Front Page Titles (by Subject) CHAPTER III.: LORD CHIEF BARON TO SHERIFF SIR RICHARD PHILLIPS—AVOWRIES AND DEFENCES. - The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)
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CHAPTER III.: LORD CHIEF BARON TO SHERIFF SIR RICHARD PHILLIPS—AVOWRIES AND DEFENCES. - 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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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,
[* ]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.