Front Page Titles (by Subject) 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 Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)
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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. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 5.
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*∗*The following Note was prefixed to the article by the Editor of the Westminster Review:—
LORD BROUGHAM DISPLAYED:
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.
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.
BOA CONSTRICTOR, alias HELLUO CURIARUM:
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.
Another thing. Of this same reasoning of his Lordship’s, application being made by him—not only to cases “where something like discretion is necessary,” in saying “what costs are to be paid,” but also to cases where something not less like discretion is to be exercised in awarding “damages:” in such sort, that, in those cases likewise, three judges are, according to him, in no less degree better than one: this being the case, may it not be that these cases likewise are among those which are resolved by him to be brought within the field of his jurisdiction, as above, in the same manner as these others?
If so, then so it is, that, notwithstanding that for these same cases juries are so much better than judges, their jurisdiction is actually resolved by him to be taken from those same favourites of his. If so, then, alas! how feeble and slippery a thing is fondness in high places!—“put not thy trust,” says somebody in holy writ—“put not thy trust in princes.” In princes then shall we put our trust? No: nor yet in chancellors.
3. Case III. “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.”
Settled indeed!—settled—by judges, and those Equity judges, three in number, the Lord Chancellor himself included!—as if any “great and important points of law and equity” or any points at all of law or equity, ever had been settled by judges—by judges in the number of three or in any other number: as if it were in the nature of the case that any points at all, of law or equity, ever should be settled by judges—by judges in any number, acting as such: as if any point of law could ever be settled by any other instrument of settlement than that which is composed of a determinate assemblage of words, acknowledged to be the words of a determinate person or set of persons, invested with the branch of power styled the legislative.
Settled indeed! Yes: if instead of settling the one thing needful were unsettling, this is what is in the power not only of the three judges in question acting collectively, but of a single one of them, that is to say, the Lord Chancellor, acting severally. This is what he can do—this is what he understands perfectly how to do—this is what, over and over again, he has done—this is what he has been suffered thus to do, and without any the least notice taken of it: such has been the stupidity or supineness, or such the treachery and cunning of those individuals by whom, in conjunction with their fellow-legislators, this contempt of the highest authority in the state has been left unpunished. As to proof, looking out for proof of the perpetration of this crime would be looking out for proof of the existence of the sun at noonday: in the mind of any law practitioner or law student of a year’s standing, the single word registration will suffice to call up a swarm of examples of this same securiticide practice. In the miscellany intituled “Official Aptitude,” &c., in that one of its papers which is intituled “Indications respecting Lord Eldon,” may be seen an example, not merely of the practice, but of the avowal—the open avowal of it.
So much for settlement. Now for satisfaction and its conjugates, satisfactory and satisfactoriness. In this same satisfaction, we have the end in view which the noble and learned judge has thus declaredly set before him, on the occasion of the “resolution” declared to be on this occasion come to by him—the resolution to bring about this great change. Satisfactory?—to whom satisfactory? Some person or persons, in whose breasts the agreeable sensation designated by the term satisfaction will have place, in consequence must be found, or no such quality as that which is designated by the attributive satisfactory can have been produced by this same change.
Out of the above-mentioned three “branches of judicature” brought to view by his Lordship, as furnishing that same number of cases in which “the presence of three judges is” so much “better than that of one”—in two, namely, the first and third, this same word satisfactory is inserted in the sentence, and employed in giving expression to this so highly desirable effect. But in the first of the two cases—namely, where “conflicting facts are to be discussed, or conflicting evidence to be heard,”—in this case, of the persons in whose breasts the sensation is to be produced, no intimation whatsoever is conveyed.
Remains, as the sole case in which any such information is afforded to us, case the third—namely, as above, the case “where great and difficult and important points of law and equity are to be settled.” In this case, then, who are the persons in whose breasts this same agreeable sensation is to be produced? Answer—Persons of two classes or descriptions; namely, 1. “The suitors:” 2. “The profession which cultivates the sciences”—meaning (for what other things can it have meant?) the science of law, and the science of equity.
Now then, as to these same two classes, that to one of them the change, if affected, may be made satisfactory, is what I can conceive; though as to its being actually made so, this is more than I could venture to promise myself: this class is that designated by the name of the “profession which cultivates the sciences.” But as to the other class—the class composed of the suitors, whatever I may have supposed on first taking the matter in hand, nothing, upon a closer inspection, can I descry in the change—nothing that has any tendency to produce any such agreeable effect. Yes, if neither of their two Honours were to be on any occasion thenceforward present in any court other than that in which his said Lordship sits; on which their own courts would take the flight to the moon: whereupon, as above intimated, there remaining no more courts than one, to these same suitors the corresponding quantity of delay, expense, and vexation, would be saved.
But to say that to both these classes,—namely, suitors, and the profession which cultivates those same sciences,—one and the same arrangement will be satisfactory—to say this, is as much as to say, that to the sheep and the wolf one and the same arrangement of the field or the sheepfold will be satisfactory: to the sheep (need it be said,) the arrangement which, on this, as on every other occasion, will be the most satisfactory one, is that, whatever it is, by which the several quantities of delay, expense, and vexation, are minimized: to the profession which, according to his Lordship, “cultivates the sciences,” the arrangement which, on this, as on every other occasion, will be most satisfactory, is that by which the quantity of delay, expense, and vexation, will be maximized: not that, considered by itself and for its own sake, delay will be thus satisfactory: no; scarcely would it be in any degree satisfactory, were it not for the use it is of in making addition to the expense, and the addition made to lawyers’ profit by addition made to that same expense.
That to his Lordship, the arrangement thus by his Lordship resolved to be made, would, if made accordingly, be satisfactory—this is what may, without difficulty, be conceded: but this, howsoever it may have been the end in view aimed at, is not any part of the end in view professed to be contemplated, and endeavoured to be accomplished; insomuch, that when the offspring of the mountain, which in her confinement has had so hard a time of it, has been looked for, not so much as a mouse, it is believed, will be found.
Moreover, as to the fields, which, speaking in general terms, his Lordship speaks of as having for cultivators the persons he mentions, these are “sciences:” but of the only two fields in particular, which, as above, are mentioned by him as being cultivated (namely, law, meaning common law, and equity,) neither the one nor the other is, in its entirety at least, the subject-matter of a science. The subject-matter of a science is a thing capable of being known: but a thing which has no existence, is not a thing capable of being known: of that which is called equity, no part has any existence; of that which is called law, that part which, in contradistinction to statute law, is called common law, has not any more existence. An act of parliament is really a law: to know what there is in this or that act of parliament—to know, for example, what, under and by virtue of an act of parliament, a man is to pay in the way of a tax,—is indeed to be in possession of so much knowledge, and that useful knowledge: but it is not to be in possession of what is meant by science; any more than to know what o’clock it is. To know how to get money, by pretending to know what, on each several occasion, law says, or equity says,—this may, perhaps, indeed, be said to be a science: at any rate, the actually getting money in that way may be said to be exercising the correspondent art. But, sure enough, neither the doing this, nor the knowing how to do it, is what his Lordship meant when he spoke of “cultivating the sciences.”
The knowledge of what law ought to be—that is to say, of that rule of action, conformity to which will, on each occasion, be in the greatest degree possible contributory to the happiness of all persons interested,—this is indeed a science. But, this science—how many are the men of law that ever thought of cultivating it? What has ever been to be got by it? What motive, of any sort, has any man of law, as such, ever had for cultivating it? What Bench is there that it has ever led to? His Lordship—did he himself ever stoop to cultivate it?—did he ever deign to bestow a thought upon it? Is it anything better than theory? And with what disdain do not noble and learned lords look down upon theory from the heights of practice!
So much for rules and corresponding principles:—Lord High Chancellor’s rule, three judges on a bench better than one; corresponding principle, the triple-seatedness-preferring principle:—unofficial theorists’ rule, one judge on a bench is better than three or any greater number; corresponding principle, the single-seatedness-preferring principle.
So much for rules and principles. Now for the application made of these same rules and principles—the application made of them by his Lordship to the particular case in question. What now shall I say of it? To speak of it, I must either profess to understand it, or profess not to understand it. Of these two opposite professions, the first is what I feel myself utterly unable to make, consistently with truth: irresistibly, therefore, the other forces itself upon me. Of this dictum of his Lordship’s, the meaning not being tangible, left to me are the words: these I must take in hand, and send my thoughts abroad in quest of some meaning for them.
At a former time, to which I see allusion is made by him, what he proposed stands thus expressed:—“I proposed, therefore,” says he, “that all causes of difficulty or importance, in point of value, or from the law as applying to them, should at once be transferred here and be heard by me, as thereby the inevitable appeal” (meaning, I suppose, the otherwise inevitable appeal) “would be averted. The event,” continues his Lordship, “has justified my prospective conjecture, and leads me now to form the plan which I shall certainly adopt—namely, the transferring the bulk of that business” (meaning equity business in general) “to this court,” (meaning the Lord High Chancellor’s Court, in contradistinction to those of the Vice-Chancellor and the Master of the Rolls.) Thus far his Lordship.
Now, then, as to importance, not to speak of difficulty, on the occasion of the application made of the law,—where is the cause that is not of importance? If that which is of importance to the suitors, or to one of them, is of importance, then (as the madrigal has it) “ten thousand pound to one penny”—no one such could be found. A cause which swallows up the whole of the property a suitor can command—is that cause of the number of those that are of “importance?” In point of value, sufficient to swallow up the whole of the property of nine-tenths of the good people of England, not to say ninety-nine hundredths, would be found to be, in the case of the least importance that ever came before the court, the costs expended upon it before it had received its termination: the costs, I say, over and above the value of the subject-matter of the dispute.
Now, then, if so it be, that on the subject of importance as applied to a law or equity suit, there be in his Lordship’s mind, enlightened as it is, anything of a misconception, where shall we look for the cause of it? Shall it not be in the loftiness of the situation occupied by it? In the eye of the learned profession and the opulent aristocracy, there are two classes of men whose happiness is of importance; namely, the said professional class and the said aristocratical class; forming, together, say between one-tenth and one hundredth of the whole community: there is one class, the happiness of which is of no importance; namely, the remaining nine or ninety-nine. On this theory, on a careful examination, has been found to be built the whole structure of the judicial establishment in England, and the whole of the system of procedure, according to which that establishment conducts its operations—an establishment and a system having for their object or end in view, in as large a proportion as may be, the dividing between the learned profession and its best customers,—namely, the dishonest among the relatively opulent, the property of the relatively unopulent suitors: for such is the effect—the manifested, the uncontroverted, the uncontrovertible effect—of factitious costs, and the system of procedure organized for the purpose of giving admission to them in the largest quantity possible: demonstrated may all this be seen in the Petition for Justice.
Well: but, for argument’s sake, let it be admitted that some causes there are which are not of importance. Thereupon comes the question—how—by what criterion—can those who are empowered, and at the same time disposed, if any such there be, to distinguish,—and distinguish in time to prevent suffering,—those causes which are not of importance, from those which are: and, in addition to this, comes, moreover, that other question, as to difficulty—the question—between those which are not of difficulty, and those which are. In the case of each individual cause, is there to be a sort of preliminary trial, or equivalent to a trial, for the purpose of ascertaining whether or not it be of importance? And so, moreover, in regard to difficulty? If so, by what course are these several preliminary suits or causes to be respectively conducted?—by bill in equity?—by petition, as in a bankruptcy case?—by a grand jury, as in common-law penal cases?—or by action, real or feigned, as in a civil cause?—or would not trial by cross and pile be preferable to them all? for, at any rate, it would save, or at any rate, if his Lordship pleased, might be made to save, costs.
One thing we are informed of, and that is,—that of the aggregate number of causes, the great bulk will enjoy the benefit of this same exaltation; but still the number of them—the absolute and relative number—remain to be grasped at by conjecture.
Now, then, comes the transference—the so determined transference. What, on this occasion, can his Lordship have meant by transference?—to what causes was it meant to apply?—to causes already in existence, or future contingent causes, and those only?—or to both classes? In each of these two respectively, by what hands is the transference to be made?—in what hands is it to originate? Will his Lordship, ex mero motu, go to the court below, take in hand the record, lay it on his shoulder, and thus carry it bodily into the court in which he so illustriously reigns? saying or not saying—this cause is of sufficient importance to be, in the first instance, and thereby to a certainty, heard and determined by me?—of too great importance to be entrusted at all to such a man as you, Sir Launcelot Shadwell, or to such a man as you, Sir John Leach, otherwise than in leading strings, with myself to hold them? Or will he wait for some one else, and who, to move his Lordship for leave to bring up the cause into his Lordship’s high court? In this latter case, the motion—will it be a motion of course, or must it be a motion for a rule to show cause why this new sort of certiorari should not issue, with liberty, on the other side, for cause to be shown accordingly?
Difficulties upon difficulties thus stand in the way of this arrangement, the design of which is to remove difficulties—difficulties, and those such as I cannot but think will be found to be insuperable ones.
So much for the causes, and the transference so resolved to be performed of those same causes. But now for the judges—the two other judges, whose destiny it is to hear, or be present at the hearing of, and to help determine, or be present at the determination of, those same causes. By what means, in what manner, are they to be transferred from their respective inferior benches to his Lordship’s superior bench? This same transference—will it be agreeable to them respectively? Will it be (to use his Lordship’s word) satisfactory to them? May it not happen to them to be more or less recalcitrant? On the one bench sits the Master of the Rolls: but another seat there is, on which, if not now, it may happen to him to sit any time; and that is a seat in Honourable House. In that house sat lately the most illustrious of his predecessors, Sir William Grant; and in support of aristocratical swindling, and against the cause of moral honesty and payment of just debts (Romilly è contrà,) knight’s service did he do there.
Should, then, either of these demur, will he send his messenger to them, as did in Charles the First’s time the Honourable House, to take them bodily off their own benches, and set them down on his Lordship’s?—or will he himself take them up in his noble arms, and on each shoulder, St. Christopher-like, carry them off, and so deposit them?
To save this trouble, will Lord Tenterden lend him a mandamus? Scarcely without an act of parliament to warrant it, the attainment of which, in case of need, seems indeed to be among the number of his Lord Chancellorship’s resolves. But then will come committees, and first, second, and third readings to both houses, and objections upon objections.
So much freer from difficulties would be the jury plan—the plan so decidedly pronounced by his Lordship to be the better of the two. “Good men,” in the shape of jurymen, are as tame and obedient as spaniels. Show them a box, and call it a jury-box; they run into it at first word. Vice-Chancellors and Masters of the Rolls—the more I think of them, the clearer I am that they would run rusty. I hear them remonstrating and preaching—I see them kicking and sprawling, with clouds of powder flying out of their wigs, before they can be brought, if ever they can be brought, to sit still under his Lordship’s eye, and nodding approbation in obsequious silence.
Before I leave this topic, let me give utterance to another humble wish I have formed, which is the wish to know, whether (jurymen apart) the preference given to the greater over the lesser number stops at the number three, or whether, if he could get any, and what greater number for his puisnes, he would do so, his stopping at number two having no other cause than that he knows not very well how to get any more of them. To my humble apprehension, if in any degree that “variety of constitution” in which he puts his trust were to be found in number three, it would, in all probability, be found in a still higher degree in number four; and so on in the numeration table. If it be in superior magnitude in number, in conjunction with “variety of constitution,” that he puts his trust, I could point to situations more than one, in which he might find judicial characters for pulshes with less danger of difficulty than in the two only ones he as yet speaks of: for example, Masters in Chancery, Magistrates paid, Magistrates unpaid, men qualified to be special jurymen, men qualified to be grand jurymen; and, to add dignity ab extrà to intrinsic aptitude, even a Lord or two might, with less reluctance than the Master of the Rolls (not to speak of the Vice-Chancellor), be prevailed upon to lodge their sitting-parts on the high bench.
For my own part, my own opinion, right or wrong, is at any rate clear, determinate, and self-consistent: it is—that so far as depends on number, in the case of a judicial situation, aptitude is as the number of the functionaries occupying it, inversely; were it only because responsibility is so: or in other words, inaptitude is as the number directly, and for that same reason. Now, then, what on this occasion I could wish to know is, whether in his Lordship’s opinion this same proportionality has place—the only difference between us being that between the inverse ratio (I speak here to the noble and learned mathematician) and the direct; or whether the numbers to which on this occasion he gives his preference, follow one another in perturbate order (as Euclid has it,) like cards in a pack well shuffled, or in the regular rank and file order of the numeration table.
If Masters in Chancery would be “satisfactory” to him, I dare answer for him and them, he might, without any dissatisfaction on their part, have them to sit with him; and in whatever number would be most “satisfactory” to him: especially if they were to have, each of them, all the while, a newspaper to read, or pen, ink, and paper, to write letters with (as some learned judges of superior order have been seen to do, while learned counsel were straining their throats:) the Master’s clerks doing, all the while, at their respective chambers, the business which their said Masters were paid—by a fee for each business—for pretending to do. An additional source of satisfaction in this case is, that those same assessors would, every one of them, know his place. This place is, on each side, that which is as far from that of his Lordship—the Lord High Chancellor—as possible: his person being encompassed with an atmosphere the repulsive quality of which is strong enough to produce that decorous effect. Such, at least, speaking from the testimony of my senses, used to be the state of these things in former days: nor could I, without a sentiment of commiseration, behold one of these learned gentlemen in the state of humiliation to which he seemed doomed: his Lordship not taking any more notice of him than if he were a post. A Master of the Rolls or a Vice-Chancellor—would he submit to this? I question it.
This change, then, supposing it effected,—what would be the effect of it? Just so much pure evil—evil, without a particle of the matter, or in the shape, of good: the business of the two subordinate courts interrupted and deteriorated: and the business of the highest sphere—of the sphere illumined by the brightest luminary of the law—the business of the superordinate court, not benefited nor advanced, but retarded also: the suitors of the subordinate courts—such of them at least as are in bonâ fide, not wilfully employing the power of those same courts as an instrument of depredation or oppression—these ill-starred men, vexed by delay: the practitioners in those same subordinate courts vexed likewise, and by that same cause: and to conclude the train of mourners, the two unhappy subordinates—mutes, and, for the loss of their own business, mourners—their two Honours, vexed likewise: vexed, by being humiliated, dislocated, disempowered, dishonoured, and metamorphosed into mutes: singing, when out of court, diswigged and disgowned—singing in doleful ditty and duet,
“Nos inhonorati et donis patruelibus orbi.”
As for me, when I entered upon this discussion, as the reader may have observed, a ray of hope beamed upon my mind. Imagination presented to my view stages of appeal, one or even two, eliminated: so much delay, expense, and vexation saved: the matter of a mixed mass, composed of salaries and fees, kept in the pocket out of which in the present state of things it is snatched. This hope, alas! has now, for some time past, been dissipated. “My wish was father,” my imagination mother, “to that thought.” Still would sit their two Honours, pressing, not less heavily than at present, with their dead-weight upon justice. Delay, far from being diminished, would, as above observed, be increased; for while with their sitting parts on the High Bench, they were constituting part and parcel of the living stock of functionaries of that court, the business of their own court would be at a stand.
Of this disastrous truth, a sad confirmation is afforded (how could I overlook it?) in and by one of the very sentences, in which his Lordship makes mention of this transference. “I have power,” says he, “to ask for the assistance of any, or all of the Judges of 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 the Vice-Chancellor, when necessity requires;” having in view, of course, the familiar phrase “ask and have.” Now, then, what is clear is—that no such “resolution” can ever have taken possession of his Lordship’s mind, as that of absorbing into and swallowing up in, his own noble and learned maw, the whole power of all those same learned judges put together: as well might he swallow up those same learned persons themselves—flesh and blood, bones, wig and gown, and all; nor at the same time is any distinction expressed, between what he proposes to do by the two Equity judges—the Master of the Rolls and the Vice-Chancellor—on the one part, and what he proposes to do by those same common-law judges, on the other part. And as to the resolvedly devoted pair of judges, what is it that it is his resolve to do?—to keep them tethered down to his girdle, in his own custody, during the whole of their official lives? Oh no: only “when necessity requires:” and this her requisition—when is it that Dame Necessity will make it? That will depend altogether upon his own noble and learned discretion. To his Lordship, on each individual—yes, individual—occasion it will belong to determine in what place or places they shall be; and, for aught that anybody else will be able to tell, they may, at all times, be in a state of vibration, like a pair of pendulums, between the Court of Chancery and their own proper courts.
As to myself and my own labours,—I have spoken as above, of the retribution they have received by the tokens of approbation here and there expressed in relation to them. In and by the following passage, with which this same speech of my noble and learned friend concludes, I cannot but behold a rich reward—honourable to me on whom it is bestowed—not much less so to him to whose magnanimity, under such provocations as it has happened to him to receive from me, I am indebted for it:—“It was a remark,” says he, “of a learned and venerable friend of mine, one of 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.”
On the social part of my mental frame, this token of kindness has made the sort and degree of impression which it could not fail to make: but neither by this nor any other impulse, am I to be turned aside from my duty to that public, to the service of which the labours of my life have so long been devoted. That I am not to be corrupted by gold, is already pretty well known: it will now be known that I am not capable of being corrupted even by gratitude.
Would that, by anything I could say or write, I could turn aside my noble and learned friend from bit-by-bit (the word is his)—from bit-by-bit, and ill-considered, unconcocted, incoherent, and unseasoned, supposed reforms or improvements in legislation. My portfolio, my arms, my heart, are still and always will be open to him. Had he but on this occasion had the command over himself to resort for information to that source from whence, at his desire, information on kindred subjects had been so amply communicated to him, and in some sort profited by, (alas! that it had but been a little more profited by!) the disappointment to which so insufficiently considered a proposed and declaredly-resolved-on arrangement seems inevitably doomed, with the mortification inseparable from the failure, would not (I cannot but think) have been experienced.
To the functions of judicature, then, let him confine his exertions and his “hope of glory:” as to legislation, so far as regards origination of measures, leaving the field to him, whose proficiency in that branch of art and science was recognised some years before the existing successor of Lord Bacon saw the light.
Never, without violence done to my feelings, is condemnation, how loudly soever the occasion may appear to me to call for it, passed by me upon any part of the character or conduct of a friend; never, without satisfaction to those same feelings, is commendation, when it presents itself as deserved, paid by me, even to an enemy.
A subject which I contemplate with sincere and unalloyed delight, and with which it rejoices me to be able to conclude this unavoidably polemic discussion, is the dispatch—the altogether unexampled dispatch—spoken of by his Lordship in this same speech, as given by him to the business of that court, on which it casts so bright a lustre. In what light does it not place the job—the justice-obstructing court, set up by the most indefatigable, implacable, and irresistible enemy to justice and human happiness, that his situation was ever filled by:—that job, which Romilly, one of the earliest and most attached of my disciples, so strenuously and so fruitlessly fought against.
By the “indiscriminate defenders of right and wrong,” this dispatch, with the relief afforded by it to suitors, is murmured at and attacked. Against these attacks, one part of the defence I had rather not have seen. When convinced, from the statement of the party’s own advocate,—convinced of his being in the wrong,—this judge’s way (he tells us) was—to keep the other causes waiting, while the advocate, on the other side, was taking up the time of the court, in labouring to prove his being so. Favourable and gratifying to advocates is, of course, such patience, such licence, such indulgence. Yes, indeed, to advocates—but what is it to suitors? This comes of having judges, whose apprenticeship, instead of being served under masters whose interest is identical with, is served in fellowship with those whose interest is irreconcilably opposite to, that of the whole people besides, in their capacity of suitors, and those who, but for the prohibitive factitious expense, would be suitors. But this is human nature. Who is the lawyer’s neighbour? His brother lawyer: this is the man whom he loves next to himself. This is lawyers’ law and lawyers’ gospel. Being competitors, they, indeed, like harlots of the other sex, hate one another: but not the less do they, like wolves, herd together, and join in hunting and devouring their common prey.
Not quite so much regard as is wished by the Bar is paid by him (I hear it said) to anterior decisions. May be so: but, be it ever so little, quite as much is it as is wished by me. Are you an Equity judge? Pay no regard at all (say I) to anterior decision: set before you, on each occasion, this one end in view—this one principle—the disappointment-minimizing principle. Pay any regard to them? Why should you? No otherwise contributory to human happiness was any one of those decisions, than in so far as it operated in conformity to that all-beneficent and all-comprehensive principle. If so, then why not, under its guidance, take the direct road, instead of passing through those tortuous tracks, which, intentionally or unintentionally, have so continually turned themselves aside from it? When, with equity on his lips, a chancellor first entered upon this devious course, what regard paid he to the anterior decisions of the till then only class of judges—the common-law judges? For justifying such his deviation, what plea could he have made, if it was not this? “Pursuing on this occasion their rules, the judges would produce disappointment: taking the course I take, I prevent it.” Such, in spirit and in purport, must, if questioned, have been the defence of the first equity-administering judge. Such, at any rate, is the doctrine which, in my proposed experimental measure of law reform—my Equity Dispatch Court Bill—I venture to preach—the course which I propose that my dispatch court judge shall be empowered and called upon to take: he to whom it appears that he “knows cause or just impediment why” the same should not be taken, let him “declare it.”—“This the first” and “last time of asking.”
Not only on the subject in this speech mentioned by him—namely, the undiscontinuity of the administration of justice,—but moreover, on that which, on the present occasion, is the principal subject,—namely, the most appropriate number for the seats on an official bench,—before the public eye, and thus courting that of my noble and learned friend, has, for this twelvemonth or more, been my opinion: witness my Constitutional Code,* on which occasion, with scarce an exception, single-seatedness, as opposed to many-seatedness, is advocated as the only defensible arrangement. True it is, that the only offices there under consideration are those of the administration department: and those here in question belong to the judicial department. But in that section, with its sixteen pages, not an argument is there which applies with less force to the judicial than it does to the administrational department. In another part of that same work,† to the arguments which, as above, apply in common to both departments, are added others, which, in an exclusive or peculiar manner, apply to the judiciary. To these, they not being yet in print, I may perhaps, before I have done, give insertion here.
OBSERVATIONS ON THE BANKRUPTCY COURT BILL.
That the “rights” in question “may be enforced with as little expense, delay, and uncertainty, as possible”—this (and in these words) is the professed end in view, as professed in and by the preamble.
Thus much for profession—placed thus, and with uncontrovertible propriety, in the front of this important instrument. Between this profession and practice, let us now take the earliest opportunity of observing what sort of agreement, or other relation, has place.
I. First as to expense. This has two branches: one, that which is charged upon the public stock; the other, that which is laid upon the shoulders of the parties.
First, then, as to that part of the expense which is charged upon the public. Here presents itself, to the very slightest glance, and without possibility of contestation, ground sufficient for denominating the judicatory a pickpocket court—and the measure a pickpocket measure.
Judges, in number four, to do the business of one: superfluous situations with superfluous salaries, three out of the four.
Instituted by this bill are two sorts of courts: the one first mentioned the superior of the two—this to act in lieu of that which at present is held by the Lord High Chancellor: the other—the inferior—to act in lieu of those which are at present held by the existing Commissioners, seventy in number.
In the superior court, at present existing, and by this determined to be superseded, what is the number of the judges? Answer: Number, one: one, and no more.
Here, then, is innovation: and for this innovation, what reason assigned? None whatever: no, nor so much as the shadow of one. But this determination—this effect—has, like every other effect, its causes; and, in particular, its final cause—its end in view: and this end in view—what is it? Answer: Until some other shall have been assigned—profit to the Lord Chancellor—the author of it: profit to him in the shape of patronage.
Now as to the amount of public money thus caused to be wasted; and of the private emolument for the sake of which the waste is ordained.
The expense is distinguishable into two parcels: that which is laid on the shoulders of the public at large; the other upon those of the individuals interested.
1. First as to that which is laid on the shoulders of the public. Mark well the items of it: Lords’ Bill, page 16, § 44: in the Commons’ Bill, nothing on the subject making its appearance.
Now then for the several functionaries thus appointed and salaried.
1. As to the three Puisnes. What is the use of them? None whatever. What is the pretence for them? Pretence alleged, none whatever. Pretence insinuated, perhaps this:—namely, that which is, perhaps, in § 1, at the bottom of the words, “shall be and constitute a court of Law and Equity.” Now then, before the word equity, why insert the words “law and?” Answer: Because, whereas a court, which is called a court of equity, and nothing but a court of equity, has in it but one judge, and therefore is not understood to need to have more than one judge: on the other hand, a judicatory, which is called a court of common law, has always had four judges, to whom has been recently added another, and is therefore understood to need to have four judges. This being the case, by these same well-imagined words “law and,” to all men who, superior to public opinion, are determined to concur in picking the pocket of the public of £6000, reasons in abundance will be furnished: by these words, at any rate, if not to any other words in the same number; though for these same three situations, by no other person in these same words will be seen any reason at all, or so much as the shadow of one.
The Court of Exchequer—may not this judicatory have been looked to as a sort of prop to the pretence?—seeing that in this same court of Exchequer there have been in all days four judges, and now of late days, five: and, as this judicatory acts sometimes according to equity rules, as well as sometimes according to common-law rules (what a system!) this idea of it may (it was hoped) be suggested by the words “law and equity.” Good. But what will their three puisneships be the better for this precedent, such as it is? Of the business, the cognizance of which belongs in common to both, has the four-seated judicatory ever had—what shall we say, a fourth, an eighth, a tenth part—of that which the chancery court has had? Not it indeed. In other words, has it had a fourth, sixth, eighth, or tenth part of the confidence? Not it indeed.
2. Next, as to the “Secretary of Bankrupts” under the new court of Bankruptcy, as it is called. What is he to do? Answer: What the secretary of bankrupts under the “Chancellor’s court of Bankruptcy” used to do, will of course be the answer, if any answer be attempted to be given. And under the Chancellor’s court, what was it that the secretary of bankrupts used to do? In the business of procedure—of judicial procedure—absolutely nothing, if I can believe my eyes. Look over all the books that have ever been published on the subject of bankruptcy: what one piece of business will you see stated as being done by him? Not one. Under the denomination of registration would come the operation performed by him in relation to bankruptcy, if any operation relative to that business had been performed by him; and in that case it would fall to be performed by the functionaries instituted by the bill, under the name of registrars. But the case is, that no such operation was performed by him. What, then, is it that he used to do? If anything, that which a dishonest porter sometimes does at the house of a nobleman, when, for the confession that his lordship is at home, he exacts a fee for admission into his lordship’s presence.
If, then, by the learned lords and gentlemen concerned in the drawing up of the bill, it had been intended that, for this same salary of £1200 a-year, anything should be done, that which it was intended should be done by him would in this same bill have been specified; but in no part of it have I been able to find any such thing specified.
A curious enough circumstance is this. Under what title is it that this same £1200 a-year is given to him? Under the title of Secretary to the new court substituted to the Lord Chancellor’s court—namely, the so called “Court of Bankruptcy?” No; but under the title of “the Lord Chancellor’s secretary of bankrupts,” a denomination by which, in this bill, he is constituted a functionary of and in a judicatory, which by this same bill is put out of existence.
3. Then comes the secretary’s first clerk, salary £500; and for this same £500, what is it he is to do? Answer: Help his master while doing nothing.
4. Lastly comes this same secretary’s second clerk. And what is he to do? Answer: Help his master and his fellow-servant while they two are doing nothing.
Meantime, as to this part of the business, one thing there is that fills me with astonishment. Money matters are all these. Mention of them—where is it to be found? In the bill brought into the House of Lords, and printed for the use of the House of Lords. Where is it that it is not to be found? In the bill moved for, that brought into the House of Commons, and printed for the use of the House of Commons. At the moment at which I am writing, no provision is there for this part of the expense. Provision? No; nor so much as any the least intimation of any expense which there was to be. Everything of the sort remains to be introduced in the form of an amendment. Of this manœuvre, what was the object? The answer I must leave to those who are conversant with parliamentary manœuvres; to me it is a perfect mystery.
A money bill—a money bill, in effect as well as form—a money bill, with all the money clauses, the sums not left in blank, but specified—brought into the House of Lords; into that branch of the constitution in whom the exercise of any such power is a violation of the declared principles of that same constitution: those same clauses not to be found, any one of them, in the bill brought into the House of Commons—in the bill brought into the only house which is competent to the insertion of them: this same House of Commons’ Bill being, at the same time, in the wording, in all other particulars, identical with it; save and except § 18 and 42, nothing corresponding to which has place in the Lords’ Bill: though there is not, in either of them, anything that could constitute an objection to its being there.
Mark now the considerations, which in the mind of the fundator incipiens (to judge from all appearances) gave birth to the financial part of the measure; mark well the order in which they appear to have presented themselves. Matter of the existing grievance, the enormous multitude of the existing official situations, and thence the enormous bulk of the aggregate mass of emolument flowing from them. These sources of emolument being determined to be extinguished, and with them the emolument itself, now comes a problem to this effect: what is the maximum of the mass of emolument, which, consistently with the rules of prudence, can, on the most plausible grounds that can be found, be established in lieu of it? Such being the question,—for answer to it, presented themselves the several names of offices, now existing on this part of the field of judicature,—“so many there are of us,” said they—“so many pegs you will see, on which, under the new arrangements, a number, more or less considerable, of new offices—one, two, and so on, as far as eight—may be hung; with salaries, raised, each of them, to the greatest height, which there can be any reasonable hope that the public will endure the weight of: and whereas, in the case of the existing system of the hats hung upon the pegs, the number is so great, and the aggregate of the expense consequently so great—hence it is, that under the new system, to the several pegs, with the comparatively small number of hats hanging on them, may, without scandal, be attached (it is hoped) a mass of emolument much greater than any which, under the existing system, has been attached to any one of the situations belonging to this part of the field of judicature. These matters—these matters of primary—not to say of sole—importance—being settled, the next question (it might seem) would naturally be—what are the functions which it may be proper to allot to these several official persons?—to attach to these several official situations?
But, to these same questions, the answer, if given, would be tiresome to the reader, still more so to the draughtsman, and, not impossibly, calling upon him for attainments, for which he might rummage his mind longer than would be agreeable to him, before he found them: and thus it was that the salaries were left to stand upon no better ground than what has been seen. Such, as will be seen, the number of these pegs, all of them hollow and empty. On the surface, the name of an office; beneath it—within it—functions, none: “a beggarly account of empty boxes.”
These same sweets of office (the salaries) being thus as yet in petto, remain to be brought upon table in the sort of charger styled an amendment. In addition to this amendment, or string of amendments, or rather in lieu of some of them, one other amendment, or string of amendments, I would venture to propose. Instead of being wasted upon three logs, designated by the style and title of “other judges”—as if for the purpose of standing in the way of the one only efficient judge styled the chief judge,—let the £6000 a-year be sans façon put at once into the pocket of their creator and patron designatus the noble and learned father and author of the measure. Yes: seriously it is—yea, in sober sadness—that I come forward with these amendments. Waste of money, the same: but from the list of the public functionaries, of whose emoluments the matter of corruption is constituted, three would thus be struck off: and, what to so many thousands of unhappy and legally plundered debtors and creditors is still more sensibly important, so many instruments of certain delay and probable misdecision, and exemption from responsibility, annihilated.
Thus manifest are now the tokens of self-conscious guilt, which have betrayed themselves in the face of the measure. In an ordinary case, the sums are left in blank; left to be filled up in the committee. Even this is bad practice; and bad practice recurred to, not without a correspondent bad purpose. For, how many are the cases, where the sums belonging to the measure constitute the vital part of it; insomuch, that let the sums be so and so, the measure is a right and proper one; if so much more, a wrong and indefensible one. What, then, would be the proper course? Answer: To put figures in every instance—a general understanding having place, as at present, that in a certain stage of the business the propriety of this will come under discussion.
So much for ordinary practice.
But, in the present case, what is the course taken? Not merely are the sums left in blank, but the sections (16 in number,) of which the sums in question are the subject-matter, have not, any one of them, a place in the bill, as printed by order of the Honourable House. So that now, on Tuesday October the 4th (the day to which, after a struggle to prevent adjournment, adjournment was made of it,) this part—the vital part—of it—the most manifestly and flagrantly objectionable part of it—will not be before the House.
Yet, for information thus indispensable, a succedaneum was at any rate to be found. And this succedaneum—what was it? A verbal statement by the Attorney-General: against misconception, against misrecollection, no security. Time requisite for consideration thus denied; and, for this miserable advantage, such as it is, the course taken so extraordinary—not to say (though so I should expect to find it) unprecedented.
II. So much for expense to public: of expense to suitors, a little further on. Now as to delay; after noting, en passant, that of delay, expense to suitors is an accompaniment inseparable.
Mark here too the sort of relation between promise and performance. Promise, delay minimized; performance, by addition made to number of stages of jurisdiction, not to speak of other causes, delay more than doubled: to the two stages found in existence, three others added: and note—that, while in each stage it is only in a retail way that delay is produced,—it is in a wholesale way that, where an additional stage of jurisdiction is the engine, this nuisance is manufactured.
To come to particulars: stages found in existence, two:—
1. Immediate judicatories, the courts held (all upon the same stage) by the existing seventy commissioners:
2. Appellate judicatory, the court held by the Lord Chancellor.
These stages, the only ones: from Chancellor to House of Lords, appeal none.*
Stages additional erected by the bill, three; total number, five: they here follow altogether; ascendendo, as before:—
1. Immediate judicatory, court held by one commissioner. See § 6, 7.
2. Judicatories next above that—say appellate judicatories of the first, meaning the lowest, order; two courts, styled Subdivision courts, held by some three (quere, what three?) out of the six commissioners above mentioned. Court appealed from, the six courts constituted by the six commissioners, each acting singly, as above. See § 6, 7.
3. Appellate judicatory of the second order, the judicatory of which the style and title is “the Court of Bankruptcy,”—with its four judges, as above; but under the name of Court of Review; courts appealed from, the two subdivision courts just mentioned. See § 2.
4. Appellate judicatory of the third order, the court held by the Lord Chancellor: court appealed from, the said court of bankruptcy, under the name of the court of review. See § 3.
5. Appellate judicatory of the fourth order, the court composed of the House of Lords: court appealed from, the court held by the Lord Chancellor. See § 37.
III. Lastly, as to uncertainty. Promise, minimization of it: performance, augmentation: maximization, the magnitude of which bids defiance to all bounds. On this head, matter for a volume might be found; a few specimens may (it is hoped) suffice; at any rate, they will exhibit as much as, perhaps more than, will be found endurable.
1. Under the head of delay, mention has just been made of the Immediate Court, held by a singly-seated commissioner, as constituting the first stage. But this same first stage is wrapt up in a thick cloud.
In § 6, it is stated, and without room for doubt, that of the six commissioners therein mentioned, every one may sit and act by himself; and so likewise in and by the next § 7; and thus we have a sort of promise or shadow of six single-seated judicatories. But these same six single-seated judicatories, supposing them to have existence, who can say how many of them, and at what time or times respectively, they shall be in existence? Look here to the text. In and by § 6, it is provided, that “the six Commissioners may be formed into two Subdivision Courts;” and this provision stands before that by which authority is given to them to act singly. Now then, if and when of these six functionaries are formed two courts, each court with three of the six in it, how many will there be left to act in single-seatedness? And in what cases, and on what occasions, will they so act?
“The said six commissioners may be formed into two subdivision courts,” says § 6—“two subdivision courts, consisting of three commissioners for each court.” Well then, these same two subdivision courts—by whom, at what time or times, in what manner—by means of what written instrument—are they to be formed? In regard to each of these same six commissioners, in whom shall be the determination—at what time and times he shall or may be acting in single-seatedness—at what time and times in triple-seatedness, in company with two, and which two of his colleagues, in a subdivision court?
What a source of uncertainty all this!—and moreover, along with and by means of the uncertainty, what a source of corruption and intrigue!
When the assets amount to half a million, and a single debt to a tenth or a fifth of that sum, what intriguing to get the case brought under the cognizance of this or that commissioner, foreknown to be, or, for the purpose, made to be, favourable! In the existing three-seated, four-seated, or five-seated judicatories, as it may be, corruption in this form can scarcely have been practicable. By the single-seatedness it may be seen how, in this case, it may be let in. By the single-seatedness? True: but against single-seatedness no objection is thus formed; for not without the help of the power of choice, left thus arbitrary, and the exercise of it thus unscrutable, as above, can corruption insinuate itself.
Note how the cloud thickens.—Subdivision courts: yes; subdivision is the word. By this word we are sent of course to look for the word division: by the sort of court called a subdivision court, for another sort of court called a division court; by the mention thus made of these two parts, for the whole, of which they are parts. Look ever so long, no such thing should we find. Even if, instead of subdivision court, the appellative were a division court, still we should be sent by it to look for the whole of which division had been made.
Actual division court decidedly and certainly established, none: but a sort of potential division court, in nubibus, hanging over the field, in the clouds, in the capacity of being brought into existence, is this: “The said six commissioners,” says § 6, as above, “may be formed into two subdivision courts, consisting of three commissioners for each court.” Now then, for and during any length of time whatsoever, suppose them to remain not thus formed: are they to remain idle? No; they constitute a court, of which no subdivision nor yet division has as yet been made, nor perhaps may ever be made: here then we have our lost sheep—the division court we were looking for. In this view of the matter, the division court (it should seem) is the actual court, to which, though only by implication, existence is given, in the first instance: potential courts latent—nothing more, the two subdivision courts; for, be the object what it may, existence it must have, before it can be divided: much more, before it can be subdivided.
Another puzzle. According to this same section 6, two, and no other, is the number of the subdivision courts, into which the six commissioners are to be “formed.” But now comes the very next section (§ 7) by which they are made formable into a court or courts containing respectively any other number not greater than six. For (says the bill) “In every bankruptcy, it shall and may be lawful for any one or more of the said six commissioners to have, perform, and execute all the powers, duties, and authorities by any act or acts of parliament now in force vested in commissioners of bankrupt, in all respects as if . . . . . appointed . . . . . by a separate commission under the great seal.”
Now for a simple amendment; which made, so far as regards the number of these functionaries, everything would be as it should be. After the words “any one,” dele the words “or more;” and thereafter, after the words “in all respects as if,” insert the word he, and dele the words, “or any one or more of them.” Thus should we have single seatedness, with the institution itself in all its utility, and the designation of it in all its intelligibility.
Thus, moreover, would be removed the cloud raised in § 6, by the talk about “references or adjournments,” and “sickness, or other sufficient cause;”—“references and adjournments,” which are to be made by a single commissioner, “unless” he, the maker thereof, “shall think fit otherwise to direct.” Yes, in the very act of doing the thing in one way, the man who is doing it is to “direct”—whom?—himself, or somebody else, not mentioned—somebody else (guess who!) to do it in a different way.
At Westminster school, some three or four and seventy years ago, I remember we used to be taught to make in Latin certain socalled nonsense verses, as a preparatory exercise for enabling us, one day, to make verses that should wear the appearance of sense. In the present instance, it looks as if the noble and learned schoolmaster, having in the course of his studies on education heard of this, was sending himself abroad to learn, by exercising himself in the art of making nonsense laws, how, one day, in God’s own good time, to make sense laws.
But here the examination of this exercise must end, or at least pause: for, if continued to the end of the bill in the same strain, such is the length of the exercise, that a volume—who can say of what size?—might be occupied by the examination of it.
Now for an argument, which is nothing to the purpose:—“By the abolition of these seventy commissionerships, I lose so much patronage: for, of the patronage substituted, the value is not so great as of that which I give up.”
Answers, these:—1. If you did your duty, the patronage would not be worth anything to you. If you did your duty, you would, in the instance of each situation, fill it with that man who, in your judgment, was most fit for it: and, against that man’s being most fit for it, by whose filling it you would get anything, the chances are as infinity to one.
2. Supposing, however, that the situations in question are money’s worth to you, and that, for indemnifying you for the loss of this money’s worth, you ought to receive a compensation, patronage is not the shape in which it ought to be given to you: the shape should be—that of an equivalent addition made to the salary attached to the office. Why this shape? Answer: Because, in addition to the evil produced by the institution of these worse than useless offices,—so far as regards emolument, to put you in possession of a quantity of emolument to a given amount, will cost the public more, if given in the patronage shape, than it will if given in the official-salary shape.
3. As to patronage, under the generally established system, taken as it is, so far from affording a security against unfitness, it operates as a security for unfitness: for, be the object of the patron’s bounty who he may, the less fit he is for providing subsistence for himself in and by any other profit-seeking occupation, the more pressing is the need he has of the relief that would be afforded him by the official situation, whatever it be.
4. But, not content with the profit of interestedness, nothing will serve you, but you must have the praise of disinterestedness. Would you deserve it? Every penny, then, must you give up, of this useless—this so much worse than useless—patronage. This praise of disinterestedness, what is it that you want it for? Only that, under favour of the delusion spread by it, you may obtain the profit of interestedness to the greatest amount possible.
Not that it is any opinion of mine, that you ought to be made to act as if you were disinterested: not that I want you to be made to lose any part of the emolument lawfully and honestly attached to the situation to which you have given your acceptance. It would be against a fixed principle of mine—the disappointment-preventing, or (as far as prevention is impracticable) -minimizing principle:—that all-comforting principle—firstborn of the greatest-happiness principle:—that principle which affords the only reason (nor can there be a more substantial one) for securing to every man his own, whatever it may be—black men and white men, in a state of slavery, excepted.
Now as to expense to suitors. To this topic reference was made, in speaking of the expense to the public. Alas, poor suitors! correspondent to the disinterestedness of the noble and learned arbiter of your fate, is the tenderness of the mercies, to which, on this occasion, you are consigned.
Within the all-enveloping cover of the rule-and-order-making power, which you have seen, is concealed the power of plunderage without stint: nothing legislated upon; accordingly, everything left to be legislated upon: and whether, by a noble and learned person, whose relish for fees has been so conspicuously self-declared, any labour or ingenuity, which can contribute to convey to the watering mouths a treat so delicious, is likely to be left unemployed, is a question, the answer to which may be left to any person whose patience has carried him thus far in the perusal of these pages.
Pre-eminently delightful to the eyes of a learned lord or gentleman is the case, where, within his grasp, there exists already a fund to draw upon. In this predicament are in general the cases, by which the forty millions of pounds, or thereabouts, now in the court of chancery, have been placed in it. When the hands in which is lodged the money composing the remuneration for the labours and merits of learned lords and gentlemen, official and professional, are those of trustees—persons to whom no part of it is understood to belong,—in this state of things, at parting with it, no such pang is, generally speaking, felt, as is felt by those in whose case the money taken out of their pockets is their own: always excepted the case, in so far as it has place, where the trustee, out of the money placed in his hands for the benefit of others, makes money for himself. At each fee, under the name of costs, pumped out of him, a party or proprietor of the money does feel a pang, and, as ruin approaches, may at every stroke of the pump give a squeak: the fund has no feeling, and takes it all in patience.
In an ordinary case,—not a farthing, but in the shape of a fee, is capable of producing a denial of justice: and such has been the effect of it, in every instance in which the farthing has been unobtainable: and such it has been, in the instance of every man, from whom, by the machinery of what is called justice, the uttermost farthing has been extracted.
In an ordinary case,—though one of the parties is always in a state of sufferance, another may be in a state of enjoyment: and in this state is every man, who, by the everready and never-failing assistance of learned lords and gentlemen, official and professional, keeps the money of another in his hands. But, in a case of bankruptcy, all parties, on both sides, are in a state of sufferance and affliction. In Bankruptcy court, accordingly, learned lords and learned gentlemen have, for their accommodation, this agreeable circumstance, namely, that from this part of the field of plunderage, no cry of denial of justice is wont to issue.
Out of this so convenient tank, how many horse-power is that of the pump, which the learned lord so skilled in hydraulics, will, on this occasion, put to use? To his own discretion has everything of this sort been left by him. But, eyes there are which are upon him, as he will see: and, to such objects, the eyes of succeeding honourable gentlemen are not likely to be quite so stone-blind, as at all times have been those of all their predecessors.
Now then for the fees which are provided by this act; that is to say, by the act passed by the Lords alone, and in a part thereof, of which the representatives of the people have not as yet (October 7) been allowed to see anything.
§ 41. For a fiat, in lieu of a commission of bankrupts, to the Lord Chancellor’s secretary of bankrupts, £10. Quære, by whom this money is to be paid? this is not mentioned.
§ 42. Fees to be paid—Quære, for what?—nor is this mentioned,—£15.
Person by whom it is to be paid, the official assignee: time, “immediately after the choice of assignees by the creditors . . . . . out of the first monies which shall come into his hands.” Quære, how are they to be got into them? Person to whom it is to be paid, the Accountant-General. Money taken out of the pockets of those afflicted persons for a commencement, and to a certainty, £25.
Now for other sums, not certain, nor ascertainable, which, by this their said Lordships’ bill, are destined to be taken out of those same pockets. First comes the sum of one pound. And for what, and how many times to be repeated? Answer who can: I, who am copying it, am utterly unable. The clause follows in these words:—
1. “For any sitting of the court of bankruptcy, or of any division judge* or commissioner thereof, [other than the sitting at which any person may be adjudged a bankrupt,]
2. “or any sitting for the choice of assignees,
3. “or any sitting for receiving proofs of debt prior to such choice,
4. “or any sitting at which such bankrupt shall pass his or her examination,
5. “or any sitting at which any dividend shall be declared,
6. “or any sitting at which the bankrupt’s certificate shall be signed by the commissioners.”
Doubts pour in here in torrents. The one pound,—is it, during the whole of the proceeding in the case of the bankrupt in question, to be paid once, and once only?—or is it to be repeated? The figures are here inserted for the purpose of expressing the number of the times at which, according to my conception, it was intended to be repeated.
Then, as to the word other? The brackets, here inserted, show how far, according to my conception, the application of it was meant to be carried; but, there is nothing that I can see, that can prevent its being carried on to the end; namely, to the end of the clause here distinguished by figure 6.
Then, as to the application and import of this important word any. The requisition made by it,—will it be satisfied by one pound, once paid; namely, for the sitting, which, for the purpose in question, is, on each occasion mentioned?—or, on each such occasion, is it to be multiplied by the number of the sittings? On this last interpretation the meaning, at any rate the effect, of the word any, is the same as that of the word every.†
The stock of uncertainty and unintelligibility afforded by this same 42d section is not yet exhausted. For, here comes a mass of self-contradicting nonsense, a parallel to which could scarcely be found, even in the whole statute book. In line 14 of this section stand the words that have been seen, to wit, “or any sitting at which any dividend shall be declared:” hereupon, in the very next line but one—namely, in line 16,—come these words—to wit, “and for every such sitting at which a dividend shall be declared, the sum of three pounds.” Now for a lesson in arithmetic. To the any one pound, add every three pounds; what will the sum be?
Nonsensical as it is, here at any rate may be seen one conclusion that may be deduced from it, and is incontrovertibly warranted by it. Here, then, for the purpose of giving increase to money poured into lawyers’ pockets, increase is given to expense—to factitious expense; and, for the purpose of this increase, increase given to delay likewise: so many sittings at each of which a dividend is declared, so many three pound fees. For this service rendered to the profession, at the expense of the afflicted, a premium offered to all those in whose power it is to earn it: this, in performance of the promise made in § 1—“that the rights . . . . . . be enforced with as little expense, delay, and uncertainty as possible.”
So much for these same fees and the pockets out of which they are to be pumped. But now what is it that is to be done with them? Short answer: Given to the noble and learned author of this bill, to do with them what the Duke of Newcastle claims a right to do with his own; that is to say, what he pleases. For the long answer see Lords’ bill, section 41. Person to whom they are to be paid, “the Lord Chancellor’s secretary of bankrupts—. . . . . paid . . . . to a separate account, to be entitled, the Secretary of Bankrupts’ Account:” and “all monies to be paid into the said account shall be subject to such general orders touching the payment in, investment, accounting for, and payment out of such monies, for the purpose hereinafter provided, as the Lord Chancellor shall think fit to prescribe.” There ends this 41st section.
By this provision, an instrument to the consideration of which the mind is unavoidably led is that, over which, when, into a certain court, money is to be paid, the money (it has been said) is told. The instrument is a gridiron: and the court is the court of Exchequer: meaning the court called the Receipt of the Exchequer. For the telling of these monies, what is it that his Lordship “may think fit to prescribe?” Animate instrument—animated by the £1200 a-year—animate instrument, part and parcel of his live stock, his above-mentioned secretary: this is already “settled;” but the inanimate instrument—part and parcel of his dead stock—this remains to be settled.
The gridiron, if that be the species of instrument employed for the business of this tellership—what shall the individual instrument be? Shall it be the one kept, as above, in the Exchequer, and from thence borrowed? or shall it be a bran new instrument kept for the purpose in the court of bankruptcy, under the care of the said Lord Chancellor’s said secretary of bankrupts?—in which case, with the help of a little improvement, à la mode de Brougham, it might moreover be made to serve for the telling of the forty millions which in some way or other are already at his Lordship’s disposal: and, in the mean time, till a proper gridiron can be made, might not that gridiron be borrowed, which, had he not forgotten it, a prophet of these days was to have broiled himself upon, and which cannot but remain clean as a penny, not having been put to its destined or any other known use?
But now as to Mr. Secretary—“the Lord Chancellor’s Secretary of Bankrupts”—I know not whether I have not his secretaryship’s pardon to beg. Somewhere before this (so I cannot but suspect) I spoke of him as having nothing to do. It seems now to me that he has a great deal to do—he has all this money—this mass of money to an unknown amount—which he is continually to be receiving, and which is by him to be paid “once a-week or oftener” (for the learned stomach cannot stay long,) “as the Lord Chancellor shall think fit to direct” . . . . “to a separate account to be entitled ‘the Secretary of Bankrupts’ Account.’ ”
What I have humbly proposed, as above, is, that of all the above-mentioned fees (of the receiving and disposing of which the sole occupation of his secretaryship seems to consist) not one should be torn from the afflicted persons interested: and should this my humble proposal be acceded to, this occupation of his secretaryship—this his sole occupation—would be gone.
Before parting with his secretaryship, one more curious circumstance in relation to him I cannot forbear noticing. Under what title is it that his £1200 a-year is thus given to him? Is it under the title of Secretary to the court of Bankrupts? No: but under the title of “the Lord Chancellor’s Secretary of Bankrupts.” But by this same bill, the court in which the Lord Chancellor at present takes cognizance of bankruptcy business, is suppressed, and the business of it transferred to that same bankruptcy court. He is therefore (as it should seem) a sort of amphibious animal, living in two media at once: and, in despite of a maxim of holy writ and common sense, serving two masters.
Before this topic of expense—expense by fees extorted from the already afflicted suitors—is dismissed, note well one circumstance, by which, were it the only one, the sort of feeling this measure was brought forth by and all along nursed, would be instructively indicated. Of the stock, or say fund, out of which these fees are to be drawn—namely, the aggregate amount of the assets got in by the assignees—what is the magnitude? Answer: A magnitude so variable, that while in some instances it has amounted to half a million or more, in others it has been, so small, that the fees thus destined to be extorted, would absorb the whole of it. Behold here how, by men in power, their fellow-men are operated upon and worked at as if they were deal boards: the money thought of—that, and nothing else: by men, themselves without feeling (without feeling for other men,) their fellow-men dealt with and operated upon as if they had none. Who shall say in how many instances (if this bill of the Lord Chancellor’s passes into a law,) in how many instances the whole of the bankrupt debtor’s property, instead of being divided among his creditors, will be snatched from them and put into the pockets of the said Lord Chancellor’s creatures.
But all this about the fund for fees is but a digression. It is high time to return. Speaking of the House of Commons’ bill, “everything, I said, is there left to be legislated upon.” To be legislated upon? and by whom? By whom but the noble and learned author of the bill. And, how and where does this appear? Answer: In the bill printed by order of the House of Lords.
Yes: to that instrument, which is the expression of the will of the House of Lords, and of the House of Lords alone—to that instrument have I been obliged to resort, that being the only instrument in which it is declared how it is, and by whom, that the money which belongs to the afflicted—to the insolvent debtors and their creditors—is to be disposed of.
Into two parcels is divided the money to be drawn from this so pre-eminently scanty source. Parcel the first—“fees . . . . such (says the bill, § 40) as are provided by this act:” Parcel the second—such (it continues) as are “set forth in any schedule of fees to be settled and allowed from time to time by the said Court of Review, with the approbation of the Lord Chancellor, and to be certified by them to both Houses of Parliament.” Mark well—“settled and allowed by the said Court of Review, with the approbation of the Lord Chancellor.” Of this presently.
Settled and allowed? And how settled and allowed? On the present occasion, in this § 40 of the Lords’ bill, this is not said. What is here settled is, by whom? By this we are sent upon the look-out to see how it is—that is to say, by instruments how denominated,—by these conjunct authorities other matters are settled. Turning to § 2, we find that what is there appointed to be done is to be done by “rules and regulations” to be made in pursuance thereof.
We are thus brought to these same rules and regulations, on which occasion I venture to assume, that the sort of instruments thus denominated, are meant to be the same with those which, in § 11, are denominated “rules and orders” for regulating the practice of the court of bankruptcy, and in § 22, by the word rules; though in this case without the word regulations or the word orders. Be they called what they may, now comes the question—by what authority are they to be made? Answer: On different occasions, by two different authorities: namely, on the one occasion (by § 11,) by the Court of Review, with the consent of the Lord Chancellor; on the other occasion (by § 22,) by the Chief and other Judges, “with the consent of the Lord Chancellor.” On the first of these two occasions, the subject-matter of regulation is unlimited, and all-comprehensive: in the other it is limited—confined to the nomination of official assignees.
Now for the difference between the two authorities; and the final cause of that same difference. The court of bankruptcy is the authority by which these same all-comprehensive rules and regulations, or say rules and orders, are to be made? Oh no: but the court of review. And why not by the court of bankruptcy? and why by the court of review? Why not by all four judges?—why by no more than three of them? and those three the three puisnes, styled by the somewhat whimsical title of “other judges?” Perfectly intelligible when once mentioned, though somewhat recondite reason, this:—namely, that by this means, with the convenience and benefit of secresy of procedure, of which presently, the noble and learned author of this bill might be enabled to savour the sweets of arbitrary power.
Not by the court of bankruptcy are these rules and regulations to be made, but by the court of review. And why not by the court of bankruptcy? Answer: Because, that in the court of bankruptcy there must be four judges—namely, “the chief judge and the three other judges.” And why by the court of review? Answer: Because (as per § 2) the said judges, or any three of them, shall and may form a court of review: any three of them; which three may, therefore, be the three puisnes.
Is it, then, for no reason, that on this occasion, when rules and regulations, or say rules and orders, are to be made, the chief judge is so carefully left out? Oh no: it was for a very important reason: it was to secure obsequiousness, and under and by virtue of such obsequiousness, with secresy, as above, for a common cloak (wrap-rascal—absit verbo invidia—was, at one time, the name of a species of large cloak,) to secure to his own noble and learned self, as above announced, the delight of savouring the sweets of arbitrary power (not forgetting fees.) The judge, who is thus left out, has no higher seat to look to: the three judges who are taken in, have each of them that same higher seat to look to: they are each of them in the case of a bishop of Gloucester or Oxford, with Canterbury and York in view; not to speak of those bishoprics, such as London and Winchester, which are also blessed with an extra portion of that mammon by which the gates of heaven are shut against the possessor.
To speak more particularly and plainly (for I wish to be understood:) in the three possessors of the £2000 a-year each, he beheld so many aspirants to the situation which affords £3000 a-year. A thousand a-year, though it be but in expectancy, being thus part and parcel of the premium for obsequiousness, for being, on all material occasions, (according to the so constantly pronounced formulary) “of the same opinion” subintellecto with my Lord Chancellor,—rebus sic stantibus, on any such material occasion, for the purpose of any practical conclusion and operation, can the existence of identity of opinion be regarded as exposed to doubts?
For producing this same identity, on different occasions, different instruments have the approbation of this our legislator: in the case of twelve men, who, be they what they may, are rendered infallible by being put into a box, the instrument, in addition to the box, is torture, in the case of the three men termed “other judges,” who must have eaten a hundred dinners in one or other of four great halls, and remained alive at least ten years after the last of those same hundred dinners. The instrument is £1000 a-year in expectancy: the £1000 a-year hanging in the air before the eyes of their respective minds, as does the New Jerusalem in the eyes of certain believers. In this latter case, the instrument is not in its nature quite so cogent as in the former case, but it is sufficiently effective for all practical purposes, and is to all parties a much more pleasant one.
Nor let it be forgotten, how variable are the members of the body, by whom, on different occasions, the several sets of rules and regulations, or say rules and orders, may be made, nor in what a degree on his Lordship’s will and pleasure the composition of this same body has been made by him, on each such occasion, to depend. They may be made (these rules and regulations) on one occasion, one set of them, by the said three other judges; on another occasion, by any such two of them as it may please his Lordship to choose, with the addition of the chief judge. On ordinary occasions, this will of course, for the reasons above mentioned, be the said three “other judges:” but on this or that extraordinary occasion, a case that may happen is—that of the three, one having disappointed expectation, and being on terms more or less rebellious with his creator, may run rusty, while the chief of the four creatures continues to be everything that can be desired.
Had his Lordship given to these his three puisnes the power of thus legislating by themselves, he would have had no pretence for having, on this all-comprehensive occasion, anything to do with them. Had he taken the power to himself alone, the disposition would have been too glaring, still more revolting, altogether in the teeth of precedent, and completely exposed to responsibility. Wrapping them up in the same cloak with himself, and that a cloak of secresy, he metamorphosed his mace into a wand, and the court of review into the den of Cacus.
And here, peradventure, in addition to the £6000 a-year patronage, may be seen a reason, in a certain sense, for the adding the three so much worse than needless and useless, and, in respect of number unprecedented, judges, to the one needful and exclusively customary one.
I have said,—in the teeth of precedent. For, not more filthy in the teeth of reason is the arrangement than in those of precedent: for, in what instance, on the occasion of the power exercised by the making rules and orders (as the phrase is) have the judges of any one of the courts called superior courts, found themselves under the necessity of obtaining the consent of any authority superordinate to their own? and in particular, to that which stands next above them?
The bag is now cut: and the cat—has she not been let out of it?
Now for a most curious mess of muddle-headedness. To save the brains of the reader from the rack, before the riddle I feel it necessary to put the solution: it is this:—In the draughtsman’s conception, the idea of the species of judge called a commissioner, is confounded with the idea of the entire of this newly-to-be-engrafted branch of the judiciary establishment—it is confounded with the idea of the whole, of which this same commissioner is a part. So much for the solution. Now for the riddle.
In § 38 of the Commons’ bill, behold how the commissioners are spoken of as being members of the court of bankruptcy, as well as the judges. “And be it enacted,” says the bill, “that the said judges and commissioners of the said court of bankruptcy shall, in all matters within their respective jurisdictions, have power to” do so and so. Had it stood as follows, that is to say, The said judges of the court of bankruptcy, and the said commissioners, shall, &c., the absurdity and confusion would not have had place. Was this a slip of the pen, an oversight of the clerk, or an error of the press?
To one or other of these causes it would, of course, have been to be ascribed, if with no more than the ordinary degree of inaptitude the bill had been penned. But in a bill, in which proofs of such never-till-now-exemplified inaptitude are so abundant, no absurdity can be too gross to be ascribed to the penner or penners of it.*
So much for the solution. Now for the riddle. This same court of bankruptcy,—who are to be the members of it? “The chief judge, and three other judges,” says § 1; and this, so far as it goes, is perfectly intelligible. But in the Lords’ bill, § 42, mention is made of a judge under the name of a division judge. Now, then, who is this same division judge?—what is the court in which he is to sit?—where is the bench on which he is to sit? None does the Lords’ bill, by whom he is created, mention: air—thin air—or a vacuum—a still thinner substratum—is the seat on which his sitting-part will have to rest. However, as he himself is but a fictitious entity,† not very severe (it is hoped) will be the suffering produced by the want of it.
When speaking of courts,—that of the two halves,—the subdivision courts,—the bill gives us no integer, no such court as a division court, having been instituted or mentioned by it, has been already noticed (see p. 569.) In this same 42d section, however, we have this same division judge.
Be he who he may, in his character of English judge, he will be a harpy,—and, being so a harpy, in addition to his wig and furred gown, he will have wings; with these wings he may keep fluttering over the court in which the chief judge and three “other judges” are sitting, waiting to receive, at the hands of his noble and learned creator, his existence: talking theology to the other inclusas animas superumque ad lumen ituras, of whom Virgil singeth. One day, let us hope,—one day, in his noble and learned creator’s own good time, we shall know who he is:—he will appear to us in the flesh:—some individual composed of flesh and blood, with two feet, and (save and except harpy’s feathers as above,) without feathers, we shall see, and hear, answering to the name of Mr. Division Judge. Shall he, for example, be Mr. Solicitor-General, by whom the said bill is admired so sincerely, defended so stoutly, and understood so perfectly?
In the first edition of the Commons’ bill, his Division-judgeship does not make his appearance. But in the second edition of that bill, which in so many points is so different from the first, he does: and in this second edition, the number of this section is not, as in the Lords’ bill, 42, but 48: so that, on maturer thoughts, this same division judge, in his above-mentioned state of imaginary, or say potential existence, the honourable and learned recommitters of the bill,—who, as above observed, understand manufacturing a bill of twenty-two folio pages, as the phrase is, in no time (Mr. Attorney-General, shall we say? and Mr. Solicitor-General—the chosen of the noble and learned creator?)—yes, in their maturer thoughts, this same division judge, though nothing upon earth do they give him to do, they are determined to have.
So much for the division judge, in § 42 of the Lords’ bill, and in 48 of the Commons’ bill, second edition, mentioned. Now for the commissioners, in those same places mentioned. The court of bankruptcy having been mentioned, what is the style and title given to him? Answer: Commissioner thereof: the court of bankruptcy being the last antecedent. Now, in what sense or senses, if commissioner thereof, is it possible he should be so? Two only, say I: namely, that of member thereof, and that of person commissioned thereby: which latter sense, by the bye, is but a strained one. Let any man produce to me a third sense that will bear examining,—erit mihi magnus Apollo.
Lastly, this same word or, by which, in its quality of conjunction copulative, the division judge and the commissioner are coupled together, in which of two senses is it to be understood? that which is called the disjunctive, or that which is called the subdisjunctive? If the disjunctive, then are there two sorts of these functionaries meant; if the subdisjunctive, then one only; these two names being each of them a name, by which that one person is denominated. In this latter case, instead of or, I should have written or say.
In a word, unless otherwise provided for, he would die of inanition; in which case, peace be to his manes! How then shall he be provided for? He must be metamorphosed into the sort of harpy called a sinecurist.
Now then, were it not for the solution given at the outset,—of everything, which, in the Commons’ bill, first edition, is said of these same commissioners, what would be the result? Answer: That, severally and collectively, these same commissioners, six in number, are and are not members of the court of bankruptcy, in such its quality, and in its quality of a court of review: and that they have, and have not, a right to sit in it.
Another curious operation to perform, and which, were there time for it, should on this present occasion be performed, is the determining in what cases the several commissioners, six in number, are authorized, each of them, to act singly, and in what other cases one is indeed authorized to act, but no otherwise than in conjunction with another fellow-commissioner, or two others, or others in some number greater than two. For the present, this operation must be dismissed: but, of this state of things, enough is said already to constitute a ground for the following practical conclusion, which, in the form of a question, will be deduced from it.
Comes accordingly the question, which, to the noble and learned author of this bill, presents itself for an answer. According to a position laid down in that speech of yours made from the bench, on declaring your resolution to swallow up your Vice-Chancellor and the Master of the Rolls, many-seatedness, and in particular triple-seatedness, is preferable to single-seatedness, in judicature: and accordingly, now, on the occasion of the instituting of a swarm of judicatories for taking cognizance of the bankruptcy business, for no other advantage than what you expect from the superior aptitude of many-seatedness in the case of the superior court, for no other advantage is it that you quadruple the expense: while, in the case of the court below it—in the case of the court of immediate jurisdiction in which all the business will be begun, and (so let us hope at least) by far the greatest part of it ended, you employ many-seatedness and single-seatedness promiscuously, as if, in regard to aptitude of judges, and consequent effect upon the rights and welfare of suitors, there was no difference.
If not promiscuously, but with distinction,—then, of the distinction which you make—giving the jurisdiction as you do, in some cases to the one, in other cases to the two, the three, the four, the five—what is the ground?
Now for a mass of entanglement—a very plica Polonica. Look to the court of review! look at its functions! What are they? Entangled in a most curious manner with those of every other in the cluster of five courts:—with those of the court of bankruptcy its superior, with those of its subordinate, the division court (supposing it to have existence)—with those of the two subdivision courts—with those of a commissioner acting singly—with those of the commissioners acting in courts composed of any number of them not exceeding the six—with those of the Lord Chancellor—and with those of the House of Lords. This same plica Polonica—what hand shall disentangle and unravel it? Answer this question who can: one sad answer may, and with but too well-grounded confidence, be made; namely, that by every touch of the comb, will be made to flow the blood of afflicted patients.
In the first edition of the Commons’ bill, the sections in which this same court of review is mentioned, are § 2, 3, 7, 9, 10, 11, 17, 21, 30, 32, 34, 35, 36, 37. Before these pages are at an end, I may perhaps print, one after another, the several clauses, in which mention of this same court of review is made. Meantime let it be noticed, that of all these sections it is in the last—it is in the 37th of the first edition of the Commons’ bill, that a finish is put to that unintelligibility, by which this bill may be seen so pre-eminently distinguished, from and above everything that ever went before it.
Secresy!—secresy in judicature! To this subject, and the anxiety betrayed by the noble and learned author of this bill, to envelope his own proceedings, and the proceedings of these his new judicatories, allusion has already been made, and explanation promised: for this explanation the time is now come.
Secresy!—secresy!—secresy in judicature, and to an unlimited extent, sought to be established by law, established in an act of parliament, now when reform of parliament is the order of the day! Am I awake?—can this be? Yes: here is the passage: and it is in this same § 7, and forms a tail to it,—not being of importance sufficient to form a section of itself:—“And the said subdivision courts may sit either in public or private, as they shall see fit, unless where it shall be otherwise provided by this act, or by the rules to be made as hereinafter mentioned.”
If, as hereinafter proposed, the two subdivision courts were blown away, this abomination, this practice and power copied from the Holy Inquisition court, would therefore be blown away along with it: for, on no one of these same six commissioners acting singly, is this power of unbridled maleficence conferred.
But no! these are not the only hands in which this right of doing wrong is lodged. So early as in the second section, it is established, and lodged in the hands of the four judges of the court of bankruptcy, or any three of them acting under the title of a court of review; “which,” says § 2, “shall always sit in public, save and except as may be otherwise directed by this act, or by the rules and regulations to be made in pursuance hereof.” Now, as to any direction to a different effect, no such direction is there in the act; but, as to direction to this same effect, an instance has, as above mentioned, just presented itself to my astonished eyes.
Secresy thus endeavoured to be made to envelope in its baneful covering this part of the field of judicial procedure! and this part that, in which, if not above all, at any rate above most others, the benefit of the light spread over it by publicity is greatest. “By publicity, (it has been said* ) the temple of justice adds to its other functions that of a school: a school of the highest order, where the most important branches of morality are enforced by the most impressive means: a theatre, in which the sports of the imagination give place to the more interesting exhibitions of real life. Sent thither by the self-regarding motive of curiosity, men imbibe, without intending it, and without being aware of it, a disposition to be influenced, more or less, by the social and tutelary motive, the love of justice. Without effort on their own parts, without effort and without merit on the part of their respective governments, they learn the chief part of what little they are permitted to learn (for the obligation of physical impossibility is still more irresistible than that of legal prohibition) of the state of the laws on which their fate depends.
No other subject-matter (the observation has been made to me, and it is my expectation that I shall find reason for acceding to it) no other subject-matter of judicial procedure is there, from attendance at which, to numbers of men in so large a proportion, information and warnings so useful might be derived: frauds, for example, of which premeditated bankruptcy has been the instrument—imprudences, by which, step by step, in the road of prodigality, men have been led to insolvency. As to the sittings of commissioners under the existing practice, they are public and open in appearance; but for the purpose of any such information as that, closed in effect: such is the hubbub and confusion;—the same commissioners acting in two or three commissions alternately, in the same minute.
Of all other judicial proceedings of any importance, reports are published: published—not only in books, but in newspapers: of these proceedings, in which money, by hundreds of thousands, is disposed of, scarce ever is any account visible or accessible.
True it is, that under the existing practice, at the commencement of the proceedings, a meeting—that is to say, of the commissioners,—a meeting, to which the name of private is given, has place: and at this stage of the proceedings, meetings, in the plural, is the word sometimes employed. But, this stage passed, there ends everything private, whatsoever was meant by the word.
Now, of this same privacy, what is the need or use? To this question, in no one of the works on the subject of bankruptcy, have I been able to find an answer. Is it, lest, were the proceedings public, from the affirmation made of the debt, the reputation of a solvent trader should receive injury?—is it, lest an insolvent, and about to be, and properly, declared bankrupt, should withdraw his person, or more or less of his property, out of the reach of the power of the court? Into the propriety of any such alleged justification, the present occasion does not call upon me to inquire. Sufficient is it to observe, that, under the existing practice, at this stage of the proceedings, whatsoever be the meaning or end in view of it, the privacy is at an end: after it come the meetings, to which is given the denomination of public meetings: and the one only judicatory, in which, by law or practice, authorization is given to privacy of procedure, is that of the commissioners, of whom there are either three, four, or five,—never fewer than three,—whereas by this bill, authorization is given to the sittings, as well of the four or three bankruptcy court judges, as to those of the commissioners, when (as per § 6) “formed” into their two subdivision courts.
Well: but this same Lord Brougham and Vaux that now is—this Henry Brougham that so lately was—and who at that time was among the best-tempered and best-humoured of mankind—can you lay your hand upon your heart, and deliberately pronounce him determined upon the exercise of acts of secret tyranny and cruelty—the most male-ficent of all the deeds of darkness? Oh no! no deliberate plan of tyranny; no hardness of heart; only a little giddiness of head, such as a sudden elevation is so apt to produce. “Father, forgive them! for they know not what they do.” Who has not heard of this heavenly prayer? and who, that has any remembrance of what Henry Brougham so lately was, could be so hard-hearted as to wish to deprive him of the benefit of it?
Not but that it does appear, that at the bottom of all this secresy, in which he was thus putting it into his power to envelope the proceedings, there was some sinister design, and, in particular, some fee-gathering design, for assuaging his hunger and thirst after—what shall we say?—not righteousness, but the mammon of unrighteousness; either this or else, that while penning these two sections, in the second of which he returns to the charge and care of secresy, he was thinking either of nothing at all, or of something which was nothing to the purpose: for example—London Universities—uncommunicated, or useless, under the nature of useful knowledge,—or hydrostatics,—or some theorem or problem of pure mathematics, for the instruction of the Royal Society; or, lastly, that, not caring to be at the trouble of so wearisome a job, as that of penning a paulo-post future act of the legislature, on the composition of which millions of money, and the fate of tens of thousands of men, women, and children, would every year have to depend,—he shot down the load upon the back of this or that one of his dependents, who was seen to be in possession of a pair of shoulders, but by accident happened not to have a head upon them.
Ah ministers! ministers! deep may be your regret, when you come to learn what the people think of you, for having, at such a price as the forcing through of this job, purchased the support of this one “indiscriminate defender of right and wrong,” by the indiscriminate utterance of truth and falsehood. Had he been left where you took him from, you would have had less amusement given you by personalities; but, by how much less would have been the majority against you in the House of Lords? Some of you—I know not how many of you—have (while writing this I hear) felt this same regret. I forgive you: may the people forgive you! Yes: but on no other condition, than that of your throwing Jonas overboard, or making him into a scapegoat, and sacrificing on the altar of justice, him by whom justice herself is endeavoured to be sacrificed—sacrificed to his own sinister interest.
The country kept thus long in a ferment—and for what? For no better a cause than the forcing through parliament this one job!
And you (says somebody to me)—and you, who are thus crying out against secresy—in your proposed codes, are there no instances in which you authorize it? Oh yes; instances there are to be sure: but in no instance is any such authorization given without special reasons: and few and narrow indeed are those instances; nor any one is there, in which the secresy has not its limits in respect of time; and that in such sort, that in no instance can the secresy be applied to any abusive purpose, but that the abuse will, sooner or later, be brought to light, and the authors subjected to condign punishment.
In every judicatory, of whatever, by any person concerned, is said or done in relation to the business, minutes will be taken, word for word, as in select committee of the House of Commons.
Now for the proposed amendments. To give them in terminis, and with application made to the text, would occupy more time and space than the exigency admits of.
For conveying a general conception of them, the following short heads may serve:—
1. Strike out all the superfluous situations; namely, in the court of bankruptcy, those of the three puisne judges—and those of the secretary, with his two clerks.
2. Whatsoever be the number of the commissioners, let them all, on every occasion, act singly.
3.Six being the number regarded as sufficient for the whole of the business, taken at its maximum—appoint, in the first instance, some smaller number, suppose three: with power, to each, to appoint a depute,* sitting (in the same manner as his principal!) by himself; and, during a probationary year, serving thus, as it were, as an apprentice; and, as such, serving without pay.
Reason 1st. No man who in his own opinion is not fit, will accept the office.
Between the several deputes, emulation will have place: each of them being a candidate for a commissionership; so many deputes, so many rival candidates.
The commissioner principal would see it to be his interest to depute whatsoever man appeared to him to be the fittest. Why? Because the greater the fitness of the depute, the greater his chance of being appointed commissioner.
2d. By appointing a depute, so fit as to be appointed commissioner, he would thus, and with honour, exercise patronage; if not so fit as another, he would have no patronage; if conspicuously unfit, instead of patronage, his lot would be—disgrace.
Behold here the securities afforded for appropriate aptitude. Confront with them those constituted, in § 1, by years of standing; and, in § 8, the nugatory formality of a vague generality oath.
4. For each commissioner, acting singly as above, whether principal or depute, let there be a registrar.
5. When a commissioner deputes a commissioner depute, as above, let him appoint a registrar depute, to act under that same commissioner depute; the registrar, in like manner, serving his probationary year gratis.
6. To take and keep an account of everything which is said or done in the course of the procedure,—such, in general conception, is the business of a registrar.
7. Let the appointments of the several principals be (as in the bill) by the King, but with special mention of its being at the recommendation of the Chancellor. The state of the case would not thus be different from what it is at present: but, by the declaration thus made of it, responsibility to public opinion would be fixed upon the Chancellor, much more strongly than at present.
8. No fee to be taken by any functionary, high or low, of either court, on any pretence: for every fee so received, punishment as for corruption or extortion, or both. A fee to a subordinate is still more mischievous than the same fee to his patron. The patron has it in his power, and the fee makes it his interest, to maximize the number of the occasions on which the fee shall be received; and this without being seen to do so: every fee allowed to be taken by any subordinate functionary, of whose situation the judge is patron, is a premium on the manufacture of expense by the judge: of expense, as also of delay; namely, for the purpose of magnifying the number of the occasions for fresh fees, and thence for increase to the expense. It is by the having given this shape to the remuneration, that the existing state of things, in respect to the judicial establishment and system of procedure, has been produced: a state of things, in and by which, to so vast a majority of the people, justice has been utterly denied; and, to all besides, sold at an extortious price.
9. Let lot determine the order in which the business, as it comes in, shall be carried before the commissioners; that is to say, which commissioners shall be the first to appoint a depute, which second, and so on. When each has thus appointed his depute, if ulterior bankruptcies remain to be taken cognizance of, let lot determine the option of appointing ulterior deputes, as before: and so toties quoties. On this plan, is there any danger of a superfluity? None whatever. By appointing any depute over and above the number likely to be found needful, no commissioner would have anything to gain: were he to do so, he would discredit himself, and disoblige the depute or deputes already appointed by him.
10. As to official assignees, let one such assignee be appointed with a salary, as in the case of a commissioner, with power to appoint deputes as need called for them, as above: or else, for every commissioner principal, as above, establish an official assignee principal. Of these two arrangements, the former is the most simple. Each such depute should be removable, at any time, instanter, by each one of his three superiors; namely, his principal, any commissioner under whom he had been officiating, and the bankruptcy court judge.
Without this arrangement, prodigious would be the difficulty of determining what is the number of these trustees necessary, and thence the aggregate amount of the pay necessary to be given to them: as also of obviating abuse, on the occasion of the intercourse, between these functionaries chosen by the government, and the assignees chosen by the individual parties.
As to the relation and intercourse between the official assignee and the non-official assignees, this is a subject naturally loaded with no small difficulty. If either can act without the other, the tying them in any way together cannot have any use: if neither can act without the other, no limit can be assigned to the delay with which the getting in of the assets, and the distribution of them, may be clogged. But, by the probationary system above proposed, this difficulty will at least be much lessened, if not entirely excluded; the natural causes of delay will be brought to view, and, by the view taken of them, the natural and appropriate remedies will be suggested.
Under the system established by the bill,—of the official assignees (of whom, from the second edition of the bill, it appears there are to be thirty, with emoluments, in relation to which not a syllable in that same second edition have I been able to find out the business,) the emoluments, in so far as constituted by fees, would, of course, receive every possible extension, as occasions happened to present themselves.
Under the here-proposed system, not only to the several situations of commissioner and official assignee, but to that of Lord Chancellor also, would this check upon abuse apply itself. More conspicuously than it would be otherwise, would his reputation be at stake upon the aptitude of the choice made by him of commissioners and official assignees. By the choice made by him of commissioners, and by every choice made of an unapt deputy, a commissioner would show that in choosing him, the Lord Chancellor had made a bad choice; and so in the case of an official assignee.
Proportionable to the efficiency of the security against abuse afforded by this arrangement, would of course be the aversion to it on the part of his Lordship; for, it would narrow the arbitrariness of his Lordship’s choice, and operate as a check upon the appointment of unfit and worthless dependents, flatterers, parasites, and other favourites.
A proposition, having for its end in view the optimizing the judicial establishment with its procedure, and maximizing the happiness of the people under it—a proposition which has for its end in view, the abolition of the sacrifice of the interest of all besides to the sinister interest of lawyers, along with that of the ruling few,—at the sound of a proposition so horrible, I behold learned and honourable gentlemen (how little less than all that the Honourable House contains!) all thrown into convulsions.
11. 9. Appeal, from every commissioner to the bankruptcy court judge. Jurisdiction to him,—immediate, none: none but this appellate.
12. Power to the judge, from time to time, to establish rules and orders; intimation given—that, wherever, on the face of it, the need of the rule is not plainly obvious,—reasons, annexed to it, are expected at his hands. No blockhead so stupid as not to be able to pen rules, for which no reason need be given:—while, by the thus imposed obligation of giving reasons,—by this obligation, though not of the sort which by jurists is called a perfect one, is established a test of aptitude, for the legislative function thus exercised; a test, the tendency of which is—to drive from the task all who are conscious of want of aptitude for it.
13. Power to Lord Chancellor, at any time to repeal, or say disallow (no matter which be the word,) any or all of the rules and orders so established. Power to him, at the same time, in relation to the subject-matter of them, to substitute new ones: on his part likewise, intimation that, in both cases, reasons are expected. Under the existing practice, be the rules and orders of a judicatory ever so mischievous, the mischief is without remedy: without remedy applicable by any hands other than those of parliament.
By this means, responsibility is fixed entire:—in the first instance, upon the bankruptcy court judge; then, after him, upon the Lord Chancellor: whereas, were they to concur in the establishment of the several rules and orders, the responsibility would be divided, and, by the division, greatly weakened, not to say destroyed.
14. All these rules and orders, as well those of the Lord Chancellor, as above, as those of the bankruptcy court judge, let them be certified to the two Houses; and by the House of Commons printed, of course, with the other papers, for the use of the members; with additional copies of the same impression to be exposed to sale.
The cheapest way would be to print, at once, under the care of the functionary by whom these same rules and orders were made, the whole number of copies necessary for the use of the members of both Houses, and for sale; one copy, authenticated by the maker’s signature, being transmitted to each House; notice thereof being at the same time published gratis in the several newspapers.
15. As to salaries, let not any one of them commence till the business of the court in which they are to be earned has commenced; commenced, in each instance, by the actual appearance of a suitor in that same court.—Under the bill as it stands, “this act,” it is said, “shall take effect from and after the passing thereof, as to the appointment of the judges and other officers hereby authorized; and as to all other matters and things, from and after the eleventh day of January next.”
Gloria Patri! Glory to the noble and learned father of this bill! To secure the payment of the salaries, nothing is there that is necessary to be done for them! Under this act, let any man, whose patience has carried him through the foregoing observations, and in particular, those under the head of uncertainty, judge—whether the business, by which the salaries are required to be earned, would be able to stir a step, stuck so fast as it will have been seen to be, in the mire of nonsense.
16. At any rate, let the duration of the act be but temporary:—say three years. In the practice of parliament, a provision to this effect is, as everybody knows, in frequent use. Not many, surely, can have been the occasions, on which any stronger demand for it than on the present occasion, has had place.
This same principle of probationership—the applications made of it being, moreover, followed by choice made out of the probationers,—let it be considered how vast the extent is to which it is capable of being applied to the filling of official situations: and in the character of a security for the maximum of appropriate aptitude, and still more in the character of a security against the maximum of correspondent inaptitude,—let it be considered whether the beneficence of it be not correspondent to that same extent.
Proportioned to its efficiency in that character will of course be the horror inspired by it into the minds of all expected protégés, to whom their respective consciences present a certificate of inaptitude: item, into the minds of all expected patrons, to whom their respective consciences present a certificate of intended abuse of patronage.
In conclusion of this not as yet completed list of proposed amendments, comes now one word on the subject of four-seatedness.
Suppose the necessity of it, to the exclusion of single-seatedness, established as a principle,—behold the consequence. In case of single-seatedness, for a system of local judicatories embracing the whole kingdom, money enough (suppose it agreed) can be found; in case of four-seatedness, not: on this supposition, what is the consequence? That, by this artifice, accessible justice is impossibilized; factitious expense and delay, eternized. Still, as now, and so for everlasting, justice denied and sold—sold to the best bidder; for such is always the rule and the result: the largest purse is sure to carry it.*
This is the design of which I stand forth and hereby accuse the noble and learned head of the law. This is the problem, of which I accuse the noble mathematician of having proposed to himself, and, at the end of it, written Q. E. F.
As yet, so general, not to say universal, is the preference given to what is old and bad, how bad soever, to what is new and good, how good soever,—so generally current, even among well-informed men, the aphorism “too good to be practicable,”—that, the more firmly I am assured that the above proposed arrangements would, if adopted, be productive of the effects intended, and that, taking them in the mass, nothing rational can be adduced in opposition to them,—the more thoroughly am I assured, that in the existing House of Commons, reform-preaching as it is, all adoption of it is hopeless. Nor will it be less so, so long as the head of the law stands upon the shoulders upon which it stands at present.
Oh! grudge him not his pension of retreat! Oh no! anticipate it—make him a pont d’or, too long and too wide it cannot be—so he does but consent to pass over it.
And who then shall be his successor? Happily, of his name all mention is as needless, as to him it would be unpleasant; to him who, in nothing which on this subject has by this pen been written, has had any, the least participation, nor, perhaps, at this moment knows of the existence, or so much as of the design, of it.
Taught by Tacitus, this splendour I throw around him. Speaking of statues, “Præfulgebant,” says the Roman historian, if I do not misrecollect him—“præfulgebant Brutus et Cassius, eo quod non visebantur.”
Now as to fees. As to fees, the Lords’ bill said nothing: the Commons’ bill, in the first edition of it, as little: in the second edition, comes the list of fees. Why not till the second edition? Answer: Because, at the time of its being delivered in, the determination having been taken to burry the bill through both Houses, with a precipitation in such a case altogether without example, it was seen that all examination of it would thus be rendered the more assuredly impossible.
Obscurity here, as exquisite as ever: Of these lawyers’ sweetmeats—to suitors, pills so bitter—the list is divided into two schedules. Items, in schedule I. 10; in schedule II. 12. Sources from whence the precious matter is drawn—that is to say, operations and written instruments,—in eight of the twelve items of the second schedule, upon the face of them, the same as in the first. In three of those eight instances, for one and the same operation, the fee in the second schedule is, as above, different from what it is in the first. Of course (reason never having as yet been able to find its way into an act of parliament)—for no one of all these differences is any reason assigned: and as to the cause, for this also we are left to conjecture. As to the question, in which of the five courts instituted by the bill instead of two, the fees are to be paid, in schedule I. nothing is said: in schedule II. namely in item 3, mention is made of the court: it is “the court of review:” so likewise in item 6: in that instance, it is “a subdivision court.” Schedule I. bears for its title these words—“The first schedule of fees before referred to:”—referred to? where? this is not said. The title of schedule II. is—“The second schedule of fees before referred to:”—where referred to, is not said. Of this obscurity, the cause (it is true) lies in parliamentary practice—in the shapeless shape given to bills—the shape in which sin appeared to Milton: division none; object of reference, accordingly, none: to the noble or honourable and learned draughtsman, or draughtsmen, all that can be justly imputed is—the advantage taken of the obscurity, and the confusion produced by it.
In this stygian darkness, one thing alone is clear: and that is the determination to maximize the weight of the burthen heaped upon the afflicted.
Now for proof. Of fees, in the instance of which it is the interest of those to whom the power is by this bill given, to give increase to the number of the occasions on which they are received, or to the quantity of the matter in proportion to which the amount of the fee receives increase, behold the seven examples following:—
A word here, as to the instrument here denominated order. In these two cases, is it the same thing, or a different thing? No bad subject-matter for litiscontestation this;—that is to say, should the fee-gatherer of any one of the five courts other than the court of review, claim a fee to this amount, for an order thereof, which is not an order for hearing.
Note—that, for every order, there will of course be a previous minute thereof.
Note now the fees, of which, (they being payable on the occasion of a written instrument exhibited,) the amount will increase with the number of the words in each such instrument, as well as with the number of the instruments, which can be contrived to be elicited: contrived, as above, by rules and orders of the Lord Chancellor and his confederates, the three puisnes, or by the practice of the judge or judges of the several courts, in or by which these instruments are respectively exhibited.
In these three halfpence, behold the premium which so many learned persons, of whom one is noble, and divers and sundry others honourable, are giving themselves, for every ninety words they can contrive to get put into these several written instruments. Taken by itself, this sum, three halfpence, is no great matter: but, many littles (says the proverb) make a mickle; and four of these littles constitute more than many a debtor or creditor has for a day’s sustenance: and, when taken from him, will deprive him of it.
Here presents itself a puzzle:—This anxiety to place the load on the shoulders of the successful party, whence comes it? this party, according to every natural presumption, will be the party in the right: and, in the mind of every man, this presumption will be the stronger, the higher his opinion is of the aptitude of the judicatory by which this same thing called an issue is to be tried; the judicatory—that is to say, in this case, a jury: and, in the opinion of the noble and learned author of this bill, how much lower than the seventh heaven is the place occupied by a jury, of what sort of men soever composed, so there be twelve of them, and the twelve put all of them into a box? This penalty, why thus imposed upon a man for having been, by a jury, pronounced to be in the right?
Then as to pockets:—the pocket, or pockets, into which this same £2 is to find its way; to find its way—in the first place immediately,—in the next place, ultimately: where are these same pockets—whose are they to be? Be this as it may, the court is in this case the court of review, and the judge, before whom the issue is to be tried, is “one of the judges thereof:” so says § 4 of this second edition of the Commons’ bill.
Now, then, to what purpose other than the fee-gathering purpose, is organized the complication produced by the mention thus made of the word issue? Can any bounds be assigned to the amount of the property, in relation to which, in the ordinary course of things, in every day’s practice, questions of fact have been decided upon by the existing commissioners, and will have to be decided upon by the new commissioners, and without this predatory formality of sending the question to be tried by an issue? If in those instances the mode employed in determining this same question of fact is a proper and sufficient one,—how can it be otherwise than sufficient, in any of those instances in which these learned judges are authorized to load the suitors with the burthen, and their own pockets with the benefit, of this tax? Then again—in the case in question, is the established fiction to be employed?—the fiction of a feigned action in a court of common law, with the fees, the expense, and the delay attached to it? For the shutting the door against this money-snatching lie, so regularly told by judges and their accomplices, I see no promise in this bill: nor, to my recollection, has the door been shut against it by any act of parliament. Were the practice a common one, the abomination constituted by the chancery and so-called equity proceedings, could not, even by the so-much-too-patient people, have been thus long suffered.
But, of the twelve good men and true, with the burthen imposed on them as well as on the suitors—where, in this case (not to speak of other cases,) is the need, not to speak of use? True it is, above all price is the institution of a jury: and that on two distinct and widely different accounts. One is—the publicity it has been the means of securing to all proceedings in which it has place; the other is—the veto, with which, at the price of submitting to torture and committing perjury, it enables the people, to so great an extent, to paralyze tyrannical and liberticide laws and judicial practice. But, on which of these two properties will the noble and learned author of the bill lay his finger, as being, on the present occasion (not to speak of former occasions,) the property by which the institution has been recommended to his favour? and that with such effect, as to have produced this his determination to force it into this branch of business, to which it has hitherto been almost, if not quite, a stranger? Thus to force it in, and thereby to put this additional instrument of evil into the hands of every malâ fide suitor—every dishonest suitor, who, knowing himsel to be in the wrong, trusts to the relative and comparative indigence of an opponent, for his success? Assuredly to neither of the positions, by which these two properties are pronounced beneficial, will he subscribe: which being the case, should he venture to attempt a justification of this arrangement, he will find himself reduced to his old aphorism—namely, that, provided they be in number twelve, and all twelve put into a box in a chamber called a court of justice (not a box in the Operahouse)—men, no one of whom had ever been in a court of judicature in his life, will understand the business of judicature better than a man who has passed half his life in the practice of it.*
Here follows an extract from the self-published speech of Henry Brougham, Esq., spoken in Honourable House, February the 7th, 1828, on moving the Local Judicatory Bill:—
Page 16.—“There are two observations, sir, which I have to make, relative to the judges generally, and which I may as well state now I am upon that subject. I highly approve of paying those learned persons by salaries, and not by fees, as a general principle; but so long as it is the practice not to promote the judges, which I deem essential to the independence of the bench, and so long as the door is thus closed to all ambition, so long must we find a tendency in them, as in all men arrived at their resting-place, to become less strenuous in their exertions than they would be if some little stimulus† were applied to them. They have an irksome and an arduous duty to perform; and if no motive be held out to them, the natural consequence must be, as long as men are men, that they will have a disposition, growing with their years, to do as little as possible.
“I, therefore, would hold out an inducement to them to labour vigorously, by allowing them a certain moderate amount of fees. I say a very moderate amount, a very small addition to their fixed salary, would operate as an incentive; and if this were thought expedient, it ought to be so ordered that such fees should not be in proportion to the length of a suit, or the number of its stages, but that the amount should be fixed and defined once for all, in each piece of business finally disposed of.‡
“I am quite aware that this mode of payment is not likely to meet with general support, especially with the support of the reformers of the law; but I give the suggestion as the result of long reflection,∥ which has produced a leaning in my mind towards some such plan. I throw out the matter for inquiry, as the fruit of actual observation,* and not from any fancy that I have in my own head.
“But I may also mention, that some friends of the highest rank and largest experience in the profession agree with me† in this point,—men who are among the soundest and most zealous supporters of reform in the courts of law.”
22d Feb. 1831, Mirror of Parliament, p. 409.—“The fourth principle,‡ and the last with which I shall trouble your Lordships at present, is to provide, where it is possible, (and I know not why it should not always be possible,) that judges should be remunerated for their labours. It relates to the remuneration of the judges and their subordinate officers, and they ought to be well remunerated, for if you would have men fit for the station of judges, the high and intellectual species of labour you expect from them ought to be amply, but not extravagantly, paid for. But what I say in point of principle, is, that, generally speaking, their remuneration ought to be by salary, and not by fees.”
So much for Mr. Brougham: come we now to Lord Brougham.—Mirror, 22d February 1831, p. 409.—“When you remunerate a judge by fees, according to the steps of procedure, you expose him to the temptation* of encouraging delay and expense in order to increase his own emoluments, and thus, in theory at least, if not in effect, you set interest in opposition to duty. To be sure, the judges in the higher courts are not apt to be swayed by such feelings from the straight line of their duty, whatever be the temptation.* They are men standing in a high and conspicuous station—men selected for their unspotted and unimpeachable integrity,† as well as for their great experience and general fitness‡for their exalted stations. They are likewise under the observation of a watchful public,∥ and a jealous Bar,§ and many of them have seats in either House of Parliament,¶ where they may be called upon, as responsible officers, to explain any part of their conduct which may be considered objectionable. Nevertheless, I am of opinion that public men, however high their character may be, ought not** to be placed in circumstances in which their interest comes in conflict with their duty. But even if it were certain that his interest would succumb to his duty, it is of the greatest importance to avoid placing a judge in a situation where he must be an object of jealousy and wary suspicion.*
“Such are the grounds on which I contend that even the higher judges,† who act under the eye of a watchful public and jealous Bar, and who are themselves men of learning and integrity, the least likely to be swayed by interested and selfish considerations,—that even they ought not to be placed in situations in which it is possible for any one to suspect that they can have any other object than that of the diligent, active, and impartial performance of their respective duties. Now, if this be the principle which ought to be kept in view, in reference to the higher judges, it is still more important to act upon it in reference to all inferior officers of justice. They do not stand upon such high and open ground—they are not so much in the view of the public—they are not so immediately responsible to parliament—and they ought to be emphatically excluded from such situations, even if the judges are not.
“There is one nicety in regard to this point which ought to be noticed. A judge doing his duty under the eye of the public will be induced to perform it well and diligently, since upon its due and diligent performance will depend his fame and estimation with the public, and this although he should be remunerated by a salary, and not by fees. But it is not always the same with inferior officers; and I am told that in Ireland, where an alteration similar to that which I propose relative to the judges has been made, some inconvenience has been felt from remunerating inferior officers by salaries instead of fees; for it is said that the consequence has been, that these officers are disposed to earn their salaries more easily than, and not so well as, formerly, and that they do not perform their duties so actively as if their remuneration depended on fees.
“But I think the true distinction may be made, and the line drawn somewhat in this direction. Those officers may be made dependent on fees altogether, where the multiplication of the fees shall not depend on their own discretion.”
Mirror, 22d February 1831, page 412.—“If those allowed to remain were made not dependent on fees, that would be an improvement.* ”
February 22, 1831, Mirror, p. 414.—In page 414, immediately before the mention of a bottom, mount up to the text, and therein, thus you will find it written:—“That noble and learned lord (Lord Eldon) laid a report on the table of this House respecting the taking of fees as salaries, in which, on examination, your Lordships will find some excellent principles laid down. Another report was presented to the House in the year 1798, in which the subject of fees is again taken up. It is there said, that no inquiry should be made whether a fee was claimed by established practice, but whether it was one which ought to be continued, and, if it was not, it should be cut off. Accordingly it was recommended that some of the fees then existing should be abolished, and amongst others those called copy-fees, as unfit to be continued. I might also instance the recommendation of the Chancery Commissioners in 1826—that fees, as salaries, in most cases should be done away with.”*
22d February 1831, Mirror, pp. 414, 415.—“Bottomed on these recommendations, I propose to your Lordships that no fees shall in future be taken by the masters, and I would have those of the clerks so regulated as never to exceed a fixed maximum;* and that, while all great temptation† to multiply forms, and create delay and expense to the suitors, are removed, enough will be left as a fair stimulus* to the speedy dispatch of business.”
22d February 1831, Mirror, p. 415.—“These high incomes from fees are not confined to the Masters. Their clerks also have incomes averaging about £1600 a-year each: two have as much as £2500. There is only one who has as little as £1000, because, in his case, I think very properly, it was refused to allow any fees to be taken. I must own I look upon those ‘gratuities,’† as they are called, as in every respect most objectionable. If I were not disposed to adopt a circuitous mode of describing those sums, as gratuities for administering what is called justice, I should be tempted to call them by that brief but expressive name by which the public would call them—‘bribes;’ and I shall be able satisfactorily to prove them such to your Lordships. These gratuities, or whatever other name they deserve, are not taken by the Masters; I wish they were, as then the high character and station of the Master would prevent the imputation, that for such things justice was sold in one of the highest of our courts. I could wish that, even in that case, the temptation did not exist; but, in practice, the taking them by the Master would not have the same bad effect as in the case of the Clerk.”
Page 417.—“You do not do so in other cases:—in the Court of King’s Bench, for instance, you pay the judges out of the consolidated fund. It may be correct to take these fees from the suitors, to levy on them all the expenses of the proceedings; it may be proper to make Chancery suitors pay the judge on the Bench, and pay the expenses of the Chancery Court; it may be right that the suitors should be taxed—all this I will admit;‡ but then I contend that no more should be taken from the pocket of the suitor than goes to pay the expense of the court and judge. Instead of this, however, I recommend you to make the judges of the Court of Chancery an annual ample allowance, and to discontinue the present clumsy unjust method of raising from the public and from the suitor three times as much as would pay the one Master and the one Master’s clerk, which are all that are necessary; while, by doing which, you reduce the Masters to the positive necessity, in these matters, of increasing the expenses:—not that I blame the Masters,—I blame the system.* My Lords, these form the bulk of the changes which I contemplate effecting; and I have only shortly to refer to what I hope will prove to be the benefits to result from their operation; and these are,—a better decision of causes—a more full possession by the creditors of bankrupts’ estates—a more speedy administration of justice to such creditors, and to all persons interested—a great diminution of business and delay in the Court or Chancery—and even eventually, probably, the saving of one of the judges in that court.”
22d February 1831, Mirror, p. 419.—“I beg to remind your Lordships that if I have cut off seventy places from those in the dispensation of the Lord Chancellor, I have also cut off £7000 or £8000†a-year from his emoluments: his emoluments arising from bankruptcy amounted to the sum of £7000 or £8000 a-year, every farthing of which will be cut off by the bill I am about to introduce.”
What has been seen, belongs to the account of regularly received benefits. Now as to the sort of benefit casually received, in the shape of patronage.
22d February 1831, Mirror, p. 417.—“First of all, there will be an immense reduction of official patronage; the scheme will convert seventy places, at present in the gift of the great seal, into ten.”
Page 418.—“But, if twelve be not too many—and they have to examine evidence, and perform many other important duties—and if two Masters* ought to be added, we shall cut off seventy offices, and have an increase of eleven. We shall cut off seventy small offices, and we shall have a remainder of eleven large ones.
“Your Lordships will not suppose that these two descriptions of offices are the same; for a man who delights in patronage, who wishes to indulge kindly feelings, seventy small offices are much more convenient* than eleven large ones. He can give away the seventy small ones among his friends; he can oblige† a colleague with one; but he cannot, he dares not, make a judge of a man who is incompetent;‡ be dares not go himself into a court, over which he has placed an unfit person.
“At present, the persons who are made judges are not made by favour; they are not obliged by the choice, and God forbid that they should hold their office by any other title.
“Thus, by this arrangement, seventy places are lopped off from the patronage of one of the ministers of the crown. Great diminution will also take place in other departments of the court, in addition to those which I have named; but, wishing to understate the advantages of the plan, rather than indulge in any exaggeration, I omit them for the present. By my propositions, delay will be abridged, decisions improved in quality, and their dispatch promoted, and expense will be considerably lessened, going even upon the bare supposition that nothing finds its way into the pockets of suitors, except the saving resulting from the abolition of fees.”
22d February 1831, Mirror, p. 418.—“It is quite clear that these parties, who are compelled to contribute the heavy expenses which arise out of chancery suits, are the last persons whose interests, as connected with the pecuniary cost of legal proceeding, has been yet consulted. The total saving in one branch of the bankrupt department will be £6000 a-year; the expenditure in the office of secretary of bankrupts being reduced from £9000 to £3000, and the whole reduction, in all departments connected with bankrupt affairs, after due provision for the new court, amounts to £26,000* a-year net saving of fees to suitors.”
22d February 1831, Mirror, p. 419.—“But it may be said—Oh! you are taking great pains to reform the expenditure of this court, but you are taking excellent care to keep the chancellorship to yourself, for nobody competent to fill the office will take it, with the reductions you have made in it.
“Very well: but is it to be supposed that I should have consented to give up the money arising from my professional exertions, and consent to support the burthen of the peerage, if I was not to take some fair chance of compensation? My Lords, I could not afford to do it. . . . . . .
“Permit me, however, to add, my Lords, first and last, once and for all, that if I suggested any increase of the emoluments of the Great Seal, I would rather add to the retiring pension† of the Lord Chancellor, than I would augment his working salary.”
14th October 1831, Mirror, p. 3053.—“The Lord Chancellor . . . . . . I cannot help observing, that I have heard with really great concern, that some imputations—I will not say imputations, for I hope I may consider myself above imputations,—but that some cavils* have been raised, out of the House, with respect to my motives in bringing forward this bill; and I regret the more sincerely that such cavils should have been raised, because they have been entertained by persons for whom I am bound to pay every respect, and particularly by one person—a gentleman of great learning, a personal friend of mine,—a man of extraordinary learning; the father of the English Bar, and the father of law reform.
“And he says, that the anxiety which I have evinced (and which I still feel) to pass this important measure, looks as if I were snatching at a patronage of £26,000 a-year, besides the patronage of the Great Seal.
“But this apprehension of my excellent friend arises, I must say, from a total ignorance of my nature, and I will add, too, of the provisions of this bill.†I have only substituted for a patronage of £35,000 a-year, one of £18,000.‡ In addition to this, I have surrendered the patronage of two sinecure places of £12,000 or £14,000∥per annum; so that, by the operation of this bill, there is a great diminution of the patronage and advantages now belonging to the Keeper of the Great Seal.”
Now again for a battle—a second battle—between the principle of single-seatedness and that of many-seatedness. Scene of action, the commissioners’ court: problem to be solved—in what cases, or say on the occasion of what sorts of business, is employment by this bill given to commissioners acting singly—in what other cases, or on the occasion of what other sorts of business, is employment given to commissioners in numbers greater than one,—that is to say, two to six inclusive. Sections on this occasion to be looked to, in the first edition, § 6, 7: so likewise in the second edition, in which they are the same, word for word.
1. Look at § 6. “The said six commissioners,” it says, “may be formed into two subdivision courts, consisting of three commissioners for each court:” after that, it says, “and all references or adjournments (meaning probably and adjournments) by a single commissioner to a subdivision court, by virtue of this act, shall be to the subdivision court to which he belongs, unless,” &c.
Here, if only by implication, at any rate beyond doubt, we have a single-seated court authorized.
2. Look now at § 7. “In every bankruptcy prosecuted in the said court of bankruptcy, it shall . . . . be lawful,” it says, “for any one or more of the said six commissioners” to do so and so: “Provided always, that no single commissioner shall have power to commit,” &c. “otherwise than,” &c.
Here, then, we see authorized single-seatedness, double-seatedness, treble-seatedness, quadruple-seatedness, quintuple-seatedness, and sextuple-seatedness: six different courts for the more effectual exclusion of “uncertainty,” as promised in the preamble.
3. Look now at § 13. “Every fiat prosecuted in the said court of bankruptcy shall be filed,” it says, “and entered of record in the said court, and shall thenceforth be a record of the said court: and it shall thereupon be lawful for any one or more of the commissioners thereof,”—(namely, of the court of bankruptcy, in which are these six commissioners, it seems, as well as the four judges)—“to proceed thereon in all respects as commissioners acting in the execution of a commission of bankrupt, save and except as such proceeding may be altered by virtue of this act.”*
4. Look to § 20. “It shall be lawful,” says the bill, “for any commissioner who shall make any adjudication of bankruptcy, to appoint two or more meetings instead of the three meetings directed by the said recited act,† for the bankrupt to surrender and conform, the last of which said meetings shall be in the forty-second day by the said act limited for his surrender.‡
5. Look to § 21. “In all cases,” says the bill, “in which power is by this act given to any one of the said commissioners to act, such power may . . . . be exercised by the said chief judge, or by any one of the said other judges: and where any such judge so acting would, in case he were a commissioner,* make any reference or adjournment to a subdivision court, such reference or adjournment shall be made by such judge to the court of review, instead of to a subdivision court.”
Here again may be seen single-seatedness; single-seatedness mentioned, many-seatedness not.
6. Look to § 22. Place and words the same in both editions. Subject-matter, official assignees. Here again may be seen, it is true, many-seatedness in all its nine degrees; but not the less true is it, that so also may be seen single-seatedness. “The proceeds in question,” the bill says, “shall . . . . be possessed and received” (possessed before they are received) “by such official assignee alone, save where it shall be otherwise directed by the said court of bankruptcy, or any judge or commissioner thereof.”†
7. Look to § 30. “Any one of the six commissioners may,” says the bill, “adjourn the examinations of any bankrupt or other person, to be taken either before a subdivision court or the court of review, or, if need be, before both courts in succession . . . . and may likewise adjourn the examination of a proof of debt, to be heard before a subdivision court; which said court shall proceed with such last-mentioned examination.”*
After that, in this same section, comes a proviso, “that in case, before the said commissioner or subdivision court, both parties . . . . consent to have the validity of any debt in dispute tried by a jury,” (which, by the bye, they will not do, unless they are egregiously misadvised,) “an issue shall be prepared, under the direction of the said commissioner or subdivision court, and sent for trial before the chief judge or one or more of the other judges; and if one party only applies for such issue, the said commissioner or subdivision court shall decide whether or not such trial shall be had, subject to an appeal as to such decision to the court of review.”†
Before this fruitful section is dismissed, another rather singular provision in it must not be left unnoticed. Not content with authorizing and requiring the judge or judges in question to “adjourn,” or say transfer, the matter in question to a judicatory, at his or their discretion; it authorizes and requires them respectively to do this favour to two judicatories in succession, one after another; thus producing the effect of an appeal, whether the parties, or any one of them, is desirous of it or no; in other words, although it be against the desires of all parties interested:—“Any one of the said six commissioners,” says the bill, as we have seen, “may adjourn the examination of any bankrupt or other person, to be taken either before a subdivision court or the court of review, or if need be, before both courts in succession, and may likewise adjourn the examination of a proof of debt to be heard before a subdivision court.”*
8. Look to § 31. “If such commissioner† or subdivision court,” says the bill, “shall determine any point of law or matter of equity, or decide on the refusal or admittance of evidence in the case of any disputed debt, such matter may be brought under review of the court of review by the party who thinks himself aggrieved, and the proof of the debt shall be suspended until such appeal shall be disposed of, and a sum not exceeding any expected dividend or dividends on the debt in dispute in such proof, may be set apart in the hands of the said accountant-general, until such decision be made; and in like manner there may be an appeal on the like matter of law or equity from the court of review to the Lord Chancellor.”‡
9. Look lastly to § 32. In and by this section, the crown may be seen put upon the aptitude of single-seatedness; and not absolutely and merely is its aptitude recognised, but also the comparative superiority of its aptitude, in comparison of triple-seatedness and quadruple-seatedness. Look on till you come to the words “one commissioner,” and then observe the feats which his commissionership is rendered capable of performing.∥
10. Look to § 40. No—the last preceding was not—this is—the concluding article:—the article by which a close is put to the list of the proofs given of the virtual recognition which, by the noble and learned advocate of many-seatedness, has thus been virtually made of the aptitude—not to say the superior aptitude—of single-seatedness. After what has just been seen, this progress (it must be acknowledged) is but an anticlimax: but the list—the whole list—having been undertaken to be given, will naturally have been expected to be seen, and without production of disappointment could not be left uncompleted.
This section has for its subject-matter the case where a bankruptcy, being by the act found lying under the cognizance of the existing commissioners, is transferred to that of the five new courts now instituted. To the six commissioners, each of them singly-seated, are (it will be seen) in and by this section, given the two powers following:—1. Power the first—“power to appoint,” says the bill “some one of the aforesaid official assignees to act with the existing assignees;” 2. Power the second—“power to direct,” says the bill, “the existing assignees to pay and deliver over to such official assignees” (in the plural) “all monies, &c.” Thus far the bill. But direction is one thing, compliance is another thing; and suppose that in consequence of such direction compliance has not place, what then is to be the result? Answer: Exactly that which for the remuneration of learned labour is to be desired. Motion will have to be made in the appropriate court, say the single-seated commissioner’s court—motion to show cause why the said monies, &c. are not so paid and delivered over: which motion, being there decided upon, may or may not be carried upwards, or upwards and downwards, into the scale or pile of appeals above delineated; and thus it is, that to that pile which can never be too high—namely, the pile of remuneration for the services and merits of noble and learned lords and gentlemen—a correspondent addition will be made.
As it is with Hogarth’s prints, so have I found it with this, if not inimitable, let us hope never-about-to-be-imitated bill: look as often as you will—look again—new interesting objects will you find in it: till this day (October the 19th,) not more than five judicatories had I observed to have been established by the bill, in lieu of the two which it found in existence. On looking into a section which had escaped me,—namely, section 5th, I find by it another judicatory added; namely, that of a Master in Chancery: Yes, that of a Master in Chancery; and so far so good. But does the matter end there? Oh no: for, from the decision of his Mastership lies of course a virtual appeal,—under the name of exceptions to his report,—either immediately or through the medium of the Vice-Chancellor, to the Lord High Chancellor in his quality of Supreme Judge (save and except the House of Lords) in matters of equity; so that thus we have not one only: but three more stages of appeal. “All costs of suit,” says § 5, “between party and party in the said court of review shall be at the discretion of the court, and shall be taxed by one of the Masters of the Court of Chancery.” All costs of suit? and to the sum of these sweet things, what limit is there that can be assigned? By the blessing of God upon learned industry, to thousands of pounds in any number may these same costs be made to amount; and out of the stakes constituted by the bankrupt’s assets, and played for, as a pool of fish at Pope Joan, by noble and learned lords and gentlemen—out of this fund and no other shall these costs be taken? Semble que non: and if not, then by the creditors, in lieu of the so much in the pound to be received, comes so much to be paid.
So much as to everything that has any immediate application to the particular matter here in question; that is to say, to the merits and demerits of the bill, now passed into an act. But, in the course of this inquiry, has unavoidably been started another question—no less than whether, under the present head of the law, as between melioration and deterioration of the whole mass taken together, deterioration is not of these two opposite results unhappily the most probable. Now then, important as is the principal question, still more so (as everybody sees)—incalculably more so—is this collateral one. To him, so long as he continues in that highest of all high law situations—to him belongs, so far at least as concerns prevention, the attribute of omnipotence. Without his concurrence—or at least permission—for no melioration, to any considerable extent, can be seen any chance: for no melioration worth mentioning, much less for an all-comprehensive one.
Of any beneficial effect, the production, so far as it depends upon him, depends upon the conjunct existence of two states of mind—inclination and ability: and, if inclination be absent, ability—all the ability imaginable—will be of no use. If it be by an interest opposite to that of the community that his conduct is guided, inclination will be—not on that, but on the opposite, side. Disinterestedness, as the word is commonly understood, is the quality, not of him whose conduct is not determined by any interest (for that would be a mariner whose vessel never sails but in a calm) but of him who, on the occasion in question, is not under the guidance of any interest opposite to that of the community at large: to the possession of this quality he has been, and will be seen to be, laying claim: as the old law phrase is, continual claim. Into the validity of this claim, the inquiry now continues itself. By himself—by any one for him—will this contestation be complained of? He has himself to thank for it. By him has the gauntlet been thrown down: by this inquiry it is not thrown down, but taken up.
So much for inclination. What, now, if the other requisite—ability—be wanting likewise? As to this, some judgment the reader is prepared to form already; meaning, always, appropriate ability: for, as to oratorical talent, supposing inclination opposite, so far from being the better, law reform would be all the worse for it.
To return to inclination. Of what, in the shape of patronage, his Lordship has given up, and, per contra, of what he has gained, mention has not, in any other than general terms, been thus far seen made. Now for particulars.
In the customary order, profit comes before loss: but, in the present case, the most suitable order is—loss before profit.
Here follows the account:—
Patronage given up, as follows:* —
Per contra . . . . . Patronage gained, as under:—
Thus is the value of the patronage gained, more than three times that of the patronage given up.
So much for calculations and results: now for objections to them. “Vast,” says somebody—“vast (it must be confessed) are these sums: vast, accordingly, would be the value of the patronage in question—the patronage gained by the noble and learned author of the measure,—supposing this same sum actually received by him. But, for the supposition of any receipt at all, at any rate, of any receipt approaching to the like of any such amount, what ground will you find? Yes: if he had children and grandchildren, all of whom he had to make provision for, and would have made provision for out of his own means, had it not been for this resource. But, for any such supposition, is there so much as the shadow of a ground?”
Not much (answer I:) not much—I must confess. But neither by this confession is confessed the impropriety of placing the sum in question to the account of profit gained.
In the first place—the question of chief practical importance, though it is but a collateral one, being as above shown, the one relative to disinterestedness; and this question turning—not upon absolute, but upon comparative values, namely, as between matter given up, and matter of the same sort gained,—the consequence is, that if the subject-matter in question were mere moonshine, it would not the less be entitled to a place in this account.
In the next place, this is one of the occasions to which the old saying about meal and malt applies: if he has it not in meal, he has it in malt; if he has it not in money, he has it in money’s worth.
Reader, before you lie now the two sides of the evidence: which side (ask yourself) preponderates?—his Lordship’s? His Lordship’s, cry aloud in chorus the vast majority of those whose eyes either gratitude or hope, more especially the stronger power, keeps fixed upon the contents of the rich box of bon-bons which his Lordship has the distribution of: those members of the fourth estate not excepted, whose high lot (it has been said) it is to behold a frequent knife and fork lying before them at the noble and learned table: accordingly, to no person so beatified, is the question addressed. And, but for such patronage, from whom would this incense—all or any of it—be received?
For topics for this same incense, from which in this way the value of his Lordship’s patronage receives increase, can there be any demand still remaining? No, surely: but, for argument’s sake, suppose there were—a source from which it might receive completion, and that in a manner the most satisfactory, is a verse that may be seen, I do not remember in what page, of the Gradus ad Parnassum, the assistant so well known to all manufacturers of the so highly valuable commodity called a Latin hexameter verse. It consists of a verse by which any man to whom it happens to have a fancy for taking an airing in Greece at the top of Mount Parnassus, may with all facility, and as quickly as he could say Jack Robinson, as the saying is, give himself that gratification. It consists of eight words, which, when thus put together, constitute a panegyric on the blessed virgin, and have the curious property of composing an entire poem, of which any man who is curious enough may make himself the author. The property to which it is indebted for this magic power is this: the words are so selected, that in every order which they are capable of being made to assume, this sort of verse is composed of them. The verse is this:—“Tot tibi sunt virgo dotes quot sidera caelo:” it is thus, by an arithmetical process, that so curious an effect is produced—ringing the changes upon these eight words. The following is a sample of the topics on which that same incense grounds itself:—
His admirable proficiency and exquisite skill in the art of disseminating “useful knowledge”* —the sound discernment and sound judgment displayed by him in the choice of subject-matters and operators—his skill in the creation of universities—that skill, of which Londinia† has already had, and her Alma Soror Regia is about to have, the benefit—his complete mastery of the theory and practice of legislation as it ought to be, as exemplified and demonstrated in and by his local courts’ bill, and this his bankruptcy court bill, now so happily and triumphantly erected into an act.
No great chance is there (I must confess)—no great chance is there, of any Honourable Brougham,—who, smelling at the same nosegay with the Lord Erskine, may with him, in an unlearned state, feed with thanksgiving on about five thousand a-year, and with hope, on about as much more—exonerating his noble and learned father of the whole of this expense.
Profit, in this shape, it is true, he has not: but various other shapes there are in which he has it—shapes, having each of them its beauty; and in variety there is pleasure.
Calculate who can, the correspondent additional number of those, whom, like the members of one of James the First’s parliaments, the additional patronage will throw “upon the knees of their hearts” (for in those days hearts had knees:) calculate this, and when your calculation is made, ask yourself what, when the means of sustenance are provided, what is it that money is good for, but to cause men to do the will of him who has it in his pocket? and, in a word, look the world all over, and say by how much is the appetite more canine for mammon in the shape of money, than for mammon in the shape of power in general, and in particular in the shape of patronage?
February 22, 1831, Mirror, p. 420.—“The only motive by which I am actuated, is the anxious and earnest wish to purify and amend the defects in the institutions of my country.”
Such is his Lordship’s “only motive.” Nothing cares he about fees: nothing cares he about salary: nothing cares he about patronage: nothing cares he about emolument, in any imaginable shape: by any one, or all together, of the objects by the love of which the conduct of ordinary men is to such a degree hard driven, not a jog is capable of being given to his immoveable mind.
So much for the shadow; now for the substance: so much for make-believe disinterestedness. Reader, have you any curiosity to see a sample of what, in relation to these same arrangements, real disinterestedness, in conjunction with appropriate intellectual aptitude, would have produced? If yes, take the trouble to read what follows:—
1. As to the number of the functionaries of all sorts; this number, not greater than that which has been found necessary: and to find what is the number necessary, proceed in manner elsewhere recommended. Proceed upon the deputation system, as above explained. Begin with the minimum number; add other functionaries, one by one, as the need receives demonstration from experience; in two words, fiat experimentum: this is what common sense, when it has for its companion common honesty, prescribes; this is what gave immortality to Lord Bacon: be not either ashamed or afraid to take a leaf out of the book of Lord Bacon.
2. Next, as to remuneration in the shape of emoluments: for the purpose of reducing them respectively to a minimum, employ competition: fear not to employ in this case that instrument, the application of which has the approval of everybody in every other case.
This you will do, unless the advice of common sense, in union with common honesty, be found or deemed too hard to be digestible.
As to emolument, is that same exclusively adequate instrument so startling, that blindly employed precedent is preferred to it? Look, then, to the case of the London police magistrates.* In that case, four hundred a-year was sufficient for their emolument, and therefore would be for these commissionerships, as has been elsewhere demonstrated by uncontroverted and uncontrovertible reasons; in addition to the demonstration afforded by the urgency of the application at all times made for these same defunct commissionerships.
So much for general suggestions. Would you wish to see them applied to particulars? Proceed on, and read what follows:—
1. In the immediate judicatory, judge one, and no more.
2. So in the appellate judicatory.
3. Grades of jurisdiction, these two, and no more.
4. Appeal to the Chancellor, not any.
5. Appeal to the House of Lords, not any.
To this sham security, exists there any person, by whom an efficient and honestly-meant security would be regarded as preferable? Of the sort which I would venture to propose to him, a model may be seen in the paper styled “The Parliamentary Candidate’s Declaration,” &c. Purposes of it, amongst others, these:—1. To furnish to the functionary, as far as it goes, a distinct comprehensive view of the field to which his labours will be to be applied; 2. To call in the aid of the popular or say moral sanction, for securing appropriate moral aptitude, against departure from the right path, in ways to which the power of the legal sanction is not applicable; 3. To present to the minds of locators, a standard to which they may make application of what they understand to be the characters of the several persons locable, whom the occasion offers to their choice. Locator, on the present occasion, the Lord Chancellor: persons locable, all persons in whose instance adequate ground has place for regarding them as endowed with sufficient intellectual and active, without objection on the score of moral, aptitude.
Will it be said or thought, that for the commissioners in question, a more extensive portion of law-learning is requisite, than for police magistrates? To any such supposition, I make answer—
1. Not more, nor yet so much. Of these commissioners the jurisdiction is confined, in the branch of law called the civil, to a comparatively narrow corner of that field: and with the penal branch it has nothing, or next to nothing, to do: of the police magistrates, the jurisdiction spreads, in one way or other, over the penal branch in its whole extent, and over sub-branches in great variety of the civil branch.
2. For the possession of this so desirable an endowment on the part of his fee-sucking children, no real provision whatsoever, in and by this act, does the noble and learned father of it make: for the possession of this branch of appropriate aptitude, no better nor other security does it provide than was provided in the police magistrates’ salary-raising act, by the right honourable sham reformer, in whose steps the noble and learned lord, on this occasion at least, treads blindfold. Eating, or making believe to eat, a certain number of dinners in one or other of four large apartments called halls, followed by a relative fast kept holy during a certain number of years, is the security with which Sir Robert Peel, in despite of all my remonstrances, remained inexorably well satisfied: and when, in the form of a bill, this same bankruptcy act was concocting, all the while, on the noble and learned table lay that work of mine, in which the absurdity and mischievousness of that same sham-security stands demonstrated.
3. On the occasion of his appointment, to relevant and appropriate law-learning no regard, or next to none, is ever paid: it is not the fashion. That which in this respect is the fashion, there has been occasion to hold up to view elsewhere in these pages. Of what is called equity, what knew Lord Lyndhurst, when the charge of dealing out that high-priced commodity in so high a grade was put into his hands? What knew of it Lord Brougham—what knew of it Lord Vaux—or either of them? What opportunities—what means—of such knowledge had they had—these noble and learned persons, any of them? No: considerations styled political, alias party, were, as everybody knows and says, the cause of choice in those cases; the like considerations, or private and personal benefit, or good-liking, have of course been, and will continue to be, in these.
Thus much for a stay-stomach, until the time is arrived for application made of the all-comprehensive local judicatory system: the business of this temporary and make-shift institution of a special judicatory for bankruptcy business, will then be absorbed and merged into the common mass of the business of those several judicatories.
Noble and learned eyes! can you carry yourselves so far as to the other side of the Tweed? In Scotland, is there any bankruptcy court? No such thing. Any insolvency court? No such thing. And the assets of insolvent debtors—are they the less effectually disposed of for the benefit of creditors? No such thing.
In Scotland, had not the noble and learned father of this act, if not the whole, the last and finishing part, of his education? In his advocate’s shape, did not—in his chancellor’s state, have not already—those same noble and learned eyes found need to carry themselves all over that part of the island? There sits, moreover, the Lord Advocate. Scotland—has not she a sort of Attorney-General, but with authority much more extensive than the English Attorney-General, in the person of that same Lord Advocate? To the Lord Chancellor, had no opportunity ever presented itself of hearing how matters stand, in this respect, from that same Lord Advocate? Exists there that man with whom he is in habits of closer intimacy, or more constant communication, than with that same Lord Advocate?
Appropriate examination; and, for ascertaining the maximum of the pecuniary remuneration needful, competition—competition among those by whom the examination has been undergone—competition, that operation by which, between dealers and customers, prices in general are settled:—these are the instruments by which, according to my principles, economy and official aptitude are secured, and made to dwell together in perfect amity. This, in both departments—the administrational and the judiciary: but in the judiciary in particular, these form no more than a part of the securities which my code has provided for appropriate aptitude in the judiciary department.
For the good people at large, when the fulness of time shall have been accomplished, is all this information designed:—all this information, the object of which is—so to manage matters, as to cause the interest of functionaries, in all official situations, to be in exact coincidence with their respective duties. As to learned lords and gentlemen, whose eyes are so pertinaciously closed against all such information by a compound of sinister interest, interest-begotten prejudice, and authority-begotten prejudice, where is the lever long enough to wrench them open?
To doctrines such as these, when will public functionaries in general, and law-learned lords and gentlemen in particular, lend a willing ear, and act accordingly? When the population of Newgate and St. Giles’s lend a like willing ear to a sermon having for its text “Thou shalt not steal,” amend their ways, and act according to those words.
Alack-a-day! a little more, and I should have forgot to acknowledge the oath—the security afforded by that phantasmagoric cable, with such care and punctuality provided for binding a functionary to his duty. Well then, here it is. Not so much as one of all the whole three-and-twenty new functionaries—creatures of his Lordship’s creation—not so much as one of them all is there by whom that same cable has not been, nor of the future contingent ones, by whom it will not have been, swallowed.
In regard to qualifications and security, thus, then, stands the matter. For appropriate intellectual aptitude, we have the security composed of the manducatory and the jejunial, as above mentioned: for appropriate moral aptitude, we have the oath: equivalent to which mockery, and instead of noxious, as that is, perfectly exempt and pure from all evil would have been the loyal song of God save the king; or, in learned language from the grammar of the royal school at Westminster, the harmonious couplet—
and here, in this same couplet with the word pura, as a gem set in it, might have been seen Morality, with her sister Intellectuality, hand in hand. Nonsense, so far as regards contribution to the end which ought to be kept in view, nonsense being the matter which that chosen formula is composed of, I propose this for a substitute to it, as being composed of less trashy nonsense!
Here ends the thread of these Observations: and here would end the whole publication, but for the demand for the reason of the change of the title from Observations on the BankruptcyCourt Bill to Lord Brougham Displayed.
Important as is this subject, there is one which is still more so; and that is, his continuance in the office now filled by him. Law reform, or a sham reform—on him, more than on any other man, depends the solution of the momentous question, which of the two shall be our lot? Shall it then continue, or shall it cease to be, filled by him? This is an ulterior question; a question, on the answer to which it depends whether during our joint lives any fruit can, with any hope of success, be looked for by the labours in which my long life has, the whole of it, found the greatest part of its occupation, and the dearest part of its hopes. Now, then, what is my situation? That of a man who finds imposed upon him the painful necessity of stopping the course of those same labours, for the purpose of doing what depends upon him towards conferring this benefit on his country and mankind.
Four occurrences present themselves, as the most prominent of those which have concurred in the production of this distressing persuasion:—1. The charity inquiry job; 2. The advocacy of fee-gathering; 3. The opposition made by him to the ballot; 4. His education jobs.
1. First, as to the charity inquiry job.
For anything like a full and detailed examination of it, this is not the place: by a few general and leading observations, the course adapted to an instructive and useful examination of it may, perhaps, be seen to be pointed out.
1. So long as the judiciary system, with its procedure, continues to be what it is, not good, but evil, is what the inquiry, carried on as it is, not according to, but in contravention of, the greatest-happiness principle, will have for its net product.
2. So enormous is the factitious expense of procedure in the judicatories called equity courts, in which this business would have to be and is carried on,—that, before it had proceeded any comparatively considerable length—any length capable of contributing effectually to its professed purpose—namely, the institution of a system of all comprehensive national education,—parliament, the nation, and the treasury, would naturally, not to say necessarily, become impatient of it, and that in such sort, that to prevent further effusion of the life-blood of the treasury, a bandage would be applied to it.
As to the patronage, the persons by whom the benefit of it has been reaped, are his learned brethren the profession, in every branch of it to which the business has given employment.
In the report* which on this subject has been laid before the Honourable House, may be seen the amount of the business, with its profits, for which they stand indebted to this one of his institutions on that score.
Had anything better than power, patronage, and ambition-serving popularity—had, in a word, the happiness of the community been at the bottom of all this care of his,—would he, when the prospect of power and patronage had ceased, have turned his back upon this same charity business, and left it to deteriorate by neglect? No, surely. Now then, mark well how he dealt with it.
1. Quantity of time left unemployed in the business, four months out of the twelve;† so says an acknowledgment made by the chairman of the board—the person whose situation rendered it his interest to make the proportion of time employed in that same business as great as possible.
2. Quantity of time professed to be employed in the journeys, not more than four months out of the twelve.†
3. Quantity of time professed to be employed in digesting the documentary evidence and drawing up the reports thereupon made, the remaining four months—a quantity of time equal to that professed to be employed in the journeys and the elucidation of the evidence together.†
4. Every member left at liberty to employ himself in his professional pursuits for any portion of his time, at pleasure—of the time he was to be paid for at the rate of £1500 a-year at the public charge (so ordains the act;) on the circuits not excepted: actually so employed, these same functionaries one or more of them: one of them for and during a more or less considerable portion of his time occupied in the exercise of another office in Ireland—namely, that of commissioner of Irish education.†
5. By loss or destruction of documents, through negligence or wilfulness, charities in unknown numbers left exposed to be extinguished.
6. No thought bestowed on the prevention of breaches of trust in this shape in time future.
7. For the preservation of the several documents constitutive of title, an act some years ago having passed, the fruit of his soanxiously fostering care, the object of it carried into effect in the instance of no more than a few counties, and then left in the state of a dead letter.*
Three several modes there are, in one or more of which it is in the power of the feegatherer to make additions—and, generally speaking, to an indeterminate and unlimited amount—to the quantity of the depredation committed by him by means of this instrument: one is—by addition made to the quantity of the written matter, in proportion to which the addition is allowed to be made; another is—by addition made to the number of the occasions on which the fee is allowed to be exacted; and a third is—by addition made to the number of days or other portions of time at which he is occupied, or supposed to be occupied, in that same quantity of business, be it what it may; thus splitting the whole time into a number of fractions—their distance from each other determinate and limited, or indeterminate and unlimited—for the purpose, and with the effect, of exacting a fee for each such particle of time; thus giving increase to the expense imposed upon the parties interested, as also to the delay, in proportion not only to the number of these same particles of time, but also to the distance between each of them: three modes—all of them so many concealed modes—over and above the open mode, by addition made to the amount of each fee so allowed to be exacted; of which last, the effrontery of it notwithstanding, examples are not wanting.*
By the quantity-enlarging shape of the abuse, is produced the maleficent lengthiness of each portion of the statute-book, in the existing state of it: and thence will be produced the obstruction which will of course be opposed to every proposal for the removal of it: by the other, the time-splitting abuse, the enormity of the factitious quantity of delay with which are loaded the proposed laws termed private bills, throughout the course of their passage through parliament.
By its quantity-enlarging shape, in conjunction with the utter absence of all classification and order in the disposition of the matter, is produced the impossibility a man is under of coming at the knowledge of the rights of the benefit of which, without such knowledge, he must be deprived; of the wrongs to which, but for such knowledge, he must, without remedy, remain exposed, at the hands of all other individuals; and the punishments which he must remain exposed to suffer by the hands of government: and, in short, to fill up the measure of maleficence, to this abuse, in conjunction with the leaving the rule of action in the shape of the imaginary sort of law called unwritten law, alias jurisprudential law, alias common law, alias judge-made law, is owing the non-existence of an all-comprehensive code.
On two achievements is based whatsoever can be done in the way of law reform—namely, appropriate codification, and appropriate judiciary establishment, with its system of procedure. To the last of them his Lordship’s implacable hostility is but too indisputable; it has already been held up to view; to the former, it is but too probable, not to say certain—sinister interest, interest-begotten prejudice, and interest-begotten sympathy, join with consistency in calling for it at his hands. Before him has all along lain that volume of mine, in which the demand for codification, and the demand for a new judiciary establishment, with its procedure code, are spread out in detail: of the latter, what use has been made by him, may be seen by whosoever has the requisite curiosity and patience.
By all these jobs of his, he has stretched out the right hand of fellowship to jobbers of all sorts, whose jobs are not of a magnitude too small to be included in such an alliance: giving thereby an invitation to maximize the number of the several jobs, the profit from each, and the quantity of the sustenance and life-blood of the community let out by every stab thus given to the constitution.
In his eulogium on education—in his “schoolmaster sent abroad”—he may have seen (and who will say of him that he did not see?) the schoolmaster sent abroad by him throughout all nations in the quality of collector of the customs, in the shape of praise,—to gather in the tribute of praise and popularity for his own behoof: laying it up in store, in readiness to be applied to whatsoever purpose the turn-up of affairs should at any time present him with an opportunity of employing it to advantage. Actions are no bad interpreters of intentions. Yes, to whatsoever purpose; and already have we seen to what sort of purposes his treasure, in this shape, has actually been applied. “And by this service,” says some one, “has not great benefit been actually and already rendered?—rendered, certainly to this country, probably even to others: and, for this benefit, is not correspondent gratitude unquestionably his due?” Answer: Not altogether so assuredly. Gratification? Yes—gratification on our part; but gratification and gratitude are different things: cause for gratification is in proportion to results: but, cause for gratitude depends upon intentions. On the present occasion, the question is—this all-needful benefit, shall it or shall it not be received by us with gratitude? And if, how great soever the benefit may be, the party for whose service the benefit was intended, was not ourselves but himself alone, what is the claim it gives him upon our gratitude?
Ballot—what shall I say of the ballot?—what of his Lordship’s sentiments in regard to it?—to the question whether the opinion, the wish, the exercise given by man to his power as and for his own, shall be the result of his own will, or that of another man—of a man who acts as a tyrant over him?—whether such his act and deed shall be genuine or an imposture?—whether, by hundreds of thousands, Englishmen shall remain subjected to no other option, than that of each man violating his own conscience, or suffering pecuniary loss to an amount to which there is no other limit than that of the whole means of his subsistence? In this one feature, as in a mirror, behold the frame of mind of this our self-professed reformist.*
After an attack made, and thus made, upon one of the most admirable members this country ever saw of the most highly talented profession—one of the most amiable men I can think of in private life, I now take this my last departure from the subject.
Well, then, this being the manner in which I deal by him, what is the manner in which he deals by me? and this, after having seen the first part of these same Observations. Often does it happen to him to speak of me; seldom in any other terms than such as are a mixture of affection and even more than respect; never in terms of the opposite description: to this effect is what it has been my good fortune to hear, from a variety of quarters—with what a mixture of surprise and gratitude let any one imagine. Had the thought of a fillip to a single individual who has thus shown how little he cared about it, outweighed, in my mind, one of the most important ingredients in the welfare of the most extensive empire upon earth, not to speak of “the rest which it inhabit,” I should have done otherwise; but, considering whom it has been written by, let any one judge, whether anything, that could be written with the view—the public and all-important view—these pages are written with, could be regarded as superfluous.
After the last word of this present work had been written, a book, which bears for its title. The Black Book, was put into my hands by a friend, who had been witness to the writing of the pages of this work as it went on, and by whom the discovery had not been made before the day of his giving the information to me. It is inserted here, as another piece of evidence of the nature of that adduced in the preceding note.
“BROUGHAM, HENRY, (Winchelsea,) Barrister at Law.
“The political tendencies and acquirements of this Member have been so often set forth, that it would be a waste of the reader’s time to indulge in disquisition on so trite a theme. A strange fatality seems to attend every project to which Mr. Brougham directs his efforts: no one has abounded in more useful suggestions, nor evinced greater and more searching powers in the exposition of abuses; yet it cannot be said he has originated and carried through a single measure by which the community has been materially benefited. This is a very “lame and impotent conclusion” after a public life of great bustle and considerable duration.
“Mr. Brougham’s exposure of the abuses of Charitable Foundations, by which he showed the Poor had been robbed of near Two Millions of annual revenue by bishops, parsons, and gormandizing corporations, did him infinite honour; but nothing useful has resulted from the discovery of this mine of pious plunder. The learned gentleman suffered his bill on the subject to be frittered of all its usefulness and efficiency; the job got into the hands of commissioners, who, with enormous salaries, have been perambulating the country for years, under the pretext of investigation; they have published thirteen folio volumes of reports, and have thrown part of the property into chancery, but not a shilling appears yet to have been saved from the cormorants, and applied to the uses for which it was originally intended. All this delay and cumbrous machinery might have been saved; a single bill for a general restitution, or a local inquiry by persons not interested, was all that was needed.
“I pass over the Honourable Member’s libel bill, and his bill for universal education; they were both so ill concocted, that they pleased no party, and came to nothing. The last project which has fallen under his paralizing touch, is the London university, and even this great and salutary scheme appears either dead or struggling for life under the influence of his baneful countenance. What the learned gentleman chiefly desiderates, is more concentration of purpose; like water spread upon a plain, his great powers are lost by diffusion: it is true, such discursive irrigation may fertilize, for a season, an extensive surface; but it is too weak to turn a mill, or produce permanent and visible effects. Another cause which impedes the usefulness of this really worthy man, and creates misgivings among his friends, is the uncertainty of his moral and political organization: he is not gay and profligate enough for a Tory; he is too independent for a Whig partisan, which doting faction never forgave him calling their late Grand Lama Ponsonby, “an old woman;” still he is often too circumspect and personal in his pursuits for a thorough patriot or reformer; and his late repulsive and snappish behaviour at Appleby shows that nature never intended him for a popular leader. These points are all exemplified in the Honourable Member’s wiry and sinuous career, from his first introduction to Mr. Pitt, through his curvettings with the Westminster reformers, to his final and hopeless fixation in the Whig slough of despond.
“Leaving these general touches, I shall come to a subject on which Mr. Brougham is entitled to unqualified praise; I mean his efforts in favour of popular education. In the promotion of this noble object, his endeavours have been unceasing and invaluable; and he is the more entitled to gratitude, because it is a pursuit from which he can expect no personal advantage, while the benefits he may confer are incalculable. There is one point connected with the Mechanics’ Institutions, in the success of which he takes so deep an interest, to which I should wish to call his attention. It is a pity, I think, the conductors of them should so exclusively direct their attention to the diffusion of a knowledge of the merely physical sciences: without depreciating any branch of knowledge, it is not conceivable how the lot of the working-classes can be bettered by an acquaintance with mechanics, acoustics, electricity, galvanism, and other branches of natural philosophy, which constitute the reiterated topics of institutional lectures. The miseries of society, in my opinion, result much more from moral and political causes than a want of physical knowledge and power. Nature has given to man fertile land, sun, and air, to produce his food, and it is the waste or misappropriation of the product of these, her almost spontaneous gifts, that chiefly creates ignorance, penury, and dependence.
“Political economy is a science of general application; every one, as landlord, merchant, or workman, being interested in the laws which regulate rent, profit, or wages. It also elucidates the important relation between subsistence and population. Till this great problem is universally understood, we cannot look forward to any permanent improvement in the condition of the people. Physical science may augment our productive powers, new machinery may be invented, rail-roads may be constructed, and the application of steam extended; still the lot of the people will not be improved: wages will be no higher, provisions no cheaper, the hours of labour no shorter; the only result being, that they will be more numerous, their dependent and necessitous condition remaining the same as before.
“Why, too, not have more frequent discourses on the medical art? It is lamentable to observe how much misery results from ignorance of the human constitution—the properties of food—the regulation of air and exercise—and other means by which the health is preserved and the constitution invigorated.
“The foundation of laws and morals might be explained, and the connexion between these and individual and social happiness would open a delightful field for eloquence and elucidation. History, especially of our own country, and, more particularly, that portion of it which refers to the rise of cities and towns, and the emancipation of the great body of the people from a state of worse than West-Indian bondage, would form an instructive inquiry. To these might be added geology, organic remains, and natural history, which would, I think, form popular themes; they would liberalize and expand the mind, abstract it from gross and vulgar pursuits, and create an appetite for intellectual research and disquisition.
“I have only one more suggestion to submit to Mr. Brougham. I trust, as soon as the new parliament assembles, he will move for the repeal of the 1 Geo. IV. c. 9, that act which restains the sale of cheap publications, by fixing the minimum of price at which they may be sold, and the smallest number of square inches on which a writer may circulate his ideas. This Vandal law was passed during the administration of that poor, illiterate, and shortsighted mortal, the Marquis of Londonderry. It is nothing less than a tax on the knowledge of the poor, and its injustice and iniquity can only be equalled by that which taxes the bread they eat, for the support of an overgrown aristocracy. Such a motion is required of Mr. Brougham for two reasons: first, to evince the sincerity of his wish to enlighten the popular mind; secondly, as an atonement for a former error, when, moving on one of his political tacks, he launched into declamatory invectives on the seditious and blasphemous tendency of the ‘two-penny trash.’ It is true, all the cheap publications were not conducted with ‘absolute wisdom;’ some of them were diabolical in their object, vulgar, violent, and un-English in the extreme. But along with these evils, considerable good resulted: they generated a taste for reading, inculcated a feeling of independency, gave the people a glimpse of their importance in the social scale, and, no doubt, sowed the seeds of that intellectual activity which promoted the establishment of the Mechanics’ Institution, and diffused a thirst for an acquaintance with natural and mechanical truth.”
The work from which the above has been extracted was published in October 1826; and it can hardly have escaped observation how prominently his Lordship’s deficiencies on the subject of the diffusion of moral and political knowledge have been subsequently developed, in connexion with the Society instituted for Diffusion of Useful Knowledge, and also with relation to the Taxes on Knowledge.
[In the original Edition, here follow Extracts from the Constitutional Code, viz. Chap XII. Judiciary Collectively, § 5. Number in a Judicatory, and § 32. Judges, &c., Securities for Appropriate Aptitude. These will be found in their appropriate places in this Collection.—Ed.]
[*∗* ]On the 6th June 1828, Commissioners were appointed by letters-patent, “to make a diligent and full inquiry into the law of England respecting real property, and the various interests therein, and the methods and forms of alienating, conveying, and transferring the same, and of assuring the titles thereto, for the purpose of ascertaining and making known whether any, and what, improvements can be made therein.” This commission made four several reports, which were ordered by the House of Commons to be printed, of the following dates:—The first, 20th May 1829 (House of Commons Papers, 1829, X. 1;)—the second, 29th June 1830 (House of Commons Papers, 1830, XI. 1;)—the third, 24th May 1832 (House of Commons Papers, 1831-2, XXII. 321;)—and the fourth, 25th April 1833 (House of Commons Papers, 1833, XXII. 1.) In the course of sessions 1832 and 1833, several Acts were passed for amending the law of real property in England, the provisions of which were chiefly founded on the suggestions of the commissioners. They are, 2 & 3 W. IV. c. 71 (1st August 1832;) 2 & 3 W. IV. c. 100 (9th August 1832;) 3 & 4 W. IV. c. 27 (24th July 1833;) 3 & 4 W. IV. c. 74 (28th August 1833;) 3 & 4 W. IV. c. 105 (29th August 1833;) and 3 & 4 W. IV. c. 106 (29th August 1833.) In 1834, a Bill “for establishing a General Register of all Deeds and Instruments affecting Real Property in England and Wales,” was introduced in the House of Commons, where the motion for the second reading was negatived on the 7th May by 161 to 45. Of the above-mentioned intended and completed reforms, it is impossible, from the extent of the subject, to give any outline, and the reader is merely referred to the most authentic sources of information on the subject, that he may be able to compare what has been done or accomplished, with the suggestions of Bentham in the following tract, and that which immediately succeeds it.—Ed.
[* ]Why not?
[* ]The department then and there in question, was the Administration Department.
[* ]“And in my mind” said his Lordship, “he was guilty of no error—he was chargeable with no exaggeration—he was betrayed by his fancy into no metaphor, who once said, that all we see about us—King, Lords, Commons, the whole machinery of the state, all the apparatus of the system, and its varied workings—end in simply bringing twelve good men into a box.”
[* ]Ch. IX. Ministers Collectively; § 3. Number in an Office: Vol. I. p. 216.
[† ]Ch. XII. Judiciary Collectively; § 9. Number in a Judicatory.
[* ]“From the decision of the Lord Chancellor in cases of bankruptcy, there is no appeal.”—Archbold on Bankruptcy, p. 21, 2d edition, anno 1827.
[* ]Note here, a Division judge: an animal coming forth in the way of equivocal generation. See, as to this, what is said under the name of a division judge—no such person is in any other part of the Lords’ bill named.
[† ]For several years past, I have occasionally been occupied on a work to be intituled Nomography; in which, amongst other things, what depends upon me is doing, towards shutting the door against such doubts, and the ruin with which they are pregnant:—doubts, raised by the tenor of acts of parliament, and other written instruments, by which everything that is dear to man is disposed of.
[* ]13th October 1831. Looking at the second edition of the Commons’ bill, I find this same 38th section reprinted in it in terminis; and, in this second edition, the section is the 38th, as in the first. In the Honourable House votes of the 11th—12th October, I read these words: “22. Bankruptcy court bill. Order for further considering report read; bill re-committed,” &c. At the same time, at about 10 a. m. of the 12th, along with this same paper of votes, came in the above-mentioned second edition of this bill, ready printed: and this same second edition is, in a multitude of particulars, quite different from the first, over and above those of the sections which it has reprinted from the Lords’ bill.
[† ]Ens rationis—the technical logical denomination—he must not be called by: lest, by this appellation, intimation should be understood to be conveyed, of his being the offspring of reason, instead of his being, as he is, offspring of the want of it.
[* ]Rationale of Evidence, B. II. Ch. X. Publicity and Privacy, &c.
[* ]In the Scottish Judiciary Establishment’ sheriffs (judges of the shires) appoint sheriffs-depute. [They are called sheriffs-substitute.—Ed.]
[* ]Of the existence of this state of things, a demonstration may be seen in the work intituled “Petitions for Justice,” &c. That the abomination has swelled to this enormous pitch, and that such, as above, was the origin of it, is what, of the vast multitude of men of prime talents, whose interest it is to controvert it, not so much as one has ever yet felt himself able so to do in print, with any prospect of success.
[* ]For all these judicatories, where are to be the several and respective justice-chambers? On this occasion, let us hope that a court-building job is not intended to be added to the church-building job. I say justice-chamber—to keep clear of the ambiguity involved in the word court, as well as in the word church: an ambiguity, by which so many worthless and maleficent real entities are respectively erected into, and confounded with, one venerated fictitious entity,
[† ]Stimulus indeed! Profit, which is the same, neither more nor less, exertion or no exertion, and, if exertion, how strenuous or how little strenuous soever it may be,—in this state of things, what is the exertion which the stimulus is capable of affording?—a profit, moreover, which, more or less of it, if not all of it, is received and pocketed—not by the man in question—the judge—but by his locatee—the man appointed by him to a different office, though indeed an office of which he has the patronage? Stimulus indeed! Of those same subordinates of his, be they who they may—even of these men, how is it, that to any exertions of theirs, by these same fees, any stimulus can possibly be applied? for, in their instance as well as in his—exertion or no exertion—exactly the same is the profit, neither more nor less.
[‡ ]A “piece of business,” what? Of this same piece of business, what “disposition” is it that will be universally understood to be a “final” one?
[∥ ]Long reflection.] Long reflection indeed! This was anno 1829, when he was plain Henry Brougham—plain barrister-at-law—how famed soever in the same. Two years have elapsed: he is now Lord High Chancellor—he is now omnipotent—he is now invested with the power, the magnitude of which cannot be more appositely or impressively displayed or testified, than by the circumstance of its giving existence to a measure such as this. In this it is that we have the only shadow of a use, which his imagination—powerful and fruitful as it is—is able to frame for putting it to in idea. And now, what does he? He has taken in hand the instrument—he has studied it—he has pronounced it a good one, and fit for use: yes—fit for this use: and after all, the only use which he can find hardihood enough to speak of with approbation—this use he does not put it to: all the uses, on which, on this occasion, he has passed condemnation—condemnation which, though but implied, is not the less manifest—and on other occasions (as will be seen) such vehement condemnation—all these uses he now not only approves, but, in numbers of instances altogether countless, will be seen putting them to.
[* ]Actual observation.] Actual observation? Quere, of what?—of the moon? or of the satellites of Jupiter? or of any of those conjunctions by which days are pronounced lucky or unlucky, and fortunes told?
[† ]Agree with me.] Agree with him? O yes: to this assurance, credence, may be given without much danger of error. Suppose an enactment made, aiming, in appearance, at this object,—no want, assuredly enough, would there be of fees: fees generated by doubts and consequent suits; fees of the genuine description, generated by doubts as to the source out of which this new-invented spurious fee, or rather so-called fee, was to be understood to flow.
[‡ ]The fourth principle.] (1.) “Judges should be remunerated for their labour . . . . (2.) Judges ought to be well remunerated . . . . . (3.) Judges labour . . . . ought to be amply but not extravagantly paid for.”
[* ]Temptation.] Behold here—and not here only, but in page 415 also—the noble and learned eyes wide open to the temptation, and, at the same time, the noble and learned mouth saying its prayers to the lords, and beseeching them to deliver him from that same evil, into which, at that same moment, he was doing what depended upon him—he was putting his rhetorical powers to the stretch—for the purpose of leading and plunging over head and ears himself, and the whole train of the creatures he was occupying himself in the creation of. Witness schedule the first of the bill in question, in the last edition of it; witness the act, into which in due course, it was predestinated to be transfigured, with its schedule the second, and the several fees contained in it.
[† ]Unspotted and unimpeachable integrity.] Scene, Utopia. Of the romance so intituled, characteristic features are, effects—felicitous effects, existing without causes; figs growing on thorns; grapes on thistles.
[‡ ]Fitness.] By what means ascertained? Here you have the effect: and where have you the cause?
[∥ ]Over men such as they are, and selected as they are, what need of any such or any other inspectors?
[§ ]Jealous Bar.] Interested in all the abuses by which the judges in question make their profit; anxious to be raised to the situation in which that profit grows, and in those same situations to come in for shares in that same profit: eyes closed, as is the oyster shell against the knife, against those same abuses. Jealous men such as these? O yes: but of what? Of everything which can lessen the abuse, or prevent the augmentation of it: such being their interest, and without so much as a duty, as in the case of those same judges, for a counterbalance to it.
[¶ ]In Parliament.] Occupying thus two incompatible situations—undertaking the fulfilment of two duties, the conjunct fulfilment of which is (unless one and the same man can be in two different places at one and the same time) physically impossible: one of them a situation in which, if accused, each man will be his own judge; and thus, by the assurance of fruitless and uncompensated odium, stopping the mouths of all who might otherwise be accusers, and enjoying the assurance of impunity for every profitable and every agreeable mal-practice.
[** ]Ought not.] Yes; of opinion that they ought not: and this at the close of a string of arguments for which the noble and learned brains have been put to rack, for the purpose of making us believe that that which, in consideration of the danger, “ought not” to be done, may, under and in spite of that same danger, be nevertheless done; and which he accordingly proceeds to do.
[* ]Suspicion.] Whereupon, having strained every nerve, and squeezed out what is above, for the purpose of satisfying us that fees may be allowed without the production of preponderant evil, he says they ought not to be allowed: and thereupon proceeds to allow them to the judges, of whose benefices he is patron, and whose profits are accordingly his profits, and for whom, for the multiplication of those profits, he provides the occasions, twelve in number, which form the matter of the second of the two schedules.
[† ]Higher judges.] Higher judges indeed!—as if, in those same higher judges, the appetite for fees were less rabid than in the criers of their respective courts; as if the existing system, with all its atrocities, by which the cry for law reform has been called forth, has had any other cause than the rabidness of the appetite of those same judges, and those “whose estate they have”—with their hunger and thirst for the delicious matter of which those same fees are composed.
[* ]Improvement! O yes: a capital improvement. Dependent—independent—capital, delightful tools to work with—to work well with—this same pair—this loving pair—not the less loving by being opposites. Yes: here we have again our old acquaintance—Aptitude is as opulence. On the former occasion, it was the intellectual branch that was to be provided for: provided for, but in joint tenantcy with the two other branches—the moral and the active: the provision now made has the moral branch all to itself.
[* ]Done away with.] A delicate matter this:—a truly delicate matter: and, each time, what is it that has been done? Answer: Just what was intended to be done.
[* ]A fixed maximum.] Each fee a sum determinate and unincreasable? Yes: if indeed that be the meaning, so far so good. But of those same unincreasable sums, suppose the number left increasable, ad infinitum,—increasable, at the pleasure of those whose profit rises in proportion to the aggregate amount of them; increasable, by means to the existence of which the noble and learned eyes were open, in the manner and to the degree that we have seen: and these sums accordingly, by those same noble and learned hands, put into the pre-eminently learned though not ennobled pockets; between which and the noble one there is a communication. Suppose this, and you will see in what way it is that, upon his Lordship’s plan, “all temptation to multiply forms, and create delay and expense to the suitors” is to be removed. Moreover, here again comes the “stimulus:” for, whether by or notwithstanding such removal, “enough (their Lordships are assured) will be left as a fair stimulus to the speedy dispatch of business.” For refreshment, preparatorily to this part of the speech, instead of an orange, presents himself here to my imagination his Lordship taking out of the learned pocket a bottle, and out of the bottle a good swig of Lethe water, to enable him to forget that, in the case of an office sweetened with emolument, as the office has, so has the patronage of it, a determinate value; and that this value rises, and that in a determinate proportion, with the value of the office.
[† ]Temptation.] Yes: here we have temptation again. Already we have seen him stating what the temptation is—showing, demonstrating, and by uncontrovertible reasons, that it is one which no judge, nor any officer in an office subordinate to that of judge, ought to be exposed to; and thereupon, eyes wide open to the irresistibleness of it, and the mischievousness of it, comes the determination to expose them to it—to expose them to it, all of them, judges and their subordinates together: which said determination we have seen accordingly in his bill, now passed into an act, carried into practice.
[* ]Fair stimulus.] Yes; sure enough, here we have another old acquaintance—a very old acquaintance. It has now, however, received a considerable improvement. In the former instance, on the former occasion, it was a “little” one; that was the best and the most that could then be ventured to be said of it. The time being (it seems to have been thought) come, the epithet fair is applied to it, and with this polish put upon it, it is presented to us for acceptance: and such (it seems) is its virtue, and so ample the service it always has rendered, and never will fail to render to justice, that the good effects of it are regarded as overbalancing, as just mentioned, all the evil ones apprehended from the temptation in conjunction with which it is now mentioned.
[† ]Gratuities.] Confounded, in a manner, with fees, are these same gratuities—we see how. After speaking of “fees,” he immediately after, without having noticed any distinction, says “these gratuities.” Things in themselves so different, how came they here to be thus confounded? Foul as is the abuse of fees so extorted, as has been seen,—still fouler is the abomination, to which the name of gratuities has been attached. In the case of a fee, the quantum is fixed; in the case of a gratuity, it is unlimited: predeterminate limit it has none; limit it has none but that which is determined in each individual instance: determined, and, by what? By the need which the suitor has of the services of the functionary; that is to say, by the evil which it may happen to him to be afflicted with, if, at the time in question, those same services fail of being performed: by the amount of this evil, coupled with the tempers of the two parties—namely, on the one part, the degree of hardihood; on the other part, the degree of timidity. From one and the same solicitor, a bold functionary will exact any number of times the amount that a timid functionary would: from a timid solicitor, one and the same functionary will exact any number of times the amount of what he could from a resolute one: the solicitor, I say, rather than the suitor; the case being—that, throughout the whole field of regular procedure, matters are in such sort arranged, that, for the suitor to see to his own business—to look after, and take care of, and make provision for, his own interest,—is impossible: the hands in which the care of it is lodged being those of a set of other men, in confederated swarms, of each individual of which the interest is, on each occasion, in relation to that of the boná fide suitor, in a state of diametrical and constant opposition.
[‡ ]Admit.] Somewhat wide admissions these. However, if given no otherwise than hypothetically, and for the purpose of the argument—not categorically and absolutely—let them pass. Let them not, however, pass unheeded—these grievances thus lightly dealt with; look at them a little more attentively.
[* ]The system.] Just twenty years ago—namely, anno 1811, in the work intituled Theoric des Récompenses, by the author of these pages, this same system was “blamed,” if exposure of turpitude is “blame.” The system? Yes; and the said Masters into the bargain,—if calling men, and proving them to be, extortioners and swindlers, is blaming them:—blamed by him were system and men together; and thus freely, his eyes not being sharp enough to descry any such necessity as that which, to the noble and learned eyes, is thus manifest. Could they even have prevailed upon themselves to abstain from this mode of swindling, there would still have remained to them the faculty of increasing their emoluments ad infinitum, as above; there would have still remained to them, for example, the faculty of effecting the extortion of the sum of £570, in payment of a man’s name put by him to a paper without looking at it; an extortion, the fruit of which is continued to be fed upon in full security.
[† ]£8000 a-year.] Whence this same sum of £7000 or £8000 a-year is to come, is what I am utterly at a loss to conceive.
Lost am I here in astonishment!
[* ]Two Masters.] This bears reference to another job, which seems to have been abandoned.
[* ]Convenient.] A convenient word this same word convenient. Where the purpose is deception, proportioned to its obscurity or ambiguity is the convenience of the diction employed in speaking of it. Pride, on this occasion,—the pride of the candidate—speaks more plainly. Where the emolument attached to the situation bears so small a proportion to the value of the time and labour necessary to the performance of the duties of it, and at the same time affording the minimum of the provision capable of enabling a man to keep up an appearance suitable to his station in society, without affording wherewithal to support a family, in such sort that the gift of it would scarcely be regarded as a favour, it will not sell for anything; where it rises to a certain elevation, it will fetch as much as an annuity, clear of all burthen in the shape of service. Of a living, the income of which is not greater than that of a curacy, the advowson will not sell for anything: while, of a living which is rich to a certain amount, the advowson has been known to sell for as much as 14 years’ purchase. In military offices, moreover, the like proportion has place. An ensigncy of foot, pay 5s. 3d. a-day, sells for no more than £450; while of a lieutenant-colonelcy, pay 17s. a-day, no more than about three times as much as that of the ensign, the regulation price is £4500—ten times as much. The increment added by this circumstance to what his Lordship, with his disinterestedness, gains by the change, might be proved and expressed in figures, were it worth while. Source of these statements, information obtained from an official accountant.
[† ]Oblige.] By his commissionerships of £1500 a-year, his judgeships of £2000 a-year, and his chief judgeships of £3000 a-year, his Lordship can “oblige” persons so high in rank, influence, and capacity of obliging him, that they would not have accepted of any of the abolished commissionerships, with their three or four hundred a-year.
[‡ ]Incompetent.] Howsoever, in this respect, the case may be with a hypothetical Lord Chancellor, in regard to an actual one, if in what I have heard from various quarters there be anything in any degree well grounded, the case is in no inconsiderable degree different. Of the four judges, against one in particular the outcry, on the score of inaptitude, is, if I am not egregiously misinformed, loud and extensive.
[* ]£26 000.] As to this sum, evidence other than as above, none: and of the new fees established, unbounded and ever increasable as is the amount of them, nothing said. For the real amount, see below.
[† ]Retiring pension.] The more rapidly the lord high jobber drives on his course with his learned job-horses, the nearer will be the thus contemplated fall of this modern Phæton upon his bed of down—the retiring pension,—and the greater the importance of any addition made to it.
[* ]Cavils.] By cavils, seems to be commonly understood ungrounded and groundless censure. How far it is in the present case applicable, the reader will already have been in some measure enabled to judge.
[† ]Ignorance of this bill.] If, for the provisions of this bill, anything like an apology be to be found, the reader will judge whether an ignorance of the substance, qualities, and probable effects of it, on the part of all concerned in the drawing of it, but more especially of the noble and learned draughtsman at the head of them, will not constitute the least bad apology that can be found for it. Another point on which the reader is hereby requested to pronounce judgment, is—whether, to the removal of that same ignorance, some contribution has not been made by him, to whom this “total ignorance” is thus imputed.
[‡ ]£35,000—£18,000.] Whether in these figures there be not some considerable errors of the press or of the pen, is another point on which the reader will presently be in a condition to pass judgment.
[∥ ]£12,000—£14,000.] Magnificent indeed is the show made by these figures. But this large cob-nut has been cracked, and the kernel has been found wanting. I could not but suspect as much; and, by a publication which has made its appearance while these pages were writing, this suspicion has been pretty well confirmed:a from which the true value appears to be = 0: to which, perhaps, may be substituted x; if x be taken for a very small number.
[* ]This act.] Yes: according to this act, at one and the same time, in relation to one and the same supposed act of bankruptcy, in two different justice-chambers, by two different sets of judges, the one subordinate to the other, one and the same set of proceedings is thus to be carried on; and these same proceedings are (it seems) to be filed, &c. in the office belonging to one of those same sets of judges—namely, the four judges of the court of bankruptcy—in that office alone; and thereupon “any one or more of the commissioners thereof,” namely, of the said court of bankruptcy, of and in which, in one sense of the words court of bankruptcy, there are four judges, and no one commissioner; in another sense of those same words, there are also at the same time commissioners in any number not exceeding six, as also in the several numbers two, three, four, five, and six, who are “to proceed thereon,” (says the bill and the act) and so forth as above.
[† ]Note that, in neither edition of this bill, is there any such or any other act recited.
[‡ ]In the second edition also, this same section stands twentieth, and is, without variation, in the same words. Here then we have a commissioner acting under the direction of an act which has no existence: much good may it do him; not to speak of the suitors. Here, and without doubt, we have single-seatedness: Yes—and here in all its simplicity and purity.
[* ]Question here for argument: Judge, either the judge whose proceedings in the imagined case are to be guessed at, or some other and what judge or judges: question, what the said judge would do were he a commissioner? Not that, in this imagined case, there is anything of inconsistency or impossibility: for, though, as above, every commissioner is a judge, it is not true that every judge is a commissioner.
[† ]Now suppose a different direction given by each of any two, or by every one of all these ten members of the court of bankruptcy—namely, the four judges who are not commissioners, and the six commissioners who are, and are not judges. What is to be the consequence? The unhappy wight—the official assignee—should he be, as he may be, pulled at the same time ten different ways, what is to become of him? Still greater would be his embarrassment than that of Garrick between Tragedy and Comedy, or Hercules in the print between Venus and Minerva: more nearly resembling would his condition be to that of a French traitor under the ancien régime, when pulled four opposite ways by so many wild horses.
[* ]Here again the already-mentioned difficulty re-exhibits itself: this same operation, whatsoever it be, any one of these five commissioners (all of them at the same time members of the court of bankruptcy) may perform,—whatever may be done by the two, three, four, or five others to prevent it. As to adjournment: by adjourn, the learned draughtsman means (it may be presumed) transfer: the occasion on which adjourn is the term commonly employed, is when, the body being the same, the transference is of that same body to a meeting at another time, and at the same place or another place. But, for aught I know, precedents of employment given in this sense to the verb to adjourn, may have met the learned draughtsman’s eye.
[† ]Thus far the bill: so that, inter alia, should the question, such as it is, be decided upon, in the first instance, by the said three other judges, the appeal against such decision of these same other judges may be heard by these same other judges, sitting under the name of the court of review. The appeal will be from themselves to themselves, and will accordingly be heard by themselves.
[* ]Thus far the bill: a curious enough document would be the formula by which this appeal, without the name of an appeal—this appeal in disguise—this quasi-appeal, as it may be termed,—is ordered to be made; its place would be among the rules and regulations, or say rules and orders, so often spoken of.
[† ]Here again may be seen single-seatedness: witness “such commissioner.”
[‡ ]Note how in this section (which follows immediately upon the last-mentioned one,) lest the quantity of this pre-eminently necessary remuneration should not yet be sufficient, provision is made for two appeals: two appeals, one above another,—Ossa upon Pelion; namely, one from any or all of the six judicatories just indicated, appeal to the court of review: the other from the court of review to the Lord Chancellor: but, rich indeed must be the fund, if, after having been drawn upon by these drains which we have been seeing, there remain any very considerable pickings for his said Lordship, and his immediate subordinates, in his Court of Chancery.
[∥ ]Appeals may, moreover, here be seen mounted one upon another in a pile, by which the tower of Babel will naturally be made to present itself to the mind of any person who has ever seen the elevation of it upon a Dutch tile.
[* ]On the per contra side, in the correspondent parts, the words are, as far as may be, the same, the figures alone different: of this identity, the use and consequence are—that, to the purpose here in question, any error that may happen to be found may be seen to be the less material.
[* ]See Westminster Review for April 1831.
[† ]For his management of the University of London, see Examiner for August 28, 1831.
[* ]In “Official Aptitude Maximized,” &c. “Observations on Mr. Peel’s Police Magistrates’ Salary-raising Bill,” anno 1825. Antea, p. 328.
[* ]No. 361: date of the order for printing, 8th May 1830: title, Court of Chancery.
[† ]House of Commons paper, March 18, 1828, No. 225, intituled “Evidence taken before the Finance Committee, and the Return laid before the Committee in 1828, which were presented to the House upon the 24th day of June 1829.—John William Warren, Esquire, called in and examined.”—Pp. 2 to 6.
[* ]See “Indications respecting Lord Eldon,” in “Official Aptitude Maximized,” &c., anteo, p. 348.
[* ]In this my conception of his Lordship’s frame of mind, do I stand alone? Of the contrary, the following epigram will present a demonstration. It has for its author an official person, who has for his duty the reporting his opinion of certain official proceedings: in how great a degree the severity of the character given of his said Lordship in that flight of fancy, goes beyond that given of him by this discussion, in the giving of which I am now occupied, will be visible to every eye. By this severity, two things will be demonstrated: 1. That this of mine is not singular; and 2. That so far is mine from being so, that one person there is, whose qualifications are objects of respect to more than one even of his Lordship’s devoted friends,—yes, one person, at least, there is, who even goes beyond me in severity.
THE FATE OF A BROOM. AN ANTICIPATION.
[‡ ]The fourth principle.] (1.) “Judges should be remunerated for their labour . . . . (2.) Judges ought to be well remunerated . . . . . (3.) Judges labour . . . . ought to be amply but not extravagantly paid for.”
[* ]Done away with.] A delicate matter this:—a truly delicate matter: and, each time, what is it that has been done? Answer: Just what was intended to be done.
[‡ ]Admit.] Somewhat wide admissions these. However, if given no otherwise than hypothetically, and for the purpose of the argument—not categorically and absolutely—let them pass. Let them not, however, pass unheeded—these grievances thus lightly dealt with; look at them a little more attentively.
[† ]£8000 a-year.] Whence this same sum of £7000 or £8000 a-year is to come, is what I am utterly at a loss to conceive.
Lost am I here in astonishment!
[∥ ]£12,000—£14,000.] Magnificent indeed is the show made by these figures. But this large cob-nut has been cracked, and the kernel has been found wanting. I could not but suspect as much; and, by a publication which has made its appearance while these pages were writing, this suspicion has been pretty well confirmed:a from which the true value appears to be = 0: to which, perhaps, may be substituted x; if x be taken for a very small number.
[a ]Droit le Roy: Author, a man whose name began with a B (wasn’t it Broderick?) an attorney, member of Lincoln’s Inn: in Ireland, he was hanged for murder. Object of Droit le Roy—and that object very decently accomplished—showing that all the doctrines, which the most determined ultra Tories could preach and wish to act upon, had for their support, and were fully borne out, by those delivered from time to time by learned judges, from the time whereof memory runneth not to the contrary, down to the time then present or not far distant. Whether bespoken or no, the dose was deemed too strong to go down, even in the estimate of George the Third, and his Lord Chief-Justice of Bank le Roy (Lord Mansfield,) and other cabinet ministers: for disavowal, it was according thus dealt with. I saw the book, and turned it over; but did not buy it. For many years past, I have made fruitless search after it. Could a copy be recovered, a second edition might be enriched with valuable matter from Lord Eldon: a specimen may be seen in “Indications respecting Lord Eldon,” inserted into “Official Aptitude Maximized—Expense Mimimized.”
[b ]See “Official Aptitude Maximized—Expense Minimized.”
[a ]This principle, it is true, we may, by and by, see his Lordship himself holding up to view. Yes: but how? let Pope speak—
[a ]Self-published speech of Henry Brougham, Esq. M. P., 7th February 1828, on his motion for a law reform commission, p. 5.
[* ]A fixed maximum.] Each fee a sum determinate and unincreasable? Yes: if indeed that be the meaning, so far so good. But of those same unincreasable sums, suppose the number left increasable, ad infinitum,—increasable, at the pleasure of those whose profit rises in proportion to the aggregate amount of them; increasable, by means to the existence of which the noble and learned eyes were open, in the manner and to the degree that we have seen: and these sums accordingly, by those same noble and learned hands, put into the pre-eminently learned though not ennobled pockets; between which and the noble one there is a communication. Suppose this, and you will see in what way it is that, upon his Lordship’s plan, “all temptation to multiply forms, and create delay and expense to the suitors” is to be removed. Moreover, here again comes the “stimulus:” for, whether by or notwithstanding such removal, “enough (their Lordships are assured) will be left as a fair stimulus to the speedy dispatch of business.” For refreshment, preparatorily to this part of the speech, instead of an orange, presents himself here to my imagination his Lordship taking out of the learned pocket a bottle, and out of the bottle a good swig of Lethe water, to enable him to forget that, in the case of an office sweetened with emolument, as the office has, so has the patronage of it, a determinate value; and that this value rises, and that in a determinate proportion, with the value of the office.Fixed or unfixed:—in one or other of these two cases must be the amount of this same maximum of this same muriate of gold: if fixed, off flies the stimulus: if unfixed, then flows in the temptation—that temptation, which, by men in the situation in question, always has been yielded to—that temptation, which, so long as man is man, will continue to be yielded to—that temptation, which, seeing all this, and seeing it so absolutely irremoveable, his Lordship is so determined to “remove.”
[a ]Of the above-mentioned arrangement, the mischievousness and blindness were demonstrated six-and-thirty years ago—demonstrated anno 1795—in Protest against Law Taxes, by the author of these pages; and taken off in pursuance of it was a considerable part of that portion, the produce of which, under the name of stamp duties, goes to the public revenue for all purposes, and could not be increasable by judges; this taken off, while the whole of the portion here in question—namely, that which has for its purpose the paying the judges, and which is increasable by those same judges, and to an unlimited amount, to and for their own benefit, was left on.
[a ]Apprehensive of the guilt of misrepresentation and injustice, I have hunted out a report made in a former year—a report having for its subject-matter the aggregate of the emoluments received by the Lord Chancellor, in the chancellorship of Lord Eldon. In it I find what follows: date of order for printing, 12th April 1827; No. 265; general title, “Bankrupt Fees. Returns and account of receipt and appropriation of fees in bankruptcy.” Particular account, pp. 12 to 17, both inclusive:—“3. An account of all fees received by the Lord Chancellor’s pursebearer, from the different branches of bankruptcy business, in each year from 1811 to 1826; distinguishing the specific appropriation thereof.”In page 12, at the end of the account of the first of these years, namely the year from “April 1811 to April 1812,” comes a statement in these words and figures:—
Whether, by this last account, my astonishment can have been lessened, the reader will judge: for, on adverting to it, the amount declared in proof of disinterestedness, turns out to be, instead of the 5 or 6 times, about 10 times as great as the real amount. At the time of this speech of his Lordship’s, at the making of which the magnifying glass through which he looked at the sum, had swollen it to the £7000 or £8000 a-year, the average was no more than this same £755: 10 : 3. As to the £1085 : 11 : 6, which was the amount of it in the year 1831, he could not, at that time, have known anything of it, unless he had himself caused it to be taken, and had it before him in manuscript.
[a ]Legal Observer, October 22, 1831. p. 386.