who examines witnesses without oath, and allows the prisoner, if he please, to make a declaration, which, being properly attested, may be founded on at trial as evidence against him. The committal for examination cannot last more than a few days, without subjecting the magistrate to a suit for damages; and the procurator-fiscal acts under a like responsibility, which, however, does not extend to the counsel for the Crown. If no case be made out on examination, the prisoner is dismissed: otherwise, the sheriff commits him for trial, and transmits the evidence to the Crown counsel. This committal is, likewise, made under a liability in damages, if it have been improperly ordered.

As soon as a prisoner is committed for trial, he may protect himself from undue delay of trial by the remedy called "running his letters;" a process in force since 1701, and analogous to the Habeas Corpus Act. The prisoner presents an application to any judge competent to his trial, who must, within twenty-four hours, give an order on the public prosecutor to bring on the trial within sixty days, with intimation that at the end of that time the prisoner will be discharged. When the crime is serious, and the time of circuit distant, this application often compels the Crown counsel to bring the prisoner and witnesses to Edinburgh. If, at the end of the sixty days, no criminal indictment be executed on the prisoner, he is set at liberty; but he may be again imprisoned, on a warrant from the Court of Justiciary. In this case, if the trial be not concluded within forty days after the second apprehension, the prisoner must be set at liberty, under heavy penalties on those detaining him; and is declared for ever free of the charges against him.

The magistrate must, on application, grant or refuse bail, and fix its amount within statutory limits. All offences are bailable, except capital crimes, and those post-office offences which used to be capital.

The Crown counsel, on examining the declarations of the witnesses, may immediately order the prisoner to be liberated, or fix his trial, either before the Justiciary or Circuit Courts, or, if the crime admit of it, before the sheriff. In the course of last century we find the latter exercising a criminal jurisdiction, which extended, in some cases, to life and death; but his powers, though not strictly defined, are now greatly limited. It is quite certain, that without a jury the sheriff cannot lawfully pronounce any sentence exceeding fine, imprisonment, or banishment from the county; and no trials take place before sheriffs without a jury, excepting for petty offences against the public peace. In trials, before the principal sheriff and a jury, the procurator-fiscal of the shire acts as prosecutor; and the sentence may be appealed from to the Court of Justiciary, whose decision is final.

In Scotland there is no coroner; and no grand jury, except in cases of high treason, which are tried in the English form, before the Count of Justiciary, or a commission of Oyer and Terminer, of which three members must be Justiciary judges.

In ordinary causes, the indictment must be delivered to the prisoner at least fifteen days before trial. It must be drawn specifically and accurately, slight technical errors being sufficient to vitiate it : and it must have annexed to it a list of the witnesses and of the jury. men who are to be summoned, and a list of the articles to be exhibited

as evidence for the prosecution, which, if demanded, must be also shown to the prisoner before trial.

The day of trial being arrived, either in the High Court of Justiciary or Circuit Court, the jury are taken from a list of, at least, forty-five, returned by the sheriff, of whom two-thirds are common, and one-third special, jurors. The jury is ballotted for, so that one third may be special, and two-thirds common, jurors; though, if the accused be a landed proprietor, he is entitled to have a majority of special jurors. Besides challenges on cause assigned, the prosecutor and prisoner may each challenge peremptorily five jurors, but only two special jurors. The number of the jury is fifteen. If a prisoner do not appear, he cannot be convicted of the crime charged, but merely have sentence of outlawry pronounced against him; from which he may afterwards be relieved on surrendering himself for trial.

The first step is to read the indictment, and to determine on its relevancy, i. e. whether the facts alleged be sufficient, if proved, to constitute the crime charged. This is the stage for bringing forward all objections to the indictment, which would not be received after the court has formally declared it to be good. A prisoner has always counsel if he be too poor to hire one, the court will order a barrister to act for him; but this is never necessary: the number of junior counsel willing to act gratuitously is always greater than that of the trials; and, in Edinburgh, at all times, and on the circuits, when important civil jury trials are to come on, it is not unusual to see the senior counsel conducting, without remuneration, the defence in difficult criminal causes.

The witnesses do not hear each other examined; and if the prosecutor be shown to have communicated with them after they were formally cited to appear in court, the prisoner may successfully object to their being examined. The prosecutor, too, must close his evidence before the evidence in exculpation begins. The Scotch rules of evidence give the prisoner an advantage, which, in England, he enjoys only in cases of high treason: he can be convicted only on the testimony of two witnesses, or of one witness supported by circumstantial evidence so strong as to equal that of a second witness. The evidence for both parties being finished, counsel on both sides address the jury, the prisoner having the last word; after which the judge charges the jury.

The verdict need not be unanimous: the narrowest majority is sufficient to convict as well as to acquit. But this practice, though popular in Scotland, is, we think, a serious defect; for there seems to be no other means than compelling the jurors to be unanimous for procuring that attention to and discussion of the subject that is so essential. A verdict of Not Guilty indicates a belief by the jury in the prisoner's innocence: a verdict of Not Proven indicates suspicion, but a want of proof of guilt. Either verdict is conclusive: it is not possible again to imprison or try the prisoner for that crime. In capital cases, the Crown counsel have power, before moving for sentence, to restrict the libel, a form which disables the judge from pronouncing a capital sentence. After sentence has been pronounced, the criminal may, as in England, appeal to the mercy of the Crown; and to allow time for this appeal,

VOL. II.

it is provided that no capital sentence shall be executed sooner than fifteen days after sentence, if south, or sooner than twenty, if north of the Tay. Till lately the time was longer. There is no appeal from a judgment of the justiciary court to the House of Lords.

It is not going too far to say, that, down to a very recent period the Court of Justiciary was, in as far as respects political cases, one of the most corrupt and worthless tribunals in Europe. Owing to the vicious mode in which juries were formerly selected, (see ante, p. 171,) it was always in the power of the Lord Advocate, or public prosecutor, to get a jury appointed favourable to his own views; and the judges having been appointed by the Crown, and looking to it, most probably, for farther advancement for themselves or their families, were, with few exceptions, its obsequious tools. Hence, in Scotland, to be prosecuted for a political offence was, for a lengthened period, nearly equivalent to being condemned. Luckily, however, this disgraceful state of things has been reformed. Juries in Scotland are now fairly selected; the accused has the same right of peremptory challenge as in England; so that, the judges, however disposed, can no longer pack juries and dictate verdicts.

But the judges of justiciary still possess, in virtue of what has been denominated the native vigour of the court, the despotical power of declaring new crimes, and of imposing discretionary punishments upon those by whom they are committed. How improbable, soever, the statement may appear, there is really no act, in the whole range of human conduct, which the Court of Justiciary may not, at pleasure, brand as a crime, by sustaining the relevancy of an indictment or charge, at the instance of the public prosecutor, for its commission; and upon conviction the court may inflict such punishment as it thinks proper upon the criminal. We doubt, whether any tribunal with such tremendous powers exists in Russia, Turkey, or Japan. Unchecked by statute, or by appeal to any superior authority, the only palliation of its abuse is to be found in the prerogative of mercy! It may well excite astonishment that so monstrous an anomaly should have been so long tolerated in any country, and especially in one having such high pretensions to freedom and civilization. Perhaps it may be said, that we live in times when the most dangerous and extravagant judicial authority is little likely to be abused, and is, consequently, of little practical importance. But every body, in any degree acquainted with the history of Scotland, knows that the native vigour of the Court of Justiciary has been exerted over and over again, and been perverted to the basest purposes. And can any one presume to say, that in time to come, circumstances are never to arise to bring this irresponsible power, if it be not suppressed, once more into activity? The possibility of any such revival should be guarded against by its abolition. And we confidently anticipate, that at no distant period this will be effected; and that the highest criminal court in Scotland will be deprived of an authority which gives it an unconstitutional character; and which cannot be exerted without trampling on every principle of justice. If it require additional powers let them be granted by statute; but do not let them be assumed by time-serving judges, at the suggestion of the Crown or of the Lord Advocate.

CHAPTER VII. CONSTITUTION, COURTS, &c., OF IRELAND.

SECT. 1.-Sketch of the Political History of Ireland.

THE early accounts of Ireland are singularly disfigured by fable. It was not invaded by the Romans, whose knowledge of it could, therefore, be derived only from the reports of the Britons, or of natives of Ireland in Britain. The fair presumption, however, is, that its inhabitants were then more barbarous than even those of this island.* In the 5th century Christianity was introduced into Ireland by St. Patrick, a native of North Britain, who, in his youth, had been carried a captive into Ireland. Along with the gospel the British missionaries introduced the letters and learning of Rome; and a school founded at Armagh, not long after, acquired considerable distinction; but it would be as inconsequential to infer, from the fact of this and a few other schools existing in the country, that it was then distinguished by literature and civilization, as it would be to allege that such was the case with the Western Islands, and the adjacent parts of the mainland of Scotland, in the 8th century, because there was then a celebrated monastery and school in Iona.

The accounts of the political state of Ireland, previously to the English invasion, are obscure and contradictory. This much, however, may be gleaned from them, that the island was parcelled out into a number of semi-independent states or clanships, which sometimes did, and sometimes did not, acknowledge their dependance on a chief prince or king of all Ireland. Incessant hostilities were waged by the petty sovereigns against each other, which were not even interrupted by the invasion of the Danes in the 9th century. The latter, in no very long space, became masters of the greater part of the coasts of the island; and occupied the ports of Dublin, Wexford, Waterford, and Cork, when they were taken by the English.

The successors to the petty sovereigns, or to the chiefs of clans or septs, were called tanists, and were generally elected from the family or kindred of the reigning prince or chieftain during his lifetime. Females were excluded from the succession, and minors were never chosen as tanists; the object being to have a prince of mature years always at the head of the seigniory or clan, who might be able to direct their operations, and to defend them from hostile attacks. The laws of the Irish were such as might be expected to prevail among a rude and barbarous people; and were administered in the open air by hereditary judges, denominated brehons. The most atrocious crimes might be compounded for by the payment of an eric, or fine, rated in cattle, or some sort of produce; and, as in all cases a considerable portion, and in some cases the whole, of the fine went to the lord, or chief of the sept, his interest obviously led him to encourage rather than to repress crime! The laws with respect to the succession to

* Pomponius Mela, who has given so accurate an account of the soil of Ireland, and of the richness of its pastures, says, Cultores ejus inconditi sunt, et omnium virtutum ignari, pietatis admodum expertes (Lib. iii. sec. 6.) Strabo (lib. iv.) gives some extraordinary details respecting the Irish, which, however, he does not state of his own authority, but merely as having been reported to him.

fixed property were such as would have alone served to extinguish all industry. "Through the whole country," says Leland, "the tenure of lands determined with the life of the possessor; and, as the crimes or misfortunes of men frequently forced them from one tribe to another, property was eternally fluctuating, and new partitions of lands made almost daily. Hence the cultivation of lands was only in proportion to the immediate demands of nature, and the tributes to be paid to superiors." (Hist. of Ireland. Introduct. p. 34.)

A people with such institutions could not be otherwise than barbarous; and such, in fact, they were. Sir William Petty, who was well versed in the history and intimately acquainted with the condition of Ireland, declares that " at this day (1672) no monument nor real argument evinces that the Irish when first invaded, had any stone-housing at all, any money, any foreign trade, or any learning (but the legends of saints, psalters, missals, rituals, &c.), or geometry, astronomy, anatomy, architecture, enginery, painting, carving, or any kind of manufacture, or the least use of navigation or the art military." (Political Anatomy, p. 317). There cannot, in truth, be any doubt whatever (despite the fables and forgeries of their monkish annalists) that at the epoch of the English invasion the Irish were all but total strangers even to the rudiments of civilization, and were immersed in the lowest depths of barbarism. "Neither was it possible to reform the evil customs that prevailed among the Irish, without altering their government; nor could that be accomplished by any other means than by their being subjected to some more civilized foreign power."

Soon after the English conquest effected by Henry II., in 1171, the island was divided by John into twelve counties. But, though the king of England received the submission of the Irish chieftains, and was nominally lord of Ireland, his authority was, for a lengthened period, only partially recognized. The native families of O'Conor, O'Neil, O'Melaghlin, Byrne, and O'Toole, still asserted, and to a certain degree exercised, sovereign authority in Connaught, Ulster, and part of the midland districts. Even in Leinster and Munster, where the English were principally settled, and which had partially adopted the laws and constitution of England, the sovereign authority was far from being generally or firmly established. The allegiance of several of the great feudal barons, who held extensive tracts of land, was frequently little better than nominal. The English families of De Burgh in the West, of Desmond in the South, and of Butler in the central parts, adopted the manners of the natives, and often became the declared and most dangerous enemies of their mother country. At one time there were nine counties palatine, with independent jurisdiction, in the part of the island subject to England, and distinguished by the name of the pale. The miseries resulting from the interminable disorders inseparable from such a state of things, were increased in 1315 by an

Lyttelton's Henry II., v. 56; where the reader will find an excellent account of the state of Ireland previously to the English invasion. See also the excellent work of Dr. Ledwich on the Antiquities of Ireland, 4to. 2nd ed., Dublin, 1804, passim; Moryson in his Itinerary, part iii. pp. 156-164, &c., ed. 1617, gives various statements strikingly illustrative of the barbarism of the Irish. See also Spenser's State of Ireland, Davis's Tracts, &c.