The Spectacled Avenger’s Reading List, 2018

In keeping with New Year’s tradition on this blog, below is a list of books I read last year. Obviously, we’re already into February now, so I must apologize for the lateness of this post, and the paucity of posts generally. My main excuse is that a little over a year ago I was promoted to a new position at work, one with a steep learning curve. Complicating this was that for close to three months my old position went unfilled, so I was effectively doing both jobs (further complicated by a stint on jury duty!). Hence, I had little time or energy for blogging.

This also partly explains the shorter reading list this year. I had less time for reading as well — though thanks to a long commute on public transit, as well as a lack of enthusiasm for smartphones and social media, I still get more reading done than the average person.

It wasn’t just work that curtailed the list. This year I acquired nine volumes of the 1808-1811 edition of the Harleian Miscellany. For those unfamiliar with it, this is a large collection of scarce pamphlets and manuscripts from the vast library collected by Robert Harley, Earl of Oxford (1661-1724) and his son Edward. My method of reading this is what I would call “grazing”. I draw a volume at random from the shelf, scan the table of contents for a pamphlet that looks promising, and then read it. I have devoted many pleasurable hours to this activity, particularly in the past six months. But since I never completely read a volume systematically, from cover to cover, these extensive Harleian ramblings are not recorded in the list below.

So, in terms of quantity, there are 64 items on this year’s list. Although that’s nothing to sniff at, to put it in context, last year – a more typical one – I read 83.

In terms of content, there is less fiction than the previous two years, though it’s still represented (e.g. Austen, Brown, Fitzgerald, Hogg, Sterne). Poetry is also well-represented (though it usually is): Horace, Wordsworth, Herbert, Marlowe, and Golding’s translation of Ovid. Unlike in 2017, there are no plays.

Prominent are books on parliamentarianism  & parliamentary history (e.g. Chandler, Timberland, Bradshaw, Robert’s Rules of Order, Bourinot’s Rules of Order, Jefferson’s Manual and the Rules of the House of Representatives). Without boring you with details, this is partly out of professional interest, stemming from my new position. But I also found it very interesting reading, and I think it is a trend that will continue this year.

Other than that, there are no prominent patterns to my reading this year, except perhaps for a slight tilt towards 17th-century English Toryism and Anglicanism: Lord Clarendon, Richard Hooker, The Book of Common Prayer, Charles I’s Eikon Basilike (as well as Jeremy Taylor sermons, which won’t appear until next year’s list, as I’m still reading them).

As with previous years’ lists, those books that I particularly enjoyed are bolded.

*    *    *    *

ALDERSEY-WILLIAMS, Hugh. The Adventures of Sir Thomas Browne in the 21st Century. London: Granta Publications, 2015.

AUBREY, John. John Aubrey’s Brief Lives. Richard Barber (ed.). London: The Folio Society, 1975.

AUSTEN, Jane. Pride and Prejudice. London: Folio Society, 1975.

BERKELEY, George. A Treatise concerning the Principles of Human Knowledge, and Three Dialogues between Hylas and Philonous. London: Jacob Tonson, 1734 (facsimile, Menston, UK: Scolar Press, 1971.

BLAKE, Sara. Administrative Law in Canada (5th edition). Markham, ON: LexisNexis, 2011.

BRADSHAW, Kenneth and David PRING. Parliament and Congress. London: Quartet Books, 1973.

BROWN, Charles Brockden. Arthur Mervyn: or, Memoirs of the Year 1793. Kent, OH: Kent State University Press, 1980.

BUCK, George. The History of the Life and Reigne of Richard the Third. London: W. Wilson, 1647 (facsimile, London: EP Publishing, 1973).

BURTON, Robert. The Anatomy of Melancholy (Vol. II). London: Everyman Library, 1932.

CHANDLER, Richard (ed.). The History and Proceedings of the House of Commons (Vol. I: 1660-1680). London: Richard Chandler, 1742.

CHARLES I. Eikon Basilike, or The King’s Book. London: Alexander Moring, 1904.

CHURCH OF ENGLAND. The Book of Common Prayer. New York: Everyman’s Library, 1999.

CLARENDON, Edward Hyde, Earl of. The Life of Edward Earl of Clarendon (Vol. I). Oxford: Clarendon Press, 1817.

COKE, Sir Edward. Three Law Tracts. William Hawkins (ed.). London: J. Worrall, 1764 (facsimile, Abingdon, UK: Professional Books Limited, 1982).

COLERIDGE, Samuel Taylor. Collected Works, Vol. 6: Lay Sermons. R. J. White (ed.). London: Routledge and Kegan Paul, 1972.

CUMMINGS, Brian (ed.). The Book of Common Prayer: The Texts of 1549, 1559, and 1662. Oxford: Oxford University Press, 2011.

DESCARTES, René. Philosophical Essays and Correspondence. Roger Ariew (ed.). Indianapolis: Hackett Publishing Company, 2000.

DISRAELI, Benjamin. Tory Democrat: Two Famous Disraeli Speeches. Sir Edward Boyle (ed.). London: Conservative Political Centre, 1950.

FITZGERALD, F. Scott. Tales of the Jazz Age. New York: Charles Scribner’s Sons, 1966.

GODWIN, William. The Enquirer: Reflections on Education, Manners, and Literature. London: G. G. and J. Robinson, 1797 (facsimile, New York: Augustus M. Kelley, 1965).

GODWIN, William. Enquiry concerning Political Justice (Vol. I). London: G. G. and J. Robinson, 1798 (facsimile, Toronto: University of Toronto Press, 1969).

HART, H. L. A. Law, Liberty, and Morality. Stanford, CA: Stanford University Press, 1963.

HAYEK, Friedrich A. Law, Legislation and Liberty (Vol. 1: Rules and Order). Chicago: University of Chicago Press, 1973.

HAYEK, Friedrich A. Law, Legislation and Liberty (Vol. 2: The Mirage of Social Justice). Chicago: University of Chicago Press, 1976.

HAYEK, Friedrich. A. Law, Legislation and Liberty (Vol. 3: The Political Order of a Free People). Chicago: University of Chicago Press, 1979.

HELVÉTIUS, Claude Adrien. A Treatise on Man; His Intellectual Faculties and His Education (Vol. I). W. Hooper (trans.). London: Vernor, Hood and Sharpe, 1810 (facsimile, New York: Burt Franklin, 1969).

HELVÉTIUS, Claude Adrien. A Treatise on Man; His Intellectual Faculties and His Education (Vol. II). W. Hooper (trans.). London: Vernor, Hood and Sharpe, 1810 (facsimile, New York: Burt Franklin, 1969).

HERBERT, George. The Complete English Works. Ann Pasternak Slater (ed.). New York: Everyman’s Library, 1995.

HESIOD. Theogony, Works and Days, Testimonia. Glenn W. Most (trans.). Cambridge, MA: Harvard University Press, 2006.

HOGG, James. The Private Memoirs and Confessions of a Justified Sinner. John Carey (ed.). London: Oxford University Press, 1969.

HOOKER, Richard. The Works of that Learned and Judicious Divine, Mr. Richard Hooker, Containing Eight Books of the Laws of Ecclesiastical Polity (Vol. I). Oxford: Clarendon Press, 1807.

HORACE. A Poetical Translation of the Works of Horace (Vol. II). Philip Francis (trans.). London: W. Strahan et al., 1778.

JOHNSON, Charles W. Constitution, Jefferson’s Manual, and Rules of the House of Representatives of the United States (105th Congress). Washington, DC:  U.S. Government Printing Office, 1997.

JOHNSON, Samuel. A Journey to the Western Islands of Scotland (Works, Vol. IX). Mary Lascelles (ed.). New Haven, CT: Yale University Press, 1971.

KEYNES, John Maynard. The General Theory of Employment, Interest and Money (Collected Works, Vol. VII). London: Macmillan, 1973.

LOCKE, John. Questions concerning the Law of Nature. Robert Horwitz, Jenny Strauss Clay, and Diskin Clay (eds. and trans.). Ithaca, NY: Cornell University Press, 1990.

LOCKE, John. An Essay concerning Human Understanding. Peter H. Nidditch (ed.). Oxford: Clarendon Press, 1990.

MARLOWE, Christopher. The Poems. Millar MacLure (ed.). London: Methuen and Co., 1968.

MILL, John Stuart. On Liberty. New York: Everyman’s Library, 1992.

OVID. Ovid’s Metamorphoses: The Arthur Golding Translation 1567. Philadelphia: Paul Dry Books, 2000.

POPE, Alexander. Selected Prose of Alexander Pope. Paul Hammond (ed.). Cambridge: Cambridge University Press, 1987.

ROBERT III, Henry M., et al. Robert’s Rules of Order Newly Revised (11th edition). Philadelphia, PA: Da Capo, 2015.

ROCHEFOUCAULD, François, Duc de La. Maximes. London: Arthur L. Humphreys, 1902.
ROWTHORN, Robert. The Costs and Benefits of Large-scale Immigration: Exploring the economic and demographic consequences for the UK. London: Civitas, 2015.

SHAFTESBURY, Anthony Ashley Cooper, 3rd Earl of. Standard Edition, III,1: Correspondence (Letters 1-100). Stuttgart-Bad Cannstatt: Frommann-Holzboog, 2018.

SHAFTESBURY, Anthony Ashley Cooper, 3rd Earl of. A Letter concerning Enthusiasm, to My Lord *****. London: J. Morphew, 1708.

SHAFTESBURY, Anthony Ashley Cooper, 3rd Earl of. Sensus Communis: An Essay on the Freedom of Wit and Humour. London: Egbert Sanger, 1709 (facsimile, New York: Garland Publishing, 1971).

SHAFTESBURY, Nicholas Ashley-Cooper, 12th Earl of, and Tim KNOX. The Rebirth of an English Country House: St. Giles House. New York: Rizzoli, 2018.

SIDNEY, Algernon. Court Maxims. Hans W. Blom, Eco Haitsma Mulier, and Ronald Janse (eds.). Cambridge: Cambridge University Press, 1996.

SMITHERS, Peter. The Life of Joseph Addison (2nd edition). Oxford: Clarendon Press, 1968.

SPENCE, Joseph. Observations, Anecdotes, and Characters of Books and Men (Vol. I). James M. Osborn (ed.). Oxford: Clarendon Press, 1966.

STANFORD, Geoffrey. Bourinot’s Rules of Order (4th edition). Toronto: McClelland and Stewart, 1995.

STEELE, Richard, Joseph ADDISON, et al. The Tatler (Vol. IV). George A. Aitken (ed.). London: Duckworth and Co., 1899.

STEELE, Richard, Joseph ADDISON, et al. The Guardian. John Calhoun Stephens (ed.). Lexington, KY: University Press of Kentucky, 1982.

STERNE, Laurence. Tristram Shandy. New York: Everyman’s Library, 1991.

SUN TZU. The Art of War. Peter Harris (trans.). New York: Everyman’s Library, 2018.

TIMBERLAND, Ebenezer (ed.). The History and Proceedings of the House of Lords (Vol. II: 1697-1714). London: Ebenezer Timberland, 1742.

TIMBERLAND, Ebenezer (ed.). The History and Proceedings of the House of Lords (Vol. VI: 1738-1740). London: Ebenezer Timberland, 1742.

TIMBERLAND, Ebenezer (ed.). The History and Proceedings of the House of Lords (Vol. VII: 1740-1741). London: Ebenezer Timberland, 1742.

TIMBERLAND, Ebenezer (ed.). The History and Proceedings of the House of Lords (Vol. VIII: 1741-1743). London: Ebenezer Timberland, 1743.

VANCE, J. D. Hillbilly Elegy: A Memoir of a Family and Culture in Crisis. New York: Harper, 2016.

WALPOLE, Horace. Selected Letters. Stephen Clarke (ed.). New York: Everyman’s Library, 2017.

WHICHCOTE, Benjamin. Select Notions. London: Israel Harrison, 1685 (facsimile, Menston, UK: Scolar Press, 1971).

WORDSWORTH, William. Selected Poems. New York, Everyman’s Library, 2000.

A Lifeless Load, a Nameless Thing

The death of King Priam

I am currently reading Joseph Spence’s (1699-1768) Observations, Anecdotes, and Characters of Books and Men (Oxford, 1966, “Anecdotes” for short). It is a large collection of table talk and backstairs gossip, harvested mostly from conversations Spence had with Alexander Pope and his circle. It contains some very funny anecdotes, one of my favourites being a story about the Duke of Marlborough’s legendary love of money. Shortly before his death, the old Duke was playing cards with Dean Jones one evening at Bath, and when they finished, he was up on his opponent by about sixpence. This obscenely wealthy magnate, the builder of that monstrous pile, Blenheim Palace, pestered Jones for that sixpence all evening. He claimed that he would be needing it to pay for a chair to take him home that night. Poor Jones told him he had no silver on his person, but he eventually broke down under Marlborough’s incessant nagging and somehow managed to make change from a guinea and thus paid the glorious Duke his sixpence. However, later that night it was observed that Marlborough opted to walk home instead, to save the cost of a chair (see Anecdotes #369).

Besides these entertaining biographical tidbits, much of Spence’s Anecdotes is filled up with conversations in which Spence and Pope nerd out over the technical and critical aspects of the poetical arts. At some point in early May, 1744 there occurred the following exchange between the two men:

“‘I did not use to like a verse in the Iliad,’ [said Spence,] ‘perhaps from its having a liquid in almost every word in it:

          He lies, a lifeless Load, along the Land.’

Aye [said Pope,] but that does not make it run on like a river-verse; it only weakens it. ‘Tis as the thing described, nerveless and yet stiff” (Anecdotes #399).

Now, the line that so bothered Spence was Book XV, line 507 in Pope’s translation of the Iliad, describing the dead Lycophron, slain by Ajax. As consummate an artist and critic as Pope was, I am nevertheless compelled to side with Spence here, though perhaps for other reasons than his.

First, despite Pope’s protestation to the contrary, the line does seem to run on in a slow meandering fashion. Indeed, the preponderance of “liquids” – the lack of hard consonants – does not merely “weaken” the line; it downright kills it. If Pope’s intent was to illustrate by sound the image of a “lifeless load”, he succeeded, though to ill effect in my opinion.

Second, the problem is not merely that there is a preponderance of liquids; rather, there is a preponderance of the same liquid. The alliteration of “L” is overdone, and the overall effect is to give the line the grating sing-song quality of Middle English alliterative verse, thereby destroying whatever sense of loftiness the line was meant to convey. The line’s subject matter should make it point to the reader and say “This terrible thing has happened: laugh if you can.” Instead, the line is practically a burlesque and is more apt to invoke laughter than suppress it.

Third, perhaps less importantly, the choice of “along” as a preposition is somewhat jarring. There seems to me to be an active quality to it that is out of keeping with something dead. One more often comes across the preposition “along” in tandem with an active verb, as in the following other examples from Pope’s works:

        “On which a mimic Serpent creeps along”
                                                      (Iliad, XI.50)

         “Flies o'er th' unbending Corn, and skims along the Main.”
                                                     (An Essay on Criticism, l. 373)

         “A needless Alexandrine ends the Song,
          That like a wounded Snake, drags its slow Length along.”
                                                                          (Ibid. ll. 356-357)

A dead body neither creeps along, skims along, nor drags itself along. It just lies. And although I suppose it’s not grammatically incorrect to say a dead body may lie along something, it more typically lies upon it, as would a rock, a bag of sand, or some other weighty but lifeless object. These are passive things for which the default motivating force, if they can be said to have one at all, is the downward pull of gravity.

Ironically, the last example – “That like a wounded Snake, drags its slow Length along” – has a similar lazy dulling effect as the “lifeless load” line that disgusted Spence, except that here the effect is intentional; it makes a point.

Perhaps the most unfortunate thing about Pope’s lifeless line of lolling “liquids” is that in writing it, he knew of and was probably imitating a much better example. I refer to Dryden’s translation of Virgil’s Æneid, II.560-561, describing the dead body of King Priam:

         “On the bleak Shoar now lies th’ abandon’d King,
          A headless Carcass, and a nameless thing.”
                                          (Dryden’s Æneid, II.762-763)

It is a haunting end to a great man, and my only quibble with the versification is that in the first line I would remove “now”, which really does no work, and expand the contracted second definite article, as in

         “On the bleak shore lies the abandoned King”

But this is a mere bagatelle. As they stand, the lines approach perfection, insofar as they most effectively evoke the terrible image of a great leader of men, whom “Monarchs like Domestick Slaves obey’d,” reduced to pointless carrion. The entire passage from which they are plucked raises up a sublime terror in the reflecting reader, who is left enveloped in a void silence.

Curiously, as Pope (unsuccessfully) imitated his hero Dryden’s lines, Dryden was himself imitating Sir John Denham (1614-1669). “Imitating” is putting it charitably. In 1656, Denham published The Destruction of Troy, his translation of the first 561 lines of Book II of the Æneid. In it, we find the following couplet (ll. 547-548):

         “On the cold earth lyes this neglected King,
          A headless Carkass, and a nameless Thing.”

If I may be allowed to end on a note of pettiness, mark that the King here lies on the cold earth, not along it.

Actually, I will not quite end there. As far as I can make out (for the geography is not entirely clear), in Dryden’s Æneid, Priam was killed by Pyrrhus upon an altar, presumably somewhere in his palace. Now, how did his body get from there to “the bleak shore” upon which it lay? I don’t have an answer, but I can’t help thinking that a reader of Dryden’s day might have thought, perhaps subliminally, of a different sense of the word “shore” here, for at that time it was also a slang term for a sewer, as in the following obscene lines from Lord Rochester, writing about a notorious London prostitute of his day:

         “Bawdy in thoughts, precise in Words,
          Ill natur'd though a Whore,
          Her belly is a Bagg of Turds,
          And her C--t a Common shore.”
                          (“On Mistress Willis,” ll. 17-20)

The thought of great Priam’s corpse lying in such circumstances would make his death seem even more pathetic. Against this interpretation, however, is the fact that a body would normally lie in a sewer, not on it.

So here lieth the lesson: As I discovered when trying to learn German many years ago, those little prepositions can mean everything. Indeed, to paraphrase Wittgenstein (or was it Lichtenberg?), an entire metaphysics might be drawn from them.

The New Family Compact

In 1837, in what is now Ontario but was then called “Upper Canada”, there was a rebellion. The rebels were fighting for the cause of representative government in a province which, at the time, was largely ruled by a relatively small clique of Tory landholders called the “Family Compact”. The extent to which members of this compact were related to each other has perhaps been exaggerated, but they were certainly socially tight-knit, forming a quite exclusive ruling class.

The Whiggish interpretation of this history we learned in school was that although the rebellion was quickly put down, the cause for which the rebels fought eventually triumphed. It’s a comforting notion, but I’ve noticed of late that if it were ever true, it is becoming ever less so now. I was reminded of this by a bit of recent news.

According to a July 18, 2018 Toronto Star column, Blayne Lastman, the son of vulgar furniture salesman and former Toronto Mayor Mel Lastman, was considering a run for his father’s old job (I should qualify by saying that Blayne is Mel’s legitimate son). As the Star columnist rightly noted, “Why else but the sheer fact of his surname does a guy like Blayne Lastman feel comfortable declaring an interest in running for mayor without first presenting to the public a single coherent idea about how he will make the city a better place?” Blayne Lastman’s qualifications for office consist exclusively of a) running his family’s furniture store, and b) being the (legitimate) son of a former mayor.

The last thing Torontonians, Ontarians, and Canadians need is another family dynasty. Our current family compact makes the old one seem quaint by comparison. Below is a sample of the familial rot in all three levels of government here in “Toronto the Good”. It is by no means an exhaustive list and could be significantly extended. It makes for sobering reading and goes far towards explaining the poor quality of governance in this city, this province, and indeed this nation. One wonders whether representative government really did triumph after 1837, or whether perhaps it is once again time for torches and pitchforks.


City of Toronto

Michael Ford: Current Toronto councillor; nephew of Doug Ford, current Premier of Ontario and former Toronto councillor. Nephew of Rob Ford, former councillor and infamous crack-smoking Mayor of Toronto.

Josh Colle: Current Toronto councillor; son of former Ontario MPP Mike Colle.

Joe Cressy: Current Toronto councillor; son of former Toronto councillors Gordon Cressy and Joanne Campbell. Joanne had been Gordon’s executive assistant while he was on council, and was elected to his seat after he stepped down. She subsequently married him. Oh, if only the walls of some of those City Hall offices could talk, what tales they could tell…

Mike Layton: Current Toronto councillor; son of Jack Layton, former Toronto councillor, former federal MP, and Leader of the Opposition. Jack was himself the son of former federal MP and cabinet minister Bob Layton. Mike's stepmother is also a former Toronto councillor.

Stephen Holyday: Current Toronto councillor; son of Doug Holyday, former Toronto councillor.

Frances Nunziata: Current Toronto councillor; sister of former federal MP John Nunziata.

Michelle Holland: Current Toronto councillor; wife of former Toronto councillor and Ontario MPP Lorenzo Berardinetti.

Christin Carmichael Greb: Current Toronto councillor; daughter of former federal MP John Carmichael.

David Shiner: Current Toronto councillor; son of former North York borough councillor Esther Shiner.
 
Mike McCormack: Current head of Toronto’s police union; son of former Toronto chief of police William McCormack. He has been the subject of several criminal charges during his career, including corruption, discreditable conduct, and insubordination. Untouchable criminal thug.


Province of Ontario

Doug Ford: Current Premier of Ontario and former Toronto councillor; uncle of current Toronto councillor Michael Ford; son of former Ontario MPP Doug Ford Sr.; brother of Rob Ford (see above, under Michael Ford).

Christine Elliott: Current Ontario MPP and cabinet minister; widow of Jim Flaherty, former Ontario MPP and cabinet minister and former federal Minister of Finance.

Caroline Mulroney: Current Ontario MPP and cabinet minister; daughter of former Canadian Prime Minister Brian Mulroney.

Mike Harris Jr.: Current Ontario MPP; son of former Premier of Ontario Mike Harris.


Government of Canada

Justin Trudeau: Current Prime Minister of Canada; son of Pierre Trudeau, former Prime Minister of Canada.

Niki Ashton: Current federal MP; daughter of Manitoba provincial cabinet minister Steve Ashton.

Daniel Blaikie: Current federal MP; son of former federal MP Bill Blaikie. Serves in his father’s former riding.

Tony Clement: Current federal MP and former cabinet minister; adopted son of former Ontario MPP and cabinet minister John Clement.

Diane Finley: Current federal MP; widow of political operative and former Senator Doug Finley.

David McGuinty: Current federal MP; brother of former Premier of Ontario Dalton McGuinty; son of former Ontario MPP Dalton McGuinty Sr.

Geoff Regan: Current federal MP and Speaker of the House of Commons; son of former Nova Scotia Premier and accused sex offender Gerald Regan. His maternal grandfather was a federal MP.

Francesco Sorbara: Current federal MP; relative of Greg Sorbara, former Ontario MPP and Minister of Finance. In Ontario, the extended Sorbara clan are a “family” in much the same sense that the Sopranos or the Gambinos are families. I could tell stories, but it’s safest not to.

Adam Vaughan: Current federal MP and former Toronto councillor; son of Colin Vaughan, also a former Toronto councillor. It’s also worth noting that Adam succeeded his father as political reporter for a certain local television station back in 2000. A very famous mediocrity in Toronto politics.

UPDATE: Municipal elections were held on October 23, 2018, after the above was posted. First, the good news: Shiner, Holland, Colle, and Greb are out. Unfortunately, Colle was replaced by his father, Mike Colle. Now, the bad news: Due to the fact that for this election, the number of wards was reduced from 47 to 25, the proportion of Toronto council seats held by the family compact has increased, from 19.15% to 24%. Several incumbents were replaced by other incumbents, as the circle closed. In Vancouver, Pete Fry was elected to a seat on Vancouver's city council. Pete's mother is Vancouver-area federal MP and race-baiter Hedy Fry. Fry mater is currently the longest serving MP in the House of Commons, having been first elected in 1993 (term limits anyone?). Oh, and history was also made in this set of municipal elections, as it was the first time that a married couple were both elected as trustees for the Toronto District School Board - quite a feat, as they were elected in different wards. Since they live together, might one assume that perhaps the ward boundary runs right down the centre of the marital bed? In any case, another triumphant day for democracy in Canada.

A Worthwhile Sacrifice?

In my previous post I narrated my experience with jury selection. I took especial care to emphasize the repeated attempts by judges and clerks alike to convince us that the sacrifice we were making as jurors and potential jurors was a noble one. I ended by proposing to reflect on whether it was a worthwhile one. I offer the fruits of my enquiry are below.

A Just-So Story

Once upon a time, long ago, the great majority of people lived on farms or in very small villages, where everyone knew everyone else. Back then, in this rural world, your neighbours didn’t just know your name. They knew your “business”. And there was a good chance you were related to most of them in some way.

In this old-timey world, everything was intimate, but intimacy didn’t mean that everything was peaceful. Disputes can sometimes be all the uglier for being between relatives. Often there was a local court to deal with things, but sometimes it fell under the jurisdiction of Crown courts. Indeed, over time, the Crown came to absorb more and more of this local legal business (the law dispensed in these courts has come to be called “the common law”), as manorial courts fell into disuse. However, the Crown’s judges usually didn’t live in the village or district where a case arose, but rather travelled on circuit from place to place.

Not being from the district, these judges could not be expected to know the local facts and details pertinent to a case, such as whether Blackacre farm had been in the possession of the Stiles family since the reign of King Richard I, or whether young John of Stiles had reached the age of majority. Perhaps a local old-timer remembers that young John was born during the great wind storm of – when was it? – at Blackacre, which his father owned at the time. Another old-timer remembers that the said storm occurred in the third year of Richard’s reign (1191), etc.

Perhaps no single person in the district would know these things. But at least some from among a group of a dozen or so of them probably would. The judge would be the expert on what the law was, but this group of a dozen locals would be the experts on what the relevant facts were. Once the facts were determined, it was the judge’s job to apply law to facts.

(Actually, the last statement is a mischaracterization. To be more precise, each party to the case would state their version of the relevant facts. Then the judge would instruct this group of locals on the law: if the jury finds the facts to be X, then the law says the jury must find for A. In this sense, the common law surprisingly has much in common with the old Roman formulary system.)

In this just-so story, an institution such as a jury makes sense. So here is one justification for the jury system: Juries possess the expertise to determine the facts of a case.

If this justification once held water, it doesn’t anymore. We live in a very urbanized society, what Friedrich Hayek referred to as a “Great Society”. In this society, my knowledge of my neighbor doesn’t extend much beyond her name. I know little about her “business”, and I know less about her personal history or circumstances. And I really know nothing about my fellow jurors.

Indeed, so far have we drifted from this original purpose of a jury, that now jurors are specifically excluded from serving if they have any relevant personal knowledge of a case or its parties. In other words, in order to avoid any apprehension of bias or conflict of interest, we now in part select jurors for their very ignorance of the facts of a case.

“But all is not lost,” the defender of the jury system might say. “We take a group of people selected at random, and together they ‘find’ the facts of a case. They decide which version of the facts presented seems most plausible to a group of people of average intelligence. And the randomness of their selection ensures that they embody the standards – moral and critical – of the average person. To use the famous legal expression, they embody the wisdom of ‘the man on the Clapham omnibus’.”

There are at least two problems with this. First, the process of jury selection is far from random. The system of voir dires and peremptory challenges means that jurors are really selected for any number of traits and characteristics, among which are rarely if ever included intelligence or “reasonableness”. Second, unlike in our just-so story, in a modern “Great Society” neither the judge nor the juror has any special expertise with regard to the facts. Yet, we must have someone act as the arbiter of what is the case. Let us drop our first objection for the moment and assume that the jury is randomly selected and therefore of average intelligence and “reasonableness”. We therefore leave it to them to be our arbiters of fact. Now I ask, why should we settle for average? In what other sphere of public life is intellectual mediocrity regarded as a positive virtue, even a qualification for office? Would we not be better served by having the facts decided by someone of above-average intelligence? And if it is safe to assume that an educated and trained judge is of above average intelligence, why not have the judge decide both law and facts, thereby dispensing with juries altogether?

A Bulwark against Tyranny

Here is another justification that has been offered for the jury system: It acts as a barrier to despotic or corrupt action by the Crown through its judges. Let us separate these two things, despotism and corruption, for we are really dealing with two different arguments.

Worries about judges acting despotically have not really been a thing for a long time. One does occasionally hear complaints about judges “making law”. Sometimes this is a valid criticism. For instance, I personally believe that Canada’s Supreme Court justices have been our unofficial legislators on constitutional matters since about 1982, issuing decisions which, over time, have mounted up to a body of jurisprudence that makes a mockery of our Charter of Rights and Freedoms. No sane person not blinded by leftist ideology can look upon the Court’s post-Charter thinking on collective bargaining or group rights and call it good. Indeed, it has got to the point that I now favour scraping the Charter altogether and bringing back a suitably amended version of Diefenbaker’s perfectly sensible Bill of Rights (1960). Though it would probably be only a matter of time until the justices made a mockery of that too.

But I digress. Yes, courts do occasionally overstep their bounds, often with public support. But judges do not throw people into dungeons indefinitely because they don’t like the tone of their voice or the look of their face. They don’t inflict savage punishments for minor infractions, nor impose penalties not provided for in law, and not without due process. Blatant malfeasance by judges is punished with removal from the bench. They are subject to high professional standards and scrutiny. As much as I sometimes disagree with their judgements, there are no judge-despots in this country. And since they no longer serve or are paid at the pleasure of the sovereign, and are only really removable for malfeasance or incapacity, judges in our system tend to make poor servants for potential despots. We have an independent judiciary.

Are there corrupt judges? That’s harder to say, since unlike despotism, corruption tends to avoid daylight. But again, they serve in a position that is relatively secure, well-remunerated, and commands great respect. A judge would have to be short-sighted and greedy indeed to potentially give all this up for a mere bribe. The question here really should be, is it easier to bribe a judge than a juror? I suspect the answer must be “no”.

Here it might be objected that although it may be easier to bribe a juror than a judge, bribing twelve jurors is another matter. Perhaps. But consider this: the requirement for jury unanimity means that an accused criminal really only needs to bribe one of them. In any case, if a panel of jurors is really a safeguard against corruption, then why not use a panel of judges, as is done in many European systems?

Of course, corruption doesn’t just come in the form of bribes. Instead of such carrots, a corruptor may employ sticks, i.e. intimidation. Here the question should be, is it easier to intimidate a judge or a juror? I think the answer is obvious. For reasons outlined above, a judge with social prestige and the full might of the state behind her will likely be harder to intimidate than a powerless nonentity like me picked from the street at random.

Between the arguments I have offered so far and the earlier description of my experience in jury selection, with all its lavish waste of time, money, and human resources, I flatter myself in thinking that you too, Dear Reader, are beginning to see the jury-as-pillar-of-democracy and jury-as-noble-sacrifice tropes for what they are — namely, pious bullshit. In any case, I’d like to end with a few additional observations on the jury system made by economist Gordon Tullock (1922-2014).

Tullock on Juries

Regarding the supposed randomness of jury selection, Tullock notes that most jurisdictions (including my own) draw their pool of names from voter registration lists. However, in the US only about 60% of eligible voters are registered. And the unregistered are disproportionately poor or visible minorities (Tullock 2005:427).

Then there are the excuses for not serving, which tend to be most used by “intelligent jurors with a significant opportunity cost of time” (p. 428). In other words, time is money and those whose time is worth more of it will find ways not to serve. On average the wealthy and more intelligent are more likely to avoid serving on a jury.

And then there are those voir dires and peremptory challenges, which, besides being costly, are “devastating for any notion of ‘a jury of one’s peers’” (ibid.).

The aggregate effect of all this on the resultant selection is that

“Juries typically consist… of individuals of below average intelligence, of below average income, and of below average productivity. They are made up disproportionately of the old, the lame, and the unemployed…. [They] tend to be extremely non-random, unusual representatives of the population at large.” (ibid.)

They will also tend to be ignorant of the law, less able to understand instructions, and are further kept in the dark by arcane rules of evidence.

Tullock makes much of this issue of intelligence, perhaps more than I would. I had suggested earlier that a jury selected at random will result in a jury of about average intelligence. Tullock’s view on this is much more pessimistic: not only is selection not truly random, but it perversely selects for below average intelligence and below average knowledge! As he notes,

“The average person is of average intelligence and average information. The jury process begins by removing from its sample anybody who is well informed with respect to whatever it is the jury is supposed to look into, thus ensuring ignorance. The jury has no strong economic motive to work hard and understand the material presented to it.” (pp. 349-350)

If you have any compelling arguments for preserving this archaic, onerous, ineffective, and expensive system, I’d love to hear them.

Works Cited

TULLOCK, Gordon. Law and Economics (Selected Works, Vol. 9). Charles K. Rowley (ed.). Indianapolis: Liberty Fund, 2005.