fights like a windmill, I allow; and in the course of his rambling, unhinged, dislocated speech, threw his arms about in a manner particularly inconvenient to an antagonist who wanted to get close in, and pummel his argument with the knuckles of bar practice. But to my thinking, he gave, nevertheless, some confounded hard knocks, right and left, and a great many straight-forward facers, not only to yourself, Sir James, but to certain friends on your side of the house. And you could not rally, Sir James. No, not a bit of it. You fought off from your man. It was a grand, constitutional set-to, on the part of Sir Charles, which you tried to convert into hugging and fibbing. In short, you were in the House of Commons, and not in the King's Bench, where you had your breeding, and where the wig and gown give currency and authority to any thing, no matter how vapid, how "stale, flat, and unprofitable." You were not surrounded by junior barristers, whose shrinking countenances reflect the full-blown confidence of your own; there were no sleek attorneys sitting below you, with upturned eyes, in placid astonishment at your eloquence, nor a dozen plodding shopkeepers before you, wondering how you can be at once so long, so learned, and so loud, in your address to them. You were not on your own dunghill, and your crow was a craven one. But let all this pass, and let pass the pompous inanity of your self-assumed, one-andindivisible supremacy, as the sole arbiter of the fate of writers. I shall confine myself to your repeated assertion, that you considered the licentiousness of the public press so great, that in the discharge of your official duty you were bound to bring the offenders to punishment; to make an example of the principal delinquents. Could you have borrowed an angel's tongue, Sir James -could all the rhetoric of all the orators of Greece, and Rome, and England, have flowed from your lips -could all the wit, and wisdom, and argument, that ever swayed the minds of men, have concentrated in your own-you must have failed in proving what you asserted, so long as the evidence remained of the partial and exclusive character of your pro

ceedings; so long as one man, one party, only, was placed upon the floor of the court by your means to receive judgment, while it was, and is, notorious, there are others whom you have not, and one whom you will not, place in the same situation. What should we say to a general who began a campaign with announcing that he intended to overrun a certain territory, laying it waste with fire and sword, and who, when he had reduced a single frontier town to ashes, laid down his arms without firing another gun? Why, that his ostensible, were not his real, intentions, and that the former were put forth only as a subterfuge, a trick, to conceal the latter. This, Sir James, has been your course. You denounced a sanguinary waryou made formidable preparationsyou breathed fierce menaces-you proclaimed to A, and B, and C, and D, and E, that you were about to make a dreadful irruption into their territories with an army of ex-officios, all veteran troops,-a battering train of heavy briefs, and a tremendous corps de réserve, or rocket brigade, of fines and imprisonments. "Look to yourselves!" you cried; you are all equally guilty, and upon all I will take equal vengeance!" But after this bluster and braggadocio, these burly Bobadilisms, this swagger and this rodomontade, had gone forth, lo! your operations were a mere month of March, which, as the proverb has it, comes in like a lion and goes out like a lamb! No, no, Sir James, the purpose, the only purpose, the undeniable, the paltry purpose, is too gross, too palpable, and stands too indelibly recorded against you. The legality of your proceeding I leave untouched. That part of the question has been handled by Sir Charles Wetherell in a way to make Westminster Hall ring with laughter at your expense. But you have one consolation. Sir Francis Burdett is your apologist, and your only apologist. It was kind and charitable in him. He affects to deprecate the party appellations of Whig and Tory. But his defence of you proved two things, that his moral perceptions of right and wrong are influenced by a Whig friend in distress, and that in some men the mind totters before the body.

a man, strongly suspected of a crime, was allowed to be held innocent if he could bring twelve of his neighbours to swear that they thought him not guilty. The old custom is still adhered to, not only of the number twelve, but also of the unanimity. The reason of this is a very cunning one. Absolute unanimity being impossible, when men think with freedom, it obliges the jury, from the outset, to avoid thinking much on the subject of the trial, and to wait till they hear what is thought by the judge, and so, to save trouble to themselves, they acquiesce in his direction. This law of unanimity, therefore, is just an engine by which juries are compelled to do as the court directs them. In England they are liable to be confined till they say they agree-and confined, too, with out food, fire, or candle, unless by permission of the judge, and when he leaves the town, he may carry them round the circuit from town to town in a cart. Blackstone, III. 376. To say, therefore, that English juries decide causes, is a gross imposition on public credulity, and even on the common sense of mankind.

When the Scotch Whigs, some years ago, called aloud for trial by jury in civil causes, in order that they might not be behind their English neighbours, the unanimity formed a stumbling block. A Scottish judge, now deceased, aware of the disputatious character of his countrymen, is said to have remarked, that "no act of Parliament will make twelve Scotsmen of the same opinion on any given point." Our learned English friends did not, publicly at least, speak out the truth, that the use of the law of unanimity is to compel juries to obey the judge as their easiest rallying point. But the Scotch had such horror of perjury that it was found necessary to pacify them by allowing a jury, who could not attain to unanimity, to separate without giving a verdict after remaining twelve hours enclosed. So, after a trial of perhaps sixteen hours, and after being confined twelve hours more, the Scottish jury in civil causes may depart without giving a verdict, whereby all the expense incurred by the parties, and all their own trouble, become fruitless. This is avoided by doing as the judge directs, and by saying as he says.

Jurymen are tempted, or rather constrained, to yield up their judgment, to avoid personal hardship, attended with great damage to parties claiming a settlement of their disputes. It is necessarily a part of the system that the court can allow no enquiry into what passes among the jurymen when enclosed. An offer was recently made to prove, by the oaths of the jurors, that in a certain case a part at least of the jury, if not the whole, after some hours of wrangling, had left the decision to hazard. Various editions of the story have been stated; that most generally alleged is, that they put into a hat bits of paper, marked with the names of the parties to the suit, agreeing to hold the first drawn name entitled to the verdict. In that case, the court necessarily refused all investigation. It would have defeated the law of unanimity, the object of which is not to procure, what is frequently impossible, a sameness of judgment in twelve men, but to procure submission to the direction of the judge.

What, then, is the use of the English and now Scottish Trial by Jury in civil causes, if it be true that confessedly juries are not allowed to judge of the law, and that truly it is little better than mere humbug to say that they are made judges of facts?

I answer, that Trial by Jury is of great value, and even the law of unanimity of jurors, absurd as it is, has not been utterly useless. England was the first country on earth that, at least in modern times, attained to a perfectly fair administration of justice, while it had a fixed system of law. This is mainly to be ascribed to what is called Trial by Jury. But it is high time that this valuable institution should be purified of its dross, and relieved of the imputation to which it is liable, of being a cumbrous system of delusion. Its true nature ought to be known, and its form adapted to the benefit which it is calculated to produce.

The true value of a Trial by Jury in the English form, consists in the control over judges which it gives to the public. Parties meet each other publicly: Each brings forward his evidence publicly. The import of the case on both sides is stated before the public. The judge conducts the proceedings and decides

the cause in the face of the public. The use of the jury is, that the judge cannot decide the cause by merely declaring in a form of words that the plaintiff has gained, or the defendant has gained, his cause. A dozen ordinary men have been set apart by lot in a box: there they sit they have heard and seen all that passed, and the judge must convince them that his view of the case is the right view. He must explain the grounds of his opinion, and shew how and why the decision proposed by him is correct. If he fail to satisfy them, they have it in their power, for the time at least, to put a negative on his judgment.

Most signal benefits result from this: The crown is constrained to appoint none to the office but men experienced in business and learned in the law. An ignorant man in such a situation would never be able to control the pleaders, and would be exposed and run down by public ridicule.

The judge is constrained to act justly. He must act righteously, or encounter infamy, and daily discomfiture, from the opposition of juries to his opinions. Hence the impartiality and high reputation of English judges. The Turkish Mollahs or Cadis are said to yield readily to corruption. Let it be supposed that when a cause is called, a committee of the surrounding mob were at the same instant called out by lot, and the cadi or judge, after hearing the cause, compelled to convince this committee, that the decree pronounced by him is just, it is evident that he would immediately, or from necessity, become a just judge.

The English system is correct so far as it provides that disputes shall be decided, not by ignorant men, but by judges learned in the law. For want of a better invention, the compulsory unanimity of jurors was employed to accomplish this object. Were ordinary persons taken by dozens by lot from the mass of mankind, to decide causes, the kingdom would be without law. Every different jury would have a different opinion concerning the rules of business. In other words, no man would know how to act, because justice would be administered according to no fixed and recorded principles. All the speculations of those men who pro

pose to establish local or popular tribunals, to decide without appeal, are the result of mere ignorance. Civilisation cannot make progress unless the principles be fixed and certain, according to which transactions are to be regulated; and principles can only be recorded and adhered to by men who make the study of them the chief business of their lives.

The fault of the English system consists in this, that it is a system of humbug, and frequently of perjury, The jury are set apart in a box, and told that they are judges. The pleaders address them as judges. The judge addresses them as judges. To be sure, he tells them flatly that they must not meddle with the law, and that they must take it from his mouth; but he tells them also, that they are judges of the fact, although he and his brethren at the next term may probably annul their verdict, because they have misjudged the fact. This mode of treating them as judges flatters their vanity, and flatters the vanity of the populace, who are told they are judged by their country, meaning thereby that they are judged by each other; whereas, in reality, their transactions are judged of according to law as expounded by professional lawyers. Some jurymen, thinking themselves judges, occasionally try to judge for themselves, but, oppressed by the law of unanimity, and their own want of experience in business, they are compelled to yield after an ineffectual struggle, and to give way to the majority of their brethren, who usually obey the direction of the judge. The minority, in such cases, are sure to incur the guilt of perjury, or more generally the whole jury do so. They have sworn to try the cause, or to do justice; but instead of doing so, which would require a special exercise of judgment in each man, and thereby lead to strife, they retire for safety and ease to apathy, and wait to hear and obey the opinion of the judge. All this is wrong. No more grievous calamity can befall a people than to tamper with perjury, that is to say, with the great safeguards of human society, truth and religion.

Why should the forms of a barbarous age be maintained to the effect of producing deception? Why should

not justice be administered under forms consistent with truth and honesty and sound principle; and in such a way that all and sundry may clearly understand what is doingthat a man may know under what sort of government he actually lives -what place he holds, and what place other men hold, and what duties they perform to the community? Why should jurymen be puffed up with the notion that they are judges, when so many inventions have been devised to limit and annul their decisions -and have even been rightly and necessarily devised, as all admit who know any thing of such proceedings? It would be easy to place the matter on a right footing. The oath of a juryman ought to be, not that he is to try a certain issue, or decide a cause, but that he is to consent to no final judgment that appears to him inconsistent with truth and substantial justice. The pleadings ought all to be addressed to the court. The judge ought to pronounce the sentence or verdict; and having done so, it ought to be solemnly rehearsed to the jury. If no objection is made, the sentence stands. If a juryman refuse his assent, the whole may retire for a limited time. If eight out of the twelve do not concur with the judge, after a brief consultation, they ought to be dismissed, leaving the (plaintiff) pursuer without a verdict. In this way juries would substantially have as much power as at present, while at the same time there would be no modifying of opinions -no throwing the dice, or drawing lots, among the jurors, no perjury, little interference with the judges, no insulting of juries by withdrawing from them the law, and few, very few, new trials. The public would see and know the true value and duties of juries, viz. to act as spies upon the learned professional judges, to compel them to explain their views and opinions to the world at large, and to resist any manifest tendency to partiality or corruption. Ordinary juries, especially as now. constituted, are unfit to perform any other public services than these; but to these they are competent, and nothing more ought to be required of them. The Trial by Jury would be purified from its absurdities and immoral tendency, while it would remain available for

every important purpose, to which it is calculated to prove subservient.

Our English neighbours have of late appeared very willing to make experiments on the Scotch, and to hold their ancient institutions very cheap. Let them now try upon Scotland, for civil causes, the experiment here suggested. It would prove highly acceptable to a people who retain a great regard for religion and sound morals. The Jury Court which they sent down to us was only a modification, and a bad modification, of their own. They have botched and mended at it these fifteen years, without rendering it acceptable to the country. The reason was, they insisted on favouring us with the greater part, though not all, of the defects of their own Jury Courts-their apostolical number twelve, instead of our fifteen

their unanimity of jurors, instead of our verdicts by majority-their proving of writings by witnesses, when nobody had disputed the genuineness of the writing-their management in admitting or requiring speeches about the import of proof before any proof has been led, and in allowing to a plaintiff (pursuer) two speeches by counsel, and to a defendant only one, and that before examining his witnesses. Hence chicane and dexterity have been recommended to us. A pursuer (plaintiff) tries to leave out some bit of evidence necessary to his antagonist to force him to lead evidence, while the other is tempted to hazard the want of proof on his part to avoid the effect on an ignorant jury of the persuasions of his opponent's counsel. Thus dexterity and stratagem are substituted for the grave and deliberate investigation of truth. The minds both of practitioners and of litigants are corrupted. All these, and other absurdities, stared Scotsmen in the face when the Jury Court appeared among them. They gazed with wonder and disappointment on the far-famed English Trial by Jury in civil causes. Like travellers in a strange country, they perceived a thousand absurdities in the procedure, to which the natives, by habit and familiarity, had become insensible. Had England sent down to us the institution, by merely declaring, in a single sentence, that it should be lawful, when found expedient, for the judges of the Court of