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PART I. - 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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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?
[* ]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.
[‡ ][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:—
[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.