propounding next session, should he find his present plan to fail we mean the one given by the Captain in his published work at full length, and upon which it is reported that Captain O'Brien (assisted by Captain Warner and other able projectors) is now working at his few leisure hours, as it will require some adjustment and adaptation to the circumstances of this country: we mean the plan of securing parliamentary unanimity by sawing the heads of the members. The difficulty of procuring instruments of sufficient power to perform this most useful operation is said to have been the most formidable obstacle; but that has been re-moved by the extraordinary power of one of the newlyconstructed steam-engines, which is found capable of sawing through iron or brass of great thickness and toughness, and may possibly therefore be able to penetrate the obdurate and thick bones in question. But as the noble Chief of the Board (we mean our English Board, not the Laputan Hom-bog), coming from the highly literal country of Scotland, is very likely to take issue with us, and to deny with much asseveration his having borrowed any thing from the illustrious Traveller, (whether or not he is really engaged in the new saw-and-patch plan, he of course cannot be expected decorously to communicate), therefore we must e'en come back to the subject after the manner which may best suit his taste. Then we intreat him for a moment to consider in what position he places the parties between whom the Board decides in ignorance of their case, as well as the Committees whom it admits to a share of its own "outer darkness," by way of helping them. The plan A is affirmed without proof; the plan B without proof rejected. The B people are ready to disprove all the assertions of the A folks; and to show that the plan is by far the best, "Go, if you please (nay, if you dare), says the Board, before a Committee." Before a committee they gothey find that the A people have the decision of the Board in their favour, have obtained the ear of the committee, and thus got possession of the field, so that the case B is altogether desperate. As for the committee, unless they feel bound by the decision come to in the dark, the whole scheme necessarily fails to give them the least help. but We marvel that this scheme should be confined to Railways and to Bills. Why may not many matters, instead of occupying some days' debate, be referred to the Board of Trade; or whatever board the subject properly belongs to? The Corn Laws, at least, might be so dealt with; unless, indeed, another plan, to be found in the same travels, were adopted, that of requiring all the speakers to go on at once, and calling a vote at the end of their joint and several speech. But why confine these salutary inquiries and contrivances for saving time and trouble to Parliament? We know how oppressed with business our courts of law always are. Has it never occurred to the Chancellor and the Chief Justices that they might make a "Regula Generalis" a wholesome Rule of Practice, sending all causes in the first instance before any four or five eminent persons of great respectability and no experience, who, without wasting time to inquire, except by hearing the parties, might report to their respective courts in each cause, it being understood that from respect to those excellent individuals, and to their own ease and comfort, and the value of the public time, it must be a mighty strong case indeed which should induce the Courts to adopt a different decision from that come to by those eminent, though unenlightened, assessors, especially if one or more of them should happen to be also excellent officers, and to have served in the Peninsula under the Duke. Much reliance has been placed upon the perfect secrecy with which these proceedings of the Invisible Tribunal are carried on. That the impenetrable veil, however, is occasionally pierced, we have seen good reason to suspect, for Lord Brougham stated the division on a very much contested case to have been two to two, and he named the voters. There was no confession made, but there was no denial given to this statement; and it is universally believed to be true. Assuredly, had it been otherwise, the victory over an assailant never would have been shunned by the Board. Nevertheless the rule is, that all decisions are signed, and are reported as unanimous; yet those decisions are to have weight only as the opinions of the members composing the Board. Then does any man pretend to think that it will make no difference in the opinion of the Committees when they come to consider the Board's Reports, whether all the five join in the recommendation, or two are of one opinion, and two of the contrary opinion? Surely this plan is framed with the direct and unavoidable effect of deception, whatever might be the design of its promoters. As for the answer made in Parliament when this objection was taken, that the Admiralty and the Treasury all adopt a like course in their ordinary warrants, can any thing be more perfectly futile? Who is so dull as not to perceive the difference between merely executive orders, whose weight and authority depends in no degree upon the opinions of those that issue them, and decisions whose whole authority is derived from the opinions of the persons that pronounce them? Do not all reports of our cases in the courts carefully denote whether the judgment is unanimous or not; and who dissented from it? For why? Because though the particular case is as much decided by a majority as by the whole Bench, yet its weight as an authority to rule other cases (which is the matter now in hand of the Board and the Committees) depends very much upon the numbers and even the individuals by whom the decision was pronounced. Last of all, we come to the abuse - the possibility of abuse — and that is enough. We find 204 shares bought a short time before the decision in one case, and bought by the nearest relative of a member of the Board. Their value rose exceedingly immediately that the decision was pronounced. No one believes that undue knowledge was conveyed; yet all are aware that men in familiar conversation naturally express their opinions, and that acute observers may draw the conclusion. At any rate, every one knows that no law whatever prohibits or punishes such disclosures. The members of the Board, except the chairman, are in no responsible situation; they are not even bound by an oath of office; they are not ministers, they are not privy councillors. Why may not all the benefit of their skill and knowledge be obtained by examining them as witnesses? Why must they in such important and such delicate matters be made judges? The Tribunal is why, then, must its members be irresponsible ? But our objection is to the whole scheme, not to taking any portion or every portion of the Private Bill business from the Commons, and vesting it in a body capable of secret administering it faithfully and well, but the superadding to an incapable body another incomparably less capable, the affecting to assist Parliament by a preliminary inquiry from which all useful light is excluded. All objections to the particular character of this body are of very subordinate moment. But his A defender, indeed, of this system, though not of this structure, has unexpectedly appeared in the respected person of Lord Fitzwilliam. He is grateful for this boon conferred upon the country by the Government. notions are somewhat peculiar, not to say fantastical. He holds that the Board's decision should be final and irreversible, when it rejects any scheme, but that when it recommends one, the parties for and against should be allowed to petition Parliament, and heard fully before that tribunal. We need only ask his Lordship how he would relish such a scheme, were it applied to any suit which he might try for the recovery of a lost right. How would he like to be turned round and defeated by an officer of the court who had heard all that he chose to say, without any proof, but had also heard, without any proof, all the statements of his adversary, with an appeal from the officer to the court, if the decision was for him, but no appeal from that officer, if he decided for his adversary, all whose statements his Lordship might be prepared with evidence to refute? We believe, we need say no more on this strange addition, more wild by a good deal than the scheme to which it has been appended. We trust the reader will excuse the length to which the great importance of the subject has carried us on the present occasion. We feel most anxious for the honour as well as the interests of our country, and, above all, solicitous that nothing should tarnish the high reputation, the hitherto undimmed lustre of our best, our proudest institutions, those connected with the security of private rights, and the preventing of injustice. All the rest of our polity is as a trifle compared with this, and when once, under whatever pretence, the Legislature shall sanction a rash, a careless, or a corrupt dealing with the rights of property on whatever scale, but far more if on the largest scale, we may be well assured that the glory has departed from our whole system. ART. II. OF THE FUNCTIONS OF THE JUDGE AS DISTINGUISHED FROM THOSE OF THE JURY.1 LORD HARDWICKE has observed, and all reflecting men will agree in the observation, that “it is of the greatest importance to the law of England, and to the subject, that the powers of the judge and jury be kept distinct 2; " yet important as this object undoubtedly is, it is one which, even at the present day, is not very perfectly effected. The general principle, that the judge must determine the law and the jury the fact, is not, and cannot be, disputed3; but in the application This subject has already, to some extent, engaged our attention. See 1 L. R. art. III. p. 37. It is proper to state, that the above article is by another writer. - ED. 2 R. v. Poole, Cas. Tem. Hard. 28. * * In the case of R. v. The Dean of St. Asaph, Lord Mansfield declared, "that the fundamental definition of trial by jury depended upon the universa maxim, ad quæstionem juris non respondent juratores; ad quæstionem facti non respondent judices;" and his lordship added, “Where a question can be severed by the form of pleading, the distinction is preserved upon the face of the record, and the jury cannot encroach upon the jurisdiction of the court; where, by the form of pleading, the two questions are blended together, and cannot be separated upon the face of the record, the distinction is preserved by the honesty of the jury. The constitution trusts that, under the direction of a judge, they will not usurp a jurisdiction which is not in their province. They do not know, and are not presumed to know, the law; they are not sworn to decide the law; they are not required to decide the law. * It is the duty of the judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences." 21 How. St. Tr. 1039, 1040. So, in an elaborate essay on this subject, published by Mr. Hargrave as a note to 1 Co. Lit. 155 b., the learned author states the result to be "that the immediate and direct right of deciding upon questions of law is entrusted to the judges; that in a jury it is only incidental; that, in the exercise of this incidental right, the latter are not only placed under the superintendence of the former, but are in some degree controllable by them; and therefore, that in all points of law arising on a trial, juries ought to show the most respectful deference to the advice and recommendation of judges." In America, the same principles have been lately expounded in forcible language by Mr. Justice Story. "Before I proceed," said he," to the merits of this case, I wish to say a few words upon a point, suggested by the argument of the learned counsel for the prisoner, upon which I have had a decided opinion during my whole professional life. His argument |