Front Page Titles (by Subject) CHAPTER VIII.: MAXIMS CONCERNING REFORM, DEDUCED FROM THE ABOVE LETTER. - The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)
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CHAPTER VIII.: MAXIMS CONCERNING REFORM, DEDUCED FROM THE ABOVE LETTER. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 5.
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MAXIMS CONCERNING REFORM, DEDUCED FROM THE ABOVE LETTER.
The Maxims themselves.
The subject of reform being at present on the carpet, and a variety of opinions afloat, a few maxims or aphorisms, half a dozen or thereabouts, and containing the substance of so much of the above learned dissertation as regards that subject, may, perhaps, in these unsteady times, be found not altogether out of season.
Lest the eye of the reader’s mind should find itself incommoded by too strong a blaze of light bursting in upon it at once, to prepare it for the brilliancy of the more grand and comprehensive principles, I place in front a rule or two, confined in their extent to the only subject that belongs directly and necessarily to these pages—viz. the institution of special juries:—
1. When, for the execution of a plan repugnant to the acknowledged principles of the constitution, and to the equally acknowledged injunctions of an act of parliament, 48 persons have been selected, of whom, for the insuring the success of that plan, 12, or upon occasion a single one, are in every individual instance sufficient, the faculty of discarding 12 out of the 48 will, if lodged in proper hands, be, in every such instance, sufficient to defeat it.
For (says the Lincoln’s-Inn letter) “one circumstance . . . . must remove all suspicion on this subject: . . . . Special juries are struck under an order of the court only . . . . so that it must be the fault of the defendant’s own solicitor, if he does not obtain a respectable list for the trial of the issue.”
2. If, in the instance of a set of men of whom (except their being in possession, each of them, of a portion of property which may be insufficient for the maintenance of any one of them) nothing more is known than that they are, all of them, pensioners during pleasure under the authority on which theirs was intended and is said to serve as a check—if, in the instance of a set of petty placemen so circumstanced, there be any cause of apprehension, lest, on any occasion, they should manifest, as towards that authority, a degree of obsequiousness inconsistent with probity and independence—in such imaginary case, a sort of sanction which, as often as any real difference of opinion has had and continues to have place among them, is trodden under foot, would, as against such danger, or cause of apprehension, afford a sufficient security.
For “I do not” (says our learned adviser) “mean to insinuate, that even such characters, acting upon oath, are likely to do wrong:” “such characters,” viz. persons who, by this same learned gentleman, have just been described as “persons who from low situations in life have crept into a little independence, and by artifice and collusion with the inferior officers, get their names placed upon the freeholders’ list, with a view principally to their adding to that independence by the fees payable for their serving on special juries.”
3. If, in the whole expanse of the all-perfect system, it were possible that a particle of imperfection should anywhere be found, the imputation, in so far as it were just, would fall—no part of it on the most powerful, every part of it on the least powerful, of all the classes that could be found concerned in it: no part of it upon those under whose eye, and by whose authority, everything is done that is done, every part of it on those whose dependence on that authority is complete and absolute.
Accordingly, in the instance of the only reform, which is represented as lying within the power, of the only person in whose instance any inclination to that effect has been perceptible, the “reform” suggested consists in the “expunging the names of all such persons who from low situations in life have crept into a little independence.” Thus far the suggestion of the learned reformer: for the due understanding of which, it is necessary to be considered, that the consequence would be (nothing less being sufficient to insure its continuance,) that if in numbers sufficient for the purpose, persons sufficiently adapted to the purpose were not found remaining, other persons of the necessary complexion, and in sufficient number, would of course be taken in to fill up the gap.
4. Every man—so he be high enough—is a proper—and except others seated on the same level, and linked with him in the bands of the same interest, the only proper—judge in his own cause.
Accordingly, as we have seen, “it is the proper province of the court above,” (says our learned reformer who dates from Lincoln’s-Inn) “to interfere and introduce a reform.”
5. The hands by whose industry abuse has been created—by whose steadiness it has been preserved—and by which, whether created or only preserved by them, the profit has been, and continues to be, reaped—these are the hands at which the extirpation of it is to be sought.
6. When, for example, as long as he has been sitting on his bench, a judge has been in the habit of treading under foot, with open eyes, the authority of parliament, the judge himself is the proper authority to apply to, if you would have him cease doing so; parliament, not.
For the letter, in which the Lord Chief Baron’s determination to persevere in that same habit had been deliberately declared, makes one of “the three letters with the perusal of which” (says this learned gentleman to the sheriff) “you have favoured me.”
Corroborations from Lord Eldon’s Scotch Reform.
Such are the articles, which, in substance and effect, though not in words (for words are ever under the command of existing circumstances) constitute, so far as the most probable interpretation, or, as lawyers say, construction, which I have been able to find for the learned words in question may be found to be correct, part and parcel of this our lawyer’s creed.
I might have said the lawyer’s creed: for, as already intimated, with here and there a possible exception, too rare at any rate to be to such a purpose worth noticing, being all bred in the same learned school, all cast in the said learned mould, whoever sees one learned gentleman sees all: nor are these articles of the number of those, which, to obtain acceptance and adherence, require signature.
Thus much must be confessed—viz. that as yet it is only in so far as the individual learned mind in question can, with propriety, be deemed and taken as and for a fair sample of the genus, that the propositions in question can in their herein alleged character of articles of the lawyer’s creed, be with propriety received as genuine.
In that same character, as far as concerns reform of law abuses, can the genuineness of these articles find any man still sceptically enough disposed to doubt of it? Let him turn to the list of Commissioners for the Reform of Scottish Judicature. (See Report of their proceedings as printed for the use of the House of Commons, in pursuance of an order dated June 9, 1809.) Let him see with what religious care the name of every person is shut out, on whose part any the least desire to see defalcated any the least particle of abuse from a system composed wholly of abuse, had ever been perceptible; while those of the maintainers and defenders of the whole system are with correspondent carefulness collected and inserted.
Taking, for the basis of his calculation, the number of two-and-thirty reapers, let him admire and calculate how rich a harvest of reward is destined to be reaped by learned industry, occupied in the field of reform, in the accustomed course of learned husbandry.
From what they have done already, let him calculate what they are about to do. Let him pray—if haply into his religion be admitted any particle of regard for the welfare of the people, and the ends of justice—let him pray, that the ministers of such justice may, in the sense most beneficial to the country, be prevented in all their doings; that what has been begun in doubts may be continued and ended in the same; and that of these doubts, the distribution of the matter of reward throughout the mass of learned merit, may, as being to the country the least bitter, be the only fruit.
Let him behold in idea, and, if so it please him, in black and white, a judicatory,* in which a business occupies as many years as, in another sitting by the side of it,† the same business would occupy hours, or perhaps minutes, and these learned persons not hesitating to attach their signatures to an opinion that “the present forms are now, or by the authority of the court may easily be rendered, fully adequate for the purposes of justice and dispatch of business, without parliamentary interference,” (p. 4.)
Let him behold the signature of the author of Marmion annexed—not to a receipt for the profits of Marmion, but—to the produce of the learned labours of this constellation of learned commissioners, so worthy to have chosen the præses whom they chose—so worthy to be chosen, as in fact they had been chosen, by that præses.
Let him give thanks, that, to his other offices, the author of Marmion does not add that of calling up the late Earl, in the forenoon or the afternoon, and telling him what to do, as soon as official advice has been received that the enemy is within his lines.‡
After reading, as above, the history of the appointment and proceedings of the commissioners, let him, among the speeches of the Edinburgh advocates,∥ under the name of the author of Marmion, read a rhapsody of irrelevant buffoonery, in which he will not find a serious word, except what is employed in passing undiscriminating condemnation on every imaginable alleviation of judicial abuse: including, in such his condemnation, everything which the noble and learned institutor of this commission either has given it him, or, unless it were in whispers, could have given it him, in charge to promote.
In these public documents, including the above-quoted probationary ode in prose, which, if Lord Ellenborough’s ridicule-proscribing branch of libel law were applied to it, would be from beginning to end a libel—in these howsoever libellous as yet unpunished documents, having read what Lord Eldon intended should be done, and having predicted (as any man may do without the gift of prophecy) what will be done, let him give thanks, that no one of Bonaparte’s dukes is as yet known to have been invited over to replace the Duke of York: and that if, by that noble and learned oracle of the cabinet, advice to any such effect has ever really been given, doubts, of the nature of those clouds, which never cease to exhale from the same ever-pregnant source, continue for the present to hang over it.
Accordingly, amongst similar articles of information furnished by those same papers, may be found this (p. 4): viz. that, “at a general meeting,” (in Edinburgh) at which “the judges of the Court of Session were invited to attend . . . . several of the judges (18th March 1809) assisted . . . . when the meeting finally resolved, that . . . . the present forms are now, or by authority of the court itself may easily” (as easily as they always might have been) “be rendered fully adequate for the purposes of justice and dispatch of business, without parliamentary interference. And . . . . that the late division of the court . . . . has . . . . for the present removed the necessity of any further innovation upon the forms and constitution of the court.”
Finally, let him give thanks, if so it be that no commission of review or revision has as yet passed the seals, directed by his Majesty to his trusty and well-beloved James Crawfurd, John Brickwood, Allen Chatfield, John Bowles and Alexander Baxter, Esquires, nominating and appointing them to review and revise, and finally to audit and pass the accounts of them the said James Crawfurd, John Brickwood, Allen Chatfield, Alexander Baxter, and John Bowles.
[* ]The Court of Session.
[† ]The Small-debt court.
[‡ ]Exactly as it stands, this paragraph was written on the 12th of July 1809: being some days before the sailing of the Walcheren expedition.
[∥ ]Delivered March 1807. Published by Constable and Co., Edinburgh; and Murray, London. “The loser . . . . (he is there made to observe) must be disobliged at the issue of every cause . . . . . The winner . . . . sometimes . . . . thinks his conquest dear bought . . . The lawyers . . . . were often irritated, that the court did not see with their eyes . . . . Hence the sallies of satire and of scandal . . . . And to these joint causes he was willing to ascribe much of the supposed clamour of the country . . . . and not to any material defect in our present system . . . .” Thus far the far-famed poet: whose modesty, when confessing himself “somewhat abstracted from professional pursuits,” (ib. p. 48,) could not save him from being selected by Lord Chancellor Eldon to carry the above avowed opinions into practice. Not any material defect in the system!—in a system to which alone the English system is indebted, for not being perhaps the most profligate system that ever was devised, for tormenting and pillaging men on pretence of justice!