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 now 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 66 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 a verdict 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 "But all other opinions on this subject are superseded by the authority of one, who, of all who ever lived, had the best opportunities of knowing the exact use to which this power of the judge was capable of being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 Sir George Mackenzie's "valuable treatise," but of the most important events in the history of our law, which occurred during the days of that distinguished personage, for whom they profess so much respect. 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 reviewers, 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 statute 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 author 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 wouldhave 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, that it is only in regard to the power of challenge that the passage above quoted from Sir George's works is erroneous, or that Mr Hume states it to be so; but the reviewers, understanding nothing about the matter, tried to put Mr Hume's observation into the 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 mention whatever of a right of challenge. But having thus exposed the ignorance 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 reviewers really mean to say that Sir George thought it right that the prisoner should have thirty peremptory challenges, and the prosecutor should have none?-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 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 peremptory 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 candour, 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 347. Sir George Mackenzie's works, vol. II. p. + Mackenzie's "Laws and Customs of Scotland in Matters Criminal." " Assizes." Mr Hume. VOL. XI. L Title of of the interest of the country, and especially of its judicial establishments which belongs to his office, informed the people of Scotland of the attempt which was making to innovate on their system of criminal law, by one whom they might naturally have expected to have felt a well-grounded pride in its purity and its excellence. It is impossible to figure any measure in which the people of Scotland, and especially the country gentlemen, could be more deeply concerned. They have a direct interest in every thing which relates to the administration of the criminal law, under which they live; and they have, if possible, a still more direct interest in every thing which relates to those duties connected with the criminal law which it belongs to them to discharge. They therefore felt the obligation they were under to the Lord Advocate for informing them of the measure, and of its probable consequences; and they lost no time in taking the matter into their consideration. The reviewers have sneered at the Lord Advocate's conduct in communicating to the counties his own opinion of the effects of the bill; but it is impossible not to see that this sneer is occasioned by the invincible power of those reasons by which his lordship's opinion was supported. The counties of Scotland were entitled to trust that the Lord Advocate, the first law officer of the country, would watch over the judicial establishments of Scotland, and protect them against encroachment-they were entitled to the aid of his experience and knowledge, and to rely on his as sistance and co-operation, whenever it became necessary to resist the machinations of rash, speculative, theoretical legislators-the most dangerous of all visionary schemers. But while the Lord Advocate communicated his own opinion of Mr Kennedy's bill, and his own reasons for opposing it, he added, "though my own mind is made up against the policy of the proposed provision, I do not desire to be understood as wishing unduly to influence the county gentlemen in the decision which they may form regarding it, but merely to point out some of the probable consequences, so as there may not subsequently exist any just cause of complaint, if, when the act is put in force, such inconveniences should be found to result from it." ways alive to the real interests of their The county gentlemen, who are alcountry, and whose sagacity cannot be overreached by the flimsy eloquence of a self-sufficient inexperienced legislator, or the flippant remarks of a peevish reviewer, saw the matter in its true light, and with very few excep tions, all the counties of Scotland passed resolutions condemnatory of the bill. number of inconsistent reasons for this The reviewers have given a uniform opposition of the counties of Scotland to Mr Kennedy's bill. In one place (p. 206) they ascribe it almost entirely to the "threatened addition to their own personal trouble:" in another place (p. 177) they ascribe it entirely to "their sympathy with the possessors of power"-they deny that' yet been made to it; and they assert any respectable opposition" has that they "never remember any subject on which intelligent men, who gave their minds to it candidly_and without party feeling, were nearly so unanimous.' ly the unanimity was all against the It may be so, but surebill; for in no one county, or public body of any description, was there a single resolution passed in favour of it; while, as already mentioned, in almost every county in Scotland resolutions were passed against it. But, say the reviewers, the opposition was merely by the "FREEHOLDERS of Scotland, who, having received from the Lord Advocate "a signal to rise against it," "called meetings," &c. and then the reviewers launch into their favourite theme of invective against the "freeholders of Scotland," and "the unfortunate system on which the elective franchise among us depends," and the reviewer exclaims, that it is not worth while for him, a "man of sense, to waste his leisure" on the subject. reviewer's spleen oozing out, mingled Now, in all this, we again see the with his ignorance. Every person in The only exceptions noticed by the reviewers are three, viz. Lanark, where the matter was discusssed; and the feeling was so strong against the bill, that all the power of the Hamilton faction, so predominant in that county, barely prevented resolutions from being passed against it. The matter was referred to a committee as a sort of neutral course. Kirkcudbright and Wigton did nothing. I could, if necessary, account for this apparent supineness in these two counties. Scotland, who is not an Edinburgh reviewer, knows perfectly well that not a single meeting was called in any county, to consider Mr Kennedy's bill, and not a single resolution of freehold ers passed upon the subject; that the matter was brought before the several counties, at the stated annual meetings of the 30th of April; and that these are not meetings of Freeholders at all, but meetings of a much more extensive kind-meetings of Commissioners of Supply, &c. comprehending, no doubt, almost all the freeholders, but comprehending a vast number of other persons also; so that the state of the elective franchise, and the dispositions of the freeholders, whether good or bad, had nothing to do with the matter. The resolutions were the result of the strong conviction of the impolicy of the bill, entertained in almost every county in Scotland, by those most interested in the matter to which it related. Even in those counties where the influence of Mr Kennedy's political friends prevails, the people did not refrain from expressing their sentiments, -for instance, the county of Argyll, which is particularly mentioned by the reviewers. In that county, as every one knows, the freeholders are represented in Parliament by an opposition member unanimously returned; and the prevailing and unresisted power in that county, is the individual by whose breath MR KENNEDY is seated in the House of Commons-yet, at the stated annual meeting in that county, and within the very burgh which Mr Kennedy represents in Parliament,* resolutions condemnatory of the bill were unanimously passed, and a petition against it resolved upon-so strong and universal was the feeling. It is truly disgusting to hear a pert and ignorant reviewer (at all events, there can be no harm in calling him an ignorant one, since we have already proved him to be so) uttering such unmeasured expressions of condemnation and affected contempt of the resolutions passed by the gentlemen of all the counties of Scotland, as the following:-" In every instance they seem to have fallen into some of those deplorable absurdities, which must always mark the statements of men who are speaking under the double confusion of neither knowing what they are discoursing about, nor what it is that they themselves wish to say." As an example in support of this observation, the reviewer quotes a resolution of the county of Dumbarton, (which he obviously does not understand,) founded on the terms of the articles of union. The resolution (fraught with sound reflection and legal knowledge,) which has drawn forth this cutting, or rather hashing remark from the arrogant reviewer, did, however, receive the sanction, and, if I mistake not, was the production of one of the most distinguished and experienced lawyers of whom Scotland can boast; an individual whose superior wisdom and penetration, in all matters relating to the judicial establishments of Scotland, have, for more than half a century, been universally acknowledged and admired. In the other counties, there was no want of ability and intelligence to discuss the merits of Mr Kennedy's bill; and if any information of a legal or technical nature was required, there were in all the counties professional gentlemen well qualified to give that information. It cannot be supposed that Mr Kennedy is the only intelligent country gentleman in Scotland; and it is to be hoped that there are a great many who better understand the subject of his bill. Such, however, is the arrogance of the reviewers, that they cannot even treat with respect any opinion-let it come from what quarter it may-which differs from their own. And when, as frequently happens, they are unable to cope with opinions which they are forced to encounter, they discharge their duty to their own perfect satisfaction, by merely describing these opinions as "deplorable absurdities.' But it is needless to say any more on the subject of the resolutions passed by the counties-the sense of the county gentlemen has been decidedly expressed, and nothing can more clearly shew the weakness and impolicy of Mr Kennedy's bill, than the fact, that it is attempted to be forced through against the wishes and opinions of those without whose wishes and opinions no alteration of the kind contemplated is excusable. DETECTOR. • Inverary is also one of the towns in which the circuit courts are held. |