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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 VIII.

THE EXCHEQUER PACKING OFFICE SUFFICES.

Keeping the liberty of the press, as it were, in a state of constant annihilation (if the expression may be allowed,) being thus, among persons “in high situation,” in these days of unexampled purity, the common object—the one, and almost the only one, in the attachment to which the agreement is among them constant and almost universal—come we now to the convenience afforded by the chief jury-packing office for so necessary an operation.

By the chief jury-packing office I mean, on this occasion, that one of the seven which has for its master packer the deputy-remembrancer of the Exchequer. To this distinction the title of that office is rendered incontestible by two considerations:—1. The permanence, and thence the operations of which it is the result, are, in the instance of that office, avowed by the judge, and defended by him upon principle; 2. The number of juries thus nominated in that office is equal to little less than that of all the juries nominated in like manner in all the other offices put together.

The proposition to be proved is—that though the Exchequer—the judicatory to which this office belongs, is not itself the judicatory in which the operation of crushing the liberty of the press is carried on, yet, for the purpose of that operation, the system of package, and the collection of permanent special jurymen which compose the produce of that system, are no less effectually sufficient, than if the scene of the chief part of the jurypacking business were an office immediately under the judicatory in which the business of crushing the liberty of the press is carried on.

On this head little remains but to recapitulate. Here may be seen the grand house of call for guinea-men: here the receiving-house in which the recruits are enlisted: here the parade on which they are drilled: here the grand muster-roll—the select and secret qualified list—on which they are entered: here the register-office, in which their “connexions,” &c., and thence their qualifications, are registered, and accordingly inquired after by all lips to which the information can be of use.

But why (it may still be said) lay so much emphasis on the Exchequer? If the Exchequer has its two master packers, has not the King’s Bench as many?

Yes: but in the Exchequer, the permanence, which but for actual packing could not have place, is, as hath just been mentioned, irrevocably confessed, or rather professed: in the King’s Bench, no such avowal can be produced. It is in the Exchequer alone that the main body of this corps being in constant service, it is there and there alone that, with certainty, and without effort, the trust-worthiness—the degree of discipline—of each member is known to the whole staff.†

To this office, therefore, it is, that in case of need (when a libeller, for example, is to be punished for calling a man, in “high situation” by his father’s title, or for questioning his fitness for his office,) a solicitor to the crown would send his order—saying, “Pick me out a good dozen for King’s Bench service.”

“Oh—but all this—so far, at least, as concerns King’s Bench, and libel law—is but mere surmise; the work of audacious imagination. In the Exchequer, be it as you say: but in the King’s Bench no such packing can be proved; no such purposed selection ever yet took place. There, at least, all is simplicity; there, all is purity.”

Thus far my objector. But, could even any such negative be demonstrated, still the reasons for the pulling down of all jurypacking offices—for the complete abolition of the guinea trade—for the disbanding of this standing army—this noble army, not of martyrs but of martyrizers—would not lose any thing of their force. Down to this day nothing of the kind has been done. Be it so: but why? Because down to this day nothing of the kind has been necessary. Come tomorrow, and the necessity may come along with it: and so sure as the necessity of the practice comes, so sure the practice comes along with it.

Convenience—slight convenience—has long since sufficed to establish the practice in one judicatory, the Exchequer: and the united forces of self-preservation and vengeance, will they not, in case of need, suffice to establish the same practice in the King’s Bench?

In the King’s Bench, as well as in the Exchequer, the officer, whose practice is thus open to suspicion, actually exists: by him the selection is actually made—made in every individual instance: by him, whether he will or no, a certain quantity of information, relative to the characters and dispositions of the individuals, out of whom he has to choose, is possessed. Thus much is matter of notoriety: and the only proposition, liable to be made a question of, is—whether, in the view of gaining additional information, it be likely that, in case of need, he or those whose interest in the business is more immediate—for example, in a state libel case the solicitor of the crown—will seek for it at the hands of the correspondent officer of that other court, in which the opportunities of obtaining that sort of information are more abundant.

To such a question, can there be any other answer than this? If, of the sort of information in question, there be, in the judgment of those whose interest it is that the judgment be correct, a deficiency in the King’s Bench, to that other court, and that office in it which is best able to supply the deficiency, application will accordingly be made. If no such deficiency, then no such application.

But, if in the King’s Bench there be no such deficiency, then so it is that, in the King’s Bench, the mischief in question exists already in its full force.

In a cause in the Exchequer, inquiry at the hands of the officer by whom those jurors are selected, it is in the books of practice stated (we have seen) as being, on the part of the solicitor on each side, a matter of duty, regularly recurring, and regularly fulfilled. That which, in the Exchequer, it is matter of duty to the solicitor to be inquisitive about, can it, in the King’s Bench, be matter of duty to him not to know?

In the Exchequer, the permanence being, by the chief judge, avowed and justified, the selection—in a word, the packing—without which the permanence could not have been established—is thereby avowed and justified along with it. Of the matter of justification which, in the judgment of the chief judge, is, in the Exchequer, so conclusive, is it credible that there should be any deficiency—and in a case of libel law too—in the King’s Bench?

To confound social order—to destroy the characters of all public men—to defame the justice of the country—to bring government itself into hatred and contempt—Conspiracy to do all this and more—necessity of defeating it:—Ferment raised by wicked and artful men—necessity of allaying it:—Respect for every thing that is respectable, on the point of being shaken off—necessity of fastening it on. All these topics—with a thousand others equally conclusive—all of them in such well-exercised and skilful hands—can they fail of furnishing argument enough, to justify the adopting, in one court, a practice, which, with so complete a success, has so long been established in another?*

Were it possible that, for such unction, the cruise for example, of Mr. Justice Grose’s eloquence should ever fail—fail when addressed, if needful, to his own subordinate—addressed in form to none but the culprit libeller, who for his better instruction in the art of decorum, is about to be sent to school for a few years at Dorchester or Gloucester—addressed in form to none but this one scholar, but moreover in effect to the master packer, who is sitting under the head master all the while—were it in the nature of things that such a fountain should run dry, is not the eloquence of Mr. Bowles, published and to be published, or even though it were not published, always at command?

Thus, then, in respect of law and practice, in the field of libel law, and in respect of the liberties disposed of by it, stands the result. In a case (let us now return to abstractions) in which the personal interests and passions of the judge, or of any of his closest connexions, are most deeply affected, the selection of the individuals, by whom, in the character of jurymen, a check is supposed to be constantly applied to the power of the judge, is as constantly in the power of the very person or persons, to whose power the authority of these assessors is supposed to operate as a check: and this with the fullest and freshest information, not only of their characters and circumstances in every respect, but also of their disposition in relation to this, as well as all other points of judicature that come under their cognizance.

If this statement be correct, what are jurors, in all such cases, but mere puppets?—jury-trial, but a solemn indeed, but disastrous puppet-show? The judge but showman, who, with the intervention of a system of machinery more or less complicated, moves the wires: the judge, who in the sort of case in which his interests and passions are most deeply affected, is in effect judge, sole judge, in his own cause.*

I spoke of decorum. Yes, it is for breaches of decorum that, under a judicatory thus constituted, libellers (and who is there that is not a libeller?) have so recently been crushed by punishments of such unexampled rigour: for a libel on the king, imprisonment for two years: for libels on judges (and let not the climax pass unnoticed)—for libels on judges, parties and judges in their own cause—imprisonment for three years, with et cæteras:—imprisonment to the destruction of livelihood in a scene of secluded penitence.† Nor let this be unremembered—viz. that in the most recent of those cases, perseverance—perseverance in this novel track of rigour—is announced.*

“But, under libel law as it stands—and now that the punishment awaiting a delinquent is understood to be thus destructive,—can you really regard it,” it may be said, “a probable event, that a special jury of Englishmen (who cannot, all of them, be supposed to be regardless of English liberties) will persevere in pursuing a course which, in your view of it, would be so completely destructive of English liberties? For admitting that, under the influence of a sinister interest so constituted, obsequiousness will carry a man a certain length, it follows not by any means that, to the sinister effect of such influence, there should be absolutely no limits. Even from persons thus unhappily exposed to temptation, can depravity, such as that would be, be seriously to be apprehended? In English bosoms is there no such sense as a sense of shame . . . . ?”

I answer—that, to destroy the de facto liberty of the press, as completely as the de jure liberty of it has for ages been destroyed, there needs not any sort of conduct, to which any such word as depravity, or anything like it, is wont to be applied:—in a word, that there needs not, on the part of any one individual breathing, anything which any man can reasonably be expected to be ashamed of.

But, for the reader to be the more effectually impressed with the truth of this proposition, three other matters of fact present themselves as necessary to be borne in mind:

1. That, with libel law in its freshest state—the state in which it is declaredly ready and about to be enforced—enforced by punishments, the rigour of which has just been brought to view—the existence of a de facto liberty of the press, in any sense in which it is capable of operating as a check to misconduct in any shape, on the part of public men, is perfectly incompatible: I mean if the intentions, declared as above, be, with any tolerable degree of steadiness and consistency, pursued.

2. That, by the mode in which judges are in use to direct—and, without exposing themselves to reproach, or so much as complaint, may for ever continue to direct juries, it is rendered difficult, to a degree of hopelessness, for a jury, without setting its face, in a style of marked opposition, against the opinion of the judge, to avoid convicting a man as for a libel, be the paper of a sort ever so necessary to the preservation of English liberties.

3. That, the fixation of the punishment not lying within the province of the jury, no consideration grounded on its magnitude, can operate in such a manner as to afford, to the publisher of any, the most meritorious composition, any chance of acquittal at their hands.

A small sample of libel law, in its freshest state, will form the business of the next chapter.

[† ]Special jury causes, in a year, in the Exchequer, 84: in the King’s Bench, crown side, but 15. Phillips, p. 159.

[* ]Since the matter of the text was transmitted to the printers, accident has thrown in my way a pamphlet, bearing date in 1794, and entitled, “A Vindication of the Conduct and Principles of the Printer of the Newark Herald. . . . . . by Daniel Holt, Printer of the Newark Herald.” In page 19, I read, in form of a note, a piece of history, which presents itself as not altogether inapposite to the present purpose. To any one, by whom any degree of credence is given to the statements contained in it, it will serve to prove two things: 1. That at the time in question, viz. anno 1777, no guinea corps had, for King’s Bench service, received as yet any such organization, as we have seen, and shall see again and again, a corps of that description and character to have received for Exchequer service: 2. That though in the King’s Bench, and for King’s Bench service, no such regular corps had been as yet put upon the establishment, a strong sense of the need which the service had of such a corps was entertained, and that honourable court had accordingly found extra work for one of those fiction-mints, without which not one of all the honourable courts in Westminster-hall would hold itself competent to go through its business. The note is as follows: the passage which it quotes is here inserted at second-hand, the original not being at present within reach.a

“As the nature of forming special juries,” begins the note, “is not generally understood, at least in the country, I shall make no apology for introducing the following curious and interesting account of the manner in which they are selected, to the notice of my readers. It is taken from the trial of John Horne Tooke, Esq. for a libel, in the year 1777:—

“ ‘The special jury,’ says Mr. Tooke, ‘you may imagine, are taken indifferently, and as it may happen, from a book containing all the names of those who are liable to serve. I thought so when I read the act of parliament appointing the manner in which they should be taken; but when I came to attend to strike the special jury, a book with names was produced by the sheriff’s officer. I made what I thought an unexceptionable proposal: I desired the master of the crown office (whom I do entirely acquit, and do not mean the slightest charge upon)—I desired the master of the crown office that he would be pleased to take that book; open it where he would; begin where he would, at the top or at the bottom; and only take the first forty-eight names that came. I said, I hoped that to such a proposal the solicitor of the Treasury could have nothing to object. I was mistaken; he had something to object. He thought that not a fair way (turning round to the attorney-general.) There were witnesses enough present; and I should surely be ashamed to misrepresent what eight or nine people were present at. He thought that not a fair way. He thought and proposed as the fairest way, that two should be taken out of every leaf. That I objected to. I called that picking, and not striking, the jury. To what end or purpose does the law permit the parties to attend, if two are to be taken by the master of the crown office out of every leaf? Why then need I attend? Two may as well be picked in my absence as in my presence. I objected to that method. The master of the crown office did not seem to think that I had proposed anything unreasonable. He began to take the names; but objected that he could not take the first forty-eight that came, because they were not all special jurymen; and that the names of common and special jurymen were mixed together, and that it would be a hard case that the party should pay the expense of a special jury and not have one; that they were expected to be persons of a superior rank to common jurymen. I could have no objection to that, provided they were indifferently taken. I said, Take then the first forty-eight special jurymen that come. He seemed to me as if he meant to do it. He began, but as I looked over the book, I desired him to inform me how I should know whether he did take the first forty-eight special jurymen that came, or not; and what mark or description or qualification there was in the book, to distinguish a special from a common juryman? He told me, to my great surprise (and he said he supposed I should wonder at it,) that there was no rule by which he took them. Why then, how can I judge? You must go by some method. What is your method? At last the method was this: that when he came to a man a woollen-draper, a silversmith: a merchant (if merchant was opposite to his name, of course he was a special juryman,) but a woollen-draper, a silversmith, &c. he said that there were persons who were working men of those trades, and there were others in a situation of life fit to be taken. How then did he distinguish? No otherwise than this: If he personally knew them to be men in reputable circumstances, he said, he took them; if he did not know them, he passed them by. Now, gentlemen, what follows from this?

“ ‘But this is not all. The sheriff’s officer stands by, the solicitor of the treasury, his clerk, and so forth; and whilst the names are taken, if a name (for they know their distinction) if a name which they do not like occurs and turns up, the sheriff’s officer says, ‘O, sir, he is dead.’ The defendant, who does not know all the world, and cannot know all the names in that book, does not desire a dead man for his juryman. ‘Sir, that man has retired.’ ‘That man does not live any longer where he did.’ ‘Sir, that man is too old.’ ‘Sir, this man has failed, and become a bankrupt.’ ‘Sir, this man will not attend.’ ‘O,’ it is said very reasonably, ‘let us have men that will attend, otherwise the purpose of a special jury is defeated.’ It seemed very extraordinary to me, I wrote down the names, and two of them which the officer objected to, I saved. ‘I begged him not to kill men thus without remorse, as they have done in America, merely because he understood them to be friends to liberty; that it was very true, we shall see them alive again next week, and happy; but let them be alive to this cause.’ The first name I took notice of was Mr. Sainsbury, a tobacconist on Ludgate Hill. The sheriff’s officer said, he had been dead seven months. That struck me. I am a snufftaker, and buy my snuff at his shop; therefore I knew Mr. Sainsbury was not so long dead. I asked him strictly if he was sure Mr. Sainsbury was dead, and how long he had beed dead? ‘Six or seven months.’ ‘Why, I read his name today; he must then be dead within a day or two; for I saw in the newspapers that Mr. Sainsbury was appointed by the city of London, one of the committee’ (it happened to be in the very same day) ‘to receive the toll of the Thames Navigation: and as the city of London does not often appoint dead men for these purposes, I concluded that the sheriff’s officer was mistaken; and Mr. Sainsbury was permitted to be put down amongst you, gentlemen, appointed for this special jury.

“ ‘Another gentleman was Mr. Territ. The book said he lived I think in Puddle Dock. The sheriff’s officer said, ‘That gentleman was retired; he was gone into the country; he did not live in town.’ It is true, he does (as I am told) frequently go into the country (for I inquired.) His name was likewise admitted, with some struggle. Now what followed? This dead man and this retired man were both struck out by the solicitor of the treasury; the very men whom the sheriff’s officer had killed and sent into the country were struck out, and not admitted to be of the jury. Now, gentlemen, what does that look like? There were many other names of men that were dead, and had retired, which were left out. There is something more unfortunate in the case of the special jury. The special jurymen, if they fail to attend that trial for which they are appointed, are never censured, fined, nor punished by the judge. In the trial of one of the printers, only four of the special jury attended. This is kind in the chief justice, but it has a very unkind consequence to the defendant, especially in a trial of this nature; for I will tell you what the consequence is. The best men and the worst men are sure to attend upon a special jury where the crown is concerned; the best men, from a nice sense of their duty; the worst men, from a sense of their interest. The best men are known by the solicitor of the Treasury: such on one cannot be in above one or two verdicts; he tries no more causes for the crown. There is a good sort of a man, who is indeed the most proper to try all this kind of causes; an impartial, moderate, prudent man, who meddles with no opinions. That man will not attend; for why should he get into a scrape? He need not attend; he is sure not to be censured; why should he attend? The consequence follows, that frequently only four or five men attend, and those such as particularly ought not to attend in a crown cause. I do not say that it happens now. Not that I care. I do not mean to coax you, gentlemen: I have nothing to fear. You have more to fear in the verdict than I have, because your consciences are at stake in the verdict. I will do my duty not for the sake of the verdict. Now what follows this permission to special jurymen to attend or not, as they like best? Why, every man that is gaping for a contract, or who has one, is sure to show his eagerness and zeal.’ ”

Thus far the speech of Mr. Horne Tooke, anno 1777, as quoted from his trial in Daniel Holt’s pamphlet of 1794.

Turning to a pamphlet bearing date the present year 1809, and entitled, “Report of the Trial in an Action for a Libel, contained in ‘A Review of the Portraiture of Methodism:’ ” tried at Guildhall, before the Right Honourable Lord Ellenborough, and a special jury, Saturday, March 11, 1809, I read in the charge of the Lord Chief-Justice, a passage, from which an inference, though of itself certainly not a conclusive one, may be thought to arise, that in this line of service the advantage of permanence is not more fully understood, and experienced in the Exchequer, than it is already in the King’s Bench:—“As to the measure of damages,” concludes his Lordship, “it is so entirely and properly in your province, and you are so in the habit of exercising your discretion upon these subjects, that I shall not say a word about it.”

Thus far the Lord Chief-Justice. The functions of special jurymen had therefore, it should seem, become habitual to the gentlemen to whom he was addressing himself, and that to his Lordship’s knowledge.

[* ]That, for the purpose of enforcing obedience to his own judicial orders, he ever has been so, and (subject always to eventual check from some still higher tribunal) ever ought to be, is most indisputable: hence the practice and propriety of attachment for contempt.

In Lord Mansfield’s reign, under the convenient laxity of the word contempt, an attempt was made to extend procedure by attachment to the case of a libel, when directed against a Judge. The nerves of Lord Mansfield failed him: that project was abandoned. At present, whatsoever other wants may be supposed, of nerves at least there is none. But, so long as juries are what, according to Exchequer doctrine, they not only are but ever ought to be, to what use should a project so full of trouble, if not of hazard, be revived?

[† ]That on the propriety of this climax a judgment may be formed, let the following brief observations be considered:—

1. In the whole field of government, there is not an abuse which could not, without any reflection on the personal conduct of the king, be laid completely open, and receive its correction: in the particular field of judicature, there are few, if any, abuses, that could be fully brought to light, without reflection, in some shape or other, upon the personal conduct of the judge.

2. The king, let him conduct himself as he may, cannot, while the constitution stands, be removed or suspended; at least not without the concurrence of both houses of parliament: a judge, if he misconducts himself, may be removed, on an address, by either house of parliament.a Canvassing the personal conduct of the king has therefore a mischievous tendency, without any useful one: while canvassing the personal conduct of a judge has, on the other hand, a useful tendency, without any pernicious one. To the prejudice of a judge, whatever is said, has, even if it be false, this good effect—viz. that it applies to his conduct the only efficient check of which in practice it is susceptible—the attention of the public eye.—Two years imprisonment for a libel on the king: three years imprisonment, with et cæteras, for a pair of libels on a pair of judges!

[* ]Observer, May 7, 1809—“May 6, 1809. In the court of King’s Bench, George Beaumont, the printer and publisher of a Sunday newspaper, was sentenced for a libel on the king to be imprisoned two years in Newgate, to pay a fine of £50, and find securities at the expiration of his imprisonment for five years—himself in £300, and two sureties in £200 each. Mr Justice Grose, previously to passing sentence, declared that, from the frequency of this offence, it became necessary to punish it with exemplary severity.” Two years is not more but less than three years: but in the two years case it was only the king that was libelled.

[* ]Since the matter of the text was transmitted to the printers, accident has thrown in my way a pamphlet, bearing date in 1794, and entitled, “A Vindication of the Conduct and Principles of the Printer of the Newark Herald. . . . . . by Daniel Holt, Printer of the Newark Herald.” In page 19, I read, in form of a note, a piece of history, which presents itself as not altogether inapposite to the present purpose. To any one, by whom any degree of credence is given to the statements contained in it, it will serve to prove two things: 1. That at the time in question, viz. anno 1777, no guinea corps had, for King’s Bench service, received as yet any such organization, as we have seen, and shall see again and again, a corps of that description and character to have received for Exchequer service: 2. That though in the King’s Bench, and for King’s Bench service, no such regular corps had been as yet put upon the establishment, a strong sense of the need which the service had of such a corps was entertained, and that honourable court had accordingly found extra work for one of those fiction-mints, without which not one of all the honourable courts in Westminster-hall would hold itself competent to go through its business. The note is as follows: the passage which it quotes is here inserted at second-hand, the original not being at present within reach.a

“As the nature of forming special juries,” begins the note, “is not generally understood, at least in the country, I shall make no apology for introducing the following curious and interesting account of the manner in which they are selected, to the notice of my readers. It is taken from the trial of John Horne Tooke, Esq. for a libel, in the year 1777:—

“ ‘The special jury,’ says Mr. Tooke, ‘you may imagine, are taken indifferently, and as it may happen, from a book containing all the names of those who are liable to serve. I thought so when I read the act of parliament appointing the manner in which they should be taken; but when I came to attend to strike the special jury, a book with names was produced by the sheriff’s officer. I made what I thought an unexceptionable proposal: I desired the master of the crown office (whom I do entirely acquit, and do not mean the slightest charge upon)—I desired the master of the crown office that he would be pleased to take that book; open it where he would; begin where he would, at the top or at the bottom; and only take the first forty-eight names that came. I said, I hoped that to such a proposal the solicitor of the Treasury could have nothing to object. I was mistaken; he had something to object. He thought that not a fair way (turning round to the attorney-general.) There were witnesses enough present; and I should surely be ashamed to misrepresent what eight or nine people were present at. He thought that not a fair way. He thought and proposed as the fairest way, that two should be taken out of every leaf. That I objected to. I called that picking, and not striking, the jury. To what end or purpose does the law permit the parties to attend, if two are to be taken by the master of the crown office out of every leaf? Why then need I attend? Two may as well be picked in my absence as in my presence. I objected to that method. The master of the crown office did not seem to think that I had proposed anything unreasonable. He began to take the names; but objected that he could not take the first forty-eight that came, because they were not all special jurymen; and that the names of common and special jurymen were mixed together, and that it would be a hard case that the party should pay the expense of a special jury and not have one; that they were expected to be persons of a superior rank to common jurymen. I could have no objection to that, provided they were indifferently taken. I said, Take then the first forty-eight special jurymen that come. He seemed to me as if he meant to do it. He began, but as I looked over the book, I desired him to inform me how I should know whether he did take the first forty-eight special jurymen that came, or not; and what mark or description or qualification there was in the book, to distinguish a special from a common juryman? He told me, to my great surprise (and he said he supposed I should wonder at it,) that there was no rule by which he took them. Why then, how can I judge? You must go by some method. What is your method? At last the method was this: that when he came to a man a woollen-draper, a silversmith: a merchant (if merchant was opposite to his name, of course he was a special juryman,) but a woollen-draper, a silversmith, &c. he said that there were persons who were working men of those trades, and there were others in a situation of life fit to be taken. How then did he distinguish? No otherwise than this: If he personally knew them to be men in reputable circumstances, he said, he took them; if he did not know them, he passed them by. Now, gentlemen, what follows from this?

“ ‘But this is not all. The sheriff’s officer stands by, the solicitor of the treasury, his clerk, and so forth; and whilst the names are taken, if a name (for they know their distinction) if a name which they do not like occurs and turns up, the sheriff’s officer says, ‘O, sir, he is dead.’ The defendant, who does not know all the world, and cannot know all the names in that book, does not desire a dead man for his juryman. ‘Sir, that man has retired.’ ‘That man does not live any longer where he did.’ ‘Sir, that man is too old.’ ‘Sir, this man has failed, and become a bankrupt.’ ‘Sir, this man will not attend.’ ‘O,’ it is said very reasonably, ‘let us have men that will attend, otherwise the purpose of a special jury is defeated.’ It seemed very extraordinary to me, I wrote down the names, and two of them which the officer objected to, I saved. ‘I begged him not to kill men thus without remorse, as they have done in America, merely because he understood them to be friends to liberty; that it was very true, we shall see them alive again next week, and happy; but let them be alive to this cause.’ The first name I took notice of was Mr. Sainsbury, a tobacconist on Ludgate Hill. The sheriff’s officer said, he had been dead seven months. That struck me. I am a snufftaker, and buy my snuff at his shop; therefore I knew Mr. Sainsbury was not so long dead. I asked him strictly if he was sure Mr. Sainsbury was dead, and how long he had beed dead? ‘Six or seven months.’ ‘Why, I read his name today; he must then be dead within a day or two; for I saw in the newspapers that Mr. Sainsbury was appointed by the city of London, one of the committee’ (it happened to be in the very same day) ‘to receive the toll of the Thames Navigation: and as the city of London does not often appoint dead men for these purposes, I concluded that the sheriff’s officer was mistaken; and Mr. Sainsbury was permitted to be put down amongst you, gentlemen, appointed for this special jury.

“ ‘Another gentleman was Mr. Territ. The book said he lived I think in Puddle Dock. The sheriff’s officer said, ‘That gentleman was retired; he was gone into the country; he did not live in town.’ It is true, he does (as I am told) frequently go into the country (for I inquired.) His name was likewise admitted, with some struggle. Now what followed? This dead man and this retired man were both struck out by the solicitor of the treasury; the very men whom the sheriff’s officer had killed and sent into the country were struck out, and not admitted to be of the jury. Now, gentlemen, what does that look like? There were many other names of men that were dead, and had retired, which were left out. There is something more unfortunate in the case of the special jury. The special jurymen, if they fail to attend that trial for which they are appointed, are never censured, fined, nor punished by the judge. In the trial of one of the printers, only four of the special jury attended. This is kind in the chief justice, but it has a very unkind consequence to the defendant, especially in a trial of this nature; for I will tell you what the consequence is. The best men and the worst men are sure to attend upon a special jury where the crown is concerned; the best men, from a nice sense of their duty; the worst men, from a sense of their interest. The best men are known by the solicitor of the Treasury: such on one cannot be in above one or two verdicts; he tries no more causes for the crown. There is a good sort of a man, who is indeed the most proper to try all this kind of causes; an impartial, moderate, prudent man, who meddles with no opinions. That man will not attend; for why should he get into a scrape? He need not attend; he is sure not to be censured; why should he attend? The consequence follows, that frequently only four or five men attend, and those such as particularly ought not to attend in a crown cause. I do not say that it happens now. Not that I care. I do not mean to coax you, gentlemen: I have nothing to fear. You have more to fear in the verdict than I have, because your consciences are at stake in the verdict. I will do my duty not for the sake of the verdict. Now what follows this permission to special jurymen to attend or not, as they like best? Why, every man that is gaping for a contract, or who has one, is sure to show his eagerness and zeal.’ ”

Thus far the speech of Mr. Horne Tooke, anno 1777, as quoted from his trial in Daniel Holt’s pamphlet of 1794.

Turning to a pamphlet bearing date the present year 1809, and entitled, “Report of the Trial in an Action for a Libel, contained in ‘A Review of the Portraiture of Methodism:’ ” tried at Guildhall, before the Right Honourable Lord Ellenborough, and a special jury, Saturday, March 11, 1809, I read in the charge of the Lord Chief-Justice, a passage, from which an inference, though of itself certainly not a conclusive one, may be thought to arise, that in this line of service the advantage of permanence is not more fully understood, and experienced in the Exchequer, than it is already in the King’s Bench:—“As to the measure of damages,” concludes his Lordship, “it is so entirely and properly in your province, and you are so in the habit of exercising your discretion upon these subjects, that I shall not say a word about it.”

Thus far the Lord Chief-Justice. The functions of special jurymen had therefore, it should seem, become habitual to the gentlemen to whom he was addressing himself, and that to his Lordship’s knowledge.

[† ]That on the propriety of this climax a judgment may be formed, let the following brief observations be considered:—

1. In the whole field of government, there is not an abuse which could not, without any reflection on the personal conduct of the king, be laid completely open, and receive its correction: in the particular field of judicature, there are few, if any, abuses, that could be fully brought to light, without reflection, in some shape or other, upon the personal conduct of the judge.

2. The king, let him conduct himself as he may, cannot, while the constitution stands, be removed or suspended; at least not without the concurrence of both houses of parliament: a judge, if he misconducts himself, may be removed, on an address, by either house of parliament.a Canvassing the personal conduct of the king has therefore a mischievous tendency, without any useful one: while canvassing the personal conduct of a judge has, on the other hand, a useful tendency, without any pernicious one. To the prejudice of a judge, whatever is said, has, even if it be false, this good effect—viz. that it applies to his conduct the only efficient check of which in practice it is susceptible—the attention of the public eye.—Two years imprisonment for a libel on the king: three years imprisonment, with et cæteras, for a pair of libels on a pair of judges!

[a ]Collated with original, St. Tr. xx. 687.—Ed.

[a ]By 12 & 13 W. III. c. 2, § 3, judges are only removable on the address of both Houses.—Ed.