It it upwards of twenty
years since the trial of civil causes by jury was introduced into
Scotland; and the experience we have obtained has increased, rather
than diminished, the dislike with which this manner of deciding
lawsuits has always been regarded on this side of the Tweed. The
only persons whom we have ever heard speak favourably of it are some
of the lawyers and agents, who, as will be afterwards seen, have
good reason for their partiality: but, even in the profession of the
law, the trial of a civil cause by jury is generally regarded with
no ordinary feelings of dread and apprehension; and there are few
litigants who do not quail when they find their suits have reached
the fearful point of “Notice of Trial." Hence is to be explained the
fact that not one-half of the causes in which all the expense of the
preparation for trial has been incurred, and the jury has been
summoned, are actually brought to trial; for, however clear may be
the case, and however much satisfied a party may be that he has
justice on his side, he can never have any reliance that he may not
on the day of trial be defeated by some quirk, quibble, or
oversight, against which, in other modes of trial, some remedy might
be found, but which this summary and peremptory form of proceeding
does not admit of. In a great number of the trials which have taken
place, an impression very generally prevails that justice has not
been obtained; yet the attempts to get redress have generally
failed, and have involved the parties who made them only in greater
expense.
Trial by jury evidently takes its origin in those times when law has
not yet become a science, and when no such profession as that of
lawyers exists. Then the baron, or other feudal superior—the judge
in time of peace, and the leader in war—assembled his vassals, who
were as ignorant as himself, for the adjudication of such disputes
as arose. This practice the English— ever remarkable for their
reverence for antiquity, their attachment to established forms, and
dread of innovation—have always adhered to, and gradually moulded,
so as to adapt it to a state of matters very different from that for
which it had originally been intended. In this process, how^ ever,
as in many others, those who affect to respect so much the wisdom of
our ancestors have not always been guided by their principles. We
have a striking instance of this in the regulation which requires
the jury to be unanimous in their verdict. By the ancient English
practice unanimity was not required; all that was needed was the
concurrence of twelve in the verdict, when the jury consisted of a
greater number.
To this day in England, a grand jury may consist of any number from
twelve to twenty-three; but a presentment cannot be made by fewer
than twelve. So, in the High Court of Parliament, and the Court of
the Lord High Steward, a Peer may be convicted by the greater
number; yet there can be no conviction unless the majority consists
of twelve, at least. When, therefore, in the progress of time, only
twelve jurymen were impannelled, there became a necessity of their
concurring in opinion; and, in this way, the absurdity of unanimity
was reached. Of the manner in which absurdities once established may
be defended, we have a fair specimen in a treatise of Lord Somers, a
writer of some pretension at the end of the seventeenth century. He
remarks—In analogy, of late, the jury has been reduced to
twelve—like as the prophets were twelve, to foretell the truth; the
apostles twelve, to teach the truth; the discoverers twelve, sent
into Canaan to seek and report the truth ; and the stones twelve
that the heavenly Jerusalem is built on; and, as the judges were
twelve, anciently, to try and determine matters of law; and always,
when there is any waging law, there must be twelve, to swear in it;
and also, as for matters of state, there were twelve councillors of
state ; and anything now which any jury can be said to do,-must have
the joint consent of twelve; otherwise, it is, in the construction
of law, not the doing of the jury, but of private persons, and
void/* Yet the necessity of unanimity, which can he supported only
by such absurd arguments as the preceding, and which has been
reprobated by Sir William Blackstone and other English lawyers, “as
repugnant to all experience of human conduct, passions, and
understandings,** has, in Our blind adoption of English forms, been
made a part of the system of jury trial in Scotland in qivil causes.
Whether jury trial in England la so valuable an institution, and
worthy of the praises so fulsomely lavished on it, is a question on
which we shall not enter. But it is easy te see that a procedure
which has been familiar for centuries, which has been engrafted on
and grown with the law, and for the conducting of which peculiar
facilities exist in England, may there be found beneficial, while it
may be totally unfitted for the present state of the law and the
habits of the people of Scotland. In England the law appears much
more fixed than with us; it having sometimes occurred that many
years have elapsed without the judges in some of the courts having
once differed in opinion. The English lawyers are also, we suspect,
much better acquainted with their law, than the Scottish have
generally been with theirs; the former making it the constant and
unremitted study of their lives, while politics and other pursuits
have always occupied a great proportion of the time of Scottish
lawyers. Lord Mansfield once remarked, that, if Blackstone’s
Commentaries had been published when he was a student, they would
have saved him five years’ study! Sergeant Marryat, on being asked
if he had read some new publication, observed, that he had not
looked into an unprofessional book for thirty years. One of the
judges of our Supreme Court characterised the English judges as “
legal monks.** Matters are managed differently in Scotland. The
first step of promotion at the bar is the appointment of deputy to
the Lord Advocate of the day, necessarily a political office; next a
sheriffship, worth from £300 to £800 a-year, and having some
patronage. Besides numerous clerkships, there are about thirty
sheriffs; and, although they are judges having jurisdiction, both in
civil and criminal cases, very little inferior to that of the
8upreme Court Itself, there never, we believe, was a single instance
of the appointment being given to a lawyer of political opinions
opposed to those of the minister of the day; or, indeed, we ought
rather to say, that keen political partisanship has uniformly been
considered the sole test of fitness for that important office.
Matters have hardly been better in the Supreme Court. The
appointment of a political opponent is never made, as long as any
materials for the office, however inferior, are to be found on the
side of the party in power. The great weakness of the Scottish bar
at present is to be attributed to this unprincipled system. The
Tories, during their long career of power, left the eminent Whig
lawyers of long standing at the bar, till there were so many of them
that it was unnecessary to employ the younger men in the management
of any law-suit. Thus, the latter had not a fair opportunity of
exercising their talents, and of distinguishing themselves; and many
who might very probably have been at the head of the profession,
left the bar in disgust. At length the bench became so much inferior
to the bar in knowledge and talent—by the appointment of men whose
chief qualification for the bench, in some instances, was, that they
could not do so much mischief to the government there, as in the
subordinate offices which they held—that 8ir Robert Peel was forced
to break through the established practice, and promote one or two of
the most eminent Whig lawyers to the bench. 8ince their accession to
power, the Whigs, as they are well entitled, have promoted their own
party; and the bench of the Court of Session, instead of being, as
formerly, an undi. luted mass of Toryism, now presents an equal
array of the adherents of the two factions which have so long
divided the loaves and fishes between them. In this way, it has
happened, that all the men of known talent who were at the bar a few
years ago, who have not died, have been removed to the bench. A more
favourable field for the display of talent at the 8eottish bar than
at any former period now presents itself; but, sorry are we to say,
that there is as yet little appearance of the field being occupied,
either by men of talent and learning, or of eloquence and genius.
The lawyer and the orator are both to be sought for.
In the circumstances in which the bar is placed, independence is not
to be looked for. All—witb the exception, perhaps, of one in a
hundred— attach themselves to one or other of the dominant parties,
hitherto the sole depositaries of power in this country.
Partisanship is a better recommendation to promotion than learning.
During the volunteer mania, for example, almost every person
connected with the Court of 8esaion was enrolled. The Lord President
of the Court was the Colonel; and the steady attendance of the
officials in the field was conducive to their advancement, in at
least as great a degree as the punctual discharge of their duties in
the Parliament House. At all political dinners, the law. yen are the
chief spokesmen, and in every job they are the tools the most to be
relied on. Whether in such a state of matter the bar or bench is
likely to acquire that profound know-ledge of the law, and that
readiness in its application, which jury trial in civil causes
imperiously demands—where the mo6t difficult questions may suddenly
arise, and must be instantly argued and decided, without time for
reflection or reference to books of authority—may, we humbly venture
to think, be well doubted.
Another impediment to jury trial in Scotland, is our juries. We do
not impugn their integrity, though one or two cases have occurred
where the conduct of particular jurymen has been called in question
; but to the fact tbat, in London and the large towns of England,
juries are to be found of a very superior kind to those we have in
Scotland. These jurymen consist of eminent merchants and intelligent
men of business, who, in numerous instances—as in lawsuits among
merchants—are better qualified to instruct the court than to receive
directions from it, as to the verdict they should pronounce. Hence,
at Guildhall, instead of the three or four hours* harangues which
the judges hero think it necessary to address to the jury, the only
remark the court often make, is—“Gentlemen, you moat be much more
familiar with the matter which has formed the subject of this day's
investigation than I can pretend to be, and your own experience will
teach you where the justice of the case lies. I, therefore, consider
it unnecessary to trouble you with any observations.4 It is no
unusual thing for the English judges to send for eminent merchants
to their chambers, for the purpose of being informed as to their
practice in mercantile questions. The trying a case with juries
composed of such men, is a very different matter from doing so with
juries ignorant of all sorts of business, whose only qualification
is the possession of property of £6 of yearly rent, or movables to
the amount of £200; aud who often, from the beginning to the end of
a trial, never comprehend the nature of the subject in dispute.
In Edinburgh, the exemption of the members of the College of Justice
from serving as jurymen, has an injurious effect; and we have heard
-counsel of much experience in jury trials state that they never saw
a good jury, except in Glasgoe—that city and neighbourhood being the
only place in Scotland which furnishes intelligent mercantile men in
sufficient number to afford materials for efficient juries.
The consequence of having juries of shoe-makers, cow-feeders, tavern
keepers, sheep-farmers, and so on, is, that, if the case is not
exceedingly simple, they soon become bewildered by the conflicting
evidence, and the contradictory speeches of counsel; and they could
come to no verdict whatever, did they not regulate themselves by the
address of the presiding judge, which is generally a strong pleading
for one or other of the parties; for Scottish juries are never left
in any doubt how the court would decide the question. In ninety-nine
cases out of a hundred, the opinion of the judge is the-verdict of
the jury: in the hundredth the jury, often from mere obstinacy, and
to assert their independence, give a contrary verdict. In one case—
where a large estate, too, was at stake—it was suspected that the
jury had decided their verdict by lot; but, as the court ruled that
the jurymen themselves could not be examined as witnesses, and no
other person, of course, was present, it was impossible to ascertain
the truth.
The great length of the trials is an evil not to be disregarded. It
is no unusual thing in England to try 150 or 200 causes in fourteen
days; in Scotland, a trial generally-lasts ten or twelve hours;
and*to get through ten in five days, would be* considered great
work. The cause of the length of the trials, is the examining of
more witnesses than are necessary, and the extreme length of the
speeches of counsel, to which is sometimes added a tedious charge
from the bench, recapitulating the whole evidence which the jury
have just heard from the mouths of the witnesses themselves.
But the unpopularity, or rather failure, of jury trial in Scotland
is, in part, also, to be attributed to other causes besides the
unfitness of this sort of proceeding to the state of the law and of
the country. As originally established in 1815, the Jury Court was
of so anomalous a kind that it was not easy even for the
practitioners themselves to determine whether it was a distinct
court, or merely a branch of the Court of Session. The separate
functions of the Jury Court and Court of Session were so little
fixed, that frequently a cause was bandied from one court to
another, until the litigants were exhausted by the delay and expense
thus occasioned; nor were they without the suspicion that remits
were occasionally made for the purpose of getting rid of a
troublesome case. Then, instead of leaving the general issue to the
jury'—for example, if the question were regarding the authenticity
of a deed, instead of putting the question —Whether it was or was
not the deed of the party? the jury were asked, Whether be could
write? Whether he could see to write? Whether he could read a
written paper? and numerous other questions; the result of which
was, that, although the jury might be of opinion on the whole that
the party was in the right, yet they found themselves compelled to
give a verdict against him, simply because they could not find any
one of the issues among which the case was frittered away, in his
favour. On the other hand, the objection to general issues is
obvious; for, by resorting to them, the jury is made the judge of
the law, as well as the fact—a state of matters which we cannot
consider satisfactory -in the present advanced state of the law,
when no one can obtain an accurate knowledge of it without
dedicating his life to its practice and study. The ordinary notion,
and one which tyrannical judges have in all ages inculcated, is,
that the jury have nothing to do with the law, but only with the
facts of the case; but this* is incorrect. For example, to take a
simple case—that of murder:—The jury have not to find merely that A
fell by the hand of B; but whether A was murdered by B; whether the
offence of murder has been committed—a question which no one can
solve who does not understand what is the legal definition of the
crime of murder. The same remark applies throughout. Thus no jury
can decide whether a document ie the deed of a party, until they
understand what a probative writ is in Scottish law. The Court, no
doubt, explains the law; but the jury are not bound to take the
explanation given their, but may decide the matter according to
their own notions. Thus, for example, no one doubts that, in our
law, to occasion death in a duel is murder ; yet no jury in modern
times can be prevailed on to convict a person who has had the
misfortune to kill his antagonist in a fair duel. Numerous other
instances in trials for libel, sedition, &c., might be pointed out.
In England, juries have not hesitated to intrude on the undoubted
province of the Court—that of inflicting punishment. When stealing
in a dwelling-house, to the extent of 40s was a capital offence,
juries did not hesitate to return verdicts contrary to the fact, in
order to save the accused. In numerous instances, they returned
verdicts of stealing to the amount of S9s.v where the property was
proved to be of much greater amount. In one case, such a verdict was
returned, though among the articles stolen, was a Bank of England
note for £10!
Another cause of unpopularity ia the unnecessary and uncalled for
introduction of English technicalities. The constant use of
affidavits on the most trivial occasions, the adherence to English
forms in the notices of motions for trial, &c«, and in many other
matters of no nonsequenoe in themselves, are found annoying to the
practitioners, and expensive to the litigants. The judge who
originally presided in the Jury-Court, an English lawyer, being
necessarily ignorant of the manner in which law business is
conducted in Scotland, and enamoured of the law practice “in the
other end of the island,” was ill fitted to engraft the new system
on the administration of the Scottish law. The inferior officers of
the Court, though ignorant of the mode of conducting jury trials in
England, and ihost of them having no professional experience of any
kind* aped, to the best of their ability, the language of the head
of the Court. Being all paid by salaries, and so, independent of the
practitioners, they do not give that accommodation and those
facilities to which the practitioners have been accustomed from
officers paid by fees, and where there is a competition for
employment, by a choice being given of more than one officer. For
example, the issue clerks insist on counsel and clients attending
them, to adjust issues, precisely at the time when they are least
likely to be at leisure; that is to say, when both divisions of the
Inner House and three or four Lords Ordinary are sitting hearing
causes. Although all the offices in the Register House, connected
with the Court of Session, are open ia the evening, that connected
with trial by jury ia open only from two to four. The trouble given
by these inconveniences cannot be estimated by any one who has not
experience in such matters. Twenty or thirty meetings often take
place, and an expense of forty or fifty pounds is frequently
occasioned in the adjustment of a single issue j for it is very
improbable tt> find three or four counsel disengaged at the hour at
which alone the issue clerks will give attendance. In the case of
jury trial, as everjf-1 when else, the pernicious effects of high
salaries is experienced. By giving £600 cr £800 a-year, where £900
or £300 an sufficient, you secure the appointment of persons, who
think signing a receipt for their salary is quite sufficient duty,
and who look upon attendance in their offiees, and answering the
inquiries of the practitioners, as a task beneath them.
The judges who now preside Over jury trials, labour under the
disadvantage of having hid no experience in such matters while at
the bar; And it has been rather ingeniously managed, that those who
had acquired tome experience under the original constitution of the
court, are not required to attend and give their assistance in the
trials which take place at Edinburgh—always the most important.
The great expense to be incurred in a single day, is another cause
of the dislike to jury trial. Accounts of expenses, amounting to
£300, £400, £400 for each side, are by no means unusual, and many of
much larger amount could be pointed out. It is true that, in the
sixty-three causes first tried, the expense averaged £119 for each
party; but, when the trifling nature of some of the causes is
considered, the expense will be found greatly beyond the veins of
the matter in dispute- Indeed, a large proportion of the oases tried
hove been actions of damages for technical blunders, occasioning no
loss to any one, but regarding which our courts, of late years, have
become singularly scrupulous, or for trifling injuries, which would
never hive been brought, had it not been for the establishment of
trial by jury. For example, on the Perth circuit in 1393, an. action
of damages against an innkeeper was tried, for dismissing a cook as
unqualified, she having, as he alleged, spoiled a wedding supper. To
decide this important matter, a judge of the jury court, in all his
state, with clerks, smeers, counsel, and agents, proceeded from
Edinburgh to Perth; and thirty-six jurymen, some of them from the
counties of Fife and Forfar, were brought from forty to fifty miles,
at a considerable expense, and to the neglect of their own business.
The jury very properly complained of the hardship of being put to so
much trouble and inconvenience to decide so paltry a case. Actions,
however, of equally trifling amount, are every year tried by jury.
The unanimity required of the Jnry has not been attended with so
many bad effects as might have been anticipated, simply because
juries, seeing the absurdity of the rule, and being accustomed to a
majority in all other cases, except civil trial in the Court of
Session, have had the good sense practically to disregard it, the
minority yielding to the majority. To say nothing of the perjury
thus forced, by law, on the jurors, there have been many instances
which prove the necessity of reverting to the recognised rule in
Scotland of allowing the majority to decide. The plausible argument
in favour of Unanimity Is, that, in all cases, the side of truth and
justice is to be discovered, if the jury .take efficient pains. But
those who know any. thing about a court of law most be aware that,
in a large proportion of law-suits, the right is net entirely on one
side; but, on the contrary, that, as in most other disputes, both
parties are very generally to blame. Besides, in questions of
evidence, the testimony of the witnesses and the documents on each
side may nearly, or altogether balance each other. Such a case, for
example, was the famous Douglas cause. The President of the Court of
Session decided it one way, and a majority of a single vote in the
House of Lords the other. Now, when would the judges or the Peers
have come to an unanimous judgment in such a case? In questions of
law even, the arguments and authorities on the opposing sides, may
leave the point exceedingly doubtful, of which we have daily
experience. It la in vain, therefore, to assert, that, in all law-cuita,
one of the sides is absolutely in the right. . 80 far from it, that
it vary seldom happens.
The manner in which juries proceed in assessing damages is too
valuable an illustration of the folly of requiring unanimity, to be
passed over. Instead of the verdict In such cases being the
unanimous opinion of the jury, it is not the right of any one of
them! The jury, after some talk, finding they cannot agree on the
sum to be swarded, write down what each juror is inclined to give,
and, dividing the sum total by peers, the quotient is the verdict,
thus leaving the matter to the decision of Cooker, as judges are
sometimes said to leave their decisions to the dice. Were the
damages each juryman is inclined to give nearly equal, no great harm
would arise; but these are not the cases in which Cocker is resorted
to. It is where there are gnat differences of opinion; and then a
minority of the jury, or a single juryman, may control the verdict
of the whole. 8uppote, for example, tight jurymen think £100 enough,
but four think it should he £800: these four have, in order to
obtain what they conceive the justice of the cast, only each to put
down £400 on the paper; for £100 x 8 == £800, and £400 X4 = £1600,
and £1600 + £800 = £9400 19, gives £800, the verdict required. In
several cases, great trouble baa been given to juries by the
obstinacy of one or two jurymen, whom the rule for unanimity
prevents the majority controlling. No longer than last year, after a
case bad been abandoned by the pursuer, and his counsel declined
addressing the jury, one juror kept the whole jury locked up, and
the Court waiting for three hours, because he would not concur with
the vast. To prepare himself for the task he had undertaken, of
bringing the majority of eleven to ass that the truth was on his
side, he brought a bottle of whisky with him; and it is difficult to
say what might have been the result, had the error not been
discovered and taken from him by order of the Court before the jury
were incloses.
In the anomalous proceeding of trial by Jury, "toe persons ignorant
of the law are called oh. to aid, and, indeed, if they please,
control those whose life has been spent in its study and practice,
it has been found absolutely necessary, for the sake of justice, to
permit the Court to review the proper duties of the jury—that of
judging of the evidence, and of the amount of damages assessed.
Thus, the allegation, that the verdict is contrary to the evidence,
is a good ground for applying for a new trial; and new trials have
been granted on such a ground, even although the verdict was
supported by the charge and opinion of the judge who presided.
Giving too little, or giving excessive damages, is also a ground for
a new trial; and, even although the second jury coincide in opinion
with the first, this is no absolute bar to a third trial. It thus
appears, that, notwithstanding the boasted finality of trial by
jury, there is ample room for further litigation after a verdict is
returned. And so it has been found; for, wherever the litigants have
been sufficiently keen, and rich enough to pay the expense, they
have found ample scope for litigation in excepting to the decision
of the judge in the rejection or admission of evidence, to his
directions to the jury, or to the verdict itself, as contrary to
evidence, contrary to law, or on the ground of the damages being
excessive or the reverse.
Although we have serious doubts as to the utility of jury trial in
civil cases, we certainly do not mean to defend the former practice
of the Court of Session, and which is still followed in all our
inferior courts—that of taking proofs by commission. A commission
was granted to a lawyer, generally of little experience or
knowledge, to call the parties, or their counsel or agents, and the
witnesses, before him; and to write down the evidence of the
witnesses. In the inferior courts, the commission is granted to one
of the clerks of court, or one of the practitioners in general
little acquainted with the rules by which he ought to regulate his
proceedings. Day after day, and week after week, is spent in writing
down an immense mass of matter, great part of which has often little
or no bearing on the point at issue. Objections to witnesses and to
questions, are discussed with provoking and tedious pertinacity;
and, after a great consumption of time, it often happens that the
objection and answer must be written down and referred to the judge
for decision. The sitting is, in the meantime, broken up, and a new
meeting must he held after the decision on the objection is
obtained. When it is considered that there are never fewer than five
persons present at such a proof, and often more—all of whom must he
paid by the litigants—the expense of such a proceeding may he judged
of. At length, after a delay of many months, the proof, now swelled
into a large volume, is concluded; and, to enable the court to judge
of it, the parties are generally allowed to write memorials as long
as itself on its import, in which they take good care to distort it
as much as possible. The judge, who is deprived of the advantage of
judging, from the appearance of the witnesses, how far they are
speaking the truth, and haring no opportunity of expiscating the
facts which appear to him important, is then left to decide the case
in the best way he can; and no wonder the decision is often
unsatisfactory, and is carried from one Court to another, by appeal,
and at a great expense—the costs being now probably more than the
whole sum in dispute—until at length the chequer is shut by the
decision of the House of Lords.
It was to get rid of this system in the Supreme Court, and to check
appeals,5 that trial by jury was resorted to; but we cannot help
thinking that it would hare been desirable to hare tried the
experiment of examining the witnesses, in open Court before the
judges, previously well acquainted with the facts in dispute,
without troubling six-and-thirty shopkeepers, farmers, &c., about
the matter. In Scotland, where the judges are certainly not “legal
monks" whatever they may be elsewhere, but men of the world, the
court is as well fitted to assess the amount of damages for breach
of promise of marriage, assault, or the like, as any jury whatever.
Indeed, in many cases which it is imperative at present to try by
jury, in Scotland, there may be, and often is, no question of fact
at all to be ascertained, and no damages to be assessed—such, for
example, as actions on policies of insurance, where there is no
denial of the facts, but simply a defence in law—as that the voyage
insured was illegal.
As a check on the court, we think the value of juries in Scotland
has been greatly overrated. In ninety-nine cases out of a hundred,
no such check is required; and to apply the incumbrance of a jury
trial to the ninety-nine cases, because it may be useful in the
hundredth, is as sensible a contrivance as to keep the drag
constantly on the carriage wheel, because it may possibly be once
a*day needed in descending a hill. We would allow the parties to
decide whether they would have a jury or not. Why not give them
their choice? The great curse of all legislatures is gouvemer trop.
So much care must be taken of the subject, that he is allowed to do
nothing in his own way. The statute-book is filled with
restrictions, regulations, and prohibitions. Our ancestors
ascertained the lengths of coat tails, of shoe-points, the number of
dishes to be placed on the tables of each rank; exporting a salmon,
or marrying an Englishwoman, have been, in Scotland, alike capital
offences. To this day, it is held dangerous to allow the importation
of foreign grain, and absolutely destructive to the empire to permit
the consumption of foreign meat. On the same principle, the
management of a law-suit is taken out of the hands of the parties
concerned. But the truth is, that, practically, Scottish juries have
not restrained the political inclinations of the court. In 1794, the
jury were as eager for conviction as the court. Under Castlereagh's
reign, in 1817, no greater difficulty was found; and it was from the
vigorous efforts of the bar, in defence of the accused, and not from
the conduct of the jury, that any check was given to the career of
despotism. Still later instances might be pointed out, of the
inefficacy of Scottish juries to protect the subject against the
crown. We suppose ve must not do more than allude to the case of
Gilbert M'Leod, the editor of the "Spirit of the Union" in 1819,
who, although unanimously recommended to mercy by the jury, was
transported for five years, for what was termed sedition. To a man
in his rank of life, the sentence was, in reality, what it proved to
the martyrs of 1794— a capital punishment. The manner of protecting
the subject from the Crown, is sufficiently obvious —viz., by
excluding politics from the bench, and not by going into the streets
and the fields, to find men who will construe the law differently
from the judges of the land. It is a matter well deserving of
consideration, whether the only efficient check is not for the
people to appoint the judges themselves. Why should the expounders
of the law not be elected by popular suffrage, as well as the makers
of the law?
Whatever opinion may, however, be formed of jury trial in civil
causes in Scotland, there can only be one as to the merits of Mr
Macfarlane’t treatise on the subject. In the space of a
moderate-sized volume, he has condensed the substance of many
hundred decisions, besides acts of Parliament, and acts of sederunt,
relative to jury trials. His work is lucid in its arrangement, and
complete in its details; and no counsel nor agent, engaged in a
trial by jury, will do justice either to his client or himself,
without consulting it. It will be found highly useful during the
trial, from the ready solution it affords of the numerous questions,
requiring immediate decision, which arise. The former treatises on
jury trial were, even when published, very paltry performances,' and
now are completely obsolete i from the changes which have taken
place; and every practitioner has long felt the want of such a work
as the present. Nor is it to those engaged in jury trials alone,
that it is valuable.
In conducting proofs before the commissaries, and in cases depending
in the inferior courts, it will be found extremely useful, by
furnishing the rules by which questions relative to evidence, such
as the admissibility of witnesses, the questions which may
competently be pat, the documents which may be received, and the
mode generally of conducting a proof, are to be judged of. The
appendix contains issues applicable in the various classes of
actions, taken from cases which have actually been tried, and all
the practical forms in use in jury causes. Nothing could have tended
more to the safe and satisfactory management of that branch of
business, the roost troublesome and hazardous to the
practitioner-trial by jury—than the publication of this book. |