TRIAL OF THE BRAES CROFTERS. 51 



been done by the prisoners in concert with a crowd of 150 

 people ; so that the deforcement ran into the other serious 

 charge of mobbing and rioting, the most serious kind of 

 deforcement known to the law. This was the first time, he 

 believed, in the legal history of Scotland that a charge of 

 such a serious nature had been tried in a Summary Court. 

 The accused had been brought to that Court ; they objected 

 to being brought there. The public prosecutor had no right 

 to dictate what was the competent Court for the trial of a 

 case ; it was for his lordship to say whether the Court was 

 competent or incompetent. The public prosecutor had 

 refused to go to a higher Court; he had refused to give 

 these men the benefit of trial by jury ; and it was now for his 

 lordship to say whether these men were to have that bene- 

 fit. It had been said that the reason for bringing the trial 

 in the Summary Court was the fact that the maximum 

 sentence was so small, but his lordship had the same power 

 in the Jury Court as he had in the Summary Court. 



The Sheriff said there was no question whatever in 

 regard to the power of a judge sitting in the Jury Court to 

 inflict the minimum punishment in a case of deforcement ; 

 and he instanced a case of that kind, tried by Lord Young 

 at the Inverness Circuit Court, in which the sentence was a 

 fine of 403., with the alternative of one month's imprison- 

 ment. 



Mr. Macdonald quoted the acts of the Scottish Parlia- 

 ment of 1581 (C. 118), 1587, (C. 85), and 1591 (C. 152), 

 which regulated the punishment which by statute followed 

 on conviction, to show the serious nature of the charge 

 against the prisoners, and argued that as the libel concluded 

 generally for " the pains of law " and these pains were 

 statutory and such as were beyond the power of a Court of 

 summary jurisdiction to inflict, the Court was incompetent to 



