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 Front Page arrow Titles (by Subject) arrow 19.: TECHNICALITIES OF ENGLISH LAW MORNING CHRONICLE, 18 SEPT. 1823, P. 2 - The Collected Works of John Stuart Mill, Volume XXII - Newspaper Writings December 1822 - July 1831 Part I

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Subject Area: Political Theory
Collection: The Collected Works of John Stuart Mill

19.: TECHNICALITIES OF ENGLISH LAW MORNING CHRONICLE, 18 SEPT. 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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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


19.

TECHNICALITIES OF ENGLISH LAW

MORNING CHRONICLE, 18 SEPT. 1823, P. 2

Arguing one of Bentham’s central tenets, the absurdity of some English legal practices, Mill in this letter comments on the quashing of cases on technical grounds. He refers to two accounts in the Morning Chronicle, “Police News. Hatton-Garden,” 9 Sept., p. 4, and “Police. Hatton-Garden,” 16 Sept., p. 4. Headed as title, subheaded “To the Editor of the Morning Chronicle,” the letter is described in Mill’s bibliography as “A letter on the Technicalities of English Law, wch. appeared in the Chronicle of 18th September 1823. Not signed.” (MacMinn, p. 3.)

sir,—

In your Paper of Tuesday, the 9th of September, I observed a new instance of legal quashing. A number of bakers were brought up, on the charge of selling bread otherwise than by weight. It was discovered that the Magistrate’s name had not been inserted in the indictment, and in consequence of this omission, the charge fell to the ground. I also found in your Paper of Tuesday the 16th, a similar instance of quashing, because an illiterate informer, instead of writing the word afternoon, had written after-forenoon.1

If English law were really “the perfection of human reason,”2 no one would be acquitted, but because he was innocent—no one condemned, but because he was guilty. To praise a system under which men are acquitted on any ground, except the insufficiency of the evidence of guilt, implies either the grossest insincerity, or the most depraved understanding. All formalities which do not facilitate the attainment of truth, are utterly useless, and as they almost always enhance the trouble and expence, they amount to a tax upon justice, and frequently to the utter denial of it. To this we must add the complicated evils which ensue, if it be discovered that a formality has been omitted. The previous proceedings are invalidated, the chance of impunity to the guilty is increased, and additional trouble and expence are occasioned to the innocent, by the recommencement of proceedings which may already have cost them far more than they can bear.

Will any one assert that the omission of the Magistrate’s name in the indictment, renders it a whit more difficult to determine whether the parties are guilty or innocent? And if it does not, on what principle can the quashing of the indictment be justified?

But quashing is the favourite pastime of lawyers; nor is the motive difficult to divine. Every new indictment brings new fees into the pockets of Learned Gentlemen. Who can wonder, that a circumstance of such importance should outweigh in their minds the ruin of a thousand families.

Quashing is not confined to the prosecution of bakers for selling bread in an illegal manner. A law suit which has lasted for years may be rendered useless by the discovery that an insignificant formality has been omitted at the commencement. And so numerous are these formalities, that no inconsiderable proportion of the law proceedings which are instituted in this country terminate in that way. A gentleman may be deprived of his estate by the discovery of a technical flaw in his title; so frequently does this occur, that there are few estates, in Great Britain, the title to which is not liable to dispute, and Mr. Canning, in Parliament, spoke of an inquiry into the title deeds of estates as being one of the grossest iniquities which can be perpetrated.3

When it is proposed to substitute for the present confused and heterogeneous mass of statutes and cases, a Code constructed, not on a view of what has been done heretofore, but of what ought to be done hereafter—a cry is usually raised that such a reform would annihilate existing rights. Never was accusation more ill-founded, nor does any thing prove more conclusively than the currency which it has obtained, how readily mankind consent to take the opinions of the “constituted authorities” for gospel, on subjects upon which they may and ought to judge for themselves. The fact is, that the first step of an efficient reform of the law would be to pass an Act confirming and establishing all titles in which no flaw could be detected on a retrospect of a very limited number of years.

But now the omission of an unmeaning formality at a distance of forty or fifty years, may cast opulent families into the depth of poverty; and so far is the English law from securing rights, that every owner of land pays, at an average, 5 per cent. on his annual rent into the hands of lawyers, on account of the badness of the law. All this happens under a system which is, notwithstanding, “the perfection of human reason,” although its rules were all framed six or seven centuries ago, and although there is not one of them which, in accuracy, precision, or, if rigidly enforced, even in justice, rises one step above the level of the age in which it was composed.

[1 ]It would appear that only one baker, Joseph Rose, was brought up (the account on 9 Sept. was, however, entitled “Bakers Must Not Sell Quartern Loaves”), though he had three informations laid against him; he was released because the magistrate had not signed two of the informations. Rose was also the baker brought up in the second case (reported on 16 Sept.); in both cases William Johnson was the informer.

[2 ]Edward Coke (1552-1634), The First Part of the Institutes of the Lawes of England; or, A Commentarie upon Littleton (London: Society of Stationers, 1628), p. 97 (Lib. II, Cap. vi, Sect. 138).

[3 ]Cf. George Canning (1770-1827), Speech on the Freehold Estates Bill (28 Jan., 1807), PD, 1st ser., Vol. 8, cols. 857-8.