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• Scotch Reform; Considered With Reference to the Plan Proposed In the Late Parliament, For the Regulation of the Courts and the Administration of Justice In Scotland: With Illustrations From English Non-reform: In the Course of Which, Divers Imperfectio
• Advertisement.
• Letters to Lord Grenville, On the Proposed Reform In the Administration of Civil Justice In Scotland.
• Letter I.
• Letter II.: Proposed Division of the Court of Session.
• Letter III.: Proposed System of Pleading.
• Letter IV.: Proposed Trial By Jury.
• Letter V.: On the Bill Called Lord Eldon’s.
• Summary View of the Plan of a Judicatory, Under the Name of the Court of Lords’ Delegates, Proposed For the Exercise of Those Judicial Functions, the Adequate Discharge of Which By the Whole House Has, For These Six Or Seven Years, Been Rendered Confe
• The Elements of the Art of Packing, As Applied to Special Juries, Particularly In Cases of Libel Law.
• Advertisement to the First Edition.
• Part I.
• Chapter I.: Occasion of This Work.
• Chapter II.: Juries—their Use As a Check to Judges.
• Chapter III.: The Check How Done Away By Influence.
• Chapter IV.: Special Juries, a Special Engine of Corruption.
• Chapter V.: Jury Unanimity Increases the Corruption.
• Chapter VI.: Purposes to Which Influence On Juries May Be Made Subservient.
• Chapter VII.: Chief Purpose, Crushing the Liberty of the Press.
• Chapter VIII.: The Exchequer Packing Office Suffices.
• Chapter IX.: Instruments For Crushing the Liberty of the Press.
• Chapter X.: Want of Adequate Obsequiousness Morally Impossible.
• Chapter XI.: Such Juries Worse Than None.
• Part II.: State of the Packing System, Anno 1808.
• Chapter I.: Introduction—two Reforming Shrievalties.
• Chapter II.: The Sheriff to the Lord Chief Baron—notices.
• Chapter III.: Lord Chief Baron to Sheriff Sir Richard Phillips—avowries and Defences.
• Chapter IV.: Observations On the Lord Chief Baron’s Defences.
• Chapter V.: Special Jury Corruption—devices By Which It Was Protected.
• Chapter VI.: Learned Advice From the Temple.
• Chapter VII.: Advice From Lincoln’s-inn.
• Chapter VIII.: Maxims Concerning Reform, Deduced From the Above Letter.
• Chapter IX.: Transactions At the Remembrancer’s.
• Part III.: State of the Packing System, Anno 1809.
• Chapter I.: Commons’ Debate, 24 Th April 1809. Packing and Cutting.
• Chapter II.: Double-fee Abuse, Plain and Embroidered.
• Part IV.—: Remedies Proposed. *
• Chapter I.: Humble Proposal For Restoring the Constitution In Regard to Juries.
• Chapter II.: State of Jury Package In Scotland.
• Chapter III.: Humble Proposal For Restoring the Authority of Parliament.
• “swear Not At All:” Containing an Exposure of the Needlessness and Mischievousness, As Well As Anti-christianity of the Ceremony of an Oath: a View of the Parliamentary Recognition of Its Needlessness, Implied In the Practice of Both Houses; a
• Advertisement.
• Editor’s Note
• Swear Not At All. Mat. V. 34.
• Section 1.: Oath. Incongruity of the Assumption, On Which Its Supposed Beneficial Efficiency Is Grounded.
• Section 2.: Mischievousness of This Instrument Considered In a General Point of View.
• Section 3.: Its Inefficiency In the Character of a Security Against Deceptious Incorrectness and Incompleteness In Evidence.
• Section 4.: Recognition of Its Inutility By Lords and Commons.
• Section 5.: Mischiefs —1. Contributing to the Mendacity-licence Granted By Judges.
• Section 6.: Mischief 2— Weakening In Various Ways the Efficiency of the Laws.
• Section 7.: Mischief 3— Bewildering and Enslaving the Consciences of Jurymen.
• Section 8.: Mischief 4— Giving Aid and Force to the Enterprises of Malefactors.
• Section 9.: Mischief 5— Furnishing Pretence For Misrule By Abuse of Prerogative.
• Section 10.: Misrule, How to Perpetuate—coronation Oaths Amended.
• Section 11.: Mischief 6— Corrupting the National Morals and Understanding—oxford University Oaths.
• Section 12.: Mischief 6 Continued. —ii. Cambridge Oaths.
• Section 13.: Practice of Receiving Judicial Oaths, Its Repugnancy to the Precepts of Jesus.
• Section 14.: Succedanea—true Securities Substitutible to This False One.
• Section 15.: Cause and Origin of the Practice In Regard to Oaths.
• Appendix.
• Truth Versus Ashhurst; Or, Law As It Is, Contrasted With What It Is Said to Be.
• The King Against Edmonds and Others: Set Down For Trial, At Warwick, On the 29 Th of March 1820.
• The King Against Sir Charles Wolseley, Baronet, and Joseph Harrison, Schoolmaster, Set Down For Trial, At Chester, On the 4 Th of April 1820.
• Official Aptitude Maximized; Expense Minimized: As Shown In the Several Papers Comprised In This Volume.
• Paper I.—
• Paper II.—: Introductory View, &c.
• Paper III.—: Extract From the Proposed Constitutional Code; Entitled, Official Aptitude Maximized—expense Minimized. By Jeremy Bentham, Esq. Bencher of Lincoln’s Inn.
• Paper IV.—: Supplement to the Above Extract.
• Paper V.—: Defence of Economy Against the Right Honourable Edmund Burke.
• Paper VI.—: Defence of Economy Against the Right Honourable George Rose.
• Paper VII.: Observations On Mr. Secretary Peel’s House of Commons Speech, 21 St March 1825, Introducing His Police Magistrates’ Salary Raising Bill, ( Date of Order For Printing, 24 Th March 1825.)
• Paper VIII.: Indications Respecting Lord Eldon, Including History of the Pending Judges’-salary-raising Measure.
• Paper IX.—: On the Militia.
• Paper X.: On Public Account Keeping.
• Paper XI.: Constitutional Code—table of Contents As Shown By Titles of Chapter and Sections.
• Commentary On Mr. Humphreys’ Real Property Code, By Jeremy Bentham. From the Westminster Review, No. XII., For October 1826.
• *∗* the Following Note Was Prefixed to the Article By the Editor of the Westminster Review: —
• Commentary On Humphreys’ Real Property Code.
• I.: Deed of Sale.
• II.: Deed of Mortgage. 1
• III.: Marriage Settlement Deed.
• Outline of a Plan of a General Register of Real Property: Contained In a Communication to the Commissioners Appointed Under Letters Patent, of Date the 6 Th June 1828, to Inquire Into the Law of England Respecting Real Property, and First Printed I
• Justice and Codification Petitions: Being Forms Proposed For Signature By All Persons Whose Desire It Is to See Justice No Longer Sold, Delayed, Or Denied: and to Obtain a Possibility of That Knowledge of the Law, In Proportion to the Want of Which T
• Justice and Codification Petitions.
• Advertisement.
• Preliminary Explanations Necessary to Be First Read.
• Petition For Justice.
• Abridged Petition For Justice.
• More Abridged Petition For Justice.
• Supplement, Which May Be Added Or Not to Any One of the Three Or Any Other Proposed Petition.
• Petition For Codification.
• Lord Brougham Displayed: Including I. Boa Constrictor, Alias Helluo Curiarum; II. Observations On the Bankruptcy Court Bill, Now Ripened Into an Act; III. Extracts From Proposed Constitutional Code.

CHAPTER II.

THE SHERIFF TO THE LORD CHIEF BARON—NOTICES.

§ 1.

Substance of the Letter.

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

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

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

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

4. That the permanence has packing for its cause.

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

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

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

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

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

§ 2.

The Letter in its own words—with Observations.

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

“TO THE LORD CHIEF BARON.

“My Lord,—

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

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

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

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

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

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

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

“R. Phillips.”

Bridge Street, April 4, 1808.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[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.