JURY COURT IN SCOTLAND. (Hansard, 24 June 1819)

§ Lord A. Hamilton
called the attention of the House to a bill which had passed this session, to amend the act of the 55th of the king, for extending trial by jury to civil cases in Scotland. In doing, this, he had no intention to arraign the promoters of the measure for the main part of it, as no man was more favourable than he was to the extension of trial by jury in civil cases to the part of the country with which he was connected; but, under this act so many new officers had been appointed, and with such large salaries, that they were more likely to be performed by deputies than principals. What gave him a claim to call upon the House on the subject of a bill recently passed, was the improper manner in which the measure had been hurried through the House. The act now consisted of 26 pages, one half of which had been filled up at midnight. His object was to address the Prince Regent, that the additional appointments under this act might not be filled up till a month after the opening of the next session, or before the commissioners on the courts of justice had made report on the jury court. In the original act, there were three chief clerks and two assistant clerks. Now, there were one new principal and three assistant clerks. To show how unnecessary this addition to the establishment was, he should mention a fact, that the clerks of the jury court had continued without interruption to practice in the court of session. An addition of 1,000l. a year was also made to the salary of the lord commissioner, The noble lord went into some other details as to the objectionable parts of the act, and concluded by moving, "That an Address be presented to the Prince Regent, praying that the appointments created by the recent Grand Jury Canal Act, be not filled up till a month after the commencement of the next session of parliament, or till the commissioners sit- 1348 ting in courts of justice shall have made their report."

The Solicitor General
contended, that the appointments under the new act were absolutely necessary, because there would be a great increase of business in the jury court, because it was no longer optional, but imperative on the parties, to bring all causes "on account of injuries to the person, whether real or verbal, as assault or battery, libel or defamation, or on account of any injury to moveables or lands, when the title is not in question," &c. into the jury court. There were originally three chief and two assistant clerks; there was now an additional chief and an additional assistant, so that there would be only, seven in all, as the appointments of two who now performed duties would be at an end. Neither was it imperative on the Crown to give the full amount of the salaries; it was only enacted that they should not exceed a certain amount. There were now 200 causes on the roll of the court. There were four terms, three regular sittings at Edinburgh, and two circuits. As the circuits were divided into three divisions, one chief and one assistant would be required on each division and the other chief clerk would be required at Edinburgh.

§ Mr. Boswell
condemned the manner in which the amendments referred to in the motion were introduced into the bill, only seven members being in the House at the time they were adopted. Such a course of proceeding he thought very unbecoming, especially as an addition of 3,500l. a year was made to the expense originally proposed in the bill. It could not surely be deemed fair, either towards England or Scotland, to make such an arrangement without affording an opportunity for discussion. With respect to the duties of the jury court, the commissioners who were also lords of session and justiciary, should in his opinion, be relieved from the performance of those duties by the barons of the exchequer, who had comparatively but little business to attend to in their own court.

Lord Castlereagh
thought it would be a most inconvenient precedent to call upon the crown to arrest the execution of an act of the legislature, and that too within the very session in which that act was passed. The idea, indeed, of addressing the Crown to suspend the law upon anonymous authority, until a report should be received from a particular com- 1349 mission appeared to him so very inconsistent, and so likely to open a door for various irregularities, that he could not accede to the motion.

§ Mr. Abercromby
observed that, as the act alluded to was not to commence its operation until December, no inconvenience was likely to arise from the adoption of the motion. No such accumulation of business could indeed be calculated upon in the jury court within the interval between December and the period mentioned in the motion, as to call for the appointment of the officers alluded to. His noble friend was not disposed to press his motion, if the noble lord would give his word that the offices referred to should not be filled up until the commissioners should present their report with regard to the jury court.

Lord Castlercagh
said, that there was no disposition on the part of ministers hastily to fill up the officers alluded to.

§ Mr. Brougham
remarked upon the pro visions of the law alluded to, observing, that in addition to the clerks already attached to the jury court, two of whom had 600l. a year each, while another had 900l. and a fourth 300l. it was enacted in the law lately passed, that four additional clerks should be appointed. But where, he would ask, was the necessity for even the number of clerks already belonging to the jury court, those clerks having nothing to do but to prepare issues, while there were not above thirty issues altogether in that court within each year since its institution? There was not a special pleader's clerk, who could not prepare ten times as many issues within the year; yet each of these jury court clerks had as much salary as the judges who officiated as commissioners. After pronouncing a high eulogium upon the character and talents of the lord commissioner (Mr. Adam), he expressed his concurrence in the opinion, that the duties of that court should be performed by the barons of the exchequer.

Lord Binning
maintained, that although the late act provided that four assistant clerks should be appointed to the jury court, it was not meant that these should be additional clerks. As to the expediency of filling up the offices alluded to, the most becoming course would be to leave the decision of that point to the discretion of the Scotch judges.

§ Mr. J. P. Grant
said, it appeared to him, that the gentlemen who supported 1350 this motion, had mistaken the duties which devolved on the jury court. When this court was first instituted, it was a sort of experiment, as several gentlemen high in the law had entertained strong prejudices in favour of the ancient proceedings in courts of justice in Scotland. While this measure was considered as an experiment it remained at the option of the court, whether any civil case should or should not be decided by a jury. But now it was imperative on the court to have the case decided by a jury. In consequence of this half the business of the court of session would devolve on the jury court.

Mr. Kennedy
was persuaded that the more the introduction of trial by jury in civil causes into Scotland was discussed, the more it would be considered an important era in the administration of justice in that country. Persons might differ as to the subordinate arrangements by which the system should be introduced and matured, but as to the great excellence of the object, those who know, that country best, could best understand the benefits which were to be expected. He would not advert to the more immediate advantages in the improved administration of justice; but he could not deny himself the satisfaction of stating the peculiar benefits he anticipated to the political condition and habits of the people. It had hitherto been the misfortune of that country, that its people, and particularly the middling ranks, were not accustomed to think of and to canvass their political rights—to have a due knowledge of their own importance. The introduction of jury trial would accustom them to deal with important rights, and would engender an independence of thought and of political feeling, and a knowledge of their own political rights, which would produce the utmost benefit to the general interests and character of the country. He could not sit down without noticing another effect of infinite moment derived from the introduction of jury trial in civil causes, that it had exhibited to Scotland, juries constituted as they ought to be; he meant chosen by ballot, and with a right of peremptory challenge to the parties. The House would hear with astonishment that all juries chosen in Scotland for the trial of criminal offenders were otherwise constituted. The jury consisted of 15, and 45 persons were returned by the sheriff out of whom the 15 were to be had. But the presiding judge named the 15 who 1351 were to try the case, and no peremptory challenge was allowed to the person accused. The House would agree with him in thinking that it was quite unfit that such a power should exist in any judge, that such a responsibility should be imposed upon his discretion; and he was sure that those honourable persons upon whom so odious a duty was devolved, would be as anxious as he could be, that a change in this respect should take place, that they should be rescued from such a possible suspicion. An English parliament could entertain only one opinion of its propriety. The hon. gentleman concluded by giving notice that early in the next session he would introduce a measure to assimilate the constitution of juries in criminal cases to those which were now established in civil causes—in the particulars to which he had referred.