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CHAPTER I.: OCCASION OF THIS WORK. - 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.