Front Page Titles (by Subject) Bentham to Sir Samuel Romilly. On the Reform of the Judicatures in Scotland. - The Works of Jeremy Bentham, vol. 10 (Memoirs Part I and Correspondence)
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Bentham to Sir Samuel Romilly. On the Reform of the Judicatures in Scotland. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 10 (Memoirs Part I and Correspondence) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 10.
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Bentham to Sir Samuel Romilly.
“Q. S. P., 15th June, 1807.
Some time before the change in Administration, Dumont came to me to make a communication from Lord Henry Petty, mentioning his having heard that I was occupying myself about the Scotch Judicature Reform, and offering to introduce me to Lord Grenville, for the purpose of my communicating to him my ideas on that subject. Regarding the offer in no other light than that of a manifestation of Lord Henry’s kindness to myself, and not understanding that Lord Grenville himself had any part in it, I found the less difficulty in giving the answer, which I should have given at any rate—viz., after the acknowledgments which such a kindness called for, declining to avail myself of it. My reasons, which I made no secret of, were, that my own notions, which I was preparing to lay before the public, were too wide of the notions prevalent among lawyers in general, and of the notions on which the plan actually on the carpet seemed to have grounded itself in particular, to admit of its being at all probable, or even, in my own opinion, advisable, that Lord Grenville, then at the head of an Administration, should take them up on the suggestion of a non-Scotchman, a non-lawyer, to the rejection of a plan that had, of course, come into his hands, sanctioned by the authority of Scotch lawyers: And that, even supposing them to be ever fortunate enough to be honoured by his Lordship’s approbation, it could only be in the event of his finding them adopted and supported by a considerable body of public opinion, that his taking them up would ever answer any good public purpose; and that therefore, in my conception of the matter, any such interview would be but consuming the time of one or both of their Lordships to no use, adding, (to prevent misconstruction,) that the disposition in which those papers of mine (such of them as were already written) had been penned, was the reverse of that of personal hostility to the noble person to whom they were addressed, as the tenor of them would sufficiently show.
“Since that time, the Memorial of the Scotch Judges, with the plan of reform contained in it, has come out; and therein I find, (imagine with what surprise,) that which coincides, as far as it goes, with my own, in the most material points. My prepossessions were as far from being in favour of those learned personages, as those of Lord Grenville could have been; the style of their address to their constitutional superiors, and the use, or rather the abuse, they had attempted to make of the Act of Union, had made that sort of impression on my mind which they may naturally be supposed to have made on his Lordship’s.
“Before I had begun to give a distinct consideration to their plan, I had even begun, on the above and other grounds, an attack which, notwithstanding the approbation I find myself compelled to give to their plan itself, I propose to myself to go on with and publish for the edification of the lieges. But in all this, is there any reason for rejecting their plan, if it be the best that presents any substantial chance of being adopted? no; not if it had for its authors so many agents of Buonaparte.
“As to Lord Grenville, my humble conception of the matter is, that if the memorialists’ plan can be made appear to his view, not inferior to that which happened to be the first presented to him, he will not only do the country more good, but, in the eyes of the country, himself more honour, by taking up the plan that comes to him sanctioned by so many high and appropriate names, than by continuing his support to the anonymous one. For my own part, I consider the public (and so I mean to say) as being as completely indebted to him for the one, as for the other: for, sure enough, had it not been for the chance of getting rid of a plan in which the interests of their pride and their ease were not so well consulted, their learned Lordships would have been far enough from coming forward with this, or any other plan of their own, directed either in reality or in profession to the same ends.
“But now, as to the occasion of my giving you this trouble: Along with this you receive, at last, with the title page, the tables referred to in the four letters already printed,* as likewise in the subsequent ones; also a few copies, of which it remains for me to speak. Two of them for Lord H. Petty; whereof one, should such be his Lordship’s pleasure, to be, instead of the author, put into the hands of Lord Grenville.
“To complete so much of the undertaking as comprises the critique on the plan already before Parliament, and constitutes Part intituled Proposita,—and in comparison with which, the extent of the two other Parts,† taken together, will be but inconsiderable, requires two more letters, (Letters V. and VI.) both of them already written—(Letter V., in all parts twice over, and in some three or four times,) but not as yet quite ready for the press; some speculative matter of wide extent, of no immediate, nor absolutely necessary application to the particular measure in hand, not being, as yet, quite adjusted to my mind. What immediately concerns the Bill is, however, in such a state, that if, from anything that is already printed, Lord G. and Lord H. saw any possibility of their being reconciled to the giving up the Chamber of Review, and taking up the Succedanea of the memorializing Judges instead of it,—I should, upon receiving an intimation to that effect, be very ready to submit to their Lordships, at a short warning, my ideas on that part of the subject in a concise form: for example, by getting a transcript made of the marginal contents, which I almost always draw up before I send anything to the press.
“Scotch Judicature Reform.—Heads of a proposed plan, supposed to be good pro tanto; and, at the same time, in respect of what it offers towards reconciling the notions and wishes of contending authorities, not impracticable.
“1. Single-seated Judicature: a point already battled for in the J. B.’s already printed letters, and for which eleven of the fifteen judges have already offered eight of their number, with the seven others, to form a succedancum to the Chamber of Review,—the Faculty of Advocates opposing it might and main, but finding less than nothing to say against it.
“2. Addition by J. B.—Obligation on each of their learned lordships to have an opinion of his own, as our Chancellor and Master of the Rolls have, without the liberty of shuffling off a cause to the Inner-House undecided: item, the abomination of receiving representations interdicted, as it is already in several cases, and as the Faculty (happily) propose it shall be in all cases.
“Appeal not to stop the execution of [the decree], an arrangement which, after proposing and supporting, might and main, (under such provisions as seemed requisite for prevention of irreparable damage,) J. B. has the satisfaction of seeing proposed by the memorializing Judges, though without any reasons, or any such precautionary provisions, not objected to by the Faculty, notwithstanding their eagerness to object to everything from Mr Bentham.
“The mala fide litigant who has no expectations of an ultimate decision in his favour, unless it be by exhausting the purse or patience of the adversary, may and will be prevented from making delays, by matters being so ordered that no advantage shall be to be got by making of them. The bona fide litigant who looks for an ultimate decision in his favour, cannot be prevented from making the delay necessary to his obtaining it, unless it be by expense and vexatious restraints operating with equal force on injurers and injured.
“3. Interest to be allowed on the subject in dispute proposed by the memorialists thus simply: advocated by J. B. to a greater extent, and in a shape of greater efficacy. Faculty again consenting by their silence.
“These (together with extra evils to which J. B. objects) are relied on by the memorialists as arrangements of such efficacy, that the number of appeals would soon ‘cease to be a grievance to the subject, or a burden to the House of Lords.’ In J. B.’s view they would put an end to the mala fide appeals: viz., those which come to be withdrawn or dismissed; but in so doing would take nothing from the burden; i. e., from the amount of those draughts for time under which the House has so long been bankrupt. In J. B.’s view, it is impossible the House ever should be rendered solvent, by any other means than the erection of what he calls a Court of Lords Delegates; to exercise over all three kingdoms as much of the power of the House in respect of Judicial superintendence as at present, (if rather more vigorously, still better,) with as much of the habitual will of the House as the nature of things admits.
“In a separate paper on the leading points,—in the details of my letters, there are a number of things which, whatsoever might be the private opinion of either of their Lordships, they could not in public, with any decency, declare their approbation of. My papers will be public, at all events. The Review Chambers I have little apprehension of seeing carried; but, for the honour of Lord G.’s Administration, my wish is, to see it given up by himself; and that something that will bear examination should have his stamp upon it. Of my publication, the effect, if it had any, would be to cover the proposed Scotch Chamber of Review, with at least a part of that infamy which is made to fall with a full torrent upon the English ones. It is not without the sincerest concern that I should see the smallest drop of it falling upon either of the two noble heads so often mentioned.
“Jury Trial they can scarcely expect to carry against the whole force of Administration, headed by the Chancellor and Lord Melville. But it does appear to me, that by picking out what there is that is good in the plan of the Scottish Bench and Bar together, as in the annexed paper, a plan might be formed, that should be at once so good, so popular, and so well supported by appropriate authority, that the existing administration would scarce venture to oppose it.
“On the meeting of Parliament, I know not how soon one side or the other may revive the subject in the House of Lords; and this consideration it is that has given you the trouble of the present letter.
“What in their situations it would not, in my view of the matter, be either pleasant or decent for a man to approve, even you will not see till the public sees it; as to everything else, I have no reservers.
“These letters I do not purpose to publish, till Letters V. and VI. are printed. This I have no apprehension of their not being before any measure can have passed the Commons. But if it be the destiny of the Chamber of Review not to stand, how much better it would be that it should be withdrawn by Lord G. himself, than thrown out either in the Commons or the Lords.—I am, dear Romilly, ever yours.
“P. S. At the conclusion of the annexed Heads, &c.
“From the complexion of the plan, it being at bottom so well adapted to increase the evils it professed to remove, J. B. had ventured to predict a favourable reception from the class interested in that increase. How fully the prediction has been verified may be seen in the ardent and indiscriminate applause bestowed upon it by the Faculty of Advocates.
“Note, (for your private eye,) to appeal not to stop execution in the annexed Heads of a Plan.
“This bar to mala fide appeals, (say the Debates,) Lord G., after having set up, took down again. The reason, if offered to be communicated, I should shut my ears against; true or false in the individual instance, my hypothesis will be equally subservient to the ends of justice.”
In the following, Bentham describes his residence at Barrow Green:—
[* ] See the commencement of vol. v. of the Works.
[† ] The work was not completed to the extent of these anticipations, see vol. v. p. 16.