52 THE HIGHLAND CLEARANCES. 



dispose of the cause. He also quoted from Hume and 

 Alison to show that the High Court had frequently suspended 

 sentences pronounced in a Summary Court when the crime 

 charged was too serious for such a mode of trial. He 

 maintained that before 1864 there never was a case of such 

 magnitude tried before a Summary Court, and if not before 

 1864 there was nothing in the Act of that date which would 

 entitle them to try it. 



The Sheriff said that this was an offence at common law 

 as well as under the statute. They were proceeding at 

 common law, and the pains and penalties which the 

 prosecutor asked should be inflicted, were the pains and 

 penalties applicable under the Summary Procedure Acts. 



Mr. Macdonald held that the punishment was statutory, 

 even though the offence was charged at common law. 



The Sheriff said the punishment was statutory if the 

 prosecution was under the statute ; but if the prosecution 

 was at common law, it was not necessary for the Court to 

 take the statutory penalty. 



Mr. Macdonald contended that when his lordship was 

 asked generally, as in this complaint, to inflict the pains of 

 law upon defenders, that carried them back to the statute 

 law. 



The Sheriff That carries you back to the statute under 

 which you are proceeding; and the statute under which you 

 are proceeding is the Summary Procedure Acts. 



Mr. Macdonald If that is your lordship's view, there is 

 no use in any further pressing my contention. 



The Sheriff said that was the view he was inclined to take. 

 He might mention that he had been aware that some objec- 

 tion of this sort might be taken, and he had given the point 

 careful consideration. Personally he should have preferred 

 that the case had been tried by jury, on the ground that it 



