The Online Library of Liberty

A project of Liberty Fund, Inc.

• 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 IX.

TRANSACTIONS AT THE REMEMBRANCER’S.

§ 1.

The Transactions themselves.

We have thus far attended our knight on his negotiation—an epistolary one we have seen it was—with the Lord Chief Baron. We have moreover thus far seen the fruit of it:—instead of the justice called for, we have seen him put off with a figure of speech: a sarcasm some might call it, others an oxymoron, made at any rate out of an Italian epigram in the shape of an epitaph, and that so old as to have grown stale:—instead of the fish prayed for, a serpent given, and with a sting too in the tail of it, though perhaps not a very sharp one.

Let us now follow him to the packing office.

Whether it was that the advice couched in the epigram had not as yet been received, or, having been received, the eloquence of it had failed of producing the effect it looked for, so it was that our Quixote Sheriff took the irregular course of doing “better than well.” Besides the blame—for such it appeared to him—of acting, in the teeth not only of a principle of the constitution, but of an act of parliament, he saw, or thought he saw, a penalty of £5 for every transgression, impending over his head. Raw and uninstructed as he was in the practice of courts, led astray by a propensity to innovation, speculation, and the false philosophy of the times, a conceit possessed him that the tide of corruption ought rather to be stemmed than swum with, and that acts of the legislature were designed rather to be obeyed than to be contemned. Misled by theories, parliament, to his fancy, presented itself as superior to judges. It was not long before his error stared him in the face.

Under such impressions it must have been that, on a certain day to this compiler unknown,* our knight presented himself at the busiest of the two Exchequer packing offices—the office of the deputy remembrancer—with the freeholders’ book in his pocket: “having previously provided himself with a list of persons who had served . . . . within two terms:” viz. in the hope of preventing, if practicable, their serving again, till the time should come at which their service would not be an infringement of the prohibition, certainly pronounced by justice, and supposed to be pronounced by law.

Conceive who can, the surprise of Mr. Deputy Remembrancer, when, the figure of the sheriff appearing before him—and, with the list of over-served guinea-men in one hand, and the act of parliament, instead of a pistol, in the other, advancing upon him—he heard himself called upon, contrary to all precedent, to pay obedience to the law. This was rank innovation: this was plain jacobinism. Meantime, what was to be done? The sheriff with his instrument of terror was present: the reverend judge, with his instrument of support, his Italian tombstone, was not present.—Our Felix trembled.—The existence of the law was recognised, its application admitted, its authority submitted to: submitted to for the moment, though even then not altogether without wry faces. During the continuance of the ague fit, the instrument of terror being all the while in view, “two juries” were struck: and “in striking them, the official striker” was, “to a certain extent”—though only to a certain extent—influenced by this principle. Of the pockets which, cause after cause, and “term after term,” had been used to come and load themselves with guineas, some, though some only, were for the moment kept at home, kept at home for awhile to empty themselves, and make room for others: others made, of course, as nearly as they could be found, of the same materials, and of the same cut.*

Obsequiousness having thus been produced—but in a quarter, and in a direction, very different from that in which by law (I mean by the judicial makers of law) it had been intended, and been accustomed to be produced—a natural object of curiosity will be to know what length of time so extraordinary a phenomenon continued to have place.

The obsequiousness—the compliance continued just so long as the force by which it had been produced, viz. the instrument of terror above mentioned, continued to be applied. The acting force being removed, reaction regained the ascendent. The pliancy lasted but for two strikings: the principle of elasticity displayed itself, rigidity succeeded, and regularity (I mean what in Westminster-hall is meant by regularity, viz. regular disobedience to law) was restored.†

The cause of this return to regularity and social order lies at no great depth. Though, between the titular remembrancer of the Exchequer and his deputy, there exists, unless by accident, no more connexion than between the emoluments of his principal and the duty on pretence of which the emoluments are received, between the pre-eminently learned chief of that judicatory and his subordinate the aforesaid deputy, the intercourse is necessarily close and intimate.

§ 2.

Instruction gained—Definitions and Maxims.

Of two things one. Either in this office an act of parliament is felt in the character of a binding force, acting as a bridle upon private inclinations, or it is not: if it be, the consequence is—its force having, in the present instance, proved ultimately inefficient—some external force must have been employed in overpowering it; and if so, we see, without much danger of error, what that force was: but if not—if in that office an act of parliament is really not felt in the character of a binding force, what in that office is the state of justice?

In that office—thence (might have been added) in the court under which it acts—thence again—in the other courts in the view of which it acts:—but of this elsewhere.

Upon the whole, bench and office together—doctrine and practice together—doctrine leading practice, practice expounding doctrine—we may obtain, if not exactly that sort of instruction and satisfaction which an unlearned eye, unversed in the practice of courts, might be apt to look for—at any rate, a definition: a definition which, having for its subject a word of no scanty extent, and (relation being had to its extent, and the application given of it) of no mean importance, presents some claim to notice.

Well, considered as a quality of action—in any such phrase, for example, as acting well—is a relative term, involving in its import an implied reference to the situation of the person whose agency is considered.

On the part of a chief judge, notice having been received by him of an act of parliament prohibiting a certain practice, and the application of the act to that practice having been deliberately admitted, acting well consists in defending the practice in black and white, and after a momentary interruption, produced in another subordinate station by present urgency, causing it, or at least deliberately suffering it, to be resumed and continued as before.

On the part of a deputy remembrancer,—an officer occupying an office subordinate to that of the chief judge—acting well consists in acting, under the direction of the judge, in the maintenance and support of such supposed prohibited and illegal practice, and, after notice and recognition of the illegality, and a momentary stop put to the practice, resuming it, and with it the habit of considering the authority of a judge as superior to that of the legislature.

As to better than well, in the unanimous opinion of all the commentators, the use of the phrase is a flower of rhetoric—a figure of speech—some might call it oxymoron—others irong; the opinion intended to be inculcated being the reverse, or nearly so, of the meaning which on the face of the literal sense stands expressed. Ill is the meaning really intended to be inculcated; so that, upon the whole, the doctrine, meant in and by the epistle in question to be inculcated, may be comprised in two short and well-matched aphorisms or maxims:—he acts well, who violates the law: he acts ill, who either obeys it himself, or calls upon others to obey it.

PART III.

STATE OF THE PACKING SYSTEM, ANNO 1809.

[* ]On a certain day to this compiler unknown.] Unfortunately, as to this point the original memoirs have left us—in the dusk at least, if not in the dark. That the visit of the sheriff to the remembrancer’s office was antecedent to the date of his above-mentioned letter to the Lord Chief Baron, seems probable: for, though we are not expressly informed of its being so, yet as the mention made of it is antecedent to that made of the letter, such, in default of more positive information, it seems natural to conclude was the order of the facts. A circumstance, indeed, by which the force of the inference may perhaps be thought to be somewhat lessened, is—that almost immediately after comes an incident stated as subsequent to the month of July, whereas it was the month of April that closed, as well as opened, that epistolary correspondence. But the former hypothesis may perhaps be found to receive confirmation from another circumstance: viz. the symptoms of pliancy which, it will immediately be seen, were produced by, and at the time of, that visit—I mean the pliancy of that moment, when compared with the restored rigidity of later times.

Before the result of the epistolary application made to the superior was known, the personal application would hardly have been made to the subordinate. Now, in this interval, there was ample time for the communication that would naturally be made of the matter from the superior to the subordinate: and, if any such communication had been made, the compliance, the unwillingness of which seems pretty conclusively evidenced by the subsequent rigidity, would hardly have taken place.

[* ]“I attended,” says the sheriff, “at the office of the deputy remembrancer of the Exchequer with the freeholders’ book, and had previously provided myself with a list of persons who had served in causes at Nisi Prius within two terms. The deputy remembrancer recognised and admitted the force of the above recited clause, (4 Geo. II. c. 7, § 2,) and in striking two juries at that time was, to a certain extent, influenced by its principle.” Phillips, p. 158.

[† ]“I have since learned, however,” continues Sir Richard from the passage last quoted, “that no regard is paid to the provisions of this clause, and that the juries are still,” (on the 20th of September 1808, the day on which his publication bears date,) “struck nearly as heretofore. On examining the list of persons returned to serve on special juries in the Exchequer in the month of July, I have observed,” continues he, “the name of one person serve in nine causes, of two or three in eight causes, and of several in seven or six causes,” p. 159.