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For OCTOBER, 1816.
NATIONAL AND PARLIAMENTARY NOTICES,
PROSPECTIVE AND RETROSPECTIVE.
THE FIRST, SECOND, AND THIRD
OF THE LORD PRESIDENT OF THE
are by no means in a state to form a
THE LORD JUSTICE CLERK,
LORD CHIEF COMMISSIONER OF THE from equalizing the guilt and the penalty and of two penalties, one lighter, the other heavier, he would chuse the
Ordered by the House of Commons to be Printed, most severe, from the natural impulse 27th March, 1816.
of his feelings, although correct equity might declare itself satisfied with the more moderate.
THE distinguishing talent of Man above the brutes is, that intellectual faculty of discernment which qualifies him for social life; that Reason, the exercise
in, and transfers to others of the comIn this stage of things Society steps muuity the right and the duty of pro
of which exalts him in the rank of crea-nouncing on the case. They are indifferent; they are not inflamed by passion, nor provoked by sense of injury, nor beyond controul of cool and unbiassed judgment. The sovereign power of the state appoints Judges, the law appoints the penalty, and (among ourselves) this is inflicted, in proportion to what aggravations, or abatements, have distinguished the case.
tures, and marks him as Supreme of all terrestrials. That this should ever be betrayed into error, or be overcome by violence, is extremely to be regretted; yet so it is; the Passions of humanity act in opposition to reason, and too often do violence to a power, to which they should be altogether subservient, as their established guide and governor. Insomuch that as Reason qualifies a man for forming one of a number associated
The law is the same for a whole kingdom; and the Judges who are to admi
in general community, so Passion disqua-nister it-are the same; but, from the nature of things, they must be strangers to the locality; and strangers cannot possibly be informed on a variety of minute particulars, which, by their appli cation, vary the force of the proofs brought in support, or refutation of a charge. Strangers appear at one time; but, they may or may not appear again; or, after an interval so long, that the memory of misconduct may be weaken
lifies him, and counteracts the advantages attendant on reason. If passion becomes unruly, and discovers itself in overt acts, the community suffers in its combined interest, or some individual suffers in his particular interest. To entrust the individual, thus suffering, to do himself justice, is to confide a power to his passions, in turn; his sense of indignity, his self esteem, his revenge, VOL. V. No. 25, Lit. Pan. N. S. Oct. 1.
ed, if not obliterated. Strangers suffer he is now a Judge, for the time, may, in their turn, and perhaps speedily, be Judges over him his property, or his life, is reputation, or his houour, may be in their hands, as their's is now in his.
nothing therefore, by loss of confidence, or of character, in the neighbourhood; for the neighbourhood to them is nothing.
We are to consider the principle and
The principles of English Jurisprudence are built on a totally different basis; with them the neighbour-practice of Juries, as originating among hood is every thing; and they sup- people which boasted of but limited acpose, that a man to whom is committed quaintance with letters. Long pleadings on any occasion, the office of pronounc- were almost unknown among them: the ing a verdict, would not only bring with testimony of their own eyes, or the dehim native integrity and honesty of clarations of witnesses of unimpeachmind, but also a dread of sanctioning able character, directed their opinion. a corrupt verdict, lest thereafter his They passed their verdict on FACTS; former friends should stand aloof from and nothing less than rational conviction his company, lest those among whom swayed them. They could not read; he resides, with whom he must of they could not write; but they could necessity spend his future life, should hear, mark, understand, consider, and not only shun his intercourse, but should commune with each other, till they had regard him as "a man forbid," a man, agreed on that form in which they who, having perjured himself on such would declare the truth. an occasion, and having injured or ruined, such a family,-may be pointed at with the "slow unmoving finger" of cantion and discrimination, hinting what is not spoken, and expressing by a sign, more than a lengthened accusation in words. Nothing can support this, but the consciousness of having faithfully and uprightly discharged a duty imposed by circumstances, and by his country if conscience is proof, in is recollection, against such inuendoes, the man may yet be happy; if the memory feels that the suspicion is but too true, farewell peace of mind, together with reputation and respect.
"Thus we may see (says Judge Blackstone) the policy of our ancient constitution, as regulated and established by the great Alfred, was to bring justice home to every man's door, by constituting as many courts of judicature, as there are manors and townships in the kingdom, wherein injuries were redressed in an easy and per-expeditious manner by the suffrage of neighbours and friends. These courts, however, communicated with others of a larger jurisdiction, and those again with others of a still greater power, ascending gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as by reason of their weight and difficulty demanded a
It was among the most ridiculous versities of the French Revolutionists, to give the name of Jury to a number of men who occupied that office constantly, never changing, never receiving their reward, whether approbation, or contempt, from their fellow citizens; but, forming a corps, with all the obduracy of habituated virulence; and this they called a Jury*. Whereas, an Eng-more solemn discussion:-"the source of Hish Jury is a number of men taken justice thus flowing in large streams from from among the mass of citizens, and the king as the fountain to his superior courts of record, and being then subdireturning instantly, after duty done, vided into smaller channels, till the whole into that mass again. Each of them feels and every part of the kingdom were plenthe full conviction, that those over whom tifully watered and refreshed. These inferior courts, at least the name and form of them, still continue in our legal constitution; but as the superior courts of record have in practice obtained a concurrent ori
* See an extract in Lit. Pan. Vol. XL p. 405, in which the atrocities committed by a French Jury are noticed, and partly
The order anciently established in the arrangement of Juries was truly admirable: slight offences, were tried by a Jury of the neighbourhood, or the hundred, in a Hundred Court; more considerable, in an assembly of several hundreds, or the county; and from hence an appeal lay to the king himself.
ginal jurisdiction with them, and as there | principle, which directs that justice be is besides a power of removing plaints or brought home to every man's door, was actions thither from all the inferior juris-violated, in no trivial degree: an appeal dictions; upon these accounts (among from the northern extremity of the others) it has happened that these petty island to the House of Peers in London, tribunals have fallen into decay, and almost into oblivion; whether for the better was any thing, rather that that good old or the worse, may be matter of some spemaxim of our antient jurisprudence. culation, when we consider, on the one band, the expense and delay, and on the other, the more upright and impartial decision that follows this change of jurisdiction."
By turning to our tenth volume, page 210, the reader will recollect, that the number of Scotch appeals before the Lords, was two hundred and two; while those for England were only fifteen; and those for Ireland, thirty five. The next page informs him, that many of these appeals were lodged, merely for purposes of delay, and, of one, in particular, the solicitor reports, that after waiting seven years, he took it away, at the last moment, on paying the costs. How far this was a specimen of Scotch conciliation, we dare not pronounce; but it could not fail of striking the House of Lords, as it struck us, of demanding reformation, with urgency.
Now, the trial by Jury not having been established in Scotland, it was worth trying the experiment, whether, under the sanction of that institution, the suitors to the Courts might not obtain satisfaction at home, and not only their expences be lessened, their time saved, their animosites diminished, and their bickerings more speedily termiap-nated, but also, the table of the Upper House be relieved from a great part of the weight under which it groaned, and the odium of delayed justice be removed from the Highest Court of Administration in the kingdom.
We doubt whether these last sentences of this learned writer, are precisely those demanded by the occasion. We should rather have alluded to the complex nature of modern property, and to the infinitely varied shapes it assumes; so different from the more simple and practical questions which, alone could engage the enquiries of a Jury when agriculture was the employment generally followed, together with a few of the more necessary arts of life :-but, little trade, and very little commerce. Be that as it might, the right of appeal from court to court, is certainly now very expensive, and whoever carries a question from its first rise to the dernier resort, had need, in the present day, have his pockets well filled with guineas, or his pocket-book well lined with bank notes.
But, the disposition for carrying peals to the utmost, has been found by experience to prevail most in Scotland, a country, where the trial by Jury had not been established. It was not occasioned by the partiality, or corruption of the Judges, but by the perseverance of the litigating parties; it was not seldom confirmed by the calculation of how long time might elapse, before a suit could be determined in the last instance, the House of Lords,-nor was it uncommon for a suit when set down for immediate hearing, and on the point of coming before the House, to be closed on the terms of the last judgment; -all the delay that could be obtained, having been obtained, to the very latest
After much discussion, and consultation public and private, with the Scotch Judges, Parliament gave its sanction to the attempt. An Act was passed; and the Reports before us, are the history of what has occurred in consequence. The first Report is chiefly employed in narrating the forms adopted in establishing this novelty, the Jury Court in Scotland. We afterwards, come to the consideration of seven causes, most of which would still have been in continuation, had not the Jury closed them, by a verdict.
It must be confessed, that, when the dernier resort of Scotland, was, by the We take the first cause as an instance: Union of the two Crowns, and the two-it was a question of nuisance, for Kingdoms, removed to England, the erecting a Steam Engine, in a place