English law had become a mere jungle of unintelligible distinctions,contradictions,and cumbrous 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,(68)'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,'(69)and is scarcely less bad than 'priest-made religion.'(70)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.'(71)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 assailant.Bentham's diagnosis of the evil explains his later attitude.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.(72)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 classes had a common interest in multiplying suits and complicating procedure:and thus a tacit partnership had grown up which he describes as 'judge and Co.'He gives statistics showing that in the year 1797five 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.(73)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.'(74)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,'(75)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 hell,the Court of Chancery was hell.(76)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.'(77)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.(78)To attack legal abuses was to attack a class 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 class.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;(79)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.