enough, no provision was made at the Union for appeals to the British Parliament, the right of the subject was held by implication to remain intact in this as in other respects; and, consequently, the duty of dispensing justice in the last resort, which had formerly rested with the Parliament in Scotland, was regarded as transferred to that of Great Britain.

2091. Shortly after the Union, accordingly, the forms in use in appeals from the English and Irish Courts of Equity were adopted in Scotch causes; and in 1709 it was provided, in conformity with the English practice, that execution of the sentences of the Court below should be arrested whilst appeals were pending.

2092. Till the recent changes, there were three Courts in Scotland, the judgments of which might be carried directly to the House of Lords, the Court of Session, the Court of Exchequer, and the Court of Teinds. The amalgamation of the Exchequer with the Court of Session (ante, p. 501) has now reduced their number to two.

2093. As to Court of Session cases, the general rule is, that none but final judgments of the Inner House, exhausting the whole merits of the cause, are subject to appeal; but where leave is given by the Court, or where the judges have differed in opinion, it is competent to bring even interim, or interlocutory judgments as they are called, before the House. When the latter class of judgments are appealed from, the existence either of one or other of the reasons we have mentioned must be certified by two counsel who conducted the case in the Court of Session.

2094. There is no appeal from the sentences of the Court of Justiciary, nor from the verdict of a jury, even in a civil cause; though, in the latter case, it is competent to bring the directions of a judge in point of law under review of the House of Lords.

2095. The judgments of the House of Lords are carried into execution by presenting authentic copies of them to the Court of Session, with a petition praying that they may be applied by

that Court. The procedure is then regulated by the forms of the Court of Session.

2096. The House of Lords as a Court of Appeal for the three kingdoms is now reconstituted by 39 and 40 Vict. c. 59, but the competency of appealing from Scotch Courts remains the same as before.

III. OF THE COURT OF JUSTICIARY.

2097. The High Court of Justiciary is the Supreme Criminal Court of Scotland. It was constituted, in its present form, in 1672. (1672, c. 16.)

2098. Its president is the Lord Justice-General, an official to whom the criminal jurisdiction formerly vested in the King's Justiciar was confided after the institution of the College of Justice. Until recently, the office of Justice-General was held by a nobleman, who was not necessarily a lawyer; but it has now been conjoined with that of Lord President of the Court of Session. (11 Geo. Iv. and 1 Will. iv. c. 69, sec. 18.) In the absence of the Lord Justice-General, the Lord Justice-Clerk is president of the Court of Justiciary.

2099. Five other Lords of Session, appointed to act as Lords Commissioners of Justiciary, constitute the ordinary judges of the Court. By the Act 31 and 32 Vict. c. 95, sec. 1, "the Lord Justice-General, Lord Justice-Clerk, or any one Lord Commissioner of Justiciary, may preside alone at the trial of any panel before the High Court of Justiciary, and when so presiding shall constitute a quorum of said High Court, provided that in any trial of difficulty or importance it shall be competent for two or more judges of Justiciary to preside thereat." Until the passing of this statute the High Court of Justiciary could not be composed of a less number of judges than three.

2100. The Lord Advocate, the Solicitor-General, and four 1 A very interesting historical notice of the office of Lord Advocate in Scotland, by the late Lord Medwyn, will be found in King's Advocate

Advocates-depute, act for the Crown as prosecutors in the Court of Justiciary. The private party injured may also prosecute in his own name; but this mode of proceeding is nearly unknown in Scotland beyond the precincts of the Police Court,-crimes in all the higher criminal courts being almost invariably prosecuted by the public officers of the Crown.

2101. Trials in the Court of Justiciary are always conducted with the aid of juries, which consist of fifteen men, in place of twelve as in England, and in civil cases in Scotland; and their verdicts are returned by a majority, which is also at variance with the English practice. The verdict of "not proven" is another feature in which the criminal law of Scotland differs from that of England.

2102. It is competent for the jury to return a special verdict --that is, to find certain facts proven, leaving it for the Court to determine whether or not they amount to the crime charged ; but verdicts of this kind are now very rarely resorted to. The practice of the jury writing out their own verdict before delivering it has now been abolished; it being found that much ambiguity is avoided, and the object of the jury more satisfactorily attained, by entrusting that duty to the clerk of Court. But written verdicts may still be resorted to on the direction of the Court, in the case of the jury remaining in deliberation for an unusual time. Where the written verdict is resorted to in such circumstances, it is sealed up by the jury, who are then at liberty to disperse. (9 Geo. IV. c. 29, sec. 15.) But in practice the verdict is almost always delivered by the foreman of the jury orally; it is then committed to writing by the clerk, under the eye of the judge, and read over to the jury for their approval.

2103. No appeal lies to any Court from a decision of the v. Lord Donglas, Dec. 24, 1836, 15 Shaw, p. 325. See also, on the subject of a public prosecutor of crimes, Montesquieu, vol. i. p. 108; Grotius, de Jur. Bel. et Pac., Lib. I. iv. sec. iv. 2; Hume's Criminal Law, vol. ii. p. 127; Berenger, de la Justice Criminelle, cap. iv. p. 257; Thibaut, Instit., p. 167; Stephens' Com. ii. 517 and iv. 421.

Court of Justiciary; and this applies not only to cases in which the decision is a fact arrived at with the aid of a jury, but to those in which it is a point of law determined by the Court. (Mackintosh, 1876, 3 R. H. L. 34.)

2104. Neither can the Court of Justiciary review its own judgments. It has the power of reviewing the decisions of all inferior criminal courts, though not to the effect of setting aside. the verdict either of an inferior judge or of an assize, on the ground that it is contrary to evidence. It is regarded as the province of the jury in all cases, and their province exclusively, to weigh the evidence submitted to their consideration; and no process is recognised in Justiciary similar to the very questionable one of setting aside a verdict as contrary to evidence in the civil courts. But it is the province of the Court, on the other hand, to decide whether the evidence laid before the jury was legal and competent; and it will consequently inquire into the correctness of a decision of an inferior criminal court which is challenged on the ground of a witness having been erroneously received, an incompetent question put, or a document wrongly admitted.

2105. Except in those crimes which are punishable with death, or to which a statute has attached a particular punishment, the Court of Justiciary is invested with arbitrary powers, and may inflict any punishment, from fine to penal servitude for life.

2106. Peers are amenable to the Court of Justiciary for all ordinary crimes; but for treason, or any other felony, they can be tried only by a Court of their own order, assembled by the Lord High Steward.

2107. It can neither try soldiers for military, nor clergymen for ecclesiastical offences.

2108. The Court has frequently asserted its authority to punish innominate offences, which, though clearly criminal in their character, have not been hitherto punished as crimes. This function, however, treading, as it does, very closely on the borders of legislation,--is one which the Court exercises with very great caution.

2109. The Judges of Justiciary hold circuits twice a year, in spring and autumn; and for this purpose Scotland is divided into a Southern, a Western, and a Northern District. (1672, c. 16.)

2110. The Southern Circuit is held at Jedburgh, Ayr, and Dumfries; the Western at Glasgow, Inveraray, and Stirling; and the Northern at Dundee, Perth, Aberdeen, and Inverness. A third Circuit Court for the Western District, for the despatch of criminal business only, is held at Glasgow during the Christmas recess. [By Act of Adjournal in 1881 following on an Order in Council, additional circuits were appointed for Glasgow at such times in October, February or March, and June or July, and for Perth, Dundee, and Aberdeen, at such times in January or February, and June or July, as the Court might from time to time fix.]

2111. Two judges are usually present in a Circuit Court, but it is competent for one to sit and despatch business. At Glasgow the work is divided between two courts sitting simultaneously, with one judge in each.

2112. There is no appeal from a Circuit Court; but the Court itself may certify a case commenced before it to the whole Court of Justiciary for consideration.

2113. Till 1853 the Circuit Courts exercised an important though limited civil jurisdiction; appeals to them from certain of the inferior courts being competent, when the sum in dispute did not exceed £25. The decision of the judges in these cases was final. But the Sheriff Court Act (16 and 17 Vict. c. 80, sec. 22) has restricted this power of review to cases under the Small Debt Act not exceeding £12. These appeals are competent only on the grounds of malice or oppression on the part of the inferior judge, incompetency, including defect of jurisdiction, or such deviations from the statutory enactments as the Court may think took place wilfully, or have prevented substantial justice from being done. Besides the appeal allowed in small debt cases, there is an appeal allowed on the same ground