The Online Library of Liberty

A project of Liberty Fund, Inc.

• Scotch Reform; Considered With Reference to the Plan Proposed In the Late Parliament, For the Regulation of the Courts and the Administration of Justice In Scotland: With Illustrations From English Non-reform: In the Course of Which, Divers Imperfectio
• Advertisement.
• Letters to Lord Grenville, On the Proposed Reform In the Administration of Civil Justice In Scotland.
• Letter I.
• Letter II.: Proposed Division of the Court of Session.
• Letter III.: Proposed System of Pleading.
• Letter IV.: Proposed Trial By Jury.
• Letter V.: On the Bill Called Lord Eldon’s.
• Summary View of the Plan of a Judicatory, Under the Name of the Court of Lords’ Delegates, Proposed For the Exercise of Those Judicial Functions, the Adequate Discharge of Which By the Whole House Has, For These Six Or Seven Years, Been Rendered Confe
• The Elements of the Art of Packing, As Applied to Special Juries, Particularly In Cases of Libel Law.
• Advertisement to the First Edition.
• Part I.
• Chapter I.: Occasion of This Work.
• Chapter II.: Juries—their Use As a Check to Judges.
• Chapter III.: The Check How Done Away By Influence.
• Chapter IV.: Special Juries, a Special Engine of Corruption.
• Chapter V.: Jury Unanimity Increases the Corruption.
• Chapter VI.: Purposes to Which Influence On Juries May Be Made Subservient.
• Chapter VII.: Chief Purpose, Crushing the Liberty of the Press.
• Chapter VIII.: The Exchequer Packing Office Suffices.
• Chapter IX.: Instruments For Crushing the Liberty of the Press.
• Chapter X.: Want of Adequate Obsequiousness Morally Impossible.
• Chapter XI.: Such Juries Worse Than None.
• Part II.: State of the Packing System, Anno 1808.
• Chapter I.: Introduction—two Reforming Shrievalties.
• Chapter II.: The Sheriff to the Lord Chief Baron—notices.
• Chapter III.: Lord Chief Baron to Sheriff Sir Richard Phillips—avowries and Defences.
• Chapter IV.: Observations On the Lord Chief Baron’s Defences.
• Chapter V.: Special Jury Corruption—devices By Which It Was Protected.
• Chapter VI.: Learned Advice From the Temple.
• Chapter VII.: Advice From Lincoln’s-inn.
• Chapter VIII.: Maxims Concerning Reform, Deduced From the Above Letter.
• Chapter IX.: Transactions At the Remembrancer’s.
• Part III.: State of the Packing System, Anno 1809.
• Chapter I.: Commons’ Debate, 24 Th April 1809. Packing and Cutting.
• Chapter II.: Double-fee Abuse, Plain and Embroidered.
• Part IV.—: Remedies Proposed. *
• Chapter I.: Humble Proposal For Restoring the Constitution In Regard to Juries.
• Chapter II.: State of Jury Package In Scotland.
• Chapter III.: Humble Proposal For Restoring the Authority of Parliament.
• “swear Not At All:” Containing an Exposure of the Needlessness and Mischievousness, As Well As Anti-christianity of the Ceremony of an Oath: a View of the Parliamentary Recognition of Its Needlessness, Implied In the Practice of Both Houses; a
• Advertisement.
• Editor’s Note
• Swear Not At All. Mat. V. 34.
• Section 1.: Oath. Incongruity of the Assumption, On Which Its Supposed Beneficial Efficiency Is Grounded.
• Section 2.: Mischievousness of This Instrument Considered In a General Point of View.
• Section 3.: Its Inefficiency In the Character of a Security Against Deceptious Incorrectness and Incompleteness In Evidence.
• Section 4.: Recognition of Its Inutility By Lords and Commons.
• Section 5.: Mischiefs —1. Contributing to the Mendacity-licence Granted By Judges.
• Section 6.: Mischief 2— Weakening In Various Ways the Efficiency of the Laws.
• Section 7.: Mischief 3— Bewildering and Enslaving the Consciences of Jurymen.
• Section 8.: Mischief 4— Giving Aid and Force to the Enterprises of Malefactors.
• Section 9.: Mischief 5— Furnishing Pretence For Misrule By Abuse of Prerogative.
• Section 10.: Misrule, How to Perpetuate—coronation Oaths Amended.
• Section 11.: Mischief 6— Corrupting the National Morals and Understanding—oxford University Oaths.
• Section 12.: Mischief 6 Continued. —ii. Cambridge Oaths.
• Section 13.: Practice of Receiving Judicial Oaths, Its Repugnancy to the Precepts of Jesus.
• Section 14.: Succedanea—true Securities Substitutible to This False One.
• Section 15.: Cause and Origin of the Practice In Regard to Oaths.
• Appendix.
• Truth Versus Ashhurst; Or, Law As It Is, Contrasted With What It Is Said to Be.
• The King Against Edmonds and Others: Set Down For Trial, At Warwick, On the 29 Th of March 1820.
• The King Against Sir Charles Wolseley, Baronet, and Joseph Harrison, Schoolmaster, Set Down For Trial, At Chester, On the 4 Th of April 1820.
• Official Aptitude Maximized; Expense Minimized: As Shown In the Several Papers Comprised In This Volume.
• Paper I.—
• Paper II.—: Introductory View, &c.
• Paper III.—: Extract From the Proposed Constitutional Code; Entitled, Official Aptitude Maximized—expense Minimized. By Jeremy Bentham, Esq. Bencher of Lincoln’s Inn.
• Paper IV.—: Supplement to the Above Extract.
• Paper V.—: Defence of Economy Against the Right Honourable Edmund Burke.
• Paper VI.—: Defence of Economy Against the Right Honourable George Rose.
• Paper VII.: Observations On Mr. Secretary Peel’s House of Commons Speech, 21 St March 1825, Introducing His Police Magistrates’ Salary Raising Bill, ( Date of Order For Printing, 24 Th March 1825.)
• Paper VIII.: Indications Respecting Lord Eldon, Including History of the Pending Judges’-salary-raising Measure.
• Paper IX.—: On the Militia.
• Paper X.: On Public Account Keeping.
• Paper XI.: Constitutional Code—table of Contents As Shown By Titles of Chapter and Sections.
• Commentary On Mr. Humphreys’ Real Property Code, By Jeremy Bentham. From the Westminster Review, No. XII., For October 1826.
• *∗* the Following Note Was Prefixed to the Article By the Editor of the Westminster Review: —
• Commentary On Humphreys’ Real Property Code.
• I.: Deed of Sale.
• II.: Deed of Mortgage. 1
• III.: Marriage Settlement Deed.
• Outline of a Plan of a General Register of Real Property: Contained In a Communication to the Commissioners Appointed Under Letters Patent, of Date the 6 Th June 1828, to Inquire Into the Law of England Respecting Real Property, and First Printed I
• Justice and Codification Petitions: Being Forms Proposed For Signature By All Persons Whose Desire It Is to See Justice No Longer Sold, Delayed, Or Denied: and to Obtain a Possibility of That Knowledge of the Law, In Proportion to the Want of Which T
• Justice and Codification Petitions.
• Advertisement.
• Preliminary Explanations Necessary to Be First Read.
• Petition For Justice.
• Abridged Petition For Justice.
• More Abridged Petition For Justice.
• Supplement, Which May Be Added Or Not to Any One of the Three Or Any Other Proposed Petition.
• Petition For Codification.
• Lord Brougham Displayed: Including I. Boa Constrictor, Alias Helluo Curiarum; II. Observations On the Bankruptcy Court Bill, Now Ripened Into an Act; III. Extracts From Proposed Constitutional Code.

CHAPTER VII.

ADVICE FROM LINCOLN’S-INN.

§ 1.

This Letter, why introduced here.

Theauthority of the learned gentleman, who dates from Lincoln’s-Inn, stands upon a footing very different from that of his learned brother, who dates from the Temple:—a very different footing—and it must be confessed, a very inferior one. Both luminaries are indeed alike eclipsed by stars, such as * * * * *: and, by this common occultation, both are placed in the scale of authority thus far on the same level. But the Templar, whose “observations” are so “perfectly just,” is by this adoption become the child of, or rather quoad hoc one person with, the pre-eminently learned judge: to the purpose of the present inquiry, he is in effect Lord Chief Baron: while his learned brother on the other side of Fleet-street, less fortunate in the date of the application made to him, missed thereby the having been admitted to so much as a chance of so honourable an advantage.

Why then introduce him, or his letter, here? says a natural question, and by no means an irrelevant one. The answer is—because it is upon the evidence of this gentleman that the existence of the guinea-corps, and the notoriety of such its appellation, rest.

As to his title to credence—a remark that has been made already is—how improbable it is, that if a matter of fact, stated as notorious, were not really so, it should be mentioned as such by a professional man circumstanced as this gentleman appears to be. True it is, that from the mention made by him of this guinea-corps, a suspicion might arise, that feelings were harboured by him, heretical and rebellious as towards the powers that be: and that it was for the gratification of these wicked feelings that he had trumped up this story about the guinea-corps, that statement having in fact no truth in it.

But, for the clearing of his character, in which, so far as concerns evidentiary trust-worthiness, the character of this inquiry is, in some measure, involved, I feel it incumbent on me to show, which I shall do in proper place, that in his feelings—I mean, in the feelings manifested in this his letter when taken in all its parts—there is nothing that does not harmonise with the purest jurisprudential orthodoxy: which being the case, it would be an injury done not only to this argument, but to the reputation and prospects of the gentleman himself, whoever he may be, if any suspicion were left unremoved, of his having anything in common, but the formal place of date, with any such reprobate as the author of these pages.

Not but that in this busy age, in which reform, as in the days of Balak and Balaam, prophecy is become contagious, he too (I mean the learned and practising gentleman,) as will be seen, is a reformer. But then his plan of reform is (as will also be seen,) in the style of the Perceval school, a temperate one: meaning by temperate, a remedy which shall either leave the disease as it found it, or by the blessing of the Almighty! (meaning the almighty of the No-Popery worship) make it worse.

After the necessary preface follows the learned letter in hæc verba, with a few occasional elucidations by another hand.

§ 2.

The Letter, with Annotations.

TO SIR RICHARD PHILLIPS.

Lincoln’s-Inn, Sept. 1, 1808.

“Dear Sir,—

Inclosed you will receive the act relating to the summoning of juries on trials at Nisi Prius, and the three letters* with the perusal of which you have favoured me.

“In respect to the act itself, it appears to have been passed with the sole intention of relieving those who are liable to serve on juries, from the inconvenience which they were before subject to, from their constant liability to be summoned from term to term, without any consideration or respect paid to the labour of their previous attendances, and it is most clear that it did not originate in any jealousy† entertained that men so summoned and serving, would fail to act uprightly between the parties.‡

“Mr. * * * *, than whom no man can be better informed on the subject, is perfectly clear and correct in his observations,* and in his statement of the manner in which special juries are struck.”

“One circumstance ought to be attended to, which must remove all suspicion† on this subject: it is this, that special juries are struck under an order of the court only,‡ and the practice is for the opposite solicitors to strike out a name alternately until the list is reduced to the proper number, so that it must be the fault of the defendant’s own solicitor, if he does not obtain a respectable list∥ for the trial of the issue.”

“If any serious inconvenience were to arise from the present practice of striking and summoning special juries in Middlesex, I apprehend that it is the proper province of the courts above to interfere and introduce a reform, without the interference of the sheriff, who has, as Mr. * * * * states (and in this he is supported by the statute,) nothing further to do with striking of special juries than to attend with the freeholders’ book, to enable the parties before the proper officer to fix upon such as are to be returned for the trial of the cause, and named in the distringas.

“As under these circumstances the sheriff cannot, by any possibility, in my opinion, be subject to any penalty for summoning the jurors named in the distringas, although they may have before served within the time limited in the general act; I do not think that the objection which you have taken is deserving of your further attention; but if you think it otherwise, the proper mode of obtaining the opinion of the courts on the subject is that which is pointed out by Mr. * * * *

“There is one reform,* however, which I conceive to be wholly within the power of the sheriff,† and that is, to correct the freeholders’ list, by expunging the names of all such persons who, from low situations in life, have crept into a little independence, and, by artifice and collusion with the inferior officers, get their names placed upon the freeholders’ lists with the proper additions, with a view principally to their adding to that independence‡ by the fees payable for their serving on special juries: I know several of this description, who are ludicrously described as being deeply concerned and interested in the guinea-trade,∥ and a diligent scrutiny, with the assistance of the returning officers, might lead to this reform.

“I do not, under this last observation, mean to insinuate that even such characters acting upon oath are likely to do wrong,* or that they do not possess sufficient powers of discrimination to decide rightly; but I think that the special jury fees should be received only in the way of compensation for actual expenses and loss of time, and not as matters of profit.†

[* ]The three letters.] These must evidently have been the three letters above reprinted, in so many preceding chapters: viz. 1. The letter dated from the Temple; 2. Sheriff Sir Richard Phillips to the Lord Chief Baron; 3. The Lord Chief Baron’s answer to the said Sir Richard Phillips.

[† ]Most clear that it did not originate in any jealousy, &c.] Here we see the first of the evidences above alluded to, by which the purity and simplicity of these learned eyes stand demonstrated. Not only are they (as we shall see presently) inaccessible to any suspicion-exciting ray capable of being emitted from any other source, but, when the tendency of an act of parliament might be to excite any sort of suspicion capable of pointing itself towards the higher powers, they are inaccessible to the very first words of the act.

The act, I mean the earliest, the most efficient, and by far the longest, of the four or five acts which bear upon the subject (3 Geo. II. c. 25,) states, in the very first line of it, as the very cause of its enactment, “the evil practice used in corrupting of jurors;” and it is with these words before him (or why were they not before him?) that to this learned person “it is most clear that it did not originate in any jealousy entertained that men so summoned and serving, would fail to act uprightly between the parties.” No: the intention, “the sole intention of it,” is stated by him as being that of mitigating the sort of vexation which, the instant a perception arose that the breast of a gentleman stood exposed to it, made that deep impression, which we have already witnessed, on the feelings of the learned judge.

What is possible indeed is—that the act which at that moment lay before that gentleman was—not the very act above mentioned, but another of the next year; viz. that of 4 Geo. II. c. 7. But this last-mentioned statute, being but a patch put upon that other of the year preceding, is so indented into it, that to any one who had not taken the trouble to turn to the amended act, any self-satisfactory conception as the amending act would be plainly impossible.

By the act of the 7th Geo. II. c. 7, § 2, after reciting, that by the act 3 Geo. II. c. 25, it had been enacted, that “no persons shall be returned as jurors to serve on trials at Nisi Prius” “who have served within . . . . two years before . . . .in any . . . . county” except as excepted; and that “by reason of the frequent sessions of Nisi Prius in the . . . . King’s Bench, Common Pleas, and Exchequer at Westminster, the said provision cannot be put in execution in the county of Middlesex, but is found impracticable,”—it is (after this recital) enacted, “that the said recited clause . . . . shall not . . . . extend to the county of Middlesex.” Then, as to that county, it goes on and enacts, that “no person shall be returned to serve as a juror at any session of Nisi Prius in the county of Middlesex, who has been returned to serve as a juror at any such session of Nisi Prius in the said county, in the two terms or vacations next immediately preceding”—“under such penalty upon the sheriff, under-sheriff, bailiff, or other officer, employed or concerned in the summoning or returning of juries in . . . . Middlesex, as might have been inflicted on . . . . any of them for any offence against the said recited clauses.”

[‡ ]“Between the parties,”]—Note of Sir Richard Phillips to these words:—“It should be observed, that the persons who serve on special juries rather desire the employment than to be relieved from it, as they receive a guinea for every cause; and it is not about causes between individuals on which there can be any ground of jealousy. So far are special jurymen from seeking to be relieved, that, owing to the advantages derived from serving on them, I have received, since I have been sheriff, more than a hundred applicationsfrom respectable persons, who, under a mistaken notion that it was in my power, have wished me to place them on what they called the special jury list.

“R. P.”

[* ]Mr. * * * * is perfectly clear and correct in his observations.] Mr. * * * *; viz. the learned gentleman who dates from the Temple; and of whose learningwe have already made our profit: viz. in the last preceding chapter.

On that occasion, at the head of those observations of his which were so “perfectly just,” we saw the lawyer’s balance, for weighing the value of gentlemen’s time against the value of low people’s time: and, with the correctness of these scales, as well as with the several other observations from the same learned quarter, the learned inhabitant of Lincoln’s-Inn, is (we here see) no less “perfectly” satisfied than we have seen the pre-eminently learned judge.

Like causes produce like effects: he who sees one of these learned persons, sees another: he who sees Bavius sees Mævius. An observation to this effect has been made already: but the occasions for repeating it succeed one another without end.

[† ]One circumstance . . . . must remove all suspicion.] Remove it?—from what place? Not surely from any one of these learned bosoms, the door of which, as against all suspicions pointing upwards, remains of course for ever closed;—not from any such seat of imperturbable tranquillity, forasmuch as what is never in a place can never be removed out of it—but from bosoms actually labouring under the green-eyed malady, such as the bosom of this troublesome and meddling sheriff. But let us see what this remedy is, which, being swallowed, ought to operate as a specific against suspicion: viz. in a constitution actually labouring under, or at least predisposed to, the species of green-sickness above mentioned.

[‡ ]Special juries are struck under an order of court only.]—Add, the court never knowing any thing about the matter. The order (as we have seen) a mere scrap of spoilt and wasted paper:—a mere pretence for fee-catching:—a pretence, and that a false one. (See Part I. Chap. VI.) Of gold, not of post, is the powder, by which the malady of suspicion is so regularly removed out of, or rather expelled from, learned bosoms and learned eyes.

Alas! how different the ideas presented by the same object to unlearned ones. By the very document by which all suspicion had ever stood excluded from the learned bosom—by this very document it is that suspicion was not only planted, but rooted, in the unlearned one. By this so oppositely working document, what I do not mean is—the visibly existing, though in respect of its purport falsely pretended, not to say forged, order of court—what I do not mean is that too visible piece of mendacious and polluted paper:—what I do mean is the invisible order of the court—the neither visible, nor audible, nor yet the less perpetually standing, and intelligible, and efficient, and general order, continually issued by all the courts, to the master packers of their six or seven respective offices, requiring them to choose always proper persons, and never any other: viz. the secret members of the no longer secret list, which, as we have seen, stand indebted to the Lord Chief Baron probably for existence, avowedly for protection and defence.

Look to the Temple—look to Lincoln’s-Inn—look where you will—look to what part of the constitution you will,—everything is consistent you will find—everything is orthodox—among learned gentlemen.

The use of a jury is—to serve as a check to power—to power that would otherwise be arbitrary—in the hands of a judge. The use—or at least one use—of the House of Commons, is—to serve as a check to power—to power that would otherwise be arbitrary—in the hands of the crown. In the case of the sort of jury termed a special jury, symptoms of a sort of feveret were, by this learned gentleman, observed—observed but not confessed, to have been produced by suspicions, imputing to this kind of jury an habitual leaning towards the crown side in crown causes. For the removal of this complaint, a febrifuge of sovereign virtue and efficacy, having been discovered by him in the above-mentioned remedy, viz. an order of court, let us apply it—I mean in idea—(for the application of it in substance belongs to, and is with perfect regularity and efficacy performed by other hands) to the case of the House of Commons. “One circumstance (let us say) ought to be attended to, which must remove all suspicion on this subject: it is this; viz. that members ‘are struck,’ (chosen) under an order of court,” (viz. the court at St. James’s) “only.”

Now is not this—deny it who can—a most composing opiate?—a very specific against all political “ferments?” I mean, against all such as are liable to break out within doors;—and, if it be good in either of the two cases, can it be otherwise than good in the other? And, as to this our learned practitioner, notwithstanding what we have seen escaping from him about the guinea-corps, can any doubt be at present entertained to the prejudice of his orthodoxy? and, if he is not already an attorney-general, or a solicitor-general, or a master of the rolls, or at least a Welsh judge, is it not high time he should be?

[∥ ]Fault of defendant’s solicitor, if he does not obtain a respectable list.] Alas! what a smoke is here! But can so much as a puff be necessary to dispel it? Respectable? Yes: in one sense, at least, of any want of respectability there cannot be any fear; viz. of that sort of respectability which has office and guineas for its makers. Of that sort of respectability there is not among the candidates any absolute want, even before admission into the office: and this qualification, the guineas, if they did not find, would make. Here then is the respectability which not only does not stand in need of any exertion on the part of the defendant’s solicitor to obtain it, but which, spite of his utmost exertions to the contrary, will be sure to be obtained, and constantly obtained.

Impartiality—security against all influence—all corrupt influence—descending from above?—Is this the true English translation for the “respectability” of this so learned, and yet, or thence, so charitably thinking and confiding gentleman? Eight-and-forty persons, all named by, or under the influence of, the powers above, and the faculty of discarding no more than twelve of them a security by which, according to this learned gentleman’s necessitarian theory, “all suspicion,” viz. of any want of “respectability,”—of “respectability” (in this sense must we say?) “must be removed?”

Patients, 48:—and all 48 expected to be cured by a remedy which applies to no more than 12? Were the learned gentleman a physician, would this be his style of practice?

[* ]There is one reform, &c.] Reform? and from a bosom from which all suspicion that points upwards—all suspicion of the possibility of any need of reform—has been sentenced to be transported for life?

Gentle reader, patience. The reform is of the temperate kind—compose yourself. “Wholly in the sheriff’s power,” says the learned inventor and adviser of this reform. Wholly out of my power, (in the note we shall see to this same letter) says the sheriff: and so accordingly (as we have seen, and shall farther see) says the act.

With all his dispositions to find “perfectly correct” whatever came from above, or came recommended from above, it may be suspected of this learned gentleman, that he was—not completely in the secret. To the permanence, so decidedly approved and effectually protected by the learned judge, he sees not indeed the shadow of an objection: yet the sort of persons who, beyond all others, could be depended upon, not to say who alone could be depended upon, viz. for constancy of attendance, and for that obsequiousness without which constancy of attendance would have been of no use, these are the sort of persons whom so hardheartedly, as well as inconsistently, we see him thus devising plans for getting rid of: though, to be sure, if, while he was thus giving the advice, he knew it to be an advice that could not be pursued, as he must have done had he looked at the acts on which he grounded it, “the case is altered,” and both these imputations vanish.

As to the question just mentioned, between the sheriff and this his learned adviser, it stands thus:

The statute 3 Geo. II. c. 25, is the only one that has any bearing upon the subject: and, upon the ground of this statute, the matter stands thus:—

1. By § 17, “where any special jury shall be ordered by rule of any of the said courts to be struck by (here it is “by” not “before”) the proper officer of such court . . . . the sheriff . . . . shall be ordered by such rule to bring . . . . before such officer, the books or lists of persons qualified to serve on juries . . . . out of which juries ought to be returned by such sheriff . . . . in like manner as the freeholders’ book hath been usually ordered to be brought, in order to the striking of juries for trials at the bar . . . . and in every such case the jury shall be taken and struck out of such books or lists respectively.”

And in what manner, on the occasion thus alluded to, had the freeholders’ book been usually ordered to be brought for the purpose so alluded to? This is among the points, in relation to which the lawyers concerned in the putting together this piece of patchwork took care, according to the custom among lawyers, to leave us in the dark. For, as often as, by the cry of any part of the injured people, they have been forced to make a show of affording relief against this or that part of the system of judicial abuse, organized by, and for the benefit of, the judges, one of their maxims is—to leave the common, alias unwritten law of their own making, to form the groundwork, applying to it no more than here and there a patch of statute law: that thus the uncertainty, which forms the essential character of the groundwork, may spread itself over the patch.

2. In § 1 and 2 of this same act, directions had been given for the making up of “books” containing lists of persons qualified to be returned to serve on juries: and this without any distinction mentioned as between common and special juries. In that section (§ 17) by a reference made from it to these two former ones (§ 1 and 2,) nothing (it would seem) would have been more easy than to say—that the books, made up according to the direction given in these two sections (§ 1 and 2,) are the books here meant by “the books,” which here, for the purpose of nominating persons to serve on special juries, “ought to be returned by such sheriff.”

But, by an understanding among the lawyers within and without both houses, and the clerks within the same, and the speakers to whom belongs the nomination of the said clerks, matters have all along been settled in such sort, that, be the statute ever so long, it shall be impossible, otherwise than by words of vague description, to make any reference from any part of any statute to any part of the same or any other statute.

In the printed editions (it is true) we see each statute divided into sections, and each section numbered. But this is the work of the printer only, or his editor: and a man who, in the penning of any fresh statute, should, for the purpose of making a reference to any preceding statute, or part of the same statute, be unguarded enough to make use of any part of the numeration table in the description of such preceding statute, or part of a statute, would find himself overwhelmed, with expressions of rage and terror, excited by so fee-checking an innovation—rage and terror, covered by a mask of contempt, as if excited by the contemplation of his ignorance.

For, on the one hand, clerks being paid for copying, according to the multitude of statutes and the length of each, and the confusion thus organized in each producing a perpetually-increasing demand for more—lawyers, on the other hand, being, some of them, paid in like proportion for the drawing of statutes, and all of them having everything to gain by the confusion that pervades the substance of the several statutes, and the universal and perpetually-increasing uncertainty in which that confusion beholds its fruit—hence this rule, by which it is provided, that an act of parliament, let it of itself constitute ever so considerable a volume, shall, like the mathematician’s point, be a thing without parts, is a rule as sacred among these several learned and official persons, as any article in the 39 ever was to the most orthodox of the right reverend prelates that grace and sanctify the Upper House: and whoso should propose to abrogate it, would thereby become a worse than a popish or other ipso facto excommunicated convict—a malefactor ipso facto convicted of jacobinism.

In regard to this article, symptoms of heresy have now and then, it is true, been manifested in the Commons, in so high a quarter as the chair of the present Speaker: (See Speech of the Right Hon. Charles Abbott on Mr. Curwen’s Purity of Parliament Bill, in Cobbett’s Register for June 10, 1809; to which former manifestations of the like complexion might upon search be added:) but in this heresy there is so little of contagion, that the British Themis seems little more in danger of being healed of her habitual vertigo by this one hand, than the Church of Rome was of being purged of her errors by the Pope, who, about the middle of the last century had acquired, somehow or other, the surname of the Protestant Pope.

“The books or lists of persons qualified to serve on juries . . . . out of which,” according to § 17, “juries ought to be returned by such sheriff,” are they then the same books or lists, the manner of making up which is prescribed by the two first sections of this same act? Vague and incompetent as is the mode of description, it seems difficult to conceive how, if called upon to give, by his interpretation, an answer to this question, a judge could avoid answering it in the affirmative.

If so, what the sheriff, in his above-mentioned, and herein-after printed, note (p. 151,) on this part of the advice of his learned advisers, observes, in relation to this matter, is correct; viz. that it is not “in the power of the sheriff”—of any sheriff—to do that which by this his learned adviser this sheriff is advised to do, viz. “to correct the freeholders’ list by expunging . . . . names.” For, if the books, a description of which is given in the above-mentioned two first sections—and of which it appears that they are the only sort of books to which the appellation of “freeholders’ book,” employed in this 17th section, can apply—are really the books that, under this same 17th section, ought “to be brought before the said officer”—(to wit, the master packer of such office in such court)—to serve for the striking of special juries, these are books, of which, in § 2, it is provided, that they shall respectively be made by the “sheriff,” who “shall . . . . take care that the names of the persons contained in such duplicates shall be faithfully entered alphabetically . . . . in some book . . . . to be kept by him . . . . for that purpose.” “In such duplicates,” says the act: of which sort of instrument here called a duplicate, it is to the present purpose sufficient to observe, that it is an instrument of somebody else’s making, and not of his, viz. the sheriff’s: and whether, had Mr. Sheriff Phillips, in pursuance of the advice herein given to him by this his learned adviser, “expunged” any of the names contained in such duplicates, the “names . . . . contained in such duplicates” would have been “entered faithfully,” may be left to any man to pronounce.

A course, indeed, which might be taken without much difficulty—I mean, physical difficulty—is, after entering the names “faithfully,” to pursue the advice given by this learned adviser, and accordingly, either once for all, or toties quoties, to “expunge” names. But whether, after any such purification, or number of purifications performed, the book presented to the officer of the court—viz. the master packer—as and for the freeholders’ book, could with propriety be said to be the freeholders’ book, is another curious question, which howsoever curious, and to those who would be paid for playing their parts in the trial of it, an agreeable one, I would not be the man to advise any other man to cause to be tried at his expense. It is one of those questions, in respect of which it is difficult to conceive how, in case of its being tried, for example, on an indictment, a chief judge, in his endeavours to persuade either a jury, even though unpacked, or his fellow-judges, to decide—either for the king or for the defendant, whichsoever happened for the moment to find most favour in his sight—could experience any difficulty: and as for this our reforming sheriff, supposing him, in pursuance of this learned advice, to have become such defendant, what sort of favour he could reasonably expect at the hands of the learned judge who, in that case, would have the trying of him, may be left for him to imagine from the excursion which, in the case of Carr against Hood, was made not long after [Editor: illegible word] that same learned judge: viz. if not for the [Editor: illegible word] [Editor: illegible word] effect of giving him a sample of it in the character of a witness: always remembering that [Editor: illegible word] such purification, if performed with any degree of consistency and steadiness, the effect would be, as in his instance it had been the declared object, to make things better than well; and in so doing, to destroy not only the works, but the very principle, of that elegant art—that branch of the art of design—which exercises itself in the grouping of jurors:—an art, the planting and cultivation of which has already been affording so much occupation to the wisdom of ages.

The case is—that the statute in question, having, like most other statutes, been penned as above, for the express purpose of being misconceived, has, in pursuance of that purpose, been put into such a form and method, that both the learned adviser, and his official client and corrector, found it more easy and pleasant to speak from imagination than from the act.

It was the imagination of the learned adviser that presented him with the idea of its “being wholly within the power of the sheriff “to correct the list” in question, by “expunging names” out of it. It was the imagination of the sheriff that presented him with the idea, that “to make any alteration in the returns” is not merely “forbidden,” but “forbidden under a ‘penalty,’ and that a heavy one.”

As to the omission—and let us add, the expunction—of names, of the description in question; forbidden it may indeed be said to be, though in the rather indirect way we have just been seeing, viz. by requiring that the names of the persons contained in such duplicates be faithfully entered: but, to the offence of which this indirect description is given, no penalty is attached.

In the next section, it is true, viz. § 3, comes a clause, by which a penalty is appointed. But the offence to which this penalty is attached is—not that which consists in the leaving out of a list of the sort in question a name which ought to be in it, but the putting into it, or at least acting as if there had been put into it, a name which ought not to have been in it.

Then, as to the “heaviness” of the penalty, if the real and effective weight be here in question, viz. the weight of it as estimated by the quantity of money which the levying of it takes out of a man’s pocket—if this be what our sheriff had in view, very inadequate was (speaking with respect) the conception entertained by him, for the moment at least, of the real and effective weight of statute penalties. Of the penalty here in question, the minimum is no more than forty shillings, and the maximum but £10. But even this £10, if £10 it be, is not to be levied but “upon examination in a summary way” (§ 3,) in the manner herein intimated: in which case, at the expense of £10 at the utmost, he would have it in his power to exonerate himself of any further demand on this score: whereas had the penalty been no more than Is., to which in this case, he would hardly have given the denomination of a “heavy” one—this single shilling being to have been recovered in a regular way, I for my part would not be the man to save him harmless for ten times the maximum of £10—no, nor for a good deal more.

† What will be amusing enough—and (to any man in whose bosom the interests of mankind are wont to excite any warmer sympathy than the interest of Judge and Co.) consolatory, is—to observe the two traps set for the unlearned man, one by each of these his two learned advisers, and his unlearned good sense saving him from both.

To make “application to the court,” viz. in the only proper manner (learned gentlemen fee’d and so forth) but without any ground for it, is the learned advice given from the Temple.

To get himself indicted or informed against before Lord Ellenborough—(mark well, before Lord Ellenborough)—indicted for an attempt to commit a reform, viz. by cutting up the most valuable branch of the packing trade—indicted, and this with at least a plausible ground, say rather a good ground to build a conviction upon.

After all this learned advice, including the preeminently learned hint not to risk his reputation for “discretion,” by any such attempt as that of “making us better than well,” the unlearned person took a course which assuredly would not have been advised by any of the three, and laid bare the whole matter to the public eye.

And here we see matter not only of satisfaction, in respect of the escape made by the bird from the snares set for him by both fowlers, but of gratitude for the instructive song in which he has sung of it.

[† ]See note †, page 151.

[‡ ]With a view . . . . to . . . . their adding to that independence.] Receipt for adding to independence:—Solicit and solicit, till you have succeeded in getting into a situation of profit, out of which, without a moment’s warning, for anything or for nothing, you may be let drop at any time, without possibility of complaint, and without knowing why or wherefore.

What minister, or other man in power, is there, who, on the part of all sorts of men, whose functions are said and supposed to act as checks to his own, would not be content to see “independence” not only thus “added to,” but, if after such an addition there could be anything more to add to it, thus rendered complete? A system of this sort would be not less efficient (and how much more decent would it not be?) than the giving licence, by act of parliament, to all contracts whereby a member sells himself to a minister—licence and protection, on condition that the terma employed in them shall not be “express.”—(See the Perceval Parliamentary Purity Act, 49 Geo. III. c. 118, § 3.)

[∥ ]Deeply concerned and interested in the guinea-trude.] Imprudence—treachery—telling tales out of school—such are the reflections, which by a man, of more warmth and learning than candour or reflection, might be apt to be cast upon the disclosure thus made by our learned adviser. Against a load of imputation, which, though to a first glance not altogether without colour, will on an impartial examination be seen to be not more serious than groundless, it would be ungenerous at least, if not unjust, to leave him altogether without defence. If of the appellation (guinea-man) and of the habits and dispositions which it imports, the existence were really notorious—notorious in any such degree as that in which he understood them so to be—on this supposition, to have kept them from the knowledge of a sheriff, and especially so active and inquisitive a sheriff, and one to whom, in less than a twelvemonth, the number of applications made for situations in this very corps amounted to above a hundred (Phillips. p. 173,) would have been altogether hopeless: while, by the frankness of the communication, all suspicion of wishing to throw a veil over the practice was, in the most promising at least, if not altogether effectual manner, obviated.

Between judges, master packers, and guineamen, all suspicion of anything like an understanding was, in this refined and indirect way, much more effectually repelled, than it could have been by any direct arguments: since, of any such arguments, the effect would have been, in the first place, to bring forward an idea, which could not be too carefully kept out of sight; viz. the idea of a state of things, the existence of which would, if once made matter of argument, be much more likely to be confirmed by it than disproved.

Against reform in every line, it begins to be discovered, that much more effectual war may sometimes be carried on by adoption, than by open opposition. In a very high place, indeed, go almost when you will, you may hear the abuses of the law not only acknowledged, but inveighed against:—just as if anything but will were wanting to the removal of them;—just as if in the whole world of law there were any one thing of which the learned orator had any tolerably clear conception, except the value of those same abuses;—just as if the most mischievous of those abuses were not the food on which himself, and his closest connexions have grown so fat upon;—just as if they were not dearer to him than the apple of his eye.

[* ]Likely to do wrong] The faith of this learned person in the virtue of an oath is truly edifying. Unsanctified by this principle of sanctification, the probity of these guinea-traders does unquestionably not appear to have been set by him at a very high rate: give them an oath to swallow, every impure property is, by this consecrated vehicle, carried off. Note, that the oath by which the swallower is rendered thus unlikely “to do wrong,” is the very oath which, as often as any difference of opinion has place among the elect twelve, is regularly productive of perjury—of perjury on the part of some portion of the number from one to eleven inclusive: I say of perjury; unless it be supposed, that, by that terror of inevitable and insupportable torture by which the will is subdued, the understanding is enlightened and converted; and that of him whose power of endurance is the weakest, the conviction and conversion is regularly and proportionably the most sincere. An oath “preservative against corruption!”—an oath composed of vague and unbinding generalities, such as those of which such effectual care has regularly been taken that it shall be composed!

Alas! by what fatality did so simple an expedient escape the piously scrupulous and learned mind, that has the royal conscience in its keeping—so cheap a defence of nations against corruption—as the advising his Majesty to give to the department of the commander in chief the benefit of a pledge of purity, correspondent to that by which, in the judicial department, the difficulty of “doing wrong” has been rendered thus extreme! “The person whom you shall nominate to an office within your department shall, in every instance, be, in every respect, the person the best qualified for the filling of that office—So help you God!” With such a security, the child in leading-strings might have been trusted with a commission as safely as his father, and the wiles of Mrs. Clarke would have had no more power over the virtue of the commander in chief, than those of Dalilah had over Samson before his hair was cropt.

[† ]Not as matters of profit.] The severity of the learned gentleman’s virtue has, upon this occasion, displayed itself in an opinion, which it is somewhat easier to admire than to understand. That a declaration, to the effect in question, should be incorporated into the purity-securing oath?—is that what he means to recommend? “I A. B. (for example) “do declare, that the guinea just received by me has been and is ‘received only in the way of compensation for actual expenses and loss of time, and not as a matter of profit. So help me God!” Or if duly construed and put into a tangible shape, would the proposed security be found to amount, for example, to something to this effect? viz. that on a motion, regularly made by some learned gentleman, opposable or unopposable by learned gentlemen on the other side, a rule should, if the court think fit, be with equal regularity made, ordering that “an account be taken by the master of the actual expenses incurred by each special juryman, viz. in the shape of chaise hire, and subsistence upon the road, as also of the compensation due to him for loss of time; with a direction to allow out of the guinea (being the greatest sum allowed by the act) no greater sum than shall be sufficient to cover such actual expenses, together with such due compensation as aforesaid:—costs of the application to await the master’s report.”

The latter I give as being more particularly in unison with the general spirit and tendency of such amendments of the law as are to be found in the statute book, made at the suggestion, or in conformity to the advice, of the gentlemen of the long robe. But as to this opinion in particular, whether it be in legal religion, as in the first case, or in legal practice, as in the last case, that the truest interpretation is to be sought for it, must be left for the reader to determine.

[* ]There is one reform, &c.] Reform? and from a bosom from which all suspicion that points upwards—all suspicion of the possibility of any need of reform—has been sentenced to be transported for life?

Gentle reader, patience. The reform is of the temperate kind—compose yourself. “Wholly in the sheriff’s power,” says the learned inventor and adviser of this reform. Wholly out of my power, (in the note we shall see to this same letter) says the sheriff: and so accordingly (as we have seen, and shall farther see) says the act.

With all his dispositions to find “perfectly correct” whatever came from above, or came recommended from above, it may be suspected of this learned gentleman, that he was—not completely in the secret. To the permanence, so decidedly approved and effectually protected by the learned judge, he sees not indeed the shadow of an objection: yet the sort of persons who, beyond all others, could be depended upon, not to say who alone could be depended upon, viz. for constancy of attendance, and for that obsequiousness without which constancy of attendance would have been of no use, these are the sort of persons whom so hardheartedly, as well as inconsistently, we see him thus devising plans for getting rid of: though, to be sure, if, while he was thus giving the advice, he knew it to be an advice that could not be pursued, as he must have done had he looked at the acts on which he grounded it, “the case is altered,” and both these imputations vanish.

As to the question just mentioned, between the sheriff and this his learned adviser, it stands thus:

The statute 3 Geo. II. c. 25, is the only one that has any bearing upon the subject: and, upon the ground of this statute, the matter stands thus:—

1. By § 17, “where any special jury shall be ordered by rule of any of the said courts to be struck by (here it is “by” not “before”) the proper officer of such court . . . . the sheriff . . . . shall be ordered by such rule to bring . . . . before such officer, the books or lists of persons qualified to serve on juries . . . . out of which juries ought to be returned by such sheriff . . . . in like manner as the freeholders’ book hath been usually ordered to be brought, in order to the striking of juries for trials at the bar . . . . and in every such case the jury shall be taken and struck out of such books or lists respectively.”

And in what manner, on the occasion thus alluded to, had the freeholders’ book been usually ordered to be brought for the purpose so alluded to? This is among the points, in relation to which the lawyers concerned in the putting together this piece of patchwork took care, according to the custom among lawyers, to leave us in the dark. For, as often as, by the cry of any part of the injured people, they have been forced to make a show of affording relief against this or that part of the system of judicial abuse, organized by, and for the benefit of, the judges, one of their maxims is—to leave the common, alias unwritten law of their own making, to form the groundwork, applying to it no more than here and there a patch of statute law: that thus the uncertainty, which forms the essential character of the groundwork, may spread itself over the patch.

2. In § 1 and 2 of this same act, directions had been given for the making up of “books” containing lists of persons qualified to be returned to serve on juries: and this without any distinction mentioned as between common and special juries. In that section (§ 17) by a reference made from it to these two former ones (§ 1 and 2,) nothing (it would seem) would have been more easy than to say—that the books, made up according to the direction given in these two sections (§ 1 and 2,) are the books here meant by “the books,” which here, for the purpose of nominating persons to serve on special juries, “ought to be returned by such sheriff.”

But, by an understanding among the lawyers within and without both houses, and the clerks within the same, and the speakers to whom belongs the nomination of the said clerks, matters have all along been settled in such sort, that, be the statute ever so long, it shall be impossible, otherwise than by words of vague description, to make any reference from any part of any statute to any part of the same or any other statute.

In the printed editions (it is true) we see each statute divided into sections, and each section numbered. But this is the work of the printer only, or his editor: and a man who, in the penning of any fresh statute, should, for the purpose of making a reference to any preceding statute, or part of the same statute, be unguarded enough to make use of any part of the numeration table in the description of such preceding statute, or part of a statute, would find himself overwhelmed, with expressions of rage and terror, excited by so fee-checking an innovation—rage and terror, covered by a mask of contempt, as if excited by the contemplation of his ignorance.

For, on the one hand, clerks being paid for copying, according to the multitude of statutes and the length of each, and the confusion thus organized in each producing a perpetually-increasing demand for more—lawyers, on the other hand, being, some of them, paid in like proportion for the drawing of statutes, and all of them having everything to gain by the confusion that pervades the substance of the several statutes, and the universal and perpetually-increasing uncertainty in which that confusion beholds its fruit—hence this rule, by which it is provided, that an act of parliament, let it of itself constitute ever so considerable a volume, shall, like the mathematician’s point, be a thing without parts, is a rule as sacred among these several learned and official persons, as any article in the 39 ever was to the most orthodox of the right reverend prelates that grace and sanctify the Upper House: and whoso should propose to abrogate it, would thereby become a worse than a popish or other ipso facto excommunicated convict—a malefactor ipso facto convicted of jacobinism.

In regard to this article, symptoms of heresy have now and then, it is true, been manifested in the Commons, in so high a quarter as the chair of the present Speaker: (See Speech of the Right Hon. Charles Abbott on Mr. Curwen’s Purity of Parliament Bill, in Cobbett’s Register for June 10, 1809; to which former manifestations of the like complexion might upon search be added:) but in this heresy there is so little of contagion, that the British Themis seems little more in danger of being healed of her habitual vertigo by this one hand, than the Church of Rome was of being purged of her errors by the Pope, who, about the middle of the last century had acquired, somehow or other, the surname of the Protestant Pope.

“The books or lists of persons qualified to serve on juries . . . . out of which,” according to § 17, “juries ought to be returned by such sheriff,” are they then the same books or lists, the manner of making up which is prescribed by the two first sections of this same act? Vague and incompetent as is the mode of description, it seems difficult to conceive how, if called upon to give, by his interpretation, an answer to this question, a judge could avoid answering it in the affirmative.

If so, what the sheriff, in his above-mentioned, and herein-after printed, note (p. 151,) on this part of the advice of his learned advisers, observes, in relation to this matter, is correct; viz. that it is not “in the power of the sheriff”—of any sheriff—to do that which by this his learned adviser this sheriff is advised to do, viz. “to correct the freeholders’ list by expunging . . . . names.” For, if the books, a description of which is given in the above-mentioned two first sections—and of which it appears that they are the only sort of books to which the appellation of “freeholders’ book,” employed in this 17th section, can apply—are really the books that, under this same 17th section, ought “to be brought before the said officer”—(to wit, the master packer of such office in such court)—to serve for the striking of special juries, these are books, of which, in § 2, it is provided, that they shall respectively be made by the “sheriff,” who “shall . . . . take care that the names of the persons contained in such duplicates shall be faithfully entered alphabetically . . . . in some book . . . . to be kept by him . . . . for that purpose.” “In such duplicates,” says the act: of which sort of instrument here called a duplicate, it is to the present purpose sufficient to observe, that it is an instrument of somebody else’s making, and not of his, viz. the sheriff’s: and whether, had Mr. Sheriff Phillips, in pursuance of the advice herein given to him by this his learned adviser, “expunged” any of the names contained in such duplicates, the “names . . . . contained in such duplicates” would have been “entered faithfully,” may be left to any man to pronounce.

A course, indeed, which might be taken without much difficulty—I mean, physical difficulty—is, after entering the names “faithfully,” to pursue the advice given by this learned adviser, and accordingly, either once for all, or toties quoties, to “expunge” names. But whether, after any such purification, or number of purifications performed, the book presented to the officer of the court—viz. the master packer—as and for the freeholders’ book, could with propriety be said to be the freeholders’ book, is another curious question, which howsoever curious, and to those who would be paid for playing their parts in the trial of it, an agreeable one, I would not be the man to advise any other man to cause to be tried at his expense. It is one of those questions, in respect of which it is difficult to conceive how, in case of its being tried, for example, on an indictment, a chief judge, in his endeavours to persuade either a jury, even though unpacked, or his fellow-judges, to decide—either for the king or for the defendant, whichsoever happened for the moment to find most favour in his sight—could experience any difficulty: and as for this our reforming sheriff, supposing him, in pursuance of this learned advice, to have become such defendant, what sort of favour he could reasonably expect at the hands of the learned judge who, in that case, would have the trying of him, may be left for him to imagine from the excursion which, in the case of Carr against Hood, was made not long after [Editor: illegible word] that same learned judge: viz. if not for the [Editor: illegible word] [Editor: illegible word] effect of giving him a sample of it in the character of a witness: always remembering that [Editor: illegible word] such purification, if performed with any degree of consistency and steadiness, the effect would be, as in his instance it had been the declared object, to make things better than well; and in so doing, to destroy not only the works, but the very principle, of that elegant art—that branch of the art of design—which exercises itself in the grouping of jurors:—an art, the planting and cultivation of which has already been affording so much occupation to the wisdom of ages.

The case is—that the statute in question, having, like most other statutes, been penned as above, for the express purpose of being misconceived, has, in pursuance of that purpose, been put into such a form and method, that both the learned adviser, and his official client and corrector, found it more easy and pleasant to speak from imagination than from the act.

It was the imagination of the learned adviser that presented him with the idea of its “being wholly within the power of the sheriff “to correct the list” in question, by “expunging names” out of it. It was the imagination of the sheriff that presented him with the idea, that “to make any alteration in the returns” is not merely “forbidden,” but “forbidden under a ‘penalty,’ and that a heavy one.”

As to the omission—and let us add, the expunction—of names, of the description in question; forbidden it may indeed be said to be, though in the rather indirect way we have just been seeing, viz. by requiring that the names of the persons contained in such duplicates be faithfully entered: but, to the offence of which this indirect description is given, no penalty is attached.

In the next section, it is true, viz. § 3, comes a clause, by which a penalty is appointed. But the offence to which this penalty is attached is—not that which consists in the leaving out of a list of the sort in question a name which ought to be in it, but the putting into it, or at least acting as if there had been put into it, a name which ought not to have been in it.

Then, as to the “heaviness” of the penalty, if the real and effective weight be here in question, viz. the weight of it as estimated by the quantity of money which the levying of it takes out of a man’s pocket—if this be what our sheriff had in view, very inadequate was (speaking with respect) the conception entertained by him, for the moment at least, of the real and effective weight of statute penalties. Of the penalty here in question, the minimum is no more than forty shillings, and the maximum but £10. But even this £10, if £10 it be, is not to be levied but “upon examination in a summary way” (§ 3,) in the manner herein intimated: in which case, at the expense of £10 at the utmost, he would have it in his power to exonerate himself of any further demand on this score: whereas had the penalty been no more than Is., to which in this case, he would hardly have given the denomination of a “heavy” one—this single shilling being to have been recovered in a regular way, I for my part would not be the man to save him harmless for ten times the maximum of £10—no, nor for a good deal more.

† What will be amusing enough—and (to any man in whose bosom the interests of mankind are wont to excite any warmer sympathy than the interest of Judge and Co.) consolatory, is—to observe the two traps set for the unlearned man, one by each of these his two learned advisers, and his unlearned good sense saving him from both.

To make “application to the court,” viz. in the only proper manner (learned gentlemen fee’d and so forth) but without any ground for it, is the learned advice given from the Temple.

To get himself indicted or informed against before Lord Ellenborough—(mark well, before Lord Ellenborough)—indicted for an attempt to commit a reform, viz. by cutting up the most valuable branch of the packing trade—indicted, and this with at least a plausible ground, say rather a good ground to build a conviction upon.

After all this learned advice, including the preeminently learned hint not to risk his reputation for “discretion,” by any such attempt as that of “making us better than well,” the unlearned person took a course which assuredly would not have been advised by any of the three, and laid bare the whole matter to the public eye.

And here we see matter not only of satisfaction, in respect of the escape made by the bird from the snares set for him by both fowlers, but of gratitude for the instructive song in which he has sung of it.

[† ]“Power of the sheriff.”] Note of Sir Richard Phillips to these words:—“This is not in the power of the sheriff, who is forbidden to make any alteration in the returns, under a heavy penalty. “R. P.”