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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.

PART II.

STATE OF THE PACKING SYSTEM, ANNO 1808.

CHAPTER I.

INTRODUCTION—TWO REFORMING SHRIEVALTIES.

§ 1.

Turner and Skinner, anno 1783-4.

In the year 1784, Sir Barnard Turner, and Mr. Thomas Skinner (See City Characters,) the late celebrated auctioneer, afterwards alderman of London, finding themselves Sheriffs of London and Middlesex, charged as such with duties of no inconsiderable importance, conceived what to many grave and learned persons of that time, “friends to social order and our holy religion,” was looked upon of course as a theoretic and speculative fancy; viz. that of making things “better than well,” by applying their minds to the fulfilment of those same duties. The state of things appertaining to that department having presented itself to their eyes as being in divers particulars susceptible of improvement, they made in that view what arrangements had occurred to them as being in their own power, and in a tract of forty 8vo pages* —gave an account of what they had done themselves, together with a statement of such other things as, if done by others, presented, in their view of the matter, a prospect of being of use.

In addition to some regulations, partly executed, partly recommended, having for their objects the health and good behaviour of prisoners, the changes thus spoken of under the name of “alterations and amendments,” consisted of three innovations—one respecting the disposal of goods taken in execution in civil actions, the two others respecting the place and mode of putting criminals to death.

1. On their entrance into the shrievalty, they had found lodged, by customary negligence, in the hands of the sheriffs’ officers—a class of men, whose hearts are universally recognised as standing, in a peculiar degree, exposed to the inroads of hard-heartedness and corruption—the function of nominating persons, at whose disposal, in the name and character of appraisers, goods taken in execution were regularly placed by these their patrons: and of the general result of this arrangement a tolerably adequate conception may be formed from one individual case, in which, according to the report given of it by these sheriffs, the value of the property so taken, being about five times the amount of the debt, and the whole having been taken from the debtor, no more than a tithe of it, viz. half the amount of the debt, had found its way into the pocket of the creditor; the other nine-tenths having, in some regular and established, but unascertained or at least undivulged proportions, been shared between the minister of justice, and his official nominee and associate above mentioned.

To this grievance the remedy they applied was one which, though in principle, and in the character of a regularly-established remedy, applicable by all persons on all occasions not altogether an unexceptionable one, proved, in the individual hands in question, there is reason to think, a beneficial one: the nomination which they had found, as above, in the hands of their officers, was taken out of those low-stationed and impure hands, into their own: and forasmuch as in that station men are not only too highly and conspicuously elevated, but moreover too frequently changed, to be much in danger of engaging with success in the organization of any regular plan for the extraction of lucre from so impure a source, the mischief, if not altogether eradicated, must naturally have been considerably diminished.

On what footing the matter stands at present, it has not fallen into my way to learn. At that time, as the evil genius of the discarded functionaries would have it, both sheriffs were upright as well as public-spirited men: and Skinner, being, in relation to the branch of business in question, in a pre-eminent degree an intelligent one, knew where to find his like.

At present, the magnificent edifice, now erecting in the centre of the city under the name of the Auction Mart, presents the idea of a more radical cure.

2. On the ground of capital punishment, the place and mode of execution furnished to these reformers two other opportunities for casting their honest mite into the treasury of justice.

On those melancholy occasions, on which to save the trouble of reforming them, and adjusting punishment in quality as well as quantity to delinquency, malefactors of the most diversified descriptions are involved in one indiscriminating destruction, the operation was in those days regularly preceded (it seems not easy to say why) by a procession of two or three miles length, in the course of which, whatever effect could have been expected from the concluding tragedy was more than countervailed by the intervening disorders. Struck with the incongruity of this surplusage of locomotion, our reformers fixed the ceremony to the well-assorted spot to which it remains attached at present: a spot immediately contiguous to the place of confinement from which the victims then used to be, as they still are, taken for the appointed sacrifice.

At that same time, the fatal operation being performed, as mechanicians say, by hand, was performed in that coarse and uncertain manner, by which the sufferings of the patients were exposed to receive unintentional increase. It was to this happily associated pair of humble and unambitious reformers, that the machinery, now applied to that purpose, and still known by the almost burlesque but sole existing name of the New Drop, owed its establishment. Under English justice, the intended object, as well as effect of it, corresponds exactly with that of the guillotine, under the anarchical tyranny of revolutionary France. For, in the design of the humane, as well as scientific, inventor, whose name it has perpetuated, that instrument (a French edition of our Halifax Maiden) had no other object than that of diminishing, in each instance, the suffering produced by those executions, the multitude of which depended on other hands.

To any one who has been accustomed to observe how slow, in every department of government, from the highest down to the lowest, the pace of reform is, and how thickly beset with obstacles the paths which it has to traverse, it may be apt to appear difficult to conceive by what strange accident, even in so low a sphere, a change, which had for its result, as well as for its object, the good of the many, should have been suffered to take effect.

As to the innovation which consisted in the disturbance given to the official arrangement, by which so quiet and regular a division had been made of the property of the debtor between the officer and the appraiser—in the fact of its having been suffered to take effect, and that too without opposition from above, he may behold a certain proof of two things: viz. 1. That there was no individual existing in any such station as that of a judge or other considerable law-officer, into whose hands so much as a single penny of the profit that used to be thus extracted, was ever felt to have found its way; and that, in particular, if in the disposal of any of the property in question, any errors were ever committed by any one of these inferior ministers of justice, no Chief-Justice of the King’s Bench had ever considered himself as having gained, or conceived himself as being in a way to gain, to the amount of £1434 : 15 : 6 a-year, or any part of that sum, nor any Chief-Justice of the Common Pleas, £733 : 3 : 11 a-year, or any part of that sum, nor any attorney-general that or any other sum by contributing to the manufacture, or effecting or permitting the correction of any of these errors: 2. That neither did there exist among any of those exalted personages, any individual whose pride had found itself by any accident engaged in the protection of the abuses or inconveniences thus removed.

3. As to the procession from Newgate to Tyburn, the thieves, whose practice found itself diminished by the abolition of this ceremony—these unlicenced depredators—not one of whom ever had or ever would have found any difficulty, other than from want of money, in his endeavours to purchase a toss-up for impunity on pretence of some error, bearing no more rational relation to his case than to that of the first homicide—found themselves unable in their conjunct capacity to make any such case as on the ground of precedent would, in point of decency, have warranted any gentleman of the long robe, in the character of judge, counsel, or member of parliament, to stand up in support of it.

4. As to the new drop, the dying agonies of the patients destined to be relieved by it, not having found, in a long robe or in any high situation, any person possessing any such interest in their continuance, as is possessed by such a multitude of personages in high situations and long robes, in the continuance of the living agonies of so many thousands who are kept so regularly immured in forced idleness, by their authority and for the sake of their profit and their ease, and the only persons whose co-operation towards this reform was necessary, being the surveyor and the carpenter, whose sensibility to the advantages of it was beyond dispute, thus it was that this reform too found its way into existence unopposed.

In a word, barring opposition from superior power, accomplishment being within the power of the reformers themselves, and no interest intervening in any tangible shape to call down opposition from above, the reforms, such as they were, were carried into effect.

By these circumstances, when rightly considered and put together, the known facts of the case may be found to stand divested of that air of fable, by which, to a first glance, they may have seemed obscured.

§ 2.

Phillips and x. Anno 1807-8.

From that year (1784) to 1807, nature took time to rest herself: and, in all those three-and-twenty years, though of abuse, in a considerable variety of shapes, there could not, during any part of that time, have been any deficiency, it appears not that in the series of worthy and respectable gentlemen, who succeeded each other in that office, there had been so much as one, to whom the idea had occurred, of occupying himself in any such theoretic and speculative task, as the attempting to make any defalcation from the mass: no—not a thought about any such matter, in the breast of any one of the units in so many pairs of functionaries, any more than if, instead of paying his £2000 or £3000 for the privilege of discharging the functions of his office, he had, like a pair of Honourable Knoxes, received his £10,023 a-year; or like an Earl of Buchinghamshire, his £11,094, or like a pair of Lord Seymours, his £12,511, or like a pair of Percevals (one behind the other) his £38,574 (“subject” alas! to “deduction,”) for the trouble of bearing the official title of it: practice not being, in any part of all this time, in any degree, or by any body, neglected—practice, to wit in essentials, such as going to court, riding about in a gilt chariot, giving and eating dinners, and the like.

Africa, in times of old, had the reputation of producing such singularities as could be exhibited on four legs. In modern times, England has among nations been noted for producing singularities on half the number of legs.

In the shrievalty year 1807-8, the spirit of reform having passed, as hath been seen, three-and-twenty years of repose on the pillows, or in the graves, of Sir Barnard and Mr. Skinner, made its appearance, in the character of a giant refreshed, in the body of Mr. Phillips, a publishing bookseller of the first eminence, who, on receiving from his Majesty’s sword the customary honour, changed his appellation into that of Sir Richard Phillips.

In the nature of the shrievalty there is a sort of mystery, in consequence of which he, who does not look well to his words, and even he who does, will be in continual danger of falling into one or other of two heresies, which, like Scylla and Charybdis, lie in wait for him, one on the side of grammar, the other on the side of legal and curious learning. In London and Middlesex, taken together, there is never one sheriff only; there are always two sheriffs. The same two respectable gentlemen who, in the city of London, constitute two sheriffs, and thereby two persons, constitute, in the county of Middlesex, but one sheriff, and thereby, in legal abracadabra, like man and wife, but one person;—or else vice versâ;—for, such is the frailty of unlearned memory, that as often as, in relation to this article, one minute finds me in possession of orthodoxical truth, the next minute finds me dispossessed of it.

In the artificial and involuntary fraternity contracted by him on this occasion, it was not the lot of Sir Richard to find any such felicity as that which had attended Sir Barnard and Mr. Skinner.

Bishop Burnet—or, if not he, some other self-reported eye-witness, whose name, if found, would not, to the present purpose, add much to the stock of our useful knowledge, tells us of a pair of twins whom he saw living in Holland, and whose misfortune it was to stand connected by bonds of fraternity closer by much than either of them wished; viz. by an adhesion of some sort or other, in the region of the back-bone, constituting thence, instead of two bipeds, one unfortunate quadruped.

At the age of about twenty, one person of this unhappily-connected pair paid the debt of nature. The condition of the survivor is too deplorable to be dwelt on anywhere, especially in this place. All that is here wanted of him is to serve as a type of one-half of our quadruped, or double biped sheriff.

In his pilgrimage through the thorny region of reform, Sir Richard was not long ere he found himself in the disastrous plight above alluded to. Into the body of his twin colleague, Mr. x, either the beneficent spirit above spoken of had never made its entrance, or had soon made its retreat, leaving it in the condition of a carcase, which, if not dead in law, was dead to the purpose of rendering, in any degree, less pernicious the condition of the law. At every step he took, our knight found himself with this everlasting colleague at his back, exhibiting, in no other form than that of the vis inertia, except now and then a kick or two, any signs of life.

As to Mr. x, I borrow, on this occasion for his use, one of the names employed by mathematicians for the designation of their unknown quantities, not thinking it necessary to him to possess any other introduction to “Prince Posterity” than what he has secured to himself by his own picture, as drawn by himself and published by Sir Richard, in that work of his, of which mention has been already made.

As to Sir Richard—what things he did—what other things he tried to do, and would have done, but for the giants and dragons he had to encounter in his way—all the while with this mass of proud flesh at his back—matters of that sort belong not exactly to this place: any more than the sort of requital he met with, in another character (see p. 111,) from a pair of learned brethren, whom he found so much more perfect in the art of “dwelling together in unity,” than he and his.

Of the list of his achievements and less successful endeavours, one alone belongs, by any direct title at least, to this history; viz. the discovery, made by him, of the pitch of perfection, at which the art of packing (that master art of which the elements have been endeavoured to be delivered as above,) has been carried in the application made of it to special juries.

Beholding in the Court of Exchequer, as above, the great manufactory or workshop, in which it was carried on, and seeing more to admire in the ingenuity displayed in it, than in the purposes to which he saw it applied, he addressed a letter to the chief conductor of that important branch of business, noticing the state of the art, together with such observations as had been suggested by it.

At this time he was either charitable enough to suppose—or, (what seems the more probable interpretation of the two) decorous enough to seem to suppose, that the mode in which the business was conducted was a secret to the pre-eminently learned as well as skilful person, under whose auspices and authority he found it going on. But, if such was ever really his belief, it was not long before he found himself obliged to take his leave of it.

CHAPTER II.

THE SHERIFF TO THE LORD CHIEF BARON—NOTICES.

§ 1.

Substance of the Letter.

Few, simple, and important, will be seen to be the statements made by this sheriff to the Lord Chief Baron. After the substance of each statement, follows an intimation of the sort of answer given to it.

1. That in the judicatory, over which the Lord Chief Baron presides, juries are become virtually permanent: and that the Lord Chief Baron knows they are. Of this state of things the Lord Chief Baron admits the existence; and moreover, as will be seen, justifies it.—Say, admitted and justified.

2. That this permanence is contrary to an acknowledged principle of the constitution, and considered by the public as such.—Not denied.

3. That it is contrary to the express provision of an act of Parliament [4 Geo II. c. 7, § 2.]—Not denied.

4. That the permanence has packing for its cause.

N. B. The word packing not employed: but the modes of operation indicated, and certain official persons indicated as operators.—Not denied.

5. That of the interference of the solicitor on one side, viz. the solicitor for the crown, a selection, chargeable with partiality, is the habitual result.—Not denied.

Partly by a regard to decorum, partly by the want of that experience which was yet to come, the sheriff was betrayed into two other assertions which proved erroneous.

6. One was—that this permanence had not among the number of its causes, on the part of the learned judge whom he was addressing, either direction or connivance. This was in April 1808. But in September following, we shall see him relating facts, by which, on the part of the judge, connivance was rendered certain, and direction (the system of permanence being in the judge’s answer openly defended) little short of it.

7. The other was—that among the causes was either negligence or indifference, on the part of the official persons by whom the jurors are fixed upon:—which persons, as the Lord Chief Baron could not but know, though the sheriff does not state who they were, were officers acting under the authority of the learned judge. But of this breach, not only of constitutional principle, but, as virtually admitted, of positive law, neither negligence nor indifference had been the cause. And the proof of its not having had either for its cause, is given by the sheriff himself a little further on. For, on receipt of a remonstrance made by him, we shall see the master packer giving up for the moment the supposed illegal practice, but afterwards resuming it.

§ 2.

The Letter in its own words—with Observations.

Here follows the letter in its own words. Phillips, p. 166.

“TO THE LORD CHIEF BARON.

“My Lord,—

In obtruding upon you Lordship, on a question which has arisen in the exercise of the high office which I have the honour to fill, and which appertains, in an important degree, to the practice of the court over which your Lordship so honourably presides, I am emboldened by that urbanity and liberality, which I have discovered to be the leading and actuating traits of your personal character.

“Your Lordship is doubtless aware, that the public have viewed with peculiar interest, for many years past, the manner in which special juries are brought together, and particularly the circumstance that they have consisted, with little variation, of nearly the same individuals in every cause, for terms and years together.*

“In causes between individuals, this is a matter of minor consequence; but in causes between the crown and the subject, your Lordship will readily conceive, that it is a practice viewed with jealousy, and does not accord with those other features of our jurisprudence which are so much admired at home and abroad.

“The evil is not attributable to the connivance or direction of the judges,* nor to any defect in the law; but it arises solely, as I am told, from the negligence or indifference† with which the juries are struck by the proper officers, and from the interference, in certain cases, of the solicitors for the crown.‡ The freeholder’s list is full, and tolerably perfect; but in calling over the names, the solicitor is permitted to interpose, and to say who will and will not attend: so that instead of the names being indifferently taken and dictated by the officer of the court,*and the attendance of those persons being compelled by the exaction of severe penalties, the juries are chiefly composed of those who, it is loosely stated, will attend; and these are frequently the same persons, jury after jury, and term after term.

“Your Lordship will perceive, from the inclosed letter† of Mr. * * *, that the sheriffs have had some difficulty in their minds on the subject of summoning persons thus returned; considering as they do, that the clause of the 4th Geo. II. applies equally to special and common juries. Yet as the correction of the evil is their object as public officers, rather than any contention with the officer of the court, I have felt it more respectful at once frankly to submit the whole matter to your Lordship, in the hope that it may tend to place everything on its proper footing in the pleasantest manner.

“I beg at the same time to have it distinctly understood by your Lordship, that in making this statement, and in writing the observations contained in this note, I have had no design to implicate the conduct of any individual; and that, in stating the general facts, my only object has been to justify the application which I have in this manner felt it my duty to make.

“I entreat of your Lordship to believe me, with every sentiment of respect, yours, &c. &c. &c.

“R. Phillips.”

Bridge Street, April 4, 1808.

CHAPTER III.

LORD CHIEF BARON TO SHERIFF SIR RICHARD PHILLIPS—AVOWRIES AND DEFENCES.

§ 1.

Substance of the Letter.

Four days after the sheriff’s letter, viz. on the 9th of April 1808, comes, from the Lord Chief Baron to the sheriff, an answer, of the general complexion of which an intimation has been given, as above.—I. Admitted and justified, the permanence. II. Not denied—1. That it is unconstitutional; 2. That it is contrary to act of parliament; 3. That the mode in which it is effected is by officers in his lordship’s dependence, in collusion with the solicitor on one side.

None of all these phenomena coming, in his lordship’s conception, under the notion of “inconvenience,” he declares—and on the authority of his own “long” experience—that not “the least inconvenience” has, from the practice in question, ever “arisen during all that time.”

On the other hand, to the restoring special juries to that state of independence in which they are, by the constitution, intended, and, in fact, supposed to be, he opposes two decided objections. These may be comprised under the following heads:—

1. Increase of vexation—viz. eventual vexation to persons liable to be called upon to serve in the capacity of special jurors: vexation, a mischief the avoidance of which constitutes, it must be confessed, one of the collateral ends of justice.

2. Danger to justice—viz. to the main and direct ends of justice—by the prejudice that may result to one side of the cause or the other, as it may happen: to wit, by a partial loss of a species of “instruction,” which, in the class of causes in question, he represents the jurors to stand in need of, to make them do justice.

Theoretical classifications, such as the above, are looked down upon of course with sublime disdain by the almighty creators and arbiters of practice. But being my duty, it is my endeavour, to place his lordship’s arguments in what appears to me the clearest as well as strongest light of which they are susceptible.

Of these supposed inconveniences, such is the force with which the consideration operates on his mind, that he concludes with using his influence with the sheriff to engage him to leave things as they are.

Whether, even supposing the inconveniences in question to exist—and that in the utmost degree of force in which they are capable of existing—whether, even on that supposition, they would in law constitute any sufficient warrant, or so much as an apology, for the mal-practices, the existence of which is admitted, is a point on which not much seems to require to be said.

But the very existence of the inconveniences in point of fact, seems to call for an inquiry, which will be the business of another chapter.

§ 2.

The Letter in its own words.

“TO SIR RICHARD PHILLIPS.

“Old Balley, April 9th, 1808.

“Sir,—

Permit me to thank you for the very flattering manner in which you were pleased to make the communication I received, with respect to the summoning of special juries. Mr.—’s observations were perfectly just;* I cannot but observe, however, that he uses the expression, ‘if you think it worth your while’ to make any reform:* this, as far as respects the Court of Exchequer, I have not found, from the experience of above twenty-four years, in the character of his Majesty’s law officer, or as Chief Baron, to be worth while; as I have never seen the least inconvenience* arise from the manner of striking and summoning special juries, during that time. A great inconvenience to the special jurors must arise from summoning those from a distance.†

“The causes in the court of Exchequer are of a nature quite peculiar to themselves in many respects, and the duration of any cause is particularly uncertain. In order to obtain their attendance, it has been found expedient to summon such as live near to London,‡ otherwise there would be little expectation of having anything like full special juries,∥ and almost all causes in revenue matters are tried by special juries.

“Within the last half year, I have had complaints in court, by gentlemen summoned on the special jury, of being brought fifteen miles from their homes,* whereas the persons living in the immediately adjacent parts of the county could attend without any inconvenience. I may add, too, that some experience in serving upon Exchequer special juries is far from being detrimental to the public or defendants, inasmuch as the instructing jury after jury,† in the conduct of many species of manufactures, and the laws on the subject, exposes both parties to the hazard of the points being ill understood, and hastily determined by them.

“During the long time that I have been employed in the court of Exchequer, I have known few verdicts from which I should have dissented,* had I been one of their inestimable body, and they have been cases wherein the determination has been favourable to the defendants.†

“Having hitherto seen* no reason to complain, as far as my experience goes, it must be left to your own discretion,† whether you will risk the making us better than well.‡ I am, Sir, with great respect, your obedient humble servant,

“A. Macdonald.”

CHAPTER IV.

OBSERVATIONS ON THE LORD CHIEF BARON’S DEFENCES.

§ 1.

Insufficiency of the Defences in any case.

Come we now to the consideration of the two inconveniences, the pressure of which on his lordship’s mind became so irresistible, as to force him at once upon two measures of such extremity as the violating an acknowledged fundamental principle of the constitution, and travelling on for years in a course of persevering and open-eyed disobedience, in the teeth of the authority of the legislature.

Not that, had the advantages professed to be expected from this transgression been ever so many times as great as even by himself they could have been supposed to be, they could ever have amounted to so much as the shadow of a defence. On every imaginable supposition, the operation thus performed by the subordinate, by the judicial authority, is indefensible. The change thus effected, would it, if proposed to parliament, have been approved and carried into effect by parliament?—attempting it by judicial authority was needless:—would it have been disapproved?—attempting it by judicial authority was not fitting.

Instead of that of George the Third, had the reign been such an one as that of Elizabeth, in which the intention of sparing the subject as much as possible—perhaps for ever—the trouble of paying their homage at the foot of the parliamentary throne, was declared—declared, from the throne itself, and merit grounded on it—at such a period—such usurpation might, in such supposed advantages, have found an excuse. But now—in the 19th century—when the return of the sessions is become no less regular than that of the seasons—is this a time when the plea of necessity can form so much as a veil—any even the slightest veil—for such usurpation?

Yet, though the work be but supererogation—and the words bestowed upon it little better than surplusage—let us take up the arguments one after another, and look a little into their texture. Let us see whether, when put together, there be in them indication of any such mass of substantial inconvenience, as could have served for a ground, even for so much as a constitutional and regular recourse to parliament for the removal of it.

§ 2.

Defence 1—Avoidance of Vexation

“Brought fifteen miles from their homes!” Alas! poor “gentlemen!” Brought fifteen miles, each of them for no more than a few guineas—possibly even for no more than one—to a place to which everybody comes, and to which, but for the summons and the guineas, without any guineas received, and at the expense of guineas paid, they would otherwise have come!

Oh! what a charming thing it is to be a gentleman! If, on the bed of roses you repose upon, there be but a single leaf that has a pucker in it, how tender the sympathy excited in reverend and learned breasts!

Fifteen miles from the metropolis!—and in the whole of this almost smallest and most compact of English counties, exists there really any one spot banished to so tremendous and toilsome a distance?

What if it had been in one of the large or straggling counties?—in Yorkshire, in Lincolnshire, in Devonshire, in Sussex, for example? In any of those instances, how many more miles would the maximum have swollen to? But the imagination is appalled, and shrinks from the research.

Turn now to common jurymen—for the definitive trial of causes the only sort of jurymen which till t’other day the constitution knew of. Place them in one of the large or straggling counties, and fetch them to court, each for his eight-pence.

Aye, but these are low people—people who cannot say their catechism—their Perceval catechism—(See Part I. Ch. XI. § 2)—people of no “family”—people (as we shall learn from the observations of the learned Templar, whose “observations are so perfectly just”)—people whose time, if it be not absolutely worth nothing, is at any rate, in the estimate of Exchequer justice—or say at once of Westminster-hall justice—not worthy of a thought—people who except for the purpose of thus serving in it without recompence, are thrust forth in a lump out of the temple of justice into the pit of outlaury, lest the fund of rewards provided for learned merit should fail of being adequate to that exclusively important service.

As to the principles, the true legal principles, on which the value of time ought to be computed, this topic will meet us in the next chapter.

§ 3.

Defence 2—Benefit of Instruction.

Direction to Judges, Advocates, Politicians, and other Debaters; showing a safe method of defending the wrong side of any question, especially where you have the advantage of situation on your side.

Where the nature of the case is such as to afford you, for the purpose of your argument, no fact, but what, if relevant and particular enough, would not only be false, but too plainly so not to be seen to be so, mount up into the region of generalities, till you come to some proposition, which, being by reason of its generality neither true nor false, is by that means saved from the inconvenience of being proved to be false. By this means, should you fail of convincing men, those excepted who find their convenience in being convinced, at any rate (what is no small point gained) you secure yourself against being confuted. And among men of modesty and diffidence, those who cannot exactly find out what your meaning is (at any rate, if your “situation” be a “high” one, and they scholars bred up in Blackstone’s school,) will, if they do not plainly see your meaning to be false, give you credit for its being a good and true one.

Whether a rule to this effect was ever laid down in words, is more than my slender stock of learning will enable me to pronounce:—that it has been acted upon, and that right frequently, may be asserted with less diffidence. Witness ourselves at Westminster, et cætera, and so forth:—at Westminster, in all our courts, and moreover in both our houses.

“Experience . . . . far from detrimental” . . . . . Instruction needful to human ignorance—two lessons better than one—three better than two, where two have proved insufficient—against maxims such as these, where is the caviller so perverse as to pretend to have found anything to object? Proof against all disproof, what, at the same time, does all this prove? Among those “many species of manufactures,” had but a single one obtained a mention, here it is that, if in the general proposition, thus cut down to a particular one, a speck of error had found itself included, the finger of detection might have been laid upon it:—meantime, in default of stronger handles, let us look out for something that for the moment may be taken hold of, though it be but of straw or cobweb.

But before we proceed to observe upon it, let us, by way of necessary preliminary, begin with the endeavour to interpret it, or, as they say in Westminster-school, and in Westminster-hall, to construe it—or, in plain English, to find out the meaning of it, or, when the worst comes to the worst, a meaning for it.

“Instructing jury after jury . . . . exposes” (says his Lordship) “parties to a hazard.” . . . . . Not that from this we ought to conclude that, taken in the abstract, instruction is a bad thing:—bad, either for those to whom it is not, or those to whom it is, communicated.

No, nor yet that, in taking for the subject of instruction “many species of manufactures,” there is more of hazard than there would be in confining the instruction to some of them, and leaving the rest to go without it . . . . But . . . .

But—lest to construction, carried on upon this plan, there should peradventure be no end, let us lay aside construction, and take up paraphrasis, or, as we say in English, paraphrase, instead of it.

Many are the species of manufactures, in the instance of each of which, in respect of this or that part of the whole assemblage of instruments and operations, which, on the occasion of a revenue cause in the Exchequer, is liable to come in question, the demand for instruction and explanation is so considerable, that the utmost quantity of instruction that will, generally speaking, have been afforded on the occasion, and brought within the compass, of a single cause, will not have been sufficient to satisfy it: so that, should the same part of the process be brought a second time under the notice and cognizance of one and the same juryman, the probability is, that with the help of the additional instruction which on this second occasion he will receive, the conception which he will have obtained of the matter at this second trial, will be more accurate and complete, than the conception he obtained at the first trial, whereby, in so far as depends upon him, the chance in favour of a right verdict will receive a proportionable increase.

§ 4.

Mischievous Doctrines involved in this Defence.

Meantime, if this, or any thing like it, be the argument of this pre-eminently learned judge, let us observe now where it leads. We shall find involved in it the following doctrines:—

1. That, in respect of causes of the particular description in question, jury-trial, in the ordinary mode, is not a fit mode of trial: at any rate, not so fit as the new mode which he has contrived to substitute to it.

2. That for these causes, the more proper, if not the only proper species of judicatory, is that which is composed of a board or bench (call it which you please) of permanent judges: for example, such as the board of excise, which already to a considerable extent has jurisdiction in these same matters: the principal difference being, that in this special-jury board there is an over-number of judges, to make a kind of rotation: which species of judicatory, preserving to it still the name of judge and jury, with the forms of jury-trial, he has substituted accordingly.

3. That, the mode employed by him being such as renders this secretly formed board of completely dependent judges, under the disguise of jurymen, applicable with equal facility, and in practice, as there is reason to think, (Suprà, Part I. Ch. VIII.) actually applied, at the pleasure of dependent servants of the crown, to crown causes in general (capital, and next to capital, excepted,) and, in particular, to crown libel law causes, the superiority of advantage attached to this sham jury-trial, as compared with the genuine mode, is such as warrants the departure made to so great an extent from the acknowledged principles of the English constitution.

4. That this superiority is even such as not only would warrant the legislature in making the change, but actually has afforded to a judge, viz. to himself, a sufficient warrant for making it of his own authority, and without warrant from the legislature.

§ 5.

Acknowledged Nothingness of the Advantage.

Such being the price paid, at the expense of the constitution, by this our learned improver, for the sort of improvement introduced by him, with such advantages as may be found belonging to it, a question to which the mind of the inquirer is naturally and unvoidably turned is—what may be the amount of this advantage, according to the estimate formed of it by the learned improver himself: this being the advantage for the sake of which he has been content to give birth to all those other results, the complexion of which is, to ordinary eyes, so far from being advantageous?—and, for answer to this question, what we find, certified to us by his own words, is, that, in his own estimation, this advantage amounts either to nothing at all, or to something between nothing and next to nothing. It amounts not so much as to the absence—total absence—of all “detriment” or inconvenience: it amounts to no more than the absence of “detriment” in one particular shape; viz. in the shape of “experience.” “Some experience,” says he, “in serving upon exchequer special juries is far from being detrimental to the public or defendants”. . . . whereupon immediately come those clouds, in which we have seen this pre-eminently learned person losing himself, when he goes on to speak of the “hazard” to which “both parties” are “exposed” by “the instructing jury after jury.”

While puzzling myself with this glimpse of an advantage, being curious to discover, if possible, what might be the amount and value of it in the eyes of the learned improver himself—and, instead of recurring at once to his own estimate, as above, having fallen unawares into the error of endeavouring to determine it, from the price I saw he was so well content to pay for it, I had strayed insensibly into the inquiry, what might be the real amount of it; and in this view, at the cost of some days of labour, I had actually pursued to no inconsiderable length the analysis of it. But upon turning once more to his own words, and finding that it was not easy for any person whatever to sct this supposed advantage at any lower rate than it had been set at by the learned improver himself, I saw at length, and not altogether without regret at the thoughts of the time thus wasted, that I had been all this while combating without an antagonist.

I therefore spare the reader, for the present at least, the labour of following or attempting to follow me, through a sort of analysis so dry and intricate as to involve, in the way of indication at least, a mass of mathematical calculation. But should it ever happen to his Lordship, or to any avowed advocate of his Lordship, at any such bar as that of the House of Lords, or even that of the public, to draw into question by any arguments the propriety of this his estimate, I mean in so far as it sets down this so dear bought advantage as amounting to next to nothing, I am ready to produce this my analysis, and, upon the supposition in question, to defend, against these his Lordship’s first thoughts, any second thoughts, either on the part of his Lordship, or on the part of any other such less dignified defenders and gainsayers.

§ 6.

Short Exposure of the supposed Advantage.

Meantime, in demonstration of this nothingness, one argument (it being a short one, and not involving any inquiries of detail) shall not be consigned to oblivion with the rest.

On the part, and in the person of, and from the “instruction” that would be afforded by, this our pre-eminently learned judge, a jury of the old school, were it permitted to “serve,” would have the benefit, not merely of “some experience,” but of consummate experience. Now then, after the benefit of such instruction, though received in the course of no more than one single cause, to wit, the cause for the trial of which such jury had been summoned, and was sitting, what would be the utmost advantage derivable to any practical purpose, from any other, to wit, any antecedent lecture or course of instruction, that could, even from the same pre-eminently learned lecturer, have been received? Nothing; no, nothing at all; is the answer I return with the utmost confidence. Where “the points” were such, as to be either plain enough in themselves, or made so by the one only lecture which, till this our pre-eminently learned lecturer set up, was ever designed by the constitution for an English jury, his Lordship would accordingly leave the decision to the opinion of these plain men. When these same “points” had any such intricacy in them, as entitled these plain men to the benefit of an opinion, formed and ready made for them by this at present consummately experienced, and from the first most incontestably competent judge, he would not refuse it to them. This incontestably competent opinion, would it find them disposed to acquiescence? Acquiescence would take place accordingly; and (in the Blackstone’s phrase) “everything would be as it should be.” Would it find them disposed to refractoriness? It is not by any antecedent experience that they could have been cured of so troublesome a vice.

But (says some one, with the proper expressions of regret) the country (alas!) cannot always enjoy the blessing it possesses at present, in the services of this our veteran and consummately experienced judge: that blessing withdrawn, comes some other Lord Chief Baron, who, though the adequacy of his general legal learning will be sufficiently proved by his situation, will not, with reference to causes of the class in question, be, at the commencement of his first cause, altogether so completely endowed in the article of experience. Here, then, upon his Lordship’s improved plan, comes the benefit of an experienced, and thence of a permanent jury:—while the judge is learning to walk, the jury will be able to go alone. But, upon the old plan, what experience would there be?—When the blind have no leader but the blind, the consequence is such as need not be mentioned.

I answer—were the argument, which has been shown to be worth nothing, worth ever so much, it could not to this purpose be of any use. At a much cheaper rate than the violating of a vital principle of the constitution, an adequate allotment of appropriate experience might, at all times, be seated upon the bench. “Set a thief to catch a thief,” is a coarse proverb, but, on the present occasion, not an uninstructive one. In that division of the court of Exchequer (not to speak of the great law-officers, who might not always regard a presidentship, which has so recently cried date obolum, worth the honour of their acceptance,) there will be always some one learned gentleman at least, by whom, in the character of licensed accessary after the fact, or, in two words, standing counsel to the fraternity of smugglers, an ample stock of experience—appropriate experience—cannot but have been laid in.

But (replies the learned gentleman on the other side) any rule to this effect would be an infringement upon the liberty of the prerogative: that liberty being proportionably trenched upon by every rule, the tendency of which is to secure the appointment of fitter functionaries in preference to less fit ones. It would accordingly be injured, if, in his choice of judges, it were rendered more difficult to his Majesty than it has been, to provide for the accommodation of the family connexions of persons in “high situations.”

Prerogative (I answer) is an argument, which is (I must confess) understood never to admit of any direct contestation. But, in the Westminster-hall benches, besides ten subordinate seats, there are four chief or principal ones: and the prerogative, it is humbly submitted, would not sustain much injury, if, for the superior purpose of private accommodation, it were to apply itself to some one of the many other seats in which no such imperious demand for experience—appropriate chemico-mechanico-commercial experience—as that of which, by the unprecedented sagacity of the present Lord Chief Baron, the discovery has so recently been made.

§ 7.

Mischievousness of the Doctrine further developed.

But the material thing is, that, if his Lordship’s sentiments have not been strangely misinterpreted by his words, it is not merely in Exchequer causes, viz. Exchequer revenue causes, that, in his conception of the matter, the substitution of a permanent and dependent board, under the name of a jury, to the jury of the old school, ought to be applied; but in all causes to which that antiquated species of jury has ever been applied: in all such causes, without exception, but more particularly in libel causes. For, such is the nature of the reason thus held up by him to view, that to the application of it any narrower extent cannot surely be assigned. This reason consists of the ignorance under which each member of a jury cannot but be supposed to labour, the first time, at least, of his serving in that character: of which ignorance, in his Lordship’s view of the matter, the influence—the morbid and debilitative influence—is such, that nothing less than permanence can afford an adequate cure for it.

The “points” which he speaks of as being the subjects of this ignorance—of this ignorance to which there exists no remedy but in that “experience” which supposes permanence—the actually existing and thus defended permanence—are, not only points relating to the conduct of manufactures, “many species of manufactures,” but points relating to “the laws on that subject,” meaning on the subject of these same mannfactures.

Unfortunately, in comparison of what is to be found in the great body of the laws, the utmost difficulty of comprehension, and consequently of demand for instruction—for experience in receiving instruction, and consequently again for permanence of situation, the utmost demand created by those particular laws, which have for their subject “the conduct of manufactures,” is as nothing. In the instance of every part of the rule of action, which has any species of manufacture for its subject, that rule is in the shape of statute law—a shape in which it is provided with a determinate set of words for the expression of it. But, in the case of the great body of the law, remaining as it does in the shape, or rather in the shapeless state, of common, alias unwritten, law, there exists no such determinate set of words. In all this vast extent, the two sources of difficulty, and with it of demand for “experience” and permanence—viz. law and manufacture—are combined in one. Judges, the master manufacturers: law, or, what to every purpose—of suffering at least, if not of instruction or relief,—has the force of law, law itself the product of the manufacture.

In the case of every other species of manufacture—of every species of manufacture commonly known by that name, the master manufacturer viewing, in every misconception that may take place, a source of loss to himself, and having to deal with simple and uncultivated minds in the character of labourers, has for one of his objects, and that a constant one, the rendering the conception of the operations to be performed, and the instruments to be employed, in his manufacture, as correct and complete as possible, and employs his endeavours accordingly.

In the case of the manufacturers of judgemade law, interest being directly opposite, endeavours have of course been correspondently opposite, and results equally so.

Whatsoever may have been the course of endeavour—whether with or against the stream of interest—the result is, at any rate, equally and indisputably notorious. The demand for instruction, and consequently for “experience,” and consequently for permanence, being then so much greater in the cases in which his Lordship was not led to bring it to view, than in the cases in which he was led to bring it to view, and has brought it to view accordingly, this demand covering the whole field of law in general, and that of libel law in particular, what his Lordship’s opinions and wishes are and have been—what his Lordship’s endeavours, on all favourable occasions, may with justice be inferred and presumed to have been, and to be about to be—need not surely be particularized.

“This reason of yours—viz. the demand for experience—will you abide by it, or desert it? Desert it, there is an end of the matter, and your conduct remains without excuse. If you abide by it, will you abide by it wherever it applies with equal force? If no, there again you desert it:—if yes, you then mean to carry it, upon occasion, over the whole field of special-jury trial, and, in particular, over that part which regards libel law. Meaning to carry it over the whole of that field of jury-trial, and, in particular, over that part which regards libel law, in packing into a standing board a set of dependent commissioners, habited like jurymen, for service in your own court, that is, for Exchequer service, it has then been your meaning to enlist and discipline them for King’s Bench service.”

Such, in conclusion, are the questions and observations that might be addressed to the pre-eminently learned author of this defence, and, as it should seem, not altogether without some prospect of effect, if the forms of the constitution were anything better than a cloak for despotism, and if responsibility were, in fact, among the attributes of an English judge.

§ 8.

Lawful Improvement—Track it would have proceeded in.

Now, suppose again, for argument sake, it had pleased this pre-eminently learned judge to “think it worth while” to allow to King, Lords, and Commons respectively, their several votes in relation to this business; more particularly to the Commons, whose attention is, or used to be, considered as, in a more particular degree, bespoken for regulations affecting the revenue.

In the House of Commons, besides the committees of the whole house, there would probably have been appointed some select committee for the purpose. Thus appointed, the committee would have set itself to work, and begun with analyzing the general conception thus formed by the ingenuity of the learned judge:—decomposing it, they would have resolved it into such particulars as may be found involved in it:—particulars, the number of which is determined by that of the several “manufactures, the practice of which has, under favour of that permanence which forms so really useful an attribute of the judicial seats, been brought under the dominion of his Lordship’s science. The analysis thus performed, they would, in the instance of each such manufacture, have proceeded to inquire into the truth and accuracy of that general conception, and into the degree of force with which, in each instance, the argument deduced from it, in defence of a select and permanent board, in preference to a fortuitously determined and ever-changing jury, may be found applicable.

Supposing that in each one, or in this or that part of the whole number of these manufactures, the quantity of instruction necessary to the giving the requisite assurance of a right verdict, had respectively appeared so great, that the quantity of time, capable of being allotted to one trial by jury, could not with propriety be considered as sufficient for imbibing it, then, and not till then, would it remain for the consideration of the committee, whether, for the obtainment of whatsoever increased probability of correct judicature appeared capable of being obtained by the proposed substitution, it would really be worth while that an innovation applying to so important a part of the constitution should be introduced.

Supposing this question determined in the affirmative, then would come upon the carpet, for the consideration of the committee, the question concerning the organization of the permanent board or bench of judges, by which alone, in the sorts of causes in question, correct justice is, by the supposition, capable of being administered.

Satisfied, let us even suppose then, that, by a jury, justice in this behalf was incapable of being done, would any such determination be formed by them—would any such idea be so much as proposed to them, as that of giving the name of a jury to a body of men in which it had been predetermined that none of the properties of a jury should be found? Would they—these representatives of the people—bring themselves to attempt putting any such imposition upon their constituents? I hope, and dare believe, they would not. Deceit like this belongs to none but a class of men trained up in the application and formation of that art and science which is from beginning to end the art and science of imposture.

Such as above, or something like it, is the course taken by King, Lords, and Commons, when to them it seems good to take upon them to make laws; to make laws, taking, as they must be content to do, their chance for seeing, or, if it be more convenient to them, for avoiding to see, those laws overruled:—overruled, indeed, but happily always by men of transcendent science, by whom, without the trouble of studying it, the business of legislation is so much better understood.

But King, Lords, and Commons, are a dull and slow-paced set;—determining nothing about facts, till after they have been poring over, as well as prying into, facts. How much more easily are these things managed by a learned judge! When, at any time, he “thinks it worth while” to make a law, it need cost him but a word: nor be it necessary even to that word to contain thought, or any such heavy matter, at the bottom of it.

Another thing might, in this case, be affirmed with some assurance: viz. that were parliament, at this time of day, to think fit to appoint for this (not to speak of any other) purpose, instead of a jury, a permanent board,—in that case, into the organization of any such board, no such barbarous and flagitious feature would now be introduced, as should put it into the power of any one dishonest member to overrule, by his own single will, the opinion, and consequent will, of eleven honest ones.

Parliament would, in this case, do in this particular, as it did in the case of the judicatory established by the Grenville act: which judicatory cannot be defensible, but upon the supposition that what, in the case of jury-trial, is called unanimity, is indefensible.

CHAPTER V.

SPECIAL JURY CORRUPTION—DEVICES BY WHICH IT WAS PROTECTED.

§ 1.

Device 1—Leaving to Judges a covert ground for refusing to apply the act.

We come now to account for the flaw, observable, though, by our triad of learned persons, not observed, in the reforming statute (3 Geo. II. c. 25)—I mean its inapplicability to the principal, the new-invented, and most conveniently-framed seat of corruption viz. the special sort of jury.

So far as concerned the trial of causes, the use, and the only use, of a jury was, as there has so often been occasion to observe, the operating as a check to arbitrary power in the hands of judges. This intended and supposed check, by the invention of the sort of jury called a special jury, and to the extent of the application capable of being made of it, they had already, and before the passing of this act, given to themselves the faculty of converting into an instrument: the determination of the individuals of whom, in the instance of this novel species of jury, the tribunal should, on each occasion, be composed, being taken by them out of the proper hands, and virtually into their own, viz. by being vested immediately in the hands of the permanent officer, whom, on that account, there has been such frequent occasion to designate by the appellation of master packer—their own dependent and subordinate.

Abuses respecting the appointment of jurors—of jurors of all descriptions, and for all occasions—corruptions too flagrant to be any longer endured in silence—having engaged at length the attention of the legislature, the necessity of doing something had, to the conviction of the learned fraternity, become inevitable.

In this emergency, it became their manifest interest, and consequently their care, so to order matters, that whatever it should be found necessary to do, or suffer to be done, for the prevention of abuse in the appointment of juries, should be confined to common juries, and should not, either by design or through inadvertence, be extended to those juries of their own nomination—viz. to special juries: but that, on the contrary, every pretext and every opportunity should be embraced, for giving, to the application of so convenient an instrument, every extension of which it might be found susceptible.

At the same time, this invention of their’s being incontestably repugnant to the universally-recognised principles of the constitution, it became a matter of prime importance, that, of whatsoever should be done for the extension or even for the preservation of it, the true nature and operation should be kept as effectually concealed and disguised as possible.

The remedy, therefore, whatsoever it might be, was to be made to possess two characters; viz. an ostensible one, and a secret one: in its ostensible character, it was to bear upon all juries without distinction: in its secret character, it was so to be contrived, that, if at any time any untoward accident should happen to call for its being carried into execution and effect, it should, in the case of a special jury, be found inapplicable: which sort of jury should consequently remain the seat of corruption and abuse in every convenient shape, notwithstanding any success which, in the instance of the ordinary and vulgar sort of jury, might have attended the measures taken for the extirpation of those mischiefs.

For this purpose various devices, part old part new, were set to work. An old established one was—the rule they had long before contrived to establish—viz. that the crown (i. e. as many members of government as could contrive to get their interests included under that name) was never to be considered as bound by any act of parliament, unless expressly mentioned in it, which of course all persons interested would, on each occasion, take care that, if possible, it should not be.

By this rule alone, a great part of the design was already accomplished to their hands; for, by this rule alone, special juries, with the benefit of an exemption from the obnoxious restrictions, which, under the proposed new law, operated as a bar to sinister choice and permanence, might have been preserved to all causes, in which, according to the established forms, the king was nominally a party.

But by this rule, if alone, the benefit of the exemption would not have been extended to all causes to which it should happen, to have been brought under the cognizance of special juries. Under this cognizance they had already, of their own authority, besides the above-mentioned criminal and other sorts of causes, brought in general all those which, in contradistinction to criminal, are termed by them civil causes, comprehending together almost all sorts of causes: and to this extension they had the assurance to ask, and the good fortune to obtain, the confirmation of the legislature, in and by this very act. (3 Geo. II. c. 25, § 15.)

To complete the imposition, it then became necessary to employ a further contrivance, for concealing from non-learned eyes the completeness of the exemption meant to be established.

The way in which they managed it is this:—In the case of a special jury, the jurors, instead of being determined as in the case of a common jury, were, as there has been such frequent occasion to observe—were, as they always had been—“nominated,” as the word is in the books of practice, by the officer of the court—the master. The master, then, for one at least, if not he alone, would have been the, or at least a, person, to whom, had the corrupt practice been in this case meant to be prevented, the prohibition would have been addressed.

But to apply to this branch of the corruption—to the branch which was under their own management—any sort of remedy, was no part of their intention. Care was accordingly taken, that, to the effect in question, neither to this officer, nor to any other officer, by the staying of whose hand that part of the plague which was of their own nursing would be staid or checked, should the prohibition in question, or any prohibition, be addressed.

In the case of a common jury, the sheriff, as above observed, was the person by whom, out of a much more numerous assemblage, supplied to him under legal rules, by other hands (in the first instance by the constable of the several townships) the choice was made. Corruption having risen to such a pitch, that the cries of the public had become troublesome, it was become necessary that the mischief should, in some quarter or other, receive a check.

Common juries were the sort of juries in whose instance, in comparison of special juries, the preservation of the faculty of corruption was, to the purposes of the judges, and the other lawyers, of least importance: the sheriff, in whose hands the choice of jurors of this class was more immediately reposed, was an officer, on whose obsequiousness, regard being had to his impermanence, and comparative independence, they could not place any such reliance as upon that of the master, their own permanent subordinate.

The sheriff, it was accordingly determined—the sheriff, and he alone—should be included in the prohibition: the master, it was determined, should not be included in it.

Such being the determination, what was the contrivance employed for carrying it into effect? It consisted in the employing of such words, and one word in particular, viz. the word return, as, while to an unlearned eye they would appear to bear, alike in every case, upon the officer, be he who he might, upon whom, on each occasion, the composition of the reduced occasional list (see above, Part I. Ch. IV. § 3,) and thence, as far as depended upon him, that of the actually serving list (See above, Part. I. Ch. IV. § 3) depended, would be in case of litigation, and in the meantime, by learned and interested eyes, would be seen to be, in respect of the technical signification attached to the word return, incapable of bearing, in the case of a special jury, upon any such person, or in effect upon any person, at all: and thus it was that, for want of a person on whom the words in question could be found to bear, the supposed remedy was, in that case, to be rendered altogether inapplicable and without effect.

Such accordingly will be found to be the virtue of that convenient and aptly chosen word—the word return. The sheriff was and is the person, by whom, in all cases, what is called the return was and is made:—the return, i. e. the list of the persons summoned, or at least therein said by him to have been summoned, to serve on the occasion in question as jurors: which list was and is, in all cases, to be given in to the officer of the court.

The difference, in this respect, between the two cases, was and is—that in the case of common jurors, the persons chosen for jurors, were and are, a number of persons greater than 24 (the number contained in the case of a special jury in the reduced occasional list:) and so much greater than 24 as to constitute an aggregate out of which, in the case of a common jury, the actually serving lists for any number of causes, tried, as belonging to the county or other district in question, on the same occasion (viz. at the same assizes, sittings, or sessions,) are to be taken: and these are, all of them, of the sheriff’s own choosing, as above: in the case of special jurors, they are chosen by the officer of the court—the master—the master packer, out of a list furnished to him by the sheriff, being the same “gross list” that the sheriff himself has to choose out of: and the master having pitched upon the 24, sends an order, called a writ of distringas, inclosing the list (called the pannel) to the sheriff, who has nothing to do but to summon the persons contained in that same list, and thereupon, in his answer, called his return, to declare and certify his having so done.

Let it not for a moment be supposed, that on this occasion, in framing for themselves this valve of safety, on the part of these scientific and ingenious operators any such cause as inadvertence had any share. Return is the word by which they found the choice designated when made by the sheriff:—nominate, when made by the master, the officer of the court. That the sheriff never is said to “nominate” jurymen—that the master never is said to “return” jurymen—these are matters, neither of which could, to these learned persons, or any one of them, applying their thoughts to the subject, for a special and to themselves highly important purpose, have for a moment been a secret. Had it made any part of their intention, that special jurymen (the rich and well-paid jurymen, to whom alone the exemption could have been of no use) should stand exempted from the over-frequent service, as well as common jurymen (the comparatively poor and unpaid jurymen, to whom alone the exemption could be of any use,) in this case, to the word designative of the act of the sheriff, by whom common jurymen are chosen, they would have added the word designative of the act of the master, by whom special jurymen are chosen:—to the word “return,” when employed for the description of the act meant in this case to be prohibited, they would have added the word “strike,” or the word “nominate.” But their design being the reverse of this, such accordingly was the language employed by them in the execution of it. To the “return”—the reiterated return—of jurors, in the case of over-served jurors, the prohibition they framed was accordingly confined: to the nomination—the reiterated nomination—of jurors in the same case, the prohibition was not extended.

To make it clear, upon occasion, that, in the provisions against package, permanence, and corruption, it could not have been the intention of this act to comprehend the case of special juries, another argument was provided.

When a prohibition is addressed to a man, care is usually taken, that, in some way or other, he should find a motive for conforming to it. The operation meant to be restricted being the act of the sheriff, and he the person to whom the prohibition is accordingly addressed, to constitute such motive, an eventual penalty, bearing upon the conduct of the sheriff, is appointed, and denounced accordingly in the act: to the master, of course, no such, nor any other eventual penalty, is denounced.

Now, from this omission, if the prohibition is understood to apply to the case of a special jury, results a sort of incongruity, by which the intention of the legislature, under the guidance of these learned persons, to exempt the master packer’s corps of dependent special jurors from being disbanded along with the common jury corps, is put still more effectually out of doubt. [Editor: illegible word] in the prohibition, with the annexed penalty, put upon the official act, of which the service of over-served juries—viz. the too frequently reiterated jury-service in the instance of the same individual, would be the result—if in this prohibition special jurors are to be considered as comprised, one consequence is, that the sheriff would, in case of prosecution, have to pay the penalty for an act done in obedience to orders made by the master, and contained in the writ, called a distringas, issued by authority of the court: for, as hath been seen, it is, in the case of a special jury, by the master, each time that the twenty-four persons to be summoned by the sheriff to serve on that jury are nominated, and as such included in the writ, as above, sent by him to the sheriff. Now then, to make a supposition, instead of leaving, between their times of service, the interval appointed by the act in the case of common jurymen, let the master, in the case of two special juries who are to serve on two immediately following occasions, compose the two lists altogether of the same persons. This, if the prohibition in question is to be understood as meant to comprehend special juries, is a direct transgression against the act.

On this supposition, though it is by the master (the officer of the court) that the offence is committed, it is not by the master, but by another person, the sheriff, that the penalty is to be paid. Such injustice, it would naturally be argued, cannot reasonably be supposed to have been the intention of the legislature. Therefore, concludes the argument, be the remedy what it may, it was no part of the intention of the legislature, that it should be applied to the case of special juries. And the inference being, if not strong enough to impose an obligation upon an unwilling judge, quite strong enough at the least to afford a sufficient warrant to a willing one, the eventual inapplicability of the remedy to the case in which it is most wanted, may, without much violence done to probability, be concluded.

From these provisions against package and permanence, provisions which ought in reason to have applied in common to both sorts of juries, and which accordingly were in appearance made applicable in common to both sorts, the sort called a special jury was thus in reality exempted:—which was the thing to be done.

§ 2.

Device 2—Rendering it unadvisable for a Sheriff to resist the Packing.

Possessed with the now antiquated notions about the importance of real jury trial to liberty, a meddling sheriff (it might at that time of day have been apprehended) might at one time or other start up, who, in the case of special juries, observing juries packed, and formed into a standing corps, in opposition to what might appear to him to have been the intention of the act, might, in relation to this most important application of it, feel disposed to use his endeavours to give effect to it.

For the repression of any such quixotism, it was expedient that provision should be made: and provision was made accordingly.

If, in the application of the act to special juries, he would have greater cause of fear in the event of his using his endeavours to give effect to it, than in the event of his contemning it, the conclusion was—and, it must be confessed, not an unnatural one—that no such endeavours would be used.

Contemning the act (it was accordingly contrived)—contemning the act in this particular, and thus leaving the system of package and permanence undisturbed—he would run no greater nor other risk, than that of having to pay a limited, and that at the utmost a minute, penalty:—a petty sum not exceeding £5 (3 Geo. II. c. 25, § 4.) Supporting the act, he would, in the instance in question (for so also it was contrived) find himself to be committing an offence—an offence called a contempt of court—and thereby subjecting himself to a mass of punishment altogether unlimited, and which, taking into account costs of defence, whether unsuccessful or successful, could not but amount to many times the amount of the penalty in the other case, as above. For, if the master, as above, puts into a list of special jurors (a list settled by him as above) any number of over-served special jurors, the order, given thereupon to the sheriff, to return those along with the other special jurors, is a writ or order of the court, disobedience to that writ or order an offence called a contempt of court, and the punishment inflictable for that offence, imprisonment for a time altogether unlimited, with or without nobody knows what beside.

At the worst, what was made clear was, that in leaving the act, in this respect, in a state of nullity, and the system of package and permanence undisturbed, he could not have anything to apprehend. Called to account (suppose him in any way, though by whom should he be called to account?) for having returned this or that over-served special-juryman: “The court,” he would have to say, “sent me a list of twenty-four persons to be summoned and returned by me to serve as jurors upon this cause, and this man’s name was upon the list:—how, then, could I have done otherwise? Had I omitted him, the court would have punished me as for a contempt.” Thus much aloud. Continuing the conversation to himself—“The king in parliament,” he would naturally say, “may, for aught I know, have forbidden me to return this man: but what I am sure of is—that my Lord Chief Justice has commanded me. Disobeying my Lord Chief Justice, the king (I am sure) would not protect me:—disobeying the king, my Lord Chief Justice (I have reason to think) will protect me. ‘No man can serve two masters;’ two oppositely-commanding masters: a prudent man will serve the strongest:—my Lord Chief Justice being the strongest, my obedience is for my Lord Chief Justice.”

§ 3.

Device 3.—Concealing the Power of Nomination given to the Master Packer.

Another exertion of lawyercraft may be seen in the care taken to throw a veil of concealment over the arbitrariness of the power exercised by the master in the nomination of special jurors. It is by him alone (as we have seen) that the “nomination”—the choice—of the forty-eight is made. Whatsoever appearance of judicial audience and impartiality it might, in the year 1777, and in a case of so much expectation and publicity as Mr. Horne Tooke’s case (See Part I. Ch. VIII. p. 96,) and under a judge no less remarkable for timidity than for arbitrariness, have been deemed advisable to assume, at this time of day, such is the progress that has been made, this arbitrariness may be seen stated without disguise in the books of practice—books written by lawyers for the information of none but lawyers, and without any apprehension of any such jealous eye as, by accident, might be cast on the business in the House of Commons. In the act 3 Geo. II. c. 25, § 15, how is the description given of this operation worded? Answer—in such manner as to convey the conception, that the choice was made somehow or other by somebody else, and that auspices were all that were contributed on this occasion by this judicial personage.—“Required upon motion as aforesaid” . . . (says the act) “to order and appoint a jury to be struck before the proper officer of each respective court.” Before is the word: and false as is the conception that will naturally be conveyed by it, yet so artfully is it chosen, that no charge of impropriety would be found to attach upon it. By this proper officer, it is true, are the forty-eight nominated in the first instance: but then the jury is not said to be struck, that is, the determination of the individuals that are to compose it completed, till, out of the forty-eight, twenty-four are struck off by other hands: viz. twelve by the attorney on each side.

By, and not before (it may indeed be observed,) is, however, the word employed in another part of this same act (§ 17.) But, nemo mortalium omnibus horis sapit: and, as every act of parliament is, or is liable to be, a pasticcio, nothing is more likely than that the clause with before in it, should have been the work of one hand, that with by in it, of another.

§ 4.

Learned Advice given accordingly to Sheriff Phillips.

Thus it was, that this act, which, at a time of ferment, and in the view of allaying the ferment, was, in show and pretence, provided in the character of a check to corruption in the case of jurors in general, special as well as common, was at the same time, in the case in which the mischief of the corruption was at beyond comparison the highest pitch (being the case wherein the interest which its pretended extirpators had in maintaining and increasing it was also at the same high pitch,) converted, as in the case of the lately-exhibited remedy against parliamentary corruption—converted, by suitable management, and with the happiest success—into a means of not only perpetuating, but aggravating the disease.

Of the state of things here depicted—of the nullity of the power of parliament—of the real supremacy of the judges—of this state of things, the living oracles, to whom Sir Richard Phillips, as above, had, at different times, betaken himself for advice, were, both of them, as will be seen, duly sensible.

This sheriff, being one of the speculative kind of men above supposed—ignorant, as all such men are—ignorant of the real state of existing circumstances—had been amusing himself with the fancy that King George is our king: that in consequence, disobeying King George, a man would be in peril, and that to obey him was the way, and only way, to be safe.

These learned persons knew, both of them, better things. “Your King George,” said they, “(to let you into the secret) is King Log: jump upon him, do anything else upon him you please.—King Ellenborough, King Mansfield, King Macdonald, these are your real ‘kings:’ these, should you venture to disobey but the least of them, you will find him a King Stork. As to your King George, to appeal to the laws of that nominal king, in justification of an act of disobedience committed against the orders of any of these real kings,—doing so, you would but make bad worse: doing so, you would but aggravate disobedience by ‘contempt:’ you might as well appeal to Bonaparte.”

Such was their advice: and very good, and, as the Lord Chief Baron says of it, “perfectly just” advice it was. The language in which they gave it was of course their own language—their own branch of the flash language: but the above is the honest English of it. As for the speculatist, the reformer, he found means to understand it, notwithstanding his ignorance: accordingly by these lanterns were his feet directed, as well as his paths lighted.

As to the Lord Chief Baron—so little in use have he and his learned colleagues been, to consider an act of parliament as anything, when their practice or their pleasure has been contrary to it, to him it was all the same whether, in the case of special jurors, the package and the permanence had or had not been prohibited by the act: the exemption provided in that case having been a covert one, it had escaped his observation, and he determined accordingly to conduct himself as it seemed to him, in disobedience to the law.

But to the sheriff, who, had he taken upon himself to give effect to what seemed to him to be the intention of the legislature, would have had to expose himself to the resentment of the judges, it was matter of serious anxiety to endeavour to ascertain what support he might promise himself from the letter as well as from the spirit of the law. The learned framers of this law, not having as yet attained for themselves, nor daring to promise to themselves, for their successors, any such complete and dauntless assurance, as hath now been declared by their existing successors, had made provision of their covert exemptions and loop-holes, as above: and of these loop-holes, our intended Curtius, the reforming sheriff, though he did not receive a perfectly complete or correct draught, received an intimation sufficiently instructive to save him from leaping, to no purpose, into the gulph into which he had been prepared to throw himself.

Thus in the way of useful instruction—instruction which, howsoever speculative, may at any time be made to lead to a practical purpose—the quantity of written matter unavoidably expended upon this contrivance in the art of packing may be turned to as extensive an account as possible. I would recommend it to your consideration, gentle reader, in the character of a sample of the mode in which, in matters of law, the public has been always served, and may always expect to be served, till by such service the destruction of society is completed, so long as, according to the existing order of things, it continues in the line of legislative penmanship to be served by lawyers, meaning fee-fed lawyers: it will continue to be served as hitherto it has been served—always with the same honesty—always with the same views—always with the same effect.

§ 5.

Special Jury System—just suspicion entertained of it.

That all the artifice that could be mustered for the occasion was not more than the urgences of the case required, may be collected from the particular recital prefixed, by way of preamble, to this very clause:—a recital from which it appears, that the indiscriminate extension of the special jury system to all causes, at the pleasure of the party on either side of the cause, had not been regarded altogether without distrust and opposition. “And whereas some doubt” (says that preamble, 3 Geo. II. c. 25, § 15,) “hath been conceived touching the power of his Majesty’s courts of law at Westminster, to appoint juries to be struck before the clerk of the crown, master of the office, prothonotaries, or other proper officers of such respective courts, for the trial of issues depending in the said courts, without the consent of the prosecutor or parties concerned in the prosecution or suit there depending, unless such issues are to be tried at the bar of the same courts.” Thus far the preamble: and then comes the enacting part, still preserving the word before, and giving to the party on either side the power to force upon his adversary the sort of judicatory thus corrupted.

As to “doubt,” if we may believe what is said in the report of a case determined in the year 1737, about seven years after the passing of this act, there could be no doubt in the case: the contrary to what is here insinuated was true beyond all doubt. No more than about four years before the passing of the act, a search had been made in this view: in thirty years then last past, that is, from about the year 1695 to about the year 1725, no instance of the ordering a special jury without consent of parties on both sides had been found: nor is it said that any instance had been found anterior to that period. Notices of the existence of such a power had indeed been now and then thrown out, but which, if that statement be believed (and no reason can be found why it should not,) were without any foundation either in regulation or in practice: were thrown out, and not being true in fact, it seems difficult to imagine with what view they could have been thrown out, unless it were with the view of paving the way for this statute.*

§ 6.

Harmony between the Astutia of 1730, and do. of 1808.

We come now to an observation, which brings the consideration of the so long ago enacted statute within the limits of the present epoch: I mean the use which, on the occasion in question, appears to have been made of it, by the Lord Chief Baron, with the privity of course, and consent, all along, of his learned and reverend colleagues.

The deficiency by which, in respect of the clause prohibitive of permanence, the act was and is rendered inapplicable to the subject of special juries, had probably been observed and understood, but was not thought fit to be indicated: it was not to be indicated—why? lest peradventure, attracting parliamentary notice, it should be supplied.

But, to the sheriff, in pursuance of the advice that had been given him, viz. from the temple, it might have happened to bring the question before the court, viz. in the mode, in and by that advice recommended. If so, his lordship and their lordships were ready for him. On arguing the matter on the ground of the statute, its originally intended inefficiency as to this point would have been brought to light. Though not perhaps through malice, the would-be reformer would have been found a trespasser: and, in addition to costs (costs got by him in the negative sense,) in addition to such his costs, accompanied with a reasonable dose of contempt in the form either of avowed contempt or pity, he would have got his labour for his pains.

Against the hypothesis thus advanced, this or that passage may be objected, in which the prudence of the serpent does not appear quite so conspicuous as the simplicity of the dove.

But should the fact be even admitted, the inference has no need to be admitted along with it. In a line of action to which a man is accustomed, the most consummate skill is not incompatible with equally consummate awkwardness in a line to which he is strange.

The line to which an English lawyer, and in particular an English judge, is accustomed, is that of making the most of the abuses, of which the common, alias unwritten, law, and in particular that branch of it which regards judicial procedure, has been made up, viz. by the hands, and for the benefit of his predecessors: of making his advantage of them on every occasion, of defending them as often as it may happen to them to be attacked: opposing every effectual remedy, and, as often as remedial measures cannot be kept out altogether, infusing, into such as are forced in, as large a proportion of insufficiency and mischievousness, as it may be found possible and prudent to introduce.

The line which is altogether strange to him, is the line of honest and beneficial legislation: including the abolition of such mischievous and inefficient arrangements as may happen to have taken place already as above. Accordingly, it is not by mere ill will—the immediate result of adverse interest—that a true-bred English lawyer, bred in the school of Coke and Blackstone, is prevented from doing anything well in the line of honest and beneficial legislation: it is moreover by genuine and unaffected dimsightedness and awkwardness.

Even though the task to be performed were of no stranger a complexion than that of making a pair of shoes, the most expert as well as learned and eloquent advocate that ever pleaded at an English bar, or judge that ever sat upon an English bench, would probably find it matter of extreme difficulty to make with his own hands any such article. But supposing the task to be the making of a code of laws, in such case, even though by some strange revolution or metamorphosis he were on a sudden to become personally reconciled to it, he would find much less difficulty in the making of a pair of shoes than in the making of any such code of laws as should prove to be (supposing such to be the quality required to be given to it) a really useful instrument in the hand of impartial, undilatory, unvexations, and unexpensive justice. In the making of the shoes, nothing more irksome could have happened to him than the employing, in so relatively useless and unprofitable a work, the necessary quantity of labour and time: from the very first stitch to the very last, he would not have found himself under any such unpleasant necessity as that of violating any maxim or opinion he had been accustomed to regard with affection and respect, or acting in opposition to the interests, opinions, or feelings of any of his friends. In the making of the beneficial body of the laws, he would not only have to lament, at every stroke of the pen, the misapplication of so much labour and time, but at every other line he would feel himself running counter to some such favourite maxim or opinion, as well as running counter to the interests, diminishing the profits, disturbing the ease, lowering the reputation, galling the pride, and, in the words of Lord Ellenborough’s libel law, “hurting,” “prejudicing,” “injuring,” and “violating,” the “feelings” of the companions of his youth, and most familiar friends.

He would find himself, or, as now we say, feel himself, running counter to that which, in lieu of the once universally pursued, or professed to be pursued, but now antiquated and exploded end and object—viz. the greatest happiness of the greatest number, has now of late openly, deliberately, and in black and white, been avowed and acknowledged as and for the permanent end and object—if not of all government, of the government of his Majesty’s most favoured set of servants—viz. the preserving from “hurt,” “prejudice,” “injury,” “violation,” and every other such unpleasant accident, the feelings of “great characters,” in “high situations.”*

CHAPTER VI.

LEARNED ADVICE FROM THE TEMPLE.

Learned advice, in the shape of a letter from the Temple, having, on this occasion, borne no inconsiderable part in the business, viz. partly as having afforded guidance to the sheriff, partly as having helped to afford legal notice to, and been honoured by the declared approbation of the Lord Chief Baron, the reader will probably expect to see it laid before him here, instead of his being sent in quest of it to another publication.

I proceed, therefore, to exhibit a copy of it, subjoining, in the form of notes, a few observations, of the propriety of which the reader will judge.

“TO MR. SHERIFF PHILLIPS.

“Dear Sir,—

I agree with you in thinking, that the clause referred to in the inclosed act of parliament applies to special as well as common jurymen;*for if it be inconvenient† for the latter to attend oftener than the act requires, it must be much more so to the former, on account of their rank and station in life.‡

“But with regard to the sheriff, I think there is a very material distinction between common and special juries. With respect to the former, the returning them upon the venire facias rests with the sheriff; and as he is required by the 5th section of the statute 3 Geo. II. c. 25 to enter or register in a book to be kept for that purpose, the names of such persons as shall be summoned, and serve as jurors on trials at Nisi Prius, with their additions and places of abode, and also the times of their services, so I think that if he were to return any persons to serve as common jurymen oftener than he ought, he would be liable to the penalties of the statute; but with respect to special juries, they are struck before the master of the King’s Bench, and the remembrancer in the Exchequer, under the 13th section of the above act of parliament, which declares that the jury so struck shall be the jury returned for the trial of the issue; and accordingly their names are specially inserted in the distringas. If the sheriff, therefore, who has nothing further to do with the striking of special juries, than attending with the freeholders’ book out of which their names are taken, were to object to the nomination of such as had before served within the limited time, and his objections were overruled, he would not, I think, be liable to any penalty for summoning them upon the distringas; and indeed, if he were to refuse to do so, he might incur a contempt of the court, who would not suffer their process to be disputed* in the execution of it by the sheriff. If you should think it worth your while,† however, to rectify‡ the practice which has obtained, of calling so often upon special jurymen to attend at Nisi Prius, the proper mode, I conceive, would be, when you attend with the freeholders’ book for the purpose of striking a special jury, to carry with you the book containing the names of such persons as have already served within the last two terms or vacations, and apprize the master or remembrancer* thereof, requiring him not to nominate them afresh; and if he does, you might try the effect of an application to the court to set aside the nomination, or have others nominated in lieu of those who had served before, on the ground that you might otherwise by possibility be subject to a penalty for summoning them. By this means the opinion of the court would be obtained,† and they would probably direct their officers to alter the practice‡ in future.

“It would not, I think, be prudent for you to hazard the incurring a contempt of the court by not summoning any of the jurors named in the distringas, on the ground of their having served before within the limited time; particularly as you would not, I conceive, for the reasons I have given, be liable to a penalty for summoning them; and though the jurors who had served before might be excused from serving again, on producing to you a certificate∥ of their former attendance, yet, I think, that the judge at Nisi Prius would not be inclined to fine the officer who had not¶ nominated them.—I remain, dear Sir, your obedient servant, * * * * * *.”

Temple, March 10, 1808.

CHAPTER VII.

ADVICE FROM LINCOLN’S-INN.

§ 1.

This Letter, why introduced here.

Theauthority of the learned gentleman, who dates from Lincoln’s-Inn, stands upon a footing very different from that of his learned brother, who dates from the Temple:—a very different footing—and it must be confessed, a very inferior one. Both luminaries are indeed alike eclipsed by stars, such as * * * * *: and, by this common occultation, both are placed in the scale of authority thus far on the same level. But the Templar, whose “observations” are so “perfectly just,” is by this adoption become the child of, or rather quoad hoc one person with, the pre-eminently learned judge: to the purpose of the present inquiry, he is in effect Lord Chief Baron: while his learned brother on the other side of Fleet-street, less fortunate in the date of the application made to him, missed thereby the having been admitted to so much as a chance of so honourable an advantage.

Why then introduce him, or his letter, here? says a natural question, and by no means an irrelevant one. The answer is—because it is upon the evidence of this gentleman that the existence of the guinea-corps, and the notoriety of such its appellation, rest.

As to his title to credence—a remark that has been made already is—how improbable it is, that if a matter of fact, stated as notorious, were not really so, it should be mentioned as such by a professional man circumstanced as this gentleman appears to be. True it is, that from the mention made by him of this guinea-corps, a suspicion might arise, that feelings were harboured by him, heretical and rebellious as towards the powers that be: and that it was for the gratification of these wicked feelings that he had trumped up this story about the guinea-corps, that statement having in fact no truth in it.

But, for the clearing of his character, in which, so far as concerns evidentiary trust-worthiness, the character of this inquiry is, in some measure, involved, I feel it incumbent on me to show, which I shall do in proper place, that in his feelings—I mean, in the feelings manifested in this his letter when taken in all its parts—there is nothing that does not harmonise with the purest jurisprudential orthodoxy: which being the case, it would be an injury done not only to this argument, but to the reputation and prospects of the gentleman himself, whoever he may be, if any suspicion were left unremoved, of his having anything in common, but the formal place of date, with any such reprobate as the author of these pages.

Not but that in this busy age, in which reform, as in the days of Balak and Balaam, prophecy is become contagious, he too (I mean the learned and practising gentleman,) as will be seen, is a reformer. But then his plan of reform is (as will also be seen,) in the style of the Perceval school, a temperate one: meaning by temperate, a remedy which shall either leave the disease as it found it, or by the blessing of the Almighty! (meaning the almighty of the No-Popery worship) make it worse.

After the necessary preface follows the learned letter in hæc verba, with a few occasional elucidations by another hand.

§ 2.

The Letter, with Annotations.

TO SIR RICHARD PHILLIPS.

Lincoln’s-Inn, Sept. 1, 1808.

“Dear Sir,—

Inclosed you will receive the act relating to the summoning of juries on trials at Nisi Prius, and the three letters* with the perusal of which you have favoured me.

“In respect to the act itself, it appears to have been passed with the sole intention of relieving those who are liable to serve on juries, from the inconvenience which they were before subject to, from their constant liability to be summoned from term to term, without any consideration or respect paid to the labour of their previous attendances, and it is most clear that it did not originate in any jealousy† entertained that men so summoned and serving, would fail to act uprightly between the parties.‡

“Mr. * * * *, than whom no man can be better informed on the subject, is perfectly clear and correct in his observations,* and in his statement of the manner in which special juries are struck.”

“One circumstance ought to be attended to, which must remove all suspicion† on this subject: it is this, that special juries are struck under an order of the court only,‡ and the practice is for the opposite solicitors to strike out a name alternately until the list is reduced to the proper number, so that it must be the fault of the defendant’s own solicitor, if he does not obtain a respectable list∥ for the trial of the issue.”

“If any serious inconvenience were to arise from the present practice of striking and summoning special juries in Middlesex, I apprehend that it is the proper province of the courts above to interfere and introduce a reform, without the interference of the sheriff, who has, as Mr. * * * * states (and in this he is supported by the statute,) nothing further to do with striking of special juries than to attend with the freeholders’ book, to enable the parties before the proper officer to fix upon such as are to be returned for the trial of the cause, and named in the distringas.

“As under these circumstances the sheriff cannot, by any possibility, in my opinion, be subject to any penalty for summoning the jurors named in the distringas, although they may have before served within the time limited in the general act; I do not think that the objection which you have taken is deserving of your further attention; but if you think it otherwise, the proper mode of obtaining the opinion of the courts on the subject is that which is pointed out by Mr. * * * *

“There is one reform,* however, which I conceive to be wholly within the power of the sheriff,† and that is, to correct the freeholders’ list, by expunging the names of all such persons who, from low situations in life, have crept into a little independence, and, by artifice and collusion with the inferior officers, get their names placed upon the freeholders’ lists with the proper additions, with a view principally to their adding to that independence‡ by the fees payable for their serving on special juries: I know several of this description, who are ludicrously described as being deeply concerned and interested in the guinea-trade,∥ and a diligent scrutiny, with the assistance of the returning officers, might lead to this reform.

“I do not, under this last observation, mean to insinuate that even such characters acting upon oath are likely to do wrong,* or that they do not possess sufficient powers of discrimination to decide rightly; but I think that the special jury fees should be received only in the way of compensation for actual expenses and loss of time, and not as matters of profit.†

CHAPTER VIII.

MAXIMS CONCERNING REFORM, DEDUCED FROM THE ABOVE LETTER.

§ 1.

The Maxims themselves.

The subject of reform being at present on the carpet, and a variety of opinions afloat, a few maxims or aphorisms, half a dozen or thereabouts, and containing the substance of so much of the above learned dissertation as regards that subject, may, perhaps, in these unsteady times, be found not altogether out of season.

Lest the eye of the reader’s mind should find itself incommoded by too strong a blaze of light bursting in upon it at once, to prepare it for the brilliancy of the more grand and comprehensive principles, I place in front a rule or two, confined in their extent to the only subject that belongs directly and necessarily to these pages—viz. the institution of special juries:—

1. When, for the execution of a plan repugnant to the acknowledged principles of the constitution, and to the equally acknowledged injunctions of an act of parliament, 48 persons have been selected, of whom, for the insuring the success of that plan, 12, or upon occasion a single one, are in every individual instance sufficient, the faculty of discarding 12 out of the 48 will, if lodged in proper hands, be, in every such instance, sufficient to defeat it.

For (says the Lincoln’s-Inn letter) “one circumstance . . . . must remove all suspicion on this subject: . . . . Special juries are struck under an order of the court only . . . . so that it must be the fault of the defendant’s own solicitor, if he does not obtain a respectable list for the trial of the issue.”

2. If, in the instance of a set of men of whom (except their being in possession, each of them, of a portion of property which may be insufficient for the maintenance of any one of them) nothing more is known than that they are, all of them, pensioners during pleasure under the authority on which theirs was intended and is said to serve as a check—if, in the instance of a set of petty placemen so circumstanced, there be any cause of apprehension, lest, on any occasion, they should manifest, as towards that authority, a degree of obsequiousness inconsistent with probity and independence—in such imaginary case, a sort of sanction which, as often as any real difference of opinion has had and continues to have place among them, is trodden under foot, would, as against such danger, or cause of apprehension, afford a sufficient security.

For “I do not” (says our learned adviser) “mean to insinuate, that even such characters, acting upon oath, are likely to do wrong:” “such characters,” viz. persons who, by this same learned gentleman, have just been described as “persons who from low situations in life have crept into a little independence, and by artifice and collusion with the inferior officers, get their names placed upon the freeholders’ list, with a view principally to their adding to that independence by the fees payable for their serving on special juries.”

3. If, in the whole expanse of the all-perfect system, it were possible that a particle of imperfection should anywhere be found, the imputation, in so far as it were just, would fall—no part of it on the most powerful, every part of it on the least powerful, of all the classes that could be found concerned in it: no part of it upon those under whose eye, and by whose authority, everything is done that is done, every part of it on those whose dependence on that authority is complete and absolute.

Accordingly, in the instance of the only reform, which is represented as lying within the power, of the only person in whose instance any inclination to that effect has been perceptible, the “reform” suggested consists in the “expunging the names of all such persons who from low situations in life have crept into a little independence.” Thus far the suggestion of the learned reformer: for the due understanding of which, it is necessary to be considered, that the consequence would be (nothing less being sufficient to insure its continuance,) that if in numbers sufficient for the purpose, persons sufficiently adapted to the purpose were not found remaining, other persons of the necessary complexion, and in sufficient number, would of course be taken in to fill up the gap.

4. Every man—so he be high enough—is a proper—and except others seated on the same level, and linked with him in the bands of the same interest, the only proper—judge in his own cause.

Accordingly, as we have seen, “it is the proper province of the court above,” (says our learned reformer who dates from Lincoln’s-Inn) “to interfere and introduce a reform.”

5. The hands by whose industry abuse has been created—by whose steadiness it has been preserved—and by which, whether created or only preserved by them, the profit has been, and continues to be, reaped—these are the hands at which the extirpation of it is to be sought.

6. When, for example, as long as he has been sitting on his bench, a judge has been in the habit of treading under foot, with open eyes, the authority of parliament, the judge himself is the proper authority to apply to, if you would have him cease doing so; parliament, not.

For the letter, in which the Lord Chief Baron’s determination to persevere in that same habit had been deliberately declared, makes one of “the three letters with the perusal of which” (says this learned gentleman to the sheriff) “you have favoured me.”

§ 2.

Corroborations from Lord Eldon’s Scotch Reform.

Such are the articles, which, in substance and effect, though not in words (for words are ever under the command of existing circumstances) constitute, so far as the most probable interpretation, or, as lawyers say, construction, which I have been able to find for the learned words in question may be found to be correct, part and parcel of this our lawyer’s creed.

I might have said the lawyer’s creed: for, as already intimated, with here and there a possible exception, too rare at any rate to be to such a purpose worth noticing, being all bred in the same learned school, all cast in the said learned mould, whoever sees one learned gentleman sees all: nor are these articles of the number of those, which, to obtain acceptance and adherence, require signature.

Thus much must be confessed—viz. that as yet it is only in so far as the individual learned mind in question can, with propriety, be deemed and taken as and for a fair sample of the genus, that the propositions in question can in their herein alleged character of articles of the lawyer’s creed, be with propriety received as genuine.

In that same character, as far as concerns reform of law abuses, can the genuineness of these articles find any man still sceptically enough disposed to doubt of it? Let him turn to the list of Commissioners for the Reform of Scottish Judicature. (See Report of their proceedings as printed for the use of the House of Commons, in pursuance of an order dated June 9, 1809.) Let him see with what religious care the name of every person is shut out, on whose part any the least desire to see defalcated any the least particle of abuse from a system composed wholly of abuse, had ever been perceptible; while those of the maintainers and defenders of the whole system are with correspondent carefulness collected and inserted.

Taking, for the basis of his calculation, the number of two-and-thirty reapers, let him admire and calculate how rich a harvest of reward is destined to be reaped by learned industry, occupied in the field of reform, in the accustomed course of learned husbandry.

From what they have done already, let him calculate what they are about to do. Let him pray—if haply into his religion be admitted any particle of regard for the welfare of the people, and the ends of justice—let him pray, that the ministers of such justice may, in the sense most beneficial to the country, be prevented in all their doings; that what has been begun in doubts may be continued and ended in the same; and that of these doubts, the distribution of the matter of reward throughout the mass of learned merit, may, as being to the country the least bitter, be the only fruit.

Let him behold in idea, and, if so it please him, in black and white, a judicatory,* in which a business occupies as many years as, in another sitting by the side of it,† the same business would occupy hours, or perhaps minutes, and these learned persons not hesitating to attach their signatures to an opinion that “the present forms are now, or by the authority of the court may easily be rendered, fully adequate for the purposes of justice and dispatch of business, without parliamentary interference,” (p. 4.)

Let him behold the signature of the author of Marmion annexed—not to a receipt for the profits of Marmion, but—to the produce of the learned labours of this constellation of learned commissioners, so worthy to have chosen the præses whom they chose—so worthy to be chosen, as in fact they had been chosen, by that præses.

Let him give thanks, that, to his other offices, the author of Marmion does not add that of calling up the late Earl, in the forenoon or the afternoon, and telling him what to do, as soon as official advice has been received that the enemy is within his lines.‡

After reading, as above, the history of the appointment and proceedings of the commissioners, let him, among the speeches of the Edinburgh advocates,∥ under the name of the author of Marmion, read a rhapsody of irrelevant buffoonery, in which he will not find a serious word, except what is employed in passing undiscriminating condemnation on every imaginable alleviation of judicial abuse: including, in such his condemnation, everything which the noble and learned institutor of this commission either has given it him, or, unless it were in whispers, could have given it him, in charge to promote.

In these public documents, including the above-quoted probationary ode in prose, which, if Lord Ellenborough’s ridicule-proscribing branch of libel law were applied to it, would be from beginning to end a libel—in these howsoever libellous as yet unpunished documents, having read what Lord Eldon intended should be done, and having predicted (as any man may do without the gift of prophecy) what will be done, let him give thanks, that no one of Bonaparte’s dukes is as yet known to have been invited over to replace the Duke of York: and that if, by that noble and learned oracle of the cabinet, advice to any such effect has ever really been given, doubts, of the nature of those clouds, which never cease to exhale from the same ever-pregnant source, continue for the present to hang over it.

Accordingly, amongst similar articles of information furnished by those same papers, may be found this (p. 4): viz. that, “at a general meeting,” (in Edinburgh) at which “the judges of the Court of Session were invited to attend . . . . several of the judges (18th March 1809) assisted . . . . when the meeting finally resolved, that . . . . the present forms are now, or by authority of the court itself may easily” (as easily as they always might have been) “be rendered fully adequate for the purposes of justice and dispatch of business, without parliamentary interference. And . . . . that the late division of the court . . . . has . . . . for the present removed the necessity of any further innovation upon the forms and constitution of the court.”

Finally, let him give thanks, if so it be that no commission of review or revision has as yet passed the seals, directed by his Majesty to his trusty and well-beloved James Crawfurd, John Brickwood, Allen Chatfield, John Bowles and Alexander Baxter, Esquires, nominating and appointing them to review and revise, and finally to audit and pass the accounts of them the said James Crawfurd, John Brickwood, Allen Chatfield, Alexander Baxter, and John Bowles.

CHAPTER IX.

TRANSACTIONS AT THE REMEMBRANCER’S.

§ 1.

The Transactions themselves.

We have thus far attended our knight on his negotiation—an epistolary one we have seen it was—with the Lord Chief Baron. We have moreover thus far seen the fruit of it:—instead of the justice called for, we have seen him put off with a figure of speech: a sarcasm some might call it, others an oxymoron, made at any rate out of an Italian epigram in the shape of an epitaph, and that so old as to have grown stale:—instead of the fish prayed for, a serpent given, and with a sting too in the tail of it, though perhaps not a very sharp one.

Let us now follow him to the packing office.

Whether it was that the advice couched in the epigram had not as yet been received, or, having been received, the eloquence of it had failed of producing the effect it looked for, so it was that our Quixote Sheriff took the irregular course of doing “better than well.” Besides the blame—for such it appeared to him—of acting, in the teeth not only of a principle of the constitution, but of an act of parliament, he saw, or thought he saw, a penalty of £5 for every transgression, impending over his head. Raw and uninstructed as he was in the practice of courts, led astray by a propensity to innovation, speculation, and the false philosophy of the times, a conceit possessed him that the tide of corruption ought rather to be stemmed than swum with, and that acts of the legislature were designed rather to be obeyed than to be contemned. Misled by theories, parliament, to his fancy, presented itself as superior to judges. It was not long before his error stared him in the face.

Under such impressions it must have been that, on a certain day to this compiler unknown,* our knight presented himself at the busiest of the two Exchequer packing offices—the office of the deputy remembrancer—with the freeholders’ book in his pocket: “having previously provided himself with a list of persons who had served . . . . within two terms:” viz. in the hope of preventing, if practicable, their serving again, till the time should come at which their service would not be an infringement of the prohibition, certainly pronounced by justice, and supposed to be pronounced by law.

Conceive who can, the surprise of Mr. Deputy Remembrancer, when, the figure of the sheriff appearing before him—and, with the list of over-served guinea-men in one hand, and the act of parliament, instead of a pistol, in the other, advancing upon him—he heard himself called upon, contrary to all precedent, to pay obedience to the law. This was rank innovation: this was plain jacobinism. Meantime, what was to be done? The sheriff with his instrument of terror was present: the reverend judge, with his instrument of support, his Italian tombstone, was not present.—Our Felix trembled.—The existence of the law was recognised, its application admitted, its authority submitted to: submitted to for the moment, though even then not altogether without wry faces. During the continuance of the ague fit, the instrument of terror being all the while in view, “two juries” were struck: and “in striking them, the official striker” was, “to a certain extent”—though only to a certain extent—influenced by this principle. Of the pockets which, cause after cause, and “term after term,” had been used to come and load themselves with guineas, some, though some only, were for the moment kept at home, kept at home for awhile to empty themselves, and make room for others: others made, of course, as nearly as they could be found, of the same materials, and of the same cut.*

Obsequiousness having thus been produced—but in a quarter, and in a direction, very different from that in which by law (I mean by the judicial makers of law) it had been intended, and been accustomed to be produced—a natural object of curiosity will be to know what length of time so extraordinary a phenomenon continued to have place.

The obsequiousness—the compliance continued just so long as the force by which it had been produced, viz. the instrument of terror above mentioned, continued to be applied. The acting force being removed, reaction regained the ascendent. The pliancy lasted but for two strikings: the principle of elasticity displayed itself, rigidity succeeded, and regularity (I mean what in Westminster-hall is meant by regularity, viz. regular disobedience to law) was restored.†

The cause of this return to regularity and social order lies at no great depth. Though, between the titular remembrancer of the Exchequer and his deputy, there exists, unless by accident, no more connexion than between the emoluments of his principal and the duty on pretence of which the emoluments are received, between the pre-eminently learned chief of that judicatory and his subordinate the aforesaid deputy, the intercourse is necessarily close and intimate.

§ 2.

Instruction gained—Definitions and Maxims.

Of two things one. Either in this office an act of parliament is felt in the character of a binding force, acting as a bridle upon private inclinations, or it is not: if it be, the consequence is—its force having, in the present instance, proved ultimately inefficient—some external force must have been employed in overpowering it; and if so, we see, without much danger of error, what that force was: but if not—if in that office an act of parliament is really not felt in the character of a binding force, what in that office is the state of justice?

In that office—thence (might have been added) in the court under which it acts—thence again—in the other courts in the view of which it acts:—but of this elsewhere.

Upon the whole, bench and office together—doctrine and practice together—doctrine leading practice, practice expounding doctrine—we may obtain, if not exactly that sort of instruction and satisfaction which an unlearned eye, unversed in the practice of courts, might be apt to look for—at any rate, a definition: a definition which, having for its subject a word of no scanty extent, and (relation being had to its extent, and the application given of it) of no mean importance, presents some claim to notice.

Well, considered as a quality of action—in any such phrase, for example, as acting well—is a relative term, involving in its import an implied reference to the situation of the person whose agency is considered.

On the part of a chief judge, notice having been received by him of an act of parliament prohibiting a certain practice, and the application of the act to that practice having been deliberately admitted, acting well consists in defending the practice in black and white, and after a momentary interruption, produced in another subordinate station by present urgency, causing it, or at least deliberately suffering it, to be resumed and continued as before.

On the part of a deputy remembrancer,—an officer occupying an office subordinate to that of the chief judge—acting well consists in acting, under the direction of the judge, in the maintenance and support of such supposed prohibited and illegal practice, and, after notice and recognition of the illegality, and a momentary stop put to the practice, resuming it, and with it the habit of considering the authority of a judge as superior to that of the legislature.

As to better than well, in the unanimous opinion of all the commentators, the use of the phrase is a flower of rhetoric—a figure of speech—some might call it oxymoron—others irong; the opinion intended to be inculcated being the reverse, or nearly so, of the meaning which on the face of the literal sense stands expressed. Ill is the meaning really intended to be inculcated; so that, upon the whole, the doctrine, meant in and by the epistle in question to be inculcated, may be comprised in two short and well-matched aphorisms or maxims:—he acts well, who violates the law: he acts ill, who either obeys it himself, or calls upon others to obey it.

[* ]The title of it is—“An Account of some Alterations and Amendments attempted in the Duty and Office of Sheriff of the County of Middlesex and Sheriffs of the City of London, during the Sheriffalty of Sir Barnard Turner, and Thomas Skinner, Esq.—London: Printed by Stephen Clark, No. 15, Brokers Row, Moorfields, 1784.” No bookseller’s name.

[* ]For terms and years together.] Here we see the notice given of the permanence.

The fact stated by the sheriff, and admitted and justified (as we shall see) by the Lord Chief Baron, is—not merely that in the special juries serving in his Lordship’s court, there have been, out of the twelve, an individual, or a few individuals, in whose instance this permanence has had place:—but that it is the whole body of special jurymen that, for the indefinitely long number of years in question, has been in this state of permanence.

In the composition, given in each instance, to the jury taken from this permanent body of jurors, some variation, though that but a “little variation,” is admitted by the sheriff: but, subject to this limitation, the non-variation is admitted by the Lord Chief Baron.

Of the difference between the several distinguishable lists, seven or thereabouts in number, that have place in the case of special jurors, an explanation has been given above. [Part I. Ch. IV. § 4.] Of the “little” variation in question, what, in the language of that explanation, is the result? Only that, to make allowance for casual non-attendance, and at the same time provide for general convenience (the convenience to wit of all persons who belong to any of those classes whose convenience is considered as entitled to regard,—i. e. all persons concerned but the suitors,) the select and secret qualified list is constantly larger than any actually serving list: in a word, that it contains some number above twelve: or, lest the arrangement should ever find itself disturbed by the intervention of casual interlopers, if put upon the reduced list, say four-and-twenty.

This select and secret qualified list is, to such actually serving list, what, in the East India direction the list composed of the directors actually in the direction at any given point of time, with the addition of all who ever have been in the direction, is to the list composed of the actual directors alone: with only this difference, viz. that the exclusion of supernumeraries, which, in the case of the East India direction, is determined by rotation, (subject to a prolongation of the exclusion in the instance of this or that individual, in so rare an event as a determination taken to that effect by a majority of proprietors,) is, in the case of the guinea board, determined partly perhaps by seniority upon the list, but partly, at any rate, by chance, as well as partly by choice.

Rendering the select and secret list no larger than the serving list, is an arrangement that stood prohibited by divers considerations:—

1. It would have rendered the duty too severe! it would have converted the bonus into a burthen—in the instance of every such member of the corps, with whose business or amusements such regular and unremitted attendance would not have suited: and it would thereby have excluded this or that useful member in whose instance the requisite obsequiousness, so often as it suited him to attend, might be depended upon.

2. The imposition would, in this form, have been too barefaced:—twelve persons, under the name of jurymen, sitting at all times without any variation, and thus forming a board no less manifestly permanent and unchanging than that of the twelve judges, could never have passed thus long under the name of a jury; no, not even under the habitual blindness, almost universally manifested to every the most flagrant abuse, which, having judges for its authors, is screened from scrutiny by the name of law.

[* ]Connivance or direction of the judges.]—This, as already intimated, turns out to be a complete mis-statement: though, as already intimated, a very pardonable one. Attributable—not to the “direction” of the judges?—just possible;—not to their “connivance?”—not possible.

The state of things here in question is that very state of things the existence of which (it has so often been observed) is not only admitted but justified by the chief judge, to whom that letter is addressed. That it had his ingenuity and industry for its efficient cause is not certain: but that its existence was known to him is certain: since, in declaring his approbation of it, he grounds that approbation on an experience of as long a standing as his own existence in the character of a public functionary.

Of such connivance does the existence require confirmation? Require, surely not: but confirmation, if a fact so firmly established can be rendered firmer, we shall find it receiving further on; viz. where the permanent system having, at the instance of this sheriff, been for the moment broken in upon, by the most fully employed of the Lord Chief Baron’s two master packers, was restored as soon as the sheriff’s back was turned.

[† ]Negligence or indifference in the proper officers.] Another mis-statement; but alike pardonable. By the chief judge, to whose authority the master packer is subject, the system having been, according to the judge’s own declaration, contemplated by him during a period of twenty-four years, and at the end of that term openly defended, whether, on the part of this subordinate, the acting up to this system could have been the result of “negligence,” or altogether matter of “indifference,” might be left to any one to pronounce. But whatsoever might, at the time of this letter, viz. 4th April 1808, have been the state of the official mind in question, that it was not long before a state altogether opposite to that of indifference had place, is demonstrated by the fact just spoken of, viz. the restoration of this state of things, so shortly after the day when, at the instance of the author of this letter, it had been suspended.

[‡ ]The solicitor (of the crown) is permitted to interpose.] In relation to the incident here spoken of, I suspect some want of clearness, if not of correctness, in the information, on which this part of the statement, thus made by the sheriff, was grounded:—

1. Not only in this, but in all the other packing offices (according to the practice, as stated in all the books,a ) the solicitor, as well on this side as on the other, has, to one purpose, a right—an acknowledged right—to interpose; viz. to the purpose of striking out his twelve, out of the forty-eight members of the gross occasional list, regularly nominated by the master packer.

2. This interposition of his—this interposition, considered by the sheriff, and by him denounced to the Lord Chief Baron, as a cause of partiality in the selection, at what stage of the process is it considered as taking place? At the time regularly appointed for mutual defalcation, if, by the exclusion of twelve out of the forty-eight, any apprehension, entertained by this solicitor, of a deficiency in the article of obsequiousness, would be satisfied, in such case all conversation, whether to the effect here spoken of, or to any other, is needless or superfluous.

3. That, the whole of this gross list being at the nomination of the master packer, any real danger of non-obsequiousness towards the crown side should exist, except in the extraordinary case of corruption successfully applied by the individual, the defendant, has been over and over again shown to be a state of things altogether improbable: that in that state of things any such danger should be so much as apprehended, seems not very probable. To what end, then, any such indirect and mendacious interference?

At what point of time? Antecedently to the declaration and production made of the gross occasional list—made, in form and ceremony, by the master packer (or his clerk) at the very time when, by the defalcation of 24, viz. 12 on each side, the number on that gross occasional list has just been brought down to the 24 on the reduced list? or not till after that time?

1. If antecedently, it would suppose, between the master packer, and the solicitor of the crown (the solicitor of the customs, for example, or the solicitor of the excise,) a perfect and collusive understanding: yet, at the same time, on the part of the solicitor, a fraudulent sort of language, such as would by that collusion have been rendered unnecessary. And moreover, this conversation being carried on secretly and collusively, between these two, at a private meeting, the solicitor on the other side not being present, how should it transpire? and not once only by accident, but, as here represented, habitually transpire?

2. The time at which insinuations of the sort in question have been made, suppose it now to have been the very time of the regular and tripartite meeting between the two opposite solicitors and the master packer, at his office. On this occasion, if from such insinuations any advantage could possibly be gained to the crown side, the case must be, that after the selection constantly made of the 48 by the master packer—all 48 being persons who cannot but have been put in for the purpose of affording and having an actually serving list, composed of persons who, “with little variation,” are in constant exercise—and therefore selected for the very purpose of producing that result, which, by the admission made by the Chief Baron, is proved to be actually and constantly produced—the case, I say, must be, that after a selection thus made, the faculty of striking out twelve names—twelve names out of a list so formed—has frequently, by the crown solicitor, been regarded as not yet sufficient for his purpose: and on this supposition, and this supposition alone, it is, that, in addition to the 12 duly put aside by him in the exercise of his right, some number of others have required to be unduly put aside, by means of the fraudulent insinuations here above supposed and mentioned.

This being the object, how then, at the time now in question, viz. that of the regular meeting, is it to be accomplished? Probability seems to be already out of the question: as to possibility there seems to be but one mode so much as possible, and that is this:—The list of 48 being produced by the master packer to the two solicitors, the crown solicitor takes it up and says—“This man” (speaking of A) “will not attend: should his name remain upon the reduced and summoned list? Putting him on this gross list is therefore of no use: out with him, then; and, to make up the 48, let us have somebody else.” This, speaking of A; and so on in regard to B, C, D, &c. whatever may be the number of those whom, on this supposition, it appears to him advisable to endeavour in this way to get rid of.

But while, by means of this insidious language, this fraudulent practice is carrying on—the defendant’s solicitor—what is he about all this while? “If this man, as you think, will not attend, then strike him out: or if you insist that the whole number to which your power of striking out extends shall remain to you undiminished, let me strike him out.” Such would, naturally—and, morally speaking, necessarily—be the language of the defendant’s solicitor, unless he too were in the league against his client’s interests and rights.

It is, I say, before the commencement of the operation of mutual erasure, that, at that tripartite meeting, any such conversation, if at all, must have been held:—for, after that operation, the 48 being, by the striking out of 12 on each side, reduced to the 24, with what colour of reason or honesty could the crown solicitor require—and on no other pretence than that of expected non-attendance—require, that A, and B, and so on, should be struck out of this reduced list?

“Why then did you leave his name in?” exclaims immediately the defendant’s solicitor: “and to what purpose strike it out now? Suppose his name left in; and therefore suppose him not to attend: where is the inconvenience? there remain still 23 others: and, if there were a hundred, 12 of them are as many as can serve. But if this man be now struck out, another man must now be put in: and, if another be now put in, I must have the option of striking him out, just as I should have had, had his name stood among the original 48.”

On this supposition, then, a serving list of 12, “composed with little variation of the same persons,” must have been the result of a gross list of 48, such as, though constantly formed by the master packer, to whom every one of their characters and habits of acting is by long experience so perfectly known, is notwithstanding so oddly constituted, that by striking out of the number any twelve that he pleases, the crown solicitor cannot yet, without increasing the discarded number by insidious practices, get such a jury as will be fit for his purpose. But instead of a constant good understanding between these two servants of the crown, this would suppose a constant conflict:—on the part of the master packer, disposition to thwart, on every occasion, the purposes of the crown solicitor; which object, after all, notwithstanding the existence of a power adequate to the effect, viz. the power of choosing the whole 48, is, according to all the evidence in the case, never compassed on any occasion.

Supposing, therefore (which I see no reason for not doing,) supposing such conversations to have really passed as the information given to the sheriff states to have passed, I cannot but conclude them to have been perfectly innocent: and that for this simple reason, that no point could be expected to be gained by them were they otherwise.

To what circumstance, then, attribute the mention thus made of them by the sheriff in this letter of his to the Lord Chief Baron? Evidently enough to this, viz. that the conception he had been led to form of the mischief fell thus far short of its real magnitude: the packing, which by the information he had received had been presented in the character of an irregular, and thence easily corrigible abuse, was, in truth, the result of regular and inveterate, and thence, unless by extraordinary measures, not corrigible, practice.

But under charges such as these, the curious circumstance is the silence of the judge. “A judicial officer under your dependence is habitually in league,” says the sheriff, “with the solicitor on one side; and, being so in league with him, leagued with him in a conspiracy against justice, permits him to set aside jurors, till he has got a jury to his mind.” “Well,” says the judge, says, I mean, by his silence—“well,” says the judge, “and if he does, what do I care?” nor yet merely by his silence; for with all this before him, we shall see him pronouncing it in express terms, and without exception or distinction, to be “well;” departure from it, better than well; meaning the opposite to well. Accordingly, in the course of the letter which we shall come to presently, we shall find his lordship speaking of certain results, which, being by his lordship regarded as beneficial, reconcile him most perfectly to the means, whatsoever they may be, by which they are effected: yes, whatsoever they may be; and although this collusion, partiality, and conspiracy against justice, had thus been alleged to be of the number.

All this while the statement was, to his lordship’s knowledge, in many points, incorrect. Why then bestow upon it this virtual admission? Because the real state of the practice was so much worse than the state thus ascribed to it. The assumed root ascribed to the corruption was nothing worse than casual irregularity; nor could the cause so assigned have been adequate to the production of the effect:—whereas the true root was, and is to be, found in regular and established practice: and that practice so ordered as to render the corruption sure: the nomination completely, as well as constantly and avowedly, made by an officer in the dependence of the judge. Observing the hound to be upon a wrong scent, the fox sat quiet while the enemy pursued his course.

[* ]Indifferently taken, and dictated by the officer of the court.] Consistently with the result, known to be produced—that result, to wit, the production of which is, as above, admitted and defended by the chief judge, viz. the “little variation,” and in effect the not much less than identity of the actually serving list, and thence the perfect identity of the select and secret list, the correct application of any such term as indifference does not, in any sense, appear practicable. Let it even be supposed that no crown solicitor ever takes any part in the business other than what the solicitor on the other side takes, here is still a package as completely effected by the master packer alone, as it could be by a legion of crown solicitors;—the jury—that body, the only supposed use of which is to serve as a check upon the judge, named on every occasion by the dependent of the judge.

[† ]The inclosed letter.] viz. the letter of the learned gentleman who dates from the Temple; whose “observations”—being, as we shall see, and without exception, pronounced by the Lord Chief Baron to be “perfectly just”—are, by that confirmation, adopted, and rendered part and parcel of his Lordship’s observations.

[* ]Mr.—’s observations were perfectly just.] These observations are those of the learned gentleman who dates from the Temple, as above: which observations have for their basis the opinion that the clause in question—viz. the clause having for its object the securing a constant change of jurymen—or, at any rate, the preventing the too frequent “returning to serve” the same juryman—“applies (to use his own words) to special as well as to common jurymen.” Such is the opinion with which the Lord Chief Baron declares his concurrence.

Here then is an act of parliament, which, in the opinion of the learned judge himself, was meant to prevent a man from serving in Middlesex, as a special juryman, so often as twice in the compass of three terms; and this practice it is, that, understanding it to be prohibited by act of parliament, the learned judge, having all along persevered in the countenancing of it, labours, as we shall see, in this letter, to preserve.

And now comes upon the carpet a circumstance of so whimsical a complexion, that the reader had need of some time to put his mind in order for the reception of it. Such is the fallibility of human learning, that notwithstanding the learned Templar’s “observations,” and the “perfect justness” of them, yet so it has happened, that in the pains we shall see him take to run counter to the intentions of an act of parliament, the learned judge was disappointed: the case being, that after all, on the part of the penner of that act, there was not, in truth, any such intention as that it should be construed to extend to special juries. This will be shown presently. But as to the contempt meant by the learned judge to be put upon the authority of parliament, that being an act of his own, and not at all affected by the intention of any other person or persons, such as the framers of that or any other act, we can do no otherwise than take his word for it.

In regard to falsehood, a known distinction among moralists is that between a logical falsehood, and an ethical one. Your logical falsehood is—where, for example, you speak of a thing which is not true as if it were true, whether you think it true or not: your ethical falsehood is—where you speak of a thing as true, believing it not to be true, whether it be really true or not.

The distinction thus suggested in the first instance, by the particular sort of obligation which regards truth, will be found applicable, with equal propriety, to an obligation of any other nature, together with the contraventions that correspond to it; and, in the present instance, it may on this or that occasion be of use to us, to save us from the imputation of incorrectness and injustice, should it happen to us, in speaking of any of the laws in question, to speak of them not only as contemned, but as contravened.

In regard to the packing system, what will be clear enough to any person who will take the trouble of looking into the two acts in question, with this view (3 Geo. II. c. 25; 4 Geo. II. c. 7) is—that the foundation of it having, not only at the time of passing the first of these two-acts, but a considerable time before, been laid—laid and established by the practice and rules of court, which in each court gave the nomination of special jurors to the master, the dependent of the judge—the lawyers, by whom or under whose direction the several acts were penned, and who, it will appear probable, had for their principal, and perhaps for their sole, sincerely pursued object, the giving to this system an efficient degree of extent, took effectual care not to divest of that permanence, which was so essential to the expected service, the bodies which it had in view to organize.

In the character of special jurors as in any other, men (they saw well enough) could be depended upon only in proportion as they were tried. On this principle it was, that the contemplation of the jobs which every now and then there might be to do, produced a natural aversion to new faces. A determination was accordingly taken, that when the permanence, which had been denounced to parliament as the cause of the mischief, came to be prohibited, the prohibition should, if possible, be prevented from extending to special juries.

At the same time, as in the case of jurors in general, “corruption” had been the abuse, which, having called the attention of the legislature to the subject, had given a preamble to the first act, a sentiment, compounded of shame and apprehension, prevented them from attempting to establish the exception in express words. The course they took was a more ingenious one. Exception, they inserted none;—at the same time they so managed the act, that should the time ever come for carrying it into execution, it would, in virtue of this or that word, ingeniously slipt in for the purpose, be found, as in this very instance it has been found, inapplicable to special juries.

Not to overload this note, a sketch of the course they took for compassing this point is posted off to a separate chapter. (Chap. V.)

The odd thing is, that so many learned persons—two others, besides the pre-eminently learned one—should have concurred in a mistake, thus unfavourable, in appearance at least, to the state of things he was upholding at the expense of so much pains. But, to find interpretation for all the wisdom displayed by so many learned persons, would be too much for one unlearned one. Sufficient be it for him simply to point it out as forming the matter of a problem, which must be left to take its chance for solution from some other hand.

What makes the oddity still more odd is—that of these same statutes the non-applicability to the subject of special juries (those clauses of course excepted, in which special juries are expressly mentioned) had been declared more than once, after solemn argument, by the court of King’s Bench:—once in a comparatively recent case, that took place in Michaelmas Term, on the 25th of November 1793—about three quarters of a year after the day which gave the benefit of the Lord Chief Baron’s wisdom to the Exchequer Bench;—once before that time, in a comparatively ancient case, determined by the Lord Chief Justice Raymond, in the case of the King against Franklin, Hilary Term, 5 Geo. II. anno 1731—about a twelvemonth after the passing of the first and most efficient of this string of acts;—a case the report of which was, on the occasion, and for the purpose, of the cause last decided but here first mentioned, dug up by one of the judges (Buller) out of the heap of dust, in which for two-and-sixty years it had lain buried—buried as usual, lest the knowledge of it should become possible to those who were to be made to suffer for not knowing of it.

If indeed so it be, that on this occasion it had become an object with his lordship to show to the people of London and Middlesex, through the medium of their sheriff, what sort of regard English judges are in use, and upon occasion disposed, to pay to acts of parliament, on this hypothesis the particular turn thus taken by his lordship’s wisdom may be accounted for, by being brought within a general rule.

When an act of parliament is produced to an English judge, and the execution of it called for at his hands, the first question with him naturally is—whether it suits his taste: it yes, he gives it his fiat, or what he calls “his support:” it no, he deals by it as the pre-eminently learned person here in question dealt, and may be seen dealing, by this law, the relevancy of which, it not actually believed by him, was at least feigned to be believed, for the purpose or showing his regard for it.

Thus, in the instance of Lord Chief Justice Raymond, in the case dug up, as above, by Mr. Justice Buller—speaking of the act, then as well as now, in question—viz. 3 Geo. II. c. 25.—“he,” viz. Lord Raymond, “said—the act of Parliament was a very beneficial act, and ought to be supported.” Note, that being in the secret, he knew that this act, beneficial as it was, was not, on any occasion on which corruption could have been checked by it, ever intended, otherwise than in show, to extend to special juries: and consequently, that it would not stand in the way of any of that corruption, for the purposes of which the special jury system had been instituted, and in and by this very act, was by the astutia of the learned penmen spread out to an all-comprehensive extent.

He, therefore, who should take upon him to impute to English judges, or to any of them, any such intention as that of overthrowing all acts of parliament without distinction, would utter a gross calumny: as gross a one as if he were to impute to Lord Ellenborough any such intention as that of suppressing all publications without distinction. No: where, as in the instance of Lord Raymond, an act of parliament has the good fortune to be agreeable to their taste, and the parliament by which it has just been enacted is still sitting, in any such state of things, such is their condescension, they are ready to give it their “support.”

In regard to the question whether, as per hypothesis, in thus setting up an act of parliament his lordship’s object was to show how easily he could put it down, some additional light may perhaps be thrown upon it, by a case which there will be occasion, a little farther on, to bring to view: (see Part IV. Chap. II.)—a case in which, if the evidence be to be believed, we shall see the judges, all twelve of them, concurring in the declared determination to persevere in defeating the express words, as well as unmisconceivable intention, of a law, made for the sole purpose of putting an end to certain oppressions and extortions, the profit of which had thus been vainly endeavoured to be snatched out of their hands.

[* ]“If you think it worth while” to make any reform.] Of the letter thus alluded to, the words are—“If you should think it worth while to rectify the practice which has obtained” . . . . . . Here we see—alas!—a jeofail: a jeofail in the shape of a misrecital: an error large enough, had it been properly placed, to have given impunity to a murderer or an incendiary, and sent them out to commit fresh murders or light up fresh fires. An error? But to what cause shall it be imputed?—to laches in the clerk?—not it indeed:—to astutia, and welcome:—to laches?—presumptuous thought!—such weaknesses the law suffers not to be imputed to such clerks.—Some other cause must therefore be found for it:—but of this presently.

The light in which the two learned lawyers—the official and the professional one—the light, with its different shades, in which the supposed contravention is considered by them, is well worth observation: the rather, as it affords a further specimen of the sort of consideration which the law of parliament is accustomed to be held in by the fraternity of lawyers. By the professional lawyer, the change proposed by the sheriff is admitted to be a “rectification:” a substitution of right to wrong: a substitution of obedience to an inveterate course of wilful and contemptuous disobedience. But, so rooted in the minds of the brotherhood is the habit of treating with contempt the only rule of action which is not, under the usurped name of law, a system of imposture, that, let the disobedience it has been treated with be ever so flagrant and undeniable, a doubt is expressed, whether it be “worth while” to substitute to it the contrary habit of obedience.

So much for the learned counsel:—as to the pre-eminently learned judge, when he comes to take up the matter, thus far we see him concurring with the learned counsel at the first glance; viz. that it rests with them and theirs, whether to pay any regard to an act of parliament or not: and finding, in the doubt of the learned counsel, a sort of sanction, i. e. what among lawyers passes as such, for the practice—for that practice which, without doubt on either part, the legislature had, after stigmatizing it as “corrupt,” (see Part I. Ch. IV. § 5,) prohibited, he lays hold of the doubt, as a sort of authority, entitled to have its weight, where the authority of parliament had none.

In the opinion thus given by the learned counsel, one little expression, however, did not altogether quadrate with the views of the learned judge: I mean the word “rectify;” because, in the idea of rectification, a word so far from being suitable to his purpose, is necessarily included the actual existence of something wrong, on an occasion where the thing signified by it was to be discountenanced. His Lordship puts aside accordingly this unguarded word, which does not suit his purpose, and substitutes another which does suit his purpose. This other is the word “reform;” a word which to lawyers in general, in concurrence with all others who have an interest in the maintenance of abuse in any shape, is an object of such well known horror: having for its synonymes, theory, speculation, innovation, infidelity, jacobinism, confusion, destruction of social order, et cætera, and so forth.

Judge and barrister together, it is curious enough to observe what, in the judgment of those learned persons, is, as well as what is not, “worth while.” What is worth while, is—violating a fundamental principle of the constitution: what is not worth while, is—ceasing to violate it. What is worth while is—breaking the law: what is not worth while is—obeying it. What is worth while is—forming this judicatory corps of gentlemen pensioners: what is not worth while, is—disbanding it.

[* ]Never seen the least inconvenience.] As to the practices and results, in which his lordship’s good fortune in not seeing “any the least inconvenience,” is thus declared, they have already been brought to view.

[† ]Inconvenience . . . . . from . . . . distance.] On the subject of inconvenience in this shape, see the next Chapter.

[‡ ]To obtain . . . . attendance . . . . expedient to summon such as live near to London.] Expedient? Yes:—and that on two accounts. 1. Men fit for guinea-men are more plentiful near to London than at a distance. 2. For a guinea, with the chance, and that not a bad one, of earning several more guineas than one, not to speak of a good dinner, many a man would be content to come a mile or two, who would not be content to come “fifteen” miles;—the distance spoken of by his lordship immediately after as having been a subject of complaint. A mile or two a gentleman may come on foot; fifteen miles, unless it be for a wager, he will scarce ever come otherwise than with horse or carriage.

Necessary? No: unless so it be—that it being found or deemed necessary, or at least agreeable and convenient, to have regard to the convenience of the individual, where he has the good fortune to be an Esquire—it is to that purpose necessary, that none should be looked for, but those to whom the visit will have proved convenient and agreeable. In the case of the man, who is not in any such high degree favoured by fortune, all such necessity is out of the question: what necessity there is presses all of it upon his shoulders; and consists in necessity of attendance, on pain of “penal visitation”—no matter how great the distance, no matter how great the inconvenience. (See above, Part I. Chap. IV. § 5.)

[∥ ]Otherwise . . . . little expectation of . . . . full special juries.] To the packing system, this fulness on the part of special juries is rendered material and subservient by more circumstances than one:—

1. It keeps out talesmen, plebeian substitutes, who, being taken at random, could not in point of discipline be to be depended upon, and among whom in a cause of real interest, such as a libel cause, any one bad player might, under the system of forced unanimity, by possibility be sufficient to spoil the whole game.

2. The greater the number of those who attend, no one of whom ever does or ever can be made to attend, unless attendance be perfectly convenient and agreeable to him, the more extensive, and consequently the more valuable, this branch of patronage.

So much for convenience: there we see the convenience. But expedience is alleged: and whence comes this expedience? The answer is—that unless “such” were taken “as live near to London,” a full attendance—“anything like a full attendance”—would be little to be expected. But why so? The persons on whom this obligation lies, all of them in affluent circumstances—affluence in every instance the declared ground of their selection—fifteen miles the longest journey which any one of them has to take—under these circumstances, out of four-and-twenty to whom on the occasion of each cause the commands of justice are signified, can twelve be too great for the number of those on whose part obedience to those commands can with probability be expected? Of such non-expectation, or rather such despair, what can be the ground? In other counties, the journey may be from twice to thrice as long—the persons to take it may be such as are not in possession of a fifth, a tenth, a fiftieth, a hundredth part the opulence: yet in that state of things what complaint is ever heard of a want of jurors? Mark well the consistency:—men who can best afford it, and would be well paid for it, and who would not have to come so great a distance, cannot be expected to come, even in so much smaller numbers:—while men who can ill afford it, and are not paid for it, come from a greater distance, and in greater numbers.

“Aye, but these are but common jurors:—men ‘who have nothing to do with the laws,’ as has been well said, ‘but to obey them;’—and who are accordingly kept as much as possible from knowing the laws, for fear they should obey them. But the others (you seem to forget) are special jurors: and do you consider who special jurors are?—Why, Sir, they are all gentlemen:—gentlemen, every man of them! and when you consider this, you cannot surely be so extravagant—can you?—as to expect, that they shall be forced to attend, whether it be convenient to them or no, just as if they were so many petty farmers, petty handicrafts, or petty shopkeepers?”

Here, then, on this occasion, as on every other occasion, we come, sooner or later, to the radical and all-pervading grievance. One law for gentlemen—another for low people;—comforts and attentions heaped together on one side—burthens and neglects on the other;—such throughout is the spirit of that spurious kind of law which has the judges for its authors: such is the “respect of persons,” which, in the bosom of English judges, occupies the place of justice!—And so rooted is this partiality, that we see it thus openly avowed, just as if it were a duty; in which character it seems actually to have passed itself upon the religion of this our learned judge.

Now, as to the gentlemen in question, to what title is it that they are indebted for the favour thus habitually shown to them by this our learned judge, the representative and mouthpiece, as on this occasion he may well be taken to be, of the learned and reverend brotherhood, of which he is so distinguished a member? Is it to any particular connexion, in the way of interest, alliance, friendship, or acquaintance, with those learned and reverend persons, any of them, or any of their connexions? this is partiality upon a small scale. Is it purely to that of their belonging to the class of gentlemen? this is partiality upon the largest scale.

[* ]Complaints . . . . of having been brought fifteen miles.] Of the comparative amount of this hardship, something has been said already (Part I. Chap. IV. § 5,) and something more may perhaps be to be said anon. At present, what seems to call for notice is—the service rendered to the packing system by the sort of oppression thus complained of, taking into the account the complaints that were the fruit of it.

The packing system having been for years past organized, and a determination taken accordingly to maintain and defend it, whatever was capable of being made to furnish a plea in favour of it, might thus be rendered subservient to its maintenance and defence. On this or that occasion, on which the verdict was, to the powers above, a matter of indifference, this or that gentleman was summoned, of whom it was known that by his situation, geographical, domestic, or political, he was rendered unfit for service in the guinea corps. He came accordingly, served and grumbled: and thus, out of the grumblings of this medecin malgrè lui of the body politic, was made an argument, for composing the establishment of willing ones.

Not having the honour to be in the secret, it is only from appearances that I can speak:—from appearances—and there they are.

[† ]Instructing jury after jury . . . exposes both parties, &c.] Symptoms of somnolency begin to discover themselves: and, on the part of the jurors or others, to whom the instruction is to be applied, if of this sort be the form in which it is to be administered, some danger there seems to be, lest the somnolency should be found contagious, and “the points” do as well as they can, without being “understood” at all.

But, this being one of the two grand arguments, of which, on the ground of reason and utility, the pillars of the packing system are composed, an attempt will be made presently to get to the bottom of it, and extract whatsoever instruction may be capable of being extracted from it.

Meantime may not this be among the “points” that might be found lying there (I mean at the bottom of the argument) or thereabouts?—viz. that the instruction of a jury is work for the judge; and, in particular, that sort of work, which sometimes calls for learned thought, and always occupies learned time?

If so, the reason, it must be confessed, is by no means a purely personal, being in no small degree a public, one. For, besides those operations of a nature purely mechanical, which, in the equity system more especially, have been so contrived as to oppose a constant and unbending bar to the charge of precipitation—in regard to the work of decision in particular, which can never be reduced to the simplicity of pure mechanism (See Scotch Reform, Letter II, Devices), in such manner as to convert into absolute superfluity every application of human reason—in regard to this special kind of work, somehow or other so it has happened, that, in that honourable court, the rate of progress has, for some years back, been such as to have been regarded with more complacency on the defendant’s than on the plaintiff’s side. Speak of the Exchequer—aye, but look to the Chancery: speak of the Chancery—aye, but look to the Exchequer: speak of English Equity—aye, but look to Ireland—such is the sort of comfort which plaintiffs have been in use to administer to one another: yea, and continue to administer to one another to this day, unless in Ireland any thing has happened within this year or two, to break in upon the regularity of the consolatory circle.

Enter the House of Lords, regularly with the seals and mace, the motto festina lente, you will find, has travelled up to the House of Lords: till, what with mechanical, what with ratiocinatory, or at least disceptatorial cunctation, the pace of justice is, in that her highest temple, adapted—if not to the simplicity and felicity of the golden age, at any rate to the longevity of antediluvian times.

He that has to speak of these things, let him look well to his words: let him speak in parables, borrowing a ray of obscurity from the speeches which are his theme. It is at this price only that he can hope to foil the official Œdipus, the subpœna’d interpreter of informational inuendoes. But let not men complain: for it is for the use of such Fabiuses in the character of fee-eaters (called by the Greeks δωϱοφαγει) that in the character of plaintiffs and defendants men were made.

[* ]Few verdicts from which I should have dissented, had I been one, &c.] Verdict and dissent? dissent, and, on the part of a supposed juryman, from a verdict? Strange and never-before-associated ideas! Alas! were these waking or sleeping thoughts? In what region of romance were the thoughts of his Lordship wandering, when in idea he heard a verdict pronounced by a jury, and himself a dissenting member of it? By what process were two phenomena, which in real life are so incompatible, brought together by his learned fancy? Speaking with respect—but, forasmuch as all this is but supposition, speaking out—was it that his Lordship was pleased to perjure himself? joining in one of those “perjuries” which Judge Blackstone has found so well associated with “piety,” and which the humanity of so many of his reverend brethren have so frequently, so frankly, and so successfully manifested?—was it then that thus in vision he was pleased to perjure himself, declaring assent by his lips while dissent was in his breast? or was it, that at the end of a certain number of days and nights of inanition, having fainted under the torture, he had thus by silence given opportunity to that verdict, to which his assent, expressed either by words or action, could not by any agonies have been extorted?

Or was it, that instead of fancying himself in the jury-box, he was for the moment nodding, as if with his old friend “good Homer,” and occupying—not as now upon the woolsack, but on some other seat, more elevated, and not far distant—a place in the House of Lords?—forasmuch as in that august assembly, dissents, however rare, are neither unexampled, nor (since there happily they may be avowed without perjury) unavowed.

On the principle of the apology, made by a Dr. O’Meara of the day, for pronouncing before a polite congregation, so unpolite a word as hell, may not an apology here be due, for a word so near of kin to it as perjury? An apology?—yes, by all means:—considering that in so many a reverend company, the less odious the thing, the more odious the name.

[† ]Favourable to the defendants.] Taking for granted, which I do sincerely and without difficulty, that the cases alluded to by his Lordship under the description of cases in which he “should have dissented from the verdict”—it being as above “favourable to the defendant”—were cases in which it was unjustly favourable, corruption by individuals has already been stated, in another place, (Part I. Chap. IV.) as an operation in which the effect in question may, with no slight appearance of probability, have had its cause.

“What? is this then your hypothesis?—is this the persuasion you are seeking to spread—viz. that in the 84 special jury causes tried in a year in the court of Exchequer (Phillips, p. 159,) there is not one, in which the verdict has not been a corrupt one? corrupt on one side or other—either on the plaintiff’s or on the defendant’s side?”

My answer is—that, in truth, among a given number of verdicts, I should not expect to find more wrong ones in the court of Exchequer, than in any other court taken at random. I could even add reasons—were there in this place any use in it—reasons why I should not expect to find even so many; I could go further still, and add reasons why, in that judicatory, I should expect to find the number of wrong verdicts, as well as the degree of aberration in cases admitting of degree, rather diminished by the effect of the influence exercised on the guinea-corps, than increased. But, without having any other ground than as above, what I should not be at all surprised at is—to find that now and then the favour shown to individuals in the character of defendants had had corruption in some shape or other, for its cause. At any rate, supposing corruption on this side never yet produced, yet if it be possible for corruption in juries to be produced, produced in any other way than by open allowance of it by law, I can think of no other by which so high a probability of corruption could be produced, as by the permanency thus secured.

As to other courts, I have stated already (Part I. Chap. VI.) that the court particularly in question here—viz. the court of Exchequer—is not a judicatory, in which, notwithstanding my abhorrence of this system of corruption, I should expect to find wrong verdicts the result of it: and that—except such casual partialities, to the harbouring of which all judicatories are more or less exposed—it is only in the King’s Bench—and even in the King’s Bench, in such cases alone as are, in some way or other, connected with what is called politics, and particularly in libel law cases—that I should expect to find wrong verdicts produced by such a cause.

As to the court of Exchequer, in that judicatory, I know of no worse nor other bad effects as produced by the packing system, than, on the part of judges, a confirmation of the habit of open contempt as towards the authority of the legislature, the equally open violation of an universally acknowledged principle of the constitution, and the uneasiness, and by no means groundless alarm, produced in the breasts of the people, by the apprehension of injustice, though in cases in which I myself should not expect to find it taking place.

Now these are, in my conception, all of them very serious evils. Having a thousand pounds justly due to me, suppose I were to give to a juryman a hundred pounds, or the promise of a provision for some friend or dependent of his, to secure my thousand pounds to me by a favourable verdict: and the verdict, with a thousand pounds damages, is found for me in consequence. Here, by the supposition, the verdict itself is not a wrong one, but, supposing the transaction between me and the juryman to transpire, would not the evil be a very serious one? Would not the feeling of insecurity under the law be much more intense and extensive than it is even at present?

[* ]Having seen no reason to complain.] For seen, ought we not rather to read felt? Felt? no: for complaining of a system so avowedly convenient, and so declaredly cherished, felt, we may well believe, no reason ever has been, by the reverend and learned judge. But seen . . . . . ? no; nor perhaps that neither: for when a man’s eyes are shut, what is there that he can see?

[† ]It must be left to your own discretion, whether you will risk.] Left to the sheriff’s own discretion? Yes, so it was: viz. to risk or not to risk: forasmuch as to that discretion that choice could not but be left. But when the discretion had been exercised, the choice made, and the risk incurred, the success of the measure risked, was it left in any such rash and irregular hands? Not it indeed: no, it found its way into regular and well-practised hands: well-practised, and well-instructed (it may well be believed) in the art of weighing practical and official inconvenience against speculative convenience. See Chap. IX. Transactions at the Remembrancer’s.

[‡ ]The making us better than well.] We are come at length to the grand instrument of defence, by which the scheme of the assailants of the packing system was finally to be blown up, and at the same time, by delicate and well-turned ridicule, covered with contempt: the well-pointed epigram, made out of the Italian epitaph, which, if a little of the stalest, was not the less fit for the purpose:—

Epitaph on a valetudinarian, who quacked himself to death:—

• Stavo bene:
• per star meglio,
• sto qui.

Thus done into English by T. Sternhold and J. Hopkins:—

• Once I was well, my friends most dear:
• Thought to get better—so got here.

Ah, poor Sir Richard! Little did the good Archbishop, when some seven or eight-and-forty years ago, in the royal school at Westminster, he was delivering, to the furture Lord Chief Baron, the splendid and well-earned fourpence, think of the doom he was preparing for you! Ah, poor Sir Richard! Well—if slain you are, it has not been by an indelicate or ignoble hand.

Yes; if stone dead, console yourself: for you lie not in bad company, any more than without an epitaph. Yes: of full many a reformer’s fame has the blood been drunk by this arrow, still thirsting after more.

But the ridicule of it? Ah! thank your stars, once more, for that on this occasion you were not the agent but the patient; for, in the opposite case, a lot somewhat worse than metaphorical death—life or death in the house of legal reform at Gloucester or that at Dorchester, would, if Lord Ellenborough’s law had received its execution, have been your fate (See Part I. Chap. IX. § 5.)

[* ]Wilks against Eames Andrews, p. 52, Mich. 11 Geo. II. anno 1737. The court said, “that though it was not usual, before the said act, to grant special juries without consent, yet in some instances, and for special causes, it was, and might be done: . . . And Lord Chief Justice cited the King and Burridge, Pasch. Geo. [I.] 10, when upon search it was found that no special jury had been granted for thirty years then last past without consent; and the Lord Chief Justice Pratt was then of opinion, that the court might grant a special jury without consent, but the other judges differed;” i. e. were of opinion that the court could not grant a special jury without consent.

From this it seems, that at both periods the Chief Justices knew what they were about, and accordingly invented pretences for thus forcing in the special jury system: but that, in Pratt’s time at least, viz. anno 1725, the puisnes were not in the secret: inasmuch as they opposed the extension thus endeavoured to be given to it.

From this it may be seen that a special jury, in the character of a subject and instrument of package (unless before this time the crown lawyers assumed, and by the judge were permitted, to exercise a right of commanding a special jury in crown causes, as would naturally be the case) as well as a source of increased lawyer’s profit, took its rise from this act: and, as well in the character of an occasional source of corruption as in that of a constant source of lawyer’s profit, it has already been seen how valuable an engine it has proved in the manufactory of abuse.

In the character of an instrument applicable to the purpose of corruption, our estimate of its value may receive some assistance from a circumstance mentioned in the same Report. In “the case of the corporation of Bewdley,” the trial being at bar, twenty guineas a-piece, it appeared, had been given to each juror. Nor would the enormity of the sum have transpired, but for an application made by the losing party for what is there called “lowering it,” which the court did: viz. to five guineas, i. e. forbore to oblige the losing party to pay any more than five guineas, not obliging him to pay the twenty; for, as for taking out of the pocket of each juror fifteen guineas out of the twenty he had received, that was altogether out of the question:—that was what could not be done. The money was already in their respective pockets; and there was neither statute law nor judicial practice that could have furnished so much as a pretence for making them disgorge it.

In the same case, in speaking of the quantum of the extra allowance given to these well-selected assessors, an observation made by Strange, Solicitor-General, is—that “though the practice is to pay them more than to common jurors, this is mere matter of generosity, and ought not to be reimbursed by the other (meaning the losing) party.”

All depending on generosity, and the crown, i. e. its servants, and they alone having it in their power to be generous, and without bounds, as well as without any expense to themselves, it may be imagined what sort of a chance an individual would have, under a set of jurors, all named by this one party, possessing, and all along exercising, the power of either rewarding them, at the expense of others, to an unlimited amount, or not rewarding them at all, according as they behaved.

The crown, had it or had it not a special jury at pleasure, and not depending on the consent of the party on the other side?

A circumstance indeed that contributes to render it probable, from the first invention of special juries, the king, i. e. the servants of the crown, never failed to have a special jury of this sort for asking for, is—the care which, at the early period above mentioned, viz. the beginning of the reign of King William, was taken, that the faculty of striking out the 12 out of the 48 should not, on the part of either party, be exercised, without its being specially applied for, and on application ordered.

And so lately as in the time of Lord Mansfield, it is stated as a rule, that when the solicitor omits to attend after notice, the master in K. B. may strike the jury ex parte. Cowp. 412. Rex v. Hart. Hilary, 16 Geo. III. B. R. 1776.

In such cases as were left to a common jury that is, in causes theimportance of which was not sufficient to excite any interest in the bosoms of the judges or their connexions, chance was the instrument they saw directed to be employed for the reducing the number on the gross list to twelve—the number adapted to the serving list. Had justice been the object, here then was a principle and a precedent to have pursued. But in cases that were deemed worth their attention, these ministers of justice knew better than to trust in any degree to chance, what might be secured by prudence.

In the case in Cowper, before Lord Mansfield,a a curious enough circumstance is the carelessness, real or simulated, of the judge, in regard to the person by whom the twenty-four should be struck out, in case of a refusal on one side (in the case in question it was on the side of the defendant) to strike out the twelve—the right of striking out which, according to the practice, belonged to each side, and consequently to that side.

What the reason of the case plainly enough required was—that the party attending for the purpose (in the case in question, the solicitor of the crown) should exercise his right of striking out his twelve, and then, the defendant’s solicitor making default, the right that belonged to him should, from necessity, be exercised by the supposed impartial officer, the master.

In this case, both on the part of the counsel by whom the motion is made, and on the part of Lord Mansfield, the judge, by whom the prayer of the motion is refused, an assumption made is—that, in case of such default, it belonged to the master, and him alone, to strike out the whole four-and-twenty: that is, twelve for the defendant who made default, and twelve for the solicitor of the crown, who made no default.

In this case had there been any real distinction of interest and feelings, nothing could have been more palpably partial and iniquitous, than to put it into the power of one party, by thus wilfully making default, to deprive the other party of his right. Yet that apparent injustice—and this too to the prejudice of the crown—was committed. Why? Because between the servants of the crown in the judicial line, and the servants of the crown in the agency line, the understanding was so entire, and because amongst them it was so perfectly well understood, that, so far as concerned the interests and wishes of the servants of the crown of all descriptions, whether the person by whom the striking out were performed were the master packer or the crown solicitor, the effect would be just the same. Thus it is, that to any scrutinizing eye the secret, had there been any, would have been betrayed. But there was no secret in the case: and, as to any scrutinizing eye, there was none such within sight.

[* ]“The Duke of Portland . . . . informed me . . . . that your Lordship thought a change in Lord Castlereagh’s situation in the government desirable,—provided it . . . . could be reconciled to Lord Castlereagh’s feelings. The Duke of Portland . . . . told me that hopes were entertained . . . . of facilitating a general arrangement, in which a complete change in the war department might be effected consistently with Lord Castlereagh’s feelings.” See, in Cobbett’s Register, Dec. 2, 1809, the Letter of Mr. Ex-Secretary Canning to Earl Camden, Lord President of his Majesty’s Council, in which the conduct of a war on which the fate of the human species depends, is, for near six months together, viz. from 2d April to 20th September 1809, in the minds of the minister who writes this letter—the minister to whom this letter is written—and the other ministers in general, stated and shewn to have been a secondary consideration: the primary, and during that whole time the prevalent, consideration being the feelings of a single individual: that individual, a minister whose unfitness for such his employment had during all that time been recognised, viz. either by every one, or by almost every one of his colleagues:—and such colleagues!

Now in any such cabinet (not to speak of contingent ones,) suppose a proposition brought forward for the making of any such code of laws, as should be subservient to the purposes of cognoscible, impartial, undilatory, unvexatious, unexpensive justice. On what circumstance would the reception given to it depend? Answer—on its being capable of being made “consistently with,” or “of being reconciled to” the “feelings” of the great character whose seat is at the head of the law. Were it to happen to the rule of action to be cognoscible, impartial, and in all its other points, in the highest degree, or in any higher degree than at present, subservient to the greatest happiness of the greatest number—were the recourse to it rendered in any degree less dilatory, vexatious, or expensive, than it is at present—this would, in all its points, be a result opposite to the interest of that great character in all its points—viz. money, power, case, reputation, vengeance, with their et cæteras: also to that of the several learned, and noble and learned, and other great characters his colleagues, and other his friends. Such is the prospect which the law has of seeing itself well conducted. As to the war, had that been well conducted, the result, so far from being in any point opposite, would in every point have been, and in a high degree, subservient to the interests of the great character by whom it would have been so conducted.

[* ]Applies to special . . . . jurymen.] This is the clause forbidding the summoning and returning of over-served jurymen: this the passage which drew (as we have seen) from the Lord Chief Baron the avowed persuasion, that the Practice he had so long been pursuing, and was then defending, was a practice meant to be prohibited, and prohibited accordingly, by parliament. But that, in this persuasion, as well the learned judge, as the learned counsel whose observations he found so “perfectly just,” were perfectly mistaken, has, in the last preceding chapter, been shown at large.

[† ]If inconvenient for the latter to attend . . . . much more to the former.] Inconvenient to a guinea-fed juryman to attend oftener than the act requires! About as inconvenient as to this learned gentleman it is to have too many briefs. When the briefs crowd in too thick upon him, he returns the overplus: when the summonses crowd in too thick upon the guinea-man, he, the guineaman, obeys such as he finds it agreeable and convenient to obey, and neglects the rest.

Note, that of the twenty-four who, for each cause, are always summoned, it is but twelve that, in any one cause, can ever serve: therefore every other time of his being summoned, each special juror, or, in other words, half the number summoned, might, if the inconvenience were real, stay at home without being missed: and, to a majority composed of these gentlemen, suppose even a few yeomen jurors added, viz. in the character of talesmen, who would ever care about it?

Of the terrific fine, which (by the act of which the act in question is an amendment) is, in case of non-attendance, hung over the heads of jurymen, were I to add that it does not extend to special jurymen, his reply would be of course—“Oh, but this is according to the construction you put upon the act:—mine was different.” Be it so. But what reason could a sheriff have for supposing, that when he was sending an invitation to a gentleman, to partake of a good dinner, in good company, after sitting to act the part of a judge, and to receive moreover a guinea at the least, and perhaps a number of them, he was putting him to “inconvenience?” or if, in the instance of this or that particular gentleman it were an inconvenience, what is there that could prompt a sheriff to be too frequent in the reiterated production of such inconvenience?

Note that, in those days, a guinea was worth at least twice what it is worth at present.

Twenty years or thereabouts after the passing of this supposed inconvenience-producing act—(take for the act either the original act of the 3 Geo. II. or the amending act of 4 Geo. II.)—the topic of special juries came again upon the carpet: and what was the complaint then?—that, in the character of special jurymen, gentlemen were put to inconvenience by over-attendance? No:—that they were oppressed?—no: but that they were over-pampered:—that “great and extravagant fees were paid to them:”—and “frequent” are these complaints declared to have been by the act. (24 Geo. III. c. 18, § 2.)

[‡ ]Inconvenient . . . . it must be much more . . . . on account of rank.] What we have just been seeing, is a specimen of the sort of regard paid by the fraternity of lawyers to the convenience of gentlemen jurors—the class of jurors, whose convenience is entitled to regard:—let us now observe the sort of regard paid by the same learned fraternity to the convenience of common jurors—low people, whose convenience is entitled to........ to what? to any regard? To this one knows not exactly what to say:—either to none at all; or, if to any, to next to none.

Instead of convenience, we might say feelings. Since the use made of it for crushing the liberty of the press, feelings, always the more sentimental, is become the more legal term.

To a man who, in the sale of his time, finds the sole source of his subsistence, less inconvenient to sacrifice a portion of his time for 8d. than to a man to whom not only subsistence but affluence is secured, and that without the sale of any part of his time, it is to sell, on this particular occasion, the same portion of his time, receiving for it, besides a very good dinner, at the least one guinea. This is the proposition, with the supposed truth of which the learned gentleman was not only possessed, but to such a degree captivated, that, under the guise of a reason, introduced in form by the word for, it led him astray into what we have seen to be an erroneous conception, or at any rate an erroneous declaration, of the meaning of an act of parliament.

Such is the proposition, which, in this its character of a reason, stands at the head of those “observations” which, in the sight of the preeminently learned judge, were so “perfectly just:” and which, in that of another learned barrister, who dates from Lincoln’s Inn, will be soon seen to be so “perfectly clear and correct.”

The information thus afforded is no light matter:—inasmuch as here we see, expressed in words, the sort of regard, which the convenience, the feelings, the interests,—(any of these words may alike be employed)—the interests (say) of the vast majority of the people, may expect to experience at the hands of lawyers of all sorts and sizes, official as well as professional: the same sort of regard which stands expressed by deeds, in the sort of law, framed by these same learned hands—for the use shall we say?—no, anything but the use—of that same despised portion of the people.

In this sketch may be seen a picture—a family picture—of the fraternity of English lawyers:—a picture which cannot be charged with hostile distortion or discolourment, since it is drawn by their own hands.

From this view of it might be formed, à priori, a conception, of the treatment which, by sad experience, this portion of the people feel rather than see themselves to have met with at their hands: what they have met with, and for ever may justly expect to meet with, so long as, in Blackstone’s sense and words, “every thing is as it should be.”

Not that they are altogether devoid of sympathy:—for no human being was ever altogether devoid of sympathy. But, as is but too natural, their sympathy, such as it is, is confined to the classes with which they associate or wish to associate: and having, as we have seen, been so liberal of it to the distinguished few above—the men in high situations—they have none left for the undistinguished multitude beneath.

Hence it is that in England (not indeed in England only) the people have come to be divided into two classes: one, of those to whom justice is to be sold; the other, of those to whom justice is to be denied:—denied, for the benefit of those who alone can come up to the price: and who by that means are authorized and required to purchase the faculty of oppressing, under the name, and with the power, of justice.

This is the authoritative comment upon Magna Charta:—the comment, written, day after day, by the fee-fed hands of the twelve judges; not forgetting the one supremely learned person, who sits at the head of the law, in this as well as so many other senses.

That a poor man can better afford to work for nothing than a rich man (for this, though a short interpretation, is a sufficiently correct one,) is a proposition of that sort, which it seems impossible for any men to repeat, who, after notice given him that it will be looked into, should bestow on it a second glance. But how impossible soever it may be for a man seriously to think so, nothing can be more easy to a man than to say so: and when such is the state of his feelings, that, while those of the higher classes are something to him, those of the lower classes are as nothing, it is no less natural for him to say of the working class, that they can afford to be made to work for nothing, and that they don’t mind being made to work for nothing, than it was for the cook to say of her eels, that they don’t mind being skinned. Why did not the cook’s eels mind being skinned? Because they were used to it. Why do not the Lord Chief Baron’s common jurors mind being made to work for nothing? Because they are used to it. The cook for her wages is used to see eels skinned without minding it: and the Lord Chief Baron, for his fees, and those of his friends, is used to see the great majority of the people outlawed and stripped to the skin, without minding it. In both cases the construction is ambiguous; but in both cases the import is clear enough.

“Perfectly just” as this mode of doing justice to rich and poor is, it seems, at present, it has not been looked upon in that light by all judges at all times.

Wilkes against Eames, Mich. 11 Geo. II. anno 1737. Andrews’s Rep. p. 51.—“Probyn Just: said, that he knew no reason why special jurors, attending a trial in the country, should have more allowed them than a common jury; the other being generally more able and better qualified to serve their country than these.”

[* ]Court . . . . would not suffer their process to be disputed.] No: that they would not; viz. if by any one it happened to be found “worth while” to bring the matter before them:—and at any rate, this was a very good advice.

[† ]Worth your while.] This is the passage which hit so exactly the taste of the Lord Chief Baron, and which accordingly, in the character of an argument ad hominem, he made use of, in the representation made by his lordship, as we have seen, to the sheriff, in hopes of engaging him to give up so romantic a scheme. Would you give execution, would you pay obedience, to an act of parliament?—think first whether it be worth while:—if it be not worth while, who ever (i. e. which of us ever?) thinks of paying obedience to an act of parliament?

[‡ ]To rectify the practice.] Rectify—as applied to practice—to the practice of judges—to his own practice—this was a word which has been seen to be—and indeed might without much expense of thought have been expected to prove—not altogether to the learned judge’s taste: accordingly, as we have seen—and for what reason we have seen—he slips in the word reform instead of it. For, under this name, though not so easily under the name of rectification, the proposed and dreaded correction might without reserve be slighted and discountenanced.

[* ]Apprize the master or remembrancer thereof.] In pursuance of this advice, the sheriff did “apprize the master or remembrancer thereof:” and in chapter the 9th, we shall see what he got by it. In giving to the sheriff this part of the advice, this learned friend of his was quizzing him; unless so it were that the learned gentleman, how well soever deserving to be, was not completely in the secret.

[† ]The opinion of the court would be obtained.] Yes:—and so would the expense of obtaining it: and moreover the disgrace and ridicule of presuming to endeavour to obtain it. To the sheriff, along with the expense, might have been obtained, perhaps, another epigram, still more pointed and quizzatorial than the Italian one. From any such “urbane” (for in the application of this attributive the sheriff cannot be accused of error) and polished bench—what would not indeed have been obtained is—any such attributive as that of the “greatest fool,” or that of the “weakest man,” that ever walked over earth without a keeper.

In the character of an advocate, to apply such attributives belongs perhaps only to Sir Vickery Gibbs: in the character of a judge, to take them up for the purpose of rendering them more bitter, under the guise of sweetening them—as Lord Ellenborough did to this same sheriff, on an occasion on which, according to his lordship’s own declared opinion, what was said by this same person, in the character of witness, could have no influence on the fate or merits of the cause—belongs surely only to Lord Ellenborough.

In the same common design, different parts are acted, as nature, habit, and situation serve, by different characters: and amongst them, while no pretence for any more substantial vengeance can be found, such is the retribution that ought to be expected by all such adventurous knights as think to remove, though it be but a grain, of the mountain of abuse accumulated by the hands and for the use of English—add, or of Scottish lawyers.

[‡ ]They would probably . . . . alter the practice.] Alter the practice indeed!—uncompelled by parliament, a court—an English law-court—or, uncompelled by the people, an English parliament—alter for the better its own practice! Yes: when without compulsion, the Mufti turns Christian; or the Pope, Protestant. The court alter its own practice! If for the better be meant, when was it ever known to do so? On the part of the learned author of this most learned advice, behold still the same pleasantry; or still the same simplicity and inscience.

[∥ ]Excused . . . . on producing a certificate.] Sage advice, still in the same style. Excused, you may perhaps be from attending to receive a guinea or several guineas—excused, on condition of producing a certificate, the endeavour to produce which might or might not succeed, and in case of success would produce, without the guinea, more trouble than the attendance.

Here, as might be expected, we see another lawyer’s remedy:—I don’t mean a remedy proposed by another lawyer;—I mean another remedy, of the sort of those which lawyers are in use to make up and administer;—of that sort which they have in store for their clients, in the character, whether of consultants, or suitors. Bad indeed must the disease be, if the remedy they have to administer be not worse. And so happily as well as ingeniously have they managed as not to have left, even at their own disposal, any good ones.

[¶ ]This insertion of this word [not] seems to be a slip either of the pen or of the press. J. B.

[* ]The three letters.] These must evidently have been the three letters above reprinted, in so many preceding chapters: viz. 1. The letter dated from the Temple; 2. Sheriff Sir Richard Phillips to the Lord Chief Baron; 3. The Lord Chief Baron’s answer to the said Sir Richard Phillips.

[† ]Most clear that it did not originate in any jealousy, &c.] Here we see the first of the evidences above alluded to, by which the purity and simplicity of these learned eyes stand demonstrated. Not only are they (as we shall see presently) inaccessible to any suspicion-exciting ray capable of being emitted from any other source, but, when the tendency of an act of parliament might be to excite any sort of suspicion capable of pointing itself towards the higher powers, they are inaccessible to the very first words of the act.

The act, I mean the earliest, the most efficient, and by far the longest, of the four or five acts which bear upon the subject (3 Geo. II. c. 25,) states, in the very first line of it, as the very cause of its enactment, “the evil practice used in corrupting of jurors;” and it is with these words before him (or why were they not before him?) that to this learned person “it is most clear that it did not originate in any jealousy entertained that men so summoned and serving, would fail to act uprightly between the parties.” No: the intention, “the sole intention of it,” is stated by him as being that of mitigating the sort of vexation which, the instant a perception arose that the breast of a gentleman stood exposed to it, made that deep impression, which we have already witnessed, on the feelings of the learned judge.

What is possible indeed is—that the act which at that moment lay before that gentleman was—not the very act above mentioned, but another of the next year; viz. that of 4 Geo. II. c. 7. But this last-mentioned statute, being but a patch put upon that other of the year preceding, is so indented into it, that to any one who had not taken the trouble to turn to the amended act, any self-satisfactory conception as the amending act would be plainly impossible.

By the act of the 7th Geo. II. c. 7, § 2, after reciting, that by the act 3 Geo. II. c. 25, it had been enacted, that “no persons shall be returned as jurors to serve on trials at Nisi Prius” “who have served within . . . . two years before . . . .in any . . . . county” except as excepted; and that “by reason of the frequent sessions of Nisi Prius in the . . . . King’s Bench, Common Pleas, and Exchequer at Westminster, the said provision cannot be put in execution in the county of Middlesex, but is found impracticable,”—it is (after this recital) enacted, “that the said recited clause . . . . shall not . . . . extend to the county of Middlesex.” Then, as to that county, it goes on and enacts, that “no person shall be returned to serve as a juror at any session of Nisi Prius in the county of Middlesex, who has been returned to serve as a juror at any such session of Nisi Prius in the said county, in the two terms or vacations next immediately preceding”—“under such penalty upon the sheriff, under-sheriff, bailiff, or other officer, employed or concerned in the summoning or returning of juries in . . . . Middlesex, as might have been inflicted on . . . . any of them for any offence against the said recited clauses.”

[‡ ]“Between the parties,”]—Note of Sir Richard Phillips to these words:—“It should be observed, that the persons who serve on special juries rather desire the employment than to be relieved from it, as they receive a guinea for every cause; and it is not about causes between individuals on which there can be any ground of jealousy. So far are special jurymen from seeking to be relieved, that, owing to the advantages derived from serving on them, I have received, since I have been sheriff, more than a hundred applicationsfrom respectable persons, who, under a mistaken notion that it was in my power, have wished me to place them on what they called the special jury list.

“R. P.”

[* ]Mr. * * * * is perfectly clear and correct in his observations.] Mr. * * * *; viz. the learned gentleman who dates from the Temple; and of whose learningwe have already made our profit: viz. in the last preceding chapter.

On that occasion, at the head of those observations of his which were so “perfectly just,” we saw the lawyer’s balance, for weighing the value of gentlemen’s time against the value of low people’s time: and, with the correctness of these scales, as well as with the several other observations from the same learned quarter, the learned inhabitant of Lincoln’s-Inn, is (we here see) no less “perfectly” satisfied than we have seen the pre-eminently learned judge.

Like causes produce like effects: he who sees one of these learned persons, sees another: he who sees Bavius sees Mævius. An observation to this effect has been made already: but the occasions for repeating it succeed one another without end.

[† ]One circumstance . . . . must remove all suspicion.] Remove it?—from what place? Not surely from any one of these learned bosoms, the door of which, as against all suspicions pointing upwards, remains of course for ever closed;—not from any such seat of imperturbable tranquillity, forasmuch as what is never in a place can never be removed out of it—but from bosoms actually labouring under the green-eyed malady, such as the bosom of this troublesome and meddling sheriff. But let us see what this remedy is, which, being swallowed, ought to operate as a specific against suspicion: viz. in a constitution actually labouring under, or at least predisposed to, the species of green-sickness above mentioned.

[‡ ]Special juries are struck under an order of court only.]—Add, the court never knowing any thing about the matter. The order (as we have seen) a mere scrap of spoilt and wasted paper:—a mere pretence for fee-catching:—a pretence, and that a false one. (See Part I. Chap. VI.) Of gold, not of post, is the powder, by which the malady of suspicion is so regularly removed out of, or rather expelled from, learned bosoms and learned eyes.

Alas! how different the ideas presented by the same object to unlearned ones. By the very document by which all suspicion had ever stood excluded from the learned bosom—by this very document it is that suspicion was not only planted, but rooted, in the unlearned one. By this so oppositely working document, what I do not mean is—the visibly existing, though in respect of its purport falsely pretended, not to say forged, order of court—what I do not mean is that too visible piece of mendacious and polluted paper:—what I do mean is the invisible order of the court—the neither visible, nor audible, nor yet the less perpetually standing, and intelligible, and efficient, and general order, continually issued by all the courts, to the master packers of their six or seven respective offices, requiring them to choose always proper persons, and never any other: viz. the secret members of the no longer secret list, which, as we have seen, stand indebted to the Lord Chief Baron probably for existence, avowedly for protection and defence.

Look to the Temple—look to Lincoln’s-Inn—look where you will—look to what part of the constitution you will,—everything is consistent you will find—everything is orthodox—among learned gentlemen.

The use of a jury is—to serve as a check to power—to power that would otherwise be arbitrary—in the hands of a judge. The use—or at least one use—of the House of Commons, is—to serve as a check to power—to power that would otherwise be arbitrary—in the hands of the crown. In the case of the sort of jury termed a special jury, symptoms of a sort of feveret were, by this learned gentleman, observed—observed but not confessed, to have been produced by suspicions, imputing to this kind of jury an habitual leaning towards the crown side in crown causes. For the removal of this complaint, a febrifuge of sovereign virtue and efficacy, having been discovered by him in the above-mentioned remedy, viz. an order of court, let us apply it—I mean in idea—(for the application of it in substance belongs to, and is with perfect regularity and efficacy performed by other hands) to the case of the House of Commons. “One circumstance (let us say) ought to be attended to, which must remove all suspicion on this subject: it is this; viz. that members ‘are struck,’ (chosen) under an order of court,” (viz. the court at St. James’s) “only.”

Now is not this—deny it who can—a most composing opiate?—a very specific against all political “ferments?” I mean, against all such as are liable to break out within doors;—and, if it be good in either of the two cases, can it be otherwise than good in the other? And, as to this our learned practitioner, notwithstanding what we have seen escaping from him about the guinea-corps, can any doubt be at present entertained to the prejudice of his orthodoxy? and, if he is not already an attorney-general, or a solicitor-general, or a master of the rolls, or at least a Welsh judge, is it not high time he should be?

[∥ ]Fault of defendant’s solicitor, if he does not obtain a respectable list.] Alas! what a smoke is here! But can so much as a puff be necessary to dispel it? Respectable? Yes: in one sense, at least, of any want of respectability there cannot be any fear; viz. of that sort of respectability which has office and guineas for its makers. Of that sort of respectability there is not among the candidates any absolute want, even before admission into the office: and this qualification, the guineas, if they did not find, would make. Here then is the respectability which not only does not stand in need of any exertion on the part of the defendant’s solicitor to obtain it, but which, spite of his utmost exertions to the contrary, will be sure to be obtained, and constantly obtained.

Impartiality—security against all influence—all corrupt influence—descending from above?—Is this the true English translation for the “respectability” of this so learned, and yet, or thence, so charitably thinking and confiding gentleman? Eight-and-forty persons, all named by, or under the influence of, the powers above, and the faculty of discarding no more than twelve of them a security by which, according to this learned gentleman’s necessitarian theory, “all suspicion,” viz. of any want of “respectability,”—of “respectability” (in this sense must we say?) “must be removed?”

Patients, 48:—and all 48 expected to be cured by a remedy which applies to no more than 12? Were the learned gentleman a physician, would this be his style of practice?

[* ]There is one reform, &c.] Reform? and from a bosom from which all suspicion that points upwards—all suspicion of the possibility of any need of reform—has been sentenced to be transported for life?

Gentle reader, patience. The reform is of the temperate kind—compose yourself. “Wholly in the sheriff’s power,” says the learned inventor and adviser of this reform. Wholly out of my power, (in the note we shall see to this same letter) says the sheriff: and so accordingly (as we have seen, and shall farther see) says the act.

With all his dispositions to find “perfectly correct” whatever came from above, or came recommended from above, it may be suspected of this learned gentleman, that he was—not completely in the secret. To the permanence, so decidedly approved and effectually protected by the learned judge, he sees not indeed the shadow of an objection: yet the sort of persons who, beyond all others, could be depended upon, not to say who alone could be depended upon, viz. for constancy of attendance, and for that obsequiousness without which constancy of attendance would have been of no use, these are the sort of persons whom so hardheartedly, as well as inconsistently, we see him thus devising plans for getting rid of: though, to be sure, if, while he was thus giving the advice, he knew it to be an advice that could not be pursued, as he must have done had he looked at the acts on which he grounded it, “the case is altered,” and both these imputations vanish.

As to the question just mentioned, between the sheriff and this his learned adviser, it stands thus:

The statute 3 Geo. II. c. 25, is the only one that has any bearing upon the subject: and, upon the ground of this statute, the matter stands thus:—

1. By § 17, “where any special jury shall be ordered by rule of any of the said courts to be struck by (here it is “by” not “before”) the proper officer of such court . . . . the sheriff . . . . shall be ordered by such rule to bring . . . . before such officer, the books or lists of persons qualified to serve on juries . . . . out of which juries ought to be returned by such sheriff . . . . in like manner as the freeholders’ book hath been usually ordered to be brought, in order to the striking of juries for trials at the bar . . . . and in every such case the jury shall be taken and struck out of such books or lists respectively.”

And in what manner, on the occasion thus alluded to, had the freeholders’ book been usually ordered to be brought for the purpose so alluded to? This is among the points, in relation to which the lawyers concerned in the putting together this piece of patchwork took care, according to the custom among lawyers, to leave us in the dark. For, as often as, by the cry of any part of the injured people, they have been forced to make a show of affording relief against this or that part of the system of judicial abuse, organized by, and for the benefit of, the judges, one of their maxims is—to leave the common, alias unwritten law of their own making, to form the groundwork, applying to it no more than here and there a patch of statute law: that thus the uncertainty, which forms the essential character of the groundwork, may spread itself over the patch.

2. In § 1 and 2 of this same act, directions had been given for the making up of “books” containing lists of persons qualified to be returned to serve on juries: and this without any distinction mentioned as between common and special juries. In that section (§ 17) by a reference made from it to these two former ones (§ 1 and 2,) nothing (it would seem) would have been more easy than to say—that the books, made up according to the direction given in these two sections (§ 1 and 2,) are the books here meant by “the books,” which here, for the purpose of nominating persons to serve on special juries, “ought to be returned by such sheriff.”

But, by an understanding among the lawyers within and without both houses, and the clerks within the same, and the speakers to whom belongs the nomination of the said clerks, matters have all along been settled in such sort, that, be the statute ever so long, it shall be impossible, otherwise than by words of vague description, to make any reference from any part of any statute to any part of the same or any other statute.

In the printed editions (it is true) we see each statute divided into sections, and each section numbered. But this is the work of the printer only, or his editor: and a man who, in the penning of any fresh statute, should, for the purpose of making a reference to any preceding statute, or part of the same statute, be unguarded enough to make use of any part of the numeration table in the description of such preceding statute, or part of a statute, would find himself overwhelmed, with expressions of rage and terror, excited by so fee-checking an innovation—rage and terror, covered by a mask of contempt, as if excited by the contemplation of his ignorance.

For, on the one hand, clerks being paid for copying, according to the multitude of statutes and the length of each, and the confusion thus organized in each producing a perpetually-increasing demand for more—lawyers, on the other hand, being, some of them, paid in like proportion for the drawing of statutes, and all of them having everything to gain by the confusion that pervades the substance of the several statutes, and the universal and perpetually-increasing uncertainty in which that confusion beholds its fruit—hence this rule, by which it is provided, that an act of parliament, let it of itself constitute ever so considerable a volume, shall, like the mathematician’s point, be a thing without parts, is a rule as sacred among these several learned and official persons, as any article in the 39 ever was to the most orthodox of the right reverend prelates that grace and sanctify the Upper House: and whoso should propose to abrogate it, would thereby become a worse than a popish or other ipso facto excommunicated convict—a malefactor ipso facto convicted of jacobinism.

In regard to this article, symptoms of heresy have now and then, it is true, been manifested in the Commons, in so high a quarter as the chair of the present Speaker: (See Speech of the Right Hon. Charles Abbott on Mr. Curwen’s Purity of Parliament Bill, in Cobbett’s Register for June 10, 1809; to which former manifestations of the like complexion might upon search be added:) but in this heresy there is so little of contagion, that the British Themis seems little more in danger of being healed of her habitual vertigo by this one hand, than the Church of Rome was of being purged of her errors by the Pope, who, about the middle of the last century had acquired, somehow or other, the surname of the Protestant Pope.

“The books or lists of persons qualified to serve on juries . . . . out of which,” according to § 17, “juries ought to be returned by such sheriff,” are they then the same books or lists, the manner of making up which is prescribed by the two first sections of this same act? Vague and incompetent as is the mode of description, it seems difficult to conceive how, if called upon to give, by his interpretation, an answer to this question, a judge could avoid answering it in the affirmative.

If so, what the sheriff, in his above-mentioned, and herein-after printed, note (p. 151,) on this part of the advice of his learned advisers, observes, in relation to this matter, is correct; viz. that it is not “in the power of the sheriff”—of any sheriff—to do that which by this his learned adviser this sheriff is advised to do, viz. “to correct the freeholders’ list by expunging . . . . names.” For, if the books, a description of which is given in the above-mentioned two first sections—and of which it appears that they are the only sort of books to which the appellation of “freeholders’ book,” employed in this 17th section, can apply—are really the books that, under this same 17th section, ought “to be brought before the said officer”—(to wit, the master packer of such office in such court)—to serve for the striking of special juries, these are books, of which, in § 2, it is provided, that they shall respectively be made by the “sheriff,” who “shall . . . . take care that the names of the persons contained in such duplicates shall be faithfully entered alphabetically . . . . in some book . . . . to be kept by him . . . . for that purpose.” “In such duplicates,” says the act: of which sort of instrument here called a duplicate, it is to the present purpose sufficient to observe, that it is an instrument of somebody else’s making, and not of his, viz. the sheriff’s: and whether, had Mr. Sheriff Phillips, in pursuance of the advice herein given to him by this his learned adviser, “expunged” any of the names contained in such duplicates, the “names . . . . contained in such duplicates” would have been “entered faithfully,” may be left to any man to pronounce.

A course, indeed, which might be taken without much difficulty—I mean, physical difficulty—is, after entering the names “faithfully,” to pursue the advice given by this learned adviser, and accordingly, either once for all, or toties quoties, to “expunge” names. But whether, after any such purification, or number of purifications performed, the book presented to the officer of the court—viz. the master packer—as and for the freeholders’ book, could with propriety be said to be the freeholders’ book, is another curious question, which howsoever curious, and to those who would be paid for playing their parts in the trial of it, an agreeable one, I would not be the man to advise any other man to cause to be tried at his expense. It is one of those questions, in respect of which it is difficult to conceive how, in case of its being tried, for example, on an indictment, a chief judge, in his endeavours to persuade either a jury, even though unpacked, or his fellow-judges, to decide—either for the king or for the defendant, whichsoever happened for the moment to find most favour in his sight—could experience any difficulty: and as for this our reforming sheriff, supposing him, in pursuance of this learned advice, to have become such defendant, what sort of favour he could reasonably expect at the hands of the learned judge who, in that case, would have the trying of him, may be left for him to imagine from the excursion which, in the case of Carr against Hood, was made not long after [Editor: illegible word] that same learned judge: viz. if not for the [Editor: illegible word] [Editor: illegible word] effect of giving him a sample of it in the character of a witness: always remembering that [Editor: illegible word] such purification, if performed with any degree of consistency and steadiness, the effect would be, as in his instance it had been the declared object, to make things better than well; and in so doing, to destroy not only the works, but the very principle, of that elegant art—that branch of the art of design—which exercises itself in the grouping of jurors:—an art, the planting and cultivation of which has already been affording so much occupation to the wisdom of ages.

The case is—that the statute in question, having, like most other statutes, been penned as above, for the express purpose of being misconceived, has, in pursuance of that purpose, been put into such a form and method, that both the learned adviser, and his official client and corrector, found it more easy and pleasant to speak from imagination than from the act.

It was the imagination of the learned adviser that presented him with the idea of its “being wholly within the power of the sheriff “to correct the list” in question, by “expunging names” out of it. It was the imagination of the sheriff that presented him with the idea, that “to make any alteration in the returns” is not merely “forbidden,” but “forbidden under a ‘penalty,’ and that a heavy one.”

As to the omission—and let us add, the expunction—of names, of the description in question; forbidden it may indeed be said to be, though in the rather indirect way we have just been seeing, viz. by requiring that the names of the persons contained in such duplicates be faithfully entered: but, to the offence of which this indirect description is given, no penalty is attached.

In the next section, it is true, viz. § 3, comes a clause, by which a penalty is appointed. But the offence to which this penalty is attached is—not that which consists in the leaving out of a list of the sort in question a name which ought to be in it, but the putting into it, or at least acting as if there had been put into it, a name which ought not to have been in it.

Then, as to the “heaviness” of the penalty, if the real and effective weight be here in question, viz. the weight of it as estimated by the quantity of money which the levying of it takes out of a man’s pocket—if this be what our sheriff had in view, very inadequate was (speaking with respect) the conception entertained by him, for the moment at least, of the real and effective weight of statute penalties. Of the penalty here in question, the minimum is no more than forty shillings, and the maximum but £10. But even this £10, if £10 it be, is not to be levied but “upon examination in a summary way” (§ 3,) in the manner herein intimated: in which case, at the expense of £10 at the utmost, he would have it in his power to exonerate himself of any further demand on this score: whereas had the penalty been no more than Is., to which in this case, he would hardly have given the denomination of a “heavy” one—this single shilling being to have been recovered in a regular way, I for my part would not be the man to save him harmless for ten times the maximum of £10—no, nor for a good deal more.

† What will be amusing enough—and (to any man in whose bosom the interests of mankind are wont to excite any warmer sympathy than the interest of Judge and Co.) consolatory, is—to observe the two traps set for the unlearned man, one by each of these his two learned advisers, and his unlearned good sense saving him from both.

To make “application to the court,” viz. in the only proper manner (learned gentlemen fee’d and so forth) but without any ground for it, is the learned advice given from the Temple.

To get himself indicted or informed against before Lord Ellenborough—(mark well, before Lord Ellenborough)—indicted for an attempt to commit a reform, viz. by cutting up the most valuable branch of the packing trade—indicted, and this with at least a plausible ground, say rather a good ground to build a conviction upon.

After all this learned advice, including the preeminently learned hint not to risk his reputation for “discretion,” by any such attempt as that of “making us better than well,” the unlearned person took a course which assuredly would not have been advised by any of the three, and laid bare the whole matter to the public eye.

And here we see matter not only of satisfaction, in respect of the escape made by the bird from the snares set for him by both fowlers, but of gratitude for the instructive song in which he has sung of it.

[† ]See note †, page 151.

[‡ ]With a view . . . . to . . . . their adding to that independence.] Receipt for adding to independence:—Solicit and solicit, till you have succeeded in getting into a situation of profit, out of which, without a moment’s warning, for anything or for nothing, you may be let drop at any time, without possibility of complaint, and without knowing why or wherefore.

What minister, or other man in power, is there, who, on the part of all sorts of men, whose functions are said and supposed to act as checks to his own, would not be content to see “independence” not only thus “added to,” but, if after such an addition there could be anything more to add to it, thus rendered complete? A system of this sort would be not less efficient (and how much more decent would it not be?) than the giving licence, by act of parliament, to all contracts whereby a member sells himself to a minister—licence and protection, on condition that the terma employed in them shall not be “express.”—(See the Perceval Parliamentary Purity Act, 49 Geo. III. c. 118, § 3.)

[∥ ]Deeply concerned and interested in the guinea-trude.] Imprudence—treachery—telling tales out of school—such are the reflections, which by a man, of more warmth and learning than candour or reflection, might be apt to be cast upon the disclosure thus made by our learned adviser. Against a load of imputation, which, though to a first glance not altogether without colour, will on an impartial examination be seen to be not more serious than groundless, it would be ungenerous at least, if not unjust, to leave him altogether without defence. If of the appellation (guinea-man) and of the habits and dispositions which it imports, the existence were really notorious—notorious in any such degree as that in which he understood them so to be—on this supposition, to have kept them from the knowledge of a sheriff, and especially so active and inquisitive a sheriff, and one to whom, in less than a twelvemonth, the number of applications made for situations in this very corps amounted to above a hundred (Phillips. p. 173,) would have been altogether hopeless: while, by the frankness of the communication, all suspicion of wishing to throw a veil over the practice was, in the most promising at least, if not altogether effectual manner, obviated.

Between judges, master packers, and guineamen, all suspicion of anything like an understanding was, in this refined and indirect way, much more effectually repelled, than it could have been by any direct arguments: since, of any such arguments, the effect would have been, in the first place, to bring forward an idea, which could not be too carefully kept out of sight; viz. the idea of a state of things, the existence of which would, if once made matter of argument, be much more likely to be confirmed by it than disproved.

Against reform in every line, it begins to be discovered, that much more effectual war may sometimes be carried on by adoption, than by open opposition. In a very high place, indeed, go almost when you will, you may hear the abuses of the law not only acknowledged, but inveighed against:—just as if anything but will were wanting to the removal of them;—just as if in the whole world of law there were any one thing of which the learned orator had any tolerably clear conception, except the value of those same abuses;—just as if the most mischievous of those abuses were not the food on which himself, and his closest connexions have grown so fat upon;—just as if they were not dearer to him than the apple of his eye.

[* ]Likely to do wrong] The faith of this learned person in the virtue of an oath is truly edifying. Unsanctified by this principle of sanctification, the probity of these guinea-traders does unquestionably not appear to have been set by him at a very high rate: give them an oath to swallow, every impure property is, by this consecrated vehicle, carried off. Note, that the oath by which the swallower is rendered thus unlikely “to do wrong,” is the very oath which, as often as any difference of opinion has place among the elect twelve, is regularly productive of perjury—of perjury on the part of some portion of the number from one to eleven inclusive: I say of perjury; unless it be supposed, that, by that terror of inevitable and insupportable torture by which the will is subdued, the understanding is enlightened and converted; and that of him whose power of endurance is the weakest, the conviction and conversion is regularly and proportionably the most sincere. An oath “preservative against corruption!”—an oath composed of vague and unbinding generalities, such as those of which such effectual care has regularly been taken that it shall be composed!

Alas! by what fatality did so simple an expedient escape the piously scrupulous and learned mind, that has the royal conscience in its keeping—so cheap a defence of nations against corruption—as the advising his Majesty to give to the department of the commander in chief the benefit of a pledge of purity, correspondent to that by which, in the judicial department, the difficulty of “doing wrong” has been rendered thus extreme! “The person whom you shall nominate to an office within your department shall, in every instance, be, in every respect, the person the best qualified for the filling of that office—So help you God!” With such a security, the child in leading-strings might have been trusted with a commission as safely as his father, and the wiles of Mrs. Clarke would have had no more power over the virtue of the commander in chief, than those of Dalilah had over Samson before his hair was cropt.

[† ]Not as matters of profit.] The severity of the learned gentleman’s virtue has, upon this occasion, displayed itself in an opinion, which it is somewhat easier to admire than to understand. That a declaration, to the effect in question, should be incorporated into the purity-securing oath?—is that what he means to recommend? “I A. B. (for example) “do declare, that the guinea just received by me has been and is ‘received only in the way of compensation for actual expenses and loss of time, and not as a matter of profit. So help me God!” Or if duly construed and put into a tangible shape, would the proposed security be found to amount, for example, to something to this effect? viz. that on a motion, regularly made by some learned gentleman, opposable or unopposable by learned gentlemen on the other side, a rule should, if the court think fit, be with equal regularity made, ordering that “an account be taken by the master of the actual expenses incurred by each special juryman, viz. in the shape of chaise hire, and subsistence upon the road, as also of the compensation due to him for loss of time; with a direction to allow out of the guinea (being the greatest sum allowed by the act) no greater sum than shall be sufficient to cover such actual expenses, together with such due compensation as aforesaid:—costs of the application to await the master’s report.”

The latter I give as being more particularly in unison with the general spirit and tendency of such amendments of the law as are to be found in the statute book, made at the suggestion, or in conformity to the advice, of the gentlemen of the long robe. But as to this opinion in particular, whether it be in legal religion, as in the first case, or in legal practice, as in the last case, that the truest interpretation is to be sought for it, must be left for the reader to determine.

[* ]The Court of Session.

[† ]The Small-debt court.

[‡ ]Exactly as it stands, this paragraph was written on the 12th of July 1809: being some days before the sailing of the Walcheren expedition.

[∥ ]Delivered March 1807. Published by Constable and Co., Edinburgh; and Murray, London. “The loser . . . . (he is there made to observe) must be disobliged at the issue of every cause . . . . . The winner . . . . sometimes . . . . thinks his conquest dear bought . . . The lawyers . . . . were often irritated, that the court did not see with their eyes . . . . Hence the sallies of satire and of scandal . . . . And to these joint causes he was willing to ascribe much of the supposed clamour of the country . . . . and not to any material defect in our present system . . . .” Thus far the far-famed poet: whose modesty, when confessing himself “somewhat abstracted from professional pursuits,” (ib. p. 48,) could not save him from being selected by Lord Chancellor Eldon to carry the above avowed opinions into practice. Not any material defect in the system!—in a system to which alone the English system is indebted, for not being perhaps the most profligate system that ever was devised, for tormenting and pillaging men on pretence of justice!

[* ]On a certain day to this compiler unknown.] Unfortunately, as to this point the original memoirs have left us—in the dusk at least, if not in the dark. That the visit of the sheriff to the remembrancer’s office was antecedent to the date of his above-mentioned letter to the Lord Chief Baron, seems probable: for, though we are not expressly informed of its being so, yet as the mention made of it is antecedent to that made of the letter, such, in default of more positive information, it seems natural to conclude was the order of the facts. A circumstance, indeed, by which the force of the inference may perhaps be thought to be somewhat lessened, is—that almost immediately after comes an incident stated as subsequent to the month of July, whereas it was the month of April that closed, as well as opened, that epistolary correspondence. But the former hypothesis may perhaps be found to receive confirmation from another circumstance: viz. the symptoms of pliancy which, it will immediately be seen, were produced by, and at the time of, that visit—I mean the pliancy of that moment, when compared with the restored rigidity of later times.

Before the result of the epistolary application made to the superior was known, the personal application would hardly have been made to the subordinate. Now, in this interval, there was ample time for the communication that would naturally be made of the matter from the superior to the subordinate: and, if any such communication had been made, the compliance, the unwillingness of which seems pretty conclusively evidenced by the subsequent rigidity, would hardly have taken place.

[* ]“I attended,” says the sheriff, “at the office of the deputy remembrancer of the Exchequer with the freeholders’ book, and had previously provided myself with a list of persons who had served in causes at Nisi Prius within two terms. The deputy remembrancer recognised and admitted the force of the above recited clause, (4 Geo. II. c. 7, § 2,) and in striking two juries at that time was, to a certain extent, influenced by its principle.” Phillips, p. 158.

[† ]“I have since learned, however,” continues Sir Richard from the passage last quoted, “that no regard is paid to the provisions of this clause, and that the juries are still,” (on the 20th of September 1808, the day on which his publication bears date,) “struck nearly as heretofore. On examining the list of persons returned to serve on special juries in the Exchequer in the month of July, I have observed,” continues he, “the name of one person serve in nine causes, of two or three in eight causes, and of several in seven or six causes,” p. 159.

[‡ ]The solicitor (of the crown) is permitted to interpose.] In relation to the incident here spoken of, I suspect some want of clearness, if not of correctness, in the information, on which this part of the statement, thus made by the sheriff, was grounded:—

1. Not only in this, but in all the other packing offices (according to the practice, as stated in all the books,a ) the solicitor, as well on this side as on the other, has, to one purpose, a right—an acknowledged right—to interpose; viz. to the purpose of striking out his twelve, out of the forty-eight members of the gross occasional list, regularly nominated by the master packer.

2. This interposition of his—this interposition, considered by the sheriff, and by him denounced to the Lord Chief Baron, as a cause of partiality in the selection, at what stage of the process is it considered as taking place? At the time regularly appointed for mutual defalcation, if, by the exclusion of twelve out of the forty-eight, any apprehension, entertained by this solicitor, of a deficiency in the article of obsequiousness, would be satisfied, in such case all conversation, whether to the effect here spoken of, or to any other, is needless or superfluous.

3. That, the whole of this gross list being at the nomination of the master packer, any real danger of non-obsequiousness towards the crown side should exist, except in the extraordinary case of corruption successfully applied by the individual, the defendant, has been over and over again shown to be a state of things altogether improbable: that in that state of things any such danger should be so much as apprehended, seems not very probable. To what end, then, any such indirect and mendacious interference?

At what point of time? Antecedently to the declaration and production made of the gross occasional list—made, in form and ceremony, by the master packer (or his clerk) at the very time when, by the defalcation of 24, viz. 12 on each side, the number on that gross occasional list has just been brought down to the 24 on the reduced list? or not till after that time?

1. If antecedently, it would suppose, between the master packer, and the solicitor of the crown (the solicitor of the customs, for example, or the solicitor of the excise,) a perfect and collusive understanding: yet, at the same time, on the part of the solicitor, a fraudulent sort of language, such as would by that collusion have been rendered unnecessary. And moreover, this conversation being carried on secretly and collusively, between these two, at a private meeting, the solicitor on the other side not being present, how should it transpire? and not once only by accident, but, as here represented, habitually transpire?

2. The time at which insinuations of the sort in question have been made, suppose it now to have been the very time of the regular and tripartite meeting between the two opposite solicitors and the master packer, at his office. On this occasion, if from such insinuations any advantage could possibly be gained to the crown side, the case must be, that after the selection constantly made of the 48 by the master packer—all 48 being persons who cannot but have been put in for the purpose of affording and having an actually serving list, composed of persons who, “with little variation,” are in constant exercise—and therefore selected for the very purpose of producing that result, which, by the admission made by the Chief Baron, is proved to be actually and constantly produced—the case, I say, must be, that after a selection thus made, the faculty of striking out twelve names—twelve names out of a list so formed—has frequently, by the crown solicitor, been regarded as not yet sufficient for his purpose: and on this supposition, and this supposition alone, it is, that, in addition to the 12 duly put aside by him in the exercise of his right, some number of others have required to be unduly put aside, by means of the fraudulent insinuations here above supposed and mentioned.

This being the object, how then, at the time now in question, viz. that of the regular meeting, is it to be accomplished? Probability seems to be already out of the question: as to possibility there seems to be but one mode so much as possible, and that is this:—The list of 48 being produced by the master packer to the two solicitors, the crown solicitor takes it up and says—“This man” (speaking of A) “will not attend: should his name remain upon the reduced and summoned list? Putting him on this gross list is therefore of no use: out with him, then; and, to make up the 48, let us have somebody else.” This, speaking of A; and so on in regard to B, C, D, &c. whatever may be the number of those whom, on this supposition, it appears to him advisable to endeavour in this way to get rid of.

But while, by means of this insidious language, this fraudulent practice is carrying on—the defendant’s solicitor—what is he about all this while? “If this man, as you think, will not attend, then strike him out: or if you insist that the whole number to which your power of striking out extends shall remain to you undiminished, let me strike him out.” Such would, naturally—and, morally speaking, necessarily—be the language of the defendant’s solicitor, unless he too were in the league against his client’s interests and rights.

It is, I say, before the commencement of the operation of mutual erasure, that, at that tripartite meeting, any such conversation, if at all, must have been held:—for, after that operation, the 48 being, by the striking out of 12 on each side, reduced to the 24, with what colour of reason or honesty could the crown solicitor require—and on no other pretence than that of expected non-attendance—require, that A, and B, and so on, should be struck out of this reduced list?

“Why then did you leave his name in?” exclaims immediately the defendant’s solicitor: “and to what purpose strike it out now? Suppose his name left in; and therefore suppose him not to attend: where is the inconvenience? there remain still 23 others: and, if there were a hundred, 12 of them are as many as can serve. But if this man be now struck out, another man must now be put in: and, if another be now put in, I must have the option of striking him out, just as I should have had, had his name stood among the original 48.”

On this supposition, then, a serving list of 12, “composed with little variation of the same persons,” must have been the result of a gross list of 48, such as, though constantly formed by the master packer, to whom every one of their characters and habits of acting is by long experience so perfectly known, is notwithstanding so oddly constituted, that by striking out of the number any twelve that he pleases, the crown solicitor cannot yet, without increasing the discarded number by insidious practices, get such a jury as will be fit for his purpose. But instead of a constant good understanding between these two servants of the crown, this would suppose a constant conflict:—on the part of the master packer, disposition to thwart, on every occasion, the purposes of the crown solicitor; which object, after all, notwithstanding the existence of a power adequate to the effect, viz. the power of choosing the whole 48, is, according to all the evidence in the case, never compassed on any occasion.

Supposing, therefore (which I see no reason for not doing,) supposing such conversations to have really passed as the information given to the sheriff states to have passed, I cannot but conclude them to have been perfectly innocent: and that for this simple reason, that no point could be expected to be gained by them were they otherwise.

To what circumstance, then, attribute the mention thus made of them by the sheriff in this letter of his to the Lord Chief Baron? Evidently enough to this, viz. that the conception he had been led to form of the mischief fell thus far short of its real magnitude: the packing, which by the information he had received had been presented in the character of an irregular, and thence easily corrigible abuse, was, in truth, the result of regular and inveterate, and thence, unless by extraordinary measures, not corrigible, practice.

But under charges such as these, the curious circumstance is the silence of the judge. “A judicial officer under your dependence is habitually in league,” says the sheriff, “with the solicitor on one side; and, being so in league with him, leagued with him in a conspiracy against justice, permits him to set aside jurors, till he has got a jury to his mind.” “Well,” says the judge, says, I mean, by his silence—“well,” says the judge, “and if he does, what do I care?” nor yet merely by his silence; for with all this before him, we shall see him pronouncing it in express terms, and without exception or distinction, to be “well;” departure from it, better than well; meaning the opposite to well. Accordingly, in the course of the letter which we shall come to presently, we shall find his lordship speaking of certain results, which, being by his lordship regarded as beneficial, reconcile him most perfectly to the means, whatsoever they may be, by which they are effected: yes, whatsoever they may be; and although this collusion, partiality, and conspiracy against justice, had thus been alleged to be of the number.

All this while the statement was, to his lordship’s knowledge, in many points, incorrect. Why then bestow upon it this virtual admission? Because the real state of the practice was so much worse than the state thus ascribed to it. The assumed root ascribed to the corruption was nothing worse than casual irregularity; nor could the cause so assigned have been adequate to the production of the effect:—whereas the true root was, and is to be, found in regular and established practice: and that practice so ordered as to render the corruption sure: the nomination completely, as well as constantly and avowedly, made by an officer in the dependence of the judge. Observing the hound to be upon a wrong scent, the fox sat quiet while the enemy pursued his course.

[* ]Wilks against Eames Andrews, p. 52, Mich. 11 Geo. II. anno 1737. The court said, “that though it was not usual, before the said act, to grant special juries without consent, yet in some instances, and for special causes, it was, and might be done: . . . And Lord Chief Justice cited the King and Burridge, Pasch. Geo. [I.] 10, when upon search it was found that no special jury had been granted for thirty years then last past without consent; and the Lord Chief Justice Pratt was then of opinion, that the court might grant a special jury without consent, but the other judges differed;” i. e. were of opinion that the court could not grant a special jury without consent.

From this it seems, that at both periods the Chief Justices knew what they were about, and accordingly invented pretences for thus forcing in the special jury system: but that, in Pratt’s time at least, viz. anno 1725, the puisnes were not in the secret: inasmuch as they opposed the extension thus endeavoured to be given to it.

From this it may be seen that a special jury, in the character of a subject and instrument of package (unless before this time the crown lawyers assumed, and by the judge were permitted, to exercise a right of commanding a special jury in crown causes, as would naturally be the case) as well as a source of increased lawyer’s profit, took its rise from this act: and, as well in the character of an occasional source of corruption as in that of a constant source of lawyer’s profit, it has already been seen how valuable an engine it has proved in the manufactory of abuse.

In the character of an instrument applicable to the purpose of corruption, our estimate of its value may receive some assistance from a circumstance mentioned in the same Report. In “the case of the corporation of Bewdley,” the trial being at bar, twenty guineas a-piece, it appeared, had been given to each juror. Nor would the enormity of the sum have transpired, but for an application made by the losing party for what is there called “lowering it,” which the court did: viz. to five guineas, i. e. forbore to oblige the losing party to pay any more than five guineas, not obliging him to pay the twenty; for, as for taking out of the pocket of each juror fifteen guineas out of the twenty he had received, that was altogether out of the question:—that was what could not be done. The money was already in their respective pockets; and there was neither statute law nor judicial practice that could have furnished so much as a pretence for making them disgorge it.

In the same case, in speaking of the quantum of the extra allowance given to these well-selected assessors, an observation made by Strange, Solicitor-General, is—that “though the practice is to pay them more than to common jurors, this is mere matter of generosity, and ought not to be reimbursed by the other (meaning the losing) party.”

All depending on generosity, and the crown, i. e. its servants, and they alone having it in their power to be generous, and without bounds, as well as without any expense to themselves, it may be imagined what sort of a chance an individual would have, under a set of jurors, all named by this one party, possessing, and all along exercising, the power of either rewarding them, at the expense of others, to an unlimited amount, or not rewarding them at all, according as they behaved.

The crown, had it or had it not a special jury at pleasure, and not depending on the consent of the party on the other side?

A circumstance indeed that contributes to render it probable, from the first invention of special juries, the king, i. e. the servants of the crown, never failed to have a special jury of this sort for asking for, is—the care which, at the early period above mentioned, viz. the beginning of the reign of King William, was taken, that the faculty of striking out the 12 out of the 48 should not, on the part of either party, be exercised, without its being specially applied for, and on application ordered.

And so lately as in the time of Lord Mansfield, it is stated as a rule, that when the solicitor omits to attend after notice, the master in K. B. may strike the jury ex parte. Cowp. 412. Rex v. Hart. Hilary, 16 Geo. III. B. R. 1776.

In such cases as were left to a common jury that is, in causes theimportance of which was not sufficient to excite any interest in the bosoms of the judges or their connexions, chance was the instrument they saw directed to be employed for the reducing the number on the gross list to twelve—the number adapted to the serving list. Had justice been the object, here then was a principle and a precedent to have pursued. But in cases that were deemed worth their attention, these ministers of justice knew better than to trust in any degree to chance, what might be secured by prudence.

In the case in Cowper, before Lord Mansfield,a a curious enough circumstance is the carelessness, real or simulated, of the judge, in regard to the person by whom the twenty-four should be struck out, in case of a refusal on one side (in the case in question it was on the side of the defendant) to strike out the twelve—the right of striking out which, according to the practice, belonged to each side, and consequently to that side.

What the reason of the case plainly enough required was—that the party attending for the purpose (in the case in question, the solicitor of the crown) should exercise his right of striking out his twelve, and then, the defendant’s solicitor making default, the right that belonged to him should, from necessity, be exercised by the supposed impartial officer, the master.

In this case, both on the part of the counsel by whom the motion is made, and on the part of Lord Mansfield, the judge, by whom the prayer of the motion is refused, an assumption made is—that, in case of such default, it belonged to the master, and him alone, to strike out the whole four-and-twenty: that is, twelve for the defendant who made default, and twelve for the solicitor of the crown, who made no default.

In this case had there been any real distinction of interest and feelings, nothing could have been more palpably partial and iniquitous, than to put it into the power of one party, by thus wilfully making default, to deprive the other party of his right. Yet that apparent injustice—and this too to the prejudice of the crown—was committed. Why? Because between the servants of the crown in the judicial line, and the servants of the crown in the agency line, the understanding was so entire, and because amongst them it was so perfectly well understood, that, so far as concerned the interests and wishes of the servants of the crown of all descriptions, whether the person by whom the striking out were performed were the master packer or the crown solicitor, the effect would be just the same. Thus it is, that to any scrutinizing eye the secret, had there been any, would have been betrayed. But there was no secret in the case: and, as to any scrutinizing eye, there was none such within sight.

[* ]There is one reform, &c.] Reform? and from a bosom from which all suspicion that points upwards—all suspicion of the possibility of any need of reform—has been sentenced to be transported for life?

Gentle reader, patience. The reform is of the temperate kind—compose yourself. “Wholly in the sheriff’s power,” says the learned inventor and adviser of this reform. Wholly out of my power, (in the note we shall see to this same letter) says the sheriff: and so accordingly (as we have seen, and shall farther see) says the act.

With all his dispositions to find “perfectly correct” whatever came from above, or came recommended from above, it may be suspected of this learned gentleman, that he was—not completely in the secret. To the permanence, so decidedly approved and effectually protected by the learned judge, he sees not indeed the shadow of an objection: yet the sort of persons who, beyond all others, could be depended upon, not to say who alone could be depended upon, viz. for constancy of attendance, and for that obsequiousness without which constancy of attendance would have been of no use, these are the sort of persons whom so hardheartedly, as well as inconsistently, we see him thus devising plans for getting rid of: though, to be sure, if, while he was thus giving the advice, he knew it to be an advice that could not be pursued, as he must have done had he looked at the acts on which he grounded it, “the case is altered,” and both these imputations vanish.

As to the question just mentioned, between the sheriff and this his learned adviser, it stands thus:

The statute 3 Geo. II. c. 25, is the only one that has any bearing upon the subject: and, upon the ground of this statute, the matter stands thus:—

1. By § 17, “where any special jury shall be ordered by rule of any of the said courts to be struck by (here it is “by” not “before”) the proper officer of such court . . . . the sheriff . . . . shall be ordered by such rule to bring . . . . before such officer, the books or lists of persons qualified to serve on juries . . . . out of which juries ought to be returned by such sheriff . . . . in like manner as the freeholders’ book hath been usually ordered to be brought, in order to the striking of juries for trials at the bar . . . . and in every such case the jury shall be taken and struck out of such books or lists respectively.”

And in what manner, on the occasion thus alluded to, had the freeholders’ book been usually ordered to be brought for the purpose so alluded to? This is among the points, in relation to which the lawyers concerned in the putting together this piece of patchwork took care, according to the custom among lawyers, to leave us in the dark. For, as often as, by the cry of any part of the injured people, they have been forced to make a show of affording relief against this or that part of the system of judicial abuse, organized by, and for the benefit of, the judges, one of their maxims is—to leave the common, alias unwritten law of their own making, to form the groundwork, applying to it no more than here and there a patch of statute law: that thus the uncertainty, which forms the essential character of the groundwork, may spread itself over the patch.

2. In § 1 and 2 of this same act, directions had been given for the making up of “books” containing lists of persons qualified to be returned to serve on juries: and this without any distinction mentioned as between common and special juries. In that section (§ 17) by a reference made from it to these two former ones (§ 1 and 2,) nothing (it would seem) would have been more easy than to say—that the books, made up according to the direction given in these two sections (§ 1 and 2,) are the books here meant by “the books,” which here, for the purpose of nominating persons to serve on special juries, “ought to be returned by such sheriff.”

But, by an understanding among the lawyers within and without both houses, and the clerks within the same, and the speakers to whom belongs the nomination of the said clerks, matters have all along been settled in such sort, that, be the statute ever so long, it shall be impossible, otherwise than by words of vague description, to make any reference from any part of any statute to any part of the same or any other statute.

In the printed editions (it is true) we see each statute divided into sections, and each section numbered. But this is the work of the printer only, or his editor: and a man who, in the penning of any fresh statute, should, for the purpose of making a reference to any preceding statute, or part of the same statute, be unguarded enough to make use of any part of the numeration table in the description of such preceding statute, or part of a statute, would find himself overwhelmed, with expressions of rage and terror, excited by so fee-checking an innovation—rage and terror, covered by a mask of contempt, as if excited by the contemplation of his ignorance.

For, on the one hand, clerks being paid for copying, according to the multitude of statutes and the length of each, and the confusion thus organized in each producing a perpetually-increasing demand for more—lawyers, on the other hand, being, some of them, paid in like proportion for the drawing of statutes, and all of them having everything to gain by the confusion that pervades the substance of the several statutes, and the universal and perpetually-increasing uncertainty in which that confusion beholds its fruit—hence this rule, by which it is provided, that an act of parliament, let it of itself constitute ever so considerable a volume, shall, like the mathematician’s point, be a thing without parts, is a rule as sacred among these several learned and official persons, as any article in the 39 ever was to the most orthodox of the right reverend prelates that grace and sanctify the Upper House: and whoso should propose to abrogate it, would thereby become a worse than a popish or other ipso facto excommunicated convict—a malefactor ipso facto convicted of jacobinism.

In regard to this article, symptoms of heresy have now and then, it is true, been manifested in the Commons, in so high a quarter as the chair of the present Speaker: (See Speech of the Right Hon. Charles Abbott on Mr. Curwen’s Purity of Parliament Bill, in Cobbett’s Register for June 10, 1809; to which former manifestations of the like complexion might upon search be added:) but in this heresy there is so little of contagion, that the British Themis seems little more in danger of being healed of her habitual vertigo by this one hand, than the Church of Rome was of being purged of her errors by the Pope, who, about the middle of the last century had acquired, somehow or other, the surname of the Protestant Pope.

“The books or lists of persons qualified to serve on juries . . . . out of which,” according to § 17, “juries ought to be returned by such sheriff,” are they then the same books or lists, the manner of making up which is prescribed by the two first sections of this same act? Vague and incompetent as is the mode of description, it seems difficult to conceive how, if called upon to give, by his interpretation, an answer to this question, a judge could avoid answering it in the affirmative.

If so, what the sheriff, in his above-mentioned, and herein-after printed, note (p. 151,) on this part of the advice of his learned advisers, observes, in relation to this matter, is correct; viz. that it is not “in the power of the sheriff”—of any sheriff—to do that which by this his learned adviser this sheriff is advised to do, viz. “to correct the freeholders’ list by expunging . . . . names.” For, if the books, a description of which is given in the above-mentioned two first sections—and of which it appears that they are the only sort of books to which the appellation of “freeholders’ book,” employed in this 17th section, can apply—are really the books that, under this same 17th section, ought “to be brought before the said officer”—(to wit, the master packer of such office in such court)—to serve for the striking of special juries, these are books, of which, in § 2, it is provided, that they shall respectively be made by the “sheriff,” who “shall . . . . take care that the names of the persons contained in such duplicates shall be faithfully entered alphabetically . . . . in some book . . . . to be kept by him . . . . for that purpose.” “In such duplicates,” says the act: of which sort of instrument here called a duplicate, it is to the present purpose sufficient to observe, that it is an instrument of somebody else’s making, and not of his, viz. the sheriff’s: and whether, had Mr. Sheriff Phillips, in pursuance of the advice herein given to him by this his learned adviser, “expunged” any of the names contained in such duplicates, the “names . . . . contained in such duplicates” would have been “entered faithfully,” may be left to any man to pronounce.

A course, indeed, which might be taken without much difficulty—I mean, physical difficulty—is, after entering the names “faithfully,” to pursue the advice given by this learned adviser, and accordingly, either once for all, or toties quoties, to “expunge” names. But whether, after any such purification, or number of purifications performed, the book presented to the officer of the court—viz. the master packer—as and for the freeholders’ book, could with propriety be said to be the freeholders’ book, is another curious question, which howsoever curious, and to those who would be paid for playing their parts in the trial of it, an agreeable one, I would not be the man to advise any other man to cause to be tried at his expense. It is one of those questions, in respect of which it is difficult to conceive how, in case of its being tried, for example, on an indictment, a chief judge, in his endeavours to persuade either a jury, even though unpacked, or his fellow-judges, to decide—either for the king or for the defendant, whichsoever happened for the moment to find most favour in his sight—could experience any difficulty: and as for this our reforming sheriff, supposing him, in pursuance of this learned advice, to have become such defendant, what sort of favour he could reasonably expect at the hands of the learned judge who, in that case, would have the trying of him, may be left for him to imagine from the excursion which, in the case of Carr against Hood, was made not long after [Editor: illegible word] that same learned judge: viz. if not for the [Editor: illegible word] [Editor: illegible word] effect of giving him a sample of it in the character of a witness: always remembering that [Editor: illegible word] such purification, if performed with any degree of consistency and steadiness, the effect would be, as in his instance it had been the declared object, to make things better than well; and in so doing, to destroy not only the works, but the very principle, of that elegant art—that branch of the art of design—which exercises itself in the grouping of jurors:—an art, the planting and cultivation of which has already been affording so much occupation to the wisdom of ages.

The case is—that the statute in question, having, like most other statutes, been penned as above, for the express purpose of being misconceived, has, in pursuance of that purpose, been put into such a form and method, that both the learned adviser, and his official client and corrector, found it more easy and pleasant to speak from imagination than from the act.

It was the imagination of the learned adviser that presented him with the idea of its “being wholly within the power of the sheriff “to correct the list” in question, by “expunging names” out of it. It was the imagination of the sheriff that presented him with the idea, that “to make any alteration in the returns” is not merely “forbidden,” but “forbidden under a ‘penalty,’ and that a heavy one.”

As to the omission—and let us add, the expunction—of names, of the description in question; forbidden it may indeed be said to be, though in the rather indirect way we have just been seeing, viz. by requiring that the names of the persons contained in such duplicates be faithfully entered: but, to the offence of which this indirect description is given, no penalty is attached.

In the next section, it is true, viz. § 3, comes a clause, by which a penalty is appointed. But the offence to which this penalty is attached is—not that which consists in the leaving out of a list of the sort in question a name which ought to be in it, but the putting into it, or at least acting as if there had been put into it, a name which ought not to have been in it.

Then, as to the “heaviness” of the penalty, if the real and effective weight be here in question, viz. the weight of it as estimated by the quantity of money which the levying of it takes out of a man’s pocket—if this be what our sheriff had in view, very inadequate was (speaking with respect) the conception entertained by him, for the moment at least, of the real and effective weight of statute penalties. Of the penalty here in question, the minimum is no more than forty shillings, and the maximum but £10. But even this £10, if £10 it be, is not to be levied but “upon examination in a summary way” (§ 3,) in the manner herein intimated: in which case, at the expense of £10 at the utmost, he would have it in his power to exonerate himself of any further demand on this score: whereas had the penalty been no more than Is., to which in this case, he would hardly have given the denomination of a “heavy” one—this single shilling being to have been recovered in a regular way, I for my part would not be the man to save him harmless for ten times the maximum of £10—no, nor for a good deal more.

† What will be amusing enough—and (to any man in whose bosom the interests of mankind are wont to excite any warmer sympathy than the interest of Judge and Co.) consolatory, is—to observe the two traps set for the unlearned man, one by each of these his two learned advisers, and his unlearned good sense saving him from both.

To make “application to the court,” viz. in the only proper manner (learned gentlemen fee’d and so forth) but without any ground for it, is the learned advice given from the Temple.

To get himself indicted or informed against before Lord Ellenborough—(mark well, before Lord Ellenborough)—indicted for an attempt to commit a reform, viz. by cutting up the most valuable branch of the packing trade—indicted, and this with at least a plausible ground, say rather a good ground to build a conviction upon.

After all this learned advice, including the preeminently learned hint not to risk his reputation for “discretion,” by any such attempt as that of “making us better than well,” the unlearned person took a course which assuredly would not have been advised by any of the three, and laid bare the whole matter to the public eye.

And here we see matter not only of satisfaction, in respect of the escape made by the bird from the snares set for him by both fowlers, but of gratitude for the instructive song in which he has sung of it.

[a ]1. For the King’s Bench, civil office, see Tidd and Crompton by Sellon.2. For the King’s Bench, crown office, see Hands.3. For the Common Pleas, master packers, the two prothonotaries.4. For the Exchequer, plea office, master packer, the clerk of the pleas—see Edmunds.5. For the Exchequer, remembrancer’s office, master packer, the deputy remembrancer, there is no book of practice as yet extant: but that in the respect in question, the practice of this office agrees with that of the four other offices, may be well inferred by analogy, and is in substance affirmed, as will presently appear by the learned gentleman who dates from Lincoln’s Inn.

[a ]“Rex v. Hart, Esq. Cowp. 412. Friday, Feb. 9, 1776.“Mr. Davenport moved for directions to the master to strike out twenty-four of the special jury ex parte, in case the defendant and his agent should omit to attend the master’s appointment. The motion was founded on an affidavit of three appointments having been made, and their declining to strike out till a day should be appointed for the trial. . . .“Lord Mansfield was clear the master might do it without any direction from the court; and declined giving him any in particular, but had no doubt he might do it now just as if he had proceeded last term; . . . .”

[† ]“Power of the sheriff.”] Note of Sir Richard Phillips to these words:—“This is not in the power of the sheriff, who is forbidden to make any alteration in the returns, under a heavy penalty. “R. P.”