The British Press; or, Morning Literary Advertiser.
London, England, 1824-01-27 00:00:00

WEST.VI-VSTER REVIEW, No. 1.

Notwithstanding the Reviews, some of them of high
reputation, which are already before the public,
we
are glad to find a new one enter the lists, and put forth,
with a consciousness of desert, its claim to public appm.
bation. In this department of literature there is great
space not yet pre-occupied, and which may be made, in
every way, prolific in the hands of those who are corn.
potent to cultivate it to advantage. A new work of this
kind retiuires net only to be prosecuted with all the aid
of talent, and all the ardour of research, but to be pursued in
the purest principles of impartiality and the soundest spirit
of independence.

The • Irestniinster Review will, we trust, cot only •et
starting, but throughout its progress, display both these
requisites. A Reviewer, to discharge his task as he aught,
should be of no party; he should wear an amulet against
all systems, except that system which instructs him to look
I to the advancement of moral truth, and the welfare of po.
litical society. These should be the sole object of ail his
I labours, and the sole end of all his exertions. In the new
orderiof things, that appears to be arising, there is enough
to awaken the attention of every friend to mankind, and
to call for the exercise of his most steady and collected
judgment. The Press, in every deparun t of it, has
great power, and incurs great responsibility ; subjects are
perpetually coming before it of high moment, and of great
deliberation. The conductors of a Review, as they profess
to canvass every subject in the spirit of philosophical invee-
, tigation, and to measure every thing by its true rule, make
a demand upon the public confidence, which it behovre
them not to disappoint ; from those who redeem the
pledge thus virtually given, the greatest good may be ex-
pected. In the work before us, we have no reason to pre•! diet that our reliance will be misplaced.
The moment this first number of the Westminster Re-
view reached us, we turned to the article ou Special Juries,
not merely because it is at this moment a iubject of pe.
culiar interest, but because it would enable us to make s
tolerably correct estimate of the principles, as well as to
' take a lair measure of the integrity, of its conductors. Not
that our judgment should steer its course exclusively by
this article, but that we might lay it before our readen as a
sound sample of what they may expect. The manner in
which the subject is treated bears the stamp of a mind
which seeks truth for the sake of truth. We shall examine
the articles carefully throughout. In the meantime we
give the following extract, as justifying for the present our
strong prejudice in its favour.
From the importance of the subject, we found it impos-
sible to shorten the above extract. I t involves consequences
connected with all that is valuable in the constitution—

with all that is fundamental in the principles of freedom,
and with all that is practical in their application. The
Trial by Jury is the surety of all our privileges, and the
safeguard of all our rights : the security of 11 that is
dear to us in the compact of our liberties rests upon it.
Our forefathers have been accustomed to reverence it with
a homage approaching to idolatry. All that is said and
stated above must therefore affect us nearly. Our space
at present presses upon us, but we shall take the earliest
opportunity of recurring both to this subject and to the
Westminster Review.
" Without going at large into the excellence or defects of the
institution of trial by jury. but assuming that so long as jades
are appointed and promoted by the government, such an ins&
tutioo is necessary as • check to the natural bias of their interests
and inclination, and that the requisites just enumerated we es.
menial to the formation of such a check, let us now see what
is the existing practice in the appointment and remuneration of
juries.
With a few exceptions, provided by statute, all persons who
have freehold or embold property to the amount of 101. a-year, or
leaseholds determinable en lives to the amount of 201. a-year, ate
qualified to serve as jurors in England .°
In London, householders who have property to the amount of
1001. are qualified ; and in other cities, boroughs, and towns,
which have 'game jurisdictions, householders who hare property
to the amount of 401.1-
Lists of the persons qualified are obtaineitaa follows. The
Midsummer courts of quarter sessions issue warrants to the high
cemstables of each hundred, ward, Le. requiring such constables,
to Moue precepts to the several tithing men, petty conuabl es,
he. within their respective constablewicks, to prepare a list of
persons within their respe:tive predocts qualified to save se ju-
rors.:
The tithingmen having prepared such lists, with the pia
of abode and addition of every person named therein, and having
fixed them on the door of the church daring two Bugdg drily
them on oath at a petty swims the week alter M. • the
lists are then delivered to the high constables, who remelt them to
the October quarter session'; the clerks of die peace Ore utter
these lists on record, sod deliver duplicates of them to the sheriff
of the county.§
Qualified persons omitted, and unqualified paeans Inserted
in the lists, may appeal to the quarter sessions; sod unqualified
persons may be challenged for want of qualification. 11 •
Out of these lists the sheriff returns not less than 48, nee
more than 72 names, for the service of each wise ; no person is to
be returned who, in Middlesex, has served within two Onus or va-
cations next preceding,.--in other counties, within twojean, ex.
cept in Yorkshire, where the interval between two returns of the
same person must be four years ; in Rutland only one : the sheriff
is bound to keep a register of such jurors as have served, and, up-
on application, to give certificates of service. ¶
The names returned by the sheriff to the assize* are directed to
be written on distinct pieces of parchment or paper, of equal size,
and delivered to the judge's marshal ; the marshal is directed to
roll them up, each in the same manner, in • box provided for the
purpose ; and when any cause comes on to be tried, some indiffer-
tut person is to draw out 12 of the parchments or papers ; and if
any juror whose name is drawn does not appear or is challenged,
the drawing is to be continued until twelve are obtained. at
Jurors thus appointed are called common jurors; and the remu.
aeration for their services is, in London, a shilling for each cause
they try ; in the country, eight-pence.
There are two modes by which the check proposed In the ben-
union of jury-trial may be done sway : first, by a select* of per-
sons for jurors whose opinions and interests are the same 'as those
jof the udge; recondly, by making it the interest of the juror,
whatever his own opinions may be, to ad upon the declared or sup.
posed opinion of the judge. /Cow it is scarcely possible that either
of these modes should be applied where a jury is cor.stituted in the
way we have just described. Withrespect to the first mode, the
office of sheriff continuing only for • year, it is by no means cm
airs that the sheriff for the time being would feel disposed to peek
the gross list of 48 which he returns to the assizes ; but should
sheriff be occasionally so disposed, the necessity he is under of re-
turning jurors by rotation, and not oftener than once in two years,
must render it a matter of uncertainty whether he could find for
his gross list 48 men, or a majority of that number, suited to his
PuaTe. respect to the second mode, the emolument attached*
service being so small, and the service being so transient, it is im-
possible a man should have such an interest in the situation of
juror as should induce him, from the fear of losing it, to give an
unconscientious verdict.

Juries thus constituted, being therefore but an intractable ma-
chine, it was contrived to attach to the office of juror an emolu-
ment so considerable and so permanent as to insure the juror's de.
votion to any party whose displeasure might deprive bins of a eons-
petent livelihood.
The machine thus rendered tractable and called a
eltial jury,
appears to be of recent origin. So late as in the year l an men-
non is made of special juries in the books of practice. t in the
23d of Charles If. the Court of King's Bench eni. d (that '.s. opus.
pingly legislated) " That upon affidavit that the canoe to be via
at the bar is of very grcar onasequenee, the Court will, if they
sew cause, make a rule for the Officer of the Court to Name Mires.
holders.'

At that time, then, special juries could only be had in trial at
bar, and on consent of both parties. The rule 8 IV. 3., whereby
it was ordered, that „upon reference by the court to their officer to
return any jury, or to return 48 statcrame persons to try any issue at
bar, if the attorney on one side shall make default to attend at
the time appointel, the officer shall name the jury," must apply
to cases where the attorney made default after consent t fee in
Baster term 10 Geo. I. it was found upon search that no special
jury had been granted for 31) years then last past, without consent.
(11 likes v. Eames, Antic. 62.)
The usurpation which at this time was confined to trials at
bar, must be extended to other cases in the reigns of Queen Anne
and George L, and the emolument attached to the situation of
special juror must have become considerable and permanent ; tor
in the third year of George 11. the statute was passed which prohi-
bits juimaien from serving oftener than mice in two yeentO, stating,
as the cause of its er.actment, " the evil practice used in Me tor.
roping, firrtor ;" and in the 24th year of George 11. the statute
which (after reciting :hat " complaints are frequently made et the
great and extravagant fees paid to jurymen") bonus the fee of a
special juryman to a guinea a cause.
Here then, notwithstanding two statutory recognitions of the.
mischief of attaching permanent profit to the situation of juror,
the Legislature confirms the usurpation of the Court of King's
Bench ? Why ? unless it foresaw that the enactment with respect
to the rotation of jurors would be eluded::, and that jurors, per-
•l3 Ed. I. e. 3K 4&5 W. & Al. c. 25. s. IS 3 0.4. c. 35.
, 5. 111.

t .....
3 0.2. e. 26. 5.19. 23 11. 8. e. 13. 3G.2. e. 25. s. 20.
+3 & 5 Ann. e. 18. s. 5. 3G. 2. C. 23.
17 and 8W.3. e. 32, a. 4. 30.2. e. 25, 1. 2.
3 and 4 W. and M. c. 25, s. 15.
3 G. 2. co. 25, s. 8. lb. a. 4. 4G. 2. c. taZ G. 2. c. 7.
$. 2. 30. 2,c. 211, s. 3..
.._

•• 3 0,3: c.. 8. 4. 11. and 12.
t-t• By 40.2. c. 7. the rotation in Middlesex is ordered*, be not
more frequent than once within two terms or vacations.
In 1793, the Court of King's Bench held that the Act ems
not apply t) rpstelal juries, where the Crown le a party. R. 1.
Perry, bT. R. 44. And also, In 1731, Liil. Y. Rest.
Franklin, ib.

Ir---

„nceitly paid, would be of all instruments the most efficient for
faioiring the purposes of despotism.
At all events such has actually been the ease.
So recently as the year 11107 Sir Richard Phillips, then one of the
Sheriffs of London, addressed a letter • to Sir A. AP Donald,
the Lotd Chief Baron of the Court of Exchequer. in which he
complained that Special Juries were become virtually permanent
in consequence of the same persons being repeatedly nominated by
the officer of the Court ; that this wan contrary to the acknowledged
principle of the constitution of juries, contrary to the express
provision of the Act of Parliament 4 O. 2. e. 7. a J. ; and that a
patial selection of jurors was the habitual result of interference on
the part of the Solicuor for the Crown. The Lord Chief Baron, in
an answer which he addressed to Sir Richard, does not deny any
of the allegations ; he admits that special juries have become per-
manent ; he admits that this is contrary to the Act of Parliament ;
bat, the state of things complained of he justifies, on the ground
that inconvenience would arise from summoning jurors who lived at
• distance; that the instructing jury after jury would expose par.
ties to the hazard of points being dl understood ; and that in 24
year; experience, he, the Chief Baron, had never seen any !neon-
anience &metro:li the manner of striking special juries, and had
known but few verdicts from which he should have dissented.
Ie 11;17, a Committee. appointed by the Common l'ouncil of
the city, of London, to inquire into this matter, reported, ” That
special juries were nominated from a book containing s list of
names inserted at the discretion or caprice of the Seconday, who
had placed such names on the book as he pleased, and struck off
such as he rased ; that he professed to be regulated in this
practice by the recommendation of other special jurymen, of mine
ettomeys, and of the ;Sheriff, which he considered humid( at li-
berty to adopt or reject, as he thought proper ; that although in
the city of London there are an immense number of persons who
are eligible to serve on special juries, the book contained only 48.5
names, from which all the juries are selected ; that out of thaw ;
es eam of pasons, there are no less than 226 who are not 1
householders within the city of London, and are, of course, in-'
eligible to serve ; that out of 269 householders in the list. the 1
number of those who art merchants, in the modern acceptation of
the term, is fill ; those usually styled tradesmen, and not mer-
chants, 171 ; that the alleged practice of a special jury being com-
posed exclusively of merchants (i. e. in London), is as unfounded
In fact, a* it is utterly unsupported by any principle ofthat
du ring tht Sittings after the three Terms immediately preceding
the report. there were jurors summoned for the trial of 114 causes ;
and that out of the book which contained the 485 names, 274 only
were summoned ; out of whom one was summoned 55 times, one
43, one 50, one 46, one 45, one 43, two 42, two 38 times, fte. ; that
the bok being left in the hands of the Officers of the Court for
weeks together, they may have been enabled to make a eidaftoo
destructive of the parity teal by Jury ; and that application
has been made to the Secondary, by the Solicitor to the Treasury,
to know the political sentiments of jury appointed to try a Caule
between the 'Town and an iodividual for a RW..
With respect to the city of 'London, this report occasioned
some reform, as to the number of names and the equality of the
persons from among whom the special jury is nominated (a reform,
of little avail, while the nomination remains in the hands in which
it is at present vested) t but in Westminster and other places the
matter remains as it was. In the case of the King v. ardle, for
an alleged libel in the Alone/tester Observer, it was affirmed, and
no denied, that the special jury list for the extensive county of
Lancaster (the population of which amounts to 1,074,000), am.
timed fewer than IWO names; and in the case against Major Cart.
weight and others, that in the canny of Warwick (the popula-
tion of which is 280,000) the special jury list had no more than
14 names in it, besides those of the grand jury who found
thersille. From these 44 were to be taken, 48 for this and all the
special jary causes to be tried in the county. Vet the 31 eta of
the Crows Office called this • good and proper list ; and on motion
in Court for a rule to check this practice, the rule was refused, and
the Court declared that the list was a good and proper list.
Here, then, is ample proof, and an admission by one of the
Judges, that the situation of special juror has become virtually
permanent; and being so, it cannot be other than a situation of
considerable emolument, while the fee for attendance is • guinea
is each cause; a degree of emolument of vital importance to a
great proportion of those who are accustomed to serge ; for how.
ever it may be pretended. as it was by Lord Ellenborough (Rex v.
Wooler, 1 B. and A. 103. 285). that the object of the rule for a
special jury is to attain persons who, „from their better education
and superior intelligence; are calculated to decide upon questions
of diffindty," and as it is pretended by the effacer of the Cairn, that
merchants only are selected in London, and "esquires" in the
country; the contrary appears to be the case, aceording to the
Report just quoted ; and.it is notorious that the service is habitually
pafomied by • set of needy persons, not having so much as the
requisite statutory quell hcations, but,from their constant attendance,
stigmatised be the name of ginisca-inen. The reporter from the
Committee told the Common -11kuneil, that "of the favoured few
to whom the Master of the Crown-Office had thought proper to
grant patents of rank and intellect, the most part had no property
whatever in London ; that many of those who were summoned
were known to have been worfortreate is trade: it was notorious
that many derived a certain profit from serving upoh special
juries; if any of them were to decide against the Crown, it
was easy to judge what would be the consequence."
A person who has repeatedly served on common juries in West.
mime: makes the following statement as a sample, and a sample
only
I hew a special juryman who was a eowitivot: soldier, who-
during • parliamentary investigation, was discharged flora his re,
giment at the instance dm army agent, and then provided for in r
certain way. This man, after a time, mild to was endeavouring
to cant as muck messy ea weld* seabee him so a has.
hold as he had the premiss of being mark a spgnal juryman. He
purchased the freehold, became a special Armen, and I saw him
one day realm nine guineas in the course of about three hours.
" Another had been a coachman to a law Lord; his master
laid out his savings for him in the purchase of a small freehold, and'
he was made a regular guinea-man.
" Another was • very poor man, with a large family, whose!
wife kept a psis shop.
I have
_repeatedly seen and sat by the side of a special juror
wbo was so deaf as not always to be able to hear his name called,
and I have seen one of his fellows give biro a push with his elbow,
to induce him to answer to his name."

So much for the better education sod superior intelligence of
this inestimable body, as Lord Ellenborough termed it.
The situation of special juror being, as we have shown, attended
with considerable emolument, and perhaps the means of livelihood
to a large proportion of those who sere—the attainment of such
a situation having been rendered an object of desire, the less of it
an object of apprehension, in whose hands is patronage so valuable
lodged? who has the appointment, who the disappointment of so
many aspirins? who, in short, composes the body which is sup.
pond to be a check upon the Judge ? An officer of the Court in
which the Judge presides! an officer, appointed bY the Chief Judge
of that ('curt, orby the Judge's predecessor !
In the Court of Kinp's Bench, this officer Is commonly called the
Muter; and, according to recent decisions of that Court (IL v.
NVooler, t B. and A. 193., and R. v. Edmonds, 4 B. and A. 484),
has a right to select (in what does arkaing differ from packing 0)
weh pergolas as he way think fit. In R. v. Ennead'', It is laid
down, that it would be contrary to all precedent and example, If the
officer should take the names by some mode of chance. It re-
quired, however, the courage of Lord Ellenborough to avow and
put in force this exercise of arbitrary power.
In the year 1771, upon the trial of Horne Tooke, a remon-
strance being made by that gentleman against a proposal of tho
Solicitor to the Treasury, that the master should select two names
cut of each page of the Sheriff's book, the master consented to
take the first 48 names of special jurors that should present
thermelres ; whereupon, whenever a name presented itself Pin any
was suspected by the prosecutor, the Sheriff's Officer affirmed that
the man was dead, or had retired, or was a bankrupt : one man,
who was asserted to have been dead seven months, Mr. Tooke
knew to be alive, he having that day been appointed to an office in
the city. This man's name being suffered by the master to form
one of the list of 48, was instantly struck out by the Solicitor to
the Treasury, among the 12 he was entitled to reduce.
Subsequently to this, and up to a recent period, that is, within
the time during which the present muter has enjoyed the office, '
something like an appearance of impartiality has been observed on
these occasions, the 48 names having been obtained by the master
striking his pen random into the leaves of the sheriff's book, and
taking the esquire or merchant whose name happened to be nearest
to be nearest to the point of the pen. Under the authority and ex-
pries decision of the Court of King's Bench, this course, however,
has now been abandoned, and the master, without arrignimq any
SIMS, *elects or reject; arhatever names he may think proper.
The following is a statement, by one who is understood to have
been sa eye-wieners of what passed upon the last contested norm.
nation of Jurors,--the jurors appointed to try Mr. John Hunt, for
publication of The Liberal.

" The masts,
WeinleieaU4U a fable, round which the parties
niche cause Pend, opens the freeholders' book. He turns over the
Mel, reads glad any name he may 6x upon, which is taken down
of thepertige attending; be usually takes one or two names in a
but &sometimes over many pages without taking any.
‘114411 by the defendant why he thus selects, and upon what
rocliPie he makes the nomination; and he explains, that In the
'"'t place be only takes such as are designated esquires in the
,
Ind of these names the required number quite at random,
"soling any one his eye may light upon, risks: he knows some
~._",a)u thy that oue it unfit, and then he passes him over, reserving
objection, however, entirely in his own breast.
The defendant objects to this mode, as opening a door to peril.
111. Without meaning to convey the slightest imputation on Mr.
'"i3oton (the present master) he protests against the principle
r'Practice which puts it in the power of a master most completely
&jury. The defendant furthersuggests that there are
sther modes of striking • jury which would be liable to no
tr"m", of wrong: handoe, for instance, that a book shall
in''
at random that the first, second, or third esquire,
,:iight be beforehand agreed on) in each page so casually
7r,. 4111 be nominated until the whole 48 be obtained. To
however, the master demurs : he declares his strict im-
,k
11. surd men professes an earnest desire to adopt that course
&11l prevent any possibility of suspicion but he refuses to
ride en the taking of the names, and adheres to his own
what he alleges to be an impartial sekctiox. The general
beingthrobatio of this plan must and does excite with
the t
Mat urged by the defendant, Mr. Lushington admits
rare(
%Parkin ',Wier were crks. orrupt, he would have the power, ruder this
:ij'
that kuts"efttion ensues, in which the master says he wishes
th: names were collected in a heap. and he had to
4H a: hitsarti, in the manner of a ballot. He admits that
=thinel in the book are eligible, and that he might, if
take freeholders who are not esquires; but then the!
;‘,e uiPson the Office ef.
Se Holt
"on the Law of Llbel." IR=
ndieation of the conduct and principles of the
--"°`°( the Nrirark Herald.

practice of the cilia is to take only esquires, and he refuses to
deviate from it. He asserts that the mode of nomination k left en-
tirely to his discretion, and also that he has on former occasions
nominated in another way ; as for instance, he has thrust a pen
into the leaves of a book, opened it at the page he hit on, and
taken the esquire nearest to the point t the pen. Nothing can be
fairer, says the defendant ; will you do so in the present instance ?
No, replies 31r. Lushington I left off that mode on account of
the trouble.. Would he then fix on any other plan which should
preclude the chance of impartiality? No; he objects (and this
after all was the chief point) to any plan which would
make it peremptorily on him take persons whom he might
think improper men to serve on a jury. He insists that
his mode (being, as he protests, quite impar_ daily acted
upon) is the best, because it leaves hint the power to piss over
certain persons; for instance, he says, if I see a man holding
a place under government, or notoriously connected with go-
vernment, I pass him over; and on the other hand, if I see a
man, whose opinions are notoriously introirer, I pass Aim over."
Now, the possibility of getting upon the jury one or two persons
whose opinions might, in the estimation of the master be improper,
that is, be smog partisans on either side, is a thing unavoidable
under any impartial plan, which can he no other than some ap-
plication of a system of chance ; but the law, ash stands, has con-
templated and provided for this inconvenience, by allowing each
party to strike out 12 of the 411 first appointed ; so that the inter.
terence of the master to prevent such inconvenience is as unnecessary
AS it isopen to abuse. Without alleging the exigence of any each
necessity, however, the Court of King's Bench determines that the
masher shall; retain this power of gicciiag, unless corrupt motives
or corrupt conduct can be imputed to and proved on him. 'When
comulaint on this subject is made to the Legislature, up rises bane
friends of the master, and with real or pretended wrath inserts
that no one has ever dared to :art imputations on the purity of the
master's motives.

Now all this is completely, probably, purposely, beside the ques-
tion. Pio one has imputed corrupt motives or corrupt conduct to
the master ; first, because it would be next to impossible to
adduce judicial proof of such motives or suchconduct; and
secondly, because such proof, and the consequent punish-
ment or removal of the master, would be utterly useless; for,
the thing imputed to the master and not denied, the thing tom-
plained of and not redressed, is, not that the master does actually pack
&jury, but that he has the power of doing so, and of doing so with-
out the possibility of detection. To this power the parties who may
be affected by it decidedly object, and for the conferring thistii.oet
upon him, nothing that will bear the name of a reason has ever'
been adduced ; while it has been repeatedly *hewn, that for any
rod purpose such power is whiat;inatt‘eim
" Nothing can equal fib. ty with whlchlthis
power may be exercised, or rather profited by without being
exercised, but the abject and trembling dependence of the per
juror who is the abject of selection ;—he must consider
as the arbiter of his fate, as the person who may determine
whether or no he shall continue in the enjoyment of an easy and
ample subsistence, not only the master by whom he is at first
selected, but all those powerful persons behind the curtain whom
he may suspect to take an interest in the verdict : to the will of
every one of these, as far as it can be guessed at, and is recon-
enable with that of the rest, will it be necessary for him to shape
I his verdict. Although in his conception that verdict may he a
matter of indifference to five out of six of these high-seated spec-
tres, it it be matter of anxiety to the remaining sixth, the inde-
pendence of the guinea-man is as effectually destroyed by the up.
prehension of this single one, as it could have been by all six.
With none of the persons supposed to be offended can he possibly
come to any explanation ; with no certainty can he so much as
collect their names : his punishment (omission to insert his name
among those of the permanent jurors) he cannot call a punish-
ment, cannot complain of it as a hardship, or even know the pre-
cise time at which it is inflicted. In the exercise of his power of
emotion or omission the master observes a discreet silence ; he
names no name, he assigns no reason his acts, if omission to se-
lect can be called as act, are as incapable of proof as his motives;
and whatever those acts may be, he is, to all intents, safe in irre-
sponsibility.
" With those who assert that the operation of an interest such
as we have described, will produce no bias on the juror's mind,
will have no influence in producing his verdict so long as he is
bound by the solemn obligation of an oath.—we can have no rea-
soning in common ; we start from different premises, we enter-
tain opposite views touching human nature, and can never anise
at tbe same conclusions. Without entering into any disquisition
on the utility or effect of judicial oaths, we shall content ourselves'
with observing, that they who maintain that such oaths are a suffi-
cient protection against the operation of sinister interest on the
minds of a jury tribunal, might with equal justice carry the posi-
tion fUrther, and altogether dispense with the incumbrance of a
jury
.by holding the judge's oath to be a sufficient guarantee for
his deciding in all cases with impartiality and integrity.