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and ifty years, appeals from the Court of Selfion were only thrice attempted, and each attempt was rejected : therefore, by a parity of circumsances, people would be led to acquiesce in the sentences of the supreme criminal court. Besides, the Court of Justiciary was very submissive to government, its decrees were engines of oppression, the court used often to remit the jury, ordering them to amend their verdiet. Now, it was in vain to think of obtaining relief from par. liament, against an iniquitous sentence of that court, if procured by the influence of the crown ; because, the Lords of articles might put a negative upon hearing of the cause ; and, if the Lords of arcicles failed to do it, the King's commissioner might himself do it. Further, the Privy Council, which was, indeed, a moft tyrannical court, used to interfere with the sentences of the Court of Juficiary, sometimes by mitigating them, sometimes by remitting the punishmenc entirely, and at others, by ordering no sentence to pass upon the verdiet of the jury : nay, there is an instance of the Court of Session suspending and reviewing a decree of the Lord Justice General, although it was * expressly pled, that he was supreme in criminal affairs; and, therefore, the jurisdiction of the court declined.

• Every argument which can be drawn from analogy, or from the foundation of appeals, favours our hypothesis of an appeal lying from the Court of Justiciary. The decrees of the Courts of Session and Exchequer, in Thort, of every supreme court in Britain, are fub. ject to the review of the House of Lords. It would require, then, some very express law to exempt the Court of Justiciary from a ju. rifdition to which all other courts of the fame rank in the nation are subjected. The foundation of all appeals seems to be, that a superior and supreme court is both pofleffed of higher wisdom, and not exposed to that undue influence which may be supposed to have operated in an inferior court; and that, as all inferior courts are limited in their jurisdiction, either in respect of territory, or of the causes brought before them; such as civil, criminal, maritime, &c. a challenge is competent, that the court which pronounced the decree, had no jurisdi&ion. We hold, therefore, that the decrees of every court, which has not an univerlal jurisdiction, must be subject wo review. We have already remarked a cafe in which the Court of Seflion suspended and reviewed a decree of the Court of Justiciary. Let it be sapposed, that the latter had infifted upon its judgment being inforced, and that no obedience was due to the interdict of the Court of Selfion (which it appears would have been well founded), there would have been no poflibility of deciding upon the pretendons of the courts, but by appeal to the House of Lords.

• An appeal muft be founded, either upon a court having exceeded its jurisdi&ion, upon some informality in the proceedings; or, upon wrong being committed by some false finding in law or in fact. Now, in all of these, the lait excepted, ground of appeal may be given by the Court of Justiciary : nay, in one of the cases already noticed, that of Macdonald of Barisdale, the only trial before that court for high creason, since the accession of the House of Hanover, the court not only decided without a jury, but also refused the prin - Stais's decisions, 16th December 1664, Innes,"

foner « There

foner a proof of facts, which, if he had made good, we apprehend Do jury in the nation would have convicted him,

It cannot be, upon the head of trials before this court, being taken by jury, that it is argued appeals should be refused; for this, in England, would tend to exclude almost every appeal: besides, the Court of Justiciary is in use to review the sentences of other courts, such as those of theriffs and of the + Admiralty, which have proceeded upon the verdict of a jury.. And further, the sentences are often not fupported by the verdict of a jury; for instance, when the verdict returned is special, and consequently the guilt is fixed by the court; when there is any informality in the proceedings of the jury, which ought to vitiate and annul their verdiet; or, when the court proceeds to judge altogether without jury. If the case of Drummond the printer is to be made a precedent, and any pamphlet, offensive to government, should make its appearance, there is nothing to hinder the Lord Advocate from libelling the supposed author or printer before the Court of Judiciary, nor to prevent that court from convicta ing the prisoner without a jury, and finding him liable in pecuniary penalties, or fentencing him to pillory and banishment.

It cannot be on account of the want of importance of the causes tried before this court, that it is pretended no appeal lies from it; for what fo facred as life, honour, property, and pofterity ? Neither can it be upon the infallibility of the judges, either real or supposed; for, if it is supposeable, that the judgment of a majority of the Court of Session may be erroneous, furely that of any single * judge in the number may be so : and, within a period of three years, in a matter of life and death, the judgments of the Court of Jufticiary at Edinburgh, and. I of the Circuit Court at Aberdeen, in similar cases, were directly oppofite.

it. Maclaurin's cases, p. 75. 80. In one of the cases alluded to, the Judge-admiral tentenced two men to be hanged. The convicts applied to the Lords of Jufticjary for a review of the sentence. The court, accordingly, pronounced an interdict. The Judge-admiral was of opinion, that the court had no jurisdiction ; and, not. withitanding the interdict, issued ordeis to the magiftrates of Edinburgh to put the fentence in execution ; but the magistrates did not think proper to yield obedience.'

* « The Judges of Justiciary muft all be Lords of Seffion. Any one Lord of Justi. ciary can hold a circuit court; and it has been found by a late decision, that the judgments of the circuit courts are not liable to be reviewed by the Court of Justiciary. Records of Justiciary, in July 1763.'

+ • In the case of Janet Ronald, indi&ted A. D. 1763, for poisoning her fifter, one of the jurymen fell suddenly ill, and the trial was adjourned. Next morning, the jury were inclofed, and returned a verdict, finding the prisoner guilty. But, upon its being pled in arreft of judgment, that the verdict was null, and that no fentence could pass upon it, in consequence of the jury not having been constantly kept togother from the beginning to take the evidence, till they had pronounced a verdiēt, the court dismiiled the prisoner from the bar. But, in the case of Helen Watt and William Keith, indicted for parricide before tbe circuit court at Aberdeen A. D. 1766, a case in which she evidence was so lame, that, although it created a presumption, it af. forded no legal proof of guilt, one of the jurymen went out of coure into the open ftreets: yet the lingle judge who was on the trial, notwithitanding the precedent, and also an act of parliament, over-ruied the objeclion, and condemned the prisoners : but his Majelty granted them a pardon.

• Blit, further, not to compare the decrees of the Justiciary with those of the cir. evit, biti shofe of the judiciary with each other, it was found, A.D. 1754, in the case of Robert Lyle, who was convicted of theft and house-breaking, that iwo jurymen, going out of the court-house, in the midit of the trial, to the distance of about


• There is filt an additional reason why appeals fhould lie from the Court of Justiciary. There is no determined fyftem of criminal jurisprudence in Scotland. It is a matter of doubt what is a crime in the eye of her law, and what not, also what is the punishment annexed*. The libels conclude, that the prisoner, upon being convicted, ought to be punished with the pains of law. Before an ins diament goes to proof, it is always ascertained, indeed, whether a capital sentence can follow upon conviction ; but, in cases not,ca. pital, the degree of punishment to be inflicted generally remains at the discretion of the court. The indictments are sometimes laid upon the facute law, sometimes on the civil, someçimes on the Levitical. The Scots statute-book is full of unrepealed laws, absurd, tyrannical, and oppressive; and (as has been already observed) it becomes a matter of debate, whether they are gone into desuetude. There is no professed treatise on the criminal law of Scotland, that either is, or ought to be considered as an established authority. Now, in these circumstances, to exclude all remedy by appeal, againit the sentences of this court, much more of a single judge upon a circuit, would, in our opinion, be to prevent redress of those wrongs, which, from the frailty or depravity of mankind, may be committed in the dispensing of juftice.

• In a country where such anxiety has been shown to guard againk opprefsion from the crown, it surely will not be said, that the liberty of petitioning for royal mercy is a sufficient remedy against iniquity. Alas! although we live at present under a mild and gracious Prince,

fifty yards, where they got a refreshment of wine and biscuit ; and two more of the jurymen going to a tavern about the like sitance, and there joining a company, drinking ale and punch with them, and chaffering about the lease of a farm, did not vitiate the proceedings. The case of Janet Ronald mentioned above. Now, from Ebese, is follows incontrovertibly, eitber that in A. D. 1754, a person, convicted of

tbeft, suffered dearb, in consequence of an șllegal sentence of the Court of Justiciary; or, bat in 1763, a woman, convicted of poisoning ber hifter, was acquitted, by, an illegal fentence of tbe same tribunal. And, in the case of William Wood, tried at the circuit court of Jedburgh, 27th May 1776, for entering a house, and fealing some pieces of cloth out of an open chest, when the clerk of court was going to inclose the jury in the usual manner, as the acts directed, James VI. part. u. c. 91.: Charles II, parl. 2. feff. 3. c. 16. the judge told them, " That the case was clear ; that there was no necefity for inclofing at all; and that Mr. **** (naming one of the jury) was a proper person to be their foreman.” Not only were his Lordship's dire&tions obeyed, but the jury, after making out a verdiet, finding the prisoner guilty, foowed it torbe counsel for the profecutor, and afked bis opinion if it was a proper verdiet. Al though, on these accounts, the verdict, beyond dispute, was null, the judge pronounced fentence of transportation for life againt the prisoner, and also adjudged him to Navery for three years. In this case, a remedy was attempted, by a bill of fufpenfion, or application for an interdict, presented to the Court of Justiciary. Not only, for the reasons already mentioned, buc because the sentence of transportation to the Colonies could not take place, as they were in a state of rebellion, and that, if he was confined till an opportunity should occur, of transporting him thither, his fentence might turn out to be perpetual imprisonment. But no relief could be granted; for it was found incompetent to bring the sentence of a fingle judge upon a circuit under the review of the whole Lords. In this, as in the case of Keith, his Majesty extended the royal mercy , Records of Jofticiary, 20th December 1753, 18th January 1754, 15th July 1763, 4th February 1777: Printed trial of Helen Watt and William Keith, 1776.'

* • In the case of the Glasgow rioters, A.D. 1725, the Lord Justice General en. tered a protest against the judgment of the court, in finding, that certaia parts of che indictmeot did not infer a capital punilament."


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it must not be forgotten, that, from the influence of the crown, the
chief danger is to be dreaded. Can a man f (as is well said by
a writer on this subject) expect justice from his party, or mercy
from his enemy?” Nay, although the royal mercy be extended, the
reparation is not adequate to the injury. A royal pardon may, in.
deed, heal the wound, but it cannot remove the scar. We approach
the throne, the humble suppliants for favour; but, before a court of
law, we are entitled boldly to demand juitice.

• In a late case, it has been, with great propriety, established as
law, that an appeal cannot be received against an interlocutory sen.
tence * of the Court of Justiciary ; because, otherwise causes might
be protracted unmeasureably. But we can perceive no alarming
consequences from appealing against a definitive fentence. The va
nity of challenging a decree, proceeding upon a clear point of law,
and regular verdiêt of a jury, will be perceived. Although it hould
not operate upon every occasion, it cannot be supposed that the
House of Lords will receive appeals promiscuously; and, at all
events, the appeal may be discussed before there is a possibility of
execucing the criminal. Thus, by admitting of appeals, we are en-
titled to maintain, that a remedy will be provided against the viola-
rion of the most facred rights of mankind, till some one shall fep
forth bold enough to aver, chat, from the history of this court, and
from the study of human nature, no sentence of the court, or of

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t • Maclaurin's cafes, p. 594.'.

* Maclaurin's cases, p. 523.'
I. By act 11 George I. c. 26. in Scotland, no sentence of death, or corporal pa.
nishment, can, on the south side of the Forth, be put in execution in less than thirty

and on the north, than forty days.

After the decisions of the Court of Justiciary mentioned above, it must be con. fessed, that tbis Statute, retarding executions, has not been unattended with good consequences. It was enacted, however, upon an occasion fufficieatly humiliatieg for the country. After the accession of the house of Hanover, the northern cousties of Scotland were reckoned to be exceedingly disaffected to government. Nume. rous bodies of the military were quartered among them, to check and overawe them. As the officers looked upon the inhabitants as enemies to their King, these military gentlemen indulged themselves in an insolence of demeanour, now rarely to be met with among that respectable body; and, when their irregularities were even of luck a nature as to fall within the cognizance of the law, it was thought proper to con. pive at them, or to suspend its execution. In A.D. 1723, an officer went into a dancing-school at Perth, and used indecent familiarities with a young girl. The daacing-master, resenting the insult to his pupil with equal spirit and proprietys leized the officer by the neck, and turned him out of the room; and, as the officer was muttering vengeance, the dancing-mafter allured him, that, should they happen to meet, he would not find him unprovided with a sword. In a few days, accordingly, they met by accident; the officer drew, the dancing master drew also. He parried the thrufts of die former, and could it is said) easily bave put him to death. But a ferjeant, who attended the officer, came behind the dancing-master, and pinioned him, upon which the officer run him through the body, and he died upon the spot. The public were enraged at fo foul a murder ; they were bent en vengeance; they foresaw an interposition of the crown, and were resolved to prevent it. The Provost of Perth fat in judgment upon the officer. He was convicted by a juriy; and was lentenced to be hanged within three funs. He diípatched an express to Londoni applying for a pardon, which was granted ; but he was hanged ere the pardon arrived; upon which the act already mentioned was passed. Although the view of the legillazure was to prevent the law from laying bold on the friends of government; yet, in effect, it has beca che means of saving the lives of subjects, when affected by abíurd and iniquitous judgments, in violation of law.'


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any fingle Lord of Justiciary, ever has been, or will be founded on error, caprice, or corruption."

As civil actions of peculiar intricacy and importance, could only be tried before the Court of Session ; fo anciently, the crimes of rape, robbery, murder, and wilful fire-raising, which were called the four pleas of the crown, could only be tried before the Court of Justiciary, The Court, however, has not, for a long period, poffeffed such exclusive jurisdi&ion; treason being now, perhaps, the only crime which can be tried before the Court of Justiciary alone. In trials before this court, the prisoners enjoy many favourable circumstances. They are always served before-hand with a list of the witnesses to be adduced against them; and, in capital trials, the evidence must be all reduced into writing. But there is no neceflity for the jury being unanimous, the verdict of a bare majority of the fifteen is fully fufficient. If the prisoner be indigent, counsel are always appointed for him, and they are indulged in a liberty, which they take too often, of being extçemely prolix and triling in their pleadings upon the relevancy of che indiament. Thus, from the trials before the Court of Justiciary, and those we have seen at the Old Bailey, although, in both, they appear very fair, yet their manner is extremely opposite. In the latter, they are conducted with plain sense, candour, and expedition ; nothing essential rejected, nothing superfluous admitted : but, in the former, a great deal of wrangling is admitted; fo that, together with the evidences being taken down in writing, the trials are spun out to an immoderate length. A trial is rarely finished in less than a day; they will often take up fortyeight hours; and, upon one occasion, the trial lasted ninety-four hours

* Before this court, the counsel for the prisoner is entitled, by act of parliament, to fum up the evidence in his behalf, and to be the laft speaker, except in trials for high treason; and the address, or charge (as it is called), to the jury by the Lord Advocate, or other counsel for the public prosecutor, is always delivered with the atmost candour. But a notion some how prevails, that the Lords of Justiciary are generally inclined to be unfavourable towards the prisoner; and, in fact, they do frequently address the jury after the counsel + for the priso er has finished.'

After discussing the courts of justice at Edinburgh, Mr. Arnot explains its military government, and its political conftitution. Its revenue, manufactures, commerce, and charitable foundations are then canvassed; and he concludes his work with a description of Leith, which is the port of Edinburgh.



*. That of Provoft Stewart.'

# In a trial before the Circuit Court at Perth, A. D. 1774 (it was only, indeed, a'matter of adjudging to havery for seven years, and transportation for life), we were witness to the judge, after the counsel for the prisoner had finished his argument, addressing the jury; mustering up only the evidence against the prisoner, taking to pieces the argument made by his counsel in his behalf, and declaring (although the proof was by no means direct), that he could not fuffer himself to entestain a notion that the jury would acquit the prisoner.'



Rev. May, 1779

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