find for a plaintiff, in libel, with less than 40s. damages, they must mean this: that they feel bound to give him a verdict in point of form, but that no injury has been done; either because the plaintiff had no character to lose, or because the statements were true. Either supposition is utterly irreconcilable with the notions of a "wilful and malicious" libel. We have therefore two conflicting decisions by distinct authorities in the same case and the same court, on a question of fact—an immediate appeal from the jury to the judge on the merits.

This is contrary to the principles of English jurisprudence. It may be that the judge in this instance was right, and the jury wrong. It may be, that, in cases of libel on private character, this is generally the case where there is a difference of sentiment between them. We do not contend for the superior fitness of either. Our object is only to point out the inconvenience of this double jurisdiction: this conflict of authorities, which cannot fail in our opinion to exasperate juries against judges, and to encourage those who conduct a case to endeavour to set the one against the other, whenever they happen to perceive an unfavourable disposition in the minds of either— a species of tactics peculiarly calculated to bring justice into contempt.

It is, we know, contended that the act renders it imperative on the judge to certify wherever his conscience is convinced that the grievance is wilful and malicious. If so, our objections apply to the framing of the act itself, and not to the mode in which it was put in execution in this instance. But we confess that our own interpretation of its provisions is different. It does not require the judge to certify, if he thinks the grievance wilful and malicious: but merely enacts that the plaintiff shall get his costs if the judge shall so certify. This surely seems to leave the certificate at the discretion of the judge and to intimate that he may use his power or not as he may think most reasonable, and most expedient, under the circumstances of the case.

Our reader will recollect the analogous words of the 22 & 23 C. 2, c. 9, "wherein the judge shall not certify that an assault and battery are sufficiently proved," and the very different opinion entertained by able judges as to the extent of their discretion under it. But it will be observed that on the

strictest construction of that act, it did not bring the judge and jury into direct conflict. The judge might feel bound to certify that a battery was proved, and by so doing he might give the plaintiff costs of which the jury intended to deprive him; but that was only a legal consequence: the finding of the judge and that of the jury were not in themselves inconsistent.

But it will be asked, why give the judge such a power at all unless it was intended to allow him this opportunity of correcting a bad verdict? In answer it may perhaps be said, that there may be cases of injury to the person or personal property, in which the actual damage may not amount to 40s. and in which the jury, from mistake, from the persuasion of the advocate, or from other conceivable causes, may not give more: and yet the judge may justly certify that the trespass was wilful and malicious. Perhaps we might concede, though we do it with great reluctance-feeling convinced that in such cases the great right is generally attained by the endurance of the little wrong-that there might be cases of a more serious description in which the judge, on maturely weighing the merits, might feel it his duty to use this power, as one to be exercised only in the last resort, to nullify a perverse verdict and right an injured person. But unfortunately the act renders such mature consideration impossible. It requires the judge to certify "immediately afterwards." The courts have not yet been called upon to decide what latitude they will give to these expressions. But if they mean that the power is to be exercised at the close of the trial, as it has been in the only cases we have hitherto seen, the dangerous nature of the provision is evident at once. In the very moment of annoyance at the perverse view taken by the jury,—in the very height of that temporary irritation which the wisest and most patient must feel at finding the intimation of their opinions utterly disregarded,—smarting, if we may say it without disrespect, under the consciousness of defeat, the judge is called upon by the counsel of the beaten side to protect his client from the consequences of the verdict. Can it be doubted that under these circumstances a judge will often grant a certificate which on a more mature consideration he would have withheld? May he not even feel a pleasure in disappointing the wishes

of the jury, and depriving a defendant of an anticipated triumph, of which in cooler moments he would be ashamed as unworthy of the judicial temper? We say it once more, that we apply these observations in no degree to the particular case which gave occasion to them: they are merely speculations as to the probable results of a literal, perhaps too literal, exercise of the powers now entrusted to the judges, in a class of cases peculiarly calculated to excite a passing spirit of partisanship even in the calmest dispositions.

ART. VII.-THE NEW RECORD SYSTEM.

First Report of the Deputy Keeper of the Public Records, presented to both Houses of Parliament, by Command of Her Majesty.

THE aspect of Record affairs is much brighter, and the task of noticing them much more agreeable, than at the time when we last brought the subject before our readers.* Year after year, almost century after century, struggles had been made to palliate and remedy accumulating defects,-struggles most impotent, and costly wherewithal,-to be estimated in tens and hundreds of thousands of pounds sterling; but not until the year 1838 did the legislature venture on the "hazardous experiment" of striking at the root of the evil, by providing a responsible and sufficient custodyship for the national records.

We have little wish to rescue from merited oblivion past mismanagement: still some allusion to it in the course of the following pages will be unavoidable, in order to form an estimate of what already has been and is likely to be gained by the recent changes. If we were disposed to attribute these to one cause more than another, it would be to the appointment of the present Master of the Rolls. The evils of the old system were felt and acknowledged by other high legal functionaries: Lord Langdale, however, has been the first and only one to superadd action to conviction. In the session

* See Law Magazine, vol. xvii. page £0.

of 1838 an act, of which we give an abstract below,* was passed, which empowered the Master of the Rolls to abolish the ancient and worn out system, and to organize a new one in its stead; and we now propose to acquaint our readers with the progress which has been made in carrying out the new act and in commencing this much needed reform.

In the article to which we have already alluded, we showed that the impediments obstructing the use of the public records, were to be traced to the disarrangement and confusion among the records themselves; to the want of proper facilities of reference by means of calendars, catalogues and indexes; to the imposition of fees, which almost practically precluded the consultation of the records; to inconvenient regulations, to numerous and destructive places of deposit, and to irrespon

* 1 & 2 Vict. c. 94.- An Act for keeping safely the Public Records. 14 August, 1838.

1. The Public Records (including those in the ancient repositories and those of the several courts) to be under the superintendence of the Master of the Rolls. 2. The Queen in Council may order records in other offices to be included in this act.

3. The Master of the Rolls may issue warrants for the surrender of records above twenty years of age, subject to certain regulations.

4. Powers to make orders for cleaning, repairing, preserving and arranging the records, making calendars, catalogues and indexes; also to remove records.

5. Master of the Rolls may appoint a deputy.

6. Treasury to appoint assistant keepers and other officers.

7. Additional building or buildings to be provided.

8. A Public Record Office to be established-of which Record Offices are to to be considered as branches.

9. Master of the Rolls to make rules for the management of the office, and the admission of persons using the records, to fix the fees, and to dispense with fees in certain cases.

10. Fees to be paid into the Exchequer.

11. Seal for certifying copies to be provided.

12. Power to make authentic copies of records, which shall be sealed.

13. Such sealed copies to be received in evidence.

14. Calendars and indexes may be printed.

15. Printed copies of records, &c. may be sold.

16. Power to purchase calendars, catalogues and indexes.

17. Deputy keeper to report proceedings annually to Parliament.

18. Compensation to record-keepers; those entitled to compensation, if "in all respects competent and fit," to be in the first instance appointed as assistant keepers, &c.

19. Certifying as true any false copies of records a felony.

20. Interpretation clause.

sible, negligent and antiquated custody ship. Whilst an instant remedy for many of these evils has been afforded by the Public Records Act, ample means for the correcting of those in which much time must necessarily be consumed, have likewise been provided.

The act was passed in August 1838, but did not touch the record system till July 1840. Before it could be brought into operation, certain preliminary investigations of the salaries and emoluments of the officers of the various record establishments in London, likely to be affected by a change, and of the best scheme for the formation of a new establishment, were required to be prosecuted, and it was not until the period we have mentioned, that these were sufficiently advanced to warrant the commencement of the new system.

The first step taken was to supersede the ancient custody and to create a central office, to which the several record offices were attached as branches. The "Public Record Office" was located at the Rolls House, and Sir Francis Palgrave appointed as the Deputy Keeper of the Records. The offices subjected to the immediate operation of the act, are named in the following Rules and Regulations which have been officially issued by the Master of the Rolls

"Rules and Regulations made by the Master of the Rolls for the management of the Public Record Office, for the admission of persons to the use of the records, calendars and indexes, and the amount of fees to be paid for the same, and for copies of records, pursuant to the statute made and passed in the Parliament held 1st and 2nd years of the reign of her present Majesty, intituled, “An Act for keeping safely the Public Records," the same to be observed and paid in the said public office, and in the record offices of the Tower, Rolls Chapel and Chapter House; and the repositories of the records of the King's Bench, at the Rolls House, the Common Pleas in the Carlton Ride, and the repository No. 3, Whitehall Yard, and of the Exchequer of Pleas in the said repository No. 3, Whitehall Yard, and all such other record offices and repositories as shall hereafter be brought under the regulations of the said act, by the said Master of the Rolls :

"1. The public office and all the above mentioned offices and repositories are to be opened daily from ten to four, excepting on Sundays and the following holidays: --May 24th, her Majesty's