Lord Juftice General, who is always a peer of the moft diftinguished rank or influence, the Lord Juftice Clerk, and five Commiffioners of Jufticiary, who are alfo Lords of Seffion. The office of Lord Juftice General bears a fimilar relation, in the Court of Jufticiary, to that of one of the extraordinary Lords formerly in the Court of Seffion, and, like thefe too, ought to be abolished +.

The Court of Jufticiary has a fupreme jurifdiction in criminal affairs. The decrees of sheriffs, and other inferior criminal courts, as well as thofe of the Court of Admiralty, are liable to its review. It has been doubted, how far the decrees of the Court of Justiciary itself are fubject to the review of the House of Lords. This is a matter of great importance; and, in fo far as may be confiftent with the deference due to the refpectable perfons who entertain oppofite notions, we deliver our opinion without diffidence or referve, "That an appeal lies from the Court of Jufticiary to the House of Lords."

The decrees of the ancient court of King's Jufticiary, or Juftice. ayre, from which the prefent court has, after feveral changes, been modelled, were fubject to the review of parliament. That court took cognizance of cauíes both civil and criminal, and thefe too by jury. After the inftitution of the College of Juftice, when the King's Justiciary no longer meddled with civil caufes, we find King James V. taking the opinion of parliament, upon a criminal trial depending before that judge. Even fince the erection of the court into its prefent form, frequent inftances of the reverfal of fentences of §forfeiture occur in the parliamentary proceedings. But further, an ap. pear from the Court of Jufticiary was actually received by the House of Lords, A. D. 1713, and the judgment of that court reverfed. In a late cafe, where a petition of appeal, prefented from that court, was difmiffed, it was only found, "That the faid petition and appeal, was not properly brought;" nothing was decided refpecting the general point.

The ftrefs which is laid upon no inftances of appeal being to be found from the Court of Justiciary, as prefently modelled. to the Scots parliament, is over-balanced by other considerations; besides, it is eafy to explain why there were none. Appeals from the fupreme civil court were not admitted after the inftitution of the College of Juftice, down till the revolution. In that period of a hundred

+ We apprehend there was no fyftem of liberty in Scotland till the union. Since that, we know but of three trials in which the Lord Juftice General prefided. They were all political. In all of them, government exerted itfelf to make the prifoners objects of exemplary punishment. The first was that of the Glafgow rioters; and in it, the Lord Juftice General entered his diffent and protest against the opinion of the ordinary judges, in finding that the rioters were not subject to a capital punishment. The fecond was that of Provoft Stewart. The third was that of James Stewart of Aucharn, for the murder of Campbell of Glenure, the only trial that we know of, in which a Lord Juftice General, and Lord Advocate, condeicended to go upon a circuit, A trial, in which government was fuppofed to have exerted its atmost influence to procure a conviction of the prifoner; and in which, upon his conviction, the Lord Justice General addressed him in a most insulting speech; a speech, which, far from being expreffive of generofity and compaffion, breathed an ardent fpirit of political hatred and refentment. Rec. of Juft. 4th Oct. 1725; printed trial of James Stewart of Aucharn, A, D. 1753.'

James V. parl. 6. c. 69.

$ Law Tracts, p. 276.'

· i. e. conviction of high treason." Maclaurin's cales, p. 581,'

and

and fifty years, appeals from the Court of Seffion were only thrice attempted, and each attempt was rejected: therefore, by a parity of circumstances, 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 pass 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 General, although it was exprefsly pled, that he was fupreme in criminal affairs; and, therefore, the jurifdiction 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 ju. rifdiction 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 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 caufes brought before them; fuch as civil, criminal, maritime, &c. a challenge is competent, that the court which pronounced the decree, had no jurifdi&tion. 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 must 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 lait 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 treafon, fince the acceffion of the Houfe of Hanover, the court not only decided without a jury, but also refused the pri

< Stair's decisions, 16th December 1664, Innes.

foner

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 almoft every appeal: befides, the Court of Justiciary is in ufe to review the fentences of other courts, fuch as those 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 inftance, when the verdict returned is fpecial, 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 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 Justiciary, 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 caufes 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 Justiciary at Edinburgh, and. of the Circuit Court at Aberdeen, in fimilar cafes, were directly oppofite.

• There

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 magistrates 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 difmilled 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 ftreets: yet the fingle 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 thefs of the Jufticiary with each other, it was found, A. D. 1754, in the cafe of Robert Lyle, who was convicted of theft and house-breaking, that two jurymen, going out of the court-house, 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 prifoner, 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 obferved) it becomes a matter of debate, whether they are gone into defuetude. There is no profeffed treatise on the criminal law of Scotland, that either is, or ought to be confidered as an established authority. Now, in these 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 redrefs 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 shown 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 biscuit; and two more of the jurymen going to a tavern about the like ditance, 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 perfon, convicted of theft, fuffered death, in confequence of an illegal fentence of the Court of Justiciary; or, that in 1763, a woman, convicted of poisoning ber fifter, was acquitted, by an illegal fentence of the same tribunal. And, in the cafe of William Wood, tried at the circuit court of Jedburgh, 27th May 1776, for entering a house, and ftealing 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 inclosing at all; and that Mr. **** (naming one of the jury) was a proper person to be their foreman." Not only were his Lordship's directions obeyed, but the jury, after making out a verdict, finding the prifoner guilty, showed it to the counsel for the profecutor, and asked his 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 againft 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 fentence 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 Majesty 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 Juftice 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

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, indeed, 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 fentence 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 vanity 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, 46 no fentence of the court, or of

* Maclaurin's cafes, p. 523.'

+ Maclaurin's cafes, p. 594.' By act 11 George I. c. 16. in Scotland, no fentence of death, or corporal punishment, 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 Justiciary mentioned above, it must be confelfed, 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 themielves in an infolence of demeanour, now rarely to be met with among that respectacle body; and, when their irregularities were even of such nature as to fall within the cognizance of the law, it was thought proper to connive at them, or to tipend its execution. In A. D. 1723, an officer went into a dancing-tbool at Perch, and used indecent familiarities with a young girl. The dancing-mader, relenting the infult to his pupil with equal spirit and propriety, tered the officer by the neck, and turned him out of the room; and, as the officer was muttering vengeance, the dancing master affured him, that, should they happen to meet, be would nọc đầd him unprovided with a (word. In a few days, accordingly, they met by accident; the officer drew, the dancing mafter drew alío. He parried the threds of the former, and could (it is faid) eafily have put him to death. But a foreaat, who attended the ufficer, 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 so foul a murder, they were bent on vengeance; they foretaw an interpoution of the crown, and were refolved to prevent it. The Provost of Perth fat in judgment upon the other. He was convicted by a jury; and was fentenced to be hanged within three funs. He dispatched an exprefs 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 bold on the friends of government; yet, in effect, it has been the means of faving the lives of subjects, when affected by abfurd and iniquitous judgments, in violation of law.'

any