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and fifty years, appeals from the Court of Seffion were only thrice attempted, and each attempt was rejected: therefore, by a parity of circumftances, people would be led to acquiefce in the fentences of the fupreme criminal court. Befides, the Court of Jufticiary was very fubmiffive to government, its decrees were engines of oppreffion, the court used often to remit the jury, ordering them to amend their verdict. Now, it was in vain to think of obtaining relief from parliament, against an iniquitous fentence of that court, if procured by the influence of the crown; because, the Lords of articles might put a negative upon hearing of the caufe; and, if the Lords of articles failed to do it, the King's commiffioner might himself do it. Further, the Privy Council, which was, indeed, a moft tyrannical court, ufed to interfere with the fentences of the Court of Jufticiary, fometimes by mitigating them, fometimes by remitting the punishment entirely, and at others, by ordering no fentence to pafs upon the verdict of the jury: nay, there is an inftance of the Court of Seffion fufpending and reviewing a decree of the Lord Justice Ge neral, although it was exprefsly pled, that he was fupreme 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 hypothefis of an appeal lying from the Court of Jufticiary. The decrees of the Courts of Seffion and Exchequer, in fhort, of every fupreme court in Britain, are fubject to the review of the House of Lords. It would require, then, fome very exprefs law to exempt the Court of Justiciary from a jurifdiction to which all other courts of the fame rank in the nation are fubjected. The foundation of all appeals feems to be, that a fuperior and fupreme court is both poffeffed of higher wisdom, and not expofed to that undue influence which may be fupposed to have operated in an inferior court; and that, as all inferior courts are limited in their jurifdiction, either in refpect of territory, or of the caufes brought before them; fuch as civil, criminal, maritime, &c. a challenge is competent, that the court which pronounced the decree, had no jurifdiction. We hold, therefore, that the decrees of every court, which has not an universal jurifdiction, must be subject to review. We have already remarked a cafe in which the Court of Seffion fufpended and reviewed a decree of the Court of Jufticiary. Let it be fappofed, that the latter had infifted upon its judgment being inforced, and that no obedience was due to the interdict of the Court of Seffion (which it appears would have been well founded), there would have been no poffibility of deciding upon the pretensions of the courts, but by appeal to the Houfe of Lords.

An appeal muft be founded, either upon a court having exceeded its jurifdiction, upon fome informality in the proceedings; or, upon wrong being committed by fome falfe finding in law or in fact. Now, in all of thefe, the last excepted, ground of appeal may be given by the Court of Jufticiary: nay, in one of the cafes already noticed, that of Macdonald of Barifdale, the only trial before that court for high treason, fince the acceffion of the House of Hanover, the court not only decided without a jury, but also refused the pri

• ‹ Ştair's decisions, 16th December 1664, Innes.*"


foner a proof of facts, which, if he had made good, we apprehend no 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 fhould be refufed; for this, ip England, would tend to exclude almost every appeal: befides, the Court of Justiciary is in ufe to review the fentences of other courts, fuch as thofe of sheriffs and of the † Admiralty, which have proceeded upon the verdict of a jury. And further, the fentences are often not fupported by the verdict of a jury; for instance, when the verdict returned is fpecial, and confequently 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 verdict; or, when the court proceeds to judge altogether without jury. If the cafe of Drummond the printer is to be made a precedent, and any pamphlet, offenfive to government, fhould make its appearance, there is nothing to hinder the Lord Advocate from libelling the fuppofed author or printer before the Court of Jufticiary, nor to prevent that court from convicting 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 fuppofed; for, if it is fuppofeable, that the judgment of a majority of the Court of Seffion may be erroneous, furely that of any fingle judge in the number may be fo: and, within a period of three years, in a matter of life and death, the judgments of the Court of Jufticiary at Edinburgh, and. of the Circuit Court at Aberdeen, in fimilar cafes, were directly oppofite.


• There

t Maclaurin's cafes, p. 75. 80. In one of the cafes alluded to, the Judge-admiral fentenced two men to be hanged. The convicts applied to the Lords of Jufticiary for a review of the fentence. The court, accordingly, pronounced an interdict. The Judge-admiral was of opinion, that the court had no jurifdiction; and, notwithstanding the interdict, iffued orders to the magiftrates of Edinburgh to put the fentence in execution, but the magiftrates did not think proper to yield obedience.'

*The Judges of Jufticiary muft all be Lords of Seffion. Any one Lord of Jufticiary can hold a circuit court; and it has been found by a late decifion, that the judgments of the circuit courts are not liable to be reviewed by the Court of Jufticiary. Records of Jufticiary, 11th July 1763.



In the cafe of Janet Ronald, indicted A. D. 1763, for poisoning her fifter, one of the jurymen fell fuddenly ill, and the trial was adjourned. Next morning, the jury were inclofed, and returned a verdict, finding the prifoner guilty. But, upon its being pled in arreft of judgment, that the verdict was null, and that no fentence could pafs upon it, in confequence of the jury not having been conftantly kept together from the beginning to take the evidence, till they had pronounced a verdict, the Court difmiffed the prifoner from the bar. But, in the cafe of Helen Watt and William Keith, indicted for parricide before the circuit court at Aberdeen A. D. 1766, a cafe in which the evidence was fo lame, that, although it created a prefumption, it afforded no legal proof of guilt, one of the jurymen went out of court into the open freets: yet the ingle judge who was on the trial, notwithstanding the precedent, and alfo an act of parliament, over-ruled the objection, and condemned the prifoners : but his Majefty granted them a pardon.

But, further, not to compare the decrees of the Jufticiary with those of the cir cuit, but thofe of the Jufticiary with each other, it was found, A. D. 1754, in the cafe of Robert Lyle, who was convicted of theft and houfe-breaking, that two jurymen, going out of the court-houfe, in the midst of the trial, to the distance of about


• There is still an additional reason why appeals fhould lie from the Court of Jufticiary. There is no determined fyftem of criminal jurifprudence in Scotland. It is a matter of doubt what is a crime in the eye of her law, and what not, alfo 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 dictment goes to proof, it is always afcertained, indeed, whether a capital fentence can follow upon conviction; but, in cafes not capital, the degree of punishment to be inflicted generally remains at the difcretion of the court. The indictments are fometimes laid upon the ftatute law, fometimes on the civil, fometimes on the Levitical. The Scots ftatute-book is full of unrepealed laws, abfurd, tyrannical, and oppreffive; and (as has been already observed) it becomes a matter of debate, whether they are gone into defuetude. There is no profeffed treatife on the criminal law of Scotland, that either is, or ought to be confidered as an established authority. Now, in thefe circumftances, to exclude all remedy by appeal, against the fentences of this court, much more of a fingle 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 difpenfing of justice.

In a country where fuch anxiety has been fhown to guard again oppreffion from the crown, it furely will not be faid, that the liberty of petitioning for royal mercy is a fufficient remedy against iniquity. Alas! although we live at prefent under a mild and gracious Prince,

fifty yards, where they got a refreshment of wine and bifcuit; and two more of the jurymen going to a tavern about the like distance, 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 cafe of Janet Ronald is mentioned above. Now, from thefe, it follows incontrovertibly, either that in A. D. 1754, a person, convicted of theft, fuffered death, in confequence of an illegal sentence of the Court of Justiciary; or, that in 1763, a woman, convicted of poisoning ber fifter, was acquitted, by an illegal fentence of the fame tribunal. And, in the cafe of William Wood, tried at the circuit court of Jedburgh, 27th May 1776, for entering a house, and stealing fome pieces of cloth out of an open cheft, when the clerk of court was going to inclose the jury in the ufual manner, as the acts directed, James VI. part. 11. c. 91.: Charles II. parl. 2. feff. 3. c. 16. the judge told them, "That the cafe was clear; that there was no neceffity for inclofing at all; and that Mr. **** (naming one of the jury) was a proper perfon to be their foreman.” Not only were his Lordship's directions obeyed, but the jury, after making out a verdict, finding the prifoner guilty, bowed it to the counsel for the profecutor, and afked bis opinion if it was a proper verdict. Although, on thefe accounts, the verdict, beyond difpute, was null, the judge pronounced fentence of transportation for life against the prifoner, and alfo adjudged him to flavery for three years. In this cafe, a remedy was attempted, by a bill of fufpenfion, or application for an interdict, prefented to the Court of Jufticiary. Not only, for the reasons already mentioned, but 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 cafe of Keith, his Majefty extended the royal mercy; Records of Jufticiary, 20th December 1753, 18th January 1754, 11th July 1763, 4th February 1777: Printed trial of Helen Watt and William Keith, 1776.'

* In the cafe of the Glasgow rioters, A. D. 1725, the Lord Justice General entered a protest against the judgment of the court, in finding, that certain parts of the indictment did not infer a capital punishment.”


it must not be forgotten, that, from the influence of the crown, the
chief danger is to be dreaded. "Can a man † (as is well faid by
a writer on this fubject) 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 fcar. We approach
the throne, the humble fuppliants for favour; but, before a court of
law, we are entitled boldly to demand justice.

In a late cafe, it has been, with great propriety, established as law, that an appeal cannot be received against an interlocutory fen tence * of the Court of Jufticiary; because, otherwife caufes might be protracted unmeafureably. But we can perceive no alarming confequences from appealing against a definitive fentence. The va nity of challenging a decree, proceeding upon a clear point of law, and regular verdict of a jury, will be perceived. Although it should not operate upon every occafion, it cannot be fuppofed that the Houfe of Lords will receive appeals promifcuously; and, at all events, the appeal may be difcuffed before there is a poffibility of executing the criminal. Thus, by admitting of appeals, we are entitled to maintain, that a remedy will be provided against the violation of the most facred rights of mankind, till fome one fhall step forth bold enough to aver, that, from the hiftory of this court, and from the study of human nature, 66 no fentence of the court, or of

+ Maclaurin's cafes, p. 594."


Maclaurin's cafes, p. 523.'

By act 11 George I. c. 26. in Scotland, no fentence of death, or corporal pa nishment, can, on the fouth fide of the Forth, be put in execution in less than thirty, and on the north, than forty days.

After the decifions of the Court of Jufticiary mentioned above, it must be con feffed, that this ftatute, retarding executions, has not been unattended with good confequences. It was enacted, however, upon an occafion fufficiently humiliating for the country. After the acceffion of the house of Hanover, the northern counties of Scotland were reckoned to be exceedingly difaffected to government. Numerous 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 themfelves in an infolence of demeanour, now rarely to be met with among that refpectable body; and, when their irregularities were even of fuch a nature as to fall within the cognizance of the law, it was thought proper to connive at them, or to fufpend its execution. In A. D. 1723, an officer went into a dancing-school at Perth, and ufed indecent familiarities with a young girl. The dancing-mafter, refenting the infult to his pupil with equal fpirit and propriety, feized the officer by the neck, and turned him out of the room; and, as the officer was muttering vengeance, the dancing-mafter affured him, that, fhould they happen to meet, he would not find him unprovided with a (word. In a few days, accordingly, they met by accident; the officer drew, the dancing-mafter drew alfo. He parried the thrufts of the former, and could (it is faid) eafily have put him to death. But a ferjeant, who attended the officer, came behind the dancing-mafter, 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 on vengeance; they forefaw an interpofition of the crown, and were refolved to prevent it. The Provoft of Perth fat in judgment upon the officer. He was convicted by a jury; and was fentenced to be hanged within three funs. He dispatched an express to London, applying for a pardon, which was granted; but he was hanged ere the pardon arrived; upon which the act already mentioned was paffed. Although the view of the legisla ture was to prevent the law from laying hold on the friends of government; yet, in effect, it has been the means of faving the lives of fubjects, when affected by abfurd and iniquitous judgments, in violation of law.'


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any fingle Lord of Jufticiary, 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 Seffion; fo anciently, the crimes of rape, robbery, murder, and wilful fire-raifing, which were called the fourpleas of the crown, could only be tried before the Court of Jufticiary. The Court, however, has not, for a long period, poffeffed fuch exclufive jurifdiction; treafon being now, perhaps, the only crime which can be tried before the Court of Jufticiary alone. In trials. before this court, the prifoners enjoy many favourable circumstances. They are always ferved before-hand with a lift of the witnesses to be adduced against them; and, in capital trials, the evidence must be all reduced into writing. But there is no neceffity for the jury being unanimous, the verdict of a bare majority of the fifteen is fully fufficient. If the prifoner be indigent, counfel are always appointed for him, and they are indulged in a liberty, which they take too of ten, of being extremely prolix and trifling in their pleadings upon the relevancy of the indictment. Thus, from the trials before the Court of Jufticiary, and those we have feen at the Old Bailey, although, in both, they appear very fair, yet their manner is extremely oppofite. In the latter, they are conducted with plain fenfe, candour, and expedition; nothing effential rejected, nothing fuperfluous 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 lefs than a day; they will often take up fortyeight hours; and, upon one occafion, the trial lafted ninety-four hours*.


Before this court, the counfel for the prifoner is entitled, by act of parliament, to fum up the evidence in his behalf, and to be the laft fpeaker, except in trials for high treafon; and the addrefs, or charge (as it is called), to the jury by the Lord Advocate, or other counfel for the public prófecutor, is always delivered with the utmost candour. But a notion fome how prevails, that the Lords of Jufticiary are generally inclined to be unfavourable towards the prifoner; and, in fact, they do frequently addrefs the jury after the counfel + for the prifo er has finished.'

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

That of Provoft Stewart.'

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

REV. May, 1779.

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