§ Mr. W. Dundas moved the order of the day for 584 the House resolving into a committee on he Bill for extending the Trial by Jury o civil causes in Scotland.
§ Sir Samuel Romillysaid, he did not rise to oppose the progress of this Bill. He thought, on the contrary, that it was a Bill which would confer the most important benefits on Scotland. He could by no means consider it as a mere experiment, but as an immediate remedy for a great practical evil. From his own experience in appeal causes from Scotland, he knew that the greater part of them turned upon mere matters of fact. The mode of trying these questions now in Scotland was enormously expensive as well as dilatory. A case which in England might be disposed of by a jury five or six weeks after the action was brought, was often pending in Scotland for seven or eight years. There was another great advantage, in the trial by jury, that the countenance, the deportment, and tone of voice of the witness, was a sort of living commentary on the value of his testimony. This was an advantage that trials taken upon written depositions could not have. He certainly valued highly the conscientious scruples of those petitioners, who supposed, that after taking the juror's oath, they could not give up their opinion to their fellow jurors, so as to agree upon a verdict. In this country, however, where the trial by jury had existed for many centuries, a man would be supposed to have a very perverted understanding, if he could imagine that, after having advanced all the arguments he could in support of his impressions, he would be perjured in finally acquiescing with the opinions of the majority, and finding a verdict accordingly. He must also observe that he thought this Bill might be a precedent for important amelioration in a part of the English law. In our Ecclesiastical courts, the proceedings (which also went on written depositions) were enormously expensive and dilatory. He hoped that when the attention of the House was called to the advantages of trial by jury in Scotland, they would also see the propriety of a similar mode of trial in many of the cases before our Ecclesiastical courts.
§ Mr. W. Dundasfully agreed with the hon. and learned gentleman in his remarks on the great importance of this Bill, and declared that he had no wish to precipitate it through the House; on the contrary, he was desirous of paying every at- 585 tention to the prejudices of the Scotch nation upon the subject. These prejudices, however, he hoped would in the end be removed, and the beneficial objects of the Bill universally admitted.
The House then went into the committee. To the first five clauses no objection was made. To the sixth clause
§ Mr. W. Dundasproposed an amendment, the object of which was to provide, that after the death of the commissioners which should be first appointed to preside in the Jury Court (one of whom, for the sake of setting the machine going, it was intended should be English), all the commissioners should be appointed from among Scotch barristers. This arrangement, he thought, would in a great measure remove the jealousy which was at present felt by persons in Scotland towards this measure.
Mr. Abercrombiedisapproved of this amendment. He paid a high compliment to the talents and fitness of the gentleman whom he understood now to be appointed (Mr. Adam), and considered it as one of the most important parts of the Bill, that there should be some one commissioner at least, well acquainted with the rules of evidence in this country, upon trials by jury. He thought it too much to tie up the hands of the executive power from appointing any such person, in case of the death of the gentleman now appointed.
§ Mr. Hornersupported the amendment. He thought that a mere English barrister would be no more competent to try causes according to the law of Scotland, than a barrister who had only practised in Scotland, would be to sit at Guildhall and try cases according to the law of England. He conceived that the law of evidence in Scotland would be improved by the trial by jury; but it must be, after all, by the Scotch law of evidence, and not by the English law, that those trials must be decided. If there was any attempt to transplant at once the English law of evidence into Scotland, he was sure that it would fail.
The Lord Advocateof Scotland cordially approved of the measure, and thought the amendment judiciously introduced.
§ Mr. Crokeralso spoke in favour of the amendment, and fully acceded to the propriety of the commissioners in question being confined to the Scotch bar. The amendment was then agreed to, and the clause adopted. Several new clauses were then proposed, among which was 586 one, providing, that when a jury did not agree in twelve hours, they should be dismissed, and a new trial granted. This latter clause excited some discussion, in which Mr. Wilberforce, lord A. Hamilton, sir James Mackintosh, Mr. C. Grant, Mr. Elliot, Mr. J. P. Grant, lord Binning, sir S. Romilly, sir H. Montgomery, and the Lord Advocate of Scotland, took part. It was finally agreed to, and the House resumed.