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SCOTTISH JURIS

piracy, and

bours or near

there be statutory authority to try the offence in the EXTENT OF place of apprehension (1). As regards offences com- DICTION. mitted at sea, piracy is the only crime which the Crimes at sea courts of Scotland have power to try, irrespective of the nationality of the offender, or the flag of the ship (2). As regards all other offences committed in Jurisdiction in ships, it depends upon the position of the ship at the offences in hartime, or upon its nationality, whether there is jurisdic- coast. tion. There is jurisdiction if the ship be within three miles of the Scottish coast (3), or be within a Scottish port or harbour or navigable river, or anchoring ground, whatever be the ship's or accused's nationality (4). But in the case of offences on the high offence comseas, or in foreign ports or harbours, the courts of seas. Scotland have jurisdiction only if the vessel was a British ship; and where the offence is committed in a British subject foreign port or harbour, it is further necessary that the foreign waters. offender be a British subject. This matter is now regulated by statute (5). The Coining Statute gives Statutory jurisjurisdiction to the Scottish Courts to try all coining offences committed at sea, in ships registered at Scottish ports, or ships touching at any Scottish port (6).

mitted on high

in British ship in

diction.

1 The following may be referred to as examples; 5 Geo. IV. c. 84, § 22 (being at large before expiry of sentence). See Jas. Martin, H.C., Nov. 16th 1835; 1 Swin. 1 and Bell's Notes 105.-4 Geo. IV. c. 34, § 3 (desertion of service). See Clark v. M.Naught, H.C., March 9th 1846; Ark. 33.-11 Geo. IV. c. 54 (Tweed Fisheries Act).-7 Will. IV. and 1 Vict. c. 36, § 37 (Post-Office Act). 2 Hume i. 480.

3 It was laid down in the House of Lords as undoubted law that the rights and jurisdiction of a nation extend to a distance of three miles from the shore, in the case of Gammell v. Commissioners of Woods and Forrests, March 3d, 4th, 7th, 8th, 10th, and 28th 1859; 3 Macqueen 419 (Lord Wensleydale's judgment).

-See also Will. M'Alister, and
others, H.C., Nov. 20th 1837; 1
Swin. 587 and Bell's Notes 147.-
Jas. Dalziel, Dumfries, Sept. 29th
1842; 1 Broun 425 and Bell's Notes
146.

4 Lewis v. Blair, H.C., Feb. 25th 1858; 3 Irv. 16 and 30 S. J. 508.

5 Act 18 and 19 Vict. c. 91 § 21. This enactment precludes any such question being raised as was attempted in Jas. Dalziel, Dumfries, April 8th 1842; 1 Broun 217. It also abrogates the law that offences on the high seas can only be taken cognisance of in the High Court of Justiciary. See Will. M'Alister and others, H.C., Nov. 20th 1837; 1 Swin. 587.

6 Act 24 and 25 Vict., c. 99, § 36.

JURISDICTION OF
PARTICULAR
COURTS.

CIARY.
Constitution.

diction,

If a

to try new offences,

In speaking of the jurisdiction of particular courts, courts of radical jurisdiction will alone be noticed at

present. Courts of Review will be noticed later. The COURT OF JUSTI- Supreme Criminal Court is the Court of Justiciary (1),

consisting of seven (2) Lords Commissioners of Justiciary, of whom the Lord Justice General is president. The Lord Justice Clerk is the next in seniority, and the others take precedence according to the dates of

their commissions (3). Extent of juris- The Court of Justiciary has jurisdiction over all Inherent power crimes committed in Scotland or at sea (4).

statute create a new offence, but fix no court for the trial of it, the Court of Justiciary by its inherent power to take cognisance of crime, has jurisdiction to try cases under it (5). Its jurisdiction is excluded

only where by statute a particular court is named for Jurisdiction not trial of offences under it. But although jurisdiction excluded by jurisdiction be given to another court than the Court of Justiciary, being conferred

this does not per se exclude the jurisdiction of the

latter. There must be an exclusion of its jurisdicBut may be tion (6). But it is not necessary that the jurisdiction excluded by implication. should be taken away expressly; this may be implied

from the construction of the Act. Where a statute enacted that offenders convicted for the first or second time “ before two Justices of the Peace,” should be dealt with in a particular manner, and that persons 1 Act 1672, c. 16.

fore is the measure of the juris2 Act 1672, c. 16.

“ diction of the Court. It extends 3 This is the practice now. The " to all criminal causes.' rule seems formerly to have been 5 Hume ii. 40 and cases of Caithdifferent.-Hume ii. 18.

ness and Bisset : and Brown and 4 Hume ii. 31.--Alison ii. 1.- M'Nab there.-Alison ii. 9, 10, In the Lord Justice Clerk Hope's 11. MS. notes to Hume the following 6 Hume ii. 37, 38, 39, and cases occurs—“In considering the ques. of Anderson and others : Hog and “ tion as to the extent of the juris- Bryson : and Vert and others there. “ diction of the Justiciary, the -Alison ii. 8 to 10.-Jas. Affleck general character of the Act 1672 and Jas. Rodgers, Jedburgh, April

c. 16 must be considered. The 6th 1842 ; 1. Broun 207 and Bell's punishment of crimes bears to be Notes 147.-Rob. Millar, March 15th “ the object of the Act, and there- 1843; Bell's Notes 147.

on inferior courts.

CIARY.

charged with a third offence should be tried in the Court of JUSTISupreme Court, it was held that the jurisdiction of the Supreme Court was excluded as regarded first and second offences (1). The jurisdiction of the Court of Justiciary is not Jurisdiction to

try every plainly limited to crimes which are already established by the criminal act,

though novel common law and to special statutory crimes. It has an inherent jurisdiction to punish all acts which are plainly criminal, although previously unknown, and not within any statute (2). The Court of Justiciary is the only competent Court Has privativen

jurisdiction in cases of treason, murder, robbery, rape, fire-raising, certain cases. deforcement of messengers, breach of duty by magistrates, and in all cases in which by statute a higher punishment than imprisonment is directed to be inflicted (3). The Court of Justiciary holds Courts in Edinburgh Executive diri

sion into High and Circuit Courts in certain towns aftermentioned. The and Circuit. Court when sitting in Edinburgh is styled the High Court High Court.

1 Rob. Rowet, Ayr, April 27th Irv. 109 and 31 S.J. 24, in both of 1813 : 1 Broun 540.—Matthew which cases charges of crimes which Robinson or Robertson, Dumfries, had never before occurred in pracApril 27th 1844 ; Broun 176.-- tice were sustained. A further David Bell, April 25th 1850 ; J. illustration is to be found in the Shaw 348. Geo. Duncan, H.C., case of Richard F. Dick and Alex. Feb. 29th 1864 ; 4 Irv. 474 and 36 Lawrie, H.C., July 16th 1832; 4 S.J. 404.

S.J. 594 and 5 Deas and Anderson 2 Hume i. 12.–Bernard Green- 513, where it was argued that as huff and others, H.C., Dec. 19th by Act of Parliament (7 and 8 Geo. 1838; 2 Swin. 236 and Bell's Notes IV. c. 20) power was given to the 172, 174.-Seo also Jas. Taylor and Court of Justiciary to try the ofothers, H.C., March 21st 1808 ; 'fence of fraudulent bankruptcy, it Burnett, Appendix No. 10, and was not an offence which they could Hutchison, vol. 4, Appendix iii., try at common law, and where the No. 16.-Hume i. 495, cases of Court held “ that the crime was Chalmers and others : and Mac- originally cognisable at common kimmie and others there.--i. 496, “ law, and if fraudulent bankruptcy cases of Ferrier : Wilson and Ross were a crime, it was absurd to there, and Wilson and Banks in note " contend that the Justiciary Court i.-There are also later cases which “had no cognisance of it, though illustrate this doctrine, e.g., Will. “ the libel was not laid on the staFraser, H.C., June 21st and July “tute." (See the Jurist Report.) 12tb 1847 ; Ark. 280 and 329, and 3 Hume ii. 58, 59.-Alison ii. 20. Chas. 3weenie, June 18th 1858 ; 3 -ii. 22, 23.

66

Quorum.

ral

diction in Lo

Points of difficulty remitted to whole Court.

COURT OF JUSTI- of Justiciary. One judge can try cases, but in difficult

or important cases, two or more may sit (1). The jurisHigh Court gene- diction of the High Court is universal, so that cases

occurring within the jurisdiction of any Circuit may Exclusive juris- be tried before the High Court. It has also exclusive thians, Orkney, jurisdiction in the three Lothians and in Orkney and and Shetland.

Shetland, in cases which must be tried in the Court of Justiciary, these places not being within any Circuit. Where points of difficulty arise as to relevancy, or as to the effect of verdicts, or the proper sentences to be pronounced, it is usual for the judge or judges to certify the case for the opinion of the whole Court, in which case the seven judges, or as many as can attend, meet and dispose of the matter. The presiding judge in the High Court has no vote, except where the other members of the Court are equally divided (2).

Circuits are held twice in each year, in spring between 20th March and 12th May (3), and in autumn in September and October, and at Glasgow there is a

third Circuit in the end of December or beginning of Dates of Cirenits. January (4). The day of the meeting of each Circuit

Court is determined by an Act of Adjournal passed for the Spring Circuit between 1st and 20th March, and for the Autumn Circuit between 1st and 20th

August (5), and for the Glasgow Winter Circuit before Other judges 20th November (6). The Act of Adjournal deterCircuit may do

mines which judges are to discharge the duties of the Circuits respectively, but if necessary, the judges may act on other Circuits than those for which they are ap

Circuit twice a year, and three times in Glasgow.

than those appointed for

the duty.

1 Acts 31 and 32 Vict. c. 95, $ 1.

2 See observation by Lord Neaves in Jas. Stewart, Ayr, Sept. 11th 1868; 5 Irv. 310 and 2 S.L.R., 276.

3 Act 30 Geo. III. c. 17, § 3.-As the Court of Session now sits till the 20th of March, the period for the Spring Circuit must be held to commence from that date, and it is

further enacted by 11 Geo. IV. and
1 Will. IV. c. 37, $ 3, that where a
Circuit has been held by special
appointment at any place in De-
cember or January, the following
Spring Circuit shall not be held
before the 20th of April.

4 Act 9 Geo. IV. c. 29, $ 1.
8 Act 23 Geo. III. c. 45, $ 1.
6 Act 9 Gev. IV. c. 29, $ 1.

CIARY.

Two judges for

one may sit

May sit in sepa

pointed (1). Two judges usually go on each Circuit, Court of JUSTIbut one judge may competently conduct the business (2). The two judges may sit in separate courts simul-each Circuit, but taneously, for the more rapid dispatch of business (3). alone. One of the judges at a Circuit Court may proceed to rate Courts. another Circuit town and open the Court there, though the sitting in the other Circuit Court be not completed (4). The Sovereign may, by order in council, direct maganda to, dis

+ additional courts to be held in any Circuit town, or alter Circuits. dispense with Circuit Courts held under an order in council (5), or form new Circuits and alter limits of Circuits (6)

The following is the present arrangement of the Circuits :

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WEST.

Subdivision of
Circuits,
West.

GLASGOW :-Shires of Lanark, Dumbarton, Renfrew.
STIRLING :-Shires of Stirling, Clackmannan, Kinross.
INVERARY :-Shires of Argyll, Bute.

North.

NORTH.
PERTH :—Shires of Perth, Fife.
DUNDEE :-Shire of Forfar.
ABERDEEN :-Shires of Aberdeen, Banff, Kincardine.
INVERNESS —Shires of Inverness, Ross, Cromarty,

Elgin, Nairn, Sutherland, Caithness.

South.

SOUTH. AYR:

-Shire of Ayr. DUMFRIES :

-Shire of Dumfries, Stewartry of Kirkcudbright, Shire of Wigton. JEDBURGH :Shires of Roxburgh, Berwick, Selkirk,

Peebles. 1 Act 9 Geo. IV. c. 29, $ 2.

3 Act 31 and 32 Vict. c. 95, 2 Act 20 Geo. II. c. 43, $ 32.—See $ 2. also 11 Geo. IV. and 1 Will. IV. c. 4 Act 31 and 32 Vict. c. 95, $ 2. 69, $ 19, by which the Lord Justice 6 Act 9 Geo. IV. c. 29, $ 3. General may preside on Circuit. 6 Act 27 Vict. c. 30, § 1.

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