The Online Library of Liberty

A project of Liberty Fund, Inc.

• Book I.
• Preface.
• Introduction.
• Chapter I.: General Division of the Aggregate Body of the Law.
• Chapter II.: Constitutional Law.
• Chapter III.: Civil Or Distributive Law. *
• Chapter IV.: Penal Law.
• Chapter V.: Procedure Law. †
• Chapter VI.: Financial Law.
• Chapter VII.: Prescriptions Or Bearings of the Other Codes Or Branches of Law, to the Constitutional Code.
• Chapter VIII.: Public-opinion Tribunal.
• Chapter IX.: Good Rule and Bad Rule.
• Chapter X.: Corruption.
• Chapter XI.: Delusion.
• Chapter XII.: Fiction.
• Chapter XIII.: Factitious Honour.
• Chapter XIV.: Established Religion—none.
• Chapter XV.: Supreme Constitutive.
• Chapter XVI.: Supreme Legislative.
• Chapter XVII.: Supreme Operative.
• Book II.
• Preface to the Original Edition of Book II.
• Chapter I.: Territory of This State, Name, Situation, Boundaries, Divisions.
• Chapter II.: Ends and Means.
• Chapter III.: Sovereignty, In Whom. *
• Chapter IV.: Authorities.
• Chapter V.: Constitutive Authority. *
• Chapter VI.: Legislature.
• Chapter VII.: Legislator’s Inaugural Declaration. *
• Chapter VIII.: Prime Minister.
• Chapter IX.: Ministers Collectively.
• Chapter X.: Defensive Force.
• Chapter XI.: Ministers Severally.
• Chapter XII.
• Chapter XIII.
• Chapter XV.
• Chapter XVI.: Quasi-jury.
• Chapter XVII.
• Chapter XVIII.
• Chapter XIX.: Government Advocate General.
• Chapter XX.: Eleemosynary Advocates.
• Chapter XXI.
• Chapter XXII.
• Chapter XXIII.
• Chapter XXIV.
• Chapter XXV.
• Chapter XXVI. *
• Chapter XXVII.
• Chapter XXVIII.
• Chapter XXIX.
• Chapter XXX.
• Chapter XXXI.
• Appendix.
• No. I.
• No. II.
• No. III.
• No. IV.
• No. V.
• No. VI.
• No. VII.
• No. VIII.

No. VI.

Collectanea relating to Ch. xxiii., Professional Lawyers.

I.

Section 1, Professional Lawyers, who.

From the Examiner, 1830.

“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.]

II.

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:

(Copy.)

“The United States of America.

“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,
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, 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.
Dist. C^t.”

(Copy.)

“The United States of America.

“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.
Circ^t. C^t.”

III.

Section 4. Locable who.

(Copy.)

“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.

(Copy.)

“State of Maryland.

“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.

Present,—

“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.
Balt. Co^y. C^t.”

IV.

Section 6. Remuneration.

Main Cause of the Mischievousness of Libel Law, the Factitious Expense.

From the Examiner of the 29th July, 1827.

“THE PRESS, THE LAW, AND THE PETTIFOGGERS.

“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.)”

[* ]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.