CHAP. V. FOUNDA TION AND LIMITA TION OF * THEIR JU RISDIC- I. Of the Criminal Jurisdiction of the Seffions. TH HE criminal jurisdiction of the feffions, is, in like manner, derived either from the general statutes, or from particular enactments, or from the royal commiffion. THE first view, whether of the general ftatutes, or of the commiffion, would appear to embrace the whole range of criminal justice, even in its most tremendous aspects. But the commiffion itself admonishes this judicature not to proceed to the determination of causes of difficulty without the aid and direction of one or other of the fupreme judges. How limit. Accordingly, even in England, in matters of greater moed in Eng- ment, and in all questions without clergy, the feffions, agreeably to the direction of the ftatute, content themselves with binding over parties to the next gaol delivery o. land. In Scotland. IN Scotland two reasons concur still farther to limit and diminish their criminal business. The one is, that the fhe FOUNDA LIMITA TION OF RISDIC limited in riff, fince the new regulation of his court, relieves juftices. SI. of the peace of great part of the criminal business, judicial TION AND as well as minifterial, which falls upon their brethren in England; where the office of fheriff, refembling ours in THEIR JUname only, and held annually by one of the gentlemen of TION. the county, is fo far from having the fame various and extenfive jurifdiction with our fheriff-deputes, that the tourne Why more or leet, (the criminal court of the English fheriffs) is faid to Scotland have become almoft obfolete. Mr. Woodefon, therefore, than in England. has explained it very briefly, obferving, that "it would be (6 lofing time to be more particular in treating of this court, "which is almoft become obfolete ;" and, with regard to the county court, (the fheriff's civil court) he obferves, " its "bufinefs and importance has been for feveral centuries depreffed by a great variety of co-operating occurrences: "it retains few caufes unless thofe of replevin, which, as ❝ before intimated, are frequently commenced here, and al"most as frequently removed to a fuperior judicature "." THE other is the different practice of the Scottish and English feflions, in the important particular of jury trial, which the latter ufe always, unless in fummary convictions, regulated by particular ftatutes, (as in revenue queftions, thofe against fwearing, drunkenness, &c. &c.) but the for mer, never. THE records of the Scottish feffions of the peace difcover no trace of any such practice. And in the earliest pleadings ver employJuftices netouching this magiftracy, extant in the books of adjournal c, ed an allize. it is ftated, without contradiction, that they never employed an affize. But there appears to be nothing in their confti 1.10. Vinerean Lectures, lect. i, vol. 1 Blackftone, vol. iv, 280. The Records of the High Court of Jufticiary touching the Magistra cy. FOUNDA LIMITA TION OF RISDIC TION. tution incompatible with that mode of trial. Neither can TION AND it be positively faid that our legislature did not intend them to use it for the general act 1661 authorised them to exeTHEIR JU cute ftatutes which, in certain cafes, inflicted corporal punifhment, and by fome of which the delinquents were exprefsly required to "be put to the knowledge of an affize." Bt, as fir George Mackenzie obferves, they have never been in the practice of executing those criminal statutes according to the directions of the acts 1617 and 1661; and Why the the true reason of their not being accustomed to employ jufeflions ne vey employ ries, feems to be, what the fame author alfo remarks, that juries. "only small matters occurred in justice of peace courts." Their jurisdiction appears in general to have been limited to those smaller delinquencies which, under the denomination of breaches of the police, even our judges ordinary try fummarily. BE the caufe what it may, the fact is certain, and of itfelf excludes them from the cognifance of that clafs of offences, (whether contained in the commiffion and two general statutes, and whether falling under their general powers and natural jurifdiction or not) which other judges must try in the conftitutional mode of a jury trial, the importance whereof would be frittered away, were it in the power of the public profecutor to deprive the subject of the benefit of it, by inditing him before any two juftices of the peace. Two objections have been stated to this doctrine, and ia fupport of the more extenfive criminal jurifdiction of the a In a cafe which will come under ou notice afterwards, the late lord juftice-clerk Macqueen, whose most extemporary opinions were carefully remarked, and will be long remembered obferved that he faw nothing in their constitution incompatible with a jury-trial 15th July, 1795 procurator-fiscal of the ftewartry of Kirkcudbright against Fisher, Cafe of vagrants by the ftatute 1579, ch. 74. Obfervations on parliament 22 James VI, 1617, c, d, FOUNDA LIMITA feffions; firft, it has been faid, that queen Anne's act*, while it provides that the trial shall be by the forms of the law of 1ION AND Scotland, extends the whole powers of the English juftices to TON OF the Scottish, fo far as relates to the preservation of the THEIR JU peace. BUT this cannot make them competent without a jury to the cognifance of any offence, which, by the immemorial practice of the country, had required a jury-trial. The contrary would have been no less than fo far abolishing that great conftitutional fecurity by implication. Accordingly this view of the thing feems to have been taken by the high court of justiciary, in the only cafe where the abstract point has been pleaded before them. THE other argument in favour of these more extensive crimi 16, cap. 6. "judge capital crimes, appears from “Replied.—The act 6 Anne gives Charles Hay againft John Hay, "tion of the peace, and had been in England the justices do not judge power of inquiring into and certi "fying them to the juftices of gaol "delivery; and the 18 Edward III "was reftricted by the ftatute I and "2 Philip and Mary, as lord Hales, "in his Pleas of the Crown, and "Dalton, both obferve." The lorde advocated the caufe, or pronounced a judgment finding the justices incompetent. RISDIC TION. 6 Ann, c. 6. FOUNDA nal powers, has been drawn from the 33d section of the geTION AND neral statute 1661, which provides, " that at what time, and "whenfoever one shall accuse another perfon or perfons to LIMITA TION OF RISDIC TION. THEIR JU-"be guilty of treason, murder, or other felony, blafphemy, "inceft, or any other heinous crimes, in fuch cafes the faid "justice or juftices fhall forthwith cause such person to be "apprehended; and after inquiry made into the cause, the from 1661," faid juftice or justices, if they find cause, shall commit $33, in fa vour of the "the offender to prifon, or take fufficient bail, if the cafe jurifdiction by the law be bailable, and fhall take the information of Argument of the fef fions in great crimes. "the accufer, upon oath, and bind him to profecute, and "fhall take the teftimony and depofition of the witnesses "likewife upon oath, and bind them to give an evidence, "and fhall alfo take the examination of the party accufed; "all which recognisance, informations, depofitions, and exami❝nations, the faid justice or justices fhall certify to the next quarter-feffions, affizes, or criminal courts, respectively, to "the end the justice may proceed against them according to "law." Individual juftices are here, it is alleged, diftinguished from the feffions. The one are to take precognitions, and report. The other are claffed with criminal courts, competent to the trial of the crimes. This conftruction of the act was likewife pleaded in the cafe above cited, but unfuccefsfully. And when that claufe of the ftatute came again under the view of the court, the counsel for the profecution admitted that the words must be taken under the a Charles Hay, in his bill of advocation, having pleaded that the juftices had no jurifdiction in capital crimes, it was anfwered by the profe. cutor," Even by our old law the "juftices might judge in capital "crimes, at leaft in quarter-feflions. "This appears from the inftructions "1661, which empower them to in"quire into feveral capital crimes, "and to certify them to the quarter" feffions or criminal courts. "Replied, Ift, the instructions 1661 "empower the justices not to judge "capital crimes, but only to inquire "and certify as to them." b Procurator-fifcal of the ftewartry of Kirkcudbright, against Fisher, 1795, July 15. |