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• Scotch Reform; Considered With Reference to the Plan Proposed In the Late Parliament, For the Regulation of the Courts and the Administration of Justice In Scotland: With Illustrations From English Non-reform: In the Course of Which, Divers Imperfectio
• Advertisement.
• Letters to Lord Grenville, On the Proposed Reform In the Administration of Civil Justice In Scotland.
• Letter I.
• Letter II.: Proposed Division of the Court of Session.
• Letter III.: Proposed System of Pleading.
• Letter IV.: Proposed Trial By Jury.
• Letter V.: On the Bill Called Lord Eldon’s.
• Summary View of the Plan of a Judicatory, Under the Name of the Court of Lords’ Delegates, Proposed For the Exercise of Those Judicial Functions, the Adequate Discharge of Which By the Whole House Has, For These Six Or Seven Years, Been Rendered Confe
• The Elements of the Art of Packing, As Applied to Special Juries, Particularly In Cases of Libel Law.
• Advertisement to the First Edition.
• Part I.
• Chapter I.: Occasion of This Work.
• Chapter II.: Juries—their Use As a Check to Judges.
• Chapter III.: The Check How Done Away By Influence.
• Chapter IV.: Special Juries, a Special Engine of Corruption.
• Chapter V.: Jury Unanimity Increases the Corruption.
• Chapter VI.: Purposes to Which Influence On Juries May Be Made Subservient.
• Chapter VII.: Chief Purpose, Crushing the Liberty of the Press.
• Chapter VIII.: The Exchequer Packing Office Suffices.
• Chapter IX.: Instruments For Crushing the Liberty of the Press.
• Chapter X.: Want of Adequate Obsequiousness Morally Impossible.
• Chapter XI.: Such Juries Worse Than None.
• Part II.: State of the Packing System, Anno 1808.
• Chapter I.: Introduction—two Reforming Shrievalties.
• Chapter II.: The Sheriff to the Lord Chief Baron—notices.
• Chapter III.: Lord Chief Baron to Sheriff Sir Richard Phillips—avowries and Defences.
• Chapter IV.: Observations On the Lord Chief Baron’s Defences.
• Chapter V.: Special Jury Corruption—devices By Which It Was Protected.
• Chapter VI.: Learned Advice From the Temple.
• Chapter VII.: Advice From Lincoln’s-inn.
• Chapter VIII.: Maxims Concerning Reform, Deduced From the Above Letter.
• Chapter IX.: Transactions At the Remembrancer’s.
• Part III.: State of the Packing System, Anno 1809.
• Chapter I.: Commons’ Debate, 24 Th April 1809. Packing and Cutting.
• Chapter II.: Double-fee Abuse, Plain and Embroidered.
• Part IV.—: Remedies Proposed. *
• Chapter I.: Humble Proposal For Restoring the Constitution In Regard to Juries.
• Chapter II.: State of Jury Package In Scotland.
• Chapter III.: Humble Proposal For Restoring the Authority of Parliament.
• “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; a
• Advertisement.
• Editor’s Note
• Swear Not At All. Mat. V. 34.
• Section 1.: Oath. Incongruity of the Assumption, On Which Its Supposed Beneficial Efficiency Is Grounded.
• Section 2.: Mischievousness of This Instrument Considered In a General Point of View.
• Section 3.: Its Inefficiency In the Character of a Security Against Deceptious Incorrectness and Incompleteness In Evidence.
• Section 4.: Recognition of Its Inutility By Lords and Commons.
• Section 5.: Mischiefs —1. Contributing to the Mendacity-licence Granted By Judges.
• Section 6.: Mischief 2— Weakening In Various Ways the Efficiency of the Laws.
• Section 7.: Mischief 3— Bewildering and Enslaving the Consciences of Jurymen.
• Section 8.: Mischief 4— Giving Aid and Force to the Enterprises of Malefactors.
• Section 9.: Mischief 5— Furnishing Pretence For Misrule By Abuse of Prerogative.
• Section 10.: Misrule, How to Perpetuate—coronation Oaths Amended.
• Section 11.: Mischief 6— Corrupting the National Morals and Understanding—oxford University Oaths.
• Section 12.: Mischief 6 Continued. —ii. Cambridge Oaths.
• Section 13.: Practice of Receiving Judicial Oaths, Its Repugnancy to the Precepts of Jesus.
• Section 14.: Succedanea—true Securities Substitutible to This False One.
• Section 15.: Cause and Origin of the Practice In Regard to Oaths.
• Appendix.
• Truth Versus Ashhurst; Or, Law As It Is, Contrasted With What It Is Said to Be.
• The King Against Edmonds and Others: Set Down For Trial, At Warwick, On the 29 Th of March 1820.
• The King Against Sir Charles Wolseley, Baronet, and Joseph Harrison, Schoolmaster, Set Down For Trial, At Chester, On the 4 Th of April 1820.
• Official Aptitude Maximized; Expense Minimized: As Shown In the Several Papers Comprised In This Volume.
• Paper I.—
• Paper II.—: Introductory View, &c.
• Paper III.—: Extract From the Proposed Constitutional Code; Entitled, Official Aptitude Maximized—expense Minimized. By Jeremy Bentham, Esq. Bencher of Lincoln’s Inn.
• Paper IV.—: Supplement to the Above Extract.
• Paper V.—: Defence of Economy Against the Right Honourable Edmund Burke.
• Paper VI.—: Defence of Economy Against the Right Honourable George Rose.
• Paper VII.: Observations On Mr. Secretary Peel’s House of Commons Speech, 21 St March 1825, Introducing His Police Magistrates’ Salary Raising Bill, ( Date of Order For Printing, 24 Th March 1825.)
• Paper VIII.: Indications Respecting Lord Eldon, Including History of the Pending Judges’-salary-raising Measure.
• Paper IX.—: On the Militia.
• Paper X.: On Public Account Keeping.
• Paper XI.: Constitutional Code—table of Contents As Shown By Titles of Chapter and Sections.
• Commentary On Mr. Humphreys’ Real Property Code, By Jeremy Bentham. From the Westminster Review, No. XII., For October 1826.
• *∗* the Following Note Was Prefixed to the Article By the Editor of the Westminster Review: —
• Commentary On Humphreys’ Real Property Code.
• I.: Deed of Sale.
• II.: Deed of Mortgage. 1
• III.: Marriage Settlement Deed.
• Outline of a Plan of a General Register of Real Property: Contained In a Communication to the Commissioners Appointed Under Letters Patent, of Date the 6 Th June 1828, to Inquire Into the Law of England Respecting Real Property, and First Printed I
• Justice and Codification Petitions: Being Forms Proposed For Signature By All Persons Whose Desire It Is to See Justice No Longer Sold, Delayed, Or Denied: and to Obtain a Possibility of That Knowledge of the Law, In Proportion to the Want of Which T
• Justice and Codification Petitions.
• Advertisement.
• Preliminary Explanations Necessary to Be First Read.
• Petition For Justice.
• Abridged Petition For Justice.
• More Abridged Petition For Justice.
• Supplement, Which May Be Added Or Not to Any One of the Three Or Any Other Proposed Petition.
• Petition For Codification.
• Lord Brougham Displayed: Including I. Boa Constrictor, Alias Helluo Curiarum; II. Observations On the Bankruptcy Court Bill, Now Ripened Into an Act; III. Extracts From Proposed Constitutional Code.

Section 15.

Cause and Origin of the Practice in regard to Oaths.

Thus repugnant to one of the plainest precepts of Jesus,—to that one which may perhaps be stated as being the most pointed and specific of all the precepts of Jesus,—how happens it, it may be asked, that, under a religion calling itself the religion of Jesus, the use made of this ceremony should have been so abundant?

After what has been said, the answer to this question will surely not be thought to lie very deep.

In the case of this as of other institutions, the final cause must be to be looked for, in the particular interests of those by whom they were set on foot.

In so far as, on the occasion of the application made of it, the institution happened to be favourable to the general interest of the community, in so far the operation and effect of it was beneficial:—in so far as—the particular interest being repugnant to the general interest—the general interest was sacrificed to it, the operation and effect of the institution was pernicious.

What has had place in the instance of other institutions, may perhaps have had place in this;—viz. that at their origin the balance of their effect has been on the side opposite to that on which it has come to be afterwards: at its origin,—being employed—though in itself an evil—as an instrument, and perhaps a necessary one, to the combating of still greater evils,—it may have been productive of a quantity of good, which, upon the cessation of these greater evils, has come to cease.

On the occasion of the question concerning the effects, good and bad, of the use made of this instrument, there are two distinguishable states, in which society requires to be considered: viz. a barbarous state, and a comparatively civilized state. In the barbarous state, that is, until a certain degree of civilization has taken place, it may probably be impossible to determine, to any tolerable degree of certainty, whether the good or the evil were predominant: the chances may perhaps be found even in favour of the good:—while, in the civilized state, the good effects being altogether or nearly evanescent, the evil will, as above, be found preponderant in the balance, if not alone.

In the early and barbarous state of the species, anterior consequently to the days of history,—take any number of human beings, connected by no other ties than those of vicinity—could they or could they not have been knit together in the bonds of political society, and thence gifted with a till then unexperienced degree of security, without the aid of this or other kindred instruments?—If not, the preponderance on the side of utility seems to be out of the reach of dispute.

Among the ancient Greeks, great and various was the use made of oaths: among the Athenians, more regard was supposed to be paid to them than in other parts of Greece. By Theseus, the scattered population of Attica was, for the first time, brought to that degree of union, and into those habits of submission, by which political power and regular government are composed. In the production of this effect, the instrument in question would naturally be employed. Could the effect have been at all, or equally well, produced without it?

In the hands of the priest, supernatural hopes and fears have sometimes been employed, on the formation of society, in bridling and leading the passions of the multitude—sometimes, in a society already formed under the military leader, in the bridling of his despotism.

Suppose a case, in which, by the direction given to the force of the community, the peace and welfare of the community would, but for some such principle of restraint, be destroyed,—in such case, let any such principle present itself and come into action, here—although the nature of it be such as to rank it under the denomination of fraud, deceit, imposture—the preservation of the community may, in this restraining principle, how sinister soever in its nature, find its cause.

Suppose an infant in the cradle,—and a madman, with a sword in his hand, about to destroy it: if, by any representation, though it be false, the hand of the madman can be staid,—as for instance, that an angel with a flaming sword is about to smite the madman,—here the mischief, which in ill-directed force would have found its efficient cause, finds in fraud its preventive.

Next to the evils of anarchy, are the evils of despotism. Political society once formed, despotism is the predominant disease, to the attacks of which it remains continually exposed. Despotism or misrule has place, in so far as the force of the whole is, for the benefit of the one or the few, employed in a manner mischievous to the many.

If fraud could never be employed but to the promotion of happiness, fraud would not be vice but virtue.

In its own nature, fraud is equally capable of being employed on the side of force—of despotic force,—as an instrument in the hands of force,—or on a side opposed to it. Employed by force, or on the same side, it is an instrument of evil. But if so employed,—employed in such direction and manner, as to oppose, with more or less effect, the mischief that would otherwise be done by force,—in a word, to serve as a check to misapplied force,—in this way it may be an instrument of good.

In the society in question—in the hands in question, the effect of military force unchecked would be (let it be supposed) a barbarous tyranny and lawless despotism. In such a state of things, imposture and superstition—on the part of a priesthood imposture, on the part of the people that superstition on which imposture must always depend for its success—may, if evils, be necessary evils: necessary evils, and, with reference to the disease, remedies; with reference to the impending calamity, blessings.

Take the case of Jephthah. In the sacred history, the collection of facts actually reported is not ample enough for the present purpose. But, for the purpose of argument, they afford a ground ample enough to serve as a basis, upon which, for the purpose of argument, suppositions may be applied.

The facts are—that being commander-in-chief of the army of the Jews who were at war with the Ammonites, he vowed a vow—that, in case of his coming off victorious, he would, in the way of sacrifice, put to death the first living object that should present itself to him on his first visit to his own home. That first object was his only daughter, and accordingly put to death she was.*

Let this, then, be the supposition. Jephthah was the military leader: in that quality, his power was exercised in a manner dangerous to public liberty. In the influence of the priesthood he beheld a rival power: in that power, his own power felt a check, and that a salutary one. The form and ceremony of an oath had all along been an instrument in their hands: on the observation he had made of the efficiency of it on other occasions, was grounded the application he thought fit to make of it in this. In the utterance given to this his oath, what he had in view thus eventually to deal with, was neither more nor less than the first that should happen to present itself, of the animals ordinarily employed on the occasion of sacrifice: for, though in the practice of employing human creatures on this occasion for victims, there was not to the people over whom he presided anything new or even very strange,—and though their common ancestor Isaac would by his father have been thus dealt with, and the whole race thus extinguished; yet so it was, that no such thing was in his thoughts: least of all had he any such intention as that, of all human beings, his own daughter, his only child, should be thus dealt with. Unfortunately for the father and the daughter, such was the looseness of the expression employed, or at least said to have been employed by him, in the utterance of the oath or vow, that human beings were not excluded by it.

When the time came for fulfilment, his endeavours were of course applied to the causing that sense to be put upon the oath, by which the dictates of humanity would have been conformed to, and his own affliction spared. But, in an incident thus tragical and impressive, the priesthood beheld an opportunity too favourable to be suffered to pass unimproved: an opportunity of giving the utmost possible degree of force and efficiency to an instrument the management of which was in their hands.

The power thus possessed by them, and employed, was it, or was it not, with reference to the aggregate interest of the community in question—the Jewish nation at the time in question—a beneficial one?

For a categorical answer to this question, no sufficient data are to be found.

Of a hypothetical answer, the difficulty is not equally great.

The time was a time of war—a time during which, the earlier and less experienced the state of society is, the less distinctly does the authority of a commander-in-chief differ from a despotism. In this state of things, the authority of Jephthah, did it stand in need of a check? The sort of check which the priesthood were able and disposed to apply, was it upon the whole a salutary one? Both questions determined in the affirmative, the price paid for the keeping of this check in order and repair—that price, great as it was, was not perhaps too great. One individual—the father—afflicted: another individual—the daughter—sent out of the reach of affliction;—what are these evils, in comparison of those of a course of unbridled and tyrannically exercised despotism, or of civil war, its desperate and perhaps still more afflictive remedy?

Thus much for Jephthah, and for the application made of the ceremony in his case. Upon the whole, whatsoever it might have been in times thus remote and different from the present, for a long time past its effects may surely, without any considerable error, be set down as altogether on the side of evil.

To the purpose of being employed as a security against transgression in any shape, and in the shape of mendacity in particular, it is—for so it has above been shown to be—altogether needless.

Its effects, then, are purely on the side of evil. Of evil it is, as hath been already seen, an instrument, in a variety of ways: and it is—if not in a direct way, in the evil of which it has been productive, at least in an indirect way, in the good which the ruling few have contrived to extract out of that evil—that the use made of this instrument has found its efficient or final cause, and the upholders and employers of it their motive for thus upholding and employing it.

In many cases, in the supposition of the event is involved that of the antecedence of its opposite. Relaxation supposes restriction: condescension supposes pride.

Prohibition forms the necessary antecedent to, and ground of, licence: and when, to profitable prohibition, profitable licence is added, the produce of misrule is doubled.

There are two modes of culture in which the produce of licence may be reaped:—the general and the particular—the wholesale and the retail mode.

As to the wholesale mode, in its application to mendacity, its variations have been already shown, viz. omission and explanation: forbearing to apply the security to this or that class of cases, and explaining it away when applied.

The special or particular mode consists in the granting of special licences under the name of dispensations:—granting them avowedly, not covertly and indirectly, as in those other cases.

The use derived, in this shape, from the system of oaths and mendacity-licences, or perfidy-licences, by the Church of Rome, especially in times antecedent to that successful revolt against its authority which has obtained the name of the Reformation, is sufficiently notorious. By the ceremony of an oath, obligation applicable to any purpose was created: by a dispensation granted by the head of the church, an obligation thus contracted was, for the benefit of any person to whom on any terms it pleased the holy father to concede the indulgence, done away.

It was on the occasion of the dispensation more particularly, that the power of the spiritual ruler was most immediately profitable and most conspicuous. In the creation of the obligation, the tying of the knot was the operation of a pre-arranged machinery: the part taken in the operation by the manager, consisted in nothing more than watching over it, keeping it in order, and keeping it clear of obstructions.

The dissolution of the obligation—the dispensation—was a work that could not be performed but as it were by hand: on no occasion could it be performed, unless, on that same occasion, if not the mind, the hand at least of the manager were employed in the execution of it.

At the time of the Reformation, when men’s eyes had begun to open themselves, this power of dispensation became too flagrantly mischievous to be retained by any priesthood that had revolted from that of Rome. The days were now over, when, by the power of the keys, treaties might be made and dissolved—kingdoms given and taken back—war kindled—and peace sold.

By the Church-of-England priesthood it was accordingly, with whatsoever reluctance, along with so many other of the powers of the Romish priesthood, given up. By Land, as the crown by Cromwell, the cardinal’s hat was refused. The power of dispensation in the gross—the power of explanation was all that was by Laud’s power retained; retained accordingly it was, and in what manner retained and employed, has been seen above.

In time past, and thence in time present—the cause, final or efficient, of whatsoever is at any time found established,—be it beneficial, be it pernicious, to the subject many,—will always be to be found in the particular interest, real or supposed, of the ruling few.

Of the institution here in question, at the time of its creation, the effects may—upon the balance, as hath been seen—have been either good or bad,—it is scarce possible to say which. But, those times having been long since passed, the question now is—not whether it shall be set on foot, but whether it shall be preserved: the use now made of it—the support still given to it—these are the subjects which call for consideration in this our time.

APPENDIX.

I.

Among the Rulers of the University of Oxford, Perjury universal and constant, as declared in and by an Explanation, given by themselves, in their own Statutes—its Jesuitical style.

In page 212, in speaking of the rulers of the University of Oxford, mention being made of a document, in and by which the guilt of perjury is in an especial manner declared to attach, upon every person who shall comport himself in the manner therein described;—the same being a manner, in which, to his own knowledge and in the sight of the whole population of that city and its university, every such person does continually comport himself;—an extract is thereupon announced, as intended to be here subjoined, for the purpose of bringing to view the contents of that document, in so far as material to the present purpose. In the original, the following are the terms of it: annexed to it is a translation, in the penning of which, polish being considered as falsification, the most scrupulous fidelity has been observed. Misrepresentation pro tanto would have been the result, if, anywhere, in place of that which is, anything, of which it were supposed that it might better have been, had been substituted.

N.B. Of this document a copy is contained in every edition of that extract from the body of the University Statutes which is put into the hands of every member at his entrance.

ΕΠΙΝΟΜΙΣ

Seu Explanatio Juramenti quod de Observandis Statutis Universitatis a singulis præstari solet: quatenus, scilicet, seu quousque obligare jurantes censendum sit.

Quoniam aliis restrictior et morosior, aliis contra, laxior et discinctior est Conscientia; illi levissimos quosque lapsus suos calumniari nati sunt, et sese non sæpius immorigeros, quam perjuros esse arbitrantur; hi quoseunque legum nexus, jurisjurandi religionem, conscientiæ laqueos, strophis suis eludere satagunt: et ipsi sibi palpum obtrudunt: non abs re fore visum est explicare, quatenus seu quousque jurisjurandi, de Statutis Universitatis observandis præstiti, religione teneri seu obligari singulos censendum sit; in eoque tale temperamentum sequi, ne, vel durius interpretando, illis crucem figere; vel benignius, his fibulam laxare videamur.

Qua in re, hoc imprimis attendendum est; verbis statutorum, in quæ jurejurando quis adigitur, sensum genuinum, ut et obligationi sive vinculo juramenti, modum ac mensuram præstitui seu prescribi a mente et intentione, non præstantis, sed exigentis juramentum; scilicet ipsius legislatoris. Neque enim si quis inter jurandum, verbis, in quæ jurejurando adigitur, sensum affingat alienum ab eo, quem legislatori propositum fuisse, ipsi juranti persuasum, aliasve verisimile est (hoc est, hujusmodi sensum qui desidiæ vel socordiae faveat, quive disciplinæ Academicæ aut morum honestati repugnet) eo ipso εὐοϱϰεῖ[Editor: illegible character] illum, aut statutis vel jurisjurandi religioni satisfacere putandum est; nedum jurisjurandi religione exolutum ut putet se quis, si ad jurandum animum afferat, non obligandi seipsum, sed in nudo verborum cortice sistendi: neque poeticum illud δυσοϱϰιας remedium, seu verius colludium—Lingua juravi, mentem injuratam gero,—homini Christiano satisfacere aut potest, aut debet, eo ipso a perjurii crimine excusatum reputare se ut debeat. Quoniam igitur mensura obligationis, seu vinculi juramenti, ab intentione legislatoris præcipue pendet, operæ pretium utique fuerit, singulos mentem ac intentionem legislatoris perspectam et exploratam habere; qualis scilicet qualiumque statutorum transgressio, juratos ad omnia statuta promiscuè observanda perjurio involvat.

Intenditur igitur perjurio se obligare,

• Primò, delinquentes ... &c.
• Secundò, delinquentes ... &c.
• Tertiò, qui ... &c.

Quoad alia vero delicta; si statutorum pœnarum ve contemptus, et crassa obstinataque negligentia abfuerit, delinquentes, si pœnis per statuta sancitis, aliasve arbitrariis se submiserint, jurisjurandi religionem temerasse minimè censendi sunt. Magistratibus denique, prout major eis debetur reverentia, quàm ut pœnis passim intentatis coerceri ipsos et in ordinem cogi par sit, ita major conscientiæ obligatio incumbit; utpote qui non solum ea quæ sui muneris sunt fideliter administrare; verùm etiam, ut alii omnes suis officiis fungantur, sedulò curare tenentur. Neque tamen eos, ubicunque officiis suis defuerint, perjurio protenus se obligare intenditur. Verùm quoniam ipsorum fidei statutorum custodia et tutela concredita est, si ( quod absit) per negligentiam aut socordiam suam statuta quæcunque inusu ac desuetudine exolescere, et tacite quasi abrogari patiantur, ipsos etiam fidei violatæ ac perjurii teneri decernimus.

Appendix to the Laws,

Or Explanation of the Oath, which concerning the Observance of the University Statutes is by each person wont to be taken: how far, to wit, or to what extent, it is to be regarded as obligatory on the swearers.

Forasmuch as in some men Conscience is more strict and morose, in others more lax and loosely girded; the former are born to calumniate every the slightest of their own transgressions, and regard themselves as not more unfrequently unobsequious than perjured; the latter strive by their quibbles to elude all legal ties whatsoever, the religion of an oath, the nets of conscience, and themselves put a cheat upon themselves: it seemed to be not beside the purpose to explain to what length or how far each person ought to be considered as holden or bound by the religion of the oath, taken, touching the observance of the Statutes of the University; and therein to follow such a temperament, that, neither by too hardly interpreting it, we may appear to fasten a cross upon the one; nor by too benignly, to unbutton a button for the other.

Wherein this is in the first place to be attended to; that by the words of those statutes, in which any one is made to take an oath, the genuine sense, as also the mode and measure of and to the obligation or tie of the oath, is applied or prescribed by the mind and intention, not of him by whom the oath is taken, but of him by whom it is exacted; to wit, of the legislator himself. For neither if any one in swearing, affixeth to the words in which he is made to swear, a sense foreign to that of which he the swearer is persuaded, or on other grounds it is probable that it was that which was intended by the legislator (that is to say, such a sense as is favourable to indolence or indifference, or repugnant to academic discipline or moral rectitude,) is it to be thought that he swears rightly, or satisfies the statutes or the religion of an oath; nor yet let any one think himself released from the religious obligation of an oath, if to the act of swearing he brings the intention, not of binding himself, but of stopping at the bare bark of the words: for that poetic remedy, or rather shuffleboard to wrong-swearing—Sworn is my tongue, but unsworn is my mind—neither can nor ought to satisfy a Christian man, in such sort that he ought to repute himself thereby excused from the crime of perjury. Forasmuch, therefore, as the measure of the obligation, or tie of an oath, depends chiefly on the intention of the legislator, it would verily be worth the labour that all persons should have held the mind and intention of the legislator well seen through and explored; to wit, of what sort, and of what sort of statutes, the transgression involves in perjury those who are sworn to the promiscuous observance of all the statutes.

Accordingly, what is understood is—that those men bind themselves in perjury,

• First, who ... &c.
• Secondly, who ... &c.
• Thirdly, who ... &c.

But as to other transgressions; if contempt of statutes and punishments, and gross and obstinate negligence, are out of the case, delinquents, if they shall have submitted themselves to the punishments appointed by the statutes, or otherwise to such as are arbitrary, are by no means to be deemed to have violated the religion of an oath. Lastly, on magistrates, according as to them greater reverence is due, than that it should be right that they should be coerced and kept in order by such punishments as are all along threatened; so is a greater obligation of conscience incumbent; to wit, as being they who are bound not only faithfully to administer those things which belong to their functions; but also diligently to take care that all others do perform their respective duties. Nor yet is it understood, that they, as often as they shall have been wanting to their duties, do altogether bind themselves in perjury. But forasmuch as to their fidelity is intrusted the keeping and guardianship of the statutes, if (far be it from them!) they suffer through their own negligence or indifference any statutes whatsoever to be rendered obsolete by non-use or desuetude, and tacitly as it were to be abrogated, them also do we declare to be bound in the bonds of violated faith and perjury.

These “magistratus”—these perjurers in grain—these ipso facto convicted and thus placarded perjurers,—who are they?—The reverend the vice-chancellor—the reverend the heads of houses—the reverend and non-reverend, but for the most part reverend, masters of arts, and other the graduates of higher degrees, being members of the house of congregation and of the house of convocation respectively:—for of these is the legislative body composed. The reverend the vice-chancellor—the reverend the proctors and proproctors, all for the time being—yea, and within the precincts, logical and geographical, of their respective jurisdictions, the reverend the heads of houses, with their respective local subordinates:—for of these is the executive body composed.

Quære as to the noble the chancellor, and the noble the high steward? Upon their respective installations, or whatsoever else be the term,—by them respectively is not some such oath taken?—for are not they too “magistratus?”

On the occasion of the Catholic question, an apprehension, lest, in the breasts of some, or many, or all of the religionists of that persuasion, the ceremony of an oath should not always operate with sufficient power—lest in the person of the Pope, notwithstanding their protestations to the contrary, they should upon occasion seek and find a power, willing, and in their opinion able, to exempt them from the obligation of it;—an apprehension to some such effect was, on the part of many if not all these reverend persons, among the reasons assigned for the wish to see, now and for ever, or thereabouts, still withholden from between a fourth and a fifth part of the population of the two islands, the common rights of subjects. The obligation of an oath to be done away at pleasure by an old priest, in or out of prison, upon the continent! as if in the bosom of every one of these reverend persons, by whom the sincere milk of the word has been sucked from the breast of Holy Mother, there sat not, in the character of a perpetual Pope, with a sponge in his hand, the image of archbishop and university-legislator Laud, constantly sitting and constantly at work, watching each perjury as it peeped out, and passing over it, in the manner that has been seen, the sponge of dispensation, the instant it came to view.

II.

The Manufacture of Perjury persevered in, and the produce repeatedly augmented,—with open eyes, and in spite of remonstrances.

In pages 211 and 212, the determination to persevere in a course of universal and continual perjury, and the habit of enduring the reproach of it without flinching, rather than acknowledge, on the part of this eldest daughter of Holy Mother Church, the possibility of error, are mentioned as among the arcana imperii, inviolably observed in and by that closest of aristocracies—the government of the University of Oxford. If of so undeniable a proposition any further proof be requisite, it may be viewed in abundance in the course pursued by that government in the field of legislation for these last fifty or sixty years. Revision, not unfrequent:—revision of this very title, samples of which have here been brought to view:—Revision, but with what effect? with what view? Never with any such effect or view as that of taking anything from the number of their perjuries; not unfrequently with the effect at least of adding to it.

At the time of matriculation—such is the technical term by which admission into the body of the university is there designated—under the title of Parecbolæ sive Excerpta è Corpore Statutorum Universitatis Oxoniensis, in usum Juventutis Academicæ, an abstract of the University Statutes, containing such of them as it is thought fit that a person who is not a member of the governing body should be acquainted with, is put into his hands. It forms a well-filled 12mo volume: containing in the edition of 1756, 254; in the edition of 1794 (put into my hands within this seven months as the latest edition,) 261 pages.

In Title XV. De moribus conformandis, (being the title from which extracts are here given, as above,) in the edition of 1756 the number of sections is 14; in the edition of 1794, 16.

Whence comes this variance? The case is this: Between the date of the former edition and that of the latter, two statutes—of the number of those which it was thought fit to make known to the individuals whose conduct was to be governed, and whose fate was to be determined by them—two universally promulgated, besides seven or eight secret or partially promulgated statutes, of which presently—had been passed.

In the edition of 1794, between § 5, De ænopoliis, &c., and § 6, De nocturnâ vagatione reprimendâ, is accordingly inserted a section intituled De vehiculis (a section against Phaëtons) which, being § 6, changes the number of that which follows next to it, viz. that De nocturnâ vagatione reprimendâ, and makes it, instead of § 6, as in the above-mentioned earlier edition, § 7.

Lastly, at the end of this same title is moreover inserted an additional section, intituled De reprimendis sumptibus non Academicis, and which accordingly is numbered § 16, as will be seen presently: the day on which it passed is 16th December 1785.

In the manual in question, viz. in the edition of 1794, of neither of these additions is any intimation given; neither by mention made of their respective dates, nor otherwise.

But in this same interval, at various times, nine or ten in the whole, the body of the statutes had been taken in hand for the purpose of amendment; each time in the form of simple addition: in no one instance in the form of simple repeal: and, since the date (1794) of the above-mentioned latest edition, reckoning to the present time (March 1813) it has undergone amendment in four other instances, of which presently.

Of the interpolated section De vehiculis, I have not been able to learn the precise date. In the series of statutes at large the date, of the earliest which my inquiries have succeeded in obtaining, is 26th November 1767; of the latest, 22d June 1808: the series as far as it extends being put into my hands as a perfect one; and in this series, no statute to that effect, or on that subject, is to be found. The time at which it passed must therefore have been sometime between some part of the year 1756 and the 26th November 1767, as above.

Thus often has this same code passed under review.

To what cause, then, is the country indebted for this continually open exhibition?—an enormous and multifarious mass of perpetually violated regulations, together with the oath by which obedience is promised to them, all left standing,—standing together for so many successive ages,—impregnating the whole population of this seat and source of Church-of-England religion, and from thence that of the whole country, with a perpetually inflowing stream of perjury? Is it through inadvertence? No: but because, in regularly reverend and right reverend, not to speak of honourable and noble, eyes, if perjury be a bad sin, innovation is still worse:—innovation, in which is included the removal of evil, in every shape in which it exists at present; innovation, in the exclusion of which is included the perpetuation of abuse, in every shape in which, at the expense of the subject many, profit is derived from it by the ruling few:—an exclusion, in which may be seen a fundamental—and not the less so for being so carefully locked up in the character of a secret—article, in the only “alliance” ever spoken of that was not purely imaginary, “between Church and State.”

Thus far as to the additions made to the subject-matter of these oaths: now as to the additions made to the list of the oaths themselves. While all existing oaths continued to be thus dealt with, fresh batches of the same species of pie-crust have continued to be issued out from the same sacred oven. May 1st, 1800, a new system of examination instituted (examination for degrees:) and the efficiency declared to be rested upon the strength of this perpetually broken reed. “Tit. ix. Sect. ii. De Examinandis Graduum Candidatis: § 1. De Examinatoribus designandis et Juramento onerandis per Seniorem Procuratorem.”

Sometime in the year 1807, as may be inferred from the context (for there appears no date to it,) comes another statute with the same title, repealing, but immediately in part re-enacting, that so lately preceding one: innovating in this mode for the first time, and then no otherwise than upon a recent innovation: the first statute, as far as appears, by which, since the days of Laud, so much as a single atom of the once-consecrated mass was ever done away. By the same reverend hands, the same load is now carefully reimposed on the same reverend shoulders. With what degree of pressure and effect would any man be curious enough to calculate?—the data lie before him as above.

Moreover, though without any such idea stated as that of load or burthen, oaths have all along been sprinkled in on other occasions, and in other places, in and by the series of statutes, 13 or 14 in number, passed in the interval between 1756 and 1813.

Thus much for revisions and enactments. Now as to representations and remonstrances.

In a book published by a reverend divine (Vicesimus Knox,) then late a fellow of one of the colleges in this same seat of piety and perjury—a book of which an edition published so long ago as the year 1789 was the tenth,—a book which accordingly has had a greater currency (and thus under the very eyes of the reverend rulers in question) than perhaps ever fell to the lot of any book in which, in this or any other country, the subject of education has been touched upon—is inserted a letter to the then chancellor, Lord North, proposing a plan of reform, in which the species of perjury here in question forms the subject of the first article.

In holding up to view the universality, the constancy, the notoriety of this sin, together with the perfect consciousness of it in the minds of the reverend persons whose lives were passed in the commission of it, are employed in different parts of this his work, directly or indirectly, no fewer than 54 out of its 727 pages.

In the representations thus made by Mr. Knox, are included others of the same tendency, which at different periods had been made by three other writers: viz. in 1721, by Mr. Amhurst, under the title of Terræ Filius, in an anonymous periodical publication, reprinted in 2 vols. 12mo, in 1726: in 1725, by the Rev. Dr. Newton, Principal of Hart Hall, afterwards Hertford College, Oxford, in a tract intituled University Education, 8vo, pp. 209; and, in a year not specified, by R. Davies, M. D. of Queen’s College, Cambridge, in a letter to the Rev. Dr. Stephen Hales, the natural philosopher.

That remonstrance, though from a consecrated hand, having been productive of no other fruit than that of exposing the reverend persons in question to a sort of censure, which being rather a passport than an obstruction to preferment, is of course to such persons a source rather of satisfaction than of uneasiness, the present attempt by a lay hand cannot, howsoever fruitless, be charged with being needless.

III.

The principle of Infallibility adhered to and acted upon to the last.

In pages from 210 to 212, infallibility is mentioned as being among the attributes bestowed upon herself by the English Holy Mother Church, and accordingly acknowledged, and worshipped, and shared in, by the academic part of her metaphorical progeny. To the eye which, either in the memorials of the puritan Neale, or in those of the orthodox and highly favoured Strype, can endure to look into it, the whole history of the spiritual branch of the reign of Elizabeth is one continued body of evidence, concurring in the demonstration of this truth. Infallibility was the attribute of this church, under the governance of those princes of this church, whose thrones were subordinate to the throne of the virgin queen. These holy men were themselves the church: and the royal mistress of their lives and fortunes—who could have expelled any of them for schism, or burnt any of them for heresy—being herself the church, yea and more than the church—was not only herself infallible, but the cause that infallibility was in them.

Of the assumption of this attribute follows one proof out of a thousand: if, in such a matter, words are less conclusively probative than deeds,—yet, in such a matter, neither are words without their value.

Anno 1584: “Notwithstanding the charge of late given by your Highness,” says Archbishop Whitgift, in a letter to the queen, dated the 24th of March in that year—“notwithstanding the charge of late given by your Highness to the lower House of Parliament, for dealing in the canon of the church; albeit also, according to your Majesty’s good liking, we have sent down order . . . . yet have they passed a bill in that house touching that matter; . . . . they have also passed a bill . . . . contrary to the old canons continually observed among us, and containing matter which tendeth to the slander of this Church, as having hitherto maintained an error.”*

To impute to this assemblage of constantly-corrupted and despot-ridden churchmen—corrupted by hope of preferment, corrupted by dread of arbitrary and perpetually-impending deprivation, with ruin and either banishment or death at the end of it,—to such a set of men, at a time, too, when reason had but just begun to recover the use of her limbs,—the fact of having maintained an error—so much as one single error—this a slander! a slander, when coming from the mouth of parliament! This Church! what church?—The very church which, after having so lately revolted from her ancient mother the Church of Rome, was, at that very time, and in relation to these very points, in a state of separation from perhaps all her sister churches—from all other Protestant churches—and, at this very time, herself in a state of continual, and not as yet completed, change.

In the very facility of making this change, by the same most reverend person is an argument found, for the putting an end for ever to all pretensions so unsuitable to the limited, and continually, so it were quietly, reducible, authority of an English parliament.

“If it pass by parliament,” says he, “it cannot hereafter but in parliament be altered . . . . whereas, if it is but as a canon from us, by your Majesty’s authority, it may be observed or altered at pleasure.”

In this document we have one out of a multitude, in which, taken together, it may be seen how, of this virgin queen and her little black husband (so she was pleased to style this her favourite archbishop,)† it was the acknowledged purpose, as well as practice, to persevere in a state of continual change, secure of being as continually infallible.

In theory, such a horror of change,—and at the same time, in intention as well as in practice, so constant a state of change?—all this self-contradiction, how is it to be reconciled? The change was to go on, till—under the name of Puritans, all those who, in matters of religion, refused to change their belief, as well as practice, at the word of command, as often as issued,—and whose real crime was the preferring a government by parliament to a government without parliament,—were extirpated: after which, unless for some equally good reason, there was to be no change. And such exactly was the result.

As the laws of the Medes and Persians, so the laws called the Thirty-nine Articles (cut down as they were from a greater number) remained unchanged. But above the one code, as above the other, sat a despot, who, with his sub-despots, kept the rule of action—the inforced and efficient rule of action—viz. the will of those same despots—in a state of continual change.

So much for infallibility, and the horror of innovation:—the horror of innovation, which, being interpreted, is—the holy love of abuse, accompanied with the determination, by the blessing of providence, to give every practicable increase to it.

IV.

Habitual Perjury of the University Magistracy—further Proof of its Wilfulness.

While this last sheet is at the press, in comes the Oxford University Calendar for 1813, of I know not what series of numbers the first that ever happened to meet my eye; and in it I read (p. 8) the following passage:—

“For the better government of the University, there is also an Hebdomadal Meeting of the Heads of Houses, who meet every Monday, and at other times when convened by the Vice-Chancellor. This meeting consists of the Vice-Chancellor, Heads of Houses, and Proctors, who are empowered to deliberate upon all matters relating to the preservation of the privileges and liberties of the University, and to inquire into, and consult respecting the due observance of statutes and customs.”

In the seven preceding pages may be seen moreover a more detailed explanation of those arrangements in the constitutional branch of the law, whereby the principle of infallibility on the part of the legislature has been so systematically acted upon, and, in pursuance of it, the property of immutability given to the body of the laws, and with it that of incorrigibility to the defects with which they swarm, and the vices which they generate.

TRUTH versus ASHHURST;

or, LAW AS IT IS, CONTRASTED WITH WHAT IT IS SAID TO BE.

WRITTEN IN DECEMBER 1792.

first published in 1823.

INTRODUCTION,

WRITTEN AUGUST 1823.

A short time before the date of this paper, a charge, delivered the 19th of November 1792, to a Middlesex Grand Jury, by Sir William Ashhurst, then a Puisne Judge of the King’s Bench, was printed by the Constitutional Association of that time, and circulated with no small industry. In digging for other papers, the present one has just been dug up. The MS. copy, from which this is printed, was taken more than thirty years ago, and has not since been read by me. If in season then, let any one judge whether it be less so now; or whether it is likely to be less so, so long as the form of the government is what it is. The comment is here seen; the text was not found with it; the fidelity of the quotations may however be depended upon.

JEREMY BENTHAM.

August 27, 1823.

TRUTH VERSUS ASHHURST.

Ashhurst.—I.

No man is so low as not to be within the law’s protection.

Truth.—Ninety-nine men out of a hundred are thus low. Every man is, who has not from five-and-twenty pounds, to five-and-twenty times five-and-twenty pounds, to sport with, in order to take his chance for justice. I say chance: remembering how great a chance it is that, although his right be as clear as the sun at noon-day, he loses it by a quibble. Five-and-twenty pounds is less than a common action can be carried through for, at the cheapest: and five times five-and-twenty pounds goes but a little way in what they call a court of equity. Five-and-twenty pounds, at the same time, is more than three times what authors reckon a man’s income at in this country, old and young, male and female, rich and poor, taken together:* and this is the game a man has to play again and again, as often as he is involved in a dispute, or receives an injury.

Whence comes this? From extortion, monopoly, useless formalities, law-gibberish, and law-taxes.

How many causes, out of each of which Mr. Justice Somebody has been getting in fees, while this speech of Mr. Justice Ashhurst’s has been printing, more in amount than many a poor family has to live upon for weeks! For so long as you have five pounds in the world, no fee, no justice. O rare judges! While their tongues are denying the mischief, their hands are making it.

How should the law be otherwise than dear, when those who pocket the money have had the setting of the price?—when places, that help to make it so are, as all the world knows, some given, and some sold by them? A list of places of this sort, which Mr. Justice Ashhurst, or those to the right and left of him, sell directly or indirectly, aboveboard or under the rose, with the profits of each, and how they arise, would be no unedifying account: but where is the Parliament that will call for it?

What comes, then, into their own pockets, heavy as the expense falls upon the poor suitor, is nothing in comparison of what they see shared among their brethren of the trade,—their patrons, and bottle-companions, and relations and dependents. Ten thousand a-year the average gains of a first-rate counsellor, and attorney’s in proportion. Three hundred pounds the least fee that is ever taken for going from one circuit to the next. Three or four such fees earned sometimes in a day—country attorneys, town attorneys, and attorneys with purchased places attached to particular courts—conveyancers, special pleaders, equity-draughtsmen, opening counsel, and silk-gowns-men,—all separate, and not unfrequently all to fee in the same cause. When Mr. Justice was a counsellor, he would never take less than a guinea for doing anything, nor less than half a one for doing nothing. He durst not if he would: among lawyers, moderation would be infamy.

Why is it that, in a court called a court of equity, they keep a man his whole life in hot water, while they are stripping him of his fortune? Take one cause out of a thousand. Ten appointments have I known made for so many distinct days before a sort of judge they call a master, before one of them has been kept. Three is the common course; and as soon as everybody is there, the hour is at an end, and away they go again. Why? Because for every appointment the master has his fee.

Some of these law places are too good to be left to the gift even of judges: of these, which bring in thousands upon thousands a-year, the plunder goes to dukes and earls and viscounts, whose only trouble is to receive† it.

As if law were not yet dear enough—as if there were not men enough trodden down “so low as not to be within its protection,” session after session, the king is made to load the proceedings with taxes, denying justice to all who have not withal to pay them: all this in the teeth of Magna Charta. “We will deny justice”—says King John—“we will sell justice to no man.”—This was the wicked King John. How does the good King George? He denies it to ninety-nine men out of a hundred, and sells it to the hundredth.

The lies and nonsense the law is stuffed with, form so thick a mist, that a plain man, nay, even a man of sense and learning, who is not in the trade, can see neither through nor into it: and though they were to give him leave to plead his own or his friend’s cause (which they won’t do in nine cases out of ten) he would not be able to open his mouth for want of having bestowed the “twenty years lucubrations,”* which they owned were necessary to enable a man to see to the bottom of it, and that, when there was not a twentieth part in it of what there is at present.

When an action, for example, is brought against a man, how do you think they contrive to give him notice to defend himself? Sometimes he is told that he is in jail: sometimes that he is lurking up and down the country, in company with a vagabond of the name of Doe; though all the while he is sitting quietly by his own fireside: and this my Lord Chief Justice sets his hands to. At other times, they write to a man who lives in Cumberland or Cornwall, and tell him that if he does not appear in Westminster Hall on a certain day he forfeits an hundred pounds. When he comes, so far from having anything to say to him, they won’t hear him; for all they want him for, is to grease their fingers.

That’s law: and now you shall see equity. Have you a question to ask the defendant? (for no court of law will so much as let you ask him whether his hand-writing be his own) you must begin by telling him how the matter stands, though your very reason for asking him is your not knowing. How fares it with truth all this while? Commanded or forbidden, according as a man is plaintiff or defendant. If you are a defendant, and tell lies, you are punished for it; if you are plaintiff, and will not tell lies, you lose your cause.† They won’t so much as send a question to be tried by a jury, till they have made you say you have laid a wager about it, though wagers they tell you are illegal. This is a finer sort of law they call equity—a distinction as unheard-of out of England, as it is useless here to every purpose but that of delaying justice, and plundering those who sue for it.

Have you an estate to sell? Sometimes you must acknowledge it to belong to somebody else; sometimes see it taken from you by the judges, who give it to somebody else, with an order upon the crier of the court to give you such another: though, had it been given to your heirs for ever, you might have sold it without all this trouble. Is this specimen to your mind, my countrymen? The law is the same all over. Enemies to truth, because truth is so to them, they do what in them lies, to banish her from the lips and from the hearts of the whole people.

Not an atom of this rubbish will they ever suffer to be cleared away. How can you expect they should? It serves them as a fence to keep out interlopers.

Ashhurst.—II.

The law of this country only lays such restraints on the actions of individuals as are necessary for the safety and good order of the community at large.

Truth.—I sow corn: partridges eat it, and if I attempt to defend it against the partridges, I am fined or sent to jail:‡ all this, for fear a great man, who is above sowing corn, should be in want of partridges.

The trade I was born to is overstocked: hands are wanting in another. If I offer to work at that other, I may be sent to jail for it. Why? Because I have not been working at it as an apprentice for seven years. What’s the consequence? That, as there is no work for me in my original trade, I must either come upon the parish or starve.

There is no employment for me in my own parish: there is abundance in the next. Yet if I offer to go there, I am driven away. Why? Because I might become unable to work one of these days, and so I must not work while I am able. I am thrown upon one parish now, for fear I should fall upon another, forty or fifty years hence. At this rate, how is work ever to get done? If a man is not poor, he won’t work: and if he is poor, the laws won’t let him. How then is it that so much is done as is done? As pockets are picked—by stealth, and because the law is so wicked that it is only here and there that a man can be found wicked enough to think of executing it.

Pray, Mr. Justice, how is the community you speak of the better for any of these restraints? and where is the necessity of them? and how is safety strengthened or good order benefited by them?

But these are three out of this thousand: not one of them exists in France.

Lawyers are very busy just now in prosecuting men for libels: these prosecutions I suppose are among the wholesome restraints Mr. Justice thinks so necessary for us. What neither Mr. Justice Ashhurst, nor Mr. Justice Anybody-else, has ever done, or ever will do, is to teach us how we are to know what is, from what is not, a libel. One thing they are all agreed in—at least all among them who have had any hand in making this part of the law—that if what they call a libel is all true, and can be proved to be so, instead of being the less, it is the more libellous. The heavier, too, the charge, of course the worse the libel: so that the more wickedly a judge or minister behaves, the surer he is of not hearing of it. This we get by leaving it to judges to make law, and of all things the law of libels. Protection for the thief: punishment for him who looks over the hedge.—Oh, my dear countrymen, I fear this paper is a sad libel, there is so much truth in it.

I know of a young couple who had £28,000 between them, and who could not get married till they had given up £2700 of it: the lawyer’s bill for the writings came to that money. You, Mr. Justice Ashhurst, who know so well what is orderly and what disorderly, tell us which is most disorderly—truth, industry, or marriage?

Ashhurst.—III.

Happily for us, we are not bound by any laws but such as are ordained by the virtual consent of the whole kingdom.

Truth.—Virtual, Mr. Justice?—what does that mean? real or imaginary? By none, do you mean, but such as are ordained by the real consent of the whole kingdom? The whole kingdom knows the contrary. Is the consent, then, an imaginary one only? A fine thing indeed to boast of! “Happily for you,” said Muley Ishmael once to the people of Morocco, “happily for you, you are bound by no laws but what have your virtual consent: for they are all made by your virtual representative, and I am he.”

Look at this law, my friends, and you will soon see what share the consent of the whole kingdom has in the making of it. Half of it is called statute law, and is made by parliament: and how small a part of the whole kingdom has anything to do with choosing parliament, you all know. The other half is called common law, and is made—how do you think? By Mr. Justice Ashhurst and Co. without king, parliament, or people. A rare piece of work, is not it? You have seen a sample of it. I say, by the judges, and them only; by twelve of them, or by four of them, or by one of them, just as it happens: and you shall presently see how. This same law they vow and swear, one and all, from Coke to Blackstone, is the perfection of reason: the reason of which you are at no great loss to see. Their cant is, that they only declare it, they don’t make it. Not they? Who then? Not Parliament, for then it would be not common law, but statute.

Ashhurst.—IV.

Happily for us, we are not bound by any laws but such as every man has the means of knowing.

In other words:—

Every man has the means of knowing all the laws he is bound by.

Truth.—Scarce any man has the means of knowing a twentieth part of the laws he is bound by. Both sorts of law are kept most happily and carefully from the knowledge of the people: statute law by its shape and bulk; common law by its very essence. It is the judges (as we have seen) that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won’t tell a man beforehand what it is he should not do—they won’t so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it. What way, then, has any man of coming at this dog-law? Only by watching their proceedings: by observing in what cases they have hanged a man, in what cases they have sent him to jail, in what cases they have seized his goods, and so forth. These proceedings they won’t publish themselves, and if anybody else publishes them, it is what they call a contempt of court, and a man may be sent to jail for it.*

If, then, you can be in the four Westminster Hall courts, and the twelve circuit courts, and a hundred other such places at once—if you can hear everything and forget nothing—if the whole kingdom can squeeze itself into a place contrived on purpose that it may hold none but lawyers—if it can live in those places for ever, and has always lived in them,—the “whole kingdom” may have that knowledge which Mr. Justice says it has of the law; and then it will have no further difficulty, than to guess what inference the judge or judges will make from all this knowledge in each case.

Counsellors, who have nothing better to do, watch these cases as well as they can, and set them down in their note-books, to make a trade of them; and so, if you want to know whether a bargain you want to make, for example, will stand good, you must go with a handful of guineas in your hand, and give half of them to an attorney, for him to give t’other half to a counsellor; and, when he has told you all is right, out comes a counsellor of the other side with a case of his own taking which his brother knew nothing of, which shows you were in the wrong box, and so you lose your money. Some of them, to drive a penny, run the risk of being sent to jail, and publish their note-books which they call reports. But this is as it happens, and a judge hears a case out of one of these report-books, or says it is good for nothing, and forbids it to be spoken of, as he pleases.

How should plain men know what is law, when judges cannot tell what it is themselves? More than a hundred years ago, Lord Chief-Justice Hale had the honesty to confess he could not so much as tell what theft was; which, however, did not prevent his hanging men for theft.* There was then no statute law to tell us what is, or what is not, theft; no more is there to this day: and so it is with murder and libel, and a thousand other things; particularly the things that are of the most importance.

“Miserable,” says that great Lord Coke, “miserable is the slavery of that people among whom the law is either unsettled or unknown.” Which, then, do you think is the sort of law, which the whole host of lawyers, from Coke himself down to Blackstone, have been trumpeting in preference? That very sort of bastard law I have been describing to you, which they themselves call the unwritten law, which is no more made than it is written—which has not so much as a shape to appear in—not so much as a word which anybody can say belongs to it—which is everywhere and no where—which come from nobody, and is addressed to nobody—and which, so long as it is what it is, can never, by any possibility, be either known or settled.

How should lawyers be otherwise than fond of this brat of their own begetting? or how should they bear to part with it? It carries in its hand a rule of wax, which they twist about as they please—a hook to lead the people by the nose, and a pair of sheers to fleece them with.

The French have had enough of this dog-law; they are turning it as fast as they can into statute law, that everybody may have a rule to go by: nor do they ever make a law without doing all they can think of to let every creature among them know of it. The French have done many abominable things, but is this one of them?

Have you a mind, my countrymen, to see two faces under one hood? Hear two juries charged—a grand jury, and a petty:—“Gentlemen of the Grand Jury! You and everybody may know what the law is if you please: you are bound by none that you have not the means of knowing.”—“Gentlemen of the Petty Jury! The fact is all you ever have to do with: it is our business to say what the law is; for say what you will, it is impossible that you should know anything about the matter.” This was the language of Mr. Justice and his brethren, till parliament, t’other day, in spite of their teeth, taught them a better lesson.—God bless the parliament!—No dog-law!—Parliament for ever!

Mind this teacher of “peace” and subordination: according to him, if there are any laws which are made otherwise than “with the consent of the whole kingdom,” or, that “every man has not the means of knowing, we are not bound” by them. And this he calls a happiness for us.† God ever keep us from such happiness! Bad as the law is, and badly as it is made, it is the tie that holds society together. Were it ten times as bad, if possible, it would still be better than none: obey it we must, or everything we hold dear would be at end.

Obey it we must: but, to obey it, must we not know it? And shall they whose business it is to make and obey it, be suffered to keep it from us any longer?

Now I will tell you, my dear countrymen, what Mr. Justice knows better things than to tell you; how it is, that what he would make you believe about every man being his own lawyer might be made true. If what there is good of common law were turned into statute: if what is common in both to every class of persons were put into one great book (it need not be a very great one,) and what is particular to this and that class of persons were made into so many little books, so that every man should have what belongs to him apart, without being loaded with what does not belong to him. If the general law-book were read through in churches, and put into boys’ hands, and made into exercises when they are at school; and if every boy, when he came of age, were to produce a copy of it written with his own hand before he were allowed a vote or any other privilege; and if this general law-book contained a complete list of the particular ones, and measures were taken for putting them, and each of them, into each man’s hand, as soon as the occasion happened which gave him a concern in it.

But then the matter of these law-books must be made up into sentences of moderate length, such as men use in common conversation, and such as the laws are written in in France, with no more words than necessary: not like the present statutes, in which I have seen a single sentence take up thirteen such pages as would fill a reasonable volume, and not finished after all: and which are stuffed with repetitions and words that are of no use, that the lawyers who draw them may be the better paid for them. Just like their deeds, such as you may see in any attorney’s office, each filling from one to a hundred skins of parchment, long enough to reach the breadth or the length of Westminster Hall; all which stuff you must carry in your mind at once, if you would make head or tail of it, for it makes altogether but one sentence; so well do they understand the art of poisoning language in order to fleece their clients. All which deeds might be drawn, not only more intelligibly, but surer, in short sentences, and in a twentieth part of the room. A complete set of them might be adapted to all occasions to which there are any adapted of those at present in use, and would have been drawn years ago, had there been any hope of seeing them made use of.

Now, God bless our good King George, preserve and purify the Parliament, keep us from French republicans and levellers, save what is worth saving, mend what wants mending, and deliver us out of the clutches of the harpies of the law!

A Card to John Reeves, Esq. Barrister at law, Chief-Justice of Upper Canada, Chairman of the Society calling itself “The Society for preserving Liberty and Property against Republicans and Levellers,” held at the Crown and Anchor Tavern, in the Strand.

Mr. Reeves says, he knows the English law, and that he knows the spirit of it. He has written the history of it in four volumes: he ought to know it; he ought to know whether what is here said of it is true: he knows this charge of Mr. Justice Ashhurst; he says, it “breathes the spirit of the English law.” He ought to know this charge, and what spirit it breathes: he adopts it, he trumpets it, he circulates it. He says, it is suited to curb the licentious spirit of the times, and so well suited, that it must be read with heartfelt satisfaction by every true Englishman. What is thought suited to produce an effect, does not always produce it: in one instance, at least, this charge, instead of curbing, has had the effect of provoking a spirit, which it would be nothing wonderful if Mr. Reeves were to deem licentious. Whether the spirit thus provoked has less in it of the spirit of a true Englishman, of a friend to subordination, as well as good government—to strict, as well as rational obedience, than the spirit of those who wrote, or those who answer for, and trumpet forth, this charge, the reader may determine. Mr. Reeves will see this comment on it; he will see whether there is any thing in this comment that he can controvert: if he can, and will, he who wrote it is ready to defend it, and if Mr. Reeves makes that a condition, to set his name to the defence.

Mr. Reeves is, amongst other things, a judge, and receives money for administering justice to Canada. Instead of that, he stays at home, makes parties, and circulates papers that deny and protect the abuses of the law. How is this? Is it that justice is useless to Canada, or that Mr. Reeves is useless to justice?

London, December 17, 1792.

NOTE AT THE CONCLUSION.

It is not altogether without compunction, that this conclusion is suffered to stand: so striking is the contrast, which, according to all accounts, the intrepidity and gentleness, manifested by this gentleman in the execution of a justly odious office, has since been seen forming, with the atrocity displayed in the creation and preservation of it. Next to the non-creation, or abolition, of the alien office, would have been the keeping the powers of it in the hands of Mr. Reeves.—August 27, 1823.

THE KING against EDMONDS AND OTHERS:

SET DOWN FOR TRIAL, AT WARWICK, ON THE 29^th OF MARCH 1820.

BRIEF REMARKS, tending to show THE UNTENABILITY OF THIS INDICTMENT.

BY JEREMY BENTHAM, ESQ. BENCHER OF LINCOLN’S INN.

first published in 1820.

To the Jurymen of Warwickshire (perhaps also to those of Cheshire,) and such other persons whom it may concern.

Queen’s-Square Place, Westminster,
March 27, 1820.

Fellow-Countrymen,

From the public prints, I understand, that antecedently to the late trial of Sir Francis Burdett at Leicester, the jurymen, or some of them, had received an anonymous letter having reference to that trial, and that that letter had been spoken of as a threatening one. This paper is not anonymous, and there are no threats in it.

That which, to the purposes of substantial justice, is of real and undeniable importance is—that those persons, from whom the decision comes, should have had before them whatsoever information may be of a nature to secure the justice and propriety of that decision. Those things, which are of no importance to those same purposes, are—the hands from which the information comes, and the forms which accompany the delivery of it.

If, in the mode of delivery, there were anything of partiality or surprise—if, of alleged facts, communication were made, without their having been subjected to the requisite tests, employed as securities for trustworthiness, thus far the mode of delivery might be censurable, whatsoever credence, if any, were eventually given to the alleged facts.

In the delivery of the following paper, care has been taken that no such partiality or surprise shall have place. Copies will be delivered, not only to all persons who shall have been regarded as likely to be among the jurymen, for the trial of this cause, but to attorneys and counsel on both sides, and even to the judge. As to alleged matter of fact, capable of operating in the way of evidence, no such thing will the paper be found to contain in it: with the exception of what relates to the state of libel law in the United States, and that only in the way of illustration: the rest is all of it matter of mere argument, grounded on the state of English law as applied to no other than notorious facts.

Whatever, if any, may be the guilt of this address, the defendants in this cause are completely innocent of it. Not through any of their hands will it pass to any others. With no one of them has any communication on the subject ever been made by me. By no one of them is it any more expected, than by any other person who will receive it.

JEREMY BENTHAM.

BRIEF REMARKS, &c.

A prosecution, more palpably groundless than this upon the very face of it may be seen to be, surely was never instituted.

In no part of it, is any specific and determinate criminal act so much as charged.

This is the main thing to be shown: and, for the purpose of the individual prosecution in question, this would be abundantly sufficient.

But, worded as it is, even if there were ever so many specific and determinate criminal acts, not only alleged but proved, still, without an incontestable violation of the juryman’s oath, no verdict of guilty could be pronounced upon it. Of the proof that will be seen of this proposition, the use looks much further; even the proof would be found perhaps to apply to every indictment that, for centuries past, has ever been preferred: the use will be seen to apply to every one that will be preferred, unless kept clear from the foul spots which will here be brought to view.

I. To begin with those grounds of acquittal which apply more particularly to this individual indictment. Not but that those of them, which are of most extensive importance, would be found to have a not less proper and pointed application to another, which is said to be set down for trial on the same circuit; namely, that of the King against Sir Charles Wolseley, Baronet, and Joseph Harrison set down to be tried at Chester assizes, commencing on the 4th of April in the same year 1820.

1. First, then, as to those grounds of acquittal, which apply, in a particular manner, to this one individual prosecution, as characterized by the bill of indictment on which the above defendants are about to be tried.

In this indictment, I observe no fewer than nine distinct counts. All that is material, I observe to be comprehended in the first of them.

The enormous quantity of surplusage, of which the matter of the others is composed—surplusage, consisting of repetitions and distinctions without differences, may serve to indicate the character of the prosecution; but, unless in the way above alluded to, and which will be hereinafter particularized, adds nothing to the demand for acquittal; and, with this remark, may accordingly be dismissed.

In the indictment, in the King against Wolseley as above, there are but two counts. In the general character of the offence, it differs not from this. With equal propriety might the matter of the seven counts with which this is loaded have been stuffed into that: and, if the second count in it may be set down to the account of surplusage, still the quantity of vexation and expense thereby manufactured in that instance, will not be more than one-eighth of the quantity manufactured in this.

If, throughout the whole field of thought and action, there be any such things as innoxious and irreproachable acts, surely those which are here charged as criminal, will, upon the very face of the charge, be seen to be of that number.

To begin with the act which forms the characteristic article in the cluster of imputed crimes.

It consists in the appointment of an agent, who, under the denomination of Legislatorial Attorney, shall, it is intended, claim—claim by letter to the Speaker—admission into the House of Commons, in the character of Member for the town of Birmingham.

Well—and, in this, what is there that is criminal? On receipt of this letter, the Speaker either gives the admission demanded, or he does not.

If yes, here at any rate is no crime; unless the Speaker is an accomplice in it.

If no, what is the consequence? The legislatorial attorney takes his departure, and there the business ends.

Was it to force his way in, that he was to be sent?—to force himself in, or to be forced in by others? This is not so much as insinuated.

What claim, at the hands of law or government, was ever made, that might not, with as fair a colour of justice, have been charged upon a man as a crime?

As to the thing claimed—

Claim of a seat in the House, as preferred by petition in any the most ordinary mode?

Claim of a pew in a church?

Claim of a seat in a government or other public office?

Claim of an apartment in a private house?

As to the mode of claiming it—

In the case of the seat, motion for quo warranto information to try the right of certain descriptions of electors, or action at law, aiming, more or less directly, at that same object.

In the other cases, action of ejectment, action of trespass, or other action or suit of the most ordinary complexion, as the case may be.

So much as to the end in view, and the last in the list of the means, by which the accomplishment of that end is alleged to have been aimed at.

Equally clear it will be that, upon the face of the charge, there was nothing at all criminal in any of the anterior means employed in relation to that same end.

Here, however, if nothing criminal is charged, something of a criminal complexion seems to be insinuated. A large number is assigned as the number of the persons, who, on the occasion in question, for the purpose in question, were assembled:—A large number; and, from the mere magnitude of the number, the criminality of intention is required to be inferred. That number is twenty thousand or more.

Twenty thousand? Well, and if twice twenty thousand, what then? Not as yet was that law in existence under which the number of persons standing in the presence of each other, without any evil act, or perceptible evil intention, has been made to constitute an offence.

Twenty thousand? Well—and suppose it had been two hundred thousand. Of the multitudinousness of it, what would have been the effect? No mischief, in any assignable shape, having ensued, the greater the multitude, the clearer and stronger the proof of the innoxiousness of everything that was intended to be done? Why? Because, the greater the multitude prepared to co-operate in a scheme of mischief, the greater the facility for the accomplishment of it. These were the means: no power of resistance anywhere. These were the irresistible means of mischief, and no mischief done or attempted: towards any such attempt, not any the least preparation made. Instead of proof of mischievous intention, here surely is as complete proof of the absence of all mischievous intention as it is possible to conceive.

Well, but something more is charged as having been intended, and something more is charged as having actually been done.

The other things charged as intended—as being the things, for the doing of which the meeting was brought about, and took place, are—the procuring the adoption of the assembly for certain written discourses, alleged copies of which are accordingly set forth.

The things charged as done are—the giving the desired adoption to those same written discourses, and the delivery of certain spoken speeches, having, for their object, the obtaining of that adoption.

As to the written or printed discourses,—of the accuracy of the alleged copies, the defendants surely, supposing them even to have just ground, could scarcely, as it should seem, find any motive for starting a doubt. In any one of them, if there be anything criminal, then of every newspaper that has been published for the last half century (to go no further,) the publication has been a crime. On this supposition, unless it be in the way of undiscriminating praise, nothing that in that time has been published on the subject of the constitution, or any part of it, can have been published without a crime.

Remain, the speeches alleged to have been spoken,—spoken, without having, on the part of the speakers, been committed to writing: and of which, accordingly, no alleged copies are set forth.

These, of course—for what could be easier than to say so?—were “seditious, malicious, inflammatory,”—in a word, everything that was bad.

Well: this is what is said of them. But the alleged speeches themselves, of which all this is said, what were they? Oh, this is what the defendants were not to be permitted to know. They might have questioned the evidence: they might have opposed it by counter evidence: they might have questioned the inferences: they might have opposed them by arguments. Accordingly, of these the tenor is not so much as professed to be given, nothing but what is called the “substance.”

As to this alleged substance, it so happens that I have not as yet obtained information what it was. But what matters it?

For words alleged to have been spoken to the prejudice of an individual, no action can be maintained, unless the very words are set forth: no action, of which the worst result to the defendant is mere pecuniary loss. In the present case, to pecuniary loss to any amount may be added imprisonment to any amount.

As to these discourses, written and spoken together, suppose, for argument sake, there had been anything criminal in them, if justice, as well as vengeance had been the object, they would (would they not?) have been made the only matter of the indictment. To add to them those other acts and designs, which are so plainly clear of all criminality, what better object can it have had than that of causing lawful actions to be confounded with unlawful ones, confounded in the minds of the jury, confounded in the sentence of the judge?

Well then—in no one of all the acts here charged—in no one of them, supposing them all proved—is anything either criminal, or so much as in any way improper, to be found. On what, then, can have rested any hopes that may have been entertained of seeing the accusation followed by conviction? On nothing but certain other imputations of supposed intention: imputations, in regard to which let it be judged whether they can have had their origin in any other source than the passions by which the prosecution was produced.

Now then, as to these ulterior alleged original intentions, what are they?

Intentions, yea, and conspiracy, to produce certain undesirable effects, of a general description, at indefinitely distant periods. As to the conspiracy, this will be considered by and by.

As to the undesirable effects, they are—

1. Discontent and disaffection in the minds of the liege subjects, and so forth.

Hatred and contempt of the government and constitution of this realm as by law established.

As to the contempt, let it suffice to observe, that, from persons in the one situation, towards persons in the other, the existence of any such sentiment not being possible in any instance, could not be possible in that instance: hatred in any quantity: yes: but towards any man, on whose will he sees his fate dependent, no man, who was in his senses, ever entertained any such sentiment as contempt. Contempt on account of this or that particular feature in the other’s character, yes: but this is nothing to the purpose. By no such particular contempt, so long as fear remains, can contempt, to any practical purpose, be constituted.

Ferdinand the embroiderer was contemned. Yes: but Ferdinand the torturer, was he the less feared?

Remain, discontent, disaffection, and hatred. But these, what are they but shades of one and the same sentiment (call it what you will) emotion, passion, affection, or state of mind?

On a charge of this sort, suppose a verdict of guilty to be pronounced, and an uniform series of such verdicts, for such a cause, assured,—consider what would be the consequence. What is called the liberty of the press would thenceforward be not merely useless, but much worse than useless. Supposing misrule to have place, newspapers, instead of being a check upon it, would be exclusively an instrument of it, and a support to it. Liberty of exposing it? No: liberty of justifying it and praising it? Oh yes: full liberty, and gain too, into the bargain. Such, if the system here pursued be constantly acted upon—such, it will be seen, will be the liberty of the press.

At this time, behold already the system of libel law brought out in all its perfection. First came this and the other indictments: then, as if in acknowledgment of their insufficiency and untenability, came the statutes in which the same principle is adopted, is applied to practice, and is made to receive the sanction of the legislature: the legislature—including that House, by which its own acknowledged corruptions are thus defended against all possibility of remedy.

The principle is—that, in so far as the conduct of the men in power, whoever they are, is in question, or the state into which, by their conduct, the rule of action, in all its several parts, has been brought,—no discussion shall have place, either in spoken speech, or in writing—neither evidence, nor argument, shall be employed—on any other than one side, and that side theirs: in a word, it may be styled the principle of despotism, as applied to political discourse.

Talk of liberty indeed! So far as depends upon the definition of a libel, whether made under that sort of law which is made by parliament, or that sort of law, which, on pretence of being declared, is made by judges,—the liberty of praise always excepted, see and judge whether, in speaking of the conduct of government, or of “the members of government,” there be any more liberty in England (not to speak of Scotland) than in Morocco.

Look first to the sort of law the judges make. Look to the great manufactory of the political branch of penal law—the King’s Bench.

To go no further back than the middle of the late reign,—for this will be quite sufficient—

Look to the year 1792. See what Lord Kenyon says:* “I think this paper” (in the Morning Chronicle) “was published with a wicked, malicious intent, to vilify the government, and to make the people discontented with the constitution under which they live. That is the matter charged in the information: that it was done with a view to vilify the constitution, the laws, and the government of this country, and to infuse into the minds of his Majesty’s subjects a belief that they were oppressed; and, on this ground, I consider it as a gross and seditious libel.”

Look onwards now to 1804. See what Lord Ellenborough says:† “If in so doing, (‘exhibiting the folly or imbecility of the members of the government,’) individual feelings are violated, there the line of interdiction begins, and the offence becomes the subject of penal visitation.”—“If individual feelings are violated,”—i. e. in plain English, if, on the part of any one of the persons so situated, any uneasiness is in this way produced,—as often as any written discourse, productive of this effect, is published, every person instrumental in the publication is to be punished for it. Now, if there be any sort of proof by which, more than by any other, a man’s having experienced uneasiness, from the cause in question, is effectually demonstrated and put out of doubt, it is surely the fact of his having imposed upon himself the expense, and trouble, and odium, of prosecuting for it. Admit but this, the consequence is as satisfactory as it is simple. It is—that, in every case of libel “on the members of the government,” the very act of prosecution is conclusive evidence of the guiltiness of the party prosecuted, and a verdict of guilty ought to follow, of course.

Look back for a moment at Lord Kenyon, Speak but a word in any such “view as that of infusing into the minds of his Majesty’s subjects any such belief as that they are oppressed,”—the writing in which you say this is “a gross libel,” and your punishment,—or, as the piety of Lord Ellenborough phrases it, your “visitation,” is, of course, proportionable. Now suppose, for argument sake, that, in any one instance, it has happened to these fortunate subjects, or any one of them, to have actually been oppressed: is he to presume to take any such liberty as that of saying so? No: not if Lord Kenyon, or Lord Ellenborough, or (one may almost venture to say) Lord Anybody else in that place, with their penal visitations, can stop his mouth.

A constitution—a government—a set of laws, under which, if all men were oppressed to the uttermost, no man could, without being punishable, dare to say that any men are oppressed—punishable in a way which, to nine-tenths, or nineteen-twentieths, would be utter ruin,—such, in this country, are the constitution, the government, the whole fabric of the laws, according to the view so repeatedly and uniformly taken and given of them in the King’s Bench.

The more closely the nature and consequences of this doctrine are looked into, the more clear will be our conception of the influence it can not but have on the character of the constitution, on the goodness of the government, on the condition of the people. The more grinding the oppression exercised, and the more flagitious the conduct of those who exercise it, the more flagitious must, according to this doctrine, be the crime, and the more excruciating the intended punishment, of those who presume to bring to view all or any of these things as they are: the more corrupt and tyrannical the state of the government—of the law—constitutional branch and other branches taken together—the more flagitious and unpardonable must be the crime of representing it to be what it is.

How should this be otherwise? In so far as he has any regard for the public interest, his own share in it included—the more highly detrimental to that interest any measure of government, any arrangement of law, any misconduct on the part of the “members of the government,” or any one of these, is,—the more intense the displeasure which, by the view of the imperfection in question, will have been kindled in the mind of that man. But, the more highly detrimental it is in his own conception, the more pernicious, in so far as depends upon him and his report of it, will it be, in the conception of all such other persons, to whom the conception he has formed in relation to it shall have come to be known. To use the words of the indictment, the more intense “the discontent, the disaffection, the hatred,” produced by the oppression, in the breast of any man who speaks of it, the more anxious and industrious will he naturally be to communicate the like affections to others, and the greater the number of those to whom, in so far as he succeeds, he will have communicated it. But the more intense and extensive the displeasure thus seen to be excited, as towards them, the greater, of course, the injury done to the beings in question—to the beings of both sorts spoken of: to the ideal beings above mentioned; and to the real beings, those “members of government,” whose “individual feelings,” be their conduct what it may, are thus to be kept from “violation” at any price: as to the constitution, with its et ceteras, the more tyrannical and corrupt it is, the more justly and severely “visitable” will be the crime of him who has dared to speak of it as being what it is: as to the oppressor whom it has bred, and who in his turn upholds it, the more flagitious the oppression he exercises has been, the more flagitious and severely visitable is the oppressed individual, who has dared to speak of him as being what he is.

Not to speak of any other indictment—to profess to give effect to the principles acted upon by this indictment, and by the statutes by which it has been followed—to profess this, and, at the same time, to profess to allow to go unpunished any writer whatsoever, who presumes, in any way, to question the propriety either of any part of the rule of action—real or imaginary—statute law or common law—or of the conduct of any one of the “members of the government,” is surely a contradiction in terms. Say what you will, if it be to any such effect, what you say either has no tendency at all, or it has that same forbidden and punishable tendency: in saying it, either you have no view at all, or you have that same forbidden and punishable view.

Discontent, disaffection, hatred—the objects—the affections indicated by these words,—who does not see, that these are but so many degrees in the scale of disapprobation or displeasure? But, in the words disapprobation and displeasure, we have the names of an affection or emotion, the degrees of which rise, one above another, in a scale, the lowest point of which is at apathy, and the highest at madness; and of no one of these degrees is it possible for words to convey any such description as can enable a man to distinguish the place it occupies on the scale. On this occasion, or on that other occasion—in a word, on any occasion—what is the degree a man may be allowed to feel? what is the degree a man may be allowed to endeavour to communicate? By the same object by which one degree of disapprobation is produced in the breast of one man, another degree will be produced in the breast of another: in the same breast it will at one moment be at one degree, at another moment at another.

Will men allow of no written expression of disapprobation or displeasure whatsoever? then, without self-contradiction in terms, they cannot allow of complaint. Not to speak of remonstrances, away go all petitions for redress. Here would be an improvement! How commodiously, by this means, would the business of government be simplified! Yes; could it but be accomplished: but, as yet, that may be too much to look for. Will they then allow of any such expression? Let them then make known what the degrees are which they will allow, and what those are which they will not allow. Let them make known what, on each occasion, are the degrees which they will allow to be felt, what the degrees which they will allow to be expressed, what the degrees which they will allow to be endeavoured to be “excited” and “stirred up.” Of these several degrees, let them give such descriptions as shall render it possible, at least, for a man to know what degree he may, on each occasion, give expression to, without being “visited,” and what he may not give expression to, without being “visited.” Let them, in a word, construct, and, along with the statutes at large, expose to sale, an appropriate pathological thermometer: an instrument, by which shall be indicated the degrees of mental caloric allowed to have place, as being favourable to the health of the body politic, as, in an ordinary thermometer, in a line with the word temperate, the degree of physical caloric regarded as most favourable to the health of the body natural is indicated. This done, then, and not before, will be the time for “visiting,” with justice and with effect, discourses tending to the production of the undesirable sentiments, affections, and states of things indicated by the words discontent, disaffection, hatred, and whatsoever other similar ones may be in store. This not done, they not only leave exposed to undue punishment, the restless men who stand exposed to the temptation of thus offending, but, what is so much worse, they leave their own high pleasure continually unfulfilled, and their own “individual” and precious “feelings” as continually violated.

Oh, but (says somebody) when Lord Kenyon spoke of the published intent of “vilifying the government,” and so forth, and thereby of producing “discontent,” as a thing not to be endured, what his learned lordship meant was—not the presenting facts to view—facts, whatever were their tendency—but comments—comments pouring down, in scurrilous and offensive terms, reproach upon the persons, ideal or real, and thus “violating thefeelings” of the real ones. So it was with Lord Kenyon: and therefore so it was with Lord Ellenborough; for these two were one.

Alas, sir! comments were indeed in their lordships’ view, but facts were not the less so: facts were what they had in view the suppression of, and that with still greater anxiety than any comments, how reproachful soever, that could be made on any such facts. On prosecution for a libel, whether by indictment or information, if the libel be a political one, if the persons struck at are “members of the government,” is not the truth of the imputation, according to all manufacturers of King’s-Bench law, no justification, nor so much as extenuation?—according to some of them, even an aggravation of the crime?

Now then, if we come to “individual feelings,” and the things that violate them, by what is it that they are likely to be most sensibly violated? Is it by mere words of empty reproach—words, by which nothing else is proved, but the anger which the utterer feels, or would be thought to feel, as towards the object against which they are uttered; and from which any bad effect that is produced upon reputation is no less apt to attach upon the reputation of the party reviling, than upon that of the party reviled? Is it by such empty sounds, or is it by words by which determinate facts are brought to light—misdeeds by which, in proportion to their enormity, the reputation of the misdoer is soiled and depressed?

Which would give you most uneasiness (answer me, whoever you are,) to be called a thief, or to be proved to be one?

Now then, if I were a juror, under any such indictment, would I, for anything that a man had been proved to have said, either in speech or in writing, against any of those exalted personages, ideal or real, on any such ground as that of an alleged tendency to produce discontent, disaffection, or hatred,—would I join in a verdict of guilty? Not I indeed.

With pride—with selfish terror—with malignity—on benches or in Houses—suppose the “members of the government”—suppose them mad—would it be for me to infect myself with their madness, and concur in giving effect to it? Ah no: rather would I do what depended upon me towards staying the plague, instead of spreading it. Hatred, is it not a contagious passion?—from the harbourer and proclaimer, is it not apt to pass to the object of the hate?

Nay, but (says somebody) you have been too hasty: when you saw what Lord Chief Justice Lord Kenyon said, you should have seen what Mr. Attorney-General said:* “The right of every man to represent what he may conceive to be an abuse or grievance in the government of the country can never be questioned.”

Alas, sir! this may satisfy you, whoever you are, but it cannot satisfy me.

In the first place, it is only an attorney-general that says this. But an attorney-general may say what he pleases, and nothing comes of it. He may say what he pleases, nobody is bound by it; not even he himself. In this or any other way, he may be as liberal as he pleases, and all without expense.

But, in bringing to view this essence of liberality, one drop there is which you have omitted. This drop is a parenthesis: and, by this parenthesis, the effect of the including clause is reduced to—let anybody say what. “If his intention in so doing be honest,” says the qualifying clause—“if his intention in so doing be honest, and the statement made upon fair and open grounds.”

Thus far Mr. Attorney-General. Unfortunately, his (the defendant’s) intention never is honest: the special pleader or other draughtsman takes care it never shall be; he makes it “seditious, malicious,” and everything that is bad; and this is matter of form: these are words of course; and, though they were never true, would of course be taken to be true.

Then as to the fair and open grounds? What are the grounds open to him? Not any matters of fact. To produce anything of this sort, would be to attempt to prove the truth of the libel: which (as hath been seen) is never to be endured.

Oh, but what is this you would have us do? Would you have us destroy the government? Would you leave the government of the country without protection? Its reputation, upon which its power is so perfectly dependent,—would you leave that most valuable of its treasures without protection? Would you leave it in the power of every miscreant to destroy it? In such a state of helplessness, is it in the nature of things that government should anywhere subsist?

Subsist? Oh yes, everywhere; and be all the better for it. Look to the United States. There you see government: do you not? Well: there you see government, and no libel law is there: the existence of the supposed deficiency you shall see: and where libel law is the article, you will see how much better deficiency is than supply.

In answer to a letter of inquiry written by me not long since—the exact time is not material—here follows all that relates to this subject, of a letter written by a person whose competence to give the most authentic, and in every respect trustworthy, information on this subject, is not to be exceeded:—

“Prior to what was commonly called the sedition act, there never was any such thing known under the federal government of the United States (in some of the individual states they have sometimes, I believe, taken place) as a criminal prosecution for a political libel. The sedition act was passed by congress, in July 1798. It expired by its own limitation in March 1801. There were a few prosecutions under it, whilst it was in force. It was, as you have intimated, an unpopular law. The party that passed it went out of power, by a vote of the nation, in March 1801. There has been no prosecution for a political libel, under the authority of the government of the United States, since that period. No law known to the United States would authorize such a prosecution. During the last war, the measures of the government were assailed, by the party in opposition, with the most unbounded and furious licence. No prosecution for libel ever followed. The government trusted to public opinion, and to the spontaneous counteracting publications, from among the people themselves, for the refutation of libels. The general opinion was, that the public arm grew stronger, in the end, by this course.

“I send you a volume of the laws of the United States, containing the sedition act in question. It will be found at page 97, ch. 91. You will observe a departure from the common law, in that it allowed a defendant to avail himself of the truth of the charges contained in the publication.”

Thus much for my authority: whose name I cannot at this instant take upon me to make public.

This same sedition act, pity it is that the necessary limits of the present paper forbid the insertion of it: another occasion may be more favourable. It will then be seen how complete the proof it gives of the needlessness, and thence of the uncompensated mischievousness, not only of our libel law,—imported as it was from the Star-chamber, by a single judge of King James or King Charles’s making, the Lord Coke,—but of every one of the six new laws made by his Most Excellent Majesty that now is, with the advice of his ever faithful Lords and Commons: made, for the defence of everything that is rich and powerful, supported by the whole body of the constituted authorities, and an army of 100,000 men, against the attacks of perhaps as many unarmed men, supported by their wives and children.

Think not that—because if the reputation of an individual were left without protection at the hands of the judges, it would be a defect in the laws,—it would be a like defect, if the reputation of the government—the ideal being, or that of the members of government, the real beings—were left in the same unprotected state.

The individual would, in such a case, be exposed to injustice:—the government, the member of government, in this same case, is not exposed to any injustice. He is not, even under the government of the United States, with its frugal means: much less would he be under the government of this country, with its unbounded means.

Against attacks on reputation, of the whole number of individuals it is but a small proportion that have any tolerably adequate means of defending themselves: money, in no small quantity, is requisite for such defence. In this shape, as well as every other, the means which government has, are absolutely without limit.

An individual—be it ever so completely unjust, it is a chance whether the attack upon his reputation finds him adequately prepared for his defence. Government—the members of government, as such—are, or might be, and ought to be, in a state of constant preparation for defence against every attack to which they stand exposed.

Whatsoever inconvenience, in consequence of any attack made upon his reputation, it happens to an individual to sustain, he remains without compensation for, unless it be at the expense of the defamer. The member of government—no inconvenience, from any such cause, can he sustain, that he is not amply compensated for, and beforehand: he is paid for it, in most instances, in money as well as in power: he is paid for it in all instances in power.

To the individual it may happen, to have no other individual for support in any shape: the member of the government has every other for his support in every shape.

We come now to the word conspire. This word, it will be seen, has been thrown in as a make-weight. Separately or jointly, its two accompaniments—combine and confederate—would not have sufficed. To combine and to confederate is no more than, in the language of the chancery branch of lawyer’s trash, each defendant does with every other, if the draughtsman, by whom it is penned, by authority of the Lord Chancellor, who calls this equity, is to be believed. As to that which they (the present defendants) combined and confederated to do—whether any the slightest shade of guiltiness, legal or moral, be to be found in it, has already been seen. But some other word was to be introduced at any rate: some word, by which, in this case as in any other, a colour of guilt might be laid on a ground of innocence. The word conspire was looked out and added for the purpose. Yet, even with the aid of this word, how is the case of the prosecution mended? In the language of poetry (to whom can it be unknown?) all manner of delightful persons, as well as things, are continually conspiring to produce the most delightful effects: in the language of poetry? yes, and of ornamental, nay even of ordinary, prose. Thus far, then, no great progress is made by the addition. But to conspire (the verb) has, for one of its kindred (its conjugates, as the logician’s phrase is) conspiracy, the substantive: conspiracy, yes: and conspirator to boot. But the sort of combinations, to which the word conspiracy has been wont to be applied, have very commonly been mischievous ones—extensively as well as intensely mischievous ones: conspirators (the actors in these combinations) mischievous, and therefore so far, not only actually, but justly, odious men.

As to the word conspiracy, into the body of the indictment itself, the learning of the learned scribe has not suggested, or at any rate has not produced, the insertion of it. But, in a criminal calendar—at any rate in a court newspaper, or in a placard—it was capable of being made—in fact, it has been made—to serve. At this moment, “Trial of Hunt and others for a conspiracy,” is to be seen in placards. And the men of Cato Street—their name, is it not everywhere the Conspirators?

Now, of all this abuse of words, what was the object? The same as in the instance of those other words of reproach, which have already been brought to view:—the words “malicious, seditious, and ill-disposed;” by exciting and inflaming the passions—the angry passions—in the breasts of jurymen, to lead astray their judgment, and cause them to say, and fancy they see, guiltiness, where nothing is really to be seen but the purest innocence.

In this endeavour, such as it was, no wonder if it was among the expectations of the lawyers for the prosecution, to find themselves seconded and supported by judges.

In the manufacturing of that spurious article, which they have, to so unbounded an extent, succeeded in palming upon the people under the name of law—even common law—among the instruments, which the Westminster-Hall judges, with the law-book-makers, their confederates, have, for so many ages, been employing—have been an assortment of words and phrases, to which, after taking them out of the body of the language, native or foreign, they have, on each occasion, though on every occasion without explanation or warning, attached whatsoever meaning presented itself as being best suited to the professional and official purpose. Great would be the instruction—not small one day perhaps the use—would any intelligent and benevolent hand bring together and lay before the public, with apt comments, the complete assortment of them. Meantime, in addition to the present word conspiracy, take for a sample the word libel; to which may be added contra bonos mores, blasphemy and malice. The more extensive and indeterminate the import attached to the word in the state in which they found it, the better it was found to be for that same purpose: for, the more indeterminate its import, the less the risk they ran of seeing, on the part of juries, discernment and firmness sufficient to detect and frustrate any such misapplication as the purpose required should be made of it.

Now, in regard to the word conspiracy.

From a slight sketch of the history of the law on this subject, no small instruction may be derived. Along with the perfect groundlessness of the accusation, in this, not to speak of so many other indictments preferred in pursuance of the same system, may be seen, as a corollary, a specimen of the manner in which the business of legislation has, at all times, and to so vast an extent, been carried on, and the formalities of parliamentary procedure thus far saved, by a few nominees of the crown, acting in the character of judges.

In its original physical sense, to conspire (a word of Latin origin) meant to breathe together. In the original psychological sense, it meant to co-operate, more particularly in the way of discourse, towards any purpose whatsoever, good, bad, or indifferent: these were its original senses.

But from, or along with, the verb to conspire, came the substantive, conspiracy: and, from the earliest times, though the sense of the verb still continues to be unrestricted by any limitation on either side, the substantive, for anything that appears, has never been employed in any other than that narrower sense which is termed a bad sense: in this bad sense it means co-operating, more particularly in the way of discourse, to a supposed mischievous, or on any other account forbidden, or disapproved of, purpose.

For the designation of a particular act, or mode of conduct, for the purpose of its being dealt with as a crime—the earliest use made of this word may be seen plainly enough in the law books. The species of act is that which may be termed juridical vexation: the applying to the purpose of injustice, those powers, which, in profession at least, are never given with any other intent than that they should be employed in the furtherance of justice.

Now mind the misapplication, the confusion, and the unbounded power exercised under favour of it. In regard to any act that has been dealt with as criminal, the species of the act is one thing; the number of the persons co-operating in the performance of it, is another and widely different thing. Manifestly, not to any one species of act exclusively, but to every species of act whatsoever, is the circumstance of number, in this way, applicable. From this circumstance, to deduce a denomination applied exclusively to the designation of one particular sort of act, accompanied with an intimation of its having been, or being about to be, dealt with as an offence, was surely a course as ill adapted as can well be conceived, to the ends of language. What can be more inconsistent with clear conception—what can be more amply productive of confusion—than the manufacturing a name for a particular species of offence, out of a circumstance equally apt to have place in every species of offence?

Be this as it may, the species of offence which has been mentioned, namely, juridical vexation, is the species of offence to the designation of which the word conspiracy was applied in the first instance. This was as early as the reign of Edward the First.

Of this mode of working vexation and injury—of this, or something scarcely distinguishable from it—cognizance, in the way of penal prohibition, may be seen taken by statute law, as long ago as the reign of that same monarch: year of his reign 33; year of our Lord 1304.* Thus it is, that of the vast fabric which, under the name of conspiracy, may be seen reared by judges, the first stone, though no more than the first stone, was laid by the legislature.

Of a prosecution for this cause at common law, an example occurs as early as the reign of Henry VII.†

From that time, down to the early part of the present reign, thinly scattered in a space of nearer to five than four centuries, reckoning from the time of the above statute, are to be seen, at the rate of not so many as one to a century, instances of the application made of this word to the creation of new crimes; of crimes having nothing in common, either with the one first created, or with each other, except this same accidental and so completely uncharacteristic circumstance.

It was by Lord Mansfield that the example was set of giving to this word such an extension as should render it applicable to the purpose of affording a ground for the inflicting of punishment, on the score of any act, the contemplation of which should have produced, in the mind of the judge, a desire to cause punishment to fall upon the heads of the persons concerned in it.

When exercised by a man’s sole authority, without any other man either to say nay to the whole, or to narrow the extent of it by limitations and exceptions,—legislation is at once a quick and pleasant work. First to move to bring in a bill; then, if leave be given, to bring it in, and then defend it, not only against rejection, but against amendment,—defend it in person, in one House, and by proxy, if procurable, in another,—is a tedious process. Of the inconvenience of the latter mode, no judge, especially if to a seat on Bench, he adds a seat in House, fails of being sufficiently sensible; no man was ever more acutely and efficiently sensible than Lord Mansfield. Occasion happening to present itself, he passed in this common-law form, a dictum having the force and virtue of an act of parliament, creating an entire new species of conspiracy, consisting in the act of selling unwholesome provisions: meaning, doubtless, as and for wholesome ones. But, to the only sort of wrong-doing act, the punishment of which had, under the denomination of conspiracy, had the warrant of the legislature, it bore no more resemblance (as anybody may see) than the most dissimilar act that could be named.

Following the example of his illustrious predecessor, it was but as it were the other day, that Lord Ellenborough, in the course of his reign, passed another act of common law, erecting the offence of endeavouring to raise or lower the price of government annuities by means of false reports, into another species of conspiracy.

What is plainly useful and perfectly proper, is—that the doing injury to the health of individuals, known or unknown, by means of unwholesome provisions, if sold as wholesome, should be made punishable. What is no less so, is—that the obtaining, or seeking to obtain, a profit, by causing the price current of property in the shape of government annuities, or in any other shape, to rise or fall, by means of false reports spread for the purpose, should be made punishable. It is one means of obtaining, or seeking to obtain, money by false pretences: a species of fraud, the proper name of which is not unknown, having long been employed in statute law.

But, so long as the people have the effectual filling of a seat in parliament, though it were but a single seat, it is very far from useful or proper, that by a nominally independent, but in reality ever-aspiring and ever-dependent creature of the crown, who, by his obsequiousness to high-seated will, on a small scale at the bar, has been exalted and engaged to practise obsequiousness to that same will on a vast scale on a bench—that by any man so situated, the conjunct power of King, Lords, and Commons, should be exercised, is very far from being either useful or proper, even though it were to the best of all imaginable purposes; for, it is by applying it thus to good purposes, that, in those situations, men acquire that power, which, as surely it has been made their interest, it has been their practice, to apply to the very worst of purposes.

Thus plainly untenable, on every ground of law as well as reason, is the attempt made, in the present instance, to fix upon the defendants the charge of conspiracy, in the character of a legally punishable crime. Not equally so would be an indictment, if preferred against the several persons concerned in the institution and prosecution of the present indictment.

Setting aside the very few innovations above mentioned, and those so many palpable aberrations, there would remain,—for the original and sole common-law offence, acknowledged as such, in a series of cases covering a space of several centuries,—the offence of juridical vexation; and that common-law offence having, as hath been seen, its warrant in statute law—there would remain, I say, this offence, coupled with the circumstance, that persons more than one have been concerned in the infliction of it. In addition to the vexation, or though it were but the intention to produce it, to invest the offence in the most unexceptionable manner, with the appellation of a conspiracy, requires nothing more than this—namely, that the prosecution was groundless; or at the utmost nothing more than, on the part of the offenders, the consciousness of its being groundless: for, upon the face of the book, nothing more than the mere groundlessness appears to have been uniformly required; not even the consciousness.

In the present instance, who, on this supposition, would be the conspirators? To know exactly what the course is, which, in this respect, the business has taken, has not fallen within my competence. But, for the title conferred by this word, the following persons present themselves as candidates:—1. The learned counsel employed as counsel for the crown on the trial; 2. The solicitor of the treasury, or any other person employed as attorney in the prosecution; 3. The special pleader, or other learned penman by whom the indictment was drawn up; 4. His Majesty’s attorney-general, and his Majesty’s solicitor-general, if it is by or with the advice of those great functionaries that the prosecution has been instituted and carried on; 5. The lords commissioners of his Majesty’s treasury, if it was by their order that the prosecution was instituted; 6. The members of that select body of his Majesty’s privy council, which is distinguished by the name of the cabinet council, if it was with them that the business originated, or if it be through them that it has passed.

But this indictment is but one out of a number of indictments, all of them results of so many sets of acts, performed in execution of the same general design: treating, on the footing of a punishable offence, every endeavour which, by persons acting elsewhere than in parliament, shall have been made, towards the obtaining of any change in the representation of the people in parliament: construing every such endeavour into a crime, and thus, in case of any imperfection in the mode of that representation, rendering that imperfection for ever remediless: in case of any system of oppression or depredation, or other national grievance, growing as a necessary effect out of such imperfections, rendering all redress of any such grievance for ever hopeless.

Oh, but our oaths! our oaths! Perish liberty! perish the country! We must not, we will not, violate our oaths!

Well then, my fellow-countrymen, if such be your determination, on no account to violate your oaths, I desire nothing better. This leads me to the circumstances, which, if in the present charge there were matter ever so plainly criminal—and ever so much of it, and all of it proved—would, in this case (not to speak of other cases) suffice to render it impossible for a jury, consistently with their oaths, to concur in a verdict of guilty.

Of whatsoever there will be to say in proof of this position, the ground is constituted by this uncontrovertible assumption:—namely, that it is not consistent with their oaths, for a jury to declare their belief of anything which, in their eyes, has not been sufficiently proved by the evidence that has been before them: still less their belief in the truth of any position, of the falsity of which they have no doubt: and therefore, if so it be, that, whenever, to constitute an offence as described in the indictment, the concurrence of every one of a number of circumstances therein stated is required—then, and in that case, if, of the whole number of these circumstances, there be any one which either had manifestly no existence, or (what comes to the same thing) has not been proved to have been in existence, no defendant can, consistently with the juryman’s oath, be pronounced guilty, with relation to that same offence. The circumstance thus left unproved—be it ever so plainly irrelevant, or even ever so ridiculous, its being so makes not, in this respect, any difference. The accusation on which the jury have to pronounce, is that which it is, and not anything which it might have been, and is not.

On another occasion I may perhaps give more latitude as well as more particularity to this discussion. On the present occasion, what is said on this subject, must of necessity be as compressed as possible.

On the present occasion—to prove, on the ground now stated, the impossibility of a verdict of guilty, without a violation of the juryman’s oath—all that remains is—to point out, in each of the nine counts in question,—among the circumstances, of all which, in the description of the alleged crime the existence is alleged,—one or more, of which it will be plain, either that they had no existence, or that they have not been proved.

Among all these counts, should there be any one that shall be found altogether clear of these, as well as all other, unproved allegations,—then, if the verdict be taken upon that one count, the other eight, I am ready to acknowledge, may every one of them be stuffed with the like excrementitious matter in any quantity, yet from that quantity no valid objection to a verdict of guilty can be made.

The copy, or rather extract, which I have succeeded in obtaining, does not furnish me with the means of speaking, with that entire assurance which is afforded by actual inspection of the whole tenor, in relation to any of the nine besides the first. But, in several of these instances, the unbroken thread of the legal custom in this respect, affords an assurance altogether sufficient for the purpose.

At any rate, when a list of these unproved allegations has been seen, as it here will be seen, as contained in the first count, no person, whom it may concern, can find any difficulty in applying the same list to the several other counts.

Here then follows, as taken from the first count, a list, or at any rate what will be found an abundantly sufficient sample, of these unproved allegations, any one of which will have the effect of rendering a verdict of guilty a violation of oath on the part of every juryman who has been concerned in it:—

1. “Being malicious, seditious, and ill-disposed persons.” Whether to the persons by whom,—without either proof, or design to offer proof,—dispositions, and if dispositions, habits, and if habits, acts, thus designated, are imputed to others,—whether to these persons the imputations would not apply, with more justice than to those to whom they are thus applied, let any honest man—let any sincere lover of truth, justice, sincerity—declare.

2. “Maliciously devising, and intending to raise and excite discontent,” and so forth.

3. “With force and arms.” . . . .

4. “In contempt of our said Lord, the King.” . . . .

5. “Against the peace of our said Lord the King” . . . .

Of these allegations, the two last will, it is expected, be found to have been inserted in each one of the eight other counts: if so, then are they, each of them, sufficiently infected with unproved matter, in such sort as to give to the verdict of guilty, if pronounced in relation to that one of them, the illegal and immoral quality so often mentioned.

This eventual violation of oath being supposed, let those say whom it may concern—let any juryman say to himself, let the learned judge say to them all for himself—whether, should it, even from the very commencement of the institution of jury-trial, be seen to have been the practice of jurymen thus to defile themselves—should it have been the unvaried practice of the judge thus to connive at their defiling themselves, or even to recommend it to them so to defile themselves—whether, even in this case, any member of the present, or any future jury, that sees this, will, in any such habit of defilement, howsoever inveterate, find any sufficient warrant for so defiling himself.

Yes, for argument sake, if, of his so defiling himself, any preponderant advantage to the community, in respect of judicature and substantial justice, would be the result. But, if in any shape any such advantage were to be found to result, it would lie on the defender of the defilement, be he who he may, to bring it to view. Now this is what has never yet been so much as attempted to be done; and it seems to me that I risk little, in venturing to assure the reader, that it never will be attempted to be done. On that side, if anything be advanced, it will be in the strain of vague generality, and in the form of one or other of those fallacies, of which I have been at the pains of forming a catalogue, which I hope will erelong be published in English, as, in the greater part of it, it has for some time been in French.*

In a certain number of instances, let but the jurymen of this country shew the determination to refuse thus to defile themselves,—not any the smallest difficulty will attend the giving to all instruments of accusation (not to speak of other legal instruments) that shape, which will render it, not only perfectly easy to juries, to declare guilt to have had place, wherever in their opinion it has had place,—to render it perfectly easy (I say) for them so to do, without any such defilement,—but shall even render it much more easy, than it either has been made already by that same defilement, or would or could be made by the like defilement, if swollen to a pitch, ever so much more enormous than it has ever yet been seen to be.

THE KING AGAINST SIR CHARLES WOLSELEY, BARONET,

AND JOSEPH HARRISON, SCHOOLMASTER, SET DOWN FOR TRIAL, AT CHESTER, ON THE 4^th OF APRIL 1820.

BRIEF REMARKS, tending to show THE UNTENABILITY OF THIS INDICTMENT.

BY JEREMY BENTHAM, ESQ.

BENCHER OF LINCOLN’S INN.

To the Jurymen of Warwickshire, and such other persons whom it may concern.

Queen’s-Square Place, Westminster
March 29, 1820.

For the purpose of the cause, intituled, the King against Edmonds and others, of which it is expected that, before this can reach you, it will have been tried at Warwick, copies were sent of the paper which immediately follows [precedes] the present address. Not only in principle, but in so large a proportion of the details, the two cases are in so many points coincident, that, for the present purpose, to draw up a paper, distinct in all its parts from that other, would have been labour without adequate use.

On this present occasion, I proceed, therefore, on the supposition that, by what persons soever any remark of mine, on the subject of the indictment in the case of the King against Wolseley, may be regarded as presenting any claim to their notice, the following [preceding] remarks, which had, for their more immediate object, the Warwick case above mentioned, will, in the first place, have been perused. This being supposed to be done, all that will remain will be to subjoin such remarks as apply exclusively to those words and phrases, which have no place but in the Chester indictment, by a copy of which they will be preceded.

THE KING v. WOLSELEY & HARRISON.

“MISDEMEANOR.

‘COPY OF THE BILL OF INDICTMENT AGAINST SIR CHARLES WOLSELEY AND MR HARRISON.*

“Cheshire.—The jurors of our Lord the King upon their oath present, that Sir C. Wolseley, late of Stockport, in the “city” [county] of Chester, Bart., and J. Harrison, late of the same place, schoolmaster, being persons of a turbulent [1] and seditious [2] disposition, and wickedly and maliciously [3] devising, and intending to excite tumult [4] and insurrection [5], both in this realm, on the 28th day of June, in the 59th year of the reign of George III. of the United Kingdoms of Great Britain and Ireland, King, at Stockport aforesaid, in the said county, together with divers other persons to the jurors aforesaid unknown, to the number of 500 and upwards, with force and arms [6], unlawfully did assemble and gather together to disturb the public peace [7], and being so assembled together, did, by seditious speeches and discourses [8], and by other unlawful and dishonest means, then and there endeavour to “invite” [incite] and stir up the people of this realm to hatred and contempt of the government and constitution thereof, as by law established, in contempt of our said Lord the King and his laws, to the evil example of all others in the like case offending, and against the peace of our said Lord the King, his crown and dignity.

“And the jurors aforesaid, upon their oath aforesaid, do further present, that the said C. W. and J. H., together with divers other persons to the jurors aforesaid unknown, on the same day and year aforesaid, at Stockport aforesaid, in the said county, with force of arms unlawfully did conspire [9], combine, confederate, and agree together to disturb the public peace of this kingdom, and to incite and stir up the people to hatred and contempt of the government and constitution thereof, as by law established, in contempt of our said Lord the King and his laws, to the evil example of all others in the like case offending, and against the peace of our said Lord the King, his crown and dignity.

“Lloyd, Prosecutor. John Hobnis.

“Thomas Robinson, High Constable.

“A true copy of an indictment, preferred and found against Sir C. W. Bart., and Joseph Harrison, schoolmaster, at the quarter-sessions holden for the county of Chester, at Knutsford, on Tuesday, the 13th day of July 1819.

“Henry Notts, Clerk of the Peace.”

REMARKS ON THE ABOVE INDICTMENT.

Taking, for their subject, divers words and phrases in the above indictment, these Remarks have, for their principal object, the shewing that, on either of the two counts in that indictment, concurrence in a verdict of guilty would be a violation of the juryman’s oath.

1. “Being persons of a turbulent . . . . disposition.”] That the pronouncing anything on the disposition of the persons in question, whatsoever were the disposition so ascribed, would, as to so much, be the pronouncing a verdict without evidence, has been shown in the Remarks in the Warwick case (p. 250.)

On the present occasion, to the ungrounded assertion respecting disposition in general, is added, in the first place, the assertion, by which the quality of “turbulence” is ascribed to the disposition of the persons thus accused. Here then the jury are called upon to pronounce, that the disposition of the persons accused is, in the instance of each of them, a turbulent one. But to do so will be to pronounce them in that respect guilty, and that without evidence. By the word turbulence, no distinctly conceivable act is indicated. On the present occasion, if there be anything, of which any distinct indication is afforded by this word, it is the sort of temper, and the state of mind, which, on the part of the persons concerned in the prosecution, has place, or is pretended to have place. To whomsoever applied, it is a word of vague vituperation, and nothing more.

2. “And seditious disposition.”] Of the word disposition, enough has just been seen. Seditious disposition is a disposition to commit acts of sedition. By the phrase acts of sedition, what are the sorts of acts that are, or those that ought to be, understood to be designated?

Presently we shall see this same adjective or epithet, seditious, employed to designate certain “speeches and discourses.” But the first thing to be considered is the act at large. Sedition? an act of sedition? what sort of an act is it? For, of the phrase—the act of speaking a seditious speech, and of the phrase—the act of publishing a seditious written discourse, the import will depend on that which is attached to the phrase—an act of sedition taken at large. Be this as it may, the idea attached to the word sedition being no less obscure and indeterminate, than it is practically important, the consideration of it is here deferred, to the occasion on which it will be seen presenting itself anew, in company with the words speech and discourse.

3. “Wickedly and maliciously.”] Two other words these, which, as here employed, amount to nothing better than another sample of vague and ungrounded vituperation. To these again the remark may therefore be applied, namely, that the imputations conveyed by them not being susceptible of proof, the consequence is, that, supposing a verdict of guilty applied to the count of which they form a part, here would be another violation of the juryman’s oath.

Here, too, would recur the question—if, on the ground of the ungroundedly abusive language, any person ought to suffer,—on whom, with most propriety, would the suffering be made to fall?—on the persons who are the objects of it, or on the persons who concur in the utterance of it?

But, “The King” (says the current maxim) “can do no wrong.” No, say the crown-law-yers, “nor the crown-lawyers neither:” if not in words, at any rate to every practical effect, such is the addition made to it: what would be wrong and criminal, if done by any other person, is, wherever they do it, right and legal: right, though it be for no other reason, than that it is by them that it is done.

4. “Devising and intending to excite tumult.”] Tumult, forsooth! Behold here another word without any determinate meaning. What is the criminal intention imputed here? Answer—the intention of exciting tumult. Now what is tumult? This is surely among the things which every man ought to be informed of, and informed of in time, before he is punished for any such cause as the “exciting” it, or the endeavouring or “intending” to excite it. If, for the purpose of forming a ground for punishment, there be any word—any name of an act—that requires to have the import of it fixed by an authoritative definition, surely this one is of the number. But any such definition, where is it to be found? Absolutely nowhere. The law knows not of any such word: neither statute law (the only real sort of law,) nor the sort of sham law, commonly called common law: in no statute, in no law report, or authoritative law treatise, is any such definition to be found.

No, (says somebody,) nor need there be: for tumult is a word belonging to the common stock of the language. Well: and, when employed as an article of that common stock, what then is the import attached to it? Nothing can be more indeterminate. On the slightest scrutiny, this indeterminateness will appear unquestionable: and, to warrant the application of a word to a legal purpose, it suffices not that the word be familiar: the idea attached to it should moreover be determinate.

If there be any idea constantly associated with it, it is this—namely, the idea of a something generally unpleasant and undesirable: that something being a noise, in the making of which, a number of persons greater than one are instrumental.

Noise—in the composition of the idea attached to the word tumult—noise, then, one might venture to state as an essential and indispensable ingredient.

Motion—violent motion—of other bodies besides air—motion on the part of a number of persons:—and what number? Would this be another ingredient?

But suppose both ingredients to have had place,—both the ingredients thus designated—would they both together suffice to constitute a punishable offence? No intimation, to any such effect, having as yet been given by any authority, would the ideas thus associated suffice to constitute, for the purpose of punishment, the complex idea of an offence?

In addition to the above ingredients, injury to man’s person—injury to any subject-matter of man’s property—immoveable or moveable—injury of either of these descriptions, and in either case injury in any shape, might suffice (it is supposed)—might suffice to constitute such an offence—so that the effect thus given to it were but sufficiently known. But in regard to injury to person, still comes the question—would a single person suffice? or shall any and what greater number be requisite? In this case, shall tumult be regarded as distinguished—(and by what circumstance or circumstances distinguished?)—from common assault?

Whatsoever be their subject-matter and their shapes, the injuries commonly regarded as included in the import of the word tumult can scarcely be regarded as of a very serious complexion. That which in this indictment, is brought to view in the character of a punishable crime, is, in the most illustrious periodical publication that ever appeared in any country, considered as to such a degree beneficial, not to say necessary, to good government, that the author of the article in question, the avowed adversary of radical reform, scruples not to employ his endeavours to the avowed purpose of preventing the exclusion of it. “Were the causes of tumult destroyed,” says the Edinburgh Review, No. 61, p. 198, “elections would no longer be nurseries of political zeal, and instruments for rousing national spirit. The friends of liberty ought rather to view the turbulence of the people with indulgence and pardon, powerfully tending to exercise and invigorate their public spirit. It is not to be extinguished, but to be rendered safe by countervailing institutions.” Not that, in regard to the utility of tumult in any sense of the word, I can bring my own conceptions to anything like a comcidence with the ingenious reviewers.

In addition to the word tumult, may be seen included in this same justification the word turbulence—another of the words in which the science of the drawer of the indictment has beheld the matter of a punishable crime.

5. Intending to excite . . . . insurrection.] Much more serious is the charge now; but still indeterminate,—on the current, and but too well justified supposition, that by the jury, under the direction of the judge, assertion, not only unproved but ungrounded, will, in this as well as so many other instances, be in a way to be regarded as proved,—most conveniently indeterminate.

Insurrection, then? What, on this occasion, for the purpose of their verdict, are the jury—what, for the purpose of their defence, are the defendants—to understand to be meant by it.

“Insurrection” is rising up. Rising up? for what purpose? If against any person or persons, against whom? At any rate, in what consists the crime? In the act of rising up, there is not any crime; in the act of rising up against this or that person, there is not necessarily any crime: for example, not when it is but in self-defence against unlawful aggression. Rising up against the government? against the government, for any such purpose as putting down the government? Nothing of all this is said: nothing of all this is charged.

And how happens it that nothing of this is charged? The government—was it, on this occasion, out of the penman’s thoughts? No such thing; for presently, when hatred and contempt are the affections, the excitement of which is alleged to have been intended, government is expressly stated as being the object of them. Why then is it that, when the horrible word insurrection is thus brought forward, it is thus hung up over the heads of the defendants—hung up, as it were, in the air, and without any determinate meaning attached to it? Why, unless because somebody was conscious, that neither in that nor in any other criminal sense of the word was insurrection intended; nor, therefore, was any intention of producing any such criminal effect capable of being proved. In the insertion of this word, what then was the purpose in view? Once more, only, by influencing the passions, to mislead the judgment of the jury, and cause them to concur in a verdict of guilty, against two men in whose instance no guilt had place. See what is said a little lower down on the subject of seditious speeches.

Now then, no such intention, as that of rising up against government, for the purpose of putting down the government, or for any other and minor purpose—no such intention (suppose) is proved; at the same time, this being numbered among the other words of course—the assertion contained in it being numbered among the assertions, which, though not less plainly false than scandalous, it is customary, because it has been customary, for the jury on their oaths, under the eye of the judge acting under his oaths, to declare to be true—suppose it accordingly, in and by the verdict, declared to be true. What is the consequence? That, when the defendants come up for judgment, the judge fancies, or pretends to feel himself in his speech, and in his sentence, not only authorized, but compelled to consider the defendants as insurgents—as everything but traitors. Not exactly as traitors: neither the word traitorously, nor any of its kin, being in the verdict: but nevertheless as next kin to traitors. For now comes in to his aid the sense in which the word with its kindred are so continually employed in the body of the law—employed, not only in all histories, but in all newspapers. The citizens of the United States, ere they became acknowledged citizens—were they not insurgents, and insurgent traitors? So likewise the men in Spanish America? In Spain and everywhere else on the continent, insurgent traitors; in England, insurgents everywhere, and, in the court newspapers, insurgent traitors.

6. With force and arms.] Nothing can here be plainer than the existence of an allegation, that, in the course of the acts done in prosecution of the criminal intentions alleged and for the purpose of giving effect to those same intentions, force and arms—not only force but arms—were employed. Well then, if on that same occasion, neither force nor arms are proved to have been employed,—or even, though force were proved to have been employed, if no arms are proved to have been employed, no verdict in and by which they are declared to have been employed can be concurred in without a violation of the juryman’s oath. So likewise, though arms were proved to have been borne, if no force is proved to have been employed.

Now as to arms, what, in the sense that belongs to the subject, arms are—is pretty well understood by everybody. Arms are either offensive or defensive: and, in either case, to help to constitute the alleged guilt, they must not merely be such arms as are customarily carried for the purpose of being eventually employed against assault by beasts, but such arms as by their construction appear designed to be employed against men.

7. To disturb the public peace] “unlawfully” and “to disturb the public peace:” it was to this intent that they “did assemble and gather together,” says this part of the charge.

Disturb the public peace? Once more, if not by injury, or endeavour to do injury, to person or property, by persons acting together for this same purpose, in considerable numbers, the public peace was endeavoured or intended to be disturbed, by what other means—in what other mode, could it have been endeavoured or intended to be disturbed; or in this case, to the words, disturb the public peace, what other determinate and intelligible import is left? If, then, neither injury, nor endeavour nor intention to do injury, in either of those modes, is proved, here there is another ungrounded assertion by the adoption of which the juryman’s oath would be violated. But, even suppose injury in both modes proved, still would a verdict of not guilty be warranted, though it were upon this single ground. Why? Even because, for want of those same determinate expressions, or what is equivalent to them, the defendants have been deprived of that precise information, which was necessary to furnish them, in case of innocence, with the sufficient means of defence against this part of the charge. Disturbance of the public peace is not plain language, but rhetoric—rhetoric, which, for the purposes of deception and injustice, has been, as it was originally inserted, so is it still kept, in the body of the language employed by lawyers.

Eminently useful has indeed the word peace been, to those who, in that course of perpetual encroachment, which limited power, in whatever hands, is destined to pursue, are waging their never-ceasing war against liberty.

Though, in its original import, this word was far from being so determinate as those which the subject required, and, as above, might have found,—it was still farther from including one important point which in these later times has been forced into it.

In its original and proper signification, it belonged to international law only, not to internal law. Peace is the absence of war; and, if it be applicable to injury between members of the same state, it could only be on the supposition of a civil war, such as that between two pretenders to the monarchy, or that between a monarch and his aristocratical subordinates: of that sort of civil war from which, in those feudal times, in which most of our institutions took their rise, the country was seldom free, except when relieved from it by a war of depredation, in which all parties joined, for the sake of the plunder hoped to be obtained from France.*

Injury to person, to properties, to reputation, to condition in life,—to one or other of the four shapes expressed by these denominations, may all injury, considered in so far as individuals are the objects of it, be seen to be reducible. That which, as between monarch and monarch, would be signified by the words breach of the peace—that, and nothing else, would be signified by that same phrase, when applied to injury as from individual to individual in the same state, or from subjects to rulers in the same state: that is to say, injury to person or property, when accompanied with physical force,—or with the appearance of it, in any such shape as should produce fear of ulterior injury, in one or both of the shapes thus signified.

In either of these cases, a measure obviously conducive, and in some circumstances even necessary, to prevention of ulterior injury, is the bodily arrestation of the evil-doer, and, for a time, more or less considerable, the subjecting him to ulterior bodily restraint. Were it not for a power to this effect somewhere, no one could say, to what extent injury, in the two shapes here in question, might not swell itself.

As between monarch and monarch, so between individual and individual, it is only by injury to the persons or properties of men, not by mere injury to their reputation or condition in life, that except of late, and in prosecution of the above-mentioned implacable internal war of the ruling few against the subject many, that peace has ever been considered as being broken or disturbed.

With or without commission from the king of Great Britain, suppose a Spanish captured by a British ship, and men in the ship killed or wounded: here is disturbance of the peace, here is breach of the peace. Thus stands the matter, so far as regards injury to person and injury to property. Now as to injury to reputation. At this time, scarcely does that day pass, in which the reputation of the Spanish monarch does not receive its figurative wounds by the instrumentality of the public prints; yet by none of those figurative wounds is peace between Spain and England either broken or disturbed.

Still, in the import of the word peace, there was nevertheless something of a loose and figurative cast, which, by the enemies of the liberty of the press, was regarded as affording a colour applicable to their purpose.

Already, to every written and published discourse, which it was their wish to suppress or punish for, they had succeeded in affixing the character of a criminal and punishable libel; and, on the part of the people, they had found either a stock of prejudice, or a degree of blindness and negligence, sufficient to produce submission to the injury. But, to punish a man for an alleged libel, and thereupon to suppress it, after it had been proved or pretended to have been proved such, was one thing: under the notice of his having published a libel, to punish a man for the publication of a written discourse, and to suppress the discourse, before it had been proved, or so much as pretended to have been proved, a libel, was another and a very different thing. This, however, they have been seen to do; and, in the word peace, with the cloud in which it still continues so unhappily involved, they found a pretext, such as by them was deemed, and as yet has been found, a sufficient one.

Still, however, the phrases, disturbance of the peace—breach of the peace, were not of themselves regarded as sufficient: the idea of tendency was still requisite; to the phrase, “a breach of the peace,” the words, tending to, were added, and thus the thing was done.

Tend to a breach of the peace? In what manner, by what means, is it, that a libel, of the sort here in question—a libel, tending to incite and point against the person or persons in question sentiments of displeasure, tends to a breach of the peace? Upon these or any other persons, such, it is true, may be the effect of injury in this shape, just as it may be the effect of injury in any other shape. For, there is no injury by which a man, weak in mind and strong in body, may not be engaged to make retribution for it, by means of injury, in some shape or other, of the sort of those by which peace, in the original, determinate, and proper import of the word, is broken or disturbed.

But, let this be law, every act, by which any man may be made angry, is a breach of the peace: and thus, between acts which are breaches of the peace, and acts, injurious or not, that are not breaches of the peace, all difference is expunged.

Thus, then, so it is, that, let the law be but uniformly carried into effect, all liberty of discussion on the subject of those affairs which are the common concerns of all men, is rooted out—all by so sweet and soft an instrument as the word peace, issuing from the lips of the reverend, and scarcely the less pious for the not having as yet been supernaturally consecrated, ministers of peace.

A man defiles your wife before your face. This, if it be with the consent of the person so defiled—this, though is suffices to acquit you of murder, in case of your avenging the injury by the death of the injurer upon the spot, has not yet been discovered, either to be a breach of the peace, or to have any tendency to produce to any such effect as that in question—to any such effect as that of arrestation on the spot, and at the time, any such thing as a breach of the peace. The reason is plain: here is no libel published. Not but that it is among those injuries, which “by intendment of law”—meaning always English law—are never committed without “force and arms.” But, in this case, the force and the arms being but the product of mendacity and nonsense under the garb of science, neither breach of the peace, nor so much as tendency to any breach of the peace, is among the imputed accompaniments of it.

Thus it is, that, with words at command, the nominally independent, but really dependent, creatures of the crown, continue to have, as they always have had, but for here and there an act of perversity on the part of juries, at equally absolute command, the life of man, as well as everything from which life derives its value: and, so it be by a man with justice in his mouth, and a certain quantity of fur and false hair flowing over his shoulders, how they are dealt with has, to the good people of this country, been, at all times, a matter of little less than complete indifference.

8. By seditious speeches and discourses.] Now, then, as to sedition. In this clause, by which the jury are called upon to pronounce the defendants guilty of an alleged crime thus denominated, ought to be considered as of course included, the supposition that to every one in their situation it had been rendered possible to know and understand—to know and understand in time—what the sort of acts are, to which the appellation is applied, and from which, if committed, the penal consequences attached to it will be made to fall upon the actors.

But, in this instance, as in so many others, no such possibility, it will be seen, has place.

In this instance, as in every other, what the possessors of power have in view and at heart, is—under the name of punishment, to cause suffering to fall upon any such persons, to whom it shall have happened to have offered opposition in any shape to their will—determined, as it is, by the conception entertained by them of their own interest.

Now, by the word sedition, what is it then that is expressed? Opposition, in some shape or other, to that will: this, and little more, if anything: at any rate, nothing, the shape of which can be said to approach in any degree to a determinate shape.

Look for the meaning of it in statute law: look for it in common law: look for it as long as you will in both, you will look in vain.

As to the word sedition, in statute law it may unquestionably be found in places more than one. But, in each place, for the import that will be attached to it, reliance is placed on the import, whatsoever it may be, which by each reader shall happen to be attached to it. Unfortunately, various as well as numerous are the imports which, with almost equal pretension to propriety, may present themselves as attached to it; imports correspondent to which are so many species of mischievous acts, differing widely from one another in quality and quantity of mischievousness. A sample may, perhaps, be brought to view before these pages are at an end.

Now, of the immense and undigested mass of statute law, in what portion will any exposition—any attempt to give an explanation and fixation—of the import of this important word be found? In the instance of this, as well as almost every other denomination of offence, nowhere. In the manufacturing of this species of law, no man ever scruples to assume, and to any extent, those things to be universally known and understood by everybody, the possibility of knowing and understanding which has not been allowed to anybody. To the manufacturers, the very idea of definition is an object of a not altogether ill-grounded horror—of real horror—and therefore, to escape from the indignation due to such neglect of duty, of affected contempt:—absurd, pedantic, wild, visionary, and impracticable—such are the epithets kept in store to be poured down upon the head of every presumptuous innovator, whose audacity shall dare to propose the extending, to this most important of all sciences, that instrument of elucidation, which is never regarded as being misapplied, when applied to the most trivial, be they what they may, of the several other branches of art and science.

Lastly, as to common, alias judge-made law. Not that the definitions, which occur here and there, in the books called books of common law, are, any of them, possessed of any binding force, or authority: to each such exposition, whether repeated as having been given by a judge speaking as such, or exhibited by an unofficial and uncommissioned treatise-maker, each succeeding judge, on each occasion, bestows such regard, and no other, as it happens to him to find his convenience in bestowing: for nothing can he ever see, that, if so determined, can have any such effect as that of restraining him from the freest exercise of such his pleasure. Still, however, in such expositions, definitions, exemplifications, and illustrations, as are to be found in law-books, a man who is rich enough to possess a law library of adequate magnitude, and at the same time has leisure enough to make this use of it, may, in most cases, find some guide to reflection—some help to conjecture.

Accordingly, in books of common law, words may here and there be found, which have been taken for the subject of declared definition. Examples are—the words, high treason, riot, rout, and unlawful assembly: not to speak of others which have no immediate bearing upon the present subject.

But, in the number of them, the word sedition is not to be found. On the present occasion, besides indexes to statute books, Hawkins, the latest of the authors of crown law-books, who can with any confidence be cited as authority, has on this occasion been recurred to, and in vain.

Such is the case with regard to the word sedition: such is moreover the case with the still more appalling word insurrection.

Between sedition and high treason—between a crime punishable with nothing beyond fine and imprisonment, and a crime subjecting men to an excruciating death, with et-ceteras, punishing with elaborate reflection the unnumbered innocent along with the guilty one—where is the difference? Nobody has ever told us: nobody has ever attempted to tell us: nobody is there who is able to tell us. For one and the same individual act or series of acts, for which a man is prosecuted [Editor: illegible word] for high treason, if the cognizance of it is thought fit to be trusted to a jury, and of the evidence of two witnesses, or a body of other evidence construed to be equivalent to it, can be found,—for the same offence, he has been made prosecutable, and accordingly prosecuted, as for sedition, and, by a single justice of peace, convictable and convicted on the testimony of a single witness (36 G. III. c. 7.)

But between these, as compared with one another, and as compared with such other offences as strike against the authority of the government, is it possible to draw any clear lines of distinction? Oh yes; abundantly possible. Actuality, it is hoped, may be received as tolerably satisfactory evidence of possibility: and this evidence would here be produced, were it not that space and time press, and that, on the present occasion, any such sample might, by those whom it concerns, be regarded as uncalled for and irrelevant.

Look at that statute. Every act, in the nature of which any real mischievousness is included, is expressly declared to be high treason;—every act, which is allowed to be punished with the less atrocious punishment, as above, is the act of criticising, in terms displeasing to the members of government, anything that, at any time, has ever been done by government. And, forasmuch as, in the preamble, in company with the words high treason, the word sedition is inserted, what is said about “hatred and contempt,” as above, i. e. about unacceptable criticism, may, by any one that chooses be taken as a definition of it. To convict a man even of high treason on as good ground, would not require a construction more intensely strained, than some of those by which, in addition to the treasons created by parliament, new ones have been created by judges.

Mr. Hunt, and his associates—on a late occasion, were not endeavours used to send the knife of the hangman into their bowels? Yes,—and for what offence? For one of those offences which are between high treason and nothing: the one or the other, according as audacity or timidity are the accompaniments of despotism.

OFFICIAL APTITUDE MAXIMIZED; EXPENSE MINIMIZED:

AS SHOWN IN THE SEVERAL PAPERS COMPRISED IN THIS VOLUME.

BY JEREMY BENTHAM.

first published in [Editor: illegible word]

PAPER I.—

PREFACE.

To the whole of the matter, which, under nine or ten different heads,* is now, in the compass of one and the same volume, published under the same general title,—belongs one and the same design, and, it is believed, one and the same result. But, it being composed of no fewer than (besides this) nine different papers, published mostly at different times, on different occasions, and under titles by which no intimation of such unity of design is conveyed,—it has occurred that that design may in no small degree be promoted, by holding up to view, in this preface, the way in which they are regarded as being respectively conducive and contributory to it.

The work, from which they take their common origin, was an all-embracing system of proposed constitutional law, for the use of all nations professing liberal opinions: volumes, three; the first of which, after having been some years out of the press, is at this time now first published. Of this work, a main occupation was, of course, the showing by what means the several members of the official establishment—in other words, the public functionaries, of the aggregate body of whom, what is called the government is composed—might be rendered, in the highest degree well qualified, for rendering to the whole community the several services which are or ought to be looked for at their hands: or say, for giving fulfilment to that, which is or ought to be the end of their institution:—namely, the maximization of the happiness of the whole community under consideration.

In any one of these forms of words, may be seen expressed the whole of the benefit in view.

But, in the very nature of the case, connected with this benefit, is a burthen, without which the attainment of this same benefit is, in all places, and at all times, utterly impossible. Of this burthen, the principal and most prominent part, being of a pecuniary nature, is designated and presented to view by the word expense.

Hence it is—that, with the object designated by the words official aptitude, becomes inseparably associated the object designated by the word expense.

Of whatsoever benefit comes to be established, the net amount will be—that which remains after deduction made of the amount of the burthen.

A notion, which, in the course of this inquiry, whether really entertained or no, I had the mortification of seeing but too extensively endeavoured to be inculcated, was—that the net amount of the benefit reaped would, in this case, increase, and as of course, with the amount of the burthen imposed: and—to speak more particularly, that the aptitude of official men for their several situations would, in a manner of course, receive increase with, and with every practicable degree of exactness in proportion to, the expense employed in engaging them to enter upon, and continue in, their respective situations.

On the contrary, for my own part, the more closely I looked into the matter, the more thoroughly did I become persuaded—not only that this opinion is erroneous, but that the exact reverse of it is the real state of the case.

In regard to each of these so intimately connected objects—maximization of official aptitude, and minimization of official expense—to show by what means the best promise of the obtainment of them might be afforded, was of course an object of my inquiries. From the words official aptitude maximized, expense minimized—from these five words might this design receive its expression: and, of the design or purpose of this work, might intimation be thus afforded by its title. But, in addition to this, a further idea, which it is my wish to see associated with these words, is—that of these two states of things—these two mutually concomitantly desirable objects—one bears to the other the relation of cause to effect; for, that from the same arrangement from which the expense so employed will experience diminution, the aptitude in question will, in the natural order of things, receive increase: in a word, that, cæteris paribus, the less the expense so bestowed as above, the greater, not the lesser, will be the aptitude.

Now for the painful part of this inquiry:—

Never, to any subject-matter,—considered as a source of happiness or unhappiness, or both,—have my labours on any occasion been directed, but with a view to the giving increase to the net amount of happiness. But, so intimately blended and intermingled, throughout the whole field, are those two fruits of human action,—never could the sweet be brought to view, but the bitter would come into view along with it: and, as the sweet would, in great measure, come into view and be reaped without effort,—the consequence was, that in clearing away the bitter consisted the great part of the labour necessary to be employed. In such part of the field,—for obtaining, of the bitter—in a word, of the unhappiness—produced by deficiency in the aptitude—a perception sufficient to put me in search after the most effectual mode of supplying that same deficiency,—a very slight glance would commonly suffice. But, this object accomplished, then has come the task of showing the needfulness of the research that had been made: showing this, by showing the bitterness of the fruit with which the whole field was overrun, and the magnitude of the evil, actually and continually coming into existence, from the want of the supposed discovered appropriate and effectual remedy.

Painful (I may truly say) has, on every occasion, been this part of my task: for, never has it happened to me to witness suffering, on the part of any creature, whether of my own species or any other, without experiencing, in some degree or other, a sensation of the like nature in my own nerves: still less possible has it been to me to avoid experiencing the like unpleasant situation, when it has happened to myself to have been contributory to that same suffering.

Yet, without bringing to view the evil,—utterly incomplete would have been the good, produced by the invention and description given of the remedy: for, by all those, whosoever they were, by whom, for the sake of the benefit derived by them from the evil, the existence of the evil would of course be denied, and their endeavours applied to the keeping it out of view,—correspondent ill-will, harboured towards those by whom this source of the good* is endeavoured to be dried up, is a necessary consequence.

Here, then, in connexion with every particle of the good endeavoured and supposed to be done,—come three distinguishable particles of evil: evil, from the contemplation of the suffering endeavoured to be prevented, evil, from the contemplation of the suffering producible, on the part of the evil-doer, by the application made of the remedy; evil, apprehended from the desire of vengeance, produced, in the mind of the evil-doer, by the loss of his accustomed benefit.

Happily, it follows not in this case, that, because the particles of evil bear in number to those of the good the ratio of three to one, they must in the aggregate be superior in value to the good. Happily: for, if such were the consequence,—scarcely where, between man and man, contention had place, would good to any net amount be ever produced.

Moreover, a few hints there are, to which, coupling together two considerations, namely, that of the extent of their usefulness, if any they have, and the narrowness of the space into which they may be compressed, I could not refuse admittance: and, for such admittance, no other place than the present could be chosen with any advantage.

Disappointment-prevention, or say non-disappointment, principle. For the purpose of retro-susception, or say resumption, as well as for that of original distribution,—in this principle may be seen the chief and all-directing guide. In this may be seen, on the ground of utility and reason, the foundation of the whole law of property, penal branch as well as civil. In another place,* application has already been made of it, to the subject of what is called real property:—and thereby explanation given of it. In the present volume may be seen ulterior application made of it, and explanation given to it: namely, in the immediately ensuing paper, intituled Introductory View.

In the train of it come now a few proposed rules and observations:—

1.—Rule I. So long as expenditure continues running through any pipe or channel, which can be stopped without production of disappointment—disappointment to fixed expectations already formed,—forbear to stop it, in any pipe or channel by the stoppage of which such disappointment will be produced.

2.—Rule II. On this occasion, by appropriate delineation draw a clear and express line of demarcation between fixed and floating expectations.

Every solicitor, who sends a son of his to one of the inns of court, expects to see that same son on the chancery bench with the seals before him; as the Lord Bathurst, of Queen Ann’s creation, saw his. Behold here a specimen of floating expectations: correspondent to fixed expectations in ordinary language, are vested interests in technical language.

3.—Rule III. The amount of the sum proposed to be retrenched being given, and the amount of suffering of every sufferer by it being the same, the less the number of the sufferers by it the better.

Application.—Case supposed: in the department in question, mass of expenditure proposed to be retrenched, £1000 a-year: one sum of £1000 a-year forms the salary of one commissioner of a board: another sum of £1000 a-year, the aggregate of the salaries of ten clerks. These situations, all eleven of them, are, on examination, deemed needless: but, without production of disappointment, they cannot, any one of them, be struck off. Direction in consequence: strike off the one commissioner, rather than the ten clerks, or any one or more of them.

4.—Rule IV. Remember always,—that, on both sides, the amount of the provision probably obtainable by each such dismissed functionary, in lieu of what he thus loses, requires to be taken into consideration.

5. Example of a channel of expenditure capable of being stopped up, without disappointment of fixed expectation, this: namely, salaries of the ostentatious class of functionaries sent on foreign missions: secretaries of legation, consuls, and vice-consuls, not included. Offers of service at reduced salaries to every diversity of amount—offers of gratuitous services, not to speak of offers of purchase—let all such offers be called for and received, before choice is made. Of purchase? Yes. For, if a fit man there be, who, instead of being paid for taking upon him the burthen, is willing to pay for the permission to bear it,—why, even against any such offer, should the door be closed?

As to the general indication afforded, of aptitude for a political situation, by the proof given of relish for it by the smallness of the sum required for taking it, or the largeness of the sum ready to be given for it,—see on this head what is said in Paper III. Extract from the Constitutional Code.

6. Note, that—by striking out any individual, in whose instance fixed expectation, either of continuance in possession, or of acquisition of possession, has place,—nothing is gained, upon the whole, by the community of which he forms a part. Not more is the community thus benefited,—than, by the removal of a weight from one side of a ship to another, the ship is lightened.

7. As often as, at the public expense, money is given in the name of indemnification, complete or incomplete, for loss sustained by him without his default,—so often is acted upon a principle, the reverse of that which would produce the disappointment of a fixed expectation, by the uncompensated extinction of a profit-yielding office.

To apply this observation to the matter of the present volume. In the three* first of these papers will be seen nearly the whole of the sweet part of the compound task: in the four next will be seen predominating the bitter. The first thing done will consist accordingly in laying down, all along, what, in my view of it, is right; that, to this, as a standard, for the purpose of detection and exposure, may all along be applied that which, in my view, is wrong.

As to the ninth of these papers,—of the subject of it (the militia) the extent is comparatively narrow,—and the relation of it to the rest must wait for its explanation till some other matters have been brought to view.

Occupied principally in showing how the aptitude in question may be maximized and the expense minimized, and that, by every diminution effected in the expense, augmentation may be given to the aptitude—are the three first and the eighth† of the ensuing papers: occupied in showing that in fact, on the part of the rulers of the British empire in its whole vast mass, and of the English part in particular of them, the endeavour has been, and continues to be, and so long as the form of government continues to be as it is, never can cease to be—to maximize the expense and minimize the aptitude—occupied in the establishment of this position, are the remaining numbers; that is to say, the 4th, 5th, 6th, and 7th‡ of these same papers.

Specially connected with one another will be seen to be Papers 4th and 5th;∥ mutually connected in like manner with one another, Papers 6th and 7th.¶

In Papers 4th and 5th, may be seen occupied the leading minds of the two parties between which the statesmen of those days respectively were divided, years 1780 and 1810,—occupied in the endeavour to obtain the approbation of the community, for principles, by which, if carried into practice, not an atom of the fruits of human labour over and above what is necessary to bare existence, would be left in the hands by the labour of which it was produced. So much for principles:—or, if another word be more agreeable, theory.

In Papers 6th and 7th,¶ may be seen—with what consummate consistency and perfection those same principles have been, and down to the present time continue to be, carried into practice: to how enormous and endless an amount has been swelled the mass of expense, employed under the notion of securing appropriate aptitude on the part of the head functionary in one of the departments; namely, in that of justice;—and the degree of perfection, in which, in that same instance, the quality of inaptitude has had place: and how effectual the provision that has been made, for addition altogether boundless to that same expense. Moreover, in Paper 7th may be seen—how, by the head functionary in another department, namely, that of the home-affairs—not only was support given to the system of predatory exaction, and thereby of expense, just mentioned,—and to the continuance of the official inaptitude also just mentioned,—but in his own department an addition, with (it is believed) unexampled wantonness, made, to the expense of offices subordinate to his own, and thereby to his own emolument; coupled with the inexorable establishment of a set of regulations, having for their most obvious and incontestable effect, not to say their avowed object, the exclusion of every efficient cause, and assignable presumptive proof, of official appropriate aptitude. Sole qualification required, eating and drinking; qualification decidedly rejected—of the several powers belonging to the very office in question, the habitual exercise.

Thus then may be seen—not only unrestricted, but by every day’s practice continually confirmed and acted upon,—the theory to which expression may be given by the words—official expense and official inaptitude both maximized.

When, in the career indicated by the words expense maximized—aptitude minimized, the ruling powers have proceeded for a certain length of time,—it will sometimes happen—that, by the fear of seeing their power drop from under them, they will be induced to stop; and even not simply to make a stand, but actually to make a retreat; and that this retreat, when applied to expense, will be declared under the name of retrenchment.

All this while, the original opposite design—the design of advancing in that same career—continues, of course, in unabated force. For, the same cause which first gave birth to it, will, so long as man is man, make it grow with his growth, and strengthen with his strength. The design, however, not being altogether so acceptable to the people at whose expense, as it is to their rulers by whom, it is entertained and pursued,—hence the endeavour to impress on the minds of the people—instead of the apprehension of its existence—the opposite confidence. But, such is the force of truth, and of the nature of things, that whenever a design of this sort really has place, so it is that, by means of the very endeavours employed to dispel the apprehension of it, it is liable to be brought to light.

Whether, in the several instances of Edmund Burke and George Rose, this result has not had its exemplification,—is among the questions, on which the reader will have to pronounce, should his patience have carried him through papers the 4th and 5th.*

Not unfrequently, those who, by delusive arguments, are labouring to inculcate an erroneous opinion, have, by those same or some other considerations, been themselves involved in the like delusion; such is the influence exercised on the judgment by the affections. In the mind of George Rose, the existence of the power of self-deceit, in quantity more or less considerable, presented itself to me (I remember) as not improbable: in the mind of Edmund Burke, not a particle. In the mind of George Rose (means for observation not being wanting) there seemed to me to be no small portion of downright honesty and goodness of intention; in that of Edmund Burke, nothing better than matchless artifice.

To return to the subject of retrenchment. Just now, a show of a design of this sort having been made, and in that track even some short steps taken,—among the topics, for sometime proposed to be included in this miscellany, was that of retrenchment. But, after some progress made in relation to it, came into view, what ought to have presented itself from the first; namely, that the field of retrenchment is no other than the whole field of expenditure: the only difference being—that the points of view, in which that same field has to be contemplated, are, on the two occasions, opposite. This being borne in mind, time and space were seen joining in putting a peremptory veto upon any regular progress in that track: any progress, presenting, upon the face of it, any pretension to the character of a comprehensive one.

Seeing, however, as above, one supposed proper seat and source of retrenchment—the militia, in relation to which what had occurred to me had already assumed a determinate shape,—the quantity of space occupied by it being but small, admittance (it seemed) need not be refused to it. It forms accordingly the matter of paper 9th.

8. What is the navy good for? Answer—to help to defend colonies. What are colonies good for? Answer—to help to support the navy. Quere, what part of the national expenditure is kept up on the ground of this circle?

9. On the question—by the metropolitan country shall this or that distant dependency be kept up?—there are two sides—two interests—that require consideration: that of the metropolis herself and that of the dependency. To Great Britain and Ireland—say in one word to Brithibernia—would it be matter of advantage or disadvantage to surrender the dominion of British India to the inhabitants, as it surrendered to the inhabitants the dominion of the new Anglo-American United States? On the question whether it would be for the advantage of Brithibernia, much might be said on both sides. On the question, as applied to the nation of British India,—in the minds of those who have read the documents, and in particular the work of the so well-informed, intelligent, and incontestably well-intentioned Bishop Heber,—scarcely can there be a doubt. By the withdrawal of the English regiments from British India, in what respect or degree would Hindoos or Mahometans profit? Answer—in much the same as did the ancient Britons by the withdrawal of the Roman legions.

10. If, in the case of the several European powers, and other civilized nations and governments, security against one another were all that were sought for, at the hands of standing armies and permanent navies,—no less effectually might this security be procured and retained, by proportional diminution than by proportional augmentation. But, by all of them, permanent military force, in one or both branches, whether needed or not, is prized at any rate as an instrument of security for themselves against their own subjects: security by means of intimidation: and security by means of delusive show and corruptive influence.

11. Now for dead-weight. After having so much too long had its habitation, it has at length received its name. It was on the shoulders of the good woman who used to figure upon a halfpenny, a wen, or a millstone about her neck: either emblem may serve. But should the first be preferred, let not imagination take place of reason,—and, turning her back on the herein-above-proposed non-disappointment principle,—go on to say, immedicabile vulnus ense recidendum est.

12. Millstone or wen—it is among the blessings for which Brithibernia stands indebted to Matchless Constitution. In the Anglo-American United States, no such excrescence is known. Pensions, in compensation for wounds received,—and thence for the encouragement necessary to the engaging of men to expose themselves to such casualties,—Yes. But, pensions of retreat,—pensions for widows or orphans, remuneration mis-seated or extravasated,—in these or any other shapes,—none. As to extravasated remuneration, see Paper III. Extract from Constitutional Code.*

13. Exactly as necessary, exactly as reasonable, are pensions of retreat, et cætera, at public expense, for official men,—as for professional men they would be, or for artists, or for tradesmen, or for labouring men engaged in any other profit-seeking occupations.

14. Once upon a time,—in the senate-house of Gotham—a motion was made, to impose upon everybody a tax, and put the whole produce of it into everybody’s pocket. Hear him! hear him! hear him! was the cry. The motion passed by general acclamation. Quere, of the Gotham senate-house what was the distance from St. Stephen’s?

15. Account to be taken. Account of the annual amount per head, of an average pauper on the aristocratical pauper-list called the dead-weight, in each of its several classes, from the £50 a-year class to the £4000 a-year class inclusive, compared with the expense of the democratical pauper-list called the poor rates. Quere, how much longer will the real poor—the vast majority of the community—endure to see five hundred times as much thus bestowed upon one of their betters (and such betters!) as is bestowed upon one of themselves?

One of these days, two comparative accounts will be made up by authority; one, of the expense bestowed upon the democratical class of paupers; the other, of the expense bestowed upon the aristocratical. How much, if anything, does the aggregate of the last-mentioned expense fall short of that of the former? Next to nothing. Think too of the length of time, taken by the one and the other, for arrival at their present magnitude. Calculate the length of time, at the end of which, while the democratical continues stationary, the aristocratical pauper-list will have outrun the interest of the national debt, as much as that same interest has outrun the annual sum applied to the maintenance of government!

Look at him! there he sits! prince of the aristocratical pauper-list, at this moment! Conservator of everything that is evil! implacable enemy of every new thing that is good! Loaded with the spoils—of the injured, the afflicted, the helpless, the orphan, and the widow!

What is the number of clerks, who, after any number of years’ faithful service, would not, with less compunction, be turned a-drift penniless, than this man deprived of the addition thus made to so many hundred thousand pounds, accumulated by the delay, sale, and denial of justice;† by disturbing the peace, for the purpose of plundering the property, of families;—by setting children against parents, and parents against children;—by giving, of his own single authority, origination, execution, and effect, to institutions so shockingly immoral, that neither he nor any other man in his place, would have dared so much as attempt to introduce the proposal of them into either House of Parliament?

Of one of the states of things, held up to view in and by the Defence of Economy against Burke, namely, the state of the crown-lands, a curious enough and highly instructive application may be made to the now existing state of things in the same quarter, as brought to light in and by the admirable speech so lately made in the Honourable House, by Mr. Whittle Harvey. Estimated annual value of the crown-lands obtained by Somers when Lord Chancellor, for his own use, year the 7th William the Third, ad 1695, or thereabouts, £2100 per annum. Of what remained after this grant,—produce, upon an average of fifteen years ending in 1715, £1500 a-year, and no more; according to Mr. Secretary Rose’s pamphlet, intituled “Observations respecting the Public Expenditure and the Influence of the Crown, 2d edit. 1810.” Of the present remnant of that same remnant, annual value, according to various estimates, made by various members, varying between £500,000 and £800,000. Motion being made for a committee of the Honourable House* to inquire by what means this portion of the national property “might be made most available for the public service,” what was the course thereupon taken by the Honourable House? Answer—That which, without the imputation of rashness, a man might, by the wager of “ten thousand pounds to one penny,” have pledged himself for its taking: It declined giving the honourable mover the trouble of any ulterior inquiry. “No inquiry,” was the language: bring “your charge;” that is to say—call for the punitive remedy, and not either the preventive, or the suppressive. Hear and determine without evidence; we being determined that you shall have none.

To this case, as to all others, applies one of the fundamental, characteristic, and distinctive principles of Matchless Constitution; namely, the Judica-teipsum principle. To inquire into the conduct of the servants of the crown belongs not to any men but themselves.

PAPER II.—

INTRODUCTORY VIEW, &c.

The following tract, as the title of it imports, has for its subjects the appropriate aptitude of public functionaries, and the expenditure employed at the charge of the people in engaging persons to subject themselves to the obligation of rendering the correspondent services. It is composed of four sections, detached from the ninth of the thirty chapters, or thereabouts, of a proposed constitutional code, the entire of which, wanting little of completion, will be published as soon as circumstances permit. A table, composed of the titles of the chapters and sections of it, is hereunto annexed.

The class, composed of the members of the official establishment taken in its several branches, was the only class in contemplation when the plan here delineated was taken in hand. In the progress of the work, the idea occurred that, supposing the plan well adapted to its purpose in the case of the class thus distinguished, it might be so, in no small degree, in the case of any other persons whose situation in life would, without any particular view to office, admit of the expenditure of the quantity of time and mental labour, which, with that view, is here proposed to be employed. But, what further may require to be said in relation to this secondary, and as it were collateral, subject, will be rendered more intelligible, by being postponed till after everything which belongs to the primary, and sole relevant, subject, has been brought to view.

Such being the subjects, now as to the objects, or say ends in view. These are, as the title of these pages intimates, maximization of the degree of appropriate aptitude in all its branches, on the part of the functionary in question—and minimization of the expense employed in the creation and purchase of that same aptitude.

In this same title, a proposition fully expressed is—that, in the plan to which it gives denomination, both these objects are endeavoured to be accomplished: a proposition not so fully, if at all expressed, but which will be seen maintained, is, that the accomplishment of the financial object, far from being, as seems but too generally supposed, at variance with that of the intellectual and moral, is, on the contrary, in no small degree, capable of being made conducive to it. A notion but too extensively entertained is—that, whatsoever quantity of public money is employed in engaging individuals to step into official situations, relative aptitude in proportionate degree will follow as a matter of course: and that, for example, if, in the case of a chief judge, for £5000 a-year salary, you get a certain quantity of appropriate aptitude, double the salary, and, without anything further, you double the aptitude. Such, at any rate, is the opinion which, in England, whether inwardly entertained or not, is outwardly and generally acted upon.

With this opinion, that which gives direction to the here proposed arrangements, so far from harmonizing, approaches more nearly to the reverse: insomuch that, supposing a number of competitors, so far as instruction will go, endowed with equal degree of aptitude,—a man, who, if any such there be in the situation in question, is willing to take upon himself, without emolument in any shape, the performance of the duties of an office, is likely to perform them better than another man who would not undertake it for less than £5000 a-year: or even better than he himself would have done, if, on stipulating for that same sum, he had obtained it. In the course of the section entitled Remuneration, being the first of the four sections of which this tract is composed, this opinion, together with the grounds on which it rests, may be seen developed.

First comes the appropriate aptitude: and the problem is, how to maximize it.

When, for the performance of a certain work, an individual finds himself in need of a helper, before he fixes upon any one, he naturally puts questions to any one that offers,—questions having for their object the obtaining satisfaction, as to the relative aptitude of the candidate: if, instead of one only, a number more than one presented themselves, he would, as far as time permitted, put those same questions to them all: and, in the putting of these questions, he would address himself to them separately, or all at the same time, as he found most convenient. In either way, by so doing, he would examine them: he, the examiner; they, the examinees. In private would the examination be of course performed in this case; for, on this occasion, of no person other than the individual himself, would the interest or convenience be in view: by publicity, if obtainable, he would, and in proportion to the number of persons present, be embarassed, and in no way benefited.

To the functionary in chief, who, for aiding him in the business of his department, feels the need of helpers in the businesses of the several sub-departments, their aptitude cannot in the nature of the case be a matter of indifference. His property will not, it is true, as in the case of the individual, be at stake upon the aptitude of his choice. His property, no: but his reputation, yes. If the subordinate chosen be to a certain degree unapt, the reputation of the superordinate will suffer in two distinguishable ways: by the badness of the work done under his orders, and by the weakness, or something worse, evidenced by the badness of the choice.

Under these circumstances, what can he do? For making, in his own person, any such examination as that which the individual, as above, has it in his choice to make, power is altogether wanting to him, for time is altogether wanting. To some person or persons other than himself, he must therefore have recourse for the formation of his opinion, and the determination of his choice. Who, then, shall they be? If, in each instance, the reporter, who in this case will be the recommender, be this or that individual,—what is not certain is,—that the giver of the advice will have had any better grounds for the choice than the asker: what is certain is, that he will not have had so great an interest in the goodness of the choice. For the goodness of his choice, the individual employed is not responsible to anybody but himself: the functionary is responsible to everybody. In so far as he is proof against the temptation to serve his own particular interests and affections at the public expense, his wish will, therefore, be, to see located, in each situation, the individual in whose instance the maximum of appropriate aptitude has place. Unable as he is of himself to perform the examination, the persons to whom it will be his desire to assign the task will in consequence be those, in whom the maximum of appropriate aptitude, with relation to this same task, is to be found. By this most general description, the next most general description is settled: they will be the persons that are most distinguished in the character of instructors in the several branches of art and science in which it is requisite the persons to be located should be proficients.

In regard to the number of the persons present, the examination must, in this case, be either private or public. Which shall it be? Private, it might or might not be as satisfactory as if public, to himself; to the public, it would not be. But, supposing him wise, it would not be so satisfactory, even to himself. For, the more complete the cognizance taken of the proceedings of these examiners by the public, the stronger the inducement they would have, each of them, for rendering his proceedings as well adapted to the purpose as it was in his power to render them. Thus, then, we have the maximum of publicity as a necessary condition to the maximum of appropriate aptitude: of appropriate aptitude—in the first place on the part of the examiners, in the next place, on the part of the examinees, in their quality of persons locable in the several situations,—say, in one word, locables. Evidenced by the answers will be the aptitude of the examinees: by the questions, that of the examiners.

Such, then, should be the examination judicatory. As to the examinees, by the opinion expressed by the votes of the members of this same judicatory, they will at any rate be placed in the list of persons more or less qualified for being located in the several official situations: as to their respective degrees of aptitude, in the judgment of the judicatory taken in the aggregate, they can be expressed by the several individual members. As to the manner in which the deduction may be made, it will be seen in § 16, of which Locable who, is the title.

Next subject, the expense: problem, how to minimize it. First expense, that of the instruction: next expense, that of remuneration for the services to be rendered by those by whom the instruction has been received.

For the instruction there must be the necessary apparatus of instruction: lands, buildings, furniture for every branch: appropriate implements according to the nature of each branch.

For administering the instruction there must, moreover, be instructors, and, for the instructors, subsistence, and remuneration in quantity sufficient to engage their services. As to the pockets from whence the expense is drawn, so far as regards subsistence—bare subsistence, together with the apparatus—they must, in the first place, be those of the public, for in this way alone can the sufficiency of it be secured. This being thus settled, such part of the remuneration as is over and above bare subsistence,—from what source shall it be drawn? Answer: from the pockets of those by whom alone the most immediate benefit from the instruction is reaped: those, to wit, by whom it is received. From them it cannot come, without being accompanied with willingness, and followed by retribution; and the quantity of it will of itself increase in exact proportion to the number of those benefited by it: in which case it will, in the same proportion, be a bounty upon industry on the part of the instructors. Drawn from persons other than those by whom the immediate benefit is reaped, it would neither be accompanied with willingness, nor followed by retribution:—and, if it were, as it naturally would be, a fixed sum—a sum not depending for its quantity on the exertions of the instructor to whom it is given—it would be a bounty upon idleness.

Next comes the expense of the remuneration to the intended functionaries; remuneration for the time and labour requisite to be expended on their part—before location, in qualifying themselves for rendering their several official services—after location, in the actual rendering of those same services.

For this purpose, the nature of the case presents three distinguishable modes:—1. In compliance with appropriate calls, offer to take a less salary than that which has been proposed; 2. Offer to pay a price for it; 3. Offer to submit to its being reduced to a certain less amount, and then to pay such or such a price for it, after it has been so reduced. The two first modes are simple; the third, a compound of the two: all these will have to be considered.

A point all along assumed is—that, in each office, there is but one functionary: in a word, that no such implement as a board has place anywhere. Assumed, and why? Answer: for these reasons: All advantages that can have been looked for from a board are better secured by other means: in particular, by maximization of publicity and responsibility; and because the exclusion of this instrument of intrigue and delay is not less essential to aptitude than to economy. Moreover, these reasons may, as will be seen, be applied with still greater profit, to the judiciary, than to the executive, branch of government.

After all, neither by the intellectual competition, nor by the pecuniary competition, nor by both together, can the individuals, by whom the situation shall be filled, be finally determined. For the formation of this determination, there will still be need of some one person, or set of persons, in quality of locator or locators. By reasons, the essence of which is contained in the word responsibility, the choice has, in this case likewise, been determined in favour of number one.

This one person can be no other than the functionary in chief, under whose direction the functions belonging to all the several situations in question are to be exercised. As to his choice, it cannot but be influenced, not to say directed, by information which the examinations have put the public in possession of, as to the merit of the respective candidates; but it will not, because it cannot, be determined by any positive rule. By all that has been done, or can be done, towards divesting the power—the patronage (for that is the name of it) of the quality of arbitrariness,—it will not therefore be by any means divested of value, or sunk beneath the acceptance of a person competent to the task of exercising it.

In the annexed table of chapters and sections, [Paper XI.] will be seen a list of the several ministerial situations to be filled. Prime minister will be the natural appellation of him by whom those are thus filled, and by whom the exercise of the functions respectively belonging to them is directed. In § 17, intituled Located Law, will be seen how this consummation is proposed to be effected.

But, once more as to the instructors. After whatsoever may have been done for engaging them, remains still the question—where can they be obtained? Three sources of obtainment, and no more, does the nature of the case afford: they must be found at home, they must be made at home, or they must be imported from abroad. In each of these three modes, invitation is necessary. Formation is, in this case, an operation pre-eminently tedious: and the formators, where shall they be found? To find or make them would be to remove a smaller, by a greater difficulty. Different, according to the circumstances of the community in question, will, in this particular, manifestly be the eligible course.

Now as to the collateral subject, national education, and the assistance which the arrangements proposed for the instruction of official functionaries would give to it. What is manifest here is, that whatever is good, as applied to functionaries, will not be otherwise than good, as applied to non-functionaries: whatever promotes useful instruction in any shape in the one case, will promote it in that same shape, in no less degree, in the other. The only difference is—that, in the case of national education, that is to say, in the case of a youth educated at the charge of his parents,—for occupations other than the exercise of a public function,—there will be no service for the public to buy, no salary for the public to sell: and, the taking the benefit of the instruction provided will, on the part of each individual, be—not matter of necessity, as in the case of an official situation, but matter of choice. It was of course with a view to office alone, that the idea occurred, of bringing to view the several branches of instruction, that appeared requisite to give to public men the best qualification possible for the several classes of offices. But, as far as it goes, this same exhibition will be of use, with a view to no small variety of private occupations. When proposing for his child this or that occupation, the parent will find in this table, if not a sufficient body of information, a memento, at least, reminding him of the need of his satisfying himself as to what are the branches of instruction to which the mind of his child shall be directed, and of his looking out accordingly for an appropriate set of instructors.

As to instructors,—of whatsoever degree of aptitude will have been given to persons of this class, for the purpose of the instruction to be given by them to functionaries, the benefit will be open to non-functionaries: they who are able and willing to instruct the one, will not be less so to instruct the other.

So much as to aptitude. And as to expense,—of the expenditure necessary to the instruction of functionaries, a part, more or less considerable, will have been employed in the obtainment of means of instruction, which, without detriment to the one, may be employed in the instruction of the other. Of all such means the non-functionary class may have the benefit, without paying for it, any further than, in their quality of members of the whole community, they had necessarily been made to pay, along with all others, for the instruction of the functionary class.

To a plan of this sort, various objections will of course present themselves. These, as far as they could be anticipated, are here collected, and such answers as seemed sufficient, subjoined.

For conveying a general conception of them, the few words following may, in this page perhaps, suffice:—

I. Objection to the publicity of the examination—Timid aptitude excluded.

II. Objection to the probationary period proposed for the instruction—Time, thence aptitude, insufficient.

III. Objections to the pecuniary competition:—

1. Pecuniary responsibility diminished—thence corruption and depredation probabilized.

2. Venality established.

3. Unopulent classes excluded, and thus injured.

In the perusal of the here proposed arrangements, one thing should all along be borne in mind. The sort of government supposed by them is a representative democracy: the time in question that of the infancy, not to say the birth, of the state in that same form: such being the state of things, in which, in the largest proportion, the information endeavoured to be conveyed, could have any chance of being listened to.

But, in the several subordinate situations, even supposing the highest to be filled by a monarch, not inconsiderable is the number of those of the proposed arrangements, which, in the eyes even of the monarch himself, might be not altogether unsuitable. For, setting aside any such heroic endowment as that of sympathy for the people under his rule,—to a monarch, however absolute, neither can appropriate aptitude on the part of his official servants, nor frugality in respect of the pay allotted to them, be naturally unacceptable. The more completely security, in all its shapes, is given to the subject many, the greater is the quantity of wealth they will acquire; and, the greater the quantity they acquire, the greater is the quantity that can be extracted by him from them, for his own use: in particular, for the maintenance of his standing army—that high-pressure, high-priced, and most supremely-prized, engine, which is at once an instrument of supposed security for the timid, of depredation for the rapacious—of oppression for the proud—of boasting for the vain—and a toy for the frivolous and the idle: and, as to frugality, the less is expended in the comfort of any part of the subject many, the more is left for the fancies of the ruling one.

Setting aside the case of a pure aristocracy—a form of government nowhere exemplified to any considerable extent—one only form there is, in which maximization of official aptitude, and minimization of expense, are of course objects of congenial horror to the rulers. This is that, the composition of which is a mixture of monarchy and aristocracy, with a slight infusion of democracy in the shape of a sham-representative body, in the formation of which the subject many have a minute share. In this state of things, expense of official emolument is maximized: and why? That the possessors may be pampered by the receipt of it, the people intimidated by the force kept up by it, corrupted by the hope of it, and deluded by the glitter of it. Aptitude is, at the same time, minimized: and why? Because, if the contents of the cornucopia were distributed exclusively among the most apt, those junior partners of the all-ruling one, with their dependents and favourites, would have little or no share in it.

Four distinguishable sorts of matter may be seen pervading the whole texture of this extract: the inactive, the expositive, the ratiocinative, and the instructional. Of these, the enactive, the expositive, and ratiocinative, have already been exemplified in the three-volume work, entitled, “Traités de Legislation Civile et Penale,” being the first of the four works published in French, from the author’s papers, by M. Dumont.* Had the political state, to the circumstances of which the codes in question were to be adapted, been, as mathematicians say, a given quantity,—the instructional might not perhaps have been brought into existence: at any rate, it would not have occupied anything near the quantity of space which it will be seen to occupy here. But, the indeterminateness of these circumstances impossibilized, on many occasions, the giving to the matter the form of a positive enactment, capable of standing part of the text of the law, as in the case of a code emanating from authority. Necessitated was therefore the expedient of employing, instead of determinate expressions, general descriptions—for the purpose of conveying such idea as could be conveyed of the matter of the provision, which the nature of the case presented itself as demanding. By the instructional matter is accordingly meant the sort of matter, the purpose of which is the giving instructions to the legislator, if the tide of events should ever carry into that situation a man, or body of men, to whom it seemed good to give to such part of the matter as could not here be expressed in terminis, a character conformable in principle, to those parts, for which an expression thus completely determinate, has already been proposed.

Such being the distinctive characters of the parts in question, by some minds, it was thought, it might be found a commodious help to conception, if, as often as they presented themselves, applicable indication were given of them throughout, by prefixing to each portion of matter its appropriate denomination as above. To any person, to whom these additaments appear useless, they need not offer any annoyance,—for he has but to pass them by, and read on, as if no such words were there.

Of a code, to which the stamp of authority had been affixed, these distinctions would afford a commodious method of exhibiting so many authoritative abridgments: abridgments of the only sort, on which any safe reliance can be placed. By the enactive part, if published alone, the most condensed of all the abridgments would be presented: by appropriate types and figures of reference, intimation of the existence of the omitted matter might be conveyed, without any sensible addition to the bulk of it. In another edition, might be added the expositive matter; in a third, the expositive and the ratiocinative in conjunction.

In England, a highly laudable disposition has of late shown itself, and from a quarter from which it might be followed by effect:—a disposition to raise the language of the legislator to a level, in respect of propriety, somewhat nearer than that which it occupies at present, in comparison with the worst governed among other civilized nations, whichsoever that may be. A design so extensively useful, would indeed stand but an indifferent chance of being carried into effect, if the fraternity of lawyers, professional as well as official, could not find adequate inducement for giving it their permit. But neither is such toleration altogether hopeless. What that particular interest requires is—that the rule of action shall continue in such a state, that, without their assistance, comprehension of it, to a degree sufficient for the regulation of conduct, should, to all other members of the community, continue impossible. But, such is the excess to which the bulkiness and disorderliness of it have been carried;—such, in consequence, even to themselves, the difficulty of stowing it and keeping it stowed in the mind, in a state capable of being applied to use as wanted;—that, for their own relief under that difficulty, the risk of rendering the oracle too extensively and effectually comprehensible, may perhaps appear not too great to be hazarded.

This being supposed,—a result, that seems not altogether out of the sphere of possibility, is—that even those to whom the matter of all such codes as those here exemplified is—it need not be mentioned by what causes—rendered the object of insurmountable abhorrence,—the form, as far as regards arrangement and expression, may, in a degree more or less considerable, be regarded as a subject for adoption. To any person by whom it may have happened to be viewed in this light, the intimation conveyed by the words enactive, expositive, and ratiocinative, may perhaps appear not altogether devoid of use. In the case of the series of codes to which the present extract belongs,—in proportion as the matter presented itself, the form in which it might be presented, it was thought, to most advantage, came along with it. Thus it was, that, as they were committed to paper, explanations, belonging to the head of form, became so many materials for a short disquisition, which may perhaps be submitted to the public in a separate state. But, even from the small specimen here exhibited, it may be perhaps in some sort conceived, how great would be the contribution to condensation, as well as precision, if the expedient were employed, of substituting to the continued repetition of a portentous pile of particulars, that of a single general expression, in which they were all contained: the import of that expression having, once for all, been fixed—fixed, by an appropriate exposition, in the ordinary mode of a definition per genus et differentium—or, where that is inapplicable, in such other mode as the nature of the case admitted of.

Between the several sorts of matter, distinguished from each other as above,—the actual separation, it cannot but be observed, has not, with any approach to uniformity, been, on this occasion, made. In one and the same article, two, or even more, of these species, will not unfrequently be found exemplified. In an authoritative code, this want of symmetry might, supposing it worth while, be remedied. In the present unauthoritative work the difficulty of separating the proposed enactive and the instructional from each other, was found so great, that the necessary labour and time (which would have been neither more nor less than that of writing the whole anew) was felt to be too great to be paid for by any possible use. In like manner, in other instances, the ratiocinative will be seen blended with the enactive. In an authoritative code, the labour might perhaps, in this case, though this does not appear altogether clear, be paid for by the use: for example, for the purpose of an authoritative abridgment, such as the one above proposed. But, in the present unauthoritative sketch, a mixture of the ratiocinative presented itself as desirable, not to say necessary, were it only to the purpose of humectating the dryness of the enactive matter, and diminishing the aversion, which a set of arrangements, so repugnant to commonly-prevailing notions and affections, would have to encounter, if inducements to acquiescence were not in some shape or other mixed up with it.

In a civil, or say, a right-conferring, code (for civil expresses so many different things that it expresses nothing,) and in a penal, or say a wrong-repressing code, especially if made for a given political state, the separation would be a work less difficult than it has been found in the present one: accordingly, in the Traités de Legislation, it may, in both instances, be seen effected.

In that part of the present proposed code, which regards the judiciary establishment, the heads of which may be seen in the annexed table, [Paper XI.] the separation will be found much less imperfect.

Another particular, which will naturally call forth observation, is the practice of adding to the numerical denomination of a section, when referred to, the title by which it is characterized. In authoritative codes, an additament of this sort is not, however, without example. In the present unauthoritative sketch it has been matter of necessity. By the author, nothing he writes, in the character of a proposed code or law, can ever be regarded as perfected, so long as he lives: in the proposed code in question, alteration after alteration have, in great numbers, at different times, been actually made: further alteration after further alteration will continually be contemplated: and wherever, in regard to an entire article, either insertion or elimination have place, all the articles which follow it in the same section will require a fresh numerical denomination, and the anterior reference, if preserved, will be found delusive: and so in the case of sections or chapters.

Into what is new in point of form, a further insight will, it is hoped, ere long be given, by another and larger preliminary extract from the present Constitutional Code; to wit, the judiciary part above alluded to. The enactive matter, combined with what seemed the indispensable portion of the other sorts of matter, is already in a state fit for the press, as likewise a considerable portion of the ratiocinative and instructional, in a detached state. From the annexed table of the titles of chapters and sections for the whole, an anticipation more or less extensive may be formed of the instruments which have been contrived for the purpose of compression, and may be regarded as a sort of condensing engines: a principal one may be seen composed of the general word function, followed by the several specific adjuncts attached to it. In several of its parts, the matter of this same judiciary code could not be determined upon, without correspondent determinateness being given to correspondent portions of the procedure code: a code for this purpose is in such a state of forwardness, that all the principal and characteristic points are settled, and nothing remains to be done, but the reducing to appropriate form some portion of the matter which has been devised.

In this work will be included, as far as circumstances admit, an all-comprehensive formulary, exhibiting forms for the several written instruments of procedure: in particular the instruments of demand and defence, for suits of all sorts, as also forms for the mandates required to be issued by the judge, on the several occasions, for the several purposes: and for each mandate an appropriate denomination has of necessity been devised. On this occasion, as on every other, the endeavour has all along been to render the instrument of designation as characteristic as possible of the object designated. Summonition mandate will accordingly be seen taking place of subpæna; prehension and adduction mandate, of capias and habeas corpus: and, in lieu of adduction,—as the purpose requires, will be subjoined abduction, transduction, sistition, sequestration, vendition, and so forth; an appellation, such as prehension, and vendition mandate, for example, may, it is hoped, be found by lay-gents to constitute no disadvantageous substitute to fieri facias or fi fa:—to lay-gents, that is to say, to all human beings, but those whose interest it is that everything by which human conduct is undertaken to be regulated, should be kept to everlasting in as incomprehensible a state as possible.

Demand paper will, in like manner, for all occasions taken together, be seen substituted, to the aggregate, composed of action, mandamus, bill, inductment, information, libel, and so forth: defence paper, to plea, answer, demurrer, and so forth, for, if artificial injustice has its language, so has natural justice. But time and space join in calling upon conclusion to take place of digression.

With the regret that may be imagined, does the reflection occur—that, as far as regards the diction, there are but too many political states, in which the above-mentioned views, supposing them approved of, could not be carried into any such full effect, as in those in which the language in use is the English: for, with the exception of German, there exists not, it is believed, anywhere, that language, which will lend itself, anything near so effectually as the English, to the formation of such new appellatives as will be necessary to precision and condensation: in particular, [ineffectual is] the French, which, notwithstanding its scantiness, unenrichableness, and intractability, still seems destined to continue—say who can, how much longer—the common language of the civilized world.

For a particular purpose, the present extract has been sent to press, before the proposed code to which it belongs, and in which it is designed to be inserted, could be completed. Hence it is that, but for this information,—the numerical figures, in the titles to the several sections, might be taken for so many errata, or have the effect of giving to the whole publication the appearance of a fractional part of a work that has been lost.

This same circumstance will serve to account for the headings of the pages.

It may not here be amiss to observe, that of the bulk of the work in its complete state, no judgment can be formed, from the space occupied by the three first of these four sections. The enactive part of the first four chapters together, for example, does not occupy so large a space as does the least of these same three sections.

Amid so much innovation, a short caution may be not altogether unseasonable. In the frugality here recommended, no retroaction is comprised. By the taking away of anything valuable, either in possession, or even though it be but in expectancy, so it be in fixed expectancy, whether on the score of remuneration, how excessive soever, or on any other score,—pain of frustrated expectation—pain of disappointment, is produced. In the import of the above words, fixed expectancy, is contained whatever is rational and consistent with the greatest-happiness principle, in the pertinacity, manifested by the use of the English parliamentary phrase, vested rights: and note—that by forbearing to apply the alleviation which, by the defalcation in question might be given, in respect of the public burthens, to persons of all classes taken together, no such pain of disappointment is produced.

As little ought it to pass unheeded, that, supposing a high-paid functionary divested of a certain portion of wealth thus misapplied, he is not, by a great many, the only sufferer: with him will be sufferers all persons of all classes, in proportion as their respective means of expenditure were derived from his. Supposing, indeed, the over-pay derived from crime—obtained, for example, by false pretences,—by this supposition the case is altered.—But, add the supposition, that all by whom the punishment should be ordained, or that all by whom a part should be taken in the infliction of it, are sharers in the guilt, then comes the question—by whom shall be cast the first stone? An Englishman need not look far to see this supposition realized. Prudence might in this case join with sympathy, in the constructing a bridge of gold, for carrying to the land of safety all opponents. Only at the expense of those, who would otherwise have been, but never will have expected to be, receivers—can retrenchment, on any other ground than that of punishment, be, except in case of public insolvency, without hesitation, justified.

On the occasion of the ensuing proposed arrangements, mention of divers periods of years has of necessity been made. It might have been some help to conception, if, on the occasion of this or that train of suppositions, a determinate day could have been fixed, for the commencement of each period. This, however, could not be done. For different countries, different days would have been requisite. For this country—England, to wit—the day may be fixed by imagination with something like precision. The day for the commencement of this code with the stamp of authority on the first page of it, is the day which will give commencement to the hundred and first year, reckoning from the day on which the author will have breathed his last. In the meantime, to those who have the faculty of extracting amusement from dry matter, it may serve as a second Utopia, adapted to the circumstances of the age. Of the original romance, it may, however, be seen to be—not so much a continuation as the converse. In the Utopia of the sixteenth century, effects present themselves without any appropriate causes; in this of the nineteenth century, appropriate causes are presented waiting for their effects.

PAPER III.—

EXTRACT FROM THE PROPOSED CONSTITUTIONAL CODE;

ENTITLED, OFFICIAL APTITUDE MAXIMIZED—EXPENSE MINIMIZED. BY JEREMY BENTHAM, ESQ. BENCHER OF LINCOLN’S INN.

london, 1816.

PAPER IV.—

SUPPLEMENT TO THE ABOVE EXTRACT.

PAPER V.—

DEFENCE OF ECONOMY

AGAINST THE RIGHT HONOURABLE EDMUND BURKE.

first printed in 1817.

ADVERTISEMENT.

The paper here presented to the reader under the title of Defence of Economy against the Right Honourable Edmund Burke, together with another containing a defence of the same more useful than welcome virtue against the Right Honourable George Rose, were written as long ago as in the year 1810. At that time the joint destination of the two papers was—to form a sequel to a tract of no great bulk, having for its title Hints respecting Economy. For its subject, it had taken the whole of the official establishment, and for its objects, two intimately connected practical operations, viz. minimizing official pay, and maximizing official aptitude: operations the mutual subservience of which, in opposition to the universally convenient, universally received and acted upon, and in truth but too natural opinion, of their incompatibility, was maintained. The circumstance, by which the publication of it, and in some degree the completion of it, was suspended, was the expectation of obtaining certain documents, which in the way of exemplification and illustration afforded a promise of being of use. Meantime, the turn of affairs produced some incident or other, by which the author’s attention was called off at the moment to some other quarter; and thus it is, that altogether the three papers have been till now lying upon the shelf.

As to the two objects in question, so it was, that the plan, which had presented itself to the author as that by which both of these objects might be secured, and the only one by which either of them could be so in any degree approaching to perfection, having the misfortune to find itself reprobated with one voice by the two distinguished statesmen above mentioned, the removal of the impediment opposed by so strong a body of authority, presented itself of course as an object of endeavour altogether indispensable.

In the order at that time intended, a statement of the principles which had presented themselves as claiming the direction of practice would have preceded the examination here given of the principles which it was found necessary to combat:—hence the reference which may here and there be found to portions of matter, which neither in any other place in which they could be referred to have made, nor in this place can make, their appearance. By a change in the order thus originally intended, that one of the two defences which will here be found (for in the present receptacle there was not room for the other)* cannot, it will therefore be evident enough, but appear under more or less of disadvantage. But, to the rendering them perfectly intelligible as far as they go, it did not seem that, to either of them, any of the matter which belonged to that by which they had been designed to be preceded, was necessary: and, by the forms of warfare, especially considering the situation and character of the person against whom it was unavoidably directed, the attention of many a reader (it has been supposed) may be engaged, whose perseverance would not carry him through the dry matter of a sort of didactic treatise, the principles of which are in a state of irreconcilable hostility to the personal interest of that class of persons which forms the subject of it—to which it cannot but look for the greatest number of its readers—and without whose concurrence, how far soever from being accompanied with any degree of complacency, it could not at any time be in any degree carried into effect.

At the time when these papers were penned, not any the slightest symptom of official regard for public economy was it the author’s good fortune to be able anywhere to recognise: everywhere it seemed an object of contempt—of contempt not only to those who were profiting by, but to those who were and are the sufferers from, the want of it. Under this impression, the wonder will rather be, how the author’s perseverance could have carried him so far into the subject as it did, than how it should happen that, by the sense of a slight deficiency, the suspension should have been commenced, and, by a series of intervening avocations, have been continued. At present, in this respect, for a time at least, matters seem to have undergone some change. Surely enough, if it does not at the present, small indeed must be its chance of obtaining any portion of public attention at any future point of time. But should it happen to the two, or either of them, to obtain any portion of favourable regard, the more favourable, the greater will be the encouragement afforded for the labour necessary to the bringing the plan to that degree of maturity which would be necessary to its producing any assignable effect in practice.

Short as it is, in the intimation above given of the nature of the plan, one circumstance will already be but too undeniably visible; viz. that not only without any exception in respect of the first of its two connected objects, viz. minimizing official pay, but likewise, and with very little exception in respect of the other, viz. maximizing official aptitude, nothing can be more irreconcilably opposite to the particular interest of that class of persons, without whose concurrence no effect whatever could be given to it. Yes; even in respect of this latter object: for if, in the instance of every office, so odd an effect as that of an exclusion put upon all who were not the very fittest for office, or even upon all who were not flagrantly unfit for it, were to be the result, an exclusion would thus be put upon all those, for whom—and their connexions, and the connexions of those connexions, and so on—for whom gentlemen are most anxious, because in every other way they find it most difficult, to provide. But if, on the part of the plan in question, the objection is grounded on the opposition of interests, and consequent unwillingness were to be regarded as a proof of impracticability, it would be a proof, not only that in government nothing good will ever be done, but moreover, that in government in general, and in our own in particular, of all the good that has ever been done, the greater part has not ever been done. Among the points on which government turns, some there are relative to which the interest of the ruling few, be they who they may, coincides with the universal interest; and as to all these points, in so far as it happens to them to know what that same universal interest is—as to all these points, gentlemen’s regard for that same universal interest may be reckoned upon without much danger of error, or much imputation on the score of credulity. Unfortunately, under most governments, and under this of ours in particular, other points there are, in which that partial and sinister interest is in a state of implacable hostility with the universal interest: and of this unfortunate number are the two just mentioned: and so far as this hostility has place, so far is the universal interest, as being the least condensed, sure of being overpowered by, and made a constant sacrifice to, that which is most so.

In this state of interests, the subject-many may deem themselves particularly happy, when, to make up a provision worthy of the acceptance of a member of the ruling few, nothing more than the precise amount of that same sum, with the addition of the expense of collection, is taken out of the pockets of the subject-many. An unfortunately more common case is—where, for each penny put into the privileged pocket, pounds to an indefinite number must be, and are accordingly, taken out of all pockets taken together: from privileged ones in this way, with more than adequate compensation—unprivileged, without anything at all. Thus it is, that, while wars are made to make places, places are made to secure commencement or continuance to wars: and, lest this should not be enough, distant dependencies—every one of them without exception productive of net loss—are kept up and increased. Yes; productive of net loss: for this is as uncontrovertibly and universally the case, as that two and two make four; for which reason, no man who has a connexion to provide for, or to whom power and glory, might, majesty, and dominion, in the abstract, are objects of concupiscence, can endure to hear of it.

As to war, so long as in the hands of those who have speech and vote in parliament, or of their near connexions, offices are kept on foot, with emolument in such sort attached to them, as to be materially greater in war than in peace, who is there that will venture to affirm that, of a parliament by which an arrangement of this sort is suffered to continue, the conduct is in this respect less pernicious in effect, or, when once the matter has been brought to view, less corrupt in design, than it would be if in that same number the members of that same body were, by masses of money to the same value, received under the name of bribes, engaged by one another, or by any foreign power, clandestinely or openly, thus out of an ocean of human misery to extract so many of these drops of comfort for themselves? In both cases, the same sums being pocketed—pocketed with the same certainty, and under the same conditions—in what particular, except in the language employed in speaking of them, and in that chance of punishment and shame which would have place in the one case, and has not in the other, do these two cases present any the smallest difference? Tell us, good Sir William!—tell us, good your lordship, lord of the freehold sinecure!—exists there any better reason, why emoluments thus extracted should be retained, than why bribes given and received to the same amount, and by the same means, without disguise, should, if received, repose in the same right honourable pockets?

In a certain sensation called uneasiness, Locke beheld, as his Essays tell us, the cause of everything that is done. Though on this occasion, with all his perspicuity, the philosopher saw but half his subject (for happily neither is pleasure altogether without her influence,) sure it is, that it is in the rougher spring of action that any ulterior operation, by which the constitution will be cleared of any of its morbific matter, will find its immediate cause.

Yes:—in the returning back upon the authors some small portion of the uneasiness which the sufferers have so long been in the experience of—in this necessary operation, for which the constitution, with all its corruptions, still affords ample means—in this, if in anything, lies the people’s hope.

The instrument by which the god Silenus was made into a poet and a prophet—it is by this, if by anything, that noble lords and honourable gentlemen will be fashioned into philosophers and patriots: it is by this, if by anything, that such of them whose teeth are in our bowels, will be prevailed upon to quit their hold.

Submission and obedience on the one part are the materials of which power on the other part is composed: whenever, and in so far as, the humble materials drop off, the proud product drops off along with them. Of the truth of this definition, a practical proof was experienced in 1688 by King James, in the case of England and Scotland: in 1782 it was experienced by King George and his British parliament, in the case of Ireland. In the character of ancient Pistol eating the leek, in that same year was the first Lord Camden seen and heard in the House of Lords by the author of these pages, demonstrating, by the light of an instantaneous inspiration, to ears sufficiently prepared by uneasiness for conviction, the never till then imagined reasonableness of the termination of that system, under which that island was groaning, under the paramount government of a set of men, in the choice of whom it had no share; in the same character, in the event of a similar expediency, might his most noble son be seen in one house, and his right honourable grand nephew in the other, holding in hand—the one of them a bill for the abolition of sinecures, useless places, needless places, and the overpay of useful and needful places; the other a bill for such a reform in the Commons House of Parliament, as may no longer leave the people of Great Britain, in a number more than twice as great as the whole people of Ireland, in a condition, from which the people of Ireland were liberated, as above, at the instance of the learned founder of an illustrious family, which was, in one instance at least, not ill taught: in a word, such a reform as, by divesting the ruling few of their adverse interest, by which, so long as they continue to grasp it, they are rendered the irreconcilable enemies of those over whom they rule, will leave to them no other interests than such as belong to them in common with the people, who are now groaning under their yoke.

What belongs to the only effectual remedy which the nature of the case admits of, viz. a restoring change (for such in no small degree it would be) in the constitution of the House of Commons—may perhaps be spoken to elsewhere: it belongs not directly to this place. What does belong to it is the nature of the principles established on the subject of public expenditure: principles not only acted upon, but avowed: not only avowed, but, from the connected elevations—the alas! but too closely connected elevations—the mount of the houses and the mount of financial office, preached. In these principles, it was long ago the fortune of the author to behold causes of themselves abundantly adequate to the production of whatever sufferings either are felt or can be apprehended: and if it be without any very great demand for our gratitude, yet will it be seen to be not the less true, that to two distinguished statesmen, one of whom is still in a condition to answer for himself, we are indebted for the advantage of beholding these same principles in a tangible shape—in that tangible shape in which they have been endeavoured to be presented to view, in two separate yet not unconnected tracts; viz. in the present Defence of Economy, and in the other with which it is proposed to be succeeded.

November 1816.

TITLES OF THE SECTIONS.

• I.Defence of Economy against Burke.
  • Sect. I. Burke’s Objects in his Bill and Speech.
  • II. Method here pursued.
  • III. Propositions deduced from Burke’s Economy Speech.
    • 1. Concerning Public Money—what the proper Uses of it—Propositions 1, 2, 3. ☞ See Defence against Rose, § 2, 3, 4, 5, 6, 8, 9.
  • IV. Concerning Title to Reward—Proposition 4.
  • V. Concerning virtuous Ambition, Gratitude and Piety—Propositions 5, 6, 7, 8.
  • VI. Concerning Party Men and their Principles—Propositions 9, 10.
  • VII. Concerning Ministers and their Duty to themselves—Propositions 11, 12, 13, 14.
  • VIII. Concerning Gratuitous Service and the Profligacy involved in it—Propositions 15, 16.
  • IX. A Prophecy, and by Burke—The King will swallow up the whole Substance of the People—Proposition 17. ☞ See Rose for the manner how.
  • X. Gratuitous Service, Burke’s Objections to it examined.—Necker.—Burke’s East-India Bill.
  • XI. Burke’s Objections to the Application of the Principle of Competition to this Purpose—its Frivolousness.
  • XII. Concluding Observations.—Burke, why thus examined.
• II.Defence of Economy against Rose.
  • Sect. I. Introduction.
  • II. Mr. Rose’s Pleas in Bar to Economy.—Plea 1. Vastness of the Expenditure.
  • III. Plea 2. Need of Provision for Decayed Nobility, &c.
  • IV. Plea 3. Need of Subsistence for Official Persons.
  • V. Plea 4. Need of Money for making Fortunes for Official Persons and their Families.
  • VI. Plea 5. Need of Money for buying Men off from Professions.
  • VII. Digression concerning the Value of Money.
  • VIII. Plea 6. Need of Money as a Stimulus to Official Exertion.
  • IX. Plea 7. Need of Money for the Support of Official Dignity.
  • X. Plea 8. Concerning the late Mr. Pitt’s Expenditure:—the Impropriety of Economy how far proved by it.
  • XI. Concerning Influence.
  • XII. Concerning Pecuniary Competition—and the Use made of the Principle.

DEFENCE OF ECONOMY AGAINST BURKE.

SECTION I.

BURKE’S OBJECTS IN HIS BILL AND SPEECH.

I begin with Mr. Burke: and this, not only because, as compared with that of any living statesman, the authority of a departed one unites the advantages that are afforded to authority of the intellectual kind by anteriority and by death; but because it seems but natural that, in the delivery of his own opinions, the junior and survivor should have drawn upon his illustrious predecessor, for such assistance, if any, as, in the way of argument, he may have regarded himself as standing in need of.

Such, as they will be seen to be, being the notions advanced by the orator—such their extravagance—such their repugnance even to the very measure they are employed to support,—what could have been his inducements, what could have been his designs? Questions these, in which, if I do not much deceive myself, the reader will be apt to find at every turn a source of perplexity in proportion as the positions of the orator present themselves to view, stripped of those brilliant colours, by the splendour of which the wildest extravagances and the most glaring inconsistencies are but too apt to be saved from being seen in their true light.

In the hope of affording to such perplexity what relief it may be susceptible of, I shall begin with stating the solution which the enigma has suggested to my own mind:—showing what, in my view of the ground, was the plan of the orator’s campaign—what the considerations by which he was led thus to expose his flanks, laying his principles all the time so widely open to the combined imputations of improbity and extravagance. Here then follows the statement by way of opening. On the mind of the intelligent and candid reader, it will make no ultimate impression any farther than, as to his feelings, the charge stands in each instance sufficiently supported by the evidence.

Needy as well as ambitious—dependent by all his hopes on a party who beheld in his person the principal part of their intellectual strength—struggling, and with prospects every day increasing, against a ministry whose popularity he saw already in a deep decline, the orator, from this economical scheme of his, bill and speech together, proposed to himself, on this occasion, two intimately connected, though antagonizing objects; viz. immediate depression of the force in the hands of the adversary, and at the same time the eventual preservation and increase of the same force in the hands of the assailants, in the event of success, which on the like occasions are, by all such besiegers, proposed to themselves, and, according to circumstances, with different degrees of skill and success pursued.

For the more immediate of the two objects, viz. distress of the enemy, it was, that the bill itself was provided; and to this object nothing could be more dexterously or happily adapted. Opposition it was certain of: and whatsoever were the event, advantage in some degree was sure. Suppose the opposition completely successful, and the whole plan of retrenchment thrown out together: here would be so much reputation gained to the promoters of the measure, so much reputation lost to the opponents of it. Suppose the plan in any part of it carried, in proportion to the importance of the part so carried, the reputation of its supporters would receive an ulterior increase: while that of its opponents, the weakness betrayed by them increasing in proportion to the conquests thus made upon them, would, in the same proportion, experience an ulterior decrease.

But as it is with the war of hands, so it is with the war of words. No sooner is the conquest effected, than the weakness of the vanquished becomes in no inconsiderable degree the weakness of the conquerors—of the conquerors, who from assailants are become possessors. To this eventual weakness an eventual support was to be provided.

To this service was his speech directed and adapted: we shall see with what boldness, and—in so far as the simultaneous pursuit of two objects, in themselves so incompatible, admitted—with what art.

Such in truth were the two objects thus undertaken to be recommended—recommended at one and the same time—to public favour: a practical measure (a measure brought forward by his bill)—a measure of practice, and in the same breath a set of principles with which, necessary as they were to the main and ulterior purpose, the measure, so far as it went, was in a state of direct repugnancy.

The problem, therefore, with which his ingenuity had to grapple, was—so to order matters, as that the economical measure should be pursued, and even if possible carried, with as little prejudice as possible to the necessary anti-economical principles.

Of principles such as these which have been submitted to the reader* —of principles really favourable to frugality and public probity—of principles in which waste and corruption would equally have found their condemnation, in whatever hands—in the hands of whatever party—the matter of waste and means of corruption were lodged,—of any such principles the prevalence would, by its whole amount, have been in a proportionable degree unfavourable to the orator’s bright and opening prospects. Once in possession of the power he was aiming at, the only principles suitable to his interests, and thence to his views, would be such principles as were most favourable to the conjunct purposes of waste and corruption. So far as was practicable, his aim would therefore be, and was—to preserve for use the principles of waste and corruption in the event of his finding himself in possession of the matter and the means—to preserve them in undiminished, and, if possible, even in augmented, force.

For this purpose, the only form of argument which the nature of the case left open to him was, that of concession or admission. Such, accordingly, as will be seen, was the form embraced by him and employed.

By the portion, comparatively minute as it was, of the mass of the matter of waste and corruption, of which his bill offered up the sacrifice, his frugality and probity were to stand displayed: by the vast, and as far as depended upon his exertions, the infinite mass preserved—preserved by the principles let drop, and as it were unwillingly, and as if wrung from him by conviction in his speech, his candour, his moderation, his penetration, his discernment, his wisdom,—all these virtues were, in full galaxy, to be made manifest to an admiring world.

All this while, an argument there was, by which, had there been any lips to urge it, this fine-spun web, with purity at top and corruption at bottom, might have been cut to pieces. If of the precious oil of corruption a widow’s cruise full, and that continually drawn upon, be so necessary as you have been persuading us to believe, why, by any such amount as proposed, or by any amount, seek to reduce it?

True: had there been any lips to urge it. But, that there were no such lips, was a fact of which he had sufficient reason to be assured: to urge it, probably enough, not so much as a single pair of lips:—to listen to it, most assuredly, not any sufficient number of ears: and where ears to listen and eyes to read are wanting, all the lips in the world to speak with, all the hands in the world to write, would, as was no secret to him, be of no use.

Thus, then, by the craft of the rhetorician, were a set of principles completely suited to his purpose—principles by a zealous application of which, anything in the way in question, howsoever pernicious, might be done—anything, however flagrantly pernicious defended—collected together as in a magazine ready for use: a magazine, too, the key of which was in his own pocket, and with an adequate assurance, that, on the part of no enemy whom he and his need care for, would any attempt ever be made to blow it up.

Suppose now the orator seated at the treasury board—the Marquis of Rockingham on the seat of the first lord, looking great and wise—the orator himself thinking and writing, and speaking and acting, in the character of secretary. Let him fill his own pockets, and those of his favourites and dependents, ever so rapidly, ever so profusely, no man can ever say to him, You have belied your principles: for, as will be seen, so long as there remained in the country so much as a penny that could be taken in a quiet way, his principles were such as would bear him out in taking it.

All this while, honourable gentlemen on the other side might have grumbled, and would of course have grumbled. Undeserved! undeserved! would have been the exclamation produced by every penny wasted. But Well-deserved! well-deserved! would be the counter-cry all the while: and, the ayes being in possession, the ayes would have it. Unprincipled! unprincipled! would be an interjection, from the utterance of which honourable gentlemen would, by their principles—their real principles—their operating principles—not their principles for show—but their principles for use—be on both sides alike (as lawyers say) estopped.

As to the principles thus relied upon by the orator, they will be seen to be all of them reducible to this one, viz. that as much of their property as, by force or fraud, or the usual mixture of both, the people can be brought to part with, shall come and continue to be at the disposal of him and his;—and that, for this purpose, the whole of it shall be and remain a perpetual fund of premiums, for him who on each occasion shall prove himself most expert at the use of those phrases by which the imaginations of men are fascinated, their passions inflamed, and their judgments bewildered and seduced; whereupon he—this orator—whose expertness in those arts being really superior to that of any man of his time (to which perhaps might be added, of any other time) could not but by himself be felt to be so, would in this perpetual wrestling-match or lottery—call it which you will—possess a fairer chance than could be possessed by any other adventurer, for bearing off some of the capital prizes.

SECTION II.

METHOD HERE PURSUED.

Thus much as to the purpose pursued by the orator in this part of his speech. A few words as to the course and method pursued in the view here given of it.

The passages to which the development of the principles in question stand consigned, are contained, most if not all of them, in that part of the speech which, in the edition that lies before me, occupies, out of the whole 95 pages, from 62 to part of 68 inclusive. This edition is the third—year in the title-page, 1780; being the year in which the bill was brought in; and, as between edition and edition, I know not of any difference.

My object is to present them to the reader in their genuine shape and colour, stripped of the tinsel and embroidery with which they are covered and disguised.

For this purpose, the course that happened to present itself to me was—dividing the text into its successive component and distinguishable parts,—to prefix to each such part a proposition of my own framing, designed to exhibit what to me seemed the true and naked interpretation of it. Next to this interpretation—that the best and only adequate means for forming a correct judgment on the correctness of it, may not in any instance be for a moment wanting to my reader—comes the correspondent passage of the text; viz. that passage in which, as appeared to me, the substance of the interpretation will be found to be more or less explicitly or implicitly contained.

Lastly follow in general a few observations, such as seemed in some way or other conducive to the purpose of illustration, and in particular as contributing, and in some instances by means of extraneous facts, to justify the preceding interpretation, and clear it of any suspicion of incorrectness to which at first view it might seem exposed.

In some instances, the truth of the interpretation will, I flatter myself, appear as soon as that portion of the text which immediately follows it has been read through; in other instances, two or three such extracts may require to have been read through, before the truth of the interpretation put upon the first of them has been fully proved: in others, again, this or that extraneous fact may to this same purpose seem requisite to be brought to view, as it has been accordingly, together with a few words of explanation or observation, without which the relevancy of the facts in question might not have been altogether manifest.

As to the order in which the propositions here succeed one another, should it present itself to the reader as differing in any respect from that by which a clearer view of the subject might have been exhibited, he will be pleased to recollect, that the order thus given to the effusions of the rhetorician, is the order given to them by himself; and that, by their being exhibited in this order of his own choosing, the thread of his argument is delivered unbroken, and the parts of it untransposed.

Having thus before him two sets of principles,—one of them, in the preceding part, suggested by a perfectly obscure—the other, in this present part, laid down by a transcendently illustrious hand,—the reader will take his choice.

SECTION III.

PROPOSITIONS DEDUCED FROM BURKE’S ECONOMY SPEECH.*

1.

Concerning Public Money—what the proper Uses of it. Propositions 1, 2, 3.

Proposition 1. On condition of employing, upon occasion, in conversation or elsewhere, the word reward, in phrases of a complexion such as the following; viz. “furnishing a permanent reward to public service,”† public money ought, at the pleasure of kings and ministers, to be habitually applied to the purpose of making the fortunes of individuals; and that in such manner as to raise their families to a state of grandeur and opulence.

Proposition 2. To this power of parcelling out the property of the public among the nominees of kings and ministers, there ought to be no limit: none to the quantity capable of being thus put into the hands of each nominee; none to the whole quantity of public property thus disposed of.

Proof. “Whoever (says he) seriously considers the excellent argument of Lord Somers in the banker’s case, will not he bottom himself upon the very same maxim which I do? and one of his principal grounds for the alienability of the domains in England, contrary to the maxim of the law in France, he lays in the constitutional policy of furnishing a reward to public service; of making that reward the origin of families, and the foundation of wealth as well as of honours.”

Then, to the word England, comes a note, which says, “before the statute of Queen Anne, which limited the alienation of land.”

OBSERVATIONS.

Proof. At the time of this excellent argument of Lord Somers,” (7th Will. III.) the whole of this domain was alienable; alienable to the utmost farthing; and, so faithfully and efficiently had it been applied to this its destined, and, as we are desired to persuade ourselves, properly destined, purpose, as to have brought the subject-matter of it to that state, of which a description may be given in the words of the existing committee on finance.*

“The right of the crown over its own demesne lands was formerly” say they, 3d Report, p. 127, “as complete as its power of conferring offices; and yet the use which was made of that part of its prerogative occasioned parliament frequently to interpose; and particularly, after the crown had been greatly impoverished, an act passed, whereby all future grants, for any longer term than thirty-one years, were declared void.”

“The misfortune,” continue they, “is, as Mr. Justice Blackstone remarks, that the act was made too late, after every valuable possession of the crown had been granted away for ever, or else upon very long leases.”

Such was the observation suggested by the case to Mr. Justice Blackstone; viz. that “it was made too late.”

But, according to the excellent argument of the excellent Lord Somers, it was made too soon; for the use of it—the “principal” use—at least if the excellent Mr. Burke is to be believed, was, in the conception entertained on the subject by the excellent Lord Somers, the supplying the requisite matter for this “constitutional policy” to operate upon;—viz. “the constitutional policy of furnishing a permanent reward to public service; of making that reward the origin of families, and the foundation of wealth as well as honours.”

Now, of this statute of Queen Anne (as far as it went) the effect was to counteract the “constitutional policy,” and render it, together with the excellent “maxim” on which the excellent law lord is said to have “bottomed himself,” incapable of being pursued; and, to a plain and un-law-learned understanding, they cannot both be good, viz. the policy and the statute: the policy by which the alienation of the property in question for that purpose was prescribed, and the statute by which the alienation of that same property, for that or any other purpose, was prohibited.†

Proposition 3. The progress of this revolution ought not to be stopped, till it has received its consummation as above described, i. e. so long as any part of the property of the public (understand of the people) remains unapplied to the purpose of giving effect to this “maxim” with its “constitutional policy;” viz. “the furnishing a permanent reward to public service; of making that reward the origin of families, and the foundation of wealth as well as honours.”

Proof. (Observations.) For, already, at the time of this excellent argument, had this quiet and gradual revolution made such progress, that within a trifle, the domain in question—a mass of property originally sufficient for the peace establishment of the country—had been thus disposed of.

There remained, it is true, and still remains, in part at least as yet undisposed of in the same unconstitutional way, the private property of individuals.

But a principle adequate to this purpose had already been established—established by the same or another provident set of hands—and, at the time of this excellent oration, still continued to be acted upon; yes, and still continues to be acted upon, under the eye and cognizance, and without censure from the above-mentioned existing committee, by which a diamond from this same excellent oration has, without acknowledgment, been picked out,—picked out and employed in giving additional lustre to the jewel for which we are indebted to their hands.*

SECTION IV.

CONCERNING TITLE TO REWARD.

Proposition 4. In the course of the disposition thus made of the whole property of government, with the growing addition of the whole property of the people, the plea of its having for its use and object the furnishing a reward to public service, ought never to be any other than a false pretence: at any rate, nothing ought ever to be done to prevent its being so.

Proof. (Observations.) Four modes of disposing of the public money, under the notion of reward for public service—extraordinary public service—all of them in frequent use, lay open to the rhetorician’s view:—1. Remuneration by act of parliament; 2. Allowance out of secret service money; 3. Pensions granted by the crown without concurrence of parliament; 4. Sinecure offices granted by the crown without concurrence of parliament.

In the case of remuneration by act of parliament, everything is open to view; everything is open to discussion:—1. The nature and reality of the service supposed to have been performed; 2. The part taken by the person in question, in the rendering of that service; 3. The importance of the whole service, and of the part taken by him in the rendering it; 4. The magnitude of the proposed reward.

In the case of remuneration out of secret service money, all these particulars are left in darkness; and in time of war, and thence at all other times (since there are none in which the approach or danger of war may not be imminent,) it being necessary that in the hands of the administration there should exist means of purchasing services, such as under any apprehension of disclosure would be unobtainable: hence a fund for this purpose ever has been, and ever ought to be, on foot.

In the case of pensions, some of the above four particulars are open to discussion: two of them, and two only, are open to view; viz. 1. The person on whom so much of that matter, viz. money, which is in use to be applied, and in this case is applied, to the purpose of remuneration, has been bestowed;—2. The quantity of that matter thus bestowed. What is not open to view is—whether it is under the notion of his having rendered any public service, that the money has been bestowed; much less whether such notion, supposing it really entertained, be in any degree just or no.

4. In the case of sinecures, he saw all these helps to misapplication having place, and, as compared with the case of pensions, acting in much greater force. In the case of a pension, what is bestowed constitutes a new article, put upon an already existing list: a list which, if not already public, is liable to become so at any time;—a list which, in the meantime, whether made known or not to the public, cannot but be kept constantly in view by various members of administration, if it were only lest the fund on which it is settled should be overloaded;—a list such, that no fresh article can ever be placed on it, without producing a fresh sensation, as constituting a manifest addition to the mass of public burthens; and in relation to which it is impossible but that to many persons the question must occur—on what grounds, and with what propriety, has this addition been made?

In the case of sinecures, not one of these spurs to attention had, in his view, any more than they have at present, any existence. Sinecure list, none: no, nor so much as a future possibility of making out any such thing, without a course of intricate inquiry, such as even now, in the fourth year of the sitting of a second finance committee, has not been completed. A sinecure office falling vacant, the vacancy is in case of this inefficient, as in the case of any efficient sort of office, filled up in course—filled up under no other impression than the general one, viz. that in the list of offices, as often as one name drops out, another must according to usage be put in the room of it.

In two different situations, he saw the same set of hands, viz. those of the servants of the crown, habitually employed in disposing of the property of the public, whether to the purpose, real or supposed, of remuneration, or to any other purpose. In two different situations, viz. out of parliament and in parliament: in parliament, since without their concurrence, even in parliament, no such power can, under the established rules, be exercised. Of this difference, what is now, what in his view could have been, the consequence? Disposed of in parliament, the money had never been disposed of, but that to the misapplication of it there had been some check, though how far from being so effectual a one as might be wished, is but too notorious. Disposed of out of parliament, as in the shape of a sinecure emolument, the misapplication of it had never experienced, nor in the nature of the case was capable of experiencing, any check whatever. It is in this shape that we see him defending it.

Of this state of things, the consequence was and is as obvious and natural as the existence of it is incontestable. When, at the expense of the people, on the ground of service rendered to the people, a case can, it is supposed, be made, be it ever so weak a one, recourse is had to parliament, and parliament is the hand by which the favour is bestowed. When no such case can be made—when the very mention of public service might be regarded as mockery and insult, when the annihilation of the precious matter thus bestowed would be a public blessing, a secret hand acting out of parliament, is the hand occupied in such service: windfalls are waited for, tellerships are bestowed.

Whatever you want in force of reason, make up in force of assertion. Whatever is wanting in merit, make up in eulogy. Maxims these, the use and value of which are perfectly understood by sophists of all classes.

Our rhetorician goes on: “It is indeed” (meaning by it the principle which prescribes the dividing the substance of the people—among great families, and families that are to be made great by such means)—“it is indeed the only genuine, unadulterated origin of nobility.” Peculation the only genuine and unadulterated origin of nobility! What a character of nobility!—what a plea for the House of Lords!—what a lesson to the people!

“It is,” continues he, “a great principle in government—a principle at the very foundation of the whole structure.” O yes! such a principle exactly as a running stream would be, running under the foundation of a structure erected on a quicksand.

SECTION V.

CONCERNING VIRTUOUS AMBITION, GRATITUDE, AND PIETY.

Propositions 5, 6, 7, 8.

Proposition 5. When ambition is virtuous, nothing but money is capable of acting with effect as an incitement to it: power in whatever shape—power of management—power of patronage; dignities, honours, reputation, respect—by whatever cause created, are all without effect.

Proof. “Indeed no man knows,” continues the rhetorician, “no man knows, when he cuts off the incitements” (“the incitements,” i. e. the sole incitements) “to a virtuous ambition, and the just rewards of public service, what infinite mischief he may do his country through all generations. Such saving to the public may be the worst mode of robbing it.”

“The incitements;” meaning those alone which are composed of money. For thereupon comes a panegyric on the virtue of money—an eulogium composed of a string of phrases, which in the commonplace book of a university poem-maker, might, if the subject of the poem were the virtues of money, perform the sort of service performed to genius in the bud in that useful manual called the Gradus ad Parnassum, under the head of synonyms or phrases.

“The means for the repose of public labour”—“The fixed settlement of acknowledged merit”—“A harbour into which the weather-beaten vessels of the state ought to come; a retreat from the malice of rivals, from the perfidy of political friends, and the inconstancy of the people.”

How pitiable, under this view of it, must be the condition of every man, who without a certainty of raising a family into overgrown opulence at the expense of the people, employs his time, or any part of it, in any branch, at least in any of the higher branches, of the public service!—of every member of parliament, at least (for to honourable gentlemen of this description do the regards of the rhetorician appear on this occasion to have confined themselves)—of every member of parliament who ventures his bark in any such stormy latitude, without the certainty of a “harbour” in the shape of an auditorship, or a cut-down tellership at least!

Storms and tempests, forsooth! Yes, such as we see on canvas at Covent Garden, and hope to see again at Drury Lane. Labour as severe almost as what is undergone on the cricket ground or at the card table, and standing about as much in need of remuneration at the expense of the people: labour such as, without receiving the value of a farthing from any hand that did not itself cheerfully take the money out of its own pocket, Mr. Gale Jones and his company would have undergone, and continued to undergo, if the Honourable House could have prevailed upon itself to suffer them: labour far short of that which on the same ocean the newspaper reporters were in the habit of undergoing, and if Mr. Yorke and his honourable and worthy nephew had suffered them, would have continued to undergo, without ceasing: and even (how “incomplete” soever, “and indeed wholly insufficient for that purpose,” “for that public service must” (as Mr. Burke says) “be those means of rewarding” that “public service”) yes, even without “further reward for that service than the daily wages received during pleasure:—daily labour beyond comparison more compulsory, more assiduous, more severe, than that which, besides so many contingent sweets, has present honour for a sweetening to it;—daily labour without pension of retreat, without provision for superannuation—provision, actual or eventual, for widows or mistresses, children or grandchildren, uncles or aunts, brothers or sisters, nephews or nieces; without power either of management or patronage—without either possession or prospect of honour, dignity, reputation, or respect, in any shape.

Proposition 6. So as the place be permanent, the hope of receiving it, how large soever the mass of emolument attached to it, “does not operate as corruption”—does not produce “dependence.”

Proof. “Many of the persons who in all times have filled the great offices of state, have,” says he, “been younger brothers, who had originally little, if any, fortune. There ought to be,” continues he, “some power in the crown of granting pensions out of the reach of its own caprices.”—Caprices! The hand by which the whole property of the people is thus to be disposed of, has it then its caprices? O yes, for the moment, and for the purpose of the argument. What is it that it may not happen to a thing to have or not have, for the purpose of the argument? “The entail of dependence,” continues he, “is a bad reward of merit.”

“I would therefore leave to the crown,” says he (viz. to the “caprices” of the crown) “the possibility of conferring some favours, which, whilst they are received as a reward, do not operate as corruption;—as if, to this purpose, call it a good, call it a bad one, a pension might not be made to operate with the same effect as a sinecure, both being equally for life.

Proposition 7. When a man is in parliament, whatsoever be the conduct of the servants of the crown, and whatsoever be the quantity of money he may gain or hope to gain by giving them his indiscriminating support, virtue requires that, to protect him against the charge of corruption, he be provided with the plea of gratitude; which plea pleaded, acquittal follows of course.

“When men receive obligations from the crown through the pious hands of a father, or of connexions as venerable as the paternal, the dependencies” (says he) “which arise from them are the obligations of gratitude, and not the fetters of servility. Such ties” (continues he) “originate in virtue, and they promote it.”

Proposition 8. When a man happens to have children, “piety” on his part consists in filling their pockets with public money.

Proof. The epithet “pious” applied with so much unction to paternal hands thus occupied.

Observations. In the wolf’s bible, piety would indeed naturally enough consist in providing lamb, as much as she could lay her paws upon, to feed her cubs with. But in the shepherd’s bible, at least the good shepherd’s bible, piety will probably be found rather to consist in keeping the lambs from being disposed of to such pious uses. The orator, though not a no-popery-man, was fond of his bible, and here we have a sample of the uses he was fond of making of it.

SECTION VI.

CONCERNING PARTY-MEN AND THEIR PRINCIPLES.

Propositions 9, 10.

Proposition 9. Men, who have at any time joined together in the way of party, ought not ever, any one of them, to differ from any other; nor therefore to act, any one of them, according to his own conception of what is right. Sinecures, if not absolutely necessary, are highly conducive at least, and thence proportionally useful, to the purpose of preventing all such differences.

Proof. “They” (“such ties” as above) “continue men” (says he) “in those habitudes of friendship, those political connexions, and those political principles” (we have seen what principle) “in which they began life. They are antidotes against a corrupt levity, instead of causes of it.”

Observations. Sinecures, according to this account of them, seem to be as necessary to secure fidelity at the expense of sincerity in parliament, as test oaths and subscriptions are to secure various good things, at the expense of reason or sincerity, there and elsewhere.

Two things here call for notice: the proposed end, and the proposed means. Proposed end; each man’s persevering in the principles (whatever is meant by principles) in the professions and habits, right or wrong, in which he “began life;” i. e. which it happened to him to have imbibed from the instructors under whom it had happened to him to be placed, and the society in which it had happened to him to have lived. Proposed means; his having got into his hands as much public money as his parents and other connexions could contrive to put into them by means of sinecures. Means and end, it must be acknowledged, are not ill matched.

Proposition 10. On a change of ministry, were it not for the sinecures, the comers-in would cut the throats of the goers-out; whereupon “the “sons” of the goers-out would “cringe” to the same comers-in (now ins) and “kiss their hands.”

Proof. “What an unseemly spectacle would it afford—what a disgrace would it be to the commonwealth that suffered such things, to see the hopeful son of a meritorious minister begging his bread at the door of that treasury from whence his father dispensed the happiness and glory of his country? Why should he be obliged to prostrate his honour, and to submit his principles at the levee of some proud favourite, shouldered and thrust aside by every impudent pretender, in the very spot where a few days before he saw himself adored?—obliged to cringe to the author of the calamities of his house, and to kiss the hands that are red with his father’s blood? No, Sir!—these things are unfit, they are intolerable.”

Observations. And so there are, it seems, such things as proud favourites. But if so, what sort of food is their pride fed upon? Sinecures? And if so, is not one of these proud favourites on every occasion a dangerous rival to the hopeful son of a meritorious minister? But the plan was—that there should be enough of them for everybody: and thus everything would be as it should be.

SECTION VII.

CONCERNING MINISTERS AND THEIR DUTY TO THEMSELVES.

Propositions 11, 12, 13, 14.

Proposition 11. The danger of a man’s being too bountiful to himself, when, in and by the adjudication of reward claimed on the ground of service said to have been rendered to the public, he is allowed to be judge in his own cause, affords no reason, at least no conclusive reason, against the allowing him to act in that character.

“As to abuse,” says he, “I am convinced, that very few trusts in the ordinary course of administration have admitted less abuse than this. Efficient ministers have been their own paymasters. It is true. But their very partiality has operated as a kind of justice; and still it was service that was paid. When we look over this Exchequer list, we find it filled with the descendants of the Walpoles, of the Pelhams, of the Townsends, names to whom this country owes its liberties, and to whom his Majesty owes his crown.* It was in one of those lines that the immense and envied employment he now holds, came to a certain Duke,” (“the Duke of Newcastle,” says a note) “whose dining-room is under the House of Commons, who is now probably sitting quietly at a very good dinner directly under us, and acting high life below stairs, whilst we his masters are filling our mouths with unsubstantial sounds, and talking of hungry economy over his head.”

For merited wealth and honour he declares his “respect:” “respect” which accompanies it “through all its descents, through all its transfers, and all its assignments.” In plain English, the object of his respect is wealth itself, whatever hands he sees it in. As for “original title,” and “first purchase,” and the epithet “merited,” prefixed to “wealth,” all this is for decency and delusion. For as to merited, the orator’s notions about merits have surely by this time become sufficiently apparent.

And as to title—what is it that on the subject of title, specific title, so much as asserted, not to speak of proved, he ever drops so much as a hint of his looking upon as requisite? No: with him, to the purpose of approbation, though without reason, as in a lawyer’s point of view, to the purpose of protection, for the best reason, possession of wealth, acquired at the public expense, is regarded as proof of title: and that proof not only presumptive and provisional, but conclusive.

As for transfer and assignment—wealth, sure enough, is transferable and assignable. But merit? is merit too a subject of bargain and sale? A manor? yes. But manners, those “manners” which, in the language of Edward the Third’s chancellor, “maketh man,” are these manners with an e, appendages and appurtenances that by the attraction of cohesion adhere to, and are rendered inseparable from, the manors with an o?

Wealth or power, wherever you see them, “prostrate” yourself before them: “cringe to” them, and though they be “red with” your “father’s blood,” “kiss the hands” that grasp them. This is what you are “obliged” to do: and that which is matter of obligation, how can it be matter of blame? Such are the precepts which call for the observance of that pupil whose preceptor is Edmund Burke.

After the predilection thus declared—pre-dilection for vicarious reward—in short, for anything that can afford to political rapacity a colour or a cloak to complete the system of corruption and tyranny, what more can be wanting than a like declaration in favour of vicarious punishment?

Observations. “But,” continues the orator, “he is the elder branch of an ancient and decayed house, joined to, and repaired by the reward of services done by another.” Thus far the orator.

“Done by another.” Yes, done by George the Second’s old favourite minister the Duke of Newcastle, whose culinary profusion and political inaptitude were alike proverbial—whose inefficiency the efficiency of the first Pitt had for such a length of time to struggle with—and whose services consisted in the sacrifice made of his patrimony to his palate and his pride.

“I respect,” continues the rhetorician, “the original title, and the first purchase of merited wealth and honour through all its descents, through all its transfers, and all its assignments. May such fountains never be dried up!—may they ever flow with their original purity, and fructify the commonwealth for ages!”

May such fountains never be dried up! exclaims the ejaculation, poured forth with fervency, with almost the solemnity, and with at least the sincerity, of a prayer. “May such fountains never be dried up!”—as if he had not all this while in full view a fountain of this sort, the patrimony of the crown, all but dried up, and that almost a century before the utterance of this prayer: as if anything could operate more speedily, or more effectually, towards the drying up of all such fountains, than the acting up to those laws of profusion, to the keeping of which it was the object of this prayer to incline men’s hearts.

Proposition 12. If it be admitted that the masses of emolument, respectively attached to the great efficient offices, are not excessive, this admission will be sufficient to justify the possessors of them in putting into their pockets additional masses of emolument to an unlimited amount, on condition of creating or keeping on foot inefficient offices, to which such additional masses of emolument shall respectively stand attached.

Proof. “If I were to give judgment,” says he, “with regard to this country, I do not think the great offices of the state to be overpaid. When the proportion between reward and service,” resumes he, “is our object, we must always consider of what nature the service is, and what sort of men they are, who are to perform it. What is just payment for one kind of labour, and full encouragement for one kind of talents, is fraud and discouragement to others.”

Observations. True enough. But what is it to the purpose? and what is it that it amounts to? and what is it that by volumes of phrases thus floating in the air would be proved?

“Not overpaid.” For the purpose of the argument, let it pass.

“Not overpaid!” Admitted. But does it follow that they are underpaid? £4000 a-year, or £6000 a-year, not excessive? Good: but does it follow that £23,000 a-year, or that £38,000 a-year, must be added?

Proposition 13. To justify the leaving to the possessors of public offices, in an unlimited number, the power of putting each into his own pocket, and into the pockets of his relatives, and friends, and dependents, and their respective descendents, such supplemental masses of emolument, each to an unlimited amount, it is sufficient to point out one office and one class of offices, which present a reasonable claim to larger masses of emolument than what are attached to the rest.

Proof. “Many of the great officers have much duty to do, and much expense to maintain.

“A secretary of state, for instance, must not appear sordid in the eyes of ministers of other nations.

“Neither ought our ministers abroad to appear contemptible in the courts where they reside.

“In all offices of duty,” continues he, “there is almost necessarily a great neglect of all domestic affairs. A person in high office can rarely take a view of his family-house. If he sees that the state takes no detriment, the state must see that his affairs should take as little.”

Proposition 14. In the case of a real efficient office, no mass of emolument which either is or can be attached to it, ever is or ever can be too great.

Proofs. “I am not,” says he, “possessed of an exact measure between real service and its reward.”

“I am,” continues he, “very sure that states do sometimes receive services, which it is hardly in their power to reward according to their worth.”

“I do not,” continues he, “think the great efficient officers of the state to be overpaid:” he, Edmund Burke, who in so many words has just been saying, “If I knew of any real efficient office which did possess exorbitant emoluments I should be extremely desirous of reducing them. Others,” continues he, “may know of them. I do not.”

Observations. Of the sincerity of this declaration, no question need be made. If so it had been, that any such office, “possessingemoluments,” which in his eyes were “exorbitant,” had been known to him, a “desire,” and that an “extreme” one, “of reducing” those exorbitant emoluments would have been the result of such knowledge. But in his eyes no such emoluments could be exorbitant. Therefore, in his breast the formation of such desire must, notwithstanding the extreme desire he could not but have had to form such a desire, have been impossible.

At that moment, and for the purpose of the argument, such was the ignorance of Edmund Burke that he “was not possessed of,” i. e. he knew not of, “an exact common measure between real service and its reward.” But except Edmund Burke, no man is thus ignorant, any more than Edmund Burke himself could be at any other time than that in which such ignorance had its convenience.

Between “real service and its reward,” the exact common measure is the least quantity of the matter of reward that he who is able to render the service consents to take in return for it. This is the measure of all prices: this is the measure of the value of all good things that are at once valuable and tangible. This is the measure of the value of all labour, by which things tangible are produced: as also of all labour by which, though nothing tangible is produced, valuable service in some other shape is rendered. This was the common measure, by which the exact value had been assigned to the coat he had on his back. This was the exact common measure of the value of those real services which had been rendered him by the person or persons by whom his coat had by means of one kind of brush, and his shoes by means of two others, been qualified for their attendance on the lips, by which this brilliant bubble was blown out.

But (says the sophist, or some disciple for him) there is no analogy (says he) between the service rendered to the public by a minister of state, and the service rendered to one individual, by another individual, who removes extraneous matter from his coat, or puts a polish upon his shoes.

O yes, there is—and, to the purpose here in question, analogy quite sufficient:—

1. They stand upon the same ground (the two services) in point of economy. There is no more economy in paying £38,000 a-year for the wearer of the coat, if he can be had for nothing, than in paying £20 for a coat itself, if it can be had for £10.

For the wearer of the coat—I mean, of course, for his services: his services—I mean his services to the public, if so it be that he be capable of rendering any.

But the misfortune is, that when once the “reward for service” has swelled to any such pitch, any question about the service itself—what is it? what does it consist in? who is it that is to render it? what desire, or what means, has he of rendering it? of rendering to the public that sort of service, or any sort of service? Any question of this sort becomes a joke.

Where sinecures, and those “high situations” in which they have now and then become the subjects of conversation among “great characters,” are taken for the subject of conversation among little characters in their low situations, questions and answers are apt to become giddy, and to turn round in a circle. What are sinecures of £38,000 a-year good for?—to maintain the sinecurists. What are the sinecurists good for?—to maintain the sinecures. Thus on profane ground. Thus again, on sacred ground:—What are bishopricks good for?—to support bishops. What are bishops good for?—to support bishopricks.

2. So again, as to probability of efficiency, and meritoriousness on the part of the service. Competition—preference given to the best bidder among candidates bidding upon each other, under the spur applied by that incentive—competition, affords, in the instance of the party chosen, a better chance of fitness for the office and its services, than will in general be afforded by preference given, either without a thought about fitness for the service, or about merit in any other shape, or with thoughts confined to such merit of which parliament is the only theatre, and in the composition of which, obsequiousness is the principal ingredient, and that an indispensable one. But of this proposition the truth, it is hoped, has been rendered sufficiently apparent elsewhere.*

SECTION VIII.

CONCERNING GRATUITOUS SERVICE, AND THE PROFLIGACY INVOLVED IN IT.

Propositions 15, 16.

Proposition 15.— If a man were to decline receiving at the public expense, money which it were in his power to receive without danger either of punishment or of disgrace, it would be a conclusive proof that his designs were to endeavour to filch money from the public, in some mode that would subject him to danger in one or other of the two shapes, or in both.

Proof. “I will even go so far,” says he, p. 67, “as to affirm, that if men were willing to serve in such situations” (viz. offices of duty, “all offices of duty,” p. 66) “without salary, they ought not to be permitted to do it. Ordinary service must be secured by the motives to ordinary integrity. I do not hesitate to say, that that state which lays its foundation in rare and heroic virtues, will be sure to have its superstructure in the basest profligacy and corruption. An honourable and fair profit is the best security against avarice and rapacity; as in all things else, a lawful and regulated enjoyment is the best security against debauchery and excess.”

Observations.—“If men were willing to serve in such situations without salary, they ought not,” says he, “to be permitted to do it.” Here we have the theory—the waste-and-corruption-defending sophist’s theory. What says experience? In Part I.* of this tract may be seen a list, nor that yet a complete one, of men of various classes serving in such situations; and not merely without salary, but without neat emolument in any shape: and as for the not permitting them to do so, whether in such non-permission, in whatsoever manner effected, whether by prohibition or otherwise, there would be any, and what use, let the reader, if any such there be, on whom this rhapsody has passed for reason or for reasoning, learn from it, if he be able.

“Ordinary services,” says the orator, “must be secured by the motives to ordinary integrity.” In Part I.* the reader, it is hoped, has already seen, that for the securing of ordinary service, to furnish any motive whatever is not in the nature of salary: that in so far as ordinary service comes to be rendered, it is by apprehension of eventual punishment that it is produced—that all that by salary can ever be done towards the production of it, is by engaging a man to subject himself to such eventual punishment; and that, if so it be, that without salary he is content to subject himself to such eventual punishment, the service (it being ordinary service) is not merely as likely, but more likely, to be produced without salary than with it.

“That state which lays its foundation in rare and heroic virtues,” says the orator, meaning (for there is nothing else to which the word “virtues” can have any application) the disposition manifested by him who “without salary is willing to serve in such situations.” Now, in a disposition of that sort, though there be great use, there is nothing that can bear the name of virtue. For (as is sufficiently proved by every morsel a man puts into his mouth, and every draught or sip he takes) so it is, that out of mere utility, even though it rise to the height of absolute necessity, no such thing as virtue can be made. Not that in these “situations,” or any of them, whether “served in,” “with or without salary,” virtue rising even to heroism may not perhaps by accident be displayed: but any such accidental display is quite another business.

Now, if even by actual service in such situations, no “virtue” at all is displayed, or, by the man himself, who thus serves, is so much as conceived to be displayed, whether in the mere willingness so to serve there be any room for “rare or heroic virtue,” may be left to any reasonable person to pronounce.

Proposition 16. In any office of duty, “to be willing to serve without salary,” is to pretend to “rare and heroic virtue,” and is a “sure” indication of “the basest profligacy and corruption.”

Proof. “In all offices of duty,” says he, p. 66, “there is almost necessarily a great neglect of all domestic affairs. A person in high office can rarely take a view of his family house.”—“I will even go so far as to affirm,” continues he, p. 67, “that if men were willing to serve in such situations without salary, they ought not to be permitted to do it. I do not hesitate to say,” continues he, “that that state which lays its foundation in rare and heroic virtues will be sure to have its superstructure in the basest profligacy and corruption.”

Observations. In Part I. of this publication* may be seen a list, though by no means a complete one, of offices “willingly served,” not only without salary, but even without emolument; as also a list of others, by and for the obtainment of which, men are found who are willing to be out of pocket.

Observations. The office of Member of the House of Commons—the office of delegate of the people in parliament—is that, or is it not, in the number of his “offices of duty?” Is that, or is it not, in the number of his “high offices?” Members of the House of Commons as such—the members of the House of Commons taken together—have they not, in conjunction with their duty, more power than the members of administration taken together? In the members of the House of Commons taken together, do not the members of administration taken together, behold their judges, to whom, for their conduct as such, they are continually accountable, and by whom, under the form of an address to the king, they are in effect displaceable? This assertion, then, to the absurdity of which men are to be made to shut their eyes, by the violence, the unhesitating and audacious violence, with which it is endeavoured to be driven down their throats—try it, try it in the first place upon the members of the House of Commons.

A member of the House of Commons, who, in that his office, “is willing to serve without salary, ought not to be permitted to do it.” Whoever does serve on any such terms, is a most “base and corrupt profligate.”

From this charge of base and corrupt profligacy, having for its proof the fact of a man’s performing public duty without salary, the impossibility of obtaining any portion of this his specific against corruption may, it is hoped, according to the orator’s system, serve in the character of an extenuation, in a case where the inability is real and unaffected.

But, within the compass of his knowledge, what man, public or private, can be at any loss to find public men—men of distinguished talents—men even of distinguished eloquence—who in that very station have served, and for a long-continued course of years, with as much assiduity as it is possible for men to bestow, even for and with the most overflowing measure of reward?—serving and toiling with an assiduity equal to that of the most assiduous minister all the time, yet without factitious reward in any shape—all the time having at command rewards to the highest amount, and even at the public expense?

Of these base and corrupt profligates, as Edmund Burke called them, and would have persuaded us to think them, I had even began a list—none of them unknown even to Edmund Burke—when I was stopped at once by a concurring cluster of considerations: the personality of the detail, my own incompetency for it, the room it would have occupied, and, as it seemed to me, the superfluity of it.

As between individual and individual, that without expectation of money or money’s worth, in any shape, in return, it may not happen to an individual to render a service to another—nay, even to persevere as towards him in a course of service of any length and degree of constancy, and this, too, without any sort of prejudice to probity, not to speak of base and corrupt profligacy, is surely more than any man, even the orator himself, was ever heard to assert: why not then to the public at large—to that all comprehensive body, of which individuals taken together are component parts?

For the labour or the self-denial necessary to the rendering the service to the individual, pure sympathy, pure of all self-regarding considerations, is frequently the sole, and being at the same time the efficacious, is thereby the self-sufficient motive. But when the public is the party to whom the service is rendered; in this case, in addition to whatsoever emotion of sympathy is called forth by the contemplation of the welfare of this aggregate body, in aid of that purely social spring of action, comes the prospect of gratification to the self-regarding affection—love of reputation, accompanied or not with the love of that power, which, whether put to use or not, reputation brings with her in her hand.

Besides the shape in which he would receive payment for the service, if no more than a single individual were the better for it, he who renders service to the public receives, or at least may not unreasonably expect to receive, payment for it, in those two other shapes besides. Yet, in the eyes of the orator, if he is to be believed, so unnatural and incredible is the disposition to be on any occasion content with this treble payment, that should any such disposition find any man to manifest it, what the orator is quite “sure” of, and insists upon our believing, is, that that man belongs to the list of “base and corrupt profligates.” Such is his sincerity, or such his knowledge of human nature.

After an answer thus conclusive, it may be matter of doubt, whether the inanity of the arguments, considered with reference to the state of things the orator saw at that time before him, be worth touching upon.

As in a magic lantern, the scene shifts every moment under his hands. On the occasion in question, to be of any considerable use, the view taken, it was necessary, should embrace the whole field of official emolument—the whole field of office. So, in his hands, but a page or two before, it accordingly did. Now, and without warning, the extent of it is shrunk, perhaps to that of half a dozen offices, perhaps to that of a single office. To a single office confined it must be—to a single office, viz. that of the chief minister, if, of the plan of hypocrisy he speaks of, the sort of despotism he speaks of is, in case of success, to be the consequence.

“Unfair advantage to ostentatious ambition over unpretending service,”—“invidious comparisons,”—“destruction of whatever little unity and agreement may be found among ministers:”—all these words, what is it they amount to?—words, and nothing more.

Realized they might be—all these supposed disasters; and still, on the part of the people, the question might be—what then? what is all that to us?—how is it that we should be the worse for it?

1. Says A, I don’t want all this money. Says B, I do. Here the thing which A is ambitious of is power, and power only: the thing coveted by B is the same power, with the money into the bargain. On the part of A, where now is the ostentation, where the ambition, more than on the part of B: and, if there were, where would be the specific mischief of it in any tangible shape?

2.Invidious comparisons! What is choice without comparison? And if invidious meant anything, where is the comparison, which being made for the purpose of choice, is not invidious? What is parliamentary debate—what is any debate, but a topic of invidious comparisons?

3.Destruction of unity and agreement among ministers! According to circumstances, such destruction is either a misfortune or a blessing. Misfortune to be sure it is, and nothing else, with reference to the ten or a dozen persons spoken of: but with reference to the people and their interests, a “destruction” of this sort is perhaps the most efficient, though it be but a casual, check upon misrule. In case of that system of misconduct, which it is so constantly their interest, and almost constantly in their power to persevere in, it affords the only chance—of punishment it cannot be said; for of that never, for this last half century, has there been any chance,—but of exposure. And in this character, the people, thanks to able instructors, begin to be not altogether insensible to its value.

But a government in the quondam Venetian style—a government in which, under the guidance of upstart Machiavelism, titled and confederated imbecility should lord it over king and people, and behind the screen of secresy, waste, oppression, and peculation, should find themselves for ever at their ease; such was the Utopia of Edmund Burke.

To dispose men, if it be possible, to distinguish from solid argument, empty froth, such as this of Edmund Burke’s—to distinguish it, and, whenever found, to cast it forth from them with the scorn which is its due, such has been the object; such, if they have had any, has been the use, of these four or five last paragraphs.

SECTION IX.

A PROPHECY, AND BY BURKE—THE KING WILL SWALLOW UP THE WHOLE SUBSTANCE OF THE PEOPLE.

Proposition 17. The King, with the advice and consent of Lords and Commons, will “infallibly,” one of these days, possess himself of the whole property of the country.

Proof. “For,” says he, p. 67, “as wealth is power, so all power will infallibly draw wealth to itself by some means or other: and when men are left no way of ascertaining their profits but by their means of obtaining them, those means,” (continues he, but the argument, it will be seen, required him to say, those “profits”) “will be increased to infinity. This is true,” continues he, “in all the parts of administration, as well as in the whole.”

Observations. Of these doctrines—I mean of the exposure thus made of them—the use is, to show what extravagances imagination is apt to launch into, where, to bring down an ignis fatuus for the defence of an indefensible proposition, it mounts without rudder or compass into the region of vague and aërial generalities.

The result, to any such extent as that in which, for the purpose of the moment, the sophist tried, or pretended, to regard it as infallible, is as far, let us hope, from being in any degree a probable one, as at another time he would have been from speaking of it as such.

In the situation of chief minister, or in any other situation, if, by means of an artifice, which, long before it had travelled any considerable length in the tract of success, must have become transparent and visible to the whole people, it depended upon a single individual to possess himself of the whole “power,” and by means of it, the whole “wealth” of the country, what is it that should have prevented this conquest of the whole wealth from having been achieved—achieved ages ago, by those who have had the whole power in their hands?

To the power, that exists in the hands of the members of the sovereignty as such—to this power is to be ascribed, as to its cause, the aggregate mass of the several portions of the matter of wealth, which, in their individual capacities, are at any given point of time respectively possessed by them. To the power itself there are not any legal limits: there ought not to be any. But to the aggregate mass of wealth actually possessed by them, how excessive soever, limits there always are: limits comparatively narrow: and, at all times, seeing what that mass is, we see what those limits are. The King, with the advice and consent of the Lords and Commons, might, if such were his pleasure, might, viz. by act of parliament, take into his hands the whole wealth of the country, and share it between himself and them. Nothing could be more correctly lawful: but, as few things would be more manifestly inexpedient, it is what never has been done, and what nobody, sane or insane, is afraid of seeing done.

Not but that the advances made towards this point of consummation have been somewhat nearer than could have been wished: and in this way, as in every other, in the eyes of those who profit by what is wrong, “whatever is, is right:” yes, and not only right, but necessary.

But of the necessity where lies the proof? Here, as elsewhere, it lies in the existence of the practice: which, where the thing to be proved is the necessity of that same practice, is, according to the logic of practical men, proof abundantly sufficient.

Pressing on the people with so heavy a pressure as this vast portion of their burthen does, on what ground is it that it is concluded to be, to wit, in the whole of it, necessary? On this ground, viz. that it is—that in the whole of it, it is—customary. And how came it to be customary? Because those whose interest it was to make it as great as possible, as great as the people would endure to see it made, found they had power, and without preponderant inconvenience, in the shape of danger to themselves, viz. from discontent on the part of the people, to make it what it is.

This power—the word power being here taken in the practical sense—is all that, to the purpose here in question, has ever been attended to. As to need, demand in respect of public utility—of that utility which is such with reference to the interest of the whole people—need or necessity in this sense, never is—never has been—felt to be worth a thought.

As to all those things, in respect to which it is the interest of rulers that the mode of government should be bad, it of course always has been and of course always will be, as bad as, in their judgment, the people will quietly endure to see it.

This economy bill of Edmund Burke, for example, was it produced by virtue, by public spirit, on the part of Edmund Burke? No: nor so much as by policy alone—if by policy be meant any spontaneous policy on his part, how personal soever and pure of public spirit. Towards the production of this measure, such as it is, prudence, meaning apprehension of nearer inconvenience, howsoever assisted by policy, meaning hope of more or less distant power, with its concomitant sweets, operated, and with no small force, as it should seem, on his mind. The proof is in certain petitions which he speaks of.

As to these “petitions,” they are such as could not have been all of them of his calling forth, at least not all of them of his dictating, since some of them were troublesome to him. Amongst the things called for by them was, in the instance of several of them, the thing which in this place is more particularly in question, viz. “the reduction of exorbitant emoluments to efficient offices.” This, though spoken of by him as an article, “which seems to be a specific object in several of the petitions,” is an object with which he expressly declares himself “not able to intermeddle.”*

SECTION X.

GRATUITOUS SERVICE, BURKE’S OBJECTIONS TO IT REPUTED.—NECKER.—BURKE’S EAST-INDIA BILL.

The orator continues—“If any individual were to decline his appointments, it might,” continues he, p 67, “give an unfair advantage to ostentatious ambition over unpretending service; might breed invidious comparisons; it might tend to destroy whatever little unity and agreement may be found among ministers. And, after all, when an ambitious man had run down his competitors by a fallacious show of disinterestedness, and fixed himself in power by that means, what security is there that he would not change his course, and claim as an indemnity ten times more than he has given up?”

To these arguments, such as they are, against gratuitous service, my answer, so far as regards the plan above alluded to, is a simple and decisive one. To the plan of adequate salary, coupled with sale so far as applicable, for the account of the public, with the benefit of competition they have not, any of them, any application. For “ostentation,” under that plan there is no room: the retrenchment, whatever it may amount to, being to all competitors matter of necessity—to none more than another, matter of choice: and if it be in this ostentation that the two other alleged mischiefs, whatever they may be, meant to be denoted by the words “invidious comparison,” and “destruction of unity,” have their supposed source, the ostentation being out of the case, so will these other supposed mischiefs be likewise.

Here (to speak in his own words) there would be no such “declining”—no such “unfair advantage”—no such peculiarly “invidious comparison”—no such mischievous “destruction of unity and agreement”—no such “running down of competitors” (for one and the same call would be given to all competitors)—no such “self-fixation” of one man alone “in power,” and by means peculiar to himself.

And after all,” continues he, as above, “and after all, when an ambitious man had run down his competitors by a fallacious show of disinterestedness, and fixed himself in power by that means, what security is there that he would not change his course, and claim as an indemnity more than he has given up?”

Gratuitous official service—and, under the name of gratuitous official service, reduction of official emolument being the object still contended against, here we have a quite new argument. Till now, it was in other shapes, though indeed in all manner of shapes other than that of frugality, that, in case of any such reduction, the service was to suffer: now it is in the shape even of frugality itself. Whatsoever a man (the sort of man in question) gives up in appearance, in reality (says our sophist) he will take to himself “ten times more.”

To the above proposed plan of retrenchment, the objection, such as it is, has not, it must have been seen already, and for the reasons already given, any the slightest application. But even with reference to the then existing state of things, what could be more extravagant?

On the part of the orator, suppose on this occasion any the smallest particle of thought, and at the same time of sincerity, what must have been the opinion entertained by him of the state of government in this country, and how profound at the same time his indifference to it? The state of government such, that on so easy a condition as the giving up a mass of lawful emolument for a time, a man might make sure of gaining, in the way of “base profligacy and corruption,” ten times “as much” in the long run! and this sort of speculation, promising and feasible enough, not only to be worth guarding against, but to be necessary to be guarded against, and that at such an expense as that of making an all-comprehensive addition to the mass of official emolument! and this too an addition without bounds!

Oh no! (cries the orator) not make sure—those were no words of mine: “claim” was my word,—“claim,” and nothing more. Oh yes, Mr. Orator, “claim” was indeed the word you used; but make sure was the idea it was your object to convey by it: for, sure enough, where public money is the subject, it is only by what a man gets, and not by what he claims, and without getting it, that any mischief can be done.

In writing, no man ever weighed his words in nicer scales; no author ever blotted more, to find, for each occasion, a set of words that shall comprehend two meanings—one for attack, another in case of necessity for retreat and self-defence; such throughout is the study of the rhetorician, whom devotion to a party reduced to that species and degree of servitude, with which sincerity is incompatible.—In this sinister art, no man ever laboured more—no man surely ever made a greater proficiency—no man, one may venture to say, ever made so great a proficiency, as this Edmund Burke.

Here we have a picture (shall we say?) or a plan of Machiavelism, sketched out by his own hand. In itself it is but a loose sketch, for by anything like a complete and correct draught, too much would have been brought to view. But in its exact shape, no small part, and in outline the whole, was already in his own breast. Nor, so far as concerned his own portrait, was it from fancy, but from the looking-glass, that he drew.

The treasury bench—the castle of misrule—stood before him. Sham-economy, an instrument of “Young Ambition,” the ladder by which it was to be scaled. Already the ladder was in his hand. A bill for “independence” and so forth—and for “economical reformation” and so forth—was the name—the wordy name—he had found for it.

At the end of a long contest, the ladder performed its service. But when the fortress was in his hands, a buttress was deemed necessary to enable him to maintain his ground. The buttress fell, and he in it, and along with it; the buttress fell, and great was the fall thereof.

And what was this buttress? Few readers can be at a loss for it.

Four years after, when under the pressure of the mass of corruption, in the hands of the secret advisers of the [Editor: illegible word] they betook themselves for relief, he and his party, not to the legitimate influence of the people, as it would have been manifested in an equalized representation, accompanied with the exclusion of dependent votes, but to a counter-mass of corruption, to be drawn from the East Indies—it was to the “fallacious show of disinterestedness” made by this his Economy Bill, already carried and turned into an act, that he trusted for that blind support, which he had looked for at the hands of a supposed blinded people. The result is known to everybody.

As to the picture we here see him drawing, it was, at the time of his thus drawing it, half history, half prophecy: the prophetic part left unfinished, as everything in the shape of prophecy must necessarily be.

The picture dramatized, the characters and other objects in it might stand as follows:—

1. “Ambitious man,” Edmund Burke.

2. “Fallacious show of disinterestedness:” the show made by this economy bill of his, with the inconsiderable retrenchments (£60,000 a-year, or some such matter) effected by it.

3. “Competitors run down” by means of it (in addition to the force derived from other sources, such as the unpopularity and ill success of the American war, together with the exertions of arbitrary vengeance in the case of Wilkes, &c.) Lord North and his ministry then in power, with the secret advisers of the crown for their support.

4. Instrument attempted to be made for the “fixing himself in power,” Burke’s East India bill: a steadiment, containing in it a sort of pump, contrived for drawing from the East Indies the matter of wealth, to be applied in the character of matter of corruption, by hands of his own choice, to the purpose of engaging a sufficient number of workmen for the fixing him and his party as above, to wit, with such a force of resistance as it should not be in the power of the secret advisers of the crown, with all the assistance they could get from the people, to overcome.

As to the particular “course,” which, for the purpose of reaping the fruits of his conquest, had this machinery of his succeeded, it might have happened to him to take, and with the word indemnity in his mouth, the quantity of public money he might have claimed,—so it is, that his grand instrument of steadiment and “fixation” having failed, all these, together with so many other quondam future contingencies, remain in darkness inscrutable. But, supposing the indemnity no more than “ten times” the amount of the sacrifice, still would it have fallen short, as anybody may see, of the ground prepared for it by this his speech.

Some years after, viz. about the year 1790, a decent quantity of public money, even though not in office, he did contrive to get: but forasmuch as for this donation there was a pretence made out of a pamphlet, with the help of which the embers of war between Britain and France were blown into a flame, and, for security against anarchy, the good people of Great Britain driven, as far as by his pious endeavours they could be driven, into the arms of despotism, so it was, that the bread of sinecure—the sacred shew-bread, destined and appropriated to the chief priests of the temple of corruption—was not, any part of it, profaned and diverted to this use: reward in the ordinary shape of pension being regarded as applicable to, and sufficient for, this ordinary service.*

SECTION XI.

BURKE’S OBJECTION TO THE APPLICATION OF THE PRINCIPLE OF COMPETITION TO THIS PURPOSE—ITS FRIVOLOUSNESS.

After denying that the great efficient offices are overpaid, “The service of the public.” continues he, “is a thing which cannot be put to auction, and struck down to those who will agree to execute it the cheapest.”

Cannot! Why cannot it? Upon the face of it, the proposition bears not so much as the colour of reason; nor in the sequel is either substance or colour so much as attempted to be found for it. Of possibility, what is the sort of evidence that in this case he would require? Would fact have been regarded as admissible? “The service of the public is a thing which,” a year afterwards, after the orator had been in, and out again, Pitt the Second did “put up to auction”—“did strike down to those who would agree to execute it the cheapest:” and this to such an extent, that, in comparison of the saving thereby effected, whether money or improbity be the article considered, the utmost saving so much as projected by this our sham-reformer, shrinks into insignificance.†

This, it is true, the pseudo-reformer had not as yet witnessed. But there was nothing in it that was not in the most perfect degree obvious: what difficulty there was in the business consisted not in the thinking of it, but in the doing of it.

But what the sophist trusted to was the word auction, and the sentiment of ridicule which, if applied to the subject in question, he hoped to find prepared for the reception of it in men’s minds. Mention the word auction, the image you present is that of a man with a smirk upon his countenance, mounted on the burlesque of a pulpit, with a wooden hammer in his hand, expatiating upon the virtues—sometimes of statues and pictures—sometimes of chairs and tables.

The hyperboles employed by orators of that class, while expatiating on the virtues of the vendible commodities consigned to their disposal, are, as he in common with everybody else must have remarked every now and then, such as, while in some parts of the audience they produce the desired impression, excite in the minds of others the idea of the ridiculous.

But no panegyric that was ever bestowed by any such orator, on the picture or the screen of a marquis or a duke, had more of exaggeration in it than the pictures which this vender of puffs was so expert at drawing, naming them after this or that one of his most noble patrons and originals. His piece of still life, called the Marquis of Rockingham—his Duke of Portland, into the picture of which a Kneller or a Reynolds would have put more thought than nature and art together had been able to force into the original—that original whose closest resemblance to a picture that had thought in it was the property of being vendible—that puppet, whose wires, after playing for a time so easy, ran rusty at last under the hand of Mr. Canning—viewed through the raree-show glass of Edmund Burke, these and so many other “great characters” appear no less fit for their “high situations” than the counsellors of King Solomon, when, with Punch for their interpreter, on the drawing up of the curtain, they are displayed in the act of paying tributes of wisdom to the wise.

Competition.—This word would not, as auction so well did, serve the sophist’s purpose. To the word competition no smirk stands associated—no pulpit—no hammer:—competition—a power, the virtues of which had already been so well displayed by Adam Smith, not to speak of Sir James Stewart: in competition he beheld that security against waste and corruption which would have been mortal to his views.

SECTION XII.

CONCLUDING OBSERVATIONS.—BURKE, WHY THUS EXAMINED.

Erasmus wrote an eulogium on folly: but Erasmus was in jest: Edmund Burke wrote an eulogium—he wrote this eulogium—on peculation:—and Edmund Burke was serious.

In thus exhibiting the orator in one of those fits of extravagance to which he was but too subject—in exhibiting the orator’s own figure, according to the monstrous caricature we have seen him drawing of himself, viz. that of a man, in whose estimation nothing but money has any value—a man by whom all breasts that have anything in them that is not sordid, are to be marked out as fit objects of abhorrence,—let me not be accused of wasting time and paper.

It is out of this his book—meaning always such parts of it as are found suitable, that our statesmen of the present day may be seen taking their lessons. It is out of this his garden of sweet flowers, that the still existing finance committee—and without acknowledgment—have culled, as we have seen, a chaplet wherewith to decorate their brows. It is in this his school, that, by another right honourable teacher of economy, those maxims have certainly been found, and to all appearance learnt, which we shall come to presently.

Had the purpose of his argument, or of his life, required it—here, in this very place, instead of declaiming and writing for money, and trying to persuade men that nothing but money is of any value, the orator might, and naturally would, have declared against money,—shown in the way that so many other declaimers have shown, that it is of no value, that it is even worse than useless, and that, without “the basest profligacy and corruption,” no man—no public man at least—can ever get, or try to get, any of it.

In exaggerations, improbity or folly may behold a use on either side; but to common honesty, nothing is here needful but common sense.

Money is a good thing—a very good thing indeed: and, if it were not a good thing, scarce would anything else be; for there are few good things which a man may not get by means of it—get, either in exchange for it, or (what is still better) even without parting with it.

But the misfortune is, that from us the people, for paying orators of the class of Edmund Burke, it is not to be had without our being forced to part with it: and if the orator suffer in case of his not having it—in case of his never having got so much of it as he could have wished, we the people, who, after having had it, find ourselves, for the use and benefit of the orator, forced to part with it, suffer still more.

Thence it is, that if there be anything else, which, the people not feeling themselves forced to part with it, the orator can persuade himself to be satisfied with, so much the better. Upon this plan, everybody is satisfied—orator and people both: whereas, upon the orator’s plan, only one of the parties is satisfied, viz. the orator—the orator, who is the agent and spokesman of the ruling few; while the other party, viz. we the people, are suffering and grumbling, and as it should seem not altogether without reason; for we are the many; and in our number consists our title to regard: a very unpretending title, but not the less a good and sufficient one.

PAPER VI.—

DEFENCE OF ECONOMY

AGAINST THE RIGHT HONOURABLE GEORGE ROSE.

first published in 1817.

ADVERTISEMENT.

While committing to the press so free an examination as this will be found to be, of Mr. Rose’s declared principles, as published by him on the subject of public expenditure, there would, as it strikes me, be something ungenerous at least, if not unjust, in the omission, were I not to make acknowledgment, as, without any communication, direct or indirect, with the right honourable gentleman, I hereby do, of such proofs of due regard for economy as by incidents falling exclusively within my own observation have been furnished by his practice. Of the measures alluded to—two in number—both were in a very considerable degree important: one of them, in respect of extent as well as difficulty, pre-eminently so: and, on both occasions, in his instance as well as that of Mr. Pitt, by such tokens, as in the nature of the case could not have left room for doubt in the mind of any person in any situation, it fell in my way to be assured that a real regard for economy, forming a striking contrast with the mixture of waste, corruption, and dark despotism which in one of the two cases has since been exemplified, was an actuating motive: and that with the spontaneously expressed desire of receiving those suggestions, which, had not circumstances above their controul stood in the way, would accordingly have been received, any such design on the parts of either of them, as that of giving, on the particular occasions in question, any such increase as, on one of those occasions, has since been given, to corruptive influence, was plainly incompatible.

As to the tract itself, with the exception of a few inconsiderable verbal alterations, which the nature of the case necessitated, it is exactly in the state in which it was written; which was in the months of April and May 1810.

For Contents, vide suprà, p. 281.

SECTION I.

INTRODUCTION.

Having taken my leave of the departed orator, I have now to pay my obeisance to the surviving statesman; who, though in the line of politics not always conjoined with him, will, in the track of principle, be on the ground here in question, found, as there has already been occasion to observe, separated from him by no great distance.

For principles such as on this same ground may serve as a standard for comparison, I must, on this occasion, as on that other, take leave to refer the reader to these closely compressed thoughts, which are about to take their chance for obtaining a small portion of his notice. [Vide Advertisement, p. 278.]

For the convenience of such persons whose taste or whose disposable time shrinks from any such mass as would be formed in the union of all three papers, I detach in advance these two parts from that which had been intended to precede them. But forasmuch as throughout this third part, reference, either express or tacit, is all along unavoidably made to the principles laid down in the postponed part, and enforced by that by which this one has now lately been preceded;* I find myself in this respect reduced to the necessity of supposing, or at least writing as I should do if I supposed the postponed, as well as the already published part, to have already made its experiment upon the reader’s patience.

In the production of Edmund Burke, the quantity of matter taken for the subject of examination, was that which happened to be contained between the 62d and 68th pages, both inclusive. Within the pages designated by the same numbers, happens to be contained the only part of Mr. Rose’s work, to which the like tribute of unremitted attention has on the present occasion been paid.*

A coincidence, rather more material, is—that of the discrepancy, not to say the repugnancy, which in this instance as in that, will, if I do not greatly deceive myself, be seen to have place—by the one architect as by the other, to the same virtue, viz. economy, a temple erected in the first part, beaten down in the second.†

SECTION II.

MR. ROSE’S PLEAS IN BAR TO ECONOMY.

Plea 1.—

Vastness of the Expenditure.

1.The first of his pleas, thus pleaded in bar to any defalcations that might be proposed to be made from the mass of public burdens, is that which, with that ingenuity which will not pass unobserved, has been made out of the very magnitude of the mass.

“The whole revenue of Great Britain,” says the right honourable gentleman, p. 62, “is more than £60,000,000 a-year; the charge on which, of £242,000 for pensions and sinecure employments at home and abroad, is between three farthings and one penny in the pound. By the extinction, therefore, of all sinecures and pensions, a person paying taxes to the amount of £50 a-year, would save about 4s. Such a saving,” continues he, “we” (who are we?) “are far from thinking should be treated as trifling or insignificant; it would ill become the author to do so: on the other hand, how infinitely short would this fall of the expectation that has been held out.

“But if,” continues he, “from the total sum received from sinecures, places, and pensions, deduction were made of such as have been given as rewards for public services, the amount would be very greatly reduced; pensions to foreign ministers in particular, whose appointments are hardly in any instance sufficient for their maintenance.”

It is to “sinecures and pensions” alone, that this argument has, by the ingenious author, been applied; to the extra pay of overpaid places, not: but, applying as it does to both branches of expenditure, and with equal force, it would be wronging the argument not to give to both of them the full benefit of it.

Now, true it is, that were this argument to be received in the character here proposed for it, it would, it must be confessed, be a very convenient one, and save others in abundance. For every 4s. a-year which you wish to give away without any public use, contrive to spend £50 a-year, for which such a use, or the appearance of such a use, can be found, and your justification is then made.

Meantime, some reasoners there are, to whom the contrary inference would appear the more reasonable one:—unnecessary, or even necessary, the heavier the mass of our burdens is already, the less able are we to bear any addition to it, or even this or that existing part of it.

In my own view of the matter, I must confess the consideration of the magnitude of the mass is a consideration to which, on a question such as the present, there can be no necessity nor any great use in recurring.

Whatsoever it be that, at the expense of the people, is by the trustees of the people given to this or that individual without equivalent, and that an adequate one—I mean, without either receiving or reasonable expectation of receiving on account of the public a preponderate advantage, is so much waste,—and if given with eyes open to the misapplication of it, so much peculation.

When by indictment a man is prosecuted for theft, or by bill in equity for a breach of trust in the way of peculation, that of the pecuniary circumstances of the party to whose prejudice the act of dishonesty has operated, any account should be taken, is never looked upon as necessary, or so much as admissible. And not being so on that individual scale, I see not why it should be so on this all-comprehensive scale.

But if so it were, that I found myself under an obligation of bringing this topic to view, it seems to me, that, in the vastness of the existing burdens, I should be more apt to view an argument for decreasing it, than either for giving increase to it, or so much as keeping it from decrease.

The misfortune is, that without being thus expressed, this consideration has in experience operated, and with too much effect, in disposing the people to acquiesce, without remonstrance, under unnecessary pressure. Turn over the book of history, you will find that the heavier the burdens have been with which the people have been loaded, the greater the facility that has been found for rendering the load still heavier: or, what comes to the same thing, look backward, and you will find that the more considerable the load they had been accustomed to, the greater was the difficulty that was experienced in persuading them to submit, though it were but for a year or two, to any addition to it.

If, as the facility of engaging them to submit to increased burdens increased, the suffering produced by those burdens diminished, this disposition of mind would be as desirable as it is natural: but unfortunately this is not the case. By heaping law taxes upon law taxes, and law fees upon law fees, you may ruin a thousand families one year, two thousand the next year, and so on: and, the greater the number that are thus ruined, the better enabled and the better satisfied will the man of finance and the man of law be to go on receiving more and more: it will be to both of them, as it has been to both of them, and to both in one, a motion of course; but it does not appear, or (to speak intelligibly to learned gentlemen) non constat, that when the number thus ruined is two thousand, the affliction is to each or any of them lighter than when the number was but one thousand.

For forming a gag to stop complaints in the mouth of the party tormented, as well as a callus to case the heart of the tormentor, precedent is indeed a mighty good thing; and the more manifold the precedent, the more effective the gag, as well as the harder the callus: and the latter use is that to which these several pleas against economy, and this first plea in particular, seems more especially destined and adapted. The misfortune is, that by the callus formed round the one heart, the affliction that rends the other is not assuaged.

Oh but, sir (cries somebody,) what is it you are about all this while? and how sadly have you been misrepresenting the right honour able gentleman! Here are you imputing to him this sad purpose, and that immediately after having read and passed over (fie upon you!) a paragraph in which he tells you himself the purpose he had in view, and that a very different one.

True it is that I have read that paragraph; but as to the purpose spoken of in it, I feel myself under a sort of embarrassment which I shall proceed to state.

“The opinion already alluded to,” says the paragraph, p. 62, “as prevailing to a certain extent, that if sinecures and pensions were entirely suppressed, the burdens of the country would be instantly lightened to a great amount, and by some entertained that they would in that case be removed altogether, renders it necessary that a comparison should be made of the before-mentioned total (viz. of sinecures and pensions,) large as it is, with the amount of the taxes raised upon the people.”

Now then—what is expressly averred here is—that an opinion to the purpose in question is “prevailing to a certain extent.”

What seems to be insinuated—I should rather say—what, from the idea of “necessity” thus brought to view, some readers might be apt to imagine, is—that the purpose the right honourable gentleman had in view, was only the setting the people right in respect of this supposed prevalent error, and not the persuading the imposers of public burdens to consider the enormity of the mass as affording an argument for not diminishing it.

Now then, as to this supposed error: what seems to me is, that it must have been in some vision or some dream, and nowhere else, that any persons, not in the care of a keeper, could have presented themselves to the conception of the right honourable gentleman, as entertaining it. The interest of the debt paid without money—the expense of the army defrayed without money—the expense of the navy defrayed without money,—all this, not to speak of anything more, must have been believed by any person, in whose mind any such opinion should prevail, as that if sinecures and pensions were suppressed, the burdens of this country would be removed altogether.

Another thing that passes my comprehension is, how should it be that, supposing them to have found, “to a certain extent,” whatever that extent be—that is, to a certain number, whatever that number be—a set of people among whom any such opinion was prevalent, how it should be that it should have entered into their conception, otherwise than in dream or vision, as above, that, for the purpose of setting right any such people, and weaning them from their error, there could be either necessity or use in bringing forward any such ingenious and accurate calculation as that which has just been seen and which he was thereupon immediately about to treat us with: as if, supposing the existence of any such swine, such pearls could be of any the smallest use to them!

If to so right honourable a gentleman anything could be attributed that would bear any such appellation as that of artifice—(no I will not call it artifice—I will call it astutia—and then everything will be as it should be)—what, on an occasion such as this, one should be tempted to suppose, is, that the agreement thus brought forward, and put in front of the battle, was the result of a consulation with some learned, or quondam learned, as well as right honourable or honourable gentlemen, profoundly learned in that superior and purer branch of the law called equity; one of the rules of which is, that in the drawing of the initiative instrument called a bill, to entitle yourself to ask a question of the defendant, you must, in the first place, impute to him the having told some story or other, no matter how extravagant, which he never told, to serve him in the character of a “pretence” for defrauding the orator (your client) of his due; he himself neither having heard of the defendant’s ever saying any such thing, nor believing him to have ever said it; which falsehood having thus with all due regularity been come out with, serves by way of licence, as well as introduction, to whatsoever other falsehoods, mixed with whatsoever truths, it may have been deemed convenient to introduce.

SECTION III.

Plea 2.—

Need of Provision for Decayed Nobility, &c.

2.The next plea is that which is founded on the alleged necessity of making provision for noble and respectable families fallen into decay.

“The pension list,” continues the right honourable advocate, p. 63, “also contains provisions for noble and respectable families fallen into decay; this is, however,” continues he, “an exertion of national generosity, if not of justice, which the most scrupulous economist will hardly consider as improper. Something,” continues he, “must certainly be allowed for mere favour; but when the instances are clearly improper (and it is not meant to contend there are no such,) they are at least open to public animadversion, as they are now regularly laid before parliament, and printed from time to time, which certainly affords a considerable, if not an effectual, check against abuse.”

Thus far the right honourable gentleman. For my own part, I am doomed to fall into sad disgrace with him. The conception entertained by him of any “the most scrupulous” sort of person, in the character of an “economist,” is far outstripped by me. Under what denomination it may be my lot to fall in his black dictionary, I know not; if it were that of Jacobin or Leveller, it would be no surprise to me.

Of the sort of justice which can so much as permit, not to speak of commanding, any such disposal of public money, I have no conception; nor yet of generosity, unless it be of that pernicious and hypocritical sort which gratifies itself at the expense of justice.

My protest is in the first place against the principle; as being founded on oppressive extortion, and breach of trust; as affording encouragement to extravagance, and to every vice that is fed by extravagance; as being still unjustifiable, even though there were a certainty of its not having either vice or extravagance for its consequence, any more than for its cause.

My next objection is to the amount; as being without limit; as scorning all limit: and being of itself capable of effecting a revolution in the state of property, if it did not, in a revolution in the state of power, find a preventive remedy.

I. In the first place, as to principle.

Now, to a provision of the sort in question, what is it that, according to the right honourable gentleman’s law, is to constitute a man’s title? It is “decay;”—mere decay;—the having fallen into decay; i. e. the being at the time in question in a state of indigence. Mark well, that to indigence at that degree, to which the next degree is death, or at least disease, his argument does not look; for indigence in that shape, provision is made already—made, to wit, by the species of tax called the poor rates: a tax which, even by the right honourable gentleman himself, on whose feelings public burdens sit thus lightly, has never been spoken of as a light one.

This provision, then, is not the sort and degree of provision he has in view: of the sort and degree of provision which he has in view, what more adequate or unexceptionable description can be given, than that which has been given in and by his own words? For “noble” families, then, it must be noble; for “respectable” families, it must be respectable.

Against provision of even the scantiest kind, an objection that by many has been regarded as a peremptory one, is, that it operates as a provision for idleness and extravagance. By myself, any more than by the right honourable gentleman, it has never been regarded in that light; not seeing, that so long as it is confined to what is absolutely necessary to keep a person alive and free from disease, and given on condition of working, where work can be made profitable (and beyond this I undertake not for the defence of it) subsistence is capable of acting to any preponderantly formidable extent in that character: and considering that, without some such provision, multitudes there are, that by infirmity, the result of infamy, or decrepitude, or disease, would without any default of their own be exposed to perish, and would accordingly perish, by lingering disease or famine.

But by any such provision, neither the generosity of the right honourable gentleman, nor so much as his justice, is to be satisfied: for noble families, satisfied it never can be by anything less than a noble provision; for respectablefamilies, by anything less than a respectable one.

In the provision already made by law—a provision neither limited, nor, unfortunately for the country, capable of being limited—some have viewed a gulf capable, of itself, of swallowing up one of these days the whole produce of national industry. Of any such disaster I have not, for my own part, any serious apprehension; but, of the generosity of the right honourable gentleman, or by whatever other name this article in the catalogue of his virtues be to be called, of this virtue, if once admitted to operate, and in the character of a principle set the law to practice, I cannot but regard this catastrophe as an inevitable consequence.

II. For now let us think a little of the amount: and to this the right honourable gentleman has not attempted to set any limits. Vain indeed would have been any such attempt; the principle scorns all limits. Taken by itself, nobility,—had that been the only source of demand on this score—would not have scorned all limits. Noble families, for example, so many:—in each family, generations reckoning downwards from each peer, to be regarded as still noble, so many:—minimum of the pension to each individual in a state of decay, according to the rank occupied by the family in the scale of the peerage, is so much. Here would have been one exercise for the right honourable gentleman’s skill in figures.

But neither for the right honourable gentleman’s generosity, nor for his justice, is it enough, that for noble families in decay a noble provision be thus kept up; for respectable families in the same state, there must moreover be a respectable one. Here all powers of calculation, even those of the right honourable gentleman, would find themselves at a stand.

For the moment, let me take the liberty of proposing for them an analogous, though a somewhat different exercise.

By the taxes, as they stand at present—(I presume it is out of taxes, and not out of heaven-dropped manna or heaven-dropped quails, that, according to his plan, the noble and the respectable provision would be to be made)—by the taxes, as they stand at present, a certain number of families are every year pressed down from a state of independence into a state of pauper and parochially-supported indigence. Now then, for every branch of a noble and respectable family, which, by the noble or respectable provision respectively, is kept above indigence—meaning that which, to the noble or respectable family would have been indigence—how many branches that, without being either noble or respectable, or as yet independent, would be pressed down into that which really is indigence? If thought be too much to ask for, a calculation of this sort from a right honourable hand, in which figures are so plenty and so much at command, might, at any rate, be not undeserving, it is hoped, of a few figures.

Another exercise for the mathematics of the right honourable gentleman. The respectable families—let them for the moment be laid out of the question—let the calculation still confine itself to the noble ones.

After observations taken of the rate of the increase given to nobility by his still present Majesty, or even of that part of it that was given with the advice of the right honourable gentleman’s departed hero, let him, with Cocker in his hand, carry on the increase through a portion of future contingent time. Considering that neither Scotland nor Ireland, nor anything that is noble in either kingdom, can on this occasion be left out of the account, let him inform us what are the number of years that will have elapsed antecedently to that point of time at which the amount of the provision made on his plan for noble decay, will have outstripped that of the provision at the same time made for ignoble indigence.

“Oh, but you are confounding classes—you are confounding species. This is the way with you jacobins and you levellers. You confound every thing. The noble and respectable families are of one species: the ignoble and unrespectable families are of another. The ignoble and unrespectable families are of the species that are sent to Walcheren; the noble and respectable families are of the species that send them there. The families whose branches are to be preserved from decay, are those whose feelings have a right to be consulted: the families that are to be helped on in the road to ruin, are those whose feelings have no such right.”

A smile beams on the countenance of the right honourable gentleman. He calls for his extinct peerage: he foresees his triumph: he beholds the confusion of the jacobin; when, at the end of the calculation, it has been made as plain as figures can make anything, how many centuries will have elapsed before any such outstripping can have taken place.

Well then; having, by the success of the operation thus performed upon the noble families, given vigour to his hand, let him try it upon the respectable ones.

What has just been seen, is what the right honourable gentleman has not anywhere said. True;—but it is what (I fear much) from the beginning of this pamphlet to the end of it, is but too much like what he has thought.

“Something,” (says the right honourable gentleman, such is his candour) “something must certainly be allowed for mere favour.” Good sir, you already forget your own argument: it is all mere favour, or it is none. “Decay,” not service; “decay,” not merit in any shape, real or imagined, was your title: decay, by what cause soever produced, as well as in whatsoever quantity; produced by eating and drinking,—produced by carrying about seraglios in foreign missions,—produced by horse-racing,—produced by dice or E. O.; is decay less decay? Is nobility the less noble? Is respectability (I mean your sort of respectability—the respectability which consists in having or spending money of one’s own or other people’s) the less respectable?

Talk of justice and injustice? So long as any one individual is, whether on the score of nobility or of respectability, preserved in this way from decay, it is not mere disfavour, it is no better than mere injustice, to refuse it to any other.

“But where the instances are clearly improper—and it is not meant,” continues the right honourable gentleman, “to contend that there are no such, they are at least open to public animadversion.” Good sir, once more your candour carries you too far. What you do not mean to contend for, I must, even I. Indeed, sir, there are not any such instances: your principle admitted, there cannot be any.

“They are at least open to public animadversion.” Your pardon, sir; indeed they are not. Individually they are not: they are not common: to the “public” two things altogether necessary to the purpose are wanting, viz. information and time. Mr. Brown has £1200 a-year: two Miss Vandals have £600. Who knows who this Mr. Brown or those Miss Vandals are? At the moment when the necessity of providing for noble or respectable decay in the person or persons of this Mr. Brown or these Miss Vandals, has by some noble or right honourable person been whispered into the royal ear, the whisperer knows: but the next moment nobody knows. Even now there are more of them than the public patience can endure so much as to count: and shall we talk of scrutiny? More than can be so much as counted even now! and what shall we say when, your principle being in full operation, there are with us in England, as you know when there were in France, enough of them to fill a red book, and that, like the army list, no small book, of themselves.

No, sir; individually open to public animadversion they are not, even now: much less at the time in question would they be. But in the lump, in the principle on which they are proposed to be multiplied, and that to infinity, they are “open to animadversion:” and on this consideration it is that the presumption, betrayed by the present weak and inadequate attempt at “animadversion,” has found its cause.

On the wing, who can think to catch, who can so much as follow, all such wasps? But in the egg, if the people have but spirit enough, they may be crushed.

“Something,” says the candour of the right honourable gentleman, “must be allowed for mere favour.” Yes: and something must also he allowed for an affection of an opposite nature. This candour of his shall not go unrequited: it shall be paid for in the same coin. If profusion be, as it appears to be, all that is meant by “the abuse,” a check that abuse “certainly” has;—and that check but too “certainly” is “considerable,” though unhappily it is far from being “an effectual” one. Of itself, profusion, were that the whole of the disorder, would have no check: but, complicated as it is with another disorder, corruption, in that other disorder, odd as the case may seem at the first mention of it, it does find a sort of a check: the diarrhæa finds in the septic diathesis a sort of astringent.

The paradox will disappear immediately. When it happened that the right honourable gentleman, by whom the case of the sprig of decayed nobility or respectability had been submitted to royal “generosity” or royal “justice,” had been voting on the improper side, the instance (could any such hopeless intrusion be supposed on the part of the right honourable gentleman) would be one of the clearly improper ones, and the decay would be left to its own natural course. When so it happened that on all occasions the patron had properly understood, as in duty, I mean in loyalty, every such patron is bound to understand, what on each occasion is the proper side, the decay would find its proper preservative, and the profusion would be left to the operation of that check, with the virtue of which the right honourable gentleman is so nearly satisfied; I mean, that “certainly considerable, if not effectual check” against abuse, which is “afforded” by the pensions forming, when the mischief is past remedy, part and parcel of that almost completely unintelligible, and effectually inscrutable, mass of information or non-information, which is “now” “so regularly laid before parliament.”

SECTION IV.

Plea 3.—

Need of Subsistence for Official Persons.

3.A third plea is that which is composed of the alleged non-excess, or even insufficiency, of official incomes.

“If we look to official incomes, it will be found they are in most cases,” says the right honourable gentleman, “barely equal to the moderate, and even the necessary expenses of the parties: in many instances, they are actually insufficient for these.”

Under the modest guise of a plea against retrenchment, we have here a plea for increase, and that again an inexhaustible one.

In this plea, two points present a more particular call for observation.

One consists in the indefiniteness, and thence in the universality, of the terms by which the incomes in question, and thence the incomists are designated. By “official incomes,” unless some word of limitation be annexed—and no such word is annexed—must be understood all official incomes. Less than all cannot be meant; for, if anything less be meant, the argument falls short of its undissembled purpose. In most cases, scantiness being asserted, and in many, insufficiency—and that even without a view to the single purpose of a bare subsistence, whether there be any of these incomes that are more than “barely equal” to that object, is left to conjecture.

2. The other the word necessary, viz. in the application here made of it to a mass of expenses that are to be defrayed at the public charge: an aggregate composed of the several individual expenditures of all these several official persons; and when the present Mr. Rose comes to be in the situation (poverty excepted) of the late Mr. Pitt, let any one calculate, whose skill in calculation is equal to the task, how many are the hundreds of thousands, not to say the millions, a-year, that will depend on the construction of these two words.

To assist us in this calculation, an example, though unfortunately but one, has been afforded us by the right honourable gentleman: and, so far as this carries us, it will appear that, even where, by the frugality of the right honourable gentleman, it is confined to what is “necessary,” (the inflexibility of this virtue not suffering it to rise to so high a pitch as even to be “moderate,”) what, in speaking of an official person, is meant by his expense, is composed of the official income, whatever it be, which he finds provided for it by law, together with a capital to the amount of between eight and nine years’ purchase of it, or reckoning by the year, about 25 per cent. upon it, the person’s own patrimony, if he happens to have any, included or not included. But of this under another head.*

SECTION V.

Plea 4.—

Need of Money for making Fortunes for Official Persons and their Families.

4.The next plea is that which is founded on the alleged necessity of enabling persons in official situations—all persons in all official situations—to provide for their families at the public expense.

“May we not then venture to ask,” continues the argument from the passage last quoted—“may we not then venture to ask, whether it is reasonable, or whether it would be politic, that such persons should, after spending a great part of their lives with industry, zeal, and fidelity, in the discharge of trusts and public duties, be left afterwards without reward of any sort, and their families entirely without provision?”

The skill of the right honourable gentleman in arithmetic is above, far above, dispute; but, if we may venture to say as much, his logic seems to be not altogether upon a par with it.

His antecedent, as delivered in the last preceding sentence, is, that the “official income” of the official man is “in many instances insufficient,” even for his necessary expenses, meaning his necessary current expense; and in this next sentence, the consequent or conclusion drawn is, that, in plain English, and to speak out, he ought to be enabled to make his fortune always at the public expense; and that to so good a purpose, that after his decease his family may, in respect of current expenses, so long as it continues, find itself—in what plight? in the same plight (we are left to conclude) or thereabouts, as its founder, the official man himself.

As to the being preserved as long as it lasts,—preserved in all its branches from decay,—that any such provision would be short of the mark, though not to what degree short of the mark, is what we are assured of; for if the family of an official person be a respectable family (and if not, what family can be a respectable one?) if this be admitted, “trusts,” or no trusts, “public duties,” or no public duties; the being kept in a state of perpetual preservation from decay is a right that, in the preceding paragraph, has been claimed for them by the right honourable gentleman’s “generosity,” supported by his justice.

The form of the argument is indeed rather of the rhetorical than the logical cast—May we not venture to ask? The answer is, good sir, no apology—ask boldly; but ask one thing at a time. First, let us make up the deficiency in respect of current and present expenses, and as the supply we are to provide for these “dischargers of trusts and duties” is to keep pace with their expenditure—with the expenditure of each and every of them (for your “generosity” makes no exception)—“may we not then venture to ask,” on our parts, for a little breathing time? If so, then, after we have taken breath a little, will be the time for entering on the further employment you have found for us; viz. the making provision for the families of those official, and therefore meritorious persons, whose “industry, zeal, and fidelity,” as we have not the honour of being acquainted with them, it is impossible for us to dispute.

To this industry, zeal, and fidelity, the “reward” which your generosity and justice, your reason and your “policy,” have in store for them, is doubtless to be proportioned: for otherwise those virtues of theirs would, as to a part of them more or less considerable, be left without reward—(virtue left without its reward!)—and as, in the estimate to be formed of the degree in which these several virtues will, by the several official, and therefore meritorious, persons be displayed, your “policy,” under the guidance of your “generosity,” will not find itself under any restraint; the quantity of the reward will be as little in danger of finding any such limits, as would pinch and straiten it.

The “insufficiency” of their respective “official incomes,” for the respective “necessary expenses” of these officially industrious, zealous, and “faithful” persons—as such is the title on which the “generosity,” “justice,” “reasonableness,” and “policy” of the right honourable gentleman rest their right to have their “necessary expenses” defrayed for them, and at the same time their fortunes made for them; and as no other man can be so good a judge of what is necessary for a man as the man himself is—there is a sort of comfort in the reflection, how small the danger is, that, upon the principles and plans of the right honourable gentleman, virtue, in any such shape at least as that of “industry, zeal, and fidelity,” (meaning always official ditto) will be left without its reward. Having got your official situation, you spend in it so much a-year as you find necessary. Having so done, thus and then is it that you have entitled yourself to the benefit of the right honourable gentleman’s conclusion—his logical conclusion, embellished and put into the dress of a rhetorical erotesis—that you are entitled to receive out of the taxes as much more as will secure to your “family” that “provision” which, in virtue of your “industry, zeal, and fidelity,” speaking without partiality, or with no other “partiality” than that which, according to the head-master* in the school of official economy, is a kind of justice, it appears to you to deserve.

After so exemplary a pattern of diffidence as has been set by a right honourable gentleman, whose grounds for confidence are so manifest and so unquestionable, a plain man, who feels no such grounds, nor any grounds, for any such pleasurable sensation, can scarce muster up enough of it to put a question of any kind, for fear of being thought encroaching: but, if any one would save me harmless from that charge, I would venture to ask whether it may not have been by a too unqualified adherence to these principles, a too rigid adherence to these precepts, of the two great masters, and without taking the benefit of those precautionary instructions, which the prudence or even the example of one of them might, if sufficiently studied, have furnished them with, that their right honourable friend Mr. Steele, and the honourable Mr. Villiers, and the till the other day honourable Mr. Hunt, and the gallant General Delancy, and the “industrious, zealous, and faithful” Mr. John Bowles, with his et cæteras, and so many other et cæteras, were led into those little inaccuracies, which time after time have afforded matter of so much, though happily as yet fruitless, triumph to jacobins, levellers, and parliamentary reformers?

It is necessity alone, and not inclination, that, in the performance of the task I have set myself in the school of economy, so frequently imposes upon me so great a misfortune as that of being seen to differ from so great a master as the right honourable gentleman: and accordingly, wherever I am fortunate enough to be able to descry between us anything like a point of coincidence, it is with proportionable eagerness that I lay hold of it, and endeavour to make the most of it.

His plan is—that “official persons,” among whom, for the purpose in question, he includes (I presume) persons proposed or proposing themselves for official situations, should determine for themselves what mass of emolument is sufficient for their own expenses, and what for the expenses of their respective families, in present and in future. Now, thus far, this is exactly my plan. Thus far, then, we are agreed; but now comes the unfortunate difference.

My plan (it will be seen) is, that having formed his own calculations, each candidate, in taking his determination, should take it once for all: and moreover, that, as in the case of stores, in which instance, instead of skilful labour itself, the produce of skilful labour has, with such well-grounded approbation on the part of the right honourable gentleman, been, ever since the time he speaks of,† regularly furnished for the public service, there should be a “competition,” whereupon that one of them, whose judgment concerning what is sufficient for him and his, is most favourable to the public interest, should (unless for, and to the extent of, special cause to the contrary) be accepted.

Thus far my plan. But, according to the right honourable gentleman’s, the accepted candidate, who without any such competition is to be accepted, viz. in considerations of that “industry, zeal, and fidelity,” which will be so sure of being found in him—this accepted candidate, after his calculation has been formed, and the office, with its emolument, taken possession of, is to have the convenience of remaining at liberty to correct by the light of experience (as we shall see* the illustrious chief and pattern of all official men did) any such errors as the calculation shall, from time to time, have been found to contain in it. By this practical test having ascertained what is “necessary” for his own present expenses, he will have put himself in a condition to determine, and ought accordingly to stand charged with the “trust and duty” of determining, what further provision will be necessary for the “necessary expenses” of his family, considered in its several branches, present and future contingent, for and during the continuance of that portion of time called future time.

Another unfortunate difference is—that, according to my plan, no exclusion, either express or implied, is put upon such candidates to whom it may happen to have property or income of their own: unable as I am to discover any such office, for the “trusts and duties” of which, any such property or income can reasonably be considered as constituting, in any point of view, a ground of disqualification, or to understand, how it can be that a hundred a-year should, in the case of its being a man’s own private money, go less far towards the defraying the “necessary expenses” of him and his, than if it were so much public money, received in the shape of official emolument out of the public purse. What, in regard to my official man, my plan accordingly assumes, is—either that he has more or less property or income of his own, or (what in my view comes to much the same thing) what, if anything, remains to the official situation, after the offer made by him, in relation to it, has been accepted, is, in his own judgment, sufficient for his “expenses,” “necessary” and unnecessary, upon every imaginable score.

Of this assumption, that which seems all along to have been proceeded upon by the right honourable gentleman’s plan, is exactly the reverse.

True it is, that no disqualification act, excluding from official situations all such persons as shall have either property or income, is anywhere proposed by him;—no, nor is so much as any recommendation given by him to the wisdom of the crown in the choice it makes of persons for filling these situations, to act as if a law to some such effect were in force. But, all along, the supposition proceeded and argued upon by him is—that there exists not, in the quarter in question, any such relatively superfluous matter: a state “entirely without provision” is the state in which “afterwards,” to wit, after “a great part of his life spent” by the official person “in the discharge of trusts and duties,” his “family” is spoken of as being “left:” and it is upon this supposition that at least the “policy” of the right honourable gentleman (not to speak of his humanity) grounds itself in the appeal it makes to that same endowment, which he beholds as fixed in the breasts of those honourable persons for whose use this lesson of economy is designed. Would it be “reasonable?”—would it be “politic?”—are the questions which on this occasion he asks leave to “venture to ask.”

SECTION VI.

Plea 5.—

Need of Money for Buying Men off from Professions.

5.A fifth plea is composed of the alleged necessity of buying off men from private pursuits: in other words, of the want of “wisdom” there would be in failing to allow to official men—to all official men—in the shape of official emolument, as much money, at the least, as anybody can gain “by trade or manufactures.”

“It would hardly,” says he, p. 64, “he wise, on reflection, to establish a principle, which would have a tendency at least to exclude from the service of their country, men likely to be useful to it. Great numbers of those who engage in trade and manufactures (than whom none are held in greater estimation by the author) or who enter into various professions, frequently acquire very large fortunes” (very true indeed) “and seldom, if they have talents and perseverance, fail to obtain independence. What fairness, justice, or reason, is there then in marking the character of the official man alone with disrespect, and himself as unfit to have reward in any case, beyond an annual stipend for his labour and services, just sufficient for his current expenses, however faithfully and diligently he may have discharged an important trust for a long series of years?” “Surely,” concludes he, “it is not unwise or unreasonable that the public should be in a situation to bid to a limited extent for talents, in competition with other honourable and lucrative professions, and various branches of trade and manufactures.”

Thus far the right honourable author:—as for the obscure commentator, perplexity is once more his fate. The right honourable author speaks of a principle: a principle which, such as it is, he disapproves of. But what this principle is, the obscure commentator can no otherwise take his chance for declaring aright, than by a very random guess.

The omitting, in the instance of an official person, to make for his family a provision, such as he (the official person) or the right honourable author, or somebody else (and who else?) shall pitch upon as being “necessary,” and, according to the just-described plan of estimation, sufficient? An omission to this effect, is it the thing to which, by the style and title of a “principle,” the right honourable gentleman, “on reflection,” means to attach the censure (for gentle and considerate as it is, it is still a censure)—attached to it, viz. by saying of it that “it would hardly be wise?” Yes; this must be it; at any rate, it is the nearest approach to it that the perplexed commentator is able to make.

But of this principle, which “it would hardly be wise to establish,” though unfortunately we have no such specific and particular description, as (were it only to save us from wishing to see an unwise principle established) we cannot but wish for, we have at any rate a general description, viz. such a description as is given of it by the designation, its imputed tendency:—and that in so many words:—“a principle” (says he) “which would have a tendency at least to exclude from the service of their countrymen likely to be useful to it.”

Now, in this principle, if so it be that the perplexed commentator has succeeded in his humble endeavours to pierce the cloud that covers it—in this principle we have another measure of the quantity of emolument which on this single score, not to speak at present of any other—on this one account, viz. that of money to be employed in making the fortunes of their respective families, the right honourable author, did it depend on him, would, in the situation of minister, annex to office,—annex to every office.

Let us distinguish what requires to be distinguished. What, under the last head, we learned, was one of the purposes for which the official emolument was necessary;—what, under this head, we receive, is a sort of standard of reference, from which the quantity of that necessary emolument may be estimated, and finally set down in figures. True it is that, on the present occasion, not that same purpose, but a fresh purpose, is named and brought to view; there, the purpose was, enabling the official man to make his family, here, it is—inducing a man, not as yet official, to become such by buying him off from other pursuits;—from all pursuits, how lucrative soever, in any one of which, if not thus bought off, it might have happened to him to engage.

But, if the quantity allowed for this fresh purpose (viz. the buying-off purpose) be ample enough (and the necessity of not being niggardly on this score will be no secret)—the consequence is, that by the help of a little economy, such as at the hands of so enlightened a professor of economy it might not be too much to venture to ask for, one and the same mass of money might be made to serve both purposes. The reason is—that, on the occasion of the two purposes, two different periods are in question; viz. that of possession, and that of expectancy. When actually in possession, whatsoever it be that is necessary to a man, for the good purpose (whatever it be) which is in question (making a family, for example, and so forth,) that it is that he must have in hand. But, before he has taken possession, and till he has taken possession, it is not necessary, how desirable soever on some accounts it might be, that at the public expense he should have anything. So as you do but give him in prospect, and sufficiently secured, as much as, if in possession, would be, by ever so little, more than any man ever got into possession of by means of trade or manufactures—a million, for example—that same million will, when the time comes, be accepted of, upon account at least, as and for the money necessary to make his family. Of this same million, the eventual possession being sufficiently secured, the bare expectation will suffice to buy him off from all trades and manufactures in the lump: so that in fact, if when measured according to the standard laid down by this fifth plea, the allowance made on the sum mentioned in plea the fourth be sufficiently liberal, the advantage mentioned in this same fifth plea is so much got for nothing.

Money, it must all this while be carefully kept in mind—money is the only sort of matter which, according to the principles of our right honourable author, is to the purpose here in question; viz. to the purpose of providing recruits for the official establishment, capable of officiating in the character of matter of reward. Even so substantial a thing as power—power of management—power of patronage,—titles,—honours, not to speak of any such empty bubble as reputation—all this, in the estimation of the right honourable author, is, to the purpose here in question at least, without force or value.

Money, therefore, and in the same quantity as if there were nothing else that had any value, is the matter of which the reward, or whatever it be that is to constitute a man’s inducement to engage in the service of the country, is to be composed.

But, as is very truly observed by the right honourable gentleman, so it is, that, in virtue of the money, the prospect of which they present to those who engage in them, there are not only “other honourable and lucrative professions,” but “various branches of trade and manufactures,” that enter into “competition” with the money, which, in the character of official emolument, stands annexed to official service.

Equally true it is, that every instance in which, in case of a man’s “engaging in any of those non-official lines of industry, and in particular in any branch of trade or manufactures, it might happen to him to get more money than he could by official service, the difference, whatever it may be, has” (to use the words of the right honourable gentleman) “a tendency at least to exclude from the service of their country, men likely to be useful to it.” True, on the other hand, it is, that the character in which this “tendency” operates, is not that of a physical bar: no, nor so much as that of a penal statute. It is, however, in the character of that sort of obstacle, the resisting force of which is in his eyes so powerful, that the whole paragraph, with the whole of the deobstruent force therein contained, is devoted to the sole purpose of removing it; viz. by persuading those on whom it depends, so to order matters, that by this “discharge of trusts and duties,” more money may so be got by somebody or anybody, than can be got by anybody in the exercise of any “lucrative profession, trade, or manufacture.”

Now then, to get the better of so troublesome a thing as this “principle of exclusion,” and enable the “service of the country” to have as good a chance as “trade and manufactures” have, for “engaging men likely to be useful to it,” what is then to be done? Two courses there are, and in the nature of things but two, by which any such effect is capable of being produced. One consists in lessening the quantity of money capable of being gained in the way of trade and manufactures; the other, in increasing the quantity of money capable of being gained in the shape of official emolument in the way of official service.

To the quantity of money capable at present of being gained in trade or manufactures there are no limits. A million or more one hears spoken of as the amount of the money gained in this or that instance, and even from no very considerable beginnings: of half that money, or thereabouts, one hears in numbers of other instances. Fixations of this sort must remain exposed, not only to original uncertainty, but to continual variation. By a select committee, with the right honourable gentleman at the head, this point, however, is one that needs not despair of being settled: settled, if not with mathematical exactness, at any rate with that rough degree of precision which is sufficient for practice.

True it is, all this while, that on behalf of the public—that public which he has thus taken under his protection—the sum which the right honourable gentleman requires for this purpose is but a “limited” sum. To enable the public to maintain, on the occasion in question, the proposed “competition” with so formidable a host of competitors as the “other honourable and lucrative professions, and various branches of trade and manufactures,” all he asks is—that it “should be in a situation to bid to a “limited” extent.

But, the limits here alluded to—at what point shall they be set? If set at a sum, the effect of which will leave to these rival pursuits so much as a “tendency to exclude from the service of their countrymen who are likely to be useful to it,” they will “exclude,” from the faculty of regulating practice on this head, the right honourable gentleman, with those “wise” principles of his which he is thus supporting against the unwise ones he complains of.

For a maximum, beginning with the highest situation, shall we, to make sure, say, for example, a couple of millions, to be laid up over and above “his necessary current expenses,” by an official person who, with that “industry, zeal, and fidelity,” the union of which the right honourable accountant gives him credit for, as a matter of course, shall, in that highest situation, have spent in the “discharge of trusts and public duties a great part”—say, for example, five-and-twenty years—of his life?

For our maximum, taking, then, these two millions, or even so scanty an allowance as a single million, and setting out from this point, shall we proceed downwards till, after the manner of that other state lottery, which is commonly so called, we have got for our lottery a number of prizes equal to the aggregate number of official situations?

This is what, “on reflection,” the “wisdom” of the right honourable gentleman requires us to do, on pain of seeing “established, the principle,” against the “exclusive tendency” of which we have been seeing him remonstrate so pathetically: this, in short, is what we must do, unless, embracing the only other branch of the alternative, and going to work in the other quarter, we set ourselves to restrict the quantity of money that a man shall be “in a situation” to gain by any of the “various branches of trade and manufactures.”

In the “bidding,” thus proposed by him “for talents,” if on his plan the public service is to have any chance of bearing off the prize or prizes, there remains therefore but one other expedient; and that is, the “limiting,” and thus eventually lessening, the quantity of the emolument which men shall have it in their power to make in trade or manufactures.

But this is what the right honourable gentleman would never permit himself to endeavour at. For this would be to “mark with disrespect the character”—not now indeed “of the official man,” but what, in the right honourable gentleman’s estimation, would be quite as improper a character thus to mark, viz. that of the mercantile man. It would be to stigmatize by this invidious mark “great numbers of those who engage in trade and manufactures:”—persons “than whom none,” not even the official man himself, “are by the author,” (as the right honourable author is himself pleased to assure them) “held in higher estimation.” This, then, is the objection to the setting limits to the sum which a man shall be “in a situation to gain by trade or manufactures:” and after an objection thus conclusive, it were lost time to look for minor ones.

SECTION VII.

DIGRESSION CONCERNING THE VALUE OF MONEY.

Such, as we have seen, is the course one or other branch of which is, “on reflection,” in the sight of the right honourable author, so necessary, that the omitting to pursue it is considered by him as that which would have the effect of “marking the character of the official man with disrespect;”—which to do would—as, in the way of interrogation, the right honourable gentleman, with most incontestable propriety, observes—would be to act without “fairness, justice or reason.”

Now as to “disrespect” for this protégé of the right honourable gentleman—disrespect for him I do protest that I feel none. But, as to the allowing to him out of the taxes all that money which the “generosity” and “justice” and “reason” and “policy” and “wisdom” and “fairness” of his right honourable patron lays claim to on his behalf—without knowing exactly what it is, thus much I know, that so expensive a proof of the absence of disrespect is more than I could afford to pay my share of: mine being one of the “many instances in which income,” even though not “official,” is insufficient (to borrow the right honourable gentleman’s words) “actually insufficient for these.”

What I am therefore reduced to, is—the plea that my declining to do that, to the doing of which my limited means are so far from being sufficient, is not a mark of disrespect to anybody; and by this plea, in so far and so long as it can be maintained, as I humbly conceive it may be to the very last, without disrespect to the right honourable gentleman, I am determined to abide.

My notion of him (I mean the “official man”) is—that, besides money, there are other things that are capable of being objects of his regard: other things that are capable of engaging him to take upon himself the obligations of office, in the words of the right honourable author (of the value of which, when they are to be had, I am too fully sensible to take up with any other) to “spend” even “a great part of his life in the discharge of trusts and public duties:” and in proof of this, regarding fact as no bad proof of possibility, I have referred to several most conspicuous, and happily very extensive lines of practice.*

If it be by either of us—if it be by anybody—that this same “official man” is treated with “disrespect,” I would venture to appeal to every man, in whose eyes there may be anything besides money that has a value, whether it is not, by the right honourable gentleman himself, whose sympathy can so ill brook the imputation, and whose imagination paints to him a set of unreasonable people—a set of people, into whose company, spite of all protestations, I cannot but expect to find myself forced—people who, being sworn enemies to this same officially “industrious, zealous, and faithful” person, exercise themselves in “marking his character with disrespect,” in despite of “fairness, reason, and justice,”—(p. 65.)

What the right honourable gentleman insists upon—and in a manner much stronger than by direct assertion—what he insists upon in the way of assumption, is—that upon the mind of his official person there is nothing in the world but money that is capable of operating, whether in possession or expectation, with any adequate degree of efficiency, in the character of “reward.”

Now, in regard to this same sort of person, my notion is quite opposite: quite opposite, and so determinately so, that the supposed contrariety of his disposition to the character given of him by the right honourable gentleman, is all that that plan of mine, which has so often been alluded to, has to ground itself upon.

“Money, money—nothing else, sir, is of any value in your eyes . . . .”

“Many things there are, sir, besides money, that have their value in your eyes . . . .”

The first is the language in which this respectable person is addressed by the right honourable gentleman, his declared patron. The other is the language in which he is addressed by the obscure man, his supposed enemy.

In which of these two modes of address is there most of respect—most of disrespect?—Gentle reader, judge between us.

For my part, the former mode of address is one that I could not prevail upon myself to use to any man; no, not even to the right honourable gentleman himself: not even his own licence, clear as it is—not even his own express command would prevail upon me; neither to him, nor of him, could I prevail upon myself ever to say any such thing: for I do not—no, that I don’t—I would say it to his face—believe it to be true. I beg pardon for the seeming contradiction that I put upon what he says: I mean not anything of disrespect to him in this shape, any more than in the other. I mean not that, should he absolutely insist upon giving any such account of himself, he would, at the moment, be saying that of which he would be conscious of its not being true. All I mean is, that if such be his opinion of himself, he does not do himself justice: that, for want of leisure, engrossed as his attention has been by the “discharge of trusts and public duties,” he has not looked closely enough into a subject—a human subject—which, if he were to become a little better acquainted with it than he appears as yet to be, might afford him more cause of satisfaction than he seems to be aware of.

Yes, on this ground, defend him I will, though it be against himself; and, fierce as his attack upon himself is, it is not pushed with so much skill, but that I will make him parry it.

For this purpose, I do insist upon it—I will take no denial—that he shall look once more at the last of his own pages but one. After reading, marking, and learning there, that “the most degrading corruption of a statesman, or his friends, is indeed by the influence of money,” he will find it written—and that immediately after—that “public men may be corrupted by the love of power, as well as by lust of gain.” Now then, if by this same love of power men may be “corrupted,” by this same love of power (I say) they may be operated upon; and if operated upon to a bad purpose, so may they, and (let us hope) still more easily and effectively, to a good one: for when operated upon to a bad purpose, they must be strange men indeed, if they do not find themselves operated upon, with how little force and effect soever, by some principle or other, in a counter-direction: in a counter-direction by some principle or other, call it fear of disrepute, call it conscience, call it what you please* —which they would find acting, not in opposition to, but in concert with, the love of power, in any case, in which the purpose, towards which it operated upon them, and towards which it tended to direct their exertions, were a good one.

And is it really any opinion of the right honourable gentleman’s, that to the love of power it is impossible to act upon the mind of man in any direction but a sinister one?—impossible to act upon it with effect in any other way than by corrupting it? No; that it is not: for if it were, he would shake off from his hands whatsoever, in the shape of power, he felt sticking on them; he would shake it off as he would a viper. Adieu all treasurerships! adieu even all clerkships! for to the clerkship, even of parliament, though no such troublesome appendage as that of obligation has ever been felt cleaving to it and incumbering it, yet (not to speak of money—that not being here in question) power enough, and in a variety of shapes, might be found thereunto appertaining, if a gentleman happened to be in a humour to make use of it.

Thus it is that, in and by every line, I am labouring and toiling to prove, and if possible persuade gentlemen to be of opinion, that the sun shines at noonday. But why? Only because, in and by the argument of the right honourable gentleman, the contrary fact is assumed.

SECTION VIII.

Plea 6.—

Need of Money as a Stimulus to Official Exertion.

A sixth plea, if I understand it right, consists in the alleged need of money for the purpose of serving in the case of official men in the character of a stimulus: to be applied, viz. to men of hereditary wealth and independence, to spur them on to the acquisition of talent; or else to be applied somewhere else, in order to enable us to do without them and their talents, by having better men in their stead.

Of this plea, the account I am thus giving is, I must confess, besides its not being quite so clear as I could wish, a little longwinded; but it is the best I am able to give. Meantime the reader will see whether he can make anything better of it.

“It has always been justly held,”* says the right honourable gentleman, “in a free country, and particularly in this, to be one of its greatest privileges, that the chief aristocracy, as far as relates to the management of its public concerns, should be an aristocracy of talent and of virtue, as well as of rank and of property; which principle would be destroyed, if remuneration for public services should be withheld; and the community would be deprived of all its advantages. Not only the great offices of state, but some others of most efficiency” (secretaryships to the treasury, perhaps, for instance) “must then be” (meaning probably, would in that case necessarily be) “confined to men of hereditary wealth and independence; and, with all the proper respect which should be entertained for such men, it must be allowed that, for the acquisition and improvement of talents necessary for the higher offices, the passing occasionally through the inferior situations, and that principle of activity which animates men in the attainment, so much more than in the mere possession, of power and station, are much more favourable than the honours claimable by descent alone.”

The exertions made by the right honourable gentleman, in the endeavours he uses to prevail upon himself, and enable himself, to pay whatever respect it may be “proper” to pay to men of a certain description, present an edifying spectacle. It is what he has been trying at, and labouring at throughout the whole course of his paragraph (which, as the reader feels, is not a very short one,) and after all, without having any great success to boast of. Stationed, and for so long a course of time, close to the very door of the cabinet, though not yet on the right side of it—seeing the Duke of Portland every day, seeing the Earl of Liverpool, seeing the Lord Viscount Castlereagh, son and heir-apparent to the Earl of Londonderry, seeing the Earl of Westmoreland, seeing the Earl of Chatham, seeing Earl Camden, seeing the Lord Mulgrave—(seeing, in a word, almost everybody that is worth seeing) all of them not only “men of hereditary wealth and independence,” but even nobles of the land—among all those great men there is not one, no not one, whom he has found it possible to “hold in any higher estimation” than great numbers of those who engage in trade and manufactures. I mean, antecedently to the exertions betrayed or displayed in this present paragraph; and how small the progress is, which in this same paragraph he has succeeded in making, let this same paragraph itself declare.

His Majesty, for whom also the right honourable gentleman (I will be bound for him) has all along been labouring, and with at least equal energy, to entertain “all the proper respect which should be entertained for” him, all these great men, his Majesty, or those whose estate (as the lawyers say) he hath, were, at one time or other, at the pains of decking out with titles, and even some of them with ribbons: yet after all, and upon so good a judge of merit as the right honourable gentleman—one moreover who has had such good and such near opportunities of observation—so inconsiderable has been the effect that has been produced at all this expense—that “in the estimation” of the right honourable gentleman, they are still so unfortunate, every one of them, as not to occupy any higher place than is occupied by—alas! alas!—“great numbers of those who engage in trade and manufactures.”

Of the difficulties which he had to struggle with, in his endeavours to find or make any higher place for them, the magnitude is betrayed (shall we say?) or manifested, in every line: as is likewise, when all is over, the delicacy with which, to the very last, he avoided giving any direct expression to that conclusion, which having, in an unlucky moment, before the commencement of this paragraph, burst out unawares, had, throughout the whole course of it, been labouring once more to find vent and utterance. Of all these great men, if we may take the word of so good a judge, there is nothing to be made without money; nor, if it were “proper” to speak out, any great matter even with the help of it: especially in comparison of some other great men that he knows of, who, “for the acquisition and improvement of talents” necessary for the higher offices—including a consummate skill in the application of the four rules of arithmetic, and without wasting time upon any such speculative and theoretical science as logic, have had the benefit of “passing occasionally” (pour passer le tems, as the French say) “through the inferior situations.”

When the antagonists whom the right honourable gentleman has to contend with, are the offspring of his own genius, they give him little trouble.

In his 62d page, we find him setting to rights a set of men (but whether these were “among his reasonable and candid men” that he had just been meeting with, I cannot take upon me to be certain)—a set of men, however, of some sort or other, according to whose conception, the whole amount of what is levied on the people by taxes, goes to pay “sinecures and pensions:”—from which, if true, it would follow that, on so simple a condition as that of suppressing these nuisances—taxes, those still greater nuisances, might be cleared away at any time. But that any such conception is a misconception, and “consequently, although there were no sinecures or pensions, there would still be taxes,” he proves immediately beyond all dispute; and his antagonists, let them be ever so “reasonable,” have not a word more to say for themselves.

This misconception being set to rights in that his 62d page, here again in his 66th page we find him employed in instructing and undeceiving another set of men, or perhaps the same set in another dress, who are for “withholding remuneration” (meaning nothing less than all remuneration, howsoever ashamed they may be to say so) “for public services.”

A strange set of men they are, whoever they are:—and what is to be done with them? The course he takes with them (and if he does not convince them, he at least reduces them to silence) is, the setting them to think of a “principle,” which he knows of, and which, if such remunerations were withheld, “would,” he says, “be destroyed: and, the principle once destroyed,” “the community” (he concludes with an irresistible force of reasoning) “would be deprived of all its advantages.”

Now, if so it be that he really knows of any such men, it is pity but he had told us where some of them are to be seen: for as a raree-show they would be worth looking at. I, for my part, jacobin as I suppose I am—I, for my part, am not one of them. And this too I am happily enabled to prove: having, for a particular purpose, proposed some good round sums to be disposed of in this way; and that according to another plan, in my opinion of which, every day I live confirms me.

Of the only sort of thing which in his account,—at least while this paragraph lasts,—is of any value, viz. money, my plan (I speak now of that which relates to the present subject) goes somewhat further than any other which it has happened to me to see, in reducing the quantity to be administered at the public expense: and yet not even in this shape do I propose to withhold it, except in so far as the public service would be performed, not only cheaper but better without it: and, be the right honourable gentleman’s “principle” what it may, I disclaim altogether any such destructive thought, as that of “destroying” it.

All this while, a difficulty which has been perplexing me is—that of comprehending what sort of an aristocracy this new sort is, the discovery of which has been made by the right honourable gentleman, and to which, exercising the right which is acknowledged to belong to all discoverers, he has given the name of “an aristocracy of talent and of virtue.” Not that by any such description, if taken by itself, any great difficulty would have been produced, but that it is by the sort of relation, which is represented as subsisting between this sort of aristocracy and the sort of thing called money, that my perplexity is occasioned.

So far as money is concerned, “virtue,” according to what we have been used, most of us, to hear and read of at school, and at college, such of us as have been to college, consists, though not perhaps in doing altogether without money, at any rate in taking care not to set too high a value on it. But, with all its virtue, or rather in virtue of its very virtue, the aristocracy, which the right honourable gentleman has in view, is a sort of aristocracy, of which the characteristic is, that they will not (the members of it) do a stitch without money: and in their eyes, “remuneration” in any other shape is no remuneration at all. Why? Because in their eyes, to this purpose at least, nothing whatever but money is of any value.

We have seen who they are that must have been sitting for the right honourable gentleman’s kit-cat club—his “aristocracy of rank and of property:” where now shall we find the originals of his “aristocracy of talent and of virtue?”

Consulting the works of Dr. Beatson and Mr. Luffman, the only channels, the periodical ones excepted, through which, in my humble situation, a man can form any conception concerning any such “great characters,” I can find no others but Mr. Percival, Lord Eldon, Mr. Canning, Sir David Dundas, and a gentleman (right honourable, I presume) who, in Mr. Luffman’s Table of Great Characters, occupies at present his 15th column, by the description of “Mr. G. Rose.”

Meantime money—meaning public money—being, in the right honourable gentleman’s system of ætiology, the causa sine quâ non, not only of “virtue,” but of that “talent” which is found in company with virtue, and being on that score necessary to the constitution of that one of the two branches of his aristocracy, if it has two, or of the whole of it, if it is all in one,—what I would submit to him is—whether the task which, in entering upon this work, he appears to have set himself, will have been perfectly gone through with, till he has found means for securing to this talent-and-virtue branch of his “aristocracy,” a larger portion of his one thing needful than appears to have as yet fallen to its lot.

Running over, in this view, such parcels of the matter of remuneration as exceed each of them the amount of £10,000 a-year (the only part of the sinecure list a man can find time for looking over and speaking to in this view,) I find them all, or almost all of them, in possession of the “rank-and-property” branch: while the “talent-and-virtue” branch, starved and hide-bound, has found itself reduced to take up with the other’s leavings.

SECTION IX.

Plea 7.—

Need of Money for the Support of Official Dignity.

A seventh plea, and the last I have been able to find, consists in the alleged need of money for a purpose that seems to be the same with one which in other vocabularies is meant by the words “support of dignity:”* in the words of the right honourable gentleman (for, on pain of misrepresentation, the very words must be taken where words are everything,) “preservation of a certain appearance.”

“It is true,” continues he, “that magnanimity and genuine patriotic ambition will look for a nobler reward for their services than the emoluments of office; but in the present state of society, a certain appearance is essential to be preserved by persons in certain stations, which cannot be maintained without a liberal provision.”

From this paragraph, one piece of good news which we learn, or should learnat least, if it could be depended upon, is—that the time is now come when “magnanimity and genuine patriotic ambition will look for a nobler reward for their services than the emoluments of office.” So late as the moment when the last hand was put to the right honourable author’s last preceding paragraph, this moment of magnanimity was not yet arrived: down to that moment, had “remuneration” (meaning, as afterwards explained, in the shape of emolument) been withheld, “principle,” of some kind or other, would have been destroyed—and so forth.

Fortunate is this change for the country, and in particular, not a little so for the somewhat deficient plan here, by an unofficial hand, ventured to be proposed.* Here then we have it;—and from such high and competent authority,—that besides emolument, there is a something which, in the character of “reward for their services,” “magnanimity and genuine patriotic ambition” “will look for:” and (what is better still) this unspecified something is capable of being received, not only in the character of a reward, but in the character of a reward of “a nobler” sort than emolument—that sine quâ non, without which, till this paragraph of the right honourable gentleman’s was concluded, or at least begun upon, nothing was to be done.

Having this, I have all I want, and (as will be seen, and as I hope has even been seen already) even more than I mean, or have any need, to use.

Unfortunately for me, no sooner has the right honourable gentleman’s wisdom and candour and discernment obtained from him, and for my use, this concession,—than some others of his virtues, I know not exactly which, join hands and take it back again: and, though no otherwise than by implication, yet—so necessary to his argument is this implication—that, if he had taken it back in direct words, he could not have done more than he has done, if so much, towards depriving me of the benefit of it.

“But,” continues he—and now comes the retractation—“a certain appearance is essential to be preserved by persons in certain stations, which” (meaning probably which appearance) “cannot be maintained without a liberal provision.”

“In certain stations, a certain appearance:”—nothing can be more delicate,—nothing at the same time more commodiously uncertain,—than this double certainty. Meantime, if, in the meaning of the whole paragraph there be anything certain, it appears to me to be this:—viz. that on behalf of “the magnanimity and genuine patriotic ambition” which the right honourable gentleman has taken under his protection, what he claims is—that, in the account debtor and creditor, as between service and reward, this reward, which, not being emolument, is nobler than emolument (meaning, by nobler, if anything at all be meant by it, that which, in their estimate at least, is worth more) is to be set down as worth nothing: and accordingly, that the quantity of the matter of reward, which each official person is to have in the less noble, but more substantial and tangible shape, is to be exactly the same as if there were no other reward, either in their hand, or within their view.

To my plan, however, with its weak means of support, so necessary is the concession thus plainly, though but for the moment, made by the right honourable gentleman, that, with my good will, he shall never have it back again. Power, then, has its value: reputation has its value: and this, for the moment at least, has been admitted by Mr. Rose. By Mr. Rose’s evidence—by the weight of Mr. Rose’s authority—I have proved it. And now is my time for triumphing. For though neither he, nor any other right honourable gentleman, ever took his seat in any moderately full House of Commons, nor ever attended a quarter-sessions, without seeing before him gentlemen in numbers, whose conduct afforded a still more conclusive evidence of the same fact, than any verbal testimony they could have given, even though it were in black and white,—(magistrates, by the labour they bestow without emolument in the execution of their office—members, by the expense which, lawfully or unlawfully they have been at in obtaining their unemolumented seats,)—yet such is the weight of his authority, and to my humble plan, so strong the support it gives, that, having seized the fortunate moment, and got possession of the evidence, I can do no less than make the most of it.

Now, then (say I,) whatever it be that these valuable things are worth, so much, in the account as between reward and service, let them be set down for: nor shall even the ingenuity of the right honourable gentleman enable him to object any want of “fairness” to my estimate, leaving, as my plan does, to his protégé (the proposed official person himself) to make out his own estimate—to fix his own value upon the non-emolumentary part of his reward. The more he chooses to have in the more “noble” shape, the less may he be content to receive in the less noble shape: how much he will have of each, rests altogether with himself: and, so long as—with its bitters in one hand, and its sweets in the other—the office cannot upon my plan be put into his hands without his own consent, what ground for complaint anybody can make for him, is more than I can see.

“Certain appearance?” For what purpose is it that this certain appearance, whatever it be, is so “essential to be preserved?” Is it for commanding respect?

In common arithmetic—in the sort of arithmetic that would be employed in a plain man’s reasoning, be the article what it may—respect or anything else—if there be divers sources or efficient causes of it,—money, for instance, and power and reputation,—to command the necessary or desirable quantity, whatever be that quantity, the more you have from any one source, the less you need to have from the others, or from any other.

“In the present state of society” (for it is to that that the right honourable gentleman calls for our attention,) unfortunately for us vulgar, this arithmetic—this vulgar arithmetic—is not the arithmetic of “high situation:” it is not the arithmetic of St. James’s: it is not the arithmetic of the House of Lords: it is not the arithmetic of the House of Commons: it is not the arithmetic of the treasury: it is not the arithmetic of office,—of any office, by which a more convenient species of arithmetic can be employed instead of it. In particular, it is not (so we learn, not only from this paragraph, but from the whole tenor of the work of which it makes a part) the arithmetic of the navy treasurer’s office. According to this higher species of arithmetic, the more you have been able to draw from any one of these same sources, the more you stand in need of drawing from every other. Power, not indigence, is the measure of demand.

Have you so many hundred thousands of pounds in money? Having this money, you have power. Having this money with this power, it is “essential” you should have dignity. Having this dignity, you have that which requires money—more money—for the “support” of it. Money, power, dignity; money, power, dignity,—such, in this high species of arithmetic, is the everlasting circulate.

Are you in a “certain station?” Whatsoever you have power to spend, and at the same time inclination to spend, this is what the right honourable treasurer is ready to assure you, it is “indispensably necessary” you should spend. This is what, if your patience will carry you to the next section of this humble comment, or to the next page of the right honourable text, you will see stated by the right honourable “discharger of trusts and public duties,”—and in terms, of which, on any such score as that of want of distinctness or positiveness, no just complaint can be made.

SECTION X.

Plea 8.—

Concerning the late Mr. Pitt’s Expenditure—the Impropriety of Economy, how far proved by it.

Immediately upon the back, and, as it should seem, for the more effectual ascertainment of this so unfortunately uncertain, though double, certainty, comes the grand example already above referred to: that one example,—in which we are to look for whatsoever explanation is to be found—for whatever is not inexplicable, in the right honourable author’s theory. And this example proves to be the rate, and quantum, and mode of expenditure (private expenditure) observed and here stated by the right honourable gentleman in the instance of the late Mr. Pitt.

“That great statesman,” says he,* “who was ‘poor amidst a nation’s wealth,’ whose ambition was patriotism, whose expense and whose economy were only for the public, died in honourable poverty. That circumstance,” continues he, “certainly conveys no reproach upon his memory; but when he had leisure to attend to his private concerns, it distressed him seriously to reflect that he had debts, without the means of paying them, which he could not have avoided incurring, except from a parsimony which would have been called meanness, or by accepting a remuneration from the public, which his enemies would have called rapacity; for he had no expense of any sort that was not indispensably necessary, except in improvements in his country residence, where his house was hardly equal to the accommodation of the most private gentleman.”

That the logic of our right honourable author is not altogether so consummate as his arithmetic, is a suspicion that has been already hazarded: and here perhaps may be seen a confirmation of it.

The proposition undertaken by him to be proved was a pretty comprehensive one; its extent not being less than the entire field of office, considered in respect of the several masses of official emolument comprised in it. This it was that he took for his subject: adding for his predicate, that these incomes were and are not one of them sufficient,—not one of them, all things considered, sufficient to all purposes.†

For proof of this his universal proposition, in so far as it is in the nature of example to afford proof, he gives us one example: one example, and but one. The one office, in the instance of which, if insufficiency of emolument be proved, such insufficiency is to be accepted as proof, and that conclusive, of equal or proportionable insufficiency in the case of all the rest, is the office of Prime Minister: an office, the emolument of which is composed of the emolument attached to two offices, which, when the parliamentary seat of the official person is in the House of Commons, have commonly been, and in the instance of the said Mr. Pitt were, holden in one hand.

To complete the right honourable author’s argument, there remains for proof but one other proposition, and that is—the insufficiency of this compound mass of emolument in the instance of the said Mr. Pitt: and the medium of proof is composed of this fact; viz. that, being so in possession of this mass of annual emolument, he the said Mr. Pitt spent all this money of his own, together with no inconsiderable mass,—amount not mentioned,—of other people’s money besides.

Assuming, what nobody will dispute, that Mr. Pitt died in “poverty,” that which by his right honourable friend is observed and predicated of this poverty is, that it was “honourable” to him: which, being admitted or not admitted, the right honourable gentleman’s further observation, that it “certainly conveys no reproach to his memory,” shall, if it be of any use to him, be admitted or not admitted likewise.

Had this been all, there would certainly at least have been no dishonour in the case: a man who has no family, nor any other person or persons, having, on the score of any special relation, any claim upon his bounty, whether it be his choice to expend the whole of his income, or whether it be his choice to lay up this or that part of it, nobody surely can present any just ground for complaint.

But, in addition to that which was his own to spend or save, Mr. Pitt having spent money of other people’s in round numbers to the amount of £40,000 more: and this mode of expenditure having in so unhappy a way been rendered notorious, rich and poor together having been forced to contribute to make up to this division of the rich the loss they had been content to run the risk of, something was deemed advisable to be said of it.

In strictness of argument, some readers there may be perhaps, in whose view of the matter it might be sufficient here to observe—that, admitting the fact, unhappily but too notorious, of Mr. Pitt’s spending other people’s money—admitting this fact in the character of a proof, and that a conclusive one, that the mass of emolument attached to the two offices he filled was not sufficient for the one official person by whom those two offices were filled, the proof would not extend beyond that one pair of offices; and, the number of offices being unhappily to be counted by thousands, perhaps even by tens of thousands, and this highest of offices, in point of power, differing more widely from the general run of offices than perhaps any other that could have been found, the proposition has much the air of remaining in rather worse plight than if nothing in the character of proof had been subjoined to it.

On this footing might the matter perhaps be found to stand, if viewed in a point of view purely and dryly logical. But forasmuch as, notwithstanding, or rather by reason of, its profuseness, the expenditure of this one official person is by his right honourable friend held out as an example; not merely as an example for illustration, but as a pattern for imitation:—for imitation by official persons in general,—for imitation in respect of the quantum of emolument necessary to be allotted out of the taxes, and attached to their respective offices,—an observation or two shall here be hazarded, respecting the conclusiveness of the right honourable author’s argument with reference to this collateral and practical part of it.

The wry neck of the hero having in this way rendered itself too conspicuous to be concealed by any artifice, what was left to the panegyrist was to make a beauty of it. The expense of this repair has surely not been inconsiderable: for here it is not [Editor: illegible word] only, but morality and policy, that have been made to share in it. Our assent being secured for so unexceptionable a proposition, as that, in the circumstance in question, poverty is honourable, the next contrivance is to slip in and get the benefit of our assent extended to one other proposition, viz. (as if there were no difference) that spending other people’s money was honourable; and thus it is that our approbation is to be engaged for the practice and policy of giving encouragement to such honourable conduct, by tokens of parliamentary approbation bestowed at the public expense.

“Necessary,” with its conjugate “necessity,” and its near of kin “essential,” are words of no small convenience to the right honourable gentleman: of such convenience, that that thing (it should seem) could not be very easy to be found, which the same, being convenient to official persons in official situations, is not, by and in virtue of such convenience, under and by virtue of the right honourable author’s system of ontology, rendered “necessary.”

Even to a man, who had not quite so much as £8000 a-year of his own to spend,* a mode of expenditure, which, in whatsoever degree convenient, would (one should have thought) have presented the least satisfactory claim to the appellation of necessary, is that which consists in spending money of other people’s.

Two rocks the reputation of the hero found his course threatened by: two rocks, meanness and rapacity, one on each side: and the expenditure of other people’s money—this was the harbour in which, to avoid this Scylla and this Charybdis, he took refuge.

Had the expenditure of the hero been confined to the sum which by the competent authorities had been deemed sufficient, such limitation would, from the justice of the right honourable panegyrist himself, notwithstanding his “just partiality,” have received a gentle reprimand, couched under the term “parsimony,” and his imagination has found somebody else to call it meanness; had he, for those extraordinary services which we hear so much of, “accepted” as “a remuneration from the public,” any of those sinecures which, in such unhappy abundance, he saw lavished on men who could not produce so much as the pretence of even the most ordinary service; the same industrious and fruitful imagination has found him friends, in the character of “enemies,” to “call it rapacity:”—to avoid this charge of meanness it is, that he places himself in a state of dependence under traders of various descriptions,—the butcher, the baker, the fishmonger, not to speak of the political intriguer;—to avoid the charge of rapacity it is, that what he obtains from those people, he obtains from them on the pretence of meaning to pay them, knowing that he has not wherewithal, and nobly, constantly, and heroically determined never to “accept” it.

As to distress, while the distress confined itself to those plebeian breasts, this right honourable breast knew no such inmate: but when “some debts pressed so severely upon him as to render it necessary for some of his most private and intimate friends to step in and save him from immediate inconvenience,” when, in plain English, he had or was afraid of having executions in his house, then it was that the distress became contagious—then it was that “it distressed him seriously to reflect that he had debts.”

When—of a necessity, or of anything else, the existence being asserted by a gentleman, and as of his own knowledge, and that so right honourable a gentleman,—an obscure person—who, having no such honour, nor any chance of producing persuasion by any other means than such as his own weak reason may be able to supply—has, after, and notwithstanding, all this form of assertion, the misfortune to feel himself still unsatisfied, it is natural to him to look around him for whatever support may anywhere be to be found:—parliament—the opinion of parliament—should it be found on his side, will that stand him in any stead?

Such, as we have seen, is the opinion of Mr. Rose. But parliament—on this same point, what is it that has been the opinion of parliament? Why, the opinion of parliament is—that what Mr. Pitt had was sufficient: that more than he had was not necessary:—was not of that “indispensable necessity” which has been brought on the carpet, by the zeal, assisted by the imagination, of Mr. Rose.

Unfortunately for the right honourable panegyrist—unfortunately for his opinions—unfortunately for his assertions—this point, this very point did,—and on the very occasion he speaks of—come under the cognizance and consideration of parliament. The emolument which is found annexed to these two offices, both of which had been held at the same time by Mr. Pitt,—this emolument, had it been deemed insufficient for the “official man” in question—viz. for the species of official man,—would thereupon of course have received an augmentation: in the instance of this official person, the subject would have received those marks of attention, which have so frequently been asked for, and so constantly been given for asking for, in the case of the judges.

Was it, that by the case of this distinguished individual, any demand was presented for any greater mass of emolument than there was likely to be an equally cogent demand for, in the case of any successor of his in the same situation? It seems not easy to conceive a case, in which, all things considered, that demand can ever be so small. True it is, his private fortune was—his station in life considered—barely sufficient for independence. But, he had no wife—no child:—he was, in deed as well as in law, completely single: and, in the right honourable gentleman’s own arithmetic,—which on this head differs not much, it must be confessed, from the vulgar arithmetic,—the demand for money, on the part of the father of a family, is as the number of persons it is composed of.

Over and above his £8000 a-year, augmented, during half his political life, by his sinecure, to £12,000, what is it that he could want money for?—more money (for that is here the question) than would be wanted by or for any of his successors in power and office? Was it to buy respect and reputation with? Deserved and undeserved together, no man in his place, unless it was his father, ever possessed a larger share of those valuable commodities, than this second William Pitt. Had he been in the case of the good-humoured old driveller, who gave so much trouble to Pitt the first, and whom his Majesty’s grandfather was so loth to part with or suffer to be elbowed,—in that case there would have been on his part a great deficiency in those essential articles; and if, like seats, they had been an object of purchase, and public money the proper sort of money to be employed in the purchase, no small quantity of such money would, in that case, have been necessary.

In the way of experiment—in the endeavour to make this purchase, money, though the man’s own, and not public money, was, in the duke’s case, actually employed, and in memorable and still-remembered abundance: but how completely the experiment failed, is at least as well remembered.

To return to the deficiency of the sort in question, supposed to have been, on the more recent occasion, displayed in the same place. This deficiency, then,—such as it was and still is—parliament, in the case of Mr. Pitt, did not, so long as he lived, think fit to supply: at any rate, left unsupplied. What was done was—the giving a mass of public money—to the amount of £40,000 or thereabouts—among a set of people, names undisclosed, but said to be the deceased minister’s creditors. Friends remembered their friendships: enemies, now that the enemy was no longer in their way, forgot their enmity: friends and enemies vied in sentimentality—vied in generosity—always at the public expense: and a justification, yea, and more than a justification, was thus made, for the cases of the still future-contingent widow of Lord Grenville, and the then paulo-postfuture widow of Mr. Fox.

Should it here be asked why those trustees of the people chose to saddle their principals with the payment of debts, for which they were not engaged, and the necessity of which they themselves could not take upon themselves to pronounce,—my answer is—that if anything in the shape of an efficient, final, or historical cause will satisfy them, plenty may be seen already:—but if by the word why, anything like a justificative cause—a rational cause—a good and sufficient reason—be meant to be asked for, I for my part know of none. At the same time, for the support of the proposition that stands on my side of the argument—it being the negative—viz. that for no such purpose as that of encouraging and inducing ministers to apply to their own use the money of individuals, can it ever be necessary that money raised by taxes should be employed—for the support of any proposition to this effect—so plain does the proposition seem to me, that neither can I see any demand for a support to it in the shape of a reason, nor in truth should I know very well how to go about to find one. Not thus clear of all demand for support is the side taken by the right honourable gentleman. By his vote and influence whatsoever on that occasion was done, having been supported and encouraged, on him, in point of consistency, the obligation is incumbent: he stands concluded, as the lawyers say, in both ways: on the one hand, not having ventured to propose any correspondent addition, or any addition at all, to be made to the mass of emolument openly and constantly attached to the office, he is estopped from saying that any such extra expenditure was necessary;—on the other hand, having, in the case of the individual by whom that expenditure was made, concurred in the vote and act* passed for filling up, at the public charge, the gaps made by that same expenditure in the property of other individuals, he stands convicted by his own confession of concurring in charging the public with a burthen, the necessity of which could not be so much as pretended.

On this occasion, “may we not venture to ask,” whether this may not be in the number of those cases, in which gentlemen, honourable gentlemen, under the guidance of right honourable, have, in the words of our right honourable author, been “misled by mistaken ideas of virtue?” (p. 77.)

Be this as it may, by this one operation, which is so much to the taste of the right honourable gentleman—(not to speak of so many other right honourable, honourable, and even pious gentlemen)—two distinguishable lessons, may they not be seen given—two distinguishable lessons given to so many different classes of persons, standing in so many different situations? One of these lessons, to wit, to ministers; the other to any such person or persons whose situation might enable them to form plans for fulfilling their duty to themselves, by lending money to ministers.

To ministers an invitation was thus held out, to expend upon themselves, in addition to whatever money is really necessary, as much more as it may happen to them to be disposed so to employ, of that which is not necessary.

Thus far as to the quantum:—and as to the mode, by borrowing money, or taking up goods of individuals, knowing themselves not to have any adequate means of repayment, and determining not to put themselves into the possession of any such means.

To persons at large, an invitation was at the sametime held out to become intriguers; and, by seizing or making opportunities of throwing themselves in the way of a minister, to supply him with money, more than he would be able to repay on demand, and having thus got him in a state of dependence, to obtain from his distress—always at the expense of the public—good gifts in every imaginable shape:—peerages—baronetcies—ribbons—lucrative offices—contracts—assistance in parliamentary jobs,—good things, in a word, of all sorts, for which, no money being paid or parted with, neither the giver nor the receiver would run any the slightest risk of being either punished, or in any other way made responsible.

By a loan, though, for example, it were but of £5000, if properly timed—and that on both occasions—first as to the time of the administering the supply, and then as to the time of pressing for repayment,—that, may it not every now and then be done, which could not have been done by a gift of £10,000? How often have not seats, for example, been in this way obtained—and this even without any such imputation as that of the sin, the venial sin, of parliamentary simony?

In virtue of the invitation thus given by the magnanimity and generosity of parliament,—an invitation open at all times to the acceptance of persons to whom it may happen to find themselves in the corresponding situations—who is there that does not see, how snugly the benefit of bribery may be reaped on both sides, and to any amount, without any of the risk?

A banker is made a lord. Why is a banker to be made a lord? What is it that the banker ever did, that he is to be made a lord? A merchant is made a lord. Why is a merchant to be made a lord? What is it that the merchant ever did, that he is to be made a lord?—These are among the questions which are in themselves as natural, as the answers, true or untrue, might be unpleasant to some and dangerous to others.

We have heard, many of us, of the once celebrated Nabob of Arcot and his creditors: and the mode in which their respective debts were to an as yet unfathomed extent, contracted: those debts, which, in so large a proportion, and to so large an amount, just and unjust together, in name the expiring Company, and in effect the whole body of the people, have paid, or, spite of the best possible discrimination, will have to pay.

By the example set, and lesson held out, by the virtue of the right honourable gentleman, and his right honourable and honourable coadjutors, the policy of Arcot, was it not thus sanctioned and imported into Great Britain? “Ministers, plunge your hands as deep as you can into other people’s pockets: intriguers, supply profuse and needy ministers with whatever they want, and make the most of them: we will be your sureties; our care it shall be, that you shall not be losers.”

Against the opinions of so many great characters—such has been my temerity—over and over again have I laboured to prove, I know not with what success, that money is not the only coin in which it may happen to a public man to be willing to take payment of the public for his labour: and that power and reputation,—though they will not, like shillings and halfpence, go to market for butter and eggs,—yet, like Exchequer bills, within a certain circle, they are not altogether unsusceptible of a certain degree of currency. Of the truth of this proposition, the Mr. Pitt in question affords at least one instance.

It proves indeed something more: for, in so far as purposely forbearing to receive what it is in a man’s option to receive, is tantamount to paying,—it proves that, in the instance in question, the value of these commodities was equal to that of a very considerable sum of money, in round numbers, worth £40,000—at any rate, worth more than £39,000.

Not that in the eyes of the hero, money had no value: for it had much too great a value: it possessed a value greater than the estimated value of common honesty and independence.

He loved money, and by much too well: he loved it with the love of covetousness. Not that he hoarded it, or put it out to usury. But there are two sorts of covetous men: those who covet it to keep it, and those who covet it to spend it: the class he belonged to was this coveting-and-spending class.

Yes:—that be did:—Pitt the second did love money: and not his own money merely, but other people’s likewise: loving it, he coveted it; and coveting it, he obtained it.

The debt which he contracted was so much money coveted, obtained, and expended, for and in the purchase of such miscellaneous pleasures as happened to be suited to his taste. The sinecure money which he might have had and would not have, was so much money expended in the shape of insurance money on account of power: in the purchase of that respect and reputation, which his prudence represented as necessary to the preservation of so valuable an article against storms and tempests from above. Sinecure money, to any given amount, the hero could have got for himself, with at least as much facility as for his right honourable panegyrist; but the respect and the reputation were defences, which in that situation could not be put to hazard. Of the battles he had to fight with the sort of dragons commonly called secret advisers, this bare hint is all that can be given by one who knows nothing of anybody or anything: his right honourable Achates, by whom he must (alas! how oft!) have been seen in a tottering and almost sinking attitude,—more particulars could doubtless be given, by a great many, than by a gentleman of his discretion it would . . . . (unless it were in a posthumous diary, for which posterity would be much obliged to him) be “useful on his sole authority . . . . to enter into any detail of.” It was to enable virtue to rise triumphant out of all these trials, that the amount of all this sinecure money was thus expended, and without having been received.

SECTION XI.

CONCERNING INFLUENCE.

On the subject of influence (page 74,) what the right honourable gentleman admits, is—that owing to the greatly increased revenue, and all the other augmented and “accumulated business of the state,” some increase has, though “unavoidably, been occasioned in it,” viz. by “increase of patronage.” At the same time, notwithstanding this increase, yet, in point of practice, the state of things, if we may trust to his conception, is exactly as if there were no such thing at all as influence. How so? Why, for this plain reason, viz. that “the influence created by such means is infinitely short of what,” viz. “by the measures of economy and regulation to which recourse has been had”—“has been given up.”

Thus far the right honourable author. But in the humble conception of his obscure commentator, the question between the two quantities, one of which is, in the hands of the right honourable accountant, multiplied by one of those figures of rhetoric, which, in aid of the figures of arithmetic, are so much at his command—multiplied in a word to “infinity”—this question is not, on the present occasion, the proper one. In regard to influence, the question which, with leave of the public, the obscure commentator would venture to propose—as and for a more proper one, is—whether, for any existing particle of this influence, any preponderant use can, in compensation for the acknowledged evil consequences of it, be found? and if not, whether there be any, and what, quantity of it left remaining, that could be got rid of? Understand, on each occasion, as being a condition universally and necessarily implied—without prejudice in other respects,—and that preponderant prejudice—to the public service.

As to these points, what appears to me, with submission, is—that, without travelling out of this the right honourable gentleman’s own work, an instance might be found of a little sprig of influence, which, without any such preponderant prejudice to Mr. Reeve’s tree, might be pruned off.

This work of his (I mean Mr. Rose’s) has for its title—“Observations respecting the Public Expenditure, and the Influence of the Crown.”

But unfortunately, as, in due place and time, the candour of the right honourable gentleman himself, in effect, acknowledges, these observations of his—and from so experienced an observer—are all on one side.

On the subject of expenditure, out of 79 pages, 61 have been expended in showing us what retrenchments have been made, and how great they are. Are they indeed so great? So much the better: but even yet, considering that if we may believe the right honourable gentleman himself (p. 62,) the whole revenue of Great Britain is “more than £60,000,000 a-year,” let the retrenchments have been ever so great, the demand for further retrenchment, wheresoever it can be made, without preponderant prejudice to the public service, seems by no means to be superseded.

Subject to that necessary condition, is there any such further retrenchment practicable? This is exactly what the right honourable gentleman has not merely avoided, but positively refused to tell us.

From first to last, this work of his has, according to the author’s own account of it, but one aim; and that is, by showing how great the retrenchments are that have been made already, to stop our mouths, and prevent our calling for any more. Is it then true, that in this way all has been done that ought to be done? Even this, not even in terms ever so general, will he vouchsafe to tell us. “To what extent or in what manner it may be proper to press further retrenchment, the author,” says he, p. 62, “has not the remotest intention of offering an opinion: his view has been clearly explained.”

Looking for the explanation, the clearness of which is thus insisted on, I find it, if I do not mistake, in his last preceding page but one, viz. in p. 60, in which, speaking of this his work by the name of “the present publication,”—“In endeavouring to set right the public opinion on this subject, the performance of an act of justice to any administration, is,” he says, “but a small part of its use; a much more important consideration is, its effect in producing that salutary and reasonable confidence, which gives the power of exertion to the government, and that concurrence which seconds its exertions among the people.”

Thus far the right honourable author. For my own part, if my conception concerning a government’s title to confidence be not altogether an erroneous one, this title depends in no inconsiderable degree on its disposition “to press further retrenchments:” (p. 62.) I mean of course, in so far as, in the judgment of that government, they are not otherwise than “proper” ones. Yet this the right honourable gentleman—a member of this same government, and that in the very next rank to the highest, and receiving (besides sinecure money) no less than £4000 a-year for being so, peremptorily—and, as we have seen, of his own accord,—refuses to do.

He will not do any such thing; and why not? On this point we might be apt to be at a stand at least, if not at a loss, were it not for the lights with which, in another page (p. 74) the right honourable author himself has favoured us. His “opinions” on the subject, he there acknowledges, are “strong ones;” but strong as they are, or rather because they are so strong, he will not let us know what they are; because “on his sole authority,” that is, unless other opinions that in the scale of office stand yet higher than his, concurred with his, “it would not be useful:”—there would be no use in it. No use in it? what! not on a subject of such vital importance—when, for the declared purpose of “setting right the public opinion on this subject,” a right honourable author, who knows all about it, takes up the pen, can it be that there would be no use in speaking what he thinks is right? and as much of it as he has to speak? No use in his speaking impartially?—in speaking on both sides, and on all sides, what he thinks?

But not to go on any further in thus beating the bush, may we not in plain English venture to ask—at the bottom of all his delicacy, can any other interpretation be found than this, viz. that by those, for whose defence and for whose purposes—and, to come to the point at once—under whose influence this work of his was written, his speaking as he thinks, and what he thinks right—his speaking out on both sides, would it in his own persuasion have been found not endurable?

If so, here then we have a practical illustration and development of a number of preceding hints. Here we see the character—here we see one effect and use—of that “aristocracy of talent and virtue” with which, in the account of remuneration, nothing but money will pass current—nothing but money is of any value—and which constitutes so necessary an addition to the “aristocracy of rank and property.”

Here we see what is, and what we are the better for, the fruit of “that principle of activity,” (p. 66,) which animates men in the attainment, so much more than in the mere possession of power and station, “and of that amusement, which, for the acquisition and improvement of talents necessary for the higher offices, gentlemen have given themselves, in passing occasionally through the inferior situations.”

“Of the unpopularity and ridicule that has so often been attempted to be fixed on the word confidence,” the right honourable gentleman has, as he is pleased to inform us, according to his own statement (p. 61,) had “some experience.” One little item, to whatsoever may have been the stock laid up by him of that instructive article, he may find occasion to make. To that sort of confidence which is “unthinking and blind,” this “unpopularity and ridicule,” he appears to look upon as not altogether “inapplicable,” nor consequently the sort of “attempt” he speaks of, viz. that of fixing it on the word confidence, as altogether incapable of being attended with success.”

But can anything be more “unthinking and blind” than that confidence which should bestow itself on an official man, howsoever right honourable, who, in treating of a subject confessedly of high national importance, and after furnishing, in favour of one side, whatsoever information his matchless experience, his unquestioned ingenuity, his indefatigable industry, can rake together,—and feeling, on the other side of his mind, “opinions”—and those “strong ones,” nor doubtless unaccompanied with an adequate knowledge of facts—of those facts from which they receive their existence and their strength—should refuse—deliberately, and peremptorily, as well as spontaneously, refuse—to furnish any the least tittle of information from that other side.

Eloquent and zealous in support of profusion, mute when the time should come for pleading in favour of retrenchment, not without compunction let him behold at least one consequence. Destitute of all competent, of all sufficiently qualified, of all officially qualified, advocates—deserted even by him who should have been its solicitor-general, thus it is that the cause of economy is left to take its chance for finding here and there an advocate among low people, who have never been regularly called to this high bar: interlopers, who, destitute of all prospect of that “remuneration” which is the sole “principle of activity that animates men in the attainment of power and station” (p. 66.) destitute of the advantage of “passing occasionally through even the inferior situations” (p. 66,) are destitute of all “talent,” destitute of all “virtue,”—and whose productions, if, for the purpose of the argument, they could for a moment be supposed capable of contributing, on the ground here in question, anything that could be conducive to the public service, would, one and all, be so many effects with out a cause.

SECTION XII.

CONCERNING PECUNIARY COMPETITION—AND THE USE MADE OF THE PRINCIPLE.

Before the subject of influence is dismissed, a word or two may, perhaps, have its use, for the purpose of endeavouring to submit to the consideration of the right honourable panegyrist, an article of revenue, viz. crown lands, which neither on his part, nor on the part of his hero, seems to have received quite so much attention as could have been wished.

To the purpose of the present publication, a circumstance that renders this article the more material is—that it may contribute to render more and more familiar to the eye of the reader a principle, on a due estimation of which the plan hereafter to be proposed depends for everything in it, that either promises to be in its effect eventually useful, or is in its application new.

Economy and purity—reduction of expense, and reduction of undue influence—in these may be seen the two distinguishable and distinguished, though intimately connected, objects, to which, speaking of the principle of competition, our right honourable author speaks of it as having been meant to be made subservient, and as having accordingly been made subservient, in the hands of Mr. Pitt—(p. 26.)

“Mr. Pitt,” he informs us, p. 25, “looking anxiously to reforms, effected many even considerable savings—and at the same time sacrificed an influence as minister, much more dangerous than any possessed by the crown, because more secret and unobserved; the extent of it indeed could be known only to himself and to those in his immediate confidence. We shall state,” continues he, “the measures in their order,—beginning with loans and lotteries,—proceeding with private contracts, and closing this part of the account with the profit derived from the mode irrevocably established respecting the renewals of crown leases. In each of which cases, the influence diminished was not only extensive, but was obviously in its nature more objectionable than any that could be acquired by the disposal of offices; as the effect of the former was secret and unobserved, whereas the latter is apparent and generally known.”

Coming to crown lands (p. 34.) “The last head of saving by management,” says he, “is under that of the estates of the crown. The act of the 1st of Queen Anne,* continued at the beginning of each succeeding reign, for limiting grants of crown lands to 31 years, put a stop to the actual alienation of the property of the crown; but, in its operation, had the effect of greatly adding to the influence of it, and certainly afforded no protection whatever to its revenues, as will be seen in the note below.† In reigns antecedent to that of Queen Anne, when grants were perpetual, the persons to whom they were made became immediately independent of the crown, and not unfrequently gave very early proofs of that independence: whereas, by the measure adopted on the accession of the Queen, every grantee, or the person representing him, became dependent on the minister for a renewal of his lease, for which applications were generally made at such times, and on such occasions, as were thought to afford the best hope of their being attended to, on terms favourable to his interest.

“Under this system Mr. Pitt, on coming into office, found the whole landed property of the crown, and the income arising from if, in every way, very little exceeding £4000 a-year.

“He therefore, after long inquiries, and most attentive consideration, applied a remedy in 1794, when an act was passed,‡ by which it is provided that no lease shall be renewed till within a short period of its expiration, nor till an actual survey shall have been made by two professional men of experience and character, who are required to certify the true value of the premises to the treasury, attested on their oaths. No abuse can therefore take place, nor any undue favour be shown, under the provisions of this law, unless surveyors of eminence in their line shall deliberately perjure themselves, or a treasury shall be found bold enough to grant leases, or renew them, at a less value than shall be certified to them, which could not escape immediate detection, as there is a clause in the act, requiring an account to be laid before parliament annually of what leases or grants shall have been made in the year preceding; for what terms or estates; the annual value, as returned on oath by the surveyors; the annual value of the last preceding survey; what rents shall have been reserved, or what fines paid; and upon what other considerations such leases shall have been respectively made.

“More strict provisions to guard against any evasion of the law could hardly have been devised.”

Thus far our right honourable author: a word or two now from his obscure commentator.

Where, having determined with himself to obtain for public property the best price that is to be had, Mr. Pitt pursues that principle, my humble applause follows him: but when, without sufficient reason, he turns aside from that or any other principle, then my applause stops: applause, whatever in that case perseveres in following him, will be of that sort which comes from copartners and panegyrists.

When government annuities were the commodity to be disposed of, then it was that it was the choice of Mr. Pitt to have the best price: then it was that, choosing to have the best price, he adopted the mode, and the only mode, by which that effect can be produced.

When leasehold interests in crown lands were the commodity to be disposed of, then it was that it was not the choice of Mr. Pitt to have the best price. Then it was, accordingly, that, for fear of having the best price, care was taken not to employ the mode, the only mode, by which any such effect can be produced.

To avoid giving birth to the undesirable effect in question, the expedient employed was (we see) “an actual survey, made by two professional men of experience and character, who are required to certify the true value of the premises to the treasury, attested on their oaths.”

“Under the provision of this law,” one thing the right honourable gentleman endeavours to persuade us of (p. 35)—is, that “no abuse can take place, nor undue favour be shown.” Why not? Because (says he) no such effect can take place “unless surveyors of eminence in their line shall deliberately perjure themselves or”—something else which he mentions shall take place, and which, admitting the improbability of it, I shall not repeat here.

As to perjury, the word is a strong word, and to the purpose of causing the reader to suppose that the security provided by it is a strong security, more conducive than any real lover of sincerity can be well pleased to find it. But, from the pen of a veteran in office, and in offices, and in such offices, to whom it cannot be altogether unknown, to how prodigious an extent the people of this country are made deliberately and habitually to perjure themselves—and how fond, under the guidance of priests and lawyers, the legislation and jurisprudence of this same country have been, of causing men, always without any the smallest use, deliberately to perjure themselves* —it is not without pain that a man, who has any real dislike to perjury, can behold this security held up to view in the character of a real one.

Cases there are (it is confessed with pleasure) in which this alleged security is an efficient one: as for instance, where testimony to a matter of fact is to be given, vivâ voce, in an open judicatory, and under the check of cross-examination: not that even in that case it is to the ceremony that the efficiency would be found ascribable, but to the cross-examination, and the publicity, with or without the eventual punishment. But in the case here in question, not one of all those elements of efficiency is to be found. The sort of perjury which the right honourable gentleman endeavours to make us take for a punishable offence, suppose it, for argument’s sake, committed—was ever one instance known of a man being prosecuted for it as for perjury? Great would be my surprise to hear of any such case. Would so much as an indictment lie? I have not scarched, nor to the present purpose does it seem worth while. Gross indeed must be the case, strong and clear; stronger and clearer than it seems in the nature of the case to afford—the proof by which, upon any such indictment, convinction must be produced.

Few, it is evident, are the sorts of articles—lands, houses, or any other such articles, coming under the head of crown lands, being unquestionably not of the number—few, about the value of which it may not happen to “surveyors of eminence, experience, and character” to entertain real differences of opinion; and moreover, and without the smallest imputation on that “character,” much more without the possibility of suffering as for perjury, to agree in assigning such a value, as to a very considerable amount—according to circumstances, say 5, 10, 12, 15, 20, 50 per cent. (in short, one knows not where to stop) greater or less than what in their opinions respectively is the true one.

The real value of the premises is the joint result of some half dozen (suppose) of circumstances on each side: whereupon, on one side (suppose again) this or that little circumstance, somehow or other, fails of being taken into the account. Unless the human understanding were that perfect kind of machine which everybody acknowledges it not to be, who could think of speaking of it as importing so much as a speck upon a man’s character, that any such little oversight has taken place? Meantime, the profit by the oversight may amount to thousands of pounds in any number.

Unfortunately for economy, still more unfortunately for uncorruption, the sort of contract here in question is one of those in which, with a pre-eminent degree of force, interest and opportunity join, in securing to the subject of valuation a false or under-value. What the one party, viz. the proposed lessee wants, is money; what the other party, the “discharger of duties and public trusts,” wants, is influence. If the valuation be deficient, then, in proportion to the deficiency, both parties have what they want. Under a state of things so favourable to mutual accommodation, let any one, who feels bold enough, undertake to set a limit to the loss liable to be produced to the public by the substitution of this mode of sale, to the only one which is capable of finding out the real value. In a fancy article, such as a villa, or a site for a villa, cent. per cent. may be below the difference. Ten per cent.—to put, for argument’s sake, a certain amount for an uncertain one—will surely be regarded as a very small allowance.

In this ten per cent., then, may be seen the amount of the saving, or the acquisition, call it which you please, which on the occasion is question might have been made to the public, and was not made.

Thus much as to revenue. Then as to influence, “some judgment,” as Mr. Rose observes, p. 37, “may be formed by observing, that of the persons holding crown leases when the act was passed, upwards of eighty were members of one or the other house of parliament; and it is hardly necessary to add,” continues he, “that in the cases of other lessees, the parties, who might have the means of doing so, would naturally resort to solicitations of friends for obtaining the minister’s favour.”

Now, in the picture thus drawn of the state of the case, as it stood at that time—drawn by so experienced and expert a hand—so far as concerns influence, I, for my own part, till some distinct ground of difference is brought to view, cannot but see a picture equally correct of the state of the case as it stands at this moment; at this moment, viz. after and notwithstanding—not to say by reason of—the reform thus lauded. So far indeed as concerns revenue, I cannot doubt but that a very considerable change—and, so far as it goes, a change for the better, has been made; a change, for the amount of which I take of course the account given of it by Mr. Rose. But, so far as concerns influence, what I should not expect to find is, that any change, worth taking into account, had taken place. “Eighty,” according to the right honourable gentleman, is the number of members so circumstanced at that time; eighty,—or rather, from that increasing division, which landed property, where it will serve for building, or even for sites of villas, naturally admits of, more than eighty—is the number which I should expect to find at present; not to speak of expectants, for whom, where the purpose of the argument requires it, the right honourable arguer knows so well how to take credit. For convincing an honourable or right honourable gentleman of the superiority of one ministry over another, ten per cent. upon any given sum will not, it is true, serve so effectually in the character of a persuasion, as thirty per cent.: but wherever the ten per cent. suffices, the abolished twenty per cent. would have been but surplusage, since thirty per cent. could do no more. The case of the villa contiguous to Chelsea Hospital—a case which, though it happened so long ago as the last session, is not yet, it is hoped, altogether out of recollection—may serve, and as well as half a hundred, for clearing and fixing our ideas on this subject. From that case may be formed some judgment, whether the impossibility of “abuse and undue favour” is quite so near to complete, as it would be for the convenience of the right honourable gentleman’s acknowledged purposes that we should believe it to be.

All this while, a circumstance which has contributed in no small degree to that composure and tranquil confidence, of which my readers, if I happen to have any, may on this occasion have observed the symptoms, is—a surmise in which I have all along been indulging myself,—viz. that between the opinions of the right honourable author and those of his obscure commentator there does not, on this occasion, exist at bottom any very considerable difference.

“More strict provision to guard against any invasion of the law could hardly,” says the right honourable author, “have been devised.” But it will be for the reader to judge, whether the law in question be quite so well guarded against evasion, as, by this saving word hardly, the argument of the right honourable gentleman is guarded against any such impertinent charge as that of having said the thing that is not. Neither on this nor on any other occasion, could it easily have escaped a sagacity such as his, that a mode of sale, the sure effect of which is to perpetuate a constantly inferior price, is not quite so favourable either to increase of revenue or to diminution of influence, as a mode of sale, the sure effect of which is—to obtain, on each occasion, the very best price.

Pecuniary competition—auction—having, and in other instances to so great an extent—by this same hero, and with the special applause of this same panegyrist, been employed, as and for the best-contrived mode or instrument for obtaining, for such articles as government has to dispose of, the very best price—having been applied, and with so much success, in the case of government annuities—having been applied, and with so much success, in the case of contracts for stores—(for when there is no fraud, it is in form only, and not in effect, that, in this case, there is any difference between competition and auction in the common acceptation of the word)—and, moreover, in the case of the very sort of article here in question—in the case of lands—sale of leasehold interests presenting themselves to view in every newspaper, and even letting by auction in the first instance having nothing new in it, it would be a most instructive explanation, to us whose station is without doors, if in his next edition the right honourable author would have the goodness to inform us how it happened, that when, in the course of her voyage, economy had reached the latitude of the crown lands, she all of a sudden stopped short, and, instead of the best instrument for fishing out the best price, took up with so weak and ill-contrived an one. Is it that in the case of lands, auction is less well adapted than in the case of goods to an obtainment of the best price?—less well adapted to the obtaining that best price for leasehold interest in lands, to be paid for in money, than for money to be paid for in goods? On the contrary, in the case of goods, to be supplied to government by contract, as in the case in question, with the benefit of competition, the right honourable gentleman, if not already informed, might with little difficulty be informed of cases upon cases, in which the rigour of the principle of competition receives a very convenient softening, from expedients which have no application in the case of lands.

In default of such full and authentic lights, as nothing short of the experience, joined to the condescension, of the right honourable gentleman, would afford us, it may be matter of amusement at any rate, if of nothing better,—to us whose station is on the outside of the curtain,—to figure to ourselves, in the way of guess and pastime, what, on the occasion in question, may have been passing behind it.

Before so desirable a head of reform as that in question could be brought even into the imperfect state dressed up as above by the ingenuity of our right honourable author, “long inquiries, and most attentive consideration,” we are informed by him, p. 35, took place. Of these “long inquiries,” no inconsiderable portion, if one who knows nothing may be allowed to guess, were naturally directed to so desirable an object as that of knowing what, in case of a change of the sort proposed, the eighty members, of whom we have seen him speaking, would be disposed to think of it: and of the “attentive consideration,” no inconsiderable portion (it is equally natural to suppose) was bestowed upon the objections, which an innovation of this sort could not but have given birth to in so many honourable and right honourable minds.

With a set of hobgoblins, known among schoolboys by the collective appellation of the secret advisers of the crown—and of whom certain sceptics (such has been the growth of infidelity!) have of late (it seems) been found Arians or Socinians enough to question the existence,—our author’s hero, there cannot be any doubt, supposing them always to have had existence, must have had to fight, on this, as on many other occasions, many a hard battle. Of such warfare, the result, on the occasion here in question, seems to have been a sort of compromise. To restraint upon the dilapidation of the revenue, Fee, Faw, Fum could be, and accordingly were brought to submit;—and thus it was that sale, grounded on collusive valuation, was substituted to absolute gift. To the diminution of influence, Fee, Faw, Fum could not, and would not be brought to submit: they would have gone off to Hanover or to Hampshire first:—and thus it was that sale, grounded on collusive valuation, was preferred to sale for the best price.

PAPER VII.

OBSERVATIONS ON MR. SECRETARY PEEL’S HOUSE OF COMMONS SPEECH,

21^st MARCH 1825, INTRODUCING HIS POLICE MAGISTRATES’ SALARY RAISING BILL, (Date of Order for Printing, 24th March 1825.)

also on the

ANNOUNCED JUDGES’ SALARY RAISING BILL, AND THE PENDING COUNTY COURTS BILL

1.Clauses six: of minor importance, the four last: of major, the two first: whereof the second for establishing the measure: the first (the preamble) for justification of it.

Measure, £200 a-year added to the salaries of the existing thirty police magistrates. Original salary, £400—see below. Last year but two (3 G. IV. c. 55,) so says clause 1st,—£200 added to it. Already comes the demand for as much more.

A reason is wanted—and such an one as shall amount to a justification. Ready at hand is a complete one, and not less concise than complete; one single word—expediency. “And whereas it is expedient to increase the said salary.” The House has standing orders—Parliament has standing reasons: at any rate it has this one, and this one is the standing representative of all others. To the wise, and from the wise, this one word is sufficient.

For this second £200 it is all-sufficient; whether it might have served equally for the first, time for search is wanting. But I would venture a small wager, that on that occasion it did so serve: it will serve equally well for any number of others. It is made of stretching leather. It works well, and wears well: it will be as good a thousand years hence, as it is at present. That which is expedient is expedient. What can be more expedient than expediency? . . . . I could not refrain looking. I should have won my wager. The expediency reason is not indeed applied exclusively to the salary-raising clause (No. 6,) but it shines in the preamble; and in that clause the lustre and virtue of it extends to all the others.

According to usage, the sum is left in blank in the bill: according to usage, the blank is filled up by the eloquence of the minister.

After having thus done the one thing needful, and stamped the measure with intelligibility, he might not perhaps have done amiss, had he left the justification of it to the wisdom of parliament, as above.

That injustice may be completely avoided, misrepresentation as far as possible, the Times and the Morning Chronicle—two of the most accredited sources of information—have upon this occasion been drawn upon, and the matter divided into numbered paragraphs; and, for the grounds of the respective observations here hazarded, reference has, by means of the numbers, been made to those several paragraphs.

Original salary, £400 a-year (see below.) Last year’s addition, £200 a-year. Existing, what? £600. Magistrates, thirty. Aggregate of the addition, £6000 a-year: aggregate of the now proposed addition, another £6000 a-year; together, £12,000. Nature of the demand clear enough: not to speak of reason, which seems altogether out of the question: not so the alleged grounds of it. To tread them up has been tread-wheel work. Result, what follows.

Evils proposed to be remedied, deficiencies: 1. Deficiency in appropriate intellectual aptitude; 2. Deficiency in time employed in attendance. As to aptitude, during the £400 a-year (so says No. 2,) incompetence total. Thus far aptitude: the same certificate may, without much stretch of inference, be made to apply to quantity of attendance. These are the evils for which the second £200 a-year, multiplied by 30, is to suffice as a remedy. The first dose was administered two or three years ago: already it has been found insufficient, else why apply for another? But that which a single dose cannot effect, another dose may; and if this does not, others and others after them are at hand from the same shop.

For the remedying of these evils, the reality of them being supposed, begin as above and end as above:—the means provided by the wisdom of parliament.

That wisdom having thus exhausted itself,—for ulterior remedies, how little soever needed, comes, as will be seen, an additional supply, provided by administration: provided by the genius of Lord Sidmouth, who invented them; by the magnanimity of Mr. Peel, who disdained not to adopt them. They are—future exclusion of all non-barristers: ditto of all barristers of less than three years’ standing. I speak here, and of necessity, of the two secretaries, late and present. For it is by Mr. Peel and his successors in that office, if by anybody, that these remedies are to be applied. Parliament is to know nothing of them: parliament is not to be trusted with the application of them.

Viewing all this wisdom and virtue through the medium of the greatest-happiness principle (a principle which has been accused of giving to financial objects rather a yellow tinge,) I have the misfortune of seeing the whole speech in a considerably different point of view:—(1) The alleged evils—the inaptitude, and the non-attendance—neither of them proved by it. (2) Supposing the disorder proved; the supposed remedy, parliamentary and ministerial, as above, inefficient to any good purpose; efficient to a very bad purpose; but both these evils, though not proved by the right honourable secretary, I admit, and, as it seems to me, probabilize, the existence, (3) at the same time, of both. (4) So doing, I venture to propose a remedy, which, for reasons assigned, seems to me a promising one—and the only one which the nature of the case admits of, without some change in the whole judiciary system, such as in part has been, and with large amendments will again be, submitted to the public, but which it would be altogether useless, as well as impracticable, to insert here.

Alleged Evil 1.—Deficiency in appropriate aptitude. Here I take upon me to say not proved. Here I am all confidence. Subpœna in hand, I call on the right honourable secretary. In No. 11 stands his evidence—“Present police magistrates” (per Times) “of the highest personal respectability.” Per Morning Chronicle—“their knowledge, experience, and respectability,”—(all thirty of them)—“and their services had already proved the importance of the duties they had to fulfil.” Per Times, again—“They performed their duties” (and that not only to the satisfaction of the right honourable secretary, but) “to the great satisfaction of the country.”

This being unquestionable, what is become of the evil, and what need can there be of a remedy?

What a scene is here! The right honourable gentleman at daggers-drawn with himself! How to account for it? One way alone I can think of, and it is this:—the force of his eloquence overpowered his memory. While, with so much pathos, he was lamenting, on the part of a certain set of persons, the deplorable want of aptitude,—he forgot that, before he sat down, he had to deliver, in behalf of the selfsame persons, a certificate of accomplished aptitude. When at last the time had come for the delivery of this certificate, he had already forgot how large a portion of his speech had been employed in giving contradiction to it. To answer the purpose for which they are made, what must be the complexion of the assertions of inaptitude uttered with such entire confidence? They must be at once true and false: true, for the purpose of proving the necessity of the additional bonus; false, for the purpose of entitling these thus meritorious and actually existing persons (for this slides in sub silentio) to receive, before any of their future contingent colleagues have been in existence to receive it, a full share of the benefit of it. Admit him to be in possession of the power of giving truth to a self-contradictory proposition, the right honourable secretary proves this his probandum, and thus far justifies his measure: refuse him this accommodation, he stands self-confuted, and his argument is somewhat worse than none.

Were ministerial responsibility anything better than a word, the task the right honourable gentleman had charged himself with was (it must be confessed) rather a delicate one. English punch, according to the Frenchman in the jest book, is a liquor of contradiction: a compound of a similar complexion was that which, on occasions such as the present, a situation such as the right honourable secretary occupies, gives him in charge to mix up, for the entertainment of Honourable House. Except in the case of an underling whose character is too offensively rotten not to make it matter of necessity to suffer him to be thrown overboard, for all official men in general—high and low—there is but one character: a general character for excellence, tinged here and there with a little difference of colour, corresponding to the nature of the department. The idea looks as if it were taken from the old chronicles: where, with decent intervals, one portrait serves for half-a-dozen worthies: one town for the same number of towns, and so as to battles and executions. Time and labour are thus saved. This universal character puts one in mind or an ingenious document I have seen, sold under the title of the Universal Almanac. A copy of it has been supposed to be bound up with every cabinet minister’s copy of the red book. Like a formula for convictions, it might be inserted into each particular, or into one general, act of parliament. Subscription to it, and oath of belief in it, in relation to all official persons whose salaries had risen or should hereafter rise to a certain amount, might be added to the test and corporation acts: and, without need of troubling the legislature, Lord Chief-Justice Abbott, or Lord Chief-Justice Anybody, would hold himself in readiness to fine and imprison every man who should dare to insinuate that any such person that lives, or that ever has lived, or that ever shall live, is, has been, or ever can be, deficient in any one point belonging to it.

Without violation of this standing character rule, he saw how impossible it was, that any the slightest shade of inaptitude, actual or possible, in any one of its modes, could be laid upon the character of any one of the existing incumbents. “With the character of all of them, all who heard him” (see No. 11) “were acquainted.” Remain, according to parliamentary usage, the only persons with whom any such liberty could be taken—their future-contingent, and thence as yet unknown successors.

Here, however, comes something of a difficulty. Evil as above—disorder as above—inaptitude in some shape or other: remedy as above, of the preventive stamp, the £200 a-year. Good: supposing disorder or danger of it. But where is the room for it, where there is neither the one nor the other? Sole reason, the word invidious. Invidious it would be, and that being the case, “poor economy”—“so poor,” says No. 8, “that there could not be a worse”—to refuse to those gentlemen whom everybody knows, that which will be given to those of whom, without disparagement it must be said, that they are gentlemen whom as yet nobody knows.

So much as to aptitude: and the alleged, and by the same person at the same time denied deficiency in it. Remains, as another and the only remaining subject-matter of deficiency, the article of time—time employed in official attendance. This, too, is another delicate topic. Standing so near to aptitude, and, in particular, to the moral branch of it, nothing determinate in relation to it could be hazarded: allusion, insinuation, yes: but nothing that applied to anybody. “Great increase of population.”—(No. 1, Morning Chronicle.) “The duties of the office would require constant attendance”—(No. 5, Morning Chronicle;)—“almost constant attendance”—(No. 4, Times.) Hereupon comes the same troublesome question as before. This constancy of attendance, is it not then paid by the present gentlemen? Answer, as before, yes and no: and, to secure it at the hands of their future colleagues and successors, comes the necessity of the same sweet security—the £200 a-year: this £200 a-year to be given, and without condition, not only to those unknown persons, but moreover, and in the first place, on pain of hearing the word “invidious,” and bearing the stigma of “poverty,” given also to the existing gentlemen, in whose instance there is so much, and so little, need of it.

So much for the right honourable secretary’s two evils, and his proof of their existence. Now for his two ministerial remedies in aid of the £200 a-year parliamentary one.—1. Exclusion of all but barristers; 2. Exclusion of all barristers but three-year old ones. Problem, which his rhetoric or his logic, or what is sometimes more powerful than both, his silence, has undertaken for the solution of—how to prove, that, by these two exclusions, added to the £200 a-year,—appropriate aptitude, moral, intellectual, and active, adequate to the situation, together with adequate plenitude of attendance, will be produced.

By this policy, he secures, to this class of his protegés, the aptitude, proved by the right to the name of barrister. Now, then, what are the qualifications, the sole qualifications, of the possession of which any proof whatever is given by the right to bear this name?—Answer—Being of full age; payment of a certain sum in fees and taxes; and, on a certain number of days sprinkled over a surface of five years, eating and drinking in a certain place, or therein making believe to eat and drink. Sum: between one and two hundred pounds; place, the hall of an inn of court; number of days, twenty in every year: total number of days, a hundred. As to the making believe, this option must not be omitted: nor yet the hour—four, or half-past four; for neither the hour nor the fare accord well with the taste of the class of persons for whom, it will be seen, the £800 is destined.

As if this security were not strong enough, now mounts another upon the shoulders of it. After five years employed in the above exercises, then comes a repose of three years more; for not less indeed than these three years more, must this class of the right honourable secretary’s protegés have borne the name of barrister: but, as to the exercises of eating and drinking, if it be agreeable to the gentleman to perform them, he is no longer burthened with any limitation in regard to place. The right honourable minister, in the pathetic part of his speech (No. 4,) asks a question: May logic, in the person of an obscure individual, be permitted to do the like? Comparatively speaking (for I mean nothing more)—service for five years, (the usual time,) as clerk to an attorney, would it not be a security, though not so dignified, somewhat more efficient? The clerk could not be altogether ignorant of law, without his master’s suffering for it. The master, therefore, has some interest in causing him to learn it; the clerk in learning it. But more of this further on.

The security is of Lord Sidmouth’s invention: so his right honourable successor assures us: and much inferior authority might have sufficed to command belief. It is just the sort of security, that the genius of his noble and learned oracle, or of Mr. Justice Bailey, or of Mr. Justice Park, might have devised: of all these luminaries, the collective wisdom was perhaps expended upon it. For all these luminaries, the name of barrister, with three years’ wear of it, was security sufficient: and, if he is sincere, Lord Sidmouth’s successor looks no deeper than to names.

So much better in their eyes is a nominal security than a real one, that when a real one offers, it is deliberately put aside—(No. 6.)

The design of the right honourable secretary found the class of country gentlemen standing in its way: a class, before which ministers, not to say kings themselves, bow, was not to be lightly dealt with. Something in the way of compliment to them was indispensable; the compliment, however, was unavoidably of a somewhat ambiguous character, as, not being eminent lawyers, they could not serve the purpose. Inaptitude on their parts—relative inaptitude at least—it was necessary should somehow or other be insinuated.

As to this matter, if absolute inaptitude would content the right honourable gentleman, my feeble suffrage would see no very cogent reason against joining itself to his: but, as to comparative inaptitude, in the case in question—comparative in relation to his three years’ old, and theretofore, perhaps, eating and drinking barristers, so far I cannot go with him. For, not only country gentlemen at large, but country magistrates—nay, and such country magistrates as have been in use to perform—and that for whatsoever length of time—the duties of this very office—such are those he puts from him. This being decided, for extinguishing all pretensions to appropriate aptitude on their part, the purpose of his argument required a dyslogistic epithet. Routine is accordingly the epithet, by which the whole of the business they have been accustomed to is characterized. Yet, make the least of it, it at any rate composes the greatest part of the business of the very office from which he is excluding them: one more look, and you will see that the business they have been accustomed to has, in the instance of many of them, and may, if he will vouchsafe to adopt them, be, in the instance of all these children of his adoption, made to comprise the whole of it. Such being the candidates whom he puts aside as unfit for the business, what are the objects of his embrace? Three-years old barristers, altogether unused to business of any kind; unless eating and drinking, or making believe to eat and drink, is business. To a person who has never dined, or made believe to dine, at an inn of court hall, all this may seem exaggeration, to say no worse. I speak not only from observation, but from experience. Such is my good fortune, never as yet have I been convicted of perjury: nobody has ever given me anything for saying this: my evidence is therefore good evidence; and it applies not less to the making believe to eat and drink, than to the actual exhibition of those so perfectly conclusive, and exclusively receivable, tests of aptitude for the office of magistrate. Thus the matter stood sixty years ago, and thus, I am assured, by equally competent witnesses, it stands still. Let it not be said, the place being a law place, the conversation turns of course upon law. There being no conversation upon anything, there is no conversation upon law; for, unless you happen to be already acquainted with him, you have no more conversation with your messmate, than if he were at the antipodes.

To complete his demonstration of the superiority of his three-years old barristers without any experience, to a quondam country gentleman with thirty years of appropriate experience, the right honourable secretary brings exemplification from the building act, and tells Honourable House of a case under it which (says No. 7) had occupied “a couple of days, during which surveyors had been examined on both sides.” Now, in a case of this sort, what is there that should render even an experienced magistrate less competent than an equally experienced barrister? What has it to do either with equity or with common law? Country magistrates, who, not a few of them, are themselves builders—who, all of them, are accustomed to order buildings to be built—built with perhaps a little of their own money, and sometimes with rather too much of other people’s—what should hinder them from being at least as well conversant with the subject as the most learned inhabitant of Lincoln’s Inn Old-buildings? Here, for law is an act of parliament, nothing more: for fact, evidence about something that should or should not have been done under that same act. The days thus employed, what would they have been to the purpose, if, instead of two, there had been twenty of them?

At the winding up of his speech (No. 10,) to place above all contradiction the indispensableness of the £200 a-year, comes a trope—the word refuse—which seems to bid defiance to all endeavours to descry anything in it beyond the intensity of the desire to give birth to the indispensable effect.

Barristers—all barristers in the lump—are, by this figure of speech, divided into two classes: those who will serve for £600 a-year, and those who will not serve for the £600, but will for the £800. As to the meaning, it is indeed intelligible enough: not so, by any means, the grounds of it. That it were so is, however, rather to be wished: for those—all those, who would be content that the £600 a-year, public money, which the right honourable secretary is thus buying creatures with, should be saved—all those, barristers as they are, are branded with the common name of refuse. Such is the contempt—the undisguised, the thus loudly proclaimed contempt, in which sincerity—I mean always comparative sincerity—is held by this one of our head guardians of public morals. Insincerity is among the qualities professed to be possessed by barristers: the only one which is sure to be possessed by any of them. Now then, true it is, that no reason can be alleged for supposing, that, so far as disposition goes, those who get least business are behind-hand in this endowment, with those who get most: but disposition is one thing—practice is another: and the less a man has manifested of it, the more deep-drawn is the contempt which he receives on his head at the hands of the right honourable secretary, from the bucket lettered with the word refuse.

Meantime, here stands a strange mystery. Refuse—were there ever such a plenty of it, would the hand of Mr. Peel pick it off the dunghill, and place it on high—this refuse? Forbid it, consistency, at least. For who is it that prophesies it of him? Is it not Mr. Peel himself? But shall he be suffered thus to deal by himself? Shall Amyntas murder Amyntas?

One possible solution remains, and but one. On the part of a barrister, willingness to serve in the office of police magistrate for so little as the £600 a-year, is not merely evidence of his inaptitude for that office, but conclusive evidence. This meaning, however strange, being intelligible enough—we have thus far something tangible to examine. For, supposing none but refuse willing to serve, refuse he must take up with, or have none: and thus, it being Hobson’s choice, there is no inconsistency either in his making it, or in his avowing the making it. But suppose enough willing who are not refuse, what matter is it how many there are who are refuse? Will he, then, having good and bad before him, both in plenty, take in hand the bad, putting aside the good?

The stock of difficulties is not yet exhausted. Comes now a point for him to settle with certain gentlemen. Of the thirty gentlemen at present serving in this situation, four I see, who, by his own account (No. 11,) are serving, and for these three years, or thereabouts, have been serving, at the low price. None of them, I hope, were born in Ireland, or in the United States: if yes, there may be danger in the case. “Sir,” they may say to him, one after another, “do you mean to call me refuse?” One consolation is, that refuse, as according to him they are (as per No. 1,) they are not the less included in his certificate (No. 6) of universal aptitude. This, with the assurance of the additional £200, may, it is hoped, soften them. Was it for this, that the £200 was extended to those in whose instance experience, if he is to be believed, has demonstrated that for any other purpose it was not needed?

One lumping assumption there is, upon which the whole strength of his argument rests. Faintness of prospect, such as to induce a man in the profession to take up with £600 a-year certain, charged with moderate labour, is conclusive evidence of his not being fit, either for the profession of barrister, or for the office of police magistrate. How brisk are the right honourable secretary’s conclusions! Involved in the assumption is this—that all who have not actually a certain quantity of the business in question, or at least a strong assurance of it, are unfit for it. Now then, how stands the matter in point of fact? In a prodigious degree more than any other, this profession is always overstocked. In this same profession, the quantity of business that shall be deemed sufficient to produce a refusal of the office, with the £600 a-year—let the fixation of it be left even to him—for one who is in possession of it, there may be two, or more likely a much greater multiple of one, that are not in possession of it. Here then, according to his own reckoning, for one who is not refuse, there will be the two, the three, the half-dozen (where shall we end?) who are refuse: and yet, as above, of this refuse, for aught he can know, numbers there are in any proportion, whose aptitude is at the highest pitch, and who yet, if they have either common prudence, or disposition to follow so many examples as are before them, will not disdain to pick up the supposed disgraceful pittance. Let me not be accused of taking an undue advantage of an unguarded word. Substitute the tamest word the language furnishes, the arguments remain the same.

Meantime, who does not know that there are certain points of aptitude, in respect of which a man may be very indifferently qualified for making his way at the bar; and yet, perhaps, be but so much the better qualified for the exercise of the functions of the office in question, being, as they are—with Mr. Justice Bailey’s leave be it spoken—the functions of the judge. Rhetoric is the leading talent of the barrister; logic, of the judge: and, between the two, the strife is not much less fierce than, according to the poet, between liberty and love.

Be this as it may, almost everybody knows—and a man must be a secretary of state, or at least a cabinet minister, not to know—that in this profession, above all others, success depends upon accident, at least as much as upon aptitude:—that it has for its proximate cause a certain opinion in the heads of attorneys: and that, if external circumstances, altogether independent of inward endowments, do not concur in the generation of this opinion, a man may unite the rhetoric of a Murray with the logic of a Dunning, and, at the end of a long life, die, like Sergeant Kemble the reporter, without ever having clasped to his panting breast the blessing of a brief.

Nor yet are we out of our wood; for still remains one topic, to thicken the perplexity. It is that of the length of standing—the yet remaining one of the three branches of the right honourable secretary’s security for aptitude. To render a barrister an object of his choice, three years (says No. 3) must be his length of standing. Now then, of the number three thus applied, what was the design?—to extend the number of admissible candidates, or to narrow it? The too young or the too old—for the exclusion of which of these unapt classes was it intended? The too young, says the wording, abstractedly considered: the too old, says the word refuse, and the sort of argument conveyed by it. For, these are they, who, by their willingness to accept of so low a price as the £600, have given the requisite proof of inaptitude—of their despair of barrister business—and consequently of their inaptitude for the office of police magistrate. Thus incompetent, says the argument, are the old barristers run to seed.—Turn now to the three-year-olds. In the breasts of all this blooming youth, no such self-condemning and inaptitude-proving despair, can have had time to form itself. At this short standing,—unless here and there a special pleader, who has shown himself by practice under the bar, be an exception,—no practice, no expectation—consequently no disappointment. Expectation! How should there have been any? After these three years, how long (shall we say) continues the time for junior openings, which require nothing but a few words got by heart, and half-guinea motions of course, which require not even that?—sources not furnishing, upon an average, the tenth part of the supposed disdained £600. Now then comes the comparison. To these men, in whose instance, by the admission, or rather by the assertion, of the right honourable secretary, the probability is—that they have had no appropriate experience worth mentioning,—to these men is to belong the exclusive chance of being chosen for the office, while those, who may have appropriate experience, in any quantity not incompatible with the choice of £600 a-year for life, charged with the already very moderate, and naturally still decreasing labour, which will be seen presently,—are for that reason to be regarded as being proved in hopeless degree unapt, and on that ground are to be excluded from all chance.

“But you have forgot.” says somebody, “the wonder-working £200 a-year.” Not I indeed. But forasmuch as, in the case of the three-year-olds, it is to create aptitude out of nothing,—I see not why it should find less difficulty in creating it, in the instance of the twenty or twenty-three-year-olds, to whose stock of the requisite materials no limitation can be assigned, short of that which is applied by an assurance of more than the £600 a-year by professional practice.

To prepare Honourable House for the reception of the above logic and the above rhetoric, right honourable secretary sets out, I see, with history. Original salaries, £400; result per Times (No. 2,) “incompetence:” per Morning Chronicle, “total incompetence.” Cause and proof of the incompetence, manifest: out of twelve (the original number) barristers, no more than three. Being barristers, these three should naturally have produced a five-and-twenty per cent. discount from the totality of the incompetence; but perhaps they were of the refuse sort: and grant him but this, the exception, being thus only apparent, gives strength, rather than weakness to his sweeping rule. Here, too, sincerity compels me to be totally recalcitrant: major, minor, conclusion—to nothing can I accede. Incompetence, neither proved nor probabilized: power of the first £200 a-year to increase competence (supposing a deficiency of it,) denied by me: supposing it admitted, need of the proposed second £200 a-year for producing competence, denied again: the actual production of it having been so triumphantly proved by me, as above: proved by the most irrefragable of all testimony—his own evidence.

Proof of the incompetence of the original nine,—non-barristership. With so concise, and at the sametime so satisfactory a proof, especially to the barrister part of the audience,—at this stage of his history in union with his logic, the right honourable secretary might perhaps have done as well, had he not only begun, but ended: not much strength, it is believed, will either of these his supports receive from the particulars. The year of the establishment being 1792,—the nine are all of them, by this time, gathered to their fathers; indeed, the right honourable gentleman’s urbanity considered, the sentence thus passed on them proves as much. From such a quarter, a more drastic condemnation, unless it were by the word refuse, can scarcely be imagined. But they had not risen (poor gentlemen!) to the rank of those, the feelings of whose surviving relatives can make claim to the protection of Lord Chief-Justice Abbott: and, if they had, it is not against a secretary of state, nor even against a member of Honourable House—speaking in his place—that it could be afforded. Instead of the sweet satisfaction of seeing fine and imprisonment inflicted on the gainsayer,—they must therefore, under their affliction, put up with such poor support, as an obscure and unpaid exbarrister of the refuse class has it in his power to give.

With an exception (of which presently,) of no one of the devoted nine do I remember anything. The sort of character evidence which I have to adduce for them, is therefore none of it of that sort which is called direct: none of it more than circumstantial. Nor is it the worse for being so; for, as applied to character, the value of direct evidence, unless it be from some such person as a secretary of state, may be judged from what is above, although it is from a secretary of state.

To return to the history.—In regard to appropriate aptitude—(competence I cannot keep to, since it includes, not to say exclusively denotes, acceptance at the hands of those to whom inaptitude is a recommendation)—in regard to appropriate aptitude, the question is between the nine defunct and reprobated original magistrates, and the right honourable secretary’s magistrates in petto or in embryo—his three-year-old barristers. Of these, as yet unborn babes of grace—offspring of the imagination of the right honourable secretary—the title to the quality of aptitude has been already disposed of: circumstantial evidence and proof presumptive of inaptitude,—want of experience in business, or, more shortly—their not being men of business. Now then for my nine clients. The right honourable secretary’s list of them (No. 2) has been seen: major, one; clergymen, three;—(oh fie! what! after the major?)—starch-dealers, two; Glasgow trader, one. Now, with the exception of the three clergymen (whom I shall leave to those so much more efficient advocates, of whom no gentleman of their cloth can never be in want)—magistrates for whom I cannot find any tolerably presumptive evidence of their having been men of business in any way—of all the others I am bold to affirm that they had been men of business.

I will go further, and add,—nor is there any one of those occupations, experience in the business of which does not afford stronger presumption of aptitude—even in relation to the business of the office in question, than can be afforded by an utter want of all experience in any kind of business. The major, being a major, must have passed through the several grades—ensign (or the equivalent) lieutenant, captain: and, in all of them, if commanding men by scores and hundreds is business—he must have been a man of business. The starch-dealers, they too must have been men of business; for buying and selling starch is doing business: and in that business, with whatever degree of success, they could not but have been exerting themselves, forasmuch as their subsistence depended upon it. All this, too, in addition to their having been bonâ fide eating as well as drinking; to wit, from the hour they gave up the nipple, down to the time of their appointment; which is rather more than can be alleged in favour of the aptitude of the right honourable secretary’s protegés, unless it be the difference between the performing of those exercises at a man’s own home, and the performing them in the hall of an inn of court: which difference I cannot bring myself to regard as constituting, to the purpose in question, a very material one.

I come lastly to the Glasgow trader. Being a trader, he too must have been a man of business. As such I might leave him; but, it having fallen in my way to know in what ways, and in how conspicuous a degree, with reference to the business of this very office, he proved himself a man of business, I shall venture a few particulars. This man was Patrick Colquhoun: and, unless destroyed by the comparative smallness of his remuneration, his relative aptitude has stronger, as well as more incontrovertible proofs than can, I trust, be produced, not only by the right honourable secretary’s unknown protegés in embryo, whom even I look down upon as so many chits,—but even by the whole of the actually existing barrister-magistrates, produced by the additional £200 a-year, to whom I make my bow, whoever they may be.—Treatise (I mean) on the Police of the Metropolis, Treatise on Indigence, Treatise on the Office of Constable—and, for aught I know, others (for I have not time to hunt for them) bearing most directly upon the business of this very office. As to the first-mentioned—of the number of its editions I am afraid to speak, not having the last before me: the fifth, which I have in hand, is as early as 1797, and there must have been several others after it. Into the merits of them I cannot afford to enter, this paper not being either a Quarterly, an Edinburgh, or a Westminster Review: nor, if I could, could I venture to put my judgment in competition with the single word incompetence, from the lips of the right honourable secretary. I must leave them, therefore, to that evidence: and, if that evidence be not more probative, than any which the right honourable secretary has adduced in favour of his future protegés, or even in favour of their existing predecessors and intended colleagues, I must give up my cause.

Evidence of this sort in abundance must be omitted. One lot is too pointed to be thus dealt with. To this Glasgow trader, whatever may be the value of it, was the public indebted for the first addition made to the number of those offices, and the right honourable secretary for a proportionable part of the patronage, to the value of which he is thus labouring to give increase. It was the addition made by the Thames police act, 39 and 40 Geo. III. anno 1800, ch. 87. Of this business, it fell in my way not to be altogether ignorant. A bill was necessary. Colquhoun had found the facts. I ventured to supply the law. I drew the bill, leaving out as much of the customary surplusage as I durst. In the procedure clauses, for giving execution and effect to the law, I ventured as far as I durst, and further than any one had ventured before. Incompetent as the performance could not but be, coming out of such hands, change of hands rendered its competence unquestionable. At my humble request, a learned gentleman of the first distinction (I know my distance better than to mention him) received it into his, and, without the change of a word, it became law. The plan had been formed by Colquhoun, in conjunction with I forget what body of mercantile men, who wanted a sort of board of which he was to be at the head. The board they did not get; but a present of £500 testified their sense of his competence with relation to police business. Such was the nameless Glasgow trader: his name would not have been quite so suitable to the right honourable secretary’s purpose, as it is to mine.

As to the three clergymen, leaving the question as to their incompetence to be settled by the honourable secretary with the archbishops of Canterbury, defunct and living, the lord chancellors, and the several lord lieutenants, I proceed to the remaining one of the two evils, for which the second £200 a-year, as provided by him, is to operate as a remedy. This is—the deficiency in the article of time: the deficiency, if any, present or future, in regard to the quantity of time employed, or eventually about to be employed, by the magistrates in question, in the fulfilment of their duties.

On this evil the right honourable secretary touches, it should seem, with rather a tender hand: allusion and insinuation, rather than assertion, are the forms of speech I see employed. (Per No. 1)—In the business “great increase:” cause, ditto, partly in acts of parliament, partly in population. Triumphant tenders of papers in proof of all these facts,—to which might have been added, the existence of the sun at noon-day.

Of the existence of the thus delicately-assumed evil,—at the hands of the right honourable secretary I look in vain for other proof. From that most authentic source, somewhat less explicit is the evidence I see to the contrary. It is that which has been already seen: it is made of stretching leather: it is wide enough to be applied to whatever can be desired. By the thirty gentlemen—(who, it has been seen, are at once so competent, and, for want of the £200 a-year, so incompetent)—these duties, as per No. 11, are performed to the great satisfaction of the country; and this, notwithstanding that, as per No. 4, to prove the necessity of the barrister part, almost constant attendance, he says, is required. Required? Good. But by whom was it, or anything like it, ever required?—a question somewhat more easy to put than to answer. By any such attendance, or anything like an approach to it, the place would be spoilt, and no gentleman would accept it: acceptance would of itself be proof of incompetence.

Now then, forasmuch as, in this office, according to the right honourable secretary’s opinion, an “almost constant attendance” is required, and accordingly forms part and parcel of its duties;—and forasmuch as, without exception, these same duties are, according to this his evidence, actually performed—performed not merely to his satisfaction, but to the satisfaction of the country:—forasmuch as, I say, evidence of the existence of this one of his two evils, is, notwithstanding the prodigious pile of papers, with the mention of which he at once alarmed and satisfied the House, still to seek;—for this deficiency, though it is not in my power to provide a supply, it is not, I flatter myself, altogether out of my power humbly to point out a course by which he may obtain it. True or false, newspaper statement is unofficial statement: unofficial statement is not admitted in evidence, even when no man in Honourable House doubts, or will venture to express a doubt, of the correctness of it. Honourable House knows better than to admit, through such a channel, anything, however well attested, in the character of evidence. Yet are such statements,—unofficial and incompetent as they are,—made use of, every day, in the character of indicative evidence, for the elicitation of acknowledged evidence. This premised, I shall venture to copy from a newspaper a portion of a paragraph: humbly observing, that in every one of the offices in question there exist various persons, from any of whom, if it be agreeable to know it, Honourable House, and in it right honourable secretary, may learn at any time, whether, in this same newspaper statement, there be any and what portion and degree of truth, and how far the actual agrees with their “required constancy of attendance.”

“We believe,” says the Globe and Traveller, as quoted in the Examiner of March 27, 1825—“we believe a magistrate attends at each of the offices from twelve to three, and looks in again in the evening. There are three magistrates in an office, so that this duty is imposed upon each of them twice a-week. We know that there is some business for which the presence of two magistrates is necessary; but it is to be recollected, that at almost all the offices, volunteer magistrates are frequently in attendance. We are convinced that a very large statement of the time each magistrate needs be in attendances is—every other day, three hours in the morning, and twice a-week, two hours in the evening.”

In regard to this evil, if anything that comes from so incompetent a quarter could be heard, I could, I think, do something towards tranquillizing the right honourable secretary. Aptitude is not quite so easily secured as asserted. But attendance—the maximum of possible attendance—every master-man, how humble soever in condition—every masterman that really desires it, has it. To the extent of his desires, the right honourable secretary has it in his own individual office. With the assistance of Honourable and Right Honourable House, to the same extent he may have it in the instance of every other public office without exception. If, then, in any instance, and in any degree, he fails to have it, it is because he does not desire, not because he is not able, to obtain it.

You may maximize attendance, and you may minimize it. The maximization problem has been solved, and with illustrious success, in the case of the children of the indigent, when worked upon a steam scale. As some are killed off, others succeed: and capital—the one and the only thing needful—accumulates. Examined in his place, or elsewhere, one honourable member of Honourable House could give, on this point, if I have not been misinformed, instructive information. His name, if I mistake not, begins with a P.

Those whose will it is to minimize attendance might, if in the above newspaper report there be any approach to truth, receive instruction, if it be worth while, by applying to another P., no less a P. than Mr. Secretary Peel. But it is not worth while: those who understand nothing else, understand this. Everybody, man and boy, knows how to be idle—every man knows what it is to stand looking on, and helping, while others are idle. Every man knows what it is to pay, as well as to be paid, for doing work, and all the while seeing and leaving it undone. Other arts travel at their different paces. Under Matchless Constitution, the art of sinecurism is at its acme.

In my small way, I have a manufactory of my own, in which, with the same sort of instrument (imagination) with which the right honourable secretary has manufactured aptitude in the instance of his three-year-old barrister-magistrates, and for my own amusement (as a half-retired chimneysweeper swept chimneys) I make judges. My judges are judges of all work, and of all hours. They do not, it is true, sit, each of them, every day in every year, and on every day, every hour of the four-and-twenty; but, in each judicatory, they, following one another, do all this. When sleeps injustice, so may justice too, said a voice to me in one of my dreams. My muse is but a hobbling one:—she has not been to school to the laureate’s: the too is somewhat of a botch: but I remember her so much the better. In one thing I endeavour to copy the right honourable secretary’s noble and learned friend—it is the quality so judiciously selected for his eulogium—consistency. The ends to which my judicial establishment, and my procedure code, in conformity to the constitutional code to which they belong, are from beginning to end directed, are the ends of justice: under Matchless Constitution, the ends to which the judicial establishment is, and the procedure code, if there were any, would be, directed,—are the ends of judicature. What these are, it is not for me to presume to inform the honourable secretary: over and over again he must have heard them, amidst peals of laughter, or floods of tears, from his learned and matchlessly-consistent friend, before or after the second bottle.

Such being the bill—such the ostensible and declared objects of it—such the evils asserted or insinuated—such the remedies provided—such the arguments employed in proof of the evils, and in recommendation of the remedies—what, after all, is the real object? The topic must not be omitted: though to few of the readers, if any, whose patience has brought them thus far, can anything on this head be regarded as much more needed, than were the honourable secretary’s proofs, of increase of population and acts of parliament.

Loss, by waste of public money, is in every instance an evil: in the present instance, loss in the article of aptitude is, in my view of the matter, a still greater evil. To the augmentation of aptitude, perfectly inoperative will be the £200 a-year: not so to the diminution of it. £1000 a-year is a salary for a nobly related puisne, at one of the highest boards. I am fearful of mistakes, and have no time for researches. When red books had the salaries to them, £1000, if recollection does not mislead me, was the number attached to the office of Puisne Admiralty Lord.

In the heaven of office, there are many mansions. Of a Police Magistrate, the station cannot be altogether upon a level with that of an Admiralty Lord: but the £200 a-year will raise the lower office to a level next below that of the higher one. To a reverend youth—even to one born honourable—a spiritual benefice yielding £800 a-year is not altogether an object of disdain:—eased, as above, of labour, though not so perfectly as in the other case, why should even this temporal one? Without some improvement, attendance is a burthen the lay incumbent can not be altogether eased of: thought he may be eased of without difficulty. When two magistrates are necessary, there must be a non-honourable to yield thought, but the honourable will serve as well as the non-honourable to yield auspices: when one magistrate suffices, the dignity of the honourable man will need no disturbance. But, the only case, in which burthens so degrading to honourable men will require to be imposed, is an extreme case. Naturally speaking, there will in general be unpaid magistrates enough, to whom, for the time and trouble of attendance, the power and the amusement will afford sufficient compensation. One of these suppléans, the non-honourable, takes care to provide, each time, for his honourable friend and colleague. Thus is the labour of the honourable minimized: and, sadly have his non-honourable colleagues been deficient in what everybody owes to his rank, if the quantity of time actually employed in official duties is anything more than an impalpable one.

Here, then, in short, comes the effect and use of this second £200. The first did not bring the place within the sphere of the highly-connected class: the hope is—that the second will: it will, at any rate, form a basis for a third.

• “What makes all doctrines plain and clear?
• About two hundred pounds a-year.”

So stood the matter in Sir Hudibras’s time. But now the £200 must have an ever increasing number of others to mount upon.

Seldom, if ever, do I endeavour to overthrow, without endeavouring at the same time to build up. For maximizing the chance in favour of everything needful, I have a recipe of my own, and that exemplified upon the largest scale; the principle of it will be found in another part of this volume, or in one that will soon follow it. Alas! what hopes can there be for mine? It is the very reverse of the right honourable secretary’s. It may serve him at any rate to laugh at. His plan excludes experienced magistrates, admitting nobody but nominal barristers. Now then comes the laugh:—the most efficient and approved of House of Commons arguments. Mine admits nobody but experienced magistrates; excluding barristers, nominal and real all together.

My plan serves at once for aptitude and attendance. As to aptitude,—for that I require, as a qualification, previous admission into the magistracy, and thereafter, unpaid, but constant and adequately proved attendance, at some one of the existing offices; attendance for a certain length of time, say five years: to wit, when from the commencement of the plan that length of time has elapsed, and till then for as great a length of time as can be had.

Now for a contrast, between my experienced magistrates, and the right honourable secretary’s unfledged barristers—adding, if so it please him, any number of grey-headed ones.

1. As to moral aptitude, my magistrates will have been engaged in the exclusive support of right—or at least of what the legislature has pronounced right,—and the exclusive repression of wrong—or at least of what the legislature has pronounced wrong. His barristers will have been occupied either in nothing at all, or in what is so much worse than nothing, promiscuous defence of right and wrong, with the universal predilection for wrong, as being the best customer.

2. As to intellectual aptitude, composed as it is of appropriate knowledge and judgment, my magistrates will, for the whole of their unremunerated length of time, have been employed, on the very spot, in study, and occasionally in practice, in the very field for which it is proposed to engage their remunerated services; in the whole of that field, and in no other than that field, to their consideration will have been subjected, in all their varieties, all sorts of cases which can have grown up in that same field. The right honourable secretary’s barristers, with their £800, instead of £600 a-year,—how will they have been occupied? My answer has been seen already. The right honourable secretary’s answer the country will be grateful for, if he can find any. But they may have been not only barristers, but barristers in full practice, and all the while not knowing anything more of the business of a police magistrate, than if they had been all the while fighting as army officers. Of practising barristers there are about as many equity as common lawyers. Now, in a police magistrate’s practice, what is there that has anything in common with equity practice? Let him bestow a glance on the table to Maddock’s Equity, and then on the table to the last edition of Burn’s Justice, or whatever work has now supplanted it, and see whether this is not strictly true. To those abstracts I venture in kindness to refer him, long as the road through may seem to be, as being shorter than through the mazes of his walking dictionary. Those he might get by heart, sooner than an intelligible answer from his oracle; a negative the oracle would not venture to give, and an affirmative he would not choose to give.

3. Lastly, as to appropriate active aptitude. On the part of my magistrates, it would be a maximum. By every motive they would be impelled to render it so. At the hands of the barrister, what his right honourable patron does not require, is activity in any shape; all he does require, is existence.

As to attendance, and the means of securing it, to a great degree it is already comprised in the active aptitude just spoken of. But, in whatever possible degree he chooses to have it, he may have it if he pleases: nobody who does choose to have it, ever fails of having it. I will not attempt to trouble him with particular proofs, as they are already in one of my waking dreams.* In manuscript they are already in another or two, and will ere long be in print, if I live.†

This plan would suit both classes. The expectant stipendiaries would not be disinclined to attend, since it would increase their chance of the preferment; the existing stipendiaries would not be disinclined to be attended for, since it would increase their ease. How much soever superior the £600 a-year ones may be, to their exploded predecessors the £400 a-year ones,—were they to leave the burthen of the day altogether to the still superior expectants, if such they should prove, the public would not, any more than these same parties, have, in this quiet arrangement, any reason to repine. Ahab had served Baal a little. Jehu hath served him much. What prospect have I not opened!—what an Epicurean heaven! Thirty £600 a-year places, and all sinecures! So many temporal prebends and canonries! With such a pot-pourri of sweet arguments, what is there that could not be proved? Laughable and delectable all this—True: but would it be the less beneficial? Not it, indeed.—See Horace’s Reports. Ridentem dicere, &c.

Suppose not that it is upon this £6000 a-year alone that all this examination has been expended. The expense is but as a drop in the bucket. The reasoning on which it is supported is no such trifle: if good for £6000, not less would it be for £60,000, for £600,000 or £6,000,000. More than even this might, if duly looked into, be seen perhaps to stand upon no better grounds. Be this as it may; by any one in whom curiosity is strong enough, it may be seen how admirable a match it makes with that, on the ground of which Burke for the Whigs, followed by Rose for the Tories, proved, as another part of this volume will show, the necessity of draining, out of the pockets of the productive classes, the last drop of the matter of wealth that could be squeezed out of them consistently with the continuation of their existence. Practice, it is true, cannot be always rendered altogether co-extensive with theory; but whether the theory actually pursued as a law by government, under the really existing form of government, and under the fictitious entity, called the Constitution, is not the thing actually avowed by both parties, may be seen without other trouble than the turning over a few leaves.

Mr. Martin, if eyes or Morning Chronicle, April 2, 1825, do not deceive me,—Mr. Martin of Galway, treading in the right honourable secretary’s steps, and with a copy of the above speech, I presume, in his memory,—stands engaged, on the 12th of May, to extend his protection to judges, and I know not what besides. While his protection was confined to the helpless and persecuted part of the creation, I followed the honourable gentleman at an humble distance. But, if nothing will serve him but the extending it to those bipeds with gowns and wigs, instead of feathers, whom I had almost called v—n, which would have been as bad as refuse,—to those whose every-day occupation is depredation, and every-day-employed instrument a lie,—here I feel it impossible to go on with him. Were it my good fortune to be honoured with his confidence, I would beg him to stop where he is, and not suffer a hand admired (and vainly endeavoured to be made ridiculous) for its beneficence, to be converted into a cat’s-paw: let those (I would say to him) let those who are to eat the chesnut, put paws upon pates, and beg for it.

Let me not be mistaken. When I had like to have said v—n, what I had in view were fee-fed judges: the only sort, alas! which Matchless Constitution has yet bred: men, to whom, and so much more than to the man of finance, we are indebted for the so little less than universal denial of justice. If, instead of adding, he would substitute salaries to fees, I would consent to shut my eyes against the amount, howsoever extravagant it might prove.

The fees to be compounded for would have been—not only the fees avowedly extorted, but the unhappily so much more abundant stock surreptitiously received: received by these so erroneously supposed uncorrupt hands. They would be—not only the fees exacted by superintendents in their own name, but all those exacted under their authority, by respective subordinate holders of offices, of which they have the patronage. For, who is there that does not know that an office in a man’s gift has a no less decided marketable value than an office of the same emolument in his possession? True it is that, compared with the value of the possession, the value of the patronage may be to any amount less: not less true is it, that it may also be, and that it not unfrequently is, fully equal. Let Lord Eldon say, how much less worth to him the many thousands a-year he has put into his son’s pocket are, than if it had been his own? Let Mr. Peel, if he feels bold enough, look into the documents, and tell us, in his place, how many those thousands are.

To the number of the offices, the emolument of which a man can pocket with his own hand, there are limits: to the number of the offices, the emoluments of which he can thus pocket through other hands, there are no limits; and, in any number of instances, the protégé’s life may be worth more than the patron’s.

Who is there that does not know, that the value of an office to the incumbent is directly as the emolument, and inversely as the labour? Who is there that does not know, that to the patron the value of it is directly as the inaptitude of the protégé he has it in his power to put in and keep in it, since the more consummate this inaptitude, the less his choice is narrowed? Who is there, for example, that does not know, that it is to the union of these two characters that spiritual offices in particular are indebted for their transcendent value? Who is there that can deny, that while this mode of payment lasts, interest is, in all judges, at daggers-drawn with duty?—that it is from this cause that suits take up as many years as they need do hours, and as many pounds as they need do pence?

Who is there that can deny, that it is from this cause that our system of judicial procedure is what it is?—and that, through the whole texture of it,—judges having been the manufacturers,—delay, expense, and vexation, having been maximized, for the sake of the profit extractible out of the expense?

Yes: by such hands made, to no other end could it have been directed.

The Chief-Justice of the King’s Bench, has he not the nomination to the keepership of the prison named after his judicatory? If so, then to the profits of the bench are added the profits of the tap: and the money which justice would have returned to the hands of the creditor, is extracted, through this channel also, into the pockets of the judge.

Same question as to other chiefships,—whether, as between one and another, consistency in this respect, or inconsistency, is the rule: also of that which is about to be squeezed by jailor out of debtors and creditors, how much is, in advance, squeezed out of him by judge? questions these, none of them surely unfit to be put by Mr. Peel before he gives his support to the advocate of innoxious beasts and pre-eminently noxious judges.

Originally, though pregnant with depredation and oppression as it could not but be, payment by fees was matter of necessity: for judicature was necessary before kings had money to pay salaries.

For these three-and-thirty years past, it has been without excuse. The corruption continued, has been continued with open eyes.

When the trade of trading justices was put an end to—(this was the name then given to Middlesex magistrates)—it was undoubtedly for this same cause; it was because, in their small way, they made and protracted suits, for the purpose of multiplying fees.

When this small branch of the trade was put an end-to, it was by the selfsame remedy I am now venturing, with how little hope soever, to propose. So far as concerned corruption, success could not be more complete. Salaries were substitutes to fees, and in that form the plague ended.

When fees had thus given place to salaries, what disorder there was took an opposite turn. While the fees flowed into the judicial pocket, there was too much activity; now that, if any come in, they take a different direction, if report is to be believed (see above, p. 336,) there is not enough of it. Lethargic, not excitative, is now the character of the disease. Beyond comparison more mischievous than the lethargic is the excitative, though, when the specific is applied, so much easier to cure.

If in the case of the trading judges called magistrates, the remedy was needful, how much more bitterly needful is it not in the case of the trading judges called judges!—Look to mischief, profit, temptation, check: Look to the two fields of mischief; take measure of their extent.

Under the trading justices, the delay manufactured may be reckoned by days: under the trading judges, by years.

Under the trading justices, expense imposed on suitors may be reckoned by shillings: under the trading judges, by hundreds and by thousands of pounds.

Of the jurisdiction of the trading justices, local field, Middlesex, with or without the now added three other home counties; of the trading judges, England: local field, in both cases, far too irregular for measurement. Chaos bids defiance to the theodolite: what is sufficient is—that in the case of the trading justices, the sum of the scraps is a trifle, compared with what it is in the case of the trading judges.

Under the trading justices, the profits of the trade may be reckoned by hundreds a-year: under the trading judges, by more than as many thousands.

Honourable gentlemen,—will they always be so weak as to believe, or so transparently insincere as to pretend to believe, that while the temptation afforded by the hundreds was irresistible, the temptation afforded by the thousands was, is, or can ever be, without effect? Mr. Peel,—does he believe this? His noble, learned, and consistent friend, who, if you will believe him, is purity itself,—does he believe this?

Honourable gentlemen,—will they always believe, or affect to believe, that it is in the power of a masquerade dress to change man’s nature, and that a contagion, which a coat could not resist, has been, and is, resisted by a gown with a strip of fur sewed to it? Mr. Peel,—does he believe this? The noble, learned, and consistent friend, who is faith as well as purity personified,—does he believe this?

So much for mischief—profit—temptation. Now as to check, in one sense of the word, responsibility.

The trading justices had judges over them: judges, by whom,—if haply, in an extreme case, money could be raised sufficient to buy a hearing for a cry for punishment,—they might be punished:—judges, who, though not fond of punishing any man with a king’s commission in his pocket—might thereupon, by fear of shame, be peradventure driven so to do, if the case were flagrant.

The trading justices had judges over them. To any practical purposes, the trading judges have none: head of them all is the Lord Chancellor: head over himself is Lord Eldon: over Lord Eldon in Chancery, Lord Eldon in the House of Lords. Charge him with creation or preservation of abuse—of delay, expense, vexation, uncertainty—motive, either none at all, or the profit upon the expense;—he names the inquisitors by whom the inquisition is to be made. The rehearsal of this farce has been performed. When the curtain comes to be drawn up—if there be hardihood enough to draw it up—will the plaudits of a plundered people welcome it?

Remains still untouched the effective responsibility. Impunity wanted much of being complete in the case of the trading justices: it wanted nothing in the case of the trading judges. Here the word responsibility is mockery. Action, none—indictment, none:—pretence of impeachment, a cloak:—consistently with legislation, impeachment is physically impossible. Time would suffice for rendering it so, even if accusers were to be found, and where is the inducement for accomplices to be become—some of them informers, others of them judges?

Thus much for impeachment. Address of both Houses is impeachment under another name.

Trading justices never made law. The trading judges have always made it, continue to make it, and, so long as the pretended law-makers suffer them—which they find no small convenience in doing—will never cease making it.

Yes: made it they always have, and, above all things, for the sake of the trade. Accuse them—you do so in the teeth of a law made by themselves to punish you for it. The counterfeit and judge-made law is even more effectual than a real one would be: for, on each occasion, it is moulded at pleasure: moulded by those who, having made it for the purpose, execute it.

Were I to see a judge taking a bribe—should I tell of it? Not I, if I had common prudence. The person punished would be—not the judge for taking the bribe, but I for telling of it.

Thus, and hence it is—that, on the part—not only of all judges, but of all whom they delight to favour—including all whom “the king delighteth to honour”—virtue is consummate, character immaculate.

But why talk of imaginary things, such as bribes, when by the real things called fees—fees made lawful by those who pocket them—the work of corruption—of sure and self-corruption—is carried on; carried on in open day—carried on without fear or shame—in the face of the so long plundered, and, though so often warned, yet still deluded people?

No: never surely was grosser delusion than that by which English judges are exhibited as models of uncorruption. In whatsoever shapes they could practise corruption without danger, they have always practised it: and of this practice, their system of procedure, composed of depredation and denial of justice, has been the fruit. Never (it is said, and truly) never was English judge known to take a bribe. No, verily; for how should he? Bribery requires two: a receiver and a giver. Receiver a man cannot be, without putting himself into the power of the giver. Since Bacon, no English judge has been weak enough to do so; and so there can be no receiver. This is seen by everybody: and so there can be no giver. What, in England, should induce a judge thus to expose himself, when, without exposing himself, he gets more in abundance than, in any other country, judge ever did by anything he could do to expose himself? What should induce him to take, of this or that man, with fear and trembling, money in the shape of a bribe,—when, by money exacted by taxes, levied on all men without distinction, by force of a law made by his predecessors, or perhaps by himself,—he is permitted, under the name of fees, to pocket more money than judge ever received elsewhere in the shape of bribes? Give a man whatsoever he would steal from you, you may prevent his stealing it: whatsoever a man desires to exact, give him power to exact it by law, you may prevent his exacting it against law. Of this sort is the antiseptic, the infallibility of which has received such ample proof in the case of English judges.

As to bribery so called, what is the real preservative against it? Publicity:—that most efficient and sole safeguard, which these incorruptibles ever have been, and even now, with the eye of the public full upon them, never cease labouring to destroy. A judicatory on which life and death depend, is not (if you will believe Judge Bailey)—is not a court of justice. Why? because if you will admit this, a certain quantity of nonsense, with the word prejudging in it, may suffice for keeping the doors of it closed. Admit this, and you may see the doors of the Westminster Hall judicatories equally closed:—give them this, you may do anything with them: with as little ceremony, they will be ready to give up their own title to the appellation of courts of justice. Were they so to do, no contradiction would the position receive from me: all I should object to is, the practical conclusion drawn from it.

With Lord Eldon you will have little difficulty. He has long been working at the change. So frequently open are the doors of his closet,—to shut the door of his hitherto mostly open court, will be, one of these days, a motion of course. They may, however, be thrown open now and then, for occasions of parade: whereupon Bar will be seen arguing, while Court writes dockets, reads letters, or takes a nap.

A kindred and eminently convenient policy is—the giving to chambers of judicature such a size and form, that no lay-gents can find entrance. True it is, that by this device, ingenious as it is, the guardian influence of the Public-Opinion tribunal cannot be entirely destroyed; for lawyers cannot be altogether prevented from becoming writers, and betraying the secrets of the court. It may, however, by this means, be in no inconsiderable degree weakened. How much more effectual instruments of this policy brick and mortar are, than rules of court can be, is no secret. All that rules could do, is the rendering admission difficult: properly placed, brick and mortar render it impossible.

English judges incorrupt indeed! Those who talk in this strain, what is it they can mean by it? Did they ever see or hear of a judge who was not completely at the command of the corruptor-general? Places for sons, daughters’ husbands, nephews, nieces’ husbands, friends, and friends’ friends—and, to crown all, coronet for self. None of these things are bribes: True, but are they the less irresistible?—are they the less corruptive? But why speak of command? Far short of the real strength of the corruption—of the corruptive longings, and consequent courtings, and consequent compliances with presumed desires,—comes the view which that word gives of it. From any such superior, to any such subordinate authority, no such explicit expressions of will ought to be, none accordingly ever are, issued. Issued? To what end need they be? In a situation of that sort, is there a judge, is there a man, that needs to be told, what will displease, and what will please? To stand assured with sufficient certainty, not a step need any man stir from his own home.

Take, for example, the case of John Hunt. Among the titles of Majesty in this country, is that of most excellent. John Hunt, in his Examiner, says things which go to impugn that title. Lord Chief-Justice Abbott punishes him for this, with loss of £100 under the name of fine, and £90 under the name of costs: costs, of which the honourable house could know at any time, if it chose to know, whether anything, and if anything, how much, directly or indirectly, goes into the pocket of the Chief-Justice.

Now, then, of the thus punished words, wherein consisted the mischief? “Oh,” says his Lordship, or somebody for him, “the feelings of the King were hurt by them.” Hurt by them? How so? This same hurt—how came his Lordship to be so sure of it? This same Majesty that now is—did he ever tell him of it?—did he bespeak any such punishment? No: the questions answer themselves. To be thus assured, his Lordship had no further to look than into his own learned breast, and there he saw them; for, in that repository of fine feeling, what he could not fail to see clearly enough is, that had it happened to himself to hear a man speak in any such strain of his Lordship’s father, he would have been indignant, and not sorry to see the blasphemer punished.

By the king that now is, or by anybody for him, does Lord Chief-Justice Abbott, or Lord Chief-Justice Anybody, need to be told, that obsequiousness to crowns is the road to coronets?

So much for power and glory. Now as to money. If ever there was a judge, on whose incorruptibility the sound of the trumpet was loud, it was the late Lord Camden. His lordship was Lord High Chancellor. His son, on pretence of telling out public money, got out of it an income, which, when he gave it up (a bow upon paper is due to him for it) was worth £27,000 a-year to him. So much for corruptive intercourse, in a case in which it is not bribery. Now for a case in which it would be bribery. Seven-and-twenty guineas in hand, suppose George the Third saying to the Lord Chancellor—“In this suit (naming it) which I have against such an one (naming him) give judgment so and so, and I will give you these seven-and-twenty guineas,”—would his lordship have taken it? Oh fie! fie! what a thought!—this would have been no better than bribery. Multiply the twenty-seven by a thousand—multiply the product by so many years as the income lasted,—and, though assuredly nobody said what nobody had any need to hear, all is consummate purity.

So much for motives, and the influence of them on conduct: to know which, for the purpose of legislation, which is the purpose here in question, never do I look to anything but situation: of individuals I know just nothing, which is just what I want to know. Now as to mischievousness. Of the law thus made, the effect is, and, if it had any, the object was, to establish punishment for everything that can tend to palce in an unfavourable light the character of any king that ever lived; while the whole treasury of reward is applied to the purpose of placing those jewels in the most favourable light possible. Probative force of the evidence being in both cases the same, suppression of evidence in favour of one side, is in effect exactly the same thing as forgery of it in favour of the opposite side. Mischievousness of the practice the same in both cases; wickedness of it the same, though the people as yet have not sufficiently learnt to see it.

Keep in force this law, and with a steady hand give execution and effect to it,—the will of Holy Alliance is done, and history, from being the food, is converted into the poison of the mind. Yes, all history. First, as to the supposed injured dead. The protection granted to the manes of the third George, shall it be refused to those of the second, or those of the first? If yes, at what point, if at any, in the line of ancestry, shall it end? Then as to the supposed injured living: if thus wounded by the aspersions cast upon his royal father, can the king that now is be indifferent to any such, or any other aspersion, cast upon his princely grandfather, his royal great-grandfather, or his first ducal, then royal great-great-grandfather, &c. &c.? If not, then up go we to Egbert and to Fergus, and so on, through Woden, to Japhet and to Adam. At which of all these points does royal tranquillity commence?—that degree of tranquillity which will suffice to render truth and history unpunishable?

In this case, by-the-bye, may be seen, as well as in so many hundred other instances, how much more useful judge-made law is to parliament itself,—constituted as it is, and looking to the ends which, so constituted, it cannot but look to,—than even its own parliament-law could be made. Parliament itself, would it thus dare to destroy the truth of history, and cut up political science by the roots? But innumerable are the things of this sort which it does every day by the hands of judges; and which fear or shame would keep it from doing by its own.

These things (unless the last-mentioned one be an exception) being so manifest, and so almost universally acknowledged to be true, that, on account of their notoriety, the very mention of them is tedious,—what less can follow, than that to all purposes to which corruptness is to the greatest extent mischievous, a state of constant corruptedness is the state in which every judge has been that ever sat upon the English bench?

In cases between king and subject, in which the mischief of it consists in giving countenance and increase to depredation and oppression, for the benefit of his monarch, his associates, and dependents,—the disease is incurable: its root is in the form of government. But in suits between subject and subject, in which the mischief consists in giving countenance and increase to depredation and oppression by judges (the present judges at all times excepted, whatever they have been, are, or will be) for the benefit of judges, their associates and dependents, the disorder is not incurable.

A few words more as to the remedy, but for which the disease would not have here been mentioned. The principle has been seen. The public are indebted for it to Lord Colchester. His was the original Middlesex police magistrate act, 32d Geo. III. c. 53, anno 1792. Time enough for amendment, the bill found its way, somehow or other, into my hands. Time for scrutiny I could not afford. My approval was pure and simple. Sheridan opposed it in Honourable House. Objection, increase of patronage—a Whig complaint, never grudged when non-redress is sure: a few words might have dissipated it, but they were words that could not be heard there. Subject of the objection—either the source of the delegated power, or the quantum of it. Applied to the source, the objection (an unanswerable one) went to the form of government; it applied to every part, present and future, of the official establishment; applied to the quantum, it supposed a certain quantity of corruption needful: and, as such, requiring to be protected from censure by the word influence: all above needless; and, that it might be game for the Whig hunt, licensed to be hallooed at by its proper name. Applied to every future addition to the establishment, the objection sought the exclusion of every good, to the introduction of which,—and the perpetual continuance and increase of every evil, to the diminution of which,—any such addition should be necessary.

No such desire as that of applying a bar to the increase—to the addition of corruption to influence—was really entertained. In Honourable House, the disposition to keep influence within its bounds, whatever they were, had place or it had not. If no, objection to increase was useless: if yes, cancelling an equal quantity of sinecure would afford the same general security, without depriving the public of the benefit of the particular measure.

To return to the true remedy: it was a specific. In the finance committee of 1797 and 1798—the groundwork of such an economy as the form of government admits of—Lord Colchester applied it, and with success, to some of the administration offices. It stopped there. Judicial corruption was in an ark too sacred to be touched. In both Houses, whatsoever was learned would have been in a state of insurrection. Learned lords were above shame. Ministers were not above fear: so there the reform rested.

Since then the public mind has made some advance: whether sufficient for the substituting of justice to depredation and corruption, time will show.

To return to Mr. Martin and his new protégés. By his humanity he got nothing but ridicule: from his liberality he may hope better fortune. No honourable gentleman, who, for self, son, brother, cousin, or friend, has ever refreshed his eyes with a glimpse of the remuneration fund, can consistently harbour a doubt of the insufficiency of it. Whigs form no exception: for, though possession is not theirs at any time, expectancy is at all times. In the maximization of expense, it unites them in interest with judges. With what aspect they behold the county courts bill may be seen without looking at their eyes. Saving to suitors would be robbery to these their protectors, while in the patronage they have no share. Everything they say against it—everything they can seek to clog it with—is a certificate in favour of it. A measure with this object cannot have a stronger one.

By this his liberating scheme, who knows how many supporters he may not have brought over for his humanity scheme? How profound soever their contempt for their betters (for, when educated, as they sometimes are, and always may be, quadrupeds have the virtues without the vices of featherless bipeds) how profound soever their contempt—how complete soever their indifference—men’s hatred for these animals, can it, to any considerable extent, be greater than their love for themselves?

As to his instrument of purchase—his announced vermin-gorging bill—he could not have chosen a more promising one. This measure is of the number of those, which even an opposition member may be admitted to carry, and in which success can scarce be dubious. Reasons are ready stationed in each honourable breast. They stand upon a rock; and calculation is the name of it. What will my share of the annual charge amount to? A few half-pence a-year—what I toss now and then to a beggar to get rid of him when he is troublesome. Thus much on the debtor side: now, per contra creditor. So many more thousands a-year for my son, my nephew, my cousin, or though it were but my cousin’s cousin, when his time comes, which it can scarce fail to do, for taking his seat in a certain place. For, calculation being settled in the head, then, from hand or lungs, comes the substance of the universally-received economico-mathematical truism—official aptitude is in the direct ratio of ditto remuneration:—a proposition, which, to render it really true, requires nothing but the substituting to the word direct, the word inverse. Thereupon comes a flower or two, such as the right honourable secretary’s rhetoric has just been seen scattering over the subject:—virtue, displayed and appealed to, generosity: dignified virtue displayed, in the penetration manifested, by seeing through the cloud which the word economy (pronounced with a shake of the head—“poor economy!”) had, in the head of vulgar ignorance, thrown over the question. Natural and customary result,—“hear him! hear him!” from all quarters. Is anything ever said on the other side? If yes, it is for form’s sake, with a sort of faint, and as if self-condemning tone; nor even this but under the most satisfactory assurance, that the measure will not be hurt by it.

While upon this ground, I cannot pass over altogether an error—for such I am persuaded it is—on the part of Mr. Peel, as to a matter of fact, and which remained unnoticed before, because foreign to the purpose. In England, according to him (No. 8,) judges are worse paid than “in almost any other country in the world.” Not that, even if admitted, the fact would serve his purpose: it would run counter to his purpose. For, if not the only incorruptible, English judges (so almost everybody has hitherto been in the habit of saying) are of all in the world the most incorruptible. Well then—this incorruptibility—forasmuch as by what you are paying for it you have got it already,—why pay anything more for it? This question would be unanswerable, were it not for the argument ad verecundiam: men, who perform so charmingly, can you be so ungenerous as to let them serve at an under price, when it would be so easy for you to give them a fair price? The argument is worthy of the nursery, and perhaps has been inherited from it. The child is gorged with meat, but spies out cake, and cries for it. “Dear sweet poppet!” says grandmother to mother, “can you be so hardhearted as to let it cry on, only to save a little bit of cake?”

So much for argument: now for fact. Talking with a Frenchman t’other day on this subject, £50 a-year, he assured me—£50, and no more, is the salary of that class of judges, by which by far the greatest part of the business is done. “Well, but don’t they take bribes?”—“No such thing. On the contrary, the country is universally satisfied with them:” just what we have seen the right honourable secretary assuring us of, in the case of the £600 a-year magistrates. The right honourable secretary, having it in charge to find his £600 a-year insufficient, its sufficiency notwithstanding, had somewhat of a bias upon his own mind. According to the right honourable secretary, with these his £600 a-year magistrates the country is universally satisfied. But then, as has been seen, though satisfied, he is at the same time dissatisfied with them: and besides, their aptitude being to be proved as well as disproved, he had something of a bias, though a shifting one, upon his mind. The Frenchman had no such bias. He is himself neither judge, magistrate, nor lawyer; nor patron, with reference to any who are. He is a man of estate, birth, and connexion; and, though all that, a man of information and discernment. It did not occur to me to cross-examine him as to fees: but, as what we were talking about turned upon what was the whole of the emoluments, I cannot but think that if there are fees, they are fees of which neither the magnitude can be increased, nor yet the number extended, otherwise than by the satisfaction afforded by good judicature; and that, if any at all, the £50 does not receive from them any such increase as would affect the argument. I for my part would not give for them another £50.

This, though, if it were anything to the purpose, it might surely serve for inquiry,—is not official: what follows is. Printed “Register of Officers and Agents, &c. prepared at the department of state.” Date of Congress Resolution, 27th April, 1816. Printed anno 1818, at Washington, page 18. Judiciary of the United States Supreme Court. Chief Justice, dollars 4000; not so much as pounds 1000. No equity, put above law, to stop and overrule it. Compare this with Lord Eldon’s £23,000 a-year (those who make least of it make this) with so many other thousands for his son; not to speak of the thousands a-year salaries of the minor and common-law chiefships, and puisneships, and masterships, besides the ever corruptive fees. Before the words, “every other country,” stands indeed, in one of the reports of the right honourable secretary’s speech (No. 8,) the limitative word “almost:” let any one judge whether it was not a prudential one.

A thing more to be wished than hoped for is—that, in the right honourable secretary’s situation, and those associated with it, right honourable gentlemen and noble lords were a little more careful than they sometimes are, when speaking to facts, especially distant and complex ones, such as those in questions like this more especially. By Lord Liverpool, not many years ago, if recollection does not greatly deceive me—by Lord Liverpool it was declared and insisted upon, that in this country (population for population he could not but mean) the expense of the official establishment was less than in the United States. Proceeding in this strain, had he entered upon particulars, the King (he would have had to say) costs this country less than the President does the United States. So much for first treasury lord. Right honourable secretary—would he, after speaking upon the particular branch of the expenditure now in hand, as he has done—would he, after parliamentary inquiry into the facts, consent to pay the judicial establishment upon the same scale as it is paid, in that country, in which, to use his own phrase, it is so much less parsimoniously paid than in this? Not he indeed! What is it (he would then turn upon us and ask) what is it to the purpose, what people do in other countries?—in countries in which the state of things is so different from what it is in our own? Is it for us to receive laws from other countries?

In a committee of his own nomination, will he be pleased to elicit the evidence by which the correctness of this assertion of his will be proved? He knows better things. What use, he would ask, is getting up evidence from which nothing is to follow? Lord Liverpool—will he consent to assign, to the whole official establishment, the same rate of remuneration as that which has place in the United States—general government and particular states, always included? To no such insidious proposal would his lordship give acceptance. His love for the people and for economy is too sincere, to suffer him to pledge himself to an innovation, from which the dear people would have nothing to gain and so much to lose.

On pain of ignominy, a helpless radical must maintain, whether he will or no, some caution in regard to his facts: were he to make a slip, he would never hear the last of it. High situation places a man at his ease in regard to facts. As often as occasion requires, he may let fly insinuations or assertions, such as the above, and thenceforward hear no more of them than he pleases. Should any unpleasant use of them be endeavoured to be made, up comes the rule: “No allusion to anything said in a former debate.” Good, if responsibility be good for nothing: not so clearly so, if responsibility be good for anything. So far as regards facts, it is a counterpart to that mendacity licence, which, in Scotch Reform and elsewhere, has been held up to view as one of the pillars and main instruments of English judicature.

Throughout this examination, I have never been altogether free from feelings of compunction, at the thoughts of the sort of liberty all along taken with the author of the special jury bill. On the present occasion, I found him doing as, in his place, everybody else has done. On that other occasion, I see him taking a course peculiar to himself. Time does not at this moment permit me so much as to read the bill: I cannot therefore, on the ground of any opinion of my own, venture to say a syllable of it. But, if it does but completely substitute, as I am assured it does, lot to packing, and is in other respects what it has been certified to be by those whose discernment and love of justice I stand assured of, it will, by this one measure, ensure to him a stock of popularity and public confidence, such as I tremble but to think of.*

Should this measure be carried through, he must however content himself, as well as he can, with the reputation of probity: for as for that of consistency, it will quit him, and seek refuge in its chosen seat, the bosom of his noble and learned friend. Consistency being where it is,—how anything of this sort should have found its way into the secretary of state’s office, is the mystery of mysteries!

One word more as to patronage. On the present occasion, it is to the lessening the value of it to the honourable secretary that my endeavours, such as they are, have been applying themselves. Yet, so far am I from grudging him any good thing obtainable without preponderant evil to the community—in the case of the county courts bill, no desire a man in his place can have, for feeling the patronage of it is in his own hands, can be more sincere than mine for seeing it there. Supposing the situation equally acceptable to the only class of expectants worth providing for, here is a stock of patronage worth at least three times as much as that other.

County court judges, thirty: salary of each, £800: this gives £24,000 a-year—thrice as much as the £6000.

No hands can I find anywhere, which, in point of aptitude (Matchless Constitution standing as it stands) would bear a thought in comparison of his. Lord lieutenants?—they are so many invisible objects. In the high court of public opinion, nobody will see them—nobody will know who they are. The judge chosen by each will be chosen of the family most connected in the county, which is as much as to say, the most unapt that could be chosen. Armed as he is like any Achilles, still the place of a secretary of state is at the bar of public opinion, and he stands an object to all eyes. Here are mine, for example, weak as they are, yet better perhaps than none, thus watching him: could they keep running after thirty, or I don’t know how many more, Lord lieutenants?

Chancellors!—“aye—there’s the rub.” Sooner than see the patronage in the hands of the model of consistency, or even of any other English fee-fed judge,—sooner, much sooner, would I see it added to the portefeuille of the Chancellor of France.

SPEECH of Mr. Secretary Peel, on introducing the Police Magistrates’ Salary Increase Bill, 21st March 1825. Extract reported in the Times and the Morning Chronicle, of the 22d:—

TIMES.

1.

He held in his hand papers, from which, if he chose to enter into any detail, he could prove to the satisfaction of the committee, that since the institution of police magistrates, the business which devolved on those individuals had, owing to various acts of parliament which had been passed, independently of the increase of population, greatly augmented. Although that circumstance would of itself be a sufficient reason for increasing the salary of the magistrates, he rested his proposition upon grounds which he hoped the committee would consider even more satisfactory.

2.

When the police magistrates were first appointed, it was the practice to select individuals to fill the office who, he must say, were incompetent to discharge the duties which devolved upon them. He found from the papers which had been laid upon the table, that out of twelve police magistrates appointed at a former period, there were only three barristers; the rest were composed of a major in the army, a starch-maker, three clergymen, a Glasgow trader, and other persons who, from their occupations, could not but be considered as utterly unqualified to perform the duties of magistrates.

3.

The law had fixed no limitation with respect to the previous education of persons appointed to the office of magistrate, but he thought the committee would be pleased to hear, that a limitation on that point had been prescribed by the secretary of state. Neither his predecessor in office (Lord Sidmouth) nor himself had ever appointed a person to fill the office of magistrate who had not been a barrister of three years standing. That was a rule to which, in his opinion, it was most desirable to adhere.

4.

But in order to enable the secretary of state to abide by that rule, and to carry it into practice, it was necessary to augment the present salary of police magistrates. He implored the House to consider, whether £600 a-year (the present salary) was sufficient to induce a barrister to give up the emoluments of private practice, and the hope of preferment in his profession, to undertake the duties of a magistrate,

5.

which required their almost constant attendance? It could not, he thought, be considered an unreasonable proposition, that in future the secretary of state should be empowered to give to each police magistrate the sum of £800 per annum.

6.

He hoped that he should not be told, that individuals might be found, who would be willing to undertake the magisterial duties for a less sum. It was very true that such was the case. He was constantly receiving applications from persons who were anxious to be appointed police magistrates. Those applications proceeded principally from country magistrates, who had discharged the duties of their officeably and satisfactorily; but whom, nevertheless, he did not think right to appoint to be police magistrates in the metropolis. He held the unpaid magistracy in as high respect as any man, but he could easily conceive that a gentleman might, in consequence of the influence which he derived from local circumstances—the relations of landlord and tenant for instance—be able to discharge the duties of a country magistrate in a satisfactory manner, who would be incompetent to undertake the important ones of a police magistrate.

7.

“Police magistrates” was the name generally given to those magistrates to whom he alluded; but those persons were mistaken who supposed that the duties which they had to perform were merely executive. They were called upon to administer the law in a great number of complicated cases which were submitted to them. Out of some recent acts of parliament some very important questions arose, which the police magistrates were called upon to decide. Several nice cases had occurred under the building act. He knew one case of that description, which had occupied the attention of the magistrates for a couple of days, during which surveyors had been examined on both sides. He thought that a salary of £800 a-year was not more than a fair remuneration for the practice which a barrister must abandon when he undertook the duties of a magistrate.

8.

It appeared to him, that the individuals appointed to administer justice in this country were more parsimoniously dealt with than in almost any other country in the world. He thought this was poor economy, to give inadequate remuneration to individuals selected to administer justice, whether in the highest office of judge, or in the less important but still very important office of police magistrate.

9.

He might, he did not doubt, get persons—

10.

those persons who could not succeed in their profession—the refuse of the bar—to fill the office of police magistrate at a lower salary than he proposed to give—he could save £100 or £200 a-year by such a proceeding, but the public would have cause to lament it.

11.

The present police magistrates were of the highest personal respectability, and performed their duties to the great satisfaction of the country. They were thirty in number, only four of whom were not barristers. The right honourable gentleman concluded with moving—“That it is the opinion of the committee, that each justice appointed, or to be appointed, under the act for the more effectual administration of the office of justice of the peace, shall receive a salary not exceeding £800.

MORNING CHRONICLE.

1.

He held papers in his hand, showing in the clearest manner the great increase that had taken place in the business of the police offices since their first institution, arising from the great increase of the population of the metropolis, amongst other causes. It appeared from those papers, that since their first establishment, considerable additions had been made to the business of the offices, by various acts of parliament, passed at different times, but he would lay his proposition upon stronger grounds.

2.

In the first instance, the salaries of the magistrates amounted only to £400 per annum; it was afterwards raised to £600; but it was well known, that under the former regulation the persons appointed were totally incompetent to the duties. He found, that of the twelve magistrates first appointed, three were barristers. One was a major, three clergy-men, two starch-dealers, and one a Glasgow trader.

3.

He thought the committee would be pleased to hear, that though there was no limitation fixed by law to determine the eligibility of the persons to fill such offices, Lord Sidmouth and himself had confined themselves strictly to the appointment of barristers alone, and had not nominated any to the office of magistrate who were of less than three years standing. He would ask the committee, under those circumstances,

4.

whether £600 a-year could be sufficient to tempt a professional man of adequate abilities to relinquish his hopes of rising at the bar?

5.

The duties at the office would require his constant attendance, and the committee, he thought, would not consider it unreasonable to empower the secretary of state to grant them each a salary, not exceeding £800 a-year.

6.

It was true, he might be told that there were many individuals now ready to accept those offices: but though that was certainly the case, they were most of them country gentlemen, who had discharged the duty of magistrates in their respective counties; but that was no reason why they should be selected to fill the situation of police magistrates in the metropolis. He respected, as much as any man could, the unpaid magistracy of the country; but it did not follow, that because they were enabled by the weight of their character and influence to perform the ordinary routine duties of county magistrates, they were competent to discharge the more arduous business of the police in this city.

7.

Many acts of parliament had increased the duties of those offices; important questions in civil causes often came before them, and under the building acts they were often obliged to hear the evidence of surveyors on each side, and to determine many points which required a considerable degree of legal knowledge. He would rather rest his proposition on that single statement, than enter into the details contained in the papers which he held in his hands.

8.

It appeared to him, that this country was more parsimonious in its provisions upon the administration of justice than any other, and he was sure that there could not be a worse economy than such saving, either with regard to the highest or to inferior officers.

9.

The great object should be to procure persons qualified to discharge the duties [hear! hear!]

10.

To tell them that they might take the refuse of the bar, would be to recommend a course which the public would soon have reason to lament. Upon those grounds he trusted that the committee would not consider the addition of £200 a-year to their present salaries too much to remunerate them for the services of the police magistrates.

11.

They were acquainted with the character of the individuals who filled those offices at present. Their knowledge, experience, and respectability, were unquestionable. They were thirty in number, and their services had already proved the importance of the duties they had to fulfil. The honourable gentleman concluded with moving a resolution—“That each of the justices appointed, or to be appointed, to the police offices of the metropolis, shall be allowed a salary not exceeding £800 a-year, to be paid by one of his Majesty’s principal secretaries of state.”

PAPER VIII.

INDICATIONS RESPECTING LORD ELDON,

INCLUDING HISTORY OF THE PENDING JUDGES’-SALARY-RAISING MEASURE.

originally published in 1825.

SECTION I.

FACTS SUSPECTED.* SUBJECTS OF INQUIRY FOR THE HOUSE OF COMMONS.

Respecting Lord Eldon, certain suspicions have arisen. The object of these pages is—to cause inquiry to be made, if possible, by the competent authority, whether there be any ground—and if yes, what—for these suspicions.

In general terms, they may be thus expressed:—

1. That, finding the practice of the court of Chancery replete with fraud and extortion, Lord Eldon, on or soon after his coming into office as chancellor, formed and began to execute a plan for the screwing it up, for his own benefit, to the highest possible pitch; to wit, by assuming and exercising a power of taxation, and for that purpose setting his own authority above that of parliament; which plan he has all along steadily pursued; and, if not, the present Judges’ Salary-raising Measure, 69, anno 1822, a late act, to wit, the 3d Geo. IV. cap. 6, is the consummation of it.

2. That, it being necessary that, for this purpose, the other Westminster Hall chiefs should be let into a participation of such sinister profit—to wit, as well for the better assurance of their support, as because the power of appointing to those offices being virtually in his hands, whatever is profit to them is so to him—the means employed by him tended to that effect also, and have been followed by it.

In relation to the whole scheme, conception may perhaps receive help, from a glance, in this place, at the titles of the ensuing sections. Here they are:—

§ 2. Under Lord Eldon, equity an instrument of fraud and extortion—samples of it.

§ 3. Anno 1807.—Order by Chancellor and Master of the Rolls, augmenting the fees of offices in the gift of one of them.

§ 4. Profit to subordinates was profit to principals: so, in course, to successors.

§ 5. Contrary to law was this order.

§ 6. By it, increase and sanction were given to extortion.

§ 7. So, to corruption.

§ 8. How Lord Eldon pronounced the exaction contrary to law, all the while continuing it.

§ 9. How the Chancellor had laid the ground for the more effectual corruption of himself and the other chiefs (anno 1801).

§ 10. How the project was stopped by a solicitor, till set a-going again, as per § 3.

§ 11. How the other chiefs were corrupted accordingly.

§ 12. How the illegality got wind, and how Felix trembled.

§ 13. How the Chancellor went to parliament, and got the corruption established.

§ 14. How the Head of the Law, seeing swindling at work, stept in and took his profit out of it.

§ 15. How King George’s judges improved upon the precedent set by King Charles’s in the case of ship-money.

§ 16. How to be consistent, and complete the application of the self-paying principle.

§ 17. How Lord Eldon planned and established, by act of parliament, a joint stock company, composed of Westminster Hall chiefs, and other dishonest men of all classes.

§ 18. How the King’s Chancellor exercised a dispensing power.

§ 19. Character evidence.

SECTION II.

UNDER LORD ELDON, EQUITY AN INSTRUMENT OF FRAUD AND EXTORTION. SAMPLES:—

A single sample will serve to show in what state Lord Eldon found this branch of practice, and that it stood not in much need of improvement at his hands: by a few more which follow, a faint, yet for this purpose a sufficient idea, will be given of the improvement it has actually received under his care.

By the command of a father, I entered into the profession, and, in the year 1772 or thereabouts, was called to the bar. Not long after, having drawn a bill in equity, I had to defend it against exceptions before a Master in Chancery. “We shall have to attend on such a day,” (said the solicitor to me, naming a day a week or more distant;) “warrants for our attendance will be taken out for two intervening days, but it is not customary to attend before the third.” What I learnt afterwards was—that though no attendance more than one was ever bestowed, three were on every occasion regularly charged for; for each of the two falsely pretended attendances, the client being, by the solicitor, charged with a fee for himself, as also with a fee of 6s. 8d. paid by him to the Master: the consequence was—that for every actual attendance, the Master, instead of 6s. 8d., received £1, and that, even if inclined, no solicitor durst omit taking out the three warrants instead of one, for fear of the not-to-be-hazarded displeasure of that subordinate judge and his superiors. True it is, the solicitor is not under any obligation thus to charge his client for work not done. He is however sure of indemnity in doing so: it is accordingly done of course. Thus exquisitely cemented is the union of sinister interests.* So far as regards attendances of the functionaries here mentioned, thus is the expense tripled; so, for the sake of the profit on the expense, the delay likewise. And I have been assured by professional men now in practice, that on no occasion, for no purpose, is any Master’s attendance ever obtained without taking out three warrants at the least.

So much for the state of the practice before Lord Eldon’s first chancellorship: now for the state of it under his Lordship’s auspices.

Within the course of this current year, disclosures have been made in various pamphlets. One of the most instructive is the one entitled “A Letter to Samuel Compton Cox, Esq. one of the Masters of the Court of Chancery, respecting the Practice of that court, with suggestions for its alteration. By a Barrister. London, 1824.” Extracted from it are the following alleged samples: samples of the improvements made in the arts and sciences of fraud and extortion, by Masters in Chancery and others, under the noble and learned lord’s so assiduously fostering and protecting care.

I. In regard to attendances on and by Masters, money exacted by them as above, when no such services are performed.

P. 12. “The issuing of warrants is another subject which requires consideration. These are issued frequently upon states of facts, abstracts of titles, charges and discharges, &c. not according to the time consumed in going through the business before the Master, or his clerk,* but according to the length of the statement. The clerk takes it for granted, that the investigation of a state of facts of a given length may be expected to occupy a given number of hours. The solicitor, therefore, in drawing such his bill of costs, after the statement has been gone through, leaves a blank for the number of warrants “to proceed on the state of facts.” The Master’s clerk fills up the blank, by inserting such a number as might, if there had been much contention between the different parties, have by possibility been issued. Thus, where two or three are all that, in fact, have been taken out, ten or fifteen are charged and allowed. The solicitor produces those he has actually received in the course of the business, and the clerk delivers to him so many more as are necessary to make up the requisite number.†

P. 12. “A similar process takes place with respect to the report. If the charge for the warrants alone were all that was to be complained of, the mischief would not be so great. But you are aware, sir,‡ that an attendance on each of these warrants is charged for and allowed, and that frequently by several different solicitors,∥ so that the expense to the suitors is grievously increased.”

II.Of the sinister profit made by the solicitor, the greater part has for its cause the rapacity of the Master, supported by the Chancellor.

P. 9. “Copies of proceedings of all sorts, of states of facts, of affidavits, of reports, of every paper in short which is brought into the office, are multiplied without the least necessity; and, in many instances, are charged for, though never made. For instance, in an amicable suit, where the only object is to obtain the opinion of the court on some doubtful point, and the Master’s report is previously necessary to ascertain the facts of the case clearly, each solicitor concerned is required, in most instances, to take, or at least to pay for, a copy of the state of facts carried in, of the affidavits in support of it, and of the draft of the report; and in the event of his not taking these copies, he is not allowed to charge for any of his attendances in the Master’s office.”

P. 10. “The draft of the report is kept, with the other papers relating to the suit, in the Master’s office; and to such a length is the system of charging for copies carried, that in amicable suits it not unfrequently happens, I believe, that no copy whatever of the draft-report is made, but the solicitor merely looks over the original draft in the Master’s office. Yet, even in this case, two or more copies will be charged for* as made for the plaintiff and defendants.” pp. 10, 11.

III.How, by breach of duty as to attendance on the part of Masters and their clerks, delay and expense are manufactured by them, and profit out of it, over and above what is exacted by them on mendacious grounds, as above.

P. 15. “The Masters seldom, I believe, make their appearance in Southampton-buildings before eleven, and are mostly to be seen on their way home by three o’clock at the latest.”

P. 16. “Another evil is that of issuing warrants to different parties to attend at the same hour.”

“With some exceptions,” says another pamphlet, with a high and responsible name to it, p. 32, “I find a general understanding prevails, that the earliest appointment for a Master must be eleven, and the latest at two o’clock.” Consequence—warrant sent for; frequent answer—‘Master full for a week.’ Page 31—‘Court sits from ten to four.’ So far the authority. Court, sitting as yet in public, cannot convert itself into a sinecurist: this accommodation it cannot afford to any but its feudatories, who, so long as they act, the shorter the proportion of time in a day they sit on each cause, have the greater number of attendances to be paid for.

The attendance styled the Master’s, is, after all, in many instances, only the Clerk’s: so that it may be matter of calculation at the end of what period, under the cherishing care of Lord Eldon, all masterships may have ripened into sinecures, and thus completed the course completed already by the six-clerkships. Per pamphlet, entitled Rewards, &c. page 49, of which presently. Average emolument of one of the Master’s clerks, in 1822, 1823, and 1824, £2300 a-year.

IV. Strict community of sinister interest between the judicial and professional lawyers; the judicial principals, the professional, forced accomplices.

P. 13. “Their bills will be less rigidly examined. Under these circumstances, it is not the interest of a solicitor to quarrel with the Master’s clerk.”* Both are alike gainers by the existing system.—P. 14. “In cases where the costs come out of a fund in court, much less strictness is likely to prevail. If the plaintiff’s solicitor be allowed for attendances on more warrants than are actually taken out during the progress of the business, a similar allowance must be made to the defendant’s solicitor. But even if it were both the interest and the inclination of the solicitor to amend this practice, it is not in his power so to do. He might indeed amend it so far as his own charges go, but no farther. Over those of the Master’s clerks he has no controul; and he is moreover at the mercy of the clerk. If he quarrels with the clerk, he must expect to be thwarted and delayed in every suit which comes into that office, and to have his bills rigorously taxed. The master’s clerk, with the assistance of a clerk in court, taxes the solicitor’s bill; but there is nobody to tax the Master’s bill.”

V. Corruption and extortion, by bribes given to and received by Master’s clerks, in addition to the sinister profit, carried as above to the account of the Master.

P. 13. “The gratuities at present allowed to the Master’s clerks ought to be done away with altogether . . . . Solicitors who are in the habit of giving large gratuities to the clerks, will at any rate be looked upon favourably. Their business will be readily attended to, and oftentimes to the delay of others, who, in strictness, are entitled to priority.”

VI. Anno 1814, Lord Eldon’s eyes, forced to open themselves to fraud and extortion in one portentously scandalous instance, kept shut in all other instances, before and since.

P. 11. “With regard to copies of particulars of sale, where an estate is sold in the Master’s office, a material alteration has of late years been made. To such a height had these charges amounted, that in one instance (Casamajor v. Strode) £700 were claimed for compensation-money, in lieu of written copies of particulars of sale. In consequence of that charge, the general order of 24th March 1814 was made, by which the Master is allowed sixpence a side for so many printed copies of the particulars as there are actual bidders, and no more. There seems no good reason for making even this allowance. It would be fair enough, if the Masters are to continue to be paid by fees, to allow the expense of copying the particular for the printer, and even a fee, if thought necessary, for settling it; but beyond that, as there is no actual trouble, there should be no charge on the suitor.” p. 12.

Of the particulars above given, a general confirmation may be deduced from the contents of the (I now see) named, but not promiscuously published pamphlet, above alluded to—Mr. Vizard’s.

What is above is a small sample of that which is said to have place. Of what follows in sections 4, 8, and 9, the design is—to show how that which has place came, and comes, to have place.

SECTION III.

ANNO 1807.—ORDER BY CHANCELLOR AND MASTER OF THE ROLLS, AUGMENTING THE FEES OF OFFICES IN THE GIFT OF ONE OF THEM.

It consists of a printed pamphlet of 25 pages, bearing in the title-page the words following:—

“List of Costs in Chancery, regarding Solicitors, and also Clerks in Court, as increased by orders of Court, dated 26th February last; issued under the joint signatures of the Right Honourable the Lord Chancellor, and Master of the Rolls: being exact copies of those Orders. The same having been collated with the original Lists of the Court.

“London: printed for Heraud and Co., law stationers, Carey Street, corner of Bell Yard, by J. & W. Smith, King Street, Seven Dials, 1807.”

In the preamble to that part which regards the “clerks in court fees,” the order speaks of itself as establishing “a schedule of—increased fees.” Thereupon follows the schedule, and the number of the fees is forty-three.

Anno 1814. In pursuance of certain orders of the House of Commons, returns were made, amongst other chancery offices, from that of the Six-clerks, and another from that of the sworn and waiting clerks. These are comprised in pages 5, 6, 7, 8, of a paper entitled “Fees in Courts of Justice.” Dates of order for printing, 13th May and 11th July 1814. Nos. 234 and 250.

In the return relative to the sworn clerks, are reprinted the contents of the pamphlet above mentioned.

SECTION IV.

PROFIT TO SUBORDINATES WAS PROFIT TO SUPERIORS; SO, IN COURSE, TO SUCCESSORS.

Here begins the proof of the fact—that a twopenny loaf costs twopence: in Honourable and Right Honourable House, the proof will be insufficient; in any other, unless it were a right honourable one, it would be superfluous: for information, yes: but for reminiscence, it may have its use.

I. Wherever an office has any money value so has the patronage of it. By the patronage, understand the power of determining the individuals by whom, together, or one after another, it shall be possessed;—the whole power, or any share in it.

Take any office singly, compared with the value of the possession, that of the patronage may be less or greater. It is most commonly less; but it may be many times greater. Patron (say) a father near the grave; son, in early youth: value of the office if occupied by the father, not one year’s purchase; if by the son, a dozen years or more.

Present income of a Six-clerkship, about £1000 a-year: so stated to me by gentlemen belonging to the office. It is regarded as a sinecure;—patron, the Master of the Rolls. One of these judges was Sir Thomas Sewell: children, numerous. No further provision for this one, without injustice to others. Suppose it sold, what would it have been worth to him? Not a fifth of what it was by being given. £2000 the price usually got by patron. So at least said by gentlemen belonging to the office. This for the information of Mr. Robinson—the Mr. Robinson who, as far as I understand hitherto, to secure purity, interdicts sale, leaving gift as he found it.

Say patron and grandpatron, as you say son and grandson. Grand patronage is not so valuable as patronage, True: nor yet valueless. In the King’s Bench, is an office called the clerkship of the rules. Annual value, as per finance reports, 1797-8, £2767. Nominal joint patrons in those days, Earl of Stormont and Mr. Way; grandpatron, Earl of Mansfield, Lord Chief-Justice. Trustee for the Lord Chief-Justice, said Earl of Stormont and Mr Way: price paid £7000:—circumstances led me to the knowledge of it. But for grandpatron’s cowardice that cowardice which is matter of history) more might have been got for it. That or thereabouts was got for it a second time.

Would you know the money value of an office, exclusive of the emolument in possession? To the aggregate value of the patronage belonging to it, add that of the grandpatronage. Nor is that of great-grandpatronage nothing. Wherever you can see a grandpatron other than the king, seeing the king, you see a great-grandpatron.

A Mastership was a fortune to a daughter of Lord Erskine. Had he held the seals long enough, a Six-clerkship might have been a provision for a son, supposing the matter settled with Sir William Grant, who had no issue.

If either patronage, grandpatronage, or great-grandpatronage of the office are valueless, so is the possession of it.

In case of abuse, profit to individuals is one thing; mischief to the public, another. Profit from fee-gathering offices may be made either by sale or by gift. When by sale, small is the mischief in comparison of what it is when by gift. But this belongs to another head.

Neither by the Chancellor, nor by the Master of the Rolls (it may be said) are nominated any of the officers to whose fees the order gives increase. True: nor by this is the additional value, given by it to the patronage, lessened. Along with the values of the sworn-clerkship and the waiting-clerkship, rises that of the six-clerkship. Tenpence per folio is paid to sworn and waiting clerks; tenpence per ninety words, called a folio, for copies taken by them: out of each such tenpence, the six clerks, for doing nothing, receive four-pence. This is all they receive: an all which to some eyes may not appear much too little.

The measure was one of experiment: direct object, that project of plunderage, which will be seen continued and extended by the hands of Lord Eldon in 1807, and sanctioned by parliament in 1822: collateral, or subsidiary object on his part, giving additional strength to the dominion of judge-made over parliament-made law. Full butt did this order run against a special statute, made for remedy against this very abuse: not to speak of the general principle laid down, and thus vainly endeavoured to be established, by the petition of rights. But as to this, see next section.

Of the price the public was made to pay for this sinister profit, not more than half has, as yet, been brought to view. The other half went to stop mouths. Waste, all of it, as well as productive of correspondent delay, is what is exacted for all three sorts of clerks. Thus felt, and even yet say, the solicitors. The plunderable fund is composed of the aggregate property of all those who can afford to buy a chance for the article sold under the name of equity. The greater the quantity taken by the one set, the less is left for the other—see an experience of this shown in § 13. Preceded accordingly by the bonuses given to these more immediate cointeressees of the chancellor and his feudatory, was a like bonus given to the fraternity of solicitors.

SECTION V.

CONTRARY TO LAW WAS THE ORDER.

Not to speak of clauses of common, that is to say, imaginary law, called principles, borrowed or made by each disputant for the purpose of the dispute—full butt does the order run against indisputable acts of parliament;—acts of general application applying to taxation in any mode without consent of parliament;—acts of particular application, applying to taxation in this particular mode:—

1. First comes the generally-applying act, 25 Ed. I. c. 7, anno 1297—“We have granted for us and our heirs, as well to archbishops . . . . as to earls . . . . and to all the commonalty of the land, that for no business from henceforth we shall take such manner of aids, tasks, nor aprises, but by the common assent of the realm.”

2. Next comes 34 Ed. I. stat. 4, c. 1, anno 1306—“No tallage or aid shall be taken or levied by us, or our heirs, in our realm, without the good-will and assent of archbishops, bishops, lords, barons, knights, burgesses, and other freemen of the land.”

3. Now comes the specially-applying act, 20 Ed. III. c. 1, anno 1346—“First, we have commanded,” says the statute, “all our justices to be sworn, that they shall from henceforth do equal law and execution of right to all our subjects, rich and poor. And we have ordained and caused our said justices to be sworn, that they shall not from henceforth, as long as they shall be in the office of justice, take fee nor robe of any man but of ourself, and that they shall take no gift nor reward, by themselves nor by others privily or apertly, of any man that hath to do before them by any way, except meat and drink, and that of small value.”*

4. Lastly comes the all-comprehensively-applying clause in the act commonly called the Petition of Rights, 3, Ch. I., c. 1, § 20—“That no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of parliament.”

Turn back now to the judge-made law, and the enactors of it. Could they have had any doubt as to the illegality of what they were doing? Not unless these sages of the law had forgot the A, B, C of it.

But a pretence is made,—and what is it? “Whereas the same” (speaking of the fees of the offices in question) “have been at different times regulated by the orders of this court, as occasion required.”

The “different times,”—what are they? They are the one time, at which, by a like joint order, anno 1743, 17 Geo. II., Lord Chancellor Hardwicke, his Master of the Rolls, Fortescue, “did order and direct that the sworn-clerks and waiting-clerks do not demand or take any greater fees or reward for the business done or to be done by them in the six-clerks’ office, than the fees and rewards following:” whereupon comes a list of them.†

In any of the many reigns in which parliament never sat but to give money, and in which, could kings have kept within bounds, there would have been an end of parliaments,—as the value of money sunk, augmentation of subordinates fees by superiors might have had something of an excuse. But Lord Hardwicke—while he was scheming this order, he was receiving, in the House of Lords, money-bills in profusion, brought up by the House of Commons. This tax of his—would the Commons have given, or would they have refused, their sanction to it? Under either supposition, this tax of his imposition was without excuse.

Well, and suppose that Chancellor and his Master of the Rolls had done what Lord Chancellor Erskine and his Mentor did,—“order and direct that the said schedule of fees be adopted?” (p. 18.) But they did no such thing: they were too wary: the time was not ripe for it. George the Second had a Pretender to keep him in check: George the Third had none. True it is, that by their adroitly-worded prohibition, all the effect of allowance was produced. But, had anything been said about the order, there were the terms of it:—all that these models of incorruption had in view by it was repression: allowance was what it was converted into, by underlings acting out of sight of superiors. Thus, on a ground of rapacity, was laid an appropriate varnish—a coating of severe and self-denying justice.

The caricature-shops used to exhibit divers progresses: progress of a Scotchman, progress of a parson, and some others. In these pages may be seen that of a fee-gathering judge. Seen already has been the first stage of it.

If Lord Erskine, or rather the unfledged equity-man’s Mentor, had any doubts of the illegality of what they were doing, no such doubts had Lord Eldon: for now comes another motion in the gymnastics of lawyer-craft—the last stage, or thereabouts, which for the moment we must anticipate.

The last stage in the progress is that which is exhibited in and by that which will be seen to be his act—the act of 1822—3 Geo. IV. c. 69, as per § 13 of these pages: the assumption, per force, recognised to be illegal; because, as will also be seen, the court of King’s Bench had just been forced to declare as much: whereupon came the necessity of going, after all, to parliament: illegality recognised, but a different word, the word effectually-employed, that from all who were not in the secret, the evil consciousness might be kept hid. “Whereas,” says the preamble, “it is expedient that some provision should be made for the permanent regulations and establishment of the fees of the officers, clerks, and ministers of justice of the several courts of Chancery, King’s Bench, Common Pleas, Exchequer, and Exchequer Chamber, at Westminster, and of the clerks and other officers of the judges of the same courts; but the same cannot be effectually done but by the authority of parliament” . . . . thereupon comes the first enactment, enabling judges to deny and sell justice for their own profit, and giving legality and permanence (and, by the blessing of God, Mr. Justice Bailey, and Mr. Justice Park! eternity) to the things of which we have been seeing samples.

As to the effectuality of the thing, what had been done in this way without parliament and against parliament, had been but too effectually done; and, but for the so lately disclosed illegality, might and would have continued to be done, as long as Matchless Constitution held together. At the same time, what is insinuated is—that, although what had thus been done without parliament, had hitherto and all along been done legally, yet, for want of some machinery, which could not be supplied but by parliament, it could not in future be so effectually done, as it would be with the help of such machinery, which, accordingly, the act was made to supply. Not an atom of any such subsidiary matter is there in the act. All that this act of Lord Eldon’s does, is to authorize and require himself, and the other judges in question—the Westminster-Hall chiefs—to do as it had found them doing: taxing the injured—taxing them on pain of outlawry—taxing the people, and putting the money into their own pockets. In § 13, the reader will see whether what is here said of the absence of all machinery is not strictly true. Nothing whatever, besides what is here mentioned, does the act so much as aim at.

SECTION VI.

BY IT, INCREASE AND SANCTION WERE GIVEN TO EXTORTION.

The illegality of the order supposed, taking money by colour of it, is extortion;—either that is, or nothing is.

Ask Mr. Serjeant Hawkins else. As good common law as Mr. Anybody else, or even my Lord Anybody else, makes, is that made by Mr. Serjeant Hawkins; so says everybody. Look to ditto’s Pleas of the Crown, vol. ii. b. i. ch. 68, § 1. In the margin especially, if you take Leach’s edition, or any subsequent one, you will see a rich embroidery of references: if the ground does not suit you, go to the embroidery, and hard indeed is your fortune, if you do not find something or other that will suit you better.

“It is said,” says he, “that extortion, in a large sense, signifies any oppression under colour of right; but that, in a strict sense, it signifies the taking of money by any officer, by colour of his office, either where none at all is due, or not so much is due, or where it is not yet due.” So much for the learned manufacturer. For the present purpose, the strict sense, you will see, is quite sufficient: as for the large sense, this is the sense you must take the word in, if what you want is nonsense. If you do, go on with the book, and there you will find enough of it; and that too without need of hunting on through the references; for if, with the law-making serjeant, you want to enlarge extortion into oppression, you must strike out of extortion the first syllable, and, with it, half the sense of the word; which done, you will have tortion—which will give you, if not the exact synonyme of oppression, something very little wide of it; and here, by the bye, you have a sample of the sort of stuff on which hang life and death under common law.

SECTION VII.

SO, TO CORRUPTION.

Corruption? No: no such head has the learned aforesaid manufacturer and wholesale dealer in crown-law. No matter: he has bribery. Rambling over that field, he picks up corruption, which he takes for the same thing. Had he lived in present times, well would he have known the difference. Bribery is what no judge practises: would you know what prevents him, see “Observations on the Magistrates’ Salary-raising Bill:” Corruption—self-corruption—is what, as you may see there and here, every Westminster-Hall chief judge has been in use to practise; and is now, by act of parliament, anno 1822, 3 Geo. IV. c. 69, allowed to practise.

For bribery, too, Hawkins has his strict sense, and his large sense. It is in its large sense that he fancies it the same thing with corruption. Neither to bribery, however, nor to corruption, does this law of his apply itself, in any other case than that in which he who commits it has something or other to do with the administration of justice.* But, as before, this is all that is wanted here.

“Bribery,” says he, “in a strict sense, is taken for a great misprision of one in a judicial place, taking any valuable thing whatsoever, except meat and drink of small value,† of any one who has to do before him any way, for doing his office, or by colour of his office, but of the king only.

“§ 2. But bribery in a large sense,” continues he, “is sometimes taken for the receiving or offering of any undue reward, by or to any person whatsoever, whose ordinary profession or business relates to the administration of public justice, in order to incline him to do a thing against the known rules of honesty and integrity; for the law abhors [inuendo the common law, that is to say, it makes the judges abhor] any the least tendency to corruption, in those who are any way concerned in its administration.”

Here the learned serjeant waxes stronger and stronger in sentimentality, as he ascends into the heaven of hypocrisy, where he remains during the whole of that and the next long section. “Abhor corruption!” Oh yes, even as a dog does carrion.

Be this as it may, note with how hot a burning iron he stamps bribery and corruption on the foreheads of such a host of sages:—of Lord Erskine (oh fie! isn’t he dead?)—Sir William Grant (oh fie! was he not an able judge?)—and Lord Eldon, the Lord of Lords, with his cæteras the inferior chiefs.

SECTION VIII.

HOW LORD ELDON PRONOUNCED THE EXACTION CONTRARY TO LAW—ALL THE WHILE CONTINUING IT.

The following is the tenor of a note obtained from an eminent barrister present, who had particular means and motives for being correct as to the facts, and who does not, to this moment, know the use intended to be made of it. In the Court of Exchequer, February 5, 1820:—

“donnisonv.currie.

“A question was made upon a petition, whether certain allowances, made to a solicitor on the taxation of his bill of costs, were regular, which they would have been, if the court of Exchequer adopted in its practice the additional allowances made by Lord Erskine’s order, otherwise not.

“It was objected that those additional allowances were not adopted by the Exchequer, inasmuch as Lord Erskine’s order was not legal, and that Lord Eldon had intimated an opinion that he did not consider it as legal.

“The Chief Baron (Richards) admitted that he understood Lord Eldon had said that he did not consider Lord Erskine’s order as being legal, but that it had been now so long acted upon, that the court must be considered as having sanctioned it, and that he (Richards) should follow what had been said by Lord Eldon.” Thus far the report.

As to its being for his own benefit, see § 4.

Thirteen years, and no more, having sufficed thus to set bench above parliament, anno 1820, quære, what is the smallest length of time that will have become sufficient before the reign of John the Second is at an end?

Objector—Idle fears! how inconsiderable, in all this time, the utmost of what the people can have suffered from the exercise of this power!

Answer—True, the plunderage has its limit. Thank for it, however—not learned moderation, but a very different circumstance, which will be explained in § 13, when the act by which the last hand was put to the plan comes to be considered: moreover, what makes fees so stickled for in preference to salary, is—that as plunderable matter increases, so will plunderage.

As to its being for his own profit that Lord Eldon thus continued the exaction, see § 4.

Bravo! Lord Chancellor Eldon!—bravo! Lord Chief Baron Richards! “So long!” that is to say, just thirteen years: assuming what of course is true—that of the course of illegality begun under Lord Erskine, and pursued under Lord Eldon, the continuation commenced with his re-accession. Years, thirteen! Here then is one length of time which suffices to entitle the Westminster chiefs, all or any one of them, to set aside any act or acts of parliament they please: and in particular any act of parliament, the declared object of which is to prevent them from plundering, without stint, all people, who can and will buy of them, what they call justice, and from denying it to all who cannot.

But Bar? . . . . what said Bar to this? Oh! Exchequer is a snug court: small the quantity of Bar that is ever there. But, were there ever so much, Bench cannot raise itself above parliament but it raises Bar along with it. Between Bench and Bar, even without partnership in money or power, sympathy would of itself suffice to make community of sinister interest. The same fungus, which, when green, is made into Bar, is it not, when dry, made into Bench?

No want of Bar was there, anno 1801, when Lord Eldon, as per next section, laid the ground for the decision, thus pronounced anno 1820; as little, when, the next year (1821) as per § 12, ground and all were laid low by the shock of an earthquake. Matchless Constitution (it will be seen) may be turned topsy-turvy, and lay-gents know nothing of the matter: Bar looking on, and laughing in its sleeve.

Note here the felicity of Lord Eldon: the profit reaped by him from his Hegira of a few months. We shall soon see how, from one of the most unexpectable of all incidents, the grand design of the grand master of delay experienced a delay of six years: a delay, which, like so many of his own making, might never have found an end, but for the short-lived apparent triumph and unquiet reign of the pretenders to the throne. When, upon their expulsion, the legitimates resumed their due omnipotence, it seemed to all who were in the secrets of providence—and neither Mr. Justice Bailey nor Mr. Justice Park, nor any other chaplain of Lord Eldon’s, could entertain a doubt of it—that it was only to give safety and success to this grand design of his, that the momentary ascendency of the intruders had been permitted. The Chancellor, by whom the first visible step in the track of execution was taken, being a whig,—not only was a precedent set, and ground thus made for the accommodation of Lord Eldon, but a precedent which the Whigs, as such, stood effectually estopped from controverting. Poor Lord Erskine—all that he had had time to do, was to prepare the treat: to prepare it for his more fortunate predecessor and successor. Scarce was the banquet on the table, when up rose from his nap the “giant refreshed,” and swept into his wallet this, in addition to all the other sweets of office. As to poor Lord Erskine, over and above his paltry £4000 a year, nothing was left him, but to sing with Virgil—Sic vos non nobis mellificatis apis.

SECTION IX.

HOW THE CHANCELLOR HAD LAID THE GROUND FOR THE MORE EFFECTUAL CORRUPTION OF HIMSELF AND THE OTHER CHIEFS.

For this ground we must, from 1821, go as far back as the year 1801. In the explanation here given of the charges, it seemed necessary to make this departure from the order of time; for, till some conception of the design, and of a certain progress made in the execution of it, had been conveyed, the nature of the ground, so early, and so long ago, laid for it, could not so clearly have been understood.

In nonsense (it will be seen) was this ground laid: plain sense might have been too hazardous. The document in which the design may be seen revealed, is another reported case, and (what is better) one already in print: Ex-parte Leicester, Vesey Junior’s Equity Reports, VI. 429. Buried in huge grim-gribber folios, secrets may be talked in print, and, for any length of time, kept. The language nonsense, the design may be not the less ascertainable and undeniable. Nonsense more egregious was seldom talked, than, on certain occasions, by Oliver Cromwell. Whatever it was to the audience then, to us the design is no secret now.

Here it follows—that is to say, Lord Eldon’s.

Vesey Junior, VI. 429 to 434. Date of the report 1801, Aug. 8. Date of the volume, 1803, p. 432.—Lord Chancellor (p. 432)—“A practice having prevailed, for a series of years, contrary to the terms of an order of the court, and sometimes contrary to an act of parliament, it is more consistent to suppose some ground appeared to former judges, upon which it might be rendered consistent with the practice: and therefore, that it would be better to correct it in future, not in that particular instance. Upon the question, whether that order is to be altered, or to be acted upon according to its terms, which are at variance with the practice, I am not now prepared to deliver a decisive opinion: for this practice having been ever since permitted to grow up as expository of the order, if my opinion was different from what it is as to the policy of the order according to its terms, I must collect, that there is in that practice testimony given, that, according to the terms, it would be an inconvenient order.”

No abstract this—no paraphrase—verba ipsissima. Eldon this all over. None but himself can be his parallel.

Nothing which it could be of any use to insert, is here omitted. Those who think they could find an interpretation more useful to Lord Eldon by wading through the five or six folio pages of his speech, let them take it in hand, and see what they can make of it. All they will be able to do, is to make darkness still more visible.

SECTION X.

HOW THE DESIGN WAS STOPT SHORT BY A SOLICITOR, TILL SET A-GOING AGAIN, AS ABOVE.

The deepest-laid designs are sometimes frustrated by the most unexpected accidents. From the hardihood of a man whose place was at his feet, we come now to see a design so magnificent as this of the Chancellor’s, experiencing the above-mentioned stoppage of six years.

Before me lies an unfinished work, printed but not published: title, “Observations on Fees in Courts of Justice:” Date to the Preface, Southampton Buildings, 17th November 1822. In that street is the residence of Mr. Lowe, an eminent solicitor. The work fell into my hands without his knowledge. He is guiltless of all communication with me. This said, I shall speak of him as the author without reserve. From that work I collect the following facts. Year and month, as above, may be found material.

1.—Page 20. Early in Lord Eldon’s first chancellorship, to wit, anno 1801, his lordship not having then been five months in office, Mr. Lowe, in various forms, stated to his lordship, in public as well as in private, that in his lordship’s court, “the corruption of office had become so great, that it was impossible for a solicitor to transact his business with propriety.” This in general terms: adding, at the same time, what, in his view, were particular instances, and praying redress. Note, that to say in his lordship’s court, was as much as to say under his lordship’s eye:—after such information, at any rate, if not before.

2.—Page 20. Argument thereupon by counsel: Mansfield, afterwards Chief-Justice of the Common Pleas; Romilly, afterwards Solicitor-General. On the part of both, assurance of strong conviction that the charge was well founded; proportionable fears, and not dissembled, of the detriment that might ensue to the personal interest of their client from the resentment of the noble and learned judge.

3.—Page 20, 21. Proof exhibited, of the reasonableness of these fears:—“Judge angry”....Petitioner “bent beneath a torrent of power and personal abuse.”

4.—Page 21. Five years after, to wit, anno 1806—Lord Erskine then Chancellor—similar address to his lordship; a brief again given to Romilly (at this time solicitor-general) but with no better fortune: further encouragement this rebuff—further encouragement, to wit, to Lord Eldon, when restored.

3.—Page 21.—In a note, reference to the above-mentioned case, Ex-parte Leicester, in Vesey, junior, with quotation of that portion of his lordship’s speech, which may be seen above in § 9. Hence a conjecture, that in that same case, Mr. Lowe himself, in some way or other, had a special interest. From the reference so made to that case, and his lordship’s speech on the occasion of it, it should seem that the design of it, as above, was not a secret to Mr. Lowe, and that his lordship knew it was not.

Here ends the history of the stoppage.

6.—Preface, pp. 6, 7. Upwards of eighteen months antecedently to the above-mentioned 17th November 1822, say accordingly, on or about 17th May 1821, page 6, on the occasion of two causes—Limbrey against Gurr, and Adams against Limbrey,—laid by Mr. Lowe before the Attorney-General of that time, to wit, Sir Robert Gifford, matters showing “that the increasing amount of fees and costs was like a leprosy rapidly spreading over the body of the law.”

7.—Preface, p. 3. Anno 1821, Trinity vacation—day not stated—to wit, sometime between July and November, mention made of his lordship’s courtesy, and of “a promise which his lordship”—(wrath having had twenty years to cool)—“very condescendingly performed.” On this occasion, hearing before his lordship, Master of the Rolls sitting with him: proof presumptive, not to say conclusive, that, on this occasion, Lord Erskine’s order was under consideration; “Controverted” by Mr. Lowe, a fee that had received the confirmation of one of the sets of commissioners, appointed by Lord Eldon for this and those other purposes that everybody knows of.

8.—Preface, p. 5. Anno 1822, Easter term. Observations on the same subject, laid before the “Master in Ordinary,” meaning doubtless one of the officers ordinarily styled Masters in Chancery, ten in number, exclusive of the Grand Master, the Master of the Rolls. With as good a chance of success might the gentleman have laid them before the Master of the Mint.

9.—P. 5. Anno 1822, soon after the above “information and bill” filed against Mr. Lowe, by Mr. Attorney-General, and said to be fully answered. Solicitor to the Treasury, “Mr. Maule.” Answer put in by defendant, attachment for contempt in not answering. Quære, what means “information” and “bill?” Information in King’s Bench? Bill in Chancery? But what answer can an information in King’s Bench admit of?

10.—P. 6. Shortly afterwards, Observations laid by him before the lords of the treasury, soliciting the investigation of the charge laid before the Attorney-General (Sir Robert Gifford) eighteen months before, on the occasion of the cases of Limbrey and Gurr, &c. as per No. 6.

Containing, as it does, pages between 5 and 6, this same preface is too long for insertion here. Carefully have the, above allegations been culled from it. Of the passage contained in the body of the work, the matter is too interesting and instructive to be omitted: it will be found below.

Here then is one source, from which, had it ears for corruption, Honourable House might learn at any time, whether, from the above alleged corruption, Lord Eldon has not, during the whole of his two chancellorships, been reaping profit, and whether it was possible so to have been doing without knowing it. By Lord Eldon’s present set of nominees, evidence from Mr. Lowe has, I hear, been elicited. Little, if any fruit, I hear, has been obtained from it. No great wonder any such barrenness. Anything unacceptable to their creator they could not be very desirous to receive: nor, perhaps. Mr. Lowe, since the experience had of his lordship’s “courtesy,” to give.

Astonished all this while at the stoppage—astonished no less than disappointed—must have been the goodly fellowship—the solicitors and clerks in court; importunate for six long years, but not less vain than importunate, had been their endeavours to obtain from Lord Eldon and his Sir William Grant—yea, even from Lord Eldon!—that boon, which with the same Sir William Grant for mediator and advocate,—at the end of six short months, we have seen them obtaining from Lord Erskine:—the said Sir William Grant being, as per § 4, in quality of patron, in partnership with the said clerks in court.*

P. 19. “An attempt in 1801 to reform practice.”

Whilst Lord Thurlow held the great seal, tables of fees taken by officers in the court of Chancery remained set up or affixed in their respective offices, and the most trifling gratuity was received with a watchful dubious eye, and cautious hand; but soon after the great seal was resigned by his lordship, those tables began to disappear, and (in 1822) have never since been renewed:—gratuities then augmented, until they had no limits: and so early as the year 1801, when increased fees and costs had attained little of the strength and consistency at which they have since arrived, the author of these observations stated to the court, “that the corruption of office had become so great, that it was impossible for a solicitor to transact his business with prepriety.”† To justify such statement, he, by petition, set forth certain payments made, which he insisted ought not to have been demanded or received, and prayed for redress; and he wrote a letter to one of the Lord Chancellor’s secretaries, in which he stated an opinion, which (until the great charter, and the before-mentioned statutes of King Edward III, and King Richard II., are repealed,) he is disposed to maintain: and which (though otherwise advised by his counsel) he then refused to retract.* The petition came on for hearing, and was supported by Mr. Mansfield and Mr. Romilly, with a spirit, and in a manner, peculiar to those advocates, and satisfactory to the feelings of the petitioner; and resisted by Mr. Attorney-General (Sir Spencer Perceval) and Mr. Richards.

In vain did Mr. Mansfield urge, that “gratuity was the mother of extortion,” and Mr. Romilly state the intrepidity of his client. On that occasion, the author of these observations, who never heard an angry judge give a just judgment, bent beneath a torrent of power and personal abuse.

On the coming in of a new administration, in the year 1806, the author of these observations addressed a letter to Lord Erskine, and prepared to further hear his petition; but he was given to understand, by those who had once applauded his efforts,† that a a change of men did not change measures; and since that time the irregular increase of fees and costs has introduced much confusion into the law.

SECTION XI.

HOW THE OTHER CHIEFS WERE CORRUPTED ACCORDINGLY.

As to what regards the Chief of the Exchequer Judicatory, an indication has been seen in § 8. As to what regards King’s Bench and Common Pleas, the like may be seen in § 12. Invitation,—“Take and eat.” Seen it has been and will be, whether there was any backwardness as to acceptance.

Forget not that these men were, all of them, his creatures: breath of his nostrils; sheep of his pasture.

SECTION XII.

HOW THE ILLEGALITY GOT WIND: AND HOW FELIX TREMBLED.

Of the spread of the contagion from Chancery to Exchequer, indications were given in § 8: mention was there made of its having completed the tour of Westminster Hall. What is there said is no more than general intimation: the manner how, comes now to be set forth.

Anno 1821, lived a broken botanist and ex-nurseryman, named Salisbury. To distinguish him from a namesake of the gentleman-class, Salisbury minor is the name he goes by among the Fancy. At the end of a series of vicissitudes, he had sunk into one of those sinks of misfortune, in which, to help to pamper over-fed judges, debtors are squeezed by jailors, out of the substance that should go to creditors. As from Smithfield an overdriven ox into a china-shop—breaking loose one day from his tormentors, Salisbury minor found means, somehow or other, to break into one of the great Westminster-Hall shops; in which, as often as a demand comes for the article so mis-called justice, bad goods are so dearly sold to all who can come up to the price, and denied, of course, to those who cannot. The china-shop scene ensued. Surprised and confounded, the shopmen exhibited that sort of derangement, which the French express by loss of head—ils ont perdu la tête. Under the notion of defence, confessions came out, which come now to be recorded.

Anno 1821, Nov. 21.—(The date is material.) Barnewall and Alderson’s King’s Bench Reports, Vol. V. p. 266.

“In the Matter of Salisbury (in Person!)

“Salisbury in person had obtained a rule nisi, for one of the tipstaffs of the court to answer the matters of his affidavit. The affidavit stated, that the tipstaff had taken a fee of half-a guinea, for conveying him from the judge’s chambers (to which he had been brought by habeas corpus) to the King’s Bench prison, such fee being more than he had a right to demand, according to the table of fees affixed in the King’s Bench, in pursuance of a rule of this court.

“Gurney and Platt showed cause, upon affidavits stating that the fee had been taken for a very long period of time by all tipstaffs in both courts, and that it was allowed by the Master in costs.

“The court, however, adverting to the statutes, 2 Geo. II. c. 22, § 4, and 32 Geo. II. c. 28, § 8, and the rule of court, of Michaelmas term, 3 Geo. II., and the table of fees settled in the following year, said, that it was clear, that the tipstaff had no right to take any other fee for taking a prisoner from the judge’s chambers to the King’s Bench prison, than six shillings, which was the fee allowed him in that table. They, therefore, ordered the fee so taken to be returned to the complainant.”*

Figure to himself, who can, the explosion. Bancum Regis shaken, as by an earthquake—Bancum Regis in an uproar!—the edifice it had cost Lord Eldon twenty years to rear, laid in ruins. We are above parliament, had said, as above, Lord Eldon. “Alas! no,” at the first meeting cried Lord Abbott: “I could not for the life of me, keep where you set us. I had not nerve for it. That fellow . . . . such impudence! who could have thought it? As to the fees, it is from parliament, you see, we must have them now, if at all. It may take you some little trouble; but you see how necessary it is, and you will not grudge it.”

This is not in the report; but it is in the nature of the case, and that is worth a thousand law reports, drawn up by toads under harrows.

Think now of the scene exhibited in and by King’s Bench:—culprit and judge under one hood—Guilty or not guilty? Not guilty? O yes, if the Master, whose every-day business it is to tax costs, knows not what they are: if the Chief-Justice, whose every-day business it is to hear discussions about costs, knows not what they are, or what they ought to be. See now how the accounts stands:—the money account. Of the 10s. 6d., legalized, say 6s.: remains confessed to have been extorted, 4s. 6d.: subextortioner’s profit, the 4s. 6d.: head-extortioner’s, the 4s. 6d., minus x: to find the value of x see above, § 4, and forget not, any more than Lord Eldon and Lord Abbott forgot, that pounds and thousands of pounds are made of pence and shillings.

Mark now another sort of account. Case, a criminal one. Co-defendants, had the list been complete, Tipstaff, Master, and Chief-Justice. Had it been as agreeable to punishers to punish themselves as others, what a rich variety of choice was here! Motion for imprisonment by attachment as above: for this is what is meant by answering affidavits: indictment for extortion, indictment for corruption, indictment for conspiracy; information for all or any of the above crimes.

Mark now the denouement. The case, as above, a criminal one: the crime not punished, but, without the consent of the sufferer, compounded for; of the fruit of the crime, the exact nominal amount ordered to be restored:—not a farthing even given to the hapless master-man, by whose sad day’s labour thus employed, so much more than the value had been consumed in thus sueing for it: with cost of affidavits several times as much. After seeing in this precedent the utmost he could hope for—what man, by whom like extortion had been suffered from like hands, would ever tax himself to seek redress for it? Redress—administered in semblance, denied in substance. With not an exception, unless by accident, such, or to an indefinite degree worse, is Matchless Constitution’s justice!

But the punishment?—where was the punishment? This is answered already. Had the order for redress comprised a sixpence beyond the 4s. 6d., the inferior malefactor might have turned upon his principal, and the fable of the young thief, who at the gallows bit his mother’s ear off, have been realized:—“Isn’t it you that have led me to this? These four-and-sixpences that I have been pocketing—is there any of them you did not know of? Had it not been for this mishap, would not my place have been made worth so much the more to you, by every one of them? Is there any one of them that did not add to the value of the place you will have to dispose of when I am out of it? Why do you come upon me then? Can’t you afford it better than I can? Pay it yourself.”

But—the two learned counsel, who thus fought for the 4s. 6d.—by whom were they employed?—by Tipstaff, Master, or Chief-Justice? Not by Tipstaff, surely: seeing that his cause was so much the Chief-Justice’s, he would not thus have flung away his money: he would not have given six, eight, or ten guineas to save a 4s. 6d.: these, if any, are among the secrets worth knowing, and which House of Commons will insist on knowing. Insist?—But when? when House of Commons has ceased to be House of Commons.

Well, then, this four-and-sixpenny tripartite business—is it not extortion? Is it not corruption? If not, still, for argument’s sake, suppose, on the part of all three learned persons—all or any of them—suppose a real desire to commit either of these crimes; can imagination present a more effectual mode of doing it? Till this be found, spare yourself, whoever you are, spare yourself all such trouble as that of crying out shame! shame! contempt of court! calumny! blasphemy!

Contempt of court, forsooth! If contempt is ever brought upon such courts (and, for the good of mankind, too much of it cannot be brought upon them,) it is not in the telling of such things, but in the doing of them, that the culpable cause will be to be found.

Here, then, we see, were statutes—here (according to Lord Eldon’s instructions) laid down as per § 9, at the outset—here were rules of court disposed of in the same way, and at one stroke. Anno 1801, in the first year of his reign—disposed of at one stroke, and in the same way. A liberty which might so easily be taken with acts of parliament—hard indeed it would have been, if a judge might not take it with the rules of his own court. Conformable (we see here exactly) was this operation to the instructions laid down by him, as per § 9, just twenty years before, anno 1801, in the first year of his reign. As to the rules of court, it was not in the nature of the case that they should present any additional difficulty; rules, which, if it were worth the trouble, and would not make too much sensation, he might have repealed in form at any time.

Be this as it may, here was the exact case, so long ago provided for by Eldonic providence: the case, which, being the principle laid down, with virtual directions given, for the guidance of his next in command, had been made broad enough to fit. “You need not be told (say these directions) how much more obedience-worthy common is than statute law:—law of our own making, than any of the law we are forced to receive from laygents. But, though you should find one of our own laws in your way—nay, though with one of their’s, you should find in your way one of our’s to give validity and strength to it—never you mind that; your business is to make sure of the fees. At the same time, for decency’s sake, while our underlings, who get more of them than we do, are screwing them up (and you may trust them for that) you of course will know nothing of the matter. Should any unpleasant accident happen—such as the having the table with the lawful fee, in company with the proof of the additional money habitually exacted, bolted out upon you in the face of the public, you will of course be all amazement. Though the thing can never have taken place, but under your own eye—while the prisoner was beginning to be conducted from your own chambers, where you had just been examining him—never had you so much as suspected the existence of any such difference.”

As to Lord Abbott, whatever want of disposition on his part there may have been to pay regard to acts of parliament, no such want could there have been as to any such instructions as these of Lord Eldon’s. But whether it was that he had not got them by heart, or that when the time came to repeat them and apply them to practice, his heart failed him,—so it was—they were not followed: and so, out came the confession that has been seen: the confession in all its nakedness.

This is not all: not more than three years before, this very fee had been taken into consideration by specially-appointed authority, and the 4s. 6d. disallowed. Under the head of ‘Tipstaff,’ “the table of 1760” (say certain commissioners, of whom presently) “directs the fee of 6s. to be paid to the tipstaff that carries any prisoner committed at a judge’s chambers to the King’s Bench prison.” . . . . “The fee of 10s. 6d. we conceive to have been taken in respect of these commitments . . . . for twenty-five years, and probably longer: but we recommend that the fee of 6s. only be received in future.”*

Mark now the regard manifested by these commissioners—by these commissioners of Lord Eldon’s—for the authority of parliament. Recommendation soft as lambskin: of the extortion, and contempt of parliament, impudent as it was, not any the slightest intimation, unless the rotten apology, thus foisted in instead of censure, be regarded as such. Of this recommendation, the fruit has been already seen: the fee taken, and, for aught that appears, uninterruptedly taken notwithstanding. What? In all the three intervening years, the Chief-Justice, had he never heard of any such recommendation?—never heard a report, of which his own court, with the fees belonging to it, were the subject?—never seen any thing of it?

And the commissioners? For what cause disallow the 4s. 6d.? Only because the act of parliament, and the contempt so impudently put upon it, and the extortion and corruption for the purpose of which the contempt was put, had been staring them in the face. Men, who from such hands accept, and in this way execute, such commissions—is not some punishment their due? Yes, surely: therefore here it is. Public—behold their names!—1. John Campbell, Esq. Master in Chancery;—2. William Alexander, Esq. then Master, now, by the grace of Lord Eldon, Lord Chief Baron of the Exchequer;—3. William Adams, Doctor of Civil Law;—4. William Osgood, Esq.;—5. William Walton, Esq.

Accompanied are these recommendations by certain non-recommendations. From those as to tipstaffs, reference is made to ditto as to Marshal: and there it is, that, after stating (p. 172) that his profit arises chiefly out of two sources, of which (be it not forgotten) the tap is one—with this source before them it is, that (after ringing the praises of it) another of their recommendations is—“that this matter be left in the hands of the court to which the prison more immediately belongs:” in plain English, of the Chief-Justice, whose interest it is maximize the profit in all manner of ways, and of whose emoluments they saw a vast portion, rising in proportion to the productiveness of this source. Throughout the whole of the report, except for a purpose such as this, not the least symptom of thinking exhibited: “fees taken so much, we recommend so much:” such, throughout, is the product of the united genius of these five scholars of the school of Eldon.*

See now, Mr. Peel, and in its genuine colours, this fresh fruit of the consistency of your consistent friend. See, in this rich fruit, the effect and character of his commission. Oppose now, Mr. Peel, if you have face for it; oppose now, Mr. Attorney-General, if you have face for it: oppose now, Mr. Attorney-General Copley—for neither must your name be covered up—the permitting of the House of Commons to exercise the functions of the House of Commons.

Oppose now, if you have face for it, “the dragging the judges of the land” before the Catos whom you are addressing—the tribunal of parliament. Fear no longer, Mr. Peel, if ever you feared before, the obtaining credence for your assurance—that it was by Lord Eldon his Majesty was advised to commission Lord Eldon to report upon the conduct of Lord Eldon. Mr. Canning—you, who but two years ago—so light in the scale of sentimentalism is public duty weighed against private friendship,—(and such friendship!)—you, who so lately uttered the so solemn promise never to give a vote that should cast imputation upon Lord Eldon,—watch well, Sir, your time, and when, these imputations having come on, votes come to be given on them, repress then, if possible, your tears, and, wrapping yourself up in your agony, hurry out of the House.

SECTION XIII.

HOW THE CHANCELLOR WENT TO PARLIAMENT, AND GOT THE CORRUPTION ESTABLISHED.

The explosion has been seen. Blown by it into open air, was the scheme of taxing without parliament, and in the teeth of parliament. At the same time, a handle for denunciation was left prominent; and it has been seen how broad an one: a handle too, which some Williams or other might at any time lay hold of, and give trouble: the trouble which the driver of pigs has with his pigs—the trouble of collecting honourable gentlemen together, and whistling them in when the question is called for. Delay, therefore, was not now in season. November 21, 1821, was the day on which the breach, as above, was made: a session did not pass without providing for the repair of it: the 10th of June 1822, is the day on which the first stone was laid; and how thorough and complete the repair is, remains now to be shown. The hand of parliament being the only applicable instrument, stooping at last to employ it could not but be more or less mortifying to a workman to whom, for so many years, it had been a football. But, to Lord Eldon, the part of the reed is not less familiar than that of the oak; and what was lost in universally applicable power will be seen gained in ease and tranquillity, reference had to this special and most valuable use of it.

Act 22d July 1822, 3 Geo. IV. c. 66.—Title, “An Act to enable the Judges of the several Courts of Record at Westminster to make Regulations respecting the Fees of the Officers. Clerks, and Ministers of the said Courts.”

The preamble has been seen: business of it, skinning over the past illegality, section 6. Business of the first, empowering these same judges to screw up to a maximum, and without stint, the accustomed fees: of the second, to add any number of new ones: of the third, making it, to this effect, the special duty of all underlings to do whatever their masters please: of the fourth, anxiously easing them of the trouble of regulating solicitors’ fees, forasmuch as nothing was to be got by it: of the fifth, providing, as has been and will be seen, for the concealment of the fees as before, should more be to be got at any time by their being concealed than by their being known: of the sixth, which is the last, providing compensation for any the smallest fee, which, by accident, should happen to slip out: should any such misfortune ever happen, the losers are not only authorised, but “required,” to tell “his Majesty” of it.

For every possible additional duty, an additional fee, or batch of fees: Good. In § 14, or elsewhere, it will be seen how it is that, by multiplying such duties under the rose, equity pace, and equity cost, have been rendered what they are.

Everything at “discretion,” (§ 1:) everything as they “shall see fit,” (§ 1:) the people of England, all who have redress to seek for injury from without doors—all who have to defend themselves against any of those injuries of which these same judges are the instruments—all who have to defend themselves against injuries, the seat of which is in the pretended seat of redress—all who have to defend themselves against the attacks of any of those villains with whom Lord Eldon has thus placed these judges, together with himself, in partnership—all, all are thus delivered up bound, to be plundered in secret, without stint or controul, by the hands of these same judges. Never could more solicitude have been demonstrated: never more appropriate talent, as well as care, expended in satisfying it: so exquisite the work, the most exquisitely magnifying microscope might be challenged to bring to view a flaw in it. In the style of English legislation, it may be given as a model: as a study—for a young draughtsman, who, for sections a yard long, looks to be paid at so much a word. The same hand, which, had no better interest than the public’s been to be provided for, would have left loop-holes, through which the entire substance of the measure might be extracted, has, in this its darling work, as if by an hermetic seal, closed all such crannies. Could this pamphlet have been made to hold it, I should have copied it, and pointed out the beauties of it. For comprehensiveness it has but one rival, and that is in the law called civil law. Quod principi placuit legis habet vigorem. For principi, put judici, you have the act of English law—the act of George the Fourth.

The enacting part could not be too clear of equivocation: and not a particle is to be found in it. The preamble presented an irresistible demand for equivocation; and here it is. Seen already (in § 5) has been this same preamble, with its essential word effectually. Note here the use of it: it is this. The more effectually to turn men’s minds aside from the idea of the illegality,—causing them to suppose, that though nothing had been done but what was legal, strictly legal, yet, to give to what had been done its full effect, legal machinery in some shape or other was needed, in addition to such as learned workmen stood already provided with: and that, to give existence to such additional machinery was accordingly the object of the act. Now, the fact is, that no such additional machinery does the act provide or attempt to provide: not an atom of it. What it does, is—easing the hands of the criminals, of whatsoever check they felt applied by the consciousness of their so lately divulged criminality,—thus giving to them the undisturbed power of taxing the people for their own profit, without stint; and, for this purpose, rendering that power which had so long been arbitrary in fact, at length arbitrary by law.

Remains the clause about keeping the table of fees exposed to view. They are to be “kept hung up”—these table of fees—“hung up in a conspicuous part of the” room. Good: and while there hung up, what will be the effect of them? The same as of those hung up in virtue of those former statutes of George II., with the King’s Bench rule that followed them. The place they are hung up in, is to be a conspicuous one. Good: but the characters? of these nothing is said: so that here is a loop-hole ready made and provided.

In the above-mentioned case,* which produced the demand for this act, a document, referred to as a ground of the decision, is—a rule of court, of Michaelmas term, 3 Geo. II.† and “the table of fees settled in the following year.” In article 8th of the document intituled “Rules and Orders,” &c. mentioned in that same rule of court, which, without any title, is in Latin, in speaking of the table of fees, it is said, that it shall be “fairly written in a plain and legible hand.” With this clause lying before him—and he could not but have had it lying before him—with this clause lying before him it is, that the penner of this same act of Lord Eldon’s contents himself with speaking about the place, and says nothing about the hand.

What the omission had for its cause—whether design or accident—judge, whosoever is free to judge, from the whole complexion of the business. Not that even in this same rule of court, with its “fair and legible hand,” there was anything better than the semblance of honesty. Tables of benefactors to churches and parishes—tables of turnpike tolls—were they, even in those days, written in a fair and legible hand? No: they were painted in print hand, as they are still, in black and gold. But, if instead of fair and legible, the characters should come to be microscopic, and as illegible a scrawl as can be found—suppose in the grim-gribber hand called court hand—a precedent of this sort will not be among the authorities to be set at nought: this will not be among the cases in which, according to Lord Eldon’s consistency, as per page 356, “It would be more consistent to suppose some ground appeared to former judges, upon which it” (the act of parliament, or the rule of court, or both) “might be rendered consistent with the practice”—meaning, with the practice carried on in violation of them.

Lord Eldon’s Act, or The Eldon Act, should be the style and title of this act. Precedent, Lord Ellenborough’s Act,—so styled in a late vote paper of Honourable House:‡ Lord Ellenborough’s act, sole, but sufficient and characteristic, monument, of the legislative care, wisdom, and humanity of that Peer of Parliament, as well as Lord Chief Justice.∥

As to the Chancellor’s being the primum mobile of the act,—only for form’s sake, and to anticipate cavil, can proof in words be necessary. The bill being a money bill, it could not make its first appearance in the House in which Lord Eldon rules these matters by his own hand. The members, by whom it was brought into the only competent house, were the two law-officers: and that, by these two official persons, any such bill could, consistently either with usage or propriety, have been brought in otherwise than under the direction of the head of the law, will not be affirmed by any one. The Act, then, was LORD ELDON’S Act.

SECTION XIV.

HOW THE HEAD OF THE LAW, SEEING SWINDLING AT WORK, CONTINUED IT, AND TOOK HIS PROFIT OUT OF IT.

Swindling is an intelligible word: it is used here for shortness, and because familiar to everybody. Look closely, and see whether, on this occasion, it is in any the slightest degree misapplied.

By statute 30 Geo II. c. 24, § 1—“All persons who knowingly or designedly, by false pretence or pretences, shall obtain from any person or persons, money . . . . with intent to cheat or defraud any person or persons of the same . . . . shall be fined or imprisoned, or . . . . be put in the pillory, or publicly whipped, or transported . . . . for . . . . seven years.”*

1. “All persons,” says the act. If, then, a Master in Chancery, so comporting himself as above, is not a person, he is not a swindler: if he is a person, he is.

2. And so, in the case of a commissioner of bankrupts, if any one there be who has so comported himself.

3. So likewise in the case of any other functionary, holding an office under Lord Eldon.

4. So likewise in the case of every barrister, practising in any of the courts in or over which Lord Eldon is judge; in the case of every such barrister, if so comporting himself.

5. Add, every solicitor.

If, however, it is true, as indicated in the samples given in § 2, that in the case of the solicitor, in respect of what he does in this way, he is, by the subordinate judge (the aforesaid Master) not only to a great extent allowed, but at the same time to a certain extent compelled,—here, in his case, is no inconsiderable alleviation: in the guilt of the official, that of the non-official malefactors is eclipsed, and in a manner swallowed up and drowned.

So far as regards Masters in Chancery: to judge whether, among those same subordinate judges under Lord Eldon, there be any such person as a swindler, and if so, what number of such persons, see the sample given in § 2.

Same question as to commissioners of bankrupts, concerning whom, except as follows, it has not as yet been my fortune to meet with any indications. Lists of these commissioners, 14: in each list, 5: all creatures, all removable creatures—accordingly, all so many virtual pensioners during pleasure—of Lord Eldon. Further subject of inquiry, whether these groups likewise be, or be not, so many gangs of his learned swindlers.

Indication from the Morning Chronicle, Friday, April 15, 1825.

At a common council, Thursday, April 14, information given by Mr. Favel. Appointment made by list 2d of these commissioners, for proof of debts in a certain case: hour appointed, that from 12 to 1; commissioners named in the instrument of appointment, Messrs. Glynn, Whitmore, and Mr. M. P. Horace Twiss. Attendance by Mr. Glynn, none: by Mr. Whitmore, as little: consequence, nothing done: by Mr. Horace Twiss, an hour and a half after the commencement of the appointed time, half an hour after the termination of it, a call made at the place. Had he even been in attendance from the commencement of the time, instead of stepping in half an hour after the termination of it, still, commissioners more than one not being present, no business could (it seems) have been done. To what purpose, then, came he when he did, unless it was to make a title to the attendance-fee? Moreover, for this non-attendance of theirs, Messrs. Glynn and Whitmore, have they received their attendance-fees? If so, let them prove, if they can, that they are not swindlers. Mr. Horace Twiss, who does not attend any part of the time, but steps in half an hour after, when his coming cannot answer the purpose, has he received for that day any attendance-fee? If so, then comes the same task for him to perform. Mr. Favel’s candour supposes some excuse may be made for Mr. Twiss: if so, a very lame one it will be. An option he should have had to make is, to do his duty as a commissioner of bankrupts, and not be a member of parliament, or do his duty as a member of parliament (oh, ridiculous!) and not be a commissioner of bankrupts:—a commissioner of bankrupts, and, as such, one of Lord Eldon’s pensioners. Convinced by his commissionership of the immaculateness of his patron, commissioner makes a speech for patron, much, no doubt, to the satisfaction of both. Should a committee be appointed to inquire into Chancery practice—there, Mr. Peel, there—in Mr. Twiss, you have a chairman for it.

Meantime, suppose, for argument’s sake, Mr. Twiss comporting himself in any such manner as to give just cause of complaint against him—be the case ever so serious—to what person, who had any command over his temper, would it appear worth while to make any such complaint? To judge whether it would, let him put the question to Mr. Lowe, as per § 10.

These men—or some (and which?) of them—being so many swindlers,—he who, knowing them to be so, protects them in such their practices, and shares with them—with all of them—in their profits, what is he? Is not he too either a swindler, or, if distinguishable, something still worse? If, with strict grammatical or legal propriety, he cannot be denominated a receiver of stolen goods,—still, the relation borne by him to these swindlers, is it not exactly that which the receiver of stolen goods bears to the thief? Masters in Chancery, 10; Commissioners of Bankrupts, 90; together, 100; and, upon the booty made by every one of them, if any, who is a swindler, does this receiver of a portion of their respective gains make his profit: these same swindlers, every one of them, made by him what they are—Stop! Between the two sorts of receivers,—the thief-breeding and the swindler-breeding receivers,—one difference, it is true, there is. The thief-breeder, though, in so far as in his power, he gives concealment to his confederates, he does not, because he cannot, give them impunity:—whereas the swindler-breeding receiver, seeing that he can, gives both.

Masters in Chancery—creatures of this same creator, almost all, if not all of them—is there so much as one of them who is not a swindler—an habitual swindler? Say no, if you can, Lord Eldon! Say no, if you can, Mr. Secretary Peel! Deny, if you can, that your Mentor is in partnership with all these swindlers. Deny it, if you can, that, out of those who have accepted from him the appointment of reporting him blameless, two are of the number of these same swindlers.

“Oh, but,” by one of his hundred mouthpieces, cries Lord Eldon, “nothing has he ever known of all this: nothing, except in those instances in which his just displeasure at it has well been manifested. Whatever here be that is amiss, never has been wanting the desire to rectify it—the anxious desire . . . . But the task! think what a task! think too of the leisure, the quantity of leisure necessary! necessary, and to a man who knows not what it is to have leisure! Then the wisdom! the consummate wisdom! the recondite, the boundless learning! Alas! what more easy than for the malevolent and the foolish to besputter with their slaver the virtuous and the wise!”

Not know of it indeed? Oh hypocrisy! hypocrisy! The keeper of a house of ill-fame . . . . to support an indictment against him, is it necessary that everything done in his house should have been done in his actual presence? Ask any barrister, or rather ask any solicitor, whom retirement has saved from the chancellor’s prospect-destroying power—ask him, whether it be in the nature of the case, that of all the modes in which depredation has been practising in any of his courts, there should have been so much as one, that can ever have been a secret to him?

No time for it, indeed! Of the particular time and words, employed by him in talking backwards and forwards, in addition to the already so claborately-organized general mass, as if to make delay and pretences for it, a thousandth—a ten thousandth part—would have served an honest man anywhere for a reform: a reform which, how far soever from complete, would suffice for striking off two-thirds of the existing mass, and who can say how much more?

Have you any doubt of this, Mr. Peel?—accept, then, a few samples:—

1. Reform the first. (Directed to the proper person.) Order in these words: Charge for no more days than you attend. Number of words, eight. At the Master’s office, off go two-thirds of the whole delay, and with it, of the expense.

2. Reform the second. Text: On every attendance-day, attend ten hours. Paraphrase: Attend these ten, instead of the five, four, or three, on which you attend now. For your emolument, with the vast power attached to it, give the attendance which so many thousand other official persons would rejoice to give for a twentieth part of it.

3. A third reform. In the year there are 12 months: serve in every one of them. Months excepted for vacation, those in which no wrong that requires redress is practised anywhere.

4. A fourth reform. You are one person: and clerk of your’s, another. The business of any clerk of your’s is to serve with you, not for you. Serving by another is not serving, but swindling.

Small as is the number of words in the above proposed orders, anybody may see how many more of them there are than are strictly needful to the purpose of directing what it is desired shall be done.

Numerous are the reforms that might be added: all of them thus simple; many of them still more concisely expressible.

Oh, but the learning necessary! the recondite lore! fruit of mother Blackstone’s twice twenty years’ lucubrations! Learning indeed! Of all the reforms that have been seen, is there a single one that would require more learning than is possessed by his lordship’s housekeeper, if he has one, or any one of his housemaids?

Wisdom necessary for anything of all this? Oh hypocrites! nothing but the most common of all common honesty.

Of those, whom, because unsuccessful poor and powerless, men are in the habit of calling swindlers, the seat—that of many of them at least—is in the hulks: of those hereby supposed swindlers, whom, because rich and powerful, no man till now has ever called swindlers—the seat—the seat of ten of them at least—is in the House of Lords. As between the one class and the other, would you know in which, when the principle of legitimacy has given way to the greatest-happiness principle, public indignation will press with severest weight? Set them against one another in the balance.

1. Quantity of mischief produced—is that among the articles to be put into the scale?

Nothing, in comparison, the mischief of the second order: nothing the alarm produced by the offence of him whose seat is in the hulks. Against all such offences, each man bears what, in his own estimation, is little less than an adequate security—his own prudence: a circumstance by which the swindler is distinguished, to his advantage, from the thief. No man can, for a moment, so much as fancy himself secure against the hand of the swindler, if any such there be, whose seat is in the House of Lords. United in that irresistible hand, are the powers of fraud and force. Force is the power applied to the victim; fraud, the power applied to the mind of the public; applied as, with but too much success, it has been hitherto, to the purpose of engaging it to look on unmoved, while depredation, in one of its most shameless shapes, is exercised under the name of justice.

2. Unpremeditatedness—is it not in possession of being regarded as operating in extenuation of moral guilt? Deliberateness, as an aggravation? Deliberateness, does it not, in case of homicide, make to the offender the difference between death and life, under the laws of blood so dear to honourable gentlemen noble lords and learned judges? Of those swindlers, whose seat is in the hulks, how many may there not be, whose delinquency may have been the result of a hasty thought begotten by the craving of the moment? Answer and then say—of the swindler, if any such there be, whose seat is in the House of Lords, the offence, is it not the deliberate, the regularly repeated, the daily repeated, the authentically recorded practice?

3. Quantity of profit made—is that among the circumstances that influence the magnitude of the crime? For every penny made by the swindler whose seat is in the hulks, the swindler, if any, whose seat is in the House of Lords, makes 6s. 8d.: six-and-eight-pence? aye, six-and-eight-pences in multitudes.

4. Indigence—is it not in possession of being regarded as operating in extenuation of moral guilt? All have it of those whose seat is in the hulks. No such extenuation, but on the contrary, the opposite aggravation have they, if any, whose seat is in the House of Lords.

5. Uneducatedness—is it not in possession of being regarded as operating in extenuation of moral guilt? Goodness of education, or, at least, the means of it, as an aggravation? The extenuation, you have in the case of those whose seat is in the hulks: the aggravation, in the case of those, if any, whose seat is in the House of Lords.

6. Multitude of the offenders—does that obliterate the crime? Go then to the hulks and fetch the swindlers who serve there, to sit with their fellows, if such there be, who serve in the House of Lords.

7. Long continuance of the practice—is it in the nature of that circumstance to obliterate the crime? Much longer have there been swindlers out of the Master’s office than there can have been in it, The earliest on record are those who “spoiled the Egyptians:” but with them it was all pure fraud: no force was added to it.

Learning—appropriate learning—of demand for this endowment, assuredly there is no want: and not only for this, which every lawyer speaks of, but for original and originating genius—an endowment which no lawyer ever speaks of. Adding to the mass in the Augean stable, every ox had wisdom enough for—every ox that ever was put into it: to employ a river in the cleansing of it, required, not the muscle, but the genius of a Hercules.

Wisdom? Yes, indeed: but of what sort? Not that which is identical with, but that which is opposite to, Lord Eldon’s. Years spent in the pursuit of those which we have seen to be the actual ends of judicature, four-and-twenty. True: but by every year thus spent, a man will have been rendered, not the more, but so much the less apt, for pursuing the ends of justice. Lord Eldon serve the ends of justice? He knows not even what they are. Ask him what they are—at the end of half an hour employed in talking backwards and forwards, he will conclude with his speech in ex-parte Leicester, and the passage that has been seen in it. Ask what are the ends of justice? Thirty paces are more than I need go, to see boys in number, any one of whom, when the question had found him mute, or worse than mute, could answer and take his place.

Yes: in that man, in whom the will has been vitiated as his has been, the understanding—sure as death—has been vitiated along with it. Should a pericramum such as his ever meet the hand or eye of a Gall or a Spurzheim, they will find the organ of justice obliterated, and the organ of chicane,—a process from their organ of theft grown up in the place of it.*

If I misrecollect not, this section has been referred to for something to be said, as to the profit capable of being derived from the source here spoken of: if so, the reader’s indulgence must be trusted to for a respite, till the entire of the judges’-salary-raising measure has been found ripe for a view to be taken of it.

SECTION XV.

HOW KING GEORGE’S JUDGE’S IMPROVED UPON THE PRECEDENT SET BY KING CHARLES’S IN THE CASE OF SHIP-MONEY. See above, § 9.

The improvement was an altogether simple one. The pocket, which received the produce of the tax imposed by King Charles’s judges, was the King’s. The pocket, which received and receives the produce of the tax imposed by King George’s judges, was and is their own.

Now for consistency—now for the use of this same principle as a precedent: a precedent set, and with this improvement, in the seats and sources of what is called justice, and thence offered to the adoption of the other departments. But what applies to this purpose will be better understood when the consummation given to the system by the pending measure comes to be brought to view.

What they did, they contented themselves with doing, as it were, by the side of parliament: giving, indeed, their sanction to the operations of an authority acting without parliament,—but not, of their own authority, taking upon themselves to obstruct and frustrate the operations of parliament. Never did they levy war against the authority of parliament: never did they make known by express terms, that whatever parliament had ordained should, as they pleased, go for anything or for nothing: never did they adjourn obedience sine die: never did they say—“A practice having prevailed . . . contrary to an act of parliament . . . it would be better to correct it in future, not in that particular instance.”†

SECTION XVI.

HOW TO BE CONSISTENT, AND COMPLETE THE APPLICATION OF THE SELF-SERVING PRINCIPLE.

Now as to consistency.—You, Lord Eldon, you who practise consistency,—you, Mr. Peel, you who admire it,—go on as you have begun. Assisted by your official instruments, you have planted in the statute-book, after having established it in practice, the self-serving, the self-corrupting, the self-gorging principle. You have rooted it in one department: plant offsets from it in the others. You have covered with it the field of justice: go on with it, and cover with it the field of force.

Repair, in the first place, the ravage so lately made by the fabled dry-rot; that dry-rot which, not content with timber, rotted the china and the glasses. Give to the Duke of York the power of settling the pay of his subordinates, and levying, by his own order, the amount of it. . . . What! do you hesitate? Not to speak of loyalty, all pretence, then, to consistency is at an end with you. Dignity is, in your creed, the one thing needful: your judges are brimful of it, at least if it be in the power of gold to make them so. So far, “everything is as it should be.” But the commander-in-chief—not to speak of the heir to the crown—has he not, in his situation, demand enough for plenitude of dignity? And forasmuch as, in your mathematics, Mr. Robinson—applied to administration of justice, aptitude is as dignity,* —say, if you can, how the same proposition should fail when applied to the still more dignified function of wielding military force?

Apply it next to the navy. For the benefit of Lord Melville and his Croker, give legality to ship-money, as, for the benefit of Lord Eldon and his Abbott, you have given it to extortion and denial of justice. Legalizing that mode of supply, now in the 19th century, you will add to it the improvements you have found for it in your own genius and your own age. You will not, as did the creatures of Charles I. make the faux pas of putting the produce into the King’s pocket. No; you will remember what that experiment cost his Majesty’s predecessor. You will, if you can get leave of envy,—you will put it into the pockets of Lord Melville, Mr. Croker, and their friends; and thus, in the navy department likewise, “will everything be as it should be.”

Rhetoric and fallacy all this (says somebody.) Fallacy? Not it, indeed: nothing but the plainest common sense. Suffer not yourself to be blinded by one of those fallacies which timidity and self-distrust are so ready to oppose to indisputable truth. Say not to yourself, all this is strong, therefore none of it is true.

What I do not say is, that, in the two supposed cases, the mischief of the application is as great as in the real one.

What I do say is, that the principle would not be different. The principle different? no: nor the course taken more palpably indefensible.

SECTION XVII.

HOW LORD ELDON PLANNED AND ESTABLISHED, BY ACT OF PARLIAMENT, A JOINT-STOCK COMPANY, COMPOSED OF THE WESTMINSTERHALL CHIEFS, AND DISHONEST MEN OF ALL CLASSES.

In general, joint-stock companies are no favourites with Lord Eldon; but general rules have their exceptions.

That between dishonest men of all classes, and judges taking payment to themselves out of a fund common to both, the strictest community of interest has place, has been proved, if anything was ever proved, over and over. A tax, into what pocket soever the money goes, cannot be imposed on judicial pursuit, but to all who cannot advance the money, justice is denied, and all those who fail to do what has thus been rendered impossible to them, are delivered over to injury in all shapes, at the hands of all persons who are dishonest enough to take advantage of the licence so held out. A tax, into what pocket soever the money goes, cannot be imposed on the necessary means of judicial defence, but it offers, to all who can advance the money, and are dishonest enough to accept the offer, an instrument, wherewith, by the power of the judges, yet without their appearing to know anything of the use thus made of it, injury, in almost every imaginable shape, may be inflicted,—inflicted with certainty and impunity, and the correspondent sinister profit reaped, at the charge of all those who are not able to purchase the use of that same instrument for their defence. Thus, in so far as the produce of the exaction goes into the judge’s pocket, the interest of the dishonest man cannot, in either of those his situations, as above, be served, but the interest of the judge is served along with it.

Of a partnership contract, whatever else be among its objects, one object as well as effect, is the establishing a community of interest between the several members: and, if the persons acting so described are not dishonest; and if, between them and the judge in question, a community of interest is not formed; let any one say, who thinks he can, in what more indisputable way it is in the power of man to be dishonest; and whether, between such a set of men and a set of dishonest judges, it would be possible for community of sinister interest to be formed.

Not less difficult will it be found to say, how any man, judge or not judge, can fail to be dishonest, who, receiving money in proportion, consents, and with his eyes open, to the habitual promotion and production of injury in all imaginable shapes, in both or either of the situations described as above.

True it is that, in general, joint-stock companies, any at least that can be named on the same day with this for magnitude, have not been formed without a charter: and that, on the occasion here in question, no charter has been employed. Not less true is it, that in the establishment of other joint-stock companies, the power of parliament has been employed; and that, in the establishment of the joint-stock company in question, that hand, so superior to all morality, has, in the manner shown in § 13, most diligently and effectually been employed. In the concession of a charter, the hand of the Chancellor is regularly employed: and, in the passing of the acts of parliament in question, it has been shown, how that same learned hand has not been less primarily and effectually employed.

Such being the partnership, now as to the terms of it. A species of partnership as well known as any other is,—A. finds money; B. skill and labour. Of the partnership here in question, such are the terms.

Head of the firm, beyond all dispute, Lord Eldon. Found by him, in by far the greatest abundance, skill, labour, power, and example. Looked for by him, and received accordingly, profit in correspondent abundance. Behold, then, the firm of Eldon and Co. By what other name can the firm, with any tolerable degree of propriety, be denominated?

Apprised of the existence of this partnership, Judge and Co. is the denomination by which, for I forget what length of time—some thirty or forty years probably—in print as well as in conversation, I have been in the habit of designating it: not a pen, not a voice, having ever raised itself to controvert this undeniable truth. But though established by intrinsic power—by that power which is so much in the habit of setting at nought that of parliament—never, till Lord Eldon stood up, and with so much ease carried the matter through as above, was this Coryphæus of joint-stock companies established by an express act of parliament.

One all-embracing and undeniable truth, when the public mind is sufficiently familiarized with it, will remove doubts and difficulties in abundance; it will serve as a key to everything that, in this country, has ever been done in the field of judicial procedure. From the Norman conquest down to the present time, diametrically opposite to the ends of justice have been the actual ends of judicature: judicial establishment and judicial procedure included, but more especially judicial procedure. Paid, as judges have been, by fee—paid by taxes, the produce of which has all along been liable to be augmented, and been augmented accordingly by themselves, at no time could the system have been in any better state. Suppose that, in those their situations, and that in the most barbarous times, judges would have for the end of action the happiness of suitors? As well might you suppose that it is for the happiness of negroes that planters have all along been flogging negroes; for the good of Hindoos that the Leadenhall-street proprietors have all along been squeezing and excoriating the sixty or a hundred millions of Hindoos.

SECTION XVIII.

HOW THE KING’S CHANCELLOR EXERCISED DISPENSING POWER.

To those who have read §§ 9 and 10, or § 9 alone, this can be no news. But of the nature and magnitude of the dispensing power thus assumed and exercised by Lord Eldon, conception may be helped by a few words more.

James the Second and his advisers operated openly and rashly. Prerogative in hand, they ran a tilt against parliament law. Lord Eldon was Lord Eldon. In a cause of no expectation, out of sight of all lay-gents,—out of sight of all men but his co-partners in the firm, of which he is the head,—he laid down the fundamental principle. When, under a so unexpected opposition, his good humour, habitual and pre-eminent as it is, forgot itself for a while,—not so his prudence. Taking instruction from the adversary, he made a full stop, nor, till the impediment ceased, could he be made to move a step, by all the importunity we have seen employed, in the endeavour to urge him on towards the consummation of his own schemes.

Still out of the sight of lay-gents, when, on the cessation of the interregnum, he remounted the throne, and, like Louis XVIII. reaped the benefit of whatever had been done for the consolidation of it by the usurper,—the obstructor, persevering, as we have seen him, being for the time dispirited by the rebuff received from Lord Erskine, under the tuition of the learned Jack-of-both-sides,—still, he imposed not any fresh tax, contenting himself with increasing—in the manner and to the extent, samples of which have been seen in § 2—the produce of those he found established. Nor was this the whole of his labour or of his success: for we have seen how (still out of sight of the lay-gents) at times and in ways altogether invisible to unlearned eyes (at what tables, and over what bottles, must be left to imagination) he had succeeded in completely impregnating his Westminster-hall creatures, and, in their several judicatories, giving complete establishment to his plan, as well in principle as in practice.

Then again, when another unexpectable mishap befel him, and the webs, which the united strength of so many learned spiders had, for such a length of time, been employed in weaving, were broken through and demolished altogether by the irruption of one poor hunted fly,—even this shock, severe as it could not but be, did not make him relinquish his high purpose. Bold, where boldness was requisite, pliant where pliancy, all the sacrifice it brought him to was—the accepting from parliament, and that too with improvement, the consummation of the ambitious and rapacious plan, at the commencement of which the nature of the case had obliged him to act, though with all prudent and practicable secresy, against parliament.

Thus much as to the mode—now as to effect: and the extent given to it. James the Second, with his dispensing power, placed a catholic priest in the Privy Council, and a catholic, or no less obsequious protestant fellow, in an Oxford college. John the Second gave the dispensing power, not only to himself but to all his underlings, covering thus, with a so much more profitable power, the whole field of judicature.

SECTION XIX.

CHARACTER EVIDENCE.

Against specific indications such as these, Honourable House and the Old Bailey receive a sort of evidence, which is neither quite so easily obtained, nor quite so efficient when obtained, in the Old Bailey as in Honourable House. It may be called, and, for aught I know, is called, character evidence. Quantity, in pretty exact proportion to that of the hope and fear, of which he, who is the subject of it, is the object. Quality, determined by the same causes. Colours, two—white and black.

But for my old friend, Mr. Butler, no such evidence as this would have been offered—no such section as this have been written. Nor yet, if in the laud heaped up by him upon Lord Eldon, he had contented himself with using his own hand. But the hand, to which he has assigned this task, is the hand of Romilly: that confidence-commanding and uncontradictable hand, which for this purpose, resurrection-man like, he has ravished from the tomb.

Having, in the course of between thirty and forty years’ intimacy, been in the habit of hearing sentiments of so widely different a tendency, on every occasion, delivered in relation to this same person,—silence, on an occasion such as the present, would have been so little distinguishable from assent, that I could not sit easy without defending myself against what might otherwise have appeared a contradiction, given to me by my departed and ever-lamented friend.

In relation to Lord Eldon, I have no doubt of Romilly’s having used language, which, at a distance of time, and for want of sufficient discrimination, might naturally and sincerely enough, by a not unwilling hand, have been improved into a sort of panegyric thus put into his mouth. But, by the simple omission of one part of it, the strictest truth may have the effect of falsehood.

With a transcript of the panegyric in question, or of any part of it, I will not swell these already too full pages. Suffice it to mention my sincere wish, that it may be compared with what here follows.

By my living friend,—my departed friend, I have reason to think, was never seen but in a mixed company: assured I well am, and by the declaration of my departed friend, that between them there was no intimacy. Between my departed friend and myself, confidence was mutual and entire.

Romilly was among the earliest, and, for a time, the only efficient one of my disciples.*

To Romilly, with that secresy which prudence dictated, my works, such as they are, were from first to last a text-book: the sort of light in which I was viewed by him, was, in Honourable House, in his own presence, on an ever-memorable occasion, attested by our common friend, Mr. Brougham.†

Not a reformatiuncle of his (as Hartley would have called it) did Romilly ever bring forward, that he had not first brought to me, and conned over with me. One of them—that in which Paley’s love of arbitrary power was laid open—was borrowed from my spiders, under whose covering they may still be found. The project so successfully opposed by Lord Eldon’s Sir William Grant—the endeavour to prevail upon honourable gentlemen to divest themselves of the power of swindling in their individual capacities,—was, to both of us, a favourite one. Nothing of this sort could ever come upon the carpet, but the character of Lord Eldon came of necessity along with it: a few lines will give the substance of volumes. The determinate opposer of everything good; the zealous, able, and indefatigable supporter of everything evil, from which, to the ruling one or the ruling few, reputed good, in any the smallest quantity, at the expense of the many, appeared derivable.

“Well! and what chance do you see of the evil genius’s suffering it to pass?” This, on one part was the constant question. “Why . . . . just now, things are so and so:” stating, or alluding to, some hold, which, at the moment, he thought he might have upon Lord Eldon. A favourable circumstance was—that, though regarding the M. P. with the eye with which he could not but regard one of the most troublesome of his political opponents,—the Chancellor—such, in his estimation, was the legal knowledge and judgment of Romilly—was in the habit of paying to the arguments of this advocate not less, but even more, deference, than, in the eyes of the profession, was always consistent with justice, so at least I have heard, over and over again, from various professional men. In Romilly’s acquirements and character he beheld a leaning-stock, the value of which he knew how to appreciate.

Now for the like, through channels less exposed to suspicion:—

“The state of the court of Chancery is such, that it is the disgrace of a civilized society.” These are the words furnished me, in writing, by a friend, as among the very words used by Romilly, but a few months before his death, in a mixed company. It was at a place which, for several days of his last autumn (a place I occupied in Devonshire,) afforded to the relator various free conversations, besides those at which I was present.—General result:—“Lord Eldon himself the cause of many of the abuses; of the greater part of the others, the remedy always in his own hands.”

“If there is a hell, the court of Chancery is hell.” Words these, given as the very words uttered by Lord Erskine but a few weeks before his death, in conversation with another person, from whom I have them under his own hand.

Both relators most extensively known, and not more known than trusted. On any adequate occasion, both papers should be visible.

Judex à non judicando, ut lucus à non luendo, the sort of service of all others for which Lord Eldon is not only most eminently but most notoriously unfit,* is the very service for the performance of which his unexampled power may have been originally placed, but if pretended, so falsely pretended, to be still kept in his hand.

This being premised, and admission made of the facility with which, for purposes such as have been brought to view, he can wrap his misery-breeding meaning up in clouds, such as, while transparent to accomplices and natural allies, shall be opaque to all destined victims,—I must, for shortness, refer my readers to Mr. Butler’s panygeric. Sending them to a work which has already had ten times as many readers as any of mine can look to have, I secure myself against the consciousness of injustice, and, I hope, from the reproach of it.

I will advance further in my approach to meet him.

On any of those nice points on which, expectation being equally strong and sincere on both sides, the difference between right and wrong being scarce discernible, decisions, were it not for appearances, might, with as little prejudice to the sense of security, be committed to lot as to reflection holding the scales of justice,—on any of these sources of doubt and display, which, in any tolerable system of legislature-made law, a line or two, or a word or two, would have dried up—Lord Eldon, at the expense of years, where another man would have taken days, has given to the amateurs of difficulty a degree of satisfaction beyond what any other man could have given to them: to them, satisfaction; to himself, reputation—instrument of power applicable to all purposes. This, by the having stocked his memory with a larger mass than perhaps any other man (Romilly possibly excepted) of the cases known to have sprung up within the field of equity,—and the having also enabled himself, with correspondent facility, to make application of them to the purpose of each moment, whatsoever be that purpose, whether it be to lead aright, to mislead, or to puzzle and put to a stand, himself or others.

So much for intellectuals: now for morals. Beyond all controversy,—recognised not less readily by adversaries than by dependents, one politico-judicial virtue his Lordship has, which, in his noble and learned bosom has swelled to so vast a magnitude, that, like Aaron’s serpent-rod, it shows as if it had swallowed up all the rest. In the public recognition of it, trembling complaint seeks an emollient for vengeance; decorous and just satire, a mask. After stabbing the Master of the Abuses through and through with facts, Mr. Vizard takes in hand the name of this virtue,—and, innuendo this is the only one that can be found, lays it like a piece of gold-beater’s skin on the wounds. That which beauty, according to Anacreon, is to woman,—courtesy, according to everybody, is to Lord Eldon: to armour of all sorts—offensive as well as defensive—a matchless and most advantageous substitute. With the exception of those, whom, while doubting, he is ruining, and, without knowing anything of the matter, plundering,—this it is that keeps everybody in good humour: everybody—from my lord duke, down to the barrister’s servant-clerk. Useful here, useful there, useful everywhere,—of all places, it is in the cabinet that it does knight’s service. It is the court sticking-plaster, which, even when it fails to heal, keeps covered all solutions of continuity: it is the grand imperial cement, which keeps political corruption from dissolving in its own filth. Never (said somebody once) never do I think of Lord Eldon or Lord Sidmouth, but I think of the aphorism of Helvetius—Celui qui n’a ni honneur ni humeur est un courtezan parfait.

When this virtue of the noble and learned lord’s has received its homage, the rest may be most effectually and instructively made known by their fruits. These fruits will be his res gestæ: exploits—performed throughout, or in the course of, his four-and-twenty years’ dominion over the fields of judicature and legislation. Enterprises consummated—enterprises in progress—measures not originating with him, but taken up by him and improved—exploits performed by his own hands, exploits performed by the hands of his creatures, or other instruments;—under one or more of these heads, were any such exactness worth the space and trouble, would some of these exploits be to be entered,—under another or others, others. But, forasmuch as all judicial censure is altogether out of the question, and the space and research necessary for such distinctions altogether unaffordable, they must unavoidably be omitted. Under each head, it will be for the reader, from what he has seen or heard, or may choose to see or hear, to consider whether, and, if yes, how far, the imputation attaches. To improve upon these hastily collected hints, and complete the investigation, would, if performed by a competent hand, assuredly be a most interesting, as well as useful work.

1. Nipping in the bud the spread of improvement over the habitable globe, ruining fortunes by wholesale, and involving in alarm and insecurity a vast proportion of the vast capital of the country, by wantonly-scattered doubts, leaving the settlement of them to a future contingent time that may never come.*

2. Rendering all literary property dependent upon his own inscrutable and uncontroulable will and pleasure.

3. Establishing a censorship over the press, under himself, with his absolute and inscrutable will, as censor: inviting, after publication with its expense has been completed, applications to himself for prohibition, with profit to himself in these, as in all other instances.

4. Leaving the line of distinction between cases for open and cases for secret judicature, for so long as there is any, at all times dependent on his own inscrutable and uncontrovertible will and pleasure, establishing and continually extending the practice of covering his own proceeding with the cloak of secresy.

5. Rivetting, on the neck of the people, the continually pinching yoke of an aristocratical magistracy, by rendering all relief at the hands of the chancellor as hopeless, as, by artificial law expenses, and participation in sinister interest and prejudice, it has been rendered at the hands of the judge.

6. On pretence of heterodoxy, by ex post facto law, made by a single judge for the purpose,—divesting parents of the guardianship of their own children.

7. Injecting into men’s minds the poison of insincerity and hypocrisy, by attaching to pretended misdeeds, sufferings, from which, by an unpunishable and unprovable, though solemn act of insincerity, the supposed misdoer may, in every case, with certainty exempt himself.†

8. In all manner of shapes, planting or fixing humiliation and anxiety in the breasts of all who, on points confessedly too obscure for knowledge, oppose him, or refuse to join with him, in the profession of opinions, in relation to which there is no better evidence of their being really his, than the money and power he has obtained by the profession of them.

9. Pretending to establish useful truth by the only means by which success to pernicious falsehood can ever be secured. Proclaiming, in the most impressive manner, the falsehood and mischievousness of everything that is called religion,—by punishing, or threatening to punish, whatsoever is said in the way of controverting the truth or usefulness of it.

10. Bearding parliament, by openly declaring its incapacity to render unpunishable anything to which the judges, with the words common law in their mouths, shall have been pleased to attach punishment, or take upon them to punish:—thus, by the assumed authority of himself, and those his creatures, keeping men under the rod of punishment, for habits of action, which, in consideration of their innoxiousness, had by parliament been recently exempted from it: as if parliament had not exempted men from declared and limited, but for the purpose of subjecting them to unconjecturable and unlimited punishment. Witness the Unitarians, and all others, who will not, at his command thus signified, defile themselves with insincerity, to purchase the common rights of subjects.

11. Doing that which even parliament would not dare to do: and because parliament would not dare to do it, doing it with no other warrant than this or that one of a multitude of words and phrases, to which one import as well as another may be assigned at pleasure: witness libel, blasphemy, malice, contra bonos mores, conspiracy, Christianity is part and parcel of the law of the land: converting thus at pleasure into crimes, any the most perfectly innoxious acts, and even meritorious ones: substituting thus, to legislative definition and prohibition, an act of ex post facto punishment, which the most consummate legal knowledge would not have enabled a man to avoid, and as to which, in many an instance perhaps, it was not intended that it should be avoided.*

All this—which, under a really-existing constitution, grounded on the greatest-happiness principle, would furnish matter for impeachment upon impeachment—furnishes, under the imaginary “matchless” one, matter of triumph, claim to reward, and reward accordingly.

12. Poisoning the fountain of history, by punishing what is said of a departed public character on the disapproving side—while, for evidence and argument on the approving side, an inexhaustible fund of reward is left open to every eye: thus, by suppression, doubling the effect of subornation, of evidence. This by the hand of one of his creatures: his own hand, without the aid of that other, not reaching quite far enough.

The title Master of the Abuses, which occurs in p. 372, may perhaps have been thought to require explanation. It was suggested by that of Master of the Revels, coupled with the idea of the enjoyments in which he and his have for so many years been seen revelling by the exercise given to the functions of it.

The Mastership of the Revels being abolished, or in disuse—the Mastership of the Abuses appears to have been silently substituted: and Lord Eldon presents himself as having been performing the functions of the office, as yet without a salary: with his Masters in Chancery, serving under him in the corresponding capacity, and on the same generous footing, on the principle of the unpaid magistracy. A subject for calculation might be—at what anno domini the business of all the denominated offices, possessed by those Masters and their Grand Master respectively, will have been brought into the state, into which, under his lordship’s management, that of the Six-clerks has already been brought, together with that of the six offices, with which the future services of his honourable son have been so nobly and generously remunerated?—at what halcyon period these offices will, with the rest, have been sublimated into sinecures, and the incumbents apotheosed into so many Dii majorum or Dii minorum gentium of the Epicurean heaven?

To help conception, a short parallel between the noble and learned Lord, and his noble and learned predecessor Jefferies, may be not altogether without its use. General Jefferies had his one “campaign:” General Eldon as many as his command lasted years.—The deaths of Jefferies’s killed-off were speedy: of Eldon’s, lingering as his own resolves. The deaths of Lord Jefferies’s victims were public—the sufferers supported and comforted in their affliction by the sympathy of surrounding thousands: Lord Eldon’s expired, unseen, in the gloom of that solitude, which wealth on its departure leaves behind it. Jefferies, whatsoever he may have gained in the shape of royal favour—source of future contingent wealth—does not present himself to us clothed in the spoils of any of his slain. No man, no woman, no child, did Eldon ever kill, whose death had not, in the course of it, in some way or other, put money into his pocket. In the language, visage, and deportment of Jefferies, the suffering of his victims produced a savage exultation: in Eldon’s, never any interruption did they produce to the most amiable good-humour, throwing its grace over the most accomplished indifference. Jefferies was a tiger: Eldon, in the midst of all his tears, like Niobe, a stone.

Prophet at once and painter, another predecessor of Lord Eldon—Lord Bacon—has drawn his emblem. “Behold the man,” says he, “who, to roast an egg for himself, is ready to set another’s house on fire!” So far so good: but, to complete the likeness, he should have added—after having first gutted it. One other emblem—one other prophecy:—is it not written in the Arabian Nights’ Entertainments?—Sinbad the Sailor, Britannia: Old Man of the Sea, the Learned Slaughterer of Pheasants, whose prompt deaths are objects of envy to his suitors. After fretting and pummelling, with no better effect than sharpening the gripe—the Arabian slave, by one desperate effort, shook off his tormenting master. The entire prophecy will have been accomplished, and the prayers of Britannia heard, should so happy an issue, out of the severest of all her afflictions, be, in her instance, brought to pass.

POSTSCRIPT.

§ 1.

Under Lord Eldon, Equity an Instrument of Fraud and Extortion.—Samples continued.

While writing what is above, came to hand a “Review of Chancery Delays,” &c.: signature, “The Authors.” When what they say is seen, the reason for such their concealment will be sufficiently manifest. Read this work of theirs, whoever you are,—you who, thinking for the public, have any regard for justice: so rich the mass of abuse, it not merely denounces in general terms, but spreads out in detail, bringing it at the same time within the conception of non-lawyers: the matter ranged under some nine or ten heads, following one another in the chronological order of the proceedings in a suit.

“Proper subject of every honest man’s indignation,” according to them (p. 42,) not only “the system which allows,” but “the judges who encourage such conduct:” and, with a little attention, every solicitor who has had twenty-five years’ practice, and a few over, in the equity courts, as well as many a man who has had none, will be able to draw the line, and to say to himself, whether, by any former judge, anything like so much encouragement has been given to the sort of conduct therein held up to view. Ask, with so many learned gentlemen, whether it be to Lord Eldon, or to the system, that the phenomena are due? Ask first, whether it is to the father or to the mother that the birth of a child is due?

From this most instructive publication, take a few hastily-picked-up samples. Pages 48, 49:—1. Master’s attendance (as everybody knows) never more than one hour in one day in the same cause.

2. Between attendance and attendance, distance commonly three or four days—frequently a week.

3. For every such actual attendance, payment for that and two others exacted by the Master, he declaring in writing that on both days he has attended; whereas on neither day has he, or anybody for him, attended.

4. For each such falsely alleged, and unjustly charged attendance, fees exacted by the Master, not only for himself, but for every solicitor employed in the suit, a separate one; there being in every equity suit parties in any number, having, as many as please, each of them a separate solicitor.

5. Hours of such attendance in a day seldom more than five (other accounts generally make it less.) Per Mr. Vizard—(see above, § 2, p. 350,) with “some exceptions” only, not more than three.

6. Months in which such attendances are to be had, out of the twelve, not more than seven.

Page 52. Recapitulation of the means of delay employable in ordinary, over and above the additions employable in extraordinary cases: to wit, employable by dishonestly-disposed men on the two sides of the suit respectively, thus enabled and invited by Lord Eldon, with or without predecessors for stalking-horses, to carry that same disposition into effect.

I. By dishonesty on the defendant’s side; to which side, in a common law-suit, dishonesty is of course most apt to have place:—

II. By dishonesty on the plaintiff’s side; that is to say, on the part of him who, at common law, had been on the defendant’s side; one half of the business of equity consisting in stopping or frustrating the application of the remedy held out by common law; and at any stage, down to the very last, this stoppage may be effected.

N. B. This combination of two sorts of judicatories, proceeding on mutually contradictory principles, is by Lord Eldon, and by so many others, professed to be regarded as necessary to justice.

Note that (as has been often stated, and never denied,) delay on the plaintiff’s side, as here, has been in use to be employed as a regular and sure source of profit by dishonest men with other men’s money in their pockets, where the quantity of it in the shape of capital has been deemed sufficient, by means of the interest or profit on it, to pay for the delay sold by the judges of the common law and equity courts together: they, with their creatures and other dependents in office, and their friends and connexions in all branches of the profession, sharing, by means of the fees, with these dishonest men, in the profit of their dishonesty.

Comes in, at the same time, “Letter to Mr. Secretary Peel on Chancery Delays, by a Member of Gray’s Inn.” Pages, 25.

1. Page 20. Subject-matter of the most common and seldomest-contested species of suit—account of a testator’s estate:—

1. Number of useless copies taken of said account, ten.

N. B. Cost of each, ten-pence for every ninety words.

2. Pages 15, 16, 17. Under Lord Eldon, irrelevance, technically styled “impertinence,” thence useless lengths of pleadings perpetually increasing—“laxity of pleadings, quantity of impertinent matter—a subject-matter of general complaint and general observation by Lord Eldon.” Punishment being all this while unexampled; encouragement in the shape of reproof in the air, or threats, of which it is known they will never be executed, are at the same time frequent. Before Lord Eldon, the practice was, to saddle the counsel with costs. Per the authors, as above (p. 350,) by “late decisions this abuse has received positive encouragement and increase.”

Pages of all five pamphlets, taken together (Mr. Vizard’s included,) 157. Compressed into perhaps a third of the number, the substance would compose a most instructive work. By detaching from the abuses the proposed remedies, the compression might perhaps be aided: the remedies, in a narrow side column, or at bottom, in form of notes.

But neither should the defences, whatever they are, pass unexamined: for of the charges, with such premiums for defence, whatsoever is passed over unnoticed or slurred over, may, with unexceptionable propriety, be regarded as admitted.

§ 2.

Lord Eldon Squeaking.

Drama (not to say farce,) “The Courts of Law Bill.” Time, June 28, 1825. Editor, Globe and Traveller. Scene, Right Honourable House. Enter Lord Liverpool, Prime Minister, bill in hand. Lord Eldon, Chancellor, in the back ground. Motion by Lord Liverpool for proceeding in the bill. Enter Lord Grosvenor with a digression—a dissertation on sinecures: Lord Liverpool, in answer:—determined to save fees from commutation during the incumbency of the present incumbents; determined to save the head fee-eater from all hardships imposed on inferior ones: determined to give the puisne judges the proposed £5500 a-year, because there were others, who, for doing less, were paid more. Mr. Robinson having previously (to wit, in Honourable House) demonstrated the necessity of the increase, appropriate aptitude being, in his mathematics, as dignity, and dignity as opulence: the proof being composed of repetitions, ten in number (for they have been counted,) of the word dignity.

Whereupon, up rises Lord Eldon, finger in eye, answering Lord Grosvenor’s digression, with a digression on calunmy and firmness. Addresses, two: one to the people, the other to noble lords. For better intelligibility, behold these same addresses, in the first place, in plain English: after that, for security against misrepresentation, in Lord Eldonish.

1. Lord Eldon to the people, in plain English.—Have done! have done! Let me alone! Nay, but don’t teaze me so. You had best not; you won’t get anything by it. This is not the way to get me out, I can tell you that. Come now, if you will but let me alone, I’ll go out of my own accord. I should have been out long ago, had it not been for you. It’s only your teazing me so that keeps me in. If you keep on teaze, teaze, I’ll never go out: no, that I won’t.

Note that this was on the 28th of June 1825: ten days after the day on which, without authority or expectation on the part of the author, the editor of the Morning Chronicle, with whose stripes the noble and learned back is so well acquainted, had given an article on these indications.

The original in Lord Eldonish.* —“Perhaps it is thought that this mode of calumnious misrepresentation is the way to get me out of office. They are mistaken who think so: I will not yield to such aspersions; nor shrink from asserting what I owe to myself. Had I been treated with common justice, I should not, perhaps, have been Lord Chancellor this day; but, I repeat it, I will not be driven out of office by calumnious attack. Let me only be treated with common justice, and my place shall be at any man’s disposal.”

Calumnious indeed! Look back, cautious and justice-loving reader—look back at the indications: see what any of them want of being proofs: see whether anything but a formulary or two is wanting to render them proofs, and conclusive ones. Suppose, for argument’s sake, the defendant guilty, and see whether, on that supposition, anything more convincing than what is there brought to view, could have been adduced. Say whether, in case of mis-statement anywhere, there can be any ground for regarding it as wilful: any ground for attaching to it any such epithet as calumnious.

2. Lord Eldon to Lordships in plain Enlish.—Help! help! help! Going, going! Can’t stand it any longer. What! nobody lend me a hand?—nobody speak a word for me? Do not you see how it is with me? What! and will you turn against me? Better not: I can tell you that. You’ll be all the worse for it. When I am put down, it will be your turn next. What will become of your privileges?—think of that! I’ll tell you what, so sure as they take away my seals, so sure will they take away your privileges.

Squeaking, staggering, blustering, crying out for help—all in a breath! What an exhibition!

Original in Lord Eldonish.—“The feelings and fate of an individual are in themselves of small importance to the public, and I may be sacrificed to the insults I daily receive. But I beg noble lords to reflect, that I may not be the only sacrifice. If the object is, as it appears to be, to pull down the reputations, and throw discredit on the motives and conduct of men in high official situations,—if every man who occupies a high situation in the church” [turning of course to the bishops’ bench] “in the church or state, is to become the object of slander and calumny, then your lordships may lay your account with similar treatment, and be convinced that your privileges or power cannot long be respected, when such characters have been sacrificed.”

N. B. At what words the tears began to flow is not reported. When a crocodile comes on the stage—Tears, tears, should be added to the Hear! hears!

No, my weeping and fainting and firmness-acting lord. How purblind soever the eyes you are accustomed to see around you, blindness is not yet so near to entire, as to make lordships see no difference between your seals and their privileges. Their privileges! Who is it that is to take away these same privileges? The king? or the people? or the pope of Rome? Your seals! Yes, the king can take away these pretty playthings of yours, and not improbably will, so soon as in his estimation there will be more uneasiness from keeping them where they are, than from placing them elsewhere. But Lords’ privileges! they are a sort of a thing not quite so easily disposed of. To bring his hand in, his Majesty will first take away from himself his own prerogatives.

The people? Yes: supposing guards and garrisons were all annihilated in a day, the people, that is to say, a mob, might not find much more difficulty in dealing with these accoutrements of yours than the king would: after burning your bags, they might throw your seals into the Thames, where your predecessor, Littleton, threw his. Yes: all this a mob (for this is what you always have in view when you speak or think of the people) might indeed do. But could they either burn or throw into the Thames their Lordships privileges?

As to the Pope, I say nothing of him here: what regards him, belongs to Catholic Emancipation.

Seriously, it was found impossible, by anything but extravagance, to comment upon such extravagance. What must have been the state of that mind which could rely upon it as argument?

In this place, without aid either from witchcraft or from treachery, I had actually gone on and given the substance of the argument, with which, in cabinets and over bottles, the noble and learned lord has for these five-and-twenty years, and more, been occupying himself in the endeavour—no very difficult one, it must be confessed—to keep up, and if possible to increase, the aversion to improvement in so many shapes, and to reform in every shape. But relevancy seeming questionable, and mischief from overweight unquestionable, the papers have been put aside.

The Indications are before the reader: some original, others copied. In both cases, how determinate they are, he can scarcely have failed to remark. As well as the proofs, he shall now have before him the answers. From a clear conscience, accompanied by a clear and well-exercised conception, they would have been correspondently determinate. In generals, at any rate, and in particulars, according as time and occasion admitted, and importance required, every charge would have been noticed; and, lest omission should be taken for confession, no one left altogether without notice.

So much as to what the answers might have been, and, in the momentarily supposed case, would have been. Behold now what, in the actual case, they are.

First, as to the general heads of defence. They will be found composed of uncharacteristically-vituperative matter, applied at every turn to the accusations, and expressed in these terms:—

• 1. “Misrepresentation and calumnies.”
• 2. “Calumnious misrepresentation.”
• 3. “Such aspersions.”
• 4. “Calumnious attacks.”
• 5. “Mis-statements and misrepresentations of every kind.”
• 6. “Much misrepresentation.”
• 7. “Calumny and mis-statement.”
• 8. “Slander and calumny.”

What the noble and learned defendant’s perturbation did not permit him to perceive is, how strongly this sort of language smells of “the Old Bailey:” of the place he was looking to be “sent to by their Lordships,” (as per Globe, June 21, 1825,) there to be “put to death:” and that when a man can find nothing to say that shall tend to his exculpation, this sort of unmeaning outcry is what he vents his anguish in, rather than be seen to make confession in the shape of silence.

So much for generals. Follow now all the several specific attempts at defence, with an observation or two upon each.

Lord Eldon.—I. “From the accounts which have been furnished to me of my emoluments as Lord Chancellor from those who best know the amount.” [Lordship himself being nobly careless of all such things] “apart from my income as Speaker of the House of Lords, I am happy to say, that the Lord Chief-Justice of the King’s Bench has received a larger sum from his office: I speak from the average accounts of the last three years.”

Observations.—1. What is this to the purpose? Not of the quantum do we complain, but of the sources: of which sources he dares not say a syliable.

2. Whatever it be that you receive, is it the less because you receive it from a number of places instead of one?

3. Of the patronage, nothing said: whereas, from a small portion of it, you receive, in the person of your son, according to the undisputed calculation of Mr. Miller,* £3,500 a-year, and, unless in case of untimely death, will receive in the whole, £9000.

4. What is it to the purpose what the Chief-Justice has? If the emolument of the man in question is excessive, does the greater excess of another man’s make it less so?

5. Since he knows, then, what his emoluments are, why will he sit to be thus badgered, rather than produce them? Why, unless it be because they would be seen not to agree with the account thus given of them? and because he fears that, if honourable gentlemen knew the whole amount, they would grudge giving him full value for it?

Lord Eldon.—II. “And I will further say, that, in no one year since I have been made Chancellor, have I received the same amount of profit as I enjoyed while at the bar.”

Observations.—1. The same? No, most probably not; for, so long as there is a far-thing’s-worth of difference, this is strictly true. But how is anybody to know whether it is?

2. If everybody knows it, what would it be to the purpose?

3. While the Chancellor declares himself happy that the Chief-Justice’s profits out of other men’s misery are so great, may a suitor be permitted to confess himself not quite so happy, that Barrister’s profits, drawn by insincerity out of the same impure source, are, if so it really be, so enormous?

Lord Eldon.—III. “Had I remained at the bar, and kept the situation I held there, I solemnly declare I should not have been a shilling the poorer man than I am this moment, notwithstanding my office.”

Observations.—1. Believe who can: evidence, none. Disprobative counter-evidence, as to the official side of the account, obstinacy of concealment: evidence, circumstantial indeed, but not the less conclusive.

But, possibly, here as before, of his cluster of offices, with their emoluments, he shuts his eyes against all but one: and thus, by a virtual falsehood, thinks to keep clear of a literal one.

2. Again—what is all this to the purpose?

Oh! had he but kept to the bar—or, instead of the bench, been sent to that bar to which, as above, he so lately looked to be sent by their lordships on his way to another place—what a waste of human misery would have been saved! of human misery, for which who ever saw or heard him exhibiting any the slightest mark of regard? Men, women, and children—widows and orphans—being treated by him as if composed of insentient matter, like the stones from which the gold exacted from them was extracted.

Lord Eldon.—IV. “No charge of delay can fairly be brought against me.”

Observations.—1. Now well done, Lord Eldon! To a host of witnesses, continue to oppose a front of brass!

2. Not to speak of the mountains of manufactured delay opened to view by the samples, as if by a particular providence,—in opposition to this plea of not guilty, behold, prepared by anticipation, six months antecedently to the pleading of it, a special piece of criminative evidence: a statement, the manifestly trustworthy result of a course of observation, the commencement and continuance of which was a phenomenon not much less extraordinary than the course observed upon. It is here copied, word for word, from a morning paper.* Whence it came from, is unknown: neither to the whole, nor to any part of it whatsoever, has any contradiction been ever heard of.

3. Under the eyes of so vast a posse of retainers, retained by every tie of interest in the defence of this giver of good gifts,—is it in the nature of the case that anything to which the name of misrepresentation could have been applied with any chance of being regarded as properly applied, should in all this time have passed unnoticed?

“Court of Chancery.—(From a Suitor.)—Term ended on Monday: the Lord Chancellor, when he was rising, apprized the gentlemen of the bar and the suitors of the court, that he would not come down till Thursday. His lordship is no doubt entitled to two day’s recreation after his learned labours of a month. In order that the public may duly appreciate those labours, let us briefly review them:—the calculation may appear curious—the time which his lordship sat—the number of cases heard—not decided—and the quantum of relief afforded.

“His lordship commenced his sittings on the 1st November, and from that to the 29th, both inclusive, he sat in court 24 days. In no day but one, did he sit before ten o’clock; on one day only did he remain till three: indeed he could not during term, for, as he has often said, ‘the students should have their dinner.’

“His lordship, out of the 24 days, spent in court 79½ hours!!

“This statement is correct, if the court clerk can be depended on. On two of those short sitting days, his lordship had to attend in council to hear the Recorder’s report of the Old Bailey convicts; on another of them, he rose before twelve o’clock, in indignation that there was no business:—No business in Chancery! On some of the other short days, he was called on business elsewhere. But let us now see how this time was occupied.

“The case of the Rev. A. Fletcher is entitled to the first place in this enumeration. Indeed the flight of Paris with Helen was not destined to give more employment for the Grecian heroes, than the flight of Mr. Fletcher from his Caledonian lassie is to cut out for the gentlemen of the long robe: thus may we fairly exclaim,—Cedant arma toga! In the King’s Bench we had only a skirmish, from which the parties retired æquo Marte. The great fight was reserved for the arena of Chancery: for four days the contending parties fought, and four times did night, or preparations for the students’ dinner, put an end to the contest. On the fifth day,—after hearing from eight counsel nine speeches, the reply included,—his lordship decided that he would not become an officer of police for a Scotch synod, to pull the reverend preacher from the pulpit.*

“This case consumed 17 hours out of 79½. But is it decided? No—the contrary, for his lordship more than once intimated ‘that, if it were worth while by a longer term of suspension to bring the question before the court in a more regular form, his opinion might incline the other way.’ His intimations will not be lost on the synod; therefore, Mr. Fletcher, that you may not be pulled down by the skirts, you had better, like Mawworm, wear a spencer.

“Fourteen hours more were consumed, from day to day, in two cases which were new to the court. These were—petitions, from Latham and Abbots, bankrupts, praying that his lordship, by virtue of the enlarged jurisdiction conferred on him by the new bankrupt law, would grant them their certificate, which the required number of their creditors refused. His lordship, after many observations, referred one to be re-examined by the commissioners, and, to determine the fate of the other, he demanded more papers. The cases of these parties are therefore in statu quo, and we are again fated to listen to half-a-dozen long-winded orations.

“Next after these in point of duration, is to be placed the motion to commit the Glamorganshire canal proprietors, for violating his lordship’s injunction. After hearing eight counsel for ten hours on different days, his lordship decided that four of the defendants were not to be committed; but the liberty of fifth is adhuc sub judice. To balance the mildness of the judgment with a sort of trimming policy, vengeance was denounced against the refractory watchmen; therefore they had better look sharp. Discite justitiam moniti, et non temnere.

“We have now accounted for 41 hours out of the 79½. Of the rest, the old cases of Grey v. Grey, and of Garrick v. Lord Camden, in which no progress was made, took up 5 hours; 5 more were devoted to Hale v. Hale, to determine the sale of mother’s estates, to be commenced de novo; and 10 from day to day were given to the Attorney-General v. Heales; Sims v. Ridge; the matter of Bayles, and the matter of Blackburns; to Honey v. Honey, Wilcox v. Rhodes—appeals from the Vice-chancellor, in the latter of which his honour’s decree was pronounced to be ‘nonsense incapable of being executed.’ Not one of them is a jot advanced.

“Lunatics and the elopement of a ward, took up 2½ hours. The New Alliance company took up 3: and then 9 more were wasted in disputes between counsel and court about priority of motions.

“The opening of the eternal Opera House cases (of which there are now three) took up 3 hours, and the remaining 7 were consumed from time to time on bankrupts’ petitions, and miscellaneous orders.

“To recapitulate the whole, the business and time are balanced thus:—

Lord Eldon.—V. “It is a mistake to suppose, that because the drudgery of some offices is performed by deputies, they are therefore to be called sinecures.”

Observations.—1. Nebulous-gas—confusion-gas—evasion-gas, from the Eldon laboratory. Eldon junior’s six sinecures—four in possession; two more in reversion;—of course here in view. Never, where common honesty is an object of regard—unpunishable swindling, of indignation,—never will they be anywhere out of view.

2. Mark here the division. Business of official situation, drudgery and non-drudgery. Drudgery, doing the business of the office: non-drudgery, receiving and spending the emoluments of it; paying for the doing of the business (unless it be of a particular connexion) no more than a pittance, the smallest that any one can be found to take.

Note that, with few, if any exceptions, when from any one of these offices you have separated the drudgery, you have separated all the business from it. For, laying out of the case those which are judicial, such as the masterships and the commissionerships and the examinerships—the business of them amounts to little or nothing more than ordinary clerk-business, such as copying or making entries under heads: business not requiring a tenth part so much appropriate knowledge and judgment and active talent, as that of an exciseman does.

3. Note, that what his lordship here does, consists in putting a possible case, that those who are eager to lay hold of every supposition favourable to him and his system, may, without proof, set it down in their minds an actual case: an actual case, to a considerable extent exemplified; and in particular, in the instance of the rich cluster of sinecures, out of the profits of which, without troubling himself with the drudgery either of writing or thinking, his honourable son is acting the part of a fine gentleman; and, if rumour does not overflatter him, testifying filial gratitude by good dinners.

4. The possible case is this:—a situation in which one man and no more is placed, though the business of it is more than one man can adequately perform: the business being at the same time of such a nature, as to be capable of being divided into two branches: one, requiring extraordinary appropriate acquirements, the other requiring none beyond ordinary ones; for example, shopkeepers’ clerks’ acquirements. In this state of things, the extraordinary-talent-requiring part of the business is reserved by the principal official person for himself (his appropriate aptitude, considering the dignity of him of whose choice he is the object, being unquestionable:) the no-more-than-ordinary-talent-requiring part, (that, to wit, which is meant by the drudgery) being turned over, or rather turned down, by him to the deputy. Of the thus wisely and carefully made division and distribution, sole object, of course—the good of the service.

5. Now then—supposing an inquiry into this matter included in the inquiries of a House of Commons’ committee, is there so much as a single instance in which any such over-weight of business, together with any such division made, would be found exemplified? Whoever is a layer of wagers, might, without much danger, venture a considerable one to the contrary.

6. In the case of Eldon junior, what I would venture to lay for is—that, of his four places in possession, there is not one, the business of which requires so much appropriate knowledge, judgment, and active talent, as that of an exciseman does; and that there is not one for which he himself does any business other than signing his name, with or without the trouble of looking over the accounts of the deputies (if in name or effect there be any) to wit, for the purpose of ascertaining whether the principal receives the whole of what is his due. And so in regard to the reversions: the existence of which, by-the-bye, is a separate one, and that an abominable and altogether indefensible abuse.

7. True, my Lord. An office, in which for the public service, a something, an anything, is done—is not in strictness of speech a sinecure: though that something were no more than any charity-school boy is equal to; and although it took up but a minute in doing, once out of each of the seven months in a-year, during which your masters (your lordship’s son-in-law included) serve.

8. This being conceded to you, what are you the better for it?

Would you have the amount of the depredation exercised by the maintenance of an office allowed to be executed by deputy? I will give you a rule by which, in every case, you may obtain it. From the sum received by the principal, subtract that received by the deputy or deputies,—the difference is, all of it, depredation: of thus much you may be sure. Whether of this which the deputy or deputies receive, there be any and what part that belongs to that same account, is more than you can be sure of, otherwise than by applying to this case, that matchless criterion of due proportion as between reward and service, fair competition—competition, as in the case of goods sold, and,—under the name of work done,—service, in all shapes, sold to individuals: and, if good in those cases, what should render it otherwise in this?

9. Casting back an eye on the matter thus employed in effecting the explosion of the Eldon gas, I cannot but regret the quantity. If, by any instruction contained in it, the labour of looking into it be paid for, it will be by the applications capable of being made of this concluding rule.

Lord Eldon.—VI. “I will pledge myself to be as active as any noble lord in correcting abuses, but I will perform my duty with a due regard to the rights of others.”

Observations.—1. Pledge himself? Yes: but giving a pledge is one thing—redeeming it, another. In the whole five-and-twenty years, during which this has been swagging, like an incubus, on the breast of justice, in what instance has he ever meddled with abuse in any shape, unless it be by the endeavour to give perpetuity and increase to it?

Not that, as thus worded, this desire amounts to any great matter beyond what he might have credit given him for, and this without any very wide departure from the exact line of truth. Noble Lords,—if in a situation such as theirs it were possible for men to feel any such desire,—would not have far to look for the gratification of it. Your Majesty (said somebody once to a King of Spain who was complaining of ceremonies) is but a ceremony. Your Lordships (the same person might have said to their Lordships) are but an abuse.

As an argumentum ad hominem, nothing against this challenge can be said. But, the organs, for which it was designed, were the ears of noble lords, not the eyes of the public: to which, however, I hereby take the liberty of recommending it. Abuses are neither hares nor foxes. Noble lords are too well born, and under noble and learned lords too well bred, to take any great delight in hunting them.

Lord Eldon.—VII. “The reason why in the present bill there appeared no clause regulating offices in the court of Chancery is—that a commission is now sitting on the state of the court.”

Observations.—1. Now sitting? O yes, and for ever will be, if his lordship’s recommendation to the people is taken by the people, and the operation of teazing ceases or relaxes—Sedet, æternùmque sedebit.

2. A commission? Yes: and what commission? A commission which never could have sat at all—which never could have been thought of at all—had it been supposed that, in either House, there exists any such sense as a sense of shame.

3. An enormous dilatory plea, set, like a gun, in a self-judication system; a transparent veil for corruption: a snug succedaneum to the still apprehended and eventually troublesome inquisition, of a not quite sufficiently corrupt Honourable House,—such is this commission:—a subterfuge, which, more than perhaps all others, has damaged the reputation of the principal, not to speak of the accomplices. In Matchless Constitution, that all-prevading and all-ruling principle, the self-judication principle, has now to that local habitation, which it has so long had, added a name: a name which, so long as the mass of corruption in which it has been hatched continues undissolved, will never cease to be remembered—remembered, in time and place, by every lover of justice and mankind, as occasion serves.

Lord Eldon.—VIII. “I am uncorrupt in office; and I can form no better wish for my country, than that my successor shall be penetrated with an equal desire to execute his duties with fidelity.”

Observations.—1. I am uncorrupt! And so a plea of not guilty was regarded by this defendant as sufficient in his case to destroy the effect of so matchless a mass of criminative evidence, and supersede the need of all justification and exculpative evidence!

Incorrupt? Oh yes: in every way in which it has not been possible for you to be corrupt, that you are. So far, this negative quality is yours. Make the most of it, and see what it will avail you. Remains, neither possessed, nor so much as pretended to, the whole remainder of appropriate moral aptitude, appropriate intellectual aptitude, and that appropriate active aptitude, without which, a man possessed in the highest degree of appropriate aptitude in both those other shapes, may in your situation be, has in your situation been—a nuisance.

Desire! And so, in an office such as that of Chief-Judge, and that but one out of a cluster of rich offices fed upon by the same insatiable jaws, desire is sufficient: accomplishment, or anything like an approach to it, supervacaneous!

Yes: that he does form no better wish for his country—this may be conceded to him without much difficulty: for, whatever be the situation, when a man has been disgraced in it by inaptitude, the least apt is to him, but too naturally, the least unacceptable successor. But, as to the can, this is really too much to be admitted: for, even a Lord Eldon—after rubbing his eyes, for the length of time necessary to rub out of them, for a moment, the motes, which keep so perpetually floating in them in the shape of doubts,—even a Lord Eldon might be able to see that desire and accomplishment are not exactly the same thing; and that, where the object is worth having, desire without accomplishment is not quite so good a thing as desire with accomplishment at the end of it. Put into this Chancellor’s place, his housekeeper, supposing her to have any regard for the money it brings, would have this same desire—which, except the uncorruption, is all he can muster up courage to lay claim to, and which is so much more than can be conceded to him—the desire, in respect of fidelity and everything else, so far to execute the duties of it as to save herself from losing it.

Next to this, comes what has been seen already in his Lordship’s concluding address to their Lordships. Of the visible condition of the defendant, no intimation is given in the report: to judge from what is given, a man who could with such a peroration close such a defence, must have been at the verge of a fainting fit: in which condition he shall, for the present, be left.

PAPER IX.—

ON THE MILITIA.

(This Paper, consisting of a portion of the Constitutional Code, (viz. Ch. X.Defensive Force, § 3, Radicals who?) will be found in its proper place.)

PAPER X.

ON PUBLIC ACCOUNT KEEPING.

Complaints have of late been made, of the method at present pursued for making recordation, and appropriate publication, of the transactions of the several classes of functionaries, of whom the official establishment of the British government is composed; and of the pecumary and quasi-pecuniary transactions more particularly. By high authority, it has been pronounced inadequate, and ill adapted to its professed purpose. To this, by that same authority, a substitution has been proposed, and that in the character of a well-adapted and adequate one. It consists in simply substituting, to the method and phraseology at present employed, the method and phraseology, which is called sometimes the Italian, sometimes the double-entry mode or system; and the use of which is confined to the case in which pecuniary profit and loss are conjunctly presented to view.

Against this change, so far as regards the use of this peculiar and technical phraseology, I protest on two grounds:—1. That, instead of being conducive to, it is incompatible with, the design which, on this occasion, whether it actually be or no, ought to be entertained; namely, that of rendering the state of the accounts in question more effectually and extensively understood; 2. That, if introduced, it would of itself produce deterioration, to an unfathomable degree, in a form of government which assuredly stands not in need of any such change.

These evils will, when examined, be seen coalescing into use.

First, as to the design. What ought it to be? Answer, as above. To render the transactions in question as effectually understood as may be, and to that end as intelligible as may be, to those whose interests are at stake upon them; that is to say, in the first place, to the representatives of the people; in the next place, to the people themselves, constituents of those same representatives.

Now, then, in respect of intelligibility, what would be the effect of the introduction of this same Italian mode? So far from augmentation, it would be little less than destruction: and this, relation had as well to constituents as to representatives.

Method is one thing; phraseology is anther: 1. First, as to method: that, by means of it, any addition would be made to the number of those by whom the transactions in question would be understood, remains to be proved; no determinate reason for thinking so, have I anywhere been able to find. Whatsoever, if anything, this same addition would be, might it not, to equal effect and with equal conveniency, in every respect, be made, by the phraseology in use with everybody, as well as by that which is peculiar to merchants? With little or no hesitation I answer in the affirmative: at any rate, that which may be asserted without even the smallest hesitation is, that whatsoever may be the advantage derivable from the method, never can it compensate for the evil inseparably attached to the unintelligibility of the phraseology.

2. Next and lastly, as to the phraseology. To the whole community, with the exception of the single class designated by the appellation of merchants, this phraseology is utterly unintelligible: to all those for whose use it is, or ought to be, designed, by those by whom the substitution of it to that which is universally intelligible, is proposed: Members of Honourable House, and people without doors, included.

Of the number of those to whom it is unintelligible, compared with the number of those to whom it is intelligible, what is the amount? To any person whatsoever, the answer may be intrusted. Be it what it may,—say who can, that it will not suffice to ground the putting a decided exclusion upon the proposed change.

Now then for the other objection:—deterioration of the form of government. To a universally intelligible mode of giving expression, to the transactions of the functionaries of government, and in particular to the part which consists in the collection of the produce of the taxes, and the disposal made of it, substitute an almost universally unintelligible mode: what is the consequence? Answer—Exit Public Opinion: enter Darkness: such as that which forms the characteristic of absolute government. To Matchless Constitution may be substituted the government of Spain, Portugal, or Turkey: and this without responsibility, or danger in any shape, on the part of the authors of the change.

Obvious as these effects can scarcely fail to appear when once mentioned, to none of those persons by whom the subject has been taken into consideration do they appear to have presented themselves: neither to those by whom the change has been proposed, nor yet even to those by whom it has been opposed.

First, as to those by whom it has been opposed. These are—Messrs. Brooksbank and Beltz, two of the three commissioners for inquiry into the state of the public accounts. “A wide difference exists (say they) between the business and circumstances of a trader and those of a government department:” in the observation thus vague and unapplied consists the only objection made by them to the introduction of the Italian mode: of the distinction between method and phraseology, no intimation whatever is conveyed by it.

Next and lastly, as to those by whom the change has been proposed. Not without sincere regret is it, that, on this occasion, and for such a purpose, I hold up to view a production on so many other accounts so highly estimable as the work entitled “Financial Reform, by Sir Henry Parnell, Baronet, M. P.” late chairman of the committee on finance. Pure, once (p. 196,) purest, twice (pp. 192 and 197:)—in these two words are contained all the arguments I can find in that work, in favour of this same phraseology. “Mr. Abbot’s proposal is,” he says, p. 194, “to establish the Italian system in its purest form; and to those persons who are practically acquainted with the Italian system of accounts, the reasons on which Mr. Abbot founds his opinion of its being applicable to all official accounts, cannot but be,” he says, p. 173, “completely satisfactory.”*

“Applicable?” Unquestionably. But what is that to the purpose? Just nothing Applicable means capable of being applied. But, of the truth of this proposition what need of opinion from that gentleman or anybody else, to make us fully satisfied? Applicable, or not applicable with advantage?—that is the question. And, to that question answer has not been given by Mr. Abbot; answer has been given here.

That, of the desire of these so highly intelligent and well-informed statesmen above-mentioned, unintelligibility on the part of the subject-matter in question, and ignorance, next to entire, on the part of the persons in question, were not amongst the objects—I, who write this, am altogether satisfied. But of the desire of those by whom the recommendations made by the committee over which he [Sir Henry Parnell] presided were set at nought, and the existence of that same committee cut short, were or were not these among the objects? Relieved should I be from an anxiety eminently painful, were it, in this paper, consistent with sincerity, to answer in the negative.

“To bring forward a motion for the emolument of the persons in question” was, according to Mr. Chancellor of the Exchequer (if the account of the debate is to be believed,)† “treating them” (it should perhaps have been placing them) “in an invidious point of view:”—and, in effect, he, accordingly, on that same occasion, did what depended on him towards preventing their being placed in that same point of view.

But these same persons—who were they? Answer—“Members,” says he, “of the Privy Council,”—“a body composed of the Council of the Sovereign;” and afterwards, “the first judge in the land was included in it.”—Prodigious! And so, in the opinion of this member of the Cabinet Council, be the man who he may, the servants of the crown have but to obtain the placing of him in a situation which affords them the means of putting into his pocket an indefinitely large portion of the produce of the taxes,—this done, nobody but themselves is to be informed of the amount of it. What the amount is of the booty thus determined to be screened from detection, the right honourable guardian of the public purse has not informed us. But if the imputation couched under the word invidious be all that he objects to, a sure and easy receipt for the wiping it off is at his command. It consists—in the giving publicity to the information in question, in the instance of every public functionary without distinction.

In and by the original committee on finance, of which the late Charles Abbott, afterwards Speaker, and not long ago ennobled by the title of Lord Colchester, was chairman, extensive were the disclosures of this sort made; and, as far as appeared, in endeavours to narrow them. This was in the years 1797-1798. Thirteen or fourteen years after, came the committee on finance, of which the chairman was the still living Mr. Henry Banks, the Lord Eldon of Honourable House. From the report made by that committee, no possibility was there of learning the aggregate of the emoluments received, in the instance of any one of the functionaries occupying the situations mentioned in it: so exquisite was the ingenuity by which the deed of darkness was accomplished.

In the eyes of the right honourable persons in question, is the imputation of harbouring this same design of darkness regarded as matter of importance?—is the clearing themselves of it considered by them as an object worth their regard? The means at their command are most effectual.

For and during many years in the latter part of the last century, for the use of the directors of the life-insurance company called the Amicable Society, was annually published, in conjunction with an almanac, a list of the situations of which the official establishment was composed, with the emolument attached to each in the shape of salary. At present, in the annual publication intituled the Royal Calendar, of these situations, or at any rate the greatest part of them, a list is published; but of emolument in the shape of salary, or in any other shape, in no such publication, or in any other publication, is any mention to be found.

Now, then, by order of some one of the constituted authorities, let a complete list be published of all those several situations, with the amount of the aggregate of the emolument respectively attached to them: and to the columns in which these aggregates are inserted, let there be added another, exhibiting the total of the emoluments received by the functionary in question, from all public sources taken together; with numeral figures, expressive of the pages in which the several situations, with their respective masses of emolument, are presented to view.

Against the proposition for throwing the light of day upon this part of the den of Cacus, the only argument adduced by the right honourable gentleman is composed of the word invidious. In the import of this same word the idea of distinction is included. Do away the distinction—set fire to the gas—illuminate uno flatu the whole den, as above proposed—extinguished is this argument. Some dictionary, dead or living, he will have to turn over for another such.

On the present occasion,—after what has been said on the subject of unintelligibility, is it worth while to say anything more of that same branch of art and science (for science I see it called) to which the attribute of purity has so unhappily been ascribed? Of fiction, and nothing else, is it composed: of a tissue of misrepresentations—of departures from truth—and these not merely useless, but much worse than useless. To things, relations all along ascribed, of which things are not susceptible: to persons, relative situations in which, on the occasion in question, these same persons are not placed. Wine is said to be debtor to cloth. To what use this absurd falsehood? What explanation of anything does it give? To what human being, who has not been drenching himself with this and the kindred falsehoods for weeks or months, can it present any idea, unless it be an illusive one, unless it be translated into the vulgar tongue? True it is, that, had this locution been originally applied to the presenting to view the ideas annexed to it by the professors of this art-and-science,—it might have served as well for the purpose as does the correspondent part and parcel of the vulgar tongue: but, having once been fixed in the habit of being applied to so different a purpose, thence comes the confusion, and the useless difficulty which stands opposed to all endeavours to understand it.

So much for confusion-spreading proposition: now (to speak in logical language) use for a delusive term. Enter waste-book, cum totâ sequelâ suâ:—waste-book, a book composed of paper the value of which is that of waste-paper. To an unadept mind, what other idea than this is it in the nature of this appellation to suggest? Yet is this one book the corner-stone, on which the truth and usefulness of all the others rest:—a book, error in which infects with correspondent error all the rest:—the original, of which, though in different forms, all those others are but copies. Call this book the original book, those others the derivative books, the delusion vanishes. Call this book the chronological,—those others the logical books, the matter being traced in different orders, according to the different purposes,—a further instruction is afforded.

It is one of the branches of that art-and-science, which teaches how to make plain things difficult. A curious and not altogether uninstructive parallel, is that which might be made between this regular and technical mode of account keeping (for by both these epithets do I see it honoured) and the technical and regular system of judicial procedure. It would show to what a degree, by the leading-string held by blind custom, without any additional one tacked on by sinister interest, aberration from the rule of right is capable of being effected. Of this phraseology, if any use it have, the use consists in giving brevity to the mode of expression. Analogous is the use, in this case, to that of short-hand, as a substitute to ordinary hand,—to that of arithmetical notation as a substitute to ordinary orthography,—and to that of algebraic, as a substitute to arithmetical, notation. But small, in comparison, is the utmost service which, in this character, can be rendered by it: and on this ground, not on an imaginary one, by those who teach it, should the usefulness of it be placed.

In my Constitutional Code—to wit, in the already published volume of it—may be seen a section, in which, in the compass of sixty-eight pages, what is designed for an all-comprehensive set of books, for the exhibition of the accounts, pecuniary and quasi-pecuniary, of any government whatsoever, is presented to view. But for the bulk of it, it would have been included in this present miscellany. Official establishments, which it embraces in its view, are—not only those of this country, but those of any other country whatsoever.

To any attention, bestowed upon it by the only persons from whose attention to it any good to the community would ensue,—two objections there are, to the potency of which the author is duly sensible. No title had he, having the effect of a warrant from authority, for the undertaking of it. Instead of the £1600 a-year, or some such matter, from all the members of the community taken together,—16s. from each of such of them as may vouchsafe to purchase it, is the remuneration he will receive from it: by which remuneration, in the case of this work, as in the case of almost all others by which he has endeavoured to render his labours useful to his own country and mankind,—his profits will, to a large amount, be left on the minus side.

Two objections there are, to its being regarded as worth the 16s. by those with whose title to receive money out of the taxes, Mr. Chancellor of the Exchequer is so effectually satisfied, by the consideration of the quantity thereof so received by them. Two objections, and each of them an unconquerable one. No such remuneration will be offered; and, were it offered, no such remuneration,—nor any remuneration, other than that which would be afforded by the acknowledgment of the usefulness of the work,—would be received.

But, let but a title, such as that of privy councillor, or were it even no other than that of commissioner, with £1600 a-year, or some such matter, be added to it—oh what a treasure it would be! Multiply the £1600 by ten,—multiplied by the same number would be the value of the work! Multiply it by a hundred,—the value would be multiplied an hundred-fold! Multiply it by 10,000, its value would outstrip that of Holy Writ;—and prostrate before it would lie the whole population of the cabinet, accompanied and sanctified by his Grace of Canterbury, and all those other paragons of piety, whose regard for that same Holy Writ is manifested by the fineness of their sleeves, and the Tyrian dye of their servants’ liveries. Included are all these propositions, in that mathematical axiom, which is the key-stone of Matchless Constitution—Aptitude isasopulence.*∗*

PAPER XI.

CONSTITUTIONAL CODE—TABLE OF CONTENTS

AS SHOWN BY TITLES OF CHAPTER AND SECTIONS.

(This will be found in its proper place.)

COMMENTARY ON MR. HUMPHREYS’ REAL PROPERTY CODE, BY JEREMY BENTHAM.

FROM THE WESTMINSTER REVIEW, No. XII., FOR OCTOBER 1826.

being A REVIEW of

“OBSERVATIONS on the ACTUAL STATE of the ENGLISH LAW of REAL PROPERTY, with the OUTLINE of a CODE. By James Humphreys, Esq. of Lincoln’s Inn, Barrister.” 8vo. Murray. London.

[We conclude this Number of the Review with a Supplement, in a form unusual in similar periodical publications. In the conduct of this work we may lay more than an ordinary claim to the use of the personal plural, for it is rare that our opinions are not shared by the whole of our corps, and still rarer for any of our articles to reach the public without having previously passed the ordeal of more than one judgment. The following composition is published as it came from the hands of the writer; its merits are as peculiar as its style, and it would be an attempt equally vain as useless, to give to such an article a general uniform; and to attempt to conceal the individuality of the manner, if not of the matter. Holding, as we do, the intellectual qualities of Mr. Bentham in the very highest esteem, and having, during our course, invariably maintained the legislative views of this distinguished juris-consult, whom we regard as the great founder of a new and better system, it may readily be supposed that we were anxious to ascertain his opinion of a work, respecting which, from its nature and subject, he may be justly considered as the highest authority. This opinion has been communicated to us in the following form; and we publish it unchanged in the most trifling particular. If the weight which Mr. Bentham’s name must carry, when thus united with that of Mr. Humphreys, accelerate in the least the progress of that legal reform which is now beginning to be so loudly demanded, we shall be pardoned for having deviated in this especial instance from the approved form of conveying the arguments of a Reviewer.—Ed.]

COMMENTARY ON HUMPHREYS’ REAL PROPERTY CODE.

Of a work such as this, the publication forms an epoch: in law certainly; I had almost said in history. In possession; in expectancy; in prospect; in project—have you any property in the shape thus denominated? Deep, in proportion to the value of it, is the interest you have in this work; signal and unprecedented your obligation to the author of it. Lay even property in this shape out of the question; still, if by those on whose will everything depends, his exertions be but duly seconded, strong will be the ground you will have for felicitating yourself on the appearance of this star in the horizon of jurisprudence: for of all that is valuable to man, nothing is there to which, directly or indirectly, its beneficial influence will not be found to extend. It has, indeed, for its direct object and main subject-matter, that species alone of property to which English lawyers, and they alone, have so absurdly and uncharacteristically, instead of immoveable, given the name of real; but, for everything else, to which it is in the nature of law to afford security,—security, in a proportion as yet unexampled,—will, if his plan be carried into execution, be the effect.

Not less signal is the moral than the intellectual merit manifested by it. A young briefless lawyer, who, on a survey taken of the road to advancement, had been fortunate enough to descry this as yet untrodden track, and bold enough to enter upon it,—this was the sort of character, in which, in my imagination, the author had been pourtrayed. To one who, in the shape of business, had nothing to lose,—distinction, even if that were all—distinction, how barren soever—would of course have its value. Imagine, any one, my astonishment, when the information reached me, that, instead of a young adventurer, the work had for its author a man advanced in years; a conveyancer, at the very head of his profession; a reformist who, by every page written, and every hour thus spent, in an occupation not less laborious than meritorious, had thus been making a sacrifice of pecuniary interest on the altar of public good.

Proportioned to the service he has rendered to all who are not lawyers, is the ill-will which, with few exceptions indeed, if man be man, he cannot but have called forth, in the breasts of all, who, proportioned to the advancement given to the art-and-science, see, as they cannot but see, the defalcation made from the profit of the trade.

Sincere, if ever admiration was, is that which is here expressed: whether it be a blind one, what follows will soon show.

Hale, with all his merits; Hale, like all lawyers who had gone before him, and almost all who have come after him, was no reformer: nothing better than an expounder: everything stated by him was stated as he found it, or conceived it to be: no inquiries as to what it ought to be: in the eyes of lawyers—not to speak of their dupes—that is to say, as yet, the generality of non-lawyers—the is and the ought to be (or, as in Greek it would be so much better—the το ον and the το δεον, from which last, Ethics has received the more expressive name of Deontology,) were one and indivisible. By David Hume, in his Treatise on Human Nature, the universality of this practice of confounding the two so different objects was first held up to view.

As to Blackstone, flagrant as were the abominations, which at every page he had to wade through must have met his eye—not to extirpate them, not to expose them, was his endeavour, but to cover and preserve them; and which of the two quantities has been the greater—the service he has done to the people in the one shape, or the disservice in the other—both being to his narrow mind, probably, alike objects of indifference—is a question easier to propose than solve.

Before this work came out, code and codification were rank theory; theory; and, as such, objects of sincere horror, with as much of pretended contempt as would mix up with it. Now, at length, they are become practice; contempt has been repulsed by its own image, and horror has given way to praise. But now to particulars.

Law of landed property being the field,—follow eight distinguishable heads, under which, it is believed, may be ranked Mr. Humphreys’ proposed improvements; some more, some less, explicitly declared.

1. Substitution of apt, to the present unapt, forms of the instruments by which landed property is disposed of—say, for shortness, of conveyancing instruments, or formulæ.

2. Melioration and extension of the registration system, as applied to conveyances.

3. In the case of freeholds, substitution of the generally prevalent to the anomalous courses of descent, namely, Gavelkind and Borough English.

4. Reduction of copyholds to the state of freeholds.

5. All-comprehensive partition of common lands.

6. Substitution of a really existing code, to the present compound, of a really existing, with an imaginary civil, or say non-penal, code of law, so far as relates to landed property. Codification this, in contradistinction to consolidation.

7. Appropriate addition to the judiciary establishment, in so far as may be necessary to the giving execution and effect to the substantive part of such proposed code.

8. Substitution of an apt, to the present unapt, system of judicial procedure, or say adjective law, in so far as necessary to that same end.

Of the separation thus made, paramount, with a view to practice, is, in my view of the matter at least, the importance. Probability of adoption and dispatch in execution join in the requisition, that, of so vast a whole, the number of separate parts be maximized. 1. Probability of adoption: because, let the whole plan contain, say two parts, both of them beneficial to the universal interest, but opposed respectively by two distinct particular and thence sinister interests,—one of these interests—not by itself, but with the addition of the other, being strong enough to throw the plan out,—one of them may, notwithstanding the opposition, be carried into effect: whereas, if the separation had not been made, both sinister interests would have stood opposed to it, and there would have been an end to it. Thus stands the matter, in the case of two, and no more than two, mutually unconnected sinister interests; but, the greater the number of them, the smaller will, by the supposition, be the number of the individuals united in opposition by each; and the greater, accordingly, the number of universally beneficial arrangements possessing a chance of being carried into effect. For want of such separation,—many are the salutary arrangements which, if separately proposed, would have found no opponent, but which, by being conjointly proposed, have been lost.

Then as to dispatch: if appositely made, the further the separation is carried, the greater the number of appropriately apt hands, or sets of hands, among which it may be distributed.

Then again as to appropriate aptitude: the further the separation is carried, the greater the chance of finding a hand, or set of hands, in a superior degree apt, each of them for one part, though they would not respectively have been equally so for any other.

Now for the application. I. Improvement the first. Substitution of apt to unapt formulæ. To this I allot the first rank. Why? Because least unlikely to be adopted, and most speedily capable of being effected.

Take any one of them, for example. In so far as, for its being employed and carried into effect, it requires not any alteration in the existing tenor of the statute law, or in the course of judicial practice,—it is capable of being carried into practice by the philanthropist himself, by whose ingenuity it has been devised: and, the greater the number of the improvements thus happily circumstanced, the more extensive will be the number of them effected by this most simple of all means.

Unhappily, by this alone, without assistance from statute law, not very extensive, it is feared, can be the effect produced. At any rate, for each distinguishable improvement, the less the assistance needed from that so difficulty-moved machinery, the better the chance.

Of the load of evil in all shapes with which the instruments in question are oppressed,—lengthiness to wit, thence unintelligibility, expensiveness, and dilatoriness—of all this evil the main efficient causes are shown to be composed of the work given to needless and useless trustees, in whom no confidence is reposed, and the addition of the blind agency of judiciary functionaries to the mental labour of professional draughtsmen, in the fabrication of the mendacious and pick-pocket instruments rendered necessary, under the name of fines and recoveries. True it is—this mass of abuse could not be cleared away by any other hand than that of parliament. But, by that of any professional draughtsman, not inconsiderable are the improvements that may be introduced: the endless sentences at present in use may be broken down, and reduced to the scantling of those employed, on the like occasions in every other country, and on all other occasions in all countries:—for the purpose of enabling the most unpractised eye to see its way clearly over the present labyrinth, and take repose wherever it found need,—the several topics, distinguishable in those huge masses of matter, which in the present practice are compressed together into the compass of one sentence, may be presented to view by their already universally known denominations: the matter, belonging to each such topic, may be formed into a separate sentence; and to each such sentence, to save the need of repeating it in terminis, or by a little less lengthy general description, a numerical appellative may be allotted. Of the general indication thus given, exemplification, and thence (it is hoped) elucidation, will be seen in the course of the ensuing pages.

As to the clearing the system of the other more highly morbid symptoms,—I am but too sensible how far, even with these additions, his plan of operation would fall short of meeting the disorder with anything like an all-sufficient remedy. Still, however, I see in it the least unpromising of all his generous enterprises. In respect of the force of the sinister interests it would have to encounter, it stands less unfavourably circumstanced than any other. By rendering conveyances, and the contracts embodied in them, somewhat less unintelligible to parties and other interessees,—it would lessen the mass of suffering in the shape of disputes and disappointments, and in so far lessen the abundance of the lawyer’s harvest: it would reduce, in some degree, the profit of the conveyancers’ company,—and of the firm of Eldon and Co. in Chancery and the House of Lords: but it would not, as any system of procedure capable of fulfilling its professed end would, go to the blowing up the manufactory of factitious litigation at one explosion,—and, at the first proposal of it, call up, in defence of Matchless Constitution, that judiciary system by which, to ninety-nine hundredths of the people, access is denied to so much as a chance for justice.

II. Improvement the second. Giving efficacy and extension to Registration. For this purpose I shall have to treat our artist with a sight of an instrument (a fruit of female ingenuity) suited to this one of his beneficent purposes, in a degree beyond what he can have had any conception of.

III. Improvement the third. Abolition of the anomalous courses of Descent. Absolutely speaking, yes: but comparatively speaking, no great good seems here to be expected: on the other hand, no great resistance to be apprehended.

True it is, that this improvement, the subject-matter of it being an insulated one, is in its nature capable of being carried into effect by itself. But, setting aside the supposition of an all-comprehensive code,—or at any rate an all-comprehensive property code,—the benefit produced by it would be comparatively inconsiderable; its principle, if not only one, being that which it would have in the character of an instrument of simplification.

IV. Improvement the fourth. Reduction of Copyholds to the state of Freeholds. Highly beneficial this: but at the same time unavoidably operose and tedious. The sooner indeed it were begun, the better; but, in no other shape need, or should, the commencement of the course of improvement wait either for the consummation or the commencement of it. Pride would set in array against it the aristocracy of the country, in their character of lords of manors: pecuniary interest, the lawyer-class in the character of stewards: not but that, in the long-run, pecuniary compensation ab intrà, with or without a little of ditto ab extrà,—at the expense of the whole community, to whom the whole rule of action would thereby be rendered so much the more accessible,—might peradventure gain the votes of the one, and quiet the alarms and clamours of the other.

V. Improvement the fifth. Partition of Common Lands. To a certain extent, this improvement is comprised in that which consists in the conversion of copyholds into freeholds: to a certain other extent, that is to say, in so far as the land is already in a state of freehold—or, being copyhold, can be divided into separate parcels, leaving the manorial rights in other respects untouched,—it will require the arrangements, for the effectuation of which the general inclosure act was intended, and the several particular inclosure acts have been, and continue to be intended. As to this matter, true it is, that the greater the degree in which the provisions of the particular acts can be generalized, and those of the general act improved upon, of course so much the better: and propositions for this purpose may of course be expected from the ingenuity, experience, and public spirit of Mr. Humphreys. But, in addition to those efficient causes, others of a peculiar nature, and not quite so prompt in growth, are required; that is to say, capital in proportionate quantity—capital in the appropriate hands—and a state of things such as will admit of the giving to it the direction in question to advantage. Now, as to capital, it cannot be made to accumulate in, or find its way into, these same hands, with quite so much celerity as may be given to the operation of drawing up an act of parliament: and a state of things which affords probability to the opening of the trade in corn to foreign cultivators is but little favourable to increase in the home-production of it. Not that, by these circumstances, any objection is opposed to that part of our learned reformist’s plan which consists in the procurement of the appropriate mass of information subservient to these same purposes. But of that in its place.

VI. VII. VIII. Improvement sixth, seventh, and eighth—Codification. Substitution of really existing law to fictitious: Substitution of an apt to an unapt judiciary establishment and system of procedure: as to these three parts in conjunction, there will be more or less to say before this article is at a close.

Now for a trespass on his patience. The time is come, when the scalpel must be set to work: state of it much rougher than the anatomist could have wished: but neither time nor space admit of that smoothness which would otherwise have been endeavoured to be given to it. More than fifty years ago, I took it up for the first time, with Blackstone lying on the table. The subject being so different, it is with affections correspondently different, and proportionable reluctance, that I take it in hand now. In Blackstone, every abuse has its varnish or its apology: in Humphreys, none. Should the liberties now taken have any such effect as that of calling forth like for like, my gratitude will not be less sincere than my admiration is now.

Observations applying to all three formulæ viewed together, are the following:—

I.Emendandum the first. Subject-matter, length of each one of the three pattern instruments, and symmetry as between the three: Description of the subject-matter of disposition insufficient, and thence, at the same time, by the whole amount redundant and useless. Of the subject-matter of a sale, the number of diversifications being, practically speaking, infinite—no one can, with propriety and safety, be taken for, and thence copied as, the representative of any other: much less of all others. In each instance, what should be given is—in the body of the instrument, a generic designation, as short as possible so as to answer the purpose: in the schedule (a sort of appendage referred to, but not exhibited in the author’s draught,) a description, the particulars of which must, in the nature of the case, be all of them individual. Of a building, for example, the generic description will, of course, be of one sort; of a piece of land, of an altogether different sort. As to the individual description—for the purpose here in question, in addition to other purposes, all habitations should be numbered. For the process of enumeration, an all-comprehensive plan may be seen in my parliamentary reform bill. Of a piece of land, on which there is no building, the description of the site will be given, by giving the name of the nearest road, with the several names of the several fields of which it is composed. In respect of the piece of land, there can be no difficulty: since, in fact and of necessity, in whichever way held, whether in commonalty or in severalty, every field has its name. Of the compound subject-matters, composed of buildings with land annexed, the mode of description is rendered familiar to everybody by those printed papers of particulars which are employed on the occasion of sales, whether made by auction or by hand.

Behold here, then, already drawn, though by an intrusive hand, the proper contents of the schedule: say, rather, the only proper. For, what other description of the subject-matter can be so proper for a deed of sale, as the very one to which, by the agreement to purchase, the purchaser had given his assent?

But, the knot of lawyers must be paid—paid, for doing, in not improbably a bad manner, what has been already done in the best. If, for appropriate accuracy, the scientific eye affords a promise of being of use (and I do not say but that in some instances so it may be,) the proper time for its operation is antecedent, not subsequent, to the adjustment of the subject-matter of the conveyance—the paper of particulars.

If this be so, useless then is every syllable occupied in individualizing the subject-matter in the body of the deed.

Behold now the quantity of surplusage thus employed; employed in giving to conception difficulty, and to expense increase. In the deed of sale, lines 16, whereof surplusage in this form, 5: in the mortgage-deed, lines 19, whereof surplusage in this form, 11: in the marriage-settlement deed, lines 96, surplusage in this form, 11: lines in all three together, 131: whereof surplusage in this, besides other forms, 27.*

Now as to length of sentences, separately considered. The more lengthy the sentence, the greater the fatigue of him whose misfortune it is to be subjected, on one account or other, to the obligation of reading it and lodging the contents in his mind. When the fatigue rises to a certain pitch,—such is the reader’s anxiety to reach the end of his labour,—that, for want of a resting place, he slides over the topics, without dwelling upon any of them the length of time necessary to the impregnating his mind with an adequate conception of it: on the other hand, let it be broken down into its several distinguishable topics,—so many topics, so many sentences; so many sentences, so many resting-places: and whatsoever topic requires particular consideration, will be considered at full leisure: on time wasted in disentangling it from the rest.

What is more, no danger of the draughtsman’s own mind losing itself in the mizmaze. This apprehension—is it a fanciful one? In proof of its well-groundedness, I call two witnesses: one of them, our learned reformist himself, the vast reduction, made by him in the extent of the labyrinth, notwithstanding; the other, no less a personage than a learned lord, the Lord Advocate of Scotland.

1. Enter, first, our learned author.—Evidence of bewilderedness, an offence against the laws of Priscian. Locus delicti, Family Settlement Deed:—Corpus delicti (as the Romanists say,) the words “convey, charge, and settle.” The loves of the parts of speech are no secret to any boy, who, in any one of the royal schools, has been initiated in the gymnastic exercise, of which a poetical grammar is the instrument. Here, so it is, that, to enable them to beget a meaning, the three amorous verbs require, each of them in the shape of a preposition, a different mate: convey, to; charge, with; settle, on. Now, then, as to the fate of these same lovers. After a long and adventureful period of unsatisfied desire, burning, in one instance, through a course of not fewer than 15 out of the 96 lines, convey is at last made happy in the embraces of his dear to; charge, in the arms of with. Not so with the luckless settle. In vain has the wood been hunted over for a mate for him; no such comfort for him is to be found, and he dies childless.

Not that Miss Campbell, for whom the benefit, attached to the burthen conveyed by the verb charge, is intended,—is, at the end of the story, disappointed of it; for, in a recess of the wood (candour requires the confession) the preposition to steps in at last, steps in a second time to her assistance; and her two hundred a-year pin-money, and five hundred a-year jointure, form the result.

2. Enter now Lord Advocate.—If a warrant,—from practice, power, and dignity, in high situations,—can afford consolation under the imputation of a grammatical peccadillo, the learned delinquent needs not be inconsolable.

Opening the House of Commons folio, entituled “Return, Parochial Education, Scotland, Order for Printing, 27th February and 21st May, 1826,” you will find it written in page 3, “Letter from the Lord Advocate of Scotland to Henry Hobhouse, Esq.” Follows here what is relevant to the present purpose; what is not relevant being eliminated.

“I had the honour to receive your letter, stating, that the king, having been pleased to comply with an humble address for” (the letter-press is thus italicized) “an account showing,” (then follows the matter of a folio page) “and desiring” (mark here the king, instead of commanding—Oh! treason! desiring—deprived of all command, and reduced to desire!) “desiring that I would take the necessary steps ‘for procuring, &c. and transmit, &c., that it might, &c. previous to being laid before the House of Commons.’ ” Well—the king having been pleased, what then? Nothing. For at the word Commons ends the paragraph, closed by a full-stop. Then comes the next, beginning with “I beg leave to state that, in obedience to the above order, it had occurred to me,” and so forth.

Now, as to the effect produced on the faculties of the pre-eminently learned composer, by the folio page—the unbegun and unended sentence which, lest the like effect should be produced on the mind of the reader, is here omitted.—Such is its narcotic quality, that while dragging on with it, he falls asleep, and in the course of his sleep dreams of a certain “order,” to which he is rendering obedience. Rubbing his eyes,—“the above order,” cries he.—Order? What order? Look the whole page through, no such thing as an order will you find.

II.Emendandum the second: in the three patterns taken together, another feature of redundance: and the redundance pregnant with error on the part of learners. Of the particulars in question, the tenor different in each species of deed: yet, whatever is capable of being taken for the subject-matter of a marriage settlement, is alike capable of being taken for the subject-matter of a sale, or a mortgage. Evil effects three: 1. Error liable to be produced in the minds of learners, in supposing the general necessity of the difference exhibited in the individual case; 2. and 3. Perplexity, and waste of labour, in examining the three, to ascertain whether such necessity has place. Sharers in these dangers, non-lawyers all: law-students as many, and tyro-lawyers not a few.

Note that, on the author’s own plan,—between the two species of dispositions, there are but two points of difference: one is—that, to which expression is given, by the substitution of the word charge in the deed of mortgage to the word sell in the deed of sale: the other regards the mode and result of the re-payment to be made of the money lent. Had the exhibition been thus confined to the points of difference, would not the aid given to conception have been rather more effectual? Of needless diversity, another bad effect is—the distracting the attention from the needful. “Eadem natura, eadem nomenclatura.” (Same the ideas, same the words should be.) In contemplation of the above inconvenveniences, this rule has been ventured to be delivered elsewhere. If it be worth remembering, the jingle in the Latin, the metre in the English, may have their use. In composition for ordinary purposes, the opposite propensity is in these days prevalent: when the import meant to be conveyed is the same, to find for each occasion a different expression, is the task the writer sets himself. Harmless, when clear and muddy, right and wrong, are matters of indifference: Not altogether so in legal instruments, on which every thing that is dear to man depends.

III.Emendandum the third. Sentences more lengthy than necessary. Lengthiness of the whole of a discourse is one thing: lengthiness of these its component parts, another. Of the lengthiness of the whole, consequences such as have just been seen, are the result. Lengthiness of the parts separately considered is the imperfection now more particularly meant to be brought to view. By the manner of printing, it looks as if the reduction of the apparent, superadded to that of the real, length of the whole, had been among the objects of our learned reformist’s ambition.

As to paragraphs, in no one of the three instruments does the letter-press exhibit the appearance of more than one. True, as to sentences, in the deed of sale, you might, if hard pushed, make any number, from one to five, according as you pointed the paragraph: though by the punctuation one only is there exhibited. But, in the mortgage deed, which in the length of the whole is much the same as that of the other, you cannot make more than one.

As to the marriage-settlement deed, not a single resting place was I able to find, till I came to the word Allen in the second page, line 24:* quantity of matter travelled through, these 24 lines added to the 26 lines in page the first:—total quantity, fifty lines:—more than half of the whole, with its three full pages, and its 96 lines. Here at length it is—that, in breach, as it should seem, of his original plan, as indicated by the letter-press, our learned draughtsman,—so completely had he run himself out of breath,—has, in compassion for self and readers, though it should seem not without reluctance, put down a full stop.

In page 3, line 14, having a proviso to put in, he of necessity begins a fresh sentence: but, as if to make us believe that no addition is thereby made to the number of the sentences, he has done by us (pardon the expression) rather unfairly: putting, instead of a period, no more than a comma, at the close of it. So again, when he comes to line 25 of this same third page, he plays us a similar trick: and, as if the better to disguise it,—at the commencement of this last proviso, he omits the distinctive type employed for the assistance of the eye at the commencement of the first.

Thus it is that, after so much as has been done by our learned reformist in the way of self-purification—purification of his style from the malady of lengthiness, the leprosy of lawyer-craft, still that which has been seen has as yet cleaved to it: to complete the purification, a little sprinkling, such as is here offered, of the cleansing water, remains wanting to it.

IV.Emendandum the fourth. Indication of Topics, none. Horrific, of course, to learned eyes, will be so flagrant an innovation, as the one, the absence of which is thus audaciously made a matter of charge. Lay-gents, however—and for them alone am I of counsel—Lay-gents will, I flatter myself, see a convenience in it. Besides the clearness and promptitude it gives to conception, it performs the function of a Macadamizing hammer, in breaking down the aggregate mass; so many topics, so many denominations; so many denominations, so many sentences.

So much as to lengthiness on the part of the discourse. Now as to the consequences of it on the part of the readers. For my own part, (ex-learned as I am, and therefore, if ever, no longer learned—in the law in general, and in conveyancing law in particular, never learned at all, till I got this smattering at the feet of my Gamaliel;)—for my own part, I confess my perplexity to have been extreme; as (I fear) will, by blunders, in I know not what number, be but too amply testified. Nor can I (for I am a little out of humour, and revenge is sweet;) nor can I (I say) altogether suppress my surprise, that in this perplexity I have had a sharer in my learned master himself:—witness, inter alia, the same exception thrice imbedded, twice repeated, at the expense of four lines out of the 96,† in this one principal paragraph.

Apropos of these same exception clauses, I may, perhaps, take the liberty of submitting to his consideration the course which anybody may take for evolving, and which I always take for avoiding, such involvements; but this, if anywhere, must be in another place. At any rate, examples in abundance may be seen in “Official Aptitude Maximized,” &c. just issuing from the press.

At the present writing, I must not neglect my clients: least of all my fair one, the heroine of the piece, for whose interest,—how ill-soever our learned reformist may think of me for the preference,—I cannot help feeling rather more solicitude than for his:—she having so much more at stake; and, in this her approaching condition, having so many ladies fair to share with her in the exigencies belonging to it. No: I will not think so meanly of her understanding, as not to suppose that,—how happy soever in her Mrs. Allen state,—it might not, on some occasion or other, occur to her, in her anxiety for the dear little ones, to cast an eye over this her magna charta, and, in its pages, as in a horoscope, seek to read their fate. This being supposed,—it cannot, I think, but be more or less matter of accommodation to her, to find in those same pages a possibility of understanding it. This accommodation, in so far as time and space would allow, it has, in the way that has been seen—and will, in another way, be more particularly seen,—been my humble endeavour to supply her with.

To render perceptible to sense the degree of improvement introduced by him in respect of lengthiness, the ingenuity of my learned master has, with happy effect, exhibited, in parallel pages, his proposed instruments, framed upon his reduced scale,—placing them by the side of those which he found in use. By the long succession of vacancies, the attention of the reader is in every two pages drawn anew to the difference; vacancies, in the deed of sale, 20; in the mortgage deed, 10; in the marriage settlement, 23. In the mind of his adventurous pupil, ambition, not altogether unmixed with a dash of envy and jealousy, has inspired a similar course; the dwarf upon the giant’s shoulders is an emblem which the temerity will be apt to present to recollection in the minds of readers. How small the utmost ulterior reduction I have been able to effect, will be obvious to every eye.

By the particular type employed in the re-print here given of author’s draught, indication is given of most of the words regarded as capable of being eliminated, without prejudice either to intelligibility or to certainty, supposing the form exhibited in the reviewer’s draught substituted. In the reviewer’s draught a further liberty is taken, by the insertion of a few additional topics, which, for the reasons given in the notes, afforded a prospect of being of use. By a correspondent sign these also are rendered, in like manner, more readily distinguishable.

[* ]To certain divines, this anecdote has not been an acceptable one: the sort of ingenuity, which has applied itself to so many other reported facts and doctrines, has accordingly applied itself to this incident: endeavours have been employed to explain it away. But if in this part the sacred volume is not clear enough to be depended upon, neither can it be in any other: instead of a guidance, the whole of it is but a snare. He “did with her according to his vow;” viz. “offer” her “up for a burnt-offering.”

[* ]Strype’s Life of Whitgift, p. 198, in Neale, § 457.

[† ]Cotton’s Life of Hooker, prefixed to his Ecclesiastical Polity, p. 23.

[* ]Davenant, quoted in Smith’s “Wealth of Nations.”

[† ]In France, no fees to judges, no selling of law-places. Is it not this, for one thing, makes lawyers so eager to support Ministers in their schemes for cutting the throats of the French?—the French, who, whatever mischief they have done to one another, have done none to us, but love and respect us.

[* ]Blackstone’s Commentaries, Introduction.

[† ]The rule is, that every interrogatory must have a charge to support it, in which a man is obliged to assert, at random, whatever he wants to know.

[‡ ]May now—1823—be transported.—Editor of original edition.

[* ]Burrows’ Reports, Preface.

[* ]Hale’s Pleas of the Crown: title Larceny.

[† ]“Happily for us, we are not bound by any laws but such as are ordained by the virtual consent of the whole kingdom, and which every man has the means of knowing.”—Ashhurst.

[* ]King against Perry and Lambert, 9th December 1792. Erskine’s Speeches, II. 371.

[† ]Holt’s Libel Law, 2d Edition, page 115, from E. T. K. B. 1804; and 7 East. Rep., The King v. Johnson.

[* ]1 Russel, p. 323.

[* ]Vide 33 Ed. I. St. 2.—Ed.

[† ]Year-Book, 20 H. 7, 11. b. in Comyns’s Digest, title Pleader, 2 K. Pleader in Conspiracy.

[* ]See the Book of Fallacies, as reprinted in the present collection.

[* ]Reprinted here from the Morning Chronicle of 19th July 1819. The figures are here inserted for the purpose of reference to the Remarks.

[* ]Through the French paix, peace comes from the Latin pax. Pax has for its grammatical kindred, pactum, a treaty or agreement. Among the most ancient, and therefore the wisest, of those ancients, whose sentiments and conduct, by the phrase, wise ancients, we are so frequently called upon to take for the model of our own, war for the purpose of extermination, with no other softening than was prescribed by the profit of enslavement, was the natural situation of those same wise nations, with reference to all other nations: which other nations, in consideration of their deficiency in the article of wisdom, were lumped together under the general denomination of barbarians. At the same time, in case of a special agreement, or treaty of peace, entered into for that purpose, any nation in particular might stand exempted from that fate to which, but for such special exception, it was doomed. Accordingly, among the Greeks, by two correspondent and single-worded denominations, expressive of the absence and presence of this circumstance of exception, barbarians were distinguished into those, between which respectively and the wise nation, peace, meaning by peace treaty, had place, and those with whom no such peace had place; and among the Romans, though it appears not that the two appropriate terms had received translation into their language, the sentiments in question were very efficiently and frequently conformed to in practice.

[* ]Since this Preface was committed to the press, some change having been made in the list of the Papers originally intended to be inserted; hence some uncertainty and mis-statement in the numerical designation of them. But as, by reference to the list of contents, things may be set right, the benefit of correction would not (it has been thought) pay for the trouble. [The changes appear to consist in the insertion of “Supplement to the Extract” as Paper IV.; the transference of the Paper “On Public Account-Keeping,” from No. VIII. to No. X.; and the transposition of what were formerly Nos. IV. V. and VI. to Nos. V. VI. and VIII. respectively.—Ed.]

[* ]Viz. “of the good,” or “benefit” to “the evil-doer?”—Ed.

[* ]Another place.]—Westminster Review for 1826, No. XII.

[* ]Four—vide supra, p. 265, Note *—Ed.

[† ]The four first, and the tenth, ib.—Ed.

[‡ ]5th, 6th, 7th, and 8th, ib.

[∥ ]5th and 6th, ib.

[¶ ]7th and 8th, ib.

[* ]5th and 6th—vide supra, p. 265, Note *—Ed.

[* ]Mis-seated and extravasated.] To men conversant in the medical branch of art-and-science, the use and importance of nosology is no secret. Be the disorder what it may,—to it how can any cure, under it how can any relief, be administered,—unless it be spoken of? And, how can it be spoken of with best effect, unless a name, and that an appropriate and characteristic one, be given to it? As little to the practitioners in the body politic is this a secret, as to those in the body natural. But, under matchless constitution, the practitioners—having and being actuated by an interest at daggers-drawn with that of the patient,—hence every idea and every expression, which contributes to throw light on the nature of the disorder, is, in proportion to the strength and clearness of that light, necessarily and uniformly odious: hence the endeavours to cause it to be regarded as ridiculous.

[† ]Mode of connexion between official service and official remuneration. In the character of a Supplement to the section, on Official Remuneration, as reprinted in the extract from the Constitutional Code,—matter under this head has for some time past been collecting. But, no great progress in it had been made, when the observation was also made, that this is but one modification of the manner of bringing into coincidence the line of conduct prescribed by private interest, and that prescribed by public duty: and that—to complete the problem, what was requisite was the establishing the correspondent closeness of connexion between maleficence on the one part, and punishment on the other part:—punishment, together with the several other remedies, which the nature of things admits of:—namely, satisfactive, suppressive, and preventive. Desirable and requisite is this coincidence in the case of official men,—true: but not more so than in the case of all other persons whatsoever.

These things observed, what was further observed was—on the other part, that the head to which this disquisition belongs is that of nomography in general. But, in the collection of matter under this head, considerable progress had been already made. The art-and-science of clothing, in the best adapted form, the several modes of giving expression to the dictates of the will, may be considered as a hitherto unobserved branch of logic: the branch of art-and-science as yet designated by the name of logic, being, as to its subject-matter, confined to the dictates of the understanding—a faculty not exactly the same with the will, though not far distant from it.

Nomography—(from a Greek word which signifies law, and another which signifies to write, or say, give expression to)—is an appellation, which presented itself as capable of being made to serve, with most convenience, for the designation of the logic of the will. True it is, that between the will operated upon, and the will operating upon it, degrees of relation in respect of power, there are three: namely, superiority, equality, and inferiority; and that, in the case of nomography, the relation borne by the operating will to the will operated upon, is no other than that of superior to inferior: and, as in the case where the will operating is that of the superior, the mode of address has its appropriate denomination; namely, in private life, command, in political life, law, ordinance, and so forth,—so has it in the case where it is that of an equal; as for example, proposal or proposition: so likewise in the case where it is that of an inferior; as for example, petition, not to mention other appellations of a less decided character.

These things notwithstanding,—no sufficient cause presented itself to view, for considering the matter of this branch of art-and-science, as distributed under those denominations corresponding to the arithmetical distinctions, or for looking out for any other denomination than this of nomography. Why? Answer:—1. Because, in comparison of the occasions on which the expression of will receives the name of law, those on which it receives the two other denominations, are, when taken together, so much less important; the interest at stake being so much less considerable: 2. Because the motives, or say inducements, by which compliance (the effect aimed at) is produced, are not, in those cases, at bottom so different, as to a first glance they will be apt to appear to be: 3. Because, in respect of the rules, having for their object and effect the securing the coincidence between the mode of conduct which it is the desire of the operating will to produce on the part of him whose will is operated upon, and the conception thereby entertained of that same will, the difference in the several cases is comparatively inconsiderable. Supposing the assortment of rules for this purpose correct and complete as applied to law,—nothing, or next to nothing, will require to be done, in the view of providing rules for those two other cases.

Should the papers thus denominated arrive at a state in which they will have been deemed fit to see the light,—it will then be seen—in what a variety of ways the effects of imperation in its two shapes—positive command, or say jussion, on the one hand, and prohibition, or say inhibition, on the other—are producible. Consequence of this variety: difference—in some cases between the effect intended, and the effect produced; in other cases, between the effect appearing to be intended, and the effect in reality intended.—Cause of the difference: in the first case, want of discernment; in the other case, discernment applied to a sinister purpose.

Here, then, in the political melodrama, are so many dramatis personæ, who enter upon the stage in masquerade. Prohibition, disguised under the cloak of positive command: positive command or permission, under the cloak of prohibition: permission, remuneration and encouragement, under the cloak of punishment. Of this masquerade, under the head of Indirect Legislation, some intimation may be seen given, as long ago as the year 1802, in the Traité de Legislation Civile et Pénale,—in what is said of the effect of fixed penalties, in the Introduction to Morals and Legislation, titles Properties desirable in a lot of punishment, and Proportion between crimes and punishments,—in what is said under the head of Blind fixation, &c. in the Petition for Justice, device the 8th; and in the work still in the press, intituled Equity Dispatch Court Bill, § 6, Judge’s Powers.

[* ]March 30, 1830. Motion for “a select committee to inquire into the land revenues of the crown, under the management of the Commissioners of Woods and Forests, and to report their opinion as to the means by which they may be rendered most available for the public service.”

[* ]See the several works which were included under that title, as printed in the present collection.

[* ]This tract was first printed in the Pamphleteer (No. XIX.)

[* ]Of the matter of these principles, a portion more or less considerable would probably be found in that part which concerns Reward, of the work not long ago (1811) published in French by Mr. Dumont, under the title of Theorie des Peines et des Récompenses, from some of the author’s unfinished manuscripts. (See the Rationale of Reward, in this collection.)

[* ]“Speech on presenting, on the 11th of Feb. 1780, a plan for the better security of the independence of parliament and the economical reformation of the civil and other establishments.” Dodsley, 1780, 3d edition. The part from which the following extracts are made is contained in pages from 62 to 68 inclusive.

[† ]Page 63.

[* ]This was in March 1810.

[† ]After all, it was not by the “excellent” Lord Somers that this profundity of policy was, or, considering the side taken by him, could consistently have been displayed. It was to another “excellent” law-lord, though not noble lord, viz. the Lord Chief-Justice Holt, that the glory of it should have been ascribed.

“Rewards and punishments,” says he “are the supporters of all governments:—and for that reason it is that there ought to be a power in all governments to reward persons that deserve well:”a —proof sufficient to the excellent Lord Chief-Justice that it was no more than right and fitting, that it should always be, and so long as anything was left, remain in the King’s power, to give away, to anybody he pleased, whatsoever part of the people’s money he could contrive to lay his hands on.

“But it is to be objected,” says the excellent Lord Chief-Justice, “that the power in the King of alienating his revenues may be a prejudice to his people, to whom he must recur continually for supplies.” But to this objection, the excellent Chief-Justice had his answer ready:—“I answer,” says he, “that the law has not such dishonourable thoughts of the King, as to imagine he will do anything amiss to his people in those things in which he has power so to do.” Reason sufficient with the excellent Chief-Justice to trust the King thus in the lump, with the arbitrary and uncontrouled disposal of men’s properties;—reason not less sufficient might it have been, for trusting the same royal person, on the same terms, with their liberties and their lives. This was Whig common law. What more could a King have had or wished for, from Tory common law?

This theory, then, which to the views of our orator being so convenient, was in the judgment of the orator so “excellent:”—this theory was the theory—not of the excellent Lord Keeper, but of the excellent Lord Chief-Justice. Not that by this mistake of John for Thomas any very material injustice was done to the excellent Lord Keeper; for, in this instance, if anything was wanting in theory (not that any such deficiency appears) it was made up in practice.

To the profits of the office—those profits, for an eventual supplement to which even Lord Eldon required, or at least obtained, not more than a floating £4000 a-year—these profits not being sufficient for “making reward the origin of that family;” for affording to it a sufficiently broad “foundation of wealth as well as of honours,”—a pension for life of £4000 a-year was added: £4000 a-year, then equal at least to £12,000 a-year now. This, as not being in fee, being still insufficient, an estate,b which was and is in fee, was added: an estate which, according to his own admission and valuation made for the purpose, was producing at that time no more than a poor £2100 a-year, if the statement thus given in general terms by the learned and noble grantee for the purpose of his defence against an impeachment, is to be taken for correct: how much at present, is best known to some noble or not noble proprietor or other, related or not related, into whose hands it has passed.

But this £4000 a-year, and this £2100 a-year, and this £12,000 a-year, more or less, these et cæteras, were they, any of them, ever begged for by the excellent lord? Oh no: so he himself expressly assures us:—begged for, no more than the tellership was begged for by Mr. Yorke. These are of the number of those gracious designs, which, till the very moment of their taking effect, are never known of. While the eyes of the right honourable person are, as usual, fixed on heaven, the grant is slipped into his pocket, and when, putting in his hand by accident, he feels it there, his astonishment is not inferior to his gratitude.a

Note, that for no such expense as this, in so rare an article as wisdom, was there any the smallest need. In the time of Charles the Second (the Bank of England not as yet born or thought of) money to the amount of “above a million,” (a vast sum in those days) part their own, part that of their customers, having been lent to the King by a set of bankers, was by him, the said King, converted to his own use: in court English, “the Exchequer was shut up.”

In a succeeding reign, viz. that of King William, the question was, whether there was power in the crown, sufficient for applying a particular branch of its revenues in part restitution of the profit of this robbery. Yes, says this Lord Chief-Justice: for the branch in question (a new one—a portion of the excise) was given to the King in exchange for an old branch, viz. the branch called “wards and liveries.” Whoever has an estate in fee, may alienate it: in the “wards and liveries” the King had an estate in fee!—the excise was by act of Parliament given to him in lieu of those “wards and liveries:” and what is more, by the express words of the act, he was and is empowered to alienate it. This, supposing the construction put upon the act not inconsistent with the words of it, might, one should have thought, have sufficed for argument. But this would not have sufficed to show the learned lord’s acquaintance as above with the depths of policy: nor yet the “honourable thoughts” entertained of the King by the law:—and so, ex abundantiâ, the sage reasons that have been seen were added.

Whatsoever money the King could contrive to lay his hands upon, that the virtuous Whig Chief-Justice was content to see him waste. Why? For this plain reason: because “the law has not”—(i. e. he, his predecessors and colleagues, had not) any such dishonourable thoughts of the King “as to imagine he will do anything amiss to his people in those things in which he has power so to do.”

And what was the incident that called forth their effusion of faith and confidence? It was that of a king having robbed his subjects: robbed them of so much money—and for what? to hire men with, for robbing in conjunction with their enemiesa —for robbing and murdering their allies.b

Now, therefore, in my humble conception of the matter—whosoever it was that went thus far, whether it was the excellent Lord-keeper, whether it was the virtuous and intrepid Whig Chief-Justice went so far, it is no very easy matter to imagine how the learned colleagues of the Chief-Justice, or any of them, should (as Edmund Burke says they did) “go further:” and that for any imaginable set of existing circumstances, for any imaginable purpose of accommodation, convenience, reward of merit, reward of eminent services, and so forth—not to speak of reasonable, useful, and honest purposes:—it went far enough of all conscience.

Of these “honourable thoughts” one effect was to reduce to such a state of debility the learned thinker’s learned imagination, as to disable it from representing to him as possible, a state of things which his memory, if consulted upon the occasion, could not but have represented to him as realized, and that no more than seven years before: that state of things expressed—the half of it by the lawyer’s word abdication, the whole of it by the people’s word revolution, but for which (I mean the revolution,) his master could not have been a King, nor himself a Lord Chief-Justice. This master of his was now King: and now, whatsoever power the King has, is become incapable of being used amiss; misuse being in such hands either the same thing as use, or (what comes to the same thing) converted into use.

This is the way the sort of a thing called common law is made. Not content with exercising the power which he has, nothing will serve a man but he must display the wisdom which he has not: he bewilders himself and raves: and his ravings as often as it happens to them to suit the interest or the humour of those that come after him, these ravings of his become law.

Principles and practice together, nothing could be better matched: practice found by the excellent Lord-Keeper—principles by the excellent Lord Chief-Justice.

Note, that while lawyers as well as favourites were thus fattening (for the reign of William, though a reign of salvation for England and for Europe, was a reign of waste and favouritism,) the State, for want of common necessaries, was continually on the brink of ruin: expense unprecedented, ways and means scanty, deficiencies abundant, losses distressing, credit at death’s door.

[* ]Burke. p. 62, in the paragraph immediately preceding the one above quoted:—“I know, too, that it will be demanded of me how it comes, that since I admit these offices” (sinecures) “to be no better than pensions, I chose, after the principle of law had been satisfied,” (meaning the principle, with how little propriety soever it can be termed a principle of law, the principle of policy and humanity, that forbids the abolition of them, though it be by the legislature, to the prejudice of existing rights of property, i. e. without adequate compensation) “I chose to retain them at all.” This being the question, now, reader, whether you have, or have not, read Part I. of this Tract, Chapter III. On Sinecures,a be pleased to observe the answer—“To this, Sir, I answer, that conceiving it to be a fundamental part of the constitution of this country, and of the reason of state in every country, that there must be means of rewarding public service, these means will be incomplete, and indeed wholly insufficient for that purpose, if there should be no further reward for that service than the daily wages it receives during the pleasure of the Crown.”

Thus far Edmund Burke: and thus far, and without inverted commas, or any other token of adoption, the existing Committee on Finance, (3d Report, p. 126,) substituting only for the words—“To this, Sir, I answer, that conceiving” the words “at the same time regarding.”

Here we see what, according to the logic of the rhetorician, constitutesa sufficient reason why the quantity of annual emolument in question should not be put into the shape of pension, but be continued in the shape of sinecure. And this is the flourish which, with the question between sinecures and pensions before their eyes, the committee copy: and though like the orator in the way of concession, exhibit not the less in the character of a “fundamental part of the constitution of this country.”

This principle consists in the habit, which under common law is the same thing as the power, of creating offices, with fees annexed to the same, and receivable by the officers successively invested with the same: of creating these fee-gathering offices, or, what comes to the same thing, annexing more and more fees to offices of this sort already created; fees that, as taxes, are exacted by the sole authority of some official person or persons, without allowance, special or general, from the representatives of the people in parliament.

This principle may be seen flourishing to this day, and with unabated vigour; for so long as the word tax is not mentioned, and instead of a contribution to a tax, the money levied is called a fee, and instead of the pocket of the public, the pocket it goes into is that of the imposer, and the assembly in the composition of which the people have some share, have no share in the imposition of it, nothing can exceed the acquiescence and complacency with which the good people of this country, as well as its parliament, are content to view it; especially when the tax thus imposed, is imposed upon that class of the community which is composed of the distressed members of all the other classes, and by so fast a friend to the rights of the people and to liberty, and to juries, and to the laws which forbid the levying money upon the people without consent of parliament, and to the magna charta which forbids the delaying of justice, and to the magna charta which forbids the sale of justice, and to the magna charta which forbids the denial of justice (whether by putting a price upon it beyond what they have to give, or otherwise) as the noble Ex-Chancellor, then Chancellor, legislating with the advice and consent of his right honourable subordinate, whose experience in equity business found such a contrast to that of the common-law-learned novice.† —See note †, next page.

Thus, from this Table, it appears, that of the four great Westminster-Hall Courts, there is not one in which the principle of taking the property of the distressed to make fortunes for court favourites, or, in the orator’s language, to “make it the origin of families, and the foundation of wealth and honours,” was not applied,—not one in which the application of it is not to this very day continued. A natural question here is—how in so great a length of time it comes to have made so small a progress? The answer is—that in the hands of the King, this mine having, soon after its discovery, been worked too openly and too rapidly, the consequence was, that the thus working of it received the check we hear so much of, and care so little about; and that from that time it was given up to those useful servants of his, whose professional dexterity was now become necessary to enable a man, when working under the Rose, to make a living profit out of it.

The earliest instance, of which any effect or memory is now remaining is, as the table shows, of as early a date as the reign of Henry the Second. Soon after him came King John, whom, besides his Magna Charta, so many details that have come down to us on record prove to have kept an open shop for the sale of the commodity which went by the name of justice, and in which the prices were not then in any sort, as at present they are in some sort, fixed. In King John’s reign comes this Magna Charta, and thenceforward, so far as concerned the sort of “public service” rendered by the Gavestons, the Spencers, and the Mortimers, this source of “permanent reward to public service” was nearly dried up; and for what few drops have here and there been collected by the successors of those accomplished gentlemen, they have been forced to enter into a sort of partnership with the gentlemen of the long robe.

Had it not been for the obstruction just mentioned, the present amount of that part of the produce of the stamp duties which is levied upon those who are distressed, whether by or for want of the commodity sold under the name of justice, would have composed but a part, and that a small one, of that part of public money which would have followed the fate of the crown lands, under and by virtue of the principle thus maintained by Holt, and fattened upon by Somers.—

I say, but a small part: for had the mine continued in individual hands, with the power and capital of the King openly employed, as under King John, in backing them, it would have continued to be worked with that zeal and consequent success, by which labour in private is, so much to its advantage, distinguished from labour on public account: and supposing any remnants of it, as of the crown lands, to be still remaining, the Percevals of the present day, instead of being occupied in the augmentation of those taxes on distress for the benefit of rich and poor together, defending inch by inch, and not always without loss, those parts of the produce which stand appropriated to the enrichment of the rich, would have been exclusively employed in the more agreeable occupation of giving additional breadth to “the foundation of wealth as well as honours” upon the plan here sketched out by Edmund Burke, and with as little reserve or mystery as was found necessary by King John, in the halcyon part of his days.

In the court of Chancery there exists a set of men called from their number the sixty clerks, whose situation is something compounded of or intermediate between, that of an officer of the court, and that of an attorney.

They are officers of the court, inasmuch as, through an intermediate nomination, they are nominated by a subordinate judge of the court (the Master of the Rolls,) and inasmuch as in every cause the parties on each side are obliged to employ one or other of them: they are attorneys, inasmuch as they are agents of the parties, and, on each side of a cause, the party or parties, through the medium of their respective attorneys (called here solicitors,) have their choice which of them to employ.

In the same court there exists another set of men called the six clerks, whose situation seems to be purely that of an officer of the court. To each of these six clerks belongs the nomination of ten out of the sixty clerks; which nominations he either sells or gives, whichever mode of disposition happens in each instance to be most for his advantage.a

Of these six clerks, the nomination belongs to the Master of the Rolls for the time being: which nomination, like the Lord Chancellor and Chief Justices of the King’s Bench, and Common Pleas, he in like manner either sells or gives, according to the mode of disposition that happens to be most to his advantage.

The greater the annual value of a sixty clerk’s place, the greater the value of the place of a six clerk who has the gift or sale of it. The greater the value of a six clerk’s place, the greater the emolument of the place of the Master of the Rolls who has the gift or sale of it.

By order of the Court of Chancery, dated 26th February 1807, signed by the Lord Chancellor, Lord Erskine, and by the Master of the Rolls, Sir William Grant, by whose advice and assistance he states himself as acting therein, a new “schedule of fees” is established and authorized to be taken by each one of those sixty clerks:—fees described in so many articles, 43 in number, and the amount avowedly increased in the instance of each article.

A prior instance had been found, in which, in like manner, viz. by a law enacted in the same way by the joint authority of the two judges, bearing the same offices, money had in this way, about the middle of last century, been levied upon those children of distress called suitors without consent of parliament. Coupled with power, sinister interest begets precedent, and precedent begets, or rather precedent is, law.

Of the two modes in which, without consent or privity of parliament, law is made by the sole authority of the King’s nominees in the character of judges, this (it must however be confessed) is beyond comparison the least mischievous; it not involving, as the other does, the attribute of uncognoscibility, and the tyranny of an ex post facto law.