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CHAPTER VI.: PURPOSES TO WHICH INFLUENCE ON JURIES MAY BE MADE SUBSERVIENT. - 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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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.
[* ]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.