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APPENDIX. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 9 (Constitutional Code) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 9.
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In 1776, in his Fragment on Government, he proclaimed that the only proper basis of law in general, was the fundamental axiom, that it is the greatest happiness of the greatest number which is the measure of right and wrong. But in that work he confined himself to an analysis and exposition of the illogical definitions, contradictions, fallacies, and fictions of Blackstone on the subject of government. So unconscious was Mr Bentham of the defects in the English system of government, that six years afterwards, adopting the opinions of those by whom he had been surrounded in his youth, he supposed the constitutional law of this country would probably be found, upon examination, to be little short of perfection.*
The political changes in Spain and Portugal strongly excited Mr Bentham’s generous sympathies, and the result was his Letters on the Liberty of the Press and Public Discussion, vol. ii. p. 276 et seq., and his Three Tracts on Spanish and Portuguese affairs, vol. viii. p. 465 et seq., which were written in the year 1820. The object of one of these Tracts, was to point out to the Spanish nation, the uselessness and mischievousness of a House of Lords.† In 1821 he wrote his Letters to Count Toreno. The ostensible object of these letters, was an examination of the then proposed Spanish Penal Code; but they contain much that relates to Constitutional Law in general, and the Spanish Constitution in particular.
It has frequently been urged as an objection against the adoption of any code of laws, that, inasmuch as every possible case cannot be provided for, the code itself will soon be swallowed up by commentaries and reported cases: and the Code Civil of France, with its multifarious commentaries, is quoted in support of the objection. By a very simple contrivance Mr Bentham has entirely obviated this difficulty. As often as any article of the Code shall appear not to be sufficiently comprehensive, or explicit, the Judge will propose an amendment in terms, which will afterwards become law, and so be incorporated in the Code, or not, according to the will of the Legislature.* By this means, the rule of action will be preserved from being enveloped in that inextricable confusion, and consequent doubt, which renders a knowledge of it, in this country, scarcely attainable, even to those who devote their whole lives to its study.
Taken altogether, this is undoubtedly Mr Bentham’s greatest, as it was his latest work.† No branch of the science of legislation has he left untouched; no part, however minute, of the business of government, whether administrative or judicial, has escaped the grasp of his powerful mind.
Collectanea relating to Book ii. Ch. vi. Legislature, Section 20, Attendance and Remuneration, Art. 18. (Supra, p. 165.)
Extract from an anonymous work, intituled the History of the United States. London, 1826. Published by John Miller, New Bridge Street, Blackfriars.
Speaking of New Orleans in the year 1814, some time in the month of December,—“Disaffection” (says the author, p. 434) “growing bolder, martial law was proclaimed: the authority of the Civil Magistrate was suspended: and arbitrary power was assumed and exercised by the Commander-in-Chief. May no emergency hereafter occur, in which a military officer shall consider himself authorized to cite as a precedent this violation of the Constitution.”
To all appearance, it was by this proclamation of martial law that New Orleans was saved: saved from capture, perhaps from destruction: but for this substitute to regular legislation, one or other catastrophe would have taken place.
This is but one of divers accidents to which every Government stands exposed, and by which on pain of suffering, boundless in amount, a demand for immediate action on the part of the all-embracing Legislature may be produced. Foreign war, civil insurrection, pestilence, famine: here are already four, every one of them but too frequently brought to view by experience.
The following information, relating to this subject, the author received from John Neal, Esq., an advocate in the Supreme Judicatory of the Union, January, 1826.
“The members of Congress, of the United States, are elected for two years. They meet in the first Monday in December, and rise at the end of about four months, upon the average. They sit, therefore, only one-third of the time. They may be called together on forty days’ notice, however, at any intermediate period. But, although it requires time to make a good law, and the President has power to provide for such events, whatever they may be, as are likely to require extraordinary power—as if the country be invaded, or if a rebellion should break out,—still, cases have occurred where much distress might have been saved to the people, if the chief Legislature had been in session, with power to pass a law quickly.
“By the Constitution of the United States, it is provided that no State of the Confederacy shall pass a law ‘to impair the obligation of contracts.’ By the same Constitution, power is given to the United States to pass a general Bankrupt Law.
“The several States, or the majority of them, have been in the habit of passing insolvent laws, which had the effect sometimes of discharging both the person and property of a debtor. This habit continued for thirty years. At last, however, a question was made for the Supreme Court of the United States. That Court decided, that all discharges granted under State authority, under such and such circumstances, were void; the law, under the authority of which they were granted, being void, as impairing the obligation of contracts. The effect was terrible. The country was agitated in every direction. Houses were entered and stripped—the houses of wealthy men, who had been discharged years and years before. Nothing was heard but complaint. Hundreds and hundreds of old judgments were revived, a multitude of executions issued, and thousands of new suits brought.
“A national bankrupt law was required. But the Legislature were not in session, or, if in session, they had not time enough left before they were to break up, for passing a uniform system of bankrupt law.
“The distress continued, therefore, till it found a remedy, or died away, as the outcry did. So that when the Congress did meet, they were not much pressed about the matter. A law was half prepared, but they broke up, and went home before it was finished—and so was it the next year—and the year after, and so is it now. Up to this hour they have no bankrupt law in the United States of America, though thousands and thousands of people are praying for it as their only hope.”
Collectanea relating to Ch. xi. Ministers severally, Section 10, Health Minister (Supra, p. 443.)
(From the Examiner of 9th July, 1831.)
“Sanatory Regulations.—A circular, of which the following is a copy, has been delivered to the inhabitants of St James’s, Westminister, viz.:—‘It is strongly recommended to the inhabitants of this parish, to have their dust bins emptied at least once in every week, the fermentation and putrefaction of vegetable and other matters therein being a great cause of infection at this season of the year.’ Unless the Board of Health is superintended and stimulated by the Press, it will proceed in the mole-eyed and bit-by-bit manner in which the functions of government are usually performed by government itself, as well as those to whom it delegates authority. After the arrangements of quarantine, and the sanatory regulations against the cholera have been made, the medical commission will probably, if left to itself, become a sinecure; the government acting ignorantly, and without plan, having assigned to the commission only one object, when, with the same expenditure of money, the services of the commissioners might be directed to a number of other objects of permanent importance, for the improvement and preservation of the public health. Such a body would render great service, if, for example, they obtained reports of the districts in which fever patients are the most numerous, or in which epidemics are the most frequent and extensive, and if they investigated the local causes of these diseases, and took measures for their removal. Why should not such a commission be instructed to frame sanatory regulations for the maintenance of cleanliness in the streets, and for the guidance of proper officers in the execution of the existing laws? It does not appear to have occurred to the Home Department, that the police officers, most of whom are occupied in patrolling their rounds from morning to night, for the protection of persons and property, might be employed to enforce such regulations without any detriment to their other duties.*
“A correspondent suggests, in anticipation of an epidemic or contagious disease making its appearance in this metropolis, the necessity of organizing, in each parish, a sanatory committee, composed of active, intelligent, and humane individuals, who should be empowered by the magistrates to visit all dwellings occupied by the poorer classes, and, where there is a want of cleanliness and ventilation, to cause the necessary measures to be carried into effect: such as whitewashing, and proper openings for the free circulation of air; to be done at the expense of the landlord, (if he can afford it,) or by means of parish subscription. The above committee should also inspect uncovered drains, or stagnant pools, that may exist in any part of the parish, and cause the former to be covered, and the latter to be filled up; to the first, the Sewer Company will, no doubt, give its sanction and assistance, as tending to contribute to the public health.”
Collectanea relating to Book ii.—Ch. xii. Judiciary collectively.
Section 13, Justice for the Helpless.
From the Examiner of Sunday, 19th June, 1831.
“Expense of Justice for Depredations committed on the Poor.—A girl, named Sophia Chapman, was yesterday committed for trial on a charge of robbing a foreigner, named Ben Hyam, of a half-sovereign. On the prisoner being committed, the Turk said that he could not attend at the Sessions, as he got his living by travelling round the country; and he would, therefore, much rather put up with the loss of the half-sovereign.—Mr Marriott, on this, said that he must find two sureties to answer for his appearance at the Old Bailey.—The prosecutor said he could do no such thing; and he was therefore committed to jail in default. It is almost impossible to describe how astonished the poor fellow was at this specimen of English Law. Had Basil Hall been so served in a foreign country, we should have liked to have seen his comments on its institutions. Montesquieu says that in Turkey justice is thus administered:—‘The cadi hears both the plaintiff and defendant; orders both a drubbing on the spot: and there is an end of the matter.’ Ben Hyam will have time, during a protracted imprisonment, to meditate on the superior wisdom of the mode in which it is administered in his own country, and regret that he was not in a country in which he could have a drubbing at once, and the matter be thus ended.” The Morning Chronicle remarks upon the case:—“The committal of a poor Turk, by a Queen Square magistrate, for inability to find security to prosecute the person who robbed him, would almost lead one to believe that the Essex squire was not so far wrong when he said that the magistrates were they who knew least of the law. There can be no doubt that the committal is according to law: but there can be as little doubt that such a law is unjust towards the sufferer, and injurious towards the community. But, like many absurd laws, it subsists because the poor alone suffer from it. To detain a poor man who derives his subsistence by travelling about the country, in order to prosecute for a trifle, may be to him of a most serious consequence. In the case of a rich man, the case would be trifling; he could easily obtain securities, whom he could indemnify, if more than his personal recognizance should be demanded. The moral is obvious to all who may read the account of the proceedings. It is too bad to be robbed, but still worse to be sent to prison to secure the punishment of the robber. The thief, of course, calculates on this unwillingness to prosecute: and he is not far out in his calculation. Such is the dread of being obliged to prosecute, entertained by people engaged in business in London, except the loss be serious, or the thief has particularly provoked them, that they are exceedingly anxious to keep the matter quiet. We remember another case illustrative of the hardship of our lengthy and expensive penal procedure to labouring people, and persons in the middle rank of life, who are compelled to attend as prosecutors and witnesses. A labouring man, who was the occupier of a cottage in Middlesex, detected a fellow in the act of carrying away one of his geese from the common. The thief was seized, carried before a magistrate, (who will be known to many by the fees demanded,) and committed for trial. The unpaid magistrate (or the magistrate’s clerk, rather, in his name) exacted from the labourer six shillings for fees. The value of the goose attempted to be stolen was only four shillings; so that, at the outset, the administrator of the law deprived the poor man of two shillings more than the thief would have taken from him. But the sufferer was also bound over to prosecute; and, what with attendance before the Clerk of the Peace to get the bill of indictment framed; before a Grand Jury to get the bill found; and waiting until the thief was tried, and to obtain his costs,—sixteen days of his time were expended. This was before the establishment of a second court. Each day to him was worth 6s.: but he was only allowed 3s. 6d., which barely paid his expenses in coming to town. His lowest loss was 3s. 6d. a-day: so that the total loss, including the 6s. fees, which were not allowed back, (and which, in truth, were illegally exacted,) amounted to £3, 2s., or the value of fifteen geese. The thief only attempted to take one goose—the law swept away more than the whole flock. Injuries of this kind are daily perpetrated; and the expense of justice is impunity to the depredators. It is only the rich, who have nothing to do, who can prosecute without inconvenience. A thief is usually a martyr for the sake of the others of his fraternity, to protect them in the commission of crime. A prosecutor is a victim to deter other honest people who are plundered from prosecuting. The instances are not unfrequent, where persons who have once prosecuted, abscond from redress when they have been robbed a second time. The mischievous operation of our penal procedure, and the serviceable elisions that might be made in it, have already been demonstrated at full length. There are few who have had better opportunities for observing these evils than Sir Thomas Denman; there are few who are more free from the vulgar prejudices against innovation, entertained by mere technical lawyers: for he admits the inutility and mischief of Grand Juries. We trust that, after the Reform Bill is carried, he will propose reforms in penal procedure more comprehensive and efficient than the bit-by-bit reforms brought forward by Sir Robert Peel.”
“COMMON LAW REFORM.—REMANET FEES.
“Sir,—Observing the Judges have at length put their shoulder to the wheel, and promulgated some rules tending to reduce the expense of legal proceedings in the first stage of a cause, allow me, through your medium, to call their attention, as well as the common law commissioners, to the urgent necessity of devising some scheme, during the vacation, by which the remanet fees, on the untried causes in London and Middlesex, may be avoided.
“To you, sir, and the unprofessional part of the public, it may be some information to learn, that these fees, and which in the course of twelve months amount to an enormous sum, are not paid either for expediting the trial, or for the trial, but actually, and for no other reason, than the total inability of parties to get their causes tried. Allow me to go a little into detail, and to show the absurdity, as well as the necessity of an immediate alteration. In Middlesex, at the end of the late term, there were 405 untried causes in the King’s Bench alone. These are technically called remanets; 126 additional causes were placed in the list for the sittings after term, making a total of 531 causes. In London there were near 600 remanets to the sittings after term, and with the new causes for those sittings, there will no doubt be a total of 800 causes. The term ended the 13th instant, and with the exception of one day, Lord Tenterden has sat in Middlesex ever since, devoting four days for the trial of common jury causes, five days for special juries, and this day for undefended causes. The last common jury cause appointed for trial was No. 73; so that, with the exception of the undefended causes to be tried to-day, and the special juries that have been disposed of this week, there will remain 458 causes untried in Middlesex alone, and which will stand over till Michaelmas term. In London, seven days are appointed for the trial of common jury causes, and six days for special juries. Now, sir, my complaint is this, that in all human probability there will be in the King’s Bench alone, about 1000 causes standing over until Michaelmas term, and (as very few are tried in the term) there will be paid by every plaintiff at the office of the Marshal and Associate (and, I presume, for his benefit, though that is immaterial for the object of this letter) 18s. on every cause, for no other reason than as before stated, because the parties are delayed, and cannot get their causes tried. But, sir, this is not all: the fortunate officer entitled to the 18s. on each cause, is not the only one benefitted,—other fees are paid to other officers, and all for the same cogent reason. In fact, to give your unprofessional readers, and those who have the power of remedying this grievance, some idea of its extent, it will be sufficient for me to say, that 1000 causes, standing over in the way described, will, at the expiration of the next term, be a charge to the unsuccessful litigants alone of upwards of £4000. This is certain, for even if parties settle their differences without a trial, the remanet fees, down to the settlement, must be paid before the record is withdrawn, and the cause struck out of the paper.
“I am afraid, at this particular period, I have already trespassed too much on your indulgence. If, however, you think these remarks are worth noticing, I may in a few days trouble you again.—I am, sir, your obedient servant,
Section 19, Contested-interpretation-reporting Function.
From the Morning Chronicle, August 4, 1827.
. . . “One objection to the indictment, namely, that it did not state the accident to have occurred on the king’s highway, or in a public road, (and all the precedents showed that such an averment was necessary,) was overruled by the Chief-Justice, (Best,) who observed, that he had little doubt ‘the precedents would furnish instances of nonsense of all sorts.’ But it was then objected—it was alleged that the coach was drawn by two mares and two geldings, which allegation had not been supported by proof. This was a thumping objection—two mares and two geldings stated in the indictment, and no one to prove the averment!
“The Lord Chief-Justice then said—‘He feared that the objections were fatal. At first, he imagined that there was a clause in one of Mr Peel’s acts which cured the error, but he found such was not the case. However, he might observe, that when that Right Honourable Gentleman was preparing the bills for the amendment of the criminal law, he consulted all the Judges upon the clauses he proposed, and among them was one which would have been amply sufficient to meet these objections. He (the Lord Chief-Justice) had at the time expressed his opinion in favour of that clause, but Mr Peel, who, with great propriety, determined to be governed by the advice of the majority, struck it out, as the majority of the Judges certainly had thought it would be introducing too great a laxity in pleading.’ ”
Section 20, Judges’ Eventually-emendative Function.
From the Examiner of Sunday, June 5, 1831.
“bit-by-bit legal reform.
“Cranage, Gent., Attorney, against Price.—In this case the declaration, which was for slander and libel, had been referred to the Master, for such counts to be struck out, as he might think unnecessary. It appeared there were twenty counts for the slander or oral matter of complaint, and eight for the libel or written; many of which differed from one another only by a slight inversion of style, and were identical in effect and meaning. Thus, in one count the charge was, that the defendant ‘had published a libel.’ Of the counts for slander, the Master struck out twelve; and of those for the libel, he struck out four; and he curtailed the remaining. But as it appeared that the declaration had not been drawn by the plaintiff himself, but by a pleader, whether at or below the bar was not stated, and as the instructions given by the plaintiff were proper, the Master had refused the defendant the costs of the disgusting and rejected superfluity, though he would have done otherwise, and granted the costs, could he have enforced them on the pleader. Hinc illæ lachrymæ: the costs formed the substance, the words spoken the pretext only of the quarrel: and the Court and the Bar, who evinced a vivid perception of the ludicrous, at the disappointment of the complainant, in obtaining nothing more than the reduction of the declaration to orthodox dimensions, were convulsed with laughter; whilst Mr Addison, with virtuous indignation, ‘denounced the scandalous corruption of the science of pleading.’ However, the conclusion was tragic.
“Mr Baron Garrow said, that ‘such practices were the more scandalous, as the commissioners, supported by the Legislature and by the courts of justice, were devising every means which were within their power, for the abbreviation and simplifying of law proceedings; and he hoped that the present application would show, that the suitors for justice were not, with impunity, to be made the objects of oppression through the means of any occupation, however little exposed to view, however mysterious that occupation might be.’ Undoubtedly the Courts have the power to punish them without the intervention of Parliament. But it is believed that the Courts, or those Judges whose influence is predominant, instead of supporting, as Mr Baron Garrow says, have opposed alterations in special pleading. It is evident that the Courts would be glad that the mere expression of abhorrence at individual instances of abuse, should satisfy the public; but the policy, imitated from the boroughmongers, of victimizing one unlucky attorney or pleader, in order to preserve a bad system, is now too well appreciated to be successful. The day is come for the thorough reform of legal procedure; and special pleading, if retained, can be so,—not in the place of a universal instrument, but as subordinate to the preliminary examination of the parties. The result of the Master’s inquiry into the above case, must indeed convince the public of the general inaptitude of special pleading as an instrument of judicature. Urged by Mr Addison to the extreme, the Master could reduce this twenty-eight-fold declaration to only a twelve-fold one; that is, each count being considered in law as a declaration, the Master thought twelve special declarations necessary to bring fairly before the Court one cause of action. Were special pleading employed only as a supplementary process in special cases, and as subordinate to the preliminary examination, the proceeding would vary but little from the ancient system, in which the litigation was conducted ore tenus, (that is, in the presence of the Judges,) and was continued by successive imparlances, (that is, successive adjournments,) until this preliminary investigation had completely disclosed to the Judges the true issue, when not until then, the pleadings and issue were drawn and recorded.”
Section 25, Judges’ Attendance, and Section 27, Judges’, &c., Remuneration.
The following letter, giving an account of the days of sitting in the French Judicatories, was written by a French Avocat, M. Rez, (then in London,) in answer to questions propounded by Mr Bentham, in July 1826:—
“1. Si l’on excepte les Juges de Paix, à l’égard desquels la loi a cru assez important de fixer leur obligation de siéger au moins deux fois par semaine, &c. apparemment parceque c’est une magistrature nouvellement établie,—ce n’est que par des réglements émanés, tantôt du gouvernement, et tantôt des cours ou tribunaux, qu’on a fixé ce qui concerne les jours et heures de séance, les vacances, &c. La régle générale est, que les réglements du Gouvernement ont déterminé à cet égard quelques regles communes à tousles corps judiciaires du royaume:
2. Et que chacun de ces corps a le pouvoir de régler les points secondaires et surtout ceux qui dependent des circonstances particulières à chacun d’eux.
3. Or, le nombre de jours que les cours et tribunaux, (autres que les Juges de Paix,) doivent siéger chaque semaine, est laissé au réglement de chacun de ces corps.
4. Dans ceux, où il y a beaucoup d’affaires, comme à Paris, et quelques autres siéges, il y a séance tous les jours, excepté le dimanche.
5. Je parle ici des affaires civiles, ou celles de petit criminel, que nous subdivisons en correctionelles, et de simple police.
6. Quant au grand criminel, quand une affaire est commencée, elle n’ a pas d’interruption, jusqu’ à ce qu’elle soit terminée.
7. On tâche pourtant de fixer les causes de manière, à ce qu’on puisse se reposer le dimanche, c’est-à-dire, en calculant de manière à ce que, le samedi il n’y ait pas de cause assez longue, pour qu’elle ne puisse être finie le même jour.
8. Quant aux vacances, il n’y en a que pour le civil; et les affaires criminelles, correctionelles, et de simple police, vont leur train toute l’année.
9. Durant les vacances, qui durent depuis le 1er Septre, jusqu’au 1er Novbre., il y a, pour le civil, une chambre des vacations, c’est-à-dire, une des sections du tribunal, ou cour, s’il est composé de plusieurs sections, (ou tout le tribunal, s’il n’y a qu’une section, mais siégant un peu moins souvent,) qui expedie les affaires urgentes. Ceci est assez incommode pour les petits tribunaux, qui n’ont qu’une section, et qui ne peuvent guère quitter leurs siéges, que peu de jours.
10. Je dois ajouter que les réglements des tribunaux, ou cours, doivent être approuvés, par le Garde des sceaux, c’est-a-dire le ministre de la justice.
11. Il y a aussi des petites vacances de 8 jours à Pâques, mais je crois qu’elles ne sont pas légalement autorisèes; et dans beaucoup de tribunaux de province, on ne les fait pas.
12. Je ne sais si l’on a changé ces régles depuis mon exil, mais je pense qu’en substance, les régles seront restées les mêmes.
13. J’oubliais de dire, que lorsqu’on est bien pressé, l’on a deux séances par jour. En général, chaque séance, dure trois heures, au civil et au correctionnel; car au grand criminel, on siége souvent 8, ou 10 heures de suite, sauf un très petit intervalle, pour le repos des juges et des jurés.”
Mr Bentham sent a copy of the above remarks to his friend, the late Jean Baptiste Say, in order that they might be submitted to the consideration of some practising advocate, and received the following reply:—
“Paris, 18me d’Août, 1826.
“Mon Chèr Maitre,—
J’ai consulté sur votre papier M. Girod de l’Ain, Conseiller à la Cour Royale, Paris. Je vous envoie sa réponse avec la seule observation qu’il ait ajoutée à vos notes, qui sont très exactes. Nul n’en pouvait mieux juger, puisqu’il fait partie de nos tribunaux. Notre grand mal n’est pas là. Il est dans l’influence que le gouvernement s’est reservée sur les tribunaux en nommant et en avançant les juges, qui peuvent à son gré passer d’un tribunal inférieur à un tribunal supérieur, d’une petite ville, dans une plus considérable, du grade de simple Conseiller à celui de Président, de Premier Président, de Procureur Général, de Membre de la Cour de Cassation, de Pair, avec ou sans héréditè, avec ou sans pension, sans compter les autres faveurs de Cour. Aussi en matières où le gouvernement est interessé, les jugements sont détestables. La presque totalité de nos juges sont absolutistes et dévots. S’ils ont dans deux ou trois occasions contrarié les vues du pouvoir, c’était par esprit de secte. Tous les restes de nos anciens parlemens sont Jansénistes et animés d’une haine inextinguible contre les Jesuites. À ce tître ils protègent la liberté des journaux, qui les vexe. Nous ne sommes pas plus avancés que du tems de Voltaire, qui disait quand les Jesuites furent détruits: ‘Nous sommes débarrassés des renards, mais nous n’en serons que mieux la proie des loups.’ Nous ne respirons que lorsqu’ils se battent. Au reste ce débat n’aura malheureusement pas, de suites serieuses. Our King est de la congrégation, c’est à dire Jesuite de robe courte, Jesuite civil, et l’on assure qu’il a dit dernièrement, ‘Je saurai bien arrêter toutes poursuites; mon prédécesseur a donné des lois à la France; je lui donnerai une religion.’ En attendant, le pouvoir s’est arrogé le monopole de l’instruction de l’enfance, même dans les pensions particulières, et l’on déprave le bon sens des Français, à la journée.
“J. B. S.”
Reply of M. Girod de l’Ain to M. Say.
“17 Août, 1826.
“Monsieur et respectable Ami,—
Je suis bien flatté de la confiance que vous m’avez temoignée en me consultant sur la note de M. Jérémie Bentham; je vous la renvoye avec très peu d’observations sur son contenu, qui ne m’a pas paru en exiger davantage. Veuillez, je vous prie, en offrant à ce vénérable publiciste l’expression de ma très haute estime, et du cas particulier que je fais de ses ouvrages, l’assurer que je mettrai toujours un sincère empressement à lui fournir, sur les matières dont il s’occupe, et qui peuvent être de mon ressort, tous documens et explications, qu’il voudrait bien désirer de moi.
“A. Girod de l’Ain.”
The only observation of M. de l’Ain’s, on the remarks of M. Rez, referred to No. 11, respecting vacation days. It is as follows:—“Pâques et Pentecôte, et même de trois ou quatre jours à Noël: elles ne sont point autorisées, mais on les prend généralement.”
In addition to M. Rez’s remarks, Mr Bentham appended the following question in French:—“Je ne trouve pas que les honoraires des Avocats, sont compris dans le Code Napoleon. Quelle est la plus petite somme qu’il est d’usage de reçevoir à ce titre?” To this question M. Girod de l’Ain sent the following indirect answer:—“Le tarif des frais de justice taxe les honoraires d’une plaidoyerie d’Avocat à une somme très modique, et c’est l’Avoué qui la perçoit à son profit. L’Avocat est payé extraordinairement par la partie, en raison de son importance à lui même, de celle de la cause, ou de sa difficulté, de la fortune du plaideur &c. L’usage interdit aux Avocats toute action en justice pour la répétition de leurs honoraires: cependant aucune loi ne la prohibe, et un jugement récent a accueilli la demande faite par un Avocat pour ses honoraires.”
Section 31, Judges’, &c., Inaugural Declaration: Art. 10, Non-electioneering.
From the Caledonian Mercury, 19th May, 1831.
“Why was the Lord Justice-Clerk absent from his duty yesterday at the Court of Session? Because, it is said, he preferred going to the Ayrshire election. So, here is a Judge receiving £4000 a-year from Government; his court is prevented from sitting, and to which he is bound to give regular attendance; yet, in defiance of that Government, and indifferent to the interests of the suitors, he has gone to give his vote and support to the candidate who is opposed to the measures of his Majesty’s Government, and the general voice of the people. We have more than once had occasion in this Journal to express a very decided opinion against the practice, which has been but too prevalent in this country, and in this city, of Judges mixing themselves up in elections of all sorts. In the course of last year, on the introduction of the new Scotch Judicature Act, we expressed our hope that it would be finally put an end to; but nothing was done at that time to remedy the abuse. The present Government, however, has had the firmness to introduce a clause into the Reform Bill, depriving their Lordships, as well as the Sheriffs of Counties, of the privilege of voting; and we suppose, that with so stanch a partyman as the Lord Justice-Clerk, this alone was a reason for making him even more than usually eager in his hostility. Of the great indecency of this practice we never heard two opinions from influential persons, for this plain reason, that the Judges of the Court of Session are the only Judges who, by Act of Parliament, have the power of determining all questions that relate to the validity of votes in counties, and the due or undue election of magistrates for burghs. Nothing can illustrate the great impropriety of such a judge as the Lord Justice-Clerk interfering in elections more strongly than the following case:—Not long ago, a vote in Lanarkshire was challenged, when the claim for enrolment was made for the freeholders (who, as most of our readers know, have the power of deciding judicially on such matters;) but the unfortunate gentleman happening to be a Whig, the Tories determined to keep him off the roll, and, among others, a Tory judge was present, and voted against the enrolment. A suit in the Court of Session was the result, and it happened, curiously enough, that the case, according to the routine of business, came before the very Tory judge in the Court of Session, who had voted against the enrolment in the Court of Freeholders. The Whig gentleman, whose vote was challenged, deemed it right to decline the jurisdiction of this judge, and the case was verbally reported to the Court, when the Lord Justice-Clerk held, that although, in his opinion, the declinature was not well founded, still, as the judge himself had that morning consented to the removal of the case to another judge, it was unnecessary to say more about the matter. Still, in the Lord Justice-Clerk’s opinion, a judge may go electioneering; and although he votes against a freeholder’s claim in the Court of Freeholders, that, nevertheless, that circumstance does not incapacitate him from determining on the validity of the appeal of the claimant against the decision of the Court of Freeholders, when it happens to come before him a few weeks afterwards sitting as a judge of the Court of Session.”
Section 34, Justice Chambers.
From the Morning Chronicle, June 4, 1824.
“Yesterday the Old Bailey New Court was opened for the first time. The Recorder presided. The form of the court is square, and without ornament. The light falls down from the ceiling; behind is a spacious gallery, admission to which is to be obtained only by tickets from the members of the Corporation, who are entitled to pass in their friends in this order:—Each sheriff passes four; each alderman four; and each common-councilman, two per diem. The box for the law students and reporters is placed opposite to that of the jury. At the table there is a double row of seats; the front for the counsel, and the back for the attorneys; an arrangement frequently wished for, in the old court. But perhaps the new court is the worst contrived court in the metropolis, or anywhere else, for sound; and the spot on which the prisoner is to stand is perhaps the worst part of the court for hearing. We regret to say, that the two new courts at Guildhall, which are nearly finished, have been built on the same plan, and, of course, must be subject to the same condemnation.”
Memorandum by the Author.—In the Morning Chronicle, 5th June, 1824, is an account of a controversy between the Aldermen and the Common-Council, about the right claimed by the Common-Council to give admission tickets. No care about admission room for the public at large on either side.
From the Morning Chronicle, Nov. 12, 1824.
“construction of the new court.
“It might have been expected, in this age of improvement, when everything was performed upon scientific principles, and when even the very stones in our roads were laid down with almost mathematical precision, that the architects of our courts of law would have deemed the convenience of the public worthy of some consideration. We do not intend to say that it has been wholly neglected; on the contrary, we give the architect every credit for the improvements with respect to the size of the court, and the freedom of admission and egress. The new court is considerably larger than the old one; and instead of there being but one door through which judges, counsel, students, jurors, attorneys, and witnesses were obliged to pass, there are now six, each of which communicates only with a particular portion of the court, so that much of the confusion and bustle incident upon the determination of one cause and the commencement of another is avoided. The bench is placed at the eastern end of the court, and the seat is elevated about six feet above the floor; the back is formed by cloth of a deep crimson, and on each side are hung curtains of the same material. Over the bench is a sounding board, supported by four Ionic scrolls, which, together with the board, are painted of an oak colour. The Associate and Marshal have seats directly under the bench; and between them and the sergeant’s table there is a space of about five feet, through which the witnesses pass when called into the box. Immediately behind the sergeants are the seats appropriated to the junior counsel, and in the rear of them, to the attorneys in waiting; while those who are engaged in the cause under discussion, have seats just below the sergeants.
“The remainder of the court is allotted to the witnesses in attendance, and to the public,—the whole rising from the sergeant’s table to the western end, in the form of an amphitheatre. The general appearance of the court is pleasing, and the result in the mind of a causal visiter, who came only to see, would undoubtedly be favourable; but appearance in a public court is not all that is required. In alluding, some time since, to the principle on which these courts were to be constructed, we declared our opinion that, unless some alteration was made in the arrangement then proposed, the echo would be so powerful as to render everything that was said indistinct, if not nearly inaudible. The suggestion was not attended to, and the result is just as might have been foreseen. The counsel endeavour to speak loudly, in order that they may be heard, but the only effect of their greater exertion is an increase of the noise, while the distinctness of sound is wholly lost. The fact is, that the roof is so high, and that space which, if smaller, might be called the lantern, so contrived, that the sound is completely dissipated. Now we by no means intend to complain of the increased size and loftiness of the court, which, indeed, we consider an advantage grossly neglected by the architects of the courts of Westminster; but what we object to is the want of attention to that proportion necessary to the proper conveyance of sound, and especially to the neglect of the architect in not having erected side galleries, which, while they increased the commodiousness of the court, would have contributed greatly to the facility of hearing. We cannot but regret that architects of the present day will not condescend to study more accurately the proportions of the rooms built by Sir Christopher Wren, who has furnished the most perfect models of the kind, so intimately was he acquainted with the effect of sound. And so minutely did he study the proportions of his buildings, necessary to render its conveyance perfect, that not one of the edifices which he has constructed for that purpose, can be altered with advantage. We have heard that some changes were recently made in one of his churches, and it being thought expedient to remove the situation of the pulpit, the attempt was made, but was afterwards abandoned, as it was found impossible to obtain the sound so well as in the precise spot on which he had fixed. The situation of the witness box, which in the new court is placed in a corner, exactly between the bench and the jury, is also liable to the strongest objections; but on this subject we need make no remark, contenting ourselves with simply relating what fell from the Chief-Justice in the course of the day. One of the witnesses was desired by a learned counsel to speak louder, as it was impossible to hear him, when the Lord Chief-Justice immediately observed:—‘From the situation in which the witness stands, he necessarily speaks to me in a whisper; that, however, is not his fault.’ Last, but not least, among the grounds of serious complaint, is the position of the students’ box. The architect, as if with the design of limiting the number of the future Vaughans and Pells of this bar, and of discouraging the study of the law in general, has allotted only three seats to the students; although it is believed that there are about three thousand who, in that character, have a prescriptive right to accommodation. The part of the court in which that seat is placed is at the right hand corner of the bench, and at such a distance from the witness and the jury, as to render every chance of hearing what passes completely impossible. This, however, is not the only objection: behind the seat is a door leading to an ante-room, appropriated, we believe, to the sergeants, and the passage to which was this day occupied by the officers and servants in attendance upon his lordship. The seat is therefore in a position which seems to indicate the propriety of devoting it to their use. The students’ box might, with much greater advantage, have been placed by the side of the jury box, and instead of being thus satirically contracted in its size, should have been constructed so as to afford the students every advantage for hearing and taking notes. This arrangement is rendered so much the more necessary, as the gentlemen connected with the press, who are also students, are, under the present system, subjected to innumerable inconveniences. The alteration of the witness box is also a point of paramount importance. The new courts in London are constructed upon the same plan as the county courts at Norwich; and during the last assizes there, the Lord Chief Baron found it necessary on every trial to have the witnesses placed on the bench, as, from their proximity to the counsel, they always pitched the voice in such a tone, as to render them inaudible to his lordship and the jury. We trust that the Committee for Improvements will, for the credit of the city, attend to these matters, and as speedily as possible make the requisite alterations.”
Collectanea relating to Ch. xvi. Quasi-Jury.
From the Morning Chronicle, 1st December, 1831.
“We call the attention of our readers to an extract from the Brighton Guardian, in another column, on the subject of a trial in which the proprietor of that Journal was concerned. It appeared to us at the time astonishing, after the defendant, Cohen, had in all essential respects established his defence, and after the fair and candid charge on that evidence to the Jury, that such ruinous damages should have been given. But the proprietor of the Brighton Guardian had the misfortune to have enemies for Jurors; and it appears that they were determined to make the most of the opportunity for gratifying their vengeance which the trial presented to them. The sort of justice dealt out to him, may be inferred from the declaration of a juror when remonstrated with,—‘Ay, but this is not the only case; this editor has been attacking all our institutions; nobody and nothing is secure against him, and so we determined to put a stop to it or to him.’ ”
Collectanea, relating to Ch. xxii. Appellate Judicatories, Section 8, Seats, where.
“Reasons by C. Cameron, Esq., Commissioner for inquiring into the State of the Law in Ceylon, why the Appeal Judge in Ceylon should go Circuits to hear Appeals. 1830.
“In a good system of Judicature, much must be left to the discretion of the Judge.
“2. In order that the Judge may not abuse his discretion, he must feel that he is observed by somebody, whose good opinion is of importance to him.
“3. In England, the observation of the public answers this purpose better than any other.
“4. In Ceylon, the opinion of that public which constitutes the audience of a Provincial Judge, has little more effect upon the Judge than the opinion of a flock of sheep has upon the shepherd.
“5. It must be observed, also, that there is for the purpose now in view, no printing-press in Ceylon, and no probability that one will exist for a long period.
“6. These things being so, I can devise no better scheme for laying the Provincial Judges under a real responsibility, and for giving something like the requisite weight to the opinion of the public, which constitute his audience, than sending the Appeal Judge periodically into his district, not only to rectify any mistakes that may have been committed in point of law, but also to rehear any cases in which, through mistakes or misconduct, a rehearing may be desirable.
“7. In the Provincial Courts of Ceylon there are no advocates. The native Proctors are ignorant and knavish; and the pleadings and evidence upon which the judge decides, are translations made by native interpreters of the statements made by the parties and their witnesses. The Proctors and interpreters have a strong interest in conciliating the favour of the Provincial Judge.
“8. Under these disadvantages, (and none of them seem to admit of immediate remedy,) there is little chance that an appeal from a Provincial Judge, or an application for a rehearing, should be carried by the post to the Appeal Judge in Colombo, in a shape calculated to procure a decision disagreeable to the Provincial Judge.
“9. But if the Appeal Judge comes to the place where the Provincial Judge holds his Court, the parties and their witnesses may have the same access to him that they have to the Provincial Judge, and the latter will always act under the knowledge that his proceedings will be really subject to the revision of a Judge of superior learning, habitually controlled himself when in the exercise of his original jurisdiction at Colombo, by as much of public opinion as is to be found in the island, and in the exercise of his appellate jurisdiction on circuit, by the presence of the officers of his court, of the Advocate Fiscal, and of the Proctor for prisoners and paupers, who, being all Europeans, may be considered as the representatives of the public of Colombo.
“I use these designations, because officers now exist who bear them, and who now accompany the Supreme Court on its criminal circuits.”
Collectanea relating to Ch. xxiii., Professional Lawyers.
Section 1, Professional Lawyers, who.
“Law.—Court of King’s Bench, Westminster.—Collier v. Hicks and Others.—This was an action by an attorney at Cheltenham against Sir W. Hicks and another magistrate of that town, and two of their officers, for expelling the plaintiff from their Justice-room. The case came on upon a demurrer to two special pleas of justification. The facts were these:—In December 1829, an information was laid before the magistrates at Cheltenham, by one Latham, against the proprietors of a stagecoach for not having a plate with a number upon the coach. On the hearing of the information, the plaintiff, Mr Collier, appeared, and proposed to act as an advocate in taking notes and conducting the proceedings on the part of the informer; but the magistrates refused to let him act in that character; and on his persisting in his attempt to do so, he was removed from the Justice-room. The question now for the decision of the Court was, whether the plaintiff had a right to be present at the hearing of the information before the magistrates, as the attorney of the informer, and to take notes of the evidence?
Their Lordships delivered their opinions seriatim, at considerable length: the substance of their judgment was, that the magistrates had a discretion in common with other courts of justice in regulating their proceedings, of determining who should be heard before them in the character of an advocate. The pleadings in this case did not raise the question as to the right of any person merely taking notes, but the plaintiff put it on the ground that he had a right to act as an advocate in arguing or expounding the law, and examining or cross-examining witnesses; and it had been very properly said, that if the magistrates could exclude an attorney, they had also the power to prevent a barrister or any one of the public from acting as an advocate. The Court was of opinion that the magistrates had that power, although frequently, in the exercise of their discretion, they allowed members of either branch of the profession to conduct cases where the accuser or the defendant required legal assistance. The superior Courts of Westminster Hall had the power, and were bound, according to ancient usage, not to allow any persons to plead before them but barristers who were members of one of the inns of court; and in the Court of Common Pleas, none but barristers who had attained the dignity of sergeant were allowed to practise. It might be proper that either party should have the advice and assistance of a counsel or attorney in some cases; but it did not follow that it was desirable in all cases; for it must necessarily lead to expense, as the other party must be provided with the same assistance to be on equal terms with his adversary. It might also be doubted whether such a practice was favourable to the due administration of justice; for members of either branch of the profession in discussions before magistrates, might urge technical objections quite beside the justice of the case which must have the effect of embarrassing persons not accustomed to such subtilties. In the case of “Dauheny v. Cooper,” and other cases, it was decided that all the King’s subjects had a right to be present in an open court, so that there was room, and they conducted themselves with decorum; but those cases did not bear upon the present question, which was, whether magistrates had the power to decide who should appear before them as advocates; and the Court being of opinion that the magistrates had that power, the assault, in excluding the plaintiff from the police-office, was justified.—Judgment for the defendants.
[This is a most extraordinary and important decision, of which we shall say more at convenient opportunity. Lord Tenterden is fearful that magistrates will be embarrassed by legal subtilties. He has no such fear for common jurors, who are, we must thence suppose, wiser than magistrates.—Examiner.]
Section 2. Litiscontestational Class—one only.
The following copies of documents relating to the admission of professional lawyers in the United States’ Judicatories were furnished to Mr Bentham by Mr Neal:
“District of Maryland, to wit,—
“At a District Court of the United States, in and for the district of Maryland, begun and held at the city of Baltimore, on the first Tuesday of March, in the year of our Lord, one thousand eight hundred and twenty.—Present,
“The Honourable Theodorick Bland,
“Elias Glenn, Esquire, Attorney.
“Paul Bentalon, Esquire, Marshal.
“Philip Moore, Clerk.
“Among other, were the following proceedings, to wit,—Be it remembered that, on the eleventh day of March, in the year aforesaid, John Neal, Esquire, on motion of Elias Glenn, Esquire, was admitted an Attorney* of this Court, and took and subscribed the oaths prescribed by law.
“In testimony that the foregoing is a true copy, taken from the Record and proceedings of the District Court aforesaid, I hereunto subscribe my name and affix the seal of the said District Court, this tenth day of November, in the year of our Lord, one thousand eight hundred and twenty-three.
“Philip Moore, Clk.
“District of Maryland, to wit,—
“At a Circuit Court of the United States for the fourth circuit, in and for the district of Maryland, begun and held at the city of Baltimore, on the first day of May, in the year of our Lord, one thousand eight hundred and twenty-two.
“Present,—The Honourable Gabriel Duvall, one of the Associate Justices of the Supreme Court of the United States.
“Theodorick Bland, Judge of the District of Maryland.
“Elias Glenn, Esquire, Attorney.
“Paul Bentalon, Esquire, Marshal.
“Philip Moore, Clerk.
“Among other, were the following proceedings, to wit,—Be it remembered that, at the above term, John Neal, Esquire, was admitted an Attorney* of this Court, and took and subscribed the several oaths prescribed by law. In testimony that the foregoing is a true copy, taken from the Record and proceedings of the Circuit Court aforesaid, I hereunto set my hand and affix the seal of the said Circuit Court, this tenth day of November, in the year of our Lord, one thousand eight hundred and twenty-three.
“Philip Moore, Clk.
Section 4. Locable who.
“I, Elias B. Caldwell, clerk of the Supreme Court of the United States, do hereby certify, That, on the twenty-seventh day of February, one thousand eight hundred and twenty-three, John Neal, Esquire, was duly admitted an Attorney and Counsellor of the Supreme Court of the United States.
“In testimony whereof, I have hereunto set my hand, and affixed the seal of the said Supreme Court, this fourteenth day of November, in the year of our Lord, one thousand eight hundred and twenty-three.
“Baltimore County, to wit,—
“At a County Court of the sixth Judicial District of the State of Maryland, begun and held at the Court-house in the city of Baltimore, in and for the county aforesaid, on the third Monday of September, (being the twentieth day of the same month,) in the year of our Lord, one thousand eight hundred and nineteen.
“Among other, were the following proceedings, to wit,—Be it remembered that, at the above term, to wit, on this fifth day of January, in the year of our Lord, one thousand eight hundred and twenty, on application of John Neal, Esquire, to be admitted as an Attorney of this court, John Purviance and George Winchester, Esquires, are appointed to examine the said John Neal, and report to said court whether he is qualified or not, who thereupon report to the court here that, in pursuance of the said appointment, they have examined the said John Neal, and find him qualified to be admitted as an Attorney of this court; and thereupon the said John Neal is admitted an Attorney of this court, and took and subscribed to the several oaths prescribed by law.
“In testimony that the foregoing is a true copy from the Record and proceedings of Baltimore County Court, I have hereto subscribed my name, and affixed the seal of said Court, this tenth day of November, eighteen hundred and twenty-three.
“Wm. Gibson, Clk.
Section 6. Remuneration.
Main Cause of the Mischievousness of Libel Law, the Factitious Expense.
From the Examiner of the 29th July, 1827.
“It is much to the credit of the Government, that for some years past there has scarcely been a single prosecution by the Attorney-General for libel; and it is equally to the credit of the press, that the liberal and manly policy of the Ministry has been fully appreciated; and that, in a crisis where the Government is exposed to the attacks of a formidable faction, nearly every respectable print in the kingdom has come forward zealously to its support. But, though public prosecutions have been rare, there was scarcely ever a time when private prosecutions were so abundant, or of such an impudent character. The list of these prosecutions for the last twelve months would be startling, and the characters of those by whom they were commenced would be yet more so. Convicted felons have brought actions, because their forgeries and bigamies were exposed to that public whom they had opportunities of corrupting; oppressive magistrates, because their acts of injustice have been recorded; kept mistresses, because their licentious courses were denounced; unnatural relatives, because their unheard-of cruelties have been mentioned; stupid architects, because their ridiculous erections were criticised; habitual libellers, because they were repaid in their own coin; falsifiers of petitions, because their fraudulent practices were made known; men guilty of bribery and corruption at elections, because they were truly charged with it; shameless adulteresses, because legal documents attesting their guilt were published; foolish barristers, because their ridiculous conduct was correctly reported. And the proprietors of newspapers have been prosecuted, not merely for the publication of the just charges against these individuals on their own authority, but for accurately reporting the proceedings at police-offices and in courts of justice,—for inserting advertisements with the real signatures of persons ready to support or to answer for their allegations,—for publishing affidavits filed in a court of equity,—for copying—barely copying—from other papers published hundreds of miles off, the details of offences, concerning which the individuals prosecuted were equally uninformed and uninterested. To complete the character of these proceedings, the actions have, in several cases, been brought by attorneys, who have urged the parties to prosecute, with no other view than making a good job of the transaction.
“People often talk bitterly of the licentiousness of the press, and we are far from saying that there are not mean, malignant, unprincipled calumniators, reckless alike of private character and of the public benefit; but we beg that those who condemn the press generally, would look at the heavy penalties which hang over the head of every publisher, and observe how the most honourable, disinterested, and prudent men, are rendered liable to expensive, if not ruinous prosecutions, from persons the most profligate. The law of libel, as laid down by the Judges, is such, that we venture to say there is not any number of any journal in Great Britain, though published with the most exemplary care, and with the utter absence of every motive to defame, which might not render the publisher liable to prosecution. Nor does a publisher escape by a verdict in his favour: a verdict of one farthing against him, though really intended as an acquittal, leaves him (except in very extraordinary cases where the Judge refuses to certify) charged with the costs of both parties. Even a verdict for the defendant, in a criminal prosecution for libel, leaves him to pay his own costs, which will seldom fall below £150 or £200. Now the instances have of late been extremely numerous, of publishers, utterly free from any motive for detraction, being thus saddled with enormous expenses, by persons deserving only of infamy and contempt. In one instance within our knowledge, a journal was broken up by such a transaction, though the publisher had merely copied from a distant paper the account of an act of horrid cruelty.
“In these cases, and standing as the law at present does, the Jury are responsible for the protection of publishers against unjust attacks. It is the duty imposed upon every juryman by his oath, to acquit a defendant, if there is no reason to believe that he has been actuated by malicious motives; for all indictments for libel, charge malice as the essence of the crime, and it is obvious to common sense that without this there is no guilt. Juries, however, have too often been found to give verdicts against the press, where this essential feature of guilt was wanting; and we believe they have-done it in ignorance of the consequences which their verdicts involve. They are too apt to be influenced by the opinions of Judges, who almost invariably decide against the press. The Judges are themselves influenced by previous decisions; by the absurd legal fiction, that malice is necessarily to be inferred in every accusation or reflection; in some cases, by political subserviency, and in others, by that jealous and sensitive spirit which leads men in authority to extend as far as possible the range of their power, and to dislike whatever operates as a check upon their actions. Juries, however, have not unfrequently shown a proper sense of the dignity and duties of their office, and have returned verdicts for the Defendants where they could discover no evidence of malice or falsehood. No less than five actions have been tried during the last week, in two of which verdicts were given for the defendants, and in the other three damages of one farthing each. We hope that these verdicts will check the spirit of persecution, and that they will be an example to future Juries, if the press should again be subjected to the attacks of public delinquents and mercenary attorneys. If the utility of a free press is recognised,—and no one in this country ventures openly to deny it,—printers and publishers must be defended against wanton prosecutions. We do not plead for malice or faction, but we do claim protection for every editor in the honourable and upright discharge of his duties, even though he fall into unintentional error, or denounce those whose actions make them a public nuisance.—Leeds Mercury.
“Under the present law of libel, as laid down by our Judges, no newspaper proprietor, no bookseller, or writer of any description, is safe. Libel has been defined by the late Lord Ellenborough to be ‘anything which hurts the feelings or the reputation of any individual.’ We defy the meekest and the wisest man upon earth to write upon any disputed point without hurting the feelings of some person. True, indeed, the public press of this country assumes a considerable licence in speaking of public men and public measures; but be it remembered that this is done in defiance, and not with the sanction of the law. Upon public opinion, the press relies for protection from the consequences of its temerity; but too often is public opinion found to be a broken reed. The public cannot be made too generally aware, that when the measures of government are canvassed by political journals, those publications are indebted for their impunity to the forbearance of that Government whose acts they presume to question.—Belfast Northern Whig.
“If when actions for libel are brought against the press by pettifogging attorneys or briefless barristers, whose characters Juries estimate at the value of a farthing or a shilling, it would be well, before Juries gave such people verdicts for even one farthing, to inquire what the cost to a newspaper would be. They ought to ask such question in court, before they deliver their verdict; because it would then become a question for a Jury to consider whether the better plan would not be to find a verdict in favour of the newspaper, so as to throw the costs upon those whose trade it is to bring actions against newspapers for the sake of the costs. When law was comparatively cheap, it was well enough, when a man’s character had suffered damage, to the value of a farthing or a shilling, to find a verdict in favour of the plaintiff, thus saddling the newspapers with the costs on both sides, for probably at that time a newspaper could escape with the loss of £40 or £50; but now, when law is shamefully dear in all its branches, it is quite another thing for Juries to give verdicts against newspapers, for a verdict of one farthing carries costs to the amount of nearly £300. The law with respect to libel is severe enough; Juries need not add to its severity by giving costs to the tribe that we have named. If Juries do not in all fair instances, protect newspapers, the freedom of the press will be a mere name, and the public will find, to its cost, that itself, as Jurymen, had let in plunderers to plunder with impunity.”—Morning Herald.
The following information respecting the remuneration of professional lawyers in the United States, was furnished by Mr Neal, in March, 1827, who was then in England:—
“I am strongly inclined to believe that, upon the average throughout the United States, it does not cost more than five dollars (22s. 6d.) to make any conveyance—taking one conveyance with another.
“In the middle States, the business of conveyancing is carried on by mere scriveners and justices of the peace without any knowledge of the law; and their regular charge for conveyance or mortgage is from three to five dollars, (13s. 6d. to 22s. 6d.)
“The average length of a bill of bargain and sale, of lease and release, a lease, or a mortgage, I dare say, does not exceed what may conveniently be written upon two pages of the ‘conveyancy paper,’ which is about twice the size of this.*
“Parchment is seldom or never used.
“It is common for leases to be made by a slight memorandum,—a few lines only.
“In the whole United States, there are not probably five conveyancers by profession. I do not know one. And, generally speaking, lawyers are not even employed to look into titles; not once, perhaps, in five hundred cases of sale or transfer.
“In very complicated marriage settlements lawyers are employed, who give the heads to a clerk, and the papers are drawn up with a brevity which is without example here,—I should say that for the same purposes in America, not more than a tenth part as many words would be used, as are used here, (N.B. I speak of legal writings.)”
Collectanea relating to Ch. xxv. Local Headmen, and Ch. xxvi. Local Registrars.
From the Morning Chronicle, 15th April, 1830.
“In the Appendix to a work just published, by Lieut. Colonel Briggs, of the Madras Army, on ‘the present Land Tax in India, considered as a measure of Finance,’ there is an extract from a law promulgated on the 14th March, 1814, for the village Municipalities of Wirtemberg, which might be of great advantage to those of our Legislators who really wish to introduce something like purity into our parochial administrations:—
‘Every village and town forms a Commune.
. . . . . . . .
Every individual and every description of property within the limits of the township is amenable to its laws, unless especially exempted.
. . . . . . . .
‘The affairs of the township shall be intrusted to a Common Council, which shall consist of not less than seven, and not more than twenty-one members.
‘The members of the Council shall be elected by the Commune, according to a majority of votes. [Every adult male enjoying civil rights is entitled to vote. The vote is given in writing, and put into a box, which is opened in public, and the successful candidates are announced.]
‘The Council represents the interests of the village in its relations with the Government; its duty is to protect the people from external encroachments, and from internal disorder.
‘Every village or town elects its Mayor, or Chief, who is ex officio Chairman of the Council.
. . . . . . . .
‘The Mayor receives a salary from the village which is paid out of the common fund.
‘The duties of the Mayor are to maintain public order and security; to superintend the police, both for the security of the community and for the benefit of the Government; to execute the laws; to assist and expedite the poor and helpless; to give information and assistance to strangers; to prevent all acts of injustice and oppression; to superintend and act for the welfare of the village; to direct the management of its affairs in concert with the Council, and to prevent abuses. [The same duties, the same office, and the same mode of election, are common throughout most parts of Germany.]
. . . . . . . .
‘The Council shall elect a Public Record Keeper, whose office lasts for life; he, like the Mayor, shall be paid out of the common fund.
‘The Council shall have the management of the funds of the Corporation, and elect a Treasurer from amongst its Members, who shall superintend and examine the accounts.
‘The Council shall decide on the best mode of managing the public funds, and shall judge of the necessity of all charges in the most frugal manner; or the employment of the surplus funds; and in case of deficit, on the mode of raising means to defray the expenses.
. . . . . . . .
‘The Mayor shall form the annual Budget of the Commune, and submit it first to the Council, subsequently to the Committee, and eventually to the Government.
. . . . . . . .
‘Every year the public accounts shall be closed, and read by the Registrar, in the absence of the Treasurer, to the assembled Commune, and shall be left in possession of the Council for eight days. They shall then be submitted to the Village Committee, with the necessary vouchers, which is bound to return them to the Council within one month, with any remarks it may think necessary.
. . . . . . . .
‘The Commune takes no immediate concern in the public affairs, nor can it assemble without being summoned by the Mayor; but it has a right to elect a permanent Committee to control the acts of the Council.
‘The Committee consists of the same number of members as the Council; it is elected for two years.
. . . . . . . .
‘The Council is obliged to obtain the consent of the Committee of Control in the following cases:—
‘1. In the formation of the Budget and the Assessment.
‘2. In the defraying of any Expenses.
‘3. On the occasion of forming all Contracts on account of the village, which are not put up to public auction; especially should the contract be to be made with a Member of the Council.
‘4. On remunerating the Members of the Council for extra services.
‘5. On remitting balances due to the village.
‘6. In all charges whatsoever of the public disbursements on the public funds.
‘When the Council and Committee of Control cannot agree on any matter, no charge shall take place.
‘The Committee, on examining the Budget, shall be competent to annex any remarks it may have to make on the general state of the community and its concerns.’
. . . . . . . .
“How superior the organization of these communities to anything we have in this country. Here everything is anarchy or irresponsibility. By this scheme, the people are deprived of what they never can discharge with advantage—the power of deliberation on the parochial affairs; while they have full scope in electing those who have to execute and deliberate. Care, again, is taken, by the appointment of a Committee, that the Council or Parliament of the Communes shall not exceed its powers. In our parishes there is neither Executive nor Council. One of the Churchwardens is always a creation of the Parson, and hostile to the parishioners; and the Overseers hurry through their task the best way they can. All the functions assigned to the Mayor of the Commune in Wirtemberg are in England assigned to no one. If a Churchwarden or Overseer have a relation an attorney, the parish funds are liberally expended in prosecutions and litigation in general. But in general, individuals are left to protect themselves as they best can.”
Collectanea relating to Ch. xxxi. Government, Simple or Federative.
Suggestions by Mr Neal.
“1. It is an idea of Mr Bentham’s, that the regiments, and even the companies which compose the Federal Army, should be made up of men from each of the States.
“2. If troops are to be encamped together, or if they have not much to do at any time, they should be mixed up as much as possible.
“3. But if they are in the field, with an enemy before them, they cannot be too little mixed.
“4. That very rivalry which is bad in a time of leisure, would be good if a battle was at hand.
“5. The U. S. A. have had some proof. All the disaffection that occurred in the Revolutionary War, grew out of the separation of the troops, the regiments of this State from the regiments of that State, the men of the south from the men of the north. Still, however, when they came to fight a common enemy, they fought the better for being separated: and when they were joined as a body to attack the British on one side, while the French, as a body, attacked the British on another side, (as at York Town, where Cornwallis surrendered,) they behaved all the better for being each for itself.
“6. It is common to distribute mutinous troops; and we know that the esprit de corps is quite as strong as any other spirit, after a time.
“7. It should be an object with the Federal Government to get possession of certain posts, and to garrison them, in each of the State Governments.
“8. The jealousy of the latter may interfere with such a plan for a time, under a dread of consolidation, but when they see that the federal head is rendered so much the stronger, at so much less expense, by having the command of such and such rivers and highways, they will be likely to yield.
“9. We have found it so in U. S. A.”
“1. Under the old articles of confederation, the Anglo-United States had no power to raise money as a federal body. What they received was by a sort of irregular contribution. Each State gave what it pleased, and no more, and almost every one tried to pay as little as possible, even after the quota of each was fixed by the General Congress.
“2. Much of this evil might have been avoided, if all the States had known what each paid.
“3. But for want of publicity, certain of the States were thought to be defaulters when they were not, and others were supposed to be defaulters to a larger amount than they were.
“4. The consequence was, that each State endeavoured to pay as little as it could.
“5. There was no reputation to be had by doing more than its duty—no disgrace to be apprehended from doing less.
“6. If a tax be levied by the General Government—perhaps it may be well to offer to every State its quota at a discount.
“7. People in America are much in the habit of considering such discount as a profit, or, at any rate, as an abatement for prompt pay.
“8. By the Registration System of Mr Bentham, added to the publicity which he provides for, the difficulty of obtaining a true knowledge of the wealth and population of a country would be materially lessened.
“9. So much so, that ten yearly tables might be furnished to the heads of department, perhaps at less expense than one table such as they are now furnished with (in U. S. A.) every ten years.
“10. The population would be shown every year.
“11. And if, as all contracts are to be registered, the parties could be induced to state the value of the subject matter, the wealth of the country might be nearly estimated in the same way.
“12. But could they be so induced? It is believed they could. Men pay larger taxes than they ought, merely that they may be thought richer than they are. Most men desire to be thought richer than they are.
“13. And they find the political importance of their State to be in proportion to its wealth: whatever else they may do, they will not be likely to underrate the value of their own property.
“14. To counteract the tendency to exaggerate, there will be the counterpoise of taxation.”
[* ]Essay on the Influence of Time and Place in matters of Legislation. 1782. Part i. of this Collection, p. 185.
[† ]In 1830, after the Three Days’ Revolution, Mr Bentham addressed a letter to his French fellow-citizens on the same subject, vol. iv. p. 411 et seq., and the question of a second legislative chamber is also discussed in the first Book of the present Code.
[* ]See Book ii. Ch. xii., Judiciary collectively, Sect. 20, Judges’ eventually emendative function.
[† ]Several pages of Ch. xii. in the second Book, were written by Mr Bentham on the 9th, 10th, and 11th May, 1832; but a few days before he died.
[* ]Most readers will be aware that the desiderata here alluded to, have been to some extent supplied; and that the attention of legislators and the public has of late been so earnestly attracted to the subject, that in a short time nearly all the writer’s anticipations seem likely to be fulfilled. In 1840, a select committee made an elaborate inquiry as to the health of towns, with a view to discover how far improvements might be accomplished by means of sanatory regulations. A bill was lately introduced to remedy many of the acknowledged defects, and though withdrawn on account of imperfections in its construction, will probably be soon resumed. Many incidental inquiries have been made by the poor law commissioners,—in the view that whatever propagates disease is connected with the incidence of the poor tax: and they are now occupied in preparing a still more elaborate report on the subject, to be extended to Scotland,—November, 1841.—Ed.
[* ]Note by Mr Neal.—No higher title is known at law, in the United States; all the business is done by advocates, with the title of Attorney: except in the Supreme (Federal) Court of the U. S., where a member is admitted as Attorney and Counsellor.
[* ]Viz.: an ordinary sheet of writing paper.