Bail before Trial: Reflections of a Scottish Lawyer

Abstract

Links between Scots law and the Law School of the University of Pennsylvania are of long standing. Indeed, as Professor Nadelmann has noted recently,' James Wilson, a Scottish-born member of the Supreme Court of the United States, referred to Scottish sources frequently, when delivering his Lectures on Law in the University of Pennsylvania in 1790. Shortly before the late Dr. Edwin R. Keedy assumed his duties as professor at that University-where for fortyfour years he was to do pioneer work in the field of comparative criminal law and procedure-he had applied himself to a serious study of Scottish criminal procedure. The fruits of this early research were published in 1913,2 and his reputation has always stood high among Scottish lawyers. Witness, for example, the reference to Keedy's researches in the Stair Society's publications.3 It is proposed to examine in this paper-dedicated to the memory of Dr. Keedy-the operation of bail in Scottish practice, and to contrast it with the English system in particular. To understand Scottish practice regarding bail, some knowledge of Scottish criminal law and procedure in general is desirable. This can scarcely be assumed in a learned journal which will be read by those who, for the most part, have been trained in the Anglo-American common law. Fortunately, Dr. Keedy himself has in his earlier writings explained Scottish criminal procedure to the American reader.4 What he wrote in 1913 is still substantially true, though there have been important changes during the past forty-six years, and recent historical research has discounted certain views related to and narrated by Dr. Keedy regarding the earlier period of Scots law. So far as the modern law alone is concerned, his account written before the First World War has been superseded particularly in relation to appeal, outlawry and declarations at judicial examination. Appeal is now competent from conviction on