The Online Library of Liberty

A project of Liberty Fund, Inc.

• Book I.
• Preface.
• Introduction.
• Chapter I.: General Division of the Aggregate Body of the Law.
• Chapter II.: Constitutional Law.
• Chapter III.: Civil Or Distributive Law. *
• Chapter IV.: Penal Law.
• Chapter V.: Procedure Law. †
• Chapter VI.: Financial Law.
• Chapter VII.: Prescriptions Or Bearings of the Other Codes Or Branches of Law, to the Constitutional Code.
• Chapter VIII.: Public-opinion Tribunal.
• Chapter IX.: Good Rule and Bad Rule.
• Chapter X.: Corruption.
• Chapter XI.: Delusion.
• Chapter XII.: Fiction.
• Chapter XIII.: Factitious Honour.
• Chapter XIV.: Established Religion—none.
• Chapter XV.: Supreme Constitutive.
• Chapter XVI.: Supreme Legislative.
• Chapter XVII.: Supreme Operative.
• Book II.
• Preface to the Original Edition of Book II.
• Chapter I.: Territory of This State, Name, Situation, Boundaries, Divisions.
• Chapter II.: Ends and Means.
• Chapter III.: Sovereignty, In Whom. *
• Chapter IV.: Authorities.
• Chapter V.: Constitutive Authority. *
• Chapter VI.: Legislature.
• Chapter VII.: Legislator’s Inaugural Declaration. *
• Chapter VIII.: Prime Minister.
• Chapter IX.: Ministers Collectively.
• Chapter X.: Defensive Force.
• Chapter XI.: Ministers Severally.
• Chapter XII.
• Chapter XIII.
• Chapter XV.
• Chapter XVI.: Quasi-jury.
• Chapter XVII.
• Chapter XVIII.
• Chapter XIX.: Government Advocate General.
• Chapter XX.: Eleemosynary Advocates.
• Chapter XXI.
• Chapter XXII.
• Chapter XXIII.
• Chapter XXIV.
• Chapter XXV.
• Chapter XXVI. *
• Chapter XXVII.
• Chapter XXVIII.
• Chapter XXIX.
• Chapter XXX.
• Chapter XXXI.
• Appendix.
• No. I.
• No. II.
• No. III.
• No. IV.
• No. V.
• No. VI.
• No. VII.
• No. VIII.

CHAPTER XVI.

QUASI-JURY.

General Preliminary Observations.

Being, in its leading features, different from every mode of Judicature as yet in use, in which men without appropriate experience are admitted into any share of judicial power, it became matter of necessity to employ for the designation of it a new and appropriate name. Having then in common with the Jury system, this characteristic feature, the word Jury is accordingly employed in the composition of it. But the powers allotted to the body thus designated, being different in several, and these very material, respects, from those allotted to any body of functionaries as yet designated by the name of a Jury, the Latin adverb Quasi, is employed for the purpose of giving advertisement of the difference.

In the framing of this part of the Code, as of every other, submission to the ends of Justice (as herein all along designated) has been the only guide; usage being no otherwise referred to, or employed, than as a source of evidence; evidence to wit, of the beneficial effects of such parts of the practice, in relation to the subject matter in question, as have been found beneficial in their character and tendency; and of the pernicious effects of such parts as have exhibited marks of an opposite nature and tendency.

For this purpose, with the ends of Justice for constant guide, the institution of a Jury in all its several forms, has been the subject of constant scrutiny. Taking these ends in the manner that re-agents are employed in chemistry, the endeavour has been all along to effect, between good and bad, a clear separation: to put aside the bad, to preserve the good for use; adding to it, such new and ulterior elements as the contemplation of those same ends, has, on the several occasions, been able to suggest.

Compared with the power of a Jury in the English style, the power of a Quasi-Jury, will, in respect of effective force, be found much narrowed. On the other hand, in respect of extent over the field of law and legislation, much enlarged; rendered in a word, co-extensive throughout with that of the judicial power itself.

Antecedently to entering into particulars, the reason why the power of this body of functionaries is, comparatively speaking, rendered thus narrowed is, that the demand for it, which under the English Government is so urgent, has in the Constitution delineated in the present Code no place. In the English form of Government, the medium in which Judges, as well as almost all other functionaries, live and move and have their being, is an atmosphere of corruption: the Judges are, in effect, dependent creatures of the Monarch, whose interest is so completely hostile to that of the people; and at the same time, in regard to responsibility, as well in respect of dislocability as punibility, virtually, essentially, and according to all experience, irresponsible.

The rule of action having for its makers, in all its parts, a set of men, whose interest is, in every branch of it, in a state of correspondent hostility to the people, one great, and perhaps the principal use, and good effect of the institution, consists in what it does towards rendering of no effect, every part to which it applies itself, in the body of the Laws. In a word, to undo what legislators and lawyers have done, is the great use of Juries.

In so far as what is done, by those highest constituted authorities, is right—conducive to the greatest happiness of the greatest number,—the institution of a Jury cannot but be prejudicial,—detractive from the sum of that same greatest happiness.

I. The apt features observed in the Jury system, and, on that account, retained under the Quasi-Jury system, may be thus enumerated:

1. The general end in view, namely, the applying limits and checks to the power of the Judge.

2. The degree of publicity which is in fact attached to the Jury system, and which with or without design has spread to other suits, in which no such body of unprofessional Judges is called in.

3. The sort of obligation, which, in virtue of the obligatory powers given to the Jury over the result of the cause, the Judge finds himself subjected to—namely, the obligation of giving to the Jury, and thence to the public at large, explanation and reasons, having for their object and tendency, the rendering the nature of the case clearer to the public as well as them, than it would be otherwise: the affording such grounds as can be found for such decision as, avowedly or unavowedly, it is his desire they should adopt, and thus rendering it more difficult, than without such explanation and reasons, for a Judge to pronounce, or cause to be pronounced, a decision palpably unjust and indefensible.

4. The effect which it has had in relation to evidence; causing it to be exhibited in a better shape, than any in which it is generally exhibited in a Judicatory into which no such body of ephemeral Judges is introduced.

II. The unapt features observed in the Jury system, and from the Quasi-Jury system on that account discarded, may be thus enumerated.

i. Evils correspondent and opposite to the direct ends of justice.

1. The corruptness of the situation of the persons locating in this case. The functionaries by whom these alleged and supposed intended limitators of the powers of the Judges are located, are the Sheriffs of Counties, or other functionaries alike exposed to Monarchical influence; to the naturally irresistible influence of that same all-ruling functionary, by whose influence over the Judge, the chief reason is afforded for the endeavour to apply this, or any other check to his power.

In virtue of this origin, a Jury comes into existence, with a principle of corruption involved in its essence.

2. The solemn promise forced upon the members of this body, coupled with a compulsory declaration of unanimity, which declaration is, in frequent instances, unavoidably and necessarily false.

3. The pernicious use made on this occasion of the religious sanction, the force of which has, in practice, been sought to be added on this occasion to the other sanctions.

4. The arbitrary power, given over the result of the cause, to a set of men, who by their situation, are demonstrated to be in comparison of the Judge, (the authority with which theirs antagonizes,) in respect of appropriate knowledge, judgment and active aptitude, palpably inferior; while by means of the habit of perjury forced upon them as above, sensibility to the force of the bridle, supposed to be applied by the several sanctions in question, cannot but be diminished.

5. The circumstances by which the tutelary power of the Public-Opinion Tribunal is in great measure prevented from bearing upon their minds. These are—1. The secrecy in which the deportment and discourse of every one of them, (while in the state of confinement in which they are kept, upon their retiring for the purpose of discussion,) is involved: a circumstance by which in respect of everything which belongs to that same deportment and discourse, their responsibility to that tribunal is nearly done away. 2. The magnitude of their number by which, in respect of the aptitude of the conjunct decision, the sense of responsibility is so much weakened on the part of each.

6. The scantiness of the application, made of this supposed instrument of control, with reference to the power of the Judge; the non-application of it to more than one out of many spots, in the field of Judicature; and the non-application of it, to any more than one out of all the stages through which any suit is liable to be carried.

If to the pernicious effects of this incongruity, there be any circumstance of alleviation, it must be to be looked for in those circumstances by which, as above, its utility—its contributoriness to the ends of justice, is so much reduced. But where, in those suits and stages, this institution (how unapt soever) has no place, the opposition of the system of procedure to the ends of justice, is still stronger and more mischievous.

ii. Evils correspondent and opposite to the collateral ends of justice: maximization of expense of justice, in the shape of delay, vexation, and pecuniary expense.

1. Needless quantity of vexation, or expense, or both, produced by the multitude of the actually serving Jurymen, in each suit.

2. Much greater vexation and expense, produced by the still greater multitude of the obligatorily attending Jurymen, out of whom, in each suit, the actually serving are drawn.

3. The vexation, and expense, and mischievous complication, produced by the operation called challenging; an operation, the object of which is, to keep excluded out of the actually serving list of Jurymen, such number as are, on one side or other, suspected of partiality in favour of the respective adversaries.

4. Vexation attendant on the state of confinement and suffering, to which, in case of disagreement, the whole twelve are kept involved: to confinement which has for its avowed object the compelling them, in an unknown number, to make a false declaration, and violate that solemn engagement on which their efficiency is supposed to depend.

III. Feature, beneficial under the Government under which the Jury institution originated; prejudicial under the Government here proposed; therefore hence discarded.

This feature is the weakness which, by means of some of the above-mentioned features, this portion of the adjective branch of law, keeps infused in certain portions of the corresponding substantive branch: namely, those which have for their object the maximization of the power of the few, at the expense of the security of the many.

IV. Features, supposed apt, which not being found in the Jury system, are here in the Quasi-Jury system, introduced.

1. Division of every Quasi-Jury into two sections: 1. the more erudite; 2. the more popular: the more popular, the more numerous: thence, in case of disagreement, the will of those who belong to the more numerous section, may preponderate over the will of those who belong to the less numerous section; those who belong to the more erudite section are introduced, in order that, by the influence of understanding over understanding, those who may be presumed to excel in intellectual aptitude, may guide those in whose instance, appropriate moral aptitude is more probable, in so far as they think it proper to be so guided.

2. Allotting to the Quasi-Jury by law, in express terms, and thence with surer, more comprehensive, and more constant effect, than has place in the case of a Jury, the several functions herein designated, by the several adjuncts, auditive, interrogative, and opinative or censorial.

3. Stating, in express terms, the nature of the explanations expected at the hands of the Judge, for the use of the Quasi-Jury, as also for the use of the members of the Public-Opinion Tribunal.

4. Ordaining the registration of the discourses of the Quasi-Jurymen, as well as those of the Judge, namely, for the purpose of subjecting to responsibility those assessors of the Judge, in case of unapt discourse on their part; and also the Judge himself, in case of disregard shown to their discourse, when its title to regard shall appear unimpeachable.

5. Into the Register, admission secured to any alterations proposed by the Quasi-Jury or any member of it, in the terms of the decision delivered by the Judge; yet so as the Judge shall remain at liberty to pay what regard to it he thinks proper; remaining thus with his responsibility undiminished, the proposed amendment going up of course to the Judge Appellate, for his adoption, rejection, or modification.

6. Power to the Quasi-Jury, at the instance of a party, to send up to the Judge Appellate the decision of the Judge, for confirmation or alteration, in a class of penal cases in which appeal is not allowed, where a Quasi-Jury is called in; cases in which, from the assured multitude of groundless appeals, it would otherwise be productive of preponderant evil, by useless vexation to parties injured and Quasi-Jurors.

7. Power to the Quasi-Jury, to allow to the pursuer, the faculty of appealing as well from a judgment of acquittal as from a judgment of conviction.

8. Power to the Quasi-Jury, to allow to a pursuer, in case of conviction, the faculty of appealing against the sentence, on the ground of deficiency, as well as to a defendant on the ground of excess, in the quantum of the punishment.

9. Power to the Quasi-Jury to call in the assistance of the Government Advocate, or the Eleemosynary Advocate, at their option, to assist in the wording of the amendment proposed by them, to the judgment, or the sentence of the Judge, as per No. 5.

10. Pay.—Provision made of regular pay, for indemnity to those, whose pecuniary circumstances would otherwise render the service of the public in this department, an intolerable hardship. The quantum is such as will render the compensation adequate to the majority of the whole number of the members of the community. To render it adequate in the case of the few, would render the correspondent burthen, intolerable to the many.

As to the erudite section, such pay as could be afforded, would be no adequate compensation; the distinction attached to their situation, will be of more value in their eyes, than any pecuniary compensation.

Section I.

Fields of Service.

Expositive.

Art. 1. By a Quasi-Jury, understand an ever-changing body of Assessors, convened from the body of the people, for the purpose of serving by the exercise given to their functions in the character of checks applied to the power, which but for these and other checks as per Ch. xii. Judiciary collectively, would be arbitrary, in the hands of permanent Judges.

Enactive.

Art. 2. Attached to every Judicatory, whether Immediate or Appellate, is a Quasi-Jury; co-extensive with that of the Judge is its local field of service.

Enactive.

Art. 3. So, with the exceptions in this section expressed, is its logical field of service.

Enactive. Expositive.

Art. 4. The occasions for its service, are of two sorts—principal, and incidental. The principal occasions are those on which the Recapitulatory Inquiry, or say Recapitulatory Examination, otherwise called the Quasi-Trial, is performed: for the incidental, see Art. 15.

Enactive. Expositive.

Art. 5. The Recapitulatory Examination supposes the anterior existence of a different one—call this anterior, the Original Inquiry, or say Original Examination: if all persons concerned are satisfied with the result of it, no recapitulatory examination has place, it is the only one. It is conducted by the Judge, his alone being the imperative function: the Quasi-Jurors sharing with him in the exercise of the other elementary judicial functions, as to which, see Ch. xii. Judiciary collectively, Section 9.

Enactive. Expositive.

Art. 6. The Recapitulatory Examination is performed by the re-exhibition, re-consideration, and if from sources more than one, confrontation and comparison, of all evidence delivered on the Original Examination: with or without evidence, which on the original inquiry, was not, whether it could, or could not be, adduced.

Enactive.

Art. 7. The Judge has power to perform a Recapitulatory Examination of his own motion, for the satisfaction of the public, or of his own conscience: he is bound to do so, on petition presented by a party on either side: security for eventual compensation for the delay, vexation, and expense, being found by the applicant as per Procedure Code, Ch. xxvii.

Enactive.

Art. 8. When it is of his own motion, he pronounces not any definitive decree, till after the Quasi-trial has been performed: when on petition, decrees such as but for such petition will be definitive—say eventually definitive decrees, are pronounced by him, and to these decrees the petition has reference.

Enactive.

Art. 9. When on petition, it is in this wise;—the Judge’s eventually definitive decrees having been pronounced, he addresses himself to the parties thus: “Is it the desire of any one of you that there should be a recapitulatory examination?” If by any one, answer be given in the affirmative, a day and hour for the purpose is appointed by him, after hearing that which they respectively have to say as to the time.

Enactive.

Art. 10. In case of necessity, the Recapitulatory Examination is carried on through any number of sittings. But, unless for obviating some casual and pressing inconvenience, no adjournment from one sitting to another has place, until the regularly employable quantity of time has been exhausted, without the suit’s being ripe for the definitive decrees: saving at all times to the Judge, the power of continuing the sitting indefinitely, to prevent the breaking the thread of the inquiry to the detriment of justice.

Enactive. Instructional.

Art. 11. Should it ever so happen, that by the number of sittings expended, before the suit is ripe for decision, the regular length of service, appointed for a set of Quasi-Jurors, as per Section 6, has been exhausted,—they must be detained for whatsoever further number of days is necessary, unless, by consent of parties, matters can be so ordered, as that a decision, on this or that point, shall have been made with the aid of that one Quasi-Jury, the decision on what remains of the matter of the suit, being reserved for another Quasi-Jury.

Note that facts in such sort independent one of another, may for proof or disproof, without preponderant prejudice to right decision, be allotted each to a different Jury: and accordingly such distribution may in any suit be made.

Enactive.

Art. 12. Exceptions excepted, at the Recapitulatory Examination, no evidence is exhibited that was not exhibited at the Original Examination: if, of any part so exhibited, deperition, actual or virtual, has had place, supply to the deficiency is made from the minutes: and with consent of parties, the re-exhibition of any article of evidence may be omitted.

Enactive.

Art. 13. Exceptions are,

1. Where, since the issuing of the eventually definitive decree, appointing the Quasi-trial, evidence has been discovered, the existence of which was not at that time known. In this case, however, to warrant the admission of it, timely information in relation to it must have been afforded: in default of which it may be either rejected, or referred for re-examination, by the same, or another Jury, at another time.

2. Where, in consideration of the length of time that must elapse before the pieces of evidence in question can be obtained, the elicitation of it is thus deferred.

Enactive.

Art. 14. The subject matter appointed for Quasi-trial may be—matter of fact alone, or matter of law alone, or both together.

Enactive. Expositive.

Art. 15. The incidental occasions, on which a hearing before a Quasi-Jury may have place, are those on which, antecedently or even subsequently to appeal as for definitive misdecision, appeal as for quasi-misdecision, (as per Ch. xxii. Appellate Judicatories, Section 3, Subject matters of Appeal,) has been made.

Expositive.

Art. 16. Quasi-misdecision has place, in so far as, by the conduct of the Judge, in any other way than by a definitive decree—for example by undue delay or by precipitation—the effect of misdecision has been produced.

Instructional.

Art. 17. On both occasions, petition for Quasi-trial, is in effect appeal from the Judge, acting without a Quasi-Jury, to the same Judge, or to another Judge, acting in that same judicatory, with a Quasi-Jury. For the difference between appeal so called, and this quasi-appeal, or home appeal, or rehearing as it may be called, see Ch. xxii. Appellate Judicatories, Section 3, Subject matters of Appeal.

Enactive.

Art. 18. On any of these same incidental occasions, the Quasi-Jurors give, or refuse, their approbation to any petition, by which the hearing on which they serve has been produced. This approbation they give, either simply or with any such modifications, as they think fit. So likewise their opinion, with or without proposed amendments, on the subject of any decree or mandate, which on that same occasion, the Judge may have thought fit to issue.

Enactive. Instructional.

Art. 19. Whatsoever opinative propositions have thus been made by a Quasi-Jury, having in the immediate judicatory been of course entered on the record, go up with it, in case of appeal, to the appellate judicatory.

For the optional forms capable of being given to such their opinions, see the Procedure Code, Ch. xxvi. Quasi-jury, Section 10, Opinative function (works, vol. ii. p. 154): so for the particulars of the effect given to them.

So, as to the form of recordation.

Instructional. Ratiocinative.

Art. 20. Main uses of a Quasi-Jury two—1. Serving as a check upon the power of the Judge; thence as a security for his appropriate aptitude: 2. On the part of the Quasi-Jurors, deriving appropriate instruction to themselves, as scholars in the judicatory, in its character of a school of justice. Were the first use the only one, defaults would be less material; substitutes might, in considerable proportion, serve as well as principals: and thus accommodation might be afforded to both classes; to principals, by exemption; to substitutes, by remuneration received from principals.

Instructional. Ratiocinative.

Art. 21. So far as regards appropriate intellectual aptitude, such substitution will, in proportion to the extent of it, be productive of advantage. But in this case, service in the character of a substitute might become in a preponderant degree prejudicial in respect of moral aptitude. It might become a regular source of livelihood:—a profit-seeking occupation:—in a word a trade. In this case, though the original aptitude would, so far as depended upon experience, receive increase, yet, of this increase, a deficiency in respect of the more influential element of appropriate aptitude, namely moral aptitude, would be a but too natural accompaniment. The fraternity, composed of the traders, would be apt to fall into two divisions, arranged against one another, by this or that party interest. Thus arranged they would constitute a known or knowable body, and in this body, by rich, or otherwise powerful, individuals, such influence might be acquired, as might cause these functionaries to exercise their functions according to a regular system, in a manner prejudicial to justice, and altogether unsusceptible of remedy, in a penal or any other direct shape.

Instructional. Ratiocinative.

Art. 22. In this state of things, a corruptive influence might naturally be exercised, each upon the other, by the Substitute-Quasi-Juror and the Judge. The Substitute—the frequency of his becoming so, depending more or less upon himself—might, on the one hand by offensive yet unpunishable demeanour, render himself an object of apprehension, or by undue obsequiousness of favour, to the Judge. Thus there might be a mixture of strife and corruption, by either of which, still more by both together, the beneficialness of the institution and the public confidence in it, would be lessened.

Instructional.

Art. 23. So far as regards the corruption, this consequence has been made manifest by English experience in the case of jurors.* As to strife, evil in this shape is under that form of government but too effectually obviated, by that corruptive influence and ascendancy, by which pretended and supposed checks, are so uniformly converted into subservient instruments.

Instructional. Ratiocinative.

Art. 24. Of the service rendered by the institution, in the character of a check upon the Judge, the effect depends—not so much upon actual aptitude, on the part of jurors on each individual occasion, as on his apprehension of what, for aught he can know, it may be. In the one case, knowing, on each occasion, by experience, what it actually is, he can, in proportion as, in respect of moral aptitude, it is inferior to what it ought to be, act accordingly: in the other case, unprovided with this knowledge, prudence will incline him to take for the constant ground of his proceedings, the supposition of the maximum of aptitude.

Ratiocinative. Instructional.

Art. 25. Thus it is—that, on this occasion, antagonization has place, between universal interest and particular individual interest—individual interest acting upon an uncommonly extensive scale: the universal interest requiring that the number of the individuals serving in this situation be maximized; individual interest that it be minimized. Between these conflicting interests, to effect a composition, as far as local circumstances admit, will, in each political state, be among the legislator’s cares.

Section II.

Composition and Number.

Enactive. Expositive.

Art. 1. A Quasi-Jury is composed of Quasi-Jurors of two classes, the ordinary, and the select: for shortness, say Ordinaries and Selects.

Enactive. Ratiocinative. Instructional.

Art. 2. That a casting voice may never be wanting, the number of both together is odd. The number here established is three, whereof two ordinary, one select. By the Legislature, addition, if deemed necessary, will of course be made to it: but what is expected is, that of the ordinary, the number will be at least twice as great as that of the select.

Ratiocinative. Instructional.

Art. 3. Looked to, more particularly for appropriate moral aptitude, thence for the determining will, are, as per Section 4, the Ordinaries: theirs being the interest of the greatest number: for appropriate knowledge, judgment, and active aptitude—thence for aid, and guidance to ordinaries, the Selects.

Note.—By the necessity of eliminating certain classes, indication is given of the course which, if not the only apt, seems at any rate the most apt, that can be pursued. Produce the selection, not in a direct way, by the location of those who present themselves as being fit to be charged with this compulsorily imposed function; but in an indirect way, by the elimination of those in relation to whom it appears that, for one reason or other, they are not fit to be charged with it; instead of addition, the operation, by the result of which this great class will be filled, will be subtraction, and of the remainder left, by and after the performance of it, will the class be composed.

Meantime, for the composition of this class, two operations correspondent, but opposite in their nature, present themselves as necessary to be performed: the first, of a general nature—of the legislative cast,—designation of the eliminative classes; the other, of a particular nature—of an executive, and thence of an administrative cast,—the filling up of these eliminative classes: the dislocation of individuals, from the appropriate locable class.

In the exercise of the first of these functions there will be little difficulty. To the charge of partiality, it will be in but a slight degree obnoxious.

What difficulty there is, attaches itself almost exclusively to the executive function: to that which exercises itself upon individuals, in their individual capacities.

In truth, when looked upon a little nearly, in so far as reason, not favour or disfavour, is taken for the guide, it will, in the instance of certain classes, be seen to be of the judicial character. Where the fact, constituting the efficient cause of title to exemption, is of a nature to be put out of doubt by conclusive evidence, as in the case of quantity, the difficulty will in general be comparatively, if not absolutely inconsiderable.

Not so, where, as in case of quality it admits not of any such conclusive evidence.

Take for example the case of superannuation. For the efficient cause of title to exemption, take the number of years the person has lived, say for example, sixty—here in general, there will be little difficulty. On the other hand, if, instead of this quantity, you take the appropriate quality, viz., the capacity of serving, in this branch of public service, without preponderant hardship to the individual, here comes the difficulty, one man at sixty-five or seventy shall be more capable of serving without preponderant hardship, than another man at sixty or even fifty-five.

But in company with, and in proportion to such difficulty, comes the arbitrary power, and with it the facility of applying it to sinister purposes, in every imaginable shape, to the purpose of extortion, on the one hand; to the purpose of corruption, on the other.

Hence it is that, to avoid a very considerable real evil, which does not readily meet the eye, it becomes necessary to leave open the door to a quantity, nor that an inconsiderable one, of apparent evil: for such will always be the case, in so far as quantity, in contradistinction and preference to quality, is assumed and employed as the standard and object of reference.

What, it may be asked, with your eyes open, will you give introduction and establishment to this double injustice? In so indefinitely large a multitude, will you give exemption to those who, being so perfectly fit, have no just title to it? while, to the injury of another large multitude, you refuse the benefit of the exemption, notwithstanding that, by the reason of the case, they are so justly entitled to it? Answer. Yes: this evil, whatever be its magnitude, I find myself under a necessity of introducing, on pain of finding myself under the necessity of introducing a much greater evil.

Taking for the efficient cause of title as above, the faculty of enduring the burthen, without preponderant hardship, I force upon the functionary, whoever he is, the exercise of a judicial function. So many individuals as there can be any reason, or so much as a pretence for charging with it, so many suits has he to take cognizance of, and make decrees upon, if not in the name, yet with not only all the power, but much more than the power, of a Judge. Of a Judge? And in what state of things? In a state of things, in which all evidence of a sufficiently conclusive character will in general be altogether wanting. Debarred thus by necessity, from deciding according to justice, he will be enabled, and (in the eyes of all who see for themselves an advantage in his possessing the licence) justified, in deciding according to favour and disfavour: in oppressing those whom it is agreeable to him to oppress; in favouring gratuitously or for a price, those on whom it is agreeable to him to confer this benefit.

When, for the diminution and restriction of arbitrary power, all is done that can be done, still, be the power what it may, some hands there must be, in which it is lodged, and these must be the hands of a single individual, for the all-comprehensive reason, which should never be a moment out of sight, viz., maximization of responsibility. Of the official individual in question, what shall be the official name? Say for example, Compositor—the Quasi-Jury Compositor: for as by the functionary of that name in a printing house, the contents of a printed sheet are in the first instance determined, so in the case of the sort of list here in question, in each individual case, though in a way which is the reverse of that mechanical mode, are the contents of that same list.

Having thus fixed upon our workman, with the sort of work on which he is to be employed,—upon which list, shall he in the first instance be employed? Answer.—Upon the possibly attending list, for the purpose of extracting out of it, the eventually attending list. As to the possibly attending list, it is the same with that of the electors in the subdistrict in question: for though between the one list and the other, it might be possible to make some difference, no particular benefit presents itself as being capable of being preponderant over the general evil of complication with which any such distinction would be attended.

Remain for determination, the hands by which, and the term of service for and during which, our Quasi-Jury Compositor shall be located. Fitter ones, than those of the sublegislature of the district, in which the judicial district of the immediate Judicatory is contained, have not presented themselves. Term of service, say one year, or to speak strictly, the remainder of the year, at the commencement of which the location, viz., by election has been performed.

This Quasi-Jury Compositor, if circumstances favoured, would bring with him into office, a propensity to come to a mutually commodious private understanding, with the Judge. On the part of the Judge, the correspondent propensity would by the like causes, be made to have place. My fears, however, of any such sensibly maleficent alliances are not very considerable. To my Judge, for the purpose of keeping him out of temptation, in this as in all other shapes, I have given a quantity of official and beneficial occupation, sufficient to fill up the whole of his disposable time: while, on the other hand, in the situation of the Quasi-Jury Compositor, the occupation given to him does not, in so far as conjecture can reach it, present itself as likely to afford any considerable quantity of maleficently-employable leisure.

If, for all the several individuals actually attending in the course of a year, one and the same Quasi-Jury Compositor is made to serve, viz., by forming out of the possibly-attending list, the eventually-attending list, for all the several immediate Judicatories within his district, his abode cannot be in any near vicinity to more than one, or some other small number of the Judicatories, comprehended in that same district: and if it were worth while, his abode might even purposely be fixed in a place in which it should not be possible to him, without the notorious formality of a visit, to come in actual contact with any one of those same Judges.

As to Fortune, when once it is determined that to the decision of this same fictitious personage, an affair of this sort will be committed, the faculty of obtaining that decision, without danger or fear of misdecision, has nothing in it, but what may, to universal satisfaction, be secured.

When in a general way as above, the determination has thus been made, who those individuals are, who, in each Judicatory, are fit to be called upon to attend, and shall attend accordingly, the mass of difficulties is unhappily by no means cleared away. In the instance of any individual, the call being made, what if it should not be obeyed? unhappily and unavoidably, here comes matter for another suit. The Judge, indeed, in this case, not the unavowed and undeclared, but the avowed and expressly constituted Official Judge, the Judge of the Judicatory in which the individual has been called to serve. Here too, however, comes the so frequently recurring difficulty: the difficulty of determining, in relation to the non-attending eventual Quasi-Juryman, whether the circumstance stated by him, as a justificative cause of his non-attendance, really at the time and place in question, was in existence.

In the course of the eliminative process, one circumstance there is, the aptitude of which, to constitute an efficient cause of title to exemption, seems incontestable, but which lies exposed, in no slight degree, to the difficulty and objection of which so much has been said. This is the case of those in whose instance, indigence is at such a pitch, that if admitted into the Judicatory, their presence might be productive of annoyance, obstructive in a serious degree of the course of the business. Of this difficulty no solution will be afforded, by the observation that, in the possibly attending list, no individuals can have place, but such as are in possession of the art of reading: and with the possession of that art, indigence such as that in question cannot with propriety be regarded as compatible. To this, there are two answers. In the first place, introduction of the Quasi-Jury system may be possible, and thence necessary, before the time when the art of reading has made any progress, so extensive as to afford a sufficient number of Jurors, after the eliminations that are indispensable, have been performed: on this supposition, some qualification other than the possession of this art, may be of necessity to be appointed.

The other answer is, that if the possession of this all intellectualizing art, is as amply diffused as it can be, and therefore as it ought to be,—in this case, within the number of those who are in possession of it, may be those whose condition in respect of the means of subsistence is at the lowest pitch. For there are none but what may be, and therefore ought to be, made to read; and what can scarce in any political community have place, is that there should not be some in it, in whose instance indigence in the degree here in question, has place.

Section III.

Functions.

Enactive.

Art. 1. Functions of Quasi-Jurors are these which follow:—

• 1. The Auditive.
• 2. The Lective.
• 3. The Inspective.
• 4. The Orally Interrogative.
• 5. The Commentative.
• 6. The Opinative.
• 7. The Appeal Warranting, or say Licensing.

Enactive.

Art. 2. Of these Functions, exercisable by each individual are all but the opinative and appeal-licensing: these, no otherwise than by the body.

Enactive.

Art. 3. The Appeal-licensing excepted, all these functions belong in common to Quasi-Jurors and the Judge. Of the Judge’s elementary functions, as per Ch. xii. Section 9, the imperative, and that alone belongs to him, to the exclusion of Quasi-Jurors.

Enactive. Expositive.

Art. 4. I. Auditive function. In the exercise of this function, a Quasi-Juror hears all discourses capable of serving as grounds for the formation of the Judge’s decrees: and moreover all discourses of the Judge, whether addressed to the Quasi-Jury, or any one of them, or to any other actor on the Judicial theatre.

Enactive. Expositive.

Art. 5. II. Lective function. In the exercise of this function, a Quasi-Juror shares with the Judge, in the reading of all written, or otherwise visibly expressed discourses, capable of serving as grounds for the formation of the Judge’s decrees.

Enactive. Expositive.

Art. 6. III. Inspective function. In the exercise of this function, he shares with the Judge in the inspection, not only of all visible instruments of discourse, but of all other visible objects, whether things or persons, capable of serving in the character of sources of evidence, for the formation of his decrees.

Enactive. Expositive.

Art. 7. IV. Orally-Interrogative function. In the exercise of this function, he puts by word of mouth, questions to parties, to witnesses, and to the Judge: and incidentally, as occasion calls, to any other of the actors on the Judicial theatre, as to whom, see Ch. xii. Section 2. As to the qualities which should have place on the part of the discourse expressed by such questions, with a view to produce responsion, see Procedure Code, Ch. xxvi. Quasi-Jury, Section 9, Interrogative function. (Works, vol. ii. p. 153.)

Enactive. Expositive.

Art. 8. V. Commentative function. In the exercise of this function, he gives expression to such comments, or say remarks, or observations, as occur to him, whether as to the discourse or deportment of parties and witnesses, or as to the conduct maintained on the occasion, whether by the Judge or any other actor on the Judicial theatre. For the mode of obviating obstruction, by the undue exercise of this function, see Ch. xii. Section 11, Judges’ Sedative function.

Enactive. Expositive.

Art. 9. VI. Opinative function. On the principal occasions above-mentioned, the Quasi-Jury, in the exercise of this their function, by the mouth or hand of their foreman, give expression to any such amendments as they think fit to propose to the Judge’s eventually-definitive decree in both its branches—opinative and imperative put together,—pronounced on the original examination: so likewise, to any such absolutely-definitive decree, as in consequence of the recapitulatory examination, he may have thought fit to substitute.

Enactive. Instructional. Ratiocinative.

Art. 10. VII. Appeal-licensing function. The sort of occasion, by which this their function is called into exercise, is as follows:—Criminal cases there appear to be, in which, if the execution of the sentence were delayed, of course, until the decrees of the Appellate Judicatory have been pronounced, and its sanction given to the execution of the imperative decree of the Immediate Judicatory, the certain evil of delay, vexation, and expense, to parties injured, and other actors on the Judicial theatre, might, in the eyes of the Legislature, outweigh the possible evil of effective misdecision, for want of such appeal: particularly if the appeal, with the consequent stay of execution, were placed absolutely within the power of the defendant. In these cases, the Legislature may perhaps, it is supposed, think fit to give to the Quasi-Jury the option of granting or refusing their fiat to the consequent stay of execution, where, by the defendant, declaration of appeal shall have been made. To this, their Appeal-licensing function, exercise will in such case have been given, by the grant or refusal of such their fiat. Name of this fiat, an Appeal license.

On the signature of an Appeal license, by the Quasi-Jurors, or a majority of them, the Judge will send up the Appeal in course, and stay execution accordingly: on the refusal of it, he will cause execution to be made, as if no such license had been prayed.

For the enumeration of those cases, see the Penal Code under the heads of the several offences: and the Procedure Code, Ch. xxviii. Appeal and Quasi-Appeal.

Expositive.

Art. 11. Cases of indigent rapacity, or say of rapacious or predatory indigence. By this appellative may be designated the class of cases which, on this occasion, is principally in view: in these cases, the nature of the offence being such, that without the stimulus of relative indigence, seldom is a person led into the commission of it.

Expositive.

Art. 12. Of offences of this description, the following may serve for examples: for adequate denominations and definitions, see the Penal Code.

1. Fradulent obtainment: that is to say, obtainment with consent procured by deception, without supposition of title on the part of the delinquent, or intention of making restitution, or of being amenable to law.

2. Theft: that is to say, caption without consent, or supposition, or pretence of title, or intention of restitution, or of being amenable to law.

3. Robbery at large: that is to say, caption by force, or obtainment by consent, extorted by means of immediate, or unpreventible injury, to body, mind, property, or reputation.

4. Highway Robbery: that is to say, on a much frequented road, street, or other public and open place.

5. Day Robbery: in conjunction with Housebreaking.

6. Night Robbery: without Housebreaking.

7. Night Robbery: with Housebreaking.

8. Day or Night Robbery: with or without Housebreaking, but in conjunction with Homicide: that is to say, with Homicide intentional, as to that effect, as well as the act; and whether, in relation to the robbery, preparatory, concomitant, or consequential: preparatory, for preventing resistance: concomitant, for subduing resistance: consequential, for punishing resistance, or for security against justice.

9. Housebreaking: with intent to rob.

Instructional. Ratiocinative.

Art. 13. Circumstances, by the consideration of which, it may happen, that in the mind of the Legislator, a demand for the institution of the restriction, thus put upon the faculty of Appeal, may have place, are as follows:—

1. On the one hand, the magnitude of the mischief of the offence.

2. The comparative multitude of offences, and offenders, relation had to the species of offence.

3. The comparative improbability, even of prosecution, much more of conviction, in the case of a person completely innocent, as to the sort of offence charged.

4. The otherwise certain multitude of groundless Appeals, for the chance of ultimate impunity, and the certainty of intermediate respite.

5. The exclusion, if put by the Penal Code, as upon the principles of this Code, it would be, upon all punishment, productive of evil in any shape, of a nature absolutely irreparable, and uncompensable—for instance, death or loss of limb, or bodily organ,—certain extraordinary cases excepted.

6. On the other hand, the unavoidable severity of the punishment, notwithstanding the exclusion put upon punishment productive of irreparable evil as above.

As to the effect to be given to the exercise of this function, see the Penal Code, and the Procedure Code. So as to the form of the instrument, by which expression is given to it.

Instructional.

Art. 14. In cases, such as the above, it will be for the consideration of the Legislature, whether to authorize or no, the Judge at his discretion, to make after the initiative application, but one inquiry, and that before a Quasi-Jury; or to make two inquiries, namely, the original without a Jury, and the recapitulatory with a Jury, as in other cases. The more simple the case appears on the initiatory application, especially in respect of the quantity and quality of the evidence, the less will naturally be the demand for a second examination, in addition to the first.

Enactive.

Art. 15. Modes in which the above functions of the Quasi-Jury (the Appeal-licensing excepted) are called forth into exercise:—

1. By the parties and their assistants, or substitutes, professional or gratuitous—what is said, is in general addressed and understood to be addressed to the Quasi-Jury in conjunction with the Judge.

2. By the Judge when making his observations on the evidence, or on the argumentation, or on the conduct of a party, or an extraneous witness, or any other actor on the Judicial theatre; or in stating the reasons on which his decrees, mandates, or other discourses, or acts are grounded,—the Quasi-Jury are in like manner addressed as principal auditors, appropriate regard being at the same time had to the Judicial Inspectors, as per Ch. xvii., and the several other actors on the Judicial theatre.

Section IV.

Located how.

Enactive. Expositive.

Art. 1. For seven days together, commencing with Monday, the day of rest included, in some Justice Chamber—ordinary, or, as in the case of Out-door Sitting, extraordinary—attend together three Quasi-Jurors, one of them a Select, the two others Ordinaries, forming thus an Attendance Set. Defaulters excepted, (as per Art. 2,) whatsoever be the number of Quasi-Trials in the week, these three serve together in all: thus forming the same Actually-serving Set.

Expositive.

Art. 2. If there be a defaulter, or defaulters, this Actually-serving Set are in so far different from the Destined Attendance Set.

Expositive.

Art. 3. A defaulter may be so of the whole seven days, or of any one of them.

Expositive.

Art. 4. To a defaulter is substituted, as per Art. 22., at short warning, a Supplementalist, out of the Town liable List.

Enactive.

Art. 5. In default of such Supplementalist, a Judicial Inspector will be drawn by lot from among the Probationary Lawyers, of whom see Ch. xxiii., or from among the Suitors, or witnesses in waiting to be heard on other suits.

Enactive.

Art. 6. On each week attend Sets, one or more, according to the exigency of the Service.

Enactive. Expositive.

Art. 7. Liable List, is, in each Judicial territory, Immediate or Appellate, the name of the List containing all those who therein are liable to be called upon to serve as Quasi-Jurors.

Enactive.

Art. 8. It is composed of the persons entitled to officiate as Electors, as per Election Code, Ch. vi. Legislature, Section 6, Eligible who,—those excepted, who for this purpose, have on appropriate grounds been eliminated.

Enactive. Expositive.

Art. 9. Of the Destined Attendant Set, or sets, of each week, the composition is the result of the connected operations of the Quasi-Jury Minister of the subdistrict, as to whom see Art. 12, and the Registrar of the Judicatory, whether Immediate or Appellate, in which they are to serve.

Enactive.

Art. 10. By the Minister, out of the above Service List, as per Art. 8, is formed the Liable List of each solar year: by the Registrar, out of that Liable List, are formed the Destined Attendant Sets of the several weeks.

Enactive.

Art. 11. For an Immediate Judicatory, the Destined Attendant Sets are drawn from the subdistrict in which that Judicatory sits; for an Appellate Judicatory, from the District in which that Judicatory sits.

Enactive. Expositive.

Art. 12. Subject to dislocation by the Justice Minister, the Quasi-Jury Minister is the Vote-taking Clerk of the Subdistrict, who, as such, has been located by the Election Minister, as per Election Code, Ch. vi. Legislature, Section 7, Election-Offices. Known to this Voting Clerk, are, as to their persons, all who have delivered, and as to their habitations, all who are entitled to deliver Election Votes. Such dislocation the Justice Minister cannot effect, but by locating, by the same instrument, a substitute of his own choice.

Enactive. Expositive.

Art. 13. Out of the above Electors, are framed by the Minister, two Lists—the Excluded List, and the Exempted List. Those on the Excluded List, cannot be put upon the Liable List: those on the Exempted List, cannot be put thereon, but on their own application.

Enactive. Expositive.

Art. 14. Of those, if any, by whom such application is made, is composed the Voluntarily-serving Liable List. Of the Liable List, those who are not upon the Exempted List, are distinguished by the appellation of the Obligatorily-serving Liable List.

Instructional.

Art. 15. Of exclusion what shall be the grounds, will in some measure be the result of local considerations. Of proposable grounds, examples are as follows:—

1. Disreputableness on the score of criminality. Evidence, the Delinquency Register: as to which see the penal code.

2. Preoccupation in public business: as in the case (exceptions excepted) of all Public Functionaries. Evidence, The Official Register.

Instructional. Expositive.

Art. 16. Of Exemption, proposable grounds are as follows:—

1. Habitual infirmity of body.

2. Habitual infirmity of mind.

3. Superannuation—to wit, on presumption of relative incapacity, through infirmity, or in respect of extraordinary vexation, by fatigue and discomfort of travelling and extra-habitation.

4. Preoccupation private; as in the case of Seafaring men, Medical men, Professional Lawyers: also any other persons, the nature of whose professional occupations does not admit of their being, for so long a time as that of a week together, suspended, or carried on by substitutes.

5. Foreignership; that is to say, inaptitude through want of sufficient acquaintance with the language in which the proceedings are carried on.

6. Absentation from home.

7. Relative unaffluence.

Enactive. Expositive.

Art. 17. Of the existence of an appropriate ground of exemption, as per List, evidence provisionally conclusive will, in the instance of each individual, be a written instrument, expressive of an application on his part, signed by him, (the case of infirmity of mind excepted,) and containing his assertion thereof, corroborated by the attestation of two [or more] householders of the same Subdistrict, declaratory of their persuasion of the truth of such his declaration: responsibility, in case of falsehood, the same as in case of testimony orally uttered on the occasion of a suit. Name of the Instrument, a Quasi-Jury exemption demand.

Enactive.

Art. 18. On the ground of infirmity, whether of body or mind, as also on that of private preoccupation, the demand will require to be received on the first day of each solar year: if it be not received on or before that day, the name of the individual will be entered in the Liable List.

Enactive. Expositive.

Art. 19. Relative unaffluence. Understand thereby, either,

1. Relative untidiness: that is to say, want of such habiliments, by the want whereof, annoyance would be caused to colleagues; or,

2. Relative untrustworthiness: that is to say, in such sort and degree that the necessary expenses of the journeys of the individual to the place of Judicial attendance, could not, without too much hazard be advanced, as per Section 5, Subsistence-money. Adequate evidence is, in both cases, either,

1. Exemption demand, as per Art. 17; or,

2. Certificate, by Local Headman, as per Ch. xxv., and Local Registrar, as per Ch. xxvi.

Expositive.

Art. 20. The Exempted List constitutes an appendage to the Liable List. Where the ground of exemption is temporary, the name of the same person may, of course, be in the same year, at one time on the Exempted List, at another time on the Liable List: and so, in the course of the year, any number of times.

Enactive.

Art. 21. In time of peace, apprehension of imminent war excepted, (as per Ch. x. Defensive force, Section 12, Powers of Military, as to non-Military,) situation in the Stipendiary Army or Navy is not a ground of exclusion; nor,—except on special application by a Quasi-Jury exemption demand, as per Art. 17,—of exemption.

Enactive. Expositive.

Art. 22. Out of the Liable List, will be formed by the Minister two distinct Lists, to wit, the Country Liable List, and the Town Liable List. To the Town List, belong all inhabitants whose habitations are within the precincts of the town in which the Justice Chamber of the Judicatory, whether Immediate or Appellate, is stationed. Of the Members of this List, the destination is, to serve, as per Arts. 2, 3, 4, at short warning as Supplementalists, or say Substitutes, to defaulters belonging to the Country List; or for the purpose of completing the week’s service, as per Art. 38. To the Country List belong all the other Liable inhabitants of the Judicial territory of the Judicatory, whether it be Immediate or Appellate.

Enactive. Expositive.

Art. 23. Out of the Country Liable List, are formed the Select Liable List, and the Ordinary Liable List. So, out of the Town Liable List.

Enactive. Expositive.

Art. 24. To the Select Liable List belong among those whose names are in the General Liable List, all those (exceptions excepted) from whom (as per Art. 14) appropriate application to be admitted thereupon has been received. By such application, a man disqualifies himself from receiving subsistence-money, as per Section 5. On the other hand, he enjoys the distinction conferred by the functions attached to his situation, (as per Section 3, Functions.)

Enactive. Expositive.

Art. 25. To the Registrar of the Judicatory, whether Immediate or Appellate, it belongs out of the Country Liable List, as furnished to him by the Quasi-Jury Minister, (as per Arts. 9, 10, 22,) to frame, for the several Quasi-Jury Examinations, the several Destined Attendance Sets, for the several weeks, or the year: and time after time, in such number as the service shall have required, to accerse, or say summon them respectively: and each time, in case of default, to accerse Town Liables to take the place of Defaulters.

Enactive. Expositive.

Art. 26. As in the Immediate, so in the Appellate Judicatory, to the Registrar it belongs, from time to time, to accerse the several individuals, by whom the service of the several weeks in the solar year is to be performed. To this end, the state of the Liable List will be made constantly known to him in manner following:—

Towards the close of each solar year, time enough to be received by the several individuals before the first day of the ensuing year,—the Quasi-Jury Minister, having caused to be framed and printed, transmits to the habitation of each individual liable, a printed exemplar of the Liable List for that same year, as also on the earliest day, one or more exemplars to the Registrar. This List will be divided into as many Sub-Lists as there are Bis-subdistricts, or say Local Headman’s and Local Registrar’s territories in the Subdistrict, or say Immediate Judge’s territory: on each such sub-list, the individuals will stand indicated in the alphabetical order of their surnames.

Enactive. Expositive. Ratiocinative.

Art. 27. In the course of that same ensuing year, he will, in proportion as the information reaches him, transmit to the Registrar notice of the several individuals, who, by death, expatriation, exclusion, exemption, or otherwise, cease to become liable. Of these, the Registrar will frame a List, which will constitute an appendage to the Liable List of that year. Name of it, Efflux Liable List. Use of it, preventing his transmitting Accersition mandates to those in whose instance their incapacity of serving has been thus made manifest.

Enactive. Expositive.

Art. 28. In like manner he will give notice of the several individuals who, by becoming entitled to give votes, become liable to serve as Quasi-Jurors. Of these will be composed another appendage. Name of it, the Influx Liable List. Amalgamated with the Liable List of the year, this appendage, after deduction of the names in the Efflux List, will constitute the Liable List of the next year.

Enactive. Expositive.

Art. 29. From each Liable List thus constituted, the individuals constituting the several sets will, as occasion calls, be determined by the Registrar in open Judicatory, by lot, as per Ch. ix. Ministers collectively, Section 16, Locable who, Supplement: the time of the several operations being so adjusted, that, between the day and hour of the delivery of the accersition mandate, at the habitation of the individual, and the day and hour appointed for the commencement of his attendance at the Justice Chamber, an interval sufficient for journey and preparation shall have place.

Enactive. Instructional.

Art. 30. The day and hour of the drawing being foreknown, any person who, seeing his name in the Liable List, has a legitimate excuse for not paying attendance on the coming week, transmits to the Registrar, at his office, an appropriate Excuse paper, for the truth of which (as per Section 6, Attendance) he is compensationally and punitionally responsible. For the several allowed excuses, see the Non-compliance Excuse List in the Procedure Code, Ch. x. Section 5. In it are contained the several excuses by which exemption is given from the obligation of compliance, with the several accersition, and other judicial and authoritative mandates, authorized by the Legislature.

Enactive.

Art. 31. Of the several individuals from whom, within the time in question, Excuse papers have been received, the names are transcribed into a List, which is kept hung up in the Justice Chamber in conspicuous characters and places. On the drawing of the Lottery, if the name of any such Excuser is drawn out, the Registrar points to that same name in the Excuse List, and another is drawn out instead. His name is again put into the Lottery at the end of [NA] weeks.

Enactive. Instructional.

Art. 32. To the Quasi-Jury Minister, the appropriate facts in question, as above, will have been made known as follows:—

I. Of the deaths, such as have happened in the several Local Registrar’s territories, will have been made known to him by so many Death-indicating certificates, transmitted to him (as per Ch. xxvi. Local Registrars, Section 5, Death-recordation Function) by the respective Local Registrars: effluxes produced by other causes will have been made known to him, from such other sources of information as his situation has furnished him with.

Enactive. Instructional. Ratiocinative.

Art. 33. II. Of the individuals, whose names belong to the Influx List, the accession will, in the instance of those by whom votes have been delivered, or are intended to be delivered, have been made known to him, to wit, in his quality of Vote-taking Clerk of the Sub-district, as per Art. 12, by the applications respectively made by them, for the blank instruments, by the filling up of which (as per Election Code, Section 7, Voters’ Titles, how pre-established) their respective titles to vote will have been constituted: in the other instances, from such other sources of information, as his situation has furnished him with. Note, that of the several individuals, whose names are upon the Liable List, there is not any one, who may not have an interest in maximizing the number of those who will be sharers with him in the burthen, which it is the unavoidable effect of the institution to impose.

Enactive. Ratiocinative.

Art. 34. For the better securing the completeness and correctness of the information thus furnished, attached to the printed Liable List, of each year will be the Efflux List and the Influx List of the last preceding year: and in each List will be added to the name, indication of the source from which, the channel through which, and the day on which, the information was by the Registrar received.

Enactive. Instructional.

Art. 35. Of the Sets to be drawn out for each ensuing week, the number will have been predetermined by the Judge, from the number of Quasi-Jury Trials destined to be performed in the course of the week. As to their probable respective duration, and thence as to their aggregate number, grounds of inference will in the instance of each have been produced by the Original Inquiry.

Enactive. Instructional.

Art. 36. Corresponding to the number of the Judge Deputes permanent, if more than one, will be the number of Quasi-Jury Trials, capable of being, upon occasion performed in so many Justice Chambers, principal and occasional, at the same time.

Enactive. Instructional.

Art. 37. If, before the end of the week, it has been clearly ascertained, that, of the sets in attendance there are one or more whose service will not be needed, every such superfluous set, will, as soon as it is so discovered, be dismissed.

Enactive. Instructional. Expositive.

Art. 38. If on the other hand, and so soon as, whether by experience or by well grounded anticipation, it has been determined by the Judge that the number in attendance is not sufficient for the completion of the service,—other sets, in sufficient number, will be forthwith accersed from the Town Liable List, as per Art. 22.

These numbers will, in the nature of the case, be indefinitely variable. Sitting time in a day, being (say) eight hours, on this or that day, may have been performed Quasi-Trials eight or more. On the other hand, in this or that instance, by one and the same Quasi-Trial, eight or more hours may have been occupied.

Enactive.

Art. 39. When, in any Judicial territory, Immediate or Appellate, a man has paid due attendance, he is not, in and for that same territory, liable to serve anew, until all other persons in the Liable List, of that same territory, have served. At the end of such his term of service, a mark, indicative of the fact of his having served, together with the day on which his service was completed, will by the Minister be entered upon the printed Liable List of that year, and continued on the Lists of the several succeeding years, until it has been duly eliminated.

Enactive.

Art. 40. Any person may serve by substitute: the substitute being a person whose name is on the Liable List. In this case, the substitute brings with him, the Accersition mandate, addressed to the principal. He stands bound to answer any questions as to his being the person whose name is on the List, and as to his not having been chosen for any sinister purpose: such for example, as the showing undue favour or disfavour towards any party to the suit. The principal is thereupon exempted from taking his chance in the Lottery (as per Art. 31) for (NA) weeks to come: and the substitute stands excluded from serving again, until, as per Art. 39, the stock of those who remain liable to serve has been exhausted.

Enactive. Expositive.

Art. 41. To keep watch against abuse in every shape in this department, will be among the special tasks of the Public-Opinion Tribunal. Of these shapes, a principal one would be the species of fraud called Packing. By packing, understand in this case an arrangement under which,—in consequence of an agreement, express or tacit, between the Quasi-Jury Minister on the one part, and men of wealth or influence on the other part,—by means of a system of absentation and corresponding substitution, individuals, one or more, attending for the purpose of serving the interests of a party, at the expense of justice, are, on this or that occasion, introduced into the composition of a Quasi-Jury. As to this danger see Section 1, Fields of Service, Art. 21.

Instructional. Ratiocinative.

Art. 42. In a newly constituted State, in which population is thin, territorial divisions in proportion extensive, appropriate journeys long, and on the part of the ordinary class, even with reference to this function, appropriate aptitude in its several branches rare,—the Legislature will probably find itself under the necessity of confining the selection, out of this same class to Towns: extending the range, from time to time, in proportion as those several obstacles give way, to the correspondent and opposite features of convenience.

Note.—On this occasion, it would be among the objects of consideration for the legislature, whether anything, and what, can be done for the alleviation of the tyranny hitherto, in a greater or less degree, so universally exercised over the weaker by the stronger sex. Suppose for this purpose, amongst other things, a modification of the Quasi-Jury. The number of the males (the total number being minimized as it has been) would scarcely, it would be thought, admit of retrenchment. If so, the next least number affording a certainty of a majority is five. Reserving in every case the predominance to the stronger sex, here then would be the foreman as before, a male erudite, ordinaries two males: of the female sex, erudite one, ordinary the other. Logical field of exercise, those cases in which the interests of the two sexes antagonize. For particular instances, see the Table of Private Offences, in the Penal Code. Under the penal head of Offences against property, will be included several non-penal heads respecting rights. Instances are, 1. Reciprocal rights and obligations of male and female in the married state. 2. Shares as between sex and sex on occasional succession. 3. Encouragement for medical practitioners of the female sex, for cases of parturition, pregnancy, and other complaints peculiar to that sex. 4. Equal but appropriate partition of the female sex, in whatsoever encouragements, are given at the public charge for the melioration of education.

On the occasion of the Election Code, secrecy of suffrage being secured, much reason was found for giving to the female sex an equality of suffrage, as compared with the male; no reason found on the other side: no argument but what was grounded on the assumption of the thing in dispute. From this source, as from every other, corruption must be guarded against. On this account, as well as on account of experience, females should not be admitted till after the child-bearing age. So, on account of comparative want of experience, an exclusion should be put upon never-married females, in favour of married women and widows. For more assured freedom, better perhaps that upon women under the power of husbands, an exclusion should be put in favour of widows.

In domestic society, as between man and wife, in case of contrariety of wills, in respect of the occurrences of the day, the determining power cannot be lodged in any other hands than those of the male. The hands in which power, on whatever occasion exercised, must be reposed, are those in which, physically speaking, it can at all times be exercised: but for some time before, and after parturition, the female (although by a comparatively rare accident, she were in respect of physical strength the stronger of the two) could not possibly be so, nor yet, when encumbered, and with increased sensitiveness, with an infant at her breast. But far from affording reason against the female sex being let into a participation of political power, exercisable on political occasions, this consideration affords a reason in favour of this advance towards equality, inadequate as it cannot but be.

Section V.

Subsistence-Money.

Enactive. Instructional.

Art. 1. The subsistence-money of an ordinary Quasi-Juror is [NA] per day of attendance: journeys and demurrage included: this being double the estimated amount of the ordinary day’s pay of the lowest paid class of labourers.

Enactive.

Art. 2. So, in the case of each individual, together with appropriate medicines and medical treatment, for every day in which his return is prevented by sickness; the fact being established by appropriate evidence.

Enactive.

Art. 3. Under the care of the Registrar, the regular subsistence-money (as per Art 1.) is sent and delivered to the Quasi-Juror, or left at his house through the medium of the Local Headman of the Bis-subdistrict, at the same time with the Accersitive mandate. The casual additions (as per Art. 2.) are furnished by the Registrar at the Judicatory.

Enactive.

Art. 4. A Quasi-Juror of the Select Class serves gratis.

Section VI.

Attendance.

Enactive. Expositive.

Art. 1. Attendance, how enforced. By the Registrar is regularly framed and kept the Quasi-Jury Defaulter’s List. In it are two Sub-lists:—1. The Country Defaulter’s List: and 2. The Town Defaulter’s List. To the name of each defaulter, as soon as he becomes so, the Registrar attaches an indication of the fact, and the day, and of the proceedings carried on, in consequence.

Enactive.

Art. 2. For the penalty for each day’s default, as well on the part of the Select, as on the part of an Ordinary destined Quasi-Juror, see the Penal Code. In lieu of, or even in addition to, compensation money, for the overburthened Liables who have served, penalty for each day’s default, so many days’ imprisonment: name of the fund into which (in custody of the Registrar) the money is paid, the Overburthened Quasi-Jurors compensation fund. Out of it, to such Town Quasi-Jurors as have served, compensation is made for the burthen brought upon them by defaults, whether on the part of the Country, or of the Town stock of destined Quasi-Jurors.

Enactive.

Art. 3. On receipt of an appropriate instrument of requisition, signed by any [NA] Town Liables, who have served, the Government Advocate will institute pursuit, on the ground of default.

Enactive.

Art. 4. On receipt of a like instrument signed by any [NA] such Liables alleging falsehood to have been committed by an assertion contained in any Excuse paper, particularizing the alleged false assertion, and binding themselves on their responsibility, compensational and punitional, to make sufficient proof of the falsity,—he will institute a suit, demanding the appropriate punishment.

Section VII.

Securities for appropriate Aptitude.

Enactive. Instructional.

Art. 1. Of the part taken by a Quasi-Juror, manifestation will, on each occasion, be made of course in the Register; responsibility will thus be secured in the case of culpable inaptitude. So, on the other hand, appropriate distinction and honour, in case of appropriate aptitude in any shape, in any extraordinary degree manifested.

Enactive.

Art. 2. For unconscious error in judgment, no Quasi-Juror is ever punishable; but if on any occasion, compared with his means of information, the error is clearly so gross, that unconsciousness of wrong on his part is not credible, in such case he is punishable; nor in such case will any acquiescence or even concurrence on the part of the Judge, suffice for his exemption.

Enactive.

Art. 3. So for wilful connivance at breach of duty in any shape having place in his presence, or with his knowledge, on the part of the Judge. In whatever shape delinquency has place on the part of a Judge, a Quasi-Juror, having knowledge of it and not declaring it, is an accomplice.

Enactive.

Art. 4. For corruption, whether in the shape of bribe-taking, or in any other shape, he is punishable; and this although the part he takes be in other respects right.

Enactive.

Art. 5. For his protection against unjust punishment at the hands of the Judge, he shares with every other person the benefit of Appeal to the Appellate Judicatory, namely, by means of the Incidental Complaint Book, as per Ch. xii. Judiciary collectively, Section 18.

Enactive.

Art. 6. To the Judge, in the exercise of his Sedative function, as per Ch. xii. Judiciary collectively, Section 11, it belongs to take care that, in the exercise of their several functions, whether severally or collectively exercised, the members of the Quasi-Jury do not, designedly or inadvertently, produce useless and pernicious obstruction, delay, or vexation, in the process of Judicature.

Expositive.

Art. 7. Examples are as follows:—

1. In the exercise of the auditive function, insisting on the hearing of useless documents or arguments, or the useless repetition of useful ones.

2. In the exercise of the inspective function, as applied to discourse in a written or other visible shape, one of the members keeping the document to himself to the prejudice of the right of another; or one or all of them keeping the business unnecessarily at a stand, while the lective function is, or is supposed to be, exercising by him or them.

3. In the exercise of the inspective function at large, keeping the business at a stand by needlessly prolonged inspection: especially if, where a person is the subject of the inspection, needless vexation be inflicted on the person.

4. In the exercise of the interrogative function, persisting in the utterance of irrelevant questions, or in repetitions of the same question, or persisting in exacting an answer, when by the Judge the question has been decreed to be such, that answer thereto is not exigible.

5. In the exercise of the commentative function, obstructing the course of the business by irrelevant or frivolous observations, or repetitions of the same observation.

Instructional.

Art. 8. For occasional assistance in the formation of his judgment, a Quasi-Juror of the ordinary class, has before him the appropriate knowledge and judgment that may naturally be expected at the hands of his colleague, whose place is in the select class.

Enactive. Ratiocinative.

Art. 9. In a week, for the service of which, divers Quasi-Jury sets are in attendance, should it so happen, that during any part of the time, sets one or more are not in actual service, their appropriate place will be in the Inspector’s Gallery, as to which see Ch. xvii. Judicial Inspectors. The greater the time employed by them in that seat of appropriate instruction, the less will be the time during which they will stand exposed to seduction at the hands of parties and their adherents.

[* ]See the Elements of the Art of Packing, &c., in vol. v. of this collection.