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ers, and surely it is one of the strong. Sir George Mackenzie's " valuable est proofs of the purity of our present treatise," but of the most important system, that they have not been able events in the history of our law, which to find ten times as many cases, each occurred during the days of that disof them ten times as applicable to their tinguished personage, for whom they argument.
profess so much respect. Let us now advert to some of the In the second part of Sir George's authorities or opinions of great men, Vindication of the Government of Scotwhich the reviewers cite in support land, during the reign of Charles the of the proposed alteration on our sys- Second, being that part of it which tem. First, they quote from an ano- relates to “ the forms used in pursuits nymous traveller, who expresses his of treuson," there is this passage :“ surprise” at seeing the judge se- “Of old, the King's Advocate had the lect the 15 jurymen from the list of naming of the jury, as being presumed 45; and his opinion that the 45 should disinterested ; yet Sir George prevailrather " draw lots” for each new pan- ed to get an Act of Parliament, wherenel. I recollect the case alluded to by by the nomination of the jury was rethat traveller most distinctly; it was ferred to the judges. Fifteen of these the trial of Walter Redpath, for the forty-five only are admitted a sufficimurder of Andrew Macketney, Messrs ent jury, and the defendant is allowed Jeffrey and Cockburn were the coun- to challenge or reject, without giving sel for the prisoner, and M. Simond any ground or reason for it, any thirty was present at the trial, which took that he pleases of that number, and place in 1810. The opinion of the the fifteen that remain make the jury, court, in point of law, was, that if and are set by the judge.”* there was any crime at all made out, viewers, in their shallow reading, had that crime was murder ; the jury, seen this passage quoted in a note to. however, by a plurality of voices, found Mr Hume's Commentaries, with a rea verdict of culpable homicide only. mark by that author, that of the staThis is any thing but a proof of the tute mentioned by Sir George, there subserviency of Scotch juries to the is no trace or vestige save in his own feelings or opinions of the judge; and assertion. The reviewers, knowing noit is really ridiculous to quote an ano- thing more of the matter, but wishnymous French traveller, as an au- ing to give an air of originality to thority on Scotch criminal law. The their remarks, essay as follows: next authority referred to is, that of Sir “We are perfectly aware that this George Mackenzie, whose name is thus statement is altogether deceptious. introduced. “ But all other opinions Whatever was the case of old,' the on this subject are superseded by the Lord Advocate in his day had not authority of one, who, of all who ever the power of naming the jury; and lived, had the best opportunities of know- Mackenzie did not get such a statute ing the exact use to which this power of passed, which would have thrown the the judge was capable of being converted. nomination entirely into the hands of We allude to Sir George Mackenzie, the prisoner. The truth is, that there the Lord Advocate of Charles the Se- was never such an act; AND IN HIS cond, and of James the Seventh, a man TIME, THE JUDGE NAMED THE JURY of learning, ability, and experience, JUST AS HE DOES Now." If the auwho was himself a party in most of thor of this passage had not been grossthe transactions, both political and ju- ly ignorant of the most important of all dicial, which are thought to have stain, the statutes regarding our criminal law ed the character of his age,—who was -the actof regulations, 1672, he would particularly versant in the practice of have known, that until the date of our criminal courts, on which he wrote that act, the King's Advocate had the a valuable treatise." I have quoted power of naming his own jury, and this eulogy on Sir George Mackenzie, that Sir George Mackenzie did get that. because I mean to shew that, so far act passed, whereby, as he himself exfrom countenancing the views of the presses it in the passage above quoted, reviewers, he was their most decided is the nomination of the jury (that enemy, and that the reviewers have is of the forty-five, for it is to them betrayed a total ignorance, not only of that the statement relates,) was re
* Sir George Mackenzie's Works, vol. II. p. 352.
ALL OTHER OPINIONS ON
ferred to the Judges." The fact is, his recorded opinion, that juries should that it is only in regard to the power be dispensed with altogether, and the of challenge that the passage above judges allowed to decide upon the eviquoted from Sir George's works is er- dence as well as the law. “I wish roneous, or that Mr Hume states it to (says he) that the justices (Lords of be so; but the reviewers, understand- Justiciary) were judges both to releing nothing about the matter, tried to vancy and probation, which overture put Mr Hume's observation into the seems most fit and advantageous for shape of a reflection of their own, and, these subsequent reasons." Then in doing so, they betrayed their utter follow, in full array, no fewer than ignorance of the most important part nine formidable reasons for vesting in of the history of the law. How the mis- the judges all the functions of the take regarding the right of challenge jury. It is impossible to conceive any crept into Sir George's work, it is not authority more diametrically opposed easy to ascertain, but it is not im- to the principle of Mr Kennedy's bill; probable that it arose out of an imper- and be it remembered, that this is the fect account of some proceeding which authority by which, according to the had been proposed in relation to some reviewers, of the trials for treason, of which THIS SUBJECT ARE SUPERSEDED.” that division of the work professes To the authority of Sir George Macto treat; for in the previous part of kenzie, I beg to add that of an author I his “ Vindication” he alludes to the whom the reviewers describe as “our same act 1672, in these words: “And inost accurate writer on the subject;" whereas formerly the King's advocate and whose work was admitted by Mr had the naming of the jury, it is now Kennedy, in his speech in the House lodged by act of parliament in the of Commons, to be an “excellent comjudges,"without making any men- mentary on the law of Scotland.”tion whatever of a right of challenge. That distinguished author, in talking But having thus exposed the igno- of the alleged advantage of peremprance of the reviewers, let us next at- tory challenge, has characterised the tend to the use they make of the er- notion as “in a great measure a deluror in Sir George Mackenzie's “Vin- sion which has sprung from the look dication.” They say that the error ing to only one rule in the criminal arises from “his confounding what he process, without attending to others ;" thought right with what he had done;" and in another place he says, “ I think therefore, say they, the decisive au- it is impossible that any person of canthority of this great man, before whom dour, who will attend to our course of all others must hide their diminished trial from the outset to the close, can heads, is in favour of the principle of seriously believe that the prisoner has Mr Kennedy's bill. Do the review- not every humane attention shewn to ers really mean to say that Sir George him, and all due provision made for his thought it right that the prisoner just defence.” What more can be exshould have thirty peremptory chal- pected or required in any system of crilenges, and the prosecutor should have minal law? none?-or, to use their own words, Considering the circumstances which that the nomination should be thrown have now been stated, it is not won“entirely into the hands of the pri- derful that the people of Scotland heard sɔler." Could any man seriously think with astonishment that Mr Kennedy such a system right? Above all, one had announced his intention to bring whom the reviewersdescribe as “a man forward the bill now under consideraof learning, ability, and experience,” tion. It is probable that many of those “ whose bias was in favour of those most interested in the measure might views which are natural to a crown have remained too long ignorant of it, lawyer.” But the fact is, that if the or at least ignorant of the best means of reviewers had looked into the same expressing their sentiments in regard author's “ valuable treatise” on the to it, had not the Lord Advocate, in criminal law, they would have found 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." “ Assizes,"
+ Mr Hume. Vol. XI.
of the interest of the country, and es- out some of the probable consequences, pecially of its judicial establishments so as there may not subsequently exist which belongs to his office, informed any just cause of complaint, if, when the people of Scotland of the attempt the act is put in force, such inconwhich was making to innovate on their veniences should be found to result system of criminal law, by one whom from it.” they might naturally have expected to The county gentlemen, who are alhave felt a well-grounded pride in its ways alive to the real interests of their purity and its excellence. It is im- country, and whose sagacity cannot be possible to figure any measure in which overreached by the flimsy eloquence the people of Scotland, and especially of a self-sufficient inexperienced lethe country gentlemen, could be more gislator, or the flippant remarks of a deeply concerned. They have a direct peevish reviewer, saw the matter in its interest in every thing which relates true light, and with very few excep. to the administration of the criminal tions, all the counties of Scotland law, under which they live; and they passed resolutions condemnatory of the have, if possible, a still more direct in- bin. The reviewers have given a terest in every thing which relates to number of inconsistent reasons for this those duties connected with the crimi- uniform opposition of the counties of nal law which it belongs to them to dis- Scotland to Mr Kennedy's bill. In charge. They therefore felt the obliga- one place (p. 206) they ascribe it altion they were under to the Lord Advo- most entirely to the " threatened adcate for informing them of the measure, dition to their own personal trouble :" and of its probable consequences ; and in another place (p. 177) they ascribe they lost no time in taking the matter it entirely to “ their sympathy with into their consideration. The review- the possessors of power”- they deny ers have sneered at the Lord Advo- that any respectable opposition" has cate's conduct in communicating to the yet been made to it; and they assert counties his own opinion of the effects that they“ never remember any subof the bill ; but it is impossible not to ject on which intelligent men, who see that this sneer is occasioned by the gave their minds to it candidly and invincible power of those reasons by without party feeling, were nearly so which his lordship’s opinion was sup- unanimous."' It may be so, but sureported. The counties of Scotland were ly the unanimity was all against the entitled to trust that the Lord Advo- bill; for in no one county, or public cate, the first law officer of the coun- body of any description, was there a try, would watch over the judicial esta- single resolution passed in favour of it; blishments of Scotland, and protect while, as already mentioned, in almost them againstencroachment-they were every county in Scotland resolutions entitled to the aid of his experience were passed against it. But, say the and knowledge, and to rely on his as- reviewers, the opposition was merely sistance and co-operation, whenever it by the “ FREEHOLDERS of Scotland, became necessary to resist the machi- who, having received from the Lord nations of rash, speculative, theoretical Advocate “a signal to rise against it," legislators- the most dangerous of all “called meetings,” &c. and then the visionary schemers.
reviewers lauoch into their favourite But while the Lord Advocate com- theme of invective against the “freemunicated his own opinion of Mr Ken- holders of Scotland,” and “ the unfornedy's bill, and his own reasons for tunate system on which the elective opposing it, he added, “ though my franchise among us depends," and the own mind is made up against the po- "reviewer exclaims, that it is not worth licy of the proposed provision, I'do while for him, á man of sense, to not desire to be understood as wishing waste his leisure" on the subject. unduly to influence the county gentle- Now, in all this, we again see the men in the decision which they may reviewer's spleen oozing out, mingled form regarding it, but merely to point 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 re- what they are discoursing about, nor viewer, knows perfectly well that not what it is that they themselves wish & single meeting was called in any to say." As an example in support county, to consider Mr Kennedy's bill, of this observation, the reviewer quotes and not a single resolution of freehold a resolution of the county of Dumbartrs passed upon the subject; that the ton, (which he obviously does not unmatter was brought before the several derstand,) founded on the terms of the counties, at the stated annual meetings articles of union. The resolution of the 30th of April; and that these are (fraught with sound reflection and lenot meetings of Freeholders at all, but gal knowledge,) which has drawn forth meetings of a much more extensive this cutting, or rather hashing remark kind-meetings of Commissioners of from the arrogant reviewer, did, howSupply, &c. comprehending, no doubt, ever, receive the sanction, and, if I almost all the freeholders, but com- mistake not, was the production of one prehending a vast number of other of the most distinguished and experipersons also ; so that the state of the enced lawyers of whom Scotland can elective franchise, and the dispositions boast; an individual whose superior of the freeholders, whether good or wisdom and penetration, in all matters bad, had nothing to do with the mat- relating to the judicial establishments ter. The resolutions were the result of of Scotland, have, for more than half a the strong conviction of the impolicy century, been universally acknowledgof the bill, entertained in almost every ed and admired. county in Scotland, by those most inn In the other counties, there was no terested in the matter to which it rela- want of ability and intelligence to disted. Even in those counties where the cuss the merits of Mr Kennedy's bill; influence of Mr Kennedy's political and if any information of a legal or friends prevails, the people did not re- technical mature was required, there frain from expressing their sentiments, were in all the counties professional
- for instance, the county of Argyll, gentlemen well qualified to give that which is particularly mentioned by information. It cannot be supposed the reviewers. In that county, as every that Mr Kennedy is the only intellione knows, the freeholders are repre- gent country gentleman in Scotland ; sented in Parliament by an opposition and it is to be hoped that there are a member unanimously returned ; and great many who better understand the the prevailing and unresisted power in subject of his bill. Such, however, is that county, is the individual by whose the arrogance of the reviewers, that breath Ma Kennedy is seated in the they cannot even treat with respect House of Commons--yet, at the stated any opinion-let it come from what annual meeting in that county, and quarter it may–which differs from within the very burgh which Mr Kene their own. And when, as frequently nedy represents in Parliament,* resolu- happens, they are unable to cope with tions condemnatory of the bill were opinions which they are forced to enunanimously passed, and a petition counter, they discharge their duty to against it resolved upon-so strong and their own perfect satisfaction, by mereuniversal was the feeling.
ly describing these opinions as “deIt is truly disgusting to hear a pert plorable absurdities.” and ignorant reviewer (at all events, But it is needless to say any more there can be no harm in calling him an on the subject of the resolutions passignorant one, since we have already ed by the counties--the sense of the proved him to be so) uttering such county gentlemen has been decidedly unmeasured expressions of condem- expressed, and nothing can more clearnation and affected contempt of the ly shew the weakness and impolicy of resolutions passed by the gentlemen Mr Kennedy's bill, than the fact, that of all the counties of Scotland, as it is attempted to be forced through the following:
:-" In every instance against the wishes and opinions of they seem to have fallen into some of those without whose wishes and opithose deplorable absurdities, which nions no alteration of the kind conmust always mark the statements templated is excusable. of men who are speaking under the
DeTECTOR. double confusion of neither knowing
• Inverary is also one of the towns in which the circuit courts are held.
When this old book was new, 'Tis more than twen-ty year ; The
yel-low and the blue Were colours of good cheer: But wanton Wit de
cays, And For-tune proves a Shrew, And we're wi - ser now - &
days, Than when this Old Book was new.
['Tis more than twenty year]
Were colours of good cheer,
And Fortune proves a shrew ;
Were much delighted then,
A troop of brisk young men;
In the Yellow and the Blue,
Who were our land's reproach;
And more warily they poach.
Now look all over blue,
When this Old Book was new.
WHEN THIS OLD CAP WAS NEW. 1.
2. When this old cap was new,
The nobles of our land "Tis since two hundred year,
Were much delighted then, No malice then we knew,
To have at their command But all things plenty were :
A crew of lusty men, All friendship now decays,
Which by their coats were known, (Believe me, this is true)
Of tawny, red, or blue, Which was not in those days,
With crests on their sleeves shown When this old cap was new.
When this old cap was new.