with a jury, and by Sheriffs summarily. We will now proceed to consider, first, the competency of Sheriffs trying summarily under Sir William Rae's Act cases which undoubtedly disclose crimes that prior to that Act would have required to be remitted to the knowledge of an assize; and, secondly, cases which ex facie of the complaint warrant a more serious punishment than sixty days' imprisonment, but yet are not necessarily so serious as to have required the intervention of a jury prior to said Act.

Sir Archibald Alison (Practice, pp. 53-56) does not seem to entertain any suspicion that the ordinary rule of practice was affected by the enactment contained in the 19th section of the 9th Geo. IV. cap 29. In the case, however, of Williamson (April 6, 1842, Broun, p. 216), an objection was taken to the production of an extract conviction of theft, aggravated by habit and repute, that it had been obtained summarily before the Sheriff-substitute at Dumfries, and that it accordingly could not be regarded, it being incompetent for the Sheriff to deal with so serious a case without the intervention of a jury. To this it was replied for the prosecution, that if the sentence was bad it could only be set aside by suspension, and that such a conviction was sanctioned by the 19th section of Sir William Rae's Act, which authorized a summary procedure before the Sheriff in cases where the prosecutor concluded for a small fine or short imprisonment. We should have been inclined to have held that the only method. of getting rid of such a conviction if it was bad was by suspension, but the presiding Judge (Lord Mackenzie) remarked that he did not think that the failure to suspend was a sufficient answer to the objection taken for the panel. He then proceeded to say, "The Statute, however, seems to set the matter at rest. I believe that it was framed with the view of removing any doubts which previously existed as to the extent of the Sheriff's summary jurisdiction. The prosecutor may now, if he is content with restricted pains, try any case before the Sheriff summarily which he can try before the Sheriff at all." This dictum remained in the books unchallenged apparently and uncontroverted, until the case of Hood V. Young (June 10, 1853, 1 Irvine 236), when Lord Ardmillan (then at the bar) referred to this case; and after stating that such was the law as laid down by Lord Mackenzie, argued that "that decision was only by a single Judge on circuit, and its soundness may fairly be questioned. We are entitled to found on the broader ground that the nature of the offence, and not the punishment craved, is to determine this or that mode of trial. It cannot be maintained that the prosecutor, by merely limiting the amount of punishment for which he prays, can at his own pleasure dispense with the constitutional safeguard of trial by jury. Here the charge was one of a most serious character, destructive of the panel's reputation, and a trial by jury ought to have been granted." With regard to this objection, the Lord Justice-Clerk (Hope) re

marked, that the crime of falsehood, fraud, and wilful imposition (a conviction of which was attempted to be suspended in this case) was one which might be a very serious crime, and was so in many cases. He then proceeded to say, "But when we look to the facts the case just comes to this, that these two men entered into a scheme for cheating in the sale of two horses. That is hardly a crime of such an extraordinary nature that the Sheriff was bound to try it with a jury. As to its effect on the panel's character, every case of theft implies a certain amount of infamy, and yet thefts are every day tried without a jury." And Lord Wood said, "The question is just whether this was such a serious charge that it ought to have been tried with a jury. For my part I think the Sheriff was quite right." Lords Cowan and Anderson were also on the bench on this occasion, but are not reported as having delivered any opinion on this point, but they may reasonably be held to have concurred. It appears pretty clearly, from the way in which the Judges expressed themselves in this case, that they did not recognise the doctrine laid down by Lord Mackenzie. In the case of Bute and Spouse v. More, already alluded to, the Justice-General expressly lays down that the 17th, 18th, and 19th sections of Sir William Rae's Act are intended to apply to three classes of crimes or offences which could competently be tried by the Sheriff: 1st, those which were of so serious a nature as required the intervention of a jury, to which the 17th section had reference; 2nd, a middle class of offences too serious to be tried summarily, and yet not serious enough to require the intervention of a jury, to which the 18th section was applicable; and 3rd, petty crimes or offences, or in other words what may be designated police offences, to the procedure in the disposal of which the 19th section was intended to apply. He read the three sections as applicable to the three distinct classes of offences; and certainly there cannot be gathered from his opinion any idea that the 19th section conferred upon prosecutors the right of bringing before Sheriffs such cases as they chose should be tried summarily, without reference to the nature of the offence charged. The Lord Justice-Clerk (Moncrieff) in this case, after remarking that he concurred in the result of the opinions of the JusticeGeneral, said, with reference to the three sections of Sir William Rae's Act above referred to, "The three sections 17, 18, 19 of the 9th Geo. IV. c. 29, were not intended to classify jurisdiction or to confine it, but to regulate mainly the taking and recording evidence. Both the 18th and the 19th relate to summary process in the larger meaning of the phrase; but the term summary procedure in relation to this Act has been used in recent legislation to denote the more summary form introduced by the 19th section of that Statute." His opinion, however, that these sections did not confine or classify jurisdiction seems to us not wholly reconcileable with this subsequent observation of his " I think it right, however, to say that I entertain no doubt that the alternative punishment concluded for under this

complaint might have been restricted to sixty days' imprisonment, and therefore, if so restricted, might have been tried under the 9th Geo. IV. c. 29. If the prosecutor may conclude for imprisonment only, he may restrict the term to sixty days, for that is the case provided for by the 19th section of that Act as regards all common law offences." In Lord Deas's opinion in this same case, he remarked-" But if the case we are now dealing with could be tried under the Summary Procedure Act, with or without restriction of the punishment, it seems to me to follow that offences under all or any of the statutes I have cited might, so far as procedure is concerned, be brought to trial in the same way. That, I think, would be a startling result. The consequences of conviction-as, for instance, a conviction of blasphemy-might, in many cases, be ruinous, however the punishment had been restricted; and if, besides there being no record of the evidence, a common informer may prosecute (a point unnecessary to be here decided, and on which I give no opinion), this would only make the matter still more serious." Lord Deas in these remarks is referring to certain old statutory offences, but his remark that conviction in certain cases, however punishment was restricted, would be ruinous to panels, is equally applicable with reference to certain common law offences, which it is by no means an infrequent thing in practice to bring before Sheriffs summarily. It may be thought by persons not conversant with the practice observed in criminal cases, that no cases of serious crimes would ever be directed to be tried summarily; such, however, is not invariably the case, for the writer is aware that cases of perjury, subornation of perjury, lewd, indecent, and libidinous practices, aggravated assaults, and other cases, which, prior to Sir William Rae's Act, there can be little question, could not have been tried without the intervention of a jury, have been directed to be tried summarily. In most cases where such direction is made it undoubtedly proceeds from considerations of public policy, for the more publicity is given to certain crimes the more likelihood there is of moral contagion and a sort of epidemic of such crimes. It seems to us that there is no sufficient authority for the competency of trying such cases summarily; on the contrary, that the weight of authority and principle is against it.

With regard to the power of the prosecutor to bring before the Sheriff summarily criminal offences, which are not serious enough to require the intervention of a jury, but which do not properly come under the designation of petty or police offences, it is to be remarked that no suspension has ever been attempted with reference to any case of the kind, on an allegation that, though the case might not be serious enough for a jury, it was too serious to be heard summarily. All the cases prior to Sir William Rae's Act, in which suspensions were brought on the allegation that the case was too serious to be tried in the manner adopted by the Sheriff, were based upon the ground that the trial was without a jury. We are rather inclined to believe that the Court would not interfere

with the summary tribunal selected by the procurator - fiscal in cases where the Court was of opinion that they were not serious enough for the intervention of a jury. At the same time, the clear exposition by the Lord Justice-General of the scope of the 17th, 18th, and 19th sections of the 9th Geo. IV. cap. 29, recognises the distinction between the middle class of offences and petty or police offences, while he pointed out at the same time that the 18th section was applicable to the former, and the 19th to the latter. It might, therefore, be argued that, as Sir William Rae's Act did not in any way affect this question, and as the criterion of what class of offences a panel stood accused of was the nature of the crime charged, and not the punishment concluded for, by trying him summarily, a panel accused of one of the middle class of offences was deprived of the inducia and formalities which he was entitled to require under the 3rd section of the Act of Adjournal-a disadvantage to which he had a valid ground of objection.

Reviews.

S.

Lyrics, Legal and Miscellaneous. By the late GEORGE OUTRAM, Esq., Advocate. Edinburgh: William Blackwood and Sons. 1874.

In England, we believe, every circuit has its poet-laureate. We have no such formal office in Scotland. But it is not, or was not, from want of material. The Bar is rich in lyrics and vers de société. Naturally enough these do not find their way to the general public. They deal with matters which have no interest except within a limited circle, or with persons to whom allusions are intelligible only to an audience more limited still. There are many productions of this kind floating about-receiving improvements from the hands of critics, glosses and various readings from copyists and reciters, until sometimes the text becomes so hopelessly corrupt that it would defy a forty-Porson power of emendation. Many years ago a foundling hospital was established for this sort of wit, entitled the "Court of Session Garland." Not long ago a second edition of the "Garland" was announced, into which it was hoped would be collected all these waifs and strays-all this flotsam and jetsam-of satire and humour. Few new pieces, however, were inserted; but instead we were regaled with some heavy political articles, which were exhumed from a heavy provincial newspaper. What these had to do with the Court of Session, or what place they had in a garland of any kind, except the garland or bouquet which used to be presented to people in the pillory, nobody has been able to understand.

Conspicuous among the verses, whose inspiring Muse haunts the Parliament House, were those of George Outram. The verses contained in this little volume were at least most of them-privately printed a good many years ago. It was at one time a question

among his surviving friends whether they should be issued to the general public. They have, and we are glad of it. If a man has made his mark among his fellows, it is well that the work by which he has made his mark should be preserved. Carlyle has said, What has Dr. Johnson done?-he did a Dictionary. What Outram did was these verses. As a lawyer he made no mark. As an editor he was suitable to what aspired to be a great advertising medium. But as a writer of verses he displays a genuine fund of humourhumour too of the Scottish type, not verbal, not rollicking, but pawky and sly and irresistible. In the honey of his wit there is a smack of the heather. He lived at an opportune time. He was happy if not opportunitate mortis at least opportunitate vitæ. His was a time which was less work-a-day, and more abounding in leisure and pleasure than this time of ours-a time of jovial bar dinners, cheery suppers, and "gude ganging pleas," a time, in fact, when life had every element favourable to the secretion of humour. The best of these verses are the "Soumin and Roumin," and "The Annuity." These have been sung or recited at so many social gatherings that it is unnecessary to quote them. Perhaps the next best is one piece which is less known

"THE PROCESS OF WAKENING.

"Jenny puir Jenny! the flow'r o' the lea-
The blythesome, the winsome, the gentle an' free-
The joy and the pride

O' the kintra side

She dee'd of a process o' Wakening.

"Though her skin was sae smooth, an' her fingers sae sma',
She won through the hoopin'-cough, measles an' a'-

She never took ill

Frae fever or chill—

Yet she dee'd of a process o' Wakening.

"The case fell asleep when her Grandfather dee'd,
And few folk remembered it e'er had been plea'd.
She never heard tell

O' the matter hersel',

Till they sent her the summons o' Wakening.
"Jenny! puir Jenny !-though courted by a',
Only ane touched her heart-an' he bore it awa.
It had just been arranged

That her state should be changed,

When they sent her the summons o' Wakening.

"She had plighted her troth-they had fixed on the day-
A' arrangements completed-nae chance o' delay ;.
She was thinkin' on this,

And entranced wi' bliss,

When they sent her the summons o' Wakening.

"Her friends were sae kindly-her true love sae prized,-
Surrounded by them, an' by him idolized ;

She had just passed the night

In a dream o' delight,

When they sent her the summons o' Wakening.