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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 V.

SPECIAL JURY CORRUPTION—DEVICES BY WHICH IT WAS PROTECTED.

§ 1.

Device 1—Leaving to Judges a covert ground for refusing to apply the act.

We come now to account for the flaw, observable, though, by our triad of learned persons, not observed, in the reforming statute (3 Geo. II. c. 25)—I mean its inapplicability to the principal, the new-invented, and most conveniently-framed seat of corruption viz. the special sort of jury.

So far as concerned the trial of causes, the use, and the only use, of a jury was, as there has so often been occasion to observe, the operating as a check to arbitrary power in the hands of judges. This intended and supposed check, by the invention of the sort of jury called a special jury, and to the extent of the application capable of being made of it, they had already, and before the passing of this act, given to themselves the faculty of converting into an instrument: the determination of the individuals of whom, in the instance of this novel species of jury, the tribunal should, on each occasion, be composed, being taken by them out of the proper hands, and virtually into their own, viz. by being vested immediately in the hands of the permanent officer, whom, on that account, there has been such frequent occasion to designate by the appellation of master packer—their own dependent and subordinate.

Abuses respecting the appointment of jurors—of jurors of all descriptions, and for all occasions—corruptions too flagrant to be any longer endured in silence—having engaged at length the attention of the legislature, the necessity of doing something had, to the conviction of the learned fraternity, become inevitable.

In this emergency, it became their manifest interest, and consequently their care, so to order matters, that whatever it should be found necessary to do, or suffer to be done, for the prevention of abuse in the appointment of juries, should be confined to common juries, and should not, either by design or through inadvertence, be extended to those juries of their own nomination—viz. to special juries: but that, on the contrary, every pretext and every opportunity should be embraced, for giving, to the application of so convenient an instrument, every extension of which it might be found susceptible.

At the same time, this invention of their’s being incontestably repugnant to the universally-recognised principles of the constitution, it became a matter of prime importance, that, of whatsoever should be done for the extension or even for the preservation of it, the true nature and operation should be kept as effectually concealed and disguised as possible.

The remedy, therefore, whatsoever it might be, was to be made to possess two characters; viz. an ostensible one, and a secret one: in its ostensible character, it was to bear upon all juries without distinction: in its secret character, it was so to be contrived, that, if at any time any untoward accident should happen to call for its being carried into execution and effect, it should, in the case of a special jury, be found inapplicable: which sort of jury should consequently remain the seat of corruption and abuse in every convenient shape, notwithstanding any success which, in the instance of the ordinary and vulgar sort of jury, might have attended the measures taken for the extirpation of those mischiefs.

For this purpose various devices, part old part new, were set to work. An old established one was—the rule they had long before contrived to establish—viz. that the crown (i. e. as many members of government as could contrive to get their interests included under that name) was never to be considered as bound by any act of parliament, unless expressly mentioned in it, which of course all persons interested would, on each occasion, take care that, if possible, it should not be.

By this rule alone, a great part of the design was already accomplished to their hands; for, by this rule alone, special juries, with the benefit of an exemption from the obnoxious restrictions, which, under the proposed new law, operated as a bar to sinister choice and permanence, might have been preserved to all causes, in which, according to the established forms, the king was nominally a party.

But by this rule, if alone, the benefit of the exemption would not have been extended to all causes to which it should happen, to have been brought under the cognizance of special juries. Under this cognizance they had already, of their own authority, besides the above-mentioned criminal and other sorts of causes, brought in general all those which, in contradistinction to criminal, are termed by them civil causes, comprehending together almost all sorts of causes: and to this extension they had the assurance to ask, and the good fortune to obtain, the confirmation of the legislature, in and by this very act. (3 Geo. II. c. 25, § 15.)

To complete the imposition, it then became necessary to employ a further contrivance, for concealing from non-learned eyes the completeness of the exemption meant to be established.

The way in which they managed it is this:—In the case of a special jury, the jurors, instead of being determined as in the case of a common jury, were, as there has been such frequent occasion to observe—were, as they always had been—“nominated,” as the word is in the books of practice, by the officer of the court—the master. The master, then, for one at least, if not he alone, would have been the, or at least a, person, to whom, had the corrupt practice been in this case meant to be prevented, the prohibition would have been addressed.

But to apply to this branch of the corruption—to the branch which was under their own management—any sort of remedy, was no part of their intention. Care was accordingly taken, that, to the effect in question, neither to this officer, nor to any other officer, by the staying of whose hand that part of the plague which was of their own nursing would be staid or checked, should the prohibition in question, or any prohibition, be addressed.

In the case of a common jury, the sheriff, as above observed, was the person by whom, out of a much more numerous assemblage, supplied to him under legal rules, by other hands (in the first instance by the constable of the several townships) the choice was made. Corruption having risen to such a pitch, that the cries of the public had become troublesome, it was become necessary that the mischief should, in some quarter or other, receive a check.

Common juries were the sort of juries in whose instance, in comparison of special juries, the preservation of the faculty of corruption was, to the purposes of the judges, and the other lawyers, of least importance: the sheriff, in whose hands the choice of jurors of this class was more immediately reposed, was an officer, on whose obsequiousness, regard being had to his impermanence, and comparative independence, they could not place any such reliance as upon that of the master, their own permanent subordinate.

The sheriff, it was accordingly determined—the sheriff, and he alone—should be included in the prohibition: the master, it was determined, should not be included in it.

Such being the determination, what was the contrivance employed for carrying it into effect? It consisted in the employing of such words, and one word in particular, viz. the word return, as, while to an unlearned eye they would appear to bear, alike in every case, upon the officer, be he who he might, upon whom, on each occasion, the composition of the reduced occasional list (see above, Part I. Ch. IV. § 3,) and thence, as far as depended upon him, that of the actually serving list (See above, Part. I. Ch. IV. § 3) depended, would be in case of litigation, and in the meantime, by learned and interested eyes, would be seen to be, in respect of the technical signification attached to the word return, incapable of bearing, in the case of a special jury, upon any such person, or in effect upon any person, at all: and thus it was that, for want of a person on whom the words in question could be found to bear, the supposed remedy was, in that case, to be rendered altogether inapplicable and without effect.

Such accordingly will be found to be the virtue of that convenient and aptly chosen word—the word return. The sheriff was and is the person, by whom, in all cases, what is called the return was and is made:—the return, i. e. the list of the persons summoned, or at least therein said by him to have been summoned, to serve on the occasion in question as jurors: which list was and is, in all cases, to be given in to the officer of the court.

The difference, in this respect, between the two cases, was and is—that in the case of common jurors, the persons chosen for jurors, were and are, a number of persons greater than 24 (the number contained in the case of a special jury in the reduced occasional list:) and so much greater than 24 as to constitute an aggregate out of which, in the case of a common jury, the actually serving lists for any number of causes, tried, as belonging to the county or other district in question, on the same occasion (viz. at the same assizes, sittings, or sessions,) are to be taken: and these are, all of them, of the sheriff’s own choosing, as above: in the case of special jurors, they are chosen by the officer of the court—the master—the master packer, out of a list furnished to him by the sheriff, being the same “gross list” that the sheriff himself has to choose out of: and the master having pitched upon the 24, sends an order, called a writ of distringas, inclosing the list (called the pannel) to the sheriff, who has nothing to do but to summon the persons contained in that same list, and thereupon, in his answer, called his return, to declare and certify his having so done.

Let it not for a moment be supposed, that on this occasion, in framing for themselves this valve of safety, on the part of these scientific and ingenious operators any such cause as inadvertence had any share. Return is the word by which they found the choice designated when made by the sheriff:—nominate, when made by the master, the officer of the court. That the sheriff never is said to “nominate” jurymen—that the master never is said to “return” jurymen—these are matters, neither of which could, to these learned persons, or any one of them, applying their thoughts to the subject, for a special and to themselves highly important purpose, have for a moment been a secret. Had it made any part of their intention, that special jurymen (the rich and well-paid jurymen, to whom alone the exemption could have been of no use) should stand exempted from the over-frequent service, as well as common jurymen (the comparatively poor and unpaid jurymen, to whom alone the exemption could be of any use,) in this case, to the word designative of the act of the sheriff, by whom common jurymen are chosen, they would have added the word designative of the act of the master, by whom special jurymen are chosen:—to the word “return,” when employed for the description of the act meant in this case to be prohibited, they would have added the word “strike,” or the word “nominate.” But their design being the reverse of this, such accordingly was the language employed by them in the execution of it. To the “return”—the reiterated return—of jurors, in the case of over-served jurors, the prohibition they framed was accordingly confined: to the nomination—the reiterated nomination—of jurors in the same case, the prohibition was not extended.

To make it clear, upon occasion, that, in the provisions against package, permanence, and corruption, it could not have been the intention of this act to comprehend the case of special juries, another argument was provided.

When a prohibition is addressed to a man, care is usually taken, that, in some way or other, he should find a motive for conforming to it. The operation meant to be restricted being the act of the sheriff, and he the person to whom the prohibition is accordingly addressed, to constitute such motive, an eventual penalty, bearing upon the conduct of the sheriff, is appointed, and denounced accordingly in the act: to the master, of course, no such, nor any other eventual penalty, is denounced.

Now, from this omission, if the prohibition is understood to apply to the case of a special jury, results a sort of incongruity, by which the intention of the legislature, under the guidance of these learned persons, to exempt the master packer’s corps of dependent special jurors from being disbanded along with the common jury corps, is put still more effectually out of doubt. [Editor: illegible word] in the prohibition, with the annexed penalty, put upon the official act, of which the service of over-served juries—viz. the too frequently reiterated jury-service in the instance of the same individual, would be the result—if in this prohibition special jurors are to be considered as comprised, one consequence is, that the sheriff would, in case of prosecution, have to pay the penalty for an act done in obedience to orders made by the master, and contained in the writ, called a distringas, issued by authority of the court: for, as hath been seen, it is, in the case of a special jury, by the master, each time that the twenty-four persons to be summoned by the sheriff to serve on that jury are nominated, and as such included in the writ, as above, sent by him to the sheriff. Now then, to make a supposition, instead of leaving, between their times of service, the interval appointed by the act in the case of common jurymen, let the master, in the case of two special juries who are to serve on two immediately following occasions, compose the two lists altogether of the same persons. This, if the prohibition in question is to be understood as meant to comprehend special juries, is a direct transgression against the act.

On this supposition, though it is by the master (the officer of the court) that the offence is committed, it is not by the master, but by another person, the sheriff, that the penalty is to be paid. Such injustice, it would naturally be argued, cannot reasonably be supposed to have been the intention of the legislature. Therefore, concludes the argument, be the remedy what it may, it was no part of the intention of the legislature, that it should be applied to the case of special juries. And the inference being, if not strong enough to impose an obligation upon an unwilling judge, quite strong enough at the least to afford a sufficient warrant to a willing one, the eventual inapplicability of the remedy to the case in which it is most wanted, may, without much violence done to probability, be concluded.

From these provisions against package and permanence, provisions which ought in reason to have applied in common to both sorts of juries, and which accordingly were in appearance made applicable in common to both sorts, the sort called a special jury was thus in reality exempted:—which was the thing to be done.

§ 2.

Device 2—Rendering it unadvisable for a Sheriff to resist the Packing.

Possessed with the now antiquated notions about the importance of real jury trial to liberty, a meddling sheriff (it might at that time of day have been apprehended) might at one time or other start up, who, in the case of special juries, observing juries packed, and formed into a standing corps, in opposition to what might appear to him to have been the intention of the act, might, in relation to this most important application of it, feel disposed to use his endeavours to give effect to it.

For the repression of any such quixotism, it was expedient that provision should be made: and provision was made accordingly.

If, in the application of the act to special juries, he would have greater cause of fear in the event of his using his endeavours to give effect to it, than in the event of his contemning it, the conclusion was—and, it must be confessed, not an unnatural one—that no such endeavours would be used.

Contemning the act (it was accordingly contrived)—contemning the act in this particular, and thus leaving the system of package and permanence undisturbed—he would run no greater nor other risk, than that of having to pay a limited, and that at the utmost a minute, penalty:—a petty sum not exceeding £5 (3 Geo. II. c. 25, § 4.) Supporting the act, he would, in the instance in question (for so also it was contrived) find himself to be committing an offence—an offence called a contempt of court—and thereby subjecting himself to a mass of punishment altogether unlimited, and which, taking into account costs of defence, whether unsuccessful or successful, could not but amount to many times the amount of the penalty in the other case, as above. For, if the master, as above, puts into a list of special jurors (a list settled by him as above) any number of over-served special jurors, the order, given thereupon to the sheriff, to return those along with the other special jurors, is a writ or order of the court, disobedience to that writ or order an offence called a contempt of court, and the punishment inflictable for that offence, imprisonment for a time altogether unlimited, with or without nobody knows what beside.

At the worst, what was made clear was, that in leaving the act, in this respect, in a state of nullity, and the system of package and permanence undisturbed, he could not have anything to apprehend. Called to account (suppose him in any way, though by whom should he be called to account?) for having returned this or that over-served special-juryman: “The court,” he would have to say, “sent me a list of twenty-four persons to be summoned and returned by me to serve as jurors upon this cause, and this man’s name was upon the list:—how, then, could I have done otherwise? Had I omitted him, the court would have punished me as for a contempt.” Thus much aloud. Continuing the conversation to himself—“The king in parliament,” he would naturally say, “may, for aught I know, have forbidden me to return this man: but what I am sure of is—that my Lord Chief Justice has commanded me. Disobeying my Lord Chief Justice, the king (I am sure) would not protect me:—disobeying the king, my Lord Chief Justice (I have reason to think) will protect me. ‘No man can serve two masters;’ two oppositely-commanding masters: a prudent man will serve the strongest:—my Lord Chief Justice being the strongest, my obedience is for my Lord Chief Justice.”

§ 3.

Device 3.—Concealing the Power of Nomination given to the Master Packer.

Another exertion of lawyercraft may be seen in the care taken to throw a veil of concealment over the arbitrariness of the power exercised by the master in the nomination of special jurors. It is by him alone (as we have seen) that the “nomination”—the choice—of the forty-eight is made. Whatsoever appearance of judicial audience and impartiality it might, in the year 1777, and in a case of so much expectation and publicity as Mr. Horne Tooke’s case (See Part I. Ch. VIII. p. 96,) and under a judge no less remarkable for timidity than for arbitrariness, have been deemed advisable to assume, at this time of day, such is the progress that has been made, this arbitrariness may be seen stated without disguise in the books of practice—books written by lawyers for the information of none but lawyers, and without any apprehension of any such jealous eye as, by accident, might be cast on the business in the House of Commons. In the act 3 Geo. II. c. 25, § 15, how is the description given of this operation worded? Answer—in such manner as to convey the conception, that the choice was made somehow or other by somebody else, and that auspices were all that were contributed on this occasion by this judicial personage.—“Required upon motion as aforesaid” . . . (says the act) “to order and appoint a jury to be struck before the proper officer of each respective court.” Before is the word: and false as is the conception that will naturally be conveyed by it, yet so artfully is it chosen, that no charge of impropriety would be found to attach upon it. By this proper officer, it is true, are the forty-eight nominated in the first instance: but then the jury is not said to be struck, that is, the determination of the individuals that are to compose it completed, till, out of the forty-eight, twenty-four are struck off by other hands: viz. twelve by the attorney on each side.

By, and not before (it may indeed be observed,) is, however, the word employed in another part of this same act (§ 17.) But, nemo mortalium omnibus horis sapit: and, as every act of parliament is, or is liable to be, a pasticcio, nothing is more likely than that the clause with before in it, should have been the work of one hand, that with by in it, of another.

§ 4.

Learned Advice given accordingly to Sheriff Phillips.

Thus it was, that this act, which, at a time of ferment, and in the view of allaying the ferment, was, in show and pretence, provided in the character of a check to corruption in the case of jurors in general, special as well as common, was at the same time, in the case in which the mischief of the corruption was at beyond comparison the highest pitch (being the case wherein the interest which its pretended extirpators had in maintaining and increasing it was also at the same high pitch,) converted, as in the case of the lately-exhibited remedy against parliamentary corruption—converted, by suitable management, and with the happiest success—into a means of not only perpetuating, but aggravating the disease.

Of the state of things here depicted—of the nullity of the power of parliament—of the real supremacy of the judges—of this state of things, the living oracles, to whom Sir Richard Phillips, as above, had, at different times, betaken himself for advice, were, both of them, as will be seen, duly sensible.

This sheriff, being one of the speculative kind of men above supposed—ignorant, as all such men are—ignorant of the real state of existing circumstances—had been amusing himself with the fancy that King George is our king: that in consequence, disobeying King George, a man would be in peril, and that to obey him was the way, and only way, to be safe.

These learned persons knew, both of them, better things. “Your King George,” said they, “(to let you into the secret) is King Log: jump upon him, do anything else upon him you please.—King Ellenborough, King Mansfield, King Macdonald, these are your real ‘kings:’ these, should you venture to disobey but the least of them, you will find him a King Stork. As to your King George, to appeal to the laws of that nominal king, in justification of an act of disobedience committed against the orders of any of these real kings,—doing so, you would but make bad worse: doing so, you would but aggravate disobedience by ‘contempt:’ you might as well appeal to Bonaparte.”

Such was their advice: and very good, and, as the Lord Chief Baron says of it, “perfectly just” advice it was. The language in which they gave it was of course their own language—their own branch of the flash language: but the above is the honest English of it. As for the speculatist, the reformer, he found means to understand it, notwithstanding his ignorance: accordingly by these lanterns were his feet directed, as well as his paths lighted.

As to the Lord Chief Baron—so little in use have he and his learned colleagues been, to consider an act of parliament as anything, when their practice or their pleasure has been contrary to it, to him it was all the same whether, in the case of special jurors, the package and the permanence had or had not been prohibited by the act: the exemption provided in that case having been a covert one, it had escaped his observation, and he determined accordingly to conduct himself as it seemed to him, in disobedience to the law.

But to the sheriff, who, had he taken upon himself to give effect to what seemed to him to be the intention of the legislature, would have had to expose himself to the resentment of the judges, it was matter of serious anxiety to endeavour to ascertain what support he might promise himself from the letter as well as from the spirit of the law. The learned framers of this law, not having as yet attained for themselves, nor daring to promise to themselves, for their successors, any such complete and dauntless assurance, as hath now been declared by their existing successors, had made provision of their covert exemptions and loop-holes, as above: and of these loop-holes, our intended Curtius, the reforming sheriff, though he did not receive a perfectly complete or correct draught, received an intimation sufficiently instructive to save him from leaping, to no purpose, into the gulph into which he had been prepared to throw himself.

Thus in the way of useful instruction—instruction which, howsoever speculative, may at any time be made to lead to a practical purpose—the quantity of written matter unavoidably expended upon this contrivance in the art of packing may be turned to as extensive an account as possible. I would recommend it to your consideration, gentle reader, in the character of a sample of the mode in which, in matters of law, the public has been always served, and may always expect to be served, till by such service the destruction of society is completed, so long as, according to the existing order of things, it continues in the line of legislative penmanship to be served by lawyers, meaning fee-fed lawyers: it will continue to be served as hitherto it has been served—always with the same honesty—always with the same views—always with the same effect.

§ 5.

Special Jury System—just suspicion entertained of it.

That all the artifice that could be mustered for the occasion was not more than the urgences of the case required, may be collected from the particular recital prefixed, by way of preamble, to this very clause:—a recital from which it appears, that the indiscriminate extension of the special jury system to all causes, at the pleasure of the party on either side of the cause, had not been regarded altogether without distrust and opposition. “And whereas some doubt” (says that preamble, 3 Geo. II. c. 25, § 15,) “hath been conceived touching the power of his Majesty’s courts of law at Westminster, to appoint juries to be struck before the clerk of the crown, master of the office, prothonotaries, or other proper officers of such respective courts, for the trial of issues depending in the said courts, without the consent of the prosecutor or parties concerned in the prosecution or suit there depending, unless such issues are to be tried at the bar of the same courts.” Thus far the preamble: and then comes the enacting part, still preserving the word before, and giving to the party on either side the power to force upon his adversary the sort of judicatory thus corrupted.

As to “doubt,” if we may believe what is said in the report of a case determined in the year 1737, about seven years after the passing of this act, there could be no doubt in the case: the contrary to what is here insinuated was true beyond all doubt. No more than about four years before the passing of the act, a search had been made in this view: in thirty years then last past, that is, from about the year 1695 to about the year 1725, no instance of the ordering a special jury without consent of parties on both sides had been found: nor is it said that any instance had been found anterior to that period. Notices of the existence of such a power had indeed been now and then thrown out, but which, if that statement be believed (and no reason can be found why it should not,) were without any foundation either in regulation or in practice: were thrown out, and not being true in fact, it seems difficult to imagine with what view they could have been thrown out, unless it were with the view of paving the way for this statute.*

§ 6.

Harmony between the Astutia of 1730, and do. of 1808.

We come now to an observation, which brings the consideration of the so long ago enacted statute within the limits of the present epoch: I mean the use which, on the occasion in question, appears to have been made of it, by the Lord Chief Baron, with the privity of course, and consent, all along, of his learned and reverend colleagues.

The deficiency by which, in respect of the clause prohibitive of permanence, the act was and is rendered inapplicable to the subject of special juries, had probably been observed and understood, but was not thought fit to be indicated: it was not to be indicated—why? lest peradventure, attracting parliamentary notice, it should be supplied.

But, to the sheriff, in pursuance of the advice that had been given him, viz. from the temple, it might have happened to bring the question before the court, viz. in the mode, in and by that advice recommended. If so, his lordship and their lordships were ready for him. On arguing the matter on the ground of the statute, its originally intended inefficiency as to this point would have been brought to light. Though not perhaps through malice, the would-be reformer would have been found a trespasser: and, in addition to costs (costs got by him in the negative sense,) in addition to such his costs, accompanied with a reasonable dose of contempt in the form either of avowed contempt or pity, he would have got his labour for his pains.

Against the hypothesis thus advanced, this or that passage may be objected, in which the prudence of the serpent does not appear quite so conspicuous as the simplicity of the dove.

But should the fact be even admitted, the inference has no need to be admitted along with it. In a line of action to which a man is accustomed, the most consummate skill is not incompatible with equally consummate awkwardness in a line to which he is strange.

The line to which an English lawyer, and in particular an English judge, is accustomed, is that of making the most of the abuses, of which the common, alias unwritten, law, and in particular that branch of it which regards judicial procedure, has been made up, viz. by the hands, and for the benefit of his predecessors: of making his advantage of them on every occasion, of defending them as often as it may happen to them to be attacked: opposing every effectual remedy, and, as often as remedial measures cannot be kept out altogether, infusing, into such as are forced in, as large a proportion of insufficiency and mischievousness, as it may be found possible and prudent to introduce.

The line which is altogether strange to him, is the line of honest and beneficial legislation: including the abolition of such mischievous and inefficient arrangements as may happen to have taken place already as above. Accordingly, it is not by mere ill will—the immediate result of adverse interest—that a true-bred English lawyer, bred in the school of Coke and Blackstone, is prevented from doing anything well in the line of honest and beneficial legislation: it is moreover by genuine and unaffected dimsightedness and awkwardness.

Even though the task to be performed were of no stranger a complexion than that of making a pair of shoes, the most expert as well as learned and eloquent advocate that ever pleaded at an English bar, or judge that ever sat upon an English bench, would probably find it matter of extreme difficulty to make with his own hands any such article. But supposing the task to be the making of a code of laws, in such case, even though by some strange revolution or metamorphosis he were on a sudden to become personally reconciled to it, he would find much less difficulty in the making of a pair of shoes than in the making of any such code of laws as should prove to be (supposing such to be the quality required to be given to it) a really useful instrument in the hand of impartial, undilatory, unvexations, and unexpensive justice. In the making of the shoes, nothing more irksome could have happened to him than the employing, in so relatively useless and unprofitable a work, the necessary quantity of labour and time: from the very first stitch to the very last, he would not have found himself under any such unpleasant necessity as that of violating any maxim or opinion he had been accustomed to regard with affection and respect, or acting in opposition to the interests, opinions, or feelings of any of his friends. In the making of the beneficial body of the laws, he would not only have to lament, at every stroke of the pen, the misapplication of so much labour and time, but at every other line he would feel himself running counter to some such favourite maxim or opinion, as well as running counter to the interests, diminishing the profits, disturbing the ease, lowering the reputation, galling the pride, and, in the words of Lord Ellenborough’s libel law, “hurting,” “prejudicing,” “injuring,” and “violating,” the “feelings” of the companions of his youth, and most familiar friends.

He would find himself, or, as now we say, feel himself, running counter to that which, in lieu of the once universally pursued, or professed to be pursued, but now antiquated and exploded end and object—viz. the greatest happiness of the greatest number, has now of late openly, deliberately, and in black and white, been avowed and acknowledged as and for the permanent end and object—if not of all government, of the government of his Majesty’s most favoured set of servants—viz. the preserving from “hurt,” “prejudice,” “injury,” “violation,” and every other such unpleasant accident, the feelings of “great characters,” in “high situations.”*

[* ]Wilks against Eames Andrews, p. 52, Mich. 11 Geo. II. anno 1737. The court said, “that though it was not usual, before the said act, to grant special juries without consent, yet in some instances, and for special causes, it was, and might be done: . . . And Lord Chief Justice cited the King and Burridge, Pasch. Geo. [I.] 10, when upon search it was found that no special jury had been granted for thirty years then last past without consent; and the Lord Chief Justice Pratt was then of opinion, that the court might grant a special jury without consent, but the other judges differed;” i. e. were of opinion that the court could not grant a special jury without consent.

From this it seems, that at both periods the Chief Justices knew what they were about, and accordingly invented pretences for thus forcing in the special jury system: but that, in Pratt’s time at least, viz. anno 1725, the puisnes were not in the secret: inasmuch as they opposed the extension thus endeavoured to be given to it.

From this it may be seen that a special jury, in the character of a subject and instrument of package (unless before this time the crown lawyers assumed, and by the judge were permitted, to exercise a right of commanding a special jury in crown causes, as would naturally be the case) as well as a source of increased lawyer’s profit, took its rise from this act: and, as well in the character of an occasional source of corruption as in that of a constant source of lawyer’s profit, it has already been seen how valuable an engine it has proved in the manufactory of abuse.

In the character of an instrument applicable to the purpose of corruption, our estimate of its value may receive some assistance from a circumstance mentioned in the same Report. In “the case of the corporation of Bewdley,” the trial being at bar, twenty guineas a-piece, it appeared, had been given to each juror. Nor would the enormity of the sum have transpired, but for an application made by the losing party for what is there called “lowering it,” which the court did: viz. to five guineas, i. e. forbore to oblige the losing party to pay any more than five guineas, not obliging him to pay the twenty; for, as for taking out of the pocket of each juror fifteen guineas out of the twenty he had received, that was altogether out of the question:—that was what could not be done. The money was already in their respective pockets; and there was neither statute law nor judicial practice that could have furnished so much as a pretence for making them disgorge it.

In the same case, in speaking of the quantum of the extra allowance given to these well-selected assessors, an observation made by Strange, Solicitor-General, is—that “though the practice is to pay them more than to common jurors, this is mere matter of generosity, and ought not to be reimbursed by the other (meaning the losing) party.”

All depending on generosity, and the crown, i. e. its servants, and they alone having it in their power to be generous, and without bounds, as well as without any expense to themselves, it may be imagined what sort of a chance an individual would have, under a set of jurors, all named by this one party, possessing, and all along exercising, the power of either rewarding them, at the expense of others, to an unlimited amount, or not rewarding them at all, according as they behaved.

The crown, had it or had it not a special jury at pleasure, and not depending on the consent of the party on the other side?

A circumstance indeed that contributes to render it probable, from the first invention of special juries, the king, i. e. the servants of the crown, never failed to have a special jury of this sort for asking for, is—the care which, at the early period above mentioned, viz. the beginning of the reign of King William, was taken, that the faculty of striking out the 12 out of the 48 should not, on the part of either party, be exercised, without its being specially applied for, and on application ordered.

And so lately as in the time of Lord Mansfield, it is stated as a rule, that when the solicitor omits to attend after notice, the master in K. B. may strike the jury ex parte. Cowp. 412. Rex v. Hart. Hilary, 16 Geo. III. B. R. 1776.

In such cases as were left to a common jury that is, in causes theimportance of which was not sufficient to excite any interest in the bosoms of the judges or their connexions, chance was the instrument they saw directed to be employed for the reducing the number on the gross list to twelve—the number adapted to the serving list. Had justice been the object, here then was a principle and a precedent to have pursued. But in cases that were deemed worth their attention, these ministers of justice knew better than to trust in any degree to chance, what might be secured by prudence.

In the case in Cowper, before Lord Mansfield,a a curious enough circumstance is the carelessness, real or simulated, of the judge, in regard to the person by whom the twenty-four should be struck out, in case of a refusal on one side (in the case in question it was on the side of the defendant) to strike out the twelve—the right of striking out which, according to the practice, belonged to each side, and consequently to that side.

What the reason of the case plainly enough required was—that the party attending for the purpose (in the case in question, the solicitor of the crown) should exercise his right of striking out his twelve, and then, the defendant’s solicitor making default, the right that belonged to him should, from necessity, be exercised by the supposed impartial officer, the master.

In this case, both on the part of the counsel by whom the motion is made, and on the part of Lord Mansfield, the judge, by whom the prayer of the motion is refused, an assumption made is—that, in case of such default, it belonged to the master, and him alone, to strike out the whole four-and-twenty: that is, twelve for the defendant who made default, and twelve for the solicitor of the crown, who made no default.

In this case had there been any real distinction of interest and feelings, nothing could have been more palpably partial and iniquitous, than to put it into the power of one party, by thus wilfully making default, to deprive the other party of his right. Yet that apparent injustice—and this too to the prejudice of the crown—was committed. Why? Because between the servants of the crown in the judicial line, and the servants of the crown in the agency line, the understanding was so entire, and because amongst them it was so perfectly well understood, that, so far as concerned the interests and wishes of the servants of the crown of all descriptions, whether the person by whom the striking out were performed were the master packer or the crown solicitor, the effect would be just the same. Thus it is, that to any scrutinizing eye the secret, had there been any, would have been betrayed. But there was no secret in the case: and, as to any scrutinizing eye, there was none such within sight.

[* ]“The Duke of Portland . . . . informed me . . . . that your Lordship thought a change in Lord Castlereagh’s situation in the government desirable,—provided it . . . . could be reconciled to Lord Castlereagh’s feelings. The Duke of Portland . . . . told me that hopes were entertained . . . . of facilitating a general arrangement, in which a complete change in the war department might be effected consistently with Lord Castlereagh’s feelings.” See, in Cobbett’s Register, Dec. 2, 1809, the Letter of Mr. Ex-Secretary Canning to Earl Camden, Lord President of his Majesty’s Council, in which the conduct of a war on which the fate of the human species depends, is, for near six months together, viz. from 2d April to 20th September 1809, in the minds of the minister who writes this letter—the minister to whom this letter is written—and the other ministers in general, stated and shewn to have been a secondary consideration: the primary, and during that whole time the prevalent, consideration being the feelings of a single individual: that individual, a minister whose unfitness for such his employment had during all that time been recognised, viz. either by every one, or by almost every one of his colleagues:—and such colleagues!

Now in any such cabinet (not to speak of contingent ones,) suppose a proposition brought forward for the making of any such code of laws, as should be subservient to the purposes of cognoscible, impartial, undilatory, unvexatious, unexpensive justice. On what circumstance would the reception given to it depend? Answer—on its being capable of being made “consistently with,” or “of being reconciled to” the “feelings” of the great character whose seat is at the head of the law. Were it to happen to the rule of action to be cognoscible, impartial, and in all its other points, in the highest degree, or in any higher degree than at present, subservient to the greatest happiness of the greatest number—were the recourse to it rendered in any degree less dilatory, vexatious, or expensive, than it is at present—this would, in all its points, be a result opposite to the interest of that great character in all its points—viz. money, power, case, reputation, vengeance, with their et cæteras: also to that of the several learned, and noble and learned, and other great characters his colleagues, and other his friends. Such is the prospect which the law has of seeing itself well conducted. As to the war, had that been well conducted, the result, so far from being in any point opposite, would in every point have been, and in a high degree, subservient to the interests of the great character by whom it would have been so conducted.

[* ]Wilks against Eames Andrews, p. 52, Mich. 11 Geo. II. anno 1737. The court said, “that though it was not usual, before the said act, to grant special juries without consent, yet in some instances, and for special causes, it was, and might be done: . . . And Lord Chief Justice cited the King and Burridge, Pasch. Geo. [I.] 10, when upon search it was found that no special jury had been granted for thirty years then last past without consent; and the Lord Chief Justice Pratt was then of opinion, that the court might grant a special jury without consent, but the other judges differed;” i. e. were of opinion that the court could not grant a special jury without consent.

From this it seems, that at both periods the Chief Justices knew what they were about, and accordingly invented pretences for thus forcing in the special jury system: but that, in Pratt’s time at least, viz. anno 1725, the puisnes were not in the secret: inasmuch as they opposed the extension thus endeavoured to be given to it.

From this it may be seen that a special jury, in the character of a subject and instrument of package (unless before this time the crown lawyers assumed, and by the judge were permitted, to exercise a right of commanding a special jury in crown causes, as would naturally be the case) as well as a source of increased lawyer’s profit, took its rise from this act: and, as well in the character of an occasional source of corruption as in that of a constant source of lawyer’s profit, it has already been seen how valuable an engine it has proved in the manufactory of abuse.

In the character of an instrument applicable to the purpose of corruption, our estimate of its value may receive some assistance from a circumstance mentioned in the same Report. In “the case of the corporation of Bewdley,” the trial being at bar, twenty guineas a-piece, it appeared, had been given to each juror. Nor would the enormity of the sum have transpired, but for an application made by the losing party for what is there called “lowering it,” which the court did: viz. to five guineas, i. e. forbore to oblige the losing party to pay any more than five guineas, not obliging him to pay the twenty; for, as for taking out of the pocket of each juror fifteen guineas out of the twenty he had received, that was altogether out of the question:—that was what could not be done. The money was already in their respective pockets; and there was neither statute law nor judicial practice that could have furnished so much as a pretence for making them disgorge it.

In the same case, in speaking of the quantum of the extra allowance given to these well-selected assessors, an observation made by Strange, Solicitor-General, is—that “though the practice is to pay them more than to common jurors, this is mere matter of generosity, and ought not to be reimbursed by the other (meaning the losing) party.”

All depending on generosity, and the crown, i. e. its servants, and they alone having it in their power to be generous, and without bounds, as well as without any expense to themselves, it may be imagined what sort of a chance an individual would have, under a set of jurors, all named by this one party, possessing, and all along exercising, the power of either rewarding them, at the expense of others, to an unlimited amount, or not rewarding them at all, according as they behaved.

The crown, had it or had it not a special jury at pleasure, and not depending on the consent of the party on the other side?

A circumstance indeed that contributes to render it probable, from the first invention of special juries, the king, i. e. the servants of the crown, never failed to have a special jury of this sort for asking for, is—the care which, at the early period above mentioned, viz. the beginning of the reign of King William, was taken, that the faculty of striking out the 12 out of the 48 should not, on the part of either party, be exercised, without its being specially applied for, and on application ordered.

And so lately as in the time of Lord Mansfield, it is stated as a rule, that when the solicitor omits to attend after notice, the master in K. B. may strike the jury ex parte. Cowp. 412. Rex v. Hart. Hilary, 16 Geo. III. B. R. 1776.

In such cases as were left to a common jury that is, in causes theimportance of which was not sufficient to excite any interest in the bosoms of the judges or their connexions, chance was the instrument they saw directed to be employed for the reducing the number on the gross list to twelve—the number adapted to the serving list. Had justice been the object, here then was a principle and a precedent to have pursued. But in cases that were deemed worth their attention, these ministers of justice knew better than to trust in any degree to chance, what might be secured by prudence.

In the case in Cowper, before Lord Mansfield,a a curious enough circumstance is the carelessness, real or simulated, of the judge, in regard to the person by whom the twenty-four should be struck out, in case of a refusal on one side (in the case in question it was on the side of the defendant) to strike out the twelve—the right of striking out which, according to the practice, belonged to each side, and consequently to that side.

What the reason of the case plainly enough required was—that the party attending for the purpose (in the case in question, the solicitor of the crown) should exercise his right of striking out his twelve, and then, the defendant’s solicitor making default, the right that belonged to him should, from necessity, be exercised by the supposed impartial officer, the master.

In this case, both on the part of the counsel by whom the motion is made, and on the part of Lord Mansfield, the judge, by whom the prayer of the motion is refused, an assumption made is—that, in case of such default, it belonged to the master, and him alone, to strike out the whole four-and-twenty: that is, twelve for the defendant who made default, and twelve for the solicitor of the crown, who made no default.

In this case had there been any real distinction of interest and feelings, nothing could have been more palpably partial and iniquitous, than to put it into the power of one party, by thus wilfully making default, to deprive the other party of his right. Yet that apparent injustice—and this too to the prejudice of the crown—was committed. Why? Because between the servants of the crown in the judicial line, and the servants of the crown in the agency line, the understanding was so entire, and because amongst them it was so perfectly well understood, that, so far as concerned the interests and wishes of the servants of the crown of all descriptions, whether the person by whom the striking out were performed were the master packer or the crown solicitor, the effect would be just the same. Thus it is, that to any scrutinizing eye the secret, had there been any, would have been betrayed. But there was no secret in the case: and, as to any scrutinizing eye, there was none such within sight.

[a ]“Rex v. Hart, Esq. Cowp. 412. Friday, Feb. 9, 1776.“Mr. Davenport moved for directions to the master to strike out twenty-four of the special jury ex parte, in case the defendant and his agent should omit to attend the master’s appointment. The motion was founded on an affidavit of three appointments having been made, and their declining to strike out till a day should be appointed for the trial. . . .“Lord Mansfield was clear the master might do it without any direction from the court; and declined giving him any in particular, but had no doubt he might do it now just as if he had proceeded last term; . . . .”