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how can these qualifications be ensured? Neither understanding nor probity infallibly accompanies property, yet property is the only ostensible criterion, or medium of forming a judgment on the respectability of an individual. A pauper may be honest, shrewd, and firm; but the law does not acknowledge a pauper in this case: for, supposing him dishonest, wilful, and corrupt, who can punish him for his folly or arrogance? A lodger may be a very fit man; but the law requires a house

injurious to the neighbourhood. The cause required a view of the place: by means of such inspection a Jury could easily determine, whether it were, or were not, a nuisance; but, supposing this dispute to have passed through the regular Courts in Scotland, and to have been brought by appeal to the House of Lords, by what means should their Lordships be better enabled to determine it than the Courts below? Could they go in a body to Edinburgh to examine the premises? Could they depute Lords of their body-implying their ab-holder; for a lodger, though here tosence from Parliament? Could they derive from pictures, models, or, &c. the same satisfactory information, as twelve honest men, acting on their oath, and residing in the vicinity? The reader will remark the attention of the counsel and agents to the interests of their clients on this occasion, with the very poper interference of the Lord Chief Commissioner, to prevent undue influence, on the minds of the Jury, by their questions, insinuations, or comments.

day, may be gone to-morrow. A householder, even, is not enough in some cases, the party must be a freeholder; for, supposing that a householder should abandon his house, none cau imagine that a freeholder should abandon his freehold: he must, therefore be the more responsible man. In the case before us, the Court orders that a Juror be possessed of one hundred pounds vaued rent, or pay assessed taxes to the Crown on premises paying thirty pounds a year, rent. This is certainly a laudable attempt to maintain the respectability of the rising institution.

The manner of an oath is different in

Scotland, from what it is in England; the form of the Juryman's oath is prescribed by Act of Parliament. and the oath is taken by holding up the hand

The clerk shall then say, Gentlemen of the Jury, in this case in which A. B. is the Pursuer, and C. D. is the Defender, you will all stand up, and hold up your hands; and all their hands being held up, he shall then administer to them all, at the same time, the oath as prescribed by the 31st section of the Act of Parliament.

The chief thing remarkable in the first Report, is, the care taken to render proceedings as regular and applicable as possible; the whole of the Judges are consulted; and after this, an opportunity of improvement is afforded, and taken advantage of, by means of re-consideration, before proceedings are finally fixed. In England the System of Juries has been the cherished growth of centuries; in Scotland it was to be established at once. If it performed less than the people-incompetent judges from their want of familiarity with it expected, it would be condemned instanter, without allowance, or hope of The form of a witness's oath is this: amendment. If it performed too much, "You swear by God, and as you shall there could be no want of wicked wits answer to God, at the great day of judgwhose deficient practice would urge ment, that the evidence you shall give to them to every cavil, and to more than the Court and Jury, sworn to try this isordinary perverseness. They knew it sue, in which A. B. is pursuer, and C. D. was deemned a fundamental of public poli-is defendant, shall be the truth, the whole cy in England; and they would not have spared for faunts and insults on their Southern brethren :-Are these the Gods ye worship?

There are some difficulties attending the qualifications of Jurymen: they should be men of understanding, probity, firmness, and sufficient knowledge. But,

truth, and nothing but the truth, as far as you know, and as shall be asked of you."

The foreman of a Jury is, in Scotland, called the Chancellor, and he delivers the verdict. "In case there are no more trials, says Rule 41, the Court shall so signify, thanking the jury for their attendance." This should be more

than a form, for most assuredly, the Jury which well discharges its duty, deserves the heart felt acknowledgements of the Court, and of their country.

Forms of Process, with a view to give efficacy to this measure (entirely new to this Country, and in which they had no precedent in the law of Scotland to guide them) but had to take care likewise to avoid whatever might tend to disturb that pre-law, or the ancient and established practice of the Court of Session.

We proceed now to enable our readers to judge on the general subject, by senting extracts from the first

Court of Session, the LORD JUSTICE

That the Committee felt it to be their

duty likewise to frame the Regulations in

a manner calculated to encroach as little as possible upon the time of the officers of the Court of Session, and to avoid impos

knowing that their time is already fully occupied with their present very laborious vocatious.

CLERK, and the LORD CHIEF COMMISSIONER of the JURY Court. By the 42d Section of the Act of Par-ing upon them any new or additional duty, liament, intituled "An act to facilitate the Administration of Justice in that part of the United Kingdom called Scotland, by extending Trial by Jury to Civil Causes," and which received the Royal Assent on the 2d day of May 1815; it is enacted, That a Report shall be made to both Houses of Parliament, once in every year, on the 25th of March, of all Proceedings had by the Court of Session and the Commissioners of the Jury Court, to be certified under the hands of The Lord President of the Court of Session, The Lord Justice Clerk, and the Lord Chief Commissioner of the Jury Court; and that the said Report shall contain Copies of all the Rules and Regulations to be made for ordering the Forms of Process, and regulating the manner of Proceeding under this Act, as well in the Court of Session as in the Jury Court.

In obedience to the above recited Section, We humbly report, That as soon as the Commissions appointing the Lord Chief Commissioner and Lords Commissioners of the Jury Court reached Edinburgh, viz. on the 18th day of June 1815, the Lords Commissioners of the Jury Court had the oaths of Office and the oaths to Government administered to them in the presence of the Lord President of the College of Justice and the Lords of Council and Session; that immediately thereafter (the Lord Chief Commissioner taking his place upon the Bench) the Lord President, the Lord Justice Clerk, and the Lord Chief Commissioner, were appointed a Committee to draw up Rules and Regulations, and a Form of Process, as prescribed by the 40th Section of the Act of Parliament.

That, although the Jury Court was not fully constituted and established until the 22d of June, the Committee appointed on the 18th had been diligently proceeding in preparing the Rules and Regulations and Forms of Process.

That the Committee had not oùly to cousider the Rules and Regulations and

That besides the attention required in adapting and fitting this new Institution for the administration of Justice to the ancient establishments of the country, the Committee had to foresee aud consider every thing requisite to set this new machine in motion, and to frame the Regulations and Forms of Process in a manner calculated at once to forward the business of the Jury Court, and not to impede the business of the Court of Session; and at the same time to secure as much as possible that dispatch and economy in the administration of justice, which the Legislature had in view in passing the Act of Parliament.

That to attain these ends, an attentive examination into the Rules and Forms of the Court of Session became requisite, and much personal intercourse with individuals officially acquainted with the forms of that Court was required.

That as the Lord President and the Lord Justice Clerk, two of the Committee, as well as other official persons, were occupied with the daily business of the Courts, such intercourse was necessarily regulated and restrained by a due attention to that circumstance.

That the Committee felt it to be their duty, to use their utmost exertions to have a Report ready before the adjournment of the Court of Session for the long Vacation, which takes place on the 12th of July; that they accordingly completed the Report of Rules and Regulations and Forms of Process, which is annexed hereto, on the 8th of July, when it was circulated among the Lords of Session, for their consideration and suggestions.

That on the 11th of July it was regularly published as an Act of Sederunt, sufficient to enable the Court of Session to proceed when it should meet again.

That as the time did not admit of the Report of the Committee being commuuj

cated in July to the Faculty of Advocates, | rect formation of Condescendences and Anthe Society of Writers to the Signet, and swers, and to their being delivered with the Society of Solicitors, so as to receive the more despatch than the ancient practice of observations of those learned bodies pre- the Court required. vious to the 12th of July, it was intimated by the Lord President from the chair, and by letters addressed by his Lordship to the heads of these learned bodies, that the Act was only published provisionally, and that the Court would be ready to receive their communications at its meeting on the 12th of November, when the subject would be resumed.

That as soon as the Court of Session met on the 12th November, the consideration of the Act of Sederunt, passed on the 11th July, was resumed.

We understand that Verdicts have been given in seven causes, upon which it is fit to observe, that if these causes had proceeded according to the ancient course of the Court of Session, they would have been now only in their progress to examination before the Commissioner appointed by that Court, and that, after long examinations and voluminous reports of the proof, they would still have been the source of long and varied litigation.

We have the satisfaction to state, that the appointment of the Clerks of the Jury Court, to settle the Issues, has completely answered the end in view; that the short space of time which elapses between the sending an Issue for preparation, and the return of the draft of accurate Issues cai

That the observations of the learned bodies above referred to were then made to the Court, which, together with sugges tions by the members of the Committee and the other Judges, became the subject of deliberate consideration; and on the 9thculated to try the questions directed by the December 1815, a more perfect Act of Sederunt was published, which is hereunto annexed.


Court of Session, proves this, that further benefit has been derived to the proceedings by having the Issues settied and put in a It is important to observe, that to avoid correct shape before the Lord Ordinary encroachment upon the time of the Office transmits them to the division; that by this of the Court of Session, and to secure des- means, the discretion vested in the division patch and accuracy in the framing and set- by the Act of Parliament of finally orderling and final transmission of Issues, theng the Issues to be tried, is executed with Clerks of the Jury Court have, by a simple more certainty and precision regulation, had the duty of preparing the Issues imposed upon them,

That at the same time, care has been taken to leave the ultimate settling and final ordering of the Issues with the divisious of the Court of Session, with whom the Act of Parliament places it.

It is further to be observed, that it will generally fall to the Lords Ordinary to suggest Cases for Issues, and rarely to the divisions of the Court. It is generally in the commencement of a Cause before the Lord Ordinery, that it appears whether the Case is one to be sent to be tried by a Jury or not; and it can but rarely occur, that a Cause, when it is advanced to the

It appears to us, and we beg leave humbly to observe, that the object of the Legislature has been followed out with be-stage of a proceeding before a division, or coming despatch, in respect to the preparing the Rules and Regulations; and when it is considered that the Institution was entirely new to the Court of Session, the profession of the Law, and the Country, that more could not have been accomplished in the time, or with advantage to the measure.

That the Rules and Regulations and Forms of Process have been found to answer the ends of the Institution in all respects; that they have in no instance infringed upon the ancient practice of the Court of Session, so as to delay justice there; but, on the contrary, they may be said to have rendered the ordinary course of proceeding in that Court more correct and expeditions, by the necessity which now exists of compelling parties to a more precise and immediate attention to the cor

to what is known by the appellation of an inner Pouse proceeding, that it admits of being sent to a Jury, because a Case requiring proof has generally had the luterlocutor ordering a proof pronounced in the Outer House. The exercise of the discretion of the Inner House will therefore appear generally in confirming, or disallowing, the Reports of the Lords Ordinary, and suggesting amendments upon the Issues, and but rarely in acting upon their own original authority in directing Issues.

The second Report is extremely short, and furnishes no extract: the third Report, besides including a list of the causes adjudged, offers the following remarks on the general proceedings.

We have to observe, upon the trial of the first Issue, that there was a View.

That a View being a proceeding entirely new in this country, the Lord Chief Commissioner, in order to secure against any thing passing there which might prejudice the trial of the cause, by the introduction of previous discussion in presence of those of the Jury appointed to view, thought it incumbent on him to attend at the place along with Lord Pitmilly; and he had the satisfaction to find that his presence prévented mistakes, which a want of acquaintance with the nature of the proceeding would have created. That the counsel and agents, who, from mistake, had given their attendance, withdrew, on the Lord Chief Commissioner's suggestion; and the inspection of the steam engine, the erection of which was the subject of the action, was conducted by the shewers in the most regular and proper manner.

That as this was the first meeting of the Court for the trial of a cause by Jury, the Lord Chief Commissioner had to open the Proceedings with some introductory observations respecting the institution. That this, together with certain forms which now, for the first time, required arrangemeut, occupied the Court till twelve o'clock, when the Jury were sworn.That after a trial of nine hours, the Jury retired, and, after being inclosed about twenty minutes, returned a verdict for the Defender.

In this case, no question upon the admissibility of evidence arose. No time was lost in the examination of witnesses; and this, like every other case which has yet been tried, has been conducted in the most orderly manner, and with the greatest ability by counsel. The Jury paid the most unremitting attention to every part of the proceeding.

ther to observe, that in the ordinary course of the Court of Session, many months would probably have elapsed between the ordering of the commission and the return of the proof; after which the case would have been subject to various and repeated litigation upon the effect of the evidence, first before the Lord Ordinary, and then before the Second Division of the Court of Session, and from the importance of the question to the parties, might have been subsequently carried by Appeal to the House of Lords, accompanied with an immense volume of evidence.

the advantages of a tribunal, which decides No case could more effectually evince upon the testimony of evidence examined in its presence, or upon the utility of a View.

We beg leave to remark, that upon this subject [the admissibility of evidence]— the Court think it their duty to hear counsel very fully and deliberately : First, because the course of proceeding in the examination of witnesses before a Commissioner, according to the ancient course of the Court of Session, has from many obvious causes left the law of evidence very loose in many respects. Secondly, Because there are rules of proceeding regulated by practice, and various settled rules of the Law of Scotland, in respect to testimony both parole and written, new to the Lord Chief Commissioner, and which he is anxious to hear fully discussed, that these and in all other matters according to he may be sure of administering justice in the rules of the Law of Scotland.


sides, the doctrine of the law of Scotland in personal actions arising out of injuries to reputation, peace or person, by words spoken or written, by threats, provocatives The Lord Chief Commissioner begs to reto break the peace, assault or blows, have mark, that Lord Pitnilly, who was the made the Lord Chief Commissioner very Lord Ordinary directing the Issue, and desirous to hear the discussion of counsel who signs this Report, has expressed him- fully and at large upon those subjects, that self entirely satisfied with the complete jus- he might not confound the law of England tice which has been done in the cause by on the classes of injuries here stated, or the verdict, and that his object in directing run any risk of directing the jury upon any the Issue has been effectually attained. No rule of law, but that of Scotland. Thirdmotion was made for a new trial; finally, The Judges consider it to be a duty in. judgment was pronounced at the time regulated by the Act of Sederunt, viz. on the 21st day of February 1816.

It is further to be observed, that the Issue was transmitted to the Jury Court on the 29th day of December 1815; so that in nine weeks from the transmission of the Issue, a final judgment, in which there can be no appeal, has been obtained.

In this case, sixty-one witnesses were summoned, and we think it material fur

ruling questions upon the law of evidence, fully and explicitly to detail the grounds of their judgment, both for the satisfaction of the parties in the particular case, and that the principles of those rules as to the admissibility and inadmissibility of evidence, which serve so effectually to the exclusion of falsehood and the admission of truth, may be well understood, and become a part of the system of the law of this country.Lastly, It may be observed, that some time

the Process, who shall transmit the same to the Lord Ordinary, all in the manner prescribed in the third section of this Act of Sederunt, repecting the preparing and

is consumed in the consideration of these questions, inasmuch as they are made the subject of Bills of Exceptions, a course of proceeding which the Court does not think it wise to discourage: some delay neces-transmitting of drafts of Issues which are sarily results from this.

The Jury in this case were inclosed about two hours. The question is one which, from the spirit of parties, would probably have been carried to the House of Lords, and it is a pure question of evidence and damages.

The seven questions which have been thus brought before the Jury Court, have been of cousiderable variety, of much importance to the parties, aud requiring in themselves a deliberate and attentive examination of the evidence, so that they have been well calculated to show the Country the value of the institution of Trial by Jory: Aud from thence this general conclusion may be drawn, that every part of the institution, both the regulations for settling the 'ssues and bring ing them forward to triu, and the pro ceedings at the trip's, have thus far com pletely answered the end in view of the Legislature.

ordered by either division of the Court.That the Lord Ordinary, after the case has thus been prepared, shall order the parties to print the draft of the proposed Issue ; and to put copies thereof, as also of their Condescendence and Auswers, and of the summons and defences, or letters of advocation or suspension (as the case may be) into the boxes of the division of the Court to which the Lord Ordinary belongs; and shall there after, at any convenient time, not less than 48 hours after the papers above mentioned have been boxed, report the case verbally to the division, in order that the division may, in terms of the Act of Parliament, determine whether an Issue shall be sent to the Jury Court to be tried by a jury, or shall dispose of the cause, as in manner and form at present practised. That finally, the Lord Ordinary, if the division approve of sending the case to the Jury Court, shall order the draft of the Issue, as laid before the division, or as

mended and corrected, if this shall appear necessary, to be transcribed upon paper or parchment, and shall pronounce an luterJury Court, and shall direct the process locutor, ordering the same to be sent to the to be re-transmitted in manner directed by the second section of this Act of Sede

We cannot enter into any detail on the forms adopted by the Court. The best lawyers hold that forms of daw are of the essence of law; and this is certain, that when forms are broken through and degraded, the laws themselves are on the point of being sub-ruut, verted, and set aside. We merely insert an article that describes the duty of the Lord Ordinary.

That in every case depending before a Lord Ordinary, which appears to him to be of such a description as to render it fit that an Issue should be sent to the Jury

Court, he shall first enforce the existing Acts of Sederunt with regard to Condes cendences and Answers, so that these papers may be sufficiently precise, and that the porties may meet each other explicitly on the facts mutually set forth; and he shall then order the Condescendence and

Answers to be printed; and printed copies thereof, and of the summons and defences. letters of advocation and suspension (as the case may be together with the whole process, to be transmitted by the clerk of Process to the clerk of the Jury Court, according to the regulations respecting the transmiting of euses required by the first and second sections of this Act of Sederunt. Th the clerk of the Jury Court shall fort with prepare a draft of an issue, and shall return the said draft to the clerk to

That this differs from proceedings in English Courts is no objection to its propriety: the end to be attained is the main thing to be considered.


IT IS ORDERED, That the Issue, [or shall be tried by a jury specially chosen Issues] directed to be tried in this cause, from persous paying cess in the county of

[or the city, town or place from which such jury shall be taken] upon 1001. of valued rent, or paying assessed taxes to the Crown on a house of the reut ther ordered, that the Sheriff of of 301. sterling by the year: And it is fur[or, other officers to whom the authority or precept is directed] do, upon notice of this rule to be given, forthwith return the names of thirty-six persons as special jurymen, to try the said Issue (or, Issues) to the clerk of the Jury Court, according to the form of the statute in such case made and provided.

It must be supposed, that this novelty, like all others, includes an extra ex

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