Front Page Titles (by Subject) PART IV.—: REMEDIES PROPOSED. * - The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)
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PART IV.—: REMEDIES PROPOSED. * - 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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HUMBLE PROPOSAL FOR RESTORING THE CONSTITUTION IN REGARD TO JURIES.
Introduction—Necessity of a Change in the System.
In the course of this inquiry, two dangerous diseases have necessarily and continually been brought to view:—1. A rottenness in one of the most important organs of the body politic, viz. jury-trial; 2. A sort of weakness about the head, having for its symptoms, on the part of judges and other subordinate members of government, a confirmed, habitual, and scarcely disguised contempt, as towards the authority of the legislature.
The existence of the disease having, in both instances, been brought to view, next comes the more immediately beneficial task, but for which that unpleasant one would never have been undertaken, viz. the indication of the proper remedy.
In this chapter will be proposed, what presents itself as proper to be done, in regard to juries.
That within the sheriffwick of the sheriffs of London and Middlesex, the institution of special juries, composed as at present, ought to be abolished—is supposed to have already been sufficiently demonstrated. If so, the consequence is—that within this district some different system will require to be set on foot. But, forasmuch as the establishing in one particular district, though it be the district of the metropolis, a system different from what is in use in the greater part of the kingdom, might, by infusing additional complication into a system of judicature already so overloaded with complication, be productive of preponderate inconvenience; hence we are led to the consideration of some plan which, being grounded on principles universally applicable, may itself be susceptible of an application equally universal, without preponderant inconvenience.
The remedy here ventured to be proposed is styled without scruple a restorative: a plan for the restoring, for the purpose of jury-trial, the original composition of juries. Not that the plan is such in exact tenor and detail: for, if it were, it could not be such in principle and effect.*
All political institutions would be exposed to deterioration, were it even by the mere change of circumstances: and if, where the change of circumstances is become material and extensive, the original constitution is left unchanged in detail, the consequence is—that, howsoever in words and outward show it may be the same, it is become in substance and effect, in a proportionable degree, different. Nor yet would I have it thought, that in my vocabulary old is synonymous to good, or better, as in some vocabularies we have seen it, synonymous to not so good or bad. Be the state of things ever so good, to render them still better is, in my view of the matter, a good operation, not a bad one: the contrary opinion I leave to those in whose eyes the praise of letting off an old epigram is better worth than the consciousness of having rendered, or the endeavour to render, a public service.
Accordingly, in the endeavour to bring about a restoration of the jury system in principle, I have not in detail neglected the opportunity of endeavouring to put it, for the future, into a state as much superior as possible to any state it ever was in before.
As to the existing special jury system, my real quarrel with it is—not that it is a different one from the original jury system, but that, in comparison with it, it is a bad one.
Interests to be provided for—Objects to be aimed at.
For remedy to the disorders in question, before we enter upon the task of suggesting particular arrangements, it may be of use to have before us a distinct intimation of the several interests requiring to be provided for, and, for the purpose of such provision, of the several objects or ends requisite to be kept in view and aimed at—viz. in the framing of a plan for the composition of jurors, the selection of the jurors, and the compensation, if any, to be made to them for their labour, loss of time, and expense.
The interests concerned are, in the first place, those of the suitors or parties on both sides of the cause; in the next place, those of the jurors themselves.
It is for the sake of the interests of the parties in each cause,—or rather of such party or parties as are in the right, viz. in so far as he or they are in the right,—that it becomes an object with the legislator, to make such provision as the nature of the case admits of, for securing, on the part of jurors, such degree of relative aptitude, in all points, intellectual as well as moral, as shall render the general tenor of their decisions as conformable as possible to the ends of justice.
Follows a brief intimation of these objects, ranged under three general heads:—
I. Objects referable to the head of probity or moral aptitude.
1. Preserving jurors as effectually as possible from exposure to the action of such sinister influence as is liable to be exercised by, or to emane from persons in power; and more particularly by or from the presiding and directing judge or judges, as above.
2. Preserving them, as above, from such sinister influence, in the shape of intimidation, corruption, or partiality, as is liable to be exercised by, or to emane from individuals or classes of men, in the character whether of parties or of persons having in any other way an interest in the event of each respective cause.
II. Objects referable to the head of intellectual aptitude.
3. In a judicatory so composed, providing, upon occasion, a degree of extra-aptitude, in respect of intellectual qualifications; viz. in consideration of, and in proportion to, any degree of extra-difficulty attached to this or that particular cause.
4.—or in consideration of, and in proportion to, any degree of extra-importance.
III. Objects having respect to the interests of the jurors themselves.
5. Reducing to its minimum the quantity of vexation and expense attached to judicial service in this line.
6. Providing compensation for such portion of vexation and expense as cannot be avoided without preponderant inconvenience: viz. without preponderant prejudice to the main object above mentioned.
Arrangements proposed:—1. In Common Jury Causes, mix Gentlemen with Yeomen.
Here follows a slight sketch of the arrangements that present themselves, as promising to be conducive to the attainment of the above objects: in case of conflict, regard being had all along to their respective degrees of importance, absolute and comparative:—
1. The distinction between common and special jurymen to be still preserved. The object aimed at by this arrangement is—provision for intellectual aptitude.
2. In ordinary or common jury cases—i. e. in those cases in which at present the jurors are all of them of the class of common jurymen (say, for distinction, yeomen jurymen)—let some one or two of the class of special jurymen (say, for distinction, gentlemen jurymen) be regularly inserted into each jury.—Object, intellectual aptitude—viz. under the expectation, that, for the benefit of justice, the influence of understanding upon understanding will exercise itself, of course, upon the less-informed class, by the instrumentality of the better-informed.
3. Number of gentlemen jurors, not more than one or two. The interest provided for by this restriction is that of jurors.—Object, avoidance of unnecessary vexation and expense: viz. of vexation and expense, by reason of attendance; viz. on the part of an overproportion of jurors of this class.
4. The district in which the gentlemen jurors are taken, let it be a district as remote as on other accounts will be consistent with convenience, from the district in which the yeomen jurymen are taken.—Object, providing for moral aptitude on the part of yeomen jurors, viz. by preserving them from being subjected to sinister influence—viz. to influence of will over will—whether in the shape of intimidation, or in the shape of corruption—emanating from gentlemen jurors. At the hands of the gentlemen juros—of the men of superior education—the salutary species of influence—viz. the influence of understanding over understanding—of opinion on opinion—is looked for and desired. The use of the distance proposed, is—to serve as a bar to the exercise of will over will. To men of the yeomen class—to shopkeepers, handicrafts, &c. living in the same neighbourhood with the gentleman, it might frequently happen to view in his supposed disposition towards them a source of hope or fear. By distance, this source of corruption would be cut off.*
Arrangements continued—2. Special Juries, half-and-half.
Power to any party, on either side, to cause to be substituted to the common jury composed as above, a half-and-half jury;†viz. a jury—not composed of all gentlemen, as in the case of the special jury constituted as at present—but containing any number of gentlemen not exceeding half: viz. out of twelve, six.
The interest thus endeavoured to be served is, of course, that of the suitors: the objects endeavoured to be secured, are, in the first place, by the enlargement of the number of the gentlemen jurors, intellectual aptitude: viz. by adding to the chance of finding a juryman qualified in an extra degree for taking the lead, and guiding the decision: in the next place, by the restriction put upon the number of the jurymen of that class, moral aptitude: viz. by preventing the preponderance of partiality as between rank and rank.
Of the sort of mixture here proposed, the importance is such as seems to claim a particular degree of development. In every species of judicatory without exception, but in a more pre-eminent degree in every judicatory of which a jury forms a part, of all imaginable causes of misdecision, what is commonly understood by the term partiality is that which the legislator finds greatest difficulty in coping with. Wheresoever the nature of the influence—the sinister influence—supposes two parties—one acting, the other acted on—his task is comparatively an easy one. All that in that case he has to do, is—to keep them from coming together: and, with a moderate degree of probity, exertion, and intelligence, how easy that is, may have been seen already.
But the case of partiality supposes not any such parties: it supposes not any tempter from without. The tempter dwells within—within the very bosom of this occasional judge; and, being there, in vain would legislators dislodge him: he bids defiance to their utmost efforts.
Religion or politics—it, by the nature of the case, any such cause of dissension happens to be called forth—called forth in such manner as to excite, in the bosoms of any of the jurors, sentiments—whether of sympathy or antipathy—in relation to the parties on each or either side—against this source of partial affection—of corrupt affection (as, even though there be no corruptor, it may be styled)—against this source of misdecision, all that in the station of the legislator can be done by human wisdom is here without avail: in this shape, corruption may have established in a man’s bosom ever so complete an empire—there it must reign, and reign uncontrouled: you can never punish it, for you can never prove it.
Among jurymen, a possible, and not unnatural, source of partiality, on either or both sides of a cause, and thence of dissension, is that of which difference of rank and station in life is the instrument.
With partiality and dissension in this shape, the proposed half-and-half jury, as well as any other jury, stands exposed to be infected: and indeed, by the nature of its constitution and composition, may appear, and not altogether without reason, to be exposed to that accident in a particular degree. But while it contains in itself the seeds of the disease, it furnishes at the same time a remedy;—a remedy—such an one as cannot in any other mode be supplied.
Take, for example, a case, such as, in the country at least, where there is no guinea-corps, is frequently exemplified—a special jury, with a deficiency in it made up by yeomen: by common jurymen, in the character of talesmen. Suppose, as between a gentleman and a yeoman, a cause so circumstanced as to awake, in the bosoms of these different parts of the population of the jury-box—to awaken, and to excite, to a degree of excitation fatal to justice, the passions and partialities congenial to their respective stations. In this case, let there be seven gentlemen to five yeomen the gentleman carries it. But—suppose six and six, as under the proposed constitution will constantly be the case—in this case, partiality may reign without opposition in eleven bosoms, so as one of the twelve, even though it be but one, be the seat of cool and impartial justice: he who has right on his side, be he gentleman or yeoman, gains the cause.
Of the proposed provision, by which the number of gentlemen jurymen even on a special jury is limited to half the whole number, viz. to six out of the twelve, the expected use is as follows:—In ordinary cases, for the purpose of guidance, by means of intellectual aptitude, one or at most two, was, as above, (§ 3) regarded as sufficient. For this same purpose, the additional chance, afforded by the substitution of six to two or one, may, it is supposed, be regarded as amply sufficient, even in any the most extraordinary cases.
As to the case of a contention between opposite classical partialities, a case of this sort, it is hoped and supposed, will, comparatively speaking, be a rare one. But, that it should now and then find itself exemplified, is no more than what ought to be expected, and provided against accordingly.
Here, then, comes in an occasion, for applying to this case that beautiful feature of jury-trial, which, by the use thus proposed to be made of it, can scarcely fail to have been already presented to the reader’s notice: that no less politic than generous arrangement, contrived by the genius of some now forgotten statesman, for the protection of foreigners against those adverse interests and antipathies, which are so unhappily apt to have place in the bosoms of natives.
A mind in which virtue in both her forms moral and intellectual, shines thus bright can hardly have been that of a lawyer. In matters of foreign politics—of political economy—in every branch of knowledge not immediately conducive to the advancement of their own personal or professional interests, the breasts of lawyers, especially in the “highest situations,” are, even in these comparatively enlightened times, among the most noted tabernacles of ignorance: of ignorance and of that error which, when accompanied with the degree of presumption so natural to such situations, is so much worse and more mischievous than simple ignorance.
When, for the benefit of foreigners, the half-and-half jury was introduced, it was not confined to the cases called civil cases: nor among cases called criminal, to those of inferior importance: it covered the whole field of jury-trial.
As to special-jury trial, slid in by lawyers for the advancement of their own interests, and accordingly as it were by stealth, introduced by them, as we have seen, in pursuit of those two grand sinister objects, increase of power and profit to themselves, they neither dared nor cared to give it any such all-comprehensive range.
But, if needful for causes of property, and in the case of offences comparatively trivial, how much more needful must it not be in causes which, to the individuals at least whose station is on the defendant’s side, are of the very highest importance—causes of life and death?
A principle which, in expectation of the superiority of intelligence expected from superiority of rank, gives up the reins without controul, to every prejudice and every partiality, with which it can happen to that intellectual superiority to be accompanied, is rotten at the core.
Argument against and for a half-and-half jury as a substitute to the existing special jury.—Dialogue between a Gentleman and a Yeoman.
Gentleman.—We are in possession of having a jury of our own sort at pleasure: that possession we claim to have preserved to us.
Yeoman.—More shame for you. On no principle, either of natural justice, or of the English constitution, can you defend this so recently usurped advantage.
As to us, so moderate is our claim, that, with that equality of numbers, which is all we ask for, the advantage, in any contest between you and us, would still be most decidedly on your side.
On your side is the superiority of intellectual force in all its shapes:—knowledge, address, habit of taking the lead.
On your side is the whole force of that influence which exerts itself on the understanding. On your side is every element of what is called respectability: education, opulence, power, rank, connexion. On no other occasion does this your superiority ever find you backward in the assertion of it: asserting it on every other occasion, and to every other purpose—on this occasion alone, to this purpose alone, you will not surely take upon you to deny it.
On your side is the whole force of that still more irresistible influence, which by will is exerted over will. To your class, our’s looks up—looks up with hope—for employment, custom, protection, everything: your’s to our’s, for nothing. From your class, our’s has everything to fear; your’s from our’s, nothing. Without any the slightest ground, or so much as a pretence, a man of your class has but to bring an action against one of our’s—or if an action be not oppressive enough, to file a bill against him—his ruin follows of course. This is what we are indebted for, both of us, to your good friends, the lawyers. I say yours: for your’s they are as against us; and your’s they would be, if they were any body’s.
But, to come to the point at once. Can you seriously think, and seriously take upon you to say, that, in case of difference, six of us can, in general, have as good a chance of persuading six of you, as six of you of persuading six of us?
What we not merely consent to, but propose and desire, is—that in ordinary cases—in all cases but those in which this proposed equality of numbers happens to be insisted on, there should be some two or one at least of you, for our guidance:—so far is this claim on our part from having for its principle any sentiment of hostility towards you—any sentiment inconsistent with cordiality, respect, and deference. As to confidence, unbounded confidence, it is more than human nature can ever, in the instance of any individual, much more in any large class of individuals, lay claim to, with any colour of reason or justice: and with political liberty, in any shape or degree whatsoever, it is utterly incompatible.
Arrangements continued—3. Compensation-money to Jurymen.
1. In the allowance to jurymen, distinguish two parts: one for demurrage, viz. at the place of trial; the other for journeys, viz. thither and back: demurrage-money the same to all: journey-money proportioned to the distance between the place of trial, and each juryman’s place of residence, and rated at so much a mile.
2. To save calculation, and prevent disputes, after taking, in each parish, a particular spot—say the site of the parish church—for the mark, let the distances of the several parisbes from the place of trial be previously ascertained, once for all, and, in the form of a table, written or printed, kept hung up in the court; and also in the office, in which payment is made to the jurymen.
3. For demurrage, let the allowance to each juryman be so much a-day for the whole time of his necessary stay: and without regard to the number of causes in which it may have happened to him to serve: the amount being pre-appointed, viz. by a general regulation, having for its object the fixing it at whatever sum is regarded as being at that time and place necessary and sufficient for the maintenance of a juryman of the yeomen class: which fixation may consequently, in respect of the change in the value of money, require amendment from time to time.*
4. Let the allowance be neither more nor less to gentlemen than to yeomen jurymen.
For, if to the gentleman the expense of attendance will naturally be greater than to the yeoman, it is because in general the gentleman, in respect of his superior opulence, is better able to afford it.
True it is, that the rank of the gentleman is not exempt from indigence: understand, casual and relative indigence. But neither is that of the yeoman: and surely it is in the worst-provided class that the degree of indigence, and consequent suffering, is capable of being most acute.*
Arrangements continued—4. Fund, on which the Compensation-money shall be charged.
1. As well in ordinary or common jury causes, (viz. where, by the supposition, no more than one or two gentlemen are upon the jury,) as in extraordinary or special-jury causes, where (also by the supposition) as many gentlemen as yeomen are upon the jury, let the expense of the above proposed compensation-money (say jury-money) be borne—not by the suitor on either side, but by the public at large:—viz. by being added to the county-rates:—unless, for this particular purpose alone, it were worth while to look out for a mode of assessment more equable.
The interest here provided for is that of the suitors: viz. on that side of the cause on which, whether in the right or the wrong, this part of the costs of suit would otherwise be imposed.†
2. In a special-jury cause, i. e. where, at the requisition of a party on either side, a half-and-half jury has been ordered, to prevent a disproportionate quantity of vexation in this shape from falling on the gentlemen’s class, let an extra sum of money, at the rate of so much a-head for the extra number of jurors allowed (viz. four or five) be charged in the way of costs, on the party by whom the requisition was made: payable, however—not to the gentlemen jurymen, but to the county or other public fund, on which, as above, the ordinary expense of jury-money is proposed to be charged.
Interest provided for—that of jurymen: viz. gentlemen jurymen;—object aimed at—prevention of vexation—viz. of vexation which, in the shape of jury-service, might otherwise fall in an undue proportion on that class.
3. Immediately after the trial, upon the bringing in of the verdict, let the judge, instead of leaving the expense of the extra jury-money to lie, as above, upon the party by whom the half-and-half jury was required, have power either to impose it on any other party, or simply to take it off: in which latter case, the contribution destined, as above, for the public fund, will for this time not be received.
4. In the event of his exercising, in either way, the above proposed power, it ought to be under the notion, and naturally will be, that the cause is of the number of those which, on some special ground or other, will warrant the imposing on the gentlemen’s class this addition to the quantity of vexation imposed upon them in this shape. This special ground will, as above, be either—1. Extra difficulty, 2. Extra importance, or 3. Demand for equality of numbers on the score of apprehended partialities—say more briefly, apprehended partialities. In the terms of his order, let the judge specify on which of these several grounds it has been founded.
5. For a further check upon the practice of making wanton demands on the time of the gentlemen’s class, lest the simple charge of the extra jury-money (which at the present established rate will amount to no more than either four or five guineas) should not be sufficient, let the judge have moreover power to increase it at his discretion, up to a limited amount: suppose, for example, treble the amount of the simple charge.
6. The form of the judge’s order may, in any of the above cases, be extremely simple:—as for example—1. “This cause being by me deemed proper for the cognizance of a special jury, viz. on the score of” [then proceed to say extra difficulty, extra importance, or apprehended partialities, any one or any two, or all three, as the case may be] “let no extra jury-money be paid—or let extra jury-money be paid—not by—being the party by whom the requisition of the special jury was made, but by—” [mentioning some other party or parties.] 2. “The requisition made of a special jury in this cause by—” [here mention the name of the party, and his station in the cause] “being by me deemed groundless and wantonly made, instead of—being the simple amount of the extra jury-money, payable to and in exoneration of the county fund, let the sum paid by him be—” [here mention the sum.]
7. Let fines for non-attendance be paid to and in exoneration of the fund on which the expense of jury-money is imposed.
For further explanation and justification of the above proposed arrangements, a few more words may perhaps not be ill bestowed.
As in the case of the yeomen’s class, so in the case of the gentlemen’s class, justice requires that, as in any other shape, so in the shape in question, a disproportionate quantity of vexation shall not be imposed: thence the ground for the preventive measures above proposed.
But, rather than any extra pecuniary allowance, in the name of compensation-money, should be given to individuals of the gentlemen’s class, in contradistinction to, and at the expense of, those of the yeomen’s class, better the money were thrown into the sea. By any such extra allowance, a pernicious principle—a principle of sordid and oppressive partiality—would be perpetuated: and public service in this shape would, instead of being a burthen indeed, but an honourable and useful, nor that a heavy burthen—imposed on all alike, would as at present be an object of rapacity and intrigue, sought for and obtained by such as are least deserving of it.
If, upon this plan, vexation, in the shape in question, should, in a proportion a little greater (and it could be but a little greater,) fall on the gentlemen’s class than on the yeomen’s, the overplus would, it is supposed, find for its justification the following grounds, none of which could have any application in the opposite case:—
1. In the character of suitors, to the lot of the gentlemen’s class fall, in by far the larger proportion, as well causes that are attended with extra difficulty, as those which are attended with extra importance.
2. When, on the only remaining ground, viz. the ground of apprehended partialities, a special jury is allowed (i. e. a jury containing an extra proportion of gentlemen,) it is principally, if not solely, for the protection of the interests of this class, in case of any conflict which it may have with the interests, passions, or prejudices of the other. Receiving this extra benefit, they ought not to grudge a small portion of extra burthen.
3. Between the gentlemen’s class and the yeomen’s, the characteristic difference is—that, of the gentleman’s time, a portion may be applied to this public purpose—to the purpose of judicature, without imposing upon him a loss of a pecuniary nature: whereas, in the case of the yeoman, a tax upon his time is, besides the tax upon his time, a tax upon his purse.
4. Service in this line being a source of useful information, and, like a scholastic exercise, a source of intellectual power, whether it be or be not pleasant to the particular individual, it is for the advantage of the public at large that each man should have his share of it: and if this be true, even in the instance of the yeomen’s class, whose share in other branches of government is comparatively so small, it must be so in a more eminent degree in the instance of the gentlemen’s class, whose share in other branches of government is comparatively so large.
By service, in the department of justice in the character of juryman, a man is, in some measure, trained and fitted for service in the field of government at large, in the character of parliamentary elector.
5. It may be of use that it should be distinctly seen on what ground stands the demand for an extra number of gentlemen jurymen on the score of extra difficulty or extra importance—in a word, on any other ground than that of apprehended partialities to the prejudice of that same class. For the purpose of guidance, if by no other than the only useful and proper sort of influence, viz. influence of understanding over understanding, one man of superior intellectual aptitude is as sufficient as any greater number could be: to this purpose, therefore, the only advantage gained by any addition to the number of gentlemen in the jury, is the additional chance it affords of obtaining the requisite degree of aptitude in this shape, in the person of some one.
In regard to the fines for non-attendance, the present system being inefficient, and almost completely nugatory, to give effect to them, and reconcile at the same time to each other the antagonizing ends of justice, would require some new arrangements, which, if intentions were but honest, might easily enough be carried into effect. On this head, a few general hints are as much as room can be found for in this place:—
1. The interest that individuals at large have in the general fund—say the county fund—not affording to any one of them a motive adequate to the purpose of engaging him to watch over its interest in this behalf with effect, a special interest must be given to some one person—for example, the person by whom the monies of this fund are received: a special interest, viz. in the form of a per centage upon the amount.
2. Into the pocket of this one person, the money ought to be made to find its way as it were of course: viz. without need of a lawsuit to be instituted by him, much less by any one else, for that purpose.
3. On non-appearance of any person summoned to appear for the purpose of jury service, let the money be, by a certain day thereafter, levied on him of course: unless at the day, appointed for appearance, in lieu of the person himself, there appear, under his signature, a paper exhibiting some one or more of a list of legitimate excuses, to be allowed and mentioned as such in the form of the summons: the facts of such excuses to be established by an affidavit, with or without co-attestators, as the case may be, according to printed forms, pre-appointed for the purpose, free of stamp-duty, and every other avoidable expense.
Were the arrangements left to him, a member of the firm of Judge and Co. would settle them on this occasion as he does on others. From this burthen as from others, application made for relief in the case where, by accident, as above, the burthen has been rendered undue, would be more burthensome than the burthen itself: of an application thus made, the burthen would be certain, success precarious. Defaulters without excuse would remain unpunished: defaulters with good excuse—defaulters from necessity—would be oppressed. To each useful purpose the system would be inefficient: suffering to particular individuals, with pickings to Judge and Co. out of the same, would be the only fruit of it.
At the same time the whole business would be conducted with the most unimpeachable regularity. Precedent would have been pursued in everything that was done: and thus, as usual, all complaining mouths would be shut: unlearned mouths shut, learned shoulders saved harmless—saved from every particle of burthen, as in all other shapes, so in the shape of blame.
Arrangements continued—5. Formation of the Qualified List—viz. in other counties, &c. as well as Middlesex.
The basis of the jury system being the qualified list, the plan here brought to view might appear chargeable with oversight or negligence, if a topic so material were altogether passed by in silence. But the relevant facts being in so high a degree diversified, and for the most part so inextricably buried in obscurity, the nature of the case precludes every such attempt as that of proposing, in relation to this part of the subject, particularly in such a place as the present, anything like a detailed, determinate, and in a geographical sense all-comprehensive, system of arrangements.
By change, be it what it may—by innovation, on this as on every other part of the field of law—inconvenience, in some shape or other, in some degree or other, is sure to be produced. Unless, therefore, and until, inconvenience in some specific shape can be pointed out as resulting, or about to result, from the arrangements actually in use, this general consideration, loose as it is, will, in each division of the country, as well as at every period of time, operate, as a sufficient bar against any change that can be proposed. But no sooner is any such specific inconvenience pointed out, than the bar is provisionally removed: and then comes the operation of making a comparative estimate of the amount of inconvenience on both sides, in such sort, that when placed by the mind in two opposite scales as in a balance, a just conclusion may be formed, determining on which side the preponderance has place.
But, in different territorial divisions, counties and privileged boroughs taken together, circumstances are, in this respect, so extremely different, that, independently of those changes, which, in some or all of them, are liable to be brought about by time, it can scarcely happen but that, if the same course be, in all of them, pursued without variation, inconvenience, and to no inconsiderable amount, would, upon inquiry, be found, in some instances, to have place.
Hence it is that, upon a general view of the subject, and antecedently to such particular inquiry as no power other than that of parliament is competent to make with effect, a general inquiry, of the nature above intimated, cannot with propriety be considered as superfluous.
For any such inquiry, the present, however, is not the proper place. The alarming political grievance, the utter destruction impending over the palladium of the English constitution, the liberty of the press—this was the consideration, but for which the present inquiry would never have been engaged in. Of this mischief the county of Middlesex has, by the causes already spoken of, been rendered almost the sole theatre. To the exclusion of these mischiefs, so far as depends upon the composition of the qualified list, an assemblage formed upon the principles upon which the composition of that list has hitherto been grounded, may, for anything that hath as yet presented itself to my view, be sufficient: I mean, of course, with the help of such ulterior arrangements as may be conformable to the principles herein already brought to view.
On what persons ought the obligation of serving on juries to be imposed? Answer—On every human being, but for some apt and special cause, either of exclusion or exemption. It is therefore by the indication of such causes, with the reasons on which their aptitude in that character respectively depends, that the proper abstract answer to that question will, in its several ramifications, be furnished. So far as concerns exclusion, these causes would be found to bear a considerable analogy to the causes of exclusion applicable to the function of parliamentary elector. In some instances, a cause that applies to the one function would be found exactly applicable to the other;—while in other instances, such coincidence will be seen not to have place. But in the instance of every circumstance that, in the character of a cause of exclusion, can be proposed with reference to either function, whether it be deemed applicable to both functions or to one only, and whichsoever be that one, considerable light would be seen to be thrown on the subject by the comparison thus proposed.
Thus much may be said of both cases: viz. that, consideration had of the great change in the value of money, as well as in other influencing circumstances in abundance, if the existing arrangements were proper at the times at which they were respectively made, it is impossible that, taken altogether, they should be equally so at present.
At the same time, from the mere existence of that comparative degree of impropriety, it follows not, that the advantages capable of being gained by the removal of the impropriety, would be an over-balance for the inconvenience that ought to be apprehended from a change.
A state of things by no means incapable of being realized, and which ought therefore to be kept in view, is—that the arrangements, having been in a less degree proper at the time when they were made, have by change of circumstances been rendered more proper than at first:—that, for example, the pecuniary part of the qualification, having originally been set at too high a rate, has, by the depreciation of money, been rendered more proper in the present less immature state of society, than it was in the more immature state of things which gave birth to it.
For any attempt to penetrate any further into the subject, it would be time enough if, for any practical purpose, the observations herein already submitted to the public should be found to have a claim to notice. Taking the county of Middlesex, in the first place, for the local field, it would then be time enough to extend the inquiry to the formation of the several original qualified lists for the several species of juries, relation being likewise had to the several species of judicatories in which they have to serve.
It would then also be time enough to extend and apply the whole of the inquiry to the several other counties, and judicial districts included in counties.
Should any such inquiry come to be instituted, the facts, collected and brought to light in relation to the county of Middlesex by the public spirit, the activity, and intelligence of Sir Richard Phillips (see his above-mentioned work throughout) will be found highly serviceable: for out of them may be formed a basis for inquiry, applicable to the several other cases just alluded to. As to all these matters, for the present at least, I can therefore do neither more nor better than to refer the reader to that eminently valuable and meritorious publication.*
Arrangements continued—6. Corruption by Individuals how prevented—No Party should foreknow his Jurymen.
As well in special-jury causes, viz. with a half-and-half jury, as in common-jury causes, with one or two gentlemen jurymen, let matters be so ordered, that, to the parties on each side, it shall, to the latest moment, be imposible to know who the persons are that will serve as jurymen in the cause.
The interest thus provided for is that of the suitors, viz. in each cause that of him who is in the right: the object aimed at is—on the part of jurymen, moral aptitude: viz. in respect of exemption from such corruptive influence—such influence of will over will—as it may lie in the way of individuals in the character of suitors, to exercise on the decision of those their occasional judges.
On this occasion, before we come to speak of the means conducive to this end, observation will require to be taken of a sort of conflict which has place between interest and interest, and thence between object and object: between the interest of suitors (viz. such as are on the right side as above,) and the interest of jurymen. If that of jurymen were the interest that possessed the sole or the predominant claim to regard, rotation and that alone would be the principle employed: for, as will be seen, in so far as that principle is departed from, in so far, on the part of jurymen, vexation—the aggregate mass of vexation, produced by the obligation of serving in that character, must, viz. in respect of the number of them subjected to it, be increased.
But in that case, of the jurors who will have to serve in a given cause, if no supernumeraries are summoned, the whole number, or if, to make allowance for accidents, supernumeraries are summoned (but in no greater number than is necessary to make sufficient allowance for such accidents,) a large proportion of that number might come to be foreknown to the suitors in that same cause. Here, then, is a door open to corruption—to corruption in that shape—or at least in one of those shapes—in which the existence of it—the notorious and declared existence of it—gave birth to the first of the whole string of those statutes relative to juries, in which any mention is made of special juries.
If the principle of rotation be taken for the basis, two other principles ought therefore to be mixed with it: mixed with it, in the character of correctives and preservatives: correctives, viz. to the tendency of that principle, when employed crude and single; preservatives, viz. against the danger of such sinister influence. The one is—the principle of disconnexion as above explained; disconnexion as between gentlemen jurymen and yeomen jurymen, by means of local distance. The other is—the principle of chance: viz. as applied to the determination of the individuals that shall serve together on the occasion of each several cause.
But, when applied on the occasion in question to the purpose in question, the principle of chance requires an increase of number—of the number of persons subjected to this vexation: it requires, for the purpose of each several cause, the attendance of a number greater than the number of those who will have to serve on the occasion of that same cause: for, if twelve (the number of those that serve on each cause) were all that, under and in virtue of the summonses delivered to them by the sheriff, were capable of serving in that cause, the consequence is, that of each man, in so far as it were certain that he would attend, it would be certain that he would serve: and in this certainty there would be no room for chance. True it is, that of his attendance, even in that case, there could be no absolute certainty: for, besides the accidents, such as death and sickness, to which all mankind are subject, and over which the will of man has no controul, if, relation being made to the state of the law on one hand, and the state of his own affairs and inclinations on the other, it were to this or that man more agreeable to stay away in despite of the law, than attend in obedience to the law, he would do—as jurymen, or at least as gentlemen jurymen, are at present suffered to do by gentlemen judges—he would stay away accordingly. But, though, to any good purpose, certainty would not in that case be attainable, yet to a bad purpose, viz. to the purpose of corruption, in the way in question, a probability but too little short of certainty would be attainable: for the corrupter, foreknowing—knowing as soon as the list of the persons summoned, or about to be summoned, for service in the cause in question, were known to him—the corrupter, knowing of twelve persons, in the power of every one of whom it would be, bating accidents, to serve, would at the same time know of so many persons, of the attendance of any one or more of whom he would, in the event of his succeeding in his plan of corruption in their instance, be sufficiently assured.
In the case of common juries, the statute so often spoken of (3 Geo. II. c. 25) has, in § 8, with or without intending it, afforded for this salutary application of the principle of chance a sufficient basis: 72 being the greatest number, 48 the least number, which (regard being apparently had to the difference between county and county in respect to local extent) it allows to be summoned to appear on each occasion—for example, at each assize—for the trial of whatever number of causes may happen to be ready for trial at that assize. But not only of this least allowed number, 48, but of a considerably less number, it is evident, that, with the help of the principle of chance, it might be made use of in such manner as to render corruption—previous intercourse, and thence corruption—on the part of individuals, practically speaking, impossible. For the first cause that comes on for trial, immediately before the trial, let the names of all such as are present be put into a dark box, shaken together, and so drawn out. If of these twelve it were determined, that after this first cause they required respite (though for the judge who has the guidance of them there is no respite,) these might on the second cause be all of them set aside, and for that second cause the lottery be confined to the remainder: and, the first twelve being after their respite replaced in the lottery, so on through any number of causes.
But if, in the instance of any one cause it be in the power of any one person of himself to determine, or by any other means to know of, a set of persons, in the power of each or even any one of whom it shall be in the character of juryman to serve, in the power of that one person it is, whether by neglect or by design, to introduce an intended corrupter to so many persons in whose power it will be, if corrupted, to secure to him the verdict he desires: and, the greater the number of the persons to whom it happens to be in possession of this knowledge, the greater the number of such possible introductors, and by that means the greater the probability that such corruption will take place.
Let, for instance, the rule be such, that it it is by a certain person—for example, the sheriff (that is to say, the attorney by whom, in the character of under-sheriff, the business is done)—that it is by this person that the list of the persons, who are to be summoned to serve as jurors on the occasion in question—for example on the assize in question—is to be determined;—that at the assize in question, the number of these is to be 48;—and that in the first cause that stands on the roll, the 12 first of those that appear are to serve. In this state of things, it is evident, that if to this attorney it should happen to find his convenience, either in corrupting the requisite number of jurymen himself, (which might be attended with some danger) or in letting in another corrupter upon them (which might be done without any danger,) the regular practice will find itself altogether well adapted to the purpose.
In this state of things, thus for illustration sake supposed, we see, in aid of the practice of corruption, two auxiliary principles—viz. choice and foreknowledge, confederated. But even without the aid of choice, foreknowledge may very well be sufficient for the purpose. Suppose it settled, that in the gross or total qualified list, the names shall be entered in the order of the alphabet: moreover, supposing the whole number in a given county 480, and 48 the number to serve on each assize;—that for the first assize, the 48 whose names stand first in the alphabetical list thus composed shall be summoned to attend; for the next assize, the next 48; and so on. On this plan, if pursued without deviation, it will not be in the power of the sheriff (that is, of the attorney his deputy) to choose a set of eventual jurymen for the purpose of their being corrupted; but, what is worse, it will be in the power of every litigant to whom the order of things in question is known, to find his way to those on whom he proposes to himself to make the experiment—to find his way to them of himself, and without the need of being beholden for introduction to an undersheriff or anybody else.
Thus much as to juries in general—thus much as to common juries: thus much as to what, in that case, is capable of having place. As to what in that case actually has place, it is what it might take up too much room to state, and what at this moment the means of inquiring into are not within my reach.
As to the case of special juries, what actually has place lies in a narrower compass, and at the same time within reach. In this case, everything that, for the furtherance of corruption, by possibility could have been done, has been done: whether it be constant corruption, administered, and with certainty of success, by and for the benefit of persons in “high situations” as such, and without either risk or trouble on their part, as above—or occasional and casual corruption, to be on this or that occasion administered, in his private and separate account, by this or that particular person, in or out of high situation, to whom it may happen to stand in need of such assistance. In the first place, choice (as we have so often had occasion to observe) is put into their hands; viz. by the power of “nomination” vested in the hands of the master packer for that purpose. In the next place, among the comparatively small number 24, in the instance of which the choice is made, and attendance accordingly commanded, “foreknowledge” is rendered, to the purpose in question, “absolute:” for out of these 24, who, as per list, are summoned, of those that appear, the 12 whose names stand first upon that same list, are the 12 that serve.
For the furtherance of corruption, the utmost that could have been done, having thus been actually done, to what cause, to what psychological cause, having its seat in the breasts of learned and reverend lords and gentlemen, shall the result be ascribed? To design? It would be of a piece with all their other designs, and all their other doings. To imbecility? On the part of no other set of men would imbecility be to be found, weak and palpable enough to match with it. For note once more, that it was amid the cry of corruption—actually experienced and acknowledged corruption, that this state of things, so exquisitely adapted to the purpose of that same corruption, was in and by this very statute (3 Geo. II. c. 25) part confirmed, part organized.
Unanimity increases the Aid afforded to Corruption by Foreknowledge.
By the principle of forced unanimity, so long as that abomination is suffered to continue, an enormous degree of facility, as already observed, is given to the corruption of jurors: since by any one of the twelve, so that one be but sufficiently remunerated for the quantity of endurance necessary, the suffrages of the remaining eleven may be forced. And though, in any given instance, as matters stand, it should not be capable of being foreknown to a certainty that this or that one individual will on the particular trial in question be upon the serving list—foreknown, viz. time enough for administering to him the matter of corruption with effect, yet by gaining divers individuals, each of them likely to stand upon the serving list, the probability of success may in any degree be increased.
Were that flagitious principle rooted out, and the principle which gives the power to a majority seated in its place—were this done, even a slight admixture of chance (if it be too much to say the rational and honest principle of itself, and without the help of chance) would suffice to render corruption in this shape morally impossible. If no number less than a majority, viz. less than seven out of twelve, were sufficient to command a verdict palpably unjust upon the face of it, no such verdict could be commanded without a completely successful application of the matter of corruption to that large number. But, taking the state of morality among the people upon the worst footing imaginable, the chance of finding, or creating on the sudden, so much depravity on the part of so large a number, and that out of a limited greater number, cannot but be extremely small: and, ere he could give himself that small chance, the corrupter would be under the necessity of putting it into the power of each of the seven to ruin him, in character at least, by covering him with infamy. Such would be his difficulty, even supposing the twelve who are to serve on the trial—supposing them, all of them, in their turn, at and during the quantity of time that lies open to the intrigue—all of them during all that time to a certainty foreknown. And suppose such absolute foreknowledge unattainable—suppose, for example, four-and-twenty, the number of the gross list, of any of whom the twelve upon the serving list may happen to be composed, it is easy to see that, to this our supposed corrupter, the improbability of success, and at the same time the magnitude of the danger, must, in this case, receive a prodigious increase: for, in this case, to give him the same assurance of success as in the former case, no smaller than nineteen is the number that would be necessary to be thus corrupted.
But upon the principle of sham unanimity—upon this principle, which gives the command of the verdict to any one—not only, if all twelve were foreknown, might the corrupter, by the corruption of a single juryman, give himself a certainty of success, but if no other knowledge were obtained, more determinate than that of the four-and-twenty out of which the twelve would be taken, the same success, in the preparatory operation of corruption, would still give him an even chance of succeeding in the ultimate object of the corruption, viz. the commanding of an unjust verdict: and, by every additional juryman whom he could contrive to gain, this even chance would receive a proportionable augmentation, until by the rising of the number of the corrupted to thirteen, absolute certainty would even in this case be produced.
Thus stands the matter upon the supposition of a gross list equal in number to twice the serving list: augment the relative number of the gross list, the difficulty of corruption will, it is evident, be in both cases increased: and in each case by an amount that might be ascertained, but is not worth ascertaining for the present purpose.
One thing will be evident, viz. that, on the principle which gives the command of the verdict to a majority out of twelve, under the most favourable circumstances in respect of the number of the gross list, corruption could never obtain a chance nearly equal to what, on the principle which gives the command of the verdict to any one corrupted juryman, it possesses under the circumstances least favourable in that respect. Seventy-two is the greatest number that can in any county be returned and appear for the trial of all the causes that can at one and the same assize present themselves:* and even under so great a disadvantage, if the power be in a single juryman, the corruption, though it were but of a single man of the seventy-two, gives the corrupter a chance of success, viz. as one to six. Whereas, if the power be in the majority, though the number resturned and appearing be no greater than the twelve who are necessary to serve, insomuch that all who are to serve are foreknown, the corrupter may have gained six, or at least five, without having as yet given himself any chance at all.*
Arrangements respecting Form: viz. the Form of the proposed New Law.
For giving expression to the operations, which, under this head, require, in my view of the matter, to be performed, a very few words will suffice. Presenting themselves as requisite in relation to this part of the field of law, the mention of these operations could not, on this occasion, be omitted. But, in relation to this part of the field, the demand for these operations cannot be more urgent, nor the propriety of them more indisputable, than they are in relation to every other part of the same as yet scarce cultivated waste.
1. Consolidate into one act all laws relative to juries.
2. Repeal in the lump the whole of the existing chaos.
3. Place the whole of the rule of action on the footing of statute law. Of the practice of the several judicatories, whatsoever is approved of, adopt and give expression to: whatsoever is not approved of, abrogate in the lump.
4. Except in virtue of such special powers, as shall, in the tenor of the law, be thought fit to be given for the purpose, forbid all alterations and regulations that might otherwise be made in or respecting the field of practice in question, in and by the authority of the respective judicatories.
STATE OF JURY PACKAGE IN SCOTLAND.
On this head much stands expressed in a few words.
Extract from an anonymous pamphlet published on the occasion of the Scotch judiciary reform, under the title of Reflections on the Administration of Civil Justice in Scotland, &c.: Edinburgh, for Blackwood; London, for Longman & Co. 1806—page 88, note:—
“The mode of appointing juries in criminal cases is most improper. The sheriff may return forty-five men chosen by him at pleasure; the judge may select any fifteen of them to compose the jury; peremptory challenges are unknown. Is it not obvious that these two officers have the fate of a prisoner often in their hands?—in other words, that they can return what is termed in England a packed jury? Nothing should be left in criminal cases to the discretion of persons over whom the crown is always likely to have influence; and therefore it is much to be wished that a clause should be introduced in the bill, which is to be founded on the resolutions, in order to regulate the appointment of juries in criminal cases.”*
If, in the statement thus made by an anonymous, though not altogether an unknown hand, there be a syllable of truth—and by known, and well-informed and trust-worthy informants, I am assured that it is correctly true—the packing system has in that kingdom been carried to a pitch of perfection equal in efficiency at least, if not in dexterity, to that which it has attained in England, and this not only where personal liberty alone, but where life and everything else, is at stake. If, in the whole population of that kingdom, electors and elected, there be a human being fit for anything better than to serve as a tool in the chest belonging to Lord Melville, or a commissioner in the committee of reform, headed and characterized by that name, behold an occasion for him to show himself.
HUMBLE PROPOSAL FOR RESTORING THE AUTHORITY OF PARLIAMENT.
Unless the Authority of Parliament be vindicated, Package cannot be abolished.
I come now to the second of the political disorders here in question, viz. the contempt—the habitual and undisguised contempt—manifested by judges, and other subordinate functionaries, as towards the authority of parliament: or rather (for in this consists the malignity of the disorder) the connivance—the habitual and unvaried connivance—by which this contempt has been encouraged and confirmed.
On this head, a conception that will naturally present itself to everybody, and at the first glance, is—that the present is of the number of those occasions in which the difficulty consists—not so much in determining what it is that is proper to be done, as in engaging men to do what is proper to be done, whatsoever it may be.
To the justness of this remark I can find nothing to oppose: accordingly, of the two following sections, the business of the first is—to do what can be done by so weak an instrument of communication as the present, towards holding up to view the flagrancy of the disease: of the other, to present to view, and in a specific shape, what seems to be the proper remedy, penetrated all the while with the clearest and acutest sense of the minuteness of the chance in favour of its being applied.
This, bitter as it is, is a cup which cannot be put by. Package, it is true, constitutes that particular abuse which is the object—the only direct object—of the present work. But so intimate is the connexion between this disorder, and that which consists in the habitual contempt of parliament, that while this radical weakness remains uncured, any remedy that can be applied to the derivative malady will either be from the very first inoperative, or, at the very best, will in a short time cease to operate. If the authority of parliament had not been set at nought by judges, the package of juries could not have been established, much less, as we have seen it, openly defended: and while parliament continues, as it has done, to suffer its authority to be thus set at nought, in vain would it endeavour to put an end to this package: juries will, as at present, continue to be packed. To apply to this abuse the only possible remedy—I mean, the only possible direct and special remedy—it would be necessary that parliament should make a fresh law: but if, when the fresh law has been made, judges continue determined to deal by it as judges have done hitherto by the existing ones, viz. to disobey it—and parliament to do as parliament has done hitherto, viz. to sit still, and, without a thought of giving effect to its authority, see itself disobeyed, the trouble of making fresh laws, under the notion of applying a remedy to the other abuse, may as well be spared.
Contempt put upon the Bill of Rights, by the Lord Chief Baron’s Package.
As to the statutes, which bear in detail upon the subject of juries, and even in respect of the clauses in question thought to bear upon special as well as common juries, these, it is true, were, on the occasion in question, by the learned judge more particularly in question, viz. the Lord Chief Baron, violated in intention only, and not in effect: special juries having, by the fraud of the learned penman, been exempted, as we have seen,* from those provisions against corruption, the demand for which was so much more urgent in that case than in the instance of common juries.
But though, in the manner that has been seen, the contempt entertained by this pre-eminently learned person (not to speak at present of any other pre-eminently learned persons) as towards the authority of parliament, failed by accident and by misconception to fall upon these statutes at which it was principally aimed, it fell, as we shall see, without accident, upon another statute, I mean the statute commonly called the Bill of Rights.†
On looking into this much-vaunted law, and in particular into those parts of it which bear upon the subject here in question, the weaknesses betrayed in it are seen to be such as cannot be thought of without regret; the imbecility, if not the treachery, of the learned penman, in whom the unlearned found themselves, as usual, under the necessity of reposing their confidence, being, on the face of it, but too distinctly visible: propositions, of the cast termed by logicians identical, fit only for the mouths and pens of drivellers: propositions which, neither conveying instruction nor imposing obligation, leave everything exactly as they find it: propositions declaring that what is right ought to be done, and what is wrong ought not to be done, and so forth.
But this weakness, though to a lover of the English constitution it cannot but be matter of regret, will not, to the pre-eminently learned person in question, afford any thing like matter of excuse. For to this so much vaunted law—to this law, as to everything else that bears the name of law, some meaning must be found: and to this law, viz. in respect of that clause in it which is here in question, no sooner will any meaning be found, than what will also be found is—that by this pre-eminently learned person, it has been violated.
In the section in question (§ 2,) two parts may be distinguished—the historical and the legislative. In the historical, the principal abuses of the then late reign are related under twelve heads; in the legislative, under an equal number of heads, the repetition of these same abuses is, to wit, by a declaration made of their illegality, reprobated.
In the historical part, of the only article which touches upon jury-trial, being the article which is numbered 9, the words are as follows:—“9. And whereas of late years partial, corrupt, and unqualified persons have been returned and served on juries in trials (and particularly divers jurors in trials for high treason, which were not freeholders.”)
In the legislative part, in the only article which touches upon this same subject, being the article which is numbered 11, the words are as follows:—“11. That jurors ought to be duly impanelled and returned (and jurors which pass upon men in trials for high treason ought to be freeholders.”)
In each of these two articles, there is a clause which does not bear upon the present subject; viz. that which speaks of high treason and freeholdership. Of the clause which does bear upon this subject, it must once more be confessed, that, if it be not sad treachery, it is sad dotage,—“that jurors ought to be duly impanelled and returned;” viz. that what in this case ought to be done, ought to be done.
In relation to the subject here in question, the law having thus in itself no meaning, to find a meaning for it. we are sent to history—to the history of the times. Consulting history, a fact that we find in every book of history that touches upon those times, is—that in the two reigns then last preceding, juries used to be packed; that is, that, instead of being left to a mode of selection, which, with reference to the crown, its dependent judges, and its other instruments, would have come under the name of accident or chance, the persons serving as jurors were determined by choice; viz. by the choice made of them by these same instruments. The choice having for its notorious object the causing unjust verdicts to be delivered, persons, who either of themselves were “partial,” or were made so by being made “corrupt,” were taken for the objects of such choice, and, if they were not found so, were made so, by that choice.
That in the exact bulk to which it has been swollen, and in the exact shape into which it has been, by our pre-eminently learned artist, moulded, the abuse relative to juries was not in the contemplation of the framers of those clauses, must I think be confessed: perfection, such as this which we have seen realized by Lord Chief Baron Macdonald, outstripped—not only the observations made by the Maynards, the Somerses, the Hawleses, the Pollexfens—but the most sanguine hopes of the Scroggses and the Jefferieses with their Et cæteras of those times.
But what, on the other side, cannot, it is supposed, be very easily denied, is—that, in the major abuse of these our maturer times, the minor abuse of those immature times is included. The abuse of those days was, that after hard labour bestowed upon the matter on each separate occasion, persons, who were found or rendered “corrupt”—or in some other way “partial,” were on great occasions now and then “returned,” and made to “serve on juries in trials.” The abuse of these days is—that, under the arrangements made—made and in despite of remonstrance persevered in—persevered in either for that purpose or for none at all, persons are on all occasions, great and small, caused to be “returned,” and to “serve,”—persons such as, by the permanency with which they are invested, and the habitual, but ever withholdable bribes, with which they are fed, cannot but have been rendered “corrupt”—corrupt to a degree of corruption, of which, as surely as by any “partiality” it could be made to be, injustice is, upon every desired occasion, the habitual consequence.
In vain would his Lordship say—Those whom I have caused to be “impanelled and returned,”—as you would say, not “duly impanelled and returned,”—are not jurors: they are in effect commissioners, and members of a standing board of my own framing—persons whom, into the box which ought to have none in it but jurors, I have so managed as to introduce, under the name of jurors. Those whom you take for jurors—those whom I have thus “impanelled and returned” under the name of jurors, are not jurors; and therefore, in causing them to be “impanelled and returned,” even though it should not be duly impanelled and returned, I have not offended against the Bill of Rights.
“My intention was not to ‘maim and disfigure’ the man—my intention was to kill him: and therefore, if you punish me as for maiming and disfiguring him, you punish me without law.” Such was the plea of a very ingenious as well as learned person, a Mr. Coke, who, on the act of 22 and 23 Car. I. c. 1, was indicted for the maiming and disfiguring of a Mr. Crisp—“What I am accused of intending to do is the committing the lesser crime: what I really intended to do is only a greater crime, in which the other is comprised.” This plea did not avail Mr. Coke, and as little, if there be anything like justice in the country, will it avail the Right Honourable Sir Archibald Macdonald.
But (says somebody) as one swallow suffices not to make summer, so one act suffices not to make a habit. What, in this particular instance, was done, may not perhaps have been altogether justifiable; but, if for the express and sole purpose of correcting this error, so it should come to pass that a fresh law were made, can you, by this one instance of irregularity, hold yourself warranted in apprehending that a law so made would not be obeyed?
I answer, Yes: even by this one instance, the disobedience being so deliberately and determinately, and after such warning and remonstrance, and upon such principle as have been avowed, persevered in. But, of the existence of the habit, and my expectation of the eventual continuance of it, it is on this one act alone that I ground myself; and, to render it manifest, and beyond all possibility of dispute, that the contempt put upon parliament is determined, and rooted in a sort of principle, I proceed to bring to view, out of a countless multitude that might have been produced, another instance or two, such as either the matter of the present inquiry, or chance recollection, has happened to throw in my way.
Recent Contempt of Howard’s Act by the Detention of Acquitted Prisoners.
To enumerate all the instances in which the symptoms of the disorder in question have exemplified themselves, would require a volume. Of the example which here follows, the particular use is—to show the obstinacy of the disease: and it is only by casual symptoms, brought to light by rare occurrences, such as accident may not either bring to light or so much as give birth to, twice in half a century, that this quality in the disease can have been made manifest. In the books, the contempt—the simple contempt—may indeed be seen breaking out continually;—but it is only by extra-judicial conversations or correspondences, that the obstinacy of it could have been displayed in its genuine colours.
By obstinacy on one part, energy on some other part, and acting in an opposite direction, is implied. But in any court of judicature, on the occasion of a cause, no such energy ever has been known to be, or with any colour of reason could be expected to be, displayed. On the occasion of a cause, the only sort of person by whom any such quality as energy can in any direction be displayed, is an advocate. But, from the advocate, whose contention is before and under the judge, not with and against the judge, at belonge not to the station of the judge to experience any thing like adverse energy. One common interest—one and the same sinister interest—links them together in indissoluble bands. Accommodation to indolence, gratification to vengeance, unmerited reputation, sinister emolument, lawless power,—whatsoever of all these good things the judge holds in possession, the advocate beholds in expectancy. The weakness of the legislature constitutes the lawless power of the judge: and the present power of the judge is the future power of the advocate. With the legislator, his supposed superior, the judge never comes in contact: from the legislator he knows not what it is to experience resistance. The legislator makes laws: and the judge, according as it happens to them to suit or thwart his views, gives effect or inefficiency to them, as he pleases. In parliament, be his rebellion ever so flagrant, he beholds neither inspector nor denunciator, much less an avenger: two sorts of men alone does he behold there—admirers—ignorant and awe-struck admirers—or accomplices or abettors.
Thus it is that the king—I mean the king in parliament—being sunk into a King-Log, not only the great bull-frogs, but the meanest tadpole, views his humiliation with complacency, and beholds in it a source—an inexhaustible source—of power, impunity, and triumph for himself.
Evidence of obstinacy in one quarter requires, as above, and supposes, energy, adverse energy, in another: on the particular occasien here in question, thus it is that, government being in this country in the state above described, the energy necessary on one side, and consequently all manifestation of obstinacy on the other, might have been wanting for any number of additional ages, had it not been for the till-now-unexampled union of public spirit and intrepidity—well-directed public spirit and persevering intrepidity—in the person of Sir Richard Phillips.
Materials I have none, over and above those which have already been laid before the public by himself: but in his work they stand mixed with other matter in abundance: and, for displaying their importance with relation to the design of the present work, observations have been found requisite, such as could not have come, with equal propriety, from any person, by whose testimony the facts themselves were furnished.
In regard to the degree of credit due to it, one very short observation may suffice. A twelvemonth and more has elapsed, since his statements on this head have been made public, and in all this time not a syllable of contradiction has appeared from any one of the official persons whose conduct and language is here in question. One of two things: either he contradiction could be given—or, in the style of the pre-eminently learned judge, to give it was not thought “worth while.”
Judges publicly charged, and by a functionary, himself in “high,” however subordinate “situation”—charged with disobedience—wilful disobedience, to parliament: and in their estimation so trivial the imputation, and the opinion of its truth so unproductive of all cause of uneasiness or apprehension to themselves, that whether it prevail or not is to them and their feelings matter of indifference. This being the state of judicature, in what a state is government!
The case that gave occasion to this display is as follows:—
By the statute 14 Geo. III. c. 20, § 1, as copied by Sir Richard Phillips, it is enacted, “That every prisoner charged with any crime, or as an accessary thereto, against whom no bill of indictment shall be found by the grand jury, shall be IMMEDIATELY set at large, in open court, without the payment of any fee,” &c.*
Of an enactment thus clear and explicit, the habitual violation is, in a memorial addressed to the Recorder of London—couched in the most respectful terms, dated the 3d of November 1807, and presented in the names and with the concurrence of both the sheriffs—presented to the notice of that learned judge on the 3d of November 1807. For eleven days no answer. On the 14th of the month (no answer yet received) follows, in the form of a note, an address from Mr. Sheriff Phillips alone, to the same learned gentleman, for the declared purpose, indeed, of “reminding him” of the above paper, but again in the most cordial as well as uniformly respectful terms.
The season of delay was now past: now comes the season of promptitude, at least, if not of precipitation.
A few hours brought to Sir Richard an answer, from which, what belongs indispensably to the present purpose (not to touch upon matter foreign to it,) the following is an extract:—
“As the commission of gaol delivery at the Old Bailey is constituted of the highest, and of all the law authorities in the kingdom, the twelve judges of England, the whole magistracy of the city, besides other great and respectable names therein, Mr. Phillips, upon consideration, will surely see how indecorous it would be in the Recorder of London to discuss and argue of the power, authority, and practice of that court, with one of the sheriffs, who, however privately esteemed and regarded by the Recorder, is, with respect to that commission, but an officer and minister of the court.”
Business, at least where the public has an interest in it, does not, we shall see, linger with Sir Richard Phillips. Not after an interval of eleven days, but on that same day, in reply goes another note from him to the same learned judge, always in the same style of unvarying respect, but expressing “his earnest hope” that the necessary measures would be taken for paying obedience to the law; and stating, amongst other matters, “that he understood, in a late conversation with Lord Ellenborough on this very subject, that points of practice in the Old Bailey court rest chiefly, if not entirely, with the Recorder, as the law-officer of the corporation.”
Thus, had it depended upon Mr. Recorder, would have ended the whole business. Fortunately, “within a few weeks after,” the sheriff, as he tells us, “had an opportunity of pressing the subject again on the notice of the Recorder, when (continues he) he peremptorily told me, that he never would consent to the alteration in the practice of the court which I proposed, and as long as he lived, it should continue as it is.”
Thus far Sir Richard Phillips. As to Mr. Recorder of London, for my own part, if with any propriety I can be said to have any personal acquaintance at all with that learned judge, it is of no other sort than what, as towards him, would tend to cherish in my mind those sentiments of respect and regard which were so uniformly manifested towards him by Sir Richard Phillips.
But, though a very obscure and insignificant person, I have the honour to be a British subject. I say subject: for on that ground, rather than on so technical and narrow an one as that of freeholdership, do I choose to rest my claim. I am a British subject; and, in that character, I feel as strong an interest in the preservation of the English constitution, as any one can feel in the preservation, or even in the destruction of it. And, in consideration of this interest it is, that it seems proper for me to declare—that, although instead of being that great person to whom, by the description of points of practice, this part of the liberties of Englishmen is, it seems, “bargained, assigned, transferred, and set over by the twelve judges, he were my brother, my opinion concerning him would still be this, viz. that if it really were the case, that the continuance of the practice depended upon his life, the last day of that life would to his country be a most happy one.
A conspiracy of the twelve judges, with the Recorder of London at their head (for such it seems is the new order of things)—a conspiracy of the twelve judges with their ringleader the recorder, for mending the constitution of the country, by resisting, overruling, and treating with avowed contempt, the authority of parliament! Such is the state of things brought to view by this evidence. Such is the state of things which I would wish to recommend to the consideration, the serious consideration, of all such British subjects, if any such there be, in whose eyes the preservation of the constitution of the country is of more value than any share which, in the character of lawyers, or confederates with lawyers, it may happen to them to look for in the plunder of it.
“Mr. Phillips, upon consideration, will surely see how indecorous it would be in the Recorder of London to discuss and argue of the power, authority, and practice of that court with one of the sheriffs, who is but an officer and minister of the court.” No: if in any such argument Mr. Phillips could have seen anything indecorous, his view of the matter would, I will confess, have been very different from mine.
Indecorum in arguing, in relation to the point in question, the practice of the court? No: but something a great deal worse than indecorum in the determination—the obstinate and rebellious determination—to continue in such practice.
The House of Commons—yes, the House of Commons—there is the place, at which the discussion on this question should now be carried on. As to argument, of argument, of further discourse,—unless what as above is stated to have been his language, be not only in tenor but in purport denied to have been so—of further discourse, in any shape, on the part of the learned gentleman, there is no need:—hearing is for him the only ulterior function needful: hearing, his function—genuflection, his proper posture for the performance of it.
The inhumanity of the practice, its rank and barefaced injustice, the oppression thus heaped—heaped upon injured and established innocence—the contrast it makes with their principle of nullification—the instrument manufactured by their partnership for dealing out impunity at their own pleasure, and their own price—for dealing it out, not to merely possible only, but to convicted guilt* —all these are subjects which must for the present be discarded, as being foreign to the design of the present work, as well as of the present chapter. The subject which alone belongs to the present purpose is the subversion of constitutional order—the contempt—the wilful, the deliberate, the confederated contempt—of that supreme power, the supremacy of which is in words acknowledged, and in grimace bowed down to, even by themselves. Alas! by what terms can such enormity be expressed? The very language sinks under it!†
Parliamentary Operations proposed.
Under this head, a few short and compressed hints are as much as, if not more than, will be found “endurable,” especially under the Perceval dynasty, from a self-created censor, who has neither a coronet in his pedigree, nor so much as a place in the red book:—
I. Committee of Inquiry, to collect and report the facts.
Subject of inquiry—cases of disobedience to acts of parliament on the part of persons concerned in the administration of justice; limitation necessary, at least in the first instance, confining the remark to such cases in which misconception was impossible. No fear that by this restriction the work would be left without materials to operate upon. Without such restriction, the work would have no end.
To render the import of the restriction clear, an example or two will suffice. Cases which have more or less of arithmetic in them will in general be found to afford the clearest samples:—
1. One such has been brought to view already. Law, prohibiting the giving, on such or such an occasion, to a person of such or such a description, money to the amount of more than one guinea. Official transgression, on an occasion of that same description, to a person of that same description, sum given, two guineas.—(See above, Part III.)
2. Law, in a case therein described, giving to the successful party double costs:—official transgression—and here the office is judicial—giving, and that avowedly, instead of the double costs, single costs, with an addition of only half single costs. Acts of parliament, upon which contempt has been poured in this shape, are to be found in swarms: they are pointed out by the indexes.
3. Law, as above, giving to the successful party treble costs:—judicial transgression, giving, instead of the treble costs, single costs, with the addition of only three quarters of the amount of single costs. Another swarm of statutes, upon which the cup of contempt has thus been poured to the very dregs.
II. Parliamentary Resolutions.
The habit of transgression established, what shall then be done?
The least that can be done is for the House (I suppose it the House of Commons) to pass a string of resolutions, condemning the practice, and denouncing eventual punishment in future. Happily this house, in conjunction with the other, possesses, in the right of addressing the king for removal, a virtual power altogether adequate to the purpose:—“Resolved, that in case of any misinterpretation put from henceforward upon any act of parliament, by any judge or judges, should such interpretation be deemed wilful, this House will address his Majesty, praying the removal of such judge or judges.” After wilful, add, if necessary, “and not proceeding from error in judgment merely.” Something to this effect may serve as a sample. But to fix the meaning, and save it, if possible, from being explained away, an example or two, as above, if the law of the Medes and Persians would admit of any such innovation, might be of use.
As to retrospection in any shape, on this question, victory must, for any part I shall presume to take, be left as a prize to eloquence. Honourable gentlemen, according to whose theory bulls take a pleasure in being baited may try it upon judges.
If the measure they so freely mete to others,* were to be meted to them again (I speak of judges,) the question would be decided, and the benches cleared. But, in my own view of the matter, this measure, being in every application that can be made of it, a most false and mischievous one, it depends not upon them, by any use they can make of it, to make it otherwise.
Retrospective Censure, is it to be looked for?
The notion upon every occasion assumed and taken for granted among lawyers is,—that to the judges—meaning the twelve judges and the chancellor—acting respectively in one or other of their many and various spheres—belongs the interpretation—the uncensurable as well as unappealable, and thence the absolute and uncontroulable interpretation—of whatsoever goes by the name of law: viz. not only of that spurious sort of law, which, by the oscitantcy of parliaments they have been suffered to make—to make of themselves and for themselves—but also of that only genuine sort of law, which is made by parliament.
In certain cases indeed, but in certain cases only, the transaction being, in some shape or other, capable of being brought before the House of Lords, the conduct of these official lawyers may to some purposes be weighed by other hands, be weighed by non-learned hands. But forasmuch as where any judicatory, composed of any one or more of these thirteen potentates, is in question, every idea of censure is excluded; reversal, or modification of the judicial transaction, is the only purpose to which revision is considered as capable of being performed: and though, in point of right, non-learned lords cannot, on these, any more than on any other occasions, be avowedly debarred either from speech or vote, yet, in point of fitness and propriety, the very appellation thus incontrovertibly applicable to them, suffices to indicate, how incongruous, on these occasions, any interposition from so weak a quarter would be deemed—if not for the purpose of reversal or modification of the interpretation itself, at any rate for any such purpose as that of censure to be passed on the interpreters.
In the putting of any such interpretation, being still but men—(for this concession, such is their candour and humility, they may be depended upon for making)—in the putting of any such interpretation, they are liable to fall into error: but, be that error what it may, at least so as competency of jurisdiction be out of dispute, it never can be so much as censurable, much less punishable.
Now in this I cannot but behold a doctrine, against which, had I a hundred hands, I would protest with all of them, as being inconsistent with all government. Admit this, parliament is but a tool—a corrupt as well as a blind and passive tool—in the hands of lawyers and their confederates. Admit but this, transgression will be heaped upon transgression, till the whole power of the country, and with it, in due season, the whole property of the country, will be avowedly in their hands:—admit but this, sooner or later they will construe the whole money of the country into fees, as at one time the clergy were on the point of consecrating the whole land of the country into churchyards:—since, let them carry their usurpations, their oppressions, their extortions, to ever so enormous a length, they have never anything to fear—they have still everything to hope, or rather to make sure of.
Reading or thinking of those judges, whose sanction was lent to ship-money,—Ah! how innocent were those (a thousand times have I said to myself,) in comparison of these of modern times! How much more clearly was their transgression a transgression against the common welfare—against law as it ought to have been than against law as it then was! By what a host of precedents was it not sanctioned! And, when statute law is out of the question, of what stuff is law made, or so much as pretended to be made, if not of precedents?
No fresh Acts requiring Obedience to existing ones.
But above all things let us have no fresh law: I mean for the mere purpose of causing the existing ones to be obeyed: no enacting or re-enacting statutes; still less a declaratory act.
A declaratory act?—Observe the consequences. A falsehood committed: the supremacy of the king in parliament abdicated, surrendered: surrendered to the lawyers; and on so easy a condition—to them, of all mankind, so easy—as the employing false pretences in the exercise of it: pretending to have had “doubts,” where it is impossible they should have had any:—pretending to have put upon a word a meaning, which it is impossible they should have put upon it.
In the first place, a falsehood committed. “Whereas doubts have arisen . . .”—Doubts arisen? doubts about what?—whether immediately means immediately? Are lawyers the only persons who know what immediately means?—are all but lawyers ignorant of it? After this first falsehood—committed by parliament itself—after this falsehood, and by means of it, comes the abdication,—the surrender—and the endless train of falsehoods—falsehoods bespoken of judges, by an order so clearly given, and which with such regular alacrity would be executed.
Yes:—to make a fresh act would be actually to yield the point to the lawyers, to confirm the usurpation instead of checking it. It would be allowing them the very negative in question: the negative which, without as yet daring to claim it, they have been exercising: a negative, which they want but this allowance to exercise at pleasure, and at any time, upon all acts. Take at pleasure any one future act: the negative having (suppose) been exercised upon that act, the worst that could happen would be another act: which act, when passed, would be just as completely subject to their negative, as its predecessor was: and so toties quoties. By every such act, the uncertainty—“the glorious uncertainty of the law”—would receive fresh confirmation, and, if possible, fresh increase: the uncertainty of the law, and the certainty of ruin to every man, not above the common ranks of life, who, with the words of it before him, should be ill enough advised to ascribe anything like certainty to it.
Taking cognizance of a murder, and inflicting punishment accordingly, the judges of the Common Pleas, acting as such, would themselves be murderers, and as such punishable. This is what our men of law themselves have not scrupled to declare.* Why? Because in this purely ideal case, if the authors of the transgression are lawyers, so are they also who are to judge of it and to punish it.
Here then is a transgression on which, according to their own doctrine, punishment may attach, even though the transgressor be a judge, acting in his character of judge.
Allow then (says a loyal subject to these disloyal usurpers,) allow then, that where the law transgressed by you is a law of the king’s making—made by the king in parliament—allow that in that case, if, to the conviction of every man that sees the words of the law, your trangression has been a completely wilful one, you are not exempt from punishment,—allow but this, this is all we want of you. What we do not want is—to see you in any such posture, as that which, in the case of your own putting, you would figure in. But what we do want to see you in is—a kneeling posture—if not literally, at least figuratively:—kneeling, like one of king James’s parliaments, “upon the knees of your hearts.” Yes, and in this posture we must see you, or parliament is a laughing stock—you tyrants—and we slaves.
The constitution, in short, is already at an end, and the government a mere tyranny in the hands of the judges, if, to save them harmless against the punishment due for a transgression committed by them against the law, it be sufficient to them in all cases, or even in any case, to say, such is the construction that we put upon it: if, in the instance of this as of every other set of men, for the purpose of condemning them, and if guilty, punishing them, it be not, to whatever authority it belongs to sit in judgment on their conduct, competent, if so it appear, to pronounce that the allegation, express or implied, of their having believed such and such to have been, on the occasion in question, the intention of the legislature, is not true.
To the meanest subject that is to be found—to him on whose part, not only in relation to the particular import, but in relation to the very existence of the law in question, ignorance is at the same time most certain and most excusable, such ignorance affords not, in the breast of those arbiters of his fate, either justification, or so much as excuse:* and by the mere supposition of it, and that an untrue one, shall such ignorance afford not only excuse but justification to those in whose situation, even without other transgression, such ignorance—ignorance of the law—is itself a crime?
No:—neither on this nor on any other occasion: no; on no occasion, nor on any account, on the part of learned gentlemen will there be any objection to fresh acts. Fresh acts, besides evidencing, on an occasion such as this, the impotency of the authority that made the former ones, make, on every occasion, fresh confusion, and fresh fees. Fresh acts make the pot boil brisk in the little kitchen of the attorney: fresh acts make the cauldron boil brisk in the great victualling offices attached to higher fee’d as well as feefed situations. No: on any occasion there will not, on the part of lawyers in general, be any more objection to fresh acts, than on a particular occasion there was, on the part of Lord Melville, to the bringing in, and carrying into a law, a bill for preventing a paymaster of the navy from applying the money of the people to his own use. On these subjects the understanding has been general and constant. So far as the binding and punishing force of the laws bears upon men who neither are in power, nor are to receive protection from men in power, so far they are to be executed: so far as they would bear hard upon men who are in power, or under the protection of men in power, so far they are to be laughed at.
In a word—to employ a system of classification the nomenclature of which is become as generally intelligible as the principles of it have been generally pursued—“tinmen” and “great characters” form the two species into which, to this purpose, the genus of his Majesty’s subjects has been divided. What then is “the use of the law?”—Bacon, who started the question, talked about it and about it, but it was reserved for his successors to give a clearer answer to it. What is now the use of the law? To fall as a millstone upon the heads of “tinmen,” to stand as a laughing-stock to “great characters.”
Prospect of Redress.
“But, these remedies of yours, by what hands are they to be administered?—Lawyers? you will find none willing: Non-lawyers? you will find none able . . . . And when all lawyers and all non-lawyers are subtracted, how many have you left?”
I answer—to the difficulty of this remedy no eye can be more acutely or profoundly sensible than his are who thus ventures to propose it. But, under favour of the inexhaustible stock of varieties incident to the human character, causes of a psychological nature, inscrutable to human eyes, have manifested, now and then, their power, in the production not only of evil but of good; yea, and will continue to do so little by little: of good, in whatsoever shape good is at the same time conceivable, and in a physical sense practicable. In one age, A proposes: in another, B moves: in a third, C carries into effect. This is the rate at which reform and improvement travel, when the surveyors of the highways are lawyers.
Assuredly, had it been my lot to find myself in the place where motions are made, some five-and-twenty or thirty years ago, a motion for a real committee of justice would at least have stood upon the journals.
A committee of justice? Oh, yes: turn to the journals and there you may see—not a parliament in which you may not see—a committee of justice. In that place you may see it: but in that place you may as well content yourself with seeing it: for, until something which would be called confusion, take the place of that which is called order, you had better not expect, unless you are fond of disappointment, to see it anywhere else.
Regular as is the appointment of this regular committee, the functions of it compose a sinecure: a sinecure no less regular and profound, than if the Perceval allowance of £38,574 a-year (reduced, alas! to less than £13,000, we are told, by deductions that somebody or other knows of,* ) were attached to the situation of each of its members, in recompence for the labour of receiving the emoluments, added to that of being said, without being so much as supposed, to do the duties of it.
But when sinecures are gone, justice, with the committees necessary for her restoration, may then come.
Such is the state of things at present. Such will continue to be the state of things, until, in some shape or other, censure—prompt as well as impartial censure—not to speak of punishment—shall take place of tardy and disregarded laws:—of declaratory acts, and explanatory acts, passed some score or some half-hundred years after the acts, those acts that wanted not to be explained, but to be enforced, had, instead of being enforced, been trampled on by “great characters,” or explained and explained away—or, what is shorter, openly scorned and trampled upon by judges.
Whether law or tyranny reigns, is a question that will be decided by the notice or no notice taken in “high situations,” and eventually in low ones, of this grievance. Till now, the tyranny had a mask: but now the mask is gone.
Great zeal everywhere for the maintenance of subordination. Subordination! But of what sort? Not of that of which universal security is the fruit: but of that, by which, for the benefit of “great characters in high situations,” all but they, their confederates, instruments, and dependents, are kept in a continual state of insecurity and bondage.
Observing the House of Lords to have at length, by the continually increasing accumulation of causes, become, in respect of its appellate jurisdiction, converted into a sort of delay-shop, in which, in pieces of an indefinite number of years’ length, delay is sold to dishonest men with other men’s money in their pockets,—observing, moreover, the grievance to be to such a degree flagrant and notorious, as to have been publicly and repeatedly held up to view in the House itself, by the only persons by whom any plan of relief, it is universally understood, could, with any prospect of success, or, according to received notions, with any sort of congruity, be laid upon the table—in the month of January 1808, I took upon me to transmit to such of the Members of both Houses as could conveniently be reached, the outline of a plan (accompanied in every article with reasons,) which I had sketched out for that purpose, under the title of a “Plan of a Judicatory, under the name ofThe Court of Lords Delegates.”†
In my own mind, a still more important, though not an inseparable part of that plan, consisted in the transferring moreover, to the proposed judicatory, that part of the immediate jurisdiction of the House of Lords which consists in the cognizance of impeachments: the decision of the delegates in those cases to be final, unless reversed or modified by the House at large, on the declared ground of censurable misconduct on the part of those their delegates.
The main principle, on which this plan was grounded, was no other than that which, whether ever expressed or no in words, will in substance be found to have served as the main principle of the Grenville act; viz. that the sense of responsibility, without which there can be no tolerably adequate security either for probity or intelligence, is less and less acute and operative, in proportion as the number of those whose share in it is extensive.
It was at this price only, as it seemed to me, that impeachment, already proclaimed in parliament as having sunk into an empty name, could be restored to that character which it was originally designed, and till of late was universally supposed, to possess, and which at different times it has in some degree possessed, viz. that of serving as a check upon political delinquency in “high situations:” and this, without consuming in judicature any part of that time which is so habitually found insufficient for the still higher and more important functions of legislation: to the end that the judicial authority of the country might upon occasion be employed in checking, removing, and in case of need even punishing, instead of being, as at present, exclusively and avowedly employed in protecting “unfitness” on the part of “great characters” in high “situations:”‡punishment being reserved for such low people as, having the misfortune of suffering from such “unfitness,” have the audacity to complain of it.
Of a censorial tribunal so constituted, what did not present itself to my view as the least important use, was—the application of a check to that corrupt despotism, to which, as above, except in name and empty show, there exists not at present any check, viz. the despotism of the judges.
Not only in my own mind, but in my own papers, the plan had in it yet other parts, the object of which was to invest the Lords, by the instrumentality of these their appointed and periodically removable delegates, not only with the power, but with the interest (without which power is nothing,) that seemed necessary to engage and fix them in the habit of rendering to the community certain services, which, by the necessary changeableness of its composition, the House of Commons is disabled from rendering with equally assured steadiness and perseverance:—one of these services being the instituting and keeping up an uninterruptedly periodical series of returns and accounts, expressive of the state of the system of judicial procedure, under a set of pre-appointed heads, embracing the whole field of judicature, and bearing specific reference to the several distinguishable ends of justice: the other, the taking occasion of such causes as should come before this judicatory in the way of appeal, to facilitate the gradual conversion of the rule of action, out of the purely conjectural, tenorless, uncognoscible, and impostrous state of unwritten, alias common law—the shapeless production of a set of note-takers, compilers, and publishing booksellers—into its only cognoscible, determinate, and unimpostrous state, viz. that of what is called written or statute law: the joint and genuine work of the king, the lords, and the delegates of the people.
For such plan, no efficient acceptance could either be expected, or so much as wished, if by the establishment of it the preponderant weight and influence of the more essential branch of the constitution were exposed to any danger of being lessened: but, that no such danger could attach upon it, could easily, and would have been actually, put out of doubt.
That, in the opinion of leading persons of opposite parties, the above plan, (meaning of course such part of it as had in the above paper been presented to view) possessed a claim to serious attention, was a fact of which I found reason to make no doubt: and, on one part, such and so public was the opinion expressed concerning it, as to render it evident, that in one event, nor that altogether an improbable one, should the same opinion continue to be entertained of it, the establishment of it would be but a natural consequence.
Had the expression of such opinion been in any instance addressed to, or accompanied with any such intimation as that of a desire that it should be, or a thought that it would be, communicated to the person whose proposal was the subject of it, the communication might have been ascribable to that sort of civility, from which any serious thought about the matter is not always to be inferred: but the communication having in every instance been the result of mere accident, clear of all design, and probably to this hour not merely unheeded but unknown, the real existence of the opinion is in each instance but so much the less exposed to doubt.
In one instance, my satisfaction would, I must confess, have been more entire, if, when reflecting on past occurrences, it had been in my power to assure myself, that that part of the plan which by the author had been regarded as a drawback, though that an indispensable one, from the mass of advantage expected from the institution, had not in other eyes constituted at least a principal recommendation of it.
But among those who are agreed about measures, it would be not only a useless but a pernicious refinement to look out for differences about motives.
Nor would any such topic have been touched upon, but that, regarding the proposed institution, as above, as capable of operating in the character of a highly useful, if not of itself a completely effectual remedy, to the political disease of which so much has just been said, the design of this work seemed to require, that of the plan in question such part as has already seen the light should now receive the same degree of publication as this work itself does; for which purpose, copies of it have now been transmitted to the publishers.
Of this increased publicity one consequence is—that in the mind of him by whom the observation shall have been made (and by whom will the observation not have been made?) that a necessary part of the plan consists in the creation of several new situations, of which some could not but be in a pre-eminent degree lucrative ones, a supposition too natural not to follow in a manner of course will be, that in this proposed mass of emolument, some share had been looked for by the projector: and that, in his mind, it was the advantage so looked for that had constituted—if not the sole, at least one, final cause—of the project. It therefore, as mankind are constituted, appears to me to be, if not absolutely necessary, at any rate highly conducive, to the unbiassed examination of the plan, to declare, as I do most distinctly, that in any emolument that ever was proposed, or may ever come to be attached to it, I never had, nor ever shall I have, any more concern, than any other person under whose eye the present page may be lying at this moment: and that, in the contrivance of it, no person by whom, for himself, or any friend of his, any expectation of any part in such emolument could have been entertained, has ever been consulted with: no person having been in fact consulted with upon the subject, either before the paper went into circulation as above, or since.
Not that the plan is in itself a whit the better, or the less bad, for a circumstance thus collateral and incidental to it: and should any plan for the same purpose ever be brought on the carpet by any other hand, the author may be assured, that no personal advantage that may be found included in it for his own particular benefit, or that of any of his friends, will by me be pleaded in bar to the acceptance of it. In my view of the matter, be the measure what it may, instead of a bar, any advantage accruing to an individual, constitutes, I must confess, a plea in favour of it. The indication of any such advantage coupled with the appellation of a job,—this argument, as it is a very easy and a very common, so is it a very commodious argument for such politicians as, being conscious of their inability to form any direct and specific estimate of the advantages and disadvantages of any plan which requires hands for the execution of it, have recourse to this circumstance in the character of an article of circumstantial evidence, and that conclusive, establishing, and that at so small an expense as that of a single word, not only the ineligibility but the corruptness of the measure:—but it will not pass in any such character with any man, who, being duly aware that, in all its branches, government consists but in a choice of evils—evils produced, that in each instance greater good may come—holds himself, on the occasion in question, not incompetent to the task of weighing the good against the evil, and determining on which side the balance is to be found.
Supposing the plan in question received, as above, in all its projected parts, the court of Lords’ Delegates would, without the name, add to its other characters that of a school, and that not only of judicature but of legislation: a school in which such of our noble youth (supposing any such to be found,) to whom the study might not, any more than the practice of that art does at present, appear beneath their dignity, might find the means of instruction as well as exercise: a school in which not only the exercise, but, by means of the exercise, the prizes, might, instead of remaining a monopoly in the hands of those whose interest it is that the body of the law be in all its points in as bad a state as possible, lie open to those also whose interest, in the shape of reputation and conscience, would on this occasion act in alliance with their duty, and whose interest would not, at any rate, be in any shape at variance with it.
Lastly, being occupied in preparing with all expedition for the press a work on parliamentary reform, in which, if my own conception of the matter be correct, the necessity of such a measure is placed beyond the reach of doubt, followed by a plan for that purpose, accompanied in each article with reasons, and answers to objections (a plan in the contrivance of which I saw but little reason to go in quest of novelty,) it seemed to me of use that it should be understood, and that most clearly, that to engage a man’s opinions and affections in favour of such a measure, no other propensity is necessary than a desire—not to pull down, but to uphold—not to wrest power out of the hands of present possessors, but to render them somewhat less generally and flagrantly inept than at present for, as well as disdainful of, the exercise of it: that so, when among those questions which sooner or later will inevitably be urged, this also should be put—viz. what are the occupiers of that room with the gilt chair in it good for, unless it be to serve as tools in the hands of the—general, who now and then comes in form and sits in it—a set of implements constituting, when put together, a clumsy piece of machinery for producing the effect of a simple negative—those to whom any such searching question happens to be addressed, may have some better answer at hand than what has been furnished by the threadbare and transparent fallacies that have hitherto been seen to be employed upon that service.
The Hospital of Incurables was a name invented for that great room—not by any such plebeian as myself, but by a noble practitioner (the Earl of Chesterfield,) to whose penetrating eye the condition of all the wards, with all the patients in it, had by long observation and experience been rendered so familiar. By him, as the name thus bestowed bears witness, the condition of the inhabitants was regarded as already desperate. For my own part, whether it be, that being more given to hope, and less to satire, as well as somewhat more accustomed to look out for expedients, than that veteran courtier, my judgment has been led astray by my affections, my views of the case are less desponding. As hospitals are apt to be, and as this in particular was once pronounced to be* —pronounced so by the inhabitants themselves when not half so numerous as at present—it appears to me, as it has done to others, too much crowded: in which case it is the less to be wondered at, if, of a species of vital gas known in the old nomenclature by the name of public spirit, a morbific deficiency should be found:—a deficiency, of which the principal effects and symptoms are an habitual lethargy and prostration of strength, admitting of no abatement but what may happen to be produced by the accidental pricking of some such stimulus as that of a canine appetite for fat sinecures. For the over-population, the remedy is too simple, as well as by those whom it concerns most nearly too well approved,† to need any further mention in this place. As to the public spirit, the apparatus for the injecting of it has been already indicated.
“SWEAR NOT AT ALL:”
FORMERLY OF QUEEN’S COLLEGE, OXFORD, A. M.
originally published in 1817.
[* ]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.
[* ]Eightpence, for example, was the allowance given to a juryman, as long ago as in the reign of James I. (see Part I. Chap. IV. § 1,) and we know not for what length of time before. Give him eightpence at this time of day, the allowance, besides being in name the same, may be a more or less proper one, but in effect so far from being the same, it is a very widely different one. And so, as often as money is concerned, and on whatsoever occasion and for whatsoever purpose mentioned—take, for example, qualifications for parliamentary electors.
[* ]The line of distinction being, in present as well as in all past times, so extensively as well as decidedly drawn—drawn in name as well as in correspondent practice—no objection can surely be raised against it, on any such ground as that of a tendency to keep alive and foment invidious distinctions. In these our fortunate islands, the yeoman of to-day being the future contingent gentleman of to-morrow, no such heartburnings have place between them, as in those countries in which a vast and unvarying gulph has place betwixt the two classes.
[† ]Half-and-half.] De medictate status, is the learned denomination, but for my part I prefer this English one: and this although it be, or rather because it is, so vulgar an one. In every part of the field of law, the interest, and thence necessarily the endeavour of all lawyers, has been to render the rule of action not only as uncognascible but as unintelligible as possible. Of every friend to mankind, the endeavour, it scarce need be said, will be the reverse. As to the science of jurisprudence, and the art of legislation, for teaching and learning these accomplishments, the aid of this foreign and extinct language may here and there perhaps be necessary: and necessity, so far as it exists, may, but nothing short of necessity ever can, justify any such use of it.
[* ]Where the length either of journeys or of demurrage is anything considerable, paying a juryman by the cause, neither could then be, nor ever can be, anything better than a very unequal plan of payment. For since it would commonly, if not always, happen, that the same juryman would have to serve in divers causes, therefore when, in the instance of any such occasional judge, the number of causes in which he served happened to be above the calculation (viz. the calculated number, in the expectation of which the fixation of the sum in question took its rise) he might be to a considerable amount a gainer: when below that mark, to a considerable amount a loser. Here then was a sort of lottery: but in respect of the balance in point of comfort, all such lotteries are disadvantageous upon the whole.
[* ]If human reason had been in use to apply itself to the subject of judicial procedure in general, and to jury-trial, considered as a part of it in particular, the multitude of persons subjected to vexation in this shape would never have been, for all causes without distinction, fixed at so large a number as twelve. But this is among the subjects to which as yet human reason has not been in use to apply itself: among non-lawyers, scarce any person, in point of intellectual acquirements, competent, in any degree, to the task, having found and felt in his bosom a particular interest, strong enough to call forth the application of them to the subject: and as to lawyers, acting all along under the impulse of a professional interest opposite in almost every point to that of the public in general, the disposition to endure inconveniences in all shapes without remedy, not the disposition to be on the out-look for remedies, is the disposition which, on all causes, it has been their study to keep up, and inculcate.
[† ]From the aggregate number of lawsuits which receive their decision in the course of a given length of time, the aggregate body of nonlitigants, in proportion as those decisions are, or are supposed to be, conformable to justice, derive gratis that security, which the aggregate body of litigants in those same suits do not enjoy but at the charge of the aggregate mass of vexation and expense attached to those several suits. (See Protest against Law Taxes.)
[* ]On the subject of what is called unanimity, my opinions have, in this very work, been already too plainly and strongly expressed to need repetition here. But the mention here made of so important a topic having been but incidental, I have not included it in form in the list of the changes here proposed. The subject being as yet far from exhausted, to do complete justice would require, as by its importance it would well warrant, a separate publication.
[* ]Viz. by 3 Geo. II. c. 25, § 8.
[* ]Fifteen hundred pounds I have heard mentioned as being, in one instance that happened not very long ago, the sum at the expense of which a verdict was obtained. According to the report, it was a case of life and death: the cause being an indictment for murder, and the money given by the defendant. The fact was mentioned to me as one that had become in a considerable degree notorious; but, having no means of forming any opinion concerning the truth of it, I forbear mentioning any further particulars, lest, the story being false, suspicion should by this means come to attach itself to this or that individual, in whose instance it would be injurious.
[* ]By 6 Geo. IV. c. 22 (20th May 1825,) the persons qualified as jurymen are summoned by the sheriff in rotation, and from them the individuals to serve on each trial are selected by ballot.—Ed.
[* ]Part II. Ch. V.
[† ]1 W. & M. sess. 2, c. 2.
[* ]Phillips, pp. 62 to 68.
[* ]See Scotch Reform, Letter I.
[† ]Incomprehensible as this pertinacity may appear on the face of it, the root of it may, I have been led to think, be traced to certain extortions that, so long ago as in the year 1777, were brought to light by Howard. The principal passages, extracted from his “State of the Prisons, &c.” 3d edition, anno 1784, pp. 15 and 16, are here subjoined. Between the extortions of that day as exhibited by Howard, and one of the oppressions of the present day as exhibited by Sir Richard Phillips, evidence of connexion having been observed, the display of it was at one time destined to form part of the present work: but the length of it being found altogether disproportionate, it has been necessarily discarded for the present, though on some future occasion it may perhpas find its place.
[* ]Instead of general utility, antipathy the ground of punishment—intensity of the antipathy the measure of punishment, retrospective, the application of it.
[* ]Hawkins, P. C. Vol. I. B. I. Ch. 31, § 60.
[* ]Ignorantia legis excusat neminem.
[* ]Finance Committee, anno 1808, Report 3.
[† ]Vide supra, p. 55.
[‡ ]See Part I. Chap. IX.
[* ]See Blackstone’s Commentaries, I. Ch. II. p. 152.
[† ]Ibid. “In the reign of King George I. a bill passed the House of Lords, and was countenanced by the then ministry, for limiting the number of the peerage.”
[† ]Incomprehensible as this pertinacity may appear on the face of it, the root of it may, I have been led to think, be traced to certain extortions that, so long ago as in the year 1777, were brought to light by Howard. The principal passages, extracted from his “State of the Prisons, &c.” 3d edition, anno 1784, pp. 15 and 16, are here subjoined. Between the extortions of that day as exhibited by Howard, and one of the oppressions of the present day as exhibited by Sir Richard Phillips, evidence of connexion having been observed, the display of it was at one time destined to form part of the present work: but the length of it being found altogether disproportionate, it has been necessarily discarded for the present, though on some future occasion it may perhpas find its place.
[a ]“The clerks of assize give to the judge large sums for their places. One of the present gentlemen gave for his place £2,500. On many accounts, these places ought not to be bought of the judges. If they were only presented, the fees might be much lower.”