy: so now you understand what they are. In contradistinction to them, the Lords who are Peers, and have for their contradistinction attributive the word Temporal, cannot but, in conformity to the established nomenclature, be acknowledged to be profane: sacred and holy are synonymous to spiritual—profane to temporal: sacred and profane are to each other as black and white: holy men are, somehow or other, if you will believe them, “in God;” and, being so in God, they contrive, somehow or other, to be Fathers; which is more than your Bishops can do—in a carnal sense at least—or your Archbishops either.

22. “All this,” I hear you saying, “may be very true; but what has it to do with second chambers?” My children, it has this to do: wherever there is either honour or dignity, there must be a support to it. Everybody says as much; nobody denies it. And this support must be made of money. And, for the extraction of the material, from the pockets of those by whose labour that which is given in exchange for it is produced, there must be a pretence; and the pretence is made by the manufacture of official situations: to which situations is attached money and money’s worth, flowing in through the medium of salaries, fees, and perquisites; and to the situations are annexed pensions of retreat.

23. So, likewise, pensions, or donations, or both, for widows and children. For, as each peer has his dignity to support, so has his widow hers: so have his children theirs: every one of these same children, his or hers: of his male children, the eldest has more dignity than any of the others have: the others have every one of them the same. And, in each case, what would become of all this dignity, if it was not for the support given to it by the money? It would, of course, drop down. And were it to drop down, what would become of government? ... ... ... But the catastrophe is too terrible to bear thinking of.

24. True it is—that, in the Anglo-American United States, no such extravasated remuneration has place. Yet there, a something called government is to be seen, if you look close to it. And, somehow or other, it stands upon its legs, though it has no such supports to it. But, that government, being a democratical one, is not (so our monarchists are always ready to assure us) worth looking at.

25. And forget not,—that this jargon about the necessity of honour and dignity, and lustre, and splendour, for the support of government,—and of money, extracted by depredation, for the support of honour and dignity, and lustre, and splendour,—is no joke. It is uttered in most perfect gravity and seriousness, with exemplary solemnity, in messages from the king, and in speeches in both Houses. Uttered as and for, a competent government justification, of taxation to any amount. And, to the quantity of money for which there may, on this score, be an undeniable demand, no limit is ever professed to be set: to the quantity provided for the defence of the country, always: to the quantity provided for the support of the otherwise helpless and doomed to death, always is a determinate limit applied: for, in both these cases, is reference made to need in a specific quantity, to which application of the supply is to be made: for such a number of mouths, such a number of pounds of money—and so forth: to the quantity provided for these supports, always a limit set: to the quantity provided for the support of dignity, never:—never—no never can there be enough of it.

26. And now, my children! now (I hope) you are satisfied: satisfied, I mean, with me, your metaphorical father: for, if you are satisfied with the state of things thus faithfully represented,—if you (I say) are satisfied with it, it is more than I can be with you. But I will not think thus meanly of you.

27. Nor is this all. The dignity, with its et cæteras, thus placed upon its support,—it is in the situation in question, with relation to the services attached to it in the character of duties, received as a substitute for, under the name of a surely presumptive efficient cause of, appropriate aptitude:—yes, of appropriate aptitude, in all its several branches, moral, intellectual, and active: branches, three or four, as you please; appropriate intellectual aptitude requiring, on some occasions, to be considered as combining appropriate knowledge and appropriate judgment.

28. How, then, stands the truth of the case? Is it—that, the more there is of this dignity, with its et cæteras, the more there is of this same perfect aptitude? Oh no: but, contrariwise, the less. For, as to appropriate moral aptitude, this is the fruit of self-denial, itself an irksome sort of operation: as to appropriate intellectual aptitude, and active aptitude:—these are the fruits of hard labour—another irksome sort of operation: and the quantity of them is naturally in proportion to the quantity of need; and, the less the need a man has of any irksome sort of operation, the less does he employ of it.

29. Of this same dignity, the use is, the procuring for the possessor of it, respect, deference, compliance with such demands as it pleases him to make,—compliance with his wish and desire, in so far as it is known, or can be guessed at: and, of all these good things, by means of which are produceable and produced all other sorts of good things—the more a man can have, without either of the above-mentioned irksome operations, without which appropriate aptitude is not to be had,—the less of it will he have need of; and accordingly, the less of it will he give himself.

30. Accordingly, if you would see that relative inaptitude which is correspondent and opposite to official appropriate aptitude,—if you want to see that same relative inaptitude,—or in one word, depravity, in its several gradations, look to the top of the scale: there you may see kings. Exactly as their power and dignity, is their depravity: so, mathematically speaking, less and less, as they have less and less of those same attributes.

31. To come down to Peers. So it will be with Peers. True it is—your Peers, if you continue to have any, will not be so bad as ours; for they will not have so much—they will not have near so much—power, along with their honour and dignity. They will not have the nomination of the self-constituted and self-styled representatives of the people: they will not be in the habit of having distant dependencies obtained and retained, for the sake of official situations established in them, for the purpose, and with the effect, of being filled by peers, or elder or younger sons of peers, for the profit of depredation, and pleasure of oppression, to be exercised by those same living receptacles of honour and dignity. The consequences of any such burthen would, in your part of the world, be, for some time, too bad for endurance; and therefore it would not, till after a considerable length of time, be endeavoured to be fastened on you. But, when all this is taken off, there is surely enough left, to prevent you from consenting to be loaded with any such incumbrance as it would load you with.

32. To come home to your Chamber of Peers.—Part and parcel of the matter of corruption would be, every atom of honour, every atom of dignity,—meaning always, factitious honour and factitious dignity, manufactured as above,—every spark of lustre, and every spark of splendour, possessed by the chamber of peers, or by any member of it, as such. Let it be called influence—influence simply, or legitimate influence—would it—now, at any rate,—be the less clearly seen to be the corruption that it is? Would not the speaking of it, as necessary, or even contributory, to the support of good government, be, by all lovers of good government, regarded as an endeavour to produce illusion?—maleficent illusion? These questions will assuredly be seen to furnish their own answer.

33. Well then: could the present, or any other chamber of peers, have place among you, without factitious honour and dignity? could it, without factitious honour and dignity, manufactured out of the sort of materials just mentioned? By any man, by whom it were proposed to be established, would it be proposed, or wished to be established and preserved, clear of all such factitious appendages?

And here you have the last of these strings of questions, which furnish their own answers.

34. Read, in this view, the works of intelligent travellers published of late years: written without view to the present question. Read, in particular, the account given by Dobell of that vast sample of the human species—the population of China. Inquire of all intelligent men, who have had occasion to be acquainted with the different orders of men in Greece: always you will find at the top, depravity; at the bottom, excellence: and how cheering (is it not?) the thought, that it is in the few that depravity has her seat; in the many—the vast many—excellence.

35. So much for Honour, Dignity, Glory, and their et cæteras. Now for influence. Influence is corruption under another name.

36. Of the terms dyslogistic, eulogistic, and neutral, the import has received explanation, and the use indication, elsewhere.*Corruption is dyslogistic: it gives expression to a sentiment of disapprobation, as being attributed to the idea of the operation, or the effect, designated by it. By the term influence, expression is given to the idea, without calling up, in conjunction with it, the sentiment: that sentiment, which, in so far as imbibed by the hearer or reader, would (it is apprehended) dispose him to endeavour to make alterations in the state of things under consideration.

37. Now, as to the employment given in the present case, to the word influence, in preference to, and, if possible, to the exclusion of, the word corruption. For the purpose of giving to the state of things, and to the institutions, on the continuance of which, his happiness is, in so great a degree, dependent, or is supposed by him so to be—a man will, of course, on all occasions that seem favourable, be doing whatsoever to him presents itself as contributing to that same purpose. Amongst other expedients, by giving expression to that sentiment of pleasure and approbation, with which the idea of it is accompanied in his own mind, and which it will be a gratification to him to communicate to other minds. But if, in speaking of the states of things and institutions in question, for the purpose of thus praising them, the word made use of by him on this occasion were the word corruption, it would not answer—it would thwart its purpose. The proposition, of which it makes part, would be a self-contradictory one: while endeavouring to defend the institutions in question, he would thus be passing condemnation on them.

38. Take for an example this aphorism—“The influence exercised by the crown is part and parcel of the constitution of the country.” The influence of the crown, without limitation or exception, as to the persons on whom exercised—whether Lords—Commons—or, of the body of the people such individuals as are electors of the members of the House of Commons. Over and over again, and without reserve, has this been heard, and without contradiction heard, in the House of Lords, and in the House of Commons; and to this word, influence, with as little reserve, has been prefixed the word legitimate. To the word influence, substitute now the word corruption. The legitimate corruption,—and say, employed by the crown—In either of those high places, has any such proposition, with this obnoxious word thus embodied in it, been ever heard? Assuredly not. To the tower! would be the cry, should any such heresy ever (which it is morally impossible it should) find utterance.

39. Alas! I have been forgetting all the while a sort of dignity, which (it will be said) cannot be truly styled factitious; forasmuch as, with indisputable truth, it may be styled natural dignity. This sort is—the genealogical sort:—the sort composed of the genus et proavos, et quæ non fecimus ipsi: composed of our relation to persons whom we did not make—of persons who made us. Well:—now that I have remembered it, all that I need say of it is—that whatever has been said of the factitious, such may, with equal truth, be said of this natural sort: and that, natural as it has become, let it have ever so long been so, it was, in the origin of it, factitious.

§ VIII.

Consequences of Supreme Judicial Authority in the same hands with the Legislative.

1. The existence of a second chamber still supposed, shall its legislative authority receive into combination with it, in the same hands, any judicial authority?—judicial authority in any shape? No, say I, of course: whatsoever be the duration of the authority, whether lifeholding and hereditary, or simply lifeholding: or, as in the case of the Senate of the Anglo-American Congress, for a determinate length of years.

2. Well: but the judiciary authority, which is at present possessed and exercised by the House of Peers—if not lodged in a second chamber of the legislature, what (say you) would you do without it? and, if you cannot do without it, where would you place it?

To these questions answers shall not be wanting. But first must come a brief explanation, on the subject of the judicial authority, taken in the aggregate.

3. Of a judicial authority, what is the use and need? Answer—To give execution and effect to the will, real or imagined, of the legislature: real, in the case of really existing law; imagined, in the case of the fiction called unwritten law.

4. And (say you) in the case of real law, why cannot the possessor or possessors of the legislative authority give respectively execution and effect to their own will? Answer—For want of time: the addition of the quantity of time necessary for such an additional eventual operation not being compatible with the nature of things: except in here and there an extraordinary individual instance of a sort of case, of which presently.

5. Suppose no such subsidiary authority as the judicial in existence, the only course left to the legislature would be the confining itself to the issuing of individual commands, applying to subject-matters of all sorts—to persons, things, and occurrences—individually considered: acting thus with a degree of minuteness, exceeding even that which has place in military, or even in domestic life. But, even where the supreme legislative authority is in a single pair of hands, this (you see) is not possible: much less where it stands divided among a multitude of hands.

6. The consequence is—the necessity of its applying itself to subject-matters of all sorts in groups; and of having at its command another authority, the function of which shall consist in making, in case of contestation, application of the so-declared will of the legislator to the individual subject-matter, of which these groups are respectively composed.

7. Thus, in cases in which contestation has place, or is expected to have place. In cases where no contestation is expected,—as in the several departments, of which the several ministers or ministerial bodies, termed in England boards, are respectively at the head,—the power exercised by these immediate subordinates of the supreme legislative authority, is styled administrative: in the cases in which, as above, contestation has already place, or is expected to take place, it is styled judicial.

8. In this latter case, in each individual instance, two sorts of questions are liable to have place,—namely, 1. That which is called the question of law; that is to say—the question whether the import ascribed to the terms of the portions of law appealed to by him, by whom application is made to the judge, for the sort of service rendered by him, by exercise given to his appropriate power,—be that which ought to be considered as expressive of the will entertained by the legislature on that behalf. 2. That which is called the question of fact—that is to say, the question whether the individual state of things alleged by him as constitutive of his title to that same service, really, on the occasion in question, at the time and place in question, had existence.*

§ IX.

Duration of its Authority—a further Objection to a Second Chamber.

1. After the objections from the before-mentioned sources, any additional objection from this one will (I should hope,) to most eyes, present itself as superfluous:—superfluous, the consideration—what duration had best be given to an authority which ought not to exist at all. Upon the whole, however, on this and other accounts together, a few short hints may, perhaps, be not altogether without their use. And if, in this case, of any use, they would be of still more use, as applied to the Senate, in the Congress of the Anglo-American United States.

2. In the case of the United States second chamber, the duration of authority (term of service is the phrase there) is six years—three times the duration of it in the first chamber. In your case, no duration do I find proposed, of any other length than that of each incumbent’s life.

3. Evils in this case behold the following:

i. How unapt soever, in any or all respects, a man may prove,—he cannot be got rid of.

ii. His continuance in authority being thus assured, proportionably increased is the quantity of the purchase-money which it may be deemed by the Corruptor-General worth his while to give for him.

iii. For the purpose of receiving the thus maximized quantity of the matter of corruption, a man of commanding talents may make display of them on the popular side, in the original view of being bought; and, immediately on being located turn to the left about, and station himself on the corruption side, there to be kept, by the force of a benefit, in any shape, resumable at pleasure.

iv. The increase, which the love and possession of power give to the strength of the disposition to maleficence, has been already noticed. Maximized will thus be the inclination, in conjunction with the power, to apply the authority to all manner of bad purposes.

So much for moral aptitude.

4. If, by the advocates for duration of authority in a second chamber longer than what has place in the first chamber, any endeavour is employed to induce a reason for it, experience is a word—benefit of experience a phrase—employed in giving expression to it.

5. But, against this reason, up rise the answers following:—

i. If, upon the whole, the thus maximized duration of authority is preponderantly beneficial, why not give it to the first chamber, as well as to the second? Your declared opinion finds itself contradicted by your practice.

6.—ii. Whatsoever be the net benefit from this source, it would be greater, if applied to the service of the first chamber, than if applied to that of the second: greater—in proportion to the superiority of the quantity of the effective power possessed by the first chamber, in comparison with that of the second.

7.—iii. In the case of each individual member—if, by him—and, through him, by the public—service, net benefit in any shape has been derived from this source—in this event, supposing the duration the short one given to it in the case of the first chamber, the electors will, at each fresh election, have it at their option to give continuance to the trust, or put an end to it: thus will they have it in their power to give, to these supposed beneficent qualifications, whatsoever quantity appears to them to be of good use: whereas, in the case of the long duration, this same duration will this same experience have, how bad soever be the use made of it.

8.—iv. If the duration be hereditary as well as for life, as in the case of a chamber of peers,—the persons to whom the experience is given, in this case, will be those, in whose instance the nature of their situation is such, as to leave to them, as hath already been observed, the least quantity possible of inducement to acquire the appropriate experience in question, or to make a good use of it, if acquired; they having, without labour, such a mass of power as well as of the matter of prosperity in other shapes, as by persons not in that situation is not attainable, but by and in proportion to the quantity of labour actually bestowed.

9.—v. How to combine the minimum of expense with the minimum of the power of abusing it—is a problem, which presents a demand for solution in the case of a single chamber, as well as on any greater number of chambers. For this problem I have found what appears to me a solution, and it is already under the public eye.* The arrangement proposed by it is such as preserves the thread of a measure from being so frequently broken as it is in England under the present practice: and will otherwise be in France, in so far as the initiative, recently given to members of the chamber as well as to the king, is put to use.

So much for appropriate moral aptitude, appropriate intellectual aptitude, and appropriate active aptitude—altogether.

§ X.

For the Location of the Supreme Judicial Authority, sole proper mode, what.

1. Well then,—for the exercise of the supreme judicial authority, the inaptitude of the chamber of peers, and of a second chamber in any other shape, being supposed demonstrated by the inaptitude of such chamber for existence,—what (it will naturally be asked of me) are the hands, which, for the exercise of that authority, you would recommend as the most proper ones?

2. I answer—General description of them, this—namely, those which—not being those of the supreme legislative authority—are those of an authority, as to the acts of which, assurance of their conformity to the will of the supreme legislative authority is most entire.

3. Particular description, this—namely, the hands those of a single judge—located by election in the way of ballot, in and by the chamber of deputies.

4. Next, as to reasons. As far as it goes, the reason, given in and by this general description, will (I hope) be satisfactory. It will not, however, be sufficient for the guidance of practice, without some arrangements of detail, respecting the proposed singleness of the judge, the powers requisite to be given to him, and the securities requisite to be provided against inaptitude in the character and conduct of this high functionary.

These arrangements, with their respective reasons, being given,—it will be the more clearly seen, that any other proposable mode of location is comparatively unapt, and why it is so.

5. Extraordinary cases excepted,—in which of necessity the supreme judicial authority must be exercised by the supreme legislature,—supreme judicatory let there be one, and but one; and that a single-seated one: judge, sitting in it, but one.

6. Against no alleged misdecision on his part, not charged to be intentional, let appeal be made.

7. Against alleged misdecision on his part, charged to be intentional and thence criminal, let there be appeal to the chamber of deputies.

8. Power to the chamber of deputies, to apply to the supreme judge, if deemed guilty of intentional misdecision, such punishment as it shall deem meet.

9. Power also to the chamber of deputies, to reverse, or in anyway vary, the decision of the judge:—but no otherwise than on condition of declaration made that he has been guilty of intentional misdecision, and punishment applied to him accordingly.

10. By appeal thus from the judge to the chamber, let not execution of the decision complained of be stayed.

11. But, in case of the judge’s being so convicted and punished, let satisfaction, in the shape of compensation, for the wrong done by him, be made to all parties wronged: made, that is to say, at the charge of the criminal judge, to the extent of his means; and, to the extent of any deficiency in such means, let the compensation be made at the charge of the public.

12. Note—that the only sort of wrong for which, in the shape of compensation, adequate satisfaction is not capable of being made to a man, is—that which consists in the applying to him, or to some person specially dear to him, the punishment of death. In this one circumstance may be seen a reason—and that of itself a sufficient one—for abrogating altogether that mode of punishment: namely, in the event of its being found injurious, the irreparability of the injury done by the infliction of it.

13. In the case of the acquittal of a judge thus charged with intentional misdecision, power to the chamber of deputies—to apply, to the accuser, punishment, in whatsoever shape and quantity it shall deem meet: compensation included, for the wrong done to the wrongfully-accused judge.

14. No such accusation to be received by the chamber, unless the accuser has previously delivered himself up to the president of the chamber: unless, for want of forthcomingness on the part of such accuser, a motion for that purpose shall have been made by a member, and acceded to by the chamber.

15. The accuser having in this case been interrogated by the chamber—either the accusation will be dismissed, and the accuser, as above, punished,—or, if it be retained, the chamber will exact such security as it shall deem meet, for its continuance on his part to the end of the suit, and for his subjection to punishment, in the event of the acquittal of the judge.

16. So much for arrangements: now for reasons. With the supreme legislative authority, the supreme judicial, in one case at least, must be united in the same hands. Why? Answer—Because if it were not, the so-called supreme authority would, in fact, become the supreme legislative: issuing, on every occasion, decrees and irreversible mandates at pleasure: the legislative authority having, by the supposition, no means of giving execution and effect to its enactments: in a word,—if the supreme judicial authority were not in this way subject to the supreme legislative, the so-called supreme legislative would be subject to the supreme judicial.

17. From the supreme judicial authority, to the supreme legislative, appeal none; except on the ground of a criminal exercise of the power of the supreme judicial authority. Why? Answer—i. Because, if, without this restriction, appeal were made to the supreme legislative,—this authority would be the supreme judicial likewise: in which case, the time, which—except in the extraordinary and indispensable case in question, should be exclusively devoted to the infinitely more important business of legislation,—would, to an incalculable amount, be taken from that business, and given to the less important business of judicature.

18.—ii. Because the business of judicature would, in this case, be taken from the tribunal the best adapted to it, and given to a tribunal the worst adapted to it: namely, a multitudinously-seated one. To such a degree divided, responsibility to public opinion would be annihilated.*

19. In case of criminality, as above, the supreme judge is made thus punishable. Why? Answer—

i. If he were not, he might set up his own authority over the so-called legislative, and thus become absolute: the above-mentioned destructive mixture of the legislative and judicial authority in the same hands being in this case effected.

20.—ii. Note, that—under such responsibility on the part of the judge, exercise made by him, of any act, likely to be deemed criminal by the legislature, and as such punished in the manner here proposed,—is likely to be extremely rare: so likely, that its never happening at all is perhaps more likely than its ever happening.

21.—iii. This, however, supposes publicity of the proceedings carried on by and before this judge. For, supposing them secret, criminality in any shape, on the part of a judge, beholding no authority over him other than that of the legislature, may be regarded as an ordinary occurrence. So long as any of the matter of corruption were in existence,—inducement, likely to be adequate, could never be wanting.

22. The appellant to the supreme legislative authority against the supreme judicial is subjected to the eventual sufferings above mentioned. Why? Answer—

i. In case of wrong done to him, no other remedy can he have at all: consequently none upon terms less advantageous than these.

23.—ii. No limits can be assigned to the sufferings he would stand exposed to by the correspondent wrongs, if he were without this remedy.

24.—iii. If the punishment were not thus secure, and the means of securing forthcomingness on his part, for the purpose of his being eventually subjected to it thus effectual,—every suitor, who beheld advantage for himself in making appeal, would, as at present, make it: and, when the benefit of the delay would pay for the expense, the appeal would be made—even under a certainty of ill—ultimate success in other respects.

25. In case the supreme judge is adjudged guilty, as above, compensation is proposed to be made to any such persons as by such his guilt have become sufferers. Why? Answer—Because this is what (by the supposition) justice demands: and, without any additional delay or expense, proof will have been made of it, for the purpose of his punishment.

26. To the party injured, compensation is proposed to be made, at the expense of the criminal judge. Why? Answer—

i. Because, as far as it goes, the burthen of compensation has the effect of punishment: and, in truth, more than the effect of punishment produced by any other disposal that can be made of the sum in question.†

27.—ii. Because a determinate fruit being thus indicated as derivable from prosecution,—the invitation held out to a party injured, and to all whom indignation at the thoughts of the injury has disposed to give him support, will be the more attractive.

28. To the magnitude of the punishment no limit is proposed to be set. Why? Answer,—Because, to the profit capable of being made, as above, by the crime, in the situation in question, no limit can be assigned: and, as often as the enjoyment reaped in all shapes together by a crime, is more than equivalent to the suffering produced by the prosecution and punishment of it, the so called punishment is a reward, by the amount of the difference.†

29. In default of sufficiency, in the pecuniary means of the judge, for the purpose of the compensation,—provision is proposed to be made for it at the charge of the public. Why? Answer—Because otherwise, adequate inducement to a party injured, to act his part towards the application of the remedy, might not have place.

30. So much for the arrangement proposed for a supreme judicatory, instead of the existing chamber of peers, or that of any other second chamber: and, moreover, for any other that is anywhere in use, or is capable of being proposed.

31. Now for the reasons why,—with the narrow and altogether indispensable exception above mentioned,—no apt supreme judicatory could have place, in the person or persons—either of the king alone, or of the chamber of deputies alone;—or of the king and the chamber of deputies sitting together;—or of the members of any tribunal, constituted by those two authorities acting to this purpose in conjunction.

32. To the king alone, this function not proposed to be allotted. Why? Answer—

i. Because, in that case, there would be, as above, absorption of a time which could not be spared from other business.

33.—ii. The king would thus be exposed to ill-will, at the hands of those to whom his decisions were unfavourable,—and of all persons connected with them, by the ties of party, or personal sympathy, or impelled in that same direction by previous antipathy towards him, or those on his side. In a word, he would be unpopularized; and, otherwise than by a revolution, with its evils, certain and probable, a king,—howsoever unpopularized, and how deservedly soever unpopularized—cannot, unless driven out by terror, be changed.

34.—iii. In the case even of a single suit, the subject-matter may be of any degree of importance: and the parties, in one way or other interested in it, may be in any degree numerous.

35.—iv. Take for instance a suit, whether criminal or civil, in which the liberty of the press is regarded as being at stake: or a criminal suit, in which the offence charged is an “offence affecting the exercise of sovereign power,”—rebellion.*

36.—v. The power of the chamber of deputies, and thence that of their constituents, would thus be reduced to nothing. It would have two powers superior to it. To the powers belonging to him as member of the supreme legislature—namely, the powers applying to sorts of cases, the king would add a veto applying to individual cases, as they came before him, in his quality of judge.

37.—vi. To the chamber of deputies alone, the power is not proposed to be given. Why? Answer—For the reasons that have just been given.

38.—vii. To the king and the chamber of deputies sitting in conjunction, the power is not proposed to be given. Why? Answer,—For the aggregate of the reasons applying to the two just-mentioned cases.

39. To a tribunal constituted by the king and the chamber of deputies acting for this purpose in conjunction, it is not proposed to give this power. Why? Answer—

i. Because the communication necessary could not have place, without an absorption of time, still greater than in any one of the above-mentioned cases.

ii. Because, to a greater or less extent, the other evil effects just mentioned would be likely to have place.

40.—iii. Because, of all good effects, shown to be likely to result from the herein-above proposed arrangements, there are not any, that would be likely to be produced, if at all, in so high a degree as by those same arrangements.

§ XI.

Consequences of Executive Authority in the same hands with the Supreme Legislative.

1. Why mention this? Only that it may be seen—that no question which borders on the present one, in such sort as to be likely to be suggested by it, has been overlooked. For, to the present question it does not present itself to me as appertaining. Nothing of this sort do I see—possessed, or proposed to be possessed, by your house of peers.

What it does propose is, however, a real demand for consideration: and into consideration it has been taken by me in another place.†

2. In the constitution of the Anglo-American United States, this combination actually has place: namely, in the second chamber of legislation—the Senate. In that one body,—the three authorities—the supreme legislature—a large portion of the executive—and the supreme judicature—in part or in whole, are all mixed.

3. I have it in contemplation—to transmit to our friends in that quarter my suggestions on that subject, in company with this. To you they may perhaps answer, in some sort, the purpose of elucidation.

4. Remains yet another mode of combination. Executive authority with judicial: legislative out of the question. Neither in the work just alluded to has that been altogether out of consideration: nor yet, however, has the subject been entirely exhausted.

5. Quodlibet cum quolibet—apply everything to everything. In this maxim may be seen a supplement to Bacon’sFiat Experimentum. Apply everything to everything: in this may be seen a receipt—for giving, to a stock of ideas, correctness as well as completeness. In chemistry, in particular, it is mainly by the application of it that such vast advances have been made by you.

But I am straying into the path of garrulity—a tempting and seducing path to old age. I correct myself, and stop.

§ XII.

Causes of the attachment to a Second Chamber—England—United States.

1. Well, but (say you) the notion of the usefulness of a second chamber in general—is little less than universal—has it then no foundation in truth? I answer, No. In what then? (say you.) I answer, in mere prejudice—authority-begotten and blind custom-begotten prejudice. Certain countries there were, in which things were found to go on better than elsewhere: and in the government of these countries there was a second chamber.

2. Good. But was this second chamber the cause of their doing so? A question this, which nobody ever thought of putting to himself. Efficient, uninfluencing, and obstructive circumstances—these are so many packets of fibres, into which the texture of the body politic, in every part of it, must be dissected. or no rational or effectual remedy can be applied to the disorders it is subjected to: and in comparison of the anatomy of the body natural, the anatomy of the body politic is still young. Corruption, you have just been seeing dissected: constitution lies now upon the table: a few touches of the scalpel must now be bestowed upon it.

3. Till, from the English form of government (or, as it is so improperly though generally called, English constitution)—till, from this stock a layer having been made, had been severed from the parent stock and taken root of itself (I mean, you see, the Anglo-American Union)—England was the most prosperous country in the known world: England was, of all the countries in the world, that, in which, in proportion to territory, the matter of wealth was most abundant, and the government in the smallest degree predatory and oppressive. This being the case,—in England the sovereign power had become lodged in a mixed body—composed of—a King,—a House of Representatives, in the choice of whom a more or less considerable portion of the people had some share,—and a House of Lords, the members of which were located in divers modes of location, agreeing in nothing but this—that neither the will of the subject many, nor consequently their interest as contradistinguished to that of the ruling few, had anything to do in the business.

4. Here, then, was the effect: now for what belongs to the cause. Look to the concomitant circumstances, as above, you will find, that it is not by, but in spite of, this same second chamber, that the prosperity was produced. Efficient muscular fibres in it you will find none; antagonizing and obstructive fibres in it may be seen in abundance. But away with these figures of speech: they are troublesome to manage; and have been worn to rags. Unhappily, there is no such thing as speaking—nor even as thinking—without such figures. Now to the point.

5. Directly or indirectly,—the rulers—of all the above denominations—had it in their power, severally or collectively, to reward, with good gifts, all such persons as should bring themselves, or be brought, to render to them, in any shape, acceptable service. Of all shapes in which service can clothe itself, laud is one of the cheapest to him by whom it is rendered: directly or indirectly,—as the matter of reward could be administered by them to trumpeters, so could the matter of punishment to gainsayers. For falsehood and misrepresentation, to the benefit of the ruling few, in how high a degree soever detrimental to the subject many,—reward there is—administered, or ready at all times to be administered, in abundance: of punishment not an atom: punishment being reserved for truth to the detriment of the ruling few, in how low a degree soever beneficial to the subject many.

6. Before the Revolution in 1688 (the short intervals that had place in the twelve years civil wars excepted,) the community was divided into two parties: on the one part, depredator-general and oppressor-general: on the other part, the plundered and oppressed: depredator-general and oppressor-general, the monarch: plundered and oppressed, all besides. Lords and Commons, and their protegés, being by this circumstance distinguished to their advantage from the rest,—namely, that there were amongst them those who, to the condition of plundered and oppressed, added that of plunderers and oppressors: as towards and under the monarch, sub-plunderers and sub-oppressors: as towards one another, co-plunderers and co-oppressors.

7. Came the Revolution—the glorious Revolution—of 1688, and the parties were changed. On the one part, co-plunderers and co-oppressors, King, Lords, and Commons, and their protegés: co-plundered and co-oppressed, all besides.

8. Here, then, was the Athanasian Creed carnalized and realized. Here was Trinity in Unity. The King excellent, the Lords excellent, the Commons excellent: and yet there were not three excellents, but one excellent.

Any other points of unity it were needless to enumerate; these being—all of them—even these three thousand of men, summed up in this one of excellence.

9. One only must be brought separately into view: it being the one that belongs more particularly to the present purpose: it is that of incomprehensibility. The King was incomprehensible, the Lords were incomprehensible, the Commons were incomprehensible: and yet there were not three incomprehensibles, but one incomprehensible.

10. A property, which, under any form of government but the democratical, is by all rulers desired to be found and preserved, and consequently, where not found, to be created—is blindness:—that property, which, in French, when considered as corporeal,—as having its seat in the body,—is called cécité; when considered as mental,—as having its seat in the mind,—is called aveuglement: in English, the word blindness serves for both purposes.

11. By blindness,—by whatsoever bandage kept over the eyes—by this state of the eyes, coupled with laud from lips and from hand with pen in it, much reward was to be got; from vision—distinct relative vision—nothing better than punishment. Discrimination imports relative vision: therefore in the laud so bestowed, no discrimination was to be employed.

12. Mental blindness—aveuglement—not being at this present writing the order of the day, the process of discrimination has here been ventured upon,—if without hope of reward, yet, although Lord Tenterden is at the head of the penal branch of the law, in the situation of Lord Chief Justice of the King’s Bench, and Sir James Scarlett in that of Attorney-General, without much fear of punishment.

13. Prism in hand, I have ventured to decompose this carnal Trinity. Rational prosperity being the effect in question, obstacle (I say) to it is the authority of King, Lords, and Commons; but, most powerful of all, that of these same Lords:—not however so much in their own right, as in their quality of makers and masters of the Commons: causes of that same prosperity, the operations of all such members of the public-opinion tribunal as, from time to time, have shown themselves more or less disposed to substitute—to a form of government which has for its object and end in view the preservation of the faculty and practice of depredation and oppression for the benefit of rulers, at the charge of subjects,—a form of government, which has for its end in view the creation and preservation of equal benefits, and, for that purpose, equal rights, to rulers and subjects; saving only—to rulers, those peculiar rights, of which powers are made, and without which they cannot be rulers.

14. By the explanation thus given of this same doctrine of incomprehensibleness and the cause of it, I hope I have rendered myself in some tolerable degree well comprehended.

15. In the bringing about the Revolution of 1688, Locke, as every one knows, had no small share. In those days, after the shock produced by the conflict between absolutism and radical reform, such was the shattered state of the public mind, nothing better than moderate reform could be looked for by his discerning eye. The people had been blinded, and were led blindfold, in a string, woven in the Westminster Hall manufactory, by order from King, Lords, and Commons, by their copartners and servants of all-work—the judges.

16. What the hatchet is to the Russian peasant, fiction is to the English lawyer—an instrument of all-work. Locke had been a pupil of that versatile genius—politician and lawyer—the Earl of Shaftesbury, Lord Chancellor. Seeing how things stood, he borrowed of them that same instrument of theirs, went to work with it, and chopt out the original compact. So doing, he had their assistance and co-operation for his support: without it, they perhaps would not have been willing to lend him their assistance: pretty constantly, they would not have known how.

17. Of the greatest-happiness principle, discerning as in so superior a degree he was, Locke had no clear view: the eyes of his mind had not, with any sufficient degree of steadiness, directed themselves to this quarter.

18. Witness his position—(call it axiom—call it definition—call it at any rate exposition)—out of which he thought might be made the foundation-stone of law—namely, “Where there is no property there is no injustice:” as if the effects of human conduct upon human happiness, and thence the direction most proper to be endeavoured to be given to it by human rulers, could be pointed out, by statements merely declaratory of the relation of the import of one word or phrase to that of another.

19. This same original compact—the compact between king and people—was a fabulous one* —the supervening compact—the compact of 1688—the compact between King, Lords, and Commons, was but too real a one.

20. Bringing into hotch-pot (so says the old law French word)—pic-nic fashion (so says the modern English word)—our respective shares of power,—quoth each to the others, We will make a feast for ourselves—an all-the-year-round Lord Mayor’s feast: at the expense of mob, alias rabble, alias populace, alias lower orders, by whose labours the materials of it will be, as they have been, produced.

21. For the music of the feast,—chorus, set by Blackstone: his substitute to Hallelujah, his Esto Perpetua! Finale, by his fellow-worshipper of Church and King—Lord Eldon—one cheer more!

22. So much for Glorious Revolution: and the authority-begotten prejudice planted by it, for the support of a Second Chamber—in France, a House of Peers; in England, a House of Lords. Exit Misrevolution; as we say, misfortune—misdecision; alias misled revolution, as per Dean Swift, when he sung—The longitude miss’d on, By wicked Will Whiston: alias Miss, or, as you say, Mademoiselle Revolution, christened by her godfathers and godmothers, Gloriosa: namesake to Donna Maria da Gloria.

23. Enter now American Emancipation. From 1688 to 1773, or thereabouts, the occupation of plunderage and oppression went on everywhere. In both continents,—in the American, as well as in the European,—men continued to see themselves skinned, being (like the cook’s eel’s) used to it. But, in the American, men were not quite so much used to it as in the European.

24. In matters of detail,—a form they were still more used to,—was a much better form,—a form, in the making of which the disdainful negligence of their rulers in the mother-country had suffered them to have a hand.

25. When, on the occasion of the rupture, they had a form of government to settle,—they saw considerable ground for thinking well of a second chamber, though it was composed of a hereditary and haughty aristocracy, and no determinable ground for thinking ill of it. In whatsoever they were suffering, or had at any time suffered, the king’s was the hand that had been most visible, not to say alone visible. With him had everything, and consequently everything bad, originated: with the House of Lords, nothing. Still was the government from which their ancestors had taken refuge in their wilderness, less bad than any which they had been accustomed to see elsewhere: and it was to a House of Lords, without a House of Commons (?) that England, as they saw, stood indebted for the features by which her form of government stood thus advantageously distinguished: for it was to a House of Lords, and without a House of Commons, that she stood indebted for Magna Charta: it was to Simon de Montfort—a member of the House of Lords, that she stood indebted for the House of Commons itself. The House of Lords they saw approved by Blackstone. The House of Lords they saw admired by Blackstone: and, for constitutional legislation, they had in view no better approved guidance than that which was afforded them by the anility and servility of that English lawyer.

26. In the remedies they employed, no great comprehensiveness, in their situation, seems discernible. Greater was not to be expected. In the order indicated by the severity of the smart, the thorns they suffered by were plucked out, as was natural, one after another. Neither to their sense, nor to their imagination, had the second chamber presented itself, as the source of any of their sufferings: to exempt themselves from all such uneasiness, they had but to constitute themselves creators of the quasi-Lords, of which the population of their several second chambers was composed.

27. No wonder that, without troubling themselves to inquire into the particular use of it, they should continue on foot every institution from which they felt not any particular annoyance. The form of government, the capital part of which they had shaken off—this form of government, with all its defects, was still less bad than any other that had ever presented itself to their view. Of their place-men, those who had, from time to time, been sent to help to govern them from the mother-country, had, of course, been at all times loud in their laud of it. Their lawyers were the issue in tail, male and female, of the lawyers of the mother-country—hereditary possessors of their sinister interest, and interest-begotten prejudice. The people’s at once blind and treacherous guides, saw sufficient reason to be pleased with whatsoever, in a more particular manner, regarded themselves,—and thence with the whole matter of it in a lump, after the particular parts, from which they had been sufferers, had been got rid of.

28. Under these circumstances, no wonder—that, the particular exceptions always excepted, one proposition was—generally, not to say universally regarded as an axiom,—Whatever is, is right; or, in Blackstone’s language,—Everything is as it should be. This in English: of which the French version is—in the language of the financier of the ancien regime—the question, “Pourquoi innover? Est-ce que nous ne sommes pas bien?”—a question, which contained in it its own answer,—an answer, the truth of which was altogether beyond dispute.

§ XIII.

Conclusion—Let not Democracy be a Bugbear.

1. Fellow-citizens! Anarchy is one bugbear; Democracy, another. Separately, or like dogs coupled, they are sent forth by periodicals—ministerial and absolutist—to strike terror into weak minds, on both sides of the water—yours and ours: to frighten men out of their wits, and prevent them from forming any sound judgment on the all-important subjects which you have been seeing handled.

2. “Democracy has anarchy for its certain consequence;” or—“Wherever democracy has place, anarchy has place;” or—“Democracy and anarchy are synonymous terms:” a specimen this of the twaddle, that may be seen employed for this purpose. Twaddle has not long been in our colloquial language: it will not be found in any of your dictionaries of it: anility may perhaps serve to express in both languages the idea it calls up.

3. Unhappily—foreign as it is to reason—hostile as it is to reason—it is not the less effective. Fear is a passion, by which judgment is laid prostrate and carried away captive.

4. Such being the power of this same bugbear,—a few words of exorcism to drive away, from as many of their seats as possible, all such unclean spirits, may perhaps be not altogether without their use.

5. Before any such connexion between democracy and anarchy can have been really believed by a man to have place, he must have been already blind,—or by a bandage of effectual tightness have prepared himself for the not seeing it: he must have been already deaf, or by an effectual obturative prepared himself for the not hearing it. In him may be seen a patient, labouring under a sort of monomania. Suppose, then, some charitable practitioner disposed to attempt relief, how should he go about it? In some such way, perhaps, as this. Two words—Democracy and Anarchy—produced the disease: one other word—America—may take the lead in the cure. Applying, then, to one of the ears of the patient a hearing trumpet, suppose his Æsculapius to take in hand a speaking trumpet, and speak thus:—“America, sir!—did you ever hear of such a quarter of the globe as America?—did you ever see it laid down in a map?” If yes, “did you ever hear of a part of it styled the territory of the United States?—did you ever see it marked down in that same map?” If yes, “did you ever hear of there being six-and-twenty of them, more or less?” If yes, “did you ever hear of their having, each of them, a constitution; and all of them together, an all-comprehensive one, regulating the affairs common to them all: to each of these constitutions expression being given in a determinate assemblage of words, printed and published for the information of all?” If yes, “did you ever hear said of any one of them, that the enactments of which it is composed experience less punctual obedience than do the laws of any other government that can be mentioned?” If not, “is that state of things anarchy?—is it compatible with the existence of anarchy?—of anarchy, throughout the whole of one and the same territory?”

6. This same word anarchy—has it in your mind, sir, any intelligible meaning, other than the non-possession of security for those good things, on the possession whereof life, and all that is worth having in it, depends:—security as to person—security for property, power, reputation, and condition in life? For which of these possessions, then, is security less certain there than under any government under which it is most? [meaning always in those parts of the respective territories, in which the population is dense enough to admit of such security.]

7. Anarchy indeed! If by anarchy is meant the want of security in all or in any one of those shapes,—have you any curiosity to see an instance of a country in which it has place? If yes, what think you of England? Do you want to see a word or a phrase synonymous to anarchy? What say you to matchless constitution? Matchless constitution! what is it but a mere fiction? Can you, sir, find anywhere any determinate form of words in and by which it stands expressed? Anarchy? have you any wish to see a definition, or a true description of it? What think you of this? Anarchy is a state of things, in which, over the greatest part of the field of law—over all that part that is governed by what is called common law, in contradistinction to statute law—the existence of law is a mere fiction: in which, what there is of real law is, to all men but a few, unknowable: so much so, as to be incapable of serving them as a guide for their conduct: and in which what is called justice is—to all but a few (and those too plundered by it) inaccessible? in which, according to the confession of appropriately learned and officially commissioned men, there is not in the whole territory a foot of land, the title to which is secure.

8. Well then, my fellow-citizens of France! Well then, my fellow-citizens of England! My fellow-citizens of the civilized world! My fellow-citizens of future ages! If democracy, instead of being the same thing with anarchy, is really a better form of government than any which is not democracy—better than an absolute monarchy, an absolute aristocracy, or an aristocracy-ridden monarchy,—what reason is there, why I should not hold the difference up to view? If no use can be found for a house of peers, why should I not say so? If no use can be found for any second chamber, or any sovereign governing body, other than a set of men chosen and commissioned by the people at large—why should I not say so? If no use can be found for any such functionary as a . . . . as a . . . . king—(there—the word is written, and the world is not yet come to an end)—why should I not say so? If king and second chamber are—both of them—worse than useless—why should I not say so? If there be any use in them, or either of them, let him who thinks there is, and says there is, show it.

9. When I set pen to paper, I did not look to say all this:—I did not look to go so far: but, as the consideration and the argument proceeded, I found myself led on... ...and on... ....till I came at last to this point. In saying what I have said—have I said anything that is not true? Let it be shown that it is not—and I myself will confess that it is not. Have I said anything that is mischievous, or likely to become mischievous? Let it be shown in what precise way it is likely to be mischievous:—by whom and how it is likely to be made so. Let it be shown—how, of anything that is true on the subject of government, the knowledge can be mischievous.

10. Let this be shown—and I will take a lesson from Fenelon; in the face of the public, pass condemnation on what I have been writing, and recommend it to the flames.

Fellow-citizens of France!

11. At this present writing, we in England are sharers in one part of your good fortune. The king we have in England is really what his father was said to be—the best of kings:—the best of the kings we ever had, or are likely ever to have: such at least is, in all sincerity, my notion of him. How cheering it is to me to be able to say so! All blessings be on his head! Such is my acknowledgment. But, by this momentary piece of good fortune, how can my notion of kingship, in general, be a whit altered?

12. As to the quantity of suffering which it would take to pass from monarchy to democracy, this is what I am not competent to appreciate. It will depend upon the circumstances of the several states.

13. Note well—it is for myself alone that I am thus speaking. If I am a criminal, I have no accomplice. If I shall be found to have been doing good, it being done thus openly, it will not have been, as the poet phrases it, “done by stealth;” nor will there be any call for “blushes:” for I shall not “find it fame.”

With my never-departed-from simplicity and sincerity,—I have at length said my say:—and so—for this time—fellow-citizens, of all places and all times—farewell!

PAPERS RELATIVE TO CODIFICATION AND PUBLIC INSTRUCTION:

INCLUDING CORRESPONDENCE WITH THE RUSSIAN EMPEROR, AND DIVERS CONSTITUTED AUTHORITIES IN THE AMERICAN UNITED STATES.

published by JEREMY BENTHAM.

[* ]31 C. II. c. 2, § 12.

[† ]To the applicability of the habeas corpus act to the present case, the words “sent prisoner,” “such imprisonment,” and “being so imprisoned,” furnish an objection, which it is easy enough to see, and, from the other words of the act, not very difficult to refute. The discussion has been drawn out at length, but would be too long for the present purpose.

[‡ ]§ 13.

[∥ ]§ 14.

[* ]Inst. 46, 589.

[† ]Inst. 46.

[‡ ]Ibid.

[∥ ]II. Inst. 47.

[§ ]Ibid.

[¶ ]II. Inst. 589.

[* ]II. Inst. 53.

[† ]“Every restraint of the liberty of a freeman” (says the Abridgment of Chief Baron Comyns) “will be an imprisonment,”—“though it be in the high street, or elsewhere, and he be not put into any prison or house.” Besides the authority of Lord Coke, as above, he quotes two others (Cro. Car. 210; per Thorpe: Fitzh. Bar. 310.) I have them not at hand, nor is it material. Comyns is a channel that adds to the authority of the original source, instead of weakening it. And (what, if there could be a doubt, would render his interpretation a still more apposite one than any that could have been given by Lord Coke) Comyns wrote after the Habeas Corpus act.

They would both of them have expressed themselves more fully, though scarcely more intelligibly, if they had said—Every restraint of the liberty of locomotion, will be an imprisonment: every restraint upon the liberty of locomotion, on the part of a freeman, i. e. of a man free from such restraint by law, will be an act of false imprisonment.

[‡ ]“The Lieutenant-governor, immediately after the loss of the Sirius, called a council of all the naval and marine officers in the settlement, when it was unanimously determined that martial law should be proclaimed; that all private stock, poultry excepted, should be considered as the property of the state; that justice should be administered by a court-martial to be composed of seven officers, four of whom were to concur in a sentence of death . . . . The day following, the troops, seamen, and convicts, being assembled, these resolutions were publicly read, and the whole confirmed their engagement of abiding by them, by passing under the king’s colour, which was displayed on the occasion.” Collins, I. 104.

[∥ ]Charters had been obtained, as above, and in a certain degree acted upon; but any settlement, understood to be a permanent one, had scarce as yet been made.

[§ ]In a passage in the third Institute, written without mention of the petition of right, and therefore it may be presumed before the passing of it, “If a lieutenant,” says Lord Coke, “or other that hath commission of martial authority, in time of peace, hang, or otherwise execute, any man by colour of martial law, this is murder; for this is against Magna Charta, cap. 39. . . and here the law implieth malice.” The law and Lord Coke may imply malice as they please: in a case such as that before us, God forbid I should be malicious enough to imply it!

[* ]1 W. III. Sess. 2, c. 2.

[† ]Supra, § 12.

[‡ ]Coll. I. p. 7.

[* ]Coll. I. 450.

[† ]Ib. 300, 471, 482.

[‡ ]Coll. II. 41, 214, 283, 297.

[∥ ]The reasonableness of the obligation, supposing the imposition of it had been guarded from abuse by proper checks, and warranted by law, can never amount to a justification of such an act of coercion, limited as it was by no such checks, and sanctioned by no such warrant. And whence came the pretence for imposing it? From the very act of those who, in bringing forward any such plea, must take advantage of their own wrong, ere they could avail themselves of it. By that conjugal affection, by which these poor females were in a manner compelled to avail themselves of the means afforded them for sharing in the exile of their husbands, they were enticed into this cage; and, out of the physical bar, which there opposed itself to the return of the females, a legal bar was thus constructed, for preventing the return of both sexes, males as well as females.

[§ ]The most striking, of the few instances of inordinate punishment that could have been alluded to in this article of the bill of rights, was the whipping (certainly a most severe one) of Titus Oates. But the crime for which Oates thus suffered was but one, in a system of murders of a most terrific and atrocious complexion,—murder by the hand of justice, though left out of that denomination in the early and dark ages of our law. It would have required the united enormities of a dozen or a score of the most guilty among the colonists of New South Wales, to make up a mass of guilt equal to that which issued from this one murderous tongue.

In point of illegality, the utmost that can be alleged, against the penal inflictions thus condemned by the Bill of Rights, is an excess—on the side of severity indeed, but in the exercise of a power plainly discretionary, and having by law no specific limits: in the case of the modern system of illegal punishments, the legal portion had in every instance been marked out by the clearest limits: and it is by the palpable transgression of these limits, and by a course of contempt, as direct and pointed as it is possible to manifest, towards the repeatedly declared will of the supreme power by which these limits had been marked out, that the enormities, thus censured by the ancient constitution, have been committed in these our days.

In point of multitude of transgressions, for every instance of punishment, in respect of which illegality could thus have been imputed to the penal system of that time, a hundred at least might be found, of the more cruel and more palpably illegal masses of punishment, with which the administration of penal justice has thus been stained.

[* ]2d September 1800; printed by House of Commons. Order dated 18th December 1800.

[† ]Report of commissioners, dated 1st November 1800; printed as above.

[‡ ]Parliamentary Register, 22d July 1800.

[∥ ]Without a thought of any application to existing circumstances, I happened but now to open the reign of Charles I., in Hume. If prejudices of any kind be deemed imputable to that prince of historians, they will hardly be of that cast, which would dispose a man to exaggerate the mischief resulting from a transgression of the limits prescribed by the constitution to the power of the crown. Whether to that dispassionate, acute, and comprehensive mind, the wounds given to the constitution on the ground of the penal colony would have presented themselves as matters of indifference—as incidents in which the body of the people have no concern—is a question, the answer to which may be read, I should suppose, without much difficulty, in the following passages:—

Vol. VI., 8vo, p. 316, anno 1637. Speaking of ship-money, “What security,” say the arguments which he exhibits as conclusive, “what security against the further extension of this claim? . . . Wherever any difficulty shall occur, the administration, instead of endeavouring to elude or overcome it by gentle and prudent measures, will instantly represent it as a reason for infringing all ancient laws and institutions: and if such maxims and such practices prevail, what has become of national liberty? What authority is left to the great charter, to the statutes, and to that very petition of right, which in the present reign had been so solemnly enacted by the concurrence of the whole legislature?” So far Hume. The breach of those two constitutional safeguards constituted in those days, according to the historian, the superlative of tyranny. The Habeas Corpus act and the Bill of Rights have since been added. To triumph over those more ancient laws, the violation of which cost Charles the First his crown and life, was not enough: the violation of the Habeas Corpus act, and the Bill of Rights—a course of systematic violation persevered in for fourteen years—has accordingly been added to the triumphs of ministers in these our times.

Along with those two fundamental laws, other “statutes” are mentioned by the historian in general terms: and, as an aggravation of the tyranny, the then present reign is noted as the period that gave birth to the Petition of Right, one of those two fundamental laws. Statutes of inferior account, in crowds, contribute to swell the triumph obtained over law (with grief I say it) in the now present reign: and among them the several transportation acts, to which, in numbers too great for reference, this same reign has been giving birth.

Ib. p. 314, anno 1637.—“It was urged,” . . . continues the historian, “that the plea of necessity was in vain introduced into a trial at law; since it was of the nature of necessity to abolish all law. . . .” p. 315. “And as to the pretension that the king is sole judge of the necessity, what is this but to subject all the privileges of the nation to his arbitrary will and pleasure? To expect that the public will be convinced by such reasoning, must aggravate the general indignation, by adding, to violence against men’s persons, and their property, so cruel a mockery of their understanding.”

Ib. p. 421, anno 1641.—“In those days,” observes the historian, “the parliament thought”—and according to him—“justly thought that the king was too eminent a magistrate to be trusted with discretionary power, which he might so easily turn to the destruction of liberty. And in the event it has hitherto been found, that, though some sensible inconveniences arise from the maxim of adhering strictly to law, yet the advantages overbalance them, and should render the English grateful to the memory of their ancestors, who, after repeated contests, at last established that noble, though dangerous, principle.” Established it? So they thought (it seems) in their times: so Hume thought (it seems) in his time. In these our times, does that valuable principle remain established? or, after having been overthrown and trampled upon for these fourteen years, is it now finally to be abandoned, and to remain lifeless and extinct for ever?

In one point, indeed, at least according to the view given of it by this historian, the parallel would be found to fail. “The imposition of ship-money, independent of the consequences,” (viz. the anti-constitutional consequences above spoken of) “was a great and evident advantage to the public,” viz. “by the judicious use which the king made of the money levied by that expedient.”

Ib. p. 319, anno 1637.—So far as to the unconstitutional impost of that day. As to the anti-constitutional system of the present times, what degree of “judiciousness” there was, either in the design of it or in the “use” made of it, may be seen in the Letters to Lord Pelham, by any man when conscience will permit him to look the subject in the face.

Ib. p. 360, anno 1640.—“The lawyers had declared, that martial law would not be exercised, except in the presence of the enemy; and because it had been found necessary to execute a mutineer, the generals thought it advisable, for their own safety, to apply for a pardon from the crown.”—So much greater was the respect paid to the constitution by the king’s servants—Strafford of the number—in those days, than in these. See above.

Ib. p. 319, anno 1587.—The cause of the unfortunate pertinacity on the part of the misguided king, and the deceitful ground on which it rested, are thus delineated. “Though it was justly apprehended, that such precedents, if patiently submitted to, would end . . . . in the establishment of arbitrary authority; Charles dreaded no opposition from the people, who are not commonly much affected with consequences, and require some striking motive to engage them in a resistance to established government.”

Such at that time had been the reliance, but now follows the result.

Ib. p. 317, anno 1637.—“Hampden, however,” observes the historian, “obtained by the trial the end for which he had so generously sacrificed his safety and his quiet: the people were roused from their lethargy, and became sensible of the danger to which their liberties were exposed. Then national questions were canvassed in every company; and the more they were examined, the more evidently did it appear to many, that liberty was totally subverted . . . slavish principles, they said, concur with illegal practices; . . . and the privileges of the nation, transmitted through so many ages, secured by so many laws, and purchased by the blood of so many heroes and patriots, now lie prostrate at the feet of the monarch. What though public peace and national industry increased the commerce and opulence of the kingdom? This advantage was temporary, and due alone, not to any encouragement given by the crown, but to the spirit of the English, the remains of their ancient freedom. What though the personal character of the king, amidst all his misguided counsels, might merit indulgence, or even praise? He was but one man; and the privileges of the people, the inheritance of millions, were too valuable to be sacrificed to his prejudices and mistakes.”

Ib. p. 375, anno 1640.—The jealousy of the people was roused; “and, agreeably to the spirit of free governments, no less indignation was excited by the view of a violated constitution, than by the ravages of the most enormous tyranny.” Such was the language—such the spirit—of the people of that day: such their language and their spirit, when both as yet were temperate, and had not burst forth into the wild explosions that ensued. In the case of New South Wales, both provocations—the “violated constitution,” and the “enormous tyranny”—go hand in hand: the tyranny, the end; the violation of the constitution, the means. What will now be the spirit of a British parliament? what will now be the spirit of the British people? It remains to be seen in what degree, if in any, the people of this day retain the virtues of their ancestors.

They must be degenerate indeed, if they are to be lulled into any such persuasion, as that the constitution will be capable of retaining for their benefit its protecting force, after it has been made apparent, that, with ultimate impunity, it may thus be trampled upon in the most vital parts of it, for such a course of years.

[* ]In this Title and Title II. the passages in italics point out the principal differences between this Draught and that of the Committee of the National Assembly of France, delivered in 21st December 1789. In the other Titles, the difference being total, italics would have been of no use. [Although a great part of this Draught is repeated, for comparison with that of the Committee of the Assembly, and for comment, yet as a considerable portion (Titles from 4 to 10 inclusive, 14 and 15) is not repeated, and there are other variations, it is thought best to reprint the draught at length, as first published.]

[* ]The difficulty of deciding between Parish Courts and Canton Courts, and between the adoption and rejection of the Department Courts, necessitated, in some parts of this draught, a latitude of expression, and thence a sort of obscurity, which would not otherwise have had existence. At a period, too late for the requisite alterations, I am become clear in my own mind against the Department Courts, and the question, as between Parish and Canton Courts, depends upon local considerations, not within my reach.

[a ]{ Purs. Gen. Pursuer-General.

{ Def. Gen. Defender-General.

[b ]{ Purs. G. Pursuer-Generals.

{ Def. G. Defender-Generals.

[* ]With the variations indicated by the ensuing notes, the contents of this will serve for Tit. XI. Of Pursuer-Generals, and Tit. XII. Of Defender-Generals.

[c ]This article is copied from Tit. IV. Art. V. of the Committee’s draught, relative to the District Courts. The specification I have subjoined seems requisite, to prevent uncertainty.

[d ]{ Purs. G. Office of Pursuer-General.

{ Def. G. Office of Defender-General.

[b ]{ Purs. G. Pursuer-Generals.

{ Def. G. Defender-Generals.

[a ]{ Purs. G. Pursuer-general.

{ Def. G. Defender-General.

[e ]Purs. G. and Def. G. Omit this article.

[f ]Purs. G. and Def. G. Authority.

[g ]Purs. Gen. and Def. Gen. To this article substitute—Acceptance of the office of Pursuer [or Defender] General at any court, vacates every other; and acceptance of any other office, vacates that of Pursuer [or Defender] General. Nor shall a Pursuer [or Defender] General exercise the profession of notary, advocate, or attorney. This extends to Pursuer [or Defender] Generals and Deputes permanent.

[h ]Purs. Gen. and Def. Gen. Omit this clause.

[a ]{ Purs. Gen. Pursuer-General.

{ Def. Gen. Defender-General.

[i ]{ Purs.G. Seat of the Pursuer-General.

{ Def. G. Seat of the Defender-General.

[k ]Purs. G. Pursuer-General of an immediate Court. Def. G. Defender-General of an immediate Court.

[a ]{ Purs. G. Pursuer-General.

{ Def. G. Defender-General.

[l ]{ Purs. G. Pursuer-General’s.

{ Def. G. Defender-General’s.

[b ]{ Purs. G. Pursuer-Generals.

{ Def. G. Defender-Generals.

[m ]Purs. G. and Def. G. For this clause substitute the three clauses inserted under Tit. XI. Art. VII. VIII. IX.

[n ]Purs. G. and Def. G. Insert—seek to.

[o ]Purs. G. and Def. G. Insert—in as far as appertains to my office.

[p ]Purs. G. and Def. G. Insert—the reclaiming.

[q ]Purs. G. and Def. G. The Judge.

[a ]{ Purs. G. Pursuer-General.

{ Def. G. Defender-General.

[b ]{ Purs. G. Pursuer-General’s.

{ Def. G. Defender-General’s.

[f ]Purs. G. and Def. G. Authority.

[a ]{ Purs. G. Pursuer-General.

{ Def. G. Defender-General.

[b ]{ Purs. G. Pursuer-Generals.

{ Def. G. Defender-Generals.

[r ]Purs. G. and Def. G. each person.

[s ]Purs. G. and Def. G. Proceedings.

[t ]A full definition of the expression, evil conscience, [mauvaise foi, mala fides] is absolutely necessary: but its place is in the Penal Code.

[* ]A full catalogue of these precautionary expedients belongs to the Code of Procedure.

When a cause is already commenced before a competent court, the order or warrant of the judge of that court will serve to compel the assistance of all foreign judges, in virtue of Art. XVII.

[* ]This alludes to the appeal a nimiâ, or ab incongruâ.

[u ]Def. G. Omit this paragraph.

[v ]Def. G. Defendant.

[v ]Def. G. Defendant.

[w ]Def. G. Defender-General.

[x ]Def. G. become Pursuer.

[y ]Def. G. Pursuer-General.

[* ]This Title belongs properly to the Code of Procedure. A general sketch of the contents is given here, to serve as an object of comparison with the article of the Committee’s Draught, [TIT. I. Art. 2.] which touches upon the topic of publicity, and that part which concerns the establishment of family-tribunals [TIT. IX. Art. 11, 12, 13, and 14;] an establishment, the design of which, it is concerved, would be better answered by a modification thus given to the proceedings of the ordinary courts.

[* ]Whether my draught, had it come first, would have included under this head all the topics which have been embraced by the committee’s draught, was not worth inquiry. Treading in their steps, I have made a point of exhibiting a succedaneum to everything in their plan that seemed susceptible of amendment.

The following short analysis of the contents of their draught will serve to show, at the same time, the arrangement I should have preferred.

The four first articles have for their subject, the source from whence judicial authority is henceforward to be derived: namely, a joint choice to be made by the body of the people and the king, not by a buyer and seller, as under the ancient system of venality.

The seventh, eighth, and ninth articles, are occupied in setting limits to the powers which in future are to be regarded as belonging to the judicial branch of government: as is the tenth, in establishing the independence of some of the classes of persons to whom those powers are to be entrusted, in as far as independence consists in the not being removable, except in the way of punishment.

In articles 5 and 12, is contained the first provision of any efficacy that is to be found, perhaps, in any European code, for letting the poor, that is, the bulk of the community, into a share of the protection afforded by the law; to wit, by abolishing court-fees and law-taxes, and admitting every man to plead in his own cause.

Articles 13, 14, 15, and 16, are employed in taking care that that share shall be an equal one; by the abolition of those iniquitous privileges, which gave to certain classes advantages over others, with regard to the facility of obtaining justice.

Article 11 has for its subject, the publicity of law proceedings, the surest and indispensable safeguard of all justice.

The two last articles, 17 and 18, are resolutions relative to business extraneous to the subject of this draught; namely, the establishment of a code of procedure in civil causes, and of a penal code.

Articles 2 and 3 are also resolutions rather than laws; the contents being re-enacted in detail, and superseded under subsequent heads. Many, if not most of the others, may perhaps be found in the same case. Resolutions should be marked as such, and collected together in the front of the body of laws to which they relate. They are a sort of scaffolding, which is of no use when the building is up, and ought not to remain mixed with it.

Source of judicial power, limits of judicial power, justice to everybody, and that equal justice: such are in brief the topics touched upon in this title.

At so small an expense of paper, seldom, if ever, have such large advances been made towards the point of perfection in any public line. This tribute of applause, suggested by a general view, could not in justice be withheld: what particular remarks I may have occasion to present, will wear a different complexion. Unhappily, where legislations the subject, commendation is waste paper: it is only correction that can be of use.

[* ]Decrees of August 1789, and February 1790.

[* ]

• 1. The district court.
• 2. The district court of administration and revenue.
• 3. The department court.
• 4. The superior court.
• 5. The supreme court of revision.

[† ]

• 1. The canton court.
• 2. The reconciliation office of the district.
• 3. The court of the judges of trade.
• 4. The court of police formed by the municipal councils in towns.

[* ]Courts-martial, ecclesiastical courts, tribunals, should there be any, on board of private ships at sea, and legalized assemblies, so far as concerns the preserving good order in the assembly.

[† ]See further on, a fuller catalogue of these courts.

[* ]In considering the necessity of advice as resulting from the complication of the system of tribunals, I speak with reference to the current systems of procedure, and such as the plan of the committee seems to promise. According to mine, even this cause, powerful as it is, could not produce any such necessity. The suitor having a right to go into any court, and claim the attention of the judge, the first moment he sees him unoccupied, to his demand, whatever it was, and to the facts, (whatever they were) on which he grounded it it, would lie upon the judge to tell him whether it had any foundation in law; if so, in what part of the law, and to what other judge, if not to himself, it belonged to make it good.

[* ]M. Claviere, in a late publication, makes the average expenditure of an individual in France, rich and poor taken together, 146 livres a-year.

[† ]Perhaps this should be 10,000 livres.—Ed.

[* ]Splitting the Aula Regis into the King’s Bench, Common Pleas, Exchequer, and Chancery.

[* ]Other questions, though relative to appeals themselves, not being necessary to consider with reference to the establishment of courts of appeal, will have no place here:—

1. What, if any, are the orders from which appeals may be made, over and above the definitive decree?

2. What are the changes which it should be in the power of the appellate court to make in terms of the original decree?

3. Whether in penal causes the door shall be equally open to changes made to the disadvantage of the defendant, as to changes made to his advantage?

[* ]The mischief of delay admits of the following modifications:—

I. In civil cases:

1. So long as it lasts, it is productive of the effect of undue decision, to the prejudice of the plaintiff.

2. It may be definitively productive of the same effect, by operating a suppression of evidence.

3.—or by staving off the decision till the only means, or the most proper means, of administering satisfaction, are out of the reach of justice.

II. In penal cases:

4. So long as it lasts, it is productive of undue impunity on the part of a guilty defendant, and of undue anxiety and impairment of reputation on the part of an innocent one; to which is to be added imprisonment, or other undue coercion, in cases which render the application of such afflictive expedients necessary before conviction, lest in case of conviction execution should be eluded.

5. By effecting a supression of evidence, it may be definitively productive of undue impunity on the part of the guilty, or undue conviction and punishment on the part of the innocem.

6.—or of undue impunity in another way, by staving off the decision till the only, or most proper means of satisfaction, or the most proper means of paying the debt of punishment, are out of the reach of justice.

[† ]Suppression of evidence may be effected in several different ways: for example,—

1. By refusing or delaying to compel the appearance of a person whose evidence is wanted.

2. By refusing to suffer him to be examined.

3. By forbidding him to make answer, or by refusing to oblige him to make answer, to a particular question.

4. By refusing to suffer, or to compel, the production of an article of written or other real evidence.

5. By refusing, in the case of immoveable evidence, to repair to the spot at which alone it can be collected: for instance, to take a view of land or buildings, or to take the examination of a bedridden party, or other witness.

6. By refusing to enter upon the record a statement of the evidence, of what nature soever, when collected: or by making a fallacious or imperfect entry of it.

In English jurisprudence, the doctrine of evidence has furnished matter for several volumes. The greater part of them is taken up in settling in what cases evidence shall, and in what cases it shall not, be suppressed. On this head there is scarce a rule in it that is not opposite to common sease, contradicted by practice, and repugnant to every end of justice. For penal cases, you would swear them penned by malefactors; for civil ones, by debtors, to enable them to cheat their creditors.