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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.

*∗*The following Note was prefixed to the article by the Editor of the Westminster Review:—

III.

Marriage Settlement Deed.

Author’s Draught.(No Topics given.)

“A Marriage Settlement of Real Estate, under the Proposed Code.1

“This Deed made the First day of April 1926, Between Alfred Allen ofNA of the one part, and Clara Campbell ofNA of the other part, Witnesseth that in consideration of a Marriage agreed upon and about to be solemnized between the said A. Allen, and C. Campbell, He the said A. Allen, doth convey, charge, and settle, in the event of such marriage taking effect, and from and after the same, all and singular the Messuages, Cottages, Farms, and Lands, situate in the parish of Waring, in the county of Lincoln, comprised in the Schedule, to these presents, and therein particularly set forth by the names, quantities, qualities, situations, occupiers, and other circumstances necessary for the distinction thereof respectively, and all other, if any, the Messuages and Lands of or belonging to him the said A. Allen in the parish of Waring aforesaid, with the appurtenances thereto respectively belonging, and also all the impropriate tithes or tenths of corn, grain, and hay, and other great tithes or tenths whatsoever, and all moduses and other compositions for tithes or tenths yearly arising and payable from or in respect of all and singular the aforesaid lands and premises; to the person and persons respectively. With the several yearly and principal sums, and for the purposes following, viz. the said premises to stand and he charged with the clear yearly sum of two hundred pounds sterling to be paid to the said Clara Campbell, for her exclusive and inalienable enjoyment during the said intended intermarriage, and subject thereto, the premises to go to the said A. Allen, during his life, without impeachment of waste, and after his death, the said premises to stand charged with the clear yearly sum of five hundred pounds sterling, to be paid to the said Clara Campbell during her life in lieu of her legal interest in any lands to which the said A. Allen shall die entitled, and subject thereto, the said premises to stand and be charged with the sum of five thousand pounds as a provision for such child and children of the said intended marriage (except an eldest or only son, for the time being, entitled either absolutely or presumptively under the limitations next ensuing) and to vest and become payable at and in such time, or times and manner as hereinafter mentioned; and subject as aforesaid the said premises to go To such son of the said A. Allen, by the said C. Campbell, as shall first or alone attain the age of twenty-one years. or dying under that age shall leave issue of his body living or conceired at his death, and if there shall be no such son, then to all and every the daughter or daughters of the said A. Allen, by the said C. Campbell, who shall attain the age of twenty-one years, or dying under that age shall leave issue of her or their body or respective bodies, living at her or their death or respective deaths, in equal shares if more than one, and if there be but one such daughter, then the whole of the premises to that daughter. And if there shall be no child of the said intended marriage, who shall become absolutely entitled to the premises under the limitations aforesaid, then the said premises to go and revert to the said A. Allen. And as to the said sum of five thousand pounds hereinbefore charged for the benefit of such child or children of the said intended marriage (not being an eldest or only son for the time being entitled either absolutely or presumptively as aforesaid) as hereinafter mentioned. It is hereby declared that the same sum shall vest in and become payable to such child or children (except as aforesaid2 ,) or else in any one or more exclusively of the other or others of them at such age or time or respective ages or times, in such manner and with such dispositions over, to, or for the benefit of the other or others of the same children or any of them, as the said A. Allen shall at any time or times after the said intended marriage direct or appoint, [         ] And for want of such direction or appointment, or so far as the same, if incomplete, may not extend, the said charge, or the unappointed part thereof, shall vest in and go to all and every the children and child of the said intended marriage (other than an eldest or only son for the time being entitled as aforesaid) who shall attain the age of twenty-one years, or in the instance of a daughter or daughters shall marry under it, to be equally divided between such children if more than one, and if there shall be but one such child, then the whole of the said unappointed charge to vest in and go to such one child, and the same charge to be paid to such children or child respectively, at the same ages, or times, or age or time, if the same shall happen after the death of the said A. Allen. But if the same shall happen in his lifetime, then immediately after his death, provided always that after the death of the said A. Allen, and in case he shall have made no direction to the contrary, it shall be lawful for the guardian or guardians of any infant child or children of the said intended marriage presumptively entitled to a portion or portions under the said charge, to levy and raise any part or parts not exceeding in the whole for any such child, a moiety of such his, her, or their then eventful portion or portions, although the same shall not then have become vested, and to apply the money so to be raised for the preferment, advancement, or benefit of such child or children in such manner as such guardian or guardians shall in their or his discretion think fit, provided also that after the death of the said A. Allen, and in case he shall have made no direction to the contrary, it shall be lawful for any such guardian or guardians as aforesaid, to levy and raise3and apply for the maintenance and education of such child or children for the time being of the said intended marriage, as shall be presumptively entitled to a portion or portions under the said charge, in the mean time and until such his, her, or their eventual portion or portions shall become vested, such yearly sum or sums of money not exceeding what the interest of the same portion or portions would amount to at the rate of four pounds per cent. per annum were he, she, or they then absolutely entitled thereto.”

I.

Deed of Sale. AllentoButler,anno 1925.

Reviewer’s Draught,*(with Topics.)

• I. Parties Described.
• No. 1. Seller’s name.aAndrew Allen.
• 2. Seller’s conditions.bEsquire.
• 3. Seller’s habitation.c County, Shropshire; Parish, Weston; Spot, Allen Hall.
• 4. Purchaser’s name. Benedict Butler.
• 5. Purchaser’s condition. Butcher.
• 6. Purchaser’s habitation. County, Shropshire; Parish, Weston; Spot, Fore [Editor: illegible word]

• II. Subject-Matter Described.
• 7. Subject-matter of the sale—its species.dA Farm.
• 8. Subject-matter of the sale—its individual description. See Paper of Particulars hereto annext, marked A, and signed by the parties.

• III. Equivalent given for the Subject-Matter.
• 9. Purchase money.eOne thousand pounds

• IV. Time, Place, and Tokens of Agreement
• 10. Seller’s name in his hand-writing,f in token of agreement. Andrew Allen.
• 11. Dayg on which seller’s name was written. April first 1925.
• 12. Placeh in which seller’s name was written. Allen Hall, near Weston, Shropshire.
• 13. Purchaser’s name in his hand-writing, in token of agreement.iBenedict Butler.
• 14. Day on which purchaser’s name was written. April first 1925.
• 15. Place in which purchaser’s name was written. Weston, Shropshire.

II.

Deed of Mortgage.

AllentoButler,anno 1927.

Reviewer’s Draught(with Topics.)

• I.
• Parties Described.
• N 1. Pledger’s name. Andrew Allen.
• 2. Pledger’s condition. Esquire.
• 3. Pledger’s habitation. County, Shropshire; Parish, Weston; Spot, Allen Hall.
• 4. Lender’s name. Benedict Butler.
• 5. Lender’s condition. Butcher.
• 6. Lender’s habitation. County, Shropshire; Parish. Weston.

• II.
• Subject-matter Described.
• 7. Subject-matter of pledge—its species. A Farm.
• 8. Subject-matter of pledge—its individual description. See Paper of Particulars hereto annext, marked A, and signed by the parties.

• III.
• Sum Lent.
• 9. Sum of money lent. Five hundred pounds.
• 10. Species of money in which paid. Promissory notes of the Bank of Scotland.

• IV.
• Rate of Interest.
• No. 11. Rate of interest. Four pounds per year.

• V.
• Times for Payment.
• 12. Day, for re-payment of principal, unless respited, April first 1929.
• 13. Days, for half-yearly payments of interest. October first 1928; April first, 1929: so on, till repayment of principal.

• VI.
• Time, Place, and Tokens of Agreement.
• 14. Pledger’s name in his hand-writing, in token of agreement, and receipt of the money. Andrew Allen.
• 15. Day, on which pledger’s name was written. April first 1927.
• 16. Place, in which pledger’s name was written. Pledger’s House, Allen Hall, Weston, aforesaid.
• 17. Lender’s name in his hand-writing, in token of agreement. Benedict Butler.
• 18. Day, on which lender’s name was written. April first 1927.
• 19. Place, in which lender’s name was written. Pledger’s House, Allen Hall, Weston, aforesaid.

III.

Marriage Settlement Deed, AllenwithCampbell,anno 1929.

Reviewer’s Draft(with Topics.)

• I.
• Parties Described.
• No. 1. Intended husband’s name. Andrew Allen.
• 2. Intended husband’s condition. Esquire.
• 3. Intended husband’s habitation. County, Shropshire; Parish, Weston; Spot, Allen Hall.
• 4. Intended wife’s name. Clara Campbell.
• 5. Intended wife’s condition. Spinster.
• 6. Intended wife’s habitation. County, Shropshire, Parish, Weston; Spot, Cross Street.

• II.
• Subject-matter Described.
• 7. Subject-matter of Settlement—its species. Farms and Tithes.
• 8. Subject-matter of Settlement—its individual description. See Paper of Particulars hereto annexed, marked A, and signed by the parties.

• III.
• Provision for intended Wife’s Interest during the Marriage.
• 9. During the Marriage, pin-money.1Two Hundred Pounds per year.
• 10. This provision is a rent charge, charged2 upon the estate.
• 11. This rent charge is unalienable.3

• IV.
• Provision for intended Husband during his Life.
• 12. Subject to this charge, the estate remains to Andrew Allen during his life.
• 13. He is not impeachable for waste.4

• V.
• Provision for intended Wife in case of Widowhood.
• 14. On the death of intended husband, intended wife is to receive during life a jointure of Five Hundred Pounds per year.
• 15. This jointure is unalienable.
• 16. It is to be paid clear of all charges.
• 17. In consideration of it, she hereby gives up whatever provision she might otherwise have under the Code.5

• VI.
• Promsion as to Descendants who, subject to this jointure, are to become Heirs to the Estate: say the Estate-takers.
• Cases in which the Estate descends undivided.
• No. 18. Case 1. At the father’s death, a son alive: no nephew or niece of his, by any elder brother of his, alive: sisters or younger brothers of his alive or not in any number. To this son the estate passes undivided.
• 19. Case 2. At the father’s death, a daughter alive: no brother or sister of her’s alive, nor any nephew or niece of her’s, by any brother or sister of her’s. To this daughter the estate passes undivided.
• 20. Case 3. A son alive, daughters or younger sons alive or not: nephews or nieces of the son by an elder brother of his, alive in any number. To the eldest of these nephews,—or, if there be but one, to the only nephew; or, if no nephew, to the niece, if but one, the estate passes undivided.
• Cases in which the Estate descends divided.
• 21. Case 4. No son alive: nor son, or daughter, by any son. Daughters, in any number more than one, alive. To these daughters tho estate passes in equal shares.
• 22. Case 5. No son alive: a daughter or daughters alive: by a deceased sister of theirs, one niece of theirs alive. To the daughter or these daughters, with their niece, the estate passes in equal shares.
• 23. Case 6. No son alive: a daughter or daughters alive: by a deceased sister of theirs, nieces two or more alive. Among the daughters and their nieces, the estate passes divided. But the shares of the daughters are, as above, equal as between each other: so are those of the nieces. But the nieces, in whatever number by one sister, take among them no other share than that which would have been their sister’s had she been alive: so, if daughters more than one are all deceased, each leaving a daughter or daughters.
• 24. Case 7. &c. Upon the same plan, the estate will be divided through any number of generations: the share of each mother passing entire to her daughter, if but one; in equal shares among her daughters, if more than one: whatever be the number of her daughters, to her son, if but one; if sons, more than one, to the eldest.

• VII.
• Money Provision, for Children not taking part in the Estate: say the Money-takers. Apportioner, the father. In this provision, no child, having part in the Estate, has any part. Having the whole includes the having a part.
• 25. Sum total at his disposal, Five Thousand Pounds, charged on the estate, as per No. 10.
• 26. Share of each, whatsoever he appoints: the whole, any part, or no part.*
• 27. By deed, he may bind himself to any such child or children, or to any person on behalf of any such child or children, to charge the estate with any sum not exceeding the total charge, as per No. 25.
• 28. So likewise by last will, in so far as is consistent with what he has done by deed.
• 29. No money, advanced, in his lifetime, to, or for the benefit of, any such child, whether in the way of income, or in the way of capital,—will, unless by deed expressly so declared to be, be understood to be designed to be deducted out of the apportionment made as per Nos. 26, 27, 28.
• 30. No charge, endeavoured to be made by him on the estate, will have effect till after this settlement charge, as per No. 25, has been carried into effect.
• 31. To the receipt of any share of the portion-money, he may annex all such conditions not prohibited by law, as he thinks fit.
• 32.Maintenance. For this purpose, upon the principal of any such child’s portion he may pay, or direct to be paid,—to such child, or to any person on account of, such child,—interest at any rate mentioned by him, for any length of time up to full age or marriage; at which time the principal, or what remains of it, will be to be paid.
• 33. For any payment, as per Nos. 26 or 32, he may assign any time he pleases.
• 34. Of the portion-money obtained under this settlement,—whatsoever part, if any remains undisposed of by the father, is to be divided among the children, and the descendants, if any, of the children, in equal portions, after the several manners mentioned in Nos. 21, 22, 23, 24.

• VIII.
• Subject to father’s direction, powers to Guardian, of children not having part in the estate.
• 35. Out of the principal, he may employ, for the benefit of any such child in the way of advancement, any sum not exceeding the half of his or her portion.
• 36. So yearly for maintenance (education included) any sum not exceeding interest at four per cent. upon the principal.
• 37. On the death of any such child before full age or marriage,—his or her portion, whatsoever part of it remains not disposed of, as per Nos. 35, 36, is to be paid to the surviving child, if one; to the surviving children, in equal portions, if more than one. Hence, before arrival at full age or marriage, the portion of any child may, by his or her own death, have been extinguished altogether, or by the death of others, augmented. But, in the allotments made of advancement-money, as per No. 35, neither of those contingencies is to be taken into account. The sum employable at all times for the benefit of each child, in both ways, is the whole, or the remainder, of the sum belonging to him or her on the day of the father’s decease.6
• 38. For the times of payment in the several cases, and the mode of giving execution and effect to the several provisions, see the Code.
• 39. If, at intended husband’s decease there be no child, or descendant of any child, alive,—the estate, subject to widow’s jointure, as per No. 14, is at his disposal, and failing such disposal, passes to his heirs.7
• 40. Intended husband’s name, in his handwriting, in token of agreement. Andrew Allen.
• 41. Day, on which intended husband’s name was written. May first, 1929.
• 42. Place, in which intended husband’s name was written. Weston, Shropshire.
• 43. Intended wife’s name, in her handwriting, in token of agreement. Clara Campbell.
• 44. Day, on which intended wife’s name was written. May first, 1929.
• 45. Place, in which intended wife’s name was written, Weston, Shropshire.8

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 6th June 1828, to inquire into the Law of England respecting Real Property, and first printed in the Appendix to their Third Report, ordered by the House of Commons to be printed, 24th May 1832.

Gentlemen,—1. By your circular, dated the 6th and 8th of August 1829, and addressed to various persons, of whom 1 then was, and now continue to be, one, you were pleased to call for suggestions on the subject of registration, as applied to men’s titles to the subject-matters of the sort of property termed in English law real property. The present paper is written and presented to you in obedience to that call.

2. By your letter of the 18th of August 1829, addressed to myself alone, in answer to mine to you of the 15th of that same month, you were pleased to honour me with an assurance in these words: “They” (meaning you the said commissioners) “have no hesitation in saying, that they should think it their duty to include whatever may proceed from him” (meaning myself) “in any appendix to the report which they may hereafter make to his Majesty.” On this assurance the present communication places its reliance.

3. The observations here submitted have for their immediate, appropriate, and by you expressly authorized subject-matter, the plan proposed for the institution in question by yourselves. But, by this as by any other proposal which is transmitted to any person for examination, reference, if not expressed at any rate implied, is made, or authorized to be made, to some determinate set of notions considered as constituting a standard of propriety,—in a word, to some principle or set of principles. I shall therefore, in so far as my own conception of my competence extends, take the preliminary liberty of submitting to you the leading features of the sort of plan which, to myself, presents itself as most eligible, prefaced by a short exposition of the principles from which they emanated, and to which they look for their support.

4. Superior utility and novelty. In these I behold two qualities, the union of which is indispensably necessary to constitute a sufficient warrant for any such communication as that in question. Yes, novelty: for in the idea of absence of novelty is included absence of usefulness, presence of uselessness. So far is novelty, when taken by itself, and not alleged to have inaptitude for its accompaniment—so far, I say, is it from constituting any reasonable ground of objection to a plan for this or any other purpose.

5. If this be true, what shall we say—what shall we think—of those by whom, without controverting the utility of a proposed plan, be it what it may, the alleged novelty is held up to view in the character of a ground for the rejection of it—of those, in a word, by whom the word innovation is employed as a token of disapprobation and an instrument of censure?

6. As to my own competence, I consider it, and accordingly speak of it, as having certain defined and precise limits, and on the outside of those limits lies all information as to all such matters of fact the knowledge of which is not capable of being possessed by an individual not actually engaged in the practice of the profession, which has for the subject-matter of its exercise the subject-matter of the commission in virtue of which you have been pleased to make this call upon me; whatsoever, therefore, I shall venture to propose, you will understand as calling upon you for amendment, as far as requisite; amendment, in every one of its three shapes—subtraction, addition, and substitution.

7. On this occasion, the part which I take in the business will be seen to confine itself to the giving a comparatively small number of suggestions, by the adoption of which, if, and in so far as, my view of the matter is correct, it would be put into a new, and that the most appropriate conceivable form.

8. In and by various parts of my publications, I stand pledged to the public never to propose or advocate—never to oppose and combat—any law or institution actually established, or proposed to be established, without attaching to it an accompaniment, composed of reasons; meaning by reasons, considerations having for their object the showing in what manner, immediately, or through the medium of a chain of any length, of causes and effects, the arrangement proposed presents itself as likely to give a net increase to the happiness of the person or persons in question; that is to say, to the balance on the side of pleasure, after deduction made of the quantity of pain experienced during the period in question. As on all other occasions, so on this, by this engagement I regard myself as bound.

9. In one of those same publications, in particular, the subject-matter of consideration comprehends the entire aggregate of all the several sorts of functionaries of which the official establishment of any country is, or in the nature of things can be, composed; those here in question are consequently comprised; and throughout that work may be seen a specimen of the above-mentioned accompaniment, namely, in the instance of every article which has for a heading the word ratiocinative. The work I am alluding to is that which has for its title “Constitutional Code; for the use of all Nations and all Governments professing Liberal Opinions.”

10. So much as to my plan. Now, gentlemen, as to yours, considered in like manner with reference to reasons. Your plan is before the public; with all due deference, what I have to propose is a somewhat different one. Your reports on the subject lie before me. I look in them for reasons: I find in them no such thing. A bill, moved for in pursuance of those same reports, has been before the public. I look in it for reasons: neither in that same proposed law do I find any such thing. As in the one instrument, so in the other, stat pro ratione voluntas. As for me,—my will not having any chance for the being clothed and armed with legal power,—the power of reason, if I can find any on my side, is my sole resource: stat pro voluntate ratio.

11. Is it even unprecedented, this same accompaniment? Look to Westminster Hall. In Westminster Hall, when in a judicatory, a judge, and in particular a Chief-Justice, bears his part in the making of the sort of decision called a judgment, and, for a ground of that same judgment, delivers his opinion; in this case, if the importance of the matter presents itself to him as calling for any further support, he fails not to deliver his reasons.

12. Again. When, from the judgment of one judicatory, a party makes his appeal to another judicatory; in this case, also, a man submits to the superior authority in question his reasons.

13. Now then, gentlemen,—in your quality of learned gentlemen, let me ask you—if in the business of judicature a support of this kind is needful, how much stronger is not the need of it that has place in the business of legislation?—that business, to the importance of which, the extent of the consequences considered, the importance of the business of judicature is but as number one to infinity.

14. Not altogether insensible to this demand has the Legislature of this country been even in its hitherto corrupted state. At the commencement of a statute, something in the guise of reason has been customarily and regularly served out. Served out! Yes; but of what sort? Of a sort such as a Bridoison in the drama of Figaro, or the Old Woman in the history of Little Red-Riding-hood, or a legislator in the land of Gotham, might have been proud of.

15. “Whereas it is expedient”—With these four words commences the train of surplusage, of which, under Matchless Constitution, the greatest part of an act of Parliament is so regularly composed: of these words is composed the whole of that portion of matter in which the draughtsman places his trust, in the character of a justification for the exercise made by him of that authority of which he is the organ, when laying about him and scattering broad-cast the seeds of good and evil, with so little expense in the shape of thought.

16. Now then as to the particular bill above alluded to. In that same bill, on looking into it for reasons, though I cannot find any such thing, yet what I do find is the just-named something which seems intended to serve instead of reasons. It is composed of those same four words—“Whereas it is expedient:” it is that same Vox et præterea nihil. I speak thus freely; because, if in that same dictum there be anything of fatuity, or if you please, of silliness (and in my view of the matter, that there is, in abundance,) you, gentlemen, are not, any of you, chargeable with it. How little soever in accordance with reason, this phrase, it cannot be denied, is most perfectly in accordance with precedent: without it, this or that high functionary, whose name, official and personal, sooner or later shall and will be made publicly known,—inasmuch as his remuneration has been made to rise, in proportion as the rule of action has, by its immensity, and obscurity, and richness in surplusage, been made to increase in inaptitude for its professed purpose,—this self-authorized and self-paid comptroller of the authority of the King in Parliament, this secret imposer of taxes for his own benefit, might find the bill incomplete, and as such find himself obliged to throw it overboard.

17. Houses, honourable and right honourable, have each of them its standing orders. They have in common this one standing reason. It is as good for one thing as another: for one proposed enactment as for another. In this its aptitude, however, there is nothing of peculiarity: nothing but what might be shared with it by any other four words, drawn, in the way of lottery, out of a dictionary.

18. Such is the sort of embellishment belonging to a bill—meaning a future contingent statute. Of a piece with it—in exact keeping with it—are, in a speech, the two locutions—“contrary to every principle of justice,” and “contrary to the first principles of justice,” bearing upon the face of them the marks of the above-mentioned country of Gotham, as the country from which these commodities were, all of them, imported.

19. But, of this last-mentioned embellishment, the ground to which it is suited, and on which it is commonly embroidered, being, not a bill, but a speech, I find not any exemplification in the authoritative article of piece-goods I have been speaking of. Only, therefore, for elucidation,—or, if you please, for illustration,—not for justification, is the mention made which I have ventured thus to make of it.

20. Happily, a new order of things is at length born. Nonsense will not, for ever, sit on the throne of common sense.

21.Reasons, principles, ends, means, rules, maxims, axioms, positions, propositions. On the present occasion, had I to do that which, on some future occasion I may not impossibly have to do,—namely, in my address to you, to take for the subject-matter of it the whole of the field of real property,—in that case, in the character of principles, I might have to submit to your consideration no fewer than seven-and-twenty words, or sets of words, which, in the form of a tree, composed of a trunk with branches and sub-branches, called by logicians in former days the arbor porphyrum, lie at this moment before my view; and with them would come the whole cortége (as the French say) of the genera generalissima above-mentioned: for, wheresoever I tread, my wish and endeavour is to find, and if I do not find to make, my foundation sure. Happily for us all, on the present occasion, not more than two of these principles will it be necessary for me to trouble you with; with the addition of a small quantity of matter, under the head of reasons and that of ends and means: and a few preparatory propositions, which present themselves to my view, as being relevant, conclusive, and incontestable.

22. These principles are—1. The greatest happiness principle, or say, the happiness-maximizing principle; and, 2. The disappointment-minimizing, or say disappointment-preventing, or say non-disappointment-principle. Yes, verily, the disappointment-minimizing principle. Nay, good gentlemen, do not be horrified by it; for here, not only on sure ground do I tread, but, as you will see, on authoritative ground; on ground, which you will find yourselves estopped from denying to be authoritative.

23. As to my reasons, what I cannot but apprehend is, that by the mention thus and here made of them, may be called to the minds of some of you the image of the old steward in Addison’s drama of the Haunted House, who, after speaking of reasons and of many reasons, goes on to say, “at present I shall mention only seven:” but for this I must take my chance.

24. Now for my authority. Truly gratifying it is to me on this occasion, to find in accordance with this notion of mine about disappointment, the opinion, as proved by the practice, of a distinguished member of your own body. It preserves, in the completest manner, from the reproach cast by the word theoretical, this same disappointment-minimizing principle.

25. In the so admirably instructive and useful work of Mr. Tyrrell, intituled “Suggestions sent to the Commissioners appointed to inquire into the Laws of Real Property,” I have the satisfaction of seeing this same principle three several times referred to as the ground of the arrangements which he recommends.

I. In page 121—“The expense, uncertainty, and disappointment, which usually attend suits for long-forgotten claims, render them,” says he, “a source of more injury than benefit to the church.”

26. II. In page 239—“Tithes, under a descent,” says he, “can never be considered secure, until the right of the devisee has been barred; and a few cases of hardship to disappointed devisees are not,” continues he, “of so much importance as the advantage—the safe alienation of property.” Thus far Mr. Tyrrell.

27. And if such is the inferiority of the importance of these few cases of hardship to disappointed devisees, whence comes this same inferiority?—whence comes it (I ask) but from this, namely, that, in the cases in which by the result the alienation has been shown to be unsafe, disappointment has been produced by that same result, and that these cases having been more numerous than those others, the sum of the pain that has thereby been produced in these last-mentioned cases, is greater than that which has been produced in the first-mentioned cases?

28. III. Lastly, in page 312—speaking of of the wording of a certain devise (the particulars of which are not material to this purpose,) he gives as the reason of the construction (or, as a non-lawyer might say, the interpretation,) he recommends, this—namely, that “if no gift had been made to the owner of the property, the person to whom it was devised must” (he says) “have been disappointed;” meaning evidently that, on the supposition, that, if in the sort of case in question, the disposition made of the property in question by the judge, is that which he (Mr. Tyrrell) recommends,—on that supposition in the breast of the party in whose disfavour that same disposition operated either no such pain at all would be produced, or if any (pecuniary circumstances being supposed to be on both sides equal,) the pain would not be so great as in the contrary case.

29. I come now to speak of ends and means: ends, the attainment of which ought to be kept in view and aimed at, on the occasion of whatever arrangements come to be taken for the establishment of the proposed institution, and are accordingly aimed at, in the suggestions which here follow. These ends are distinguishable into two—namely, the primary and the secondary.

30. First, as to the primary end. The evil, against which a remedy is hereby endeavoured to be applied, consists in the unexpected loss of money or money’s worth: the primary end aimed at is—the prevention of this loss.

31. Then, as to the secondary end. On the occasion, and for the purpose, of the application of this remedy, a certain series of operations, or (as among lawyers the phrase is) a certain course of procedure is necessary: on which occasion, evil to a greater or less amount in the several shapes of delay, expense, and vexation, cannot but have place. In the remedy we behold a benefit; in this last-mentioned evil we behold a burthen, attached to that same benefit; and what remains, after subtraction of the amount of the burthen, will be the amount, or say clear value, of the benefit; and the institution having for its primary end the conferring on the individuals interested that same benefit; the minimization of this same burthen is that which it has for its secondary end.

32. Just so is it in the case where, instead of a register-office, the scene lies in a court of justice; the benefit sought is a remedy against wrong; and this is what that institution has for its primary end; the attached burthen consists here also of evil in these same several shapes of delay, expense, and vexation: and the minimization of the evil, in these its several shapes, has been considered and spoken of as that which the institution of a court of justice, with its course of procedure, has for its secondary end.

33. On examination made into the manner in which these two ends—the primary and the secondary—may most effectually be attained, namely, by the maximization of aptitude on the part of the matériel as well as the personnel (to borrow a phrase from the war department)—that is to say, the building or buildings, and its or their official inhabitants,—together with the minimization of the expense—my eyes have fixed upon seven distinguishable objects in the character of means, each of them, for the attainment of one or both of these two ends; and, within the field of each of these seven objects, means of a more particular nature, which, with reference to them, may be styled means of effectuation; and which I shall accordingly designate by such their proper name.

34.Objects and means of effectuation taken together, thinking that to this or that one of you, gentlemen, it may perhaps be matter of convenience to have them upon occasion visible, all of them, at one and the same glance, I have given expression to the tout ensemble of them on the same side of a leaf of paper, in and by a table, which will almost immediately present itself to your view.

35. Of the evil, the prevention of which constitutes the primary end, five different modifications may be distinguished, each liable to fall on a correspondent description or class of persons: the diversity in the description of these same modifications of the evil will be seen to have for its cause a correspondent diversity in the relative situations of the classes of persons who stand opposed to it.

36. In all five cases, the loss, with the suffering consequent upon it, has for its efficient cause the badness of the title to the subject-matter of property in question. In some one of these same cases, the suffering has for its immediate cause the actual loss of an immovable subject-matter of property or some interest therein; in others, loss in the shape of money; in others, again, that which the suffering has for its immediate cause, is that which may with more propriety be considered as non-acquisition of profit or say benefit, than positive loss or say burthen.

37. Here, then, in the aggregate, are so many cases of suffering, which, when regarded separately, may be thus described:

I. Case the first.—Sufferer, a person who is in possession or in fixt expectancy of a subject-matter of real property, or of an interest therein, the title to which, for want of some piece of evidence, some saving knowledge, which a registration office would have taken charge of and rendered accessible to all persons interested, turns out to be bad.

38. II. Case the second.—Sufferer, a person who, having paid money for the purchase of a subject-matter of real property, or of an interest therein, fails of receiving it; he who, in return for the money, has undertaken to cause him to receive it, finding himself rendered, by the badness of his title to it, unable so to do; say, in six words, a purchaser on a bad title.

39. III. Case the third.—Sufferer, a person who, having paid money on the security of a subject-matter of real property, or interest therein, in such sort that if the money, with the interest due upon it, fails of being put into his hands on or before a certain point of time, the thing itself, or money to be raised by the sale of it, as above, will be put into those same hands, is by that same cause prevented from so receiving it; say, in six words, a lender on a bad title.

40. IV. Case the fourth.—Sufferer, a would-be seller with a bad title; prevented from becoming actual seller of it by the badness of his title to it.

41. V. Case the fifth.—Sufferer, a would-be purchaser, if prevented from becoming actual purchaser by the badness of the would-be seller’s title.

In these two last cases, as well as in the three first, suffering has place; and that suffering has disappointment for its cause. But, in these same cases, the nature and the immediate cause of the evil are too diversified, miscellaneous, and uncertain, to admit of any more particular description here.

42. Now for the above-mentioned string of preparatory propositions.

I. The institution for the existence and organization of which you are occupied in making preparation, consists of a building, or set of buildings, to be employed in the character of a register-office, or set of register-offices, together with an official establishment for the carrying on the business by the performance of which the benefit contemplated is designed to be conferred on the several persons interested.

43. II. This benefit consists in the preserving from deperition, and keeping in a state of accessibility to all persons lawfully interested, a certain class of written instruments, or say documents, which have been framed for the purpose of affording, upon occasion, sufficient evidence of men’s right and title to property of a certain description, distinguished by the name of real property.

44. III. Of this benefit, the principal, if not the only intrinsically valuable, but at any rate abundantly sufficient, use, consists in the preserving the several proprietors and other persons respectively interested, from the pain of disappointment; namely, that pain, or say that uneasiness, which a man experiences when, without his consent, any thing valuable which he has been in the habit of looking to as his own, ceases so to be looked upon by him; which said uneasiness has not place in the mind of any person who has not been in that same habit or state of mind in relation to that same thing. “Blessed is he that expecteth not, for he shall not be disappointed,” says an addition proposed to be made to the beatitudes, if I misrecollect not, by Dean Swift.

45. IV. Of these two parts of the institution, neither can be brought into or kept in existence and applied to use, without a quantity, more or less considerable of expense in the shape of money.

46. V. This money is not obtainable but by means of taxes.

47. VI. In so far as taxes are imposed, money is taken from persons without their consent; and thereby, in their minds, a quantity, more or less considerable, of pain produced.

48. VII. As to aptitude. The more complete the relative aptitude of the several persons so employed, relation had to their respective official operations, the better. So likewise of the dead stock.

49. VIII. To come back to the expense, that that and aptitude may be considered in conjunction. The less the expense employed in the purchase of their respective services, so long as that aptitude is not thereby diminished, as well as in the provision made of the dead stock, the better.

50. IX. For giving, in the most concise and easily-remembered form, in the compass of seven words, expression to both these so intimately-connected positions, existence has been given to this one rule—Let official aptitude be maximized, expense minimized.

Now comes the promised Table of Objects, and means of effectuation.

I. Object the First—Expense minimized:—Proposed means of effectuation, these—

1. Building, for reception of the stock, one and no more than one.

2. Assistant registrars, or say registrar deputes, superfluous none.

3. Of assistant registrars, or say registrars depute, the salaries minimized by competition. And see Object III.

4. Of registrar deputes during the probationary year, the service gratuitous.

5. For an object of reference, map of the whole territory: and see Object V.

6. For exemplars of the documents, the manifold mode of writing employed: and see Object VI.

II. Object the Second—Delay minimized—delay of the service rendered to the suitors:—Means of effectuation, these—

1. Attendance uninterrupted—adequate to all demands.

2. Profit to functionaries from delay, none in any shape.

III. Object the Third—Aptitude of the several Functionaries Maximized:—Means of effectuation, these—

1. Sinister interest excluded, by the complete substitution of salary to fees: branch of appropriate aptitude thereby secured, the moral.

2. Probationership, antecedently to definitive location: branches of aptitude thereby secured, the intellectual and active.

3. Securities for appropriate aptitude, in all its branches, numerous; and effectual (as will be seen) beyond all example.

IV. Object the Fourth—Aptitude of the Machinery maximized:—Means of effectuation, these—

1. The arrangements regarded by anticipation as being best adapted having been appointed by parliament, head registrar (he being divested of all sinister interest) empowered to make eventually effective amendments, by the light of experience, subject to disallowance by King or either House.

V. Object the Fifth—Security for the efficiency of this same process of registration maximized:—Means of effectuation, these—

1. Object of reference, in the description given of the parcels, an all-comprehensive map of the whole territory, as per Object I., exclusive of maps of districts.

VI. Object the Sixth—Extent of the application made of this same remedy maximized:—Means of effectuation, these—

1. Subject-matters of property (moveable excepted) all admitted; copyholds, leaseholds and incorporeal; thence, in correspondent number, the proprietors.

2. Fees exacted or permitted, none; thence the relatively unopulent not excluded from the benefit of the remedy.

3. The manifold mode of writing employed, as per Object I.; thence, expense in remuneration of skilled labour saved to suitors, and the number of exemplars furnished rendered correspondent to the demand.

VII. Object the Seventh—Minimization of the burthen with which the benefit is clogged:—Means of effectuation, these—

1. Fees (as above) none. See Objects I. and VI.

2. Means of communication for documents and other writings, the letter-post; thence, expense of separate communication through skilled labour, saved.

In relation to these several means of effectuation, now follow the promised explanatory and justificative matters in detail.

Now then for these several Objects and means of effectuation in detail.

I.First Object to be accomplished—the Expense minimized:—Means of effectuation, these—

1. Means the first:—Building, for the lodgment of the whole stock—materiel and personnel (as the phrase is in French) together,—one and no more than one.

Already, if I do not misunderstand the matter, your leaning, gentlemen, is strongly in favour of this maximum of simplicity. Lest, however, after all, the determination should not otherwise be on that side, I will take the liberty of submitting to your consideration, an experiment which, in days of yore it fell into my way to make.

In the year 1796 or thereabouts (the year is not material,) Pitt the second formed a plan, and brought in a bill accordingly, for making provision for the whole pauper population of England, by means of a workhouse, under particular management, in every parish or small union of parishes. I took this plan in hand, and demonstrated that it would not do; for that, besides other objections, the difference in respect of the quantity of capital necessary between that plan and one that I pointed out, would not be less than fifteen unillions. With all his faults,—such was the candour and magnanimity of that god of so many idolatries,—he gave up his own plan, took to mine, and a day was appointed for settling the details of it, when it was crushed by a veto from on high, the details of which belong not to the present purpose. The demonstration in question may be seen in four successive articles of Arthur Young’s Annals of Agriculture. Put together, the sheets, some copies of which he presented to me, constituted a moderate-sized 8vo volume, which I propose ere long to reprint, under the title of Pauper Management, prefaced by a history of the above-alluded-to catastrophe.

It will form part and parcel of the history of the war carried on for not less than three-and-twenty years, between George the Third, of blessed memory, and one of his rebellious subjects. I mention thus much, gentlemen, lest, when you read of the capital of fifteen millions left out of his calculation by the heaven-born minister, you should suspect that while speaking of it I was in a dream.

I present to view this incident the rather because in the calculation of the expenses, projectors, however talented, are but too apt to overlook this or that item, which, when brought to light, appears to such a degree obvious, that the omission of it becomes a source of no small surprise.

Thus again: when the late Mr. James Humphreys came out with his plan for an inquiry into the subject of real property, the expense of that part of it which had for its object the obtaining no more than one portion of the information requisite, would have amounted to between four and five hundred thousand pounds. In a paper of mine in the Westminster Review, is shown how the like information might be, because it had been, obtained for next to no expense. So again, when Mr. Windsor, projector of the gas light system, came out with his proposal, an expense, the mention of which was not to be found in them, was that of the pipes by which this so useful species of air is conducted to its several destinations.

2. Means of minimization of expense the second—minimization of the number of the paid functionaries employed.

Minimization of the number of the functionaries employed? methinks I hear the draughtsman and the supporters of the existing bill exclaiming—Minimization of this part of the expense? Is that then the utmost that your plan does, or so much as professes to do? Ours exonerates the public of it altogether: it lays the burthen on the shoulders of individuals; and these, the only ones on whom it ought to press; that is to say, those by whom the accompanying benefit is enjoyed.

Answer 1. Applied to the institution in question, this measure of economy has for its ground the assumption, that the institution is of no use; for, in no inconsiderable proportion, those persons in whose instance the demand for the benefit has place, are those who have not wherewithal to pay for it; and if, for the good of the whole community taken in the aggregate, it be desirable, that for the sake of this species of saving, the benefit should be denied to this part of the whole population, so likewise is it desirable that that same denial should have place in the case of all the rest.

2. Then, as to those in whose instance no such complete inability has place, the less a man’s ability to bear the burthen is, the more severely is the pressure of it felt by him. Be the price that will be thus set upon the benefit what it may, some there will be by whom it will no more be felt, than by the man by whom a halfpenny is given to a beggar is the loss of the halfpenny; while others there will be on whom it will press with all degrees of pressure, up to that which would be produced by his being deprived of the whole of what he has to live upon.

3. In a word, this assumes the shape given to the remuneration of the functionary to be that of payment by fees; and from that mode of payment results an increase given to the expense in another way, which will be brought to view hereinafter under another head; namely, by giving increase to the number of the occasions on which the money will have to be paid. Assessed upon the public fund, the burthen presses upon each man’s shoulders in exact proportion to his ability to bear it; that is to say, in so far as the system of taxation is what it ought to be.

In another work of mine,* for the accomplishment of the desideratum here in question,—that is to say, the minimization of the number of paid functionaries and thereby of the aggregate expense of that pay—may be seen means applicable to functionaries in general, and accordingly to those here in question,—namely, power and obligation to the principal functionary to locate unpaid deputies in sufficient numbers. What may there be seen is—how the matter may be so managed as that there shall always be functionary power enough, and never more than enough: such being made, at all times, the interest of the principal, by whom these auxiliaries are located. As to this matter see below.

3.Third instrument of minimization applicable to the expense of the institution, competition applied to the remuneration of the functionaries.

If the security for appropriate aptitude on the part of the competitors were in any degree deficient, from this same deficiency an objection might be opposed to the use of this instrument of frugality; but the security which will here be proposed will be seen to be entire, and completely satisfactory; and this being the case, the objection vanishes.

As to any other objection to the application of the competition-applying principle, on those who object to the application of it in this case—on those, if any such persons there be, who approve of it in any other instance—is it incumbent to declare why it is that they disapprove of the application of it in the present instance. He who disapproves of monopoly in any one other instance, let him say on what ground it is that he approves of monopoly in this instance. To be consistent, he must approve of monopoly on the part of dealers, applied to everything in relation to which he here accords it to purchasers: the food he keeps himself from death with, the clothes he covers himself with, the labour by which he makes provision for his several other wants, whatever it may happen to them to be.

Whence then came the banishment of this instrument of frugality from this part of the labour market? Whence but from the sinister interest, to the action of which those on whose will the settlement of the matter has depended, stood exposed: to them belonging the power of location, applied to the official situation to which, on each occasion, the remuneration was to be attached, the higher the remuneration the greater the benefit to themselves: their attachment is to that part of the benefit which was reaped exclusively by themselves: not to speak of the benefit produced by the emolument, in its quality of part and parcel of the aggregate stock of the matter of corruption—a benefit in which they were but sharers.

But (says a common place argument, which, on every such occasion, may be heard from the lips and even from the pens of corruptionists,) screw down a man’s remuneration in this way, he will raise it up again by whatever instruments lie within his reach. Answer, that has been given over and over again—True, that’s what he will do if it be reduced thus low; but so will he, be it ever so high: and the higher it is, the more effective the power—the greater the facility—it gives him for screwing it still higher and higher, till he screw it up to the height of that of a king; and to crown all, to that of an emperor. Look to France—look to Louis Philippe with his Civil List of £360,000 for five months—£864,000 for twelve months. Look to the United States; compare the £864,000 with President Jackson’s £5000 or £6000 a-year.

So, if what is proposed is that the situation, with the remuneration attached to it, be made a subject-matter of purchase, he that purchases (say they) will make the most of what he purchases: just as high as the profit can be screwed up by him, just so high will it be.

Such then is the policy of these same enemies of the community and lovers of themselves: what they refuse to make application of, consists of all the several instruments by the application of which the evil is capable of being reduced: what they do make application of, is the sort of instrument by the application of which the evil is maximized.

Thus it is in the case of the most profusely remunerated of all functionaries, and (such in his situation is the nature of man,) naturally most unapt in point of intellectual and active appropriate aptitude of all functionaries: by the half million which is openly and avowedly given to him—by this it is that he is enabled to obtain in the shape of patronage—patronage of needless, and to us, useless offices, so many millions, which are not openly and avowedly, but at a vast ulterior expense covertly, given to him.

To the application made of this rule, principle, and source of economy, one exception, and one alone, there must be. On the occasion of application made of the securities in question, the existence of antecedent experience of the conduct of the functionaries in question in that same situation is supposed and is necessary. But, at the outset of the institution, by the supposition, no such experience can have had place. This exception then is a necessary one. Such at any rate will it be pronounced by those to whom it belongs to determine; and advantageous indeed will be the compromise, if with no other than this exception, they can prevail upon themselves, or be prevailed upon, to give their concurrence to this rule.

To the functionaries first located in the several situations in question, let them then assign such remuneration as on the score of as being in accordance with the masses of the matter of remuneration attached to the general run of the existing stock of official situations they would attach, were no such measure of economy as this brought to view: much good may it do them: molerate is the boon that can be claimed for them on the score of assured competence, self-denial and disinterestedness.

4. Fourth instrument of minimization applicable—gratuitousness of the service of deputes during the probationary time—say a twelvemonth.

Refuse to see who can, escape from seeing who can, deny who can venture, the efficiency of this test of aptitude. Of those by whom, in any tolerable degree, appropriate aptitude is possessed, who is there that will decline submitting to it? What danger can there be that by his submission to this test, any diminution of the requisite or desirable share of appropriate aptitude will, in the instance of the functionaries located on these terms, be produced?

Nor less favourable to the interests and feelings of the individuals in question will these arrangements be, than to the interest of the public in respect of the aptitude of its functionaries. By no individual, who in his own eyes is not able to abide this test—by no individual who is not desirous of its being so—will application of this test be made. Made then, to the satisfaction of all persons concerned, this same application of this same test will be. And on the part of each and every one of those who do not abide it, how small, in comparison will consequent suffering be? “The plan does not suit me,” says the man:—or, “I do not choose to serve in it on such terms:” and, of either of these assertions, in what way and by whom, can the verity be contested?

But under Matchless Constitution, of those on whom it depends it is the interest that throughout this as well as every other part of the official establishment, the quantity of appropriate aptitude rendered necessary on the part of the several functionaries, should be not the greatest possible, but the least possible, consistently with the keeping the government, and with it their sinister profit in all shapes, from falling to pieces: for, the greater the degree of aptitude exacted and rendered necessary, the greater will be the odds against their several relatives and other protégés,—the greater the chance that by their being found not to be possessed of it in so high a degree as their several competitors, they will stand excluded.

II.Second Object to be accomplished, minimization of delay in the service rendered to each several suitor.

1. Means of effectuation the first—Assistant Registrars, or say Registrars Depute, superfluous, none.

The number of the functionaries employed being given, the degree in which the object now in question is accomplished, will be proportioned to the quantity of attendance exacted of each such functionary: that is to say, as the number of the days on which attendance is paid by him in each year, and the number of the hours during which such attendance is paid by him on each such day.

As to the number of each man’s days of attendance in the year, deductions from the whole number of days in the year are called for, not only by the need of attendance on his private business, but by what is due to health and comfort, as well as by what is understood to be due to religion.

On the score of religion, allowed to each functionary days of non-attendance—say the fifty-two Sabbath days, with the addition of Christmas Day and Good Friday.

Hours of attendance exacted, all those on which suitors in general are inclined to repair to the spot for the purpose of receiving the appropriate service. A precise standard of reference is presented to view by the greatest number of hours habitually exacted at the hands of any functionary in any of the existing public offices.

For the number of vacation days to be allotted for the purpose, this same standard of reference may serve: say as many consecutive days as there are in [four] weeks; subject to the being, in the instance of each individual, dispersed, and placed in different parts of the year, by agreement amongst the several individuals concerned.

In addition to these ascertainable times of absentation, the accidental occurrence of sickness suffices to demonstrate, to any rational mind, the unreasonableness of any reliance on altogether uninterrupted attendance. To Matchless Constitution alone does it belong to expose the most important part of the business, as in the case of Honourable House, to be put to a stand by sickness on the part of one of its members.

Note here that, in this case as in all others, if for any part of the service rendered by the functionary, instead of or in addition to salary, remuneration were appointed or left to take the shape of fees, the purpose here in question will be but too largely frustrated. For multiplication of the fees, maximization will be made of the number of the times, and thence of the aggregate of the times, of attendance: with intervals between the several times,—and thence of the quantity of delay which each business will experience. This will already (it is hoped) be found sufficiently evident; if not, it may be seen enlarged upon in the work intituled, Petitions for Justice, &c.

Note also, that if to the number of the functionaries adequacy be secured as above, a correspondent relaxation in the severity of the obligation of attendance, may be effected without any material addition to the expense. And then it is that, through the medium of the deputation system, the quality of elasticity (so to speak) may throughout the whole field of operation be given to the provision made for the service of public functionaries; always close fitting; always enough, never too much.

III.Third Object to be accomplished—on the part of the several functionaries, aptitude maximized.

Means of effectuation, this one.

In my Constitutional Code, in relation to each of the several official situations belonging to the several departments—legislative, executive (administrational included,) and judiciary,—under the head of Securities for appropriate aptitude, provision is made for the possession of that same so highly desirable quality by the several functionaries therein respectively located. Of these same securities, some there are which, being applicable to no other species of constitution than that of a representative democracy, are foreign to the present purpose. On looking over the list of those same securities, and more particularly the list of those applicable to the judiciary department, selection has been made of these; and, after the necessary modifications made of them, to fit them for being applied to the sort of office here in question, the list of them is as follows:

1. After the first and original appointment, or say location, exclusion put upon all candidates for the situation but such as, in that of registrar depute, have given proof of appropriate aptitude in all shapes, by the exercise of the same functions under the superintendence of a registrar principal.

2. The obligation contracted by the utterance of an inaugural declaration, to be pronounced antecedently to entrance into office; and the sense of responsibility increased in proportion to the publicity of it. As to this, see Constitutional Code, ch. xii. Judiciary, § 29, Judge’s Inaugural Declaration, when published; and, as a model, in the already-published volume, Vol. I. ch. vii. Legislator’s Inaugural Declaration.

3. The interdiction put upon all emolument other than that which in the eyes of all men stands attached to the office by law. See above, Object I. Expense minimized—Means of Effectuation, 3. Remuneration superfluous, none: Object VI. Means of effectuation, 2. Fees, none—and Object VII. Burthen minimized: means of effectuation, 1. Fees (as above) none.

4. In particular, interdiction of all emoluments increasing in amount with the increase in length and number of instruments deposited and searched for, and searches made, at the expense of suitors.

5. Single-seatedness of the office: thence, integrality and undividedness of whatever responsibility, legal or moral, stands attached to the conduct of the functionary in the exercise of the duties of this his office. As to this, see Constitutional Code, Vol. I. ch. ix. Ministers Collectively, § 3, Number in an office.

6. In the eyes of all persons present in the registration-office in quality of actors (as they may be called) on the registration theatre, exposure of the tenor of the inaugural engagement, as above.

7. Of his attendance at the seat of duty, the constancy secured by the connexion established (if found or deemed necessary) between attendance and the receipt of official pay. As to this, see Constitutional Code, Vol. I. ch. vi. Legislature, § 20, Attendance and Remuneration how connected.

8. Dislocability of the registrar principal by the king or either house of parliament: by the king, to wit, by an order countersigned by the Lord Privy Seal, with special reasons assigned; by either house of parliament, without any such reasons.

Question 1. Why countersigned by a single high functionary, instead of being made an order in council?—Answer. For responsibility; for when, instead of an individual, the so-called burthen of responsibility is laid on a multitude, the pretended burthen is an air-balloon, and the ceremony a farce.

Question 2. Why give this power to the Lord Privy Seal?—Answer. On the presumption that the functionary to whom the duty of countersigning the instrument of location is allotted, is the Home Secretary. The essential point is, that the effective power of location and that of dislocation should not be in the same hand. Why? Because the inducement, whatever it were, by which the location had been effected, would, generally speaking, be sufficient to prevent the dislocation, howsoever merited, from taking place; for, by every consideration by which human conduct is commonly on such occasions most powerfully influenced and determined, the patron would stand engaged to continue his protection to his protégé.

Question 3. Why not give to the Lord Chancellor either the locative power or the dislocative? Answer. Because, judging from his relative situation, and from past experience, he would abuse it. It is of the situation, of course, that I speak, not of this or that individual, to the exclusion of others. Not one of you, gentlemen, without fear of the imputation of wishing to give offence, not one is there of you, I can venture to assert, to whose conviction it has not been manifest what injury has been done by equity judges under the pretence of justice, by counteracting the intentions of the legislature, as manifested on former occasions, by the institution of register-offices, involving titles in clouds of factitious uncertainty for the sake of the litigation and the profit wrung by them and their subordinates out of the expense.

On this, as on so many other occasions, need I add, gentlemen, that it is in the fee-gathering system, the syphilis of the law, that all this corruption has its root.

A set of securities, such as the above—this, if anything, is what is meant by the word qualifications, application of which having been customarily made when a new office has been established, has of course been made in the present instance.

During the period in which, by reason of the novelty of the institution, there has not been time sufficient for bringing to view the result of the test of appropriate aptitude afforded by service performed in the very occupation in question, an idea which, since the publication of that same code,* has occurred to me is this: namely, that to keep off unapt aspirants—to keep off all those men who in such numbers regarding themselves as being secure against the being obliged to quit, are so ready, for the sake of the emolument, to take upon themselves the duties of the office, whatever it be,—the first year’s service should be performed gratuitously. On this plan, a man who felt himself unfit for the office, would be absolutely without motive for seeking it, or so much as accepting it even it offered: whereas, in the present order of things, destitution for other cause than judgment of guilty according to legal forms on conviction of a criminal offence being morally impossible, the consequence is, that in no other shape is any degree of inaptitude sufficient to keep a man out of office, and preserve the public service from the evils to which his incapacity subjects or exposes it.

So much for that which ought to be: now for that which is. In the character of securities for appropriate aptitude on the part of the class of functionaries in question, the supposed securities, customarily provided under the name of qualifications, may, without fear of refutation, be pronounced worse than useless; and the supposed securities provided in the present instance, are of the sort of those which are thus customarily provided.

Of these same securities there are two: namely, 1. Aggregation of the candidate in question to a certain class of persons who are occupied in exercising, or endeavouring to exercise a certain profit-seeking profession; 2. Bearing a part in a certain ceremony called the taking an oath.

Neither the one nor the other of these supposed securities are means in any the smallest degree, conducive to that same declared end.

1. The class of men to which the candidate for the office in question is regarded to have been aggregated, is that of barrister at law. But, with the exception of age, to the power of aggregating a man’s self to that same class, no other condition is necessary than the having eat or appeared to eat a certain number of dinners in the same large hall in which other men are, at that same time, engaged in that same occupation.

Among the writings which have for their object the contributing to the instruction of these same men, is one that has for its title, “Jocular Customs of divers Manors.” One of these same customs consists in the emission of gas from the intestines, on certain solemn occasions, for the entertainment of the company assembled. The egesta in this latter case would not, in the character of a security for appropriate aptitude, constitute a less appropriate or less efficient one, than is furnished by the ingesta in the former case.

2. Now as to the oath. As in the nature of the case, so in practice, there are two kinds of oath—the assertory and the promissory. The one here in question belongs to the promissory sort. In the case of the assertory oath, in my Petitions for Justice, the worse than uselessness of it has been held up to view, and proofs, uncontested and incontestible, may be there seen of its being so: and, with no less truth may these same proofs be seen applying to promissory oath, in the present as well as in all other cases.

A supposed security which is inefficient, is not negatively and simply useless; it is positively much worse than useless: it is a source of delusion, producing confidence where confidence has no ground to stand upon. So far as it is a security for any thing, it is a security for relative inaptitude.

On a similar occasion, to Sir Robert Peel, when home secretary, were observations to this same effect presented: presented, but without effect.

It pains me to think, and to have to say—that, on the present occasion, these same observations have been equally unavailing.

Against truths so incontestible and so important, the eyes of public opinion will not always remain shut; and, no sooner do they open, than any draughtsman, in whose draught either of these same sham securities has place, will be covered with a wrapper of ridicule, in which it would pain me to see enveloped any of the gentlemen to whom I have the honour thus to address myself.

IV.Fourth Object to be accomplished—on the part of the machinery of the system, aptitude to be maximized.

Means of effectuation, these—

In the text of the act, do whatsoever antecedently to experience, presents itself as capable of being done towards the accomplishment of this desired purpose. But in relation to the system thus formed, give to the chief registrar the power from time to time to make whatsoever amendments shall, in his eyes, have afforded a promise of being conducive to that end; subject to disallowance either by the King alone, or by either of the two Houses.

For the giving of this initiative and defeasible power of legislation, the reason is at once simple and conclusive. For their guidance, no experience whatsoever will the framers of the act have had, whoever they are. Full experience will have had this same functionary, to whom the trust is thus proposed to be confided. True it is, that if of any other of the arrangements made by the act, the effect were to give to him an interest in the deterioration of the system, together with the power of promoting, at the expense of the universal interest, that same particular and sinister interest, a well-grounded objection would thus be opposed to this same proposed arrangement. But, 1. in the first place, by what has been proposed under the last preceding head, he will be seen to stand effectually purged of all such sinister interest. 2. In the next place, an additional and as yet unexampled security against evil in that shape, is provided by the power thus given to each one of the three component sharers in the power of the supreme legislature.

In several unconnected parts of the bill, as it stands at present, power of making regulations respecting the details of the business is conferred on this same functionary; but, as to the matters in relation to which this power is given, nothing else is done, in and by the bill; nor is any power of disallowance given to any authority other than that of the whole legislature. Between the cases in which without inconvenience, power of regulation by the hands of an authority other than the legislature may, and those in which it cannot be given without preponderantly evil consequences, it would not (it is imagined) be easy to draw the line; by the expedient here proposed, all need and all use of any such line are done away.

Eminently unpalatable to the taste, because so eminently and equally detrimental to the particular interest of some of the opposers of the principle of all-comprehensive codification, would the here-proposed arrangement be: dried up by it in no inconsiderable degree, would be the source of the indefinitely lengthy train of amendments upon amendments, with the profit of the branch of amendment-making, which this branch of Matchless Constitution has contrived to put into their hands; a profit, which cannot but have had no inconsiderable share in the producing of the opposition which continues to be made to the only arrangement by which anything like complete effect can be given to any the most salutary and indispensable arrangements, or individuals be preserved from punishment, for the not doing of those things which it has thus been rendered, and continues to be rendered, impossible for them to do; for how great is the evil, which, in their eyes, would be too great for the whole community to be afflicted with, for the sake of putting any the smallest sum into one of the noble or right honourable pockets? how extensive the conflagration that would be too extensive to be made for the purpose of roasting for him a single egg? But, by a reformed parliament, let us hope, howsoever according to custom the malefactors may be left comfortably wrapt up in impunity, the maleficent practice may be put a stop to.

Of the appropriate and best adapted mode of making amendments in existing regulations, by whatsoever authority made, a description may be seen in the part already published of the proposed Constitutional Code; namely, in ch. vi. Legislature, § 29, Members’ Motions; and of the mode in which, without detriment to the supreme power of the legislature, alterations may be made by authorities subordinate to it, an exemplification is given in the as-yet-unpublished part, namely, vol. the third, ch. xii. Judiciary collectively, § 19, Judge’s contested interpretation-reporting function; § 20 Judge’s eventually emendative function; to which reference is made in ch. vi. Legislative, § 34. Securities for appropriate aptitude, art. 44.

Having, so far as depends upon me, introduced and applied to this same business the hands which, by situation, will be in the highest degree well qualified for the performance of it, I shall there leave it, and save to myself the time and labour of framing any proposed arrangements of detail for the purpose in question, and to the gentlemen I am addressing, the time and trouble necessary to the taking of any such arrangements into consideration.

V.Fifth Object to be accomplished—security for the efficiency of the process in question—namely, the process of registration,—maximized.

Means of effectuation, an appropriate all-comprehensive map.

Altogether indispensable seems to me to be this muniment; without this for an object or standard of reference—without such an anchor as this to be fastened to,—surely to a vast proportion of the landed property in the kingdom will the title remain floating in the ocean of uncertainty.

In one part of this vast aggregate, the assurances have maps of correspondent extent for their accompaniments; in another part in the vast remainder, no such means, or say instruments of identification, have place. If necessary or useful in any one instance, where is the instance in which it can be otherwise?

An all-comprehensive original being thus formed, then, of the several parts of it should be taken a copy of each of the several parishes contained in the whole territory; with correspondent provision for extra-parochial places.

But here a two-fold difficulty presents itself:—

1. Cause of the difficulty, in the first place, the irregularities in the surface of the earth. Exhibited by this surface are all imaginable diversifications of curvature; whereas, in this graphical representation of it, on the only surface which it presents to view, no one of all these diversifications is exhibited; the surface is, the whole of it, in one and the same plane.

2. In the next place comes the entire figure of the earth, considered in its character of a solid body—an oblate spheroid—the mode of curvature, the form of its divergence and aberration from a right line, not uniform throughout, as in the case of a sphere, but varying.

General consequence, in a degree more or less considerable, incorrectness in a representation given of the portion of land in question, in every map that ever has been, or ever can be, made of this same surface.

Consequences in particular, these.

Where there are maps, in the case of each division of the surface, say in the case of each mile, the quantity of the land given by the portion of the all-comprehensive map—the general map—would not agree with that given by a particular map of the same spot, taken without reference made, and regard paid, to the all-comprehensive map.

2.—The number of the products of the next subdivision, say the acres, stated in the title-deeds as belonging to each proprietor or set of proprietors, would not agree with the number of acres represented as belonging to him or them in and by the corresponding portion of the all-comprehensive map.

3.—All round each mile exhibited by the portion of an all-comprehensive map would be a sort of fringe or border which by that map would be represented as belonging to one proprietor or set of proprietors, while by the particular and separate maps, together with the number of the acres as stated in the assurance, they would be spoken of as belonging to a different one.

In every instance in which the same mile is parcelled out between proprietors or sets of proprietors more than one, each would, in and by the number of acres stated in the assurances as belonging to him, together with the maps, if any, with which those same assurances were accompanied, be represented as having a larger part in it than he really has or could have; each would therefore be in the assurances stated, and in the accompanying map or maps represented, as possessing a quantity more or less considerable, which he could not possess but at the expense of the part possessed by the other or others; and thus in every part of the mile there would be a portion more or less considerable which would be represented as belonging to two different proprietors at the same time.

69. In relation to this, it will naturally be observed that, by this discrepancy, no actual collision, litis-contestation, or inconvenience, in any shape, is known to be produced: for that by the natural boundaries which have place upon the land itself—that is to say, the hedges, ditches, fences, palings, and the walls,—what portion it is that belongs to each such proprietor, or set of proprietors, is indicated and demonstrated beyond dispute.

True, in so far as boundaries of any sort have place, this cause of doubt and dispute is obviated and excluded. But, in every acre in which boundaries are wanting, this remedy to the deficiency has no place.

What then would be the remedy?—Answer. It would be thus expressed. Take an account of the number of feet and inches in the actual occupation of each proprietor, or set of proprietors, or their respective lessees: divide, then, in the map, the whole mile into such or such a number of parts or portions: divide the correspondent mile in the all-comprehensive map into that same number of parts or portions situated with relation to one another in the same manner. In so doing, mark their several proprietors as exhibited by each one of the correspondent portions in the all-comprehensive map, the same as those in those which are given by the number of acres; and so on in case of any ulterior or minuter division of the land among different occupiers, as in the case of towns.

From the adjustment thus made would result the demarcation proper to be made in the correspondent portions of the all-comprehensive map; and where, on the land itself, between one property and another, there is not any actually existing boundaries, the lines on which the boundaries ought to be placed.

In the country (or say in French, in the plat pays) differences of no greater an amount than that of a few feet would not, generally speaking, be very material. Not so in towns, or in the precise spots anywhere where fixed fences of any kind, more especially those composed of brick-work or cemented stone have place, a man whose fence in any direction had been too advanced, would have to pull it down, and to be charged with the correspondent quantity of expense; and so in the case of water-courses. Other cases might be brought to view; but for the particular example in proof of the importance of the general observation these may suffice.

Think of the expense which, by this course, would have to be produced in the case of a church, or any other similarly expensive public building!

On the continent of Europe, in countries more than one, the thus proposed sort of muniment has actually been brought into existence, and continues to be beneficially employed.

In this country, among the pamphlets which of late have been published on the subject of assurances, several there are in which this so essential an auxiliary to the efficiency of the main institution is recommended.

In those foreign instances, the all-comprehensive map* forms an appendage to a correspondently all-comprehensive cadastre, as it is called, containing a body of information, of which that which is exhibited in and by the sort of muniment called in English, a Terrier, forms a part.

The all-comprehensive muniment called Doomesday Book, framed so early as the eleventh century, a short time after the Norman conquest, is a sort of inchoate exemplification, though imperfect and inadequate in the degree that might be expected at so early a stage in the progress of society.

Trifling, in comparison of the usefulness of it, would be the expense of providing this same instrument of general security. For the single purpose of defence of the country, by means of fortifications, against invasion by a foreign enemy, a document of this sort, instituted at public expense, by order and under the direction of the Board of Ordnance, is in considerable advance. Of the total number of counties (in England and Scotland 52,) 18 or 19 are already on sale: among them the two largest,—namely Yorkshire and Devonshire.†

For giving facility to the recurrence made to a representation of this sort, a species of indication, applicable to any map whatsoever, has already been employed and is actually in use. A map with this improvement in it lies before me. It is a map of Paris. The whole surface is divided into parallelograms by lines composing a sort of lattice-work. In one direction, these parallelograms, as they follow one another, are distinguished and designated by the letters of the alphabet, a, b, c, &c.; in the cross direction, by numerical figures, 1, 2, 3, &c. In the margins are inserted, one under another, in alphabetic order, the names of the streets and other divisions, preceded respectively by the letter and the figure, by the conjunction of which the place or places which the reader is looking for may almost instantaneously be found.

Over and above the information, of which the several parishes and extra-parochial places in the territory in question are the subject-matter, this same document might be made to serve for supplying the like information respecting the division styled Manors.

Between parishes on the one part, and manors on the other part, various are the relations that have place:—

1. In some instances they coincide.

2. In other instances, manors more than one are contained, every one of them in an entire state, in one and the same parish.

3. In others again, parishes more than one are contained, every one of them in an entire estate, in one and the same manor.

4. In others again, in which manors one or more than one are contained in an entire state in one and the same parish; to these integers stand attached fragments more than one, which extend over parishes more than one.

5. And vice versâ, in other instances in which parishes one or more than one are contained in an entire state in manors more than one, to these integers stand attached fragments one or more than one, which extend over manors more than one.

Various are the signs and devices, by any one of which this relation between the sites of parishes on the one part, and manors on the other part, might be exhibited to the eye and held up to view.

As to the particular nature, the need of, and benefit derivable from, the ascertainment of the several manors in existence, and the mode in which the obtainment of this information may most effectually and commodiously be accomplished, it belongs not to the subject of registration; but some suggestions of mine in relation to it, may perhaps find their place on another occasion under the appropriate head.

“Give me,” said Archimedes, “give me but another place to stand upon, and I will give motion to the earth.” “Give me,” say I, “give me but a map to point to, and I will give rest and quiet to ‘all that inherit’ this our portion of the earth’s surface.”

VI.Sixth Object to be accomplished—Extent of the application made of this same security, maximized.

If the institution is productive of benefit, who are they who in respect of justice ought to be left destitute of it?—a question this, which assuredly it is incumbent on him to answer, if any such person there be, by whom opposition is made, in any shape, to the utmost possible extension that can be given to this same benefit.

Exceptions,—always excepted are all cases, if any such there be, in which by the burthen imposed in all shapes taken together (pecuniary expense included) the benefit will be outweighed. But this same burthen—on him by whom the existence of it is alleged, lies the obligation of making proof of its existence; and this obligation he will fulfil, on pain of seeing his silence in relation to it regarded as a virtual confession of the groundlessness of the opposition made by him to the proposed measure.

Means of effectuation, these—

1. Subject-matters of property (moveable excepted) all admitted: copyhold, leasehold, incorporeal; thence, in correspondent numbers, the proprietors.

Is it that the expense is such as would outweigh the benefit? On the contrary, the expense would be next to nothing. Such it was, for example, 1. In the case in which the body of information obtained for the use of Parliament had for its subject-matter the population of England, Wales included.* 2. In the case in which it had for its subject-matter the provision made throughout for the education of the people in Scotland.

Second means of effectuation—

2. Fees (as above) none; avoiding to give to any part of the remuneration the shape of fees.

Question—Why not? Answer, short and conclusive; reasons the following:—

1. To all who are unable to pay the price thus set, the service is denied: and, in every instance in which the evidence which by that service should have been preserved and rendered accessible, is for want of such service rendered unobtainable, justice itself is thereby denied.

2. To all those to whom, whether in quality of incumbents or in that of patrons, in the whole or in any part a profit is suffered to be reaped from this source, an interest is given, and that a but too efficient one, in maximizing the amount of it.

The modes in which this increase is given to it are these—1. Increasing the number of the occasions on which each fee is exigible; 2. On each occasion, increasing the quantity of the fees thus exigible; 3. In the case where the service consists in copying a written instrument, or performing any operation in relation to it, and the amount of the fee or fees increases with the length of the instrument, increasing the length accordingly; 4. If to the rendering of the service a journey is necessary, giving increase to the number of such journeys, and to the length and expensiveness of each.

Thus, upon every occasion is addition to an unlimited amount made to the expense.

3. So as to delay; where and in so far as the means employed for making addition to the profit consist in making addition to the number of the occasions on which the fee or fees are exigible, a means contributory to the effect is the minimizing the quantity of the service on each occasion performed, that the number of successive days on which it comes to be performed may be maximized: here then there are so many intervals of delay produced. Moreover, in instances to an indefinite number, so it is that by addition made to the length of the interval between occasion and occasion, addition may be made, and accordingly is made, to the number of the occacasions on which a fee or fees are exigible, and accordingly exacted.

4. When, and in so far as this is the shape in which the remuneration has place, the amount of it is in a perpetual state of uncertainty; and, whatsoever be the most proper amount, from this same proper amount it is continually divaricating; being almost always, and to an indefinite extent, either too great or not great enough: at one time the public is suffering by the excess; at another time the functionary is suffering by the delinquency.

5. When this is the mode of payment, the amount of the emolument and the sources from whence it flows, are kept concealed from the public eye; and the application of the check which by that all searching instrument would be opposed to abuse is thus averted.

True it is, that by the institution of the fee-fund already mentioned, the efficiency of the inducement to make addition to the expense is more or less diminished, and may even be extinguished altogether. But of its being extinguished altogether, there can be no adequate ground of assurance. For so long as by and from the hands of individual suitors benefit in any shape is expressly allowed or may be received without danger, so it will be; and however strong, and in appearance sufficient, the door may be which is shut against it, crevices will be found or made in this same door, and at these crevices emolument will flow or ooze in.

True it is again, that saving the above exceptions, a limit being thus put to the amount, expense in excess—in one word, depredation—is so far successfully obviated. But the eye of the public being thus excluded from the scene, abuse in other shapes is thus left without controul: for example, that oppression, which, without benefit rendered by it in any other shape to the oppressor, may be practised for the gratification of pride or enmity.

In a word, in no shape whatsoever will benefit be shown to flow from the giving this shape to the mass of official remuneration, or any part of it.

For the producing of a semblance of benefit—for the producing in the mind of the public a notion of the existence of benefit in some shape or other,—the word alacrity, or some equivalent locution, has been employed. But by no person has any attempt been made to show—by no person will any successful attempt be made to show—that benefit in any determinate shape has ever been experienced by any person from this source, nor how it is ever likely to be experienced.

In the case of the fee-fund, completely is the door shut against this supposed benefit. Emolument, none; alacrity, none. The sole assignable cause ceasing, so does the effect.

Put aside the fee-fund, thereupon comes into consideration the nature of the service in the several shapes in which remuneration in this shape is desired to be attached to it. Let any one by whom the benefit is supposed to have place, look into the service in each case, and say how it is that from the attaching to it remuneration in this shape, benefit, in the alleged shape or any other, can be seen to follow.

Let him look out for the several interesses; for the parties whose interest is any way affected: these he will find to be on the one part the several suitors, who, in person or at a distance, have need to hold intercourse with the several functionaries; on the other part, those same functionaries; and as to the suitors, they will be seen to be either—1. Persons applying to have their documents or information thereof received into the archives of the offices; or, 2. Persons having need, or being desirous of making inspection into or inquiry concerning the contents of those same archives.

True it is that under the fee-fund system, while the functionary is secured against loss, he has, in some cases, a chance and hope of profit; and in that hope a source of alacrity. But what an atom of good is this to set against the weight of the evil which has been shown to have place in the other scale!

Note that for the tutelary inspection performed by the eye of public opinion, a continual demand will be created by the danger lest, by a conspiracy between the functionaries on the one part, and solicitors or other agents of suitors on the other part, additions be made to expense, and for that purpose to delay, as above.

Shocking, in the extreme, to the delicacy of gentlemen in both these situations will, of course, be any such suspicion. But what has happened once may happen again; much more what has had place universally as well as constantly. How it is that by a conspiracy between the species of judges styled Masters in Chancery on the one part, and the solicitors of parties on the other part, may, to an enormous amount, have been habitually,—under and by virtue of the matchless corruption engendered and fostered by Matchless Constitution,—a pitiless extortion obtained from suitors on pretences knowingly false, and justice thereby to all but the very few denied, and to the few sold, has now not only been completely authenticated, but rendered universally notorious. And whether the fountain of this corruption be yet dried up, let any one who is so minded speak.

On this subject, matter may be seen in various works of mine, but more particularly that which is entitled “Justice and Codification Petitions,” &c.; for on most points close is the analogy between the sort of official service by which what is called justice is administered, or professed to be administered, by the judges and their subordinates, and that by which pre-appointed written evidence is registered. The case is, that the sort of service rendered by the functionaries belonging to a register-office of the kind in question, is, as elsewhere observed, subsidiary to the sort of service rendered by the functionaries who are considered as belonging to the judiciary establishment, and is liable accordingly to abuse in the same shapes produced by the same causes.

3. The manifold mode of writing employed: thence (besides the production of other beneficial effects to a vast amount) by reduction made in the expense, contribution made to the maximization of the number of the persons to whom the benefit of registration is imparted.

In an essay of mine on the subject of the late Mr. Humphrey’s work on Real Property, is contained a description of this invention, with a detailed explanation of the uses to which, in the field of registration, it is capable of being applied. This essay made its appearance in the form of an article in the Westminster Review, No. XII. for October 1826; and, having reserved some numbers for gratuitous distribution, I took the liberty of presenting a copy to each of the gentlemen to whom, in their quality of Commissioners of Inquiry into the Law of Real Property, this paper is addressed. Of all these copies the receipt has been acknowledged.

Of a contribution so highly important as this invention seemed to me to be to that service to the cause of justice, the conferring of which was the purpose of the commission given to them, to find no notice taken was to me a disappointment of no ordinary severity. But, at present I have in hand a security for the cognizance which they will take of it; I mean, the engagement which I set out with begging their attention to—an engagement, fruit of that public spirit by which they stand so eminently distinguished—I mean the engagement to give publication in their reports, to whatsoever suggestion I shall have submitted to them for that purpose.

Here follows, then, of that same article, such part as regards the manifold mode of writing. [Here follows the passage, from “Now as to Registration” near the end of p. 405, to “Marriage Settlement,” near the beginning of p. 408, antea.]

Gentlemen, you have read what is above. I now call upon you—I hereby call upon you—either in your report or proposed law, to give to that instrument of justice and security against fraud on one part, and ruin to countless individuals on the other part, the attention and employment so incontestibly due to it, or if not, to say why not; for, on the score of conciseness, this locution I am content to borrow even from the judicatories which by so sad a misnomer call themselves Courts of Equity.

Yes; fixed upon you already is the public eye; and under the sharpened eye of a reformed parliament, fastened upon you it will be with unprecedentedly searching energy.

Pretences, indeed, I have heard—reasons I will not call them—the name of reason I will not profane with them—pretences, then, I will call them; but such pretences—I am ashamed to think of them. I am ashamed to think from what lips it is that I have heard them. Name those lips I will not: they were such from which I should have hoped for better things. “Of any such number of copies (said the voice)—of any greater number of copies than are at present in use there is no need. The remuneration for skill in a laborious profession ought not to be cut down too low.” Then there is the paper—the paper not white enough—the ink not black enough. In a word, the thing was (I found) an innovation—the offspring of theoretical fancies—instead of conformity forming a perfect contrast to the precious fruit of ancestor-wisdom—the existing practice. As to practice, true it is it had already been in use for years. In use?—but with whom? Is it for official dignity to put itself to school?—to school?—to the school of a newspaper?

So much for the arguments against the use of this instrument of security against forgery and of reduction of expense. Now for some matters of fact, some states of things, in favour of it.

1. First, as to the notion about uselessness. I turn to the masterly and admirably-instructive work, the gratuitously-distributed volume of one of your number, Mr. Tyrrell, intituled, “Suggestions to the Commissioners appointed to inquire into the Law of Real Property.” In it I read the following passages:—

Page 263. “If it be thought improper to take the custody of wills, which may include any personal estate, from the Ecclesiastical Courts, office copies of them might be registered upon being authenticated by an affidavit made by the officers who have examined them, and heavy penalties should be imposed upon them in case of negligence in overlooking a mistake. The errors in the official copies made at Doctors’ Commons are so frequent, that few counsel will venture to advise upon an obscure will without requiring to see the original, or requesting the solicitor to ascertain the accuracy of the copy. I have met with several instances of important mistakes. In one office copy which was examined with the original by my desire in the last year, four verbal errors were found in about as many lines, every one of which altered the interest of the devisees.”

Page 264. Speaking of Judgments: “They are not binding, under the present act, upon lands in a register county until they have been registered in that county, and in like manner they should be required to be registered separately with respect to every different county in which there may be estates intended to be charged with them, and not to be effectual as against other securities or assurances of lands in such county which may have been previously registered.”

That which it seems clear to me was, on this occasion, contemplated by Mr. Tyrrell, is—an indefinitely repeated process of registration; and, if this be really what was meant by him to be proposed, the consequence is, that in relation to the demand it presents for the manifold mode of writing, it makes no difference where the scene of the operation lies: whether in one and the same edifice or in so many different edifices. I say in so many different edifices, or at least in some considerable number of different local edifices: for, as between the one plan and the other, the option is (in p. 274) stated by him as hanging nearly in equilibrio.

Page 275. “An official copy of any deed, will, or other document might be given to any person entitled to an interest in the estate, and might be signed by the two clerks, by whom it may have been examined with the original, and who should be liable to a penalty for every mistake in it.”

So says Mr. Tyrrell. Now then for a few questions to him:—

1. To the number of the persons to each of whom it may happen to have an interest in this same estate, what is the limit that can be set?

2. Accordingly, what is the limit that can be set to the number of the copies which on this plan might be needful? with a fee for each?—a fee increasing with the length of each such copy?

3. Or to the number of the fees, payable in respect of these proposed double attestations?

4. Or eventually to the number of the mistakes to which it may happen to have been made, with fees for the several persons employed in the correction of those same mistakes?

Not to speak of the quantity of time consumed in the discovery of the error, and the applying the corrective to it.

5. On the supposition, that in lieu of the ordinary mode of taking copies, exemplars—all of them equally entitled to the appellation of originals—were taken in the manifold way, what possibility would there be of any one such mistake?

True it is, that, supposing the number of such exemplars to exceed 14, there would not be a possibility of furnishing an exemplar to each of the persons in question, without the necessity of a transcript from the original set of exemplars; in which extraordinary case a possibility of mistake would have place; and perhaps it might even happen that the number in which in this case the marks were sufficiently clear, might not be quite so great as that of the copies taken. But in this case nothing could be easier nor more efficacious than the remedy: namely, a few words written on one of the leaves of the ulterior batch or batches, stating them not to belong respectively to the first.

Page 273. “The duplicates of registers of births, marriages and deaths, should be kept in the public office for the county in which they may be made.”

To this passage applies with equal propriety the observations made on the passages in p. 263 and 264; in which observation is stated the ground on which I concluded that what he assumed the existence of was, on each occasion, a not improbable demand for indefinitely large numbers of copies.

Page 276. “An official copy of any deed, will, or other document, might be given to any person entitled to an interest in the estate, and might be signed by the two clerks by whom it may have been examined with the original, and who should be liable to a penalty for every mistake in it.”

Thus far Mr. Tyrrell. Now then say I.—Where is the man that will undertake to set any and what bounds to the number of the copies which for this purpose it may happen to a will, for example, to present the need of, with the skilled labour necessary to the examination applied to each of them? that skilled labour to the inadequacy of which to the purpose of preventing evil consequences to an indefinite extent, you have just been seeing him bear such ample testimony? On the other hand, see how the case stands on the supposition of the writings being performed in the manifold mode: 8, 10, 12, or even if necessary as many as 14, written by one and the same hand, at one and the same time. I say 14: this is capable of being done; for this has been done. If of the whole number any one is correct, so are all the rest. If in any one there be any error, that same error has place in all the rest; and for the detection of it in them all, no skilled labour is necessary or of use.

Then as to the correction of these errors. With pen and ink, in the common way, correction made in the manner in which corrections are made in a proof sheet in printing having been made in any one of them, the number of words the aggregate of these corrections consisted of, would be all that would be to be copied in the others; and of these errors—one or all of them—how great soever may be the importance, not frequently can it happen that the number should be very considerable.

When the worst comes to the worst, all that would be to be done is, the copying over again such of the leaves, and such of them only, in which the errors make their appearance. And this is one advantage resulting from the moderateness and uniformity which may be given to the size of the leaves, whereas for anything that appears in the bill, the documents sent into the office for registration may be of the great and greatly diversified extent of which papers and skins of parchment are susceptible.

Page 278. “It would be convenient to require that every deed, will, or document, brought for registry, should be accompanied with a short synopsis or statement of the contents; in order that, when found to be correct, it might be copied into the register book, as a marginal index to the copy of the instrument, and also with such other description of the nature of the document as ought to be inserted in any of the indexes or books of reference.”

Supposing the sort of abridgment in question to be of use, and for facility of conception (it should seem) it would be—for so it is in the case of a bill and an act of parliament, it might be ordained to be made in the original, in which case it would have place of course in each of the several exemplars of it. But a standing and universally-applying rule should be enacted, declaring that no words employed in the abridgment shall be understood as influencing the construction to be put upon the text at large.

Will it be said that by the employing exemplars of the whole of each document instead of the proposed abridgment, the bulk of the aggregate number of the deposits would be swelled to such a degree, that the expense of the buildings necessary for the reception of them would be so great as to constitute a decisive objection against the use thus proposed to be made of the manifold mode? At any rate, this objection would not lie in the mouth of any man to whom (as in p. 275) the choice of having a building for each one of the forty-two counties, and the having but one for all the counties together, is stated as being nearly a matter of indifference.

On the plan proposed in the above extract, here would be for learned gentlemen the profit, and for unlearned parties the expense, of skilled labour to be employed in the drawing of these same synopses with the danger of errors therein occurring, and the certain expense of corrections to be applied to those same errors: in the case of the manifold exemplar of the document at large, no demand for any such synopsis, nor any possibility of any such errors.

Page 278. “The office,” he goes on to say, “might be divided into two departments, one for ascertaining the authenticity of documents proposed to be registered, and the other for preserving and affording facility of reference to them; and they might be so regulated that the one should afford a check against negligence or error in the other. The latter department might be divided into as many different offices as there are counties or ridings, including the cities and towns, which are counties of themselves in the districts in which they are locally situated: and there might be an additional office for such documents as relate to more than one county.”

Thus far Mr. Tyrrell. For my part, I do not clearly perceive the utility of this reduplication of the expense: still less the preponderance of the benefit in this case over the burthen: all that in relation to this matter I do clearly perceive is—that, by the use of the manifold, the expense, whatever it is, would be nearly, and the danger of error altogether, done away.

So much as to the notion about needlessness.

In fine, to the employment proposed to be given to the manifold mode of writing, is there now any really operative objection, other than that which is opposed by the fees, which by it would be kept out of the pockets of learned gentlemen, and kept from taking their departure out of the pockets of unlearned suitors?

While writing this, I am also employed on my plan for extinguishing the factitious delay, factitious and mis-sealed expense, with the thence-resulting sale and denial of justice. The manifold mode of writing applied to the minutation of evidence, is a means and instrument altogether indispensable, the employment of it a condition sine quâ non, to the giving to that unspeakably-important benefit the degree of perfection it is susceptible of: and of its usefulness with reference to that ulterior purpose, mention may be seen hereinabove made.

By adopting and exemplifying these my suggestions in relation to it, it depends upon you, gentlemen, to bring under the eyes of all whom it may concern, a demonstration of its practicability and usefulness, for that the most important of all purposes.

The subject-matter committed to our consideration (says somebody) is, not how justice may be administered at least expense, but how the respective owners of what is called real property may be best secured against the loss of it. True: but if the instrument in question, be it what it may, is good for the purpose in question, its being also good for another purpose, or for other purposes in any number, is most assuredly, to any intelligent mind, no reason why use should not be made of that same instrument to that same purpose.

Yes: should it (which I ardently wish that it may not, and venture to hope that it will not) be my misfortune, gentlemen, to see you wilfully suffering this grand instrument of justice and security to remain unemployed, for want of any endeavours on your part to give adoption and support to it, and the community to remain destitute of the benefit of which it affords so bright a prospect,—parliament, and through parliament, or without parliament, other nations as well as this shall hear of it; and to the latest posterity the shame of such a wilful neglect shall lie on the heads to which it belongs. No; never so long as I have a voice, or a pen, capable of giving utterance to these my wishes,—never shall cease my endeavours for the adoption of it—my incontestably just reproaches for the neglect of it.

VII.Object the Seventh.—Minimization of the burthen in the shape of expense, with which the benefit produced by registration is clogged.

Means of effectuation, these—

1. Burthen transferred from individuals to public.

The burthen thus transferred from the shoulders least able to the shoulders most able to bear it.

In the shape of fees, unless proportioned in each instance to the pecuniary ability of the individuals at whose hands respectively they were called for (which is what they could not be,) the burthen would, in so far as paid, press on each individual with a weight of affliction more and more heavy, in proportion as he was less and less able to bear it; and, in individual instances to an indefinite number, the individual not having wherewithal to pay the fee or fees, would exclude him altogether from all participation in the benefit of the institution.

For, to the smallness of the value of the subject-matter in question, no limit can be set.

In regard to feelings, what the smallness of the value in question is too apt to do—indeed, to a greater or less degree, it may be affirmed, has accordingly done,—in the breast of every public man by whom the matter has ever been taken into consideration, is, to diminish the idea of the pressure; and that in such sort as to exclude from his affections all regard for it: unhappily no such effect has it upon the feelings of the individual who is thus dealt with.

2.Fees, as above, none: remuneration of the functionaries, the whole of it, in another shape; namely, that of salary.

Of the importance of this object, considered in another point of view, namely, the minimization of the expense, whatsoever be the shoulders on which it is laid,—a view has been already given; that is to say, under the head of the first object—Expense minimized.

3.Means of communication for documents and other writings, the letter-post: thence, expense of separate communication through skilled labour, saved.

In the bill, I have the satisfaction of seeing this mode of communication ordained to be employed. How well adapted it is to this purpose, and how prodigious the saving made by it, in comparison with that mode of communication, by special messengers, which is employed where law proceedings are the subject, has been abundantly shown, and is much too abundantly felt.

In a work of mine, intituled Petitions for Justice and Codification,—namely, in p. 158 of the Petition for Justice, art. 9, of the part, which has for its subject-matter the judiciary establishment,—a proposition to this effect is contained: “That, for trustworthiness and economy,” (says the passage in question) “the business of message-carrying be, as far as may be, performed by the machinery of the letter-post.”

Gentlemen! I have now said my say. For your part, you have a choice to make: you will either break your engagement and consign these pages to oblivion, or keep to your engagement, and to this address, presumptuous as it is, give publication in your next report. Dixi.Jeremy Bentham.

Queen’s Square Place, Westminster,

4th July 1831.

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 THEY ARE SUBJECTED TO UNJUST PUNISHMENTS, AND DEPRIVED OF THE BENEFIT OF THEIR RIGHTS.

DRAFTS FOR THE ABOVE PROPOSED PETITIONS,

BY JEREMY BENTHAM.

JUSTICE AND CODIFICATION PETITIONS.

ADVERTISEMENT.

Contained in the present publication are three papers:—

Paper the first, Proposed Petition for Justice, at full length.

Paper the second, Proposed Petition for Justice in an abridged form.

Paper the third, Proposed Petition for Codification.

I. Petition for Justice at full length. Parts of it these:—

Part I. Case made:—Grounds of the hereby proposed application to the House of Commons: inaptitude, to wit, of the existing system of judicial procedure, with reference to its alleged and supposed ends, as also of the judicial establishment occupied in the application of it: proofs, the several heads and instances of abuse and imperfection, which are accordingly brought and held up to view.

Part II. Prayer consequent:—Remedy proposed, for the disorder composed of those same abuses and imperfections.

Prayer, its parts,—

Part 1. Outline of the proposed judicial establishment.

Part 2. Outline of the proposed system of procedure. Model, the domestic system: that, to wit, which is pursued of course by every intelligent father of a family, without any such idea as that of its constituting the matter of an art or science: sole difference the necessary enlargement and diversification, correspondent to the difference in magnitude between the two theatres.

II. Petition for Justice in an abridged form. Parts of it these.—

Part I. Abridgment of the case part of the full-length petition.

Part II. Prayer part. Matter of it the same, word for word, as that of the full-length petition: reference accordingly sufficient; repetition, needless.

Reasons for the two different forms, these:

1. In the full-length petition, number of the pages, as will be seen 207. Cumbrous would an instrument of this length be, if presented in the only form in which it would be received,—cumbrous, and that to such a degree, that its bulk might of itself be found an insurmountable obstacle to its being carried about for signature. This form is—that of a roll of parchment, composed of skins tacked on, one to another; length, whatever is necessary for receiving the signatures, in addition to the matter of the petition.

2. Compared with that of the abridged instrument, the expense of the operation of engrossing would of itself be a serious obstacle.

3.Readers in greater numbers—readers and thence signers, may of course be expected for the shorter than for the longer instrument: to each reader the two will here present themselves for choice.

For reading, the instrument presented to a person looked to as disposed to promote the design, will be of course a printed copy of this work. In this way it is perusable by any number of persons at the same time; while, if there was no other copy than the above-mentioned roll, years might elapse before this instrument could pass through the number of hands in succession, to each of whom a single day might suffice for the persual of a copy of it.

III. Petition for Codification. Intimately connected is the subject-matter of this petition with that of the petition for justice. No otherwise than by codification can the reform here prayed for—or any effectual reform in any shape—be carried into effect. A petition, in the terms here seen, having been honoured by the approbation of Mr. O’Connell, has by that gentleman, as a letter of his informs the author of these papers, been put into the hands of the Catholic Association for the purpose of its being circulated for signatures.

Of this publication—the ultimate object being the engaging Parliament to take into consideration the subject matter of it, the immediate and instrumental object is, the engaging individuals to concur, by their signatures, in the endeavour to induce Parliament to take the desired course.

Persons looked to for signatures, who? Answer: Every person, in whose breast any such desire has place as that of seeing made, in relation to any subject-matter touched upon by it, any change not looked for by him from any other source: any change whatsoever, be the complexion of it ever so different from, or ever so opposite to, that of the change here proposed.

What? (says somebody)—co-operation expected from persons entertaining desires directly opposite? Yes, even from them. How so? Because, supposing Parliament taking the matter into consideration,—to each person, for the seeing such his own desires gratified, would thus be afforded a chance, such as he would not possess otherwise.

But if, at the hands even of persons entertaining opposite views and wishes, such co-operation may not unreasonably be expected, with how much stronger assurance may it be expected at the hands of persons whose views and wishes are more or less in accordance with what is here endeavoured at?

Now as to the ground of expectation in regard to Parliament. This is the distinctive character of the present work, presenting, as it does, in addition to the statement, and that an all-comprehensive one, of the alleged disorder, a proposed remedy. So far as regards the mere disorder, the work is an operation, an easier than which could not easily be found: at no time can any hand be incompetent to it. While, in any such task, as that of the exhibition of a remedy so much as approaching to co-extensiveness with the disorder, no ground appears for supposing any other hand at present engaged,—or, without invitation, likely in any way to engage.

This or none, such alone is the option presented to every person on whose part any disposition has place to employ his signature in applying to the disorder its sole possible remedy. To wait till a draught to this extent presented itself, to no part of which he saw anything to object, would be to wait till the end of time!

In regard to codification, included in the object of this publication, is, it will be seen, not only the presenting to view the fruit of the author’s own labours, but the engaging other candidates in the greatest number obtainable in the same, so supremely and all-comprehensively important, service.

Nor to this purpose is the same sanction of authority altogether wanting. By implication at any rate, codification has in its favour the declared opinion, and recommendation of the Real Property Commissioners: witness the questions circulated by them. Sufficiently manifest at any rate is the recommendation, while, in pursuance of their labours, something should be done. But by Parliament, whatever it be, either by codification or not at all, will it have been done: and whatever be the length to which this indispensable operation has been carried—why it should stop there or anywhere short of completion, is a question to which it rests with any declared opponent of codification to find, if it be in his power, anything like a rational answer: by his refusal to answer it, or his silence, in relation to it, judgment of inconsistency against him will be signed.

These things considered, requisite assurances are not wanting, that as soon as the press of more urgent business admits, the matter of both petitions will, by appropriate motions, be brought to the view of the Honourable House.

Instructions as to the mode of proceeding for obtaining signatures.

Provide a skin of parchment, tack to it, one after another, others in sufficient number to contain the matter of the petition, with the addition of signatures in such number as you expect to obtain for it. A thing desirable is, that all persons who join in the petition may be distinguished, each one from any other: for this purpose, let each subscriber add to his name at length an indication of the place of his abode. If it be where there is not a town, the name of the county and the parish will be the proper mode of designation: if in a town, the name of the town, with that of the street or other mode of address, employed in sending a letter by the post. To save bulk and expense,—divide the roll into parallel columns, each of them wide enough to receive a signature of an average length, in which case, when it exceeds that length, two lines will always be necessary, though commonly sufficient. To each signature prefix a number expressive of the order in which it stands.

As to the instrument thus employed—in general, if not exclusively—it will be the abridged petition: the full-length petition being much too large, and the transcription of it too expensive, for general use. To any person disposed to use his endeavours to obtain signatures for the longer petition, should it present itself as being too long, an easy operation it will be to strike out of it such parts as, it seems to him, can best be spared. Where any abridged petition is the one employed—in this case, a copy of the petition at length, as printed, should be left with the person applied to, that he may peruse it, if so inclined, before the roll is put into his hands for signature.

Of the opposition which every such coadjutor has reason to expect, it is material that he should be sufficiently aware. From all persons to whom any change in the existing system would be an object of regret, such is the reception which should of course be looked for and provided against: and in this number are included of course all those by whom, to any amount, in any shape, in any way, direct or indirect, profit is derived, or thought by them to be derived, from any abuse or imperfection, to which, by the proposed draught, a remedy is endeavoured to be applied: more particularly all attornies or solicitors, as of late years they have been called, and persons especially connected with them by any tie of interest or relationship, not to speak of judges, other persons belonging to the judicial establishment, and barristers.

Nor as to the whole class, and its several ramifications, let it ever be out of mind, that, on their own principles, by their own showing, being incontestably interested, they are, one and all, in relation to this matter, not to speak of so many other matters, to use their own language, so many incompetent, incredible, and altogether inadmissible witnesses.

Of this publication one natural effect is the producing addresses, in one way or other, to the author, from correspondents, to the number of whom no certain limits can be predicted, and which, if precautions were not taken, might be such as to be oppressive. For, so it is, that whatever probability there may be of the presentation of petitions, or though it were no more than a single petition, in the course of the present session, the like probability may continue during an indefinite length of ulterior time: but for the arrangement thus requested, this publication might therefore have for one of its effects the imposing upon the author a charge to an indefinite amount, and not terminating but with his life.

On this account it is requested that no communication be addressed to the author but through the medium of the bookseller: nor to the bookseller, but either post paid, or accompanied with an order for a copy of the work.

Lastly, as to the usefulness of this production, and the endurance of which it is susceptible. To those whom the design may be fortunate enough to number amongst its well-wishers, and the production among its approvers, a consideration that cannot fail to be more or less agreeable is,—that, whatsoever may be its capacity for attracting signatures, the same may remain to it during an indefinite length of time: and that so long as the remembrance of this publication lasts, no one to whom the existing self-styled instrument of security is a source and instrument—of depredation, of oppression, in a word, of injury in any shape, can be in want of a ready vehicle for the communication of his complaints.

PRELIMINARY EXPLANATIONS NECESSARY TO BE FIRST READ.

1.In the introductory advertisement will have been seen, the consideration which gave birth to the proposed abridged petition for justice, in addition to the full-length petition.

2. When that advertisement went to the press, the drawing up of the abridged petition had proceeded about half way: and, from the progress at that time made had been deduced an assurance, delusive as it has proved, of completing it within the desired compass: the compass, both as to time and space.

3. From that time, the further this part of the work went on, the less apposite was perceived to be the appellative abridged, by which it had been originally designated: till, at length, instead of the one operation abridgment, four distinguishable ones—subtraction, addition, repetition, substitution,—were the operations found to have been performed.

4. Of this variety of operations,—imperfection, in respect of clearness, conciseness, and methodical order, on the part of the draft, considered as a literary composition, has been the indispensable consequence. But, should it be seen, as the author trusts it will be, that without detriment to the practical purpose, no different course could have been pursued,—no material dissatisfaction on the part of the reader will, it is hoped, have place.

5. Practical end or purpose,—change for the better: means employed,—maximizing the number of the persons known to entertain the desire of seeing such change take place: mode of making this desire known,—attachment of each one’s signature to some copy of a petition praying for such change.

6. Now, then, for maximizing the number of signatures, one means is—the maximizing the number of copies, offered for the reception of those same signatures. But, by the bulkiness of the aggregate mass of the matter by which the reasons for the change stand expressed, will the end and purpose be obstructed? No: it will be promoted. How so? Answer: Because the instrument may be cut into smaller instruments, in any number, to each of which, signatures may be found obtainable, from persons from whom this expression of concurrence would not have been obtainable for any one other of these same component parts, much less for the whole.

7. Now, then, as to the particular use and purpose of the two here proposed instruments—full-length and abridged petitions—taken together. This was—the maximizing the number of the arrangements in the existing system, seen by the several readers to be adverse to the ends of justice; to which end, a means manifestly conducive was—the tying up, as it were, of those same arrangements into bundles, characterized and distinguished from each other by appropriate names. This, accordingly, is what has been done by the list of devices.

8. Considerations, showing the course actually pursued to have been the most conducive that could have been pursued, the following:—

9. In proportion as the operation went on,—matters of detail, deemed, all of them, contributory to the common ends, but which had not, all of them, presented themselves at the time of drawing up the first-drawn petition,—came into view. By exclusion put upon any of these additional grounds and inducements, would the chance for the attainment of the common end have been increased? No, surely.

10. True it is—that, in the ordinary case of an abridgment,—between clearness and conciseness, a mutual repugnancy has place: as conciseness is increased, clearness is diminished. But, in the present case, happily no such repugnancy has place: no mutual counteraction but what is capable of being effectually got rid of. Decomposition, as above, is the operation by which this reconciliation is capable of being effected; and is accordingly here proposed to be effected.

11. Now as to the course which may be seen actually taken, as above, in pursuance of the design of abbreviation. First came condensation; as in the ordinary case of an abridgment: then, simple elimination, or say subtraction, applied to certain paragraphs belonging to the device in question: lastly, elimination applied to the whole of the matters contained under the head of a Device. In this last way may be seen dealt with three devices: namely, Device XI. Decision on grounds avowedly foreign to the merits; Device XII. Juries subdued and subjugated; and Device XIV. Result of the fissure (in Device XIII. mentioned) groundless arrestation for debt. As the pressure produced by the influx of additional matter increased, these more and more efficient modes of reduction may be seen successively employed.

12. The two drafts taken together being in this state, comes now the question—of the compound mass—any and what portion is there, that can with truth be pronounced useless? Answer, Yes: namely, the aggregate of the paragraphs reprinted without variation.

After this deduction, every other assignable portion of the matter may be stated as having its use.

13. The case in which, if at all, the correctness of this proposition will be most questionable, is that in which, of two paragraphs, the one is, as above, but a condensation of the other: but, even in this case, so it may be, that the one of them may be the most apt in the eyes of one set of proposed subscribers; the other, in the eyes of another such set.

14. In the disposition made of the matter of the original draft,—and thereafter of that of the abridged draft,—a method, as serviceable as it was in the author’s power to give, has been given to it. But now—take the worst case that can have place. Suppose nothing to have place that can have any claim to the appellation of method:—the whole matter—is it useless, and the labour thrown away? By no means.

15. For, the purpose being to prevail upon the constituted anthorities to take the whole of the mass of existing law in question for the subject matter of consideration—and this for the purpose of reform and amendment,—of no blemish in any shape, can any indication, in any language or form, be given, that will not be more or less contributory and conducive to the purpose.

16. Upon the whole,—proposed for the choice of all persons, disposed to be contributory to the proposed design, by framing drafts for circulation, for the purpose of obtaining signatures, will be—the options, examples of which are the following:—

I. To employ the full-length draft, without alteration, as it stands.

II. To employ the abridged draft, without alteration, as it stands.

III. To employ either draft, with amendments, such as may appear meet: amendments, whether additive, subtractive, or substitutive.

IV. To form drafts of their own; composed of matter—none of it contained under any of the heads employed in the above drafts.

V. To form drafts, composed of matter of their own, with or without use made of those same heads, and with or without insertion, declaredly given to more or less of the matter contained under them.

VI. To frame drafts composed of matters exclusively their own, without reference made to, or use in any way made of, any part of the matter contained in either of these same drafts.

17. Of these several options (to which others might have been added) the one last mentioned (it will of course be supposed) is not of the number of those which the author expects to see embraced. But, even supposing it were,—whatsoever be the number of the drafts, thus framed, and, with attached signatures, presented to the constituted authorities,—correspondent will be the service rendered to the cause of reform and improvement by these pages.

18. A lottery (suppose) set up; and paragraphs of the abridged petition, some or all of them, drawn out of it, and written down on the roll in the order assigned to them by fortune,—even in this case, a petition, so framed and thereupon signed, would not be altogether without its use.

19. So long as that most all-comprehensive, most grinding, and most crying of all grievances—the tyranny of judge-made law—continues unredressed,—the correspondent public service unperformed—so long as the torrent of human misery, flowing from it, keeps running on;—be the number of ages during which it will have continued ever so great, never will the use, whatever it be, which the matter of these proposed petitions is capable of being put to, be at an end.

20. To the care of posterity, should the time not be yet ripe, the author will recommend this matchless service with his dying breath.

21. Hapless individual, whoever you may be, whose lot it is to behold your means of subsistence torn from you, and plunged into the gulph called by a cruel mockery a court of equity, there to be devoured by the appointed sharks,—in these pages you may at all times see samples—samples ready made—of the only sort of instrument, which it is in your power to make application of, in the character of a remedy:—with this in hand, you may go about, and look about, for assistants and coadjutors, in those companions in misery, whom, in such deplorable abundance, you will behold presenting themselves all around.

22. Nor, while for companions in misery you look sideways, forget to look upwards, for the authors—cruel hypocrites, in pretence alleviators—in reality preservers—of all parts of it anxious and industrious preservers, when neither creators nor exacerbators.

23. But (says somebody) is there not one still better course left, which you might have taken, and which is still left open to you to take? From the matter of the original full-length petition and the abridged petition taken together, might not you have drawn up—might not you even now draw up—a new draft, consigning to the flames both the existing ones? Answer: By time and expense taken together, intimation is given of two objections, the first of which might of itself be conclusive: considering that, during the time thus occupied in an operation little better than mechanical, all other works, of greater usefulness in this same time, would be at a stand.

24. But another answer still more conclusive, and it is hoped satisfactory, is this. By no means, by any such ulterior and amended abridgment, would the purpose of it be answered. For, while for the purpose of it, a survey were taken of the field, fresh weeds would be seen springing up, and pressing themselves upon the extirpating hand. In this way, after enlarged as well as abridged editions, in any number—each superseding all former ones,—still the demand for another and another would be presenting itself: nor, for the consumption of labour, time, and money, would the demand cease, till the work, of which an outline, and nothing more, is here professed to be presented, had been brought to a state regarded as a state of completeness.

25. Suppose it now in that state, the following is the form in which it would present itself to view: of the here-proposed system, the part called the prayer, in the very words, or as lawyers say, tenor of it, occupying the foremost places: but, by the side of it, all along, a delineation of the several correspondent features of alleged inaptitude, ascribed to the existing systems: to the principal text would thus be subjoined a sort of perpetual commentary thus composed.

26. In conclusion, a word or two as to the numerical figures, which, in the abridged petition, stand prefixed to the paragraphs: in the abridged petition only; in the original one not; the demand for that help to reference not having as yet presented itself to view.

27. For all but the two first of the above proposed six options, indisputable assuredly is the facility that will be found afforded by this little additament. Witness, sad experience of the result of the non-employment of them. By means of these instruments (than which nothing can be more familiar or indispensably useful,—or even, by the constituted authorities themselves, more universally applied to portions of the matter of law,—except where the production of uncertainty and mistake is among the objects aimed at) reference is, in the concisest manner possible, made to any assemblage of words whatsoever, without danger of mistake:—without them, mistake and uncertainty may, to any amount, be produced.

28. Accordingly, wherever, in relation to a law or a body of laws, to maximize the execution and effect given to it is really an object of desire,—numerical figures, prefixed to the several portions of discourse, are the instruments employed. Witness the practice in every civilized part of the globe; England—lawyer-ridden England—alone excepted.

29. On the other hand, wherever the design entertained is—the giving increase to such uncertainty, with its attendant miseries,—objects in view the benefit of the lawyer class, and those connected with it by any community of sinister interest,—the use of this, together with so many other instruments of certainty, is pertinaciously and inexorably abstained from: imitated thus the fabled barbarity of Mezentius: kept bound up in the closest contact with carcases in an ambiguous state between life and death, is the whole stock of those statutes, which are still designed, as well as destined, to be employed as living ones. Witness the latest of the string of bills, framed exactly as if they had for their object, on pretence of diminution, the augmentation and perpetuation of depredation and oppression. “Repealed—such an act (thereupon designated by its long and wordy title,) and such an act (designated in the same conception-confounding manner) and so much of such an act—in like manner designated.”—So much? How much? Learned sir! Right honourable sir! whichever be your right name—render it possible for us to know how much: instead of consigning to complete ruin, by alleged mistake as to the how much, on the part of a wretch, who has been half ruined by some petty tyrant, clothed in the authority of a justice of the peace, at whose charge, on the faith of parliament, that compensation has been sought, which would not have been promised, but for the foreknowledge that it would never be granted.—“So much?”—Once more, how much?—Till of late, followed upon the words “so much” the words “as relates to the subject of . . . . :” whereupon came some sort of designation given of it. Now, even this clue is refused, and the passage evaporates in nonsense.

30. To these figures,—when the question was as to the mode of preparing drafts for receiving signatures,—an objection was made on the ground of unusualness. To the quarter from whence the objection came, nothing short of the most respectful attention could be paid. But the use, to which on that occasion it was destined, was no other than that of being applied to an instrument which was then actually in a state for receiving signatures: and to which accordingly, references, for any such purpose as the one then in question, were not intended to be made. Of these instruments of clarification, the use and purpose here in question is—the subjecting to decomposition the supposed too bulky bodies,—that out of them, other bodies in any required number, polype like, might be framed. But, in the case here alluded to, no such decomposition was contemplated.

Comes now another use, of these small but effective instruments of precision: call it, for example, the argumentative, or argument-assisting use: calling, for distinction’s sake, the one first mentioned the simply indicative. Of these same little instruments is constituted a support—and that a matchless one—for close reasoning.

32. Pitiable, in good truth, will be seen to be the condition of the disingenuous opponent, who, casting an eye on a body of argument which he stands engaged to encounter and attack, beholds it armed with them. Thus distributed into so many articulate parts,—for the clear, correct, and complete designation of each of which, a single word is effectually sufficient,—the discourse, be it what it may, presents to him, in each part of it, a determinate and never-misapprehensible object and standard of reference. “Here, sir, is proposition the first. What say you to it? has it your assent? has it your dissent? If your dissent, for what reason or reasons?” Unapprised of the existence of these defences,—he comes (suppose) with his quiver full of devices borrowed from the Book of Fallacies. See, then, the condition in which he finds himself. Instead of doing as he had flattered himself with doing,—instead of shooting fallacies into the middle of the discourse at random,—or enveloping the whole expanse of it, as it were, in a net,—he feels himself pinned down, under the pressure of a most distressing alternative. Taking in hand the chain of discourse,—either he must grapple with the links which it is thus composed of, one after another,—or remain motionless:—remain motionless; and thus, by a token more unequivocal and demonstrative than it is in the power of words to be, acknowledge the object of his hostility to be unassailable.

Nothing can he say—(for such is the supposition, and this is a supposition which may continually be seen verified)—nothing can he say, but what is to be found in this or that chapter, section, and article of the Book of Fallacies: some article, in and by which, before he ever took this device of his in hand, it may be seen ready confuted. Looking at the mark,—nothing can he find to hit it with, but some witticism—some well-worn piece of nothingness—some vague generality—which,—like a cloud,—dark or more or less brilliant,—hanging in the air,—is seen to have no substance—nothing that can be brought to bear upon the object of his warfare.

33. “Well, sir,”—says now to him the master of fair and close reasoning:—“here, sir, is the proposition: what say you to it?”—What! nothing? a man—for ingenuity and promptitude so highly distinguished, kept mute by prudence, because unable to find anything which a man could utter without shame?—What! still silent? Well, then: the demonstration is complete: the proposition uncontrovertible. Yes, altogether uncontrovertible; since you, sir, even you, can find nothing to object to it.

34. Think now, once more, of the condition of the disingenuous and self-condemned would-be assailant,—when, by every fresh proposition, he beholds a fresh triumph over him thus secured.

☞ After writing what is above, came the conception and the hope, that an additional optional petition might have its use: and that,—by the same observations, by which explanation and justification have been given to the two first,—the like service might in a sufficient degree be rendered to this third: by the title of the More Abridged Petition, it is accordingly subjoined.

PETITION FOR JUSTICE.

To the Honourable the House of Commons in Parliament assembled.

Justice! justice! accessible justice! Justice, not for the few alone, but for all! No longer nominal, but at length real justice! In these few words stands expressed the sum and substance of the humble petition, which we, the undersigned, in behalf of ourselves and all other his Majesty’s long-suffering subjects, now at length have become emboldened to address to the Honourable House.

At present, to all men, justice, or what goes by that name, is either denied or sold; denied to the immense many—sold to the favoured few; nor to these, but at an extensively ruinous price. Such is the grievance.

As to the cause, it is undeniable. Power to judges to pay themselves—to pay themselves what they please, so it be at the expense of suitors.

The denial and the sale follow of necessity. Be the pay in each instance but a farthing, to all that cannot pay the farthing, justice is denied: to all those who can and do pay the farthing, sold.

And the persons on whom alone this burthen is imposed, who are they? Who, but the very persons, who alone, were the exemption possible, should be exempted—altogether exempted from it. Distinguished from all other persons are suitors, by the vexation which, as such, they endure. The security, whatever it be, which, by this vexation, these so dearly pay for, all others enjoy without it; and on each man, the greater the vexation in other shapes, the higher (it will be seen) is the tax; for the longer, and thence the more vexatious, the suit, the more numerous are the occasions on which payment of this species of tax comes to be exacted.

What if this faculty of setting, in the same way, their own price upon their own service, were given—(and why might it not as well be given?)—to functionaries in other departments?—say, for example, the military. The business of military functionaries is to give security against external, of judiciary functionaries against internal adversaries. What if to the army power were given to exact whatever contributions it pleased, so it were from those alone who had been sufferers from hostile inroads? By those military functionaries this power has not ever been received; by judiciary functionaries it not only has been received, but to this day, continues to be exercised.

The tax called ship-money found a Hampden to oppose it; to oppose it at the expense, first of his money, then of his life. Neither in its principle was that same ship-money so absurd, nor in its worst natural consequences would it have been, by a vast amount, so mischievous, as this justice-money, for so, with not less propriety, might it be called. Ship-money produced its Hampden: the Hampden for justice-money is yet to seek.

Taxes, imposed on suitors at the instance of ministers were bad enough; but they are not, by a great deal, so bad as those imposed by judges. Ministers cannot, without the sanction of Parliament, give increase to taxes imposed at their instance. Judges can, and do give increase, at pleasure, to taxes imposed for their own emolument, by themselves.

Out of our torments they extract their own comfort; and in the way in which they proceed, for each particle of comfort extracted for themselves, they, of necessity, heap an unmeasurable load of torment upon us. By every fee imposed, men, in countless multitudes, are, for want of money to commence to carry on a suit, deprived of rights to any amount, and left to suffer, without redress, wrongs to any amount; others made to suffer at the hands of judges, for want of the money necessary to enable them to defend themselves against unjust suits.

In all other cases, the presumption is, that, if left to himself, man will, upon each occasion, sacrifice to his own, every other interest; and upon this supposition are all laws grounded: what is there in irresistible power, wrapt in impunity, that should make it—what is there in an English judge that should make him—an exception to this rule?

Such being the grievance, and such the cause of it, now as to the remedy. The cause we said, for shortness; the causes, we should have said, for there is a chain of them; nor till the whole chain has been brought to view can any tolerably adequate conception be entertained of the sole effectual remedy—the natural substituted to the existing technical system of procedure. Cause of the oppositeness of the system to the ends of justice, the sinister interest on the part of the judges, with whom it originated. Cause of this sinister interest, the mode of their remuneration: instead of salary paid by government, fees exacted from suitors. Cause of this mode of remuneration, want of settled revenue in a pecuniary shape: for military and other purposes, personal service rendered to government, being paid for, not in money, but in land. Cause of this mode of payment, rude state of society in these early times.

But for the Norman conquest, no such sinister interest, in conjunction with the power of giving effect to it, would have had place. At the time of that disastrous revolution, the local field of judicature was found divided into small districts, each with its appropriate judicatory; still remaining, with small parcels, or faint shades of the power, are the denominations of those judicatories, county courts, for example, hundred courts, courts leet, courts baron. In each such district, in the powers of judicature, sharers (in form and extent not exactly known) the whole body of the freeholders. Form of procedure, the natural, the domestic; natural—that is to say, clear of all those forms by which the existing system—product of sinister art, and thence so appositely termed the technical—stands distinguished from it: forms, all of them subservient, of course, to the ends of judicature; all of them opposite, as will be seen, to the ends of justice.

Let not any such charge as that of unwarrantable presumption attach on the views, which we, your petitioners, venture thus respectfully to submit to the Honourable House. Be the occasion what it may,—when by numerous and promiscuous multitudes, expression is given to the same opinions, as well as to the same wishes, unavoidably different are the sources from which those opinions and those wishes are derived: in some reflection made by themselves; in others, confidence reposed in associates. Among those in whom, on the present occasion, the necessary confidence is reposed, are those, the whole adult part of whose lives the study of the subject has found devoted to it.

History and description will now proceed hand-in-hand. As it was in the beginning, so is it now. How things are, will be seen by its being seen how they came to be so. To the arrangements, by which the existing system has been rendered thus adverse to the ends of justice, will be given the denomination of devices: devices, having for their purposes the above-mentioned actual ends of judicature: and under the head of each device, in such order as circumstances may in each instance appear to require, the attention of the Honourable House is solicited for the considerations following:—

1. Mischievousness of the device to the public in respect of the adverseness of the arrangement to the ends of justice.

2. Subserviency of the device to the purposes of the authors—that is to say, the judges, and others, partakers with them in the sinister interests.

3. Impossibility that this adverseness and this subserviency should not have been seen by the authors.

4. Impossibility, after this exposure, that that same adverseness should not now be seen by those to whom the device is a source of profit.

5. Incidentally, originally-established apt arrangements, superseded and excluded by the device.

The ends of justice, we must unavoidably remind (we will not say inform) the Honourable House—the ends of justice are,—1. The giving execution and effect to the rule of action; this the main end; 2. The doing so with the least expense, delay, and vexation possible; the collateral end.

In the main end require to be distinguished two branches: 1. Exclusion of misdecision: 2. Exclusion of non-decision. Non-decision is either from non-demand or after demand. The first case is that of simple denial of justice: the other case is that of denial of justice, aggravated by treachery and depredation to the amount of the expense: of the collateral end, the three branches, delay, expense, and vexation, have been already mentioned.

To these same ends of justice, correspondent and opposite will be seen to be the ends—the originally and still pursued actual ends—of judicature: from past misdecision, comes succeeding uncertainty; from the uncertainty, litigation: from the litigation, under the existing fee-gathering system, judge’s profit: from the expense, in the more immediate way, that same sinister profit: from the delay, increase to expense and thence to that same profit: from the expense and the delay vexation: this not indeed the purposed, but the unheeded and thence recklessly increased result. Of the non-decision and the delay, ease at the expense of duty will moreover, in vast proportion, be seen to be the intended, and but too successfully cultivated, fruit.

Manner, in which this mode of payment took place, this. Originally, king officiated not only as commander-in-chief, but as judge. From this reality came the still existing fiction, which places him on his own bench in Westminster Hall, present at every cause.

At the early period in question, in the instruments still extant under the name of writs, king addresses himself to judge, and says—“These people are troublesome to me with their noise: see what is the matter with them and quiet them—ne amplius clamorum audiamus.”

Thus far explicitly and in words. Implication added a postscript: “This will be some trouble to you; but the labourer is worthy of his hire.”

Nothing better could judge have wished for. All mankind to whom, and all by whom injury had been done or supposed to be done, were thus placed at his mercy: upon the use of his power, he had but to put what price he pleased. To every one who regarded himself as injured, his assistance was indispensable: and proportioned to plaintiff’s assurance of getting back from defendant the price of such assistance, would be his (the plaintiff’s) readiness to part with it. To the defendant, permission to defend himself was not less indispensable. As to pay, all the judge had to choose was between high fees and low fees. High fees left at any rate most ease; but the higher they were, the less numerous: the lower, the more numerous the hands by which they could be paid. Thus it was that, by kings, what was called justice, was administered at next to no expense to themselves, the only person, by whom the burthen was borne, being the already afflicted. Bad enough this; but in France it was still worse. Independently of the taxes, imposed under that name directly, on the proceedings, profit by sale of the power of exacting the judge’s fees, was made a source of revenue: and hence, instead of four benches with one judge, or at most four or five judges on a bench, arose all over the country large assembly rooms full of judges, under the name of parliaments.

Of the Devices to which we shall now intreat the attention of the Honourable House, the following are the results:—

I. Parties excluded from judges’ presence.

II. Language rendered unintelligible.

III. Written instruments, where worse than useless, necessitated.

IV. Mendacity licensed, rewarded, necessitated, and by judge himself practised.

V. Oaths, for the establishment of the mendacity, necessitated.

VI. Delay in groundless and boundless lengths, established.

VII. Precipitation necessitated.

VIII. Blind fixation of times for judicial operations.

IX. Mechanical, substituted to mental judicature.

X. Mischievous transference and bandying of suits.

XI. Decision on grounds avowedly foreign to the merits.

XII. Juries subdued and subjugated.

XIII. Jurisdiction, where it should be entire, split and spliced.

XIV. Result of the fissure—groundless arrests for debt.

Explanations (we are sensible) are requisite: explanations follow.

I.

Device the First—Parties excluded from judges’ presence.—Demandant not admitted to state his demand; nor defendant his defence: admitted then only, when and because they cannot be shut out: admitted, just as strangers are: admitted without the power of acting for themselves.

In this device may be seen the hinge, on which all the others turn: in every other, an instrument for giving either existence or effect, or continuance to this indispensable one.

Only by indirect means could an arrangement so glaringly adverse to the ends of justice have been established: these means (it will be seen,) were the unintelligible language and the written pleadings.

At the very outset of the business, the door shut against the best evidence: evidence in the best form, from the best sources. No light let in, but through a combination of mediums, by which some rays would be absorbed, others refracted and distorted.

No information let in but through the hands of middle men, whose interest it is that redress should be as expensive, and for the sake of their share in the expense, as tardy as possible.

For what purpose but the production of deception by exclusion put upon truth, and admission given to falsehood, could any such arrangement have been so much as imagined?

For terminating a dispute in a family, was ever father mad enough to betake himself to any such course? Better ground for a commission of lunacy would not be desired; no, not by any one of the judges, by whom the profit from this device is so largely reaped.

Upon each occasion, the father’s wish is to come at the truth: to come at it, whatever be the purpose: giving right, giving reward, administering compensation or administering punishment. The father’s wish is to come at the truth: and the judge’s wish—what else ought it to be? For coming at the truth, the means the father employs are the promptest as well as surest in his power: what less effectual means should be those employed by the judge?

Forget not here to observe how necessary the thus inhibited interview is to the ends of justice—how necessary accordingly the prevention of it to the actual ends of judicature.

Where the parties are at once allowed and obliged, each, at the earliest point of time, to appear in the presence of the judge, and eventually of each other; where this is the case (and in small-debt courts it is the case,) the demandant of course brings to view every fact and every evidence that in his view makes for his interest: and the defendant, on his first appearance, does the like. If the demand has been admitted, demandant applies himself to the extraction of admission from defendant, defendant from demandant. Original demands—cross demands—demands on the one side—demands on the other side—relevant facts on one side—relevant facts on the other side—evidence on the one side—evidence on the other side—all these grounds for decision are thus at the earliest point of time brought to the view of the judge; and, by anticipation, a picture of whatsoever, if anything, remains of the suit, pourtrayed in its genuine, most unadulterated, and most instructive colours.

Of the goodness or badness of each suitor’s cause, of the correctness or incorrectness of his statements, all such evidence is presented to the judge’s view, as it is in the nature of oral discourse, gesture, and deportment, to afford.

As to mendacity, say, in the language of reproach, lying, licence for it could no more be granted to a party, in this supposed state of things, than to a witness it is in the existing state of things.

Continue the supposition. For the truth of whatever is said, every man by whom it is said is responsible. From the very first, being in the presence, he is in the power of the judge. Moreover, for continuing such his responsibility as long as the suit renders it needful, a mode of communication with him may be settled in such sort, that, for the purpose of subsequent operations, every missive, addressed to him in that mode, may, unless the contrary be proved, be acted upon as if duly received.

In the judicatory of a justice of peace, acting singly, and in a small-debt court, conducted in this way, many and many a suit is ended almost as soon as begun: many a suit, which, in a common-law court, would have absorbed pounds by hundreds, and time by years; and, after that, or without that, in an equity court, pounds by thousands, and time by tens of years; as often as, upon the demandant’s own showing, the demand is groundless, to him, who, under the present system, would be defendant, all the expense, all the vexation, attached to that calamitous situation, would be saved.

To go back to the primeval period, which gave rise to this device, where, in a countless swarm, fee-fed assistants and they alone had to do the business with their partner in trade, the fee-fed judge, the reverse of this took place; and continues to have place of course. Everything was and is kept back as long as possible: operation was and is made to follow operation—instrument, instrument—that each operation and each instrument may have its fees. On the one hand, notices, rendered as expensive as possible, are sent for the purpose of their not being received: on the other hand, of notices that have been received, the receipt is left unacknowledged or even denied, and in either case assumed not to have place.

True it is, states of things there are, in which, either at the outset, or at this or that time thereafter, neither in the instance of both parties, nor even of either party, can the appearance in question have place. For a time longer or shorter, by distance, or by infirmity, bodily or mental, a party may stand debarred altogether from making his appearance before the judge; or though appearing, the aid of an apt assistant may be necessary to him. When the party interested is a body corporate, or other numerous class, composed of individuals assignable or unassignable, of agents, and other trustees of all sorts, the attendance may, at the outset or at some later period, be necessary, with or without that of their respective parties.

But, whatever be the best course, the impracticability of it, in one instance, is it a reason for not pursuing it, as far as practicable, in any other?

Under the system, in its present state, certain sorts of suits there are, to which the exclusion does not apply itself. What are they? They are suits in which, if thus far justice were not admitted, the exclusionists might themselves be sufferers: suits for murder, theft, robbery, housebreaking, and so forth. Judges, whether they have bowels or no, have bodies: judges have houses and goods. A year or two at common-law, ten or twenty years in equity, would be too long to wait, before the criminal could be apprehended. But, that purpose accomplished, off flies justice: six months or twelve months, as it may happen, the accused lies in jail, if guilty; just so long does he, if innocent. But of this under the head of Delays.

But, says somebody, why say excluded? When, in any one of these courts, a suitor makes his appearance, is the door of the court shut against him? Did no instance ever happen, of a suitor standing up in court, and addressing himself to the judge? Oh yes: once in a term or so; scarce oftener. And why not oftener? Even because, as every man sees, nothing better than vexation is to be got by it. And, if at any, at what period can this be? Not at the outset: not till the suit has run out an indefinite part of its destined length: the judge being in by far the greatest number of individual suits, from first to last, invisible: nor yet an invisible agent, but an invisible non-agent: mechanical, as will be explained; mechanical from the outset being the mode, to a truly admirable length, substituted to mental judicature. But suppose the unhappy outcast in court, proceedings, by the devices that will now immediately be explained—proceedings, and even language, have been rendered, he finds, unintelligible to him. Even if he has counsel, of whom, besides one for use, he must have at least one, and may be made to have half-a-dozen for show; if, though it be but one of them has opened his mouth, the mouth of the unhappy client is not indirectly as above, but directly, and with the most shameless effrontery, inexorably closed. The one in whom all his confidence is reposed, may, by treachery or negligence, or craving for greater gain elsewhere, have forfeited it. Three hundred guineas have been given with a brief, the fee left unearned, and restitution refused. If, in such circumstances, a counsel though it be one who, not expecting to be needed is unprepared, has but opened his lips; no (says the judge,) counsel has spoken for you, you shall not speak for yourself. A plaintiff, had he ever such full licence to speak, could he compel the appearance of a defendant? Not he, indeed. If both were in court together, by accident, could either compel answer to a question put to the other? As little.

II.

Device the Second—Language rendered unintelligible.—It was by this device that, in the first instance, the exclusion was effected.

To Saxon judicature succeeded that of Norman conquerors: to Saxon liberalism, Norman absolutism. In Saxon times reigned, in adequate number, local judicatories: not only county-shires, but, so to speak, still lesser judge-shires: hundred courts, courts leet, courts baron, and others.

Then and there, people or lawyers made no difference; language was the same. From the presence of the judge, in any one of these small and adequately numerous tribunals, directly or indirectly, was suitor ever excluded? No more than in a private family, contending children from the presence of their fathers.

Under the Norman kings grew up Norman French speaking lawyers. Whether in the metropolis or elsewhere, along with his horses and their grooms, one train of these domestics was always in attendance about the person of the king. To this train was given the cognizance of all such suits as, from such varied distances, so various and some of them so long, could be made to come to it.

Quartering himself upon vassal after vassal, the king was perpetually on the move: in his train moved a judge or judges.

To this train, whatever part of the country he had to come from, every man, who had anything to complain of, had to add himself. To the place, wherever it was, that the train happened to be at, the defendant had to be dragged. When there, these same suitors there found a judge or judges, who, speaking a different language, could not, or would not, understand what they said.

The language of the Normandy-bred lawyers was a sort of French. The language of the country from whence they came, these lawyers spoke: the language of the country into which they were come, they disdained to speak. The rules, such as they were, by which the procedure of these foreign despots,—in so far as memory served, and self-regarding interest permitted,—could be guided, would of course be such as their own language gave expression to: rules which, as well as the rest of the language, were, to the vast majority of the suitors, unintelligible: meaning by suitors, on this occasion, not only those who were actually so, but those who, but for this obstacle, would have been, but could not be so. Justiciables they are called in French. In British India, this state of things may, with a particular degree of facility, be conceivable.

Here then by a plaintiff, if he would have his demand attended to, by a defendant if he could be admitted to contest it—here were two sorts and sets of helpmates to be hired; interpreters to convey what passed between parties and their advocates, and between witnesses and judge; and advocates to plead the cause on both sides.

Between advocates and judges the connexion was most intimate. Like robbers acting together in gangs and without licence,—these licensed, irresistible, and unpunishable depredators, linked together by one common interest, acted as brothers, and styled one another by that name.

Thus circumstanced, they had but to take measure of the disposable property of the suitors, and divide it among one another, as they could agree.

In and by this confederacy, in a language, intelligible seldom to both parties, most commonly to neither; or, what was worse, to one alone, was the matter talked over and settled. As to the truth of what was said, how much was true, how much was false, was not worth thinking about; means of ascertaining it there were none. Parties while exhausting themselves in fees, either looked on and stared, or, seeing that by attendance nothing was to be got but vexation, staid away. At an early period, minutes of these conversations came to be taken by authority, and continued so to be till the end of the reign of Henry the VIII., anno 1546, from which time, under the auspices of chance, they have been continued down to the present. Under the name of the Year-books, from the commencement of the reign of Edward I. anno 1272, they are, in greater or less proportion, extant in print, having been printed anno 1678.

By this one all-powerful judicatory (metropolitan it might have been styled, had the place of it been fixed,) by this one great French-speaking judicatory, the little local English-speaking judicatories were swallowed up. Remains to be shown how this was managed.

A suit, from which, if given for him, a man saw he should reap no benefit, would not be commenced by him. When, in a local judicatory, in which the plaintiff’s demand being so clearly just, the defendant would have been sure to lose, a suit was depending, the judges on each occasion, at the instance of the defendant, sent to the howsoever distant judicatory an order to proceed no further, and to the defendant an order to come, and, along with the plaintiff, add himself to the train, as above. This having been made the practice, and been extensively felt and universally seen to be so; thus, all over the kingdom, was an end put to the business of all these English-speaking and justice-administering judicatories.

If a man, who was rich enough, beheld within the jurisdiction of one of those judicatories, another whom, by enmity or any other cause, he was disposed to ruin, all he had to do was to commence a suit, either in the great travelling judicatory, or in the first instance in the little first judicatory, and thence call it up into this all-devouring one.

Appeal, on such occasions, does good service; this practice (evocation, in French, it is called) was, anybody may see to how great a degree, an improvement upon it.

If, from all these judgeshires, howsoever denominated and empowered—county courts, hundred courts, courts leet and courts baron,—appeals had been receivable, this would have done much, but this would not have done everything. Some indeed would have passed through the strainer, and yielded fees. But by far the greater part would have stuck by the way, and have thus been useless.—Upon the vulgar modes of appeal, evocation was no small improvement. On an appeal, misdecision on the part of the inferior authority required to be proved. Presumption is shorter than proof. By an evocation, this presumption was regularly made, and being made, acted upon.

III.

Device the Third—Written Instruments, where worse than useless, necessitated.

So far from being worse than useless, indispensable to perfect judicature is the art of writing, in so far as properly applied. Properly applied it is to three things: instrument of demand under the appropriate heads; instrument of defence under appropriate heads; and on both sides evidence. To no one of these three heads belong the so much worse than useless written instruments, styled pleadings. Behold, in the first place, the use and demand there was for instruments of this sort; meaning always with reference to the sinister interests of Judge and Co., then afterwards their particular nature.

By the unintelligibility given to the language, absolutely considered, not inconsiderable was the profit gained; comparatively speaking, relation had to what could be done, and was done accordingly, very little.

Of the French language, the usefulness to Judge and Co. was wearing out. Not to speak of amicable and commercial intercourse, war was, ever and anon, sending Englishmen into France, lower and higher orders together, by tens of thousands at a time. Under Edward III. a hundred thousand at one time made that fruitless visit to the walls of Paris.

While the use of the French language was thus spreading itself, so was the art of writing, and with it the use of the Latin language; among the priesthood it was common; and amongst the earliest lawyers were priests.

Now was come the time for pressing preeminently useful art, and not altogether useless erudition, into the service of discourse. Written pleadings were added to oral ones; added, not substituted; prefixt, being interposed between the delivery of the original scraps of parchment, and the debate in court. French the spoken matter, preceded by Latin, and that written; thus was darkness doubled, and difficulty trebled. Of this darkness the Latin part continued, unimpaired by any the faintest ray of light, till towards the middle of the last century. By statute of the 4th of George II. anno 1731, the darkness invisible transfigured into the existing darkness visible.

Contemplating it, the all but failure, Blackstone cannot hold his exultation.

Notice to dishonest men, in general, was then given by the fee-fed judges. Is there any man whose property, or any part of it, you would like to have?—any man you would like to ruin? If you can drop pence with them into my till, till they are tired, do what you like, and if they call upon me to help them, stand fast; they shall have their labour for their pains. Or, if you cannot come at them, I will do the thing for you. This was neither cried, nor sung, nor said. But when acts speak, words are needless. Such was the language then—such is the language now.

As to the uses—the advantage obtained through mendacity will be brought to view under the next head: even supposing the line of truth ever so rigidly adhered to, still the advantage could not fail to be considerable. To no inconsiderable extent, incapacity, especially in that rude state of society, would do the work of sinister art. Only by the capacity of paying on the one part for it, would any bounds be set to the extent to which, without aiming at excess, a rambling story might be spun out on either part.

Even from the first, to the purpose of giving the proposed defendant to understand he was expected to make his appearance, on a certain day, at a certain place, on pain that should follow, was applied (it would seem) a scrap of parchment (paper as yet unknown,) with a scrap of writing written upon it. Of the writing, Latin was the language; by anything so vulgar as the conquered language, conquerors disdained to sully hands, lips, or ears. It was between this writ (so it came afterwards to be called)—between this writ and the viva voce discussion that the pleadings were interposed.

On the occasion of each suit, four things there are, to distinguish which clearly from each other was, and still continues to be found a task of no inconsiderable difficulty: these are—1. The service demanded of the judge at the charge of the proposed defendants, say in one word the demand; 2. The portion of law on which the demand was grounded; 3. The individual matter of fact, which, it is alleged, has brought the individual case within the sort of case, for which the provision has been made by the law; 4. The evidence, or say the proof, by which the existence of these same facts was required and expected to be made manifest: not to speak of the law, where there not being any really existing portion of law bearing on the sort of case, the existence of a portion of law adapted to the plaintiff’s purpose must of necessity be assumed: assumed—that is to say, created by imagination, in a form, adjusted in some way or other to the demand. Correspondent was the course necessary to be taken on the defendant’s side.

As to the demand, next to nothing was the information given in relation to it by the writ. Remained therefore to be given by the pleadings the particular nature of the service, as above demanded, together with a statement of the facts, on which the demand was grounded, with which was chemically combined, a dram of the portion of common, alias judge-made law, which this same demand took for its ground.

Signal was the service rendered to the inventors by this decree:—1. Spoken words could not be sold at so much a dozen: the written words could be and were; so much for the profit account: 2. Of the word of mouth alterations, not a syllable could be uttered, which the judge did not sit condemned to hear: all labour, without profit: different the case when this preliminary written alteration came to be added: once commenced, then on it went of itself, like a pump set a going by a steam-engine: the judge receiving his share of the profit on it, neither his ears nor his eyes being any part of the time troubled with it: so much for the ease account. But of this further under the head of Mechanical vice Mental Judicature.

Yet another use: The additional and so unhappily permanent, served thus as the subject-matter and groundwork for the subsequent and evanescent mass of profit yielding surplusage.

By the plaintiff, his story had to be told to a sort of agent called, in process of time, an attorney, a word which meant a substitute: from this statement, the attorney had to draw up a case: from this case an advocate, styled a sergeant contour, afterwards simply sergeant (originally styled apprentices—barristers were not hatched,) had to draw up the pleadings, commencing with that styled, as above, the declaration: attached to each of these learned persons was his clerk: masters and clerks, by each one of them was received his fees.

Father of a family! when you have a dispute to settle between two of your children, do you ever begin by driving them from your presence?—do you send them to attorney, special pleader, sergeant, or barrister? Think you that by any such assistance, any better chance would be afforded you for coming at the truth, than by hearing what the parties had to say for themselves?

Page upon page, and process upon process, each process with fees upon fees,—all these for the production of no other effect than what is every day produced all over the country by a line or two in the shape of a summons or a warrant from a justice of the peace; a hundred-horse steam-engine for driving a cork out of a bottle.

“Tell Thomas to come here,” or “bring Thomas here:” this is what a father, when his wish is to see his son Thomas, says to his son John. Father of a family! if your power of endurance is equal to the task, wade through this mass of predatory trash, and imagine, if you can, the state your family would be in, if by no one of your children you could ever get anything done, without the utterance of it. Well then: exactly as necessary—exactly as contributive is it to the giving execution and effect to an ordinance of the king in parliament, as it would be to the giving execution and effect to an order addressed by you, on the most ordinary occasion, to any child of your’s.

The judge was, in a word, a shopkeeper. A spurious article, stampt with the name of justice, the commodity he dealt in. By hearing the applicant—the would-be plaintiff in person, nothing was to be got: by serving the scrap of parchment, a fee was to be got: one fee, and that one, like the queen bee, mother of a swarm of others.

To conclude this same subject of written pleadings, and the use of it to lawyercraft. Well might Blackstone thus triumph as above: well might he felicitate himself and his partners in the firm. To his analysis is subjoined an Appendix, in x. numbers, the vii. last of which are precedents of contract or procedure, chiefly procedure, still in use. Numbers vii. divided into sections 22: and, in each of several of the sections, distinct instruments more than one. An exhibition more eminently and inexcusably disgraceful to the head or heart of man, scarcely would it be in the power of reward to bring into existence. Not one of these instances is there, in which, in an honest, intelligible, and straightforward way, the purpose might not with facility be accomplished: in not one of them, in any such way, is the purpose actually aimed at. In every one of them the matter of it is a jargon of the vilest kind, composed of a mixture of lies and absurdity in the grossest forms. In maleficence, much worse than simple nonsense. By nonsense, no conception of anything being presented by it to anybody, no deception would have been produced: by this matter, to every eye but that of a lawyer, a false conception is presented; and, in his mind, if he be not sufficiently upon his guard against it, will be produced.

Such was the use derived from this invention in its original and most simple state: remain to be brought to view the increments it received, earlier or later, from the other sources above mentioned: from the suborned mendacity—from the established delays, from the groundless nullifications, on grounds avowedly foreign to the merits: and as in process of time, jurisdiction, as will be seen, came to be split, then came the ulterior improvements, introduced by equity, and spirituality: equity and spirituality—those two favourite handmaids of the dæmon of chicane.

IV.

Device the Fourth—Mendacity: licensed, rewarded, necessitated, and by Judge himself practised.

Of this contrivance, the root will be seen in a distinction taken between pleadings and evidence. To mendacity in evidence, no allowance is given: to mendacity in pleadings, full allowance. Why not to mendacity in evidence? Because if, to this last stage in the suit, the allowance had been extended, not so much as a shadow of justice would have been kept on foot: society could not have been kept together.

Now, for this same distinction, what ground is there in the nature of the case? Not any. “Thomas Nokes took my horse on such a day” (naming it,)—says I, John Stiles (the plaintiff,) to the judge, Make him give me back the horse, or give me its value. In this may be seen the instrument stated: first link in the chain of written pleadings—I saw the defendant take the horse, says Matthew Martyr, afterwards, at the trial. This is called proof on evidence. Matthew Martyr, if what he thus says is false, is punishable. But if John Stiles, though conscious that the defendant never took the horse, declare that he did take it, and this for the purpose of obtaining the value at his charge, why should he be unpunishable? Rational cause for the distinction, none.

On the other hand, for the purpose of depredation under the mask of justice,—the reason—the use—the ingenuity of it is admirable. By taking off the punishment from this stage of the suit, the door was thrown open to every dishonest man who, being rich enough, felt disposed to hire the judge, to enable him, then as now, by means of the costs of suit to accomplish his dishonest purpose. By suffering the punishment to be capable of attaching at the last stage of the suit, no advantage was lost; before the suit had run this length, the defendant’s ruin may have been accomplished.

Moreover, if by this or that man in the character of a witness, wilful falsehood comes to have been committed, so much the better: for here, if the purse of the party injured by falsehood not being yet drained, passion has got the better of prudence, here comes another suit: the suit by which the infliction of the punishment is demanded.

The nature of the destruction thus established, behold now the several application: made of it:—the licence, or say permission, the remuneration, or allowance, and the compulsion, all together. By a pre-established harmony, evidenced by usage, the judge stands determined, that, if the defendant, having received, or been supposed to have received, this same first link in the chain of pleadings, does not, on his part, add to it a second, he the judge, will cause seizure and sale to be made of the defendant’s goods; and the proceeds, to the amount in question, delivered to the plaintiff. What the dishonest plaintiff knew from the first was—that for no lie, by which he gave, as above, commencement to the suit, would he be punishable: here, then, was the allowance, or say licence: what he also knew was—that, if the first tissue of lies failed of being, in appointed time, answered by the defendant in correspondently mendacious prescribed form,—he, the dishonest plaintiff, thus rendered so by the judge, by the invitation virtually given to him and everybody by this his hired instrument and accomplice,—would receive the contemplated reward for his dishonesty: here, then, comes the remuneration and the compulsion: the remuneration thus given by the judge to the dishonest plaintiff: the compulsion thus applied by the judge to the defendant; and so on through any number of links in the chain of pleadings.

Had justice been the end aimed at, would this have been the course? No: but a very different one. No sale of dear-bought strips of parchment, befouled by judge’s lies. From the very first, no suit commenced but by an interview between the suitor and the judge. No ear would the judge have lent to any person in the character of plaintiff, but on condition, that, in case of mendacity, he should be subjected to punishment, including in case of damage to an individual, burthen of compensation. Thus, then, vanishes the distinction between pleadings and evidence; and of the dishonest suits that then were, and now are, born and triumph, a vast proportion would have been killed in embryo. Of whatever, on this occasion, were said by the applicant, not a syllable that would not be received and set down as evidence: received, exactly as if from a stranger to the suit; and so in the case of the defendant. Wherever it were worth while, in the thus written evidence, the now written, and above-described unpunishably mendacious pleadings, would have their so uncontrovertibly beneficial substitute.

Now for Mendacity practised.—By mendacity is understood the quality exemplified by any discourses by which wilful falsehood is uttered: habit of mendacity, the habit of uttering such discourse.

Uttered by men at large, wilful falsehood is termed wilful falsehood: uttered by a judge as such, it is termed fiction: understand judicial fiction.

Poetical fiction is one thing: judicial fiction, another. Poetical fiction has for its purpose delectation: producing, in an appropriate shape, pleasure: the purpose here a good one, or no other is so. To a bad purpose it is indeed capable of being applied, as discourse in every shape is. But in its general nature, when given for what it is, it is innoxious, and in proportion to the pleasure it affords, beneficent: no deception does it produce, or aim at producing. So much for poetical fiction, now for judicial.

In every instance, it had and has for its purpose, pillage: object, the gaining power; means, deception. It is a portion of wilful falsehood, uttered by a judge, for the purpose of producing deception; and, by that deception, acquiescence or exercise given by him to power not belonging to him by law.

If, by a lie, be understood a wilful falsehood, uttered for an evil purpose, to what species of discourse could it be applied with more indisputable propriety, than to the discourse of a judge, uttered for an evil purpose?

How much to be regretted, that for the designation of the sweet and innocent on the one hand, the caustic and poisonous on the other, the same appellation should be continually in use; it is as if the two substances, sugar and arsenic, were neither of them known by any other name than sugar! But the abuse made of this recommendatory word is itself a device: an introductory one, stuck upon the principal one.

So much for the delusion; now for the criminality.

Obtaining money by false pretences is a crime: a crime which, except where licensed by public functionaries, or uttered by them, to and for the benefit of one another, is punished with infamous punishment. Power, in so far as obtained by fiction, is power obtained by some false pretence: and what judicial fiction, that was ever uttered, was uttered for any other purpose? What judicial fiction, by which its purpose has been answered, has failed of being productive of this effect?

If obtaining money by false pretences is an immoral practice, can obtaining power by false pretences be anything less so? If silver and gold are to be had the one for the other, so can power and money; if then either has value, has not the other likewise?

If obtaining, or endeavouring to obtain money by false pretences is an act presenting a well-grounded demand for legal punishment, so in its origin, at any rate, was not the act of obtaining, or endeavouring to obtain, by those same means, power? power, whether in its own shape, or in this, or that other shape?

As to the period—the time at which this device had its commencement in practice can scarcely have been so early as the original period so often mentioned: lies are the instruments rather of weakness, than of strength; they who had all power in their hands, had little need of lies for the obtaining of it.

On every occasion, on which any one of these lies was for the first time uttered and applied to use, persons of two or three distinguishable classes may be seen, to whom, in different shapes, wrong was thus done: the functionary or functionaries, whose power was, by and in proportion to the power thus gained, invaded and diminished: and the people at large, in so far as they became sufferers by the use made of it: which is what, in almost every instance, not to say in every instance, upon examination, they would be seen to be.

In the present instance, functionaries, or say authorities, of two classes are discernible.

The authority, from which the power was thus filched, was either that of the sovereign, their common superordinate—or the co-ordinate authority, viz. that of some judge or judges, co-ordinate with that of the stealers. In a certain way, by the deception thus put upon him, the sovereign was a party wronged, in so far as power was taken from any judge to whom it had by him been given. But this was a wrong little if at all felt: the only wrong felt certainly and in any considerable degree, was that done to another judge or set of judges.

Say stealing, or what is equivalent, as being shorter than to say obtaining under false pretences. In each instance, if deception, and by means of it power-stealing, was not the object of the lie, object it had none; it was an effect without a cause.

By a man in a high situation, a lie told for the purpose of getting what he had already, or could get without difficulty without a lie—such conduct is not in human nature.

As to sufferings, nominal only, as above observed, were they on the part of the supreme and omnipotent functionary; here, supposing them real, no sooner had they been felt, than they would have been made to cease, and no memorial of them would have reached us.

Not so in the case of learned brethren: stealing power from them, was stealing fees. Accordingly, when, towards the close of the seventeenth century, a theft in this shape had been committed, war broke out in Westminster-hall, and fictions, money-snatching lies, were the weapons. But of this under the head of Jurisdiction-splitting.

There, all the while on his throne sat the king: that king, Charles II. But, to a Charles II., not to speak of a king in the abstract, war between judge and judge for fees, was war between dog and dog for a bone.

Now come the real sufferers—the people. Subjection to arbitrary power is an evil, or nothing is; an evil, and that an all-comprehensive one.

Now, every power thus acquired is in its essence arbitrary; for, if to the purpose of obtaining anything valuable—call it money, call it power—allowance is given to a man, on any occasion, at pleasure, to come out with a lie; which done, the power becomes his, what is it he cannot do? For where is the occasion on which a lie cannot be told? And, in particular, on the whole expanse of the field of law, no limits being assigned, where is the lie which, if, in his conception, any purpose of his, whatever it be, will be answered by it, may not be told?

Accordingly, wilful falsehoods, more palpably repugnant to truth, were never uttered, than may, by all who choose to see it, be seen to have been uttered, and for the purpose of obtaining power, by English judges.

Take, for example, the common recovery fiction; a tissue of lies, such, that to convey to a non-lawyer any comprehensive conception of it, would require an indefinite multitude of pages, after the reading of which it would be conceived confusedly or not at all. But what belongs to the present purpose will be as intelligible as it is undeniable.

1. Descriptions of persons stolen from, three:—1. Children, in whose favour a mass of immoveable property had been intended to be made secure against alienation; eventual subject-matter of this property, no less than the soil of all England: 2. Landowners, by whom, by payment of the fees exacted from them, was purchased of the judges of the court in question—the Common Pleas—that power of alienation which they ought to have gratis, or not at all: 3. Professional men—conveyancers (the whole fraternity of them)—despoiled in this way of a share of such their business, by the intrusion of these judges.

Now for the falsehood—the artful and shameless predatory falsehood—by which all these exploits were performed. Officiating at all times in the court in which these judges were sitting, was a functionary, styled the crier of the court; his function, calling individuals, in proportion as their attendance was required, into the presence of the judges. Sole source and means of his subsistence, fees; in magnitude, the aggregate of them correspondent to the nature of his function. Behold now the fiction. A quantity of parchment having been soiled by a compound of absurdities and falsehoods, prepared for the purpose, and fees in proportion received for the same, a decision was by these same judges pronounced, declaring the restriction taken off, and the proprietors so far free to alienate: to the parties respectively despoiled, a pretended equivalent being given, of which presently. Persons whom it was wanted for—(not to speak of persons not yet in esse, and in whose instance accordingly disappointment might be prevented from taking place) young persons in existence in indefinite multitudes, from whom, on the several occasions in question, their property, though as yet but in expectancy, was thus taken—taken by these same judges, whose duty it was to secure it to them. Now for the equivalent. To all persons thus circumstanced, it was thought meet to administer satisfaction: it was by a speech to the following effect, that the healing balm was applied:—“Children, we take your estate from you, but for the loss of it, you will not be the worse. Here is Mr. Moreland,” (that was always the gentleman’s name:) “he happens to have an estate of exactly the same value: this we will take from him, and it shall be your’s.”

Exactly in this way, on one and the same day, were estates in any number disposed of at the appointed price by these supposed, and by suitors intituled, ministers of justice. Such was the proceeding then: and such it continues to this day.*

There we have one fiction: now for a parallel to it. Once upon a time, in Fairy land, in the court of a certain judge, under the seat of the crier of the court, was a gold mine. On a touch given to the seat by a wand, kept for the purpose by the judge, out flowed at any time a quantity of gold ready melted, into an appropriate receptacle, and on the turning of a cock, stopt. Here we have a fiction, which, if it be a silly, is at any rate an innocent one. Be it ever so silly, is there anything in it more palpably repugnant to truth than in that predatory and flagitious one.

Two points, could they be but settled, might here afford to curiosity its aliment:—

1. Point the first. Those fictions, such as they are, in what number could they be picked up like toad-stools, in the field of common law! By dozens at any rate, or by scores, to go no farther, they might be counted.

Roman lawyers too, have theirs. But for every Rome-bred fiction, a dozen English-bred ones, to speak within compass, might be found.

2. Point the second. Birth-day of the fiction—latest hatched, and let fly to prey upon the people—was it the day next before that of the first newspaper?—was it that of the last witch burnt or hanged? Be the species of imposition what it may—be the field of deception what it may, a time there will always be, after which new impostures will not grow on it. But, as to the time when those which have root at present will be weeded out, this question is a very different one.

By the operation here in question, good (will it be said?) good, in a certain shape, was done?—good, for example, of the nature of that which it belongs to political economy and constitutional law to give indication? Be it so. But, be it ever so great, good, considered as actually resulting, is, on this occasion, nothing to the purpose: only lest it should be thought to be overlooked, is mention thus made of it: the only good which is to the purpose is the good intended.

Lastly, as to certain ulterior uses of this species of poetry to the reverend and learned poets. Those of the coarsest and most obvious sort—power-stealing and money-stealing—having been already brought to view.

To complete the catalogue, require to be added,—1. Benefit from the double fountain, constituted as above; 2. Benefit from the thickening thus given to confusion.

I. First, as to the double fountain. A juggler there was, and a fountain he had, out of which at command flowed wine, red or white, without mixture. This reality, for such it is, may help to explain one use, and that a universally applying one; the purpose, whatever it be, is it by the truth that it is best served? The argument is drawn from the truth side. Is it by the fiction? Side from which the argument is drawn, the falsehood.

Such being the emblem, now for the application. Be the mess what it may, truth is always the substance of it; lies, how coarse and gross soever, but the seasoning. The purpose, whatever it be—is it by the fiction that it is best served? From the fiction side it is that the argument is drawn: is it by the truth alone that the purpose can be served? It is to the truth, with whatsoever reluctance, that recourse is had. Thus quacunque via data, as the law Latin phrase has it, the point is gained.

2. Lastly, as to the benefit from the confusion that, proportioned to the extent to which non-conception, or what is so much better, misconception in regard to the rule of action, has place on the part of those who are made to suffer, in proportion to their non-compliance with it, the particular interest of Judge and Co. is served: these are propositions, of which the whole substance of this our humble petition is one continual proof. That the giving to these two so intimately connected states of things the whole policy of this class of politicians, has from first to last been universally directed, is another proposition, to which the same proof applies itself with the same force. But to say, that by and in proportion to the degree of confusion that has place in the aggregate mass of ideas produced by the aggregate mass of discourse, expressed in relation to the subject and received, this same purpose is answered, is but to say the same thing in other words.

If, to the intelligibility of that which is here said about unintelligibility, any addition can be made by the sort of imagery so much in request,—out of each one of Judge and Co.’s double fountains, rises at all times a thick fog. Each one after another will be brought to view, namely, under the head of device the eleventh—Decision on grounds foreign to the merits.

V.

Device the Fifth—Oaths for the establishment of the Mendacity, necessitated.

That the ceremony of an oath is the instrument by means of which the licence to commit mendacity is effected, has just been stated. Now as to the mode of applying the instrument to this purpose. Nothing can be more simple. On the occasion of any statement, about to be made, on a juridical occasion, or for an eventually juridical purpose, is it your wish (you being a judge) that mendacity should not have place, you cause the individual by whom the statement is made, to have, just before the making of it, borne his part in this same ceremony: on the occasion of any statement so made, is it your wish that mendacity should have place, you abstain from requiring the performance of this same ceremony: and, at the same time, you give to the naked statement so made, whatsoever effect it suits your purpose to give to it.

Not that it was for this purpose that the ceremony itself was invented: for, along with the time, the cause of its invention is lost in the darkness of the early ages: all that, on this occasion, is meant is—that it is for the purpose of organizing mendacity, and giving to that vice every practical increase, that the ceremony, being found already in use, was taken advantage of.

Properties, which we shall now present to the view of the Honourable House this instrument as possessing, are the following: they consist in its being—

1.Needless; to wit, for the purpose of repressing mendacity on judicial occasions, or for a judicial purpose.

2.Inefficacious, on these same occasions.

3.Mischievous, to an enormous extent, in a variety of ways.

4.Inconsistent with the received notions belonging to natural religion.

5.Anti-scriptural.

6.Useful to Judge and Co., eminently subservient to their particular and sinister interest; and as such cherished by them.

First, as to needlessness. For the needlessness of this ceremony, on the sort of occasion, or for the sort of purpose in question, we humbly call to witness your Honourable House: prime in legislation is in effect the part borne by you. In your hands is the public purse: with you, with few and casual exceptions, laws originate. Take any law whatsoever, in the scale of importance what, in comparison with the power of making that same law, is the power of exercising, in relation to it, an act of judicature, reversable of course at pleasure by the powers by which the law was enacted? Well then—when at the instance of the Honourable House a law has been enacted—this same law, was it passed upon determinate grounds, or was it groundless? To style it groundless, would be to pass condemnation on it. It having determinate grounds, and those grounds appropriate, of what then are those same grounds composed?

Answer: Of matters of fact, and nothing else; for nothing else is there of which they can be composed. On the occasion in question, these same matters of fact, whatsoever they may be, will respectively either be considered as already sufficiently notorious, or not: if not, then will the existence of them, for the purpose of this same act of legislation, as for the purpose of any act of judicature, be considered as requiring to be established by evidence. No otherwise than in as far as thus grounded and warranted, can any law whatever be anything better than an act of wanton despotism. Most laudable accordingly—unmatched in any other country upon earth, is the scrutinizing attention and perseverance so constantly employed by your Honourable House in the collection of appropriate witnesses, and the elicitation of their testimony. Of their testimony? and in what shape? In that which is the very best possible: oral examination, subject to counter-interrogation from all quarters, re-examination at any time, and with the maximum of correctness secured to it by being minuted down as elicited, and subjected afterwards to correction by the individual from whom it emanated. Behold here a mode of proceeding, dictated by a real desire to elicit true, and appropriately complete, information: the desire accompanied with a thorough knowledge of the most effectual means for the accomplishment of it.

Well then. For securing to each article of information thus elicited, the same character of truth at the hands of each witness, putting out of the question the spiritual motive, what are the temporal motives which, in the shape of eventual punishment, in case of mendacity, your Honourable House makes application of? Answer: in a direct shape, imprisonment only; with or without fine: in an unimmediate and indirect shape, fine, for the extraction of which the imprisonment is the only instrument.

Now then, as to the ceremony called swearing, or taking an oath. Whether it be for want of power, whether it be for want of will—(the single case of election judicature excepted, and that no otherwise than in pursuance of a special act of parliament)—no use does your Honourable House ever make of this same ceremony. What follows? Does mendacity find the Honourable House impotent? On the contrary: much more effectual is its power against this vice than that of ordinary judicature, with its expensive prosecution and severer punishment. Why? Because, while the mode of elicitation employed is such as needs not the assistance of the ceremony, its mode of procedure is such, as is able to cause the punishment to follow instantaneously upon the offence. Yet, has it as yet a weakness, to which consistency will one day, it is hoped, apply the obvious remedy. Standing at the highest pitch at the commencement of each parliament, it sinks (this indispensable power) as the parliament advances in age, till, at last, it is sunk in utter decrepitude.

After such a demonstration of the needlessness of this ceremony, but for the importance and novelty of the subject, other proofs might be put aside, as being themselves needless: important the subject may well be styled, or no other is so: for, so long as this ceremony has place, justice, to the prodigious extent that will be seen, is absolutely incapable of having place.

To the benefit of the testimony of Quakers, ever since the year 1696, justice has, without the benefit of this ceremony, by various statutes, been admitted, in cases called civil cases: and now, by a statute of 1828, in cases called criminal and penal cases. If, then, as a security against mendacity, the ceremony is indispensable in the case of all other men, can it be needless or safely omitted in the case of these?

Moreover, on any one of these occasions, what is there to hinder a non-Quaker from personating a Quaker? Clothed in the habit, and speaking the language of a Quaker, suppose a non-Quaker, by his evidence, giving success to Doe, in a case in which, otherwise, it would have gone to Roe. The imposture afterwards discovered, would success change hands?

On the evidence of an impostor of this sort, suppose a man convicted of murder, and executed. The imposture being afterwards discovered, would the felony be transmuted into a non-felony, and the hanging operation be, in law language, declared void?

Not only in the case of a class of men so well known as this of Quakers, but in the case of a class comparatively so little known as that of Moravians, has justice been in possession of this same benefit, ever since the year 1749, by statute 22 Geo. II. ch. 30.

Of detriment to justice from this allowance, in what instance was any suspicion ever entertained? Was not the assuredness of the absence of all increased danger of mendacity, from this admission, in civil cases,—was not this the cause of the extension given to it in criminal cases?

So much for needlessness.

2. Now as to inefficiency. Considered with reference to the purpose here in question, oaths stand distinguished into assertory and promissory: but, in both cases, the sanction is precisely the same. Take then, for example, oaths of the promissory sort: because these stand clear of various points of contestation, which have place in the case of assertory oaths: whereas in the case of a promissory oath, if violation has place, seldom does the fact of the violation stand exposed to doubt.

Now then for the examples. Example the first: Protestant sees in Ireland, bishops 22: archbishops 4: together 26. Previously to investiture, oath taken by every bishop, promising to see that in every parish within his diocese, a school of a certain description shall have place. Of the aggregate of these oaths, what, in the year 1825, was the aggregate fruit? Performances 782: perjuries 480. When received and communicated—(so at least says the solemn office)—when received and communicated, behold the preservative power of the Holy Ghost in these minds against perjury.

Example the second: In England, through the university of Oxford, pass one half of the 12,000 or 13,000 Church-of-England clergy; through the university of Cambridge the other half. In Oxford, pre-eminent in uselessness and frivolousness, a volume of statutes receives at entrance from each member, in every article of it, as security for observance, an appropriate promissory oath.

Now for the effect. On no day does any one of these academics tread on the pavement of that same holy city, without trampling upon some one or more of these oaths. Held up to the inexorably conniving eyes of the constituted authorities, has been the contempt thus put upon this ceremony,—held up, not by strangers only, but by members—not by lay-members only, but by clerical members:—for more than the last half century, by a clerical member—Vicesimus Knox—in a work, editions of which, in number between 20 or 30 are in circulation.

So much for promissory oaths. To come back to assertory oaths. Stand forward custom-house oaths.* For demonstration of the inefficiency—the uncontested and incontestible inefficiency—these two words supersede volumes: exacted to a vast extent the assertion of facts, of which in the nature of things it is not possible that the assertor should have had any knowledge. How prodigious the benefit to finance and trade, if asseveration, with appropriate punishment in case of mendacity, were substituted, and by adverse interrogation, a defendant made subjectible to a limited loss, as by equity interrogation he is to loss of all he has! Thus simple is the arrangement, by which, without the illusory assistance of the thus universally contemned ceremony, finance might be made to assume a new and healthful face; trade be made to receive changes in great variety, generally regarded as beneficial; and pounds, by hundreds of thousands a-year—not to say millions, be saved.

So much for needlessness and inefficaciousness.

3. Now as to mischievousness. Of the immense mass of evil constantly flowing from this source, a part, and but a part—has as yet been presented to the view of the Honourable House:—namely, under the last head, the head of mendacity.

1. By so simple a process as the declining to act a part in this ceremony, any man, who has been the sole percipient witness to a crime may, whatever be that crime—murder, or still worse—after appearing as summoned, give impunity to it: without the trouble or formality, producing thus the effect of pardon: sharing thus with his majesty this branch of the prerogative, and even in cases, in which his said majesty stands debarred from exercising it.

2. By the same easy process, in a case called civil, may any man give to any man any estate of any other man.

Not quite so easy (says somebody.) For would not this be a contempt? and would he not of course be committed?

May be so: but when the murderer has been let off, or the man in the right has lost his cause, would the commitment last for life?—in a word, what would become of it?

But to no such peril need he expose himself. A process there is which is still easier: “I am an atheist.” He need but pronounce these four words. The pardon is sealed; or Doe’s estate is given to Roe.

But of this, more, presently.

Behold now perjury established by law: established on the most extensive—established on an all-comprehensive scale: established by impunity, coupled with remuneration altogether irresistible. Such is the effect of test oaths. Of these oaths, some are or may be assertory, some promissory, some assertory and promissory in one: declaration of opinions entertained: declaration of course of actions determined to be pursued, or of opinion determined to be entertained: to be entertained, spite of all conviction and persuasion to the contrary. For perjury in this shape, premium, the highest given for good desert in any shape,—for appropriate aptitude, in the official situations, the most richly remunerated. Of the whole of the expenditure of government, a vast proportion thus employed in raising annual and continually increasing crops of perjuries; and while such is the reward, impunity is absolute and secure.

Oh the admirable security! A man who, with or without pecuniary reward, has, for any number of years together as above, been leading a life of perjury, is to be regarded—not only as capable, but as almost sure, of being stopt from giving his acceptance to any of the very richest rewards in the king’s gift: stopt by the fear of no more than what, if anything, may follow from one single instance of perjury, and that a completely unpunishable one—made to refuse for example, an archbishoprick of Canterbury, with its £25,000 a-year, and its et cæteras upon et cæteras!!!

Sowing oaths and reaping perjuries is a mode of husbandry, in a particular instance, affected to be disapproved by Blackstone. But in that instance, compared with this, the scale is that of a garden-pot to that of a field.

Bidding thus high for perjury, is it possible that of the self-same man it should be the sincere wish to prevent it?

What, then (says somebody,) the fear of punishment at the hands of the Almighty,—is that to be set down as nothing? The answer is, yes; on this particular occasion, as amounting absolutely to nothing: but of this presently.

By the inducting of these same reverend, right reverend, and most reverend, self-styled perjurers (for so they are specially declared to be by these their own statutes,) has been established the national school of church of England orthodoxy.

These things considered, and the use made of oaths on judicial occasions,—Westminster Hall, not to mention its near neighbourhood, may it not be styled the great National School of perjury?

What, then (says somebody,) are all tests meant to be thus condemned? Oh no: tests, for declarations of the party concurred with, by a man, on this or that occasion, may be useful: useful, and even necessary; and at any rate unexceptionable: in some cases by acceptance, in other cases by non-acceptance, useful indications may be afforded. On an occasion of this sort, who are they whom you choose to be considered as siding with? This is the question, propounded by the call to join in the declaration; and in this case no mendacity need have place.

4. So much for needlessness, inefficiency, and mischievousness. Now as to repugnance to natural religion.

This supposed punishment for the profanation, on whom is the infliction of it supposed to depend? On the Almighty? No; but, in the first instance at any rate, on man alone. No oath tendered, no offence is committed: no offence committed, on no man punishment inflicted. According to the oath-employing theory, man is the master, the Almighty the servant. In respect to the treatment to be given to the supposed liar, the Almighty is not left to his own choice. In the event in question, at the requisition of the human, the divine functionary is made to inflict an extra punishment. Exactly of a piece with the authority exercised by a chief-justice of the King’s Bench over the sheriff of a county, is the authority there, by every man who has purchased it, pretended to be exercised over the Almighty. In Westminster-Hall procedure, the chief-justice is the magisterial officer; the sheriff of the county in question a ministerial officer, acting under him: a written instrument, called a writ, the medium of communication, through which, to the subordinate, the command of his super-ordinate is signified.

In the case of the oath, the man by whom the oath is administered performs the part of the chief-justice; the Almighty, that of the sheriff acting under him; and the kiss given to the book performs the service of the writ.

Is it by a country attorney, dignified by the title of Master-extraordinary in Chancery—is it by this personage that the oath is administered? In this case, it is the attorney that the Almighty has for his master now; and by the shilling paid to the attorney—by this shilling it is, that the Almighty is hired.

On the expectation of the addition thus to be produced to the spiritual punishment appointed by the Almighty of himself for mendacity—on this alone depends the whole of the molehill of advantage, if any such there be, capable of being set against the mountain of evil that has just been brought to view.

Of mendacity, variable is the maleficence, on a scale corresponding to that of the maleficent act, of which it is made, or endeavoured to be made, the instrument: of the profanation of the ceremony, the guilt, if any, is one and the same.

Infinitely diversified in respect of degree of importance, are the purposes to which this instrument, such as it is, is wont to be applied. Does it, in its nature, possess any capacity of being, by its variability in quantity, and thence in form, accommodated to these several purposes? Not any.

The punishment, if any, the infliction of which is expected, is in every instance the same, for which the attorney, for his shilling, draws upon the Almighty. This draught, will it be honoured?

But (says somebody,) for binding a man’s attention to the importance of the occasion, some mark of distinction between an assertion that is, and one that is not intended to be legally operative—may it not be of use? Yes, doubtless. But for this purpose, no such preposterous pretended assumption of authority over the Creator by the creature is either necessary, or in any degree useful. By the word asseveration, the appropriate extraordinary application of the faculty of attention is already sufficiently indicated.

On occasions of the sort in question, in the instance of the people called Quakers, by special allowance from the legislature, already in use is the word affirmation. This word might not improperly serve. But the word asseveration is, perhaps, in some degree, preferable; since it presents to view more assuredly than does the word affirmation, the idea of a special degree of attention and decision beyond what has place on ordinary and comparatively unimportant occasions.

5. Now as to repugnancy to Scripture.—“Thou shalt not take the name of the Lord thy God in vain:” so says the second of the ten commandments. “Swear not at all:” these are the words of Jesus, as reported in the gospels. “Above all things, swear not:” these are the words of St. James, in his Epistle. But for texts of Scripture, when troublesome, there are rules of interpretation: one of them is, the rule of contraries.

Says God to man,—thou shalt not perform any such ceremony. Says man to God,—I do perform this ceremony, and thou shalt punish every instance of disregard to it. Suppose the Almighty prepared to punish every or any instance of disregard to this ceremony, you suppose him employed in sanctioning disobedience to his own express commandments.

If, to the compellers of such oaths, punishment, in a life to come, were at all an object of consideration, the punishment attached to disobedience—to commandments thus plain and positive, would produce in their minds an impression rather more efficacious, than what has been seen produced, as above, by the punishment supposed to be attached to a disregard for the purely human and recently invented ceremony.

But, for the use of so useful an instrument of profitable maleficence, no punishment is too great to be encountered. “The punishment,” say they, “what matters it? Turning aside from it, we extinguish it.”

The thus imagined supernatural punishment, has it really any efficiency in the character of an auxiliary to human punishment, and a security against maleficence in its several shapes? If yes, why thus narrow the benefit producible by it?—why not make out at once a complete list of maleficent acts of all sorts, fit to be, in due form of law, converted into offences? This done, collectively or upon occasion severally, the promissory declaration may be attached to them, and the book kissed.

This done, and not before, consistency will take the place of its opposite; and so far the practice of swearing, against conviction, cease.

6. So much for needlessness, inefficiency, repugnancy to natural religion, repugnancy to revealed religion, as well as abundancy in mischievousness. Now for use to Judge and Co.—Multifarious and extensive is this use. The capital use, establishment of the mendacity-licence, with the increase given to the profit by written pleadings, keeps pace with the mischievousness of the practice, and has been already brought to view.

But the use of oaths to the partnership does not stop here. The greater the quantity of immorality, in all shapes, but more particularly in that of injustice, the greater the quantity of the profits: for, the more immorality, the more transgressions; the more transgressions, the more suits; the more suits, the more fees. This series presents a clue, or say a key, which comes to the same thing, to all the arrangements which enter into the composition of judge-made law.

By the confusion with which the field of law has thus been covered, observance of oaths, or breach of oaths, according as countenanced by a judge, being regarded as a merit and a duty, thus it is that judges have come to be regarded as invested with the power of converting right into wrong, and wrong into right: right and wrong following continually the finger (as the phrase is) of the law.

Decency, as well as that inadequate degree of efficiency which their own particular interest requires to be given to those parts of the law on which personal security depends, join in necessitating, as above, some restraint on mendacity in certain cases: at the same time, their official and professional interest requires that, to a vast extent, that same security should be inefficient. By a compromise between these two antagonising interests, has been produced the form of the prosecution for perjury.

Not applying the temporal punishment but in the comparatively small number of instances in which it has been preceded by this ceremony, and application of it requiring a separate suit, with two witnesses to give effect to it—a suit, of which the expense to the prosecutor is great, and the advantage, in case of success, limited to the few cases in which it has for its effect the reversal of the judgment grounded on the false testimony, they thus make a show, and no more than a show, of wishing to extinguish the vice, to the propagation of which, so far as profitable to them, their endeavours have been so diligently and successfully directed. Bating this rare case, ere any such prosecution can have been instituted, signal must have been the triumph of passion over prudence. Among ten thousand perjuries committed, is there so much as one punished? For ten might have been put a hundred, or for a hundred a thousand.

Built originally for feasting, Westminster Hall is thus become the great national school for perjury.

Picking out men, in whose breasts the aversion to mendacity is strongest and most incontestible—picking out these men, and expelling them from the witness’s box with ignominy stampt on their characters—is another service extracted by Judge and Co. from this ceremony.

In the instance of one half of that order of men, who are so richly paid for professing to impress morality, in all its shapes, upon the conduct of the rest of the community, the universality of habitual perjury has been already brought to view.

One of those suits, which the existing system engenders in such multitudes—a suit in which one of the parties is conscious of being in the wrong, has (suppose) place. One percipient witness there is, who being tendered for admission as a narrating witness, is on good grounds believed by this dishonest suitor to be an atheist. But, atheist as he is, nothing does it happen to him to have, or to be so much as supposed to have, to bias him, and warp his testimony one way or the other: and no man is maleficent without a motive.

Answering to his call, this man places himself in the witness’s box. The learned counsel has his instructions. “Sir,” says he, “do you believe in a God?” What follows? Answering falsely, the proposed witness is admitted; he cannot be rejected: answering truly, he is silenced, and turned out with ignominy. The martyr to virtue, the martyr to veracity, receives the treatment given to a convicted felon.

The atheist was unseen and silent. These lawyers drag him into broad daylight, and force into the public mind the poison from this confessing and thus corrupting tongue.

What will not the advocate do—what will not the fee-fed judge support him in doing for their fees? An inquisition, this high—commission court, all over. For the purpose of thus punishing the offence, they create it: themselves accessaries before the fact: themselves suborners.

Individuals they thus invest with the power of pardon—thus do these sworn guardians of the king’s prerogative. Individuals?—and what individuals? In the first place, these same atheists; in the next place, all Christians and other theists, whom they have succeeded in rendering mendacious enough to pretend to be atheists.

A murderer (suppose) is on his trial: necessary to conviction is the testimony of an individual, who has just mounted the box. Before the oath is tendered,—“First (may it please your lordship,) let me ask this man a question,” says the counsel for the murderer. Thereupon comes the dialogue. Counsel—“Sir, do you believe in a God?” Proposed witness—“No, sir.” Judge—“Away with him; his evidence is inadmissible.” Out walk they, arm-in-arm, murderer and atheist together, laughing: murderer, to commit other murders, pregnant with other fees.

Robbers in gangs go about (suppose,) and to suppress testimony, murdering all whom they rob, and all who are supposed by them to have seen or to be about to see them rob. On being taken, one of them (suppose) turns king’s evidence. Question by prisoner or prisoner’s counsel—Do you believe in a God? Answer in the negative: off goes the witness, and off with him goes the prisoner. Will it be said, that the condition, not having been performed, that is to say, the procurement of the defendant’s conviction, the pardon will not be granted, and the accomplice will be hanged? Not he, indeed. No sooner does any one of these murderers enter the witness box, than by Judge and Co., if not an atheist already, he is thus converted to atheism. The consequence is—the necessary evidence being thus excluded, the virtual pardon of the whole gang—this man along with the rest—takes place of course.

Another use to Judge and Co., from the all-corrupting ceremony: the shilling per oath received for the administration thereof: the shillings in front, with pounds, in many cases, in the back-ground. Hence, patronage, with reference to the situations in which this profit is received. Considerations these by no means to be neglected. What is there that is ever overlooked in the account of fees?

Another case. An instrument in the hand of hypocrisy—an instrument to cajole a jury with—is another character in which the ceremony is of special use to a judge. It forms a charm, by the fence of which, transgression in every shape is rendered impossible to him. Gentlemen of the jury, you are upon your oaths: I am upon mine. Mine calls upon me to do so and so, quoth the ermined hypocrite: out comes thereupon whatever happens to suit his purpose. On any adequately great occasion, appropriate gesture—application of hand to bosom, might give increase to stage effect. Speaking of a noble lord, as having been saying so and so—“My lords,” said a judge once, “he smote that sacred tabernacle of truth, his bosom.” Your oath? What oath? Who ever saw it?—where is it to be seen, unless it be on the back of the roll on which is written the body of your common law? One of three things. Either you never took any such oath at all, or if you did, it was either a nugatory or a maleficent one: a promise, for example, on all occasions to make sacrifice of all other interests to the interest of the ruling one. An old printed book there is, intituled The Book of Oaths: and of one or other of these two descriptions are the several oaths therein stated as taken by judges. At any rate, whatever oath you took, if any, in no one’s presence was it taken but that of him by whom it was administered. In what better light, therefore, than that of a fresh act of mendacity and imposture, can any such mention of an oath be ever regarded by a reflecting juryman?

So much for the punishment of mendacity under the existing system. Now suppose a system substituted, having for its ends in view the ends of justice. Great beyond present possibility of conception would be the security which against fraud and deception would be given, by attaching punishment to mendacity. In whatever instance mendacity had been uttered, either on a judicial occasion or for a judicial purpose, punishment would stand attached to it of course. Against fraud and maleficent deception, to whatsoever purpose endeavoured to be applied, great not only beyond example but beyond conception would be the security thus afforded. Oaths and perjuries abolished,—punishment for mendacity would be at liberty to bend itself, and would of course bend itself to the form of every offence, to every modification of which the evil of an offence is susceptible. Judicial is the occasion, in so far as it is in the course of a suit actually commenced, that the assertion is elicited: judicial the purpose, that is to say, the eventual purpose, where the assertion is uttered for the purpose of being eventually employed as evidence, should ever a suit have place, on the occasion of which it might serve as evidence.

Take, for instance, a false recital in a conveyance, in an engagement meant to be obligatory; false vouchers in accounts.

Thus, in the case of a voucher. Receptor in account with Creditor, produces from Venditor or from Faber a voucher, acknowledging the receipt of a sum of money for goods furnished to Receptor, to be employed in the service of Creditor. In fact, he has received no more than half the sum: the other half being undue profit divided between them. Under the existing system, on evidence in no better shape, are accounts audited: evidence received as conclusive, the mere production of a receipt. To Creditor in this case, what difference does it make whether it be by a forged receipt that he is defiauded of this money, or by a falsely asserting, though genuine receipt, as above? Yes, for no such false assertion is there any punishment appointed under the name of punishment: under the name of satisfaction, refunding of the undue profit, yes. But for this a suit in equity is necessary; a suit in which, for the recovery of five shillings, at the end of five years, or in case of appeal ten years, creditors may have to advance £500 or £1000, losing in case of success a fourth part of the money in unallowed costs. On no better security against fraud than this, have public accountants received discharges for hundreds of millions of pounds.

On the ground of any such voucher, any such Venditor or Faber might be made examinable it any time, and in case of original fraud, as above, or false asseveration in the course of the examination, punishable according to the quality and quantity of the wrong.

Fraudulently or otherwise mendaciously false recital in conveyances, or in engagements meant to be obligatory, (including contracts)—falsehood in the recitals of instruments, in which registration of obligatory dealings of either of those two classes is performed, newspaper or other paper under false denominations, printed and circulated for the purpose of influencing the prices of public securities—all these vehicles of falsehood would thus receive a mode and degree of repression at present unexampled and until now unconceived.

Thus intimate is the connexion between legalized swearing and frand: in a word, as has been seen, between this compulsorily and irresistibly legalized vice, and crime and immorality in every imaginable shape: with lawyer’s profit from every imaginable source.

Swear not at all!—cease to take the name of the Lord in vain! By these commandments, repeated every day at table, with or without the grace before meat in every house, more would be done towards the extinction of crime and immorality, than would ever be done by preaching, though every house were to have a pulpit in it.

How long will men continue to seek to cause God to apply a punishment he had no intention of applying?—To cause him!—say rather to force him, leaving only the time and the quantum to his choice? For, on the ceremony performed, the everlasting punishment is assumed to follow as a thing of course.

When will legislators and judges cease to be suborners of perjury?—of perjury on an all-comprehensive scale?

The passion for these universal oaths, and (which is the same thing) for perjuries, can there be no means of administering to its gratification without the boundless expenditure of crime, immorality, and consequent misery? If without the special and specific mischief produced in so many shapes as above, simple oaths, with correspondent perjuries, will content them, perjuries of both sorts, assertory and promissory, they may have their fill of. Each man may perform them for himself, and he may have strings of beads to tell them on: each man may thus perform them for himself; or, in proportion to his opulence, he may, for adequate remuneration, cause them, in any desirable quantity, to be performed by others. By means of pre-established signs, he might even for this same purpose press into the service the powers of machinery and steam. He might perform them in the Chinese style: and for every oath taken, have a saucer broken: and thus, at no greater expense than the sacrifice of religion, morality, and happiness, confer a benefit on that branch of trade. For the loss by assertory perjuries, amateurs might indemnify themselves by increase given to the stock of promissory ones.

If this be not agreeable, let all hitherto published editions of the Bible be called in, and appropriately amended editions substituted. Out of, “Thou shalt not take the name of the Lord thy God in vain,” let be omitted the word not. For “Swear not at all,” after the word swear, let be inserted the words swear and cause swear, whatever you will, whenever by you or yours anything is to be got by it. Thus would be wiped clean the irreligiousness of the practice; and nothing would be left in it worse than the immorality of it.

Not inconsiderable is the service so recently rendered by the extending to cases styled criminal, the admission so long ago given to Quakers’ and Moravians’ evidence in cases styled civil. Yet how inadequate, and thence how inconsistent the remedy, if it stops there?

Finally, in whatsoever is now deemed and taken to be perjury, guilt, over and above that which consists in the mendacity, either has or has not place: if guilt there is none, then, by the supposition, the ceremony by which the mendacity is constituted perjury, is of no use: if guilt there is, we humbly pray that whatsoever by the Honourable House can be done, may be done, towards exonerating us and the rest of his Majesty’s subjects from the burthen of it: and in particular, such of us, whose destiny on any occasion it may be to serve as jurymen: for if in perjury there may be guilt, we see not how, by men’s sitting in a jury-box, it is converted into innocence.

Accordingly, that which, in relation to this subject we pray for, in conclusion, is—that by the substitution of the words affirm and affirmation, or asseverate and asseveration, to the words swear and oath, all persons at whose hands, on a judicial occasion, any declaration in relation to a matter of fact is elicited or received, may be put upon the same footing as, in and by the statute of the 9th of his present Majesty, [George IV.] chapter 32, Quakers and Moravians are, in respect of matters therein mentioned: and that on no occasion on which, in the course of a trial, a person is called upon to deliver evidence, any question be put to him, having for its object the causing him to make declaration of any opinion entertained by him on the subject of religion.

Now for the petty juryman’s oath. Assertory or promissory?—to which class shall it be aggregated? As the interval between promise and performance lessens, the promissory approaches to, till at last it coincides with, the assertory. Assertory, beyond doubt, is the witness’s oath: as clearly would be the juryman’s, if the verdict followed upon the hearing of each witness’s testimony as promptly as the delivery of that same testimony follows upon the performance of the swearing ceremony.

Of this instrument, the inefficiency as to the production of the professedly desired effect—that is to say, the exclusion of mendacity,—its efficiency, on the contrary, as to the production of the opposite effect, with the perjury in addition to it,—these are the only results, the exhibition of which belongs, in strictness, to the present purpose. But another point, too closely connected with this, and too important to be passed over, is its mischievousness. Another distinguishable point is the absurdity of this part of the institution: and without bringing this likewise into view, neither the inefficiency, nor the whole of the misefficiency, can be brought to view,

Indeed, to show the absurdity of the notion is to show its mischievousness: at any rate, if intellectual imbecility in the public mind be a mischief, and adherence to gross absurdity a proof of it.

Mark well the state of the case. Men acting together in a body, twelve: business of the body, declaration of an opinion on two matters taken in conjunction—matter of fact and matter of law.

First, as to the matter of fact. Subject-matter of the declaration, a question between A and B: A being either an individual, or a functionary acting in behalf of the public. On a certain occasion, at the time and place in question, did an individual fact, belonging to a certain species of facts, take place or not? This species of fact—is it of the number of those in relation to which provision has been and continues to be made by such or such a portion of the law?

Of this sort in every case are two points, in relation to which, each man of the twelve is called upon to deliver his opinion, as expressed in one or other of two propositions, one or the other of which, they being mutually contradictory propositions, cannot fail of being true: laying out of the question, for simplicity’s sake, the rare case of a sort of verdict called special.

Yes; on the question of law: for, the comparatively rare case of a special verdict excepted, in the subject-matter of the opinion declared is the matter of law included, as often as a verdict is delivered. Say, in cases called civil, but implicitly: but in cases called penal, as often as the verdict is against the defendant, most explicitly. For, in the legal sense of the word guilty (which is the only sense here in question,) be the act what it may, doing it is not being guilty, unless that act stands prohibited by some law: really existing law in the case of written statute law: feigned to exist in the case of common law, in this one of the four or five different meanings of the word.

Be the subject-matter of opinion what it may—be the class of men what it may—be the number of them what it may,—to cause them to be all of one mind, all you have to do is to put into their heads the opinion it is your wish to see adopted, and having stowed them in a jury-chamber, keep them till they are tired of being there.

In what abundance might not time, labour, and argument—all these valuable commodities—thus be saved? Take the uncertainty of the law: this, if not a proper subject for redress, is at any rate, in no inconsiderable degree, an actual subject-matter of complaint. Make but the full use of the jury-boxes, or though it were but of one of them, this uncertainty may at command be changed into unanimity; and this unanimity, if not the same thing as the certainty, will at any rate be the best evidence of it; or, at any rate, the best consolation for the want of it.

Having taken them up from these several courts—taken them up from the seat of aggregate wisdom, which they occupy altogether,—pass through this machine the twelve judges, you save arguments before these sages; pass through it the members of the House of Lords, you save arguments on appeals, and writs of error before the House of Lords.

To return to the unlearned twelve. To each one of them, application is at the same time made of two distinguishable, two widely different, instruments.

One is the oath. Of the application made of this instrument, what in this case is the object? To secure, in this instance, verity to that declaration of his which is about to be made.

The other instrument is a certain quantity of pain: pain, according as he and the others comport themselves; increasing, in a quantity proportioned to the duration of it, from the slightest imaginable uneasiness, to a torment such as, if endured, would extinguish life; but which no man in the situation in question was ever known, or so much as supposed, to have endured.

A compound of several pains is this same pain: principal ingredients, the pains of hunger and thirst: slighted, and first commencing ingredient, the pain of privation, consisting in the non-exercise of whatsoever other occupations would have been more agreeable.

Under these circumstances, if so it be that, as soon as the evidence with the judge’s observations on it, if any, are at a close, either of the two mutually opposite opinions is really entertained by all of them, on the part of no one of them does any breach of his oath take place; as little, on the part of any one of them, does pain in any degree take place: the verdict is pronounced by the foreman, without their going out of the box.

But, as often as, instead of their delivering their verdict, they withdraw into the room prepared for them, then it is that a difference of opinion has place; and then it is that, on the part of all twelve of them together, the appropriate operations begin to be performed. Then it is that, to an indefinite amount, all twelve are made to suffer, that that same number of them, from one to eleven, may be made, and until they have been made, to utter a wilful falsehood, and thus break the oath which they have just been made to take, under the notion of its preventing them from uttering this same falsehood.

True it is, that if any one of them there be, in whose instance pain has had the effect of causing him no longer to entertain the opinion first entertained by him, but to entertain, instead of it, the opposite opinion declared by the verdict, no such falsehood will in his instance have been uttered. But exists there that person who can really believe that, in the case in question, pain can have any such effect?

And, even supposing the effect produced, where is the benefit to justice? Of the two opposite verdicts, to which is it that the pain will produce the transition? for it presses upon the whole number of them. Upon the adopters of the verdict eventually delivered, as well as upon the opposers of it; and whichever of the verdicts it be that is thus adopted, what reason can there be for regarding this as being more likely than its opposite to be the proper one?

But though to produce a change in the opinion really entertained is a thing which pain cannot do in the instance of any one, yet to produce a change in the opinion declared to be entertained, is a thing which pain, and this very pain, not only can do in the instance of some one of them, but is even known not unfrequently to have done in the instance of all but one.

Of this so triumphantly trumpeted, so anxiously preserved, and so zealously propagated unanimity, what, then, as often as the jury quits the box, is the result? Answer—Two doses: one composed of pains, the other of wilful falsehood and perjury. The dose of falsehood, some number, from one to eleven, are made to swallow; the dose of pains, all twelve: all this without the least imaginable benefit to justice.

The verdict, with the opinion expressed by it, being given, comes now the question—in what way is it, that, on that side, and not on the other, the victory terminated? Answer—In this: the foreman, having been the object of the general choice, the person the most likely to prepare for acceptance one of the two verdicts, is this one. If, then, by any one or more of them the opposite opinion is entertained, declaration will of course be made of it by all those who entertain it, and the number on each side will thus be seen at once.

Whereupon it is, that if to any one of them a reason occurs, which, as appears to him, has not been brought to view by advocate or judge, naturally and generally, every one who has in his own mind any such reason, will out with it. What, in this case, does doubtless now and then happen is, that after all the observations delivered by the experienced advocates and judge together, have failed to produce the impression in question, an observation pronounced by one of the comparatively inexperienced jury has succeeded. But this case, though sometimes exemplified, cannot be stated as the common one.

The oath to make a man speak true: the torture to make him speak false. Such is the contrivance. A two-horse cart; the horses set back to back, with a cart between them: in this behold its parallel.

A contest (and such a contest!) between will and will: and by whom set on foot? By the creator of the unanimity part of the institution. And by whom kept up? By the supporters of it.

In the declaration of the opposing will, others, in any proportion to the whole number, may have joined; thereupon has the pain continued to be endured by all, till those on one side, unable any longer to endure it, have gone over to the other side.

Exists there that man, in whose opinion, by the power of pain, any such change of the judgment from one side to the other ever had place?

Exists there that man, in whose opinion, on any future occasion, any such effect from such a cause is probable?

So much for opinion: now for experience. Experience says, that, while in this assembly, in which there is torture to produce it, unanimity thus constantly takes place,—in another, in which there is no torture to produce it, instances in abundance are continually happening in which it does not take place.

It is by the institution of another sort of jury—the grand jury—that the experience is furnished. Every day, where this institution has place, before these same petty jurymen, in number exactly twelve, had pronounced their pretended unanimous opinion on that same question, they, under the name of grand jurymen, in number from thirteen to twenty-four inclusive, with dissentient voices, in any number, from one to eleven inclusive, had been pronouncing theirs.

Yet, only-on one side does a grand jury hear evidence: on the two opposite sides the petty jury. In the opposition and conflict which in the petty jury case has place, is there anything that is of a nature to render coincidence of opinion the more assured?—more assured than when the evidence is all on one side?

Now, if in either of these cases there could be the shadow of a reason for the compulsory unanimity, in which case would it be? In the case of the grand jury assuredly, rather than in that of the petty jury. Why? Because, in the grand jury, as above, only on one side is evidence ever heard: in the petty jury, constantly on both sides. Is it by conflict in evidence that agreement in opinion is more apt to be produced than by agreement in evidence?

Such being the absurdity of the device, such its inefficiency to every good purpose, behold now the bad purpose in relation to which it is efficient. One case alone excepted, of which presently.

1. First, as to justice. Assured possessor of the irresistible evil, the fabled wishing-cap is yours: enter in triumph into any jury-box you please: on your will depends the verdict.

Compared with this power of yours, what is the influence of the most skilful judge? He can but cajole: you necessitate. Behold how sure your success, how small the cost of it. Every time the jury have staid out of court so much as an hour, not to say every time they have gone out of court at all—there has been a difference of opinion, and next to a certainty, perjury. Scarcely more than one instance of endurance of the uneasiness for so long a term as forty-eight hours has ever been known. Yours being the verdict, behold in this sufferance the limits to the utmost price you can have to pay for it.

Man of desperate fortunes! would you retrieve them? In civil cases, as often as it happens to you to be on a jury, and the value at stake is such as makes it worth your while, if on the wrong side there is consciousness of wrong, and the case next to a desperate one, the more depraved the character of the wrongdoer, the more assured you will be that an offer to share it with you will not be refused.

In penal cases, keep on the look-out for the richest criminals.

Defendant, with another man’s money in your hands, look well over the jury list:—observe whether there be not this or that one of them, whose surely effectual service may be gained by appropriate liberality.

Murderer, incendiary, go through the whole list: if one experiment fails, pass on to another: you have nothing to lose by it—you have everything to gain by it.

2. Now, as to religion. Behold the effect here.

Lowering the efficiency of the religious sanction in its natural and genuine state, clear of this spurious pretended additament,—is or is not this an evil? In scarcely more than one known instance has the force of the oath had the effect of causing the torture to be endured for so long a time as eight-and-forty hours. Thus weak being the religious sanction, even with the benefit of this reinforcement, what would be the amount of its influence, if operating alone? Next to nothing would decidedly be the answer, were it not for the torture. But, by the torture, this argument in proof of the inefficiency is, at any rate, weakened, if not repelled altogether. For, from the insufficiency of the religious sanction to prevail over pain when screwed up to such a pitch as to extinguish life, it follows not that any such insufficiency has place where no such pain has place. Oath or no oath, perjury or no perjury, scarcely will any man apprehend for himself, at the hands of the Almighty, punishment for non-fulfilment of an obligation, for performance of which the physical capacity will, in his eyes, be altogether wanting: at any rate, scarcely will it to any man appear probable, that, to any considerable extent, the obligation will, in quality of a cause of such endurance, have been capable of producing any considerable effect: or accordingly, that it is consistent with Almighty wisdom to employ it to such a purpose. And, as to the cessation of the endurance after a duration comparatively so short, why make an attempt, the success of which is plainly impossible?

That in these considerations there is more or less of reason, will hardly be disputed. But from this it follows not, that they will present themselves to everybody: and, in every eye, to which this, or something to this effect, does not present itself, the efficiency of the religious sanction in its natural state will, to say the least, be, by this supposed reinforcement, greatly weakened, not to say reduced to nothing.

By these considerations is moreover suggested a course of experiment, by which, on the degree of efficiency, if any, on the part of this ceremony, no small light would, it should seem, be cast. Continuing to apply the torture as at present in all instances, apply the ceremony in some, omitting it in others: then let observation be made of the proportionable number of instances, in which the jurors betake themselves to the retiring room, and of those in which they do not: and in regard to those instances in which they do give this proof of the efficiency of the religious (not forgetting the moral) sanction, minute down the length of the endurance.

Of those right reverend persons, who, as above, had sworn, each of them, to set up and endow schools, the majority are known to have actually forborne to commit the correspondent perjury. But, as to jurors, on the part of all those who have ever sworn to forbear to express an opinion opposite to their own, notwithstanding all torture—in other words, to forbear from perjuring themselves, what instance was ever known of such forbearance? Conclusion this. Supposed or pretended effect of this spurious additament strengthening the instrument it is added to: real effect, weakening it.

Mark now the sort of charity which the unanimity part of the institution, and the use of such an instrument as the oath for the production of the effect, proves and inculcates: proves to have existence on the part of the creators and preservers of it: inculcates into those minds to whom the force of it is applied. Numbers (suppose) eleven on one side, one alone on the other. Says the one of them now to himself—Do what the others may, never will I perjure myself. Saying this, does he not at the same time say this also: Yes—these my brethren, eleven in number—all these I will make perjure themselves: damned I will not be myself: but damned shall be these my brethren. If the word damned be not the proper one, substitute, ye who object to it, substitute that which is.

Ye—if after this exposure any such there be—ye who, persisting in the application made of the ceremony: in the application made of it, in any case, and in the case of jury men’s oaths in particular,—do really believe, that, for every instance of perjury, a punishment over and above that for simple mendacity, will in the life to come be suffered by the delinquent—think of the magnitude of the evil, which you are endeavouring to perpetuate! Take balance in hand, and say—whether, by the application thus made of the ceremony, it is in the nature of the case, that good, in any such quantity as to out weigh the evil, should be produced.

Take any man by whom, in any instance, this perjury has been committed: either he believes that punishment in the life to come will attach upon him, or he does not: if not, then is the oath in its professed character, in the instance in question, completely ineffective: if he does, think then of the suffering which it produces. Inefficient or mischievous (and who can say to what a degree mischievous?) such is the alternative.

Now for the benefit from this unanimity: meaning the benefit—if not to the creators, to the preservers and promoters.

To entertain any such opinion, as that, by pain, unanimity of real opinion, on the part of every or any twelve men is actually produced, may be or not be in the power of human folly. But to produce the desire and the endeavour to cause this same opinion to be entertained, is but too much in the power, and too abundantly in the practice of human knavery. To the existing system of English-bred jury law in general, and to this part of it in particular, continues to be ascribed this miracle. Then comes the practical use. A system by which such miracles are at all times wrought, and these miracles such delightful ones,—how impossible is it to change it for the better! how dangerous to meddle with it!

In so conspicuous a part as this, no change in the English-bred judiciary procedure system could be so made or attempted, without drawing the public eye upon the whole of it: but, let but the public eye pervade the whole of it, behold, it falls to pieces.

Such of Judge and Co. was the end in view, and such to Judge and Co. has been the use. Such moreover it will continue to be, so long as jurors shall continue to be made of clay, and judges the potters working it. But under their hands, thanks to their carelessness, it has grown and continues to grow stiffer and stiffer. While teaching these their pupils thus to contemn the law, these sages have themselves fallen to such a degree into contempt, that the scholars themselves have at length begun to contemn their own teachers. Every day is this contempt increasing: and if so it be, that contempt of a bad system is necessary to the substitution of a good one, a more beneficial result than these two conjoined, cannot be wished for.

Thanks to this carelessness? Yes: for it is by arbitrary power above, that the arbitrary power below, superior on many occasions to that of its creator, has as hath been seen been created. By arbitrary power in one quarter or the other, thus it is that everything is done: in both, the law is trampled upon. Or the mixture of oaths, perjury, and torture this is one effect therefore of the oaths.

Blind and speechless acquiescence, under an absurd tyranny, being the result, by what process of reasoning were the inventors led to expect it? Answer—By the following: On each occasion, the portion of law, to which the jury are called upon to join in giving execution and effect, being supposed beneficial,—as for the purpose of the argument it cannot but be, one thing desirable is, of course, that, in the instance in question, and by means of the verdict pronounced, execution and effect should be accordingly given to it. But, at the same time, another thing alike desirable is, that that same desirable effect being produced, it shall, by the people at large, be believed to be so.

This desirable belief, if produced, in what way then will it be produced? In this way. In the body of men thus selected, the people at large behold their own representatives, and moreover their own reporters. Better ground for their persuasion than the report made by these their reporters, they cannot have. On the occasion in question, they (the people) have not themselves had the means of informing themselves: these, their representatives and reporters, have.

Now then, how to make the people believe that, on every occasion on which a petty jury is employed, everything is thus as it should be? Such was the problem. The solution, this: On this, as on any other occasion, take any considerable number of unobjectionable persons for judges,—the larger the portion of those who agree in the same opinion, the greater is found by experience the probability of their being in the right: thence it is, that, on every occasion, in the majority of such men, the confidence is greater than in the minority. Still, however, remains this same minority by which, in proportion to its number, this so desirable confidence is diminished, and prevented from being entire. Now then, let but this troublesome obstacle be entirely done away, entire is thereby rendered this so desirable confidence. Well then—apply the torture, the minority vanishes.

Another feature belonging to jury-trial is the secresy of which the retiring chamber is the scene. But, not belonging to the subject of oaths, this feature belongs not to the present purpose.

Would but the mendacity content them, this they might have without the oath: without the oath, the torture would give it them at least as surely as with. But, for such important purposes as above, this same instrument of imposition was needed: and on the same occasion in particular, to make men by the terrific appearance shut their eyes, and prevent them from seeing into the absurdity of the contrivance.

In the shape of an exception, allusion has been made to one good effect of the power of conquest thus given to the strongest of the twelve wills. The good effect is this. A law (suppose) has place, by which, were execution and effect given to it, maleficence would be infused into the whole frame of government: absolutism, for example, with all its attendant miseries. Individuals at the same time are not altogether wanting, each of whom, if, in his capacity of juryman, the law in question were brought before him for execution, would oppose to it this irresistible will, would in a word apply his veto to it. By the king and the lords, this veto is applicable to the laws in the first stage of their progress—the stage of legislation: by juries, in the last stage—the stage of judicature.

In the case of offences styled political, and in these perhaps alone, is its usefulness indispensable, as it is concentrative: meaning, by political offences, those by which the effective power of the functionaries exercising in chief the powers of government, is struck at: treason, for example, sedition, and political defamation: meaning, in this last case, acts striking at the reputation of men in official situations, considered as such, in which class of cases, constituting as it does the main, not to say sole security against absolutism, rather than part with it, better it were to endure much more than the evil of it in all other cases.

That by the fear of punishment at the hands of the Almighty, scarcely endurance to the amount of two days has ever been produced, is indeed matter of demonstration: since, as above observed, to that amount, in no instance whatsoever, has the effect been produced at any time.

But that, in instances relatively not unfrequent, by sympathy for the happiness of the community at large, corroborated by antipathy towards men regarded as acting in hostility to it, instances of endurance such as have actually been productive of this good effect, there seems reason sufficient to believe to have had place.

To this generous self-devotion does the country appear to be altogether indebted for such portion of actual though unsanctioned and ever precarious liberty, sole security for all other salutary liberties the press is in possession of.

That but to too great an extent the above-mentioned disastrous supposition stands verified, is but too undeniable. Under the existing system, take away this irregular power of the jury, neither are laws wanting, nor power conjoined with will, to give execution and effect to them, sufficient to convert the form of government, such as it is, into as perfect an absolutism as anybody could desire.

Determined instruments of absolutism,—and, as such, with scarce an exception, determined and inexorable enemies of the press, have at all times been—all English judges: accordingly, on every occasion of a prosecution for a so-called libel, in which censure in any shape has been applied to the conduct of any public functionary, in that same proportion has been the constancy of the directions given by them to juries, to pronounce for their verdict the word guilty. Yet every now and then has an English jury refused to render itself in another sense guilty, by the utterance of that same momentous word.

Now then, admitting the effect to be good, in what way—by what means—has this same determined will been productive of it? By contributing to give execution and effect to the body of the law? No; but by successful obstruction and frustration applied to it.

Accordingly, in this instance is it any part of our prayer that the torture, thus applied, should be taken off? No; but that so long as the form of government continues what it is, it should be continued.

One set of cases there is, in which the real, or what comes to the same thing, the supposed interest of the ruling few, is in a state of but too decided opposition to that of the subject many; and to the whole extent of these cases, our prayer is, that this same state of things, anarchical as it is, may continue unimpaired.

Thus much for elucidation: to make out any catalogue of these cases, belongs not to this place.

Will it be said, that in some of these cases it is to the direction of the judge, and not to the evidence, that the verdict has been in opposition? Perhaps so. But, at any rate, neither are cases wanting, in which, with the salutary view in question, verdicts have been given by jurors in the very teeth of evidence. Upon their continuing prepared upon occasion so to do, depends, so to us it appears, all possibility of escape from the jaws of absolutism.

Not that we are not fully sensible that, in various particulars, the power of the jury is, in the nature of the institution, of essential, not to say indispensable, service to justice; in particular, in respect of the obligation it lays the judge under, of giving reasons for his conduct, and bestowing on the question the degree of attention necessary for that purpose; as also, the furnishing to him such information respecting various grounds for it, as he could not otherwise be in possession of. But, as an ultimate test of truth, that the least should possess a better chance than the most exercised and instructed judgment, of being the most apt, is a notion which we do not feel it in our power to embrace. But on the subject of juries, more will be to be said under another head.

VI.

Device the Sixth—Delay, in groundless and boundless lengths, established.

Delay (need it be said) is denial, while it lasts. One third of the year, justice, pretended, as above, to be administered: the two other thirds, not so much as pretended. Such was the state of things determined upon, and produced accordingly.

A calculation was made: one third of the year was found to suffice for getting into the law granary all the grist that the country could supply it with; that was the time for the mill to go: remained the two other thirds on which the miller was free to amuse himself. “One third of the year,” said he, “will suffice for getting in all the money that the whole people can muster for laying out in our shops: work for one third of the year, amusement for the two other thirds.” Sittings out of term time belonged not to those days. At the present day, while some judges, as far as gout will let them, sit at ease, other judges overwork and overfatten themselves. But so managed is the work, that the delay, with its profits and its miseries, continues undiminished. Moreover, by the delay was left a correspondent interval for incidents capable of being made productive of fresh fees.

What is the day on which justice ought to sleep?—what the hour? That on which injustice does so too.

Look now to other departments; see how things would go on if like delay were there: What if, during one part of the year, taxes being collected, during the other two thirds they were left uncollected?

What if, during one third of the year, the naval force being on duty, during the other two thirds the seas were left open to enemies and pirates?

What if, during one third of the year, the army being on duty, the other two thirds the country were left undefended, while enemies were at the work of plunderage and devastation?

From internal enemies, for want of justice, the sufferings of the people would not be so great as from external enemies for want of defence. True; but a suffering’s not being the greatest, possible, was no reason why men should be subjected to it. How came it that, in those days, while men were guarded in some sort against sufferings at the hands of external, they were subjected to it at the hands of internal evil-doers? Answer—By the suffering produced by the foreign adversaries these judges would themselves have been sufferers. By the sufferings produced by the domestic adversaries they were gainers.

Look now to professions.

What if, on being called in by a man with a stone in his bladder, a surgeon were to say to him, “Lie there and suffer while I am amusing myself: four months hence I may perhaps come and cut you.” By surgeons this is not said. No surgeon has a monopoly of surgery. Judges do say this. Judges, in small numbers, have among them the monopoly of the commodity sold under the name of justice.

In the eyes of Blackstone, all this evil is so much good. First, because it was done so early in the good old times. But, above all, because it was done by lawyers. To a husbandman, during harvest time, attendance in a court, he observed, would have been attended with inconvenience. True: and this was one reason why, instead of two or three hundred miles, he should have had but ten or twelve miles to travel ere he reached it. Attendance to get back a farming stock unjustly taken, would have been inconvenient. True: but leaving it in the hands of the depredator, and thus leaving the harvest to rot in the ground, was still more inconvenient. So much for harvest time. But all the year is not harvest time, and the whole remainder of the year had its judge’s sabbaths as well as harvest time: sabbaths, not of days, but of months continuance.

What the people now suffer from the system of delay thus organized,—what the judges now get by it, belongs not in strictness to the present head. But neither is it without claim to notice.

Chiefly to the cases called civil applies what is above. Now for cases called penal. Behold here the interest of judges changing, and with it, of course, the provision made by them.

In penal cases, and in particular in those most highly penal, not a day in the year but courts are open to receive complaint: and, complaint made, men complained against, guilty and innocent together, are put into jail. How so? Because, as above observed, judges have bodies, judges have goods, judges have lives: so also as well as other men, have all those who, in point of interest, are in any particular way connected with them: bodies, goods, and lives, which, but for some such protection, might be wounded, carried off, or destroyed.

When in jail, there they are, guilty and innocent together, from two days to 182, as chance pleases. How so? Because, to judges and those who are in league with judges, whether in this case a man is innocent or guilty—stays in jail two days or 182 days, makes no difference: not to speak of counties and cases in which the 182 days may be doubled.

Oh yes: to Judge and Co. the time does make a difference: for, from the difference between the two days and the 182 days, come fees. Jail produces bailing, and bailing produces fees. Innocent or guilty, those who can find bail and fees, are let out: those who are too poor to find either, stay in. How can it be otherwise? Under English judge-made law, the only unpardonable crime is poverty.

Contamination! contamination! Between uncompleted examination and definitive trial, whole days, weeks, and months, are rolling on: contamination thickening all the while. Complaints of this evil not sparing: not least abundant by this or that one, of those by whom it is caused. He, who can remove the evil, and does not, causes, if not the commencement, at any rate the continuance of it. Of such contaminators, the most insensible, the most obdurate, the most inexorable, the most inexcusable, are they not legislators?

All contamination in prisons—all unintended sufferings in prisons—all possibility of escape from prisons,—they might prevent, and they will not. Why will they not? One word, Panopticon, explains the mystery. Pitt gave acceptance to it while he lived—gave support to it, such as he was able. Royal vengeance stopped it. Interest, sinister and all-powerful interest, opposed to everything good in proportion as it is good, keeps it still out of existence. A little while, and the inventors will, both of them, have the merit of being dead: when their eyes cannot be rejoiced at the sight of it, then will it rise from under the oppression which has thus long kept it down: then will the public eye open itself: then will public indignation kindle; then will the public voice break out afresh, and resistance no longer be deemed compatible with prudence. To conclude—Delay gave ease: delay bred incidents: incidents were made to breed fees: so it must have been in those early times: so it is in these present times. Ease and fees—fruits so sweet, both together from one plant: how felicitous!

Two causes there are, by either of which, without blame in any shape to anything or anybody—to a judge, or to the system of procedure—delay, to any amount, may be necessitated.

Of these causes, those whose interest is served by the delay, and by the system in which it is an inseparable ingredient, take of course their advantage, and do what depends upon them towards making the people believe that the existing delay is alike necessary in the cases to which these causes do not apply, as in those in which they do.

1. One is, non-forthcomingness of evidence: of this cause, the influence, it is manifest, extends itself to every case, to every species of suit.

2. The other is complication: complicatedness of the subject-matter or other circumstances belonging to the suit. This applies not beyond a particular class of suits: but, in the nature of things, this is unavoidably but too extensive. Subject-matter (suppose) a mass of property: in the course of the suit, operations to be performed on it, collection and distribution of the component parts of that same mass: as in the case of the disposal made of the effects of a person lately deceased, or of a person in a state of insolvency. Over what parts of the globe may it not happen to the subject-matter, on the one hand, to both debtors and sharers in the balance, if any, on the other, to be dispersed? So likewise where, without death, on suspicion of insolvency, demand is made of an account, by a party to transactions to which it may happen to have been not less complicated than the above.

In a country cause, by this or that accident—absence, for example, of a material witness—trial, without loss of cause to the party in the right, is at that moment rendered impossible. What is the consequence? The cause goes off for six months: expense of witnesses, counsel, attorneys, all disbursed in waste: and at the end of the six months, if it happens to it to be on the remanet list, for another six months—unless the party is ruined by the preparation for the first trial, profit to Judge and Co. upon the second, and perhaps upon a third. Necessary or not, motion for a new trial, with additional profit thereupon, according to circumstances.

Suppose now the court sitting all the year round: the accident of one day may now be repaired the next.

Of further particulars as to the evil and causes of delay, mention will require to be made under the head of Jurisdiction Split.

VII.

Device the Seventh—Precipitation Necessitated.

Under the fee-gathering system, states of things the most opposite—delay and precipitation—concur in giving existence to the desired effect.

Of delay, the mode of establishment and the relative usefulness have just been seen. The precipitation grew by degrees out of the delay. At the early period in question, scarcely could it have been contemplated: not but that from the first, precipitation, with its evils, were among the natural effects of the opposite abuse. But at present it flourishes, and on each occasion produces its fruits: and only for the purpose of the present time is the state of the system at that early period here brought to view.

Be the business what it may, if, of the time that might and should have been allotted to it, a portion is kept unemployed, proportioned to the increase given to the quantity of the business will be whatever hurry takes place in the course of the time which the business is allowed to occupy.

Suits at common law, and as such brought for trial, or pretended so to be brought before a jury, may be divided into two classes: those of which it is known that, by possibility, they may be tried by a jury, and those of which it is known that they can not.

Cause of incapacity of being brought under the cognizance of a jury, complexity. Of modes of complexity capable of producing this effect, examples are the following:—

1. Multitude of facts which, by one and the same demand or defence are undertaken to be proved or disproved on one or both sides: for example, in an account.

2. Multitude of witnesses liable to be examined in relation to each alleged fact: especially if alibi evidence, or evidence as to character, is received.

These sources, however, are but two of a multitude of distinguishable sources, out of which complexity is in use to arise.

Suit called on, jury in box, the impossibility of trial is universally recognised. What follows? Off the suit goes to arbitration. Aptly learned and well-wigged gentlemen in plenty, there they sit, all known as such by the judge. Choice is made of one for each side, or the same for both. Now again comes the time for delay. Five guineas a-day, or less, secures and maximizes it: exemplary are then the care and deliberation. For securing the whole of the mass of evidence which the case affords, the powers are not now altogether adequate. But neither would they have been found so, had the trial gone on: for under the existing system, no assemblage of powers, adequate to the purpose, has placed anywhere.

Setting aside this deficiency and premium for delay, here may be seen the natural mode of procedure. Supposing the judge but one, with an audience sufficient in quality and quantity to compose a bridle for his discretion, and he salaried instead of fee’d, here would everything be as it should be. But the misfortune is—that, instead of being substituted to the elsewhere established technical mode of procedure, the natural mode is here added to it, leaving the burthen unalleviated.

So much for all jury causes taken together. Enter now the topographical distinction—country causes and town causes. The country outweighing the town causes in the scientific mixture of delay and precipitation.

Country causes are dispatched post haste: the whole machinery running round in a circuit. At each assize,—upon the blind fixation principle (of which presently,)—allotment made of a certain number of days:—two, three, or four, as the case may be: business, for which two or three hours might have been more than sufficient, or two or three months less than sufficient, crammed into the compass of those same two or three days. By leaving evidence unheard, arguments undelivered or unattended to,—one part, of the whole number of suits set down for trial, is now made to undergo that process: the other part remain unheard, and are called remanets or remanents. Six months is the shortest interval before they come upon the carpet a second time; that is to say, if come they do: for, various are the causes, by any of which they may be extinguished: deperition of evidence, drainage of purse, death: death, in a certain case, whether natural or no, not the less violent because lingering: offence, manslaughter (to say no worse): manslaughter by Judge and Co. with their delay, expense, and vexation: substitutes—how safe, convenient, and profitable!—to poison, sword, and dagger.

Remanets increase and multiply. Begotten by the remanets of spring, are the remanets of Michaelmas.

Eminently instructive would be a regularly published list of all of them.

Now as to town causes. Here the scene changes. Of delay, considerably less: thence, so of precipitation. For trials, in the whole of England, with the exception of the metropolis, assizes in the year no more than two; in some counties, no more than one. In the metropolis, terms four: with sittings before, in, and after each: total, twelve: and in each of the twelve, upon an average, more days than in an assize. Under these circumstances, in the metropolis, may be seen a choice made: not made by one Hercules, but by two of them. The one who has fewest causes gets most ease: the one who has most causes gets most fees. Health suffers: and martyrdom to duty is the name given to canine appetite for fees. Velocity in horsemanship sees itself rivalled by velocity in judicature.

Mark now how admirably well adapted is this compound of delay and precipitation to the ends of judicature. Carried on to the last link through the chain of useless proceedings, has been the corresponding chain of fees: so much for fees. Pending, the suit may have been for years, not a syllable all the while suffered to present itself to the mind of a judge, such is the fruit of the mechanical mode of judicature (of which presently) substituted to the rational: so much for ease. Then comes the agreeable circumstance of making recommendation of the man or men, by whom, though without the name, the functions of the judge are then to be performed: so much for patronage.

The boots that fitted all legs—the seven-leagued boots—may be seen in fable. The judicial establishment which, should parliament so please, would fit itself to all quantities of business, may be seen, as below, in sober truth. Deputation is the name of the instrument, by which this quality would be given to it. Powers of deputation is the name given to the so highly elastic and self-accommodating boots.

VIII.

Device the Eighth—Blind Fixation of Times for Judicial Operations.

Where flexibility is necessary, fixation made. Example—most prominent, effective, and instructive—that which is afforded by the appointment of days for attendance at the judgment seat: attendance of parties, or witnesses, or both.

Commencement (suppose) given to the suit,—as, in every case, it might and should be—by application, made by some person in quality of suitor, or, in case of necessity, by some substitute of his, at the sitting of the judge. Where a suit is intended (simple information without suit being out of the question,) the applicant demanding, that he himself, or some person mentioned by him, be admitted as pursuer against some person as proposed defendant. If, on this first occasion, the suit for the commencement of which the application is thus made, is not dismissed, some day for the continuance of it will of course be to be appointed: some day thereafter, say for example, in ordinary cases, the second, third, or fourth day, as it may happen, distance in place taken into account, reckoning from the day on which the originating application is made. So much as to what should be the practice: now as to what it is. In pursuance of the device here in question—say upon the blind fixation principle, the existing system appoints for all cases without distinction some one day by general rule: for each subsequent operation, fifteen days suppose, reckoning from the one last preceding. Blind fixation, say without difficulty: for, blind, when made by a universally and indiscriminately applying rule, such fixation cannot but be.

As to the originating application,—in neither case can in the nature of things any fixed day for it have place. Such application imports actual appearance of a suitor in the presence of the judge. But, applied to the existing system, how erroneous is this conception! For, such is the established etiquette, to no suitor, till the day on which conclusion is to be given to the suit, is his lordship at home. What then is the mode by which commencement is given to it? Answer, this: By a person acting as an attorney for the plaintiff, the appropriate instrument, the writ (as the phrase is,) is taken out: in plain English, bought at the justice shop of a clerk, employed by the judge, in serving out the commodity to every one who will pay for it, no question asked. The writ itself is a mass of unintelligible absurdity: but the result is, that if the proposed defendant does not constitute himself such by appointing an attorney to act for him in the correspondent manner, the judge will, at his charge, cause the plaintiff to have whatever it is that he demands.

In regard to defendants, setting aside for the present the question as to witnesses, co-pursuers, and co-defendants, what is clear is, that, sooner or later, to each proposed defendant the faculty ought to be afforded of acting, if so disposed, in contestation of the demand made at his charge, by the individual admitted as pursuer. But to his so acting, a necessary condition is, that he should have received notice of his being called upon so to act. To his being so, another condition necessary is, that a mandate for the purpose should have been delivered at some individual spot, which, at that same moment, is the place of his abode.

Now then, as to this same abode, it may be within a stone’s throw of the justice-chamber, or without, being out of the local jurisdiction of the court, at about three hundred miles distance, more or less. In the first case, supposing the defendant at home, and the judge at home, and disposed to hear him, two or three minutes would suffice for the production of the necessary intercourse, i. e. the interview between him and the judge in the chamber of justice; in the other case, twice as many days would not suffice. What, on an occasion of this sort, does judicial practice? It appoints one and the same day for every individual defendant; no regard paid to distance in place or quantity of time necessary to be expended in passing from the one place to the other.

So much for the operation,—the operation of attending, or, as the word is, appearing. Now for instruments. Where all that is to be done at the appointed day is appearance in a chamber mentioned, short in comparison is the interval that may suffice for adequate notice: and such and no other was the state of things at the primeval period all along in view. But where, within the appointed interval, an ulterior operation comes to be performed, that operation consisting in the drawing up and exhibition of a written instrument of a certain sort; in a word, say one of the sort of written instruments above spoken of by the name of written pleadings; widely different now is the aspect of the case: the time requisite may, upon a scale of indefinite length, be varied by the quantity of writing necessary, not to speak of an unconjecturable variety of other circumstances. And thus it is, that in this case, so it may be that by the next day may be afforded notice long enough, or by the next day two months, notice not long enough. Against the notice’s being neither too long nor not long enough, the chances, it is evident, are, so to speak, as infinity to one.

Of the individual in whose instance attendance is requisite to be paid, or some other operation performed,—some instrument already in existence and established, or some written instrument, not already in existence, to be framed, and thereupon exhibited, the residence is, as above, supposed to be within the jurisdiction of the court. But, on the other hand, it may, in fact, be in another hemisphere; and so it frequently is. No matter, the day is fixed,—fixed by the general rule: fifteen days (suppose) are given for a proposed witness, with his evidence, to make his appearance from British India, or Australia, or Peru.

Such, then, under the direction of this blind fixation principle, is the practice throughout the whole of the existing system of the technical judicature. It was the natural, and, in a manner, the necessary result of the virtual and effective exclusion which, at the primeval period all along in question, by the exclusive use of a language foreign to them, was put upon the parties.

Of this same blindness, behold now the consequences: for in these consequences may be seen the motive,—the motive, by the operation of which the eyes were at that time shut, and to this day continue to be shut. In each of the two opposite events, disservice is rendered to the interest of justice, correspondent service to the interests of judicature.

The time allowed, is it too long? If yes, then by the overlength is created so much needless delay; and of evil in that shape, the consequences have been already brought to view. Is it too short? Then comes a demand for the enlargement of it; and with this demand comes down a shower of fees.

A motion requires to be made: a motion having, in a common-law court, commonly for its support, some alleged fact, or set of facts, with an affidavit or set of affidavits, by which allegation of their existence is made; and of this motion, the ground made is here, by the supposition, in point of reason, incontestible. But it follows not that, in point of fact, it will not be contested. From the motion have, at any rate, come some fees; and from the contestation, if any, will come many more fees.

Every motion made is, in fact, a suit within a suit; and of the thus needlessly interpolated suit, the expense is abundantly greater than under a system having for its ends the ends of justice, would, in the vast majority of cases, be the whole of the needful expense.

By motion, understand here a motion which is not of course. For motions are divided into motions of course, and motions at large, or say not of course. Of the mention thus made of the distinction, the object is, that notice may thereby be received by the Honourable House that every sum obtained for making a motion of course, is money obtained from the suitors by extortion, practised on false pretences, no motion being really made: sharers in the produce of the extortion, the attorney, the advocate, the subordinate judicial officers, and the judge.

Of this contrivance for the manufacture of motions,—mark well the absurdity, in any other character than that of the manufacture of fees. If in judicature this is right, let it now be applied to legislature, and observe the consequences. Except where the appropriate facts are deemed of themselves sufficiently notorious, no operation is ever performed by the Honourable House, no proceeding carried for which a determinate ground has not been made by special evidence. By your Honourable House, either in the whole House, or in and by its committees, according to the occasion and the purpose, evidence is convened from every part of the island, and upon occasion from every part of the globe. Now then, for argument’s sake, suppose (what in reality is not possible)—suppose an honourable member to stand up and make a motion, that, on every occasion on which any person is ordered to be in attendance at the House, for the purpose of being examined, the day of attendance shall be on a day certain, and in every instance one and the same: say, for example, the fifteenth day, reckoning from that on which the motion shall have been made. A motion made to any such effect,—would it not be regarded as evidence of mental derangement, and that but too conclusive? Yet in judicature this is no more than what has all along been the practice; and till this moment without objection by all judges, professing at the same time to be directing their practice to the ends of justice.

But justification will perhaps be attempted: and if it be, imagination will be set to work for the creation of it: process, fallacy: result, in so far as successful, illusion and deception. Principal instruments of the fallacy, the words irregularity and regularity.

The mode in which they have acquired this recommendatory property seems to be this: With the word irregularity, sentiments of disapprobation have from the earliest time of life stood associated: at school, irregularity has betrayed itself by straying out of bounds: at a later period, by purchase of present pleasure at the expense of greater good in future contingency. Irregularity is therefore a bad thing; and, as such, attended with bad consequences. But bad consequences ought to be prevented; and to this end, whatever operation is chargeable with irregularity ought to be set aside, and to this purpose considered as not having been performed; whence the motion for “setting aside proceedings” (as the phrase is) for irregularity.

But of irregularity, regularity is the opposite: irregularity being a bad thing, regularity is in a proportionable degree a good thing, and whatsoever is good, ought to have place everywhere. Apply it accordingly to judicial procedure: whatever operation requires to be performed, a day certain ought to be fixed for the performance of it: and intimate is the connexion between regularity and certainty: and as fixation is the mother or daughter, no matter which, of regularity, so is she of certainty.

In proportion as the interval is too short, and thence the existence of motions for enlargement more certain, the rule receives the praise of strictness: for strictness is regularity, in a transcendent degree, or say in perfection. Accordingly, equity practice teems with rules of this kind—(say time-fixation rules)—compliance with which is notoriously and confessedly impossible.

Rule—is it a good thing? Yes, in so far as directed, and with success, to a right object: no, if directed to a wrong object: no, even if laid down without an object: for, on the field of law, all rule imports coercion: and, taken by itself, coercion is evil, and that evil pure. Now then, the rules in question—what are they? To outward appearance, nothing worse than rules without an object: but in inward nature and design, rules with a bad object: rules laid down for a bad purpose; for the purpose of producing by extension, under colour of justice, the object of the all-ruling passion—fees.

IX.

Device the Ninth—Mechanical substituted to Mental Judicature.

Of the arrangement by which the parties, and in particular the first applying party, the plaintiff, was excluded from the presence of the judge, this was an immediate result, as well as an intended fruit. Already, in the blind-fixation device, may be seen part and parcel of it: a peg or a nail driven into a board, is the prototype of a day fixed.

How to cause the suit to be carried on down to the last stage without the judge’s knowing anything of the matter: this was the problem to be solved, and solved it was: fruit of the contrivance, profit gained: all trouble, all time, all labour, all responsibility, saved.

By the parties in conjunction, that is to say, not the parties, but their respective agents, with the judge’s subordinates, all impregnated with interests repugnant to the interests of parties, everything requisite to be done was to be done: agent fighting against agent, with arms respectively bought by them at the shop kept by the judge for the purpose.

Mechanical this mode may truly be styled, in opposition to mental: of no such faculty as those the aggregate of which is termed mind, any application being at any part of the time made by him: irrational and non-rational are terms that fall short of the monstrosity of it.

A cider-press, worked by steam, is the emblem of a judicatory, acting in pursuance of this device. By the press, with its moving power, the juice is squeezed out of apples: by judges, and by means of the machinery of which their predecessors were the inventors, and themselves the preservers and improvers, the money, in the shape of fees, is squeezed out of suitors. By the piston, no thought is applied either to the apples or to the sweets extracted from them. By the judge as little, to the operations performed and instruments exhibited under the authority of his name, or to the effects of them on the suitors: not so as to the sweets: little are they in danger of being out of mind.

An attorney, along with a fee, puts a written paper into a box, the judge knowing nothing about the matter. This done, into the same or another box, another fee is dropped, with another written paper, of which the judge has the same knowledge.

By each fee, the agent on one side purchases of the judge the faculty and benefit of plundering, impoverishing, and vexing at the same time his own client, and the suitor on the other side; whereupon, the agent of the party on the other side does the like: and thus the compliment, as the phrase is, is returned.

For elucidation follows an example: that of signing judgment: by this one, all others may be rendered needless. “I have signed judgment,” says somebody: who, would it be supposed, is this somebody? A judge? no, but an attorney: the attorney of one of the parties. What!—is not, then, the judge the person by whom the act of signature is performed? Not he indeed: but the attorney is he by whom alone any thought is applied to the subject, any judgment exercised; the judge signs nothing: a clerk under the judge signs what is given him to sign as above. Under the fixation system, as above, a day has been fixed for the attorney of the party, say the defendant, to do something: say, to send in some written instrument, on pain of loss of cause. The day passed, the attorney takes to the proper officer the instrument styled the judgment, and so, as above, a clerk of the judge puts his signature to it.

The problem has been already mentioned. The result aimed at in the first instance is judicature without thought. In so far as this is effected, the solution is complete; in so far as this is unattainable, next comes judicature with the minimum of thought: in this case, an approximation is all that lies within the power of art and science.

Of the case in which the solution is complete, that in which a clerk’s is the hand by which the judgment is signed, is an example: the judge whose name has been written by him on a piece of paper or parchment knows no more about the matter than his learned brother who is sitting at the same time upon the Calcutta bench.

At all times, of the whole number of actions commenced, a great majority would probably be found thus disposed of. For such will be the case, where the so styled defendant, being by indigence disabled from becoming so in reality, sits helpless while the suit is taking the course which the mechanism has pre-established.

As to his property, instead of going in proportionable shares among his creditors, it is in the first instance, by Judge and Co. divided, if not the whole of it, always a large part of it, among themselves.

Creditors are made to abate from their demands: Judge and Co. know not what it is to make abatement.

One little improvement remains to be made: substitution of an automaton to the judge. Written by a penman of this sort have been seen lines more beautiful than were ever written by a judge. Of the essential characteristic of English judicature, the grand instrument of delusion—the masquerade dress—this deputy would not be left destitute. Bowels, if given to him, would be but surplusage: if his principal had had any, he would not have been where he is.

Suppose now a system of procedure under which everything was done by the appearance of the parties in the presence of each other, before an unfee-fed judge. Creditors more than one—equitable adjustment, as the phrase is, would have place: equitable adjustment, without that injustice for which this phrase has too often been made a mask: for the reducing, on both sides taken together, the burthen to its minimum, the arrangements requisite would be made. To the debtor respite might be granted, where, to both interests taken together, the grant were deemed more beneficial than the denial of it. Respite to the debtor is, indeed, so much delay to the creditor; but delay to the one may be a less evil than ruin to the other.

Where, besides the creditor by whom the demand has been made, other creditors remained unsatisfied, all of them being called in, a composition would be made among them, they appearing in person, as far as needful, under the direction of the judge: the effects would be divided among those to whom the shares were due, instead of a fellowship, consisting of attorneys, counsel, bankruptcy commissioners, judiciary functionaries of various sorts, and their universal patron, by whom the seals are put to the universal system of plunderage.

X.

Device the Tenth—Mischievous Transference and Bandying of Suits.

When justice is the object, cases of necessity excepted, in whatsoever judicatory a suit is begun, in that same is it continued and ended.

Where fees are the object, it is without any such necessity or use, transferred of course, from one judicatory to another: where, after transference, it does not return to the judicatory from whence it went, say transference; where it does return, say bandying.

Appeal is not here in question. In case of appeal, a suit is not, without special cause, sent off from one judicatory to another: in the case here in question, it is without any cause.

Instances of cases in which justice is the object, are afforded by one of the two classes of the cases in which jurisdiction is given to justices of the peace, acting singly.

Preparatory and definitive—by these two appellatives let them be distinguished: preparatory, where, from the judicatory in which it originated, a suit, to receive its termination, must be transferred to some other: definitive, when it is in the originating judicatory that the suit is not only begun, but continued and ended. To the class of cases in which the jurisdiction is definitive belong those in which justice is the object.

In the preservation of the practice, not in the invention and creation of it, consists, in this case, the device.

First, as to the simple transference. In the case in which the jurisdiction of a justice of the peace is of the preparatory kind,—from his judicatory, according to the place in which the suit originates, the nature of the case, and the gravity of the punishment, it is transferred to one of four others.

1. If in London and Middlesex, in the grave cases, to the Old Bailey.

2. If in the country, in these same cases, as also in the lighter ones, to the assizes.

3. In the metropolis, as above, in some cases to the assizes, in others to the general sessions of the justices of the peace.

4. In the metropolis, in the lightest cases, to the sittings before, in and after, term in the King’s Bench.

In its way to each of these ultimate or penultimate judicatories, if it has arrived at its destination, it has been strained through that seat and instrument of secresy, partiality, and irresponsible despotism, the grand jury.

Evidence, time, and money: of all these valuable articles, loss, in vast and incalculable abundance, is the consequence.

In all these instances, the case is, in one degree or other, a penal one.

For a faint conception of all these losses, and of the useless and mischievous complication by which they are effected, take now that state of things which, in respect of the evidence, is most simple, and which, at the same time, is not unfrequently exemplified.

Percipient witness to the transaction, but one: circumstantial evidence, none. Suppose the originating judicatory aptly constituted, and appeal allowed; what, in this case, should hinder the suit from being ended where it began?

A duty that might be imposed on the judge, as upon the justice of peace it is imposed,—is that of causing to be set down every syllable of the evidence. This done, why should it not be made thereupon his duty to pronounce judgment, and in case of conviction, give execution and effect to it? What (says somebody) if death were the consequence? Answer—O yes: though death were the consequence: provided always, that, in every case, appeal were allowed: appeal to a judge with jury, in cases to which the powers of a jury were deemed applicable.

Is this the course? No. From the justice of the peace it must go to a grand jury; from the grand jury, if not sunk in that dark pit, it must go to one or other of the four judicatories above mentioned.

Three times over must the tale of this percipient and narrating witness be told. Here, then, in every case, is the labour, expense, and complication of two appeals, without the benefit of one. Were appeal instituted, it would no otherwise be allowed than upon grounds deemed sufficient, and in so far as it was deemed subservient to justice, say, in one word, of use. On the other hand, under the existing system, there is the complication of appeal organized and established in all cases, including those in which the operation is without ground, and without use.

Were the matter of the first narrative preserved, it might serve as a check and a security for the correctness of the second: and so the first and a second for the correctness of the third. No: neither of the second nor of the first is such use, or any use, made.

Moreover, for deperition of the evidence by design or accident,—by purchase, emigration, sickness, or death, all this time, all these chances, are allowed.

I. Here then is loss the first: loss of evidence.

II. Now for loss of time:—

i. Old Bailey. In the year, sessions 8. Average duration of each session, days 10: time lost, days, from 1 to NA.

ii. King’s Bench. Terms 4: sittings, before, in, and after term, as many. Times of trial, these same sittings. Time thereby lost, days, from 1 to NA.

iii. Assizes. In the year, days of sitting in most counties, 2: in some, but one: in each town, from 1 to 3: days lost, from 1 to 182: in some cases, no less than 364.

iv. General sessions of the justices of the peace. In the year, sittings 4. Times of trial, these same sittings, days of sitting, upon an average NA: Time lost, days from 1 to NA.

III. Now for loss in money: Only for remembrance sake can this item be set down: to determination it bids defiance.

So as to the loss in the two other above-mentioned shapes: from anything that could be done towards, filling up the above blanks, the benefit would not pay for the burthen. According to his opportunities, every person, whose regard for human suffering suffices for the motive, will perform the operation for himself.

So much for simple transference: now for vibration, or say bandying; that is to say—after sending the suit from the originating judicatory to another, regularly bringing it back to the first. Neither was this branch of the device part and parcel of the original system. In process of time, two causes concurred in the production of the effect.

Cause the first: As opulence, and with it the possibility of finding the purchase-money for the chance for justice received increase, the local judicatories being killed, business kept flowing in to greater amount than King’s Bench and Common Pleas together knew what to do with, in the compass of that portion of the year, which, under the name of term-time, had originally been allotted to it. Cause the second: At the same time, the burthen attached to jury service, borne as it was twice in the year by men in dozens from each county, travelling for King’s Bench suits in the train of the king during his rambles, or though it were only to a fixed place, such as London, from Cumberland or Cornwall, was such as, in the aggregate, became intolerable.

Hence came the circuit system: that system, by which part of the time, originally under the name of vacation, consecrated to idleness, was given up to business, and, to a correspondent amount, ease exchanged for fees: judges being detached from the Westminster-Hall courts, to save to jurymen a more or less considerable proportion, of the time and money, necessary to be expended on journeys and demurrage.

As to the local judicatories thus extinguished, they sat every day of the 365: at least, nothing was there to hinder these days. Was anything like an adequate equivalent allowed for the 365, by the circuit-system principle, the allotment of a finite and minute quantity of time for an infinite quantity of business? When it is conducive to public health that, by medical men, wounds shall be dressed, teeth drawn, and limbs amputated at full gallop,—the circuit mode of trying causes, at like speed, will be conducive to justice.

Under the technical system, if ever, in a case such as this, evil receives alleviation, it is from some other evil. It is from the device by which mechanical operation is substituted to mental: it is from this, that the evil produced by the bandying device, by which a suit is dealt with as if it were a shuttlecock, may be seen to receive such palliative as it is susceptible of.

That the series of the proceedings of which a suit is constituted, should be divided between judicatories more than one, is a source of misdecision, for which, in some cases indeed, necessity affords even a justification, but for which nothing short of necessity can afford so much as an excuse. Why? Because in this case, the judge, on whose judgment the fate of the suit depends, has had before him no more than a part of the matter of which the ground of that judgment ought to be composed.

In the case of circuit business, this source of misdecision is purposely established and universalized. In every one of the three common-law courts, in the metropolis it is that the suit takes its commencement, and with it the history of it, called the record. When, on the circuit, the detachment of judges, sent from Westminster Hall in couples, make their progress through the counties, with them travel these same records, and so again on their return: whereupon, they are reconveyed to the offices, from whence they issue: of this practice of dealing with a record as with a shuttlecock, what is the use? None whatever: always excepted, the universal use: serving as a pretence for fees: a shuttlecock is lighter than a record, and would, in these cases, be an advantageous substitute to it.

Of the whole proceedings, in each suit the essential part (need it be said?) is the evidence. Well then; of each record this same evidence constituted (one might have supposed) the principal part. Well then; does it compose the principal part? No: nor so much as any part whatever: a mixture of immaterial truth and absurd lies: such is the matter of which the principal part is composed.

As to the evidence, instead of a complete written designation of everything relevant that has been said, traced by a responsible hand, the judge takes or does not take what he calls his notes; which notes are of course, in quality as well as quantity, whatever it pleased him to make them: on a motion for a new trial, but not otherwise, they are read. Now then for the palliative. It consists in this: setting aside occurrences, which are purely accidental, and which happily do not take place,—perhaps in one suit out of twenty,—no more than one judge is there, in truth, whose mind is, in any part of the proceedings, applied to the matter of the suit. This is the judge, under whose direction has been performed the elicitation of the evidence.

Auspices were what a Roman emperor contributed and received admiration and praise for, when a victory was gained a thousand miles off: auspices are what the judges of a Westminster-hall judicatory contribute to a suit begun and ended in their courts.

When from the circuit the record is brought back by the judge, under whose direction the evidence has been elicited, to the Westminster-hall court in the office of which the suit and the record took commencement, the form by which judgment is pronounced receives the handwriting of the chief justice, as in his sleep a plate of glass would his breath, without his knowing it; and thereupon, if the judgment be in favour of the plaintiff’s side, and money is to be raised in satisfaction of a debt pronounced by the judgment to be due, is sent down ordinarily to the county, to which the record’s useless journey had been made, an order called a writ of fieri facias, by which a functionary styled the sheriff of the county is required to raise the money by sale of the defendant’s goods, and remit it to the office of the court in which the suit was commenced.

When it was at Westminster, and thence in the very justice chamber in which the suit took its commencement, that the elicitation of the evidence belonging to it had to be performed, here was no journey for the record to perform: next to none when in the city of London, at less than two miles distance. A trial performed at a county town in the course of a circuit was said to be performed at the assizes: a trial performed in Westminster or London, as above, was said to be performed at nisi prius: nisi prius, when interpreted, is unless before: and with that interpretation your petitioners choose to leave the matter, rather than attempt to lead the Honourable House through the labyrinth, through which, often, beginning at nonsense, the mind must make its way, ere it arrives at common sense.

But the county at which the elicitation of the evidence is to be performed—what shall that county be? Under the natural system, there would be variety, but without difficulty: without difficulty, because without decision: without decision, because by the judges, unfee-fed as they would be, nothing would be to be got by it.

Under the existing technical system, chicane is busy: difficulty proportionably abundant. Hereupon comes a sort of a thing called a venue: Question, shall it be changed or remain unchanged? In plain English, the county in which the trial is performed—shall it be that which, by means of the appropriate gibberish, the plaintiff’s attorney had fixed upon for this purpose?

Such is the stuff, out of which, under the technical system, what is called science is composed. If a suit were sent to be tried at the venue, and the motion were for change of unless before, the profundity of the science would be rendered still more profound.

One thing is throughout intelligible: At the bottom of everything are fees: at the bottom of the unless before, are fees: at the bottom of the changeable venue are fees: the greater the quantity of parchment in the shape of a record, the greater the quantity of gold in the shape of fees, the greater the patience of us his Majesty’s subjects, the more cruelly will every one of us be trod upon by every dishonest man who is richer than he, and by the men to whom, under the name of judges, we are delivered over to be tormented, the more insatiably squeezed for fees.

Particular case just alluded to, that of a motion for a new trial. Judges of the three Westminster-Hall common-law courts, 12: before one alone it is that the trial has been performed. Two to one, therefore, is the chance that the above-mentioned palliative, such as it is, will not have had place: for, upon the notes taken by the one judge, at the assizes in the county, or nisi prius at the metropolis, is grounded the decision of the four judges in Westminster Hall, on the question whether the new trial shall or shall not have place.

Under natural procedure, supposing a new trial, it might, instead of the next quarter or half year, take place the next day; and thus before the witnesses were dispersed.

Let not mistake be made. Absolutely considered, neither on simple transference nor yet on bandying, can condemnation be passed, consistently with justice. Suppose two hundred local judicatories, having each of them in its territory a witness or a party, whose testimony was needful in one and the same suit. On such case, transference to some one, or bandying the suit to and back from each, might perhaps be productive of less delay and expense, than the fetching of them all to the originating judicatory.

The grievance consists in the performance of both operations, conjointly, and as a matter of course, where there is neither need nor use. Sending, for example, on the strength of the word venue, suit, parties, witnesses, and record, to Cornwall or Cumberland, when all are within a stone’s throw of the seat of ultimate judicature.

XI.

Device the eleventh—Decision on grounds avowedly foreign to the Merits; or say, Decision otherwise than on the Merits; or, more shortly, Decision not on the Merits.

Under all the devices as yet brought to view, the sinister design has shrunk from observation, and with but too much success sought something of a veil for the concealment of it. But by him, by whom, for the designation of the decision pronounced or sought by him, this phrase was employed, all veils were cast aside, and the principle acted upon, avowed and exposed to all eyes, in all its deformity and foul nakedness. To all eyes? Yes: but these eyes—whose were they? Under one or other of two descriptions they all come: eyes of the sharers in the guilt, with its profit, or eyes—which, by the devices that have been brought to view, they had succeeded in blinding, concealing from them the cause, and the authors, of the suffering they were experiencing all the while. But for this blindness, insurrection would have been universal, the yoke of lawyer-craft shaken off, all the other devices rendered useless, and universal abhorrence, not to speak of condign punishment, the only ultimate fruit reaped from so much ill-spent labour by the authors.

“To decide, sometimes according, sometimes not according to the merit—such has been my habit, such continues my determination.” What a profession this for a judge! In what other class of men could any instance of such openly-avowed depravity ever have been found?—in what other part of the official establishment any such avowal of accomplished inaptitude? Look to the military: My design is sometimes to obey my commanding officer, sometimes to disobey him. Look to the financial: My design is sometimes to hand over to the treasury the money I have collected; sometimes to put it into my own pocket. Look to the medical profession: My design is sometimes to cure my patients, sometimes to kill them. In the soldier, the tax-collector, and the surgeon, if such there could be, by whom respectively such language could be held, would be seen the exact parallel of the judge, who avowedly and purposely decides otherwise than according to the merits.

In painting the deformity of this practice, can any power of exaggeration go beyond the plain exposition of the simple truth?

In what instance, on what occasion, did the Honourable House ever profess to make a decision, not in accordance with the merits? On the occasion of any dispute between child and child, between servant and servant, did ever any member of a family, non-lawyer, or even lawyer, ever declare himself thus to decide? The essential word merits, being a word over the import of which something of a cloud may on this occasion appear to hang, whatsoever may be necessary we humbly hope will not be regarded as misemployed, while employed in dissipating it.

To have a clear view of the sort of operation meant by a deciding not according to the merits, a man must first have a correspondently clear view of the sort of operation meant by a deciding according to the merits.

Taken in its all-embracing description, a decision according to the merits, is in every case a decision by which, on the occasion in question, execution and effect is given to the law: to the really declared will of the legislature in the case of statute law: to the imagined will of the imagined legislature in the case of common law, in that sense in which it is synonymous to judge-made law.

In the sort of case called a civil case, that which is done by a decision according to the merits, is, giving to the plaintiff the benefit claimed by his demand, if so it be that his individual case is contained in the species of case in which it has been declared by the law that, by every individual, whose case is included in that same species of case, a benefit of the sort so designated shall, on his demand, be put in his possession by the appropriate judge: thus giving to the plaintiff the benefit in question, if his case is within that same species of case, and thereby of necessity subjecting the defendant to the correspondent burthen: refusing the benefit to the plaintiff if his case, as above, is not within the species of case, and thereby keeping the defendant clear and exempt from the correspondent burthen.

In the sort of case called a penal case, a decision, according to the merits, is a decision by which the defendant, if guilty, is pronounced guilty: if not guilty, not guilty.

On each occasion, two questions, essentially different, how intimately soever connected, come necessarily under consideration: the question of law and the question of fact. But of this distinction, for the present purpose, nothing further will require to be said. Only that it may be seen not to have been overlooked, is this short mention made of it.

Such being the description of a decision according to the merits, now, in exact contrast to it, comes the description of a decision not according to the merits.

In its general description, as above, a decision according to the merits being a decision by which, on the occasion in question, execution and effect is given to the law: in the case of a decision not according to the merits, on the occasion in question, execution and effect is not given to the law.

In a civil case, a decision according to the merits was a decision, by which the plaintiff was put in possession of the benefit in question, as above: a decision not according to the merits, is accordingly a decision, by which, in that same same case, a refusal express or virtual is made, so to put him in possession, as above.

In a penal case, a decision according to the merits, was a decision, by which, if the defendant was guilty, he was pronounced guilty; if not guilty, not guilty: a decision not according to the merits, is accordingly a decision by which, if the defendant was guilty, he is pronounced not guilty; if not guilty, guilty.

Here then are four distinguishable forms of injustice: and by every decision not according to the merits, in some one or more of these forms, is injustice committed.

Moreover, in no other than in one or other of these same four forms, by a judge acting as such, can injustice be committed: into one or more of them will be found resolvable every decision to which, with propriety, injustice, or say, contrariety to justice, can be imputed.

Of the injustice committed by means of this device, the prime instrument is the word nullification, with the other words, nouns substantive, nouns adjective, and verbs connected with it, and the phrases in the composition of which they have place: null, void, null and void, bad, error, irregularity, flaw, vacate, avoid, avoidance, quash, set aside, annul, nullify, fatal, quirk, quibble.

Compared with this of nullification, of all other modes put together, in which injustice is capable of being committed by decisions not according to the merits, the importance would be found inconsiderable: the burthen of research and examination would not, on this occasion, be paid for by the benefit of the acquisition.

In the group, composed of these four great aggregates, are united four elementary ingredients, by universal consent acknowledged in the character of so many modifications of injustice; these are punishment ex-post-facto, or as some style it, retro-active—disappointment of established expectations, complete arbitrariness, mis-seated punishment. Of retro-active punishment, the so flagrant and incontestable injustice is an established and frequently drawn-upon source of condemnation: and this even under statute law, under which it is so rarely inflicted, even by the worst constituted and worst exercised governments.

In the case of judge-made law, this retro-activity is of the very essence of this species of law, as contradistinguished from statute law: and this even when the decision is on the merits.

But, when not on the merits, it stands upon ground very different from what it does when on the merits: ground widely different and much worse.

When on the merits, there is always some analogy between the state of the case on the occasion of the decision in question, and the state of the case on some anterior decision or decisions, to which reference is made: and those to which the analogy it bears is looked upon as being the closest, are uniformly those which are looked out for in preference. How constantly opposite in this respect is the case where the only grounds on which the decision is formed, are such as avowedly have nothing to do with the merits!—bear no analogy whatsoever to the merits!

As to punishment, the name is on this occasion employed, because, whether or no the suffering produced is produced under the name of punishment, such upon the individual who suffers is the effect.

Now as to disappointment. Of an occurrence from which expectation of benefit in any shape experiences disappointment, pain, in some degree or other, is a constantly attached consequence: in the exclusion put upon this pain may be seen the sole but perfectly sufficient immediate reason for giving to every man whatsoever is deemed his own, instead of suffering another to get or keep possession of it. No otherwise than by statute law, and in proportion to the extent of it, can this so desirable exclusion be effected: by statute law pre-established, fore-known and fore-notified. Of judge-made law, the general incapacity of conveying this same so desirable information is the essential and distinctive characteristic. But, on every occasion, as above, even under judge-made law, it is more or less extensively an object of endeavour to confine this sort of uneasy sensation within as narrow bounds as may be; to exclude it altogether, if possible; and at any rate, on each occasion, to render the probability of its having place as small as possible. On the contrary, in the case of a decision not on the merits, the probability of the existence of evil in this shape is at its maximum: in a word, it coincides with certainty. For, unless where, in the individual case in question, corruption, or some uncommon distortion of the intellectual frame, on the part of the judge, is supposed or suspected to have place, by whom is it that the existence of any such phenomenon can naturally be apprehended, as that of a judge so lost to all sense of shame, as to stand forth a self-declared perpetrator of injustice?

Now then, by the practice of deciding on grounds palpably foreign to the merits, has power to this degree arbitrary been actually established in themselves by English judges. In general, they are expected to tread in one another’s steps: and in the degree, in which this so indispensable habit is conformed to, depends altogether such feeble and even vacillating degree of security, as it is in the power of judge-made law to afford. But when at length the eyes of the public have to a certain degree opened, the evil which has been the result of their thus treading in one another’s steps in some cases of quibble, has become so palpable and grossly mischievous—giving impunity, for example, to murderers, because some word has been miswritten or left unwritten by somebody,—when things have come to this pass, not only allowance but applause has been bestowed on a departure. Then it is that the judge finds himself at perfect liberty to give or to refuse impunity to the murderer, at pleasure: if he refuses it, liberality is his word: if he gives it, stare decisis.

Now as to the complete arbitrariness. Arbitrary to a degree of perfection, if in any case, is the power of a judge in a case in which, without danger either of punishment at the hands of the law, or so much as censure at the hands of public opinion, he can give success to plaintiff or to defendant, according as he happens to feel inclined. Such is the case where, within his reach, he sees two opposite sources of decision, from either of which he can draw at pleasure: one which will give success to the plaintiff, the other to the defendant. A sort of vase has been seen, from which, at command, wine, either of one colour or another, has been made to flow. From this emblem, the name of the double fountain principle has been given; to the principle on which, by this means, and in this shape, a power, which to the extent of it is so completely arbitrary, has been established.

To such a pitch of perfection has the exercise of power in this shape been carried, that of late days a judge has been seen scouting the quibble one day, giving effect to it the next. To what cause such inconsistency should be ascribed—whether to corruption, or to that wrong-headedness which, to so great an extent, judge-made law cannot fail to propagate, it is not possible to determine: to-day it is probably wrong-headedness: to-morrow it may be the other cause.

While decision on any other ground than the merits is allowed of in any case, thus the matter must continue: and for the extirpation of this enormity, nothing short of an entirely new system of procedure can suffice.

Lastly, as to mis-seated punishment. Delinquency, such as it is, being imputed to one person, not on him, but on some other—and that other one to whom no delinquency in any shape is imputed, is the burthen of suffering imposed. The attorney (say of the plaintiff) is supposed to have written some word wrong: for this impropriety, real or pretended, if real, intended or unintended, his client, the plaintiff, is made to lose his cause. If the case be of the number of those in which, in conjunction with the individual, the condition of the public at large is considered as suffering, as in the case of robbery and murder—of those in which the evil diffuses itself through the public at large, without infringing on any one individual more than another, as in the case of an offence affecting the revenue,—in either of these cases, it is the public that thus, for the act of the individual, is made to suffer: to the guilty individual, impunity is thus dealt out: to the not guilty individual, or public, groundless sufferings.

In the expression by which, upon any operation or instrument, nullification is pronounced, employment given to a sort of fiction is involved. One operation which has been performed is spoken of as if it had not been performed: the instrument which has been brought into existence is spoken of as not having had existence: at any rate, things are put, and professed to be put, into the state in which they would have been, had no such operation, no such instrument, had place. Amidst instances of mendacity so much more flagrant, scarcely would such a one as this have been worth noticing: but for exemplification and explanation of the effects, this mention of it may be not without its use. An offender, for example, has been brought to trial, and conviction has ensued: in the instrument of accusation (say the indictment,) one of those flaws, manufactured perhaps for the purpose, has been discovered: in consequence of the observation, arrest of judgment, as the phrase is, has been pronounced. What is the consequence? Whatever has been done is to be considered as if it had not been done: information which has been elicited, is to be considered as not having been elicited: evidence, by which the fact of the delinquency has been put completely out of doubt, having been elicited, and with perfect accuracy committed to writing, is to be considered as never having had existence.

In civil cases, the effect is the same. The same convenient extinction of evidence has place, when a new trial has been granted and brought on: though in this case not being needed, no such word as nullification, or any of its synonyms, as above, is employed.

Peremptory and dilatory: by these two words are designated the two so widely different effects produced in different cases by nullification. Case in which the triumph of injustice is most complete, that in which the effect is peremptory, or say definitive: because a word has been mis-spelt by a copying clerk, a convicted murderer, for example, walks out of court, under the eyes of his deliverer and accessary after the fact—the quibble-sanctioning judge—to commit ulterior murders. Throughout the whole field of penal law, of nullification pronounced on the proceedings on grounds foreign to the merits, this, according to the general rule, and expressed in the language of Roman law by the words non bis in idem, is the effect. Needlessly promotive of guilt as this rule would be in any case, it would not be near so amply so as it is, were it not for the blind fixation principle, applied to days, as above. Endless is the variety of accidents—endless the variety of contrivances—by any one of which a necessary witness may be kept from being forthcoming at the day and within the hour prescribed; while on a circuit, the judges, with their et cæteras, are circumgirating, as if by steam, on a wheel without a drag.

Humanity, that humanity which has penny wisdom for its counsellor, that humanity which can see the one object under its nose, but not the hundred of the like objects at a few rods distance, applauds the impunity given in this case: consistency would, if listened to, extend the impunity to all other cases: then would society fall to pieces: and in Blackstone’s phrase, everything would be as it should be.

All this supposes the case to be of the number of those called criminal or penal: for, to these words substitute the word civil, the eyes of humanity are closed. In every case called civil, a new trial may be granted: in cases called penal, not: in the case called civil, the loss a defendant stands exposed to, may amount to pounds, by tens of thousands a-year: in the case called penal, it may not amount to ten shillings; but cases called civil may, on revision, be found pregnant with fees to any amount: cases called penal are comparatively barren.

When the immediate effect is no more than dilatory, the evil is not so complete, nor in every part certain. But, to a more or less considerable extent, evil has place in every such case—evil by delay; and delay of justice is, so long as it lasts, denial of justice: add to this, evil by expense of the repetition:—that evil, out of which cometh forth that same relative good—Judge and Co.’s profit—the contemplation of which constituted the motive and efficient cause by which the arrangement was produced.

Add now the effect of the instruments of regularly organized delay called terms and circuits, combined with that of the blind fixation principle, applied to days. Now, in the case of a new trial, comes an interval, in some cases, of half-a-year, in others of a whole year, interposed between the original series of proceedings, and the repetitional proceedings, if granted. In this state of things, to a prodigious extent, the dilatory operation of the virtual nullification put upon the original set of proceedings becomes in effect peremptory and conclusive. A necessary witness dies, goes off of himself to the antipodes, or is bought off: of the suitors, at whose charge, in case of nullification, the quibble has been made to operate, or without need of nullification the necessary piece of evidence has been kept out of the way, the purse or the spirits have become exhausted. As often as this has place, the dilatory effect, though in name and outward appearance less pernicious than the peremptory, is in reality much more so: the expected remedy is extinguished: and to the expense and vexation attached to the pursuit of it, a fresh quantity is added.

Such is the advantage which, by the so elaborately and successfully organized system, is given to dishonesty when conjoined with opulence, that, in many instances, to the purpose of the preponderantly opulent depredator or oppressor by whom the depth of his destined victim’s purse has been sounded, so far as regards ultimate success, the difference between the peremptory and the dilatory effect of nullification may be made to vanish.

XII.

Device the Twelfth—Juries subdued and subjugated.

Not at the period here in question was this exploit hatched: juries, it seems probable, were not at that time in existence. But it was at that period that the foundation was laid, of the power by which this subjugation was accomplished: and the only use of the inquiry being how the yoke imposed on the people by Judge and Co. may be shaken off—a yoke of which this forms no inconsiderable a portion, a topic so important could not be left untouched.

The origin of the jury institution is lost in the clouds of primeval barbarism: inference must here be called in to do the work of narrative. That which inference suggests is this: Of some greater number, twelve or any other determinate number could not but have been a sort of committee. To the eyes of the historian not uniformly distinguishable was the entire body and the committee. When the one supreme criminal judicatory—the sometimes metropolitan, sometimes travelling judicatory—was instituted, then, all over the country, were extinguished the small territorial and adequately numerous local judicatories, in which the inhabitants in general took that part, which, scarcely in those rude ages, could be well defined, and if ever so well then defined, could not now be determined and stated. What was to be done? Even under the then existing thraldom, subversion, completed at one explosion, might have been too shocking to be endurable. “Come to me, wherever I am, and sit under me, as you do now under your several judges. Come to me: I do not say all of you, for in that case all production would be at a stand—but a part of the number selected from the whole; in a word, a committee; and let the number of it be twelve.” When from one of these small judicatories a suit was first called up to the one high and great one, something to this effect must, it should seem, have been said. The shorter the journey, the less burthensome the duty. Whether this be more or less burthensome, the more important the occasion, the more plausible the excuse for the imposition of that same duty. Thus it was, that practice might make its way by degrees. As to the number, why twelve? Answer—Twelve was the number of the apostles: in favour of no other number could so cogent, unanswerable a reason be assigned.

Be this as it may, in the very nature of the case, never could juries have been altogether acceptable associates to judges. How should they, any more than independent Houses of Commons to Kings? Whatsoever was the disposition of the judge, partial or impartial, crooked or upright, proportioned to the share they took in the business, most frequently by intellectual inaptitude, but sometimes by intellectual aptitude, sometimes by moral aptitude, they would be troublesome. Act they could not, without being so. By their mere existence a troublesome duty was imposed upon the judge: the duty of giving something in the shape of a reason for the course prescribed by him.

Here, then, on each occasion, on the neck of the judge was a yoke, which, if it could not be shaken off, was to be rendered as light as possible. In case of non-compliance, it might by nullification, as hath been seen, be got rid of. but nullification, as hath also been seen, did but half the business. True it is, that, when applied to cases called civil, it could always prevent a well-grounded demand from taking effect; but it could not so constantly give effect to an ungrounded one. Applied to penal cases, it could at pleasure give impunity to crime; but especially in capital and other highly penal cases, scarcely of itself could it be made to subject innocence to punishment.

What remained applicable was a compound of intimidation and delusion: intimidation applied to the will; delusion, to the understanding.

Of the intimidation employed, the one word attaint, will serve to bring to view a specimen. Persons, all twelve, imprisoned; moveables, all forfeited; dwellings, all laid low; habitations, lands, completely devastated; with et ceteras upon et ceteras. Maleficence must have been drunk when it came out with this Pandora’s box; actual cautery applied, as often as a flea-bite was to be cured. Down to the present hour, this is law: continued such by judge-made law. In the course of a few centuries, statute law added a few trifles, that these serious things might remain unaffected. Statute law is repealable: common law unrepealable. Parliaments are allowed to correct their own errors: judges, under the name of the tyrant phantom, remain irresistible, uncontroulable, and incorrigible. No otherwise, it is true, than by compliance on the part of twice the number, could vengeance be taken for the non-compliance of the twelve. But the instances first chosen for this infliction would naturally be those in which, on the part of the sufferers, the delinquency had been least questionable. At any rate, upon Judge and Co. would infliction in such sort depend, that, of non-compliance, attaint could scarcely fail to present itself as a more or less probable consequence.

Of an infliction thus atrocious, the frequency, as it presents itself in the books, is perfectly astounding to a reflecting mind. No otherwise than by attaint, could the effect produced in these days by new trial, be produced in those. As often as a new trial is granted now, conceive the Pandora’s box opened there.

Note well the efficiency of the instrument. Like the fabled razors, it performs the work of itself, without need of a hand to guide it. As it is with corruption, so is it with intimidation. To produce the effect, neither discourse nor expression of will in any other shape, is necessary: for the production of the effect, relative situation is perfectly sufficient. Where the intimidation was inapplicable, afterwards when at length the stream of civilization had washed it away altogether,—remained, as the only instruments applicable, arrogance and cajolery. Of the two instruments, arrogance was, of course, to the operator, the more acceptable. The use of it presented no great difficulty. “The law, (quoth the judge) is so and so.” So far the judge: but what law? No law was there in the case. Who made it? The law—meaning that portion of it to which he gave the force of law—it was he who made it; made it out of his own head, made it for his own purpose, whatsoever that purpose happened to be.

Take, for example, libel law. A libel? What is it? Answer—If I am a judge, any piece of printed paper, it would be agreeable to me to punish the man for. Is he a man I choose to punish? I make it a libel: is he a man I choose not to punish? I make it a non-libel. But is it possible that, to a man in power, it should be agreeable to leave unpunished any individual audacious enough to say anything otherwise than agreeable to a man in power? O yes; it is just possible. Witness Morning Chronicle in the days of Perry and Lord Chief-Justice Ellenborough.

Now suppose a code in existence. Juries are now emancipated. Judges in effect now: no longer dupes; no longer tools; and, by the shackles imposed on the mind, made slaves. Judges in effect now, because ennobled and qualified so to be. The law (say they) is so and so: how should it be otherwise? not be what they thus say it is? The book is opened: there the passage is—they see it. More effectually learned would be the least learned juryman in such a state of things, than, under the existing system, the most learned judge.

To the existing system apply (be it remembered) these remarks: not to an improved system, under which judges would be made responsible, and appeals to a superior judicatory effectual, as well as the appeal to public opinion, strengthened by extension given to publication: under such a system, greater might be the power reposed in the experienced, less in the unexperienced hands.

“Thus stands the law!” Under the existing system, when a declaration to this effect is made by a judge, from what set of men, in the situation of jurymen, can non-compliance, how necessary soever to justice, be ordinarily expected? In this case, that being assumed as true, which, in every common law case, is so opposite to true—that is to say, the existence of the law in question—to the judge must this same law be known, if to anybody; as to these his unlearned pupils, to them it is completely unknown: so the inward consciousness of each man of them testifies. With the law, which thus, at the very moment of its being made, is revealed to them, begins and ends their knowledge. In such a state of things, so effectually, by the consciousness of their own ignorance, were they and are they blinded, their appointed guides may, to any degree, be blind, without being seen by them to be so. Under these circumstances, what but blind compliance could then be—aye, or can now be—the general practice? What exceptions there are, are such as are formed by here and there a rare occurrence, operating upon a rarely exemplified set of dispositions.

Of the acquitted decapitator, mention has been made above. If, by a union of past absurdity and present arrogance, a jury can be brought to this, to what is it they cannot be brought? But, in that case, how much is to be ascribed to judge’s influence, how much to jurymen’s abhorrence of death in the character of a punishment, cannot be affirmed with certainty: and so long as the punishment is death, impunity will, every day, be approaching nearer and nearer to the being every day’s practice.

XIII.

Device the Thirteenth—Jurisdiction, where it should be entire, split and spliced.

Jurisdiction has two fields—the local and the logical: the local, or say territorial, divided into tracts of territory; the logical, divided into sorts of cases. In the local field, that which the interests of justice require is, as hath been seen, multiplicity; in the logical field, as will be seen, unity. So much for reason: now for practice. Where, by the interests of justice, multiplicity was required, the interest of Judge and Co. established, as has been seen, the unity: where, by the interests of justice, unity was and is required, the opposite interest of judicature, that is to say, that same sinister interest will now be seen establishing multiplicity.

From the expression jurisdiction split, let it not be conceived, as if at the initial point of time in question, the field of legislation was, in its whole extent, covered as it were by one large block; and that, at different times thereafter, by the introduction of wedges or otherwise, the block was broken into the existing splinters, connected together, as they may be seen to be, by the conjunct sinister interest. The case is, that it is by degrees, as will be seen, that the aggregate composed of the splinters has been brought into its present so commodious state: namely, in some instances by fissure, in other instances by the gradual addition of portions of new matter spliced to the older. Splitting and splicing—by the union of these two operations has the actual aggregate result been brought into existence.

Matter of the aggregate this: Of the substantive branch of law different masses, three or four: and, for giving execution and effect to them, more than twice as many of the matter of the adjective, or say procedure branch of law; constituted every one of them, chiefly of the fictitious, or say judge-made sort; with only here and there a patch of real law—of legislature-made law—stuck in.

In the keeping of these portions of matter in the hands of different sets of judges, not in the originally placing them in these or any other separate hands, consists, at present, the sinister practice—the device: in the union of them, in each territory, in one and the same hand, the sole remedy.

As to the spliting, in some instances, the operation by which it was effected was performed at one stroke; that is to say, by one statute: call the mode, in this case, the all-at-once or declared mode; in other instances, silently, gradually, and imperceptibly: call it, in this case, the undeclared or gradual mode.

So likewise, as to the splicing.

Short description of the modes of operation in the two processes this:—

Original stock or block, the grand judicial authority, instituted by William the Conqueror, and styled the aula regis: Anglicé, the king’s hall or court.

1. Splinter the first, court Christian, alias Spiritual, alias Ecclesiastical: species of operation, difficult to say whether the splitting or the splicing. Mode of operation, at any rate, the gradual. By the terror of punishment in the future life, it acquired, as will be seen, powers of legislation and judicature in the present.

2. Splinter the second, courts of Exchequer, stock or block, as above, the Aula Regis jurisdiction. Out of the administrative authority, now called the receipt of the Exchequer, instituted for the collection of the revenue, grew the judicative, called the court of Exchequer. Where contestation has place, if and in so far as professional assistants are called in, administration becomes judicature. Mode of operation, gradual; members of the court, a portion of those of the aula regis.

3. Splinter the third, Chancellor’s jurisdiction. Stock or block, the Aula Regis jurisdiction. This functionary, decidedly a member of the Aula Regis, officiated therein as secretary of state: and, at the same time, his being the office from which issued the instruments, still styled original writs—instruments, by which commencement was given to so many sorts of suits, exercised thereby, in subordination to the legislative authority of the monarch, a sort of unperceived, but not the less real authority of the same kind. Species of operation, the splitting: mode, the gradual.

4. Splinter the fourth, jurisdiction of the court of Common Pleas. Stock or block, the jurisdiction of the Grand Justiciary. Species of operation, the splitting. Mode, the all-at-once mode. Splitting instrument, magna charta: remnant of the original stock or block, the court of King’s Bench. Business now styled civil, allotted to the Common Pleas; business now styled criminal or penal, reserved to the King’s Bench: also, either reserved by original institution, or acquired by encroachment, the appellate’s superiority over the Common Pleas.

5. Splinter the fifth, equity jurisdiction of the Chancellor’s court. Stock or block, the aggregate of this same functionary’s authority. Species of operation, splicing: mode silent, unperceived, gradual. Remnants, the common-law business, now styled the petty-bag jurisdiction: petty in name, petty in bulk and nature.

6. Splinter the sixth, equity jurisdiction of the court of Exchequer. Stock or block, the common-law business of that same court. Species of operation, splicing. Mode unperceived, gradual: performed in imitation of the Chancellor’s equity jurisdiction.

7. Splinter the seventh, Bankrupt Petition court. Stock or block, the Chancery jurisdiction. Species of operation, splicing. Mode, the all-at-once mode. Splicing instrument, the statute 34 and 35 Henry VIII. ch. 4.

8. Splinter the eighth, Insolvency court. Stock or block, again the Chancery jurisdiction. Species of operation, splicing. Mode, the all-at-once mode. Splicing instrument, 53 Geo. III. ch. 102: Subsequently applied instruments, 54 Geo. III. ch. 28, and 3 Geo. IV. ch. 123.

9. Splinter the ninth, jurisdiction of the justices of the peace acting collectively in general sessions. Stock or block, the King’s Bench jurisdiction. Species of operation, splicing: mode, the all-at-once mode: splicing instrument, statute 1st Edw. III. st. 2, ch. 16.

10. Splinter the tenth, jurisdiction of justices of the peace acting collectively in not fewer than two at a time in petty sessions. Stock or block—original, the King’s Bench jurisdiction, as above: immediate, the above-mentioned general-sessions jurisdiction. Species of operation, splicing. Splicing instruments, various consecutive statutes. On the part of each, mode of operation, the all-at-once mode: on the part of the aggregate, the most thoughtful, silent, or unperceived and gradual.

11. Splinter the eleventh, jurisdiction of justices of the peace acting severally throughout the suit. Stock or block—original, the King’s Bench jurisdiction: immediate, the general-sessions jurisdiction, as above. Species of operation, mode of operation, and instrument, as above.

12. Splinter the twelfth, jurisdiction allotted to justices of the peace acting severally, and exercising, at the outset of a suit, a fragment of jurisdiction: the suit being, for its completion, transferred to some one of four other judicatories: as to which, see above, Device X. Mischievous transference and bandying. Stock or block—the King’s Bench jurisdiction. Species of operation, splicing. Mode, the all-at-once mode. Splicing instrument, statute 1 & 2 Phil. and Mary, ch. 13.

13. Splinter the thirteenth, jurisdiction of small-debt courts. Original stock or block, the Court of Requests in Westminster Hall, long since abolished. Species of operation, splicing. Mode, in the instance of each, the all-at-once mode. Splicing instruments, a multitude of statutes, each confining its operations to some narrow portion of territory.

Note, that in almost every one of these cases, the course taken for the ascertainment of the truth, in relation to the matter of fact, is different: as to this presently.

Ecclesiastical judicatories for maintenance of discipline among ecclesiastical functionaries:—military judicatories for maintenance of discipline among land-service military functionaries:—the like in relation to sea-service military functionaries. Admiralty prize-courts: on the subject of these judicatories, the demand for explanation not being cogent, and room being deficient, the sole purpose of the mention here made of them is the apprehension lest otherwise they should be supposed to have been overlooked.

Mark here the chaos! Different branches, or say masses, of substantive law, spun out in this dark way by judge-made law, thus lamentably numerous! and for giving execution and effect to them, to each a different mass of procedure, or say adjective law: masses framed in so many different modes, and upon different principles!

Single-justice courts, petty-sessions courts, and small-debt courts, the more entitled to remark, as affording, perhaps, the only instances in which judicial procedure has had for its main ends the ends of justice.

Essentially repugnant to the ends of justice (need it be said?)—essentially repugnant, if anything can be—this system of disunion: proportionally subservient to the actual ends of judicature: hence the arrangement so recently employed in keeping it up: in particular, as between equity courts and common-law courts.

Conducive to the ends of justice will this splitting and splicing work be said to be? Well then: here follow a few improvements, on the same principle. To the bankruptcy court, add a stock-breaking court: to the insolvency court, a non-solvency court, a non-payment court, a non-liquidation court, and a non-discharge court: each, with a different mode of procedure. Taking for the twelfth-cake the jurisdiction of the Aula Regis, let lots be drawn by all these courts, for these their respective styles and titles. Allot to each of these courts one commissioner to begin with; then three commissioners (the number in the insolvency court in its improved state,) then the square of three, 9; then the cube of three, 27: then the fourth power of three, 81; by which last, the number of the commissioners of bankrupts, or bankruptcy, will be surpassed by eight, and proportionally improved upon. To secure what is called qualification, meaning thereby appropriate aptitude, impose as a task and test the having partaken of a certain number of dinners, in some one of four great halls. Of situations of different sorts, in, under, or about these courts, number capable of being occupied by the same person at the same time, ten: by which the number occupied by a son of the ex-chancellor, the Earl of Eldon, will be outstript by one. To complete the improvement, conclude with pensions of retreat, after ten years’ service, and pensions for widows, orphans, and upon occasion, sisters.

At the end of a certain length of time, the existing incumbents will be found, each of them, at the same time insufficiently and more than sufficiently apt, as was the case with the metropolitan police magistrates: then will be the time for adding one-third to their salaries: with or without the like addition to the other just mentioned so equitable and comfortable appendage.

We proceed now to present to the view of the Honourable House the evils, of which this system of disunion is, and so long as it continues in existence cannot but be, so abundantly productive: we shall point out the cause by which it has been produced: namely, the mixture composed of primeval inexperience and sinister interest.

In particular, in regard to imprisonment for debt, on its present footing, to wit, at the commencement of the suit—a period at which it is so frequently groundless, and so constantly ungrounded, it will be seen that it had no better origin and efficient cause, than sinister interest, in its foulest shape: special original cause, as will be seen, of this abuse, the splitting of the Common Pleas jurisdiction from that of the King’s Bench; thereafter immediate cause, the grand battle between the two courts, in the reign of Charles the Second.

The use of confusion has already been brought to view: behold now one pre-eminently useful mode or efficient cause of it. In the practice of a large proportion of all these courts, both branches of law spun out together, the substantive branch out of the adjective, in the shape of twist, by the judge in the course of the operations of procedure, the twist afterwards woven into piece-goods by the firm of report-maker, report-maker’s bookseller, abridgment-maker, and his abridgment’s bookseller: and in this way it is, that, on pretence of judicature, over the whole field of law, power of legislation continues to be exercised: exercised by the combination of such essentially and flagrantly incompetent hands!

Are you a chief justice? Have you a law to make? to make on your old established mode? The following is your recipe. Take any word or number of words the occasion requires: choosing, as far as they go, such as are already in the language: but if more are wanted, you either take them from another language, old French or Latin, or make them out of your own head. To these words you attach what sense you please. To enable you to do, by this means, whatever you please, one thing only is now wanting. This is, that, in the accustomed form, by some person other than yourself (for you cannot yourself, as in some countries, give commencement to a suit,) the persons and things to be operated upon must be brought before you by the king’s attorney-general, or an individual in the character of plaintiff. This done, you go to work, according to the nature of the case. Is it a civil one? To the plaintiff you give or refuse as much of defendant’s property as is brought before you. Is it a criminal, or say penal one? You apply, or refuse to apply, to the defendant, the whole, or more, or less, of the punishment demanded for him at your hands. This you do in the first instance before and without any law to authorize you: for no such authorizing law have you any need of: after which, in the way just mentioned, what you have done receives, in print, authority, extension, and permanence, from the above-mentioned hands, being by them manufactured into a sort of fictitious law doing the office of, and upon occasion overruling, an act of parliament.

From the process pursued in the principal of these manufactories, a conception, it is hoped, tolerably clear and correct, may be formed, of the manner in which this species of manufacture has been, and continues to be, carried on. These are—1. Equity courts; 2. Common-law courts; 3. Courts christian, alias spiritual, alias ecclesiastical courts.

I. Turn first to the self-styled equity courts. Words comprising the raw materials, trust, fraud, accident, injunction, account, with the word equity at their head—here we have the whole stock of them, or thereabouts: stock in words small: but in matter as abundant as heart can desire. One of them, the master-word equity—so rich is it, that out of it, and by the strength of it, anything could yet, and to this day can be done, that lust of power or money can covet. What can it not do? It can take any ward, every infant, out of the arms of any and every father, and at the father’s expense, keep cramming it with the pap of imposture and corruption, till the father is reduced to beggery, and the entire mass of the child’s, rendered as foul as that of the crammer’s mind.

Equity? what means it? A bettermost, yes, and that the very best, sort of justice. But, justice being, the whole together, so good a thing, what must not this very best sort be? Be it what it may, that which, on each occasion, is done by the judge of an equity court, is it not equity? Well then, by the charm attached to this fascinating word, to whatsoever he does, not only compliance and acquiescence, but admiration and laud, in the accustomed and requisite quantity, are secured.

II. Next as to the common-law courts; and in particular the great criminal-law court—the King’s Bench.

Conspiracy, blasphemy, libel, malice, breach of peace, bonos mores, with their et cæteras—of these raw materials is composed the stock of the common-law manufactory. That which equity does for chancellor, that or thereabouts, the single word, conspiracy, would of itself be sufficient to do for chief-justice of King’s Bench. With this word in his mouth, what is it a chief-justice cannot do? who is there he cannot punish? what is there he cannot punish for?

Persons conspire, things conspire—to produce effects of all kinds, good as well as bad. In the very import of the word conspiracy is therefore included the conspiracy to do a bad thing: now then, so as proof has been but given of a conspiracy, that is to say, of the agreeing to do a something, or the talking about the agreeing to do it, the badness of this same something, and the quality and quantity of the badness, follow of course: they follow from the vis termini, the very meaning of the word, and may therefore without special proof be assumed.

So far, so good, where you have two or more to punish. But how if there be but one? In this case, a companion must be found for him. But this companion it is not necessary he should have a name: he may be a person unknown: for, because one of two criminals is unknown, is it right that the other should escape from justice?

So much for the King’s Bench manufactory taken singly. Now for ditto and Common Pleas united, cases and suits called civil: verbal stock here—case, trover, assumpsit, with their et cæteras.

Conspiracy, blasphemy, peace, and malice—these words were found already in the language, and, whatsoever was the occasion or the purpose, required only a little twisting and wresting to make them fit it. Bonos mores, trover, and assumpsit, had to be imported; bonos mores and assumpsit from Italy; trover from France: all of them had to undergo, in the machinery, more or less of improvement, ere they were fit for use. Face would have been as intelligible as case, and served as well, had fortune been pleased to present it; clover, as trover: mumpsit as assumpsit: but case, trover, and assumpsit, had fortune on their side.

III. Now as to Court Christian. No fissure, violent or gradual, requisite here. Nothing requisite to be done otherwise than in the quiet way, by splicing: by splicing performed imperceptibly, and in the dark; in the pitchy darkness of the very earliest ages: no need of custom, of snatching, in the manner that will be seen presently, from any other branch of the Judge and Co. firm: simple addition was the only change needed.

Mode of proceeding, or say recipe, this:—Take any act of any person at pleasure; call it a sin: add to it a punishment; call the punishment a penance. Observe, that the agent has a soul: say, that the soul wants to have good done to it: say that the penance will do this good to it. If, frightened at the word sin, the people endure to be thus dealt with, anybody is employed to accuse anybody of any one of these sins: if then he fails to make answer in proper form, you make him do this penance: so, of course, in case of conviction.

Now as to fees. Fees you receive for calling for the answer: fees for allowing it to be made: fees for making it; and so on successively for every link in the chain. But, suppose no such answer made? Oh, then comes excommunication: an operation, by which, whether he does or does not think that he will be made miserable in the other world, he will at any rate be made sufficiently so in this.

A circumstance particularly convenient in this case, was and is, that, besides the fees received in the course of the prosecution, the penance and the excommunication themselves have been made liquifiable into fees.

Sin, in this case, it was necessary should be the word: not crime or civil injury. But the same obnoxious act might, and may still, be made to receive all these different appellations; and, on account of it, the agent dealt with in so many different ways; made, to wit, after the truth of it has, by the three different authorities, in and by their several different and mutually inconsistent processes, been ascertained.

The act suppose a blow, and the sufferer, a clergyman. Common Pleas gives to this same sufferer money for remedy to the civil injury: King’s Bench takes money from the man of violence, for the king: Court Christian takes money from the same for the good of his soul, distributing the bonus among the reverend divine’s spiritually learned brethren.

True it is, that, upon proper application made,—one of these same judicatories (the King’s Bench to wit,) may stop proceedings in one of the others—the Court Christian to wit. But defendant—what gets he by this? One certain suit, for the chance of ridding himself of another. And note, that in this fourth suit, the mode of establishing the fact which is the ground of the application is different from every one of the modes respectively pursued in the other three.

Such is the species of manufacture: spinning out of words, the sort of piece-goods called law, and that of the goodness that cloth would be of, if spun out of cobwebs. Now then, even from early time—time so early as the year 1285—time not posterior by more than two centuries to the original period all along in question—what need or pretence has there been for it? Not any. So early as the year 1285, parliament gave birth to an idea, by which, had it been pursued, appropriately-made law might in no small proportion have been made in such sort as to occupy the place usurped by the spurious sort thus spun out blindfold, in the ex-post-facto way, in the course of judicature. At the tail of a paragraph, having for its subject-matter an odd corner of the field of law, the scribe of that day, as if by a sudden inspiration, soars aloft, and as if from an air-balloon, casting his eyes over the entire field, goes on and says, “And whensoever from henceforth it shall fortune in the chancery, that in one case a writ is found, and a like case, falling under the law, and requiring like remedy, is found, the clerks of the chancery shall agree in making the writ:” after which, for appropriate confirmation, follows reference duly made to the superordinate authority, the next parliament.

Behold here provision made for codification. Here was seed sown, but the soil not yet in a state to admit of the growth of it. In the barbarous mode of ex-post-facto judge-made law, were therefore of necessity fumbled out such indispensable arrangements, without which society could not have been kept together.

For ages, by common law alone, equity not being grown up to sufficient maturity, were these arrangements made. But, after all that had been thus done, and amidst all that was afterwards doing by common law, abundant and urgent remained the need of such arrangements, in addition to those the topics legislated upon, in this same blind and spurious mode, by chancellors, with the word equity in their mouths, may serve to show.

1. Trust, 2. fraud, 3. accident; these three have been already mentioned. Add to them—4. injunction (meaning prohibition,) as to use made of property in immoveables; 5. injunction as to pursuit of remedy at common law; 6. account; expressions all these so handy and commodious, because single-worded. Add to them moreover, 7. obligations to deliver in kind, things due; 8. obligation to perform in kind, services due: these, with the exception of injunction, as applied to common-law suits, belonging to substantive law. Add to all, the following, which belong to adjective law, or say judicial procedure: 9. elicitation of evidence, from the parties on both sides,—oral from their testimony, real and written from their possession; 10. at the time allotted to elicitation of orally elicited evidence, the quantum rendered always adequate to the demand; 14. elicitation and recordation made, for eventual use, without actual suit.

All these objects had and still has common law, as we shall show, left in a manner to shift for themselves: left either without any provision at all made for them, or without any other than such by which the purpose cannot, in any tolerably adequate degree, be answered.

Think now, of the enormity of the deficiency left, and inaptitude exhibited, by the assemblage of all these gaps:—

1. First, as to trust. Think of a system of law, under which, in relation to this head, nothing, or next to nothing, was done. Over the whole field of law, particularly over the civil, extends the demand for the matter which belongs to the head of trust. Power exercisable for the benefit of the possessor, it is called power: power, in so far as not exercisable but for the benefit of some other person or persons, is called trust. In particular, in the hands of all public functionaries, considered as such, what power soever has place, is so much trust.

2. Secondly, as to fraud. Over the whole expanse of the field of law, more particularly the penal branch, extends the need of provision in relation to fraud: in whatever shape maleficence operates, fraud shares with violence the privilege of officiating as its instrument.

3. Thirdly, as to accident. Of the import of this term, the vagueness immediately strikes the eye. But, for bringing to view some conception of the application on this occasion made of it,—the two words—conveyance and obligatory-engagement, may here serve. Of the provisions requisite to be made under this head, the principal beneficial purpose is the prevention of disappointment: the grand and all-comprehensive purpose, by which the purport of the portion of law occupied in the giving security for property, requires to be determined.

4. Fourthly, as to injunction, applied to the purpose of restraining mischief to immoveable property; injunction, meaning interdiction, or say inhibition or prohibition: for, in ordinary language, we speak of enjoining a man to do a thing, as well as to forbear doing it. As to the operation performed under this name by a court of equity, it has for its correspondent and opposite operation that which, under the name of a mandamus, is performed in the courts of common law. In the case of the mandamus, the act commanded is a positive act; in the case of the injunction, commonly a negative act.

Note here, by the bye, that to the provision made by both these remedies together, belongs the property of inadequateness. For, to the evil, whatsoever may have been the amount of it, which, antecedently to the attempt made by them respectively to stop it, has already taken place—no remedy do they attempt or so much as profess, to make application of: no compensative remedy, no satisfaction in any other shape, no punitive: and at the charge of an honest, what is the profit which a dishonest man will not be ready to make, if assured that the worst that can happen to him for it, is the being stopt from making more? To himself no punishment; to the party wronged no satisfaction? But, as to any such ideas as those of all-comprehensiveness and adequacy, nearer would they be to a bed of Colchester oysters, than they are to a bench of English judges!—a bench—whatsoever be the number of seats on it, whether one, four, or twelve.

5. Fifthly, Injunction, as applied to the pursuit of remedy at common law. Now for a riddle. To itself by itself this operation would not naturally be expected to be seen applied: it would be to the same operation performed by equity, what suicide is to the species generally understood by the name of homicide. As little would it, under the same judicial establishment, have been applied to the operations of any judicatory, by another calling itself a court of Equity, if, to common sense, in union with common honesty, it were possible to obtain admission into such a theatre. Setting up one judicatory, to put a stop, at the command of any man that will pay for it, to the operations of another, and frustrate what in profession were its designs, and this, without so much as a supposition of error on the part of the judicatory so dealt with,—in an arrangement such as this, may be seen a flower of ingenuity that assuredly would in vain be looked for in any other field than that of English judicature. But, though no common-law court, as such, nor therefore any common-law court which is merely a common-law court, has as yet, it is believed, been in the practice of thus dealing by itself, yet an English judicatory there is, which, being, like the marine corps, of an amphibious, and moreover of an ambodextrous nature, has been, and as often as called upon continues to be, in the practice of robbing the chancery shop of this part of its custom, by employing one of its hands in tying up the other, and one portion of its own thinking part, such as it is, in frustrating what had in profession been the designs of the other. This riddle is the court of Exchequer. For a parallel, suppose this:—Enactment that no public building shall ever be erected—no church, no palace, no prison, no posthouse—without employment successively given to two architects, the first to erect a building in one style—say the Gothic—the second to pull it down, and erect upon the site of it another in a different style—say the Grecian. Taken in both its parts, matched thus in absurdity would the equity injunction system be: exceeded it would not be: were the mental cause of the evil mere folly without knavery, Gotham itself would find itself here out-Gothamised.

6. Sixthly, as to account. Think of a judiciary establishment, with three superior courts in it, professing, each of them, to settle mutual accounts to any amount, and on that ground receiving fees before anything is done, and at the hands of all applicants: these professed auditors two out of the three all the while unprovided with the machinery, without which that which they undertake to do cannot be done.

The case is—the process of account is—not, as in other cases, a simple and transitory, but a compound and a continuous process, the subject-matter being an aggregate, composed of two sets of demands; made one on each side, each of them, in case of contestation, capable of affording the matter of a separate suit. The process, continuous as it is, the Common Pleas the only one of the three courts which, in a case between subject and subject, took cognizance of it by right, gave itself no means of performing, otherwise than within the relatively short and determinate space of time, into which the business, if performed at all, could be injected and condensed, like the business of a play, under the dominion of the unities. This business the only judicatory capable of going through in all cases, is the Equity court. This has, it is true, machinery enough, and takes time enough. But, the machinery of it having for its object and effect the multiplication of fees, and thence the prolongation of time, the only sure result is the division of a large proportion, if not the whole, of the property of the accountant parties, among the tribe of auditors: and it is like a prize in a lottery, if any portion of the net balance finds its way into the pocket of him to whom it is due.

7. Seventhly, as to delivery of things to the right owner: the case of restitution included. Think of a system of law, by which no one moveable thing whatsoever was, or to this day is, so much as undertaken to be secured to the rightful owner! No: not so much as undertaken. For if a man, not even imagining himself to have right on his side, has possessed himself (as, without exposing himself to punishment, he may do) of whatever moveable thing of yours you most value—(a horse, a picture, an unpublished manuscript, for example)—what remedy have you? An action. Behold now how much better off, in this case, your dishonest adversary, the wrong-doer, is, than you, the party wronged! Only in case of its not being worth so much as it is valued at, does he give you back what he has thus robbed you of.

And by this action, what, even in case of success, is the utmost you can get? Not (unless the man who has thus injured you so pleases) the thing itself, but, instead of it, what is called the value of it: this value being what has been set upon it at full gallop, by twelve men brought together by chance: twelve men, not one of whom, unless by accident, understands anything about the matter. The estimate having been thus made, this same wrong-doer it is, who, after the days or months he has had for consideration, takes his choice, and determines whether to let you have your property back again, or to convert it to his own use. And this money, when the jury have awarded it to you, will you have it clear? Not you, indeed: not this money will you have, but the difference between this and what you will have to pay your attorney, after he has received what, in the name of costs, has been awarded to you at the expense of the wrong-doer. And the amount of that same money received—what will it be? Something or nothing, or less than nothing, as it may happen: provided always that the said wrong-doer has the money, and that money capable of being reached by the so precariously effective process of the law: estates in land, money in the funds, shares in joint-stock companies, with property in an indeterminate number of other shapes, being of the number of things not thus reachable.

8. Eighthly, as to fulfilment of obligatory engagements. Think of a system of law, which gives not effect to any one sort of engagement, which men, living in society, have need to enter into, unless the intended violator of the engagement pleases.

In this case, behold the same favour to the wrong-doer as in the just-mentioned case: instead of fulfilment, money received from the dishonest man, if he has it, and choose to give it; unless he choose to give it, none. Agree, for example, for the purchase of an estate. Common law does not so much as profess to give it you. Natural procedure would give it you in a few days. Equity will give it you or not give it you, but when? At the end of several times the number of years.

The case is, that, bating the obtainment of a lot of land in entirety, or a portion of it by partition among co-proprietors, or a portion by a writ called an elegit, in lieu of a debt,—a process too complicated and rarely exemplified to be worth describing here,—such is the lameness of the law, that, for administering to a party wronged, satisfaction for the wrong, the only species of remedy which the common-law partners in the firm of Judge and Co. are (saving the narrow exception afforded by the case of a mandamus) to this hour provided with, is that which consists in money: money of the defendant’s, if, after paying charges, by good fortune any such money is left, and can moreover be come at: for which purpose, the sheriff of the county, that is to say, under his name, and by his appointment, a nobody-knows-who seizes and causes to be sold whatever is come-at-able and saleable: the remedial system being in such a state, that a man may have to the amount of any number of millions in the shape of government annuities, and each one of a variety of other shapes, without the sheriff’s being able, were he ever so well disposed, to come at a penny of it: one consequence of which is, that a dishonest man, with other men’s money in his hands, may consume it in luxuries, or do anything else with it he pleases, if he had rather continue in a comfortable apartment in a prison, than part with it.

So much as to substantive law: now as to adjective law, and therein as to evidence.

9. Ninthly, as to elicitation of evidence from the testimony and the possession of parties. Think of a set of judges, with whom it was and still is a principle, to keep justice inexorably destitute of evidence from this its most natural, most instructive, and oftentimes sole and thence indispensably needful, source!

A defendant (suppose) is in court. Is this, or is it not, your handwriting? My lord chief-justice—will he put any such question to him? Not he, indeed. Will he suffer it to be put to him? As little. Good reason why. Infinite is the crop of fees that would be nipt in the bud by any such impertinence: and if a question of this sort were to be allowed to be put, what reason could be given for refusing to give allowance to any other?

Considering how unpleasant it would be to a dishonest man, with an honest man’s money in his hands, to part with it; still more so to a malefactor to do anything that could contribute to his punishment—considering all this, and in all sincerity sympathizing with these their partners and best friends—conscience, in these tender hearts, revolts at the idea of any such cruelty. Thus it is with the common-law branch of the firm.

Somewhat less sensitive are the nerves of the equity branch. Evidence it has brought itself to draw from this so surely reluctant source. But it is on one condition: and that is—that years be employed in doing that which might be so much better done in a few minutes, and pounds by hundreds or thousands in doing that which might be so much better done at no expense.

10. Tenthly, as to the time allotted to the elicitation of really elicited evidence; and the adjustment of the quantity of it to the demand. Very little to the taste of the common-law branch is any apt adjustment of this sort. In what manner it reconciles opposite mischiefs—delay and precipitation—turning them both to account, has been shown under these same heads. General rule—the less the quantity of such evidence, and the less the time consumed in the elicitation of it, the better: for nothing is there to be got by it. As to elicitation in the epistolary mode, nothing, even at this time of day, does common law know of any such thing. For this employment of the pen, neither at the primeval period in question nor for many centuries thereafter, were hands sufficient to be found. That sort for which alone there was, in all that time, clerk power in sufficiency, was that which, being essentially false, was distinguished, as above mentioned, by the name of pleadings—written pleadings: and by which, as much money thus employable as the pecuniary means of the country could furnish, was to be got. So much for common law. For equity it was that fortune reserved this the richest mine in the field of procedure. Observing how much was to be got by penmanship, it sets its inventive genius to work, and having invented this new mode of elicitation, stept in, proffered its services, and got to itself this new branch of the evidence-eliciting business: terms and conditions as usual; time, by years: pounds, by hundreds or thousands, as above.

Under the head of the mendacity device reference is made to the present one, for a hot-bed, and mode of culture, in and by which this fruit, so delicious to learned palates, is forced. Now for a sketch of it. Frequently, not to say generally, a part more or less considerable, of the evidence necessary to substantiate the plaintiff’s case, has for its source the recollection of the defendant. Of course, not always without more or less of hurt to his feelings can this sort of information be furnished by this same defendant. In tender consideration thereof, common-law judges, as above, refuse so much as to call upon him, or even to suffer him, to furnish it. The keeper of the great seal and of the king’s conscience is not quite so difficult. He has his terms, however, to make with the plaintiff, and they are these: “Whatever the defendant knows that will help your case, you will, of course,” says his lordship to the plaintiff, “be for asking him for, and putting questions to him accordingly. Good: and the answers he shall give. But, it is upon this condition. Before you ask him how the matter stands, you must yourself begin and tell him how it stands: otherwise, no answers shall you have. This is what you must do, as to every fact you stand in need of. Now then, to do this, you must, of course, for each such fact, have a story framed, such as will suit your purpose: but that it is your counsel’s business to do for you: he, and he alone knows what is proper for the occasion. What it consists of, is a parcel of lies, to be sure. But that’s his concern, not your’s: you have not to swear to them. I and mine get money by all this: so there is no harm in it: and, as you do not swear to it, you can’t be punished for it.

“As to another world, that to be sure there is, and with a God’s court in it. But there, it is your counsel that will have to answer for it, not you: you can’t help it: no, nor he neither, without losing his fees. I, for my part, have some thousands of these lies upon my back, or I should not be where I am: look at me: what am I the worse for it?”

11. Eleventhly, as to elicitation and recordation, made, for eventual use, without suit. Be the occasion what it may, be the source what it may, evidence obtainable to-day may cease to be obtainable to-morrow. Here then may be seen a deficiency: but, as to the want of supply for it, at the early age in question, no wonder it should have had place. In the field of justice, much insight into future contingency was not to be expected from men who, to so vast an extent, were blind to what was, in this same field, passing under their own noses.

For this deficiency, equity had no objection to afford a supply: but of course upon her own terms,—those terms, which have so often been brought to view. Those terms required a suit on purpose: for, a suit was necessary to equity, how little soever necessary to justice.

As to recordation,—at the early period above mentioned, clerk-power enough there was for the pleadings—the mixture of lies and absurdities above described; none was there for the evidence, the only sort of matter which presented a chance of being chiefly composed of relevant and material truths. Accordingly, in the mass of matter called the record, no sort of matter can there be so sure of not being found, as that which stands distinguished by the name of evidence.

Not but that, to prove its own existence, the entire hodgepodge may, on a particular occasion (fees being first received,) be admitted under the name of evidence: to prove, for example, that a man was convicted of murder: but by what it was that the murder was produced—whether, for example, by an endeavour to kill the man, or by an endeavour to kill a fowl, (for, for this has a man been convicted of murder)—if this be what at present you want to know, in the newspaper you may be sure to find it; in the record you will be sure not to find it.

Such, for exigencies of all sorts, being the provision made by common law before the birth of equity,—made in the common-law courts, before the formation of the equity courts,—behold now the account given of it by Blackstone.

Speaking of an old book in Latin, called the Registrum Brevium,—composed chiefly of forms of orders called writs, given in the name of the king to the sheriffs,—in it (says he, III, 184,) “Every man who is injured will be sure to find a method of relief exactly adapted to his own case, described in the compass of a few lines, and yet without the omission of any material circumstance.” So much for Blackstone. To the dream of this reporter, would you substitute the sad reality? For a put no: for omission put insertion: make these corrections, the picture will be nearer the truth. Dates none, arrangement none, other than the alphabetical, either in the collection itself, or in Judge Fitzherbert’s commentary on it, and in the additions made to that commentary in any subsequent editions made of it. So much for the universal oracle. Such is the source from whence the notions of the universal unlearned, as to what the law is, have down to this time been derived!

To return to Equity court. In the provision made by common law, gaps requiring to be filled up, sure enough sufficient: sufficient in number, sufficient in magnitude: necessity of filling up sufficiently urgent. But, for the filling them up, was any additional court, either a necessary or so much as a proper instrument? An additional court thus kept distinct and separate from the court to which it was added? More particularly, a court invested with such powers as, in relation to the court it was added to, were assumed by this same so called court of equity?—a court superior to it in effective power, and yet without being, either in name or nature, a court of appeal from it? Taking up the matter at the pleasure of any man, who, without any ground whatsoever, would pay the price set upon the injustice at any stage of the suit, riding over the competent authority, and rendering useless everything that had been done, and throwing away every penny that had been expended in that same judicatory? The thus maltreated judicatory all the while not the less abundantly lauded, for the being regarded as requiring to be thus dealt with?

A sort of severance this, mischievous enough,—and, as such, worthy enough of remark at any time. But, at present, a circumstance which gives to it, in the particular case in question, a particular degree of importance,—gives, to the particular case of severance here in question, and produces accordingly the need for thus dwelling on it, is—the care, which, on the occasion of the recently instituted improvements, has been taken, to keep it up (this same severance,) and, of course, along with it, the uncertainty, delay, vexation, expense, and lawyer’s profit, engendered by it.

Lastly, as to the aggregate composed of the four courts thus instituted,—the several separate denominations of necessity attached to them, the jurisdiction formed by the several splinters thus put side by side, and the mischievous consequence flowing of course from the very nature of the operation—splitting and splicing operation.

Of the application thus made of so many different names, the consequence is—the implied information and assurance of the existence, and thence of the necessity, of so many different natures, and modes of proceeding on the part of the several courts thus differently denominated.

In the case of these denominations, what serves to fix and thicken the cloud composed of them is, their being derived from different sources: in some cases, the source is the name of the species, or rather, as will be seen, the sub-species of suit; in other cases, the initiatory process—that is to say, the written instrument by the delivery of which, or the operation by the performance of which, the suit takes its own commencement. Behold them; here they are:—

I. Under the species of suit termed civil, name of the initiatory process, if in the Common Pleas, action: if in the King’s Bench, in one sort of case, action likewise; in another sort of case, comes the name of the instrument, mandamus; name of an operation by which it is preceded, motion for a mandamus; in another sort of case, name of the instrument, quo warranto; name of the antecedent operation, motion for a quo warranto: in an Equity court, including the equity side of the amphibious court—the Exchequer—bill; in the common-law side thereof, action; in another sort of case, in a Christian court, name of the instrument, libel.

II. Under the species of suit termed criminal or penal—common to all these courts in one sort of case, is one sub-species, attachment: to which denomination is in some cases substituted the circumlocutory and milder denomination, constituted by the antecedent operation—motion that the defendant may answer the matter of the affidavit (this being the initiatory instrument:) in another sort of case, in the King’s Bench, name of one sort of instrument, indictment; in the same sort of case, in that same court, name of another sort of instrument, information: name of the antecedent operation, motion for leave to file aninformation: in the same sort of case, still in that same court, name of the instrument again, information: name of the antedent operation, filing an information, to wit by the attorney-general, without motion; in another sort of case, in the Exchequer, name of the instrument qui tam information: in another sort of case, in the Christian court, name of the instrument, libel again: note here, by the bye, in the case of this word libel, the confusion further thickened, by the giving to one and the same appellative the commission of officiating as the sign of two opposite things signified: namely, an alleged disorder, and a professed remedy.

Sufficient, it is hoped, this exhibition, without the addition of the rarer sorts of suits, such as the scire facias and its et cæteras.

Such is the enrichment which the vocabulary of English jurisprudence has actually received, from the principle pursued by this practice: the employing different operations with different instruments, for the attainment of the same end. What bounds are there to the ulterior enrichment, which, from the same principle, it might, with as good reason, be made to receive? Take a few examples:—

First, as to courts: by multiplication given to the names, and with them to the species, of these judicatories. One example may here serve. Take for a model the court of equity, with this its sentimental name: additional courts with like imitative names—court of probity, court of integrity, court of common honesty, court of honour, court of righteousness: another such winning name, court of conscience, in point of propriety, forming a striking contrast with the court of equity, has already been brought into employment by statute law.

Take secondly and lastly, for the instrument of multiplication and confusion, the name of the instrument, by which commencement is given to the process. Model, in this case, the word libel;—a word meaning, in the original Latin, a little book: proposed imitative names of instruments—leaf, sheet, roll, scroll, volume. Yes, volume: for, in some cases, in equity more especially, scarcely to the existing sort of instrument—the bill, to wit—would even this appellative, notwithstanding the seeming exaggeration, be altogether misapplied.

Now as to the degree of appositeness, with which the signs are here coupled with the things signified. For an emblem of it, take two hats: into one put the things; into the other the signs; which done, then, having drawn out of the one a thing, draw out of the other a sign for it: as, on a Twelfth-day, styles and titles are coupled with slices of cake and names of cake-eaters.

In the aggregate of all this surplusage, may moreover be seen, one out of the host of visible examples, of the way in which, by the English lawyer, as by the astrologer,—and for the same purpose,—has been created, out of nothing, a sort of sham science.

Correspondent to this science, with the art belonging to it, is the list of official functionaries, employed, on this occasion, in the exercise of the art. Note well the multiplicity and ingenious variety of their denominations. By one single one alone of the four Westminster-hall courts, the King’s Bench, is furnished the list which follows. But, for a standard of comparison, note first the sorts of functionaries which, under the official establishment hereinafter proposed for giving execution and effect to the here proposed natural system of procedure, would be requisite and necessary under the command of the judge. Here it follows:—1. Registrar; 2. Prehensor, or say Arrestor; 3. Summoner; 4. Doorkeeper; 5. Jailor. Now then follows the list of those actually in existence as above under the King’s Bench:* —“1. Chief clerk; 2. Master; 3. Marshal of King’s Bench prison; 4. Clerk of the rules; 5. Clerk of the papers; 6. Clerk of the dockets, judgments, satisfactions, commitments, &c.; 7. Clerk of the declaration; 8. Clerk of the common bails, posteas, and estreats; 9. Signer of the writs; 10. Signer of the bills of Middlesex; 11. Custos brevium; 12. Clerk of the upper treasury; 13. Clerk of the outer treasury; 14. Marshal and associate; 15. Sealer of the writs; 16. Judge’s clerks; 17. Sheriffs of London and sheriff of Middlesex; 18. Secondaries; 19. Under-sheriff; 20. Ushers, tipstaffs, &c.” Here at length ends the list of the swarm of locusts which buzzes about this one of the four courts—the King’s Bench: places of feeding, no fewer than ten: some of them not less than three miles from one another. Calculate who can, the quantity of time consumed, with expense correspondent, by attorneys, in the journeys necessary to be made all over this labyrinth.

XIV.

Result of the Fissure—Groundless Arrest for Debt.

Comes now the battle royal:—battle of the courts: battle for the fees. Result, groundless arrest. As at present, on pretence of debt: effect, imposed on innocence an aggregate of suffering, vying in severity with that inflicted on the aggregate of crime.

Let it not here be supposed, though it were but for a moment, that, on imprisonment for debt, condemnation without reserve is meant to be pronounced. Condemn in the lump—condemn without exception—imprisonment, and even imprisonment for debt; for debt you would condemn all satisfaction, and as well might you, for all crime, condemn all punishment.

Look for the proper time, you will find it in that of the second of the operations requisite to be performed in the course of the suit: at the time of, and by, the first, the existence of an adequate demand for this same second operation having been ascertained: improper time, that of the first operation: this same first operation being the arrest itself, performed without any such ascertainment: performed by the judge, without inquiry, and at the pleasure of any one who will purchase of him this service, at the price he has set upon it:—upon so simple a distinction turns, in this case, the difference between the perfection of good, and the perfection of evil.

Ascertained (asks somebody,) the existence of this same adequate demand, by what means? Answer: By this means—To give commencement to the suit, attends in court the plaintiff, and stating his demand, states at the same time the need there is of the arrestation: subject-matter of it, either the body of the proposed defendant, or some property of his, or both: this operation in the next instance: otherwise on hearing of the demand, off go person, or property, or both, and therewith all hope of recovery for the debt—all hope of effectual justice.

Mark now the security afforded by the here proposed course, against the oppression now so completely established, and so abundantly exercised—the oppression exercisable at pleasure by any man in the character of plaintiff, on almost any man in the character of defendant: at the same time, the superior efficiency of the means afforded for the recovery of the debt.

Being thus in the presence, the applicant is completely in the power, of the judge: unlimited is the amount of the punishment, to which, in case of purposed and mischievous misrepresentation, he may be subjected. In this state of things, two opposite dangers present themselves to the judge’s choice: in case of the non-exercise of this power of precautionary seizure,—danger of injustice to the detriment of the plaintiff, by loss of the debt; in case of the exercise of this same power, danger of injustice, to an indefinite amount, to the detriment of the proposed defendant thus dealt with.

Between these two opposite mischiefs, who does not see, that no otherwise than by a scrutiny into the circumstances of each individual case, can any tolerably well grounded choice be made? and, for this scrutiny, no source of information has place as yet, other than the evidence of the applicant, extracted by his examination: an information, without which, or any other, under the existing system, arrestation is performed without scruple; that is to say, on the body; and with as little might it be, though at this stage of the proceedings it never is, on property.

This power, then, either it is exercised, or it is not. If yes, security will need to be taken for two things: 1. For the applicant’s effectual responsibility, to the purpose of compensation or that of punishment, or both, as the case may require; 2. For his being eventually reached by a mandate, or, in case of need, by a functionary armed with a warrant for arrestation, wheresoever it may happen to him to be, during the continuance of the suit:—a security this last, the demand for which (it may be seen) has place in the instance of every person, to whom, for whatever purpose, in whatever character, it happens to have presented himself to a judge: a security with which, for reasons that will be seen, Judge and Co. know better than to have provided themselves with.

Why say attendance, not appearance? Because, by lying lips and pens, the word appearance has been to such a degree poisoned, as to be rendered unfit for use. When, in the record, entry is made of what is called the defendant’s appearance in court, what is the real fact? Never that he, the defendant, has made his appearance in court; always that an attorney employed by him has made his appearance: nor even this in the court, but in another place; to wit, in one of the offices, of the nature of those contained in the above-mentioned list.

To return to the applicant’s here proposed actual attendance. In most instances it will be possible, and with advantage practicable. But in some instances it will be either impossible, or not with advantage practicable. Of these last cases, for the purpose of the here proposed system, a list has been made out: so likewise of all the shapes, of which the just-mentioned security is susceptible; which list may be seen below: so likewise of all the several diversifications, of which the mode of securing intercourse, or say communication, with an applicant, or any other person who has made his appearance during the continuance of the suit, is susceptible.

For the institution of this little cluster of arrangements, a combination of common sense, and common ingenuity, with common honesty, was indeed necessary, but at the same time sufficient. In the provision made by the existing system, where is there to be seen any symptom of the union of these same requisites? How should there be? Without the existence of the applicant in the presence of the judge at the outset of the suit, nothing of all this can be done: and, as there is such continual occasion to observe, scarcely can the presence of a dun be more appalling to a spendthrift, than, in a civil case, to an English supreme-court judge, the presence of an individual, whose property (and under the system of mechanical judicature, as hath been seen, in most cases without knowing anything about the matter) he is disposing of.

Now, for want of some such as these proposed arrangements, under the existing system, behold the state of things. General rule this: At the pleasure of any man, without grounds existing, or so much as pretended to exist, any man may be arrested and consigned to a jail, with no other alternative than that of being, if able and willing to pay for the accommodation, consigned to an arresting-house, called a lock-up-house, or a spunging-house.

Exceptions are—1. Where the debt does not amount to so much as £20; 2. Where, when it does amount to that sum, the plaintiff omits to make an affidavit, whereby he avows upon oath that the sum demanded by the suit is justly and truly due. And this, without adding upon the balance: so that a man to whom another owes £20,000, may be arrested by him, on a particular account specified, for £20. Originally the sum mentioned on the occasion and for the purpose of the limitation thus applied, was no more than £10: it is by a recent act that it has been raised to this same £20, in the year of our Lord 1826: original act, that of the 12 Geo. I. ch. 28; year of our Lord 1725. Date of the act under which, for the benefit of the Court of Common Pleas, the practice of arrest for debt was established, year of our Lord 1661: thus had the abomination been reigning a hundred and sixty-five years before so much as this alleviation was applied to it. Yet, such as it is, keen in Judge and Co. was the sense of the injury thus done to the whole partnership. Faces, lengthened by the recollection and report of it, were witnessed by persons yet alive.

Oh precious security! Mark now a set of incidents, any one of which would suffice for rendering it ineffectual:—

1. In case of mutual accounts, a man who is a debtor on the balance, and moreover in a state of insolvency, in such sort as to be incapable of making compensation for the wrong, is free to make use of it in such sort as to inflict vexation, and perhaps ruin, on the creditor thus dealt with.

2. No limit is there to the multitude of knowingly false demands, which, to the wrong of one man, may thus be made by any other, and this without his being at the expense of a perjury; by which, however, if committed, he would not, in more than the trifling degree which, under the head of oaths has been seen, be exposed to hazard.

3. To a man who is about to leave England, having therein no property, or none but what he is taking with him, or none which, by such inadequate means as the law affords, can be come at, this apparent check is, it will be seen, no real one.

4. On so easy a condition as the finding another man, who, being a man of desperate fortunes, will, for hire, perform his part in this so extensively contemned ceremony,—any man may cause his intended victim to be arrested for sums to any amount, and thereby for a sum for which it will not be possible for the victim to find bail.

5. The assertion is admitted, without being, in any case, subjected to cross-examination. Hence the invitation to mendacity and perjury.

6. To those alone whose connexions on the spot, in addition to the opulence of their circumstances, admit of their finding bail, is the privilege of being conveyed to a spunginghouse instead of a jail, extended.

So much for inadequacy: now for incongruity. To the above-mentioned efficient causes of inadequacy, may be added the following features of incongruity, relation had to the existing system:—

1. Swearing to the existence of the debts, the affidavit-man is forced to swear to his knowledge of the state of the law: that same law which, with such successful care, it has been rendered and kept impossible for any man to know.

2. The testimony thus delivered, is testimony delivered by a man in his own favour, in contradiction to a rule and principle of common law. Note that inconsistency, not inaptitude, is the ground of condemnation here.

General result—with the exception of the privileged few, every man exposed to ruin at the pleasure of every other, who is wicked enough, and at the same time rich enough, to accept of the invitation which the judges and their associates in the iniquity, never cease thus to hold out to him.

So much for the evil done by the battle, and the good which so obviously should have occupied the place of that same evil. Now for the battle itself. Origin of the war—power, thence custom, surreptitiously obtained from parliament by the judges of the Common Pleas, a little after the Restoration, at the expense of the judges of the King’s Bench. The power thus obtained was, that of employing, in an action for debt, this same operation of arrest, in giving commencement to the suit. By the known acquisition of this power, was made, to all who would become customers, the virtual offer of the advantage that will be seen. In the case of the honest plaintiff, it consisted in the obtaining his right in a manner more prompt and sure than before: in the case of the dishonest plaintiff, to this same advantage was added, as has been seen, the power of ruining other persons, in a number proportioned to the compound of cupidity, mulevolence, and opulence belonging to him, at pleasure.

This plan succeeded to admiration. Common Pleas overflowed with customers: King’s Bench became a desert. Roger North, brother and biographer of Lord Keeper Guildford, at that time chief-justice of the Common Pleas, depictures, in glowing colours, the value of the conquest thus made. At this time, Hale—the witch-hanging Hale—prime object of Judge and Co.’s idolatry—was chief-justice of the King’s Bench. Chagrined, to the degree that may be imagined, by the falling off of his trade, he put on, of course, his considering cap. What was to be done? After the gravest consideration, he at length invented an instrument (as a manuscript of his, published in Hargrave’s Law Tracts, informs us,)—an instrument, with the help of which he himself, with his own hands, succeeded in stealing that same power which the legislature had given to the court of Common Pleas. Yes: so he himself informs us: so blind to the wickedness of telling lies, and getting money by it—so dead to the sense of shame had been made, by evil communication, this so eminently pious, as well as best-intentioned judge, that ever sat upon a Westminster-Hall bench. Name of the instrument, the ac etiam: description of it not quite so short. To give it, we must go back a little.

At the primeval period so often mentioned, the great all-competent judicatory had received, of course at the hands of the Conqueror, this same power of arrestation, applicable at discretion. At the time when, by the original fissure, the allotment of jurisdiction was given to the Common Pleas—to that judicatory, to enable it to give execution and effect to its decrees, was given the power of operating, to this purpose, on property, in certain of its shapes: the power of operating on person not being given to this court; except that, at the end of a long-protracted course of plunderage, of which presently, came the process of outlawry: outlawry—a rich compost, in which, in a truly admirable manner, barbarity and impotence, to the proper and professed purpose, were combined.

On this same occasion, the cases remaining to the King’s Bench branch of the all-comprehending jurisdiction, after the fissure, were those in which, under the name of punishment, suffering was purposely inflicted: sometimes called penal, sometimes criminal, was the class composed of these cases. By the words treason, felony, and misdemeanor, were originally marked out so many degrees (treason the highest) in the scale of punishment: with like effect, between felony and misdemeanor, was afterwards inserted the word premunire. In process of time, a little below misdemeanor, King’s Bench contrived to slip in the word trespass: and thus armed, as opportunity served, it began its encroachments on the jurisdiction and fees of the helpless Common Pleas.

Misdemeanor meant and means misconduct, or say misbehaviour: trespass meant transgression: transgression, in the original Latin transgressio, is the going beyond a something: the something, on this occasion understood, was of course a law. Not that any such thing was in existence: no matter. On this, as on every other part of the field of common law, it was feigned.

When, for anything or for nothing, it was the pleasure of the king, or of any man whom it pleased him to allow thus to act in his name, that a person should be dealt with in this manner, plaintiff’s attorney went to the shop, and the foreman, on hearing it, sold him an order directed to the sheriff, in the body of which instrument that functionary was informed that defendant had committed a trespass; and from the sheriff, the information would, in course, pass on to the defendant, when the time came for his finding himself in Lob’s pound.

In process of time came a distinction: a distinction between trespass simply, and trespass upon the case. Much the wiser the defendant was not for the information, in either instance, how much soever the poorer: trespass meant nothing except that the man was in the way to be punished, and trespass upon the case meant just as much.

Here, then, were two instruments: now for another such: this was the word force. Whatever was done, by force not warranted by legal authority, was (it was seen) in everybody’s eyes a crime: out of this word was accordingly made this other power-snatching instrument. One vast acquisition thus made with it, and it was a vast one, was the cognizance of suits having for their subject-matter title to landed property. To every man who claimed a portion of land, intimation was given—that, if he would say he had been turned out of it, instead of turned out using the word ejected, relief should be given to him by King’s Bench: relief, by exemption from no small portion of the delay, expense, and vexation, attached to the preliminary, and, as will be seen, so ingeniously wire-drawn, process of the Common Pleas. Ejected means turned out by tossing: and how could anybody be tossed out of anything without force?

Emboldened by success thus brilliant, they went on—these pre-eminently learned and ingenious combatants—to the case of adultery. Here, court Temporal had to fight with court Christian, alias Spiritual. Court Spiritual had seen in this practice a sin, and dealt with it accordingly. With this sin Common Pleas had found no pretence for intermeddling. More fortunate, more bold, and more sharpsighted, was his lordship of the King’s Bench. He saw in it (so he assured and continues to assure the sheriff) a species of rape: a crime of some sort it was necessary he should see in it, and the nearest sort of crime was this of rape. It was committed, he said, vi et armis—by force and arms. This invention was quite the thing: that arms had, in every case, more or less to do in it, was undeniable: and seeing that, on the occasion in question, motion could not but have place, and considering that motion can scarcely be made without a correspondent degree of force, thus was this part of the charge made good: and in return for their custom, injured parties received from the learned shopkeeper, at the charge of the adulterers, money under the name of damages.

Inconsistency was here in all its glory: crime had punishment alone, not damages, for its fruit. This was a principle: yet adultery was thus made into a crime, and at the same time made to yield damages: it was thus a rape and not rape: rape, that it might be made into a crime; yet not rape, because, if it were rape, adulterers would be all of them to be hanged: to which there were some objections.

Of the weapon employed on this occasion, the form was the same, as that of the weapon employed, as above, in the war with the court of Common Pleas; and here follows a further explanation, for which, it must be confessed, that former place was the more proper one: but, in discourse, clouds are not quite so easily dissipated as formed. Speaking to the sheriff after commanding him to take up the defendant on the ground of an accusation of trespass,—trespass not giving intimation of anything, except the eventual design of punishing as for a crime,—his lordship went on to add, as also to a demand on the score of debt, to an individual (naming him.) Here then, by his learned lordship, were two real crimes committed in the same breath, for the purpose of pretending to inflict punishment for, and really reaping profit from, this one imaginary crime: one at the charge of the Common Pleas judges, to whom alone, by Magna Charta as above, belonged the cognizance of cases of debt: the other, at the charge of every member of the community, thus subjected to the power of groundless arrest and imprisonment, as above. On this occasion, in dumb show—dumb indeed, but not the less intelligible—was this his language:—“All ye who believe yourselves to be in the right, and all ye who know yourselves to be in the wrong, but, at the same time, wanting the accommodation for the purpose of ruining some person you have fixed upon, come to my shop: there is my prison, and to it he or she shall go.”

Thus much to wished-for customers. Now to the sheriff: “Take up Thomas Stiles, and put him into your jail: when there, he will be in our power, we will make him pay a sum of money which John Noaks says he owes him.” Such, in the address of the chief-justice to the sheriff, was and is the language of the appropriate document—the only source, from which any conception could be formed, of the calamity into which the proposed defendant was and is thus destined to be plunged. It was a writ, addressed to the sheriff of the county in which the defendant was, or was assumed to be, resident—“Will be in our power?” Be it so: but, suppose him actually in their power:—his being so, did it give them, in relation to their younger brethren of the Common Pleas, any right which they did not possess before?

As to his being already in their power, neither was this the case, nor was it so much as supposed to be. But, should it so happen that the sheriff had taken the man up and brought him to his lordship, whose clerk’s signature is to the writ, then the destined victim would be in his said lordship’s power, and then he would make him comply with the demand, or defend himself against it, or abide the consequences.

As yet here is no lie. But, if the supposed residence of the destined defendant were anywhere but in Middlesex, then came the demand for lies, and with it the supply. Lie the first—averment that defendant’s residence is in Middlesex: and by this was constituted the warrant, such as it was, for writ the first, with its fees.

Lie the second—said defendant is lurking and running about (latittat et discurrit) in this county of NA: the blank being filled up with the name of the county in which it suits the purpose of the plaintiff, or his attorney, to suppose him to be. This is what he was and is told, in the text of another writ, addressed to the sheriff of county the second, for whose information the writ, addressed to his brother of Middlesex, is thus recited, and the difference between the cost of the one writ and that of the two writs, is a tax or penalty, which all persons who omit to live in Middlesex pay for such their default.

Such was the plan of the counter-invasion. Serious and sensibly felt it cannot but have been, to the potentate whose domain was thus invaded.

How to get back the advantage was now the question. Under English practice, deception (need it now be said,) is, on each occasion, the readiest, most efficient, and favourite instrument. A man had forged a hand:—“Don’t trouble yourself about proving the forgery,” said his learned adviser; “forge a release.” A similar instrument was accordingly fabricated by the Common Pleas, and succeeded. Not but the re-conquest had some difficulties to contend with: for (as honest Roger informs us,) king’s tax and chancellor’s fees were affected by it: but these difficulties being the only ones, and these removed, King’s Bench’s mouth was thus closed.

No hypocrisy here. For a cloak of any sort, no demand so much as suspected. Two sharpers playing off their tricks against one another—such is the character in which, even with his approbation, the two lord chief-justices are held up to view, by this confidential brother of one of them. “Outwitting,” one of the words employed: “device,” another. Increase of business the avowed object: of business such as has been seen: proportioned to the success, the exultation produced by it: proportioned to the amount of the booty, the triumph of the irresistible robbers.

Sole interests so much as pretended to be consulted, the interests of Judge and Co. Of this firm, his Majesty was, as above declared, one of the partners: the swinish multitude, with their interest, no more thought of, or professed to be thought of, than so many swine.

The King’s Bench was not the only place at the hands of which the helpless offspring of Magna Charta lay exposed to invasion. Another inroad was that made by the court of Exchequer. In the pretence made in this case, no such downright and all-involving lie was, however, included. In this case, the king was indeed stated as delivering the commandment; and, forasmuch as his Majesty knew not, on any occasion, any more of the matter than the Pope of Rome—in this shape, and thus far, was a lie told. But that which his Majesty was represented as insinuating, though but insinuating, had commonly more or less of truth in it. It was, that the plaintiff was in his Majesty’s debt: a state of things which would, of course, have place, in the instance of any man, who had tax to pay, or service to render.

But this same court of Exchequer, to which no such power had been given, what business had it to meddle or make, while there sat the Common Pleas, to which the power had been and continued to be given? Had there even been no such judicatory as the Common Pleas, the only persons, in whose instance anything done by the Exchequer could contribute to the proposed effect, would have been such as were in a state of insolvency: nor yet all of these: for, till all demands on the account of the king were satisfied, never was so much as a penny allowed to be touched by any other creditor than his said Majesty. Yes, as above observed, insinuating and nothing more. For all that his Majesty is represented as saying is, that the plaintiff says he owes a debt to his said Majesty, not that such is really the case.

So much for this enormity. Out of it grew another, to which the word bail gives name. Finding bail, as the phrase is, is the name of one species of those securities, allusion to which has been made, as above. In this case, after having been arrested by an emissary of the sheriff’s, and consigned to the appropriate gaol, or, on paying for the indulgence, kept in the house of this same emissary, or some person connected with him (name of the house, a lock-up-house or spunging-house,) he is, if certain persons render themselves responsible to the sheriff, or without this security, if the under-sheriff so pleases, liberated. These persons are styled the bails: number of them, one, two, or more, commonly two. As to what they undertake for, it is, in different cases, different: but, for the most part, it is the consigning the defendant to the gaol, or else satisfying the plaintiff’s demand.

As to the remedy which this same security affords—nothing could be more completely of a piece with the so industriously and inhumanly fabricated disease. To the comparatively opulent, an alleviation—to the comparatively indigent, an aggravation. Complete, in an admirable degree of perfection, is the machinery employed in the application of it: to such a degree, that lengthy treatises are occupied in the description of it: enormous the complication—proportionable, of course, the delay, vexation, and expense, produced by it.

As to all this suffering, what do Judge and Co. care about it? Just as much as they care for the rest of the mass of suffering which the system, in its other parts, organizes—what a steam-engine would care for the condition of a human body pressed or pounded by it.

Directed to its proper end, the process of judicial security-finding is an operation, having for its object alleviation to the hardship inseparable from the process of subjecting a patient to the sorts of operations performed upon him by the judge: in each individual case, applying the maximum of the alleviation of which that particular case is susceptible. To all the several modifications of which this hardship is susceptible, to apply one and the same modification of this process—is about as reasonable as it would be to apply, to every species of disease, one and the same medicine.

Of the modifications of which this process is susceptible, we shall presently have occasion to present a view to the Honourable House.

On each occasion, to the circumstances of the individuals in the individual case, does the nature of things render the adaptation of it necessary: and on no one occasion, under the existing system, can it be thus adapted.

In some cases, of which the present case is one, on the defendant; but in other cases, and on the occasion of every suit in the first instance, that is to say, at the outset of the suit, on the plaintiff, does the obligation require to be imposed. In each such instance, to the elicitation of the same individualizing circumstances, the examination of the individual by the judge himself is necessary: and to this process (one exception excepted, of which presently,) not more unquestionable can be the abhorrence of the most profitable malâ fide suitor, than, under the existing practice, that of an English judge.

On each occasion, the subserviency of the operation to the purposes of justice will depend upon the proportion of the hardship of being subjected to the particular obligation in question, and the hardship which, were it not imposed, might have place: probability being, in both cases, taken into account.

As to incarceration and confinement, the more extentious and vexatious the modes of them respectively are, the more urgent is the motive by which the sufferer is impelled to make choice of this bail-finding, or any other, mode of escape from them: escape, perpetual or temporary only, as the case may be: choice, that between the fire and the frying-pan. Whichever it be that is embraced, the exigencies of the lord chief-justice were of course effectually and abundantly provided for: from the bailing process, fees upon fees: from the incarceration, a vast mass at once in the shape of patronage. Forty thousand pounds has been stated as having been refused: on the occasion of the recently alleged mutiny, from £8,000 to £10,000 a-year stated as being the profit of the jailor. To ascertain in each case the quantum of the enjoyment extracted by these two associates from the misery of the many—the quantum, and thence the proportion—is among the operations, the performance of which we beg leave, with all humble submission, to propose to the Honourable House.

Required at the hands of plaintiffs, the security would have kept out dishonest plaintiffs—Judge and Co.’s best friends and customers. Of course it was not to be thought of. Hypocrisy required that the profession should be made: and so, in the language of some of the courts, it was made:—si fecerit te securum: sinister interest required that it should be no better than a pretence.

Performed or exacted of defendants, directly opposite is the effect of this same security: thus placed, the obligation renders the above-mentioned ample service.

As to this matter—the jakes, of late so notorious by the name of the secondary’s office in the City of London—this abomination, with the immense mass of filthy lucre at the bottom of it, and the forty years’ patience of the constituted authorities under the stench of it, speaks volumes.

To the case in which the process of taking examinations was, and is, an object of abhorrence to the judge, an objection has just been alluded to as having place. It is this. To the sight of mere parties, and in particular in the situation of plaintiffs, at the outset of the suit, at which stage the examination might nip it in the bud, abhorrence unassuageable:—to persons coming in, at a stage at which the suit is established, and the examination can have no such injurious effect, open arms and welcome. Why this difference? Answer: At the first stage, the examination would exclude fees: at this subsequent stage, it necessitates fees.

To the performing or hearing the examination of a party in relation to the matter of his suit, the horror of an English judge is, as above, insuperable. To the hearing and conducting the examination of the same man under the name of a bail, in relation to a matter foreign to the matter of the suit,—repugnance none. Cause of difference, the so often assigned universal cause. Examination of the party, the time being that of the outset of the suit, would, as above, nip the fee-harvest in the bud: examination of bail gives increase to it.

After all, it depends upon incidents—incidents too intricate to be here developed—whether it is by the four sages—or now, of late days, one of them—that the opposition and eventual justification—so the examination is called of the bail—shall be performed, or by some attorney, without the benefit of that same scrutinizing process.

The attorney is an under-sheriff;—the under-sheriff of the county in which, as above, the species of egg called the venue, has been laid, or into which it has been removed.

The under-sheriff is, on every occasion, the deputy of the sheriff. The sheriff is a great land-owner who (every year a fresh one,) is appointed by the king a servant who, in the teeth of reason and scripture, is appointed to serve not two only, but twice two masters: that is to say, at the three Westminster-Hall common-law courts, with the addition of the court of general sessions of the peace.

To this same business, as well as to all business but that of parade, the sheriff contributes—what a Roman emperor used to contribute to a victory gained at a thousand miles distance—auspices: the sheriff, auspices: the attorney, mind and legal learning: legal learning, an accomplishment in which, authorized by their sanction, the one, in so inferior a degree learned, thinks it not robbery to be equal to the four sages.

If, with the requisite amendments, necessitated by change of times, the system of local judicatories were restored,—each judge would, for all purposes, be provided with his own ministerial subordinates: and for all of them be would be responsible.

In the city of London, the acting functionary under the sheriffs is styled the secondary. Forty years of depredation, production of so many unheeded mountains, heaped up one upon another, of correspondent misery, have at length attracted to the subject the attention of the local authorities. But, while eyes are shut against causes, eloquence may abound, effects all the while continue undiminished.

Moreover, in the same bailing process there is a gradation: witness the phrases bail below, and bail above. Bail below, are bail whose aptitude is established by the attorney. Bail above, are bail whose aptitude, after or without opposition, is established by the four sages. Bail above are, in some cases, the bail below, thus promoted: in other cases, a fresh couple.

Above and below together, bail generate bail-bond: bail-bond, assignment thereof, with eventual suit: bond, assignment, and suit—fees. To justice, use for bail and assignment the same as for an old almanack.

From these particulars, imperfect as they are, some conception, how inadequate soever, may be formed, of the proportion in which the aggregate property of all the unfortunates so arrested, is transferred from the ordinary and undignified destination of operating in satisfaction of debts, to the dignified function of contributing to the fund provided for the remuneration of legal science.

Note here, that he who makes a prudent use of the offer so liberally held out by the judges to every man—the offer thus made to ruin for him, on joint account, as many men as he wishes, will take care that the debt sworn to shall be greater than the utmost sum, for which, for love or money, bail can, by the destined victim, be procured.

Here ends our exposition, and we humbly hope the sufficient exposure, of the devices, by the too successful practice of which, the attainment of the ends of radically corrupt judicature have been substituted to that of the ends of justice.

Praying thus for justice, and that justice accessible, we proceed to pray for the means necessary to the rendering it so: rendering it so, to all of us without exception. In particular,—of the arrangements which, in our eyes, are calculated to produce that so desirable effect, and for the establishment of which we accordingly pray,—a brief intimation is presented by the propositions following:—

I. First, as to the Judiciary Establishment.

1. That, for suits of all sorts, criminal as well as civil, there be two instances, or say stages, or degrees, of jurisdiction: style and title of the judges, before whom the suit is brought in the first instance, judges immediate—of those before whom it is brought in the second instance, or say in the way of appeal, judges appellate.

2. That, with two exceptions, and these as limited as the nature of the service will permit, to each judicatory, cognizance be taken of all sorts of causes: those included, cognizance of which are at present taken by the aggregate of the several authorities by which judicature is exercised: which courts will have to be abolished, as soon as the causes respectively pending before them, shall have been disposed of. This, to exclude complication, uncertainty, collision, delay, and useless expense.

3. That these exceptions, and these the only ones, may be the following:—Military judicatories, for the maintenance of discipline, land and sea service included: and ecclesiastical judicatories, for the maintenance of ecclesiastical discipline, on the part of ecclesiastical functionaries, belonging to the established church.

4. That, for taking cognizance of suits in the first instance, judicatories may be established in such number and situations, that, by an individual whose house is the most remote from the judicatory which is the nearest to it, the portion of time, during which in the day in question the justice-chamber is open, may be passed by him therein without his sleeping elsewhere than at his own home: and that, accordingly, no individual may have more than twelve miles or thereabouts to travel, in order to reach his own judicatory.

5. That, as in the existing principal court, there be not, in any instance, sitting at the same time, any more than one single judge. This, for individual responsibility—the sole effectual—as well as also for saving expense and delay by mutual consultation and argumentation.

6. That, to obviate delay and failure of justice, every such judge be empowered and obliged to provide substitutes, styled as in Scotland, deputies, one or more, having for their sole remuneration the prospect of being constituted judges principal: and that when there has been time for a competent length of probation, no man, who has not served as depute, shall be capable of being constituted judge principal, in which way the provision of judge power will be as it were elastic, adjusting itself at all times to the quantity of the demand: judges, thenceforward, none but such as have served an apprenticeship to pure justice, and not to the indiscriminate defence of right and wrong, as at present.

7. That, seeing that, if the power of deputation be conferred as above mentioned, hands in number sufficient for every exigency need never be wanting; every judicatory in the kingdom will hold its sittings every day in the year, without exception, unless needless delay and denial of justice are not deemed more consistent with regard for justice on some days than on others: and that no exception be made by the Sabbath, unless and until it shall have been proved that the God of justice is indifferent to justice, and that he who was content that an ox or an ass should be delivered out of a pit, would be displeased at the animals being delivered out of the hands of the wrong-doer; and that the sale of mackerel on that day is a work of more urgent necessity than the gratuitous and uninterrupted administration of justice: lastly, that no exception be made by the night time, unless and until a night shall have been pointed out during which injustice sleeps; in which so may justice likewise; seeing, moreover, that to certain purposes, under the name of police, justice is, in certain places, in that part of the twenty-four hours, even under the existing system, actually administered.

8. That, to each such judicatory, he attached a competent set of ministerial officers, sufficient for giving, in all ordinary cases, execution and effect to its mandates: but with power, as at present, in case of necessity, to call in aid all persons in general, the military force included. This, instead of the sheriff, that one man who hitherto, in despite of scripture and reason, has been employed to serve not merely two, but twice two masters. This, to exclude the complication, with the consequent collision, litigation, useless expense, delay, and vexation, which from this cause have place at present.

9. That, of these ministerial officers, such as are now employed in the intercourse between judges on the one part, and the respective subordinates as well as parties and witnesses on the other part; such as are now empowered to use force, as well as to officiate without force, be distinguished by some such name as prehensors or arrestors; the others distinguished from them by the name of judiciary messengers, or, for shortness, messengers: and that for trustworthiness and economy, the business of message-carrying be, as far as may be, performed by the machinery of the letter post.

10. That the remuneration allotted to judiciary functionaries, ministerial as well as magisterial, be, the whole of it, in the shape of salary; and that, by no functionary belonging to the judiciary establishment, money or any other valuable thing or service, under any such name or in any such quality as that of a fee, be receivable on any occasion, on any pretence. This, to exclude the expense, delay, extortion, and vexation, which have ever hitherto been produced by the multiplication of judicial instruments and operations for the purpose, and with the effect of giving correspondent increase to the masses of fees.

11. That such remuneration be paid, the whole of it, at the expense of the public at large; no part of it at the expense of any individual or body of individuals interested: fines for misconduct as below, excepted. This, to avoid excluding of any person from the benefit of justice: every person who in the suit in question is not able to pay the whole mass of the fees exacted on the occasion of that suit, being at present, as well as having at all times hitherto been, thus excluded: and because that which the rest of the community enjoy without, litigants do not obtain otherwise than by and with litigation, with its vexation and expense,—the benefit of justice.

12. That, to obviate the danger and suspicion of partiality through private connexion, no judge-immediate principal shall remain in the same judicatory for any longer term than three years, or thereabouts: and that, for this purpose, an appropriate system of circuiting be accordingly established: but that, for continuing in an unbroken course the business of recordation, or say registration, the functionary by whom it is performed be stationary.

13. That, in every justice-chamber, for the better administering of that security, which it is in the power of public opinion to afford, for conduct apt in every respect on the part of judges,—commodious situation be allotted for two classes of persons, under some such name as that of judiciary inspectors: the one, composed of suitors, waiting for their suits to come on, say expectant suitors or suitors in waiting: the other, of probationary lawyers, of whom presently.

14. That, in all sorts of suits, without exception, a jury shall be employable: but, to lessen the aggregate weight of the burthen of attendance,—not till after an original hearing, before the judge sitting alone, nor then but by order of the judge, whether spontaneous (for example, for the purpose of confronting such of the evidence as requires to be confronted,) or else at the requisition of a party on one side or the other; in which case it shall be obligatory on him to order and carry on a fresh hearing, termed a recapitulatory hearing, or say a new trial, before a jury, organized in manner following.

15. That in cases of all sorts, one excepted, all functions belonging to the judge, one excepted, shall be exercisable in common with him, by the jurors: the imperative, or say the effectuative, being that on which the effect of the suit depends, being, for the sake of individual responsibility, allotted exclusively to the judge. Functions thus exercisable, these:—1. Auditive, applied to everything that is to be heard; 2. Lective, applied to everything that requires to be read; 3. Inspective, applied to everything that requires to be seen; 4. Interrogative, applied to all questions that require to be put; 5. Commentative, applied to all observations which they think fit to make; 6. Ratiocinative, applied to whatever reasons they think fit to give for anything which they say or do; 7. Opinative, exercised by declaration made of opinion, in accordance or discordance with the opinion which, on the occasion of the exercise given to the effectuative function, is pronounced by the judge: exercised collectively, as by juries under the existing system, the opinative: exercisable individually, all the rest.

16. That the class of cases, in which the effectuative function, as above, shall be exercisable by the jury, so far forth as to render of no effect a judgment of conviction if pronounced by the judge alone, shall be that in which the higher functions of government, as such, have, or may naturally be supposed to have, a special personal interest: for example—treason, rebellion, sedition, defamation to the injury of a public functionary, or set of public functionaries, as such, and the like.

17. That for lessening the burthen of attendance on juries,—instead of a number so superfluous as twelve, a lesser number, and that, for the sake of a majority, an uneven one—that is to say, three, or at the utmost, five—be employed: by which arrangement, the practice of perjury on the part of juries, in a number varying from one to eleven,—perjury, to wit, by falsely reported unanimity, with torture for the production of it, will be made to cease: for the better direction, one out of three, or two out of the five, being of the class of special jurymen: the foreman being to be of this class.

18. That the institution of a grand jury, with its useless delay, incomplete, secret, naturally partial, and inconsistently, though happily limited, applicability,—be abolished.

19. That, for receiving appeals from the decrees and other proceedings and conduct on the part of the above-mentioned judges immediate, there be judicatories appellate, all single seated, in such number as experience shall have shown to be necessary: if more than one, station of all of them the metropolis: that being the central spot, to which persons from all parts of the country have occasion to resort for other purposes; and at the same time that in which the best-formed and most effective public opinion has place—public opinion! most influential and salutary check upon the conduct, and security for the good conduct, of these as well as all other public functionaries: and, as below, no evidence being proposed to be received other than that which has been orally elicited in the court below, and consigned to writing, no attendance by parties or witnesses will, on this occasion, be necessary. And that, after the outset of the here proposed change, no person be capable of serving as judge appellate, who has not for a certain length of time served as judge principal immediate.

20. That, in each judicatory, as well appellate as immediate, for officiating in suits in which government, on behalf of the public at large, is interested—there be a functionary, under the name of the government advocate, with deputation and on the part of the principal, migration, as in the case of the judge: and superordinate to them all, a government advocate general.

21. That, for administering professional assistance to suitors who, by relative weakness, bodily or mental, are disqualified from acting as plaintiffs or defendants, for themselves,—or, by relative indigence, from purchasing assistance from professional hands,—there be in each judicatory a public functionary under the name, for example, of eleemosynary advocate: also with deputes, and migration as above.

22. That, considering how opposite in their nature are the duties and habits of the judge and the advocate,—impartiality the duty of the one, partiality the duty, and proposed misrepresentation the unavoidable practice, of the other,—no functionary be transferable from one to another of these lines of service.

23. That, at the head of the judiciary establishment, there be placed a single functionary, styled, as in other countries, justice minister; at whose recommendation, subject to his Majesty’s pleasure, as at present by the Chancellor, shall be filled up all other judicial situations.

24. That accusations or complaints made against a judge, immediate or appellate, on the score of official delinquency, or relative inaptitude from any other cause, be heard and determined by the justice minister.

25. That accusations or complaints, made for the like cause, against the justice minister, be heard and determined by the House of Lords: and that, on that consideration, no person, during the time of his officiating in the situation of justice minister, shall be capable of sitting in the House of Lords; nor yet in the House of Commons.

26. That, considering the inherent and indefeasible comparative inaptitude of so numerous a body for the purpose of constant and protracted judicature, in all cases, and the next to universal habitual non-exercise of this function on the part of their lordships in criminal cases;—and that in civil cases, their jurisdiction is, in so large a proportion, at present employed, nor could ever fail to be employed, as an engine of delay and expense, operating to all his Majesty’s subjects but a comparatively few as a denial of justice,—it may please their lordships to confine the exercise of their judicial function to the above-mentioned cases, with the addition of such criminal cases, in which, at present, a member of their own House is party defendant:—thus making a generous sacrifice of their uncontested rights on the altar of justice.

27. That, when it has been covered by a coating of legislature-made law, the field of legislation be preserved from being overspread by an overgrowth of judge-made law: for interpretation or melioration, amendments proposed in terminis by judges, on the occasion of the several suits, being, by appropriate machinery attached to the code, of course, unless negatived by a committee of the one House or the other,—and that, when these arrangements have been made, no reference, for any such purpose as that of interpretation, to anything said by a judge in any one suit, be permitted to be made in any other suit. Of this arrangement, another use will be—that of their applying the necessary preventive to the mischief which might otherwise be produced, by discrepancy between the decrees of the several appellate judicatories, if more than one. This, when the field of law has been covered by legislature-made law: and in the mean time (though not equal facility,) equal necessity will there be for the like provision, during the time that, to so immense an extent, the field has no other covering than that which is composed of judge-made law:—of judge-made law—that spurious and fictitious kind of law, if such it must be called, with the dominion of which, so far as it extends, all security is incompatible.*

So much as to the judiciary establishment: follows what we humbly pray in relation to procedure.

28. That, as in former times, no suit shall receive its commencement, but by the personal appearance of some individual in open judicatory, which individual shall be responsible for his conduct in relation thereunto: and, to that purpose, shall, before he is heard for any other purpose, make declaration—not only of his present abode, but of such abode or abodes, at which any mandate issued by the judge may be sure to reach him at all times, down to that of the termination of the suit: that, for the purpose of all ulterior judicial processes, every missive addressed to him be considered as having reached him: except in case of any such accident as, without blame on his part, may come to be alleged by him for the purpose of excuse: saving to such applicant the faculty of changing such address, from time to time, on giving timely information thereof.

29. That, exceptions excepted, the person so applying be a party whose desire it is to be admitted in the character of pursuer: of which exceptions, examples are—1. Giving simple information of an offence, appearance on behalf of any person or persons; 2. Purpose of the appearance, giving simple information, without desire to be admitted pursuer: say pursuer, in all cases, instead of plaintiff in civil cases, and prosecutor in criminal cases, as at present.

30. That, for non-compliance with judicial mandates, an all-comprehensive system of appropriate excuses be looked out for, and on the supposition of the verity of the alleged facts, allowance given to them.

31. The person by whom the matter of excuse is submitted, will in general be the person to whom the mandate is addressed: but, in several cases, such as sickness, absence, &c. from other persons, excuses for him must of necessity be accepted.

32. That the institution of excuse-giving which, under the name of casting essoins, had place in former days, when the attendance of parties, instead of being as now prevented, was compelled—be, for this purpose, reviewed: and the extension which the exigence of justice requires, be given to it.

33. That, on every occasion, the proceedings be regulated by regard paid to convenience, to wit, the mutual convenience of all individuals concerned, parties and witnesses: this being a matter which, they being on all occasions in the presence of and under examination by the judge, can, on each occasion, be ascertained: whereas, under the existing technical system, the rule being framed, without the possibility of knowing anything of the distinguishing circumstances of individual persons and things, the necessary consequence is—that, in a vast majority of instances, the convenience of individuals, some or all, is made the subject-matter of a needless and reckless sacrifice.

34. That, all judicatories being sitting every day in the year without intermission, evidence, in so far as indication of its existence has been afforded by the applicant, when admitted as pursuer, be, in such order as in each suit shall be indicated by the exigency of the individual case, from each source, as soon as obtainable, called for and elicited: and this without distinction, as between co-pursuers, co-plaintiffs, defendants, and extraneous witnesses on both sides.

35. That to the institution of security-finding in general, and that of sponsorship, or say auxiliary bondsmanship, in particular,—be given the whole extent of the application and good effect which the nature of things allows to be given to them.

36. That, accordingly, all the sorts of occasions on which, and all the modes in which: it is capable of being employed, be looked out for:—for the purpose of employing, on each individual occasion, that mode which may be employed with the most advantage to all interests concerned.

Of modes of such security capable of being employed, examples are the following:—

I. Intervention of bondsmen, styled auxiliary bondsmen, one, two, or more, according to the magnitude of the sum regarded as requisite, and their capacity of contributing to make up such sum; each individual contributing such part as his circumstances enable him, and his inclination disposes him, to contribute: as to the party’s joining in the bond, it would, under the here proposed system, be a needless and useless ceremony, the judicatory having his property as effectually at command without it as with it.

II.Deposit of money by the party in the hands of the registrar of the judicatory.

III.Deposit of money by these same bondsmen in the hands of the registrar.

IV.Deposit of any moveable subject-matter or subject-matters of property of considerable value in small compass, in the hands of the registrar.

V.Impignoration, or say pledging, of any immoveable or any incorporeal subject-matter or subject-matters of property belonging to any such auxiliary bondsmen.

VI. With consent of the party, ambulatory confinement of his person, he staying or going where he pleases, so it be in the custody of a person or persons appointed for that purpose.

VII. Under the same condition, stationary confinement in a place other than a prison.

VIII. At the instance of the party himself, imprisonment. Notwithstanding its afflictiveness, it may happen to this security to be necessary; for example, in a case where, security being deemed necessary to be exacted of the other party, and the finding of that security highly afflictive, the party in question is by strangership, relative indigence, or bad character, disabled from finding any security less afflictive.

37. Of occasions, requiring that such security be exacted, examples are the following:—

I. At the charge of a defendant, need of security to a plaintiff, the defendant being on the point of expatriating either his person or his property, or both, and the value of what is demanded at his charge bearing a large proportion to his property: at the same time that, supposing the demand groundless, or the security needless, the wrong done to the defendant, if either his person or his property were detained, might be ruinous to him: as, for instance, the whole of it being on the point of being expatriated on a commercial speculation in a vessel engaged by him for that purpose, and he about to embark for the purpose of superintending the disposal of such his property.

II. On the occasion of the establishment of a mode of intercourse, as above, with the judicatory during the continuance of the suit, want of trust-worthiness may produce the need of the exaction of security, at the charge of the individual in question.

III. Whenever, for any purpose, it may be requisite that security be exacted at the charge of a party on either side of the suit, need may also have place for the exaction of a counter-security, at the charge of the party applying for it.

Note here, that of the infinite variety of occasions, on which the need of security-finding is liable to have place, the practice of bailing is but one, and on each occasion the chances of its being the least inconvenient one are as infinity to one.

38. That, in regard to evidence, whether the source be personal, real, or ready written, no distinction be made between parties and witnesses who are not parties—say extraneous witnesses; that is to say, that from both, it be alike receivable and exigible: seeing that so it is in the existing small-debt courts, in the aggregate of which more suits have place than in all other courts put together; in regard to exaction, penal suits not excepted: seeing that, in the equity courts, such exaction has place, though, by means of it, the richest proprietor may be divested of the whole of his property; and instances are known, in which, rather than submit to such a loss, men have sustained imprisonment for life.

39. That the mode employed in the elicitation of evidence (under which appellative is included every averment made either by an applicant or by a party on either side) be, in each individual suit, according to the demands of that same suit, in respect of general convenience, one or more of the three modes following: to wit—1. The oral, elicited in the originating judicatory; 2. The oral, elicited in another, say a subsequential judicatory, to which, for the convenience of a party resident in the territory thereof, the inquiry is, for the purpose of his examination, transferred; 3. The epistolary, by means of interrogations approved of by the judge of the originating judicatory.

40. That no response in the epistolary mode be received, otherwise than subject to the eventual examination of the respondent in the oral mode, at any time, should demand have place for such examination, in the judgment of the judge.

41. That, instead of being applied, as in equity practice, without necessity, and to the exclusion of the best, that is to say the oral mode, the epistolary mode of eliciting evidence be no otherwise employed than for one or other of two causes: namely—1. Either for exclusion of preponderant evil in the shape of delay, expense, and vexation; 2. Or of necessity, elicitation in the oral mode being impracticable: as, for instance, where at the time in question the residence of the person addressed is in the one or the other of the sister kingdoms, in a distant dependency, or in the dominions of a foreign state: in all which cases the expense and delay of commissioners sent to the places in question will thus be saved.

42. That, for avoidance of perjury, and abolition of the encouragement given to falsehood, by the distinction between statement upon oath, and statement to which, though made without oath, efficiency, equal to that which is given to statement upon oath, is, as above shown, in many cases given,—no oath shall, on any judicial occasion, or for any eventually judicial purpose, be in future administered. But that every statement made on any such occasion, or for any such purpose, shall be termed an affirmation, or asseveration; and that, for falsehood in respect of it, whether accompanied with evil consciousness, or say wilfulness, or with temerity, or say culpable heedlessness, any such punishment purely temporal shall be appointed, as the nature of the case may be deemed to require: consideration in each case had, of the nature of the offence, to the commission of which such falsehood shall have been deemed subservient: and that, as often as, in the course of the suit which gave rise to the falsehood,—all the evidence that can bear upon the question of falsehood has been brought forward, conviction and punishment may have place, even on the spot, without the formality and expense of an additional suit on purpose, just as, at present, in the case of an act, styled an act of contempt, committed in the face of the court.

43. That, for rendering substantial justice, and for avoidance of needless multiplicity of suits, statements, and other evidence, relative to the whole of a series of wrongs, be elicitable on the occasion of one and the same application: such satisfaction, in so far as it is in a pecuniary shape, being adjusted to the state of pecuniary circumstances on both sides: this, where it is on one side only, that complaints have place: and that, where there are two parties, between whom, for a greater or less length of time, a quarrel has had place, each, in the way of recrimination, may elicit evidence of divers wrongs, of different sorts, at different times, from the other, in which case, what, on the aggregate, on the score of compensation, is due from the one, forms a set-off to what is due from the other,—satisfaction be accordingly allotted for the balance: as also, on one of the parties, or both, if, in the judgment of the judge, the case requires it,—a fine be imposed for the benefit of the public, on the score of the portion of the time of the judge and his subordinates, which, at the expense of the public, has thus been occupied.

44. That, with the exception of suits in which, by reason of their comparative unimportance, it is purposely left unpreserved,—all evidence, elicited in the oral mode, shall, under the care of the registrar of the judicatory, be minuted down as it is uttered: and that of this, with the addition of any such evidence as may have been adduced in the ready-written form, or elicited in the epistolary form, be constituted the main body of the document, which, under the name of the record, shall, in case of appeal, be transmitted from an immediate to the appellate judicatory: and that, for this purpose, the mode in which the minutations are made, may be that in which, under the name of the manifold mode, is already in use, and in which legible copies, say rather exemplars, to the number of eight or more, are written at once: whereby all danger of error, as between one such exemplar and another, and all expense of the skilled labour requisite for revision, are saved.

45. That, towards defraying the unavoidable costs, in the case of persons unable to defray them,—a fund be established, under the name, for example, of the Helpless Litigant’s Fund.

46. That all factitious costs being struck off, and unavoidable costs transferred on the revenue,—and professional assistance, in so far as needed, provided gratuitously as above,—fines, or say mulcts, be imposable on any party in proportion as he is in the wrong; which imposition may have place in a degree of amplitude, far beyond any which, under the existing system, would be endurable, if added to the burthen at present indiscriminately imposed under the name of costs on the injurer and the injured: and that of these fines the produce may constitute the basis of the Helpless Litigant’s Fund: in the case of the wrong-doer, the requisite distinction being all along made, between evil consciousness and rashness, or say culpable heedlessness, not accompanied with evil consciousness: and that, for any incidental misconduct manifested in the course of the suit, such fines be moreover imposable, even on a party who, on the main point, is in the right: so also on an extraneous witness: not forgetting, however, that where the case presents to view a party specially injured, no such fine can with propriety be imposed, unless more be needed on the score of punishment, than is due on the score of compensation: forasmuch as the burthen of compensation produces, as far as it goes, the effect of punishment: the effect—and, commonly, even more than the whole of the effect: forasmuch as, by the consideration that from his pain his adversary is receiving pleasure, will naturally be produced a chagrin, which cannot have place in the case when the profit goes into the public purse.

47. That, as well of the judiciary establishment code, as of the judicial procedure code, the language be throughout such as shall be intelligible to all who have need to understand it: no word employed but what is already in familiar use, except in so far as need has place for a word on purpose: and that, to every such unavoidably-employed word, be attached an exposition, composed altogether of words in familiar use: and that, throughout, the signs thus employed be, of themselves, as characteristic as may be of the things signified.

Now for the general character of the two opposite systems: that which is in existence: and that which is herein, as above, humbly proposed as a succedaneum to it.

Behold first the existing system:—

Justice, to Judge and Co. a game; Judge and Co. the players: stake, in different proportions, the means of happiness possessed by the aggregate of all litigants.

Established a universal chain of tyrannies: established, by power to every individual to tyrannize over every other, whose circumstances are to a certain degree less affluent: in every case, instrument of tyranny, utter ruin: utter ruin, by the enormity of the expense.

Alike well-adapted to the purpose of the oppressor, that of the depredator, and that of him who is both in one, is this same instrument. This in hand, a man may oppress, he may plunder, the same person at the same time.

Considered with reference to its real ends, could any more accomplished aptitude—considered with reference to its pretended ends—could any more accomplished inaptitude be obtained by a premium directly offered for the production of it?

So much for the existing system. On the other hand, such, as hath been seen in brief outline, is the system of arrangements dictated by a real and exclusive regard for the happiness of the community, in so far as it depends upon the application made of the power of judicature. We invite the well-intentioned,—we challenge the evil-intentioned,—to elicit and hold up to view, all proofs and exemplifications of its inaptitude. Whatsoever alleged imperfections have been found in it, will of course, in case of adoption, be removed by the constituted authorities. But, considered as a whole, we cannot but flatter ourselves, that, in quality of a subject-matter of adoption after such amendments made, no arguments will be found opposable to it, other than ungrounded assertions, vague generalities, narrow sentimentalities, or customary and already exposed fallacies.

Now for an apology: an apology for the freedom with which the vices of the existing system have been subjected to exposure, and its utter inaptitude for its professed purpose, we trust, demonstrated. In this inaptitude, coupled with the aptitude of the proposed succedaneum, will be found the best, and we humbly hope a sufficient apology for this boldness, how striking soever the contrast it forms with accustomed usage.

Another apology we have to make is, that which is so undeniably requisite for the freedom with which, in addition to the character of the system, that of the class of persons concerned in the administration of it is held up to view. For this liberty, our plea is that of indispensable necessity. For, unhappily, the state of manners considered,—on their part, at any rate on the part of the great majority, it is not in the nature of man that this or any other system should be received by this class, otherwise than with opposition, and that opposition hostile and strenuous in proportion to the serviceableness in the thus exposed system, and the disserviceableness of the here proposed system, to their respective real or supposed particular interests: on which occasion, what again is but too natural is, that, beholding with serenity, and even delight, the torments out of which, and in proportion to which, their comforts are extracted by it, the unction of their panegyrics will continue to be poured forth upon the thus exposed system, in proportion to its need of them, which is as much as to say, in exact proportion to its mischievousness.

Thence it is, that the doing what depended upon us, towards lowering, as far as consistently with justice may be, the estimation in which their authority is held by public opinion,—became, how painful soever, an indispensable part of this our arduous enterprise:—assured as we could not but be, of its finding that so influential authority in its whole force, with all its weight, on every point, pressing down upon it.

Of an imputation which will of course be cast upon the line of argument thus taken by us, we are fully aware. This is—that the weakening the force and efficiency of the whole power of the law is a natural effect—not to say the object—of these our humble endeavours.

To this charge we have two answers:—

One is—that, from this cause, no such consequence will really follow: the other is—that while, by this same cause, the power of the law will not be diminished, the security for its taking its proper direction will be increased,

First, as to the apprehension of the evil consequence. Produced by a superficial glance, natural enough this apprehension must be acknowledged to be: by a closer view, it will, we trust, be dispelled.

That which produces the effect aimed at by the law—what is it? Is it anything other than the expectation, that, on contravention, the inflictions at the disposal of the functionaries in question will accordingly be applied to the contraveners? But of any such infliction, when the decree for it has passed, will the application depend upon public opinion? No, surely: on no such fluctuating basis does public security rest: the persons on whom it depends for its efficiency are, in the first instance, the judges themselves; in the next place, in case of need, the supreme authority, with the whole force of the country in its hands. When a judgment has been pronounced, is it in the power of this or that individual or individuals, in any number whatsoever, to prevent the execution of it? No, assuredly.

Now, as to the desirable good consequence. This consists in the giving strength to the limitative check, applied to the power of the judge, by the power of public opinion—sole source from which, on the several individual occasions, this so necessary and from all other hands unobtainable service can be received. Yes; we repeat it—sole source. True it is, that, in theory, and by the practice of times now past, impeachment is presented in the character of an appropriate remedy: hands by which it is applicable, those of the Honourable House. But, in fact, only in appearance is it so. On no other condition than that of leaving—and that to an indefinite degree—inadequately done, or even altogether undone, its superior and altogether indispensably legislative duty,—could be undertaken by the House, this judicial, and, as such, inferior and comparatively unimportant function. Witness the testimony so amply afforded by experience: witness the Warren Hastings impeachment: witness the Melville impeachment. Take away the check applied by the tribunal of public opinion—here then is the power of the judge, nominally and theoretically controuled, really and practically uncontrouled: and of this same uncontrouled power, what sort of use has been made, and, so long as it continues upon its present footing, cannot but continue to be made, has, we humbly trust, been sufficiently seen already.

Well then: of the power of public opinion in consequence of the information hereby afforded to it, what is the application reasonably to be expected? The universal power of the whole country—will it employ itself against itself? But, the lower the trustworthiness of these same functionaries is in the scale of public opinion, the less efficient, on each occasion, will be capable of being made its resistance to this indispensable check:—the only one, as hath been seen, from which any controul can be experienced by it.

Undangerous in perfection, gentle in perfection, continually improving, self-improving,—what other power can be so completely incapable of being abused as this? Only by the check applied by it can the efficiency of a judge’s sinister leanings be lessened: only by the force of reason can the direction taken by this guardian power be determined.

As to any such fall as that just mentioned,—whatsoever may be the sensation produced by it,—in their predecessors and themselves, these functionaries may behold the original authors whom they have to thank for it. Instead of being what it has ever been, and continues to be, and never can but be,—had the use made of their power been the direct reverse of what it has been,—no such state of the public mind,—no such sensation in the individual mind, could have had place.

While speaking of this same downfal, it is not without unfeigned regret that we can contemplate the hurt, which, by this our humble petition, cannot but in a greater or less degree be done to the interests and feelings of individuals: and this, not only eventually by the establishment of the here proposed system, but actually and immediately by the picture here drawn of the causes by which the demand for it has been produced.

But, well-grounded as these their apologies cannot be denied to be, no reason will they afford why the exertion necessary to the putting an end to the abuses apologized for should in any way be slackened. The surgeon, with whatsoever concern he may behold the sufferings of the patient under the necessary caustic, cannot hold himself exempted by the consideration of them from the obligation of putting it to its use.

Nor yet under these regrets, for this hardship on individuals, is alleviation, independently of that afforded by the contemplation of the all-comprehensive benefit to the public, altogether wanting.

Classes, the interests of which would be affected by the proposed reform, these two:—the professional and the official.

As to the professional class, not to near so great an amount, if to any, as at first view might be supposed, would be the detriment to their pecuniary interests. For, long would it be before their situation could be in any way affected by the change. Suppose the matter already before a committee of your Honourable House: long would it be, before the reforming process would, by a bill brought in in consequence, so much as take its commencement: long, beyond calculation, notwithstanding the utmost possible exertions employed in giving acceleration to it, would be the time occupied in the continuance of that same process: long, even supposing both Houses unanimous in their approbation of the measure considered in a general point of view: and how much further could it fail of being lengthened, by the exertions which it would be so sure of finding everywhere opposed to it—opposed by the best exercised and strongest hands? Such is the length of time during which all such professional men as the bill found already in possession of business would be enjoying the fruits of it, without diminution or disturbance.

So much for that class. All this while, all men who, but for the apprehended fall off, would have engaged in the profession, will have had before their eyes the prospect of it, and the notice and warning given by that prospect. On the other hand, in like manner, will these same eyes have had before them the augmentation (and it has been seen how ample a one) given to the number and value of the aggregate lists of judicial situations. Correspondent will accordingly be the number of those whose destination will, by that prospect, be changed from the indiscriminate defence of right and wrong, in the capacity of professional lawyers, to the pure pursuit of the ends of justice, in the situation of judge. Moreover, proportioned to the amount of this secession would be a further indemnification to those already in the possession of business: so many men whose course has thus been changed, so many competitors removed.

The class upon which, chiefly, the loss would fall, is the attorney class. A certain class of suits there is by which, on the present footing, business with its emolument is afforded to the attorney, none to the advocate class: business, for example, begun, altogether without prospect of successful defence, and thence carried through actually without defence: action, for example, with or without arrest for indisputable and certainly procurable debt. Barristers not deriving any profit from the present existence, would sustain no loss from the cessation of these actions.

But as to the length of the interval before commencement, as also the exclusion put upon competition,—in these advantages the attorney class would possess an equal share.

As to the official class, nothing whatever in a pecuniary shape can any of its members have to apprehend from the change: from all such apprehension they stand effectually secured by the application so constantly made of the indemnification principle, to the interest of men of their order at any rate, whatsoever ground of complaint, on this score, may, in but too many instances, have been felt by functionaries belonging to lower orders.

After all, of all regrets from such a source the complexion would be, what it would be if the sufferings, instead of these, were those of medical men from improvements made in the state of general health and longevity: improvement such as that made by the substitute of vaccination to inoculation: imaginable improvement by discovery made of a never-failing specific, for example, against the ague, the rheumatism, the gout, the stone, the cholera morbus, the yellow fever, the plague, or by the universal drainage of all pestiferous marshes.

Now, as to the effect producible on estimation, and thence on feelings. Altogether unavoidable, and indispensably necessary to the establishment of the everlasting good, upon the all-comprehensive scale on which it is here endeavoured at,—has been the production of the transient evil upon this comparatively minute scale. Before the running sore, kept up at present under and by the existing system, could with any the least chance of success be endeavoured to be healed, it was necessary it should be probed, and the sinister interest in which it has had its cause, brought to light and held up to view.

Now, in the case of the class of persons unavoidably wounded, so far as regards damage to estimation, are alleviations, and those very efficient ones, by any means wanting? In the first place, comes the consideration, that what is important to them, so far from being peculiar to them, is nothing more than what has place incontestably and confessedly in all other classes of men whatsoever. In the minds of the men here in question, indeed, but no otherwise than in those of all other men, with the exception of the heroic few, prevalence of self-regard over all other regards, and this on every occasion, is among the conditions of existence. Place all regard for the interest of A in the breast—not of A but of B, and so reciprocally, the species cannot continue in existence for a fortnight. True it is, that in this or that heroic breast, on this or that occasion, under the stimulus of some extraordinary excitement, social feeling, upon the scale of such an all-embracing scale, may, here and there, be seen to tower above regard for self: but to no man can the not being a hero be matter of very severe reproach. When, therefore, as here, interest from the very first—interest real, or (what comes to the same thing) imagined—has been made to clash with duty, sacrifice of duty is, with exceptions too rare to warrant any influence on practice, sure, and as such ought to be calculated upon, and taken for the ground of arrangement and proceeding, in all political arrangements.

Men are the creatures of circumstances. Placed in the same circumstances, which of us all who thus complain, can take upon himself to say or stand assured—that, in the same circumstances, his conduct would have been other and better than that which, on such irrefragable grounds, he is thus passing condemnation on, and complaining of?

Of the existing race, whatsoever may be the demerits, they have at once, for their cause and their apology, not only the opposition in which, in their instance, interest has been placed with reference to duty, but the example set them in a line of so many centuries in length, by their predecessors; and in ancestor worship, how this our country has at all times vied with China, is no secret to any one.

The concluding observation, how small soever may be the number of the individuals to whom it will be found to have application, is—that, to the imputation of hostility to the universal interest, by perseverance in the preference given to personal interest, it depends upon every man to remain subject, or liberate himself from it, as he feels inclined: and the more powerful the temptation, the more transcendent will be the glory of having surmounted it: and whatsoever may have been the strenuousness and length of his labours in the augmentation of the disease, ample may be the compensation and atonement made, by his contributions to the cure of it.

Such are the considerations, from the aggregate of which our regrets for the manner in which the feelings of the individuals in question cannot but be affected, have experienced the diminution above spoken of. But were those regrets ever so poignant, our endeavours for the removal of the boundless evil of the disorder would not be (for, will anybody say they ought to be?) in the smallest degree diminished, by the consideration of the partial evil thus attendant on the application of the sole possible remedy: assuredly ours will not; nor will, as we hope and believe, the accordant endeavours of the great majority of our fellow-subjects.

On this occasion, a circumstance to which we cannot but intreat the attention of the Honourable House, is the uniform and almost universal silence, in which, by professional men, in bringing to view, or speaking of proposed reforms or meliorations, this universal cause of all the wrongs and sufferings produced in the field of law, has, as if by universal agreement entered into for the purpose, been, as far as depended upon them, kept out of sight. Of the several elements of appropriate aptitude, as applied to this case,—intellectual aptitude and active talent are, on this occasion, assumed to be the only ones, in which any deficiency in the appropriate aptitude of the law itself in any part, has ever had its source: the only ones on which the degree of this same aptitude depends: the only ones, of a deficiency in which there can ever be any danger. As to appropriate moral aptitude,—on every such occasion, exclusively intent on the interest of the public, without so much as a thought about their own interest, in any respect, and in respect of profit in particular,—that all persons in this department sharing in the possession of power, and with them all persons engaged in the exercise of the profession, are, and at all times will be,—this is what is tacitly, but not the less decidedly, assumed: assumed? and with what reason? With exactly the same as if the assumption were applied to all persons engaged in trade. Now then, in this state of things, while on every occasion universally thus referred to the wrong cause, what can be more impossible, than that the disorder should ever receive from the sole true recipe, deduced from the knowledge of its true cause, its only possible remedy? Vain, however, how extensive soever,—vain at any rate, so far as regards us your petitioners,—will henceforward be this so decorous and prudential silence, the nature and magnitude of the mischief, and the nature of its cause, being at length alike known to us.

As to this silence, the decorum attached to it notwithstanding, we humbly trust that in the Honourable House it will not any longer be maintained: for so long as in that sole source of appropriate relief it has continuance, so long will all possibility of effectual remedy be excluded; and so long as the disorder continues unremoved, by no silence anywhere else can our ears be closed, or our tongues or our pens be stopt.

Yes; as to us your petitioners, the film is now off our eyes: thus wide open are they to the disorders of which we complain, and to the urgency of the demand for the remedy, of which, at the hands of the physicians of the body politic, we thus humbly, but not the less earnestly, entreat the application.

To some it may be matter of no small wonder, how such sufferings, as at all times have been experienced, should at all times have had for their accompaniment, such almost universal patience. But, in this case, patience has been the natural fruit of ignorance; the language in which these torments of the people have in this case had their instrument, being about as intelligible to the people at large, as is the gibberish spoken by the race of gypsies.

We beseech the Honourable House to ask itself whether, of the enormities above brought to view, one tenth would not suffice to justify the practical conclusion here drawn from them?—whether, of a system thus in every part repugnant to the ends of justice, and injecting into every breast, with such rarely-resistible force, the poison of immorality in so many shapes, the mischief can be removed otherwise than by the entire abolition of it, coupled with the substitution of a system directed to those ends, and pure from all such corruptive tendency?—whether the inaccessibility of justice be not of the number of those enormities?—and whether the House itself will, henceforward, be anything better than an enemy to the community, if with eyes open, and hands motionless, it suffers that inaccessibility to continue?

For our parts—respectfully, but not the less earnestly, we conclude, as we began, with the continual, and, till accomplishment, neverabout-to-cease cry—“Holy! Holy! Holy! Justice! accessible Justice! Justice, not for the few, but for all! No longer nominal, but at length real. Justice!”

ABRIDGED PETITION FOR JUSTICE.

To the Honourable the House of Commons in Parliament assembled.

1.Justice! justice! accessible justice! justice, not for the few alone, but for all! No longer nominal, but at length real, justice!—In these few words stand expressed the sum and substance of the humble Petition, which we, the undersigned, in behalf of ourselves and all other his Majesty’s long-suffering subjects, now at length have become emboldened to address to the Honourable House. The case we accordingly take the liberty to state, followed by a prayer, humbly suggesting a plan for the removal of the grievance, is this:—

2. That, of the expense, without which, application to judges, for the service which, as such they are appointed to render, cannot be made, nor if made continued, the effect is such—that, in cases called civil altogether, and in cases called penal to a vast extent, justice is not only sold at a dear price to all the few who have wherewithal to purchase it, but utterly denied to all who cannot; and that those who are thus oppressed are thus subjected to wrong, in all shapes, without redress.

3. That the delay is such, that, in many cases, in which, under a proper system, a few minutes would suffice,—and even under the system established does in cases to a narrow extent actually suffice—more than as many years elapse before a man can obtain possession of what, at the end of that interval, are universally seen to have been, and to continue to be, his manifest and indubitable rights.

4. That, while thus unapt for redress of wrong, it is exquisitely well adapted for the commission of wrong: for, such is the mode in which commencement is given to suits, that is to say, without security given for compensation for wrong if done by means of the suit, that, without so much as imagining himself to have any just ground of demand whatsoever—any man, who is able and willing to pay a certain price, may, as we shall show, stand assured of effecting the utter ruin of any one of nine-tenths or ninety-nine hundredths of the whole body of the people.

5. That this state of things has for its cause the undeniable fact,—that, from first to last, the interests of all persons concerned in the administration of justice have been in a state of opposition, as direct as possible, to their acknowledged duty, and the interests of the community.

6. That this oppositeness had for its original cause the penury under which government at that time laboured; it not having, in its then existing state, wherewithal to pay salaries; and being thereby laid under the necessity of allowing the functionaries of justice to exact, for their own use, payment in the shape of fees: payable for processes carried on in the course of the suit: for processes carried on,—that is to say, either for instruments (written instruments) communicated, or thereby or otherwise, operations performed.

7. That, under and by the influence of the sinister interest thus created—has been generated the existing system of judicial procedure: a procedure, having for its ends—instead of the ends of justice—the swelling, to its utmost endurable amount, the evil composed of the expense, delay, and vexation, for the sake of the profit extractible out of the expense, to the use of the several partners in the said sinister interest: to whom, taken in the aggregate, may accordingly, without injurious misrepresentation, and with instructive and beneficial application to practice, the style and title of Judge and Co. be allotted.

8. That though, by a late act, in the case of the judges of the supreme Westminster-hall courts, salaries have been substituted to fees,—yet, this substitution, not being extended to those their subordinates, of whose situations they have the patronage, the comparative sinister interest, in unabated efficiency, still continues: gift being still allowed; and gift being, in all cases, a source of proportionable benefit to the giver: in some cases of even greater pecuniary profit than sale is: as in the case of the gift made of the next presentation to an ecclesiastical benefice, by the patron to his son: and that, even were this same supposed remedy effective against further increase of the grievance—which, however, it is not in its nature to be—still the system of factitious expense, delay, and vexation, offspring of the sinister interest, would remain as it does in all its mischievousness.

9. That the boundless weight of human suffering thus imposed is not, in any part of it, as some suppose, natural and unavoidable, but in the whole artificial: as also in the whole removable; as, in and by the suggestion contained in the prayer of this our humble petition, we will humbly show.

10. That, amongst others of the devices which, in consequence, and by means, of the Norman conquest, have been contrived and employed, for the compassing of this same sinister object, the results are these which follow:—devices, some of them first employed at and during that same period, others at different successive periods, grafted on, or employed in fertilizing, the first devised radical ones.

11.—I.

Device the First—Exclusion of the Parties from the presence of the Judge.

This at the very outset of the cause, down to the last stage: that thereby, parties in general, and the most opulent in particular, may be, as they accordingly are, necessitated to employ in all, even the most simple cases, as substitutes, a class of men whose profit rises in proportion to expense, delay, and vexation; and who, exercising their profession under the dominion of the sinister interest, which they have in common with that of the judges, have the benefit of their support towards the reaping and increase of this same sinister profit: a master device this, serving as a necessary instrument of the employment given to most of the hereinafter ensuing devices.

12. A collateral mischief is—that, by this exclusion, the door is shut against evidence from that which is commonly the most instructive source, and thereby decision necessarily given in favour of the side in the wrong, in every case in which no other than the thus excluded evidence is obtainable. This in some cases: while, in other cases, by a glaring inconsistency, the thus excluded evidence is admitted.

13. In particular, in the judicatories called equity courts, in which the plaintiff is admitted, in and by his bill, to extract evidence, through the medium of the pen, from the bosom of the defendant: in which state of things, the defendant,—unless his professional assistants are deficient in appropriate aptitude—moral intellectual, or active,—slides in, in and by his answer, whatsoever averments present, in his and their joint opinion, a probability of operating in favour of his side.

14. Not but that, for two distinct purposes,—in so far as may be without preponderant evil in the shape of delay, vexation, and expense, is necessary to justice the thus excluded attendance:—1. For bringing to view all facts which are of a nature to operate in favour of any party on either side; 2. To serve as a check upon the sinister interest, whereby their respective professional assistants are prompted, as above, to swell to its maximum that same evil, for the sake of the profit extractible out of the expense.

15. Note also that, so far as it can be effected without preponderant evil as above, not less needful is this attendance on the part of principals, or say intended benefitees, (for example, wives, children and their offspring, wards, and members of associated companies,) for the protection of their interests, against misconduct on the part of their respective trustees: that is to say, husbands, fathers, and other progenitors, guardians, and agents of various denominations; with or without collusion with their several professional assistants in the suit.

16.—II.

Device the Second—Language unintelligibilized.

Instead of the mother-tongue of the parties, the language, originally employed in word-of-mouth discussion, being the language of the conquerors; that is to say, Norman French: and the language, employed in written instruments, the Latin.

17. Thence was created the necessity of employing these so little trustworthy trustees, not only as assistants and advocates, but even as interpreters between the English-speaking parties and the French-speaking judges.

18. Out of these two foreign languages, in conjunction with the mother-tongue, has been made up the jargon, by which, to so great a degree, the same continuance has been given to the same design;—the translation, at length made by order of parliament, notwithstanding: whereby, to so great an extent, false and delusive lights have been substituted to total darkness.

19.—III.

Device the Third—Written Pleadings worse than useless, necessitated.

By this means, justice was denied to all who could not afford the expense of hiring the manufacturers of this sort of ware—sold to all who could and would be at the expense: and, even now, such continues to be the case: and, being paid in proportion to the quantity, thus it is, that, by this sinister interest, they stand engaged to give every practicable increase to it.

20. Now then, as to the supposed necessariness and usefulness of these same instruments. Really necessary are, and in every case, on the plaintiff’s side,—statements,—1. Of the demand made by him; 2. Of the ground of it in point of law; 3. Of the ground of it in point of fact; 4. Of the evidence by which it is supported; 5. Of the persons on whom the demand is made. These are—1. In the first instance, as above—the defendant; 2. On failure of compliance on his part, by performance of service demanded at his hands—the judge; the service demanded at his hands then, the correspondent service, rendered by bringing about that which was demanded at the charge of the defendant, or what is regarded as an equivalent to it. In like manner, in case of non-compliance on the part of the defendant, correspondent statements in justification of such non-compliance.

21. Of all this matter, what is there in these same written pleadings? Answer—Really and distinctly expressed, nothing: nothing but a confused and redundant, yet imperfect hodge-podge, composed of more or less of it.

22. Moreover, for procuring custom, at the hands of individuals who know they are in the wrong,—as well as for giving increase to the quantity of jargon which parties are constrained to buy,—a distinction has been made between pleadings and evidence; and this in such sort, that while, on the one hand, of statements to which the name of evidence is given, punishment, under the name of punishment, is, in case of wilful falsehood, made the consequence,—on the other hand, to those to which the name of pleadings is given, no such consequence is attached: and thus it is, that, to all such left-purposely-unpunished falsehood, allowance, or say licence, is given: at the same time, to these same masses of falsehood, which are not so much as pretended to be entitled to the name of evidence, is given a surer effect than to any the best and most satisfactory evidence: since, when the party on either side has come out with one of these pleadings, the party on the other side, if he fails to encounter it with a correspondent mass, is visited with the loss of his cause: and thereby with a suffering, which may be any number of times as great as that produced by punishment under the name of punishment would be: and thus it is, that the licence so given to mendacity operates as encouragement to, and reward for, the commission of it.

Now then, this same failure, when it takes place—what has it for its efficient cause? His being in the wrong, and at the same time conscious of being so, answer Judge and Co.: if both these fail, his inaction is circumstantial evidence; and to this we give the effect of conclusive evidence.

23. Such is the conclusion: now as to the justness of it. Not to speak of others,—one circumstance which the failure is not less likely to have had for the efficient cause is—want of wherewithal to pay for this same thus necessitated mass of surplusage: and, the greater the quantity of it, the more probable this fulfilment of the dishonest suitor’s wishes: and thus it is, that, by continuance given to the length of the mass, any man may make sure of consigning to utter ruin any other man, whose circumstances are to a certain degree less affluent: and, under the name of justice, the faculty of oppression is sold to the best bidder.

24. Addressed to the supporters of the existing system, follow a few plain questions:—

If, in relation to any point, it were on any occasion your wish to learn the truth of a case of any sort from a child of yours, or from a servant of yours—

1. Would you refuse to see him?

2. Would you send him to, or keep him at, a distance from you?

3. Would you insist on his not answering otherwise than in writing?

4. Would you, on the occasion of such his writing, insist on his coming out with a multitude of lies, some stale and notorious, others new and out of his own head?

5. Would you so much as consent to his mixing up false information, in whatever quantity he chose—and that in an undistinguishable manner—with whatsoever true information it was that you had need of?

6. Would you establish an interval of four or five months’ forced silence, between statement and statement, question and answer, or one answer and another?

7. Would you take any such course, if you were acting as chairman of a House of Commons committee, making inquiry into the state of things in relation to any subject, for the information of the legislature?

8. Would you, if acting in the character of a justice of peace, whether singly, or as chairman, at a meeting of a number of justices of the peace, sitting in special sessions, and making inquiry into the matter of a question of any sort, civil or penal, coming within your competence?

25. Well, then: this, however, is, all of it, the exact description of what has place, as often as the process of delivering written pleadings is carried on; carried on, as it is, under the eye and by order of all the judges: and this, as well in the equity courts as in the common-law courts. This is what, in the common-law courts (to go no higher,) has place from beginning to end; has place until the suit reaches the jury-box:—not to go along with it any further.

26. Now, then, on the part of those by whom this was the course in which judicial inquiry was ordained to be carried on, can you, now that that course is thus laid open to you,—can you for a moment suppose that justice was ever the end in view? Can any man of common sense suppose it? Can any man of common honesty declare himself to suppose it? Can it really be believed by any man, that dispatch is promoted by an inexorably standing still for four or five months?

27. IV.

Device the Fourth—Mendacity licensed, rewarded, compelled, and by Judge himself practised.

Of the manner in which, by and for the benefit and profit of Judge and Co., falsehood has begun and continues to be licensed, rewarded, and on some occasions compelled, it has been necessary to give some intimation under the head of written pleadings; falsehood, wilful or not, as it may happen, on the part of the utterers, wilful at any rate on the part of the judges—the suborners. Follow, under the present head, instances of compulsion more manifest and avowed, as also of the practice of it by themselves.

28. First, as to compulsion. In the proceedings of the courts styled courts of equity, in contradistinction to courts of common law, it is—that features of compulsion are in a more particular degree prominent. After the process which has the effect of a summons—the instrument, with which the suit begins, is a paper called a bill, commencing with a case, or say a story, and continuing with a quantity of interrogative matter, by which answers are called for: answers, to a string of questions, grounded on the several statements, or say averments or allegations, contained in the case. To these averments is given, on this occasion, the name of charges.

29. Now then, of this same case,—what is the composition? Falsehoods, in a more or less considerable proportion, it cannot but have; and in the larger proportion it commonly has. Penalty, on non-insertion of them, refusal to impose on the defendant the obligation of giving answers to the question; in which case, they will not be of any service to the plaintiff’s purpose; they will not be contributory to his obtainment of his right: the evidence sought for by them at the hands of the defendant remains unelicited.

30. Seat and source of the falsehood, this: Into the composition of the case or story, enter commonly two distinguishable parcels of alleged facts, all supposed to be relevant to the matter in question, and necessary, or at any rate conducive to the purpose of constituting an adequate ground for the demand made at the charge of the defendant, by this same instrument of demand: object of it, a service in some shape or other, at the hands, and at the charge, of the defendant; and, eventually, in default of compliance on the part of the defendant, the correspondent service at the hands of the judge; namely, the production of such compliance, or some other service regarded as an equivalent for it.

31. Contents of one parcel of these same facts, such of them as, without any information from the defendant, are (so the plaintiff conceives) known to him (the plaintiff,) as also to some other person or persons, regarded by him as having had perception of them, and being able and about to be willing to declare them: or, at any rate, as being in some way or other in his power to make proof of: this, in whatever degree of particularity is necessary to constitute the requisite ground:—call these the already known facts. As to this parcel, all that is wanted at the hands of the defendant, is admission: seeing that by this, the need of application to any other person for the purpose of information, will of course be superseded.

32. Contents of the other parcel, such supposed facts as, in contradistinction to the foregoing, may be styled unknown or sought-for facts; sought, to wit, at the hands of the defendant: the case being, that, for making proof of them, information, such as it is in his power to afford, and perhaps in his alone, is regarded as requisite: in relation to these facts, all that, in the plaintiff’s mind, in a form more or less particular and determinate, has place, being a conjecture, or say suspicion, of their existence.

33. Now then, as to these same sought-for facts,—for what reason is it that by the plaintiff they are thus sought for? Answer—For this very reason, because they are not known to him. Yet, in relation to the facts thus unknown to him, is he obliged to make declaration that they are known to him: which declaration is constantly the offspring of the inventive genius of his professional advisers and assistants. Without such false declaration from them—writing in the plaintiff’s name,—no information at all will the learned judge suffer to be attempted to be elicited from a defendant. Purport of the rule expressive of the obligation, this:—Every interrogatory must have a charge for the support of it.

34. Plaintiff, for example, creditor of a person deceased; defendant his executor. To some amount or other, property in some shape or other, is left by the deceased: but, to what amount, and in what shape, this is what the plaintiff is altogether ignorant of; for information in relation to it—information in such shape as shall constitute an adequate ground for the demand made of the debt—this is what is thus sought for by plaintiff, at the charge and at the hands of the defendant. Well then: to a question, asking whether property of the deceased to the amount requisite is in existence, and if yes, what it consists of, and so forth, will a judge compel any answer to be made? Not he indeed: otherwise than upon condition. And this condition,—what is it? Answer—That, in the bill, a multitude of declarations, or say averments, assertions, or statements, shall be inserted—statements, giving an account more or less particular, of the several above-mentioned unknown facts: facts, by the supposition unknown to the very individual, who is thus compelled to assert that he knows them; on which occasion, the learned draughtsman finds himself under the not altogether unpleasant or unprofitable obligation, of bringing to the view of his lordship (who will never see it) a statement of every sort of thing, which it is regarded as possible should in the aggregate mass of the property in question have been contained; and, the richer the quantity of this poetry in prose, the richer the reward to the industry of the firm of Judge & Co. in all its branches.

35. Note, by-the-bye, in the case where no information is wanted at the hands of the defendant, the consequence of resorting to him, in this mode, for admission, instead of to a non-party—say an extraneous witness—for information, and thereby for proof. Consequence naturally expected (that is to say, by a man who has never looked into equity procedure) delay and expense saved: for, to the defendant, application (says he) must be made at any rate for payment of the debt. This (continues he) being necessary, when you are about it, add to the demand of the money due, a demand of the information necessary to the proof of its being due:—the information being thus obtained, and from the defendant himself, saved thereby is the delay and expense of the endeavour to obtain it from sources in number and distance altogether indefinite. Such, as to delay and expense, is the economy in appearance. How stands it in reality? Answer—In natural procedure it would have place; but in equity procedure, what the plaintiff gets by it, if the defendant (being rich enough) so pleases, is—in regard to delay, substitution of years to minutes, and in regard to expense, hundreds or thousands of pounds to shillings.

Is this handwriting yours? Yes, or no? For the answer to a question to this effect, spoken by a justice of the peace, less than even a second of time would serve; and by an answer in the affirmative would be decided many a suit which, under equity procedure, while questions and answers are written, occupies years.

36. So much for licence, remuneration, and compulsion of mendacity. Now for the practice of it: practisers, as well as compellers of mendacity—never, for a moment, let it be out of mind,—the judges themselves. Fiction is the appellative, by which the sort of falsehood, thus by judges coined in their own mint, has at all times been distinguished. Nor was the choice thus made of the appellative a blind one. Established they found it in a situation of favour in the public mind,—established by means of the application made of it to the purpose of designating poetry and romance: and thus it was, that, into a portion of the favour, associating with those always agreeable and sometimes useful productions of the imaginative faculty, they thus contrived to let in these constantly not only useless, but enormously mischievous ones. So much for the nature of this species of poetry.

37. Now for some accompaniments belonging to it. In every case, of the utterance given to these falsehoods, evil consciousness,—styled in their language mala fides,—has on their part been an accompaniment: fradulent obtainment, the object: subject-matter of the obtainment, money: to wit, either immediately, that is to say, in the shape of fees, or mediately, through the medium of power, parent of fees: persons thus wronged—in so far as the subject-matter was composed of money—the people, in the capacity of suitors: in so far as it was composed of power, the fellows and competitors of these same judges; as also, in various indirect ways, the people again: one way—the being, in the course of the scramble between judge and judge, consigned to imprisonment; and through imprisonment, frequently to utter ruin, as, under the head of groundless arrests for debt, will be found distinctly visible. So much for the morality of the practice.

38. Now as to the effects of it. Beneficial effects, none: mischievous effects, these:—

I. Mischief the first and most prominent: depredation and oppression, as above: on each individual occasion, at the charge of assignable individuals in the capacity of suitors.

39.—II. Mischief the second: arbitrary power acquired and exercised. Allow a man to assume the existence of a matter of fact,—of an event, or state of things, by which, supposing it really to have had existence, the assumption and exercise of power would have a justificative cause,—allow him this, what is the power which you do not thus allow him to assume? Of this indirect mode of assumption in preference to the direct, what is the consequence—any diminution of the evil? No: but, on the contrary, an addition to it; namely, the evils produced, as will be seen, by the nature of the instrument thus employed.

40.—III. Mischief the third: birth given to a particular instrument of arbitrary power: an instrument to which exposition and exposure have been given elsewhere, under and by the name of the double fountain. Mechanism thus alluded to, a vessel invented by jugglers; contained in it, wine of two sorts and colours; out of it, come the one or the other at the word of command. Whenever any one of these fictions has been established, thus is it with truth and falsehood. On the individual occasion in question, to this or that sinister purpose of the judge, which of the two is it that is most suitable? Is it the falsehood? Out comes, as usual, the established falsehood, and on this it is that the proceedings are grounded. Is it the truth? Back goes he to the original truth; and on this are the proceedings grounded now. Consequence to juggler’s reputation, what? At the hands of the people, anything in the way of censure? Oh no: they look on and stare. Instead of censure, comes in either case praise: on this occasion, as on every other, praise at the hands of Judge and Co. and their dupes,—praise without stint, for everything, be it what it may, which by these same hands is done. Whichever be the ground taken by the decision, praise, appropriate in shape and quantity, stands prepared for the reception of it. Is it the falsehood? Topic of eulogy, strictness of the regard manifested for established rules: for the precept expressed by the words stare decisis. Is it the truth? Topic—liberality and paramount love of truth and substantial justice: who shall blame the holy love of substantial justice? Of the double fountain, one form this: under the head of “Decision on grounds foreign to the merits,” will be visible another.

41. Thus it is, that, on each occasion, according as it happens to him to feel disposed, disposed by whatsoever motives—whether by corrupt profit to himself, by sympathy or antipathy towards individuals or parties—the judge has it in his power to determine the suit in favour of the one side or the other: and this without any the smallest danger, either of punishment at the hands of government, or so much as censure at the hands of public opinion.

42.—IV. Mischief the fourth. In the minds of well intentioned judges, generated by the incongruous mixture, confusion, thence relative intellectual inaptitude—one efficient cause of misdecision, on the part of the judge, delay in the proceedings, with expense and vexation at the charge of suitors.

43.—V. Mischief the fifth. Of that part of the rule of action, which continues in the aerial shape of common, in contradistinction to statute law,—the texture vitiated, and the all-persuading and incurable inaptitude increased; and this as well in the substantive as in the adjective branch of the law: it being through the machinery of the adjective branch, or say the system of procedure, that the cobwebs, of which the substantive branch or main body of the law, in so far as manufactured by judicial hands, is composed: and thus it is, that, in the minds of the manufacturers, the confusion and intellectual inaptitude, and in the work the consequential inaptitude, extends itself over the whole fabric: which by this means is manufactured into an opaque mass, into which the most learned among lawyers have no better than an indistinct insight, and we, the people at large, next to none: at any rate, none such as enables us, of ourselves, to guide our course by it. Witness, in particular, the law of real property.

44.—VI. Mischief the sixth. By the example set by a class of persons who, by all these devices, hereinbefore mentioned, and hereinafter mentioned, have hitherto succeeded in rendering themselves objects of almost universal respect and confidence, and by means of those sentiments, in addition to their uncontroulable power, masters of our conduct, the public mind has been, and continues to be, to a deplorable degree, impregnated with the poison of mendacity in this so highly corruptive shape: and thus it is that demoralization and disintellectualization go hand in hand.

45.—V.

Device the Fifth—Oaths for the Establishment of the Mendacity, necessitated.

As intimated on the occasion of the written pleadings device, mode in which the ceremony of an oath has there been employed as an instrument of mendacity, and, as will be seen, maleficence in so many other shapes, the following:—To assertions, on the occasion of which the ceremony is employed, the distinctive appellation of evidence is applied, and to wilful falsehood contained in such assertion, punishment is attached: while, to falsehood, the assertion of which is not accompanied with the performance of this same ceremony, no punishment is attached. In mendacity has been seen an instrument by which such enormous increase is given to the evil produced to suitors, thence to the good produced to Judge and Co. by written pleadings. In the ceremony of an oath may now be seen an instrument, by the use of which the production of the mendacity is effected.

46.Purposes for which this ceremony is employed, two:—1. Securing veracity at the hands of witnesses; 2. Securing fulfilment of duty at the hands of functionaries, more particularly on the part of jurymen. 1. Mischievous, in both instances, we trust it will, on examination be seen to be; thus efficient to evil purposes; 2. inefficient; and 3. needless to all good purposes, in both cases.

47.—I. First, as to its application to testimony, and on that occasion, as to its mischievousness: 1. Abundantly sufficient to warrant and necessitate abolition would surely be its above-mentioned property of producing mendacity, were it the only one.

48.—2. But to this is added another, of most appalling magnitude. Yes: the giving impunity to crime in every shape, the most obvious not excepted. In the hands of every man,—the most worthless and mischievous not excepted,—does it place the power of producing this effect: thus sharing with the sovereign the prerogative of pardon. Called into the witness-box, conscience (he declares) will not suffer him to bear a part in the ceremony. Not unfrequently have instances of such refusal made their appearance: none, in which punishment, in any shape, has been attached it: the insincerity, howsoever real, not being manifest nor proveable, punishment for the refusal would be persecution; and that persecution, happily, too odious to be endurable.

49. Without the ceremony, for this long time, in civil cases, now of late in criminal cases, admission has been given to the testimony of Quakers and Moravians. “I am a Quaker,” or “I am a Moravian,” (suppose) is in purport the averment made by the person thus called upon:—this said, who shall gainsay it?

50. Suppose even punishment applied, how would the matter be mended? Applied it could not be, till after the impunity had been effected.

51. Moreover, even were the infliction sure, it might be made worth a man’s while to undergo it.

52. So, in any case called a civil case, may he in like manner give or sell success to either side.

53. Murderous robbers might thus go on in impunity for any length of time, in the commission of the crime. In the number regarded as requisite they join in it; a reward, a high amount with pardon, as usual, being offered to any one of them for information, some of them—one or more, proffering testimony against the rest: trial coming on, they declare themselves atheists; whereupon they refuse to bear a part in the ceremony: true it is, that in this case conviction not taking place, pardon is not earned; nor need it, for no testimony being delivered, acquittal follows of course: acquittal on the part of the prisoners, for no evidence is there against them: on the part of the informer, for no evidence is there against him. But (says somebody) by simple and direct refusal to swear, unaccompanied with any such declaration of opinion, will not the same effect be produced? and is it not produced accordingly? Natural enough this question: but to find an answer to it, belongs not to the present purpose.

54. Yes, atheists; of Quakerism or Moravianism, declaration can no longer serve; but atheism remains as good as ever: power of pardon, a share in the king’s prerogative, remains the reward for it.

55.—II. Secondly, as to its inefficiency, still as applied to testimony:—To a mode of punishment, which might, in an almost unexampled degree, be efficacious, it substitutes a mode in an extraordinary degree inefficacious. Of contempt of court, when, in any other shape, committed in court, commitment to prison being an instantaneous consequence, the same consequence might be attached to such contempt in this shape. Under the name of evidence, testimony, when orally delivered, not being received without an immediately previous oath-taking; thus it is that mendacity, whenever it is thus committed, is committed in the shape of perjury; and in this shape this mode of proceeding against it has been—if not employed, at any rate threatened: in which case no individual is there, on whom the expense and vexation attached to the character of prosecutor would be imposed: accordingly, what in relation to this matter we shall have humbly to propose is—that in every case in which it is seen that the whole of the stock of evidence which the suit affords, is brought out at the time of the perjury, punishment for it may instantaneously follow.

56. So much as to efficiency when the ceremony is not employed: how stands it now that the oath is so almost universally employed? Punishment none, without the concurrent testimony of two witnesses: nor then, but at the expense of a separate prosecution, commenced at a distant point of time, and with such disadvantageous prospects as to success. Proportion of the number of cases in which prosecution has place, to the number in which delinquency has place,—at what shall it be set? Say, for example, at a venture—out of ten thousand, scarcely so much as one. So much as to inefficiency.

57. Thirdly, as to needlessness. For a complete and conclusive demonstration of this property of the ceremony, we humbly beg leave to call on the testimony of the Honourable House. Compared with the importance of the legislative, what is that of the judicial function? When, for the formation of a ground for a legislational proceeding, evidence is called in, in what instance is employment ever given to this ceremony by the Honourable House?

58. Thus efficient to bad purposes, inefficient and needless to any good purpose whatsoever in particular,—in particular, to that of giving execution and effect to the law,—far indeed is it from being so, to the sinister interest of Judge and Co.

59. Already mentioned has been its needfulness, with relation to the profit by written pleadings.

60. Add to this, the encouragement and invitation given to dishonest plaintiffs and defendants, by the chance which it produces of failure on the part of honest ones; and thence the addition of dishonest to the aggregate of honest demands and defences; the profit to subordinate judicial functionaries, by the fees, partly in the direct way, partly in various indirect ways, necessitated; and to judges their superordinates, correspondent profit in the shape of patronage,—all by the clumsy and complicated machinery, which, to so large an extent, is, on this occasion, employed.

61. See the country over, for example, attorneys converted into masters extraordinary in chancery, and for no other purpose.

62. Note now the consequence as to delay, and non-decision and misdecision: or in one word, failure of justice. No machinery at hand, no oath capable of being administered; and the testimony, how important soever the purpose, lost, and the purpose frustrated: frustrated—always for a time; not unfrequently for evermore.

63. So much for its effect when employed on a judicial occasion, as well as for a judicial purpose. Now as to its effect when employed on an occasion not judicial (there not being any actual suit in the case:) only for an eventual judicial purpose, to wit, in case of prosecution for perjury in respect of it. Under this head, in proof of its inefficiency, the bare mention of the words custom-house oaths might of itself be amply sufficient.

Other instances, in which the quality of it is demonstrated and the number ascertained might be adduced; but the range of them being less extensive, respect for religion and its teachers commands our silence—one observation alone excepted; namely, that to oaths, whether assertory or promissory, the sanction is the same.

64. So much for testimonial oaths. Now as to official. Various are the occasions on which, correspondently various the purposes for which, under the existing system, the obligation of giving employment to this ceremony has place.

Principal occasion, that of entrance upon office: declaration with relation to opinions—promise with relation to conduct. On neither of these occasions is punishment as for perjury, or punishment in any other shape, attached to what is regarded as a violation of the oath. In all these cases, whatsoever good consequence is looked for, from the solemn promise with the oath attached to it, would (we humbly contend) he equally obtained by a promise declared with like solemnity, unincumbered by the oath.

65. In all these cases, intended or supposed effect of it is—its operating as an instrument of security: real effect, operating as an instrument of deception and consequent insecurity: reliance being placed on this inefficient security, others that would be efficient and applicable, remain unlooked out for and unapplied.

66. Take, for example, the fee-fed judge: whatsoever line of conduct—conformable to justice or adverse—that it happens to be agreeable to him to take,—pronounced with appropriate emphasis, out come the words—“My oath!” His oath—does he say? What oath?—who ever saw him utter any form of words under that name? And if uttered, what would it be found to amount to? Just nothing: some vague generality, vying with cobwebs in effectively binding force.

67. Enter now upon the stage jurymen’s oaths—and with them the everywhere abundant and perennial crop of jurymen’s perjuries. To the exercise of this important function, the indispensable obligation of bearing the supposed effective and so much relied on part in this ceremony, stands attached: at the same time, for the production of declared unanimity,—truly or falsely declared as it may happen, continuance in one and the same apartment without respite or refreshment, except by permission of the judge, though death by inanition, with the antecedent course of torture, be the consequence: torture to such a length, at no time ever endured or endurable.

68. Here then as to the consequence in the shape of perjury. Declaration of opinion it is, opinion itself it is not, in the power of torture to produce. Here, then, as often as diversity of opinion has place, here are two antagonizing forces applied to one and the same man, at one and the same time: here is the oath to make him speak true, here is the torture to make him speak false: the torture—this altogether irresistible instrument, employed in the manufacture of perjury.

69. First, as to the prevention of mendacity. To this, altogether needless, on inspection, will be seen to be this ceremony, with the perjury thus essentially sticking to it: thrown away the price—and it has been seen how dear a one—paid for the use of it. Look, in the first place, to natural religion. If mendacity, independently of this or any other ceremony, does not stand prohibited,—prohibited, which is as much as to say, visited with punishment, what else is there that does? What, then, is the additional security that it affords? No other can it be than that which would be afforded by some extra punishment apprehended in the future life, at the hands of the Almighty, as about to be undergone on the score of the thus supposed aggravation, over and above that which would be apprehended, if the ceremony were not employed.

70. Now then, for this supposed additional security, what is the price paid? An assumption is made and acted upon: and what is it? That, to the purpose in question, the power of the Almighty is at the disposal of any and every man, who for any purpose chooses to employ it: of any man, howsoever bad, for any purpose howsoever bad, the Creator an instrument in the hand of every one of these his creatures!—an instrument, on the part of which compliance is more assured, than it can be on the part of a slave!—the Almighty more surely obsequious to the will of the most wicked man upon earth, than a sheriff is to that of the judge!

71. Look, lastly, to revealed religion. On this score, we humbly beg that, now at length, by the constituted authorities, and in the first instance by the Honourable House, it may be taken into consideration, whether, in addition to these considerations, or even without the aid of them, the words swear not at all, in more passages than one, attributed to the holy Author of our religion, might not suffice to put an end to swearing, in compliance with compulsion, imposed by those same authorities.

72. As to mendacity, the production of this so abundantly thus produced commodity—is this then the object? Neither to this purpose is it at all needful. Legislators, if simple mendacity will content you—mendacity without perjury for a zest to it—abolish the ceremony: there remains the torture, which is quite sufficient to produce the thus desired effect.

73. Note here, the effect of the torture in the production of mendacity belongs not precisely to the present head. It is however too influential on justice, and the efficiency of the main body of the law, to be suffered to pass without notice. It is—the placing the decision, and thereby in so far the lot of the parties—the placing both under the command of the strongest will: in other words, of the most long-suffering and persevering stomach.

74. Of this ceremony, such as it is, is what is called a violation, a sin? So many times as, being employed, it is violated, so many are the sins created, not to say committed: abolish the ceremony, the manufacture of these sins is at an end: and sins, in number altogether infinite, saved from being committed. Such the security supposed to be thus given against mendacity. True it is that times were, when—not merely on a certain occasion for a certain purpose,—not merely in conjunction with other securities for veracity,—but singly, and to the exclusion of all such other securities,—this ceremony, having been instituted, was frequently performed.

75. Witness the so stated wager of law. Occasion, demand of money on the score of debt: purpose, the obtaining a discharge from the demands. Witness, the defendant himself; testimony, assertion in general terms, denying that the money forming the subject-matter of the demand, is due. With this witness came a chorus, consisting of twelve others, styled compurgators; subject-matter of their testimony, their belief that what their principal and leader of the band—the defendant—had been saying, was true. But these times, what were they? Times of primeval and grossest ignorance, superstition, and barbarism.

76. In conclusion, as to the whole of this momentous subject, and our respect for the time of the House not permitting us to do anything like complete justice to the importance of it, we humbly beg leave to give intimation to the Honourable House, that the form of a petition, in which fuller consideration is given to it, is in print, and universally accessible.

77. That, in no case, this part of the institution is productive of good effects, is more than we take upon us to affirm. On it depends, for its existence, the latent, but not the less efficient, virtual veto possessed by the jury, and thus by the strongest stomach among them, over the laws. If, on any point of law to which jury-trial applies, the statute law and common law together is in a state of opposition to the welfare of the community,—in this respect, beneficial, in so far, is the effect of jury trial in its present shape: and on this part of the institution, we beg it may be considered, whether that liberty does not depend—the liberty of the press, to wit—on which everything else, which, in a peculiar manner, is good in the form of government, depends. But to this and the other cases, in which the constituted authorities have a particular interest, more or less adverse to the general interest, such as treason, sedition, and the like, this feature may be preserved, without its extending to any other cases.

78. In any case, to produce whatsoever good effect is expected from the ceremony, the substitution of the word affirmation (or, to give indication of deliberateness,) asseveration, to the words swear, oath, and maketh oath, might, we submit, most fully and effectually suffice.

79. To conclude, neither to the prevention of mendacity, nor (if such should be the pleasure of the king in parliament) to the preservation and augmentation of mendacity (or, as it is more familiarly called, lying) is the preservation of this cumbrous and dissension-sowing ceremony necessary. This we have already taken the liberty to observe and show: and we humbly trust, that to the preservation of that veto, which, as above, so long as the government of this country continues in its present form, is so indispensable,—this same ceremony will not be found to be in any way more necessary.

80.—VI.Device the Sixth—Delay, in groundless and boundless lengths, established.

Delay is, so long as it lasts, denial: and we invite and challenge any person to say why, though it be but for an hour, denial of justice should have place.

81. In the process of judicature,—of the various sources, or say causes of delay—all of them factitious—the work of Judge and Co.—samples (will it please the Honourable House to behold them?) the eight here following:—

I.Source the first, vacations.—The year split into terms—four in the year—with intervals between them, styled vacations: during which last, so far as could be contrived, denial of justice remains established. Terms, four: vacations, as many.

In the whole year of 365 days, aggregate number of days allotted to administration of justice, 91: to denial of justice, 274: add Sundays in term time, 13; total, 287: to justice not so much as a fourth part of the time allotted to injustice.

82.—II.Source the second, circuits.—For country causes, no trial but on circuits; circuits, in the year, at the most no more than three; till the other day, but two: in some counties, now two; till the other day, no more than one. In these cases, what is the crime for which denial of justice—in a word, outlawry (for this it is, so long as it lasts) is thus made the penalty? Is it the crime of living at so great a distance from the metropolis? If not on the account of crime, on what other account is the condition of one part of his majesty’s subjects, of all ranks, rendered, in so essential a respect, to such a degree, inferior to that of all besides?

83.—III.Source the third, fixed days.—Between one proceeding and another, intervals established by fixed days, of which, further on, under the head of Blind Fixation: days the same, length of interval the same, for every individual suit: say, for example, of a fortnight, whereas necessary will be, in some cases, no interval, in others a day, in others again a year or years: none where, upon plaintiff’s own showing, his demand is ungrounded; a day or less (for notice) when the residence of both parties is in the near neighbourhood: years one or more, when, at the moment, defendant’s residence is, for example, at Australia.

In this latter case, if, as in the established mode, inaction on the part of a defendant is by the judge acted upon as if it were conclusive evidence of the justice of the demand, and judgment and execution take place accordingly—here delay gives place to what is still worse: namely, precipitation (of which presently) with misdecision and misconduct for its certain consequences.

84.—IV.Source the fourth, written pleadings.—Of these, above. If, a mass of written allegations being exhibited, loss of cause is, as under the existing system, established as a penalty for the non-exhibition of correspondent counter-allegations,—allowance of time for framing them is necessitated, and, on each individual occasion, time adequate to the need, delay in indefinite quantity, is thus made necessary to justice.

85.—V.Source the fifth, mischievous removals.—Needless transference and bandying of suits, transference of a suit from the judicatory in which it has been commenced, to a different one in which it is to receive termination or continuance, as to which under the head of Device the tenth, mischievous transference, &c.

86.—VI.Source the sixth, equity procedure.—The mode which has place in the judicatories called courts of equity: a mode altogether different from that which has place in the judicatories called the common-law courts; and in the shape of delay, as also of expense in a prodigious degree still more productive of torment.

87.—VII.Source the seventh, court christian, alias spiritual court, alias ecclesiastical court, procedure.—Of this mode, differing again from both the others,—and, in lengthiness of delay and expense vying with that of the equity courts,—mention is made only to show that it has not been overlooked: for though, in delay as well as expense, it view with the most dilatory of the two,—yet, the number of suits carried on in it is to such a degree comparatively small, that the use derivable from the picture of the additional torment produced by it, would not, on the present occasion, pay for the space of time and labour it would necessitate.

88.—VIII.Source the eighth, procedure in appeals; that is to say, demands made to a superordinate judicatory, for reversal or other change, in the judgments, otherwise styled decrees,—ultimate or intermediate, styled interlocutory,—pronounced in the judicatories,—original, or say immediate,—in which the suits respectively took commencement or received continuance.

89. To procedure in equity courts and on appeals, development is to the present purpose necessary, and here follows.

First, as to equity procedure. Endless would be the task of giving anything like a correct and complete sketch of the system of delay, of which the judicatories, styled, as if in mockery, courts of equity, present the scene: a few slight touches are the following:—

90.—I. In regard to elicitation of evidence, modes in one and the same suit, three: namely, the epistolary, or say written mode; and two varieties of the oral, or say word-of-mouth mode.

91. Epistolary mode. Employed at commencement, questions styled interrogatories, put by plaintiffs to defendants: name of the instrument of which they form a part, the bill.

92. Between each such string of interrogatories, and the correspondent string of answers (name of the aggregate, the answer,) an interval of months. In one amply extensive parcel of the whole number of these suits, the end in view, as prescribed by interest, is, on the plaintiff’s side, the maximization—not of dispatch, but of delay: that interest being accompanied with the faculty of multiplying those intervals of delay by an unlimited number. Sufficient of itself is this state of things to spin out into years, a suit, to which, by an interview between the parties, in the presence of the judge, as in the case of procedure before a justice of the peace, termination might be given in the same number of minutes: debt, for example, on a note of hand, whether for forty shillings or forty thousand pounds.

93. To elicit, per contra, for the benefit of the defendant, whose self-disserving evidence has thus been elicited, the like evidence from one who is plaintiff in this same suit, another such suit, commenced by a bill styled a cross bill, is made necessary. Thus, lest the above-mentioned delay should not be sufficient,—what, in a common-law court, would be but one suit, is split into two.

94. Note, that as yet not a particle has been elicited, of that which comes from the only source from which a common-law court will suffer any evidence to be elicited,—namely, the testimonial or other evidence capable of being furnished by extraneous witnesses; extraneous on the present occasion, so called of necessity, to distinguish them from parties, where, as above, information is received from them, or called for at their hands; say accordingly party witnesses, or testifying parties: and, before the elicitation of any such evidence is so much as commenced, money, to the amount of hundreds, or even thousands of pounds, may, at the pleasure of the plaintiff, if rich enough, be extorted from the defendant, if he has it: and thus is his utter ruin produced.

95.—II. Oral mode employed subsequently in the elicitation of the evidence of extraneous witnesses, and sometimes in the elicitation of ulterior evidence from the defendant. Scene, the examiner’s office: mode of examinations, secret.

96.—III. Oral mode employed in addition to the above, in the elicitation of evidence relative to matters of detail. Scene, the office of the subordinate judge, styled a master in chancery. For attendance at this office, not more than an hour at a time ever allowed in the same suit: and by any one of these actors, of all of whom it is made the interest to maximize the delay, the hour may be cut down to a time too short for the doing any part of the business. Nor does any such meeting take place till after three appointments, with an interval of several days between the second and the third. For these actors, if so they may be called, for every one of them, fees, extorted by the power of the superordinate judge, the chancellor, as if they had all attended: the master establishing this mode of obtaining money under false pretences, and sharing largely in the profits of it. Of late years, the salaries of these functionaries have received large increase: and this and all their other modes of depredation left undiminished. Had the enactment made by parliament (it is that of the 22 Geo. II. ch. NA, § 1,* ) been applied to them, as it would have been had they not been in a public trust, not one of the judges by whom, for several generations, these situations have been occupied,—not one of them who would not, over and over again, have been either whipt, pilloried, or transported; for only by power, and consequent impunity and complicity with judges of a still higher order, not by innocence, are they distinguished from those delinquents who, under the name of swindlers, are every day so dealt with.

97.—IV. By these judges, vacations made for themselves: some, of not less than seven months out of the twelve: witness, declarations made by men of the first eminence in the profession: made in print, years ago; and confirmed by the confession implied in uninterrupted silence.

98. All this forms as yet no more than a part of the length of delay established in equity procedure.

In the greater number of the individual suits carried before the superior common-law courts,—after the common-law suit has been made to run its length, still farther length may be added to it; added by any defendant, who, being rich enough, has an interest in so doing; namely, by a suit, styled, as above, an injunction.

99. In the year 1824, April 25, year 5th of the present reign, issued a commission: purpose of it (so therein declared,) introduction of improvements and changes: subject-matter, declaredly confined to equity courts and their proceedings. Five years, within a trifle, have elapsed, and in all this time no improvement made; in consequence, no change made but such as, in comparison with the abuse, was, in extent, conspicuously trifling, and, in quality, has proved to be worse than none.

100. In addition to this, another commission instituted in the year 1828, composed of a different set of commissioners: subject-matter expressly confined to the superior common-law courts and their proceedings, as if, in the practice of two sets of courts, with their branches of jurisdiction, to such a degree entangled throughout the whole field,—it were possible to make any substantial improvements—improvements in either,—without change, and for that purpose, all-comprehensive scrutiny, applied to the other.

101. We humbly entreat the Honourable House to consider whether it be in the nature of man that a separation of this sort, thus deliberately made, by, or by the advice of, persons perfectly conversant with the whole of the business, could have had any better object than the giving perpetuity to a system of depredation and oppression thus portentous.

We shudder at the bare idea of the Honourable House rendering itself an accomplice of such enormities, by remaining silent and inactive, after receipt of this our humble petition, and forbearing to apply either the remedial system, which we shall take the liberty to suggest, or some other not less effectual, if any other such there be.

102. Now for the remaining source of delay—appeals and writs of error. Omitting particular cases, in endless variety, when, on the ground of alleged misdecision, a suit is transferred from a relatively inferior to a relatively superior court,—if it be in equity procedure, appeal is the name—the name given to the operation, or the instrument by which the transference is effected: if it be in common-law procedure, writ of error is the name. Appeal is the term thus put foremost, as presenting, to an unlaw-learned mind, a clear idea; writ of error a confused one.

103. Note, that only for alleged misdecision, that is to say, either at the conclusion, or during the continuance of the suit, are either appeals so called, or writs of error, received. But, not more effectually done is injustice by misdecision than by non-decision: by non-decision, whether after a suit instituted, or for want of a suit instituted.

104. Causes of such want, any one of these which follow:—On the minds of persons wronged—

I. Opinion of the relative inaptitude of the system.

II. Opinion of the relative inaptitude of the judges, one or more, employed in the application of it.

III. Fear of being, at any time after commencement, and before conclusion, sunk into the gulf of ruin by the weight of the purse on the other side.

IV. Or, in other situations, relative indigence, such as to produce an utter incapacity of giving so much as commencement to the suit.

105. In some instances, in the case of a writ of error, the appeal goes immediately from the four-seated court in Westminster Hall to the House of Lords: in other instances, another and more numerously-seated Westminster-Hall judicatory of appeal is interposed, under the name of the Exchequer Chamber.

106. By an appeal, in which and whatsoever way denominated—an additional mountain of delay is set down upon the mountains above sketched out. But of appeal, in both cases, there are stages upon stages, mountains upon mountains, set down, one upon another.

107. For an example of the stages, or say stories, in this pile—behold in Blackstone the following: sorts of cases to which they apply, those called civil:—

I. From various “inferior courts,” to the Common Pleas (iii. 40.)

II. From the Common Pleas to the King’s Bench (iii. 40, 56.)

III. From the King’s Bench to one of the three courts, all confounded under the name of the Exchequer Chamber, composed of so many different lists of judges (iii. 56.)

IV. From the Exchequer Chamber to the House of Lords (iii. 56.)

108. Note well the organization of this chaos.

From the four judges of the Common Pleas, appeal to the four judges of the King’s Bench: from these, back again to those same four judges of the Common Pleas; who are thus expected, every one of them, to pronounce condemnation on his own act, with the addition, however, of the four judges styled Barons of the Exchequer: which same court of the Exchequer is “inferior in rank,” says Blackstone, iii. 43, “not only to the court of King’s Bench, but to the Common Pleas also.” Thus, to apply conviction to an alleged error in one court, the business of two others is put to a stand-still. To complete the confusion, nothing more is wanting, than to give an ulterior appeal from the exchequer chamber immediately, or through the medium of the House of Lords, to a court composed of the judges of some one or more, or all of the judges of the courts herein just mentioned, under the name of the “inferior courts.”

109. Of the gradation here exhibited, was ever any instance exemplified in practice? Probably not. But why not? Answer—Because the rapacity and wickedness of judges—creators and preservers of this system—have to such a degree outrun the wickedness of their pupils, the attorneys, and the opulence of individuals, whom they have thus employed in the endeavour to convert them into dishonest suitors.

110. Now as to appeal and its stages, in the so-called equity courts.

111.—I. When the suit is in the first instance brought before the Chancellor, stage of appeal, but one—appeal to the House of Lords.

112.—II. When the suit is in the first instance before the Vice-chancellor, each party has the option between, an appeal immediately to the House of Lords, or, first to the Chancellor; then from him,—as in the instance of this same appellant, or of the party on the other side,—a further appeal may be made to that same Right Honourable House.

113.—III. So, where the suit is in the first instance brought before the other subordinate equity judge, whose title is the Master of the Rolls: a functionary, who, under this absurd title, has for centuries exercised the functions of a substitute to the Chancellor; in a word, those of a Vice-chancellor, though without the name.

114. In equity procedure, stages of appeal have place, disguised under different denominations.

115.—I. Under the name of exceptions to report, appeal from the judicatory of a Master in chancery, to that of the Chancellor, the Vice-chancellor, or the Master of the Rolls, as the case may be.

116.—II. Under the name of a rehearing, appeal from any one of those functionaries to his successor.

117.—III. Under the name of a rehearing, appeal from any one of them at one time, to himself at another time; for thus are two sorts of proceedings, so different in tendency disguised under the same name.

118. By the Master of the Rolls or the Vice-chancellor a definite decree (suppose) has been pronounced: plaintiff or defendant, losing his cause by it, proposes to himself to take, by means of appeal, another chance. To which, then, of the two judicatories, shall the appeal be made?—the Chancellor’s court, or the House of Lords? For answer—the solicitor of the losing party takes the soundings of the two purses, of his client’s and of the adversary’s: if in his client’s there is depth enough for both courts, he recommends the chancellor’s as the most eligible court; namely, that from thence if, without reproach to himself, he has the good fortune to succeed in making his client lose his case a second time, he may carry it into the House of Lords, in which there being no ulterior judicatory, it will be his interest, for reputation’s sake, and accordingly his endeavour, to gain rather than lose it: from the Chancellor to the House of Lords; that is to say, from the Chancellor under that name, to him, said Chancellor, under another name.

This course, it being that which, in the situation of a solicitor, it is every man’s interest to take, is that which, with a view to legislative arrangements, every man, unless prevented, ought to be expected to take; and as to a solicitor, so should this expectation apply itself to every dishonest plaintiff or defendant, who being in the wrong, and knowing that he is so, has formed a plan for purchasing of the judges in question the faculty of acquiring or retaining the estate in question, by the ruin of the destined victim, thereby availing himself of the offer which, though not in words, is not the less in deeds, held out by the several members of the learned brotherhood to all who are respectable enough to be able to give acceptance to it: yes, respectable enough; for, in the language of the opulent, opulence and respectability are names of the same thing.

119. A word or two as to the particular sources of profit: profit to Judge and Co. from the delays manufactured as above.

I. By the delay are produced, as above, dishonest suits and defences, which otherwise would not have place: the evil hour is thus staved off to the last moment. To a dishonest defendant, the delay produces, for a time, if he be solvent, at any rate common interest of money correspondent to the duration: add, if in trade, profit of trade; if he be insolvent, the faculty of converting the whole to his own use. Of this profit, what part, if any, shall be net, depends upon the proportion as between debt and costs of suit. Of the costs, one constant portion is—that which is laid hold of by Judge and Co., the dishonest man’s partners and accomplices; laid hold of in the first instance, and before so much as a farthing’s worth is paid to any one of those to whom the debt is due.

120.—II. When the debt is such, that the interests amounts to still more than the price paid to Judge and Co. for the delay, the delay follows of course.

121.—III. Delay breeds incidents; incidents, fees. Who shall number the varieties of these prolific incidents?

IV. Bred out of one incident—namely, the incident of death—one inducement to delay is, in cases to a large extent, the extinction put upon the suit, by the death of a party, on one side or the other,—and, on either side or each side, deaths of parties may have place by dozens and scores. Invited by Judge and Co. for joint profit, the injurer, by delays made when in the situation of defendant, helps to consign the injured plaintiff to a lingering death, the result of vexation; Judge and Co. having taken care to exempt from the obligation of making compensation the murderer’s representatives. “A tort is a sort of thing that dies with the person:” such is the expression given to the rule, in the lawyer’s dialect of the flash language.

122.—V. When these factitious delays were first instituted, the minor portions of the year sufficed for as many suits as money could be found in the country to pay for, in fees: the major part being consecrated to ease: in proportion as opulence has increased, ease has been exchanged for fees.

123. In the business of the department of justice, is factitious delay useful, and as such justifiable? If so, apply it to the finance and defensive force departments: apply it to the military departments, land service and sea service: in particular, in time of war: not more indefensible is it in those than in this.

124. Whence this difference? Answer—In these cases, were any such factitious delays established, government would fall to pieces: in these cases, accordingly, they are not established: in the justice department, government, however badly, can go on, the delay notwithstanding: in these accordingly, they are established.

So much for government. Now for surgery. To a patient who wants to be cut for the stone, does the surgeon ever say, wait with the stone in your bladder till I have nothing else to do? No: by the medical man, no such thing is ever said: by the fee-fed judge it is in effect, as often as he makes a plaintiff wait for his money, when wanted for making payment to the surgeon. Whence the difference? Answer—From this:—To produce the delay without losing the customer, is not in the power of the surgeon: it is in the power of the judge: and, so far from losing, he is a gainer by it.

125. On this occasion, as unhappily on so many others, religion is pressed into the service of injustice. To St. Hilary, a Catholic saint—to St. Michael, a Protestant as well as Catholic saint—to Christ Jesus—to wit, by the word Easter, nay, even to the whole incomprehensible Trinity, as St. Athanasius so truly styles it,—does this misery-making employment stand assigned.

26. Out of the Sabbath is made another pretence. “Which of you shall have an ox or an ass fallen into a pit, and will not straightway pull him out on the sabbath-day?” By whom this is said, may it please the Honourable House to consider. If, when it is by mere accident that the damage has been produced, worship of the God of Justice is no sufficient warrant for delay of justice, how much less when it is by injustice?—by groundless distress for rent (suppose) or by robbery? By the worship of the God of Justice, would not an appropriate overture be furnished to the oratorio of judicature?

127. Wives converted into widows, children into orphans; both by slow murder rendered destitute; depredators fattened upon the substance of these victims, Judge and Co. contrivers and sharers in the booty,—such is the scene presented by the fruit of this wisdom—of this branch of ancestor wisdom: the branch to which we are indebted for the plantation of judge-made law.

• “When sleeps injustice, so may justice too:
• Delays, the wicked make; the injured rue.”

These two memoriter verses it is our humble wish to place in the memory of the Honourable House.

128.—VII.

Device the Seventh—Precipitation necessitated.

Excess on one side is thus made the parent of excess on the opposite side. By delay is produced precipitation: and, reciprocally, by precipitation, more delay. Grand and principal instrument of precipitation, jury-trial, as hitherto conducted; but, to its efficiency, vast addition made by circuits.

129. Of the suits out of which a pretence for recurring to this mode of trial is manufactured, classes two: one, composed of those which, by the very nature of the case, are rendered incapable of receiving their termination from a judicatory so composed.

130. Instance, account: a case in which, under the name of one single suit, may be included suits in a number altogether indefinite; suits, as many as the account contains items, each with a separate batch of evidence belonging to it.

131. The other class of these indeterminable suits, is composed of those which are rendered such by accident; that is to say, by the magnitude of the aggregate of the evidence. In the case of Elizabeth Canning, prosecuted for perjury,—time, about the middle of the last century,—seven days passed before the trial was concluded. Since then, instances of still longer duration might, perhaps, be found.

132. In the interval that has place at present between circuit and circuit, what limit can be assigned to the number of suits that might present themselves, if the door, shut against them by this institution, were thrown open?

133. Behold now Judge and Co., syringe in hand, forcing and injecting the whole mass of all the suits into a compass of three days, or in some counties two days. What is the consequence? On condition of their being heard badly,—in regard to some portion of the whole number, possibility of being heard has place, and accordingly heard they are: in regard to the rest, even under that condition, no such possibility has place.

134. On those which remain in hand is stamped the appellation of remanents or remanets. For Judge and Co. the more remanets the better: the more fresh suits for redress of one and the same wrong.

Not that the number of these disastrous effects is—at all times, or even commonly—altogether as great as that of the efficient causes: for commonly, by the postponement, some, in number more or less considerable, are, at this stage of their existence, prematurely killed: cause of death, deperition of evidence, or death of a party: more frequently perhaps than either, on the part of the injured plaintiff, exhaustion of the power of finding the matter of fees. But for this, remanets, in swarms, might go on, begetting one another to the end of time.

135. When one of these indeterminable suits comes to be called on, brought to view then is the discovery—that, from the first, such it was in its very nature. Re-discovered on every circuit is this discovery: re-discovered for centuries past. But, the jury-box is not the less worshipped. Why? Answer—Because, as at present constituted, trial by jury is, in every instance, trial with lawyers.

136. Fresh suits produced by precipitation are—1. In an immediate way, new trials; 2. In an unimmediate way, namely, by means of remanets, arbitrations.

137.—I. First, as to new trials. Greater in this case may to the parties be the expense, greater accordingly to Judge and Co. the profit, than by the original suit. For, preceded always is the new trial by motion for ditto: which said motion is one sort of suit, carried on for the purpose of determining whether another suit shall be carried on or not: shape of the evidence on which the original suit is determined, the best shape: shape, in which the excretitious suit is sometimes determined, the worst shape—namely, affidavit evidence. Barristers necessarily employed as well as attorney: whereas, in the original suit, it may have been carried down to trial, and perhaps most commonly is, without the intervention of argumentation by barristers: commonly, that is to say, where the general issue (as the phrase is) being pleaded, no demand has place for written pleadings of more than a determinate and comparatively short length.

138.—II. Now as to arbitrations. Of the disadvantages this sort of suit labours under, with correspondent advantage to Judge and Co., samples are these:—

1. Power for the attainment of evidence comparatively inadequate: not comprehending the power of obtaining it from all places: not ascertained whether in it is universally comprised any power for rendering attendance on the part of witnesses effectually obligatory.

139.—2. If not, then, on many occasions, the body of the evidence will be not merely incomplete, but, in the sinister sense of the word, partial: admitted, and perhaps exclusively, witnesses, with a bias on their testimony—“willing witnesses,” as the phrase is: and these, biassed all of them in favour of the same side: of which state of mind the very fact of the willingness affords some, although not conclusive, evidence.

140.—III.Evidence of parties. Admitted it cannot be, without giving up, as completely adverse to justice, the general exclusionary rule; excluded, not without substituting misdecision, or denial of justice, to right decision, in a large proportion of the whole aggregate number of the suits, demand for which has place. Yes, denial of justice: for, in so far as it is foreknown that by the exclusion put upon evidence necessary to success, all chance of success is excluded,—in so far the suit will not be instituted.

141.—IV. Professional persons, if chosen as arbitrators, must be paid: here—be the payment ever so moderate and well-regulated—here will be a vast addition to the expense: the remuneration being over and above that which, at the expense of the whole community, is given to the permanent judges—judges so styled and intituled.

142.—V. But, in cases thus disposed of, the mode of payment is in a flagrant degree corruptive and adverse to the professed end: it is payment by the day; a mode, by which a premium is given for the maximum of delay and extortion: corruption, delay, and extortion, which it is not in the power of human sagacity to prevent, punish, or so much as discover and hold up to view: corruption, which it is not in the power of flesh and blood to remove.

143.—VI. These professional judges, who are they? Naturally such, of the choice of whom, self-regarding or sympathetic interest is more likely than regard for the interest of justice—more likely than appropriate aptitude—to have been the cause. In the train of the judge come always, along with the briefholding, briefless barristers. Of the choice made, cause not unfrequent, and certainly none so natural, as recommendation at the hands of the judge. Proportioned to the value of every situation is that of the patronage by which it is conferred: and, recommendation taken, patronage is exercised.

144.—VII. Question, which of the suits shall be tried?—which, by being left untried, converted into remanents? This will depend upon the result of the conflict of interests. Yes: but of whom?—the suitors? No: but of learned lords and ditto gentlemen. By sinister interest, full is the swing enjoyed in this case: into it, is it possible for the eye of public opinion in any degree to penetrate?

145. In respect of favour: manifest it is here, upon how different a footing stand the forced arbitrations brought on in this circuitous mode, compared with those spontaneous ones which originate with the parties. So many spontaneous arbitrations, so many usurpations upon the authority of learned judges. Moreover, most commonly the arbitrators will be unpaid, or at any rate, unlaw-learned, individuals: whereas, on the circuit, a suit will not only have already brought grist to the learned mill, but have moreover brought with it a superior chance for finding learned arbitrators.

146.—VIII.Device the Eighth—Blind Fixation of Times for Judicial operations.

I. Only in relation to the exigencies of the case, and the interests of the sincere among suitors, not in relation to Judge and Co.’s profits, will, in this case, the blindness be seen manifested.

147.—II. Blindness to the exigencies of the case? Yes, to all exigencies: to all differences between time and time, to all differences between place and place.

148.—III. Between dishonesty and insanity, on the part of the creators and preservers of this arrangement—that is here the question—What?—for holding intercourse with the judicatory—for paying obedience to its mandate—appoint, in all cases, the same day for every individual subject to its authority?—on whatever spot, wherever at the time he happens to be, whether within a stone’s throw of the justice-chamber, or at the Land’s-end, and whether in England, or in Australia, in Peru, or in Nova Zembla? Except for the purpose of deception, is it in the nature of man that any such arrangement shall have presented itself to a sane mind? No: not of honest blindness is this the result; but of sinister discernment on the part of the contrivers, taking advantage of that blindness which, on the part of the people, has, with such deplorably successful industry, been organized.

So much for the policy of dishonesty.

149. Behold now the policy of common honesty and common sense: yes, and everywhere, but in the land of chicane, common practice.

I. No suit being (suppose) ever commenced, but by application made to you (the judge) in your justice-chamber, by a proposed plaintiff,—or, in case of necessity, a substitute of his,—settle with him, before you let him depart, the means of intercourse with him during the continuance of the suit; the further obligation being at the same time laid on him, of continuing the line, or say chain or series of those means, by timely information of every such change as shall eventually have place: reference being moreover at all times made to such other individuals, whose assistance to these purposes may eventually become necessary.

150.—II. Learn from him, as far as may be, the like means of intercourse, in the first instance, with all other individuals, whom his examination presents to view in the character of defendants, extraneous witnesses, or co-plaintiffs, or say co-pursuers.

151.—III. At the first attendance of each such other individual, make with him the like settlement.

152.—IV. Should any subsequent attendance on the part of the same or any other individual be, for the purpose of the suit, necessary—accident and other exceptions excepted—let the time fixed for it be as early as, without preponderant evil in the shape of expense and vexation, it can be.

153.—V. Accidents: for example, death, sickness, impassableness of ways, calamities, casualties, confinement, or transference by force, by fraud, or the like.

154.—VI. Correspondent arrangement as to inspection: inspection of things moveable, requisite to be inspected by you, in the character of sources of real evidence.

155.—VII. So as to things immoveable.

156.—VIII. So as to persons, by sickness or infirmity, rendered immoveable.

157.— So, as to instruments in writing: whether already written; or, for the purpose in hand, requiring to be written, allowance made in this last case for the quantity of time likely to be made requisite by the quantity, or the quality of the matter.

158.—IX. As to the requisition thus to be made of the maximum of dispatch, note the exceptions following:—

I. When, of two individuals, attendance at the same time is requisite, the residence of both or either,—from each other and from the judgment-seat,—is at the time, at a certain degree of remoteness: in this case, for the attendance of him whose residence at the time is nearest, postponement; that is to say, to the earliest time, at which attendance can be paid by him whose residence is most remote,—is necessitated by the exigency of the case.

159.—II. So, in regard to any greater number of individuals, on whose part conjunct attendance is necessary.

160.—III. So, when the exigency of the case requires the attendance of one individual to be postponed till after attendance paid by this or that other.

161. With each individual, with whom, for the purposes of the suit, intercourse is holden,—places for intercourse, and in that respect modes of intercourse, two:—1. The justice-chamber; 2. Other places at large: in the justice-chamber, by attendance of the individuals there: other places, in extraordinary cases by visitation, transition, or say migration, thither on the part of the judge. Thus as to intercourse in the oral mode. For intercourse in the epistolary mode, in ordinary cases it will be carried on by transference made of the written instrument or other source of evidence, from place to place; transference of letters, by the post, for example: from and to the justice-chamber, will be this transference, in most cases.

162. In this way will conjunct provision be made for the exigencies of each individual suit, and for the convenience of each individual concerned;—delay, expense, vexation—all minimized. So much for the policy of honesty.

163. Return we now to the policy of dishonesty, as it presents itself to a closer view. On the part of each such individual, requisite will be the performance of some operation, and, included under the head of operations, is that which is performed by the exhibition of some written instrument or other moveable source of evidence, as above.

164. Behold now the course, which, in regard to each such operation, and each such instrument, the dishonest plan prescribes.

For each such operation, on the part of every individual concerned,—fix one and the same day. Then, to the minimization of the evils in question—the evils, to wit, of delay, vexation, and expense, you will substitute maximization: for, in each individual instance, the chances, against the so fixed day’s being a proper day, are as infinity to one.

165.—I. In regard to operations, it will be your care to maximize the number of those by which birth is given to written instruments: for in this case, superadded to the profit—profit in the operation—is the profit upon the instrument. On this occasion, reciprocal generation has place: operation produces instrument; instrument, operations.

166.—II. So, the length of each such instrument.

167.—III. So, the number of the instances in which, for the performance of the several operations, days are appointed on which the performance of those same operations respectively is impossible: for by the impossibility the need of ulterior operations and ulterior instruments will be established.

168.—IV. So, and thence, the number of instances in which need of application for further time, and application accordingly, shall have place; in particular, the number of those in which the allowance of such time shall be a subject-matter of contestation.

169.—V. So, accordingly, of the instances in which the notices, without which compliance cannot have place, shall not have been received.

170.—VI. So, accordingly, of those in which, the notice shall not have been given.

171.—VII. So, likewise of those in which whether the notice has or has not been received and given respectively,—shall be the subject-matter of contestation.

172.—VIII. So likewise the expense of special messengers, employed by professional assistants (in this instance chiefly of the attorney class) in making communication of such notices,—the expense, to wit, for the sake of the profit extractable out of the expense.

173.—IX. So, accordingly, the number of such journeys, and the length of and difficulties attendant upon each.

174.—X. So likewise, in regard to the journeys employed in the making seizure, definitive or provisional and instrumental, whether of persons or things, for the purposes of justice: that is to say, whether for execution and effect to be given to a decree of the judge, or for evidence to be elicited for the purpose of constituting a ground for it.

175. Admirable, under the existing system, is the equipment made for this species of chase:—party-hunting, to wit, and witness-hunting:—a chase in which the fox, instead of being the huntee, is the hunter, and his object is to catch—not as early, but as late, as possible, and through as many turnings and windings as possible.

176. Behold here an example. For the purpose of obtaining, at the hands of the defendant, the service he stands engaged for—say the money he stands engaged to pay—engaged, to wit, by a bond, to which his signature stands attached, adequate ground for regarding it as being his signature, is necessary. This defendant the judge sees standing or sitting in court. Shall this same judge say to same defendant, “Is this your handwriting?” Not he, indeed: no, nor any person by word of mouth. Never since the Conquest was any torment thus barbarous inflicted. By word of mouth, nobody. The hardship of saying Yes, or No would be unendurable. In writing? Yes, so it be by the plaintiff and by a bill in equity, length from half a dozen pages to any number of sheets of ordinarily-sized letterpress: as to time, at the end of years five or more as it may happen. Yes, or by word of mouth, so it be by learned counsel to a witness who has been hired to come, say from Australia for this purpose, if there be no person, whose residence is less remote, and by whom the information can be afforded. Both those resources failing, the defendant, by the hands of Judge and Co., pockets the money: the right owner loses it.

Think of a judge, with this spectacle before his eyes, turning them aside from it—lifting them up to heaven, and proclaiming, in solemn accents, his love of justice!

177. By the arrangements hereinafter submitted, put down altogether would be this pastime.

178. As to fees, inexhaustible is the source of them, thus created by chicaneries about notice.

179. Under the existing system, to this relatively so desirable state of things, with what consummate skill and success, and not less consummate effrontery, the blank fixation device has been adopted, may now be, with sufficient distinctness, visible.

180. To all these sinister purposes, it has been seen how indispensably necessary was the primordial, radical, and all-producing device—exclusion of parties, severally and collectively, from the presence of the judge.

181. So will it presently be seen, to all these same purposes, how exquisitely well adapted is the system of mechanical, substituted as far as possible to mental, judicature.

182. Nor yet, for reconciling the public mind to this host of enormities, and of sufferings produced by them,—are pleas altogether wanting: pleas with which pleasing or imposing ideas stand associated: words, such as they are, have been found in uniformity, regularity, and strictness: pleas furnished by the ascendency so extensively prevalent of imagination over reason.

183. Uniformity? What uniformity? Answer—That produced by the fabled arrangement in which, between the bed and the men reposing on it, uniformity in length was produced by cutting off the redundant part of each body which was longer, and stretching out to the requisite length, each body which was shorter, than the bed. Here is uniformity; and, this being done according to rule, here is moreover regularity; and, for the display of the heroic strength of mind, requisite and produced by this branch of the gymnastic exercise, added not unfrequently is the word strictness: strictness in the observation of justice-killing and misery-begetting rules.

184.—IX.

Device the Ninth—Mechanical, substituted to Mental, Judicature.

In so far as, in the production of any effect, machinery is employed instead of human labour, machinery is employed instead of mind: for example, in the shape of a man, an automaton figure, such as has been seen, forming writings with its hands.

185. Origin of this device, a problem: a problem from the beginning, proposed to one another by Judge and Co. Purport of all this—how to administer justice without a thought about the matter: reward for solution,—trouble, time, labour, responsibility,—all minimized: meaning always by time, Judge and Co.’s time: ditto, profit of course, on this, as on all other occasions, maximized. Nowhere in Euclid is to be found any problem more skilfully and effectually solved than by Judge and Co. this.

186. For proof as well as elucidation, one example will supersede all need of recourse to others. This is—the operation styled signing judgments. Machinery and mode of operation, this.

187. Machine, a pair of scales, invented by the demon of chicane, in derision of the scales of justice. Kept in one scale, papers styled judgments; kept vacant the other, for the reception of fees. Drop into it the appropriate fee, up rises the appropriate judgment. This the attorney (the plaintiff’s attorney) takes in hand, and off it goes to the sheriff for execution. Such is the way in which money, to the amount of hundreds of pounds, thousands, or tens of thousands, is made to pass from defendant’s pocket into plaintiff’s. His lordship, under whose auspices this legerdemain is performed, what knows he of all this? Exactly as much as his learned brother in Calcutta.

188. To such perfection is the invention brought—so complete the mechanism produced—not so much as even in pretence is it by the judge that the effective operation is performed. “I have signed judgment,” quoth plaintiff’s attorney. Nor yet is so much as this true. What is true is—that it is by a journeyman of the chief-justice’s that the signature is performed: all that the attorney has done is the paying him for so doing. And the journeyman—what knows he about the matter? Answer—That an instrument, which, on the blind fixation principle, as above, should by defendant’s attorney have been put in by a certain day, had not been put in by that same day.

189. Now for a reason for such judicature: where shall it be found? Without so much as a particle of blame on the defendant’s part, or even on his attorney’s part, in how many cases may it not happen that the failure took place?

190. In a system having for its end the ends of justice—in a word, in the here proposed system, cases forming so many grounds of excuses, would, as in the infancy of English jurisprudence, received under the name of essoigns, be looked out for, and a list formed of them. But, suppose even blame, and to any amount, might not compensation, if to the same amount, suffice?—compensation instead of the ruin, of which execution given to the judgment may be productive?

191. “Persons . . . . obtaining money . . . . by false pretences . . . . may be punished by fine and imprisonment, or by pillory, whipping, or transportation.” These words stand part of the marginal abridgment of the first section of the statute 30 Geo. II. ch. 24, § 1, in the statutes at large; which statute is, in Ruffhead’s edition of the statutes, referred to under the head of cheat, swindler, as the name by which, in common parlance, persons so offending are designated. Seeing this, we humbly entreat the Honourable House that it may be considered whether, by the high-seated functionaries by whom fees are obtained by warrants for attendance paid before them, although such attendances were never paid nor intended so to be, money has not at all times been obtained by false pretences; as also to consider whether if there be, either in a legal or a moral sense, guilt in the obtaining money by such means, the guilt is lessened by the power by means of which such obtainment is effected: whether, if functionaries so seated in those and other judicial situations, were not, to every practical purpose, in this respect, above the law, obtainment by such means would not be an act of extortion, and, as such, a crime; and whether, by the addition of extortion, and, on the part of a suitor, the impossibility of avoiding to comply with the demand so made, the moral guilt attached to the idea of chicanery, or say swindling, is in any degree lessened. We acknowledge that it is in the power of the Honourable House, with the assent of the House of Lords and his Majesty in Parliament, not only by connivance, but by express enactment, to give impunity and encouragement to the above, and any or all other persons, who, being constituted in authority, obtain money by false pretences; and this, while persons not constituted in authority are, for obtaining money on false pretences, punished in manner above mentioned: and moreover, that it is fully in the power of that authority of which the Honourable House is a branch, to give impunity and encouragement to every enormity, to whatever extent maleficent, and by so doing to cause the act not to come with propriety under the name of a crime, nor the actors to be, with propriety, denominated criminals; and accordingly, to cause to be punished, as for a libel, all persons speaking of these under that name: which, accordingly, we forbear to do otherwise than hypothetically, as above: but we humbly entreat the Honourable House to consider whether it would not be more for their honour and dignity to endeavour to repress maleficence in this, as well as in every other shape, than in this, or any other shape, give impunity and encouragement to it.

192. If, instead of this mechanical, mental were the mode of judicature, how would the matter have been managed? Answer—Of each individual case, of each individual person concerned, the circumstances would be looked to; of each individual person the feelings taken for objects of sympathy and consideration; respite upon occasion granted; pecuniary circumstances, on one side as well as the other, taken into the account: claims of other creditors not neglected, though not parties to the suit, nor privy to the application by which it was commenced.

193.—X.

Device the Tenth—Mischievous Transference and Bandying of Suits.

Instead of transference and bandying, the one appellative, removal, might better have been employed: removal—that is to say, of a suit from one judicatory to another.

194. Removal may be, and is, either—1. Established; or, 2. Incidental: established, when by usage it takes place in every individual suit of the sort in question: incidental, when it does not take place but in consequence of some extraordinary operation performed by some person for that purpose; some person usually, if not exclusively, a party on one side or the other of the suit.

195. Under the existing system, when it has place incidentally, a certiorari is the name of the written instrument by the issuing of which the removal is produced: of this further on.

196. Subject-matter of the established removals, two: namely—I. Incorporeal the operation, performed on the occasion of the suit; corporeal the written instruments, brought into existence, or into the custody of the judicatory, in consequence of the commencement given to the suit: including every such account, or say history, as happens to be given of these same operations: as also any such other things moveable, if any, as happen to have been presented, or intended to be presented, to the view of the judges, in the character of sources of evidence—that is to say, real evidence.

197.—II. In case of removal, whether established or incidental, the suit is by some other judicatory received: call this the recipient or subsequential: and for distinction, call the first-mentioned judicatory the originating, original, or primordial.

198.—III. If, after removal, the suit does not return to the primordial judicatory, call the removal transference, or simple transference; if it does return, oscillation or bandying: in case of bandying, the transference is followed by retrotransference.

199.—IV. Emblems—of oscillation, a pendulum: of bandying, battledore and shuttlecock.

200.—V. Where oscillation has place, returns are in any number secured by what has been called pre-established harmony: at battledore and shuttlecock, to every return a fresh application of mental power is indispensable.

201.—VI. As to precipient judicatories, they have place of course in a number correspondent to that of the oscillations of the pendulum, or the strokes of the battledore.

202.—VII. From the operation here termed removal, distinguish that designated by the word appeal. Under every system, appeal is for cause assigned, namely, on the part of the judge of the originating judicatory, either misdecision, or non-decision productive of the same effect as misdecision: misdecision, either ultimate or interlocutory, or say interventional: in any case, misconduct. In the case of what is here meant by removal, no allegation or supposition of any such misconduct has place.

203.—VIII. Under the here proposed system, incidentally, both simple transference and removal have place. But in every case it is for cause specially assigned: thence in the way of bandying; not in the way of oscillation.

204. Under the existing system, in no case will the removal be seen to have any good cause assigned or assignable. Good cause, none: but as to effects, bad effects in abundance; bad in relation to the interest of the community and the ends of justice: thence, herein, as above, termed mischievous: good, at the same time, in correspondent abundance, relation had to Judge and Co., and their particular and sinister interest: and thence in relation to the actual ends of judicature.

205. To return to the here proposed system, and to the good effects which under it are deducible from the removal in question, and would accordingly be deduced from it. Execution, evidence, intercourse;—to one or more of these objects will be found referable everything that can be said of the operations or instruments which have place in judicial procedure.

206.—I.Execution, to wit, of the enactments of the substantive branch, or say the main body of the law: under which head is comprised everything that does not belong to the adjective branch, or say procedure: enactments, really existing in the case of legislation-made, imaginary in the case of judgemade law.

207.—II.Evidence, for the purpose of forming a ground for what is done in the way of execution.

208.—III.Intercourse, to wit, between the judge and all other persons concerned, for obtaining evidence and effecting execution: including the securing the means of such intercourse from the commencement to the termination of the suit.

209.—IV. Giving, to all these several objects, accomplishment, with the minimum of delay, expense, and vexation, to the individuals concerned.

210.—I. First, as to execution. For this purpose, need of removals—of removals in a number altogether unlimited—may have place. In proof of this, a single example may suffice. Judge-shires (as herein proposed) say two hundred. For whichsoever purpose—say satisfaction to a party wronged, or punishment—seizure and sale of defendant’s effects requisite: within any number of these judicial territories, so many portions of these effects may happen to be situated. In this case, even though perfect intercommunication of jurisdiction was to have place between the judge of each judge-shire and the judge of every other; still preponderant convenience might require, that for this purpose employment should be given to the power of the judge of this or that subsequential judge-shire.

Originating judge-shire, or say judicatory, suppose in London: of the effects, one parcel in Liverpool. Of seizure and sale, the purpose might perhaps as conveniently be fulfilled by mandate from the London judge-shire. But, for the discovering what they are, and in whose possession situated, suppose evidence necessary, and that evidence composed of the testimony of a person resident in Liverpool: here, expense and delay in no small proportion will be saved, if it be by a Liverpool judge instead of the London judge that the examination of the Liverpool witness is performed.

211.—II. As to evidence. In regard to evidence, what is desirable is, that, in each individual case, whatsoever evidence the case affords, be obtainable, in whatever part of the globe it happens to be situated; whether in England, Ireland, Scotland, a distant dependancy, or a country under foreign dominion: obtainable with the best security for its completeness and correctness, and with the least delay, expense, and vexation: with least delay, and accordingly from persons and things in any number, at the same time.

212. Good effects in this respect obtainable from removal, and not otherwise, these.—

I. Obtainment of evidence not otherwise obtainable.

213.—II. Obtainment of it in the best shape, that is to say, that which it assumes when elicited in the oral mode: when, otherwise, it could not be elicited but in a less instructive shape; namely, when elicited in the epistolary mode.

214.—III. Obtainment of it from its several sources, namely, persons and things, in any number at the same time, for the purpose of the same suit; and, in each instance, in that one of the two modes which, on that individual occasion, is best adapted to the aggregate of the purposes of justice.

215.—IV. Accomplishing the elicitation, not only with the minimum of delay and vexation; but that minimum laid, in each individual instance, on the shoulders best able to bear it: namely, those of the public at large, in so far as practicable without preponderant evil in the shape of addition made to the expense.

216. For all these several purposes, removal of the suit from the originating judicatory to some other or others, is eventually necessary; that is to say, in so far as the means necessary for the accomplishment of these three several objects respectively in the best mode, fail of being in the power of the originating judicatory, and at the same time are in the power of some other, which accordingly is constituted the subsequential and recipient judicatory.

217. Of the benefit in all these shapes, a necessary instrument will be seen to be the division of the local field of judicature into the above-mentioned compartments, styled on this account judge-shires: extent of each judge-shire limited, in such sort that, the justice-chamber being in the centre, every inhabitant, not disabled by infirmity, may, during the sitting of the judicatory, be in attendance therein, without passing the night elsewhere than at his own home.

218. Mode of elicitation, oral or epistolary: places, the originating or subsequential judicatories, in any number, according to the exigency of each individual case.

219. Eventually subsequent to epistolary, oral elicitation: now for the first time this arrangement: object of it, check upon, security against, falsehood.

220. Where, for correctness and completeness of the whole body of evidence, the confrontation of all persons speaking to the same fact is regarded as necessary,—confrontation accordingly: not otherwise: place, either the original, or some subsequential judicatory.

221. So, order in respect of time of elicitation as between the several examinands: that is to say, co-plaintiffs, if any,—defendants, and other persons at large, in the character of extraneous witnesses.

222. Now, as to retro-transference and retro-reception, or say, return of the suit to the originating judicatory. Demand for it will in some instances have place, in others, not: purpose of it, continuation of the series of operations, by which commencement had been performed.

223. By all these arrangements taken together, minimized will be seen to be the burthen of the expense: that is to say—1. By minimization of the extent of the judgeshire, the quantity of the expense, of journeys and demurrage; 2. By transferring to the letter-post the conveyance of such of the written instruments as are contained within the compass of an ordinary letter, expense of intercourse in so far minimized; 3. By laying on the shoulders of government, and thereby of the public at large, that same expense, together with the whole of the remuneration of all judicial functionaries,—minimized will be the hardship of the burthen, by its being laid on the shoulders best able to bear it. Thus provided for by far the greatest part of the expense: other part, by fines for delinquency on the part of defendants, where there is no individual specially wronged, and for misconduct in the course of the suit, on the part of suitors on both sides: particularly if in the shape of falsehood: always remembered, that the burthen of compensation has the effect, and even more than the effect, of money to the same amount exacted, and applied to the use of the public, or in any other way disposed of.

224. By the evidence-holder, understand the person whose testimony is requisite, or who is in possession of the writing, or other thing which is the source of the evidence. When of this evidence-holder, the residence is at the time in the dominion of a foreign power, elicitation in the epistolary mode may be practicable or not with advantage, according to circumstances. Practicable it will be in so far as, by any means, he happens to be in effect subject to the power of the judicatory: means of such subjection, subject-matters of property, whether moveable or immoveable, in possession or expectancy, certain or contingent, so circumstanced as to be susceptible of seizure by the judge. So, as to subject-matters termed incorporeal, that is to say, rights of all kinds. From the impracticability of making this mode of elicitation available in some cases, no reason assuredly can be deduced, for the not employing it in any case in which it can be made available.

225. In so far as, for any of the above purposes, on any of the above occasions, removal in each of the two modes, with or without retro-transference to and retro-reception on the part of the originating judicatory, has not place,—manifest it will now (it is hoped) be, that the jurisdiction of the whole territory cannot but be, as the phrase is—lame: and in what a multitude of its organs and muscles jurisdiction is under the existing system lame, and to all good purposes impotent, will be manifest to every person, in proportion as his conception of that same system is correct and complete.

226. For extraordinary removal, sole case this:—By a judicatory, or by a tribunal of exception, cognizance taken (suppose) of a suit, which lies not within its competence; here will be a case—either for the extinction of the suit altogether, or for the removal of it into the sort of judicatory, to which (those exceptions excepted) cognizance is given of all sorts of cases. Tribunals of exception these:—Military judicatories for the establishment of appropriate discipline among military functionaries, in both branches—land branch and sea branch—of that service: ecclesiastical functionaries (in a country in which an ecclesiastical establishment has place) for the establishment of discipline among ecclesiastical functionaries.

227. Removal in both shapes will, in some cases, of necessity, have place in the same judgeshire; for example, as between the judge principal and judge depute,—in case of death, simple transference: in case of temporary inability through illness—perhaps simple transference—perhaps oscillation or bandying, may be the more eligible course.

Only that it may not be supposed to be overlooked is this need mentioned.

228. Enter now the existing system. Short account of it, as to this matter, this:—The purposes for which,—the occasions on which, so as to be conducive to the ends of justice—say in a word useful,—the removal will take place, have been seen. Under the existing system, for none of these purposes, on none of these occasions, has it place: on none but where (the rare case—that of applying a check to usurpation alone excepted) it is worse than useless.

229. Intricate is here the complication, vast the labyrinth constructed by it: to let in upon the whole expanse the full light of day, would be an endless enterprise: only, by way of sample, upon a hole-and-corner or two, can a few rays be endeavoured to be cast.

230.—I. Sample the first. Mode of established removal, the simple transference mode. 1. Class of cases and suits, that called criminal. Species of cases, that called by the nonsensical term, felony: thus denominated from the sort of punishment attached to it: nonsensical, because no idea does this denomination afford of the nature of the evil; nor therefore of the cause for which it is thus dealt with.

231. Course taken by the suit in these cases, this:—

Case the first:—Judicatory in which the suit is tried, the original common-law judicatory, having for its seat, in a country cause, the assize town.

I. Originating judicatory, that of justices of the peace, one or more, acting otherwise than in general sessions, as above.

II. First recipient judicatory, the grand jury for the county, sitting at the place where the trial is about to be performed.

III. Second and last recipient judicatory, that in which the trial is performed, as above. In this case, it is in that same town that the judgment is pronounced. Place of execution varying; but no return in any case to the originating judicatory.

232. Note that, in the case of homicide—a crime belonging to this same class of felony—an originating judicatory, taking cognizance antecedently to the above, is the court called the Coroner’s Inquest: judge, the coroner: with a jury called the inquest jury.

233. Of these removals, note now the consequences in regard to evidence. Short account this: Shape in which the evidence is elicited, more or less different in all these cases; the mass elicited on the first occasion made no use of either in the second or the third: the mass elicited in the second made no use of in the third: the two first masses—after the expense, labour, and time, employed in the elicitation of them, thrown away.

234. Even of this third mass no use is made for any purpose subsequent to the verdict. For, being elicited in the oral mode, it is not committed to writing, by authority;—only by accident, that is to say, by this or that individual, by whom the profit on publication is looked to as affording a sufficient return for the labour and expense of minutation.

235. In one class of cases, the suit does receive its termination in the same judicatory in which it has received its commencement: these cases are of the number of those consigned to the cognizance of a justice of the peace acting singly, or two or more in conjunction, out of general sessions. Now then, supposing the judicatory aptly constituted, why (except in the cases provided for under the herein proposed system as before) why should it not so do in these, and, in a word, in all other cases? And where is the case, in which the judicatory should be otherwise than aptly constituted?

236. In the originating judicatory—namely, that of the justice of the peace acting singly,—sometimes a part only of the stock of evidence which the individual can afford, will have been elicited—sometimes the whole of it, as it may happen; but where the whole of it does happen to be elicited, the suit is not the less sent in to those other judicatories.

237. Moreover, where, after the whole of the evidence which the suit affords has been heard, including the evidence on the defendant’s side,—be this evidence in its own nature ever so satisfactory, and as against the defendant conclusive, yet thereupon, when the suit has been transferred to the secret judicature,—the grand jury, it is liable to be, and not unfrequently is, decided the opposite way, on evidence heard on one side only: meantime evidence-holders have had from a day to half a year given to them,—to go off of themselves, or to be bought off,—and, in prison, the defendant, guilty or not guilty, that same time, for contaminating, as the phrase is, or being contaminated, or both: if not guilty, there to moan under the oppression, thus, for the benefit of Judge and Co., exercised on him: and, whether he be guilty or not guilty, the country is made to suffer under the expense of keeping him in a state of forced idleness.

238. Cases in which removal in the oscillation or bandying mode is employed, these:

All suits termed civil, commenced in any one of the three common-law Westminster-hall courts.

239. In Westminster Hall, they take their commencement without elicitation of evidence: their commencement, viz. in the office of a clerk: mode, the mechanical mode, as above; the judges not knowing anything about the matter: applications, incidental and accidental, excepted; for example, for leave to plead, or for putting off the trial.

240. For elicitation of evidence, in a country cause, off goes the suit to an assize town, there, as the phrase is, to be tried; to wit, by the elicitation there performed, by a judge dispatched thither from one of the Westminster-hall courts, with a petty jury.

241. The trial performed, back it comes to the judicatory from whence it had emanated; and there it is that, in the mechanical mode as above, it receives judgment.

This done, then back again it goes to the same county for execution; but, for execution, the office it goes to is—not any office belonging to the court in which it originated, nor that in which the trial was performed: it is the office of the sheriff of the county in which the suit was tried.

242. Such is the operation of the judgment, when it has for its subject-matter, a person, or a thing moveable or immoveable: whereupon the officer causes hands to be laid upon the person or the thing; and, in the ordinary course, does by that same person or thing what by the judgment he has been bid to do. But, in some cases, the suit has for its subject-matter nothing on which hands can be laid;—nothing but a fictitious entity—an incorporeal thing—to wit, a right, or an obligation; in which cases, as execution consists in the extinction of the obligation or the right, words contained in the judgment suffice—words, without acts and deeds, for the performance of it.

243. Now for removal upon an almost universal scale—removal by certiorari.

Exceptions few excepted, from all courts a suit is, at any stage, removable into the King’s Bench. Instrument of removal, a writ styled in the Judge and Co.’s dialect of the flash language, a certiorari: in the language of honest ignorance, a sisserary: witness the threat, “I’ll fetch you up with a sisserary.”

244. Eminently mischievous to the community at large, correspondently beneficial to Judge and Co., is this same monster. Mischief it does in two ways:—1. By its operation when not killed; 2. By its dead carcase when, by a clause in a statute, killed. Of such as are let live, the effect is—from a less expensive, and comparatively to Judge and Co. unprofitable, judicatory, to send up the suit to a more expensive and more profitable judicatory: as to the carcases, they are those of the certioraris, killed in embryo, or endeavoured so to be; that is to say, in and by every statute, by which additional jurisdiction is given to a justice of the peace, or other summarily acting judicatory. In this case, one of two things:—either, by the insertion of the clause by which the death is produced, so much rubbish is shot down into the statute-book, or else danger of inefficiency is left by the non-insertion of it.

Note by the bye, that in every such statute, this is but one of a string of efficient causes of inefficiency, which must be thus dealt with, or the like effect will follow.

245. Yes, endeavoured to be: for (as lawbooks show,) not in every instance has the endeavour been successful: on this occasion, as on all others, in comes the established habit of Judge and Co.: when a clause of an act of the legislature is brought before them, they pay obedience to it, or run counter to it, as they feel inclined: moulding the law, is among the phrases on this occasion employed.

246. Now for the instrument and document, which, in case of removal, whether established or incidental, is the corporeal subject-matter of this same operation; the suit being the incorporeal subject-matter of it. Of this instrument, the proper contents will be composed of a statement, or say history, of the several proceedings, carried on in the course of the suit: proceedings,—that is to say, appropriate operations performed, and written instruments framed and issued or exhibited: contents, for various purposes, proper: for the purpose of appeal, and in so far as that is in contemplation, altogether indispensable.

247. Of this history, by far the largest, the bulkiest part, will consist of an account of the evidence: to the evidence which by this means, for this purpose, has, in the course of the suit, by the correspondent operations been elicited in the word-of-mouth mode:—the expression given to it by the pen, by the taking it down, as the phrase is, or in one word, the minutation of it, will constitute a written instrument.

248. Hereupon, in the instance of each individual suit, will arise two questions.—1. Shall the minutation be performed? 2. When it is performed, shall the result be, for any and what length of time, preserved? To both these questions, the proper answer will depend—upon the proportion between the profit in the way of use elicitable from the document, and the loss composed of the expenses: always understood—that wheresoever appeal is in contemplation, preservation will of course not be less necessary than creation.

249. As to all matters besides the evidence, so small in comparison will in every instance be the bulk of them, that of what is necessary to either of these operations, of no part can the expense be grudged.

250. Obvious as may seem these observations, not so obvious are they as to be superfluous: for by them will judgment have to be pronounced on the practice of the existing system in relation to the subject-matter of them.

251. Enter now accordingly, the existing system. To the difference between courts of record and courts not of record, prodigious is the importance attached by it. Mountains, in the survey taken of them, the courts of record: mole-hills, the courts not of record.

252. Now as to the treatment given by the two sorts of courts to the mass of evidence belonging to the suit.

In the record of the courts of record, not a syllable of this same evidence is ever inserted: and in particular, in those of the Westminster-hall courts—the King’s Bench, the Common Pleas, and the common-law side of the half common-law, half equity court—the court of Exchequer.

253. In the records of the courts not of record, every syllable of the evidence elicited. Witness—1. The Chancery court: including its subordinate branches, the Vice-chancellor’s and the Master of the Rolls’ court;—2. The courts held by the bankruptey commissioners, and which are also courts subordinate to the Chancellor’s court;—3. The equity side of the Exchequer court.

254. Between the real state of things, and the pretended state, as intimated by the denomination thus given,—whence this seemingly strange difference? Answer—By the common-law court it is that this nomenclature was framed. Courts to which the depreciatory denomination was attached by them, the shops of their rivals in trade: rivals, with whom for a length of time they had fierce battles; till at last an accommodation was come to:—of course, at the expense of customers, and of those who should have been, but by the expense were kept from being, customers.

255. Of the particulars contained in the instrument styled the record, as framed in the courts self-styled courts of record, what shall be the account given? Short account this:—

I. Written pleadings, which ought not to have been exhibited.

II. Mendacious assertions, by word of mouth and in writing, which ought not to have been uttered.

III. Delays such as have been seen, which ought not to have been made.

IV. Ulterior delays—fruits, such as have been seen, of the precipitation established.

V. Products, of the blind fixation as above—days appointed, for operations, which it was foreknown could not on those several days respectively be performed.

VI. Operations, which, in pursuance of the system of mechanical, vice mental judicature, are stated as having been performed by the judge, though, if performed at all, it is not by him that they have been performed.

VII. Removals made, which ought never to have been made.

256. Prefaced the whole by a fabulous history of apparitions: statements asserting appearances as having been made by unhappy defendants (and in these courts what defendants are not unhappy?) who from beginning to end never did appear: they not knowing, nor having it in their power to know, what to do, had they appeared: and knowing but too well that, had they appeared, their appearance would have been of no use.

257. As to the written pleadings,—note, that though otherwise than in an eventual, indirect, and disguised way, as above, the effect of evidence is not given to them,—not unfrequently more voluminous are they than the evidence is, or would have been if properly elicited.

258. As to suit and record taken together,—under the existing system, general conclusion, as intimated at the outset, this: To any useful purpose, removal none: to purposes worse than useless, removal in abundance.

259.—XI.

Device the Eleventh—Decision on grounds avowedly foreign to the Merits.

☞ For the matter belonging to this head, reference may be made to the Full-length Petition.

260.—XII.

Device the Twelfth—Juries subdued and subjugated.

☞ For the matter belonging to this head, reference may be made to the Full-length Petition.

261.—XIII.

Device the Thirteenth—Jurisdiction split and spliced.

In the Full-length Petition (pages 482 and 483) have been seen, the sorts of courts, splinters from the one original Aula Regis, each with a different scrap of jurisdiction. Number, not less than thirteen: without reckoning others which in process of time came to be superadded. Number of judges in these respectively, from one to an undefinable greater number: species of functionaries, acting in various ways in subordination to the judge, in one alone of these same thirteen sorts of courts (as per Full-length Petition, page 400) more than twenty; not to speak of the other sorts of subordinates acting in the other sorts of courts: all these species, instead of the four or five, which, in every court would (as per page 491) with the addition of no more than two or three others in some special cases, be sufficient.

262. That confusion may be still worse confounded, behold now a sample of the diversification which, in these same judicatories with their additaments, the denomination given to the character of judge has been subjected to: the function belonging to that character being disguised, under and by most of those several denominations: a sample only—not a complete list: for the labour of making it out would have been unrequited, and unendurable. Here they are—

1. Lord High Chancellor.

2. Lord Keeper of the Seals.

3. Lord Commissioner of the Great Seal.

4. Master of the Rolls.

5. Vice-Chancellor.

6. Lord Chief-justice of the King’s Bench.

7. Lord Chief-justice of the Common Pleas.

8. Lord Chief-baron of the Court of Exchequer.

9. Puisne (pronounced puny) Justice of the King’s Bench and Common Pleas.

10. Puisne Baron of the Exchequer.

11. Master in Chancery.

12. Master of the Crown-office.

13. Prothonotary of the Common Pleas.

14. Remembrancer of the Court of Exchequer.

15. Commissioner of Bankruptcy.

16. Commissioner of the Insolvency Court.

17. Justice of the peace.

18. Chairman of the quarter-sessions of the peace.

19. Recorder.

20. Common Serjeant.

21. Commissioner of the Court of Requests.

22. Privy Counsellor.

23. Chancellors of the duchy of Lancaster, of the bishoprick and county palatine of Durham.

24. Vice-chancellor of a University.

25. Lord Delegate.

26. Dean of the Arches.

27. Chancellor of an Episcopal Diocese.

28. Surrogate of a Diocese.

29. Commissary of an Archdeaconry.

30. Assistant-barrister (in Ireland.)

31. Grand Juryman.

32. Constable of the night.

33. Annoyance Juryman.

34. Coroner.

35. Steward of Manor Court.

36. Warden of the Stannaries.

37. Warden of the Cinque Ports.

38. Vicar-general of the Preachers. (Quere, whether judicial?)

39. Official Principal of the court of Arches.

40. Master of the Prerogative Court.

41. Master of the Faculty Office. (Quere, whether judicial?)

42. Official principal to various deaconries and archdeaconries.

43. Commissioner of the Hackney Coach Office.

44. Commissioner of Excise.

45. Commissioner of the Customs.

46. Commissioner of the Audit Office.

47. Auditor-general (of Greenwich Hospital.)

48. Commissioner of a Court of Claim.

263. As to the confusion in which the enumeration thus made of them is involved,—so far from being a blemish, it may be stated as a merit: serving, as it does, to render the portrait the more appropriate and perfect a representation of the original.

264. Behold another evil, produced by the jurisdiction-splitting, and not brought to view in the full-length petition. This is—the all-pervading denial of justice, produced by the exclusion put upon one or other of the two remedies which wrong in every shape calls for: namely, the satisfactive and the punitive. Modes of procedure, the fissure makes two:—the one styled civil, the other criminal: in and by the civil you may demand the satisfactive; in and by the criminal, the punitive: in some cases, you may have the one; in other cases, the other: but with scarce an exception, both together,—either by one and the same suit, or by two different suits,—you cannot have. As to courts,—the satisfactive remedy, you are admitted to demand at the hands of either of two courts—the King’s Bench or the Common Pleas; not to speak of the Exchequer: the punitive, you are not admitted to demand in more than one of these two courts, namely the King’s Bench. Moreover, there is another sort of court in which in some cases you may demand the punitive, namely the provincial court—the quarterly-sittings justice of peace court: whether, after obtaining in this court the punitive remedy, you can take your chance for obtaining in one or other of the two metropolitan courts, the satisfactive,—say who can; never yet (it is believed) has the experiment been made. Moreover, from this local court, the suit may, without reason assigned, by means of a sort of a crane termed a certiorari (as per 244,) be raised up into one or other of these two higher and more expensive courts: and this, either by the author of the wrong, or by you—the party wronged.

265. Of this severance, by co-operation and a sort of tacit concert between Judge and Co. on the one hand, and the rest of the ruling and influential few on the other,—advantage was taken, to give additional strength to their power of exercising depredation, as well as oppression, at the expense of the subject many. By the high price put upon the chance of receiving the article at the hands of Judge and Co., the satisfactive remedy, in so far as not obtainable but by procedure in the regular mode, was effectually denied to the vast majority of these same subject and oppressed many. So far as dependent upon law, these that were unprivileged were thus laid completely at the mercy of the thus privileged classes, in all cases to which the application of the punitive remedy did not extend itself.

266. Dear, it is true, was the price; still, however, in the eyes of a large proportion of those to whom the privilege was thus granted, the advantage was and is worth the purchase. By each man the privilege is possessed, and, whether exercised or no, exercisable at all times, all his life long, and to a certainty: whereas the inconvenience of paying for it, namely by the expense of going to law, or being at law,—is a danger, the magnitude of which is, by each man’s confidence in his own good fortune, concealed from his regards.

267. This being the imposed price,—how happened it that the intended victims were not deprived of the benefit of the punitive remedy, as well as of that of the satisfactive? Answer—This they could not be, without an all-comprehensive sacrifice of all security against wrong,—a sacrifice in which the sacrificers themselves, as well as the intended victims, would be included. To the security of the privileged classes it was necessary that not only they themselves should be preserved from depredation and oppression altogether, but that the unprivileged classes should be preserved, as far as might be, from depredation and oppression at the hands of one another: otherwise production would cease; and with the subject-matter of depredation, the power of exercising it. To this purpose it was therefore necessary, that application of the punitive remedy should, in a more or less considerable degree, be kept free from the clogs, by the strength of which the satisfactive remedy had been rendered unattainable to the unprivileged and devoted many.

268. How to effect the severance was however the difficulty. Of this difficulty, the primeval penury, brought to view at the outset of the full-length petition, had been certainly one cause: the want of sufficient discernment and talent, perhaps, another. Whichever were the case, so it happened that the machinery employed in the application of the punitive remedy, was no other than that employed in like manner upon the satisfactive: whence it happened, that the load of factitious delay and expense, laid upon the one, pressed also upon the other.

269. Without the fiat of a grand jury, for example, captain of the prisoner could not take place; and, except at the metropolis, no grand jury sat, but at the assizes: and the assizes were not held oftener than twice a-year in any county, nor than once in some counties; nor in any county did they last more than two or three days: and, suppose the caption effected, trial could not take place till the next assizes. What, as to offences, were the consequences? Abundant as they were upon the continent, criminal offences operating by force, were in England in still superior abundance. In the time of Henry VI., Fortescue, then chancellor, takes notice of this superiority, and makes it matter of boast. In the reign of Henry VIII. (as may be seen in Barrington’s Observations on the Statutes) no fewer than 72,000 individuals suffered death by hanging,—about 2000 a-year upon an average: this, out of a population not half so great as at present.

270. Of the marriage of Queen Mary with Philip of Spain, one consequence was—the putting England, in this respect, upon a level with the continent. Rome-bred was the species of law, by which the continent was then, as now, principally governed: and, under Rome-bred law, persons accused of crimes might be apprehended at all times. By a statute of Philip and Mary, this power was given to justices of the peace. In the case of a criminal suit, thus was caption, with commitment accelerated: still trial remained at an undiminished distance. But, how inadequate soever to the purpose of deterring others,—commitment made in this mode would, of itself, so long as the incarceration continued, give effectual security as against future offences on the part of the same delinquent: for, while a man is in jail, he cannot commit crime out of it. Sagacity neither was nor is wanting to perceive this incontestable truth.

271. With this arrangement, the contracting parties—Judge and Co. of the one part, and the rich and powerful of the other part—were, and continue to be, well satisfied. True it is, that upon this plan, this so regularly and uniformly applied lot of suffering of about twenty-six weeks, or fifty-two weeks, applied without regard to quality of guilt, is,—when, in consideration of quality of guilt, a few weeks, and not more, ought to be suffered,—applied in addition to those few weeks. True it is, moreover, that it is applied to the innocent who ought not to suffer at all. True it is, moreover, that all this while the innocent part of the thus forcibly mixed company, thus dealt with, are (as the phrase is) contaminated; and the guilty are occupied in contaminating as well as in being still further contaminated. “But what care I for all this?” says to himself noble lord or honourable gentleman; “none of it can ever fall upon me or any friends of mine. No danger is there of our being thus taken up, and if we were, we should be bailed of course. Then, as to the contamination, this could not be put an end to without innovation; and that would be out of the frying-pan into the fire. Besides, there is a satisfaction in having thus to talk of contamination: as it is the poor alone that are exposed to it, it gives a zest to the pleasure we feel in the contempt we pour upon them; it magnifies the great gulf which is fixed between them and us.” Such is the almost universally established sentimentality and correspondent language in the upper regions: as if by far the most maleficent of contaminations were not that, which (as hath over and over again been demonstrated) in these same upper regions, and in particular, in the part occupied by Judge and Co. has its source.

272. Thus it is, that over and above the power of depredation, as well as oppression, which (from the nature of things) the rich and powerful, as such, unavoidably possess, at the expense of the poor and helpless,—they possess this vast additional power derived (how indirectly soever) from positive law.

273. By this confederacy it is, that the most powerful obstacle to law reform is constituted. Judge and Co. having, by the price put by them upon what is called justice, placed the satisfactive remedy out of the reach of all but the favoured few,—noble lords and honourable gentlemen run in debt, under the assurance of having it in their power to cheat creditors: and thus by the higher orders are the lower orders spoiled, as by the Israelites the Egyptians. So completely, by a mixture of pride and cupidity, is all sense of shame capable of being extinguished, that right honourable and noble lords have been heard to say, and without contradiction to insist, that for small debts, in this case, there ought to be no remedy. Why no remedy? Because affording a remedy against injustice encourages extravagance: as if, with this or any other encouragement that could be given to extravagance, the extravagant could ever be the majority; as if, without consent on his part, wrong in a pecuniary shape could not be done to a man in a variety of ways; as if dishonesty were not still worse than extravagance; as if, whatever were the amount, the loss of what is due to him were not a greater evil to any man, than the payment of what is due from him to another is.

274. In pursuance of this same policy, property, in a shape in which noble lords and honourable gentlemen have more of their property than in all other shapes put together, is exempted from the obligation of affording the satisfactive remedy—in a word, from the obligation of paying debts, while property in these other shapes is left subject to it. Noble lords or honourable gentlemen contract debts, and instead of paying them, lay out the money in the purchase of land: land being exempted from the obligation of being sold for payment, creditors are thus cheated. Noble lord’s son is too noble, honourable gentleman’s son too honourable, to pay the money, but not so to keep the land.*

275. For the like reasons, mortgages and other charges upon land are not to be, in an effectual way, by registration or otherwise, made knowable. Why? Because, if they were, money, of which it were known that if lent it would not be recovered, would not be sent; extravagance would thus be lessened; swindling, as above, would thus be lessened; and, in a country in which a man who is rich and not honest receives more respect than a man who is honest and not rich,—obtainment of undue respect for opulence not possessed would thus be lessened.

276.

For Device XIV.—Result of the fissure—Groundless Arrests for Debt.—See the Full-length Petition.

277 or 80.Supplement to Device V. Oaths necessitated. (Full-length Petition, pp. 454 to 467. Abridged Petition, p. 516, art. 79.)—Consummation of the mass of evil shown to be produced by this device as above. By this one instrument, evil is capable of being produced, more than by all others put together. For by it, besides the evil produced by itself, eternity is capable of being given to the evil produced by all those others.

278 or 81. Even without this addition, sufficient for any ordinary appetite for the pleasure of maleficence, should be the power of the singly-seated absolutist. Infinite, however, is the addition, which the power of imposing oaths is capable of making to it.

279 or 82. Extirpation of all heretics—extirpation of all liberals,—conceive a Don Ferdinand, conceive a Don Miguel, bent upon procuring for himself these two gratifications—either of them, or, which would save trouble, both together:—for the accomplishment of these objects, added (suppose) the obligation of making re-application of those tortures, the application of which used to be common for some of these same purposes.—Nothing can be more easy. Two formularies for this purpose are already to be had from geography and history. He goes to work thus: An appropriate oath of the promissory kind is framed. All public functionaries take it: functionaries, administrational—judicial—military. All schoolmasters and schoolmistresses take it: they administer it—all of them—to their respective boarders and scholars. All husbands administer it to their wives: all parents, to their children, who by the form of it stand engaged to transmit it to their children, and so on to the latest posterity. Behold here a sort of estate tail, for the barring of which no fine, no recovery is available.

280 or 83. Dangerous enough in an absolute monarchy, of which there are so many examples,—it is still more dangerous under a pure aristocracy, of which there is one example, and under that composed of monarchy and aristocracy, of which there is another example. A monarch has caprices: an aristocracy has no caprices. By the monarch of the day, the oath imposed one hour, may be taken off the next hour. The oath imposed by the monarch of one day may be taken off by his successor—the monarch of the next day. Under an aristocracy, relief has no such chance. Long before the aristocracy-ridden monarchy of England had begun to lighten the yoke of religious tyranny on the necks of the Catholic subjects, Austrian monarchs had nearly removed it off the necks of their Protestant subjects.

281 or 84. To the extent of the evil produced by this instrument, addition may be made day after day: and, as to duration—if by it the existence of the evil can be secured for two days together, so may it be to the end of time.

282 or 85. Those, who are so fond of it, when employed, in giving support to their own sinister interests or prejudices, on one part of the field of law,—might do well to think, how capable it is of being employed against those same interests or prejudices, on another part of that same field. A radical, who wishes to see it continued to be employed against catholicism, should have considered how capable it is of being employed against radicalism. Against radicalism? Yes: or against any the smallest melioration in the form of the government.

283 or 86. Lord Castlereagh and Lord Sidmouth, when they enacted the Six Acts, should, after making a few more such acts—whatsoever were necessary to complete their plan—have taken this method of giving perpetuity to it. Without touching the invaluable coronation oath, an amendment tacked to it would have done the business at once. The heavier the yoke thus laid on the necks of the subject many, the more exquisite would then have been the tenderness of all royal consciences.

284 or 87. Will it be said—“No: formidable as the instrument is, the application made of it will never be carried to any such lengths?” Let him that says so, say—at what point it is that the application will be sure to stop. Let him say—at what point the appetite for power will be sure to stop. This point found, let him say—whether, after having reached that point one day, it may not go on the next.

285 or 88. Observations these—which, by their importance, may, it is hoped, atone for the irregularity committed by the insertion in this place given to them.

MORE ABRIDGED PETITION FOR JUSTICE.

To the Honourable the House of Commons; the Petition of the Undersigned,

Showeth,

1.That, so far as regards the law in general, and the constitutional branch in particular, the main object of attachment and veneration is—the law called Magna Charta, the earliest of all statutes now recognised as such; and upon occasion, as such it is spoken of by all legislators and all judges.

2. That although, in large proportion, the happiness of us all does in truth depend upon the degree of observance given to a certain clause of it; yet, in respect of that same clause, is this same fundamental law grossly, notoriously, and continually violated: violated by all judges who are styled judges, and that violation connived at by legislators.

3. That though, in and by this clause it is said in so many words—“To no one will we delay, to no one sell, to no one deny justice;” meaning by justice, judge’s service—the sort of service performed by a judge as such, yet is this same justice, in all common-law, equity, and ecclesiastical courts, wilfully delayed to all—sold, at a vast and extortious price, to those who are able to purchase it,—and denied to all those who are unable: in which sad case are the immense majority of the whole people.

4. That the sale, thus made of the service performed by a judge, was produced, and is continued, by the mode in which remuneration was made for such service: the matter of such remuneration coming out of the pockets of those by whom alone the benefit of such service was supposed to be reaped, and increasing with the number of the official operations, performed, or falsely said to be performed,—and the number and length of the written instruments framed, or falsely said to be framed,—on the occasion of such service: of which remuneration, each distinct portion so received is styled a fee.

5. That, setting aside the case in which he is paid (as by money in the shape of salary,) without prospect of increase of pay by length of time,—there are two modes in which a workman of any sort is paid for the service done by him, or supposed to be done: one is that in which he is paid for the quantity and quality of the work done, or supposed to be done; this is called payment by the job, and the work is called job-work: the other is that in which he is paid according to the time, during which he is occupied or supposed to be occupied in doing the work; this is called payment by the time, and the work is called time-work.

6. That, for letting in operations upon operations, and written instruments upon written instruments, and applications for enlargement of the time,—a proportionate quantity of delay has been and is made necessary: and here may be seen the sinister interest in which the factitious part of the delay has its source.

7. That, in whichsoever mode the payment is made,—where, in official service, there are masters and servants (styled superior and subordinate) occupied or supposed to be occupied in the same work,—there are two modes in which the benefit of such remuneration finds its way into the pockets of the superior—in the present case, the judge: one, according to which each fee is paid to himself; the other, according to which the fee is paid to the possessor of some office under him, of which he has the patronage; and that thus, it being the interest, and put into the power, so has it been and continues to be the practice, of judges—to raise to the utmost the price paid, by the suitors, for the service of the subordinates of these same judges.

8. That the same community of sinister interests, which, in the case of the official class of lawyers, has place between superiors and subordinates, has place between the whole of the official class and the whole remaining class (that is to say, the professional) their emolument being composed of payment made for service done, or supposed to be done, to their respective clients—the parties: the more suits the one class gets, the more suits the other gets; and the more money the one gets, the more money the other gets, upon each suit: and thus it is that, by the judges to swell their own emoluments to the utmost, the suitors, who would be sufficiently vexed by the suit without being taxed, are taxed three times over: by payments to the judges, by payments to their subordinates, and by payments to the professional lawyers: the classes of whom are, for the same sinister purpose, multiplied without limit: and not only without use to, but greatly to the detriment of, truth and justice.

9. That, while thus benefiting themselves by the sale of justice, the same judges—by the same means—produce benefit to themselves by the denial of justice; for that, in so far as a judge saves himself from being called upon to perform his appropriate service, without losing money by so doing,—he obtains ease; and, as the total amount of the remuneration depends—partly upon the number of the suits, partly upon the amount of profit upon each suit,—and the number of the purchasers decreases as the price increases,—the price demanded will consequently be always as high as, without lessening the total profit, by lessening the number of the purchasers, it can be made to be. Here then, in the sale of what is called justice, as in the sale of goods, a constant calculation has, at all times, been carrying on; and, that the price is no higher than it is, is owing to this—namely, that if it were higher, more would be lost by the number of the persons prevented from being customers, than gained by the extra tax imposed upon those who become customers.

10. That thus, although in point of morality it is, and in point of law it ought to be made, the duty of a judge—to make the number of those to whom his service is rendered as great, and the service rendered to each as great, and as cheap, as possible,—yet so it is, that it having, as above, been made his interest, as well as put into his power, to render the number of those to whom his service is rendered as small, and the service rendered to each as small, and dear, as possible,—his interest is thus, by these arrangements, put into a state of opposition to such his moral duty:—opposition, as complete as possible.

11. That, in respect of expense, such is the effect of this sinister interest, that, where money or money’s worth is the subject of dispute,—in the common-law courts, the least amount of the expense is, on each side, under the most favourable circumstances, upwards of £30; while, in cases to a large extent, it amounts to hundreds of pounds, and in the equity courts to much more: and, by appeal from court to court, one above another, under different names,—it may be, and is, raised to thousands of pounds: in the equity courts to little if anything short of tens of thousands of pounds: and this in cases in which, under the only mode of procedure really conducive to, or aiming at, justice (of which mode presently) the suit would be heard and determined, without any expense in the shape of money, and at an inconsiderable expense in the shape of time.

12. That, in cases of bankruptcy and insolvency, matters are so ordered, that,—in a great, not to say the greater, part of the individual instances,—the persons among whom the greater part, not unfrequently the whole, of the effects are distributed, are—not the creditors, but the lawyers:—the lawyers of both classes: and, as if to thicken the confusion and increase the plunderage,—insolvency and bankruptcy, in themselves the same thing, are dealt with, by two different sorts of judicatories,—examining into the facts in two different sorts of ways, upon two different sorts of principles: every insolvent having moreover given to him the means of making himself a bankrupt.

13. That, in the courts called equity courts, matters are so ordered, that, when a fortune is left (for example to a female) by a last will, so it is that, in cases to a large extent, she cannot receive it, till it has passed through an equity court; and the consequence is that, if the fortune—say £10,000—has fallen to her at a period of early infancy, and, upon the strength of it, she has made and received promise of marriage,—upon coming of age, when she should receive it, if at the end of eight years from the death of the testator, she has received so much as a penny for her subsistence, it is a favourable case for her: and, by an opponent, if he chooses to be at the expense, may this delay (as witness a trustworthy writer* ), be “doubled or trebled:” the proceeds being in the meantime swallowed up by the judges and their confederates.

14. That, by intervals of inaction between one part and another of the same suit—intervals of from eighteen to one hundred and twenty days between term and term, and of six months or twelve months between assizes and assizes,—matters are so ordered, that, on the occasion of a penal suit, which, by proceeding as before a justice of the peace, would have been heard and determined in a few minutes,—the accused, guilty or innocent, is confined in a prison for six months or twelve months, there to linger, before the definitive examination called the trial is performed. Thus is produced the so-much-lamented contamination: a disease not least deplored by those to whose profit, and those by whose indifference, it is suffered to continue. All this while, if for a single moment injustice sleeps, why should justice? Even in sabbath time, if the God of justice forbids not the drawing of an ox or an ass, at that time, out of a pit,—with what reason can he be supposed to forbid the drawing an innocent man, woman, or child, out of a prison? or to forbid, for a moment, any operation necessary or conducive to the prevention, suppression, or punishment of crimes, or to satisfaction for the suffering?

15. That, in an equity court, an answer,—which, by proceeding as by a justice of the peace, might be brought out in the same minute as that which produced the question,—may be made to take five years or more to extract,—if he to whom it is put will distribute among the judges and other lawyers the price put upon the delay; and, in cases to a great extent, when the answer is thus obtained, all the use made of it is—the enabling a man to give commencement to another suit—a suit at common law: the common-law judges,—whatsoever question they allow to be put to a witness at the trial, that is to say, towards the conclusion of a suit,—not suffering any question to be put to a party, at the commencement of that same suit. And why? Even because, if they did, suits in large proportion would, in less than an hour, be each of them nipt in the bud;—these same individual suits, of which, in equity, the mere commencement may, as above, be made to last more than five years.

16. That, on pain of losing his right—whatsoever may be the value of that same right,—this is the course, which a man may be obliged to take, in order, for example, to put it to another man to acknowledge or deny his own handwriting:—this being the only course which can be taken, when no third person—who has seen him write, or in any other way is sufficiently acquainted with his handwriting,—can be discovered, and made to answer: common-law judges refusing to suffer any such question to be put, to any person who is a party to the suit: to insincerity thus scandalous, on the part of a suitor who is conscious of being in the wrong, affording in this way encouragement and reward.

17. That, on a proceeding before a justice of the peace, or in a small-debt court, the matter of law, and the matter of fact on which the demand is grounded, are brought forward at the very outset; and, in many if not most cases, the evidence in support of it at the same time: and so, either at that same time, or on as early a day as may be, it is, in regard to the defence: And here, if, in any one case, this mode of proceeding is, in a greater degree than any other that can be employed, conducive—not only to the exclusion of needless expense, delay, and vexation,—but moreover to right decision,—we humbly entreat the Honourable House to consider, whether it can be any otherwise in any other case.

18. That, in the common-law courts,—both in cases called criminal or penal, and in cases between man and man, called civil,—so lost are judges to all sense of shame, that not only do they carry on, but openly avow—yes, and in so many words—the practice of giving “decisions” not grounded on the merits; that is to say, of deciding contrary to justice: for, by a judge, how is it that justice can be contravened, or injustice committed, if it be not by purposely deciding otherwise than according to the merits? And to this dissoluteness is given the denomination, and the praise, of strictness: and, such is the blindness produced by the arts of delusion on the public mind,—that this abomination is, by non-lawyers, commonly supposed to be, because by lawyers it is said to be, necessary, or at any rate conducive, to justice.

19. That, accordingly, it is without scruple that they give one man’s whole property to another man, for no reason than that some lawyer, official or professional, or some clerk in the employ of one or other of them or of some third person, has inserted, in some word, material or immaterial, in some writing, material or immaterial, a letter which is, or is said to be, a wrong one,—or has omitted a right one.

20. That, by the same means, and on the same pretence, and without any the least symptom of regret, they give, habitually and constantly, impunity to crime in every shape: the most mischievous and atrocious not excepted.

21. That, for example, it was but the other day, that a man,—who, beyond all doubt, had cut off the head of a child, was, at the instance of a judge, and for no other reason than that a word in a written instrument had been wrong spelt, acquitted: by which same means, with the approbation of all the judges, impunity may, at any time, by any man, in the situation of a lawyer’s clerk, be given to any other man, for any crime and, under favourable circumstances, the crime may be planned, and impunity secured to it, beforehand.

22. That this practice is the more flagrantly inexcusable,—inasmuch as, while it is carried on by a common-law judge, it is not carried on by an equity judge; nor, unless by accident, and in imitation of the bad example so set by superiors, is it, by a justice of the peace, or by a small-debt court.

23. That, on any occasion, the same judge, who on this or that former occasion has framed his decision on grounds contrary to the merits, declines, if he pleases, to pursue this course, and makes a merit of so doing: that, in this way, any set of these judges may,—under the direction, as usual, and in compliance with the will, of the chief,—give the thing in question—the estate or the money—to whichever of two men he pleases; by which means, without possibility of discovery, corruption to any amount may, on the part of judges in any number, have had place.

24. That, by all judges who are commonly styled judges—common-law judges as well as equity judges (not to speak of others who are not so styled,) mendacity, in one shape or other, is—openly, as well as habitually—licensed, rewarded, necessitated, and practised: and, by these same judges, by such mendacity, is filthy lucre knowingly and wilfully obtained.

25. That, by habit, to such a degree is all shame for the practice of so scandalous a vice extinguished,—that when a criminal who, conscious of his being guilty, confesses himself so to be,—the judge, as a matter of course, by persuasion purposely applied, engages him to declare himself not guilty: as if, supposing it desirable that other proof should be made, it could not as well be made without that lie as with it.

26. That, in like manner, what frequently happens is—that when, no one entertaining the least doubt of the man’s guilt, he is accordingly by the jury about to be declared guilty,—the judge, by persuasion purposely applied, engages them to declare him not guilty: and—so wretchedly, by thoughtless excess in the punishment, has the law been contrived—the law, or that which passes for such—(meaning the common law in contradistinction to the statute law)—that, in the individual instance, more evil is perhaps excluded by abatement in that same excess, than produced by the immorality and the insubordination thus exemplified.

27. That, in common law, under the name of judges, and in equity, under the name of masters in chancery,—judges have been, and habitually continue to be, in the practice of exacting fees for operations never performed: for attendances (for example) never paid: thus adding extortion to fraud: at the same time, not merely admitting but compelling the lawyers of the parties to be sharers in the same guilt, thus multiplying the expense to the suitors, for the sake of the profit to the lawyers:—and this abomination—though brought to their view by evidence which they have caused to be printed,—the commissioners, appointed for the purpose of perpetuating, on pretence of abrogating, abuses,—have, together with the above-mentioned and so many other abuses, suffered to pass without calling for its abrogation,—and without censure, or token of disapprobation.

28. That, under the system thus faithfully, howsoever imperfectly, delineated,—every man who is to a certain degree wealthy, has it completely in his power to ruin any other man who is to a certain degree less wealthy than himself: at the expense of a proprietor,—whether the property be in the possession of the one or the other,—gratification may thus be given by the wealthy man to his avarice: at the expense of any man, proprietor or non-proprietor, to his avarice, or to his groundless hatred or vengeance: the poorer the victim, the less time and money will the gratification thus afforded to the oppressor cost him: in the lawyers of all classes, and more especially in the judges,—on condition of distributing among them the requisite sums in the established proportions,—he will, on this as on other occasions, behold and find his ever-ready instruments.

29. That, accordingly, under such judges and such laws, security for whatsoever is most dear to man—property, power, reputation, personal comfort; condition in life, life itself—is an empty name:—witness, in regard to all real property, the printed declaration of an honest lawyer, whose name is so happily to be found on the list of the commissioners appointed to make report to the Honourable House on that subject. “No title” (says he in so many words,) at present, can be considered as perfectly “safe.”* —and it is by the sinister interest herein holden up to view, that this, as well as the other portions of the law, have been brought to this pass.

30. That, to keep the door shut, as close as possible, against all endeavours to apply to that system of disorder and maleficence any effectual remedy,—pains are constantly taken, to induce the persuasion, that of all these disorders, the cause is to be found—not in human maleficence, but in the unchangeable nature of things:—but, in any such notion, what degree of truth there is, we leave it—after the exposure thus made,—we leave it to all men to imagine, and we humbly leave it to the Honourable House to pronounce.

31. That, should it be affirmed that this our humble representation is exaggerated, and in proof of its being so, should it be asked—how, if the provision made for the support of rights and exclusion of wrongs were no better than as above represented, society could be kept together;—should this be asked, the answer is—that it would not be kept together, but for three things: namely, 1st, The circumstance—that the man of law, though from delinquency in the shape of fraud, from which, in his view of it, he has little or nothing to fear,—he has more to profit than to suffer,—yet, as to crimes of violence,—under the impossibility of providing protection for himself without extending it to the community at large,—he feels it his interest to do more or less towards the exclusion of them;—2d, The guardian influence of public opinion, under favour of that liberty, precarious as it is, which the press is left in possession of;—3d and last, An expectation,—though produced by delusion in spite of experience,—that, on each occasion, will be done that which ought to be done, or something to the like effect: on which last account we cannot but acknowledge, that it were better the delusion should continue, were it not that it is not possible that the disorder should, any further than it is laid open, receive any effectual remedy.

32. Finally, in regard to the so often-mentioned summary system, which is of course represented by lawyers, and thence regarded by others, as having nothing but dispatch to recommend it; we humbly insist, and challenge them to disprove it, that, for rectitude of decision, and thence for giving execution and effect to the law in all its parts,—it is far better adapted—not only than the system styled regular, but moreover than any other that can be named.

33. We therefore humbly pray—that, with such extensions and other amendments as may be found requisite,—this same system of summary procedure may be universally established—a judiciary establishment, suited to the application of it, instituted,—and the system styled regular completely extirpated.

34. For further particulars of the grievance and the main cause of it, but more especially of the remedy,—we take the liberty humbly to refer the Honourable House to the forms of petition, intituled Full-length Petition for Justice, Abridged Petition for Justice, and Petition for Codification,—all bearing the name of Jeremy Bentham, who thereby has made himself throughout responsible for the correctness of the statements therein contained: and to those who cannot find time for the perusal, we leave it to imagine and say,—whether a man, by whom a life of more than fourscore years has been passed without spot, and more than sixty of them employed on works on legislation, which in every part of the civilized world are known and regarded with approbation,—would, on a subject and occasion of such importance,—in the face of that same world, lightly hazard any assertion without some substantial ground.

SUPPLEMENT,

WHICH MAY BE ADDED OR NOT TO ANY ONE OF THE THREE OR ANY OTHER PROPOSED PETITION.

SECTION I.

CORRUPTION—ITS IMPUTABILITY TO ENGLISH JUDGES.

1.Corruption is generally spoken of as the ne plus ultra of depravity in a judge. By Englishmen, the English are commonly spoken of as forming, in respect of clearness from this stain, an honourable contrast with the judges of other countries. After reference made to what is above, we entreat those whom it may concern, and the Honourable House in more especial manner, to consider—whether, either corruption, or something still worse, is not, beyond dispute, with few or no exceptions, but too justly imputable to English judges. For—if denial and sale of justice, with profit by the amount of the sale, be not corruption, or something still worse, what is?

2. Like other trades,—the trade, which may with propriety be termed the trade of corruption, may be carried on—either in the retail or in the wholesale way: in the retail way, when it is at the charge of individuals only that it is carried on; in the wholesale way, when it is at the charge of hundreds of thousands and millions that it is carried on: by sale of justice at the charge of tens of thousands, with benefit in the shape of pecuniary profit: by denial of justice, at the charge of millions, with benefit in the shape of ease.

3. By the word corruption, only in that which has just been styled the retail mode is the thing itself commonly brought to view. In this case, the conception formed of the magnitude of the evil produced, is naturally much exaggerated. Cause of the exaggeration, this: In so far as carried on in the retail mode, whatsoever intercourse has place on the occasion is of course carried on in secret: by the secresy, suspicion, and that on the most incontestable grounds, is excited; facts, though it were in small number, transpiring by accident,—especially when other persons of note are concerned in them, or affected by them—suffice to produce in the public mind the conception—that the instances in which it has place are much more numerous than in reality they are. Under governments, and in judicatories, in which means of corruption, producing profit by money or money’s worth received in the direct way, have place,—the probable number of these instances is not very great. Why? Because in this case the receiver must put himself in the power of the giver: and because a proposed giver will not, without such a sum in his hands as will (he thinks) suffice to outweigh the fear of the risk in the mind of the judge, incur the risk of being delivered over to punishment by that same judge.

4. In a direct way in the shape of money, small indeed, comparatively speaking, is the probability, that, on the part of an English judge, corruption should have place. Why? Because, so far as concerns reputation,—by a judge, a bribe could not be received in a direct way without his putting himself, as above, in the power of the bribe-giver. But, indirect ways there are, in which no such danger has place:—where, for example, it is not the judge, but a connexion of the judge’s, that receives the benefit in question;—and that from a connexion of the party; especially if it be in the shape—not of money, but, for example, of a lucrative office, or a lucrative bargain.

5. Note here, that on the part of a judge, as on the part of any other man,—where, in this or any other shape, misconduct has place,—the amount of the evil in all shapes taken together being given, it matters not what has been the motive. In the case of a judge,—besides self-regarding interest in respect of money or money’s worth at the hands of individuals,—temptations to the operation of which his probity stands exposed, are—self-regarding interest in respect of desire of the matter of good in that and other shapes, at the hands of government, together with sympathy, and antipathy as towards individuals or classes of any sort,—on whatever account—private or public. Now then—to corruption,—(if corruption is the name to be given to misconduct otherwise than from blameless misconception)—to corruption in the retail mode, from all these sources, the probity of the judge stands more or less exposed,—in all countries, and in all judicatories. Why? Because, by all these efficient causes, misconduct, in any shape, may, on the part of a functionary, in that as in any other situation, be made to have place, without need of intercourse with any other individual; and this, unless circumstantial evidence be received as sufficient, without possibility of its being, for the purpose of censure, proved either in a legal tribunal, or even in the tribunal of public opinion.

6. Thus it is, that, in respect of corruption, carried on by functionaries in all situations in the retail mode, England is not much otherwise than upon a footing with other countries: while, in respect of the corruption trade, carried on by judges in the wholesale way, as above, she is altogether unrivalled.

7. Without any the smallest fear of punishment,—without even any considerable fear, if any at all, of any such disrepute as he is capable of being influenced by,—an English judge, on a question in which the ruling one or the sub-ruling few are supposed by him to take an interest, may commit injustice to any amount in favour of that side: without danger of any such disrepute, for two reasons:—1. Because, at the hands of all with whom he is in the habit of passing his time, or is in any particular way connected,—instead of disapprobation, approbation is the sentiment he will make sure of experiencing; 2. Because, in the situation of a judge,—partiality in favour of that side is so general, not to say universal, and is the result of influence notoriously so irresistible, that, on the part even of those who suffer by it, slight is the degree of disapprobation which it calls forth: a mere nothing in comparison of that which would have place, if it were by hard money, to the same value, that it was produced.

8. In the case of an alleged libel, for example, against a government functionary, as such,—what man is there that ever expects, that the chief-justice will fail to do his utmost to procure the conviction of the alleged libeller?—or, on the prosecution of a justice of peace, to screen him from punishment? If indictment be the mode, the jury will be directed accordingly; if information, the impunity will, as far as possible, be conferred at an earlier stage:—the rule will be refused: the established maxim about motives—(no conviction without proof of a corrupt motive)—being of itself equivalent to a statute law granting impunity to every abuse of power on the part of every individual placed in that same office. A justice of peace, supposing it possible that punishment be his desire, would not be indulged with it: for, by the example of his punishment, delinquency on the part of others—4000 and more, acting in that same office—might be more or less checked: not to speak of official men, in other offices, whether below him, on a level with him, or even above him. In as far as in that office a man is deterred from abuse of its powers—it is by fear—not of conviction (a disaster to which he does not stand exposed) but of prosecution; to which, whatsoever can be done for him, he cannot but remain exposed, at the hands of any such adequately opulent individuals, in whose breast resentment has so far got the upper hand of prudence.

9. As to incorruptibility and independence,—under Matchless Constitution, every judge is, on every occasion, acted upon by that same matter of corruption, of which the fountain springs from behind the throne: he alone excepted, who for himself has nothing to wish for, nor has relation, friend, or enemy. What then, but either deceiver or deceived, can any be, by whom, in the situation of an English judge, any such quality as independence is said to have place?

Two laws—made, both of them, by these same judges who “never make any law,”—two laws—either of them, much more both of them together (not to speak of the fullest assurance at the hands of legislators, of which presently,) suffice to keep banished from the mind of an English judge, all apprehension of punishment, in any shape, for anything done in the exercise of his power. One is—that which enables a public man, to whom misconduct is imputed, to bring down punishment on the head of the imputer, without exposing himself, on that occasion, to any such unpleasant accident, as that of hearing the truth of the imputation proved, out of the adversary’s, or any other mouth: the other is, that which preserves him from the still more unpleasant accident of hearing it proved out of his own mouth.

Where the procedure is by information, true it is—that, in some instances, the court has refused to grant what is called the rule (namely, the rule by which it is suffered to go on,) without an affidavit denying the truth of the imputation. But, for preserving an oppressed complainant from being punished instead of the oppressor, what would this practice do, were it ever so sure to be adhered to? Just nothing. Whether any judge, whose pleasure it has been to receive a bribe, will have received the bribe-giver, with a third person in his hand, to bear witness of the transaction, may be left to be imagined: and, without such third person, the evidence of the bribe-giver will go for nothing; for, forasmuch as to conviction in case of perjury, two evidences are made necessary, a licence is thereby granted to every person to commit perjury, wherever no evidence, in addition to the testimony of one witness, has had place.

But, suppose an extraordinary case: similar or other evidence, not only in existence but obtainable, on the strength of which it is possible that conviction may take place: how stand the relative situations of the parties? Against conviction of the doubly guilty functionary, guilty of the original oppression or depredation, guilty of the perjury committed for the purpose of transferring all punishment from the injurer to the injured, the chances are several to one: while, to the oppressed or plundered accuser, or other prosecutor, punishment is applied to a certainty: punishment, that is to say, pecuniary punishment, and this to an amount not ascertainable beforehand; but frequently not less than some hundreds of pounds. True it is, that, in this case, not punishment but costs is the name given to it: but whether, by this change of denomination, any abatement be made in the suffering produced by the thing denominated, may be left to be imagined.

True it is again—a mode there is, in which, if a judge, or any other functionary, or any other person by whom oppression, depredation, or any other crime, has been committed, wishes to see it exposed to public view,—he is at liberty to put in for the indulgence: this is the mode by action: for in this case the alleged libeller—the defendant—is left at liberty to prove the truth of the imputation; which, if he does, the criminal, whose guilt has thus been proved, obtains no damages, and perhaps pays costs. But, somehow or other, a desire of this sort is not very commonly entertained.

Not that in all cases the guilt of the prosecutor is thus demonstrated by the mode of prosecution chosen by him. For where, as in the cases of indictment and information, the suit is of that sort in which punishment is applied under the name of punishment, to the author of the injury,—and no compensation given directly and avowedly to the sufferer by the injury,—in this case, the testimony of the sufferer is admitted; and not only so, but as capable of being taken for sufficient, without corroboration from any extraneous evidence. But, in the case in question, extraneous evidence, and that adequate, never can be wanting. It is given by every man, by whom a copy of the alleged libel has been purchased.

Accordingly, if any such criminal act is imputed to a man: to any man, and in particular to a judge,—he will proceed by one sort of suit or another, according as he is guilty or not guilty. If not guilty, he proceeds by action: if guilty, he proceeds by indictment or information; by information—either in the ordinary way, or by information in the ex officio way: in the ex officio way, that is to say, by the mere act, if obtainable, of the attorney-general, without application for leave, made in public, to the court. This being the case,—if it be in any one of these three last-mentioned ways that he proceeds,—to what a degree he exposes his character to suspicion, not to say gives it up, is sufficiently obvious.

SECTION II.

OTHER SOURCES OF OPPOSITION TO LAW REFORM.

1.If it be of use, that, in the situation of udge, the opposition of interest to duty under the existing system should be held up to view,—not less so can it be in the case of those, by whom the conduct of all judges is determinable.

2. On this occasion may be seen two conflicting interests, by which the minds or legislators are everywhere operated upon: legislators, and the ruling few in general: to which class belong of course the judges; whose case comes, on this account, a second time under consideration; of these same conflicting interests, the one acting in accordance with the official duty, the other in opposition to it.

3. First, as to duty in respect of the main end of justice: namely, maximization of the execution and effect given to the several existing laws, by whomsoever made. To the legislator for the time being, if to anybody, belongs assuredly this duty, in the character of a moral duty: necessary to the fulfilment of which (as there has so often been occasion to observe) is prevention, not only of misdecision, but of non-decision, where, and in such sort as, decision is necessary to the production of that same effect: so likewise in respect of the collateral ends of justice; namely, minimization of expense, delay, and vexation.

4. Thus much for duty. But, as to interest, unfortunately, in the breast of the legislator, as well as in that of the judge as such,—against that interest which is in accordance with duty, fight other interests which stand in opposition to it. Interests in accordance with duty, those which belong to him, in common with all other members of the community; interests in discordance with and in opposition to duty, all those which, being peculiar to the few, cannot be promoted but at the expense of those of the other members of that same community; in a word, of the subject-many.

5. So much for conflicting interests: now for law. In the aggregate body of the laws, some there will always be, by which the promotion of the interests of both sections—that of the subject-many, and that of the ruling few—will have been endeavoured at, and in a greater or less degree compassed: others again there will be, by which the interests of the ruling few will be promoted, or be endeavoured to be promoted, at the expense of those of the subject-many: others again by which the interests of the subject-many will be promoted, or be endeavoured to be promoted, at the expense of the particular interests, or supposed interests, of the ruling few.

6. So much for legislators at large. Enter now in conjunction such of them as are lawyers, and lawyers at large, official and professional, both in one, and professional at large; looked up to, all of them, by legislators as their advisers. These being the only persons, who can so much as profess to have any general acquaintance with the law as it is,—thence it but too naturally comes to pass—that, as often as any proposal for the melioration of the system is brought forward,—the opinion by them declared is, as of course referred to, as that on which the determination respecting acceptance or rejection shall be grounded. But, it being in the highest degree their interest that it shall be in a state as opposite to the interest of the people, in respect of the above-mentioned ends of justice, as possible,—and, whatever it be, as little known as possible,—of course, so it is, that supposing any such change proposed, as affords a promise of rendering it conformable to the ends of justice, whatever knowledge each man possesses is applied—not to the promotion, but to the prevention of it; prevention of it—by any means and in any way; in an open and direct way, or in a disguised and indirect way; in particular, by the promotion of such narrow improvements, apparent or even real, so they be—either by unadaptability, or by their narrowness and the consequent length of time requisite for their establishment,—obstructive of all adequate as well as beneficial change.

7. Accordingly, when a plan has been brought forward, having for its object the establishment of an all-comprehensive, uniform, and self-consistent rule of action,—conducive, in endeavour at least, in the highest degree possible, to the happiness of the whole community, taken together,—and this at the earliest time possible,—little less than universal have been the anxiety and the conjunct endeavour to frustrate its design. For this purpose, silence, being at once the most commodious, and the most efficacious, has been the means generally resorted to: the most efficacious; forasmuch as by declared opposition, attention would be drawn to the subject, and to the validity of the arguments in favour of the plan; and the futility of the ablest and strongest arguments capable of being brought against it, would be the more extensively perceived.

8. Hence it is—that, under the existing system—while, on the part of judges, not only acts of wilful omission to give execution and effect to the law have place, but acts are committed, by which the authority of the will declared by the legislature is avowedly overruled,—so perfectly undisturbed is the tranquillity manifested by legislators. In cases, in which no particular detriment to the particular interests of the ruling few is perceptible, as plenary as can be wished is the indulgence: in these cases, these hired servants of the law are left to obey it or break it, as is most agreeable to them.

9. Parliament enacts one thing: equity rules, or acts, the opposite thing. The Earl of Mansfield, ablest as well as most zealous absolutist that, since the aristocratical revolution, ever sat upon an English bench,—had for use a word admirably adapted to this purpose. According to him, statutes, singly or in any number, were, on each occasion, to be taken in hand and moulded.

10. Thus, on a common-law bench: and, in equity, the Earl of Eldon, though without the use of the word, was not backward in declaredly following the example.* As for apprehension, no very strong sensation of this sort could reasonably be entertained, by a Lord Eldon, sitting in his court of equity, of the same Lord Eldon sitting in judgment on his own conduct in his House of Lords. Now, for above these four years, has indication of this mode of ruling, by vigour, over the law, been before the eyes of the public. There it is; and who cares? Just as much the Tories out of place as the Tories in place.

11. Connected with this prominent and undeniable interest, may be seen another particular and sinister interest, which, though so much less extensively shared, will, by its latentcy, and the consequent appearance of disinterestedness, naturally operate, in the sinister direction, with still greater force. This is the interest of the ex-lawyer. Interest affected, and feared for, by the lawyer in office or practice, pecuniary interest: interest affected, and feared for, by the ex-lawyer, interest created by regard for reputation, reputation of appropriate wisdom. Well-grounded altogether is this fear, it must be confessed: for, proportioned to the acknowledged beneficialness and extent of any such beneficial change, will be sure to be the real folly which has all along been covered by the veil of apparent and boasted wisdom. Occupied—first in the study of this system, then in the acting under it, and all along in the magnification of it, the labour of a long life,—and now, after all, and all at once, a compound of mischievousness and absurdity is found to be the character of it! What a shock to vanity and pride!

12. Not merely in proportion to the change effected, but as soon as the change is determined upon, will the sad sensation be produced. Ill-gotten wealth and power excepted, all that the great man has been accustomed to be valued upon, or to value himself upon, vanished!

13. In the train of these sinister interests, come interest-begotten prejudice, and authority-begotten prejudice. But of these sources of opposition to whatsoever is at once useful and new,—in one place or another, so continually recurring, has been the need,—and, with the need, the act,—of making mention,—that every further mention of them here may well be spared.

14. Such being the exposure made of the opposing causes: now for its practical uses. Uses of it may be seen two:—One is, showing, that, taking the existing system all together, no proof of its fitness to exist is declarable from its having thus long been in existence.

15. The other use is—showing, that against no one distinguishable article of the hereproposed system, or of any proposed system,—to any declared opinion of any individual belonging to any one of those same classes, so far as it seeks to operate in favour of the existing system, should any weight be attributed—any regard be paid. On the contrary, it should be looked upon as an argument in favour of that system to which the opposition is made: in favour of it, and for this reason. With this subject, as with every other, the better acquainted a man is, and the greater his appropriate ability, the better able will he be to bring forward whatsoever relevant arguments in support of his declared opinions the nature of the case affords: and the stronger the reliance placed by him on the effect looked for from his mere opinion, the stronger the evidence of the consciousness of the depravity of the system, and the weakness of all arguments producible in favour of it.

16. To conclude. In this state of things, if, from the pressure of the enormous and perennial load of misery, from which relief is hereby endeavoured to be obtained, any such relief is to be expected,—it must be at the hands of one or other of three distinguishable descriptions of men in the situation of legislators: one, in which a sense of moral duty has place, and that same sense strong enough to constitute an effective cause of action: another, that to which it appears that its own particular interest is so bound up with the general weal, as to have more to gain than to suffer, from the substitution of the good system to the bad one: the third and last, that in which a salutary fear, in sufficient strength, has place: the fear, lest, wearied by the oppression, and enlightened at length by the information received, as to the causes and the authors of it,—the subject-many should, in sufficient number, concur in doing for themselves what ought to have been done for them, and in so doing cease to exhibit that compliance, by, and in proportion to which, all power is constituted.

Still, before this Supplement is concluded, a few more articles, particularly the fifth and last of them, may, it is hoped, be found not altogether without their use. As to the third and fourth, exhibiting impunity given to murder, and right trampled upon—both without the shadow of a reason—the practice is of such continual occurrence, that these instances of it would not have been inserted, but that, at the moment of sending off the matter to the press, the memorandums made of them happened to present themselves to view.

1.

Applying to Device III.—Written Pleadings worse than useless, necessitated.

From the Examiner for 30th November 1828:—“An action has been brought against the ‘select’ (of St. Giles’s and St. George’s, Bloomsbury) to try their title; £200 were therefore abstracted from the funds raised for the support of the poor, and thus stimulated, his (the solicitor’s) industry was extraordinary, for he put in fifteen special pleas covering the surface of 175 folios! On Tuesday-week, however, the Court of King’s Bench reduced the number more than one half,* and thus the select have incurred personally the needless and vexatious expense to which they resorted for obvious purposes.”

2.

Applying to Device V.—Oaths, for the establishment of the Mendacity System, necessitated.

From the Windsor Express, August 2, 1828:—“At the Manchester quarter-sessions, a woman was arraigned for stealing a shawl from a child in the street. A little boy was brought forward to give evidence of the fact; instead of being suffered to do this, however, the chairman examined the child as to certain theological doctrines. After the child had said he knew it was a bad thing to tell lies, the chairman said, do you know what becomes of those who tell lies? ‘No, I don’t.’ Chairman: ‘Do you ever say your prayers?’ ‘Yes, I said my prayers once.’ Chairman: ‘And what prayer was it you said?’ ‘I said Amen.’ Upon this the chairman refused to receive his evidence, and the woman was set free.”

3.

Applying to Device XI.—Decisions on grounds avowedly foreign to the Merits—Exemplification of the Crime-licensing System.

From the Windsor Express for July 19, 1828:—“At the present Berkshire assizes, a woman was charged with murdering her child by wilfully suffocating it. Before any evidence, counsel submitted that the woman must be acquitted of this murder, because at the coroner’s inquest, the name of one of the jurors was stated to be Thomas Winter Borne, instead of Thomas Winter Burn.

“Mr. Baron Vaughan—‘I cannot hold that Borne and Burn are the same name, and I am clearly of opinion that this objection puts an end to the case.’ The prisoner must be discharged.”

“Another case occurred on Tuesday in the King’s Bench. Fisher v. Clement. It came out during the trial that the defendant, who had been found guilty in the Common Pleas, was allowed a venire de novo by the King’s Bench, because in one of the counts in the declaration, the words ‘of and concerning’ had been omitted.”

4.

Applying to Device XIV.—Groundless Arrest for Debt.

From the Examiner of 11th January 1829, page 28:—“The rules embrace a suburb, immediately adjoining the King’s-Bench prison, of a circumference of about from two to three miles, and containing about six miles of open roads and streets. This advantage to debtors is somewhat similar to that accorded to prisoners of war on their parole d’honneur, with the exception, that, in this instance, the law fixing the marshal for the debt of his prisoner whenever the latter shall be found without the limits of ‘the rules,’ that officer very properly takes care to receive sufficient security. It is by the privilege of granting ‘the rules’ to prisoners, that the marshal realises the greater portion of his income, which is said to amount in the gross, to from £10,000 to £20,000. The charge for the rules is in proportion to the amount of the debt, the rate demanded being £8 for the first, and £5 for every other £100 of the detainers lodged against a prisoner. The bonds are also prepared in the marshal’s office, and leave their profit in his pocket.—King’s-Bench Gazette.”

The patronage of this office, whatever may be the emolument of it, being in the hands of the chief-justice of the King’s Bench, as the patronage of a living is in the hands of the proprietor of the advowson; and it being thus his interest, that oppression and depredation, at the charge of men thus under affliction, should, in proportion as any increase in the amount of the emolument is the result, be screwed up to the highest pitch possible,—these things considered, what regard can be due to the ipse-dixit authority of anything which, by a man in such a situation, is ever said in favour of the existing system, may be left to be imagined.

5.

Applying to Device XIII.—Jurisdiction split and spliced: Abridged Petition, article 262.

Not by any means a matter of indifference is, in this case, the appellation employed. To many a functionary, by whom, as such, the power of a judge is exercised, the appellation of judge is not wont to be applied. Instance, a justice of the peace. Mind now the advantage taken of this circumstance, for the never neglected purpose of excluding, from the practice of judicature, the light of publicity, and thence the only check, to which in various situations—and more especially in that of a judge who is styled judge,—power, otherwise completely arbitrary, stands exposed. Speaking of the judicatory of the sort of judge styled a justice of the peace, in the cases in which he acts, or may act, without any other with him,—so shameless have been judges of the sort styled judges—to such a degree shameless, as to declare—that it is not a court of justice: and that this being so, he who presides is not under the obligation of carrying on the business otherwise than in secret. Is not a court of justice? What then is it? A court of injustice? This it must be, if anything; unless between the one and the other a medium can be found.

Other instances have been afforded by the sort of judge styled a coroner, who presides in the judicatory styled the coroner’s inquest. To what purpose, unless it be that of sharing in the privilege of giving impunity to past, and thereby encouragement to future murder, possessed and exercised, as above, by judges styled judges?

Behold here an example, of the way in which the judge-made law styled common law is made. King, Lords, and Commons, altogether, would they dare do any such thing?

6.

Applying to almost the whole constellation of Devices.

Under the Mosaic code, justice was administered at the city gates. Why at the gates? Even because there was the greatest affluence of passengers: affluence—not of paid, but of gratuitous observers, and thereby inspectors, on the principle above submitted to the Honourable House. Of factitious expense or delay, in no shape, under that system, is any trace visible. Exclusion of parties from judges’ presence—unintelligible-language—useless written instruments—subornation and practice of lying—cessation of judge’s service for six months and twelve months together—blind fixation of times for judicial operations—mechanical, substituted (as hath been seen) to mental judicature—useless transference in bandying: add—transference of suits from judicatory to judicatory—decision on grounds avowedly foreign to the merits—jurisdiction, when it should be entire, split and spliced,—of any one of all these abominations, not a vestige visible.

Whence, now, this difference? Whence, but that the God of Moses was the God of Justice; the God of Judge and Co. the Demon of Chicane.

7. October the 3d, 1829: one more last word: facit indignatio verbum—indignation, called forth by the occurrence of the moment, has produced it. But, the very last word this must be: for, if the like cause were constantly productive of this same effect, never would this publication find its close.

8. Two guineas for one minute occupied in bearing a part in the useless and mischievous ceremony—the swearing ceremony! Fees to this amount extorted by a Master (ordinary) in Chancery, for a business, which, by a solicitor arrayed in the title of Master Extraordinary, is done for half-a-crown! Five guineas to the same extortioner for the bare receiving of a paper styled an answer: besides travelling expenses for a useless journey of from six to twenty miles.

9. Plunderage, to these amounts, extorted, or endeavoured to be extorted, from paupers, whilst in prison!—in prison,—during life. And for what? For no less a crime (it is true) than that of rebellion. But, the proof of it is—what? No other than the inability to pay costs: the costs, all factitious; tares, sown by the demon of chicane; crops, for the sowing and gathering in of which, the courts of iniquity, so miscalled courts of equity, are kept on foot.

10. Of this same eventually intended life imprisonment, in one case seventeen years already passed. Of this case, with six other similar ones, the disclosure produced by a visit to the Fleet prison; namely, the visit, forced from the foremost of the anti-codificationists, and anti-reformists in all shapes, in Honourable House—the new solicitor-general—imported into it, with his minute scraps of reforms and sham reforms, for the special purpose of keeping the door shut against all adequate ones.

11. Behold the letter written by him—written to one of the victims of the oppression: giving him the assurance, that it would be “his own fault” if he continued to be thus oppressed. Behold in this letter a genuine English lawyer’s sermon, on the text—“I was in prison, and ye visited me.”

12. “Woe unto you, lawyers! for ye have taken away the key of knowledge: ye entered not in yourselves, and them that were entering in ye hindered,” Luke xi. 52. Read this, ye anti-codificationists!

13. “Woe unto you also, ye lawyers! for ye lade men with burdens grievous to be borne, and ye touch not the burdens with one of your fingers.” Read this, ye fee-fed delayers deniers, and sellers, of what ye call justice!

14. The power, given to judges by Lord Eldon and Mr. Peel—the power of imposing, on the indigent and already afflicted, taxes without stint, putting the produce into their own pockets—this power has already been over and over again held up to abhorrence; and, on each occasion that seems favourable, will be so again, as long as any blood remains in the hand which gives motion to this pen. Of the purpose and use of the creation and preservation of this power, this case presents an exemplification. And this is called government!—and this is called justice!

15.Rebellion, forsooth? “Durumest,” says a maxim of their own—Oh yes!—durum enough—durum est torquere leges, ad hoc, “ut torqueant homines.”

• To torture men, the tyrant words distorts:
• These are the fee-fed lawyer’s cruel sports.

16. Of these sham convictions of rebellion,—if persevered in, with the practical consequences deduced from them,—what more apposite requital than a real and successful one?*

PETITION FOR CODIFICATION.

THE PETITION OF THE UNDERSIGNED,

Humbly Showeth,—That, in so far as our respective consciences will allow, we entertain the sincerest disposition to conform ourselves in all things to the good pleasure of those who are set in authority over us.

That when, by any of us, a wish is expressed to know what that pleasure is, he is bid to look to the law of the land.

That, when a man asks what that same law is, he learns that there are two parts of it: that the one is called statute law, and the other common law, and that there are books in which these same two parts are to be found.

That, when a man asks in what book the statute law is to be found, he learns that, so far from being contained in any one book, howsoever large, it fills books composing a heap greater than he would be able to lift.

That, if he thereupon asks, in which of all these books he could, upon occasion, lay his hands, and find those parts in which he himself is concerned, without being be wildered with those in which he has no concern,—what he learns is—that the whole matter is so completely mixed up together, that for him to pick out the collection of those same parts from the rest, is utterly impossible.

That, if he asks in what book the common law is to be found, he learns that the collection of the books in which, on each occasion, search is to be made for it, are so vast, that the house he lives in would scarcely be sufficient to contain it.

That, if he asks who it is that the statute law is made by, he is told, without difficulty, that it is by King, Lords, and Commons, in Parliament assembled.

That if, in continuation, we proceed, any of us, to ask who it is that the common law has been made by, we learn, to our inexpressible surprise, that it has been made by nobody; that it is not made by King, Lords, and Commons, nor by anybody else: that the words of it are not to be found anywhere: that, in short, it has no existence; it is a mere fiction; and that to speak of it as having any existence, is what no man can do, without giving currency to an imposture.

When, upon observing that, by every judge, it is spoken of as a reality, and that he professes to be acting under it, we ask whether it is not he that makes it? we are told, that this is what no judge ever does, and that, by any of the learned judges, a question what part of the law is of his making, would be received with indignation, and resented as a calumny.

That when, seeing men put to death, and otherwise grievously punished by order of judges, a man asks by what authority this is done, he learns that it is by the authority of statute law or common law, as it may happen: and if he thereupon asks whether, when it is upon the authority of the common law that the judge does this, it is not by this same judge that this same common law is made, he still receives the same assurance—that no judge ever makes law, and that a question what part of the law is of his making, would be received with indignation, and resented as a calumny: while the truth is—that, on each occasion, the rule to which a judge gives the force of law, is one which, on this very occasion, he makes out of his own head: and this—not till the act for which the man is thus dealt with has been done: while, by these same judges, if the same thing were done by the acknowledged legislature, it would be spoken of as an act of flagrant injustice, designated and reprobated, in their language, by the name of an ex post facto law.

All this while, we are told that we have rights given to us, and we are bid to be grateful for those rights: we are told that we have duties prescribed to us, and we are bid to be punctual in the fulfilment of all those duties; and so (we are told) we must be, if we would save ourselves from being visited with condign punishment. Hearing this, we would really be grateful for these same rights, if we knew what they were, and were able to avail ourselves of them: but, to avail ourselves of rights, of which we have no knowledge, being in the nature of things impossible, we are utterly unable to learn—for what, as well as to whom, to pay the so-called-for tribute of our gratitude.

As to these same duties, we would endeavour at least to be punctual in the fulfilment of them, if we knew but what they were; but, to be punctual in the fulfilment of duties, the knowledge of which is kept concealed from us, is equally impossible. That which is but too possible, and too frequently experienced by us, is the being thus punished for not doing that which it has thus been rendered impossible for us to do.

Thus, while the rights we are bid to be grateful for are mere illusions, the punishments we are made to undergo are sad realities.

Finally, thus it is that we, who, in so far as such oppression admits of our being so, are his Majesty’s dutiful and loyal subjects, are dealt with as were the children of Israel under their Egyptian taskmasters.

We hear of tyrants, and those cruel ones: but, whatever we may have felt, we have never heard of any tyrant in such sort cruel, as to punish men for disobedience to laws or orders which he had kept them from the knowledge of.

We have heard much of cruelties practised by slaveholders upon those who are called their slaves. But, so far as regards the mode of treatment we thus experience,—whatever be the cruelties practised upon them, never have we heard this to be of the number of those cruelties. The negro, so long as he does what he is commanded to do, and abstains from doing that which he is forbidden to do—the negro—slave as he is, is safe. In this respect, his condition is an object of envy to us, and we pray that it may be ours.

We have heard not a little of the pains taken by the Honourable House, in the endeavour to put an end to those same cruelties. We cannot refuse to any such endeavour the humble tribute of our applause. But we hope we are not altogether unreasonable in our wish to receive, from the hands of the Honourable House, the benefit of the like endeavours.

That which, for this purpose, we have need of (need we say it?) is a body of law, from the respective parts of which we may, each of us, by reading them or hearing them read, learn, and on each occasion know, what are his rights, and what his duties.

The framing of any such body of law cannot indeed but be a work of time. This is what we are fully sensible of. But the sooner it is begun, the sooner will it have been completed: and the longer the commencement of it is deferred, the more difficult will be the completion of it. Completed, indeed, it cannot be; and of this too we are fully sensible, otherwise than by the King and the Lords, in conjunction with your Honourable House. But, to the taking in hand this most important of all works, there is a preparatory operation, which, we have been assured, and verily believe, is within not only the power, but the practice of the House—of the House acting in its single capacity, and by its sole authority. This is what we hereby pray for, and it is as follows:—

1. That the House, in and by its votes, may be pleased to give invitation to all persons so disposed, to send in, each of them, a plan of an all-comprehensive code, followed by the text thereof; this text, either the whole of it at the same time, or in successive portions, as he may find most convenient.

2. That, for indemnifying each such contributor from the expense of printing, the House may be pleased to give authority to him to send in such his work, in manuscript, to any person authorised by the House to print its proceedings: that is to say, for the purpose, and, subject to the limitation hereinafter mentioned, under the assurance that the same will be printed, along with the other proceedings of the House, in like manner as acts of parliament are at present.

3. As to the persons of such contributors, we humbly insist, that, from the liberty of sending in draughts for this purpose, no person should stand excluded. No; not any person whatsoever. For suppose, for example, a foreigner to send in a draught better adapted to the purpose than any draught sent in by any of his Majesty’s subjects,—we see not why his being so should debar us from the benefit of it: and assuredly we see not any reason whatever for any such apprehension, as that, by the Honourable House, the circumstance of the draughtsman’s being a foreigner should ever cause a less well-adapted draught to be employed and sanctioned, in preference to a better adapted one.

4. As to the expense that might be eventually attendant on the printing of such draughts, it is no more than we are perfectly aware of. But there are two arrangements, which, taken together, we cannot but rely on as sufficient to reduce within a moderate compass the amount of that expense.

5. One is, that it be an instruction to every contributor, that no such contributor shall receive the benefit of the accommodation thus afforded, unless, to each article or set of articles in his proposed code, the reason, or set of reasons, by which it was suggested, on which it is grounded, and to which it trusts for its explanation and reception, be appended.

6. The other is—that, by the Honourable House, power be reserved to itself, by the hands of any person or persons for that purpose, thereto appointed,—to put a stop at any time, to the printing of any such draught: after which, should the impression be continued, it will be at the contributor’s own expense. But that, to assist him in the faculty of thus making a virtual appeal to public opinion, such part of his draught as shall have been already printed, shall be delivered to him, to be disposed of as he shall think fit.

As to the obligation of attaching the abovementioned rationale, we trust to it as a powerful incentive, to the framing and sending in well-grounded draughts, as well as a powerful instrument for keeping the service unincumbered with ill-grounded and [Editor: illegible word] ones. To frame a proposed code [Editor: illegible word] [Editor: illegible word], with apt reasons all along for its support, is, in our eyes, the most arduous, as well as the most useful, of all purely human tasks that the human faculties can employ themselves upon: and, proportioned to this our persuasion, is of course our desire—that, without any exception, the door should remain open to all contributors, as above: while, on the other hand, to frame proposed laws, destitute of such support, is what no hand that can give motion to a pen would feel to be out of its power: it is what not we alone, but our mothers and our grandmothers likewise, would be capable of doing, and might peradventure be disposed to do: and it is (we have sometimes heard) no altogether uncommon sight, to see hands, little better qualified, thus occupied.

To each such contribution should be attached a name and address: this, not for the purpose of determining the authorship (for that might be left to each one’s desire,) but for the purpose of responsibility, in the case of any inapplicable matter, sent in for the purpose of derision, by persons engaged by sinister interest in the endeavour to render the measure abortive.

As to remuneration, we humbly insist that none,—in any shape other than that of the eventual honour of distinction and public approbation, with the benefits which in so many shapes, in amounts proportioned to the degrees of it, cannot but be among the fruits of such approbation,—ought to be allotted to any work so sent in: so far from promoting, any such remuneration could not but operate in counteraction to its proposed object, as above. It would operate as a notice of exclusion, to every man who could not regard himself as situated within the sphere of personal favour; and, the higher the reward, the greater would be the number of those who would regard themselves as thus excluded.

We beg to be believed, giving as we do our assurance to the Honourable House, that it is not to any such purpose as that of seeing so much as proposed, much less effected, any change in the hands, in which the supreme power of government is lodged, that this our humble petition is directed; and accordingly what we not only consent to, but wish and desire is, that, out of the field of the proposed otherwise all-comprehensive code, all those parts which regard the prerogative of the King, the privileges of the several Members of the two Houses of Parliament, collectively and severally possessed, and the consideration of the hands in which the elective function is placed, be excepted; unless it be—that, for the sake of symmetry and completeness, expression be, on those several subjects, given to the law as it is, or is conceived to be: it being understood that, by the expression so given to matter of this description, the draughtsman is not understood to express either approbation or disapprobation, in relation to any part of it.

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.

BY JEREMY BENTHAM.

first published in [Editor: illegible word]

BOA CONSTRICTOR, alias HELLUO CURIARUM.

SPEECH of Lord Chancellor Brougham, as printed in the Morning Chronicle of Friday, September 2d, 1831, in the Article headed Court of Chancery, on announcing his “resolved on” absorption of the Courts of the Vice-Chancellor and the Master of the Rolls into that of the Lord High Chancellor.

The Lord Chancellor sat this morning to deliver the few judgments which remained to be pronounced on matters which had been previously argued before him; and having disposed of them,

His Lordship addressed the Bar to the following effect:—“It is a great satisfaction to me, in taking my leave of the Bar and of the suitors, to know that I have been able to dispose of all the arrears of the business of this Court, and that there are no appeals unheard, no petitions unanswered, and no causes now unheard, except those which are not ready, and which have been put upon the files of the Court subsequent to last June. It is a very great relief to the Court—it will be a very great relief to the Bar—it will be a very great relief to professional men, as I know it will be a very great relief to the suitors—for them to feel that they shall have their business henceforward going regularly on, not incumbered by arrears, and not having their minds oppressed with the harassing prospect of never getting through their business. In the course of next term, the benefit of all this will be felt, and it will be found that the time has been well bestowed which we have been lately occupying, though it may have pressed hard upon the Bar, upon suitors, and upon other professional men, who have been anxiously attending the Court. It has pressed hard also on the Court, but I have been willing to bear that pressure, knowing well that the public will feel the full benefit next term. It was said to a great man, the most illustrious of all my predecessors, that he allowed the pressure of business upon him to be more than he could bear; to which he replied, ‘The duties of life are more than life:’ memorable words, to be had in everlasting remembrance by all men who serve their country! The kindness and attention I have received from the Bar are such as to require my most grateful acknowledgments, which I now respectfully offer. I beg leave to add, that I have now the most sanguine hopes of being able to relieve his Honour the Vice-Chancellor from hearing the greater part of causes, such as those which have been heard by him since the year 1813. The appeals which I have disposed of within these few months have been 120: of those, 108 have been fully argued and decided—indeed all of them, except Miller v. Travers, which stands for the opinion of the two Judges who assisted me in it. The time taken in the arguments upon the appeals (the average time being several hours to each) shows that every one of them were cases of importance, and that there has been no short cause heard by way of appeal before me. This has been the cause of the length of time that has been occupied in getting through the long and heavy arrear—the arrear of years. When I look into this statement, I find also, that in the proportion of six to four, or of three to two, are the number of appeals from his Honour the Vice-Chancellor to those coming from his Honour the Master of the Rolls—arising, no doubt, from the great number of causes decided in the Vice-Chancellor’s court, and from that circumstance only. It is clear, therefore, that at least three months of the time of this Court would have been entirely saved, if that arrangement could have been made, which (foreseeing this) I propounded, but unsuccessfully propounded, when I came into the Court. I thought that every cause which was either of some importance in point of value, or difficulty in point of law or of fact, that came before their Honours the Master of the Rolls and the Vice-Chancellor, almost inevitably found its way here by appeal—and generally, certainly in the majority of cases, only led to great expense, great delay, and great inconvenience, whether there should ultimately be an affirmance or reversal. I proposed, therefore, that all causes of difficulty and importance in point of value, or from the law as applyingto them, should at once be transferred here, and heard by me, as thereby the inevitable appeal would be averted. The event has justified my prospective conjecture, and leads me now to form the plan which I shall certainly adopt—namely, that of transferring at once the bulk of that business into this Court. Such a result was long ago foreseen by eminent men. It was the opinion of Sir Samuel Romilly—a most venerable name—it was the opinion of Sir John Leach, then a member of parliament, and of many others, that the erection of a Court for his Honour the Vice-Chancellor would have, among other things, the effect of increasing litigation; and that a mass of business, which did not then exist in Chancery, would be added to the business of the Court. How far that conjecture has been proved by experience, must be visible to all men; since 64 out of the 108 contested appeals were from his Honour the Vice-Chancellor, and have taken up three months constant, laborious, and expensive attendance to all the parties concerned. If, however, that arrangement can be made, which I look forward confidently to accomplishing, I shall then deem it to be my duty to give to the suitor the full benefit, in all difficult and important cases, of having three judges instead of one to hear their causes. If this cannot be done by the law as it now stands, I trust the Legislature will assist me in effecting it. My opinion is, that it can be done without altering or adding to the law as it now stands. I have the power at present to ask for the attendance of any or all the judges in Westminster Hall, and I know not why I should not have the power of asking to be assisted by the presence of the Master of the Rolls and Vice-Chancellor, when necessity requires. Other Chancellors have had the Master of the Rolls to sit for them when absent; I have never required that, and I trust I never shall; but I think I may have the assistance of their Honours, on hearing causes of extraordinary difficulty and importance. The bulk of the cases that are appealed from are not of extraordinary difficulty or importance; but, in all cases of that class, the suitor shall have the benefit of the other Equity judges being present. There are two or three branches of judicature in which the presence of three judges is infinitely better than that of one: first, when conflicting facts are to be discussed, or conflicting evidence to be heard, a jury is the best forum for such a case—a single judge is perhaps the worst; but three men, with minds variously constituted, are much more likely to come to a satisfactory conclusion than a single individual. The next is, where anything like discretion is to be exercised, either in awarding damages, or saying what costs are to be paid, which is often a very important, or not unfrequently difficult and delicate inquiry, as too many cases are brought and kept up merely for the sake of the costs. The duty of the judge there is somewhat like that of assessing damages; and in the exercise of such discretion, it is better to have three judges than one. Last of all, where there are great and difficult and important points of law and equity to be settled, it is much more satisfactory to suitors, and to the profession which cultivates the sciences, to have that law considered and settled by more judges than one. These, then, are the considerations which principally move me to the adoption of the resolution I have formed. But, at the same time that I stop the great bulk of business going before his Honour the Vice-Chancellor, I shall not deem it necessary to recommend elsewhere that any step should be taken at present to terminate his Court, though in the 53d year of George III. it was expected that it would end in getting through the arrears. Though we have now got through the arrears, I do not yet see my way to that which as an ultimate result must be deemed highly desirable. His Honour the Master of the Rolls is more sanguine as to the speedy accomplishment of it than I am; but still I do not shut out from my mind the indulgence of the hope that I may see its termination at no very distant period. As long, however, as that Court shall continue to exist, I shall endeavour to avail myself, in all difficult and important cases, of the assistance of that most learned, excellent, and able judge, in this Court. I have said thus much, because I thought it fit, before terminating business, to let the profession know it was not for nothing that I had imposed on them the hardship: of these long and painful sittings—sittings, however, not much later—only two days later than Lord Eldon has sat; for he having sat to the 29th of August, I have sat only two days longer. At the same time I admit, that though I have sat only two days later than usual, yet I have sat many more hours in the course of the day, and I am aware of the embarrassments and inconveniences that this may have caused. I am not, however, aware that its tendency has been to abridge arguments in any case, for I am sure I have endeavoured to show as much patience as any man could possess, that I might not indicate the slightest indisposition to hear the longes! arguments. Even where I have thought argument superfluous, I have hardly ever stopped the reply, in cases where I have been in favour of the side on which the reply was to be made, and still more rarely have I disposed of cases on hearing one side only.* I, therefore, cannot charge myself with having got rid of this arrear, and accomplishing this dispatch, at the expense of curtailing the hearing of causes. The best proof in the world of this is, that one of the last I heard took up eight hours, the one preceding it took seven hours, and another immediately before it took six hours. Three causes, therefore, took upwards of twenty-one hours in being argued at the conclusion of the sittings, which surely is a proof that there was no great desire on my part to curtail the arguments, or not to hear counsel. The profession, therefore, and the Bar, I am sure, will rejoice as well as myself when we find we have not attended in vain, while we very soon shall witness the benefit conferred upon the country by having got rid of this accumulation of business; and also in the prospective arrangement touching the Vice-Chancellor’s Court, to prevent delay and unnecessary expense, to raise the character of the Courts of Justice in this country, and to answer the arguments used by persons unconnected with them—arguments so frequently levelled against the legal profession at large. The profession will feel not only that comfort and peace increased, but even their own character exalted. In conclusion, I have to state, that as long as I remain in town, which must be for some weeks longer, I shall devote one day in every week—Saturdays—to hear motions; I shall hear them in the private room; and I entreat suitors not to depend on counsel who are absent, or to get counsel to remain in town for the purpose, but to take such counsel as are in town. I have made inquiry, and I find that there will be several counsel of the greatest ability remaining, and I will hear them upon any motions by consent, provided notice be given on the Wednesday preceding, to one of my officers. I have directed an order to be made to that effect. I do not mean to make any private arrangements a consideration, but I wish to have the notice of the motion sent to me on the Wednesday, that I may arrange respecting my attendance in the House of Lords, because I am about now to sit from day to day in the House of Lords during the remainder of the Session; but I shall not sit there any Saturday when my attendance may be required here. I think this Court, sitting by one of its branches throughout the vacation, for the purpose of hearing pressing applications, is one of the most essential reliefs that can be afforded to the suitor, and is almost essential to the useful existence of the Court and the due discharge of justice. It was a remark of a learned and venerable friend of mine—one among the greatest sages of the law—I mean Mr. Jeremy Bentham—that one of the greatest evils arising from vacations was the shutting up the Courts at the very time when suitors might have the greatest occasion to require access to them. I do not think I can subscribe to the whole extent of his doctrine on this point; but, undoubtedly, that there is a great benefit to be conferred by keeping always open some part of the Court for pressing business, I most entirely agree with him in holding.”

His Lordship’s address was listened to with profound attention, and received with manifest satisfaction.

PREFACE.

By the Boa Constrictor, alias Helluo Curiarum, is meant, as will be seen, the declaredly-determined author of a measure for the strangling and swallowing up of the two courts styled the Vice-Chancellor’s and the Master of the Rolls’, into the Chancery Court. To place it—in the manner that will be seen—in front of, or so much as to give insertion to it into, this publication, formed no part of the original intention. The only publication originally intended, was that of which the Bankruptcy Court is the subject-matter. But the closer the scrutiny into that measure became, the more deeply did I become impressed with the painful persuasion, that in a man in whom, for so long a course of years, I have had the honour and happiness to possess a familiar friend, it was in conclusion my unhappy lot to behold an adversary—and that an irreconcilable one—an adversary, and to what? To law reform—to that all important undertaking, to which, from boyhood, the whole of my long life has been devoted. The consequence was, that, in my view, so long as he continued in the all-powerful situation which he now occupies, whatsoever hopes I had ever entertained of witnessing a consummation so devoutly to be wished, could not but remain in a state of extinction: and that, with all the feelings of a friend in relation to him, I saw no choice but acting in relation to him as I am hereby doing—and alas! in so harsh a way—the part of an enemy,—the exclamation “Et tu, Brute!” all the while sounding, as it were, in my ears.

This determination being taken, the prefixing the shorter paper to the longer one presented itself as a sort of preparatory measure, that might be conducive to the end in view.

As to the measure more particularly here a question: from first to last, to see the bill thrown out has never formed any part of my wishes. Two results I saw included in it;—the death of the existing state of things in relation to this part of the judicial establishment, with its procedure, and the birth of a new one: in relation to the first, my wishes were in entire accordance with those of my noble friend; in the other alone consisted the difference.

Throughout the whole course of my labours, I believe that one rule has, with undeviating adherence, been conformed to by me—be the institution what it might, never to engage in any such attempt as that of pulling it down, but for the purpose, and with the endeavour, to raise up something that to me seemed better, in the room of it; of the observance of this rule, exemplification will, on the present occasion, be seen under the head of Amendments, in the first part of these Observations, p. 578.

The smallness of the type had for its cause the intention of making use of the letter-post for the conveyance of this tract: little did I then think of the length to which it was destined to be drawn out.

Things left undone that ought to have been done—things done that ought not to have been done,—to these two heads will be found referable the charges here made against the institution, the effects of which are now beginning to show themselves: among the things left undone, consigning to one and the same judicatory the business performed by the court called the Bankruptcy Court and the court called the Insolvency Court; that is to say, under the judiciary establishment as at present constituted, with its system of procedure: for, under the system which I have ventured to propose, suits of all sorts, without any exceptions worth particularizing, would be taken cognizance of by a set of the same single-seated judicatories, proceeding according to the same simple, natural, untechnical, quasi-domestic system of procedure. In the publication intituled Justice and Codification Petitions, may be seen a slight sketch of it. As to the things which in my notion of the matter ought not to have been done, to hold up to view a part of them, nor yet more than a part of them, is the business of the ensuing pages.

I.

BOA CONSTRICTOR, alias HELLUO CURIARUM:

OBSERVATIONS ON THE “RESOLVED-ON” ABSORPTION OF THE VICE-CHANCELLOR’S COURT, AND THE MASTER OF THE ROLLS’ COURT, INTO THE LORD HIGH CHANCELLOR’S COURT.

A Boa Constrictor, of the first magnitude, appropriately wigged and gowned, crushing in his embrace the bodies, and extinguishing the life, of their two Honours, the Vice-Chancellor and the Master of the Rolls, both of them also appropriately wigged and gowned—no bad subject this for the graver of a Cruikshank. All pleasantry apart, I cannot but felicitate those whose hard lot it is to become suitors in equity, at the prospect which such a change presents to view, one stage of appeal at least, and perhaps in some cases two, made to evaporate. Of this haleyon state of things it seems to me that I see a glimpse; may it not prove a phantasmagoric one!

So much for what the Lord Chancellor calls his “resolved-on” arrangement. But an arrangement is one thing: a principle on which that same arrangement is grounded, is another: by one and the same person the one may be approved of, the other disapproved of.

“Number in an Office”—of these words is formed the title of section 3 of chapter IX. intituled Ministers Collectively, in my Constitutional Code: a proposition I have there advanced is—that, exceptions excepted (and rare indeed, if any, are the exceptions)—be the department what it may, single-seated should be every office in that department.*Single-seated? For what reason? Answer—For many reasons: but the principal one, and the most appropriate of them all, stands expressed by the single word responsibility: responsibility—itself a host of reasons.

“Number in a Judicatory”—Of these words is formed the title of section 5 of chapter XII. intituled Judiciary Collectively, in that same Code: in that section, to the several arguments which, in support of single-seatedness, had been applied to the case of the Administration Department, are added others which presented themselves to me as applying in an exclusive manner, or with peculiar force, to the Judiciary Department.

To these reasons (of which further on) I have the mortification of finding opposed, the authority of the aforesaid noble and learned Lord, as displayed in the string of dictums stated in the Morning Chronicle of the 2d of this instant September, as having been delivered on the occasion of an announced absorption of the Master of the Rolls’ and Vice-Chancellor’s into the Lord Chancellor’s Court: which said oracles of our said Magnus Apollo are in the words following; that is to say—“There are two or three branches of judicature in which the presence of three judges is infinitely better than that of one.

1. “First, where conflicting facts are to be discussed, or conflicting evidence to be heard, a jury is perhaps the best forum for such a case—a single judge perhaps the worst; but three men, with minds variously constituted, are much more likely to come to a satisfactory conclusion than a single individual.

2. “The next is—where anything like discretion is to be exercised, either in awarding damages or saying what costs are to be paid, which is often a very important and not unfrequently difficult and delicate inquiry, as too many cases are brought and kept up merely for the sake of the costs. The duty of the judge then is somewhat like that of assessing damages, and in the exercise of such discretion it is better to have three judges than one.

3. “Last of all, where there are great and difficult and important points of law and equity to be settled, it is much more satisfactory to suitors and to the profession which cultivates the sciences, to have that law considered and settled by more judges than one.

“These then,” concludes his Lordship, “are the reasons which principally move me to the adoption of the resolution which I have taken.”

There we have his Lordship’s dicta.

For my part, my work intituled “Constitutional Code; being,” as the title goes on to say, “for the use of all nations and all governments entertaining liberal opinions;” and, for the support and elucidation of the proposed enactive matter, the said work presenting throughout a correspondent quantity of ratiocinative matter; it would have been no small satisfaction to me, to have seen the truth of my arguments, which, as above, are delivered in support of single-seatedness in judicature, subjected to the scrutiny of so enlightened a mind, and to have given to the work in question the benefit of his lordship’s observations on the one side or the other, or on both: seeing that the questions are not a few, as to which, with perfect sincerity, by one and the same man (as Sir Roger de Coverley was wont to say) “much may be said on both sides.” This satisfaction I might have had, had his Lordship been pleased to add them to the “pap” which he was pleased to say pray for, and take from a tea-spoon of mine, when sitting on my lap, at the hermitage from which I write: those of the said arguments I mean which apply to the case of the Administration Department, that part of the work being then already in print; to which arguments he might have added moreover those which apply exclusively to the case of the Judiciary Department: for though not yet in print, they were even then in manuscript; and, were it only for the chance, howsoever feeble, of their now receiving that honour, I have some thoughts of sending them to the press immediately, and adding them to this paper, before I have done. Speaking of those same wished-for observations, I take the liberty of supposing them as having place on the one side, on the other, or on both.

Unfortunately, neither in any one of the above-mentioned dicta, nor in all of them put together, can I find any portion of that sort of matter called ratiocinative, which could with propriety be made to occupy a place in that same work of mine: for, for the support of his Lordship’s proposed enactments, ratiocinative has, in ipse dixitical matter, found, on almost every occasion, if not a more instructive, at any rate a more compendious, and, to the furnisher at least, a much more commodious substitute.

Now, then, for the three cases in which, according to his Lordship, three judges are better than one.

Case I. “Conflicting facts to be discussed, or conflicting evidence to be heard.” Of the sorts of cases for which three judges are, according to him, better than one, this is the first mentioned. But here comes a puzzle. Good for this case as are three judges, another forum he descries and points to as being for this same case still better: nay, so much better as to be the best possible. And this other forum—what is it? Even his Lordship’s old favourite, “a jury.” And of what sort of men is the population of that same forum, according to his Lordship’s declared conception of it, composed? Of “any twelve men,” so they be “good” ones, and “put into a box;”—“noexaggeration” here; so his Lordship was pleased to assure us. Such, after the most mature deliberation, was his Lordship’s opinion, as declared on the 7th of February 1828, in and by his self-published speech of that date, p. 5.*

Now, then, comes the puzzle. This forum being the perfection of aptitude—of appropriate aptitude, with relation to this very case,—why not on the occasion in question take it in hand and employ it, instead of the three-seated judicatory—a tribunal which, three-seated as it is, yet, its seats being in numbers no more than a quarter of those of the forum, yields still to it in point of this same aptitude?

In the course of the tract intituled “Observations on the Bankruptcy Court Bill,” those same arguments may perhaps be given at length: meantime, any something being on this occasion better than nothing, a sort of abridgment of them may be seen in the proposition following:—

As to the conduciveness of single-seatedness to the ends of justice, comparison had with many-seatedness, no otherwise can any estimate of it be formed, than by the degree of appropriate aptitude, in all its branches, which in the two cases is likely to have place on the part of the judge or judges, relation had to the functions of their office. For determining on which side the aggregate of such appropriate aptitude is likely to have place in the greatest degree, let attention be applied to the following propositions:—

1. As in the case of any other functionary, so in that of a judge. The state of the law being given,—for every practical purpose, appropriate moral aptitude must be considered as exactly proportioned to the strictness of his dependence upon public opinion.

2. Singly-seated, a judge finds not any person, on whom he can shift off the whole, or any part, of the imputation, of a mischievous exercise given to any of his functions. Not so, when he has a colleague.

3. No person does he find to share with him in the weight of that odium.

4. No persons does he find in the same situation with himself, engaged by the conjunct ties of self-regarding interest and sympathy, to support him under the apprehension of it, by the encouragement given by their countenance.

5. He has it not in his power, without committing himself, to give to an indefensible exercise made of his functions, half the effect of a vote,—namely, by purposed absentation and non-participation.

6. He finds not, in the same situation with himself, any person to share with him, and in proportion draw off from him, the whole, or any part, of any lot of approbation, whether on the part of his superior officer, or the public at large, that may come to be attached to extra merit, in any shape, manifested, on the occasion of any exercise given to his functions.

7. His reputation stands altogether upon the ground of his actions. He finds not in the same situation, any person to help him, as numbers help one another, to raise a schism in the public,—and, by the mere force of prejudice—without evidence, or in spite of evidence, in relation to specific actions,—to draw after them the suffrages of the unreflecting part of it.

8. Of the quality correspondent and opposite to appropriate moral aptitude, the most mischievous effect is—disposition to exercise arbitrary power. But that which constitutes arbitrary power in judicature is—not the unity of the judge, but his exemption from the controul of a superior,—from the obligation of assigning reasons for his acts,—and from the superintending scrutiny of the public eye.

9. The reproach of arbitrary power belongs, on all the above accounts, to the authority of many judges, especially large bodies of judges, in contradistinction to that of one.

10. The circumstances which render plurality indispensable in sovereign legislature, do not apply to judicature.

11. So many seats, so many sets are there, of persons, who, by community of sinister interest, stand engaged to secure the possessor of the situation against responsibility in every shape, for delinquence in every shape. So much for appropriate moral aptitude.

12. Now as to intellectual and active aptitude. In a singly-seated judge, most intelligence is likely to be found, in so far as intelligence is the fruit of exertion.

13. A judge, by being single, exerts himself the more from his seeing no resource but in his own powers.

14. Hence, only in the case of a singly-seated functionary can promptitude, or say dispatch, be maximized.

15. A singly-seated functionary has but one opinion, and one set of reasons, to give.

16. No person’s opinion has he to wait for.

17. No person has he to debate with, to gain over, or to quarrel with.

18. No person has he to put unnecessary questions to him,—to propose unnecessary steps,—or to necessitate useless adjournments.

19. All the advantages that can be expected from a multiplicity of judges, may be insured, in a much greater degree, by a numerous auditory, with the addition of the whole world for readers, as to everything in the conduct of a judge, that any men think worth their notice; and any advantage that can ever have happened by accident from such multiplicity can be imputed to nothing but the chance it affords for publicity.

20. The advantages obtainable from a plurality of heads, independently of exertion, are needed in no more than a small number of cases; and, in proportion as they are needed, may be had, by the help of advocates and courts of appeal, without putting judges, more than one, into the same court.

21.To suitors—that is to say, to persons having business at the office,—causes of delay are, in a large proportion of the number of individual cases, to a greater or lesser amount causes of expense.

22. If these principles be just, the saving they will produce in the expense of the establishment is prodigious. In the expense attending the collection of taxes—in the terms of loans—in the adjustment of most other plans of economy in finance, a saving of a few units per cent. is thought a great matter; here it runs to hundreds per cent., and the least saving is a hundred.

Then as to facility. The judicatory presents a difficulty of which the forum stands, or (if you please) sits, clear. In the judicatory, a condition required is, that the minds of the members be, all three of them, variously constituted; and in this qualification resides the differential character (as the logicians say) of the tribunal, its distinctive excellence, its sole alleged title or claim to preference. But, of this qualification, how is the existence to be ascertained? There I see a knot, which, staring his Lordship in the face, cries aloud to him—“Nay, but you must untie me.”

Is it by identity—in the first place, of professional practice,—in the next place, of official functions? Is it by the “viginti,” and ever so many more than the “viginti annorum lucubrationes” applied by the whole fraternity of them constantly, and with a more than ordinary degree of attention, to the same subject, that this same indispensable “variety of constitution” is to be produced? Uniformity, rather than the promised variety, is the effect I should have looked for from such a set of causes. Shaken out, by “the indiscriminate defence of right and wrong” carried on, through so long a course of years, by “the indiscriminate utterance of truth and falsehood,” common sense and common honesty make their escape, while the remaining matter contracts in proportion, subsides and coalesces in all alike into a paste of appropriate shape and colour, as if cast in one and the same mould: insomuch that, when, after the fire of London city, gratitude hung up the portraits of the twelve judges in that case, had not magnificence been preferred to economy, one portrait might have served for all twelve: as in the Nuremberg Chronicle, in the list of the progenitors and descendants of Abraham, so strong (it was found) was the family likeness, that one venerable head and shoulders, was so managed as to serve, without objection, for divers generations.

Turn now to the jury-box. Here all is (as a sailor would say) plain-sailing. According to his Lordship, all that is here requisite is—that there be men—that they be good—that there be twelve of them,—and that they be “put into a box.” Sir Robert Peel requires other qualifications: one is, that they be capable of being packed: but the above is all that his Lordship requires: no need of any “variation in the constitution” of their minds: so far from needing it, sooner or later, full or fasting, nolens volens, they must be every one of them of the same mind. “Variety of constitution:” by any such property would the twelve minds be rendered the more easily liquifiable into one? Not they indeed: they would, in proportion to the degree of the aforesaid variety, be more intractable and insoluble.

So much as to the question between single-seatedness and many-seatedness, and in particular triple-seatedness. Now for judges and boxes. If, after all, it be really true, that identity of habits is so surely efficient a cause of variety of constitution, a little arrangement or two there is, which I would humbly suggest for his Lordship’s consideration, as promising an ulterior improvement, grounded on his own so deliberately established principles. Let him take the reverend judges, all twelve of them, or whatever be now the number of them, and put them into a jury-box, setting down the box in the court of Chancery; and to make sure of that goodness which is the characteristic quality of a juryman, and that nothing which appropriate learning and wisdom can supply may be wanting, let him for this purpose borrow from Lord Tenterden the very jury-box which has so long been diffusing its goodness through the King’s Bench. As to his power for making this transference, in his own view of it, at any rate, it stands not exposed to any dispute; “I have power” says he, accordingly—“I have at present power to ask for the attendance of any or all the judges of Westminster Hall.”

On the other hand, if this be a little mistake of his (for nemo mortalium omnibus horis sapit,) and if accordingly diversity of habits is a surer cause than identity is of variety of constitution, let him once more betake himself to his old favourites the good men and true, and set them down comfortably in their own box. I mean not the special jurymen: for the squirearchy, being aristocrats, are all cast in the same mould. The jurymen whom I mean are the common jurymen: for among them there will he as many different habits as there are trades.

Now as to “conflicting facts and conflicting evidence.” As to this matter, a circumstance which, on the present occasion, seems somehow or other to have dropt out of his Lordship’s mind, is—that it is from these same conflicting facts and evidence that judges themselves deduce their conclusions: and not only common-law judges, but even equity judges: and not only equity judges in general, but even his Lordship himself. Yes: even his Lordship himself. For does he not hear bills and answers?—does he not hear answers to interrogatories?—does he not hear affidavits? And do not these same bills and answers, interrogatories and affidavits, relate to “conflicting facts to be discussed, and conflicting evidences to be heard?” I speak under correction: but really his Lordship puts one in mind of Monsieur Jourdan, who had been talking prose all his life long without ever being aware of it. All their official lives long, added to their professional, have all judges—learned judges—been in the habit of hearing and dealing with this sort of intellectual matter: a juryman—the first day of his being put into the box—has not heard a syllable: which first day may also be the last. Here, then, we have on the bench the maximum of experience; in the box the maximum of inexperience. Here, then, we have a problem calling on his Lordship for solution: required, to show the advantages which, on this occasion (not to speak of other occasions,) inexperience possesses over experience.

In the box, men have the evidence elicited from them in the best shape; on the bench, in three of the worst shapes it is in the power of human ingenuity to devise: namely, affidavits, answers to bills, and answers to written interrogatories, without any answers to such questions as those same answers might suggest: the deduction depending upon, and varying in great measure in proportion to, the badness and deceitfulness of the shape: but still, is it not on facts—conflicting facts—and conflicting evidence, that the adjudication is made and pronounced in the one case as well as in the other?

True it is, that in the case of the bench the conclusion is styled a judgment or a decree: in the case of the box, a verdict: but what difference this denomination makes in the nature of the matter, I must, with all submission, leave it to his Lordship to determine.

True it is, moreover, all this while, that the question—the principal question—is between judges and judge; not between judges and juries: the question, as to juries, being blown in, by his Lordship, as it were by a side wind—in the form of a parenthesis. But, howsoever it may have got in, this doctrine was by far too important to be passed by unnoticed. For here may be seen—and from those same most impressive lips, the confession, Video meliora proboque, deteriora sequor. The jury-box, with its contents, being the best machinery of the two—indeed, according to your own declared opinion, the best of all possible machineries,—what, on any occasion, and this in particular, should hinder you from making use of it? Surely not any unpopularity that you can see in it?

2. Now for case the second—namely, “Where anything like discretion is to be exercised:” subject-matters of the discretion in this case, “damages” and “costs:” operations to be performed by the light of the discretion, “awarding the damages, and saying what costs shall be paid.” Thus far his Lordship.

Where anything like discretion is to be exercised? This read, I fell to rubbing my eyes, and said to myself—Am I now awake? That there may be judges who, on this or that occasion, are capable of acting without discretion, is indeed conceivable enough; and perhaps his Lordship may not have any very great distance to look to find one. But, that there should be in existence any such judge as one who, by speaking of the case in which something like discretion is to be exercised as being a particular case—should give it to be understood, that, in his opinion, by a judge, generally speaking, neither discretion itself—no, nor so much as anything like discretion—should be exercised,—this it is that makes me stand aghast.

The plain truth is, that this same word discretion is a sort of arrow, which learned judges, when in a state of conflict with one another, and in a rhetorical mood, have been seen letting fly at one another. In days of yore, Hector and Achilles were Lord Camden, Lord Chancellor—and Lord Mansfield, Lord Chief Justice:—“Discretion,” exclaimed one day Lord Camden—“Discretion is the law of tyrants.” Whence came it to be so? Even from this:—namely, that something about discretion, and in favour of it, Lord Mansfield had been indiscreet enough to utter. Thereupon, as if Achilles had been slain, in placard types was trumpeted forth in the Whig periodicals and pamphlets of the day, this dictum of their Hector, who, after all, found himself compelled to turn his back upon Seals and Bench. Discretion is the law of tyrants? Yes—and sure enough, in an unguarded moment, something rather approbative than otherwise of the use of discretion had dropt from the lips of the Lord Chief-Justice. I say unguarded: for had he put before it the word sound, there would have been nothing to lay hold of, and the bolt would not have been shot; nor, if shot, have stuck upon it.

Let me not be mistaken. No such intimation do I mean to convey as that the course my noble and learned friend means to recommend is the law of tyrants: all I mean to say is, that, when employed in certain ways, the word discretion is the word of parrots: and that, though the lip it comes from should belong to a head which had ever so full bottomed a wig over it, no determinate idea—no idea capable of entering into the composition of any tolerably effective argument—would come in company with it. So much for the word discretion. Meantime, on the present occasion, what is at the bottom of it? If anything, it is this:—when the subject of decision is—not a quantity already determinate, such as a house, or a horse, or a sum certain, due on a note of hand—but a quantity which remains to be determined, such as a sum of money in compensation for a wound—wound to body, reputation, or domestic peace (vulgo, crim. con.)—then so it is, that that which in the way of decision is to be done is—upon a scale of greater or less length to make choice of some one degree, to the exclusion of the rest. The operation of fixing upon this degree is what goes commonly by the name of liquidation. This exposition you will not find in Coke upon Littleton; but upon examination, should you deem it worth the trouble, you will not the less find it to be correct: and so it is, that this mode of decision, commonly called liquidation, is of the number of those, the formation of which has from time immemorial been in the hands of a jury. Now, then, as to this same operation, true it is they are used to it. But are they exclusively fit for it? Semble que non: no; nor so much as equally fit for it. Used to it they are indeed; but how? even as eels are used to be skinned. No eel is used to be skinned successively by several persons; but one and the same person is used successively to skin several eels.

So much for damages: now as to costs. When for its reasonableness the quantum of the allowance made in the name of costs depends upon the propriety of the degree chosen, as above,—as, for example, in the case of the sort of allowance made to a witness for diet in part of travelling expenses,—they may be in this respect, and in so far, upon a footing with damages: but in so far as they consist of fees of judicial officers, in this case they are so in but a small degree: generally speaking, these same fees are so many determinate quantities: and so in the case of costs as between attorney and client: so are the fees actually paid to counsel—degrees and liquidation are altogether out of the question here. But all this while, all this talk about costs (not to speak of damages)—what is it to the purpose? Be the functionary in question a juryman or a judge, make what you will of discretion, what difference can it make—what difference whether the decision to be formed be called a verdict or a decree? liquidation, as above described, or any other operation? Talking is one thing; thinking is another: talking (at any rate, in any determinate manner) is less needful at the Bar, more needful on the Bench. On the Bench, talking without thinking makes bystanders shake their heads.