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CHAPTER VI.: LEARNED ADVICE FROM THE TEMPLE. - 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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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.
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.
[‡ ]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.
[* ]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.
[‡ ]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.
[¶ ]This insertion of this word [not] seems to be a slip either of the pen or of the press. J. B.