and the intentions of the assailant, as well as the real character and necessary consequences of his operations, have been exposed. But after all, what is to be gained by adopting Mr Kennedy's bill? What recommendation has it either theoretical or practical?-What additional benefit is it to bestow? or, what evil is it to remove? All that either Mr Kennedy or the reviewers have been able to say upon this subject is, that the system proposed by Mr Kennedy, is, in theory, better calculated to obtain pure and impartial juries, than the system now in use among us. Were it of any consequence to argue upon the theory where the practice is conclusively in my favour, I should demur to this proposition. I maintain, that the theory of our system was a priori calculated to ensure the practical benefits which have been found to result from it. Our system is founded mainly upon these principles: 1st, That much must be trusted to the purity of our judges;-this is a principle adopted in every system of criminal law,and without which we could not proceed a single step: 2d, That in preparing the lists of jurymen, the superintendance and control is most safely vested in the judge, as being the farthest removed from the feelings and prejudices of the parties, and from the possibility of corruption. This is a most important principle; for where any part of the procedure is entrusted exclusively to inferior officers, the chance of corruption in that point is increased. It is for this reason that our law has taken care to exclude the interference of both parties, by declaring that the list of 45" shall be made up by the clerk of court at the sight of one of the Lords." This is what the reviewers represent as an objectionable power, enabling the judge who goes the circuit, to pack the 45 out of which he is afterwards to select the 15. But they do not seem to be aware, that, in the first place, the judge who selects the 45 in stated proportions from the lists sent in by the two or three counties comprehended in the circuit, is not neces sarily the judge who is to try the cases in which these jurymen are to act. In the second place, that at the time the judge makes this selection, he has as yet no knowledge of any of the cases to be tried at that circuit. Indeed it generally happens that several of the cases tried at the circuits are for offences which had not even been committed, far less investigated, when the list of 45 was prepared. In the third place, that the superintendance of the judge is a check against the corruption of inferior officers, and a security for the return of proper jurymen; or, as the old law hath it, "the best and most worthie of the countrie."* This check operates in a variety of ways. If the fifteen jurymen who try the case, should (as Mr Kennedy proposes,) be chosen by ballot, then the efforts of the parties would be directed, in the first place, against the honesty or vigilance of the inferior officers who are employed in making up the list of 45, or the greater lists from which that one is extracted. To counteract, to a certain extent, this evil, a very extended right of peremptory challenge becomes necessary, and not the limited challenge proposed by Mr Kennedy; but this cannot be an effectual antidote, because the party who has been most successful in the intrigues of the initiatory proceedings, having a right of challenge equally extensive with that of his adversary, still retains the ascendency. But with us there is no temptation to the parties to make any such attempts, for the judge to whom neither of them has access on the subject of the list of assize, and who cannot possibly have any personal interest in the matter, checks the proceedings at different stages, and by the final act of selecting the fifteen, may defeat any petty advantage which the artifices of either party may have acquired to him in the course of the previous proceedings, were such a thing pos sible. Accordingly, in England, where the matter is conducted somewhat in the manner proposed by Mr Kennedy and the reviewers, we hear constant complaints (whether well or ill founded, 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. 66 system of packing of juries; and the very book which the reviewers have selected as a text for the present discussion, is a Treatise on the ELEMENTS of that system of packing! whereas with us there are no such complaints; the packing of juries has no place among us, either in fact or in fancy; nor is it easy to conceive how it could find a place, for the system on which we proceed puts it completely out of the power of the parties to influence, directly or indirectly, the impannelling of a single juror. The notion of the judge having an interest or inclination to pack juries in Scotland, is quite preposterous. All cases of treason are tried on the law of England; all cases of right between the crown and the subject are tried in Exchequer; all cases of libel are tried in the Court of Session. Almost all the cases tried in the Court of Justiciary and at circuits, are cases of felony, thefts, robberies, murders, &c. In the trial of such cases, what "unity of taste and principle" can exist to form a suspicious and dangerous" bond of attachment" between the judge and individual jurymen, as hinted at by the reviewers? Besides, it should be remembered, that the form of proceeding in Scotland is such, that even in cases where the crown or the government may be supposed to have a particular interest, the prejudices or biases of the jury cannot operate. It is the primary province of the court to determine whether the acts set forth amount to the crime charged; this is done by a solemn written judgment, and the jury have afterwards to determine, merely whether the accused committed those acts.* The judge, therefore, has no interest to pack the jury, for their decision can be swayed only by the evidence, of which, in Scotland, the judge knows nothing till it is disclosed by the witnesses, in presence, at once, of him and the jury. The jury, be it remembered, are all solemnly sworn, which is a sufficient security, especially where their province is so limited; and if the judge wished to pack them, he must proceed by selecting those whom he thought regardless of their oaths, a supposition too absurd to be entertained for a moment, and which is sufficiently contradicted by the reviewers themselves, when they say, that “it is practically felt and understood to be a circumstance favourable to a person's character andstation, that the judge approves of him as a juryman," a fact which speaks volumes in favour of the purity of our system. I have already said, that there is no practical evil to be remedied by this bill. Cases of packed juries, of innocent men condemned, and so forth, (which would form the only excuse for the measure,) are not more numerous under our present system, than they are in England under the system which Mr Kennedy proposes to introduce. In fact, we have no such cases at all. This is a sufficient objection to the measure-it can do no good there is no evil to be remedied-Why experiment upon a system so perfect? The reviewers see the full force of this argument, and they try to evade it by saying, that the absence of all ground of complaint is the reason why the present time should be selected for ma king a change which is to guard against possible evils hereafter. It is quite plain, that this argument may be advanced in support of every experiment, and that the more absurd, and visionary, and useless the experiment is, the better will this argument apply to it. 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 whe ther 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 declared, and the declaration of it has been attended with the best effect. 66 this argument, draw from their stores of historical knowledge, in order to make out a case of practical evil. They go back to the days of the Stuarts, to the "cruel prosecutions suffered dutring the twenty or thirty years preceding the Revolution," and they say, one of the most admonitory and alarming circumstances, in the history of these horrible scenes, is, that to a great extent they were acted in our Supreme Criminal Court; that the murders there committed had often the formal authority of a verdict, and that these verdicts were pronounced by jurymen SELECTED, AS AT THIS 11 MOMENT, BY THE COURT. It cannot be denied that these are facts." The reviewers then refer to the case of certain Presbyterian clergymen, prosecuted in 1605, under the direction of the Earl of Dunbar, who, in spite of the popular feeling at that time, contrived to pack together 45 jurymen, who were in some degree in his interest, or under his influence, and by this means obtained a verdict against the Presbyterians; at least, this is what we are desired to infer from the private letter of Sir Thomas Hamilton, then Lord Advocate, and the commentary on that letter by Lord Hailes, who says, "We see here the Prime Minister, in order to obtain a sentence agreeable to the king, address the judges with promises and threats, pack the jury, and then deal with them without scruple or ceremony." But the reviewers think themselves a great deal wiser than Lord Hailes, and far deeper read in the historical law of the country, than that distinguished lawyer and historian was. They accordingly supply some reflections which had escaped his lordship. He might have added," say they," for this is the proper use of the example, that IN SO FAR AS REGARDS THE NOMINATION OF THE JURY, THE COURT OF JUSTICIARY IS CONSTITUTED AT PRESENT EXACTLY AS IT WAS THEN." What deplorable ignorance! Do the reviewers not know, that in 1605 the prosecutor (not the judge) made up the list of 45, and summoned them? That this power continued down to the middle of the reign of Charles the Second, when an act was passed, depriving the prosecutor of the power, and vesting it in the judge? 1 "For," as Sir George Mackenzie observes, it was thought too severe that the king's advocate, or the party accuser, should have the naming. of the assizers." It was in virtue of the power vested in the prosecutor, to name the 45, that the Earl of Dunbar acted; and accordingly Lord Hailes does not accuse the judges, but the prime minister, of packing the jury. That power was taken away from the prosecutor, and for a century and a half, in the course of which the country has been visited with Revolutions, Rebellions, and troubles, it has been vested in the judge, without any evil having been experienced from it. The next case quoted by the reviewers, is that of Stewart, tried in 1752, for the murder of Campbell of Glenure; and the allegation in regard to that case is, that, though guilty, he was himself unlawfully slain;" that reason and justice, law and form, argument and fact, were all equally. outraged." This ascribes the issue of the case to a great many causes, altogether independent of the jury, whose verdict is completely supported by the evidence admitted on the trial; indeed, the fact that the jury were unanimous, is a sufficient proof of this. The reviewers allege that three of the jurors dissented, but were overawed; there is, however, no authority for this statement, and the only author who records such a rumour, expresses his own disbelief of it.† The next case referred to by the reviewers, is one mentioned by Maclaurin, who tells an absurd story of 14 jurors having passed a vote to acquit a man, and the fifteenth having then set to work, and prevailed on them to alter the verdict. The reviewers say that Maclaurin heard of this, "plainly on authority which he believed;" but they give no further explanation, and no reference to the part of his work, where the story is recorded. But upon turning to an obscure note in the Appendix, (p. 771,) the reader will there find the whole of this absurd story, and will see that it rests upon the worst possible authority, namely, the tale of the accused and convicted culprit, whose name even is not given. Such is the meagre and inapplicable catalogue of cases cited by the review Observations on the Act 1587, chap. 88. "valuable Sir George Mackenzie's ers, and surely it is one of the strongest proofs of the purity of our present system, that they have not been able to find ten times as many cases, each of them ten times as applicable to their argument. Let us how advert to some of the authorities or opinions of great men, which the reviewers cite in support of the proposed alteration on our system. First, they quote from an anonymous traveller, who expresses his surprise" at seeing the judge select the 15 jurymen from the list of 45; and his opinion that the 45 should rather "draw lots" for each new pannel. I recollect the case alluded to by that traveller most distinctly; it was the trial of Walter Redpath, for the murder of Andrew Macketney. Messrs Jeffrey and Cockburn were the counsel for the prisoner, and M. Simond was present at the trial, which took place in 1810. The opinion of the court, in point of law, was, that if there was any crime at all made out, that crime was murder; the jury, however, by a plurality of voices, found averdict of culpable homicide only. This is any thing but a proof of the subserviency of Scotch juries to the feelings or opinions of the judge; and it is really ridiculous to quote an anonymous French traveller, as an authority on Scotch criminal law. The next authority referred to is, that of Sir George Mackenzie, whose name is thus introduced. "But all other opinions on this subject are superseded by the authority of one, who, of all who ever lived, had the best opportunities of knowing the exact use to which this power of the judge was capable of being converted. We allude to Sir George Mackenzie, the Lord Advocate of Charles the Second, and of James the Seventh, a man of learning, ability, and experience, who was himself a party in most of the transactions, both political and judicial, which are thought to have stained the character of his age,-who was particularly versant in the practice of our criminal courts, on which he wrote a valuable treatise." I have quoted this eulogy on Sir George Mackenzie, because I mean to shew that, so far from countenancing the views of the reviewers, he was their most decided enemy, and that the reviewers have betrayed a total ignorance, not only of In the second part of Sir George's Vindication of the Government of Scotland, during the reign of Charles the Second, being that part of it which relates to " the forms used in pursuits of treason," there is this passage "Of old, the King's Advocate had the naming of the jury, as being presumed disinterested; yet Sir George prevailed to get an Act of Parliament, whereby the nomination of the jury was referred to the judges. Fifteen of these forty-five only are admitted a sufficient jury, and the defendant is allowed to challenge or reject, without giving any ground or reason for it, any thirty that he pleases of that number, and the fifteen that remain make the jury, and are set by the judge," The re viewers, in their shallow reading, had seen this passage quoted in a note to Mr Hume's Commentaries, with a remark by that author, that of the sta→ tute mentioned by Sir George, there is no trace or vestige save in his own assertion. The reviewers, knowing nothing more of the matter, but wishing to give an air of originality to their remarks, essay as follows:"WE are perfectly aware that this statement is altogether deceptious. Whatever was the case of old,' the Lord Advocate in his day had NOT the power of naming the jury; and Mackenzie did not get such a statute passed, which would have thrown the nomination entirely into the hands of the prisoner. The truth is, that there was never such an act; AND IN HIS TIME, THE JUDGE NAMED THE JURY JUST AS HE DOES NOW." If the au thor of this passage had not been grossly ignorant of the most important of all the statutes regarding our criminal law -the act of regulations, 1672, he would have known, that until the date of that act, the King's Advocate had the power of naming his own jury,, and that Sir George Mackenzie did get that act passed, whereby, as he himself expresses it in the passage above quoted, "the nomination of the jury (that is of the forty-five, for it is to them that the statement relates,) was re * Sir George Mackenzie's Works, vol. II. p. 352. ferred to the judges." The fact is, a that it is only in regard to the power of challenge that the passage above quoted from Sir George's works is er aroneous, or that Mr Hume states it to be so; but the reviewers, understand ing nothing about the matter, tried to put Mr Hume's observation into the a shape of a reflection of their own, and, in doing so, they betrayed their utter ignorance of the most important part of the history of the law. How the mistake regarding the right of challenge ↑ crept into Sir George's work, it is not easy to ascertain, but it is not improbable that it arose out of an imperfect account of some proceeding which had been proposed in relation to some of the trials for treason, of which that division of the work professes to treat; for in the previous part of his Vindication" he alludes to the same act 1672, in these words: "And whereas formerly the King's advocate had the naming of the jury, it is now lodged by act of parliament in the judges," without making any men tion whatever of a right of challenge. But having thus exposed the igno rance of the reviewers, let us next attend to the use they make of the error in Sir George Mackenzie's "Vindication." They say that the error arises from his confounding what he thought right with what he had done;" therefore, say they, the decisive authority of this great man, before whom all others must hide their diminished heads, is in favour of the principle of Mr Kennedy's bill. Do the review ers really mean to say that Sir George thought it right that the prisoner should have thirty peremptory challenges, and the prosecutor should have hone? or, to use their own words, that the nomination should be thrown "entirely into the hands of the prisoner." Could any man seriously think such a system right? Above all, one whom the reviewers describe as "a man of learning, ability, and experience," whose bias was in favour of those views which are natural to a crown lawyer." But the fact is, that if the reviewers had looked into the same author's" valuable treatise" on the criminal law, they would have found 66 his recorded opinion, that juries should be dispensed with altogether, and the judges allowed to decide upon the evidence as well as the law. I wish (says he) that the justices (Lords of Justiciary) were judges both to relevancy and probation, which overture seems most fit and advantageous for these subsequent reasons." Then follow, in full array, no fewer than nine formidable reasons for vesting in the judges all the functions of the jury. It is impossible to conceive any authority more diametrically opposed to the principle of Mr Kennedy's bill and be it remembered, that this is the authority by which, according to the reviewers, "ALL OTHER OPINIONS ON THIS SUBJECT ARE SUPERSEDED." To the authority of Sir George Mackenzie, I beg to add that of an author whom the reviewers describe as "our most accurate writer on the subject;" and whose work was admitted by Mr Kennedy, in his speech in the House of Commons, to be an "excellent commentary on the law of Scotland." That distinguished author, in talking of the alleged advantage of peremp tory challenge, has characterised the notion as "in a great measure a delusion which has sprung from the looking to only one rule in the criminal process, without attending to others;" and in another place he says, "I think it is impossible that any person of can dour, who will attend to our course of trial from the outset to the close, can seriously believe that the prisoner has not every humane attention shewn to him, and all due provision made for his just defence." What more can be expected or required in any system of criminal law? Considering the circumstances which have now been stated, it is not wonderful that the people of Scotland heard with astonishment that Mr Kennedy had announced his intention to bring forward the bill now under consideration. It is probable that many of those most interested in the measure might have remained too long ignorant of it, or at least ignorant of the best means of expressing their sentiments in regard to it, had not the Lord Advocate, in the proper spirit of that watchfulness Sir George Mackenzie's works, vol. II. p. 347. Mackenzie's Laws and Customs of Scotland in Matters Criminal.” Title of "Assizes." + Mr Hume. VOL. XI. L |