THE
ELEMENTS
OF THE
ART OF PACKING,
AS APPLIED TO
SPECIAL JURIES,
PARTICULARLY
IN CASES OF LIBEL LAW.

BY JEREMY BENTHAM, ESQ.
BENCHER OF LINCOLN'S INN.

London:

PUBLISHED BY EFFINGHAM WILSON,

ROYAL EXCHANGE.

1821.

ADVERTISEMENT.

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.

J. M'Creery, Tooks-Court, Chancery-Lane, London.


CONTENTS.

Page

PART I.

CHAP. I. Occasion of this Work.

l. Work on Libel Law commenced, occasion of it .... 1

Indefinite nature of Libel ........................ 2

2. That Work why postponed to this ................ 4

Are Special Jurymen what they are said to be...... 4

CHAP. II. Juries, their use as a check to Judges ..... 6

CHAP. III. The check how done away by influence.

1. Checks are ever odious to all persons checked .... 10

2. Judges' defences against checks — Corruption and deception.................................. 13

3. Corruption, modes of applying it................ 14

Curious instance of a Judge's satisfying the conscience of a Juror — Note.................... 14

Juries, old packing, like wood-pigeons, or wild horses ..................................... 19

Juries, new packing, like dove-house pigeons, or well-broken geldings ......................... 20

4. Deception, modes of applying it — instruments for the application of it ........................ 20

CHAP. IV. Special Juries, a special engine of corruption.

1. The system briefly stated ...................... 26

The oldest book of practice, no Special Jury mentioned in — Note............................. 27

3. The corruption briefly indicated................ 28

3. The System further developed.................. 29

Special Jury qualified list .................... 30

4. The corruption and dependence developed ...... 32

The Guinea Trade — Note....................... 33

Phantoms to terrify the trembling Guineaman.... 34

5. Aggregate mischief of the System .............. 33

Sale of a species of Indulgences — Note........... 39

6. Views of the lawyers who penned the Acts ...... 42

CHAP. V. Jury unanimity increases the corruption.

1. The effect of corruption how secured by it ...... 44

Mode of forming Verdicts of remote antiquity.... 46

2. Corruptors, regular or casual, both served by unanimity .................................... 47

Reciprocal duties of Advocate and Solicitor...... 48

CHAP. VI. Purposes to which influence on Juries may be made subservient.

1. Blind confidence in Judges not warrantable ...... 53

2. Interests, to the action of which Judges are liable to be exposed.............................. 55

3. Interests, to the sinister action of which English Judges stand actually exposed.................. 59

The training of Judges ........................ 59

More wrongs, more causes; more causes, more fees 60

4. Existing popularity no sufficient ground for confidence — Note ...............................63

Case of Sham Writs of Error, profits from them — Note...................................... 64

The Bench filled from no other fund than the Bar 70

CHAP. VII. Chief purpose, crushing the liberty of the press.

1. Liberty of the press, has it any and what existence?..................................... 72

The press kept in a sort of abortive embryo state. 73

2 Improbity in judges and their high allies; — its hostility to the press........................ 74

The fee system............................... 75

3. Incapacity in judges and their high allies. — Its hostility to the press............................ 78

Indecision, the least doubtful instance............ 79

Men seated above the law have every thing to fear from the liberty of the press.................. 80

CHAP. VIII. The Exchequer Packing Office suffices.. 81

The grand house of call for Guinea men........... 88

Horne Tooke's account of special juries — Note.... 85

Difference between canvassing the conduct of the king and that of a judge — Note................. 88

CHAP. IX. Instruments for crushing the liberty of the press.

1. Doctrines and rules............................ 90

2. 1st rule, concerning disesteem................... 92

3. 2nd rule, concerning feelings.................... 93

4. 3rd rule, concerning unfitness in high situations.... 96

5. 4th rule, concerning dislike..................... 98

6. Terror, issuing from the darkness of the doctrines 106

CHAP. X. Want of adequate obsequiousness morally impossible.

1. Unobsequiousness found unavoidable by a veteran advocate ................................. 109

Lord Ellenborough's opinions on libel — Note..... 110

2. On the part of a trained juryman, unobsequiousness still more hopeless...................... 112

CHAP. XI. Such juries worse than none.

1. Star-chamber preferable to a covertly pensioned jury ....................................... 112

Peculiar beauty of the Star-chamber court...... 113

2. A jury-less judge preferable to a pensioned jury.. 115

PART II.

STATE OF THE PACKING SYSTEM, ANNO 1808.

CHAP 1. Introduction. — Two reforming Shrievalties.

Page 1. Turner and Skinner, anno 1783-4.............. 119

2. Phillips and X, anno 1807-8................... 123

CHAP. II. The Sheriff to the Lord Chief Baron. — Notices.

1. Substance of the letter........................ 126

2. The letter in its own words, with observations... 127

Copious notes to ditto...................128 to 133

CHAP. III. Lord Chief Baron to Sheriff Sir Richard Phillips — Avowries and Defences.

1. Substance of the letter........................ 133

2. The letter in its own words.................... 135

Copious notes to ditto...................135 to 144

CHAP. IV. Observations on the Lord Chief Baron's Defences.

1. Insufficiency of the Defences in any case........ 145

2. Defence 1. Avoidance of vexation.............. 146

3. Defence II. Benefit of instruction.............. 147

4. Mischievous doctrines involved in this Defence.. 149

5. Acknowledged nothingness of the advantage..... 149

6. Short exposure of the supposed advantage....... 151

Benefit of an experienced, and thence of a permanent jury............................... 152

7. Mischievousness of the doctrine further developed 153

8. Lawful improvement, — track it would have proceeded in ................................. 155

Law, much more easily made by a judge than by King, Lords, and Commons................. 157

CHAP. V. Special Jury Corruption, Devices by which it was protected.

1. Device I. Leaving to judges a covert ground for refusing to apply the act.................... 157

2. Device II. Rendering it unadvisable for a sheriff to resist the packing....................... 164

No man can serve two masters; a prudent man will serve the strongest...................... 165

3. Device III. Concealing the power of nomination given to the master-packer................. 165

4. Learned advice given accordingly to Sheriff Phillips................................... 166

5. Special Jury System. — Just suspicion entertained of it ...................................... 168

6. Harmony between the Astutia of 1730, and do. of 1808...................................... 170

The line to which an English lawyer is accustomed.................................. 172

CHAP. VI. Learned advice from the Temple, in a letter, with annotations............. 174

Quarrel between Mr. Canning and Lord Castlereagh — Note ............................. 174

CHAP. VII. Advice from Lincoln's Inn.

1. This letter, why introduced here................ 180

Prophecy, as in the days of Balak and Balaam, become contagious ........................ 181

2. The letter, with annotations................... 182

CHAP. VIII. Maxims concerning Reform, deduced from the above letter.

1. The maxims themselves ....................... 192

2. Corroborations from Lord Eldon's Scotch Reform 194

CHAP. IX. Transactions at the Remembrancer's.

1. The transactions themselves................... 197

2. Instruction gained. — Definitions and Maxims.... 200

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.... 203

2. Packing.................................... 204

3. Cutting..................................... 206

CHAP. II. Double Fee abuse. Plain and embroidered.

1. Ground and embroidery explained.............. 209

2. Double fee abuse, plain — mere waste........... 210

3. Embroidery. — Corruption of jurors, contempt of Parliament................................ 211

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...................................... 217

2. Interests to be provided for, objects to be aimed at 219

3. Arrangements proposed. 1st. In common Jury-causes mix gentlemen with yeomen.......... 220

4. Arrangements continued. 2nd. Special Juries, half and half.............................. 221

5. 3rd. Arrangements continued. — Compensation money to jurymen.......................... 226

6. Arrangements continued. 4th. Fund on which the compensation money shall be charged..... 228

7. Arrangements continued. 5th. Formation of the qualified list, viz. in other counties, &c. as well as in Middlesex............................ 233

8. Arrangements continued. 6th. Corruption by individuals, how prevented. — No party should foreknow his jurymen....................... 236

9. Unanimity increases the aid afforded to corruption by foreknowledge........................... 241

10. Arrangements respecting form, viz. the form of the proposed new law...................... 243

CHAP. II. State of Jury Package in Scotland ...... 244

CHAP. III. Humble proposal for restoring the authority of parliament.

1. Unless the authority of parliament be vindicated, package cannot be abolished ................ 245

2. Contempt put upon the bill of rights by the Lord Chief Baron's package...................... 246

3. Recent contempt of Howard's Act by the detention of acquitted prisoners................... 250

4. Parliamentary operations proposed............. 256

5. Retrospective censure, is it to be looked for?.... 257

6. No fresh acts requiring obedience to existing ones 259

7. Prospect of redress........................... 262


ELEMENTS OF PACKING,
AS
APPLIED TO JURIES.

PART. I.

CHAP. 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 harrassing 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 any thing 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 shew the way at least how this battery might be spiked.

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 the 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 primζval 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 superadded. 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 sometime 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 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 developement — 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 enquiry at the conclusion of the work.

CHAP. 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, every where, 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 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,[1] 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, tor which in the case of the juryman there is no place) cannot so much as listen but at the expence 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 stiled, 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 tor 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 separately[2] 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 secrecy, 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 any where 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.

CHAP. 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 mixt 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 any thing 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, notwithstanding 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 intire, one effect, inseparably attached to the nature of this incumbrance, is — to afford, in 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 pr 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 which ever 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 primζval Grenvillle 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, there* by 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 recognized 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 any thing like constant or even frequent use.[3]

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.[4]

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 antient 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 hard-worded 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 dismiisal) 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.[5]

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 antient and the modern contrivance for nullifying checks, and producing acceptable verdicts. In the antient 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 antient 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 depends: the antient 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, here 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 acknowledged 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 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, every thing 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 en-creased 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 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 expence 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 40 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 enclosed.

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 1,) it has already been shewn 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 shewn 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, any thing — 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 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 godmaker 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 taylor, 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 stiled and intitled 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 incompatibly 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.

When the judge and the jurymen become acquainted with each others persons, being in a state of habitual intercourse, a sort of connection, 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.

CHAP. 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. 2. 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. 2. c. 7; 6 Geo. 2. c. 37. making perpetual 3 Geo. 2. c. 25; 24 Geo. 2. c. 18; 29 Geo. 2. c. 19.[6]

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 right-hand man and dependent of the Chief Judge,[7] 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. 2. 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.[8]

§ 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 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 primζval 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.[9]

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)[10] 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,[11] this Master, this Master Packer, as he may be termed, chooses on the occasion, and for the purpose of each cause, 48.[12] 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.[13] 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.

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.[14]

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 nick-name, is a list which, in the stile 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 expence of thought.

§ 4. The Corruption and Dependence developed.

THESE six[15] 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,[16] 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, arid 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.[17]

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.[18] Number of those who in part of one year applied to be put upon that list, addressing their application to one of the sheriffs, under the erroneous notion of its being in his power to put them upon it, upwards of 100[19] — all spoken of by him by the description of "respectable persons" — not to speak of others.[20]

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 ike persons, by any one of whom the power in question is, with that same degree of facility, capable of being exercised over the one dependant 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 dependant 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 corresponding 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 reconcileable with that of the rest, it will be necessary for him to shape his part in the verdict. Among half a dozen of these high-seated 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 tor 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.[21]

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 dependant'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 Madox's 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 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 antient 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 saccarine 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 "connections, &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-sealed 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 bare-faced 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:[22] 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 compleated as well as begun, by the officer of the court, the subordinate of the then removeable and completely dependent judge.[23]

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 any thing 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 no where, 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, 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 sec 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 "connections, &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.[24] What is reserved to the court is only to say, and that at a subsequent stage, by which of the parties the extra expence shall he 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 expence 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.[25]

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 anticlimax, 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. 2. c. 25. § I. § 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.[26]

§ 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 surprize, 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 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 dependant 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: 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 of 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 malβ 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 expence 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.[27]

CHAP. 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, 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 12, 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 any thing 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, verθ 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 falshood, 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, unanimity, or uniformity, under the pressure of which any thing 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 connection 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 — 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 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 any thing 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,

1. 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 attornies) 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 connections, &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 (hose fees to display to the utmost advantage whatsoever falshoods 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 any body 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.

The solicitor in the smuggling line, can he be said to fulfill his duty as towards each, or any of his clients, if he has not, either in his bureau 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 Guinea-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 consequence.....

But to what purpose go on encumbering 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, were'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 a 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, every where 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 contrΰ, 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 tiny thing 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 to the husbandman, the growth of every thing is sure, yet even of those things the growth of almost every thing 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, 1 find, in pieces muck 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 Cζsar's wife was chaste.

Expect not every thing 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.

CHAP. 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 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 expence, 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 recompence, the vexation is such as to constitute, as we have seen,[28] no inconsiderable part of the aggregate mass of public burthens.[29]

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 inan 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 comprized 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 fixt, 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,[30] in the event of the cause, it may happen to his power, in the event of his endeavouring to afford to that partiality a gratification at the expence 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 any where, 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 fixt them within the sphere of his intercourse and his influence, his will has habitually the effect of law.[31]

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,[32] 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 4, pp. 77-78. 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 Desidta 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 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 recognized 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 any where 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. p. 5.) — to the several most immediate ends, not to look out for any remoter ends: — to the collateral ends — avoidance of unnecessary delay, vexation, and expence — 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