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15.: BLESSINGS OF EQUAL JUSTICE MORNING CHRONICLE, 20 AUG., 1823, P. 2 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXII - Newspaper Writings December 1822 - July 1831 Part I [1822]

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The Collected Works of John Stuart Mill, Volume XXII - Newspaper Writings December 1822 - July 1831 Part I, ed. Ann P. Robson and John M. Robson, Introduction by Ann P. Robson and John M. Robson (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1986).

Part of: Collected Works of John Stuart Mill, in 33 vols.

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15.

BLESSINGS OF EQUAL JUSTICE

MORNING CHRONICLE, 20 AUG., 1823, P. 2

This letter was prompted by the reports (Morning Chronicle, 15 Aug., 1823, p. 4; “Police; Queen Square,” The Times, 11 and 15 Aug., 1823, both p. 3; “Police: Queen-Square,” Examiner, 17 Aug., 1823, p. 543) of the handling by Mr. White, the magistrate, of a complaint on 10 Aug. by Mrs. Lang (alias Miss Drummond), a servant of Lady Caroline Lamb (1785-1828), that had been rebutted by her husband, William Lamb (1779-1848), later Lord Melbourne. The letter, headed as title and subheaded “To the Editor of the Morning Chronicle,” is described in Mill’s bibliography as “A letter on publicity in judicature, and its infraction by a Queen Square magistrate, in the Chronicle of 20 August 1823”

(MacMinn, p. 3).

sir,—

Among the numberless blessings which we are continually told that we owe to our glorious Constitution, a good administration of justice has always been considered as the most valuable. While the judicature of every other nation is corrupt, profligate and oppressive—a ready tool in the hands of power; it has been our boast that ours alone is pure and undefiled; that it gives ear alike to the rich and to the poor, that neither the interests nor the prejudices of rank and station ever divert our Judges from the straight path of equity and impartiality.

A practical illustration of this inestimable blessing occurred some days since at the Queen-square Police-office; and although several papers, and you, Sir, among the rest, have taken up the subject, far too little stress has, in my opinion, been laid upon it.

A servant of a lady of rank presented herself at the office, to complain of ill-treatment received from her Ladyship. Her statement appeared in the papers. A day or two after the husband of the lady appeared, and denied the story told by the servant.1 So far both parties stood upon the same ground. On one side was the woman’s affirmation; on the other, that of her master. The woman’s story was probably false: that is not the question. It is not sufficient that it should be presumed to be false; there ought to be evidence, and conclusive evidence of its falsehood, before a Magistrate, who sits to act as a Judge, should take upon himself to reject her application. Observe now the conduct of Mr. White: not only does he without farther inquiry pronounce in favour of the gentleman, upon his own affirmation only; he does more—because the newspapers inserted the woman’s story, being equally ready to insert that of her master, he declares that reporters shall be no longer admitted into Court.

That defect of publicity should occasion defect of evidence against criminals, by preventing many persons from hearing of the trial, who would otherwise have come forward as witnesses, is the least of the mischiefs which will arise out of this precedent. The impunity which it will secure to a corrupt Judge, is the greatest.

Although it is the prevailing cry of the English Aristocracy that the Judges are immaculate, and although a deluded people have too long given them credit for any quantity of virtue which they think fit to claim, the public now at length begin to learn that it is absurd to expect from men the qualities of angels. To make a man a Judge, does not change his nature. Judges, like other men, will always prefer themselves to their neighbours. Judges, like other men, will indulge their indolence and satiate their rapacity whenever they can do it without fear of detection. The judicial office offers not fewer, but more numerous, and far more immediate temptations, than one who is not a Judge can easily be subject to. Allow any man to profit by injustice, and it is not the name of Judge which will shield the people from his oppression. When we see how soon almost any virtue yields to continued temptation, there needs little to persuade us, that if every Magistrate were to follow the example of Mr. White, and administer justice with closed doors, Magistrates would ere long be again what they were in the time of Fielding and of Smollett2 —leagued with every thief in London.

To illustrate the tendency of the precedent, I will put a case; and it is one which might easily have occurred. — Suppose that the woman’s story had been correct, and that of her master false; it will not be denied that there are masters who would not scruple to tell a lie, if they knew that, as in this case, their simple affirmation would put an end to the dispute. But it is only a rich man, it is only a member of the aristocracy, whose word is to be taken as conclusive evidence in his own cause. Thus then, whenever a rich individual and a poor one contradict each other on a matter of fact, the poor man is to be disbelieved, and the rich man suffered to carry off (perhaps) the wages of mendacity. And, to crown all, this iniquity is to be covered with the veil of secrecy. Then, perhaps, other motives than aristocratic sympathies may mix themselves in the decision of causes; again, perhaps, we may see a judicial controversy transformed into a competition between the purses of the parties, which can best satisfy the rapacity of the Judge.

Mr. White may derive a precedent, though not an excuse, for the violation of almost the only security we have for the purity of judicature, from the example which has been set by higher authorities, of prohibiting the publication of trials, until the whole of the evidence shall have been given,* for the benevolent purpose, forsooth, of preventing ex parte statements from going forth to the world, and giving a false impression of the state of the case. I am not aware that it is a recognised maxim of jurisprudence, however frequently it may be acted upon in practice, that occasional and partial evil shall preponderate over universal good. There might be some reason indeed, for preventing ex parte statements from going forth, if the Judges could invent any method of hearing both parties at once. Until, however, some such method shall have been discovered, I shall continue to think that if Juries, who are taken from among the public, can hear first one party, and then the other, and yet decide justly, there cannot be much danger in presenting the evidence to the public, in precisely the same order as it comes before the Jury.

A Judge must always have much to gain by injustice: and if due securities are not provided, he will do injustice. The only efficient security which our Constitution provides is publicity: it is the disgrace which a Judge incurs by an unjust decision. This disgrace is greater or less, according as the public attention is more or less drawn to the case. Now it is well known that after a cause is decided, the interest taken in it to a great degree subsides. The prohibition of ex parte statements is, therefore, a contrivance to avert the public attention from abuses of judicial authority: to protect the Judges from that odium which their conduct may deserve.† Encouraged by the success of this indirect attack upon the only security for good judicature, Mr. White, more boldly, has cut the Gordian knot, and destroyed that security altogether.

This is not, however, an affair to be passed over in silence. The securities against abuse, which, in the present state of our Government, we possess, are not so numerous that we can afford to lose one, and that one the most important of them. He is not a lover of good judicature, or he is a very blind one, who does not cry shame upon Mr. White, for setting a precedent so destructive of all security for justice; that if he himself were deliberately planning the most flagrant abuses of power, he could not have hit upon an expedient better calculated to serve his purpose.

A Lover of Justice

N.B. Since writing the above, I have had the pleasure to learn that Reporters still continue to attend the Office, notwithstanding the injunction of Mr. White.

[1 ]For the complaint by Mrs. Lang, see, e.g., “Police. Queen-Square. Lady Caroline Lamb,” British Press, 11 Aug., 1823, p. 4, an account that William Lamb cited as libellous in his complaint, which is given in “Police. Queen Square,” Morning Chronicle, 15 Aug., p. 4.

[2 ]Henry Fielding (1707-54), novelist and magistrate, whose portrait of Justice Thrasher as a “Trading Justice” in Amelia, Bk. I, Chap. ii (Works, 12 vols. [London: Richards, 1824], Vol. X, pp. 9-15), is cited by James Mill in his Commonplace Book, Vol. I, f. 137v (London Library); Tobias George Smollett (1721-71), novelist, who like Fielding wrote of criminal life, comments on the failings of judges in his History of England (1757), 5 vols. (London: Cadell and Baldwin, 1790), Vol. III, pp. 330-1.

[* ]The proprietor of The Observer Newspaper was reprimanded by the Court, for publishing one part of the trial of Thistlewood and others, before the trial was closed. [William Innell Clement (d. 1852) was reprimanded by Charles Abbott (1762-1832) on 17 Apr., 1820; a fine was levied by the Court of High Commission. (See “Old Bailey,” Examiner, 23 Apr., 1820, p. 270.) Arthur Thistlewood (1770-1820), the leader of the Cato St. conspiracy to murder Lord Liverpool’s cabinet, was executed for high treason and murder.]

[† ]That they may be themselves bonâ fide, and may not think they deserve odium, does not affect the question. The consequences to the public are the only thing which deserves attention.