Front Page Titles (by Subject) THE ELEMENTS of THE ART OF PACKING, as applied to SPECIAL JURIES, particularly IN CASES OF LIBEL LAW. - The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)
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THE ELEMENTS of THE ART OF PACKING, as applied to SPECIAL JURIES, particularly IN CASES OF LIBEL LAW. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 5.
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THE ELEMENTS of THE ART OF PACKING, as applied to SPECIAL JURIES, particularly IN CASES OF LIBEL LAW.
BENCHER OF LINCOLN’S INN.
FIRST PUBLISHED IN 1821.
ADVERTISEMENT TO THE FIRST EDITION.
This work was printed many years ago.
Circumstances prevented its being at that time exposed to sale.
In regard to the author, all that need be said is—that it was not by him that it was then kept back; and that it is not by him, or at his instance, that it is now put forth.
If, on either accounts, it were desirable that the causes of its being thus long withheld should be brought to view, those causes would afford a striking illustration of the baneful influence of the principles and practices it is employed in unveiling, and presenting in their true colours.
OCCASION OF THIS WORK.
Work on Libel Law commenced—Occasion of it.
What gave rise to this work is neither more nor less than a newspaper article—an article in the Times for the 20th of February 1809, and which, so far as it belongs to the present purpose, and consists of statements concerning matters of fact, is in these words:—
Speaking of a clamour against what is called the licentiousness of the press, the article goes on and says—“Such has been the dread inspired by this clamour, . . . . that of the persons now under prosecution, two have actually pleaded guilty to informations for ‘wilfully and maliciously slandering the British army,’ who never, till many days after their publication, saw or heard of the libel with which they were charged. . . . . . .
“The grand fountain of all this mischief,” it continues, “seems to be Major Hogan’s pamphlet . . . . .; for this very work there are now, or recently have been, we believe, six and twenty printers and publishers under prosecution. It was only from one of these that the original pamphlet sprung: the rest did no more than extract from or recommend it, and that upon the attested character of its author, who was no sooner known to have fled from his charge, than every one of them retracted his praise of the work, and was willing to maintain that the Duke of York’s character stood as fair as if this individual arraignment of it had not been published; yet is this so far from having produced a disposition to recede from punishing them, that though the informations were all of them filed last term, and might have been tried during the present, the objects of them are, without any assigned cause, to be kept in a harassing state of suspense over the present to the term ensuing.
“And what is the origin of these men’s offences? An error common to them with the prosecutor—a belief in the respectability of Major Hogan’s character, which was attested by no fewer or less men than Generals Fox, Floyd, Whyte, Dundas, Macdonald, Hall, Hay, Tilson, and Hamilton.
“Can there be a stronger palliation of error, than that the person erring should have been misled by a man of such reputation as the above; more especially when it is considered that the Duke of York was himself as much deceived as any one else by these testimonies in favour of Major Hogan? His Royal Highness, on the strength of them, believed him to be deserving of rank and elevation in the army, and therefore ‘noted him for promotion.’ Others, on the very same authority, supposed only that he might be entitled to common credit, and are, therefore, notwithstanding all their renunciations of that opinion, ‘noted for prosecution.’ ”
Thus far the newspaper. Facts, in their nature so notorious, seemed not likely to have been either invented, or so much as materially misrepresented. I looked out for contradiction or correction, but could hear of none. Whatever I could learn went in confirmation of the statements given as above.
On the subject of Libel Law, my general conception had been of some thirty or forty years’ standing: for example, that, in point of actual law, a libel is any paper in which he, who to the will adds the power of punishing for it, sees anything that he does not like: and, in point of public utility, that it was neither necessary nor fitting that any part of the rule of action, much less so important a one, should be lying in any such wild and barbarous state. Such on this subject became my opinion, almost as early as, on the subject of any part of the law, I could take upon me to have any: but those opinions would scarcely have found any expression, in public at least, and in any considerable detail, but for the incident above mentioned.
Seeing thus that, under the mask of a temporary occurrence, a battery had been opened by the enemies of the constitution upon the liberty of the press—that a fire of grape shot had already been commenced, and no fewer than six-and-twenty persons wounded by it at one discharge,—I felt myself urged by an irresistible impulse to summon up whatever strength I might have left; and howsoever impotent my own feeble efforts might prove, and at whatever personal hazard, to show the way at least how this battery might be spiked.
1. Libel law as it stands, or rather as it floats, is incompatible with English liberties.
2. To destroy them utterly, and reduce the government to a despotism, it requires nothing but to be consistently and completely executed.
3. In this state it must remain, until either the constitution is so destroyed, or, by authority of the legislature, certain arrangements are made, the basis of which will be a definition in form, of the sort of thing called a libel, or something that shall be equivalent to it.
4. In a fixation of this sort, though there is some difficulty, there is no natural impossibility.
5. It is from the hand of parliament alone that this crying evil can receive a radical cure.
6. But, in the intelligence and fortitude of a jury, it may, in each instance, receive a momentary palliative.
7. Things being on this footing, in the case of a political libel, and (to fix conception) in the case of a libel for which Mr. Cobbett was convicted, and Mr. Justice Johnson suffered, had I been upon the jury, I should not have regarded it as consistent with my oath and duty to join in a verdict of guilty.
8. Applying to this use the power which, under the law of primeval barbarism, any one determined juryman has of subduing the eleven others, I should have taken care that no such verdict should be found.
9. By a few successive exertions of such fortitude, not only momentary and partial relief against particular oppression would be afforded in each particular instance,—
10. But, by a gentle and truly constitutional pressure, measures of complete and permanent relief might, as from the unjust judge in the parable, be extorted from the legislature.
Such were the opinions, in support of which I was preparing to submit to the public the considerations by which they had been produced: when, by another incident, this design, though it received a confirmation, and that no slight one, received at the same time a collateral turn, and, as to this part of it, a temporary stoppage.
That Work why postponed to this.
“Jurymen—special jurymen—are the persons you propose to address. But, whatever you had to say, it being to this effect, is there any the least chance that they would listen to you? The men whom, under the name of jurymen, special jurymen, you would, on any such occasion, have to deal with—are they in fact what they are said to be, and in general supposed to be? On any occasion, such as that in question, are they really free to follow the dictates of their own judgment? Can you see any the smallest probability of their doing so?” Such were the questions suggested to me by the publication of the late sheriff, Sir Richard Phillips—a document which, though it had been for some time in circulation, had not, till a considerable progress had been made in my own above-mentioned work, happened to fall into my hands. Such were the questions; and, to my unspeakable astonishment, no sooner were they formed than they received, each of them, to my apprehension, a decided negative.
In common with the generality of my countrymen, no particular incident having ever happened to point my attention to the subject, I had been used to annex in my mind to the word jury, the idea of a momentarily assembled body of men, composed of members determined by lot, or if by a nomination, a nomination not differing in effect from determination by lot,—the nomination performed afresh for the purpose of each cause, the list of the members of which the body was composed in each cause, changing perpetually as between cause and cause.
In this particular I had indeed understood the term special jury to be expressive of some difference: but a difference by means of which, the advantage attached to a fortuitous assemblage being preserved, further advantage, resulting from a sort of reciprocal choice as between party and party, had, by the matured sagacity of modern times, been super-added.
In common with such others of my countrymen, whose education has conducted them through the ordinary paths of history, I had read of a species of judicial abuse, which, under the name of packing, had on this or that occasion broken out in former times, and in particular in the profligate and arbitrary reigns of the two last Stuarts.
My astonishment has not oftentimes been greater than it became, when, upon looking into the book for which, as above, the public is indebted to the late shrievalty of Sir Richard Phillips, I found that this practice called packing, a word which, when thus applied, had never presented itself to my mind but in the character of the denomination of a state crime—nor that exemplified but rarely, and under a disastrous state of things long since past—had been moulded into a system, had become an established practice—a sort of practice which by the quality of the practitioners has, as ship-money had once, acquired the force of law; and that in that character it had found, in the person of the chief judge of one of the three great common-law courts, not only an agent, perhaps an author to avow it, but moreover a champion to defend it.
For some time I could scarce give credit to my own eyes. Am I indeed awake?—is not this a dream?—What century is this?—can it be the 19th?—is it not the 17th?—Who reigns now?—can it be a Brunswick?—is it not a Stuart king come, according to the prophetic and once loyal hymn, “come to his own again?”
It is but too true. Under the name of a jury—under the name even of that supposed improved species of jury, a special jury—we have, in fact, avowedly, in that court in which most use is made of special juries, and at pleasure in the only other judicatory in the corruption of which the servants of the crown, and their adherents, can, as such, have any special interest—a standing body of assessors, instruments tenanted in common by the leading members of administration, by the judges, and by the other crown-lawyers—troops enlisted, trained, and paid by the crown-lawyers—liable to be cashiered, each of them, at any time, and without a word of explanation, each of them at the instance of any of the above indefinite multitude of inspectors, as well as by the hand of the recruiting officer who enlisted them, and they know not who besides—tools, in effect, of the very power to which in pretence and appearance they are a check.
Great would be the error, if it were supposed that, so far as concerns the security afforded by juries, the higher criminal cases excepted, we are, under this special jury system, no worse off than our ancestors were in the time of the two last Stuarts. Package of juries was in those times no more than an effort of casual violence and passion, losing more by the general irritation it produced, than by the particular advantage of the moment it could gain. It is now, as will be seen, become a regular, a quietly established, and quietly suffered system. Not only is the yoke already about our necks; but our necks are already fashioned to it.
As to the title of this work, Elements of the Art of Packing, it is not a mere jest. In the bringing of the system to its present state, no small degree of ingenuity, it will be seen, has been expended; nor, to the present purpose, could the true nature of it have been sufficiently displayed, without considerable labour—in short, without a pretty ample course of development—applied to its objects, its effects, its motives, and its means.
In bringing into view this sinister species of art, the object of these pages is—to do what may be found capable of being done, by an obscure individual, towards putting an end to the exercise of it: and the more thoroughly the processes employed in it are brought to light, the more imperious will the considerations be seen to be, which call for the abolition of it.
By the abolition of special juries, if complete, and in point of local range rendered co-extensive with the whole kingdom, a sort of gap might appear to be left in the system of jury trial: on what principles this gap may be most advantageously filled up, will be matter of inquiry at the conclusion of the work.
JURIES—THEIR USE AS A CHECK TO JUDGES.
Of the functions exercised by the body of unlearned assessors, termed jurors or jurymen, the original intention, as well as experienced use, seems to be universally agreed, as well as understood, to be—the serving as a check upon the power of the learned and experienced judge or judges, under whose direction, or guidance at least, they have to act. In name, the decision pronounced in each cause—that decision at least to which the name of verdict is given, and in which not only the question of fact is decided upon, but a decision on the question of law (except in the particular case of a special verdict) is involved, is ascribed to them, as if it were theirs alone: but, besides the power of sending the cause to a new trial before another jury, the effect of the power exercised by the professional judges is upon the whole so great, (the verdict having in no instance any effect until it be followed by a corresponding decision distinguished by the name of the judgment, the formation of which depends altogether on the professional part of the compound judicatory)—that a conception nearer to the truth will be formed, by considering the main or principal power as in the hands of the judge, that of the jury serving as a check to his power, than by considering the principal power in the hands of the jury, that of the judge serving as a check to theirs.
That, of the unlearned body so designed to operate as a check, the members ought, so far as concerns the exercise of the functions belonging to their body, to be in a state of independence—of independence as perfect as possible—is a proposition included in the very denomination of a check. To deny the truth of it, is to utter a contradiction in terms. To say that there ought not to be any such independence, is the same thing as to say that there ought not to be any such check.
In appearance, this sort of independence is, in modern practice, everywhere, in every part of the field of jury-trial, actually preserved. That which, on the occasion of each trial, the judge or judges, who constitute the professional part of the mixt judicatory, have power—say, for shortness, the judge has power—to do, is to compel the non-professional part, the jury, to pronounce a decision, termed its verdict: that which he has not the power to do, is to determine what that verdict shall be.
Great, however, as is the power of the judge, in every case, over the ultimate result of the cause, yet, so far as concerns the decision pronounced, or supposed to be pronounced, by the jury, it applies more directly and certainly to the prevention of a verdict contrary to his wishes,* than to the obtaining at their hands a verdict conformable to his wishes.
When, therefore, in pursuance of a sinister interest, in whatsoever bosom it may have happened to it to originate,—his own, for example, that of the king, or that of any servant of the king’s in any other department of the state, it has come to be an object with a judge to obtain at the hands of a jury a verdict in any way contrary to justice, a necessary endeavour has been to obtain a jury, so composed, as that the verdict pronounced by them may be depended upon as about to be conformable to his wishes: to give, in a word, to the judgment, which he has it in his wish and intention to pronounce, the appearance of being the proper and necessary result of an antecedent decision, which, under the appropriate name of a verdict, the jury have, by the mouth of their foreman, pronounced, or at least been considered as having pronounced.
If, in consequence of any sinister influence exercised over their faculties by the judge, a verdict, different from what would otherwise have been pronounced by them, has been pronounced, that influence will have assumed a very different character, and have been produced by causes of a very different description, according as it is to the understanding or the will that in each bosom it has applied itself.
To the understanding of a juryman, as of any other man, though influences, which, being unfavourable to justice, may be termed sinister, are liable to apply themselves from other quarters, yet so far as it has happened to any such influence to have been applied by any act of the judge, it is only by his understanding—by the application of his relatively stronger understanding to their relatively weaker understandings, that it can have been applied: in a word, it can only have been the influence of understanding on, or over, understanding.
When it is to the will of the juryman that any sinister influence acting in a sinister direction has been applied by the judge, it is by the will of the judge that it has been applied: it has been the influence of will on, or over, will.
In so far as the prescriptions of duty, the dictates of probity, are taken by the juryman for the rule of his conduct, no other will is by his will suffered to exercise any influence on it: his will takes for its guidance the dictates of understanding purely: of his own understanding, if it feels itself strong enough: if not, of some other understanding, on the relative strength of which (relation being had to the question in hand) its reliance is more assured.
To the dictates, therefore, of any other will, the will of a juryman, as of any other judge (the lawfully declared will of some lawful superior alone excepted, for which, in the case of the juryman, there is no place,) cannot so much as listen, but at the expense of probity. From whatsoever source it happens to it to flow—whether from the will of the judge, or any other will—the influence, or, as in this case it is styled, the temptation, to the assaults of which the probity of the individual (in the present case the juryman) stands exposed, will apply itself in one or other of two shapes: in the shape of evil, viz. ill-applied punishment, working by intimidation; in the shape of good, viz. ill-applied reward, working by corruption.
Against these two opposite dangers, provision was made in the principles which presided over the original organization and mode of procedure that took place in the case of these singularly-constituted judicatories, or rather component parts of judicatories.
Against undue intimidation, they received for their protection, in the first place, exemption from any infliction which, avowedly and under the name of punishment, might otherwise have been applied to any of them separately* by the arbitrary power of the judge; in the next place (being that without which the other would have been of little value,) the veil of secresy, to preserve to them, during their conferences, the faculty, and (to render it more effectual) the obligation, of keeping themselves during their conferences, out of the reach of his observation: and not of his only, but of that of all other men, and especially all other men in power, in whose enmity they might be apt to behold a source of danger.
Against corruption, the principle employed was that of continual change: no person being continued in the exercise of that function for any length of time: that so neither the seductive artifices of the judge, their natural tempter, who in their power had before his eyes a force constantly antagonizing with his own, might have time to mould into undue obsequiousness the weakness of their minds; nor the casual tempter—the party who, in the event of his obtaining anywhere a sufficiently steady view of a future juryman, against whose probity his operations might be directed with a sufficient prospect of success, might find himself disposed to apply the opportunity to any such sinister use.
THE CHECK HOW DONE AWAY BY INFLUENCE.
Checks are ever odious to all persons checked.
To the welfare of the governed—of men considered as men subject to power—it is highly conducive at least, if not (as under the British and other mixed or limited governments, men are apt to say) altogether necessary, that in whatsoever hands power be lodged, checks to it, in some shape or other, should, throughout the whole field of its exercise, be applying themselves: and upon the supposition that the good which, in the shape of security against misrule, is thus produced by the check, is not exceeded by the evil produced by the defalcation made by it from the quantity of power necessary to enable the holder of the power to render, in the highest degree of perfection, the service expected at his hands, the utility of the check will hardly find any person to dispute it.
But whatsoever be their utility, relation being had to the interests of the people considered as subject to power: to the hands by which the power is holden, the sensation produced by anything which acts upon them in the character of a check, never has been, nor ever can be, otherwise than unpleasant.
How it happened that, in England, the operations of the king’s ever dependent instruments, the official judges (not to speak of the equally dependent instruments of his imperfectly subjected subordinates, the great barons) found themselves, in the infancy of the constitution, incumbered, and to so great an extent, by the presence and interference of a determinate number of unofficial assessors, still more ignorant than themselves; while, in the other part of the same island, the incumbrance was confined to the criminal division of the field of law, and even there to the upper parts of the ground; and while, on the continent, either no such incumbrance was ever known, or was at a very early period got rid of; these are among those points of legal history, the obscurity of which seems to have given them up beyond redemption to the arbitrary dominion of conjecture.
Thus much however appears with tolerable distinctness; viz. that, over a great part, if not the whole of that field, over which the jurisdiction of a limited and even fixt number of assessors, under the denomination of jurymen (petty jurymen,) extends itself, the sort of function now exercised by them was exercised by an unlimited and usually much larger number of the inhabitants of the district in question under the name of freeholders: by which denomination were distinguished the whole of that comparatively small number of persons whose interests, according to the notions moral and legal of that time, had any claim to notice: and that, of this larger and imperfectly determinate body, the part now called a jury, was a sort of select committee, gradually and by general consent, the result of general convenience, substituted to the ever fluctuating and unwieldy whole.
But though, in one shape or other, the incumbrance has, from the earliest days of the existing constitution, been clinging to the shoulders of the official judge, yet, in whatsoever shape it clung, it could not have been otherwise than a troublesome one.
To the free exercise of his power the obstruction given by it is sufficiently obvious: for, so often, and in such proportion, as he found it necessary to give effect to a will on their part, which, howsoever expressed, differed ultimately from his own wishes, so often, and in the same proportion, was his power converted into impotence.
Supposing even his will to have been in every instance ultimately and completely prevalent, and, not withstanding the incumbrance, his power thus far unimpaired, even thus, on comparing his situation with that of a judge the freedom of whose actions is unrestrained by any such incumbrance, it will be manifest enough, that though his power were ever so entire, one effect, inseparably attached to the nature of this incumbrance, is—to afford, in one way or other, perpetual disturbance to his ease. All their desire is to shape their wills to his, and for that purpose to know what it is. Be it so. Yet to this purpose it may be necessary for him to make them know what it is; and simple as it may be, to impress into their minds this article of knowledge will, every now and then, require on his part, one of those operations which cannot always be performed without more or less disturbance to the operator’s ease.
On the other hand, suppose on their parts any reluctance towards the adoption of his will, argument, in some shape or other, would on his part be necessary to the surmounting of that reluctance; and so much argument, so much time and trouble consumed, so much disturbance given to his ease. Let there even be no reluctance opposed to his will, yet, if in their conceptions there should be any difficulty in comprehending it, still, to the removing or endeavouring to remove any such difficulty, explanation, in some shape or other, would be necessary: more consumption of time and trouble; more disturbance given to ease.
But to a man in power, it neither then was, nor to this time is, no, nor ever will be, natural to submit readily to any such limitation to his power as he can commodiously get rid of: it neither then was, now is, nor ever will be, natural to him, to suffer his own ease to remain exposed to any disturbance, from which he can conveniently keep it clear. To keep it to a certain degree habitually clear of disturbance, may, from time to time, cost him more and more labour, giving to his ease more and more disturbance. But, be his expectations of neat profit, in that valuable shape, verified, or not, by the event, his exertions will not the less truly have had for their motive, the love of ease.
On both these accounts, therefore, and in whichever of the two shapes he found the weight of this body of assessors pressing upon him, the endeavours of the judge to shake off or lighten the incumbrance cannot but have been coeval with its existence.
In the character of a sinister motive, becoming, in the bosom of the judge, an efficient cause of injustice, the love of ease seems hitherto to have almost escaped notice. But it has not been the less efficient; and of its efficiency exemplification but too extensive will meet us as we advance.
Judges’ Defences against Checks—Corruption and Deception.
Henceforward let us suppose the use of juries firmly established: and of the part originally acted by the promiscuous assembly to which this select committee succeeded, all distinct remembrance, as well as desire, obliterated: obliterated by this primæval Grenville act, of which the record is no where to be found.
For securing on the part of this select body of assessors, whose office was to keep a check upon his will, a subservience as constant and prompt as possible to that will, thereby impairing as far as possible the use and efficacy of that check, three possible instruments, as above brought to view, were afforded by the nature of the case: viz. intimidation, corruption, and deception: for such is the name that may with propriety be given to the influence of understanding over understanding, as often, and in proportion as the exercise of it is recognised as operating to the prejudice of justice.
As to intimidation, in the character of an instrument of influence applicable to the purpose here in question, it must, from the very first, have been too plainly incompatible with the acknowledged constitution of this compound judicatory, and too insupportable to the feelings of the people, to be in anything like constant or even frequent use.*
Of punishment applied to this sinister purpose by the sole power of the judge, in the shape of pecuniary fine for instance, examples seem to have been not altogether wanting. But, forasmuch as such a practice could not have been permanently established, without the utter destruction of the power of juries, the existence of that power is a sufficient proof, that of that suffering, though applied under the name of punishment, and by judicial hands, the infliction could never have been considered in any other light than that of a casual act, committed under the spur of extraordinary irritation, by illegal violence.†
Corruption, the work of will operating upon will, and deception, operating by the influence of understanding over understanding, were therefore the only instruments affording any promise of being regularly and steadily applicable to this sinister service: viz. the securing of undue obsequiousness on the part of juries.
Corruption—Modes of applying it.
In regard to corruption, the standing problem was, and is, so to order matters, that, on each given occasion in which it may happen to the judge to take on any account an interest in the verdict of the jury, it shall depend upon his will, with the surest effect, and with the least trouble possible, to mould it to his own desire.
To this purpose, on the occasion of each verdict, the concurrence of two circumstances was, and is, necessary:—1. That, in the event of their finding themselves in the situation requisite (viz. that of inhabitants of a jury-box) there should exist a sufficient number of persons disposed, no matter by what causes, to manifest the sort of obsequiousness requisite; 2. That matters should so have been ordered, that in that requisite situation the persons so disposed should in each instance be to be found.
There are two courses or orders of proceeding, in either of which this supposed unjust, but supposed desired result is capable of being produced:—1. Finding out persons in whose instance the requisite disposition is already formed, and thereupon placing them in the situation requisite; 2. Going to work with a set of persons already stationed in the situation requisite, and to the persons, so situated, giving the disposition requisite.
The first of these two courses is that which, having been invented in the time of our ancestors, in a somewhat distant age, has from them received the name of packing:—a name which, from the application at that time but too frequently made of the practice, and thence habitually apprehended from it, has acquired a dyslogistic tinge: serving at present to express, not merely the practice itself, but the sentiment of disapprobation excited by the idea of it, and thus, by the principle of association, attached to it.
Of the two courses, this ancient one is evidently by far the most simple.
In the other may be seen an example of a degree of refinement reserved for modern times:—“A number of persons whose dispositions, in regard to the subject in question, are as yet unformed or unknown, being collected—required to generate in their breasts the disposition requisite.” Such is the problem, the solution of which was necessary to the pursuing of this second of the two courses. And, with what success it has been accomplished, will ere long, it is supposed, be not indistinctly visible.
For this purpose, the following process stands alike approved by theory and experience:—
Into the situation in question (it being a situation conferring power—legal power) cause to be placed the number of persons requisite (they being provided with the requisite legal qualifications)—you possessing in your hands, to a certain extent, the faculty of influencing their interest or welfare (that is, producing in their respective bosoms the sensation of pain or pleasure, or the eventual absence of either)—and no preponderant force acting on the same bosoms in an opposite direction: these things being done, the exercise of that power is thereafter at your command: and this, whatsoever be the name given to the act of power so exercised—such as verdict, judgment, decree, sentence, vote, resolution, statute, law.
In the science of psychological or moral dynamics, of which political is one branch, the above proposition, though never yet perhaps reduced to any scientific form of words, may be stated as a fundamental axiom: and among public men, under whatsoever degree of incapacity labouring in other respects, no man was ever yet found to any such degree weak and incapable, as not to be sufficiently sensible of the truth of it.
A man may receive his ten, twenty, thirty, any number of thousand pounds a-year, on pretence of his occupying a writing clerk’s place, and this without being any more able than he is willing to do the duties of that place—and yet be no less fully and adequately impressed with the truth of the above proposition, long-winded as it is, than Bacon was, and accordingly not only act, but get up and speak, according to his mode of speaking, in exact conformity and consequence: the orator, without parade or pedantic display of hardworded science, acting psychological dynamics all the while, and to no less perfection, nor, if told of it, less perhaps to his surprise, than Monsieur Jourdan, when upon being thereof informed by his preceptor, he found himself talking prose.
For effecting the solution in question by the application of the above axiom or rule, the simplest and most elegant of all modes which hath as yet been invented—perhaps it may be added, which the science itself admits of—is—that which you are enabled to put in practice, when the functions attached to the situation being, by a mass composed of the matter of wealth or other objects of desire (instruments or efficient cause of pleasure of any sort at command, according to each man’s taste,) worked up into a compound of an agreeable flavour, the continuance of the person in question in the situation which enables him to feed upon it, has been made dependent on your will. So long as he continues in the situation, with such his allowance in his hand, he will continue to feed upon it in his heart—if not with thanksgiving for having been put into the situation—at any rate, what is most to the purpose, with fear of being put out of it, in the event of his comporting himself otherwise than as expected.
Suppose, for example, the situation of a juryman thus at the same time dulcified, and (saving dismissal) fixed: the power of dismissal, howsoever disguised (and the more effectually disguised the better,) being at the same time in your hands: upon the very face of this statement it is evident, that (barring the accident of opposite and preponderant force as above mentioned) the verdict of the jury, so far as depends upon that juryman, is altogether at your command.*
In this mode of solution, a necessary step, we see, is the placing the person in question in a situation in which he is exposed to the action of the efficient cause of influence: viz. the matter, the ever pliant and ductile matter, which, in your plastic hands, becomes the matter of reward or the matter of punishment, according as he behaves himself. But, to the situation, as above described, permanence is necessary: and this—partly because without a certain degree of permanence, the situation would not possess sufficient value, nor consequently the fear of losing it act on his mind in the character of an efficient cause of influence with a sufficient degree of force: partly because the correspondent disposition—viz. a disposition duly prepared to yield to the influence—the obsequiousness, in a word—may not always be capable of being produced in an instant, as in the case of casting or stamping, but may now and then require some length of time for the production of it, as in the case of modelling or sculpture.
Here then we see the difference between the ancient and the modern contrivance for nullifying checks, and producing acceptable verdicts. In the ancient mode, it was necessary that, in the instance of each juryman, the disposition to obsequiousness should be ready formed. On the other hand, wherever this condition could be, and was fulfilled, the business was the work but of an instant, nor was any application of influence necessary to the accomplishment of it: in the modern mode it is not necessary, that the disposition to obsequiousness should, in the first instance, be already, as in the ancient mode, completely formed: nor even that, at that period, it should, in any degree, have existence; but what is necessary is, on the part of the situation in question, a considerable degree of permanence: understand always eventual and defeasible permanence.
The two modes stand thus distinguished by the two different principles, on which their efficiency respectively depend:—the ancient mode, by the principle of choice—of selection—or, to call it by its established and proper name, the principle of package—simple package—package toties quoties, and without need of permanence:—the modern mode, by the principle of permanence:—thence package, once for all, and with the benefit of permanence.
In the last preceding chapter, mention was made of the principle of mutation, or continual change of persons, as one of the expedients employed in the original constitution of juries, for enabling them to act with effect in the character in which they were destined to act, viz. that of a check upon the power of the judge; and, in that view, for securing them against any sinister influence by which the efficiency of the check, so to be applied, might come to be impaired. The principle there mentioned, under the name of the principle of permanence, consists exactly, we see, in the absence or removal of that tutelary and fundamental principle.
The principle of permanence being thus palpably opposite to one of the essential and acknowldged principles of jury trial, to have established it directly and avowedly would have been plainly impracticable. For each court, for instance, a determinate number of jurymen, consisting of the number (twelve) necessary to compose a jury, with or without a few supernumeraries, added for provision against accidents—to each juryman his situation, whether by salary or fees, rendered a desirable one—he, at the same time, pronounced removeable—avowedly removeable—at the pleasure of the judge or some other dependent of the crown;—on any such plan, even in the most uninformed and incurious age, the continuing to the institution the name of jury would scarcely have sufficed to reconcile men to an arrangement so palpably perverse—thus destructive of its manifest and manifestly intended nature.
When a determination to subvert, as far as it might be found practicable and convenient, this part of the constitution, had been taken, whatsoever were the contrivance employed, it was seen to be altogether necessary there should be some disguise or other put upon it. The business was neither to be attempted openly, nor all at once.
Four distinguishable conditions were seen to be necessary:—1. Power of nomination virtually in the hands of the judge; 2. Emolument, sufficient in magnitude, and thence in ordinary duration, to render the situation an agreeable one, and thence the loss of it an object of apprehension; 3. Power of amotion, viz. of removing a man from that situation, also virtually in the hands of the judge; 4. In each case, the design so enveloped, as not to be seen through. All these points were accordingly accomplished.
One point more required to be attended to. To have attempted to apply any such plan of deceit to all cases, and all at once, would have been incompatible with the success of it:—for, the effect being produced in every instance, the efficient principles would have burst through the disguise.
Applied to all cases in which it was likely that the judge, or any of the servants of the crown, his confederates, would have any special interest, it would be sufficient to their purpose. To the object thus limited, the plan was accordingly confined: and thus far it has been accordingly found to be but too practicable to carry the design into effect, and without prejudice to the disguise.
Of all these several desiderata, the accomplishment will now be brought to view, as having been effected in and by the constitution of the sort of body termed a special jury: but, for the purpose of this exhibition, a separate chapter will be requisite.
Compared with that mode, in which the principle employed is no other than that of simple package, nobody, it is supposed, can be at a loss to see how prodigious the advantage is which is gained by calling in the principle of permanence. In the way of simple package, extempore package, everything requires to be done afresh each time: each time you have to hunt out for your men: and whereabouts are you, if so it be that at the moment none that will suit you are to be found?
Apply the principle of permanence, there they are—your men—always at hand: and the longer you have had them where they are, the surer of them, on each occasion, you may be.
Juries, packed in the old mode, are like wood-pigeons, for which the woods must be hunted ere they be in a state of requisition for the cook; or like those wild horses which a Spanish Creole has to scamper after in the plains ere he is in readiness to take his ride. Juries packed in what will be seen to be the new mode, packed with the advantage of the principle of permanence, are like pigeons taken out of a dove-house, or like those well-broken geldings which an Englishman keeps in his stable.
In juries, in a word, permanence is exactly what it is in armies: it is the work of the same policy in both cases. It was, when as yet there were no standing armies, that the coarse and precarious operation of extempore package, packing without the aid of permanence, was employed in the case of juries. As our armies acquired their stability, so did our juries: and now that, under the pressure of national necessity, our armies, strengthened by that principle, have swelled to so unexampled a magnitude; now it is, as will be seen, that without any such necessity, without any other more cogent cause than convenience, numbers in juries not being susceptible of increase, this part of the establishment has received its improvement, and that to the degree of perfection that will be seen in the shape of permanence: say permanence, but never without remembering the increased facilities it affords for package.
Convenience, and nothing more. But what more was needful? For it was the convenience, as we shall see, of great characters, in those high situations, in which, in the convenience of the individual, there is apt to be more of cogency than in the necessity of nations.
At the outset, packing having been practised, when as yet there was in juries no such thing as permanence, the principle of package came unavoidably to be spoken of antecedently, and thus far in contradistinction to the principle of permanence. But now, at this stage of the inquiry, it will be sufficiently apparent (it is hoped) that of these two principles one is included in the other: and that, by the principle of permanence as applied to juries, is to be understood permanence and package together: package with the benefit of permanence, and permanence for the purpose of package.
Deception—Modes of applying it—Instruments for the application of it.
Corruption being the instrument principally employed on the occasion which gave rise to this little treatise, deception, an instrument not more in use on this occasion than on any other; and the part here played by it no more than a subordinate one—a very slight mention of it will be sufficient here. Not that the mention of it will even here be altogether out of place, corruption having among its effects that of disposing a man not only to deceive others, but, moreover in the first place, and for the better quieting of his own conscience, to deceive himself.
On the present occasion, so far as deception is concerned, the problem stands thus:—In cases where, if the conception entertained of the case by the jury were adequate, viz. complete and correct, their will, as declared by their verdict, would be more or less apt to run counter to the will of the judge, so to order matters, as that, by means of some want of completeness or correctness, viz. on the part of the conception entertained by them of that case, it may happen to their will to coincide with that of the judge.
There are two ways, in either of which an effect thus desirable may be brought about:
One is, by causing them to have a will, and that will exactly the same with that of the judge.
The other is, by causing them not to have a will, viz. of their own forming: of which state of mind the necessary consequence will be their adopting, without more ado, whatsoever will may come to be presented to them for that purpose by the judge.
Of these two modes, this latter mode is by far the most advantageous one. To the success of the former, the creative or special, it is necessary that fresh labour should be bestowed upon the subject on the occasion of every cause: by the other, the preventive or general mode, the business is done once for all; and, without any fresh expense in the article of labour, a perpetually renewed harvest of success is reaped on the occasion of each individual cause: in the one case, the business is carried on in the retail, in the other, in the wholesale line.
In the case of corruption, the will of the party corrupted—here the jury—being formed by the will of the party by whom or for whose benefit the matter of corruption is applied; the state of the intellectual faculty is immaterial, nor is any sort of debility in it necessary to the production of the effect here supposed to be desired.
But where, in a question of fact or law, a will of his own is to be formed by a man, who having no natural interest at all in the business, has no interest at all in it, unless by means of corruption he has a factitious one, he cannot have a will, other than one to the formation of which the use of the understanding is necessary: and thus it is, that, if so it be that his own understanding is not, with relation to the matter in hand, in a state fit for use, that is, capable of being applied to use, he is not only content but glad to borrow one of the judge, whose care it is that, under the cover of an act of the understanding, a will of his own, more or less nicely folded up, shall be inclosed.
By the understanding of a person placed in the situation of judge, an influence will, of course, be exercised over the understanding of every person standing in any such situation as that of juryman: and this influence being on all occasions applicable to all purposes good and bad, is thereby applicable to all bad ones.
On this occasion, the part which is open for deception to act is the giving to this influence a degree of strength beyond what properly belongs to it—such a degree of strength as will enable it, upon occasion, on the spur of sinister interest or passion, to act with advantage in a direction opposite to that of the dictates of justice.
In another work (Scotch Reform, Letter I.) it has already been shown how completely opposite the interest of all judges, commonly called by that name, as well as of all other men of law, has, throughout their whole field of action, all along been, and still continues to be, to the duty of judges, which is as much as to say to the interest of the people, in respect of the ends of justice: not only this fact, but the cause of it, viz. an ill-chosen mode of remuneration, has in that same work been already brought to view. Of this opposition the cause and influence having as yet in a very small, if in any degree been understood, the whole course of action of these functionaries has consequently been a course of deception: of deception practised throughout that whole course of action, on all sorts of occasions, and upon all sorts of persons: upon individuals at large, in their character of suitors: upon jurors, in particular, in their character of jurors.
Of the two modes of deception, special and general, the general has already been shown to be in every respect by far the most convenient with reference to the present purpose. The general consists in forcing the people with whom you have to do, to borrow your understanding, and under the cover of it, your will, by preventing them from having any understanding fit for use, and thence from having any will applicable to the purpose.
On this occasion the system of deception divides itself into two branches—the first consists in rendering the subject—whatever it be, law, religion, anything—in the present instance law, as incomprehensible, or (what is the perfection of incomprehensibility) as uncognoscible as possible to all whom you have to deal with, and that to their own conviction and satisfaction.
The other consists in doing whatsoever the nature of the case admits of, towards raising in their minds, to as high a pitch as possible, the estimate formed by them respectively of the correctness and completeness of the knowledge possessed by yourself in relation to the same subject.
To the first end contribute, jargon, nonsense, absurdity, surplusage, needless complication, falsehood—every kind of intellectual nuisance, in every imaginable form: and this the higher in degree and greater in quantity the better, without any other restriction than what may be imposed by whatever caution may be necessary to enable you to avoid counteracting the other object last above mentioned.
Of these two branches of the art of deception, the first-mentioned may be termed the depressive or humiliative; the other the self-exaltative.
The instruments applying or applicable to the purpose of deception, as above distinguished, may be the more readily comprehended by being distinguished into two classes. Those of the one may be termed the incorporeal instruments of deception: and though, upon a principle of division and nomenclature already attached to the subject, a complete enumeration of them would perhaps be scarce practicable, a tolerably sufficient sample of them has just been given; viz. in the words jargon, nonsense, absurdity, and so forth.
For the designation of the instruments of the other class of these instruments, the term corporeal will of course present itself to the mind of every man who has read Blackstone.
Under the class of corporeal instruments may be comprehended, besides the posts or other uprights by which the level of the bench is elevated above that of the jury-box, the peculiar habiliments by which the profession and the office together stand distinguished: outward and visible signs of the inward and invisible graces and virtues, intellectual and moral, that dwell within. These last, in consideration of the incalculable influence which they are found to exert on the understanding of jurors and others, through the medium of the imagination, may be moreover termed instruments of fascination: and as, among heathen statuaries, the circumstance of a man’s having officiated with his own hands in the character of his own god-maker was not found to diminish his devotion towards such his god, so if, among the inhabitants of the same jury-box, it should happen to the makers of the several instruments of fascination, viz. the furrier, the tailor, and the peruke-maker, to find themselves assembled and met together, there seems no reason to suppose that, upon the minds of these several manufacturers, the influence of the several articles, in the character of instruments of fascination, would be less efficient than upon those of the other “good men and true,” their colleagues.
Of these corporeal instruments the importance is the greater, inasmuch as but for them, and the fascination produced by them, it seems not altogether easy to conceive how the first branch of the art should have been compatible with the second, and how the stock of jargon, nonsense, absurdity, and so forth, how abundant soever, should have been conducive to, or even compatible with, the design of raising, in the minds of the persons concerned, the idea of the stock of real knowledge possessed by those exalted characters by whom these incorporeal instruments of deception have ever been so liberally employed.
Both sorts of instruments, incorporeal as well as corporeal, may moreover, if not in a strictly legal sense, as savouring rather of the personalty than the realty, yet at any rate, to a common intent, be styled and entitled hereditaments.
In relation to the corporeal hereditaments, the instruments of fascination, two things ought, notwithstanding, to be observed: one is, that the fascination performed is performed by the intrinsic and independent virtue of the instruments themselves, and that to the bearer, nothing being on his part performed, or necessary to be performed, towards and in relation to the effect, no part of the effect ought to be ascribed or imputed: the other is, that were it not for the evil company they are connected with, viz. that of the incorporeal instruments above mentioned, and the evil purposes to which the whole company are so unhappily apt to be applied, the influence of these corporeal instruments, notwithstanding the name of fascination so incontestibly belonging to it, might well be salutary and beneficial upon the whole. It is only by the abuse, in so far as abuse is made of them, that they operate in the character of instruments of deception—the character in which they belong to the present purpose: and if these corporeal were separated from the incorporeal instruments and hereditaments above mentioned, viz. the jargon, nonsense, and so forth, the abuse of the corporeal ones would be separated from the use.
Of these several instruments of influence, to whatsoever purpose applied, that of deception or any other, the efficiency in that character will (it may be said) naturally be the same—nearly if not exactly the same, whether, in the constitution of the jury in question, the principle of permanence be or be not employed.
This may be admitted. One means of influence, however, there remains, coming under the head of influence of understanding on understanding, which is applicable with peculiar advantage to the purpose of deception, and which requires, as a necessary condition to its application, the application of the principle of permanence.
When the judge and the jurymen become acquainted with each others’ persons, being in a state of habitual intercourse, a sort of connexion, though it be but in the way of sympathy, grows up between them: a friendship which, though it be of that kind which has been called a friendship of inequality, a friendship betwixt the superior and the inferior, betwixt wisdom and simplicity, is not, to this purpose at least, the less powerful and effective. A look of complacency, indicative of old acquaintance and mutual good understanding, descending, if ever the dignity of the judge finds itself reduced to descend to such benignity, from the heights of the bench upon the leading man in the jury-box, the bellwether is gained—the flock follow of course. A sort of compact forms itself, under and in virtue of which the man of learning engages to afford direction, the child of simplicity to follow it: this compact once formed, the presumption, which on any particular occasion should presume to think and act for itself, would be an act not only of temerity, but of revolt and perfidy.
SPECIAL JURIES, A SPECIAL ENGINE OF CORRUPTION.
The System briefly stated.
We have seen what expedients the nature of the case affords, for moulding juries into obsequiousness, principally by means of corruption: and thus divesting, as much as may be, of all reality, the appearance which they exhibit of a check to the arbitrary power of the judge.
We now come to speak of the instrument or engine, contrived for that purpose; applied to it, and to this day continuing to be applied to it, and with what disastrous success will be seen as we advance. This engine, in no small degree a complicated one, is no other than the sort of jury termed a special jury.
A special jury is so termed to distinguish it from a common jury: this last name being reserved for the designation of the only sort of jury which, till the invention of this special instrument of corruption, was in existence.
Above has been brought to view, in the character of a possible one, an arrangement, by means of which (bating such rare and casual exceptions as are liable to be now and then produced by the irregularities of the human mind) a body of men, be they who they may, may be brought into a state of constant and complete obsequiousness to the will of some person or persons (in the present instance the judge,) between whom and them the requisite sort of relation has, in the manner there indicated, been established. In the case of a special jury, this possible arrangement will be found to have been, and to remain to this day, completely realized.
As of the true and original jury, so of this impostrous modern substitute, the origin lies buried in obscurity. Human craft in every shape, and, in particular, in the shape of lawyer-craft—human-craft, like the mole, hides its ways from the light of day, and, as completely as possible, from human eyes.
The clearest view, as far as it goes, that we possess of this sort of jury, is that which is afforded to us by the statute-book: and, in the statute-book, antecedently to the year 1730, being the third year of the last reign, no mention of it is to be found. In a statute passed in that year (3 Geo. II. c. 25) the sort of jury in question is spoken of, in the way of reference, as a sort of tribunal actually in use:—finding it already in existence, all that the statute does with it is to regulate it.
In the way of amendment, this act was, in the course of the same reign, followed by four others or parts of others: viz. 4 Geo. II. c. 7, 6 Geo. II. c. 37; making perpetual 3 Geo. II. c. 25; 24 Geo. II. c. 18; 29 Geo. II. c. 19.*†
In each judicatory (viz. in each of the three Westminster-hall jury-trial courts—King’s Bench, Common Pleas, and Exchequer,) in the hands of an officer of the court, the righthand man and dependent of the chief judge,‡ this cluster of acts (to consider them together) found the effective nomination of these assessors, by whose power that of the judge was in appearance to continue checked. Such are the hands in which King, Lords, and Commons found the faculty of reducing to a shadow the controul supposed to be exercised by a jury: and in the same hands, under the direction of their learned and essentially treacherous guides, in these same hands it has been left.
In the hands of the agents of the parties, in crown causes, the solicitor of the crown, acting under the direction of other servants of the crown, his superiors, they found the faculty, and the practice, of giving to each special juryman a fee, to an amount altogether unlimited: whether it was or was not in their practice, or in their power, to keep back the fee, till after he had earnt it to their satisfaction, does not appear.
In one of these acts (24 Geo. II. c. 18, sec. 2,) reciting that “complaints are frequently made of the great and extravagant fees paid to jurymen under the authority of the said recited acts,” parliament did indeed attempt to limit this fee, viz. to the sum of a guinea: but with how little success may in due season be observed. (Part III. ch. 2,) This guinea, however, was not merely a guinea for each day of service, but a guinea for each cause tried in the compass of that day: and to the number of such causes there was no certain limit: nor therefore to the number of daily guineas.*
The Corruption briefly indicated.
Such, so far as could be exhibited by a rough outline, and upon a small scale, was and is the actual state of practice. Now, in respect of such matters as influence, corruption, and obsequiousness, let us, upon the same scale, observe the fruits and consequences.
By means of the magnitude of the fee, and the situation of the hands, on which, on the occasion of each individual cause, it was thus made to depend by what individuals this mass of emolument should be received, a regular corps had thus gradually and secretly been established—the members nominated in all cases by the dependent of the judge; that is, in effect, by the judge himself—paid in private causes by individuals, but in crown causes by the servants of the crown: a body of troops, taking its orders, in private causes, from the judge alone—in crown causes, also immediately from the judge, but in effect from the judge and the other servants of the crown in conjunction, according to any agreement which in each instance it happened to them to have made. And thus it is that, in a Westminster-hall court, in a crown cause, including almost all causes in which the members of government, as such, are liable to take any real interest—the fate of the defendant rests altogether in the hands of the dependent set of jurors thus picked out from the rest. So much as to the fact of the dependence: now as to the degree. Of the occupier of any lucrative situation; of the placeman who, by any formal notification, is liable to be at any time removed from his situation—removed by an officer, who himself is liable, in the same manner, to be dismissed by the king or any of his servants, the dependence is commonly considered as standing at the highest point in the scale of strict and perfect discipline. But a point still higher is occupied by the sort of dependence which, in the manner we have seen, has place in the case of a special juryman. For, by the formality of express dismission, the attention of the public mind is naturally, with a degree of force depending on existing circumstances, pointed to the incident; and in some cases, disapprobation from that quarter is in a greater or less degree liable to be incurred: but, in the case of a special juryman, let drop out of the list for lack of obsequiousness, the right hand of the official agent of corruption scarce knows the deed, the negative deed, thus committed by his left.
The System further developed.
Such is the general result. By a few explanations, the conception obtainable of this mystery of iniquity may be rendered more distinct and particular, though, to any practical purpose, the proof need scarcely, nor perhaps can it, be rendered more conclusive.
The choice made, as above, by the immediate instrument of the judge, is not absolutely without its limits; but, by the limits which it finds, no bar whatsoever, it will be seen, is opposed to such a choice as can ever fail to be fully adequate to every desirable purpose.
1. In the first place, forming the basis of all subsequent operations, comes what may be termed The qualified list.
On the foot of the primeval practice, settled before the distinction between common and special jurymen was devised, the members of the list which served as the general fund out of which jurymen were drawn for the purpose of each cause, were, and are, in each township, named by the constable of the township, on the supposition of their being possessed of certain pecuniary and other qualifications, fixed upon by law. By the sheriff of the county, these elementary lists were, and are, collected into one aggregate, which, as above, may be termed the qualified list—the common and special jury qualified list.
2. By the same hand, out of this list a selection is made of such persons as, under the clauses in the acts relative to special juries, are regarded as being provided with the special qualifications appointed by these acts. The minor and included list, thus formed, may be termed the special jury qualified list. The persons thus distinguished from their fellows, and by the distinction qualified for being, in the character of special jurymen, employed by the master, the judicial officer above mentioned, are in the constable’s books designated by the title of esquire.*
3. Among the members of this special jury qualified list, persons whose names are lying constantly before him, and with whose characters, their number being so much smaller (I speak of those for Middlesex, about 400† ) he is at least as well acquainted as the Chancellor of the Exchequer with those of the members of the House of Commons—this right-hand man of the judge,‡ this master, this master packer, as he may be termed, chooses on the occasion, and for the purpose of each cause, 48.∥ Of these 48, the list may be distinguished by the name of the gross occasional list.
4. From this gross occasional list, the agent of the party or parties on each side of the cause, has the power of discarding 12: which faculty (the agent having of course his fees for it) will, in the natural order of things, of course be exercised.§ But if, to this natural order of things, so on any occasion it should happen, that an exception should take place, then, and in such case, it is by the master packer that the defect is supplied, and the operation of discarding performed.
5. Be this as it may, of the remaining 24 is constituted what may be termed the reduced list.
Of each of these 24 the attendance is, or at least ought to be, required by the sheriff by a summons, issued in obedience to an order or precept, which contains the whole reduced list, and has been previously transmitted to him from the court.
6. The number actually serving on a jury being no more than 12, the object in view in summoning the 24 is to secure the appearance of half that number. Of those who, on any given occasion, actually make their appearance accordingly, the list may be termed the actually appearing or attending list.
7. Be the number actually appearing what it may, the 12 whose names stand first upon the reduced list, are the 12 that serve. Of these the list may be termed the serving list.
If not so many as 12 make their appearance, then so many as do appear being put upon the serving list, the rest are taken from among such persons as happen to be in attendance in the character of common jurors.*
On the face of this statement, nobody surely can be at a loss to understand how nugatory the power of discarding, though allowed to both sides, is, in the character either of a bar, or so much as a check, to any sinister choice, which the right-hand man of the judge, the master packer, under all the sinister influence to which, in some cases, his principal stands exposed, may be disposed to make.
The whole 48 being alike at his devotion, alike the creatures of his choice, what matters it to him which of them are the twelve that serve?
8. Of all these several lists, though not as yet distinguished, any of them, by names, viz. neither by the above nor by any others in current use—the existence is neither unknown nor disavowed, nor so much as endeavoured to be concealed.
But another list, the existence of which, though it scarcely would be avowed, is not the less real, and to which suspicion has, it will be seen, already fastened a sort of nickname, is a list which, in the style of sober sadness, may be distinguished by the appellation of the select and secret qualified list. It is a list, composed of such members of the gross qualified list, as by the grand elector so often mentioned—the Talleyrand of the respective courts—are regarded as sure men: men who, being qualified for dependence, may accordingly be themselves depended upon; and from among whom, upon each occasion, the gross occasional list, required for that occasion, may be securely taken without fresh expense of thought.
The Corruption and Dependence developed.
These seven† grand electors, have they, each of them, a separate list of this kind? or does one such list serve for them in common? The answer is among those mysteries which must, in a great degree, remain involved in their original darkness. What, as will hereafter be seen,‡ is certain is, that in and for the use of the Exchequer, a list of this sort exists;—exists with or without a name: what will appear probable is, that if there be not a distinct list of this sort kept in and for the use of the King’s Bench, the Exchequer list is occasionally resorted to for King’s Bench service.
Of these secretly enlisted, and, though without words of command publicly delivered, not the less perfectly disciplined troops, the number is of course not known.
But so well is the nature of them known, that it has obtained for them a familiar name: the corps being termed, the Guinea Corps: the members of it collectively Guineamen: and, if taken separately, this or that one is familiarly spoken of as being concerned and interested in the Guinea trade.∥
Of the degree of dependence in which the situation places a man, no unapt token may be found, in the multitude of the persons whose desire of being placed in it is manifested within a given district, in a given length of time.
In 1808, number of persons, inhabitants of Middlesex, actually upon the qualified list, 1100.§ Number of those who in part of one year applied to be put upon that list, addressing their application to one of the sheriffs, under the erroneous notion of its being in his power to put them upon it, upwards of 100* —all spoken of by him by the description of “respectable persons”—not to speak of others.†
Two other sources require here to be brought to view, from which the completeness and abjectness of dependence, and the correspondent arbitrariness of the correlative power, are capable of receiving increase:—1. The facility and security, with which the correspondent power created by such dependence is capable of being exercised; 2. The number of the persons, by any one of whom the power in question is, with that same degree of facility, capable of being exercised over the one dependent in question. On both these accounts may be seen, in the instance of the Guinea corps, a degree of dependence—in that of their secret rulers a degree of arbitrary power—such as it may not be easy to match in any other instance.
Consider, in the first place, the number and quality of the persons, in whom the dependent will be apt to view the arbiters of his fate. Visible and immediate possessors of this power, two—and two only: these will be, in the first instance, the master packer by whom the gross occasional list is formed—and, in a crown case, the crown solicitor by whom the candidate for a place in the serving list is liable to be discarded.
But these are not, either of them, persons by whom, in case of any sinister interest, the original sinister interest will naturally be possessed: it is from other persons behind the curtain—persons in quality and number unknown to the continually-employment-seeking and everlastingly-dependent guinea-man, that, in case of any such sinister interest, and correspondent notification of superior will, those ostensible and apparent officers will have taken their direction or their cue. In these unknown occupants of the region situated behind the curtain, the trembling guinea-man will behold so many phantoms, to the will of every one of which, so far as it can be guessed at, and to him presents itself as reconcilable with that of the rest, it will be necessary for him to shape his part in the verdict. Among half-a-dozen of these highseated spectres, to five, for example, the verdict he joins in may, in his conception, be matter of indifference. No matter: if to the remaining sixth it be matter of anxiety, the liberty of the guinea-man is as effectually killed by this single one, as it could have been by all six.
Meantime, neither with any of the phantoms behind the curtain, nor with either of the two masses of human flesh subsisting, is it possible for the guinea-man ever to come to any sort of explanation. With the right-hand man of the judge it is scarce possible, with the crown solicitor it is neither necessary nor natural, that he should ever have any sort of intercourse. His sin, the joining in a wrong verdict, is committed openly in the jury-box; his punishment—removal out of the select qualified list—will be inflicted in secret: yea, and so secret, as not to be at any determinate time made known even to the sinner himself. Offended powers inexorable, were it only because uncognoscible: repentance rendered utterly unavailing by the very nature of the case.‡
Think now of the facility and security, with which the correspondent power, created by this sort of dependence, may be, aye, and ever must be, exercised. Say rather, profited by, without being exercised. To powers that need never make their appearance, neither action, no, nor so much as existence, is necessary to the production of the most unreserved obedience: existence sufficient to the purpose is lent to them by the dependent’s fears. On the part of the invisible potentate, no previous mandamus, no lettres de jussion, are ever necessary: the effect is produced without an atom of responsibility in any such high quarter, in any the slightest shape.
How delightful, yes, even in comparison of what it is at present, would be the situation of a Chancellor of the Exchequer, were the corps under his command subject to an equally efficient mutiny law, and thence in a state of equally perfect discipline. No need of letters, no, nor so much as of hints or winks, suggestive of the moral duty of resignation. No Whitbreads, no Madoxes, to encounter: no votes of innocence to frame after confessions of guilt: no previous questions to move, and carry by main force. The thorns that pierce the well-compacted bench he sits upon would not then be so pungent, but that it might be “in the power even of money,” dross as it is (so there were but enough of it) to assuage the smart.
How perfect soever the discipline of this corps, I speak of the guinea corps, may be at present, its existence in any such degree of perfection cannot have been of any very ancient date. Point d’argent, point de Suisse. Before the situation was capable of being moulded into an instrument of corruption—an efficient cause of sure obsequiousness—it was necessary that a quantity of saccharine matter, sufficient for the dulcification of it, should have been secreted and combined with it. But, even at present, keen and numerous as we have seen the appetites to be that are excited by that matter, the quantity of it furnished in a year is no greater (I speak always of Middlesex) than that which is extracted from 200 causes.
At present, as already observed, the whole of the gross occasional list (48) being, on the occasion of each cause, chosen in the first instance by the master packer, all taken out of the select and secret list, with whose “connexions, &c.” he is so perfectly well acquainted;—in this regular and well-ordered state of things, which of them are left to constitute the reduced list (24,) of whom the 12 whose names stand first upon the appearing list will constitute the serving list, will, to him and his high-seated superiors, be, as already observed, matter of complete indifference. But at an early period of the special jury system, no such entire security could have been possessed. Of those with whose dispositions he was sufficiently acquainted, they being at the same time such on whom, if attending and serving, dependence might be placed, there might not be above a dozen of whose attendance he could be sure; and of the whole of this dozen, supposing the right of discarding exercised, he might find himself deprived. In such a state of things, the command of a verdict, even from special jurymen, seems to have been matter of anxiety: and though, when once established, the faculty of discarding could not, as it was thought, consistently with prudence, be absolutely taken away, yet what in this way was thought capable of being done, without a too complete removal of the mask, a too barefaced act of injustice, was done.
Accordingly, in the 3d of King William, anno 1690, Holt being Lord Chief-Justice of the King’s Bench, “a standing regulation,” if not at that time made, was at any rate found to be in existence:* a regulation whereby it was provided, that unless a special order were made for the purpose, giving to the parties on both sides, and consequently to the defendant, that faculty, it should not be exercised; but the nomination should be completed as well as begun, by the officer of the court, the subordinate of the then removeable and completely dependent judge.†
Thus the ordinary course of practice at that time was—not to allow any such faculty; and it was only where, having been importuned for, it could not for shame be refused, that it was granted.
Throughout the system of technical practice, so universal is the practice of misrepresentation and deceit, that it is matter of continual uncertainty by what hand this or that branch of business is actually performed. Thus, in equity practice, of the mass of business stated in the books as being performed by the master, an indefinite and ever variable proportion is really performed by some clerk of his, the master knowing nothing of the matter. In any of these offices, intimate on any occasion a suspicion of anything not exactly correct, whether in the article of probity, attention, or capacity, your mouth is stopped at once by a reference to the dignity and character of the learned person, whose office is held nominally during good behaviour, virtually for life, and who, attired in such resplendent robes, takes, in the Court of Chancery, in Westminster-hall, his periodical seat by the side of the Lord High Chancellor himself; whereas in truth, on the occasion in question, the business was performed, the power exercised, a power over the property of suitors to any amount in point of importance, exercised—not by this learned person, but by some underling who is known to nobody, whose name appears nowhere, and who being there to day, may be gone to-morrow.
Thus in the case of the jury-packing business. In every of the five packing offices but one, the person by whom the business is done is, in the several books of practice above referred to, gravely stated as being the master: and, in each of those four instances, so it may be or may not be. But in one of them, viz. in the King’s Bench office, crown side, of the practice of which there was no account till so late as in the year 1805, the public happened to be favoured with one by Mr. Hands, the packing business, it appears (p. 10) is performed, formed, as it may happen, sometimes by the master sometimes by his clerk.
This being the case in a crown cause, a libel cause, for example, whosoever it may happen to, to see reason for wishing to make himself master of that useful article of knowledge, which, in the Exchequer, according to Mr. Edmunds, as above, persons concerned are so regularly solicitous to acquire, viz. information concerning the “connexions, &c.” of persons qualified for being special jurors, has his choice of two of these intelligence-offices, one of them inferior in dignity, and thence, perhaps, superior in obsequiousness and tractability, to what is likely to be commonly known or imagined.
For, according to Mr. Hands (p. 10,) after “the solicitor has got the master’s appointment on the rule to name the jury,” . . . . it is “the master’s clerk” that “extracts, out of the sheriff’s book of jurors, the names and additions of forty-eight;” and afterwards, “if either party does not attend the master’s appointment,” it is “the master or his clerk” that “strikes out for the absent party.”
Aggregate Mischief of the System.
Of the mischief capable of resulting to the country from the application of this engine of sinister influence, the quantity will, of course, depend on the extent of which the application of the instrument is susceptible.
Cases of felony excepted, this extent coincides with that of jury trial: at least with that of jury trial in causes originating in any of the great Westminster-hall courts. On every occasion, it rests with either party to have a special jury for asking for.* What is reserved to the court is only to say, and that at a subsequent stage, by which of the parties the extra expense shall be borne. Among the causes in which the king is nominally the plaintiff—in those to which the name of crown causes is more commonly understood as being confined—I mean those in which the servants of the crown, as such, being substantially prosecutors, having the prosecution under their care—the expense being borne out of the taxes, all causes, it may well be imagined, become special jury causes: and among these are King’s Bench libel law causes, and, in comparison of these (of which presently) all other crown causes will, to the purpose here in question, be seen to be of light importance.
And here, then, we have not only the possible and probable, but actual extent of sinister influence.
Of the sinister influence of which the institution of special juries is thus the engine, the local sphere is indeed confined, perhaps at least in a great degree, within the bounds of London and Middlesex. But, by causes not necessary to be here particularized, within this sphere are brought, with scarce an exception, all causes that belong to this most important class.
But this mischief, though the principal, forms but one ingredient, in a compound mass of mischief, in which, at least, four distinguishable component elements may be reckoned up:—
1. First comes the injustice—the base and sordid injustice—out of the common pockets of rich and poor, an allowance given by the rich to the rich, in compensation for a burthen which, to those to whom the compensation is given, is as nothing, but, to those to whom compensation is refused, a serious one.†
2. Then comes the pension fund—thus secretly formed, and, though not altogether without the formal allowance, yet, as to its nature and application, completely without the actual cognizance of parliament.
3. In the third place comes the application of this fund to a purpose undeniably hostile, and in its tendency—and, if not remedied, in its sure ultimate effect—destructive to the constitution; destroying altogether, to the extent of its influence (and under its influence are included, we see, the most important causes,) the check which the power of the jury was designed, and is supposed, to apply to the arbitrary power of the judge.
4. Lastly—though, after mention of the preceding abuse, the mention of this last is but an anti-climax, comes the facility which, by the permanence already become notorious, is afforded to the casual corruptor: to any individual to whose improbity it may occur to take advantage of the facility thus afforded.
To extinguish this facility was the declared and principal object of the first of the series of statutes above mentioned; declared in two places (3 Geo. II. c. 25, § 1, § 4.) Corruption of jurors is, in the first of the two places, spoken of as the notorious effect: permanence, the continuance of the same man in that situation, is in the last of the two places spoken of as the cause.*
Views of the Lawyers who penned the Acts.
The confirmation given by the series of statutes, all of them statutes of the last reign, to the use made of special juries, this confirmation, and the prodigious extent to which the practice has in consequence been spread, have been already mentioned.
Of the lawyers with whom this series of statutes originated, or through whose hands it passed, the treacherousness, though in this, any more than in any other instance, treacherousness of this sort ought not to excite surprise, has not the less claim to notice.
The everlastingly vaunted use, and, if not the sole, at least by far the principal use of juries, was the serving as a check to arbitrary power, that otherwise would have been in the hands of judges. But, the mode of appointment considered, in proportion to the extent to which it prevailed, by the substitution of this new-invented to the original species of jury, the efficiency of this check was, in the first instance, greatly debilitated, and left exposed to be at any time utterly destroyed. For the healing of the wound thus given to the constitution, nothing whatever was done by these unfaithful trustees and unworthy representatives of the people.
In the hands of the dependent subordinate of the judge, to whose power the function of those his assessors was in pretence designed to operate as a check, these pretended reformers found the nomination of those same assessors:—in those hands they found it, and in those same hands they left it.
By such practised eyes, the fraud was by far too palpable to have passed unnoticed. As to the remedy, nothing could have been more obvious. In a selection made by human judgment, under the influence of human selfishness and improbity, there was in any hands more or less danger: in a selection made, in the first instance, by chance, corrected afterwards by human judgment, under the influence of impartiality, a neutral power, formed by the combination of opposite partialities, there could be no such danger. The expedient was too much in use, and too obvious, to escape notice. Use will be made it further on, in the composition of the proposed remedy.
The extent they found it occupying (I mean the special jury system) was not only bounded, but extremely narrow. They rendered it boundless: and, by this new-fangled and corruptly-constituted tribunal, all causes that are considered as coming under the denomination of important ones, have accordingly been swallowed up.
To the party in the wrong, to the malâ fide suitor, as often as he sees his advantage in substituting, they gave the power, the indefeasible power, of substituting this unconstitutional tribunal to the old constitutional one; and, amongst others, to the servants of the crown, and to the judges themselves, as often as it should happen to them to have any malevolent passion to gratify, or any sinister interest to promote, at the expense of justice.
Giving to their new tribunal a character so different from that of the old one, which it has to so great a degree elbowed out—giving to a board, secretly composed of commissioners, paid, placed, and displaceable by the servants of the crown the respected and almost sacred name of jury, they thus contrived to transfer to the counterfeit institution, all that attachment and confidence, so justly possessed by the genuine one which it supplants.
Finally, nor, in the extent, as well as confirmation, given to this abuse, did they forget, that which Judge and Co. never have forgotten, profit to their own firm.*
JURY UNANIMITY INCREASES THE CORRUPTION.
The effect of Corruption, how secured by it.
Of the efficacy of the system of corruption, of which the institution of a special jury is the instrument, our conception would be very inadequate, if the force given to that engine by the obligation of what, in the case of a jury, is called unanimity, were not taken into the account. But for this feature, for any purpose of corruption, a majority, or, at least, half of the twelve, all corrupted, would have been necessary: under and by virtue of this feature, one, any one, gained and properly armed—armed with the necessary degree of patience, suffices.
If the mode of forming verdicts had been the work of calm reflection, working by the light of experience, in a comparatively mature and enlightened age, some number, certain of affording a majority on one side, viz. an odd number, would, on this as on other occasions, have been provided; and to the decision of that preponderating number would of course have been given the effect of the conjunct decision of the whole: witness the course taken for securing a decision under the Grenville Act.
But the age in which the mode of forming verdicts was settled, being an age of remote antiquity, of such high antiquity, that nothing more is known of it, except that it was an age of gross and cruel barbarism, the course taken for the adjustment of that operation was different, and, compared with anything that was ever exhibited in any other nation, no less extraordinary than it was barbarous. The whole body of these assessors, twelve in number, being confined together in a certain situation, and in that situation subjected to a mode of treatment, under which, unless in time relieved from it, they would, at the end of a more or less protracted course of torture, be sure to perish: subjected to this torture, but in the case of this as of other torture, with power to relieve themselves from it: in the present instance by declaring, each of them, the fact of his entertaining a certain persuasion (the persuasion expressed by their common verdict,) whether really entertained by him or not: in this way it was that a joint decision, called a verdict, expressed by a predetermined word or form of words, was on each and every occasion extorted from the whole twelve. Such, for the declared purpose of securing truth, veracity, verè dicta—for making sure that, on the sort of occasion in question, whatever declarations of opinion came to be made should be true—such was the expedient invented in the 13th or 14th century—such the course which still in the nineteenth continues to be pursued.
Here, then, as often as in the number of twelve jurors, any difference of opinion has had place, so often has an act of wilful falsehood, of mendacity, had place: viz. in the instance of some number, from one to eleven, included in the twelve, if not (as in the case of sinister influence may at any time happen) in the instance of all twelve. For that it is in the nature or power of torture—one and the same torture—as being applied at the same time and place to twelve persons, A, B, C, D, and so forth, to produce a real change of opinion in any one of them—or if it were, to render it more likely, that the opinion of A should change into that of B, than that of B into that of A, and so forth—is a proposition which, upon reflection, will not, it is supposed, easily find any person either to sign or so much as seriously to say it: excepting always the case of his being placed under the action of any of those machines for the production of peace, concord, ununimity, or uniformity, under the pressure of which anything whatsoever—any one thing as well as any other, is either said or signed.
But though what never can happen is, that by a quantity of bodily pain or uneasiness, any real change should be produced in the opinion formed by any human being on a subject that has no natural connexion with that pain or uneasiness, yet what may very easily, and will naturally happen is, that either by the eventual assurance of any given quantity of pleasure, or, what comes to the same thing, by the assurance of having at command a given quantity of the instruments of pleasure in any shape—or by the eventual apprehension of any given quantity of pain or uneasiness—a disposition may, in a bosom soothed with that assurance, or galled by that apprehension, be produced—a disposition—yes, and moreover, an effective determination—to submit to that pain, for a greater length of time than any during which the same pain will be submitted to by a bosom not acted upon in either way as above.
From this state of things follow two practical results:—
1. Suppose no sinister influence (viz. of will over will) to have place, the verdict will always be conformable to the opinion declared by that one of the jurors, in whose bosom the prospect of the uneasiness to which, until the formation of the verdict, they will all be subjected, operates with least force—more shortly, by him whose sensibility to the torture is least acute—whose power of endurance is greatest.
2. Suppose any sinister influence to have place—an influence acting on the bosoms of any one or more of them in the same direction—while no sinister influence has place in the bosoms of any of the rest;—there are two cases, in each of which the efficiency of the sinister influence, and the delivery of a corresponding verdict, will take place of course:—viz. if on both sides the power of endurance (with reference to the torture) be equal; or if in the bosom operated on by the sinister influence in question (say the fear of losing the situation at the guinea board,) the force of the fear produced by the sinister influence be anything more than equal to the quantity by which what would otherwise be the power of endurance on that side falls short of the actual power of endurance on the other.
Corruptors, regular or casual—both served by Unanimity.
Two sorts of corruptors have above been indicated and distinguished: the regular corruptor, Judge and Co.: the casual corruptor, any individual, to whom it may occur to take advantage of the facilities, afforded by the institution of the guinea corps, for securing a verdict favourable to his cause.
In whatsoever shape, and from whatsoever quarter, the matter of corruption be proposed to be administered, for securing the effect of it, no other contrivance so effectual as this of unanimity—forced and mendacious unanimity—could possibly have been devised.
On so simple and easy a condition, as the being prepared to endure, longer than any of his fellows, a degree of bodily inconvenience which no persons so circumstanced were ever known to endure long, it gives to any one of these jurors, that chooses thus to purchase it, the power of all twelve.
Two different sorts of causes, each with its appropriate judicatory, may serve as examples of the assistance derivable by the two different species of corruptors from this one common source.
I. A political libel cause—sole judicatory the King’s Bench—is in a peculiar degree adapted to afford exercise, or rather does of course and of itself afford exercise, to the sure and safe and silent and imperceptible operation of the regular corruptor, or rather corps of corruptors, whose head-quarters are at the crown office belonging to that honourable court.
2. A smuggling cause,—ordinary, and among the courts of technical procedure in practice, almost sole judicatory, the Exchequer—is, under the invitation held out by the permanent establishment of the guinea corps, in a peculiar degree adapted to the finding exercise for the dexterity of the casual corruptor.
His solicitor (for, when the disposition to corrupt and be corrupted is banished from the Treasury Bench, it will be time enough for a smuggler to despair of meeting with it upon the roll of attorneys,) his solicitor (the same sort of gentleman who, a few years ago, would have answered to the name of attorney) pursuing the instructions given to him as above by Mr. Solicitor Edmunds (p. 119,) “attends” at one of the five packing offices above mentioned, addresses himself according to circumstances, either to the acting master packer himself, or to the clerk, who to this purpose officiates occasionally as the master packer’s deputy—and, according to instruction, as above, makes his “inquiries into the connexions, &c. of the jurors.”. . . . . .
Alas! what a round-about course is this I was about attempting to delineate! as if a solicitor in the smuggling line did not know his duty.
The duty of an advocate is to take fees, and in return for those fees to display to the utmost advantage whatsoever falsehoods the solicitor has put into his brief: the duty of the solicitor is to put into such his brief, whatsoever falsehoods promise to be so made use of to the best advantage. It is for this amongst other purposes, viz. for giving scope and effect to such falsehoods, that, by a law of the modern Medes and Persians, suitors stand for ever excluded from the presence of the judge.
In the great system of delinquency, the smugglers’ branch, as it has its principals, viz. the smugglers themselves who are called by that name, so has it amongst its accessaries—its licenced accessaries after the fact—the learned aiders, abettors, receivers, and comforters, of the aforesaid smugglers.
In virtue of that division of labour, which, by the fortuitous concourse of talents, disposition, and opportunities, has been produced in the court of Exchequer, besides advocates of the inferior order, there is always a title-gownsman or two, regularly established, as anybody may see, in the smuggling line.
Can it be otherwise among solicitors?
In the case of any or each such solicitor, let us then make that supposition, the contrary of which would be alike invidious and unnatural: let us suppose him to know, and knowing, to fulfil, in this behalf, his duty: his duty towards man: and, of his duty towards man, that more specially imperative branch, which is composed of his duty towards the smuggler.
In speaking of the master packer, and his lists, a list mentioned—as one that he ought to have, and having, to keep hung up, is (speaking of special jurors) the gross qualified list;—as a list which it is natural he should have, but not natural that he should keep hung up, another, under the name of the select and secret qualified list, or, to give it its other denomination, the guinea corps.
The solicitor in the smuggling line, can he be said to fulfil his duty as towards each or any of his clients, if he has not, either in his hureau or in his head, a list of the several members of this corps—as correct and complete as it is in the power of “inquiry” and industry to make it?
If in the whole flock of guines-men there be but a single scabby sheep to be found, that one individual sheep is his man:—under the unanimity system, that one individual secures the verdict.
As to the arguments by which he, whose duty it is to offer the bribe, satisfies the conscience of the habitually obsequious guinea-man of its being his duty to accept it, any attempt to display them in detail would be alike superfluous and irrelevant. Necessity of smuggling—impossibility of carrying on trade without it—informers, perjurers—never believe one of them—prosecution is persecution. . . . . .
“Is it for any such purpose as that of biassing a gentleman’s judgment, that the little compliment—the small retribution for his trouble—is ready to be presented?” “Good heavens! no!—it is only to engage his attention—his strict and unbiassed attention—of which his detection of the system of perjury, which it is known will be brought forward, will be the certain eonsequence.” . . .
But to what purpose go on incumbering the section any further with any the slightest hints? Our solicitor has heard with due attention the speeches delivered from learned silk: he has read debates in newspapers:—poorly qualified indeed must he be for the exercise of this part of his duty, if on the occasion of any such diplomacy he ever finds himself at a loss. Come the worst to the worst, he can but go up to the guinea-man, with his piece of paper in his hand, and in a tone of blunt frankness speak out and say—“Look here, Sir! look at this five hundred pound: this very note shall be yours, the very day a verdict of not guilty is pronounced.—Good Sir! you need not stare so: it is but corruption, make the worst of it: and it’s all for the good of trade. In short, Sir, without corruption, no government can be carried on—it’s a known fact, agreed to on both sides of the house—and if government can’t, I should be glad to know, Sir, how can trade?”
“Well, Sir, we won’t differ about names: if corruption is not to your taste, let us say influence:—and pray, Sir, where’s the difference?”
But, in one and the same cause, suppose the regular corruptor on one side, and the casual corruptor on the other:—in a case of this sort, how will the matter be settled?
Fret not thyself about any such case: it is a case that can never happen: nor, if it were to happen, would there be any difficulty in it.
In the libel line it can never happen: for, as every man that either writes or reads is by law a libeller, there is no such person as a solicitor specially established in the libel line. The regular corruptor—or rather the phantom of the regular corruptor—for (as we have seen) the phantom is quite sufficient—this regular phantom, having here no competitor, walks over the course.
In the smuggling line, it can almost as little happen. The solicitor for the smuggler is solicitous for the smuggler, because, and in so far as, in being solicitous for his client, he is solicitous for himself. Here, then, we have the casual corruptor. The solicitor for the crown is not solicitous for what is called the crown: his solicitude, if he has any, is more likely to be for the smuggler: because the more of them escape a first time, the more there are that remain to be prosecuted a second time; and whether the smuggler be caught or escape, the solicitor remains solicitor as before.
Here, then, provided the fee be handsome enough (for proportions, it will be seen, must not be forgotten)—here it is the casual corruptor that walks over the course: as to the regular corruptor, everywhere but a phantom, he is here a phantom by much too weak to oppose to flesh and blood any effectual resistance. In the Exchequer, he is but a pigmy: it is in the King’s Bench only, and there in the field of libel law only, that he is, as he will presently be seen to be, a giant.
But suppose, be it possible or no, a real competition: a solicitous casual corruptor on one side, a solicitous regular corruptor on the other: how (it may be asked) would matters be settled in this case?
In the guinea trade, as in any other trade, they would be settled upon the principles of trade. Compliment offered, so much down. Per contrà, on taking stock, situation in the guinea trade, gross value, so much: situation not being insurable, either at the Equitable or the Amicable, say loss of value, by peril of false brethren, and shipwreck, in case of non-obsequiousness, so much: balance, for or against accepting compliment, so much.
“But at this rate,” says somebody, “we should have bought acquittals, especially in smuggling causes, as plenty as sham pleas or sham bail—and of any such degree of frequency, or anything approaching to it, are any indications to be found?”
Have patience:—things must have time to ripen. It is only within these few years, and under the auspices of the present learned chief, that the system has been raised to that height in the scale of perfection, at which it will presently be seen to stand. Earth must have time to bring forth her increase: especially in such a field as that of judicature, where if, of those things which yield profit to the husbandman, the growth of every thing is sure, yet even of those things the growth of almost everything is slow.
True it is, that, after fighting off till judgment, the swindler, with another man’s money in his pocket, goes to eight of the twelve judges in the Exchequer chamber, or to four of them in the King’s Bench, as the case may be, and says to them (they appearing in the only mode of appearance which they admit of, viz. by this or that agent of theirs)—“The delay you have upon sale is cut out, I find, in pieces much of a length; let me have one of the longest: make out your account: I know you deal for nothing but ready money; here it is for you.” Here we see perfection—the very summit of the scale.
Expect not, however, that at the guinea office, even at that which is under the Exchequer, business of this sort should, at so early a period of the institution, be already to be transacted upon any such pleasant and easy terms, as with the old established firm, Judge and Co., the business of which has for so many hundred years been conducted upon the true principles of trade.
Expect not therefore to find already established, by the side of each delay-shop, a verdict shop, at which, addressing himself to a clerk of the guinea board, with as much frankness as if in an error-office it were a solicitor to a swindler addressing himself to the clerk of the errors, a solicitor in the smuggling line may say—“The king against such an one—I am for the defendant: secure me a verdict! penalty, so much: 5 per cent. upon that sum, so much; here it is for you.”
No:—to the prosperity of this branch of the trade, one limit there is, which is set by the very nature of the trade.
The regular corruptors are here the fair traders: casual, such as smugglers, are but interlopers: between the fair trader and the interloper there exists an everlasting jealousy. This being the case, suppose this branch of trade arrived even at its highest possible pitch of improvement—no one guinea-man could expect to sell any more verdicts than one. His comrade would peach of course: he would of course be let drop out of the list, and there would be an end of him. Therefore, unless the case be such that the price offered for the verdict is more than a place at the board is worth, the guinea-man is no less incorruptible than Cæsar’s wife was chaste.
Expect not everything at once. Arm yourself with patience. A few pages more, and—though you will not find the curtain that screens the verdict-office so completely drawn up, as that which once screened the delay-offices has now been for these eleven years—yet, should your patience serve you till Part II. chap. 3, a slight peep behind this curtain you shall have.
PURPOSES TO WHICH INFLUENCE ON JURIES MAY BE MADE SUBSERVIENT.
Blind Confidence in Judges not warrantable.
If, for confining the exercise of it within the paths of justice, the power of the judge stood not in need of any kind of check, the destruction of the sort of check which was designed, and is supposed to be applied to it by the functions of the jury, would not afford any just cause of complaint, any demand for reformation.
If, in the situation of judge, a man were not liable to stand exposed to the action of any sinister interest, or delusive passion, opposite to the interest of the public, in respect of the ends of justice, viz. neither on his own individual account, nor on account of any other individuals or classes of men, whose interests or passions, by whatsoever tie connected with his own, it may happen to him to espouse—were such the real state of things, on that supposition, the exercise—the independent and well-considered exercise—of the functions of the jury would not, in the character of a check to the power of the judge, be of any use; nor, therefore, would any diminution of that independence present any just cause of complaint, any demand for reformation.
Not that, even on this supposition, the propriety of continuing the use of juries, whose obsequiousness were thus regarded as certain, would, in this or in any other part of the field of jury trial, be the practical inference. No: the practical inference would be—that, in this part at least, of that field, juries ought to be abolished.
For sure it is, that if so cumbrous and expensive an appendage as is the jury-box to the official bench were not useful, it would be much worse than useless. To the course of judicature, in the character of a source of factitious complication, and thence of factitious delay, vexation, and expense, it is, as it is, an enormous—as at best it would be—a considerable incumbrance: while to such individuals as are loaded with the duty of filling it without recompense, the vexation is such as to constitute, as we have seen,* no inconsiderable part of the aggregate mass of public burthens.†
In saying abolished—juries ought to be abolished—I mean, of course, abolished by proper authority—abolished by parliament:—not reduced to collections of puppets by the machinations of judges.
But of the several propositions, thus brought to view, for the purpose of the argument, the contraries will, it is supposed, be found true.
Throughout the whole field of special jury trial, for confining the power of the judge—(meaning the exercise of it) within the paths of justice, there exists much need of a check, and that an efficient one.
For, in the situation of judge, throughout the whole of that field (whatsoever is situated without that field belongs not to the present purpose), a man is continually exposed to the action of sinister interest, and delusive passion, acting in directions opposite to the interest of the public, in respect of the ends of justice: to sinister interest and passion, casually on his own individual account, much more frequently on account of other individuals or classes of men, whose interests or passions, by whatsoever tie connected with his own, it may happen to him to espouse.
Throughout the whole field of special jury trial, obsequiousness on the part of juries—obsequiousness (secured, as above, by corrupt influence) is therefore, if the above propositions be true, prejudicial, in a high degree, to the interest of the public in respect of the ends of justice. I say obsequiousness thus secured: and if so, then so therefore are its above-mentioned efficient causes—viz. packing and permanence.
Interests, to the action of which Judges are liable to be exposed.
Money, power, ease, and vengeance, these, together with reputation, so far at least as the efficient cause of felicity in this shape may have the effect of serving as a security or means of increase for it in any of those others—reputation, how well or how ill soever deserved, may be set down as indicative of the several interests by which, when acting in the direction of sinister interests, the conduct of public functionaries in general, and of judges in particular, is, in a more particular degree, liable to be warped.
Partiality—viz. in favour of the interests of this or that other individual or class of men—will be apt to present itself as another interest—and certainly not an inefficient interest—distinct from the above. Such as it is, the indication of it may, however, in a certain sense, be comprised in the above list: since by that one word are indicated the several sorts of interests already spoken of as comprehended in that list; the only difference being in the personality of the individual or individuals, whose interest is considered as being at stake. The pecuniary or money interest, to the action of which, in the character of a sinister interest, I stand exposed, may have for its exterior cause a sum of money which I myself am in a way to gain or lose, or a sum of money which another person, whose interests I espouse, may be in a way to gain or lose: and so in regard to power, ease, vengeance, and reputation, as above.
Of these objects of desire, money and power, especially if considered with reference to no other person than the functionary himself, present, on the present occasion, comparatively speaking, but little matter for attention. To the judge himself, money and power are secured by office: secured and fixed, out of the reach of receiving augmentation, any more than diminution, at the hands of juries: so far as power is concerned, those cases excepted, if any such there happen to be (for they are but of casual occurrence,) in which, the affections of the judge, taking an interest (in the way of partialities* ) in the event of the cause, it may happen to his power, in the event of his endeavouring to afford to that partiality a gratification at the expense of justice, to find, in the power of the jury, an opposing check.
Love of ease and desire of vengeance may therefore be set down as the two passions or affections, from the influence of which, for want of such check as the power of a jury was intended to apply, the interests of justice are most exposed to suffer in such hands.
Love of ease applies, and applies alike, to all sorts of causes: vengeance, unless by mere accident, to but one, and that comparatively a narrow one, viz. libel causes; but that, with reference to the interest of the public, so important a one, that all others shrink as it were to nothing in comparison of it.
Not only money and power, but dignity and respect, being secured by office, the chief object of solicitude and pursuit remaining to the judge, is ease. But, so far as jury-trial is concerned, the ease of the judge is as the obsequiousness of the jury. These volunteers, so different from some others, being by the very nature of their situation, and without need of exertion anywhere, kept in a state of constant preparation and established discipline, waiting and wanting for nothing but the word of command, and drilled into that sort and degree of intelligence, which is sufficient for the understanding it, labour, on the part of the judge, is reduced to its minimum, ease raised to its maximum. If circumstances be to such a degree favourable, that not so much as the show of explanation is found necessary, so much the better:—at the worst, all anxiety, and with it the greater part of the labour, is removed by the pre-established harmony.
Nor, in this way, is the reputation of the judge worse provided for than his ease. Be the man in power who he may, what can be more flattering to him—what, to a superficial view at least, more honourable, than the known fact, that under the name of opinion, upon all whose lot has fixed them within the sphere of his intercourse and his influence, his will has habitually the effect of law.*
For the operations of the sinister interest created by the love of ease, every sort of cause, and every sort of judicatory, presents, almost in equal degree, a favourable theatre.
Instead of love of ease, say, for shortness, sloth: which, though under the Pagan dispensation, neither god nor goddess, not ranking higher than with syrens,† is not in our days the less powerful; whatsoever might have been her influence in those early times. It is to sloth that, by official persons of all sorts and sizes, but particularly the highest, sacrifices are made continually, and in all shapes: in all shapes, and in particular in that of justice, the only one which belongs to the present purpose. Of a sacrifice of this sort, a sketch, taken pretty much in detail, has already been given in another work, Scotch Reform, Letter IV. Bewitching syren! A little while, and even before these pages are at an end, we shall see a pre-eminently learned and most reverend person confessing his passion for her, with scarce a gauze before his face. Part II. Chap. 4.
Plutus is apt to betray his votaries: to him justice cannot readily be sacrificed but in a tangible shape. Syren Desidia keeps her secrets better: so well indeed, that without hard labour in other quarters, and in no small quantity, sacrifices made to her can seldom be brought to light. Even when a mischance of this sort happens to them, the mischief, be it ever so enormous, finds the public—the English public at least—comparatively indifferent to it. John Bull—the representative of this most enlightened of all publics—is a person somewhat hard of hearing, and unless by the chink of money, and that a good round sum—the irascible part of his frame is not easily put into a ferment: and, even then, it is not so much by the mischief which the public suffers, be it ever so heavy, as by the sum of money which the wrong-doer pockets, be it ever so light, that his fire is kindled. Mischief, if the truth may be spoken, does not much disquiet him, so long as he sees nobody who is the better for it.
The love of ease is too gentle a passion to be a very active one: but what it wants in energy it makes up in extent: for, there is neither cause nor judicatory in which there is not place for it. As to vengeance, it is only now and then, and by accident, that it comes upon the stage of judicature: but when it does, such is its force, that, in the character of a sinister interest, no interest, to the action of which that situation is ordinarily exposed, can compare with it. For the exhibition of the triumphs of this tyrant passion, and of the sacrifices made to it, the King’s Bench is, by patent, the great and sole king’s theatre; the liberty of the press, its victim; libel law, the instrument of sacrifice.
Behind this sinister interest lurks, frequently at least, if not constantly, another, viz. self-preservation: an interest, than which, to judge of it from this its general name, nothing should be more innocent and uncensurable. But self-preservation is preservation of one’s self from evil in any shape: a species of evil, which will be presently seen to be impending—and that, too, an evil from which, by so pleasant an operation as that of the gratification of vengeance, a judge, in that situation, feels himself every now and then called upon to preserve himself, and with himself, his partners in the firm of Judge and Co., together with abundance of his friends, is—the loss of an indefinitely extensive lot of money or power—whether in possession, or, though not in possession, regarded as within reach:—viz. whatever portion of either is not recognised as being the offspring of any species of abuse?
Of the several departments of government, howsoever carved out and distinguished—judicial, financial, military, naval, and so forth—suppose that in all, or any of them, abuses exist—abuses, from which the persons, or some of the persons, by whom those departments are respectively filled, derive, each of them, in some shape or other, a sinister advantage. In this state of things, if there be any such thing as an instrument, by the operations of which all such abuses, without distinction, are liable to be exposed to view, the tendency of it is thereby to act with hostile effect against the several sinister interests of all these several public functionaries; whom thereupon, by necessary consequence, it finds engaged, all of them, by a common interest, to oppose themselves with all their means, and all their might, not only to its influence, but to its very existence. An instrument of this all-illuminating and all-preserving nature, is what the country supposes itself to possess in a free press; and would actually possess, if the press were free as it is supposed to be.
Interests, to the sinister action of which English Judges stand actually exposed.
Thus much as to the interests, to the action of which (in the direction and character of sinister interests) the probity of a judge, in every age and country, is liable to stand exposed.
But—not to speak of the footing on which the matter may stand in this or that other country—in England at least, so far as concerns pecuniary interest—the most uniformly active and generally irresistible of all sinister interests—the degree in which the probity of a judge has ever stood, and still continues to stand, exposed—in mechanical language, to the action of sinister interest—in chemical language, to the action of the matter of corruption—is such as cannot anywhere be exceeded.
Paid as he is paid—and were he even paid on any purer principle—trained as he has been trained—draughted from the corps from which he has been draughted—not only his interests, but the prejudices begotten by those interests, are in a state of constant, universal, and diametrical opposition to his duty—to every branch of that duty—to every one, without exception, of the ends of justice—(Scotch Reform, Letter 1.)—to the several most immediate ends, not to look out for any remoter ends:—to the collateral ends—avoidance of unnecessary delay, vexation, and expense—to the main ends, avoidance of denial of justice, and of undue decision to the prejudice of the plaintiff’s side, and avoidance of undue decision to the prejudice of the defendant’s side. In a word, in exact proportion as by or under the authority of this Dives the suitors are tormented, he himself—not only in his preceding character of advocate had been used to be, but in his present character of judge continues to be—comforted!
Not a delinquent, high or low—but especially not a high and powerful delinquent—with whom he is not linked by the bands of a common interest. Not a wrong, from which, if not certainly and immediately, at any rate in respect of its natural and frequently efficacious tendency, he does not derive a profit. The more wrongs, the more causes; and the more causes, the more fees!
Not an imaginable channel (that of punishable bribery alone excepted) in which, in the shape of the matter of corruption, the matter of wealth does not, under the name of fees, flow in daily streams into the pocket and bosom of the judge:—1. Receipt of fees in virtue of his own office, under his own name. 2. Fee-yielding office, given in appearance to a clerk, out of whose hands the profits of it are squeezed. 3. Sale of a fee-yielding office for full value. 4. Fine or bonus on admission. 5. Fee-yielding office given in lieu, and to the saving of the expense, of other provision for a son, or other near relation or dependent, he doing the duty. 6. Or else not doing the duty, but paying a deputy. 7. Fee-yielding office given, or the profits of it made payable, to persons standing as trustees, for a principal, declared or undeclared; if undeclared, supposed of course to be the judge himself.
No other country upon earth, in which, among judges—(I speak always of those of the highest rank, to whom alone the name is given, and by whom the great and happily uncorrupt body of those functionaries is ruled,)—no other country upon earth in which, in this highest rank, amongst these monopolizers of the honour so justly due to the function, corruption has place to an extent approaching to that to which it has spread in this country of pretended purity, or in which it is possible that anything like equal profit should be made by it. In other countries, not being practicable but in the shape of bribery or extortion—practices proscribed by law, and necessarily open to detection—it is but casual: in England, being, in all these other forms that have been mentioned, either legalized, or seated above the reach of punishment, it is, in that highest rank, constant and universal.
By means of sine-cures in general, and judicial sine-cure offices in particular, whatsoever money is levied upon the subject is so much extracted from him on false pretences: the tyranny of extortion, and the turpitude of swindling, are combined in it. In the case of judicial sine-cures, by the very men by whom these enormities are punished—punished in cases in which they derive a profit from the punishment, and none from the practice—these same enormities are not only connived at, but participated in, and the profit pocketed.
Falsehood—corrupt and wilful falsehood—mendacity, in a word—the common instrument of all wrong—was, in the instance of all those judicatories (as any man may see, even in Blackstone,) among the notorious foundations or instruments of their power: and, in every one of them, from the beginning of each cause to the end, sometimes by the lips or the hand, always under the eyes of the judge, matter of constant and universal practice. Not one of them, in which it is—not merely allowed of, but encouraged; and not only encouraged, but forced, inexorably forced. Without so much as an attempt at argument, in the very teeth of common sense, falsehood, the irreconcilable enemy of justice—falsehood, under the name of fiction—is passed off by them upon the deluded people—passed off as the true friend and necessary instrument of justice!
In such a state of things, behold two propositions, between which the perplexed and deluded people are left to make their choice:—1. That falsehood—wilful, deliberate, and rapacious falsehood—is not a vice; or 2. That it is in the power of man—of every man who has the power of a judge—to wash away the filth of vice, and transform her into virtue.
Hence, if mendacity and rapacity be vices, the very sink of vice is the seat of the titled lawyer, who, to his other titles, blushes not to add that of custos morum—guardian of the public morals: as if the most noted among procuresses were regularly to write herself over her door—guardian of female chastity!
In the character of an instrument of corruption, for the depravation of the moral part of man’s frame, falsehood has been scarcely more useful to them, more actively employed, or more deservedly prized by them, than in that of an instrument of deception, for the debilitation, perversion, confusion, and depravation of the intellectual faculty.
Fiction, accordingly, has scarcely been more serviceable, in the character of an engine, for the accumulation of undue profit and illegal power, than in the character of a species and source of nonsense, by which the eye of the understanding, being blinded or bewildered, is thus prevented from seeing the absurdity and wickedness which is at the bottom of it.
In every one of these paths of depravity, the most depraved system that can be found in any other country is left far behind. “Swearing,” says one of the characters in a French drama, “constitutes the groundwork of English conversation:” Lying, he might have said without any such hyperbola, lying and nonsense compose the groundwork of English judicature. In Rome-bred law in general—in the Scotch edition of it in particular—fiction is a wart, which here and there deforms the face of justice: in English law, fiction is a syphilis, which runs in every vein, and carries into every part of the system the principle of rottenness.
Let us steer clear of exaggeration. In this, as in other parts of the field of law, to plant new abuses is not even now so easy as to preserve the old: and as the resisting strength of the public mind increases, the difficulty cannot but increase.
But if the stock already in existence be in any degree greater than what is desirable, and especially if among them there be any of so hardy a nature as, without need of further care, to keep on growing of themselves, no very powerful plea, it is presumed, will by this admission be afforded in favour of any such unbounded confidence as must be bespoken for judges, by any person to whom the check, supposed to be applied to their power by that of juries, is regarded as superfluous.
Keeping our minds fixed on jury trial, and the extent to which it is capable of operating, in the character of a check to the enormities above mentioned, and thence on the amount of the mischief liable to be produced by the destroying or weakening of that check; another observation which, in the way of admission, it may be of use to make, is—that, so far as concerns sinister profit, by far the greater part of the work of corruption has been executed by means of a set of devices (see the list in Scotch Reform, Letter 1.) to the success of which the concurrence of juries neither is nor ever has been necessary. But neither are instances by any means wanting, in which, whatever be the purpose—profit, ease, vengeance, or whatever other sinister advantage may be the object of the day—complete success, even with the aid of the whole host of those devices, may, in one way or other, depend on the obsequiousness, so effectually secured, as above, on the part of juries. (Scotch Reform, Letter IV.)
Upon the whole, under the fee-gathering system, as above glanced at, of which system packed juries and sham jury-trial have come to make a part, the result is—that, unless in an English judge the nature of man be totally opposite to what it is in every other human being, unless this be assumed, everything at all times, rather than nothing at any time, ought in common prudence to be apprehended at the hands of an English judge.
Existing Popularity no sufficient Ground for Confidence.
“But amidst, and in spite of, all this temptation, the purity of English judicature, is it not in fact so exquisite, and so universally recognised, as to have become in a manner proverbial? And in this experience is there not that which suffices for the confutation of all that theory?”
Universally? Not much short of it.—Proverbial? There or thereabouts. But note well the causes:—
1. Impurity, to appearance washed away by legalization.
2. Impurity, covered over by perpetually renewed coatings of interested praise.
3. By intimidation, impurity protected against disclosure.
These causes understood, the popularity will be seen to be the result—and, as such, an indication—not of purity, but of depravity.
Thus much for hints:—follow a few elucidations.
1. Impurity, to appearance washed away by legalization.
Be the system what it may, and let impurity have risen under it to ever so high a pitch, yet if the system be but of old standing, the sanction lent to it by antiquity is sufficient to prevent the impurity from fastening any the slightest stain upon the reputation of the system: as also, so the system be but legalized, upon the reputation of the judges, be they who they may, who act under it.
In the way of sale, or in any other way, suppose the judge to derive an advantage from an office, the profits being composed of fees, the aggregate amount of which it depends upon himself to increase, or preserve from diminution: for example, by increasing or preserving from diminution the number of the occasions on which they shall be received. If among the acts by which an advantage of this nature is capable of being reaped, there be any one which, being prohibited by law, and made punishable, is, upon occasion, actually punished,—then it is, that in case of his being known or suspected to have done any such act, his reputation will be more or less affected. But let that same act be allowed by law, and legalized, his reputation remains untouched.
Now there are two sorts of law, by either of which, or by a mixture of both, a judicial practice may be legalized: one is common, alias unwritten law; and this is the sort of law which (in so far as a rule of action which has no determinate set of words belonging to it can be said to be made) has for its makers the judges themselves; since it is by their own practice that it is made. The other is statute law; and in the making of this, through the means of their partners in trade in both houses, they have at all times possessed and exercised a most baneful, and, if not altogether irresistible, scarce ever resisted influence.*
Of the effect of the sinister interest under which the judicial system of this country, or call it the system of procedure, has been throughout its whole texture, and all along manufactured, the samples given in the note are but as so many handfuls of tares (let us not say wheat,) taken at random out of the contents of the whole granary. In a parenthesis as it were, as here, more will surely not be expected.
Such is the mode, and such the hands, in and by which, upon a careful computation, the mass of factitious expense and delay (not to speak of vexation,) with which the approaches to justice are clogged, have, according to circumstances, been increased to some scores, and even to some hundreds of times what would otherwise have been its amount, and the great mass of the people—from ninetenths to nineteen-twentieths or more—fixed—with only here and there an exception produced by inconsistency—fixed in a state of perpetual outlawry: exposed without redress to injury, in every shape in which it is not deemed criminal, besides a multitude in which it is.
But this system of general proscription, this system of general outlawry, being the work of law, is according to law: the creators and preservers of it, being all men of law, are “all honourable men:” and in the words of Blackstone, “every thing is as it should be.”
2. Impurity, covered over by perpetually renewed coatings of praise.
Partly by the imbecility, partly by the interested artifice of the makers, the rule of action, unwritten and written law together, having been worked up into a chaos, of which it is impossible for the people to form to themselves any tolerable conception: hence such conception as they have of it, is grounded, exclusively, upon the reports made of it by the manufacturers themselves. But the worse they have made it, the greater their apprehension, lest its depravity should be discovered. The less deserving it is of praise, the greater the need it has of praise: the more flagrant its defects, the greater the demand for the only sort of covering of which they are susceptible. (Scotch Reform, Letter IV.)
1. In regard to the system, the more afflictive it is to the people in the character of suitors, the more profitable it is to the man of law: and the greater the profit he derives from it, the greater the quantity of praise which it is his interest to bestow upon it, and which accordingly he ever has bestowed, and ever will bestow, upon it.
2. So in regard to the persons, by whom, for the time being, it is administered: the persons themselves being linked together by the tie of one common interest, and all who either dare to publish any account of their proceedings, or are qualified to publish any tolerably correct one, being candidates for their favour, the consequence is—that, with the rare and casual exceptions produced by party jealousies, the same picture of scarcely diversified excellence has served for all of them at all times. The portrait is the same: and all that remains for this and that new limner is to write under it this and that new name.
In this happy state of things, the system, and those by whom it is administered, afford reciprocal demonstrations of each others’ excellence: the excellence of the system is proved by the excellence of those by whom it is administered: and the excellence of those by whom the system is administered is proved by the excellence of the system by which they were formed and under which they act.
Up to the instant which sees him mounted on the pinnacle of the bench, the man of law is recognised by every body, as being of the number of those to whom right and wrong, truth and falsehood, would be matter of complete indifference, were it not for the predilection naturally entertained for the best customer: and in whom the minister of the day, through whose hands in his way to that pinnacle he must first have passed, has found an instrument no less ready, for the wages of corruption, to do the work of corruption upon the largest scale, than the individual wrongdoer has found him to do the work of iniquity upon any smaller scale. Yes, and although his interest remains at least as opposite as ever to the interests of the community, in respect to the ends of justice, no sooner have the form and substance of his robes undergone the customary transfiguration, than the heart, which they so well cover, is universally understood to have undergone the correspondent change. The corruption has put on incorruption: and the will, the training of which towards the paths of iniquity, had till then been so generally recognised, is now secured against all danger of taking a wrong direction, being itself become the standard of rectituds.
3. By intimidation, the impurity protected against disclosure.
While, under the spur of every excitement which avarice or ambition can apply—(every thing that is said of the law and its administrators, being a sort of prize-essay on their perfections)—while, by the force of this stimulus, whatsoever features of excellence it possesses are raked together, and held up to view, decorated with every embellishment that interested eloquence can bestow—its defects, were they still more flagrant than they are, would be, as they ever have been, kept covered up and protected against disclosure, by every force that either authority or power—influence of understanding over understanding, or influence of will over will—can bring to bear upon the subject.
Point out a defect in the system, all ears are stopped against everything you can say,—all eyes shut against everything you can write: or if haply indignation breaks the bridle set upon the tongue and the pen by prudence, hatred and contempt in all their forms—sincere hatred, accompanied with simulated contempt—are poured upon your head. Jacobin, leveller, enemy of social order—theorist, speculatist, visionary—compose the arguments you have to encounter—together with whatsoever other appropriate epithets and phrases, substitutes to truth and reason, are furnished by the courtier’s and lawyer’s gradus.
Touch upon those who act under the system—under it—or, if so it please them, over it—point out any defect in their conduct in respect of it, millstones still better adapted to the purpose of crushing, than either hatred or contempt—ruin in the shape of prosecution—and, if that be not enough, in the shape of imprisonment—millstones ready to be let fall every moment, at the nod of caprice or vengeance—hang aloft over your head.
Victims of the system, or sympathizing with those that are, whatsoever complaints men have ventured to give vent to on this ground, terror and prejudice have combined to point to the wrong mark. The system is faultless; the creators and upholders of it are faultless; but, in the shape of wicked attorneys, evil spirits creep in now and then, and convert into poison the salutary remedies it affords.
No representation was ever more opposite to the truth. The quantity of mischief produced by anything which, under the name of irregular practice, is either punishable or censurable, is as nothing in comparison of that which is produced by regular practice—by that which has been legalized and organized for the purpose: and even the loopholes, at which the irregularities have crept in, are amongst the works which the regularity of regular practice has had for its objects and its uses. If judgments are snapt, it is because, by the pre-established mechanism (Scotch Reform, Letter I. Devices 5 and 8,) they were framed as they are, to fit them for being snapt. Now and then, in great ceremony, in the character of scape-goat, or, to speak in modern language, in the character of tinman, in expiation of the sins of the whole tribe, a miserable attorney, the child of the system, is sacrificed on the altar of offended justice: but the chief profiter by all those sins, is the chief priest, who, with indignation on his brow, and laughter in his heart, offers up the sacrifice.
By the inferior branch of the profession—by the attorney branch—the system has all along been taken such as it has been found: it is by the two superior branches—composed of judges and advocates—advocates in the senate, judges occasionally in the senate, constantly on the bench—that it has been made such as we see, or rather as we feel it.
Of the three branches, the inferior, as it is the most populous, so is it in its nature the least impure. To an attorney—those operations and instruments excepted, in which the part he takes is compulsory and unavoidable, having been imposed upon him by judges—to an attorney, as such, the language of insincerity is never necessary. On the part of the advocate, the necessity and consequently the practice, is constant: the only choice there is for him, is between the more and the less.
Such is the mind of the advocate: and the mind of the advocate is the stuff of which the mind of the judge is made.
Filling the bench from no other fund than the bar, is it not exactly such a mode as if boarding-school-mistresses and governesses were never to be chosen but from brothels?
Yet, by giving to the matter and language of the law, a texture nauseous to every liberal mind, and impenetrable to every mind not sharpened by hunger, an exclusive admission to the bench has been secured, in favour of a profession which, if either love of justice or of truth had been considered as necessary qualifications, would for ever have stood excluded.
Obvious as they are, against all these considerations the non-lawyer has learnt to shut his eyes. At an early age, the picture of the law drawn by Blackstone had been put into his hands: a picture in which all deformities and turpitudes are plaistered over with the most brilliant colours. To pry into the original would require hard labour: to glance over the picture requires but a glance. Set before him the original, he turns aside from it: to an insight into the original, he prefers a dream over the picture.
Thus it is that, when rightly considered, the popularity of the system—paradoxical as at first sight the proposition cannot but appear—the popularity of the system, so far from being a conclusive proof of its excellence, affords a proof, inasmuch as it is among the results, of its depravity: the depravity being the cause, of which, through the intervention of the intermediate causes that have been brought to view, the popularity has been the effect:—
1. Depravity, viz. in respect of factitious delay, vexation, and expense; 2. Profitableness to lawyers, in respect to their profit upon the expense; 3. Popularity among lawyers; 4. Praises by lawyers; 5. Popularity among the people at large, but more particularly among the ruling classes, connected in so many points of sinister interest with the lawyers,—in three out of the above five we see the intermediate links, by which a cause and effect, to a first view so wide of each other, have been brought into connexion.
Important as these topics are—viz. the goodness of the system, and the virtue of those who act under or by virtue of it, to the present purpose they belong in no other point of view than this:—of the packing system—being a system which, it has already been seen, is established, and, as it will soon be seen, has been avowed, the effect—(quoth the argument against it—say, in lawyer’s jargon, the declaration)—is to destroy this part of the constitution, by destroying the check which the power of the jury was intended to keep applied to the power of the judge:—nay; but so transcendently pure, (quoth the argument in favour of the package—say the plea) so transcendently pure, under and by virtue of the system, is the virtue of the judge, that no such check is or ever can be necessary. Such being the plea, it became necessary to traverse it: and if the plea itself be no departure, so neither is the traverse.
CHIEF PURPOSE, CRUSHING THE LIBERTY OF THE PRESS.
Liberty of the Press—has it any and what Existence?
We come now to the grand and paramount use of the packing system—the crushing the liberty of the press—destroying whatever remains of it undestroyed.
To prevent indistinct or erroneous conception, a few words of explanation may here, once for all, be of use.
King de jure and king de facto, is a distinction familiar to every eye, that has ever glanced over English history. The same distinction must be applied to the liberty of the press, by whosoever would be saved from falling into error and heterodoxy on this scabrous ground: Liberty of the press by law? No. That sort of liberty excepted, which consists in the non-existence of a safety-shop, in the shape of a licenser’s office, no such thing either has, or ever has had, any existence. So, embodied in the person of Lord Mansfield, the soul of the custos morum certified to some of us in 1770.* So, embodied in the person of Lord Ellenborough, the same guardina spirit of good order confirmed to us in 1804.†
Liberty of the press de facto? Yes: viz. that which, being contrary to law, proscribed by law, has all along maintained a sort of rickety, and still maintains a momentary half-existence, in the teeth of consistency as well as law, by means of breach of the law in low situations, and non-execution of the law in high ones.
Hence it was, that in the place of any such words as destruction or destroying—which otherwise would have been so much more obvious—it was necessary to look out for some other of a less determinate import, such as crushing, as above. For of any such word as destroying, the effect would have been to bring in with it, and keep attached to it, the idea of existence: than which, as above, a more dangerous heresy could not, by any Englishman, Protestant or Catholic, be entertained.
But, forasmuch as, in neglected bodies, vermin of all sorts will be apt to crawl into existence, hence comes the necessity which persons in “high situations” are under, of keeping in their hands the means of crushing—as often as in any such shape and stature as to render itself troublesome, it happens to it to show itself—the liberty—but, forget not for a moment, the de facto liberty—of the press.
In the first place, while pen and ink remain still at command, I shall endeavour to bring to view a sketch—an extremely slight and temporary one—(for that is all that can here be given)—a sketch, or rather as before a sample—of the interest which not only Judge and Co. as above, but moreover the high connexions of the firm, have, in keeping the liberty of the press in the sort of abortive embryo state in which it has so effectually been preserved; viz. by the hands by which, had convenience prescribed, and possibility permitted, it would have long ago been no less effectually destroyed. I shall then, but rather in the way of recapitulation and reference, than in any other, add the little that can be necessary to show the assistance that may always be depended upon from the zeal of the master packer’s office, and the discipline of the guinea corps on the occasion of so necessary a service.
In the catalogue of abuses, judges have their peculiar articles, other high-seated persons have theirs. But, towering above all the rest, one abuse there is, in the profit of which Judge and Co. find their partners, in the very highest and most impregnable situations: in the one House, in the other House, in the Cabinet, in the Closet: yea, even among those whom “the king delighteth most to honour.” I speak of that congeries of abuses, the component elements of which are law sine-cures.
So far as judges alone are concerned, it has been slightly touched upon already: but in consideration of the prodigious increase of strength given to the alliance bipartite between judges and wrongdoers, by the accession of court favourites, and the triple alliance thus formed for carrying on with irresistible force the predatory war against the common enemies, viz. liberty and justice, a few ulterior elucidations, respecting the nature and cementing principle of the alliance, may have their use.
Improbity in Judges, and their high allies—its Hostility to the Press.
Some years ago,* on the examination of a question of finance, I found occasion to inquire in what way, by the taking out of the pockets of the people a given sum of money, the greatest possible quantity of mischief was produced. The result was—by assessing it, in the form of a tax, on the several operations and instruments, the performance and exhibition of which were rendered necessary to a man to enable him, whether in the shape of plaintiff or in that of defendant, to take his chance for justice.
Affliction heaped upon affliction, in the case of him who has wherewithal to comply with the exaction—denial of all relief, exposure, or rather subjection, to all imaginable wrongs, in the case of him who has not wherewithal to satisfy the exaction—such are the shapes, in one or other of which, or both, the mischief manifests itself; and in the latter case, being the case of virtual outlawry, a vast majority of the subjects of the British empire,—say nine-tenths, say, more likely, nineteen-twentieths, subject to limitations and exceptions too particular, and, upon the whole, of too little extent to admit of notice in this place,—would be found. (See Scotch Reform, Letter I. and elsewhere.)
The quantity of money, taken from a man on this account, being, in the mathematical sense, given, i. e. determined—what the appellation employed on that occasion may happen to be—for example, a tax or a fee—as well as what the pocket may happen to be, in which it finds its resting-place after it has gone out of his own—whether that of the public, for example, or that of a judge, or other man of law—is to him, and in respect of the quantity of suffering, of which, in his instance, the defalcation is productive—a matter of indifference. Yet so it happens, that though the quantity of money so raised being given, a tax on law proceedings is by far the worst of all possible taxes, yet, by the money raised on law proceedings under the name of fees, mischief, to an incomparably greater amount has been produced, than by money raised on the same occasion under the name of taxes.
The reason is altogether simple. By the man of finance, at whose instance the money is exacted in the name of a tax, the occasions on which it is exacted are not created, but taken as they are found. But of the man of law, especially in the station of judge, by whose power, and, in some shape or other, for whose benefit, the money is exacted in the name of a fee, it has been in the power to create the occasions on which it is exacted, which accordingly he has done. And in this difference, the immense load of misery, so regularly manufactured by judges, their connexions and dependents, has found its cause. The amount of this mischief has in some sort found its expression, in the difference between the amount of factitious delay, vexation, and expense, habitually created in the technical mode of procedure, styled on this account the fee-gathering, as contradistinguished from that natural mode, which, without a total dissolution of the bonds of society, could not have been by its overbearing antagonist utterly expelled. (See Scotch Reform, Letter I. throughout.)
Of these fees, by the concourse, as usual, of sinister design and accident, masses of emolument, of different bulks, from that of a bare subsistence, to ten, twenty, or even thirty thousand pounds a-year and upwards, exacted by so many different persons, have been composed; and here comes the community of sinister interest, by which the judges of all the high judicatories without exception—and in particular the Chief Justice of the King’s Bench—the master-manufacturer of libel law—and in effect the absolute master of the press—have been linked together: linked with each other, and with some of the most influential members of those supreme assemblies. from which alone remedy to abuse, in this or any other shape, can come.
Where, of the masses of emolument thus formed, the bulk has been to a certain degree moderate (being received in all cases in the name of reward for service,) the reward has been suffered to remain in the pocket of him by whom the service has been performed.
Where it has happened to the mass to swell to such a bulk as to attract the notice of irresistible rapacity in a higher sphere, it has been fastened upon as a prey: and, a comparatively small pittance, though by the experiment proved to constitute an adequate compensation for the burthen of the service, being left to the low-seated individual by whom the service was performed, the remainder has been seized by the high-seated personage, by whom in that shape no service whatever has been rendered, even in pretence; and to whom, in many instances, it has never been necessary, that he should have rendered to the public any the smallest service whatsoever, in that or any other shape.
Of these enormous masses of misery-making emolument, outstripping by far in magnitude, if not in mischievousness, whatever has been produced by the judicial system of any other the most outrageously misgoverned country, some have been seized by judges, and above all by the Chief Justice of the King’s Bench—others having been left in the hands of the crown, have fallen a prey to the vultures that hover about a court. And here we see a natural bond of the closest union between Court and Bench.
At present (it may be said)—whatsoever may have been the case formerly—at present no such sinister interest is created by any of these masses of emolument. For, at present—the maxim having been established, that no mass of emolument in possession, and obtained without breach of law, shall be taken from any man without an equivalent—no man has any interest in the retention of them—neither a judge nor any one else.
To this observation the colour of reason is not wanting, but the substance is. Allowances which, under the spur of reform, have thus been given by the legislature under the name of equivalents, have scarce ever been complete.
Of the masses of emolument in question, viz. those attached to sine-cure or overpaid judicial offices, it is the nature to go on increasing, as population and wealth increase, from year to year; and this, even in the way of natural increase, and setting aside whatsoever factitious increase may be contrived to be given to them by the combined ingenuity of the partnership. But by any allowances that should be given in lieu of them, under the name of equivalents, no such increase would be experienced: they would be fixed sums in the nature of pensions.
Of those ever increasing masses of emolument, not only the possessors but the expectants, know of course much better than to submit to any commutation, so long as, by any means not punishable, it appears possible to avoid it.
Pillaging the future as well as the present, the Gavestons and Spensers of successive ages—nor let the present be forgotten—contrived to obtain in expectancy those masses of ill-collected and ill-bestowed wealth, life after life. Passion and policy have here acted in alliance. Passion seized on the booty: policy rendered it the more secure. The more enormous the prey, the greater and more burthensome would be the compensation necessary to be given for it under the name of an equivalent. So long as the burthen falls on men whose afflictions are productive of no disturbance to the ease of the man of finance, it tells for nothing. [See Protest against Law Taxes.] So long as the burthen continues to be imposed by a tax which, though beyond comparison more mischievous than any other, was not of his imposition, the man of finance had no personal concern in the matter, and how enormous soever may be the mass of misery produced, it formed no object of his care. But to provide the compensation, if that came to be provided, was so much hard labour to him: while of those he has to deal with and to cajole, the great crowd is composed of such as care not what mischief is produced by a tax, or anything else they are used to, but cry out of course against everything of that sort, as of any other sort, when it is new.
The law moreover is a sort of black lottery, a lottery of all prizes indeed without blanks, but the prizes so many negative quantities; instead of so much profit, so much loss; and the same confidence in fortune which secures to a man’s imagination the acquisition of prizes in the state lottery so called, secures to it the avoidance of them in the lottery of the law.
And thus it is that by every continuance given to this species of depredation a fresh obstacle to the abolition of it is opposed.
“You call this economy, do you? Know then, that, by this economy of yours, the mass of public burthen, so far from being diminished, will be increased,” cries the iron-hearted sophist, in whose balance the heaviest load of misery, in which he and his confederates expect not to bear a share, weighs but as a feather.
Turn now to the despot of the press, and consider what in this state of things the plan of policy is which in his situation a man may be expected to pursue. His first object would of course be the affording the most effectual protection to abuse in those instances in which the benefit of it is in the whole, or in part, reaped by himself and his own immediate connexions.
But to protect that same abuse with its benefit against limitation, and even reduction, under the name of compensation, might require support and alliance elsewhere. To protect with effect the abuses, the benefit of which accrued immediately to himself, it would therefore be necessary for him to extend his protection without distinction to all established abuses from which any other man so situated as to be capable of giving him the needful support, derived or could conceive himself to derive in any shape a benefit: in a word, to act in the character of protector-general of all established abuses.
The liberty of the press being their common and irreconcilable enemy, the liberty of the press became the necessary object of their common and interminable war: existing, it was to be destroyed: not existing, it was, so long as possible, to be prevented from coming into existence.
And here we see the knight’s service looked to at the hands of the guinea corps and its squires.
Of the energy and effect, with which this conspiracy among governors against good government has been carried on, diverse exemplifications will present themselves as we advance.
Incapacity in Judges, and their high allies—its Hostility to the Press.
By this copartnership in the profits of misrule, the bond of union, formed as above, between judges and the other leading members of government, is a constant one. But besides this, there is another which, how frequently soever exemplified, may, in comparison of the former, be termed an occasional one: I speak of that in which incapacity—congenial and mutually sympathizing incapacity—is the cementing principle.
Suppose a judge—no matter in what particular respect—incapable of discharging the duties of his office: discharging them ill: or—what constitutes the most palpaple of all exemplifications of incapacity—not at all. If on the part of the suitors to whom such his incapacity has been a source of injury—or, on the part of other persons, prompted by sympathy for their sufferings, or by the pure love of justice, facts indicative of this incapacity, or complaints grounded on those facts, were made public, the consequence might be—an obligation on his part to withdraw from the situation, his continuance in which had rendered him an instrument of such extensive injury.
To any such unfit judge, a free press would naturally be an object no less odious and formidable than a prison to an ordinary delinquent, whose situation had not elevated him above the reach of justice.*
But by the same cause, incapacity, by which a free press is thus rendered an object of hatred and terror to a functionary seated in the situation of judge, it would of course be rendered an object of the like emotions to a functionary in any other situation: to a functionary, to whose apprehension any the least danger were to present itself of his seeing such his deficiency exposed to view.
Men who, to all practical purposes, are seated above the law (and the existence of an indefinite multitude of men self-seated in the situation, is a fact unhappily but too incontestible,) men so circumstanced as they—have nothing to fear from any other quarter—so, as far as they have anything at all to fear from any quarter,—have everything to fear from the liberty of the press.
Accordingly where, on an occasion already spoken of, the recent grand attack was made upon that branch of English liberties, and for the more effectual accomplishment of those purposes (if of any purposes at all) the modern case de famosis libellis was displayed to view, and the fundamental principles of libel law developed, and adapted to existing circumstances—among the propositions laid down upon that occasion was—that in speaking (viz. in print) of any man “placed in a high situation,” to say anything “meaning to infer that” he “is ill-placed” in (such) “his high situation” is “a libel:” and this, even although his unfitness for that high situation be of no worse sort, than that which is not incompatible with his being “fit for the ordinary walks of life.*
If there be any way in which it is possible for the hand of power to afford protection and encouragement to mis-rule—to mis-rule in all its branches—it is surely this: viz. the threatening with the vengeance of the law all such as shall do anything towards holding it up to public view: and towards this end, whether anything, which it is possible to do by the exercise of judicial power, has been left undone, let this doctrine, together with the sentences with which in other prosecutions it has been followed up, declare.
But the persons, at whose instance and for whose protection these sacrifices were made—these sacrifices of public welfare to private convenience—were a junto of “great characters”—some learned, some unlearned—“placed” (but whether well or ill let him pronounce to whom liberty and imprisonment are matters of indifference) “placed,” at any rate, somehow or other, “in high situations:” and, in the instance of some of these great characters, how urgent the demand was for this sort of sacrifice, will, at the peril of imprisonment, appear in another place.
THE EXCHEQUER PACKING OFFICE SUFFICES.
Keeping the liberty of the press, as it were, in a state of constant annihilation (if the expression may be allowed,) being thus, among persons “in high situation,” in these days of unexampled purity, the common object—the one, and almost the only one, in the attachment to which the agreement is among them constant and almost universal—come we now to the convenience afforded by the chief jury-packing office for so necessary an operation.
By the chief jury-packing office I mean, on this occasion, that one of the seven which has for its master packer the deputy-remembrancer of the Exchequer. To this distinction the title of that office is rendered incontestible by two considerations:—1. The permanence, and thence the operations of which it is the result, are, in the instance of that office, avowed by the judge, and defended by him upon principle; 2. The number of juries thus nominated in that office is equal to little less than that of all the juries nominated in like manner in all the other offices put together.
The proposition to be proved is—that though the Exchequer—the judicatory to which this office belongs, is not itself the judicatory in which the operation of crushing the liberty of the press is carried on, yet, for the purpose of that operation, the system of package, and the collection of permanent special jurymen which compose the produce of that system, are no less effectually sufficient, than if the scene of the chief part of the jurypacking business were an office immediately under the judicatory in which the business of crushing the liberty of the press is carried on.
On this head little remains but to recapitulate. Here may be seen the grand house of call for guinea-men: here the receiving-house in which the recruits are enlisted: here the parade on which they are drilled: here the grand muster-roll—the select and secret qualified list—on which they are entered: here the register-office, in which their “connexions,” &c., and thence their qualifications, are registered, and accordingly inquired after by all lips to which the information can be of use.
But why (it may still be said) lay so much emphasis on the Exchequer? If the Exchequer has its two master packers, has not the King’s Bench as many?
Yes: but in the Exchequer, the permanence, which but for actual packing could not have place, is, as hath just been mentioned, irrevocably confessed, or rather professed: in the King’s Bench, no such avowal can be produced. It is in the Exchequer alone that the main body of this corps being in constant service, it is there and there alone that, with certainty, and without effort, the trust-worthiness—the degree of discipline—of each member is known to the whole staff.†
To this office, therefore, it is, that in case of need (when a libeller, for example, is to be punished for calling a man, in “high situation” by his father’s title, or for questioning his fitness for his office,) a solicitor to the crown would send his order—saying, “Pick me out a good dozen for King’s Bench service.”
“Oh—but all this—so far, at least, as concerns King’s Bench, and libel law—is but mere surmise; the work of audacious imagination. In the Exchequer, be it as you say: but in the King’s Bench no such packing can be proved; no such purposed selection ever yet took place. There, at least, all is simplicity; there, all is purity.”
Thus far my objector. But, could even any such negative be demonstrated, still the reasons for the pulling down of all jurypacking offices—for the complete abolition of the guinea trade—for the disbanding of this standing army—this noble army, not of martyrs but of martyrizers—would not lose any thing of their force. Down to this day nothing of the kind has been done. Be it so: but why? Because down to this day nothing of the kind has been necessary. Come tomorrow, and the necessity may come along with it: and so sure as the necessity of the practice comes, so sure the practice comes along with it.
Convenience—slight convenience—has long since sufficed to establish the practice in one judicatory, the Exchequer: and the united forces of self-preservation and vengeance, will they not, in case of need, suffice to establish the same practice in the King’s Bench?
In the King’s Bench, as well as in the Exchequer, the officer, whose practice is thus open to suspicion, actually exists: by him the selection is actually made—made in every individual instance: by him, whether he will or no, a certain quantity of information, relative to the characters and dispositions of the individuals, out of whom he has to choose, is possessed. Thus much is matter of notoriety: and the only proposition, liable to be made a question of, is—whether, in the view of gaining additional information, it be likely that, in case of need, he or those whose interest in the business is more immediate—for example, in a state libel case the solicitor of the crown—will seek for it at the hands of the correspondent officer of that other court, in which the opportunities of obtaining that sort of information are more abundant.
To such a question, can there be any other answer than this? If, of the sort of information in question, there be, in the judgment of those whose interest it is that the judgment be correct, a deficiency in the King’s Bench, to that other court, and that office in it which is best able to supply the deficiency, application will accordingly be made. If no such deficiency, then no such application.
But, if in the King’s Bench there be no such deficiency, then so it is that, in the King’s Bench, the mischief in question exists already in its full force.
In a cause in the Exchequer, inquiry at the hands of the officer by whom those jurors are selected, it is in the books of practice stated (we have seen) as being, on the part of the solicitor on each side, a matter of duty, regularly recurring, and regularly fulfilled. That which, in the Exchequer, it is matter of duty to the solicitor to be inquisitive about, can it, in the King’s Bench, be matter of duty to him not to know?
In the Exchequer, the permanence being, by the chief judge, avowed and justified, the selection—in a word, the packing—without which the permanence could not have been established—is thereby avowed and justified along with it. Of the matter of justification which, in the judgment of the chief judge, is, in the Exchequer, so conclusive, is it credible that there should be any deficiency—and in a case of libel law too—in the King’s Bench?
To confound social order—to destroy the characters of all public men—to defame the justice of the country—to bring government itself into hatred and contempt—Conspiracy to do all this and more—necessity of defeating it:—Ferment raised by wicked and artful men—necessity of allaying it:—Respect for every thing that is respectable, on the point of being shaken off—necessity of fastening it on. All these topics—with a thousand others equally conclusive—all of them in such well-exercised and skilful hands—can they fail of furnishing argument enough, to justify the adopting, in one court, a practice, which, with so complete a success, has so long been established in another?*
Were it possible that, for such unction, the cruise for example, of Mr. Justice Grose’s eloquence should ever fail—fail when addressed, if needful, to his own subordinate—addressed in form to none but the culprit libeller, who for his better instruction in the art of decorum, is about to be sent to school for a few years at Dorchester or Gloucester—addressed in form to none but this one scholar, but moreover in effect to the master packer, who is sitting under the head master all the while—were it in the nature of things that such a fountain should run dry, is not the eloquence of Mr. Bowles, published and to be published, or even though it were not published, always at command?
Thus, then, in respect of law and practice, in the field of libel law, and in respect of the liberties disposed of by it, stands the result. In a case (let us now return to abstractions) in which the personal interests and passions of the judge, or of any of his closest connexions, are most deeply affected, the selection of the individuals, by whom, in the character of jurymen, a check is supposed to be constantly applied to the power of the judge, is as constantly in the power of the very person or persons, to whose power the authority of these assessors is supposed to operate as a check: and this with the fullest and freshest information, not only of their characters and circumstances in every respect, but also of their disposition in relation to this, as well as all other points of judicature that come under their cognizance.
If this statement be correct, what are jurors, in all such cases, but mere puppets?—jury-trial, but a solemn indeed, but disastrous puppet-show? The judge but showman, who, with the intervention of a system of machinery more or less complicated, moves the wires: the judge, who in the sort of case in which his interests and passions are most deeply affected, is in effect judge, sole judge, in his own cause.*
I spoke of decorum. Yes, it is for breaches of decorum that, under a judicatory thus constituted, libellers (and who is there that is not a libeller?) have so recently been crushed by punishments of such unexampled rigour: for a libel on the king, imprisonment for two years: for libels on judges (and let not the climax pass unnoticed)—for libels on judges, parties and judges in their own cause—imprisonment for three years, with et cæteras:—imprisonment to the destruction of livelihood in a scene of secluded penitence.† Nor let this be unremembered—viz. that in the most recent of those cases, perseverance—perseverance in this novel track of rigour—is announced.*
“But, under libel law as it stands—and now that the punishment awaiting a delinquent is understood to be thus destructive,—can you really regard it,” it may be said, “a probable event, that a special jury of Englishmen (who cannot, all of them, be supposed to be regardless of English liberties) will persevere in pursuing a course which, in your view of it, would be so completely destructive of English liberties? For admitting that, under the influence of a sinister interest so constituted, obsequiousness will carry a man a certain length, it follows not by any means that, to the sinister effect of such influence, there should be absolutely no limits. Even from persons thus unhappily exposed to temptation, can depravity, such as that would be, be seriously to be apprehended? In English bosoms is there no such sense as a sense of shame . . . . ?”
I answer—that, to destroy the de facto liberty of the press, as completely as the de jure liberty of it has for ages been destroyed, there needs not any sort of conduct, to which any such word as depravity, or anything like it, is wont to be applied:—in a word, that there needs not, on the part of any one individual breathing, anything which any man can reasonably be expected to be ashamed of.
But, for the reader to be the more effectually impressed with the truth of this proposition, three other matters of fact present themselves as necessary to be borne in mind:
1. That, with libel law in its freshest state—the state in which it is declaredly ready and about to be enforced—enforced by punishments, the rigour of which has just been brought to view—the existence of a de facto liberty of the press, in any sense in which it is capable of operating as a check to misconduct in any shape, on the part of public men, is perfectly incompatible: I mean if the intentions, declared as above, be, with any tolerable degree of steadiness and consistency, pursued.
2. That, by the mode in which judges are in use to direct—and, without exposing themselves to reproach, or so much as complaint, may for ever continue to direct juries, it is rendered difficult, to a degree of hopelessness, for a jury, without setting its face, in a style of marked opposition, against the opinion of the judge, to avoid convicting a man as for a libel, be the paper of a sort ever so necessary to the preservation of English liberties.
3. That, the fixation of the punishment not lying within the province of the jury, no consideration grounded on its magnitude, can operate in such a manner as to afford, to the publisher of any, the most meritorious composition, any chance of acquittal at their hands.
A small sample of libel law, in its freshest state, will form the business of the next chapter.
INSTRUMENTS FOR CRUSHING THE LIBERTY OF THE PRESS.
Doctrines and Rules.
A view of libel law as it is, confronted with a view of what it ought to be, is destined for a separate publication: slight, indeed, and consequently imperfect and inadequate, is the only view that can be given of it here. But, without something under this head, of the most fatal of all the effects of the packing system—of that, in comparison of which all others put together are as nothing—not any even the slightest conception could have been conveyed.
Even the slight sample or two, which have incidentally presented themselves, may have been sufficient to induce a suspicion, and that not a light one—that the treatment which, under the notion of law, has been given—and at this moment is ready to be given—to the press, is, if persevered in with any tolerable degree of steadiness, incompatible with every political—not to say moral—use of it.
A fundamental sophism, from which every other rule, doctrine, or maxim, draws its mischief, is one that, from having never been announced in words, is not the less, but the more, mischievous. It consists in confounding on this ground demand for punishment with demand for disapprobation: or, what comes exactly to the same thing, assuming, that the one being established, the other follows of course. “Is this proper? Is this decent? Is this endurable?” Ask the orator. Reinforcing at every step the intensity of the disapprobation which the appeal thus made to the passions is calculated to call forth: at the same time, in whatever degree, if in any, that hostile sentiment be actually called forth, verdict of guilty is the verdict, the necessity of which is thus constantly assumed, and which by the delusive force of the assumption is but too constantly produced.
Reducing this notion to a determinate proposition, with a correspondent practical rule, let us add to it a few others, expressive as far as they go, of the actual state of libel law: stating, under the head of each, the documents from which it has been deduced. Taken together, they will suffice, it is apprehended, to establish—and with a degree of evidence sufficient, at least, to the present purpose—that, under libel law as it is, prosecution and conviction are the same thing: and that, when a political libel is the offence, the form of jury trial is but a melancholy farce.
1. A written and published discourse is a libel, and every person who contributes to the communication of it, punishable in respect of it, if there be to be found in it any passage or passages, the tendency of which is, in any degree, to expose government, i. e. any member or members of the governing body—considered in that character—to “disesteem.” Rule—Punish whatever tends to bring a man in power into “disesteem.”
2. — or, in relation to any person in any high situation, affording any inference, representing him as ill-placed in it, and questioning his fitness for it. Rule—Punish whatever imputes unfitness to any man in office.
3. — or which has had, or has tended to have, any such effect as that of “prejudicing,” “hurting,” “injuring,” or “violating,” the feelings of any individual:” more especially if his “situation” be a “high” one. Rule—Punish whatever hurts anybody’s “feelings.”
4. In any written and published discourse, whatsoever passage constitutes just cause for dislike, constitutes just and sufficient cause for punishment. Rule—Punish whatever you dislike.
As to the grounds of these doctrines and these rules—viz. the grounds relied on as constituting the warrant for regarding the doctrines as having by competent authority been delivered, and the rules as being by like authority about to be pursued, they are taken from the report, as published in Cobbett’s Weekly Political Register, for the 2d of June 1808, of the trial in the cause entitled “The King against Cobbett:” being an information filed ex officio by the Hon. Spencer Perceval, his Majesty’s attorney-general, against the defendant, “for publishing, in the Weekly Political Register, of the 5th of November, and the 10th of December 1803, certain libels upon the Earl of Hardwicke, Lord Lieutenant of Ireland; Mr. Justice Osborne, one of the judges of the court of King’s Bench in Ireland; and Mr. Marsden, under secretary of state for Ireland: on which information the defendant was tried in the Court of King’s Bench, at Westminster, on Thursday the 24th of May 1804, before the Lord Chief-Justice, Lord Ellenborough, and a special jury.”
The words of the several passages quoted are copied from that Report.
N. B. This libel is the same, on account of which Mr. Justice Johnson, Judge of the court of Common Pleas in Ireland, was afterwards, to wit, on the 23d of November 1805, convicted in the character of the author, on a trial at bar, in the Court of King’s Bench in England.
1. Rule concerning Disesteem.
Proof of the Rule.—Ch. Justice, p. 854.—“It is no new doctrine, that if a publication be calculated to alienate the affections of the people, by bringing the government into disesteem, whether the expedient be ridicule or obloquy, the person so conducting himself is exposed to the inflictions of the law. It is a crime. It has ever been considered as a crime: whether it be wrapped up in one form or another. The case of the King v. Tutchin, decided in the time of Lord Chief-Justice Holt, has removed all ambiguity from this question.”
Thus far the Lord Chief-Justice. While these pages are writing, persons out of number are amusing themselves with rendering what. I hope, appears to themselves, at least, good service to the country, by complaining of abuses, which to them appear as if existing in the government of it: and, to some at least of these persons, these abuses appear to have swelled to such a magnitude, as that nothing short of an alteration in the mode of representation in parliament, can operate as a sufficient remedy. Have or have not such proceedings, and such publications, a tendency not only to “bring the government into disesteem,” but “to alienate the affections of the people” from something or other—forexample, from a parliament composed as at present? If yes, and if, to any person so occupied, it should happen to cast an eye upon this page, I would beseech him to ask of himself whether a cell in Dorchester or Gloucester jail be or be not a fit abode for him—to consider whether he be in a state of fit preparation for a visit of some years length to either of those theatres of lawful reform—and in what manner accommodation may in the most convenient manner be provided, in those or some other boarding-houses of the same class, for himself and the quantity of company whom he ought to have there.
Another hint to reformers:—Among the situations at the disposal of this noble and learned teacher of the arts of decency and candour—situations, the profit of which helps to constitute that part of his Lordship’s remuneration which is composed of patronage, is one, which, in 1797, produced from £1200 to £1300 a-year,* part of the profit of which consists in the letting of lodgings, for which it is part of his lordship’s occupation to provide lodgers. Amidst the demands, which the execution of the law thus delineated would, if executed with anything like impartiality, be productive of, for accommodations in this and other such schools of reformation, would not forecast suggest the endeavouring to secure some of the most convenient of these lodgings by a suitable retaining fee?
2. Rule concerning Feelings.
Proofs.—Ch. Justice, p. 854.—1. . . . “By the law of England there is no impunity to any person publishing anything that is injurious to the feelings and happiness of an individual.”. . . .
2. Ib. “If a man publish a paper, he is exposed to the penal consequences, as he is in every other act if it be illegal; and it is illegal, if it tends to the prejudice of any individual.”
3. Ib. . . . . “The question for your consideration is, whether this paper is such as would be injurious to the individuals, and whether,” &c.
4. P. 858. “It has been observed, that it is the right of the British subject to exhibit the folly or imbecility of the members of the government. But, gentlemen, we must confine ourselves within limits. If in so doing, individual feelings are violated, there the line of interdiction begins, and the offence becomes the subject of penal visitation.”
5. Ib. “If you are of opinion that the publications are hurtful to the individuals or to the government, you will find the defendant guilty.”
On putting together these passages, all out of the same speech—out of the same charge, and that not a very long one—it seems evident enough, that if they mean anything, they mean this—viz. that it is a crime for any man to write anything which it happens to any other man not to like: or more shortly, that if a man publishes what he writes, under Lord Ellenborough at least, it is a crime to write. For, what published book was ever written—and, being written, read—in which somebody or other has not found something or other that he did not like:—in plain language, that he did not like; or, in the language of avenging sentimentality, that was not “injurious,” “prejudicial,” “hurtful,” or “violational?”—add, for further enrichment of the language, vulnerary to him or to his feelings?
And how am I to know whether what I am writing, and meaning to publish, will, or will not, meet with any man to whose “feelings” it will be “injurious,” and so forth? Why, by his prosecuting me or not prosecuting me. And if he prosecute me, what will be the consequence? Why, that I have committed a crime, and must be convicted of course: for if his taking upon himself the expense and vexation of carrying on a criminal prosecution be not a proof that his feelings have been injured, prejudiced, hurt, or violated, nothing else can be. Therefore, as already observed, admit but this doctrine to be good law—(and, coming from the source from which it comes, how can it be otherwise?)—prosecution for a libel is in every case itself evidence that the paper prosecuted for is a libel, and that evidence is conclusive.
The criterion—it must be confessed—the criterion thus afforded, is an extremely simple one. No man can fail—or, at least, no man can long fail—to know, whether he is, or is not, under prosecution. If, then, for anything that I have written, I am not yet prosecuted, what I have written is not as yet a libel: if, for anything in that way, I am already under prosecution, then it is a libel. Such being the criterion, to the noble and learned inventor, nothing—it may well be presumed—can be more satisfactory. But to us without doors, who are as yet out of jail, and who, if we did but know how, had rather continue at large than be locked up in one, is there any and what course left open, for learning, at any earlier point of time, whether this or that article, which it would be satisfactory to us to see made public, will or will not be productive of an effect which to us would be so serious a one.
A high-sheriff, for example, or other chairman, of a county or other meeting, in which a set of resolutions are voted, imputing either “folly or imbecility,” or corruption, to any of those right honourable persons to whom those qualities, or some of them, have of late, in one or other meeting of that sort, been now and then imputed—any such presiding character, though not a “great character,” wishing to give to these resolutions a certain degree of publicity, and at the same time not wishing to pass his time in a prison, though it were for no more than three, or even for no more than two years—what is he to do?
For knowing what, on a given occasion, a man’s feelings will be—or rather, and to come somewhat closer to the point, what on that occasion he will declare his feelings to be—I know of one course, and but one, which is—to put the question to himself. On this principle, to save circumlocutory description, I will venture to submit to the consideration of such gentlemen as it may concern, the form of a Note, which, short and simple as it is, may, it is humbly hoped, be found to be not the less well adapted to the purpose:—
presents his respectful compliments to Lord Castlereagh, and begs the favour of being informed, whether the “exhibition” of his lordship’s folly, or his lordship’s imbecility, or his lordship’s corruption, should it take place, would be “prejudicial,” “hurtful,” “injurious,” or “violational” to his lordship, or to his lordship’s feelings.” The like to the right honourable Spencer Perceval, &c. &c. &c.
To any such chairman, who, though not “a great character,” will, at any rate, be a distinguished one, should it happen to be apprized of the qualification which, from certain exemplifications (whereof presently* ) that have been given of the magnanimity of the said Mr. Perceval, may by implication be understood as being allowed to be, in a certain sense, and under certain restrictions, capable of exempting a man from the lot to which a liberty of this nature would otherwise so justly doom him—should it happen to him, accordingly, to be capable of making the proper responses to the catechism formed by that no less religious than high-born and high-seated gentleman—and in particular to his grand Latin question, Quo patre natus—wrapping himself up in Mr. Perceval’s virtue as if it were his own; what may also happen to him is—to turn aside with disdain from this humble but well-meant endeavour to save him from what it may happen to him not to like. But whatsoever may happen to be the security, real or imagined, of a person so distinguished, the resource may not be altogether beneath the attention of those who, like myself, belong to the undistinguished herd: I mean the printers who propose to print, the booksellers who propose to sell, any such resolutions, as well as the readers, to whom in reading of them it might happen not to take sufficient care to keep their tenor and purport to themselves.
3. Rule concerning Unfitness in high Situations.
Ch. Justice, p. 857.—After having, on the occasion of a sentence, mentioned above, undertaken, as above, to enumerate the “libels” contained in that one sentence, coming to that which in this list happens to occupy the second place—“He admits,” says his Lordship, speaking of the libeller—“he admits this noble person” (Lord Hardwicke) “to be celebrated for understanding the modern method of fatting a sheep, as well as any man in Cambridgeshire.”—“Now, gentlemen,” continues the Lord Chief-Justice, “what does this mean? Does it not clearly mean to infer, that Lord Hardwicke is ill-placed in his high situation, and that he is only fit for the common walks of life.”
Thus far the Lord Chief-Justice.—Among the persons just spoken of as being suspected—and surely not altogether without apparent cause—of endeavours used to bring the government into disesteem, I have observed some, by whom declarations have been made, expressive of an opinion—and that, too, pronounced still more “clearly” than in the way of “inference”—concerning Lord Viscount Castlereagh, and the now right honourable Spencer Perceval—the same right honourable person whom we then observed officiating, we have seen how, in the character of his Majesty’s attorney-general—as being respectively somewhat “ill-placed” in one of their “high situations.” After passing eighteen months in prison for one of the two libels thus uttered, and made public, the libellers, of whom I am speaking, are they prepared to pass another eighteen months, in the same place and condition, for the other of these same libels?
Being a man that writes, or even though he be but a man that thinks—whosoever prefers liberty to imprisonment, safety to destruction, “let him think of these things.”
“To doubt the fitness of him whom the sovereign hath chosen, borders near on sacrilege.”
Such is the rule laid down by some learned law-lord, Chief-Justice of the Emperor’s Bench, in the time of the Emperor Justinian—“Sacrilegii eniminstar est dubitare an is dignus sit quem elegerit imperator.” C. ff. 9, 29, 3.
Of the constellation of “great characters” in “high situations,” by whom the rule thus copied, and those others that match so well with it, have been called for and laid down, let any one who dares, and who (to use the words of the Lord Chief-Baron) “thinks it worth while,” say—that they, or any of them, are “ill-placed” in, or “unfit” for, those their respective situations.
Thus much, however, may be a question—though alas! it is but a speculative and barren one—whether, for their own feelings at least, they are not, more particularly some of them, rather unfortunately placed in point of time. In England, in these our days, at this early part of the nineteenth century, their “feelings” are forced to content themselves with comparatively scanty gratifications: gratifications, such as may be afforded, for example, by the spectacle of a judge driven off the bench, and a few years’—as yet no more than a few years’—imprisonment bestowed upon a few paltry booksellers.
And without seeking to send them, or any of them, so far back as to those imperial times from which this rule of theirs was with so much fidelity transcribed, or even of those of our own first Defender of the Faith, who even without the benefit of the act called, in the newspapers, sometimes the cutting act, sometimes the Ellenborough act, enjoyed in the course of his life the deaths of no fewer than 70,000 of his subjects in the character of criminals—had the noble and learned godfather of that law been as free to choose the time as he is the place of his circuits, would not the western circuit, anno 1685, have been a choice more congenial to “feelings” such as his, than any circuit can now be in these degenerate days, ubi pro duritie temporum, as the learned anatomist so feelingly laments, vivos homines dissecari non licet: when, in plain English, such is the hardness, such the ferment of and in the times, that men cannot be found to be cut up alive for the amusement of learned eyes: so that noble lords and honourable gentlemen, who have a taste for torture (understand for witnessing it, not for feeling it,) are reduced to content themselves with such inferior, yet never-to-be-parted-with gratifications, as the agonies of bulls, dogs, cats, and horses can afford.
4. Rule concerning Dislike.
Follows a list of qualities, which, on the supposition of their being to be found in a discourse of any kind, have been stated as being of a nature to excite, in the breast of any person by whom it is heard or read, a sentiment of disapprobation or dislike: the existence of which sentiment has, by the chief-justice of the King’s Bench, or by the attorney-general, with the concurrence of the said chief-justice, been stated as constituting a sufficient warrant for pronouncing such discourse (it being consigned to writing) libellous, and for punishing with any number of years imprisonment, besides other punishments, every person who, in any way, has contributed to the communication of it:—
1. Want of fairness. 2. Want of liberality. 3. Flippancy. 4. Deviation from decency. 5. Unbecomingness. 6. Impropriety. 7. Slanderousness. 8. Ill-nature. 9. Want of candour. 10. Tendency to ridicule. 11. Contradictoriness—viz. with reference to matter of opinion advanced by another person.
Follow now the correspondent passages serving as grounds of this doctrine—proofs of the existence of the corresponding rule:—
It cannot with reason, and therefore, it is presumed, it will not be expected, that, on the occasion of every one of these qualities, either the chief-justice, or, under his allowance, the attorney-general, shall, in precise logical form, be seen exhibiting, and re-exhibiting to the jury, an argument in any such words as these—viz. this quality exists in the discourse in question—the quality, and, in respect of it, the discourse, will be regarded by you with disapprobation or dislike—therefore, in consideration of such disapprobation or dislike, even although the discourse should be found to contain no other passage in it, having the effect of exciting, in your breast, the like sentiment, you will regard yourselves as bound to join, in pronouncing against the defendant, the verdict guilty.
That such, throughout, was their intention, may surely be regarded as placed sufficiently out of doubt by the following considerations:
The purpose, and sole purpose, for which, on that occasion, the defendant was brought before the jury, was—that it might be ascertained, whether, in respect of the discourse in question, he was, in the character of a libeller, guilty, and as such punishable. In any other view than that of contributing to this effect, had anything been, either by the chief-justice or the attorney-general, said of the discourse in question, it would have been irrelevant: and not merely irrelevant, but insidious and injurious; having, for its object and tendency, the causing a man to be convicted, as if it were criminal, on account of a portion of discourse which, in their own opinions, was not criminal. Not but that, on several of these occasions, the passage taken for the subject of animadversion is, in express terms, pronounced, by one or other of these official persons, “a libel” or “libellous:”—and since, in this respect, no line of distinction is drawn between any one of the passages so animadverted upon, and any other, it will surely not be regarded by anybody as a question open to dispute, whether, among all these several qualities, and all these several corresponding passages, there were any one, in respect of which it was not part of the design and endeavour, of the official persons in question, to cause the passage to be by the jury reputed libellous, and the defendant dealt with accordingly in respect of it.
The qualities, successively ascribed to the various parts of the printed discourse, and, in respect of which, it is supposed to be the design and endeavour of the spoken speech, to cause the discourses to be considered as libellous, are hereinafter designated and introduced by the words quality or qualities.
The passages respectively adduced to serve as proofs, that, on the occasion of each such respective quality, such was the design and endeavour, are designated and introduced by the words proof or proofs.
I. Qualities.—1. Want of fairness. 2. Want of liberality.
Proof.—Attorney-general, p. 827. “Now, Gentlemen, is there anything in all this that can be called a fair and liberal description of a public character . . . . . ?”
II. Qualities.—3. Flippancy. 4. Deviation from decency.
Proof.—Attorney-general, p. 827. “Gentlemen, I have already adverted to the indecency and flippancy of many expressions made use of in this libel. If this libeller had been hurried away with the temptation of saying a flippant thing, I should not have thought it a subject of criminal prosecution. But, in the case before you, it is criminal, as indicating the spirit with which it was written, and as being descriptive of the mind of the man at the time he was making them. I would not, however, be understood to say, that even in the warmth of discussion upon public men and public measures, decency of language ought not to be preserved, and that any deviation therefrom is not punishable. . . . .” [Here the doctrine in question is directly avowed: by the attorney-general avowed, and by the chief-justice never contradicted: viz. that for every written discourse to which a deviation from decency can with propriety be imputed, a publisher is punishable.]
III. Qualities.—5. Unbecomingness: and again Flippancy.
Proof.—Attorney-general, p. 820. “Surely no one who has the least liberality of feeling, could think it becoming to taunt such a gentleman as Mr. Addington.” [Taunt him, viz. by naming him by his father’s title.] P. 828, “I again say, that for any publication calling Mr. Addington, Doctor Addington, or any flippancy of that nature, standing by itself, I should think it beneath the dignity of that right honourable gentleman to make it the subject of a prosecution.” N. B.—Beneath his dignity only, not above his power. Learn we hence, that if at this moment there exists out of a jail any such person as a newspaper editor, or a political writer, on any other than one side, it is owing to the joint magnanimity of “such a gentleman” as Mr. Perceval, and “such a gentleman” as Mr. Addington.
IV. Qualities.—6. Impropriety (as intimated by the word ought.) 7. Slanderousness. 8. Ill-nature.
Proof.—Attorney-general, p. 829. After speaking of divers passages in which Lord Hardwicke had been spoken of as being “a good father, a kind husband, fond of literature, and agricultural pursuits—” “Qualities like these” (continues he) “ought to have made the libeller pause, before he ventured to attack such a chahracter.” . . . . . . “Gentlemen, you must shut your eyes—if you do not see that these amiable qualities are attributed to Lord Hardwicke, with a slanderous, with an ill-natured meaning.”
V. Qualities.—9. Want of candour.
Proof.—Attorney-general, p. 830. “Will any man believe that there is any degree of candour in saying, that all that has been done by the British government for Ireland, is to send them a sheep-feeder from Cambridgeshire, and a strong-built chancery-pleader from Lincoln’s-Inn, when I tell you that . . . . Ireland . . . . is defended,” &c. &c.
Learn we hence, that whatever “degree of candour” there may happen to be in any given discourse, it is in the power of the honourable Spencer Perceval—(but whether in his character of Spencer Perceval, or in his character of attorney-general, that we are left to learn as we can)—at any rate in the power of somebody—and the safest conclusion seems to be, in the power of any and every man that is in power—to divest the discourse of such its candour, and thereby subject the author and publisher of it to punishment: and this by so easy a process as “telling” the jury anything that shall have the effect of a contradiction to this or that part of the discourse.
On this head, not a particle of Mr. Attorney-general’s law, howsoever objected to (as we shall see) by the defendant’s counsel,* is dissented from by the Chief-justice: on the contrary, from what immediately follows, let any man judge, whether, by implication at least—by necessary implication—it has not the whole of it, been confirmed.
VI. Qualities.—10. Tendency to ridicule.
Proof.—Chief-Justice, p. 849. Upon the above and other passages, the observation of the defendant’s counsel (Mr. Adam) had been, p. 842, that “if the doctrine so laid down were admitted . . . . the freedom of discussion, relative to public men and public measures, would depend—not upon a point of right, but upon the taste of the attorney-general:” and that “the controul which the attorney-general is” [thus] “desirous of putting upon it [the liberty of the press] would go to extinguish it for ever,” p. 842.
“Ridicule,” he had afterwards contended, p. 849, “is a weapon which may be fairly and honourably employed, especially when it is in the true spirit of English humour, and for an object purely of a public nature.” After speaking of the nick-name of Carlo Khan, formerly given to Charles Fox, and the print of a colossus, comprehending all Scotland within the stride of its patronage—when, after adducing these examples, he goes on to say, “Lord Hardwicke is again represented as devoted to agricultural pursuits.” . . . . he finds himself thus interrupted by the Lord Chief-Justice—
“Do you maintain that a person has a right to ridicule his neighbour?”—Mr. Adam.—This is an information for a public libel, and not for private ridicule. Lord Ellenborough.—“I suppose you have some authority. I do not wish to restrain your arguments, but it is a doctrine which never was, and never can be, maintained.”
VII. Qualities.—11. Contradictoriness; viz. when manifested, in terms of a certain degree of strength, towards some proposition or propositions, that have been advanced by some one else. [N. B.—In the instance in question, it was a mere matter of opinion, relative to the state of the nation: not any specific matter of fact.]
Proof.—Chief-Justice, p. 856. Afterwards, in his charge, speaking of one of the sentences in the paper, his Lordship says, p. 856, “Now the libels in this sentence are these”—thereupon, coming to one of them, he proceeds, and exclaims, “Is it to be endured, that it should be said of any person, but more especially of a person sitting in the capacity of a judge, that he had poured a broadside upon the truth of the fact?”—N. B. Sitting in the capacity of a judge. Yes: so the judge in question, Mr. Justice Osborne, was: but how? not hearing a cause, but haranguing upon politics.
The disapprobation excited by this expression, in the bosom of our Lord Chief-Justice, was, it seems, of such a strength as to be past endurance. A similar, if not exactly equal, sentiment is what he assures himself of finding prevalent, in the bosoms of the jurors (the guinea-men,) to whom he is addressing himself: and on this sentiment it is that he relies as sufficient of itself to entitle him to expect, at their hands, a verdict of “guilty,” enabling him to subject the victim to any number of years’ close imprisonment in a scene of solitude.
The word “fiction” will of itself suffice to satisfy any person, who can endure to look into Blackstone’s Appendix, with the corresponding chapters, in this view, that in the universal scramble for fees, of which the jurisdiction of the Westminster-hall courts in its present state is the result, the war was carried on in no other manner, and by no other arms, than by broadsides, which then were, and still continue to be, “poured upon the truth of facts.” If, then, anything like consistency were to be expected among persons in such “high situations,” so far exalted above all need of consistency, and all fear of shame, long ago would every man, who has ever vended, or in any other way contributed to the dissemination of the contents of Blackstone’s Commentaries, have been prosecuted by the Hon. Spencer Perceval, and convicted, as of course, by one of Lord Ellenborough’s juries.
Signing a notorious falsehood—is this pouring a broadside upon fact? If so, is there a term, in which broadsides are not poured upon facts by hundreds, not to say thousands—poured by the very hand of this very judge, (with fees for the same) or to his profit, and under his orders?
By the smoke of these broadsides, have not the paths of judicial procedure been converted into—what they were meant to be converted into—a jungle, penetrable to the eyes of tigers, impenetrable to the eyes of suitors, who, such of them as do not perish in it, are dragged through it?
Before he was what he is—this noble and learned Lord Chief-Justice—was he not an advocate? Does not the occupation of an advocate consist in pouring broadsides upon the truth of facts—of whatsoever facts are set up for him as a mark by the attorney, who brings him his brief with this or that number of guineas marked on the back of it?
Was not he a special pleader? Knows he not what a sham plea is?
The distinction between the cases in which falsehood is either allowed of or compelled, and those in which it is made punishable, had it ever—has it to this day—any better object, than the enabling well-paid marksmen to pour broadsides upon the truth of facts? (Scotch Reform, Letter I. Device 10. Mendacity-licence.)
What is endurable—yes, and endured, and with as much complacency as if vice were virtue, and falsehood necessary to justice, is—that by these guardians of public morals, broadsides should be poured without ceasing—poured upon the truth of facts:—what is not endurable, is—that they should be told of it.
Decency and candour! What important words! How necessary is correctness to the conceptions which it may happen to a man to have annexed to them! What is there that does not depend upon it? Open one report more, which shall be quoted presently, and you may see the whole fabric of English liberty hanging upon the import of these two sounds. Note well the fineness of the hair: observe well the thinness—the mathematical thinness, or rather phantasmagorical tenuity of the partitions, which at this hour divide liberty from thraldom. Observe how pleasantly the hair, if not sufficiently cut through already, may be cut through at any time; nobody, but those employed in cutting it, knowing or caring anything about the matter.
(Campbell’s Nisi Prius Reports, Easter Term, 48 Geo. III. 1808, p. 359, Rex v. White, and another, London sittings after Easter Term, 48 Geo. III. Before Mr. Justice Grose.)
Information (ex officio) “by the Attorney-general against the proprietor and printer of a Sunday Newspaper, called The Independent Whig, for a libel upon Mr. Justice Le Blanc, and the jury before whom the captain of a merchant ship had been tried for murder at the Old-Bailey . . . . .
Grose J. said it certainly was lawful, withdecencyandcandour,to discuss the propriety of the verdict of a jury, or the decision of a judge; and if the defendants should be thought to have done no more in this instance, they would be entitled to an acquittal: but on the contrary, they had transgressed the law, and ought to be convicted, if the extracts from the newspaper set out in the information contained no reasoning or discussion, but only declamation and invective, and were written not with a view to elucidate the truth, but to injure the characters of individuals, and to bring into hatred and contempt the administration of justice in the country.”
“The defendants were found guilty on this and a similar information, and sentenced to three years’ imprisonment.” Thus far the reporter. The similar information was for a similar libel on Lord Ellenborough, the Lord Chief-Justice.
You, to whose imagination any such imprudent fancy should at any time present itself as that of taking for the subject of free “discussion,” under favour of any such licence, as above, the “decisions,” or the conduct of an English “judge,” would you know whether the expressions that have presented themselves to your pen are consistent with the rules of “decency and candour?” Go to the house of penitence at Dorchester or Gloucester—repent there for three years, or any such increased number of years, as for the allaying of the increasing ferment shall have been deemed necessary* —repent, and when your course of penitence has there been run through, perhaps even at the commencement of it, when beyond hope of mercy, it has by your sentence been announced to you—then it is that you will be informed, and know all that it is intended you shall know. And what is that? Not by what means those rules may, in all cases, be observed, but by what means, in one instance, they have been violated.
Behold then, in the King’s Bench, the royal school of decency: a school, the discipline of which has however this to distinguish it from ordinary schools—for example, from the other royal school within view of it—viz. that whereas, in Dr. Carey’s school, instruction comes first, and then, in case of transgression, if the transgression be wilful and perverse, perhaps correction afterwards,—stripes, say half a dozen: in Lord Ellenborough’s school, correction, or, peradventure, under the name of correction, destruction, comes first; and it is from this correction or this destruction, that, for the first time, and without the possibility of learning it from any other source, or at any earlier period, the scholar derives the satisfaction of learning how he ought to have behaved himself.
Terror issuing from the Darkness of the Doctrines.
If, by competent and acknowledged legislative authority, and in and by any determinate assemblage of determinate words, such as are the words of every act of parliament, maxims, even such as those that we have been seeing, were consigned to writing and established—established though it were in these very words—the very words that we have just seen—the condition of Englishmen would be a condition of security, in comparison of what it is at present.
But by no such authority, in no such determinate form of words, has this part of the rule of action as yet been, or will any part of it ever be, established and fixed, that Judge and Co. are able to prevent from being thus fixed.†
Under such law—(the abuse here made of the term law must be tolerated, for it is inevitable)—under such law, security may be talked of, and even fancied, but, for any man who either publishes a newspaper (not to speak of pamphlets,) or contributes to the communication of its contents, security itself cannot, with truth, be said to have existence. Thus much for actual danger.
Now as to alarm—terror—the inseparable consequence of opinion of danger, on this as on every part of the field of law, in which the legislator—dupe or accomplice of Judge and Co.—has refused to act, fear makes law, as among the heathen it made Gods.‡
The Lord Chief-Justice of the King’s Bench—would he think this “decent? becoming? proper?”—would he “endure” it? Might not his “feelings” be “hurt,” wounded, “violated,” “prejudiced,” or “injured” by it? Mr. Attorney-general—Mr. Chancellor of the Exchequer—the First Lord of the Treasury—any of the “great characters”—their high situated connexions—any one of these exalted persons, to whose ear a rumour concerning any part of the contents, or of the supposed design, of this or that passage in my projected pamphlet, should happen to have found its way, may it not happen to them, or any of them (Mr. Attorney-general excepted) to intimate as much to Mr. Attorney-general; in which case prosecution may, and, if prosecution, conviction and perdition will, to a certainty, be my doom. To publish, or not to publish? To write, or not to write? Of this sort will be the question, which, under the darkness visible at which we have been taking a glance, any man, into whose mind any such speculative, theoretical, and jacobinical conception should have entered, as that of attempting to bring to light any abuse, the theatre of which is to be found in any part of the system of judicial procedure, will of course be tormenting himself. The answer will be determined—partly by the incidents which chance has presented to his notice, partly by the strength or weakness of his nerves.
In this state of law, bribery excepted, among those which concern the administration of justice, exists there that enormity which a judge—I mean an English judge, one of the legislating twelve—by committing, or even by confessing, would expose himself to any the slightest danger—I do not say of punishment—the supposition would be too extravagant—but so much as of any expression—any the faintest expression of regret—such as majorities know so well how to frame—that it had not been otherwise? Confessing, would he obtain credence?
Not long ago comes out a newspaper, announcing a series of letters, to be addressed to the Lord Chief-Justice of the King’s Bench:—letters, which were to have presented to his lordship’s notice abuses upon abuses, the scene of which was to have been laid in his lordship’s court, or in which, at any rate, practitioners in that court were to have been represented as actors. In the character of an introduction, the first of the announced letters crawls out:—no other follows it.—Whence this sudden death? That which history refuses to disclose, must be supplied by another hand. Between the first letter and the day which should have brought forth the second, in the hour which should have been that of repose, the pillow of the publisher receives a shake, the united curtains separate, and behold! at the bed’s feet a grisly spectre—wrapt up in clouds of artificial hair, ill concealing the streams of gore which are seen issuing from wounded feelings. In its uplifted hands is displayed a terrific scroll, exhibiting a plan and elevation of each of the two lately consecrated abodes of sequestered penitence, with Mene tekel and Utrum horum in flaming capitals, garnished with fragments of sentences about contempt of government, high situation, et cætera, and so forth, scrawled upon the walls.
After such warnings—and where is the literary pillow that is not visited by them?—suppose for argument’s sake—and it is only for argument’s sake—suppose Lord Ellenborough to have done any of those things which Lord Macclesfield, or even any of those things which, alas! Lord Bacon did before him—suppose him to have squeezed clerks as Lord Macclesfield did masters:—suppose him, like Lord Macclesfield, to have sold places under himself which it belonged to him to check—or (supposing it moreover unlawful)—suppose him, instead of selling them to a disadvantage, to have listened to the suggestions of a more improved economy, and pocketed the whole profit in the lump.
Suppose—but what end would there be to such suppositions?
In such a state of things, among those elected guardians of justice, if any such there be—to whom economy, so displayed, and on such a theatre, would appear a fitter object of reform than imitation or confirmation, is there any one that would hear of it?—is there any one that, in print at least, would tell of it? Not unless a situation in Gloucester or Dorchester jail—and that a safe and permanent one—safe as safe-custody could make it—permanent as a lease for years could make it—had become the object of his choice.
This, then, is among the effects—and is it not among the uses—not to say the objects—of libel law?
The purity of the Bench an article—a fortieth article—in the creed of Englishmen:—orthodoxy, on this ground, even where unpaid, universal. Yes: but behold the cause of it.
Such being the bar opposed to beneficial discovery by universal terror, suppose it broken through at all, by whom will it have been broken through? By the candid, the correct, the moderate? Possibly;—should haply these virtues be found at any time in company with almost unexampled fortitude. But how much more likely by the uncandid, the incorrect, the violent? Vices like these, when exemplified in the supposed libel, have they, or have they not, any such effect as that of enhancing the mischief, if any, which is liable to be produced by it? The answer is not altogether clear: but, at any rate, it is on the supposition of the affirmative, that the proportions, generally given to the intensity of invective, seem to be grounded.
But it is truth, not violence, that has been the real object of terror and hostility, to the creators and preservers of English libel law: and thus it is, that while, under the spur of indignation and desperation, violence and exaggeration burst forth, truth—gentle and simple truth—remains at the bottom of her well, without daring to peep out.
WANT OF ADEQUATE OBSEQUIOUSNESS MORALLY IMPOSSIBLE.
Obsequiousness found unavoidable by a veteran Advocate.
In any published written discourse, taking for its subject the propriety of public measures, or of the conduct of public men, whatever merits disapprobation, presents an adequate demand for punishment. This principle being either expressly laid down or assumed, and juries habituated to accede to it, and act in conformity to it, it seems not very easy to conceive what that published discourse can be, to which, if written on any such subject as that in question, a jury, even though it were not a draught from the select and secret qualified list, would, on any tolerable ground of probability, be expected to refuse to attach a verdict of conviction. Yes: if so it be that, in the alleged libel that lies before them, there be not one of them that can find an expression or a word which he feels himself disposed to disapprove: viz. neither on any such score as decency, or liberality, or candour, or propriety, and so forth, as above:—and what if he can not? Only that in that case, for supporting a verdict of conviction, then some other ground must be looked out for, of which, while such doctrines as have just been seen are acceded to, whether it be possible there should be any deficiency, the reader may now judge.
If, in the event of his entertaining, in relation to any passage thus brought under his review, any such emotion as that of disapprobation or dislike, it would afford to his feelings any gratification to be contributory to the subjecting the delinquent to punishment, in such case, whether a juror will not find, in these established doctrines, an amply sufficient warrant, for the affording this gratification to the irascible part of his frame, may be seen already.
But, whether inclined or not inclined, will it be in his power to avoid it?—In his power? physically or metaphysically speaking, yes:—but, to keep clear of metaphysics and every thing that ends in—ism, practically speaking—whatever be the state of a juryman’s inclinations, can there, for any proposed writer on politics or legislation, which is as much as to say for any proposed libeller—can there be any rational hope or prospect, of witnessing, on the part of any such juryman, any such forbearance?
The degree of probability in question cannot, it is evident, but be, in a high degree, influenced, even if not in one event converted into moral certainty, by the mode of address pursued by the directing judge: by the degree of freewill which it may please this creator to have left or not left to his habitually obedient creatures. To learn, if possible, a thing so necessary to salvation, let us open the book of history, that in it we may behold the words of prophecy, and read in it the eventual doom that is in store for us.*
“No question is made,” says the Lord Chief-Justice, “as to the publication itself being a libel:”—the fact is incontestable, but the cause, what can it have been? The inquiry is a curious one: and in the answer may be seen a confirmation of the moral impossibility of any verdict other than that of guilty at the hands of a jury of guinea-men, not to say of any men, so directed.
On the trial of the other defendant, in regard to some parts at least, if not the whole, of this multifarious libel, a “question” of this sort had, as we have seen, been made: made, and by the same learned gentleman, who, after having been leading counsel for the political writer, officiated now in the same character for the culprit judge. The question having been made then, how comes it not to be made now?
On that former occasion, the authority which the learned counsel had to contend with, was no other than that of a single judge: on this present occasion, the authority before which he has to plead, is that of the entire judicatory:—-a judicatory, composed of four judges, of whom the judge in question, though in authority the chief, was in number no more than one.
“Do you maintain that a person has a right to ridicule his neighbour . . . . ?”
In the report given of this trial, the words pronounced by the noble and learned Lord Chief-Justice are reported, or professed to be reported, by the reporting scribe:—the tone, the countenance, the deportment, by which the interruptive interrogation was accompanied, were not—any of them—nor could they have been—included in the report.
Whatsoever was the cause—whether an acquaintance with the persons and dispositions of the guinea-men to whom the defence would have been to be addressed—a consciousness that under such direction obsequiousness was a virtue not confined to the jury-box—or a casual deficiency of nervous power, such as learned advocates for liberty, no less than the unlearned, are liable to—or that, even where there is nothing dangerous, there is something unpleasant, and to polished feelings, grating, in kicking against the pricks, and pressing against the feelings of official superiors, whose countenances are day by day to be encountered—so it is that there being, according to the learned counsel’s own statement at least, nothing more at stake than “the liberty of the press”—that liberty which, as he had observed, “has ever been held as one of the first principles of the constitution”—nor from the doctrines, against which, on that former occasion, he had with so little fruit been contending, any worse effect to be apprehended, than the extinguishing of “that liberty for ever”—whatsoever may have been the cause of the abandonment, so it is that before this reinforced, and de jure at least superior, judicatory, the contest was not renewed.
On the part of a trained Juryman, Unobsequiousness still more hopeless.
But, if such was the no-resistance made by a sturdy veteran,—possessing, too, in the plea of professional duty, an excuse such as might have been expected to disarm resentment, call forth sympathy, and edulcorate feelings in the bosom even of the most obdurate judge—what, under such direction, could have been or ever can be—expected, for the relief of a defendant libeller, or for the preservation of the about to be “extinguished liberty”—what, I ask, can, to any such purpose, be, with any the least colour of reason, expected, from the firmness—let us not say of the craving guinea-man, who, in one unacceptable verdict, beholds the extinction of the race of his expected guineas—but of any gentleman habituated (as by the discipline of the Blackstone school all gentlemen are habituated) to regard in every word that cometh from the mouth of one of the reverend and learned twelve, the rule of legal faith—the unerring standard of rectitude?
SUCH JURIES WORSE THAN NONE.
Star-Chamber preferable to a covertly-pensioned Jury.
To a mixed tribunal, containing, along with the judge, a jury thus constituted, and thus directed, two other tribunals, each of them more simple in its composition, might, in cases of libel law, so long as libel law stands as it is at present, viz. without any determinate set of words for the expression of it, be substituted (it should seem) and with no inconsiderable advantage to liberty and justice.
1. One of them is—a Star-Chamber: in a word, the ancient judicatory of that name, revived, with or without amendments.
It was in that judicatory that libel law, as it stands at present, received its form and tenor: viz. in so far as form and tenor can be attributed to a species of law—viz. unwritten, alias common, alias judge-made law—of which the essential character is the not having any tenor at all belonging to it, nor consequently any purport of any such solidity as that certainty and safety can be built upon it. It was in that judicatory that the earliest cases extant—being those which, in the character of the foundations of libel law, are continually referred to—were determined.
Of that transcendent judicatory, the acknowledged fruit of which was “the keeping of all England in a state of quietude,” pure of all fermenting matter, one great advantage was the being composed altogether of persons in “high situations”—“great characters”—whose greatness, so long as it pleased the fountain of all greatness, was placed out of all danger of failing, being fixed by office.
Though, under special jury law, it does belong to the defendant to choose, out of 48 persons fixed by a very different choice, by what 12 he shall not be tried, it does not, under any law, belong to a defendant to make choice of any of the judges by whom he shall be tried. But, for my part, supposing, for argument’s sake, that it rested with my choice, more willingly would I be tried, and (being of course convicted) sentenced, by a Star-chamber composed of the same great characters as heretofore, than, under such direction, tried before a jury, of whom it should happen to me to know thus much and no more—viz. that they were so appointed and so paid:—a sentence all the while awaiting me from such a source, and of such a nature, as by the examples that are under everybody’s view, has been rendered so intelligible.
In the case of the libel in question—the libel composed of the letters signed Juverna—the “great characters,” mentioned in the title of Mr. Cobbett’s trial as objects of that libel, are “the Earl of Hardwicke, Lord-Lieutenant of Ireland; Lord Redesdale, Lord High Chancellor of Ireland; Mr. Justice Osborne,” (the alleged “pourer of broadsides”) “one of the judges of the court of King’s Bench in Ireland; and Mr. Marsden, under-secretary of state for Ireland.”
To these may be added—as so many persons, over whose wrongs a veil had been drawn, partly by their own magnanimity, partly by that of “the Attorney-general of our present Sovereign Lord the King, who for our said Lord the King was then and there in that behalf in his proper person prosecuting,” (and on such an occasion what more proper prosecuting “person could there have been?”) viz. “the honourable Spencer Perceval,”—“the Hobarts,” (meaning, doubtless, the then commonly called Lord Hobart, now properly called Earl of Buckinghamshire)—“the Westmorlands,” (meaning the then and present Earl of Westmorland)—“the Camdens,” (meaning the then and present Earl Camden)—and the then right honourable Henry Addington, now Viscount Sidmouth, and in the said libel so “unbecomingly taunted” by being called by the title of his father “Doctor Addington.”
The purpose for which this constellation of great characters is here introduced, is no other than that of saying, that it being, by the supposition, my misfortune to be under prosecution for a libel against all those several great characters—and at the same time my advantage and privilege to have, for my trial and sentence, the choice of a star-chamber, in lieu of a jury so constituted and directed as aforesaid—my choice would be in favour of the said star-chamber: and this, even supposing the constitution of it to have received this—I know not whether to call it confirmation or amendment—to wit, that of its being composed, in the character of judges, of the very same persons, neither more nor fewer, as those whom, by the hypothetical and argumentative mention thus made of their names, it may, for aught I know, at a time when to write is to write libels, have already happened to me to have libelled.
Neither caprice nor rashness dictated the choice thus made.
Judging thus openly and avowedly in their own cause—executing the operation of conviction and punishment, at the same time and with the same hands—this apparent, as well as real union of functions, at present so erroneously supposed to be disjoined, would be sufficient to point towards them the attention of the public eye: weak as every check must be, the action of which is to be conveyed up into so high a sphere, some check, and that a real one, they would have: whereas, in the existing case, while the phantasmagoric vision of a check displays itself, of the reality no signs have ever yet been visible.
A Jury-less Judge preferable to a covertly pensioned Jury.
2. The other sort of judicatory to which, in my own case, as above, in comparison with a jury so constituted and directed, I should not hesitate to give the preference, is a single-seated judicatory, consisting of a judge, without a jury: and this even without excepting the noble and learned judge, under whose direction the jury-box, for the reasons already so distinctly stated, would, in my mind, oppose so insuperable a bar to hope.
To those, if any such there be, to whom an object of such inconsiderable importance as the actual state of judicature, when delineated by so obscure a pen as the present, may have already presented itself to view, the considerations by which, in the character of reasons (see Scotch Reform) this choice is dictated, will, if not already brought to view, at any rate be sufficiently apparent—it being, in one word, of the nature of responsibility (in the burthensome sense of the word) to go on diminishing ad infinitum, in proportion as the number of those who are sharers in the burthen is increased: not that from the same learned judge, by whom the jury would, in the case supposed, be directed, and of course directed to convict me, I could, as far as conviction goes, entertain any rational expectation of any better fate. But, the fate of the defendant being, in the case supposed, placed so manifestly as well as completely in his hands, what in that case I should hope for is—some mitigation in the rigour of my sentence. Not that, by the non-existence of a jury—not that, by a circumstance so completely foreign to the consequences and tendency of the offence—any defalcation could be made from the real demand for punishment: but that, in some way or other, more readily felt than described, the like effect might, in some degree, be produced by prudential considerations.
“You have had a fair trial: you have been tried by a jury: by a jury composed of your equals and fellow-subjects: you have been convicted by that jury.” . . . . In this strain runs regularly the eloquence, by which, when a convict is about to receive his doom, in an oration addressed in form to his own, but in design to other, the surrounding, ears (not to speak of pens,) intimation is given to him, that is, to them, to recognise the justice of it.
In this way it is, that the satisfaction, whatsoever it be, which it is the lot of the up, start “censor”* to afford, by his suffering, to the injured excellence of “great characters” placed in “high situations,” is enjoyed without abatement: while, of any dissatisfaction that may chance to be raised by it, a portion, more or less considerable, is turned aside upon the jury-box, the inhabitants of which find, in the constitutional darkness in which their operations have been involved, an effectual protection against all assaults to which visible objects stand exposed.
Were it my lot to be tried for a libel—a lot that may fall to me at any time, as well as to every other man in the country, who can either write or read, and whose endeavour is to afford, in any shape, he being not a man of family, “instruction to mankind,”—I had rather, a hundred times over, be tried by Lord Ellenborough, sitting alone in his proper place, whatever it might be—the King’s Bench, the Star-chamber, or the Privy-chamber—by Lord Ellenborough without a jury—than by a jury trained under the direction of, as well as directed by, Lord Ellenborough. By tears, by prostrations, by a certain quantity of dust licked up, by intercession of friends, by vows of good behaviour, and other et cæteras of penitence and humiliation, it might then happen to a man to find “feelings,” where feelings, other than those which are but springs of vengeance, are not now to be found, and where, except of that sort, the printers of The Independent Whig found none.
But suppose me prosecuted, and, before such a jury, of course convicted, what would be then the language: “Fool,” or “weakest man that walks over earth without a keeper—what would you have? You have been tried by a jury of your country: you have been convicted. There! go and write libels, if you can do it within four walls, without communication from without, in the well-ordered jail of Gloucester, for six years: for three, as is proved by your transgression after the examples you have had before you, are not sufficient.” Who, in a word, who had to stand fire from an adversary, would not rather have the adversary before a screen than behind one?
STATE OF THE PACKING SYSTEM, ANNO 1808.
INTRODUCTION—TWO REFORMING SHRIEVALTIES.
Turner and Skinner, anno 1783-4.
In the year 1784, Sir Barnard Turner, and Mr. Thomas Skinner (See City Characters,) the late celebrated auctioneer, afterwards alderman of London, finding themselves Sheriffs of London and Middlesex, charged as such with duties of no inconsiderable importance, conceived what to many grave and learned persons of that time, “friends to social order and our holy religion,” was looked upon of course as a theoretic and speculative fancy; viz. that of making things “better than well,” by applying their minds to the fulfilment of those same duties. The state of things appertaining to that department having presented itself to their eyes as being in divers particulars susceptible of improvement, they made in that view what arrangements had occurred to them as being in their own power, and in a tract of forty 8vo pages* —gave an account of what they had done themselves, together with a statement of such other things as, if done by others, presented, in their view of the matter, a prospect of being of use.
In addition to some regulations, partly executed, partly recommended, having for their objects the health and good behaviour of prisoners, the changes thus spoken of under the name of “alterations and amendments,” consisted of three innovations—one respecting the disposal of goods taken in execution in civil actions, the two others respecting the place and mode of putting criminals to death.
1. On their entrance into the shrievalty, they had found lodged, by customary negligence, in the hands of the sheriffs’ officers—a class of men, whose hearts are universally recognised as standing, in a peculiar degree, exposed to the inroads of hard-heartedness and corruption—the function of nominating persons, at whose disposal, in the name and character of appraisers, goods taken in execution were regularly placed by these their patrons: and of the general result of this arrangement a tolerably adequate conception may be formed from one individual case, in which, according to the report given of it by these sheriffs, the value of the property so taken, being about five times the amount of the debt, and the whole having been taken from the debtor, no more than a tithe of it, viz. half the amount of the debt, had found its way into the pocket of the creditor; the other nine-tenths having, in some regular and established, but unascertained or at least undivulged proportions, been shared between the minister of justice, and his official nominee and associate above mentioned.
To this grievance the remedy they applied was one which, though in principle, and in the character of a regularly-established remedy, applicable by all persons on all occasions not altogether an unexceptionable one, proved, in the individual hands in question, there is reason to think, a beneficial one: the nomination which they had found, as above, in the hands of their officers, was taken out of those low-stationed and impure hands, into their own: and forasmuch as in that station men are not only too highly and conspicuously elevated, but moreover too frequently changed, to be much in danger of engaging with success in the organization of any regular plan for the extraction of lucre from so impure a source, the mischief, if not altogether eradicated, must naturally have been considerably diminished.
On what footing the matter stands at present, it has not fallen into my way to learn. At that time, as the evil genius of the discarded functionaries would have it, both sheriffs were upright as well as public-spirited men: and Skinner, being, in relation to the branch of business in question, in a pre-eminent degree an intelligent one, knew where to find his like.
At present, the magnificent edifice, now erecting in the centre of the city under the name of the Auction Mart, presents the idea of a more radical cure.
2. On the ground of capital punishment, the place and mode of execution furnished to these reformers two other opportunities for casting their honest mite into the treasury of justice.
On those melancholy occasions, on which to save the trouble of reforming them, and adjusting punishment in quality as well as quantity to delinquency, malefactors of the most diversified descriptions are involved in one indiscriminating destruction, the operation was in those days regularly preceded (it seems not easy to say why) by a procession of two or three miles length, in the course of which, whatever effect could have been expected from the concluding tragedy was more than countervailed by the intervening disorders. Struck with the incongruity of this surplusage of locomotion, our reformers fixed the ceremony to the well-assorted spot to which it remains attached at present: a spot immediately contiguous to the place of confinement from which the victims then used to be, as they still are, taken for the appointed sacrifice.
At that same time, the fatal operation being performed, as mechanicians say, by hand, was performed in that coarse and uncertain manner, by which the sufferings of the patients were exposed to receive unintentional increase. It was to this happily associated pair of humble and unambitious reformers, that the machinery, now applied to that purpose, and still known by the almost burlesque but sole existing name of the New Drop, owed its establishment. Under English justice, the intended object, as well as effect of it, corresponds exactly with that of the guillotine, under the anarchical tyranny of revolutionary France. For, in the design of the humane, as well as scientific, inventor, whose name it has perpetuated, that instrument (a French edition of our Halifax Maiden) had no other object than that of diminishing, in each instance, the suffering produced by those executions, the multitude of which depended on other hands.
To any one who has been accustomed to observe how slow, in every department of government, from the highest down to the lowest, the pace of reform is, and how thickly beset with obstacles the paths which it has to traverse, it may be apt to appear difficult to conceive by what strange accident, even in so low a sphere, a change, which had for its result, as well as for its object, the good of the many, should have been suffered to take effect.
As to the innovation which consisted in the disturbance given to the official arrangement, by which so quiet and regular a division had been made of the property of the debtor between the officer and the appraiser—in the fact of its having been suffered to take effect, and that too without opposition from above, he may behold a certain proof of two things: viz. 1. That there was no individual existing in any such station as that of a judge or other considerable law-officer, into whose hands so much as a single penny of the profit that used to be thus extracted, was ever felt to have found its way; and that, in particular, if in the disposal of any of the property in question, any errors were ever committed by any one of these inferior ministers of justice, no Chief-Justice of the King’s Bench had ever considered himself as having gained, or conceived himself as being in a way to gain, to the amount of £1434 : 15 : 6 a-year, or any part of that sum, nor any Chief-Justice of the Common Pleas, £733 : 3 : 11 a-year, or any part of that sum, nor any attorney-general that or any other sum by contributing to the manufacture, or effecting or permitting the correction of any of these errors: 2. That neither did there exist among any of those exalted personages, any individual whose pride had found itself by any accident engaged in the protection of the abuses or inconveniences thus removed.
3. As to the procession from Newgate to Tyburn, the thieves, whose practice found itself diminished by the abolition of this ceremony—these unlicenced depredators—not one of whom ever had or ever would have found any difficulty, other than from want of money, in his endeavours to purchase a toss-up for impunity on pretence of some error, bearing no more rational relation to his case than to that of the first homicide—found themselves unable in their conjunct capacity to make any such case as on the ground of precedent would, in point of decency, have warranted any gentleman of the long robe, in the character of judge, counsel, or member of parliament, to stand up in support of it.
4. As to the new drop, the dying agonies of the patients destined to be relieved by it, not having found, in a long robe or in any high situation, any person possessing any such interest in their continuance, as is possessed by such a multitude of personages in high situations and long robes, in the continuance of the living agonies of so many thousands who are kept so regularly immured in forced idleness, by their authority and for the sake of their profit and their ease, and the only persons whose co-operation towards this reform was necessary, being the surveyor and the carpenter, whose sensibility to the advantages of it was beyond dispute, thus it was that this reform too found its way into existence unopposed.
In a word, barring opposition from superior power, accomplishment being within the power of the reformers themselves, and no interest intervening in any tangible shape to call down opposition from above, the reforms, such as they were, were carried into effect.
By these circumstances, when rightly considered and put together, the known facts of the case may be found to stand divested of that air of fable, by which, to a first glance, they may have seemed obscured.
Phillips and x. Anno 1807-8.
From that year (1784) to 1807, nature took time to rest herself: and, in all those three-and-twenty years, though of abuse, in a considerable variety of shapes, there could not, during any part of that time, have been any deficiency, it appears not that in the series of worthy and respectable gentlemen, who succeeded each other in that office, there had been so much as one, to whom the idea had occurred, of occupying himself in any such theoretic and speculative task, as the attempting to make any defalcation from the mass: no—not a thought about any such matter, in the breast of any one of the units in so many pairs of functionaries, any more than if, instead of paying his £2000 or £3000 for the privilege of discharging the functions of his office, he had, like a pair of Honourable Knoxes, received his £10,023 a-year; or like an Earl of Buchinghamshire, his £11,094, or like a pair of Lord Seymours, his £12,511, or like a pair of Percevals (one behind the other) his £38,574 (“subject” alas! to “deduction,”) for the trouble of bearing the official title of it: practice not being, in any part of all this time, in any degree, or by any body, neglected—practice, to wit in essentials, such as going to court, riding about in a gilt chariot, giving and eating dinners, and the like.
Africa, in times of old, had the reputation of producing such singularities as could be exhibited on four legs. In modern times, England has among nations been noted for producing singularities on half the number of legs.
In the shrievalty year 1807-8, the spirit of reform having passed, as hath been seen, three-and-twenty years of repose on the pillows, or in the graves, of Sir Barnard and Mr. Skinner, made its appearance, in the character of a giant refreshed, in the body of Mr. Phillips, a publishing bookseller of the first eminence, who, on receiving from his Majesty’s sword the customary honour, changed his appellation into that of Sir Richard Phillips.
In the nature of the shrievalty there is a sort of mystery, in consequence of which he, who does not look well to his words, and even he who does, will be in continual danger of falling into one or other of two heresies, which, like Scylla and Charybdis, lie in wait for him, one on the side of grammar, the other on the side of legal and curious learning. In London and Middlesex, taken together, there is never one sheriff only; there are always two sheriffs. The same two respectable gentlemen who, in the city of London, constitute two sheriffs, and thereby two persons, constitute, in the county of Middlesex, but one sheriff, and thereby, in legal abracadabra, like man and wife, but one person;—or else vice versâ;—for, such is the frailty of unlearned memory, that as often as, in relation to this article, one minute finds me in possession of orthodoxical truth, the next minute finds me dispossessed of it.
In the artificial and involuntary fraternity contracted by him on this occasion, it was not the lot of Sir Richard to find any such felicity as that which had attended Sir Barnard and Mr. Skinner.
Bishop Burnet—or, if not he, some other self-reported eye-witness, whose name, if found, would not, to the present purpose, add much to the stock of our useful knowledge, tells us of a pair of twins whom he saw living in Holland, and whose misfortune it was to stand connected by bonds of fraternity closer by much than either of them wished; viz. by an adhesion of some sort or other, in the region of the back-bone, constituting thence, instead of two bipeds, one unfortunate quadruped.
At the age of about twenty, one person of this unhappily-connected pair paid the debt of nature. The condition of the survivor is too deplorable to be dwelt on anywhere, especially in this place. All that is here wanted of him is to serve as a type of one-half of our quadruped, or double biped sheriff.
In his pilgrimage through the thorny region of reform, Sir Richard was not long ere he found himself in the disastrous plight above alluded to. Into the body of his twin colleague, Mr. x, either the beneficent spirit above spoken of had never made its entrance, or had soon made its retreat, leaving it in the condition of a carcase, which, if not dead in law, was dead to the purpose of rendering, in any degree, less pernicious the condition of the law. At every step he took, our knight found himself with this everlasting colleague at his back, exhibiting, in no other form than that of the vis inertia, except now and then a kick or two, any signs of life.
As to Mr. x, I borrow, on this occasion for his use, one of the names employed by mathematicians for the designation of their unknown quantities, not thinking it necessary to him to possess any other introduction to “Prince Posterity” than what he has secured to himself by his own picture, as drawn by himself and published by Sir Richard, in that work of his, of which mention has been already made.
As to Sir Richard—what things he did—what other things he tried to do, and would have done, but for the giants and dragons he had to encounter in his way—all the while with this mass of proud flesh at his back—matters of that sort belong not exactly to this place: any more than the sort of requital he met with, in another character (see p. 111,) from a pair of learned brethren, whom he found so much more perfect in the art of “dwelling together in unity,” than he and his.
Of the list of his achievements and less successful endeavours, one alone belongs, by any direct title at least, to this history; viz. the discovery, made by him, of the pitch of perfection, at which the art of packing (that master art of which the elements have been endeavoured to be delivered as above,) has been carried in the application made of it to special juries.
Beholding in the Court of Exchequer, as above, the great manufactory or workshop, in which it was carried on, and seeing more to admire in the ingenuity displayed in it, than in the purposes to which he saw it applied, he addressed a letter to the chief conductor of that important branch of business, noticing the state of the art, together with such observations as had been suggested by it.
At this time he was either charitable enough to suppose—or, (what seems the more probable interpretation of the two) decorous enough to seem to suppose, that the mode in which the business was conducted was a secret to the pre-eminently learned as well as skilful person, under whose auspices and authority he found it going on. But, if such was ever really his belief, it was not long before he found himself obliged to take his leave of it.
THE SHERIFF TO THE LORD CHIEF BARON—NOTICES.
Substance of the Letter.
Few, simple, and important, will be seen to be the statements made by this sheriff to the Lord Chief Baron. After the substance of each statement, follows an intimation of the sort of answer given to it.
1. That in the judicatory, over which the Lord Chief Baron presides, juries are become virtually permanent: and that the Lord Chief Baron knows they are. Of this state of things the Lord Chief Baron admits the existence; and moreover, as will be seen, justifies it.—Say, admitted and justified.
2. That this permanence is contrary to an acknowledged principle of the constitution, and considered by the public as such.—Not denied.
3. That it is contrary to the express provision of an act of Parliament [4 Geo II. c. 7, § 2.]—Not denied.
4. That the permanence has packing for its cause.
N. B. The word packing not employed: but the modes of operation indicated, and certain official persons indicated as operators.—Not denied.
5. That of the interference of the solicitor on one side, viz. the solicitor for the crown, a selection, chargeable with partiality, is the habitual result.—Not denied.
Partly by a regard to decorum, partly by the want of that experience which was yet to come, the sheriff was betrayed into two other assertions which proved erroneous.
6. One was—that this permanence had not among the number of its causes, on the part of the learned judge whom he was addressing, either direction or connivance. This was in April 1808. But in September following, we shall see him relating facts, by which, on the part of the judge, connivance was rendered certain, and direction (the system of permanence being in the judge’s answer openly defended) little short of it.
7. The other was—that among the causes was either negligence or indifference, on the part of the official persons by whom the jurors are fixed upon:—which persons, as the Lord Chief Baron could not but know, though the sheriff does not state who they were, were officers acting under the authority of the learned judge. But of this breach, not only of constitutional principle, but, as virtually admitted, of positive law, neither negligence nor indifference had been the cause. And the proof of its not having had either for its cause, is given by the sheriff himself a little further on. For, on receipt of a remonstrance made by him, we shall see the master packer giving up for the moment the supposed illegal practice, but afterwards resuming it.
The Letter in its own words—with Observations.
Here follows the letter in its own words. Phillips, p. 166.
“TO THE LORD CHIEF BARON.
In obtruding upon you Lordship, on a question which has arisen in the exercise of the high office which I have the honour to fill, and which appertains, in an important degree, to the practice of the court over which your Lordship so honourably presides, I am emboldened by that urbanity and liberality, which I have discovered to be the leading and actuating traits of your personal character.
“Your Lordship is doubtless aware, that the public have viewed with peculiar interest, for many years past, the manner in which special juries are brought together, and particularly the circumstance that they have consisted, with little variation, of nearly the same individuals in every cause, for terms and years together.*
“In causes between individuals, this is a matter of minor consequence; but in causes between the crown and the subject, your Lordship will readily conceive, that it is a practice viewed with jealousy, and does not accord with those other features of our jurisprudence which are so much admired at home and abroad.
“The evil is not attributable to the connivance or direction of the judges,* nor to any defect in the law; but it arises solely, as I am told, from the negligence or indifference† with which the juries are struck by the proper officers, and from the interference, in certain cases, of the solicitors for the crown.‡ The freeholder’s list is full, and tolerably perfect; but in calling over the names, the solicitor is permitted to interpose, and to say who will and will not attend: so that instead of the names being indifferently taken and dictated by the officer of the court,*and the attendance of those persons being compelled by the exaction of severe penalties, the juries are chiefly composed of those who, it is loosely stated, will attend; and these are frequently the same persons, jury after jury, and term after term.
“Your Lordship will perceive, from the inclosed letter† of Mr. * * *, that the sheriffs have had some difficulty in their minds on the subject of summoning persons thus returned; considering as they do, that the clause of the 4th Geo. II. applies equally to special and common juries. Yet as the correction of the evil is their object as public officers, rather than any contention with the officer of the court, I have felt it more respectful at once frankly to submit the whole matter to your Lordship, in the hope that it may tend to place everything on its proper footing in the pleasantest manner.
“I beg at the same time to have it distinctly understood by your Lordship, that in making this statement, and in writing the observations contained in this note, I have had no design to implicate the conduct of any individual; and that, in stating the general facts, my only object has been to justify the application which I have in this manner felt it my duty to make.
“I entreat of your Lordship to believe me, with every sentiment of respect, yours, &c. &c. &c.
Bridge Street, April 4, 1808.
LORD CHIEF BARON TO SHERIFF SIR RICHARD PHILLIPS—AVOWRIES AND DEFENCES.
Substance of the Letter.
Four days after the sheriff’s letter, viz. on the 9th of April 1808, comes, from the Lord Chief Baron to the sheriff, an answer, of the general complexion of which an intimation has been given, as above.—I. Admitted and justified, the permanence. II. Not denied—1. That it is unconstitutional; 2. That it is contrary to act of parliament; 3. That the mode in which it is effected is by officers in his lordship’s dependence, in collusion with the solicitor on one side.
None of all these phenomena coming, in his lordship’s conception, under the notion of “inconvenience,” he declares—and on the authority of his own “long” experience—that not “the least inconvenience” has, from the practice in question, ever “arisen during all that time.”
On the other hand, to the restoring special juries to that state of independence in which they are, by the constitution, intended, and, in fact, supposed to be, he opposes two decided objections. These may be comprised under the following heads:—
1. Increase of vexation—viz. eventual vexation to persons liable to be called upon to serve in the capacity of special jurors: vexation, a mischief the avoidance of which constitutes, it must be confessed, one of the collateral ends of justice.
2. Danger to justice—viz. to the main and direct ends of justice—by the prejudice that may result to one side of the cause or the other, as it may happen: to wit, by a partial loss of a species of “instruction,” which, in the class of causes in question, he represents the jurors to stand in need of, to make them do justice.
Theoretical classifications, such as the above, are looked down upon of course with sublime disdain by the almighty creators and arbiters of practice. But being my duty, it is my endeavour, to place his lordship’s arguments in what appears to me the clearest as well as strongest light of which they are susceptible.
Of these supposed inconveniences, such is the force with which the consideration operates on his mind, that he concludes with using his influence with the sheriff to engage him to leave things as they are.
Whether, even supposing the inconveniences in question to exist—and that in the utmost degree of force in which they are capable of existing—whether, even on that supposition, they would in law constitute any sufficient warrant, or so much as an apology, for the mal-practices, the existence of which is admitted, is a point on which not much seems to require to be said.
But the very existence of the inconveniences in point of fact, seems to call for an inquiry, which will be the business of another chapter.
The Letter in its own words.
“Old Balley, April 9th, 1808.
Permit me to thank you for the very flattering manner in which you were pleased to make the communication I received, with respect to the summoning of special juries. Mr.—’s observations were perfectly just;* I cannot but observe, however, that he uses the expression, ‘if you think it worth your while’ to make any reform:* this, as far as respects the Court of Exchequer, I have not found, from the experience of above twenty-four years, in the character of his Majesty’s law officer, or as Chief Baron, to be worth while; as I have never seen the least inconvenience* arise from the manner of striking and summoning special juries, during that time. A great inconvenience to the special jurors must arise from summoning those from a distance.†
“The causes in the court of Exchequer are of a nature quite peculiar to themselves in many respects, and the duration of any cause is particularly uncertain. In order to obtain their attendance, it has been found expedient to summon such as live near to London,‡ otherwise there would be little expectation of having anything like full special juries,∥ and almost all causes in revenue matters are tried by special juries.
“Within the last half year, I have had complaints in court, by gentlemen summoned on the special jury, of being brought fifteen miles from their homes,* whereas the persons living in the immediately adjacent parts of the county could attend without any inconvenience. I may add, too, that some experience in serving upon Exchequer special juries is far from being detrimental to the public or defendants, inasmuch as the instructing jury after jury,† in the conduct of many species of manufactures, and the laws on the subject, exposes both parties to the hazard of the points being ill understood, and hastily determined by them.
“During the long time that I have been employed in the court of Exchequer, I have known few verdicts from which I should have dissented,* had I been one of their inestimable body, and they have been cases wherein the determination has been favourable to the defendants.†
“Having hitherto seen* no reason to complain, as far as my experience goes, it must be left to your own discretion,† whether you will risk the making us better than well.‡ I am, Sir, with great respect, your obedient humble servant,
OBSERVATIONS ON THE LORD CHIEF BARON’S DEFENCES.
Insufficiency of the Defences in any case.
Come we now to the consideration of the two inconveniences, the pressure of which on his lordship’s mind became so irresistible, as to force him at once upon two measures of such extremity as the violating an acknowledged fundamental principle of the constitution, and travelling on for years in a course of persevering and open-eyed disobedience, in the teeth of the authority of the legislature.
Not that, had the advantages professed to be expected from this transgression been ever so many times as great as even by himself they could have been supposed to be, they could ever have amounted to so much as the shadow of a defence. On every imaginable supposition, the operation thus performed by the subordinate, by the judicial authority, is indefensible. The change thus effected, would it, if proposed to parliament, have been approved and carried into effect by parliament?—attempting it by judicial authority was needless:—would it have been disapproved?—attempting it by judicial authority was not fitting.
Instead of that of George the Third, had the reign been such an one as that of Elizabeth, in which the intention of sparing the subject as much as possible—perhaps for ever—the trouble of paying their homage at the foot of the parliamentary throne, was declared—declared, from the throne itself, and merit grounded on it—at such a period—such usurpation might, in such supposed advantages, have found an excuse. But now—in the 19th century—when the return of the sessions is become no less regular than that of the seasons—is this a time when the plea of necessity can form so much as a veil—any even the slightest veil—for such usurpation?
Yet, though the work be but supererogation—and the words bestowed upon it little better than surplusage—let us take up the arguments one after another, and look a little into their texture. Let us see whether, when put together, there be in them indication of any such mass of substantial inconvenience, as could have served for a ground, even for so much as a constitutional and regular recourse to parliament for the removal of it.
Defence 1—Avoidance of Vexation
“Brought fifteen miles from their homes!” Alas! poor “gentlemen!” Brought fifteen miles, each of them for no more than a few guineas—possibly even for no more than one—to a place to which everybody comes, and to which, but for the summons and the guineas, without any guineas received, and at the expense of guineas paid, they would otherwise have come!
Oh! what a charming thing it is to be a gentleman! If, on the bed of roses you repose upon, there be but a single leaf that has a pucker in it, how tender the sympathy excited in reverend and learned breasts!
Fifteen miles from the metropolis!—and in the whole of this almost smallest and most compact of English counties, exists there really any one spot banished to so tremendous and toilsome a distance?
What if it had been in one of the large or straggling counties?—in Yorkshire, in Lincolnshire, in Devonshire, in Sussex, for example? In any of those instances, how many more miles would the maximum have swollen to? But the imagination is appalled, and shrinks from the research.
Turn now to common jurymen—for the definitive trial of causes the only sort of jurymen which till t’other day the constitution knew of. Place them in one of the large or straggling counties, and fetch them to court, each for his eight-pence.
Aye, but these are low people—people who cannot say their catechism—their Perceval catechism—(See Part I. Ch. XI. § 2)—people of no “family”—people (as we shall learn from the observations of the learned Templar, whose “observations are so perfectly just”)—people whose time, if it be not absolutely worth nothing, is at any rate, in the estimate of Exchequer justice—or say at once of Westminster-hall justice—not worthy of a thought—people who except for the purpose of thus serving in it without recompence, are thrust forth in a lump out of the temple of justice into the pit of outlaury, lest the fund of rewards provided for learned merit should fail of being adequate to that exclusively important service.
As to the principles, the true legal principles, on which the value of time ought to be computed, this topic will meet us in the next chapter.
Defence 2—Benefit of Instruction.
Direction to Judges, Advocates, Politicians, and other Debaters; showing a safe method of defending the wrong side of any question, especially where you have the advantage of situation on your side.
Where the nature of the case is such as to afford you, for the purpose of your argument, no fact, but what, if relevant and particular enough, would not only be false, but too plainly so not to be seen to be so, mount up into the region of generalities, till you come to some proposition, which, being by reason of its generality neither true nor false, is by that means saved from the inconvenience of being proved to be false. By this means, should you fail of convincing men, those excepted who find their convenience in being convinced, at any rate (what is no small point gained) you secure yourself against being confuted. And among men of modesty and diffidence, those who cannot exactly find out what your meaning is (at any rate, if your “situation” be a “high” one, and they scholars bred up in Blackstone’s school,) will, if they do not plainly see your meaning to be false, give you credit for its being a good and true one.
Whether a rule to this effect was ever laid down in words, is more than my slender stock of learning will enable me to pronounce:—that it has been acted upon, and that right frequently, may be asserted with less diffidence. Witness ourselves at Westminster, et cætera, and so forth:—at Westminster, in all our courts, and moreover in both our houses.
“Experience . . . . far from detrimental” . . . . . Instruction needful to human ignorance—two lessons better than one—three better than two, where two have proved insufficient—against maxims such as these, where is the caviller so perverse as to pretend to have found anything to object? Proof against all disproof, what, at the same time, does all this prove? Among those “many species of manufactures,” had but a single one obtained a mention, here it is that, if in the general proposition, thus cut down to a particular one, a speck of error had found itself included, the finger of detection might have been laid upon it:—meantime, in default of stronger handles, let us look out for something that for the moment may be taken hold of, though it be but of straw or cobweb.
But before we proceed to observe upon it, let us, by way of necessary preliminary, begin with the endeavour to interpret it, or, as they say in Westminster-school, and in Westminster-hall, to construe it—or, in plain English, to find out the meaning of it, or, when the worst comes to the worst, a meaning for it.
“Instructing jury after jury . . . . exposes” (says his Lordship) “parties to a hazard.” . . . . . Not that from this we ought to conclude that, taken in the abstract, instruction is a bad thing:—bad, either for those to whom it is not, or those to whom it is, communicated.
No, nor yet that, in taking for the subject of instruction “many species of manufactures,” there is more of hazard than there would be in confining the instruction to some of them, and leaving the rest to go without it . . . . But . . . .
But—lest to construction, carried on upon this plan, there should peradventure be no end, let us lay aside construction, and take up paraphrasis, or, as we say in English, paraphrase, instead of it.
Many are the species of manufactures, in the instance of each of which, in respect of this or that part of the whole assemblage of instruments and operations, which, on the occasion of a revenue cause in the Exchequer, is liable to come in question, the demand for instruction and explanation is so considerable, that the utmost quantity of instruction that will, generally speaking, have been afforded on the occasion, and brought within the compass, of a single cause, will not have been sufficient to satisfy it: so that, should the same part of the process be brought a second time under the notice and cognizance of one and the same juryman, the probability is, that with the help of the additional instruction which on this second occasion he will receive, the conception which he will have obtained of the matter at this second trial, will be more accurate and complete, than the conception he obtained at the first trial, whereby, in so far as depends upon him, the chance in favour of a right verdict will receive a proportionable increase.
Mischievous Doctrines involved in this Defence.
Meantime, if this, or any thing like it, be the argument of this pre-eminently learned judge, let us observe now where it leads. We shall find involved in it the following doctrines:—
1. That, in respect of causes of the particular description in question, jury-trial, in the ordinary mode, is not a fit mode of trial: at any rate, not so fit as the new mode which he has contrived to substitute to it.
2. That for these causes, the more proper, if not the only proper species of judicatory, is that which is composed of a board or bench (call it which you please) of permanent judges: for example, such as the board of excise, which already to a considerable extent has jurisdiction in these same matters: the principal difference being, that in this special-jury board there is an over-number of judges, to make a kind of rotation: which species of judicatory, preserving to it still the name of judge and jury, with the forms of jury-trial, he has substituted accordingly.
3. That, the mode employed by him being such as renders this secretly formed board of completely dependent judges, under the disguise of jurymen, applicable with equal facility, and in practice, as there is reason to think, (Suprà, Part I. Ch. VIII.) actually applied, at the pleasure of dependent servants of the crown, to crown causes in general (capital, and next to capital, excepted,) and, in particular, to crown libel law causes, the superiority of advantage attached to this sham jury-trial, as compared with the genuine mode, is such as warrants the departure made to so great an extent from the acknowledged principles of the English constitution.
4. That this superiority is even such as not only would warrant the legislature in making the change, but actually has afforded to a judge, viz. to himself, a sufficient warrant for making it of his own authority, and without warrant from the legislature.
Acknowledged Nothingness of the Advantage.
Such being the price paid, at the expense of the constitution, by this our learned improver, for the sort of improvement introduced by him, with such advantages as may be found belonging to it, a question to which the mind of the inquirer is naturally and unvoidably turned is—what may be the amount of this advantage, according to the estimate formed of it by the learned improver himself: this being the advantage for the sake of which he has been content to give birth to all those other results, the complexion of which is, to ordinary eyes, so far from being advantageous?—and, for answer to this question, what we find, certified to us by his own words, is, that, in his own estimation, this advantage amounts either to nothing at all, or to something between nothing and next to nothing. It amounts not so much as to the absence—total absence—of all “detriment” or inconvenience: it amounts to no more than the absence of “detriment” in one particular shape; viz. in the shape of “experience.” “Some experience,” says he, “in serving upon exchequer special juries is far from being detrimental to the public or defendants”. . . . whereupon immediately come those clouds, in which we have seen this pre-eminently learned person losing himself, when he goes on to speak of the “hazard” to which “both parties” are “exposed” by “the instructing jury after jury.”
While puzzling myself with this glimpse of an advantage, being curious to discover, if possible, what might be the amount and value of it in the eyes of the learned improver himself—and, instead of recurring at once to his own estimate, as above, having fallen unawares into the error of endeavouring to determine it, from the price I saw he was so well content to pay for it, I had strayed insensibly into the inquiry, what might be the real amount of it; and in this view, at the cost of some days of labour, I had actually pursued to no inconsiderable length the analysis of it. But upon turning once more to his own words, and finding that it was not easy for any person whatever to sct this supposed advantage at any lower rate than it had been set at by the learned improver himself, I saw at length, and not altogether without regret at the thoughts of the time thus wasted, that I had been all this while combating without an antagonist.
I therefore spare the reader, for the present at least, the labour of following or attempting to follow me, through a sort of analysis so dry and intricate as to involve, in the way of indication at least, a mass of mathematical calculation. But should it ever happen to his Lordship, or to any avowed advocate of his Lordship, at any such bar as that of the House of Lords, or even that of the public, to draw into question by any arguments the propriety of this his estimate, I mean in so far as it sets down this so dear bought advantage as amounting to next to nothing, I am ready to produce this my analysis, and, upon the supposition in question, to defend, against these his Lordship’s first thoughts, any second thoughts, either on the part of his Lordship, or on the part of any other such less dignified defenders and gainsayers.
Short Exposure of the supposed Advantage.
Meantime, in demonstration of this nothingness, one argument (it being a short one, and not involving any inquiries of detail) shall not be consigned to oblivion with the rest.
On the part, and in the person of, and from the “instruction” that would be afforded by, this our pre-eminently learned judge, a jury of the old school, were it permitted to “serve,” would have the benefit, not merely of “some experience,” but of consummate experience. Now then, after the benefit of such instruction, though received in the course of no more than one single cause, to wit, the cause for the trial of which such jury had been summoned, and was sitting, what would be the utmost advantage derivable to any practical purpose, from any other, to wit, any antecedent lecture or course of instruction, that could, even from the same pre-eminently learned lecturer, have been received? Nothing; no, nothing at all; is the answer I return with the utmost confidence. Where “the points” were such, as to be either plain enough in themselves, or made so by the one only lecture which, till this our pre-eminently learned lecturer set up, was ever designed by the constitution for an English jury, his Lordship would accordingly leave the decision to the opinion of these plain men. When these same “points” had any such intricacy in them, as entitled these plain men to the benefit of an opinion, formed and ready made for them by this at present consummately experienced, and from the first most incontestably competent judge, he would not refuse it to them. This incontestably competent opinion, would it find them disposed to acquiescence? Acquiescence would take place accordingly; and (in the Blackstone’s phrase) “everything would be as it should be.” Would it find them disposed to refractoriness? It is not by any antecedent experience that they could have been cured of so troublesome a vice.
But (says some one, with the proper expressions of regret) the country (alas!) cannot always enjoy the blessing it possesses at present, in the services of this our veteran and consummately experienced judge: that blessing withdrawn, comes some other Lord Chief Baron, who, though the adequacy of his general legal learning will be sufficiently proved by his situation, will not, with reference to causes of the class in question, be, at the commencement of his first cause, altogether so completely endowed in the article of experience. Here, then, upon his Lordship’s improved plan, comes the benefit of an experienced, and thence of a permanent jury:—while the judge is learning to walk, the jury will be able to go alone. But, upon the old plan, what experience would there be?—When the blind have no leader but the blind, the consequence is such as need not be mentioned.
I answer—were the argument, which has been shown to be worth nothing, worth ever so much, it could not to this purpose be of any use. At a much cheaper rate than the violating of a vital principle of the constitution, an adequate allotment of appropriate experience might, at all times, be seated upon the bench. “Set a thief to catch a thief,” is a coarse proverb, but, on the present occasion, not an uninstructive one. In that division of the court of Exchequer (not to speak of the great law-officers, who might not always regard a presidentship, which has so recently cried date obolum, worth the honour of their acceptance,) there will be always some one learned gentleman at least, by whom, in the character of licensed accessary after the fact, or, in two words, standing counsel to the fraternity of smugglers, an ample stock of experience—appropriate experience—cannot but have been laid in.
But (replies the learned gentleman on the other side) any rule to this effect would be an infringement upon the liberty of the prerogative: that liberty being proportionably trenched upon by every rule, the tendency of which is to secure the appointment of fitter functionaries in preference to less fit ones. It would accordingly be injured, if, in his choice of judges, it were rendered more difficult to his Majesty than it has been, to provide for the accommodation of the family connexions of persons in “high situations.”
Prerogative (I answer) is an argument, which is (I must confess) understood never to admit of any direct contestation. But, in the Westminster-hall benches, besides ten subordinate seats, there are four chief or principal ones: and the prerogative, it is humbly submitted, would not sustain much injury, if, for the superior purpose of private accommodation, it were to apply itself to some one of the many other seats in which no such imperious demand for experience—appropriate chemico-mechanico-commercial experience—as that of which, by the unprecedented sagacity of the present Lord Chief Baron, the discovery has so recently been made.
Mischievousness of the Doctrine further developed.
But the material thing is, that, if his Lordship’s sentiments have not been strangely misinterpreted by his words, it is not merely in Exchequer causes, viz. Exchequer revenue causes, that, in his conception of the matter, the substitution of a permanent and dependent board, under the name of a jury, to the jury of the old school, ought to be applied; but in all causes to which that antiquated species of jury has ever been applied: in all such causes, without exception, but more particularly in libel causes. For, such is the nature of the reason thus held up by him to view, that to the application of it any narrower extent cannot surely be assigned. This reason consists of the ignorance under which each member of a jury cannot but be supposed to labour, the first time, at least, of his serving in that character: of which ignorance, in his Lordship’s view of the matter, the influence—the morbid and debilitative influence—is such, that nothing less than permanence can afford an adequate cure for it.
The “points” which he speaks of as being the subjects of this ignorance—of this ignorance to which there exists no remedy but in that “experience” which supposes permanence—the actually existing and thus defended permanence—are, not only points relating to the conduct of manufactures, “many species of manufactures,” but points relating to “the laws on that subject,” meaning on the subject of these same mannfactures.
Unfortunately, in comparison of what is to be found in the great body of the laws, the utmost difficulty of comprehension, and consequently of demand for instruction—for experience in receiving instruction, and consequently again for permanence of situation, the utmost demand created by those particular laws, which have for their subject “the conduct of manufactures,” is as nothing. In the instance of every part of the rule of action, which has any species of manufacture for its subject, that rule is in the shape of statute law—a shape in which it is provided with a determinate set of words for the expression of it. But, in the case of the great body of the law, remaining as it does in the shape, or rather in the shapeless state, of common, alias unwritten, law, there exists no such determinate set of words. In all this vast extent, the two sources of difficulty, and with it of demand for “experience” and permanence—viz. law and manufacture—are combined in one. Judges, the master manufacturers: law, or, what to every purpose—of suffering at least, if not of instruction or relief,—has the force of law, law itself the product of the manufacture.
In the case of every other species of manufacture—of every species of manufacture commonly known by that name, the master manufacturer viewing, in every misconception that may take place, a source of loss to himself, and having to deal with simple and uncultivated minds in the character of labourers, has for one of his objects, and that a constant one, the rendering the conception of the operations to be performed, and the instruments to be employed, in his manufacture, as correct and complete as possible, and employs his endeavours accordingly.
In the case of the manufacturers of judgemade law, interest being directly opposite, endeavours have of course been correspondently opposite, and results equally so.
Whatsoever may have been the course of endeavour—whether with or against the stream of interest—the result is, at any rate, equally and indisputably notorious. The demand for instruction, and consequently for “experience,” and consequently for permanence, being then so much greater in the cases in which his Lordship was not led to bring it to view, than in the cases in which he was led to bring it to view, and has brought it to view accordingly, this demand covering the whole field of law in general, and that of libel law in particular, what his Lordship’s opinions and wishes are and have been—what his Lordship’s endeavours, on all favourable occasions, may with justice be inferred and presumed to have been, and to be about to be—need not surely be particularized.
“This reason of yours—viz. the demand for experience—will you abide by it, or desert it? Desert it, there is an end of the matter, and your conduct remains without excuse. If you abide by it, will you abide by it wherever it applies with equal force? If no, there again you desert it:—if yes, you then mean to carry it, upon occasion, over the whole field of special-jury trial, and, in particular, over that part which regards libel law. Meaning to carry it over the whole of that field of jury-trial, and, in particular, over that part which regards libel law, in packing into a standing board a set of dependent commissioners, habited like jurymen, for service in your own court, that is, for Exchequer service, it has then been your meaning to enlist and discipline them for King’s Bench service.”
Such, in conclusion, are the questions and observations that might be addressed to the pre-eminently learned author of this defence, and, as it should seem, not altogether without some prospect of effect, if the forms of the constitution were anything better than a cloak for despotism, and if responsibility were, in fact, among the attributes of an English judge.
Lawful Improvement—Track it would have proceeded in.
Now, suppose again, for argument sake, it had pleased this pre-eminently learned judge to “think it worth while” to allow to King, Lords, and Commons respectively, their several votes in relation to this business; more particularly to the Commons, whose attention is, or used to be, considered as, in a more particular degree, bespoken for regulations affecting the revenue.
In the House of Commons, besides the committees of the whole house, there would probably have been appointed some select committee for the purpose. Thus appointed, the committee would have set itself to work, and begun with analyzing the general conception thus formed by the ingenuity of the learned judge:—decomposing it, they would have resolved it into such particulars as may be found involved in it:—particulars, the number of which is determined by that of the several “manufactures, the practice of which has, under favour of that permanence which forms so really useful an attribute of the judicial seats, been brought under the dominion of his Lordship’s science. The analysis thus performed, they would, in the instance of each such manufacture, have proceeded to inquire into the truth and accuracy of that general conception, and into the degree of force with which, in each instance, the argument deduced from it, in defence of a select and permanent board, in preference to a fortuitously determined and ever-changing jury, may be found applicable.
Supposing that in each one, or in this or that part of the whole number of these manufactures, the quantity of instruction necessary to the giving the requisite assurance of a right verdict, had respectively appeared so great, that the quantity of time, capable of being allotted to one trial by jury, could not with propriety be considered as sufficient for imbibing it, then, and not till then, would it remain for the consideration of the committee, whether, for the obtainment of whatsoever increased probability of correct judicature appeared capable of being obtained by the proposed substitution, it would really be worth while that an innovation applying to so important a part of the constitution should be introduced.
Supposing this question determined in the affirmative, then would come upon the carpet, for the consideration of the committee, the question concerning the organization of the permanent board or bench of judges, by which alone, in the sorts of causes in question, correct justice is, by the supposition, capable of being administered.
Satisfied, let us even suppose then, that, by a jury, justice in this behalf was incapable of being done, would any such determination be formed by them—would any such idea be so much as proposed to them, as that of giving the name of a jury to a body of men in which it had been predetermined that none of the properties of a jury should be found? Would they—these representatives of the people—bring themselves to attempt putting any such imposition upon their constituents? I hope, and dare believe, they would not. Deceit like this belongs to none but a class of men trained up in the application and formation of that art and science which is from beginning to end the art and science of imposture.
Such as above, or something like it, is the course taken by King, Lords, and Commons, when to them it seems good to take upon them to make laws; to make laws, taking, as they must be content to do, their chance for seeing, or, if it be more convenient to them, for avoiding to see, those laws overruled:—overruled, indeed, but happily always by men of transcendent science, by whom, without the trouble of studying it, the business of legislation is so much better understood.
But King, Lords, and Commons, are a dull and slow-paced set;—determining nothing about facts, till after they have been poring over, as well as prying into, facts. How much more easily are these things managed by a learned judge! When, at any time, he “thinks it worth while” to make a law, it need cost him but a word: nor be it necessary even to that word to contain thought, or any such heavy matter, at the bottom of it.
Another thing might, in this case, be affirmed with some assurance: viz. that were parliament, at this time of day, to think fit to appoint for this (not to speak of any other) purpose, instead of a jury, a permanent board,—in that case, into the organization of any such board, no such barbarous and flagitious feature would now be introduced, as should put it into the power of any one dishonest member to overrule, by his own single will, the opinion, and consequent will, of eleven honest ones.
Parliament would, in this case, do in this particular, as it did in the case of the judicatory established by the Grenville act: which judicatory cannot be defensible, but upon the supposition that what, in the case of jury-trial, is called unanimity, is indefensible.
SPECIAL JURY CORRUPTION—DEVICES BY WHICH IT WAS PROTECTED.
Device 1—Leaving to Judges a covert ground for refusing to apply the act.
We come now to account for the flaw, observable, though, by our triad of learned persons, not observed, in the reforming statute (3 Geo. II. c. 25)—I mean its inapplicability to the principal, the new-invented, and most conveniently-framed seat of corruption viz. the special sort of jury.
So far as concerned the trial of causes, the use, and the only use, of a jury was, as there has so often been occasion to observe, the operating as a check to arbitrary power in the hands of judges. This intended and supposed check, by the invention of the sort of jury called a special jury, and to the extent of the application capable of being made of it, they had already, and before the passing of this act, given to themselves the faculty of converting into an instrument: the determination of the individuals of whom, in the instance of this novel species of jury, the tribunal should, on each occasion, be composed, being taken by them out of the proper hands, and virtually into their own, viz. by being vested immediately in the hands of the permanent officer, whom, on that account, there has been such frequent occasion to designate by the appellation of master packer—their own dependent and subordinate.
Abuses respecting the appointment of jurors—of jurors of all descriptions, and for all occasions—corruptions too flagrant to be any longer endured in silence—having engaged at length the attention of the legislature, the necessity of doing something had, to the conviction of the learned fraternity, become inevitable.
In this emergency, it became their manifest interest, and consequently their care, so to order matters, that whatever it should be found necessary to do, or suffer to be done, for the prevention of abuse in the appointment of juries, should be confined to common juries, and should not, either by design or through inadvertence, be extended to those juries of their own nomination—viz. to special juries: but that, on the contrary, every pretext and every opportunity should be embraced, for giving, to the application of so convenient an instrument, every extension of which it might be found susceptible.
At the same time, this invention of their’s being incontestably repugnant to the universally-recognised principles of the constitution, it became a matter of prime importance, that, of whatsoever should be done for the extension or even for the preservation of it, the true nature and operation should be kept as effectually concealed and disguised as possible.
The remedy, therefore, whatsoever it might be, was to be made to possess two characters; viz. an ostensible one, and a secret one: in its ostensible character, it was to bear upon all juries without distinction: in its secret character, it was so to be contrived, that, if at any time any untoward accident should happen to call for its being carried into execution and effect, it should, in the case of a special jury, be found inapplicable: which sort of jury should consequently remain the seat of corruption and abuse in every convenient shape, notwithstanding any success which, in the instance of the ordinary and vulgar sort of jury, might have attended the measures taken for the extirpation of those mischiefs.
For this purpose various devices, part old part new, were set to work. An old established one was—the rule they had long before contrived to establish—viz. that the crown (i. e. as many members of government as could contrive to get their interests included under that name) was never to be considered as bound by any act of parliament, unless expressly mentioned in it, which of course all persons interested would, on each occasion, take care that, if possible, it should not be.
By this rule alone, a great part of the design was already accomplished to their hands; for, by this rule alone, special juries, with the benefit of an exemption from the obnoxious restrictions, which, under the proposed new law, operated as a bar to sinister choice and permanence, might have been preserved to all causes, in which, according to the established forms, the king was nominally a party.
But by this rule, if alone, the benefit of the exemption would not have been extended to all causes to which it should happen, to have been brought under the cognizance of special juries. Under this cognizance they had already, of their own authority, besides the above-mentioned criminal and other sorts of causes, brought in general all those which, in contradistinction to criminal, are termed by them civil causes, comprehending together almost all sorts of causes: and to this extension they had the assurance to ask, and the good fortune to obtain, the confirmation of the legislature, in and by this very act. (3 Geo. II. c. 25, § 15.)
To complete the imposition, it then became necessary to employ a further contrivance, for concealing from non-learned eyes the completeness of the exemption meant to be established.
The way in which they managed it is this:—In the case of a special jury, the jurors, instead of being determined as in the case of a common jury, were, as there has been such frequent occasion to observe—were, as they always had been—“nominated,” as the word is in the books of practice, by the officer of the court—the master. The master, then, for one at least, if not he alone, would have been the, or at least a, person, to whom, had the corrupt practice been in this case meant to be prevented, the prohibition would have been addressed.
But to apply to this branch of the corruption—to the branch which was under their own management—any sort of remedy, was no part of their intention. Care was accordingly taken, that, to the effect in question, neither to this officer, nor to any other officer, by the staying of whose hand that part of the plague which was of their own nursing would be staid or checked, should the prohibition in question, or any prohibition, be addressed.
In the case of a common jury, the sheriff, as above observed, was the person by whom, out of a much more numerous assemblage, supplied to him under legal rules, by other hands (in the first instance by the constable of the several townships) the choice was made. Corruption having risen to such a pitch, that the cries of the public had become troublesome, it was become necessary that the mischief should, in some quarter or other, receive a check.
Common juries were the sort of juries in whose instance, in comparison of special juries, the preservation of the faculty of corruption was, to the purposes of the judges, and the other lawyers, of least importance: the sheriff, in whose hands the choice of jurors of this class was more immediately reposed, was an officer, on whose obsequiousness, regard being had to his impermanence, and comparative independence, they could not place any such reliance as upon that of the master, their own permanent subordinate.
The sheriff, it was accordingly determined—the sheriff, and he alone—should be included in the prohibition: the master, it was determined, should not be included in it.
Such being the determination, what was the contrivance employed for carrying it into effect? It consisted in the employing of such words, and one word in particular, viz. the word return, as, while to an unlearned eye they would appear to bear, alike in every case, upon the officer, be he who he might, upon whom, on each occasion, the composition of the reduced occasional list (see above, Part I. Ch. IV. § 3,) and thence, as far as depended upon him, that of the actually serving list (See above, Part. I. Ch. IV. § 3) depended, would be in case of litigation, and in the meantime, by learned and interested eyes, would be seen to be, in respect of the technical signification attached to the word return, incapable of bearing, in the case of a special jury, upon any such person, or in effect upon any person, at all: and thus it was that, for want of a person on whom the words in question could be found to bear, the supposed remedy was, in that case, to be rendered altogether inapplicable and without effect.
Such accordingly will be found to be the virtue of that convenient and aptly chosen word—the word return. The sheriff was and is the person, by whom, in all cases, what is called the return was and is made:—the return, i. e. the list of the persons summoned, or at least therein said by him to have been summoned, to serve on the occasion in question as jurors: which list was and is, in all cases, to be given in to the officer of the court.
The difference, in this respect, between the two cases, was and is—that in the case of common jurors, the persons chosen for jurors, were and are, a number of persons greater than 24 (the number contained in the case of a special jury in the reduced occasional list:) and so much greater than 24 as to constitute an aggregate out of which, in the case of a common jury, the actually serving lists for any number of causes, tried, as belonging to the county or other district in question, on the same occasion (viz. at the same assizes, sittings, or sessions,) are to be taken: and these are, all of them, of the sheriff’s own choosing, as above: in the case of special jurors, they are chosen by the officer of the court—the master—the master packer, out of a list furnished to him by the sheriff, being the same “gross list” that the sheriff himself has to choose out of: and the master having pitched upon the 24, sends an order, called a writ of distringas, inclosing the list (called the pannel) to the sheriff, who has nothing to do but to summon the persons contained in that same list, and thereupon, in his answer, called his return, to declare and certify his having so done.
Let it not for a moment be supposed, that on this occasion, in framing for themselves this valve of safety, on the part of these scientific and ingenious operators any such cause as inadvertence had any share. Return is the word by which they found the choice designated when made by the sheriff:—nominate, when made by the master, the officer of the court. That the sheriff never is said to “nominate” jurymen—that the master never is said to “return” jurymen—these are matters, neither of which could, to these learned persons, or any one of them, applying their thoughts to the subject, for a special and to themselves highly important purpose, have for a moment been a secret. Had it made any part of their intention, that special jurymen (the rich and well-paid jurymen, to whom alone the exemption could have been of no use) should stand exempted from the over-frequent service, as well as common jurymen (the comparatively poor and unpaid jurymen, to whom alone the exemption could be of any use,) in this case, to the word designative of the act of the sheriff, by whom common jurymen are chosen, they would have added the word designative of the act of the master, by whom special jurymen are chosen:—to the word “return,” when employed for the description of the act meant in this case to be prohibited, they would have added the word “strike,” or the word “nominate.” But their design being the reverse of this, such accordingly was the language employed by them in the execution of it. To the “return”—the reiterated return—of jurors, in the case of over-served jurors, the prohibition they framed was accordingly confined: to the nomination—the reiterated nomination—of jurors in the same case, the prohibition was not extended.
To make it clear, upon occasion, that, in the provisions against package, permanence, and corruption, it could not have been the intention of this act to comprehend the case of special juries, another argument was provided.
When a prohibition is addressed to a man, care is usually taken, that, in some way or other, he should find a motive for conforming to it. The operation meant to be restricted being the act of the sheriff, and he the person to whom the prohibition is accordingly addressed, to constitute such motive, an eventual penalty, bearing upon the conduct of the sheriff, is appointed, and denounced accordingly in the act: to the master, of course, no such, nor any other eventual penalty, is denounced.
Now, from this omission, if the prohibition is understood to apply to the case of a special jury, results a sort of incongruity, by which the intention of the legislature, under the guidance of these learned persons, to exempt the master packer’s corps of dependent special jurors from being disbanded along with the common jury corps, is put still more effectually out of doubt. [Editor: illegible word] in the prohibition, with the annexed penalty, put upon the official act, of which the service of over-served juries—viz. the too frequently reiterated jury-service in the instance of the same individual, would be the result—if in this prohibition special jurors are to be considered as comprised, one consequence is, that the sheriff would, in case of prosecution, have to pay the penalty for an act done in obedience to orders made by the master, and contained in the writ, called a distringas, issued by authority of the court: for, as hath been seen, it is, in the case of a special jury, by the master, each time that the twenty-four persons to be summoned by the sheriff to serve on that jury are nominated, and as such included in the writ, as above, sent by him to the sheriff. Now then, to make a supposition, instead of leaving, between their times of service, the interval appointed by the act in the case of common jurymen, let the master, in the case of two special juries who are to serve on two immediately following occasions, compose the two lists altogether of the same persons. This, if the prohibition in question is to be understood as meant to comprehend special juries, is a direct transgression against the act.
On this supposition, though it is by the master (the officer of the court) that the offence is committed, it is not by the master, but by another person, the sheriff, that the penalty is to be paid. Such injustice, it would naturally be argued, cannot reasonably be supposed to have been the intention of the legislature. Therefore, concludes the argument, be the remedy what it may, it was no part of the intention of the legislature, that it should be applied to the case of special juries. And the inference being, if not strong enough to impose an obligation upon an unwilling judge, quite strong enough at the least to afford a sufficient warrant to a willing one, the eventual inapplicability of the remedy to the case in which it is most wanted, may, without much violence done to probability, be concluded.
From these provisions against package and permanence, provisions which ought in reason to have applied in common to both sorts of juries, and which accordingly were in appearance made applicable in common to both sorts, the sort called a special jury was thus in reality exempted:—which was the thing to be done.
Device 2—Rendering it unadvisable for a Sheriff to resist the Packing.
Possessed with the now antiquated notions about the importance of real jury trial to liberty, a meddling sheriff (it might at that time of day have been apprehended) might at one time or other start up, who, in the case of special juries, observing juries packed, and formed into a standing corps, in opposition to what might appear to him to have been the intention of the act, might, in relation to this most important application of it, feel disposed to use his endeavours to give effect to it.
For the repression of any such quixotism, it was expedient that provision should be made: and provision was made accordingly.
If, in the application of the act to special juries, he would have greater cause of fear in the event of his using his endeavours to give effect to it, than in the event of his contemning it, the conclusion was—and, it must be confessed, not an unnatural one—that no such endeavours would be used.
Contemning the act (it was accordingly contrived)—contemning the act in this particular, and thus leaving the system of package and permanence undisturbed—he would run no greater nor other risk, than that of having to pay a limited, and that at the utmost a minute, penalty:—a petty sum not exceeding £5 (3 Geo. II. c. 25, § 4.) Supporting the act, he would, in the instance in question (for so also it was contrived) find himself to be committing an offence—an offence called a contempt of court—and thereby subjecting himself to a mass of punishment altogether unlimited, and which, taking into account costs of defence, whether unsuccessful or successful, could not but amount to many times the amount of the penalty in the other case, as above. For, if the master, as above, puts into a list of special jurors (a list settled by him as above) any number of over-served special jurors, the order, given thereupon to the sheriff, to return those along with the other special jurors, is a writ or order of the court, disobedience to that writ or order an offence called a contempt of court, and the punishment inflictable for that offence, imprisonment for a time altogether unlimited, with or without nobody knows what beside.
At the worst, what was made clear was, that in leaving the act, in this respect, in a state of nullity, and the system of package and permanence undisturbed, he could not have anything to apprehend. Called to account (suppose him in any way, though by whom should he be called to account?) for having returned this or that over-served special-juryman: “The court,” he would have to say, “sent me a list of twenty-four persons to be summoned and returned by me to serve as jurors upon this cause, and this man’s name was upon the list:—how, then, could I have done otherwise? Had I omitted him, the court would have punished me as for a contempt.” Thus much aloud. Continuing the conversation to himself—“The king in parliament,” he would naturally say, “may, for aught I know, have forbidden me to return this man: but what I am sure of is—that my Lord Chief Justice has commanded me. Disobeying my Lord Chief Justice, the king (I am sure) would not protect me:—disobeying the king, my Lord Chief Justice (I have reason to think) will protect me. ‘No man can serve two masters;’ two oppositely-commanding masters: a prudent man will serve the strongest:—my Lord Chief Justice being the strongest, my obedience is for my Lord Chief Justice.”
Device 3.—Concealing the Power of Nomination given to the Master Packer.
Another exertion of lawyercraft may be seen in the care taken to throw a veil of concealment over the arbitrariness of the power exercised by the master in the nomination of special jurors. It is by him alone (as we have seen) that the “nomination”—the choice—of the forty-eight is made. Whatsoever appearance of judicial audience and impartiality it might, in the year 1777, and in a case of so much expectation and publicity as Mr. Horne Tooke’s case (See Part I. Ch. VIII. p. 96,) and under a judge no less remarkable for timidity than for arbitrariness, have been deemed advisable to assume, at this time of day, such is the progress that has been made, this arbitrariness may be seen stated without disguise in the books of practice—books written by lawyers for the information of none but lawyers, and without any apprehension of any such jealous eye as, by accident, might be cast on the business in the House of Commons. In the act 3 Geo. II. c. 25, § 15, how is the description given of this operation worded? Answer—in such manner as to convey the conception, that the choice was made somehow or other by somebody else, and that auspices were all that were contributed on this occasion by this judicial personage.—“Required upon motion as aforesaid” . . . (says the act) “to order and appoint a jury to be struck before the proper officer of each respective court.” Before is the word: and false as is the conception that will naturally be conveyed by it, yet so artfully is it chosen, that no charge of impropriety would be found to attach upon it. By this proper officer, it is true, are the forty-eight nominated in the first instance: but then the jury is not said to be struck, that is, the determination of the individuals that are to compose it completed, till, out of the forty-eight, twenty-four are struck off by other hands: viz. twelve by the attorney on each side.
By, and not before (it may indeed be observed,) is, however, the word employed in another part of this same act (§ 17.) But, nemo mortalium omnibus horis sapit: and, as every act of parliament is, or is liable to be, a pasticcio, nothing is more likely than that the clause with before in it, should have been the work of one hand, that with by in it, of another.
Learned Advice given accordingly to Sheriff Phillips.
Thus it was, that this act, which, at a time of ferment, and in the view of allaying the ferment, was, in show and pretence, provided in the character of a check to corruption in the case of jurors in general, special as well as common, was at the same time, in the case in which the mischief of the corruption was at beyond comparison the highest pitch (being the case wherein the interest which its pretended extirpators had in maintaining and increasing it was also at the same high pitch,) converted, as in the case of the lately-exhibited remedy against parliamentary corruption—converted, by suitable management, and with the happiest success—into a means of not only perpetuating, but aggravating the disease.
Of the state of things here depicted—of the nullity of the power of parliament—of the real supremacy of the judges—of this state of things, the living oracles, to whom Sir Richard Phillips, as above, had, at different times, betaken himself for advice, were, both of them, as will be seen, duly sensible.
This sheriff, being one of the speculative kind of men above supposed—ignorant, as all such men are—ignorant of the real state of existing circumstances—had been amusing himself with the fancy that King George is our king: that in consequence, disobeying King George, a man would be in peril, and that to obey him was the way, and only way, to be safe.
These learned persons knew, both of them, better things. “Your King George,” said they, “(to let you into the secret) is King Log: jump upon him, do anything else upon him you please.—King Ellenborough, King Mansfield, King Macdonald, these are your real ‘kings:’ these, should you venture to disobey but the least of them, you will find him a King Stork. As to your King George, to appeal to the laws of that nominal king, in justification of an act of disobedience committed against the orders of any of these real kings,—doing so, you would but make bad worse: doing so, you would but aggravate disobedience by ‘contempt:’ you might as well appeal to Bonaparte.”
Such was their advice: and very good, and, as the Lord Chief Baron says of it, “perfectly just” advice it was. The language in which they gave it was of course their own language—their own branch of the flash language: but the above is the honest English of it. As for the speculatist, the reformer, he found means to understand it, notwithstanding his ignorance: accordingly by these lanterns were his feet directed, as well as his paths lighted.
As to the Lord Chief Baron—so little in use have he and his learned colleagues been, to consider an act of parliament as anything, when their practice or their pleasure has been contrary to it, to him it was all the same whether, in the case of special jurors, the package and the permanence had or had not been prohibited by the act: the exemption provided in that case having been a covert one, it had escaped his observation, and he determined accordingly to conduct himself as it seemed to him, in disobedience to the law.
But to the sheriff, who, had he taken upon himself to give effect to what seemed to him to be the intention of the legislature, would have had to expose himself to the resentment of the judges, it was matter of serious anxiety to endeavour to ascertain what support he might promise himself from the letter as well as from the spirit of the law. The learned framers of this law, not having as yet attained for themselves, nor daring to promise to themselves, for their successors, any such complete and dauntless assurance, as hath now been declared by their existing successors, had made provision of their covert exemptions and loop-holes, as above: and of these loop-holes, our intended Curtius, the reforming sheriff, though he did not receive a perfectly complete or correct draught, received an intimation sufficiently instructive to save him from leaping, to no purpose, into the gulph into which he had been prepared to throw himself.
Thus in the way of useful instruction—instruction which, howsoever speculative, may at any time be made to lead to a practical purpose—the quantity of written matter unavoidably expended upon this contrivance in the art of packing may be turned to as extensive an account as possible. I would recommend it to your consideration, gentle reader, in the character of a sample of the mode in which, in matters of law, the public has been always served, and may always expect to be served, till by such service the destruction of society is completed, so long as, according to the existing order of things, it continues in the line of legislative penmanship to be served by lawyers, meaning fee-fed lawyers: it will continue to be served as hitherto it has been served—always with the same honesty—always with the same views—always with the same effect.
Special Jury System—just suspicion entertained of it.
That all the artifice that could be mustered for the occasion was not more than the urgences of the case required, may be collected from the particular recital prefixed, by way of preamble, to this very clause:—a recital from which it appears, that the indiscriminate extension of the special jury system to all causes, at the pleasure of the party on either side of the cause, had not been regarded altogether without distrust and opposition. “And whereas some doubt” (says that preamble, 3 Geo. II. c. 25, § 15,) “hath been conceived touching the power of his Majesty’s courts of law at Westminster, to appoint juries to be struck before the clerk of the crown, master of the office, prothonotaries, or other proper officers of such respective courts, for the trial of issues depending in the said courts, without the consent of the prosecutor or parties concerned in the prosecution or suit there depending, unless such issues are to be tried at the bar of the same courts.” Thus far the preamble: and then comes the enacting part, still preserving the word before, and giving to the party on either side the power to force upon his adversary the sort of judicatory thus corrupted.
As to “doubt,” if we may believe what is said in the report of a case determined in the year 1737, about seven years after the passing of this act, there could be no doubt in the case: the contrary to what is here insinuated was true beyond all doubt. No more than about four years before the passing of the act, a search had been made in this view: in thirty years then last past, that is, from about the year 1695 to about the year 1725, no instance of the ordering a special jury without consent of parties on both sides had been found: nor is it said that any instance had been found anterior to that period. Notices of the existence of such a power had indeed been now and then thrown out, but which, if that statement be believed (and no reason can be found why it should not,) were without any foundation either in regulation or in practice: were thrown out, and not being true in fact, it seems difficult to imagine with what view they could have been thrown out, unless it were with the view of paving the way for this statute.*
Harmony between the Astutia of 1730, and do. of 1808.
We come now to an observation, which brings the consideration of the so long ago enacted statute within the limits of the present epoch: I mean the use which, on the occasion in question, appears to have been made of it, by the Lord Chief Baron, with the privity of course, and consent, all along, of his learned and reverend colleagues.
The deficiency by which, in respect of the clause prohibitive of permanence, the act was and is rendered inapplicable to the subject of special juries, had probably been observed and understood, but was not thought fit to be indicated: it was not to be indicated—why? lest peradventure, attracting parliamentary notice, it should be supplied.
But, to the sheriff, in pursuance of the advice that had been given him, viz. from the temple, it might have happened to bring the question before the court, viz. in the mode, in and by that advice recommended. If so, his lordship and their lordships were ready for him. On arguing the matter on the ground of the statute, its originally intended inefficiency as to this point would have been brought to light. Though not perhaps through malice, the would-be reformer would have been found a trespasser: and, in addition to costs (costs got by him in the negative sense,) in addition to such his costs, accompanied with a reasonable dose of contempt in the form either of avowed contempt or pity, he would have got his labour for his pains.
Against the hypothesis thus advanced, this or that passage may be objected, in which the prudence of the serpent does not appear quite so conspicuous as the simplicity of the dove.
But should the fact be even admitted, the inference has no need to be admitted along with it. In a line of action to which a man is accustomed, the most consummate skill is not incompatible with equally consummate awkwardness in a line to which he is strange.
The line to which an English lawyer, and in particular an English judge, is accustomed, is that of making the most of the abuses, of which the common, alias unwritten, law, and in particular that branch of it which regards judicial procedure, has been made up, viz. by the hands, and for the benefit of his predecessors: of making his advantage of them on every occasion, of defending them as often as it may happen to them to be attacked: opposing every effectual remedy, and, as often as remedial measures cannot be kept out altogether, infusing, into such as are forced in, as large a proportion of insufficiency and mischievousness, as it may be found possible and prudent to introduce.
The line which is altogether strange to him, is the line of honest and beneficial legislation: including the abolition of such mischievous and inefficient arrangements as may happen to have taken place already as above. Accordingly, it is not by mere ill will—the immediate result of adverse interest—that a true-bred English lawyer, bred in the school of Coke and Blackstone, is prevented from doing anything well in the line of honest and beneficial legislation: it is moreover by genuine and unaffected dimsightedness and awkwardness.
Even though the task to be performed were of no stranger a complexion than that of making a pair of shoes, the most expert as well as learned and eloquent advocate that ever pleaded at an English bar, or judge that ever sat upon an English bench, would probably find it matter of extreme difficulty to make with his own hands any such article. But supposing the task to be the making of a code of laws, in such case, even though by some strange revolution or metamorphosis he were on a sudden to become personally reconciled to it, he would find much less difficulty in the making of a pair of shoes than in the making of any such code of laws as should prove to be (supposing such to be the quality required to be given to it) a really useful instrument in the hand of impartial, undilatory, unvexations, and unexpensive justice. In the making of the shoes, nothing more irksome could have happened to him than the employing, in so relatively useless and unprofitable a work, the necessary quantity of labour and time: from the very first stitch to the very last, he would not have found himself under any such unpleasant necessity as that of violating any maxim or opinion he had been accustomed to regard with affection and respect, or acting in opposition to the interests, opinions, or feelings of any of his friends. In the making of the beneficial body of the laws, he would not only have to lament, at every stroke of the pen, the misapplication of so much labour and time, but at every other line he would feel himself running counter to some such favourite maxim or opinion, as well as running counter to the interests, diminishing the profits, disturbing the ease, lowering the reputation, galling the pride, and, in the words of Lord Ellenborough’s libel law, “hurting,” “prejudicing,” “injuring,” and “violating,” the “feelings” of the companions of his youth, and most familiar friends.
He would find himself, or, as now we say, feel himself, running counter to that which, in lieu of the once universally pursued, or professed to be pursued, but now antiquated and exploded end and object—viz. the greatest happiness of the greatest number, has now of late openly, deliberately, and in black and white, been avowed and acknowledged as and for the permanent end and object—if not of all government, of the government of his Majesty’s most favoured set of servants—viz. the preserving from “hurt,” “prejudice,” “injury,” “violation,” and every other such unpleasant accident, the feelings of “great characters,” in “high situations.”*
LEARNED ADVICE FROM THE TEMPLE.
Learned advice, in the shape of a letter from the Temple, having, on this occasion, borne no inconsiderable part in the business, viz. partly as having afforded guidance to the sheriff, partly as having helped to afford legal notice to, and been honoured by the declared approbation of the Lord Chief Baron, the reader will probably expect to see it laid before him here, instead of his being sent in quest of it to another publication.
I proceed, therefore, to exhibit a copy of it, subjoining, in the form of notes, a few observations, of the propriety of which the reader will judge.
“TO MR. SHERIFF PHILLIPS.
I agree with you in thinking, that the clause referred to in the inclosed act of parliament applies to special as well as common jurymen;*for if it be inconvenient† for the latter to attend oftener than the act requires, it must be much more so to the former, on account of their rank and station in life.‡
“But with regard to the sheriff, I think there is a very material distinction between common and special juries. With respect to the former, the returning them upon the venire facias rests with the sheriff; and as he is required by the 5th section of the statute 3 Geo. II. c. 25 to enter or register in a book to be kept for that purpose, the names of such persons as shall be summoned, and serve as jurors on trials at Nisi Prius, with their additions and places of abode, and also the times of their services, so I think that if he were to return any persons to serve as common jurymen oftener than he ought, he would be liable to the penalties of the statute; but with respect to special juries, they are struck before the master of the King’s Bench, and the remembrancer in the Exchequer, under the 13th section of the above act of parliament, which declares that the jury so struck shall be the jury returned for the trial of the issue; and accordingly their names are specially inserted in the distringas. If the sheriff, therefore, who has nothing further to do with the striking of special juries, than attending with the freeholders’ book out of which their names are taken, were to object to the nomination of such as had before served within the limited time, and his objections were overruled, he would not, I think, be liable to any penalty for summoning them upon the distringas; and indeed, if he were to refuse to do so, he might incur a contempt of the court, who would not suffer their process to be disputed* in the execution of it by the sheriff. If you should think it worth your while,† however, to rectify‡ the practice which has obtained, of calling so often upon special jurymen to attend at Nisi Prius, the proper mode, I conceive, would be, when you attend with the freeholders’ book for the purpose of striking a special jury, to carry with you the book containing the names of such persons as have already served within the last two terms or vacations, and apprize the master or remembrancer* thereof, requiring him not to nominate them afresh; and if he does, you might try the effect of an application to the court to set aside the nomination, or have others nominated in lieu of those who had served before, on the ground that you might otherwise by possibility be subject to a penalty for summoning them. By this means the opinion of the court would be obtained,† and they would probably direct their officers to alter the practice‡ in future.
“It would not, I think, be prudent for you to hazard the incurring a contempt of the court by not summoning any of the jurors named in the distringas, on the ground of their having served before within the limited time; particularly as you would not, I conceive, for the reasons I have given, be liable to a penalty for summoning them; and though the jurors who had served before might be excused from serving again, on producing to you a certificate∥ of their former attendance, yet, I think, that the judge at Nisi Prius would not be inclined to fine the officer who had not¶ nominated them.—I remain, dear Sir, your obedient servant, * * * * * *.”
Temple, March 10, 1808.
ADVICE FROM LINCOLN’S-INN.
This Letter, why introduced here.
Theauthority of the learned gentleman, who dates from Lincoln’s-Inn, stands upon a footing very different from that of his learned brother, who dates from the Temple:—a very different footing—and it must be confessed, a very inferior one. Both luminaries are indeed alike eclipsed by stars, such as * * * * *: and, by this common occultation, both are placed in the scale of authority thus far on the same level. But the Templar, whose “observations” are so “perfectly just,” is by this adoption become the child of, or rather quoad hoc one person with, the pre-eminently learned judge: to the purpose of the present inquiry, he is in effect Lord Chief Baron: while his learned brother on the other side of Fleet-street, less fortunate in the date of the application made to him, missed thereby the having been admitted to so much as a chance of so honourable an advantage.
Why then introduce him, or his letter, here? says a natural question, and by no means an irrelevant one. The answer is—because it is upon the evidence of this gentleman that the existence of the guinea-corps, and the notoriety of such its appellation, rest.
As to his title to credence—a remark that has been made already is—how improbable it is, that if a matter of fact, stated as notorious, were not really so, it should be mentioned as such by a professional man circumstanced as this gentleman appears to be. True it is, that from the mention made by him of this guinea-corps, a suspicion might arise, that feelings were harboured by him, heretical and rebellious as towards the powers that be: and that it was for the gratification of these wicked feelings that he had trumped up this story about the guinea-corps, that statement having in fact no truth in it.
But, for the clearing of his character, in which, so far as concerns evidentiary trust-worthiness, the character of this inquiry is, in some measure, involved, I feel it incumbent on me to show, which I shall do in proper place, that in his feelings—I mean, in the feelings manifested in this his letter when taken in all its parts—there is nothing that does not harmonise with the purest jurisprudential orthodoxy: which being the case, it would be an injury done not only to this argument, but to the reputation and prospects of the gentleman himself, whoever he may be, if any suspicion were left unremoved, of his having anything in common, but the formal place of date, with any such reprobate as the author of these pages.
Not but that in this busy age, in which reform, as in the days of Balak and Balaam, prophecy is become contagious, he too (I mean the learned and practising gentleman,) as will be seen, is a reformer. But then his plan of reform is (as will also be seen,) in the style of the Perceval school, a temperate one: meaning by temperate, a remedy which shall either leave the disease as it found it, or by the blessing of the Almighty! (meaning the almighty of the No-Popery worship) make it worse.
After the necessary preface follows the learned letter in hæc verba, with a few occasional elucidations by another hand.
The Letter, with Annotations.
Lincoln’s-Inn, Sept. 1, 1808.
Inclosed you will receive the act relating to the summoning of juries on trials at Nisi Prius, and the three letters* with the perusal of which you have favoured me.
“In respect to the act itself, it appears to have been passed with the sole intention of relieving those who are liable to serve on juries, from the inconvenience which they were before subject to, from their constant liability to be summoned from term to term, without any consideration or respect paid to the labour of their previous attendances, and it is most clear that it did not originate in any jealousy† entertained that men so summoned and serving, would fail to act uprightly between the parties.‡
“Mr. * * * *, than whom no man can be better informed on the subject, is perfectly clear and correct in his observations,* and in his statement of the manner in which special juries are struck.”
“One circumstance ought to be attended to, which must remove all suspicion† on this subject: it is this, that special juries are struck under an order of the court only,‡ and the practice is for the opposite solicitors to strike out a name alternately until the list is reduced to the proper number, so that it must be the fault of the defendant’s own solicitor, if he does not obtain a respectable list∥ for the trial of the issue.”
“If any serious inconvenience were to arise from the present practice of striking and summoning special juries in Middlesex, I apprehend that it is the proper province of the courts above to interfere and introduce a reform, without the interference of the sheriff, who has, as Mr. * * * * states (and in this he is supported by the statute,) nothing further to do with striking of special juries than to attend with the freeholders’ book, to enable the parties before the proper officer to fix upon such as are to be returned for the trial of the cause, and named in the distringas.
“As under these circumstances the sheriff cannot, by any possibility, in my opinion, be subject to any penalty for summoning the jurors named in the distringas, although they may have before served within the time limited in the general act; I do not think that the objection which you have taken is deserving of your further attention; but if you think it otherwise, the proper mode of obtaining the opinion of the courts on the subject is that which is pointed out by Mr. * * * *
“There is one reform,* however, which I conceive to be wholly within the power of the sheriff,† and that is, to correct the freeholders’ list, by expunging the names of all such persons who, from low situations in life, have crept into a little independence, and, by artifice and collusion with the inferior officers, get their names placed upon the freeholders’ lists with the proper additions, with a view principally to their adding to that independence‡ by the fees payable for their serving on special juries: I know several of this description, who are ludicrously described as being deeply concerned and interested in the guinea-trade,∥ and a diligent scrutiny, with the assistance of the returning officers, might lead to this reform.
“I do not, under this last observation, mean to insinuate that even such characters acting upon oath are likely to do wrong,* or that they do not possess sufficient powers of discrimination to decide rightly; but I think that the special jury fees should be received only in the way of compensation for actual expenses and loss of time, and not as matters of profit.†
MAXIMS CONCERNING REFORM, DEDUCED FROM THE ABOVE LETTER.
The Maxims themselves.
The subject of reform being at present on the carpet, and a variety of opinions afloat, a few maxims or aphorisms, half a dozen or thereabouts, and containing the substance of so much of the above learned dissertation as regards that subject, may, perhaps, in these unsteady times, be found not altogether out of season.
Lest the eye of the reader’s mind should find itself incommoded by too strong a blaze of light bursting in upon it at once, to prepare it for the brilliancy of the more grand and comprehensive principles, I place in front a rule or two, confined in their extent to the only subject that belongs directly and necessarily to these pages—viz. the institution of special juries:—
1. When, for the execution of a plan repugnant to the acknowledged principles of the constitution, and to the equally acknowledged injunctions of an act of parliament, 48 persons have been selected, of whom, for the insuring the success of that plan, 12, or upon occasion a single one, are in every individual instance sufficient, the faculty of discarding 12 out of the 48 will, if lodged in proper hands, be, in every such instance, sufficient to defeat it.
For (says the Lincoln’s-Inn letter) “one circumstance . . . . must remove all suspicion on this subject: . . . . Special juries are struck under an order of the court only . . . . so that it must be the fault of the defendant’s own solicitor, if he does not obtain a respectable list for the trial of the issue.”
2. If, in the instance of a set of men of whom (except their being in possession, each of them, of a portion of property which may be insufficient for the maintenance of any one of them) nothing more is known than that they are, all of them, pensioners during pleasure under the authority on which theirs was intended and is said to serve as a check—if, in the instance of a set of petty placemen so circumstanced, there be any cause of apprehension, lest, on any occasion, they should manifest, as towards that authority, a degree of obsequiousness inconsistent with probity and independence—in such imaginary case, a sort of sanction which, as often as any real difference of opinion has had and continues to have place among them, is trodden under foot, would, as against such danger, or cause of apprehension, afford a sufficient security.
For “I do not” (says our learned adviser) “mean to insinuate, that even such characters, acting upon oath, are likely to do wrong:” “such characters,” viz. persons who, by this same learned gentleman, have just been described as “persons who from low situations in life have crept into a little independence, and by artifice and collusion with the inferior officers, get their names placed upon the freeholders’ list, with a view principally to their adding to that independence by the fees payable for their serving on special juries.”
3. If, in the whole expanse of the all-perfect system, it were possible that a particle of imperfection should anywhere be found, the imputation, in so far as it were just, would fall—no part of it on the most powerful, every part of it on the least powerful, of all the classes that could be found concerned in it: no part of it upon those under whose eye, and by whose authority, everything is done that is done, every part of it on those whose dependence on that authority is complete and absolute.
Accordingly, in the instance of the only reform, which is represented as lying within the power, of the only person in whose instance any inclination to that effect has been perceptible, the “reform” suggested consists in the “expunging the names of all such persons who from low situations in life have crept into a little independence.” Thus far the suggestion of the learned reformer: for the due understanding of which, it is necessary to be considered, that the consequence would be (nothing less being sufficient to insure its continuance,) that if in numbers sufficient for the purpose, persons sufficiently adapted to the purpose were not found remaining, other persons of the necessary complexion, and in sufficient number, would of course be taken in to fill up the gap.
4. Every man—so he be high enough—is a proper—and except others seated on the same level, and linked with him in the bands of the same interest, the only proper—judge in his own cause.
Accordingly, as we have seen, “it is the proper province of the court above,” (says our learned reformer who dates from Lincoln’s-Inn) “to interfere and introduce a reform.”
5. The hands by whose industry abuse has been created—by whose steadiness it has been preserved—and by which, whether created or only preserved by them, the profit has been, and continues to be, reaped—these are the hands at which the extirpation of it is to be sought.
6. When, for example, as long as he has been sitting on his bench, a judge has been in the habit of treading under foot, with open eyes, the authority of parliament, the judge himself is the proper authority to apply to, if you would have him cease doing so; parliament, not.
For the letter, in which the Lord Chief Baron’s determination to persevere in that same habit had been deliberately declared, makes one of “the three letters with the perusal of which” (says this learned gentleman to the sheriff) “you have favoured me.”
Corroborations from Lord Eldon’s Scotch Reform.
Such are the articles, which, in substance and effect, though not in words (for words are ever under the command of existing circumstances) constitute, so far as the most probable interpretation, or, as lawyers say, construction, which I have been able to find for the learned words in question may be found to be correct, part and parcel of this our lawyer’s creed.
I might have said the lawyer’s creed: for, as already intimated, with here and there a possible exception, too rare at any rate to be to such a purpose worth noticing, being all bred in the same learned school, all cast in the said learned mould, whoever sees one learned gentleman sees all: nor are these articles of the number of those, which, to obtain acceptance and adherence, require signature.
Thus much must be confessed—viz. that as yet it is only in so far as the individual learned mind in question can, with propriety, be deemed and taken as and for a fair sample of the genus, that the propositions in question can in their herein alleged character of articles of the lawyer’s creed, be with propriety received as genuine.
In that same character, as far as concerns reform of law abuses, can the genuineness of these articles find any man still sceptically enough disposed to doubt of it? Let him turn to the list of Commissioners for the Reform of Scottish Judicature. (See Report of their proceedings as printed for the use of the House of Commons, in pursuance of an order dated June 9, 1809.) Let him see with what religious care the name of every person is shut out, on whose part any the least desire to see defalcated any the least particle of abuse from a system composed wholly of abuse, had ever been perceptible; while those of the maintainers and defenders of the whole system are with correspondent carefulness collected and inserted.
Taking, for the basis of his calculation, the number of two-and-thirty reapers, let him admire and calculate how rich a harvest of reward is destined to be reaped by learned industry, occupied in the field of reform, in the accustomed course of learned husbandry.
From what they have done already, let him calculate what they are about to do. Let him pray—if haply into his religion be admitted any particle of regard for the welfare of the people, and the ends of justice—let him pray, that the ministers of such justice may, in the sense most beneficial to the country, be prevented in all their doings; that what has been begun in doubts may be continued and ended in the same; and that of these doubts, the distribution of the matter of reward throughout the mass of learned merit, may, as being to the country the least bitter, be the only fruit.
Let him behold in idea, and, if so it please him, in black and white, a judicatory,* in which a business occupies as many years as, in another sitting by the side of it,† the same business would occupy hours, or perhaps minutes, and these learned persons not hesitating to attach their signatures to an opinion that “the present forms are now, or by the authority of the court may easily be rendered, fully adequate for the purposes of justice and dispatch of business, without parliamentary interference,” (p. 4.)
Let him behold the signature of the author of Marmion annexed—not to a receipt for the profits of Marmion, but—to the produce of the learned labours of this constellation of learned commissioners, so worthy to have chosen the præses whom they chose—so worthy to be chosen, as in fact they had been chosen, by that præses.
Let him give thanks, that, to his other offices, the author of Marmion does not add that of calling up the late Earl, in the forenoon or the afternoon, and telling him what to do, as soon as official advice has been received that the enemy is within his lines.‡
After reading, as above, the history of the appointment and proceedings of the commissioners, let him, among the speeches of the Edinburgh advocates,∥ under the name of the author of Marmion, read a rhapsody of irrelevant buffoonery, in which he will not find a serious word, except what is employed in passing undiscriminating condemnation on every imaginable alleviation of judicial abuse: including, in such his condemnation, everything which the noble and learned institutor of this commission either has given it him, or, unless it were in whispers, could have given it him, in charge to promote.
In these public documents, including the above-quoted probationary ode in prose, which, if Lord Ellenborough’s ridicule-proscribing branch of libel law were applied to it, would be from beginning to end a libel—in these howsoever libellous as yet unpunished documents, having read what Lord Eldon intended should be done, and having predicted (as any man may do without the gift of prophecy) what will be done, let him give thanks, that no one of Bonaparte’s dukes is as yet known to have been invited over to replace the Duke of York: and that if, by that noble and learned oracle of the cabinet, advice to any such effect has ever really been given, doubts, of the nature of those clouds, which never cease to exhale from the same ever-pregnant source, continue for the present to hang over it.
Accordingly, amongst similar articles of information furnished by those same papers, may be found this (p. 4): viz. that, “at a general meeting,” (in Edinburgh) at which “the judges of the Court of Session were invited to attend . . . . several of the judges (18th March 1809) assisted . . . . when the meeting finally resolved, that . . . . the present forms are now, or by authority of the court itself may easily” (as easily as they always might have been) “be rendered fully adequate for the purposes of justice and dispatch of business, without parliamentary interference. And . . . . that the late division of the court . . . . has . . . . for the present removed the necessity of any further innovation upon the forms and constitution of the court.”
Finally, let him give thanks, if so it be that no commission of review or revision has as yet passed the seals, directed by his Majesty to his trusty and well-beloved James Crawfurd, John Brickwood, Allen Chatfield, John Bowles and Alexander Baxter, Esquires, nominating and appointing them to review and revise, and finally to audit and pass the accounts of them the said James Crawfurd, John Brickwood, Allen Chatfield, Alexander Baxter, and John Bowles.
TRANSACTIONS AT THE REMEMBRANCER’S.
The Transactions themselves.
We have thus far attended our knight on his negotiation—an epistolary one we have seen it was—with the Lord Chief Baron. We have moreover thus far seen the fruit of it:—instead of the justice called for, we have seen him put off with a figure of speech: a sarcasm some might call it, others an oxymoron, made at any rate out of an Italian epigram in the shape of an epitaph, and that so old as to have grown stale:—instead of the fish prayed for, a serpent given, and with a sting too in the tail of it, though perhaps not a very sharp one.
Let us now follow him to the packing office.
Whether it was that the advice couched in the epigram had not as yet been received, or, having been received, the eloquence of it had failed of producing the effect it looked for, so it was that our Quixote Sheriff took the irregular course of doing “better than well.” Besides the blame—for such it appeared to him—of acting, in the teeth not only of a principle of the constitution, but of an act of parliament, he saw, or thought he saw, a penalty of £5 for every transgression, impending over his head. Raw and uninstructed as he was in the practice of courts, led astray by a propensity to innovation, speculation, and the false philosophy of the times, a conceit possessed him that the tide of corruption ought rather to be stemmed than swum with, and that acts of the legislature were designed rather to be obeyed than to be contemned. Misled by theories, parliament, to his fancy, presented itself as superior to judges. It was not long before his error stared him in the face.
Under such impressions it must have been that, on a certain day to this compiler unknown,* our knight presented himself at the busiest of the two Exchequer packing offices—the office of the deputy remembrancer—with the freeholders’ book in his pocket: “having previously provided himself with a list of persons who had served . . . . within two terms:” viz. in the hope of preventing, if practicable, their serving again, till the time should come at which their service would not be an infringement of the prohibition, certainly pronounced by justice, and supposed to be pronounced by law.
Conceive who can, the surprise of Mr. Deputy Remembrancer, when, the figure of the sheriff appearing before him—and, with the list of over-served guinea-men in one hand, and the act of parliament, instead of a pistol, in the other, advancing upon him—he heard himself called upon, contrary to all precedent, to pay obedience to the law. This was rank innovation: this was plain jacobinism. Meantime, what was to be done? The sheriff with his instrument of terror was present: the reverend judge, with his instrument of support, his Italian tombstone, was not present.—Our Felix trembled.—The existence of the law was recognised, its application admitted, its authority submitted to: submitted to for the moment, though even then not altogether without wry faces. During the continuance of the ague fit, the instrument of terror being all the while in view, “two juries” were struck: and “in striking them, the official striker” was, “to a certain extent”—though only to a certain extent—influenced by this principle. Of the pockets which, cause after cause, and “term after term,” had been used to come and load themselves with guineas, some, though some only, were for the moment kept at home, kept at home for awhile to empty themselves, and make room for others: others made, of course, as nearly as they could be found, of the same materials, and of the same cut.*
Obsequiousness having thus been produced—but in a quarter, and in a direction, very different from that in which by law (I mean by the judicial makers of law) it had been intended, and been accustomed to be produced—a natural object of curiosity will be to know what length of time so extraordinary a phenomenon continued to have place.
The obsequiousness—the compliance continued just so long as the force by which it had been produced, viz. the instrument of terror above mentioned, continued to be applied. The acting force being removed, reaction regained the ascendent. The pliancy lasted but for two strikings: the principle of elasticity displayed itself, rigidity succeeded, and regularity (I mean what in Westminster-hall is meant by regularity, viz. regular disobedience to law) was restored.†
The cause of this return to regularity and social order lies at no great depth. Though, between the titular remembrancer of the Exchequer and his deputy, there exists, unless by accident, no more connexion than between the emoluments of his principal and the duty on pretence of which the emoluments are received, between the pre-eminently learned chief of that judicatory and his subordinate the aforesaid deputy, the intercourse is necessarily close and intimate.
Instruction gained—Definitions and Maxims.
Of two things one. Either in this office an act of parliament is felt in the character of a binding force, acting as a bridle upon private inclinations, or it is not: if it be, the consequence is—its force having, in the present instance, proved ultimately inefficient—some external force must have been employed in overpowering it; and if so, we see, without much danger of error, what that force was: but if not—if in that office an act of parliament is really not felt in the character of a binding force, what in that office is the state of justice?
In that office—thence (might have been added) in the court under which it acts—thence again—in the other courts in the view of which it acts:—but of this elsewhere.
Upon the whole, bench and office together—doctrine and practice together—doctrine leading practice, practice expounding doctrine—we may obtain, if not exactly that sort of instruction and satisfaction which an unlearned eye, unversed in the practice of courts, might be apt to look for—at any rate, a definition: a definition which, having for its subject a word of no scanty extent, and (relation being had to its extent, and the application given of it) of no mean importance, presents some claim to notice.
Well, considered as a quality of action—in any such phrase, for example, as acting well—is a relative term, involving in its import an implied reference to the situation of the person whose agency is considered.
On the part of a chief judge, notice having been received by him of an act of parliament prohibiting a certain practice, and the application of the act to that practice having been deliberately admitted, acting well consists in defending the practice in black and white, and after a momentary interruption, produced in another subordinate station by present urgency, causing it, or at least deliberately suffering it, to be resumed and continued as before.
On the part of a deputy remembrancer,—an officer occupying an office subordinate to that of the chief judge—acting well consists in acting, under the direction of the judge, in the maintenance and support of such supposed prohibited and illegal practice, and, after notice and recognition of the illegality, and a momentary stop put to the practice, resuming it, and with it the habit of considering the authority of a judge as superior to that of the legislature.
As to better than well, in the unanimous opinion of all the commentators, the use of the phrase is a flower of rhetoric—a figure of speech—some might call it oxymoron—others irong; the opinion intended to be inculcated being the reverse, or nearly so, of the meaning which on the face of the literal sense stands expressed. Ill is the meaning really intended to be inculcated; so that, upon the whole, the doctrine, meant in and by the epistle in question to be inculcated, may be comprised in two short and well-matched aphorisms or maxims:—he acts well, who violates the law: he acts ill, who either obeys it himself, or calls upon others to obey it.
STATE OF THE PACKING SYSTEM, ANNO 1809.
COMMONS’ DEBATE, 24th APRIL 1809. PACKING AND CUTTING.
Abuses touched upon—Packing and Cutting.
The 24th of April 1809 forms a new era in the history of this art.
Of the state of this branch of business, a corner is now unrolled before St. Stephen:—the eyes of the saint, as in these cases must sometimes happen, especially if the cry be loud and troublesome, half open themselves to the abuse: but then immediately, as usual, close upon it.
Up stands Mr. Whitbread, and more or less light is thrown upon parts, or supposed parts, of judicial practice:—
1. Package of jurors, viz. in the offices which we have seen established for that purpose.
2. Bribery of do, doubled: double guineas substituted to single ones.
3. Unobsequious jurors dropped; or, in the fashionable and familiar phrase, cut.
4. Where, under the name of the Crown, the firm of Judge and Co. is party, double fees to Judge and Co.—at whose expense need not be said.
Package—a complex process, in which, properly speaking, the operation of cutting is included—this, being the very thing in question, will, together with cutting, afford two sections to this present chapter: double feeing—an operation in some respects included under package, in others distinct from it, but in all respects connected with it, claims a chapter to itself.
On this occasion, amidst the uncertainties to which newspaper-reporting is liable, one thing seems pretty clear, viz. that, in respect of depth and extent, the nature of the mischief was misconceived:—misconceived and under-rated by the honourable gentleman, by whose public spirit the matter was thus brought forward:—“That the master of the crown-office should have in his discretion the nomination of juries,”—this is what to him appeared—as well it might appear—“a great hardship.” Of the state of things thus spoken of, the description thus given is thus far correct. But when the mode in which the effect is brought about comes to be spoken of, there it is that the description fails: “Of the persons summoned on the pannel, such names passed over as he thinks fit, without calling them on their fines, upon the mere plea that they could not attend, and retaining such names as he thought fit. . . . .”* To apply a detailed correction to the several mistakes contained in this part of the statement, would, after what has been said in the two former parts of this work, be a useless operation: the general result is clear enough; viz. that it is by a fraudulent contrivance, and that such a one as requires to be renewed on each individual occasion—by irregular practice in fraud of the law, and not by the law itself, as constituted by the avowed and regular practice of judges—that the “nomination” and nullification of these supposed and pretended checks upon the despotism of judges is effected.
Of these errors the origin appears sufficiently obvious. Though in several points not conformable to the view given of the case by Sir Richard Phillips, there remains conformity enough to render it probable, that it is from his representation of the matter, as given in his book, that that of the honourable gentleman was taken. I mean the “passing over”—and “upon the mere plea that they could not attend”—and so forth. By this the conception conveyed (we see) is—that, taken in its totality, the gross list comes into the master’s hands from some other quarter: and that all that it is in his power to do is—to cause to be discarded out of it this or that individual; and that even that cannot be done in any case, without a fresh as well as false pretence: whereas, as we have seen over and over again, the truth is—that, of the persons whose names are put upon this gross list, every individual, without exception, is constantly and regularly chosen by him, and that if, for ridding it of this or that obnoxious individual, any such pretence should happen to be necessary, it is not by him, by that officer, who is regular course nominates whom he pleases, that any such falsehood need be, or indeed could consistently be, averred.
As to Sir Richard Phillips, happily for the public he neither was, nor ever had been, a lawyer: on the particular occasion in question, he plunged not—time would not have suffered him to have plunged—into any such fœtid mass of dead letter, as the labyrinth composed of the books of practice. He did—what in his place every non-lawyer would have felt the necessity of doing—he betook himself to the living oracles of the law, such as were within his reach; and what their responses were has been seen in another place: the point here in question is of the number of those which may there be seen involved by them in some of their gilded clouds.
To what purpose these two paragraphs? to serve as a critique upon a newspaper?—No: but to show that the real complexion of the ulcer is far more angry than that which it then presented to the eye of the honourable gentleman: that the real depth of it had not then been sounded by him: and that it continues to call, and with increased energy, for the renewed and more serious exertions of his healing, but in the first place of his probing, hand.
Had it not been for irregularities, as we have seen—some but supposed, others, as we shall see, real—the subject, as far as upon the face of this report it appears, would never have received a visit from those experienced eyes, which reflect so much useful light on every subject on which they fix. For this, wherever law is concerned, is the general error: ascribing whatever is amiss—not to regular practice, but to irregularities: not to the system, but to A or B, to whom on this or that occasion it happens to be acting under it. This is the grand error of errors—supposing regular practice to have had not only justice, but justice alone, for its object; whereas it never has had justice for any part of its object, nor, in the nature of men and things, circumstanced as judges have been, ever could have had.
On the subject of cutting and being cut, up rises Mr. Marryat, and speaks of one person, viz. himself, to whom, after verdicts given against the crown, no such accident had happened; and there the evidence, or at least the report, as above given of it, stops.* But, stopping there, it proves nothing. It has already been stated (Part I. Chap. IV. §4,) that verdicts after verdicts may be given against the crown, and to every officer that ever calls himself the crown, the event of the cause be, personally speaking, a matter of indifference. On a question of revenue, where is the chancellor of the exchequer—where is the solicitor of the treasury, customs, excise, stamps, assessed taxes, or any other board, who, any more that the honourable gentleman himself, would wish for a verdict against evidence?
Up already had arisen Mr. Attorney-general: and here, in the person of this great law-officer, may be seen the prudence of the serpent hiding itself under the simplicity of the dove:—“With respect to the partial summoning of jurors, as he himself did not summon them, he would not” (says the report) “undertake to say anything of the fact from his own knowledge.” As to summoning, that must have been the mistake of the reporter: summoning could never have been the word of the great law-officer. As to great law-officers, what may happen to their science is—as to mere matters of fact, to put on the mask of ignorance: what never happens to it, is—to misapply law words. Nominating is the word, as well as the practice, here: and to the great law-officer in question, most assuredly it never had happened to nominate, any more than summon, a single juror in the whole course of his life. But, of the seven offices belonging to the three courts, there is not one but what has its officer (already designated so often by the name of the master packer,) by whom this nomination, as so often mentioned, is regularly and avowedly performed: nor is there more than one, if so much as one there be, that has not its book or books of practice, in which this nomination is regularly mentioned as being so performed.
If the practice of the courts in which they practise, and the books in which that practice is delineated, be to such a degree a secret to great law-officers, can it be wondered that they should be equally so to lay-gents, such as sheriffs and members of parliament?
So much for ignorance: the quality of the person considered, I should have said nescience: nescience, the cause or accompaniment of so amiable a quality as simplicity. We come now to confidence, the result and fruit of it.
“But he was confident” (continues the reporter,) “that any officer of the court, who would venture on such a practice, would certainly lose his place.” Thus far the great law-officer.
For my part, the confidence of which my ignorance has been productive, is as strong as his can possibly have been: it is, however, of a nature exactly opposite. In each of the seven offices there is but one officer, by whom (unless it be, as we have seen, by his deputy, (See Part I. Ch. VIII. p. 101,) jurors are nominated;—(I should have said, or are supposed to be nominated;) and he (as we have seen) is the officer, who, by whatever other titles designated to other purposes, is to this purpose commonly styled the master. But, were there a hundred of them, there is not one, who, for any such practice as the practice here, though improperly, designated under the name of “a partial summoning”—say partial nomination—of jurors, could by any possibility be made to “lose his place.” The nature of the case does not admit of it: the very nature of the case—unless any such odd accident should happen to the officer as that of having an Italian epigram, ready cocked, which he wants to bring down a reformer with—the very nature of the case, as we have seen, excludes all evidence. Stiles, Esquire, for example, is among those nominated by the master in Easter term: said Esquire is not among those nominated by said master in Trinity term. Make what addition you please to the number of terms, during which poor Mr. Stiles sees himself not nominated,—what is there in all this to make the master, or anybody else, “lose his place?” Not that, if the place could be lost, it would be any such great person as a master—it would be (as we have seen) some scape-goat or other in the shape of a clerk, that would be sacrificed upon the altar of official prudence.
No:—this is the grand use and exquisite contrivance of corruption in this shape: viz. that, be it ever so corrupt, it is impossible to punish it—aye, or so much as to point suspicion to it. Pleasant conceit indeed! A master lose his place! In any court of common law, from the days of Lord Coke—aye, or of “the English Justinian,” Edward the First—did the great law-officer ever hear of so much as a single case, in which, for mal-practice, in this or any other shape, any such personage as a master ever “lost his place?”—did he ever hear of so much as the rumour of any such case, to form a ground, or so much as a colour, for such confidence?
No: this is not the way that alma mater lex deals with her own children. Ah! fie upon it, darling! Dear child, you must not do so any more! Do what mischief they will, this is the very worst they ever hear from her, if on any such occasion, even in an age, or any number of ages, it ever happens to them to hear anything. Let him look to the statute of Hen. VI., 10 Hen. VI. c. 4, and see 32 Hen. VIII. c. 30, 2 and 3 Ed. VI. c. 32, and 18 El. c. 14. Masters, and their brother officers, with the assistance of feigned plaintiffs of their own feigning, outlawing men by wholesale—taking all this trouble, and to no other purpose than that of seizing their estates, and distributing the produce in the shape of rewards for merit: for learned merit, displayed in these same offices by these same acts. Parliament takes up the matter, and what does it? It passes an act, saying to all these learned persons—“Go and do so no more.”
A master lose his place indeed! What! a place that he had purchased—purchased outright—of a chief judge! What, if such a thing were to happen, would be the worth of any of these masters’ places, not to speak of judges’? Lord Arden, the Earl of Buckinghamshire, the Earl of Hardwicke, Lord Kenyon, Sir William Scott, Mr. Perceval, Lord Erskine, Lord Redesdale, the pair of Honourable Knoxes, the pair of Lord Seymours, Lord Manners, Lord Eldon, and above all Lords, Lord Ellenborough—could it rationally be supposed, that these or any other illustrious persons concerned, whether in the character either of incumbents or of patrons, past, present, or future contingent, in the security of official situations, would suffer, especially if non-feasance were to be taken as a cause of forfeiture, any such injustice to take place? Where then would be their Lordships’ plighted faith—the virtually and virtuously plighted faith: plighted by learned Lordships to fair purchasers?
DOUBLE-FEE ABUSE, PLAIN AND EMBROIDERED.
Ground and Embroidery explained.
The distinction requires explanation; and explanation shall be given to it.
Double-fee abuse plain—(or, as but for the apparent contradiction, it might have been called, simple)—mere waste of public money—nothing worse.
Embroidery to the abuse, corruption of jurors, and contempt of parliament:—in a particular case, the wasted money, the second of two guineas, receiving so particular an application as to operate, in the character of a portion of the matter of corruption, upon a certain class of jurors: and this in defiance of an act of parliament, viz. of a clause (24 Geo. II. c. 18, § 2) made for the express purpose of fixing upon one guinea—and that not as the regular fee, but as the very greatest fee, that, by jurors of that description, shall, in any case, be received.*
From the several crown solicitors, attached to the several boards, double-fees to the law officers: viz. to the officers in the several offices belonging to the several courts of justice which they have to deal with:—judges, in their own persons, included or not included; in the persons of their officers, whose fees they pocket, or derive a profit from in other shapes, included beyond doubt. And here we see the plain and simple abuse.
From the same hands, to each special juryman, where the verdict in which he has concurred has been in favour of the crown, an extra guinea: where it has been in favour of the party, no more than the one guinea: the extra guinea being given in the teeth of the act, which forbids the giving more than one: and here we see, combined in one rich mass of embroidery, the corruption applied to jurors, and the contempt put upon parliament.
Double-fee Abuse, plain:—mere Waste.
But for the embroidery of which it forms the ground, and for the explanation of which the mention of it is necessary, the plain abuse—the mere waste of public money—would scarce be deemed worth a word or a thought anywhere: nor indeed would it be in its place here.
As to our great law-officer, whom we shall presently behold breaking out into a burst of “virtuous indignation, rising even to abhorrence,” he had none to spare for a practice so excusable, or rather so meritorious, as that of applying double-fees in the shape of rewards of merit, to merit personified in the persons of law officers. To these law-officers—officers, the profits of whose offices find their way in so ample a proportion into the pockets of noble and learned tenants for life, whose remaindermen are great law-officers. To this charge we have nothing but his silence; nor need anything more be desired considering the admission it involves.
Thus much, then, is established: viz. that it is become regular practice for the Lords of the Treasury, in every cause instituted by a crown solicitor under their direction, to give out of the taxes to every law-officer twice as much as according to a rate settled by those whose interest it was to raise it as high as possible—twice as much as, even to an estimate thus exaggerated, his services are worth: including, in every instance of an office executed by deputy, the fee of the principal, by whom the reward is pocketed, without the expense of service.
A list of the law-offices and law-officers thus remunerated would, in one way or other, be instructive.
The admission might have been as express as words could make it, for any thing that any body could have had to fear from it.
When a tax has been called a tax, John Bull has now and then been heard to grumble. Call the tax a fee, he is satisfied: so as the contribution be but imposed by the men by whom it is pocketed, pocketed by the men by whom it is imposed, Blackstone’s motto is John Bull’s—“every thing is as it should be.” But, if the imposers are judges, and the persons on whom it is imposed are those children of affliction called suitors—patients with emptiness in their pockets, and perpetual blisters on their mind—then it is that he is not barely contented, he is delighted: he cries “litigation is checked:” some men not being able, others not willing, to see, that in this way, wherever there exists a man, rich as well as wicked enough to purchase the power of oppression thus offered him for sale, it is only the honest and injured litigant, or he who, if the ability were left him, would be litigant, that is thus checked, and that the dishonest litigant is instigated, supported, armed, by this most mischievous of all taxes; every fee exacted from the other side being an instrument of oppression put into his hands.
Embroidery—Corruption of Jurors, Contempt of Parliament.
We now come to the abuse in which the indignation of the great law-officer saw its proper and safe mark: an abuse of former times, supposed to have vanished with the times.
“Further,” says the report, speaking of Mr. Whitbread,—“further he was informed, that when a special jury found a verdict for the crown, it was usual to pay each man two guineas; where their verdict was against the crown, they received but one guinea per man.” Here we see the charge. Come we now to the great law-officer, and his answer:
“Mr. Attorney-general,” says the report, “in reference to Mr. Whitbread’s assertion, respecting the two guineas given to special jurymen in cases of verdict against the crown . . . . [and the usage of discontinuing to summon special jurors who should once give a verdict against the crown] utterly denied the existence of such practices in any of the courts within his memory.”
So far the great law-officer. As to the passage included in brackets, it is thus distinguished, on the presumption that, so far as concerns this practice, the supposition of an utter denial must, for the reasons already given (Chap. I. § 3,) have been a mistake.
“He believes, indeed,” continues the report, “the former practice did sometimes take place, many years since, in the court of Exchequer; but had never occurred for a great number of years, and it was a practice which he abhorred, as disgraceful to the administration of justice.”
And so there was really a time when corruption in this shape was in use? And this corruption applied to the very class of persons—to the very class of jurors—which there has been such abundant occasion here to speak of: the very jurors concerned, “deeply concerned” in “the guinea-trade?” And the corruption had not, as in the case of double fees to law-officers (meaning, we may presume, all the law-officers without distinction, and upon all occasions) the praise of regularity for a cover to it? No:—it was given to them or kept back from them, according as they had behaved—according as they had or had not earned it.
As to the court in which this “abhorred” and “disgraceful practice” was so recently in use, it is the court of Exchequer—that very court, in which, in the opinion of the pre-eminently learned manager himself, things go on (as we have seen) so well—so “well”—that the idea of making them go on “better” is treated by him as something worse than needless. It is the very court in which recruits for this service are received and trained, and their “characters” if not put on record, had in “remembrance” at least, for other services.
And this practice, thus “abhorred” by the Attorney-general as “disgraceful to the administration of justice,” how came it in the court of Exchequer, or in any court calling itself a court of justice, ever, and so recently too, to have place? And supposing it not to have place to-day, is there anything, and what, to prevent its having place again to-morrow? Whatsoever the causes may be, is there any thing unreasonable in the supposition, that the same causes may at any time be productive of the same effects? Not that any such renewal presents itself as a very probable occurrence: for the grand object, viz. dependence—complete and absolute dependence—being by this time so effectually secured, as it appears to have been, and in so snug and quiet a way, corruption in any such barefaced shape would be altogether needless; and the danger of and from exposure, remote as it would however be, is more than, by learned prudence, would, when unsweetened by any ulterior advantage, be incurred.
Thus much for the corruption. But in the corruption, bad as it is, we do not by any means see the worst part of the business.
The worst part of the business is the contempt—the open contempt put upon parliament: disobedience, such as it is impossible should not have been wilful, manifested as towards one of its recent laws. Here we see the axe laid to the very root of government: and by what hands? Not by jacobins and levellers—not by men who meet at taverns, and get up upon tables; but by the very husbandmen themselves—the very nursery-men, by whom Mr. Reeves’s tree—(the tree that was so near falling upon his head, and without falling on it prepared it for so many good plaisters)—the very nursery-men by whom that nutritious and umbrageous sugar-tree ought to have been nursed, and who are so well paid for nursing it.
But of this most serious state offence—this dissolution-threatening offence—in comparison of which so ordinary and regular an offence as corruption shews, in the eye of a really loyal subject, but as a peccadillo, more will be said in another place. (See Part IV. Chap. III.) Be it meantime remembered, that the fact is established.
Other facts, not altogether devoid of importance, remain to be affirmed or disaffirmed by inquiry and evidence.
By what hand was it that the bribery guinea—the additional and prohibited guinea—was put into the ready hand of the Exchequer guinea-men, in despite of the statute? This is a question, the answer to which, but for form’s sake, needs no evidence. That of the solicitor, of the board whichever it was, under the orders of which the prosecution was, in each instance, ordered.
Two other questions:—The master packer, and the master packer’s master—the deputy remembrancer, and the Lord Chief Baron—were they respectively apprized of it?
At what time was it that this “abhorred” practice did sometimes take place—how many were these “many years since” it was known to do so?
In whose chief baronship was it? In that of Eyre—in that of Skinner—in that of Smyth?—or in any part of the thirty years presidency of the old attorney, knighted and made honest—as honest as to an English judge it is possible to be—by the title of Sir Thomas Parker? Or was it at any time under the presidency of the present Lord Chief Baron, of whose services in that high station the country has had the benefit now for above these sixteen years:* if yes, whether it has been with his privity that any particular individual instance of this practice has taken place, and whether this has been among the means employed by him for the attainment of the object so effectually accomplished, and so solicitously defended?†
These are among the “secrets” which may perhaps present themselves as “worth knowing,” whensoever Mr. Whitbread, refreshed by a summer recess, shall feel himself sufficiently refreshed to return to the charge; to return to the charge, and by one pull more—one pull, sufficient in length as well as strength, drag them completely and effectually out of the den of Cacus.
Should it ever happen to the great law-officer, on any future occasion to get up, and come out with a speech of a mixed nature such as the above, composed of part argument, and part evidence, Mr. Whitbread, or whosoever on any such occasion may occupy his place, will perceive, I am inclined to think, the use and propriety of decomposing such speech, and resolving it into those its component elements. As to the argument, it need not give him much trouble: that may be left to answer itself. But the evidence is quite another thing: here he will see the use and necessity of that useful operation called cross-examination. I don’t mean, that even upon the great law-officer himself, it should be performed in his own mode: of that it would surely be better to leave the monopoly in his own hands. I don’t mean, that he should be called “the greatest fool that ever walked over earth” with or “without a keeper.”‡ I don’t mean, that he should be examined for no other purpose than to expose to contempt the witness, nor with any other effect than to expose to the same fate the examiner and the judge: the examiner who makes such examinations, and the judge who suffers them. What I mean is, that he should be examined—cross-examined—in whatever mode may happen to be best adapted to the getting out the truth:—which surely will be a very different mode.
HUMBLE PROPOSAL FOR RESTORING THE CONSTITUTION IN REGARD TO JURIES.
Introduction—Necessity of a Change in the System.
In the course of this inquiry, two dangerous diseases have necessarily and continually been brought to view:—1. A rottenness in one of the most important organs of the body politic, viz. jury-trial; 2. A sort of weakness about the head, having for its symptoms, on the part of judges and other subordinate members of government, a confirmed, habitual, and scarcely disguised contempt, as towards the authority of the legislature.
The existence of the disease having, in both instances, been brought to view, next comes the more immediately beneficial task, but for which that unpleasant one would never have been undertaken, viz. the indication of the proper remedy.
In this chapter will be proposed, what presents itself as proper to be done, in regard to juries.
That within the sheriffwick of the sheriffs of London and Middlesex, the institution of special juries, composed as at present, ought to be abolished—is supposed to have already been sufficiently demonstrated. If so, the consequence is—that within this district some different system will require to be set on foot. But, forasmuch as the establishing in one particular district, though it be the district of the metropolis, a system different from what is in use in the greater part of the kingdom, might, by infusing additional complication into a system of judicature already so overloaded with complication, be productive of preponderate inconvenience; hence we are led to the consideration of some plan which, being grounded on principles universally applicable, may itself be susceptible of an application equally universal, without preponderant inconvenience.
The remedy here ventured to be proposed is styled without scruple a restorative: a plan for the restoring, for the purpose of jury-trial, the original composition of juries. Not that the plan is such in exact tenor and detail: for, if it were, it could not be such in principle and effect.*
All political institutions would be exposed to deterioration, were it even by the mere change of circumstances: and if, where the change of circumstances is become material and extensive, the original constitution is left unchanged in detail, the consequence is—that, howsoever in words and outward show it may be the same, it is become in substance and effect, in a proportionable degree, different. Nor yet would I have it thought, that in my vocabulary old is synonymous to good, or better, as in some vocabularies we have seen it, synonymous to not so good or bad. Be the state of things ever so good, to render them still better is, in my view of the matter, a good operation, not a bad one: the contrary opinion I leave to those in whose eyes the praise of letting off an old epigram is better worth than the consciousness of having rendered, or the endeavour to render, a public service.
Accordingly, in the endeavour to bring about a restoration of the jury system in principle, I have not in detail neglected the opportunity of endeavouring to put it, for the future, into a state as much superior as possible to any state it ever was in before.
As to the existing special jury system, my real quarrel with it is—not that it is a different one from the original jury system, but that, in comparison with it, it is a bad one.
Interests to be provided for—Objects to be aimed at.
For remedy to the disorders in question, before we enter upon the task of suggesting particular arrangements, it may be of use to have before us a distinct intimation of the several interests requiring to be provided for, and, for the purpose of such provision, of the several objects or ends requisite to be kept in view and aimed at—viz. in the framing of a plan for the composition of jurors, the selection of the jurors, and the compensation, if any, to be made to them for their labour, loss of time, and expense.
The interests concerned are, in the first place, those of the suitors or parties on both sides of the cause; in the next place, those of the jurors themselves.
It is for the sake of the interests of the parties in each cause,—or rather of such party or parties as are in the right, viz. in so far as he or they are in the right,—that it becomes an object with the legislator, to make such provision as the nature of the case admits of, for securing, on the part of jurors, such degree of relative aptitude, in all points, intellectual as well as moral, as shall render the general tenor of their decisions as conformable as possible to the ends of justice.
Follows a brief intimation of these objects, ranged under three general heads:—
I. Objects referable to the head of probity or moral aptitude.
1. Preserving jurors as effectually as possible from exposure to the action of such sinister influence as is liable to be exercised by, or to emane from persons in power; and more particularly by or from the presiding and directing judge or judges, as above.
2. Preserving them, as above, from such sinister influence, in the shape of intimidation, corruption, or partiality, as is liable to be exercised by, or to emane from individuals or classes of men, in the character whether of parties or of persons having in any other way an interest in the event of each respective cause.
II. Objects referable to the head of intellectual aptitude.
3. In a judicatory so composed, providing, upon occasion, a degree of extra-aptitude, in respect of intellectual qualifications; viz. in consideration of, and in proportion to, any degree of extra-difficulty attached to this or that particular cause.
4.—or in consideration of, and in proportion to, any degree of extra-importance.
III. Objects having respect to the interests of the jurors themselves.
5. Reducing to its minimum the quantity of vexation and expense attached to judicial service in this line.
6. Providing compensation for such portion of vexation and expense as cannot be avoided without preponderant inconvenience: viz. without preponderant prejudice to the main object above mentioned.
Arrangements proposed:—1. In Common Jury Causes, mix Gentlemen with Yeomen.
Here follows a slight sketch of the arrangements that present themselves, as promising to be conducive to the attainment of the above objects: in case of conflict, regard being had all along to their respective degrees of importance, absolute and comparative:—
1. The distinction between common and special jurymen to be still preserved. The object aimed at by this arrangement is—provision for intellectual aptitude.
2. In ordinary or common jury cases—i. e. in those cases in which at present the jurors are all of them of the class of common jurymen (say, for distinction, yeomen jurymen)—let some one or two of the class of special jurymen (say, for distinction, gentlemen jurymen) be regularly inserted into each jury.—Object, intellectual aptitude—viz. under the expectation, that, for the benefit of justice, the influence of understanding upon understanding will exercise itself, of course, upon the less-informed class, by the instrumentality of the better-informed.
3. Number of gentlemen jurors, not more than one or two. The interest provided for by this restriction is that of jurors.—Object, avoidance of unnecessary vexation and expense: viz. of vexation and expense, by reason of attendance; viz. on the part of an overproportion of jurors of this class.
4. The district in which the gentlemen jurors are taken, let it be a district as remote as on other accounts will be consistent with convenience, from the district in which the yeomen jurymen are taken.—Object, providing for moral aptitude on the part of yeomen jurors, viz. by preserving them from being subjected to sinister influence—viz. to influence of will over will—whether in the shape of intimidation, or in the shape of corruption—emanating from gentlemen jurors. At the hands of the gentlemen juros—of the men of superior education—the salutary species of influence—viz. the influence of understanding over understanding—of opinion on opinion—is looked for and desired. The use of the distance proposed, is—to serve as a bar to the exercise of will over will. To men of the yeomen class—to shopkeepers, handicrafts, &c. living in the same neighbourhood with the gentleman, it might frequently happen to view in his supposed disposition towards them a source of hope or fear. By distance, this source of corruption would be cut off.*
Arrangements continued—2. Special Juries, half-and-half.
Power to any party, on either side, to cause to be substituted to the common jury composed as above, a half-and-half jury;†viz. a jury—not composed of all gentlemen, as in the case of the special jury constituted as at present—but containing any number of gentlemen not exceeding half: viz. out of twelve, six.
The interest thus endeavoured to be served is, of course, that of the suitors: the objects endeavoured to be secured, are, in the first place, by the enlargement of the number of the gentlemen jurors, intellectual aptitude: viz. by adding to the chance of finding a juryman qualified in an extra degree for taking the lead, and guiding the decision: in the next place, by the restriction put upon the number of the jurymen of that class, moral aptitude: viz. by preventing the preponderance of partiality as between rank and rank.
Of the sort of mixture here proposed, the importance is such as seems to claim a particular degree of development. In every species of judicatory without exception, but in a more pre-eminent degree in every judicatory of which a jury forms a part, of all imaginable causes of misdecision, what is commonly understood by the term partiality is that which the legislator finds greatest difficulty in coping with. Wheresoever the nature of the influence—the sinister influence—supposes two parties—one acting, the other acted on—his task is comparatively an easy one. All that in that case he has to do, is—to keep them from coming together: and, with a moderate degree of probity, exertion, and intelligence, how easy that is, may have been seen already.
But the case of partiality supposes not any such parties: it supposes not any tempter from without. The tempter dwells within—within the very bosom of this occasional judge; and, being there, in vain would legislators dislodge him: he bids defiance to their utmost efforts.
Religion or politics—it, by the nature of the case, any such cause of dissension happens to be called forth—called forth in such manner as to excite, in the bosoms of any of the jurors, sentiments—whether of sympathy or antipathy—in relation to the parties on each or either side—against this source of partial affection—of corrupt affection (as, even though there be no corruptor, it may be styled)—against this source of misdecision, all that in the station of the legislator can be done by human wisdom is here without avail: in this shape, corruption may have established in a man’s bosom ever so complete an empire—there it must reign, and reign uncontrouled: you can never punish it, for you can never prove it.
Among jurymen, a possible, and not unnatural, source of partiality, on either or both sides of a cause, and thence of dissension, is that of which difference of rank and station in life is the instrument.
With partiality and dissension in this shape, the proposed half-and-half jury, as well as any other jury, stands exposed to be infected: and indeed, by the nature of its constitution and composition, may appear, and not altogether without reason, to be exposed to that accident in a particular degree. But while it contains in itself the seeds of the disease, it furnishes at the same time a remedy;—a remedy—such an one as cannot in any other mode be supplied.
Take, for example, a case, such as, in the country at least, where there is no guinea-corps, is frequently exemplified—a special jury, with a deficiency in it made up by yeomen: by common jurymen, in the character of talesmen. Suppose, as between a gentleman and a yeoman, a cause so circumstanced as to awake, in the bosoms of these different parts of the population of the jury-box—to awaken, and to excite, to a degree of excitation fatal to justice, the passions and partialities congenial to their respective stations. In this case, let there be seven gentlemen to five yeomen the gentleman carries it. But—suppose six and six, as under the proposed constitution will constantly be the case—in this case, partiality may reign without opposition in eleven bosoms, so as one of the twelve, even though it be but one, be the seat of cool and impartial justice: he who has right on his side, be he gentleman or yeoman, gains the cause.
Of the proposed provision, by which the number of gentlemen jurymen even on a special jury is limited to half the whole number, viz. to six out of the twelve, the expected use is as follows:—In ordinary cases, for the purpose of guidance, by means of intellectual aptitude, one or at most two, was, as above, (§ 3) regarded as sufficient. For this same purpose, the additional chance, afforded by the substitution of six to two or one, may, it is supposed, be regarded as amply sufficient, even in any the most extraordinary cases.
As to the case of a contention between opposite classical partialities, a case of this sort, it is hoped and supposed, will, comparatively speaking, be a rare one. But, that it should now and then find itself exemplified, is no more than what ought to be expected, and provided against accordingly.
Here, then, comes in an occasion, for applying to this case that beautiful feature of jury-trial, which, by the use thus proposed to be made of it, can scarcely fail to have been already presented to the reader’s notice: that no less politic than generous arrangement, contrived by the genius of some now forgotten statesman, for the protection of foreigners against those adverse interests and antipathies, which are so unhappily apt to have place in the bosoms of natives.
A mind in which virtue in both her forms moral and intellectual, shines thus bright can hardly have been that of a lawyer. In matters of foreign politics—of political economy—in every branch of knowledge not immediately conducive to the advancement of their own personal or professional interests, the breasts of lawyers, especially in the “highest situations,” are, even in these comparatively enlightened times, among the most noted tabernacles of ignorance: of ignorance and of that error which, when accompanied with the degree of presumption so natural to such situations, is so much worse and more mischievous than simple ignorance.
When, for the benefit of foreigners, the half-and-half jury was introduced, it was not confined to the cases called civil cases: nor among cases called criminal, to those of inferior importance: it covered the whole field of jury-trial.
As to special-jury trial, slid in by lawyers for the advancement of their own interests, and accordingly as it were by stealth, introduced by them, as we have seen, in pursuit of those two grand sinister objects, increase of power and profit to themselves, they neither dared nor cared to give it any such all-comprehensive range.
But, if needful for causes of property, and in the case of offences comparatively trivial, how much more needful must it not be in causes which, to the individuals at least whose station is on the defendant’s side, are of the very highest importance—causes of life and death?
A principle which, in expectation of the superiority of intelligence expected from superiority of rank, gives up the reins without controul, to every prejudice and every partiality, with which it can happen to that intellectual superiority to be accompanied, is rotten at the core.
Argument against and for a half-and-half jury as a substitute to the existing special jury.—Dialogue between a Gentleman and a Yeoman.
Gentleman.—We are in possession of having a jury of our own sort at pleasure: that possession we claim to have preserved to us.
Yeoman.—More shame for you. On no principle, either of natural justice, or of the English constitution, can you defend this so recently usurped advantage.
As to us, so moderate is our claim, that, with that equality of numbers, which is all we ask for, the advantage, in any contest between you and us, would still be most decidedly on your side.
On your side is the superiority of intellectual force in all its shapes:—knowledge, address, habit of taking the lead.
On your side is the whole force of that influence which exerts itself on the understanding. On your side is every element of what is called respectability: education, opulence, power, rank, connexion. On no other occasion does this your superiority ever find you backward in the assertion of it: asserting it on every other occasion, and to every other purpose—on this occasion alone, to this purpose alone, you will not surely take upon you to deny it.
On your side is the whole force of that still more irresistible influence, which by will is exerted over will. To your class, our’s looks up—looks up with hope—for employment, custom, protection, everything: your’s to our’s, for nothing. From your class, our’s has everything to fear; your’s from our’s, nothing. Without any the slightest ground, or so much as a pretence, a man of your class has but to bring an action against one of our’s—or if an action be not oppressive enough, to file a bill against him—his ruin follows of course. This is what we are indebted for, both of us, to your good friends, the lawyers. I say yours: for your’s they are as against us; and your’s they would be, if they were any body’s.
But, to come to the point at once. Can you seriously think, and seriously take upon you to say, that, in case of difference, six of us can, in general, have as good a chance of persuading six of you, as six of you of persuading six of us?
What we not merely consent to, but propose and desire, is—that in ordinary cases—in all cases but those in which this proposed equality of numbers happens to be insisted on, there should be some two or one at least of you, for our guidance:—so far is this claim on our part from having for its principle any sentiment of hostility towards you—any sentiment inconsistent with cordiality, respect, and deference. As to confidence, unbounded confidence, it is more than human nature can ever, in the instance of any individual, much more in any large class of individuals, lay claim to, with any colour of reason or justice: and with political liberty, in any shape or degree whatsoever, it is utterly incompatible.
Arrangements continued—3. Compensation-money to Jurymen.
1. In the allowance to jurymen, distinguish two parts: one for demurrage, viz. at the place of trial; the other for journeys, viz. thither and back: demurrage-money the same to all: journey-money proportioned to the distance between the place of trial, and each juryman’s place of residence, and rated at so much a mile.
2. To save calculation, and prevent disputes, after taking, in each parish, a particular spot—say the site of the parish church—for the mark, let the distances of the several parisbes from the place of trial be previously ascertained, once for all, and, in the form of a table, written or printed, kept hung up in the court; and also in the office, in which payment is made to the jurymen.
3. For demurrage, let the allowance to each juryman be so much a-day for the whole time of his necessary stay: and without regard to the number of causes in which it may have happened to him to serve: the amount being pre-appointed, viz. by a general regulation, having for its object the fixing it at whatever sum is regarded as being at that time and place necessary and sufficient for the maintenance of a juryman of the yeomen class: which fixation may consequently, in respect of the change in the value of money, require amendment from time to time.*
4. Let the allowance be neither more nor less to gentlemen than to yeomen jurymen.
For, if to the gentleman the expense of attendance will naturally be greater than to the yeoman, it is because in general the gentleman, in respect of his superior opulence, is better able to afford it.
True it is, that the rank of the gentleman is not exempt from indigence: understand, casual and relative indigence. But neither is that of the yeoman: and surely it is in the worst-provided class that the degree of indigence, and consequent suffering, is capable of being most acute.*
Arrangements continued—4. Fund, on which the Compensation-money shall be charged.
1. As well in ordinary or common jury causes, (viz. where, by the supposition, no more than one or two gentlemen are upon the jury,) as in extraordinary or special-jury causes, where (also by the supposition) as many gentlemen as yeomen are upon the jury, let the expense of the above proposed compensation-money (say jury-money) be borne—not by the suitor on either side, but by the public at large:—viz. by being added to the county-rates:—unless, for this particular purpose alone, it were worth while to look out for a mode of assessment more equable.
The interest here provided for is that of the suitors: viz. on that side of the cause on which, whether in the right or the wrong, this part of the costs of suit would otherwise be imposed.†
2. In a special-jury cause, i. e. where, at the requisition of a party on either side, a half-and-half jury has been ordered, to prevent a disproportionate quantity of vexation in this shape from falling on the gentlemen’s class, let an extra sum of money, at the rate of so much a-head for the extra number of jurors allowed (viz. four or five) be charged in the way of costs, on the party by whom the requisition was made: payable, however—not to the gentlemen jurymen, but to the county or other public fund, on which, as above, the ordinary expense of jury-money is proposed to be charged.
Interest provided for—that of jurymen: viz. gentlemen jurymen;—object aimed at—prevention of vexation—viz. of vexation which, in the shape of jury-service, might otherwise fall in an undue proportion on that class.
3. Immediately after the trial, upon the bringing in of the verdict, let the judge, instead of leaving the expense of the extra jury-money to lie, as above, upon the party by whom the half-and-half jury was required, have power either to impose it on any other party, or simply to take it off: in which latter case, the contribution destined, as above, for the public fund, will for this time not be received.
4. In the event of his exercising, in either way, the above proposed power, it ought to be under the notion, and naturally will be, that the cause is of the number of those which, on some special ground or other, will warrant the imposing on the gentlemen’s class this addition to the quantity of vexation imposed upon them in this shape. This special ground will, as above, be either—1. Extra difficulty, 2. Extra importance, or 3. Demand for equality of numbers on the score of apprehended partialities—say more briefly, apprehended partialities. In the terms of his order, let the judge specify on which of these several grounds it has been founded.
5. For a further check upon the practice of making wanton demands on the time of the gentlemen’s class, lest the simple charge of the extra jury-money (which at the present established rate will amount to no more than either four or five guineas) should not be sufficient, let the judge have moreover power to increase it at his discretion, up to a limited amount: suppose, for example, treble the amount of the simple charge.
6. The form of the judge’s order may, in any of the above cases, be extremely simple:—as for example—1. “This cause being by me deemed proper for the cognizance of a special jury, viz. on the score of” [then proceed to say extra difficulty, extra importance, or apprehended partialities, any one or any two, or all three, as the case may be] “let no extra jury-money be paid—or let extra jury-money be paid—not by—being the party by whom the requisition of the special jury was made, but by—” [mentioning some other party or parties.] 2. “The requisition made of a special jury in this cause by—” [here mention the name of the party, and his station in the cause] “being by me deemed groundless and wantonly made, instead of—being the simple amount of the extra jury-money, payable to and in exoneration of the county fund, let the sum paid by him be—” [here mention the sum.]
7. Let fines for non-attendance be paid to and in exoneration of the fund on which the expense of jury-money is imposed.
For further explanation and justification of the above proposed arrangements, a few more words may perhaps not be ill bestowed.
As in the case of the yeomen’s class, so in the case of the gentlemen’s class, justice requires that, as in any other shape, so in the shape in question, a disproportionate quantity of vexation shall not be imposed: thence the ground for the preventive measures above proposed.
But, rather than any extra pecuniary allowance, in the name of compensation-money, should be given to individuals of the gentlemen’s class, in contradistinction to, and at the expense of, those of the yeomen’s class, better the money were thrown into the sea. By any such extra allowance, a pernicious principle—a principle of sordid and oppressive partiality—would be perpetuated: and public service in this shape would, instead of being a burthen indeed, but an honourable and useful, nor that a heavy burthen—imposed on all alike, would as at present be an object of rapacity and intrigue, sought for and obtained by such as are least deserving of it.
If, upon this plan, vexation, in the shape in question, should, in a proportion a little greater (and it could be but a little greater,) fall on the gentlemen’s class than on the yeomen’s, the overplus would, it is supposed, find for its justification the following grounds, none of which could have any application in the opposite case:—
1. In the character of suitors, to the lot of the gentlemen’s class fall, in by far the larger proportion, as well causes that are attended with extra difficulty, as those which are attended with extra importance.
2. When, on the only remaining ground, viz. the ground of apprehended partialities, a special jury is allowed (i. e. a jury containing an extra proportion of gentlemen,) it is principally, if not solely, for the protection of the interests of this class, in case of any conflict which it may have with the interests, passions, or prejudices of the other. Receiving this extra benefit, they ought not to grudge a small portion of extra burthen.
3. Between the gentlemen’s class and the yeomen’s, the characteristic difference is—that, of the gentleman’s time, a portion may be applied to this public purpose—to the purpose of judicature, without imposing upon him a loss of a pecuniary nature: whereas, in the case of the yeoman, a tax upon his time is, besides the tax upon his time, a tax upon his purse.
4. Service in this line being a source of useful information, and, like a scholastic exercise, a source of intellectual power, whether it be or be not pleasant to the particular individual, it is for the advantage of the public at large that each man should have his share of it: and if this be true, even in the instance of the yeomen’s class, whose share in other branches of government is comparatively so small, it must be so in a more eminent degree in the instance of the gentlemen’s class, whose share in other branches of government is comparatively so large.
By service, in the department of justice in the character of juryman, a man is, in some measure, trained and fitted for service in the field of government at large, in the character of parliamentary elector.
5. It may be of use that it should be distinctly seen on what ground stands the demand for an extra number of gentlemen jurymen on the score of extra difficulty or extra importance—in a word, on any other ground than that of apprehended partialities to the prejudice of that same class. For the purpose of guidance, if by no other than the only useful and proper sort of influence, viz. influence of understanding over understanding, one man of superior intellectual aptitude is as sufficient as any greater number could be: to this purpose, therefore, the only advantage gained by any addition to the number of gentlemen in the jury, is the additional chance it affords of obtaining the requisite degree of aptitude in this shape, in the person of some one.
In regard to the fines for non-attendance, the present system being inefficient, and almost completely nugatory, to give effect to them, and reconcile at the same time to each other the antagonizing ends of justice, would require some new arrangements, which, if intentions were but honest, might easily enough be carried into effect. On this head, a few general hints are as much as room can be found for in this place:—
1. The interest that individuals at large have in the general fund—say the county fund—not affording to any one of them a motive adequate to the purpose of engaging him to watch over its interest in this behalf with effect, a special interest must be given to some one person—for example, the person by whom the monies of this fund are received: a special interest, viz. in the form of a per centage upon the amount.
2. Into the pocket of this one person, the money ought to be made to find its way as it were of course: viz. without need of a lawsuit to be instituted by him, much less by any one else, for that purpose.
3. On non-appearance of any person summoned to appear for the purpose of jury service, let the money be, by a certain day thereafter, levied on him of course: unless at the day, appointed for appearance, in lieu of the person himself, there appear, under his signature, a paper exhibiting some one or more of a list of legitimate excuses, to be allowed and mentioned as such in the form of the summons: the facts of such excuses to be established by an affidavit, with or without co-attestators, as the case may be, according to printed forms, pre-appointed for the purpose, free of stamp-duty, and every other avoidable expense.
Were the arrangements left to him, a member of the firm of Judge and Co. would settle them on this occasion as he does on others. From this burthen as from others, application made for relief in the case where, by accident, as above, the burthen has been rendered undue, would be more burthensome than the burthen itself: of an application thus made, the burthen would be certain, success precarious. Defaulters without excuse would remain unpunished: defaulters with good excuse—defaulters from necessity—would be oppressed. To each useful purpose the system would be inefficient: suffering to particular individuals, with pickings to Judge and Co. out of the same, would be the only fruit of it.
At the same time the whole business would be conducted with the most unimpeachable regularity. Precedent would have been pursued in everything that was done: and thus, as usual, all complaining mouths would be shut: unlearned mouths shut, learned shoulders saved harmless—saved from every particle of burthen, as in all other shapes, so in the shape of blame.
Arrangements continued—5. Formation of the Qualified List—viz. in other counties, &c. as well as Middlesex.
The basis of the jury system being the qualified list, the plan here brought to view might appear chargeable with oversight or negligence, if a topic so material were altogether passed by in silence. But the relevant facts being in so high a degree diversified, and for the most part so inextricably buried in obscurity, the nature of the case precludes every such attempt as that of proposing, in relation to this part of the subject, particularly in such a place as the present, anything like a detailed, determinate, and in a geographical sense all-comprehensive, system of arrangements.
By change, be it what it may—by innovation, on this as on every other part of the field of law—inconvenience, in some shape or other, in some degree or other, is sure to be produced. Unless, therefore, and until, inconvenience in some specific shape can be pointed out as resulting, or about to result, from the arrangements actually in use, this general consideration, loose as it is, will, in each division of the country, as well as at every period of time, operate, as a sufficient bar against any change that can be proposed. But no sooner is any such specific inconvenience pointed out, than the bar is provisionally removed: and then comes the operation of making a comparative estimate of the amount of inconvenience on both sides, in such sort, that when placed by the mind in two opposite scales as in a balance, a just conclusion may be formed, determining on which side the preponderance has place.
But, in different territorial divisions, counties and privileged boroughs taken together, circumstances are, in this respect, so extremely different, that, independently of those changes, which, in some or all of them, are liable to be brought about by time, it can scarcely happen but that, if the same course be, in all of them, pursued without variation, inconvenience, and to no inconsiderable amount, would, upon inquiry, be found, in some instances, to have place.
Hence it is that, upon a general view of the subject, and antecedently to such particular inquiry as no power other than that of parliament is competent to make with effect, a general inquiry, of the nature above intimated, cannot with propriety be considered as superfluous.
For any such inquiry, the present, however, is not the proper place. The alarming political grievance, the utter destruction impending over the palladium of the English constitution, the liberty of the press—this was the consideration, but for which the present inquiry would never have been engaged in. Of this mischief the county of Middlesex has, by the causes already spoken of, been rendered almost the sole theatre. To the exclusion of these mischiefs, so far as depends upon the composition of the qualified list, an assemblage formed upon the principles upon which the composition of that list has hitherto been grounded, may, for anything that hath as yet presented itself to my view, be sufficient: I mean, of course, with the help of such ulterior arrangements as may be conformable to the principles herein already brought to view.
On what persons ought the obligation of serving on juries to be imposed? Answer—On every human being, but for some apt and special cause, either of exclusion or exemption. It is therefore by the indication of such causes, with the reasons on which their aptitude in that character respectively depends, that the proper abstract answer to that question will, in its several ramifications, be furnished. So far as concerns exclusion, these causes would be found to bear a considerable analogy to the causes of exclusion applicable to the function of parliamentary elector. In some instances, a cause that applies to the one function would be found exactly applicable to the other;—while in other instances, such coincidence will be seen not to have place. But in the instance of every circumstance that, in the character of a cause of exclusion, can be proposed with reference to either function, whether it be deemed applicable to both functions or to one only, and whichsoever be that one, considerable light would be seen to be thrown on the subject by the comparison thus proposed.
Thus much may be said of both cases: viz. that, consideration had of the great change in the value of money, as well as in other influencing circumstances in abundance, if the existing arrangements were proper at the times at which they were respectively made, it is impossible that, taken altogether, they should be equally so at present.
At the same time, from the mere existence of that comparative degree of impropriety, it follows not, that the advantages capable of being gained by the removal of the impropriety, would be an over-balance for the inconvenience that ought to be apprehended from a change.
A state of things by no means incapable of being realized, and which ought therefore to be kept in view, is—that the arrangements, having been in a less degree proper at the time when they were made, have by change of circumstances been rendered more proper than at first:—that, for example, the pecuniary part of the qualification, having originally been set at too high a rate, has, by the depreciation of money, been rendered more proper in the present less immature state of society, than it was in the more immature state of things which gave birth to it.
For any attempt to penetrate any further into the subject, it would be time enough if, for any practical purpose, the observations herein already submitted to the public should be found to have a claim to notice. Taking the county of Middlesex, in the first place, for the local field, it would then be time enough to extend the inquiry to the formation of the several original qualified lists for the several species of juries, relation being likewise had to the several species of judicatories in which they have to serve.
It would then also be time enough to extend and apply the whole of the inquiry to the several other counties, and judicial districts included in counties.
Should any such inquiry come to be instituted, the facts, collected and brought to light in relation to the county of Middlesex by the public spirit, the activity, and intelligence of Sir Richard Phillips (see his above-mentioned work throughout) will be found highly serviceable: for out of them may be formed a basis for inquiry, applicable to the several other cases just alluded to. As to all these matters, for the present at least, I can therefore do neither more nor better than to refer the reader to that eminently valuable and meritorious publication.*
Arrangements continued—6. Corruption by Individuals how prevented—No Party should foreknow his Jurymen.
As well in special-jury causes, viz. with a half-and-half jury, as in common-jury causes, with one or two gentlemen jurymen, let matters be so ordered, that, to the parties on each side, it shall, to the latest moment, be imposible to know who the persons are that will serve as jurymen in the cause.
The interest thus provided for is that of the suitors, viz. in each cause that of him who is in the right: the object aimed at is—on the part of jurymen, moral aptitude: viz. in respect of exemption from such corruptive influence—such influence of will over will—as it may lie in the way of individuals in the character of suitors, to exercise on the decision of those their occasional judges.
On this occasion, before we come to speak of the means conducive to this end, observation will require to be taken of a sort of conflict which has place between interest and interest, and thence between object and object: between the interest of suitors (viz. such as are on the right side as above,) and the interest of jurymen. If that of jurymen were the interest that possessed the sole or the predominant claim to regard, rotation and that alone would be the principle employed: for, as will be seen, in so far as that principle is departed from, in so far, on the part of jurymen, vexation—the aggregate mass of vexation, produced by the obligation of serving in that character, must, viz. in respect of the number of them subjected to it, be increased.
But in that case, of the jurors who will have to serve in a given cause, if no supernumeraries are summoned, the whole number, or if, to make allowance for accidents, supernumeraries are summoned (but in no greater number than is necessary to make sufficient allowance for such accidents,) a large proportion of that number might come to be foreknown to the suitors in that same cause. Here, then, is a door open to corruption—to corruption in that shape—or at least in one of those shapes—in which the existence of it—the notorious and declared existence of it—gave birth to the first of the whole string of those statutes relative to juries, in which any mention is made of special juries.
If the principle of rotation be taken for the basis, two other principles ought therefore to be mixed with it: mixed with it, in the character of correctives and preservatives: correctives, viz. to the tendency of that principle, when employed crude and single; preservatives, viz. against the danger of such sinister influence. The one is—the principle of disconnexion as above explained; disconnexion as between gentlemen jurymen and yeomen jurymen, by means of local distance. The other is—the principle of chance: viz. as applied to the determination of the individuals that shall serve together on the occasion of each several cause.
But, when applied on the occasion in question to the purpose in question, the principle of chance requires an increase of number—of the number of persons subjected to this vexation: it requires, for the purpose of each several cause, the attendance of a number greater than the number of those who will have to serve on the occasion of that same cause: for, if twelve (the number of those that serve on each cause) were all that, under and in virtue of the summonses delivered to them by the sheriff, were capable of serving in that cause, the consequence is, that of each man, in so far as it were certain that he would attend, it would be certain that he would serve: and in this certainty there would be no room for chance. True it is, that of his attendance, even in that case, there could be no absolute certainty: for, besides the accidents, such as death and sickness, to which all mankind are subject, and over which the will of man has no controul, if, relation being made to the state of the law on one hand, and the state of his own affairs and inclinations on the other, it were to this or that man more agreeable to stay away in despite of the law, than attend in obedience to the law, he would do—as jurymen, or at least as gentlemen jurymen, are at present suffered to do by gentlemen judges—he would stay away accordingly. But, though, to any good purpose, certainty would not in that case be attainable, yet to a bad purpose, viz. to the purpose of corruption, in the way in question, a probability but too little short of certainty would be attainable: for the corrupter, foreknowing—knowing as soon as the list of the persons summoned, or about to be summoned, for service in the cause in question, were known to him—the corrupter, knowing of twelve persons, in the power of every one of whom it would be, bating accidents, to serve, would at the same time know of so many persons, of the attendance of any one or more of whom he would, in the event of his succeeding in his plan of corruption in their instance, be sufficiently assured.
In the case of common juries, the statute so often spoken of (3 Geo. II. c. 25) has, in § 8, with or without intending it, afforded for this salutary application of the principle of chance a sufficient basis: 72 being the greatest number, 48 the least number, which (regard being apparently had to the difference between county and county in respect to local extent) it allows to be summoned to appear on each occasion—for example, at each assize—for the trial of whatever number of causes may happen to be ready for trial at that assize. But not only of this least allowed number, 48, but of a considerably less number, it is evident, that, with the help of the principle of chance, it might be made use of in such manner as to render corruption—previous intercourse, and thence corruption—on the part of individuals, practically speaking, impossible. For the first cause that comes on for trial, immediately before the trial, let the names of all such as are present be put into a dark box, shaken together, and so drawn out. If of these twelve it were determined, that after this first cause they required respite (though for the judge who has the guidance of them there is no respite,) these might on the second cause be all of them set aside, and for that second cause the lottery be confined to the remainder: and, the first twelve being after their respite replaced in the lottery, so on through any number of causes.
But if, in the instance of any one cause it be in the power of any one person of himself to determine, or by any other means to know of, a set of persons, in the power of each or even any one of whom it shall be in the character of juryman to serve, in the power of that one person it is, whether by neglect or by design, to introduce an intended corrupter to so many persons in whose power it will be, if corrupted, to secure to him the verdict he desires: and, the greater the number of the persons to whom it happens to be in possession of this knowledge, the greater the number of such possible introductors, and by that means the greater the probability that such corruption will take place.
Let, for instance, the rule be such, that it it is by a certain person—for example, the sheriff (that is to say, the attorney by whom, in the character of under-sheriff, the business is done)—that it is by this person that the list of the persons, who are to be summoned to serve as jurors on the occasion in question—for example on the assize in question—is to be determined;—that at the assize in question, the number of these is to be 48;—and that in the first cause that stands on the roll, the 12 first of those that appear are to serve. In this state of things, it is evident, that if to this attorney it should happen to find his convenience, either in corrupting the requisite number of jurymen himself, (which might be attended with some danger) or in letting in another corrupter upon them (which might be done without any danger,) the regular practice will find itself altogether well adapted to the purpose.
In this state of things, thus for illustration sake supposed, we see, in aid of the practice of corruption, two auxiliary principles—viz. choice and foreknowledge, confederated. But even without the aid of choice, foreknowledge may very well be sufficient for the purpose. Suppose it settled, that in the gross or total qualified list, the names shall be entered in the order of the alphabet: moreover, supposing the whole number in a given county 480, and 48 the number to serve on each assize;—that for the first assize, the 48 whose names stand first in the alphabetical list thus composed shall be summoned to attend; for the next assize, the next 48; and so on. On this plan, if pursued without deviation, it will not be in the power of the sheriff (that is, of the attorney his deputy) to choose a set of eventual jurymen for the purpose of their being corrupted; but, what is worse, it will be in the power of every litigant to whom the order of things in question is known, to find his way to those on whom he proposes to himself to make the experiment—to find his way to them of himself, and without the need of being beholden for introduction to an undersheriff or anybody else.
Thus much as to juries in general—thus much as to common juries: thus much as to what, in that case, is capable of having place. As to what in that case actually has place, it is what it might take up too much room to state, and what at this moment the means of inquiring into are not within my reach.
As to the case of special juries, what actually has place lies in a narrower compass, and at the same time within reach. In this case, everything that, for the furtherance of corruption, by possibility could have been done, has been done: whether it be constant corruption, administered, and with certainty of success, by and for the benefit of persons in “high situations” as such, and without either risk or trouble on their part, as above—or occasional and casual corruption, to be on this or that occasion administered, in his private and separate account, by this or that particular person, in or out of high situation, to whom it may happen to stand in need of such assistance. In the first place, choice (as we have so often had occasion to observe) is put into their hands; viz. by the power of “nomination” vested in the hands of the master packer for that purpose. In the next place, among the comparatively small number 24, in the instance of which the choice is made, and attendance accordingly commanded, “foreknowledge” is rendered, to the purpose in question, “absolute:” for out of these 24, who, as per list, are summoned, of those that appear, the 12 whose names stand first upon that same list, are the 12 that serve.
For the furtherance of corruption, the utmost that could have been done, having thus been actually done, to what cause, to what psychological cause, having its seat in the breasts of learned and reverend lords and gentlemen, shall the result be ascribed? To design? It would be of a piece with all their other designs, and all their other doings. To imbecility? On the part of no other set of men would imbecility be to be found, weak and palpable enough to match with it. For note once more, that it was amid the cry of corruption—actually experienced and acknowledged corruption, that this state of things, so exquisitely adapted to the purpose of that same corruption, was in and by this very statute (3 Geo. II. c. 25) part confirmed, part organized.
Unanimity increases the Aid afforded to Corruption by Foreknowledge.
By the principle of forced unanimity, so long as that abomination is suffered to continue, an enormous degree of facility, as already observed, is given to the corruption of jurors: since by any one of the twelve, so that one be but sufficiently remunerated for the quantity of endurance necessary, the suffrages of the remaining eleven may be forced. And though, in any given instance, as matters stand, it should not be capable of being foreknown to a certainty that this or that one individual will on the particular trial in question be upon the serving list—foreknown, viz. time enough for administering to him the matter of corruption with effect, yet by gaining divers individuals, each of them likely to stand upon the serving list, the probability of success may in any degree be increased.
Were that flagitious principle rooted out, and the principle which gives the power to a majority seated in its place—were this done, even a slight admixture of chance (if it be too much to say the rational and honest principle of itself, and without the help of chance) would suffice to render corruption in this shape morally impossible. If no number less than a majority, viz. less than seven out of twelve, were sufficient to command a verdict palpably unjust upon the face of it, no such verdict could be commanded without a completely successful application of the matter of corruption to that large number. But, taking the state of morality among the people upon the worst footing imaginable, the chance of finding, or creating on the sudden, so much depravity on the part of so large a number, and that out of a limited greater number, cannot but be extremely small: and, ere he could give himself that small chance, the corrupter would be under the necessity of putting it into the power of each of the seven to ruin him, in character at least, by covering him with infamy. Such would be his difficulty, even supposing the twelve who are to serve on the trial—supposing them, all of them, in their turn, at and during the quantity of time that lies open to the intrigue—all of them during all that time to a certainty foreknown. And suppose such absolute foreknowledge unattainable—suppose, for example, four-and-twenty, the number of the gross list, of any of whom the twelve upon the serving list may happen to be composed, it is easy to see that, to this our supposed corrupter, the improbability of success, and at the same time the magnitude of the danger, must, in this case, receive a prodigious increase: for, in this case, to give him the same assurance of success as in the former case, no smaller than nineteen is the number that would be necessary to be thus corrupted.
But upon the principle of sham unanimity—upon this principle, which gives the command of the verdict to any one—not only, if all twelve were foreknown, might the corrupter, by the corruption of a single juryman, give himself a certainty of success, but if no other knowledge were obtained, more determinate than that of the four-and-twenty out of which the twelve would be taken, the same success, in the preparatory operation of corruption, would still give him an even chance of succeeding in the ultimate object of the corruption, viz. the commanding of an unjust verdict: and, by every additional juryman whom he could contrive to gain, this even chance would receive a proportionable augmentation, until by the rising of the number of the corrupted to thirteen, absolute certainty would even in this case be produced.
Thus stands the matter upon the supposition of a gross list equal in number to twice the serving list: augment the relative number of the gross list, the difficulty of corruption will, it is evident, be in both cases increased: and in each case by an amount that might be ascertained, but is not worth ascertaining for the present purpose.
One thing will be evident, viz. that, on the principle which gives the command of the verdict to a majority out of twelve, under the most favourable circumstances in respect of the number of the gross list, corruption could never obtain a chance nearly equal to what, on the principle which gives the command of the verdict to any one corrupted juryman, it possesses under the circumstances least favourable in that respect. Seventy-two is the greatest number that can in any county be returned and appear for the trial of all the causes that can at one and the same assize present themselves:* and even under so great a disadvantage, if the power be in a single juryman, the corruption, though it were but of a single man of the seventy-two, gives the corrupter a chance of success, viz. as one to six. Whereas, if the power be in the majority, though the number resturned and appearing be no greater than the twelve who are necessary to serve, insomuch that all who are to serve are foreknown, the corrupter may have gained six, or at least five, without having as yet given himself any chance at all.*
Arrangements respecting Form: viz. the Form of the proposed New Law.
For giving expression to the operations, which, under this head, require, in my view of the matter, to be performed, a very few words will suffice. Presenting themselves as requisite in relation to this part of the field of law, the mention of these operations could not, on this occasion, be omitted. But, in relation to this part of the field, the demand for these operations cannot be more urgent, nor the propriety of them more indisputable, than they are in relation to every other part of the same as yet scarce cultivated waste.
1. Consolidate into one act all laws relative to juries.
2. Repeal in the lump the whole of the existing chaos.
3. Place the whole of the rule of action on the footing of statute law. Of the practice of the several judicatories, whatsoever is approved of, adopt and give expression to: whatsoever is not approved of, abrogate in the lump.
4. Except in virtue of such special powers, as shall, in the tenor of the law, be thought fit to be given for the purpose, forbid all alterations and regulations that might otherwise be made in or respecting the field of practice in question, in and by the authority of the respective judicatories.
STATE OF JURY PACKAGE IN SCOTLAND.
On this head much stands expressed in a few words.
Extract from an anonymous pamphlet published on the occasion of the Scotch judiciary reform, under the title of Reflections on the Administration of Civil Justice in Scotland, &c.: Edinburgh, for Blackwood; London, for Longman & Co. 1806—page 88, note:—
“The mode of appointing juries in criminal cases is most improper. The sheriff may return forty-five men chosen by him at pleasure; the judge may select any fifteen of them to compose the jury; peremptory challenges are unknown. Is it not obvious that these two officers have the fate of a prisoner often in their hands?—in other words, that they can return what is termed in England a packed jury? Nothing should be left in criminal cases to the discretion of persons over whom the crown is always likely to have influence; and therefore it is much to be wished that a clause should be introduced in the bill, which is to be founded on the resolutions, in order to regulate the appointment of juries in criminal cases.”*
If, in the statement thus made by an anonymous, though not altogether an unknown hand, there be a syllable of truth—and by known, and well-informed and trust-worthy informants, I am assured that it is correctly true—the packing system has in that kingdom been carried to a pitch of perfection equal in efficiency at least, if not in dexterity, to that which it has attained in England, and this not only where personal liberty alone, but where life and everything else, is at stake. If, in the whole population of that kingdom, electors and elected, there be a human being fit for anything better than to serve as a tool in the chest belonging to Lord Melville, or a commissioner in the committee of reform, headed and characterized by that name, behold an occasion for him to show himself.
HUMBLE PROPOSAL FOR RESTORING THE AUTHORITY OF PARLIAMENT.
Unless the Authority of Parliament be vindicated, Package cannot be abolished.
I come now to the second of the political disorders here in question, viz. the contempt—the habitual and undisguised contempt—manifested by judges, and other subordinate functionaries, as towards the authority of parliament: or rather (for in this consists the malignity of the disorder) the connivance—the habitual and unvaried connivance—by which this contempt has been encouraged and confirmed.
On this head, a conception that will naturally present itself to everybody, and at the first glance, is—that the present is of the number of those occasions in which the difficulty consists—not so much in determining what it is that is proper to be done, as in engaging men to do what is proper to be done, whatsoever it may be.
To the justness of this remark I can find nothing to oppose: accordingly, of the two following sections, the business of the first is—to do what can be done by so weak an instrument of communication as the present, towards holding up to view the flagrancy of the disease: of the other, to present to view, and in a specific shape, what seems to be the proper remedy, penetrated all the while with the clearest and acutest sense of the minuteness of the chance in favour of its being applied.
This, bitter as it is, is a cup which cannot be put by. Package, it is true, constitutes that particular abuse which is the object—the only direct object—of the present work. But so intimate is the connexion between this disorder, and that which consists in the habitual contempt of parliament, that while this radical weakness remains uncured, any remedy that can be applied to the derivative malady will either be from the very first inoperative, or, at the very best, will in a short time cease to operate. If the authority of parliament had not been set at nought by judges, the package of juries could not have been established, much less, as we have seen it, openly defended: and while parliament continues, as it has done, to suffer its authority to be thus set at nought, in vain would it endeavour to put an end to this package: juries will, as at present, continue to be packed. To apply to this abuse the only possible remedy—I mean, the only possible direct and special remedy—it would be necessary that parliament should make a fresh law: but if, when the fresh law has been made, judges continue determined to deal by it as judges have done hitherto by the existing ones, viz. to disobey it—and parliament to do as parliament has done hitherto, viz. to sit still, and, without a thought of giving effect to its authority, see itself disobeyed, the trouble of making fresh laws, under the notion of applying a remedy to the other abuse, may as well be spared.
Contempt put upon the Bill of Rights, by the Lord Chief Baron’s Package.
As to the statutes, which bear in detail upon the subject of juries, and even in respect of the clauses in question thought to bear upon special as well as common juries, these, it is true, were, on the occasion in question, by the learned judge more particularly in question, viz. the Lord Chief Baron, violated in intention only, and not in effect: special juries having, by the fraud of the learned penman, been exempted, as we have seen,* from those provisions against corruption, the demand for which was so much more urgent in that case than in the instance of common juries.
But though, in the manner that has been seen, the contempt entertained by this pre-eminently learned person (not to speak at present of any other pre-eminently learned persons) as towards the authority of parliament, failed by accident and by misconception to fall upon these statutes at which it was principally aimed, it fell, as we shall see, without accident, upon another statute, I mean the statute commonly called the Bill of Rights.†
On looking into this much-vaunted law, and in particular into those parts of it which bear upon the subject here in question, the weaknesses betrayed in it are seen to be such as cannot be thought of without regret; the imbecility, if not the treachery, of the learned penman, in whom the unlearned found themselves, as usual, under the necessity of reposing their confidence, being, on the face of it, but too distinctly visible: propositions, of the cast termed by logicians identical, fit only for the mouths and pens of drivellers: propositions which, neither conveying instruction nor imposing obligation, leave everything exactly as they find it: propositions declaring that what is right ought to be done, and what is wrong ought not to be done, and so forth.
But this weakness, though to a lover of the English constitution it cannot but be matter of regret, will not, to the pre-eminently learned person in question, afford any thing like matter of excuse. For to this so much vaunted law—to this law, as to everything else that bears the name of law, some meaning must be found: and to this law, viz. in respect of that clause in it which is here in question, no sooner will any meaning be found, than what will also be found is—that by this pre-eminently learned person, it has been violated.
In the section in question (§ 2,) two parts may be distinguished—the historical and the legislative. In the historical, the principal abuses of the then late reign are related under twelve heads; in the legislative, under an equal number of heads, the repetition of these same abuses is, to wit, by a declaration made of their illegality, reprobated.
In the historical part, of the only article which touches upon jury-trial, being the article which is numbered 9, the words are as follows:—“9. And whereas of late years partial, corrupt, and unqualified persons have been returned and served on juries in trials (and particularly divers jurors in trials for high treason, which were not freeholders.”)
In the legislative part, in the only article which touches upon this same subject, being the article which is numbered 11, the words are as follows:—“11. That jurors ought to be duly impanelled and returned (and jurors which pass upon men in trials for high treason ought to be freeholders.”)
In each of these two articles, there is a clause which does not bear upon the present subject; viz. that which speaks of high treason and freeholdership. Of the clause which does bear upon this subject, it must once more be confessed, that, if it be not sad treachery, it is sad dotage,—“that jurors ought to be duly impanelled and returned;” viz. that what in this case ought to be done, ought to be done.
In relation to the subject here in question, the law having thus in itself no meaning, to find a meaning for it. we are sent to history—to the history of the times. Consulting history, a fact that we find in every book of history that touches upon those times, is—that in the two reigns then last preceding, juries used to be packed; that is, that, instead of being left to a mode of selection, which, with reference to the crown, its dependent judges, and its other instruments, would have come under the name of accident or chance, the persons serving as jurors were determined by choice; viz. by the choice made of them by these same instruments. The choice having for its notorious object the causing unjust verdicts to be delivered, persons, who either of themselves were “partial,” or were made so by being made “corrupt,” were taken for the objects of such choice, and, if they were not found so, were made so, by that choice.
That in the exact bulk to which it has been swollen, and in the exact shape into which it has been, by our pre-eminently learned artist, moulded, the abuse relative to juries was not in the contemplation of the framers of those clauses, must I think be confessed: perfection, such as this which we have seen realized by Lord Chief Baron Macdonald, outstripped—not only the observations made by the Maynards, the Somerses, the Hawleses, the Pollexfens—but the most sanguine hopes of the Scroggses and the Jefferieses with their Et cæteras of those times.
But what, on the other side, cannot, it is supposed, be very easily denied, is—that, in the major abuse of these our maturer times, the minor abuse of those immature times is included. The abuse of those days was, that after hard labour bestowed upon the matter on each separate occasion, persons, who were found or rendered “corrupt”—or in some other way “partial,” were on great occasions now and then “returned,” and made to “serve on juries in trials.” The abuse of these days is—that, under the arrangements made—made and in despite of remonstrance persevered in—persevered in either for that purpose or for none at all, persons are on all occasions, great and small, caused to be “returned,” and to “serve,”—persons such as, by the permanency with which they are invested, and the habitual, but ever withholdable bribes, with which they are fed, cannot but have been rendered “corrupt”—corrupt to a degree of corruption, of which, as surely as by any “partiality” it could be made to be, injustice is, upon every desired occasion, the habitual consequence.
In vain would his Lordship say—Those whom I have caused to be “impanelled and returned,”—as you would say, not “duly impanelled and returned,”—are not jurors: they are in effect commissioners, and members of a standing board of my own framing—persons whom, into the box which ought to have none in it but jurors, I have so managed as to introduce, under the name of jurors. Those whom you take for jurors—those whom I have thus “impanelled and returned” under the name of jurors, are not jurors; and therefore, in causing them to be “impanelled and returned,” even though it should not be duly impanelled and returned, I have not offended against the Bill of Rights.
“My intention was not to ‘maim and disfigure’ the man—my intention was to kill him: and therefore, if you punish me as for maiming and disfiguring him, you punish me without law.” Such was the plea of a very ingenious as well as learned person, a Mr. Coke, who, on the act of 22 and 23 Car. I. c. 1, was indicted for the maiming and disfiguring of a Mr. Crisp—“What I am accused of intending to do is the committing the lesser crime: what I really intended to do is only a greater crime, in which the other is comprised.” This plea did not avail Mr. Coke, and as little, if there be anything like justice in the country, will it avail the Right Honourable Sir Archibald Macdonald.
But (says somebody) as one swallow suffices not to make summer, so one act suffices not to make a habit. What, in this particular instance, was done, may not perhaps have been altogether justifiable; but, if for the express and sole purpose of correcting this error, so it should come to pass that a fresh law were made, can you, by this one instance of irregularity, hold yourself warranted in apprehending that a law so made would not be obeyed?
I answer, Yes: even by this one instance, the disobedience being so deliberately and determinately, and after such warning and remonstrance, and upon such principle as have been avowed, persevered in. But, of the existence of the habit, and my expectation of the eventual continuance of it, it is on this one act alone that I ground myself; and, to render it manifest, and beyond all possibility of dispute, that the contempt put upon parliament is determined, and rooted in a sort of principle, I proceed to bring to view, out of a countless multitude that might have been produced, another instance or two, such as either the matter of the present inquiry, or chance recollection, has happened to throw in my way.
Recent Contempt of Howard’s Act by the Detention of Acquitted Prisoners.
To enumerate all the instances in which the symptoms of the disorder in question have exemplified themselves, would require a volume. Of the example which here follows, the particular use is—to show the obstinacy of the disease: and it is only by casual symptoms, brought to light by rare occurrences, such as accident may not either bring to light or so much as give birth to, twice in half a century, that this quality in the disease can have been made manifest. In the books, the contempt—the simple contempt—may indeed be seen breaking out continually;—but it is only by extra-judicial conversations or correspondences, that the obstinacy of it could have been displayed in its genuine colours.
By obstinacy on one part, energy on some other part, and acting in an opposite direction, is implied. But in any court of judicature, on the occasion of a cause, no such energy ever has been known to be, or with any colour of reason could be expected to be, displayed. On the occasion of a cause, the only sort of person by whom any such quality as energy can in any direction be displayed, is an advocate. But, from the advocate, whose contention is before and under the judge, not with and against the judge, at belonge not to the station of the judge to experience any thing like adverse energy. One common interest—one and the same sinister interest—links them together in indissoluble bands. Accommodation to indolence, gratification to vengeance, unmerited reputation, sinister emolument, lawless power,—whatsoever of all these good things the judge holds in possession, the advocate beholds in expectancy. The weakness of the legislature constitutes the lawless power of the judge: and the present power of the judge is the future power of the advocate. With the legislator, his supposed superior, the judge never comes in contact: from the legislator he knows not what it is to experience resistance. The legislator makes laws: and the judge, according as it happens to them to suit or thwart his views, gives effect or inefficiency to them, as he pleases. In parliament, be his rebellion ever so flagrant, he beholds neither inspector nor denunciator, much less an avenger: two sorts of men alone does he behold there—admirers—ignorant and awe-struck admirers—or accomplices or abettors.
Thus it is that the king—I mean the king in parliament—being sunk into a King-Log, not only the great bull-frogs, but the meanest tadpole, views his humiliation with complacency, and beholds in it a source—an inexhaustible source—of power, impunity, and triumph for himself.
Evidence of obstinacy in one quarter requires, as above, and supposes, energy, adverse energy, in another: on the particular occasien here in question, thus it is that, government being in this country in the state above described, the energy necessary on one side, and consequently all manifestation of obstinacy on the other, might have been wanting for any number of additional ages, had it not been for the till-now-unexampled union of public spirit and intrepidity—well-directed public spirit and persevering intrepidity—in the person of Sir Richard Phillips.
Materials I have none, over and above those which have already been laid before the public by himself: but in his work they stand mixed with other matter in abundance: and, for displaying their importance with relation to the design of the present work, observations have been found requisite, such as could not have come, with equal propriety, from any person, by whose testimony the facts themselves were furnished.
In regard to the degree of credit due to it, one very short observation may suffice. A twelvemonth and more has elapsed, since his statements on this head have been made public, and in all this time not a syllable of contradiction has appeared from any one of the official persons whose conduct and language is here in question. One of two things: either he contradiction could be given—or, in the style of the pre-eminently learned judge, to give it was not thought “worth while.”
Judges publicly charged, and by a functionary, himself in “high,” however subordinate “situation”—charged with disobedience—wilful disobedience, to parliament: and in their estimation so trivial the imputation, and the opinion of its truth so unproductive of all cause of uneasiness or apprehension to themselves, that whether it prevail or not is to them and their feelings matter of indifference. This being the state of judicature, in what a state is government!
The case that gave occasion to this display is as follows:—
By the statute 14 Geo. III. c. 20, § 1, as copied by Sir Richard Phillips, it is enacted, “That every prisoner charged with any crime, or as an accessary thereto, against whom no bill of indictment shall be found by the grand jury, shall be IMMEDIATELY set at large, in open court, without the payment of any fee,” &c.*
Of an enactment thus clear and explicit, the habitual violation is, in a memorial addressed to the Recorder of London—couched in the most respectful terms, dated the 3d of November 1807, and presented in the names and with the concurrence of both the sheriffs—presented to the notice of that learned judge on the 3d of November 1807. For eleven days no answer. On the 14th of the month (no answer yet received) follows, in the form of a note, an address from Mr. Sheriff Phillips alone, to the same learned gentleman, for the declared purpose, indeed, of “reminding him” of the above paper, but again in the most cordial as well as uniformly respectful terms.
The season of delay was now past: now comes the season of promptitude, at least, if not of precipitation.
A few hours brought to Sir Richard an answer, from which, what belongs indispensably to the present purpose (not to touch upon matter foreign to it,) the following is an extract:—
“As the commission of gaol delivery at the Old Bailey is constituted of the highest, and of all the law authorities in the kingdom, the twelve judges of England, the whole magistracy of the city, besides other great and respectable names therein, Mr. Phillips, upon consideration, will surely see how indecorous it would be in the Recorder of London to discuss and argue of the power, authority, and practice of that court, with one of the sheriffs, who, however privately esteemed and regarded by the Recorder, is, with respect to that commission, but an officer and minister of the court.”
Business, at least where the public has an interest in it, does not, we shall see, linger with Sir Richard Phillips. Not after an interval of eleven days, but on that same day, in reply goes another note from him to the same learned judge, always in the same style of unvarying respect, but expressing “his earnest hope” that the necessary measures would be taken for paying obedience to the law; and stating, amongst other matters, “that he understood, in a late conversation with Lord Ellenborough on this very subject, that points of practice in the Old Bailey court rest chiefly, if not entirely, with the Recorder, as the law-officer of the corporation.”
Thus, had it depended upon Mr. Recorder, would have ended the whole business. Fortunately, “within a few weeks after,” the sheriff, as he tells us, “had an opportunity of pressing the subject again on the notice of the Recorder, when (continues he) he peremptorily told me, that he never would consent to the alteration in the practice of the court which I proposed, and as long as he lived, it should continue as it is.”
Thus far Sir Richard Phillips. As to Mr. Recorder of London, for my own part, if with any propriety I can be said to have any personal acquaintance at all with that learned judge, it is of no other sort than what, as towards him, would tend to cherish in my mind those sentiments of respect and regard which were so uniformly manifested towards him by Sir Richard Phillips.
But, though a very obscure and insignificant person, I have the honour to be a British subject. I say subject: for on that ground, rather than on so technical and narrow an one as that of freeholdership, do I choose to rest my claim. I am a British subject; and, in that character, I feel as strong an interest in the preservation of the English constitution, as any one can feel in the preservation, or even in the destruction of it. And, in consideration of this interest it is, that it seems proper for me to declare—that, although instead of being that great person to whom, by the description of points of practice, this part of the liberties of Englishmen is, it seems, “bargained, assigned, transferred, and set over by the twelve judges, he were my brother, my opinion concerning him would still be this, viz. that if it really were the case, that the continuance of the practice depended upon his life, the last day of that life would to his country be a most happy one.
A conspiracy of the twelve judges, with the Recorder of London at their head (for such it seems is the new order of things)—a conspiracy of the twelve judges with their ringleader the recorder, for mending the constitution of the country, by resisting, overruling, and treating with avowed contempt, the authority of parliament! Such is the state of things brought to view by this evidence. Such is the state of things which I would wish to recommend to the consideration, the serious consideration, of all such British subjects, if any such there be, in whose eyes the preservation of the constitution of the country is of more value than any share which, in the character of lawyers, or confederates with lawyers, it may happen to them to look for in the plunder of it.
“Mr. Phillips, upon consideration, will surely see how indecorous it would be in the Recorder of London to discuss and argue of the power, authority, and practice of that court with one of the sheriffs, who is but an officer and minister of the court.” No: if in any such argument Mr. Phillips could have seen anything indecorous, his view of the matter would, I will confess, have been very different from mine.
Indecorum in arguing, in relation to the point in question, the practice of the court? No: but something a great deal worse than indecorum in the determination—the obstinate and rebellious determination—to continue in such practice.
The House of Commons—yes, the House of Commons—there is the place, at which the discussion on this question should now be carried on. As to argument, of argument, of further discourse,—unless what as above is stated to have been his language, be not only in tenor but in purport denied to have been so—of further discourse, in any shape, on the part of the learned gentleman, there is no need:—hearing is for him the only ulterior function needful: hearing, his function—genuflection, his proper posture for the performance of it.
The inhumanity of the practice, its rank and barefaced injustice, the oppression thus heaped—heaped upon injured and established innocence—the contrast it makes with their principle of nullification—the instrument manufactured by their partnership for dealing out impunity at their own pleasure, and their own price—for dealing it out, not to merely possible only, but to convicted guilt* —all these are subjects which must for the present be discarded, as being foreign to the design of the present work, as well as of the present chapter. The subject which alone belongs to the present purpose is the subversion of constitutional order—the contempt—the wilful, the deliberate, the confederated contempt—of that supreme power, the supremacy of which is in words acknowledged, and in grimace bowed down to, even by themselves. Alas! by what terms can such enormity be expressed? The very language sinks under it!†
Parliamentary Operations proposed.
Under this head, a few short and compressed hints are as much as, if not more than, will be found “endurable,” especially under the Perceval dynasty, from a self-created censor, who has neither a coronet in his pedigree, nor so much as a place in the red book:—
I. Committee of Inquiry, to collect and report the facts.
Subject of inquiry—cases of disobedience to acts of parliament on the part of persons concerned in the administration of justice; limitation necessary, at least in the first instance, confining the remark to such cases in which misconception was impossible. No fear that by this restriction the work would be left without materials to operate upon. Without such restriction, the work would have no end.
To render the import of the restriction clear, an example or two will suffice. Cases which have more or less of arithmetic in them will in general be found to afford the clearest samples:—
1. One such has been brought to view already. Law, prohibiting the giving, on such or such an occasion, to a person of such or such a description, money to the amount of more than one guinea. Official transgression, on an occasion of that same description, to a person of that same description, sum given, two guineas.—(See above, Part III.)
2. Law, in a case therein described, giving to the successful party double costs:—official transgression—and here the office is judicial—giving, and that avowedly, instead of the double costs, single costs, with an addition of only half single costs. Acts of parliament, upon which contempt has been poured in this shape, are to be found in swarms: they are pointed out by the indexes.
3. Law, as above, giving to the successful party treble costs:—judicial transgression, giving, instead of the treble costs, single costs, with the addition of only three quarters of the amount of single costs. Another swarm of statutes, upon which the cup of contempt has thus been poured to the very dregs.
II. Parliamentary Resolutions.
The habit of transgression established, what shall then be done?
The least that can be done is for the House (I suppose it the House of Commons) to pass a string of resolutions, condemning the practice, and denouncing eventual punishment in future. Happily this house, in conjunction with the other, possesses, in the right of addressing the king for removal, a virtual power altogether adequate to the purpose:—“Resolved, that in case of any misinterpretation put from henceforward upon any act of parliament, by any judge or judges, should such interpretation be deemed wilful, this House will address his Majesty, praying the removal of such judge or judges.” After wilful, add, if necessary, “and not proceeding from error in judgment merely.” Something to this effect may serve as a sample. But to fix the meaning, and save it, if possible, from being explained away, an example or two, as above, if the law of the Medes and Persians would admit of any such innovation, might be of use.
As to retrospection in any shape, on this question, victory must, for any part I shall presume to take, be left as a prize to eloquence. Honourable gentlemen, according to whose theory bulls take a pleasure in being baited may try it upon judges.
If the measure they so freely mete to others,* were to be meted to them again (I speak of judges,) the question would be decided, and the benches cleared. But, in my own view of the matter, this measure, being in every application that can be made of it, a most false and mischievous one, it depends not upon them, by any use they can make of it, to make it otherwise.
Retrospective Censure, is it to be looked for?
The notion upon every occasion assumed and taken for granted among lawyers is,—that to the judges—meaning the twelve judges and the chancellor—acting respectively in one or other of their many and various spheres—belongs the interpretation—the uncensurable as well as unappealable, and thence the absolute and uncontroulable interpretation—of whatsoever goes by the name of law: viz. not only of that spurious sort of law, which, by the oscitantcy of parliaments they have been suffered to make—to make of themselves and for themselves—but also of that only genuine sort of law, which is made by parliament.
In certain cases indeed, but in certain cases only, the transaction being, in some shape or other, capable of being brought before the House of Lords, the conduct of these official lawyers may to some purposes be weighed by other hands, be weighed by non-learned hands. But forasmuch as where any judicatory, composed of any one or more of these thirteen potentates, is in question, every idea of censure is excluded; reversal, or modification of the judicial transaction, is the only purpose to which revision is considered as capable of being performed: and though, in point of right, non-learned lords cannot, on these, any more than on any other occasions, be avowedly debarred either from speech or vote, yet, in point of fitness and propriety, the very appellation thus incontrovertibly applicable to them, suffices to indicate, how incongruous, on these occasions, any interposition from so weak a quarter would be deemed—if not for the purpose of reversal or modification of the interpretation itself, at any rate for any such purpose as that of censure to be passed on the interpreters.
In the putting of any such interpretation, being still but men—(for this concession, such is their candour and humility, they may be depended upon for making)—in the putting of any such interpretation, they are liable to fall into error: but, be that error what it may, at least so as competency of jurisdiction be out of dispute, it never can be so much as censurable, much less punishable.
Now in this I cannot but behold a doctrine, against which, had I a hundred hands, I would protest with all of them, as being inconsistent with all government. Admit this, parliament is but a tool—a corrupt as well as a blind and passive tool—in the hands of lawyers and their confederates. Admit but this, transgression will be heaped upon transgression, till the whole power of the country, and with it, in due season, the whole property of the country, will be avowedly in their hands:—admit but this, sooner or later they will construe the whole money of the country into fees, as at one time the clergy were on the point of consecrating the whole land of the country into churchyards:—since, let them carry their usurpations, their oppressions, their extortions, to ever so enormous a length, they have never anything to fear—they have still everything to hope, or rather to make sure of.
Reading or thinking of those judges, whose sanction was lent to ship-money,—Ah! how innocent were those (a thousand times have I said to myself,) in comparison of these of modern times! How much more clearly was their transgression a transgression against the common welfare—against law as it ought to have been than against law as it then was! By what a host of precedents was it not sanctioned! And, when statute law is out of the question, of what stuff is law made, or so much as pretended to be made, if not of precedents?
No fresh Acts requiring Obedience to existing ones.
But above all things let us have no fresh law: I mean for the mere purpose of causing the existing ones to be obeyed: no enacting or re-enacting statutes; still less a declaratory act.
A declaratory act?—Observe the consequences. A falsehood committed: the supremacy of the king in parliament abdicated, surrendered: surrendered to the lawyers; and on so easy a condition—to them, of all mankind, so easy—as the employing false pretences in the exercise of it: pretending to have had “doubts,” where it is impossible they should have had any:—pretending to have put upon a word a meaning, which it is impossible they should have put upon it.
In the first place, a falsehood committed. “Whereas doubts have arisen . . .”—Doubts arisen? doubts about what?—whether immediately means immediately? Are lawyers the only persons who know what immediately means?—are all but lawyers ignorant of it? After this first falsehood—committed by parliament itself—after this falsehood, and by means of it, comes the abdication,—the surrender—and the endless train of falsehoods—falsehoods bespoken of judges, by an order so clearly given, and which with such regular alacrity would be executed.
Yes:—to make a fresh act would be actually to yield the point to the lawyers, to confirm the usurpation instead of checking it. It would be allowing them the very negative in question: the negative which, without as yet daring to claim it, they have been exercising: a negative, which they want but this allowance to exercise at pleasure, and at any time, upon all acts. Take at pleasure any one future act: the negative having (suppose) been exercised upon that act, the worst that could happen would be another act: which act, when passed, would be just as completely subject to their negative, as its predecessor was: and so toties quoties. By every such act, the uncertainty—“the glorious uncertainty of the law”—would receive fresh confirmation, and, if possible, fresh increase: the uncertainty of the law, and the certainty of ruin to every man, not above the common ranks of life, who, with the words of it before him, should be ill enough advised to ascribe anything like certainty to it.
Taking cognizance of a murder, and inflicting punishment accordingly, the judges of the Common Pleas, acting as such, would themselves be murderers, and as such punishable. This is what our men of law themselves have not scrupled to declare.* Why? Because in this purely ideal case, if the authors of the transgression are lawyers, so are they also who are to judge of it and to punish it.
Here then is a transgression on which, according to their own doctrine, punishment may attach, even though the transgressor be a judge, acting in his character of judge.
Allow then (says a loyal subject to these disloyal usurpers,) allow then, that where the law transgressed by you is a law of the king’s making—made by the king in parliament—allow that in that case, if, to the conviction of every man that sees the words of the law, your trangression has been a completely wilful one, you are not exempt from punishment,—allow but this, this is all we want of you. What we do not want is—to see you in any such posture, as that which, in the case of your own putting, you would figure in. But what we do want to see you in is—a kneeling posture—if not literally, at least figuratively:—kneeling, like one of king James’s parliaments, “upon the knees of your hearts.” Yes, and in this posture we must see you, or parliament is a laughing stock—you tyrants—and we slaves.
The constitution, in short, is already at an end, and the government a mere tyranny in the hands of the judges, if, to save them harmless against the punishment due for a transgression committed by them against the law, it be sufficient to them in all cases, or even in any case, to say, such is the construction that we put upon it: if, in the instance of this as of every other set of men, for the purpose of condemning them, and if guilty, punishing them, it be not, to whatever authority it belongs to sit in judgment on their conduct, competent, if so it appear, to pronounce that the allegation, express or implied, of their having believed such and such to have been, on the occasion in question, the intention of the legislature, is not true.
To the meanest subject that is to be found—to him on whose part, not only in relation to the particular import, but in relation to the very existence of the law in question, ignorance is at the same time most certain and most excusable, such ignorance affords not, in the breast of those arbiters of his fate, either justification, or so much as excuse:* and by the mere supposition of it, and that an untrue one, shall such ignorance afford not only excuse but justification to those in whose situation, even without other transgression, such ignorance—ignorance of the law—is itself a crime?
No:—neither on this nor on any other occasion: no; on no occasion, nor on any account, on the part of learned gentlemen will there be any objection to fresh acts. Fresh acts, besides evidencing, on an occasion such as this, the impotency of the authority that made the former ones, make, on every occasion, fresh confusion, and fresh fees. Fresh acts make the pot boil brisk in the little kitchen of the attorney: fresh acts make the cauldron boil brisk in the great victualling offices attached to higher fee’d as well as feefed situations. No: on any occasion there will not, on the part of lawyers in general, be any more objection to fresh acts, than on a particular occasion there was, on the part of Lord Melville, to the bringing in, and carrying into a law, a bill for preventing a paymaster of the navy from applying the money of the people to his own use. On these subjects the understanding has been general and constant. So far as the binding and punishing force of the laws bears upon men who neither are in power, nor are to receive protection from men in power, so far they are to be executed: so far as they would bear hard upon men who are in power, or under the protection of men in power, so far they are to be laughed at.
In a word—to employ a system of classification the nomenclature of which is become as generally intelligible as the principles of it have been generally pursued—“tinmen” and “great characters” form the two species into which, to this purpose, the genus of his Majesty’s subjects has been divided. What then is “the use of the law?”—Bacon, who started the question, talked about it and about it, but it was reserved for his successors to give a clearer answer to it. What is now the use of the law? To fall as a millstone upon the heads of “tinmen,” to stand as a laughing-stock to “great characters.”
Prospect of Redress.
“But, these remedies of yours, by what hands are they to be administered?—Lawyers? you will find none willing: Non-lawyers? you will find none able . . . . And when all lawyers and all non-lawyers are subtracted, how many have you left?”
I answer—to the difficulty of this remedy no eye can be more acutely or profoundly sensible than his are who thus ventures to propose it. But, under favour of the inexhaustible stock of varieties incident to the human character, causes of a psychological nature, inscrutable to human eyes, have manifested, now and then, their power, in the production not only of evil but of good; yea, and will continue to do so little by little: of good, in whatsoever shape good is at the same time conceivable, and in a physical sense practicable. In one age, A proposes: in another, B moves: in a third, C carries into effect. This is the rate at which reform and improvement travel, when the surveyors of the highways are lawyers.
Assuredly, had it been my lot to find myself in the place where motions are made, some five-and-twenty or thirty years ago, a motion for a real committee of justice would at least have stood upon the journals.
A committee of justice? Oh, yes: turn to the journals and there you may see—not a parliament in which you may not see—a committee of justice. In that place you may see it: but in that place you may as well content yourself with seeing it: for, until something which would be called confusion, take the place of that which is called order, you had better not expect, unless you are fond of disappointment, to see it anywhere else.
Regular as is the appointment of this regular committee, the functions of it compose a sinecure: a sinecure no less regular and profound, than if the Perceval allowance of £38,574 a-year (reduced, alas! to less than £13,000, we are told, by deductions that somebody or other knows of,* ) were attached to the situation of each of its members, in recompence for the labour of receiving the emoluments, added to that of being said, without being so much as supposed, to do the duties of it.
But when sinecures are gone, justice, with the committees necessary for her restoration, may then come.
Such is the state of things at present. Such will continue to be the state of things, until, in some shape or other, censure—prompt as well as impartial censure—not to speak of punishment—shall take place of tardy and disregarded laws:—of declaratory acts, and explanatory acts, passed some score or some half-hundred years after the acts, those acts that wanted not to be explained, but to be enforced, had, instead of being enforced, been trampled on by “great characters,” or explained and explained away—or, what is shorter, openly scorned and trampled upon by judges.
Whether law or tyranny reigns, is a question that will be decided by the notice or no notice taken in “high situations,” and eventually in low ones, of this grievance. Till now, the tyranny had a mask: but now the mask is gone.
Great zeal everywhere for the maintenance of subordination. Subordination! But of what sort? Not of that of which universal security is the fruit: but of that, by which, for the benefit of “great characters in high situations,” all but they, their confederates, instruments, and dependents, are kept in a continual state of insecurity and bondage.
Observing the House of Lords to have at length, by the continually increasing accumulation of causes, become, in respect of its appellate jurisdiction, converted into a sort of delay-shop, in which, in pieces of an indefinite number of years’ length, delay is sold to dishonest men with other men’s money in their pockets,—observing, moreover, the grievance to be to such a degree flagrant and notorious, as to have been publicly and repeatedly held up to view in the House itself, by the only persons by whom any plan of relief, it is universally understood, could, with any prospect of success, or, according to received notions, with any sort of congruity, be laid upon the table—in the month of January 1808, I took upon me to transmit to such of the Members of both Houses as could conveniently be reached, the outline of a plan (accompanied in every article with reasons,) which I had sketched out for that purpose, under the title of a “Plan of a Judicatory, under the name ofThe Court of Lords Delegates.”†
In my own mind, a still more important, though not an inseparable part of that plan, consisted in the transferring moreover, to the proposed judicatory, that part of the immediate jurisdiction of the House of Lords which consists in the cognizance of impeachments: the decision of the delegates in those cases to be final, unless reversed or modified by the House at large, on the declared ground of censurable misconduct on the part of those their delegates.
The main principle, on which this plan was grounded, was no other than that which, whether ever expressed or no in words, will in substance be found to have served as the main principle of the Grenville act; viz. that the sense of responsibility, without which there can be no tolerably adequate security either for probity or intelligence, is less and less acute and operative, in proportion as the number of those whose share in it is extensive.
It was at this price only, as it seemed to me, that impeachment, already proclaimed in parliament as having sunk into an empty name, could be restored to that character which it was originally designed, and till of late was universally supposed, to possess, and which at different times it has in some degree possessed, viz. that of serving as a check upon political delinquency in “high situations:” and this, without consuming in judicature any part of that time which is so habitually found insufficient for the still higher and more important functions of legislation: to the end that the judicial authority of the country might upon occasion be employed in checking, removing, and in case of need even punishing, instead of being, as at present, exclusively and avowedly employed in protecting “unfitness” on the part of “great characters” in high “situations:”‡punishment being reserved for such low people as, having the misfortune of suffering from such “unfitness,” have the audacity to complain of it.
Of a censorial tribunal so constituted, what did not present itself to my view as the least important use, was—the application of a check to that corrupt despotism, to which, as above, except in name and empty show, there exists not at present any check, viz. the despotism of the judges.
Not only in my own mind, but in my own papers, the plan had in it yet other parts, the object of which was to invest the Lords, by the instrumentality of these their appointed and periodically removable delegates, not only with the power, but with the interest (without which power is nothing,) that seemed necessary to engage and fix them in the habit of rendering to the community certain services, which, by the necessary changeableness of its composition, the House of Commons is disabled from rendering with equally assured steadiness and perseverance:—one of these services being the instituting and keeping up an uninterruptedly periodical series of returns and accounts, expressive of the state of the system of judicial procedure, under a set of pre-appointed heads, embracing the whole field of judicature, and bearing specific reference to the several distinguishable ends of justice: the other, the taking occasion of such causes as should come before this judicatory in the way of appeal, to facilitate the gradual conversion of the rule of action, out of the purely conjectural, tenorless, uncognoscible, and impostrous state of unwritten, alias common law—the shapeless production of a set of note-takers, compilers, and publishing booksellers—into its only cognoscible, determinate, and unimpostrous state, viz. that of what is called written or statute law: the joint and genuine work of the king, the lords, and the delegates of the people.
For such plan, no efficient acceptance could either be expected, or so much as wished, if by the establishment of it the preponderant weight and influence of the more essential branch of the constitution were exposed to any danger of being lessened: but, that no such danger could attach upon it, could easily, and would have been actually, put out of doubt.
That, in the opinion of leading persons of opposite parties, the above plan, (meaning of course such part of it as had in the above paper been presented to view) possessed a claim to serious attention, was a fact of which I found reason to make no doubt: and, on one part, such and so public was the opinion expressed concerning it, as to render it evident, that in one event, nor that altogether an improbable one, should the same opinion continue to be entertained of it, the establishment of it would be but a natural consequence.
Had the expression of such opinion been in any instance addressed to, or accompanied with any such intimation as that of a desire that it should be, or a thought that it would be, communicated to the person whose proposal was the subject of it, the communication might have been ascribable to that sort of civility, from which any serious thought about the matter is not always to be inferred: but the communication having in every instance been the result of mere accident, clear of all design, and probably to this hour not merely unheeded but unknown, the real existence of the opinion is in each instance but so much the less exposed to doubt.
In one instance, my satisfaction would, I must confess, have been more entire, if, when reflecting on past occurrences, it had been in my power to assure myself, that that part of the plan which by the author had been regarded as a drawback, though that an indispensable one, from the mass of advantage expected from the institution, had not in other eyes constituted at least a principal recommendation of it.
But among those who are agreed about measures, it would be not only a useless but a pernicious refinement to look out for differences about motives.
Nor would any such topic have been touched upon, but that, regarding the proposed institution, as above, as capable of operating in the character of a highly useful, if not of itself a completely effectual remedy, to the political disease of which so much has just been said, the design of this work seemed to require, that of the plan in question such part as has already seen the light should now receive the same degree of publication as this work itself does; for which purpose, copies of it have now been transmitted to the publishers.
Of this increased publicity one consequence is—that in the mind of him by whom the observation shall have been made (and by whom will the observation not have been made?) that a necessary part of the plan consists in the creation of several new situations, of which some could not but be in a pre-eminent degree lucrative ones, a supposition too natural not to follow in a manner of course will be, that in this proposed mass of emolument, some share had been looked for by the projector: and that, in his mind, it was the advantage so looked for that had constituted—if not the sole, at least one, final cause—of the project. It therefore, as mankind are constituted, appears to me to be, if not absolutely necessary, at any rate highly conducive, to the unbiassed examination of the plan, to declare, as I do most distinctly, that in any emolument that ever was proposed, or may ever come to be attached to it, I never had, nor ever shall I have, any more concern, than any other person under whose eye the present page may be lying at this moment: and that, in the contrivance of it, no person by whom, for himself, or any friend of his, any expectation of any part in such emolument could have been entertained, has ever been consulted with: no person having been in fact consulted with upon the subject, either before the paper went into circulation as above, or since.
Not that the plan is in itself a whit the better, or the less bad, for a circumstance thus collateral and incidental to it: and should any plan for the same purpose ever be brought on the carpet by any other hand, the author may be assured, that no personal advantage that may be found included in it for his own particular benefit, or that of any of his friends, will by me be pleaded in bar to the acceptance of it. In my view of the matter, be the measure what it may, instead of a bar, any advantage accruing to an individual, constitutes, I must confess, a plea in favour of it. The indication of any such advantage coupled with the appellation of a job,—this argument, as it is a very easy and a very common, so is it a very commodious argument for such politicians as, being conscious of their inability to form any direct and specific estimate of the advantages and disadvantages of any plan which requires hands for the execution of it, have recourse to this circumstance in the character of an article of circumstantial evidence, and that conclusive, establishing, and that at so small an expense as that of a single word, not only the ineligibility but the corruptness of the measure:—but it will not pass in any such character with any man, who, being duly aware that, in all its branches, government consists but in a choice of evils—evils produced, that in each instance greater good may come—holds himself, on the occasion in question, not incompetent to the task of weighing the good against the evil, and determining on which side the balance is to be found.
Supposing the plan in question received, as above, in all its projected parts, the court of Lords’ Delegates would, without the name, add to its other characters that of a school, and that not only of judicature but of legislation: a school in which such of our noble youth (supposing any such to be found,) to whom the study might not, any more than the practice of that art does at present, appear beneath their dignity, might find the means of instruction as well as exercise: a school in which not only the exercise, but, by means of the exercise, the prizes, might, instead of remaining a monopoly in the hands of those whose interest it is that the body of the law be in all its points in as bad a state as possible, lie open to those also whose interest, in the shape of reputation and conscience, would on this occasion act in alliance with their duty, and whose interest would not, at any rate, be in any shape at variance with it.
Lastly, being occupied in preparing with all expedition for the press a work on parliamentary reform, in which, if my own conception of the matter be correct, the necessity of such a measure is placed beyond the reach of doubt, followed by a plan for that purpose, accompanied in each article with reasons, and answers to objections (a plan in the contrivance of which I saw but little reason to go in quest of novelty,) it seemed to me of use that it should be understood, and that most clearly, that to engage a man’s opinions and affections in favour of such a measure, no other propensity is necessary than a desire—not to pull down, but to uphold—not to wrest power out of the hands of present possessors, but to render them somewhat less generally and flagrantly inept than at present for, as well as disdainful of, the exercise of it: that so, when among those questions which sooner or later will inevitably be urged, this also should be put—viz. what are the occupiers of that room with the gilt chair in it good for, unless it be to serve as tools in the hands of the—general, who now and then comes in form and sits in it—a set of implements constituting, when put together, a clumsy piece of machinery for producing the effect of a simple negative—those to whom any such searching question happens to be addressed, may have some better answer at hand than what has been furnished by the threadbare and transparent fallacies that have hitherto been seen to be employed upon that service.
The Hospital of Incurables was a name invented for that great room—not by any such plebeian as myself, but by a noble practitioner (the Earl of Chesterfield,) to whose penetrating eye the condition of all the wards, with all the patients in it, had by long observation and experience been rendered so familiar. By him, as the name thus bestowed bears witness, the condition of the inhabitants was regarded as already desperate. For my own part, whether it be, that being more given to hope, and less to satire, as well as somewhat more accustomed to look out for expedients, than that veteran courtier, my judgment has been led astray by my affections, my views of the case are less desponding. As hospitals are apt to be, and as this in particular was once pronounced to be* —pronounced so by the inhabitants themselves when not half so numerous as at present—it appears to me, as it has done to others, too much crowded: in which case it is the less to be wondered at, if, of a species of vital gas known in the old nomenclature by the name of public spirit, a morbific deficiency should be found:—a deficiency, of which the principal effects and symptoms are an habitual lethargy and prostration of strength, admitting of no abatement but what may happen to be produced by the accidental pricking of some such stimulus as that of a canine appetite for fat sinecures. For the over-population, the remedy is too simple, as well as by those whom it concerns most nearly too well approved,† to need any further mention in this place. As to the public spirit, the apparatus for the injecting of it has been already indicated.
[* ]In this case, in the hands of the judge, the most edicient instrument of injustice may be seen in the principle and practice of nullification: by which, considered as applied to verdicts, the effect of them is destroyed, on pretences that do not so much as profess to have any relation to the merits of the cause. The pretence has always been the existence of some regulation, or (as it is called, to screen its non-existence from notice) some rule which, besides that it was never fit to have existence, had never—so far from having been sufficiently notified beforehand, in such manner as to afford to those who were punished for not having obeyed it the possibility of obeying it—had never so much as been in existence. It was on each occasion invented, and set up for the purpose of the particular injustice that was to be done.
[* ]In the case of the now obsolete mode of procedure called attaint, a juror could not be proceeded against but in conjunction with all the rest.
[* ]Attaint was, indeed, terrific enough, involving the utter ruin of all those whose lot it was to suffer under it: but to the sinister purpose here in question it was manitestly unsuitable; for it could not be inflicted on the refractory twelve, without the concurrence of double the number of other jurors, and those rendered by their rank still more highly proof against sinister influence, in every one of its three shapes.
[† ]In the state trials we have a precedent of a judge, a lord chief-justice of the King’s Bench, who, to help to satisfy the conscience of a juror, treated him with a good shaking-bout. The time was soon after the restoration, anno 1664: the chief justice, a Hyde, a relation and protegé of Lord Clarendon’s: the defendant, a libeller, an anabaptist: the libel purely of the heretical class, a class of libels of which happily much has not been heard of late years, at least under that name. It was, however, “seditious and venomous” enough: and the sedition and venom of it consisted in maintaining, contrary to the Liturgy, that the proper age for Christians to be baptized at, was the age the apostles baptized them at—with other abominations of the like stamp.
[* ]Corollary. In the same manner, and with the same mixt-mathematical certainty, the required degree of obsequiousness may be generated, in the bosoms of persons in any number, in whatsoever other situations placed, and by whatsoever other names denominated: ex. gr. commons, lords; members of a conservative, legislative, or any other sort of senate.
[* ]The oldest book of practice (such is the denomination used, among lawyers, to denote the books, in which a statement is given, of the operations and instruments in use, in the different judicatories, in the course of judicial procedure)—the oldest book of practice, of which any mention is to be found in the law catalogues, is Powell’s Attorney’s Academy. London, 1623.
[† ]Vide, for alterations since made, p. 163.—Ed.
[‡ ][Right-hand man of the judge.] In the King’s Bench two masters: one on the crown side, the other on the civil side: in the Common Pleas two prothonotaries:a in one branch of the Exchequer, a deputy-remembrancer: in another, a deputy-clerk of the Pleas, called also the master. For, in the judicial chaos, as all manner of different things go by the same name, so does the same thing go by all manner of different names.
[* ][Daily Guineas.] Times newspaper, 16th December 1806—“Yesterday morning, in the court of King’s Bench, Guildhall, eight causes for special juries appeared in the list for trial. They were all referred; in one only a verdict was taken, pro forma for the plaintiff.” See Scotch Reform, Letter IV.
[* ]Phillips, p. 153, 160.
[‡ ]In Edmunds’s Solicitor’s Guide to the Practice of the Office of Pleas in the Exchequer, London 1794, are divers bills of costs; in one of which the case of a special jury is introduced. In this part of the bill (p. 119) one of the items runs thus:—“Paid the master,” (the familiar name here given to the officer whose proper official title (see 27th Finance Report, p. 210) is deputy-clerk of the pleas)—“Paid the master, on naming the 48 special jurors, £2, 2s.” Another runs thus:—“Attending and inquiring into the connexions, &c. of the 48 jurors, 6s. 8d.” These 48 are the 48 nominated by the master packer, and composing, as above explained, the gross occasional list, from which the deductions of 12, by the agents of the parties on each side, are allowed to be made. But of whom should the inquiry be made but of the master packer, who is thus attended? For it is at his office that the several attendances charged in this part of the bill are, every one of them, paid; and to what purpose make the inquiry, if the official person of whom it is made were not, by his acquaintance with the “connexions,” &c. of these jurors, in a condition to answer it? Possessed of this knowledge, and therefore capable of giving the benefit of it to all such persons, in “high situation,” to whom it may be agreeable to produce a proper title to it? In “high situation,” such, for example, as the constellation of luminaries, for the barking at whom Mr. Cobbett and Mr. Justice Johnson were prosecuted and convicted. See further on, chap. 8.—Note, that, in this bill of costs, the cause is supposed to be a country cause: yet, for learning the “connexions,” &c. of the jurors, it is not in the country, where their residence is, but in town, viz. at this packing office, that “the inquiry” is stated as being made.
[∥ ]Crompton and Sellon’s Practice of B. R. (civil side) and C. B. 1. 437. Tidd’s Practice of B. R. (civil side) p. 725. Impey’s Practice of B. R. (civil side) p. 239. Hand’s Practice of B. R. (crown side) 1805, p. 10. Edmunds’s Practice of the Exchequer (pleas side) pp. 73-119.
[§ ]The solicitor for the treasury having a salary, receives, it is supposed, no fees, but, for the exercise of the faculty in question, adequate inducements, in other shapes, do not in that quarter seem very likely to be wanting.
[* ]These, with reference to the special jury in question, are called tales-men. But the persons to whom the denomination is on this occasion applied, are very differently circumstanced from those to whom it was originally applied; viz. in the case of the original body of jurors before the innovation gave rise to the distinction between special and common jurors: the tales-men of those days were men actually taken from the crowd of casual by-standers; as, when given at length, their Latin denomination, tales de circumstantibus, imports.
[† ]Courts three: King’s Bench, Exchequer, and Common Pleas: in each of the two former, grand electors or master packers, two: in the latter, three. See above, p. 76, note †
[‡ ]Part II. Chap. 2 and 3.
[∥ ][Guinea trade.] Of this same Guinea corps, the existence is, by a learned correspondent of the late sheriff Sir Richard Phillips, viz. the gentleman whom we shall see presently dating from Lincoln’s Inn, and in a letter destined for publicity, certified as matter of notoriety: and, though many a fact not true is spoken of as true, yet, that a fact neither notorious nor true should by a man of character be certified as notorious—by a man whose name, though not published, must have been signed—does not seem to be in the ordinary course of things.
[§ ]Phillips, p. 160.
[* ]Phillips, p. 173.
[† ][Speak of others.] To Sir Richard Phillips, a considerable time before the expiration of his shrievalty, “more than a hundred applications” had, as he himself assures us, p. 173, been received, soliciting to be put upon “what they called the special jury list.” All these from persons termed by him “respectable persons:”—whether to these were added any other applications, viz. from persons to whom that denomination could not, in his judgment, be with propriety applied, is not mentioned.
[‡ ]Thus, in a political libel cause, the persons in whom the trembling guinea-man will behold so many eventually avenging angels, each of them a flaming sword in hand, ready to drive him out of his paradise, are not only the master on the crown side, the crown solicitor, and the judges of the court, but, among persons in high situations, all those who have been either struck, or struck at, by the instrument thus vulnerary to sentimental feelings. For a knot of them, see the case of the King against Cobbett, as reported in Cobbett’s Register, 2d June 1804,—the grand modern edition of the grand star-chamber case de libellis famosis, as hereinafter brought to view.
[† ]To facilitate conception, the word regulation has hitherto been employed, as above: the effect not being readily conceived, unless a tangible cause, adequate to the production of it, be conceived along with it. But the plain truth is, there was no regulation in the case: in the existing collections, at least, nothing of this sort is to be found. Here, as elsewhere, there was nothing in the case but what, in law language, is called practice: that is, a series of arbitrary acts, from which every man is left to frame his own conception of a law, viz. such a law as, had it had existence, would, in his conception, have formed a sufficient warrant for those acts, but which, in reality, had no existence.
[* ]Phillips, p. 153; 3 Geo. II. ch. 25, sec. 15.
[† ]In 1778, so considerable was the pressure of that vexation and expense, that, for a long course of years, a species of traffic, that had been invented by one of the bailiffs to the sheriff of Middlesex, viz. the sale of a species of indulgences, exempting men from that burthen, had composed a regular branch of his revenue. Having been proceeded against in the way of attachment, as for a contempt of the authority of the court, and self-convicted by answers to interrogatories, he was sentenced to pay a fine of £200, and committed to prison, there to remain till the fine was paid. King versus Whitaker, B. R. 12th February 1778. Cowper’s Reports, p. 752. Such was the pressure in the small county of Middlesex: what must it have been, and still be in the large ones?
[* ]Let not any such misconception take place, as that it is among the designs of these pages to present, in any unfavourable point of view, if individually taken, the characters of such persons to whose names it happens to have a place in the numerous list in question: I mean the aggregate list of persons, to the number of about 400, set down in the books as qualified to serve as special jurymen in the county of Middlesex.—Among them the only persons, to whom so much as the shadow of suspicion can attach, are those, if any such there be, whose names have been placed upon the select qualified list: and of these the names are necessarily a secret—and that not only to the public at large, but, in many instances, perhaps to themselves.
[* ]The following particulars are taken from Edmunds’ Solicitor’s Guide to the office of Pleas in the Court of Exchequer, p. 119, as containing a fuller account than I have found in any book delineative of the practice of any of the other courts. In these particulars, the difference between court and court, if any, cannot be considerable.
[* ]Suprà, Chap. IV. § 5.
[† ][Public burthens.] It was in these sentiments that, in another work (Scotch Reform, Letter IV.) on an occasion on which a show had been made of a disposition to improve, partly by imports from England, so far as concerned the civil (i. e. non-penal) branch of law, the system of judicature in Scotland, considerations were brought to view, tending to show, that, in the way of appeal from the decision pronounced by a single judge, after hearing and examining the parties face to face (as in a case determined by a court of conscience in England, a small-debt court in Scotland, or a justice of the peace in either kingdom,) all the advantages derived from the use of jury-trial might be introduced into Scottish judicature (not to speak of English:) and with great improvement—all the inconveniences avoided.
[* ]I remember hearing partialities, and even the habit of partiality, imputed by many to Lord Mansfield: I cannot take upon me to say with what truth. Partly by situation, partly by disposition, exposed to party enmity, so he accordingly was to calumny. “Lord Mansfield,” said his everlasting rival and adversary Lord Camden once—“Lord Mansfield has a way of saying—It is a rule with me—an inviolable rule—never to hear a syllable said out of court about any cause that either is, or is in the smallest degree likely to come, before me.” “Now I—for my part”—observed Lord Camden—“I could hear as many people as choose it talk to me about their causes—it would never make any the slightest impression upon me.” . . . . . Such was the anecdote whispered to me (Lord Camden himself at no great distance) by a noble friend of his, by whom I was bid to receive it as conclusive evidence of heroic purity.
[* ]This was among the well-known glories of Lord Mansfield—this the finale of his praises, sounded in his ears, in such dulcet accents, by his sergeant trumpeter (who was moreover one of his master packers) Sir James Burrow.
[* ]1. For an example of profit legalized by their own practice solely, and thence by their own sole and sufficient authority, take the case of sham write of error.
Number of families (plaintiffs’ families, not to reckon defendants) thus tormented, for the space of a year each, in these same 15 years, 9,226.
Here we see one specimen of the corruption, which now for these eleven years last past (reckoning from the publication of the above-mentioned Finance Reports)—for these eleven years last past (not to go any further back)—has continued on foot, with the full knowledge and connivance, if not of all the members, at any rate of all the lawyer-members, of both Houses.
In some instances, by the variable nature of the expenses, in others by the obscurity that overhangs such accounts of them as have transpired, errors in the above figures cannot but have here and there been produced. But the utmost possible amount of them is not considerable enough to warrant the expenditure of the quantity of letter-press that would be necessary for the indication of these dark spots. For the same reason, the indication of a large mass of articles by which the totals of profit are increased, viz. as well of profit to the use of the firm of Judge and Co. at large as of Do. to the use of the managing partners in particular, is omitted. (Of this branch of the trade of Judge and Co. a particular account, extracted from the Finance Report above mentioned, together with other documents furnished by the House of Lords, and illustrated by elucidations, has been digested into the form of a Table, which, under the name of English and Scotch Appeal Table for 1795, 1796, and 1797, may be had of the publishers of this work.)
In a table of actual costs given by Palmer, pp. 12 and 13, instead of the £7 : 8 : 8, I find for lawyer’s profit £12 : 2 : 11. In this total is indeed included a charge of £2 : 2s. as paid to the sheriff for summoning the special jury: and these being 24 in number, and their abodes, for anything that appears, scattered over the country, this part of the expense cannot assuredly be set down as profit, unless it be so much over and above what the sheriff, i. e. the under sheriff, would have received, had the jury been a common one.
[* ]“The liberty of the press consists in no more than this—a liberty to print now without a licence, what formerly could be printed only with one.” Per Lord Mansfield, in K. v. Woodfall, as quoted in a note in the trial, K. v. Almon, 2d June 1770, p. 62.
[† ]“Gentlemen, the law of England is a law of liberty, and consistently with this liberty, we have not an imprimatur: there is no such preliminary licence necessary.” Lord Ellenborough in K. v. Cobbett, as reported in Cobbett’s Register for June 4, 1804.
[* ]Anno 1796, in the pamphlet entitled Protest against Law tax
[* ]One shape, and perhaps the only shape, in which, in the station of judge, the existence of incapacity can be seen standing out of the reach of doubt, is indecision. For, if habitual, it may in this shape stand expressed and demonstrated in figures. Thus, suppose, in a given single-seated situation, three judges occupying that situation successively for the same length of time. The first leaves no arrear: the second leaves an arrear: the third clears off the arrear that had been left by the second, and himself leaves none. Suppose now, on the part of the second, the degree of indecision such, that the number of litigated cases decided upon by him was not a tenth, not an eighth, not a sixth, or suppose it were as much as a fourth, or even as a third, of the number despatched by his predecessor in the same length of time. In such a case, not only must the unfitness of such a judge for the situation be clear to everybody else to whom these propositions are known, but it is impossible that it should be matter of doubt to the incapable judge himself. But the judge being thus necessarily and fully conscious of his incapacity to discharge the duties of the office, the result in point of mischievousness and wrongful profit is—besides the infinite and inappreciable mass of misery produced on the part of suitors—peculation to the amount of the undue profit extracted from the office, the duties of which were thus left unperformed.
[* ]The King v. Cobbett. Cobbett’s Register, 2d June 1894, p. 853. Charge given to the jury by Lord Ellenborough, Lord Chief Justice.
[† ]Special jury causes, in a year, in the Exchequer, 84: in the King’s Bench, crown side, but 15. Phillips, p. 159.
[* ]Since the matter of the text was transmitted to the printers, accident has thrown in my way a pamphlet, bearing date in 1794, and entitled, “A Vindication of the Conduct and Principles of the Printer of the Newark Herald. . . . . . by Daniel Holt, Printer of the Newark Herald.” In page 19, I read, in form of a note, a piece of history, which presents itself as not altogether inapposite to the present purpose. To any one, by whom any degree of credence is given to the statements contained in it, it will serve to prove two things: 1. That at the time in question, viz. anno 1777, no guinea corps had, for King’s Bench service, received as yet any such organization, as we have seen, and shall see again and again, a corps of that description and character to have received for Exchequer service: 2. That though in the King’s Bench, and for King’s Bench service, no such regular corps had been as yet put upon the establishment, a strong sense of the need which the service had of such a corps was entertained, and that honourable court had accordingly found extra work for one of those fiction-mints, without which not one of all the honourable courts in Westminster-hall would hold itself competent to go through its business. The note is as follows: the passage which it quotes is here inserted at second-hand, the original not being at present within reach.a
[* ]That, for the purpose of enforcing obedience to his own judicial orders, he ever has been so, and (subject always to eventual check from some still higher tribunal) ever ought to be, is most indisputable: hence the practice and propriety of attachment for contempt.
[† ]That on the propriety of this climax a judgment may be formed, let the following brief observations be considered:—
[* ]Observer, May 7, 1809—“May 6, 1809. In the court of King’s Bench, George Beaumont, the printer and publisher of a Sunday newspaper, was sentenced for a libel on the king to be imprisoned two years in Newgate, to pay a fine of £50, and find securities at the expiration of his imprisonment for five years—himself in £300, and two sureties in £200 each. Mr Justice Grose, previously to passing sentence, declared that, from the frequency of this offence, it became necessary to punish it with exemplary severity.” Two years is not more but less than three years: but in the two years case it was only the king that was libelled.
[* ]Finance Committee of 1798. Report, 27, p. 164-5.
[* ]See Ch. XI. § 2.
[* ]See Chap. X.
[* ]See above, Chap. VIII. p. 99—Speech of Mr. Justice Grose, in The King against Beaumont.
[† ]When, on any part of the field of law, the security of the subject is at its lowest, then it is that the delight with which it is contemplated by learned eyes is at its highest pitch.
[‡ ]Primus in orbe Deos fecit timor.
[* ]“Report of a trial at bar of the Hon. Mr. Justice Johnson, one of the justices of his Majesty’s Court of Common Pleas, in Ireland, for a libel, in the Court of King’s Bench, on Saturday the 23d day of November 1805. Taken in short-hand by T. Jenkins and C. Farquharson, London, 1806:”—being the same libel of the publication of which Mr. Cobbett had been convicted as above.
[* ]Conclude we now with the catechism—the Perceval catechism—already glanced at.
[* ]The title of it is—“An Account of some Alterations and Amendments attempted in the Duty and Office of Sheriff of the County of Middlesex and Sheriffs of the City of London, during the Sheriffalty of Sir Barnard Turner, and Thomas Skinner, Esq.—London: Printed by Stephen Clark, No. 15, Brokers Row, Moorfields, 1784.” No bookseller’s name.
[* ]For terms and years together.] Here we see the notice given of the permanence.
[* ]Connivance or direction of the judges.]—This, as already intimated, turns out to be a complete mis-statement: though, as already intimated, a very pardonable one. Attributable—not to the “direction” of the judges?—just possible;—not to their “connivance?”—not possible.
[† ]Negligence or indifference in the proper officers.] Another mis-statement; but alike pardonable. By the chief judge, to whose authority the master packer is subject, the system having been, according to the judge’s own declaration, contemplated by him during a period of twenty-four years, and at the end of that term openly defended, whether, on the part of this subordinate, the acting up to this system could have been the result of “negligence,” or altogether matter of “indifference,” might be left to any one to pronounce. But whatsoever might, at the time of this letter, viz. 4th April 1808, have been the state of the official mind in question, that it was not long before a state altogether opposite to that of indifference had place, is demonstrated by the fact just spoken of, viz. the restoration of this state of things, so shortly after the day when, at the instance of the author of this letter, it had been suspended.
[‡ ]The solicitor (of the crown) is permitted to interpose.] In relation to the incident here spoken of, I suspect some want of clearness, if not of correctness, in the information, on which this part of the statement, thus made by the sheriff, was grounded:—
[* ]Indifferently taken, and dictated by the officer of the court.] Consistently with the result, known to be produced—that result, to wit, the production of which is, as above, admitted and defended by the chief judge, viz. the “little variation,” and in effect the not much less than identity of the actually serving list, and thence the perfect identity of the select and secret list, the correct application of any such term as indifference does not, in any sense, appear practicable. Let it even be supposed that no crown solicitor ever takes any part in the business other than what the solicitor on the other side takes, here is still a package as completely effected by the master packer alone, as it could be by a legion of crown solicitors;—the jury—that body, the only supposed use of which is to serve as a check upon the judge, named on every occasion by the dependent of the judge.
[† ]The inclosed letter.] viz. the letter of the learned gentleman who dates from the Temple; whose “observations”—being, as we shall see, and without exception, pronounced by the Lord Chief Baron to be “perfectly just”—are, by that confirmation, adopted, and rendered part and parcel of his Lordship’s observations.
[* ]Mr.—’s observations were perfectly just.] These observations are those of the learned gentleman who dates from the Temple, as above: which observations have for their basis the opinion that the clause in question—viz. the clause having for its object the securing a constant change of jurymen—or, at any rate, the preventing the too frequent “returning to serve” the same juryman—“applies (to use his own words) to special as well as to common jurymen.” Such is the opinion with which the Lord Chief Baron declares his concurrence.
[* ]“If you think it worth while” to make any reform.] Of the letter thus alluded to, the words are—“If you should think it worth while to rectify the practice which has obtained” . . . . . . Here we see—alas!—a jeofail: a jeofail in the shape of a misrecital: an error large enough, had it been properly placed, to have given impunity to a murderer or an incendiary, and sent them out to commit fresh murders or light up fresh fires. An error? But to what cause shall it be imputed?—to laches in the clerk?—not it indeed:—to astutia, and welcome:—to laches?—presumptuous thought!—such weaknesses the law suffers not to be imputed to such clerks.—Some other cause must therefore be found for it:—but of this presently.
[* ]Never seen the least inconvenience.] As to the practices and results, in which his lordship’s good fortune in not seeing “any the least inconvenience,” is thus declared, they have already been brought to view.
[† ]Inconvenience . . . . . from . . . . distance.] On the subject of inconvenience in this shape, see the next Chapter.
[‡ ]To obtain . . . . attendance . . . . expedient to summon such as live near to London.] Expedient? Yes:—and that on two accounts. 1. Men fit for guinea-men are more plentiful near to London than at a distance. 2. For a guinea, with the chance, and that not a bad one, of earning several more guineas than one, not to speak of a good dinner, many a man would be content to come a mile or two, who would not be content to come “fifteen” miles;—the distance spoken of by his lordship immediately after as having been a subject of complaint. A mile or two a gentleman may come on foot; fifteen miles, unless it be for a wager, he will scarce ever come otherwise than with horse or carriage.
[∥ ]Otherwise . . . . little expectation of . . . . full special juries.] To the packing system, this fulness on the part of special juries is rendered material and subservient by more circumstances than one:—
[* ]Complaints . . . . of having been brought fifteen miles.] Of the comparative amount of this hardship, something has been said already (Part I. Chap. IV. § 5,) and something more may perhaps be to be said anon. At present, what seems to call for notice is—the service rendered to the packing system by the sort of oppression thus complained of, taking into the account the complaints that were the fruit of it.
[† ]Instructing jury after jury . . . exposes both parties, &c.] Symptoms of somnolency begin to discover themselves: and, on the part of the jurors or others, to whom the instruction is to be applied, if of this sort be the form in which it is to be administered, some danger there seems to be, lest the somnolency should be found contagious, and “the points” do as well as they can, without being “understood” at all.
[* ]Few verdicts from which I should have dissented, had I been one, &c.] Verdict and dissent? dissent, and, on the part of a supposed juryman, from a verdict? Strange and never-before-associated ideas! Alas! were these waking or sleeping thoughts? In what region of romance were the thoughts of his Lordship wandering, when in idea he heard a verdict pronounced by a jury, and himself a dissenting member of it? By what process were two phenomena, which in real life are so incompatible, brought together by his learned fancy? Speaking with respect—but, forasmuch as all this is but supposition, speaking out—was it that his Lordship was pleased to perjure himself? joining in one of those “perjuries” which Judge Blackstone has found so well associated with “piety,” and which the humanity of so many of his reverend brethren have so frequently, so frankly, and so successfully manifested?—was it then that thus in vision he was pleased to perjure himself, declaring assent by his lips while dissent was in his breast? or was it, that at the end of a certain number of days and nights of inanition, having fainted under the torture, he had thus by silence given opportunity to that verdict, to which his assent, expressed either by words or action, could not by any agonies have been extorted?
[† ]Favourable to the defendants.] Taking for granted, which I do sincerely and without difficulty, that the cases alluded to by his Lordship under the description of cases in which he “should have dissented from the verdict”—it being as above “favourable to the defendant”—were cases in which it was unjustly favourable, corruption by individuals has already been stated, in another place, (Part I. Chap. IV.) as an operation in which the effect in question may, with no slight appearance of probability, have had its cause.
[* ]Having seen no reason to complain.] For seen, ought we not rather to read felt? Felt? no: for complaining of a system so avowedly convenient, and so declaredly cherished, felt, we may well believe, no reason ever has been, by the reverend and learned judge. But seen . . . . . ? no; nor perhaps that neither: for when a man’s eyes are shut, what is there that he can see?
[† ]It must be left to your own discretion, whether you will risk.] Left to the sheriff’s own discretion? Yes, so it was: viz. to risk or not to risk: forasmuch as to that discretion that choice could not but be left. But when the discretion had been exercised, the choice made, and the risk incurred, the success of the measure risked, was it left in any such rash and irregular hands? Not it indeed: no, it found its way into regular and well-practised hands: well-practised, and well-instructed (it may well be believed) in the art of weighing practical and official inconvenience against speculative convenience. See Chap. IX. Transactions at the Remembrancer’s.
[‡ ]The making us better than well.] We are come at length to the grand instrument of defence, by which the scheme of the assailants of the packing system was finally to be blown up, and at the same time, by delicate and well-turned ridicule, covered with contempt: the well-pointed epigram, made out of the Italian epitaph, which, if a little of the stalest, was not the less fit for the purpose:—
Thus done into English by T. Sternhold and J. Hopkins:—
Ah, poor Sir Richard! Little did the good Archbishop, when some seven or eight-and-forty years ago, in the royal school at Westminster, he was delivering, to the furture Lord Chief Baron, the splendid and well-earned fourpence, think of the doom he was preparing for you! Ah, poor Sir Richard! Well—if slain you are, it has not been by an indelicate or ignoble hand.
[* ]Wilks against Eames Andrews, p. 52, Mich. 11 Geo. II. anno 1737. The court said, “that though it was not usual, before the said act, to grant special juries without consent, yet in some instances, and for special causes, it was, and might be done: . . . And Lord Chief Justice cited the King and Burridge, Pasch. Geo. [I.] 10, when upon search it was found that no special jury had been granted for thirty years then last past without consent; and the Lord Chief Justice Pratt was then of opinion, that the court might grant a special jury without consent, but the other judges differed;” i. e. were of opinion that the court could not grant a special jury without consent.
[* ]“The Duke of Portland . . . . informed me . . . . that your Lordship thought a change in Lord Castlereagh’s situation in the government desirable,—provided it . . . . could be reconciled to Lord Castlereagh’s feelings. The Duke of Portland . . . . told me that hopes were entertained . . . . of facilitating a general arrangement, in which a complete change in the war department might be effected consistently with Lord Castlereagh’s feelings.” See, in Cobbett’s Register, Dec. 2, 1809, the Letter of Mr. Ex-Secretary Canning to Earl Camden, Lord President of his Majesty’s Council, in which the conduct of a war on which the fate of the human species depends, is, for near six months together, viz. from 2d April to 20th September 1809, in the minds of the minister who writes this letter—the minister to whom this letter is written—and the other ministers in general, stated and shewn to have been a secondary consideration: the primary, and during that whole time the prevalent, consideration being the feelings of a single individual: that individual, a minister whose unfitness for such his employment had during all that time been recognised, viz. either by every one, or by almost every one of his colleagues:—and such colleagues!
[* ]Applies to special . . . . jurymen.] This is the clause forbidding the summoning and returning of over-served jurymen: this the passage which drew (as we have seen) from the Lord Chief Baron the avowed persuasion, that the Practice he had so long been pursuing, and was then defending, was a practice meant to be prohibited, and prohibited accordingly, by parliament. But that, in this persuasion, as well the learned judge, as the learned counsel whose observations he found so “perfectly just,” were perfectly mistaken, has, in the last preceding chapter, been shown at large.
[† ]If inconvenient for the latter to attend . . . . much more to the former.] Inconvenient to a guinea-fed juryman to attend oftener than the act requires! About as inconvenient as to this learned gentleman it is to have too many briefs. When the briefs crowd in too thick upon him, he returns the overplus: when the summonses crowd in too thick upon the guinea-man, he, the guineaman, obeys such as he finds it agreeable and convenient to obey, and neglects the rest.
[‡ ]Inconvenient . . . . it must be much more . . . . on account of rank.] What we have just been seeing, is a specimen of the sort of regard paid by the fraternity of lawyers to the convenience of gentlemen jurors—the class of jurors, whose convenience is entitled to regard:—let us now observe the sort of regard paid by the same learned fraternity to the convenience of common jurors—low people, whose convenience is entitled to........ to what? to any regard? To this one knows not exactly what to say:—either to none at all; or, if to any, to next to none.
[* ]Court . . . . would not suffer their process to be disputed.] No: that they would not; viz. if by any one it happened to be found “worth while” to bring the matter before them:—and at any rate, this was a very good advice.
[† ]Worth your while.] This is the passage which hit so exactly the taste of the Lord Chief Baron, and which accordingly, in the character of an argument ad hominem, he made use of, in the representation made by his lordship, as we have seen, to the sheriff, in hopes of engaging him to give up so romantic a scheme. Would you give execution, would you pay obedience, to an act of parliament?—think first whether it be worth while:—if it be not worth while, who ever (i. e. which of us ever?) thinks of paying obedience to an act of parliament?
[‡ ]To rectify the practice.] Rectify—as applied to practice—to the practice of judges—to his own practice—this was a word which has been seen to be—and indeed might without much expense of thought have been expected to prove—not altogether to the learned judge’s taste: accordingly, as we have seen—and for what reason we have seen—he slips in the word reform instead of it. For, under this name, though not so easily under the name of rectification, the proposed and dreaded correction might without reserve be slighted and discountenanced.
[* ]Apprize the master or remembrancer thereof.] In pursuance of this advice, the sheriff did “apprize the master or remembrancer thereof:” and in chapter the 9th, we shall see what he got by it. In giving to the sheriff this part of the advice, this learned friend of his was quizzing him; unless so it were that the learned gentleman, how well soever deserving to be, was not completely in the secret.
[† ]The opinion of the court would be obtained.] Yes:—and so would the expense of obtaining it: and moreover the disgrace and ridicule of presuming to endeavour to obtain it. To the sheriff, along with the expense, might have been obtained, perhaps, another epigram, still more pointed and quizzatorial than the Italian one. From any such “urbane” (for in the application of this attributive the sheriff cannot be accused of error) and polished bench—what would not indeed have been obtained is—any such attributive as that of the “greatest fool,” or that of the “weakest man,” that ever walked over earth without a keeper.
[‡ ]They would probably . . . . alter the practice.] Alter the practice indeed!—uncompelled by parliament, a court—an English law-court—or, uncompelled by the people, an English parliament—alter for the better its own practice! Yes: when without compulsion, the Mufti turns Christian; or the Pope, Protestant. The court alter its own practice! If for the better be meant, when was it ever known to do so? On the part of the learned author of this most learned advice, behold still the same pleasantry; or still the same simplicity and inscience.
[∥ ]Excused . . . . on producing a certificate.] Sage advice, still in the same style. Excused, you may perhaps be from attending to receive a guinea or several guineas—excused, on condition of producing a certificate, the endeavour to produce which might or might not succeed, and in case of success would produce, without the guinea, more trouble than the attendance.
[¶ ]This insertion of this word [not] seems to be a slip either of the pen or of the press. J. B.
[* ]The three letters.] These must evidently have been the three letters above reprinted, in so many preceding chapters: viz. 1. The letter dated from the Temple; 2. Sheriff Sir Richard Phillips to the Lord Chief Baron; 3. The Lord Chief Baron’s answer to the said Sir Richard Phillips.
[† ]Most clear that it did not originate in any jealousy, &c.] Here we see the first of the evidences above alluded to, by which the purity and simplicity of these learned eyes stand demonstrated. Not only are they (as we shall see presently) inaccessible to any suspicion-exciting ray capable of being emitted from any other source, but, when the tendency of an act of parliament might be to excite any sort of suspicion capable of pointing itself towards the higher powers, they are inaccessible to the very first words of the act.
[‡ ]“Between the parties,”]—Note of Sir Richard Phillips to these words:—“It should be observed, that the persons who serve on special juries rather desire the employment than to be relieved from it, as they receive a guinea for every cause; and it is not about causes between individuals on which there can be any ground of jealousy. So far are special jurymen from seeking to be relieved, that, owing to the advantages derived from serving on them, I have received, since I have been sheriff, more than a hundred applicationsfrom respectable persons, who, under a mistaken notion that it was in my power, have wished me to place them on what they called the special jury list.
[* ]Mr. * * * * is perfectly clear and correct in his observations.] Mr. * * * *; viz. the learned gentleman who dates from the Temple; and of whose learningwe have already made our profit: viz. in the last preceding chapter.
[† ]One circumstance . . . . must remove all suspicion.] Remove it?—from what place? Not surely from any one of these learned bosoms, the door of which, as against all suspicions pointing upwards, remains of course for ever closed;—not from any such seat of imperturbable tranquillity, forasmuch as what is never in a place can never be removed out of it—but from bosoms actually labouring under the green-eyed malady, such as the bosom of this troublesome and meddling sheriff. But let us see what this remedy is, which, being swallowed, ought to operate as a specific against suspicion: viz. in a constitution actually labouring under, or at least predisposed to, the species of green-sickness above mentioned.
[‡ ]Special juries are struck under an order of court only.]—Add, the court never knowing any thing about the matter. The order (as we have seen) a mere scrap of spoilt and wasted paper:—a mere pretence for fee-catching:—a pretence, and that a false one. (See Part I. Chap. VI.) Of gold, not of post, is the powder, by which the malady of suspicion is so regularly removed out of, or rather expelled from, learned bosoms and learned eyes.
[∥ ]Fault of defendant’s solicitor, if he does not obtain a respectable list.] Alas! what a smoke is here! But can so much as a puff be necessary to dispel it? Respectable? Yes: in one sense, at least, of any want of respectability there cannot be any fear; viz. of that sort of respectability which has office and guineas for its makers. Of that sort of respectability there is not among the candidates any absolute want, even before admission into the office: and this qualification, the guineas, if they did not find, would make. Here then is the respectability which not only does not stand in need of any exertion on the part of the defendant’s solicitor to obtain it, but which, spite of his utmost exertions to the contrary, will be sure to be obtained, and constantly obtained.
[* ]There is one reform, &c.] Reform? and from a bosom from which all suspicion that points upwards—all suspicion of the possibility of any need of reform—has been sentenced to be transported for life?
[† ]See note †, page 151.
[‡ ]With a view . . . . to . . . . their adding to that independence.] Receipt for adding to independence:—Solicit and solicit, till you have succeeded in getting into a situation of profit, out of which, without a moment’s warning, for anything or for nothing, you may be let drop at any time, without possibility of complaint, and without knowing why or wherefore.
[∥ ]Deeply concerned and interested in the guinea-trude.] Imprudence—treachery—telling tales out of school—such are the reflections, which by a man, of more warmth and learning than candour or reflection, might be apt to be cast upon the disclosure thus made by our learned adviser. Against a load of imputation, which, though to a first glance not altogether without colour, will on an impartial examination be seen to be not more serious than groundless, it would be ungenerous at least, if not unjust, to leave him altogether without defence. If of the appellation (guinea-man) and of the habits and dispositions which it imports, the existence were really notorious—notorious in any such degree as that in which he understood them so to be—on this supposition, to have kept them from the knowledge of a sheriff, and especially so active and inquisitive a sheriff, and one to whom, in less than a twelvemonth, the number of applications made for situations in this very corps amounted to above a hundred (Phillips. p. 173,) would have been altogether hopeless: while, by the frankness of the communication, all suspicion of wishing to throw a veil over the practice was, in the most promising at least, if not altogether effectual manner, obviated.
[* ]Likely to do wrong] The faith of this learned person in the virtue of an oath is truly edifying. Unsanctified by this principle of sanctification, the probity of these guinea-traders does unquestionably not appear to have been set by him at a very high rate: give them an oath to swallow, every impure property is, by this consecrated vehicle, carried off. Note, that the oath by which the swallower is rendered thus unlikely “to do wrong,” is the very oath which, as often as any difference of opinion has place among the elect twelve, is regularly productive of perjury—of perjury on the part of some portion of the number from one to eleven inclusive: I say of perjury; unless it be supposed, that, by that terror of inevitable and insupportable torture by which the will is subdued, the understanding is enlightened and converted; and that of him whose power of endurance is the weakest, the conviction and conversion is regularly and proportionably the most sincere. An oath “preservative against corruption!”—an oath composed of vague and unbinding generalities, such as those of which such effectual care has regularly been taken that it shall be composed!
[† ]Not as matters of profit.] The severity of the learned gentleman’s virtue has, upon this occasion, displayed itself in an opinion, which it is somewhat easier to admire than to understand. That a declaration, to the effect in question, should be incorporated into the purity-securing oath?—is that what he means to recommend? “I A. B. (for example) “do declare, that the guinea just received by me has been and is ‘received only in the way of compensation for actual expenses and loss of time, and not as a matter of profit. So help me God!” Or if duly construed and put into a tangible shape, would the proposed security be found to amount, for example, to something to this effect? viz. that on a motion, regularly made by some learned gentleman, opposable or unopposable by learned gentlemen on the other side, a rule should, if the court think fit, be with equal regularity made, ordering that “an account be taken by the master of the actual expenses incurred by each special juryman, viz. in the shape of chaise hire, and subsistence upon the road, as also of the compensation due to him for loss of time; with a direction to allow out of the guinea (being the greatest sum allowed by the act) no greater sum than shall be sufficient to cover such actual expenses, together with such due compensation as aforesaid:—costs of the application to await the master’s report.”
[* ]The Court of Session.
[† ]The Small-debt court.
[‡ ]Exactly as it stands, this paragraph was written on the 12th of July 1809: being some days before the sailing of the Walcheren expedition.
[∥ ]Delivered March 1807. Published by Constable and Co., Edinburgh; and Murray, London. “The loser . . . . (he is there made to observe) must be disobliged at the issue of every cause . . . . . The winner . . . . sometimes . . . . thinks his conquest dear bought . . . The lawyers . . . . were often irritated, that the court did not see with their eyes . . . . Hence the sallies of satire and of scandal . . . . And to these joint causes he was willing to ascribe much of the supposed clamour of the country . . . . and not to any material defect in our present system . . . .” Thus far the far-famed poet: whose modesty, when confessing himself “somewhat abstracted from professional pursuits,” (ib. p. 48,) could not save him from being selected by Lord Chancellor Eldon to carry the above avowed opinions into practice. Not any material defect in the system!—in a system to which alone the English system is indebted, for not being perhaps the most profligate system that ever was devised, for tormenting and pillaging men on pretence of justice!
[* ]On a certain day to this compiler unknown.] Unfortunately, as to this point the original memoirs have left us—in the dusk at least, if not in the dark. That the visit of the sheriff to the remembrancer’s office was antecedent to the date of his above-mentioned letter to the Lord Chief Baron, seems probable: for, though we are not expressly informed of its being so, yet as the mention made of it is antecedent to that made of the letter, such, in default of more positive information, it seems natural to conclude was the order of the facts. A circumstance, indeed, by which the force of the inference may perhaps be thought to be somewhat lessened, is—that almost immediately after comes an incident stated as subsequent to the month of July, whereas it was the month of April that closed, as well as opened, that epistolary correspondence. But the former hypothesis may perhaps be found to receive confirmation from another circumstance: viz. the symptoms of pliancy which, it will immediately be seen, were produced by, and at the time of, that visit—I mean the pliancy of that moment, when compared with the restored rigidity of later times.
[* ]“I attended,” says the sheriff, “at the office of the deputy remembrancer of the Exchequer with the freeholders’ book, and had previously provided myself with a list of persons who had served in causes at Nisi Prius within two terms. The deputy remembrancer recognised and admitted the force of the above recited clause, (4 Geo. II. c. 7, § 2,) and in striking two juries at that time was, to a certain extent, influenced by its principle.” Phillips, p. 158.
[† ]“I have since learned, however,” continues Sir Richard from the passage last quoted, “that no regard is paid to the provisions of this clause, and that the juries are still,” (on the 20th of September 1808, the day on which his publication bears date,) “struck nearly as heretofore. On examining the list of persons returned to serve on special juries in the Exchequer in the month of July, I have observed,” continues he, “the name of one person serve in nine causes, of two or three in eight causes, and of several in seven or six causes,” p. 159.
[* ]Words of the report of that part of Mr. Whitbread’s speech, as given in the Times newspaper of the 24th of April 1809:—“He thought it, for instance, a great hardship, that the master of the crown-office should have in his discretion the nomination of juries, by passing over the names of such persons summoned on the pannel as he thought fit, without calling them on their fines, upon the mere plea that they could not attend, and retaining such names as he thought fit.”
[* ]Mr. Whitbread, as per Times.] “Another practice he understood to prevail was—that special jurymen, who had been summoned over and over again, if ever they found a verdict against the crown, it somehow or other, happened, they were never summoned afterwards.
[* ]Simple dissipation abuse.—Mr. Whitbread, as per Times.] “Another practice he understood to be uniform with courts; namely, that the crown always paid to the officers double fees.”
[* ]Ever since 12th February 1793.
[† ]Turn to Palmer on Costs, pp. 175, 180. In a bill of costs, exhibited throughout in the character of a real bill—not a feigned exemplification of a bill—name of the cause, The King against W., scire facias in the Petty Bag (common-law side) in the Court of Chancery, may be seen a charge of £25 : 4s. This makes exactly the two guineas a-piece, stated as having been given to the special jury. Mr. Law (now Lord Ellenborough) is stated as having been one of the counsel in the cause: the others being Mr. Erskine (now Lord Erskine) Mr. Mingay, and Mr. Garrow. Mr. Law, as being of the special pleading class, may be seen to have been more frequently consulted with than any of those other learned persons. This bill of costs having, for the purpose of taxation, passed of course under the review of the master (the master packer,) here we see a particular example of the open contempt put upon the act above mentioned—(24 Geo. II. c. 18, § 2)—by which the giving or taking more than one guinea stands prohibited, as we have seen, in the most pointed terms. Of the individual instance of contempt thus accidentally laid open to view, the date is in the year 1785.
[‡ ]“Attorney-general . . . . First we have Sir Richard Phillips, who has given us evidence of his being either one of the greatest fools that ever lived under the sun, or that he is not to be credited on his oath. I say it appears from his own testimony, either that he has given us false evidence, or that he is the greatest fool that ever walked upon the face of the earth without a guide.
[* ]The following are the chief alterations made, and suggested from authority, on the practice of choosing special juries, since the work was published:—By 6 Geo. IV. c. 50 (22d June 1825,) the laws as to juries in England were consolidated, and the statutes enumerated in p. 76 3 Geo. II. c. 25; 4 Geo. II. c. 7; 6 Geo. II. c. 37; 24 Geo. II. c. 18; and 29 Geo. II. c. 19, repealed, so far as they concerned the subject. By § 31, every man described in the juror’s book as an esquire, or person of higher degree, or as a banker or merchant, is qualified and liable to serve as a special juror. All such persons are to be described in a separate alphabetical list subjoined to the jurors’ book, called “The Special Jurors’ List.” The names being numbered in their alphabetical order, the “numbers are to be written upon distinct pieces of parchment or card, being all as nearly as may be of equal size,” and deposited in a separate drawer or box. By § 32, when a special jury is struck, in the presence of the parties or their attorneys (if they choose to attend,) the slips containing the numbers are put into a box, and atter being shaken together, drawn out, one after another, to the number of 48, the name attached to the corresponding number in the special jurors’ list being read aloud as each number is drawn. If, on the reading of a name, either party or his attorney object that the man is incapacitated, on proof, he will be set aside, and another drawn in his place. If the whole number of 48 cannot be supplied from the special jurors’ list, the general jurors’ book is to be resorted to as formerly. Parties are supplied with a list of the 48 names, with the respective places of abode, and additions, and are allowed to strike off twelve names each as formerly, the remaining 24 being returned upon the pannel. By § 33, parties may consent to the nomination of a jury in the manner formerly in use.
[* ]Eightpence, for example, was the allowance given to a juryman, as long ago as in the reign of James I. (see Part I. Chap. IV. § 1,) and we know not for what length of time before. Give him eightpence at this time of day, the allowance, besides being in name the same, may be a more or less proper one, but in effect so far from being the same, it is a very widely different one. And so, as often as money is concerned, and on whatsoever occasion and for whatsoever purpose mentioned—take, for example, qualifications for parliamentary electors.
[* ]The line of distinction being, in present as well as in all past times, so extensively as well as decidedly drawn—drawn in name as well as in correspondent practice—no objection can surely be raised against it, on any such ground as that of a tendency to keep alive and foment invidious distinctions. In these our fortunate islands, the yeoman of to-day being the future contingent gentleman of to-morrow, no such heartburnings have place between them, as in those countries in which a vast and unvarying gulph has place betwixt the two classes.
[† ]Half-and-half.] De medictate status, is the learned denomination, but for my part I prefer this English one: and this although it be, or rather because it is, so vulgar an one. In every part of the field of law, the interest, and thence necessarily the endeavour of all lawyers, has been to render the rule of action not only as uncognascible but as unintelligible as possible. Of every friend to mankind, the endeavour, it scarce need be said, will be the reverse. As to the science of jurisprudence, and the art of legislation, for teaching and learning these accomplishments, the aid of this foreign and extinct language may here and there perhaps be necessary: and necessity, so far as it exists, may, but nothing short of necessity ever can, justify any such use of it.
[* ]Where the length either of journeys or of demurrage is anything considerable, paying a juryman by the cause, neither could then be, nor ever can be, anything better than a very unequal plan of payment. For since it would commonly, if not always, happen, that the same juryman would have to serve in divers causes, therefore when, in the instance of any such occasional judge, the number of causes in which he served happened to be above the calculation (viz. the calculated number, in the expectation of which the fixation of the sum in question took its rise) he might be to a considerable amount a gainer: when below that mark, to a considerable amount a loser. Here then was a sort of lottery: but in respect of the balance in point of comfort, all such lotteries are disadvantageous upon the whole.
[* ]If human reason had been in use to apply itself to the subject of judicial procedure in general, and to jury-trial, considered as a part of it in particular, the multitude of persons subjected to vexation in this shape would never have been, for all causes without distinction, fixed at so large a number as twelve. But this is among the subjects to which as yet human reason has not been in use to apply itself: among non-lawyers, scarce any person, in point of intellectual acquirements, competent, in any degree, to the task, having found and felt in his bosom a particular interest, strong enough to call forth the application of them to the subject: and as to lawyers, acting all along under the impulse of a professional interest opposite in almost every point to that of the public in general, the disposition to endure inconveniences in all shapes without remedy, not the disposition to be on the out-look for remedies, is the disposition which, on all causes, it has been their study to keep up, and inculcate.
[† ]From the aggregate number of lawsuits which receive their decision in the course of a given length of time, the aggregate body of nonlitigants, in proportion as those decisions are, or are supposed to be, conformable to justice, derive gratis that security, which the aggregate body of litigants in those same suits do not enjoy but at the charge of the aggregate mass of vexation and expense attached to those several suits. (See Protest against Law Taxes.)
[* ]On the subject of what is called unanimity, my opinions have, in this very work, been already too plainly and strongly expressed to need repetition here. But the mention here made of so important a topic having been but incidental, I have not included it in form in the list of the changes here proposed. The subject being as yet far from exhausted, to do complete justice would require, as by its importance it would well warrant, a separate publication.
[* ]Viz. by 3 Geo. II. c. 25, § 8.
[* ]Fifteen hundred pounds I have heard mentioned as being, in one instance that happened not very long ago, the sum at the expense of which a verdict was obtained. According to the report, it was a case of life and death: the cause being an indictment for murder, and the money given by the defendant. The fact was mentioned to me as one that had become in a considerable degree notorious; but, having no means of forming any opinion concerning the truth of it, I forbear mentioning any further particulars, lest, the story being false, suspicion should by this means come to attach itself to this or that individual, in whose instance it would be injurious.
[* ]By 6 Geo. IV. c. 22 (20th May 1825,) the persons qualified as jurymen are summoned by the sheriff in rotation, and from them the individuals to serve on each trial are selected by ballot.—Ed.
[* ]Part II. Ch. V.
[† ]1 W. & M. sess. 2, c. 2.
[* ]Phillips, pp. 62 to 68.
[* ]See Scotch Reform, Letter I.
[† ]Incomprehensible as this pertinacity may appear on the face of it, the root of it may, I have been led to think, be traced to certain extortions that, so long ago as in the year 1777, were brought to light by Howard. The principal passages, extracted from his “State of the Prisons, &c.” 3d edition, anno 1784, pp. 15 and 16, are here subjoined. Between the extortions of that day as exhibited by Howard, and one of the oppressions of the present day as exhibited by Sir Richard Phillips, evidence of connexion having been observed, the display of it was at one time destined to form part of the present work: but the length of it being found altogether disproportionate, it has been necessarily discarded for the present, though on some future occasion it may perhpas find its place.
[* ]Instead of general utility, antipathy the ground of punishment—intensity of the antipathy the measure of punishment, retrospective, the application of it.
[* ]Hawkins, P. C. Vol. I. B. I. Ch. 31, § 60.
[* ]Ignorantia legis excusat neminem.
[* ]Finance Committee, anno 1808, Report 3.
[† ]Vide supra, p. 55.
[‡ ]See Part I. Chap. IX.
[* ]See Blackstone’s Commentaries, I. Ch. II. p. 152.
[† ]Ibid. “In the reign of King George I. a bill passed the House of Lords, and was countenanced by the then ministry, for limiting the number of the peerage.”
[‡ ][Right-hand man of the judge.] In the King’s Bench two masters: one on the crown side, the other on the civil side: in the Common Pleas two prothonotaries:a in one branch of the Exchequer, a deputy-remembrancer: in another, a deputy-clerk of the Pleas, called also the master. For, in the judicial chaos, as all manner of different things go by the same name, so does the same thing go by all manner of different names.
[* ]Since the matter of the text was transmitted to the printers, accident has thrown in my way a pamphlet, bearing date in 1794, and entitled, “A Vindication of the Conduct and Principles of the Printer of the Newark Herald. . . . . . by Daniel Holt, Printer of the Newark Herald.” In page 19, I read, in form of a note, a piece of history, which presents itself as not altogether inapposite to the present purpose. To any one, by whom any degree of credence is given to the statements contained in it, it will serve to prove two things: 1. That at the time in question, viz. anno 1777, no guinea corps had, for King’s Bench service, received as yet any such organization, as we have seen, and shall see again and again, a corps of that description and character to have received for Exchequer service: 2. That though in the King’s Bench, and for King’s Bench service, no such regular corps had been as yet put upon the establishment, a strong sense of the need which the service had of such a corps was entertained, and that honourable court had accordingly found extra work for one of those fiction-mints, without which not one of all the honourable courts in Westminster-hall would hold itself competent to go through its business. The note is as follows: the passage which it quotes is here inserted at second-hand, the original not being at present within reach.a
[† ]That on the propriety of this climax a judgment may be formed, let the following brief observations be considered:—
[‡ ]The solicitor (of the crown) is permitted to interpose.] In relation to the incident here spoken of, I suspect some want of clearness, if not of correctness, in the information, on which this part of the statement, thus made by the sheriff, was grounded:—
[* ]Wilks against Eames Andrews, p. 52, Mich. 11 Geo. II. anno 1737. The court said, “that though it was not usual, before the said act, to grant special juries without consent, yet in some instances, and for special causes, it was, and might be done: . . . And Lord Chief Justice cited the King and Burridge, Pasch. Geo. [I.] 10, when upon search it was found that no special jury had been granted for thirty years then last past without consent; and the Lord Chief Justice Pratt was then of opinion, that the court might grant a special jury without consent, but the other judges differed;” i. e. were of opinion that the court could not grant a special jury without consent.
[* ]There is one reform, &c.] Reform? and from a bosom from which all suspicion that points upwards—all suspicion of the possibility of any need of reform—has been sentenced to be transported for life?
[† ]Incomprehensible as this pertinacity may appear on the face of it, the root of it may, I have been led to think, be traced to certain extortions that, so long ago as in the year 1777, were brought to light by Howard. The principal passages, extracted from his “State of the Prisons, &c.” 3d edition, anno 1784, pp. 15 and 16, are here subjoined. Between the extortions of that day as exhibited by Howard, and one of the oppressions of the present day as exhibited by Sir Richard Phillips, evidence of connexion having been observed, the display of it was at one time destined to form part of the present work: but the length of it being found altogether disproportionate, it has been necessarily discarded for the present, though on some future occasion it may perhpas find its place.
[a ]The following note occurs at Chap. 8 of the original edition:—“I embrace this opportunity of correcting a mis-statement, the cause of which lies, in some measure, in my present inability to supervise the press: a mis-statement which, though with reference to the argument altogether an immaterial one, might perplex the reader by the inconsistency it presents, if not set right. When, with allusion to the sort of business done by Talleyrand under Napoleon, I designated these master packers by the appellation of grand electors, and with the number six before them, (see p. 79,) it was in pursuance of a false recollection, which, at that time, represented the number of prothonotaries as no more than two.”
[a ]Collated with original, St. Tr. xx. 687.—Ed.
[a ]By 12 & 13 W. III. c. 2, § 3, judges are only removable on the address of both Houses.—Ed.
[a ]1. For the King’s Bench, civil office, see Tidd and Crompton by Sellon.2. For the King’s Bench, crown office, see Hands.3. For the Common Pleas, master packers, the two prothonotaries.4. For the Exchequer, plea office, master packer, the clerk of the pleas—see Edmunds.5. For the Exchequer, remembrancer’s office, master packer, the deputy remembrancer, there is no book of practice as yet extant: but that in the respect in question, the practice of this office agrees with that of the four other offices, may be well inferred by analogy, and is in substance affirmed, as will presently appear by the learned gentleman who dates from Lincoln’s Inn.
[a ]“Rex v. Hart, Esq. Cowp. 412. Friday, Feb. 9, 1776.“Mr. Davenport moved for directions to the master to strike out twenty-four of the special jury ex parte, in case the defendant and his agent should omit to attend the master’s appointment. The motion was founded on an affidavit of three appointments having been made, and their declining to strike out till a day should be appointed for the trial. . . .“Lord Mansfield was clear the master might do it without any direction from the court; and declined giving him any in particular, but had no doubt he might do it now just as if he had proceeded last term; . . . .”
[† ]“Power of the sheriff.”] Note of Sir Richard Phillips to these words:—“This is not in the power of the sheriff, who is forbidden to make any alteration in the returns, under a heavy penalty. “R. P.”
[a ]“The clerks of assize give to the judge large sums for their places. One of the present gentlemen gave for his place £2,500. On many accounts, these places ought not to be bought of the judges. If they were only presented, the fees might be much lower.”