Scottish Court of Session Decisions

This was a petition at the instance of William Erskine Bartlett of New York, residing in Edinburgh, setting forth the following particulars. The petitioner was a native and citizen of the United States of America. He was at the date of this case manager of the North British' Rubber Company (Limited), Castle Mills, Edinburgh. He had not been naturalised. His name had been put by the Sheriff-Clerk of Mid-Lothian and Haddington on the roll of persons in Edinburgh liable to serve on juries; and citations were from time to time served upon him. As an alien he was not eligible or liable to serve as a juror. He had petitioned the Sheriff of Mid-Lothian and Haddington to remove his name from the roll, but his petition had been refused. He therefore prayed the High Court to ordain the Sheriff-Clerk to remove his name from the roll, or to pronounce such other order as might be required for the purpose of discharging the petitioner from service as a juror.

The Roll of Jurors is made up by the Sheriffs, under the Act 6 Geo. IV. c. 22, entitled “an Act to regulate the qualification and the manner of enrolling jurors in Scotland, and of choosing jurors on criminal trials there,” and the Act 7 Geo. IV. c. 8, which amends the previous Act in so far only as it relates to the qualifications of special jurors. The statutory qualifications are—(1) Age, between twenty-one and sixty; and (2) having an estate of inheritance, or life estate, in lands worth £5 a-year, or being worth £200 in goods, chattels, and personal estate. The exceptions mentioned in the Act are in favour of peers, judges, the learned professions, public servants and officers, &c. Besides the right of objection of want of statutory qualification (which can be proved only by the oath of the juror objected to), and the unlimited challenge on other cause shewn, there is in criminal cases a right of challenge without cause stated, to the extent of five challenges. There is also a power in the Courts, both civil and criminal, to excuse jurors from service on cause stated in open Court. By the 4th section of the second-mentioned Act it is provided that when any person whose name is entered on the Roll of Jurors dies or becomes disqualified as a juror, whether from loss of property, absence, or other legal cause, the Sheriff may pass over his name in the next return, making an entry of the date and reason.

Argued for the petitioner—The Sheriff is not bound to enter on the roll the name of a person who is incapable at common law of discharging the functions of a juror. At least, under sec. 4 of the second-mentioned Act, the name of such a person ought to be passed over in issuing citations. The Acts were intended to apply only to British subjects. [Interlocutor in petition of The Incorporation of Fleshers, May 29,1826, Shaw's Justiciary Cases, p. 156, where “Her Majesty's subjects” are spoken of. See also Hume on Crimes, ii. p. 314, where, anticipating the decision, he says, “It is not therefore a clear point that by the bare disuse of calling them they have come to be disqualified.”] An alien is at common law disqualified for every public office. [Ross' Bell's Dict, voce Alien, p. 43; Ersk. Prin. iv. 457, where the expression “a jury of his countrymen” occurs. In Reg. Maj. i. 12, 8, the assize is spoken of as “trulie loyall men,” and Hume describes the right as “a birthright.”] The Act 33 Vict. c. 14, sec. 2, no doubt confers on aliens the capacity to hold real and personal property in the same way as natural born British subjects, but it is expressly declared that this section shall not entitle an alien to any rights other than the rights of holding property there mentioned, and shall not qualify an alien for any office or franchise. By 33 and 34 Vict. c. 77, sec. 8, which applies only to England, it is specially provided that aliens domiciled for ten years in England and Wales, and otherwise qualified, shall be liable to serve on juries and inquests. [In the English Jury Act, 6 Geo. IV. c. 50, it is provided (sec. 3) that “no man, not being a natural born subject of the King, is or shall be qualified to serve on juries or inquests, except only in the cases hereinafter expressly provided for.” The 47th section then provides for the right of an alien to be.tried by a jury de medietate linguœ (by a moiety of voices), i.e., the Sheriff is to return for one-half of the jury a competent number of aliens. On this Act it was held ( King v. Sutton, 1828, 6 Barn. and Cress, p. 417) that while alienage was a ground of challenge propter defectum, patriœ, the challenge must be made before trial, and that the verdict will not afterwards be disturbed. Now, however, by 33 Vict. c. 14, sec. 5, the right to a jury de medietate lingua is abolished. In Scotland the right never existed. Hansen, 3 Irv. Just. Rep. p. 3. But see Macdonald's Crim. Law, p. 517, note 2, for a case where Englishmen seem to have served on the trial of an Englishman.]

At advising—