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• Scotch Reform; Considered With Reference to the Plan Proposed In the Late Parliament, For the Regulation of the Courts and the Administration of Justice In Scotland: With Illustrations From English Non-reform: In the Course of Which, Divers Imperfectio
• Advertisement.
• Letters to Lord Grenville, On the Proposed Reform In the Administration of Civil Justice In Scotland.
• Letter I.
• Letter II.: Proposed Division of the Court of Session.
• Letter III.: Proposed System of Pleading.
• Letter IV.: Proposed Trial By Jury.
• Letter V.: On the Bill Called Lord Eldon’s.
• Summary View of the Plan of a Judicatory, Under the Name of the Court of Lords’ Delegates, Proposed For the Exercise of Those Judicial Functions, the Adequate Discharge of Which By the Whole House Has, For These Six Or Seven Years, Been Rendered Confe
• The Elements of the Art of Packing, As Applied to Special Juries, Particularly In Cases of Libel Law.
• Advertisement to the First Edition.
• Part I.
• Chapter I.: Occasion of This Work.
• Chapter II.: Juries—their Use As a Check to Judges.
• Chapter III.: The Check How Done Away By Influence.
• Chapter IV.: Special Juries, a Special Engine of Corruption.
• Chapter V.: Jury Unanimity Increases the Corruption.
• Chapter VI.: Purposes to Which Influence On Juries May Be Made Subservient.
• Chapter VII.: Chief Purpose, Crushing the Liberty of the Press.
• Chapter VIII.: The Exchequer Packing Office Suffices.
• Chapter IX.: Instruments For Crushing the Liberty of the Press.
• Chapter X.: Want of Adequate Obsequiousness Morally Impossible.
• Chapter XI.: Such Juries Worse Than None.
• Part II.: State of the Packing System, Anno 1808.
• Chapter I.: Introduction—two Reforming Shrievalties.
• Chapter II.: The Sheriff to the Lord Chief Baron—notices.
• Chapter III.: Lord Chief Baron to Sheriff Sir Richard Phillips—avowries and Defences.
• Chapter IV.: Observations On the Lord Chief Baron’s Defences.
• Chapter V.: Special Jury Corruption—devices By Which It Was Protected.
• Chapter VI.: Learned Advice From the Temple.
• Chapter VII.: Advice From Lincoln’s-inn.
• Chapter VIII.: Maxims Concerning Reform, Deduced From the Above Letter.
• Chapter IX.: Transactions At the Remembrancer’s.
• Part III.: State of the Packing System, Anno 1809.
• Chapter I.: Commons’ Debate, 24 Th April 1809. Packing and Cutting.
• Chapter II.: Double-fee Abuse, Plain and Embroidered.
• Part IV.—: Remedies Proposed. *
• Chapter I.: Humble Proposal For Restoring the Constitution In Regard to Juries.
• Chapter II.: State of Jury Package In Scotland.
• Chapter III.: Humble Proposal For Restoring the Authority of Parliament.
• “swear Not At All:” Containing an Exposure of the Needlessness and Mischievousness, As Well As Anti-christianity of the Ceremony of an Oath: a View of the Parliamentary Recognition of Its Needlessness, Implied In the Practice of Both Houses; a
• Advertisement.
• Editor’s Note
• Swear Not At All. Mat. V. 34.
• Section 1.: Oath. Incongruity of the Assumption, On Which Its Supposed Beneficial Efficiency Is Grounded.
• Section 2.: Mischievousness of This Instrument Considered In a General Point of View.
• Section 3.: Its Inefficiency In the Character of a Security Against Deceptious Incorrectness and Incompleteness In Evidence.
• Section 4.: Recognition of Its Inutility By Lords and Commons.
• Section 5.: Mischiefs —1. Contributing to the Mendacity-licence Granted By Judges.
• Section 6.: Mischief 2— Weakening In Various Ways the Efficiency of the Laws.
• Section 7.: Mischief 3— Bewildering and Enslaving the Consciences of Jurymen.
• Section 8.: Mischief 4— Giving Aid and Force to the Enterprises of Malefactors.
• Section 9.: Mischief 5— Furnishing Pretence For Misrule By Abuse of Prerogative.
• Section 10.: Misrule, How to Perpetuate—coronation Oaths Amended.
• Section 11.: Mischief 6— Corrupting the National Morals and Understanding—oxford University Oaths.
• Section 12.: Mischief 6 Continued. —ii. Cambridge Oaths.
• Section 13.: Practice of Receiving Judicial Oaths, Its Repugnancy to the Precepts of Jesus.
• Section 14.: Succedanea—true Securities Substitutible to This False One.
• Section 15.: Cause and Origin of the Practice In Regard to Oaths.
• Appendix.
• Truth Versus Ashhurst; Or, Law As It Is, Contrasted With What It Is Said to Be.
• The King Against Edmonds and Others: Set Down For Trial, At Warwick, On the 29 Th of March 1820.
• The King Against Sir Charles Wolseley, Baronet, and Joseph Harrison, Schoolmaster, Set Down For Trial, At Chester, On the 4 Th of April 1820.
• Official Aptitude Maximized; Expense Minimized: As Shown In the Several Papers Comprised In This Volume.
• Paper I.—
• Paper II.—: Introductory View, &c.
• Paper III.—: Extract From the Proposed Constitutional Code; Entitled, Official Aptitude Maximized—expense Minimized. By Jeremy Bentham, Esq. Bencher of Lincoln’s Inn.
• Paper IV.—: Supplement to the Above Extract.
• Paper V.—: Defence of Economy Against the Right Honourable Edmund Burke.
• Paper VI.—: Defence of Economy Against the Right Honourable George Rose.
• Paper VII.: Observations On Mr. Secretary Peel’s House of Commons Speech, 21 St March 1825, Introducing His Police Magistrates’ Salary Raising Bill, ( Date of Order For Printing, 24 Th March 1825.)
• Paper VIII.: Indications Respecting Lord Eldon, Including History of the Pending Judges’-salary-raising Measure.
• Paper IX.—: On the Militia.
• Paper X.: On Public Account Keeping.
• Paper XI.: Constitutional Code—table of Contents As Shown By Titles of Chapter and Sections.
• Commentary On Mr. Humphreys’ Real Property Code, By Jeremy Bentham. From the Westminster Review, No. XII., For October 1826.
• *∗* the Following Note Was Prefixed to the Article By the Editor of the Westminster Review: —
• Commentary On Humphreys’ Real Property Code.
• I.: Deed of Sale.
• II.: Deed of Mortgage. 1
• III.: Marriage Settlement Deed.
• Outline of a Plan of a General Register of Real Property: Contained In a Communication to the Commissioners Appointed Under Letters Patent, of Date the 6 Th June 1828, to Inquire Into the Law of England Respecting Real Property, and First Printed I
• Justice and Codification Petitions: Being Forms Proposed For Signature By All Persons Whose Desire It Is to See Justice No Longer Sold, Delayed, Or Denied: and to Obtain a Possibility of That Knowledge of the Law, In Proportion to the Want of Which T
• Justice and Codification Petitions.
• Advertisement.
• Preliminary Explanations Necessary to Be First Read.
• Petition For Justice.
• Abridged Petition For Justice.
• More Abridged Petition For Justice.
• Supplement, Which May Be Added Or Not to Any One of the Three Or Any Other Proposed Petition.
• Petition For Codification.
• Lord Brougham Displayed: Including I. Boa Constrictor, Alias Helluo Curiarum; II. Observations On the Bankruptcy Court Bill, Now Ripened Into an Act; III. Extracts From Proposed Constitutional Code.

CHAPTER IV.

SPECIAL JURIES, A SPECIAL ENGINE OF CORRUPTION.

§ 1.

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.*

§ 2.

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.

§ 3.

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.

§ 4.

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.”

§ 5.

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.*

§ 6.

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.*

[* ]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.

In that book, no such appellation occurs as that of a special jury, p. 141. Eightpence a-head being stated as the fee allowed to the jurors at Nisi Prins, in Guildhall, London; fourpence a-head is stated as the fee given to those to whom, in case of a deficiency in the number of regular jurors returned in the writ called the Habeas Corpora Juratorum, it happens to be added to them, in the character of tales-men: at length tales de circumstantibus.

At present, the denomination of tales-men is applied to such common jurors, as are employed to fill up casual deficiencies in the number of special jurors: but, at that time, they were but so many men taken (as their name imports) from the by-standers, to fill up the like deficiencies in the number of commen jurors. On this occasion mention may be seen made of an important office, viz. that of “[Editor: illegible word] Lord’s Foot-Cloth Servant:” who of course would not be left unprovided with his fee. And what would any one imagine was that fee? Answer—Half as much again as that of a regular juryman; thriceas much as that of a tales-man. For the purpose of tracing out the first mention made of special juries, it would be matter of curiosity at least, to examine the intermediate books of practice between 1623 and 1730.

[† ]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.

[† ]Ibid.

[‡ ]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.

If the office be thus capable of serving as an intelligence office in the case of country gentlemen, whose residence is in Cornwall or in Cumberland, how much more complete may not the information be expected to be when the subjects of it are guinea-men, all living in, or in the near vicinity of, the aggregate metropolis?

[∥ ]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 †

[In the orginal edition, the “Common Pleas” having been accidentally omitted, the number was made “six.” See p. 77, sub-notea]

[‡ ]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.

Speaking (p. 175) of “persons who from low situations in life have crept into a little independence, and by artifice and collusion with the inferior officers, get their names placed upon the freeholders’ list with the proper additions, . . . . I know several (says he) of this description who are ludicrously described as being deeply concerned and interested in the Guinea trade.” . . . . Letter, dated from Lincoln’s Inn, September 1808, to Sheriff Sir Richard Phillips, printed in his Letter to the Livery of London on the duties of Sheriffs: London, 1808, 2d edition, p. 175. See the Letter at length in Part II. Chap. 7, of this work.

[§ ]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.

[* ]Salkeld.

[† ]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?

When the class or rank in society, to which a man belongs, is to a certain degree inferior, his interest has either no claim to any degree of consideration, or, if to any, to none but a proportionably inferior degree of consideration: when his rank in society rises to a certain level, his claim to have his interest taken, to this or that effect, for an object of consideration, rises along with it. Such is the maxim which, from the earliest times down to the present inclusive, has, though seldom very explicitly avowed, been not the less steadily and extensively acted upon and approved.

A collection of the instances, in which this maxim has received its application, would be no uninteresting article; no unfit object, one of these days, for the industry of a committee. In the statute book they might be found in deplorable abundance. The present instance may serve for one. Of the extra aptitude looked out for, as above, the only criterion employed was extra opulence. To leave without compensation for this burthen that great mass of qualified persons, who, in comparison, were least able to bear it, was no injustice: to leave without compensation men selected for their extra opulence, distinguished by no other mark than that opulence, and thence by their superior ability to bear the burthen, would have been an intolerable injustice. To common jurymen, accordingly, the compensation has never been given: it has been confined to special jurors.

Whatsoever may have been the cause (for it remains involved in darkness) such had been the liberality which on these occasions had come to exercise itself, that, in the declared opinion of parliament, it was become necessary to set limits to it:—“Whereas great complaints,” says the statute (24 Geo. II. c. 18, § 2) “are frequently made of the great and extravagant fees paid to jurymen returned under the authority of the said recited acts.” Limits were accordingly set to it by the designation of a fixed sum, viz. a guinea, which it should not be lawful to exceed.

So long ago as the year 1623, 8d. per cause, the same in town and country, was the fee (as we have seen) that used to be given to each juryman, before the distinction between special and common had come into existence. How long the fee had stood at that amount, at that time, does not appear. At that amount it stands at this day in the case of common jurors. Gentlemen and squires found gentlemen and squires to take care of them, as well as judges (See Part III. ch. 3) to sympathize with them. Farmers, shopkeepers, and master handicrafts, found no such friends.

[* ]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.

Thus much, however, seems scarcely to be open to dispute; viz. that this same select and secret qualified list is a sort of sink, a county sink, a common sewer, into which whatsoever human matter, if any such there be, “is rotten in the state of Middlesex”—whatsoever human matter, endowed with the requisite pecuniary qualification, is, in the scantiest degree, provided with any such qualifications as those of probity and capacity, has a natural tendency to gravitate. Far be it from me to assert—for sure I am, it does not happen to myself to know, that in that whole list so much as a single person deficient in either of those respects would be to be found: all I mean to say is, that if any such person or persons do exist—if, in the whole qualified list, any such peccant matter have existence, the select and secret list, if any such there be, cannot but, of all places, be the properest place to look for it. For in the character of an adequate substitute to all other requisites, stands this one, viz. obsequiousness: obsequiousness, experienced or presumable. But to make proof either of this, or of any other qualification, to no one of them, unless it be the foreman, can it ever be necessary, so much as to open his lips: no, nor to give any sign of life, other than an assenting nod. Neither by improbity in any shape, so long as it be not to a certain degree notorious, nor by incapacity, so long as no commission of lunacy has as yet been issued, can any bar be opposed to admission upon this list: no, nor so much as to the blameless discharge of the functions of the office. And hence it is, that the office, such as it is, has become to the degree that has been seen (p. 79. note ∥) even though it be not a sinecure, a natural object of intrigue; nor that above the reach of characters, in every respect, so their worthlessness be not notorious, the most worthless. What more promising instrument can power wish for when placed in weak or wicked hands? To the case of country causes, so much of the mischief of this institution as is confined to the anti-constitutional abuse has comparatively but little application. The great theatre in the metropolis enjoys almost a monopoly of the political libel law causes.

[* ]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.

1. To “the master,” (meaning the master packer) for packing, £2 : 2s.

N. B. The “master,” is the deputy-clerk of the pleas, called master in current language. The deputy: for, on this side of the court the principal, the clerk of the pleas has no more to do with this or any other part of the business, than the other principal master packer, the remembrancer, has on the other.

From this and other sources, anno 1797, the principal clerk of the pleas (appointed by the Chancellor of the Exchequer to prevent justice from being sold in that office too cheap) pocketed £318 : 12s : 6 a-year for doing nothing: his deputy (appointed by the principal) £318 a-year, for doing what was done; 27th Finance Report, anno 1798. To a barrister for pretending to have moved for a special jury, 10s. 6d.

N. B. Moved, i. e. applied to the court for a rule, ordering that there shall be a special jury, and by the act of signing his name expressing the assurance of his having made such application: whereas, in truth, except the signing of this false certificate, nothing has been done by him, the rule being made out by an officer, fee of course received for it, under the judicatory, without the cognizance of the judicatory, or any one of its members. (See Scotch Reform, Letter I. Devices.) For their parts, in this operation of obtaining money on false pretences, the clerk in court, and the solicitor, between them, (the judge, where needful, lending of course his power) extract (extort would not be the proper word, extortion being a punishable crime) 4s. 10d.; whereof 2s. 8d. to the clerk in court, 2s. 2d. to the solicitor.

The form in which their part of the system of false pretences is expressed, is in these words:—“Drawing a brief, and making a fair copy thereof to move for a special jury,” so much:—“Paid a fee to counsel to move same,” (true) so much: “And attending him,” (true) “and the court” (not true) “for that purpose,” so much.

Paid (says one item) to the under-sheriff’s agent, attending with freeholders’ book, £2 : 2s.—Two guineas to a man for pretending to hold a book—a book consisting of 400 lines, each containing a man’s name and abode! Instead of plunder, suppose justice to have been the object, what would have been the course? A paper with the names on it kept hanging up in the office: on any change made in the list, notice of the change, or else a fresh paper, sent by the post. Two guineas per cause, multiplied by 200, the number of special jury causes in a year in this county, (Phillips, p. 159), makes, on this score alone, £420 a-year, pocketed by the under-sheriff for doing nothing.

To Judge and Co. (the attorney part of the partnership included) total profit made up in this way appears, upon casting up, to be £7 : 8 : 8. But this is the minimum rate, exclusive of casualties: and, in a country cause, the profit of the country attorney is not included in it: this over and above the other expenses, which equally have place whether the jury be a special or common one: and to this account remains to be added as expense to the individual suitor in a cause between A. and B., to the public, in a political libel cause, the twelve guineas given, at a guinea a-piece, to the special jurors.

[‡ ][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.

[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.”