I. LIMITA exception of crimes inferring death or demembration. But FOUNDA this conceffion quits the literal construction; and for the TION AND fame reason excludes from their jurisdiction, not only crimes TION OF punishable by death or demembration, but all crimes re- THEIR JUquiring a jury-trial. WITH the exception, therefore, of fummary convictions, introduced by pofitive enactment, which usually chalks out the particular mode of trial, juftices of peace, not ufing juries, are on that account incompetent to the trial of any offences of fuch a description, or punishable in such a manner as to require an affize, when profecuted before other jurisdictions. II. THIS makes it neceffary to inquire what causes require a jury trial. RISDIC TION. $29 JURY TRIAL, CESSARY. Not pre GUIDED in most other particulars by found and liberal WHEN NE. principles, and eminently indulgent to the accused, our criminal code here, it must be owned, exhibits its darkest and moft uncomfortable profpect; what offences require, and what do not require, a jury-trial, neither appearing to be marked with fuch precision, nor to depend on fuch reasonable grounds of distinction as might have been expected. cifely fixed. "There is no point," obferves lord Kilkerran, "lefs fixed "than this, when a trial was to be by a jury, and when "not." Such still is the immaturity with us of this most important branch of criminal jurifprudence. Yet jury-trial is not of recent or foreign origin among us, but a native branch of our common law, which, of old, employed juries in all cafes, civil as well as criminal. JURIES were firft difufed in civil caufes. The lords of a Tit. Delinquency, No. 15. Antiquity of jury trial Anciently ufed in ci vil causes. $2. JURY TRIAL, WHEN NE CESSARY. When first difufed in civil caufes. council and feffion, a numerous court, confifting of no fewer than fifteen judges, fucceeded the daily council, which, like the ancient feffion, a parliamentary committee was " a com"pond of bishops, abbots, lords, gentlemen, and burgeffes"," to reprefent the three eftates of the realm. It is there a Lord Kames' Law tracts, tr. 7. Sir John Dalrymple fays, there was no neceffity for his' majefty choofing them from the eftates of parliament. Eflay on feudal property, c. vii, § 1, p. 239. But he produces no authority in fupport of this opinion. It is fo far true, that although committees of parliament were chofen out of the three eftates, viz. churchmen, landed men, and burgeffes, yet it feems to have been entirely accidental, whether the judges, in any particular caufe, confifted more of one eftate than of another. The king's council of old were the fupreme judges in civil caufes; which fometimes, in the first inftance, were brought before them, although their principal jurifdiction in Scotland, as well as in England, confisted in attending to breaches of the peace, and to the regulation of inferior judicatures, by obliging them to do juftice, and directing them in cafes of difficulty. In order to relieve the king and council of the weight of their judicial bufinefs, the old court of feflion was cftablished in the reign of James I, by the ftatute 1424, c. 65. Our fovereign lord the king, "with consent of his parliament, "has ordained, that the chancelar, " and with him certain difcrect per"fons of the three eftates, to be "chofen and depute be our fove"rain lord the king, fall fit fra "thine forth three times in the zeir "quhair the king likis to command "them; quilk fall know and exa"mine, conclude and finallie deter"mine all and fundrie complaints, "caufes and quarrelles, that may be "determined before the king and his "council. The quilk perfons fall "have their expences of the parties "foundin faultis, and of their un"lawes," (fines or mulcts)" or "otherwayes, as is pleasand to our fo"verain lord the king." "The feffion," obferves fir George Mackenzie," was then a committee of par"liament." Observations on this ftatute. The number chofen for every feffion appears to have been three out of each eftate, viz. nine ordinary judges, who, with the chancellor, formed the court. Afterwards we read of the lord clerk register being, ex officio, one of the judges.. An act of James II, marked in the black acts, c. 65, 1456, contains the following nomination for the first month, or feffion, of that year. For the clergy. The bishop of Dunkelden, the abbot of Paisley, the abbot of Melros. For the barons.-The lord of Graham, fir Patrick Hepburn, the laird of Carnbee. For the commiffaries of burrows.William Cranston of Edinburgh, Robert Narn of Striviling, Robert Marfer of Perth. Then follow the names § 2. JURY fore not merely from the number of judges, but by a fort of hereditary conftitution, that the lords of feffion have TRIAL, of other judges appointed for the following feffions, being, in like manner, nine for each. By another act of the fame reign, c.63, it was provided, that "the lordis of the feffioun fall fit thryis in the yeir, ilke time forty days, in thir thre places, Edenburgh, "Perth, and Aberdene. The num"ber of the perfouns that fall fit fall “be nine, haveing power and voittes " in the deliverance of caufis, of ilk "eftaite three, and the clerke of the "regifter. The feffioun now next to “begin, and halden at Aberdene, the * 15th day of Junii, and contenand 40 dayis. The fecond felhoun to * begin in Perth thereafter, the fifth * day of October, and continue other "40 dayis. The third feffioun to begin in Edenburgh the 13 of Fe*bruar nixt thereafter, and to conti"nue 40 dayis." This old court was called the SefJan; because, inftead of being, like the council, itinerant, and without any fixed terms of fitting, it was ordained to have three feffions in the year at ftated places. The form, however, was found inconvenient, as the judges ferved by rotation, and were changed from time to time, fo that they could not be fuppofed to acquire any tolerable knowledge of the law. For thefe reafons, fome of our writers say, that the feffion came to be virtually superfeded, before it was exprefsly abolished in 1503. The two acts, 1469, c. 27, and 1465, c. 63, give fome countenance to this fuppofition by taking no notice of the feffon; but enacting, that all caufes fhould first go to the judge ordinary, and that, if parties were aggrieved, they might apply to the king and his council. Sir G. Mackenzie, however, in his obfervations on the former of thefe acts, fays, that the old feffion and the council were only different names for the fame court. Certain it is, that we find meetings of a court called the feffion, fometimes the council, and sometimes the council and feffion, down to a later period than the acts laft mentioned; and this court was evidently a committee of parliament, chosen as the old session was, and exercifing the fame fort of jurisdiction; so that it was probably neither more nor less than a continuation of the old feffion. The neceffity of fome farther remedy appears from the narrative of the flatute, James IV, 1503, ch. 58; which ftates, "that there hes been greate confufion of fummoundes at "ilk feffion, fa that leisure nor space "at a time of the zeir might not "have been had for the ending of "them: and, therefore, puir folks "hes been delayed and deferred fra "zeir to zeir, throw the quilk they "wanted juftice; therefore, for ef"chewing the faid confufion," &c. the ftatute inftituted a new court, called the daily council, to fit continually in Edinburgh, or at any other place where it fhould please the king, to decide all manner of fummonfes in civil matters, complaints, and caufes, daily, as they should happen to occur, with the fame power which the lords of fellion formerly had. WHEN NECESSARY. always been confidered as the jury, or grand affize, of the TRIAL, nation in civilibus a. WHEN NECESSARY. This court feems to have confifted of a greater number of members than the old feffion. "This court alfo," obferves lord Kames, (ibid.)" was defective, having no quorum named, "nor any compulsion on the judges "to attend; by which defect it frequently happenced that a cause "paffed fucceffively through the " hands of several judges." James V, therefore, in order to remedy these inconveniences, in the year 1532, inftituted the prefent court of feffion, under the name of the college of juffice. In the later editions of our ftatutes, the acts eftablishing the college of justice are dated erroneously in the year 1537; but from the record copy in the general regifter-house, as well as from the black acts, and other evidence, it is certain that the real date of them was in 1532. The fixth act of that year, upon the recital, "that his majefty was defirous to "have a permanent order of juftice, "for the univerfal weal of all his "lieges," ordains, "that there be "chofin certane perfounis maist con"venient and qualifeit thairfoir, to "the number of 14 perfounis, half fpiritual, half temporal, with ane prefident; the quilkis perfounis fall "be authorizat, in this prefent par"liament, to fit and decyde upon all "actionis civile; and nane uthers to "have voit with them unto the "tyme the faid college may be infti"tute at mair lafar." By the next chapter, the times of their fitting were afcertained, and a nomination of the judges was made, con fifting of feven clergymen and seven laymen, as ordinary judges, with the abbot of Cambuskenneth at their head, as prefident, and providing that the lord chancellor being prefent, fhould have vote, and prefide; and likewife, that the king should have it in his power to join to them three or four of his great conncil, to have vote with the other judges these were called extraordinary lords The quorum was first made eleven, including the lord chancellor, or prefident, but afterwards brought down to nine (act 1587, c. 44.) And it was declared that the fentences and decrees of that court fhould have the fame ftrength and effect as the decrees of the feffion had in time bygone. A power was alfo given to the judges to regulate their own proceedings. The judges were dignified with the appellation of fenators of the college of juftise, and with the name of lords of feffion, or lords of council and feffion. The first judges appear to have been chofen by the parliament, but afterwards the nomination came to be folely in the king, and the naming of fpiritual judges ceafed upon the reformation, or foon after it. (See pamphlet, intitled, Explanation of the bill for augmenting the falaries, and leffening the number of the judges in the courts of feffion and exchequer in Scotland; by a gentleman who affifted in forming the plan of the bill.) a "In all courts," obferves lord Kames, " civil and criminal, govern"ed by a fingle judge, we find juries § 2. THIS high tribunal, therefore, like the two which it fucceeded, never employed an affize. always employed. On the other "hand, juries were never employed in any British court where the "judges were fufficiently numerous "to act as jurymen. Accordingly, in England," his lordship adds, * I am verily perfuaded that the continuance of jury trial in these new " courts" (king's bench, exchequer, common pleas)" was owing to the "following circumftance, that four * judges only were appointed in each " of them, and but a fingle judge in "the circuit courts." Law tracts, tr. 7. This opinion of lord Kames is difputed, in the pamphlet cited above, in the following paffage : As to "the hiftory of jury-trial, and its "continuance or difufe in courts of "common law, whether in England "or Scotland, I have not been able "to difcover, that this was ever un"derstood to have any connection "with the establishment of those "courts in point of number. England, from the earliest times "down to the present moment, it is "believed the mode of trying iffues "in fact in the common courts of "law has been by jury, with fome "exceptions. The fame was origin. "ally the cafe in Scotland, and would "probably have continued to be so, "whether the judges were numerous or few, had not the form of infti"tuting actions by brieves wore out "gradually, and a new form of fum"monfes been introduced, more con"fonant to the practice of the eccle❝fiaftical and civil law courts. In "Brieves iffuing from chancery in "the king's name, and directed to 4 "the judges ordinary, for trying any "iffue in fact, were the proper au"thority or warrant for calling in"quefts, in order to try that issue; "and these established brieves being "limited in number and form, and confequently ill adapted to the trial " of new cafes, this, together with an "act in the reign of James IV, 1491, "c. 24, gave the first check to that "ancient conftitutional mode of de"termination in Scotland. The act "alluded to ftatutes and ordains, "" that na brieves nor other letters be "given to na partie, but after the form “of the brieves of the chancellaries used "in all times of before; and that the "form of the chancellarie be keiped and "obferved without innovation or eiking "of new termes : and gif onie beis given "uther waies, that they be of na force nor "effel, except the brieve of summoundes "of error." This ftatute must have "had a very great effect upon the ci"vil business of the country, as the "fixed forms of the customary brieves "could not fuit newly emergent cafes. "In England the matter was other"wife conducted. By a ftatute in « Edward the First's time, cap. 24, it " was enacted, Quotiefcunque de cetero "evenerit in cancellaria, quod in uno ca'fu reperitur breve et in confimili cafu "cadente fub eodem jure et fimili indigen"te remedio, concordent clerici de cancel "laria in brevi faciendo vel atterminent 66 quærentes in proximo parliamento et 'ferebant cafus in quibus concordare non "poffunt et referant eos ad proximum "parliamentum et de confenfu jurifperi"torum fiat breve, ne contingat de ceter quod curia diu deficiat quærentibus in JURY TRIAL, WHEN NECESSARY. |