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Jeremy Bentham, The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions) [1843]

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Jeremy Bentham, The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 5. http://oll.libertyfund.org/titles/1996

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About this Title:

An 11 volume collection of the works of Jeremy Bentham edited by the philosophic radical and political reformer John Bowring. Vol. 5 contains numerous tracts on legal reform and real property.

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Table of Contents:

Edition: current; Page: [i]
the WORKS of JEREMY BENTHAM,
published under the superintendence of his executor,
JOHN BOWRING.
VOLUME V.
EDINBURGH:
WILLIAM TAIT, 107, PRINCES STREET; simpkin, marshall, & co., london.
MDCCCXLIII.
Edition: current; Page: [ii] Edition: current; Page: [iii]

CONTENTS OF VOLUME FIFTH

  • SCOTCH REFORM; Considered with reference to the Plan proposed in the late Parliament, for the Regulation of the Courts and the Administration of Justice in Scotland: with Illustrations from English Non-Reform: in the course of which, divers Imperfections, Abuses, and Corruptions, in the Administration of Justice, with their Causes, are now, for the first time, brought to light. In a series of Letters addressed to the Right Honourable Lord Grenville, &c. &c. &c. With Tables, in which the principal causes of Factitious Complication, Delay, Vexation, and Expense, are distinguished from such as are Natural and Unavoidable, . . . . . Page 1
  • SUMMARY VIEW OF THE PLAN OF A JUDICATORY, UNDER THE NAME OF THE COURT OF LORDS’ DELEGATES, Proposed for the Exercise of those Judicial Functions, the adequate Discharge of which by the whole House has, for these six or seven years, been rendered confessedly impracticable, by want of time, 55
  • THE ELEMENTS OF THE ART OF PACKING, as applied to Special Juries, particularly in cases of Libel Law, . . . . . . . . . . 61
  • “SWEAR NOT AT ALL:” Containing an Exposure of the Needlessness and Mischievousness, as well as Anti-Christianity, of the Ceremony of an Oath: a View of the Parliamentary recognition of its Needlessness, implied in the practice of both Houses; and an Indication of the Unexceptionable Securities, by which whatsoever practical good purposes the ceremony has been employed to serve, would be more effectually provided for. Together with Proof of the open and persevering Contempt of Moral and Religious Principle, perpetuated by it, and rendered universal, in the two Church-of-England Universities, more especially in the University of Oxford. (Predetached from an Introduction to theRationale of Evidence,”) . . . . 187
  • TRUTH VERSUS ASHHURST; or, Law as it is, contrasted with what it is said to be, . . . . . . . . . . . . . . . 231
  • THE KING AGAINST EDMONDS AND OTHERS: set down for trial, at Warwick, on the 29th of March, 1820. Brief Remarks, tending to show the Untenability of this Indictment, . . . . . . . . . . . . 239
  • THE KING AGAINST SIR CHARLES WOLSELEY, Baronet, and JOSEPH HARRISON, Schoolmaster, set down for trial, at Chester, on the 4th of April, 1820. Brief Remarks, tending to show the Untenability of this Indictment, . . . 253
  • OFFICIAL APTITUDE MAXIMIZED; EXPENSE MINIMIZED: as shown in the several papers comprised in this volume, . . . . . . . 263
  • A COMMENTARY ON MR HUMPHREYS’ REAL PROPERTY CODE; Being a Review of “Observations on the actual State of the English Law of Real Property, with the Outline of a Code. By James Humphreys, Esq., of Lincoln’s Inn, Barrister.” 387Edition: current; Page: [iv]
  • OUTLINE OF A PLAN OF A GENERAL REGISTER OF REAL PROPERTY: Contained in a Communication to the Commissioners appointed under letters patent, of date the 6th June, 1828, to inquire into the Law of England respecting Real Property, and first printed in the Appendix to their Third Report, ordered by the House of Commons to be printed, 24th May, 1832, . . . . . . . . 417
  • JUSTICE AND CODIFICATION PETITIONS: Being forms proposed for Signature by all persons whose desire it is to see Justice no longer sold, delayed, or denied: and to obtain a possibility of that knowledge of the law, in proportion to the want of which they are subjected to unjust punishments, and deprived of the benefit of their rights, . . . . . . . . . . . . . . 437
  • LORD BROUGHAM DISPLAYED: Including, 1. Boa Constrictor, alias Helluo Curiarum; II. Observations on the Bankruptcy Court Bill, now ripened into an act; III. Extracts from proposed Constitutional Code, . . . . . . 549
Edition: current; Page: [1]

SCOTCH REFORM;
CONSIDERED WITH REFERENCE TO THE PLAN PROPOSED IN THE LATE PARLIAMENT, FOR THE REGULATION OF THE COURTS AND THE ADMINISTRATION OF JUSTICE IN SCOTLAND: WITH ILLUSTRATIONS FROM ENGLISH NON-REFORM: IN THE COURSE OF WHICH, DIVERS IMPERFECTIONS, ABUSES, AND CORRUPTIONS, IN THE ADMINISTRATION OF JUSTICE, WITH THEIR CAUSES, ARE NOW, FOR THE FIRST TIME, BROUGHT TO LIGHT.

IN A SERIES OF LETTERS addressed to THE RIGHT HON. LORD GRENVILLE, &c. &c. &c. with TABLES, in which the principal causes of factitious complication, delay, vexation, and expense, are distinguished from such as are natural and unavoidable.

OF LINCOLN’S INN, ESQ. BARRISTER AT LAW.

THE SECOND EDITION, WITH FOUR ADDITIONAL TABLES,

showing the abuses in cases of appeal.

london: 1, ridgway, 170, opposite bond street, piccadilly: 1811.

(first edition published in 1808.)

Edition: current; Page: [2]

ADVERTISEMENT.

The matter contained in the four following Letters, including the two sheets of Tables* subjoined to them, was written, it will be observed, at different times in the course of the years 1800 and 1807.

In the mean time, a variety of incidents has taken place, and the face of the whole business, as laid before Parliament, has undergone a variety of changes. But, as to the matter of the ensuing Letters, if there be anything in it that presents a prospect of being of use, that use will not be found to have received any diminution from any of those changes.

A continuation is in the press, comprising the originally proposed Chamber of Review; the two arrangements proposed, one or other of them, to serve instead of it, by the Lord President and ten others out of the fifteen Lords of Session; and the Bill said to have been laid upon the table of the House by the Lord Chancellor (Lord Eldon,) and printed by order, dated 10th August 1807.

In a separate work, is intended to be humbly submitted to Parliament, and in particular to the House of Lords, a plan for enabling the House to render, to suitors of all the three kingdoms, that justice, its inability of rendering which, has now for so many years been so severely felt by the public, and so explicitly acknowledged in the House.

A Summary View of the plan is already begun to be put into circulation.

Edition: current; Page: [a] Edition: current; Page: [b] Edition: current; Page: [3]

LETTERS TO LORD GRENVILLE, ON THE
PROPOSED REFORM IN THE ADMINISTRATION OF CIVIL JUSTICE IN SCOTLAND.

Lord Grenville
Lord Grenville

LETTER I.

My Lord,

In the account given in the public prints, of a speech of your Lordship’s, on the occasion of the proposed reform, “relative to the administration of civil justice in Scotland.” I observed a passage inviting suggestions from without-doors. Should these my humble endeavours be found productive of any useful lights, it is to that invitation that the subject will be indebted for them.

If Scotland feels, as no doubt she will, and does already, her obligations to your Lordship for the proposition itself, so ought the three kingdoms, with their dependencies, for the invitation coupled with it. In this they may behold a constitutional comment on the primitive text, de minoribus principes consulunt, de majoribus omnes: in this, the constitutional and only rational application of the principle of universal suffrage: information accepted from every source; suggestion, the work of the understanding, open to all; decision, the work of the will, confined to the comparatively few, among whom, without Polish confusion, it can possibly be shared.

According to the terms of the speech, as stated in the paper that lies before me, in the designation made of the persons from whom communications were called for, the members of the Scottish Bar were the only persons particularly mentioned. If, from the letter of the invitation, any such limitation could with propriety be deduced, it was doubtless because, at the moment, the situation so designated presented itself to your Lordship’s notice, as the only source from which, on such a subject, any useful information could naturally be expected. Deviations from the ordinary state of things could not, in so general a survey, have naturally been taken into the account. But as Africa of old was noted for physical, so have the British islands been in modern times for psychological singularities. Hence it is, that, so far as the habit of contemplating the field of law in the point of view in question, that of a field of reformation and improvement (the very point of view, in which, on the present occasion, it fell in your Lordship’s way to bestow a glance upon it)—I mean, so far as the length of that habit can be regarded as capable of aiding the effect, or supplying the deficiency, of other qualifications—neither the Scottish bar, nor any other description of persons, could probably afford a pen, the suggestions of which would be less exposed to the imputation of temerity, than these, how small soever may be their value, which are now courting the honour of your Lordship’s notice.

Two noble and learned lords, in whose wisdom and experience your Lordship finds, day by day, an ever-increasing treasure, wait on this occasion, as on all others, your Lordship’s signal for pouring out the stores of it. Some time before those illustrious persons had, either of them, begun to make his profit of the imperfections, or, as some would say, the abuses, with which the regular system of procedure is spotted, or of which, as some would say, it is composed, the obscure interloper, whose bow is now making to your Lordship, had made it the business of his life to inquire into the means of remedying them.

As to the measure itself, viz. that of endeavouring to infuse the spirit of reform into Scottish judicature, preceding administrations reckoned this, it seems, in the number of their velleities: what they had been thinking of doing, your Lordship has done.

In the sort of relation your Lordship bears to the measure, I find a relief from an unpleasant difficulty. In your Lordship it beholds its patron and introducer; the author, it is matter of ease to me not to know. To the Athenians their legislator presented (such was his plea) the best of all plans that would have been borne with: to Scotland, under a most crying urgency, Lord Grenville presents the best, or perhaps the only plan that was to be had.

As to the general complexion of the plan, to prevent temporary misconceptions, permit me, my Lord, to submit to your Lordship, at this early period, the general result of my researches, in two very simple propositions: that in point of utility, there is enough in it to afford an ample justification to the provisional acceptance your Lordship has been pleased to give to it: that at the same time, when minutely sifted by a not unexercised hand, and with that continuity of attention Edition: current; Page: [4] which it was impossible, in your Lordship’s place, to spare for it, it will be found to fall extremely short of the professions, and perhaps expectations, of the learned author, not to speak of your Lordship’s indubitably sincere and generous wishes and intentions.

In the track of improvement, by a rare coincidence, for a certain part of the way, the interest of the suitor, that is, of the community at large, and the interest of the lawyer, happened to go hand in hand:—just so far I observe the interests of the community really pursued. But, a little further, the interests divide: and there it is that I see that separation taking place, which, in my view of the matter, could not but take place, the interest of the community pursued in demonstration only—the opposite interest of the lawyer being carefully protected, and even advanced, in reality and effect.

Before I proceed any further, I find myself under the necessity of stating a little personal incident, the mention of which would not have been thus obtruded on your Lordship’s patience, but for its indissoluble connexion with the present enterprise. Your Lordship’s invitation found me employed in putting, as I had flattered myself, the last hand to a work of a somewhat new complexion on the subject of Evidence; a work which, though of greater bulk than I could have wished, was itself but an off-set of a still larger one, not wanting much of its completion, and designed to give a comprehensive view of what, in that extensive subject, taken in all its branches, appeared fit to be done in the way of law. Of that off-set, the object was—to bring to view the reasons, by which I had been satisfied that whether the Roman, the English, or any other system, were resorted to, the established rules of evidence, occupied principally in putting exclusions upon the light of evidence, were, almost without exception, adverse to the ends of justice; a conclusion facilitated, in no small degree, by the observation, that there is not one of them, in English practice at least, that is not departed from, and, without inconvenience or suspicion of inconvenience, set at naught, and that for reasons that can have no weight or truth in them, on any other supposition than that of the impropriety of the rule, in every instance in which it is observed.

In looking for the causes of this inconsistency (for where, in the department of legislation, a full light has been thrown upon a subject, causes are a topic that can never have been passed by,) I saw reason to suspect—and that reason gaining strength at every step—that what at first view had presented itself as the result of primeval blindness and imbecility, was referable, perhaps, in a certain degree, to those causes, but probably in a much higher degree to sharp-sighted artifice; that to enable themselves to extract from it that profit which constituted their recompense and inducement for taking their part in it, and that with as much case to themselves as the task of gathering in the profit admitted of, it was necessary for the founders, and successive supporters of the system, to give to it a direction, opposite at every turn to the ends of justice; that among the leading features or main pillars of this system, were the exclusions put upon the most instructive and indispensable sources of evidence; and in regard to such information as was not in itself excluded, the preference given to a variety of artificial and less trustworthy shapes, in which they found means to clothe it, to the exclusion of the more natural and more trustworthy; but that these were but a part of a numerous and complicated system of devices, all tending to the same altogether natural, but not the less sinister end: and that, in a word, on these points, as on all others, the reason why the system was and is so bad as men feel it rather than see it to be, is, that the power found itself in company with the interest, and consequently the will, to produce as bad a system as the people, with the legislature at their head, could in their primeval, and as yet but little ameliorated, state of relative ignorance and helplessness, be brought, by the utmost stretch of artifice, to endure.

Thus it was, that the delineation of the instruments employed in the planting and culture of the predominant system (I say predominant—for there exists another of very different complexion, of which presently, and which, howsoever overpowered, has nowhere been altogether killed by it,) constituted a sort of episode, though, for the full comprehension of the subject, not an unnecessary episode, to the work having for its main subject the exclusions put upon evidence. Finding, then, in the system of reform put into your Lordship’s hands, what I could not but expect to find in it as a matter of course—that the profit and ease of the man of law were as carefully provided for as ever, the interests of the people, in their character of suitors, as completely sacrificed as ever to those original, and, with reference to the man of law, so much nearer objects—and that all the advantage given to the suitor was that comparatively small, though in itself not inconsiderable portion, in which the licensed plunderer would be a sharer with him: finding, in a word, that of all the devices above spoken of, there was not one, the full mischief of which was not reserved to the suitor, the full benefit, to say no more, reserved to the man of law, it was my original intention, for the more complete elucidation of the proposed plan of reform, and the resolutions by Edition: current; Page: [5] which the outline of it is delineated, to have subjoined the episode above mentioned—a sort of picture of the law of procedure—by way of appendix to this address. But this picture not being yet in a state of complete readiness for the press, and at the same time the bulk of it (according to the measure taken of it by my fears) too large for the proportion of your Lordship’s time, which, even upon the most sanguine calculation, could be expected for it; the only feasible course seemed to be to submit to your Lordship, instead of the picture itself, a sort of table of the contents of it; a table bearing about the same relation to the work at large, as in the case of those rude sketches, which, according to panorance [Editor:?] custom, are distributed for the accommodation of the curious, whose visits are received or expected, for the picture of the chief seat of Scottish judicature as exhibited in Leicestersquare, for the purpose of assisting their recollections or anticipations.

In Scotland, as in England, and elsewhere, the system of judicial procedure has been, in the main, the work, not of legislators but of judges: manufactured, chiefly in the form—not of real statutory law—but of jurisprudential law:—imaginary law, consisting of general inferences deduced from particular decisions. By primeval indigence, and inexperience on the part of the sovereign, judges left without salaries, but left with power to pay themselves by fees. Hence, as will be seen, a constant opposition between the ends of justice, and the ends (the original, and thence the actual ends) of judicature.

Proper direct end or object of the system of procedure (or adjective branch of the law,) giving execution and effect to the predictions delivered, to the engagements taken, by the other branch, the main or substantive branch of the law: viz. by decisions pronounced in conformity to it.—Direct ends of justice, prevention of misdecision (decision unconformable to the regulations and arrangements belonging to the substantive branch of the law,) and failure of justice. Failure of justice the same thing in effect as misdecision to the prejudice of the plaintiff’s side, but taking place without decision, and, for want of it, frequently without legal demand made, and for want of it.—Collateral ends of justice, prevention of delay, vexation, and expense, in so far as superfluous, or preponderant (viz. over the mischief from misdecision or from failure of justice.) Misdecision, when to the prejudice of the defendant’s side, may be considered either as comprised under the head of vexation, or as constituting a separate head of collateral inconvenience, and the prevention of it as constituting a separate end of justice.

Interest of the people, in the character of suitors, perpetual and complete fulfilment of the ordinances of the substantive branch of the law (the utility of which must, on this occasion, be assumed,) and thence of the direct ends of justice. Interest of the judges (the authors of the system of procedure,) maximum of profit and ease; profit, as much as could be extracted, with as much ease as was consistent with the extraction of it.

Profit and ease increased by the same cause—the increase of the aggregate quantity of fees. Justice thus denied to the poor, to the labouring classes, to the great majority of the people, as being unable to pay the fees; thence the trouble of administering justice to them saved.

Limits set by various causes to the quantum of the fees exigible on each occasion: aggregate of fees thence not otherwise increasable, than by increasing the number of the occasions on which fees were exacted: factitious delay, vexation, and expense, the results or accompamments of the increase so given to the number of those occasions. Aggregate mass of judges’ profit, increasing with the aggregate mass of delay, vexation, and expense; hence the actual ends of judicature, the interests, and consequently the exertions of judges, maintained in a state of constant opposition to the interests of the people, and the ends, viz. thus far only the collateral ends, of justice. But, from delay, vexation, and expense, result, in various ways, failure of justice, and misdecision, to the prejudice either of the plaintiff’s side or the defendant’s, whichever be in the right: hence a complete and constant opposition between the ends of judicature, and the aggregate of the several ends of justice.

Multiplication of the occasions of extracting fees, the cause of factitious complication, intricacy, obscurity, unintelligibility, uncognoscibility, in the system of procedure. By this complication a sort of sham science produced, and with it, on the part of the suitors, the necessity of having recourse to the members of a distinct class or fraternity thus raised up, sole professors of that science, and of the arts belonging to it. Profit of these professional, as well as of the official, lawyers, arising out of the mass of factitious delay, vexation, and expense, and increasing along with it, the profit of the one class going hand in hand with that of the other. Hence the closest community and general identity of interests;—a virtual partnership, which may be called the law partnership—with the judges, as managing partners, at the head of it.

On the part of malâ fide suitors on both sides (suitors conscious of being in the wrong,) an interest in increasing the quantity of factitious delay, vexation, and expense: this mass of abuse their only instrument to work with; employed by malâ fide defendants for staving off, and oftentimes finally eluding, compliance Edition: current; Page: [6] with the just demands on the other side: by malâ fide plaintiffs, for forcing compliance with unjust demands, or, on the occasion of some trifling demand, gratifying enmity, by the distress or ruin of the object. Community of interests thus effected, between malâ fide suitors, i. e. dishonest men in general, and the members, official and professional, of the law partnership.

Malâ fide cause, a cause in which a party on either side is in malâ fide. Proportion of malâ fide to bonâ fide causes, in some instances as great as that of 89 to 1. In England, the Exchequer Chamber an authoritatively reported and notorious example.

Truth, the handmaid of justice; mendacity, of injustice. Interest which the judges had and have, in encouraging to the utmost the vices of mendacity on the part of suitors, that is, of the body of the people. Propensity to injustice being the source of malâ fide suits, and malâ fide suits still more profitable than bonâ fide suits, hence the interest which the partnership has, in placing and keeping in a state of corruption this the most important part of the morals of the people. Injustice being the great source of lawyers’ profit, hence love of injustice, hatred of justice, passions unnatural to all other men, natural to lawyers of all classes. The lawyer, but more particularly the judge, being under the constant necessity of concealing his passions and vices, as well as the interests by which they are generated—of cloaking the vices under the semblance of the opposite virtues—hence, under the influence of the still-existing mode of remuneration, insincerity, hypocrisy, and lawyercraft, become natural, and in a manner necessary, to the appointed guardians of the public morals.

A man being the better qualified for concealing his own vices from others, the more perfectly he has succeeded in concealing them from himself, hence a sort of imbecility—a relative and partial imbecility—a disease of the understanding:—another vice endemial among lawyers. Hence a general propensity and aptitude, to mistake for justice the injustice by which they profit.

Fees thus rendered the matter of corruption. Various channels, some open, some more or less disguised, through which this matter has been taught to flow, into the pocket and bosom of the judge. Examples:—Receipt propriâ manu;—Sale of a fee-yielding office for full value;—Fine or bonus on admission;—Fee-yielding office given in lieu, and to the saving of the expense, of other provision for a son, or other near relation, or dependent, he doing the duty—or else not doing the duty, but paying a deputy;—Fee-yielding office given, or the profit of it made payable, to persons standing as trustees for a principal, declared or undeclared; if undeclared, supposed of course to be the judge himself.

Under this state of things, the members of the law partnership, natural and irresistible enemies of the rest of the community. Judges, and the other official members, reconcilable enemies: reconcilable, viz. by the substitution of salaries to fees; but not unless the conversion extends, without exception, through all the offices: on these terms, and on these alone, would the partnership be dissolved. The professional members, enemies absolutely irreconcilable; because professional profit admits not of any such compensation. The moral diseases endemial to this branch of the partnership, not, like those of the other, capable of a complete cure:—but yet of a very considerable remission; viz. by cancelling the mendacity-license, granted at present to them and their clients, in the manner explained below.

Were the mass of suffering, inflicted on the people by delay, vexation, expense, and consequent misdecision, as above, no more than equal to the mass of enjoyment accruing to the law partnership by profit gained, there would be no use in the substitution of salaries to fees; no use in rescuing non-lawyers from oppression and pillage under lawyers. But, besides that the sum being given, and circumstances on both sides equal, enjoyment from gain is never equal to suffering from loss; and that the portion which, being added, converts affluence into opulence in the hands of the lawyer, being taken away, converts, as to the greatest part of it, indigence into absolute ruin, in the person of the distressed debtor, and his frequently no less distressed creditor; that part of the factitious expense which goes to the account of lawyers’ profit, is but a part, and that commonly but a small part, of the whole loss, exclusive of the other evils that accompany it. Hence, although (which is impossible) professional lawyers’ profit were to be done away altogether, the welfare of the whole community, lawyers and non-lawyers included, would in a prodigious degree be promoted by the change.

Separately taken, so minute in many instances are the parcels in which the matter of corruption, in the shape of fees, flows into the pocket of the judge, as to be, to appearance, incapable of creating any efficient sinister interest, in a bosom so strongly strengthened against its influence by remuneration in the shape of salary: but, the degree of seductive force, being as the quantity of the aggregate mass, and not affected by the minuteness of the component parts, this minuteness serves but to disguise the force of the seduction, without diminishing it.

System of procedure generated by the influence of this sinister interest, the technical or fee-gathering system: technical, from its Edition: current; Page: [7] nature; fee-gathering, from its object and its cause. Courts in which this system is acted upon, courts of technical procedure. Technical procedure, styled at present regular: courts in which it is acted upon, courts of regular procedure.

System of procedure, which has for its object the ends of justice, and for its model the course naturally pursued for the discovery of truth and administration of justice, as towards children, servants, or other dependants, in the bosom of a private family, the domestic or natural system of procedure; requiring nothing but appropriate powers for the extension of it, with its benefits, over the whole field of political judicature: to which head belong, in some, but not in all instances, the modes of procedure, which at present, in contradistinction to regular, are designated by the name of summary. Courts in which this system is pursued, Courts of Natural Procedure.

System of technical procedure, the work of judges, executed by them in the form—partly of statutory law (as in the case of English rules and orders, Scotch acts of sederunt, &c.) partly of jurisprudential law—with or without occasional patches in the form of statutory law, stuck on by the hand of the legislator, but mostly under the guidance of the members of the law partnership, official and professional, co-operating in concert; consequently under the influence of the sinister interest, opposite, as above explained, to the interests of the community and the ends of justice.

System of natural procedure, the work of the legislator, the legitimate and acknowledged legislator, acting in pursuit of the interests of the community, and the ends of justice.

Courts in which the system of natural procedure is exclusively or principally pursued—In criminali, the courts martial and preparatory courts of inquiry, in both branches, land and maritime, of the military service: in criminali minori, courts composed respectively of commissioners in matters of excise, customs, stamps, assessed taxes, hawkers and pedlars, London hackney coaches: in criminali minori et civili, the courts composed of justices of peace, acting singly or in numbers, disengaged from the technical trammels which await them in their periodical great sessions: in civili, the courts of requests called courts of conscience, the courts composed of commissioners in matters of bankruptcy; the courts, primary and of appeal, recently instituted for the collection of taxes on property and income; the arbitration courts, composed of judges nominated by the parties, but acting under powers given to them by regular courts, by authority from statute-law.—In Scotland, the courts composed of justices of the peace, sitting in periodical sessions, but acting summarily under the name of small-debt courts: in ci-devant France, the consular courts, courts composed of mercantile men, sitting on causes of a mercantile nature: in the Danish dominions, the recently established, more extensively operating, and justly celebrated reconciliation courts.

With us, again, in a higher sphere, the committees of either House of Parliament, sitting in the character of courts of inquiry: the several courts instituted of late years by the legislature for such a variety of purposes;—settlement of public accounts—liquidation of claims—investigation of abuses, or other objects of reform;—and, though last mentioned, yet not least, that noble and necessary bulwark of the constitution, which owes to your Lordship’s illustrious father its existence and its name.

Were it on this occasion worth while, other cases might be found, in which justice has broke loose from the shackles forged for her in the cavern of chicane; but these may, I should hope, suffice to prove, and to the conviction of all but those who, by interest or interest-begotten prejudice, stand bound never to be convinced, that in no sphere of judicial inquiry, from the lowest to the highest, can the charge, either of impracticability or dangerousness, attach upon the honest pursuit of the ends of justice, by the light of common sense.

But the further this only honest system is from being either dangerous or impracticable, the more complete (as I flatter myself your Lordship will perceive) the moral impossibility that any further extension of it should meet the wishes, or so much as the endurance, of the man of law:—a system under which there is no factitious delay, vexation, or expense; nor consequently factitious profit, parcel of that expense; in which misdecision is but an accident, instead of being, as under the hitherto predominant system, a frequent and probable, not to say predominantly probable result, prepared by the operation of a variety of assignable, and peculiarly appropriate causes: a system under which failure of justice can scarcely find a place, instead of being, as under the predominant system, in virtue of the arrangements taken for the reconciliation of ease with profit, the inevitable lot of the great body of the people.

Devices, a denomination that may serve to characterize the several arrangements, principles, and practices, peculiar to the technical system, in contradistinction to the natural; all of them being so many modes of action, conducive at any rate to the ends of judicature; and therefore, upon the face of them, contrivances suggested by the desire of giving to the greatest practicable extent, fulfilment to those sinister ends.

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Follows a list of those devices. For greater perspicuity, two columns are placed side by side, one containing a brief designation of the device, the instrument of technical procedure; the other, the correspondent state of things under the natural system of procedure.

Logically speaking, the quality of the natural system will be seen to be chiefly of the negative cast; constituted by the absence of those devices, which constitute so many characteristic features of the technical system.

The arrangements here referred to the natural system, are—partly so many arrangements actually in use and practice in the courts of natural procedure, in some, in most, or in all of them,—partly so many ulterior arrangements, such as, being conducive to the ends of the natural system, that is, to the ends of justice, would be necessary, to the purpose of giving, to the power and beneficial influence of the natural system, an extent commensurate with that of the whole field of judicature.

In the work at large, under the head of each device, explanations are given, where they appeared necessary, under four subordinate heads:—nature and description of the device; examples of the employment given to it in the established system; its repugnancy to the ends of justice; its subservience to the ends of judicature. These elucidations, all of them applicable to the English, most of them (but, happily for Scotland, not all of them) applicable to the Scottish, modification of the technical system, pruned and sheltered by your Lordship’s learned adviser, would occupy too much room here, but remain, upon occasion, at your Lordship’s command at any time.

I.: Arrangements of Natural Procedure.

1. At the outset of the cause, and afterwards, where necessary, the parties, willing or unwilling, heard in the character of witnesses as well as parties, face to face; except in so far as, by reason of distance or otherwise, such confrontation and mutual explanation is, physically or prudentially, impracticable; prudentially, i. e. without preponderant mischief in the shape of delay, vexation, and expense: preponderant, viz. over the mischief in the shape of increased danger of misdecision, for want of the security against deception, afforded by such personal appearance, and consequent explanations and examinations; such conjunct appearance, preceded or not by ex parte appearance of the plaintiff, according to the nature of the case.

2. By or in the name of a party, no writing except in the character of evidence; nor in that character, except in the shape of minutes taken of the vivâ voce testimony, delivered by the parties respectively on such their personal appearance as above, when either party thinks fit provisionally to take upon himself the necessary expense: or where testimony in the ready-written form becomes necessary, either in the character of a supplement or that of a succedaneum to vivâ voce testimony, as per article 3. For the use of printing as a succedaneum to writing in the case of the instrument of demand, see article 11.

3. Testimony received in none but the best shape: viz. vivâ voce testification, subject to counter-interrogation, ex adverso and per judicem: except in so far as the necessity of time for recollection, arrangement, investigation, perusal of written documents, &c., requires a supplement in the form of ready-written testimony; or the impracticability (physical or prudential) of personal appearance produces a demand for testimony in that written form, in the character of a succedaneum; subject always to counter-interrogation, in the written form and mode (the epistolary mode,) in the first instance, and eventually in the vivâ voce form besides.

4. Tribunals within reach; consequently distributed over the country as equally as possible, regard being had to geographical circumstances, and to the state of the population at the time:—object to be aimed at, facility of repairing to the seat of justice (for the purpose of appearance coram judice as above, article 1,) and returning the same day, on the part of those whose abode is most distant from it.

5. After the first meeting, if the suit be not then terminated, as under natural procedure it actually is in the majority of individual instances, time or times for subsequent appearances and operations, settled pro re nata, regard being had to the disposable time of the court, and the convenience of all parties.

6. Sittings uninterrupted; as at the London police offices: or at short and equal intervals; as in the courts of conscience.

7. The cause heard from beginning to end by the same judge: he, by whom the evidence has been collected, deciding upon it the instant the collection is completed. Division of jurisdiction (a few cases excepted for special reasons) performed purely on the geographical, not on the metaphysical (or say logical) principle. No such distinction, as between pleas of the crown and common pleas; between law and equity.

8. No decision, but upon appropriate grounds; viz. on the joint consideration of the law (the article of substantive law in question) and of the evidence:—of the tenor of the law, where it has a tenor, as in the case of real, i. e. statutory law: of the purport, i. e. supposed purport, as in the case of imaginary, sham, fictitious, i. e. jurisprudential law.

9. No decision, but upon the merits, as above.

10. Not a syllable ever received from any person, witness or party, vivâ voce or in writing, without a security for veracity, equivalent to that which has been attached to the ceremony of an oath, or to whatever is provided in the case of an extraneous witness.

11. The general nature of the plaintiff’s demand, and of the grounds on which it rests, in respect of title, in point of fact as well as law, consigned, as far as consignable, to printed forms: and so in regard to the defence: the allegations individualized, by names, places, times, &c., inserted in the blanks: as in the forms provided by divers statutes, and those given in Burn’s Justice: the demand, viz. the payment or other service demanded at the charge of the defendant through the intervention of the judge, and the ground or grounds of the demand, in respect of title (events or situations, collative of the right) on the one hand, and (the defence not consisting in mere denial) the grounds of the defence in respect of counter-title (events or situations, collative of the defendant’s right) bearing reference to corresponding articles of the substantive branch of the body of the law, by which such effects are given to such events and situations as above: the substantive branch of the body of the law being so organized, as to qualify it for being made the subject of such reference.—N. B. Reference thus made to the tenor of the law, supposes the rule of action to exist in the shape of real, not of sham law.

12. Means of securing forthcomingness, on the part of persons and things, for legal purposes, provided on an uniform and comprehensive plan, adapted to the advances made by the age and country in the arts of life: of persons, whether in the character of parties or witnesses: of things, whether in the character of subjects of property, and as such portions of the matter of satisfaction, as for injury, &c. or sources of evidence: with diversities, adapted to the condition of the person, the nature of the thing, the purposes for which, in each instance, the forthcomingness is requisite.

13. The parties once met in the face of the judge, a plan of intercourse settled between them, to continue so long as the suit continues:—the intercourse to be carried on, in the promptest, least expensive, and most certain mode, that the state of society at the time affords: the arrangements of the letter-post accordingly adapted to judicial, as already they are so conveniently adapted to commercial purposes.

In regard to notice, sole question, received or not received? If not received, the failure, is it the result of pure misfortune, or of blame? If of blame, on the part of whom?—of him from whom, or of him through whom, it should have been received?

14. Neither time nor place exempt from the remedial power of justice:—exemption none, on any other ground than this; viz. that, in the individual case in question, the vexation, necessary to secure forthcomingness, would be an evil, preponderant over the evil attached to the failure of justice.

15. No incidental application to the judge, but by the party himself on whose behalf it is made:—the testimony on which it is grounded, being delivered, as in other cases, vivâ voce, to the judge, or in the form of affidavit evidence: but in this form, only where the ground of the application comes within some case in frequent occurrence, and as such provided for by printed forms:—the affidavit-maker (deponent) remaining subject to examination in the vivâ voce mode, with or without the previous intervention of the epistolary mode (as per article 3.) The demand for incidental applications, being mostly factitious, fabricated under the technical system, by blind fixation of days, and so forth, will mostly be anticipated, by the explanations, produced of course, by the initial meeting coram judice.

16. Language of the instruments as familiar as possible: composed, as far as possible, of words in ordinary use: terms not in ordinary use, employed as sparingly as possible, and then never without explanations composed of terms in ordinary use.

17. Truth, unremittingly and exclusively sought for:—truth, the whole truth, and nothing but the truth. Falsehood, from no person, on no occasion, wilfully endured, much less uttered, by the judge.

II.: Corresponding Devices of Technical Procedure.

1. Parties excluded, from first to last, as effectually as possible, from the presence of the judge: in English practice, not admitted till the trial or other ultimate hearing: nor then, but because the court being open to individuals in general, parties may, if they please, come in with the rest:—an exclusion thus put upon that species of evidence, which, in respect of its source, is in general most instructive, and would most frequently supersede the necessity of having recourse to other evidence, putting an end to the suit within the same day that gave commencement to it. Uses of the initial meeting, as well for prevention of delay, vexation, and expense, as for security against mis-decision, stated in detail.

2. Abuse of writing, pushed to the greatest endurable length:—in English practice, in respect of discourses, delivered in the name of the parties (see articles 10 and 11;) in Scotch practice, in respect of additional discourses, delivered (as in case of decreets) in the name of the court, containing useless repetitions, in tenor or purport, of discourses already delivered in the name of the parties: the abuse always carried to the same excess, without regard either to the importance of the cause, or the capacity of the parties to bear the expense.

3. Testimony received, in some cases, when it could not be helped, in the best shape, as on jury-trial, in English practice: but in others, in various inferior, but (to the partnership) profitable shapes, to the exclusion of the best shape; ex. gr. 1. Answers (in English equity) ready-written testimony, extracted from a defendant, by interrogation Edition: current; Page: [c] Edition: current; Page: [9] administered by the plaintiff’s lawyer, in the epistolary mode alone, when in the vivâ voce mode it might have been extracted with incomparably less delay, vexation, and expense, as well as better security against deception and consequent misdecision. 2. Depositions, i. e. testimony collected in the Roman mode (pursued in English equity, ecclesiastical, and admiralty practice; in Scotch practice, as well as that of the continent of Europe, as the ordinary mode;) collected vivâ voce, per judicem ad hoc, in secreto judicis, without counter-interrogation ex adverso; and thereupon the tenor, or purport, real or pretended, entire or castrated, pure or interpolated, consigned to minutes, with lawyers’ profit, increasing with their length. 3. Affidavit evidence, i. e. testimony ready-written, not subjectible to counter-interrogation, from any quarter or in any shape: in English practice, received, to the exclusion of every better shape, in every instance in which it was in the power of judges to receive it in this bad shape; viz. in bankruptcy petition causes before the chancellor, and in motion causes, principal and incidental (see article 15,) in all the courts: with lawyers’ profit, as above.

4. Tribunals put out of reach; viz. by the immoderate extent given (and in great measure by powers usurped by the metropolitan judges themselves) to the geographical field of jurisdiction of the metropolitan courts; partly for the purpose of rendering the burthen of attendance intolerable, and thereby forcing suitors into the hands of the professional members of the partnership, partly for giving in this way a forced increase to the multitude of profit-yielding suits. Instruments of usurpation, in English practice, pone and certiorari; in Scottish, bills of advocation. In both countries, primary jurisdiction thus usurped, in direct contempt of still existing acts of the legislature.

5. Blind fixation of times by general rules, excluding all regard to individual exigencies, in respect of nature and quantity of business to be performed, diversities of distance, &c.;—of times, not for personal appearance of parties (that being excluded,) but for exhibition of written instruments, and performance of other operations, by hireling representatives, connected by a common interest with the judges. Sinister use and objects of the fixation; necessitating applications for dispensation (as per article 15,) making business in that shape; creating occasions and pretences for nullification, as per article 9.

6. Sittings at long intervals; ex. gr.: terms, with intervals of from a few weeks, to almost five months: circuits, with intervals of six or twelve months; with no more than a few days, or a single day, allowed to a place, whatever may be the quantity of business.—Sinister Edition: current; Page: [10] uses—creating delay, to sell to the mala fide suitor; giving him an interest in availing himself of the principle of nullification, &c.; affording ease and holiday-time for lawyers; necessitating trials at subsequent times, in different modes, with fresh fees.

7. Bandying the cause from court to court, on a variety of pretences, before the decision is given; one judge to collect the evidence—to hear and receive the testimony—without power to decide on it; another judge to decide on it without having heard it. Sinister uses—making business, i. e. occasion for fees; making complication, thence confusion, uncertainty, uncognoscibility, materials for sham science, &c. &c. Examples:—In English common law, causes sent from King’s Bench, Common Pleas, or Exchequer, to Nisi Prius, or Assizes, and back again: in Equity, from Chancery, or Exchequer, to town examiners’ office, or country commissioners, and back again: and from the superior to a subordinate judge:—In Scottish practice, vibrations between the provincial courts and the metropolitan; and in the metropolitan, between outer and inner house: in both, as well as in the provincial courts, between the deciding and some evidence-collecting judge.

8. Decision without thought, and upon mechanical principles: a consequence, and sinister use, of blind fixation of times; the judge knowing nothing of the cause, nor of the grounds of the decision to which he lends his authority: the party ruined, because his lawyer failed to comply with an intimation impossible to be complied with, or never made: pretence, the presumption that the party on whose side the failure is, is in the wrong: whereas, under the load of factitious expense, compared with the pecuniary faculties of the bulk of the people, inability through indigence is a cause much more probable. Imprisonment for debt, on mesne process, that is, before judgment, for an unlimited time, perhaps for life, one of the exemplifications of mechanical judicature: the judge, with his profit upon the jail, and upon the instrument of arrestation, sanctioning it by his signature; refusing to see either party, for fear of being obliged to see, either that there is no ground for this affliction, or no necessity for it: while, under natural procedure, a justice of peace, having no profit on any jail, never subjects a man to any such affliction, but for a limited time, nor without seeing both parties, and thence satisfying himself on both these points. Outlawry, another instance: any man, who is abroad, consignable to ruin, for non-compliance with a demand, of which it has been rendered impossible for him to be apprised: his property a prey to professional and official men, to the number of a score and upwards.

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9. Principle of nullification; decision on grounds avowedly foreign to the merits:—a mere cloak for iniquity, and that a threadbare one, in every application made of it, the suitor punished for the failure, real or imaginary, of his lawyer. Sinister uses, making two causes out of one:—encouragement to malâ fide suitors, never to regard the worst cause as desperate:—arming judges with an instrument of arbitrary power: sufficient of itself to render the supposed checks illusory:—keeping up complication, confusion, uncertainty, uncognoscibility, matter of sham science, &c. &c.

N. B.—The use and benefit of this device carried, under the English branch of the technical system, to an extent altogether without example in any other, and in particular in the Scottish.

10. Mendacity licence;—to parties on both sides, a general permission of falsehood, granted by the judge, to extend so far forth as may be necessary to the giving birth and continuance to malâ fide demands and defences:—for this purpose, by a distinction purely factitious, allegations distinguished into pleading, and evidence: the licence granted to pleadings, denied to evidence:—in English equity practice, the licence withdrawn, but from the defendant’s side alone, for the purpose of giving birth to such suits as could not have been instituted, but on the prospect of his evidence: the permission of mendacity, backed to a great extent by compulsion, in both branches (law and equity) of English practice:—in that, and to a greater extent than in any other, the licence granted, moreover, by judges to themselves; and acted under (as in judicial writs and records), and to a vast extent, by assertions which, when they cease to work deceit and injury, do so by accident only, and in so far as their falsity has become too notorious to be any longer productive of this effect.

11. Pleadings, in writing, at common law, called special pleadings, whenever the reply, called for by the plaintiff’s declaration, is not understood to be comprisable under one or other of the four or five excessively abridged expressions, called general issues; altogether void of meaning, but by reference to demands, grounds of demand, defences and grounds of defence, never indicated: expressions imperfectly and discordantly understood by lawyers themselves, rendered completely and manifestly unintelligible to everybody else. Under favour of the mendacity-licence, the instruments so contrived, as to give little or no information, or worse than none: principal ingredients, falsehood, nonsense, and surplusage.

In default of the information, which the plaintiff’s declaration and the defendant’s plea Edition: current; Page: [12] thus profess and fail to give, a supplemental set of pleadings, invented within the last half-century, and employed, though not to an extent equal to that of the deficiency, under the name of particulars:—adding of course to delay, and profit-yielding expense.

12. Means of securing forthcomingness, subject to endless diversifications, drawn from the style and title of the court, and other irrelevant sources:—in detail, frequently oppressive; in the aggregate, scanty and inadequate:—forthcomingness of written evidence, for example, vainly aimed at, through a course of months or years (as by a suit in equity,) when it might be effectually secured in as many hours, by a warrant from a justice of the peace.

13. Chicaneries about notice.—In regard to notice, two objects:—viz. that he who should have received it, may not receive it, and thereupon suffer as if he had received it: and that, when conveyed and received, he who conveyed it may suffer as if he had not conveyed it. Ineffectual modes of conveying notice prescribed in the first instance, that business may be made by application for effectual ones. Modes of conveying, or pretending to convey notice, diversified ad infinitum, mostly on irrelevant grounds, such as the style and title of the court, and so forth. Question, not whether received or not, but whether good or bad:—not the less good for not having been received: not the less bad for having been received.

14. Asylums, local and chronological; with diversifications, grounded on the diversity of courts and other irrelevant circumstances:—the power of securing obedience to justice, confined in this case to the day-time, extended in that case to the night-time: confined in this case to week-days: extended in that case to sundays: one part of the empire rendered a place of security and triumph, to the delinquents of another.

15. Motion business;—all made-business:—business made by and for Judge and Co., by the exclusion of parties from the presence of the judge.

Money received for motions of course, so much money received on false pretences.

Occasions for motions not of course, made by defaults, real or pretended, the result of the blind fixation of times, seconded by the principle of nullification.

Motions not of course, always grounded on testimony, delivered in no other than the affidavit shape, and when opposed, and with Edition: current; Page: [13] counter-evidence, opposed by evidence in that same and no other shape. Motion business, including incidental motions and motion causes, almost peculiar to English practice.

16. Use of jargon; principle and practice of jargonization. Jargon, its shapes:—foreign language, obsolete language, technical language undefined, nonsense, fiction, ordinary language perverted:—its uses, to produce—1. On the part of the law, uncertainty, uncognoscibility, matter of sham science; 2. On the part of the non-lawyer, conscious ignorance, thence consultation and advice (opinion-trade,) or misconception, thence misconduct, litigation, lawyers’ assistance or vicarious service, with advice at every step; 3. On the part of the legislator, conscious ignorance or experienced misconception, thence disgust, or groundless awe, propensity to regard reform as hopeless, or undesirable; 4. In favour of the professional lawyer, monopoly of the faculty of succeeding to judicial offices:—as if a monopoly of the faculty of serving as boarding-schools to girls, were secured to brothels; or, of carrying on wholesale trade, to swindlers.—Analogy between jurisprudential and other jargons—astrology, palmistry, alchemy, thieves’ cant, &c.

17. Use of fictions; in the character of grounds and reasons. Fiction (in law) a wilful falsehood, uttered by a judge, for the purpose of giving to injustice the colour of justice. General uses of fiction to the partnership, (whether the decision grounded on it be otherwise lawful or unlawful) its uses in the character of jargon (as per article 16,) and (by holding up the vice of mendacity in an honourable light, in the character of a necessary instrument of justice) its efficacy, in the way of example, in corrupting the morals and understanding of the people. Special uses, the particular advantage, compassed on each particular occasion, by the injustice of which it is made the instrument.—Ex. gr. stealing conveyancing business, as, under English law, in the case of common recoveries; stealing jurisdiction, as in the case of the battle royal among the Westminster-Hall courts. English judicature polluted with this vice, to a degree altogether without example in the judicature of Scotland, or any other country upon earth.

18. Magnification of jurisprudential law, the work of judges, pursuing the partnership interest:—this imaginary law, represented as entitled to more respect than real law, the work of the legitimate legislator, pursuing, after appropriate and comprehensive inquiry, the interest of the people. Blackstone’s at tempt to pass off upon the people this sham law, as their work, sanctioned by their consent.

19. Contempt manifested, on all favourable Edition: current; Page: [14] occasions, towards real law:—sometimes by downright disobedience; sometimes by discourses, undervaluing it, and speaking of it as if less entitled to popular attachment and respect (as per article 18) than jurisprudential law.

20. Double-fountain principle:—a contrivance for exercising arbitrary power, by employing or rejecting, ad libitum, this or that one of the instruments of injustice above mentioned. Ex. gr. excluding the parties (as per article 1,) or admitting them:—receiving testimony in a bad shape (as per article 3,) or in a good one:—under the notion of stare decisis, applying the principle of nullification (as per article 9,) or, under the notion of liberality, refusing to apply it:—pursuing the fiction (as per article 17,) or refusing to pursue it:—in the case of an article of statute law habitually disobeyed, (as per procedure of the Scottish Court of Session passim) continuing or ceasing to disobey it.

DELAY AND COMPLICATION TABLES.—SHEET II.

TABLE I.—NATURAL SOURCES (a) of COMPLICATION (b) and DELAY in JUDICIAL PROCEDURE:—exhibiting the Causes of those Evils, in so far as they are natural, (c) necessary, (c) unavoidable; (c) with Examples, showing some of the principal Cases referable to the respective Sources.—TABLE II.—MISCHIEFS of DELAY.—TABLE III.—CAUSES of FACTITIOUS (c) DELAY:—containing a brief Indication of some of the principal Causes of the factitious, super-abundant (c), unnecessary (c), and avoidable (c) Delays, fabricated (c) under the TECHNICAL or FEE-GATHERING System of Procedure—in England, Scotland, and other Countries.—TABLE IV.—DISPUTABLE CAUSES of DELAY: i. e. of which it may be Matter of Dispute, whether, or how far, they are avoidable (c) or unavoidable. (c)—TABLE V.—BLACKSTONE’S FALSE CAUSES of DELAY; viz. Circumstances falsely stated by him as Causes of those English Delays, which, in truth, are factitious and avoidable, but by him are falsely styled “unavoidable.—TABLE VI.—Uses of the foregoing Tables.

TABLE II.

Mischiefs of Delay in Judicature.
I.—To the Prejudice of the Plaintiff’s Side. II.—To the Prejudice of the Defendant’s Side.
1. MISCHIEFS PRESENT: thence, CERTAIN, and COEVAL with the DELAY.
1. FAILURE OF JUSTICE: which, except in cases in which the Delay is unavoidable, is Denial of Justice; thence, 1. On the score of Failure of Justice—Mischief, none; but Advantage.
In cases, in which the subject-matter in demand is a determinate article of property, moveable or immoveable—LOSS OF THE USE, together with the enjoyment and profit attached to it. If the Defendant be in mala fide, this advantage, though correspondent to the Plaintiff’s disadvantage, is not equal to it: since the absence of the article imports to the Plaintiff so much loss; the presence, to the Defendant, only so much gain: the enjoyment from which, all other circumstances equal, is never so great as the suffering from loss.
(See Bentham par Dumont, Traité de Legisl. Civ. et Pen. Paris 1802. Tom. ii. p. 27. [In the present collection, vol. i. p. 307,] also pp. 308 to 351. [In the present collection, vol. i. p. 371 to 381,] in which the subject of satisfaction (for injury) is considered in all its branches.)
2. In case of Money, LOSS OF INTEREST.—In the case of a Non-trader, ordinary interest; in the case of a Trader, commercial interest; rate, equal to that of profit in trade. 2. As above, No. 1.
3. VEXATION:—viz. from the contemplation of the loss thus incurred, together with the expense, as per No. 4. 3. VEXATION,—If the Defendant be in mala fide, none: if in bona fide, considerable; to wit, from the apprehension of an unfavourable result, and the contemplation of the expense, actual and contingent.
4. EXPENSE:—viz. according to the costs, natural and factitious, attached, under the system in question, to the pursuit of justice. 4. EXPENSE:—viz. as on the Plaintiff’s side.
II. MISCHIEFS CONTINGENT.
5. FINAL LOSS by Misdecision, or Desistment, by reason of deperition of evidence:—Misdecision, viz. in toto, or pro tanto, according to the nature of the case. 5. FINAL Loss by Misdecision. Mischief on this score, to the prejudice of the mala fide Defendant, none; to ditto of the bona fide Defendant, the same as to the prejudice of the Plaintiff’s side.
6. DITTO, by reason of deperition of freshness, and thence of Trustworthiness and Persuasiveness on the part of the evidence:—viz. so far as concerns testimonial, and, in some cases, real Evidence; written not being, in general, thus affected. 6. As above, No. 1.
7. DEPERITION of the Matter of Wealth, in the character of MATTER OF SATISFACTION, in the hands of the Defendant, in respect of its applicability to the purpose of Satisfaction, for the benefit of the Plaintiff.—Deperition, viz. by dissipation, concealment, or exportation. 7. By DEPERITION of the Matter of satisfaction in the hands of the Defendant, Mischief to the prejudice of the mala fide Defendant, none. On the contrary, Advantage in various shapes, according to his circumstances and situation: viz. by the faculty of dissipating it, concealing it, or carrying, or sending it off, for future use.
To the prejudice of the bona fide Defendant, Deperition of the matter of satisfaction; (viz. in case of success, for his vexation and expense) in the hands of the Plaintiff.
8. DEATH of the PLAINTIFF, to whose individual person alone Satisfaction can be rendered, without losing the greater part of its virtue: thence Deperition of Satisfaction pro tanto: even where it is not lost in toto: viz. by refusal of the law to administer it to his representatives:—a denial of justice, established under English jurisprudence to a deplorable extent. 8. DEATH of the DEFENDANT himself, before the termination of the suit. To the mala fide Defendant, so far as concerns the suit, no disadvantage, but matter of consolation: viz. in respect of exemption from the pain of privation that would have resulted from the loss.
To the bona fide Defendant, matter of increased regret, viz. in respect of the uncompensated vexation and expense.
9. DESISTMENT of the PLAINTIFF, through impoverishment or despair:—Despair, i. e. want of resolution any further to endure the vexation and expense. 9. DESISTMENT of the DEFENDANT:—Relinquishment of the task of self-defence, through impoverishment or despair.
10. DEATH of the DEFENDANT, by whom satisfaction should have been rendered: thence deperition of satisfaction; either through inability on the part of representatives, or through established denial of justice, as above. 10. DEATH of the PLAINTIFF.—To the mala fide Defendant, no disadvantage, but matter of self-congratulation; to the bona fide Defendant, matter of disadvantage, in respect of the chance of deperition of satisfaction for his (the Defendant’s) vexation and expense.
11. ULTERIOR DELAY:—the Necessity or Demand for which may have been produced by fresh incidents, springing up during the course of the first Delay; and so on, more and more Delay, from fresh sources, springing up one after another, without any certain limit. 11. ULTERIOR DELAY:—To the mala fide Defendant, so much advantage; to the bona fide Defendant, so much disadvantage, as above, (Nos. 1, 2, 3, 4, 5, 6.)
12. ULTERIOR EXPENSE:—the Necessity of it imposed by fresh incidents, as above. 12. ULTERIOR EXPENSE:—the result of the ulterior Delay, as on the Plaintiff’s side. To the mala fide Defendant, compensated pro tanto; and commonly overbalanced, viz. by the Delay, and consequent chances of final misdecision in his favour. To the bona fide Defendant, uncompensated.
13. ULTERIOR Vexation—growing out of the ulterior Delay and Expense. 13. ULTERIOR Vexation—To the mala fide Defendant, compensated as above; to the bona fide Defendant, uncompensated.

Formulary,

(Not given as correct in the Figures, but as) calculated to assist Conception, in estimating the Value of the Danger of ultimate Injustice by Misdecision or Failure of Justice, Parcel of the contingent Mischiefs of Delay.

Years.
1. Average Duration of a Suit, say 1
2. Probable Duration of Plaintiff’s life, taken from an average of all ages, from 21 to 70 (according to Dr. Price on Reversionary Payments, Edit. 1792, II. 51.) 18

3. Thence Loss of Right, in one case out of every 18.

4. Probable duration of Defendant’s life, on the same computation, 18

5. Thence, where the right of the Plaintiff perishes with the life of the Defendant, loss of right in another case out of every 18.

6. Note the number of instances, in which, on one side or other, there exists some individual, whose testimony is to such a degree material, that the result of the Deperition of it would be the loss of the cause, on the part of that one of the parties, in whose favour it would have operated. Let the number of suits, (or rather causes of suits,) so circumstanced, be supposed to be, to the whole number of suits, (or rather of cases affording a just cause of suit, or in case of suit commenced, of Defence,) as 1 to 2: and, since this chance of Misdecision has equal place on each side of the suit, say, as 1 to 1. This would give loss of right, on one side or other of the suit, in another case: making, with the two former, in three cases out of every 18.

7. Of the other Contingent Mischiefs, the value is altogether out of the reach of calculation. But, as the probability of loss of right by death of a material witness (as per No. 6,) seems to be taken too high—and as the right of the Plaintiff does not (as per No. 5,) in every case (under English jurisprudence) perish with the life of the Defendant;—to compensate for the two excesses, let the whole mass of uncalculable Contingent Mischief, as above, be struck out. This will give, for the whole value of the Contingent Mischief of Delay, ultimate injustice, viz. in the shape of misdecision or failure of justice, in 1 out of every 6 cases of just cause of Demand or Defence.

TABLE III.: Causes of Factitious Delay;
OR, TRUE CAUSES OF ENGLISH, SCOTCH, &c.(a) DELAYS, FACTITIOUS AND AVOIDABLE.

1. Refusal to receive, at the hands of the Plaintiff, in person, or of Plaintiff and Defendant, at the outset of the cause, those explanations, by which all ulterior proceedings might, in most instances, be saved, and in all cases abridged.

2. Terms established, with intervals of Delay, (i. e. of denial of justice) between term and term, as far as five months; and Circuits, with ditto of six or twelve months.

3. Fixed Intervals, between operation and operation, of the same length in each individual suit, and on each individual occasion; as well those which require least, as those which require most:—with ulterior intervals, granted on demand, without inquiry into the ground.

4. Under the name of Pleadings, and various other names, successive strings of written allegations, not on oath, admitted on each side: the strings succeeding one another at determinate but enlargeable intervals as above: thence Delay, on grounds known to be false.

5. No Evidence, on which a decision can be grounded, received, till after the string of allowably mendacious Allegations on which decision cannot be grounded, has been exhausted on both sides.

6. By the swallowing up of the Local Judicatures, and the enormous extent thereby given, by the Metropolitan Tribunals, to their own geographical field of jurisdiction, the greater part of the suitors subject to it thereby thrown to a proportionably enormous distance, in point of place: thence a proportionable distance, in point of time, between operation and operation, as often as communication is necessary.

7. Between a string of Questions, that ought to be answered instantly, and the Answers, Delay sold at a fixed price, in successive intervals of six, four, and three weeks,(b) in addition to the first Delay of five months as per No. 2; with renewal of Delay upon every successive string of questions.

8. An Inquiry, on which no ultimate decision can be grounded, carried through, in order to ascertain whether another, on which an ultimate decision may be grounded, shall commence.(c)

9. The same Suit, regularly and without special application, bandied to and fro,(d) between court and court.

10. On special Application, with or without special ground, or even without application, at the option of a party, a suit that has been commenced, and even terminated, in one court, removed(e) with, or even without, complaint of misdecision into another court.

11. On special occasion, Question of Fact or Law, sent out of one court to be tried in another, and then sent back again for decision.(f)

12. A Cause being begun, instead of going on with it till finished, minute portions of successive days allotted to it, the Judge paid for each day: and, that the fees may be tripled, Attendance not enforced till the third.(g)

13. After a Decision pronounced, the effect of it suspended, by Delay sold in another Court(h); sold to every one who will buy it; sold by Judges, not one of whom ever bestows a thought upon the cause.

14. An additional Cause, (called a Cross-Cause), with its separate Delay (as per No. 7), made necessary to the giving effect to the counter-demands on the Defendant’s side, and even to his Defence against the Plaintiff’s demand, in so far as the testimony on the Plaintiff’s side, in favour of the Defendant’s side, is necessary to such defence.(i)

15. Evidence of no kind suffered to be extracted from the lips, the pen, or the hand of an extraneous witness, till after the evidence of which the parties, whether on the Defendant’s or Plaintiff’s side, are respectively the sources, has been completely extracted, and the stock of Delay attached to the extraction (as per Nos. 4 and 14) exhausted.(k)

16. A second Suit, with its separate Delays, made requisite, for the Proof of Facts, sufficiently, though incidentally, proved in a former suit.(l)

17. Proceedings nullified on pretence of Informality (i. e. non-compliance with Rules, pre-announced or not pre-announced,) and, in either case, scarce ever so much as professing to bear any relation to the merits: nullified(m), and thence required to be repeated, and this at any stage of the suit, from the first to the very last.

18. Proceedings set aside, for non-conformity of the Evidence to the Allegation; thence a fresh suit, with its separate Delay, necessitated;—instead of allowing a fresh allegation, with its corresponding demand, to be shaped upon the evidence; allowing time for counter-evidence, only in the event of its being needful, and as such demanded.(n)

19. Proceedings considered as dead or asleep,(o) and thence required to be repeated or awakened, on the intervention of fresh parties or fresh interests: on the ground of any one of a variety of collative (title-creative) events, such as death, birth, or marriage; or on the ground of intermission of proceedings.

20. Necessitating or allowing Instruments (written instruments,) useless in toto(p): thence the operations performed in relation to those instruments, and the Delay (the factitious Delay) consisting in the quantity of time consumed in those operations.

21. Necessitating or allowing Instruments, unnecessarily elongated;(q) with the corresponding operations and Delays.

22. Interposing an indefinitely-protracted series of incidental (interlocutory) Decisions, between the commencement of the suit, and the ultimate decision—the final judgment or decree.

23. Allowing, after each decision, whether ultimate or interlocutory, Remonstrances to be made (called Representations,(r) or Reclaiming Petitions) and in each instance, without any ground, other than what had or might have been adduced, antecedently to the decision so remonstrated against.

24. Instead of causing to be delivered up to the adverse party a duplicate, or copy, of an Instrument on which proceedings on his part are required to be grounded, suffering a single Exemplar to be lent out to him, only for a time,(s) that, by his default, Delay may be generated, and fresh operations, with fresh fees, necessitated.

25. Crowding together into one Court an inordinate(t) Multitude of Judges, each under an equal obligation to make and communicate his reflections: thence (besides the other Mischiefs,) necessitating Delays upon Delays, for reflection and debate:—Delays for reflection commensurate to the pace of the slowest mind.

26. Out of the multitude of Judges, deriving a reason or a pretence for printing: thence (besides the expense,) adding to the Delays of the head and pen, (as per Nos. 20 or 21,) those of the press.

27. Heaping up stage upon stage(u) of Jurisdiction, in the way of Appeal, with their respective masses of Delay; different numbers of stages, in different sorts of suits, without regard to the subserviency of such multiplication and such diversification to the ends of justice.

28. Affording no Remedy—by the exercise of the superintending authority of a superordinate Court, or otherwise—to such Delays in a subordinate Court, as, over and above those necessitated or allowed by the system, are liable to be produced by misconduct on the part of the Judge.

TABLE IV.: Disputable Causes of Delay:

i. e. Productive of such Delay, as may, in the prudential sense, be unavoidable, or avoidable, according to circumstances.

1. Time taken for reflection(a) by the Judge.

2. Multiplicity(b) of Judges.

3. Appeal;(c) together with the other modes, in which the cognizance of a suit may be conveyed from a subordinate to a superordinate Court.

TABLE V.: Blackstone’s false Causes of Delay:

Viz. Circumstances falsely stated by him as causes of English Delays, which Delays, though in truth (as per Table III.) factitious, and therefore avoidable, are by him falsely styled “unavoidable.

1. Liberty.(a)

2. Property.(a)

3. Civility.(a)

4. Commerce.(b)

5. Extent of populous Territory.(b)

TABLE VI.: Uses of the preceding Tables.

USE I.

In so far as, on this or that occasion, the quantity of the evil of Delay (extra Delay) actually having place, is not superabundant but necessary—(the result either of physical or prudential necessity)—to minister to its justification;(a) and thus prevent it from being unjustly charged, as matter of reproach, either upon the system of procedure or upon the Judge, or other persons concerned in the administration of justice under it.

USE II.

In so far as the evil is not necessary, but the factitious result, either of artifice, imbecility, or negligence—on the part, either of the authors of the system, or of any person concerned in the administration of it for the time being—to lead men to the clearer conception of the causes of the evil,(b) and thence of the means of cure.

USE III.

In so far as the evil, not being necessary, is liable to have for its cause misconduct, in any shape, on the part of the Judge—to afford the basis of a system of registration,(c) (recordation or book-keeping), by means of which, in whatever instance it happens, that the evil actually takes effect from that cause, the true cause of the evil, as well as the existence of it, shall stand exposed to view: and, by that means, to oppose a constantly resisting obstacle to its existence.

USE IV.

To hold up to view the intimate connexion that subsists, between the evil of Complication in the character of a cause, and the evil of Delay—superabundant Delay, with its endless train of evils(d)—in the character of an effect:—and this to the end that, for the reduction of the evil of Delay within its narrowest limits, it may be visible to the legislator, how necessary it is to the fulfilment of the ends of justice, that all superabundant Complication be struck off; and in particular whatsoever portion of it may have been factitious, the work of Judge and Co., executed in pursuit of the sinister ends of judicature. [See Letter I.]

USES V. & VI.

Practical uses applicable to the conduct of individuals, in their character of subjects, exposed to the misfortune of becoming litigants. 1. As to such part of the actual Delay, as the influence of the causes of that portion which is unavoidable, extends to, to submit to it with resignation and tranquillity, as a mischief out of the reach of remedy. 2. On the other hand, as to whatever portion of extra Delay is found to be referable to the influence, not of those causes, but of causes capable of being made to cease,—viz. the sinister activity or negligence of men in power; the result of corruption, or indolence, or imbecility;—not to submit any longer with silent resignation; but, with that temperateness, and respect for the constituted authorities, which becomes honest men, to become suitors for relief at the throne of sovereign power—the fountain of all relief, as well as of whatsoever is administered under the name of justice.

Should the following sheets be found to present any claim to attention, it may perhaps be matter of convenience to you Lordship to see, at this early stage, and at one glance, the general result of the inquiry:—My Lord, it is this—

1. That, so far as concerns the breaking down of the court into sections (as per resolutions 1, 2, 3, 4,) the result, in respect of the ends of justice, and the interest of the people in the character of suitors, is all pare benefit:—but so is it to the law-partnership.

2. That what concerns the mode of pleading (as per resolution 5,) being nothing more than a repetition in terminis of what has been law these twenty years, as far as an act of the Court of Session could make it so, promises no better fruit; and that the profession, if they have not much to hope, have quite as little to apprehend from it.

3. That, in Scotland, of the proposed introduction of jury trial in civil cases (as per resolutions 6, 7, 8, 9,) the probable mischief, in the shape of increase of delay, vexation, and expense, seems greater than its probable good effect in the shape of a security against misdecision: that the proper stage for that species of judicature is that of appeal, after a vivâ voce explanation, upon oath, between the parties, and decision thereupon; and not after a series of written pleadings, not upon oath, in the first instance: always under the supposition—(learned lords and gentlemen—but, good my lord, do not join them—will smile at the simplicity of it)—that, on the demesne, hitherto, on account of the richness of the soil, reserved for the chace of lawyers’ profit, the interest of the whole community may be thought fit to be cultivated, in preference to the interest of that small but domineering part of it, and the ends of justice pursued, in preference to the ends of judicature.

4. That the other arrangements proposed, apparently in the character of remedies against delay, vexation, and expense (as per resolutions 10, 11, 12, 13, 14, 15,)—viz. (optional substitution of appeals to advocations and suspensions, interposition of a Chamber of Review between the Court of Session and the Lords, prohibition of appeals against interlocutors, allowance of penal costs in the House of Lords, and retrenchment of superfluous judicial writings,—bid fairer, when taken together, for increasing than diminishing the aggregate mass of that fund of suitors’ misery and lawyers’ profit: and that the specific remedies, which could scarce have failed to present themselves to an experienced eye, have with congenial delicacy been put aside, in consideration of their too extensive and too drastic efficacy.

5. That of the system of disorder, to which the plan upon the carpet applies its powder of post, there is not any part that does not admit of a perfect cure: which cure consists in nothing more than an extended application of remedies that, as already submitted in the preceding pages, have over and over again received the sanction of the legislature: and that, in that part of the field of procedure, to which those efficient remedies have not yet been applied, there is nothing that can render them less applicable to it, than to those Edition: current; Page: [15] to which, with so complete though untrumpeted a success, they have been applied already.

Before I close this introductory letter, I will beg leave just to hint at a circumstance, which, to a statesman of your Lordship’s discernment and experience, cannot, I think, but have suggested a suspicion at least, not unfavourable to the conceptions above submitted. Among so large an assemblage of acute and vigilant minds, whose interests are so materially concerned, your Lordship has received marks of satisfaction from many—of dissatisfaction, I believe, from none. Now, that Titius or Sempronius should originate, or even, without the merit of origination, support a measure, by which, to a limited amount, his own interest, in the gross sense of the word interest, would be prejudiced, is by no means without example: and that persons of this generous frame of mind are even now to be found at no great distance from your Lordship, the present parliament has already testified. But that any body of men, especially so large and domineering a body, should, without the pressure of necessity, manifest either active approbation, or so much as anything like patient acquiescence, under any measure, which by such acceptance would be converted into a self-denying ordinance, is, I am inclined to think, absolutely without example, certainly out of the ordinary course of human nature. Yet the plan has been in their hands these six months, and such is the countenance generally, if not universally, turned to it by learned gentlemen: they admire, though as yet in the air, the beauties of this New Jerusalem: they congratulate one another, and even in print, on the fresh prospects opened to them: and, under these circumstances, no wonder that the spirit of the union, that younger brother to the original contract, remains still inviolate. But, should any plan present itself, pursuing, upon the only terms on which, to any considerable extent, it could be pursued, the interest of the whole community—I mean, at the expense of this predatory part of it—no sooner would any such plan excite an apprehension of its acceptance, than the union would be no less in danger than the church at one time used to be. Such is the discovery a man might venture to predict without the gift of prophecy: and that without any other reserve than this, viz. that as there are some predictions which by invitation will sometimes produce, so there are others which by shame will sometimes prevent, their own accomplishment.

To place their system under the protection, and the country beyond redemption, under the tyranny of dead men, legislating on a state of things, of which no conception had ever presented itself to their minds, is among the standing resources of all those intestine formentors of the body politic, whose prosperity depends upon the preservation of abuse, in all or any of its forms, against the attacks of the probe, or the incision-knife, in the reforming hand.

Would your Lordship wish to see, and in a still clearer and stronger point of view, the signification and value of this quietism? Compare it, my Lord—contrast it with the sort of countenance shown to the act (4 G. II. c. 26) for consigning to the language of the people the tenor and history of those proceedings by which their lives and fortunes are disposed of. My Lord, the opposition it underwent from learned lords and gentlemen,—underwent in both houses, was ananimous. So, at least, Chandler in his account of the debates assures us: Chandler in terminis; and with Timberland for his support.

By the English particians of those days, the same sense of injury was felt, as was felt at Rome by the learned lords and gentlemen of that time, when the book of procedure, so religiously kept under lock and key, was stolen and published by the arch-thief Flavius,* in such sort as forced them to compose another, placing it under better guard: in the one case, the rule of action was locked up bodily in a box, in the other, it was locked up spiritually in a dead language:—the same sense of injury, that is felt by the same learned persons, and as constantly, howsoever covertly, testified, by some of them, as often as, by a wicked and jury-less court of conscience act, the possibility of obtaining justice in certain cases has been extended to this or that other minute portion of the people:—the same sense of injury, in a word, as was felt by the shark, who carried off one of Sir Brook Watson’s legs, at the thoughts of being obliged to leave the other in its place. A shark is still a shark, in Britain as at Rome, after the Christian æra as before. The ocean breeds them with triple rows of teeth; the technical system with teeth not less sharp, and bushy manes like sea-lions. My Lord, when a shark is seen wagging his tail in the wake of a ship, it is a sign (so the sailors say) that there is prey in preparation for him in the belly of it.

By means of the above key, compressed and imperfect as it is, should the execution have fulfilled in any degree the wishes and humble endeavours of the workman, your Lordship may perhaps find it rather easier than at first, to come at the real tendency and probable effects, of the plan already put into your hands by the learned reformer: such at least is the object of the attempt I am thus making upon your Lordship’s time.

In the sequel of these pages I propose to Edition: current; Page: [16] myself, in the distribution of the parts, to pursue the following order:—

Part I. The proposed plan, as delineated in the resolutions, examined,—i. e. confronted with the ends of justice. Title used for shortness, Proposita.

Part II. Indication of a few of the most prominent abuses, and other imperfections, observed on the face of the existing system; being such as appeared capable of being remedied without any material change in its technical character, but are not noticed in the resolutions—Omissa.

Part III. Outline of a different plan of reform, grounded on the natural system: followed by observations, designed to operate in support of it, and an indication of certain auxiliary measures, designed principally to promote the efficiency of the natural system, as above applied, but not altogether inapplicable to the existing system, in its present technical state. Title, used for shortness, and for the mere purpose of reference, casting itself upon your Lordship’s indulgence, for its unintentionally dictatorial garb, Facienda.*

Lord Grenville
Lord Grenville
LETTER II.

PROPOSED DIVISION OF THE COURT OF SESSION.

The explanations in my former letter being premised, I proceed to submit to your Lordship in detail my remarks on the plan, as delineated in the seventeen resolutions passed in the House of Lords.

In the present letter, I propose to consider in one group, the four first, the subject of which is the division of the one existing Court of Session into several courts—and the object, the providing at any rate a remedy against delay; and perhaps an additional remedy against misdecision, in so far as these mischiefs may respectively have the multiplicity of judges for their cause. I repeat the resolutions here, to save the trouble of reference:—

Resolved,—1. That it appears to this committee, that the increase of manufactures, extension of trade, improvements of agriculture, and consequent multiplication of transactions, have varied the nature, and greatly increased the number of suits brought before the courts of law in Scotland, and thence by appeal into this house;

“And that it has therefore become necessary that some alterations should be made in the establishment of the courts of law in that part of the united kingdom, adhering as much as possible to the forms and principles of the laws of Scotland, and maintaining invariably the true meaning and spirit of the articles of union.

“2. That it will greatly conduce to the better administration of justice in the Court of Session, and will be for the evident utility of Scotland, that the said court, instead of sitting in one collective body of fifteen judges, shall sit in such number of separate chambers as may be found most convenient; and that the Lords sitting in such chambers respectively, shall exercise the same functions, and shall enjoy the same authority and privileges, as are now exercised and enjoyed by the whole Lords sitting together.

“3. That in each of the said chambers, one of the judges belonging to such chambers shall preside, such presiding judge to be appointed by his Majesty to the said office, during good behaviour.

“4. That causes coming in the first instance into court as Inner-house causes, may be brought before any one of the chambers, at the choice of the party instituting the suit; and that causes coming into the Outer-house, before any one of the Ordinary Lords of Session, and there decided, may be removed by reclaiming petition, or otherwise, into that chamber only of which such Lord Ordinary shall be a member.”

Substance of the proposed arrangements as follows:—The existing court divided into several chambers, number not yet fixed, each possessing the authority of the whole;—president in each, not removable at pleasure;—plaintiff to choose his chamber.

So far, so good, my Lord.—Reasons uncontrovertible—

1. Benefit of dispatch—Degree of dispatch increasing in certain respects with the number of the chambers.

In how many different ways delay increases with the number of judges—at least when they are understood to lie all under an equal obligation to take an efficient part—(for your Lordships, with respect be it spoken, know how to make these things easy to you) it were almost superfluous to inquire.

Time for settling the opinion of each—thence of the slowest and most accomplished in the science of dubitation: for in a court, as in a convoy, the pace of the whole is regulated by that of the slowest vessel. Think of —, my Lord: and if the whole world could furnish them, conceive fifteen —s. Decorum forbids, notoriety renders unnecessary, the filling up of these blanks.—Time spent in discussions—in bolting out misconceptions, and clearing them up, not to speak of wanderings, and in supporting opposite opinions. This, even where everything is purity, and bona fides. But should a malâ fide suitor have need of delay, and a single judge out of the fifteen be disposed to give it him, then what end of doubts and misgivings, and new Edition: current; Page: [17] points started, and adjournments? But, my Lord, I am trespassing all this while upon your Lordship’s time, and, like the fat man in the crowd, constituting the very nuisance I am denouncing.—I conclude. Benefit of dispatch produced:—Ends of justice served, the collateral ends—prevention of superfluous delay, vexation and expense.

2. Benefit of economy:—saving of delay and expense, by expense of printing struck off:—viz. printing pleadings: for, to the abuse made in this way in England and elsewhere of the art of writing, in Scotland they have found means to add the abuse of printing. Yes, law-presses broken up: at least if the number of chambers (as your Lordship has been stated as inclining to propose) be as great as three. Three chambers give five judges to a chamber: only one more than in our Westminster-Hall common law courts at present; not one more than we had in them in former times: no printing of pleadings in England, nor the want of it ever felt or imagined.

But, my Lord, I am running wild again, and outstripping your learned Reformer in the career of reformation. For, upon looking once more, I find this economy is my own imagination all the while, not his proposition. The printing trade he has indeed noticed, but for what purpose?—for the purpose of encouraging it, not cramping it. For in resolution the 12th, for the use of the proposed new court of appeal at Edinburgh, printing is enacted: nowhere is it repealed.

3. Benefit of competition: viz as between chamber and chamber, among all these chambers. Ends of justice served, all together, collateral and direct. Saving of delay, vexation, and expense; security against misdecision likewise.—Oh my Lord! how straight and how pleasant, when once a man has learnt to travel in them, are the ways of justice!

On the field here in question, in the benefit of competition, my eyes, weak as they are, have served me for distinguishing two branches. One consists in the multiplication of the shops, and the choice given to the customer, that is, to the plaintiff, as between shop and shop: the plaintiff, if he is bona fide—if his wishes are honest, as, in the ordinary state of things those of the plaintiff are, for his own sake picking out the best. So far as this branch of the benefit is concerned, to be satisfied of the reality, and at the same time to understand the value of it, I see no need to look further, my Lord, than to Cocker’s Arithmetic.

The other branch of the benefit consists in the influence of this multiplicity on the disposition and conduct of the dealers. In ordinary trades—in trades not subject to a monopoly, the nature and efficacy of this branch likewise is clear enough. But in the very particular sort of trade here in question, the great law-partnership—the competition so nearly resembling that between the two shops kept by the same cabinetmaker, one in the city, the other in Bond-street—the process for extracting the true value of this branch of the benefit does not appear quite so simple. In some instances, indeed, I think I see a positive value. But in others, if my calculation be correct, the value of it is what the value of x is so apt to be, negative. Think, my Lord, of the competition between B. R. and C. B. and the fruit of it—imprisonment for debt on mesne process; upon the mechanical principle above explained, the judge taking care to see neither party, and to know nothing about the matter, for fear of being obliged to stop a man in his way to jail, and so losing his profit upon the jail, besides so much time, and so many other of his fees.

On this part of the problem, therefore, the calculation being somewhat intricate, and running up into the higher algebra, I will not attempt to trespass on the time of Cæsar with so long a sermon. Agreed about the measure, I see no practical use in rummaging among the reasons for points of difference. But, should any occasion present itself, in which the benefit looked for from this source should be proposed, in opposition, and in the character of a substitute, to any arrangement, promising benefits, to my view of a less equivocal and more substantial texture, then would be the time for weighing the value of this part of the acknowledged benefit in diamond scales. Such as they are, I have a pair for the purpose, and they are at your Lordship’s command at any time.

But, my Lord, as in some companies the more the merrier, so in all competitions, the more the brisker. Setting down this benefit at whatever it may be worth, this and the first together (I mean dispatch,) from three, do they not bring us on to fifteen?

But at number 15, or before, if any inequality of numbers be admitted, comes single-seated judicature, and with it a new, and in my view, in comparison of either, I must confess, a still more important benefit; viz. individual responsibility.

A board, my Lord, is a screen. The lustre of good desert is obscured by it; ill-desert, slinking behind, eludes the eye of censure: wrong is covered by it with a presumption of right, stronger and stronger in proportion to the number of the folds: and, each member having his circle of partial friends, wrong, in proportion again to the number, multiplies its protectors.

Of the several branches of the public service, I would not positively undertake to say that judicature is, without exception, the one in which the advantages of individual responsibility operate in the strongest force: but Edition: current; Page: [18] where this force is at its least dimension, it can never be too inconsiderable for regard.

Other departments, for aught I know, there may be—the treasury, for example—in which, emulation finding no place, and the scene lying necessarily in a closet, board management may upon the whole be preferable. In Lord Coke’s time, the treasure being in a single hand, and that armed with a staff, Lord Coke finds a use for the staff: and says it is for keeping off sturdy beggars. But, under the softer manners of modern times, the screen may be found, for aught I know, (but your lordship knows exactly) the more convenient implement. Imagine a commander-in-chief stalking in to the treasury, in full costume—coat of mail and helmet—crying out. Your money, or your place! Coming to close quarters, a Lord Treasurer might find the staff break, sooner than the helmet:—but the screen might have its uses.—But, my Lord, what has all this to do with law and justice?

“Oh but, sir, this is all theory.”—Well then, my Lord, let us refer the matter to experience.

In Westminster Hall, two courts of Equity:—one, the Exchequer, with four judges in it: the other the Chancery, with but one. Thus to outside appearance; but in fact the Chancery includes two courts: sometimes both on a level, sometimes one above the other: as the plaintiff’s attorney thinks fit to place them: in the one the Chancellor: in the other the Master of the Rolls. Now should this, my Lord—should it, in your Lordship’s opinion, be among the “secrets worth knowing?” Call (for your Lordship has power) call for the number of suits instituted in a year in each of the three respective courts. Mean time, one thing I can take upon me to certify to your Lordship—I who have no power—viz. that, of the two single-seated courts, the one which has fewest causes, has more by a great many—and not only now has, but always had—(and I speak of those suits alone, in relation to which the competence stands on an equal footing) more, by a great many, than the many-seated court.

In the English court of Chancery, the authority has from time to time been vested in three judges, under the name of Commissioners of the Great Seal. But, so often as this treble-seated tribunal has been set up, so often has it been recognised as no better than a makeshift; and still the many-seated has given place to single-seated judicature.

So miscellaneous are the functions of the Lord Chancellor, that, to the maintaining of this constant recurrence to simplicity, other considerations may have lent their influence, besides that of its subserviency to the ends of justice. But from this surmise of other possible concurrent causes, no clear inference can be deduced: the effect, for which the advantage in respect of judicature is of itself capable of accounting, remains certain: and thus much may at any rate be inferred, that, from this so-often-repeated experiment, no indications were ever afforded, sufficient to produce a tendency anywhere to call, in that instance, for the permanent substitution of treble-seated, or in any other degree many-seated, to single-seated judicature. Of any such tendency. I, for my own part at least, never met with any trace.

But, without crossing the Tweed, the home-bought stock of experience might, in Scotland, one should have thought, have afforded indications sufficiently conclusive in favour of the proposition, that no superior prospect of advantage to justice is held out by many-seated, in comparison of single-seated judicature.

Eight-and-twenty sheriff’s courts, next in authority to the Court of Session, and in the aggregate covering the whole extent of the kingdom, all single-seated courts. Even in the Court of Session itself, everything, without any limitation worth adverting to, comes in the first instance under single-seated judicature: and what advantage has been derived, or so much as been thought to be derived, from the transference to many-seated judicature, let experience testify. On this head, whatever has been done, has been done in the way of reduction:—I speak of the riddance made of the Lords Extraordinary in George the First’s time.

In Edinburgh itself, close under the eye of the same public that calls so loudly for the decomposition of the many-seated court, there exists one of these single-seated sheriff’s courts. No call has ever been made for the substitution of complication to simplicity in this instance: and how should this be, if any inconvenience were felt for want of it.

Ever since the Union, indeed—almost these hundred years—Scotland, as well as England, has had a court of Exchequer; in England, a four-seated court; in Scotland a five-seated:*—and of this experiment, too, as far as it goes, the result is in favour of simplicity. Compared with the fifteen-seated court, general suffrage appears to be in its favour: for no complaints against it have ever been heard, and now a slice of jurisdiction (I mean that which regards the teinds, Anglicè tithes) is proposed to be cut off from the many-seated court, and given to the few-seated one. Many-seated, to be sure, it is, in comparison of the single-seated courts. Edition: current; Page: [19] But this proves nothing against simplicity: for in Scotch Exchequer judicature, there has been no single-seated court to try against the many-seated one, as there has been, and is, in English equity.

There are indeed the fourteen single-seated courts, with a Lord Ordinary in each: but such is the mode of being of these courts—sometimes detached from the fifteen-seated court, sometimes absorbed into it—that the distinctness necessary for comparison is not there to be found.

Out of five causes brought before the Lord Ordinary, he does not, it is said, pronounce a decision on more than one: the four others being, for mere want of time, handed up by him to the Inner House, before any considerable portion of his labour has been expended upon them.

At its institution, anno 1532, why was the court so crowded as we see it? Because France was the model for everything, and in France, judicature was thus crowded. In France, how came judicature to be thus crowded? Because the sale of the seats was an object of finance. From this sinister interest came the custom: from the custom, the prejudice: and that prejudice so strong, that it became a sort of axiom—that if in any instance the ends of judicature failed of being fulfilled, it was for want of a sufficiently great multitude of judges. We have a book, my Lord, on this subject, by Condorcet: a quarto volume with 460 well-filled pages in it: all algebra, all demonstration; and this axiom (preface, p. 24) a basis of it.

Sieyes, in one of his plans, improved upon this: and, to combine learning with popularity, and compose a substitute for reason out of two blind prejudices, he set up in every little town, down to I forget what degree of minuteness, a jury-box stuffed with lawyers: but, to feed this receptacle, and keep it constantly filled, after the requisite allowance for rotations, and radiations, and challenges, the quantity of learning (not to speak of probity) with which he proposed to enrich the territory of the republic, and by what means the learning itself was to find the necessary pabulum, must be left for imagination to conceive.

Now then, my Lord, supposing that, by the evidence of experience, or, in a word, by evidence of all sorts put together, single-seated judicature were proved to stand no higher than upon a par with many-seated judicature, would not its title to preference be complete? “Il ne faut pas multiplier les étres sans nécessité,” says a good French proverb: Is not this, my Lord, among the cases that fall within it?

If, in such a multitude of shops, there should chance to be here and there one that should find itself without customers, even in this case there would be no harm done. The judge whose learned leisure remained thus undisturbed, would be virtually in the condition of one to whom his salary is continued in the character of a pension of retreat:—and to form an anomaly, not altogether devoid of curiosity, in the natural history of pensions, here would be so many of these articles of expenditure, the propriety of which would find itself attested by universal suffrage.

Another thing:—Two additional many-seated courts require each a president: and the Scotch as well as English of president is, if my dictionary inform me right, additional salary. This additional salary, your Lordship, in your quality of presiding guardian of the public purse, would find a delight in saving: besides the correspondent burthen of patronage, which, by right honourable persons in your Lordship’s high and highly responsible station, has always been felt to gravitate with so severe a pressure. But a single judge would no more admit a president, than, after a critical examination, the largest elephant in the world was found to admit of either a superior, or a rival, in himself.

I dwell on this topic the more distinctly, because in the succedaneous or supplemental plan, which I propose to myself the honour of submitting to your Lordship among my Facienda, additional salaries are so unhappily and inevitably abundant: I mean for the existing local judges, to draw them off from the service of the technical Mammon, and purchase the whole of their time, for the service and benefit of justice: provincial judges, obscure but useful drudges—28 (if I do not miscount) in number—who, from so high an observatory as your Lordship’s, being too far distant to be viewed without a telescope, such as your Lordship’s learned assistant has not presented you with, found no one to endeavour to bring them under your Lordship’s notice, but a drudge still obscurer than themselves.

But to return from this digression. If England be so fit a model for Scotland, in respect of multiplication of juries, why not in respect of reduction of judges, and reduction, or rather avoidance of increase, of salaries?

The argument might be pushed further, by observing, that in the many-seated courts, almost the whole of the efficient and honest part of the business—I mean the conduct of the trial—is performed by single judges;—that, of the business done in full court, by far the greater part is made business, business that, had the ends of justice been the ends of judicature, would never have come to be done: and that, out of every three of the four judges, the best that can at any time be said, and more than can at all times be said, is—that they do no harm.

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Take a man of commanding eloquence and character (such, for instance, as Lord Mansfield was); give him conceits (such as Lord Mansfield was said to have had) of putting himself in the place of King, Lords, and Commons, and then see whether there may not be a convenience to such a chief, in having for his supporters a train of ever-obsequious puisne judges. Then comes Sir James Burrow’s triumphant unanimity,—an unanimity not so flagitious indeed, but in other respects not much dissimilar, to the unanimity so regularly, and with so little expense, in addition to that of perjury, produced by torture, among juries.

To speak plainly, my Lord, I really see but two reasons, if reasons they are to be called, for the putting of so many judges in each chamber:—one is, that there is a stock of learned materials that somehow or other must be disposed of: the other is, that here are so many situations, which may be continued without complaint, because they exist already, and which it would be so delightful for a multitude of learned persons to look up to, and for some one learned person to have, as at present, the disposal of.

As to the first reason, I feel what is due to public decorum, combined with individual sensibilities. But, amidst such a number of persons at such a time of life, if there are not already, in the nature of things there cannot but soon be several, to whom repose would be more acceptable than labour, especially labour so unremitted as theirs is universally described to be: and, without insisting on their being killed off, at any rate the supernumeraries may be suffered to die off.

As to the other reason, unfortunately it is not the less persuasive, for being incapable of being avowed: and to this, I must confess, I have no better reply to make, than what is contained in that project of my own, for improving the condition, and increasing the dignity and utility, of the provincial Sheriff’s Courts.

If what has been said in behalf of individual responsibility and single-seated judicature, should not yet be found conclusive, materials are not wanting for ulterior and diversified appeals to experience; none of them without a precedent already in existence—all of them without addition to expense.

1. In one court, five learned lords, as in the existing court of Exchequer—the court which, in respect of the number of the seats, seems to have been taken as the model for the three proposed chambers.

2. In another court, four learned lords, as in each of the three common-law courts in Westminster Hall.

3. In another court—or, in one of the above, instead of the number above proposed, two learned lords, neither more nor less, as in the Welsh courts, each of them serving, upon occasion, to prevent the other from doing anything: a result that has now and then manifested itself in the other courts having seats, as above, in even numbers.

4. Moreover, if number three were regarded as possessing any properties peculiar to itself—number three, though unsanctioned by any particular precedent that I know of (unless the three seats occasionally substituted, in the character of a temporary makeshift, to the higher single seat in the court of Chancery, be considered in that light) might find its exemplification along with any two of the numbers already mentioned.

In each case, there would still be learned materials enough left for courts more than one, with single seats in them: and forasmuch as a course of experimental judicature is intended to be delivered, it were a pity that, if the joint evidence of theory and experience in favour of single-seated judicature be not accepted as conclusive, the experiment should not be diversified under as many forms as it is susceptible of.

Thinking three degrees of jurisdiction, whereof two of appeal, numerous enough;—sheriff’s courts and others in the provincial towns, metropolitan courts in Edinburgh, with concurrent jurisdiction as proposed, and House of Lords in the imperial metropolis (one more than in ordinary cases we have in England) quite sufficient;—the existing Inner House, therefore, at the best a superfluity; which, in degrees of jurisdiction, each swarming with delays, vexations, and expenses, is as much as to say a nuisance—your Lordship sees already what my conceptions cannot but be, of the proposed 5th degree of jurisdiction—the chamber of review.

But of this in its place: after which, and after I have humbly represented to your Lordship what representations are, I propose to myself (I believe it will be in the Omissa) to submit to your Lordship by how many points the existing Inner House always has been, and, in whatever number of chambers it were to come to be divided, still would be worse than useless.

Meantime, at the bare idea of such a dissolution, I see their whole Lordships up in arms. Actually existing Inner House, three projected Inner Houses—all vanished! No houses left but Out-houses!—each learned lord reduced to the condition of a mere Lord Ordinary! the Lord President left with nobody to preside over but himself! the two bonuses, the use and function of which was, to produce, on the part of the two leaders among their learned lordships, a conviction of the utility of the plan, an utility so transcendent as to outweigh even the mischief of innovation—these two all-composing anodynes both gone!

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So redundant is the population of the Inner House found to be, when once any principle of reason or experience comes to be applied to it—so large the proportion of the mass that runs into scoriæ, when once put into this test—so raging the disease, so urgent the pressure, that even Mr. Malthus, with his inflexibility, and his bitter remedy, might find himself at a loss to cope with it. Submitting mine, I submit it rather for illustration, than for any serious hope of seeing it carried into practice. To give reception to it, the interest of suitors would be to be preferred to the amour propre of so many judges: the whole interest of 1,500,000 unlearned, to that delicate and tender part of the interest of fifteen pre-eminently learned persons: the ends of justice to the ends of judicature:—and, in Scotland in particular, not to speak of other countries, was ever any such preference, to any extent worth speaking of, so completely without a precedent?

As to the persuading a learned lord to sit in a court in which he would be sole judge, instead of sitting in a court of no wider nor higher an extent of jurisdiction, in which he would be but one out of five, it is not there, if that were all, that I should be apprehensive of much difficulty.

The misfortune is, that of the jurisdiction at present exercised by the Court of Session, a great part, and, if I apprehend it right, by far the greatest, is jurisdiction in the first instance; so small being the proportion of the number of causes that receive a decision from the Lords Ordinary: and the business of the Bill-Chamber, it is to be hoped, not being sufficient, when added, to place the majority on that side.

At present, the population of this upper story of the College of Justice, with the exception of the Lord President, standing, the whole of it, upon one level, here would be a necessity for disturbing the equilibrium, and fixing it on two different levels, dividing it between an upper and an under school: and here it is not, as in the case of the two additional proposed chambers, in which two learned persons are to gain, each a remove, their fellows remaining as they were; but a sort of turning down or degradation would be to be effected, of those who at present do upper as well as under-school exercise, some being abased, and confined to under-school exercise alone, seeing their fellows at the same time exalted, and set for ever above such inferior exercise.

Here, then, would be the rub. In some schools, where a pill of the bitter kind has been to be swallowed, lots have been cast to know to what part out of the whole number it shall be administered. But that has been propter delictum; which takes it out of the present case and unfits it for a precedent.

In our spiritual courts, the same learned person is found, I have heard it remarked, to act alternately the part of judge and advocate, coming upon the theatre of justice sometimes in the one character, sometimes in the other, with the most amiable condescension, and with that facility and promptitude which is acquired by practice. But that, on that or any other theatre of justice, any such custom has ever prevailed, as that of a judge ad quem descending and coming on in the character of a judge à quo, is more than I recollect an instance of: especially where the descent has not been occasional, alternating with reascent, but permanent and definitive.

The misfortune is—it is impossible to disguise it—that, not only on the existing plan, but on my plan, jurisdiction in the first instance is sheriff-depute’s [substitute’s] work; and, while any one of their lordships had appellate-jurisdiction work to do, and that alone, to expect that any other of their equally learned lordships should set his hand to sheriff-depute’s [substitute’s] work, would be an expectation about as extravagant, as that the housekeeper of any of their lordships should set her hand to kitchen-maid’s work, and undertake to wash the dishes.

In the military department, indeed, how often have we not seen, in histories at least, one general serving as volunteer under another, a senior even under a junior? But how different—how opposite, or rather disparate, in every point—are the two lines of service! In the one, a man hazarding his own life, to save life and everything to his fellow-subjects; in the other, sitting upon a cushion to dispose of theirs; not forgetting to secure a few pickings out of their fortunes to his own use. Honour the endowment of the soldier, learning that of the man of law. Are south and north more opposite than honour and law-learning—law-learning, with falsehood for the basis of it?

This, then, being hopeless—and whatever else may savour of self-denial, or sacrifice of personal profit or vulgar pride, to public good, or to more refined and sublimated pride, from members of a body so placed, and so habituated, alike hopeless—(your Lordship will comprehend without difficulty with how much greater satisfaction I should see any such conception confuted than confirmed)—it remains, that, for doing sheriff’s work, we should be reduced to men as yet unlorded, to men upon no higher a level than that of sheriffs-depute [substitute.]

Yet a time there was—and that at no great distance—at which a Curtius of this stamp might not improbably have been to be found. There lived an honest man once, ever among their learned lordships, whom they called Swinton—Lord Swinton—the same whom, on a pilgrimage made by him to England—like Edition: current; Page: [22] that of Herodotus to Egypt, or the fabled one of Anacharsis to Greece—to England, as to the seat of more antique and mysterious learning, Judge Buller, perceiving in the man a sort of an excrescence like your love of justice, and looking upon him for it as an oddity, a species of Howard, like a man with two thumbs, or a calf with five legs, took upon himself to quizz: telling of him a good story, which I choose rather to leave for a Bulleriana, or King’s-Benchiana, than to entertain your Lordship with it.

In this man, judging of him from his pamphlet, which perhaps your Lordship may have seen, and which is all I have to judge him from, except the small-debt act, for which, if it be his, as it is said to be, thousands and tens of thousands, born and unborn, are bound to bless his name—in this man I should have expected to find a sort of Scrub, a judge-of-all-work, ready to serve justice in any capacity in which he could be made useful to her; and (like another honest man far beneath him, whom, for different odd jobs, I may, in the course of these letters, have occasion to present to your Lordship’s notice) without scratching his head for something to drink, or calling for increase of wages.

Not but that—could the plan of so unqualified a reformer, as he who thus presumes to obtrude himself upon your Lordship’s notice, present any title to acceptance—work, and that of a kind not to be disdained by any hand, would be to be found, for one at least of these indubitably learned, and supposed superfluous distributors of justice: work, in its nature somewhat different from their present occupation, but in dignity not inferior, and with an appropriate title. I mean that of inspector-general—say, lord inspector—of Scotch law: but of him and his functions, in my short list of facienda.

Moreover, if another of them would condescend to take English, and another again Irish judicature under his care, they would neither of them, I would venture to say, find in either field any want of matter meet for observation.

I have already ventured to confess to your Lordship, that, under the existing fee-gathering system, my expectations from the benefit of competition, so far as concerns one branch of that benefit, are far from sanguine. But, my Lord, since upon my plan we have so many pre-eminently learned persons, each of himself a court, and in the habit of being one, upon our hands, I will venture so much further as to submit to your Lordship one experiment, which, although there could be no sort of competition in it, would be but the more instructive. And, in proposing the experiment, so bold am I for this once, that without any sort of pretension to the gift of prophecy, I will moreover venture to predict the result.

Let any number of courts be set to proceed in the way of natural procedure. Let any other number (for shortness, let us speak as if in each case there were but one) be left to proceed in the way of technical procedure, according to the existing practice.

Such being the experiment, now as to the result. The result will be, my Lord, a separation of plaintiffs into two groupes—

Bonâ fide plaintiffs—every one of them, without exception, will go to the court of natural procedure.

Malâ fide plaintiffs—every one of them, without exception, will go to the court of technical procedure.

Every one of them—that is, if there be any:—if, with his motives upon his forehead, any lawyer—advocate, writer to the signet, agent—whatever be his nature, or his name—should be to be found, hardy enough to lend himself to a procedure, of which, where there is any other to be had, the oppression of the defendant will be the sole object, as well as manifest result.

To the court of natural procedure will betake himself every man who, wishing to have his due with as little delay, vexation, and expense as possible, is content, for the benefit of seeing the obligation of veracity imposed upon his adversary, to face him before the judge, and take that same obligation upon himself.

To the court of technical procedure will betake himself every man who, having a demand for the power of imposing upon his adversary a quantity of expense and vexation, and wanting delay as an instrument for letting in and laying on the vexation and expense—whether it be for the simple purpose of inflicting torment, or for the purpose of compelling, by the terrors of such torment, or the inability of enduring it longer, a surrender of the Naboth’s vineyard, by which his concupiscence has been provoked;—having an effectual demand, I say, for this jus nocendi, and being content to torment himself for the advantage of applying corresponding torment to his adversary, goes of course to the only officina justiciæ where jus nocendi is to be sold.

As to the court of natural procedure, and the destiny that will await the causes introduced into it, I can venture to submit an estimate, not unworthy of your Lordship’s notice.

A little less than a third, or some other such large proportion of the whole number of causes, will receive their decision on the first day, and after one appearance on both sides:—a little less than another third, on the next day, the defendant having made default the first; but still with but one appearance on each side, or with but one appearance, and that on the plaintiff’s side:—a little less than the remaining third, still on the second Edition: current; Page: [23] day; though, in this case, by adjournment;—and thus with two appearances on each side.

I speak from a twenty years’ experience, acquired in a court of conscience, of which in another place: and presently your Lordship shall see—if not an estimate, an expectation—from much higher, indeed from the very highest authority, and still more favourable.

Other suits there doubtless are, to the delay and expense of which, as resulting from some assignable cause or causes of complication, a table of which is hereto subjoined, even under natural procedure, no such limits as the above, nor even any determinate limits, can be assigned. But these would most assuredly not amount to a tenth part of the whole number of civil causes of all sorts, those included which cannot now come, as well as those which can and do come, under the jurisdiction of the courts of conscience, or say of the small-debt courts.

Among these suits, there are some in which the use of writing, in the first instance, will be necessitated by the circumstance of distance. But that the exercise of the jus mentiendi is not necessarily attached to that of the art of writing, is known even to English equity. For all these extraordinary cases (for such they are, in comparison of the bulk of causes that would come for justice, if it were to be had,) full provision is accordingly made in the plan, the outline of which will be submitted to your Lordship in the Facienda.

But here another difficulty presents itself. After travelling, and so much at their ease, and through the whole course of the learned part of their lives, in the road that leads to the ends of judicature, their Lordships would be apt to find themselves a little awkward, it may be feared, when set to travel in so new and strange a road, as that which leads by the shortest cut to the ends of justice.

My Lord, I feel the force of the difficulty; but nothing but absolute necessity shall make me regard it as insuperable.

Various expedients present themselves:—There are schools in which grown gentlemen may learn to dance: there are schools in which grown judges might learn to do justice.

Each learned lord has servants: most of their learned lordships have or have had children: to whom, in case of any little transgressions or disputes, such as will sometimes present themselves in all families—to whom, at any rate (I speak of the children,) if not to the servants, he will have been desirous to do, and will accordingly have done, justice.

Each learned lord, or at any rate almost every learned lord, has or has had a lady, whose learning, let us hope, if she has any, bears no resemblance to his own. If in that domestic tribunal he has not been in the habit of exercising the judicial office himself, or even if he has, let him put himself under her tuition for a while: behold in her rules and orders a set of acts of sederunt, to which I will not do any such injustice as not to suppose them better than his own, and read in her fair hands his improved book of practice.

Should that course of schooling, in the instance of this or that learned tyro, fail, or be found insufficient, let him follow the precedent, though not literally, set as above by the good Lord Swinton. Let him betake himself—not to a jury-box, as Lord Swinton did—he will not find there exactly what he stands in need of—but to the nearest Scotch small-debt court:—or it, looking upon a visit to any such neighbouring school, as a sort of remedy for his leprosy, too near akin to a dip in the river Jordan, he does not, any more than Lord Swinton, grudge crossing the Tweed, let him repair to Birmingham, and put himself under the tuition of Mr. Hutton, whose amusing as well as instructive account of the proceedings of the court of conscience there, as carried on under his presidence, is lying on the table before me; and who, if applied to by any man in that elevated station, will, I am certain, not refuse that information, which in my obscure and humble station he has granted to me.

But, not to impose on every one of their learned lordships the necessity of any of these wild pilgrimages, there exists (if on a hasty glance I comprehend this part of the carte du pays right)—there exists in that spacious mansion called the Outer House, including in itself so many mansions, one in which there sits a learned lord, called the Lord Ordinary on Oaths and Witnesses. On him is imposed, I see, on particular occasions, the degrading function of sitting to receive, in their own proper, or rather improper persons, the canaille of suitors.* There he finds himself now and then obliged—for I believe he finds it impossible to escape from them altogether—to hear them and examine them, and thus to get from them the truth, in its native crude and impure state, without having it refined, and double-refined, and treble-refined, by being percolated through the lips and pens of commissioners and commissioners’ clerks, and agents, and writers to the signet, and advocates, and Court-of-Session clerks of so many sorts and sizes. In this ergasterium, if I understand the matter right, it falls to the lot of each of their lordships (the president excepted) in his turn to drudge. If, then, after drawing the truth, or whatever is given for truth, in this crude state, and from whatever sources it is to be had from, and that at the very outset of the cause, and from both parties at once, and without a syllable previously written by professional lawyers of either side, or at any other time, unless it be worth while, as the parties and witnesses if Edition: current; Page: [24] any, speak, to set down what they say,—if, with these little variations, he can prevail upon himself to decide upon the evidence at once, instead of setting it, or something that passes for it, to be committed to writing, to be decided upon by some other judge, who has heard nobody, seen nobody, and knows nothing about the matter, he will have judged, under the system of natural procedure, whether he knows it or not, as truly and scientifically as it ever happened to Monsieur Jordan to talk prose.

Can the utility or the practicability of the natural system admit of doubt? Let us call authority then to solve it, my Lord, and let us look up at once to the highest in this line:—

Even Mr. Hutchinson*—I should have said his right honourable corrector of the press—(p. xiv.)—the Lord President—speaking (p. 116) of the Scotch small-debt courts (courts of natural procedure,) admits, that the mode of procedure there pursued, parties present, no mendacity-licence, is “most excellent” (pp. 116, 120, 123, 125;) meaning for a debt of £5:—of course for a debt of £50, if incurred at ten different times. The same learned gentlemen are indeed equally clear, that the self-same mode of procedure, or at any rate that the self-same courts, are stark naught for a debt of £5: 1s.—“It is plain,” say they, p. 129, “that in this country the sum could not at present, with propriety, be raised above £5 sterling.” Add a shilling to the £5, thereupon comes the necessity of a determination on the part of the judge never to set eyes on the parties, coupled with a determination to read or pretend to have read lawyers’ scribble, heaped together in volumes, printed with the benefit of the mendacity-licence. As to the distinction itself, nothing can be clearer: but as to any ground for it, relation being had to the ends of justice, nothing of this sort is attempted to be given, nor ever will, the task being upon the face of it an impossible one.

In vain would it be to say, when you get above £5, learning is necessary, and learning is not to be found among non-lawyers, the noblemen and gentlemen, who sit and act as justices of peace in these small-debt courts. This being admitted—(not that the connexion between height of value and demand for learning has place in so many as a fifth part even of the causes above that value)—this however being admitted, still the ground would be never the stronger: draw the boundary line where you will, still it would remain to be proved, that while truth is sufficient to justice below the line, mendacity is necessary above it. The mode of inquiry pursued in the system of procedure, is one thing; the description of the hands, by or under which the inquiry is conducted, and justice or something that is called justice is administered under that system, is another. Whatsoever repugnancy learned minds may feel at the idea of pursuing, with truth before them, the only course leading to the discovery of it, the bar is of their own making: learned feet, could they be prevailed on, are no less capable of pursuing that track than unlearned ones.

So in regard to space and time. In the one case, there is a straight road of a mile long, and without a turnpike in it: in the other case, you may go to, or at least towards, the same place by a road of a hundred miles in length—full, accordingly, of turnings and windings—full, moreover, of quicksands and pit-falls, and equally full of turnpikes. In conducting the traveller, nothing obliges the conductors to avoid the straight road, and drag him along the crooked one: nor would they ever have given themselves any such trouble, had it not been for the turnpikes, the tolls of which are so regularly settled, and the tills in such good keeping:—learned feet, could they be prevailed on, are no less capable of treading the short road than unlearned ones.

As to our learned author, so long as the travellers are “low people,” and unable to pay turnpikes, he is content that they shall be let into the one-mile road, where there are no turnpikes. But, as everything that begins must begin somewhere, his calculation is—that where the value of the article to be travelled in quest of, begins to rise above £5, there begins the influx of your respectable sort of people, who are able to pay the turnpikes. Then accordingly comes the time for shutting up the bowling-green one-mile road, which is without turnpikes, and opening the bone-setting or bone-breaking hundred-mile road, crowded all the way with turnpikes.

“It is not,” says he, p. 137, “without some very good reason assigned, that the court is to be delayed from one day to another, but each day’s roll ought to be determined, if possible, at one sederunt: as the loss of time, besides the injury to the community, is a very serious evil to persons in the lower ranks of life, for whose benefit this act was principally intended.

Every day, every mile, beyond the first, is grudged (your Lordship sees) by the humanity and justice of these learned gentlemen, where the persons detained are low people, out of whom nothing, or at least nothing worth stooping for, is to be got, and the persons detaining, are unlearned people, by whom nothing is ever got, and for whom nothing is intended. But no sooner do your respectable people come up—bang goes the gate of the Edition: current; Page: [25] one-mile road in their faces, and they find themselves thrust into the hundred-mile road (with more propriety I might have called it the 500, or 1000 mile road,) while humanity and justice are as fast asleep as ever London watchman was at his stand. In the one case, not a single day’s delay will learned gentlemen endure to hear of, “without some very good reason assigned:”—in the other case, days of delay by hundreds, not to say by thousands, insisted for, and not an attempt to assign so much as the shadow of a reason.—But nemo dat quod non habet.

Thus it is, that, till that explanation shall come, of which your Lordship will judge whether it can ever come, your Lordship has not only reasoning, which (being my reasoning, and without any intrinsic authority for its support,) is worth so little, but authority, which (including, as it does, the authority of the right honourable president,) is beyond all price, for being persuaded, that the natural system of procedure is “most excellent,” and even for causes of all sorts and sizes: at any rate, if administered with the benefit of that learning, which, if properly commissioned, nothing but its own diffidence, (shall I say?) at any rate its own reluctance, can prevent from administering justice in this “most excellent” mode, in which unlearned gentlemen administer it without difficulty, and so much to the satisfaction of their learned superordinates.

Their satisfaction—yes, my Lord, and their delight. For it would do your Lordship good to turn to Mr. Hutchinson’s book, and see with what energy these learned persons, over and over again, plead the cause of Natural Procedure, as personified in these small-debt courts, always supposing that at the exact sum of £5 she makes a full stop: by how rich a fund of virtue, in the shape of candour, disinterestedness, devotion to the laws, love of justice, and I know not how many other shapes, all that eloquence has been fed. But, until that explanation shall come, which can never come, it may be worth your Lordship’s while to consider, lest the force of such high authority should act in a wrong direction, whether necessity was not the material of which all that virtue was composed, and whether the real object were not (seeing that what was done could not be undone,) to stop the unprofitable system from going further; and, for that purpose, upon the strength of so much virtue, to obtain credit for the insuperability of that inestimable bar, of which no description was given, because it was not to be found.

A circumstance which does not tend to weaken this suspicion, is the care taken to bolster up this bar, by the hack epigram, made by Montesquieu, and retailed by Blackstone, in which the idea of incompatibility as between justice and liberty is insinuated: a piece of sophistry which, whether in design or no, may be set down as being, in tendency, one of the most mischievous that wit was ever employed in varnishing; and which, before I close this address, I feel myself strongly tempted to strip of its varnish, that lawyers in general, and especially lawyers to whose authority height gives weight, may, by shame, and fear of public indignation, find themselves estopped from using it.

Four-and-twenty thousand six hundred causes in little more than eight years, making 3,075 causes in a year, is the number stated by the Mr. Hutchinson and his right honourable collaborator (i. 144,) as determined in one alone of two small-debt courts “in the Edinburgh districts alone of the county of Edinburgh, exclusive of the two other country districts:”—population 82,560, as per returns printed by the House of Commons; viz. if my conception of the districts meant to be designated by him be right, of which I can form no assurance; but, take it in any way, to the purpose of the conclusion, there will be little difference:—

Number of causes of the same description afforded by the whole population of Scotland, setting down at 0 the causes determined by the other Edinburgh small-debt court, but supposing the whole population of Scotland equally fertile in suits 59,540
Numbers of “new causes introduced per week into the Court of Session,” (as per Edinburgh Review, January 1807, p. 469) “about 150 or 200,” (say then) 175
Making, per year, supposing 26 of these weeks in a year (vacation times excluded,) 4,550

Now then, my Lord, if the mode of procedure pronounced “most excellent,” by that right honourable and most competent judge, be not to his belief most excellent, how can he justify himself (ask him, my Lord) in certifying it to be most excellent in these 59,540 cases? But if it be so excellent (always saving and reserving to him the benefit of that distinction which will never come,) how can he justify himself in opposing the ineffable and unsurmountable bar to the extension of this most excellent mode to the 4,550 causes?

One observation more, my Lord, to save learned gentlemen the trouble of seeking support in a straw, which would break in their hands as soon as touched. In vain would it be to plead in bar to the personal appearance of parties, the vexation it would be attended with.

1. The vexation which you grudge not to impose on 59,540 persons, shall you grudge the imposing it on 4,550?

2. The vexation which does not preponderate Edition: current; Page: [26] against the advantage in so many other shapes where the value at stake is no more than £5, shall it preponderate where the value at stake is 10, 100, 1000-times as much?

3. The vexation which you never grudge imposing upon a man where the cause he is to attend upon is one in which he has no concern (I speak of extraneous witnesses,) shall you grudge the imposing it upon him where the cause is his own?

4. Thus the matter would stand, as between one man in the character of a party, and another man in the character of a witness. But, my Lord, who does not know, that frequently the appearance of a single man in the character of a party, will save the appearance of any number of men in the character of witnesses?

5. The vexation attached, under natural procedure, to the personal attendance of a party before the judge, is less than that portion alone, of the vexation attached to technical procedure, which consists in the attendance necessary to be paid to his own lawyers.

6. Vain and groundless will be seen to be every use that can be made of the article of vexation, in the character of an objection to natural, as opposed to technical procedure, when it is considered, that of the vexation attached to litigation in general, and in particular of the portion attached to attendance of parties, little less than the whole was factitious—the produce of the industry of the predecessors of learned judges, made by them in conjunction with one set of their partners, viz. malâ fide suitors; who, for the part borne by them in it, get payment—plaintiffs, as above—defendants, also as above, besides the benefit of delay:—factitious mischief, made by the managing partners on purpose, in order to force men, as they did, injured and injurers together, into the hands of another division of the partnership,—the hireling and naturally treacherous assistants and substitutes of the parties.

The effect was produced—partly by swallowing up the local judicatures, and thus enhancing the vexation and expense of journeys;—partly by encouraging sham excuses for non-appearance, called essoigns, and multiplying incidents ad infinitum, and so enhancing the vexation and expense of demurrage;—all this in a state of society which afforded neither roads, nor carriages, nor lodging-places, nor safety anywhere.

In my first letter, in hanging up the two companion-sketches of natural and technical procedure, I had occasion to state this;—and now, to prove it, I call the right honourable the Lord President.

But, my Lord, his evidence (your Lordship sees) is already half given:—a single day, viz. a few minutes in that day, is all the time he says (as above) that a cause ought to last in general, and setting aside the extraordinary cases. There is the half that has been already given: the other half, that remains to be given, consists in an estimate of the number of days, minimum, maximum, and medium, which the same individual cause, that ought to be, and commonly is, dispatched in a small part of a day, by unlearned judges (parties being present at the outset,) would be drawn through, in the hands of those learned persons over whom he presides:—be drawn through—I mean, in the several cases of its visiting the 1st, the 2d, the 3d, and the 4th, of those degrees of jurisdiction, to the number of which, as not being yet sufficient, it is now proposed to add a fifth.

It is not without pain, believe me, my Lord, that I feel myself obliged to come to such close quarters with my learned adversaries, if such they are to be, and to apply a scrutiny of so rough a texture to a book which commands my admiration by so many titles. But, if I thus treat them as adversaries, it is for the purpose of converting them into allies:—and, labouring under such a load of disadvantage, contending against principalities and against powers, having a great battle to fight, and but one pair of hands, and those very weak, to fight it with, prudence will not suffer me to neglect an advantage so eminent and so rare.

Nothing, my Lord, do I impute to these two learned persons, or either of them, that I do not find myself equally obliged to impute as the effect of the original sin of the whole race, to all the Inns, whether of Court or Chancery, as well as to the whole College of Justice.

Ah, my Lord!—if your Lordship could but prevail on the Lord High Chancellor, or the Lord Chief-Justice of all England, to write a book, or, what comes to the same thing, to give a “regular revisal” to one, “sheet by sheet, without one exception,”—to a book, I mean, showing how everything is as it should be, and, in particular, how jury-trial, placed and ordered as it is, is a boon so perfect as to “excite astonishment at the blindness that can hesitate about acceptance:”—could your Lordship, by any entreaty, obtain for England a lecture ex cathedrâ, correspondent to that which has been so generously and spontaneously bestowed upon Scotland—ah, my Lord, what sport should you then see!

But to return to my experiment;—a competition, if such it must be called—not between judge and judge, both under the same system, but between system and system, technical procedure and natural procedure. Here would be an experiment indeed, my Lord:—a true experimentum crucis. Has your Lordship nerves for it? “Fiat experimentum” was the favourite dictum of that Chancellor, who, I presume, had his seat in the cabinet of that Edition: current; Page: [27] day, and who was at once the father of philosophy and the legislator of legislators. “Fiat experimentum” was the language of Lord Chancellor Bacon: would it be the language of Lord Chancellor Erskine?

Lord Grenville
Lord Grenville
LETTER III.

PROPOSED SYSTEM OF PLEADING.

In the present letter I propose to say what little there seems at present any use in saying on the little that, on the subject of Pleadings, I find said in resolution the 5th,—the resolution which takes that subject for its theme.

Resolved,—5. That in all causes, whether originally brought before the Lord Ordinary, or before the Chambers as Inner-House Causes, the defender shall, in his defence, distinctly admit or deny all relevant facts alleged in the summons, or other writ by which the cause is brought into court.”

Further on, my Lord, I observe profession ample, and yet performance scanty:—but where what is professed is nothing, what can be expected of performance?

Of this profession, the manifestly professed object is diminution of factitious delay, vexation, and expense: viz. in so far as the defendant’s share in the process called, in English law, pleading, is concerned.

Now, my Lord, were it really an object to do away, or diminish, the factitious part of that aggregate mass of inconvenience, learned gentlemen would not, could not, be at a loss. Admit, compel even, both parties, in the first instance, into the presence of the judge: sending them, however, not from the Orkneys to Edinburgh, but from the Orkneys to Kirkwall. Scotland has the happiness of possessing already a set of local courts, by which the Scotch metropolitan courts stand divested of the pretence, which the English ones have made to themselves, for turning a deaf ear to that first principle of justice. Admit them;—but under that security for veracity which is never refused, in the case where temptations to the opposite vice have no existence:—which is never refused in the case of the most unexceptionable extraneous witness:—take away, in a word, the mendacity-licence, as it is already taken away in those civil courts where justice, in all its shapes, is really the object—in the English courts of conscience, and in the Scotch small-debt courts.

Do this, and all “relevant facts” will really be either “admitted or denied:” and on each occasion, with whatever “distinctness” the ends of justice, in the opinion of the judge, require: if the first word is not distinct enough, he calls for a second: and so on, till he gets one that he looks upon as adequate to the purpose: being exactly what happens where a man is heard and examined, and cross-examined, in the character of an extraneous witness:—and (what is more,) along with the distinctness you will get truth: at least as surely as you could expect to get it from an extraneous witness;—that truth which would so ill accord with the interest of the learned framer of the resolution, and his learned partners, and which accordingly he does not so much as profess to aim at.

What!—put an end to written pleadings?—rob us of our business?—knock up our profession?—substitute Turkish to Scotch and English justice? Whence comes this man?—from the Jacobin Club, or from St. Luke’s? Loud laughter among learned lords and gentlemen:—but will Lord Grenville join in it?

The defendant shall (says the learned reformer) be “distinct” in his “admissions and denials.” What! does it depend upon him, then, my Lord, to give distinctness to the language of a man he never hears? and, in a word, of every man? Yes, if he were a judge, with the defendant before him:—but that is the very thing which no learned lord or gentleman can ever bear to think of. And yet he commands, and, in commanding, undertakes for, and predicts distinctness. Now then, my Lord, let us see what are the chances his prediction has of finding itself fulfilled. As often as the defendant is in malâ fide, which in the most common sort of cause (debt) is most commonly the case, it is the interest of that one of the parties that there shall be no such distinctness: be he in malâ or in bonâ fide, such, at any rate, is the interest of his lawyer: and on these two it is—but in an infinitely greater proportion (taking the suitors in the aggregate) upon the lawyer, that distinctness depends. Now then, as to the chance of fulfilment, how stands the matter at present? No distinctness at present;—for it is the want of it that is the very grievance to be remedied:—how as to the future?—though distinctness is the sole object, nothing is so much as proposed for promoting it in future:—and yet the learned reformer, with his prophetic as well as imperative shall, makes sure of it.

The learned gentleman, who has distinctness at his command, had he begun with giving it to his own conceptions and expectations, might it not have been of use?

On occasions of this sort, my Lord, there is a something, which, without the aid of learning, common sense is pretty much in the habit of doing, towards securing distinctness in respect of admissions and denials: and that is—whatever, having been asserted on one side, is not denied on the other, to set down as admitted: and whatsoever, being attempted to be denied, is not denied with sufficient distinctness, to set down that too, upon occasion, Edition: current; Page: [28] as not denied but admitted. Such is the practice, my Lord; and that not only where common sense is happy enough to continue unoppressed by learning, but even in the midst of learning, and in spite of it:—for example, in all reciprocating affidavit-work, not to mention other instances.

Had he gone thus far, and said—Whatsoever relevant facts, being alleged in the (plaintiff’s) summons, &c. are not denied (or are not distinctly denied) by the defendant in his defence, shall be regarded as admitted—by so doing, something might perhaps have been done: done, I mean, towards the apparently professed object—the abridgment of these written pleadings, with their io, mio, and arrio of delay, vexation, and expense:—and this, too, though perhaps not altogether without cramping, yet certainly without knocking up, the learned trade.

I speak, my Lord, taking the matter upon the footing of the French chevalier d’industrie’s position—“Monseigneur, il faut que je vive:” and setting aside, as surplusage, the lieutenant de police’s reply—“Monsieur, Je n’en vois pas trop la necessité.

The case is, my Lord—as, I hope, I may now say your Lordship sees—that, so long as written pleadings, especially in the Scotch style, continue to be received—without oath or equivalent security, or faculty of counter-interrogation—it is the interest of those on whom it depends, and it depends on those whose interest it is, that there shall be no end to them on either side, nor therefore any distinctness in them or truth:—and it is in this state of things that the learned reformer undertakes, by his fiat, to infuse distinctness into all conceptions and all pens.

My Lord, on this subject there is a supposition which I really know not how to get rid of, and which is—that in presenting to your Lordship this his recipe for the cure of indistinctness, the learned practitioner must have represented himself as doing something which had not been done before. Never, surely, could he have said to your Lordship—this my nostrum is one of the powder-of-posts which the Pharmacopæia Juridica Edinburgensis is full of—which we have been administering every day for these twenty years, and which has never yet been found to have any more effect than it was designed to have. No, my Lord; this could never have been his language:—what he must have said, is—this is a new preparation, which will now come to be tried for the first time, along with the other novelties.

Such was the character I had of course ascribed to it. Judge, my Lord, of my surprise—a surprise in which I should expect your Lordship would not be altogether without a share—when, in rummaging among the Acts of Sederunt, I found a part of one, and of so recent a date as 11th August 1787, in these terms:—“When the defendant receives the summons, he shall therewith return, upon a separate paper, his whole defences, both dilatory and peremptory, stating the facts he is to insist upon, and explicitly admitting or denying the several facts set forth in the pursuer’s libel.”

To be sure, the tenor is not precisely the same:—anno 1787, explicitly; anno 1806, distinctly:—but whether, in purport, there be any material variance, your Lordship will judge.

Now then, my Lord, this law of the Scotch judges, is it acted upon, or not? If acted upon, your Lordship sees what has come of it: if not acted upon, but neglected, what security does the resolution give—what security is it in the power of the learned author to give—that the neglect will not continue? As to neglect, your Lordship will please to observe, that it is no more than has happened to many and many a law, of more substantial texture. For, my Lord, in the Court of Session, the very carpet they tread upon is made of shreds of laws, enacted, broken to shivers, lying one upon another in heaps, unabrogated, unremoved:—a carpet, than which none was ever softer, to the foot of a corrupt or partial judge. But of this among the Omissa.

All this while, if by pleadings are to be understood demand, with particulars and grounds of demand, on one side—admissions or defences, with grounds of defence on the other—think not, my Lord, that if it depended upon me, written pleadings would be no more. On the contrary, printiny, where properly managed, being a cheaper mode of writing, great and constant use would be made of them: though, unfortunately for their reception, upon such terms as would be of little use to pleaders.

But, my Lord, without a body of substantive law to stand upon, a system of pleading is a superstructure without a foundation. Without this basis, an edifice fit for any better purpose than that of a labyrinth, for harpies to burrow and fatten in upon the blood of suitors, is an impossible work:—on this basis, foundation and superstructure together, comparatively an easy one:—but of this in the Facienda.

Yes, my Lord: speak the word, and a body of law, with a system of pleading raised upon it, you shall have. Comyns, title pleader, shall be taken into the laboratory. It shall be thrown into the roasting furnace; the arsenic, 60 per cent., will fly off in fume:—it shall be consigned to the cupel; the lead, 30 per cent., will exude out, and repose for everlasting in the powder of dead men’s bones. The golden button, 10 per cent., shall be gathered up, my Lord, and made the most of.

Edition: current; Page: [29]

On the present occasion, with the benefit of second thoughts, I spare your Lordship’s indulgence no light load, which, under a first impulse, I had destined for it, about issues, general and special, summonses in the Scotch style with libels in the belly of them, and Scotch petitions, and English declarations and pleas, and English assumpsit, trover, and ejectment, and Scotch ranking and sale: and the existence in Scotland of the equivalent of English declarations, and the non-existence of the equivalent of English pleas:—and the original old English Castle of Chicane, and the new wing added to it in Lord Mansfield’s time (for in business, addition is as welcome as subtraction is invidious,) to wit, under the name of “particulars,” and so forth. How fortunate is it, for one of us at least, that the discovered nihility of this part of the learned improver’s basis, saves me from the task of seeking to load it with any such superstructure!

Jeremy Bentham
Bentham, Jeremy
Lord Grenville
Lord Grenville
LETTER IV.

PROPOSED TRIAL BY JURY.

Written pleadings, my Lord, with the benefit of the mendacity-licence—the assumed necessary foundation of jury-trial—being thus provided for, we come to the superstructure.

Resolved,—6. That if the defendant shall, in whole or in part, deny the facts stated by the pursuer, or shall in his defence make any averments, in point of fact, which shall subsequently be denied by the pursuer, the Court or Lord Ordinary respectively, on the requisition of either party, or the Court at their own discretion, shall order that the issue of fact shall be tried by a jury, except in such cases as it shall be found proper to except from this rule.

“7. That when it appears to the chamber, or to the Lord Ordinary, reasonable that such issue so directed shall be tried in that part of the country where the evidence can be most easily obtained, it shall be competent to remit the cause to the nearest circuit, to be there tried by a jury.

“8. That whenever, in the inferior courts, proofs shall have been allowed, it shall be in the option of either party to apply to the Court of Session, in order that the issue may be tried by a jury, if the court shall so think fit. But if neither party apply for the trial by jury, the cause may be decided by the inferior courts, according to the forms now in use, and afterwards in review by the Court of Session by jury, or otherwise, as the court shall think fit.

“9. That it shall be competent to parties to complain against verdicts of juries, that the same were given contrary to evidence, or by misdirection of the judge sitting as Ordinary, or on the circuit, or presiding in the chambers.”*

Before I proceed upon the learned Reformer’s plan about jury trial, permit me, my Lord, to submit in the first place, and—Scotland, not England, being the proposed scene of action—without reserve, the use which, on my plan, would be made of that security, in civil suits.

In the second instance, or degree—call it new trial, as being after a former one, though before another judicature—call it appeal, as being from the decision pronounced by my single judge, on the trial carried on by and before himself alone—I would have all causes, so far at least as concerns the question of fact, capable of being brought before this species of tribunal: the first trial being, of course, supposed to have been carried on in the natural mode; as in the English courts of conscience, the Scotch small-debt courts, the courts in both countries composed of justices of the peace, acting on civil occasions (as in some instances they do) out of general sessions—and so forth.

In the first instance, I would not have any civil cause ever brought before a jury: either of course, or, as proposed in the resolutions, at the instance of a party, or by order of the court.

And now I will submit to your Lordship, as shortly as I can, why I would have jurytrial in all causes in the second instance, and at the same time why I would not have it in any civil cases, in the first instance: it being all along understood, and carefully remembered, that the decision in the first instance has been come to in the natural mode.

1. Trial by a judge, a single judge, is the original, domestic, natural, most simple mode: as such, it ought not to be departed from without some special reason.

2. Trial with the addition of a jury has for its inseparable accompaniment more or less of additional inconvenience, in the shape of delay, vexation, and expense.

3. Jury trial, therefore, cannot be subservient or reconcilable to the ends of justice, any further than as it affords an additional security against misdecision, including, what is equivalent to misdecision, failure of justice.

4. That it is capable of being made to afford a highly valuable security against misdecision Edition: current; Page: [30] I admit, or rather I aver, and am ready upon occasion to maintain: but, as this is admitted on all hands, to argue it here would be superfluous.

5. That it affords a general persuasion of security against misdecision, is also admitted on all hands: and therefore need not here be argued. And this advantage, though intimately connected with the other, is perfectly distinct from it, and abundantly more valuable.

6. Its affording any additional security, depends upon its being thought to do so, by one or other of the parties: they being, as to this point, in each individual instance, the only persons competent to judge. If, in the decision pronounced by a single judge, there be not in the opinion of either party any misdecision, i. e. if neither of them be dissatisfied with it, no other person can have any reasonable ground for supposing any: and if no misdecision, no additional security against misdecision can be of any value.

But neither a suitor, nor any one else, can have any rational ground to be dissatisfied with any decision—with a decision formed by a single judge—till he knows what it is.

7. Upon the same causes, will the general persuasion or opinion of security against misdecision, as obtainable from jury-trial, depend.

8. Therefore, in respect of security against misdecision, jury-trial, in the second instance and not before, is not less good than jury-trial in the first instance.

And now I will submit to your Lordship why, in respect of security against misdecision, jury-trial, in the second instance and not before, is better than jury-trial in the first instance.

I. In whatever cases, if any, it is neither necessary nor possible that jury-trial should contribute anything in the way of security against misdecision, in all such cases jury-trial in the first instance is purely bad: consequently, in all those cases, jury-trial in the second instance, in so far as it imports exclusion of jury-trial in the first instance, is preferable.

But cases of this description exist, and in the whole to a very considerable extent: probably much beyond all the others put together.

In this predicament stand undisputed causes. In the Report of the committee of the House of Commons (order for printing dated 2d of April 1792,) on imprisonment for debt (p. 27,) the number of bailable writs annually issued in Middlesex alone, is stated at 9,500. So many writs issued, so many actions commenced. But the writs included in this enumeration are such only in virtue of which the defendant is or may be arrested and held to bail. The total number of writs issued, including those in virtue of which the defendant can not, as well as those in virtue of which he can, be arrested—in a word, the total annual number of civil actions of all sorts commenced,—must therefore have been much more considerable.

But in that same report (p. 30) the whole number of civil causes of all sorts annually tried in Middlesex, in the King’s Bench and Common Pleas together, is stated at 750: which, adding those tried in the Exchequer, would unquestionably not have amounted to so many as 1000.

Taking this for the proportion, here then are for every disputed cause about 10 undisputed.

In the same page, the number of actions, annually terminated by writ of inquiry before the under-sheriff of London, is stated at about 924. But in this number the London as well as the Middlesex causes are included: those commenced by bailable writs, as well as those commenced by writs not bailable; and the undisputed as well as the disputed ones: these must therefore be thrown out of the account.

II. In whatever cases, if in any, jury-trial in the second instance, and not before, being not only physically but prudentially practicable, jury-trial in the first instance is physically impracticable, in all such cases jury-trial in the second instance, and not before, is better than jury-trial in the first instance: meaning by prudentially practicable, practicable without additional and preponderant inconvenience, whether in the shape of increased probability of misdecision, or of increased delay, vexation, and expense. But there are several of these sorts of cases; and, in the whole, to no inconsiderable extent.

III. So where, being in the second instance prudentially practicable, as before, in the first instance, though not physically, it is prudentially impracticable. But there are also several of these cases: and here, too, in the whole, to no inconsiderable extent.

IV. So where, being in both instances prudentially practicable, it is, in the second instance, and not before, practicable to more advantage than in the first instance, whether in the way of saving of delay, vexation, and expense, or in the way of security against misdecision, or in both ways.

For the purpose of conception, cases where jury-trial in the first instance is physically impracticable, and those in which it is only prudentially impracticable, may, as above, be considered separately:—But, for the purpose of exemplification, they can no otherwise be considered than together.

Why? Because to exhibit the forms of jury-trial will in every case be physically practicable, whatsoever becomes of justice.

In a civil case, not to speak of criminal cases, whatever cause is decided by a jury, such cause, if tried under that condition which is regarded, and justly, as essential to jury-trial—that Edition: current; Page: [31] is, to whatever superior security, real or apparent, against misdecision, it may be capable of affording—must be tried in the compass of a single sitting: or, what comes to the same thing, if any adjournment take place, that adjournment must be performed in such a manner that the jurors shall not, any of them, have any communication with the world at large: in a word, they must be in a state of seclusion, as in a Roman conclave. In civili, no instance of a jury sleeping before verdict ever reached my knowledge. In criminali, in the case of Elizabeth Canning, who in 1754 was convicted of perjury, the trial lasted ten days: during all which time, if in this respect the trial was properly conducted, the jury must have been kept in a state of seclusion: though in the account of the trial (State Trials, vol. x.) I see nothing mentioned on that head.

The operations for which, in every instance, time either is, or eventually may be, necessary, are—1. Delivery of the evidence—whether testimonial, written, real—whatsoever the cause affords. 2. Observations preliminary and subsequential, by or in behalf of the parties on both sides. 3. Charge of the judge, including recapitulation of the evidence where necessary, and observations. 4. Discussions among the jurymen, when withdrawn to their private chamber for that purpose.

But the cases (the individual cases) in which the complete performance of those several operations is physically impossible, are very materially numerous—bear a very considerable proportion to the whole number of causes destined, in appearance at least, to this mode of decision, as being commenced in a mode which admits not of any other.

Of these four operations just mentioned, three are comparatively immaterial: viz. observations by or on behalf of the parties, charge by the judge, and discussions among the jurymen: and the two last, either or both, are not unfrequently omitted in practice.

But the delivery of the evidence—of whatsoever information, being presented in that character by either party, is neither irrelevant nor superfluous, is essential to the affording the requisite security against misdecision—is essential to justice.

Numerous are the causes which receive their decision from arbitrators:—in some instances, without litigation in the regular mode: in other instances, after litigation in the regular mode: the cause, coming on in its turn to be tried by a jury, is, in this case, instead of being so tried, referred, somehow or other, to arbitration; if not otherwise disposed of.

When, in this way, instead of being tried by a jury, a cause is tried by arbitrators, the mass of evidence is not unfrequently of such a bulk, as to be incapable of being delivered in less time than several days, perhaps even weeks. As often as this state of things has taken place, the employment of jury-trial in the first instance has thereby been proved to be prudentially impracticable.

Physically impracticable, however, if no regard be paid to the ends of justice, it can not in any such case, it can not in any case, be said to be. If, the mass of relevant and not superfluous evidence being of such a magnitude that the delivery of it cannot be performed in less than ten days, no more than ten or twelve hours be allowed for the reception of it, but at the same time the forms of jury-trial are observed, and a decision—a verdict—extracted from the jury, in this case jury-trial is not physically impracticable, for it is practised.

In this case, the best thing that can happen to a cause, is—that jury-trial shall in that instance have been deemed and allowed to be impracticable. For then the attempt to try it in that mode is given up, and it is sent off to a reference, or otherwise disposed of.

If this be not its fate, a cause thus incapable of receiving a trial by jury, in the first instance, in a manner consistent with the ends of justice, receives it notwithstanding. As often as this happens, the party who is in the right is divested of that superior chance of success, which, if the cause were tried properly, he would possess: his chance of 2, 3, 4, or whatever it be, to I, is reduced to a chance of 1 to 1;—is an affair of cross and pile.

Remain to be spoken of the cases in which, though when absolutely considered, jury-trial in the first instance cannot be said to be, either in the physical or prudential sense, impracticable, it is yet ineligible: ineligible, to wit, in comparison of jury-trial in the second instance, and not before:—and that for special reasons, over and above the already-mentioned general ones.

Causes thus circumstanced, there will presently be found reason for distributing into two classes: both of them, however, agreeing in this—viz. that, if (according to the standing supposition) commenced in the natural mode (by conjunct appearance of the parties,) they would be incapable of receiving, consistently with the ends of justice, their termination on the same day on which they thus receive their commencement. Whether or no the cause can or can not receive its termination, at a period thus pure from delay, vexation, and expense, cannot be known till something in relation to it is known, viz. from the only authentic source—till the parties, being thus met together, have been heard: and as a considerable proportion of the whole number of causes may and do receive their termination at this early period, the measure Edition: current; Page: [32] taken for the attainment of the ends of justice would be imperfect, jury-trial being employed in the first instance, if, at the very commencement of the cause, a jury were not in waiting to receive it. But, as before observed, when once they have begun their business, a jury, to remain a jury, cannot part till they have gone through with it. As often, therefore, as it turns out, that, from the jury before whom the cause has thus been commenced, it cannot receive its termination, this jury must be discharged from it; and, if decided in the way of jury-trial, it must receive its commencement and termination together, before some other jury, at some other time.

Here then, besides so much of the labour of twelve men in the character of jurors thrown away, there is so much time and labour thrown away on the part of all other persons who bear any part in the cause:—judge, subjudicial officers, parties, and, if they have any, their professional assistants, with the money expended in affording a retribution to those assistants.

Moreover, of a cause thus circumstanced, another jury could not take cognisance, without further manufacture of useless delay, vexation, and expense. Whatever evidence had been submitted to the first jury would have to be submitted over again to the second.

Meantime, for want of taking it at the earliest period, some of the evidence, which but for this second jury-trial might have been had, may have been lost: and thereby deception and misdecision generated.

Moreover, of the first crop of evidence, more or less of the freshness and instructiveness may have been lost: time having intervened for premeditation, opportunity of receiving undue instruction, information from experience what falsehoods stand most exposed to detection or contradiction, what others may be hazarded with less risk. Then too comes, perhaps, an inconsistency, real or supposed, between the first edition of the evidence and the second: and discussions carried on, and time consumed, in the endeavour, successful or unsuccessful, to clear it up.

These, it is true, though not altogether without their concomitant advantages, are inconveniences inseparable from the sort of appeal called a new trial, if conducted with that full liberty of confrontation and discussion, which is necessary to the taking the best chance for the discovery of truth. But their being in that case unavoidable, is no reason for incurring them where they may be avoided.

Many, likewise, are the instances in which it would be impossible to fix a particular day for another jury, unless it were at a venture, taking the greatest length of time that in any event can be necessary. Here, then, is an indefinite quantity of delay produced, that under a permanent judge might be avoided: for, under a permanent judge, each article of evidence naturally will be, as it ought to be, received on the earliest day on which, without preponderant inconvenience, it can be had.

I come now to speak of the two classes of cases above alluded to, both comprisable under the above description, but, in a highly material point of view, standing upon very different grounds.

One case, and the more common of the two, is when the mass of the evidence which the cause furnishes, having been delivered in part, viz. so much at least, if any, as had fallen within the cognizance of the parties, or either of them, the remainder, though known to the parties by whom it is respectively to be produced, is not forthcoming at the time. “My demand,” says the plaintiff, “will be proved by Oculatus: but he lives at a distance, and it requires the power of the court to secure his attendance: or it will be proved by such or such a written document: but that is in the hands of Custos; and Custos would neither bring it nor trust it out of his hands.”—Say then,

Case 1. Evidence, all known, but not all forthcoming:—or rather, to contrast the better with the other case.—Evidence, though not all forthcoming, all known. Say now,

Case 2. Evidence, the existence of it more or less of it unknown: requiring to be brought to light; viz. by investigatorial procedure.

Investigation or investigatorial procedure—a new and necessary name, for a practice in common use, but not as yet sufficiently distinguished.

Investigatorial power—power for tracing out evidence, in the way of investigatorial procedure:—for the discovery of evidence ultimately employable (evidence fit to be received into the budget of evidence, as parcel of the mass on which the decision may with propriety be grounded,) by means of other evidence, whether itself ultimately employable or not. From his connexion with one or other of the parties, or from any other relative situation, real or supposed, A is supposed to be capable of furnishing relevant evidence. When convened, A, of his own knowledge, knows not anything about the matter: but, through him, the judge hears of B, who does. So, in regard to written or real evidence, A has not the document sought: but he indicates B, who is supposed to have it. B, being convened, if he has it, produces it: if not, he indicates C, who, if he has it, produces it: if not, he indicates D:—and so on through the alphabet.

In what precise shape the assistance rendered to justice by this power shall show itself—against which of two evils opposite to the ends of justice it shall afford a remedy—failure Edition: current; Page: [33] of justice or misdecision—depends in each case upon circumstances.

Suspecting, nay, assured of the existence of the requisite mass of evidence; but, for want of this necessary instrument, feeling his inability to bring it to light, in many instances the plaintiff, despairing of success, forbears to present his demand to a system of judicature, of whose inability to give effect to it he is thus pre-apprised. In these cases, failure of justice takes place: but nothing worse.

In other cases, assured of having right on his side, but not sufficiently attentive to the obtaining a timely assurance of the means of giving effect to it, he commences his suit, and afterwards, with an article of necessary evidence in his view, understands, when too late, his inability to produce it. In this case, the mischief takes the shape of misdecision: misdecision, to the prejudice of the plaintiff’s side, for the want of necessary evidence, existing but not producible. And here, to the suffering attached to the failure of justice, is added the vexation of disappointment, and the expense of the costs on both sides.

Thus stands the matter, where the mischief that takes place for want of this power falls on the plaintiff’s side. But the defendant’s side, though not quite so much exposed to it as the plaintiff’s, is far from being exempt from it. When it falls on this side, it is in the more afflictive shape that it falls:—misdecision, aggravated by burthen of costs.

Be the case criminal or civil, your Lordship sees how necessary an instrument this power is to the hand of justice: how lame, how paralytic, that sacred hand cannot but be, if deprived of it. A few pages further, and your Lordship shall see—if not justice, judicature—technical judicature—standing with her shrivelled hand, lame of that palsy. The right hand,—the hand by which justice should be distributed, may be seen, from a variety of other causes, subject to those fits: while the left hand—the hand which, by a pre-established mechanism, gathers in and closes upon the fees, as the Dionæa upon flies, is ever alert and vigorous.

When, at the outset of the cause, any part of the mass of evidence which it affords is unknown, the tracing it out thus from hand to hand may, considering that the hands may be at any distance from each other, occupy any length of time: the evidence of witness A being obtainable on one day, of witness B not till another day, week, month, or even year, and so on without any certain limit: half a dozen witnesses not examinable but at so many different days: on each day it being uncertain whether the next day may not complete the mass of evidence. That on each day a jury should be in waiting, for the purpose of taking the chance of being able to give termination to the cause on that day, is an arrangement, the impracticability of which will scarcely be thought to stand in need of proof.

To warrant the judge in causing the mass of evidence to be laid before a jury, whether summoned for that special purpose, or already in waiting for general purposes, there must be a sufficient assurance on his part, that all the evidence which, in his judgment, the cause is capable of furnishing, or such part of it as is necessary and sufficient to ground a decision on either side, is already forthcoming, or will be so time enough for their taking cognizance of it.

On this occasion, let it not be forgotten, that, till an article of evidence has actually been received, there can never be any perfect assurance of its being forthcoming: to whatever class the evidence belongs, testimonial, written, or real, accident or design—misconception or right conception—may, when the time comes, have kept it at a distance:—and to all these contingencies, the jury’s capacity of fulfilling the purpose for which they are brought together remains for ever subject.

But, in the case of the permanent judge, if the whole mass of the evidence has thus been really got in—got in by himself—he perfectly acquainted with it—having received it in its original and freshest shape—the grounds of the decision which the case calls for being thus completely known to him—the case in effect already tried by him—to what use try it over again, if, of all the persons concerned, there is not one who desires to have it so?

To parties, to witnesses, to juries, to judge, to everybody, double trouble: useless and factitious delay, vexation, and expense: and (fee-fed lawyers always excepted, to whom everybody’s suffering brings advantage,) not a particle of advantage, in any shape, to anybody.

In every case, no sooner is the cause become ripe for decision, than my single judge, my sheriff-depute, unincumbered with a jury, circumduces the proof (as a Scotch lawyer might say,) closes the budget, as I would say, and pronounces—not an interlocutor—but final judgment. Now from this decision, pronounced without an atom of time or money wasted, what possible prejudice can result to justice? The party to whose disadvantage it operates, is he satisfied with the decision? Nothing better could be wished for, had the cause been dragged through a thousand jury-boxes. Is he dissatisfied? He has a jury: he has it, in that case, and in that case alone, in which he desires to have it:—in which it will be—not an aggravation, but a remedy.

Supposing jury-trial, or the forms of it, forced upon the parties in every case in the first instance, the bad effects of this force Edition: current; Page: [34] are not confined to the loading the cause with this cumbrous additament where it is worse than useless; your Lordship has seen it depriving the cause of the benefit of this security against misdecision, in cases in which it would be of real use:—how frequently these cases come to be exemplified in practice, is a point which I shall have occasion to speak to presently.

At present, what I have to submit to your Lordship is—that when grafted on natural procedure, as above, the utility and efficacy of the proposed postponement is not more signal, in narrowing the application of this mode of judicature where it is useless and prejudicial, than in extending the application of it, wherever it is of real use. For, though there are cases, and to a very considerable extent, in which, in the first instance, the use of it is impracticable, and even generally recognised as being so, there is no case in which it is not practicable in every sense, when postponed as above to the second instance.

For this purpose it rests with the judge (in the first instance the same judge, eventually, in case of appeal for that purpose, the superior judge) to decompose the mass of evidence. If (as will generally be the case) the whole of it (that is, so much as one or other of the parties insists on having repeated) be not too much to be laid before one and the same jury, so much the better: but if, in the whole, there happens to be more than a jury can receive on such terms as to do justice to it—receive in the compass of one sitting—the cause being in such sort and degree complex as to contain at the same time (as, when of such bulk, it can scarce fail to do,) divers integrant parts, independent of each other, it may in such case be distinguished and resolved into its integrant parts and different integrant parts, or assemblages of integrant parts, given to so many different juries.

By integrant part, I understand so much of the mass as is delivered by witnesses, whose testimonies respectively have a connexion with each other: the testimony of each witness operating either in confirmation or information of that of the rest.

The mode and degree of complexity just described will frequently be exemplified, where the case includes a number of facts (whether individual or habitual) having, in respect of probability or improbability, no connexion with each other: 1. Debt, founded on goods sold and delivered at different times; 2. Demand on one part, set-off on the other; 3. Promise made at one time, broken at another.—Thus, in adultery:—1. Marriage celebrated at one time; 2. Alleged adultery (of course) at another; 3. Wife’s loose intercourse with other men, habit provable by one set of witnesses; 4. Husband’s loose intercourse with other women, habit provable by another set of witnesses; 5. Husband’s cruelty towards the wife, habit provable again, perhaps by another set.

But, of the time occupied by each such integrant portion of the mass of evidence, measure, complete measure, has been already taken;—taken by everybody concerned—by judge and parties. It is therefore a point pre-ascertained, and to as great a degree of accuracy as is material, what length of time the delivery of the whole and each part of the mass will occupy, when repeated before a jury.

Separating it into masses of competent length, as many as the extent of it requires, he distributes it to so many juries, giving to each jury one or any greater number of issues. One, to try the entrance into the marriage-contract, for example, if it be matter of dispute; as in Scotland, where the contract may be made, as it were, by habit: another, to try the fact of the adultery, and so on.

But, after the evidence has been once gone through—gone through in all its integrant parts—it will seldom indeed happen that the disagreement in opinion—I mean that between the losing party and the judge—will extend over all the parts. So many as the disagreement does not extend to, so many the evidence to which need not be repeated. By the party by whom the decision is complained of, of the number of facts, and corresponding integrant parts of the evidence on which it was grounded, a greater or less part will commonly, if not before, at least after the delivery of the evidence, be admitted. Thus in adultery, suppose the fact of the marriage once put out of doubt, by the uncontradicted and unquestioned testimony of the clergyman or other person by whom it was celebrated, or by evidence of cohabitation under the same name and the same roof for years;—to what use, after witnesses once heard, and the matter put out of doubt, drag them from their homes, to put it out of doubt a second time?

If, then, in such a case, for the purpose of vexation, a party should insist upon such repetition of proof in the second instance, of a fact put out of doubt in the first instance, let him do so, but at his peril: the judge à quo marking it as vexatious, it will rest with the judge ad quem, with or without the concurrence of the jury, to mark it out for punishment: to punishment in the shape, and to the extent of costs, at any rate.

Instead of being distributed among divers juries, to be decided upon, all at the same time, the integrant and distinct parts of the mass of fact may be given to different juries, or even to the same jury, to be decided upon at different times:—to the same jury not so well, on account of the danger or suspicion of embracery, and so forth.

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In one case, the trying these different parts of the cause at different times will he attended with particular advantage. This is where, pronounced in one of the two opposite ways, a decision given on one of the several component parts of the cause thus decomposed, renders the trial of the rest, some or all of them, superfluous. Thus, no contract, no breach: no marriage, no adultery.

Such are the advantages which jury-trial, in the second instance, possesses over jury-trial in the first instance, even when grafted on the best possible mode, upon the best and soundest stock—I mean natural procedure.

I will now beg your Lordship’s notice for the advantages of jury-trial in the second instance, as compared with jury-trial in the first instance, grafted, as under the husbandry of learned gentlemen, upon the corrupt and cankered stock of technical procedure—stock and graft together, the tree of good and evil, not to say of evil without good—factitious delay, vexation, and expense, the fruit of it.

The conception entertained by Scotchmen, of common-law procedure in civil cases, with jury-trial in the English mode, will be very incomplete, if, to excess of delay, they do not add excess of precipitation: for, in the composition of it, vices of this opposite nature meet and embrace in the most perfect harmony. With the help of vacations (that is, pre-established denial of justice for weeks and months together,) and fixed days, and mechanical judicature (of which in my first letter,) instead of a small part of one day, or a small part of each of two days (for where the ends of justice are the objects—I speak of the courts of conscience—a great majority of the whole number of causes actually take no more,) six months or twelve months, or a great many more months—in a cause as simple as any that ever came before a court of conscience—consumed in doing nothing, or worse than nothing:—delay, the staple commodity of Judge and Co., manufactured in this wholesale way, for the accommodation of their best customers, the malâ fide suitors. Then come circuits, one or two in a year, according to the latitude: from part of one day, to the whole of three or four days, allowed to a place, whatever be the number of causes to be tried at it, and whatever the quantity of time required by each:—a short and limited length of time, and that frequently short in the extreme, for an unlimited quantity of business.

Alas! where, my Lord, is the wonder?—That for which sufficient time cannot in any case be wanting, is—receipt of fees: that for which it matters not how short the time, is the service to be performed in consideration of those fees.

Has delay its profits? Precipitation is not less productive. But your Lordship will see:—

Of the whole number of causes set down for trial in a year, one part (who can ever say how large a part?) tried badly: another part, as yet unknown, but not incapable of being known (it rests with your Lordship to know it,) and, in the mean time, known not to be a small one, not tried at all. When this is the result, there are three modifications, among which it takes its chance, all of them repugnant to justice.

I. One is, the going off in the character of a remanet, or remanent: i. e. to be tried at the next sittings or assizes. Consequence of the postponement as follows:—

1. Delay. Cause (suppose) pecuniary—(plaintiff in the right, as in general he is)—loss of interest on the principal representing the value of the property adjudged by the verdict: amount of interest, if at the sittings, say three months; if at the assizes, elsewhere than in one of the four northern counties, six months: if in any of those counties, twelve months. For this is among the punishments a man is loaded with, for the offence of living in the country, and the doubly heinous offence of living in the northern parts of it.

2. Expense. Expense of trial somewhat less than doubled, on the second—(trial, it cannot be called, the cause not having been tried when it should have been tried, but—) setting down of the cause upon the list of causes that ought to be tried—some abatement, perhaps, in the professional fees: in the official, scarcely.

3. Danger of misdecision, or equivalent failure of justice, in consequence of the delay: deperition of necessary evidence, deperition of the matter of wealth, in the hands of the adverse party, in the character of eventual matter of satisfaction:—deperition, viz. with reference to the party in the right—by dissipation, by concealment, or by exportation.

II. Another mode of termination is by what is called a compromise: which, being interpreted, is denial of justice.

By the terrors of remanentcy, as above explained, the plaintiff consents to accept a part of what is his due, giving up the rest. By consent, the traveller gives up to the unlicenced plunderer what money he has about him, in order to save his life. By consent, the plaintiff gives up to the malâ fide defendant, armed with delay, put into his hands by his learned partners, value to any amount, viz. to whatever can be agreed upon, with extortion on the one part, and distress on the other, to settle the account.

III. The third and last remaining mode of termination is by reference. Reference is either to one referee, agreed upon on both sides, or to two or more referees, called arbitrators, named, one or more, seldom more than one, on each side.

Referees may be either lawyers, or non-lawyers: Edition: current; Page: [36] lawyers, very frequently:—whether most frequently or not, is more than I can take upon me to pronounce: it is among the thousand things in and about law, worth knowing and not knowable.

In this case, this is what a man gains by having recourse to technical procedure; to that which by courtesy passes among lawyers by the name of justice:—the advantage of finding himself, at the end of the suit, in the same situation as he was at the commencement of it, always excepting what concerns the delay, vexation, and expense:—licence to obtain justice, if he can, at the hands of non-lawyers, or lawyers—after paying for it, and not getting it, at the hands of lawyers.

Does your Lordship feel any such curiosity, as that of knowing the number, absolute and relative, of these causes in which justice is paid for, and not done? In your Lordship, will is volition, clothed and armed with power—in me, it is bare inert velleity:—meantime accept at my hands what chance presents to them:—

Times Newspaper, 16th December 1806.—“Yesterday morning, in the Court of King’s Bench, Guildhall, eight causes for special juries appeared on the list for trial. They were all referred: in one only, a verdict was taken, pro formâ, for the plaintiff.”

The whole number without exception—in all of them justice paid for—in all of them justice denied! This, where time for trying them, for pretending to try some one of them at least, could not be wanting. Sent off untried? For what reason? To all appearance, because, in the instance of each such cause, there was something in its complexity, and thence in its length or intricacy, that rendered it incapable of being so tried, even by select men, men of cultivated minds, to any good purpose. The causes, London causes, and those special jury causes; therefore mercantile causes of the higher order:—causes naturally attended with a large measure of complication.

Here, no want of time: the causes therefore capable of being tried, one or more of them, that same day, howsoever badly. How then must it be at the assizes?—where, to any degree of complication, and thence of prudential impracticability, is so frequently added absolute physical impracticability, through denial of necessary time.

In another case—the date of which I must beg to stand excused from mentioning—while the pleadings are opening, counsel for defendant proposes a reference, which the plaintiff, being present, at length assents to. A referee, really above all exception, and pro hâc vice a non-lawyer, is agreed upon. The noble and learned judge, having perused the pleading, certifies them to be very intricate, highly approves of the reference, and declares that it does credit to the counsel on both sides.

The virtue of candour—your Lordship sees (for, if this be not the proper name of the virtue thus displayed, I must confess my inability to find for it any other)—the virtue of candour (for this is the virtue I have heard named a hundred times on similar occasions)—in short, whatever the virtue displayed on this occasion was,—was displayed by learned gentlemen: and, lest virtue should fail of its reward, the praise of this virtue, whatever it was, was, with accustomed liberality (virtue for virtue,) bestowed upon them by the noble and learned lord.

My Lord, though of my own knowledge I know nothing respecting the correctness of this account, I should find no sort of difficulty in crediting it. In the state of things in question, it is natural that learned gentlemen should display such virtue: it is natural that learned lords should bestow such praise on it: not unfrequently has it happened to myself, to hear like virtue rewarded with like praise. Without any loss of fees, the whole body of learning, lord and gentlemen together, gains so much ease: the whole body of learning goes so much the sooner to its dinner. Ever and anon, learned gentlemen, one or more of them, acquire the faculty of displaying other virtues in the character of referees: the virtue of justice, in the award when made: the virtue of patience (for fees de die in diem are no slight pledge of patience) by the care taken not to be precipitate in making it. The whole body of learned gentlemen acquire ulterior chances for ulterior displays of virtue: by motions for setting aside the award when made: by motions for attachment for non-performance of it:—two species of motion-causes, setting out from opposite sides, but meeting at the same point.

Here, then, we see a species of judicature, of which the distinguishing characteristic is the being altogether inapplicable in effect, in a large proportion of the instances in which it is applied in demonstration and pretence: a feature of deformity altogether without parallel in the worst mode of judicature that can be found in the same country or any other. And this is the species of judicature, which, in a plan of reform, it is proposed to introduce, and without any change, into a country as yet unvexed by it.

Day by day, this mode of judicature is seen to stand in point-blank repugnancy to the ends of justice: practicable, only in demonstration and grimace: impracticable, prudentially, and even physically, in effect. In every such instance, the real effect of the institution is to serve the partnership, and particularly in the higher branches, in the character of a false pretence for receiving money—receiving without earning it.

But the oftener the repugnancy is brought to view by experience, the oftener this pillage Edition: current; Page: [37] is repeated, the more abundant are the occasions on which this meed of praise is earned on one part, bestowed on the other. The murmurs of suitors are drowned in a concert of praises: a concert, in which lawyers, all amateurs, are sole performers: a concert performed by them, for their own benefit, and at the expense of justice.

I speak not here of the cases, numerous and extensive as they are, in which the jurors are mere puppets, their minds no more applied than that of the Emperor of Morocco to the decision given in their name:—Special verdict found for them by learned gentlemen, jurors contributing nothing but a stare:—verdict taken for them on this or that one of half-a-dozen or a dozen counts; said counts all lawyers’ lies but one:—one of the twelve taken in vision out of the jury-box, that the absence of the plaintiff, who stands before them, may be recorded by order of the judge—(Alas! I was confounding—though in perfect innocence—lie with lie;—withdrawing a juror, to make a drawn battle; and calling the plaintiff, that, by saying I am not here, he may, under the loss of that cause, console himself with the prospect of losing another.) These, with instances in plenty that might be added—more apposite, more impressive, if they were worth looking for—would, if detailed, make it necessary for me to attempt to drag your Lordship’s conception, along with my own, through the filth of fiction:—and sufficient to the day is the evil thereof.

To those whose love for the system rests on the imposture mixed with it, all this appears right and proper: the appearance of a jury, and the people deluded by it, which is all that is wanted. But my jurors, my Lord, are not puppets. I wish not to trouble them often; but when they do come, they come for use, and not for show.

All that mockery would vanish of course, were the cognizance given to the jury reserved, as proposed, for the second instance.

On this occasion, a word or two more may perhaps be not ill bestowed on the practice and power of investigation. In natural procedure, there being no bars to shut it out, it takes place (your Lordship has seen how,) of course.

Without any special authority (for there needs none,) every justice of the peace exercises it, whether sitting out of general sessions, and thence free from technical trammels, on matter submitted definitively to his cognizance, or carrying on, under the statute, a preparatory examination in a case of felony. Under the like liberty, every committee, and every commission of inquiry, pursues, for the discovery of truth, the same necessary course:—pursues it, through any number of intervening links or channels; regardless (nothing calling for regard) of the difference between this less direct, and the more direct or immediate mode, of obtaining ultimately-employable evidence.

The case is—that it requires art and contrivance—science and regularity—to bereave the hand of justice, of an instrument at once so natural and so necessary.

Such ingenuity is not wanting to English-bred technicalism. The effect is produced by confining the efficient part of the course of procedure within the compass of one single sitting. A, who knows nothing, indicates B, who knows everything. But before B can be so much as sent for, the jury-box is emptied.

As little is it wanting to Rome-bred technicalism. A, who knows nothing, indicates B, who knows everything. No want here of time: sittings in any number: judge’s pay—(for an examiner or examining commissioner is a judge)—judge’s pay per diem; other learned persons’ pay per number of words: words and sittings consequently not scarce.—A, who knows nothing, indicates B, who knows everything. But the scene lies in the judge’s whispering-closet: from which all who have any interest in the discovery of the truth are carefully excluded. The persons to be examined are predetermined: and, by the solemnity of an oath, the seal of secresy is applied to the lips of the judge.—A, who knows nothing, indicates B, who knows everything. But B, who knows everything, is unknown to the persons without whom he cannot be had.

Such being the imbecility of the trunk (I speak of Rome-bred procedure,) such is it in four at least of its branches:—Continental law in general:—English equity law:—English (coinciding in this point with continental) spiritual law:—English (coinciding with continental) admiralty law.

If everywhere the hand of justice labours under this palsy, it is because everywhere she has found such regular-bred practitioners to tie up the nerves.

An occurrence, that happened not many years ago—one of a thousand that are happening every year—may help to place in broader light the two companion pictures—of real justice, in her native vigour, and sham justice, in her straight waistcoat.—A man dropped out of his pocket bank-notes to the amount of about £500. They were found by another man, who, being poor and illiterate, was unconscious of the value of his prize. The value opening to him by degrees, he fell into negotiations with Jews and Gentiles, and disposed of it, or a part of it, at an under value. It was a case for trover: out of the multitude of instances in which the action so denominated is brought, one of the very few in which it can be brought without a lie. No one to make oath of felony, or cause of suspicion of Edition: current; Page: [38] felony. No felony, therefore no legal ground for examination by a justice of the peace. But among unlearned judges in general, and among those of the London police in particular, strange as it may seem to learned ones, there does exist a sort of principle or whim, whatever be the proper name for it, called the love of justice. It is by this principle, or this whim, that they are led, on such a variety of occasions, to “do good by stealth,”—your Lordship will see how: and as they never find it “fame,” that being a monopoly in the hands of their learned betters, whatever is done by them in that way, is without any expense to any body in the article of “blushes.” In the particular instance in question, at the Queen-square police-office, Mr. Colquhoun, hearing of the loss, took the business in hand: and, laying about him, with his so well known activity, in this irregular way—hitting the mark by pushing in quart, where learning would have missed it by pushing in tierce—got back for the loser his £500, except a small part that had been spent. From link to link, he followed up the chain of information, as if it had been by an examination, carried on under the statute in a case of felony. Warrant none, there being no legal ground for any such coercive instrument: no witness convened but by a summons; to which, had the impotence of the technical system, to this, as well as so many other good purposes, been known, no regard would have been paid. Fortunately for justice, poverty, or simplicity, or terror, withheld the confederates, one and all, from applying to an attorney. If justice be a friend to man, the omission was fortunate: since it is to that she owes that technical judicature, or its terrors, did not tie up her hands.

All the learning in Westminster Hall, armed by all its power, would not have got for the man a single farthing of this £500. The finder, with the money in his pocket, would have moved off, or spent it, or shifted it from hand to hand. To the loser, the best thing that could have happened would have been, to be apprised in the first instance of the impossibility of recovering the money, and so to have sitten down quietly with the loss. Another result would have been, the commencing the action, and for want of that power of investigation which in a civil case technical procedure does not give, suffering a nonsuit, or judgment as in case of a nonsuit, with three or four or five score pound to pay, for costs on both sides. Another, and still worse misfortune, would have been the getting a verdict, and thereupon, by a sort of a vehicle called a writ of error, find himself set down, and then hung up, in a place called the Exchequer chamber, where he would have had a year to cool his heels, while the finder was spending or securing the remainder of the £500:—deducting, inter alia, for merit crowned with learning and nobility, a slight retribution, of which Lord Ellenborough can give your Lordship a much more particular account, than it is in my power to do at my humble distance. But of this in another letter, in which your Lordship may take a nearer view of the difference between the love of justice and the love of fees.

As to Scotch judicature, though another twig of the old stock, I should hope to find that, somehow or other, she has escaped this palsy; or, at the worst, that it has its intermissions. No jury: therefore no necessary compression of a trial into a space of time incapable of holding it. At Edinburgh, the Lord Ordinary—that is, not he, but a clerk, or a clerk’s assistant (Lawrie, p. 110,) takes the evidence; and, if he proceeds in the manner of the Lord Ordinary on oaths and witnesses, he admits “parties and their advocates” to be present (ib. 105:) and in the country “before commissioners, the depositions are taken (ib. 107) in the same manner as before the Lord Ordinary.” Though learned lords know better than to allow, to any such one of their deputes to whom they intrust this vital part of judicature, the faculty of pronouncing any decision, on the evidence that nobody but himself has heard, or will hear—his door (I see) is not always shut against parties, or at least not against parties’ lawyers; and, seeing no limit to the number of his sittings, the conclusion I draw is—that when A, who knows nothing, indicates B, who knows something, it may happen to B, in that event, to be heard.

Diligence, Scotico-jargonicé, means, inter alia, an order to a man to appear in the character of a witness: for among Scotch, as well as English lawyers, it is a rule, that when a word in use among the people is employed, it may be employed to mean anything but what the people mean by it. Diligences are the nets employed in Scotland to fish for witnesses; and, seeing nothing to hinder but that, from the beginning to the end of the career of factitious delay, diligence may follow upon diligence, I see nothing to hinder but that when it happens to an ignorant witness to have pointed out a knowing one, the knowing one may be heard.

But, under the management of your Lordship’s learned reformer, English is to be the model of Scotch justice:—Juries, for ever! and in the true English style! And thence comes my apprehension, that, either for want of thought, or from thought twisting itself to the sinister side, this palsy may be inoculated into Scotch justice, along with so many others from the same source.

Thus stands the matter, in respect of the provision made for the discovery of sources of evidence as yet unknown. If in this deficiency Edition: current; Page: [39] in the system, the situation of the authors considered, there appear not much cause for wonder, there will appear still less, when it is observed how, by another of its vices, sources of evidence already known are exposed to perish without remedy. During the six or twelve months, or any greater number of months, of the factitious and unabridgeable delay, fortune is not always idle. A necessary witness, whose testimony would, under the natural system, have been collected the first day—this necessary witness (suppose) dies: thereupon, along with him, perishes the plaintiff’s or the defendant’s right:—for in all that time, the system has afforded no possible means of preserving his evidence.

For the relief of this disorder, under English law so carefully inoculated and nursed by one sort of lawyer—the common law judge—up comes another sort of lawyer—the equity judge—with his sham remedy: bill in equity for examination in perpetuam rei memoriam, or examination de bene esse.

In both these instances, a previous suit in equity is necessary:—with its attendant train of extra delay, vexation, and expense.

In both instances, the evidence is collected in the bad mode—put into the bad shape—attached to that modification of technical procedure:—with its attendant danger of misdecision.

In the case of the examination in perpetuam rei memoriam, the suit has no other object:—and, admitting of no decision, ends when that object has been obtained, or found unattainable.

In the case of examination de bene esse, a suit having an ulterior object being already instituted, the effect of the application for an examination in this mode, or rather upon these terms, is only to procure the examination of this or that witness to be accelerated;—performed before the defendant’s answer has come in, though not before he has appeared (i. e. without appearing, has submitted to employ an attorney in his defence;)—performed at that premature period, antecedently to the stage appointed by the general rule for the examination of all the witnesses.

In both cases, there is a chance—but, on this occasion, it were far too much to undertake to explain what chance—that the evidence so collected under the authority of a court of equity may come to be employed in a trial at common law, and laid before a jury.

But in neither case can it be so employed, unless the witness so examined be, by death, or perhaps by incurable infirmity, disabled from attendance. Moreover, in both cases, besides that this remedy, even when admitted to be applied, is thus inadequate, and no less apt to afford aggravation than relief, so scanty is it in its application to the field of law, as to cover but a small fragment of the extent of the demand.

No such remedy, where the person of the plaintiff, or of any one else, through whose person his mind is wounded—none where his reputation is the subject of the injury.

No such remedy, where, the subject of the injury being this or that individual article of specific moveable property, the injury consists in destruction or deterioration, the result of negligence or malice.

No such remedy, in a word, beyond the comparatively scanty range of equity jurisdiction; of the imperfection of which, in point of extent, this sample may serve: for, as to the marking out its limits, a mystery, which remains such to the most learned eyes, will not be undertaken to be revealed, especially in a parenthesis, by this unlearned hand.

But, even within this narrow range, it may be a question, whether, upon the whole, justice, so far as jury-trial is concerned, is anything the better for it.

Excepting (for special reasons, too special to be here detailed) the case of a will, the validity of which it is meant to secure against dispute—without some apparent danger of death, as likely to ensue before the witness can be presented to a jury-box, a man will not be apt, even where equity and common law join in allowing it, to betake himself to so expensive a security. Were such precaution natural, the use of it would be general, in all cases in which the importance of the cause presented a warrant for the expense. The case of a will (as above) excepted, the use of this security is in a manner confined to the case where imminent danger is certified by old age or particular infirmity.

The suitor, then (say the plaintiff,) having notice of the indisposition of the witness, if so it be that he has law and reflection enough to be aware of the peril that awaits him, repairs accordingly to his attorney. The scene lying most probably in the country (the country containing seven or eight times as many inhabitants as the metropolis) while he is occupied in procuring an interview with the attorney, or the attorney in corresponding on the subject with his agent in town, and the one or the other in drawing instructions for the bill in equity, and counsel in town or country in perusing and settling the bill or drawing the interrogatories, or the agent in town in performing the operations preparatory to the taking out the commission for the examination of the witness, or while the commission or the commissioners are upon their travels—the patient dies, or loses his recollection, or does not choose to be disturbed, on the subject of a dispute which to him is a matter of indifference:—not to mention that men are apt to die at short notice, that a disorder which proves mortal is not always Edition: current; Page: [40] at the outset known to be so, and that it does not necessarily follow, that because it happens to me to stand in need of a man’s testimony, his manner of life, and the state of his health, lie all along within my knowledge.

Of this incidental equity suit, thus to be squeezed into the belly of a lawsuit, the certain expense is, in the greater number of instances, greater than the whole value in demand in the lawsuit: greater not only in the majority of the suits that would be instituted under the natural system, but in the majority of the suits that are instituted under the technical system, notwithstanding the exclusion put by it upon so great a majority of suits and suitors.

Of this incidental suit, the costs on one or both sides are borne by the party whose misfortune it is to stand in need of testimony thus circumstanced: and this not only in the first instance, and while as yet it is unknown whether his demand be just or no, but even after the definitive judgment given, and the justice of his demand established by it.

If the patient recovers, in such manner that his testimony is capable of being delivered at the trial, so much the worse for the party who stands in need of it: for in that case the testimony must be collected on this second occasion in the only mode in which it ought to have been collected on any occasion, and the expense of collecting it, including travelling expenses, demurrage, and so forth, is repeated.

All these considerations laid together, it would be matter of satisfaction rather than regret, should it be found, as I am confident it would, that in comparison of the number of instances in which it might be employed, the instances in which this insidious remedy is actually employed are extremely rare.

In Queen Anne’s reign, on the occasion of the act which afterwards passed for the amendment of the law (4 & 5 Ann. ch. 16.) this defect in jury-trial, as then and still constituted—a defect—not in the composition of the tribunal, but in the course of procedure anterior to the day on which the cause is brought before that tribunal—came under the view of parliament, and was attested by the recognition of both houses. Under the guidance of Lord Somers, the Lords proposed a palliative, at once inadequate and dangerous: under the guidance of Mr. Pulteney, the Commons rejected, and prevailed upon the Lords to join in rejecting, this palliative, but for reasons, a material part of which operates in condemnation of the still subsisting practice.

The proposal of the Lords (Journals, xviii. 69) was, that “after issue joined, in any action to be brought in the courts of Westminster, upon oath made that any witnesses cannot be present at the trial, by reason of their being to go beyond the seas, or by reason of sickness, or other infirmity; it shall be lawful by rule of court, for the plaintiff or defendant to exhibit interrogatories to such witnesses to be examined thereunto, upon oath, before one of the judges of the said court, or before commissioners to be appointed under the seal of the court; which depositions may be made use of at the trial, in case the witnesses cannot be there; and said depositions shall be afterwards entered or enrolled in the said court.”

The mischief having its root in the essence of the technical system, no remedy, leaving the basis of that system untouched (refusal to hear parties and witnesses at the outset,) could operate as anything better than a feeble palliative:—but this remedy fell short even of that feeble palliative. A case to which it applied itself, besides the somewhat less exceptionable ground of “sickness or other infirmity,” was the case of a design, on the part of the witness, to go abroad: a case to which it did not extend was that of death. To save himself from the ordeal of cross-examination, a man engaged by corruption ab extra or ab intra to give false testimony, may feign (and what more easy than to feign, and in a manner not to be detected?) “sickness or other infirmity?”—or, what is much more simple, if it be worth his while, he may pretend obligation to go abroad, take a trip from Dover to Calais, and so go abroad on purpose: but to no such purpose will a man either die or feign himself dead. Examination, taken in either of the modes thus proposed by Lord Somers, might therefore, if under condition of not being used but in case of death, have, comparatively speaking, been legalized with little danger: and in this case, the earlier taken, the more effectual the remedy. But the stage of the cause proposed for taking the examination was—not till after issue joined; that is, not till after two, three, or any greater number of months after the commencement of the cause.

Of the body of objections, which operated to the conviction of their lordships (Comm. Journals, xv. 198,) an indisputable part was composed of such as have no force but upon the supposition of the radical impropriety of equity practice: of an essential part of the practice of the court, of which the noble and learned lord their spokesman, the great Lord Somers, was sole judge: the impropriety (I mean) of employing one judge to hear and see witnesses—another, and without the first, to apply their testimony or supposed testimony, to its use:—an impropriety most explicitly confessed by the Lord Chief-Baron Gilbert in the book called Bacon’s Abridgment, title Evidence, vol. ii. p. 625: and which, I have not the least particle of doubt, would with equal frankness be confessed, or rather proclaimed, by Lord Somers’s noble and learned Edition: current; Page: [41] successor, should it occur to your Lordship to put the question to him across the convivial table.

Meantime, supposing the admission, thus proposed to be given to the testimony in this make-shift shape, had been confined to the case on which, in the most perfect shape, testimony from the source in question is not to be had—on this supposition, the proposed amendment (it is evident) would have been a real improvement: I mean, in so far as it consisted in allowing the application to be made in the common-law court, in which the suit was already lodged. The use of it might in that case, and of course would have been, co-extensive, in civil matters at least, with the jurisdiction of the court, in which the evidence was to be employed: and, except the radical inconvenience of committing the decision to a judge, by whom the witness, at the time of his examination, was neither seen nor heard—an inconvenience which, however, cannot always be avoided—the mode of collection would have had, or might have had, in every other particular, the advantages which jury-trial possesses in common with the natural mode:—viz. cross-examination by or on behalf of the adverse party, with the benefit of questions arising out of the answers, and so forth.

But, in this proposed amelioration of the technical system, whatsoever good there was or could have been, what is it but an approximation, and that a remote one, made towards the natural mode?

On all such occasions, what care, what tender care on all sides, to avoid seeing the object—the unexceptionable, the perfect system—all the while standing close under their eyes!

In respect of the occasion and the purpose, correspondent to the English practice of examinations in perpetuam rei memoriam, and de bene esse, is the Scotch practice of examination of witnesses to lie in retentis. But, whereas the jurisdiction of English equity extends over but a part, probably the smaller part, of the field of what, in one of the four or five senses of the word civil, is called civil law, the applicability of the Scotch practice of taking depositions in retentis is co-extensive (I take it for granted) with the jurisdiction of the Court of Session; an authority which, in one way or other, covers the field of civil law in its whole expanse:—not to mention a considerable portion of the field of criminal law.

Scotland not being afflicted by any such distinction as that between law and equity—to the application of this remedy, such as it is, no additional suit in another court is in Scotland necessary: but even there, whether, upon the whole, justice finds most matter of satisfaction or of regret in the facility of resorting to it, is matter of account, the statement of which is beyond my competence.

In some other place, I propose to myself to submit to your Lordship some sort of apperçu of the price paid—paid by the people—paid in the several shapes of delay, expense, and denial of justice, not to speak of misdecision—for the benefit of jury-trial, at its present stage, grafted as at present on the technical system;—and for the services rendered by learned lords and gentlemen—to somebody, doubtless, but to whom I cannot find, except to learned lords and gentlemen—by the upholding of that, together with the other branches:—as likewise what are not, as well as what are, the considerations, by which this popular branch of the technical mode of procedure has never ceased to command their eulogy, any more than the natural mode their silence. But, fearing to diverge too far from the more immediate subject of this letter, I dismiss these topics for the present.

Having thus submitted to your Lordship the only plan, upon which, in my view of the matter, jury-trial in civil cases can in Scotland be rendered, in any considerable degree, subservient, upon the whole, to the ends of justice, I proceed to consider so much of the proposed plan on this subject, as appears on the face of the resolutions.

From the very little that is there stated, what I see distinctly enough is, in what way this supposed remedy against factitious delay, vexation, and expense, if that be among the objects of it, presents a probability of giving increase to that aggregate mass of inconvenience: what I am unable to discover is—by what means it presents a probability of making any defalcation from that mass.

No particulars being given, concerning the mode in which the several questions of fact are designed to be brought before the jury, to speak of this and that and t’other mode in the character of possible ones, and then to say—this will not diminish delay, &c., nor this, nor that—is a sort of exercise that would be little better than fighting shadows.

What I see beyond doubt is—that, to lay the points in question before a jury, abundance of new formalities must be introduced: what I do not see any probability of, is—that, upon the introduction of this new mass of formality, any such portion of the existing mass, as shall be equal to it, will be cleared away. In England, a cause in which a jury is employed, is sooner terminated (it has been said,) than, without a jury, a cause of the same nature would be in Scotland. Be it so:—but it does not follow, that by the application of jury-trial, even in the best mode in which, under the existing system of technical procedure, it could be applied in Scotland to that same cause, the cause would receive its termination there sooner than it Edition: current; Page: [42] does now. In the midst of so much factitious delay, what little abbreviation there is in the English mode, depends upon the system of pleading taken in a mass: and I have no more apprehension of seeing the Scotch nation submit to defile itself with any such abomination, than I have of seeing the port of Leith opened, for the importation of a pack of mad dogs, or for a cargo of cotton impregnated secundum artem with the plague.

In English pleading, what little abbreviation—defalcation (I mean) from factitious delay—what little abbreviation of that sort there is—and that purchased at the expense of intelligibility and cognoscibility, speaking with reference to the body of the people—consists in the use of those general propositions or forms of averment, on the part of the defendant, called general issues:—not guilty;—non-assumpsit, and four or five more; some of which include others, so logically have they been framed. But these propositions have not, any of them, any meaning, but in the way of reference: and their meaning varies ad infinitum, according to the object to which they are referred:—it varies, according to the genus of the action, as characterized by the declaration (the instrument of demand exhibited on the part of the plaintiff,) and the counts, the specific demands and allegations contained in it. Not guilty, for example, the most changeable of all these Proteuses, involves two clusters of propositions, which are altogether different, according as the action it applies to is an action of trover or ejectment. In one of the instances it entitles the defendant to prove, by way of defence, one or more of one list of facts; in the other, one or more of another list of facts, and so on: lists tolerably well settled (viz. among lawyers) for ordinary purposes, by arbitrary, and absurd, and inconsistent decision, but altogether undiscoverable by the light of common sense, and thence incapable of being understood, even by the enlightened part, of the body of the people.

The two general issues here mentioned, corresponding to three formularies, or genera of actions (non-assumpsit corresponding to the action of assumpsit) are mentioned, because under one or other of these actions, but in by far the largest proportion under assumpsit, nine tenths at least of the whole number of causes, commenced in the regular way in the common-law courts, would be found to be comprised.

But it is to the use of these abbreviations, one advantage of which (professionally speaking) is, that they are so frequently found to stand in need of re-dilatations, under the name of papers of particulars (with fees for the same,) that everything that savours of dispatch is confined in English practice: and this jargon, unless, as in British India, planted by the bayonet, being incapable of taking root in any other than English ground, along with it vanishes all the advantage, looked for, or pretended to be looked for, on that score.

But this prop, in the character of a technical support for the jury-box, being thus found eaten up by the dry rot, there remains no other regular common-law support than that, the rottenness of which is conveyed to every ear by the name of special pleading: a mass of corruption, on which a stigma is regularly imprinted—I will not undertake to say exactly how many times—some dozen of times at least—every year, by the hand of the legislature:—as often, I mean, as allowance is given to plead the general issue, and give the act in evidence.

Remain (it may be thought) for supports to the jury-box, the papers of particulars above alluded to, or whatever else, under the name of “relevant facts alleged in the summons or other writ,” &c., or “admissions or denials thereof,” may be proposed to be substituted to them on Scottish ground. But these, so far at least as they extend on English ground—the only ground on which they have ever been placed—are but fragments of a new system of special pleading, already dry-rotted, serving no other purpose so assuredly and so completely, as that of a certificate, bearing witness to the rottenness of the old.

Call them (these conflicting masses of allegation)—call them by any name—English or Scottish—counts and special pleas—or counts on one side, with papers of particulars on either or both sides; “summons” (with the libel in it) on one side, “whole defences,” distinct or indistinct, on the other—the same religious care is observable, on both sides of the Tweed, to prevent their cutting the thread of the suit too soon—to prevent their answering any other purposes, to the prejudice of the ends of judicature:—the same effectual care to shut out that simultaneous, reciprocal, complete, and correct explanation, which nothing but the presence of both parties facing each other under the eye of the judge, can give—to prevent the stemming of that torrent of learned and indefatigable mendacity, which spreads such fertility over the ancient demesnes, attached to inns of court and colleges of justice.

Another support indeed, capable of being provided, is a suit in equity: as where, in the language of English equity, an issue is said to be directed. Upon the hearing of the cause, on the ground of the mass of evidence already delivered in another shape, the comparative untrustworthiness of which is thus recognised, an allegation or set of allegations are fixed on, and, by the help of a lie, dictated by the judge, the truth of it is sent to be inquired after, on the ground of testimony, delivered in that more trustworthy shape, in Edition: current; Page: [43] which alone (except now and then in a case of necessity) it is ever suffered to be presented to the jury-box.

To the adoption of this basis, no objection on the score of probable repugnance seems opposable. Unfortunately, by the same causes, and in the same proportion, as the practicability of it is increased, the utility is diminished. The cause is first to be tried in some one or other of those bad modes, to which, in consideration of their acknowledged badness, jury-trial is proposed to be substituted: under the name and notion of a substitute, jury-trial would, on this plan, be erected as a superstructure, on an edifice, the immoderate bulk of which is the very subject of complaint.

At the end of a course of special pleading, in the original mode, the points in question are somehow or other brought to an issue, without the application of any such instrument as human reason, on the part of the judge. In the new-invented mode, by papers of particulars, the use of that instrument, in that learned hand, is, or at any rate might (I should suppose) be, alike spared. But, in the case where an issue is directed, nothing that is to be done being predetermined by any pre-established forms, whatsoever might by possibility be done, in practice nothing ever is done, without a previous settlement of the tenor, the very words, of the issue, under the eye of a judge. This function—being, like so many other of the most essential functions of judicature, beneath the dignity of so great a personage as the judge so called—is turned over, that is, turned down, to a subordinate sort of judge, called a master:—more delay, more business, and more fees.

This practice of directing issues, were it imported into the port of Leith, the same incompatibility with superior judicial dignity would—though not necessarily, but too naturally—be imported along with it.

Meantime, this operation of directing an issue or issues is not materially different from that which my judge would have to perform, in the case where jury-trial were called for by either party, after a decision pronounced in the character of a definitive decision, by himself. And, unless the instances, in which, under the existing practice, reference is thus made to a jury, are much fewer than they ought to be (which, under the recognised enormity of the addition to the expense, may not improbably be the case,) your Lordship may conceive by anticipation, how few the instances would be, in which, on my plan, the good men and true of Scotland would find themselves saddled with this burden, in comparison of the instances in which they would have to submit to this vexation, on any plan which the learned reformer could approve.

One actual, and therefore possible, though even rarely exemplified, technical substratum for jury-trial (I am sensible,) still remains; and that is the sort of cause, to which, finding no name in use for it, though in every technical court they are heard every day in swarms, I have been obliged to make a name, and call it a motion-cause; a cause carried on upon no other than the favourite sort of evidence already mentioned—affidavit evidence. Petitions to the Chancellor in matters of bankruptcy form the most striking—and probably, in respect of average quantity of value at stake, the most important—exemplification:—petition, a sort of motion, upon paper. In the case of these petition causes, an issue is now and then directed; and, even in other motion-causes, in other courts, reference has been known to be thus made to a jury, though much more rarely.

But, to the working after this model, there are two objections: one on the ground of justice and utility, the other on the ground of practical probability of adoption.

On the ground of justice and utility, the objection is—that, under this mode of trial, the encouragement to perjury is so great, that the facts, capable of being extracted out of the mass of testimony for the purpose of being taken for the subject of the issue, will be liable to be concealed or overwhelmed, by the mass of false facts advanced, under the protection afforded by that mode of trial against the scrutinizing power of counter-interrogation: not to speak of its dilatoriness in comparison of the natural mode, and its furnishing no witnesses but willing ones. It presupposes, therefore, the universal extension of a mode of conflicting testification, alike favourable to the generation of perjury, and unfavourable to the direct ends of justice.

I throw out this objection, rather as matter for consideration, if it were worth while, than as being assured of its not being upon the whole an advantageous succedaneum to the existing system.—But what renders it not worth insisting on, is its failure on the ground of practical probability. A motion-cause, though, in comparison of a cause carried on under the natural system, enormously long, is, in comparison of a cause carried on under any other branch of the technical system, as conspicuously short. It moreover imports a withdrawing of the mendacity-licence, and a substitution of a meagre and comparatively close discourse, purporting at least to be the discourse of the party himself, to the exuberant and inexhaustible effusions of professional and learned eloquence.

In the case of an incidental application, springing out of a cause already introduced and carried on in regular form, such abbreviation may be admitted. But, to apply to the body of every cause any such short method, Edition: current; Page: [44] would be an infringement of the prerogative of the college, a contempt for the wisdom of ages, and a violation of the act of union, if not totidem syllabis, at any rate totidem literis. Indeed, be the occasion what it may, and the arrangement proposed what it may, to be assured of its being a violation of the act of union, there needs no more than the assurance of its being a defalcation from the mass of delay, vexation, and expense, and thereby from the reward allowed by the wisdom of ages to learned industry.

Accordingly, it is merely in the character of a model already existing in the English repository, that I mention this possible support for jury-trial in Scotland—and that no article, in the list of these models, may be omitted—and not with any the smallest expectation, any more than wish, of seeing it recommended to your Lordship’s notice by your Lordship’s learned reformer, or any other learned adviser, for any species of cause;—meaning always principal not incidental causes.

By what means, therefore, this additional formality is likely to be made to operate in the character of an instrument of dispatch, passes my comprehension: but how it may be, and is likely to be, made use of as an engine of delay, to that question answers offer themselves in abundance.

Occasion has already presented itself—not surely of informing, but, however, of humbly reminding your Lordship, that there are such sorts of causes as malâ fide causes. Of the existence of such iniquity, the innocence of the learned reformer, if his language were to be believed, has need to be informed. In the 10th resolution he speaks of dissatisfaction—of a party’s being “dissatisfied with the judgment of any court,” meaning subordinate court:—and proceeds, as if a real dissatisfaction with the judgment of such subordinate court were the only motive, which, in his experience, any man ever found, for making application to a super-ordinate court.

Supposing Scotland to be this sort of Utopia—from the power which he gives to either party, for referring the matter with or without reason to a jury, no very considerable mass of mischief might arise. But in England, as your Lordship may have seen, and will see a little more distinctly a little further on, we have a chamber, in which the vermin that spin out such causes are bred in swarms, as lice and fleas are said to have been bred in Turkish hospitals, and nurseries, founded and stocked for the purpose: and one of his improvements, as your Lordship will see presently, consists in the building of just such another receptacle at Edinburgh, spick and span new.

Admitting, then, the existence of the breed of malâ fide suitors, without which his nursery for them would be without inhabitants—your malâ fide defendant, for example, with another man’s estate or money in his hands—admitting the existence of this best sort of customer, observe, my Lord (but I think your Lordship will not be pleased to observe,) in how many shapes nourishment is provided for him, by these four resolutions about juries.

He forms his calculation; and, if mesne profits, or interest of money, promise to outweigh the eventual addition of expense—or without any such trouble of calculation, if his affairs be desperate—after all anterior sources of delay are exhausted, taking care to wait till the last moment, he flies to resolution the 6th, as to the horns of the altar, and calls for his share in this new-imported stock of English liberty.

If, as per resolution 7th, “that part of the country where the evidence can be most easily obtained” happens fortunately to lie within the range of a circuit, and the commencement of that race against time happens to be, or can be made to be, at a convenient degree of remoteness, the further off the point of time, so much the better for mala fides.

Moreover, the principle of circumgyrating justice, consisting in the allotment of a limited quantity of time for an unlimited quantity of business, another chance he thus gets into the bargain is—that of finding, that when the cause has got to the circuit town, there is no time for trying it as it should be; whereby he gets the benefit of cross and pile:—or there is no time for trying it at all; whereby he gets either the benefit of a further respite to the next circuit, or that of finding his adversary content to give up half his right, rather than see the other half exposed to further perils.

Is it a cause that has taken its commencement in Shetland or the Orkneys?—a cause about a hovel, for example, or a few yards square of potatoe-ground adjoining to it, or the boundary between one such scrap of ground and another?—he lays hold on resolution the 8th, and up goes the cause to Edinburgh, and there breeds another cause, the object of which is to know, whether the Court of Session there shall or shall not think fit, that when the cause is got back again so far in its way to Norway, it shall receive the benefit of its share in the new imported stock of English liberty.

And note, that the power, of thus giving exercise to the faculty of locomotion, may be no less useful in the hands of a malâ fide suitor on the plaintiff’s, than on the defendant’s side.

As for example—in a situation like Lord Selkirk’s, should it happen to a man to be actuated by a disposition, such as nobody can be further than I am from meaning to attribute to that noble lord, it might not be unworthy of your Lordship’s consideration, how Edition: current; Page: [45] much might be done in such hands towards ridding the country of its superfluous population, by actions judiciously introduced into the local subordinate court, and thereupon set to vibrate, as above, in an arc of 200 or 300 miles length, between the subordinate court and the super-ordinate.

Over and over again I have had, or shall have, occasion to confess, that were there any such instrument as a speculum mentis that would suit the purpose, astutia, rather than innocence, is the state in which I should expect to find the learned reformer’s mind: should this conception, on the other hand, be erroneous, it may be of real use to him—in his office or in his profession—to be informed, what wicked people there are, in this wicked world.

The mention made in resolution the 6th and resolution the 9th, of the Lord Ordinary’s court (in the Outer-house) and the court or chamber (meaning, I presume, the correspondent Inner-house,) reminds me on this occasion, as on so many others (of which hereafter) of the enigmatical and mysterious state of that court, which is at the same time two and one. Our malâ fide suitor, when, with the help of one jury or succession of juries, he has exhausted the stock of delay purchasable at the Outer-house, is it proposed that, with the help of another jury or like succession of juries, he shall be admitted to the purchase of a fresh stock in the Inner-house? and this in the two cases—of the causes breaking out of his lordship’s hands and getting into the Inner-house (viz. by reclaiming petition,) whether he will or no, and that of its being gently wafted thither by his diffidence; viz. in that easy sort of vehicle, called a great avisandum, in the construction of which his lordship shows a degree of expertness so far above the comprehension of any English judge? These are questions, to which, from the first, an answer may have been provided, though, upon the face of the resolutions, no trace of any such thing should be to be found.

As to resolution the 9th,—relative to causes brought on in an inferior court, including the country courts at all distances,—whether it be considered in itself, or confronted with resolutions the 6th and 7th, relative to causes brought before the Court of Session in the first instance, it calls, in my view, for questions and observations more than one.

When, under resolution the 8th, proofs having been allowed in a court in the Orkneys, application is made from the Orkneys to Edinburgh, for trial by jury, where is it supposed that the trial will take place?—in the Orkneys, from whence the cause came, and where most probably the residences of witnesses and parties are—or at Edinburgh?

In the case where the cause is brought before the Court of Session at Edinburgh in the first instance—in that case, by resolution the 7th, the idea occurs (I perceive) to the learned reformer, that there may be one part of the country in which “evidence may be more easily obtained” than in another; and power is accordingly given to the Court of Session, to place the scene of action in that venue. But, to the case where the cause is in the first instance brought before the country court in the Orkneys, this power is not extended. Had resolutions the 7th and 8th changed places, this doubt would have been removed: but, whatsoever may have been the cause, the monopoly of this benefit seems to have been intended for the suits commenced at Edinburgh: suitors, perverse enough to wish to have justice administered to them near to their own homes, not being thought worthy of it.

True it is, that, for aught I know, the intention may have been, that when a cause, which from the Orkneys has ascended to Edinburgh, has re-descended to the Orkneys, receives the benefit of jury-trial, it shall not be at any circuit court, but at the stationary court from which it came: I mention this, therefore, not as matter of opinion on my part, but as matter of doubt.

Be this as it may, if I comprehend the matter right, my Lord, suitors who wish to receive justice, without being sent 200 or 300 miles for it, are a bad set of people: their wish is to cheat superior merit, the exclusive growth of the metropolis, out of the reward so richly due to it:—the practice of bringing causes before these paltry little courts is accordingly a bad practice, and ought to be discouraged. Else why is it that, when a cause is brought in the first instance before one of those petty courts, neither party can have the benefit of jury-trial, without trying the cause first at Edinburgh, to know whether it shall be tried afterwards in the jury mode, in the Edinburgh court, there or elsewhere?—to be tried, viz. in the court it came from, or in the circuit court, or in God knows—and perhaps the learned reformer knows—what other court? while, if the plaintiff has but the sense to commence the cause in the proper place, in the only place in Scotland where any sort of cause ought to be commenced, to wit, at Edinburgh, where persons of superior learning and merit may extract their due out of it, he, as well as the defendant, may put themselves in possession of this new and matchless benefit, each of them at his own will and pleasure, without being beholden for it to the Court of Session, or anybody else, and without being obliged to join in the trial of a preliminary and additional cause, as above.

In England, centuries ago, these little country reptiles were either swallowed up, or Edition: current; Page: [46] sucked dry—nothing left but a husk—by the great serpents in Westminster-Hall:—the wisdom which gave success to the design was, if I mistake it not, a prototype, and perhaps a model, to this the learned reformer’s grand scheme of reformation.

All this while, lest injustice be done to jury-trial, and a matchless remedy put upon the list of pure poisons, let it not, my Lord, be forgotten, that in jury-trial all this crabbedness is not innate, but comes of its being grafted upon a cankered stock, instead of a sound one: upon the technical—and, in particular, upon the Scotch branch of the technical—instead of the natural system of procedure.

And moreover, in respect to removal in general—removal for whatever purpose, and under whatever pretence—if it be so well adapted as at present it appears to be, to the convenience of the malâ fide suitor, it would not be so in the smallest degree, under that modification of the natural system, which I propose to submit to your Lordship, in the Facienda. If it is so now, it is only because (as I proceed to state in my next letter) learned lords and gentlemen find it convenient to have it so: finding, in the malâ fide suitor, for whatsoever stock of delay, vexation, and expense they can contrive to manufacture—in the malâ fide suitor (the latent though not dormant partner in their firm,) besides a partner, their best sort of instrument, and in the mode and conditions of removal, one of their best channels of conveyance.

On this occasion I know not whether there be any adequate use in hinting, that, of the two modifications, of which misdecision on the part of a jury is alike susceptible—viz. misdecision which calls for reversal, and misdecision which, respecting quantity only, calls only for modification—viz. angmentation or diminution—(say, misdecision pro toto, and misdecision pro tanto)—the eye of the learned reformer seems to have pitched but upon one. A verdict requiring correction—for example, on the score of excessive damages—and given without any direction from the judge, or against his direction—was it considered, and meant to be included under the description of a verdict given contrary “to evidence?”

But the occurrences—specified as above, in the character of fit grounds for new trial—are they all that required to be thus specified?

1. Vicious composition of the jury,—by the admission of a juror who had gained admission by fraud after his disqualification had been pronounced—

2. Mistake or misconduct on the part of the jury,—in giving a verdict contrary to evidence, or contrary to the direction of the judge respecting matter of law—or in giving a general verdict, the judge requiring a special verdict, or a verdict subject to the opinion of the court—or in deciding by lot

3. Notorious partiality of a juror,—evidenced, for example, by previous declarations on his part, of a determination to cause the verdict to be given in favour of one of the parties—

4. Mistake or misconduct on the part of the judge,—in excluding evidence that ought to have been admitted—or in admitting evidence that ought to have been excluded—or in giving an erroneous direction respecting the matter of law

5. On the part of the evidence, a deficiency on one side—whether produced by fraud on the opposite side—by pure accident—by misconception or neglect on the first side; viz. on the part of the professional agents of the party on that same side—

6. Absence of any other of the dramatis personæ whose presence was regarded as necessary—as, for example, of an advocate on one side—the absence produced by fraud on the opposite side—

All these have, in English practice, been sustained as grounds for the allowance of a new trial.

These, in the course of about a century and a half (the time during which the practice of granting new trials has been in use,) have been brought to light, by the fortuitous concourse of the parent atoms of litigation: more, for aught I know, there may be, though I should not expect to find many, presenting an equally good title, but as yet lying unextruded in the womb of time. Were it to present any prospect of being of use, I know of one hand at least, by which, weak as it is, the labour of exploration would not be grudged. On this as on so many other occasions, analogy, if properly commissioned, would, in the course of a few days or hours, produce in useful abundance cases calling for regulation, and regulations adapted to those cases.

But it is among the maxims of learned policy, that all such anticipations are an injury to the profession, and as such ought to be discountenanced:—that the only fit shape for law to appear in, is that of ex post facto law:—that providence is rashness:—that punishment, especially when without delinquency, is better than prevention:—that legislation is usurpation upon jurisprudence:—and that to shut the stable door, before one steed at least has been stolen, is defrauding thieves and lawyers of their due.

From this cause it is, among others, that cases—which to so vast an extent might, by the light of analogy, be at once brought out and provided for—and, by the hand of the legislator, in the best mode—are left to be dragged out, one by one, time after time, each time at the expense of many a pang by the afflicted suitor, and provided for, in the course Edition: current; Page: [47] of ages, by the hand of the judge—proceeding in his ever imperfect and insufficient mode.

But to return to the grounds for new trial. Of the above, upon which English practice has already put its seal, few, if any, would, I am inclined to think, be regarded by a Scotch lawyer as insufficient.

Yet, out of the whole number, two and no more—contrariety to evidence, and misdecision of the judge—are specified by your Lordship’s learned adviser in the resolutions.—I have the honour to be, with all respect, my Lord, your Lordship’s most obedient servant,

Jeremy Bentham.
Lord Grenville
Lord Grenville
LETTER V.

ON THE BILL CALLED LORD ELDON’S.

My Lord,

I resume the pen. Times have changed; but the address of these letters shall not change. Your Lordship’s was the mark first stampt upon the measure. There I hope still to see it; by me, at any rate, it shall not—by your Lordship, I hope, it will not—be obliterated. Be the fundator perficiens who he may, to the character of fundator incipiens your Lordship’s title is beyond dispute. Be the profit of the piece to the public what it may, your Lordship may claim to the last an author’s share.

Your Lordship’s edition of it was the subject of the four preceding letters. When the last of them was concluded, the plan of observation I had set out upon wanted much of having been completed. My intention, however, was to have gone through with it, and that intention wanted at length but little of having been executed. But when the text was fully understood to have been laid upon the shelf, the comment could do no less than follow it. Should the text ever find its way again to the carpet, it will then be time enough for the comment to follow it in its course.

Not that the labour bestowed upon the dormant plan is altogether lost. It can be no secret to your Lordship, that, to my humble view of the matter, the tower of judicature was already high enough, and, to all but the favoured few, to whom a golden ticket opens the way, the summit of it sufficiently inaccessible, without any such additional stage as your Lordship’s learned architect had planned for it. My intended globe of compression shares, of course, the fate of the fortress against which it was designed to serve. But if, of the stock of projectiles originally destined for that service, it should happen to a splinter or two to glance that way, without prejudice to the new service to which they are now destined, so much the better for economy, and not the worse, I hope, for justice. To us in England, intermediate chambers of review are no novelty. Viewing them at once in the character of shops where injustice, in the shape of delay, is sold to all who will pay the price, and in the character of Mexican temples, polluted by human sacrifices, this feeble hand would regard itself as employed, not like that of Erostratus, but like that of Daniel, if, in addition to the model of the projected Scotch edifice of that name, it were able to consign those antique receptacles of corruption to a consuming fire.

Though always a respectful observer, your Lordship never has found, never can find, in me, a flattering one. Had I a vote, and at the same time no other option than between the plan prepared by your Lordship’s learned adviser, and the new one now placed upon the carpet by another learned scribe, howsoever it fared with my wishes, my judgment would find itself obliged to decide—that, in that perpetual competition for public favour, on which, under the best, and, at the same time, the most improvable of all governments, all hope of ulterior improvement depends, the latest bidder has, in the present instance, shown himself the best. Do not let the lot be knocked down to him, my Lord. That, if not on the present, on some future contingent occasion, brought on by some new turn of the wheel of fortune, your Lordship, after being enabled, may be prevailed upon to bid above him, is amongst the objects aimed at by this renewed address.

In the former instance, after a leading step or two, the direction pursued appeared to my weak judgment, such as it was, a wrong one. In regard to this new plan, what I have now to notice resolves itself into this, viz. that after a few uncertain and tottering steps, though the direction be in the main a right one, yet so small is the advance, yards or inches, when furlongs were necessary, that when the moving power is exhausted, the measure will find itself, by a vast interval, short of the proper mark.

The case and comfort it gave me, not merely to find myself at liberty, but, by the nature of the case, compelled to ascribe the details and technical parts of the plan to an inferior, and that an unknown hand, was, on the former occasion, represented in my first letter.

Happily, on the present occasion, the same good fortune still attends me. To outward appearance, and in common parlance, the bill which lies before me presents the image and superscription of the noble and learned lord whose seat (to use a flower culled from his own bouquet, of which presently) is “at the head of the” law—the second person in dignity after royal blood—the Lord High Chancellor of Great Britain. As to the actual penmanship, I ascribe it without hesitation to some other, and consequently inferior, hand. The proof is no less simple than Edition: current; Page: [48] conclusive. Legislation is, in every public station (unless that of the Chancellor of the Exchequer be an exception,) matter, either of mere supererogation, and not, in any degree or point of view, of obligation, or, at the utmost, of what, according to the distinction so familiar to moralists and jurists, is denominated imperfect obligation. Judicature, i. e. on the part of a judge (to borrow a term from the same authoritative vocabulary,) “dispatch of business,” and with the utmost degree of celerity which, consistently with rectitude, the powers of decision on the part of the judge admit of, matter of perfect obligation. How far in the highest source of that purest kind of law, which, in the only country that has any conception of it, is distinguished by the name of equity, the rate of dispatch is from keeping pace with the demand, is a point that could no otherwise be ascertained in proper mode and form, than from the register books, and such other documents as, in either house of parliament, any member who should think it worth knowing whether equity gets on or stands still, might command at any time. But that, in a general view, it is such as to present, to the eye of superficial observation at least, symptoms of debility in the extreme—and this whether the standard of comparison be taken from anterior, or cotemporary and collateral examples—is a fact, which, since the time of the chancellorship of Lord Loughborough, has, with little interruption, been rendered but too notorious by the daily lists of causes, as well as by the groans of suitors, and the unvaried cloud that has been seen sitting upon the brows of advocates, whom famine has driven, along with the causes (corpora cum causis,) out of the two great banqueting halls in Palace Yard and Lincoln’s Inn, into the great audience hall at the rolls. Of this inadequacy of the supply to the demand for judicature, what the efficient causes may be, is a subject of too much delicacy, not to speak of danger, for so weak a hand as mine to attempt to dive into. Whether it be, that in mere spite, the powers which should have been the powers of harmony, have metamorphosed themselves into powers of discord, and notwithstanding, and even by virtue of, that very discord, entered into a conspiracy to disturb the quiet of the bench, and in the rage of their hunger and thirst after equity, to keep squalling and knocking for it at a door, which they deserve not to see open to them:—whether . . . . But it would be no less superfluous than perilous to attempt prying into causes, when the effects which, for the purpose of the argument, are so indisputably sufficient, are themselves beyond dispute.

My Lord, what, like an innocent and suspected queen, I have been thus long groping for blindfold, in a labyrinth composed of red-hot ploughshares—what I have thus been groping for, and am at length arrived at, is—this argument. The time of the noble and learned person, whose seat is sometimes upon a bench, sometimes upon a woolsack, is insufficient for the discharge of the duties of perfect obligation by which he is pressed:—à fortiori, for imperfect ones. Clearing the paper of the causes is, so far as time and powers serve, matter of perfect obligation; drawing this bill, or any other bill, is matter either of no obligation at all, or, at the utmost, but of an imperfect one. In the noble and learned bosom here in question, conscience is at once too delicate and too enlightened, to sacrifice perfect obligations to imperfect ones. Therefore, it was not by the hand of the noble and learned lord that this bill was drawn. Therefore, again, it was drawn by some other, and consequently by some inferior hand: which hand, saving its inferiority, is unknown, which is all that I do know, or, so long as it is in my power not to know, will know, concerning it.

Hence, my Lord, my comfort: and now, with a tranquillized mind, I enter upon my new task.

Your Lordship will be apt to smile—other readers, if I happen to have any, will stand aghast—at seeing a letter divided into chapters, and those chapters perhaps into sections. But having no share in that profit which has unintelligibility for its source, nor interest consequently in manufacturing a chaos, without “distinguishable feature, shape, or limb,” such as the laws of this one country (this proposed law among the rest) are doomed to be,—more particularly in their first concoction, when (for the purpose of reference, confrontation of parts, methodization and discussion,) division and distinction are most necessary—having no such profit, I say, nor consequently any such sinister interest, even the law of custom—to so many noble and learned persons, and on such good and valuable considerations, the dearest and most sacred of all laws—has not been able to prevail upon me to forego the use of those instruments of distinct conception, as well as unambiguous and uncircumlocutory reference, which have the rules of division and numeration for their source.

CHAPTER I.: ANALYSIS OF THE BILL CALLED LORD ELDON’S BILL.

§ 1.: Distinguishable Parts.

For the purpose of such observations as I may have to submit, I shall take the liberty of considering the matter of the bill as divided into four parts:—

Part the first, taking for its subject the judicial establishment of the Court of Session, and the course of procedure in that court, and for its declared object, “dispatch of business,” occupies itself in making regulations Edition: current; Page: [49] outright, by the sole wisdom, as well as by the authority of parliament.

Of the nineteen sections that may be found on numbering the paragraphs in the bill (for, as already intimated, it would have been unparliamentary to have put them into a state already fitted for numerical reference, i. e. into a state in which they would have been capable of being referred to, otherwise than by a constantly tedious and oftentimes ambiguous circumlocutory designation,) this part embraces, or at least touches upon sections ten, viz. 1, 2, 3, 7, 8, 9, 10, 11, 12, 13.

Part the second, taking in hand the same subjects, and (it may be presumed) looking to the same object, not to speak of other objects, occupies itself in giving to the Court of Session powers of subordinate legislation, to be exercised on the subjects mentioned above.—Sections touched upon four, viz. 5, 6, 9, and 11.

Part the third occupies itself in giving to a set of special commissioners authority (but without power) to make inquiries relative to the course of procedure in that court and the sheriff’s court, as carried on at present, and thereupon to propose any such alterations as, in their judgment, may seem proper to be made by parliament; as also to another special commission, the operations of which are confined to the particular purpose of reporting concerning the utility and proper extent of jury trial, and the most advantageous mode of engrafting it upon whatsoever system of procedure may have been proposed by the set of commissioners first mentioned.—Sections, two, viz. 18 and 19.

Part the fourth takes for its subject the appeal presented from the Court of Session to the House of Lords; and for its object (to judge by inference, in default of express declaration,)—for its principal, at least, if not sole object—the reducing the “burthen” imposed by those applications “on the time of the House of Lords.” Such is, at any rate, the principal declared object of the plan contained in the memorial presented to the House of Lords by eleven out of the fifteen judges of the Court of Session, headed by the Lord President: which memorial was followed by a bill, and that by a second, having for its reputed author the same right honourable judge: which bills, taken together, form, upon the face of them, the basis of this, which since that time we have seen issuing from a still higher source.—Sections, four, viz. 16, 14, 15, and 13.

I proceed to sketch out the contents, or at any rate the topics of the bill, considered as divided into these four parts:*

§ 2.: Part I. Parliamentary Regulations touching the Judicial Establishment.

1.—Section 1. The Court of Session to be cast into two Divisions: in Division the First, the Lord President and seven other judges; in Division the Second, the Lord Justice-Clerk and six other judges.

2.—Section 2. The king to “appoint” which of the judges shall sit in the several Divisions. (The appointment first made, quere, is it to be susceptible of variation?)

3.—Section 2. The Lord President of the whole court to preside in Division the First; the Lord Justice-Clerk in Division the Second: in the absence of such permanent president, an occasional president to be elected on each occasion by “the judges then present;” (quere if by “to sit at the head of such Divisions respectively,” be meant, to exercise the functions of president?) [N. B. In no one of the three four-seated courts in Westminster Hall, does the judge who presides sit at the head of the line of judges.]

4.—Section 3. Each Division to contain the same number of “Judges of the Court of Justiciary,” reckoning for one the Lord Justice-Clerk—(who always is one.)

5.—Section 7, undertaking to give a quorum number to each Division (the same to each,) leaves a blank for it. (In the case of the entire court, as often as a quorum number is mentioned, the blank is filled up.)

6.—Section 8. Except in cases herein excepted (see Part II.) each Division is to have “the like duties, powers, and functions . . . authorities and privileges” as are now exercised or enjoyed by the whole court.

7.—Section 8. This section takes for its object, the securing a decision in the case of difference of opinion among the judges, with equal numbers on each side. But of this part of the bill, I find myself unable to give any tolerably correct account, in any other words than its own.

8.—Section 9. Liberty to the plaintiff to Edition: current; Page: [50] choose under which Division he will commence his suit.

9.—Section 9. Cases of remitter excepted (see Part II.) no removal of a suit from Division to Division. (Words in abundance, clouds proportionable.)

10.—Section 10. Powers for enabling each Division to obtain assistance from the opinions of the other.

11.—Section 11. “Forms of proceeding and process,” to be the same in the two Divisions: no alteration but by the whole court.

12.—Section 12. Causes depending at the commencement of this act, how to be distributed between the two Divisions.

13.—Section 17. On the appointment of a new judge, “the forms of admissions are to be gone through” in that division only to which he “is appointed.” “If the admission be objected to, the objections are to be judged of by the whole court.”

§ 3.: Part II. Powers to Session for subordinate Legislation.*

14.—Section 5. Powers to the whole court, for determining in what numbers in each Division the judges shall officiate in the Outer-House and Bill-Chamber, separately or together.

15.—Section 5. So, “in what manner;” whether in the present, or in any different one.

16.—Section 5. So, whether “constantly or usually” some shall sit in the Outer-House or Bill-Chamber; others in the Inner-House.

17.—Section 5. So, in what “rotation;” for example, “of years, sessions, months or weeks;” regard being had to “dispatch of business and avoiding of expense.

18.—Section 4. So, to regulate the days of sitting in the two Divisions during the time of session: (in which phrase seems to be implied, that in vacation times, being four months and two months, total six months, in the year, neither of the Divisions are to sit; viz. in the Inner-House: with the exception, probably of Ordinaries, in the Outer-House and Bill-Chamber, as at present.)

19.—Section 9. So, to regulate concerning the remittal of causes from Division to Division, in consideration of a “connexion” between cause and cause.

20.—Section 11. So, to regulate concerning the “forms of proceeding and process” in each Division: “and particularly concerning the mode of conducting the pleadings by writing or viva voce,” and that as well in the Inner-House, as before the Ordinaries.

§ 4.: Contents of Part III. Authority, inquisitorial and initiative.

1.—Section 18. Power to the king, either by letters patent, or by instrument under his sign-manual, to appoint commissioners (number not limited) to sit at such times and places as they think fit, for the exercise of the functions hereinafter mentioned; with power to choose a præses (i. e. one of their number (it is supposed) for præses) as also “a clerk” (one clerk).

2.—Section 18. Authority (without any coercive power) to these commissioners, “to make full inquiries” (without power for compelling answers to any such inquiries) “into the present forms of the court in conducting process, extracting decrees, registration of the same, and execution thereon, or upon letters of diligence” (Anglicé process) “passing the signet, or any other matters touching the process or proceeding of the said court.”—(Process Scoticé is synonymous to proceeding Anglicé.)

3.—Section 18. Authority “to set down in writing,—“amendments,” such as “shall appear to them—most reasonable and best calculated for the due administration of justice in that court.”

N. B. So far as concerns the Court of Session, every point in which the personal interest of the judges is more particularly concerned, and in particular that “repose” to which their determination to sacrifice the interests of justice has been solemnly declared (Memorial, Art. 50,) seems left to the uncontrouled operation of that sinister interest:—the commissioners not authorised so much as to propose anything in relation to it.

Forms of Pleading—(a subject sufficient of itself to absorb the whole of a man’s time for months or years)—another point which the commissioners are not to meddle with: reserved for the judges, whose determination not to give up a particle of their time has been declared as above.

4.—Section 18. Authority “to inquire into the fees, perquisites, and emoluments, claimed by or belonging to the clerks and officers of the court, and other members of the College Edition: current; Page: [51] of Justice,” (including those called in England attorneys and solicitors?) “or” (and) “persons connected with the said court, the faculty of advocates excepted.”

5.—Section 11. Authority to report “how far the same,” (viz. the fees, &c.) “are now reasonable or” (and) “ought to be allowed or increased.” (Under the words “how far,” would diminution be understood to be comprised, as well as increase and total disallowance?)

6.—Section 18. In case of the abolition of any “emoluments” by “regulations introduced by this act,” or “by the adoption of any regulations” proposed as above, (nothing said of abolition by regulation, if any, made by the Court of Session) authority to report what satisfaction it may be reasonable to make to the persons deprived of such emoluments. (Of satisfaction for loss accruing to persons entitled to nominate to the offices, the emoluments of which may then come to be abolished, nothing is said.)

7.—Section 18. Authority to propose regulations “relative to processes, or causes to be brought into the Court of Session by advocation(Anglicé by certiorari) “or suspension” (Anglicé by writ of error or appeal)or in the first instance, or before the Circuit Court;” i. e. (as explained in the preambulatory part of this section) “the Circuit Court of Justiciary by appeal.” (Procedure in causes brought into the Court of Session in the first instance, having (as per No. 3) been already included in the authority given to these commissioners, what is it that can have been intended by the words, first instance, in this clause, which appears not to have any other object than the option to be made as between one mode of appeal and another?)

8.—Section 18. Authority “to inquire into the fees, perquisites, or emoluments, claimed by the clerks and other officers” (judges, it seems, excepted) in the sheriff’s courts in Scotland,* “and to take and set down in writing what occurs to them relative thereto.”

[1. Of the great variety of inferior judicatories or sheriff-deputes’ courts (not to mention their substitutes’ courts, which in fact are distinct judicatories with appeal to the respective principals,) justice of peace courts, borough bailies’ courts, dean of guilds’ courts, barons’ courts, commissaries’ courts, of different ranks one above another, admiralty courts ditto, all liable to have their proceedings reviewed by the Court of Session, how happens it that the inquiry is confined to the “sheriff-courts,” meaning the sheriff-depute’s court?]

2. Under this term, “sheriff-courts,” (not very usual in Scotch law) would the judicatories filled by the substitutes be understood to be included, as well as those filled by the principals?

3. In the instance of the judicatories, included, as above, in the authority for making inquiry, why confine the inquiry to the subject of the “emoluments,” excluding the system of procedure, between which and the system of procedure pursued in the Court of Session—(the judicatory by which the proceedings in those subordinate courts are reviewed)—the connexion is necessarily so intimate?

4. “Taking and setting down in writing what occurs—relating thereto.” By this expression was it meant to denote, or to include, authority for proposing “alterations or amendments,” as in the case of the Court of Session? If so, what can have been the reason for thus varying the phrase?

9.—Section 18. Like authority respecting “the state of the records in these courts:” viz. the “sheriff courts,” and those only, as aforesaid. (Like queries to this clause, as to the one last mentioned.)

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10.—Section 18. Injunction to these commissioners, to report “the whole of their proceedings to his Majesty, with all convenient speed:” the report “to be laid before both Houses of Parliament, by one of his Majesty’s principal Secretaries of State.”

11.—Section 19. Power to “his Majesty, in and by letters-patent under the great seal of the United Kingdom” (i. e. to the noble and learned mover of the bill,) “to nominate any number of persons not exceeding” (with a blank for the number,) “and such persons being either” (with another blank for the qualifications.*)

12.—Section 19. Authority “to make inquiry, by all such lawful ways and means as shall seem to them expedient in that behalf, how far it might be of evident utility to introduce into the proceedings of the Court of Session, or any other court in Scotland, trial by jury” (no authority having been given, either to this or the other set of commissioners, for making any inquiry into the system of procedure pursued in any such other court,) “in any and what cases, in matters of a civil nature, and in what manner and form the same could be most usefully established.”

13.—Section 19. Injunction to report, as in the case of the sign-manual commissioners.

[On the occasion of the shadow of power, given, as above, to the two sets of commissioners, for the collection of the requisite stock of information, quere, what can have been the reason of the extraordinary difference observable in the delineation of the shadow, in the two cases? And quere, what could have been intended, or supposed to have been done, by the line of words here printed in italics?]

§ 5.: Part IV. Regulations touching Appeals; viz. from Session to Lords.

1.—Section 16. Power to the House of Lords, “in its sound discretion,”—to decree payment of interest, simple or compound, by any of the parties appellant. (The House, has it then two sorts of discretion, a sound and an unsound sort—the sound not to be brought into action but on great occasions?—or is it that, there being but one sort, the soundness of it is intended to be secured by its being thus enacted to be sound!)

2.—Section 14. “When any appeal is lodged in the House of Lords”. . . . . power to “the presiding judge, with the judges of the Division to which the cause belongs,” or any three of them, to regulate all matters relative to interim possession, or execution, and payment of costs and expenses already incurred, according to their sound discretion, having a just regard to the interests of the parties, as they may be affected by the affirmance or reversal of the decree appealed from.”

3.—Section 14. “When any appeal is lodged in the House of Lords, a copy of the petition of appeal shall be laid by the appellant or appellants, or by the respondent or respondents, before the presiding judge,” &c. as above.—(The word shall, is it to be considered as imperative, or as simply permissive? If imperative, on whom? Or was it not meant that it should be, in the first instance, imperative upon somebody, and then eventually permissive to somebody else? And if so, at what time was it understood that the permission should commence?) &c. &c. &c.

4.—Section 15. Of interim regulations, so made as above, the execution is not to be stopped by appeal.

5.—Section 15. “Respecting all matters . . . . done,” or “having taken place . . . . in consequence of such regulations so made as to interim-possession, execution, and payment of expenses or costs,” power to the House of Lords, on the appeal from the decree, “to make such order . . . . . as the justice of the case shall appear to the said House of Lords to require.”

6.—Section 13. “From interlocutory judgments . . . . no appeal, . . . . except with the leave of the Division of the judges pronouncing such interlocutory judgments.”

7.—Section 13. “When a final judgment or decree is appealed from,” power “to either party to appeal . . . . from all or any of the interlocutors . . . . pronounced in the cause, so that the whole, as far as necessary, may be brought under the review of the House of Lords.”

8.—Section 13. No appeal to “be allowed from interlocutors or decrees of Lords Ordinary, which have not been reviewed by the judges sitting in the Division to which such Lords Ordinary belong.”

§ 6.: Phraseology, a Topic dismissed.

On the subject of Part the first, as above marked out, I shall not, on the present occasion at least, attempt giving your Lordship any further trouble.

So far as concerns this first part of the bill, such remarks as I should have to submit, would turn chiefly upon the penmanship. Doubts, for example, concerning the meaning of the learned scribe; and, supposing the meaning rightly guessed at, doubts whether the words would answer the purpose of giving effect to it.

In legislation, though there cannot be anything but what has its importance, yet, as between style and matter, so far as they are capable of being separated, matter will, in the order of importance, claim an undisputed preference. Edition: current; Page: [53] Thence it is that, for the present at least, Part the first is put aside.

The apprehension I have been all along under of falling into the sin of misrepresentation, and my anxiety under that apprehension, must already have betrayed itself. Of misrepresentation, there are two modes: one is, when, the language of the original being clear, the representation given of it is unfaithful, ambiguous, or obscure: the other is, when, the language of the original being obscure or ambiguous, the representation given of it is clear and decisive.

In practice, this last mode of misrepresentation is the most mischievous. Be the original what it may, if the abridgment appear unintelligible or doubtful, a man betakes himself to the original, of course: but if, the original being ambiguous, the abridgment be clear, the clearer it is, the more perfectly he is satisfied with it, and the less he suspects the danger he is exposing himself to, by trusting to the abridgment, and upon the faith of it, ascribing to the original a sense, which, when the time comes, may prove, to his dismay, to be different from the sense put upon it by the judge.

How happens it—(over and over again have I asked myself this question, without ever having been able to find an answer)—how happens it, that throughout the texture of this bill, the language is continually varying—varying, as between clause and clause—between clauses, in which, so far as can be concluded against the presumption afforded by the variation in the language, the import meant to be conveyed was exactly the same? To what cause shall this perpetual departure—departure of a man from himself—be ascribed?—to thought, or to want of thought? Is it that certainty was sacrificed, perpetually and deliberately sacrificed, to an imagined beauty—beauty supposed to be produced in an act of parliament by variety of style? Or is it that this bill, a bill on which the state and fate of justice in one of the three kingdoms depends—this truly momentous bill, having, in the manner of a speech spoken, been dictated to an amanuensis, was never looked at afterwards?

Edition: current; Page: [54] Edition: current; Page: [d]
TABLE VII.
AN ACCOUNT of the Number of APPEALS Presented to the House of Lords(a); also, of the Number of Appeals Set down for Hearing, and Heard, and of the Number of Days occupied in Hearing the same; also, of the Number of Appeals Affirmed, Reversed, Remitted, Withdrawn, and Dismissed, for want of Prosecution, from the Year 1794 to the Year 1800, both inclusive; distinguishing each Session, and how many of the said Appeals were brought from the Courts of England, and how many from the Court of Session in Scotland respectively.—Thus far is reprinted from an Account Printed by Order of the House of Lords; date of the Order, 11th March 1807: To which is here added, from the 27th Report of the House of Commons’ Committee on Finance, p. 272, an Account of the Appeals called Writs of Error, presented to the House of Lords in the years 1795, 1796, and 1797; the several Columns respectively headed by the Titles, Writs of Error—Together—and Totals Corrected, being here interpolated for the purpose of expressing the Additions made as above.
Sessions. PRESENTED FROM Set down for Hearing. Heard. Days in Hearing,(c) Affirmed. Reversed. Remitted. Withdrawn,(d) Dismissed(e) not being Prosecuted. Arrear of each year,(f) Gained upon the Arrear,(g) Totals remaining upon the Arrear,(h) Sessions.
Scotland. England.
Appeals called Appeals. Appeals called Writs of Error,(b) Together. Total. Totals Corrected. England. Scotland. Total. England. Scotland. Total. England. Scotland. Total. England. Scotland. Total. England. Scotland. Total. England. Scotland. Total. England. Scotland. Total. England. Scotland. Total.
(a) [English and Scotch Delays.]—For further particulars, though still very birefly indicated, see Letter I. Devices of the Technical System.
Of these Delays, some adhere to the Technical System of Judicature, in whatsoever country established; others are either in toto, or in degree, peculiar—some to the English, some to the Scottish Branch; to the English, Nos. 6, 7, 12, 13, 14, 15, 17, 18, 19; to the Scottish, Nos. 22, 23, 24, 25, 26.
(c) [Days.] Under the standing order, 8th June 1749, the regular Appeal days are—Mondays, Wednesdays, and Fridays: on other days, the time occupied in the judicial business scarce ever exceeds two hours, commonly is considerably less.
The Appeal business seldom lasts longer than till five o’clock; the general business usually commences at that hour.
(d) [Withdrawn.] When, before the day appointed for the delivery of the printed Cases (required by standing order, 24th January 1724,) viz. four days before the day appointed for hearing, the Appellant applies by petition for liberty to withdraw his Appeal, such liberty is granted of course. In this case, however, he is obliged to reimburse to the respondent a portion of his costs, but saves the ulterior costs, which, to a considerable amount, he would have to pay, if, for want of prosecution, he were to suffer the Appeal to be dismissed.
(e) [Dismissed, not being prosecuted.] An Appeal is, for want of being prosecuted, dismissed of course, in either of two cases:—1. If, on the day appointed as above, the Appellant omits to distribute his printed cases; 2. If, having made such distribution, when the Appeal comes to be called on, on the regular day (viz. when after having been set down for hearing it stands first upon the list, all those that had been presented before it having been disposed of,) no person appears in support of it.
N. B.—In Mr. Urquhart’s book, intituled, The Solicitor’s Practice in the House of Lords, 1773, dismission is not stated as taking place on any other occasion than that of a compromise. [Pp. 47, 48, 49.]
(f) [Arrears of each Year.] This column, together with the two next, viz. Gained upon the Arrear, and Total Amounts of Arrear (viz. in each year,) deduced as they are from those comprised in the official accounts, are here added for the purpose of applying the information the more closely to the object in view.
(g) [Gained upon the Arrear.] The comparative degree of dispatch given in these two following years, viz. 1797 and 1798, under the management of Lord Loughborough, compared with the arrear, which commencing in the next year (1799,) continued thenceforward to increase, is an object that ought naturally to attract notice.
(h) [Totals remaining upon the Arrear.] These results are deduced by subtracting from the numbers presented in each year, the numbers disposed of, viz. in one or other of the three several ways, viz. by the Appeals being either heard, withdrawn, or dismissed. Had every year produced an arrear, in that case, in each year, the total amount of the arrear accumulated in the course of the whole period down to that year inclusively, would throughout have been exhibited, by the simple operation of adding to that year the arrears of the several preceding years. But as the table exhibits two years (1797 and 1798,) which instead of making an addition to the total amounts of arrear in those years respectively, subtracted, each of them, a number from the total amount, hence came the necessity of interposing between that column and the column expressive of the arrear of each of the years that afforded an arrear, the column expressive of the numbers gained upon the arrear, viz. in the only two instances in which any such extra despatch took place.
A natural question here is, whether the number 154, the number expressive of the total amount of the arrear accumulated in the thirteen years, and part of a fourteenth comprised in these official accounts, delivered in as they were on the 11th of March 1807, comprised the whole of the number remaining in arrear, and waiting to be disposed of at that time? The affirmative seems not improbable; but in regard to the amount of the arrear, neither that conclusion nor any other can be deduced to a certainty from any information afforded by these accounts. That in 1793, being the year immediately preceding the commencement of the earliest of the two periods comprised in these accounts, an arrear existed, is manifest on the face of them. For at the end of 1796, being the third year comprised in them, the total amount of the arrear accumulated in this period was no more than 15: and in the two next years, 1797 and 1798 taken together, we see 24 Appeals disposed of, over and above the number presented in those same years: deducting, then, 15, as being the arrear formed during this period, there remains 9, a number which must already have been remaining in arrear at the commencement of this same period. But in addition to these 9, there may have been, at the commencement of this period, an arrear to any amount—an arrear which if existing, will be to be added to 154, the number exhibited by the last column of numbers in this Table.
(b) [Writs of Error.] In English and Irish Common-Law causes, Appeals are called Writs of Error: in English and Irish Equity-Court causes, as well as in English Spiritual-Court, and Admiralty-Court causes, they are called Appeals; so likewise in all such Scotch causes as come before the House of Lords.
In the whole-sheet Table of standing orders of the House, dated anno 1804, and therein ordered to “be printed and published, and affixed on the doors of this House,” (the House of Lords) “to the end all persons that shall be therein concerned may the better take notice of the same,”—in the title, as well as in the body of the paper, Writs of Error are mentioned in conjunction with Appeals, Writs of Error occupying the first place.
The declared principal object of the document in question being to bring to view the amount of the demands made upon the House of Lords, for such part of its time as could with propriety be allotted to the exercise of its appellate jurisdiction, if the cognizance of the Appeals called Writs of Error occupied any portion of that time, the reason for stating the portion of time occupied, applied no less pointedly to this sort of Appeals, than to any of the others: and the number of Writs of Error, as the appropriate column shows, has been much greater than that of all the other Appeals put together.
In the contrary case, viz. if by the Appeals called Writs of Error, no portion at all of the time of the House was occupied, then so far as the time of the House was the sole object, the reason for bringing to view the others would not extend to these.
In the Ulterior Results (Art. 6) to these Tables, and in ditto (Art. 4) to Table X. in the case of the Appeals called Writs of Error, presented to two of the three English subordinate Chambers of Review, viz. the King’s Bench, and of the two Exchequer Chambers that one which sits over the King’s Bench, the number of Appeals which occupy any portion at all of the time of the judicatory which is supposed to take cognizance of them, is not (it will be seen) more than 1-90th of the whole. The inference is—that possibly, and not altogether improbably, of the whole number of Writs of Error presented to the House of Lords in the course of these fourteen years, there was not one to which the mind of any one member of that superior and ultimate judicatory, by which the fate of so many groups of suitors had been disposed of, had ever been applied.
Of these Writ-of-Error Appeals, supposing the rate of influx to have remained, during the whole of the period, without increase (though a very considerable increase seems probable,) the number must, at the end of the period, have amounted to 584; at which time, of the Appeals called Appeals, the whole number furnished by this and the two other kingdoms put together, was no more than 501.
1794 27 3 30 0 4 20 24 0 17 17 0 34 34 0 6 6 0 11 11 0 0 0 0 5 5 1 4 5 3 0 3 1794
1795 17 2 39 41 19 58 1 5 6 0 3 3 0 23 23 0 2 2 0 1 1 0 0 0 0 1 1 0 4 4 11 0 14 1795
1796 23 2 38 40 25 63 2 16 18 5 11 16 9 34 43 5 8 13 0 2 2 0 1 1 0 5 5 0 3 3 1 0 15 1796
1797 35 3 48 51 38 86 2 31 33 6 25 31 7 41 48 5 20 25 1 5 6 0 0 0 1 12 13 0 4 4 0 10 5 1797
1798 24 7 31 6 14 20 5 17 22 9 30 39 4 13 17 1 3 4 0 1 1 0 15 15 0 8 8 0 14 0 1798
1799 21 2 23 1 16 17 1 6 7 2 13 15 1 4 5 0 1 1 0 1 1 0 4 4 0 3 3 9 0 9 1799
1800 31 1 32 2 29 31 2 8 10 5 19 24 2 5 7 0 2 2 0 1 1 1 4 5 0 2 2 15 0 24 1800
Totals, 178 20 198 18 131 149 19 87 106 32 194 226 17 58 75 2 25 27 0 4 4 2 46 48 1 28 29 39 24
TABLE VIII.
AN ACCOUNT of the Number of APPEALS Presented to the House of Lords; also, of the Number of Appeals Set down for Hearing, and Heard, and of the Number of Days occupied in Hearing the same; also, of the Number of Appeals Affirmed, Reversed, Remitted, Withdrawn, and Dismissed for want of Prosecution, from the Year 1801 to the present Time; distinguishing each Session, and how many of the same were brought from the Courts of England, Scotland, and Ireland(i) respectively; and how many of the same remain Not set down for Hearing at the present Time.—Printed by Order of the House of Lords; date of the Order, 11th of March 1807.
Sessions. Presented. Set down for Hearing. Heard. Days in Hearing. Affirmed. Reversed. Remitted. Withdrawn. Dismissed not being Prosecuted. Not set down for Hearing. Arrear of each Year. Gained upon the Arrear. Totals remaining upon the Arrear. Sessions.
England. Scotland. Ireland. Total. England. Scotland. Ireland. Total. England. Scotland. Ireland. Total. England. Scotland. Ireland. Total. England. Scotland. Ireland. Total. England. Scotland. Ireland. Total. England. Scotland. Ireland. Total. England. Scotland. Ireland. Total. England. Scotland. Ireland. Total. England. Scotland. Ireland. Total.
(i) [Ireland.] At the commencement of this second period of seven years, it is, that Irish Appeals make (as will be observed) their appearance for the first time. This change was the result of the Irish Union Act, 39 and 40 Geo. III. c. 69, 2d July 1800. During the interval between the Union and the Emancipation of the Irish Parliament from its dependence on the British, viz. anno 1782, by 22 Geo. III. c. 53, the Appeals now presented to the House of Lords sitting for the three United Kingdoms, used to be presented to the Irish House of Lords.
(l) [154.] So far as concerns the mala fide Appeals (which, till the time comes for hearing, at which conjuncture they are either withdrawn or dismissed, commonly without being argued, cannot be distinguished from the bona fide Appeals,) the cause of this appear may be seen in the fee-gathering system.
By the fee-gathering system, understand that system which, to the remuneration attached to the offices concerned in the administration of justice, gives the shape of fees: viz. sums of money, the aggregate of which rises and falls along with the number of suits, and the number of incidents taking place in each suit.
The multitude of mala fide Appeals is produced by the profit which the Appellant finds it in his power to make, by subjecting the Respondent to the ulterior load of delay, expense, and vexation, attached to this ulterior stage: and, forasmuch as the amount of official fees has all along risen and fallen with the multitude of Appeals, mala fide as well as bona fide ones, it has thus been the interest of persons in high office, Judges and others, to render by apt encouragement the multitude of these acts of iniquity as great as possible.
This encouragement consisted in the giving to the operation of Appeal the effect of staying execution on the decision appealed from. By this means, where, in contemplation of the advantage to be reaped from such delay, a man had got possession of property to which he had no right, whatsoever might be the nature and amount of such advantage, was secured to him, for such length of time as the delay could be made to last. See Ulterior Results, Art. 6.
Among the “standing orders relating to the bringing in and proceeding on Writs of Error and Appeals,” date of the last edition 1804, the first upon the list is that of the 23d of December 1661. At this time, the sort of Appeal called a Writ of Error, was the only one of which that House was in the habit of taking cognizance. Of this standing order, there are two declared objects: one is, the frustrating that “desire to delay justice,” the frequency of which on the part of the plaintiffs (viz. the Appellants) is recited as a fact to which the attention of the House had directed itself; the other is the causing these plaintiffs to “satisfy the officers of this House the fees justly due to them.” So far as concerns the abuse, unfortunately the arrangements therein professed to be designed for the prevention of it, have ever since proved to be, what, at that time, they might, without any extraordinary degree of penetration, have been foreseen to be, if not seen to have been, viz. as inefficient as they are complicated. In this case, as in every other, if the prevention of the wrong be really desired, the one thing needful is, to take away the profit of it. In the instance of these Writs of Error, in the case of the mala fide ones, the profit consisted in the stoppage applied to the execution of the judgment pronounced below; to secure this profit in the first instance to the mala fide Appellant, from whose pocket the official fees, payable on account of the Appeal, were to come, and through him to the official pockets into which those fees were to come, the power of the House had been employed:–this profit was left untouched.
In regard to the other object, viz. the enabling the officers of the House to gather fees, the degree of success with which this part of the plan has been attended, has ever since been accepted as full compensation for the failure in regard to the other.
The learned person to whom these officers are indebted for the success, and the public for the failure, was the ever pious and venerable, and, on many and great occasions, honest, Earl of Clarendon, Prime Minister as well as Chancellor of that day.
For ulterior exemplifications of the effects produced in this way by the fee-gathering system, see Elucidations to Table X. (d.)
1801 2 25 4 31 2 11 2 15 1 8 0 9 2 31 0 33 1 4 0 5 0 2 0 2 0 2 0 2 0 8 0 8 0 1 0 1 0 0 0 0 13 0 37 1801
1802 3 30 5 38 1 29 6 36 0 20 1 21 0 69 2 71 0 10 0 10 0 4 1 5 0 6 0 6 1 5 0 6 0 4 0 4 0 0 0 0 7 0 44 1802
1803 4 38 7 49 2 23 6 31 0 14 1 15 0 38 3 41 0 11 0 11 0 3 1 4 0 0 0 0 0 5 1 6 0 6 0 6 0 0 0 0 22 0 66 1803
1804 1 38 8 47 1 16 8 25 1 10 0 11 6 35 0 41 1 7 0 8 0 2 0 2 0 1 0 1 0 7 0 7 1 6 1 8 0 0 0 0 21 0 87 1804
1805 6 27 5 38 2 23 5 30 1 9 2 12 4 37 6 47 1 9 2 12 0 0 0 0 0 0 0 0 0 8 1 9 0 10 0 10 0 0 0 0 7 0 94 1805
1806 3 45 7 55 5 37 7 49 3 14 0 17 14 52 0 66 1 10 0 11 2 2 0 4 0 2 0 2 0 4 0 4 0 4 0 4 3 24 3 30 30 0 124 1806
1807 4 38 3 45 1 28 3 32 2 0 2 4 8 0 8 16 1 0 2 3 1 0 0 1 0 0 0 0 1 5 0 6 0 5 0 5 0 0 0 0 30 0 154(l) 1807
Totals, 23 241 39 303 14 167 37 218 8 75 6 89 34 262 19 315 5 51 4 60 3 13 2 18 0 11 0 11 2 42 2 46 1 36 1 38 3 24 3 30 130 0
TABLE IX.
An ACCOUNT of the Number of Appeals set down for Hearing on Bye-days(k), and of those Heard and Not Heard, from the year 1794 to the year 1800; distinguishing those brought from the Courts of Westminster-Hall, and from the Court of Session in Scotland respectively. Printed by order of the House of Lords; date of the Order, 13th March 1807.
england. scotland.
Number of Petitions for Bye-days. Number of Petitions for Bye-days.
Years. Presented. Heard. Not Heard. Total. Presented. Heard. Not Heard. Total.
(k) [Exhausted.]—In Equity practice, in certain cases to a small extent, a premature and provisional Examination (Examination de bene esse, Examination in perpetuam rei memoriam) may be obtained, though not without an additional and unreimbursable expense; in Common-Law practice, not in any case, on any terms.
1794 0 0 0 0 8 2 6 8
1795 0 0 0 0 3 2 1 3
1796 1 1 0 1 6 1 5 6
1797 3 3 0 3 17 10 7 17
1798 2 1 1 2 6 4 2 6
1799 0 0 0 0 4 1 3 4
1800 2 2 0 2 4 2 2 4
Totals, 8 7 1 8 48 22 26 48
TABLE IX.—(continued.)
An ACCOUNT of the Number of Appeals set down for Hearing on Bye-days, and of those Not Heard, from the year 1801 to the present time; distinguishing those brought from the Courts of Westminster-Hall, Scotland, and Ireland respectively. Printed by order of the House of Lords; date of the Order, 13th March 1807.
england. scotland. ireland.
Number of Petitions for Bye-days. Number of Petitions for Bye-days. Number of Petitions for Bye-days.
Years. Presented. Heard. Not Heard. Total. Presented. Heard. Not Heard. Total. Presented. Heard. Not Heard. Total.
1801 2 1 1 2 8 6 2 8 2 0 2 2
1802 0 0 0 0 10 6 4 10 1 0 1 1
1803 3 0 3 3 11 9 2 11 0 0 0 0
1804 1 1 0 1 7 3 4 7 0 0 0 0
1805 1 0 1 1 10 5 5 10 6 2 4 6
1806 2 1 1 2 6 3 3 6 1 0 1 1
1807 2 1 1 2 5 0 5 5 0 0 0 0
Totals, 11 4 7 11 57 32 25 57 10 2 8 10

ULTERIOR RESULTS
DEDUCIBLE FROM TABLES VII. VIII. and IX.

1.

1. Average number of Appeals heard per year (exclusive of Writs of Error, of which no account is given)—a little more than—but say . . . . . . . . 14: For by 14 (the number of years) divide 195 (the Appeals heard,) the quotient is 1313/14: But, the last year (1807) not being an entire year (the accounts coming down no lower than 11th March,)—for the number heard in this year, instead of 4 (the number heard in the part ending 11th March,) take 17 (the number heard in the whole of 1806,) this gives—in years 14, heard causes 208; causes heard per year 146/7.

2.

2. Number of years requisite to dispose of the existing arrear (the rate of dispatch being supposed as above, 14 per year, and the growing influx to be neglected) is—years 10½.

3.

3. Number of years requisite to dispose of the above-mentioned growing influx, considerably more than years 27: For, in 10 years out of these 10½, the number presented would be not less than the number presented in the 10 years ending in 1807, viz. 389; and this number would, at 14 causes heard per year, take the above number of 27 years to dispose of it: for, while the now existing arrear was diminishing, partly by hearings, and partly by the expulsion of the mala fide Appeals (viz. those either withdrawn or dismissed, as not having been destined for hearing,) the growing influx would not be undergoing any such diminution: a mala fide appeal brought for delay being never withdrawn till the day for hearing is at hand.

4.

4. In the two periods respectively, the number of days occupied in the hearing of a cause, distinguishing the Kingdoms from whence the Appeals were respectively presented, were upon an average as follows, viz.—

FIRST PERIOD—1794 to 1800.
Kingdoms. Causes Heard. Days Employed. Average Number of Days Employed in a Cause.
England 19 32 113/19 a little more than 1⅔
Scotland 87 194 220/87 not quite
Together 106 226 27/53 rather more than 2⅛
SECOND PERIOD—1801 to 1807.
Kingdoms. Causes Heard. Days Employed. Average Number of Days Employed in a Cause.
England 8 34 exactly
Scotland 75 262 337/75 not quite
Ireland 6 19 exactly 3⅙
Together 89 315 348/89 rather more than
Both periods 195 541 2151/195 nearly

5.

5. Number of years during which, at the date of these accounts (in March 1807,) the cause that had waited longest must have been waiting for justice, about . . . . 3: For, from the commencement of the existing arrear, viz. from the year 1800 inclusively, to the day on which the accounts end, the number disposed of in all these ways was no more than 190: and already, in 1804, the number of the Appeals presented, viz. in the five years from 1800 to 1804 inclusive, may be seen to have been 197; being seven more than, on the 11th March 1807, had been disposed of: which seven must, since the 11th of March 1807, have been disposed of before any of the Appeals presented in 1805, or at any later period, can, in regular course, either have come on to be heard, or have arrived at that stage, at which the Appellant, whose object was delay, could have found the requisite inducement for suffering his Appeal to be struck out of the list, viz. by withdrawing it (to save ulterior costs) or, for want of prosecution, suffering it to be dismissed.

6.

6. In the Scotch causes, proportion of mala fide to bona fide Appeals nearly as 152 to 267; nearly as . . . . . . . . . . . . . . . . . . . . 1 to 1¾: For 419 is the number of Scotch Appeals presented; 152 the number of those either withdrawn, or suffered to be dismissed.

By a mala fide Appeal is here meant an Appeal in the instance of which the Appellant either is, at the time of making it, conscious of his not having right on his side, or at least has no expectation of success: in this case, the profit, certain and contingent together, expected by him from the delay thus produced, is his inducement for subjecting himself to the vexation and expense attached to this state of litigation:—his inducement, and the only inducement which, in the shape of pecuniary profit to himself, he can have.

To his reaping any such profit, one condition, however, is annexed, and that an indispensable one, viz. that among the effects attached to the Appeal by the practice of the Court above, shall be—the stoppage of execution, viz. that so long as the Appeal remains undisposed of, the judgment appealed from shall not be executed, nor consequently the Appellant be by such execution divested of the possession which he has of the subject in dispute.

Among the English Appeals presented to the House of Lords, in the case of those which are called Appeals (being those which are presented in Equity causes,) such stoppage of execution does not take place: accordingly, no advantage being to be got by the Appellant, in any other event than that of its being, by the superordinate judicature, decreed to have right on his side, the Appeals presented from any one of the Equity Courts may, with few or no exceptions, be reasonably presumed to have been bona fide ones. Accordingly, upon 43 presented, whereof 27 heard, the English list affords in the 14 years no more than 4 withdrawn and 2 dismissed: together 6: on the 43 presented, not so many as 1 out of 7; on the 27 heard, exactly 1 to 4½.

But since these six Appeals could not have had for their final cause any profit resulting from delay, some other cause or causes must in these instances be found. Among these causes, the most productive, if not the only probable ones, seem to be—

1. Death of one or more among the parties, by which in any one of a variety of ways, the conditions, the concurrence of which is necessary to the prosecution of the Appeal, viz. the requisite interest, or, on other accounts, the inclination, or, in respect of pecuniary sufficiency, the power, or the opinion, in respect of interest or probability of success, may, one or more of them, have been made to cease.

2. Failure of pecuniary sufficiency, or of resolution and perseverance on the Appellant’s side.

3. Compromise: a result which may have been produced either by some one of the causes above mentioned, or from a difference in the conception entertained by the parties respectively, of the probably prevailing opinion of the judicatory, at the one time compared with the other.

In the instance of the English Appeals, called Appeals, those either withdrawn or dismissed, being then not any of them mala fide ones, and bearing (though not near so large a proportion as in the case of the Scotch Appeals, yet) some proportion to the number heard—not the whole (it may naturally be said) should, in the instance of the Scotch Appeals, be placed to the account of mala fides, any more than in the instance of the English Appeals.

But what seems probable is, that in the case of the English Appeals, the number of those withdrawn or dismissed, small as it is, may have been swelled by some accidental cause not applying at all, or not with equal efficiency, to the Scotch Appeals: for, under the incitement of a profit in like manner to be gained by delay in the instance of the class of English Appeals, called Writs of Error, upon so large a number as 1810, we shall see not more than one in 90 argued; 89 out of 90, therefore, either withdrawn or dismissed:—[See Table X., Ulterior Results, Art. 2.]

And this, though the premium for delay must, latterly at least, have been much less in the case of the English Appeals, than in the case of the Scotch Appeals: not more than about one year’s delay being at the expense of the costs in Appeal, purchasable in those English intermediate Courts of Appeal (27th Report of Finance Committee 1798,) while latterly no less than three years’ delay has been purchased, viz. (as above, Art. 4,) in the House of Lords.

In all these cases, the profit by delay, and consequently by mala fide Appeals, is matter of calculation; depending, on the one hand, on the proportion between the amount of costs in the House of Lords, up to the time when the appeal goes out of that judicatory by being withdrawn or dismissed, and on the other hand, on the profit which the situation of the Appellant enables him to make of the subject in his possession in the meantime: rent of land, for example, 4 per cent. interest of money, 5 per cent. commercial profit, 12, 15, 20 per cent. or more: or, if no security, or no adequate security has been exacted of him, appropriation of the whole subject, viz. by expenditure, exportation, or concealment.

7.

7. Number of Scotch Appeals in which injustice is the result of the rule, giving to the act of Appeal the effect of stopping execution, is 261 out of 314: nearly 5 out of 6. For by adding to the number withdrawn (88,) and the number dismissed (64,) the number in which the decree made below was affirmed (109,) we have for a total, 261: in all which instances, so long as the decree, the justice of which came thus to be afterwards acknowledged by the unsuccessful party, or declared by the supreme judicatory, remained unexecuted, so long did the injustice last.

On the other hand, by adding to the number in which the decree was reversed (38,) the number in which the cause was remitted to the courts below, viz. for the purpose of some change to be made in the decree (15,) we have 53: being the number of instances, in which the delay was productive either of no injustice at all, or none but what received some compensation in the justice operated by such change.

Note the distinction between the number of cases in which injustice, viz. in the shape of delay, was the result of the rule, and ditto of ditto, in which the Appeal was accompanied with mala fides. The cases in which the delay proved to have been productive of injustice, were as well those in which the decree was affirmed, as those in which the appeal was either withdrawn or dismissed; while it was only by those in which the Appeal was either withdrawn or dismissed, that any presumption was afforded of mala fides.

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ULTERIOR RESULTS
DEDUCIBLE FROM THIS TABLE.

1.
1. The English bona fide Appeals were, as per column 1, 7
3, 12
5, 1
9, 5
25
2.
2. The English mala fide Appeals were, as per column 2, 543
4, 1247
10, 1
1791
3.
(a) [125.] The number of these English Appeals alone (being the Appeals that, under the name of Writs of Error, were presented to the House of Lords,) is not much less than twice the whole number of Scotch Appeals presented to the same judicatory—more than thrice the number heard; while of these and all other English Appeals put together, the whole number heard (i.e. argued,) if any at all were argued, was at any rate much less than that of the Scotch Appeals argued in that same House. Of these English Appeals, so small, if any was the number heard, that, either on this account, or some other which remains to be explained in the accounts called for and presented, as per Tables VII., VIII., and IX., for the purpose of showing the draughts made on the time of the House by its appellate judicature, the Appeals of this description were not comprised:—though, in the titles of the Whole-sheet, Table of Standing Orders, they face the eye at the same time.
Concerning these same 125 Appeals (called Writs of Error) presented to the House, two other articles of information would have been of use with reference to the present purpose, viz.—
1. From which of the four Common-Law Westminster-Hall Courts, capable of furnishing Appeals directly to the House, viz. the two Courts of immediate jurisdiction (the King’s Bench and the Exchequer,) and the two Courts of intermediate appellate jurisdiction (the Exchequer Chamber sitting over the King’s Bench, and the Exchequer Chamber sitting over the Exchequer,) they were respectively presented.
2. Of those, if any, which, through the medium of the King’s Bench, were furnished by the Common Pleas, how many, in their ascent to the House, went from the King’s Bench directly; and how many, not till after they had passed through that one of the two Exchequer Chambers which sits over the King’s Bench:—passing thus through two intermediate Chambers of Review, before their arrival at the ultimate seat of appellate judicature.
3. English Appeals, bona and mala fide together, proportion, for want of the distinction between argued and not argued, anascertainable; but the mala fide greatly predominating,(a) 125
Total of English Appeals, 1941

4.

4. In the three English intermediate Chambers of Review, mala fide Appeals were, to bona fide ditto, as 1790 to 20(b), or as 89 to 1.

5.
5. Scottish bona fide Appeals were, as per column 12, 39
6.
6. Scottish mala fide ditto were, as per column 13, 29
7.
7. Scottish Appeals, bona and mala fide together, 68

8.

8. English Appeals, certainly bona fide, were to Scottish ditto, as 25 to 39.

9.

9. English Appeals, certainly mala fide, to Scottish ditto, were as 1791 to 29; or as 612/2 2/9 to 1.

10.

10. English Appeals, bona and mala fide together, to Scottish ditto, as 1941 to 68; or as 283/6 ⅞ to 1.(c)

TABLE X.

ENGLISH AND SCOTCH APPEAL TABLE,
FOR THE YEARS 1795, 1796, AND 1797,

Shewing the Number of Appeals (including the Species of English Appeals called Writs of Error,) presented, on the one hand, from the one Supreme National Judicatory of Scotland (viz. the Court of Session)—on the other hand, from the four English National Courts at Westminster Hall, standing on the same level with the said Court of Session, in the scale of Jurisdiction: distinguishing, in the instance of each Court, the Number of Appeals Not Argued, from the Number of ditto Argued, and thereby the Number of mala fide Appeals (brought without hope of favourable Decision, and for no other purpose than that of Delay,) from the Number of bona fide Appeals:—Taken from the Documents furnished by the 27th Report of the House of Commons’ Committee on Finance, Anno 1798, (pp. 27 & 191:) And by supplying the omitted Numbers of the English Appeals called Writs of Error, designed for obviating the Misconceptions liable to be deduced from the House of Lords’ Appeal Accounts of the 11th of March 1807, in disfavour of Scottish, as compared with English Judicature.

APPEALS (INCLUDING WRITS OF ERROR) PRESENTED
FROM THE ENGLISH WESTMINSTER-HALL COURTS AND THE COURT OF SESSION.

(the supreme national judicatory of scotland), respectively, viz.

(d)
* It will be observed, that the 550 Appeals cover a space of three years, while the salary derived from them is only applicable to the year 1797. In that year the mala fide Appeals were to the bona fide as 215 to 2, and the applicable proportions of salary will be £726 : 7 : 6, and £6 : 16 : 5.–Ed.
[Argued 7, not argued 543.] Per 27th Report of House of Commons Finance Committee, anno 1798, pp. 27 and 191, the annual profit made by the Chief-Justice of the Common Pleas upon Writs of Error of both descriptions, viz. argued and not argued, i.e. bona fide and mala fide put together, was £733 3 11
Deduct profit on the seven bona fide ones, 9 8 0
Remains ditto on the 543 mala fide ones,* £723 15 11
“The Lord Chief-Justice” (viz. of the Common Pleas,) “is Clerk of the Errors” (it is there said, p. 191) “of the Court of Common Pleas; and Stephen Hough is the Clerk to execute the office for him.”
The errors in question are errors alleged to have been committed by the judicatory, of which the Judge in question is the chief and managing Judge; on the occasion of judgments pronounced in that same judicatory; and it is by means of these 550 judgments, the errors of which, if any, are (except in an almost unexampled case of difference of opinion) of his own making, that this same Judge, in the capacity of Clerk of the Errors under himself, puts into his own pocket this £733.
In 543 out of these 550 instances, the imputation of error can scarcely have been otherwise than groundless; it may have been so in any of the remaining seven; but if there were any in which it was just, in so many must he, in his two capacities together, have been deriving a profit from his own wrong.
In the case of the Court of Session, had any document been made public, by which it had appeared that in the course of three years, 550 decrees of that Court had been complained of as erroneous, the imputation (it seems probable) would not have sitten altogether easily upon the Judges of that Court, and in particular upon the President. But if it be in the power of any such imputations to excite commotions in learned minds, we see the virtue of £733 a-year in the character of a sedative; and if such be its effect on an English constitution, its effect on a Scottish constitution would not naturally be expected to manifest any very considerable difference.
(e)
Years. I. FROM THE ENGLISH COURTS. II. FROM THE SCOTCH COURTS.
1. To the several intermediate Courts of Review, viz. 2. To the House of Lords. To the House of Lords.
1. From Common Pleas to King’s Bench. 2. From King’s Bench to Exchequer Chamber. 3. From Exchequer to Exchequer Chamber. 4. From Westminster-Hall Courts to the House of Lords, viz. 5. From the Court of Session to the House of Lords.
1. From Common Law. 2. From Equity.
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.
Argued. Not Argued. Argued. Not Argued. Argued. Not Argued. Argued and not. Presented. Heard. Withdrawn. Presented. Heard. Withdrawn or Dismissed.
The same oversight has taken place, which is explained in note *. In this case, the mala fide are to the bona fide Appeals of 1797 as 511 to 2, and the applicable proportions of salary £1429 : 5 : 7½, and £5 : 11 : 10½.—Ed.
[Argued 12, not argued 1247.] By the Report just quoted (pp. 27 and 161,) the profit made in one year by the Chief-Justice of the King’s Bench, from the corresponding source, was £1434 15 6
Deduct profit on the 12 bona fide ditto, 13 16 0
Remain ditto on the 1247 mala fide ditto, £1420 19 6
If £733 a-year be sufficient to tranquillize a learned and reverend mind under the imputation of perpetual error, how much more certainly sufficient will £1434 : 15 : 6 be?
The Chief-Justice of the King’s Bench was not, like his learned brother of the Common Pleas, himself Clerk under himself, to pocket the fruit of his own errors—real or supposed;—£150 a-year (an addition to the above) is allowed by him to a Clerk, who with the title bears the sole honour of the office, without being to any greater extent encumbered with the emolument.
On this occasion, a further article of information, not altogether uninteresting, would be—(distinguishing the several Courts)—1810, being, in three years, the number of judgments to which error was imputed, what was the number in those same years, by which the imputation was escaped? or, in plain English, this being the number of dishonest litigants (chieflydishonest defendants with other men’s money in their hands,) by whom the invitation to purchase the delay at the price set upon it was accepted, by how many others was it declined? declined, whether it was that the quantity purchasable was not worth the purchase, or that money for the purchase of it was not to be found.
In the Finance Report above mentioned, the pages in which the matters here in question are contained, are pages 27, 160, 161, 190, 191, 236, 237, 272, 273. Taken together, it presents points of obscurity, which, on the occasion here in question, become sources of proportionable distress to an annotator, to whom the consciousness of any material misrepresentation, however unintentional, would be a source of concern and shame.
In p. 191, for example, under the head of Returns from the Court of Common Pleas, it is stated as above in so many words: “The Lord Chief-Justice is Clerk of the Errors, and Stephen Hough is his Clerk under him;” and this is the whole of the matter given in (M. 16) under the head of “An Account of the office of Clerk of the Errors in the Court of Common Pleas.” In every other instance, matter is given under the head of “General Business of the Office,” as well as other matter under about eleven heads, subordinate to, or deduced from, the general heads of “Receipts and Disbursements.” In this instance, nothing is given under either of those heads. It is for the purpose of doing nothing, and getting nothing by it, that the Lord Chief-Justice is kind enough (it seems) to nominate himself to be Clerk under himself.
That in some way or other the Chief-Justice of the Common Pleas gained £733 : 3 : 11 by alleged errors,—whereof all but the trifle above mentioned by the sale of factitious delay,—is certain (p. 27:) but in what particular way, baffles all research.
In pages 236, 237, under the head of “Returns from the Court of Exchequer,” Mr. Henry Edgell is stated as being “Clerk of the Errors in the Exchequer Chamber,” and as holding the office by appointment “from the Lord Chief-Justice of the Court of Common Pleas:”—£778 : 8 : 11 is therein stated as the “net receipt, for three quarters of a year,” from that office:—but the only pocket in which any part of it is represented as resting, is that of the officer so appointed; no part of it going, as in the instance of the other Chief-Justice, into the pocket of the learned and reverend patron of the office.
That, in the instance of the Chief-Justice of the Court of Common Pleas, as above stated, the alleged errors thus converted into sources of profit to the Judge, were errors alleged to have been committed by the Judge himself, was matter of inference. Should this inference be itself found erroneous, the error was altogether unintentional, and remains as yet invincible.
In the Court of Common Pleas, “Errors” constitute the supposed subject-matter of the supposed business of a Clerk, who is at the same time Chief-Justice: these errors, if not by the Chief-Justice by whom else have they been committed? Question the same in regard to the still more profitable mass of errors, the source of which is the King’s Bench.
Meantime, in the way of a corollary, these particulars may serve, moreover, as samples of the produce of jurisprudential science: of that part of the rule of action which men have been kept from knowing, that they might be pillaged for not knowing it—samples of the purpose for which, as well as of the mode in which, it has been elaborated.
1795 2 160 4 368 0 0 39 2 1 0 17 3 5
1796 3 170 6 368 0 0 38 2 2 0 23 11 8
1797 2 213 2 511 1 0 48 3 2 1 35 25 16
Totals, 7 543(d) 12 1247(e) 1 0 125 7 5 1 75 39 29
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SUMMARY VIEW OF THE PLAN OF A JUDICATORY, UNDER THE NAME OF THE COURT OF LORDS’ DELEGATES,
Proposed for the Exercise of those Judicial Functions, the adequate Discharge of which by the whole House has, for these six or seven Years, been rendered confessedly impracticable, by want of Time.

SECTION I.: NUMBER AND CHOICE.

The Judges, Members of the House (so far as obtainable:—viz. so far as in that high station it shall happen to a set of fit persons, finding adequate inducements for the acceptance of so laborious a duty) to obtain the preference:—[See § 2, article 2]—and with salaries;—in consideration of their taking upon them the requisite official obligations.

2. Puisnes, three:—to be elected, one for each of the three kingdoms, by the Lords sitting for that kingdom, and to be denominated respectively the English, the Scotch, and the Irish delegate:—in the hope that in each the choice may fall upon some person who, being in a special degree conversant with its peculiar laws and local circumstances, may be considered as in a more particular manner charged with its legal concerns. In the two minor kingdoms, all danger from local partialities will be excluded by the number of the votes (three to one) not exposed to any such sinister influence.

3. The President to be elected by the whole house, and to be denominated the Union delegate:—that the English ascendency, on its present footing, may be preserved; and thereby this committee rendered the more correct a representative of the whole house. The presumption is, that the president, and perhaps the three puisnes, or some of them,—at least, by reason of the peculiarity of Scotch law, the one for Scotland,—will, at the outset, be a professionally-bred lawyer, taken from the bar, or from the bench. But the need of such assistance will be less and less thenceforward—[See § 2, article 2, 3:]—and all this will, of course, depend, at all times, upon the pleasure of the House.

4. Election annual:—viz. at the commencement of each session.—If, as in the case of the king’s delegates, viz. in ecclesiastical and admiralty causes, there were a fresh election for each cause, the office would not be worth acceptance: or, if it were, a perpetual ferment would thus be kept up: at any rate, the benefit of appropriate experience would be apt to be lost. If the office were for life, as in three of the four Westminster-Hall courts, the mind of the delegated body would not be (as, in this case, not to change the constitution, it ought to be) the nearest resemblance capable of being taken of the mind of the delegating body: the supreme judicature would be no longer substantially in the House of Lords. The renewal of the election every year, will provide, in case of necessity, the gentlest and most decorous mode of ridding the judicatory of any member whose performance may have fallen short of expectation: while the apprehension of it will be a security for propriety of conduct, and a preservation against negligence. Nor yet would this possibility of amotion destroy the value of the office: it would be considered as differing substantially but little from an office for life: as in the case of the chairmanship of the Middlesex sessions, and in that of the chamberlainship of the city of London. The former case may be referred to, as one Edition: current; Page: [56] in which the utility of periodical election, as above, has in every point of view received a satisfactory exemplification.

5. Mode of election secret, viz. by ballot:—that the electors, being free as possible, as against all influence of will over will (no influence prevailing but the unpreventible and oftentimes salutary influence of understanding over understanding,) the mind of the delegated body may, as above, be the faithful copy of the mind of the constituent body, taken in its permanent and habitual state:—and that no elector may stand exposed, or conceive himself exposed, to the danger of finding himself, by an adverse vote, rendered an object of personal displeasure to a person to whom it may happen to become his judge.

6. Notwithstanding the appropriation of the title of president to a single person, the functions to be exercised by all the judges in turns: each taking his month, or his number of causes, or the causes of his own kingdom: or the above different modes of alternation being combined:—that inept candidates may keep aloof;—that the sense of responsibility may be kept alive in all;—that the faculties of all may be sharpened and invigorated by exercise;—that no one of all four offices may ever degenerate into, much less be at the time of the appointment designed to be made, a sinecure;—and that each pursue judge may be the better qualified for eventually succeeding to the office of president, thereby adding to all other elements of aptitude that of appropriate experience.

By the obligation of presiding, i. e. taking the lead in causes, and being the mouth-piece of the court—viz. not only in the delivery of the decision, but, in the conduct of the whole business, doing all that which, in judicial business, is done by the chancellor in the House of Lords,—an effectual exclusion will be put upon all persons manifestly unfit for the conduct of judicial business in general:—by the more particular obligation of presiding in causes coming from the kingdom for which each delegate is respectively elected, an exclusion will naturally be put upon a person not particularly competent to the conduct of the business from that kingdom; a person conversant solely in Scotch law will not find it so easy to be chosen to fill an English or Irish delegateship; a person solely conversant in English or Irish law will not find it so easy to be chosen to fill the Scottish delegateship.

SECTION II.: MEMBERS, LORDS VISITANTS.

1. Every Member of the House to bring with him into the court of Lords Delegates every other right; but not that of voting.—Not that right;—because to that are attached whatever imperfections the Lords’ judicatory has been charged with by Lord Hale: viz. fluctuation of numbers, whence general deficiency of numbers (especially of minds actually applied to the business) alternating with occasional excess:—occasional partialities or suspicions of partiality, by reason of latent interests;—occasional deficiency in point of intellectual aptitude, or appropriate learning, in the instance of the presiding member, or of a more or less considerable proportion of the other voters;—want of a sufficiently strong sense of responsibility, that guard to probity, that security for adequate intelligence: a deficiency which so naturally results from the power of contributing, by a bare expression of will, to the formation of a decree, without the obligation of giving reasons.

So long as it is without the right of voting, although a Lord were to carry with him to the judicatory all the partialities of a party, he would only add one unpaid, to the two professional, advocates. For ages together, according to Lord Hale, a multitude of assessors, with right of “advice” only, formed a part of the judicatory of the Lords’ House.

2. In the court of Lords’ Delegates, Scotch peers, though not having seats in the House, to be admitted to the privileges of Lords Visitants: in like manner Irish Peers and Bishops.—The design and expectation is that, with the aid of so numerous a reinforcement, there might be found, for subsequent vacancies, a sufficient number of persons already invested with the peerage, willing to charge themselves with the duties, as well as able duly to discharge the functions, of the office. Judicature, it is conceived, and especially in the particular tribunal here in question, would be a still more appropriate preparative than advocateship, for judicature. In the character of Lords Visitants, with every right but that of voting, the members at large of the House of Lords, together with the Scotch and Irish non-sitting Lords, would be what, according to Lord Hale, the Consilium Magnum was formerly in the House of Lords—judges, as to every right but that of voting. The bench of the court being open to them as Lords Visitants, a sufficient number for each kingdom might find adequate inducements for frequent attendance, in the mixed and decorously ambiguous characters of inspectors and censors, students, and future candidates:—nay, even, on occasion, if such be their pleasure, latent advocates for particular interests:—forasmuch as they will not have it in their power to gain support to those interests otherwise than by reason, from which no prejudice can ensue to justice. Among the Scotch and Irish non-sitting lords, such as may have it in contemplation to become candidates for seats in Edition: current; Page: [57] the House on future vacancies, will possess on this bench a theatre, on which their qualifications will find much better opportunities of displaying themselves, than any that are at present open to them, or that could be opened to them by any other means. For the chancellorship (not to insist on the chief-justiceships) this bench, either on the judges’ side, or on the Lords Visitants’ side, might, after due probation time, afford at least as suitable a nursery as the bar of a common-law court. The instances of Sir Christopher Hatton, Lord Shaftesbury, and even Lord Clarendon, together with Cromwell’s English judges in Scotland, may be worth adverting to in this view. Against inaptitude for want of appropriate learning, a free and periodically-repeated election, an election by that House, in which, at the same time, the crown can never fail of possessing its due influence, will surely be at least as good a security as can be afforded by the single probity and discernment of any minister.

3. Power to each judge of the court to appoint for his occasional substitute a Lord Visitant; (such substitute, however, not to preside [as per § 1, article 6] without the consent of all the rest:)—that, in case of indisposition, the number of judges may never be incomplete;—and that from this faculty, Lords, looking forward to the judgeship, may derive an additional opportunity of manifesting, as well as acquiring, superior aptitude. The care of his own reputation will (it is conceived) prevent the judge from choosing for a substitute any Lord other than one whose fitness for the station might, upon a vacancy, be sufficient to point him out to notice.

In the judicial establishment of Scotland, this power of substitution is exemplified to a very considerable extent: and though under so much less efficient security against abuse than here, with (it is supposed) sufficiently established and generally recognised advantage.

SECTION III.: DECISION OF THE COURT—ITS EFFECT.

1. In respect of irreversibility and immutability, except in the possible, but highly improbable, case of misbehaviour on the part of a majority of the four judges, of such sort as to call forth censure, the judgment of the Court of Lords’ Delegates to stand on the same footing with that of the House:—otherwise it would be no better than an interpolated and additional stage of judicature, affording to the time of the House but an inadequate relief, and to suitors a grievous additional burthen, instead of relief.

2. The Court divided, and the numbers equal, power to the court to call in a Lord Visitant for the occasion: if no one can be thus agreed on, each judge to propose one, and the House to choose (viz. as before by ballot,) but without being restricted as to the person so proposed.

SECTION IV.: PLACE OF SITTING—HABILIMENTS—TITLE.

1. Place of sitting, as near to the House as may be:—at any rate, under the same roof:—that, in the public mind, the idea of the body delegated may be as closely as possible connected, not to say identified, with that of the body delegating: and that, in parliament time, whatsoever occasion brings members to the House, may have its chance of bringing Lords Visitants to the Judicatory.

2. Habiliments, such as may serve to combine in the public mind the idea of the judicial function with that of the superior political station and dignity:—Baron’s robes, for example:—higher ones, of course, if the judge possesses a higher rank in the peerage. The judges of the court of Exchequer having originally been Barons (probably of parliament,) bear, though not the robes, the title of Barons.

3. In an ante-room leading to the bench, a Lord Visitant to invest himself with some easily assumed and redeposited ensign of office (such as a short mantle,) to attest to the public eye his right to the privileges which he may be about to exercise:—The distinction being thus sufficiently expressed without the aid of place, seats left unoccupied by Lords Visitants may, by sufferance, as at one time in the King’s Bench, be occupied by private individuals.

4. Each judge, if not a peer, to bear before his name the title of Lord, during his delegateship.

SECTION V.: DURATION OF THE ESTABLISHMENT.

1. Duration of the establishment, temporary, of course:—as in the case of the Grenville act, and the Middlesex police act. In the first place, a length of time sufficient, upon calculation, by means of uninterrupted sittings, for the discharge of the existing arrear:—to that another fixed length added, sufficient for a further trial of the institution, as applied to the current influx.

2. At the end of the last fixed length of time, the salaries to cease, unless the establishment be continued on by parliament: but with power to the House to continue the authority beyond the day:—lest causes that have been begun before this judicature, should remain undecided by it. The salaries, Edition: current; Page: [58] unless a day were fixed for their cessation, would, in their tendency, operate as bounties upon delay.

SECTION VI.: OBLIGATIONS.

1. Oath of office, if any, not so general as to be nugatory.—The use of official oaths is, in case of misconduct, to expose to loss of reputation him, who, by deficiency of legal evidence, or by difficulties standing in the way of prosecution, is exempt from legal censure: to which purpose, the collection made of the modifications of misconduct should be as ample, and the description given of them as particular and pointed, as possible. The bad effect is, by sham security to engage unwarranted confidence: in demonstration, a bridle; in effect, a cloak.

2. A Lord Delegate, if a member of the House, not to speak or vote in the House, or give proxies, during his delegateship:—lest, of the time purchased for judicature, any part be diverted to politics;—lest the politician corrupt, or be suspected of corrupting, the judge;—and lest the fear of their leaving their seats in the court vacant, while engaged in the house, should exclude members from being the objects of choice.

GENERAL OBSERVATIONS.

The option is (be it observed) not between this plan and doing nothing (for either the House will abdicate its appellate judicature, having first converted it into a manufactory of vendible delay, or something will be done,)* but between this plan and some other. Of this plan, the first object was, that as little change should be made as possible: the next, that whatsoever change were made, should be for the better. The admission of the non-sitting Scotch and Irish Lords to the privileges of Lords Visitants, episodical as it may appear in form, is in substance not a change, but a preservative against change. The main object was to give the best chance possible for continuing the function in the aristocratical hands in which it has all along (and, though not altogether without inconvenience, yet without any inconvenience on the score of aristocracy) been lodged: continuing it, viz. so far as could be done without establishing that indefeasible monopoly, which, in the eyes of the public, might be apt to appear preclusive of scientific aptitude. The advantages given by the plan to these unchosen peers, are therefore given to them, not as against their more fortunate fellows in the peerage, but as against commoners. Necessity,—and that, at the outset more especially, a very hard and galling necessity,—excluded them, on the occasion of the respective unions, from by far the most valuable portion of their hereditary privileges: to the proposed share in the supreme judicial function, this necessity has, under the proposed plan, no application: admitting them to it was therefore rather continuing what might be continued to them of their ancient privileges, than investing them with new ones.

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As to the ulterior and unlimited door left open for the admission of commoners, viz. of such persons in whose instance presumptive evidence of pre-eminent aptitude for this supreme judicial station may have been afforded by ability displayed in a subordinate rank of judicature, or in a course of professional practice;—were the right of election in any other hands than those of the Lords themselves, such an admission would indeed be a most serious invasion of their privileges: but, that right being in their hands, and theirs alone, the consequence is, that, by the enlargement of the field of choice, the power of the House, so far from being trenched upon, would be enlarged.

To render the mind of the body deputed, a faithful representative of the mind of the body deputing, it is not necessary that the members of the one should be members of the other. Doing the will of the King, the king’s delegates are not kings:—to do the will of the Lords, it is as little necessary, howsoever on other accounts desirable, that the lords’ delegates should be lords.

Want of physical power adequate to the dispatch of a mass of business within the space of time, within which, to be done effectually, it was necessary it should be done—want of time, in a word, was the infirmity (for such it is) by which kings were gradually compelled to commit the judicial part of their authority to other hands. Unless lords in England are exempt from those infirmities which are the inevitable lot of human nature, and under which there, as well as elsewhere, kings have bowed, it need not be matter of much regret to them to submit, thus late, to a necessity, which, for so many ages past, has been submitted to by kings. The innovation, let it be considered, if such it must be called, is not of the number of those which are so apt to be called for by rival ambition, but of those which are forced on by the irresistible hand of the universal and indefatigable innovator, time.

Various arrangements, which, in the planning of the proposed judicatory, presented themselves to the proposer, as highly conducive, not to say necessary, to the object of it, are for the present omitted, as not being applicable to this alone, to the exclusion of other judicatories.

By the consideration bestowed for the purpose of the present proposal, on the judicial function of the House of Lords, reference being all along made to the several ends of justice (of which an exact list has been endeavoured to be made out,) the inquiry was suggested, whether, in the exercise habitually given to that function, it has been really co-extensive with what it seems to have been generally regarded as tantamount to, viz. the function of general superintendence: meaning thereby, the habit of applying to such of the several evils correspondent and opposite to the several ends of justice, all such remedies as, in the nature of the case, are capable of being applied to them without the exercise of legislative power. Compared with this standard, the authority of the House, as at present exercised, was found to be deficient, and to a greater extent than could readily have been imagined.

The physical power of the House, as dependent on the quantity of applicable time, having already sunk under the load of business imposed on it by that part of the function of general superintendence, which has been habitually exercised by it till of late years, is of course still more decidedly unequal to any ulterior burthen.

But of this demand, a part of which has thus been found to overdraw the quantity of time capable of being appropriated to the discharge of it by the House itself, the whole might find an adequate supply in the more ample quantity capable of being allotted to it by the proposed Court of Lords Delegates:—a tribunal clear of all other business, and sitting on such terms, as would render the whole of its official time applicable to the one purpose.

The mass of remuneration which on other accounts would, it is supposed, be deemed necessary to be allotted to the members of a tribunal, so armed with power, and so exalted in dignity, would be sufficient to entitle the public to call upon them in return, for a degree of assiduity, not inferior to that which is seen to be habitual on the part of other judges. And the greater in extent and value the service thus rendered, the more secure would be the requisite disposition on the part of the public at large, as well as of the co-ordinate authorities, to submit, without regret, to the burthen that would be to be imposed by the requisite expense.

A view of the particulars, in respect of which the judicial function, as exercised by the House of Lords, fails of being coextensive with the function of general superintendence, in the extent above indicated as belonging to it, has been already taken. But, under the apprehension of awakening those jealousies which are so easily awakened, or of overloading that patience which is so easily overloaded, this part of the plan is, for the present at least, put aside.

What on this occasion ought never to be out of mind, is, that as to whatever regards the superintending authority of the House of Lords in matters of judicature, the existing practice, whatsoever may be its effects, was in its origin the mere fortuitous result of a contest for power, between two co-ordinate authorities—the result of anything rather than a calm, and comprehensive, and constitutionally-concerted Edition: current; Page: [60] plan, directed to the ends of justice. This want of design, and consequently of congruity, is no more than might have been anticipated, by a reflection on the natural course of human affairs: and it may be seen most satisfactorily demonstrated, as well as clearly displayed, in the instructive and interesting preface, prefixed by Mr. Hargrave to his edition of the work of Lord Hale on the jurisdiction of the House of Lords.

Other expedients have fallen under the notice of the proposer, as having been in contemplation:—an ordinary committee, to begin to sit, or to continue to sit, during the recess:—an appellate judicatory, to sit in London, but to confine itself to Scotch causes, &c. &c. But, regarding them as having already been found to stand excluded by one or other of two bars, viz. impractivability or inexpediency, he gladly discards the consideration of them out of a paper, in which the space necessary for any such discussions could not have been found.

He had even set his mind upon an inquiry into the fund of possible expedients, capable of being directed to the same end: on which occasion, distribution, governed by principles adapted to the nature of the case, or even by lot (a mode of selection less objectionable in reality than appearance, and even preferable to the modes of blind exclusion hitherto pursued,) did not pass unnoticed. But, nothing having thus presented itself to his conception, as promising to be suitable to the end in view, in a degree approaching to that of the plan here submitted, he suppresses without reluctance everything that had come into notice under that head.

As to the present plan, even to those exclusively competent judges, whose approbation it may not be fortunate enough to be honoured with, it may, it is humbly hoped, be not altogether without its use. Good or bad, an anterior plan, by breaking as it were the ice of the subject, is, to the framer of any succeeding plan, commonly found more or less of use, as an object of comparison and reference: and, as to the observations submitted in support of it, where, in the character of reasons, they fail of producing the effect endeavoured at, in the character of sources of error to be guarded against, they may still be not altogether without their use.

If in this, or any other way, the present plan should contribute to the production of any other, which, issuing from some more competent source, should, at the same time, be less open to the charge of unconstitutional innovation, and more highly conducive to the ends of justice, the labour here expended will have received, in the establishment of such better plan, its sufficient reward.

Issuing from high station, the stronger the recommendation a plan of any kind derives from the height of the station, the less it is commonly found to stand in need of any other. In one respect, therefore, the present plan possesses an indisputable advantage over any other that is at all likely to come in competition with it. Presented under a name altogether unknown, and without any authority or consideration in the state, if it were to find acceptance, it could do so on no other ground than that of its supposed conduciveness to the object in view.

To the work at large, if published, is intended to be added an examination that has been made of the plan proposed by Lord Hale, for an ultimately-appellate judicatory, to be substituted to that of the House of Lords:—substituted wantonly (one might almost say,) and when no such necessity had as yet presented itself, as that which at present presses upon the House. In the way of illustration, and as serving, by enlarging the view given of the field of argument, to afford the more ample satisfaction to a contemplative and cautious mind, the discussion, it is supposed, may be found not altogether unacceptable. As presenting any the least chance of being preferred in practice, either to the plan here submitted, or to any other, the plan of Lord Hale, notwithstanding the high reputation of its author, will scarcely be found worth notice: for, in the character of an innovation on the constitution, it was no less violent, than, with reference to the ends of justice, it may be seen to be unsubservient and unfavourable.

Jeremy Bentham.
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THE ELEMENTS of THE ART OF PACKING, as applied to SPECIAL JURIES, particularly IN CASES OF LIBEL LAW.

BENCHER OF LINCOLN’S INN.

FIRST PUBLISHED IN 1821.

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CONTENTS.

  • PART I.
    • Chap. I. Occasion of this Work.
      • § 1. Work on Libel Law commenced—occasion of it, - - - Page 65
      • Indetinite nature of libel, 66
      • 2. That work, why postponed to this, ib.
      • Are Special Jurymen what they are said to be, - - - ib.
    • II. Juries—their use as a Check to Judges, 67
    • III. The Check, how done away by influence.
      • § 1. Checks are ever odious to all persons checked, - - - 69
      • 2. Judges’ de ences against checks—corruption and deception, - 70
      • Curious instance of a judge’s satisfying the conscience of a juror—Note, - - - - ib.
      • 3. Corruption—modes of applying it, 71
      • Juries, old packing, like woodpigeons, or wild horses, - 73
      • Juries, new packing, like dovehouse pigeons, or well-broken geldings, - - - - ib.
      • 4. Deception, modes of applying it—instruments for the application of it, - - - - ib.
    • IV. Special Juries, a special engine of Corruption.
      • § 1. The system briefly stated, - 76
      • The oldest book of practice, no special jury mentioned in—Note, ib.
      • 2. The corruption briefly indicated, 77
      • 3. The system further developed, ib.
      • Special jury qualified list, - 78
      • 4. The corruption and dependence developed, - - - - 79
      • The guinea trade—Note, - ib.
      • Phantoms to terrify the trembling guinea-man, - - - 80
      • 5. Aggregate mischief of the system, 82
      • Sale of a species of indulgences—Note, - - - - ib.
      • 6. Views of the lawyers who penned the acts, - - - - 83
    • V. Jury Unanimity increases the Corruption.
      • § 1. The effect of corruption, how secured by it, - - - 84
      • Mode of forming verdicts, of remote antiquity, - - - - 85
      • 2. Corruptors, regular or casual, both served by unanimity, - - 86
      • Reciprocal duties of advocate and solicitor, - - - - ib.
    • VI. Purposes to which Influence on Juries may be made subservient.
      • § 1. Blind confidence in judges not warrantable, - - - 88
      • 2. Interests, to the action of which judges are liable to be exposed, 89
      • 3. Interests, to the sinister action of which English judges stand actually exposed, - - - 91
      • The training of judges, - - 91
      • More wrongs, more causes; more causes, more tees, - - ib.
      • 4. Existing popularity no sufficient ground for confidence, - 93
      • Case of sham writs of error, profits from them—Note, - ib.
      • The Bench filled from no other fund than the Bar, - - 96
    • VII. Chief purpose—Crushing the Liberty of the Press.
      • § 1. Liberty of the press, has it any and what existence? - - - 97
      • The press kept in a sort of abortive embryo state, - - - ib.
      • 2. Improcity in judges and their high allies—its hostility to the press, 98
      • The fee system, - - - ib.
      • 3. Incapacity in judges and their high allies—its hostility to the press, 100
      • Indecision the least doubtful instance—Note, - - - ib.
      • Men seated above the law have every thing to fear from the liberty of the press, - - 101
    • VIII. The Exchequer Packing Office suffices, - - - - - ib.
      • The grand house of call for guinea-men, - - - - - ib.
      • Horne Tooke’s account of special juries—Note, - - - 102
      • Difference between canvassing the conduct of the king and that of a judge—Note, - - - 104
    • IX. Instruments for crushing the Liberty of the Press.
      • § 1. Doctrines and rules, - - ib.
      • 2. 1st rule, concerning disesteem, 106
      • 3. 2d rule, concerning feelings, 107
      • 4. 3d rule, concerning unfitness in high situations, - - - 108
      • 5. 4th rule, concerning dislike, 109
      • 6. Terror, issuing from the darkness of the doctrines, - - 112
    • X. Want of adequate Obsequiousness morally impossible.
      • § 1. Obsequiousness found unavoidable by a veteran advocate, 114
      • Lord Ellenborough’s opinions on libel—Note, - - - ib.
      • 2. On the part of a trained juryman, unobsequiousness still more hopeless, - - - - - 115
    • XI. Such Juries worse than none.
      • § 1. Star-chamber preferable to a covertly pensioned jury, - ib.
      • Peculiar beauty of the Star-chamber court, - - - - ib.
      • 2. A jury-less judge preferable to a covertly pensioned jury, - - 116
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  • PART II.—STATE OF THE PACKING SYSTEM, Anno 1808.
    • Chap. I. Introduction.—Two reforming Shrievalties.
      • § 1. Turner and Skinner, anno 1783-1784, - - - - 118
      • 2. Phillips and X, anno 1807-8, 119
    • II. The Sheriff to the Lord Chief Baron—Notices.
      • § 1. Substance of the letter, - 121
      • 2. The letter in its own words, with observations, - - - ib.
      • Copious notes to ditto, 121 to 124
    • III. Lord Chief Baron to Sheriff Sir Richard Phillips—Avowries and Defences.
      • § 1. Substance of the letter, - 124
      • 2. The letter in its own words, - 125
      • Copious notes to ditto, 125 to 130
    • IV. Observations on the Lord Chief Baron’s Defences.
      • § 1. Insufficiency of the Defences in any case, - - - - 130
      • 2. Defence 1—Avoidance of vexation, 131
      • 3. Defence 2—Benefit of instruction, ib.
      • 4. Mischievous doctrines involved in this defence, - - - 132
      • 5. Acknowledged nothingness of the advantage, - - - ib.
      • 6. Short exposure of the supposed advantage, - - - 133
      • Benefit of an experienced, and thence of a permanent jury, - ib.
      • 7. Mischievousness of the doctrine further developed, - - 134
      • 8. Lawful improvement,—track it would have proceeded in, 135
      • Law, much more easily made by a judge than by King, Lords, and Commons, - - - ib.
    • V. Special Jury Corruption—Devices by which it was protected.
      • § 1. Device 1—Leaving to judges a covert ground for refusing to apply the act, - - - - 136
      • 2. Device 2—Rendering it unadvisable for a Sheriff to resist the packing, - - - - 138
      • No man can serve two masters;—a prudent man will serve the strongest, - - - - 139
      • 3. Device 3—Concealing the power of nomination given to the master-packer, - - - - ib.
      • 4. Learned advice given accordingly to Sheriff Phillips, - - 140
      • 5. Special jury system—just suspicion entertained of it, - ib.
      • 6. Harmony between the astutia of 1730, and do, of 1808, - 141
      • The line to which an English lawyer is accustomed, - - 142
    • VI. Learned advice from the Temple.
      • Quarrel between Mr. Canning and Lord Castlereagh—Note, - 143
    • VII. Advice from Lincoln’s Inn.
      • § 1. This letter, why introduced here, 146
      • Prophecy, as in the days of Balak and Balaam, become contagious, 147
      • 2. The letter, with annotations, - ib.
    • VIII. Maxims concerning Reform, deduced from the above letter.
      • § 1. The maxims themselves, - 152
      • 2. Corroborations from Lord Eldon’s Scotch Reform, - - - 153
    • IX. Transactions at the Remembrancer’s.
      • § 1. The transactions themselves, 155
      • 2. Instruction gained—definitions and maxims, - - - 156
  • PART III.—STATE OF THE PACKING SYSTEM, Anno 1809.
    • Chap. I. Commons’ Debate, 24th April, 1809.—Packing and Cutting.
      • § 1. Abuses touched upon—Packing and Cutting, - - - 157
      • 2. Packing, - - - - ib.
      • 3. Cutting, - - - - 158
    • II. Double Fee abuse, plain and embroidered.
      • § 1. Ground and embroidery explained, 160
      • 2. Double fee abuse, plain,—mere waste, - - - - ib.
      • 3. Embroidery—Corruption of jurors, contempt of parliament, 161
  • PART IV.—REMEDIES PROPOSED.
    • Chap. I. Humble proposal for restoring the Constitution in regard to Juries.
      • § 1. Introduction.—Necessity of a change in the system, - - 163
      • 2. Interests to be provided for—objects to be aimed at, - - 164
      • 3. Arrangements proposed:—1. In common-jury causes, mix gentlemen with yeomen, - - ib.
      • 4. Arrangements continued—2. Special juries, half and half, - 165
      • 5. Arrangements continued—3. Compensation money to Jurymen, 167
      • 6. Arrangements continued—4. Fund on which the compensation money shall be charged, - - 168
      • 7. Arrangements continued—5. Formation of the qualified list, viz. in other counties, &c. as well as in Middlesex, - - - 170
      • 8. Arrangements continued—6. Corruption by individuals, how prevented—No party should foreknow his jurymen, - - 172 Edition: current; Page: [64]
      • 9. Unanimity increases the aid afforded to corruption by foreknowledge, - - - - - 174
      • 10. Arrangements respecting form, viz. the form of the proposed new law, 175
    • II. State of Jury Package in Scotland, ib.
    • III. Humble Proposal for restoring the Authority of Parliament.
      • § 1. Unless the authority of parliament be vindicated, package cannot be abolished, - - - 176
      • 2. Contempt put upon the bill of rights by the Lord Chief Baron’s package, - - - - - 176
      • 3. Recent contempt of Howard’s act by the detention of acquitted prisoners, - - - - 178
      • 4. Parliamentary operations proposed, 180
      • 5. Retrospective censure, is it to be looked for? - - - 181
      • 6. No fresh acts requiring obedience to existing ones, - - 182
      • 7. Prospect of redress, - - 183

ADVERTISEMENT TO THE FIRST EDITION.

This work was printed many years ago.

Circumstances prevented its being at that time exposed to sale.

In regard to the author, all that need be said is—that it was not by him that it was then kept back; and that it is not by him, or at his instance, that it is now put forth.

If, on either accounts, it were desirable that the causes of its being thus long withheld should be brought to view, those causes would afford a striking illustration of the baneful influence of the principles and practices it is employed in unveiling, and presenting in their true colours.

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PART I.

CHAPTER I.: OCCASION OF THIS WORK.

§ 1.: Work on Libel Law commenced—Occasion of it.

What gave rise to this work is neither more nor less than a newspaper article—an article in the Times for the 20th of February 1809, and which, so far as it belongs to the present purpose, and consists of statements concerning matters of fact, is in these words:—

Speaking of a clamour against what is called the licentiousness of the press, the article goes on and says—“Such has been the dread inspired by this clamour, . . . . that of the persons now under prosecution, two have actually pleaded guilty to informations for ‘wilfully and maliciously slandering the British army,’ who never, till many days after their publication, saw or heard of the libel with which they were charged. . . . . . .

“The grand fountain of all this mischief,” it continues, “seems to be Major Hogan’s pamphlet . . . . .; for this very work there are now, or recently have been, we believe, six and twenty printers and publishers under prosecution. It was only from one of these that the original pamphlet sprung: the rest did no more than extract from or recommend it, and that upon the attested character of its author, who was no sooner known to have fled from his charge, than every one of them retracted his praise of the work, and was willing to maintain that the Duke of York’s character stood as fair as if this individual arraignment of it had not been published; yet is this so far from having produced a disposition to recede from punishing them, that though the informations were all of them filed last term, and might have been tried during the present, the objects of them are, without any assigned cause, to be kept in a harassing state of suspense over the present to the term ensuing.

“And what is the origin of these men’s offences? An error common to them with the prosecutor—a belief in the respectability of Major Hogan’s character, which was attested by no fewer or less men than Generals Fox, Floyd, Whyte, Dundas, Macdonald, Hall, Hay, Tilson, and Hamilton.

“Can there be a stronger palliation of error, than that the person erring should have been misled by a man of such reputation as the above; more especially when it is considered that the Duke of York was himself as much deceived as any one else by these testimonies in favour of Major Hogan? His Royal Highness, on the strength of them, believed him to be deserving of rank and elevation in the army, and therefore ‘noted him for promotion.’ Others, on the very same authority, supposed only that he might be entitled to common credit, and are, therefore, notwithstanding all their renunciations of that opinion, ‘noted for prosecution.’ ”

Thus far the newspaper. Facts, in their nature so notorious, seemed not likely to have been either invented, or so much as materially misrepresented. I looked out for contradiction or correction, but could hear of none. Whatever I could learn went in confirmation of the statements given as above.

On the subject of Libel Law, my general conception had been of some thirty or forty years’ standing: for example, that, in point of actual law, a libel is any paper in which he, who to the will adds the power of punishing for it, sees anything that he does not like: and, in point of public utility, that it was neither necessary nor fitting that any part of the rule of action, much less so important a one, should be lying in any such wild and barbarous state. Such on this subject became my opinion, almost as early as, on the subject of any part of the law, I could take upon me to have any: but those opinions would scarcely have found any expression, in public at least, and in any considerable detail, but for the incident above mentioned.

Seeing thus that, under the mask of a temporary occurrence, a battery had been opened by the enemies of the constitution upon the liberty of the press—that a fire of grape shot had already been commenced, and no fewer than six-and-twenty persons wounded by it at one discharge,—I felt myself urged by an irresistible impulse to summon up whatever strength I might have left; and howsoever impotent my own feeble efforts might prove, and at whatever personal hazard, to show the way at least how this battery might be spiked.

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1. Libel law as it stands, or rather as it floats, is incompatible with English liberties.

2. To destroy them utterly, and reduce the government to a despotism, it requires nothing but to be consistently and completely executed.

3. In this state it must remain, until either the constitution is so destroyed, or, by authority of the legislature, certain arrangements are made, the basis of which will be a definition in form, of the sort of thing called a libel, or something that shall be equivalent to it.

4. In a fixation of this sort, though there is some difficulty, there is no natural impossibility.

5. It is from the hand of parliament alone that this crying evil can receive a radical cure.

6. But, in the intelligence and fortitude of a jury, it may, in each instance, receive a momentary palliative.

7. Things being on this footing, in the case of a political libel, and (to fix conception) in the case of a libel for which Mr. Cobbett was convicted, and Mr. Justice Johnson suffered, had I been upon the jury, I should not have regarded it as consistent with my oath and duty to join in a verdict of guilty.

8. Applying to this use the power which, under the law of primeval barbarism, any one determined juryman has of subduing the eleven others, I should have taken care that no such verdict should be found.

9. By a few successive exertions of such fortitude, not only momentary and partial relief against particular oppression would be afforded in each particular instance,—

10. But, by a gentle and truly constitutional pressure, measures of complete and permanent relief might, as from the unjust judge in the parable, be extorted from the legislature.

Such were the opinions, in support of which I was preparing to submit to the public the considerations by which they had been produced: when, by another incident, this design, though it received a confirmation, and that no slight one, received at the same time a collateral turn, and, as to this part of it, a temporary stoppage.

§ 2.: That Work why postponed to this.

“Jurymen—special jurymen—are the persons you propose to address. But, whatever you had to say, it being to this effect, is there any the least chance that they would listen to you? The men whom, under the name of jurymen, special jurymen, you would, on any such occasion, have to deal with—are they in fact what they are said to be, and in general supposed to be? On any occasion, such as that in question, are they really free to follow the dictates of their own judgment? Can you see any the smallest probability of their doing so?” Such were the questions suggested to me by the publication of the late sheriff, Sir Richard Phillips—a document which, though it had been for some time in circulation, had not, till a considerable progress had been made in my own above-mentioned work, happened to fall into my hands. Such were the questions; and, to my unspeakable astonishment, no sooner were they formed than they received, each of them, to my apprehension, a decided negative.

In common with the generality of my countrymen, no particular incident having ever happened to point my attention to the subject, I had been used to annex in my mind to the word jury, the idea of a momentarily assembled body of men, composed of members determined by lot, or if by a nomination, a nomination not differing in effect from determination by lot,—the nomination performed afresh for the purpose of each cause, the list of the members of which the body was composed in each cause, changing perpetually as between cause and cause.

In this particular I had indeed understood the term special jury to be expressive of some difference: but a difference by means of which, the advantage attached to a fortuitous assemblage being preserved, further advantage, resulting from a sort of reciprocal choice as between party and party, had, by the matured sagacity of modern times, been super-added.

In common with such others of my countrymen, whose education has conducted them through the ordinary paths of history, I had read of a species of judicial abuse, which, under the name of packing, had on this or that occasion broken out in former times, and in particular in the profligate and arbitrary reigns of the two last Stuarts.

My astonishment has not oftentimes been greater than it became, when, upon looking into the book for which, as above, the public is indebted to the late shrievalty of Sir Richard Phillips, I found that this practice called packing, a word which, when thus applied, had never presented itself to my mind but in the character of the denomination of a state crime—nor that exemplified but rarely, and under a disastrous state of things long since past—had been moulded into a system, had become an established practice—a sort of practice which by the quality of the practitioners has, as ship-money had once, acquired the force of law; and that in that character it had found, in the person of the chief judge of one of the three great common-law courts, not only an agent, perhaps an author to avow it, but moreover a champion to defend it.

For some time I could scarce give credit to my own eyes. Am I indeed awake?—is not this a dream?—What century is this?—can it be the 19th?—is it not the 17th?—Who Edition: current; Page: [67] reigns now?—can it be a Brunswick?—is it not a Stuart king come, according to the prophetic and once loyal hymn, “come to his own again?

It is but too true. Under the name of a jury—under the name even of that supposed improved species of jury, a special jury—we have, in fact, avowedly, in that court in which most use is made of special juries, and at pleasure in the only other judicatory in the corruption of which the servants of the crown, and their adherents, can, as such, have any special interest—a standing body of assessors, instruments tenanted in common by the leading members of administration, by the judges, and by the other crown-lawyers—troops enlisted, trained, and paid by the crown-lawyers—liable to be cashiered, each of them, at any time, and without a word of explanation, each of them at the instance of any of the above indefinite multitude of inspectors, as well as by the hand of the recruiting officer who enlisted them, and they know not who besides—tools, in effect, of the very power to which in pretence and appearance they are a check.

Great would be the error, if it were supposed that, so far as concerns the security afforded by juries, the higher criminal cases excepted, we are, under this special jury system, no worse off than our ancestors were in the time of the two last Stuarts. Package of juries was in those times no more than an effort of casual violence and passion, losing more by the general irritation it produced, than by the particular advantage of the moment it could gain. It is now, as will be seen, become a regular, a quietly established, and quietly suffered system. Not only is the yoke already about our necks; but our necks are already fashioned to it.

As to the title of this work, Elements of the Art of Packing, it is not a mere jest. In the bringing of the system to its present state, no small degree of ingenuity, it will be seen, has been expended; nor, to the present purpose, could the true nature of it have been sufficiently displayed, without considerable labour—in short, without a pretty ample course of development—applied to its objects, its effects, its motives, and its means.

In bringing into view this sinister species of art, the object of these pages is—to do what may be found capable of being done, by an obscure individual, towards putting an end to the exercise of it: and the more thoroughly the processes employed in it are brought to light, the more imperious will the considerations be seen to be, which call for the abolition of it.

By the abolition of special juries, if complete, and in point of local range rendered co-extensive with the whole kingdom, a sort of gap might appear to be left in the system of jury trial: on what principles this gap may be most advantageously filled up, will be matter of inquiry at the conclusion of the work.

CHAPTER II.: JURIES—THEIR USE AS A CHECK TO JUDGES.

Of the functions exercised by the body of unlearned assessors, termed jurors or jurymen, the original intention, as well as experienced use, seems to be universally agreed, as well as understood, to be—the serving as a check upon the power of the learned and experienced judge or judges, under whose direction, or guidance at least, they have to act. In name, the decision pronounced in each cause—that decision at least to which the name of verdict is given, and in which not only the question of fact is decided upon, but a decision on the question of law (except in the particular case of a special verdict) is involved, is ascribed to them, as if it were theirs alone: but, besides the power of sending the cause to a new trial before another jury, the effect of the power exercised by the professional judges is upon the whole so great, (the verdict having in no instance any effect until it be followed by a corresponding decision distinguished by the name of the judgment, the formation of which depends altogether on the professional part of the compound judicatory)—that a conception nearer to the truth will be formed, by considering the main or principal power as in the hands of the judge, that of the jury serving as a check to his power, than by considering the principal power in the hands of the jury, that of the judge serving as a check to theirs.

That, of the unlearned body so designed to operate as a check, the members ought, so far as concerns the exercise of the functions belonging to their body, to be in a state of independence—of independence as perfect as possible—is a proposition included in the very denomination of a check. To deny the truth of it, is to utter a contradiction in terms. To say that there ought not to be any such independence, is the same thing as to say that there ought not to be any such check.

In appearance, this sort of independence is, in modern practice, everywhere, in every part of the field of jury-trial, actually preserved. That which, on the occasion of each trial, the judge or judges, who constitute the professional part of the mixt judicatory, have power—say, for shortness, the judge has power—to do, is to compel the non-professional part, the jury, to pronounce a decision, termed its verdict: that which he has not the power to do, is to determine what that verdict shall be.

Great, however, as is the power of the judge, in every case, over the ultimate result of the cause, yet, so far as concerns the Edition: current; Page: [68] decision pronounced, or supposed to be pronounced, by the jury, it applies more directly and certainly to the prevention of a verdict contrary to his wishes,* than to the obtaining at their hands a verdict conformable to his wishes.

When, therefore, in pursuance of a sinister interest, in whatsoever bosom it may have happened to it to originate,—his own, for example, that of the king, or that of any servant of the king’s in any other department of the state, it has come to be an object with a judge to obtain at the hands of a jury a verdict in any way contrary to justice, a necessary endeavour has been to obtain a jury, so composed, as that the verdict pronounced by them may be depended upon as about to be conformable to his wishes: to give, in a word, to the judgment, which he has it in his wish and intention to pronounce, the appearance of being the proper and necessary result of an antecedent decision, which, under the appropriate name of a verdict, the jury have, by the mouth of their foreman, pronounced, or at least been considered as having pronounced.

If, in consequence of any sinister influence exercised over their faculties by the judge, a verdict, different from what would otherwise have been pronounced by them, has been pronounced, that influence will have assumed a very different character, and have been produced by causes of a very different description, according as it is to the understanding or the will that in each bosom it has applied itself.

To the understanding of a juryman, as of any other man, though influences, which, being unfavourable to justice, may be termed sinister, are liable to apply themselves from other quarters, yet so far as it has happened to any such influence to have been applied by any act of the judge, it is only by his understanding—by the application of his relatively stronger understanding to their relatively weaker understandings, that it can have been applied: in a word, it can only have been the influence of understanding on, or over, understanding.

When it is to the will of the juryman that any sinister influence acting in a sinister direction has been applied by the judge, it is by the will of the judge that it has been applied: it has been the influence of will on, or over, will.

In so far as the prescriptions of duty, the dictates of probity, are taken by the juryman for the rule of his conduct, no other will is by his will suffered to exercise any influence on it: his will takes for its guidance the dictates of understanding purely: of his own understanding, if it feels itself strong enough: if not, of some other understanding, on the relative strength of which (relation being had to the question in hand) its reliance is more assured.

To the dictates, therefore, of any other will, the will of a juryman, as of any other judge (the lawfully declared will of some lawful superior alone excepted, for which, in the case of the juryman, there is no place,) cannot so much as listen, but at the expense of probity. From whatsoever source it happens to it to flow—whether from the will of the judge, or any other will—the influence, or, as in this case it is styled, the temptation, to the assaults of which the probity of the individual (in the present case the juryman) stands exposed, will apply itself in one or other of two shapes: in the shape of evil, viz. ill-applied punishment, working by intimidation; in the shape of good, viz. ill-applied reward, working by corruption.

Against these two opposite dangers, provision was made in the principles which presided over the original organization and mode of procedure that took place in the case of these singularly-constituted judicatories, or rather component parts of judicatories.

Against undue intimidation, they received for their protection, in the first place, exemption from any infliction which, avowedly and under the name of punishment, might otherwise have been applied to any of them Edition: current; Page: [69] separately* by the arbitrary power of the judge; in the next place (being that without which the other would have been of little value,) the veil of secresy, to preserve to them, during their conferences, the faculty, and (to render it more effectual) the obligation, of keeping themselves during their conferences, out of the reach of his observation: and not of his only, but of that of all other men, and especially all other men in power, in whose enmity they might be apt to behold a source of danger.

Against corruption, the principle employed was that of continual change: no person being continued in the exercise of that function for any length of time: that so neither the seductive artifices of the judge, their natural tempter, who in their power had before his eyes a force constantly antagonizing with his own, might have time to mould into undue obsequiousness the weakness of their minds; nor the casual tempter—the party who, in the event of his obtaining anywhere a sufficiently steady view of a future juryman, against whose probity his operations might be directed with a sufficient prospect of success, might find himself disposed to apply the opportunity to any such sinister use.

CHAPTER III.: THE CHECK HOW DONE AWAY BY INFLUENCE.

§ 1.: Checks are ever odious to all persons checked.

To the welfare of the governed—of men considered as men subject to power—it is highly conducive at least, if not (as under the British and other mixed or limited governments, men are apt to say) altogether necessary, that in whatsoever hands power be lodged, checks to it, in some shape or other, should, throughout the whole field of its exercise, be applying themselves: and upon the supposition that the good which, in the shape of security against misrule, is thus produced by the check, is not exceeded by the evil produced by the defalcation made by it from the quantity of power necessary to enable the holder of the power to render, in the highest degree of perfection, the service expected at his hands, the utility of the check will hardly find any person to dispute it.

But whatsoever be their utility, relation being had to the interests of the people considered as subject to power: to the hands by which the power is holden, the sensation produced by anything which acts upon them in the character of a check, never has been, nor ever can be, otherwise than unpleasant.

How it happened that, in England, the operations of the king’s ever dependent instruments, the official judges (not to speak of the equally dependent instruments of his imperfectly subjected subordinates, the great barons) found themselves, in the infancy of the constitution, incumbered, and to so great an extent, by the presence and interference of a determinate number of unofficial assessors, still more ignorant than themselves; while, in the other part of the same island, the incumbrance was confined to the criminal division of the field of law, and even there to the upper parts of the ground; and while, on the continent, either no such incumbrance was ever known, or was at a very early period got rid of; these are among those points of legal history, the obscurity of which seems to have given them up beyond redemption to the arbitrary dominion of conjecture.

Thus much however appears with tolerable distinctness; viz. that, over a great part, if not the whole of that field, over which the jurisdiction of a limited and even fixt number of assessors, under the denomination of jurymen (petty jurymen,) extends itself, the sort of function now exercised by them was exercised by an unlimited and usually much larger number of the inhabitants of the district in question under the name of freeholders: by which denomination were distinguished the whole of that comparatively small number of persons whose interests, according to the notions moral and legal of that time, had any claim to notice: and that, of this larger and imperfectly determinate body, the part now called a jury, was a sort of select committee, gradually and by general consent, the result of general convenience, substituted to the ever fluctuating and unwieldy whole.

But though, in one shape or other, the incumbrance has, from the earliest days of the existing constitution, been clinging to the shoulders of the official judge, yet, in whatsoever shape it clung, it could not have been otherwise than a troublesome one.

To the free exercise of his power the obstruction given by it is sufficiently obvious: for, so often, and in such proportion, as he found it necessary to give effect to a will on their part, which, howsoever expressed, differed ultimately from his own wishes, so often, and in the same proportion, was his power converted into impotence.

Supposing even his will to have been in every instance ultimately and completely prevalent, and, not withstanding the incumbrance, his power thus far unimpaired, even thus, on comparing his situation with that of a judge the freedom of whose actions is unrestrained by any such incumbrance, it will be manifest enough, that though his power were ever so entire, one effect, inseparably attached to the nature of this incumbrance, is—to afford, in Edition: current; Page: [70] one way or other, perpetual disturbance to his ease. All their desire is to shape their wills to his, and for that purpose to know what it is. Be it so. Yet to this purpose it may be necessary for him to make them know what it is; and simple as it may be, to impress into their minds this article of knowledge will, every now and then, require on his part, one of those operations which cannot always be performed without more or less disturbance to the operator’s ease.

On the other hand, suppose on their parts any reluctance towards the adoption of his will, argument, in some shape or other, would on his part be necessary to the surmounting of that reluctance; and so much argument, so much time and trouble consumed, so much disturbance given to his ease. Let there even be no reluctance opposed to his will, yet, if in their conceptions there should be any difficulty in comprehending it, still, to the removing or endeavouring to remove any such difficulty, explanation, in some shape or other, would be necessary: more consumption of time and trouble; more disturbance given to ease.

But to a man in power, it neither then was, nor to this time is, no, nor ever will be, natural to submit readily to any such limitation to his power as he can commodiously get rid of: it neither then was, now is, nor ever will be, natural to him, to suffer his own ease to remain exposed to any disturbance, from which he can conveniently keep it clear. To keep it to a certain degree habitually clear of disturbance, may, from time to time, cost him more and more labour, giving to his ease more and more disturbance. But, be his expectations of neat profit, in that valuable shape, verified, or not, by the event, his exertions will not the less truly have had for their motive, the love of ease.

On both these accounts, therefore, and in whichever of the two shapes he found the weight of this body of assessors pressing upon him, the endeavours of the judge to shake off or lighten the incumbrance cannot but have been coeval with its existence.

In the character of a sinister motive, becoming, in the bosom of the judge, an efficient cause of injustice, the love of ease seems hitherto to have almost escaped notice. But it has not been the less efficient; and of its efficiency exemplification but too extensive will meet us as we advance.

§ 2.: Judges’ Defences against Checks—Corruption and Deception.

Henceforward let us suppose the use of juries firmly established: and of the part originally acted by the promiscuous assembly to which this select committee succeeded, all distinct remembrance, as well as desire, obliterated: obliterated by this primæval Grenville act, of which the record is no where to be found.

For securing on the part of this select body of assessors, whose office was to keep a check upon his will, a subservience as constant and prompt as possible to that will, thereby impairing as far as possible the use and efficacy of that check, three possible instruments, as above brought to view, were afforded by the nature of the case: viz. intimidation, corruption, and deception: for such is the name that may with propriety be given to the influence of understanding over understanding, as often, and in proportion as the exercise of it is recognised as operating to the prejudice of justice.

As to intimidation, in the character of an instrument of influence applicable to the purpose here in question, it must, from the very first, have been too plainly incompatible with the acknowledged constitution of this compound judicatory, and too insupportable to the feelings of the people, to be in anything like constant or even frequent use.*

Of punishment applied to this sinister purpose by the sole power of the judge, in the shape of pecuniary fine for instance, examples seem to have been not altogether wanting. But, forasmuch as such a practice could not have been permanently established, without the utter destruction of the power of juries, the existence of that power is a sufficient proof, that of that suffering, though applied under the name of punishment, and by judicial hands, the infliction could never have been considered in any other light than that of a casual act, committed under the spur of extraordinary irritation, by illegal violence.

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Corruption, the work of will operating upon will, and deception, operating by the influence of understanding over understanding, were therefore the only instruments affording any promise of being regularly and steadily applicable to this sinister service: viz. the securing of undue obsequiousness on the part of juries.

§ 3.: Corruption—Modes of applying it.

In regard to corruption, the standing problem was, and is, so to order matters, that, on each given occasion in which it may happen to the judge to take on any account an interest in the verdict of the jury, it shall depend upon his will, with the surest effect, and with the least trouble possible, to mould it to his own desire.

To this purpose, on the occasion of each verdict, the concurrence of two circumstances was, and is, necessary:—1. That, in the event of their finding themselves in the situation requisite (viz. that of inhabitants of a jury-box) there should exist a sufficient number of persons disposed, no matter by what causes, to manifest the sort of obsequiousness requisite; 2. That matters should so have been ordered, that in that requisite situation the persons so disposed should in each instance be to be found.

There are two courses or orders of proceeding, in either of which this supposed unjust, but supposed desired result is capable of being produced:—1. Finding out persons in whose instance the requisite disposition is already formed, and thereupon placing them in the situation requisite; 2. Going to work with a set of persons already stationed in the situation requisite, and to the persons, so situated, giving the disposition requisite.

The first of these two courses is that which, having been invented in the time of our ancestors, in a somewhat distant age, has from them received the name of packing:—a name which, from the application at that time but too frequently made of the practice, and thence habitually apprehended from it, has acquired a dyslogistic tinge: serving at present to express, not merely the practice itself, but the sentiment of disapprobation excited by the idea of it, and thus, by the principle of association, attached to it.

Of the two courses, this ancient one is evidently by far the most simple.

In the other may be seen an example of a degree of refinement reserved for modern times:—“A number of persons whose dispositions, in regard to the subject in question, are as yet unformed or unknown, being collected—required to generate in their breasts the disposition requisite.” Such is the problem, the solution of which was necessary to the pursuing of this second of the two courses. And, with what success it has been accomplished, will ere long, it is supposed, be not indistinctly visible.

For this purpose, the following process stands alike approved by theory and experience:—

Into the situation in question (it being a situation conferring power—legal power) cause to be placed the number of persons requisite (they being provided with the requisite legal qualifications)—you possessing in your hands, to a certain extent, the faculty of influencing their interest or welfare (that is, producing in their respective bosoms the sensation of pain or pleasure, or the eventual absence of either)—and no preponderant force acting on the same bosoms in an opposite direction: these things being done, the exercise of that power is thereafter at your command: and this, whatsoever be the name given to the act of power so exercised—such as verdict, judgment, decree, sentence, vote, resolution, statute, law.

In the science of psychological or moral dynamics, of which political is one branch, the above proposition, though never yet perhaps reduced to any scientific form of words, may be stated as a fundamental axiom: and among public men, under whatsoever degree of incapacity labouring in other respects, no man was ever yet found to any such degree weak and incapable, as not to be sufficiently sensible of the truth of it.

A man may receive his ten, twenty, thirty, any number of thousand pounds a-year, on pretence of his occupying a writing clerk’s place, and this without being any more able than he is willing to do the duties of that place—and yet be no less fully and adequately impressed with the truth of the above proposition, long-winded as it is, than Bacon was, and accordingly not only act, but get up and speak, according to his mode of speaking, in exact conformity and consequence: the orator, without parade or pedantic display of hardworded Edition: current; Page: [72] science, acting psychological dynamics all the while, and to no less perfection, nor, if told of it, less perhaps to his surprise, than Monsieur Jourdan, when upon being thereof informed by his preceptor, he found himself talking prose.

For effecting the solution in question by the application of the above axiom or rule, the simplest and most elegant of all modes which hath as yet been invented—perhaps it may be added, which the science itself admits of—is—that which you are enabled to put in practice, when the functions attached to the situation being, by a mass composed of the matter of wealth or other objects of desire (instruments or efficient cause of pleasure of any sort at command, according to each man’s taste,) worked up into a compound of an agreeable flavour, the continuance of the person in question in the situation which enables him to feed upon it, has been made dependent on your will. So long as he continues in the situation, with such his allowance in his hand, he will continue to feed upon it in his heart—if not with thanksgiving for having been put into the situation—at any rate, what is most to the purpose, with fear of being put out of it, in the event of his comporting himself otherwise than as expected.

Suppose, for example, the situation of a juryman thus at the same time dulcified, and (saving dismissal) fixed: the power of dismissal, howsoever disguised (and the more effectually disguised the better,) being at the same time in your hands: upon the very face of this statement it is evident, that (barring the accident of opposite and preponderant force as above mentioned) the verdict of the jury, so far as depends upon that juryman, is altogether at your command.*

In this mode of solution, a necessary step, we see, is the placing the person in question in a situation in which he is exposed to the action of the efficient cause of influence: viz. the matter, the ever pliant and ductile matter, which, in your plastic hands, becomes the matter of reward or the matter of punishment, according as he behaves himself. But, to the situation, as above described, permanence is necessary: and this—partly because without a certain degree of permanence, the situation would not possess sufficient value, nor consequently the fear of losing it act on his mind in the character of an efficient cause of influence with a sufficient degree of force: partly because the correspondent disposition—viz. a disposition duly prepared to yield to the influence—the obsequiousness, in a word—may not always be capable of being produced in an instant, as in the case of casting or stamping, but may now and then require some length of time for the production of it, as in the case of modelling or sculpture.

Here then we see the difference between the ancient and the modern contrivance for nullifying checks, and producing acceptable verdicts. In the ancient mode, it was necessary that, in the instance of each juryman, the disposition to obsequiousness should be ready formed. On the other hand, wherever this condition could be, and was fulfilled, the business was the work but of an instant, nor was any application of influence necessary to the accomplishment of it: in the modern mode it is not necessary, that the disposition to obsequiousness should, in the first instance, be already, as in the ancient mode, completely formed: nor even that, at that period, it should, in any degree, have existence; but what is necessary is, on the part of the situation in question, a considerable degree of permanence: understand always eventual and defeasible permanence.

The two modes stand thus distinguished by the two different principles, on which their efficiency respectively depend:—the ancient mode, by the principle of choice—of selection—or, to call it by its established and proper name, the principle of package—simple package—package toties quoties, and without need of permanence:—the modern mode, by the principle of permanence:—thence package, once for all, and with the benefit of permanence.

In the last preceding chapter, mention was made of the principle of mutation, or continual change of persons, as one of the expedients employed in the original constitution of juries, for enabling them to act with effect in the character in which they were destined to act, viz. that of a check upon the power of the judge; and, in that view, for securing them against any sinister influence by which the efficiency of the check, so to be applied, might come to be impaired. The principle there mentioned, under the name of the principle of permanence, consists exactly, we see, in the absence or removal of that tutelary and fundamental principle.

The principle of permanence being thus palpably opposite to one of the essential and acknowldged principles of jury trial, to have established it directly and avowedly would have been plainly impracticable. For each court, for instance, a determinate number of jurymen, consisting of the number (twelve) necessary to compose a jury, with or without a few supernumeraries, added for provision against accidents—to each juryman his situation, whether by salary or fees, rendered Edition: current; Page: [73] a desirable one—he, at the same time, pronounced removeable—avowedly removeable—at the pleasure of the judge or some other dependent of the crown;—on any such plan, even in the most uninformed and incurious age, the continuing to the institution the name of jury would scarcely have sufficed to reconcile men to an arrangement so palpably perverse—thus destructive of its manifest and manifestly intended nature.

When a determination to subvert, as far as it might be found practicable and convenient, this part of the constitution, had been taken, whatsoever were the contrivance employed, it was seen to be altogether necessary there should be some disguise or other put upon it. The business was neither to be attempted openly, nor all at once.

Four distinguishable conditions were seen to be necessary:—1. Power of nomination virtually in the hands of the judge; 2. Emolument, sufficient in magnitude, and thence in ordinary duration, to render the situation an agreeable one, and thence the loss of it an object of apprehension; 3. Power of amotion, viz. of removing a man from that situation, also virtually in the hands of the judge; 4. In each case, the design so enveloped, as not to be seen through. All these points were accordingly accomplished.

One point more required to be attended to. To have attempted to apply any such plan of deceit to all cases, and all at once, would have been incompatible with the success of it:—for, the effect being produced in every instance, the efficient principles would have burst through the disguise.

Applied to all cases in which it was likely that the judge, or any of the servants of the crown, his confederates, would have any special interest, it would be sufficient to their purpose. To the object thus limited, the plan was accordingly confined: and thus far it has been accordingly found to be but too practicable to carry the design into effect, and without prejudice to the disguise.

Of all these several desiderata, the accomplishment will now be brought to view, as having been effected in and by the constitution of the sort of body termed a special jury: but, for the purpose of this exhibition, a separate chapter will be requisite.

Compared with that mode, in which the principle employed is no other than that of simple package, nobody, it is supposed, can be at a loss to see how prodigious the advantage is which is gained by calling in the principle of permanence. In the way of simple package, extempore package, everything requires to be done afresh each time: each time you have to hunt out for your men: and whereabouts are you, if so it be that at the moment none that will suit you are to be found?

Apply the principle of permanence, there they are—your men—always at hand: and the longer you have had them where they are, the surer of them, on each occasion, you may be.

Juries, packed in the old mode, are like wood-pigeons, for which the woods must be hunted ere they be in a state of requisition for the cook; or like those wild horses which a Spanish Creole has to scamper after in the plains ere he is in readiness to take his ride. Juries packed in what will be seen to be the new mode, packed with the advantage of the principle of permanence, are like pigeons taken out of a dove-house, or like those well-broken geldings which an Englishman keeps in his stable.

In juries, in a word, permanence is exactly what it is in armies: it is the work of the same policy in both cases. It was, when as yet there were no standing armies, that the coarse and precarious operation of extempore package, packing without the aid of permanence, was employed in the case of juries. As our armies acquired their stability, so did our juries: and now that, under the pressure of national necessity, our armies, strengthened by that principle, have swelled to so unexampled a magnitude; now it is, as will be seen, that without any such necessity, without any other more cogent cause than convenience, numbers in juries not being susceptible of increase, this part of the establishment has received its improvement, and that to the degree of perfection that will be seen in the shape of permanence: say permanence, but never without remembering the increased facilities it affords for package.

Convenience, and nothing more. But what more was needful? For it was the convenience, as we shall see, of great characters, in those high situations, in which, in the convenience of the individual, there is apt to be more of cogency than in the necessity of nations.

At the outset, packing having been practised, when as yet there was in juries no such thing as permanence, the principle of package came unavoidably to be spoken of antecedently, and thus far in contradistinction to the principle of permanence. But now, at this stage of the inquiry, it will be sufficiently apparent (it is hoped) that of these two principles one is included in the other: and that, by the principle of permanence as applied to juries, is to be understood permanence and package together: package with the benefit of permanence, and permanence for the purpose of package.

§ 4.: Deception—Modes of applying it—Instruments for the application of it.

Corruption being the instrument principally employed on the occasion which gave rise to Edition: current; Page: [74] this little treatise, deception, an instrument not more in use on this occasion than on any other; and the part here played by it no more than a subordinate one—a very slight mention of it will be sufficient here. Not that the mention of it will even here be altogether out of place, corruption having among its effects that of disposing a man not only to deceive others, but, moreover in the first place, and for the better quieting of his own conscience, to deceive himself.

On the present occasion, so far as deception is concerned, the problem stands thus:—In cases where, if the conception entertained of the case by the jury were adequate, viz. complete and correct, their will, as declared by their verdict, would be more or less apt to run counter to the will of the judge, so to order matters, as that, by means of some want of completeness or correctness, viz. on the part of the conception entertained by them of that case, it may happen to their will to coincide with that of the judge.

There are two ways, in either of which an effect thus desirable may be brought about:

One is, by causing them to have a will, and that will exactly the same with that of the judge.

The other is, by causing them not to have a will, viz. of their own forming: of which state of mind the necessary consequence will be their adopting, without more ado, whatsoever will may come to be presented to them for that purpose by the judge.

Of these two modes, this latter mode is by far the most advantageous one. To the success of the former, the creative or special, it is necessary that fresh labour should be bestowed upon the subject on the occasion of every cause: by the other, the preventive or general mode, the business is done once for all; and, without any fresh expense in the article of labour, a perpetually renewed harvest of success is reaped on the occasion of each individual cause: in the one case, the business is carried on in the retail, in the other, in the wholesale line.

In the case of corruption, the will of the party corrupted—here the jury—being formed by the will of the party by whom or for whose benefit the matter of corruption is applied; the state of the intellectual faculty is immaterial, nor is any sort of debility in it necessary to the production of the effect here supposed to be desired.

But where, in a question of fact or law, a will of his own is to be formed by a man, who having no natural interest at all in the business, has no interest at all in it, unless by means of corruption he has a factitious one, he cannot have a will, other than one to the formation of which the use of the understanding is necessary: and thus it is, that, if so it be that his own understanding is not, with relation to the matter in hand, in a state fit for use, that is, capable of being applied to use, he is not only content but glad to borrow one of the judge, whose care it is that, under the cover of an act of the understanding, a will of his own, more or less nicely folded up, shall be inclosed.

By the understanding of a person placed in the situation of judge, an influence will, of course, be exercised over the understanding of every person standing in any such situation as that of juryman: and this influence being on all occasions applicable to all purposes good and bad, is thereby applicable to all bad ones.

On this occasion, the part which is open for deception to act is the giving to this influence a degree of strength beyond what properly belongs to it—such a degree of strength as will enable it, upon occasion, on the spur of sinister interest or passion, to act with advantage in a direction opposite to that of the dictates of justice.

In another work (Scotch Reform, Letter I.) it has already been shown how completely opposite the interest of all judges, commonly called by that name, as well as of all other men of law, has, throughout their whole field of action, all along been, and still continues to be, to the duty of judges, which is as much as to say to the interest of the people, in respect of the ends of justice: not only this fact, but the cause of it, viz. an ill-chosen mode of remuneration, has in that same work been already brought to view. Of this opposition the cause and influence having as yet in a very small, if in any degree been understood, the whole course of action of these functionaries has consequently been a course of deception: of deception practised throughout that whole course of action, on all sorts of occasions, and upon all sorts of persons: upon individuals at large, in their character of suitors: upon jurors, in particular, in their character of jurors.

Of the two modes of deception, special and general, the general has already been shown to be in every respect by far the most convenient with reference to the present purpose. The general consists in forcing the people with whom you have to do, to borrow your understanding, and under the cover of it, your will, by preventing them from having any understanding fit for use, and thence from having any will applicable to the purpose.

On this occasion the system of deception divides itself into two branches—the first consists in rendering the subject—whatever it be, law, religion, anything—in the present instance law, as incomprehensible, or (what is the perfection of incomprehensibility) as uncognoscible as possible to all whom you have to deal with, and that to their own conviction and satisfaction.

The other consists in doing whatsoever the nature of the case admits of, towards raising Edition: current; Page: [75] in their minds, to as high a pitch as possible, the estimate formed by them respectively of the correctness and completeness of the knowledge possessed by yourself in relation to the same subject.

To the first end contribute, jargon, nonsense, absurdity, surplusage, needless complication, falsehood—every kind of intellectual nuisance, in every imaginable form: and this the higher in degree and greater in quantity the better, without any other restriction than what may be imposed by whatever caution may be necessary to enable you to avoid counteracting the other object last above mentioned.

Of these two branches of the art of deception, the first-mentioned may be termed the depressive or humiliative; the other the self-exaltative.

The instruments applying or applicable to the purpose of deception, as above distinguished, may be the more readily comprehended by being distinguished into two classes. Those of the one may be termed the incorporeal instruments of deception: and though, upon a principle of division and nomenclature already attached to the subject, a complete enumeration of them would perhaps be scarce practicable, a tolerably sufficient sample of them has just been given; viz. in the words jargon, nonsense, absurdity, and so forth.

For the designation of the instruments of the other class of these instruments, the term corporeal will of course present itself to the mind of every man who has read Blackstone.

Under the class of corporeal instruments may be comprehended, besides the posts or other uprights by which the level of the bench is elevated above that of the jury-box, the peculiar habiliments by which the profession and the office together stand distinguished: outward and visible signs of the inward and invisible graces and virtues, intellectual and moral, that dwell within. These last, in consideration of the incalculable influence which they are found to exert on the understanding of jurors and others, through the medium of the imagination, may be moreover termed instruments of fascination: and as, among heathen statuaries, the circumstance of a man’s having officiated with his own hands in the character of his own god-maker was not found to diminish his devotion towards such his god, so if, among the inhabitants of the same jury-box, it should happen to the makers of the several instruments of fascination, viz. the furrier, the tailor, and the peruke-maker, to find themselves assembled and met together, there seems no reason to suppose that, upon the minds of these several manufacturers, the influence of the several articles, in the character of instruments of fascination, would be less efficient than upon those of the other “good men and true,” their colleagues.

Of these corporeal instruments the importance is the greater, inasmuch as but for them, and the fascination produced by them, it seems not altogether easy to conceive how the first branch of the art should have been compatible with the second, and how the stock of jargon, nonsense, absurdity, and so forth, how abundant soever, should have been conducive to, or even compatible with, the design of raising, in the minds of the persons concerned, the idea of the stock of real knowledge possessed by those exalted characters by whom these incorporeal instruments of deception have ever been so liberally employed.

Both sorts of instruments, incorporeal as well as corporeal, may moreover, if not in a strictly legal sense, as savouring rather of the personalty than the realty, yet at any rate, to a common intent, be styled and entitled hereditaments.

In relation to the corporeal hereditaments, the instruments of fascination, two things ought, notwithstanding, to be observed: one is, that the fascination performed is performed by the intrinsic and independent virtue of the instruments themselves, and that to the bearer, nothing being on his part performed, or necessary to be performed, towards and in relation to the effect, no part of the effect ought to be ascribed or imputed: the other is, that were it not for the evil company they are connected with, viz. that of the incorporeal instruments above mentioned, and the evil purposes to which the whole company are so unhappily apt to be applied, the influence of these corporeal instruments, notwithstanding the name of fascination so incontestibly belonging to it, might well be salutary and beneficial upon the whole. It is only by the abuse, in so far as abuse is made of them, that they operate in the character of instruments of deception—the character in which they belong to the present purpose: and if these corporeal were separated from the incorporeal instruments and hereditaments above mentioned, viz. the jargon, nonsense, and so forth, the abuse of the corporeal ones would be separated from the use.

Of these several instruments of influence, to whatsoever purpose applied, that of deception or any other, the efficiency in that character will (it may be said) naturally be the same—nearly if not exactly the same, whether, in the constitution of the jury in question, the principle of permanence be or be not employed.

This may be admitted. One means of influence, however, there remains, coming under the head of influence of understanding on understanding, which is applicable with peculiar advantage to the purpose of deception, and which requires, as a necessary condition to its application, the application of the principle of permanence.

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When the judge and the jurymen become acquainted with each others’ persons, being in a state of habitual intercourse, a sort of connexion, though it be but in the way of sympathy, grows up between them: a friendship which, though it be of that kind which has been called a friendship of inequality, a friendship betwixt the superior and the inferior, betwixt wisdom and simplicity, is not, to this purpose at least, the less powerful and effective. A look of complacency, indicative of old acquaintance and mutual good understanding, descending, if ever the dignity of the judge finds itself reduced to descend to such benignity, from the heights of the bench upon the leading man in the jury-box, the bellwether is gained—the flock follow of course. A sort of compact forms itself, under and in virtue of which the man of learning engages to afford direction, the child of simplicity to follow it: this compact once formed, the presumption, which on any particular occasion should presume to think and act for itself, would be an act not only of temerity, but of revolt and perfidy.

CHAPTER IV.: SPECIAL JURIES, A SPECIAL ENGINE OF CORRUPTION.

§ 1.: The System briefly stated.

We have seen what expedients the nature of the case affords, for moulding juries into obsequiousness, principally by means of corruption: and thus divesting, as much as may be, of all reality, the appearance which they exhibit of a check to the arbitrary power of the judge.

We now come to speak of the instrument or engine, contrived for that purpose; applied to it, and to this day continuing to be applied to it, and with what disastrous success will be seen as we advance. This engine, in no small degree a complicated one, is no other than the sort of jury termed a special jury.

A special jury is so termed to distinguish it from a common jury: this last name being reserved for the designation of the only sort of jury which, till the invention of this special instrument of corruption, was in existence.

Above has been brought to view, in the character of a possible one, an arrangement, by means of which (bating such rare and casual exceptions as are liable to be now and then produced by the irregularities of the human mind) a body of men, be they who they may, may be brought into a state of constant and complete obsequiousness to the will of some person or persons (in the present instance the judge,) between whom and them the requisite sort of relation has, in the manner there indicated, been established. In the case of a special jury, this possible arrangement will be found to have been, and to remain to this day, completely realized.

As of the true and original jury, so of this impostrous modern substitute, the origin lies buried in obscurity. Human craft in every shape, and, in particular, in the shape of lawyer-craft—human-craft, like the mole, hides its ways from the light of day, and, as completely as possible, from human eyes.

The clearest view, as far as it goes, that we possess of this sort of jury, is that which is afforded to us by the statute-book: and, in the statute-book, antecedently to the year 1730, being the third year of the last reign, no mention of it is to be found. In a statute passed in that year (3 Geo. II. c. 25) the sort of jury in question is spoken of, in the way of reference, as a sort of tribunal actually in use:—finding it already in existence, all that the statute does with it is to regulate it.

In the way of amendment, this act was, in the course of the same reign, followed by four others or parts of others: viz. 4 Geo. II. c. 7, 6 Geo. II. c. 37; making perpetual 3 Geo. II. c. 25; 24 Geo. II. c. 18; 29 Geo. II. c. 19.*

In each judicatory (viz. in each of the three Westminster-hall jury-trial courts—King’s Bench, Common Pleas, and Exchequer,) in the hands of an officer of the court, the righthand man and dependent of the chief judge, Edition: current; Page: [77] this cluster of acts (to consider them together) found the effective nomination of these assessors, by whose power that of the judge was in appearance to continue checked. Such are the hands in which King, Lords, and Commons found the faculty of reducing to a shadow the controul supposed to be exercised by a jury: and in the same hands, under the direction of their learned and essentially treacherous guides, in these same hands it has been left.

In the hands of the agents of the parties, in crown causes, the solicitor of the crown, acting under the direction of other servants of the crown, his superiors, they found the faculty, and the practice, of giving to each special juryman a fee, to an amount altogether unlimited: whether it was or was not in their practice, or in their power, to keep back the fee, till after he had earnt it to their satisfaction, does not appear.

In one of these acts (24 Geo. II. c. 18, sec. 2,) reciting that “complaints are frequently made of the great and extravagant fees paid to jurymen under the authority of the said recited acts,” parliament did indeed attempt to limit this fee, viz. to the sum of a guinea: but with how little success may in due season be observed. (Part III. ch. 2,) This guinea, however, was not merely a guinea for each day of service, but a guinea for each cause tried in the compass of that day: and to the number of such causes there was no certain limit: nor therefore to the number of daily guineas.*

§ 2.: The Corruption briefly indicated.

Such, so far as could be exhibited by a rough outline, and upon a small scale, was and is the actual state of practice. Now, in respect of such matters as influence, corruption, and obsequiousness, let us, upon the same scale, observe the fruits and consequences.

By means of the magnitude of the fee, and the situation of the hands, on which, on the occasion of each individual cause, it was thus made to depend by what individuals this mass of emolument should be received, a regular corps had thus gradually and secretly been established—the members nominated in all cases by the dependent of the judge; that is, in effect, by the judge himself—paid in private causes by individuals, but in crown causes by the servants of the crown: a body of troops, taking its orders, in private causes, from the judge alone—in crown causes, also immediately from the judge, but in effect from the judge and the other servants of the crown in conjunction, according to any agreement which in each instance it happened to them to have made. And thus it is that, in a Westminster-hall court, in a crown cause, including almost all causes in which the members of government, as such, are liable to take any real interest—the fate of the defendant rests altogether in the hands of the dependent set of jurors thus picked out from the rest. So much as to the fact of the dependence: now as to the degree. Of the occupier of any lucrative situation; of the placeman who, by any formal notification, is liable to be at any time removed from his situation—removed by an officer, who himself is liable, in the same manner, to be dismissed by the king or any of his servants, the dependence is commonly considered as standing at the highest point in the scale of strict and perfect discipline. But a point still higher is occupied by the sort of dependence which, in the manner we have seen, has place in the case of a special juryman. For, by the formality of express dismission, the attention of the public mind is naturally, with a degree of force depending on existing circumstances, pointed to the incident; and in some cases, disapprobation from that quarter is in a greater or less degree liable to be incurred: but, in the case of a special juryman, let drop out of the list for lack of obsequiousness, the right hand of the official agent of corruption scarce knows the deed, the negative deed, thus committed by his left.

§ 3.: The System further developed.

Such is the general result. By a few explanations, the conception obtainable of this mystery of iniquity may be rendered more distinct and particular, though, to any practical purpose, the proof need scarcely, nor perhaps can it, be rendered more conclusive.

The choice made, as above, by the immediate instrument of the judge, is not absolutely Edition: current; Page: [78] without its limits; but, by the limits which it finds, no bar whatsoever, it will be seen, is opposed to such a choice as can ever fail to be fully adequate to every desirable purpose.

1. In the first place, forming the basis of all subsequent operations, comes what may be termed The qualified list.

On the foot of the primeval practice, settled before the distinction between common and special jurymen was devised, the members of the list which served as the general fund out of which jurymen were drawn for the purpose of each cause, were, and are, in each township, named by the constable of the township, on the supposition of their being possessed of certain pecuniary and other qualifications, fixed upon by law. By the sheriff of the county, these elementary lists were, and are, collected into one aggregate, which, as above, may be termed the qualified list—the common and special jury qualified list.

2. By the same hand, out of this list a selection is made of such persons as, under the clauses in the acts relative to special juries, are regarded as being provided with the special qualifications appointed by these acts. The minor and included list, thus formed, may be termed the special jury qualified list. The persons thus distinguished from their fellows, and by the distinction qualified for being, in the character of special jurymen, employed by the master, the judicial officer above mentioned, are in the constable’s books designated by the title of esquire.*

3. Among the members of this special jury qualified list, persons whose names are lying constantly before him, and with whose characters, their number being so much smaller (I speak of those for Middlesex, about 400) he is at least as well acquainted as the Chancellor of the Exchequer with those of the members of the House of Commons—this right-hand man of the judge, this master, this master packer, as he may be termed, chooses on the occasion, and for the purpose of each cause, 48. Of these 48, the list may be distinguished by the name of the gross occasional list.

4. From this gross occasional list, the agent of the party or parties on each side of the cause, has the power of discarding 12: which faculty (the agent having of course his fees for it) will, in the natural order of things, of course be exercised.§ But if, to this natural order of things, so on any occasion it should happen, that an exception should take place, then, and in such case, it is by the master packer that the defect is supplied, and the operation of discarding performed.

5. Be this as it may, of the remaining 24 is constituted what may be termed the reduced list.

Of each of these 24 the attendance is, or at least ought to be, required by the sheriff by a summons, issued in obedience to an order or precept, which contains the whole reduced list, and has been previously transmitted to him from the court.

6. The number actually serving on a jury being no more than 12, the object in view in summoning the 24 is to secure the appearance of half that number. Of those who, on any given occasion, actually make their appearance accordingly, the list may be termed the actually appearing or attending list.

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7. Be the number actually appearing what it may, the 12 whose names stand first upon the reduced list, are the 12 that serve. Of these the list may be termed the serving list.

If not so many as 12 make their appearance, then so many as do appear being put upon the serving list, the rest are taken from among such persons as happen to be in attendance in the character of common jurors.*

On the face of this statement, nobody surely can be at a loss to understand how nugatory the power of discarding, though allowed to both sides, is, in the character either of a bar, or so much as a check, to any sinister choice, which the right-hand man of the judge, the master packer, under all the sinister influence to which, in some cases, his principal stands exposed, may be disposed to make.

The whole 48 being alike at his devotion, alike the creatures of his choice, what matters it to him which of them are the twelve that serve?

8. Of all these several lists, though not as yet distinguished, any of them, by names, viz. neither by the above nor by any others in current use—the existence is neither unknown nor disavowed, nor so much as endeavoured to be concealed.

But another list, the existence of which, though it scarcely would be avowed, is not the less real, and to which suspicion has, it will be seen, already fastened a sort of nickname, is a list which, in the style of sober sadness, may be distinguished by the appellation of the select and secret qualified list. It is a list, composed of such members of the gross qualified list, as by the grand elector so often mentioned—the Talleyrand of the respective courts—are regarded as sure men: men who, being qualified for dependence, may accordingly be themselves depended upon; and from among whom, upon each occasion, the gross occasional list, required for that occasion, may be securely taken without fresh expense of thought.

§ 4.: The Corruption and Dependence developed.

These seven grand electors, have they, each of them, a separate list of this kind? or does one such list serve for them in common? The answer is among those mysteries which must, in a great degree, remain involved in their original darkness. What, as will hereafter be seen, is certain is, that in and for the use of the Exchequer, a list of this sort exists;—exists with or without a name: what will appear probable is, that if there be not a distinct list of this sort kept in and for the use of the King’s Bench, the Exchequer list is occasionally resorted to for King’s Bench service.

Of these secretly enlisted, and, though without words of command publicly delivered, not the less perfectly disciplined troops, the number is of course not known.

But so well is the nature of them known, that it has obtained for them a familiar name: the corps being termed, the Guinea Corps: the members of it collectively Guineamen: and, if taken separately, this or that one is familiarly spoken of as being concerned and interested in the Guinea trade.

Of the degree of dependence in which the situation places a man, no unapt token may be found, in the multitude of the persons whose desire of being placed in it is manifested within a given district, in a given length of time.

In 1808, number of persons, inhabitants of Middlesex, actually upon the qualified list, 1100.§ Number of those who in part of one year applied to be put upon that list, addressing their application to one of the sheriffs, Edition: current; Page: [80] under the erroneous notion of its being in his power to put them upon it, upwards of 100*—all spoken of by him by the description of “respectable persons”—not to speak of others.

Two other sources require here to be brought to view, from which the completeness and abjectness of dependence, and the correspondent arbitrariness of the correlative power, are capable of receiving increase:—1. The facility and security, with which the correspondent power created by such dependence is capable of being exercised; 2. The number of the persons, by any one of whom the power in question is, with that same degree of facility, capable of being exercised over the one dependent in question. On both these accounts may be seen, in the instance of the Guinea corps, a degree of dependence—in that of their secret rulers a degree of arbitrary power—such as it may not be easy to match in any other instance.

Consider, in the first place, the number and quality of the persons, in whom the dependent will be apt to view the arbiters of his fate. Visible and immediate possessors of this power, two—and two only: these will be, in the first instance, the master packer by whom the gross occasional list is formed—and, in a crown case, the crown solicitor by whom the candidate for a place in the serving list is liable to be discarded.

But these are not, either of them, persons by whom, in case of any sinister interest, the original sinister interest will naturally be possessed: it is from other persons behind the curtain—persons in quality and number unknown to the continually-employment-seeking and everlastingly-dependent guinea-man, that, in case of any such sinister interest, and correspondent notification of superior will, those ostensible and apparent officers will have taken their direction or their cue. In these unknown occupants of the region situated behind the curtain, the trembling guinea-man will behold so many phantoms, to the will of every one of which, so far as it can be guessed at, and to him presents itself as reconcilable with that of the rest, it will be necessary for him to shape his part in the verdict. Among half-a-dozen of these highseated spectres, to five, for example, the verdict he joins in may, in his conception, be matter of indifference. No matter: if to the remaining sixth it be matter of anxiety, the liberty of the guinea-man is as effectually killed by this single one, as it could have been by all six.

Meantime, neither with any of the phantoms behind the curtain, nor with either of the two masses of human flesh subsisting, is it possible for the guinea-man ever to come to any sort of explanation. With the right-hand man of the judge it is scarce possible, with the crown solicitor it is neither necessary nor natural, that he should ever have any sort of intercourse. His sin, the joining in a wrong verdict, is committed openly in the jury-box; his punishment—removal out of the select qualified list—will be inflicted in secret: yea, and so secret, as not to be at any determinate time made known even to the sinner himself. Offended powers inexorable, were it only because uncognoscible: repentance rendered utterly unavailing by the very nature of the case.

Think now of the facility and security, with which the correspondent power, created by this sort of dependence, may be, aye, and ever must be, exercised. Say rather, profited by, without being exercised. To powers that need never make their appearance, neither action, no, nor so much as existence, is necessary to the production of the most unreserved obedience: existence sufficient to the purpose is lent to them by the dependent’s fears. On the part of the invisible potentate, no previous mandamus, no lettres de jussion, are ever necessary: the effect is produced without an atom of responsibility in any such high quarter, in any the slightest shape.

How delightful, yes, even in comparison of what it is at present, would be the situation of a Chancellor of the Exchequer, were the corps under his command subject to an equally efficient mutiny law, and thence in a state of equally perfect discipline. No need of letters, no, nor so much as of hints or winks, suggestive of the moral duty of resignation. No Whitbreads, no Madoxes, to encounter: no votes of innocence to frame after confessions of guilt: no previous questions to move, and carry by main force. The thorns that pierce the well-compacted bench he sits upon would Edition: current; Page: [81] not then be so pungent, but that it might be “in the power even of money,” dross as it is (so there were but enough of it) to assuage the smart.

How perfect soever the discipline of this corps, I speak of the guinea corps, may be at present, its existence in any such degree of perfection cannot have been of any very ancient date. Point d’argent, point de Suisse. Before the situation was capable of being moulded into an instrument of corruption—an efficient cause of sure obsequiousness—it was necessary that a quantity of saccharine matter, sufficient for the dulcification of it, should have been secreted and combined with it. But, even at present, keen and numerous as we have seen the appetites to be that are excited by that matter, the quantity of it furnished in a year is no greater (I speak always of Middlesex) than that which is extracted from 200 causes.

At present, as already observed, the whole of the gross occasional list (48) being, on the occasion of each cause, chosen in the first instance by the master packer, all taken out of the select and secret list, with whose “connexions, &c.” he is so perfectly well acquainted;—in this regular and well-ordered state of things, which of them are left to constitute the reduced list (24,) of whom the 12 whose names stand first upon the appearing list will constitute the serving list, will, to him and his high-seated superiors, be, as already observed, matter of complete indifference. But at an early period of the special jury system, no such entire security could have been possessed. Of those with whose dispositions he was sufficiently acquainted, they being at the same time such on whom, if attending and serving, dependence might be placed, there might not be above a dozen of whose attendance he could be sure; and of the whole of this dozen, supposing the right of discarding exercised, he might find himself deprived. In such a state of things, the command of a verdict, even from special jurymen, seems to have been matter of anxiety: and though, when once established, the faculty of discarding could not, as it was thought, consistently with prudence, be absolutely taken away, yet what in this way was thought capable of being done, without a too complete removal of the mask, a too barefaced act of injustice, was done.

Accordingly, in the 3d of King William, anno 1690, Holt being Lord Chief-Justice of the King’s Bench, “a standing regulation,” if not at that time made, was at any rate found to be in existence:* a regulation whereby it was provided, that unless a special order were made for the purpose, giving to the parties on both sides, and consequently to the defendant, that faculty, it should not be exercised; but the nomination should be completed as well as begun, by the officer of the court, the subordinate of the then removeable and completely dependent judge.

Thus the ordinary course of practice at that time was—not to allow any such faculty; and it was only where, having been importuned for, it could not for shame be refused, that it was granted.

Throughout the system of technical practice, so universal is the practice of misrepresentation and deceit, that it is matter of continual uncertainty by what hand this or that branch of business is actually performed. Thus, in equity practice, of the mass of business stated in the books as being performed by the master, an indefinite and ever variable proportion is really performed by some clerk of his, the master knowing nothing of the matter. In any of these offices, intimate on any occasion a suspicion of anything not exactly correct, whether in the article of probity, attention, or capacity, your mouth is stopped at once by a reference to the dignity and character of the learned person, whose office is held nominally during good behaviour, virtually for life, and who, attired in such resplendent robes, takes, in the Court of Chancery, in Westminster-hall, his periodical seat by the side of the Lord High Chancellor himself; whereas in truth, on the occasion in question, the business was performed, the power exercised, a power over the property of suitors to any amount in point of importance, exercised—not by this learned person, but by some underling who is known to nobody, whose name appears nowhere, and who being there to day, may be gone to-morrow.

Thus in the case of the jury-packing business. In every of the five packing offices but one, the person by whom the business is done is, in the several books of practice above referred to, gravely stated as being the master: and, in each of those four instances, so it may be or may not be. But in one of them, viz. in the King’s Bench office, crown side, of the practice of which there was no account till so late as in the year 1805, the public happened to be favoured with one by Mr. Hands, the packing business, it appears (p. 10) is performed, Edition: current; Page: [82] formed, as it may happen, sometimes by the master sometimes by his clerk.

This being the case in a crown cause, a libel cause, for example, whosoever it may happen to, to see reason for wishing to make himself master of that useful article of knowledge, which, in the Exchequer, according to Mr. Edmunds, as above, persons concerned are so regularly solicitous to acquire, viz. information concerning the “connexions, &c.” of persons qualified for being special jurors, has his choice of two of these intelligence-offices, one of them inferior in dignity, and thence, perhaps, superior in obsequiousness and tractability, to what is likely to be commonly known or imagined.

For, according to Mr. Hands (p. 10,) after “the solicitor has got the master’s appointment on the rule to name the jury,” . . . . it is “the master’s clerk” that “extracts, out of the sheriff’s book of jurors, the names and additions of forty-eight;” and afterwards, “if either party does not attend the master’s appointment,” it is “the master or his clerk” that “strikes out for the absent party.”

§ 5.: Aggregate Mischief of the System.

Of the mischief capable of resulting to the country from the application of this engine of sinister influence, the quantity will, of course, depend on the extent of which the application of the instrument is susceptible.

Cases of felony excepted, this extent coincides with that of jury trial: at least with that of jury trial in causes originating in any of the great Westminster-hall courts. On every occasion, it rests with either party to have a special jury for asking for.* What is reserved to the court is only to say, and that at a subsequent stage, by which of the parties the extra expense shall be borne. Among the causes in which the king is nominally the plaintiff—in those to which the name of crown causes is more commonly understood as being confined—I mean those in which the servants of the crown, as such, being substantially prosecutors, having the prosecution under their care—the expense being borne out of the taxes, all causes, it may well be imagined, become special jury causes: and among these are King’s Bench libel law causes, and, in comparison of these (of which presently) all other crown causes will, to the purpose here in question, be seen to be of light importance.

And here, then, we have not only the possible and probable, but actual extent of sinister influence.

Of the sinister influence of which the institution of special juries is thus the engine, the local sphere is indeed confined, perhaps at least in a great degree, within the bounds of London and Middlesex. But, by causes not necessary to be here particularized, within this sphere are brought, with scarce an exception, all causes that belong to this most important class.

But this mischief, though the principal, forms but one ingredient, in a compound mass of mischief, in which, at least, four distinguishable component elements may be reckoned up:—

1. First comes the injustice—the base and sordid injustice—out of the common pockets of rich and poor, an allowance given by the rich to the rich, in compensation for a burthen which, to those to whom the compensation is given, is as nothing, but, to those to whom compensation is refused, a serious one.

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2. Then comes the pension fund—thus secretly formed, and, though not altogether without the formal allowance, yet, as to its nature and application, completely without the actual cognizance of parliament.

3. In the third place comes the application of this fund to a purpose undeniably hostile, and in its tendency—and, if not remedied, in its sure ultimate effect—destructive to the constitution; destroying altogether, to the extent of its influence (and under its influence are included, we see, the most important causes,) the check which the power of the jury was designed, and is supposed, to apply to the arbitrary power of the judge.

4. Lastly—though, after mention of the preceding abuse, the mention of this last is but an anti-climax, comes the facility which, by the permanence already become notorious, is afforded to the casual corruptor: to any individual to whose improbity it may occur to take advantage of the facility thus afforded.

To extinguish this facility was the declared and principal object of the first of the series of statutes above mentioned; declared in two places (3 Geo. II. c. 25, § 1, § 4.) Corruption of jurors is, in the first of the two places, spoken of as the notorious effect: permanence, the continuance of the same man in that situation, is in the last of the two places spoken of as the cause.*

§ 6.: Views of the Lawyers who penned the Acts.

The confirmation given by the series of statutes, all of them statutes of the last reign, to the use made of special juries, this confirmation, and the prodigious extent to which the practice has in consequence been spread, have been already mentioned.

Of the lawyers with whom this series of statutes originated, or through whose hands it passed, the treacherousness, though in this, any more than in any other instance, treacherousness of this sort ought not to excite surprise, has not the less claim to notice.

The everlastingly vaunted use, and, if not the sole, at least by far the principal use of juries, was the serving as a check to arbitrary power, that otherwise would have been in the hands of judges. But, the mode of appointment considered, in proportion to the extent to which it prevailed, by the substitution of this new-invented to the original species of jury, the efficiency of this check Edition: current; Page: [84] was, in the first instance, greatly debilitated, and left exposed to be at any time utterly destroyed. For the healing of the wound thus given to the constitution, nothing whatever was done by these unfaithful trustees and unworthy representatives of the people.

In the hands of the dependent subordinate of the judge, to whose power the function of those his assessors was in pretence designed to operate as a check, these pretended reformers found the nomination of those same assessors:—in those hands they found it, and in those same hands they left it.

By such practised eyes, the fraud was by far too palpable to have passed unnoticed. As to the remedy, nothing could have been more obvious. In a selection made by human judgment, under the influence of human selfishness and improbity, there was in any hands more or less danger: in a selection made, in the first instance, by chance, corrected afterwards by human judgment, under the influence of impartiality, a neutral power, formed by the combination of opposite partialities, there could be no such danger. The expedient was too much in use, and too obvious, to escape notice. Use will be made it further on, in the composition of the proposed remedy.

The extent they found it occupying (I mean the special jury system) was not only bounded, but extremely narrow. They rendered it boundless: and, by this new-fangled and corruptly-constituted tribunal, all causes that are considered as coming under the denomination of important ones, have accordingly been swallowed up.

To the party in the wrong, to the malâ fide suitor, as often as he sees his advantage in substituting, they gave the power, the indefeasible power, of substituting this unconstitutional tribunal to the old constitutional one; and, amongst others, to the servants of the crown, and to the judges themselves, as often as it should happen to them to have any malevolent passion to gratify, or any sinister interest to promote, at the expense of justice.

Giving to their new tribunal a character so different from that of the old one, which it has to so great a degree elbowed out—giving to a board, secretly composed of commissioners, paid, placed, and displaceable by the servants of the crown the respected and almost sacred name of jury, they thus contrived to transfer to the counterfeit institution, all that attachment and confidence, so justly possessed by the genuine one which it supplants.

Finally, nor, in the extent, as well as confirmation, given to this abuse, did they forget, that which Judge and Co. never have forgotten, profit to their own firm.*

CHAPTER V.: JURY UNANIMITY INCREASES THE CORRUPTION.

§ 1.: The effect of Corruption, how secured by it.

Of the efficacy of the system of corruption, of which the institution of a special jury is the instrument, our conception would be very inadequate, Edition: current; Page: [85] if the force given to that engine by the obligation of what, in the case of a jury, is called unanimity, were not taken into the account. But for this feature, for any purpose of corruption, a majority, or, at least, half of the twelve, all corrupted, would have been necessary: under and by virtue of this feature, one, any one, gained and properly armed—armed with the necessary degree of patience, suffices.

If the mode of forming verdicts had been the work of calm reflection, working by the light of experience, in a comparatively mature and enlightened age, some number, certain of affording a majority on one side, viz. an odd number, would, on this as on other occasions, have been provided; and to the decision of that preponderating number would of course have been given the effect of the conjunct decision of the whole: witness the course taken for securing a decision under the Grenville Act.

But the age in which the mode of forming verdicts was settled, being an age of remote antiquity, of such high antiquity, that nothing more is known of it, except that it was an age of gross and cruel barbarism, the course taken for the adjustment of that operation was different, and, compared with anything that was ever exhibited in any other nation, no less extraordinary than it was barbarous. The whole body of these assessors, twelve in number, being confined together in a certain situation, and in that situation subjected to a mode of treatment, under which, unless in time relieved from it, they would, at the end of a more or less protracted course of torture, be sure to perish: subjected to this torture, but in the case of this as of other torture, with power to relieve themselves from it: in the present instance by declaring, each of them, the fact of his entertaining a certain persuasion (the persuasion expressed by their common verdict,) whether really entertained by him or not: in this way it was that a joint decision, called a verdict, expressed by a predetermined word or form of words, was on each and every occasion extorted from the whole twelve. Such, for the declared purpose of securing truth, veracity, verè dicta—for making sure that, on the sort of occasion in question, whatever declarations of opinion came to be made should be true—such was the expedient invented in the 13th or 14th century—such the course which still in the nineteenth continues to be pursued.

Here, then, as often as in the number of twelve jurors, any difference of opinion has had place, so often has an act of wilful falsehood, of mendacity, had place: viz. in the instance of some number, from one to eleven, included in the twelve, if not (as in the case of sinister influence may at any time happen) in the instance of all twelve. For that it is in the nature or power of torture—one and the same torture—as being applied at the same time and place to twelve persons, A, B, C, D, and so forth, to produce a real change of opinion in any one of them—or if it were, to render it more likely, that the opinion of A should change into that of B, than that of B into that of A, and so forth—is a proposition which, upon reflection, will not, it is supposed, easily find any person either to sign or so much as seriously to say it: excepting always the case of his being placed under the action of any of those machines for the production of peace, concord, ununimity, or uniformity, under the pressure of which anything whatsoever—any one thing as well as any other, is either said or signed.

But though what never can happen is, that by a quantity of bodily pain or uneasiness, any real change should be produced in the opinion formed by any human being on a subject that has no natural connexion with that pain or uneasiness, yet what may very easily, and will naturally happen is, that either by the eventual assurance of any given quantity of pleasure, or, what comes to the same thing, by the assurance of having at command a given quantity of the instruments of pleasure in any shape—or by the eventual apprehension of any given quantity of pain or uneasiness—a disposition may, in a bosom soothed with that assurance, or galled by that apprehension, be produced—a disposition—yes, and moreover, an effective determination—to submit to that pain, for a greater length of time than any during which the same pain will be submitted to by a bosom not acted upon in either way as above.

From this state of things follow two practical results:—

1. Suppose no sinister influence (viz. of will over will) to have place, the verdict will always be conformable to the opinion declared by that one of the jurors, in whose bosom the prospect of the uneasiness to which, until the formation of the verdict, they will all be subjected, operates with least force—more shortly, by him whose sensibility to the torture is least acute—whose power of endurance is greatest.

2. Suppose any sinister influence to have Edition: current; Page: [86] place—an influence acting on the bosoms of any one or more of them in the same direction—while no sinister influence has place in the bosoms of any of the rest;—there are two cases, in each of which the efficiency of the sinister influence, and the delivery of a corresponding verdict, will take place of course:—viz. if on both sides the power of endurance (with reference to the torture) be equal; or if in the bosom operated on by the sinister influence in question (say the fear of losing the situation at the guinea board,) the force of the fear produced by the sinister influence be anything more than equal to the quantity by which what would otherwise be the power of endurance on that side falls short of the actual power of endurance on the other.

§ 2.: Corruptors, regular or casual—both served by Unanimity.

Two sorts of corruptors have above been indicated and distinguished: the regular corruptor, Judge and Co.: the casual corruptor, any individual, to whom it may occur to take advantage of the facilities, afforded by the institution of the guinea corps, for securing a verdict favourable to his cause.

In whatsoever shape, and from whatsoever quarter, the matter of corruption be proposed to be administered, for securing the effect of it, no other contrivance so effectual as this of unanimity—forced and mendacious unanimity—could possibly have been devised.

On so simple and easy a condition, as the being prepared to endure, longer than any of his fellows, a degree of bodily inconvenience which no persons so circumstanced were ever known to endure long, it gives to any one of these jurors, that chooses thus to purchase it, the power of all twelve.

Two different sorts of causes, each with its appropriate judicatory, may serve as examples of the assistance derivable by the two different species of corruptors from this one common source.

I. A political libel cause—sole judicatory the King’s Bench—is in a peculiar degree adapted to afford exercise, or rather does of course and of itself afford exercise, to the sure and safe and silent and imperceptible operation of the regular corruptor, or rather corps of corruptors, whose head-quarters are at the crown office belonging to that honourable court.

2. A smuggling cause,—ordinary, and among the courts of technical procedure in practice, almost sole judicatory, the Exchequer—is, under the invitation held out by the permanent establishment of the guinea corps, in a peculiar degree adapted to the finding exercise for the dexterity of the casual corruptor.

His solicitor (for, when the disposition to corrupt and be corrupted is banished from the Treasury Bench, it will be time enough for a smuggler to despair of meeting with it upon the roll of attorneys,) his solicitor (the same sort of gentleman who, a few years ago, would have answered to the name of attorney) pursuing the instructions given to him as above by Mr. Solicitor Edmunds (p. 119,) “attends” at one of the five packing offices above mentioned, addresses himself according to circumstances, either to the acting master packer himself, or to the clerk, who to this purpose officiates occasionally as the master packer’s deputy—and, according to instruction, as above, makes his “inquiries into the connexions, &c. of the jurors.”. . . . . .

Alas! what a round-about course is this I was about attempting to delineate! as if a solicitor in the smuggling line did not know his duty.

The duty of an advocate is to take fees, and in return for those fees to display to the utmost advantage whatsoever falsehoods the solicitor has put into his brief: the duty of the solicitor is to put into such his brief, whatsoever falsehoods promise to be so made use of to the best advantage. It is for this amongst other purposes, viz. for giving scope and effect to such falsehoods, that, by a law of the modern Medes and Persians, suitors stand for ever excluded from the presence of the judge.

In the great system of delinquency, the smugglers’ branch, as it has its principals, viz. the smugglers themselves who are called by that name, so has it amongst its accessaries—its licenced accessaries after the fact—the learned aiders, abettors, receivers, and comforters, of the aforesaid smugglers.

In virtue of that division of labour, which, by the fortuitous concourse of talents, disposition, and opportunities, has been produced in the court of Exchequer, besides advocates of the inferior order, there is always a title-gownsman or two, regularly established, as anybody may see, in the smuggling line.

Can it be otherwise among solicitors?

In the case of any or each such solicitor, let us then make that supposition, the contrary of which would be alike invidious and unnatural: let us suppose him to know, and knowing, to fulfil, in this behalf, his duty: his duty towards man: and, of his duty towards man, that more specially imperative branch, which is composed of his duty towards the smuggler.

In speaking of the master packer, and his lists, a list mentioned—as one that he ought to have, and having, to keep hung up, is (speaking of special jurors) the gross qualified list;—as a list which it is natural he should have, but not natural that he should keep hung up, another, under the name of the select and secret qualified list, or, to give it its other denomination, the guinea corps.

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The solicitor in the smuggling line, can he be said to fulfil his duty as towards each or any of his clients, if he has not, either in his hureau or in his head, a list of the several members of this corps—as correct and complete as it is in the power of “inquiry” and industry to make it?

If in the whole flock of guines-men there be but a single scabby sheep to be found, that one individual sheep is his man:—under the unanimity system, that one individual secures the verdict.

As to the arguments by which he, whose duty it is to offer the bribe, satisfies the conscience of the habitually obsequious guinea-man of its being his duty to accept it, any attempt to display them in detail would be alike superfluous and irrelevant. Necessity of smuggling—impossibility of carrying on trade without it—informers, perjurers—never believe one of them—prosecution is persecution. . . . . .

“Is it for any such purpose as that of biassing a gentleman’s judgment, that the little compliment—the small retribution for his trouble—is ready to be presented?” “Good heavens! no!—it is only to engage his attention—his strict and unbiassed attention—of which his detection of the system of perjury, which it is known will be brought forward, will be the certain eonsequence.” . . .

But to what purpose go on incumbering the section any further with any the slightest hints? Our solicitor has heard with due attention the speeches delivered from learned silk: he has read debates in newspapers:—poorly qualified indeed must he be for the exercise of this part of his duty, if on the occasion of any such diplomacy he ever finds himself at a loss. Come the worst to the worst, he can but go up to the guinea-man, with his piece of paper in his hand, and in a tone of blunt frankness speak out and say—“Look here, Sir! look at this five hundred pound: this very note shall be yours, the very day a verdict of not guilty is pronounced.—Good Sir! you need not stare so: it is but corruption, make the worst of it: and it’s all for the good of trade. In short, Sir, without corruption, no government can be carried on—it’s a known fact, agreed to on both sides of the house—and if government can’t, I should be glad to know, Sir, how can trade?”

“Well, Sir, we won’t differ about names: if corruption is not to your taste, let us say influence:—and pray, Sir, where’s the difference?”

But, in one and the same cause, suppose the regular corruptor on one side, and the casual corruptor on the other:—in a case of this sort, how will the matter be settled?

Fret not thyself about any such case: it is a case that can never happen: nor, if it were to happen, would there be any difficulty in it.

In the libel line it can never happen: for, as every man that either writes or reads is by law a libeller, there is no such person as a solicitor specially established in the libel line. The regular corruptor—or rather the phantom of the regular corruptor—for (as we have seen) the phantom is quite sufficient—this regular phantom, having here no competitor, walks over the course.

In the smuggling line, it can almost as little happen. The solicitor for the smuggler is solicitous for the smuggler, because, and in so far as, in being solicitous for his client, he is solicitous for himself. Here, then, we have the casual corruptor. The solicitor for the crown is not solicitous for what is called the crown: his solicitude, if he has any, is more likely to be for the smuggler: because the more of them escape a first time, the more there are that remain to be prosecuted a second time; and whether the smuggler be caught or escape, the solicitor remains solicitor as before.

Here, then, provided the fee be handsome enough (for proportions, it will be seen, must not be forgotten)—here it is the casual corruptor that walks over the course: as to the regular corruptor, everywhere but a phantom, he is here a phantom by much too weak to oppose to flesh and blood any effectual resistance. In the Exchequer, he is but a pigmy: it is in the King’s Bench only, and there in the field of libel law only, that he is, as he will presently be seen to be, a giant.

But suppose, be it possible or no, a real competition: a solicitous casual corruptor on one side, a solicitous regular corruptor on the other: how (it may be asked) would matters be settled in this case?

In the guinea trade, as in any other trade, they would be settled upon the principles of trade. Compliment offered, so much down. Per contrà, on taking stock, situation in the guinea trade, gross value, so much: situation not being insurable, either at the Equitable or the Amicable, say loss of value, by peril of false brethren, and shipwreck, in case of non-obsequiousness, so much: balance, for or against accepting compliment, so much.

“But at this rate,” says somebody, “we should have bought acquittals, especially in smuggling causes, as plenty as sham pleas or sham bail—and of any such degree of frequency, or anything approaching to it, are any indications to be found?”

Have patience:—things must have time to ripen. It is only within these few years, and under the auspices of the present learned chief, that the system has been raised to that height in the scale of perfection, at which it will presently be seen to stand. Earth must have time to bring forth her increase: especially in such a field as that of judicature, where if, of those things which yield profit Edition: current; Page: [88] to the husbandman, the growth of every thing is sure, yet even of those things the growth of almost everything is slow.

True it is, that, after fighting off till judgment, the swindler, with another man’s money in his pocket, goes to eight of the twelve judges in the Exchequer chamber, or to four of them in the King’s Bench, as the case may be, and says to them (they appearing in the only mode of appearance which they admit of, viz. by this or that agent of theirs)—“The delay you have upon sale is cut out, I find, in pieces much of a length; let me have one of the longest: make out your account: I know you deal for nothing but ready money; here it is for you.” Here we see perfection—the very summit of the scale.

Expect not, however, that at the guinea office, even at that which is under the Exchequer, business of this sort should, at so early a period of the institution, be already to be transacted upon any such pleasant and easy terms, as with the old established firm, Judge and Co., the business of which has for so many hundred years been conducted upon the true principles of trade.

Expect not therefore to find already established, by the side of each delay-shop, a verdict shop, at which, addressing himself to a clerk of the guinea board, with as much frankness as if in an error-office it were a solicitor to a swindler addressing himself to the clerk of the errors, a solicitor in the smuggling line may say—“The king against such an one—I am for the defendant: secure me a verdict! penalty, so much: 5 per cent. upon that sum, so much; here it is for you.”

No:—to the prosperity of this branch of the trade, one limit there is, which is set by the very nature of the trade.

The regular corruptors are here the fair traders: casual, such as smugglers, are but interlopers: between the fair trader and the interloper there exists an everlasting jealousy. This being the case, suppose this branch of trade arrived even at its highest possible pitch of improvement—no one guinea-man could expect to sell any more verdicts than one. His comrade would peach of course: he would of course be let drop out of the list, and there would be an end of him. Therefore, unless the case be such that the price offered for the verdict is more than a place at the board is worth, the guinea-man is no less incorruptible than Cæsar’s wife was chaste.

Expect not everything at once. Arm yourself with patience. A few pages more, and—though you will not find the curtain that screens the verdict-office so completely drawn up, as that which once screened the delay-offices has now been for these eleven years—yet, should your patience serve you till Part II. chap. 3, a slight peep behind this curtain you shall have.

CHAPTER VI.: PURPOSES TO WHICH INFLUENCE ON JURIES MAY BE MADE SUBSERVIENT.

§ 1.: Blind Confidence in Judges not warrantable.

If, for confining the exercise of it within the paths of justice, the power of the judge stood not in need of any kind of check, the destruction of the sort of check which was designed, and is supposed to be applied to it by the functions of the jury, would not afford any just cause of complaint, any demand for reformation.

If, in the situation of judge, a man were not liable to stand exposed to the action of any sinister interest, or delusive passion, opposite to the interest of the public, in respect of the ends of justice, viz. neither on his own individual account, nor on account of any other individuals or classes of men, whose interests or passions, by whatsoever tie connected with his own, it may happen to him to espouse—were such the real state of things, on that supposition, the exercise—the independent and well-considered exercise—of the functions of the jury would not, in the character of a check to the power of the judge, be of any use; nor, therefore, would any diminution of that independence present any just cause of complaint, any demand for reformation.

Not that, even on this supposition, the propriety of continuing the use of juries, whose obsequiousness were thus regarded as certain, would, in this or in any other part of the field of jury trial, be the practical inference. No: the practical inference would be—that, in this part at least, of that field, juries ought to be abolished.

For sure it is, that if so cumbrous and expensive an appendage as is the jury-box to the official bench were not useful, it would be much worse than useless. To the course of judicature, in the character of a source of factitious complication, and thence of factitious delay, vexation, and expense, it is, as it is, an enormous—as at best it would be—a considerable incumbrance: while to such individuals as are loaded with the duty of filling it without recompense, the vexation is such as to constitute, as we have seen,* no inconsiderable part of the aggregate mass of public burthens.

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In saying abolished—juries ought to be abolished—I mean, of course, abolished by proper authority—abolished by parliament:—not reduced to collections of puppets by the machinations of judges.

But of the several propositions, thus brought to view, for the purpose of the argument, the contraries will, it is supposed, be found true.

Throughout the whole field of special jury trial, for confining the power of the judge—(meaning the exercise of it) within the paths of justice, there exists much need of a check, and that an efficient one.

For, in the situation of judge, throughout the whole of that field (whatsoever is situated without that field belongs not to the present purpose), a man is continually exposed to the action of sinister interest, and delusive passion, acting in directions opposite to the interest of the public, in respect of the ends of justice: to sinister interest and passion, casually on his own individual account, much more frequently on account of other individuals or classes of men, whose interests or passions, by whatsoever tie connected with his own, it may happen to him to espouse.

Throughout the whole field of special jury trial, obsequiousness on the part of juries—obsequiousness (secured, as above, by corrupt influence) is therefore, if the above propositions be true, prejudicial, in a high degree, to the interest of the public in respect of the ends of justice. I say obsequiousness thus secured: and if so, then so therefore are its above-mentioned efficient causes—viz. packing and permanence.

§ 2.: Interests, to the action of which Judges are liable to be exposed.

Money, power, ease, and vengeance, these, together with reputation, so far at least as the efficient cause of felicity in this shape may have the effect of serving as a security or means of increase for it in any of those others—reputation, how well or how ill soever deserved, may be set down as indicative of the several interests by which, when acting in the direction of sinister interests, the conduct of public functionaries in general, and of judges in particular, is, in a more particular degree, liable to be warped.

Partiality—viz. in favour of the interests of this or that other individual or class of men—will be apt to present itself as another interest—and certainly not an inefficient interest—distinct from the above. Such as it is, the indication of it may, however, in a certain sense, be comprised in the above list: since by that one word are indicated the several sorts of interests already spoken of as comprehended in that list; the only difference being in the personality of the individual or individuals, whose interest is considered as being at stake. The pecuniary or money interest, to the action of which, in the character of a sinister interest, I stand exposed, may have for its exterior cause a sum of money which I myself am in a way to gain or lose, or a sum of money which another person, whose interests I espouse, may be in a way to gain or lose: and so in regard to power, ease, vengeance, and reputation, as above.

Of these objects of desire, money and power, especially if considered with reference to no other person than the functionary himself, present, on the present occasion, comparatively speaking, but little matter for attention. To the judge himself, money and power are secured by office: secured and fixed, out of the reach of receiving augmentation, any more than diminution, at the hands of juries: so far as power is concerned, those cases excepted, if any such there happen to be (for they are but of casual occurrence,) in which, the affections of the judge, taking an interest (in the way of partialities*) in the event of Edition: current; Page: [90] the cause, it may happen to his power, in the event of his endeavouring to afford to that partiality a gratification at the expense of justice, to find, in the power of the jury, an opposing check.

Love of ease and desire of vengeance may therefore be set down as the two passions or affections, from the influence of which, for want of such check as the power of a jury was intended to apply, the interests of justice are most exposed to suffer in such hands.

Love of ease applies, and applies alike, to all sorts of causes: vengeance, unless by mere accident, to but one, and that comparatively a narrow one, viz. libel causes; but that, with reference to the interest of the public, so important a one, that all others shrink as it were to nothing in comparison of it.

Not only money and power, but dignity and respect, being secured by office, the chief object of solicitude and pursuit remaining to the judge, is ease. But, so far as jury-trial is concerned, the ease of the judge is as the obsequiousness of the jury. These volunteers, so different from some others, being by the very nature of their situation, and without need of exertion anywhere, kept in a state of constant preparation and established discipline, waiting and wanting for nothing but the word of command, and drilled into that sort and degree of intelligence, which is sufficient for the understanding it, labour, on the part of the judge, is reduced to its minimum, ease raised to its maximum. If circumstances be to such a degree favourable, that not so much as the show of explanation is found necessary, so much the better:—at the worst, all anxiety, and with it the greater part of the labour, is removed by the pre-established harmony.

Nor, in this way, is the reputation of the judge worse provided for than his ease. Be the man in power who he may, what can be more flattering to him—what, to a superficial view at least, more honourable, than the known fact, that under the name of opinion, upon all whose lot has fixed them within the sphere of his intercourse and his influence, his will has habitually the effect of law.*

For the operations of the sinister interest created by the love of ease, every sort of cause, and every sort of judicatory, presents, almost in equal degree, a favourable theatre.

Instead of love of ease, say, for shortness, sloth: which, though under the Pagan dispensation, neither god nor goddess, not ranking higher than with syrens, is not in our days the less powerful; whatsoever might have been her influence in those early times. It is to sloth that, by official persons of all sorts and sizes, but particularly the highest, sacrifices are made continually, and in all shapes: in all shapes, and in particular in that of justice, the only one which belongs to the present purpose. Of a sacrifice of this sort, a sketch, taken pretty much in detail, has already been given in another work, Scotch Reform, Letter IV. Bewitching syren! A little while, and even before these pages are at an end, we shall see a pre-eminently learned and most reverend person confessing his passion for her, with scarce a gauze before his face. Part II. Chap. 4.

Plutus is apt to betray his votaries: to him justice cannot readily be sacrificed but in a tangible shape. Syren Desidia keeps her secrets better: so well indeed, that without hard labour in other quarters, and in no small quantity, sacrifices made to her can seldom be brought to light. Even when a mischance of this sort happens to them, the mischief, be it ever so enormous, finds the public—the English public at least—comparatively indifferent to it. John Bull—the representative of this most enlightened of all publics—is a person somewhat hard of hearing, and unless by the chink of money, and that a good round sum—the irascible part of his frame is not easily put into a ferment: and, even then, it is not so much by the mischief which the public suffers, be it ever so heavy, as by the sum of money which the wrong-doer pockets, be it ever so light, that his fire is kindled. Mischief, if the truth may be spoken, does not much disquiet him, so long as he sees nobody who is the better for it.

The love of ease is too gentle a passion to be a very active one: but what it wants in energy it makes up in extent: for, there is neither cause nor judicatory in which there is not place for it. As to vengeance, it is only now and then, and by accident, that it comes upon the stage of judicature: but when it does, such is its force, that, in the character Edition: current; Page: [91] of a sinister interest, no interest, to the action of which that situation is ordinarily exposed, can compare with it. For the exhibition of the triumphs of this tyrant passion, and of the sacrifices made to it, the King’s Bench is, by patent, the great and sole king’s theatre; the liberty of the press, its victim; libel law, the instrument of sacrifice.

Behind this sinister interest lurks, frequently at least, if not constantly, another, viz. self-preservation: an interest, than which, to judge of it from this its general name, nothing should be more innocent and uncensurable. But self-preservation is preservation of one’s self from evil in any shape: a species of evil, which will be presently seen to be impending—and that, too, an evil from which, by so pleasant an operation as that of the gratification of vengeance, a judge, in that situation, feels himself every now and then called upon to preserve himself, and with himself, his partners in the firm of Judge and Co., together with abundance of his friends, is—the loss of an indefinitely extensive lot of money or power—whether in possession, or, though not in possession, regarded as within reach:—viz. whatever portion of either is not recognised as being the offspring of any species of abuse?

Of the several departments of government, howsoever carved out and distinguished—judicial, financial, military, naval, and so forth—suppose that in all, or any of them, abuses exist—abuses, from which the persons, or some of the persons, by whom those departments are respectively filled, derive, each of them, in some shape or other, a sinister advantage. In this state of things, if there be any such thing as an instrument, by the operations of which all such abuses, without distinction, are liable to be exposed to view, the tendency of it is thereby to act with hostile effect against the several sinister interests of all these several public functionaries; whom thereupon, by necessary consequence, it finds engaged, all of them, by a common interest, to oppose themselves with all their means, and all their might, not only to its influence, but to its very existence. An instrument of this all-illuminating and all-preserving nature, is what the country supposes itself to possess in a free press; and would actually possess, if the press were free as it is supposed to be.

3.: Interests, to the sinister action of which English Judges stand actually exposed.

Thus much as to the interests, to the action of which (in the direction and character of sinister interests) the probity of a judge, in every age and country, is liable to stand exposed.

But—not to speak of the footing on which the matter may stand in this or that other country—in England at least, so far as concerns pecuniary interest—the most uniformly active and generally irresistible of all sinister interests—the degree in which the probity of a judge has ever stood, and still continues to stand, exposed—in mechanical language, to the action of sinister interest—in chemical language, to the action of the matter of corruption—is such as cannot anywhere be exceeded.

Paid as he is paid—and were he even paid on any purer principle—trained as he has been trained—draughted from the corps from which he has been draughted—not only his interests, but the prejudices begotten by those interests, are in a state of constant, universal, and diametrical opposition to his duty—to every branch of that duty—to every one, without exception, of the ends of justice—(Scotch Reform, Letter 1.)—to the several most immediate ends, not to look out for any remoter ends:—to the collateral ends—avoidance of unnecessary delay, vexation, and expense—to the main ends, avoidance of denial of justice, and of undue decision to the prejudice of the plaintiff’s side, and avoidance of undue decision to the prejudice of the defendant’s side. In a word, in exact proportion as by or under the authority of this Dives the suitors are tormented, he himself—not only in his preceding character of advocate had been used to be, but in his present character of judge continues to be—comforted!

Not a delinquent, high or low—but especially not a high and powerful delinquent—with whom he is not linked by the bands of a common interest. Not a wrong, from which, if not certainly and immediately, at any rate in respect of its natural and frequently efficacious tendency, he does not derive a profit. The more wrongs, the more causes; and the more causes, the more fees!

Not an imaginable channel (that of punishable bribery alone excepted) in which, in the shape of the matter of corruption, the matter of wealth does not, under the name of fees, flow in daily streams into the pocket and bosom of the judge:—1. Receipt of fees in virtue of his own office, under his own name. 2. Fee-yielding office, given in appearance to a clerk, out of whose hands the profits of it are squeezed. 3. Sale of a fee-yielding office for full value. 4. Fine or bonus on admission. 5. Fee-yielding office given in lieu, and to the saving of the expense, of other provision for a son, or other near relation or dependent, he doing the duty. 6. Or else not doing the duty, but paying a deputy. 7. Fee-yielding office given, or the profits of it made payable, to persons standing as trustees, for a principal, declared or undeclared; if undeclared, supposed of course to be the judge himself.

No other country upon earth, in which, Edition: current; Page: [92] among judges—(I speak always of those of the highest rank, to whom alone the name is given, and by whom the great and happily uncorrupt body of those functionaries is ruled,)—no other country upon earth in which, in this highest rank, amongst these monopolizers of the honour so justly due to the function, corruption has place to an extent approaching to that to which it has spread in this country of pretended purity, or in which it is possible that anything like equal profit should be made by it. In other countries, not being practicable but in the shape of bribery or extortion—practices proscribed by law, and necessarily open to detection—it is but casual: in England, being, in all these other forms that have been mentioned, either legalized, or seated above the reach of punishment, it is, in that highest rank, constant and universal.

By means of sine-cures in general, and judicial sine-cure offices in particular, whatsoever money is levied upon the subject is so much extracted from him on false pretences: the tyranny of extortion, and the turpitude of swindling, are combined in it. In the case of judicial sine-cures, by the very men by whom these enormities are punished—punished in cases in which they derive a profit from the punishment, and none from the practice—these same enormities are not only connived at, but participated in, and the profit pocketed.

Falsehood—corrupt and wilful falsehood—mendacity, in a word—the common instrument of all wrong—was, in the instance of all those judicatories (as any man may see, even in Blackstone,) among the notorious foundations or instruments of their power: and, in every one of them, from the beginning of each cause to the end, sometimes by the lips or the hand, always under the eyes of the judge, matter of constant and universal practice. Not one of them, in which it is—not merely allowed of, but encouraged; and not only encouraged, but forced, inexorably forced. Without so much as an attempt at argument, in the very teeth of common sense, falsehood, the irreconcilable enemy of justice—falsehood, under the name of fiction—is passed off by them upon the deluded people—passed off as the true friend and necessary instrument of justice!

In such a state of things, behold two propositions, between which the perplexed and deluded people are left to make their choice:—1. That falsehood—wilful, deliberate, and rapacious falsehood—is not a vice; or 2. That it is in the power of man—of every man who has the power of a judge—to wash away the filth of vice, and transform her into virtue.

Hence, if mendacity and rapacity be vices, the very sink of vice is the seat of the titled lawyer, who, to his other titles, blushes not to add that of custos morum—guardian of the public morals: as if the most noted among procuresses were regularly to write herself over her door—guardian of female chastity!

In the character of an instrument of corruption, for the depravation of the moral part of man’s frame, falsehood has been scarcely more useful to them, more actively employed, or more deservedly prized by them, than in that of an instrument of deception, for the debilitation, perversion, confusion, and depravation of the intellectual faculty.

Fiction, accordingly, has scarcely been more serviceable, in the character of an engine, for the accumulation of undue profit and illegal power, than in the character of a species and source of nonsense, by which the eye of the understanding, being blinded or bewildered, is thus prevented from seeing the absurdity and wickedness which is at the bottom of it.

In every one of these paths of depravity, the most depraved system that can be found in any other country is left far behind. “Swearing,” says one of the characters in a French drama, “constitutes the groundwork of English conversation:Lying, he might have said without any such hyperbola, lying and nonsense compose the groundwork of English judicature. In Rome-bred law in general—in the Scotch edition of it in particular—fiction is a wart, which here and there deforms the face of justice: in English law, fiction is a syphilis, which runs in every vein, and carries into every part of the system the principle of rottenness.

Let us steer clear of exaggeration. In this, as in other parts of the field of law, to plant new abuses is not even now so easy as to preserve the old: and as the resisting strength of the public mind increases, the difficulty cannot but increase.

But if the stock already in existence be in any degree greater than what is desirable, and especially if among them there be any of so hardy a nature as, without need of further care, to keep on growing of themselves, no very powerful plea, it is presumed, will by this admission be afforded in favour of any such unbounded confidence as must be bespoken for judges, by any person to whom the check, supposed to be applied to their power by that of juries, is regarded as superfluous.

Keeping our minds fixed on jury trial, and the extent to which it is capable of operating, in the character of a check to the enormities above mentioned, and thence on the amount of the mischief liable to be produced by the destroying or weakening of that check; another observation which, in the way of admission, it may be of use to make, is—that, so far as concerns sinister profit, by far the greater part of the work of corruption has been executed by means of a set of devices (see the list in Scotch Reform, Letter 1.) to the success of which the concurrence of juries neither is nor ever has been necessary. Edition: current; Page: [93] But neither are instances by any means wanting, in which, whatever be the purpose—profit, ease, vengeance, or whatever other sinister advantage may be the object of the day—complete success, even with the aid of the whole host of those devices, may, in one way or other, depend on the obsequiousness, so effectually secured, as above, on the part of juries. (Scotch Reform, Letter IV.)

Upon the whole, under the fee-gathering system, as above glanced at, of which system packed juries and sham jury-trial have come to make a part, the result is—that, unless in an English judge the nature of man be totally opposite to what it is in every other human being, unless this be assumed, everything at all times, rather than nothing at any time, ought in common prudence to be apprehended at the hands of an English judge.

§ 4.: Existing Popularity no sufficient Ground for Confidence.

“But amidst, and in spite of, all this temptation, the purity of English judicature, is it not in fact so exquisite, and so universally recognised, as to have become in a manner proverbial? And in this experience is there not that which suffices for the confutation of all that theory?”

Universally? Not much short of it.—Proverbial? There or thereabouts. But note well the causes:—

1. Impurity, to appearance washed away by legalization.

2. Impurity, covered over by perpetually renewed coatings of interested praise.

3. By intimidation, impurity protected against disclosure.

These causes understood, the popularity will be seen to be the result—and, as such, an indication—not of purity, but of depravity.

Thus much for hints:—follow a few elucidations.

1. Impurity, to appearance washed away by legalization.

Be the system what it may, and let impurity have risen under it to ever so high a pitch, yet if the system be but of old standing, the sanction lent to it by antiquity is sufficient to prevent the impurity from fastening any the slightest stain upon the reputation of the system: as also, so the system be but legalized, upon the reputation of the judges, be they who they may, who act under it.

In the way of sale, or in any other way, suppose the judge to derive an advantage from an office, the profits being composed of fees, the aggregate amount of which it depends upon himself to increase, or preserve from diminution: for example, by increasing or preserving from diminution the number of the occasions on which they shall be received. If among the acts by which an advantage of this nature is capable of being reaped, there be any one which, being prohibited by law, and made punishable, is, upon occasion, actually punished,—then it is, that in case of his being known or suspected to have done any such act, his reputation will be more or less affected. But let that same act be allowed by law, and legalized, his reputation remains untouched.

Now there are two sorts of law, by either of which, or by a mixture of both, a judicial practice may be legalized: one is common, alias unwritten law; and this is the sort of law which (in so far as a rule of action which has no determinate set of words belonging to it can be said to be made) has for its makers the judges themselves; since it is by their own practice that it is made. The other is statute law; and in the making of this, through the means of their partners in trade in both houses, they have at all times possessed and exercised a most baneful, and, if not altogether irresistible, scarce ever resisted influence.*

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Of the effect of the sinister interest under which the judicial system of this country, or call it the system of procedure, has been throughout its whole texture, and all along Edition: current; Page: [95] manufactured, the samples given in the note are but as so many handfuls of tares (let us not say wheat,) taken at random out of the contents of the whole granary. In a parenthesis as it were, as here, more will surely not be expected.

Such is the mode, and such the hands, in and by which, upon a careful computation, the mass of factitious expense and delay (not to speak of vexation,) with which the approaches to justice are clogged, have, according to circumstances, been increased to some scores, and even to some hundreds of times what would otherwise have been its amount, and the great mass of the people—from ninetenths to nineteen-twentieths or more—fixed—with only here and there an exception produced by inconsistency—fixed in a state of perpetual outlawry: exposed without redress to injury, in every shape in which it is not deemed criminal, besides a multitude in which it is.

But this system of general proscription, this system of general outlawry, being the work of law, is according to law: the creators and preservers of it, being all men of law, are “all honourable men:” and in the words of Blackstone, “every thing is as it should be.

2. Impurity, covered over by perpetually renewed coatings of praise.

Partly by the imbecility, partly by the interested artifice of the makers, the rule of action, unwritten and written law together, having been worked up into a chaos, of which it is impossible for the people to form to themselves any tolerable conception: hence such conception as they have of it, is grounded, exclusively, upon the reports made of it by the manufacturers themselves. But the worse they have made it, the greater their apprehension, lest its depravity should be discovered. The less deserving it is of praise, the greater the need it has of praise: the more flagrant its defects, the greater the demand for the only sort of covering of which they are susceptible. (Scotch Reform, Letter IV.)

1. In regard to the system, the more afflictive it is to the people in the character of suitors, the more profitable it is to the man of law: and the greater the profit he derives from it, the greater the quantity of praise which it is his interest to bestow upon it, and which accordingly he ever has bestowed, and ever will bestow, upon it.

2. So in regard to the persons, by whom, for the time being, it is administered: the persons themselves being linked together by the tie of one common interest, and all who either dare to publish any account of their proceedings, or are qualified to publish any tolerably correct one, being candidates for their favour, the consequence is—that, with the rare and casual exceptions produced by party jealousies, the same picture of scarcely diversified excellence has served for all of them at all times. The portrait is the same: and all that remains for this and that new limner is to write under it this and that new name.

In this happy state of things, the system, and those by whom it is administered, afford reciprocal demonstrations of each others’ excellence: the excellence of the system is proved by the excellence of those by whom it is administered: and the excellence of those by whom the system is administered is proved by the excellence of the system by which they were formed and under which they act.

Up to the instant which sees him mounted on the pinnacle of the bench, the man of law is recognised by every body, as being of the number of those to whom right and wrong, truth and falsehood, would be matter of complete indifference, were it not for the predilection naturally entertained for the best customer: and in whom the minister of the day, through whose hands in his way to that pinnacle he must first have passed, has found an instrument no less ready, for the wages of corruption, to do the work of corruption upon the largest scale, than the individual wrongdoer has found him to do the work of iniquity upon any smaller scale. Yes, and although his interest remains at least as opposite as ever to the interests of the community, in respect to the ends of justice, no sooner have the form and substance of his robes undergone the customary transfiguration, than the heart, which they so well cover, is universally understood to have undergone the correspondent change. The corruption has put on incorruption: and the will, the training of which towards the paths of iniquity, had till then been so generally recognised, is now secured against all danger of taking a wrong direction, being itself become the standard of rectituds.

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3. By intimidation, the impurity protected against disclosure.

While, under the spur of every excitement which avarice or ambition can apply—(every thing that is said of the law and its administrators, being a sort of prize-essay on their perfections)—while, by the force of this stimulus, whatsoever features of excellence it possesses are raked together, and held up to view, decorated with every embellishment that interested eloquence can bestow—its defects, were they still more flagrant than they are, would be, as they ever have been, kept covered up and protected against disclosure, by every force that either authority or power—influence of understanding over understanding, or influence of will over will—can bring to bear upon the subject.

Point out a defect in the system, all ears are stopped against everything you can say,—all eyes shut against everything you can write: or if haply indignation breaks the bridle set upon the tongue and the pen by prudence, hatred and contempt in all their forms—sincere hatred, accompanied with simulated contempt—are poured upon your head. Jacobin, leveller, enemy of social order—theorist, speculatist, visionary—compose the arguments you have to encounter—together with whatsoever other appropriate epithets and phrases, substitutes to truth and reason, are furnished by the courtier’s and lawyer’s gradus.

Touch upon those who act under the system—under it—or, if so it please them, over it—point out any defect in their conduct in respect of it, millstones still better adapted to the purpose of crushing, than either hatred or contempt—ruin in the shape of prosecution—and, if that be not enough, in the shape of imprisonment—millstones ready to be let fall every moment, at the nod of caprice or vengeance—hang aloft over your head.

Victims of the system, or sympathizing with those that are, whatsoever complaints men have ventured to give vent to on this ground, terror and prejudice have combined to point to the wrong mark. The system is faultless; the creators and upholders of it are faultless; but, in the shape of wicked attorneys, evil spirits creep in now and then, and convert into poison the salutary remedies it affords.

No representation was ever more opposite to the truth. The quantity of mischief produced by anything which, under the name of irregular practice, is either punishable or censurable, is as nothing in comparison of that which is produced by regular practice—by that which has been legalized and organized for the purpose: and even the loopholes, at which the irregularities have crept in, are amongst the works which the regularity of regular practice has had for its objects and its uses. If judgments are snapt, it is because, by the pre-established mechanism (Scotch Reform, Letter I. Devices 5 and 8,) they were framed as they are, to fit them for being snapt. Now and then, in great ceremony, in the character of scape-goat, or, to speak in modern language, in the character of tinman, in expiation of the sins of the whole tribe, a miserable attorney, the child of the system, is sacrificed on the altar of offended justice: but the chief profiter by all those sins, is the chief priest, who, with indignation on his brow, and laughter in his heart, offers up the sacrifice.

By the inferior branch of the profession—by the attorney branch—the system has all along been taken such as it has been found: it is by the two superior branches—composed of judges and advocates—advocates in the senate, judges occasionally in the senate, constantly on the bench—that it has been made such as we see, or rather as we feel it.

Of the three branches, the inferior, as it is the most populous, so is it in its nature the least impure. To an attorney—those operations and instruments excepted, in which the part he takes is compulsory and unavoidable, having been imposed upon him by judges—to an attorney, as such, the language of insincerity is never necessary. On the part of the advocate, the necessity and consequently the practice, is constant: the only choice there is for him, is between the more and the less.

Such is the mind of the advocate: and the mind of the advocate is the stuff of which the mind of the judge is made.

Filling the bench from no other fund than the bar, is it not exactly such a mode as if boarding-school-mistresses and governesses were never to be chosen but from brothels?

Yet, by giving to the matter and language of the law, a texture nauseous to every liberal mind, and impenetrable to every mind not sharpened by hunger, an exclusive admission to the bench has been secured, in favour of a profession which, if either love of justice or of truth had been considered as necessary qualifications, would for ever have stood excluded.

Obvious as they are, against all these considerations the non-lawyer has learnt to shut his eyes. At an early age, the picture of the law drawn by Blackstone had been put into his hands: a picture in which all deformities and turpitudes are plaistered over with the most brilliant colours. To pry into the original would require hard labour: to glance over the picture requires but a glance. Set before him the original, he turns aside from it: to an insight into the original, he prefers a dream over the picture.

Thus it is that, when rightly considered, the popularity of the system—paradoxical as Edition: current; Page: [97] at first sight the proposition cannot but appear—the popularity of the system, so far from being a conclusive proof of its excellence, affords a proof, inasmuch as it is among the results, of its depravity: the depravity being the cause, of which, through the intervention of the intermediate causes that have been brought to view, the popularity has been the effect:

1. Depravity, viz. in respect of factitious delay, vexation, and expense; 2. Profitableness to lawyers, in respect to their profit upon the expense; 3. Popularity among lawyers; 4. Praises by lawyers; 5. Popularity among the people at large, but more particularly among the ruling classes, connected in so many points of sinister interest with the lawyers,—in three out of the above five we see the intermediate links, by which a cause and effect, to a first view so wide of each other, have been brought into connexion.

Important as these topics are—viz. the goodness of the system, and the virtue of those who act under or by virtue of it, to the present purpose they belong in no other point of view than this:—of the packing system—being a system which, it has already been seen, is established, and, as it will soon be seen, has been avowed, the effect—(quoth the argument against it—say, in lawyer’s jargon, the declaration)—is to destroy this part of the constitution, by destroying the check which the power of the jury was intended to keep applied to the power of the judge:—nay; but so transcendently pure, (quoth the argument in favour of the package—say the plea) so transcendently pure, under and by virtue of the system, is the virtue of the judge, that no such check is or ever can be necessary. Such being the plea, it became necessary to traverse it: and if the plea itself be no departure, so neither is the traverse.

CHAPTER VII.: CHIEF PURPOSE, CRUSHING THE LIBERTY OF THE PRESS.

§ 1.: Liberty of the Press—has it any and what Existence?

We come now to the grand and paramount use of the packing system—the crushing the liberty of the press—destroying whatever remains of it undestroyed.

To prevent indistinct or erroneous conception, a few words of explanation may here, once for all, be of use.

King de jure and king de facto, is a distinction familiar to every eye, that has ever glanced over English history. The same distinction must be applied to the liberty of the press, by whosoever would be saved from falling into error and heterodoxy on this scabrous ground: Liberty of the press by law? No. That sort of liberty excepted, which consists in the non-existence of a safety-shop, in the shape of a licenser’s office, no such thing either has, or ever has had, any existence. So, embodied in the person of Lord Mansfield, the soul of the custos morum certified to some of us in 1770.* So, embodied in the person of Lord Ellenborough, the same guardina spirit of good order confirmed to us in 1804.

Liberty of the press de facto? Yes: viz. that which, being contrary to law, proscribed by law, has all along maintained a sort of rickety, and still maintains a momentary half-existence, in the teeth of consistency as well as law, by means of breach of the law in low situations, and non-execution of the law in high ones.

Hence it was, that in the place of any such words as destruction or destroying—which otherwise would have been so much more obvious—it was necessary to look out for some other of a less determinate import, such as crushing, as above. For of any such word as destroying, the effect would have been to bring in with it, and keep attached to it, the idea of existence: than which, as above, a more dangerous heresy could not, by any Englishman, Protestant or Catholic, be entertained.

But, forasmuch as, in neglected bodies, vermin of all sorts will be apt to crawl into existence, hence comes the necessity which persons in “high situations” are under, of keeping in their hands the means of crushing—as often as in any such shape and stature as to render itself troublesome, it happens to it to show itself—the liberty—but, forget not for a moment, the de facto liberty—of the press.

In the first place, while pen and ink remain still at command, I shall endeavour to bring to view a sketch—an extremely slight and temporary one—(for that is all that can here be given)—a sketch, or rather as before a sample—of the interest which not only Judge and Co. as above, but moreover the high connexions of the firm, have, in keeping the liberty of the press in the sort of abortive embryo state in which it has so effectually been preserved; viz. by the hands by which, had convenience prescribed, and possibility Edition: current; Page: [98] permitted, it would have long ago been no less effectually destroyed. I shall then, but rather in the way of recapitulation and reference, than in any other, add the little that can be necessary to show the assistance that may always be depended upon from the zeal of the master packer’s office, and the discipline of the guinea corps on the occasion of so necessary a service.

In the catalogue of abuses, judges have their peculiar articles, other high-seated persons have theirs. But, towering above all the rest, one abuse there is, in the profit of which Judge and Co. find their partners, in the very highest and most impregnable situations: in the one House, in the other House, in the Cabinet, in the Closet: yea, even among those whom “the king delighteth most to honour.” I speak of that congeries of abuses, the component elements of which are law sine-cures.

So far as judges alone are concerned, it has been slightly touched upon already: but in consideration of the prodigious increase of strength given to the alliance bipartite between judges and wrongdoers, by the accession of court favourites, and the triple alliance thus formed for carrying on with irresistible force the predatory war against the common enemies, viz. liberty and justice, a few ulterior elucidations, respecting the nature and cementing principle of the alliance, may have their use.

§ 2.: Improbity in Judges, and their high allies—its Hostility to the Press.

Some years ago,* on the examination of a question of finance, I found occasion to inquire in what way, by the taking out of the pockets of the people a given sum of money, the greatest possible quantity of mischief was produced. The result was—by assessing it, in the form of a tax, on the several operations and instruments, the performance and exhibition of which were rendered necessary to a man to enable him, whether in the shape of plaintiff or in that of defendant, to take his chance for justice.

Affliction heaped upon affliction, in the case of him who has wherewithal to comply with the exaction—denial of all relief, exposure, or rather subjection, to all imaginable wrongs, in the case of him who has not wherewithal to satisfy the exaction—such are the shapes, in one or other of which, or both, the mischief manifests itself; and in the latter case, being the case of virtual outlawry, a vast majority of the subjects of the British empire,—say nine-tenths, say, more likely, nineteen-twentieths, subject to limitations and exceptions too particular, and, upon the whole, of too little extent to admit of notice in this place,—would be found. (See Scotch Reform, Letter I. and elsewhere.)

The quantity of money, taken from a man on this account, being, in the mathematical sense, given, i. e. determined—what the appellation employed on that occasion may happen to be—for example, a tax or a fee—as well as what the pocket may happen to be, in which it finds its resting-place after it has gone out of his own—whether that of the public, for example, or that of a judge, or other man of law—is to him, and in respect of the quantity of suffering, of which, in his instance, the defalcation is productive—a matter of indifference. Yet so it happens, that though the quantity of money so raised being given, a tax on law proceedings is by far the worst of all possible taxes, yet, by the money raised on law proceedings under the name of fees, mischief, to an incomparably greater amount has been produced, than by money raised on the same occasion under the name of taxes.

The reason is altogether simple. By the man of finance, at whose instance the money is exacted in the name of a tax, the occasions on which it is exacted are not created, but taken as they are found. But of the man of law, especially in the station of judge, by whose power, and, in some shape or other, for whose benefit, the money is exacted in the name of a fee, it has been in the power to create the occasions on which it is exacted, which accordingly he has done. And in this difference, the immense load of misery, so regularly manufactured by judges, their connexions and dependents, has found its cause. The amount of this mischief has in some sort found its expression, in the difference between the amount of factitious delay, vexation, and expense, habitually created in the technical mode of procedure, styled on this account the fee-gathering, as contradistinguished from that natural mode, which, without a total dissolution of the bonds of society, could not have been by its overbearing antagonist utterly expelled. (See Scotch Reform, Letter I. throughout.)

Of these fees, by the concourse, as usual, of sinister design and accident, masses of emolument, of different bulks, from that of a bare subsistence, to ten, twenty, or even thirty thousand pounds a-year and upwards, exacted by so many different persons, have been composed; and here comes the community of sinister interest, by which the judges of all the high judicatories without exception—and in particular the Chief Justice of the King’s Bench—the master-manufacturer of libel law—and in effect the absolute master of the press—have been linked together: linked with each other, and with some of the most influential members of those supreme assemblies. Edition: current; Page: [99] from which alone remedy to abuse, in this or any other shape, can come.

Where, of the masses of emolument thus formed, the bulk has been to a certain degree moderate (being received in all cases in the name of reward for service,) the reward has been suffered to remain in the pocket of him by whom the service has been performed.

Where it has happened to the mass to swell to such a bulk as to attract the notice of irresistible rapacity in a higher sphere, it has been fastened upon as a prey: and, a comparatively small pittance, though by the experiment proved to constitute an adequate compensation for the burthen of the service, being left to the low-seated individual by whom the service was performed, the remainder has been seized by the high-seated personage, by whom in that shape no service whatever has been rendered, even in pretence; and to whom, in many instances, it has never been necessary, that he should have rendered to the public any the smallest service whatsoever, in that or any other shape.

Of these enormous masses of misery-making emolument, outstripping by far in magnitude, if not in mischievousness, whatever has been produced by the judicial system of any other the most outrageously misgoverned country, some have been seized by judges, and above all by the Chief Justice of the King’s Bench—others having been left in the hands of the crown, have fallen a prey to the vultures that hover about a court. And here we see a natural bond of the closest union between Court and Bench.

At present (it may be said)—whatsoever may have been the case formerly—at present no such sinister interest is created by any of these masses of emolument. For, at present—the maxim having been established, that no mass of emolument in possession, and obtained without breach of law, shall be taken from any man without an equivalent—no man has any interest in the retention of them—neither a judge nor any one else.

To this observation the colour of reason is not wanting, but the substance is. Allowances which, under the spur of reform, have thus been given by the legislature under the name of equivalents, have scarce ever been complete.

Of the masses of emolument in question, viz. those attached to sine-cure or overpaid judicial offices, it is the nature to go on increasing, as population and wealth increase, from year to year; and this, even in the way of natural increase, and setting aside whatsoever factitious increase may be contrived to be given to them by the combined ingenuity of the partnership. But by any allowances that should be given in lieu of them, under the name of equivalents, no such increase would be experienced: they would be fixed sums in the nature of pensions.

Of those ever increasing masses of emolument, not only the possessors but the expectants, know of course much better than to submit to any commutation, so long as, by any means not punishable, it appears possible to avoid it.

Pillaging the future as well as the present, the Gavestons and Spensers of successive ages—nor let the present be forgotten—contrived to obtain in expectancy those masses of ill-collected and ill-bestowed wealth, life after life. Passion and policy have here acted in alliance. Passion seized on the booty: policy rendered it the more secure. The more enormous the prey, the greater and more burthensome would be the compensation necessary to be given for it under the name of an equivalent. So long as the burthen falls on men whose afflictions are productive of no disturbance to the ease of the man of finance, it tells for nothing. [See Protest against Law Taxes.] So long as the burthen continues to be imposed by a tax which, though beyond comparison more mischievous than any other, was not of his imposition, the man of finance had no personal concern in the matter, and how enormous soever may be the mass of misery produced, it formed no object of his care. But to provide the compensation, if that came to be provided, was so much hard labour to him: while of those he has to deal with and to cajole, the great crowd is composed of such as care not what mischief is produced by a tax, or anything else they are used to, but cry out of course against everything of that sort, as of any other sort, when it is new.

The law moreover is a sort of black lottery, a lottery of all prizes indeed without blanks, but the prizes so many negative quantities; instead of so much profit, so much loss; and the same confidence in fortune which secures to a man’s imagination the acquisition of prizes in the state lottery so called, secures to it the avoidance of them in the lottery of the law.

And thus it is that by every continuance given to this species of depredation a fresh obstacle to the abolition of it is opposed.

“You call this economy, do you? Know then, that, by this economy of yours, the mass of public burthen, so far from being diminished, will be increased,” cries the iron-hearted sophist, in whose balance the heaviest load of misery, in which he and his confederates expect not to bear a share, weighs but as a feather.

Turn now to the despot of the press, and consider what in this state of things the plan of policy is which in his situation a man may be expected to pursue. His first object would of course be the affording the most effectual protection to abuse in those instances in which Edition: current; Page: [100] the benefit of it is in the whole, or in part, reaped by himself and his own immediate connexions.

But to protect that same abuse with its benefit against limitation, and even reduction, under the name of compensation, might require support and alliance elsewhere. To protect with effect the abuses, the benefit of which accrued immediately to himself, it would therefore be necessary for him to extend his protection without distinction to all established abuses from which any other man so situated as to be capable of giving him the needful support, derived or could conceive himself to derive in any shape a benefit: in a word, to act in the character of protector-general of all established abuses.

The liberty of the press being their common and irreconcilable enemy, the liberty of the press became the necessary object of their common and interminable war: existing, it was to be destroyed: not existing, it was, so long as possible, to be prevented from coming into existence.

And here we see the knight’s service looked to at the hands of the guinea corps and its squires.

Of the energy and effect, with which this conspiracy among governors against good government has been carried on, diverse exemplifications will present themselves as we advance.

§ 3.: Incapacity in Judges, and their high allies—its Hostility to the Press.

By this copartnership in the profits of misrule, the bond of union, formed as above, between judges and the other leading members of government, is a constant one. But besides this, there is another which, how frequently soever exemplified, may, in comparison of the former, be termed an occasional one: I speak of that in which incapacity—congenial and mutually sympathizing incapacity—is the cementing principle.

Suppose a judge—no matter in what particular respect—incapable of discharging the duties of his office: discharging them ill: or—what constitutes the most palpaple of all exemplifications of incapacity—not at all. If on the part of the suitors to whom such his incapacity has been a source of injury—or, on the part of other persons, prompted by sympathy for their sufferings, or by the pure love of justice, facts indicative of this incapacity, or complaints grounded on those facts, were made public, the consequence might be—an obligation on his part to withdraw from the situation, his continuance in which had rendered him an instrument of such extensive injury.

To any such unfit judge, a free press would naturally be an object no less odious and formidable than a prison to an ordinary delinquent, whose situation had not elevated him above the reach of justice.*

But by the same cause, incapacity, by which a free press is thus rendered an object of hatred and terror to a functionary seated in the situation of judge, it would of course be rendered an object of the like emotions to a functionary in any other situation: to a functionary, to whose apprehension any the least danger were to present itself Edition: current; Page: [101] of his seeing such his deficiency exposed to view.

Men who, to all practical purposes, are seated above the law (and the existence of an indefinite multitude of men self-seated in the situation, is a fact unhappily but too incontestible,) men so circumstanced as they—have nothing to fear from any other quarter—so, as far as they have anything at all to fear from any quarter,—have everything to fear from the liberty of the press.

Accordingly where, on an occasion already spoken of, the recent grand attack was made upon that branch of English liberties, and for the more effectual accomplishment of those purposes (if of any purposes at all) the modern case de famosis libellis was displayed to view, and the fundamental principles of libel law developed, and adapted to existing circumstances—among the propositions laid down upon that occasion was—that in speaking (viz. in print) of any man “placed in a high situation,” to say anything “meaning to infer that” he “is ill-placed” in (such) “his high situation” is “a libel:” and this, even although his unfitness for that high situation be of no worse sort, than that which is not incompatible with his being “fit for the ordinary walks of life.*

If there be any way in which it is possible for the hand of power to afford protection and encouragement to mis-rule—to mis-rule in all its branches—it is surely this: viz. the threatening with the vengeance of the law all such as shall do anything towards holding it up to public view: and towards this end, whether anything, which it is possible to do by the exercise of judicial power, has been left undone, let this doctrine, together with the sentences with which in other prosecutions it has been followed up, declare.

But the persons, at whose instance and for whose protection these sacrifices were made—these sacrifices of public welfare to private convenience—were a junto of “great characters”—some learned, some unlearned—“placed” (but whether well or ill let him pronounce to whom liberty and imprisonment are matters of indifference) “placed,” at any rate, somehow or other, “in high situations:” and, in the instance of some of these great characters, how urgent the demand was for this sort of sacrifice, will, at the peril of imprisonment, appear in another place.

CHAPTER VIII.: THE EXCHEQUER PACKING OFFICE SUFFICES.

Keeping the liberty of the press, as it were, in a state of constant annihilation (if the expression may be allowed,) being thus, among persons “in high situation,” in these days of unexampled purity, the common object—the one, and almost the only one, in the attachment to which the agreement is among them constant and almost universal—come we now to the convenience afforded by the chief jury-packing office for so necessary an operation.

By the chief jury-packing office I mean, on this occasion, that one of the seven which has for its master packer the deputy-remembrancer of the Exchequer. To this distinction the title of that office is rendered incontestible by two considerations:—1. The permanence, and thence the operations of which it is the result, are, in the instance of that office, avowed by the judge, and defended by him upon principle; 2. The number of juries thus nominated in that office is equal to little less than that of all the juries nominated in like manner in all the other offices put together.

The proposition to be proved is—that though the Exchequer—the judicatory to which this office belongs, is not itself the judicatory in which the operation of crushing the liberty of the press is carried on, yet, for the purpose of that operation, the system of package, and the collection of permanent special jurymen which compose the produce of that system, are no less effectually sufficient, than if the scene of the chief part of the jurypacking business were an office immediately under the judicatory in which the business of crushing the liberty of the press is carried on.

On this head little remains but to recapitulate. Here may be seen the grand house of call for guinea-men: here the receiving-house in which the recruits are enlisted: here the parade on which they are drilled: here the grand muster-roll—the select and secret qualified list—on which they are entered: here the register-office, in which their “connexions,” &c., and thence their qualifications, are registered, and accordingly inquired after by all lips to which the information can be of use.

But why (it may still be said) lay so much emphasis on the Exchequer? If the Exchequer has its two master packers, has not the King’s Bench as many?

Yes: but in the Exchequer, the permanence, which but for actual packing could not have place, is, as hath just been mentioned, irrevocably confessed, or rather professed: in the King’s Bench, no such avowal can be produced. It is in the Exchequer alone that the main body of this corps being in constant service, it is there and there alone that, with certainty, and without effort, the trust-worthiness—the degree of discipline—of each member is known to the whole staff.

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To this office, therefore, it is, that in case of need (when a libeller, for example, is to be punished for calling a man, in “high situation” by his father’s title, or for questioning his fitness for his office,) a solicitor to the crown would send his order—saying, “Pick me out a good dozen for King’s Bench service.”

“Oh—but all this—so far, at least, as concerns King’s Bench, and libel law—is but mere surmise; the work of audacious imagination. In the Exchequer, be it as you say: but in the King’s Bench no such packing can be proved; no such purposed selection ever yet took place. There, at least, all is simplicity; there, all is purity.”

Thus far my objector. But, could even any such negative be demonstrated, still the reasons for the pulling down of all jurypacking offices—for the complete abolition of the guinea trade—for the disbanding of this standing army—this noble army, not of martyrs but of martyrizers—would not lose any thing of their force. Down to this day nothing of the kind has been done. Be it so: but why? Because down to this day nothing of the kind has been necessary. Come tomorrow, and the necessity may come along with it: and so sure as the necessity of the practice comes, so sure the practice comes along with it.

Convenience—slight convenience—has long since sufficed to establish the practice in one judicatory, the Exchequer: and the united forces of self-preservation and vengeance, will they not, in case of need, suffice to establish the same practice in the King’s Bench?

In the King’s Bench, as well as in the Exchequer, the officer, whose practice is thus open to suspicion, actually exists: by him the selection is actually made—made in every individual instance: by him, whether he will or no, a certain quantity of information, relative to the characters and dispositions of the individuals, out of whom he has to choose, is possessed. Thus much is matter of notoriety: and the only proposition, liable to be made a question of, is—whether, in the view of gaining additional information, it be likely that, in case of need, he or those whose interest in the business is more immediate—for example, in a state libel case the solicitor of the crown—will seek for it at the hands of the correspondent officer of that other court, in which the opportunities of obtaining that sort of information are more abundant.

To such a question, can there be any other answer than this? If, of the sort of information in question, there be, in the judgment of those whose interest it is that the judgment be correct, a deficiency in the King’s Bench, to that other court, and that office in it which is best able to supply the deficiency, application will accordingly be made. If no such deficiency, then no such application.

But, if in the King’s Bench there be no such deficiency, then so it is that, in the King’s Bench, the mischief in question exists already in its full force.

In a cause in the Exchequer, inquiry at the hands of the officer by whom those jurors are selected, it is in the books of practice stated (we have seen) as being, on the part of the solicitor on each side, a matter of duty, regularly recurring, and regularly fulfilled. That which, in the Exchequer, it is matter of duty to the solicitor to be inquisitive about, can it, in the King’s Bench, be matter of duty to him not to know?

In the Exchequer, the permanence being, by the chief judge, avowed and justified, the selection—in a word, the packing—without which the permanence could not have been established—is thereby avowed and justified along with it. Of the matter of justification which, in the judgment of the chief judge, is, in the Exchequer, so conclusive, is it credible that there should be any deficiency—and in a case of libel law too—in the King’s Bench?

To confound social order—to destroy the characters of all public men—to defame the justice of the country—to bring government itself into hatred and contempt—Conspiracy to do all this and more—necessity of defeating it:—Ferment raised by wicked and artful men—necessity of allaying it:—Respect for every thing that is respectable, on the point of being shaken off—necessity of fastening it on. All these topics—with a thousand others equally conclusive—all of them in such well-exercised and skilful hands—can they fail of furnishing argument enough, to justify the adopting, in one court, a practice, which, with so complete a success, has so long been established in another?*

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Were it possible that, for such unction, the cruise for example, of Mr. Justice Grose’s eloquence should ever fail—fail when addressed, if needful, to his own subordinate—addressed Edition: current; Page: [104] in form to none but the culprit libeller, who for his better instruction in the art of decorum, is about to be sent to school for a few years at Dorchester or Gloucester—addressed in form to none but this one scholar, but moreover in effect to the master packer, who is sitting under the head master all the while—were it in the nature of things that such a fountain should run dry, is not the eloquence of Mr. Bowles, published and to be published, or even though it were not published, always at command?

Thus, then, in respect of law and practice, in the field of libel law, and in respect of the liberties disposed of by it, stands the result. In a case (let us now return to abstractions) in which the personal interests and passions of the judge, or of any of his closest connexions, are most deeply affected, the selection of the individuals, by whom, in the character of jurymen, a check is supposed to be constantly applied to the power of the judge, is as constantly in the power of the very person or persons, to whose power the authority of these assessors is supposed to operate as a check: and this with the fullest and freshest information, not only of their characters and circumstances in every respect, but also of their disposition in relation to this, as well as all other points of judicature that come under their cognizance.

If this statement be correct, what are jurors, in all such cases, but mere puppets?—jury-trial, but a solemn indeed, but disastrous puppet-show? The judge but showman, who, with the intervention of a system of machinery more or less complicated, moves the wires: the judge, who in the sort of case in which his interests and passions are most deeply affected, is in effect judge, sole judge, in his own cause.*

I spoke of decorum. Yes, it is for breaches of decorum that, under a judicatory thus constituted, libellers (and who is there that is not a libeller?) have so recently been crushed by punishments of such unexampled rigour: for a libel on the king, imprisonment for two years: for libels on judges (and let not the climax pass unnoticed)—for libels on judges, parties and judges in their own cause—imprisonment for three years, with et cæteras:—imprisonment to the destruction of livelihood in a scene of secluded penitence. Nor Edition: current; Page: [105] let this be unremembered—viz. that in the most recent of those cases, perseverance—perseverance in this novel track of rigour—is announced.*

“But, under libel law as it stands—and now that the punishment awaiting a delinquent is understood to be thus destructive,—can you really regard it,” it may be said, “a probable event, that a special jury of Englishmen (who cannot, all of them, be supposed to be regardless of English liberties) will persevere in pursuing a course which, in your view of it, would be so completely destructive of English liberties? For admitting that, under the influence of a sinister interest so constituted, obsequiousness will carry a man a certain length, it follows not by any means that, to the sinister effect of such influence, there should be absolutely no limits. Even from persons thus unhappily exposed to temptation, can depravity, such as that would be, be seriously to be apprehended? In English bosoms is there no such sense as a sense of shame . . . . ?

I answer—that, to destroy the de facto liberty of the press, as completely as the de jure liberty of it has for ages been destroyed, there needs not any sort of conduct, to which any such word as depravity, or anything like it, is wont to be applied:—in a word, that there needs not, on the part of any one individual breathing, anything which any man can reasonably be expected to be ashamed of.

But, for the reader to be the more effectually impressed with the truth of this proposition, three other matters of fact present themselves as necessary to be borne in mind:

1. That, with libel law in its freshest state—the state in which it is declaredly ready and about to be enforced—enforced by punishments, the rigour of which has just been brought to view—the existence of a de facto liberty of the press, in any sense in which it is capable of operating as a check to misconduct in any shape, on the part of public men, is perfectly incompatible: I mean if the intentions, declared as above, be, with any tolerable degree of steadiness and consistency, pursued.

2. That, by the mode in which judges are in use to direct—and, without exposing themselves to reproach, or so much as complaint, may for ever continue to direct juries, it is rendered difficult, to a degree of hopelessness, for a jury, without setting its face, in a style of marked opposition, against the opinion of the judge, to avoid convicting a man as for a libel, be the paper of a sort ever so necessary to the preservation of English liberties.

3. That, the fixation of the punishment not lying within the province of the jury, no consideration grounded on its magnitude, can operate in such a manner as to afford, to the publisher of any, the most meritorious composition, any chance of acquittal at their hands.

A small sample of libel law, in its freshest state, will form the business of the next chapter.

CHAPTER IX.: INSTRUMENTS FOR CRUSHING THE LIBERTY OF THE PRESS.

§ 1.: Doctrines and Rules.

A view of libel law as it is, confronted with a view of what it ought to be, is destined for a separate publication: slight, indeed, and consequently imperfect and inadequate, is the only view that can be given of it here. But, without something under this head, of the most fatal of all the effects of the packing system—of that, in comparison of which all others put together are as nothing—not any even the slightest conception could have been conveyed.

Even the slight sample or two, which have incidentally presented themselves, may have been sufficient to induce a suspicion, and that not a light one—that the treatment which, under the notion of law, has been given—and at this moment is ready to be given—to Edition: current; Page: [106] the press, is, if persevered in with any tolerable degree of steadiness, incompatible with every political—not to say moral—use of it.

A fundamental sophism, from which every other rule, doctrine, or maxim, draws its mischief, is one that, from having never been announced in words, is not the less, but the more, mischievous. It consists in confounding on this ground demand for punishment with demand for disapprobation: or, what comes exactly to the same thing, assuming, that the one being established, the other follows of course. “Is this proper? Is this decent? Is this endurable?” Ask the orator. Reinforcing at every step the intensity of the disapprobation which the appeal thus made to the passions is calculated to call forth: at the same time, in whatever degree, if in any, that hostile sentiment be actually called forth, verdict of guilty is the verdict, the necessity of which is thus constantly assumed, and which by the delusive force of the assumption is but too constantly produced.

Reducing this notion to a determinate proposition, with a correspondent practical rule, let us add to it a few others, expressive as far as they go, of the actual state of libel law: stating, under the head of each, the documents from which it has been deduced. Taken together, they will suffice, it is apprehended, to establish—and with a degree of evidence sufficient, at least, to the present purpose—that, under libel law as it is, prosecution and conviction are the same thing: and that, when a political libel is the offence, the form of jury trial is but a melancholy farce.

1. A written and published discourse is a libel, and every person who contributes to the communication of it, punishable in respect of it, if there be to be found in it any passage or passages, the tendency of which is, in any degree, to expose government, i. e. any member or members of the governing body—considered in that character—to “disesteem.Rule—Punish whatever tends to bring a man in power into “disesteem.

2. — or, in relation to any person in any high situation, affording any inference, representing him as ill-placed in it, and questioning his fitness for it. Rule—Punish whatever imputes unfitness to any man in office.

3. — or which has had, or has tended to have, any such effect as that of “prejudicing,” “hurting,” “injuring,” or “violating,” the feelings of any individual:” more especially if his “situation” be a “high” one. Rule—Punish whatever hurts anybody’sfeelings.

4. In any written and published discourse, whatsoever passage constitutes just cause for dislike, constitutes just and sufficient cause for punishment. Rule—Punish whatever you dislike.

As to the grounds of these doctrines and these rules—viz. the grounds relied on as constituting the warrant for regarding the doctrines as having by competent authority been delivered, and the rules as being by like authority about to be pursued, they are taken from the report, as published in Cobbett’s Weekly Political Register, for the 2d of June 1808, of the trial in the cause entitled “The King against Cobbett:” being an information filed ex officio by the Hon. Spencer Perceval, his Majesty’s attorney-general, against the defendant, “for publishing, in the Weekly Political Register, of the 5th of November, and the 10th of December 1803, certain libels upon the Earl of Hardwicke, Lord Lieutenant of Ireland; Mr. Justice Osborne, one of the judges of the court of King’s Bench in Ireland; and Mr. Marsden, under secretary of state for Ireland: on which information the defendant was tried in the Court of King’s Bench, at Westminster, on Thursday the 24th of May 1804, before the Lord Chief-Justice, Lord Ellenborough, and a special jury.”

The words of the several passages quoted are copied from that Report.

N. B. This libel is the same, on account of which Mr. Justice Johnson, Judge of the court of Common Pleas in Ireland, was afterwards, to wit, on the 23d of November 1805, convicted in the character of the author, on a trial at bar, in the Court of King’s Bench in England.

§ 2.—: 1. Rule concerning Disesteem.

Proof of the Rule.—Ch. Justice, p. 854.—“It is no new doctrine, that if a publication be calculated to alienate the affections of the people, by bringing the government into disesteem, whether the expedient be ridicule or obloquy, the person so conducting himself is exposed to the inflictions of the law. It is a crime. It has ever been considered as a crime: whether it be wrapped up in one form or another. The case of the King v. Tutchin, decided in the time of Lord Chief-Justice Holt, has removed all ambiguity from this question.”

Thus far the Lord Chief-Justice. While these pages are writing, persons out of number are amusing themselves with rendering what. I hope, appears to themselves, at least, good service to the country, by complaining of abuses, which to them appear as if existing in the government of it: and, to some at least of these persons, these abuses appear to have swelled to such a magnitude, as that nothing short of an alteration in the mode of representation in parliament, can operate as a sufficient remedy. Have or have not such proceedings, and such publications, a tendency not only to “bring the government into disesteem,” but “to alienate the affections of the people” from something or other—forexample, from a parliament composed as at present? If yes, and if, to any person so occupied, it Edition: current; Page: [107] should happen to cast an eye upon this page, I would beseech him to ask of himself whether a cell in Dorchester or Gloucester jail be or be not a fit abode for him—to consider whether he be in a state of fit preparation for a visit of some years length to either of those theatres of lawful reform—and in what manner accommodation may in the most convenient manner be provided, in those or some other boarding-houses of the same class, for himself and the quantity of company whom he ought to have there.

Another hint to reformers:—Among the situations at the disposal of this noble and learned teacher of the arts of decency and candour—situations, the profit of which helps to constitute that part of his Lordship’s remuneration which is composed of patronage, is one, which, in 1797, produced from £1200 to £1300 a-year,* part of the profit of which consists in the letting of lodgings, for which it is part of his lordship’s occupation to provide lodgers. Amidst the demands, which the execution of the law thus delineated would, if executed with anything like impartiality, be productive of, for accommodations in this and other such schools of reformation, would not forecast suggest the endeavouring to secure some of the most convenient of these lodgings by a suitable retaining fee?

§ 3.—: 2. Rule concerning Feelings.

Proofs.—Ch. Justice, p. 854.—1. . . . “By the law of England there is no impunity to any person publishing anything that is injurious to the feelings and happiness of an individual.”. . . .

2. Ib. “If a man publish a paper, he is exposed to the penal consequences, as he is in every other act if it be illegal; and it is illegal, if it tends to the prejudice of any individual.”

3. Ib. . . . . “The question for your consideration is, whether this paper is such as would be injurious to the individuals, and whether,” &c.

4. P. 858. “It has been observed, that it is the right of the British subject to exhibit the folly or imbecility of the members of the government. But, gentlemen, we must confine ourselves within limits. If in so doing, individual feelings are violated, there the line of interdiction begins, and the offence becomes the subject of penal visitation.”

5. Ib. “If you are of opinion that the publications are hurtful to the individuals or to the government, you will find the defendant guilty.”

On putting together these passages, all out of the same speech—out of the same charge, and that not a very long one—it seems evident enough, that if they mean anything, they mean this—viz. that it is a crime for any man to write anything which it happens to any other man not to like: or more shortly, that if a man publishes what he writes, under Lord Ellenborough at least, it is a crime to write. For, what published book was ever written—and, being written, read—in which somebody or other has not found something or other that he did not like:—in plain language, that he did not like; or, in the language of avenging sentimentality, that was not “injurious,” “prejudicial,” “hurtful,” or “violational?”—add, for further enrichment of the language, vulnerary to him or to his feelings?

And how am I to know whether what I am writing, and meaning to publish, will, or will not, meet with any man to whose “feelings” it will be “injurious,” and so forth? Why, by his prosecuting me or not prosecuting me. And if he prosecute me, what will be the consequence? Why, that I have committed a crime, and must be convicted of course: for if his taking upon himself the expense and vexation of carrying on a criminal prosecution be not a proof that his feelings have been injured, prejudiced, hurt, or violated, nothing else can be. Therefore, as already observed, admit but this doctrine to be good law—(and, coming from the source from which it comes, how can it be otherwise?)—prosecution for a libel is in every case itself evidence that the paper prosecuted for is a libel, and that evidence is conclusive.

The criterion—it must be confessed—the criterion thus afforded, is an extremely simple one. No man can fail—or, at least, no man can long fail—to know, whether he is, or is not, under prosecution. If, then, for anything that I have written, I am not yet prosecuted, what I have written is not as yet a libel: if, for anything in that way, I am already under prosecution, then it is a libel. Such being the criterion, to the noble and learned inventor, nothing—it may well be presumed—can be more satisfactory. But to us without doors, who are as yet out of jail, and who, if we did but know how, had rather continue at large than be locked up in one, is there any and what course left open, for learning, at any earlier point of time, whether this or that article, which it would be satisfactory to us to see made public, will or will not be productive of an effect which to us would be so serious a one.

A high-sheriff, for example, or other chairman, of a county or other meeting, in which a set of resolutions are voted, imputing either “folly or imbecility,” or corruption, to any of those right honourable persons to whom those qualities, or some of them, have of late, in one or other meeting of that sort, been now and then imputed—any such presiding character, though not a “great character,” wishing to Edition: current; Page: [108] give to these resolutions a certain degree of publicity, and at the same time not wishing to pass his time in a prison, though it were for no more than three, or even for no more than two years—what is he to do?

For knowing what, on a given occasion, a man’s feelings will be—or rather, and to come somewhat closer to the point, what on that occasion he will declare his feelings to be—I know of one course, and but one, which is—to put the question to himself. On this principle, to save circumlocutory description, I will venture to submit to the consideration of such gentlemen as it may concern, the form of a Note, which, short and simple as it is, may, it is humbly hoped, be found to be not the less well adapted to the purpose:—

Circular.

Mr.—or Sir—

presents his respectful compliments to Lord Castlereagh, and begs the favour of being informed, whether the “exhibition” of his lordship’s folly, or his lordship’s imbecility, or his lordship’s corruption, should it take place, would be “prejudicial,” “hurtful,” “injurious,” or “violational” to his lordship, or to his lordship’s feelings.” The like to the right honourable Spencer Perceval, &c. &c. &c.

To any such chairman, who, though not “a great character,” will, at any rate, be a distinguished one, should it happen to be apprized of the qualification which, from certain exemplifications (whereof presently*) that have been given of the magnanimity of the said Mr. Perceval, may by implication be understood as being allowed to be, in a certain sense, and under certain restrictions, capable of exempting a man from the lot to which a liberty of this nature would otherwise so justly doom him—should it happen to him, accordingly, to be capable of making the proper responses to the catechism formed by that no less religious than high-born and high-seated gentleman—and in particular to his grand Latin question, Quo patre natus—wrapping himself up in Mr. Perceval’s virtue as if it were his own; what may also happen to him is—to turn aside with disdain from this humble but well-meant endeavour to save him from what it may happen to him not to like. But whatsoever may happen to be the security, real or imagined, of a person so distinguished, the resource may not be altogether beneath the attention of those who, like myself, belong to the undistinguished herd: I mean the printers who propose to print, the booksellers who propose to sell, any such resolutions, as well as the readers, to whom in reading of them it might happen not to take sufficient care to keep their tenor and purport to themselves.

§ 4.—: 3. Rule concerning Unfitness in high Situations.

Ch. Justice, p. 857.—After having, on the occasion of a sentence, mentioned above, undertaken, as above, to enumerate the “libels” contained in that one sentence, coming to that which in this list happens to occupy the second place—“He admits,” says his Lordship, speaking of the libeller—“he admits this noble person” (Lord Hardwicke) “to be celebrated for understanding the modern method of fatting a sheep, as well as any man in Cambridgeshire.”—“Now, gentlemen,” continues the Lord Chief-Justice, “what does this mean? Does it not clearly mean to infer, that Lord Hardwicke is ill-placed in his high situation, and that he is only fit for the common walks of life.”

Thus far the Lord Chief-Justice.—Among the persons just spoken of as being suspected—and surely not altogether without apparent cause—of endeavours used to bring the government into disesteem, I have observed some, by whom declarations have been made, expressive of an opinion—and that, too, pronounced still more “clearly” than in the way of “inference”—concerning Lord Viscount Castlereagh, and the now right honourable Spencer Perceval—the same right honourable person whom we then observed officiating, we have seen how, in the character of his Majesty’s attorney-general—as being respectively somewhat “ill-placed” in one of their “high situations.” After passing eighteen months in prison for one of the two libels thus uttered, and made public, the libellers, of whom I am speaking, are they prepared to pass another eighteen months, in the same place and condition, for the other of these same libels?

Being a man that writes, or even though he be but a man that thinks—whosoever prefers liberty to imprisonment, safety to destruction, “let him think of these things.

To doubt the fitness of him whom the sovereign hath chosen, borders near on sacrilege.

Such is the rule laid down by some learned law-lord, Chief-Justice of the Emperor’s Bench, in the time of the Emperor Justinian—“Sacrilegii eniminstar est dubitare an is dignus sit quem elegerit imperator.” C. ff. 9, 29, 3.

Of the constellation of “great characters” in “high situations,” by whom the rule thus copied, and those others that match so well with it, have been called for and laid down, let any one who dares, and who (to use the words of the Lord Chief-Baron) “thinks it worth while,” say—that they, or any of them, are “ill-placed” in, or “unfit” for, those their respective situations.

Thus much, however, may be a question—though alas! it is but a speculative and barren one—whether, for their own feelings at least, they are not, more particularly some of Edition: current; Page: [109] them, rather unfortunately placed in point of time. In England, in these our days, at this early part of the nineteenth century, their “feelings” are forced to content themselves with comparatively scanty gratifications: gratifications, such as may be afforded, for example, by the spectacle of a judge driven off the bench, and a few years’—as yet no more than a few years’—imprisonment bestowed upon a few paltry booksellers.

And without seeking to send them, or any of them, so far back as to those imperial times from which this rule of theirs was with so much fidelity transcribed, or even of those of our own first Defender of the Faith, who even without the benefit of the act called, in the newspapers, sometimes the cutting act, sometimes the Ellenborough act, enjoyed in the course of his life the deaths of no fewer than 70,000 of his subjects in the character of criminals—had the noble and learned godfather of that law been as free to choose the time as he is the place of his circuits, would not the western circuit, anno 1685, have been a choice more congenial to “feelings” such as his, than any circuit can now be in these degenerate days, ubi pro duritie temporum, as the learned anatomist so feelingly laments, vivos homines dissecari non licet: when, in plain English, such is the hardness, such the ferment of and in the times, that men cannot be found to be cut up alive for the amusement of learned eyes: so that noble lords and honourable gentlemen, who have a taste for torture (understand for witnessing it, not for feeling it,) are reduced to content themselves with such inferior, yet never-to-be-parted-with gratifications, as the agonies of bulls, dogs, cats, and horses can afford.

§ 5.—: 4. Rule concerning Dislike.

Follows a list of qualities, which, on the supposition of their being to be found in a discourse of any kind, have been stated as being of a nature to excite, in the breast of any person by whom it is heard or read, a sentiment of disapprobation or dislike: the existence of which sentiment has, by the chief-justice of the King’s Bench, or by the attorney-general, with the concurrence of the said chief-justice, been stated as constituting a sufficient warrant for pronouncing such discourse (it being consigned to writing) libellous, and for punishing with any number of years imprisonment, besides other punishments, every person who, in any way, has contributed to the communication of it:—

1. Want of fairness. 2. Want of liberality. 3. Flippancy. 4. Deviation from decency. 5. Unbecomingness. 6. Impropriety. 7. Slanderousness. 8. Ill-nature. 9. Want of candour. 10. Tendency to ridicule. 11. Contradictoriness—viz. with reference to matter of opinion advanced by another person.

Follow now the correspondent passages serving as grounds of this doctrine—proofs of the existence of the corresponding rule:—

It cannot with reason, and therefore, it is presumed, it will not be expected, that, on the occasion of every one of these qualities, either the chief-justice, or, under his allowance, the attorney-general, shall, in precise logical form, be seen exhibiting, and re-exhibiting to the jury, an argument in any such words as these—viz. this quality exists in the discourse in question—the quality, and, in respect of it, the discourse, will be regarded by you with disapprobation or dislike—therefore, in consideration of such disapprobation or dislike, even although the discourse should be found to contain no other passage in it, having the effect of exciting, in your breast, the like sentiment, you will regard yourselves as bound to join, in pronouncing against the defendant, the verdict guilty.

That such, throughout, was their intention, may surely be regarded as placed sufficiently out of doubt by the following considerations:

The purpose, and sole purpose, for which, on that occasion, the defendant was brought before the jury, was—that it might be ascertained, whether, in respect of the discourse in question, he was, in the character of a libeller, guilty, and as such punishable. In any other view than that of contributing to this effect, had anything been, either by the chief-justice or the attorney-general, said of the discourse in question, it would have been irrelevant: and not merely irrelevant, but insidious and injurious; having, for its object and tendency, the causing a man to be convicted, as if it were criminal, on account of a portion of discourse which, in their own opinions, was not criminal. Not but that, on several of these occasions, the passage taken for the subject of animadversion is, in express terms, pronounced, by one or other of these official persons, “a libel” or “libellous:”—and since, in this respect, no line of distinction is drawn between any one of the passages so animadverted upon, and any other, it will surely not be regarded by anybody as a question open to dispute, whether, among all these several qualities, and all these several corresponding passages, there were any one, in respect of which it was not part of the design and endeavour, of the official persons in question, to cause the passage to be by the jury reputed libellous, and the defendant dealt with accordingly in respect of it.

The qualities, successively ascribed to the various parts of the printed discourse, and, in respect of which, it is supposed to be the design and endeavour of the spoken speech, to cause the discourses to be considered as libellous, are hereinafter designated and introduced by the words quality or qualities.

The passages respectively adduced to serve Edition: current; Page: [110] as proofs, that, on the occasion of each such respective quality, such was the design and endeavour, are designated and introduced by the words proof or proofs.

I. Qualities.—1. Want of fairness. 2. Want of liberality.

Proof.—Attorney-general, p. 827. “Now, Gentlemen, is there anything in all this that can be called a fair and liberal description of a public character . . . . . ?”

II. Qualities.—3. Flippancy. 4. Deviation from decency.

Proof.—Attorney-general, p. 827. “Gentlemen, I have already adverted to the indecency and flippancy of many expressions made use of in this libel. If this libeller had been hurried away with the temptation of saying a flippant thing, I should not have thought it a subject of criminal prosecution. But, in the case before you, it is criminal, as indicating the spirit with which it was written, and as being descriptive of the mind of the man at the time he was making them. I would not, however, be understood to say, that even in the warmth of discussion upon public men and public measures, decency of language ought not to be preserved, and that any deviation therefrom is not punishable. . . . .” [Here the doctrine in question is directly avowed: by the attorney-general avowed, and by the chief-justice never contradicted: viz. that for every written discourse to which a deviation from decency can with propriety be imputed, a publisher is punishable.]

III. Qualities.—5. Unbecomingness: and again Flippancy.

Proof.—Attorney-general, p. 820. “Surely no one who has the least liberality of feeling, could think it becoming to taunt such a gentleman as Mr. Addington.” [Taunt him, viz. by naming him by his father’s title.] P. 828, “I again say, that for any publication calling Mr. Addington, Doctor Addington, or any flippancy of that nature, standing by itself, I should think it beneath the dignity of that right honourable gentleman to make it the subject of a prosecution.” N. B.—Beneath his dignity only, not above his power. Learn we hence, that if at this moment there exists out of a jail any such person as a newspaper editor, or a political writer, on any other than one side, it is owing to the joint magnanimity of “such a gentlemanas Mr. Perceval, and “such a gentlemanas Mr. Addington.

IV. Qualities.—6. Impropriety (as intimated by the word ought.) 7. Slanderousness. 8. Ill-nature.

Proof.—Attorney-general, p. 829. After speaking of divers passages in which Lord Hardwicke had been spoken of as being “a good father, a kind husband, fond of literature, and agricultural pursuits—” “Qualities like these” (continues he) “ought to have made the libeller pause, before he ventured to attack such a chahracter.” . . . . . . “Gentlemen, you must shut your eyes—if you do not see that these amiable qualities are attributed to Lord Hardwicke, with a slanderous, with an ill-natured meaning.”

V. Qualities.—9. Want of candour.

Proof.—Attorney-general, p. 830. “Will any man believe that there is any degree of candour in saying, that all that has been done by the British government for Ireland, is to send them a sheep-feeder from Cambridgeshire, and a strong-built chancery-pleader from Lincoln’s-Inn, when I tell you that . . . . Ireland . . . . is defended,” &c. &c.

Learn we hence, that whatever “degree of candour” there may happen to be in any given discourse, it is in the power of the honourable Spencer Perceval—(but whether in his character of Spencer Perceval, or in his character of attorney-general, that we are left to learn as we can)—at any rate in the power of somebody—and the safest conclusion seems to be, in the power of any and every man that is in power—to divest the discourse of such its candour, and thereby subject the author and publisher of it to punishment: and this by so easy a process as “telling” the jury anything that shall have the effect of a contradiction to this or that part of the discourse.

On this head, not a particle of Mr. Attorney-general’s law, howsoever objected to (as we shall see) by the defendant’s counsel,* is dissented from by the Chief-justice: on the contrary, from what immediately follows, let any man judge, whether, by implication at least—by necessary implication—it has not the whole of it, been confirmed.

VI. Qualities.—10. Tendency to ridicule.

Proof.—Chief-Justice, p. 849. Upon the above and other passages, the observation of the defendant’s counsel (Mr. Adam) had been, p. 842, that “if the doctrine so laid down were admitted . . . . the freedom of discussion, relative to public men and public measures, would depend—not upon a point of right, but upon the taste of the attorney-general:” and that “the controul which the attorney-general is” [thus] “desirous of putting upon it [the liberty of the press] would go to extinguish it for ever,” p. 842.

“Ridicule,” he had afterwards contended, p. 849, “is a weapon which may be fairly and honourably employed, especially when it is in the true spirit of English humour, and for an object purely of a public nature.” After speaking of the nick-name of Carlo Khan, formerly given to Charles Fox, and the print of a colossus, comprehending all Scotland within the stride of its patronage—when, after adducing these examples, he goes on to say, “Lord Hardwicke is again represented Edition: current; Page: [111] as devoted to agricultural pursuits.” . . . . he finds himself thus interrupted by the Lord Chief-Justice—

“Do you maintain that a person has a right to ridicule his neighbour?”—Mr. Adam.—This is an information for a public libel, and not for private ridicule. Lord Ellenborough.—“I suppose you have some authority. I do not wish to restrain your arguments, but it is a doctrine which never was, and never can be, maintained.

VII. Qualities.—11. Contradictoriness; viz. when manifested, in terms of a certain degree of strength, towards some proposition or propositions, that have been advanced by some one else. [N. B.—In the instance in question, it was a mere matter of opinion, relative to the state of the nation: not any specific matter of fact.]

Proof.—Chief-Justice, p. 856. Afterwards, in his charge, speaking of one of the sentences in the paper, his Lordship says, p. 856, “Now the libels in this sentence are these”—thereupon, coming to one of them, he proceeds, and exclaims, “Is it to be endured, that it should be said of any person, but more especially of a person sitting in the capacity of a judge, that he had poured a broadside upon the truth of the fact?”—N. B. Sitting in the capacity of a judge. Yes: so the judge in question, Mr. Justice Osborne, was: but how? not hearing a cause, but haranguing upon politics.

The disapprobation excited by this expression, in the bosom of our Lord Chief-Justice, was, it seems, of such a strength as to be past endurance. A similar, if not exactly equal, sentiment is what he assures himself of finding prevalent, in the bosoms of the jurors (the guinea-men,) to whom he is addressing himself: and on this sentiment it is that he relies as sufficient of itself to entitle him to expect, at their hands, a verdict of “guilty,” enabling him to subject the victim to any number of years’ close imprisonment in a scene of solitude.

The word “fiction” will of itself suffice to satisfy any person, who can endure to look into Blackstone’s Appendix, with the corresponding chapters, in this view, that in the universal scramble for fees, of which the jurisdiction of the Westminster-hall courts in its present state is the result, the war was carried on in no other manner, and by no other arms, than by broadsides, which then were, and still continue to be, “poured upon the truth of facts.” If, then, anything like consistency were to be expected among persons in such “high situations,” so far exalted above all need of consistency, and all fear of shame, long ago would every man, who has ever vended, or in any other way contributed to the dissemination of the contents of Blackstone’s Commentaries, have been prosecuted by the Hon. Spencer Perceval, and convicted, as of course, by one of Lord Ellenborough’s juries.

Signing a notorious falsehood—is this pouring a broadside upon fact? If so, is there a term, in which broadsides are not poured upon facts by hundreds, not to say thousands—poured by the very hand of this very judge, (with fees for the same) or to his profit, and under his orders?

By the smoke of these broadsides, have not the paths of judicial procedure been converted into—what they were meant to be converted into—a jungle, penetrable to the eyes of tigers, impenetrable to the eyes of suitors, who, such of them as do not perish in it, are dragged through it?

Before he was what he is—this noble and learned Lord Chief-Justice—was he not an advocate? Does not the occupation of an advocate consist in pouring broadsides upon the truth of facts—of whatsoever facts are set up for him as a mark by the attorney, who brings him his brief with this or that number of guineas marked on the back of it?

Was not he a special pleader? Knows he not what a sham plea is?

The distinction between the cases in which falsehood is either allowed of or compelled, and those in which it is made punishable, had it ever—has it to this day—any better object, than the enabling well-paid marksmen to pour broadsides upon the truth of facts? (Scotch Reform, Letter I. Device 10. Mendacity-licence.)

What is endurable—yes, and endured, and with as much complacency as if vice were virtue, and falsehood necessary to justice, is—that by these guardians of public morals, broadsides should be poured without ceasing—poured upon the truth of facts:—what is not endurable, is—that they should be told of it.

Decency and candour! What important words! How necessary is correctness to the conceptions which it may happen to a man to have annexed to them! What is there that does not depend upon it? Open one report more, which shall be quoted presently, and you may see the whole fabric of English liberty hanging upon the import of these two sounds. Note well the fineness of the hair: observe well the thinness—the mathematical thinness, or rather phantasmagorical tenuity of the partitions, which at this hour divide liberty from thraldom. Observe how pleasantly the hair, if not sufficiently cut through already, may be cut through at any time; nobody, but those employed in cutting it, knowing or caring anything about the matter.

(Campbell’s Nisi Prius Reports, Easter Term, 48 Geo. III. 1808, p. 359, Rex v. White, and another, London sittings after Easter Term, 48 Geo. III. Before Mr. Justice Grose.)

Edition: current; Page: [112]

Information (ex officio) “by the Attorney-general against the proprietor and printer of a Sunday Newspaper, called The Independent Whig, for a libel upon Mr. Justice Le Blanc, and the jury before whom the captain of a merchant ship had been tried for murder at the Old-Bailey . . . . .

Grose J. said it certainly was lawful, with decency and candour, to discuss the propriety of the verdict of a jury, or the decision of a judge; and if the defendants should be thought to have done no more in this instance, they would be entitled to an acquittal: but on the contrary, they had transgressed the law, and ought to be convicted, if the extracts from the newspaper set out in the information contained no reasoning or discussion, but only declamation and invective, and were written not with a view to elucidate the truth, but to injure the characters of individuals, and to bring into hatred and contempt the administration of justice in the country.”

“The defendants were found guilty on this and a similar information, and sentenced to three years’ imprisonment.” Thus far the reporter. The similar information was for a similar libel on Lord Ellenborough, the Lord Chief-Justice.

You, to whose imagination any such imprudent fancy should at any time present itself as that of taking for the subject of free “discussion,” under favour of any such licence, as above, the “decisions,” or the conduct of an English “judge,” would you know whether the expressions that have presented themselves to your pen are consistent with the rules of “decency and candour?” Go to the house of penitence at Dorchester or Gloucester—repent there for three years, or any such increased number of years, as for the allaying of the increasing ferment shall have been deemed necessary*—repent, and when your course of penitence has there been run through, perhaps even at the commencement of it, when beyond hope of mercy, it has by your sentence been announced to you—then it is that you will be informed, and know all that it is intended you shall know. And what is that? Not by what means those rules may, in all cases, be observed, but by what means, in one instance, they have been violated.

Behold then, in the King’s Bench, the royal school of decency: a school, the discipline of which has however this to distinguish it from ordinary schools—for example, from the other royal school within view of it—viz. that whereas, in Dr. Carey’s school, instruction comes first, and then, in case of transgression, if the transgression be wilful and perverse, perhaps correction afterwards,—stripes, say half a dozen: in Lord Ellenborough’s school, correction, or, peradventure, under the name of correction, destruction, comes first; and it is from this correction or this destruction, that, for the first time, and without the possibility of learning it from any other source, or at any earlier period, the scholar derives the satisfaction of learning how he ought to have behaved himself.

§ 6.: Terror issuing from the Darkness of the Doctrines.

If, by competent and acknowledged legislative authority, and in and by any determinate assemblage of determinate words, such as are the words of every act of parliament, maxims, even such as those that we have been seeing, were consigned to writing and established—established though it were in these very words—the very words that we have just seen—the condition of Englishmen would be a condition of security, in comparison of what it is at present.

But by no such authority, in no such determinate form of words, has this part of the rule of action as yet been, or will any part of it ever be, established and fixed, that Judge and Co. are able to prevent from being thus fixed.

Under such law—(the abuse here made of the term law must be tolerated, for it is inevitable)—under such law, security may be talked of, and even fancied, but, for any man who either publishes a newspaper (not to speak of pamphlets,) or contributes to the communication of its contents, security itself cannot, with truth, be said to have existence. Thus much for actual danger.

Now as to alarm—terror—the inseparable consequence of opinion of danger, on this as on every part of the field of law, in which the legislator—dupe or accomplice of Judge and Co.—has refused to act, fear makes law, as among the heathen it made Gods.

The Lord Chief-Justice of the King’s Bench—would he think this “decent? becoming? proper?”—would he “endure” it? Might not his “feelings” be “hurt,” wounded, “violated,” “prejudiced,” or “injured” by Edition: current; Page: [113] it? Mr. Attorney-general—Mr. Chancellor of the Exchequer—the First Lord of the Treasury—any of the “great characters”—their high situated connexions—any one of these exalted persons, to whose ear a rumour concerning any part of the contents, or of the supposed design, of this or that passage in my projected pamphlet, should happen to have found its way, may it not happen to them, or any of them (Mr. Attorney-general excepted) to intimate as much to Mr. Attorney-general; in which case prosecution may, and, if prosecution, conviction and perdition will, to a certainty, be my doom. To publish, or not to publish? To write, or not to write? Of this sort will be the question, which, under the darkness visible at which we have been taking a glance, any man, into whose mind any such speculative, theoretical, and jacobinical conception should have entered, as that of attempting to bring to light any abuse, the theatre of which is to be found in any part of the system of judicial procedure, will of course be tormenting himself. The answer will be determined—partly by the incidents which chance has presented to his notice, partly by the strength or weakness of his nerves.

In this state of law, bribery excepted, among those which concern the administration of justice, exists there that enormity which a judge—I mean an English judge, one of the legislating twelve—by committing, or even by confessing, would expose himself to any the slightest danger—I do not say of punishment—the supposition would be too extravagant—but so much as of any expression—any the faintest expression of regret—such as majorities know so well how to frame—that it had not been otherwise? Confessing, would he obtain credence?

Not long ago comes out a newspaper, announcing a series of letters, to be addressed to the Lord Chief-Justice of the King’s Bench:—letters, which were to have presented to his lordship’s notice abuses upon abuses, the scene of which was to have been laid in his lordship’s court, or in which, at any rate, practitioners in that court were to have been represented as actors. In the character of an introduction, the first of the announced letters crawls out:—no other follows it.—Whence this sudden death? That which history refuses to disclose, must be supplied by another hand. Between the first letter and the day which should have brought forth the second, in the hour which should have been that of repose, the pillow of the publisher receives a shake, the united curtains separate, and behold! at the bed’s feet a grisly spectre—wrapt up in clouds of artificial hair, ill concealing the streams of gore which are seen issuing from wounded feelings. In its uplifted hands is displayed a terrific scroll, exhibiting a plan and elevation of each of the two lately consecrated abodes of sequestered penitence, with Mene tekel and Utrum horum in flaming capitals, garnished with fragments of sentences about contempt of government, high situation, et cætera, and so forth, scrawled upon the walls.

After such warnings—and where is the literary pillow that is not visited by them?—suppose for argument’s sake—and it is only for argument’s sake—suppose Lord Ellenborough to have done any of those things which Lord Macclesfield, or even any of those things which, alas! Lord Bacon did before him—suppose him to have squeezed clerks as Lord Macclesfield did masters:—suppose him, like Lord Macclesfield, to have sold places under himself which it belonged to him to check—or (supposing it moreover unlawful)—suppose him, instead of selling them to a disadvantage, to have listened to the suggestions of a more improved economy, and pocketed the whole profit in the lump.

Suppose—but what end would there be to such suppositions?

In such a state of things, among those elected guardians of justice, if any such there be—to whom economy, so displayed, and on such a theatre, would appear a fitter object of reform than imitation or confirmation, is there any one that would hear of it?—is there any one that, in print at least, would tell of it? Not unless a situation in Gloucester or Dorchester jail—and that a safe and permanent one—safe as safe-custody could make it—permanent as a lease for years could make it—had become the object of his choice.

This, then, is among the effects—and is it not among the uses—not to say the objects—of libel law?

The purity of the Bench an article—a fortieth article—in the creed of Englishmen:—orthodoxy, on this ground, even where unpaid, universal. Yes: but behold the cause of it.

Such being the bar opposed to beneficial discovery by universal terror, suppose it broken through at all, by whom will it have been broken through? By the candid, the correct, the moderate? Possibly;—should haply these virtues be found at any time in company with almost unexampled fortitude. But how much more likely by the uncandid, the incorrect, the violent? Vices like these, when exemplified in the supposed libel, have they, or have they not, any such effect as that of enhancing the mischief, if any, which is liable to be produced by it? The answer is not altogether clear: but, at any rate, it is on the supposition of the affirmative, that the proportions, generally given to the intensity of invective, seem to be grounded.

But it is truth, not violence, that has been Edition: current; Page: [114] the real object of terror and hostility, to the creators and preservers of English libel law: and thus it is, that while, under the spur of indignation and desperation, violence and exaggeration burst forth, truth—gentle and simple truth—remains at the bottom of her well, without daring to peep out.

CHAPTER X.: WANT OF ADEQUATE OBSEQUIOUSNESS MORALLY IMPOSSIBLE.

§ 1.: Obsequiousness found unavoidable by a veteran Advocate.

In any published written discourse, taking for its subject the propriety of public measures, or of the conduct of public men, whatever merits disapprobation, presents an adequate demand for punishment. This principle being either expressly laid down or assumed, and juries habituated to accede to it, and act in conformity to it, it seems not very easy to conceive what that published discourse can be, to which, if written on any such subject as that in question, a jury, even though it were not a draught from the select and secret qualified list, would, on any tolerable ground of probability, be expected to refuse to attach a verdict of conviction. Yes: if so it be that, in the alleged libel that lies before them, there be not one of them that can find an expression or a word which he feels himself disposed to disapprove: viz. neither on any such score as decency, or liberality, or candour, or propriety, and so forth, as above:—and what if he can not? Only that in that case, for supporting a verdict of conviction, then some other ground must be looked out for, of which, while such doctrines as have just been seen are acceded to, whether it be possible there should be any deficiency, the reader may now judge.

If, in the event of his entertaining, in relation to any passage thus brought under his review, any such emotion as that of disapprobation or dislike, it would afford to his feelings any gratification to be contributory to the subjecting the delinquent to punishment, in such case, whether a juror will not find, in these established doctrines, an amply sufficient warrant, for the affording this gratification to the irascible part of his frame, may be seen already.

But, whether inclined or not inclined, will it be in his power to avoid it?—In his power? physically or metaphysically speaking, yes:—but, to keep clear of metaphysics and every thing that ends in—ism, practically speaking—whatever be the state of a juryman’s inclinations, can there, for any proposed writer on politics or legislation, which is as much as to say for any proposed libeller—can there be any rational hope or prospect, of witnessing, on the part of any such juryman, any such forbearance?

The degree of probability in question cannot, it is evident, but be, in a high degree, influenced, even if not in one event converted into moral certainty, by the mode of address pursued by the directing judge: by the degree of freewill which it may please this creator to have left or not left to his habitually obedient creatures. To learn, if possible, a thing so necessary to salvation, let us open the book of history, that in it we may behold the words of prophecy, and read in it the eventual doom that is in store for us.*

“No question is made,” says the Lord Chief-Justice, “as to the publication itself being a libel:”—the fact is incontestable, but the cause, what can it have been? The inquiry is a curious one: and in the answer may be seen a confirmation of the moral impossibility of any verdict other than that of guilty at the hands of a jury of guinea-men, not to say of any men, so directed.

On the trial of the other defendant, in regard to some parts at least, if not the whole, of this multifarious libel, a “question” of this sort had, as we have seen, been made: made, and by the same learned gentleman, who, after having been leading counsel for the political writer, officiated now in the same character for the culprit judge. The question having been made then, how comes it not to be made now?

On that former occasion, the authority which the learned counsel had to contend with, was no other than that of a single judge: on this present occasion, the authority before which he has to plead, is that of the entire judicatory:—-a Edition: current; Page: [115] judicatory, composed of four judges, of whom the judge in question, though in authority the chief, was in number no more than one.

“Do you maintain that a person has a right to ridicule his neighbour . . . . ?”

In the report given of this trial, the words pronounced by the noble and learned Lord Chief-Justice are reported, or professed to be reported, by the reporting scribe:—the tone, the countenance, the deportment, by which the interruptive interrogation was accompanied, were not—any of them—nor could they have been—included in the report.

Whatsoever was the cause—whether an acquaintance with the persons and dispositions of the guinea-men to whom the defence would have been to be addressed—a consciousness that under such direction obsequiousness was a virtue not confined to the jury-box—or a casual deficiency of nervous power, such as learned advocates for liberty, no less than the unlearned, are liable to—or that, even where there is nothing dangerous, there is something unpleasant, and to polished feelings, grating, in kicking against the pricks, and pressing against the feelings of official superiors, whose countenances are day by day to be encountered—so it is that there being, according to the learned counsel’s own statement at least, nothing more at stake than “the liberty of the press”—that liberty which, as he had observed, “has ever been held as one of the first principles of the constitution”—nor from the doctrines, against which, on that former occasion, he had with so little fruit been contending, any worse effect to be apprehended, than the extinguishing of “that liberty for ever”—whatsoever may have been the cause of the abandonment, so it is that before this reinforced, and de jure at least superior, judicatory, the contest was not renewed.

§ 2.: On the part of a trained Juryman, Unobsequiousness still more hopeless.

But, if such was the no-resistance made by a sturdy veteran,—possessing, too, in the plea of professional duty, an excuse such as might have been expected to disarm resentment, call forth sympathy, and edulcorate feelings in the bosom even of the most obdurate judge—what, under such direction, could have been or ever can be—expected, for the relief of a defendant libeller, or for the preservation of the about to be “extinguished liberty”—what, I ask, can, to any such purpose, be, with any the least colour of reason, expected, from the firmness—let us not say of the craving guinea-man, who, in one unacceptable verdict, beholds the extinction of the race of his expected guineas—but of any gentleman habituated (as by the discipline of the Blackstone school all gentlemen are habituated) to regard in every word that cometh from the mouth of one of the reverend and learned twelve, the rule of legal faith—the unerring standard of rectitude?

CHAPTER XI.: SUCH JURIES WORSE THAN NONE.

§ 1.: Star-Chamber preferable to a covertly-pensioned Jury.

To a mixed tribunal, containing, along with the judge, a jury thus constituted, and thus directed, two other tribunals, each of them more simple in its composition, might, in cases of libel law, so long as libel law stands as it is at present, viz. without any determinate set of words for the expression of it, be substituted (it should seem) and with no inconsiderable advantage to liberty and justice.

1. One of them is—a Star-Chamber: in a word, the ancient judicatory of that name, revived, with or without amendments.

It was in that judicatory that libel law, as it stands at present, received its form and tenor: viz. in so far as form and tenor can be attributed to a species of law—viz. unwritten, alias common, alias judge-made law—of which the essential character is the not having any tenor at all belonging to it, nor consequently any purport of any such solidity as that certainty and safety can be built upon it. It was in that judicatory that the earliest cases extant—being those which, in the character of the foundations of libel law, are continually referred to—were determined.

Of that transcendent judicatory, the acknowledged fruit of which was “the keeping of all England in a state of quietude,” pure of all fermenting matter, one great advantage was the being composed altogether of persons in “high situations”—“great characters”—whose greatness, so long as it pleased the fountain of all greatness, was placed out of all danger of failing, being fixed by office.

Though, under special jury law, it does belong to the defendant to choose, out of 48 persons fixed by a very different choice, by what 12 he shall not be tried, it does not, under any law, belong to a defendant to make choice of any of the judges by whom he shall be tried. But, for my part, supposing, for argument’s sake, that it rested with my choice, more willingly would I be tried, and (being of course convicted) sentenced, by a Star-chamber composed of the same great characters as heretofore, than, under such direction, tried before a jury, of whom it should happen to me to know thus much and no more—viz. that they were so appointed and so paid:—a sentence all the while awaiting me from such a source, and of such a nature, as by the Edition: current; Page: [116] examples that are under everybody’s view, has been rendered so intelligible.

In the case of the libel in question—the libel composed of the letters signed Juverna—the “great characters,” mentioned in the title of Mr. Cobbett’s trial as objects of that libel, are “the Earl of Hardwicke, Lord-Lieutenant of Ireland; Lord Redesdale, Lord High Chancellor of Ireland; Mr. Justice Osborne,” (the alleged “pourer of broadsides”) “one of the judges of the court of King’s Bench in Ireland; and Mr. Marsden, under-secretary of state for Ireland.”

To these may be added—as so many persons, over whose wrongs a veil had been drawn, partly by their own magnanimity, partly by that of “the Attorney-general of our present Sovereign Lord the King, who for our said Lord the King was then and there in that behalf in his proper person prosecuting,” (and on such an occasion what more proper prosecuting “person could there have been?”) viz. “the honourable Spencer Perceval,”—“the Hobarts,” (meaning, doubtless, the then commonly called Lord Hobart, now properly called Earl of Buckinghamshire)—“the Westmorlands,” (meaning the then and present Earl of Westmorland)—“the Camdens,” (meaning the then and present Earl Camden)—and the then right honourable Henry Addington, now Viscount Sidmouth, and in the said libel so “unbecomingly taunted” by being called by the title of his father “Doctor Addington.

The purpose for which this constellation of great characters is here introduced, is no other than that of saying, that it being, by the supposition, my misfortune to be under prosecution for a libel against all those several great characters—and at the same time my advantage and privilege to have, for my trial and sentence, the choice of a star-chamber, in lieu of a jury so constituted and directed as aforesaid—my choice would be in favour of the said star-chamber: and this, even supposing the constitution of it to have received this—I know not whether to call it confirmation or amendment—to wit, that of its being composed, in the character of judges, of the very same persons, neither more nor fewer, as those whom, by the hypothetical and argumentative mention thus made of their names, it may, for aught I know, at a time when to write is to write libels, have already happened to me to have libelled.

Neither caprice nor rashness dictated the choice thus made.

Judging thus openly and avowedly in their own cause—executing the operation of conviction and punishment, at the same time and with the same hands—this apparent, as well as real union of functions, at present so erroneously supposed to be disjoined, would be sufficient to point towards them the attention of the public eye: weak as every check must be, the action of which is to be conveyed up into so high a sphere, some check, and that a real one, they would have: whereas, in the existing case, while the phantasmagoric vision of a check displays itself, of the reality no signs have ever yet been visible.

§ 2.: A Jury-less Judge preferable to a covertly pensioned Jury.

2. The other sort of judicatory to which, in my own case, as above, in comparison with a jury so constituted and directed, I should not hesitate to give the preference, is a single-seated judicatory, consisting of a judge, without a jury: and this even without excepting the noble and learned judge, under whose direction the jury-box, for the reasons already so distinctly stated, would, in my mind, oppose so insuperable a bar to hope.

To those, if any such there be, to whom an object of such inconsiderable importance as the actual state of judicature, when delineated by so obscure a pen as the present, may have already presented itself to view, the considerations by which, in the character of reasons (see Scotch Reform) this choice is dictated, will, if not already brought to view, at any rate be sufficiently apparent—it being, in one word, of the nature of responsibility (in the burthensome sense of the word) to go on diminishing ad infinitum, in proportion as the number of those who are sharers in the burthen is increased: not that from the same learned judge, by whom the jury would, in the case supposed, be directed, and of course directed to convict me, I could, as far as conviction goes, entertain any rational expectation of any better fate. But, the fate of the defendant being, in the case supposed, placed so manifestly as well as completely in his hands, what in that case I should hope for is—some mitigation in the rigour of my sentence. Not that, by the non-existence of a jury—not that, by a circumstance so completely foreign to the consequences and tendency of the offence—any defalcation could be made from the real demand for punishment: but that, in some way or other, more readily felt than described, the like effect might, in some degree, be produced by prudential considerations.

“You have had a fair trial: you have been tried by a jury: by a jury composed of your equals and fellow-subjects: you have been convicted by that jury.” . . . . In this strain runs regularly the eloquence, by which, when a convict is about to receive his doom, in an oration addressed in form to his own, but in design to other, the surrounding, ears (not to speak of pens,) intimation is given to him, that is, to them, to recognise the justice of it.

In this way it is, that the satisfaction, whatsoever it be, which it is the lot of the up, Edition: current; Page: [117] start “censor* to afford, by his suffering, to the injured excellence of “great characters” placed in “high situations,” is enjoyed without abatement: while, of any dissatisfaction that may chance to be raised by it, a portion, more or less considerable, is turned aside upon the jury-box, the inhabitants of which find, in the constitutional darkness in which their operations have been involved, an effectual protection against all assaults to which visible objects stand exposed.

Were it my lot to be tried for a libel—a lot that may fall to me at any time, as well as to every other man in the country, who can either write or read, and whose endeavour is to afford, in any shape, he being not a man of family,instruction to mankind,”—I had rather, a hundred times over, be tried by Lord Ellenborough, sitting alone in his proper place, whatever it might be—the King’s Bench, the Star-chamber, or the Privy-chamber—by Lord Ellenborough without a jury—than by a jury trained under the direction of, as well as directed by, Lord Ellenborough. By tears, by prostrations, by a certain quantity of dust licked up, by intercession of friends, by vows of good behaviour, and other et cæteras of penitence and humiliation, it might then happen to a man to find “feelings,” where feelings, other than those which are but springs of vengeance, are not now to be found, and where, except of that sort, the printers of The Independent Whig found none.

But suppose me prosecuted, and, before such a jury, of course convicted, what would be then the language: “Fool,” or “weakest man that walks over earth without a keeper—what would you have? You have been tried by a jury of your country: you have been convicted. There! go and write libels, if you can do it within four walls, without communication from without, in the well-ordered jail of Gloucester, for six years: for three, as is proved by your transgression after the examples you have had before you, are not sufficient.” Who, in a word, who had to stand fire from an adversary, would not rather have the adversary before a screen than behind one?

Edition: current; Page: [118]

PART II.: STATE OF THE PACKING SYSTEM, ANNO 1808.

CHAPTER I.: INTRODUCTION—TWO REFORMING SHRIEVALTIES.

§ 1.: Turner and Skinner, anno 1783-4.

In the year 1784, Sir Barnard Turner, and Mr. Thomas Skinner (See City Characters,) the late celebrated auctioneer, afterwards alderman of London, finding themselves Sheriffs of London and Middlesex, charged as such with duties of no inconsiderable importance, conceived what to many grave and learned persons of that time, “friends to social order and our holy religion,” was looked upon of course as a theoretic and speculative fancy; viz. that of making things “better than well,” by applying their minds to the fulfilment of those same duties. The state of things appertaining to that department having presented itself to their eyes as being in divers particulars susceptible of improvement, they made in that view what arrangements had occurred to them as being in their own power, and in a tract of forty 8vo pages*—gave an account of what they had done themselves, together with a statement of such other things as, if done by others, presented, in their view of the matter, a prospect of being of use.

In addition to some regulations, partly executed, partly recommended, having for their objects the health and good behaviour of prisoners, the changes thus spoken of under the name of “alterations and amendments,” consisted of three innovations—one respecting the disposal of goods taken in execution in civil actions, the two others respecting the place and mode of putting criminals to death.

1. On their entrance into the shrievalty, they had found lodged, by customary negligence, in the hands of the sheriffs’ officers—a class of men, whose hearts are universally recognised as standing, in a peculiar degree, exposed to the inroads of hard-heartedness and corruption—the function of nominating persons, at whose disposal, in the name and character of appraisers, goods taken in execution were regularly placed by these their patrons: and of the general result of this arrangement a tolerably adequate conception may be formed from one individual case, in which, according to the report given of it by these sheriffs, the value of the property so taken, being about five times the amount of the debt, and the whole having been taken from the debtor, no more than a tithe of it, viz. half the amount of the debt, had found its way into the pocket of the creditor; the other nine-tenths having, in some regular and established, but unascertained or at least undivulged proportions, been shared between the minister of justice, and his official nominee and associate above mentioned.

To this grievance the remedy they applied was one which, though in principle, and in the character of a regularly-established remedy, applicable by all persons on all occasions not altogether an unexceptionable one, proved, in the individual hands in question, there is reason to think, a beneficial one: the nomination which they had found, as above, in the hands of their officers, was taken out of those low-stationed and impure hands, into their own: and forasmuch as in that station men are not only too highly and conspicuously elevated, but moreover too frequently changed, to be much in danger of engaging with success in the organization of any regular plan for the extraction of lucre from so impure a source, the mischief, if not altogether eradicated, must naturally have been considerably diminished.

On what footing the matter stands at present, it has not fallen into my way to learn. At that time, as the evil genius of the discarded functionaries would have it, both sheriffs were upright as well as public-spirited men: and Skinner, being, in relation to the branch of business in question, in a pre-eminent degree an intelligent one, knew where to find his like.

At present, the magnificent edifice, now erecting in the centre of the city under the name of the Auction Mart, presents the idea of a more radical cure.

2. On the ground of capital punishment, the place and mode of execution furnished to these reformers two other opportunities for casting their honest mite into the treasury of justice.

On those melancholy occasions, on which to save the trouble of reforming them, and adjusting punishment in quality as well as quantity to delinquency, malefactors of the Edition: current; Page: [119] most diversified descriptions are involved in one indiscriminating destruction, the operation was in those days regularly preceded (it seems not easy to say why) by a procession of two or three miles length, in the course of which, whatever effect could have been expected from the concluding tragedy was more than countervailed by the intervening disorders. Struck with the incongruity of this surplusage of locomotion, our reformers fixed the ceremony to the well-assorted spot to which it remains attached at present: a spot immediately contiguous to the place of confinement from which the victims then used to be, as they still are, taken for the appointed sacrifice.

At that same time, the fatal operation being performed, as mechanicians say, by hand, was performed in that coarse and uncertain manner, by which the sufferings of the patients were exposed to receive unintentional increase. It was to this happily associated pair of humble and unambitious reformers, that the machinery, now applied to that purpose, and still known by the almost burlesque but sole existing name of the New Drop, owed its establishment. Under English justice, the intended object, as well as effect of it, corresponds exactly with that of the guillotine, under the anarchical tyranny of revolutionary France. For, in the design of the humane, as well as scientific, inventor, whose name it has perpetuated, that instrument (a French edition of our Halifax Maiden) had no other object than that of diminishing, in each instance, the suffering produced by those executions, the multitude of which depended on other hands.

To any one who has been accustomed to observe how slow, in every department of government, from the highest down to the lowest, the pace of reform is, and how thickly beset with obstacles the paths which it has to traverse, it may be apt to appear difficult to conceive by what strange accident, even in so low a sphere, a change, which had for its result, as well as for its object, the good of the many, should have been suffered to take effect.

As to the innovation which consisted in the disturbance given to the official arrangement, by which so quiet and regular a division had been made of the property of the debtor between the officer and the appraiser—in the fact of its having been suffered to take effect, and that too without opposition from above, he may behold a certain proof of two things: viz. 1. That there was no individual existing in any such station as that of a judge or other considerable law-officer, into whose hands so much as a single penny of the profit that used to be thus extracted, was ever felt to have found its way; and that, in particular, if in the disposal of any of the property in question, any errors were ever committed by any one of these inferior ministers of justice, no Chief-Justice of the King’s Bench had ever considered himself as having gained, or conceived himself as being in a way to gain, to the amount of £1434 : 15 : 6 a-year, or any part of that sum, nor any Chief-Justice of the Common Pleas, £733 : 3 : 11 a-year, or any part of that sum, nor any attorney-general that or any other sum by contributing to the manufacture, or effecting or permitting the correction of any of these errors: 2. That neither did there exist among any of those exalted personages, any individual whose pride had found itself by any accident engaged in the protection of the abuses or inconveniences thus removed.

3. As to the procession from Newgate to Tyburn, the thieves, whose practice found itself diminished by the abolition of this ceremony—these unlicenced depredators—not one of whom ever had or ever would have found any difficulty, other than from want of money, in his endeavours to purchase a toss-up for impunity on pretence of some error, bearing no more rational relation to his case than to that of the first homicide—found themselves unable in their conjunct capacity to make any such case as on the ground of precedent would, in point of decency, have warranted any gentleman of the long robe, in the character of judge, counsel, or member of parliament, to stand up in support of it.

4. As to the new drop, the dying agonies of the patients destined to be relieved by it, not having found, in a long robe or in any high situation, any person possessing any such interest in their continuance, as is possessed by such a multitude of personages in high situations and long robes, in the continuance of the living agonies of so many thousands who are kept so regularly immured in forced idleness, by their authority and for the sake of their profit and their ease, and the only persons whose co-operation towards this reform was necessary, being the surveyor and the carpenter, whose sensibility to the advantages of it was beyond dispute, thus it was that this reform too found its way into existence unopposed.

In a word, barring opposition from superior power, accomplishment being within the power of the reformers themselves, and no interest intervening in any tangible shape to call down opposition from above, the reforms, such as they were, were carried into effect.

By these circumstances, when rightly considered and put together, the known facts of the case may be found to stand divested of that air of fable, by which, to a first glance, they may have seemed obscured.

§ 2.: Phillips and x. Anno 1807-8.

From that year (1784) to 1807, nature took Edition: current; Page: [120] time to rest herself: and, in all those three-and-twenty years, though of abuse, in a considerable variety of shapes, there could not, during any part of that time, have been any deficiency, it appears not that in the series of worthy and respectable gentlemen, who succeeded each other in that office, there had been so much as one, to whom the idea had occurred, of occupying himself in any such theoretic and speculative task, as the attempting to make any defalcation from the mass: no—not a thought about any such matter, in the breast of any one of the units in so many pairs of functionaries, any more than if, instead of paying his £2000 or £3000 for the privilege of discharging the functions of his office, he had, like a pair of Honourable Knoxes, received his £10,023 a-year; or like an Earl of Buchinghamshire, his £11,094, or like a pair of Lord Seymours, his £12,511, or like a pair of Percevals (one behind the other) his £38,574 (“subject” alas! to “deduction,”) for the trouble of bearing the official title of it: practice not being, in any part of all this time, in any degree, or by any body, neglected—practice, to wit in essentials, such as going to court, riding about in a gilt chariot, giving and eating dinners, and the like.

Africa, in times of old, had the reputation of producing such singularities as could be exhibited on four legs. In modern times, England has among nations been noted for producing singularities on half the number of legs.

In the shrievalty year 1807-8, the spirit of reform having passed, as hath been seen, three-and-twenty years of repose on the pillows, or in the graves, of Sir Barnard and Mr. Skinner, made its appearance, in the character of a giant refreshed, in the body of Mr. Phillips, a publishing bookseller of the first eminence, who, on receiving from his Majesty’s sword the customary honour, changed his appellation into that of Sir Richard Phillips.

In the nature of the shrievalty there is a sort of mystery, in consequence of which he, who does not look well to his words, and even he who does, will be in continual danger of falling into one or other of two heresies, which, like Scylla and Charybdis, lie in wait for him, one on the side of grammar, the other on the side of legal and curious learning. In London and Middlesex, taken together, there is never one sheriff only; there are always two sheriffs. The same two respectable gentlemen who, in the city of London, constitute two sheriffs, and thereby two persons, constitute, in the county of Middlesex, but one sheriff, and thereby, in legal abracadabra, like man and wife, but one person;—or else vice versâ;—for, such is the frailty of unlearned memory, that as often as, in relation to this article, one minute finds me in possession of orthodoxical truth, the next minute finds me dispossessed of it.

In the artificial and involuntary fraternity contracted by him on this occasion, it was not the lot of Sir Richard to find any such felicity as that which had attended Sir Barnard and Mr. Skinner.

Bishop Burnet—or, if not he, some other self-reported eye-witness, whose name, if found, would not, to the present purpose, add much to the stock of our useful knowledge, tells us of a pair of twins whom he saw living in Holland, and whose misfortune it was to stand connected by bonds of fraternity closer by much than either of them wished; viz. by an adhesion of some sort or other, in the region of the back-bone, constituting thence, instead of two bipeds, one unfortunate quadruped.

At the age of about twenty, one person of this unhappily-connected pair paid the debt of nature. The condition of the survivor is too deplorable to be dwelt on anywhere, especially in this place. All that is here wanted of him is to serve as a type of one-half of our quadruped, or double biped sheriff.

In his pilgrimage through the thorny region of reform, Sir Richard was not long ere he found himself in the disastrous plight above alluded to. Into the body of his twin colleague, Mr. x, either the beneficent spirit above spoken of had never made its entrance, or had soon made its retreat, leaving it in the condition of a carcase, which, if not dead in law, was dead to the purpose of rendering, in any degree, less pernicious the condition of the law. At every step he took, our knight found himself with this everlasting colleague at his back, exhibiting, in no other form than that of the vis inertia, except now and then a kick or two, any signs of life.

As to Mr. x, I borrow, on this occasion for his use, one of the names employed by mathematicians for the designation of their unknown quantities, not thinking it necessary to him to possess any other introduction to “Prince Posterity” than what he has secured to himself by his own picture, as drawn by himself and published by Sir Richard, in that work of his, of which mention has been already made.

As to Sir Richard—what things he did—what other things he tried to do, and would have done, but for the giants and dragons he had to encounter in his way—all the while with this mass of proud flesh at his back—matters of that sort belong not exactly to this place: any more than the sort of requital he met with, in another character (see p. 111,) from a pair of learned brethren, whom he found so much more perfect in the art of “dwelling together in unity,” than he and his.

Of the list of his achievements and less successful endeavours, one alone belongs, by any direct title at least, to this history; viz. the discovery, made by him, of the pitch of perfection, at which the art of packing (that master art of which the elements have been Edition: current; Page: [121] endeavoured to be delivered as above,) has been carried in the application made of it to special juries.

Beholding in the Court of Exchequer, as above, the great manufactory or workshop, in which it was carried on, and seeing more to admire in the ingenuity displayed in it, than in the purposes to which he saw it applied, he addressed a letter to the chief conductor of that important branch of business, noticing the state of the art, together with such observations as had been suggested by it.

At this time he was either charitable enough to suppose—or, (what seems the more probable interpretation of the two) decorous enough to seem to suppose, that the mode in which the business was conducted was a secret to the pre-eminently learned as well as skilful person, under whose auspices and authority he found it going on. But, if such was ever really his belief, it was not long before he found himself obliged to take his leave of it.

CHAPTER II.: THE SHERIFF TO THE LORD CHIEF BARON—NOTICES.

§ 1.: Substance of the Letter.

Few, simple, and important, will be seen to be the statements made by this sheriff to the Lord Chief Baron. After the substance of each statement, follows an intimation of the sort of answer given to it.

1. That in the judicatory, over which the Lord Chief Baron presides, juries are become virtually permanent: and that the Lord Chief Baron knows they are. Of this state of things the Lord Chief Baron admits the existence; and moreover, as will be seen, justifies it.—Say, admitted and justified.

2. That this permanence is contrary to an acknowledged principle of the constitution, and considered by the public as such.—Not denied.

3. That it is contrary to the express provision of an act of Parliament [4 Geo II. c. 7, § 2.]—Not denied.

4. That the permanence has packing for its cause.

N. B. The word packing not employed: but the modes of operation indicated, and certain official persons indicated as operators.—Not denied.

5. That of the interference of the solicitor on one side, viz. the solicitor for the crown, a selection, chargeable with partiality, is the habitual result.—Not denied.

Partly by a regard to decorum, partly by the want of that experience which was yet to come, the sheriff was betrayed into two other assertions which proved erroneous.

6. One was—that this permanence had not among the number of its causes, on the part of the learned judge whom he was addressing, either direction or connivance. This was in April 1808. But in September following, we shall see him relating facts, by which, on the part of the judge, connivance was rendered certain, and direction (the system of permanence being in the judge’s answer openly defended) little short of it.

7. The other was—that among the causes was either negligence or indifference, on the part of the official persons by whom the jurors are fixed upon:—which persons, as the Lord Chief Baron could not but know, though the sheriff does not state who they were, were officers acting under the authority of the learned judge. But of this breach, not only of constitutional principle, but, as virtually admitted, of positive law, neither negligence nor indifference had been the cause. And the proof of its not having had either for its cause, is given by the sheriff himself a little further on. For, on receipt of a remonstrance made by him, we shall see the master packer giving up for the moment the supposed illegal practice, but afterwards resuming it.

§ 2.: The Letter in its own words—with Observations.

Here follows the letter in its own words. Phillips, p. 166.

“TO THE LORD CHIEF BARON.

My Lord,

In obtruding upon you Lordship, on a question which has arisen in the exercise of the high office which I have the honour to fill, and which appertains, in an important degree, to the practice of the court over which your Lordship so honourably presides, I am emboldened by that urbanity and liberality, which I have discovered to be the leading and actuating traits of your personal character.

Your Lordship is doubtless aware, that the public have viewed with peculiar interest, for many years past, the manner in which special juries are brought together, and particularly the circumstance that they have consisted, with little variation, of nearly the same individuals in every cause, for terms and years together.*

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“In causes between individuals, this is a matter of minor consequence; but in causes between the crown and the subject, your Lordship will readily conceive, that it is a practice viewed with jealousy, and does not accord with those other features of our jurisprudence which are so much admired at home and abroad.

“The evil is not attributable to the connivance or direction of the judges,* nor to any defect in the law; but it arises solely, as I am told, from the negligence or indifference with which the juries are struck by the proper officers, and from the interference, in certain cases, of the solicitors for the crown. Edition: current; Page: [123] The freeholder’s list is full, and tolerably perfect; but in calling over the names, the solicitor is permitted to interpose, and to say who will and will not attend: so that instead Edition: current; Page: [124] of the names being indifferently taken and dictated by the officer of the court,* and the attendance of those persons being compelled by the exaction of severe penalties, the juries are chiefly composed of those who, it is loosely stated, will attend; and these are frequently the same persons, jury after jury, and term after term.

“Your Lordship will perceive, from the inclosed letter of Mr. * * *, that the sheriffs have had some difficulty in their minds on the subject of summoning persons thus returned; considering as they do, that the clause of the 4th Geo. II. applies equally to special and common juries. Yet as the correction of the evil is their object as public officers, rather than any contention with the officer of the court, I have felt it more respectful at once frankly to submit the whole matter to your Lordship, in the hope that it may tend to place everything on its proper footing in the pleasantest manner.

“I beg at the same time to have it distinctly understood by your Lordship, that in making this statement, and in writing the observations contained in this note, I have had no design to implicate the conduct of any individual; and that, in stating the general facts, my only object has been to justify the application which I have in this manner felt it my duty to make.

“I entreat of your Lordship to believe me, with every sentiment of respect, yours, &c. &c. &c.

“R. Phillips.

CHAPTER III.: LORD CHIEF BARON TO SHERIFF SIR RICHARD PHILLIPS—AVOWRIES AND DEFENCES.

§ 1.: Substance of the Letter.

Four days after the sheriff’s letter, viz. on the 9th of April 1808, comes, from the Lord Chief Baron to the sheriff, an answer, of the general complexion of which an intimation has been given, as above.—I. Admitted and Edition: current; Page: [125] justified, the permanence. II. Not denied—1. That it is unconstitutional; 2. That it is contrary to act of parliament; 3. That the mode in which it is effected is by officers in his lordship’s dependence, in collusion with the solicitor on one side.

None of all these phenomena coming, in his lordship’s conception, under the notion of “inconvenience,” he declares—and on the authority of his own “long” experience—that not “the least inconvenience” has, from the practice in question, ever “arisen during all that time.

On the other hand, to the restoring special juries to that state of independence in which they are, by the constitution, intended, and, in fact, supposed to be, he opposes two decided objections. These may be comprised under the following heads:—

1. Increase of vexation—viz. eventual vexation to persons liable to be called upon to serve in the capacity of special jurors: vexation, a mischief the avoidance of which constitutes, it must be confessed, one of the collateral ends of justice.

2. Danger to justice—viz. to the main and direct ends of justice—by the prejudice that may result to one side of the cause or the other, as it may happen: to wit, by a partial loss of a species of “instruction,” which, in the class of causes in question, he represents the jurors to stand in need of, to make them do justice.

Theoretical classifications, such as the above, are looked down upon of course with sublime disdain by the almighty creators and arbiters of practice. But being my duty, it is my endeavour, to place his lordship’s arguments in what appears to me the clearest as well as strongest light of which they are susceptible.

Of these supposed inconveniences, such is the force with which the consideration operates on his mind, that he concludes with using his influence with the sheriff to engage him to leave things as they are.

Whether, even supposing the inconveniences in question to exist—and that in the utmost degree of force in which they are capable of existing—whether, even on that supposition, they would in law constitute any sufficient warrant, or so much as an apology, for the mal-practices, the existence of which is admitted, is a point on which not much seems to require to be said.

But the very existence of the inconveniences in point of fact, seems to call for an inquiry, which will be the business of another chapter.

§ 2.: The Letter in its own words.
“TO SIR RICHARD PHILLIPS.

Sir,

Permit me to thank you for the very flattering manner in which you were pleased to make the communication I received, with respect to the summoning of special juries. Mr.—’s observations were perfectly just;* I cannot but observe, however, Edition: current; Page: [126] that he uses the expression, ‘if you think it worth your while’ to make any reform:* this, as far as respects the Court of Exchequer, I have not found, from the experience Edition: current; Page: [127] of above twenty-four years, in the character of his Majesty’s law officer, or as Chief Baron, to be worth while; as I have never seen the least inconvenience* arise from the manner of striking and summoning special juries, during that time. A great inconvenience to the special jurors must arise from summoning those from a distance.

“The causes in the court of Exchequer are of a nature quite peculiar to themselves in many respects, and the duration of any cause is particularly uncertain. In order to obtain their attendance, it has been found expedient to summon such as live near to London, otherwise there would be little expectation of having anything like full special juries, and almost all causes in revenue matters are tried by special juries.

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“Within the last half year, I have had complaints in court, by gentlemen summoned on the special jury, of being brought fifteen miles from their homes,* whereas the persons living in the immediately adjacent parts of the county could attend without any inconvenience. I may add, too, that some experience in serving upon Exchequer special juries is far from being detrimental to the public or defendants, inasmuch as the instructing jury after jury, in the conduct of Edition: current; Page: [129] many species of manufactures, and the laws on the subject, exposes both parties to the hazard of the points being ill understood, and hastily determined by them.

“During the long time that I have been employed in the court of Exchequer, I have known few verdicts from which I should have dissented,* had I been one of their inestimable body, and they have been cases wherein the determination has been favourable to the defendants.

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“Having hitherto seen* no reason to complain, as far as my experience goes, it must be left to your own discretion, whether you will risk the making us better than well. I am, Sir, with great respect, your obedient humble servant,

“A. Macdonald.

CHAPTER IV.: OBSERVATIONS ON THE LORD CHIEF BARON’S DEFENCES.

§ 1.: Insufficiency of the Defences in any case.

Come we now to the consideration of the two inconveniences, the pressure of which on his lordship’s mind became so irresistible, as to force him at once upon two measures of such extremity as the violating an acknowledged fundamental principle of the constitution, and travelling on for years in a course of persevering and open-eyed disobedience, in the teeth of the authority of the legislature.

Not that, had the advantages professed to be expected from this transgression been ever so many times as great as even by himself they could have been supposed to be, they could ever have amounted to so much as the shadow of a defence. On every imaginable supposition, the operation thus performed by the subordinate, by the judicial authority, is indefensible. The change thus effected, would it, if proposed to parliament, have been approved and carried into effect by parliament?—attempting it by judicial authority was needless:—would it have been disapproved?—attempting it by judicial authority was not fitting.

Instead of that of George the Third, had the reign been such an one as that of Elizabeth, in which the intention of sparing the subject as much as possible—perhaps for ever—the trouble of paying their homage at the foot of the parliamentary throne, was declared—declared, from the throne itself, and Edition: current; Page: [131] merit grounded on it—at such a period—such usurpation might, in such supposed advantages, have found an excuse. But now—in the 19th century—when the return of the sessions is become no less regular than that of the seasons—is this a time when the plea of necessity can form so much as a veil—any even the slightest veil—for such usurpation?

Yet, though the work be but supererogation—and the words bestowed upon it little better than surplusage—let us take up the arguments one after another, and look a little into their texture. Let us see whether, when put together, there be in them indication of any such mass of substantial inconvenience, as could have served for a ground, even for so much as a constitutional and regular recourse to parliament for the removal of it.

§ 2.: Defence 1—Avoidance of Vexation

“Brought fifteen miles from their homes!” Alas! poor “gentlemen!” Brought fifteen miles, each of them for no more than a few guineas—possibly even for no more than one—to a place to which everybody comes, and to which, but for the summons and the guineas, without any guineas received, and at the expense of guineas paid, they would otherwise have come!

Oh! what a charming thing it is to be a gentleman! If, on the bed of roses you repose upon, there be but a single leaf that has a pucker in it, how tender the sympathy excited in reverend and learned breasts!

Fifteen miles from the metropolis!—and in the whole of this almost smallest and most compact of English counties, exists there really any one spot banished to so tremendous and toilsome a distance?

What if it had been in one of the large or straggling counties?—in Yorkshire, in Lincolnshire, in Devonshire, in Sussex, for example? In any of those instances, how many more miles would the maximum have swollen to? But the imagination is appalled, and shrinks from the research.

Turn now to common jurymen—for the definitive trial of causes the only sort of jurymen which till t’other day the constitution knew of. Place them in one of the large or straggling counties, and fetch them to court, each for his eight-pence.

Aye, but these are low people—people who cannot say their catechism—their Perceval catechism—(See Part I. Ch. XI. § 2)—people of no “family”—people (as we shall learn from the observations of the learned Templar, whose “observations are so perfectly just)—people whose time, if it be not absolutely worth nothing, is at any rate, in the estimate of Exchequer justice—or say at once of Westminster-hall justice—not worthy of a thought—people who except for the purpose of thus serving in it without recompence, are thrust forth in a lump out of the temple of justice into the pit of outlaury, lest the fund of rewards provided for learned merit should fail of being adequate to that exclusively important service.

As to the principles, the true legal principles, on which the value of time ought to be computed, this topic will meet us in the next chapter.

§ 3.: Defence 2—Benefit of Instruction.

Direction to Judges, Advocates, Politicians, and other Debaters; showing a safe method of defending the wrong side of any question, especially where you have the advantage of situation on your side.

Where the nature of the case is such as to afford you, for the purpose of your argument, no fact, but what, if relevant and particular enough, would not only be false, but too plainly so not to be seen to be so, mount up into the region of generalities, till you come to some proposition, which, being by reason of its generality neither true nor false, is by that means saved from the inconvenience of being proved to be false. By this means, should you fail of convincing men, those excepted who find their convenience in being convinced, at any rate (what is no small point gained) you secure yourself against being confuted. And among men of modesty and diffidence, those who cannot exactly find out what your meaning is (at any rate, if your “situation” be a “high” one, and they scholars bred up in Blackstone’s school,) will, if they do not plainly see your meaning to be false, give you credit for its being a good and true one.

Whether a rule to this effect was ever laid down in words, is more than my slender stock of learning will enable me to pronounce:—that it has been acted upon, and that right frequently, may be asserted with less diffidence. Witness ourselves at Westminster, et cætera, and so forth:—at Westminster, in all our courts, and moreover in both our houses.

Experience . . . . far from detrimental” . . . . . Instruction needful to human ignorance—two lessons better than one—three better than two, where two have proved insufficient—against maxims such as these, where is the caviller so perverse as to pretend to have found anything to object? Proof against all disproof, what, at the same time, does all this prove? Among those “many species of manufactures,” had but a single one obtained a mention, here it is that, if in the general proposition, thus cut down to a particular one, a speck of error had found itself included, the finger of detection might have been laid upon it:—meantime, in default of stronger handles, let us look out for something Edition: current; Page: [132] that for the moment may be taken hold of, though it be but of straw or cobweb.

But before we proceed to observe upon it, let us, by way of necessary preliminary, begin with the endeavour to interpret it, or, as they say in Westminster-school, and in Westminster-hall, to construe it—or, in plain English, to find out the meaning of it, or, when the worst comes to the worst, a meaning for it.

Instructing jury after jury . . . . exposes” (says his Lordship) “parties to a hazard.” . . . . . Not that from this we ought to conclude that, taken in the abstract, instruction is a bad thing:—bad, either for those to whom it is not, or those to whom it is, communicated.

No, nor yet that, in taking for the subject of instruction “many species of manufactures,” there is more of hazard than there would be in confining the instruction to some of them, and leaving the rest to go without it . . . . But . . . .

But—lest to construction, carried on upon this plan, there should peradventure be no end, let us lay aside construction, and take up paraphrasis, or, as we say in English, paraphrase, instead of it.

Many are the species of manufactures, in the instance of each of which, in respect of this or that part of the whole assemblage of instruments and operations, which, on the occasion of a revenue cause in the Exchequer, is liable to come in question, the demand for instruction and explanation is so considerable, that the utmost quantity of instruction that will, generally speaking, have been afforded on the occasion, and brought within the compass, of a single cause, will not have been sufficient to satisfy it: so that, should the same part of the process be brought a second time under the notice and cognizance of one and the same juryman, the probability is, that with the help of the additional instruction which on this second occasion he will receive, the conception which he will have obtained of the matter at this second trial, will be more accurate and complete, than the conception he obtained at the first trial, whereby, in so far as depends upon him, the chance in favour of a right verdict will receive a proportionable increase.

§ 4.: Mischievous Doctrines involved in this Defence.

Meantime, if this, or any thing like it, be the argument of this pre-eminently learned judge, let us observe now where it leads. We shall find involved in it the following doctrines:—

1. That, in respect of causes of the particular description in question, jury-trial, in the ordinary mode, is not a fit mode of trial: at any rate, not so fit as the new mode which he has contrived to substitute to it.

2. That for these causes, the more proper, if not the only proper species of judicatory, is that which is composed of a board or bench (call it which you please) of permanent judges: for example, such as the board of excise, which already to a considerable extent has jurisdiction in these same matters: the principal difference being, that in this special-jury board there is an over-number of judges, to make a kind of rotation: which species of judicatory, preserving to it still the name of judge and jury, with the forms of jury-trial, he has substituted accordingly.

3. That, the mode employed by him being such as renders this secretly formed board of completely dependent judges, under the disguise of jurymen, applicable with equal facility, and in practice, as there is reason to think, (Suprà, Part I. Ch. VIII.) actually applied, at the pleasure of dependent servants of the crown, to crown causes in general (capital, and next to capital, excepted,) and, in particular, to crown libel law causes, the superiority of advantage attached to this sham jury-trial, as compared with the genuine mode, is such as warrants the departure made to so great an extent from the acknowledged principles of the English constitution.

4. That this superiority is even such as not only would warrant the legislature in making the change, but actually has afforded to a judge, viz. to himself, a sufficient warrant for making it of his own authority, and without warrant from the legislature.

§ 5.: Acknowledged Nothingness of the Advantage.

Such being the price paid, at the expense of the constitution, by this our learned improver, for the sort of improvement introduced by him, with such advantages as may be found belonging to it, a question to which the mind of the inquirer is naturally and unvoidably turned is—what may be the amount of this advantage, according to the estimate formed of it by the learned improver himself: this being the advantage for the sake of which he has been content to give birth to all those other results, the complexion of which is, to ordinary eyes, so far from being advantageous?—and, for answer to this question, what we find, certified to us by his own words, is, that, in his own estimation, this advantage amounts either to nothing at all, or to something between nothing and next to nothing. It amounts not so much as to the absence—total absence—of all “detriment” or inconvenience: it amounts to no more than the absence of “detriment” in one particular shape; viz. in the shape of “experience.” “Some experience,” says he, “in serving upon exchequer special juries is far from being detrimental to the public or defendants”. . . . whereupon immediately come those clouds, in which we Edition: current; Page: [133] have seen this pre-eminently learned person losing himself, when he goes on to speak of the “hazard” to which “both parties” are “exposed” by “the instructing jury after jury.

While puzzling myself with this glimpse of an advantage, being curious to discover, if possible, what might be the amount and value of it in the eyes of the learned improver himself—and, instead of recurring at once to his own estimate, as above, having fallen unawares into the error of endeavouring to determine it, from the price I saw he was so well content to pay for it, I had strayed insensibly into the inquiry, what might be the real amount of it; and in this view, at the cost of some days of labour, I had actually pursued to no inconsiderable length the analysis of it. But upon turning once more to his own words, and finding that it was not easy for any person whatever to sct this supposed advantage at any lower rate than it had been set at by the learned improver himself, I saw at length, and not altogether without regret at the thoughts of the time thus wasted, that I had been all this while combating without an antagonist.

I therefore spare the reader, for the present at least, the labour of following or attempting to follow me, through a sort of analysis so dry and intricate as to involve, in the way of indication at least, a mass of mathematical calculation. But should it ever happen to his Lordship, or to any avowed advocate of his Lordship, at any such bar as that of the House of Lords, or even that of the public, to draw into question by any arguments the propriety of this his estimate, I mean in so far as it sets down this so dear bought advantage as amounting to next to nothing, I am ready to produce this my analysis, and, upon the supposition in question, to defend, against these his Lordship’s first thoughts, any second thoughts, either on the part of his Lordship, or on the part of any other such less dignified defenders and gainsayers.

§ 6.: Short Exposure of the supposed Advantage.

Meantime, in demonstration of this nothingness, one argument (it being a short one, and not involving any inquiries of detail) shall not be consigned to oblivion with the rest.

On the part, and in the person of, and from the “instruction” that would be afforded by, this our pre-eminently learned judge, a jury of the old school, were it permitted to “serve,” would have the benefit, not merely of “some experience,” but of consummate experience. Now then, after the benefit of such instruction, though received in the course of no more than one single cause, to wit, the cause for the trial of which such jury had been summoned, and was sitting, what would be the utmost advantage derivable to any practical purpose, from any other, to wit, any antecedent lecture or course of instruction, that could, even from the same pre-eminently learned lecturer, have been received? Nothing; no, nothing at all; is the answer I return with the utmost confidence. Where “the points” were such, as to be either plain enough in themselves, or made so by the one only lecture which, till this our pre-eminently learned lecturer set up, was ever designed by the constitution for an English jury, his Lordship would accordingly leave the decision to the opinion of these plain men. When these same “points” had any such intricacy in them, as entitled these plain men to the benefit of an opinion, formed and ready made for them by this at present consummately experienced, and from the first most incontestably competent judge, he would not refuse it to them. This incontestably competent opinion, would it find them disposed to acquiescence? Acquiescence would take place accordingly; and (in the Blackstone’s phrase)everything would be as it should be.” Would it find them disposed to refractoriness? It is not by any antecedent experience that they could have been cured of so troublesome a vice.

But (says some one, with the proper expressions of regret) the country (alas!) cannot always enjoy the blessing it possesses at present, in the services of this our veteran and consummately experienced judge: that blessing withdrawn, comes some other Lord Chief Baron, who, though the adequacy of his general legal learning will be sufficiently proved by his situation, will not, with reference to causes of the class in question, be, at the commencement of his first cause, altogether so completely endowed in the article of experience. Here, then, upon his Lordship’s improved plan, comes the benefit of an experienced, and thence of a permanent jury:—while the judge is learning to walk, the jury will be able to go alone. But, upon the old plan, what experience would there be?—When the blind have no leader but the blind, the consequence is such as need not be mentioned.

I answer—were the argument, which has been shown to be worth nothing, worth ever so much, it could not to this purpose be of any use. At a much cheaper rate than the violating of a vital principle of the constitution, an adequate allotment of appropriate experience might, at all times, be seated upon the bench. “Set a thief to catch a thief,” is a coarse proverb, but, on the present occasion, not an uninstructive one. In that division of the court of Exchequer (not to speak of the great law-officers, who might not always regard a presidentship, which has so recently cried date obolum, worth the honour of their acceptance,) there will be always some one learned gentleman at least, by whom, in the Edition: current; Page: [134] character of licensed accessary after the fact, or, in two words, standing counsel to the fraternity of smugglers, an ample stock of experience—appropriate experience—cannot but have been laid in.

But (replies the learned gentleman on the other side) any rule to this effect would be an infringement upon the liberty of the prerogative: that liberty being proportionably trenched upon by every rule, the tendency of which is to secure the appointment of fitter functionaries in preference to less fit ones. It would accordingly be injured, if, in his choice of judges, it were rendered more difficult to his Majesty than it has been, to provide for the accommodation of the family connexions of persons in “high situations.”

Prerogative (I answer) is an argument, which is (I must confess) understood never to admit of any direct contestation. But, in the Westminster-hall benches, besides ten subordinate seats, there are four chief or principal ones: and the prerogative, it is humbly submitted, would not sustain much injury, if, for the superior purpose of private accommodation, it were to apply itself to some one of the many other seats in which no such imperious demand for experience—appropriate chemico-mechanico-commercial experience—as that of which, by the unprecedented sagacity of the present Lord Chief Baron, the discovery has so recently been made.

§ 7.: Mischievousness of the Doctrine further developed.

But the material thing is, that, if his Lordship’s sentiments have not been strangely misinterpreted by his words, it is not merely in Exchequer causes, viz. Exchequer revenue causes, that, in his conception of the matter, the substitution of a permanent and dependent board, under the name of a jury, to the jury of the old school, ought to be applied; but in all causes to which that antiquated species of jury has ever been applied: in all such causes, without exception, but more particularly in libel causes. For, such is the nature of the reason thus held up by him to view, that to the application of it any narrower extent cannot surely be assigned. This reason consists of the ignorance under which each member of a jury cannot but be supposed to labour, the first time, at least, of his serving in that character: of which ignorance, in his Lordship’s view of the matter, the influence—the morbid and debilitative influence—is such, that nothing less than permanence can afford an adequate cure for it.

The “points” which he speaks of as being the subjects of this ignorance—of this ignorance to which there exists no remedy but in that “experience” which supposes permanence—the actually existing and thus defended permanence—are, not only points relating to the conduct of manufactures, “many species of manufactures,” but points relating to “the laws on that subject,” meaning on the subject of these same mannfactures.

Unfortunately, in comparison of what is to be found in the great body of the laws, the utmost difficulty of comprehension, and consequently of demand for instruction—for experience in receiving instruction, and consequently again for permanence of situation, the utmost demand created by those particular laws, which have for their subject “the conduct of manufactures,” is as nothing. In the instance of every part of the rule of action, which has any species of manufacture for its subject, that rule is in the shape of statute law—a shape in which it is provided with a determinate set of words for the expression of it. But, in the case of the great body of the law, remaining as it does in the shape, or rather in the shapeless state, of common, alias unwritten, law, there exists no such determinate set of words. In all this vast extent, the two sources of difficulty, and with it of demand for “experience” and permanence—viz. law and manufacture—are combined in one. Judges, the master manufacturers: law, or, what to every purpose—of suffering at least, if not of instruction or relief,—has the force of law, law itself the product of the manufacture.

In the case of every other species of manufacture—of every species of manufacture commonly known by that name, the master manufacturer viewing, in every misconception that may take place, a source of loss to himself, and having to deal with simple and uncultivated minds in the character of labourers, has for one of his objects, and that a constant one, the rendering the conception of the operations to be performed, and the instruments to be employed, in his manufacture, as correct and complete as possible, and employs his endeavours accordingly.

In the case of the manufacturers of judgemade law, interest being directly opposite, endeavours have of course been correspondently opposite, and results equally so.

Whatsoever may have been the course of endeavour—whether with or against the stream of interest—the result is, at any rate, equally and indisputably notorious. The demand for instruction, and consequently for “experience,” and consequently for permanence, being then so much greater in the cases in which his Lordship was not led to bring it to view, than in the cases in which he was led to bring it to view, and has brought it to view accordingly, this demand covering the whole field of law in general, and that of libel law in particular, what his Lordship’s opinions and wishes are and have been—what his Lordship’s endeavours, on all favourable occasions, Edition: current; Page: [135] may with justice be inferred and presumed to have been, and to be about to be—need not surely be particularized.

“This reason of yours—viz. the demand for experience—will you abide by it, or desert it? Desert it, there is an end of the matter, and your conduct remains without excuse. If you abide by it, will you abide by it wherever it applies with equal force? If no, there again you desert it:—if yes, you then mean to carry it, upon occasion, over the whole field of special-jury trial, and, in particular, over that part which regards libel law. Meaning to carry it over the whole of that field of jury-trial, and, in particular, over that part which regards libel law, in packing into a standing board a set of dependent commissioners, habited like jurymen, for service in your own court, that is, for Exchequer service, it has then been your meaning to enlist and discipline them for King’s Bench service.

Such, in conclusion, are the questions and observations that might be addressed to the pre-eminently learned author of this defence, and, as it should seem, not altogether without some prospect of effect, if the forms of the constitution were anything better than a cloak for despotism, and if responsibility were, in fact, among the attributes of an English judge.

§ 8.: Lawful Improvement—Track it would have proceeded in.

Now, suppose again, for argument sake, it had pleased this pre-eminently learned judge to “think it worth while” to allow to King, Lords, and Commons respectively, their several votes in relation to this business; more particularly to the Commons, whose attention is, or used to be, considered as, in a more particular degree, bespoken for regulations affecting the revenue.

In the House of Commons, besides the committees of the whole house, there would probably have been appointed some select committee for the purpose. Thus appointed, the committee would have set itself to work, and begun with analyzing the general conception thus formed by the ingenuity of the learned judge:—decomposing it, they would have resolved it into such particulars as may be found involved in it:—particulars, the number of which is determined by that of the several “manufactures, the practice of which has, under favour of that permanence which forms so really useful an attribute of the judicial seats, been brought under the dominion of his Lordship’s science. The analysis thus performed, they would, in the instance of each such manufacture, have proceeded to inquire into the truth and accuracy of that general conception, and into the degree of force with which, in each instance, the argument deduced from it, in defence of a select and permanent board, in preference to a fortuitously determined and ever-changing jury, may be found applicable.

Supposing that in each one, or in this or that part of the whole number of these manufactures, the quantity of instruction necessary to the giving the requisite assurance of a right verdict, had respectively appeared so great, that the quantity of time, capable of being allotted to one trial by jury, could not with propriety be considered as sufficient for imbibing it, then, and not till then, would it remain for the consideration of the committee, whether, for the obtainment of whatsoever increased probability of correct judicature appeared capable of being obtained by the proposed substitution, it would really be worth while that an innovation applying to so important a part of the constitution should be introduced.

Supposing this question determined in the affirmative, then would come upon the carpet, for the consideration of the committee, the question concerning the organization of the permanent board or bench of judges, by which alone, in the sorts of causes in question, correct justice is, by the supposition, capable of being administered.

Satisfied, let us even suppose then, that, by a jury, justice in this behalf was incapable of being done, would any such determination be formed by them—would any such idea be so much as proposed to them, as that of giving the name of a jury to a body of men in which it had been predetermined that none of the properties of a jury should be found? Would they—these representatives of the people—bring themselves to attempt putting any such imposition upon their constituents? I hope, and dare believe, they would not. Deceit like this belongs to none but a class of men trained up in the application and formation of that art and science which is from beginning to end the art and science of imposture.

Such as above, or something like it, is the course taken by King, Lords, and Commons, when to them it seems good to take upon them to make laws; to make laws, taking, as they must be content to do, their chance for seeing, or, if it be more convenient to them, for avoiding to see, those laws overruled:—overruled, indeed, but happily always by men of transcendent science, by whom, without the trouble of studying it, the business of legislation is so much better understood.

But King, Lords, and Commons, are a dull and slow-paced set;—determining nothing about facts, till after they have been poring over, as well as prying into, facts. How much more easily are these things managed by a learned judge! When, at any time, he “thinks it worth while” to make a law, it need cost him but a word: nor be it necessary even to that word to contain thought, or any such heavy matter, at the bottom of it.

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Another thing might, in this case, be affirmed with some assurance: viz. that were parliament, at this time of day, to think fit to appoint for this (not to speak of any other) purpose, instead of a jury, a permanent board,—in that case, into the organization of any such board, no such barbarous and flagitious feature would now be introduced, as should put it into the power of any one dishonest member to overrule, by his own single will, the opinion, and consequent will, of eleven honest ones.

Parliament would, in this case, do in this particular, as it did in the case of the judicatory established by the Grenville act: which judicatory cannot be defensible, but upon the supposition that what, in the case of jury-trial, is called unanimity, is indefensible.

CHAPTER V.: SPECIAL JURY CORRUPTION—DEVICES BY WHICH IT WAS PROTECTED.

§ 1.: Device 1—Leaving to Judges a covert ground for refusing to apply the act.

We come now to account for the flaw, observable, though, by our triad of learned persons, not observed, in the reforming statute (3 Geo. II. c. 25)—I mean its inapplicability to the principal, the new-invented, and most conveniently-framed seat of corruption viz. the special sort of jury.

So far as concerned the trial of causes, the use, and the only use, of a jury was, as there has so often been occasion to observe, the operating as a check to arbitrary power in the hands of judges. This intended and supposed check, by the invention of the sort of jury called a special jury, and to the extent of the application capable of being made of it, they had already, and before the passing of this act, given to themselves the faculty of converting into an instrument: the determination of the individuals of whom, in the instance of this novel species of jury, the tribunal should, on each occasion, be composed, being taken by them out of the proper hands, and virtually into their own, viz. by being vested immediately in the hands of the permanent officer, whom, on that account, there has been such frequent occasion to designate by the appellation of master packer—their own dependent and subordinate.

Abuses respecting the appointment of jurors—of jurors of all descriptions, and for all occasions—corruptions too flagrant to be any longer endured in silence—having engaged at length the attention of the legislature, the necessity of doing something had, to the conviction of the learned fraternity, become inevitable.

In this emergency, it became their manifest interest, and consequently their care, so to order matters, that whatever it should be found necessary to do, or suffer to be done, for the prevention of abuse in the appointment of juries, should be confined to common juries, and should not, either by design or through inadvertence, be extended to those juries of their own nomination—viz. to special juries: but that, on the contrary, every pretext and every opportunity should be embraced, for giving, to the application of so convenient an instrument, every extension of which it might be found susceptible.

At the same time, this invention of their’s being incontestably repugnant to the universally-recognised principles of the constitution, it became a matter of prime importance, that, of whatsoever should be done for the extension or even for the preservation of it, the true nature and operation should be kept as effectually concealed and disguised as possible.

The remedy, therefore, whatsoever it might be, was to be made to possess two characters; viz. an ostensible one, and a secret one: in its ostensible character, it was to bear upon all juries without distinction: in its secret character, it was so to be contrived, that, if at any time any untoward accident should happen to call for its being carried into execution and effect, it should, in the case of a special jury, be found inapplicable: which sort of jury should consequently remain the seat of corruption and abuse in every convenient shape, notwithstanding any success which, in the instance of the ordinary and vulgar sort of jury, might have attended the measures taken for the extirpation of those mischiefs.

For this purpose various devices, part old part new, were set to work. An old established one was—the rule they had long before contrived to establish—viz. that the crown (i. e. as many members of government as could contrive to get their interests included under that name) was never to be considered as bound by any act of parliament, unless expressly mentioned in it, which of course all persons interested would, on each occasion, take care that, if possible, it should not be.

By this rule alone, a great part of the design was already accomplished to their hands; for, by this rule alone, special juries, with the benefit of an exemption from the obnoxious restrictions, which, under the proposed new law, operated as a bar to sinister choice and permanence, might have been preserved to all causes, in which, according to the established forms, the king was nominally a party.

But by this rule, if alone, the benefit of the exemption would not have been extended to all causes to which it should happen, to have been brought under the cognizance of special juries. Under this cognizance they had already, of their own authority, besides the above-mentioned criminal and other sorts Edition: current; Page: [137] of causes, brought in general all those which, in contradistinction to criminal, are termed by them civil causes, comprehending together almost all sorts of causes: and to this extension they had the assurance to ask, and the good fortune to obtain, the confirmation of the legislature, in and by this very act. (3 Geo. II. c. 25, § 15.)

To complete the imposition, it then became necessary to employ a further contrivance, for concealing from non-learned eyes the completeness of the exemption meant to be established.

The way in which they managed it is this:—In the case of a special jury, the jurors, instead of being determined as in the case of a common jury, were, as there has been such frequent occasion to observe—were, as they always had been—“nominated,” as the word is in the books of practice, by the officer of the court—the master. The master, then, for one at least, if not he alone, would have been the, or at least a, person, to whom, had the corrupt practice been in this case meant to be prevented, the prohibition would have been addressed.

But to apply to this branch of the corruption—to the branch which was under their own management—any sort of remedy, was no part of their intention. Care was accordingly taken, that, to the effect in question, neither to this officer, nor to any other officer, by the staying of whose hand that part of the plague which was of their own nursing would be staid or checked, should the prohibition in question, or any prohibition, be addressed.

In the case of a common jury, the sheriff, as above observed, was the person by whom, out of a much more numerous assemblage, supplied to him under legal rules, by other hands (in the first instance by the constable of the several townships) the choice was made. Corruption having risen to such a pitch, that the cries of the public had become troublesome, it was become necessary that the mischief should, in some quarter or other, receive a check.

Common juries were the sort of juries in whose instance, in comparison of special juries, the preservation of the faculty of corruption was, to the purposes of the judges, and the other lawyers, of least importance: the sheriff, in whose hands the choice of jurors of this class was more immediately reposed, was an officer, on whose obsequiousness, regard being had to his impermanence, and comparative independence, they could not place any such reliance as upon that of the master, their own permanent subordinate.

The sheriff, it was accordingly determined—the sheriff, and he alone—should be included in the prohibition: the master, it was determined, should not be included in it.

Such being the determination, what was the contrivance employed for carrying it into effect? It consisted in the employing of such words, and one word in particular, viz. the word return, as, while to an unlearned eye they would appear to bear, alike in every case, upon the officer, be he who he might, upon whom, on each occasion, the composition of the reduced occasional list (see above, Part I. Ch. IV. § 3,) and thence, as far as depended upon him, that of the actually serving list (See above, Part. I. Ch. IV. § 3) depended, would be in case of litigation, and in the meantime, by learned and interested eyes, would be seen to be, in respect of the technical signification attached to the word return, incapable of bearing, in the case of a special jury, upon any such person, or in effect upon any person, at all: and thus it was that, for want of a person on whom the words in question could be found to bear, the supposed remedy was, in that case, to be rendered altogether inapplicable and without effect.

Such accordingly will be found to be the virtue of that convenient and aptly chosen word—the word return. The sheriff was and is the person, by whom, in all cases, what is called the return was and is made:—the return, i. e. the list of the persons summoned, or at least therein said by him to have been summoned, to serve on the occasion in question as jurors: which list was and is, in all cases, to be given in to the officer of the court.

The difference, in this respect, between the two cases, was and is—that in the case of common jurors, the persons chosen for jurors, were and are, a number of persons greater than 24 (the number contained in the case of a special jury in the reduced occasional list:) and so much greater than 24 as to constitute an aggregate out of which, in the case of a common jury, the actually serving lists for any number of causes, tried, as belonging to the county or other district in question, on the same occasion (viz. at the same assizes, sittings, or sessions,) are to be taken: and these are, all of them, of the sheriff’s own choosing, as above: in the case of special jurors, they are chosen by the officer of the court—the master—the master packer, out of a list furnished to him by the sheriff, being the same “gross list” that the sheriff himself has to choose out of: and the master having pitched upon the 24, sends an order, called a writ of distringas, inclosing the list (called the pannel) to the sheriff, who has nothing to do but to summon the persons contained in that same list, and thereupon, in his answer, called his return, to declare and certify his having so done.

Let it not for a moment be supposed, that on this occasion, in framing for themselves this valve of safety, on the part of these scientific and ingenious operators any such cause Edition: current; Page: [138] as inadvertence had any share. Return is the word by which they found the choice designated when made by the sheriff:—nominate, when made by the master, the officer of the court. That the sheriff never is said to “nominate” jurymen—that the master never is said to “return” jurymen—these are matters, neither of which could, to these learned persons, or any one of them, applying their thoughts to the subject, for a special and to themselves highly important purpose, have for a moment been a secret. Had it made any part of their intention, that special jurymen (the rich and well-paid jurymen, to whom alone the exemption could have been of no use) should stand exempted from the over-frequent service, as well as common jurymen (the comparatively poor and unpaid jurymen, to whom alone the exemption could be of any use,) in this case, to the word designative of the act of the sheriff, by whom common jurymen are chosen, they would have added the word designative of the act of the master, by whom special jurymen are chosen:—to the word “return,” when employed for the description of the act meant in this case to be prohibited, they would have added the word “strike,” or the word “nominate.” But their design being the reverse of this, such accordingly was the language employed by them in the execution of it. To the “return”—the reiterated return—of jurors, in the case of over-served jurors, the prohibition they framed was accordingly confined: to the nomination—the reiterated nomination—of jurors in the same case, the prohibition was not extended.

To make it clear, upon occasion, that, in the provisions against package, permanence, and corruption, it could not have been the intention of this act to comprehend the case of special juries, another argument was provided.

When a prohibition is addressed to a man, care is usually taken, that, in some way or other, he should find a motive for conforming to it. The operation meant to be restricted being the act of the sheriff, and he the person to whom the prohibition is accordingly addressed, to constitute such motive, an eventual penalty, bearing upon the conduct of the sheriff, is appointed, and denounced accordingly in the act: to the master, of course, no such, nor any other eventual penalty, is denounced.

Now, from this omission, if the prohibition is understood to apply to the case of a special jury, results a sort of incongruity, by which the intention of the legislature, under the guidance of these learned persons, to exempt the master packer’s corps of dependent special jurors from being disbanded along with the common jury corps, is put still more effectually out of doubt. [Editor: illegible word] in the prohibition, with the annexed penalty, put upon the official act, of which the service of over-served juries—viz. the too frequently reiterated jury-service in the instance of the same individual, would be the result—if in this prohibition special jurors are to be considered as comprised, one consequence is, that the sheriff would, in case of prosecution, have to pay the penalty for an act done in obedience to orders made by the master, and contained in the writ, called a distringas, issued by authority of the court: for, as hath been seen, it is, in the case of a special jury, by the master, each time that the twenty-four persons to be summoned by the sheriff to serve on that jury are nominated, and as such included in the writ, as above, sent by him to the sheriff. Now then, to make a supposition, instead of leaving, between their times of service, the interval appointed by the act in the case of common jurymen, let the master, in the case of two special juries who are to serve on two immediately following occasions, compose the two lists altogether of the same persons. This, if the prohibition in question is to be understood as meant to comprehend special juries, is a direct transgression against the act.

On this supposition, though it is by the master (the officer of the court) that the offence is committed, it is not by the master, but by another person, the sheriff, that the penalty is to be paid. Such injustice, it would naturally be argued, cannot reasonably be supposed to have been the intention of the legislature. Therefore, concludes the argument, be the remedy what it may, it was no part of the intention of the legislature, that it should be applied to the case of special juries. And the inference being, if not strong enough to impose an obligation upon an unwilling judge, quite strong enough at the least to afford a sufficient warrant to a willing one, the eventual inapplicability of the remedy to the case in which it is most wanted, may, without much violence done to probability, be concluded.

From these provisions against package and permanence, provisions which ought in reason to have applied in common to both sorts of juries, and which accordingly were in appearance made applicable in common to both sorts, the sort called a special jury was thus in reality exempted:—which was the thing to be done.

§ 2.: Device 2—Rendering it unadvisable for a Sheriff to resist the Packing.

Possessed with the now antiquated notions about the importance of real jury trial to liberty, a meddling sheriff (it might at that time of day have been apprehended) might at one time or other start up, who, in the case of special juries, observing juries packed, and Edition: current; Page: [139] formed into a standing corps, in opposition to what might appear to him to have been the intention of the act, might, in relation to this most important application of it, feel disposed to use his endeavours to give effect to it.

For the repression of any such quixotism, it was expedient that provision should be made: and provision was made accordingly.

If, in the application of the act to special juries, he would have greater cause of fear in the event of his using his endeavours to give effect to it, than in the event of his contemning it, the conclusion was—and, it must be confessed, not an unnatural one—that no such endeavours would be used.

Contemning the act (it was accordingly contrived)—contemning the act in this particular, and thus leaving the system of package and permanence undisturbed—he would run no greater nor other risk, than that of having to pay a limited, and that at the utmost a minute, penalty:—a petty sum not exceeding £5 (3 Geo. II. c. 25, § 4.) Supporting the act, he would, in the instance in question (for so also it was contrived) find himself to be committing an offence—an offence called a contempt of court—and thereby subjecting himself to a mass of punishment altogether unlimited, and which, taking into account costs of defence, whether unsuccessful or successful, could not but amount to many times the amount of the penalty in the other case, as above. For, if the master, as above, puts into a list of special jurors (a list settled by him as above) any number of over-served special jurors, the order, given thereupon to the sheriff, to return those along with the other special jurors, is a writ or order of the court, disobedience to that writ or order an offence called a contempt of court, and the punishment inflictable for that offence, imprisonment for a time altogether unlimited, with or without nobody knows what beside.

At the worst, what was made clear was, that in leaving the act, in this respect, in a state of nullity, and the system of package and permanence undisturbed, he could not have anything to apprehend. Called to account (suppose him in any way, though by whom should he be called to account?) for having returned this or that over-served special-juryman: “The court,” he would have to say, “sent me a list of twenty-four persons to be summoned and returned by me to serve as jurors upon this cause, and this man’s name was upon the list:—how, then, could I have done otherwise? Had I omitted him, the court would have punished me as for a contempt.” Thus much aloud. Continuing the conversation to himself—“The king in parliament,” he would naturally say, “may, for aught I know, have forbidden me to return this man: but what I am sure of is—that my Lord Chief Justice has commanded me. Disobeying my Lord Chief Justice, the king (I am sure) would not protect me:—disobeying the king, my Lord Chief Justice (I have reason to think) will protect me. ‘No man can serve two masters;’ two oppositely-commanding masters: a prudent man will serve the strongest:—my Lord Chief Justice being the strongest, my obedience is for my Lord Chief Justice.”

§ 3.: Device 3.—Concealing the Power of Nomination given to the Master Packer.

Another exertion of lawyercraft may be seen in the care taken to throw a veil of concealment over the arbitrariness of the power exercised by the master in the nomination of special jurors. It is by him alone (as we have seen) that the “nomination”—the choice—of the forty-eight is made. Whatsoever appearance of judicial audience and impartiality it might, in the year 1777, and in a case of so much expectation and publicity as Mr. Horne Tooke’s case (See Part I. Ch. VIII. p. 96,) and under a judge no less remarkable for timidity than for arbitrariness, have been deemed advisable to assume, at this time of day, such is the progress that has been made, this arbitrariness may be seen stated without disguise in the books of practice—books written by lawyers for the information of none but lawyers, and without any apprehension of any such jealous eye as, by accident, might be cast on the business in the House of Commons. In the act 3 Geo. II. c. 25, § 15, how is the description given of this operation worded? Answer—in such manner as to convey the conception, that the choice was made somehow or other by somebody else, and that auspices were all that were contributed on this occasion by this judicial personage.—“Required upon motion as aforesaid” . . . (says the act) “to order and appoint a jury to be struck before the proper officer of each respective court.” Before is the word: and false as is the conception that will naturally be conveyed by it, yet so artfully is it chosen, that no charge of impropriety would be found to attach upon it. By this proper officer, it is true, are the forty-eight nominated in the first instance: but then the jury is not said to be struck, that is, the determination of the individuals that are to compose it completed, till, out of the forty-eight, twenty-four are struck off by other hands: viz. twelve by the attorney on each side.

By, and not before (it may indeed be observed,) is, however, the word employed in another part of this same act (§ 17.) But, nemo mortalium omnibus horis sapit: and, as every act of parliament is, or is liable to be, a pasticcio, nothing is more likely than that the clause with before in it, should have been the work of one hand, that with by in it, of another.

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§ 4.: Learned Advice given accordingly to Sheriff Phillips.

Thus it was, that this act, which, at a time of ferment, and in the view of allaying the ferment, was, in show and pretence, provided in the character of a check to corruption in the case of jurors in general, special as well as common, was at the same time, in the case in which the mischief of the corruption was at beyond comparison the highest pitch (being the case wherein the interest which its pretended extirpators had in maintaining and increasing it was also at the same high pitch,) converted, as in the case of the lately-exhibited remedy against parliamentary corruption—converted, by suitable management, and with the happiest success—into a means of not only perpetuating, but aggravating the disease.

Of the state of things here depicted—of the nullity of the power of parliament—of the real supremacy of the judges—of this state of things, the living oracles, to whom Sir Richard Phillips, as above, had, at different times, betaken himself for advice, were, both of them, as will be seen, duly sensible.

This sheriff, being one of the speculative kind of men above supposed—ignorant, as all such men are—ignorant of the real state of existing circumstances—had been amusing himself with the fancy that King George is our king: that in consequence, disobeying King George, a man would be in peril, and that to obey him was the way, and only way, to be safe.

These learned persons knew, both of them, better things. “Your King George,” said they, “(to let you into the secret) is King Log: jump upon him, do anything else upon him you please.—King Ellenborough, King Mansfield, King Macdonald, these are your real ‘kings:’ these, should you venture to disobey but the least of them, you will find him a King Stork. As to your King George, to appeal to the laws of that nominal king, in justification of an act of disobedience committed against the orders of any of these real kings,—doing so, you would but make bad worse: doing so, you would but aggravate disobedience by ‘contempt:’ you might as well appeal to Bonaparte.

Such was their advice: and very good, and, as the Lord Chief Baron says of it, “perfectly just” advice it was. The language in which they gave it was of course their own language—their own branch of the flash language: but the above is the honest English of it. As for the speculatist, the reformer, he found means to understand it, notwithstanding his ignorance: accordingly by these lanterns were his feet directed, as well as his paths lighted.

As to the Lord Chief Baron—so little in use have he and his learned colleagues been, to consider an act of parliament as anything, when their practice or their pleasure has been contrary to it, to him it was all the same whether, in the case of special jurors, the package and the permanence had or had not been prohibited by the act: the exemption provided in that case having been a covert one, it had escaped his observation, and he determined accordingly to conduct himself as it seemed to him, in disobedience to the law.

But to the sheriff, who, had he taken upon himself to give effect to what seemed to him to be the intention of the legislature, would have had to expose himself to the resentment of the judges, it was matter of serious anxiety to endeavour to ascertain what support he might promise himself from the letter as well as from the spirit of the law. The learned framers of this law, not having as yet attained for themselves, nor daring to promise to themselves, for their successors, any such complete and dauntless assurance, as hath now been declared by their existing successors, had made provision of their covert exemptions and loop-holes, as above: and of these loop-holes, our intended Curtius, the reforming sheriff, though he did not receive a perfectly complete or correct draught, received an intimation sufficiently instructive to save him from leaping, to no purpose, into the gulph into which he had been prepared to throw himself.

Thus in the way of useful instruction—instruction which, howsoever speculative, may at any time be made to lead to a practical purpose—the quantity of written matter unavoidably expended upon this contrivance in the art of packing may be turned to as extensive an account as possible. I would recommend it to your consideration, gentle reader, in the character of a sample of the mode in which, in matters of law, the public has been always served, and may always expect to be served, till by such service the destruction of society is completed, so long as, according to the existing order of things, it continues in the line of legislative penmanship to be served by lawyers, meaning fee-fed lawyers: it will continue to be served as hitherto it has been served—always with the same honesty—always with the same views—always with the same effect.

§ 5.: Special Jury System—just suspicion entertained of it.

That all the artifice that could be mustered for the occasion was not more than the urgences of the case required, may be collected from the particular recital prefixed, by way of preamble, to this very clause:—a recital from which it appears, that the indiscriminate extension of the special jury system to all causes, at the pleasure of the party on either side of the cause, had not been regarded altogether without distrust and opposition. Edition: current; Page: [141] “And whereas some doubt” (says that preamble, 3 Geo. II. c. 25, § 15,) “hath been conceived touching the power of his Majesty’s courts of law at Westminster, to appoint juries to be struck before the clerk of the crown, master of the office, prothonotaries, or other proper officers of such respective courts, for the trial of issues depending in the said courts, without the consent of the prosecutor or parties concerned in the prosecution or suit there depending, unless such issues are to be tried at the bar of the same courts.” Thus far the preamble: and then comes the enacting part, still preserving the word before, and giving to the party on either side the power to force upon his adversary the sort of judicatory thus corrupted.

As to “doubt,” if we may believe what is said in the report of a case determined in the year 1737, about seven years after the passing of this act, there could be no doubt in the case: the contrary to what is here insinuated was true beyond all doubt. No more than about four years before the passing of the act, a search had been made in this view: in thirty years then last past, that is, from about the year 1695 to about the year 1725, no instance of the ordering a special jury without consent of parties on both sides had been found: nor is it said that any instance had been found anterior to that period. Notices of the existence of such a power had indeed been now and then thrown out, but which, if that statement be believed (and no reason can be found why it should not,) were without any foundation either in regulation or in practice: were thrown out, and not being true in fact, it seems difficult to imagine with what view they could have been thrown out, unless it were with the view of paving the way for this statute.*

§ 6.: Harmony between the Astutia of 1730, and do. of 1808.

We come now to an observation, which brings the consideration of the so long ago Edition: current; Page: [142] enacted statute within the limits of the present epoch: I mean the use which, on the occasion in question, appears to have been made of it, by the Lord Chief Baron, with the privity of course, and consent, all along, of his learned and reverend colleagues.

The deficiency by which, in respect of the clause prohibitive of permanence, the act was and is rendered inapplicable to the subject of special juries, had probably been observed and understood, but was not thought fit to be indicated: it was not to be indicated—why? lest peradventure, attracting parliamentary notice, it should be supplied.

But, to the sheriff, in pursuance of the advice that had been given him, viz. from the temple, it might have happened to bring the question before the court, viz. in the mode, in and by that advice recommended. If so, his lordship and their lordships were ready for him. On arguing the matter on the ground of the statute, its originally intended inefficiency as to this point would have been brought to light. Though not perhaps through malice, the would-be reformer would have been found a trespasser: and, in addition to costs (costs got by him in the negative sense,) in addition to such his costs, accompanied with a reasonable dose of contempt in the form either of avowed contempt or pity, he would have got his labour for his pains.

Against the hypothesis thus advanced, this or that passage may be objected, in which the prudence of the serpent does not appear quite so conspicuous as the simplicity of the dove.

But should the fact be even admitted, the inference has no need to be admitted along with it. In a line of action to which a man is accustomed, the most consummate skill is not incompatible with equally consummate awkwardness in a line to which he is strange.

The line to which an English lawyer, and in particular an English judge, is accustomed, is that of making the most of the abuses, of which the common, alias unwritten, law, and in particular that branch of it which regards judicial procedure, has been made up, viz. by the hands, and for the benefit of his predecessors: of making his advantage of them on every occasion, of defending them as often as it may happen to them to be attacked: opposing every effectual remedy, and, as often as remedial measures cannot be kept out altogether, infusing, into such as are forced in, as large a proportion of insufficiency and mischievousness, as it may be found possible and prudent to introduce.

The line which is altogether strange to him, is the line of honest and beneficial legislation: including the abolition of such mischievous and inefficient arrangements as may happen to have taken place already as above. Accordingly, Edition: current; Page: [143] it is not by mere ill will—the immediate result of adverse interest—that a true-bred English lawyer, bred in the school of Coke and Blackstone, is prevented from doing anything well in the line of honest and beneficial legislation: it is moreover by genuine and unaffected dimsightedness and awkwardness.

Even though the task to be performed were of no stranger a complexion than that of making a pair of shoes, the most expert as well as learned and eloquent advocate that ever pleaded at an English bar, or judge that ever sat upon an English bench, would probably find it matter of extreme difficulty to make with his own hands any such article. But supposing the task to be the making of a code of laws, in such case, even though by some strange revolution or metamorphosis he were on a sudden to become personally reconciled to it, he would find much less difficulty in the making of a pair of shoes than in the making of any such code of laws as should prove to be (supposing such to be the quality required to be given to it) a really useful instrument in the hand of impartial, undilatory, unvexations, and unexpensive justice. In the making of the shoes, nothing more irksome could have happened to him than the employing, in so relatively useless and unprofitable a work, the necessary quantity of labour and time: from the very first stitch to the very last, he would not have found himself under any such unpleasant necessity as that of violating any maxim or opinion he had been accustomed to regard with affection and respect, or acting in opposition to the interests, opinions, or feelings of any of his friends. In the making of the beneficial body of the laws, he would not only have to lament, at every stroke of the pen, the misapplication of so much labour and time, but at every other line he would feel himself running counter to some such favourite maxim or opinion, as well as running counter to the interests, diminishing the profits, disturbing the ease, lowering the reputation, galling the pride, and, in the words of Lord Ellenborough’s libel law,hurting,” “prejudicing,” “injuring,” and “violating,” the “feelings” of the companions of his youth, and most familiar friends.

He would find himself, or, as now we say, feel himself, running counter to that which, in lieu of the once universally pursued, or professed to be pursued, but now antiquated and exploded end and object—viz. the greatest happiness of the greatest number, has now of late openly, deliberately, and in black and white, been avowed and acknowledged as and for the permanent end and object—if not of all government, of the government of his Majesty’s most favoured set of servants—viz. the preserving from “hurt,” “prejudice,” “injury,” “violation,” and every other such unpleasant accident, the feelings of “great characters,” in “high situations.*

CHAPTER VI.: LEARNED ADVICE FROM THE TEMPLE.

Learned advice, in the shape of a letter from the Temple, having, on this occasion, borne no inconsiderable part in the business, viz. partly as having afforded guidance to the sheriff, partly as having helped to afford legal notice to, and been honoured by the declared approbation of the Lord Chief Baron, the Edition: current; Page: [144] reader will probably expect to see it laid before him here, instead of his being sent in quest of it to another publication.

I proceed, therefore, to exhibit a copy of it, subjoining, in the form of notes, a few observations, of the propriety of which the reader will judge.

“TO MR. SHERIFF PHILLIPS.

Dear Sir,

I agree with you in thinking, that the clause referred to in the inclosed act of parliament applies to special as well as common jurymen;* for if it be inconvenient for the latter to attend oftener than the act requires, it must be much more so to the former, on account of their rank and station in life.

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“But with regard to the sheriff, I think there is a very material distinction between common and special juries. With respect to the former, the returning them upon the venire facias rests with the sheriff; and as he is required by the 5th section of the statute 3 Geo. II. c. 25 to enter or register in a book to be kept for that purpose, the names of such persons as shall be summoned, and serve as jurors on trials at Nisi Prius, with their additions and places of abode, and also the times of their services, so I think that if he were to return any persons to serve as common jurymen oftener than he ought, he would be liable to the penalties of the statute; but with respect to special juries, they are struck before the master of the King’s Bench, and the remembrancer in the Exchequer, under the 13th section of the above act of parliament, which declares that the jury so struck shall be the jury returned for the trial of the issue; and accordingly their names are specially inserted in the distringas. If the sheriff, therefore, who has nothing further to do with the striking of special juries, than attending with the freeholders’ book out of which their names are taken, were to object to the nomination of such as had before served within the limited time, and his objections were overruled, he would not, I think, be liable to any penalty for summoning them upon the distringas; and indeed, if he were to refuse to do so, he might incur a contempt of the court, who would not suffer their process to be disputed* in the execution of it by the sheriff. If you should think it worth your while, however, to rectify the practice which has obtained, of calling so often upon special jurymen to attend at Nisi Prius, the proper mode, I conceive, would be, when you attend with the freeholders’ book for the purpose of striking a special jury, to carry with you the book containing the names of such persons as have already served within the last two terms or Edition: current; Page: [146] vacations, and apprize the master or remembrancer* thereof, requiring him not to nominate them afresh; and if he does, you might try the effect of an application to the court to set aside the nomination, or have others nominated in lieu of those who had served before, on the ground that you might otherwise by possibility be subject to a penalty for summoning them. By this means the opinion of the court would be obtained, and they would probably direct their officers to alter the practice in future.

“It would not, I think, be prudent for you to hazard the incurring a contempt of the court by not summoning any of the jurors named in the distringas, on the ground of their having served before within the limited time; particularly as you would not, I conceive, for the reasons I have given, be liable to a penalty for summoning them; and though the jurors who had served before might be excused from serving again, on producing to you a certificate of their former attendance, yet, I think, that the judge at Nisi Prius would not be inclined to fine the officer who had not nominated them.—I remain, dear Sir, your obedient servant, * * * * * *.”

CHAPTER VII.: ADVICE FROM LINCOLN’S-INN.

§ 1.: This Letter, why introduced here.

The authority of the learned gentleman, who dates from Lincoln’s-Inn, stands upon a footing very different from that of his learned brother, who dates from the Temple:—a very different footing—and it must be confessed, a very inferior one. Both luminaries are indeed alike eclipsed by stars, such as * * * * *: and, by this common occultation, both are placed in the scale of authority thus far on the same level. But the Templar, whose “observations” are so “perfectly just,” is by this adoption become the child of, or rather quoad hoc one person with, the pre-eminently learned judge: to the purpose of the present inquiry, he is in effect Lord Chief Baron: while his learned brother on the other side of Fleet-street, less fortunate in the date of the application made to him, missed thereby the having been admitted to so much as a chance of so honourable an advantage.

Why then introduce him, or his letter, here? says a natural question, and by no means an irrelevant one. The answer is—because it is upon the evidence of this gentleman that the existence of the guinea-corps, and the notoriety of such its appellation, rest.

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As to his title to credence—a remark that has been made already is—how improbable it is, that if a matter of fact, stated as notorious, were not really so, it should be mentioned as such by a professional man circumstanced as this gentleman appears to be. True it is, that from the mention made by him of this guinea-corps, a suspicion might arise, that feelings were harboured by him, heretical and rebellious as towards the powers that be: and that it was for the gratification of these wicked feelings that he had trumped up this story about the guinea-corps, that statement having in fact no truth in it.

But, for the clearing of his character, in which, so far as concerns evidentiary trust-worthiness, the character of