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afmy, however numerous, will ever be able topenetrate fortymiles into the country, if, proper methods be taken to oppose it, and if we know how to avail ourselves of the numberless resources which may be drawn from the face of the country." -—In his Military History, we find these words: "whoever Weighs what we have said will be convinced that the ideas and fears of a (Fr.iich) invasion were vain and absurd." (See Extracts, p. ico.) He also use* these remarkable expressions: "VVhen 1 consider this subject in a military light only, I wish almost, that the enemy had made such an attempt; because once for all they would have seen the absurdity and danger of it, and we should for ever have been cured of our fears '■"
In conclusion, it is evident that we have not been induced by the merits or the weight of this memoir to devote to it £0 much of our time and attention: but we have reckoned it a serious public duty, on a topic of such moment, to point out not only the erroneous- but the dangerous tendency of the opinions here delivered; as calculated both for facilitating the enemy's attempts to subdue the couptry, and for reconciling the minds of the people to measures which, if adopted, would unquestionably introduce into it an absolute military domir nation.
Art XIV. Scotch Reform; Considered with Reference to the Plan proposed in tire late Parliament, for the Regulation of the Courts, and the Administration of Justice, in Scotland; with Illustrations from English Nut-Rcform : in the Course of which, divers Imperfections, Abuses, and Corruptions, in the Administra. tion of justice, with their Causes, are now for the first Time brought to Light. In a Series of Letters addressed to the Right Hon. Lord Grenville, &c. &c. With Tables, in which the principal Causes of factitious Complication, Delay, Vexation, an< Expence, are distinguished from such as are natural and unavoidable. By Jeremy Bentham, of Lincoln's Inn, Esq. Barrister at Law. 8vo. pp. ico. 6s. 6ewed. Ridgway. 1808.
IT is much to be regretted that a writer so ingenious, original, and profound as Mr. Bentham should in all his compositions so entirely neglect exterior, and be so little solicitous that his manner should correspond with his matter.If in the present instance due pains of this kind had been taken, a tract which, we fear, will not now have to boast of many readers would have excited general notice; and the attention of the public would have been drawn to points of high interest and importance. The merit of this pamphlet,
as referable to the measure which it examines and criticises, is ■indeed slight, since from its commencement to its close this object is but little kept in view: but it has claims which rest on general observations, introduced in the course of it without much connection, that display the same spirit of bold inquiry, the same skill and ability in analyzing moral subjects, and the same habit of deep thinking, which are to be traced in all the performances of Mr. Bentham.
In the first letter, the author arraigns those proceedings which take place in our courts of law previously to trial, and contrasts them with others that would occur under a plan which he proposes, and the outline of which he has sketched. To this plan he gives the denomination of Natural Procedure; while he assigns the appellation of Technical Procedure to our established system.
Under this scheme of Natural .Procedure, all suits in the ;first instance are to be submitted to the decision of a single judge; the parties ate personally to be heard and confronted; the pleadings are to be simple, and according to the truth; vivi voce evidence, when attainable, is to be exclusively received; appearance, and the production of things which it may be necessary to have in Court at the trial, are to be effectually conforced j tribunals are to be local; a due number of them is to be set up throughout the empire; and their jurisdiction is to have geographical limits only. The author's courts of natural procedure are represented by himself as nothing more than courts of conscience, with powers similar to our present superior tribunals. In the parallel which he runs between the proposed and the established system, we meet with hints and suggestions which are in his best manner, and which well deserve the attention of legislators: but, if we may take the liberty of delivering an opinion on the respective claims of these two plans, we have no hesitation in declaring "that, objectionable as we acknowlege our present system to be in many respects, we should deprecate its exchange for that of Mr. B. Some of the vices which he imputes to these proceedings are properly to be laid to the charge of time; while others are'of a nature from which no system can be wholly free. Will the ingenious author guarantee his natural procedure against the effects of time; and will he pretend that under it an unprincipled litigant shall not be able to vex arid, harass a htna Jide suitor? Of any such empiricism we fully acquit him.—Had these considerations, however, been present in his mind, and allowed to have their due weight, we apprehend that he would have somewhat qualified his censure of
Q 3 our our institutions, and have expressed himself in terms less harsh of those who act under them.
In his second letter, Mr. Bentham argues against a multiplicity of judges, and states his reasons for preferring those tribunals at which justice is administered by a single judge :— but, while the Court decides on facts as well as law, we shall, until better instructed, continue to think that the suitor is more secure before a tribunal which is filled by a number of judges, than before one in which a single individual decides. Thd Court created by the Grenville Act, which Mr. Bentham so properly eulogizes, is an authority directly in opposition to his doctrine on this point. The proposed division of the Court of Sessions into sections engages his approbation, and he only complains of the arrangement as not going far enough. He sets no high value on the competition of which the measure boasted; and according to his idea, competition, in order to have any value, shfculd be not between Court and Court similarly constituted, but between system and system: by the side of the present tribunals, he would have those of natural procedure set up; and with nothing short of a competition of this kind will he be satisfied.
The usage of having so great a number of judges in too Court of Sessions is thus explained by Mr. B.:
• At its institution, anno 1532, why was the court so,crowded as we see it ?—because France was the model for every thing, and ia France judicature was thus crowded. In France how came judicature to be thus crowded? Because the sale of the seats was an object of finance. From this sinister interest came the custom: from the custom, the prejudice: and that prejudice so strong, that it became a sort-of axiom—that if in any instance the ends of judicature failed of being fulfilled, it was for want of a sufficiently great multitude of Judges.'
In letter III. Mr. Bentham inveighs with great warmth and force against the departure from truth allowed in pleading, in both the English and Scotch Courts: but on this liberty, the proposed reform sets no new nor effectual restraint; while • the author, if we rightly comprehend him, would have the allegations on both sides verified on oath, or in some other way preferred under a sanction equally binding.
On the proposed plan of reform, " the defender is required, in his defence, distinctly to admit or deny all relevant .facts alleged in the summons or other writ by which the cause is brought into Courtand it appears that a recommendation of this sort, for it amounts to nothing more, is not new in the law of Scotland. Mr. Bentham, addressing the noble patron of the plan, says;
'In rummaging among the Acts of Sederunt, I found a part of one, and of so recent a date as nth August 17S7, in these terms:— "When the Defendant receives the Summons, he shall therewith return, upon a separate paper, his whole Defences, both dilatory and peremptory, stating the facts he is to insist upon, arid explicitly admitting or denying the several facts set forth in the Pursiet's libel."
• To be sure the tenor is not precisely the same : Anno 1787, f*plicilly'; Anno 1806, distinctly: — but whether in purport, there be any material variance, your Lordship willjudge.
* Now then, my Lord, this law of the Scotch Judges, is it acted upon or not? If acted upon, your Lordship sees what has come of it: if not acted upon, but neglected, what security does the Resolution give—what security is it in the power of the learned Author to give—that the neglect will not continue?'
We insert the passages that follow, not merely on account of the sentiments which they contain, but as specimens of the style, spirit, and manner of the present publication;
'All this while, if by Pleadings are to be understood demand, with particulars and grounds of demand, on one aide—admissions or defences, with grounds of defence on the other—think not, my Lord, that if it depended upon me, written Pleadings would be no more. On the contrary< printing, where properly managed, being a cheaper mode of writing, great and constant use would be made of them: though, unfortunately for their reception, upon such terms as would be of little use to Pleaders.'—
'Yes, my Lord: speak the word, and a body of law with a system of Pleading raised upon it, you shall have. Comyns, title Pleader, shall be taken into the Laboratory. It shall be thrown into the roasting furnace; the arsenic, 60 per cent, will fly off in fume :—it shall be consigned to the cupel; the lead, 30 per cent, will exude » out, and repose for everlasting in the powder of dead men's bones. s The golden button, Jo per cent, shall be gathered up, my Lord, and made the most of.
1 On the present occasion, with the benefit of second thoughts, I spare your Lordship's indulgence no light load, which, under a first impulse, I had destined for it, about Issues, general and special, Summonses in the Scotch style with libels in the belly of them', and Sco'tch Petitions, and English Declarations and Pleas, and English Assumpsi t Trover, and Ejectment, and Scotch Ranking and Sale: and the existence in Scotland of the equivalent of English Declarations, and the non-existence of the equivalent of English Pleas: —and the original old English Castle of Chicane, and the new wing added to it in Lord Mansheld's time, (for in business addition is as welcome as subtraction is invidious) to wit, under the name of •* Particulars," and so forth. How fortunate is it, for one of us at least, that the discovered nihility of this part of the learned Improver's basis saves me from the task of seeking to load it with any such superstructure!'
Mr. Bentham's fourth and concluding letter is of great interest, and displays much of that ability and, acuteness by 1 G 4 which which he stands distinguished. He here considers that part of the plan which was to have introduced trial by Jury into Scotland, and from which he takes occasion to examine generally this mode of judicial decision. This institution, so universally in cur own country the object of reverence and encomium, is coldly hailed, and £ven slightly treated by this reforming philosopher; if it be not degraded in rank and consideration, its active functions are greatly cwcumscribed. and its importance diminished ; it is never to interpose in suits in the first instance, at least in civil suits; and it is only to be introduced as a tribunal of appeal from the decision of the single judge. On the author's plan, its province is less to decide, than to check and rectify misdecision. This, like all other human institutions, has limits to its utility, and labours under imperfections; and it; the eye of impartial reason, we grant, it is not that absolutely perfect thing which it has been represented to be by blind and indiscriminate admirers: but that it has been in this country productive of inestimable benefits, and that it has formed the principal bulwark of our invaluable rights and privileges as subjects of a free state, are notions which the ingenuity and authority of Mr. Bentham cannot induce us hastily to discard. If in some cases it renders inadequate justice, and if in particular instances the individual derives from it imperfect redress, we cannot shut our eyes against its salutary and benignant operation as it refpects the community at large. Legal proceedings, we conceive, are to be regarded in a twofold view,—as they affect the individual, and as they affect the commonwealth;—as they enable the former to assert and defend his rights with more or less trouble, delay, and expence; and as they cherish, invigorate, and support public liberty. This last aspect of jurisprudence seems to have been very much overlooked in the letters before us. The rapid summary and economical procedures, which so decidedly engage the author's preference, must leave much to the conscience and discretion of the judge :—but we perceive that we have unwittingly glided into a doctrine, against which a violent anathema is thundered by the author in the present perform* ance;—a doctrine which he is pleased to denominate
'A hack epigram, made by Montesquieu, and retailed by Blackstone, in which the idea of incompatibility as between justiet and liberty is insinuated: a piece of sophistry which, whether in design or no, may be set down as being, in tendency, one of the most mischievous that wit was ever employed in varnishing; and which, before I close this address, I feel myself strongly tempted to strip of its varnish, that lawyers in general, and especially lawyers to whose authority height gives weight, may, by shame, and fear of public indignation,, find themselves estopped from using it.*