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New Jury Court of Scotland.
145 • the Trinity in their turns, we still P.S. Since writing the above, I give the precedence to the Father, but have little doubt that the former ediby a positive distinction in their per- tions of this work were of the size of sons, and in our worship, we una a pretty large pamphlet, and that the voidably destroy the very notion of present edition was published after one only God, and, as I appreheul, Mr. G's. death, by his son, a gentleoverthrow the great basis of revealed man also in his Majesty's service, enreligion.
larged into an octavo volume by nu. “ What will naturally follow from merous valuable notes, and other adthese observations is this : that, as ditions. Mr. Gifford had three sons, the indivisibility of thought will not two in the army, the other in the permit us to pray fixedly to more navy. than one object at the same time, for the very attempt to divide the attention New Jury Court of Scotland. confuses it ; therefore we are com N Monday, the 22d instant, the pelled, if we hold to the Athanasian system, to invoke and worship the first time. three persons in a separate manner, The Right Hon. William Adam, as we find is done in the Litany and Lord Chief Commissioner ; Allan in many of the Collects. Thus when Maconochie, Lord Meadowbank; and we worship the Father, we adore a David Monypenny, Lord Pitmilly, person different from the Son and the the two other Coinmissioners, being Holy Ghost ; and when we worship assembled; and the names of the thirTHESE, we adore tuo persons different ty-six Jurymen returned to try the from the Father and from each other. issues, being called over, and having For, howsoever they may be connect answered to their names, the Lord ed, their persons are to be preserved Chief Commisioner opened the busidistinctly in the mind, and their wor- ness of the Court in a speech to the ship of course to be distinct also. following effect :
“Now, under these circumstances, My Lords—Before we proceed to it appears impossible, from the very the cause appointed for trial this day, nature of thought, to free ourselves I wish to say a few words to the from the idea of their being three dis- Court. I believe I am justified, actinct Gods. For since we cannot di- cording to immemorial precedent, as vide our attention, which if we could a newly appointed presiding Judge of would be the highest disrespect to a supreme tribunal in this country, the person meant to be adored, it must in addressing the Court. This has be always changed with the object of been the uniform practice of all Presiour worship; and then it inevitably dents on their appointment. follows, that every other must be I believe I am justified in this Court neglected at the time; and these are which is to administer justice by a exactly the consequences with all jury, as in the Criminal Courts of polytheism whatsover; from which ihis country, according to the practherefore I humbly apprehend it is tice of those courts on their circuits, extremely difficult to distinguish the in saying something to you, Gentlepresent system. But, on the other men of the Jury, upon your being band, if we blend the three persons assembled here; and I think I should together, and consider them as one not be justified at the opening of this and the same intelligent being, then new court for the first time, if I did the Athanasian hypothesis is destroy- not state what has occurred to me on ed, and any distinct or discriminating this occasion ; exhibiting a new and worship appears totally superfluous an important feature in the judicial and contradictory." I am, Sir, system of Scotland.
It may not be unfit, recent as it is
J. W. since the Act of Parliament passed them, and was sometimes openly testified: creating this court, shortly to retrace See Acts xvii. 22, 23. Most of them, in
the circumstances which have given deed, conceived that he was too great or rise to the institution of this tribunal. mo far removed to attend to men or their lu the year 1808, an Act of Par. applications. We are obliged to revela. liament passed for improving the jution for the complete care of this most dis- dicatures of this country. It empowcouraging apprehension.
ered and required that his Majesty VOL. XI.
New Jury Court of Scotland. should appoint commissioners to ex. for this purpose in all the countries amirre into that grave and weighty, which speak the language we speak. subject, and to report to the King It is of a tradition so high that noand the two Houses of Parliament. thing is known of its origin. It is of Among other things, the commis- a perfectiou so great for its object and sioners were to be called upon by the purpose, that it has remained in un-' Act of Parliament to inquire into the abated vigour and parity from its fitness of introducing trial by jury in commencement to the present time. civil causes iuto the Scotch judicial. It is the character of all other inestablishment. In the month of May, stitutions for the investigation of facts 1810, the commissioners reported on to have become inadequate to their that subject, stating, that if care was' end. It is the character of this mixed taken “ that no alteration of our mu- tribunal, where a jury decide on the nicipal law was made by such institu- facts under the direction of a court, tion, the enabling the Court of Ses. to have preserved its original perfecsion to direct issues of fact to be tried tion unabated. These extraordinary by jury, might afford a safe founda- and important features of durability tion on which importaut experiments and perfection seem to arise out of might be made.
causes which it may not be "unfit to This Report lay untouched for sé. state upon the occasion of introducing veral years.
But in the interval be- it into the administration of civil justween making this Report in May, tice in Scotland. They are the natu1810, and the close of the session of ral results of its modes of acting. Parliament, 1814, many cases had oc It is to be observed, first, that it curred in the House of Lords, moving can only proceed by settling of a clear entirely on matter of fact, accompa. distinct issue to be tried. The advannied with long printed proofs, calling tage of this is manifest, it obliges the upon the Supreme Court of Appeal, directing Court to compel the parties which should only be required to deto precision, and relieves the causes cide matters of law, to perforın a duty at the commencement of litigation not properly belonging to it, by de from all dispute as to what the quesciding cases resting upon intricate,' tions are between the parties. It enadifficult, and ill-proved facts. This bles the proof to be made clearly as created observation in the house of applicable to those questions. Lords, out of which the statute grew, It requires no more enlarged stateunder which this Court sits, and from ment to enforce the advantages of this which it derives its authority and con effect of the trial by jury. stitution.
Secondly. It adds a casual to a perIt is to be observed then, thắt theo manent tribunal'; and, by their acting great distinguishing feature of this, and re-acting on each other, the natribunal is, that it is the first duty of tural qualifications of both are imits Judges so to act, as not to disturb proved, and their defects amended. in any respect that ancient and admi: The great feature of the casual part rable system of the niunicipal law of of the tribunal The Jury, is its being Scotland, handed down to us by our constituted and assembled, in a manancestors, and secured to us by the rer (as far as human wisdom can ac. Act of Union, constituting, as it were, complislı any endto secure impara charter for the preservation of the tiality" and perfect'indifference in the jurisprudential system of Scotland. causes to be tried by it. It shall be my peculiar care, as it
It is chosen from among the people is my, duty, to walk in this course ; at large, according to a certain quaand however I may distrust my own lification, insuring the education and ability, I feel assured I shall be able understanding necessary for the duty, to do it with the assistance of your A certain number are returned, greatLordships.
er than the number required to try, The object then, of the law under as you thirty-six. Gentlemen fare now which we sit, is to receive and try returned here, to try the appointed issues directed by the decisions of thic issues. The return is made by the Court of Session, wherein matters of sheriff, a magistrate of liigh rank,'une fact are to be proved by the interven- acquainted with; and uninterested in son of a jury.
the parties, having no connexion with This institution has been long used' them; and when returned, the twelve
Nero Jury Court of Scotland.
149 jurors to try the cause are selected by thority has its effect in producing corballot, their names being to be drawn rectness of deportment, and his evi. by a sworn officer of the court, from dence being sabmitted to the judgthe box into which they are put fair ment of his fellow-subjects, the jury, ly, under the sanctioa of a solemn he must have that circumspect attenobligation.
tion to truth which such a situation This is doing all that human con- natụrally creates. Besides, in case of trivance can accomplish towards the prevarication, the authority of a court, attaining a tribunal free from all pre. with sufficient power to commit, is possession.
held over him, to have an instantaneBut the grand and important fea. ous operation. ture of this tribunal for the examina Secondly. The effect of publicity tion of fact, is, $dly, Publicity, or the is equally important in regard to the public and open manner in which its jury. business is conducted.
Their exposure to public view and Every thing is transacted with open observation, secures, in that respectadoors- everything, from the com- ble body, the casual tribunal, that mencement of the trial to its close, steady attention, which is not only except when the Jury retire for de essential to the appearance, but to the liberation, is done before an inquisi. reality of justice ; and it is not unimtive and observing public, who, hear- portant to remark, that this solemnity ing the evidence, form their judgments of conduct reflects again on the surof the correctness of the Court and rounding audience, and secures in Jury in drawing, their conclusions those who compose it, the same at. so that they are secured by the respon- tentiou and decorum when they come sibility of character, thus openly ex to be jurymen. posed to criticism, to form a correct The justice which they do, as I and honest opinion in every case. have already observed, is the subject This is aided by the constant presence of consideration by as many as the of an enlightened Bar, whose learn- court will admit; the report of those ing and talents and practice in judi- present at a trial goes forth to the cial concerns, are thus made subser- public at large, and the verdicts of vient to the ends of substantial justice. jurymen are secured to be just, by Io this way, and before such an au- the certainty that they must undergo dience, the case is sifted to the very the scrutiny of the whole extended bottom, and every part of the tribu- and watchful community. nal is always subject to the most rigid The evidence of which they have observation, and so called to the most to judge is, owing to this publicity, correct attention to do justice. and to the formation of the court, go
This important feature of jury trial verned by rules which are calculated is remarkable for its happy influence to exclude falsehood, and to secure on all those who administer to justice the testimony of truth. through the medium of that insti The introduction of a well-regulated tion.
law of evidence is a most important First. As to its influence on the result of trial by jury. In order to witnesses. By public examination exclude all evidence from the hearing they are open to the observation of of the jury, which, from its nature, the tribunal who is to judge of their may be false, and make an undue imtestimony, and of the value to be as- pression, the judges are called upon cribed to it—as it respects their de- publicly to decide upon the admissimeanour, their capacity and intelli- 'bility of witnesses, and of questions, gence and the manner of testifying. upon all objects of competency, as Every witness in an open court, risks contradistinguished from those of créhis character with the public and dibility. This they do publicly upon with bis neighbours, and is kept cor- the argument of counsel; and, here rect by that influence. The witnesses again, the subject is secured in a due are fully examined by counsel in chief, and certain administration of justice then cross-examined by adverse coun in matter of fact. sel; and, lastly, subject to the exa This is a result only attaioable by mination of the Jury and the Bench. this institution, where there is authoBy being examined before a supreme rity and learning to decide, and a tribunal, the influence of judicial au cause for decision. It is this which
- New Jury Court of Scotland leads to the exclusion of hearsay, and cumspection, a firmness in forming of all those circumstances in proof opinions, a readiness in re-considerwhere the fact may be false and yet ing them, no pertinacions adherence the witness be correctly honest, as to first thoughts, and yet a decision well as to all the exclusions of testi- calculated to enforce well-considered mony arising out of the various mo- views and above all, in this seat, difications of interest or concern in where justice is to be distributed the cause, or in the question or con within a period to be measured by nexion with the parties.
the strength of man, dispatch must Thirdly. As to the Bar, this insti- combine with deliberation, readiness tution will have its just and beneficial of thought with correctness of opinion. influence.
Our duties as Judges are to be perWhen I refer to that most respec- formed before a judicious public, table body, the Bar of Scotland, I deeply interested in the justice which may safely and justly enlarge upon is to be dispensed, and before a cri-, their great learning, their integrity, tical and enlightened bar, ready to their cloquence, and other high at disseminate with freedom, as they tainments; and above all, I can rely ought, their opinions of our errors, on the most rigid honour and pure but equally ready to do justice to our correctness of their practice in their motives, and to bestow the just reprofession. Yet, great as the learn. ward of praise when we are right and ing and eloquence is which they correct. bring into the hitherto ordinary prac
The error to which a court, comtice of their profession, the public posed of a single judge, is liable, is and immediate efforts which they perhaps an over-weening self-willedwill have to make in this tribunal, ness: this is corrected by the dis. cannot fail to afford a new scene for charge of the function publicly with their eloquence.
the aid of a jury. The necessity of In guiding the course of justice, the attending to every point for their inJudges will derive assistance from formation-a necessary compliance counsel, while the system of jury trial with those modes of conduct which will give new occasions to the Bar of such interchange of thought as this Scotland for acute and masterly dis. tribunal requires, and the necessity cussion, by watching and seizing cir- of the judge weighing well what he cumstances and emergencies as they is publicly to impart to others, under arise, as well as by previously pre- the controuling effect of their having paring themselves upon the important to decide on the spot on the correctfeatures of the case; and thus these ness of his views, secures against such new opportunities for the display of self-willedness. conduct and address, by training The error into which the Judges them to a mode of exertion to which of a Court composed of several is apt they have not been accustomed, will to fall is carelessness. Trusting to the give new scope and enlargement to efforts of his fellow Judges, the public their professional talents, and render effort and the duty to impart all that them still more useful ministers passes, and all his views of it to others of justice in all the branches of their on the spot, and at the moment, proves practice.
a sure antidote to this propensity in Fourthly. But, above all, this pub- the judges of a tribunal of several. licity is important, in relation to the Thus it may be said that the wellJudges who preside—in regulating doing of the permanent tribunal is and preserving correct what I have secured, and the administration of called the permanent part of the tri- justice in matters of fact (that exteubunal. This happy composition in sive and ever-varying sonrce of litigajudicature, when the functions are tion) is better regulated by this conpublicly and openly discharged, in- trivance of trial by jury, than by any vigorates all the good qualities of the that the wit of man has ever yet dejudicial character of the permanent vised. Judge, and corrects all the defects Such are the leading features of this to which the judicial character is institution, which we are now to try prone.
in this country, as an experiment, and Oin the Bench we must call to aid, as I have said in the outset, always temper, forbearance, attention, cir- anxiously attending to this, that it'is
New Jury Court of Scotland. not to interfere with any fixed rule, of more retired men, will never fail or with any part of the system of the to guide you : while the court has it municipal law of Scotland, and that in its power, according to the nature we are only to try such issues as the of the case, to relieve all difficulties, Divisious of the Court of Session shall by directing a special verdict, or even think it right in their discretiou to a verdict specially, finding the eviseod here: these, it may be material dence as given, and returning it to to observe, will be of three sorts : the Directing Tribunal; so that that
1st. Cases where the issue may com- . court from which the issue comes will prise both the injury and recompence always attaio, what it wants, the best or damages.
possible information of the fact on 2nd, Cases in which the Court of which to ground its judgment. Session, or Lord Ordinary, having The case for trial will soon afford decided as to the injury, refer the da- a practical instance of what I here mages to be assessed by a jury. state ; and I trust by its event it will
3rd. Cases where the Court of Ses- shew, though, from the great oumsion, or Lord Ordinary, wishes for ber of witnesses, it must be long, that information by the verdict of a jury in less than twelve hours we shall acto inform its understanding, so as to complish, to satisfaction, that which enable it to pronounce a judgment would not have been attained, in the upon the law.
ordinary course, in twelve months The case about to be tried is of the that we shall, by our labour of twelve description last mentioned.
bours, put an end to all litigation ; But in that, and in all cases, it while the other course would, at the will be easy to clear away difficulties. end of twelve months, only give a
In the first place, allow me to ob- commencement to litigation, with a serve, more particularly addressing power to a litigious spirit to continue myself to you, gentlemen, who are it for years to come. assembled to serve on this jury, that If this experiment is successful, and our inquiries here are not into bidden I augur sanguinely
. of it, although, as and occult acts of crime, where the in all experiments, failure may be exdiscovery of truth may often be in- pected at first, there will be attained volved in intricacy and difficulty, and for this country the great objects of in doubtful testimony, by the very justice, viz. certainty, satisfaction, nature of the acts. But we shall have dispatch, and cheapness; and with to do here with the open acts and this I might conclude, but I cannot transactions of men in the ordinary refrain from observing, before I close affairs of life and intercourses of the my address to you, that I augur sucworld. lo such transactions, when cess to the experiment nuost peculiarexamined into in open Court, seeing ly, and with most certain hope, when and judging of the witnesses, as I bave I consider that the casual tribunal, as described their examinations to be I have denominated the Jury, is to conducted, with all the fences against be derived from the body of the peo. the admitting falschood, and all the ple of Scotland, distinguished for good securities for obtaining truth, which education, for a most correct moralia well-regulated law of evidence af- ty, for a love of justice, for extended fords; with a tribunal judging from information, and for a pure religious their own just and honest impressions, persuasion. uncontaminated by iotercourse or ex. I trust and hope with unfeigned traneous impressions, and only influ- anxiety, that I may be able in my enced by the detailed, explained, and person to bring to the aid of this fully delivered opinion of the presid- most important experiment, the quaing Judge, he being alike removed lities requisite to its success. But from undue impressions; there is no. when I reflect that though I have, tbing likely to happen but an easy during all my professional life, been xolution by a general verdict. But accustomed to courts thus administerwhen there does occur prevarication, ing justice, that I have never yet disor contradictory testimony, that world- pensed it--that, from being a critic ly sense and intercourse with mankind on the acts of others in that awful which those composing Juries possess, station, I am now, myself to be the and which affords, perhaps, a better subject of observation and remark, I power of extricatiou than the learning cannot but be full of anxiety and ap