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CHAPTER IV.: OBSERVATIONS ON THE LORD CHIEF BARON’S 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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OBSERVATIONS ON THE LORD CHIEF BARON’S DEFENCES.
Insufficiency of the Defences in any case.
Come we now to the consideration of the two inconveniences, the pressure of which on his lordship’s mind became so irresistible, as to force him at once upon two measures of such extremity as the violating an acknowledged fundamental principle of the constitution, and travelling on for years in a course of persevering and open-eyed disobedience, in the teeth of the authority of the legislature.
Not that, had the advantages professed to be expected from this transgression been ever so many times as great as even by himself they could have been supposed to be, they could ever have amounted to so much as the shadow of a defence. On every imaginable supposition, the operation thus performed by the subordinate, by the judicial authority, is indefensible. The change thus effected, would it, if proposed to parliament, have been approved and carried into effect by parliament?—attempting it by judicial authority was needless:—would it have been disapproved?—attempting it by judicial authority was not fitting.
Instead of that of George the Third, had the reign been such an one as that of Elizabeth, in which the intention of sparing the subject as much as possible—perhaps for ever—the trouble of paying their homage at the foot of the parliamentary throne, was declared—declared, from the throne itself, and merit grounded on it—at such a period—such usurpation might, in such supposed advantages, have found an excuse. But now—in the 19th century—when the return of the sessions is become no less regular than that of the seasons—is this a time when the plea of necessity can form so much as a veil—any even the slightest veil—for such usurpation?
Yet, though the work be but supererogation—and the words bestowed upon it little better than surplusage—let us take up the arguments one after another, and look a little into their texture. Let us see whether, when put together, there be in them indication of any such mass of substantial inconvenience, as could have served for a ground, even for so much as a constitutional and regular recourse to parliament for the removal of it.
Defence 1—Avoidance of Vexation
“Brought fifteen miles from their homes!” Alas! poor “gentlemen!” Brought fifteen miles, each of them for no more than a few guineas—possibly even for no more than one—to a place to which everybody comes, and to which, but for the summons and the guineas, without any guineas received, and at the expense of guineas paid, they would otherwise have come!
Oh! what a charming thing it is to be a gentleman! If, on the bed of roses you repose upon, there be but a single leaf that has a pucker in it, how tender the sympathy excited in reverend and learned breasts!
Fifteen miles from the metropolis!—and in the whole of this almost smallest and most compact of English counties, exists there really any one spot banished to so tremendous and toilsome a distance?
What if it had been in one of the large or straggling counties?—in Yorkshire, in Lincolnshire, in Devonshire, in Sussex, for example? In any of those instances, how many more miles would the maximum have swollen to? But the imagination is appalled, and shrinks from the research.
Turn now to common jurymen—for the definitive trial of causes the only sort of jurymen which till t’other day the constitution knew of. Place them in one of the large or straggling counties, and fetch them to court, each for his eight-pence.
Aye, but these are low people—people who cannot say their catechism—their Perceval catechism—(See Part I. Ch. XI. § 2)—people of no “family”—people (as we shall learn from the observations of the learned Templar, whose “observations are so perfectly just”)—people whose time, if it be not absolutely worth nothing, is at any rate, in the estimate of Exchequer justice—or say at once of Westminster-hall justice—not worthy of a thought—people who except for the purpose of thus serving in it without recompence, are thrust forth in a lump out of the temple of justice into the pit of outlaury, lest the fund of rewards provided for learned merit should fail of being adequate to that exclusively important service.
As to the principles, the true legal principles, on which the value of time ought to be computed, this topic will meet us in the next chapter.
Defence 2—Benefit of Instruction.
Direction to Judges, Advocates, Politicians, and other Debaters; showing a safe method of defending the wrong side of any question, especially where you have the advantage of situation on your side.
Where the nature of the case is such as to afford you, for the purpose of your argument, no fact, but what, if relevant and particular enough, would not only be false, but too plainly so not to be seen to be so, mount up into the region of generalities, till you come to some proposition, which, being by reason of its generality neither true nor false, is by that means saved from the inconvenience of being proved to be false. By this means, should you fail of convincing men, those excepted who find their convenience in being convinced, at any rate (what is no small point gained) you secure yourself against being confuted. And among men of modesty and diffidence, those who cannot exactly find out what your meaning is (at any rate, if your “situation” be a “high” one, and they scholars bred up in Blackstone’s school,) will, if they do not plainly see your meaning to be false, give you credit for its being a good and true one.
Whether a rule to this effect was ever laid down in words, is more than my slender stock of learning will enable me to pronounce:—that it has been acted upon, and that right frequently, may be asserted with less diffidence. Witness ourselves at Westminster, et cætera, and so forth:—at Westminster, in all our courts, and moreover in both our houses.
“Experience . . . . far from detrimental” . . . . . Instruction needful to human ignorance—two lessons better than one—three better than two, where two have proved insufficient—against maxims such as these, where is the caviller so perverse as to pretend to have found anything to object? Proof against all disproof, what, at the same time, does all this prove? Among those “many species of manufactures,” had but a single one obtained a mention, here it is that, if in the general proposition, thus cut down to a particular one, a speck of error had found itself included, the finger of detection might have been laid upon it:—meantime, in default of stronger handles, let us look out for something that for the moment may be taken hold of, though it be but of straw or cobweb.
But before we proceed to observe upon it, let us, by way of necessary preliminary, begin with the endeavour to interpret it, or, as they say in Westminster-school, and in Westminster-hall, to construe it—or, in plain English, to find out the meaning of it, or, when the worst comes to the worst, a meaning for it.
“Instructing jury after jury . . . . exposes” (says his Lordship) “parties to a hazard.” . . . . . Not that from this we ought to conclude that, taken in the abstract, instruction is a bad thing:—bad, either for those to whom it is not, or those to whom it is, communicated.
No, nor yet that, in taking for the subject of instruction “many species of manufactures,” there is more of hazard than there would be in confining the instruction to some of them, and leaving the rest to go without it . . . . But . . . .
But—lest to construction, carried on upon this plan, there should peradventure be no end, let us lay aside construction, and take up paraphrasis, or, as we say in English, paraphrase, instead of it.
Many are the species of manufactures, in the instance of each of which, in respect of this or that part of the whole assemblage of instruments and operations, which, on the occasion of a revenue cause in the Exchequer, is liable to come in question, the demand for instruction and explanation is so considerable, that the utmost quantity of instruction that will, generally speaking, have been afforded on the occasion, and brought within the compass, of a single cause, will not have been sufficient to satisfy it: so that, should the same part of the process be brought a second time under the notice and cognizance of one and the same juryman, the probability is, that with the help of the additional instruction which on this second occasion he will receive, the conception which he will have obtained of the matter at this second trial, will be more accurate and complete, than the conception he obtained at the first trial, whereby, in so far as depends upon him, the chance in favour of a right verdict will receive a proportionable increase.
Mischievous Doctrines involved in this Defence.
Meantime, if this, or any thing like it, be the argument of this pre-eminently learned judge, let us observe now where it leads. We shall find involved in it the following doctrines:—
1. That, in respect of causes of the particular description in question, jury-trial, in the ordinary mode, is not a fit mode of trial: at any rate, not so fit as the new mode which he has contrived to substitute to it.
2. That for these causes, the more proper, if not the only proper species of judicatory, is that which is composed of a board or bench (call it which you please) of permanent judges: for example, such as the board of excise, which already to a considerable extent has jurisdiction in these same matters: the principal difference being, that in this special-jury board there is an over-number of judges, to make a kind of rotation: which species of judicatory, preserving to it still the name of judge and jury, with the forms of jury-trial, he has substituted accordingly.
3. That, the mode employed by him being such as renders this secretly formed board of completely dependent judges, under the disguise of jurymen, applicable with equal facility, and in practice, as there is reason to think, (Suprà, Part I. Ch. VIII.) actually applied, at the pleasure of dependent servants of the crown, to crown causes in general (capital, and next to capital, excepted,) and, in particular, to crown libel law causes, the superiority of advantage attached to this sham jury-trial, as compared with the genuine mode, is such as warrants the departure made to so great an extent from the acknowledged principles of the English constitution.
4. That this superiority is even such as not only would warrant the legislature in making the change, but actually has afforded to a judge, viz. to himself, a sufficient warrant for making it of his own authority, and without warrant from the legislature.
Acknowledged Nothingness of the Advantage.
Such being the price paid, at the expense of the constitution, by this our learned improver, for the sort of improvement introduced by him, with such advantages as may be found belonging to it, a question to which the mind of the inquirer is naturally and unvoidably turned is—what may be the amount of this advantage, according to the estimate formed of it by the learned improver himself: this being the advantage for the sake of which he has been content to give birth to all those other results, the complexion of which is, to ordinary eyes, so far from being advantageous?—and, for answer to this question, what we find, certified to us by his own words, is, that, in his own estimation, this advantage amounts either to nothing at all, or to something between nothing and next to nothing. It amounts not so much as to the absence—total absence—of all “detriment” or inconvenience: it amounts to no more than the absence of “detriment” in one particular shape; viz. in the shape of “experience.” “Some experience,” says he, “in serving upon exchequer special juries is far from being detrimental to the public or defendants”. . . . whereupon immediately come those clouds, in which we have seen this pre-eminently learned person losing himself, when he goes on to speak of the “hazard” to which “both parties” are “exposed” by “the instructing jury after jury.”
While puzzling myself with this glimpse of an advantage, being curious to discover, if possible, what might be the amount and value of it in the eyes of the learned improver himself—and, instead of recurring at once to his own estimate, as above, having fallen unawares into the error of endeavouring to determine it, from the price I saw he was so well content to pay for it, I had strayed insensibly into the inquiry, what might be the real amount of it; and in this view, at the cost of some days of labour, I had actually pursued to no inconsiderable length the analysis of it. But upon turning once more to his own words, and finding that it was not easy for any person whatever to sct this supposed advantage at any lower rate than it had been set at by the learned improver himself, I saw at length, and not altogether without regret at the thoughts of the time thus wasted, that I had been all this while combating without an antagonist.
I therefore spare the reader, for the present at least, the labour of following or attempting to follow me, through a sort of analysis so dry and intricate as to involve, in the way of indication at least, a mass of mathematical calculation. But should it ever happen to his Lordship, or to any avowed advocate of his Lordship, at any such bar as that of the House of Lords, or even that of the public, to draw into question by any arguments the propriety of this his estimate, I mean in so far as it sets down this so dear bought advantage as amounting to next to nothing, I am ready to produce this my analysis, and, upon the supposition in question, to defend, against these his Lordship’s first thoughts, any second thoughts, either on the part of his Lordship, or on the part of any other such less dignified defenders and gainsayers.
Short Exposure of the supposed Advantage.
Meantime, in demonstration of this nothingness, one argument (it being a short one, and not involving any inquiries of detail) shall not be consigned to oblivion with the rest.
On the part, and in the person of, and from the “instruction” that would be afforded by, this our pre-eminently learned judge, a jury of the old school, were it permitted to “serve,” would have the benefit, not merely of “some experience,” but of consummate experience. Now then, after the benefit of such instruction, though received in the course of no more than one single cause, to wit, the cause for the trial of which such jury had been summoned, and was sitting, what would be the utmost advantage derivable to any practical purpose, from any other, to wit, any antecedent lecture or course of instruction, that could, even from the same pre-eminently learned lecturer, have been received? Nothing; no, nothing at all; is the answer I return with the utmost confidence. Where “the points” were such, as to be either plain enough in themselves, or made so by the one only lecture which, till this our pre-eminently learned lecturer set up, was ever designed by the constitution for an English jury, his Lordship would accordingly leave the decision to the opinion of these plain men. When these same “points” had any such intricacy in them, as entitled these plain men to the benefit of an opinion, formed and ready made for them by this at present consummately experienced, and from the first most incontestably competent judge, he would not refuse it to them. This incontestably competent opinion, would it find them disposed to acquiescence? Acquiescence would take place accordingly; and (in the Blackstone’s phrase) “everything would be as it should be.” Would it find them disposed to refractoriness? It is not by any antecedent experience that they could have been cured of so troublesome a vice.
But (says some one, with the proper expressions of regret) the country (alas!) cannot always enjoy the blessing it possesses at present, in the services of this our veteran and consummately experienced judge: that blessing withdrawn, comes some other Lord Chief Baron, who, though the adequacy of his general legal learning will be sufficiently proved by his situation, will not, with reference to causes of the class in question, be, at the commencement of his first cause, altogether so completely endowed in the article of experience. Here, then, upon his Lordship’s improved plan, comes the benefit of an experienced, and thence of a permanent jury:—while the judge is learning to walk, the jury will be able to go alone. But, upon the old plan, what experience would there be?—When the blind have no leader but the blind, the consequence is such as need not be mentioned.
I answer—were the argument, which has been shown to be worth nothing, worth ever so much, it could not to this purpose be of any use. At a much cheaper rate than the violating of a vital principle of the constitution, an adequate allotment of appropriate experience might, at all times, be seated upon the bench. “Set a thief to catch a thief,” is a coarse proverb, but, on the present occasion, not an uninstructive one. In that division of the court of Exchequer (not to speak of the great law-officers, who might not always regard a presidentship, which has so recently cried date obolum, worth the honour of their acceptance,) there will be always some one learned gentleman at least, by whom, in the character of licensed accessary after the fact, or, in two words, standing counsel to the fraternity of smugglers, an ample stock of experience—appropriate experience—cannot but have been laid in.
But (replies the learned gentleman on the other side) any rule to this effect would be an infringement upon the liberty of the prerogative: that liberty being proportionably trenched upon by every rule, the tendency of which is to secure the appointment of fitter functionaries in preference to less fit ones. It would accordingly be injured, if, in his choice of judges, it were rendered more difficult to his Majesty than it has been, to provide for the accommodation of the family connexions of persons in “high situations.”
Prerogative (I answer) is an argument, which is (I must confess) understood never to admit of any direct contestation. But, in the Westminster-hall benches, besides ten subordinate seats, there are four chief or principal ones: and the prerogative, it is humbly submitted, would not sustain much injury, if, for the superior purpose of private accommodation, it were to apply itself to some one of the many other seats in which no such imperious demand for experience—appropriate chemico-mechanico-commercial experience—as that of which, by the unprecedented sagacity of the present Lord Chief Baron, the discovery has so recently been made.
Mischievousness of the Doctrine further developed.
But the material thing is, that, if his Lordship’s sentiments have not been strangely misinterpreted by his words, it is not merely in Exchequer causes, viz. Exchequer revenue causes, that, in his conception of the matter, the substitution of a permanent and dependent board, under the name of a jury, to the jury of the old school, ought to be applied; but in all causes to which that antiquated species of jury has ever been applied: in all such causes, without exception, but more particularly in libel causes. For, such is the nature of the reason thus held up by him to view, that to the application of it any narrower extent cannot surely be assigned. This reason consists of the ignorance under which each member of a jury cannot but be supposed to labour, the first time, at least, of his serving in that character: of which ignorance, in his Lordship’s view of the matter, the influence—the morbid and debilitative influence—is such, that nothing less than permanence can afford an adequate cure for it.
The “points” which he speaks of as being the subjects of this ignorance—of this ignorance to which there exists no remedy but in that “experience” which supposes permanence—the actually existing and thus defended permanence—are, not only points relating to the conduct of manufactures, “many species of manufactures,” but points relating to “the laws on that subject,” meaning on the subject of these same mannfactures.
Unfortunately, in comparison of what is to be found in the great body of the laws, the utmost difficulty of comprehension, and consequently of demand for instruction—for experience in receiving instruction, and consequently again for permanence of situation, the utmost demand created by those particular laws, which have for their subject “the conduct of manufactures,” is as nothing. In the instance of every part of the rule of action, which has any species of manufacture for its subject, that rule is in the shape of statute law—a shape in which it is provided with a determinate set of words for the expression of it. But, in the case of the great body of the law, remaining as it does in the shape, or rather in the shapeless state, of common, alias unwritten, law, there exists no such determinate set of words. In all this vast extent, the two sources of difficulty, and with it of demand for “experience” and permanence—viz. law and manufacture—are combined in one. Judges, the master manufacturers: law, or, what to every purpose—of suffering at least, if not of instruction or relief,—has the force of law, law itself the product of the manufacture.
In the case of every other species of manufacture—of every species of manufacture commonly known by that name, the master manufacturer viewing, in every misconception that may take place, a source of loss to himself, and having to deal with simple and uncultivated minds in the character of labourers, has for one of his objects, and that a constant one, the rendering the conception of the operations to be performed, and the instruments to be employed, in his manufacture, as correct and complete as possible, and employs his endeavours accordingly.
In the case of the manufacturers of judgemade law, interest being directly opposite, endeavours have of course been correspondently opposite, and results equally so.
Whatsoever may have been the course of endeavour—whether with or against the stream of interest—the result is, at any rate, equally and indisputably notorious. The demand for instruction, and consequently for “experience,” and consequently for permanence, being then so much greater in the cases in which his Lordship was not led to bring it to view, than in the cases in which he was led to bring it to view, and has brought it to view accordingly, this demand covering the whole field of law in general, and that of libel law in particular, what his Lordship’s opinions and wishes are and have been—what his Lordship’s endeavours, on all favourable occasions, may with justice be inferred and presumed to have been, and to be about to be—need not surely be particularized.
“This reason of yours—viz. the demand for experience—will you abide by it, or desert it? Desert it, there is an end of the matter, and your conduct remains without excuse. If you abide by it, will you abide by it wherever it applies with equal force? If no, there again you desert it:—if yes, you then mean to carry it, upon occasion, over the whole field of special-jury trial, and, in particular, over that part which regards libel law. Meaning to carry it over the whole of that field of jury-trial, and, in particular, over that part which regards libel law, in packing into a standing board a set of dependent commissioners, habited like jurymen, for service in your own court, that is, for Exchequer service, it has then been your meaning to enlist and discipline them for King’s Bench service.”
Such, in conclusion, are the questions and observations that might be addressed to the pre-eminently learned author of this defence, and, as it should seem, not altogether without some prospect of effect, if the forms of the constitution were anything better than a cloak for despotism, and if responsibility were, in fact, among the attributes of an English judge.
Lawful Improvement—Track it would have proceeded in.
Now, suppose again, for argument sake, it had pleased this pre-eminently learned judge to “think it worth while” to allow to King, Lords, and Commons respectively, their several votes in relation to this business; more particularly to the Commons, whose attention is, or used to be, considered as, in a more particular degree, bespoken for regulations affecting the revenue.
In the House of Commons, besides the committees of the whole house, there would probably have been appointed some select committee for the purpose. Thus appointed, the committee would have set itself to work, and begun with analyzing the general conception thus formed by the ingenuity of the learned judge:—decomposing it, they would have resolved it into such particulars as may be found involved in it:—particulars, the number of which is determined by that of the several “manufactures, the practice of which has, under favour of that permanence which forms so really useful an attribute of the judicial seats, been brought under the dominion of his Lordship’s science. The analysis thus performed, they would, in the instance of each such manufacture, have proceeded to inquire into the truth and accuracy of that general conception, and into the degree of force with which, in each instance, the argument deduced from it, in defence of a select and permanent board, in preference to a fortuitously determined and ever-changing jury, may be found applicable.
Supposing that in each one, or in this or that part of the whole number of these manufactures, the quantity of instruction necessary to the giving the requisite assurance of a right verdict, had respectively appeared so great, that the quantity of time, capable of being allotted to one trial by jury, could not with propriety be considered as sufficient for imbibing it, then, and not till then, would it remain for the consideration of the committee, whether, for the obtainment of whatsoever increased probability of correct judicature appeared capable of being obtained by the proposed substitution, it would really be worth while that an innovation applying to so important a part of the constitution should be introduced.
Supposing this question determined in the affirmative, then would come upon the carpet, for the consideration of the committee, the question concerning the organization of the permanent board or bench of judges, by which alone, in the sorts of causes in question, correct justice is, by the supposition, capable of being administered.
Satisfied, let us even suppose then, that, by a jury, justice in this behalf was incapable of being done, would any such determination be formed by them—would any such idea be so much as proposed to them, as that of giving the name of a jury to a body of men in which it had been predetermined that none of the properties of a jury should be found? Would they—these representatives of the people—bring themselves to attempt putting any such imposition upon their constituents? I hope, and dare believe, they would not. Deceit like this belongs to none but a class of men trained up in the application and formation of that art and science which is from beginning to end the art and science of imposture.
Such as above, or something like it, is the course taken by King, Lords, and Commons, when to them it seems good to take upon them to make laws; to make laws, taking, as they must be content to do, their chance for seeing, or, if it be more convenient to them, for avoiding to see, those laws overruled:—overruled, indeed, but happily always by men of transcendent science, by whom, without the trouble of studying it, the business of legislation is so much better understood.
But King, Lords, and Commons, are a dull and slow-paced set;—determining nothing about facts, till after they have been poring over, as well as prying into, facts. How much more easily are these things managed by a learned judge! When, at any time, he “thinks it worth while” to make a law, it need cost him but a word: nor be it necessary even to that word to contain thought, or any such heavy matter, at the bottom of it.
Another thing might, in this case, be affirmed with some assurance: viz. that were parliament, at this time of day, to think fit to appoint for this (not to speak of any other) purpose, instead of a jury, a permanent board,—in that case, into the organization of any such board, no such barbarous and flagitious feature would now be introduced, as should put it into the power of any one dishonest member to overrule, by his own single will, the opinion, and consequent will, of eleven honest ones.
Parliament would, in this case, do in this particular, as it did in the case of the judicatory established by the Grenville act: which judicatory cannot be defensible, but upon the supposition that what, in the case of jury-trial, is called unanimity, is indefensible.