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§ 2.

JURY

lordships to be too ferious and great an evil to be inflicted by a judge without the intervention of a jury. This has TRIAL, ever been confidered, and quoted, as a leading cafe ".

JURIES then, though not usually employed in the trial of petty disorders and offences against police before inferior courts, are indispensable in a "charge of any grave or se"rious tranfgreffion "," or any crime at all of a higher denomination; which therefore may be laid down as not competent to be tried before the feffions of the peace.

WHEN NE

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§ 3. III. BUT, ex converfo, it cannot be stated that the feffions are competent to take cognisance of all thofe lower offences COGNISor diforders which may be fummarily tried by other magi- THE SESftrates without the formality of a jury-trial. It becomes SIONS neceffary, therefore, more particularly to inquire what of- PEACE. fences they can try.

OF THE

ances in

FIRST, then, the feffions of the peace have the fame 1f, Disturb power with other judges, to punish fummarily, and of their court, or of

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A fimilar decifion was pronounced in the advocation at the inftance of William Brown, March 19, 1783, where the lords found," that the libel or complaint referred to in the "bill of advocation, which contains a charge of different acts of affaulting, wounding, and maiming, "whereby the perfons therein named were in danger of being mur"dered; and also charging, that, in "pursuance of these affaults, the de"fenders feized, and theftuously car"ried off, certain effects belonging "to the perfons affaulted; and con

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'cluding for puuifhment, by whipping, pillory, banishment, or other wife, as to the judge shall seem 'meet, ought to have been tried by

Val. I.

fences a

a jury." The like deliverance was gainst the

given, of the fame date, on the bill
of fufpenfion for William Ballantyne,
who was charged with fimilar offen-
ces, and in a libel which concluded
for the fame punishment. The third
decifion was in the fufpenfion at the
inftance of John Johnston, on whom
the magiftrates of Edinburgh, as she-
riffs of that city, had paffed fentence
of whipping and banishment, on a
charge of affaulting a young woman
in her houfe, and forcibly carrying
her away from thence, under pre-
tence of a warrant which he had
feigned or falfified for that purpose.
1789, 23d February.

240.

b Hume, Crim. law, vol. iii, p.

L

judges.

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own motion, all fuch disorders and mifdemeanours, committed in court during the progrefs of a trial, as are either a disturbance of the judges in the exercife of their functions, or a violation of that refpect and deference which ought to be obferved towards them when proceeding in their office. Such offences may be punifhed fummarily by the court of justiciary, although trial by jury is the regular and ordinary way of trial in that court for all crimes, whether great or fmall; and, for the fame reafon, they are competent before the feflions of the peace, when they are committed against that jurisdiction. We may therefore, perhaps, adopt, with little variation, Mr. Hume's enumeration of offences of this defcription, which indeed he gives, not as applicable to the court of justiciary alone, but to "every judge of what"foever degree." Such are," the hinderance or molefta"tion of the macers, or other officers of court, in their "duty; the ufe of any threatening or contumelious speech "or gefture there, with relation to the judge, or the trial; "any open expreffion, of either cenfure or approbation, of "the proceedings of the judge, as by acclamation or other"wife; nay, the wilful and repeated breaking of filence in "court all thefe are examples of this fort of blameable " contempt, for which the magiftrate may reprove the de"linquent of his own knowledge, and upon the spot. All "wilful difobedience, or grofs neglect of the orders and

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precepts of court, in matters relative to any trial, is in "like manner neceflary to be fubdued without delay, other"wife the course of justice would be liable to be stopped "by the refufal of jurors to ferve, or of witneffes to appear or to answer, and the like a "

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THE sessions appear to have the fame power with other judges of fummarily punishing any "attempts which may be made with relation to any trial depending at the

a Crim, law, vol. iii, c. 6, p. 220.

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"time, or which has recently been fo, to flander the pro"ceedings of court, or to depreciate the character, or fully "the honour of the judges, or to impofe on their wif- ABLE BY "dom, and pollute the channels of justice, to the prejudice SIONS. "of a fair and unbiaffed trial between the parties," as by detaining, misleading, overawing, or corrupting, witneffes; or altering, fuppreffing, or destroying evidence, or by the witnefies themselves, when fummoned to give evidence, not attending, or keeping a contumacious filence, or attempting to prevaricate. But in fuch cafes the offence must have been committed against the court, or in relation to fome procedure of the court, which punishes them thus fummarily. This holds with regard to the jufticiary court itself .

committed

In like manner, the feffions are a competent, and indeed Offences the proper judicature, for taking cognisance of offences com- by their mitted by their own officers in the execution of their duty; by negligence, extortion, and the like.

officers.

ces of which they have

In the fecond place, jurisdiction has been exprefsly com- 2d. Offenmitted to them in certain offences, which may be divided into two claffes; first, thofe mentioned by the ftatutes 1617, 1661, cognisance or by 6 Anne, c. 6, or by the king's commiffion, which toge- neral acts.

* Bell against Dundas. See above, to that tribunal, this was held to be

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a fufficient reafon why he could not
complain to them of thofe irregula-
rities in this brief and fummary fa-
shion; but in the shape of indictment
only, if he should fee caufe to raise
one.
And in like manner was dif-
miffed (January 29, 1798), a com-
plaint at the inftance of the faid
Alexander Ritchie againft Stewart,
Brown, and others, printers and own-
ers of a newspaper, for having pub-
lifhed in that form a partial account,
as he alleged, of the lord advocate's
complaint against him.

by the ge

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3d, Confue

in

ther form the general code of law, touching this magistracy; 2dly, offences committed to them by particular enactments. Both these branches of their jurisdiction will more properly fall to be explained under their respective heads.

In the third place, the feffions have been in the practice rid (too long sanctioned by the fupreme courts to be now rafhly tudinary jupetty delin- queftioned) of exercising jurisdiction in certain petty delinquencies. quencies, which have neither been exprefsly committed to them by any statutes, whether general or particular, nor by the royal commiffion. One example of this is the offence of petty theft, or pickery, or pilfering. In a cafe of this kind, where the fentence, on account of its feverity, and indeed the whole procedure, on account of its irregularity, was disapproved of by the supreme court, not without expreffions of reprehenfion and blame, yet, in general, the jurif diction, though its incompetency made one of the reasons of review, was not doubted of nor discountenanced 2.

Pickery.

66 county, by Mr. A. B.; that, for a "confiderable time past, he has fre"quently loft a number of fowls, " which he verily believes have been "stolen; and that last night he caught on his premiffes and feized David "Wilkie, feuar in Leven, commonly " called Cuffabout, in the act of steal

a David Wilkie against the procurator-fiscal of the justices of Fife, 10th July 1798. The point of jurisdiction was not the principal ground on which the judgment of the justices in this cafe was brought under review. Indeed that objection was very shortly stated, and by no means appeared to be relied upon. Though the court ing his fowls ;-warrant is hereby paffed the bill of suspension, it was "granted, and you are ordered to upon other grounds, not as entertain- "fummon the faid David Wilkie to ing any doubt of the competency. «be, and appear before the said jufWilkie had been verbally complain-tices of peace, in a court to be held

ed of to one of the justices, as having
been guilty of stealing fowls from the
complainer's barn-yard. The justice
upon this wrote the following war-
rant: "County of Fife." "Where-
"as complaint has been made to me,
"the subscriber, one of his majesty's
"justices of the peace for the faid

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on Monday firft, the 4th June instant, at 12 o'clock

noon, to answer the faid complaint, "and other matters touching the "peace, with certification that he "will then be proceeded against, and "no delay granted. Given under "my hand, at this ift of

COGNI8

SIONS.

THIS jurifdiction does not arife from the claufe of the act $3. 1661, respecting felonies and heinous crimes, providing, OFFENCES that " at what time and whenfoever one shall accufe an- ABLE BY "other perfon or perfons to be guilty of treafon, murder, THE SES" or other felony, blafphemy, incest, or any other hainous "crimes, in such cases the faid justice or justices fhall Origin of "forthwith cause such person or perfons to be apprehend- jurifdiction in petty of"ed; and, after inquiry made in the cause, the faid juftices, fences."

"the fatisfaction of the procurator-
"fifcal of the county, himself and
"two fecurities, conjunctly and fe-
"verally, for his keeping the peace
"towards the faid A. B. and all other
"his majefty's fubjects; as likewise
"to his good behaviour for the term
"of seven years, after the expiry of
"the said fix months, to pay the ex-
"pence of the faid bail-bond, his
"prifon-fees, and all other expences,
"and to remain in prifon until this

"June 1798 years. Signed and ad"dreffed to A. T. or any other con"ftable in the county of Fife. This warrant was ferved on Wilkie, who appeared on the day specified; when the complainer and two witnesses having been examined on oath, the jaftices pronounced the following judgment: "The justices having con*fidered the complaint against Da" vid Wilkie, and the depofitions of," &c.; and in confequence of the "former delinquencies and convic❝tions, with the notoriously-bad cha"racter of the faid David Wilkie, "find him guilty of the crime libel"led; and fame time fully confider*ing his circumstances, and looking on him as an incorrigible rogue, "decern and adjudge him to pay the “fum of 10L fterling to the minister " and feffion-clerk of the parish of S. "to be by them applied for the use "the poor of that parish, in name of "fine; and further, decern him to "pay the fum of 20s. in name of ex"perces; and they farther adjudge *the faid David Wilkie to be im" prifoned and confined in the com"mon jail of Cupar for the space of "fix kalendar months; and they fur"ther decern and adjudge him to "find good and fufficient fecurity to

"fentence is fulfilled. Witness our
"hands, at
4th June,
"1798."

Lord Swinton, ordinary, (1798,
28th June) refused a bill of fufpen-
fion prefented against this interlocu-
tor," in fo far as concerns two

months imprisonment, and finding « caution for the complainer's keep"ing the peace for three years after the expiry of the faid two months, "but paffes the bill quoad ultra."Wilkie having preferred a petition to the court against this interlocutor, their lordships did not entertain any doubt that the feffions had jurifdiction in fuch an offence as this; but they thought it irregular and improper that there was no complaint by the procurator-fiscal; and yet a punifhment inflicted-no written com

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