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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 VI.

LEARNED ADVICE FROM THE TEMPLE.

Learned advice, in the shape of a letter from the Temple, having, on this occasion, borne no inconsiderable part in the business, viz. partly as having afforded guidance to the sheriff, partly as having helped to afford legal notice to, and been honoured by the declared approbation of the Lord Chief Baron, the reader will probably expect to see it laid before him here, instead of his being sent in quest of it to another publication.

I proceed, therefore, to exhibit a copy of it, subjoining, in the form of notes, a few observations, of the propriety of which the reader will judge.

“TO MR. SHERIFF PHILLIPS.

“Dear Sir,—

I agree with you in thinking, that the clause referred to in the inclosed act of parliament applies to special as well as common jurymen;*for if it be inconvenient† for the latter to attend oftener than the act requires, it must be much more so to the former, on account of their rank and station in life.‡

“But with regard to the sheriff, I think there is a very material distinction between common and special juries. With respect to the former, the returning them upon the venire facias rests with the sheriff; and as he is required by the 5th section of the statute 3 Geo. II. c. 25 to enter or register in a book to be kept for that purpose, the names of such persons as shall be summoned, and serve as jurors on trials at Nisi Prius, with their additions and places of abode, and also the times of their services, so I think that if he were to return any persons to serve as common jurymen oftener than he ought, he would be liable to the penalties of the statute; but with respect to special juries, they are struck before the master of the King’s Bench, and the remembrancer in the Exchequer, under the 13th section of the above act of parliament, which declares that the jury so struck shall be the jury returned for the trial of the issue; and accordingly their names are specially inserted in the distringas. If the sheriff, therefore, who has nothing further to do with the striking of special juries, than attending with the freeholders’ book out of which their names are taken, were to object to the nomination of such as had before served within the limited time, and his objections were overruled, he would not, I think, be liable to any penalty for summoning them upon the distringas; and indeed, if he were to refuse to do so, he might incur a contempt of the court, who would not suffer their process to be disputed* in the execution of it by the sheriff. If you should think it worth your while,† however, to rectify‡ the practice which has obtained, of calling so often upon special jurymen to attend at Nisi Prius, the proper mode, I conceive, would be, when you attend with the freeholders’ book for the purpose of striking a special jury, to carry with you the book containing the names of such persons as have already served within the last two terms or vacations, and apprize the master or remembrancer* thereof, requiring him not to nominate them afresh; and if he does, you might try the effect of an application to the court to set aside the nomination, or have others nominated in lieu of those who had served before, on the ground that you might otherwise by possibility be subject to a penalty for summoning them. By this means the opinion of the court would be obtained,† and they would probably direct their officers to alter the practice‡ in future.

“It would not, I think, be prudent for you to hazard the incurring a contempt of the court by not summoning any of the jurors named in the distringas, on the ground of their having served before within the limited time; particularly as you would not, I conceive, for the reasons I have given, be liable to a penalty for summoning them; and though the jurors who had served before might be excused from serving again, on producing to you a certificate∥ of their former attendance, yet, I think, that the judge at Nisi Prius would not be inclined to fine the officer who had not¶ nominated them.—I remain, dear Sir, your obedient servant, * * * * * *.”

Temple, March 10, 1808.

[* ]Applies to special . . . . jurymen.] This is the clause forbidding the summoning and returning of over-served jurymen: this the passage which drew (as we have seen) from the Lord Chief Baron the avowed persuasion, that the Practice he had so long been pursuing, and was then defending, was a practice meant to be prohibited, and prohibited accordingly, by parliament. But that, in this persuasion, as well the learned judge, as the learned counsel whose observations he found so “perfectly just,” were perfectly mistaken, has, in the last preceding chapter, been shown at large.

[† ]If inconvenient for the latter to attend . . . . much more to the former.] Inconvenient to a guinea-fed juryman to attend oftener than the act requires! About as inconvenient as to this learned gentleman it is to have too many briefs. When the briefs crowd in too thick upon him, he returns the overplus: when the summonses crowd in too thick upon the guinea-man, he, the guineaman, obeys such as he finds it agreeable and convenient to obey, and neglects the rest.

Note, that of the twenty-four who, for each cause, are always summoned, it is but twelve that, in any one cause, can ever serve: therefore every other time of his being summoned, each special juror, or, in other words, half the number summoned, might, if the inconvenience were real, stay at home without being missed: and, to a majority composed of these gentlemen, suppose even a few yeomen jurors added, viz. in the character of talesmen, who would ever care about it?

Of the terrific fine, which (by the act of which the act in question is an amendment) is, in case of non-attendance, hung over the heads of jurymen, were I to add that it does not extend to special jurymen, his reply would be of course—“Oh, but this is according to the construction you put upon the act:—mine was different.” Be it so. But what reason could a sheriff have for supposing, that when he was sending an invitation to a gentleman, to partake of a good dinner, in good company, after sitting to act the part of a judge, and to receive moreover a guinea at the least, and perhaps a number of them, he was putting him to “inconvenience?” or if, in the instance of this or that particular gentleman it were an inconvenience, what is there that could prompt a sheriff to be too frequent in the reiterated production of such inconvenience?

Note that, in those days, a guinea was worth at least twice what it is worth at present.

Twenty years or thereabouts after the passing of this supposed inconvenience-producing act—(take for the act either the original act of the 3 Geo. II. or the amending act of 4 Geo. II.)—the topic of special juries came again upon the carpet: and what was the complaint then?—that, in the character of special jurymen, gentlemen were put to inconvenience by over-attendance? No:—that they were oppressed?—no: but that they were over-pampered:—that “great and extravagant fees were paid to them:”—and “frequent” are these complaints declared to have been by the act. (24 Geo. III. c. 18, § 2.)

[‡ ]Inconvenient . . . . it must be much more . . . . on account of rank.] What we have just been seeing, is a specimen of the sort of regard paid by the fraternity of lawyers to the convenience of gentlemen jurors—the class of jurors, whose convenience is entitled to regard:—let us now observe the sort of regard paid by the same learned fraternity to the convenience of common jurors—low people, whose convenience is entitled to........ to what? to any regard? To this one knows not exactly what to say:—either to none at all; or, if to any, to next to none.

Instead of convenience, we might say feelings. Since the use made of it for crushing the liberty of the press, feelings, always the more sentimental, is become the more legal term.

To a man who, in the sale of his time, finds the sole source of his subsistence, less inconvenient to sacrifice a portion of his time for 8d. than to a man to whom not only subsistence but affluence is secured, and that without the sale of any part of his time, it is to sell, on this particular occasion, the same portion of his time, receiving for it, besides a very good dinner, at the least one guinea. This is the proposition, with the supposed truth of which the learned gentleman was not only possessed, but to such a degree captivated, that, under the guise of a reason, introduced in form by the word for, it led him astray into what we have seen to be an erroneous conception, or at any rate an erroneous declaration, of the meaning of an act of parliament.

Such is the proposition, which, in this its character of a reason, stands at the head of those “observations” which, in the sight of the preeminently learned judge, were so “perfectly just:” and which, in that of another learned barrister, who dates from Lincoln’s Inn, will be soon seen to be so “perfectly clear and correct.”

The information thus afforded is no light matter:—inasmuch as here we see, expressed in words, the sort of regard, which the convenience, the feelings, the interests,—(any of these words may alike be employed)—the interests (say) of the vast majority of the people, may expect to experience at the hands of lawyers of all sorts and sizes, official as well as professional: the same sort of regard which stands expressed by deeds, in the sort of law, framed by these same learned hands—for the use shall we say?—no, anything but the use—of that same despised portion of the people.

In this sketch may be seen a picture—a family picture—of the fraternity of English lawyers:—a picture which cannot be charged with hostile distortion or discolourment, since it is drawn by their own hands.

From this view of it might be formed, à priori, a conception, of the treatment which, by sad experience, this portion of the people feel rather than see themselves to have met with at their hands: what they have met with, and for ever may justly expect to meet with, so long as, in Blackstone’s sense and words, “every thing is as it should be.”

Not that they are altogether devoid of sympathy:—for no human being was ever altogether devoid of sympathy. But, as is but too natural, their sympathy, such as it is, is confined to the classes with which they associate or wish to associate: and having, as we have seen, been so liberal of it to the distinguished few above—the men in high situations—they have none left for the undistinguished multitude beneath.

Hence it is that in England (not indeed in England only) the people have come to be divided into two classes: one, of those to whom justice is to be sold; the other, of those to whom justice is to be denied:—denied, for the benefit of those who alone can come up to the price: and who by that means are authorized and required to purchase the faculty of oppressing, under the name, and with the power, of justice.

This is the authoritative comment upon Magna Charta:—the comment, written, day after day, by the fee-fed hands of the twelve judges; not forgetting the one supremely learned person, who sits at the head of the law, in this as well as so many other senses.

That a poor man can better afford to work for nothing than a rich man (for this, though a short interpretation, is a sufficiently correct one,) is a proposition of that sort, which it seems impossible for any men to repeat, who, after notice given him that it will be looked into, should bestow on it a second glance. But how impossible soever it may be for a man seriously to think so, nothing can be more easy to a man than to say so: and when such is the state of his feelings, that, while those of the higher classes are something to him, those of the lower classes are as nothing, it is no less natural for him to say of the working class, that they can afford to be made to work for nothing, and that they don’t mind being made to work for nothing, than it was for the cook to say of her eels, that they don’t mind being skinned. Why did not the cook’s eels mind being skinned? Because they were used to it. Why do not the Lord Chief Baron’s common jurors mind being made to work for nothing? Because they are used to it. The cook for her wages is used to see eels skinned without minding it: and the Lord Chief Baron, for his fees, and those of his friends, is used to see the great majority of the people outlawed and stripped to the skin, without minding it. In both cases the construction is ambiguous; but in both cases the import is clear enough.

“Perfectly just” as this mode of doing justice to rich and poor is, it seems, at present, it has not been looked upon in that light by all judges at all times.

Wilkes against Eames, Mich. 11 Geo. II. anno 1737. Andrews’s Rep. p. 51.—“Probyn Just: said, that he knew no reason why special jurors, attending a trial in the country, should have more allowed them than a common jury; the other being generally more able and better qualified to serve their country than these.”

[* ]Court . . . . would not suffer their process to be disputed.] No: that they would not; viz. if by any one it happened to be found “worth while” to bring the matter before them:—and at any rate, this was a very good advice.

[† ]Worth your while.] This is the passage which hit so exactly the taste of the Lord Chief Baron, and which accordingly, in the character of an argument ad hominem, he made use of, in the representation made by his lordship, as we have seen, to the sheriff, in hopes of engaging him to give up so romantic a scheme. Would you give execution, would you pay obedience, to an act of parliament?—think first whether it be worth while:—if it be not worth while, who ever (i. e. which of us ever?) thinks of paying obedience to an act of parliament?

[‡ ]To rectify the practice.] Rectify—as applied to practice—to the practice of judges—to his own practice—this was a word which has been seen to be—and indeed might without much expense of thought have been expected to prove—not altogether to the learned judge’s taste: accordingly, as we have seen—and for what reason we have seen—he slips in the word reform instead of it. For, under this name, though not so easily under the name of rectification, the proposed and dreaded correction might without reserve be slighted and discountenanced.

[* ]Apprize the master or remembrancer thereof.] In pursuance of this advice, the sheriff did “apprize the master or remembrancer thereof:” and in chapter the 9th, we shall see what he got by it. In giving to the sheriff this part of the advice, this learned friend of his was quizzing him; unless so it were that the learned gentleman, how well soever deserving to be, was not completely in the secret.

[† ]The opinion of the court would be obtained.] Yes:—and so would the expense of obtaining it: and moreover the disgrace and ridicule of presuming to endeavour to obtain it. To the sheriff, along with the expense, might have been obtained, perhaps, another epigram, still more pointed and quizzatorial than the Italian one. From any such “urbane” (for in the application of this attributive the sheriff cannot be accused of error) and polished bench—what would not indeed have been obtained is—any such attributive as that of the “greatest fool,” or that of the “weakest man,” that ever walked over earth without a keeper.

In the character of an advocate, to apply such attributives belongs perhaps only to Sir Vickery Gibbs: in the character of a judge, to take them up for the purpose of rendering them more bitter, under the guise of sweetening them—as Lord Ellenborough did to this same sheriff, on an occasion on which, according to his lordship’s own declared opinion, what was said by this same person, in the character of witness, could have no influence on the fate or merits of the cause—belongs surely only to Lord Ellenborough.

In the same common design, different parts are acted, as nature, habit, and situation serve, by different characters: and amongst them, while no pretence for any more substantial vengeance can be found, such is the retribution that ought to be expected by all such adventurous knights as think to remove, though it be but a grain, of the mountain of abuse accumulated by the hands and for the use of English—add, or of Scottish lawyers.

[‡ ]They would probably . . . . alter the practice.] Alter the practice indeed!—uncompelled by parliament, a court—an English law-court—or, uncompelled by the people, an English parliament—alter for the better its own practice! Yes: when without compulsion, the Mufti turns Christian; or the Pope, Protestant. The court alter its own practice! If for the better be meant, when was it ever known to do so? On the part of the learned author of this most learned advice, behold still the same pleasantry; or still the same simplicity and inscience.

[∥ ]Excused . . . . on producing a certificate.] Sage advice, still in the same style. Excused, you may perhaps be from attending to receive a guinea or several guineas—excused, on condition of producing a certificate, the endeavour to produce which might or might not succeed, and in case of success would produce, without the guinea, more trouble than the attendance.

Here, as might be expected, we see another lawyer’s remedy:—I don’t mean a remedy proposed by another lawyer;—I mean another remedy, of the sort of those which lawyers are in use to make up and administer;—of that sort which they have in store for their clients, in the character, whether of consultants, or suitors. Bad indeed must the disease be, if the remedy they have to administer be not worse. And so happily as well as ingeniously have they managed as not to have left, even at their own disposal, any good ones.

[¶ ]This insertion of this word [not] seems to be a slip either of the pen or of the press. J. B.