The English Utilitarians Volume I Part 16

[403] These are the two cla.s.ses of 'springs of action' omitted in the _Table_.

[404] _Works_ ('Morals and Legislation'), i. 68.

[405] Here Bentham lays down the rule that punishment should rise with the strength of the temptation, a theory which leads to some curious casuistical problems. He does not fully discuss, and I cannot here consider, them. I will only note that it may conceivably be necessary to increase the severity of punishment, instead of removing the temptation or strengthening the preventive action. If so, the law becomes immoral in the sense of punis.h.i.+ng more severely as the crime has more moral excuse. This was often true of the old criminal law, which punished offences cruelly because it had no effective system of police. Bentham would of course have agreed that the principle in this case was a bad one.

IV. CRIMINAL LAW

We have now, after a long a.n.a.lysis, reached the point at which the principles can be applied to penal law. The legislator has to discourage certain cla.s.ses of conduct by annexing 'tutelary motives.' The cla.s.ses to be suppressed are of course those which diminish happiness. Pursuing the same method, and applying results already reached, we must in the first place consider how the 'mischief of an act' is to be measured.[406] Acts are mischievous as their 'consequences' are mischievous; and the consequences may be 'primary' or 'secondary.'

Robbery causes pain to the loser of the money. That is a primary evil.

It alarms the holders of money; it suggests the facility of robbery to others; and it weakens the 'tutelary motive' of respect for property.

These are secondary evils. The 'secondary' evil may be at times the most important. The non-payment of a tax may do no appreciable harm in a particular case. But its secondary effects in injuring the whole political fabric may be disastrous and fruitful beyond calculation.

Bentham proceeds to show carefully how the 'intentions' and 'motives' of the evildoer are of the greatest importance, especially in determining these secondary consequences, and must therefore be taken into account by the legislator. A homicide may cause the same primary evil, whether accidental or malignant; but accidental homicide may cause no alarm, whereas the intentional and malignant homicide may cause any quant.i.ty of alarm and shock to the general sense of security. In this way, therefore, the legislator has again indirectly to take into account the moral quality which is itself dependent upon utility.

I must, however, pa.s.s lightly over a very clear and interesting discussion to reach a further point of primary importance to the Utilitarian theory, as to the distinction between the moral and legal spheres.[407] Bentham has now 'made an a.n.a.lysis of evil.' He has, that is, cla.s.sified the mischiefs produced by conduct, measured simply by their effect upon pleasures or pains, independently of any consideration as to virtue and vice. The next problem is: what conduct should be criminal?--a subject which is virtually discussed in two chapters (xv.

and xix.) 'on cases unmeet for punishment' and on 'the limits between Private Ethics and the act of legislation.' We must, of course, follow the one clue to the labyrinth. We must count all the 'lots' of pain and pleasure indifferently. It is clear, on the one hand, that the pains suffered by criminals are far less than the pains which would be suffered were no such sanctions applied. On the other hand, all punishment is an evil, because punishment means pain, and it is therefore only to be inflicted when it excludes greater pain. It must, therefore, not be inflicted when it is 'groundless,' 'inefficacious,'

'unprofitable,' or 'needless.' 'Needless' includes all the cases in which the end may be attained 'as effectually at a cheaper rate.'[408]

This applies to all 'dissemination of pernicious principles'; for in this case reason and not force is the appropriate remedy. The sword inflicts more pain, and is less efficient than the pen. The argument raises the wider question, What are the true limits of legislative interference? Bentham, in his last chapter, endeavours to answer this problem. 'Private ethics,' he says, and 'legislation' aim at the same end, namely, happiness, and the 'acts with which they are conversant are _in great measure_ the same.' Why, then, should they have different spheres? Simply because the acts 'are not _perfectly and throughout_ the same.'[409] How, then, are we to draw the line? By following the invariable clue of 'utility.' We simply have to apply an a.n.a.lysis to determine the cases in which punishment does more harm than good. He insists especially upon the cases in which punishment is 'unprofitable'; upon such offences as drunkenness and s.e.xual immorality, where the law could only be enforced by a mischievous or impossible system of minute supervision, and such offences as ingrat.i.tude or rudeness, where the definition is so vague that the judge could not safely be entrusted with the power to punish.'[410] He endeavours to give a rather more precise distinction by subdividing 'ethics in general' into three cla.s.ses. Duty may be to oneself, that is 'prudence'; or to one's neighbour negatively, that is 'probity'; or to one's neighbour positively, that is 'benevolence.'[411] Duties of the first cla.s.s must be left chiefly to the individual, because he is the best judge of his own interest. Duties of the third cla.s.s again are generally too vague to be enforced by the legislator, though a man ought perhaps to be punished for failing to help as well as for actually injuring. The second department of ethics, that of 'probity,' is the main field for legislative activity.[412] As a general principle, 'private ethics' teach a man how to pursue his own happiness, and the art of legislation how to pursue the greatest happiness of the community. It must be noticed, for the point is one of importance, that Bentham's purely empirical method draws no definite line. It implies that no definite line can be drawn. It does not suggest that any kind of conduct whatever is outside the proper province of legislator except in so far as the legislative machinery may happen to be inadequate or inappropriate.

Our a.n.a.lysis has now been carried so far that we can proceed to consider the principles by which we should be guided in punis.h.i.+ng. What are the desirable properties of a 'lot of punishment'? This occupies two interesting chapters. Chapter xvi., 'on the proportion between punishments and offences,' gives twelve rules. The punishment, he urges, must outweigh the profit of the offence; it must be such as to make a man prefer a less offence to a greater--simple theft, for example, to violent robbery; it must be such that the punishment must be adaptable to the varying sensibility of the offender; it must be greater in 'value' as it falls short of certainty; and, when the offence indicates a habit, it must outweigh not only the profit of the particular offence, but of the undetected offences. In chapter xvii. Bentham considers the properties which fit a punishment to fulfil these conditions. Eleven properties are given. The punishment must be (1) 'variable,' that is, capable of adjustment to particular cases; and (2) equable, or inflicting equal pain by equal sentences. Thus the 'proportion' between punishment and crimes of a given cla.s.s can be secured. In order that the punishments of different cla.s.ses of crime may be proportional, the punishments should (3) be commensurable. To make punishments efficacious they should be (4) 'characteristical' or impressive to the imagination; and that they may not be excessive they should be (5) exemplary or likely to impress others, and (6) frugal. To secure minor ends they should be (7) reformatory; (8) disabling, _i.e._ from future offences; and (9) compensatory to the sufferer. Finally, to avoid collateral disadvantages they should be (10) popular, and (11) remittable. A twelfth property, simplicity, was added in Dumont's redaction. Dumont calls attention here to the value of Bentham's method.[413] Montesquieu and Beccaria had spoken in general terms of the desirable qualities of punishment. They had spoken of 'proportionality,' for example, but without that precise or definite meaning which appears in Bentham's Calculus. In fact, Bentham's statement, compared to the vaguer utterances of his predecessors, but still more when compared to the haphazard brutalities and inconsistencies of English criminal law, gives the best impression of the value of his method.

Bentham's next step is an elaborate cla.s.sification of offences, worked out by a further application of his bifurcatory method.[414] This would form the groundwork of the projected code. I cannot, however, speak of this cla.s.sification, or of many interesting remarks contained in the _Principles of Penal Law_, where some further details are considered. An a.n.a.lysis scarcely does justice to Bentham, for it has to omit his ill.u.s.trations and his flashes of real vivacity. The mere dry logical framework is not appetising. I have gone so far in order to ill.u.s.trate the characteristic of Bentham's teaching. It was not the bare appeal to utility, but the attempt to follow the clue of utility systematically and unflinchingly into every part of the subject. This one doctrine gives the touchstone by which every proposed measure is to be tested; and which will give to his system not such unity as arises from the development of an abstract logical principle, but such as is introduced into the physical sciences when we are able to range all the indefinitely complex phenomena which arise under some simple law of force. If Bentham's aim could have been achieved, 'utility' would have been in legislative theories what gravitation is in astronomical theories. All human conduct being ruled by pain and pleasure, we could compare all motives and actions, and trace out the consequences of any given law. I shall have hereafter to consider how this conception worked in different minds and was applied to different problems: what were the tenable results to which it led, and what were the errors caused by the implied oversight of some essential considerations.

Certain weaknesses are almost too obvious to be specified. He claimed to be constructing a science, comparable to the physical sciences. The attempt was obviously chimerical if we are to take it seriously. The makes.h.i.+ft doctrine which he subst.i.tutes for psychology would be a sufficient proof of the incapacity for his task. He had probably not read such writers as Hartley or Condillac, who might have suggested some ostensibly systematic theory. If he had little psychology he had not even a conception of 'sociology.' The 'felicific calculus' is enough to show the inadequacy of his method. The purpose is to enable us to calculate the effects of a proposed law. You propose to send robbers to the gallows or the gaol. You must, says Bentham, reckon up all the evils prevented: the suffering to the robbed, and to those who expect to be robbed, on the one hand; and, on the other, the evils caused, the suffering to the robber, and to the tax-payer who keeps the constable; then strike your balance and make your law if the evils prevented exceed the evils caused. Some such calculation is demanded by plain common sense. It points to the line of inquiry desirable. But can it be adequate? To estimate the utility of a law we must take into account all its 'effects.' What are the 'effects' of a law against robbery? They are all that is implied in the security of property. They correspond to the difference between England in the eighteenth century and England in the time of Hengist and Horsa; between a country where the supremacy of law is established, and a country still under the rule of the strong hand.

Bentham's method may be applicable at a given moment, when the social structure is already consolidated and uniform. It would represent the practical arguments for establis.h.i.+ng the police-force demanded by Colquhoun, and show the disadvantages of the old constables and watchmen. Bentham, that is, gives an admirable method for settling details of administrative and legislative machinery, and dealing with particular cases when once the main principles of law and order are established. Those principles, too, may depend upon 'utility,' but utility must be taken in a wider sense when we have to deal with the fundamental questions. We must consider the 'utility' of the whole organisation, not the fitness of separate details. Finally, if Bentham is weak in psychology and in sociology, he is clearly not satisfactory in ethics. Morality is, according to him, on the same plane with law.

The difference is not in the sphere to which they apply, or in the end to which they are directed; but solely in the 'sanction.' The legislator uses threats of physical suffering; the moralist threats of 'popular'

disapproval. Either 'sanction' may be most applicable to a given case; but the question is merely between different means to the same end under varying conditions. This implies the 'external' character of Bentham's morality, and explains his insistence upon the neutrality of motives. He takes the average man to be a compound of certain instincts, and merely seeks to regulate their action by supplying 'artificial tutelary motives.' The 'man' is given; the play of his instincts, separately neutral, makes his conduct more or less favourable to general happiness; and the moralist and the legislator have both to correct his deviations by supplying appropriate 'sanctions.' Bentham, therefore, is inclined to ignore the intrinsic character of morality, or the dependence of a man's morality upon the essential structure of his nature. He thinks of the superficial play of forces, not of their intimate const.i.tution. The man is not to be changed in either case; only his circ.u.mstances. Such defects no doubt diminish the value of Bentham's work. Yet, after all, in his own sphere they are trifles. He did very well without philosophy.

However imperfect his system might be considered as a science or an ultimate explanation of society and human nature, it was very much to the point as an expression of downright common sense. Dumont's eulogy seems to be fully deserved, when we contrast Bentham's theory of punishment with the theories (if they deserve the name) of contemporary legislators. His method involved a thoroughgoing examination of the whole body of laws, and a resolution to apply a searching test to every law. If that test was not so unequivocal or ultimate as he fancied, it yet implied the constant application of such considerations as must always carry weight, and, perhaps, be always the dominant considerations, with the actual legislator or jurist. What is the use of you? is a question which may fairly be put to every inst.i.tution and to every law; and it concerns legislators to find some answer, even though the meaning of the word 'use' is not so clear as we could wish.

NOTES:

[406] _Morals and Legislation_, ch. xii.

[407] _Morals and Legislation_, ch. xiv. (a chapter inserted from Dumont's _Traites_).

[408] _Works_ ('Morals and Legislation'), i. p. 86.

[409] _Ibid._ i. 144.

[410] _Ibid._ i. 145.

[411] _Works_ ('Morals and Legislation'), i. 143.

[412] _Ibid._ i. 147-48.

[413] _Works_ ('Morals and Legislation'), i 406 _n._

[414] _Works_ ('Morals and Legislation'), i. 96 _n._

V. ENGLISH LAW

The practical value of Bentham's method is perhaps best ill.u.s.trated by his _Rationale of Evidence_. The composition of the papers ultimately put together by J. S. Mill had occupied Bentham from 1802 to 1812. The changed style is significant. n.o.body could write more pointedly, or with happier ill.u.s.trations, than Bentham in his earlier years. He afterwards came to think that a didactic treatise should sacrifice every other virtue to fulness and precision. To make a sentence precise, every qualifying clause must be somehow forced into the original formula.

Still more characteristic is his application of what he calls the 'substantive-preferring principle.'[415] He would rather say, 'I give extension to an object,' than 'I extend an object.' Where a substantive is employed, the idea is 'stationed upon a rock'; if only a verb, the idea is 'like a leaf floating on a stream.' A verb, he said,[416] 'slips through your fingers like an eel.' The principle corresponds to his 'metaphysics.' The universe of thought is made up of a number of separate 'ent.i.ties' corresponding to nouns-substantive, and when these bundles are distinctly isolated by appropriate nouns, the process of arranging and codifying according to the simple relations indicated by the copula is greatly facilitated. The ideal language would resemble algebra, in which symbols, each representing a given numerical value, are connected by the smallest possible number of symbols of operation, +, -, =, and so forth. To set two such statements side by side, or to modify them by inserting different constants, is then a comparatively easy process, capable of being regulated by simple general rules.

Bentham's style becomes tiresome, and was often improperly called obscure. It requires attention, but the meaning is never doubtful--and to the end we have frequent flashes of the old vivacity.

The _Rationale of Evidence_, as Mill remarks,[417] is 'one of the richest in matter of all Bentham's productions.' It contains, too, many pa.s.sages in Bentham's earlier style, judiciously preserved by his young editor; indeed, so many that I am tempted even to call the book amusing.

In spite of the wearisome effort to say everything, and to force language into the mould presented by his theory, Bentham attracts us by his obvious sincerity. The arguments may be unsatisfactory, but they are genuine arguments. They represent conviction; they are given because they have convinced; and no reader can deny that they really tend to convince. We may complain that there are too many words, and that the sentences are c.u.mbrous; but the substance is always to the point. The main purpose may be very briefly indicated. Bentham begins by general considerations upon evidence, in which he and his youthful editor indicate their general adherence to the doctrines of Hume.[418] This leads to an application of the methods expounded in the 'Introduction,'

in order to show how the various motives or 'springs of action' and the 'sanctions' based upon them may affect the trustworthiness of evidence.

Any motive whatever may incidentally cause 'mendacity.' The second book, therefore, considers what securities may be taken for 'securing trustworthiness.' We have, for example, a discussion of the value of oaths (he thinks them valueless), of the advantages and disadvantages of reducing evidence to writing, of interrogating witnesses, and of the publicity or privacy of evidence. Book iii. deals with the 'extraction of evidence.' We have to compare the relative advantages of oral and written evidence, the rules for cross-examining witnesses and for taking evidence as to their character. Book iv. deals with 'pre-appointed evidence,' the cases, that is, in which events are recorded at the time of occurrence with a view to their subsequent use as evidence. We have under this head to consider the formalities which should be required in regard to contracts and wills; and the mode of recording judicial and other official decisions and registering births, deaths, and marriages.

In Books v. and vi. we consider two kinds of evidence which is in one way or other of inferior cogency, namely, 'circ.u.mstantial evidence,' in which the evidence if accepted still leaves room for a process of more or less doubtful inference; and 'makes.h.i.+ft evidence,' such evidence as must sometimes be accepted for want of the best, of which the most conspicuous instance is 'hearsay evidence.' Book vii. deals with the 'authentication' of evidence. Book viii. is a consideration of the 'technical' system, that namely which was accepted by English lawyers; and finally Book ix. deals with a special point, namely, the exclusion of evidence. Bentham announces at starting[419] that he shall establish 'one theorem' and consider two problems. The problems are: 'what securities can be taken for the truth of evidence?' and 'what rules can be given for estimating the value of evidence?' The 'theorem' is that no evidence should be excluded with the professed intention of obtaining a right decision; though some must be excluded to avoid expense, vexation, and delay. This, therefore, as his most distinct moral, is fully treated in the last book.

Had Bentham confined himself to a pithy statement of his leading doctrines, and confirmed them by a few typical cases, he would have been more effective in a literary sense. His pa.s.sion for 'codification,' for tabulating and arranging facts in all their complexity, and for applying his doctrine at full length to every case that he can imagine, makes him terribly prolix. On the other hand, this process no doubt strengthened his own conviction and the conviction of his disciples as to the value of his process. Follow this clue of utility throughout the whole labyrinth, see what a clear answer it offers at every point, and you cannot doubt that you are in possession of the true compa.s.s for such a navigation. Indeed, it seems to be indisputable that Bentham's arguments are the really relevant and important arguments. How can we decide any of the points which come up for discussion? Should a witness be cross-examined? Should his evidence be recorded? Should a wife be allowed to give evidence against her husband? or the defendant to give evidence about his own case? These and innumerable other points can only be decided by reference to what Bentham understood by 'utility.' This or that arrangement is 'useful' because it enables us to get quickly and easily at the evidence, to take effective securities for its truthfulness, to estimate its relevance and importance, to leave the decision to the most qualified persons, and so forth. These points, again, can only be decided by a careful appeal to experience, and by endeavouring to understand the ordinary play of 'motives' and 'sanctions.' What generally makes a man lie, and how is lying to be made unpleasant? By rigorously fixing our minds at every point on such issues, we find that many questions admit of very plain answers, and are surprised to discover what a ma.s.s of obscurity has been dispelled. It is, however, true that although the value of the method can hardly be denied unless we deny the value of all experience and common sense, we may dispute the degree in which it confirms the general principle. Every step seems to Bentham to reflect additional light upon his primary axiom. Yet it is possible to hold that witnesses should be encouraged to speak the truth, and that experience may help us to discover the best means to that end without, therefore, admitting the unique validity of the 'greatest happiness' principle. That principle, so far as true, may be itself a deduction from some higher principle; and no philosopher of any school would deny that 'utility' should be in some way consulted by the legislator.

The book ill.u.s.trates the next critical point in Bentham's system--the transition from law to politics. He was writing the book at the period when the failure of the Panopticon was calling his attention to the wickedness of George III. and Lord Eldon, and when the English demand for parliamentary reform was reviving and supplying him with a sympathetic audience. Now, in examining the theory of evidence upon the plan described, Bentham found himself at every stage in conflict with the existing system, or rather the existing chaos of unintelligible rules. English lawyers, he discovered, had worked out a system of rules for excluding evidence. Sometimes the cause was pure indolence. 'This man, were I to hear him,' says the English judge, 'would come out with a parcel of lies. It would be a plague to hear him: I have heard enough already; shut the door in his face.'[420] But, as Bentham shows with elaborate detail, a reason for suspecting evidence is not a reason for excluding it. A convicted perjurer gives evidence, and has a pecuniary interest in the result. That is excellent ground for caution; but the fact that the man makes a certain statement may still be a help to the ascertainment of truth. Why should that help be rejected? Bentham scarcely admits of any exception to the general rule of taking any evidence you can get--one exception being the rather curious one of confession to a Catholic priest; secrecy in such cases is on the whole, he thinks, useful. He exposes the confusion implied in an exclusion of evidence because it is not fully trustworthy, which is equivalent to working in the dark because a partial light may deceive. But this is only a part of a whole system of arbitrary, inconsistent, and technical rules worked out by the ingenuity of lawyers. Besides the direct injury they gave endless opportunity for skilful manoeuvring to exclude or admit evidence by adopting different forms of procedure. Rules had been made by judges as they were wanted and precedents established of contradictory tendency and uncertain application. Bentham contrasts the simplicity of the rules deducible from 'utility' with the amazing complexity of the traditional code of technical rules. Under the 'natural' system, that of utility, you have to deal with a quarrel between your servants or children. You send at once for the disputants, confront them, take any relevant evidence, and make up your mind as to the rights of the dispute. In certain cases this 'natural' procedure has been retained, as, for example, in courts-martial, where rapid decision was necessary. Had the technical system prevailed, the country would have been ruined in six weeks.[421] But the exposure of the technical system requires an elaborate display of intricate methods involving at every step vexation, delay, and injustice. Bentham reckons up nineteen separate devices employed by the courts. He describes the elaborate processes which had to be gone through before a hearing could be obtained; the distance of courts from the litigants; the bandying of cases from court to court; the chicaneries about giving notice; the frequent nullification of all that had been done on account of some technical flaw; the unintelligible jargon of Latin and Law-French which veiled the proceedings from the public; the elaborate mysteries of 'special pleading'; the conflict of jurisdictions, and the manufacture of new 'pleas' and new technical rules; the 'entanglement of jurisdictions,' and especially the distinction between law and equity, which had made confusion doubly confounded. English law had become a mere jungle of unintelligible distinctions, contradictions, and c.u.mbrous methods through which no man could find his way without the guidance of the initiated, and in which a long purse and unscrupulous trickery gave the advantage over the poor to the rich, and to the knave over the honest man. One fruitful source of all these evils was the 'judge-made'

law, which Bentham henceforth never ceased to denounce. His ideal was a distinct code which, when change was required, should be changed by an avowed and intelligible process. The chaos which had grown up was the natural result of the gradual development of a traditional body of law, in which new cases were met under cover of applying precedents from previous decisions, with the help of reference to the vague body of unwritten or 'common law,' and of legal fictions permitting some non-natural interpretation of the old formulae. It is the judges, he had already said in 1792,[422] 'that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it and then beat him. This is the way you make laws for your dog, and this is the way the judges make laws for you and me.' The 'tyranny of judge-made law' is 'the most all-comprehensive, most grinding, and most crying of all grievances,'[423] and is scarcely less bad than 'priest-made religion.'[424] Legal fictions, according to him, are simply lies. The permission to use them is a 'mendacity licence.' In 'Rome-bred law ...

fiction' is a 'wart which here and there disfigures the face of justice.

In English law fiction is a syphilis which runs into every vein and carries into every part of the system the principle of rottenness.'[425]

The evils denounced by Bentham were monstrous. The completeness of the exposure was his great merit; and his reputation has suffered, as we are told on competent authority, by the very efficiency of his attack. The worst evils are so much things of the past, that we forget the extent of the evil and the merits of its a.s.sailant. Bentham's diagnosis of the evil explains his later att.i.tude. He attributes all the abuses to consciously corrupt motives even where a sufficient explanation can be found in the human stupidity and honest incapacity to look outside of traditional ways of thought. He admits, indeed, the personal purity of English judges. No English judge had ever received a bribe within living memory.[426] But this, he urges, is only because the judges find it more profitable as well as safer to carry out a radically corrupt system. A synonym for 'technical' is 'fee-gathering.' Lawyers of all cla.s.ses had a common interest in multiplying suits and complicating procedure: and thus a tacit partners.h.i.+p had grown up which he describes as 'Judge and Co.' He gives statistics showing that in the year 1797 five hundred and forty-three out of five hundred and fifty 'writs of error' were 'shams,'

or simply vexatious contrivances for delay, and brought a profit to the Chief Justice of over 1400.[427] Lord Eldon was always before him as the typical representative of obstruction and obscurantism. In his _Indications respecting Lord Eldon_ (1825) he goes into details which it must have required some courage to publish. Under Eldon, he says, 'equity has become an instrument of fraud and extortion.'[428] He details the proceedings by which Eldon obtained the sanction of parliament for a system of fee-taking, which he had admitted to be illegal, and which had been denounced by an eminent solicitor as leading to gross corruption. Bentham intimates that the Masters in Chancery were 'swindlers,'[429] and that Eldon was knowingly the protector and sharer of their profits. Romilly, who had called the Court of Chancery 'a disgrace to a civilised nation,' had said that Eldon was the cause of many of the abuses, and could have reformed most of the others. Erskine had declared that if there was a h.e.l.l, the Court of Chancery was h.e.l.l.[430] Eldon, as Bentham himself thought, was worse than Jeffreys.

Eldon's victims had died a lingering death, and the persecutor had made money out of their sufferings. Jeffreys was openly brutal; while Eldon covered his tyranny under the 'most accomplished indifference.'[431]

Yet Eldon was but the head of a band. Judges, barristers, and solicitors were alike. The most hopeless of reforms would be to raise a 'thorough-paced English lawyer' to the moral level of an average man.[432] To attack legal abuses was to attack a cla.s.s combined under its chiefs, capable of hoodwinking parliament and suppressing open criticism. The slave-traders whom Wilberforce attacked were comparatively a powerless excrescence. The legal profession was in the closest relations to the monarchy, the aristocracy, and the whole privileged and wealthy cla.s.s. They were welded into a solid 'ring.' The king, and his ministers who distributed places and pensions; the borough-mongers who sold votes for power; the clergy who looked for bishoprics; the monied men who aspired to rank and power, were all parts of a league. It was easy enough to talk of law reform. Romilly had proposed and even carried a 'reformatiuncle' or two;[433] but to achieve a serious success required not victory in a skirmish or two, not the exposure of some abuse too palpable to be openly defended even by an Eldon, but a prolonged war against an organised army fortified and entrenched in the very heart of the country.

NOTES:

[415] _Works_, iii. 267.

[416] _Ibid._ x. 569

[417] _Autobiography_, p. 116.

[418] The subject is again treated in Book v. on 'Circ.u.mstantial Evidence.'

[419] _Works_, vi. 204.

[420] _Works_, vii. 391.

[421] _Works_, vii. 321-25. Court-martials are hardly a happy example now.

[422] 'Truth _v._ Ashhurst' (1792), _Works_, v. 235.

[423] _Works_ ('Codification Pet.i.tion'), v. 442.

[424] _Ibid._ vi. 11.

[425] _Ibid._ v. 92.