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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 fuct, 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
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 intelligence 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 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.
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 detached 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 45 persons, the extent of his necessary inquiries, preparatory to his trial, would be doubled.
challenge. They propose that "the prudent man will resist in the outset, a 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,
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 way 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
and the intentions of the assailant, as well as the real character and necessary consequences of his operations, have been exposed.
But after all, what is to be gained by adopting Mr Kennedy's bill? What recommendation has it either theoretical or practical?—What additional benefit is it to bestow? or, what evil is it to remove?-All that either Mr Kennedy or the reviewers have been able to say upon this subject is, that the system proposed by Mr Kennedy, is, in theory, better calculated to obtain pure and impartial juries, than the system now in use among us. Were it of any consequence to argue upon the theory where the practice is conclusively in my favour, I should demur to this proposition. I maintain, that the theory of our system was a priori calculated to ensure the practical benefits which have been found to result from it. Our system is founded mainly upon these principles: 1st, That much must be trusted to the purity of our judges ;-this is a principle adopt ed in every system of criminal law, and without which we could not proceed a single step: 2d, That in preparing the lists of jurymen, the superintendance and control is most safely vested in the judge, as being the farthest removed from the feelings and prejudices of the parties, and from the possibility of corruption. This is a most important principle; for where any part of the procedure is entrusted exclusively to inferior officers, the chance of corruption in that point is increased. It is for this reason that our law has taken care to exclude the interference of both parties, by declaring that the list of 45 "shall be made up by the clerk of court at the sight of one of the Lords." This is what the reviewers represent as an objectionable power, enabling the judge who goes the circuit, to pack the 45 out of which he is afterwards to select the 15. But they do not seem to be aware, that, in the first place, the judge who selects the 45 in stated proportions from the lists sent in by the two or three counties comprehended in the circuit, is not neces
sarily the judge who is to try the cases in which these jurymen are to act. In the second place, that at the time the judge makes this selection, he has as yet no knowledge of any of the cases to be tried at that circuit. Indeed it generally happens that several of the cases tried at the circuits are for offences which had not even been committed, far less investigated, when the list of 45 was prepared. In the third place, that the superintendance of the judge is a check against the corruption of inferior officers, and a security for the return of proper jurymen; or, as the old law hath it, "the best and most worthie of the countrie."*
This check operates in a variety of ways. If the fifteen jurymen who try the case, should (as Mr Kennedy pro poses,) be chosen by ballot, then the efforts of the parties would be directed, in the first place, against the honesty or vigilance of the inferior officers who are employed in making up the list of 45, or the greater lists from which that one is extracted. To coun teract, to a certain extent, this evil, a very extended right of peremptory challenge becomes necessary, and not the limited challenge proposed by Mr Kennedy; but this cannot be an ef fectual antidote, because the party who has been most successful in the intrigues of the initiatory proceedings, having a right of challenge equally extensive with that of his adversary, still retains the ascendency. But with us there is no temptation to the parties to make any such attempts, for the judge to whom neither of them has access on the subject of the list of assize, and who cannot possibly have any personal interest in the matter, checks the proceedings at different stages, and by the final act of selecting the fifteen, may defeat any petty advantage which the artifices of either party may have acquired to him in the course of the previous proceedings, were such a thing possible. Accordingly, in England, where the matter is conducted somewhat in the manner proposed by Mr Kennedy and the reviewers, we hear constant complaints (whether well or ill founded, I cannot say,) as to the alleged
Treatise of Crimes and Judges in Criminal Causes, by Sir John Skene; also, "Short Form of Justiciars Air." The reviewers have remarked, that "the qualification for a juror is so low as to include almost every person of any substance, whether landlord or tenant." I will bet odds, (a set of your Magazine against a set of the Edinburgh Review,) that the writer of the above passage cannot, without referring to his books, tell you what the "qualification for a juror" really is.
system of packing of juries; and the very book which the reviewers have selected as a text for the present discussion, is a Treatise on the ELEMENTS of that system of packing! whereas with us there are no such complaints; the packing of juries has no place among us, either in fact or in fancy; nor is it easy to conceive how it could find a place, for the system on which we proceed puts it completely out of the power of the parties to influence, directly or indirectly, the impannelling of single juror. The notion of the judge having an interest or inclination to pack juries in Scotland, is quite preposterous. All cases of treason are tried on the law of England; all cases of right between the crown and the subject are tried in Exchequer; all cases of libel are tried in the Court of Session. Almost all the cases tried in the Court of Justiciary and at circuits, are cases of felony, thefts, robberies, murders, &c. In the trial of such cases, what "unity of taste and principle" can exist to form a suspicious and dangerous" bond of attachment" between the judge and individual jurymen, as hinted at by the reviewers? Besides, it should be remembered, that the form of proceeding in Scotland is such, that even in cases where the crown or the government may be supposed to have a particular interest, the prejudices or biases of the jury cannot operate. It is the primary province of the court to determine whether the acts set forth amount to the crime charged; this is done by a solemn written judgment, and the jury have afterwards to determine, merely whether the accused committed those acts. The judge, therefore, has no interest to pack the jury, for their decision can be swayed only by the evidence, of
which, in Scotland, the judge knows nothing till it is disclosed by the witnesses, in presence, at once, of him and the jury. The jury, be it remembered, are all solemnly sworn, which is a sufficient security, especially where their province is so limited; and if the judge wished to pack them, he must proceed by selecting those whom he thought regardless of their oaths, a supposition too absurd to be entertained for a moment, and which is sufficiently contradicted by the reviewers themselves, when they say, that "it is practically felt and understood to be a circumstance favourable to a person's character and station, that the judge approves of him as ajuryman," a fact which speaks volumes in favour of the purity of our system.
I have already said, that there is no practical evil to be remedied by this bill. Cases of packed juries, of innocent men condemned, and so forth, (which would form the only excuse for the measure,) are not more numerous under our present system, than they are in England under the system which Mr Kennedy proposes to introduce. In fact, we have no such cases at all. This is a sufficient objection to the measure-it can do no goodthere is no evil to be remedied-Why experiment upon a system so perfect? The reviewers see the full force of this argument, and they try to evade it by saying, that the absence of all ground of complaint is the reason why the present time should be selected for making a change which is to guard against possible evils hereafter. It is quite plain, that this argument may be advanced in support of every experiment, and that the more absurd, and visionary, and useless the experiment is, the better will this argument apply to it. 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 whe 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 zeal and 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 deliberation and argument that the law on this point was declared, and the declaration of it has been attended with the best effect.
this argument, draw from their stores of historical knowledge, in order to make out a case of practical evil. They go back to the days of the Stuarts, to the "cruel prosecutions suffered during the twenty or thirty years preceding the Revolution," and they say, "one of the most admonitory and alarming circumstances, in the history of these horrible scenes, is, that to a great extent they were acted in our Supreme Criminal Court; that the murders there committed had often the formal authority of a verdict, and that these verdicts were pronounced by jurymen SELECTED, AS AT THIS MOMENT, BY THE COURT. It cannot be denied that these are facts." The reviewers then refer to the case of certain Presbyterian clergymen, prosecuted in 1605, under the direction of the Earl of Dunbar, who, in spite of the popular feeling at that time, contrived to pack together 45 jurymen, who were in some degree in his interest, or under his influence, and by this means obtained a verdict against the Presbyterians; at least, this is what we are desired to infer from the private letter of Sir Thomas Hamilton, then Lord Advocate, and the commentary on that letter by Lord Hailes, who says, "We see here the Prime Minister, in order to obtain a sentence agreeable to the king, address the judges with promises and threats, pack the jury, and then deal with them without scruple or ceremony." But the reviewers think themselves a great deal wiser than Lord. Hailes, and far deeper read in the historical law of the country, than that distinguished lawyer and historian was. They accordingly supply some reflections which had escaped his lordship. "He might have added," say they," for this is the proper use of the example, that IN SO FAR AS REGARDS THE NOMINATION OF THE JURY, THE COURT OF JUSTICIARY IS CONSTITUTED AT PRESENT EXACTLY AS IT WAS THEN." What deplorable ignorance! Do the reviewers not know, that in 1605 the prosecutor (not the judge) made up the list of 45, and summoned them? That this power continued down to the middle of the reign of Charles the Second, when an act was passed, depriving the prosecutor of the power, and vesting it in the judge?
"For," as Sir George Mackenzie observes," it was thought too se-› vere that the king's advocate, or the party accuser, should have the naming of the assizers." It was in virtue of the power vested in the prosecutor, to name the 45, that the Earl of Dunbar acted; and accordingly Lord Hailes does not accuse the judges, but the prime minister, of packing the jury. That power was taken away from the prosecutor, and for a century and a half, in the course of which the country has been visited with Revolutions, Rebellions, and troubles, it has been vested in the judge, without any evil having been experienced from it.
The next case quoted by the reviewers, is that of Stewart, tried in 1752, for the murder of Campbell of Glenure; and the allegation in regard to that case is, that, though guilty, he was himself unlawfully slain;" that
reason and justice, law and form, argument and fact, were all equally outraged." This ascribes the issue of the case to a great many causes, altogether independent of the jury, whose verdict is completely supported by the evidence admitted on the trial; indeed, the fact that the jury were unanimous, is a sufficient proof of this. The reviewers allege that three of the jurors dissented, but were overawed; there is, however, no authority for this statement, and the only author who records such a rumour, expresses his own disbelief of it.†
The next case referred to by the reviewers, is one mentioned by Maclaurin, who tells an absurd story of 14 jurors having passed a vote to acquit a man, and the fifteenth having then set to work, and prevailed on them to alter the verdict. The reviewers say that Maclaurin heard of this, "plainly on authority which he believed;" but they give no further explanation, and no reference to the part of his work, where the story is recorded.. But upon turning to an obscure note in the Appendix, (p. 771,) the reader will there find the whole of this absurd story, and will see that it rests upon the worst possible authority, namely, the tale of the accused and convicted culprit, whose name even is not given.
Such is the meagre and inapplicable catalogue of cases cited by the review
Observations on the Act 1587, chap. 88.
+"A Supplement to the Trial of James Stewart, by a By-stander." Lond. 1753.