“Nothing has been published on Scotch Reform, but what you have seen. The subject has very much occupied the public attention. The Lord Advocate tells me, that the project is universally popular; but from other quarters, I have heard a very different account. The old lawyers, particularly those who have done nothing all their lives but write arguments to be printed, and who will now have to learn a new trade, and to address juries, do not at all relish it. I understand that it is proposed that the juries shall be unanimous in their verdicts, although that is not at present requisite in Scotland in criminal cases. Nothing can be more absurd; but I conjecture that the opinion of the Chancellor, and of English lawyers, has decided this important point.”
“The meeting of advocates which you mention, was called with very hostile intentions against the proposed reforms. A motion was made in the meeting, that a committee should be appointed to take the projected plan of reform into consideration, and report upon it to the Faculty of Advocates; and it was settled, that, if the motion should be carried, the persons to be named as the committee, should be those who, it was known, were most adverse to any reform, or, as they express it, to any innovation. The friends of the intended reform were aware of this, and therefore opposed the appointing of a committee, on the ground that it was not yet known what the measures were, by which it was intended to carry the general resolutions into execution; and that till this were known, no committee that could be appointed could form any just opinion upon the subject. They, therefore, moved to adjourn the meeting till November; and the advocates being in general friendly to the reforms, the adjournment was carried by a considerable majority,—I believe about eighty to fifty.
“I have had a good deal of conversation with some Scotch lawyers upon the proposed reforms. Their principal difficulty seems to be, how to ascertain, with their present forms of pleading, what the facts are which are in dispute, and which the jury is to try; or as an English lawyer would express it, to bring the parties to issue upon the facts of the cause.
“New forms of pleading, or a new procedure, seems very much wanted by the Scotch; and without it, it will be very difficult, and, perhaps, impossible for them to adopt the Trial by Jury. The Trial by Jury formerly existed here, in civil as well as in criminal causes; but at that time, the forms of pleading seem to have been the same here as in England. It is intended to alter the present forms of pleading, but yet to alter them only as far as will be absolutely necessary to admit of juries. One of the articles of the Union (the 19th) is found to oppose great difficulties in the way of the framers of the new system. It is declared by that article, that the Court of Session shall remain in all time coming, as it was then constituted, and with the same authority and privileges as before the Union. This article of the Union has been wholly disregarded upon former occasions, particularly when the Mutable Jurisdictions were abolished, though the same, or another article of the Union, declares that they shall be immortal. There is no doubt, however, that this article will be insisted on by the Opposition, particularly by Lord Melville and his friends; (and amongst his friends, and his creatures, are the very great majority of the ancient Lords of Session.) The terror of such an opposition induced the framers of the resolutions moved in the House of Lords, though they meant to substitute three separate and independent courts, consisting of five Judges each, in the place of the fifteen Lords of Session, to call them only Chambers or Sections of the Court of Session; though the Court of Session, consisting of the fifteen Lords, is not to be assembled on any occasion. I find that it is intended that the juries shall be twelve in number, and be unanimous in their verdicts. The persons who think it right to require unanimity in juries, admit that, in theory, nothing can be more absurd; but they say that, from their knowledge of the dispositions of the persons who must serve on juries in Scotland, they are sure that nothing but the necessity of unanimity will induce them to consider at all the verdicts they are to give.”
Lord Grenville afterwards sent, through Lord Henry Petty, the Chancellor of the Exchequer, and Romilly, an invitation to Bentham to be present at a meeting intended to be holden for considering the best means of reforming the judicial system in Scotland. He declined availing himself of this invitation, for reasons which he will be found stating at length; to which has to be added, that of his having found from Romilly, that he, who, from his practice at the bar, and in virtue of his office, was in a peculiar degree competent to assist on such an occasion, had not been invited. The invitation drew Bentham’s attention to the subject, and was the occasion of his producing the Letters on Scotch Reform, (in vol. v. of the Works.)
“I saw, yesterday, the first copy of the Edinburgh Review. There is a long article of Jeffrey’s on the Scotch Bill. He speaks of you,—cites a long passage from Judiciary Establishment,—and after some praises, (you may see his paw in this,) he desires you should be engaged on this subject, you being the only jurisconsult capable of treating it properly.”
Henry Erskine, brother to the Chancellor.
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