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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 XI.

SUCH JURIES WORSE THAN NONE.

§ 1.

Star-Chamber preferable to a covertly-pensioned Jury.

To a mixed tribunal, containing, along with the judge, a jury thus constituted, and thus directed, two other tribunals, each of them more simple in its composition, might, in cases of libel law, so long as libel law stands as it is at present, viz. without any determinate set of words for the expression of it, be substituted (it should seem) and with no inconsiderable advantage to liberty and justice.

1. One of them is—a Star-Chamber: in a word, the ancient judicatory of that name, revived, with or without amendments.

It was in that judicatory that libel law, as it stands at present, received its form and tenor: viz. in so far as form and tenor can be attributed to a species of law—viz. unwritten, alias common, alias judge-made law—of which the essential character is the not having any tenor at all belonging to it, nor consequently any purport of any such solidity as that certainty and safety can be built upon it. It was in that judicatory that the earliest cases extant—being those which, in the character of the foundations of libel law, are continually referred to—were determined.

Of that transcendent judicatory, the acknowledged fruit of which was “the keeping of all England in a state of quietude,” pure of all fermenting matter, one great advantage was the being composed altogether of persons in “high situations”—“great characters”—whose greatness, so long as it pleased the fountain of all greatness, was placed out of all danger of failing, being fixed by office.

Though, under special jury law, it does belong to the defendant to choose, out of 48 persons fixed by a very different choice, by what 12 he shall not be tried, it does not, under any law, belong to a defendant to make choice of any of the judges by whom he shall be tried. But, for my part, supposing, for argument’s sake, that it rested with my choice, more willingly would I be tried, and (being of course convicted) sentenced, by a Star-chamber composed of the same great characters as heretofore, than, under such direction, tried before a jury, of whom it should happen to me to know thus much and no more—viz. that they were so appointed and so paid:—a sentence all the while awaiting me from such a source, and of such a nature, as by the examples that are under everybody’s view, has been rendered so intelligible.

In the case of the libel in question—the libel composed of the letters signed Juverna—the “great characters,” mentioned in the title of Mr. Cobbett’s trial as objects of that libel, are “the Earl of Hardwicke, Lord-Lieutenant of Ireland; Lord Redesdale, Lord High Chancellor of Ireland; Mr. Justice Osborne,” (the alleged “pourer of broadsides”) “one of the judges of the court of King’s Bench in Ireland; and Mr. Marsden, under-secretary of state for Ireland.”

To these may be added—as so many persons, over whose wrongs a veil had been drawn, partly by their own magnanimity, partly by that of “the Attorney-general of our present Sovereign Lord the King, who for our said Lord the King was then and there in that behalf in his proper person prosecuting,” (and on such an occasion what more proper prosecuting “person could there have been?”) viz. “the honourable Spencer Perceval,”—“the Hobarts,” (meaning, doubtless, the then commonly called Lord Hobart, now properly called Earl of Buckinghamshire)—“the Westmorlands,” (meaning the then and present Earl of Westmorland)—“the Camdens,” (meaning the then and present Earl Camden)—and the then right honourable Henry Addington, now Viscount Sidmouth, and in the said libel so “unbecomingly taunted” by being called by the title of his father “Doctor Addington.”

The purpose for which this constellation of great characters is here introduced, is no other than that of saying, that it being, by the supposition, my misfortune to be under prosecution for a libel against all those several great characters—and at the same time my advantage and privilege to have, for my trial and sentence, the choice of a star-chamber, in lieu of a jury so constituted and directed as aforesaid—my choice would be in favour of the said star-chamber: and this, even supposing the constitution of it to have received this—I know not whether to call it confirmation or amendment—to wit, that of its being composed, in the character of judges, of the very same persons, neither more nor fewer, as those whom, by the hypothetical and argumentative mention thus made of their names, it may, for aught I know, at a time when to write is to write libels, have already happened to me to have libelled.

Neither caprice nor rashness dictated the choice thus made.

Judging thus openly and avowedly in their own cause—executing the operation of conviction and punishment, at the same time and with the same hands—this apparent, as well as real union of functions, at present so erroneously supposed to be disjoined, would be sufficient to point towards them the attention of the public eye: weak as every check must be, the action of which is to be conveyed up into so high a sphere, some check, and that a real one, they would have: whereas, in the existing case, while the phantasmagoric vision of a check displays itself, of the reality no signs have ever yet been visible.

§ 2.

A Jury-less Judge preferable to a covertly pensioned Jury.

2. The other sort of judicatory to which, in my own case, as above, in comparison with a jury so constituted and directed, I should not hesitate to give the preference, is a single-seated judicatory, consisting of a judge, without a jury: and this even without excepting the noble and learned judge, under whose direction the jury-box, for the reasons already so distinctly stated, would, in my mind, oppose so insuperable a bar to hope.

To those, if any such there be, to whom an object of such inconsiderable importance as the actual state of judicature, when delineated by so obscure a pen as the present, may have already presented itself to view, the considerations by which, in the character of reasons (see Scotch Reform) this choice is dictated, will, if not already brought to view, at any rate be sufficiently apparent—it being, in one word, of the nature of responsibility (in the burthensome sense of the word) to go on diminishing ad infinitum, in proportion as the number of those who are sharers in the burthen is increased: not that from the same learned judge, by whom the jury would, in the case supposed, be directed, and of course directed to convict me, I could, as far as conviction goes, entertain any rational expectation of any better fate. But, the fate of the defendant being, in the case supposed, placed so manifestly as well as completely in his hands, what in that case I should hope for is—some mitigation in the rigour of my sentence. Not that, by the non-existence of a jury—not that, by a circumstance so completely foreign to the consequences and tendency of the offence—any defalcation could be made from the real demand for punishment: but that, in some way or other, more readily felt than described, the like effect might, in some degree, be produced by prudential considerations.

“You have had a fair trial: you have been tried by a jury: by a jury composed of your equals and fellow-subjects: you have been convicted by that jury.” . . . . In this strain runs regularly the eloquence, by which, when a convict is about to receive his doom, in an oration addressed in form to his own, but in design to other, the surrounding, ears (not to speak of pens,) intimation is given to him, that is, to them, to recognise the justice of it.

In this way it is, that the satisfaction, whatsoever it be, which it is the lot of the up, start “censor”* to afford, by his suffering, to the injured excellence of “great characters” placed in “high situations,” is enjoyed without abatement: while, of any dissatisfaction that may chance to be raised by it, a portion, more or less considerable, is turned aside upon the jury-box, the inhabitants of which find, in the constitutional darkness in which their operations have been involved, an effectual protection against all assaults to which visible objects stand exposed.

Were it my lot to be tried for a libel—a lot that may fall to me at any time, as well as to every other man in the country, who can either write or read, and whose endeavour is to afford, in any shape, he being not a man of family, “instruction to mankind,”—I had rather, a hundred times over, be tried by Lord Ellenborough, sitting alone in his proper place, whatever it might be—the King’s Bench, the Star-chamber, or the Privy-chamber—by Lord Ellenborough without a jury—than by a jury trained under the direction of, as well as directed by, Lord Ellenborough. By tears, by prostrations, by a certain quantity of dust licked up, by intercession of friends, by vows of good behaviour, and other et cæteras of penitence and humiliation, it might then happen to a man to find “feelings,” where feelings, other than those which are but springs of vengeance, are not now to be found, and where, except of that sort, the printers of The Independent Whig found none.

But suppose me prosecuted, and, before such a jury, of course convicted, what would be then the language: “Fool,” or “weakest man that walks over earth without a keeper—what would you have? You have been tried by a jury of your country: you have been convicted. There! go and write libels, if you can do it within four walls, without communication from without, in the well-ordered jail of Gloucester, for six years: for three, as is proved by your transgression after the examples you have had before you, are not sufficient.” Who, in a word, who had to stand fire from an adversary, would not rather have the adversary before a screen than behind one?

PART II.

STATE OF THE PACKING SYSTEM, ANNO 1808.

[* ]Conclude we now with the catechism—the Perceval catechism—already glanced at.

“Gentlemen (p. 839,) who is Mr. Cobbett? Is he a man of family in this country? . . . . . Quis homo hic est? Quo patre natus? He seems to imagine himself a species of censor, who, elevated to the solemn seat of judgment, is to deal about his decisions for the instruction of mankind.”—Speech of the Hon. Spencer Perceval, in his character of Attorney-general, leading counsel for the prosecution, in the trial of Mr. Cobbett, as above.

Who Mr. Cobbett is—was to this man of family a matter, even at that time, not altogether unknown, and is somewhat better known at present. What he is not is—one who having secured to himself some £12,000 or £13,000 a-year of the substance of the people—raised, not by taxes, but by means, in comparison of which the most oppressive of taxes would be a relief—has made it as completely his interest, as this prosecution, with the doctrines which it afforded occasion to promulgate, have proved it to be his endeavour, to contribute what may be in his power, towards destroying whatsoever remains undestroyed of the liberty of the press.

Quis homo hic est? Quo patre natus? So long as the name of this man of family is remembered, this latinity brought forward on such an occasion,—ought never to be forgotten. Two casts of men in this country: men of family, to whom, in case of delinquency, impunity is due: men of no family, to whom, in the like case, punishment is due. One cast, who have a right to plunder: another cast, who have a right to be plundered, and to be punished if they complain of it.

Was it not by the original edition of this catechism, more than by anything else, that the French Revolution, with its horrors, was produced?

And here we see one use of a special and well-selected jury: men ennobled by the “Esquire” tacked by the constable to their names. With a pedigree reaching down, though it were from Woden, is it possible that the united force of pride and vanity should so completely have got the better of common prudence, as to represent the question guilty or not guilty, as turning upon the question family or no family, had it been to a jury of the original, the constitutional, the ungarbled, the uncorrupted stamp? Did ever man think to better his cause, by “violating” in this or any other way, the “feelings” of his judge?