Bentham Project

Truth versus Ashhurst

Jeremy Bentham, ‘Truth versus Ashhurst; or, law as it is, contrasted with what it is said to be’ (1792).

In The Works of Jeremy Bentham, published under the superintendence of his executor, John Bowring, vol. V (Edinburgh, Tait; London, Simpkin, Marshall; 1843), pages 231-237.

The Introduction is printed in a single column, while the article itself is printed in double columns: here, the beginning of each page in the Bowring edition is indicated (e.g.) {232} and, within the article, the end of each left-hand column {/}. All notes in the Bowring edition are footnotes, indicated with symbols: here, the notes have been converted to endnotes and the symbols have been supplemented with numbers (e.g.) *[1] and internal links. This text follows the Bowring text in all other respects, except that on page 236 a plural ‘s’ has been added within brackets.

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Iain Stewart, 19 November 1998 (iain.stewart [@] mq.edu.au)

Last modified 08.06.04


{231}


TRUTH versus ASHHURST;

OR,

LAW AS IT IS,

Contrasted

With what it is said to be.

WRITTEN IN DECEMBER 1792.

FIRST PUBLISHED IN 1823.

{232}


INTRODUCTION,

WRITTEN AUGUST 1823.

A SHORT time before the date of this paper, a charge, delivered the 19th of November 1792, to a Middlesex Grand Jury, by Sir William Ashhurst, then a Puisne Judge of the King’s Bench, was printed by the Constitutional Association of that time, and circulated with no small industry. In digging for other papers, the present one has just been dug up. The MS. copy, from which this is printed, was taken more than thirty years ago, and has not since been read by me. If in season then, let any one judge whether it be less so now; or whether it is likely to be less so, so long as the form of the government is what it is. The comment is here seen; the text was not found with it; the fidelity of the quotations may however be depended upon.

JEREMY BENTHAM.

August 27, 1823.





{233}

TRUTH VERSUS ASHHURST.

ASHHURST.—I. No man is so low as not to be within the law’s protection.

TRUTH.—Ninety-nine men out of a hundred are thus low. Every man is, who has not from five-and-twenty pounds, to five-and-twenty times five-and-twenty pounds, to sport with, in order to take his chance for justice. I say chance: remembering how great a chance it is, that, although his right be as clear as the sun at noon-day, he loses it by a quibble. Five-and-twenty pounds is less than a common action can be carried through for, at the cheapest: and five times five-and-twenty pounds goes but a little way in what they call a court of equity. Five-and-twenty pounds, at the same time, is more than three times what authors reckon a man’s income at in this country, old and young, male and female, rich and poor, taken together:*[1] and this is the game a man has to play again and again, as often as he is involved in a dispute, or receives an injury.

When comes this? From extortion, monopoly, useless formalities, law-gibberish, and law-taxes.

How many causes, out of each of which Mr. Justice Somebody has been getting in fees, while this speech of Mr. Justice Ashhurst’s has been printing, more in amount than many a poor family has to live upon for weeks! For so long as you have five pounds in the world, no fee, no justice. O rare judges! While their tongues are denying the mischief, their hands are making it.

How should the law be otherwise than dear, when those who pocket the money have had the setting of the price?—when places, that help to make it so are, as all the world knows, some given, and some sold by them? A list of places of this sort, which Mr. Justice Ashhurst, or those to the right and left of him, sell directly or indirectly, aboveboard or under the rose, with the profits of each, and how they arise; would be no unedifying account: but where is the Parliament that will call for it?

What comes, then, into their own pockets, heavy as the expense falls upon the poor suitor, is nothing in comparison of what they see shared among their brethren of the trade,—their patrons, and bottle-companions, and relations and dependents. Ten thousand a-year the average gains of a first-rate counsellor, and attorney’s in proportion. Three hundred {/} pounds the least fee that is ever taken for going from one circuit to the next. Three or four such fees earned sometimes in a day—country attorneys, town attorneys, and attorneys with purchased places attached to particular courts—conveyancers, special pleaders, equity-draughtsmen, opening counsel, and silk-gowns-men,—all separate, and not unfrequently all to fee in the same cause. When Mr. Justice was a counsellor, he would never take less than a guinea for doing anything, nor less than half a one of doing nothing. He durst not if he would: among lawyers, moderation would be infamy.

Why is it that, in a court called a court of equity, they keep a man his whole life in hot water, while they are stripping him of his fortune? Take one cause out of a thousand. Ten appointments have I known made for so many distinct days before a sort of judge they call a master, before one of them has been kept. Three is the common course; and as soon as everybody is there, the hour is at an end, and away they go again. Why? Because for every appointment the master has his fee.

Some of these law places are too good to be left to the gift even of judges: of these, which bring in thousands upon thousands a-year, the plunder goes to dukes and earls and viscounts, whose only trouble is to receive†[2] it.

As if law were not yet dear enough—as if there were not men enough trodden down "so low as not to be within its protection," session after session, the king is made to load the proceedings with taxes, denying justice to all who have not withal to pay them: all this in the teeth of Magna Charta. "We will deny justice"—says King John—"we will sell justice to no man."—This was the wicked King John. How does the good King George? He denies it to ninety-nine men out of a hundred, and sells it to the hundredth.

The lies and nonsense the law is stuffed with, form so thick a mist, that a plain man, nay, even a man of sense and learning, who is not in the trade, can see neither through nor into it: and though they were to give him leave to plead his own or his friend’s cause (which they won’t do in nine cases out of ten) {234} he would not be able to open his mouth for want of having bestowed the "twenty years lucubrations,"*[3] which they owned were necessary to enable a man to see to the bottom of it, and that, when there was not a twentieth part in it of what there is at present.

When an action, for example, is brought against a man, how do you think they contrive to give him notice to defend himself? Sometimes he is told that he is in jail: sometimes that he is lurking up and down the country, in company with a vagabond of the name of Doe; though all the while he is sitting quietly by his own fireside: and this my Lord Chief Justice sets his hand to. At other times, they write to a man who lives in Cumberland or Cornwall, and tell him that if he does not appear in Westminster Hall on a certain day he forfeits an hundred pounds. When he comes, so far from having anything to say to him, they won’t hear him; for all they want him for, is to grease their fingers.

That’s law: and now you shall see equity. Have you a question to ask the defendant? (for no court of law will so much as let you ask him whether his hand-writing be his own) you must begin by telling him how the matter stands, though your very reason for asking him is your not knowing. How fares it with truth all this while? Commanded or forbidden, according as a man is plaintiff or defendant. If you are a defendant, and tell lies, you are punished for it; if you are plaintiff, and will not tell lies, you lose your cause.†[4] They won’t so much as send a question to be tried by a jury, till they have made you say you have laid a wager about it, though wagers they tell you are illegal. This is a finer sort of law they call equity—a distinction as unheard-of out of England, as it is useless here to every purpose but that of delaying justice, and plundering those who sue for it.

Have you an estate to sell? Sometimes you must acknowledge it to belong to somebody else; sometimes see it taken from you by the judges, who give it to somebody else, with an order upon the crier of the court to give you such another: though, had it been given to your heirs for ever, you might have sold it without all this trouble. Is this specimen to your mind, my countrymen? The law is the same all over. Enemies to truth, because truth is so to them, they do what in them lies, to banish her from the lips and from the hearts of the whole people.

Not an atom of this rubbish will they ever suffer to be cleared way. How can you expect they should? It serves them as a fence to keep out interlopers. {/}


—————

ASHHURST.—II. The law of this country only lays such restraints on the actions of individuals as are necessary for the safety and good order of the community at large.

TRUTH.—I sow corn: partridges eat it, and if I attempt to defend it against the partridges, I am fined or sent to jail:‡[5] all this, for fear a great man, who is above sowing corn, should be in want of partridges.

The trade I was born to is overstocked: hands are wanting in another. If I offer to work at that other, I may be sent to jail for it. Why? Because I have not been working at it as an apprentice for seven years. What’s the consequence? That, as there is no work for me in my original trade, I must either come upon the parish or starve.

There is no employment for me in my own parish: there is abundance in the next. Yet if I offer to go there, I am driven away. Why? Because I might become unable to work one of these days, and so I must not work while I am able. I am thrown upon one parish now, for fear I should fall upon another, forty or fifty years hence. At this rate, how is work ever to get done? If a man is not poor, he won’t work: and if he is poor, the laws won’t let him. How then is it that so much is done as is done? As pockets are picked—by stealth, and because the law is so wicked that it is only here and there that a man can be found wicked enough to think of executing it.

Pray, Mr. Justice, how is the community you speak of the better for any of these restraints? and where is the necessity of them? and how is safety strengthened or good order benefited by them?

But these are three out of this thousand: not one of them exists in France.

Lawyers are very busy just now in prosecuting men for libels: these prosecutions I suppose are among the wholesome restraints Mr. Justice thinks so necessary for us. What neither Mr. Justice Ashhurst, nor Mr. Justice Anybody-else, has ever done, or ever will do, is to teach us how we are to know what is, from what is not, a libel. One thing they are all agreed in—at least all among them who have had any hand in making this part of the law—that if what they call a libel is all true, and can be proved to be so, instead of being the less, it is the more libellous. The heavier, too, the charge, of course the worse the libel: so that the more wickedly a judge or minister behaves, the surer he is of not hearing of it. This we get by leaving it to judges to make law, and of all things the law of libels. Protection for the thief: punishment for him who looks over the hedge.—Oh, my dear countrymen, I fear this paper is a sad libel, there is so much truth in it.

{235}I know of a young couple who had £28,000 between them, and who could not get married till they had given up £2700 of it: the lawyer’s bill for the writings came to that money. You, Mr. Justice Ashhurst, who know so well what is orderly and what disorderly, tell us which is most disorderly—truth, industry, or marriage?


—————

ASHHURST.—III. Happily for us, we are not bound by any laws but such as are ordained by the virtual consent of the whole kingdom.

TRUTH.—Virtual, Mr. Justice?—what does that mean? real or imaginary? By none, do you mean, but such as are ordained by the real consent of the whole kingdom? The whole kingdom knows the contrary. Is the consent, then, an imaginary one only? A fine thing indeed to boast of! "Happily for you," said Muley Ishmael once to the people of Morocco, "happily for you, you are bound by no laws but what have your virtual consent: for they are all made by your virtual representative, and I am he."

Look at this law, my friends, and you will soon see what share the consent of the whole kingdom has in the making of it. Half of it is called statute law, and is made by parliament: and how small a part of the whole kingdom has anything to do with choosing parliament, you all know. The other half is called common law, and is made—how do you think? By Mr. Justice Ashhurst and Co. without king, parliament, or people. A rare piece of work, is not it? You have seen a sample of it. I say, by the judges, and them only; by twelve of them, or by four of them, or by one of them, just as it happens: and you shall presently see how. This same law they vow and swear, one and all, from Coke to Blackstone, is the perfection of reason: the reason of which you are at no great loss to see. Their cant is, that they only declare it, they don’t make it. Not they? Who then? Not Parliament, for then it would be not common law, but statute.


—————

ASHHURST.—IV. Happily for us, we are not bound by any laws but such as every man has the means of knowing.

In other words:—

Every man has the means of knowing all the laws he is bound by.

TRUTH.—Scarce any man has the means of knowing a twentieth part of the laws he is bound by. Both sorts of law are kept most happily and carefully from the knowledge of the people: statute law by its shape and bulk; common law by its very essence. It is the {/} judges (as we have seen) 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 for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won’t tell a man beforehand what it is he should not do—they won’t so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it. What way, then, has any man of coming at this dog-law? Only by watching their proceedings: by observing in what cases they have hanged a man, in what cases they have sent him to jail, in what cases they have seized his goods, and so forth. These proceedings they won’t publish themselves, and if anybody else publishes them, it is what they call a contempt of court, and a man may be sent to jail for it.*[6]

If, then, you can be in the four Westminster Hall courts, and the twelve circuit courts, and a hundred other such places at once—if you can hear everything and forget nothing—if the whole kingdom can squeeze itself into a place contrived on purpose that it may hold none but lawyers—if it can live in those places for ever, and has always lived in them,—the "whole kingdom" may have that knowledge which Mr. Justice says it has of the law; and then it will have no further difficulty, than to guess what inference the judge or judges will make from all this knowledge in each case.

Counsellors, who have nothing better to do, watch these cases as well as they can, and set them down in their note-books, to make a trade of them; and so, if you want to know whether a bargain you want to make, for example, will stand good, you must go with a handful of guineas in your hand, and give half of them to an attorney, for him to give t’other half to a counsellor; and, when he has told you all is right, out comes a counsellor of the other side with a case of his own taking which his brother knew nothing of, which shows you were in the wrong box, and so you lose your money. Some of them, to drive a penny, run the risk of being sent to jail, and publish their note-books which they call reports. But this is as it happens, and a judge hears a case out of one of these report-books, or says it is good for nothing, and forbids it to be spoken of, as he pleases.

How should plain men know what is law, when judges cannot tell what it is themselves? More than a hundred years ago, Lord Chief-Justice Hale had the honesty to confess he could not so much as tell what theft was; which, however, did not prevent his {236} hanging men for theft.*[7] There was then no statute law to tell us what is, or what is not, theft; no more is there to this day: and so it is with murder and libel, and a thousand other things; particularly the things that are of the most importance.

"Miserable," says that great Lord Coke, "miserable is the slavery of that people among whom the law is either unsettled or unknown." Which, then, do you think is the sort of law, which the whole host of lawyers, from Coke himself down to Blackstone, have been trumpeting in preference? That very sort of bastard law I have been describing to you, which they themselves call the unwritten law, which is no more made than it is written—which has not so much as a shape to appear in—not so much as a word which anybody can say belongs to it—which is everywhere and no where—which come[s] from nobody, and is addressed to nobody—and which, so long as it is what it is, can never, by any possibility, be either known or settled.

How should lawyers be otherwise than fond of this brat of their own begetting? Or how should they bear to part with it? It carries in its hand a rule of wax, which they twist about as they please—a hook to lead the people by the nose, and a pair of sheers to fleece them with.

The French have had enough of this dog-law; they are turning it as fast as they can into statute law, that everybody may have a rule to go by: nor do they ever make a law without doing all they can think of to let every creature among them know of it. The French have done many abominable things, but is this one of them?

Have you a mind, my countrymen, to see two faces under one hood? Hear two juries charged—a grand jury, and a petty:—"Gentlemen of the Grand Jury! You and everybody may know what the law is if you please: you are bound by none that you have not the means of knowing."—"Gentlemen of the Petty Jury! The fact is all you ever have to do with: it is our business to say what the law is; for say what you will, it is impossible that you should know anything about the matter." This was the language of Mr. Justice and his brethren, till parliament, t’other day, in spite of their teeth, taught them a better lesson.—God bless the parliament!—No dog-law!—Parliament for ever!

Mind this teacher of "peace" and subordination: according to him, if there are any laws which are made otherwise than "with the consent of the whole kingdom," or, that "every man has not the means of knowing, we are not bound" by them. And this he calls a happiness for us.†[8] God ever keep us from {/} such happiness! Bad as the law is, and badly as it is made, it is the tie that holds society together. Were it ten times as bad, if possible, it would still be better than none: obey it we must, or everything we hold dear would be at end.

Obey it we must: but, to obey it, must we not know it? And shall they whose business it is to make and obey it, be suffered to keep it from us any longer?

Now I will tell you, my dear countrymen, what Mr. Justice knows better things than to tell you; how it is, that what he would make you believe about every man being his own lawyer might be made true. If what there is good of common law were turned into statute: if what is common in both to every class of persons were put into one great book (it need not be a very great one,) and what is particular to this and that class of persons were made into so many little books, so that every man should have what belongs to him apart, without being loaded with what does not belong to him. If the general law-book were read through in churches, and put into boys’ hands, and made into exercises when they are at school; and if every boy, when he came of age, were to produce a copy of it written with his own hand before he were allowed a vote or any other privilege; and if this general law-book contained a complete list of the particular ones, and measures were taken for putting them, and each of them, into each man’s hand, as soon as the occasion happened which gave him a concern in it.

But then the matter of these law-books must be made up into sentences of moderate length, such as men use in common conversation, and such as the laws are written in France, with no more words than necessary: not like the present statutes, in which I have seen a single sentence take up thirteen such pages as would fill a reasonable volume, and not finished after all: and which are suffered with repetitions and words that are of no use, that the lawyers who draw them may be the better paid for them. Just like their deeds, such as you may see in any attorney’s office, each filling from one to a hundred skins of parchment, long enough to reach the breadth or the length of Westminster Hall; all which stuff you must carry in your mind at once, if you would make head or tail of it, for it makes altogether but one sentence; so well do they understand the art of poisoning language in order to fleece their clients. All which deeds might be drawn, not only more intelligibly, but surer, in short sentences, and in a twentieth part of the room. A complete set of them might be adapted to all occasions to which there are any adapted of those at present in use, and would have been drawn years {237} ago, had there been any hope of seeing them made use of.

Now, God bless our good King George, preserve and purify the Parliament, keep us from French republicans and levellers, save what is worth saving, mend what wants mending, and deliver us out of the clutches of the harpies of the law!


—————

A Card to JOHN REEVES, Esq. Barrister at law, Chief-Justice of Upper Canada, Chairman of the Society calling itself "The Society for preserving Liberty and Property against Republicans and Levellers," held at the Crown and Anchor Tavern, in the Strand. Mr. Reeves says, he knows the English law, and that he knows the spirit of it. He has written the history of it in four volumes: he ought to know it; he ought to know whether what is here said of it is true: he knows this charge of Mr. Justice Ashhurst; he says, it "breathes the spirit of the English law." He ought to know this charge, and what spirit it breathes: he adopts it, he trumpets it, he circulates it. He says, it is suited to curb the licentious spirit of the times, and so well suited, that it must be read with heartfelt satisfaction by every true Englishman. What is thought suited to produce an effect, does not always produce it: in one instance, at least, this charge, instead of curbing, has had the effect of provoking a spirit, which it would be nothing wonderful if Mr. Reeves were to {/} deem licentious. Whether the spirit thus provoked has less in it of the spirit of a true Englishman, of a friend to subordination, as well as good government—to strict, as well as rational obedience, than the spirit of those who wrote, or those who answer for, and trumpet forth, this charge, the reader may determine. Mr. Reeves will see this comment on it; he will see whether there is any thing in this comment that he can controvert: if he can, and will, he who wrote it is ready to defend it, and if Mr. Reeves makes that a condition, to set his name to the defence. Mr. Reeves is, amongst other things, a judge, and receives money for administering justice to Canada. Instead of that, he stays at home, makes parties, and circulates papers that deny and protect the abuses of the law. How is this? Is it that justice is useless to Canada, or that Mr. Reeves is useless to justice?

London, December 17, 1792.


—————

NOTE AT THE CONCLUSION.

It is not altogether without compunction, that this conclusion is suffered to stand: so striking is the contrast, which, according to all accounts, the intrepidity and gentleness, manifested by this gentleman in the execution of a justly odious office, has since been seen forming, with the atrocity displayed in the creation and preservation of it. Next to the non-creation, or abolition, of the alien office, would have been the keeping the powers of it in the hands of Mr. Reeves.—August 27, 1823.


[NOTES: IN THE BOWRING TEXT, FOOTNOTES TO COLUMNS; NOTE NUMBERS ADDED HERE]
* [1] Davenant, quoted in Smith’s "Wealth of Nations."

[2] In France, no fees to judges, no selling of law-places. Is it not this, for one thing, makes lawyers so eager to support Ministers in their schemes for cutting the throats of the French?—the French, who, whatever mischief they have done to one another, have done none to us, but love and respect us.

*[3] Blackstone’s Commentaries, Introduction.

[4] The rule is, that every interrogatory must have a charge to support it, in which a man is obliged to assert, at random, whatever he wants to know.

[5] May now—1823—be transported.—Editor of original edition.

*[6] Burrows’ Reports, Preface.

*[7] Hale’s Pleas of the Crown: title Larceny.

[8] "Happily for us, we are not bound by any laws but such as are ordained by the virtual consent of the whole kingdom, and which every man has the means of knowing."—Ashhurst.