against any judgment which may thereafter be pronounced by the Court of Session, in so far as by such judgment the several facts established by the proof shall be found or declared.

ACTS OF SEDERUNT.

3. July 1823, which repeals all preceding acts of sederunt. -A. S. 29. Nov. and 24. Dec. 1825.-and A. S. 8. March 1826.

Beveridge's Form of Process, p. 649. and App.

JUSTICIARY COURT.

This court was established at a very early period. But the whole institution was new-modelled by the statute 1672, cap. 16, which is as follows:

Seeing causes criminal are of the greatest importance, and may extend to the lives and liberties of any of his Majesty's subjects, and their persons and fortunes; and seeing the punishment of crimes is of the greatest consequence for the safety and security of his Majesty's person and authority, and the peace and quietnesse of the kingdom, and therefore matters criminal ought to be determined in the most solemn, exact and regular way, that the loyal and innocent may be in full security, and offenders may be punished either in the most public places of the kingdom, or in the places where the crimes have been committed, to terrifie others from the like; that whereas formerly assessors from time to time were appointed to the Justice-General, in matters of importance, which being ambulatory, cannot be so convenient, as if all the members of that court were settled and chosen by his

2

Majesty of fit persons, who might make it their work to make a just and constant procedure in matters criminal:

1. For that effect, that the office of deputes in the justice court be suppressed, and that five of the Lords of Session be joined to the Justice-General and Justice-Clerk, and all of them invested with the same and equal power and jurisdiction in all criminal causes; that the Justice-General being present preside, and in his absence the Justice-Clerk, and in absence of both, that these present elect one of their number to preside, four of the whole number being always the quorum of that court, except at the circuit courts.

2. That they be appointed to meet each Monday at nine of the clock in time of session, and oftner if businesse so require.

3. That the persons to pass upon assizes be listed, and their names and designations insert in an roll to be signed by the said judges or their quorum.

4. That for the splendour of that court, all the judges sit in red robes faced with white, that of the Justice-General's being lined with ermine, for distinction from the rest.

5. That once a year, in the moneth of April or May, circuit courts be keeped, two of their number appointed to go and keep courts at Dumfries and Jedburgh, two at Stirling, Glasgow and Ayr, and other two at the towns of Perth, Aberdeen and Innernesse; the Justice-General being alwayes supernumerary in any of these circuit courts.

6. That it be left and recommended to the judges of that court, to regulat the inferior officers thereof, and order every other thing concerning the said court.

7. That a convenient room be appointed for their meetings, benches for the judges, a place for the Justice-General, more eminent than the seats of the other judges; that the advocats, clerk, assize and pannels have distinct places appointed to them.

8. That the clerk of the court, nor no other person, be present with the assize after they are inclosed.

9. That the chancellor of the assize mark what way every individual person who is upon the assize shall vote, whether condemning or assoilzieing, and that on the same paper wherein the verdict of assize is written; which after the pronouncing of the verdict, is to be closed and sealed with the seals of the court, of the chancellour of the assize, and of so many moe of that number as the chancellor shall think fit, and never to be opened again, but by order of the judges; with certification, if the clerk who shall have the keeping of the said verdict, do make open the same without warrand, he shall be deprived of his office, and otherwayes punished as the judges shall think fit.

10. That in all criminal pursutes, the defender or his advocats be alwayes the last speaker, except in cases of treason and rebellion against the king.

11. That when any criminal libel or summons of exculpation are given and execute against any party, that at the same time, lists of the witnesses to be adduced for proving of the said libel and summons, and of the persons who are to pass upon the inquest, be also given to them; to the effect the party may know what to object against the saids witnesses and assizers, and may take forth diligences for summoning of witnesses for proving of their objections, why any contained in the saids lists should not be admitted to be a witnesse, or upon the assize.

The act 1681, cap. 22, declares.

Our Soveraigne Lord, and Estates of Parliament, doe statute and ordain, that in time of vacance of the Session, three of the Commissioners of Justiciary shall be a sufficient quorum, who shall meet at Edinburgh in the moneth of July yearly, any thing contained in the sixteenth act of the third Session of his Majesties second Parliament contrary thereto notwithstanding.

This last statute was declared to be in force both during the session and vacation of the Court of Session,

by the act 23. of Geo. III. cap. 45, "for regulating "the proceedings of the Court of Justiciary and circuit "courts in Scotland," which is quoted below.

With regard to the jurisdiction of this court, the act 1681, cap. 16, quoted in the title "Admiral,” p. 19, declares all crimes committed on the high seas to be cognisable only by the Judge-Admiral.

The act 1696, cap. 5, quoted in the title "Bank"rupt," p. 103, introduces another exception in the case of fraudulent bankruptcy; but this has been alter-` ed by the statute 7. and 8. of Geo. IV. cap. 20, passed "to regulate the prosecution of fraudulent bankruptcy "in Scotland," which is as follows:

"Whereas, it is expedient, that the Court of Justiciary in "Scotland should have jurisdiction in cases of fraudulent bankruptcy," be it therefore enacted, &c. That it shall and may be lawful to prosecute all persons accused of fraudulent bankruptcy in Scotland before the High Court or any Circuit Court of Justiciary by indictment or criminal letters, and according to the same form and course of proceeding as is used in regard to other offences prosecuted before the said courts: and the judges of the said High Court and Circuit Courts are hereby authorised and empowered to try all cases of fraudulent bankruptcy, and to inflict such punishment on persons convicted thereof, as it is now competent for the Lords of Session to award against persons convicted of the said crime.

II. Provided always, and be it enacted, That it shall and may be lawful for the trustee appointed for the management of the sequestrated estate of any bankrupt in Scotland, or any creditor whose claim has been received and has been duly ranked upon any such sequestrated estate in the sederuntbook kept by the trustee, with the concourse of his Majesty's advocate for Scotland, to prosecute any such offence before

the High Court or any Circuit Court of Justiciary, without prejudice always to the title of the public prosecutor to insist in all such prosecutions.

And the act 1701, cap. 6, excepts those cases of wrongous imprisonment, where the action concludes only for the pecuniary penalties to the injured party. The act is quoted in the title "Wrongous Imprison

"ment."

But, in general, the jurisdiction of the Supreme Criminal Court can only be excluded by a direct and plain application of these statutes, This point is fully illustrated by Baron Hume, vol. II. p. 37. There are many cases in which the Court of Justiciary has an exclusive jurisdiction by statute.

See acts 1455, cap. 45.-1477, cap. 78, directed against sorners, when prosecuted to a capital conviction. 1581, cap. 105, directed against notour adultery. 1587, cap. 27, and 1633, cap. 7, against disturbing ministers or intruding into churches.

1661, cap. 21, against that species of blasphemy which consists in railing against God.

1695, cap. 11, repeatedly denying any of the of the Trinity.

persons

1594, cap. 196, hearing mass, if prosecuted for the capital pains.

1700, cap. 3, being a popish priest, where the conclusion of the libel is, that the offender shall be banished.

1597, cap. 251, against usury, where the corporal pains are insisted for.

1661, cap. 34, and 1698, cap. 6, against clandestine