HC Deb 28 May 1823 vol 9 cc563-73
Mr. Hume

said he held in his hand a petition which he deemed of great importance, and to which he called the most serious attention of the House. He should first state the contents of the petition, and next comment upon the allegations it contained. The petition was as follows:—

"To the honourable the Commons of the United Kingdom of Great Britain and Ireland, in parliament assembled,

"The humble petition of John Hunt, of Old Bond-street, publisher—

"Showeth,—That your petitioner was, in 1821, prosecuted on an ex-officio information by his majesty's attorney-general, for a libel in the weekly newspaper Called the "Examiner," of which he is proprietor; and that previously to the trial lie attended on summons, when the master of the Crown-office nominated the forty-eight jurors out of which the panel to try the case was to be formed. That your petitioner has also recently been indicted by the self-styled "Constitutional Association," for publishing an alleged libel on the late king, in a poem entitled the "Vision of Judgment;" and that he attended a similar nomination of the Corwn-office on the 15th day of the present month. That on both these occasions the master has insisted on selecting out of a book containing the names of many thousand freeholders and leaseholders of the county of Middlesex, such names only as he chose, proceeding on no understood plan, but picking out or passing over the names, entirely at his own wilt and pleasure.

"That the master declared it was the constant practice of his office to nominate from among those persons alone to whose names the designation of "Esquire" was affixed in the freeholders' book by the petty constables who make the returns to the sheriff. Your petitioner conceives this practice to be in the highest degree unjust and illegal; because all the freeholders and leaseholders are by law equally eligible to serve on special juries, yet by this arbitrary and absurd distinction the immense majority are excluded from the exercise of a great constitutional right, and the discharge of an important civil duty. Your petitioner could enlarge on the unauthorised, uncertain, and ignorant manner in which the title of "Esquire" is lavished by the district officer, and could state numerous instances within his own immediate knowledge, wherein the persons so styled have been retail tradesmen actually carrying on business; but he forbears to fatigue your honourable House with a detail which he trusts is not required, in order to convince your honourable House that nothing can be more unjust or ridiculous, than that the designation of Esquire, arbitrarily fixed by a subordinate district officer to the names of a small minority of the freeholders, should be held to give them an exclusive privilege to discharge the duty of special jurors, to the practical disfranchisement of the great majority of those whom the law has declared eligible.

"Your petitioner has further to complain, that the mode of nomination practised by the master is still more objectionable than this unjust exclusion, and in effect totally deprives the subject of all security for obtaining an impartial jury. A person holding the situation of master will naturally have a bias towards the jurors in any is obviously not a proper person to have the absolute selection of the jurors in any cause between the crown and the subject. The law had however intended, as it appears to your petitioner, that though the master should be the in- strument of nomination, the jurors should be taken in such a manner as to get rid of the exercise of any discretion on the part of the master, and consequently to remove from him both the temptation and the power to be partial or corrupt. There are various ways by which this object could be secured, as by a ballot (a plan adopted by the wisdom of your honourable House in regard to your election committees), or by some rule of chance on the principle of the ballot. Your petitioner strenuously urged the master to adopt some plan of this description; but though that officer admitted that he had done so on former occasions, and that his present mode enabled him, were he so: disposed, to select unfairly, he persisted I in the arbitrary way stated of choosing the 48 names. Your petitioner protested against the proceeding as calculated to afford scope to the greatest partiality and corruption—as manifestly counteracting the intention of the law—and as inevitably exciting the strongest suspicion in the mind of the subject, without producing a single countervailing advantage to the administration of justice. But your petitioner's protest having proved ineffectual with the master, and your petitioner having observed that the Court of King's bench refused lately even to hear a complaint against this mode of selection, he as no resource but to appeal to your honourable House.

"Your petitioner also begs leave to assure your honourable House, that he conscientiously believes, from the peculiar description of the persons nominated in four Crown cases in which he was concerned as defendant, that he has suffered grievous wrong and injury by the abuse of the power to select juries which this practice puts into the hands of the master.—Your petitioner therefore prays your honourable House to institute an immediate inquiry into the practice he complains of, and to adopt some remedy for an evil which, whether considered as offering temptation and affording scope for the grossest corruption, or as exciting a violent suspicion of the, administration of justice in the minds of his majesty's subjects, is one of deep and pressing importance both to the government and the people. And your petitioner will ever pray, &c. JOHN HUNT."

Mr. Hume

said, that the second paragraph in this petition contained a statement which affected the trial by jury; for if the master of the Crown-office had the power to select, there was at once an end to the security of an impartial jury, that best bulwark of public rights. He would contend that this mode of selecting special juries, as they were called, was liable to the greatest abuse. It was open to undue influence, to unfair bias, and it tended to destroy that right to have an impartial and fairly selected jury, which Englishmen boasted. The petitioner made no complaint against the present master of the Crown-office, who was a gentleman of excellent character, and one who would, no doubt, act fairly in the discharge of his duty; but, who could answer for his successor? Who could answer that such a power would not be abused? He knew that the situation was a patent one, and held for life. But this gentleman had also, during pleasure, a situation producing 1,500l. a-year in the Auditor's department, and who could say that the public had adequate security against such a man being tampered with? In the year 1817, a committee of the common council was deputed to inquire into the state of the city of London special jury-book, and the result of that inquiry was the formation of a new book, and the redress of several abuses. When on a former occasion this subject had been brought before the court of King's-bench, affidavits, pro and con, were filed; and the master of the Crown-office avowed his right to nominate the jury. Mr. Justice Bayley, in remarking upon the practice, said, that the master had, by law, the power of selection, and if to select were to be understood to pack, then he had the right of packing. He (Mr. Hume) protested against such an interpretation of the law; he denied that any officer could, or ought to have the power of picking or packing a jury. It was contrary to the spirit and intention of the constitution, and a direct infringement of the law. If such a power could be exercised, why had they been sitting for the last three weeks in a committee of inquiry upon the conduct of the sheriff of Dublin? Was not the charge against him, one of packing a jury? It was quite impossible to suppose that the master of the Crown-office was ignorant of the general politics of most of the names in the book in his possession. If he (Mr. Hume) had the care of it, he could not help acquiring such knowledge, and he presumed the master of the Crown-office must know what any other man in the same situation could not fail to possess. It would be better to abolish the trial by jury altogether, and leave the matter to be decided on the responsibility of a single man, than to have twelve men picked out under influence and bias. In this way, the master of the Crown-office exercised, or might exercise, a power which neither the king nor parliament had ever possessed or exercised. So pregnant with dangerous consequences did he deem this practice, that if no fitter person undertook the task, he would move for an inquiry into the subject.

Mr. Philips

repelled the insinuations of the hon. gentleman as disadvantageous to the character of the master of the Crown-office [Cries of "No, no!"]. Did not the hon. gentleman say, that the master of the Crown-office must be more than man, if he were not occasionally biased in his conduct by other considerations than the strict discharge of his duty? Was not that a most unworthy insinuation? It was a supposition directly at variance with the tenour of that honourable individual's life. In the first place, as one proof of the inaccuracy of the hon. member's information, the emoluments of the situation to which the hon. member had referred were only 1,000l. and not 1,500l. a-year. Was a man who, out of motives of delicacy (by which not one person out of a hundred would have allowed himself to be influenced) had liberally sacrificed 5,000l. or 6,000l., and a pension of 500l., to be considered incapable of doing justice, because he happened to have another employment of 1,000l. a-year? Of this he was sure, that if the emoluments of all the places held by all the members of his majesty's administration were offered to the respectable individual in question, he could not be induced to pack a jury, or do any other unworthy act. The practice, as he was informed, in the Crown-office was this: the master called for the jury-book, opened it at random, and selected sometimes three in a page, and at other times one of the names, which had the designation of "merchant" added to them. The master knew nothing of ninety-nine out of every hundred of these names, except that they were described as being merchants. The master would be glad to avail himself of any suggestion which could make the nomination of the juries more satisfactory. In the case which had been alluded to, in the court of King's-bench, the master did not take the name of the person where his pen fell, because he saw the description "ragmerchant" superadded; and he preferred another on the supposition of its being more respectable, because the term "merchant" alone was annexed to it. He repeated that no man was freer from a shadow of imputation than Mr. Lushington. The hon. gentleman had, also alluded to the inquiry that had taken place in that House into the conduct of the sheriff of Dublin. Now, there was no analogy between the two offices. The sheriff lived among the parties, and knew them all. The master of the Crown-office was wholly unacquainted with them. He did not know one person in a hundred of those, whose names were in the book of special jurors.

Mr. M. A. Taylor

said, that his hon. friend had not the slightest intention, when he adverted to this inconvenient mode of striking a jury, to cast any imputation upon the present master, than whom there could not be a more respectable man, or one better adapted to fill his situation with credit and honour. His object was to show the existence of a practice liable, in worse hands than the present master, to be most dangerously abused. He knew nothing of the facts connected with the petitioner's case, or of his prosecution by the Constitutional Association, which was an absurd and improper confederacy; but he had heard complaints reiterated against this mode of striking juries. There ought to be an inquiry into the practice, for the purpose of having it altered; and this was the best time to institute it, when the office was worthily filled. No possible harm could result from an inquiry; and it was most desirable that the special, like the petty juries, should be drawn out of a box indifferently, although even then it should be ascertained that the names were impartially placed in the box.

Mr. Creevey

said, he had had a long ac quaintance with Mr. Lushington, who was a most honourable man, and one who might be said to have a chivalrous disregard of private interest. But he had admitted, that if he pleased he might select the jury. It was time, therefore, that a practice not abused by him, but liable to the greatest abuse hereafter, should be regulated. His hon. friend had not cast the slightest reproach upon Mr. Lushington.

Mr. Philips

explained, that he under- stood the tendency of the hon. member's statement was to cast something like a reflection upon the master.

Mr. Bennet

said, that although the character of the present master justified all that had been said with respect to him, it afforded no argument in favour of the system. For, although the present master was not guilty of any violation of life duty, did it follow that his predecessors never had been, or that his successors never would be so? Such a power was always liable to abuse. At every assize in the country, the greatest abuses took place in the constitution of special juries; for be believed that private interest, and even open canvas, went a great way in the construction of those juries. He held in his hand a report of a committee of the common council of London, in 1817. It stated, that out of 485 names, out of which all the special jurors were selected for the city of London, 126 were not householders in the city, and therefore, by law not qualified to serve; of the remaining 259, 60 were householders, who, in the modern sense of the term, were termed merchants, while 171 were tradesmen. In a case of libel, too, it appeared, that the solicitor for the Treasury had written to a person in the Secondaries'-office, respecting the nomination of the jury. In his opinion, it had been clearly made out that the master had the power of packing a jury if he pleased. That was a system which was opposed to common sense and justice, and ought not to be permitted to continue.

The Attorney General

said, he collected from what the hon. member who presented the petition had stated, that the petitioner made no complaint with respect to the conduct of the master of the Crown-office as regarded the particular case of the petitioner, but merely against the general mode of nominating special juries. It was not, as he understood, pretended, that the petitioner supposed that any hardship would result to him from the conduct of the master. If the hon. member should think proper to bring the general question under the consideration of the House, he would give it all the attention which it deserved. He did not, however, hesitate to state, that, in his opinion, no alteration which the hon. member might propose to introduce could improve the present system of nominating special juries. The hon. member had declared, that the present mode of nominating special juries was of recent date. That was not the fact. The present practice had existed for centuries; nor could he conceive a more impartial mode of selection than was pursued under it. He challenged the hon. member to mention a case in which the Crown had been concerned, in which any improper interference had taken place on behalf of the prosecution, with respect to the nomination of the jury; and he was convinced, that if it had been attempted, the master of the Crown-office would have indignantly spurned it.

Mr. Bright

said, he considered the present case to be one which powerfully called for inquiry. It rested on its own merits; no charge was made against any individual officer or juror. The attorney-general had said, that the system had existed in its present state for a century. Now, it so happened, that for more than forty years the abuses of the system had been loudly complained of. So long ago as the year 1777, Mr. Horne Tooke had given a description of the mode of selecting special juries. The observations of that gentleman were so remarkable, that he would read them to the House:—"The Master began, but as I looked over the book, I desired him to inform me how I should know, whether he did take the first forty-eight special jurymen that came, or not; and what mark or description or qualification there was in the book, to distinguish a special from a common juryman? He told me, to my great surprise, that there was no rule by which he took them. Why then how can I judge? You must go by some method. What is your method? At last the method was this: that when he came to a man a woollen-draper, silversmith, a merchant (if merchant was opposite to his name), of course he was a special juryman; but a woollen-draper, silversmith, &c. he said that there were persons who were working-men of those trades, and there wee others in a situation of life fit to be taken. How then did he distinguish? No otherwise than this if he personally knew them to be men in reputable circumstances, he said, he took them; if he did hot know them, he parsed them by. Now, gentlemen; what follows from this? But this is not all. The sheriff's Officer stands by, the solicitor of the Treasury, his clerk, and so forth; arid whilst the names are taken, if a name which they do not like occurs and turns up, the Sheriff's officer says, 'O, Sir, he is dead.' The defendant, who cannot know all the names in that book, does not desire a dead man for his juryman. 'Sir, that man has retired.' That man does not live any longer where he did. 'Sir, that man is too old.' 'Sir, this man has failed, and become a bankrupt. 'Sir, this man will not attend. 'O (it is said very reasonably), let us have men that will attend, otherwise the purpose of a special jury is defeated.' It seemed very extraordinary to me, I wrote down the names, and two of them which the officer objected to I saved. I begged him not to kill men thus without remorse, as they have done in America, merely because he understood them to be friends to liberty; that it was very true, we shall see them alive again next week and happy; but let them be alive to this cause. The first name I took notice of was Mr. Sainsbury, a tobacconist on Ludgate-hill. The sheriff's officer said he had been dead seven months. That struck me. I am a snuff-taker, and buy my snuff at his shop; therefore I knew Mr. Sainsbury was not so long dead. I asked him strictly if he was sure Mr. Sainsbury was dead, and how long he had been dead? 'Six or seven months.' Why, I read his name to-day; he must then be dead within a day or two; for I saw in the newspapers that Mr. Sainsbury was appointed by the city of London one of the committee (it happened to be the very same day) to receive the toll Of the Thames navigation: and as the city of London does not often appoint dead men for these purposes, I concluded that the sheriff's officer was mistaken; and Mr. Sainsbury was permitted to be put down amongst you gentlemen, appointed for this special jury. Another gentleman was a Mr. Territ. The book said he lived in Puddle-dock. The she-tiff's officer said "that gentleman was retired; he was gone into the country; he did not live in town.' It is true, he does (as I am told) frequently go into the Country (for I inquired). His name was likewise admitted, with some struggle. New what followed. This dead man, and this retired man were both struck out by the solicitor of the Treasury; the Very men whom the sheriff's officer had killed and sent into the country were struck out, and not admitted to be of the jury. Now, gentlemen, what does that Wok like? There were many other names of men that were dead, and had retired, which were left out."—Such was the lan- guage of Mr. Tooke in 1777.* It might be a reason with the attorney-general for continuing the abuse, merely because of its antiquity, but if it had existed for long time," it should be also recollected that it had been for a long time complained of. It was enough for that House to know, that the system was complained of. The course of justice, should only, be pure, but its purity should be unsuspected. Englishmen should be enabled to go out of a court of justice, strongly persuaded that their cause had been fairly heard. It was notorious that the special juries in the city of London, were not only composed of the same class of men, but of the same individuals, term after term. He would ask the solicitor-general whether he did not expect to see the same faces in the jury-box at Guildhall, in the approaching term, which he had been accustomed to behold, during many of the preceding terms? The juries in the court of Exchequer had a very bad reputation. That circumstance alone was a sufficient ground for the institution of an inquiry by that House. He believed, if the panels for the court of Exchequer for the last six years were returned to the House, that the same names would be found upon all of them.

Mr. Hobhouse

considered it extremely improper, that any person, having the selection of juries in his power, should hold an office which was dependent on the Crown. The hon. and learned attorney had challenged any member to point out a case in which the government had interfered to procure the selection of a jury. He certainly could not mention any case in which it had been proved that the government had been guilty of such disgraceful conduct, but he apprehended that it would not be difficult to prove, that government had sent particular cases to be tried before juries, who they thought would probably convict the defendant. He would wish the attorney-general to declare upon his honour, whether government had not sent his honourable colleague, sir Francis Burdett, to be tried in Leicester, because it was thought that the jury there were more likely to return a verdict of guilty than a London jury? Now, that the question respecting the nomination of special juries had been mooted in that House, the country would expect something to be *See Howell's State Trials, Vol.20.p.691. done. It was absurd to say that the master of the Crown-office did not select the jury. The attorney-general had contended, that it was impossible to discover a better mode of nomination than the one now in practice. In his (Mr. H's.) opinion, the drawing the names by ballot was a much more impartial mode. He could not conceive what objection there could be made to a selection by ballot. The system of ballot was certainly that which was least liable to objection. He was obliged to dissent from what the learned attorney had stated, with respect to the antiquity of special juries, at least in cases of libel. The learned attorney was wrong when he stated that the petitioner complained of no damage to himself. The petitioner did complain. He complained that his chances of acquittal was diminished by the mode in which Special juries were nominated. It was the imperfect system and the abuses it generated that were complained of, and that demanded inquiry. The case could not be in better hands than in those of his hon. Friend the member for Aberdeen, and he should have his most zealous support.

Mr. J. Williams

said, that however respectable the master of the Crown-office might be, his character was no answer to the case which had been made out for inquiry. The complaint was against the system; and so long as that system continued' uncorrected, no fair trial could be had in a case where the Crown was a party on the one hand, and an obnoxious individual on the other. If no one else took up the subject, he would call the attention of the House to it.

Mr. Hume

adverted to the improper manner in which juries were appointed in the court of Exchequer. He had found upon inquiry, that individuals actually obtained their whole income from the pay which they received for serving as jurors in that court. He understood that if a juror should venture to give a verdict against the Crown, he would never again be summoned.

Ordered to lie on the table.

Mr. Hume next presented a petition from J. W. Trust, bookseller, on the same subject, and gave notice, that early next session he would move to alter the law and practice with respect to the nomination of special juries.