Front Page Titles (by Subject) CHAPTER I.: COMMONS' DEBATE, 24 th APRIL 1809. PACKING AND CUTTING. - The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)
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CHAPTER I.: COMMONS’ DEBATE, 24 th APRIL 1809. PACKING AND CUTTING. - 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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COMMONS’ DEBATE, 24th APRIL 1809. PACKING AND CUTTING.
Abuses touched upon—Packing and Cutting.
The 24th of April 1809 forms a new era in the history of this art.
Of the state of this branch of business, a corner is now unrolled before St. Stephen:—the eyes of the saint, as in these cases must sometimes happen, especially if the cry be loud and troublesome, half open themselves to the abuse: but then immediately, as usual, close upon it.
Up stands Mr. Whitbread, and more or less light is thrown upon parts, or supposed parts, of judicial practice:—
1. Package of jurors, viz. in the offices which we have seen established for that purpose.
2. Bribery of do, doubled: double guineas substituted to single ones.
3. Unobsequious jurors dropped; or, in the fashionable and familiar phrase, cut.
4. Where, under the name of the Crown, the firm of Judge and Co. is party, double fees to Judge and Co.—at whose expense need not be said.
Package—a complex process, in which, properly speaking, the operation of cutting is included—this, being the very thing in question, will, together with cutting, afford two sections to this present chapter: double feeing—an operation in some respects included under package, in others distinct from it, but in all respects connected with it, claims a chapter to itself.
On this occasion, amidst the uncertainties to which newspaper-reporting is liable, one thing seems pretty clear, viz. that, in respect of depth and extent, the nature of the mischief was misconceived:—misconceived and under-rated by the honourable gentleman, by whose public spirit the matter was thus brought forward:—“That the master of the crown-office should have in his discretion the nomination of juries,”—this is what to him appeared—as well it might appear—“a great hardship.” Of the state of things thus spoken of, the description thus given is thus far correct. But when the mode in which the effect is brought about comes to be spoken of, there it is that the description fails: “Of the persons summoned on the pannel, such names passed over as he thinks fit, without calling them on their fines, upon the mere plea that they could not attend, and retaining such names as he thought fit. . . . .”* To apply a detailed correction to the several mistakes contained in this part of the statement, would, after what has been said in the two former parts of this work, be a useless operation: the general result is clear enough; viz. that it is by a fraudulent contrivance, and that such a one as requires to be renewed on each individual occasion—by irregular practice in fraud of the law, and not by the law itself, as constituted by the avowed and regular practice of judges—that the “nomination” and nullification of these supposed and pretended checks upon the despotism of judges is effected.
Of these errors the origin appears sufficiently obvious. Though in several points not conformable to the view given of the case by Sir Richard Phillips, there remains conformity enough to render it probable, that it is from his representation of the matter, as given in his book, that that of the honourable gentleman was taken. I mean the “passing over”—and “upon the mere plea that they could not attend”—and so forth. By this the conception conveyed (we see) is—that, taken in its totality, the gross list comes into the master’s hands from some other quarter: and that all that it is in his power to do is—to cause to be discarded out of it this or that individual; and that even that cannot be done in any case, without a fresh as well as false pretence: whereas, as we have seen over and over again, the truth is—that, of the persons whose names are put upon this gross list, every individual, without exception, is constantly and regularly chosen by him, and that if, for ridding it of this or that obnoxious individual, any such pretence should happen to be necessary, it is not by him, by that officer, who is regular course nominates whom he pleases, that any such falsehood need be, or indeed could consistently be, averred.
As to Sir Richard Phillips, happily for the public he neither was, nor ever had been, a lawyer: on the particular occasion in question, he plunged not—time would not have suffered him to have plunged—into any such fœtid mass of dead letter, as the labyrinth composed of the books of practice. He did—what in his place every non-lawyer would have felt the necessity of doing—he betook himself to the living oracles of the law, such as were within his reach; and what their responses were has been seen in another place: the point here in question is of the number of those which may there be seen involved by them in some of their gilded clouds.
To what purpose these two paragraphs? to serve as a critique upon a newspaper?—No: but to show that the real complexion of the ulcer is far more angry than that which it then presented to the eye of the honourable gentleman: that the real depth of it had not then been sounded by him: and that it continues to call, and with increased energy, for the renewed and more serious exertions of his healing, but in the first place of his probing, hand.
Had it not been for irregularities, as we have seen—some but supposed, others, as we shall see, real—the subject, as far as upon the face of this report it appears, would never have received a visit from those experienced eyes, which reflect so much useful light on every subject on which they fix. For this, wherever law is concerned, is the general error: ascribing whatever is amiss—not to regular practice, but to irregularities: not to the system, but to A or B, to whom on this or that occasion it happens to be acting under it. This is the grand error of errors—supposing regular practice to have had not only justice, but justice alone, for its object; whereas it never has had justice for any part of its object, nor, in the nature of men and things, circumstanced as judges have been, ever could have had.
On the subject of cutting and being cut, up rises Mr. Marryat, and speaks of one person, viz. himself, to whom, after verdicts given against the crown, no such accident had happened; and there the evidence, or at least the report, as above given of it, stops.* But, stopping there, it proves nothing. It has already been stated (Part I. Chap. IV. §4,) that verdicts after verdicts may be given against the crown, and to every officer that ever calls himself the crown, the event of the cause be, personally speaking, a matter of indifference. On a question of revenue, where is the chancellor of the exchequer—where is the solicitor of the treasury, customs, excise, stamps, assessed taxes, or any other board, who, any more that the honourable gentleman himself, would wish for a verdict against evidence?
Up already had arisen Mr. Attorney-general: and here, in the person of this great law-officer, may be seen the prudence of the serpent hiding itself under the simplicity of the dove:—“With respect to the partial summoning of jurors, as he himself did not summon them, he would not” (says the report) “undertake to say anything of the fact from his own knowledge.” As to summoning, that must have been the mistake of the reporter: summoning could never have been the word of the great law-officer. As to great law-officers, what may happen to their science is—as to mere matters of fact, to put on the mask of ignorance: what never happens to it, is—to misapply law words. Nominating is the word, as well as the practice, here: and to the great law-officer in question, most assuredly it never had happened to nominate, any more than summon, a single juror in the whole course of his life. But, of the seven offices belonging to the three courts, there is not one but what has its officer (already designated so often by the name of the master packer,) by whom this nomination, as so often mentioned, is regularly and avowedly performed: nor is there more than one, if so much as one there be, that has not its book or books of practice, in which this nomination is regularly mentioned as being so performed.
If the practice of the courts in which they practise, and the books in which that practice is delineated, be to such a degree a secret to great law-officers, can it be wondered that they should be equally so to lay-gents, such as sheriffs and members of parliament?
So much for ignorance: the quality of the person considered, I should have said nescience: nescience, the cause or accompaniment of so amiable a quality as simplicity. We come now to confidence, the result and fruit of it.
“But he was confident” (continues the reporter,) “that any officer of the court, who would venture on such a practice, would certainly lose his place.” Thus far the great law-officer.
For my part, the confidence of which my ignorance has been productive, is as strong as his can possibly have been: it is, however, of a nature exactly opposite. In each of the seven offices there is but one officer, by whom (unless it be, as we have seen, by his deputy, (See Part I. Ch. VIII. p. 101,) jurors are nominated;—(I should have said, or are supposed to be nominated;) and he (as we have seen) is the officer, who, by whatever other titles designated to other purposes, is to this purpose commonly styled the master. But, were there a hundred of them, there is not one, who, for any such practice as the practice here, though improperly, designated under the name of “a partial summoning”—say partial nomination—of jurors, could by any possibility be made to “lose his place.” The nature of the case does not admit of it: the very nature of the case—unless any such odd accident should happen to the officer as that of having an Italian epigram, ready cocked, which he wants to bring down a reformer with—the very nature of the case, as we have seen, excludes all evidence. Stiles, Esquire, for example, is among those nominated by the master in Easter term: said Esquire is not among those nominated by said master in Trinity term. Make what addition you please to the number of terms, during which poor Mr. Stiles sees himself not nominated,—what is there in all this to make the master, or anybody else, “lose his place?” Not that, if the place could be lost, it would be any such great person as a master—it would be (as we have seen) some scape-goat or other in the shape of a clerk, that would be sacrificed upon the altar of official prudence.
No:—this is the grand use and exquisite contrivance of corruption in this shape: viz. that, be it ever so corrupt, it is impossible to punish it—aye, or so much as to point suspicion to it. Pleasant conceit indeed! A master lose his place! In any court of common law, from the days of Lord Coke—aye, or of “the English Justinian,” Edward the First—did the great law-officer ever hear of so much as a single case, in which, for mal-practice, in this or any other shape, any such personage as a master ever “lost his place?”—did he ever hear of so much as the rumour of any such case, to form a ground, or so much as a colour, for such confidence?
No: this is not the way that alma mater lex deals with her own children. Ah! fie upon it, darling! Dear child, you must not do so any more! Do what mischief they will, this is the very worst they ever hear from her, if on any such occasion, even in an age, or any number of ages, it ever happens to them to hear anything. Let him look to the statute of Hen. VI., 10 Hen. VI. c. 4, and see 32 Hen. VIII. c. 30, 2 and 3 Ed. VI. c. 32, and 18 El. c. 14. Masters, and their brother officers, with the assistance of feigned plaintiffs of their own feigning, outlawing men by wholesale—taking all this trouble, and to no other purpose than that of seizing their estates, and distributing the produce in the shape of rewards for merit: for learned merit, displayed in these same offices by these same acts. Parliament takes up the matter, and what does it? It passes an act, saying to all these learned persons—“Go and do so no more.”
A master lose his place indeed! What! a place that he had purchased—purchased outright—of a chief judge! What, if such a thing were to happen, would be the worth of any of these masters’ places, not to speak of judges’? Lord Arden, the Earl of Buckinghamshire, the Earl of Hardwicke, Lord Kenyon, Sir William Scott, Mr. Perceval, Lord Erskine, Lord Redesdale, the pair of Honourable Knoxes, the pair of Lord Seymours, Lord Manners, Lord Eldon, and above all Lords, Lord Ellenborough—could it rationally be supposed, that these or any other illustrious persons concerned, whether in the character either of incumbents or of patrons, past, present, or future contingent, in the security of official situations, would suffer, especially if non-feasance were to be taken as a cause of forfeiture, any such injustice to take place? Where then would be their Lordships’ plighted faith—the virtually and virtuously plighted faith: plighted by learned Lordships to fair purchasers?
[* ]Words of the report of that part of Mr. Whitbread’s speech, as given in the Times newspaper of the 24th of April 1809:—“He thought it, for instance, a great hardship, that the master of the crown-office should have in his discretion the nomination of juries, by passing over the names of such persons summoned on the pannel as he thought fit, without calling them on their fines, upon the mere plea that they could not attend, and retaining such names as he thought fit.”
[* ]Mr. Whitbread, as per Times.] “Another practice he understood to prevail was—that special jurymen, who had been summoned over and over again, if ever they found a verdict against the crown, it somehow or other, happened, they were never summoned afterwards.