In consequence of this, lieutenant Ogilvie the Tolbooth in Edinburgh, and was executed was respited from time to time till the 13th of in the Grass-Market, amidst an innumerable November, 1765, when (his majesty's fourth concourse of people. The day before his exereprieve being expired) he was carried from cution he signed and delivered a paper, in order Scotland, for their opinion as to the comorder in Maclaurin's Criminal Cases, p. 417. petency of such review. And, on the part of There is also an entry relative to it in the books the lord advocate, (at that time Mr. Miller, af- of Adjournal, Aug. 16, 1768. The Lords of terwards successively lord justice-clerk, and Justiciary, in an interlocutor relative to this president of the court of session), a report was business, had inadvertently applied to this made in the negative, upon these, as they have order, the term 'judgment.' The lord adrogenerally been esteemed, and certainly to me cate, of the above date, represented to the appear, sound and sufficient grounds. 1. The Court, That he attended the Committee of the absolute silence of all our books and authori- House of Lords, whose order of the 7th of ties in law, with respect to any such right of March was made, of purpose to avoid the appeal. 2. That there is no vestige of any determination of the question as to the compesuch process, either in the records of the pre- tency of an appeal from this Court;' and that sent Court of Justiciary, which was established he was apprehensive, that afterwards, when in 1671, nor in those of parliament, which the res gesta was forgotten, this interlocutor begin with the reign of James 1. 3. The si- might be quoted as evidence of the receiving lence of the Claim of Right (1689, c. 13) on this of the appeal, and of a judgment given on it in head; though it asserts the privilege of pro- the House of Lords. He therefore prayed to testing for remead of law, against the judg-substitute the term 'order' for that of judg ments of the lords of session, the supreme ju'ment.' The Court declare, their having used dicature in civil or patrimonial affairs.* 4. the term 'judgment' in the above-mentioned That the Treaty of Union confirmed the Court interlocutor, proceeded from their not advertof Justiciary in its constitution and privileges as ing that there was any material difference they then stood;† and that there has been no betwixt the words order' and 'judgment,' instance [excepting a singular and irregular and they hereby declare, that they there incase about the church of Elgin] since that tended no more by the word judgment,' than time, of any such appeal being received by the by that of order;' and in respect of this House of Lords. The opinion of the attorney- declaration, they find no occasion to alter the general for England coincided with this report; former record.] A second appeal was entered and in consequence, upon expiration of the re- in this case, after the interlocutor dismissing spite, lieutenant Ogilvie was executed, agree- the libel; but this was remitted to a committee, ably to his sentence. who never reported on the matter.

"The next attempt of this sort, was in the trial of George Dempster for bribery at an election; where the prosecutor offered a petition of appeal against the interlocutor of Court, sustaining the pannel's privilege as a member of parliament, in delay of trial. This was remitted to a committee, to report whether it should be received, (March 7th, 1768;) but the issue was, that instead of determining the general question, the House saw cause to pronounce an order, authorising the Court to reconsider their judgment, and proceed notwithstanding the appeal. [See the words of this

6

*The article of the Claim of Right,' which Mr. Hume here mentions, is expressed thus. "That it is the right and privilege of the subjects, to protest for remeid of law to the king and parliament, against sentences pronounced by the lords of session, providing the same do not stop execution of these sentences."

† In the 19th article of the Treaty of Union it is declared, "That the Court of Justiciary do also, after the Union, and notwithstanding thereof, remain in all time coming, within Scotland, as it is now constituted by the laws of that kingdom, and with the same authority and privileges as before the Union; subject, nevertheless, to such regulations as shall be made by the parliament of Great Britain, and without prejudice of other rights of justiciary."

·

"Soon afterwards, this question was, however, carefully considered, as far at least as relates to interlocutory orders, in the important case of Mungo Campbell; where an appeal was taken against the interlocutors of Court sustaining their jurisdiction, and finding the libel relevant. Lord Mansfield, on this occasion, entered fully into the several reasons for refus ing such appeals, especially before the issue of the trial; and the petition was rejected accordingly.

66

Nevertheless, it was thought desirable to bring this controversy to a solemn and decisive judgment, as relative to the case also of an appeal taken after conviction and sentence. A petition was therefore offered for Alexander Murdison and John Miller, two persons convicted of sheep-stealing, and under sentence of death. And this having been remitted to a committee, the House of Lords determined on their report, March 10, 1773, That the said petition and appeal is not properly brought, and that the same be and is hereby rejected.

"That judgment, in itself decisive, has since been confirmed, with other two [see Maclaurin 581] to the same purpose: one in the case of Bywater, in spring 1781, who complained of a decision repelling an objection in arrest of judgment, and pronouncing sentence of death; the other in the case of Robertson and Berry, [May 8th, 1793, see it in this Col

vancement of justice, in Scotland every judge, of whatsoever degree, has power to punish summarily, and of his own motion, all such disorders or misdemeanours, committed in court during the progress of a trial, as are either a disturbance of the judge in the exercise of his functions, or a violation of that respect and deference which ought to be observed towards him, when proceeding in his office. The hindrance, therefore, or molestation of the macers or other officers of court in their duty: the use of any threatening or contumelious speech or gesture there with relation to the judge or the trial: any open expression of either censure or approbation of the proceedings of the judge or the jury, as by acclamation or otherwise; [see the case of a man fined for applauding upon the acquittal of Stone, A. D. 1796,] nay, the wilful and repeated breaking of silence in court: all these, are examples of this sort of blameable contempt, for which the magistrate may reprove the delinquent of his own knowledge, and upon the spot. All wilful disobedience or gross neglect of the orders and precepts of court, in matters relative to any trial, is, in like manner, necessary to be subdued without delay: otherwise, the course of justice would be liable to be stopped by the refusal of jurors to serve, or of witnesses to appear, or to answer, and the like.

of Nairn and Ogilvie, and after those pannels had been convicted, certain printers were rebuked, and, on account of their submission, were dismissed without farther censure, for their fault in publishing an Opinion of English counsel on the case, accompanied with notes highly injurious to the Court and the Jury. In a still later instance, February 23, 1793, [see the Case of Anderson and others in that year] when an account had been published of a certain trial, equally slanderous of the proceedings of the Court, and contemptuous of the persons of the judges, and where the offence was not followed with the like symptoms of contrition, the culprits, Johnston and Drummond, were sent to gaol for three months, and till they should find surety for their good behaviour in time to come." Hume's Comm. | vol. 1, p. 219.

As to writs of error in criminal cases in

England, see in this Collection the cases of sir Thomas Armstrong, vol. 10, p. 105, and see PP. 116, et seq.; of Ashby and White, vol. 14, p. 695, 861, et seq.; of Wilkes, A. D. 1764, 1770, and Mr. Hargrave's learned collection concerning writs of error in criminal cases, Juridical Arguments and Collections, vol. 1, p. 408. lawyer notices that though he had not there of In the preface to which volume that eminent fered his own opinion "he has often thought upon the subject; and it is not improbable, that he may hereafter commit to writing his claim of the subject in England to call the apsentiments, not only upon the nature of the pellant jurisdiction over crimes into action; but also on the controversy, which has more than once been agitated, on the existence of such a Jurisdiction over the supreme criminal court in the matter will receive a full discussion in bis Scotland." It is therefore to be hoped that

most valuable 'Jurisconsult Exercitations' now

"It is equally indispensable to repress in the same speedy and effectual manner, all attempts which may be made with relation to any trial depending at the time, or which has recently been so, to slander the proceedings of court, or to depreciate the character, or sully the honour, of the judges; or to impose on their wisdom, and pollute the channels of justice, to the prejudice of a fair and unbiassed trial, between the parties. In formertimes they scrupled not summarily to inflict high corporal pains, for transgressions of the first of these kinds. As in course of publication. See some important regard to Donald Campbell, February 24th, matter concerning the right to a writ of error 1673, who, in the course of a trial, when in criminal cases in England, in the New standing among the multitude by the court-Parliamentary History, vol. 5, p. 445. house, had openly accused the earl of Athol, justice-general, of gross partiality and corruption with relation to that case: he had sentence on this account, to stand two hours upon the cuck-stool, and there make public confession of his fault, and to have his tongue bored by the commou executioner." [As to the validity of precedents of mere acts of power, see vol. 8, p. 79.] "More lately, with relation to the trial

Note; By the Commons' Journal of Sabbati, 4° die Maii 1 Will. et Mar. it appears, that leave was given to bring in a Bill “ for regulating construction upon the statutes for reason; and trials, and proceedings, and writs of error, in cases of treason." And it was recommended to Mr. Sacheverell to take care of the Bill.

547. The Trial of FLORENCE HENSEY, M. D. for High Treason'; holden at the Bar of the Court of King's-Bench, in Westminster-hall: Before the Right Hon. William Earl of Mansfield, Lord Chief Justice, Sir William Dennison, Sir Michael Foster, and Sir John Eardley Wilmot, knts. Justices of the said Court, on Monday the 12th day of June: 32 GEORGE II. A. D. 1758. [Burrow's Reports, temp. Lord Mansfield, vol. 1, p. 642.]

REX versus FLORENCE HENSEY, M. D. ON Monday 8th of May 1758, the defendant was brought into court by the keeper of Newgate, upon a Habeas Corpus directed to bim, commanding him " to bring up his body.' He appeared (upon the reading of the return) to have been committed by warrant under the band and seal of the earl of Holderness, one of his majesty's principal secretaries of state, for high-treason in adhering to and aiding and corresponding with the king's enemies, and to be detained in his custody, by virtue of a second warrant of the like kind.

Mr. Attorney General prayed that the return might be filed.

Court. Let it be filed.

Mr. Attorney General then informed the Court and the defendant, "That there was an indictment of high-treason found against the defendant:" (Which indictment was so found by the grand jury, by itself singly, and brought into court, singly, by them on Tuesday last.) With which indictment the defendant being now charged, and being called upon by the Secondary of the Crown office to hold up his hand, the Court ordered the indictment to be read to him.

But the Court, (before it was read to him,) asked him, "Whether he desired counsel to

received hard and severe usage, during his confinement."

Mr. Attorney General absolutely disavowed his having received any severe treatment at all; and assured him that he would be treated with all possible humanity, so far as was consistent with his being safely secured from escaping.

Then a day was fixed for his trial; viz. Monday, 12th June 1758.

Which being settled, without any sort of objection on any part, the defendant was renanded to Newgate.

On which Monday 12th June 1758, at the trial, the defendant's counsel took exception to the reading of two papers (N° 1, 2)-being the rough draughts of letters written by himself, and found in a bureau where he kept his linen and papers; and which were only introductory evidence; not any part of the overtacts, which were to support the species of the treason charged upon him. It was objected to them, that they were not sufficiently proved to be found in his custody; nor sufficiently proved to be his hand-writing for mere comparison of bands is not sufficient to support their being read against the defendant.

The Counsel for the Crown answered, That be assigned to him ;" and if he did desire to the papers being found in his custody, and his have counsel, then, "Whom, by name, he de-hand having been sufficiently proved by persons sired to have assigned to him.” who had seen him write, it was sufficient to inHe named, and accordingly the Court assigned to him, Mr. John Morton, and the ho-title the crown to read them; though the jury nourable Mr. Thomas Howard; and Mr. John Pierce for his attorney.

are to judge of them. And they mentioned Layer's case [vol. 16, p. 93]; and lord Preston's case [vol. 12, p. 645]; and Francia's case [vol. The indictment was then read verbatim to 16, p. 897]; and Sidney's case [vol. 9, p. him, by the express direction of the Court: 8171; and Buchannan's case in the north, in (although he had a copy of it five days ago; 1746; and Crosby's case, Skinner 578, 579, agreeable to 7 W. 3, c. 3, "for regulating of and 1 Ld. Raym. 39, S. C. Rex. Crosby trials in cases of treason and misprision of trea-alias Philips: where comparison of hands was son.") Upon which indictment being thus read to him by Mr. Barlow, he was immediately asked (by Mr. Athorpe, secondary of the Crown-office,)" Whether he was guilty or not guilty of the high-treason therein charged upon him." To which he pleaded Not Guilty. (i. e. Rex v. Thornhill.)

allowed to be good evidence, if the papers are found in the custody of the person himself. Sir John Wedderburn's case [vol. 18, p. 425.] Sir Cholmeley Dering's case-for murder;

The defendant, after he had pleaded "Not The Court unanimously over-ruled the obGuilty," intimated to the Court, "That he hadjection. These papers were found in his cus