Mr. Kennedyrose and apologised to his honourable friend, the member, for Northumberland, for his apparent inattention to the arrangement which had been made on a former evening—that of allowing his notice to take precedence—but he (Mr. K.) was extremely unwilling to proceed in the absence of the learned lord-advocate of Scotland. At the same time, having waited until the last moment, he was sure the House would feel with him, that, however reluctantly, he must now proceed—The subject to which he was about to call the attention of the House was one of which he had given notice nearly two years ago. He had abstained during the last session from introducing it, owing to peculiar circumstances in the condition of the country. But, having done this, he was the more anxious to propose the measure with which he should conclude, early in the present year—and particularly as he could not be aware how long it might be convenient to the learned lord to attend his duty in that House. He ought perhaps to apologise to the House for the nature of the motion at a moment when the temper of the House and of the country was scarcely tranquillized, or withdrawn from a subject which had so much occupied its attention—but it did appear to him that the time was come to proceed to other important matters. It was not so interesting as a measure affecting the financial, agricultural or commercial embarrassments of the country—subjects to which he should be happy to see the attention of the House directed and especially—by honourable members on the other side of the House, under whose auspices success and advantage were more probable—but he could not think the amelioration of the criminal law or 671 of the judicial system of its administration at any moment uninteresting or unimportant. To make such attempts on any extended principle he was himself incapable, but his present object was not beyond the capacity of any man.
It was most important to correct any imperfection in the administration of that law; to remove the possibility of imputation upon the sacred character of the judges.—He begged to be understood as speaking of the supreme criminal court in Scotland with all respect—he did not come there to attack the conduct of the learned persons who composed it.—His wishes were of a very opposite character, by removing all risk of misconstruction or imputation to place them above the possibility of suspicion, an object at any time laudable, but particularly so at a time when it was not unusual to say that a disposition to degrade the valuable and dignified institutions of the country was characteristic of the times in which we lived. If such was the case, each proposal of improvement was their best defence, and if defects did exist in them, their security consisted in a watchful observation which would lead to a well-timed remedy of such imperfections. He understood that some general measure was contemplated; but he well knew how little weight he could have in recommending particular points as parts of such measure. For this reason he had resolved to submit his present motion for the specific purpose he had in view.
The hon. member proceeded to state that there were many points in the judicial system of the criminal law of Scotland and in the law itself, which he conceived to be defective, and referred in the first place to the stat. 1701, cap. 6, which was to be considered as the Habeas Corpus act of Scotland. A construction of that act, and a practice following upon it had arisen which was undoubtedly hostile to the intention and spirit of that salutary law. By that law, every criminal indicted for a crime of high degree, could compel the public prosecutor to bring him to trial within a limited time It seemed clear that the time had been unduly extended by the modern construction of the law, so that all the benefit intended was not enjoyed. The provisions of the act ought to be amended.
Another point was, that while certain amounts of bail proportioned to the con- 672 dition of the party, were provided and which had been raised to larger sums in modern times, no proportional increase had been made in the amount of the penalties to which parties were entitled upon successful prosecution for wrongous imprisonment—Such disproportion was unfit. If the rates of bail were raised, so ought the penalties for wrongous imprisonment to be augmented.
It was also an evil, that "Letters of Intimation—which were the instrument by which a prisoner forced on his trial, were more expensive than suited the means of most persons in that unhappy condition, such he was assured was the fact. The expense of such a proceeding ought to be so moderate as to present no impediment to the attaintment of the benevolent object of the law in behalf of the meanest criminal in the realm. Moreover the act of 1701, did not apply to persons not in prison, to those who were alleged to have committed crimes for which bail is received.—Persons could qualify themselves to receive the benefit of the act only by going to jail. There could scarcely be any propriety in denying to the offender of smaller magnitude the same privilege of expediting the determination of his own guilt or innocence as was given to the person accused of crimes of the greatest enormity. Each should have the like means of limiting the time within which the public prosecutor should be able to arraign him as guilty. To the public service no injury could arise from this extension of the enlightened spirit of the laws. [Hear.]
Another subject was worthy of the attention of the House, viz: the power of the court of justiciary to award punishments for offences which were not provided for by statute, which are aptly termed arbitrary punishments the power possessed approached to a legislative authority; a power of forming a practice, where statute does not provide, varying from the most inconsiderable punishments to the highest penalties of the law, short of capital condemnation. He did not, indeed, mean to say, that severity was characteristic of the punishments so inflicted, but the system did produce a want of uniformity in punishment, an I uncertainty of degree in punishment, varying with the character of persons, and the spirit of the times, which could not be considered beneficial. The state of the law respecting the punishment of 673 offences against the state was unquestionably a great grievance. In Scotland, a person found guilty of sedition, for a first offence was liable to transportation for seven years, for fourteen years, or for life. In England, for a first offence, he was liable only to fine and imprisonment: and it had been deemed a measure of great severity when the judges were empowered by the act of 1819, for a second offence, to banish for seven years. Such disparity of punishment for the same offence, in two portions of a country which ought to be considered one, could not be considered just or expedient. [Hear, hear.] Yet Scotland suffers under this rigorous exercise of power, of the existence of which grave and high authorities doubt, but while they express their doubts, it is without scruple exercised. So within a year, a person of the name of Macleod, convicted (a first offence) of a seditious libel was transported for five years, and his sentence was considered a measure of leniency, while in England he could only have been condemned to fine and imprisonment [Hear, hear]. Such was the state of the law affecting the liberty of the Press; to Scotland the comparison was most unfavourable.
He would next advert to the office of lord advocate of Scotland, to the extraordinary accumulation of powers attached to it: 1st, the lord advocate had an unlimited power in the nature of ex officio information, in crimes of every description and degree, with the single exception of treason. Even that exception did not exist before the union, but at that time the English law of treason was introduced into Scotland. And it was in example of a beneficial alteration in the law. Nothing in the nature of a grand jury existed in Scotland, with the exception stated; and without any desire to state that the powers of the lord advocate, vast as they are, were in general vexatiously exercised, it was impossible not to be of opinion that some control of them was called for, and that the great interests of public justice would be better consulted by an abridgment of those powers, which could not fail to be looked upon with some degree of suspicion and alarm. [Hear.]
Another power belonging to the lord advocate was, in all cases, at the moment a prisoner was brought to the bar, to pray the court, as it was termed, "to 674 desert the diet pro loco et tempore," that is, to delay the trial and remand the prisoner until a future occasion, either from the proceedings being inaccurately prepared, the absence of a witness, or any other cause. Such desertion of diet is no doubt the act of the court, but it is an act so constantly practised upon the application of the lord advocate or even his deputy upon circuits, as to be in fact the act of the public prosecutor. That it may be usefully exercised is certain but that it may be abused and has been the means of prosecution is not less true. Cases of minor importance constantly occur, but a remarkable case was that of Mackinlay, a few years since indicted for sedition, his indictment was drawn with such want of skill, that he was either three or four times brought to the bar for the same offence, the diet deserted, and he remanded to prison. The court certainly did not exceed its absolute power, but no one could contemplate that proceeding without feeling that it was a disgrace to the country in which it took place and to the public prosecutor to whose incapacity it was attributable. [Hear, hear.] The hon. member said that he called the attention of the House to those topics to shew that in his opinion he did not seek to direct the attention of parliament and the country to the practice of the criminal law in Scotland on light grounds, and unquestionably the office of lord advocate had attached to it a most dangerous and anomalous complication of power. It ought to be re-modelled, and in it's scope ought not to exceed the powers which belong to the attorney general in England, all the points to which he had shortly adverted were most important, and he hoped that the general measures intended to originate with official persons in Scotland would not fail to embrace many if not all of them. [Hear, hear.]
The hon. member proceeded to state, that the measure he was about to propose, was limited to a single, but most palpable and crying evil; the manner in which juries are chosen in all criminal cases, excepting in treason in Scotland. The law and practice now existing were most unfit. It was not his intention to say any thing of the system by which the sheriffs provided the persons from among whom juries were chosen, farther than that he believed it to be by no means perfect: but the sheriffs acted upon their 675 responsibility, and on another occasion the result might be enquired into. It was enough to state that whether to the supreme court of justiciary at Edinburgh or to its circuits throughout the country, 45 persons were sent as jurors, composing a body called the great assize. And here it was impossible not to keep in view a fact, that in the composition of the 45, the judge had something approaching to a nomination. At Edinburgh, cases were tried that arose from a certain number of adjoining counties; and so at circuits, it might be said, that there were contributary counties to each circuit town. From each contributary county previous to each circuit, a list of 45 persons is sent to the justiciary office at Edinburgh, and from the lists of 45 persons so sent from each county, amounting to 90, 135, or 180, as there may be 2, 3, or 4 counties contributory, the rectified list of jurors, who are to compose the great assize, is selected by the judge, who is appointed subsequently to proceed on the circuit. Thus much as to the 45 persons who appear in court on the day of trial, and who have thus undergone a preparatory examination and selection by the judge. It may be here noticed, that when they do appear in court, there is no challenge of the array. From the 45 persons so appearing, 15 are chosen by the same judge to try the case; and it may be observed here, that in Scotland, in criminal cases, the jury decides by a majority; so that not unfrequently, a single voice condemns or acquits.
The bill for which the hon. member was about to move, went to alter the mode in which the jury of 15 is chosen from the 45, or great assize. He did not wish to attempt any change, or to remedy any other part of what he might consider a defective system: but to restrict the measure to so moderate and obvious an improvement, as would reconcile all to the useful and simple measure, which in conclusion, he would propose to the House. Mr. Hume, who was the great authority on the criminal law of Scotland in treating of the constitution of juries, says, "They are named by the presiding judge from the Roll of 45; and are presented, five by five to the panel; who is asked if he have any objection why they, or any of them, should not pass on his assize." He proceeds to state the causes of objection which are admitted, such as a juror being 676 insane, deaf and dumb, an infamous person, an outlaw, or having committed a grievous injury against prisoner, or in the case of prosecution at the instance of a private party, the juror being nearly related to the prosecutor. That such causes of challenge are sustained, but that "our custom allows him not that freedom, which the prisoner has in England, of setting aside so many of the jurymen, by a peremptory challenge, or without assigning any cause." Mr. Hume, indeed, says, that such being the uniform and unquestionable practice, it is strange how sir George Mackenzie, in his vindication of Charles 2nd, states, that a statute passed in that reign, giving the prisoner the power of peremptory challenge, to the number of 30. Mr. K. said, that such was the statement of the greatest authority on the subject, but it was not his intention to found his measure upon the result of antiquarian research; the state of the law and practice was undoubted, and he ventured to think it equally clear, that that law and practice was altogether unfit to be continued. He did not found this opinion upon any new or theoretical principle, but upon a practice which was familiar to the House, which prevailed universally, with the exception of the criminal law of Scotland. He had the sanction of the law of England, of the law of treason in Scotland, of the court of Exchequer in Scotland, of the trial by jury in civil causes in Scotland, and of local and personal acts, which applied to that country. In such circumstances, he was sure that he should not appeal in vain to a British parliament, which would be disposed to extend to Scotland in this I particular point, that pure and perfect system of the administration of criminal justice, which constituted so considerable a portion of the just renown and glory of the nation at large. [Hear, hear.]
The remedy which the hon. member meant to propose, was, 1st, That the jury should be constituted by ballot, instead of by the nomination of the presiding judge. 2dly, That a challenge without cause, should be afforded to prisoner and: prosecutor, three to each. For the ballot, he had the example of the universal practice of England, supported by the most obvious expediency, and sanctioned by the principle, which must regulate all judicial establishments, viz. the most complete and unquestionable impartiality. He had, in like manner, the law of 677 treason in Scotland. Also the court of Exchequer, which, although it was a court administering a law, common both to England and Scotland, was a Scotch court; and lastly, he had the important example of the jury trial in civil causes in Scotland, a branch of the judicature of Scotland, of modern date indeed, but, happily introduced in the first instance, by a temporary act of the 55th, and subsequently rendered permanent by the 59th Geo. 3rd.
On the second branch of the proposed remedy, he had in a great degree the same authorities. The treason law, common to both countries, where peremptory challenge to the amount of 35, was the right of the prisoner. The practice of England on capital felonies, where the right of challenge was limited to 20; and the valuable practical, although not statutory challenge in all cases, by which it was admitted, he understood, to any extent, so long as it did not interfere with procuring a jury.
The jury trial in civil causes, was again a decisive authority to be appealed to, because, had the right of peremptory challenge been found objectionable under the temporary constitution of the system, it might have been omitted; but it was never objected to, and was made permanent by the act of 1819. Upon principle, a certain amount of peremptory challenge seems to follow, as a necessary consequence of a jury being chosen by ballot, which might be said to create a necessity for it, quite as much to the prosecutor as to the prisoner. But in proposing this part of the measure, he meant to ask the smallest number of challenges which could be considered beneficial. He wished to steer clear of all technical difficulties;—as little as possible to disturb present arrangements. He meant to propose a right of three peremptory challenges to the prosecutor and the same number to each prisoner. He was aware that three might appear a very small number, but he understood that four in the jury court was found to answer well; and if it should be deemed proper, he should not object to the number being made four in the measure he proposed. But limitation of the number he did consider necessary; because, although it is stated by lord Royston, that a great assize of 60 had been summoned, they never in fact did now exceed 45. He did not mean to propose 678 the introduction of talesmen, and it was his earnest wish to interfere as little as possible with the dispatch of business. As far as his own opinion went, he saw no sufficient reason against the number of the great assize being increased; but he wished, in introducing his measure, to avoid even any alteration in that particular. Such was the substance of the measure, which was, in the opinion of the hon. member, as little as possible liable to objection, on the ground of being an innovation, or a dangerous theory, because it was, if a theory at all, also a practice existing in every case, excepting the particular instance in which it was his wish to make the alteration. He wished to take away the only case in which the practice varied from the theory, in what was undoubtedly wise and useful; and to render the practice of the Scotch criminal law, similar to the practice of jury trial, throughout every other branch of British judicature. He could not resist again noticing the peculiarity in the Scotch criminal law, that the jury consists of 15, and decides by a majority; so that eight persons may condemn to transportation, while seven desire to acquit; so that a prisoner may suffer by the voice of one roan, and that man he could not prevent being one of the 15, who were to try him. The judge names, and the prisoner cannot object; at least the power of objection cannot be said to be worth the having, and is never almost attempted to be used, and still more rarely sustained. Very different is the case in England, where a prisoner may, and does, every day challenge numbers proportioned to the degree of his crime, and after he has made his challenges and obtained a jury as favourable as he thinks he can, 12 men must agree in their verdict of guilt and condemnation, before he can be convicted. [Hear, hear.] This was, indeed, a striking contrast between the condition of a prisoner in the two countries; he stated it not to undervalue the law of Scotland, which embraced many great and admirable provisions, but to show that it was most important to remove defects, and to select a moment for safe and judicious amelioration, when it could be done without the slightest imputation upon the conduct of any one. He most anxiously wished, in proposing this measure, to gain what he deemed a great and valuable object for his country, and to do so with the least possible change in its institu- 679 tions. He made this attempt in the firm belief, that all judges who were invested with a power which he proposed to withdraw from them, would be grateful to the legislature, for a measure which relieved them from an odious responsibility. In all cases of crime, the present practice was at least inexpedient; but in offences against the state, the law was monstrous and anomalous, and coupled with the power of the court to award punishments, for political offences; modelled on the practice of times, which did no honour to Scotland. It was indeed, important to rescue the sacred tribunals of criminal justice, from the possibility of future reproach [Hear, hear.] He understood, that other improvements were contemplated by official persons. He had long wished to call the attention of parliament to this subject, and he did not choose to surrender it to any one; and had the learned lord been present, he was well assured that he would have had every disposition to give the measure his most favourable consideration. [Hear, hear.] The hon. gentleman concluded by moving "for leave to bring in a bill, to alter the mode of choosing juries, to serve on criminal trials in Scotland."
Lord Binningassured the hon. member who had brought forward this motion, that he felt as deeply as he did, the necessity of the regulations and improvements he suggested, but he lamented he had thought it necessary to introduce into his speech so many topics unconected with the subject matter of it. He lamented particularly that he had entered so minutely into the nature of the office and appointments of his hon. and learned friend, the lord advocate, at a time when that noble lord was absent from his place. He did not feel himself competent to answer the hon. gentleman either in the extraneous matter he had indulged in, or in his legal argument; but there was one part of his hon. friend's preliminary matter to which he would advert, and he was only induced to do so by the formidable sound of the words "arbitrary punishment," on which his hon. friend had commented. This arbitrary punishment, as it was called, consisted only in the court being empowered to pronounce sentence of transportation on a prisoner who had been put to the bar to be tried, perhaps for his life, but in whose case the lord advocate had restricted the libel to an arbitrary punishment, thus taking from the 680 court the power of pronouncing sentence of death. Having said thus much, he should not follow his hon. friend through the other topics to which he had adverted. With respect to the bill, he had no objection whatever to its being brought in and read a first time. The subject was unquestionably one of very great importance; and in what his hon. friend had said respecting the impropriety of having juries impartially appointed, he fully concurred. But he would suggest to his hon. friend, that, if he had a practical object in view, he should content himself at present with reading the bill a first time, and having it printed, and then letting it lie over until it should have received that mature consideration which its importance required.
§ Mr. M. A. Taylorsaid, it was rather unparliamentary that his hon. friend should be assailed because he brought forward the motion in the absence of the learned lord, whose duty it was to be present. He did not see why, if the lord advocate was absent, their tongues were to be tied; the noble lord should rather have apologised for the learned lord than have inculpated his hon. friend. His hon. friend had brought to view the arbitrary power exercised by the court of Justiciary, to instances of which he (Mr. T.) had happened to be witness in a case, the details of which were printed, and which was also to be found in the debates of that House: he meant the case of Mr. Muir and Mr. Palmer. He (Mr. T.) had been in the House at the time of the debate, as well as in Edinburgh at the time of the trial, and certainly, in common with many others, he did not think the verdict was that which would have been given by an English jury. He had on this point the testimony of a man of no mean authority, who was present the whole time, he meant the late sir S. Romilly. Mr. Erskine, a lawyer of the very first eminence, had told him, that on that occasion the Court of Justiciary had misunderstood the law, when they sentenced the prisoners to transportation. The law said that persons convicted of sedition should be banished from their "pleasant fields and native homes." But this never had been understood, or could be honestly interpreted, as giving a power to transport the prisoner to a particular place, as they did those prisoners to Botany Bay. The case was brought before the House of Commons by the present commissioner of the 681 Jury Court (Mr. Adam); the Judges escaped censure with very great difficulty, and no one who heard that debate, * could suppose that the law gave the power assumed of banishing beyond the seas for sedition and libel. But, forsooth, they were not to speak of Scots law, unless the lord advocate was present! In the House of Lords, the chancellor decided on Scots law, though no Scots lawyer, and in that House, even if the lord advocate had been present, he should take on himself to decide according to his own judgment.
§ Mr. J. P. Grantregretted the absence of the lord advocate. He rose solely for the purpose of correcting the noble lord in what he had said respecting the arbitrary power of the Judges of justiciary in Scotland. The noble lord had represented that power as being confined to the pronouncing of sentence of transportation, in cases where the public prosecutor had restricted the libel to an arbitrary punishment. But the truth was, that this was a modern assumption of power on the part of the judges, which he was prepared to prove they did not legally possess. The utmost extent of their power being merely to banish forth from Scotland, they had assumed the same power of transporting to a foreign settlement as was allowed under the statutes of England. In a very recent case, in the face of a unanimous recommendation from the jury, the court, in the exercise of its lenity, had sentenced an individual to five years' transportation.
Lord Binningexplained. He had not said that the court of justiciary never exercised the power of sentencing to transportation, unless where the offence was a capital one. What he had stated was, that what was called an "arbitrary punishment" was in fact a leniency, because the punishment was only so restricted in cases of capital offence.
§ Leave was given to bring in the bill.