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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 III.

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

§ 1.

Substance of the Letter.

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

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

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

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

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

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

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

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

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

§ 2.

The Letter in its own words.

“TO SIR RICHARD PHILLIPS.

“Old Balley, April 9th, 1808.

“Sir,—

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

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

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

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

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

“A. Macdonald.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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