Page images
PDF
EPUB

testaments will be protected from falsification by the best and simplest means which can be adopted: and that when once honestly made, they shall not be defeated (as the will certainly was in the case here related) on a mere objection of formality.

Time does not permit the subject of personal liberty to be adduced as another illustration of my present topic. The subject itself has too many ramifications, and admits of too diversified considerations, to be treated of in a brief lecture. And I have the satisfaction to know that the question of the “ Liberty of the Subject” has recently been treated of, learnedly and ably, by a member of this House, * and his work is therefore open to you all.

Do not suppose that the observations which have now been addressed to you are, in the least degree, intended to divert you from the study of the details of your profession. While it is most desirable, not merely for yourselves, but for your country, that you should consider the principles on which the laws you will assist in administering are founded, it is also desirable that you should make yourselves masters of the details of the machinery by which they are to be put into active operation. Pleading and Practice deserve to receive your careful consideration. You are to become the advocates of the interests, the narrators of the rights and wrongs, the claims and the objections to claims, of your countrymen. For the due discharge of such tasks you should be fitted in every possible way. As in the contests of the body, it is of little benefit to be armed with powerful weapons if you do not understand the best mode of skilfully using them, so, in the contests of the mind, and especially in those arising out of legal questions, the combatant ought to be fully prepared for the scientific application of his knowledge. Pleading and practice are Law—just as much as is the Legislative declaration of right and wrong—for the necessity of providing in what way right is to be asserted, and wrong * Paterson on the “Liberty of the Subject.”

to be defeated, is inevitable to every procedure which deserves the character of a system. Provisions for that purpose constitute Law. Otherwise irregularity would be in the ascendant everywhere, and nothing would be certain or safe. Continue, therefore, all the studies which I have urged upon you both as to Principle and Practice, and be strengthened by the conviction that, to those who seriously and carefully gird themselves to study, those rewards and honours of the Profession will surely come some day which ought always to follow ability applied with honest zeal, and well-directed industry.

V.-CRIMINAL PROCEDURE IN SCOTLAND: ITS

LESSONS FOR ENGLAND. TN view of the Government Bill which is to be laid before 1 Parliament this Session, it does not seem to be altogether unprofitable to consider the Criminal Procedure of the northern part of the kingdom; and, in attempting a brief outline of this subject, we have to acknowledge that we have copiously availed ourselves of the admirable Treatise on Criminal Law by the Solicitor-General of Scotland.

Jurisdiction.By the general principles of the law of Scotland, every person, British subject or foreigner, charged as principal or accessory with a crime committed on and against the Statute or Common Law of the land, is amenable to the jurisdiction of the Scottish Courts. Those who are exempted from the operation of this rule are Peers, Members of the House of Commons, soldiers, and clergymen in certain cases.

The Criminal Courts of Scotland are four in number,

namely, the High Court of Justiciary, and the courts of the Sheriff, of the City and Burgh Magistrates, and of the Justices of the Peace.

The Supreme Criminal Court of Justiciary consists of seven Lords Commissioners of Justiciary, who are appointed by the Sovereign, and are members of the Supreme Court of Civil Judicature in Scotland. Of this court the Lord Justice General is president, the Lord Justice Clerk is next in rank, and the others take precedence according to the date of their commissions. This court has jurisdiction of all crimes committed in Scotland or at sea, and is the only competent court in treason, murder, robbery, rape, fireraising, rescue, breach of duty by magistrates, and in all cases in which, by the Statute law, a higher punishment than imprisonment is directed. It holds courts in Edinburgh, and circuit courts in certain towns, and may be constituted by one judge; and its jurisdiction, when sitting in Edinburgh, extends to the whole of the kingdom. Where points of difficulty arise as to the relevancy, or as to the effect of verdicts, or the proper sentences to be pronounced, it is usual for the judge or judges to certify the case for the opinion of the whole Court, in which case the seven judges, or as many as can attend, meet and dispose of the matter. The presiding judge in this High Court of Justiciary, as the Justiciary Court is called when assembled in Edinburgh, has no vote, unless when the other judges are equally divided. The circuit courts are held twice a year, in spring and autumn, at all the circuit towns except Glasgow, in which there are three circuits every year.

The Jurisdiction of Sheriffs, who are appointed by the Crown, and rarely try prisoners, and of the Sheriffs-Substitute, who are chosen by the Sheriffs-Principal, and exercise all the ordinary functions of their principals, is limited to offences in their counties, except as regards continuous crimes, and crimes in reference to which the Sheriff of the place of apprehension has jurisdiction by Statute. The

Sheriffs can try all crimes which infer only an arbitrary punishment, and which are not restricted by Statute to any other forum. The Sheriffs-Substitute reside in their respective counties, and hold frequent Criminal Courts, usually at intervals of about a month.

*The Jurisdiction of Municipal Magistrates and Justices of the Peace, at common law, is confined to petty cases, but, as regards particular offences, is very extensive. Their jurisdiction is confined to crimes committed in their boroughs, or counties, except in the case of crimes committed at sea, and offences in reference to which jurisdiction is conferred upon the magistrates of the place of apprehension by Statute.

Proceedings between Arrest and Trial.-When a crime is committed in Scotland, the offender may be arrested by a Magistrate who witnesses it, and, in all serious crimes, if immediate complaint be made, the Magistrate may verbally order the offender to be arrested. A constable or other officer of the law who sees a person commit a felony, or breach of the peace, or threaten violence, may arrest him; and he may do the same on direct information of eyewitnesses. An officer may also break open doors in cases of serious crime, but before he does this, must state his purpose, demand admittance, and be refused. In a large number of cases, Magistrates, on information of crimes, grant warrants to arrest. These warrants, unless required by Statute, need not be preceded by a petition, oath, or declaration of the applicant; and, when granted by Sheriffs, are good in all counties in Scotland, and when executed beyond the bounds of the Magistrate granting them, do not require to be endorsed. The person arrested must be brought before a Magistrate without delay.

After the offender's apprehension, the first step is his judicial examination. If the crime be too serious to be tried summarily, the prisoner as early as possible is taken before the Magistrate to whom the accused is first presented, or before some other Magistrate on his remit. The, Magistrate need not have power to try the offence. The Magistrate must be present during the examination, and give protection against unfair or oppressive examination ; for the prisoner is not allowed to have legal advice at this stage of the proceedings. He must inform the prisoner of the charge against him. He should warn him that what he says may be used in evidence against him, and that he may decline to answer, and these solemnities are now so established that the want of them would probably invalidate the declaration. If the prisoner refuses to answer, his refusal is taken down, and forms a valid declaration; and if he answer, what he says material to the charge is taken down by the Magistrate, read over, explained, amended and authenticated. The declaration by the prisoner must be made in presence of two witnesses, and may be subsequently amended on the prisoner's re-examination, which may be demanded by him as often as he pleases till the indictment is served on him.

After the examination, the accused may be committed for trial, or for further examination. If the latter, he is not entitled to bail, and, therefore, the confinement must be for a reasonable time. To justify a commitment for trial, there must be a signed warrant which contains a specification of the crime not merely by naming it, but by a general statement, e.g., that the accused murdered A.B. by stabbing him at such and such a place and date; and if there is no such document, the Court of Justiciary will suspend or lay the warrant aside, and liberate the accused. But the leading peculiarities and distinguishing features of the criminal procedure in Scotland are the right of prosecution and the investigations preliminary to trial.

Right of Prosecution, &c.-By the Common Law of Scotland, the right to prosecute offenders is limited to officials who have authority to prosecute for the public interest, and to persons who are specially wronged. Private prosecution

« PreviousContinue »