Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow CHAPTER III.: HUMBLE PROPOSAL FOR RESTORING THE AUTHORITY OF PARLIAMENT. - The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)

Return to Title Page for The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)

Search this Title:

Also in the Library:

Subject Area: Law

CHAPTER III.: HUMBLE PROPOSAL FOR RESTORING THE AUTHORITY OF PARLIAMENT. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions) [1843]

Edition used:

The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 5.

Part of: The Works of Jeremy Bentham, 11 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER III.

HUMBLE PROPOSAL FOR RESTORING THE AUTHORITY OF PARLIAMENT.

§ 1.

Unless the Authority of Parliament be vindicated, Package cannot be abolished.

I come now to the second of the political disorders here in question, viz. the contempt—the habitual and undisguised contempt—manifested by judges, and other subordinate functionaries, as towards the authority of parliament: or rather (for in this consists the malignity of the disorder) the connivance—the habitual and unvaried connivance—by which this contempt has been encouraged and confirmed.

On this head, a conception that will naturally present itself to everybody, and at the first glance, is—that the present is of the number of those occasions in which the difficulty consists—not so much in determining what it is that is proper to be done, as in engaging men to do what is proper to be done, whatsoever it may be.

To the justness of this remark I can find nothing to oppose: accordingly, of the two following sections, the business of the first is—to do what can be done by so weak an instrument of communication as the present, towards holding up to view the flagrancy of the disease: of the other, to present to view, and in a specific shape, what seems to be the proper remedy, penetrated all the while with the clearest and acutest sense of the minuteness of the chance in favour of its being applied.

This, bitter as it is, is a cup which cannot be put by. Package, it is true, constitutes that particular abuse which is the object—the only direct object—of the present work. But so intimate is the connexion between this disorder, and that which consists in the habitual contempt of parliament, that while this radical weakness remains uncured, any remedy that can be applied to the derivative malady will either be from the very first inoperative, or, at the very best, will in a short time cease to operate. If the authority of parliament had not been set at nought by judges, the package of juries could not have been established, much less, as we have seen it, openly defended: and while parliament continues, as it has done, to suffer its authority to be thus set at nought, in vain would it endeavour to put an end to this package: juries will, as at present, continue to be packed. To apply to this abuse the only possible remedy—I mean, the only possible direct and special remedy—it would be necessary that parliament should make a fresh law: but if, when the fresh law has been made, judges continue determined to deal by it as judges have done hitherto by the existing ones, viz. to disobey it—and parliament to do as parliament has done hitherto, viz. to sit still, and, without a thought of giving effect to its authority, see itself disobeyed, the trouble of making fresh laws, under the notion of applying a remedy to the other abuse, may as well be spared.

§ 2.

Contempt put upon the Bill of Rights, by the Lord Chief Baron’s Package.

As to the statutes, which bear in detail upon the subject of juries, and even in respect of the clauses in question thought to bear upon special as well as common juries, these, it is true, were, on the occasion in question, by the learned judge more particularly in question, viz. the Lord Chief Baron, violated in intention only, and not in effect: special juries having, by the fraud of the learned penman, been exempted, as we have seen,* from those provisions against corruption, the demand for which was so much more urgent in that case than in the instance of common juries.

But though, in the manner that has been seen, the contempt entertained by this pre-eminently learned person (not to speak at present of any other pre-eminently learned persons) as towards the authority of parliament, failed by accident and by misconception to fall upon these statutes at which it was principally aimed, it fell, as we shall see, without accident, upon another statute, I mean the statute commonly called the Bill of Rights.†

On looking into this much-vaunted law, and in particular into those parts of it which bear upon the subject here in question, the weaknesses betrayed in it are seen to be such as cannot be thought of without regret; the imbecility, if not the treachery, of the learned penman, in whom the unlearned found themselves, as usual, under the necessity of reposing their confidence, being, on the face of it, but too distinctly visible: propositions, of the cast termed by logicians identical, fit only for the mouths and pens of drivellers: propositions which, neither conveying instruction nor imposing obligation, leave everything exactly as they find it: propositions declaring that what is right ought to be done, and what is wrong ought not to be done, and so forth.

But this weakness, though to a lover of the English constitution it cannot but be matter of regret, will not, to the pre-eminently learned person in question, afford any thing like matter of excuse. For to this so much vaunted law—to this law, as to everything else that bears the name of law, some meaning must be found: and to this law, viz. in respect of that clause in it which is here in question, no sooner will any meaning be found, than what will also be found is—that by this pre-eminently learned person, it has been violated.

In the section in question (§ 2,) two parts may be distinguished—the historical and the legislative. In the historical, the principal abuses of the then late reign are related under twelve heads; in the legislative, under an equal number of heads, the repetition of these same abuses is, to wit, by a declaration made of their illegality, reprobated.

In the historical part, of the only article which touches upon jury-trial, being the article which is numbered 9, the words are as follows:—“9. And whereas of late years partial, corrupt, and unqualified persons have been returned and served on juries in trials (and particularly divers jurors in trials for high treason, which were not freeholders.”)

In the legislative part, in the only article which touches upon this same subject, being the article which is numbered 11, the words are as follows:—“11. That jurors ought to be duly impanelled and returned (and jurors which pass upon men in trials for high treason ought to be freeholders.”)

In each of these two articles, there is a clause which does not bear upon the present subject; viz. that which speaks of high treason and freeholdership. Of the clause which does bear upon this subject, it must once more be confessed, that, if it be not sad treachery, it is sad dotage,—“that jurors ought to be duly impanelled and returned;” viz. that what in this case ought to be done, ought to be done.

In relation to the subject here in question, the law having thus in itself no meaning, to find a meaning for it. we are sent to history—to the history of the times. Consulting history, a fact that we find in every book of history that touches upon those times, is—that in the two reigns then last preceding, juries used to be packed; that is, that, instead of being left to a mode of selection, which, with reference to the crown, its dependent judges, and its other instruments, would have come under the name of accident or chance, the persons serving as jurors were determined by choice; viz. by the choice made of them by these same instruments. The choice having for its notorious object the causing unjust verdicts to be delivered, persons, who either of themselves were “partial,” or were made so by being made “corrupt,” were taken for the objects of such choice, and, if they were not found so, were made so, by that choice.

That in the exact bulk to which it has been swollen, and in the exact shape into which it has been, by our pre-eminently learned artist, moulded, the abuse relative to juries was not in the contemplation of the framers of those clauses, must I think be confessed: perfection, such as this which we have seen realized by Lord Chief Baron Macdonald, outstripped—not only the observations made by the Maynards, the Somerses, the Hawleses, the Pollexfens—but the most sanguine hopes of the Scroggses and the Jefferieses with their Et cæteras of those times.

But what, on the other side, cannot, it is supposed, be very easily denied, is—that, in the major abuse of these our maturer times, the minor abuse of those immature times is included. The abuse of those days was, that after hard labour bestowed upon the matter on each separate occasion, persons, who were found or rendered “corrupt”—or in some other way “partial,” were on great occasions now and then “returned,” and made to “serve on juries in trials.” The abuse of these days is—that, under the arrangements made—made and in despite of remonstrance persevered in—persevered in either for that purpose or for none at all, persons are on all occasions, great and small, caused to be “returned,” and to “serve,”—persons such as, by the permanency with which they are invested, and the habitual, but ever withholdable bribes, with which they are fed, cannot but have been rendered “corrupt”—corrupt to a degree of corruption, of which, as surely as by any “partiality” it could be made to be, injustice is, upon every desired occasion, the habitual consequence.

In vain would his Lordship say—Those whom I have caused to be “impanelled and returned,”—as you would say, not “duly impanelled and returned,”—are not jurors: they are in effect commissioners, and members of a standing board of my own framing—persons whom, into the box which ought to have none in it but jurors, I have so managed as to introduce, under the name of jurors. Those whom you take for jurors—those whom I have thus “impanelled and returned” under the name of jurors, are not jurors; and therefore, in causing them to be “impanelled and returned,” even though it should not be duly impanelled and returned, I have not offended against the Bill of Rights.

“My intention was not to ‘maim and disfigure’ the man—my intention was to kill him: and therefore, if you punish me as for maiming and disfiguring him, you punish me without law.” Such was the plea of a very ingenious as well as learned person, a Mr. Coke, who, on the act of 22 and 23 Car. I. c. 1, was indicted for the maiming and disfiguring of a Mr. Crisp—“What I am accused of intending to do is the committing the lesser crime: what I really intended to do is only a greater crime, in which the other is comprised.” This plea did not avail Mr. Coke, and as little, if there be anything like justice in the country, will it avail the Right Honourable Sir Archibald Macdonald.

But (says somebody) as one swallow suffices not to make summer, so one act suffices not to make a habit. What, in this particular instance, was done, may not perhaps have been altogether justifiable; but, if for the express and sole purpose of correcting this error, so it should come to pass that a fresh law were made, can you, by this one instance of irregularity, hold yourself warranted in apprehending that a law so made would not be obeyed?

I answer, Yes: even by this one instance, the disobedience being so deliberately and determinately, and after such warning and remonstrance, and upon such principle as have been avowed, persevered in. But, of the existence of the habit, and my expectation of the eventual continuance of it, it is on this one act alone that I ground myself; and, to render it manifest, and beyond all possibility of dispute, that the contempt put upon parliament is determined, and rooted in a sort of principle, I proceed to bring to view, out of a countless multitude that might have been produced, another instance or two, such as either the matter of the present inquiry, or chance recollection, has happened to throw in my way.

§ 3.

Recent Contempt of Howard’s Act by the Detention of Acquitted Prisoners.

To enumerate all the instances in which the symptoms of the disorder in question have exemplified themselves, would require a volume. Of the example which here follows, the particular use is—to show the obstinacy of the disease: and it is only by casual symptoms, brought to light by rare occurrences, such as accident may not either bring to light or so much as give birth to, twice in half a century, that this quality in the disease can have been made manifest. In the books, the contempt—the simple contempt—may indeed be seen breaking out continually;—but it is only by extra-judicial conversations or correspondences, that the obstinacy of it could have been displayed in its genuine colours.

By obstinacy on one part, energy on some other part, and acting in an opposite direction, is implied. But in any court of judicature, on the occasion of a cause, no such energy ever has been known to be, or with any colour of reason could be expected to be, displayed. On the occasion of a cause, the only sort of person by whom any such quality as energy can in any direction be displayed, is an advocate. But, from the advocate, whose contention is before and under the judge, not with and against the judge, at belonge not to the station of the judge to experience any thing like adverse energy. One common interest—one and the same sinister interest—links them together in indissoluble bands. Accommodation to indolence, gratification to vengeance, unmerited reputation, sinister emolument, lawless power,—whatsoever of all these good things the judge holds in possession, the advocate beholds in expectancy. The weakness of the legislature constitutes the lawless power of the judge: and the present power of the judge is the future power of the advocate. With the legislator, his supposed superior, the judge never comes in contact: from the legislator he knows not what it is to experience resistance. The legislator makes laws: and the judge, according as it happens to them to suit or thwart his views, gives effect or inefficiency to them, as he pleases. In parliament, be his rebellion ever so flagrant, he beholds neither inspector nor denunciator, much less an avenger: two sorts of men alone does he behold there—admirers—ignorant and awe-struck admirers—or accomplices or abettors.

Thus it is that the king—I mean the king in parliament—being sunk into a King-Log, not only the great bull-frogs, but the meanest tadpole, views his humiliation with complacency, and beholds in it a source—an inexhaustible source—of power, impunity, and triumph for himself.

Evidence of obstinacy in one quarter requires, as above, and supposes, energy, adverse energy, in another: on the particular occasien here in question, thus it is that, government being in this country in the state above described, the energy necessary on one side, and consequently all manifestation of obstinacy on the other, might have been wanting for any number of additional ages, had it not been for the till-now-unexampled union of public spirit and intrepidity—well-directed public spirit and persevering intrepidity—in the person of Sir Richard Phillips.

Materials I have none, over and above those which have already been laid before the public by himself: but in his work they stand mixed with other matter in abundance: and, for displaying their importance with relation to the design of the present work, observations have been found requisite, such as could not have come, with equal propriety, from any person, by whose testimony the facts themselves were furnished.

In regard to the degree of credit due to it, one very short observation may suffice. A twelvemonth and more has elapsed, since his statements on this head have been made public, and in all this time not a syllable of contradiction has appeared from any one of the official persons whose conduct and language is here in question. One of two things: either he contradiction could be given—or, in the style of the pre-eminently learned judge, to give it was not thought “worth while.”

Judges publicly charged, and by a functionary, himself in “high,” however subordinate “situation”—charged with disobedience—wilful disobedience, to parliament: and in their estimation so trivial the imputation, and the opinion of its truth so unproductive of all cause of uneasiness or apprehension to themselves, that whether it prevail or not is to them and their feelings matter of indifference. This being the state of judicature, in what a state is government!

The case that gave occasion to this display is as follows:—

By the statute 14 Geo. III. c. 20, § 1, as copied by Sir Richard Phillips, it is enacted, “That every prisoner charged with any crime, or as an accessary thereto, against whom no bill of indictment shall be found by the grand jury, shall be IMMEDIATELY set at large, in open court, without the payment of any fee,” &c.*

Of an enactment thus clear and explicit, the habitual violation is, in a memorial addressed to the Recorder of London—couched in the most respectful terms, dated the 3d of November 1807, and presented in the names and with the concurrence of both the sheriffs—presented to the notice of that learned judge on the 3d of November 1807. For eleven days no answer. On the 14th of the month (no answer yet received) follows, in the form of a note, an address from Mr. Sheriff Phillips alone, to the same learned gentleman, for the declared purpose, indeed, of “reminding him” of the above paper, but again in the most cordial as well as uniformly respectful terms.

The season of delay was now past: now comes the season of promptitude, at least, if not of precipitation.

A few hours brought to Sir Richard an answer, from which, what belongs indispensably to the present purpose (not to touch upon matter foreign to it,) the following is an extract:—

“As the commission of gaol delivery at the Old Bailey is constituted of the highest, and of all the law authorities in the kingdom, the twelve judges of England, the whole magistracy of the city, besides other great and respectable names therein, Mr. Phillips, upon consideration, will surely see how indecorous it would be in the Recorder of London to discuss and argue of the power, authority, and practice of that court, with one of the sheriffs, who, however privately esteemed and regarded by the Recorder, is, with respect to that commission, but an officer and minister of the court.”

Business, at least where the public has an interest in it, does not, we shall see, linger with Sir Richard Phillips. Not after an interval of eleven days, but on that same day, in reply goes another note from him to the same learned judge, always in the same style of unvarying respect, but expressing “his earnest hope” that the necessary measures would be taken for paying obedience to the law; and stating, amongst other matters, “that he understood, in a late conversation with Lord Ellenborough on this very subject, that points of practice in the Old Bailey court rest chiefly, if not entirely, with the Recorder, as the law-officer of the corporation.”

Thus, had it depended upon Mr. Recorder, would have ended the whole business. Fortunately, “within a few weeks after,” the sheriff, as he tells us, “had an opportunity of pressing the subject again on the notice of the Recorder, when (continues he) he peremptorily told me, that he never would consent to the alteration in the practice of the court which I proposed, and as long as he lived, it should continue as it is.”

Thus far Sir Richard Phillips. As to Mr. Recorder of London, for my own part, if with any propriety I can be said to have any personal acquaintance at all with that learned judge, it is of no other sort than what, as towards him, would tend to cherish in my mind those sentiments of respect and regard which were so uniformly manifested towards him by Sir Richard Phillips.

But, though a very obscure and insignificant person, I have the honour to be a British subject. I say subject: for on that ground, rather than on so technical and narrow an one as that of freeholdership, do I choose to rest my claim. I am a British subject; and, in that character, I feel as strong an interest in the preservation of the English constitution, as any one can feel in the preservation, or even in the destruction of it. And, in consideration of this interest it is, that it seems proper for me to declare—that, although instead of being that great person to whom, by the description of points of practice, this part of the liberties of Englishmen is, it seems, “bargained, assigned, transferred, and set over by the twelve judges, he were my brother, my opinion concerning him would still be this, viz. that if it really were the case, that the continuance of the practice depended upon his life, the last day of that life would to his country be a most happy one.

A conspiracy of the twelve judges, with the Recorder of London at their head (for such it seems is the new order of things)—a conspiracy of the twelve judges with their ringleader the recorder, for mending the constitution of the country, by resisting, overruling, and treating with avowed contempt, the authority of parliament! Such is the state of things brought to view by this evidence. Such is the state of things which I would wish to recommend to the consideration, the serious consideration, of all such British subjects, if any such there be, in whose eyes the preservation of the constitution of the country is of more value than any share which, in the character of lawyers, or confederates with lawyers, it may happen to them to look for in the plunder of it.

“Mr. Phillips, upon consideration, will surely see how indecorous it would be in the Recorder of London to discuss and argue of the power, authority, and practice of that court with one of the sheriffs, who is but an officer and minister of the court.” No: if in any such argument Mr. Phillips could have seen anything indecorous, his view of the matter would, I will confess, have been very different from mine.

Indecorum in arguing, in relation to the point in question, the practice of the court? No: but something a great deal worse than indecorum in the determination—the obstinate and rebellious determination—to continue in such practice.

The House of Commons—yes, the House of Commons—there is the place, at which the discussion on this question should now be carried on. As to argument, of argument, of further discourse,—unless what as above is stated to have been his language, be not only in tenor but in purport denied to have been so—of further discourse, in any shape, on the part of the learned gentleman, there is no need:—hearing is for him the only ulterior function needful: hearing, his function—genuflection, his proper posture for the performance of it.

The inhumanity of the practice, its rank and barefaced injustice, the oppression thus heaped—heaped upon injured and established innocence—the contrast it makes with their principle of nullification—the instrument manufactured by their partnership for dealing out impunity at their own pleasure, and their own price—for dealing it out, not to merely possible only, but to convicted guilt* —all these are subjects which must for the present be discarded, as being foreign to the design of the present work, as well as of the present chapter. The subject which alone belongs to the present purpose is the subversion of constitutional order—the contempt—the wilful, the deliberate, the confederated contempt—of that supreme power, the supremacy of which is in words acknowledged, and in grimace bowed down to, even by themselves. Alas! by what terms can such enormity be expressed? The very language sinks under it!†

§ 4.

Parliamentary Operations proposed.

Under this head, a few short and compressed hints are as much as, if not more than, will be found “endurable,” especially under the Perceval dynasty, from a self-created censor, who has neither a coronet in his pedigree, nor so much as a place in the red book:—

I. Committee of Inquiry, to collect and report the facts.

Subject of inquiry—cases of disobedience to acts of parliament on the part of persons concerned in the administration of justice; limitation necessary, at least in the first instance, confining the remark to such cases in which misconception was impossible. No fear that by this restriction the work would be left without materials to operate upon. Without such restriction, the work would have no end.

To render the import of the restriction clear, an example or two will suffice. Cases which have more or less of arithmetic in them will in general be found to afford the clearest samples:—

1. One such has been brought to view already. Law, prohibiting the giving, on such or such an occasion, to a person of such or such a description, money to the amount of more than one guinea. Official transgression, on an occasion of that same description, to a person of that same description, sum given, two guineas.—(See above, Part III.)

2. Law, in a case therein described, giving to the successful party double costs:—official transgression—and here the office is judicial—giving, and that avowedly, instead of the double costs, single costs, with an addition of only half single costs. Acts of parliament, upon which contempt has been poured in this shape, are to be found in swarms: they are pointed out by the indexes.

3. Law, as above, giving to the successful party treble costs:—judicial transgression, giving, instead of the treble costs, single costs, with the addition of only three quarters of the amount of single costs. Another swarm of statutes, upon which the cup of contempt has thus been poured to the very dregs.

II. Parliamentary Resolutions.

The habit of transgression established, what shall then be done?

The least that can be done is for the House (I suppose it the House of Commons) to pass a string of resolutions, condemning the practice, and denouncing eventual punishment in future. Happily this house, in conjunction with the other, possesses, in the right of addressing the king for removal, a virtual power altogether adequate to the purpose:—“Resolved, that in case of any misinterpretation put from henceforward upon any act of parliament, by any judge or judges, should such interpretation be deemed wilful, this House will address his Majesty, praying the removal of such judge or judges.” After wilful, add, if necessary, “and not proceeding from error in judgment merely.” Something to this effect may serve as a sample. But to fix the meaning, and save it, if possible, from being explained away, an example or two, as above, if the law of the Medes and Persians would admit of any such innovation, might be of use.

As to retrospection in any shape, on this question, victory must, for any part I shall presume to take, be left as a prize to eloquence. Honourable gentlemen, according to whose theory bulls take a pleasure in being baited may try it upon judges.

If the measure they so freely mete to others,* were to be meted to them again (I speak of judges,) the question would be decided, and the benches cleared. But, in my own view of the matter, this measure, being in every application that can be made of it, a most false and mischievous one, it depends not upon them, by any use they can make of it, to make it otherwise.

§ 5.

Retrospective Censure, is it to be looked for?

The notion upon every occasion assumed and taken for granted among lawyers is,—that to the judges—meaning the twelve judges and the chancellor—acting respectively in one or other of their many and various spheres—belongs the interpretation—the uncensurable as well as unappealable, and thence the absolute and uncontroulable interpretation—of whatsoever goes by the name of law: viz. not only of that spurious sort of law, which, by the oscitantcy of parliaments they have been suffered to make—to make of themselves and for themselves—but also of that only genuine sort of law, which is made by parliament.

In certain cases indeed, but in certain cases only, the transaction being, in some shape or other, capable of being brought before the House of Lords, the conduct of these official lawyers may to some purposes be weighed by other hands, be weighed by non-learned hands. But forasmuch as where any judicatory, composed of any one or more of these thirteen potentates, is in question, every idea of censure is excluded; reversal, or modification of the judicial transaction, is the only purpose to which revision is considered as capable of being performed: and though, in point of right, non-learned lords cannot, on these, any more than on any other occasions, be avowedly debarred either from speech or vote, yet, in point of fitness and propriety, the very appellation thus incontrovertibly applicable to them, suffices to indicate, how incongruous, on these occasions, any interposition from so weak a quarter would be deemed—if not for the purpose of reversal or modification of the interpretation itself, at any rate for any such purpose as that of censure to be passed on the interpreters.

In the putting of any such interpretation, being still but men—(for this concession, such is their candour and humility, they may be depended upon for making)—in the putting of any such interpretation, they are liable to fall into error: but, be that error what it may, at least so as competency of jurisdiction be out of dispute, it never can be so much as censurable, much less punishable.

Now in this I cannot but behold a doctrine, against which, had I a hundred hands, I would protest with all of them, as being inconsistent with all government. Admit this, parliament is but a tool—a corrupt as well as a blind and passive tool—in the hands of lawyers and their confederates. Admit but this, transgression will be heaped upon transgression, till the whole power of the country, and with it, in due season, the whole property of the country, will be avowedly in their hands:—admit but this, sooner or later they will construe the whole money of the country into fees, as at one time the clergy were on the point of consecrating the whole land of the country into churchyards:—since, let them carry their usurpations, their oppressions, their extortions, to ever so enormous a length, they have never anything to fear—they have still everything to hope, or rather to make sure of.

Reading or thinking of those judges, whose sanction was lent to ship-money,—Ah! how innocent were those (a thousand times have I said to myself,) in comparison of these of modern times! How much more clearly was their transgression a transgression against the common welfare—against law as it ought to have been than against law as it then was! By what a host of precedents was it not sanctioned! And, when statute law is out of the question, of what stuff is law made, or so much as pretended to be made, if not of precedents?

§ 6.

No fresh Acts requiring Obedience to existing ones.

But above all things let us have no fresh law: I mean for the mere purpose of causing the existing ones to be obeyed: no enacting or re-enacting statutes; still less a declaratory act.

A declaratory act?—Observe the consequences. A falsehood committed: the supremacy of the king in parliament abdicated, surrendered: surrendered to the lawyers; and on so easy a condition—to them, of all mankind, so easy—as the employing false pretences in the exercise of it: pretending to have had “doubts,” where it is impossible they should have had any:—pretending to have put upon a word a meaning, which it is impossible they should have put upon it.

In the first place, a falsehood committed. “Whereas doubts have arisen . . .”—Doubts arisen? doubts about what?—whether immediately means immediately? Are lawyers the only persons who know what immediately means?—are all but lawyers ignorant of it? After this first falsehood—committed by parliament itself—after this falsehood, and by means of it, comes the abdication,—the surrender—and the endless train of falsehoods—falsehoods bespoken of judges, by an order so clearly given, and which with such regular alacrity would be executed.

Yes:—to make a fresh act would be actually to yield the point to the lawyers, to confirm the usurpation instead of checking it. It would be allowing them the very negative in question: the negative which, without as yet daring to claim it, they have been exercising: a negative, which they want but this allowance to exercise at pleasure, and at any time, upon all acts. Take at pleasure any one future act: the negative having (suppose) been exercised upon that act, the worst that could happen would be another act: which act, when passed, would be just as completely subject to their negative, as its predecessor was: and so toties quoties. By every such act, the uncertainty—“the glorious uncertainty of the law”—would receive fresh confirmation, and, if possible, fresh increase: the uncertainty of the law, and the certainty of ruin to every man, not above the common ranks of life, who, with the words of it before him, should be ill enough advised to ascribe anything like certainty to it.

Taking cognizance of a murder, and inflicting punishment accordingly, the judges of the Common Pleas, acting as such, would themselves be murderers, and as such punishable. This is what our men of law themselves have not scrupled to declare.* Why? Because in this purely ideal case, if the authors of the transgression are lawyers, so are they also who are to judge of it and to punish it.

Here then is a transgression on which, according to their own doctrine, punishment may attach, even though the transgressor be a judge, acting in his character of judge.

Allow then (says a loyal subject to these disloyal usurpers,) allow then, that where the law transgressed by you is a law of the king’s making—made by the king in parliament—allow that in that case, if, to the conviction of every man that sees the words of the law, your trangression has been a completely wilful one, you are not exempt from punishment,—allow but this, this is all we want of you. What we do not want is—to see you in any such posture, as that which, in the case of your own putting, you would figure in. But what we do want to see you in is—a kneeling posture—if not literally, at least figuratively:—kneeling, like one of king James’s parliaments, “upon the knees of your hearts.” Yes, and in this posture we must see you, or parliament is a laughing stock—you tyrants—and we slaves.

The constitution, in short, is already at an end, and the government a mere tyranny in the hands of the judges, if, to save them harmless against the punishment due for a transgression committed by them against the law, it be sufficient to them in all cases, or even in any case, to say, such is the construction that we put upon it: if, in the instance of this as of every other set of men, for the purpose of condemning them, and if guilty, punishing them, it be not, to whatever authority it belongs to sit in judgment on their conduct, competent, if so it appear, to pronounce that the allegation, express or implied, of their having believed such and such to have been, on the occasion in question, the intention of the legislature, is not true.

To the meanest subject that is to be found—to him on whose part, not only in relation to the particular import, but in relation to the very existence of the law in question, ignorance is at the same time most certain and most excusable, such ignorance affords not, in the breast of those arbiters of his fate, either justification, or so much as excuse:* and by the mere supposition of it, and that an untrue one, shall such ignorance afford not only excuse but justification to those in whose situation, even without other transgression, such ignorance—ignorance of the law—is itself a crime?

No:—neither on this nor on any other occasion: no; on no occasion, nor on any account, on the part of learned gentlemen will there be any objection to fresh acts. Fresh acts, besides evidencing, on an occasion such as this, the impotency of the authority that made the former ones, make, on every occasion, fresh confusion, and fresh fees. Fresh acts make the pot boil brisk in the little kitchen of the attorney: fresh acts make the cauldron boil brisk in the great victualling offices attached to higher fee’d as well as feefed situations. No: on any occasion there will not, on the part of lawyers in general, be any more objection to fresh acts, than on a particular occasion there was, on the part of Lord Melville, to the bringing in, and carrying into a law, a bill for preventing a paymaster of the navy from applying the money of the people to his own use. On these subjects the understanding has been general and constant. So far as the binding and punishing force of the laws bears upon men who neither are in power, nor are to receive protection from men in power, so far they are to be executed: so far as they would bear hard upon men who are in power, or under the protection of men in power, so far they are to be laughed at.

In a word—to employ a system of classification the nomenclature of which is become as generally intelligible as the principles of it have been generally pursued—“tinmen” and “great characters” form the two species into which, to this purpose, the genus of his Majesty’s subjects has been divided. What then is “the use of the law?”—Bacon, who started the question, talked about it and about it, but it was reserved for his successors to give a clearer answer to it. What is now the use of the law? To fall as a millstone upon the heads of “tinmen,” to stand as a laughing-stock to “great characters.”

§ 7.

Prospect of Redress.

“But, these remedies of yours, by what hands are they to be administered?—Lawyers? you will find none willing: Non-lawyers? you will find none able . . . . And when all lawyers and all non-lawyers are subtracted, how many have you left?”

I answer—to the difficulty of this remedy no eye can be more acutely or profoundly sensible than his are who thus ventures to propose it. But, under favour of the inexhaustible stock of varieties incident to the human character, causes of a psychological nature, inscrutable to human eyes, have manifested, now and then, their power, in the production not only of evil but of good; yea, and will continue to do so little by little: of good, in whatsoever shape good is at the same time conceivable, and in a physical sense practicable. In one age, A proposes: in another, B moves: in a third, C carries into effect. This is the rate at which reform and improvement travel, when the surveyors of the highways are lawyers.

Assuredly, had it been my lot to find myself in the place where motions are made, some five-and-twenty or thirty years ago, a motion for a real committee of justice would at least have stood upon the journals.

A committee of justice? Oh, yes: turn to the journals and there you may see—not a parliament in which you may not see—a committee of justice. In that place you may see it: but in that place you may as well content yourself with seeing it: for, until something which would be called confusion, take the place of that which is called order, you had better not expect, unless you are fond of disappointment, to see it anywhere else.

Regular as is the appointment of this regular committee, the functions of it compose a sinecure: a sinecure no less regular and profound, than if the Perceval allowance of £38,574 a-year (reduced, alas! to less than £13,000, we are told, by deductions that somebody or other knows of,* ) were attached to the situation of each of its members, in recompence for the labour of receiving the emoluments, added to that of being said, without being so much as supposed, to do the duties of it.

But when sinecures are gone, justice, with the committees necessary for her restoration, may then come.

Such is the state of things at present. Such will continue to be the state of things, until, in some shape or other, censure—prompt as well as impartial censure—not to speak of punishment—shall take place of tardy and disregarded laws:—of declaratory acts, and explanatory acts, passed some score or some half-hundred years after the acts, those acts that wanted not to be explained, but to be enforced, had, instead of being enforced, been trampled on by “great characters,” or explained and explained away—or, what is shorter, openly scorned and trampled upon by judges.

Whether law or tyranny reigns, is a question that will be decided by the notice or no notice taken in “high situations,” and eventually in low ones, of this grievance. Till now, the tyranny had a mask: but now the mask is gone.

Great zeal everywhere for the maintenance of subordination. Subordination! But of what sort? Not of that of which universal security is the fruit: but of that, by which, for the benefit of “great characters in high situations,” all but they, their confederates, instruments, and dependents, are kept in a continual state of insecurity and bondage.

Observing the House of Lords to have at length, by the continually increasing accumulation of causes, become, in respect of its appellate jurisdiction, converted into a sort of delay-shop, in which, in pieces of an indefinite number of years’ length, delay is sold to dishonest men with other men’s money in their pockets,—observing, moreover, the grievance to be to such a degree flagrant and notorious, as to have been publicly and repeatedly held up to view in the House itself, by the only persons by whom any plan of relief, it is universally understood, could, with any prospect of success, or, according to received notions, with any sort of congruity, be laid upon the table—in the month of January 1808, I took upon me to transmit to such of the Members of both Houses as could conveniently be reached, the outline of a plan (accompanied in every article with reasons,) which I had sketched out for that purpose, under the title of a “Plan of a Judicatory, under the name ofThe Court of Lords Delegates.”†

In my own mind, a still more important, though not an inseparable part of that plan, consisted in the transferring moreover, to the proposed judicatory, that part of the immediate jurisdiction of the House of Lords which consists in the cognizance of impeachments: the decision of the delegates in those cases to be final, unless reversed or modified by the House at large, on the declared ground of censurable misconduct on the part of those their delegates.

The main principle, on which this plan was grounded, was no other than that which, whether ever expressed or no in words, will in substance be found to have served as the main principle of the Grenville act; viz. that the sense of responsibility, without which there can be no tolerably adequate security either for probity or intelligence, is less and less acute and operative, in proportion as the number of those whose share in it is extensive.

It was at this price only, as it seemed to me, that impeachment, already proclaimed in parliament as having sunk into an empty name, could be restored to that character which it was originally designed, and till of late was universally supposed, to possess, and which at different times it has in some degree possessed, viz. that of serving as a check upon political delinquency in “high situations:” and this, without consuming in judicature any part of that time which is so habitually found insufficient for the still higher and more important functions of legislation: to the end that the judicial authority of the country might upon occasion be employed in checking, removing, and in case of need even punishing, instead of being, as at present, exclusively and avowedly employed in protecting “unfitness” on the part of “great characters” in high “situations:”‡punishment being reserved for such low people as, having the misfortune of suffering from such “unfitness,” have the audacity to complain of it.

Of a censorial tribunal so constituted, what did not present itself to my view as the least important use, was—the application of a check to that corrupt despotism, to which, as above, except in name and empty show, there exists not at present any check, viz. the despotism of the judges.

Not only in my own mind, but in my own papers, the plan had in it yet other parts, the object of which was to invest the Lords, by the instrumentality of these their appointed and periodically removable delegates, not only with the power, but with the interest (without which power is nothing,) that seemed necessary to engage and fix them in the habit of rendering to the community certain services, which, by the necessary changeableness of its composition, the House of Commons is disabled from rendering with equally assured steadiness and perseverance:—one of these services being the instituting and keeping up an uninterruptedly periodical series of returns and accounts, expressive of the state of the system of judicial procedure, under a set of pre-appointed heads, embracing the whole field of judicature, and bearing specific reference to the several distinguishable ends of justice: the other, the taking occasion of such causes as should come before this judicatory in the way of appeal, to facilitate the gradual conversion of the rule of action, out of the purely conjectural, tenorless, uncognoscible, and impostrous state of unwritten, alias common law—the shapeless production of a set of note-takers, compilers, and publishing booksellers—into its only cognoscible, determinate, and unimpostrous state, viz. that of what is called written or statute law: the joint and genuine work of the king, the lords, and the delegates of the people.

For such plan, no efficient acceptance could either be expected, or so much as wished, if by the establishment of it the preponderant weight and influence of the more essential branch of the constitution were exposed to any danger of being lessened: but, that no such danger could attach upon it, could easily, and would have been actually, put out of doubt.

That, in the opinion of leading persons of opposite parties, the above plan, (meaning of course such part of it as had in the above paper been presented to view) possessed a claim to serious attention, was a fact of which I found reason to make no doubt: and, on one part, such and so public was the opinion expressed concerning it, as to render it evident, that in one event, nor that altogether an improbable one, should the same opinion continue to be entertained of it, the establishment of it would be but a natural consequence.

Had the expression of such opinion been in any instance addressed to, or accompanied with any such intimation as that of a desire that it should be, or a thought that it would be, communicated to the person whose proposal was the subject of it, the communication might have been ascribable to that sort of civility, from which any serious thought about the matter is not always to be inferred: but the communication having in every instance been the result of mere accident, clear of all design, and probably to this hour not merely unheeded but unknown, the real existence of the opinion is in each instance but so much the less exposed to doubt.

In one instance, my satisfaction would, I must confess, have been more entire, if, when reflecting on past occurrences, it had been in my power to assure myself, that that part of the plan which by the author had been regarded as a drawback, though that an indispensable one, from the mass of advantage expected from the institution, had not in other eyes constituted at least a principal recommendation of it.

But among those who are agreed about measures, it would be not only a useless but a pernicious refinement to look out for differences about motives.

Nor would any such topic have been touched upon, but that, regarding the proposed institution, as above, as capable of operating in the character of a highly useful, if not of itself a completely effectual remedy, to the political disease of which so much has just been said, the design of this work seemed to require, that of the plan in question such part as has already seen the light should now receive the same degree of publication as this work itself does; for which purpose, copies of it have now been transmitted to the publishers.

Of this increased publicity one consequence is—that in the mind of him by whom the observation shall have been made (and by whom will the observation not have been made?) that a necessary part of the plan consists in the creation of several new situations, of which some could not but be in a pre-eminent degree lucrative ones, a supposition too natural not to follow in a manner of course will be, that in this proposed mass of emolument, some share had been looked for by the projector: and that, in his mind, it was the advantage so looked for that had constituted—if not the sole, at least one, final cause—of the project. It therefore, as mankind are constituted, appears to me to be, if not absolutely necessary, at any rate highly conducive, to the unbiassed examination of the plan, to declare, as I do most distinctly, that in any emolument that ever was proposed, or may ever come to be attached to it, I never had, nor ever shall I have, any more concern, than any other person under whose eye the present page may be lying at this moment: and that, in the contrivance of it, no person by whom, for himself, or any friend of his, any expectation of any part in such emolument could have been entertained, has ever been consulted with: no person having been in fact consulted with upon the subject, either before the paper went into circulation as above, or since.

Not that the plan is in itself a whit the better, or the less bad, for a circumstance thus collateral and incidental to it: and should any plan for the same purpose ever be brought on the carpet by any other hand, the author may be assured, that no personal advantage that may be found included in it for his own particular benefit, or that of any of his friends, will by me be pleaded in bar to the acceptance of it. In my view of the matter, be the measure what it may, instead of a bar, any advantage accruing to an individual, constitutes, I must confess, a plea in favour of it. The indication of any such advantage coupled with the appellation of a job,—this argument, as it is a very easy and a very common, so is it a very commodious argument for such politicians as, being conscious of their inability to form any direct and specific estimate of the advantages and disadvantages of any plan which requires hands for the execution of it, have recourse to this circumstance in the character of an article of circumstantial evidence, and that conclusive, establishing, and that at so small an expense as that of a single word, not only the ineligibility but the corruptness of the measure:—but it will not pass in any such character with any man, who, being duly aware that, in all its branches, government consists but in a choice of evils—evils produced, that in each instance greater good may come—holds himself, on the occasion in question, not incompetent to the task of weighing the good against the evil, and determining on which side the balance is to be found.

Supposing the plan in question received, as above, in all its projected parts, the court of Lords’ Delegates would, without the name, add to its other characters that of a school, and that not only of judicature but of legislation: a school in which such of our noble youth (supposing any such to be found,) to whom the study might not, any more than the practice of that art does at present, appear beneath their dignity, might find the means of instruction as well as exercise: a school in which not only the exercise, but, by means of the exercise, the prizes, might, instead of remaining a monopoly in the hands of those whose interest it is that the body of the law be in all its points in as bad a state as possible, lie open to those also whose interest, in the shape of reputation and conscience, would on this occasion act in alliance with their duty, and whose interest would not, at any rate, be in any shape at variance with it.

Lastly, being occupied in preparing with all expedition for the press a work on parliamentary reform, in which, if my own conception of the matter be correct, the necessity of such a measure is placed beyond the reach of doubt, followed by a plan for that purpose, accompanied in each article with reasons, and answers to objections (a plan in the contrivance of which I saw but little reason to go in quest of novelty,) it seemed to me of use that it should be understood, and that most clearly, that to engage a man’s opinions and affections in favour of such a measure, no other propensity is necessary than a desire—not to pull down, but to uphold—not to wrest power out of the hands of present possessors, but to render them somewhat less generally and flagrantly inept than at present for, as well as disdainful of, the exercise of it: that so, when among those questions which sooner or later will inevitably be urged, this also should be put—viz. what are the occupiers of that room with the gilt chair in it good for, unless it be to serve as tools in the hands of the—general, who now and then comes in form and sits in it—a set of implements constituting, when put together, a clumsy piece of machinery for producing the effect of a simple negative—those to whom any such searching question happens to be addressed, may have some better answer at hand than what has been furnished by the threadbare and transparent fallacies that have hitherto been seen to be employed upon that service.

The Hospital of Incurables was a name invented for that great room—not by any such plebeian as myself, but by a noble practitioner (the Earl of Chesterfield,) to whose penetrating eye the condition of all the wards, with all the patients in it, had by long observation and experience been rendered so familiar. By him, as the name thus bestowed bears witness, the condition of the inhabitants was regarded as already desperate. For my own part, whether it be, that being more given to hope, and less to satire, as well as somewhat more accustomed to look out for expedients, than that veteran courtier, my judgment has been led astray by my affections, my views of the case are less desponding. As hospitals are apt to be, and as this in particular was once pronounced to be* —pronounced so by the inhabitants themselves when not half so numerous as at present—it appears to me, as it has done to others, too much crowded: in which case it is the less to be wondered at, if, of a species of vital gas known in the old nomenclature by the name of public spirit, a morbific deficiency should be found:—a deficiency, of which the principal effects and symptoms are an habitual lethargy and prostration of strength, admitting of no abatement but what may happen to be produced by the accidental pricking of some such stimulus as that of a canine appetite for fat sinecures. For the over-population, the remedy is too simple, as well as by those whom it concerns most nearly too well approved,† to need any further mention in this place. As to the public spirit, the apparatus for the injecting of it has been already indicated.

“SWEAR NOT AT ALL:”

containing an EXPOSURE OF THE NEEDLESSNESS AND MISCHIEVOUSNESS, as well as ANTI-CHRISTIANITY of the CEREMONY OF AN OATH: a view of THE PARLIAMENTARY RECOGNITION OF ITS NEEDLESSNESS, IMPLIED IN THE PRACTICE OF BOTH HOUSES; and anINDICATION OF THE UNEXCEPTIONABLE SECURITIES, BY WHICH WHATSOEVER PRACTICAL GOOD PURPOSES THE CEREMONY HAS BEEN EMPLOYED TO SERVE, WOULD BE MORE EFFECTUALLY PROVIDED FOR. together withPROOF OF THE OPEN AND PERSEVERING CONTEMPT OF MORAL AND RELIGIOUS PRINCIPLE, PERPETUATED BY IT, AND RENDERED UNIVERSAL, in the TWO CHURCH-OF-ENGLAND UNIVERSITIES, more especially in THE UNIVERSITY OF OXFORD. (Pre-detached from an Introduction to the “Rationale of Evidence.”)

BY JEREMY BENTHAM, ESQ.

FORMERLY OF QUEEN’S COLLEGE, OXFORD, A. M.

originally published in 1817.

ADVERTISEMENT.

In the state in which it is here seen, this tract was printed anno 1813. In the summer of the year 1813, in passing through the University of Oxford (in which seat of learning, above half a century ago, the author had taken the last of two degrees,) by the hands of a common friend he caused to be delivered into the hands of one of the Reverend the Heads of Houses, who had been mentioned to him as being of the number of those, in whose instance the hydrophobia of innovation was supposed to be least rabid, a copy of this tract; and staid there long enough to hear of its having undergone his perusal. Of the communication thus made, the motive was—a hope, how small soever, that possibly, by means of the representation thus conveyed, some course might, in that seat of professed piety, be taken, for the abolition of a practice, which, not to profane only, but to reverend and orthodox eyes, had already, in more instances than one, presented itself, and had accordingly in print, and in multitudes of editions, been held up to view, as impious.

Whatever other imputations the publication of this tract may be thought to be open to, precipitation therefore will at any rate not be of the number: neither on the one part precipitation,—nor on the other part, want of notice.

After all, this tract might for any further length of time have slept upon the shelf, but for the addition so lately made of the scourge of religious persecution to the yoke of despotism:—for a pretence for punishment as for blasphemy—and that by imprisonment without trial (infliction by every clergyman who is in the commission of the peace) the so recently instituted practice of putting the composition of nobody knows what “miserable sinners,” who triumphed over piety and sincerity about two centuries and a half ago, upon a level with the discourses of Jesus; and, by men by whom the profession of piety has been converted into an instrument of power, the exertions so lately made, to bolster up by the force of their punishments the imbecility of their arguments.

What is here meant is not unknown to Mr. Wilberforce. Of the perjury which, so long as he has had eyes to see, has been staring him in the face, let him disprove the impiety, or stand forth at length, and use his endeavours to put an end to it.

EDITOR’S NOTE

*∗* By 5 & 6 W. IV. c. 8 (12th June 1835,) entitled, “An Act for the more effectual abolition of Oaths and Affirmations taken and made in various departments of the State, and to substitute Declarations in lieu thereof: and for the more entire suppression of voluntary and extrajudicial Oaths and Affidavits,”—certain enactments were preceded by the following preamble:—“Whereas, by an Act passed in the session holden in the 1st and 2d year of the reign of his present Majesty, intituled, ‘An Act to abolish certain Oaths and Affirmations taken and made in the Customs and Excise departments of his Majesty’s revenue, and to substitute Declarations in lieu thereof’ (1 & 2 W. IV. c. 4,) and by other enactments subsequent thereto, the number of oaths and affirmations required to be taken and made in these departments has been greatly diminished, and the beneficial operation of the said recited act, and such other subsequent enactments, gives ground to believe that the number of oaths and affirmations may be yet farther reduced in those and other departments of the State.” This statute was repealed, and new provisions substituted, by 5 & 6 W. IV. c. 62 (9th September 1835,) which enacted (§ 2,) That where Oaths are administered in proceedings connected with the Customs or Excise, the Post-office, the office of Stamps and Taxes, the office of Woods and Forests, Land-revenues, Works, and Buildings, the War-office, the Army Pay-office, the office of Treasurer of the Navy, the Accountant-General of the Navy, or the Ordnance, his Majesty’s Treasury, Chelsea Hospital, Greenwich Hospital, the Board of Trade, the Secretaries of State’s offices, the India Board, the Audit office, the National-Debt office, or any other office under controul of the Treasury, the Lords of the Treasury may substitute Declarations. (§ 5,) Persons making false affirmations, in cases connected with the revenues of the customs or excise, stamps and taxes, or post-office, guilty of misdemeanor. (§ 6,) The oath of allegiance still to be taken by persons in office. (§ 7,) The act not to abolish judicial oaths. (§ 8,) It is made lawful for the universities of Oxford or Cambridge, or any other bodies corporate and public, entitled to administer oaths, to substitute declarations. (§ 9,) Churchwardens and sidesmen no longer to take oaths, but only to make declaration of faithful and diligent performance on entering on their duties. (§ 10,) Declarations substituted for the oaths appointed to be taken under highway and police acts. (§ 11,) Persons applying for patents under the great seal, instead of the usual oath, to make a declaration in the same terms. (§ 12,) Declarations substituted for the oaths under the pawnbroker’s acts, to be taken in the same terms, and on the same occasions. (§ 13,) Justices of the Peace and others are prohibited from taking oaths or affidavits “touching any matter or thing whereof such Justice or other person hath not jurisdiction or cognizance by some statute in force at the time being,”—the enactment not to apply to oaths in matters connected with the preservation of the peace, or prosecutions, or proceedings before Parliament; or to oaths necessary to validate legal instruments to be used in foreign countries. (§ 14,) Where it was the practice of the Bank of England to take oaths for facilitating transfers, or as to the loss or destruction of notes,—declarations substituted. (§ 15,) Declarations substituted for oaths of parties and witnesses, in actions in the colonies, “for or relating to any debt or account wherein any person residing in Great Britain and Ireland shall be a party, or for or relating to any lands, tenements, or hereditaments, situate, lying, and being in the said places.” (§ 16,) The attesting witnesses to any testament or deed, may verify the execution by declaration in writing. (§ 18, 21,) A form of voluntary declaration to be taken in miscellaneous cases, the taking which, or any other declaration substituted for any oath, falsely, renders the party guilty of a misdemeanor.—Ed.

SWEAR NOT AT ALL.

Mat. v. 34.

[* ]Part II. Ch. V.

[† ]1 W. & M. sess. 2, c. 2.

[* ]Phillips, pp. 62 to 68.

[* ]See Scotch Reform, Letter I.

[† ]Incomprehensible as this pertinacity may appear on the face of it, the root of it may, I have been led to think, be traced to certain extortions that, so long ago as in the year 1777, were brought to light by Howard. The principal passages, extracted from his “State of the Prisons, &c.” 3d edition, anno 1784, pp. 15 and 16, are here subjoined. Between the extortions of that day as exhibited by Howard, and one of the oppressions of the present day as exhibited by Sir Richard Phillips, evidence of connexion having been observed, the display of it was at one time destined to form part of the present work: but the length of it being found altogether disproportionate, it has been necessarily discarded for the present, though on some future occasion it may perhpas find its place.

Including some remarks on the above-mentioned statute, (14 Geo. III. c. 20,) to which Howard will be seen to allude, being one of the feebly-protecting statutes to which the ill-seconded exertions of that truly Christian hero gave birth, the deduction would be found to present a curious enough picture of parliamentary and super-parliamentary lawyer-craft, forming no unsuitable match with that which stands exhibited in the 5th chapter of the second part of this work:—

“Although acquitted prisoners are, by the late act in their favour (14 Geo. III.) cleared of gaoler’s fees, they are still (says he) subject to a similar demand made by the clerks of assize and clerks of the peace, and detained in prison several days after their acquittal: at assize till the judges, at quarter-sessions till the justices of peace, leave the town; in order to obtain those fees, which the gentlemen say are not cancelled by the act. And yet the express words of it are—‘Acquitted prisoners shall be immediately set at large in open court.’ It is evident, then, that all fees of the commitment, in respect of the prisoner, are by this act totally abolished.

“Since the said act, the clerks of assize in some circuits have started a new demand upon the gaoler, for the judge’s certificate of acquitment: viz. six shillings and eight-pence for the first prisoner acquitted; and a shilling for each of the rest, or two shillings for every one. I have copies of two receipts given by the clerk of the western circuit to the gaolers of Exeter and Salisbury. One of them is as follows:—‘Received 1 April 1775 of Mr. Sherry, gaoler, one pound eight shillings and eightpence, for his certficate entitling him to his gaol fees for the county of Devon, from J. F. * * * *, clerk of the assize.’ The gaoler told me this was for twenty-three acquitted prisoners.

“I was informed at Durham, that Judge Gould, at the assizes of 1775, laid a fine of fifty pounds on the gaoler for detaining some acquitted prisoners for fees of the clerk of assize. But upon the intercession of the Bishop (proprietor of the gaol,) the fine was remitted, and the prisoners set at large; the judge ordering the clerk of assize to explain to him in London, the foundation for this demand.

“One pretence for detaining acquitted prisoners is, that ‘it is possible other indictments may be laid against them before the judge leaves the town.’ I call it a pretence, as the grand jury are often dismissed some days before that time, and because those who do satisfy the demands of the clerk of assize are immediately discharged. Another pretence is, the gaoler tells you ‘he takes them back to knock off their irons.’ But this may be done in court: in London, they have an engine or block, by the help of which they take off the irons with ease in a minute; the machine is brought into court, and the acquitted prisoner is immediately discharged. If, according to what I proposed, prisoners were tried out of irons, this pretext would be entirely removed.

“Clerks of assize, and of the peace, ought most certainly to have a consideration for their service to the public: the thing I complain of is what I am led to by my subject; that is, the demand that is made directly or indirectly upon acquitted prisoners.a

[* ]Instead of general utility, antipathy the ground of punishment—intensity of the antipathy the measure of punishment, retrospective, the application of it.

[* ]Hawkins, P. C. Vol. I. B. I. Ch. 31, § 60.

[* ]Ignorantia legis excusat neminem.

[* ]Finance Committee, anno 1808, Report 3.

[† ]Vide supra, p. 55.

[‡ ]See Part I. Chap. IX.

[* ]See Blackstone’s Commentaries, I. Ch. II. p. 152.

[† ]Ibid. “In the reign of King George I. a bill passed the House of Lords, and was countenanced by the then ministry, for limiting the number of the peerage.”

[† ]Incomprehensible as this pertinacity may appear on the face of it, the root of it may, I have been led to think, be traced to certain extortions that, so long ago as in the year 1777, were brought to light by Howard. The principal passages, extracted from his “State of the Prisons, &c.” 3d edition, anno 1784, pp. 15 and 16, are here subjoined. Between the extortions of that day as exhibited by Howard, and one of the oppressions of the present day as exhibited by Sir Richard Phillips, evidence of connexion having been observed, the display of it was at one time destined to form part of the present work: but the length of it being found altogether disproportionate, it has been necessarily discarded for the present, though on some future occasion it may perhpas find its place.

Including some remarks on the above-mentioned statute, (14 Geo. III. c. 20,) to which Howard will be seen to allude, being one of the feebly-protecting statutes to which the ill-seconded exertions of that truly Christian hero gave birth, the deduction would be found to present a curious enough picture of parliamentary and super-parliamentary lawyer-craft, forming no unsuitable match with that which stands exhibited in the 5th chapter of the second part of this work:—

“Although acquitted prisoners are, by the late act in their favour (14 Geo. III.) cleared of gaoler’s fees, they are still (says he) subject to a similar demand made by the clerks of assize and clerks of the peace, and detained in prison several days after their acquittal: at assize till the judges, at quarter-sessions till the justices of peace, leave the town; in order to obtain those fees, which the gentlemen say are not cancelled by the act. And yet the express words of it are—‘Acquitted prisoners shall be immediately set at large in open court.’ It is evident, then, that all fees of the commitment, in respect of the prisoner, are by this act totally abolished.

“Since the said act, the clerks of assize in some circuits have started a new demand upon the gaoler, for the judge’s certificate of acquitment: viz. six shillings and eight-pence for the first prisoner acquitted; and a shilling for each of the rest, or two shillings for every one. I have copies of two receipts given by the clerk of the western circuit to the gaolers of Exeter and Salisbury. One of them is as follows:—‘Received 1 April 1775 of Mr. Sherry, gaoler, one pound eight shillings and eightpence, for his certficate entitling him to his gaol fees for the county of Devon, from J. F. * * * *, clerk of the assize.’ The gaoler told me this was for twenty-three acquitted prisoners.

“I was informed at Durham, that Judge Gould, at the assizes of 1775, laid a fine of fifty pounds on the gaoler for detaining some acquitted prisoners for fees of the clerk of assize. But upon the intercession of the Bishop (proprietor of the gaol,) the fine was remitted, and the prisoners set at large; the judge ordering the clerk of assize to explain to him in London, the foundation for this demand.

“One pretence for detaining acquitted prisoners is, that ‘it is possible other indictments may be laid against them before the judge leaves the town.’ I call it a pretence, as the grand jury are often dismissed some days before that time, and because those who do satisfy the demands of the clerk of assize are immediately discharged. Another pretence is, the gaoler tells you ‘he takes them back to knock off their irons.’ But this may be done in court: in London, they have an engine or block, by the help of which they take off the irons with ease in a minute; the machine is brought into court, and the acquitted prisoner is immediately discharged. If, according to what I proposed, prisoners were tried out of irons, this pretext would be entirely removed.

“Clerks of assize, and of the peace, ought most certainly to have a consideration for their service to the public: the thing I complain of is what I am led to by my subject; that is, the demand that is made directly or indirectly upon acquitted prisoners.a

[a ]“The clerks of assize give to the judge large sums for their places. One of the present gentlemen gave for his place £2,500. On many accounts, these places ought not to be bought of the judges. If they were only presented, the fees might be much lower.”