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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.

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.

[* ]See the several works which were included under that title, as printed in the present collection.