HC Deb 20 June 1822 vol 7 cc1200-10
Mr. Kennedy

moved the second reading of this bill; and called upon the lord advocate to prove that the measure proposed was unwise and uncalled for. His objections to the existing mode of appointing criminal juries in Scotland were briefly these. In the first place, the lord advocate had the power of committing for trial, without the intervention of a grand jury. Secondly, in the high court of justiciary, the selection of petty juries lay almost entirely with the judge. The sheriffs, before circuit, sent lists from their various counties to the judge; the judge from those lists, nominated the 45 jurymen who should meet him at each assize town for the purposes of business; and the very same judge afterward, in court, selected from his own list of 45, the jury of 15 by which prisoners were to be tried. The third objection was, that neither prosecutor nor prisoner, as the law now stood, had the power of challenge except for cause. There was not that right of challenge so necessary to the purity of trial—the challenge for supposed prejudice, favour, or affection. If these practices were objectionable in the high court of justiciary, in the minor, or sheriff's court, their operation was still more dangerous. The sheriff, who was judge of that court, selected the jury altogether: he made out the first list, struck the 45, and selected the 15: after this, the verdict was only the decision of a majority; and yet there was no challenge, except for cause, allowed the parties. In Edinburgh, where the sittings of the court of justiciary were permanent, the principle was the same: the judge picked the jury of 15 from lists supplied to him by the clerk of justiciary. The measure by which he proposed to remedy these evils was extremely simple, though two-fold in its operation. He meant to deprive the judge of the power of selection from the 45, leaving the choice of the 15 to be determined by ballot; and, of course, as a corollary upon that proposition, the right of challenge for favour would follow. The hon. member then complained of the opposition which his bill had received from the lord advocate, and read a circular which that learned person had transmitted to the sheriffs of counties just previous to the head courts of May, 1820. In that circular, the lord advocate invited county discussions upon the measure, and intimated that his own opinion was by no means in its favour. It was rather curious that all the petitions that had been presented to the House against the bill, echoed precisely the feeling of the learned lord's circular. He (Mr. K.) fully acquiesced in the excellence of the Scotch criminal law, but he did not think that its weak points were to be held sacred, nor that country gentlemen assembled at county meetings were likely to be the best judges upon points of legal expediency. Another objection which he anticipated was, that this was the commencement of a series of changes affecting the law of Scotland. Now he must observe, that, unless some particular disadvantage could be pointed out as arising from this bill, such a general remark ought to have no weight. The hon. gentleman then proceeded to cite cases from ancient and modern writers on the Scotch law, to prove the inconvenience arising from the want of a right of challenge on the part of the accused. In addition to these, be mentioned a case which occurred about five or six years back. It was the case of an individual who was charged with a theft. It came before a sheriff who was newly-appointed, and who was in a great degree a stranger to the county in which he was appointed. On looking over the list of 45 jurors, be found that the names of 15 of them were marked with a cross, by the sheriff depute; which cross denoted that they were fit and proper persons to try the accused. The consequence was, the accused was convicted and sentenced to banishment from his country. He cited this as a case in illustration of his objection to the system. He would now come to that which he felt to be a painful part of his duty, but still he felt it his duty to notice the case, as it bore upon his argument. The case was one which had lately much occupied the attention of the public (the trial of Mr. Stuart); and when he mentioned it, he begged to be understood as giving the highest credit to the conduct of all parties connected—judges, jury, and prosecutors. But it did appear from a letter produced on the trial, that a judge who might have sat on the trial, had been consulted on the circumstances which led to the fatal result. That learned individual had so far connected himself with the transaction, that from a sense of duty, be absented himself from that which, under other circumstances, would be a most imperative discharge of his judicial functions. Suppose this letter had not come to light, and that the case had been tried in Perth before this judge; in that case he could not have declined to nominate the jury. It was matter of notoriety that in treason and felony, the right of challenge to a certain extent did belong to the prisoner. Mr. Justice Blackstone, in his panegyric upon the institution of trial by jury, observed, that nothing could be better calculated for the ends of justice. He had likewise justly remarked, that if advantageous in deciding questions of property, this species of trial must be of still greater importance in criminal cases affecting life and liberty. Now it was evident, that observations of this nature applied with still greater force to Scotland, where there were no grand juries, and where the functions of those bodies were all vested in the learned lord on the bench opposite. Though perfectly ready to acknowledge the ability and legal knowledge of the learned lord, he must still hold it impossible for him, with the multifarious business which he had to execute, to distinguish with the requisite precision what cases were or were not fit for criminal prosecution. On the general subject of criminal law, he would remind the House of Mr. Justice Foster's observation, that no conduct however cautious, and no character however pure, should lead an individual to suppose that the due administration of it did not concern him. It was to be recollected, also, that in Scotland, juries decided criminal cases by vote, that was, by the opinion of a majority. It was possible that a case might be decided by the casting vote of one individual, or upon a division of eight against seven. Coupling this possibility, with the rule as it respected challenges, it was evident that an accused party might find himself condemned to death or to transportation, by the casting vote of an individual whom he would have been allowed to challenge and exclude, if his trial had taken place in England. Such grievances originated chiefly in the want of a grand jury. There was not in Scotland such an institution as a coroner's inquest. All the proceedings of the learned lord were of his own will and pleasure, in the nature of an ex officio information. There certainly was a system of deputation. This was indispensable on the circuits, as the learned lord could not be in different places at the same time: but the advocates depute were, in general, young per- sons and of short standing at the bar. Add to all this, the great and arbitrary power of the court which might award punishment at its own discretion. The prosecutor had the right, also, of deserting the diet, as it was called, or of postponing the trial in some cases; so that a man might be a considerable time in prison, unable to force it on. This, which might be advantageous in some cases, might be productive of hardship in others. But the courts, he was persuaded, did not wish for the maintenance of a system like the present merely because it invested them with extraordinary powers: or, if they did, it was a good reason for dispossessing them of such powers. He had heard of the privileges of judges, but was sure that he should not hear such a phrase introduced on an occasion like the present. The privilege of doing wrong could be desired by no individual in a judicial office, and engaged in the performance of a sacred duty. He held it to be a most sacred principle of jurisprudence that the judge and the jury should be separated as much as possible. That was the only way to keep the one pure, and the other respectable. It was a common thing in Scotland, however, to say, "What sort of a jury do you think we shall get?" A canvas took place on the occasion; some persons were rejected because they were troublesome; others were chosen because they were obsequious. One object of his bill was, to protect the bench from the vulgar accusations which were prevalent on this topic. The House would perhaps forgive him if he alluded to the proceedings in the -formation of an election committee in illustration of his argument. What would the House think of imposing on the Speaker the duty of appointing a select committee to try the merits of a contested election? And yet, with all deference to the dignity of parliament, the constitution of a jury in a criminal case was at least as important as that of an election committee. The object of his measure was, to grant the same security to the people of Scotland in cases affecting their lives and liberty; as was already enjoyed by them in the vindication of their civil rights. He could not believe that, entertaining this view, he should appeal in vain to a British House of Commons; and it would hereafter perhaps excite surprise that a benefit of this nature was reserved for the year 1822. He felt that he had performed his, task in, a very imperfect manner, when he considered that it was a subject involving principles of no common magnitude; but he trusted that his deficiencies would be supplied by those of his hon. friends, who entertained a similar opinion on the question.

The Lord Advocate

observed, that the object of the bill was, to render the proceedings in criminal cases in Scotland more similar to the English practice. Now, although such a proposition might be good in theory, yet, unless it was shown that great and serious evils arose from the course now pursued, he thought no sufficient ground was laid for so material a change. Nothing appeared more just than that counsel should be allowed to prisoners on their trial; yet the experience of courts of law, showed that no practical injustice was sustained by disallowing them. The present system in Scotland had existed for a length of Lime which it was now difficult to trace, and he had never heard of its causing the slightest oppression. By the articles of the union, each country was to retain its own laws; and though he did not of course doubt the power of parliament, yet this was a reason for its not interfering on a question which related exclusively to the advantage of Scotland against the sentiments of the people of that country, If the people of Scotland were unanimously against the reform meditated, he thought parliament would hardly adopt the plan recommended. When the bill was brought in, there was not a single petition from Scotland on the subject. He had communicated copies of the bill to the Scotch counties, which held their meetings on the 30th of April, with his opinion respecting it; and, with the exception of Lanark, every county, had manifested a desire that no alteration should take place. The judges were perfectly willing to surrender their powers, if it should be the opinion of parliament that they could not retain them for the benefit of the public. The gentry of Scotland, he was well assured, were averse to any change of the criminal law, and believed that other projects of reform were in view—a belief that was certainly countenanced by some parts of the hon. gentleman's speech. The Scotch system of criminal law would stand the test of comparison with any other. Its chief tendency was to deal mercifully with the accused party: and of this truth he could not furnish a. more decisive illustration than by stating that, during a period in which 1,409 capital sentences had been passed in England, there had been no more than 18 in Scotland—a difference which, allowing fur the greater population of this country, amounted to the proportion of 18 and 235. If the hon. member would make good his assertion with respect to the sheriff who had returned an improper jury, that sheriff should be removed. With regard to the bill, he was surprised that the hon. gentleman who had expressed such a desire to follow the law of England, had not followed it altogether. He vindicated the Scottish law from the reflections which the hon. gentleman had cast upon it, and contended that challenges for cause to jurymen were as liberally allowed in Scotland as in England. In conclusion, he expressed a hope that the House would not press upon the people of Scotland a bill, to which the greater part of its' population, Wes decidedly averse.

Sir J. Mackintosh

observed, that the objections of the learned lord to the bill were on two grounds, general and specific. The general grounds were, in the first place; that the proposed reformation of the Scotch law was founded on theory. This was an argument by means of which the enemies of the most salutary reformation were accustomed to disguise their hostility to common sense. It was the observation of a great wit, that no man was an enemy to reason until reason had become an enemy to him. He believed there were no spontaneous enemies to reason; but when men were interested in opposing it, they used hard words to cover the design, and one of these was the word theory, which was very frequently used of late as argument against every plan of improvement. In the second place, the learned lord objected to the bill on the ground that there was no distinct grievance alleged or proved; and, in the third place, he stated that this measure was not called for by the people of Scotland, and indeed was objected to by them. Now, he would remind the learned lord, that all those objections had been made before, in opposition to that great act of reformation, the abolition of the heritable jurisdictions, and had been set aside by lord Hardwicke, and over-ruled by the British parliament, to the great advantage of the country which experienced the beneficial effects of their enlightened decision. He then read some extracts from a speech delivered by lord Hardwicke in the House of Peers, in the year 1747, in support of his statement, and showing; that the grounds on which lord Hardwicke supported the measure for the abolition of the heritable jurisdictions, were those which the learned lord reprobated on the present occasion. Nothing could be more evident, than that the learned lord had stolen the grounds of his opposition to this reforming measure in 1822, from the Jacobites of 1747, who then urged the same arguments against reformation, which were passed over in contemptuous silence by lord Hardwicke as not deserving the compliment of an answer [Hear, hear!]. Even the argument, that there was no complaint of actual grievance, had been anticipated by a noble lord on the former occasion, and was also taken from the Jacobite mint. As to the argument that the people of Scotland were hostile to the bill, he did not believe it could be alleged with truth of the people in general, and he was sure the more the measure was examined, the more popular it would become. The learned lord might as well object to the introduction of juries in civil cases, (the greatest blessing which had ever been conferred on Scotland since the union, except the abolition of heritable jurisdictions), as to the enactment of the present bill. He maintained that the right of peremptory challenge was absolutely necessary in Scotland. According to the wise and just observation of judge Blackstone; it was necessary that the prisoner should have a good opinion of those who were to try him; but how could this be the case, if a challenge upon cause were only to be allowed? It was human nature, that the jurymen against whom such a challenge failed, would become in some measure prejudiced against the prisoner. But this evil would be altogether obviated by adopting the recommendations of the present bill. The learned lord objected to it on the ground of delay. Perhaps, indeed, it might have the effect of keeping the judges four days at Inverness or Aberdeen, instead of two. The learned lord objected too, that the small number of prisoners to be tried in Scotland, compared with England, would make such a measure inconvenient. For himself, he did not clearly understand this mode of arguing the question. He thought that if the right of peremptory challenge could be safely allowed in England, where the greatest number of prisoners were to be tried, it might be introduced into Scotland without much apprehension of danger or delay. Besides, what availed in to a prisoners in Scotland, that he obtained a list of jurors, unless he was allowed the right of peremptory challenge? The furnishing of that list implied such a right. It was a privilege inestimable in its kind. It had often been the means of preventing a man from being put to death by the malice of his enemies. Of what avail would it be, that a man proved falsehood and perjury on the part of witnesses, if he did so before a corrupt and prejudiced jury? It would be in vain to expect justice, without this right of challenge; it its absence, all other steps might be considered only as a mockery of justice. And in Scotland it should be recollected, that a majority of jurors could pronounce condemnation, while in England unanimity was enjoined before the prisoner could be convicted. The mode in which juries were elected, or rather picked out—for that was the phrase used in Scotland—was exposed to much mistrust. It was known that the judge nominated the jury in Scotland, and a recent occurrence strongly illustrated the impropriety of the existing practice. It was known, that, on a late unfortunate occasion, sir Alexander Boswell consulted a Scottish judge, and obtained his consent to the nomination of his brother as his friend in a duel, which brother and sir Alexander might, had Mr. Stuart had the misfortune to fall in that combat, been tried at the Perth assizes before the same judge who had assented to the appointment of his brother as second, that judge having at the same time the power of nominating the jury empanelled to try the cause. Was it safe or expedient that the possibility of an occurrence so fatal to the administration of justice should be suffered to remain, when there was a plain and easy mode of getting rid of it by this bill? In England a jury was given for the purpose of protecting the subject, and also to control the judge, whose appointment by the Crown necessarily exposed him on particular occasions to jealousy, whatever might be the integrity and virtue of the individual. He was much mistaken, if the effect of trials by jury on the moral character and feelings of the people was not even greater and more beneficial than the immediate advantages resulting to a country from this wise and noble instituation—highly as he was at all times disposed to value them. In all his observations on the constitution and laws of this kingdom, nothing had struck him as so decidedly operating to form the character of the English people, as the circumstance of their possessing the privilege of trial by jury. One of the happiest peculiarities which attached to that privilege in England, was, that jurors were, for the most part, taken from among the middling classes of society. This selection gave them an idea of their own importance as members of a free state, while it conferred on them a greater power, and left to them the exercise of a larger and more important discretion than in any other case they were likely to possess. It could not but be highly animating to such men, to find themselves called upon to express their judgments upon matters which the utmost ingenuity and with of man had been actively endeavouring to elucidate. Hence it was that experience, reflection, and the immediate perception of the benefits arising from a venerable institution, combined to form the prominent feature in the English character—a character that was perhaps, without an equal in the history of the world. To this institution, which taught obedience at the same time that it inculcated independence, he traced that great sense of justice, and that perception of law, which rendered the English the most honourable among the nations of the globe [Hear!]—which taught the meanest subject to know generally the nature and extent of his duties and his rights— While e'en the peasant boasts these rights to scan, And learns to venerate himself as man. If he was right in this estimation of the advantages which trial by jury conferred on the people of England, he could not but believe that the moral, brave, and pious people of Scotland were equally entitled to participate in those advantages. It was upon these grounds, that he would support the present bill.

Lord Binning

said, that in the speech which the House had just heard, it had been rather insinuated that an old and intimate friend of his had mixed himself up with a late unfortunate affair, in such a way, that on a recent trial the individual in question (lord Meadowbank) was necessarily absent from the justiciary bench. This insinuation rested on a letter, in which the late sir A. Boswell, addressing himself to the brother of lord Meadowbank—to the gentleman whom he was desirous of having for his friend in the affair,—said, "I saw your brother this morning; and his lordship seemed to think that you would be my friend." Now, what blame did this show as attaching to lord Meadowbank himself? Sir A. Boswell went to consult his intimate friend about settling his worldly affairs. For a fathers of a family who found himself placed in such a situation not to have considered, that though he was consulting a friend, that friend was also a judge, might be unfortunate; but surely it could be no matter of surprise. What, then, would lord Meadowbank do in this unhappy case? The matter was already settled—the bolt was shot. But lord Meadowbank did not appear on the bench. And why did he not appear? Not because he was mixed up with the transaction, but because of his own personal feelings. He naturally must have felt much on such an occasion, in which a dear and intimate friend had perished by the hands of another friend and relation of his own. But he (lord B.) desired to warn the House against the innovations which this bill went to propose. They would not stop here. In fact, the hon. member for Durham had given notice of a motion, directed, in some sort, against the prosecutor-general of Scotland. The same hon. member was also anxious to engraft the system of grand juries on the institutions of Scotland. Let the House, therefore, be on its guard against the progress of innovation. If the judge could not be trusted with the power of striking a jury, he ought not to be trusted with the power of deciding upon the law. Heritable jurisdictions were a positive grievance, but here no grievance existed; and if trials by jury in civil cases had been introduced into Scotland, the country was generally favourable to the measure; whereas it was decidedly hostile to the present bill.

Mr. Twiss

said, he would support the bill the more readily, because it stood alone and apart, and did not necessarily imply that any further changes would be the consequence. The noble lord had adverted to the preliminary advantages enjoyed by a criminal in Scotland; but if at the time of trial he could not obtain a fair and impartial jury by means of the right of peremptory challenge, those advantages were worse than useless. It was excellent to be forewarned, if, in the words of the proverb, "to be forewarned was to be forearmed;" but in the case of the Scotch offender, it was rather an aggravation to be forewarned of the array against him, when it was to end in the decision of a packed jury. In Scotland no private prosecution as in England, but the whole influence of the Crown, was brought into the field against a prisoner. While the judge had the appointment of the jury, and while the prisoner was denied the benefit of a challenge, the prisoner might be as well tried by the judge alone. In giving his vote for the second reading, he wished to be understood not to assent to that part of the bill which directed the jurors to be chosen by ballot.

Mr. secretary Peel

agreed, that the only principle that ought to guide the House was, whether the administration of justice in Scotland could be improved? He was disposed to think that it was not fit to alter the old system of judicial selection; but the more firmly it was adhered to, the more proper did it seem to grant peremptory challenges. He should, therefore, vote for the second reading, and in the committee an amendment could be proposed in order to preserver that part of the existing law with which the House ought not to interfere. As selection, he doubted much whether a better jury might not be chosen by the judge thaw was likely to be obtained by ballot.

The bill was read a second time.