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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.

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.

[* ]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.

[‡ ]Precipitation may operate a suppression of evidence, and thence be productive of undue decision in several ways: for example,—

1. By proceeding to decision, instead of waiting to receive, or proceeding to compel, evidence.

2. By proceeding to hear arguments, or to collect evidence that might as well have been collected at a future time: in a word, by taking any other step that might as well be taken at a future time, instead of proceeding to collect an article of evidence which, if not collected at the moment, may never be to be had at all: for instance, the testimony of a dying man, or a man on the point of setting out upon a long voyage.

In a word, since the bringing forward one step in a cause may be the delaying of another, whatever mischief may be operated by delay in the way of suppression of evidence, may be equally effected by precipitation.

3. So likewise, whatever mischiefs may be operated by delay, in the way of placing out of the reach of justice, the most proper, or the only means of yielding satisfaction, or paying the debt of punishment.

[∥ ]For the mischief of delay, the remedy is an order for expedition: for the mischief of suppression of evidence, measures taken for filling up the deficiency in the body of the evidence.

Of a complaint of delay, the necessary concomitant is therefore a petition for expedition: of a complaint for suppression of evidence, a petition for filling up an alleged deficiency in the body of evidence, or more shortly, a petition for supply of evidence.

As to precipitation, it has no separate and peculiar mischief of its own; neither can what has been done in this way be undone: there can therefore be no particular petition correspondent to the complaint made upon this ground: if the mischief be that of suppression of evidence, the petition will be a petition for supply of evidence: if the mischief be the placing the means of satisfaction or punishment out of reach, the petition will have for its object such measures as may be best calculated for bringing the objects in question within the reach of justice: if the mischief be of any other kind, the petition will fall under the general notion of an appeal: such precipitation being only a particular mode of bringing about an undue decision.

A petition for expedition is, if there be any difference, still more necessary than an ordinary appeal properly so called. By delay, that is, by indecision, a judge might not only do to the prejudice of the pursuer’s claim, all the mischief that could be done on the same side by undue decision, but he might do it without committing himself in any shape. Let a decision be but given, if it be totally groundless, its very absurdity may present of itself a sufficient ground, not only for the reversal of the decree, but for the punishment of him who made it: silence, if allowed, will afford a shelter equally secure to the grossest absurdity and the blackest guilt. Without the means of compelling a decision, the most perfect contrivances for reforming undue decisions would therefore be of little use.

[* ]In the case of undue decision, everything turns upon the state, that is, upon the apparent state, of the conscience of the judge; upon the question, Whether he was or was not conscious of its being undue; except in the case of a fixed principle of honest error, or general incapacity. Particular hardship is but a drop of water in the political ocean: a general sense of insecurity raises an universal storm. This intolerable sensation, this universal storm, a single decision, so it do but appear to be the result of known and intentional injustice, is sufficient to excite. Had it been through mere misapprehension that the daughter of Virginius had been doomed to servitude, the injustice would have passed, like a million of other injustices, without notice; and the Decemvirs might have been reigning to this day. It was Bacon’s apology against the charge of corruption, that, whatever he might have made men pay for just decrees, he had never sold unjust ones. The excuse, true or false, was little to the purpose; for, as it was notorious that he took money for his decrees, and disputable whether they were just or no, the Court of Chancery wore, in the eye of the public, the appearance of a great auction-room, in which allthe fortunes of the kingdom were selling to the best bidder, for the benefit of the judge.

Motives, even of the purest kind, if they present to the public eye the prospect of insecurity, may, in this way, produce to a certain degree the evil consequence of corrupt ones. Such is the case where the judge takes it into his head to turn legislator, and to substitute to the bad laws, which it is his business to execute, better ones of his own making. Everybody knows in England what an alarm was taken by lawyers, and through them by a considerable part of the public, on account of two or three decisions given, not a great many years ago, more conformable, it was supposed, to reason than to law. Conveyancers were up in arms: Not a will nor a settlement can we pretend to draw, said they, which this man with his improvements may not turn into waste paper. Shall absurdity have been worshipped in my predecessors, and shall not reason and good sense be tolerated in me? He had miscalculated. The times are over, when judges might decide absurdly, or rationally, as they pleased. Something of a public is formed in England; and a public which, with all its fondness for old abuses, will not submit to new.

To this head may be referred one of the chief advantages attending the institution of juries. The most sanguine admirer of that institution can never seriously suppose that, on the part of a random assemblage of uneducated men, unused to judicature, the chances of erroneous decision can in each instance be less than on the part of a man of education who has made it the business of his life: but, as the composition of this tribunal changes at every cause, men flatter themselves, vainly flatter themselves, that in so fluctuating an assembly no fixed principle of error can perpetuate itself.

In the case of undue decision, which has for its source neither a corrupt principle, nor a principle of any other kind that threatens a repetition of the grievance, the mischief may in most cases be set down as nothing. It may in all civil ones. Take into the account the interests of the parties merely, and suppose the expectation of success equal on both sides; decide as you will, you do just as much good and just as much harm by deciding one way as the other. A decision has been given, erroneously suppose, though upon the merits, to the prejudice of the plaintiff. What harm has been done by this upon the whole? Not any. Whatever suffering the plaintiff has undergone in consequence, so much suffering has been saved to his successful adversary. This, it is true, would not have been the case, upon the supposition that the expectation of success on the part of the winner had been less strenuous than on the part of the loser: as it may be supposed to have been, if, without any opinion of the merits, the defence had been made merely through a temporary inability to comply with the demand, or in order to stave off the evil day of compliance. But this, in the instance put, cannot be supposed to be the case. The defendant’s cause has appeared just in the eyes of an impartial judge: is it likely that it should have appeared less so in his own?

In penal cases, it is true, the mischief of erroneous decision is of a more substantial nature. If to the prejudice of the defendant, undue and useless suffering is the consequence. Happily, this misfortune, in proportion as it is important, is unfrequent. Whatever may be said by honest concern or hypocritical affectation, the propensity of human nature lies the other way. No man, however depraved, does mischief without particular reasons for doing it: still less a judge, who risks so much by doing it. If an incident of this kind be but suspected, it makes an event, and the whole country rings with it. In a country like France, I should be much surprised to find that the whole number of unjust sentences of all kinds, exclusive of such as may have been meant to be so, had ever amounted to ten in the compass of a year.

Errors on the other side are beyond comparison more natural, and more numerous, even under the harshest system of justice. And errors on this latter side are, in some of the most frequent as well as mischievous of crimes, in fact, more pernicious than on the former. Punish a man erroneously as for a homicide committed in prosecution of a design of robbery, you punish that one man. Acquit erroneously a man guilty of the same crime, you sacrifice the lives of all those whom destiny has marked out for victims to his future enterprises. The English procedure, favourable to malefactors as it is harsh and ruinous to honest men, has forgot to provide correction for the most palpable errors on this side: and this forgetfulness, or this blindness, has obtained, from a deluded public, the praise of humanity and wisdom.

Such being the case, the chance of error on this side will not, in England at least, and by the admirers of English judicature, be added to the list of the reasons that call for the institution of appeals: in my estimate, it would tell as one, though that not of itself a sufficient one.

Thus stands the matter where the point in controversy has been the matter of fact. For on decisions relative to the mere matter of fact, suppose every source of undue decision, and thence all ground for a public sense of insecurity, out of the question, none but the parties and their immediate connexions are at all concerned.

Let the decision turn upon the point of law, and suppose no such provision made as that suggested in the text, the case is otherwise. Every decision made upon the question of law has, in as far as it is known, the effect of a new law; which, in this case, being unconformable to the will of the legislator, is by the supposition a bad one: it leads the judicial power, and on pain of worst consequences compels them, to give similar bad decisions in all future cases of that sort. Adopt the institution above suggested, stop the current of future bad decisions by the hand of the legislature, the mischief of the bad decision, though a decision on the point of law, is no longer general but particular, and stands on no wider basis than if the decision had been given on the mere question of fact.

Whether the question turned upon the written, or upon what is called the unwritten law, so long as that most pestilent of all nuisances is suffered through necessity to continue, need make in this respect no sort of difference. The disease, it is true, is always more apt to break out in this bastard sort of law than in the legitimate: but the cure is not less easy to apply in the one case than in the other. If a sore place is observed in the unwritten law, put a patch of written law upon it, and as far as the patch extends, the inconvenience is no more.

All this proceeds upon the supposition of a legislature constantly awake, such as that of France, since the broad day-light it has cast upon the face of the political world, can never cease to be: not of a legislation like the British, habitually asleep, unless when roused by the spur of some paltry private interest, or momentary public one.

[* ]I say, as to the future: to extend the effect of the interpretation to the past, would be to turn the legislative assembly into a court of appeal, and the time of the legislature would be consumed in judicature. In the one way, the only cases about which the legislature will be occupied, will be those in which the interpretation given in the courts below has appeared erroneous in the eyes of the committee: in the other way, the legislature would be troubled with all the cases in which the unsuccessful party thought it erroneous, or for the purpose of delay found his account in pretending to think it so.

[* ]In England, in civil cases, an appeal is allowed, under the name of a new trial, from one jury to another, at the discretion of the judges from whose court the action was sent to be tried, upon hearing the report of the judge who presided at the first trial, and the arguments of counsel upon the report. But the evidence must all be delivered over again, and the labour of the first trial is all lost upon the second. Whether the trial is meant to answer the purpose of an appeal, or of a rehearing merely, or of a supply of evidence, makes no difference; nor is any notice taken, upon the second trial, of what had passed upon the first.

[† ]By the word record, I beg once for all to be understood to mean what a record ought to be: a complete history of the proceedings in the cause, including the whole body of the evidence: not the hodge-podge called in English law-jargon a record, a mess made up of one grain of truth to ten or twenty of lies and nonsense. The reading of an English record is a felicity to which no Frenchman who is not master of English, must presume to aspire: for in the French translations of Blackstone’s romances, the formularies, containing the marrow of the science, are barbarously omitted. The predilection which, with a degree of readiness peculiar to that generous nation, has been so generously conceived in favour of English jurisprudence, has therefore no other basis than a mutilated copy of a tawdry and deceitful picture.

[* ]A complaint of delay, or suppression of evidence, it may occur, is a sort of cause within a cause; and every cause must have its evidence, its grounds, to go upon. But the very complaint here is, that the judge below will not collect evidence. What remedy? Several. In default of the judge, the pursuer-general may be required to collect the evidence relative to this incidental cause: in his default, the defender-general. In default of both those public officers, the private individual, the appellant himself, must certainly try his own credit with the court above. This he may do, either in person, or, if the distance be too great, by letter, provided it be under the sanction of an oath, in manner hereinafter mentioned: but in a case like this, he can be in no want of witnesses: as to whatever allegations or other documents he demanded to have transmitted in form of a record, and to which the magistrates in question refused to give that authentication, he has but to call in the attestation of any bystander.

These are cases just possible, but not at all supposable. A public magistrate will not venture upon an act of misbehaviour, which admits of no colour of defence. A judge may have good reasons for delaying a cause; he may have plausible reasons for suppression of evidence: but for refusing to give his attestation to allegations on either side, which the law expressly ordered him to record, he can have no excuse. It will be a crime on his part; and the proceedings against him will follow the course marked out, with relation to other crimes.

[* ]In the canton-court. See committee’s draught, Tit. III. Art. 2. “Les parties seront entendues devant le juge de paix, sans qu’elles puissent fournir aucunes écritures. . . . . .”

[† ]In the court of administration and taxes. Ibid. Tit. XV. 3. “Si l’affaire ne peut pas être conciliée, elle sera portée au tribunal d’administration, qui décidera en dernier ressort, sur simples mémoires, sans forme de procédure et sans frais.” So in the superior courts; ibid. Art. 4: but in both courts, only in particular cases.

[‡ ]Only in the instances just quoted.

[* ]Causes, for example, relative to the condition in life of an individual, in respect of the relations of husband orwife, parent or child, &c.

[* ]The antique distinctions taking away appeals in cases of infangthef and red-hand were as illgrounded as the phraseology is uncouth. What becomes of infangthef and outfangthef, when three or four pickpockets shift a handkerchief from hand to hand in the twinkling of an eye, and all are seized for it? What has red-hand to do, when prison, not the sword, is the instrument of death? And in the marks of guilt in general, who shall mark out the limit between fresh and stale? Yet these are among the clearest distinctions in point of difficulty.

Difficulty may subsist—

I. As to the question of law:—1. Under the written law, if the text of the law be ambiguous or obscure: if there be an incongruity between one part of that text and another. 2. In the unwritten law, if decisions clash: if there be a want of decisions in cases of near analogy to that in question—a deficiency of which the natural effect is to draw in a proportionable abundance of decisions of remote analogy.

II. As to the question of fact:—If the evidence of different persons is contradictory: if the testimony of a principal witness is inconsistent or obscure: if the cause furnishes different pieces of real or circumstantial evidence pointing to opposite conclusions.

[† ]Tit. III. Art. 8.

[‡ ]Clavière de la Foi Publique p. 161: 8 sous 10 den. a-day, gives 161 liv. 4 sous a-year.

[∥ ]250 liv. Tit. IV. Art. 9.

[* ]A reporter by authority might be appointed at each court, to give summary accounts of its proceedings day by day. The profit of the sale could hardly fail of covering the expense: and the activity of voluntary news-writers would furnish a natural check upon the good faith and accuracy of this official scribe.

[* ]A malefactor whose guilt is indubitable, and who has made no defence, will appeal to the metropolis for the sake of staving off for three weeks the evil day of punishment: this, in that case, is the utmost possible extent of the abuse: but this being inevitable, must be looked for. A defendant, if unjustly condemned by the immediate court, has so much the longer to wait for his release from jeopardy: an appeal from acquittal, if admitted into the code, may keep an innocent defendant in jeopardy so much the longer. These are two possible cases: I mention them, resolving to omit nothing: but nothing less than such a resolution could introduce suppositions which under the harshest systems are so rarely verified.

[* ]When a cause is said to be begun in a district-court, to say nothing of the canton-court below, the following is a map of the journey it has to take:—

1. Into the peace-office of the district; or into a canton-court under the name of a peace-office. Tit. IX. 1, 4.

2. Into the district-court. Ibid.

3. Back again into the peace-office of the district. Ibid. 5.

4. Into the department-court. Ibid.

5. Back again a third time into the peace-office of the district. Ibid. Quære.

6. Into the superior court. Ibid.

7. Into the supreme court of revision. Tit. X. 9.

A defendant, whose object is delay, may meet and fight the plaintiff through all these different stages, and that in any cause: for what should hinder him? and these six or seven degrees for anything above 250 livres value.

Gentlemen, it should seem, do not care how many degrees of jurisdiction there are, so as you do not call them by that name. M. Duport, whose plan has just reached me, and who declares war against appeals (p. 56,) is fond of quashing and revision (p. 59,) and is in raptures with the committee’s juges de paix, and their “tribunaux de conciliation,” p. 60. He gives a judgment which he calls “definitive” by grand judges, “after three judgments by judges of assize,” p. 78. He sends his judges a circuiting, he clogs them with juries, and his only fear for his plan is grounded on its extréme simplicité (p. 65.)

Having dealt thus freely with others, it is time I should do justice upon myself. I take once more a leaf out of the book of the self-condemning pope. Judico me cremari. I sentence to the flaines my department-court of appeal, my district-court of appeal, and in consequence Titles VII. and VIII. of my draught, with the greatest part of Tit. VI. Obsequiousness drew me into the snares of complication: reflection has restored me to simplicity. I beheld the nation entranced, as I thought, with visions of hierarchies, long as Jacob’s ladder. Fresh packets are come in: and it seems as if prejudices of all kinds had lost their power in France.

[† ]The incongruity of a reciprocation of superiority between two courts seems to have made the same impression upon them as upon me. To get rid of it, they have hit upon an expedient which, I must own, would not have occurred to me. They have invented a new species of mathematics. If B, say they, is greater than A, to make A greater than B would be absurd. Take C then, and make C as much greater than B, as B is than A; then may A be greater in its turn than C, without absurdity. From a department-court, acting in its capacity of a district court, appeal, is to go, not to another district-court in the same department-court, but to the department-court of another department, within the jurisdiction of the same superior court; and to avoid the incongruity of a direct reciprocation of superiority between two such courts, an indirect and still more incongruous chain of reciprocation is established among the whole number of such courts, in manner above explained. [See Tit. V. 9.] In all this there is great ingenuity, but to what end? Perhaps that of preventing the ill humour liable to be bred by a course of reciprocal correction. What a pity, that instead of giving their own reasons, they should have left the task to adversaries!

[* ]These considerations seem not to have presented themselves to the committee. To make a department-court, they take, we see, one of the district-courts, and, in addition to the business of an immediate court, which it possesses in that character, they load it with as much of the business of an appellate court, as all the other district-courts in the same department can supply. The same courts, too, that are thus doubly loaded with business, are doubly loaded with judges. Five serve for an ordinary district-court; but it is to have ten, when raised to the dignity of a department-court. If five judges will find themselves in one another’s way, as most certainly they will, ten judges will find themselves as much more so. Eighty-three departments, and five hundred and thirty-eight districts, give upon an average somewhat more than six districts to a department. The situation of the committee’s judges calls for pity. In every department I see five-and-twenty of them spoilt with idleness, ten expiring with fatigue. Sad also is the lot of every suitor, upon whom the honour of living under the dominion of a department-court does not pass as an equivalent for justice.

[† ]Accordingly, under the French system of procedure, both these contingencies are provided for: under the English, the latter only, and that imperfectly. But what matters it? All the harm is, a failure of justice, the never-failing resource under all difficulties.

[* ]“Ne amplius clamorem audiamus.” Vide Registrum Brevium, passim.

[† ]Writs of Error—Motions to quash convictions—Motions for new trial.

[‡ ]Appeals from single justices of the peace to the quarter-sessions: appeals from the quarter-sessions to the King’s Bench. The artificial evil of expense affords the plea of necessity to this injustice.

[∥ ]From the Common Pleas, or the inferior judicatures, through the King’s Bench, to the House of Lords: from the King’s Bench, or Exchequer, through the Exchequer-chamber, to the House of Lords.

[§ ]Motion, supported and opposed by affidavits, for leave to file an information.

[¶ ]By written affidavits on both sides.

[** ]Preferring of a bill of indictment to the grand jury.

[†† ]By a warrant from a justice of peace.

[* ]With the variations indicated by the ensuing notes, the contents of this will serve for Tit. IV. Of Pursuer-Generals, and Tit. V. Of Defender-Generals.

[a ]{ Purs. Gen. Pursuer-General.

{ Def. Gen. Defender-General.

[b ]{ Purs. G. Pursuer-Generals.

{ Def. G. Defender Generals.

[† ]In both instances upon the same principles, with only a slight modification indicated by local differences.

[c ]This article is copied from Tit. IV. Art. 5, 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.

[e ]Purs. G. and Def. G. Omit this article.

[f ]Purs. G. and Def. 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. G. and Def. G. Omit this clause.

[a ]{ Purs. G. Pursuer-General.

{ Def. G. 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. To this clause substitute the three clauses inserted under Tit. IV. Art. 6 & 7.

[m ]Purs. G. and Def. G. Insert—seek to.

[n ]Purs. G. and Def. G. Insert—in as far as appertains to my office.

[o ]Purs. G. and Def. G. Insert—the reclaiming.

[p ]Purs. G. and Def. G. The Judge.

[a ]{ Purs. G. Pursuer-General.

{ Def. G. Defender-General.

[q ]{ 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.

[* ]A full definition of the expression, evil conscience, [mauvaise foi, mala fides] is absolutely necessary: but its place is in the Penal Code.

[* ]See Ch. IV.

[* ]How can you punish a man merely for judging wrong, if with a colour of right, without knowing his motive? And if his motive be a partiality which betrays itself by no expression, how are you to discover it? A judge has exercised a legal discretion in a particular way, through a corrupt motive—How are you to punish him, when the act itself is not illegal? The motive is but partiality, and a man, without being partial, may have exercised the discretion in the same way? In order to screen a friend by suppression of evidence, he refuses to reprove a man legally convicted of a capital offence—Who can say, with the confidence necessary for inflicting punishment, that this was his motive, when it is of the essence of a reprieve to be granted or refused at pleasure? Read the reports made to the House of Commons in 1781 and 1782, and see how possible it is for hearts hardened and understandings depraved by English jurisprudence, to turn a country upside down, and make a people miserable, without giving a hold to punishment. Accordingly, the power of amotion, exercised in one instance, seems to have administered some check to the mischief: though punishment, after having been attempted, has been abandoned as impracticable.

[* ]I avoid insuring to a man the continuance of his salary upon resignation, for the obvious reason of not turning the establishment into a nest of sinecures. When a judge desires a retreat, he has but to get a friend to propose his amotion on the ground of a decline of faculties, and signify his concurrence. In the same way he may soften the harshness of amotion, when the proposition does not originate with himself. Pensions of retreat, as given in England, operate much more effectually as a fund of peculation and corruption, than as a remedy to this grievance. The cases where the pension is granted are, where a lazy judge has a minister for his friend, and where the minister has a friend whom he wants in the judge’s place. The cases where the pension is not granted are, where the judge is too incapable to pretend to do business, and where he does it so badly that his not pretending to do it would be a blessing. Examples of both these cases are fresh enough in memory.

The power of amotion, lodged in the King upon address from the two houses, is in such a case a remedy only in name. Who cares enough for justice, to make an invidious motion against an obnoxious judge? How could such a determination be formed without evidence? and how could evidence be had, without trying over again, and that in each house, the causes in the course of which his incapacity is supposed to have displayed itself?

[† ]Ch. IV. § 1.

[‡ ]In English judicature, notwithstanding the purity so justly celebrated in the higher class of judges, a deficiency in these minor virtues has been no unfrequent failing. The difference in this respect is said to have been remarkable between single judges, and courts in which four judges sit together. The same man who has been complained of as stern, hasty, and dogmatical, when sitting alone, has been observed to have assumed the opposite virtues, and that notwithstanding a rise of rank, when checked by the presence and co-ordinate authority of three colleagues. This has been represented as a palliative to the indisputable inconveniences of numbers in judicature: the more so, as from such hastiness injustices have not unfrequently been observed to arise, though without improbity, because without any intention or consciousness of injustice. Certain it is also, that, though since the days of Lord Bacon there has been no such thing as a corrupt chancellor, there has been no want of rough and surly ones. This use of numbers, whatsoever may be its importance under the English system, would be nothing under mine. Under the English system, no right of election—no power of amotion in the people—no dependence on the people for promotion—appeal too expensive to be within the reach of an ordinary purse.

[* ]Examples: Lord Mayor of London: Sheriffs of London.

[† ]Examples: Chamberlain of London: Chairman of the justices of the peace for Middlesex: President of the Royal Society.

The chairmanship of the justices of the peace for Middlesex affords an instance which has its value, both as an example of a sort of popular election with regard to a judicial office, and as having afforded experimental proof of the utility of the power of amotion. The chair is indeed filled by a similar mode of election in every county: but the quantity and importance of the business in a county which encircles the capital, distinguishes this chair from the rest, and assimilates it in some sort to the higher seats in judicature. The electors are indeed all named, and displaceable by the crown: but as it has not been customary to remove a magistrate but for known and avowable causes, the situation is not in practice very wide of independence. The last chairman (since deceased,) after having been annually re-elected for a long course of years, was at last dropped, not without good cause. In probity as well as ability he stood unimpeached: expulsion in the way of punishment could never have found ground to fix upon: but being sometimes capricious, and always morose and overbearing, his amotion in favour of the gentleman who now fills the office was felt as a public benefit.

[‡ ]Examples: Member of Parliament: East-India Director.

[* ]Considering how easy we have seen it to be, for a judge who wants the sense of shame, to misbehave in a very gross degree, and that even through corrupt motives, without exposing himself to judicial censure, it might perhaps be not amiss to empower the people to follow up their amotion by subtraction of the salary, so it be after such an interval as should out-reach the utmost duration of sudden and undeserved unpopularity: for example, five years. It might otherwise be possible for a judge who was at once indolent and shameless, and who had no pretence for resignation, to provoke amotion, in order to retain the pay after ridding himself of the trouble. A deprivation so very unlikely to happen, without the wilful default of the person deprived, could hardly operate any sensible diminution in the value of the office in any point of view.

[* ]Such as taking views of the condition of immovable objects: taking the examination of bedridden parties or witnesses: settling disputes or quieting tumults among bodies of people upon the spot.

[* ]Under the English judicature, the judges of the highest order, though they can depute nobody else, may, under certain restrictions, and frequently do, depute one another: which makes one of the thousand departures from the Latin rule that Mahometan judges in Bengal were destroyed for departing from, by lawyers sent from England to teach them justice.

When it happens not to suit the politics of the minister to have a chancellor, the seals are put into commission: and the judges are drafted into this court of equity from the courts of common law, each of the three great courts commonly supplying one: and in this way the business will go on quietly for months or years. If the common-law court cannot do so well without the judge thus taken from it, he ought not to be taken from it: if it can, the public ought not to be burdened with his salary.

[* ]For shortness sake I confine the expression all along to the voluntary auction, though the effects ascribed to it depend in part upon the concomitant plan of an obligatory defalcation from the salary in proportion to private income.

If the appellation be a foolish one, the folly lies not altogether at my door. One of the words is the well-known name of an equally well-known practical sort of a thing, quite in the way of business. In England, when a candidate’s zeal to serve his country has outstripped his economy, his estate comes every now and then under the hammer; and nobody then demurs to the propriety either of the thing or of the name. The other half is humbly copied from the contribution patriotique, the so-much-celebrated mode of supply now going on on the other side of the Channel. As to patriotism, the English reader will have the goodness to consider, that neither the name nor the thing are ridiculous in France.

[† ]See Mr. Burke’s speech upon the Economy Bill, Feb. 11, 1780.

[‡ ]Ib. p. 66.

[∥ ]See Art. 17 of Mr. Burke’s charges, with Hastings’s answer. The accuser seems to have forgotten his own rule: the defendant, to have remembered it much to his advantage.

[* ]In Great Britain, a contested parliamentary election is a sort of auction, patriotic or antipatriotic, as the reader pleases. One circumstance only is wanting, to make it exactly my auction, which is, that the money, instead of being employed in waste and all kinds of mischief, should be paid into a public fund, in case of the burdens of the people. Taking money from the subject, or putting him into situations which force him to spend it, is what in itself gentlemen have no objection to. What makes it odious or ridiculous, is the idea of putting it to a good use. Propose to a minister in Ireland to establish a land-tax, though it were but of a shilling in the pound, or in England, to add a shilling to what there is already, you might as well propose to him to jump into the fire: for, being called a tax, the money would go into the exchequer, and would save other taxes. Propose to him to lay an impost of 3s. 4d. a pound upon the income of money, in England he will look wistfully at it, and in Ireland he will adopt it: for being called, not a tax, but a regulation of the rate of interest, the produce of it is made a present of to those who gather it, which obviates every objection.

[* ]Money may serve to get the better of a repugnance, or keep up the liking, to the business of office: but the only way of giving it this effect, if there were any use in it, is to make it come in hand in hand with business: in a word, to give it, not in the shape of salary payable at distant periods, but of fees or daily pay. The emoluments of my judge take this latter shape, though, as may have been observed, for other reasons.

[* ]Let us do no man wrong. Corruption has not been in fact the fruit of this species of venality: corruption was not amongst the sins of the old magistracy. Those who have thought worst of them have never accused them of this crime. “No,” says a generous adversary in the height of his invectives against the Parliament of Brittany, “no hands were ever more pure than theirs.” Discours de M. Chapelier à l’Ass. Nationale, contre le Parl. de Bretagne, 1789.

[* ]The number of the district-courts.

[† ]The number of the department-courts.

[‡ ]Number of the superior-courts.

[∥ ]In the supreme court of revision.

[§ ]In the high national court.

[* ]It is obvious, that if the principle of the patriotic auction is applicable to any one branch of the political establishment, so may it be to any other: but in different cases the application made of it will require different modifications. I may have occasion to pursue it further elsewhere.

[* ]A Mr. Nicholas Farrer stands recorded, in the Gentleman’s Magazine and elsewhere, as the pious founder of a club of this sort upon the pure principle of protestantism, and without any popish views. Providence has not been so careful of this as of less laborious colleges.

[† ]It would take a volume to give a catalogue of all the modes in which the denial of justice has been worked up by this cause in England to the pitch at which it stands. Nothing could be better imagined for this purpose, than the want of local judicatures, combined with enormous taxes, and the artificial necessity of enormous fees. Small portions of time will serve for collecting as much money as the people can afford to give, in such large masses in which alone the profession will stoop to take it.

The Welsh judges, eight in number, have from £550 to £930 a-year salary, besides fees to an amount unknown, for twice two months service, staying about a week in a place, and pitying, with generous concern, the lawless barbarism of those distant provinces. Mr. Burke, looking over the establishment, and seeing these men sitting idle for eight months out of the twelve, seems to have taken them for thieves, and to have conceived an honest wish for ridding the country of the greater part of them (Speech on the Economy Bill:) but there would be work enough for them all, if they were but made to do it, and the entrance into the courts were not barred by oppressive taxes, and a still more oppressive system of procedure.

[‡ ]Daily payment nowhere but on the spot; or, where there is no salary, daily return of a proportionable part of a deposit exacted for that purpose. See p. 356.

[* ]Sudder-Adawlut, could one but find the English of it, might save a page. But where?—It is not in Johnson or in Jacob. In Hebrew some have rendered it Aceldama. And is the House of Commons, too, to be an Aceldama?

Two advocates formed part of the household of an earl of Northumberland in the sixteenth century. Why not? Compared with indiscriminate prostitution, concubinage is chastity. To a link-boy or a street shoe-black, a livery is a coat of honour. What should we say, were we to see the livery of a duke upon the back of a judge?

[* ]The statute-book of the principal of the two arch-seminaries of virtue, knowledge, and religion in England, is, from beginning to end, one continued violation of this rule. It is stuck full of penalties, from twenty-shilling down to sixpenny, fourpenny, and twopenny ones; and lest the paradise it creates should in one luckless hour be lost by a single instance of disobedience, it applies to every clause, without exception, the tremendous sanction of an oath, that delinquency in matters of such moment may be impossible.

[* ]The code just referred to may vie in levity of contents with the most eminent receptacles of monastic beatitude.

[† ]The same code teems with articles that are so many infringements of this rule. It may be questioned, whether there be that man living who ever spent a week in that seminary of piety and orthodoxy without committing numerous violations of those consecrated ordinances, and consequently without incurring in so many instances the guilt of what is there, in express terms, called perjury.

[‡ ]Subscriptions to articles of faith are among the most flagrant examples of this mode of misapplication. In this most exquisite contrivance is comprised everything that can recommend it to the head and to the heart of senseless tyranny: the object useless, the means flagitious, and the accomplishment impossible. The pious hope that perjury may conduct the heretic to eternal tortures is the only expectation that wears the faintest colours of a reasonable one.

The author of the code just mentioned has taken care to exact from his subjects this proof of their belief in a set of articles, by which the dreams of a parcel of churchmen in 1563 are fixed as the ne plus ultra of English wisdom in matters of religion to the end of time. In this farrago, worthy in every respect of the age which gave it birth, the flower of the English youth are made to profess belief, before it is pretended they can entertain it, that they may ever after be obliged to pretend it, because they have professed it. Sincerity and discernment, the two qualities the most odious, and the most justly so, to a domineering, an over-fed, a lazy, a corrupted, a corrupting, and, in the most palpable points, an anti-christian priesthood, are thus nipped in the bud, and the minds of the rising race of legislators emasculated, poisoned, and fashioned from infancy to their yoke.

The official oaths, which may be seen scattered in such abundance on the face of English statute law, look, all of them, as far as recollection serves me, as if stamped upon this model. You would swear them penned, every one of them, by the same old woman in her dotage. I speak of the productions of modern time: for, in this line, intelligence seems to have been not stationary, but retrograde. In a book of oaths printed in 1649, I find, in many instances, clauses of a specific nature, which show, that in those days the perfection of imbecility and insensibility were not as yet by any means attained.

A collection of the instances in which this so much vaunted sanction is universally and notoriously trodden under foot before the eyes of an assisting priesthood, a contented magistracy, and a passive legislature, would be a work not without curiosity, though, in times like the present, of more curiosity than use.

[∥ ]The oath prescribed by a statute of Geo. II. (2 Geo. II. ch. 23) to be taken by attorneys on admission, runs in these words: “I A. B. do swear that I will truly and honestly demean myself in the practice of an attorney, according to the best of my knowledge and ability. So help me God.”

The attorney who penned that oath ought to have been hanged for a traitor to mankind. He had a receipt in his pocket for making the whole race virtuous; and out of pure spite, for it could be nothing else, refused to give them the benefit of it. For attorney he had but to put human creature, and the business would have been done. All traders grasp at monopoly. But it was reserved for attorneys to give themselves the monopoly of “truth” and “honesty.”

[* ]Read Mr. Burke’s Letters and Speeches to the electors of Bristol, and see all the powers of eloquence exhausted, and, as the event seems to have shown, in vain, in defending a public man against the imputation of preferring the real interest of the British empire and of mankind to the imaginary interests and real prejudices of a few leading men in that one town. An oath, if penned with proper skill and attention, might give parliamentary virtue its perpetual quietus from such distressing and degrading difficulties.

[† ]I shudder at the very possibility of doing an injustice: trifling as injustice may appear to some eyes in such an instance. Oxford includes but half the church, though that not the least considerable. In Cambridge, whether statutes are sworn to, or, if sworn to, habitually broken, not having the means of certainty in my hands, I stay not to inquire. But the distinction, if there be any, is of mighty little consequence. In such a case, delinquency and connivance are scarce worth distinguishing. Who ever heard of any attempt, on the part of either university, to distinguish itself in this point from the other? Who ever heard of any uneasiness expressed by a Cambridge bishop, as such, at the apprenticeship served to impiety by an Oxford one?

[a ]Def. G. Omit this paragraph.

[b ]Def. G. Defendant.

[c ]Def. G. Defender-General.

[d ]Def. G. become Pursuer.

[b ]Def. G. Defendant.

[c ]Def. G. Defender-General.

[e ]Def. G. Pursuer-General.

[* ]See Chap. I. Observations 6 and 8.

[† ]This idea will hardly appear altogether visionary to the English reader, who thinks of the superiority of skill so generally understood to be the consequence of a lawyer’s attaching himself exclusively to a particular branch of business: whence the different denominations of leading counsel, special pleaders, equity draughtsmen, and conveyancers.

[‡ ]See Chap. V. § 11.

[* ]It is possible indeed for the judge, if information has been given him, to join to his own function that of prosecutor: or even without either information or evidence, in the rare instance of an offence committed in his presence. Hence in some countries the mode of proceeding styled ex officio: and in England the power given in some instances to justices of peace, for example, of convicting on view. But the three functions are not in themselves the less distinct.

[† ]This comes nearest to the English mode.

[‡ ]This comes nearest to the French mode.

[∥ ]Public rumour equally supposes an informer, though not an informer in form.

[§ ]This supposes all special inability or insufficiency out of the question, whatever may be the cause: poverty, for instance, age, sex, or intellectual infirmity.

[¶ ]Examples: 1. Smuggling, and other offences against the public wealth: 2. Perjury, and other offences against justice, committed in the view of favouring the escape of a delinquent from punishment, satisfaction to an individual injured out of the question.

[* ]In the English law, in some instances (actions called qui tam for penalties given in part to the prosecutor,) it often happens that the person meant under the name of plaintiff, prosecutor, or informer, chooses to be, and accordingly actually is, unknown. But in this case the real prosecutor is the attorney. The client, who is to receive the reward, if recovered, is only the attorney’s informer, and the attorney’s security for the costs.

[* ]Examples: 1. Theft: 2. Defraudment: 3. Robbery: 4. Mutilation, or other atrocious corporal injury: 5. Homicide.

[† ]Satisfaction in damages (including restitution) out of the delinquent’s substance, answers to what may be reckoned to this purpose the natural interest: anything beyond or beside that may be deemed factitious.

[‡ ]A reward may indeed be given in these cases at the expense of the public. But such an inducement would be much too expensive to be given in all instances of this class. It never has been given by any general law in the case of common theft, for example: though in England it is given in that manner in the case of highway robbery. As to occasional rewards not given by any general law, they are out of the question here.

[∥ ]The strict truth is, that in this respect there is but little difference between the most private of private offences, and those which have been ranked with public ones. In the former case, no less than in the latter, whatever benefit is reaped from the labour of prosecution by the individual immediately injured, is shared in at least equal proportion by every other member of the community: the only difference is, that what has been restored after privation to the one, is preserved without privation to the other. The danger of peculation by collusive suits, is the only reason why, in cases termed civil, as well as in those termed penal or criminal, an indemnity for this trouble cannot be allowed. Where the defendant is exposed to no punishment, a beggarly plaintiff might get a beggarly defendant to join with him in carrying on a sham suit, that the plaintiff might get payment at the expense of the public for his labour and his time. Against such collusion, the punishment that awaits the defendant in a penal cause, affords what in general will be a sufficient preventive: and without such collusion, a plaintiff in such a cause could not in any such view institute a groundless action, without exposing himself to punishment for calumny, instead of payment for his trouble. See the Chapter on Law-Taxes.

[§ ]Yet such is the course pursued in the Prussian system. See the Chapter on Reconciliation-offices, and that on Advocates, &c.

[* ]Take, for instance, the case of libels under the English law: an offence of which there is no definition by law, against which in fact there is no law, but of which the definition, as far as it is to be collected from judicial practice, is the publishing anything concerning a man, whether in a private or public character, which a man would not like to have published concerning him. If ever newspaper was a libel, so is perhaps every newspaper that was ever published, not to mention books of politics, biography, history, and so forth. By the same law there are as many libellers as there are writers, readers, and repeaters of newspapers. Were this pretended law to be but half executed, what would be the consequence? The people remaining out of jail would not be enough to guard those that were in. Suppose, then, a man vested for life with the exclusive power of prosecuting for libels at the public expense:—the king has neither the power nor the wealth that this man might have if he thought fit to stoop for it. Suppose the execution of the laws against religion, as they stand at present, given to him upon the same terms. The number of catholics, presbyterians, and other non-believers in the infallibility of the church of England, would give the exact number of his slaves.

In London, the extorting money by threats of accusation, true or false, in a case where suspicion without proof is ruin, is a trade but too well known. The wretches who carry it on, do so at the peril of exemplary punishment. The magistrate invested with the powers here in question might carry on the same sort of trade to any amount, in full security, and without being confined, as those wretches are, to the choice of the offence. People about him might sell his connivances with or without his knowledge; as the servants of an ambassador smuggle in their master’s name. From this great officer, connivance would be a complete protection: whereas, in dealing with those malefactors, a license from one set affords no security against another. There have been times, and those not very remote, when a clandestine tax upon marriages deemed incestuous afforded a regular revenue to the retainers of the courts called Ecclesiastical. Safety as well as success was secured to this species of extortion, by what may be reckoned a very loose kind of monopoly, in comparison of the strict and perfect one now before us.

[* ]The great check upon this power is the right reserved to individuals of claiming satisfaction for the private injury. So far as this extends, secret connivance on the part of the public prosecutor is impossible. This accordingly is the circumstance which, under the old system, prevented the dispensing power from being pushed to such a degree as to excite any general and notorious dissatisfaction. But this check reaches no farther than to offences affecting particular individuals: it extends not to such as are of a purely public nature. Here, then, was the sphere within which the arbitrary dispensing power found room to display itself. An offence better alluded to than named, and which, though it appears to be much more common in France than in England, is frequently punished in the latter country, and for many years back scarce ever, if at all, in the former, seems to afford an instance of the exertion of such a power. As to the propriety of such a connivance, is out of the question here: but the fact of such connivance will serve as one instance, amongst many others which doubtless might be found, to prove that the notion of the actual exercise of such a dispensing power, and that to such a degree as to despoil a law of almost the whole of its efficacy, is far from a chimerical one.

[* ]The word witness is used indiscriminately with reference to two very distinct and distinguishable situations: that of a man who actually saw, heard, or in one word observed so and so; and that of a man who avers, deposes, narrates, in a judicial way, that on such or such an occasion he made observation as above. In the first case he may be styled an observing or percipient witness; in the other, a narrating or deposing witness. The thing to be wished is, that every one who has been an observing witness, with regard to the matter in question, should, as far as there is need of his testimony, become a narrating witness: and that at any rate every man, without exception, who becomes a narrating witness, should have been an observing one so far as he narrates. In as far as he fails of being so, he becomes a false witness: and, if what there is false in his narration is accompanied with the consciousness of its being so, and has been given upon oath, a perjured one. The assistance, then, which is really wanted, the assistance which the law by this means endeavours to obtain, is that which he who has been an observing witness lends, by becoming a narrating one.

The expressions testis oculatus, an eye-witness, an ear-witness, and all others which refer exclusively to a single one of the five senses, are so many partial and impartial expressions of this idea.

[* ]Seventy thousand catholic dissenters, added to two hundred thousand presbyterians and other protestant dissenters, are to join in first subduing and then oppressing, eight millions of church of England men. So irrational are the principles of these heretics, that their prevalence is the greatest calamity that can befall the nation. So rational are they at the same time, as well as so concordant among themselves, that they want nothing but fair play and the liberty of being heard upon equal terms, to gain the majority of churchmen, and make them either catholics, or presbyterians, or independents, or quakers, or all at once. To prevent a catastrophe thus horrible and thus imminent, the whole body of these heretics are to be kept in a state of slavery, collectively and individually, with regard to the whole body of the orthodox. The former are to be, with regard to the latter, precisely what the Helotes were with regard to the Lacedæmonians. Every man of the one class is to have it in his power at pleasure to devote to ruin every man of the other, whenever he happens to be in a mood for it. Upon such terms, and upon such terms only, the church is safe.

[* ]I forget what English statutes I have observed, adopting, as it were, and fomenting the vulgar prejudice.

[* ]Among the preambles to the French edicts, there are some which contain a little more information; witness that of the excellent Turgot, an edict for the liberty of the corn trade. Even that, however, would not have been the worse, had the reasoning been a little more pointed, and less diffuse.

[† ]That which extended to the kindred of a malefactor the infamy attached to certain crimes, or rather to certain punishments, and made incapacitation with regard to offices the consequence. The case here alluded to is that of a man of the name of Agasse, capitally punished for forgery; whose innocent relations were in this very view promoted immediately to honourable offices, by the citizens of Paris, under the eye, and with the approbation of the National Assembly. See the public prints of the month of 1790.

[‡ ]In the Chapter on Appeals, Ch. IV. § 3.

[* ]As to the English law, in some instances it gives costs, in others not: but the costs, when it does give them, are taxed costs: and wide is the difference between taxed costs and real. To obviate the deficiency, in some instances it gives double, in others as far as treble costs: but judges, setting themselves above law, have turned this providence into waste paper. Divines have one sort of arithmetic: lawyers have another. In the ecclesiastical, three tell but for one: in the legal, they rise to one and a half.

What, again, are the cases in which costs are mostly given? Cases of offences prosecuted by qui tam and other penal actions, in which the king is not named as plaintiff: to which head belong a large denomination of offences of a purely public nature; mostly of comparatively small importance. What are those in which costs are never given?a Cases termed in law-jargon felonies: consisting principally of thefts, robberies, murders, and other private offences, which, by reason of the magnitude of the mischief, are raised to the rank of public ones. This for a sample: for the single subject of costs, and that treated but partially, has furnished out a volume. Whence this difference? Because in cases of the former stamp, there being no private interest to form a natural inducement, if the factitious discouragement were not thus far removed, there would be no hope of finding prosecutors: in the other, the injury coming home to individuals, the law trusts to their paying thus dear for vengeance. Under the reason found by Blackstone for denying to the injured individual every branch of satisfaction except this melancholy and barren one, indemnification may doubtless be included with as much propriety as any other. Satisfaction in these cases ought not to be looked for by the injured, “the satisfaction to the community” (that is, the satisfaction of seeing a man hanged or transported) “being so very great.” [Comm. IV. 1.] When a man has money due to him, is it then really the same thing to him whether he himself gets it, or the exchequer? Try the invention upon the authors: assign over in like manner to the exchequer the fee of the advocate, and the salary of the judge. Another objection is yet behind. In cases of delinquency, the king is prosecutor: and to receive money is “beneath the dignity” of this first magistrate, when he has done any thing to deserve it. But in these same cases the individual injured is prosecutor: therefore he is the king; it is therefore “beneath his dignity” to receive money on this score. Ib. II. 24.

[* ]In the list of private offences raised to the rank of public ones (see above § 4, note *, p. 391.) such as, by the punishment annexed to them, it has comprised under the name of felonies: theft, defraudment, robbery, homicide, for example. Penal justice is by this means a kind of trap in which honest men are caught, in their pursuit of malefactors. The injurer is ruined by the sentence, the party injured by the expense of purchasing it. Were prudence and knowledge to prevail over passion and ignorance, the law would in these cases, as in so many others, be a dead letter. What scanty measure of efficacy is possessed by the main body of the laws, depends in no small degree on the ignorance in which the people are kept with respect to the abuses of all sorts which compose the system of procedure.

If the offence happens not to have been raised to the rank of felony, though in its nature and mischief not in the smallest degree different from those that are (as is the case with various sorts of thefts and frauds,) the obligation to prosecute does not extend to it.

[* ]See above, § 5.

[† ]See the Court Calendar for a variety of useless places scattered over almost every branch of the judicial establishment. Which are the most perfectly so, may be seen by the names of lords, or the relatives or dependants or associates of lords—sure indications of enormous pay in return for perfect idleness.

[‡ ]As few or none would be for making use for any constancy of such a seat, the number of such tickets might be considerable, and even indefinite: the holders of them having the advantage of all others for the seats in question, and among themselves taking rank and preference according to priority of dates. The highest reward of this kind would be a seat in the assembly of the legislature.

Restrictions of this nature, though not relative precisely to the same place, nor conferred on the same account, were known among the Athenians under the name of οϐο[Editor: illegible character]δϐια; in French, préséance. I know no word that exactly answers to it in English. Precedence, refers not to sitting, but to procession.

[∥ ]See Introd. to the Principles of Morals and Legislation, Vol. I.

[* ]Here, as elsewhere, let us blame establishments, which alone, and not individuals, are justly blameable: for individuals are what the laws have made them. Rare and thankless justice! for the objects of jealousy and enmity are individuals; establishments, in spite of all their faults, often by reason of their very faults, the objects of fondness and admiration:—and that in proportion to their antiquity; that is, to the inexperience and ignorance of their authors. The attorney-general, were his love of the public ever so passionate, could scarcely be more the servant of the public than he is. Paid, not by salary, but by fees, he cannot stir a step beyond the ordinary track of office, without subjecting himself to imputations, which could not be pronounced unreasonable. In an officer thus circumstanced, increase of duty would be increase of peculation. Prosecute, he cannot, of himself, in any case, but at the expense of his fortune: promote an order to himself to prosecute, he cannot, at least in any novel instance, but at the risk of his reputation.

[* ]As to the English law, in some instances it gives costs, in others not: but the costs, when it does give them, are taxed costs: and wide is the difference between taxed costs and real. To obviate the deficiency, in some instances it gives double, in others as far as treble costs: but judges, setting themselves above law, have turned this providence into waste paper. Divines have one sort of arithmetic: lawyers have another. In the ecclesiastical, three tell but for one: in the legal, they rise to one and a half.

What, again, are the cases in which costs are mostly given? Cases of offences prosecuted by qui tam and other penal actions, in which the king is not named as plaintiff: to which head belong a large denomination of offences of a purely public nature; mostly of comparatively small importance. What are those in which costs are never given?a Cases termed in law-jargon felonies: consisting principally of thefts, robberies, murders, and other private offences, which, by reason of the magnitude of the mischief, are raised to the rank of public ones. This for a sample: for the single subject of costs, and that treated but partially, has furnished out a volume. Whence this difference? Because in cases of the former stamp, there being no private interest to form a natural inducement, if the factitious discouragement were not thus far removed, there would be no hope of finding prosecutors: in the other, the injury coming home to individuals, the law trusts to their paying thus dear for vengeance. Under the reason found by Blackstone for denying to the injured individual every branch of satisfaction except this melancholy and barren one, indemnification may doubtless be included with as much propriety as any other. Satisfaction in these cases ought not to be looked for by the injured, “the satisfaction to the community” (that is, the satisfaction of seeing a man hanged or transported) “being so very great.” [Comm. IV. 1.] When a man has money due to him, is it then really the same thing to him whether he himself gets it, or the exchequer? Try the invention upon the authors: assign over in like manner to the exchequer the fee of the advocate, and the salary of the judge. Another objection is yet behind. In cases of delinquency, the king is prosecutor: and to receive money is “beneath the dignity” of this first magistrate, when he has done any thing to deserve it. But in these same cases the individual injured is prosecutor: therefore he is the king; it is therefore “beneath his dignity” to receive money on this score. Ib. II. 24.

[a]Unless in particular cases, by a particular statute (25 Geo. II. c. 36; 18 Geo. III. c. 19,) in the way of discretionary charity to suppliants.