A LETTER TO Sir JAMES ALLAN PARK, Knt. HIS MAJESTY'S JUSTICES Court of Common Peas* ms CONDUCT SUMMER ASSIZES FOR THE COUNTY OF DEVON, In the Year 1816. SUUM^VUTQUB. ILontion : 'printed for the EDITOR! AND SOLD BY W. AND J. LOWNDES/ 9, SrYDGES STREET;, ■' Nearly opposite Drury Lane - Theatre. 1818. 1. CawPTON, Printer, Middle Street, Cloth Fair, London. 9[li\)eittsemettt» Impressed with every respect for the Author of the following Letter, the Editor considers it his duty to state, that it appeared in the Exeter Alfred of the time in which the circumstances alluded to took place ; and that no motives, but the ability displayed by the Author, and a prevailing wish to expose injustice under ivhatever shape it may ap- pear, have induced the Editor to bring it once more to light. The Author is entirely unknoivn to any one connected ivith this publication ; the facts mentioned must therefore be ushered into the world without any document to vouch for their au- thenticity; except, the idea which any professional or 6th.er person, ivho has seen the subject of the Letter presiding on the Bench, may entertain of his conduct; and, accordingly, consider the circum- stances mentioned to be true, in substatice, and matter of fact. To Sir James Allan Park, Kitt. «NE OF BIS majesty'^ JUSTICES OF THE COURT OF COMMON PLEAS. My Lord, Education in my earlier yeapsy and reason and reflection at a matu'rer age, have taught me to venerate the laws of my country, and no man shall surpass nie in a rational attachment to its constitutional authorities. Think tiiyb, my Lord;, ^at this address to you is dictated by personal pique, prejudi'cei or passion ; it is the respectful but firm remonstrance of one, who feels it to be a duty that he owes to his country, not to see the first principlts of that jurisprudence, which has farmed the character of Englishmen, and secured them their civil, political, an^d religious rights, violated with impunity. Possessed of a Constitution, that not oiStly re- cognizes, but most minutely measvives the relative r^hts of peasant, peer, and prince, we have iWueh to boast of: it was- obtained^ for us by the blood of our forefathers, and: is endeared to us by the blessings which it confers. In gratitude ta them, in jtistiee to ourselves and to posterity, 4 we ought to repair rather than destroy its wasting land-marks, to protect its free and sacred prin- ciples from perversion and pollution, and its noble and venerable institutions from violation and invasion. Although I now, my Lord, from a deep sense of public duty, through the medium of a free press, the vital spark of our Constitution, com- ment on your conduct as a Judge, still I feel bound, by every tie, to do justice to your pri- vate character as a man : — were that in question, I should be found amongst your warmest advo- cates, and not your loudest accuser. In private society yoii are courteous, affable, benevolent^ humane, loyal, and pious ; but on the bench, impatient, petulant, and precipitate ; anticipating the merits of a cause, as if gifted with the attri- butes of the Deity ; informing all around you of your premature judgment, either in the language of a man impatient of controul, or by gestures unequivocally indicative of displeasure. Were you endowed with divine intelligence, with the penetration of the Eternal, such conduct would still be incorrect. An angry and irritable ju^^It.wa3 a disgraicefiiJ exhibitioniri a court of justice; — to every hono.ui« able and ingenuous mind, it must havebeen disg.usti*- ingly fuls.orae ; — to other witnesses, pojssessin'^ the Gommon feelings of men, pointedly insulting. Thesse gentlemen are, in private life, respectable ; ini their' profession, eminent ; and required not such an invidious, partial, disgraceful, and de- grading tribute to their merit. In the eye df justice, all men have an equal right to civility and courtesy ; kud your Lordship, and the learned Goimmsel, should never forget that povepty 13 njofc a crimei by which tliat right can be forfeited. ^ ^ ' -5ln Jewell against Smith, your Lordship loudly pirbtlaimed your opinion, immediately on seeing a iplam off the premises, even before it was opened to the Juny ; and, on the examination of the se- cottd witness for the plaintiff", called on thfe' de- fendant's Counsel, and asked them if they could anstv^ev the ptaintiff's witnesses, again exiclaiming, t I shall tell the Jury." Sitting very close to the defendant's Counsel and Solicitor, I heard all that passed :•— We can contradict the ivhole : shall we " not he heard!" said the Solicitor. " What can " we do?" said the Counisel : " You see the Judge " is against you." You then said, " If you go on, I shall tell the Jury to consider it as a ques- " tion for damages, on account of the violence;" and this, my Lord, after the plaintiff's witness had twice, on oath, negatived all violence, and his Counsel had stated the question as purely a question of right. Look at your notes, niy Lord! — "Shall we " not be heard?" said the Solicitor, who I know ranks high in the profession. This was a very na- tural question ; audi alteram partem is the first principle of natural justice ; it is a fundamental maxim in our laAV. By what law in the consti- tution, by what language in your commission, are you, my Lord, authorised as Judge to refuse to hear a host of witnesses collected at vast trouble and expense, and to dictate to a Jury :the verdict they are to return, after debarring them from hearing that evidence, according to which they have been sworn to decide? A Jury was sworn to give a verdict according to the evidence, that is, I believe, according to the evidence that each party might choose to adduce, and not according to as much of it at your Lordship, in your pleasure and importance, might think Jit to hear. On other occasions, you are pathetically eloquent on the soleifin and obligatory nature of an oath, but that is, forsooth, when it is administered to z. ivitness. "What becomes of the solemnity of the obligatory force of an oath when administered to a Jury, when you stop a cause before even the plaintiff has finished his case, although the defendant has a host of Avitnesses to contradict him ; and tell or direct (I use your own words) the jury (pooi- passive souls !) that they must, in spite of their oath, find a verdict for the plaintiff? " What can " ive do V said the Counsel ; " you see the Judge " is against you." ; '■- To what a dilemma are the Counsel reduced 1 they must either quarrel with the Judge, or aban- don their duty to their client. The learned gen- tlemen are generally thought too obsequious to the bench. In the cause to which I advert, they certainly ought to have respectfully requested your Lordship to hear the defendant's witnesses, and, on your refusal, to have insisted on and claimed it as a right not to be restricted, limited, qualified, or controuled, by any power known to the constitution, not even by the legislature it- »self, for that (according to Junius) is limited not only by the general rules of natural justice, by 9 the welfare of the community, but by the forms and principles of our particular constitution. A special juror wished to ask a witness a question before the Counsel had finished the examina- tion ; your Lordship would not permit him, on the pretence that it was contrary to practice. You must know, my Lord, and the jurors ought to know, that thei/, and they alone, are the real judges in every question of fact, and that it is not only their right, but likewise their duty, to ask, in every stage of the trial, such questions as they may conceive necessary to inform their consciences, subject only to your Lordship's cor- lection in points of lata. They have not the means afforded them of taking down the evidence, as your Lordship has : the question may occur to them in one moment, escape them in the next ; it is, therefore, essential to the ends of justice that it should be asked immediately. It is of the utmost importance, my Lord, that they should be taught their rights and their duties : if, know- ing them, they have not sufficient spirit to pro- tect the one, and integrity to perform the other, they ought to be disgraced ift the eyes of their injured country ! It has been the practice of your Lordship's pre- decessors to leave the cenduct of causes to the advocates ; but if they, in their wisdom, saw oc- io casion for compromise or reference, they deli- cately, and from the best and purest motiveS) tinted their opinion, but never enforced it by angry gestures or intemperate language. It is the right of the advocate, my Lord, to conduct his cause as his judgment dictates, if he infringe no established practice, nor violate any rule of law. The character of the Advocates on the Western Circuit, my Lord, one might have sup- posed, would be a pledge that such a right would not have been abused. Its leaders are men of ad- mitted talents : the one, not surpassed in legal acuteness, or in ardent but discreet zeal for the interests of his clients ; the other can never be for- gotten while knowledge, integrity, and honour, are esteemed amongst men — to him we may point .as the inodel for the rising Advocates of this and all future times. Called from amongst them when he may be, either by the honours that await him, or to pay , that debt which we must all one day discharge, he will have taught them this important truth,— that t)ieir duties, under ail cir- Ciimstances, are compatible with that civility, .courtesy, and humanity, which are due froin man to man, however unequal their station in society ; and that they are perfectly consistent with as high, as fine, and as nice a sense of honour, as e'er adorned a person or dignified a people. 11 By w|iat authority, my Lo,rd, did you exainin* ' at the bar of y«ur court a respectable man as to his religious creed? You askedhim if he had ever taken the sacrament, he hesitated to answer. You repeated your question, he then said he had taken bread and wine. His competency as a, witness was not in question ; it had not the most remote reference to the cause in which he was cxaniined : he came not there to be exposed to those who might differ from him in their religious tenets. Ask your own heart, my Lord, it will tell you that a man's religion, if it be pure, is a question solely between his conscience and his God ; and that it is the duty of a judge to dispel prevailing prejudices, whether political or religious, and not to inflame them. Is it true, my Lord, that, on a Quaker presenting to you a memorial on the be- Ija^f of .an unfortunate man fiow no more, you flew ijatO/ a passion, and said that no one but a Quaker could be capable of such an improper in- terference? If it be, what a homage to their virtues \ Yes,, my Lord, it is a truth not very grateful to iVi;s who are of a different persuasion, that, in the cause of humanity, they are ever jfound the most disinterested, ardent, and perse- vering. A very respectable Solicitor, suggesting, in an under-tone, what he doubtless conceived im- IS portant in the cause, received this undignified and unjust rebuke: — Hold your tongue, Sir; * ' let your Counsel alone, they can do better ivitJi- ^' out you." As he thought it important, it was, ~ in njy humble opinion, his duty to suggest it ; but admitting, for a moment, that it was an error, it was sanctified by its cause ; it was on the side of duty : — I would to God, my Lord, that such were your's. . Where, again, was the dignity of the Judge, when the mere creaking of a door could rouse your anger to such a pitch, as to induce you furiously to rise from your seat, and exclaim, "Javelin-man! I say. Javelin-man! oil that " door at my expense." While you were repeat- ing your dignified commands, the trembling man opened the door, and said, " My Lord Judge, I am about it" Curiosity is certainly not con- fined to the fair sex ; I confess mine is very great to know how this farce ended. Did your Lord- ship actually pay the penny ? When you enter the county of Devon to administer justice, you have a right, my Lord, to expect that the doors ef the Court be well oiled, that they cause you no interruption. That County, which cheerfully pays its share towards furnishing your Lordship with corn, Avine, and oil, has a right to expect that you will not suffer the doors of the Consti- 13 tution to creak on their hinges : England expects every man to do his duty, whether Prince, Peer, Prelate, or Peasant. >• I will now call your Lordship's attention to s work, which, if generally read, cannot fail tc become of great public utility, as it breathe! throughout the genuine principles of civil, politi- cal, and religious liberty, and inculcates the purest precepts of public and private duty : it is an Enquiiy into the Duties of Men, by Thomas Gisborne. In treating of the peculiar duties of Judges, he says, " Patient and uniform attention, " during the progress of a trial, ; should mark the " conduct of an upright Judge. His duty is to " imprint on hiii memory every leading fact and " important circumstance on either side of th( question ; to listen without bias to the con " tending Counsel ; and impartially to examin " the adverse witnesses. He will not attempt f J.' shew his sagacity by ostentatiously anticipatir " what he might shortly have heard from the ba *' nor gratify his vanity, or indulge his wearinei " by needlessly interrupting the pleaders and \y " nesses, and preventing pertinent interrogatifi " and replies. While he unites in his own * ' meanour affable condescension with sober nity, he will check in the advocates all u'e- " coming artifices, all brow-beating, all atttf ts t4 f;^ .te|;e permission of new trials, in a variety of " cases '; are among the piecautio-ns by which the " Constitution has wisely endeavoured to secure this momentous object. Yet all its precautions " might have been found- ineflfectual, had it not been for that publicity in judicial proceedings *f ■Whieh is eatabiished in this country j a publicity '■^ whfch i'enders the conduct of each Judge, dur-^ " ing the whok Coufse of a trial, as well as his " final decision, ' known, not ; only to the parties " Gfapcerned,, and their ageiitsj but to all persons " whatever who have the curiosity to be present ; " and to the inemhers of the legal profession icho crowd round the tribunal, anxious to mark his " behaviour and determination, and too discerning' " not to discover any material impropriety in either. " This publicity is, in effect, rendered uriiversal " by means of the press, which, in all cases ; of " importance, conveys a detailed account of ju- " dicial transactions to every quarter of the king- " dom. That Government which dares not allow ^' its own laws and proceedings, and the conduct of ' * the Courts, to be fairly discussed by the public, " betrays its weakness or its guilt /"• It is in our Courts of Law, my Lord, that the finest lessons of loyalty are learned ; there the people look to the Judge for an example of all that is dignified in demeanour, and deliberate and so- lemi^ in judgment. To elevate to the judgment- seat men not endowed with that cool discretion, that degree of patience, which are essential to the proper discharge of so important a trust, is to at- tack the very vitals of onr -Constitution : it is there the people appeal for decisions in their dis- 17 putes ; they receive them with reverence, and obey them with implicit submission : hence the animosities of contending parties are allayed, and they return again to society, good friends, and peaceful neighbours. Not so, my Lord, if either party is unheard ; refuse them that right, you in- flame their minds, alienate their affections from the Government, and break the great bond of society, the chain on which depends _^the harmony of the whole. ."»tf-u:-i. You must, my Lord, have forgotten that you represented the Sovereign of this realm ; that the allegiance of the subject- is the child of justice ; that, by standing between the people and that fair and open trial by jury which they have been induced to look for, you were depriving them of their dearest right,. a right of which, in later times, the Judges of the .land have generally been, and I hope ever will be, the, most strenuous assertors. One of the first acts of the reign of our once most gracious, now unhappily afflicted. Monarch, was to render the Judges independent of the Crown, his Majesty having been pleased to declare, " That he looked " upon the independence and uprightness of the " Judges as essential to the impartial administra-; " tion of justice, as one of the best securities of the " rights and liberties of his subjects, and as the " most conducive to thehonour of the Crown." 18 What is it, my* Lord, that has formed the cha- ?^et6i"of Ehglishmen to all that is open, manly, ^en€Ebtig; !an(f brave ? What is it that has imbued ihem with that high an-d UB tameable spirit, that th^y^-pKefep 'tfeath rather than yield to even the semblance of inj ustice and oppression ? What: is it that has inspired tbem' with that self-devotion to thei^'C the ready access to the Golii^si of Law, and the conviction that there they will fm4 justice ; close them, my Lord, and you will see' that it is not the climate that makes bravos and assassins: the hwm'aH' mind, in no clime, can vest under the goa'd-inig sense of rights withheld of injuries Unredressed. In this enlightened age it' is difficult to conceive that Englishmen can be sty debased a» to su#er themselves to be deprived of their dearest right, tlmr right to equal justice hut if sueh must be their fate, it is of little, very little,, import whether it be effected by the supine- ness of juries, the servility qf th-e- bar, or the tindlte' 6f uneomstitutional influence of the Juxlge : they are alike subdued and enslaved, whether it be the effect *df' ina(tvertence or design, ignorance or treason. If your Lordship have been led into these errors 19 by the wish to have the pride of saying, that you JinisJied the business of the county, great as it was, let me, in the name of my country, implore you never to repeat them : it is a pride false in prin- ciple, and, if persisted in, may be fatal in effect. Know, my Lord, that of all intentional ill my heart most fully acquits you ; from such a suspi- cion your private virtues protect you. Were I insensible to or incapable of appreciating them, well, indeed, might you despise me. If you are am- bitious, that, when your earthly career be closed, your name should appear in that bright constella- tion of British Judges, the upright and dignified administrators of our laws, the firm and deter- mined defenders of their country's rights, you will remember and respect the voice of him who is no factious demagogue, that would fain, under the assumed mask of patriotism and a love of jus- tice, wantonly and wickedly loosen the bonds of society, by degrading, in the public eye, the Judges of the land : No, my Lord; they possess my love, my veneration, not because they are Judges, but because they religiously perform ths duties of that high office. In these awful and tremendous times, they must not sink in their Country's estimation. Around the altar of - justice every friend to social order should rally : flO while that is preserved pure and unpolluted, whatever convulsions, political or religious, we may be doomed to undergo, we still shall keep our rank in the scale of nations : let that sa- cred altar be attacked, there shall not be found wanting in its defence the hand, heart, and blood, of RUSSELL. J. Coinptou, Printer, Middle Street; CHuth Fair> Londuti. W. and J. LOWNDES, Booksellers, 9, Brydges Street, nearly opposite Drury Lane Theatre, have lately published A CATALOGUE (PART I.) OF A MISCELLANEOUS COLLECTION OF BOOKS, (new and second hand) ON^ALE_jiX, 'TfTE PJl/CES AFFIXED, Which may still be had. Price One Shilling. Just published, A CATALOGUE (PART II.) OF A MISCELLANEOUS COLLECTION OF BOOKS, (new and second hand) on sale 4t the prices affixed, Price One Shilling. PART III will be published shortly. A GREAT VARIETY OF PLAYS AND DRAMATIC WORKS CONSTANTLY ON SALE. Just puMished, price One Shilling and Sixpence, A LETTER TO Sir JAMES ALLAN PARK, Knight, ONE OF HIS MAJESTY'S JUSTICES OF THE COURT OF COMMON PLEAS, * , ON His Conduct at the Summer Assizes for the County of Devon, in the Year 1816,^ A few remaining Copies of ANEGDOTES OF PAINTERS " Who have' resTdeF or been botot in englanc; WITH CRITICAL REMARKS ON THEIB By EDWARD EDWARDS. With a Jim Portrait, Small Paper, Quarto (published at £l..ls) at Ts. Large Paper, Quarto (published at £l..lS5"ih Boardiyiu 93. 1 In the Press, A LIST OF THE BOOKS, PAMPHLETS, 6(c. PRINTED AT THE PRIVATE PRESS AT WITH THEIR PRESENT PRICES AFFIXED. s--** A very limited Number will be printed.