Accordingly, on Monday February 3, the folicitor general moved for leave to bring in a bill, To prevent the payment, for a certain time, of effects or money, in the hands of fubjects of Great Britain, the property of French fubjects, to the orders, &c. of the perfons exercifing the powers of government in France, &c. and for reftoring the fame to the indiv dual owners. The chancellor of the exchequer, feconded the motion, which meeting the unanimous concurrence of the house, the bill was ordered to be brought in accordirgly.

The fame day, in a committee of fupply, the secretary at war moved for the grant of 60,244 land forces for the enluing year. This brought on fome fevere animadverfions on the conduct of the war on the continent, from major Maitland, who was anfwered in particular by Mr. Jenkinfon. But what thefe gentlemen faid on this fubject was but an anticipation, as it were, of a debate, in which it underwent a more full discussion on a fubfequent day.

On Tuesday, February 4, Mr. Adam rofe, and obferved, that in the course of the daft feffion of parliament he had thought it his duty to propofe to bring in a bill for the purpose of establishing the right of appeal from the court of justiciary in Scotland to the house of peers. The propofition he now wifhed to fubmit to their confideration, he brought forward, after having duly weighed its importance. Nothing, therefore, was more likely to elucidate the fubject than his tracing its progrefs in his own mind, and the various motives which had induced him to bring it before the house. It was his first butinels to advert to the period of the Union, and the changes which were by that event intioduced into the internal fituation of Scotland; but what more immediately induced him to confider the fubject, was, the application of the bill for preventing traiterous correfpondence to that; and he was more particularly called upon to examine it, from the circumftance of his having been engaged in an appeal from the court of jufti iary to the houfe of lords. In ufing the term appeal upon this occafion, it must appear obvious to the house, that he did not mean fuch an appeal as lies from the English courts of equity, and the civil courts in Scotland, to the house of peers, in which questions of fact, as well as of law, were difcuffed; but an appeal which should lie in cafe of error of law only. In the cafe of Robertson and Berry, who

were convicted of a misdemeanor in Scotland, it had been suggested by many noble lords, that though an appeal would not lie in cafes of capital offences, yet it might in cafes of misdemeanor merely. The queftion had been accordingly argued by the lord advocate and himself, before the lord chancellor, lord Kenyon, and lord Thurlow; and by their folemn adjudication against the right of appeal, the matter had been fet completely at reft; though the last noble lord had, at the fame time, expreffed his hope that fome legislative remedy might be applied to this defect. But though the cafes his duty compelled him to produce were not of fufficient authority to obtain a favourable decifion for his client, yet their general principles might now be brought forward as reafons in fupport of his motion. It would be found, on turning to the 18th article of the treaty of union, that though the civil rights, and the rules for the regulation of property, were preferved the fame as before, yet there was ample room left for the neceffary amendments in the criminal jurifprudence of Scotland. In conformity to this principle, the laws of treafon in the latter country were brought to the fame ftandard with thofe of England; and another inftance would be found in the abolition of the heritable jurifdictions in Scotland. thefe accounts it could be very easily perceived, that there was no impropriety in agitating the prefent queftion, from any confideration of the articles of the union. With respect to the mode of proceeding to

On

carry his projected amendments into effect, he would fay, that it was his leading object to affimilate the laws of the different parts of the united kingdoms; and as the principles of the criminal law were the fame in both, he wished that the system of redrefs might be brought to the fame ftandard. In the law of England, a diftinction was taken between cafes of mildemeanor and capital felonies. In the one cafe a writ of error was granted by the attorney general, ex debito juftitia, and as of courfe: and in ca es of capital felonies, fuch a writ was iffued on petition to the crown ex fpeciali gratia. It was not his defign to enter into any remarks on the propriety or impropriety of this diftinction; he fhould content himfelf with faying, that in the cafe of mildemeanors, or what in the Scotch law were called delicta, the lord advocate fhould iffue his warrant for the allowance of an appeal; and in cafes of capital offences, the crown might be empowered on petition to make such allowS 2

ance

ance allo; with refpect to the circumftance of removing the record or books of adjournal, as they were termed, it would be eafy to remove the indictment, the verdict, and the judgment, by a writ fimilar to the English writ of certiorari, or by a procefs inftituted for the purpofe under the great feal. Having thus difcuffed the mode of effecting his propofed amendment, it would be requifite, in the next place, to examine into the propriety of attempting to bring it about. Had this inconvenience been known or confidered at the time of the union, he was confident that the right of appeal would then have been granted, and his prefent application rendered totally unneceffary. That application, however, was founded on the moft immutable principle both of natural and municipal jurifprudence. That principle was, that no court before which a question was brought in the first instance, fhould have the ultimate power of determining upon it. To this principle the laws both of England and Scotland had paid the greatest respect; and it was never deviated from, except in fome particular cafes when the wifdom of parliament had interfered. Arguing from the analogy of the Scottish law, what reafon could be affigned why the decifion of the court of justiciary fhould be final, when appeals from the court of feffion in civil caufes were daily allowed, and the proceedings of inferior criminal courts were liable to be reverfed by writ of advocation? On the contrary, the fuperior powers with which the judges of the court of Jufticiary were invested, and the nature of the offences they were called upon to exercife, rendered it neceffary to watch over them more narrowly; though in fo faying he did not mean to infinuate, that the individuals at prefent on the bench would abufe their authority. Though the Scottish Jaw had rejected the trial by jury in civil cafes; yet, in conformity to the law of England, this mode of trial had been preferved upon criminal caufes. His bill would, in its ultimate tendency, lead to accuracy, both in the mode of examining witneffes, pronouncing fentence, and making up the record. By it likewife the lawyers of Scotland would be led to the ftudy of English crown lawyers, fuch as Hale, Hawkins, and Blackftone, As he had therefore no object of ufelefs innova tion, and as his bill was founded on the great and undeniable principle he had mentioned, and tended to introduce fo material an alteration in the criminal jurifdiction of the northern part of the united

kingdom, he would conclude by moving, that it fhould be referred to the grand standing committee of law.

Mr. Anftruther paid feveral compliments to the hon. gentleman, upon the fair and candid manner in which he had ftated this fubject; but felt himself bound to oppofe this motion, even upon the principles ftated by the learned gentleman himfelf. He did not mean to contend, that it was not competent to any member of that houfe to propofe a measure for an alteration in the law of either England or Scotland; but in making fuch a motion, that houfe would expect very convincing arguments to induce them to comply with it. Now, the hon. gentleman had not mentioned any one authority in the law of Scotland juftifying fuch a proposition. Since the establishment of the court of jufticiary, no one authority, no one dictum, could be produced, in which an appeal from the court of justiciary could be upported: therefore the obvious intention of the learned gentleman was, to introduce a total innovation in the law, and not to reftore it to its antient vigour. The queftion had been folemnly argued in the house of lords, and there determined, that no appeal lay. Under thefe circumstances, in order to induce the houfe to attend to his motion, the hon. gentleman should have proved that the people of Scotland were diffatisfied with the prefent mode of adminiftering criminal law in that country. The hon. gentleman could prove no such thing; on the contrary, he would venture to affert, that there were no people in his majefty's dominions who were more fatisfied with the adminiftrat on of their laws than the Scotch were, and who would be lefs obliged to the hon. gentleman for his motion. But the hon. gentleman had ftated, that a noble and learned peer in the other houfe (lord Thurlow) had intimated fome difapprobation upon the want of an appeal from the court of jufticiary; or, in other words, that in criminal cafes there was no appeal in Scotland. Whether the noble lord had declared fuch an opnion or not, he could not tell; but if he had, why had not the noble lord himself brought forward the fubject? There was no man who could have introduced it with more weight than that noble lord; becaufe he had, during the whole course of the period in which he was chancellor, notwithstanding the various and important fubjects he had to claim his attention, inveftigated the cafes which came before him from Scotland with a degree of minuteness

and

and accuracy, which equally proved the extent of the noble lord's talents, and tended to meliorate and improve the law of Scotland. The honourable gentleman feemed to wish to affimilate the law of Scotland with that of England. Would the learned gentleman contend that there was, in every criminal cafe in the law of England, a revifion of the proceedings? In capital cafes the subject in England had a writ of error, it was true; but it lay at the mercy of the crown to grant or refule; and it was not to be claimed as a matter of right, and ex debito juftitiæ; therefore gentlemen fhould recollect precifely what the law of England was, before they undertake to affimilate it to the law of Scotland. In cafes of misdemeanor in England, there was only an appeal to the attorney general; that is, that officer might, if he pleased, refufe to grant the appeal; therefore the advantages of an appellant jurifdiction were not fo clear in England as the learned gentleman had stared; but to obtain thefe advantages, fuch as they were, a fubject of Scotland was to give up privileges which he undoubtedly poffeffed; fuch as the right of having a copy of the indictment given to him before the trial, the names of all the witneffes who are to -appear against him delivered to him fifteen days before the trial; added to which, was that very important point, namely, the right of prifoners to be heard at length by their counfel. All these advantages, and important they undoubtedly were, would be loft, if the plan of the learned gentleman was fanctioned; because the ultimate object of it was to make the law of Scotland in criminal cafes fimilar to the law of England. He begged the learned gentle man to reflect for a moment upon the confufion which must be introduced into the court of justiciary if this bill was permitted to pafs, because the whole practice in that court must be changed. He should have been glad if the hon. gentleman had openly declared his intentions of making the law of Scotland in every respect the fame as the law of England; that would have brought the whole queftion into iffue. and it might have been fairly difcuffed. If it was abfolutely neceffary that there fhould be an appeal from Scotland in criminal cafes, the house of lords was not exactly the court for that purpose; because, though that court had the advantage of the highest advice in all matters which related to the law of England, yet it fhould he recolJested, that in cates from Scotland they had no fuch advantage; and therefore,

upon the whole, he could not help con fidering this as an innovation upon the law of Scotland, not called for by the people of that country, not juftified by the neceflity of the cafe, and not to be defended upon any authority or dictum to be found in any Scottish writer of eminence. The gentleman had talked of opening to them the treasures of Hawkins and Hale; but however refpectable thofe writers might be in England, in Scotland they could not be of much advantage; because the principles upon which they judged and wrote. were fo different from thofe adopted in Scotland, that it would be perfectly new to theth; and therefore, in whatever point of view he confidered this propofition, he felt himself bound to oppofe its even being referred to a committee.

Mr. ferjeant Adair faid, he was much furprised to hear the learned gentleman who spoke laft argue, that there was no authority in the law of Scotland for this motion, because this was not proposed as a bill declaratory of what the law of Scotland is, but to enact what the law of Scotland fhould be in future. Therefore all the learned gentleman's arguments about the want of authority and dicta must fall to the ground. But the argument which appeared the most afton thing to the learned ferjeant was, that no alteration fhould take place in the law of Scotland, unless the people of that country declared themfelves diffatisfied with the present fyftem of law. This was a popofition which he had never heard before; and if that rule had been always obferved, many essential advantages would have been loft to the British conftitution; becaufe moft of the improvements which had taken place in it were from the wifdom of par liament, and not from any defire expreffed by the people. But the learned gentleman had faid, that the people of Scotland were perfectly fatisfied with the prefent adminiftration of their laws: he begged the learned gentleman's pardon, if he did not abfolutely believe that affertion, because that gentleman could not speak from perfonal knowledge upon the fubject, having lived for the last years of his life in this country; and therefore could only speak of the sentiments of the people in Scotland by information; and he was much inclined to think, that if the legislature passed an act to make the law of England and Scotland the fame, that the Scotch would not feel much refen ment upon the occafion. The learned gentleman who opposed the motion had stated, that the writ of error