Front Page Titles (by Subject) TRACT, No. II.: Observations on Judge Advocate Hermosa's Panegyric on Judicial Delays; on the Occasion of the Impunity as yet given by him to the loyal Authors of the Cadiz Massacre, a counterpart to the Manchester Massacre; explaining, moreover, the Effe - The Works of Jeremy Bentham, vol. 8 (Chrestomathia, Essays on Logic and Grammar, Tracts on Poor Laws, Tracts on Spanish Affairs)
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TRACT, No. II.: Observations on Judge Advocate Hermosa’s Panegyric on Judicial Delays; on the Occasion of the Impunity as yet given by him to the loyal Authors of the Cadiz Massacre, a counterpart to the Manchester Massacre; explaining, moreover, the Effe - Jeremy Bentham, The Works of Jeremy Bentham, vol. 8 (Chrestomathia, Essays on Logic and Grammar, Tracts on Poor Laws, Tracts on Spanish Affairs) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). In 11 vols. Volume 8.
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TRACT, No. II.
Observations on Judge Advocate Hermosa’s Panegyric on Judicial Delays; on the Occasion of the Impunity as yet given by him to the loyal Authors of the Cadiz Massacre, a counterpart to the Manchester Massacre; explaining, moreover, the Effects of secrecy in judicature.
Complaints, I observe, have been made, of the delay experienced in the case of the Cadiz massacre. Of a paper, signed, according to the English translation, “Sanlucar de Barrameda, 20th August, 1820, the judge of instruction, Cormel Fiscal Gaspar Hermosa,” the professed object, is—to satisfy the Spanish people, that, from this delay, misconduct is not, in any shape, justly imputable to that judge. The business in question, is the business of the day. But, on the occasion of this business, I see principles avowed, the influence of which is of as lasting a nature as that of the system of law, of which they make a part, and from which they were imbibed.
“I remind the public,” (says this judge,) “I remind the public, that delay in judicial proceedings, is a tribute which is due to justice, and, as it were, the price at which the security of the citizen is purchased: that the judicial forms are”—(if, instead of are, he had said ought to be, his proposition would have stood rather clearer of dispute)—“that the judicial forms are—the shields of liberty, and precipitation the most dangerous rock in the way of justice.”
This defence of his excepted, from no individual fact do I see any reason for suspecting that the functionary in question is chargeable with misconduct in any shape: that, for example, he has any improper connexion with the parties accused, or any of them: any improper connexion either by complicity, unity of affection, fear of displeasure, bribery, or corruption in any other shape. Of the particular facts belonging to the individual case, all that is known to me is known to everybody: and they are, all of them, in his favour: namely, that, on this melancholy occasion, both actors and witnesses must have been, in a degree seldom if ever exemplified in the annals of judicature, numerous: and that, whatever be the occasion, the greater the number of the persons to be examined, the greater, cæteris paribus, must have been the quantity of time requisite to be occupied in the examination.
What, on the other hand, is but too true, is—that if, to a man in his situation, the above charges were, all of them, justly applicable, and accordingly applied,—this is the exact complexion of the sort of defence, that he would make. It is the sort of defence, which any man, in what degree soever guilty, would have it in his power to make, and which every man, who is guilty, would, if he saw any probability of its being received and productive of effect, be sure to make. It is the sort of defence, which I will not say no man, who is innocent, would ever make, (for innocence does not necessarily give right discernment, either to the person who pleads, or to those before whom he pleads,) but which an innocent man, if he has right discernment, would naturally avoid employing: and for this plain reason—because it is the interest, and necessary object, of the man who is innocent, to render his case as clearly distinguishable as possible from that of the man who is guilty.
Yes: when a man is really innocent, the course he takes will, naturally speaking, be exactly the reverse of the course thus taken. It will not consist of vague generalities such as the above: of aphorisms, without applications. No: but, as far as time and space will permit, he will hold up to view, in all their circumstances, the individual facts by which his innocence may be made manifest. In the present instance, for example, number of days of sitting, and hours in each day: number of persons that have been examined on the several days: number of persons that, as far as known, remained to be examined, &c. &c.
Instead of this, or anything like it, what does this judge? Addressing himself to the Spanish public, as a schoolmaster to his scholars, he recalls to their minds, in the form of maxims, certain lessons which, in his view of the matter, are in danger of not being sufficiently present to their memories. To each of these several maxims, I shall proceed to give a separate examination: namely to the end that it may be seen how far they are conducive, or repugnant, to the incontestably proper ends of judicature.
If, in my view of them, the evil tendency of the principles thus inculcated were confined to the screening of one individual, or a limited number of assignable individuals, from just censure, never would this pen have employed itself, in a task so ill-adapted to the situation of one who is a stranger to the country in which the facts had place. But, in my view of them, the tendency, though it were too much to say the object, is—to provide a screen for malpractice, in every shape, on the part of all Judges, to the prejudice of the subject many in all places, and at all times: a screen for all individuals in that situation, and, at the same time, for the system under which they act: a system which, in my view of it, has, all along, had misrule, in that shape, for its very object, as well as for its effect: a system, on the utter extirpation of which, in my view of it, the ultimate salvation of Spain, and of every country that has broke loose from the trammels of despotism, depends.
1. Maxim the First:—maxim as to delay. “Delay in judicial proceedings, is a tribute,” (says he,) “which is due to justice, and, as it were, the price at which the security of the citizen is purchased.”
That, to the operations, in the performance of which judicial procedure consists, as to operations of every other kind, time is necessary, is a truth, of which, if that was his meaning, it needed not a remark from a public functionary to remind us. But, by the mention of the word price, what is insinuated is this—namely, that whatsoever be the occasion, the greater the quantity of time is, that elapses before a definitive decision is known to have been pronounced, the greater the probability is, that the decision will be conformable to justice: for, generally speaking, the higher the price you are content to pay for your goods, the better the goods are that you will have. But if, in the case of delay, this were true, the surest way of pronouncing a right decision would be, never to pronounce any decision at all: for, in that case, the price paid would be the very highest price possible.
On the other hand may be seen a truth or two, of which our instructor himself seems to stand somewhat in need of being reminded: namely—that, though operations are performed in time, they are not performed by time; that the professing to be employing one’s self in the performance of an operation, and the being actually so employed, are not exactly the same thing; that, while delay increases, recollection weakens, and the very sources of evidence vanish; that delay in judicature is, so long as it lasts, denial of justice, and that a panegyric on delay is, therefore, a panegyric on denial of justice.
True it is that to the quantity of delay, that, by possibility, may be necessary to rectitude of decision, there is no certain limit. Why? Because there is no certain limit to the quantity of time that may be necessary to the collection of this or that piece of evidence. But mind the artifice. Under the sanction of the pretence formed by vague generalities such as these, what is true of no more than one cause out of a hundred, is applied to the hundred: a cause which might be despatched in twenty minutes—(and of this sort is by far the greater number of causes)—is made to occupy twenty years: and a cause, which, by the attendance of both parties, in the presence of a single judge, in an open judicatory, the bystanders, rendering the service that is pretended to be done, but never can be done by a judicatory of appeal, might be terminated without expense—is, for the sake of the profit upon the expense, nursed and kept alive; kept alive till the party, whose condition, in respect of pecuniary circumstances, is least favourable, is—if alive, alive in the pit of ruin, and his adversary more or less near to it.
Unfortunately for justice and for mankind, in regard to the use made of the word delay, an imperfection there is, under which, language seems, very generally, to labour. Two objects there are, for the designation of which there is but this one word, though, between the objects themselves, the distinction is not only clear and perfect, but, for the most important purposes, is continually requiring to be brought to view: namely, on the one hand, an addition stated as being made to an already allotted quantity of time; that statement not being accompanied with any consideration of the propriety of the so allotted quantity; on the other hand, an addition, the quantity of which is considered as being excessive. In this unfortunate ambiguity, the supporters of all systems of judicature contrary to the ends of justice, find a most useful instrument of defence. “Delay is, frequently, necessary to justice: namely, delay without excess: therefore, so” (say they) “is delay in excess; for delay in excess, is delay; and delay, you cannot deny, is necessary to justice.” Such is their argument; and such the logic of it.
On the present occasion, speaking as he does, of delay as a tribute due to justice, in which of these two senses would this professor of justice wish us to understand the term he thus employs? Delay without excess? the proposition is a nugatory one. What ought to be done, ought to be done: such is the instruction conveyed by it. Delay in excess? the proposition is an absurd and false one.
2. Maxim the Second. Precipitation is the most dangerous rock in the way of justice. Here, after another subject (of which presently) has been passed on to, up comes the same fallacy again in other words. Precipitation? What can be meant by it, but despatch, or promptitude in excess?
As to the maxim, setting aside the rhetoric of it, what is the plain import of it? That the quantity of time you employ—or at least profess to employ—in the operations of judicature, ought not to be insufficient: it ought not to be what it ought not to be.
Let it but mean anything—give it but a determinate meaning—the very reverse of it will be seen to be true. Numerous, indeed, are the modes of mal-practice to which the term precipitation might, without impropriety, be applied; speaking in general terms, in regard to any operation whatever, that, in the case in question, happens to be necessary to right decision, the omitting to employ the whole or any part of the quantity of time necessary to the performance of the operation, and thereby putting an exclusion upon the operation itself: in particular, putting, in this way, an exclusion upon such or such an evidentiary document; upon the attendance of such or such a witness; upon such or such a material question to such or such an attending witness; upon the answer, or any part of the answer, that would or might have been given by him to such or such a question; upon such or such a comment that would otherwise have been made upon his evidence. But the sense, in which, of all imaginable senses, it seems most likely to be understood, is—the omitting to employ more or less of the whole time that would have been necessary to a man, to form, by means of reflection, a right decision, on such grounds of decision as, in all shapes taken together, have been actually presented to his view: in a word, a deficiency in the time necessary for reflection.
Precipitation in judicature being thus understood, and admitted to be a rock, now let us see whether, of all imaginable rocks, this is really the most dangerous.
Look to English judicature. Adverse as, in so large a part of its extent, the system is—uncontrovertibly adverse—to the ends of justice—still, taken as a whole, it is, perhaps, the least so of any as yet anywhere established: strange indeed it would be, if it were not much less so than that of Spain. Of the two distinguishable branches of this system of procedure, namely, the natural and the technical, the only branch commonly in view is the technical branch: of this branch, the part most highly, most generally, and least undeservedly esteemed, is that in which the judicatory is composed of a professional judge, with a company of non-professional judges under the name of a jury: the jury, in the exercise of their functions, acting, in so far as it is their choice to do so, under the guidance of the judge. Now then, in this case, how stands the dangerousness? If, in the business of judicial procedure, the danger from precipitation were so great as supposed; in other words, if the mischief from it is so great and so frequent as supposed, here, it will be seen, we have a case in which it would display itself in its utmost possible magnitude. But how stands the fact? So small, if any, is the mischief, that in no one instance perhaps as yet, has it ever so much as attracted notice: in no one instance, at any rate, is complaint known to have been produced by it. Now then, note how the case stands: No sooner is the evidence with such comments, if any, as have been made on it by the parties or advocates on both sides closed, than, without so much as a moment’s delay taken for reflection comes, if at all, the opinion of the Judge: opinion or no opinion, immediately again, comes thereupon, as often as not, the decision of the jury. The promptitude thus displayed—is it in the power of precipitation, taken even in the bad sense, to exceed it? The same promptitude, again, has it ever, on the part of any person, been the subject of complaint? No, never. When promptitude, in this degree, has place, does it ever enter into any one’s mind, that any such condemnatory or disapprobative appellative as precipitation is, on that account, applicable to it? No, never. If promptitude, in such a degree, (and, in no higher degree can it have place,) is precipitation, precipitation, so far from being the most dangerous rock on which judicature can strike, might, with much more propriety, in the language of the same rhetoric, be spoken of as the harbour towards which it is to be wished that its course should be directed.
Never, surely, was aphorism more unfortunate! What is the evil to which, in the scale of evil, the highest place is assigned by it. The very evil which not only is, in every country, the least mischievous, but in the country, in which the warning is thus given, the least probable.
Delay, as above—delay, so long as it lasts—is injustice: for it is denial of justice: and, whether blame accompany it or not, the effect to the parties is the same.
In precipitation, unless misdecision be the result of it, there is no injustice: with it, there may be folly, but, from it, there is no injustice.
In regard to delay, thus it is as to its immediate effects, in both branches penal and non-penal taken together, and considered with reference to its effect in the particular cause in which it has place. In the penal branch, consider now its effects on the whole complexion and character of that branch. In so far as punishment has place, from delay in excess comes severity in excess: for by delay, and in proportion to the delay, the value, and effective influence of the punishment is diminished: diminished, by diminution of propinquity, and thence also of certainty. But, on the back of this evil, comes another evil. What is wanting in propinquity and certainty is then endeavoured to be made up for in magnitude: and thus we have severity in excess.
But, again, from severity in excess, and thence, as above, from delay in excess, comes inefficiency. For, as the punishment increases in magnitude, here again it loses in certainty. For the efficiency of the punishment depends, cateris paribus, upon the frequency of the known instances of its infliction, compared with that of the known or suspected instances of the delinquency which called for it. But infliction depends upon conviction, and conviction depends upon the co-operation of all operators necessary: necessary, in the several characters of informers, arrestators, witnesses, Judges, and functionaries acting under the command of Judge: and, in all these classes, to an extent proportioned to the degree of humanity that has place in the character of the age and country, those who would otherwise be co-operators, shrink from the task.* In Spain, of all countries, warn Judges against precipitation! Warn then the snail against running herself off her legs.
Rhetorician! if you must have a rock, keep to your rock then, but reverse the name of it. For precipitation say delay, and you will speak true. Delay not precipitation, will then be your name for your “most dangerous rock in the way of justice.” Thus, then, you have a rock, on which, in Spain, ever since Rome-bred law, with its system of procedure, has been ruling, Justice has been splitting: a rock on which, unless that chaos, with its rocks, be speedily annihilated, justice will, ere long, split to pieces, and the constitution along with it.
When the justice necessary to the keeping of society together cannot be had from judicature, it is looked for from despotism. Then does despotism itself, as being the minor evil, put on not only the colour, but even the character of good: as such, it is looked for, called for, exercised, and, not altogether without cause, even applauded. And this is among the causes why, in the eyes of the lovers of despotism, a system of procedure repugnant in the extreme to the only true ends of judicature, is an object of indifference, or even of complacency.
Those who will have rocks cannot object to harbours. When factitious delay, the artificial rock set up by the confederated ingenuity of official and professional artists, stands in the way of justice—despotism, calm unruffled despotism, is the harbour, in which, whatever security is regarded as obtainable, will be sought. To the artists themselves, the change would be no evil, were they the only harbour-masters. But when in the hands of lawyers, despotism fails, recourse is had to priests and soldiers.
3. Maxim the third. “The judicial forms are the shields of liberty.”
The judicial forms?—What judicial forms? What, is not said, but what is insinuated, and doubtless meant to be understood, is—that such are the judicial forms of the Spanish edition of the system of Rome-bred procedure:—the system, under which the preacher of wisdom, in this shape, was acting, and under which, by the help of these convenient and well-worn aphorisms, he is thus endeavouring to find shelter. Liberty, indeed! What liberty? whose liberty? What in his dictionary means liberty? What? unless it be liberty to rulers to oppress subjects, and to lawyers to plunder suitors? Liberty, indeed! Why thus keep hovering over our heads in the region of vague generalities, but that he finds his procedure unable to stand its ground on the terra firma of individual and appropriate facts?
Be this as it may, how stands the case in reality? These judicial forms, what are they? What, but the means employed by judges in their progress towards the ends or objects, to which the course of the proceeding is directed, whatsoever are these ends.
Now, under the Rome-bred system of procedure in general, and under the Spanish edition of it more particularly, what are the ends towards which the course pursued by those who framed it, has at all times been directed? by those who, from time to time, have been employed in the framing of it, not to speak of the course pursued by those who, from time to time, have been acting under it. I will tell him what are these ends: they are the ends diametrically opposite to the ends of justice: they are the ends pointed out by the personal and other private interests of those by whom this power has been exercised: ends standing in constant opposition to the interests of the rest of the community, but more particularly to the interests of the subject many, in respect of the ends of justice: they are the sinister ends, to the pursuit of which the ends of justice have, to a greater or less extent, been everywhere made, and still continue to be made, a continually repeated sacrifice.
Liberty, indeed! shields of liberty! under the Rome-bred procedure anywhere—under the Spanish edition of it more particularly—is it of liberty that the forms employed are the shield? O yes! if, instead of liberty, we may read despotism, oppression, depredation, and corruption: with this one amendment, the maxim may be subscribed to without any the smallest difficulty.
What are the ends—the proper—the only defensible ends of judicial procedure? Direct, all-comprehensive, and positive end—rectitude of decision: collateral and negative ends, reducing, to the least possible quantity, the evils unavoidably produced by the pursuit of the direct end; namely, the evils comprised under the three heads, of delay, vexation, and expense.
Such being the only proper ends, what, then, are the actual ends—the ends actually pursued by those, by whom, in this, as in every other instance, the system of judicial procedure has been framed? If they have been men, these ends have everywhere been their own personal ends: the advancement of their own particular interests. And what have been those particular interests? On every occasion on which, in each man’s view of it, his interest would be better served by misdecision,—misdecision accordingly: on all other occasions, rectitude of decision; this being pursued, according to the best of the man’s judgment, for reputation’s sake: for reputation’s sake, that so, by probity, practised where it might be practised without sacrifice, power might be increased: that power, (for reputation is power,) under favour of which, improbity, coupled with impunity, might be practised, as often as advantage presented itself, in any sufficiently tempting shape, as the fruit of it. Thus much as to what regards the direct end of justice: then, as to what regards the collateral ends, the swelling, to the utmost amount, the aggregate mass of delay, vexation, and expense: the expense for the sake of the lawyer’s profit extractable out of it: the delay, with its attendant vexation, for the sake of the opportunities which it affords for addition, to the amount of profit-yielding expense; of profit-yielding expense, in all cases; and of misdecision in every case, in which it presents itself as prescribed by personal interest in any shape, as above.
The founders of this same system, were they men? or, if not, what were they? If men, then so it is that, in the circumstances in which they acted, unchecked as they were, free as they were from all check, applied or applicable by the subject many, whose interests they were thus disposing of—such, in the framing of the system, could not but have been the ends that, from first to last, they had in view. For, on the constantly prevailing habit of self-preference, does the human species depend—depend, not merely for its happiness, but for its existence. No rule more important for the legislator’s guidance; no rule, on which, with stronger determination, his eyes, should, on every occasion, remain fixed; no rule, against which the eyes of men in general are more obstinately closed. Yes: self-preservation it is that is the necessary occupation, and, with the exception of maternal care, the only necessary occupation: Yes; on any extensive scale, social sympathy, and the conduct that flows from it, is an article of luxury—the luxury of the most highly polished life: the habitual enjoyment of it, the privileged endowment of here and there a superior and superiorly cultivated mind.
Delay, vexation, and expense,—these, in conjunction with misdecision, compose, in all its modifications, the aggregate mass of all the evils to which, taken by itself, the system of judicial procedure is liable to give birth. Add uncertainty, an evil, in the generation of which, the main body of the law, whether by its silence or by its language, shares and vies with the system of procedure: add these together, you have the aggregate mass of evil, of which is composed the patrimony of the fraternity of lawyers: of the man of law, in all his shapes: of lawyers, of all classes, and all ranks: of the attorney, of the advocate, of the judge, of his ministerial instruments: of these, and, above them all, of the patron, by whom the judge, in all his shapes, is appointed. Delay, vexation, and expense, as well in their natural and inevitable, as in their factitious, and purposely organized, forms: of evil in all these shapes, as well in that in which it is the purposed work of man, as that in which it is the work of that power, into the designs of which no human eye can penetrate. No: in no branch whatever, in no place, at no time whatever, can any system of government, that we see, or ever have seen established, have been directed to any other object than the particular good of those by whom it has been established: to the good of the subject many, no further than in as far as it appeared to the ruling few, that, by serving those beneath them, they were, in some shape or other, rendering service to themselves. From the eyes of the multitude, these truths, incontestable as they are, have almost universally been hidden: hidden by a covering of the thickest and most universally and indefatigably employed imposture. Yet, only in proportion as those same eyes are open to these same truths, can man be freed from the oppression, depredation, and debasement, under which, in every country, he still labours. In every country? yes: even in the Anglo-American United States. For, though not at all by despots, nor much by priests, even there is he deluded. Yes: deluded he there is; and in proportion to the delusion, preyed upon and oppressed by lawyers; by England-bred lawyers, whose iron-rod, having been in the night of servitude, is still in the days of independence suffered to be wire-drawn out of a system of sham law, and that of foreign growth—the English common law.
The good, whatever it be, that is derived from the judicial system, from whence, then, is it derived? From those things which are actually done? In a small degree, yes; but in a very small degree: in a much greater degree, from those things which, in the case in question it is how erroneously soever supposed, would, if the experiment were made, be done.
In the teeth of their own experience, deluded by those false conceptions, which, in books and speeches, the lawyer-tribe, with one accord, are so indefatigable in disseminating, it is among the expectations, for example, of Englishmen in general, that, for injury in any shape, law will afford them an adequate compensation. All the while, the fact, the incontested and incontestable fact is, that to a vast proportion, probably to more than nine-tenths of their number, the obtainment of any such compensation is, in every case, impossible. And, for the opposing a perpetual bar to any increase in the number of those to whom it shall be possible, leaders in both factions, corruptionists in possession, and corruptionists in expectancy, stood up but t’other day, stood up, in declared confederacy. Stood up, and where? Even in that House, the very name of which is so happily become a name of reproach in Europe.
Thus stands the matter in England; the country in which, till the birth of the Anglo-American United States, the plague of lawyers was least destructive. But, if thus in England, how in Spain can it fail to be still worse?
To return to our official preacher of delay, the no less learned than gallant advocate of Forms, in the great cause of Forms against Substance. The body of his sermon, is now, it is hoped, understood. Come we now to the practical inferences.
On my zeal, says he, “I exhort them” (the public) “to depend.” On his zeal, for what? Thus the explanation is at the same time given: his zeal to do what he is professing to do: “placing myself,” says he, “above the influence of the passions, and listening only to the voice of justice?” And this zeal—by what was it called into action? By those laws, of course, under which he was acting: by the laws he speaks of, as those “which regulate the order of proceeding,” those “inviolable laws” (so he terms them) “which,” he says, “are the only safeguard of liberty.”
Neither with the person of the gentleman in question have I any acquaintance, nor, in relation to the reputation he bears, have I received any the slightest intimation: in relation to him, all that I have any conception of is—the official situation he was occupying, and the principles of the system of law under which he was acting. Now, of that situation, indeed, my conception wants something of being determinate: but, of the system of law in question, my conception, is, so far as regards the present purpose, as determinate as I could desire it to be. This premised, it will, I hope, be sufficiently understood, that, in whatever I may find occasion to say of him, it is to the species only, and not to the individual, that it can have been intended to be applied. And so then, of this string of phrases is composed the ground, on which the gentleman expects us, our eyes shut all the while against the manifold matters of fact which the case furnishes us with, expects us to rest the unbounded confidence which, by the word depend, he calls upon us to repose: as if these words were not just as easy to write as an equal number of other words of the same length: as if acting were less common upon a bench than upon a stage: as if it were not just as easy for the most dishonest, as for the most honest man upon earth, to commit to paper, or to the air, phrases of this sort, in whatever quantity the purpose were thought to require: as if the most notoriously rapacious and sordid hypocrites this country knows, were not every day, not only pouring forth professions of virtue such as these, but confirming them with appeals to God, and ever-ready tears. In answer to this call, as one of the public, I will here take the liberty of stating to him my conception of the course which, under the invitation given him by those same “inviolable laws,” I “depend” upon his having pursued. For the gratification of those same “passions” to the influence of which, for no other reason than that he has been at the trouble of saying so, he desires us to believe him to be so effectually superior, he has been employing these facilities which, for that same purpose, under the cover of that veil of impenetrable secrecy, which they have so religiously thrown over all judicial proceedings, those same laws have, in their bounty and their wisdom, been so careful to place in his hands. Proceeding then, according to established order, (for everything is as nothing in comparison with established order,) he has begun with taking an account of all such delinquents, whose power of hurting him is such as to exempt them from the necessity of coming to market for his services: in favour of these, the power, the unlimited and irresponsible power of pardon, which, by the wisdom of those same laws, has, by its not being nominal, been rendered but the more effectually real—has been exercised gratis. Another class, which he may, or he may not, have taken the trouble of forming, has been composed of those, towards whom he has found, in the sentiment of sympathy—in any shape, public or private—a motive, of sufficient strength to engage his exercising the godlike attribute upon the same disinterested and magnanimous terms. These two unprofitable classes being deducted, remained the class composed of all such other persons, in whose instance, upon due inquiry, a capacity of showing gratitude, in the pecuniary, or any other more refined, though not less valuable shape, has been found: and, in these instances, he would have been wanting in what was due to both parties, if he had not taken the requisite measures for improving the capacity into act. Uniting in his person, (if my inference from his official title be not erroneous,) the military character to the judicial, he would have been an offender against the laws of gallantry, had he neglected the opportunity afforded him by those same “inviolable laws,” for applying beauty to its appropriate use. In civil cases, under the French edition of Rome-bred procedure, the goodness of a man’s title depended, nominally, upon contracts or conveyances, really upon the beauty of a wife, sister, or daughter, in the eyes of the most influential Judge. It was manifestly for this, amongst other reasons, (for there could not have been a better,) that, under that system, personal solicitation was not only permitted but exacted.
When using the word “depend,” I said—this is the sort of conduct that I should depend upon his having pursued, it was because, in the translation of the judicial document in question, depend was the word I saw before me. Here, lest I should be doing injustice as well to the gallant and learned gentleman as to myself, depend, it may be proper I should confess, would, in my view of the matter, be rather too strong a word for the case. Dependence on the part of the contemplating mind corresponds to certainty, on the part of the event contemplated: probability, though a greatly preponderant probability, is all that I see here. Such are the diversities in human character, that, when corrupt laws, the fruit of corruption, have done their utmost to lead men into temptation, this or that individual there will still be, in whose instance effectual resistance will have had place. But, utterly unacquainted as I am with everything belonging to the Gentleman in question, except his situation, and the system of law under which he has been acting, if I were obliged to lay a wager, I would lay at least twenty to one, not to say a hundred to one, that, with any such degree of inflexibility as that in which we have seen him professing resistance, he has not resisted.
To make anything like a complete statement of the grounds of this above-mentioned persuasion, would require a volume: it would require a complete exposure of the system of those same “inviolable laws.” But, for the justification of such a persuasion, one single feature in that system is quite sufficient; and that is—the impenetrable darkness in which the whole procedure is enveloped. You have seen already the use and reason of this darkness. In Spain, a man must be more or less than man, if he does not put it to this use. For Spain, put Portugal, Italy, Germany: take any country where Rome-bred law reigns; the case will be little varied. Cases excepted too minute to be here worth mentioning, take this for an incontestible rule—Where there is no publicity, (I speak of judicatories,) there is no justice. Oppression, depredation, corruption—all that there is—everything rather than justice. Under Rome-bred law, in the pleadings of advocates, in here and there an instance perhaps, you will see publicity admitted. In pleadings, yes: but upon what ground? Upon no other ground than that which is formed by evidence, manufactured at pleasure under the veil of secrecy: the cause thus corrupted in its vitals, and in the judicatory, responsibility destroyed: destroyed—the thing itself, and thence the sense of it—by the multitude of the judges. From the stage, at which, by forming a sort of partial succedaneum, how inadequate soever, to an ungarbled public, the multiplicity of Judges might apply some restraint to corruption—from this stage it stands excluded: the stage at which it cannot be of any such use, that is the stage at which it is admitted. By the presence of almost any man, much more by the presence of one invested with equal authority, a Judge might, by the fear of divulgation, be deterred from any such palpable injustice, as the putting an ungrounded exclusion upon a witness, or suppressing or falsifying any part of his evidence. But when, after a decision already pronounced by one judicatory, a question comes in the way of appeal before another, and that other a many-seated one, nothing is there to hinder any one member of it from giving to his vote the direction, whatever it be, that corruption indicates. As to fear of divulgation, no place is there for any such thing. How should there be? there is nothing to divulge.
So far as concerns individuals all this being mere supposition, let us close with another supposition which, to every generous and feeling mind, will be a so much more acceptable one. The conduct of the functionary is now in perfect conformity with his professions: it is without spot. How irksome must it then not be to him, to be all along acting under a system, under which, while he is acting, he cannot, by any discerning mind, be regarded as otherwise than more or less corrupt!
A system, by which he is placed in so degrading a situation—how odious must it not be in his eyes? how anxious must he not be, to embrace with the utmost promptitude every the smallest chance for seeing substituted to this foul and technical system a pure and natural one? “Foul,” I have said, and “technical.” But, when applied to a system of judicial procedure, foul and technical will one day be universally understood to be synonymous terms: technical being said of it, foul will be put aside as superfluous.
As to the screen for corruption—the screen made out of the panegyric on delay and forms, I have seen it in use these five and fifty years: the name of the manufactory is visible on it. Esprit des loix the manufactory: Montesquieu and Co. the name of the firm: a more convenient or fashionable article was never made.
In Montesquieu, as in Blackstone, whosoever has misrule in any shape to attack or to defend, may find this and that and t’other thing, that, with more or less exactness of application may be seen or made to fit his purpose. If your wish is to put the business off, quote Montesquieu—you may put it off as long as you please: if your wish is that it shall come to nothing, there is Montesquieu who will do this for you likewise. In addition to increase of delay, vexation, and expense, the forms invented by the lawyer tribe have had everywhere for their object the enabling them to bring a suit to nothing whenever they are so disposed. What has been done is found to be unconformable to this or that same rule or form: to a rule or form already made, if there be an already made rule or form that is near enough to the purpose; if not, to a new form, which, on pretence of being found ready made, is made to suit the purpose. Behold here the key, to a part, perhaps the greatest part, of the absurdities, portentous as they are, which may be seen swarming in every system of procedure that was ever made. Made: to which must be added—or pretended to have been made, in so far as it is not exhibited in any other shape than that of common, alias unwritten, alias imaginary, alias sham and counterfeit law.
Montesquieu was a man of gallantry—a bel esprit—a fine gentleman, and a philosopher. But, before he was anything of all this, he was a lawyer: a lawyer, bred up in the corruptions of Rome-bred judicature: a French Judge with the rank of President, in one of those oppressive and predatory corporations called Parliaments; a name which, in all its senses, will one day be as universally a term of reproach as the Inquisition is already. With all his merits—and pre-eminent most unquestionably they were—it could not escape his sagacity, how intimate the connexion was between his rank in society, and the respect entertained for the abuses by which that rank was conferred.
A man, who has an abuse to defend, must for that purpose, were it only for decency’s sake, have a something with which he may be supposed satisfied. As to the something here in question, if our Colonel Fiscal was more of a Fiscal than of a Colonel, it is no more than he himself may naturally have provided himself with, and kept for use: if he was more of a Colonel than of a Fiscal, some other person who was a fiscal without being a colonel, put it perhaps into his hands. It will continue to be needed and to be used, so long as any particle, either of the nuisance called Roman common law, or of the nuisance called English common law, remains unextirpated.
The disorder has been seen: it admits but of one remedy. The disorder has for its cause a system of procedure, produced in a dark age by interests and designs, directed to ends opposite, in the degree that has been seen, to the ends of justice. The remedy, if it ever has any, will be constituted by a system of procedure, produced in an enlightened age by interests and designs, directed from the first towards those only legitimate ends, and, from first to last, pursuing the same undeviating course. The difference between a work directed to the one, and a work directed to the other of these opposite objects, will, in and by such a work, have been rendered visible to all eyes. In the hands in which the power of the country is—in these hands, will be then the choice.
[* ] In so far as regards severity of excess, its power in striking the law with impotence, stands in the eyes of all, and by the acknowledgment of all, exemplified in England, and more particularly at this time. Applied to forgery, the mere name of punishment,—the punishment of death,—has given increase to the number of forgeries.