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I have already remarked, that any error in the formation of a written verdict, entitles the accused, though found guilty, to be set at liberty. It is therefore proper, that in every jury there should be at least one person whose education and habits qualify him for the duty of committing the verdict to paper in proper form. And when the judge names the 15, he takes care that there shall be one such person in every jury. If, on the other hand, the jury were to be chosen by ballot, it might frequently happen that none of the 15 could perform this duty correctly; for with us there are no persons (as there are in England) who make a trade and livelihood of being jurymen; and the guilty prisoner would always challenge the best and most intelligent jurymen. To this the reviewers answer, that "it is notorious, that it has been often proposed to put an end to them (written verdicts) altogether; so that it would be a recommendation of this bill, if it hastened the period of their total abolition." Now, I confess that I never before heard of this notorious proposal. I should like to know by whom it was made. At all events, the mere fact of a thing having beeu proposed, is no reason why it should be adopted or encouraged. It is notorious, that it has been often proposed to put an end to the British Constitution altogether, and to introduce annual parliaments and universal suffrage; but it does not thence follow, that it would be a recommendation of any measure, that it would has ten the period of the total abolition of the British Constitution. But, further, it will be observed, that this argument of the reviewers is quite hostile to the notion that Mr Kennedy's bill is a "simple detached measure," which is not to interfere with the rest of our present system, but, on the contrary, to leave" the whole of its forms and principles unchanged." Another remedy proposed for the evil now alluded to, is to give the Judge power to remand the jury. I must take the

liberty to say, that theoretically, this power seems much more objectionable than the power against which Mr Kennedy's bill is directed. The judges in England no doubt have the power to remand juries, and long practice has now placed this matter on a proper footing in that country; but if we look back to the records of their State prosecutions, we will find innumerable complaints founded on the abuse of the power to remand juries; and so jealous were our ancestors of any interference of the court with the verdict of the jury, that they required the verdict to be written in perfect seclusion, and declared that when once written it should be unalterable. But in the present view of the case, it is sufficient to observe, that the very proposal of these remedies is an admission, that Mr Kennedy's bill is to bring along with it new evils, for which fresh remedies must be provided by other hands; and this just confirms my assertion, that the bill cannot exist as a simple detached measure,-that it cannot operate along with the other parts of our present system, and that we must therefore be prepared to launch into a boundless sea of changes, or we must resist the bill in toto.

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The system of chusing a jury by ballot would bring along with it many other evils besides the one already mentioned, and not the least of these would be the great inconvenience it would occasion to jurymen. The persons on whom the duty of jurymen devolves in Scotland, perform that arduous and important duty with promptitude and fidelity. Their gratuitous exertions deserve the highest applause, and I fear the best days of Scotland's independence will have passed, when the country gentlemen and yeomen cease to perform gratuitously and cheerfully those services to the community which, as magistrates, as jury men, as constables, as soldiers, and in a thousand other capacities, they now perform. It should therefore be an object of the utmost care of the legislature

* 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 juryшnan, 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 livelihood, or deprive him of it. I say that the duty is performed in Scotland at an ex-' pence 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 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 unreasonable degree. The duty performed by jurymen on the circuit, is fatiguing and expensive; our form of trial is more tedious than that in England, mainly because of the advantage enjoyed by the accused of having counsel who plead for him in every stage of the #proceedings; we have a greater number of jurymen in each case, our country is much more thinly peopled, and, in particular, we have very few populous towns, consequently the duty comes more frequently round to each of the jurymen, and they have to travel from a great distance to attend the circuit courts. At present the judge on the circuit takes care to apportion the duty in such a manner as to give every possible accommodation to the gentlemen of the jury. The reviewers say that "nothing can be more notorious than that this is not the fact;" but I say that it is the fact, and I appeal to the experience of all who are in the practice of attending the circuits in any capacity whatever, and, in particular, I appeal to those who have been accustomed to act as jurymen, to decide between my assertion and that of the reviewers. But, if the jury should be chosen by ballot, the business would be most unequally divided, and some jurymen would be quite done up while others might not be called upon to act at all. The reviewers meet this objection by saying, "all this is avoided by arming the parties with a few peremptory challenges," and they argue, that whenever a juryman finds it inconvenient to act, he can apply to some of the counsel in the cause to challenge him, which they will readily do, because the "legal advisers always find it for their interest not to make themselves unpopular." Is it possible to conceive a more artificial antidote to a positive evil? Is it thus that the precious gift of peremptory challenge is to be cast away? Is

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the country, or are the parties, to be deprived of their right to the services of a juryman because he happens to have a friend among the counsel in the cause? The reviewers themselves say, that "the parties have a fair claim to have their rights adjusted by the greatest quantity of honesty and intel ligence that can be extracted out of the list." Surely a ballot is the least cer tain method of obtaining that extract, and the right of peremptory challenge, exercised as the reviewers propose, or as the guilty prisoners would wish, would convert the uncertainty into impossibility.

Nor are these the only ways in which Mr Kennedy's bill would operate to the inconvenience of jurymen, and the prejudice of justice. It is generally the interest of criminals to throw every obstacle in the way of a trial; there fore they would separate their challenges, and the consequence would be, that their trials must likewise be separated, so that, instead of bringing four criminals at once to trial on one indictment for the same criminal act, there must be four separate trials.* The effect of this would be, that the number of trials, and consequently the actual duty of jurymen, would be increased at least threefold; the circuits would last three times as long as they do now; and, to aggravate the evil, the jurymen could not be allowed the relief of leaving the court for a few hours at a time as happens at present, for it is impossible to tell how soon a trial may come to a conclusion, and the moment it does, the names of the whole 45 must be immediately put into the ballot box for a new case, and every one of the gentlemen must be in court to answer to his name, in the event of his being ballotted. The reviewers see this objection, and they try to meet it; but how do they try to meet it? why, by giving up the whole principle on which 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, highly proper that the measure of punishment should be proportioned to the extent of 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 indictments.

I have already remarked, that any error in the formation of a written verdict, entitles the accused, though found guilty, to be set at liberty. It is therefore proper, that in every jury there should be at least one person whose education and habits qualify him for the duty of committing the verdict to paper in proper form. And when the judge names the 15, he takes care that there shall be one such person in every jury. If, on the other hand, the jury were to be chosen by ballot, it might frequently happen that none of the 15 could perform this duty correctly; for with us there are no persons (as there are in England) who make a trade and livelihood of being jurymen; and the guilty prisoner would always challenge the best and most intelligent jurymen. To this the reviewers answer, that "it is notorious, that it has been often proposed to put an end to them (written verdicts) altogether; so that it would be a recommendation of this bill, if it hastened the period of their total abolition." Now, I confess that I never before heard of this notorious proposal. I should like to know by whom it was made. At all events, the mere fact of a thing having beeu proposed, is no reason why it should be adopted or encouraged. It is notorious, that it has been often proposed to put an end to the British Constitution altogether, and to introduce annual parliaments and universal suffrage; but it does not thence follow, that it would be a recommendation of any measure, that it would has ten the period of the total abolition of the British Constitution. But, further, it will be observed, that this argument of the reviewers is quite hostile to the notion that Mr Kennedy's bill is a "simple detached measure," which is not to interfere with the rest of our present system, but, on the contrary, to leave the whole of its forms and principles unchanged." Another remedy proposed for the evil now alluded to, is to give the Judge power to remand the jury. I must take the

liberty to say, that theoretically, this power seems much more objectionable than the power against which Mr Kennedy's bill is directed. The judges in England no doubt have the power to remand juries, and long practice has now placed this matter on a proper footing in that country; but if we look back to the records of their State prosecutions, we will find innumerable complaints founded on the abuse of the power to remand juries; and so jealous were our ancestors of any interference of the court with the verdict of the jury, that they required the verdict to be written in perfect seckasion, and declared that when once written it should be unalterable. But in the present view of the case, it is sufficient to observe, that the very proposal of these remedies is an admission, that Mr Kennedy's bill is to bring along with it new evils, for which fresh remedies must be provided by other hands; and this just confirms my assertion, that the bill cannot exist as a simple detached measure, that it cannot operate along with the other parts of our present system,—and that we must therefore be prepared to launch into a boundless sea of changes, or we must resist the bill in toto.

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The system of chusing a jury by ballot would bring along with it many other evils besides the one already mentioned, and not the least of these would be the great inconvenience it would occasion to jurymen. The persons on whom the duty of jurymen devolves in Scotland, perform that arduous and important duty with promptitude and fidelity. Their gratuitous exertions deserve the highest applause, and I fear the best days of Scotland's independence will have passed, when the country gentlemen and yeomen cease to perform gratuitously and cheerfully those services to the community which, as magistrates, as jurymen, as constables, as soldiers, and in a thousand other capacities, they now perform. It should therefore be an object of the utmost care of the legislature

* 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 juryinan, consequently the Juries must be more independent, for it is the interest of the paid juryman 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 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 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 unreasonable degree. The duty performed by jurymen on the circuit, is fatiguing and expensive; our form of trial is more tedious than that in England, mainly because of the advantage enjoyed by the accused of having counsel who plead for him in every stage of the proceedings; we have a greater number of jurymen in each case, our country is much more thinly peopled, and, in particular, we have very few populous towns, consequently the duty comes more frequently round to each of the jurymen, and they have to travel from a great distance to attend the circuit courts. At present the judge on the circuit takes care to apportion the duty in such a manner as to give every possible accommodation to the gentlemen of the jury. The reviewers that" nothing can be more notorious than that this is not the fact;" but I say that it is the fact, and I appeal to the experience of all who are in the practice of attending the circuits in any capacity whatever, and, in particular, I appeal to those who have been accustomed to act as jurymen, to decide between my assertion and that of the reviewers. But, if the jury should be chosen by ballot, the business would be most unequally divided, and some jurymen would be quite done up while others might not be called upon to act at all. The reviewers meet this objection by saying, "all this is avoided by arming the parties with a few peremptory challenges," and they argue, that whenever a juryman finds it inconvenient to act, he can apply to some of the counsel in the cause to challenge him, which they will readily do, because the "legal advisers always find it for their interest not to make themselves unpopular." Is it possible to conceive a more artificial antidote to a positive evil? Is it thus that the precious gift of peremptory challenge is to be cast away? Is

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the country, or are the parties, to be deprived of their right to the services of a juryman because he happens to have a friend among the counsel in the cause? The reviewers themselves say, that "the parties have a fair claim to have their rights adjusted by the greatest quantity of honesty and intel ligence that can be extracted out of the list." Surely a ballot is the least certain method of obtaining that extract, and the right of peremptory challenge exercised as the reviewers propose, or as the guilty prisoners would wish, would convert the uncertainty into im possibility.

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challenge. They propose that "the prudent man will resist in the outset, same jury, when once ballotted, might try a number of cases, as, for example, the whole cases of the day," so that this great improvement-this essential of justice, Mr Kennedy's boon of peremptory challenge, is indeed a detuched and single measure; a prize merely to the first drawn ticket. To infuse any portion of justice into this scheme, there should be a clause enacting, that the persons accused should draw lots for the first trial! This limitation of the practical operation of the bill, can be viewed in no other light than as an abandonment of the principle on which alone it lays claim to support. The reviewers likewise propose to prevent the necessity of separating the trials, by summoning an additional number of jurymen. Here again is another change upon the present system, and another proof that Mr Kennedy's bill cannot operate as a detached measure, leaving all the other forms unchanged." But the summoning a greater number of jurymen is not a step to be taken rashly. I have already shewn that, from the forms of our courts, and the nature of our country, and the state of our population, the duties at present performed by jurymen are necessarily burdensome and expensive; but if the number should be increased-say doubled each juryman would be summoned twice as often as he is now, and while giving this increased degree of attendance, he would be further subjected to the additional inconveniencies and hardships to which I have already alluded. The accused too would suffer by this change, for instead of having to inquire into the characters of only 4-5 persons, the extent of his necessary inquiries, preparatory to his trial, would be doubled.

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Much more might be stated in objection to Mr Kennedy's bill;-but enough has been already said, to shew that it cannot exist at all as a "detached" "single" measure; and that even the reviewers, who wish it to be considered in that light, cannot obviate the objections to it, except by proposing further changes in themselves equally objectionable. The reason is obvious why the reviewers wish to persuade the public, "if they will only take it so," that the bill is only a detached measure, and leaves every thing else, both in form and principle, unchanged. They know that every

measure which is but the forerunner of an undefined series of changes and innovations on a system of criminal law, on which experience has already impressed the stamp of utility. It is quite plain, that to give any effect at all to Mr Kennedy's bill, it will be necessary to introduce other changes which he has not contemplated, or at least for which he has not provided; and the termination of which no man can foretel. It is impossible to figure a better illustration of the second general principle with which we set out; namely, that when a system of criminal law has existed for a long course of years, and has become matured, all its parts acquire an aptitude for each other; and it is nearly impossible to remove or alter any of them, without affecting others, and endangering the whole system. Whether the "singleness" of Mr Kennedy's measure is to be ascribed to his own blindness, or his wish to blind others, it belongs not to me to decide. Were I to offer an opinion on the subject, I should, in all probability, ascribe it in part to both causes.-I think that there are many things intimately connected with the operation of the bill, but of which Mr Kennedy had no conception when he introduced it; and some perhaps of which he has no conception now; but I also think, that he could not be so very obtuse, as seriously to intend that the bill should be a "detached measure," and that all the other "forms" and "principles" of our system were really to be left "unchanged." Indeed, his own speech shewed that he meditated ulterior operations against the criminal law of Scotland; and so extended were his plans, that even the new modelling of the act 1701, (the Scotch Habeas Corpus), an undertaking sufficient of itself to appal most men of ordinary sensibility, was to form a comparatively trifling incident in his campaign. He announced, (as the newspaper reports of his speech inform us,) that he should" incidentally involve the revision of the provisions of the act (1701,) in the motion which he had to submit to the House!!" He was afterwards wisely advised to abandon that plan for the present, as there was no chance of his being allowed to effect a breach of the bulwarks of the system at all, except under the mask of a "single" " detached" measure, but that mask has now been removed,

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