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CHAPTER II.: DOUBLE-FEE ABUSE, PLAIN AND EMBROIDERED. - 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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DOUBLE-FEE ABUSE, PLAIN AND EMBROIDERED.
Ground and Embroidery explained.
The distinction requires explanation; and explanation shall be given to it.
Double-fee abuse plain—(or, as but for the apparent contradiction, it might have been called, simple)—mere waste of public money—nothing worse.
Embroidery to the abuse, corruption of jurors, and contempt of parliament:—in a particular case, the wasted money, the second of two guineas, receiving so particular an application as to operate, in the character of a portion of the matter of corruption, upon a certain class of jurors: and this in defiance of an act of parliament, viz. of a clause (24 Geo. II. c. 18, § 2) made for the express purpose of fixing upon one guinea—and that not as the regular fee, but as the very greatest fee, that, by jurors of that description, shall, in any case, be received.*
From the several crown solicitors, attached to the several boards, double-fees to the law officers: viz. to the officers in the several offices belonging to the several courts of justice which they have to deal with:—judges, in their own persons, included or not included; in the persons of their officers, whose fees they pocket, or derive a profit from in other shapes, included beyond doubt. And here we see the plain and simple abuse.
From the same hands, to each special juryman, where the verdict in which he has concurred has been in favour of the crown, an extra guinea: where it has been in favour of the party, no more than the one guinea: the extra guinea being given in the teeth of the act, which forbids the giving more than one: and here we see, combined in one rich mass of embroidery, the corruption applied to jurors, and the contempt put upon parliament.
Double-fee Abuse, plain:—mere Waste.
But for the embroidery of which it forms the ground, and for the explanation of which the mention of it is necessary, the plain abuse—the mere waste of public money—would scarce be deemed worth a word or a thought anywhere: nor indeed would it be in its place here.
As to our great law-officer, whom we shall presently behold breaking out into a burst of “virtuous indignation, rising even to abhorrence,” he had none to spare for a practice so excusable, or rather so meritorious, as that of applying double-fees in the shape of rewards of merit, to merit personified in the persons of law officers. To these law-officers—officers, the profits of whose offices find their way in so ample a proportion into the pockets of noble and learned tenants for life, whose remaindermen are great law-officers. To this charge we have nothing but his silence; nor need anything more be desired considering the admission it involves.
Thus much, then, is established: viz. that it is become regular practice for the Lords of the Treasury, in every cause instituted by a crown solicitor under their direction, to give out of the taxes to every law-officer twice as much as according to a rate settled by those whose interest it was to raise it as high as possible—twice as much as, even to an estimate thus exaggerated, his services are worth: including, in every instance of an office executed by deputy, the fee of the principal, by whom the reward is pocketed, without the expense of service.
A list of the law-offices and law-officers thus remunerated would, in one way or other, be instructive.
The admission might have been as express as words could make it, for any thing that any body could have had to fear from it.
When a tax has been called a tax, John Bull has now and then been heard to grumble. Call the tax a fee, he is satisfied: so as the contribution be but imposed by the men by whom it is pocketed, pocketed by the men by whom it is imposed, Blackstone’s motto is John Bull’s—“every thing is as it should be.” But, if the imposers are judges, and the persons on whom it is imposed are those children of affliction called suitors—patients with emptiness in their pockets, and perpetual blisters on their mind—then it is that he is not barely contented, he is delighted: he cries “litigation is checked:” some men not being able, others not willing, to see, that in this way, wherever there exists a man, rich as well as wicked enough to purchase the power of oppression thus offered him for sale, it is only the honest and injured litigant, or he who, if the ability were left him, would be litigant, that is thus checked, and that the dishonest litigant is instigated, supported, armed, by this most mischievous of all taxes; every fee exacted from the other side being an instrument of oppression put into his hands.
Embroidery—Corruption of Jurors, Contempt of Parliament.
We now come to the abuse in which the indignation of the great law-officer saw its proper and safe mark: an abuse of former times, supposed to have vanished with the times.
“Further,” says the report, speaking of Mr. Whitbread,—“further he was informed, that when a special jury found a verdict for the crown, it was usual to pay each man two guineas; where their verdict was against the crown, they received but one guinea per man.” Here we see the charge. Come we now to the great law-officer, and his answer:
“Mr. Attorney-general,” says the report, “in reference to Mr. Whitbread’s assertion, respecting the two guineas given to special jurymen in cases of verdict against the crown . . . . [and the usage of discontinuing to summon special jurors who should once give a verdict against the crown] utterly denied the existence of such practices in any of the courts within his memory.”
So far the great law-officer. As to the passage included in brackets, it is thus distinguished, on the presumption that, so far as concerns this practice, the supposition of an utter denial must, for the reasons already given (Chap. I. § 3,) have been a mistake.
“He believes, indeed,” continues the report, “the former practice did sometimes take place, many years since, in the court of Exchequer; but had never occurred for a great number of years, and it was a practice which he abhorred, as disgraceful to the administration of justice.”
And so there was really a time when corruption in this shape was in use? And this corruption applied to the very class of persons—to the very class of jurors—which there has been such abundant occasion here to speak of: the very jurors concerned, “deeply concerned” in “the guinea-trade?” And the corruption had not, as in the case of double fees to law-officers (meaning, we may presume, all the law-officers without distinction, and upon all occasions) the praise of regularity for a cover to it? No:—it was given to them or kept back from them, according as they had behaved—according as they had or had not earned it.
As to the court in which this “abhorred” and “disgraceful practice” was so recently in use, it is the court of Exchequer—that very court, in which, in the opinion of the pre-eminently learned manager himself, things go on (as we have seen) so well—so “well”—that the idea of making them go on “better” is treated by him as something worse than needless. It is the very court in which recruits for this service are received and trained, and their “characters” if not put on record, had in “remembrance” at least, for other services.
And this practice, thus “abhorred” by the Attorney-general as “disgraceful to the administration of justice,” how came it in the court of Exchequer, or in any court calling itself a court of justice, ever, and so recently too, to have place? And supposing it not to have place to-day, is there anything, and what, to prevent its having place again to-morrow? Whatsoever the causes may be, is there any thing unreasonable in the supposition, that the same causes may at any time be productive of the same effects? Not that any such renewal presents itself as a very probable occurrence: for the grand object, viz. dependence—complete and absolute dependence—being by this time so effectually secured, as it appears to have been, and in so snug and quiet a way, corruption in any such barefaced shape would be altogether needless; and the danger of and from exposure, remote as it would however be, is more than, by learned prudence, would, when unsweetened by any ulterior advantage, be incurred.
Thus much for the corruption. But in the corruption, bad as it is, we do not by any means see the worst part of the business.
The worst part of the business is the contempt—the open contempt put upon parliament: disobedience, such as it is impossible should not have been wilful, manifested as towards one of its recent laws. Here we see the axe laid to the very root of government: and by what hands? Not by jacobins and levellers—not by men who meet at taverns, and get up upon tables; but by the very husbandmen themselves—the very nursery-men, by whom Mr. Reeves’s tree—(the tree that was so near falling upon his head, and without falling on it prepared it for so many good plaisters)—the very nursery-men by whom that nutritious and umbrageous sugar-tree ought to have been nursed, and who are so well paid for nursing it.
But of this most serious state offence—this dissolution-threatening offence—in comparison of which so ordinary and regular an offence as corruption shews, in the eye of a really loyal subject, but as a peccadillo, more will be said in another place. (See Part IV. Chap. III.) Be it meantime remembered, that the fact is established.
Other facts, not altogether devoid of importance, remain to be affirmed or disaffirmed by inquiry and evidence.
By what hand was it that the bribery guinea—the additional and prohibited guinea—was put into the ready hand of the Exchequer guinea-men, in despite of the statute? This is a question, the answer to which, but for form’s sake, needs no evidence. That of the solicitor, of the board whichever it was, under the orders of which the prosecution was, in each instance, ordered.
Two other questions:—The master packer, and the master packer’s master—the deputy remembrancer, and the Lord Chief Baron—were they respectively apprized of it?
At what time was it that this “abhorred” practice did sometimes take place—how many were these “many years since” it was known to do so?
In whose chief baronship was it? In that of Eyre—in that of Skinner—in that of Smyth?—or in any part of the thirty years presidency of the old attorney, knighted and made honest—as honest as to an English judge it is possible to be—by the title of Sir Thomas Parker? Or was it at any time under the presidency of the present Lord Chief Baron, of whose services in that high station the country has had the benefit now for above these sixteen years:* if yes, whether it has been with his privity that any particular individual instance of this practice has taken place, and whether this has been among the means employed by him for the attainment of the object so effectually accomplished, and so solicitously defended?†
These are among the “secrets” which may perhaps present themselves as “worth knowing,” whensoever Mr. Whitbread, refreshed by a summer recess, shall feel himself sufficiently refreshed to return to the charge; to return to the charge, and by one pull more—one pull, sufficient in length as well as strength, drag them completely and effectually out of the den of Cacus.
Should it ever happen to the great law-officer, on any future occasion to get up, and come out with a speech of a mixed nature such as the above, composed of part argument, and part evidence, Mr. Whitbread, or whosoever on any such occasion may occupy his place, will perceive, I am inclined to think, the use and propriety of decomposing such speech, and resolving it into those its component elements. As to the argument, it need not give him much trouble: that may be left to answer itself. But the evidence is quite another thing: here he will see the use and necessity of that useful operation called cross-examination. I don’t mean, that even upon the great law-officer himself, it should be performed in his own mode: of that it would surely be better to leave the monopoly in his own hands. I don’t mean, that he should be called “the greatest fool that ever walked over earth” with or “without a keeper.”‡ I don’t mean, that he should be examined for no other purpose than to expose to contempt the witness, nor with any other effect than to expose to the same fate the examiner and the judge: the examiner who makes such examinations, and the judge who suffers them. What I mean is, that he should be examined—cross-examined—in whatever mode may happen to be best adapted to the getting out the truth:—which surely will be a very different mode.
[* ]Simple dissipation abuse.—Mr. Whitbread, as per Times.] “Another practice he understood to be uniform with courts; namely, that the crown always paid to the officers double fees.”
[* ]Ever since 12th February 1793.
[† ]Turn to Palmer on Costs, pp. 175, 180. In a bill of costs, exhibited throughout in the character of a real bill—not a feigned exemplification of a bill—name of the cause, The King against W., scire facias in the Petty Bag (common-law side) in the Court of Chancery, may be seen a charge of £25 : 4s. This makes exactly the two guineas a-piece, stated as having been given to the special jury. Mr. Law (now Lord Ellenborough) is stated as having been one of the counsel in the cause: the others being Mr. Erskine (now Lord Erskine) Mr. Mingay, and Mr. Garrow. Mr. Law, as being of the special pleading class, may be seen to have been more frequently consulted with than any of those other learned persons. This bill of costs having, for the purpose of taxation, passed of course under the review of the master (the master packer,) here we see a particular example of the open contempt put upon the act above mentioned—(24 Geo. II. c. 18, § 2)—by which the giving or taking more than one guinea stands prohibited, as we have seen, in the most pointed terms. Of the individual instance of contempt thus accidentally laid open to view, the date is in the year 1785.
[‡ ]“Attorney-general . . . . First we have Sir Richard Phillips, who has given us evidence of his being either one of the greatest fools that ever lived under the sun, or that he is not to be credited on his oath. I say it appears from his own testimony, either that he has given us false evidence, or that he is the greatest fool that ever walked upon the face of the earth without a guide.
[* ]The following are the chief alterations made, and suggested from authority, on the practice of choosing special juries, since the work was published:—By 6 Geo. IV. c. 50 (22d June 1825,) the laws as to juries in England were consolidated, and the statutes enumerated in p. 76 3 Geo. II. c. 25; 4 Geo. II. c. 7; 6 Geo. II. c. 37; 24 Geo. II. c. 18; and 29 Geo. II. c. 19, repealed, so far as they concerned the subject. By § 31, every man described in the juror’s book as an esquire, or person of higher degree, or as a banker or merchant, is qualified and liable to serve as a special juror. All such persons are to be described in a separate alphabetical list subjoined to the jurors’ book, called “The Special Jurors’ List.” The names being numbered in their alphabetical order, the “numbers are to be written upon distinct pieces of parchment or card, being all as nearly as may be of equal size,” and deposited in a separate drawer or box. By § 32, when a special jury is struck, in the presence of the parties or their attorneys (if they choose to attend,) the slips containing the numbers are put into a box, and atter being shaken together, drawn out, one after another, to the number of 48, the name attached to the corresponding number in the special jurors’ list being read aloud as each number is drawn. If, on the reading of a name, either party or his attorney object that the man is incapacitated, on proof, he will be set aside, and another drawn in his place. If the whole number of 48 cannot be supplied from the special jurors’ list, the general jurors’ book is to be resorted to as formerly. Parties are supplied with a list of the 48 names, with the respective places of abode, and additions, and are allowed to strike off twelve names each as formerly, the remaining 24 being returned upon the pannel. By § 33, parties may consent to the nomination of a jury in the manner formerly in use.