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PART II.: STATE OF THE PACKING SYSTEM, ANNO 1808. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 5.
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STATE OF THE PACKING SYSTEM, ANNO 1808.
INTRODUCTION—TWO REFORMING SHRIEVALTIES.
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.
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.
THE SHERIFF TO THE LORD CHIEF BARON—NOTICES.
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.
The Letter in its own words—with Observations.
Here follows the letter in its own words. Phillips, p. 166.
“TO THE LORD CHIEF BARON.
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.
Bridge Street, April 4, 1808.
LORD CHIEF BARON TO SHERIFF SIR RICHARD PHILLIPS—AVOWRIES AND DEFENCES.
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.
The Letter in its own words.
“Old Balley, April 9th, 1808.
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,
OBSERVATIONS ON THE LORD CHIEF BARON’S DEFENCES.
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.
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.
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.
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.
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.
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.
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.
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.
SPECIAL JURY CORRUPTION—DEVICES BY WHICH IT WAS PROTECTED.
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.
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.”
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.
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.
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.*
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.”*
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.
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.
ADVICE FROM LINCOLN’S-INN.
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.
The Letter, with Annotations.
Lincoln’s-Inn, Sept. 1, 1808.
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.†
MAXIMS CONCERNING REFORM, DEDUCED FROM THE ABOVE LETTER.
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.”
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.
TRANSACTIONS AT THE REMEMBRANCER’S.
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.
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.
[* ]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.
[† ]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:—
[* ]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.
[* ]“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.
[* ]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.
[∥ ]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:—
[* ]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.
[† ]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.
[* ]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?
[† ]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.
[* ]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:—
Thus done into English by T. Sternhold and J. Hopkins:—
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.
[* ]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.
[* ]“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!
[* ]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.
[‡ ]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.
[* ]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.
[‡ ]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.
[¶ ]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.
[‡ ]“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.
[* ]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.
[† ]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.
[∥ ]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.
[* ]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?
[† ]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.
[∥ ]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.
[* ]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!
[† ]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 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.
[* ]“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:—
[* ]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.
[* ]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?
[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.”