Star.
London, England, 1817-11-28 00:00:00

LAW IivTELLIGENCE.

COURT OF CHANCERY, NOVEMBER 97.
OOKOON v. 00t0"14.
The.LOßDCmatscsuon gore jildg.rient in this long
pending cause. It was an appeal ti ...at the deer.*
of the blaster of the Rills, and the point At isime was,
whether a son could be competent to examine bis
mother as to his legitimacy, or illegitimacy, and also
as to whether he was competent to examine her as to
whether a marriage wh;ch had antecedently taken
place to the product* of a certificate of what he the
son might call a second marriage'? His Lordship
went at great length, awl with consummatesahility,
into the whole of the a.icts of the care, and cxpAtia.

ted upon the VaTiOUS difficulties th.tt arose Kith re-
___

spect to it. The ewe of law, his Lordship said,
was, that if a person had been guilty of negligence,
he should not be entitlei to the benefit of evidence

taken, le hose use, as prayed for in the present tn.
stance. The question here, 'therefore, was, had the
defendant been guilty of that negligence ? After
going over the various parts of the evirLence adduced,
and adverting to the proceed;ngs that had taken
place in the Courts of Scotland, his Lordship conclu.
Jed by affirming the decree of the Masicr cl the
Rolls, declaring, that there was cot the least reason
to be dissatisfied with it.

Mr. WILLIAMS called the attention of his Lordship
to the state of the witness before her decease, as cots-
armed by the affidavit of one of her neighb.)ars.
The LORD Citat:crumt—,4 I have read the pa-
pen wall the .greatest attention, and tie decree 111
quite satisticerY." -,
At two the Court rose in consequence of his Lord.
4ip being specialiy sent for tu at:end a CAbiact
Council.
COURT OF KING'S BENCII, NOVEMBER C 7.
MR. WOOLER.—SPECIAI. JURIES.
The Arrottraav-GaNzam. appeared at the Sitting
lof the Court this morning, to *new Cause Against the
Rule obtained last week by tdr.Wooler, foi sbewing

cause why the list of persons named by his Majesty's
Coroner and Attorney, to lorm the Jury on the ilia
of the defendant, for a libel published in The Black
Dwarf, should not be cancelled on the ground of
such persons having been improperly, illegally and
partially selected by the said Coroner and Attorney,
and why the Sheriffs of the City of London should
Dot again attend tha said Coroner and Attorney, with
the book or list of. personsßualified to serve on Juries
within the said.city, for the purpose of 48 persons
being named, out of whom a Jury might be formed
for the trial of the said Information. The Learned

Attorney observed, that this rule having been ob-
tained upon the affidavits of the Defendant, his sap•
citor, and the Clerk of the latter, it had become ne.
cessary on the part of the prosecution to cause affida-
vits to be made in answer to the circumstances there-
in stated; and it wonid be for the Court to say,
whether they would'direct the affidavits on both sides
to be read by the Officer of the Court, or whether he
should himself bring under the notice of their Lord-
ships the material circumstances on both sides, offer-
ing such arguments as he went along. as should ap-
pear to bin sufficient to discharge the rule which hail
been granted.
Lord ELLEI4IIOIIOUOII, after conferring with his
Brethren, said, it might be more convenient if all the
affidavits. were read seriatim by the Officer, before
the Attorney.Getieral catered arguments upon their •
effect.—Accordingly,
Mr. Descrier., jun. assistant to his father in the
Office ot Clerk ot the Rules of the Crown Side of
the Court, proceeded to read the affidavits of. Mr.
Woofer, Mr. Pearson, and Mr. Nixon, the clerk of
the Latter,. in. support of the motion ; but as we stated
the substance and effect of these doc.:ments io nor
Report of the original motion in last SaturdaVs
STAR, it is unnecessaty now to repeat their contents,
as they were referred to in the affidavits now oiftttd
on the part of the Crown. The Officer then proceed-
ed to read the Crown affidavits.
The first was the affidavit of Edmund Henry Ls-
shington, Esq. the King's Coroner and Attorney,
and Master ot the Crown Office, which stated, that
the deponent had attended at the Crown Office' on
the pith of'June last, fur the purpose at nominating
48 persons to form the pannel, from which a Special
Jury should be chosen to try the iidormatiost :ilea by
the Attorney-General against the defendant, Thomas
Jonathan Wooler...,Dn that occasion the Secondary
of the Stiarire.Offame of the City of London appear.
rod beforedaina, and produced a book containing the
impel of.Pellans in the City of London qualified to
on SphcialAnrieualnd from vahicn such Juries had
always been selected, as deponent was informed and
believed, in addition to his own practice in his said
Odice of Coroner. That the person by whom such
book was produced, also tendered certain lists, pur-
porting to be the lists of persons resident in the diffe-
rent %sands of the City of London, qualified to serve
on Common, and Special Juries generally, in the said
City, and that the said person tendered these lists
'and book to deponent for the purpose of nominating
the Special Jury in question, as he should think ripft
and proper for that purpose. The Dcrendant and
his Atioruey being present un this occasion, some
conversatioo arose re.ipecting the propriety of naming
the Jury from the said book solely, when deponent
suggested, that in order to avoid ad abjection, it
would be better to reject the said book, and nominate
the Jury exclusively lions the said lists ; and under-
standing that there was no opposition to this course,
he proceeded to nominate the said Jury according to
his accustomed practice since lie Lad been in the
office. That soon atter deponent's appointment to
the office of Master of the Crown Office, in July,
1815, he was informed that the usual mode adopted
by his predecessors, of nominating forty eight per-
sons, as special Jurors, to serve on the trial of
issues in Middlesex and the City of London, was
to take the -names Of. Esquires or Merchants, as
'the case might be, front the book or books fur.
noshed by the Sheriffs' fur the County or City te.
spectively, ceistaiiiing the natnes tf such persons
as were qualified to serve on such Juries. That
this deponent since his appointment, had uni.
larmly adhered to the same practice of nominating
Esqtures or Merchants, according to the venue, in
which the rase was appointed for trial. That de-
pouent's mode of fixing upon the names of persons
to be nominated, was to place nis pail within each
leaf of di.: book or lists submitted to him. and Ex
upon the names of soon persotis es were qualified
ether as Ntachant4 cr Esquires, as Lis pen

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happen indifTereistly to light upon, and nominate such
persons accordingly ; and that be had told the de-
fendant and his s• licitor that such was his usual prac
rice. That the defendant and his solicitor must have
misunderstood the e:tpre-sions used by deponent rela-
tive to the manner in %rich he had been Accustomed
to noioinate Special juries, inasmuch as they must
have been fully Aware from what he then stated to
them, :slid from what actually occurred under their
own observation, that he took the names indifferently
of such persons upon which his pen-happened to light.
That this was accordingly the mode adopted by de-
ponent on that occasion a mode which had never
been objected to on any former occasion within his
knowledge. That deponent had frequent occasion to
look through many pages of the lists submitted to
him, in order to find persons qualified as merchants
to serve on such Jury, such lists being the lists of per-'
sons qualified to serve on common and special juries;
by reasno of which circumstance. he WAS obliged to
pass over many pages, not being able to find any
person answering the descriptint of merchant th, rem
named. That he had great difficulty in fixing upon
proper names; but as he cast his eye over every
page, he indiscriminately fixed upon such persons as
were described to be merchants ; and deponent rosi.
tively swore, that in naming the 43 persons which
were accordingly named in this manner, he was ac-
Wined by no rivate views of his own, but fixed uron
them ‘rithrint favour, partiality, or affect.on, and
that he nomin iced stash persons as answered the
de.scri;ition of persons qualified to serve on special jut
ptit AS his pen heipened to light upon Vim,
and until the iiiirober of 43 was completed. That it
was now nearly five months since the nomination of
the Jery in this case had taken place, and depunent
did not rectified the fact of first nominating a Mr.
Richard Toplin, a vg merchant, and afterwards
substituting in his stead the name of another person
described as a wme-meschant ; but deponent should
rather think, that if he had rejected a person of that
name, it was because the person su designated did
not fall within the class of persons from amongst
whom Special Juries were usually selected ; that de,
ponent had not attended (nor was it ever his ha '
su to do) to any statement made by either party re-
lating to the respectability pf any,indiv.duat who did
come within the class of persons usually nominated
upon S, eclat Juries; and that deponent did not know
any thing to the private character, respectability, or
habits of thinking of any of the persons nominated by
him, still less did he know any thing of the respecta-
bility, character, or habits of thinking of the said Mr.
Toplin; and that he never, directly or indirectly, re-
ceived any coniniunication from the defendant's at.
torney elrch couht induct him to pass over the name ,
of the said Mr Wchard Toplin, and to name any
other p.isi:n in his stead. That it certainly did ap.l
pear that the name of a Mr. Jahn Warn, described
us a wine-merchant, was amongst the IS persons

.nanerd, Gut that such name was fixed upon according
to the best of deponent's judgment as one fit to be
retumed'ou the slid pannel, the person being de-
scribed as a wine-merchant; but depiinent pn t ively
swore that he knew nothing of the said John Means,
either rekting to his privatt► charActer or his political
principles, lartherlhan as he was described as a mer-
ehunt in the said lists ; and that he heel merely 6Sc:•d

Upon hi. name, As he had upon all the others, be-
close his pen read lighted up•in that name with the
description o: arerchnat attached to it. That.deponeut
*did not tt toll. ct rejecting the irime of a Mr. Giiman,
Lor did he know any thing at the private connexii ns
Cr principles of that ind:v.du.il, and it he had Irjec.
Led Lira. Lis t.i.y motive could have been bett4USt
tLe said Mr. Gilman was designated in the list as a
and consequently not coming within the de-
SCriptioll tit a pe:son qualified sn'serve on Special Ju-
ries as a mrichant. Deponent further positively stated.
that he knew nothing, directly or indirectly, of a Mr.
Fellowts, who was stated in the affidavits of the de-

fendant to be the person who was substituted for the
said Mr. Gilman; that his only motive for nom,.

Dating the said Mi.Fellowes was, because he answer-
ed..the eescripon of seavhae, in the said lists, and
that he was utterly ignorant of the private connexions
or principles of the said Mr. Fellowes. That to the
best of deponetit's knowledge and belief he did nut
know anyone of the individuals named on the said pan.•
se!. nor did he receive any communication, directly
or indirectly, from any person, relating to, or of and
concerning any of the persons therein wientionett;
and. lastly, deponent saith. that he had nominated :ill
the said persons indifferently and impartially, haring
fixed upon them because he firmly believed them to
be the class of persons from wham Special Juti.s are
tsually chosen.
Next followed the Affidavits of Mr. Henry Charles
_ _

Litchfield, one of the joint Solicitors of the 'Treasury;
of Henry De.ltsy, Esq. Clerk 'of the Rules on the
Crown side eit the Court.; of Samuel Collintidge,
EA. Secondary of the Sheriffs of the City ot Len-
doit ; of Henry Marlowe, Esq. Secondary in the
Crown Office; and of Thomas Le mane; Esq. Mas-
ter of the Pleas site of the Court ; all tending to con-
Frei the state rimots in the Coroners's Affidavit, re-
lating to the legitimacy of his proceedings—the prac-
tice which had obt.ined in his Office as to the mode
or striking Special Juries, and as to the impartiality
of his COtidiiCt no the present occasion.
The At ,rotten C;trseam. then addryssed thc Court,
ccwtending that aster the affidavits which they had
Lend Nadi it was impossible to doubt 'that the three-
fold imputation of impropriety, illegality, and par
tiality, alleged against the Master of the Crown
Uffiee, was completely answered, and consequently
the role most be discharged. As a preliminary
position, be insided, that whatever the cnndoct rf
t:)e Mawr might have been, it was quite distinct and
separate from the question as tel the legality of the
trade of returning the lists of persons qualified to
serve • as special Jurors, which were submitted to
Tint by the Sheriff, who alone Must be accountable
fat any Supposed irregolasity in that which ex-
cinsively belonged to his department. Inasmuch
as the Master could only make his selections horn
the returns made to him by the Sher;ff, he could not
be accountable for the legality or illegali:y of the
conduct of the latter, and therefore if soy thing could
be objected to that officer, the motion of the defen-
dant ought to have been framed, so as to bring his
'conduct under the review of the Court. The Court
therefore had only to consider whether the Master in
bis peculiar province bad acted improperly, illegally,
and,partially. For ti'e prrrose of chewing that the

Mastertad acted legally on the presert ore ran he!
referred to the lSth and 17th Sections of the 3d Geo.'
11. c. 25, which was passed. for the porpose of plac-
ing the system of Special. Julies upon the same foot-1
ing as it had theretofore been with respect to trials'
At bar ; anti then, for the purpose of 'hewing that it
w I the peculiar province of the Master to nominate
the Jurors, he referred to second Lilly's-Practical
Registry, 155, folio edition, title—Jury and Jurors ;
where it Was laid down as a rule of this Omit, of
Trinity .Term, 22. Charles 11. upon a motion being
made for a Special Jury to try a case at bar, " that
the Secondary shall name forty eight freeholders,'
and that each party shall strike out twelve," &c.—
This appeared also to be the recognized rractice to
Trinity Term, S William 111. when it was. laid down
as a general rule, that the Secondary is to name the
Jurors from the lists submitted to him by the'She-
rtffs. On the authority of these precedents, therefore,
he insisted that the Coroner's duty was to nominate
the Jurors fit to appear upon the panne!, and that no
other person had a right to interfere with him in the
discharge of tin:duty.
Lr.rd Es man .nouou—The rule which is to govern
his conduct is express. It is.. that he shall nominate
the Jurors."

The ATTORNEY GENERAL-I submit also, that it
is nut only the language tit the rule, but it has been
the invariable practice of the Crown Office from the
earl e.l times.

Lord ELLENnonouctr—The rule says, he shall nn-
minlte 4b free and lawful men, and that the Sheiitt
shall attend hicn for that purpose, nut the officer is
not answerable for the ride. if the rule is impro-
perly drawn up, it is an imputation upon the Court,
and not 'Ton the officer.
The Arriutraty Ger.:vint conceiving that it would
be a waste of time to trouble their Lordships any
further upon this point, proceeded to the other parts
of the case, and contended that the ailidawts adduced
on the part of the prosecution, completely negatived
the imputations of impropriety and partiality in the
conduct of the officer, finally insisting that this rule
must be discharged.
Mr. Torvoin said a few words on the same side.

Lord ELLCISn3ItOL:GII••••Whd supports this rule ?
r Mr. WOOLEn then rose and addresser! the Court.
He said he d:d not appear in support of this Rule,
with any intention of casting personal reflections
upon the character t I the offiar of the Court ; all i
tie' he was desirous of doing was, to lay before the
Count the circumstances of the case. and leave them
to judge whether the fair presumption did not arise
that the power vested in him had been partially exer-
cised: %Vhatever might be said on the one side or
the other, either far or against the nficer, '
Could nut
remove the necessaryginterence which must be drawn,
from facts. It was manifest from doe Manner in
which the Attorney General had -labourid in abew
the legality of the Officer's condtict, that at heist the
privilege claimed of nominating Special Jurythen
at his tree will and pleasiii e, was at best a doubtful
proposition. The Learned Attorney general bad
laid considerable stress upon the right of the Master
to nominate and select melees:ants, out he (Mr. W.)
knew of no custom, however ancient, which cook*
h tee the-effect of a written and express law—and con•
sequently that could not be assumed as law, upon
which the law was silent. So tar as the definition of
merchant went, the law was perfectly silent—and,
therefore, the hypothesis built upor the defined clout.
racier of a Special Juryman was without !Omaha*, ,
and all the conclusions drawn from thence must tail
to the ground. He should cut col.•end against the
right art the Master to name the Jurors to form the
panuel, nor should he quesflon his impartiality in tke
exercise of that poser, unless circumwaoces would
clearly lead to a 'opposition to the contrary. But,
the real and importaut question in this case was, whe-
ther the right of nominating Juries should be taken
out ut the haads of ,he Sheriff (the people's tifi..:er),
and vested in those of a s:tvant of the Crown, wto
oloold be at liberty to cod/ and Oirei such *links a.
might suit the purposes of his 'superiors, and thereby
enable him to become the absolute master of the
I:he:ties and the ;wane; of a free people, under
colour of a legal right of nominat on. He pre-
owned to think that the definition of Frercluint must
not be taken as a mere abstract appellation to be,
given only to such persons as should import anti
export the commodities in which they dealt, bOt must
have reference to the condition—the substance, and
the intelligence of persons who were free Citizens of
London, and whose claims to serve as Jurors must
nave reference to the customs and privileges of the
community in which they lived. By the tastes and
regulatithis of the Corporation of the City of London
in the reigns of He.:ty VII. and lienryVlll. entails
Classes of peroans wile defined as eligible to setve on
Jures, mut unless the lists from which the Jurors in
this c..se wife made out were conformable to those
rules and regulations, he apprehended that any other
curse adopted, by custom or usage, could not be
sancnoned by the Court. Unless the persons described
as Merchants were free Citizens and resident inhabid
tants of London, they could not be entitled to Sit as
Jurors in that jurisdiction ; and if the true definition
of a Merchant were advested to,. it would be found
that persons trading in London were all Mcreliants'
the French word Marchand bring the origin of that I
appellation. This was common sense, and no legal
ingenuity could get over an appeal to tie plain un-
derstanding of mankind. It might, perhaps. be truly
said, that by the custom of the City at London, a,
Merchant Adventurer need not be a Freetown of the
City ; but it these were to hold good in all cases,
these was nothing t r prevent a fertiliser from claim-
ing the privilege of serving as a special Juryman
in London. There were ciises, however, deviled'
upon this subject. which the Court siould find iii
Brownlow's Reports, and in Salkeld,
It was quite ridiculous td suppose that the real cha-
racter of a merchant was attended Co in the selections
made of persons to setae on these Juries; for, in the
first place, it
.was obvious that the title of Esquire
was merely fictitious. which every man might assume;
and it was notorious that many men assumed the
title Of merchants, who had no pretensions to that
character.' In the city of London, brokers were
known to act as Special Jurymen in the character of
. merchants, although, by the bond given by brokers
i to the city, they were sworn not to act as merchants.
Other persons acted 111 this capacity, who were only
traders in Harlequins and Columbiltes. For in-'
, stance, it was well known, that a Centlemin named
11.---t sat as .a bletchatit' Juryman at Otaildkall,

leiLhottt nny other preters:on than being a pull
owner Qf Sadler's Wells Theatre ;.and it was also
well known that Mr. Samuel Dixon, a broker, had
sat for years as Merchant Juryman in the same place.
But without dwelling upon these minute particulars,
' he must insist as a constitutional 4nd legal principle,
that a servant of the Crown ought not to be the per.
'on who should chose the tribunal which was to de-
cide urn the lines and liberties of the people. If
the Coroner bad the right to say—" I will do as I like
in these matters, because it is my wi:l," there wit an
end .to the boasted privileges of Englishmen. What
stcurity'had.the public for the faithful discharge of
so sacred and important a duty f If the source of
justice was impure what woul,l become of its stream
Was the shield of English justice to be broken by a
Rule of Court—a Rule., too, 'made in the reign of
Charles:l. (a reign not ,he most auspi..l us to liberty)
and the defenceless people left to the atbitrary as-
saults of an °Miser of the Court 1 These were con
siderations well des.-rving the •serieus attention of
their Lordships. The Attorney \General had said,
that the Master of the Crown-office knew nothing of
the rag-merchant who had been rejected AS a man too
contemptible for the office of a Juryman.
Lord Et.t.ENßuteriar-..fke said no such thing : he
said malting about eontessitia !
Mr. ‘Vooler resumed. and admitted that that word
had not been usA ; but he ridiculed the idea, that a
roan's dealitv, iu whatevar al Lae it might be. should
operate as a disparagement of his understanding, and
a disqualification of his rathatal powers. He had no.
thing Mori: to say, than to deprecate the power thus
claimed by a servant of the Crown ; for he could only
consider this as a case where th'r Minister WAS if )111g
his cati.o 1-4 Lis own agen.s. unless the snurcas of
justice were kept pure, the boi.ds of society were
; and thi whir,: it Lee:an.e Loidbhips to
their country from the impending peril with
%%11.i-it it +a es the e 4t.:ned.
Toe Judges r!te.n proceeded to give their jiidgmen•
:trial/as, xhich they did at COlTSidtT4l:re lerigth—each
declaring that there sets not the slightest toundat
for the :notion, and finally tesoivitig tt.at the Rule
must be discharged.