SCOTCH JURIES BILL. (Hansard, 16 February 1821)

The Lord Advocate
said, that he did not rise to object to the first reading of this bill, for he should at all times be ready to give his utmost attention to any subject connected with the administration of justice in the Scottish courts. The hon. member had not communicated with him before he submitted his bill to parliament; if he had, he should have told 718 the hon. member of his intention to bring in a bill, founded upon the report of the commissioners who had inquired into the state of the courts of Scotland, and of his readiness to consider how far the hon. member's object could be embodied in that bill. He was one of those who thought that a great practical evil must be shown before any innovation should be permitted in an existing system, and more especially on a subject involving so many important considerations. Unfortunately, however, there seemed to be a general disposition in the present day to hunt out every hole and corner in our constitutional system to which some theoretical remedy might by possibility apply. He was sure the English and Irish representatives would not think the worse of him for defending the institutions of his native country; and he would therefore say, without hesitation, that the criminal judicature of Scotland, both with reference to its principles, and to the beneficial results of those principles, was highly estimable; and that there were in Scotland fewer trials, fewer capital punishments, and fewer sentences of transportation, in comparison with the population, than in any other part of the united kingdom. He was far from wishing to institute an invidious comparison between the practice of the courts in his own country and that of the English courts; but he hoped he might be excused for stating some of the advantages which, in criminal trials, a prisoner enjoyed in Scotland, In the first place, he was entitled to a copy of the indictment fifteen free days before his trial; and it must be drawn up with the utmost care, specifying the charge precisely, both as to time, place, and substance, and the prosecutor was strictly prohibited from going beyond that specification. The accused was also entitled to a list of the names and designations of all the witnesses who were to appear on the trial against him, as well as the names of all the juries by whom he was to be tried. When the trial came on, no witnesses could be re-examined; and, what was perhaps the greatest advantage of all, counsel was, from first to last, allowed to the defendant. These, he submitted, were no common advantages to the accused; and he contended that it was hardly possible to devise a system better calculated to secure an impartial trial. The only innovation of which he was 719 aware, was, the introduction of the English law of treason, which had been made applicable to Scotland at the time of the union; and he admitted that the proceedings under that law were not so favourable to the accused as those under the law of Scotland. Of this it had very lately been his misfortune to witness a melancholy example. In the course of the last summer, no fewer than 98 persons had been indicted for treason, and the same indictment had been served on so of them, although the offences charged against them had been committed in different counties, and under different circumstances. In that point the law of Scotland had certainly been altered, and he contended that it had been altered to the prejudice of the constitution. He should not object to the principle of the bill, but he desired to be understood as reserving to himself the right of opposing it in any future stage, if he should deem it necessary.

Mr. Kennedy
was not surprised that the learned lord should have felt a wish to make these observations on the present occasion; but, at the same time, he conceived that he himself was fully warranted in not having postponed his motion on account of the learned lord's absence the other evening. The learned lord had complained that many of his countrymen took pleasure in stating the defects of the establishments in Scotland. For himself, he was actuated by a very different motive: the love he cherished for the establishments of his country had prompted the desire of remedying their defects. The learned lord had said, that it was not enough to show the existence of theoretical defects, and that some practical defect should have been pointed out to warrant the introduction of such a measure as the present; but he (Mr. K.) was of opinion, that if he exhibited any tiling faulty in theory, which might lead to injurious imputations on the conduct of the learned judges who presided over the criminal court of Scotland, he did better than if he were to take any indelicate notice of the practice into which these learned persons were led by such a defective theory. He meant to propose that the bill should be printed and read a second time a week hence, with an understanding, that it should stand over till April, subject to any future postponement that might be necessary.

§ Mr. M. A Taylor
not disposed to 720 agree in the view which the learned lord had taken of the criminal courts in Scotland. He adverted to the sentence passed on Mr. Muir in 1794, and, on the authority of the ablest lawyer of the day, he professed himself prepared to contend with the learned lord, that the court, in passing that sentence, had exceeded its powers.

The Lord Advocate
expressed his readiness to meet the hon. gentleman, and to maintain that that judgment was legal. He was the more confident on the subject, because that judgment had recently come under the consideration of the supreme court, and had received its sanction.

§ Mr. J. P. Grant
could not sit silent and hear it said that the supreme court had recently approved of that sentence; because he knew that the ablest judge on that bench held opinions hostile to that sentence. There was scarcely a lawyer of eminence in Scotland who did not entertain grave doubts on the subject.