That cafe was a misdemeanour. The others were cafes of capital crimes; and, therefore, Lord Thurlow was of opinion, that Counfel fhould be heard on the petition to appeal, and he was heard accordingly. It was the cafe of Robertfon and Barry, who had been committed for a mifdemeanour. The cafe was heard with great attention before Lord Thurlow, the prefent Lord Chancellor, and the Chief Juftice of the King's Bench. After hearing the arguments on both fides, thefe diftinguished perfons delivered feriatim a deliberate judgment, and in the courfe of it the matter was put completely to reft, as, after confidering all the cafes, they thought it was impoffible to decide that an appeal lay from the Court of Jufticiary to the Houfe of Lords, in the cafe of a misdemeanour. That was a term not known to the law of Scotland; but as it was known to the English, he chofe to ufe it rather than the term delict, or any other phrafe of the law of Scotland. In the courfe of that judgment, Lord Thurlow fignified, that he was bound to decide according to the ftrict law; but that expediency required that there fhould be fome Parliamentary regulation on this fubject.

He had therefore brought forward the confideration of this fubject for an enacting Bill for the purpose of regulating this fubject. Thus, he faid, he had ftated how the matter came to originate in his mind, and how he came to propofe a measure on the fubject in that Houfe, never having done fo on any former occafion, whatever part he might have taken in the debates where the subjects had been brought on by other perfons. It came to be neceflary at the fame time to conáder, what was the juft foundation, what was the real ground on which this meafure ought to proceed. As he had already stated, he had had occafion to look particularly into the Hiftory and Articles of the Union, and of thofe Statutes which had paffed relative to the Criminal Law of Scotland fince the Union; and he thought he could ftate, without the poffibility of contradiction, that he was fupported by one of the articles in what he was then to propofe, and that he was walking according to ftrict rules and principles. Such was the nature and object of his proposition, that the 18th Article of Union would juftify, if it did not command it. With regard to the Civil Law, and private Rights of Individuals, that shall not be altered by the Parliament of England, except in cafes of the utmost necefity. But with regard to the Criminal Law, that, on the authority of this Article, might be altered. What had the Parliament of England done fince the Union? He found that the Law of England and Scotland, with refpect to High Treafon, had been made conformable to each other, and that this was done at once. All the forms of proceeding, with regard to this crime, as they exifted in England, were all made the forms in the Criminal Law of Scotland. The mode of trial, the redress after trial, every one thing, in fhort, was incorporated into

the body of the Criminal Law of Scotland, in the fame way as it existed in England by Act of Parliament.

Mr. Adam obferved, there were a variety of other Acts which he should not enumerate. There were nine or ten in number, from the Union to the present time. One of these seemed to be effential; the Act for abolishing Heritable Jurifdictions, and for farther improving the Union; fo that from the year 1706, down to 1748, there were alterations introduced in the Criminal Law of Scotland, which were of the nature of the propofition he had to make to the Houfe, and thofe alterations were made upon the footing of being improvements on the Union between the two

countries.

He obferved, that he had stated the grounds he ftood upon, and the various Acts of Parliament paffed on the footing of the 18th Article of Union, and which went directly to alter the Criminal Law of Scotland. He conceived, therefore, he had done enough, in point of precedent, to fhew the propriety of their entertaining a queftion of this kind, if he could make out, that, in point of policy and juftice, it would be a right Bill for the Legiflature to pafs. He thought it effentially neceffary, in a question which was in fome measure new, and which had not been under the deliberation of that Houfe, to ftate what such a Bill, as he was about to move for, ought to be. First of all, he conceived that, on the authority of the 18th Article of Union, he should endeavour, as much as the two countries would permit, to found his regulations on the Laws of England. He fhould explain the nature of his Bill, and the mode by which he meant to make his appeal.

Gentlemen who belonged to the legal profeffion knew perfectly well, that there was a diftinction with regard to Writs of Error from the Courts at Westminster to the dernier refort. In all civil matters the party was now entitled to a Writ of Error as matter of courfe. But according to the Laws of England, a difference took place in Criminal Cafes with respect to Writs of Error. In the cafe of Mifdemeanours, an application was made to the Attorney-General for a Writ of Error, and it was granted ex debito juftitia. In the cafe of Capital Offences, an application was made to the Crown by Petition. Here it was matter of favour, and was not obtained ex debito juftitia, as in the case of a misdemeanour. Whether this was wife or not he did not enquire. His idea was, in order to have an Appeal from the Court of Julticiary to the House of Lords, to introduce a provifion in the cafe of misdemeanours, to authorife the Lord Advocate of Scotland, like the Attorney General of England, to grant the Defendant that privilege; and in the cafe of Capital Crimes, that an application fhould be made to the Crown to grant it according to difcretion. He obferved, that he had ftated to the Houfe, that an

Appeal,

Appeal, and not a Writ of Error, fhould be granted; becaufe the word Appeal was generally underflood in Scotland; a Writ of Error was not. When an appeal was made from any fentence of the Court of Jufticiary, or the Circuit Courts, his idea was, that the record fhould be moved from the Court of Scotland to the Court of England, for the purpofe of detecting any error that might appear on that record. The regulations of his intended Bill, would only relate to matters of law, and would be confined to errors which might appear on the face of the record. In Scotland, the record was not made up exactly in the fame manner as in England. The verdict of the Jury was delivered in in writing; and it might be a fubject of confideration, whether there fhould not be another Act of Parliament, to authorife the Jury to deliver it in viva voce, as in England. This, by bringing the Judges and Jury together, would give an opportunity for difcuffion, and infinitely forward the ends of Juftice. Mr. Adam here pointed out the manner in which records were made up by the practice of Scotland.

He faid these were almost all the regulations he meant to state. The only thing that remained was, to ftate a few things with regard to the wifdom or folly, the juftice or injuftice, of such regulations as he was about to propofe. He took it to be a propofal to do that which had not been done before, merely because it was not feen that it did not exist. In point of principle, if it had been known at the union, that there was no appeal from the Criminal Courts of Scotland to the Supreme Court in this country, fome regulations must have taken place. He meant to reft this entirely on general principles. If there was a clear, diftinct, intelligible, and, he might fay, univerfal, principle of judicial jurifprudence, it was this, that no Court, where any cafe originated, ought to be the Court finally and alone to determine that cafe. He took that to be a principle which pervaded the whole fyftem of judicial polity both in England and Scotland, with this fingle exception. He had read, that it was repugnant to the principles of our Conftitution, that the decifion of any Court fhould be final where the bufinefs originated. The Court of Jufticiary was the only Court of that defcription in this kingdom. He therefore conceived that the Legislature, by a wife law, if the propofition he was about to fubmit was not wife, fhould take it out of that predicament, and put it on the fame footing with the Court of Seffion, from which an appeal lay to the Houfe of Lords.

With regard to civil matters, there was an appeal of courfe to the Parliament of Scotland; and in confequence of the Union, the British Parliament became, ipfo facto, the Court to try these appeals, which had formerly been made in civil cafes to the Scotti Parliament.

No. 5.

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With

With regard to Criminal Matters in Scotland, any fentence or judgment of an inferior Court (as for inftance, of the Sheriff's Court) might be carried by appeal (by a Bill of Adjudication) before the High Court of Jufticiary; fo that the policy of that part of the country, with regard to criminal matters, was fo far on the fame footing with England; and he fubmitted whether it was poffible for any man to fuggeft the fhadow of a reason why this fingle exception fhould continue. He meant, in what he propofed, no difrefpect to any man, or body of men; he meant no difrefpect to the Scottish Judges; but the true foundation of the univerfal principle of juftice which he had itated, was to prevent thofe who might be poffeffed of the greatest integrity and honour, from falling into an error incident to human nature, even in its beft and most improved ftate. It was well known, that when the fentences and judgments of any court were liable to revifion, they might be prefumed to take more care, and to be more circumfpect that their decifions were according to the principles of juftice, than they might do if their determinations were final. And though the cafes of appeal were extremely few, yet the right of appealing was a matter of the greatest confequence, and made inferior Judges attend to their decifion with a degree of ftrictnefs and accuracy that were obferved by the Judges of England.

The only objection he could conceive that could be made to this. propofition was this; it might be faid, that it would be attended with inconvenience, to bring cafes of criminal law from Scotland to a Tribunal that did not understand the fyftem of Scottish Criminal Law. If that was an objection in matters of crime, it held much more strongly in matters of civil right. The criminal law of every country was extremely alike; murder, for inftance, was the fame throughout the world; robbery, theft, and every other crime that was the fubject of criminal judicature, was of the fame nature every where; and the reasonings of mankind in these crimes was every where the fame. There was not only a strong analogy between the Criminal Law of England and of Scotland, as there was in the law of every other country, but there was a strong analogy alfo in the mode of proceeding. Their mode of Trial by Jury was the fame; every thing was the fame, except one circumftance-a right in the Houfe of Lords to review the sentences of the Court of Jufticiary, and the Circuit Courts. It was impoffible to fuppofe this propofition meant to reflect any dishonour upon any Court of Juftice: if it did, the Judges of England were difgraced every day. It feemed, therefore, to him, on every principle, and in every view he had been able to confider this fubject, that there was no objection whatever to his propofition. His Bill would, in its ultimate tendency, lead to accuracy, both in the mode of examining witneffes, pronouncing fentence, and making

up

up the record. By it likewife the Lawyers of Scotland would be led to the study of English Crown Lawyers, fuch as Hale, Hawkins, Blackstone, and the State Trials. It was formerly the practice of the Ceremonial Courts, to have the evidence taken down verbatim, which made part of the Record. This made Bishop Burnet fuppofe, thefe furnished more authentic records of the country than the trials in, England. That practice was taken. away by an act, and very recently that act was made perpetual.

Mr. Adam concluded a very able fpeech, with moving, "for "Leave to bring in a Bill to give an Appeal to the Lords in Par"liament from Judgments and Sentences of the Court of Justi"ciary and Circuit Courts in Scotland, in Matters of Law, and that this be referred to a Committee of the whole House." On the reading of the Motion,

Mr. Anstruther acknowledged that the propofition was made in a fair and honourable manner, but claimed, at the fame time, an authority not only to diffent collectively from the principles of it, but particularly to the reference to a Committee. That Parliament was competent either to amend or alter the existing laws of Scotland, he had not the ignorance nor the temerity to deny; but he could not conceive that privilege would ever be exerted in the prefent instance; and on that opinion he opposed the Motion, as raifed upon the grounds and principles of innovation. When his Learned Friend firft entered on the difcuffion of his propofition, he had expected to have heard him adduce fome authority for the foundation of an Appeal from the Court of Jufticiary in Scotland to the English Houfe of Peers. No fuch adduction had been made.

He reminded Gentlemen, that, according to this propofition of his Learned Friend, the appeal was not to be made as a common appeal upon a matter of law, but as a writ of error; which mode of proceeding was diverfe from all precedent and example. From the year of the inftitution of the Court of Jufticiary at Edinburgh, which was in the reign of Charles the Second, in the year 1672, to the Union of the two Kingdoms, no dictum, or appeal, had once been made; and from the time the Bill of Union paffed, to the prefent period, the records had been perfect, without a single occurrence to testify the object of the motion in difcuffion. Nay, even antecedent to the formation of the Court of Justiciary, retrogreffively as far as the reign of James the First of Scotland, he could not find one incident analogous; unlefs the cafe of Ogleby, in 1763, 1764, or 1765, he did not perfectly recollect, was stated to be fimilar, which confidered analytically, he could not admit. He requested the attention of the House upon this argument, as it was an object of importance.

The competency of the English Houfe of Peers to decide ultimately on cafes of felony, as a Supreme Court of Judicature, was

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then