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I have already remarked, that any liberty to say, that theoretically, this error in the formation of a written power seems much more objectionable verdict, entitles the accused, though than the power against which Mr found guilty, to be set at liberty. It Kennedy's bill is directed. The judges is therefore proper, that in every jury in England no doubt have the power there should be at least one person to remand juries, and long practice whose education and habits qualify has now placed this matter on a proper him for the duty of committing the footing in that country; but if we look verdict to paper in proper form. And back to the records of their State prowhen the julge names the 15, he takes secutions, we will find innumerable care that there shall be one such per- complaints founded on the abuse of son in every jury. If, on the other the power to remand juries';' and so hand, the jury were to be chosen by jealous were our ancestors of any in ballot, it might frequently happen that terference of the court with the verdict none of the 15 could perform this duty of the jury, that they required the correctly; for with us there are no verdict to be written in perfect seclipersons (as there are in England) who sion, and declared that when once writo make a trade and livelihood of being ten it should be unalterable. But in jurymen; and theguilty prisoner would the present view of the case, it is sufa always challenge the best and most ficient to observe, that the very prointelligent jurymen. To this the re- posal of these remedies is an admission, viewers answer, that “it is notorious, that Mr Kennedy's bill is to bring that it has been often proposed to put along with it new evils, for which fresh an end to them (written verdicts) 'al- remedies must be provided by other together; so that it would be a récom- hands; and this just confirms my asa mendation of this bill, if it hastened sertion, that the bill cannot exist as a the period of their total abolition.” simple detached measure that it canNow, I confess that I never before not operate along with the other parts heard of this notorious proposal. I of our present system,-and that we should like to know by whom it was must therefore be prepared to launch made. At all events, the mere fact of into a boundless sea of changes, or we a thing having beeu proposed, is no must resist the bill in toto. reason why it should be adopted or The system of chusing a jury by encouraged. It is notorious, that it has ballot would bring along with it many been often proposed to put an end to the other evils besides the one already British Constitution altogether, and to mentioned, and not the least of these introduce annual parliaments and uni- would be the great inconvenience it versal suffrage; but it does not thence would occasion to jurymen. The perfollow, that it would be a recommenda- sons on whom the duty of jurymen tion of any measure, that it would has- devolves in Scotland, perform that ar: ten the period of the total abolition of duous and important duty with prompthe British Constitution. But, fur- titude and fidelity. Their gratuitous ther, it will be observed, that this ar- exertions deserve the highest applause, gument of the reviewers is quite hostile and I fear the best days of Scotland's to the notion that Mr Kennedy's bill independence will have passed, when is a “simple detached measure," which the country gentlemen and yeomen is not to interfere with the rest of our cease to perform gratuitously and present system, but, on the contrary, cheerfully those services to the comto leave " the whole of its forms and munity which, as magistrates, as juryprinciples unchanged." Another re men, as constables, as soldiers, and in medy proposed for the evil now ał. a thousand other capacities, they now luded to, is to give the Judge power perform. It should therefore be an obto remand the jury. I must take the ject of the utmost care of the legislature

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In England there are persons who make a livelihood by being called to act as ju. rors. In Scotland the duty is performed rather at an expense to the juryuan, consequently the Juries must be more independent,—for it is the interest of the paid jury man to make himself useful and agreeable to those who have the power to give him his Jivelihood, or deprive him of it. I say that the duty is performed in Scotland at an expence to the jurymen, because they have to travel a great distance to attend the cir. cuits, and have to maintain themselves for several days, and they receive nothing. In Edinburgh, they receive half-a-guinea, which is quite insufficient to indemnify then for loss of time, and which, in fact, they almost always bestow on charitable objects or institutions.

not to increase those duties in an unrea-. the country, or are the parties, to be ionale 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 juez 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 the best piead før bim in every stage of the greatest quantity of honesty and intele te po precedings ; we have a greater num- ligence that can be extracted out of the berabe ber of jurymen in each case, our coun- list." Surely a ballot is the least cere med tty 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
kus towns, consequently the duty exercised as the reviewers propose, or
pimes more frequently round to each as the guilty prisoners would wish,
of the jurymen, and they have to would convert the uncertainty into im-
travel from a great distance to attend possibility.
the circuit courts

. At present the judge Nor are these the only ways in which fut 1 e the circuit takes care to apportion Mr Kennedy's bill would operate to is 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; there rious than that this is not the fact;" fore they would separate their chalbut) 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 indictja 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 efDEN, 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 gaíte 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, liet 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 itdoes, the names of the whole be 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

their interest answer to his name, in the event of his not to make themselves unpopular.” being ballotted. The reviewers see this bit possible to conceive a more arti- objection, and they try to meet it; but keial antidote to a positive evil? Is it how do they try to meet it? why, by thing 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 insertist, in one indictment, of several charges against the same criminal. It is, however, bighly proper that the measure of punishment should be proportioned to the extent of nel 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

accidentally acquired a knowledge of a single offence, but have the means of detect13 Ter; delinquency

. Suppose, however, that both the principles of separation above Baded to should be applied to a case which is neither hypothetical nor old of occurrence. 4 gang of thieves, in the course of a few nights, perform ten acts of thefi, 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 She i to separate all these acts and prisoners would require no fewer than sixty in

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dictments

I have already remarked, that any liberty to say, that theoretically, this error in the formation of a written power seems much more objectionable verdict, entitles the accused, though than the power against which Mr found guilty, to be set at liberty. It Kennedy's bill is directed. The judges is therefore proper, that in every jury in England no doubt have the power there should be at least one person to remand juries, and long practice whose education and habits qualify has now placed this matter on a proper him for the duty of committing the footing in that country; but if we look verdict to paper in proper form. And back to the records of their Státe prowhen the julge names the 15, he takes secutions, we will find innumerable care that there shall be one such per- complaints founded on the abuse of son in every jury. If, on the other the power to remand juries; and so hand, the jury were to be chosen by jealous were our ancestors of any ind! ballot, it might frequently happen that terference of the court with the verdict none of the 15 could perform this duty of the jury, that they required the correctly; for with us there are no verdict to be written in perfect sechua persons (as there are in England) who sion, and declared that when once writd make a trade and livelihood of being ten it should be unalterable. But in jurymen; and theguilty prisoner would the present view of the case, it is sufst always challenge the best and most ficient to observe, that the very prointelligent jurymen. To this the re- posal of these remedies is an admission, viewers answer, that “it is notorious, that Mr Kennedy's bill is to bring that it has been often proposed to put along with it new evils, for which freski an end to them (written verdicts) al- remedies must be provided by other together; so that it would be a récom- hands; and this just confirms my as mendation of this bill, if it hastened sertion, that the bill cannot exist as a the period of their total abolition.” simple detached measure,-that it canNow, I confess that I never before not operate along with the other parts heard of this notorious proposal. 'I of our present system, -- and that we should like to know by whom it was must therefore be prepared to launch made. At all events, the mere fact of into a boundless sea of changes, or we a thing having beeu proposed, is no must resist the bill in toto. reason why it should be adopted or The system of chusing a jury by encouraged. It is notorious, that it has ballot would bring along with it many been often proposed to put an end to the other evils besides the one already British Constitution altogether, and to mentioned, and not the least of these introduce annual parliaments and uni- would be the great inconvenience it versal suffrage; but it does not thence would occasion to jurymen. The perfollow, that it would be a recommenda- sons on whom the duty of jurymen tion of any measure, that it would has- devolves in Scotland, perform that arten the period of the total abolition of duous and important duty with prompthe British Constitution. But, fur- titude and fidelity. Their gratuitous ther, it will be observed, that this ar- exertions deserve the highest applause, gument of the reviewers is quite hostile and I fear the best days of Scotland's to the notion that Mr Kennedy's bill independence will have passed, when is a “simple detached measure," which the country gentlemen and yeomen is not to interfere with the rest of our cease to perform gratuitously and present system, but, on the contrary, cheerfully those services to the comto leave " the whole of its forms and munity which, as magistrates, as jury. principles unchanged." Another re men, as constables, as soldiers, and in medy, proposed for the evil now al- a thousand other capacities, they now luded to, is to give the Judge power perform. It should therefore be an obto remand the jury. I must take the ject of the utmost care of the legislature

in England there are persons who make a livelihood by being called to act as you. rors..-In Scotland the duty is performed rather at an expense to the juryunan, conse quently the Juries must be more independent,-for it is the interest of the paid' jury man to make himself useful and agreeable to those who have the power to give him his livelihood, or deprive him of it. I say that the duty is performed in Scotland at

cir. cuits, and have to maintain themselves for several days, and they receive nothing. In Edinburgh, they receive half-a-guinea, which is quite insufficient to indemnify them for loss of time, and which, in fact, they almost always bestow on charitable objects or institutions.

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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 intelor proceedings; 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 cenas 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 im travel 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; there rious 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 efa men, 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 insertion, in one indictment, of several charges against the same criminal. It is, however, 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 not 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 gang 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 reset ; to separate all these acts and prisoners would require no fewer than sixty ikdictments.

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of oply 4-5 persons, the extent of his extended were his plans, that even the

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 sent is of justice, Mr Kennedy's boon of pe- impressed the stamp of utility. It is bed's remptory challenge, is indeed a de quite plain, that to give any effect at tuched 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 the con 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 i draw lots for the first trial! This limit- 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 uumber 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--reach 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“ forins” and “principles of our sys, and hardships to which 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 necessary inquiries, preparatory to his new modelling of the act 1701, (the trial, would be doubled.

Scotch Habeas Corpus), an undertaMuch 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 forn a comparatively trifling incident that it cannot exist at all as a “ de- in his campaign. He annouuced, (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“ incident considered 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 why 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,

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