1

ry courts of judicature, it was an established point, That, after evidence given, the jury could not be adjourned, but muft proceed in the inquiry, and be kept together till they are agreed in their verdict; but that he had some hesitancy whether that could be applied to this cafe, where the triers were peers, who, had the trial been in parliament, might adjourn; and he propofed to confult with my Lords the Judges; which was accordingly done. My Lord Chief Justice Herbert, after confulting with the judges, returned their anfwer; and, among other things, faid, “My Lord, In the first place,

where the trial is by a jury, there the law is clear; the jury once "charged, can never be discharged till they have given their verdict. "This is clear; and the reafon of that is, for fear of corruption, and tampering with the jury: an officer is fworn to keep the jury together, without permitting them to separate, or any one to con"verfe with them; for no man knows what may happen: for tho' "the law requires honeft men should be returned upon juries, (and "without a known objection they are prefumed to be probi et legales homines), yet they are weak men, and perhaps may be wrought upon by undue applications."

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This, my Lord, it is faid, fails in this cafe; because the Lord's "that are to try a Peer, are perfons of that great integrity and honour, that there is not the least presumption of their being to be prevailed upon in any fuch way; and for that reason, because of "the confidence which the law reposes (and justly) in perfons of their quality, they are not fworn, as common ordinary jurors are, but are charged, and deliver their verdict upon honour." And he goes on to fay, "That had the trial been in parliament, the Lords might have adjourned," &c. "But whether being judges in that "cafe, and in this cafe only in the nature of a jury, makes the "difference, &c. we cannot prefume to make any determination, "&c. but fubmit the jurifdiction of your own court to your own “determination." And the Lord High Steward thereupon, after delivering his opinion, refufed to adjourn.

The

The cafe is fo much in point, that it is unneceffary to argue upon it. Nor can it make any diftinction in the prefent queftion that it was a capital one. In public crimes, whether capital or not, our law makes no diftinction as to the forms of trial, except in one particular, introduced by a special statute, against taking down the evidence in writing. This form, though depending merely on cuftom, required the force of a ftatute to alter it. The not adjourning juries in England after evidence is taken, fo far as the counfel for the pannel are informed, depends upon custom merely, and reafon. They have no direct act of parliament, as we have; and yet we have found no instance from any of the law-books of England, where ever a jury was adjourned on any account whatever.

We cannot agree with the gentlemen on the other fide, that it is improper in this cafe to argue from the analogy of the law of England. In points of this kind, fuch an analogy will have the utmost weight with your Lordships. These two united kingdoms do ftill enjoy the happiness loft by other nations in Europe, to have their li berties fecured by this noble institution of trial by jury. The prefent question goes to the very effence of that inftitution; and in that light it is fair and proper to argue from the custom in the one kingdom to that in the other. They ought to be fimilar in that, without which jury-trial would be only a name.

It was faid on the other fide, That we lived in happy times of liberty, when there was no hazard that the public profecutor either would defire to opprefs, or courts of law abufe, difcretionary powers. This is indeed a great truth; we certainly do live in fuch times : but that very circumstance throws us off our guard; we are apt to be too little jealous of exertions of power, when we fee none ufed but thofe which are for our good. All history confirms this obfervation; and as an inftance of it, it may be remarked, that in the reign of the great Queen Elifabeth, there were many exertions of power admitted of, which became precedents for thofe arbitrary measures purfued by fome of her fucceffors, to their and the nation's fad experience.

Your

Your Lordships, therefore, will confider well this cafe, and the confequences of it. The accident that happened was a very fingular one, admitted never to have happened before in the course of several hundred years, and unlikely ever to happen again. Statute will provide for great and frequent inconveniencies. It would lefs wound the law, in cafe of fuch an accident, to take a verdict from the remaining part of the jury. Your Lordships would hardly take that step, though the number of fifteen depends on cuftom merely. But if a jury may be adjourned, the maxim, That our diets are peremptory in criminal courts, has no meaning. Such being the cafe, your Lordships will be loath to establish any precedent which may deeply wound the law, and render a statute, which has always been confidered to be the Magna Charta of this country, entirely useless, and of no effect. And, to conclude almost with the words of a learned judge, (Fofter's Reports of crown-law), your Lordships will confider, that the policy of the law of Scotland, and indeed the true principles of all government, will rather suffer many private inconveniencies, than introduce one public mischief. You will confider the trial by jury under its established forms, as part of the jus publicum, as a sacred depofitum committed to the judges, which they ought to deliver down inviolate to posterity."

The interlocutor was in these words, July 11. 1763. "Find, That "after the jury was fworn, and charged with the pannel, the trial ought not to have been adjourned; but that, from the neceffity of "the cafe, the jury ought to have been discharged, and the pannel fubjected to a new trial: and therefore, as in this cafe the trial was adjourned, and the jury separated, after they had been fworn, "and charged with the pannel, and that the jury did thereafter re"turn a verdict, find the proceedings null and void; and for that "reafon affoilzie the pannel fimpliciter, and difmifs her from the "bar."

A&t. Montgomery, et alii.

Alt. Swinton, et alii.

N° 73.

I i

N° 73.

February 1765.

The BRITISH LINEN-COMPANY, and his Majefty's Advocate,

AGAINST

JAMES BAILLIE, late Schoolmaster in Dundee.

Forgery not triable before the Justiciary in the first inftance, when the indirect manner of improbation is to be used. - How an indictment differs from criminal letters.

TH

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'HE indictment was laid upon the laws of this and all other well-governed realms; and it charged him with counterfeiting, &c. the notes of the British Linen-Company; and alledged, That by comparing the notes he had fabricated, with the authentic notes of the company, "and from other evidence, it will appear, that all and each, or one or more, of the faid notes, fo fpecially above defcribed, and found in your poffeffion as aforefaid, are falfe and forged; and that you the faid James Baillie are, and must be pre'fumed, the forger thereof; and that one or more of them has, of have, been uttered, changed, or ufed by you, knowing them to "be forged."

His counsel objected, in the fift place, That though forgery may be cognisable by the Jufticiary in the first instance, when the direct manner of improbation is to be ufed; yet it is not when the indirect manner is to be used, as in the prefent cafe. The Seffion, in fuch cafe, has a privative jurisdiction; and the perfon accufed must be remitted to the Jufticiary, after the deed challenged has been improved by the Civil court. This procedure is neceffary; becaufe, firft, the peremptory diets of the Jufticiary are incompatible with the cedure in the indirect manner of improbation, in which nunquam concluditur. Befides, this manner would require fuch a long federunt, as would deftroy both court, jury, profecutors, and pannels. 2dly, Great abfurdities would follow, if trials, in fuch cafes, were to pro

pro

ceed

ceed before the Jufticiary in the first inftance: for, notwithstanding the verdict of a jury, finding the deed challenged improbative; yet it would remain ftill a good deed ad civilem effectum, till improved by the feffion and it might happen, that upon an action of improbation being brought for that purpose, new evidence might be found out by the perfon accufed, which the fhort inducia allowed him before the Jufticiary had prevented him from laying before that court; and thus a contrariety of judgements might be occafioned: therefore it has been justly held hitherto, that the Seffion has the fole power of judging as to the corpus delicti in every fuch cafe; and the doctrine of the Roman law is the fame; l. 23. E. ad leg. Cor. De falfis.

Anfwered, It would be very strange, if the fupreme criminal court had not a power of trying one of the most atrocious crimes. A jury can, with the greatest propriety, try the fact as to the forgery, or ufing the writing forged. The notes, in this cafe, are the corpora delicti; but many cafes might be figured, in which a trial for forgery might proceed, although the writing forged had been destroyed. What Mackenzie fays upon this head is wholly inaccurate. He supposes, that there is a statute which gives the Seflion a jurisdiction as to forgery. But that is a mistake, though there is a statute giving that court jurisdiction as to falfe witnefling. And he is mistaken even as to the cafe of Lord Blantyre, which he quotes for there was no remit in that case to the Seffion; and forgery in it was only charged as an aggravation of theft. Facts and circumstances may, with equal propriety, be judged by a jury as by the court of Seffion. But at the fame time, the truth is, that the charge in the indictment is direct. The profecutors have no reason to apprehend, that the trial in this case will be uncommonly long. In many cafes, trials for forgery have proceeded both before this court and the circuit, in the first instance, for forgery; Cafe of Macculloch, July 7. 1664; cafe of Nicolfon, January 22. 1694; Houifon, November 19. 1705; Gordon, November 1706; Adam, December 1709; Dunbar, November 15. 1714; Ramfay, July 9. 1716; Copland and Wilkie be