THE

SCOTTISH LAW MAGAZINE

AND

SHERIFF COURT REPORTER.

THE M'LACHLAN CASE.

THE trial of Mrs M'Lachlan for the Sandyford Place | universally called for at the hands of the Home Secmurder has now fairly attained the rank of une cause retary, as representing the Crown, can be interesting celebre. Seldom has so much interest and excitement to the lawyer only as a citizen, and with that we do been created regarding a criminal trial; for not in not mean here to meddle. Glasgow alone, the locus of the atrocious crime, but all over the country-in Inverness as well as in London, in Edinburgh as well as in Liverpool and Manchester-that interest exists in almost as great a degree as in Glasgow. So great a crime, surrounded by so many circumstances as yet not wholly explained, and which, it is to be feared, will never be clearly brought to light, could not fail to excite public feeling. And then the panel was a woman-the jury proceeded wholly on circumstantial evidence, which, unless peculiarly close and coherent in its every link, is, to many minds, professional and unprofessional, an unsatisfactory species of evidence on which to peril the life of a human being-the special defence pleaded by the prisoner, charging, not with complicity alone, but with unparticipated guilt, an aged man, and that skilfully and elaborately reiterated by what has been called the prisoner's "Statement," read by her counsel after the verdict of the jury had been given but before sentence was pronounced — the strong language which in many quarters has been thought justifiable regarding the tone and bearing of the Judge at the trial-and, not improbably, the juncture at which the trial has taken place, the end of the Session of Parliament, when there is an absence of attractive topics for discassion in the political world-all combined, explain the public and vehement sympathy to which expression has everywhere been given, and by all classes of the community, many of whom are not usually demonstrative in their feelings and opinions. As lawyers, we have only to do with two stages of this now famous trial-(1) The preliminary investigation or precognition; and (2) The trial itself, terminating with the verdict and conviction. The third stage of the case, the investigation now so

(1) The preliminary investigation or precognition. Premising that we are utterly opposed to the mode adopted in Scotland of investigating crimes secretly, before special officers, who may or may not, according to their peculiar characters, conceive it to be their duty to make out a case against the unfortunate wretch brought before them charged with a heinous crimeand this the more especially that the person so charged is alone-helpless-terrified with the very sight of the officers of justice-rigorously excluded from all friendly help and countenance, all legal counsel and advice-interrogated again and again by men skilled and experienced in legal inquiries, and who too often assume those to be guilty whe are only charged with guilt, and start in their inquiries with this mental bias, it may be even unknown to themselves-what hope is there for the nervous, the timid, the ignorant, it may be the innocent-caught in the toils and subjected to such an investigation? Obviously very little--the chances are all in favour of conviction.

Whatever may be the result of this trial and conviction, we have good hopes that this it will have done-Public attention has been called to this remarkable case, and Parliament may be brought to consider the necessity of some great and immediate change in criminal investigations in Scotland, and that that change may be some approach to the open and fair system of Coroner's Inquests so justly appreciated in England and America.

In this special case one or two remarks occur as to the mode in which the inquiry was conducted(1) The theory is that the inquiry is conducted by the Sheriff-the practice is that that duty is performed by the Procurator Fiscal and the police, the Sheriff being always kept aware of the progress of the

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another piece of board, so as to resemble, in arrangement as nearly as possible, the stained flooring brought from Sandyford Place; and this it was proposed to use in evidence against the prisoner! But, fortunately, there were wiser heads than this overzealous and ignorant person, who were, most pro

unheard-of proposal, and at the bare idea of such a production. That the marked board was not produced at the trial was well-that it should ever have been even conceived and carried into effect, exhibits an amount of legal ignorance and blunted feeling perfectly inconceivable. Had we an open investigation by a jury and the presence of the public, public opinion would have restrained official zeal to its just limits—the prisoner might have been advised-all available evidence would have been collected-the public mind would have been relieved of its many false and foolish theories, opinions, and conjectures-the investigation would have been more complete-and the farther inquiry demanded would, in all probability, have been unnecessary.

We shall postpone what we have to say on the second topic - The trial itself, terminating in the verdict and conviction-to another opportunity.

LEGISLATION OF THE PAST SESSION.

inquiry, and advised with on points of difficulty; and all committals or liberations are of course made by him after examination of the precognitions. This is the common course, and we beg to say it is the most becoming and decorous for the Judge. In this case we could have wished that the learned Sheriff-Substitute who more especially attended to it, had fol-perly, not only disgusted but alarmed at the cruel and lowed the common practice. He, however, conceived it to be his duty to act otherwise. We are quite aware that there may be exceptional cases, in which the theory of the law ought to be acted on; and one notable exception is well known in Glasgow, where Sir Archibald Alison, Bart., the learned Sheriff-Depute, in a crisis which threatened the peace and safety of the city, and the lives and property of the inhabitants, led, in person, a posse of constables into one of the worst dens of the city, and brought to justice the ringleaders of the disorder that was fitting and appropriate at such a time, and was met, as it deserved, with the just approval of all reflecting men. But was the Sandyford murder such an exceptional case? We take leave to doubt it. (2) The number and length of the judicial examinations were unusual. We are aware that there are no fixed limits to either the number or the length of examinations of parties; but it is not unknown also, that to examine them day after day, for hours together, more especially when the person under examination was a weak, ignorant, unassisted woman, is what we believe has seldom been done. Eight days is the usual period allowed in practice to detain the prisoner, and seldom, if ever, is he examined above twice, and then committed either for trial, if the crime is not bailable, or, if bailable, until liberated in due course of law. (3) Why, and on what grounds, was old Fleming liberated? It may be answered, because there was no evidence against him; and for the validity of this answer Crown Counsel must share the responsibility, because it was after consultation with him or them that the liberation took place. Its validity or invalidity will form part of the further inquiry now demanded, and we therefore say nothing more of it. (4) At the trial there was produced, in evidence against the panel, a piece of flooring cut from one of the rooms of the house at 17 Sandyford Place, on which were the impressions of three naked foot-prints stained with blood. These were said to have been the foot-prints of the prisoner, or negatively were said not to have been those of the murdered woman, or of old Fleming. We understand that some person or other, without the authority of the Sheriff or the Fiscal, but in a most unwarrantable and reprehensible excess of zeal, had the unspeakable cruelty of persuading the unhappy prisoner to put her naked foot into a basin of blood, and mark her foot, so dyed, three times on

THE volume of the Statutes passed during last Session of Parliament, 25th and 26th Victoria, has now been issued. Of Public General Acts there were passed 114; of Local and Personal Acts, declared public, 227; of Private Acts, printed, 6; and of Private Acts, not printed, 2-in all 349. It will thus be seen that last Session, though not remarkable for measures of great legal, political, or party importance, and on the whole considered uninteresting and "slow," managed to get through a considerable amount of work; and we mean, in this and probably another paper, to convey some idea of the nature and value of that work, in so far as it may have affected the law of Scotland.

Chapter 35 is "An Act to amend the Acts for the Regulation of Public Houses in Scotland." This Act alters, in many particulars, the former law; but as a sumptuary law dealing with malum prohibitum, not malum in se, it possesses little interest to the pro fession, and those whose duty it may be to assist in its administration will refer to the statute itself.

As is well known, the Queen and Prince of Wales have acquired, from their private funds, certain heri table estates in Scotland, some parts of which are held directly from the Crown, and others under subjec superiors. By an English Act, 39 and 40 Geo. III. c. 88, it appears that estates acquired by succession

Crown.

gift, or purchase, by the reigning sovereign, are the law of Scotland, if the same shall be under the reserved for their disposal as private persons, and sign manual, attested by two or more witnesses; freed from the rights of the Crown; but as it was and every such disposition or conveyance, if granted doubtful whether this statute extended to Scotland, mortis causa, shall be valid and effectual, whether the 35th chapter, entitled, "An Act to remove the same shall be under the sign manual as aforesaid, doubts concerning, and to amend the law relating to, or shall be signed by some other person in the prethe private estates of Her Majesty, her heirs, and sence of the granter, and by his or her direction in successors," section 4, enacts— the presence of two or more witnesses, who shall "Such private estates of Her Majesty, her heirs, attest the same, although the same shall not be exeor successors, situate or arising in Scotland, as are or cuted according to the forms of the law of Scotland." shall be held feudally directly under the Crown, as Section 11 provides for declarators of trust on superior, may lawfully be held by Her Majesty, her the death or removal of the trustees, and the apheirs, or successors, of and under herself or them-pointment of new ones on their nomination by the selves, as sovereign or sovereigns of this realm and feudal superiors, and the dominium untile thereof shall not become, ipso facto, consolidated with the dominium directum; and such private estates of Her Majesty, her heirs, or successors, situate or arising in Scotland, as are or shall be held feudally under a subject superior, or as are or shall be held in lease, shall be vested in some trustee or trustees for Her Majesty, her heirs, and successors, respectively, from time to time, to be respectively named or appointed by instrument in writing, under the sign manual of Her Majesty, her heirs, or successors, respectively, in the same manner as if the second section of the said Act of the thirty-ninth and fortieth years of His Majesty King George the Third, chapter eighty-eight, Lad extended to all such estates."

Chapter 53 is entitled "An Act to facilitate the proof of title to, and conveyance of, real estates.” The Act applies to England only, as the terms of the title show. The Act appears to be the adaptation of our system of registration of land titles, and otherwise rendering an English title indefeasible by methods resembling our own; but we refer to it for the purpose of quoting the forms of conveyance given in a Schedule appended to the Act. Their brevity makes them models to law reformers on this side of the Tweed, and, as such, we commend them to consideration:

Form of Transfer of Land.

Dated this

day of

The section remedies the anomaly of the sovereign
balding under herself, and satisfies the feudal re-
irement. The 6th section provides for the
execution of deeds of conveyance of private estates
of Her Majesty in Scotland, and introduces a novelty
in the law of Scotland, for which there does not
pear to have been any necessity. For the first A solicitor of the High Court of Chancery,

I, A B of, etc., in consideration of (five thousand pounds) paid to me, grant to C D, etc., and his heirs for ever, all (insert description).

, a deed, conveying heritage in Scotland, is de valid and effectual, though not executed according to the forms of the law of Scotland; and what is still more anomalous, the sovereign granting the disposition need not sign it-it is held enough if he or be give directions to some one in his or her presence to sign for him or her. The clause enacts— “The private estates of Her Majesty, her heirs, or successors, situate or arising in Scotland, may be posed of by Her Majesty, her heirs, or successors, by dispositions or conveyance, either special or peral, granted either mortis causa or inter vivos; had all dispositions, conveyances, deeds of appointt, commissions, powers of attorney, wills, deeds of settlement, and other deeds or instruments to be made of granted by Her Majesty, her heirs, or ocessors, of or relating to the private estates of Her Majesty, her heirs, or successors, situate or aring in Scotland, shall be valid and effectual,

(Signed and sealed by A B). Witness, E F of, etc.,

or a certificated conveyancer.

Form of Mortgage.

Dated this day of

I, A B, in consideration of (five thousand pounds) lent to me by C D, grant to C D and his heirs the Hereditaments as described in the schedule, to secure to C D the payment of the principal sum of (five thousand pounds) on the day of and interest at five per cent. in the meantime, halfyearly. C D shall have power to sell, on default of payment of the principal, or interest, or any part thereof respectively.

Witness (as above).

(Signed and sealed, etc).

Form of Transfer by Indorsement.

hough not executed according to the forms of I, the within-named A B, in consideration of (five

thousand pounds) paid to me by C D, transfer to move the lunatic on probation, without an order C D the within-mentioned lands.

THE

SCOTTISH LAW MAGAZINE

AND

SHERIFF COURT
COURT REPORTER.

THE SANDYFORD MURDER.

THE facts of this case, so far as yet known to the public, the house to ascertain what had become of Jessie and proved before the jury, are briefly told. Jessie M'Pherson. He found her bed-room door locked, and M Pherson, a domestic servant in the service of Mr John he made no attempt to open it. On his return from Feming, accountant, was, on the afternoon of Monday, business on Saturday he still found Jessie absent. He 7th July, 1862, found dead in a bed-room of Mr cooked his own meals on Saturday, on Sunday, and Feming's residence at 17 Sandyford Place, Glasgow. Monday, having gone twice to church on Sunday. And On examination it was found she had been most brutally it was only on the return of Mr John Fleming on the murdered, more than forty wounds having been inflicted Monday afternoon that, on being told of the absence of ely on the head, any one, or several of which, having the servant, and the fastened door, that he, urged by a en declared by medical men, to have been sufficient to natural curiosity, opened it with a key taken at hazard ve caused death. The character of the wounds put it from an adjoining pantry door, and the mangled body of yond question that it was a murder, and not suicide. the unfortunate woman was discovered. On looking about The family of Mr John Fleming were in the habit of the house, it was discovered that some silver plate was ng down to the coast, to their sea-side residence, amissing. Search was made among the pawnbrokers, Fards the end of the week, at that season of the year, and the missing property was soon found. It had been sad all had left town on Friday, the 4th July, with the pawned in name of a Mary Macdonald, 5 St Vincent ption of Mr James Fleming, father of Mr John Street, but the pawnbroker gave such a description of Teming, and the servant, Jessie M'Pherson. She was the person who had pawned it as drew the suspicion of fin charge of the house in Sandyford Place, and to the police on one of the parties who had been precogad to the old man. On the night between Friday nosced. After watching this person for a time, the 4th, and Saturday the 5th July, the only persons police conceived that they had got a clue to the murderer, ed before the jury to have been in the house were and they apprehended the woman Jessie M'Lachlan. ervant and the old man. He is eighty-seven years She was identified as the person who had pawned the but of great bodily and mental activity for his silver plate. It was further discovered that certain and he could read without the use of spectacles. articles of wearing apparel which had belonged to the the only person in possession of the house at the time murdered woman had been disposed of in various ways— urder was committed, the old man was taken into given to dyers to re-dye-sent, some to Hamilton, where oly, and charged with the crime. He was examined, M'Lachlan was traced, and near to which articles of anting to our Scottish system, in presence of one of dress, said to have belonged to the murdered woman, Sheriff-Substitutes, by the Procurator-Fiscal, in the saturated with blood, were afterwards found-and business chambers. It is understood he denied others sent to Ayr and Greenock. On her examina-owledge of the crime, and having been examined tions, which, as we formerly stated, were unusually edly, he was, after a consultation with Crown numerous and protracted, she denied all knowledge of el, liberated from custody. At the trial he was the murder, and attempted to explain how she came to laced and examined as a witness for the crime. His the possession of the articles of clothing, and the silver nt substantially was, that he went to bed on the plate. These explanations were either not proved or ay evening about nine o'clock-that he was wakened disproved at the trial; they were, in short, in great four in the morning by loud "squeels," but they part untrue. It was proved that on the Friday she was not alarm him; and having looked at his watch, in necessitous circumstances-was behind with her rent - he had placed below his pillow, he fell asleep that he rose about nine o'clock on Saturday g, and not finding the servant moving about, and g to him, as was her custom, a portion of his fast in bed, he dressed himself, and went to his in his usual way. He made no search about

had pawned her own and her husband's clothing and his silver watch, but that on the Saturday she paid her rent, and relieved a number of articles from the pawn. She was said to have been a weak, sickly woman, while Jessie M'Pherson was a much stronger woman, and that there had been a severe struggle. The two women

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