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Subject Area: Political Theory
Subject Area: Law

On Brougham’s Law Reform. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 10 (Memoirs Part I and Correspondence) [1843]

Edition used:

The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 10.

Part of: The Works of Jeremy Bentham, 11 vols.

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On Brougham’s Law Reform.

“February 9, 1828.

“Mr Brougham’s mountain is delivered, and behold!—the mouse. The wisdom of the reformer could not overcome the craft of the lawyer. Mr Brougham, after all, is not the man to set up a simple, natural, and rational administration of justice against the entanglements and technicalities of our English law proceedings.

“When quarrels take place, one course is obvious, as a step to the right understanding of the matter, and the prompt settlement of it. That course is hated and opposed by lawyers. It is to bring the parties into the presence of the judge. This is and was the one thing needful. Let the plaintiff make out his prima facie case to the judge. If the judge see fit to entertain the suit, let the defendant meet them face to face. So would the interests of truth be served—but not the interests of lawyers.

“The demand—the defence—the evidence—would thus be presented in the simplest and most intelligible form, and, in most cases, the suit be speedily terminated. The costly machinery with which Justice encumbers her go-cart would be got rid of. In complicated questions, that is, in exceptions to the general rule, professional men might be introduced as assistants or substitutes. Wilful falsehood must be punished as now, or lies will undoubtedly abound. Those who have read Mr Bentham’s Rationale of Evidence, know what he means by a Mendacity License. The man who is sheltered from the punishment of falsehood, has obtained a mendacity license. The system of special pleading is the pregnant, the prolific mother of lies. That is truly a mendacity license,—a reward and an encouragement to falsehood. All lies are bad,—judicial lies are the worst of all. Are they not, Mr Peel? Are they not, Mr Brougham? Those who like lies and lying, whether for the purposes of selfish interest, or those of private and public injustice, let them cling to special pleading with the tenacity of the fondest affection. But if lies and injustice be objects of abhorrence, so will special pleading be. Mr Peel will laud it, and so will Mr Brougham. Special pleading cried up by both. Bavius and Mævius! Mr Peel and Mr Brougham! Those who laud the one, may laud the other. Boys of the same school,—heirs of the same inheritance,—preachers of the same faith! Shake them in a bag: look at them playing at push-pin together. Mr Peel will have no short pleas; so he establishes long ones. Mr Brougham will tear up this and that and t’other root of lies, with the special care to plant others just as noxious in their stead. Mr Brougham! instead of six hours, you may talk for sixty. The public will be enlightened at last. They will look upon you as the sham adversary, but real accomplice of Mr Peel, unless you can sacrifice (hard sacrifice, but how illustrious!) your interest and profit in this wholesale manufacture of lies,—of lies as mischievous as were ever devised by their great author and father. You know their paternity. ‘Is it not written in the Book?’

“But Mr Peel tells us, that the appearance of both parties before the judge is impossible, and so thinks Mr Brougham. Impossible? I have made a little discovery or so, if I could gently insinuate them. Imprimis, I have found out that an impossibility may be—indeed it may be—a fact. A French dramatist whispered it in mine ear. ‘Celà ne se peut pas,’ said a positive old gentleman. ‘Je ne sais pas,’ replied a modest doubter like me. ‘Je ne sais pas si celà se peut, mais je sais bien que celà est.’ A second, I have heard of a court—have not you, Mr Brougham?—called a Court of Conscience. Were you ever there, Mr Peel? for you might have made a third discovery, that in that court the parties do appear—ay, in their own persons—and plead, without a mendacity license, in the presence of the judge. And a fourth discovery might have flashed through your mind, that if a man would take the trouble to attend in a dispute about nine-and-thirty shillings, he might (might he not?) be persuaded to attend about one of nine-and-thirty thousand pounds: and this might have suggested a fifth, that if one man can be brought to attend in the cause of another man, he might—possibly he might, Mr Peel, if the experiment were made—be induced to attend when the cause was his own.

“Right honourable gentlemen! and learned gentlemen! you will deem all this very paradoxical and pretending. But note, I do not praise the constitution of the Courts of Conscience, I speak only of their practice. Learned gentlemen in their wisdom, and they are wise enough in their generation, have taken care to hide the good beneath a veil of evil, in order that the good might not ramify and recommend itself elsewhere. And with a sixth discovery, viz. that the constitution of a court is one thing:—the practice as to the admission and exclusion of evidence, is another—I depart.

“Misopseudo.”