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not to increase those duties in an unrea- the country, or are the parties, to be sonable degree. The duty performed by deprived of their right to the services jurymen on the circuit, is fatiguing and of a juryman because he happens to expensive; our form of trial is more have a friend among the counsel in the tedious than that in England, mainly cause? The reviewers themselves say, because of the advantage enjoyed by that “ the parties have a fair claim to the accused of having counsel who have their rights adjusted by the plead for him in every stage of the greatest quantity of honesty and intelproceedings; we have a greater num- ligence that can be extracted out of the ber of jurymen in each case, our coun- list.” Surely a ballot is the least cere try is much more thinly peopled, and, tain method of obtaining that extract, in particular, we have very few popu- and the right of peremptory challenge lous towns, consequently the duty exercised as the reviewers propose, or comes more frequently round to each as the guilty prisoners would wish, of the jurymen, and they have to would convert the uncertainty into imtravel from a great distance to attend possibility. the circuit courts. At present the judge Nor are these the only ways in which on the circuit takes care to apportion Mr Kennedy's bill would operate to the duty in such a manner as to give the inconvenience of jurymen, and the every possible accommodation to the prejudice of justice. It is generally the gentlemen of the jury. The reviewers interest of criminals to throw every say that “ nothing can be more noto- obstacle in the way of a trial; thererious than that this is not the fact;" fore they would separate their chalbut I say that it is the fact, and I ap- lenges, and the consequence would be, peal to the experience of all who are that their trials must likewise be sepain the practice of attending the cir- rated, so that, instead of bringing four cuits in any capacity whatever, and, criminals at once to trial on one indictin particular, I appeal to those who ment for the same criminal act, there have been accustomed to act as jury- must be four separate trials.* The efmen, to decide between my assertion fect of this would be, that the number and that of the reviewers. But, if the of trials, and consequently the actual jury should be chosen by ballot, the duty of jurymen, would be increased business would be most unequally di- at least threefold; the circuits would vided, and some jurymen would be last three times as long as they do quite done up while others might not now; and, to aggravate the evil, the be called upon to act at all. The re- jurymen could not be allowed the reviewers meet this objection by saying, lief of leaving the court for a few hours “ all this is avoided by arming the at a time as happens at present, for it parties with a few peremptory chal- is impossible to tell how soon a trial lenges," and they argue, that whenever may come to a conclusion, and the a juryman finds it inconvenient to act, moment it does, the names of the whole he can apply to some of the counsel in 45 must be immediately put into the the cause to challenge him, which they ballot box for a new case, and every one will readily do, because the “ legal ad- of the gentlemen must be in court to visers always find it for their interest answer to his name, in the event of his not to make themselves unpopular.” being ballotted. The reviewers see this Is it possible to conceive a more arti- objection, and they try to meet it ; but ficial antidote to a positive evil? Is it how do they try to meet it? why, by thus that the precious gift of peremp- giving up the whole principle on which tory challenge is to be cast away? Is they maintain the utility of peremptory
• The reviewers object to the practice of trying several criminals on one indictment, and I have heard some people of the same way of thinking with them object to the insertiori, in one indictment, of several charges against the same criminal. It is, however, highly proper that the measure of punishment should be proportioned to the extent of real and recorded guilt, not of either partial or supposed delinquencies. It is likewise proper that the associates of a delinquent should see that the executors of the law have pot accidentally acquired a knowledge of a single offence, but have the means of detecting every delinquency. Suppose, however, that both the principles of separation above alluded to should be applied to a case which is neither hypothetical nor old of occurrence, A gary of thieves, in the course of a few nights, perform ten acts of theft, and dispose of the goods to resetters; four of the thieves, and two of the resetters, are apprehended and tried; the former for ten acts of theft, the latter for an equal number of acts of res set ; to separate all these acts and prisoners would require no fewer than sixTY İNdictments,
challenge. They propose that “ the prudent man will resist in the outset, a same jury, when once ballotted, might measure which is but the forerunner try a number of cases, as, for example, of an undefined series of changes and the whole cases of the day ;" so that innovations on a system of criminal this great improvement-this essential law, on which experience has already of justice, Mr Kennedy's boon of pe- impressed the stamp of utility. It is remptory challenge, is indeed a de- quite plain, that to give any effect at tached and single measure ; a prize all to Mr Kennedy's bill, it will be merely to the first drawn ticket. To necessary to introduce other changes infuse any portion of justice into this which he has not contemplated, or at scheme, there should be a clause en- least for which he has not provided; acting, that the persons accused should and the termination of which no man draw lots for the first trial! This limite can foretel. It is impossible to figure ation of the practical operation of the a better illustration of the second gebill, can be viewed in no other light neral principle with which we set out; than as an abandonment of the prin- namely, that when a system of crimiciple on which alone it lays claim to nal law has existed for a long course support. The reviewers likewise pro- of years, and has become matured, all pose to prevent the necessity of sepa- its parts acquire an aptitude for each rating the trials, by summoning an other; and it is nearly impossible to additional number of jurymen. Here remove or alter any of them, without again is another change upon the pre- affecting others, and endangering the sent system, and another proof that whole system. Whether the “singleMr Kennedy's bill cannot operate as a ness”of Mr Kennedy's measure is to be detached measure, leaving®“ all the ascribed to his own blindness, or his other forms unchanged.” But the sum- wish to blind others, it belongs not to moning a greater number of jurymen me to decide. Were I to offer an opiis not a step to be taken rashly. I nion on the subject, I should, in all have already shewn that, from the probability, ascribe it in part to both forms of our courts, and the na- causes.—I think that there are many ture of our country, and the state of things intimately connected with the our population, the duties at present operation of the bill, but of which Mr performed by jurymen are necessarily Kennedy had no conception when he burdensome and expensive ; but if the introduced it; and some perhaps of number should be increased-say dou. which he has no conception now ;bled-each juryman would be sum- but I also think, that he could not be moned twice as often as he is now, and so very obtuse, as seriously to intend while giving this increased degree of that the bill should be a " detached attendance, he would be further sub- measure," and that all the other jected to the additional inconveniencies “ forms” and “ principles” of our sysand hardships to whiclf I have alrea- tem were really to be left"unchanged." dy alluded. The accused too would Indeed, his own speech shewed that suffer by this change, for instead of he meditated ulterior operations against having to inquire into the characters the criminal law of Scotland ; and so of only 45 persons, the extent of his extended were his plans, that even the necessary inquiries, preparatory to his new modelling of the act 1701, (the trial, would be doubled.
Scotch Habeas Corpus), an undertaMueh more might be stated in ob- king sufficient of itself to appal most jection to Mr Kennedy's bill ;--but men of ordinary sensibility, was to enough has been already said, to shew form a comparatively trifling incident that it cannot exist at all as a “ de, in his campaign. He announced, (as tached" " single” measure ; and that the newspaper reports of his speech even the reviewers, who wish it to be inform us,) that he should " incidentconsidered in that light, cannot obvi- ally involve the revision of the provisions ate the objections to it, except by pro- of the act (1701,) in the motion which posing further changes in themselves he had to submit to the House !!" He equally objectionable. The reason is was afterwards wisely advised to abanobvious wny the reviewers wish to don that plan for the present, as there persuade the public, “ if they will was no chance of his being allowed to only take it so, that the bill is only effect a breach of the bulwarks of the a detached measure, and leaves every system at all, except under the mask thing else, both in form and principle, of a “single” “ detached” measure,unchanged. They know that every but that mask has now been removed,
and the intentions of the assailant, as sarily the judge who is to try the cases well as the real character and neces- in which these jurymen are to act. In sary consequences of his operations, the second place, that at the time the have been exposed.
judge makes this selection, he has as But after all, what is to be gained yet no knowledge of any of the cases to be by adopting Mr Kennedy's bill? What tried at that circuit. Indeed it generally recommendation has it either theore- happens that several of the cases tried tical or practical?-What additional at the circuits are for offences which benefit is it to bestow? or, what evil is had not even been committed, far less it to remove? -All that either Mr Ken- investigated, when the list of 45 was nedy or the reviewers have been able prepared. In the third place, that to say upon this subject is, that the the superintendance of the judge is a system proposed by Mr Kennedy, is, check against the corruption of inferior in theory, better calculated to obtain officers, and a security for the return pure and impartial juries, than the of proper jurymen ; or, as the old law system now in use among us. Were hath it, “the best and most worthie of it of any consequence to argue upon the countrie.” * the theory where the practice is con- This check operates in a variety of clusively in my favour, I should de- ways. If the fifteen jurymen who try mur to this proposition. I maintain, the case, should (as Mr Kennedy prothat the theory of our system was a poses,) be chosen by ballot, then the priori calculated to ensure the practi- efforts of the parties would be directed, cal benefits which have been found to in the first place, against the honesty result from it. Our system is founded or vigilance of the inferior officers mainly upon these principles: 1st, That who are employed in making up the much must be trusted to the purity of list of 45, or the greater lists from our judges ;- this is a principle adopt. which that one is extracted. To couned in every system of criminal law,- teract, to a certain extent, this evil, and without which we could not pro- a very extended right of peremptory ceed a single step: 2d, That in pre- challenge becomes necessary, and not paring the lists of jurymen, the su- the limited challenge proposed by Mr perintendance and control is most Kennedy ; but this cannot be an efsafely vested in the judge, as being fectual antidote, because the party the farthest removed from the feelings who has been most successful in the and prejudices of the parties, and from intrigues of the initiatory proceedings, the possibility of corruption. This is having a right of challenge equally exa most important principle ; for where tensive with that of his adversary, still any part of the procedure is entrusted retains the ascendency. But with us exclusively to inferior officers, the there is no temptation to the parties chance of corruption in that point is to make any such attempts, for the increased. It is for this reason that judge to whom neither of them has our law has taken care to exclude the access on the subject of the list of asinterference of both parties, by de- size, and who cannot possibly have any claring that the list of 45 « shall be personal interest in the matter, checks made up by the clerk of court at the the proceedings at different stages, and sight of one of the Lords.” This is by the final act of selecting the fifteen, what the reviewers represent as an may defeat any petty advantage which objectionable power, enabling the the artifices of either party may have judge who goes the circuit, to pack acquired to him in the course of the prethe 45 out of which he is afterwards vious proceedings, weresuch a thing posto select the 15. But they do not sible. Accorilingly, in England, where seem to be aware, that, in the first the matter is conducted somewhat in place, the judge who selects the 45 in the manner proposed by Mr Kennedy stated proportions from the lists sent and the reviewers, we hear constant in by the two or three counties com- complaints (whether well or ill foundprehended in the circuit, is not neces- ed, I cannot say,) as to the alleged
• Treatise of Crimes and Judges in Criminal Causes, by Sir John Skene; also, « Short Form of Justiciars Air.” The reviewers have remarked, that “ the qualification for a juror is so low as to include almost every person of any substance, whether landlord or tenant." I will bet odds, (a set of your Magazine against a set of the Edinburgh Review,) that the writer of the above passage cannot, without referring to his books, tell you what the qualification for a juror" really is.
system of packing of juries ; and the which, in Scotland, the judge knows very book which the reviewers have nothing till it is disclosed by the witselected as a text for the present dis nesses, in presence, at once, of him and cussion, is a Treatise on the ELEMENTS the jury. The jury, be it remembered, of that system of packing! whereas with are all solemnly sworn, which is a suffius there are no such complaints; the cient security, especially where their packing of juries has no place among province is so limited; and if the judge us, either in fact or in fancy ; nor is it wished to pack them, he must proceed easy to conceive how it could find a by selecting those whom he thought place, for the system on which we pro- regardless of their oaths, a supposition ceed puts it completely out of the too absurd to be entertained for a mopower of the parties to influence, direct- ment, and which is sufficiently conly or indirectly, the impannelling of a tradicted by the reviewers themselves, single juror. The notion of the judge when they say, that “it is practically having an interest or inclination to felt and understood to be a circumstance pack juries in Scotland, is quite pre- favourableto a person'scharacter and staposterous. All cases of treason are tried tion, that the judge approves of him as on the law of England; all cases of a juryman,” a fact which speaks volumes right between the crown and the sub- in favour of the purity of our system. ject are tried in Exchequer; all cases I have already said, that there is of libel are tried in the Court of Ses- no practical evil to be remedied by sion. Almost all the cases tried in the this bill. Cases of packed juries, of Court of Justiciary and at circuits, are innocent men condemned, and so forth, cases of felony, thefts, robberies, mur- (which would form the only excuse ders, &c. In the trial of such cases, for the measure,) are not more nuwhat “unity of taste and principle" merous under our present system, than can exist to form a suspicious and dan- they are in England under the system gerous “ bond of attachment” between which Mr Kennedy proposes to introthe judge and individual jurymen, as duce. In fact, we have no such cases hinted at by the reviewers ? Besides, at all. This is a sufficient objection it should be remembered, that the to the measure-it can do no good form of proceeding in Scotland is such, there is no evil to be remedied—Why that even in cases where the crown or experiment upon a system so perfect ? the government may be supposed to The reviewers see the full force of this have a particular interest, the preju- argument, and they try to evade it by dices or biases of the jury cannot ope saying, that the absence of all ground rate. It is the primary province of of complaint is the reason why the the court to determine whether the present time should be selected for maacts set forth amount to the crime king a change which is to guard against charged; this is done by a solemn writ- possible evils hereafter. It is quite ten judgment, and the jury have after- plain, that this argument may be adwards to determine, merely whether vanced in support of every experiment, the accused committed those acts. and that the more absurd, and visionThe judge, therefore, has no interest ary, and useless the experiment is, the to pack the jury, for their decision can better will this argument apply to it. be swayed only by the evidence, of But the reviewers seeing the folly of
* This form of proceeding also affords a sufficient answer to the argument drawn by the reviewers, from the power of the Court to take cognizance of new offences without the intervention of any statute. The juries have nothing to do with this matter—they can neither aid nor obstruct the court in the exercise or abuse, (if such a suggestion is to be made) of this power; for before the case is remitted to the jury, the Court must decide whether the facts charged amount to a crime, and the jury have only to determine whether the proof sufficiently applies the facts to the accused. Talking of this power of the Court to take cognizance of new offences, the reviewers say, that it “ seems scarcely consistent with an accurate regard to the proper limits of judicial and legislative power ;" and they say, that there are some important modern examples" of its having been exercised. It is presumed, that this remark must apply to the cases of illegal combination to raise the rate of wages. In the first of these cases, (Taylor and others, 1808,) the criminality of the acts, and the right of the Court, were maintained with much zeal and ability, but without success, by Mr Henry Cockburn, then a crown counsel. In the case of Falhouse, Wilson and others, (1818,) the cause of the accused was pleaded with equal zeal and ability, and equal want of success, by the same learned gentleman, so that it was not without much deliberation and argument that the law on this point was decla. red, and the declaration of it has been attended with the best effect.
this argument, draw from their stores “ For," as Sir George Mackenzie of historical knowledge, in order to observes, « it was thought too se make out a case of practical evil. They vere that the king's advocate, or the go back to the days of the Stuarts, to party accuser, should have the naming the “ cruel prosecutions suffered du- of the assizers.” It was in virtue of ring the twenty or thirty years prece- the power vested in the prosecutor, . ding the Revolution," and they say, to name the 45, that the Earl of Dun“ one of the most admonitory and bar acted; and accordingly Lord Hailes alarming circumstances, in the history does not accuse the judges, but the of these horrible scenes, is, that to a prime minister, of packing the jury. great extent they were acted in our That power was taken away from the Supreme Criminal Court; that the prosecutor, and for a century and a' murders there committed had often half, in the course of which the counthe formal authority of a verdict, and try has been visited with Revolutions, that these verdicts were pronounced Rebellions, and troubles, it has been by jurymen SELECTED, AS AT THIS vested in the judge, without any evil MOMENT, BY THE COURT. It cannot having been experienced from it... be denied that these are facts.” The The next case quoted by the rereviewers then refer to the case of cer- viewers, is that of Stewart, tried in tain Presbyterian clergymen, prosecu- 1752, for the murder of Campbell of ted in 1605, under the direction of the Glenure ; and the allegation in regard Earl of Dunbar, who, in spite of the to that case is, that, “ though guilty, popular feeling at that time, contrived he was himself unlawfully slain ;" that to pack together 45 jurymen, who were “ reason and justice, low and form, in some degree in his interest, or un- argument and fact, were all equally der his influence, and by this means outraged.” This ascribes the issue of obtained a verdict against the Presby- the case to a great many causes, altoterians; at least, this is what we are gether independent of the jury, whose desired to infer from the private letter verdict is completely supported by of Sir Thomas Hamilton, then Lord the evidence admitted on the trial; Advocate, and the commentary on that indeed, the fact that the jury were letter by Lord Hailes, who says, “We unanimous, is a sufficient proof of see here the Prime Minister, in order to this. The reviewers allege that three obtain a sentence agreeable to the king, of the jurors dissented, but were overaddress the judges with promises and awed ; there is, however, no authority threats, pack the jury, and then deal for this statement, and the only author with them without scruple or cere. who records such a rumour, expresses mony." But the reviewers think them- his own disbelief of it... selves a great deal wiser than Lord. The next case referred to by the reHailes, and far deeper read in the his- viewers, is one mentioned by Maclautorical law of the country, than that rin, who tells an absurd story of 14 distinguished lawyer and historian jurors having passed a vote to acquit was. They accordingly supply some a man, and the fifteenth having then reflections which had escaped his lord- set to work, and prevailed on them to ship. “He might have added," say alter the verdict. The reviewers say they, “ for this is the proper use of the that Maclaurin heard of this, “ plainexample, that in SO FAR AS REGARDS ly on authority which he believed ;": THE NOMINATION OF THE JURY, THE but they give no further explanation, COURT OF JUSTICIARY IS CONSTITU- and no reference to the part of his TED AT PRESENT EXACTLY AS IT WAS work, where the story is recorded.. THEN." What deplorable ignorance! But upon turning to an obscure note Do the reviewers not know, that in in the Appendix, (p. 771,) the reader 1605 the prosecutor (not the judge) will there find the whole of this absurd made up the list of 45, and summon- story, and will see that it rests upon ed them? That this power continued the worst possible authority, namely, down to the middle of the reign of the tale of the accused and convicted Charles the Second, when an act was culprit, whose name even is not given. passed, depriving the prosecutor of Such is the meagre and inapplicable the power, and vesting it in the judge? catalogue of cases cited by the review
• Observations on the Act 1587, chap. 88. +" A Supplement to the Trial of James Stewart, by a By-stander." Lond. 1753.