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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 ungos nary eonsequences 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 ly, lobyadopting Mr Kennedy's bill? What tried at that circuit. Indeed it generally etiket a 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 removes-All that either Mr Ken- investigated, when the list of 45 was rorizunedy 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 to fight system proposed by Mr Kennedy, is, check against the corruption of inferior undo
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 3 wit of any consequence to argue upon the countrie.” read the theory where the practice is con
This check operates in a variety of or a 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
prieri calculated to ensure the practi- efforts of the parties would be directed, solo al 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 counel 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 ced 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 efafely 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 ex3 most important principle ; for where tensive with that of his adversary, still sur 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
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 stjectionable power, enabling the the artifices of either party may have judge who goes the circuit, to pack acquired to him in the courseof the prethe 45 out of which he is afterwards vious proceedings, weresuch a thing posto select the 15. But they do not sible. Accordingly, in England, where teem 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
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 Jasticiars Air." The reviewers have remarked, that "the qualificatism for a juror is so long as to include almost every person of any substance, whether kadlord or tenant.” I will bet odds, (a set of your lagazine against a set of the Edinurgh Review,) that the writer of the above passage cannot, without referring to his eiks, sell you what the “ qualification for a juror” really is.
system of packing of juries; and the which, in Scotland, the judge knows uby open very book which the reviewers have nothing till it is disclosed' by the wito triste i selected as a text for the present dis- nesses, in presence, at once, of him and metal cussion, is a Treatise on the ELEMENTS the jury. The jury, be it remembered, had the of that system of packing! whereas with are all solemnly sworn, which is a sufficiens us there are no such complaints; the cient security, especially where their metaling packing of juries has no place among province is so limited'; and if the judge sem, us, either in fact or in fancy ; nor is it wished to pack them, he must proceed DE 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 ere, i ceed puts it completely out of the too absurd to be entertained for a mo- tai perten power of the parties to influence, direct- ment, and which is sufficiently con- imu Court ly 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 circumstances are there pack juries in Scotland, is quite pre- favourableto a person'scharacterandsta- tam posterous. All cases of treason are tried tion, that the judge approves of him as it recer on the law of England; all cases of a juryman," a fact which speaks volumes and the right between the crown and the sub- in favour of the purity of our system. antes de che ject are tried in Exchequer; all cases I have already said, that there is arty 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 seperti in Court of Justiciary and at circuits, are innocent men condemned, and so forth, beauty tin 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 nu mais ir what "unity of taste and principle” merous under our present system, thank and he can exist to forin a suspicious and dan- they are in England under the system gerous“ bond of attachment” between which Mr Kennedy proposes to intro*** the 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 thàt 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 bave 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 mas acts 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 when 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 zealand 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 dehberation and argument that the law on this point was declared, and the declaration of it has been attended with the best effect.
his 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 naining the 166 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 re2 reviewers then refer to the case of cer viewers, is that of Stewart, tried in a 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 u to pack together 45 jurymen, who were reason and justice, law 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 i 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 i obtain a sentence agreeable to the king, of the jurors dissented, but were over
address 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 rem Hailes, 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 à 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, plain, example, 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.
." 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 Pointed 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.
ers, and surely it is one of the strong. Sir George Mackenzie's valuable legal 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 the pas to find ten times as many cases, each occurred during the days of that disa orelerden of them ten times as applicable to their tinguished personage, for whom they are ke kame argument.
profess so much respect, Let us how advert to some of the In the second part of Sir George's not the mat authorities or opinions of great men, Vindication of the Government of Scot bi derati which the reviewers cite in support land, during the reign of Charles the head the of the proposed alteration on our sys- Second, being that part of it which can verife tem. First, they quote from an ano- relates to“ the forms used in pursuita est in 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 1,45; and his opinion that the 45 should disinterested ; yet Sir George prevail. rather 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 ovly are admitted a sufficie murder of Andrew Macketney. Messrs ent jury, and the defendant is allowed Jeffrey and Cockburn were the coun- to chullenge or reject, without giving the te sel for the prisoner, and M. Simond any ground or reason for it, any thirty when the '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
jurys set 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 stat This 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 wish nymous 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 aus who was himself a party in most of thor of this passage had not been grosso the transactions, both polítical 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 aet passed, whereby, as he bimself exfrom countenancing the views of the presses it in the passage above quoted, reviewers, he was their most decided the nomination of the jury (that enemy, and that the reviewers have is of the forty-five, for it is to ther. betrayed a total ignorance, not only of that the statement relates,) was re
Sir George Mackenzie's Works, vol. II. p. 352.
fared 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 evin quoted from Sir George's works is er dence as well as the law. “ I wish foneous, 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 pat Afr Hume's observation into the seems most fit and advantageous for shape of a reflection of their own, and, these subsequent reasons.”+ Thep 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, “ALL OTHER OPINIONS ON of the trials for treason, of which THIS SUBJECT ARE SUPERSEDED." that division of the work professesTo the authority of Sir George Macto treat for in the previous part of kenzie, I beg to add that of an author $ his 6 Vindication” he alludes to the whom the reviewers describe as mour same aet 1672, in these words: “And most accurate writer on the subject ;" wtiereas 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 comjadges," • 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 perempa rince 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 delu por in Sir George Mackenzie's " Vin- şion which has sprung from the look diction." 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 ets 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 soller." Could any man seriously think with astonishment that Mr Kennedy sneh a systern 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." Bnt the fact is, that if the or at least ignorant of the best means of reviewers hart 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.” Title of “ Assizes."
Mr Hume. VOL. XI.