pecially mentioned in pt 1701, c. 6. Every prisoner committed for trial, if the crime of which he is accused be not capital, is entitled to be released upon bail, the extent of which is to be modified by the judge, not exceeding 12,000 merks, Scots, for a nobleman, 6000 for a landed gentleman, 2000 for every other gentleman or burgess, and 600 for any other inferior person: or, in the option of the judge, £60 sterling. That persons who, either from the nature of the crime with which they are charged, or from their low circumstances, cannot procure bail, may not be for ever in prison untried, it is lawful for every prisoner to apply to the criminal judge, that his trial may be brought on. The judge must, within twenty-four hours after such application, issue letters directed to messengers, for intimating to the prosecutor to fix a diet for the prisoner's trial, within sixty days after the intimation, under the pain of wrongous imprisonment and, if the prosecutor does not insist within that time, or, if the trial is not finished withing forty days more when carried on before the justiciary, or in thirty days when before any other judge, the prisoner is, upon a second application, setting forth that the legal time is elapsed, entitled to his freedom, under the same penalty.

Upon one's committing any of the grosser crimes, it is usual for a justice of the peace, sheriff, or other judge, to take a precognition of the facts, i. e. to examine those who were present at the criminal act, upon the special circumstances attending it, in order to know whether there is ground for a trial, and to serve as a direction to the prosecutor how to set forth the facts in the libel; but the persons examined may insist to have their declarations cancelled before they give testimony at the trial. Justices of the peace, sheriffs, and magistrates of boroughs, are also authorised to receive informations concerning crimes to be tried in the circuit courts; which informations are to be transmitted to the justice clerk forty days before the sitting of the respective courts. To discourage groundless criminal trials, all prosecutors, where the defender was absolved, were condemned by statute in costs as they should be modified by the judge; and, besides, were subjected to a small fine to be divided between the fisc and the defender: and, where the king's advocate was the only pursuer, his informer was made liable. This sufficiently warrants the present practice of condemning vexatious prosecutors in a pecuniary mulct, though far exceeding the statutory sum.

2. Of prosecutions.-The forms of trial upon criminal accusations differ much from those observed in civil actions, if we except the case of such crimes as the court of session is competent to, and of less offences tried before inferior courts. The trial of crimes proceeds either upon indictment, which is sometimes used when the person to be tried is in prison, or by criminal letters issuing from the signet of the justiciary. In either case, the defender must be served with a full copy of the indictment or letters, and with a list of the witnesses to be brought against him, and of the persons who are to pass on the inquest; and fifteen free days must intervene be

tween his being so served and the day of appearance. When the trial proceeds upon criminal letters, the private prosecutor must give security, at raising the letters, that he will report them, duly executed, to the justiciary in the terms of 1535, c. 35; and the defender, if he be not already in prison, is by the letters required to give caution, within a certain number of days after his citation, for his appearance upon the day fixed for his trial; and, if he gives none within the days of the charge, he may be denounced rebel, which infers the forfeiture of his moveables.

Libel.-That part of the indictment, or of the criminal letters, which contains the grounds of the charge against the defender, and the nature or degree of the punishment he ought to suffer, is called the libel. All libels must be special, setting forth the particular facts inferring the guilt, and the particular place where these facts were done. The time of committing the crime may be libelled in more general terms, with an alternative as to the month, or day of the month; but, as it is not practicable in most cases to libe. upon the precise circumstances of accession tha may appear in proof, libels against accessories are sufficient, if they mention, in general, that the persons prosecuted are guilty art and part.

Letters of exculpation.-The defender of a criminal trial may raise letters of exculpation, for citing witnesses in proof of his defences agains! the libel, or of his objections against any of the jury or witnesses, which must be executed on the same day of appearance with that of the indictment or criminal letters.

Diets of appearance. The diets of appearance, in the court of justiciary, are peremptory. The criminal letters must be called on the very day to which the defender is cited; and hence, if no accuser appears, their effect is lost, instantia perit, and new letters must be raised. If the libel, or any of the executions, shall to the prosecutor appear informal, or if he be diffident of the proof, from the absconding of a necessary witness, or such like, the court will, upon a motion made by him, desert the diet pro loco et tempore; after which new letters (ecome also necessary. A defender who does not appear on the very day to which he is cited is declared fugitive; in consequence of which his single escheat falls. The defender, after his appearance in court, is called the pannel.

The two things to be chiefly regarded in a criminal libel are, 1. The relevancy of the facts, i. e. their sufficiency to infer the conclusion; 2. Their truth. The consideration of the first belongs to the judge of the court; that of the other to the jury of assize. If the facts libelled be found irrelevant, the pannel is dismissed from the bar; if relevant, the court remits the proof thereof to be determined by the jury; which must consist of fifteen men, picked out by the court from a greater number, not exceeding forty-five, who have been all summoned, and given in list to the defender at serving him with a copy of the libel.

Evidence.-Crimes cannot, se debts, be referred to the defender's oath; for no person is compellable to swear agains' himself, where his

life, limb, liberty, or estate, is concerned; nor even in crimes which infer infamy, because one's good name is, in right estimation, as valuable as his life. There is one exception, however, to this rule in trying the crime of usury, which may be proved by the usurer's oath, notwithstanding the rule, nemo tenetur jurare in suam turpitudinem. Crimes, therefore, are, in the general case, proveable only by the defender's free confession, or by writing, or by witnesses. No extra-judicial confession, unless it is adhered to by the pannel in judgment, can be admitted as evidence.

All objections relevant against a witness, in civil cases, are also relevant in criminal. No witness is admitted who may gain or lose by the event of the trial. Socii criminis, or associates in the same crime, are not admitted against one another, except either in crimes against the state, as treason; in occult crimes, where other witnesses cannot be had, as forgery; or in thefts or depredations committed in the Highlands The testimony of the private party injured may be received against the pannel, where the king's advocate is the only prosecutor, if, from the nature of the crime, there must needs be a penury of witnesses, as in rape, robbery, &c.

The jury and their verdict.-After all the witnesses have been examined in court, the jury are shut up in a room by themselves, where they must continue, excluded from all correspondence, till their verdict, or judgment, be subscribed by the foreman, or chancellor, and clerk; and accordingly to this verdict the court pronounces sentence, either absolving or condemning. It is not necessary, by the law of Scotland, that a jury should be unanimous in finding a person guilty; the narrowest majority is as sufficient against the pannel as for him. Juries cannot be punished on account of an erroneous verdict, either for or against the pannel. Though the proper business of a jury be to enquire into the truth of the facts found relevant by the court, for which reason they are sometimes called the inquest, yet, in many cases, they judge, also, in matters of law or relevancy. Thus, though an objection against a witness should be repelled by the court, the jury are under no necessity to give more credit to his testimony than they think just; and, in all trials of art and part, where special facts are not libelled, the jury, if they return a general verdict, are indeed judges, not only of the truth, but of the relevancy of the facts that are sworn to by the witnesses. A general verdict is that which finds, in general terms, that the pannel is guilty, or not guilty, or that the libel or defences are proved or not proved. In a special verdict, the jury finds certain facts proved, the import of which is to be afterwards considered by the court. Execution.-Criminal judges must now suspend, for some time, the execution of such sentences as anect life or limb, that so condemned criminals, whose cases deserve favor, may have access to apply to the king for me cy. No sentence of any court of judicature south of the river Forth, importing either death or demembration, can be executed in less than thirty days; and, if north of it, in less than forty days, after the date of the sentence. But corporal punish

ments, less than death, or dismembering, e. g. whipping, pillory, &c., may be inflicted eight days after sentence beyond it.

Extinction or remission of crimes.-Crimes are extinguished (1.) By the death of the criminal; both because a dead person can make no defence, so that his trial would be truly a judging upon the hearing of one side; and because, though his guilt should be ever so notorious, he is, after death, carried beyond the reach of human penalties. Such trials, therefore, can have no effect, but to punish the innocent heir, contrary to that most equitable rule, culpa tenet suos auctores.

(2.) Crimes may be extinguished by a remission from the sovereign. But a remission, though it secures the delinquent from the public resentment, the exercise of which belongs to the crown, cannot cut off the party injured from his claim of damages, over which the crown has no prerogative. Whoever, therefore, founds on a remission, is liable in damages to the private prosecutor, in the same manner as if he had been tried and found guilty., Even general acts of indemnity passed by parliament, though they secure against such penalties as the law inflicts upon the criminal merely per modum pœnæ, yet do not against the payment of any pecuniary fine that is given by the statute to the party injured, nor against the demand of any claim competent to him in name of damages.

Less injuries, which cannot be properly said to affect the public peace, may be extinguished, either by the private party's expressly forgiving him, or by his being reconciled to the offender after receiving the injury. Hence arises the rule, dissimulatione tollitur injuria. But, where the offence is of a higher nature, the party injured, though he may pass from the prosecution, in so far as his private interest is concerned, cannot preclude the king's advocate, or procurator fiscal, from insisting ad vindictam publicam.

Crimes are also extinguished by prescription, which operates by the mere lapse of time, without any act either of the sovereign or of the private sufferer. Crimes prescribe in twenty years; but, in particular crimes, the prescription is limited by statute to a shorter time. No person can be prosecuted, upon the act against wrongous imprisonment, after three years. High treason, committed within his majesty's dominions, suffers likewise a triennial prescription, if indictment be not found against the traitor within that time. All actions, brought upon any penal statute made or to be made, where the penalty is appropriated to the crown, expire in two years after committing the offence; and, where the penalty goes to the crown or other prosecutor, the prosecutor must sue within one year, and the crown within two years after the year ended. Certain crimes are, without the aid of any statute, extinguished, by a shorter prescription than twenty years. By our old law, in the cases of rape, robbery, and hamesucken, the party injured was not heard after a silence of twenty-four hours; from a presumption that persons could not be so grossly injured without immediately complaining: And it is probable that a prosecution for these crimes, if delayed for any considerable time, would be cast

even at this day, or at least the punishment restricted. Less injuries suffer also a short prescription; law presuming forgiveness, from the nature of the offence, and the silence of the party. The particular space of time sufficient to establish this presumption, must be determined by the judge, according to circumstances.

PART IV.

THE LAW OF IRELAND. CHAP. I.-OF THE LAW BEFORE THE UNION.

Ireland, until the last reign, constituted a distinct, though a dependent and subordinate kingdom. It was entitled the dominion, or lordship of Ireland, and the king's style was, lord of Ireland,' till the 33d year of Henry VIII. when he assumed the title of king, which is recognised by act of parliament, 35 Henry VIII. c. 3.

Scotland and England, though now one and the same kingdom, yet differ in their municipal laws. But England and Ireland, although so recently distinct kingdoms, yet in general agree

in their laws.

On the conquest of Ireland by Henry II. the laws of England were received and sworn to by the Irish nation, assembled at the council of Lismore. At the time of this conquest the Irish were governed by what they called the Brehon law, so styled from the Irish name of judges, who were denominated Brehons. But king John, in the twelfth year of his reign, went into Ire land, and carried over with him many sages of the law, and there, by his letters patent in right of the dominion of conquest, is said to have ordained and established, that Ireland should be governed by the laws of England: which letters patent Sir Edward Coke apprehends to have been there confirmed in parliament. But to this ordinance many of the Irish were averse to conform, and still stuck to their Brehon law: so that both Henry III. and Edward I. were obliged to renew the injunction; and at length, in a parliament holden at Kilkenny, 40 Edw. III., under Lionel, duke of Clarence, the then lieutenant of Ireland, the Brehon law was formally abolished, it being unanimously declared to be indeed no law, but a lewd custom crept in of later times. And yet, even in the reign of queen Elizabeth, the wild natives still kept and preserved their Brehon law; which is described to have been a rule of right unwritten, but delivered by tradition from one to another, in which oftentimes there appeared great show of equity in determining the right between party and party, but in many things repugnant quite both to God's law, and man's. The latter part of this character is alone ascribed to it, by the laws before cited of Edward I. and his grandson. But as Ireland was a distinct dominion, and had parliaments of its own, it is to be observed, that though the immemorial customs, or common law of England, were made the rule of justice in Ireland also, yet no acts of the English parliament, since the 12th of king John, extended into that kingdom; unless they were specially named, or included under general words, such as, within any of the king's dominions.' And this is particularly expressed, and the reason

given in the year books: a tax granted by the parliament of England shall not bind those of Ireland, because they are not summoned to our parliament;' and again, Ireland bath a parliament of its own, and maketh and altereth laws; and our statutes do not bind them, because they do not send knights to our parliament: but their persons are the king's subjects, like as the inhabitants of Calais, Gascoigny, and Guienne, while they continued under the king's subjection.' The general run of laws, enacted by the superior state, are supposed to be calculated for its own internal government, and do not extend to its distant dependent countries; which, bearing no part in the legislature, are not therefore in its ordinary and daily contemplation. But when the sovereign legislative power sees it necessary to extend its care to any of its subordinate dominions, and mentions them expressly by name, or includes them under general words, there can be no doubt but then they are bound by its laws.

The Irish nation, being formerly excluded from the benefit of the English statutes, were deprived of many excellent improvements of the common law: and, the measure of justice in both kingdoms becoming thence no longer uniform, it was enacted, that all acts of parliament, before made in England, should be of force within the realm of Ireland. But, by the same rule that no laws made in England were anciently binding in Ireland, it followed that no acts of the English parliament since the 10 Henry VII. bound the people of Ireland, unless specially named or included under general words. On the other hand, it was equally clear that where Ireland was particularly named, or included under general words, they were bound by such acts of parliament.

By a subsequent statute, 6 Geo. I. c. 5, it is declared, that the kingdom of Ireland ought to be subordinate to, and dependent upon, the imperial crown of Great Britain, as being inseparably united thereto; and that the king's majesty, with the consent of the lords and commons of Great Britain in parliament, assembled, has power to make laws to bind the people of Ireland. Thus we see how extensively the laws of Ireland communicate with those of England; and indeed such communication is highly necessary, as the ultimate resort from the courts of justice in Ireland is, as in Wales, to those in England; a writ of error (in the nature of an appeal) lying from the king's bench in England, as the appeal from the chancery in Ireland lies immediately to the house of lords here; it being expressly declared, by the same statute, 6 Geo. I. c. 5, that the peers of Ireland have no jurisdiction to affirm or reverse any judgments or decrees whatsoever. The propriety, and even necessity, in all inferior dominions, of this constitution, that, though justice be in general administered by courts of their own, yet the appeal in the last resort ought to be to the courts of the superior state,' is founded upon these two reasons, 1. Because otherwise the law, appointed or permitted to such inferior dominions, might be insensibly changed within itself without the assent of the superior. 2. Because otherwise judgments might

be given to the disadvantage or diminution of the superiority; or to make the dependence to be only on the person of the king, and not on the crown of England.

But this act of 6 Geo. I. c. 5 was afterwards repealed in the British parliament by the statute 22 Geo. III. c. 53. The former act, however, being considered as merely declaratory of the previous law, the repeal produced no other effect than to make the law somewhat less clear than the declaratory act had made it. Afterwards, by the 23 Geo. III. c. 28, it was declared that the people of Ireland should in all cases whatever be bound only by laws enacted by his majesty and the parliament of that kingdom; and the right claimed by them to have all actions and suits instituted in that kingdom decided in his majesty's courts there finally, and without appeal thence, was established and ascertained, as it was then said, for ever.' And it was declared, that such decisions were at no time to be questioned or questionable: and all writs of error and appeals in the English courts were declared to be null and void.

CHAP. II.-OF THE LAW SINCE THE UNION. 1. Of the state and united parliament.-By the articles of the union, 39 and 40 Geo. III., it is declared that the kingdoms of Great Britain and Ireland shall on the 1st day of January, 1801, and for ever after, be united into one kingdom, by the name of the United Kingdom of Great Britain and Ireland; and that the royal style and titles of the imperial crown, and the ensigns, armorial flags, and banners, shall be such as should be appointed by his majesty's royal proclamation. That the succession to the imperial crown shall continue settled in the same manner as the succession to the crown of Great Britain and Ireland stood before limited. That there shall be one parliament, styled the parliament of the united kingdom of Great Britain and Ireland. That four lords spiritual of Ireland, by rotation of sessions, namely one of the four archbishops and three of the eighteen bishops, and twenty-eight lords temporal of Ireland, elected for life by the peers of Ireland, shall sit in the house of lords; and 100 commoners, two for each county, two for the city of Dublin, and two for the city of Cork, one for Trinity College, and one for each of the thirty-one most considerable cities, towns, and boroughs, shall be the number to sit in the house of commons on the part of Ireland.

2. Of peers and commoners.-Of peers.-The act of union also declares, that questions respecting the rotation or election of the spiritual or temporal peers, shall be decided by the house of lords; and in the case of an equality of votes in the election of a temporal peer, the clerk of the parliament shall determine the election by drawing one of the names from a glass. A peer of Ireland, not elected one of the twenty-eight, may sit in the house of commons; but, whilst he continues a member of the house of commons, he shall not be entitled to the privilege of peerage, nor capable of being elected one of the twenty-eight, nor of voting at such election, and

he may be sued and indicted for any offence as a commoner. As often as three of the peerages of Ireland, existing at the time of the union, shall become extinct, the king may create one peer of Ireland; and when the peers of Ireland are reduced to 100 by extinction, or otherwise, exclusive of those who shall hold any peerage of Great Britain subsisting at the time of the union, or created of the united kingdom since the union, the king may then create one peer of Ireland for every peerage that becomes extinct, or as often as any one of them is created a peer of the united kingdom; so that the king may always keep up the number of 100 Irish peers, over and above those who have an hereditary seat in the house of lords.

The lords of parliament on the part of Ireland, spiritual and temporal, sitting in the house of lords, have the same rights and privileges respectively as the peers of Great Britain; and the lords spiritual and temporal of Ireland have rank and precedency next, and immediately after, all the persons holding peerages of the like order and degree in Great Britain, subsisting at the time of the union; and all peerages thereafter created of Ireland, or of the united kingdom, of the same degree, have precedency according to the dates of their creations; and the peers of Ireland, except those who are members of the house of commons, have all the privileges of peers as fully as the peers of Great Britain; the right and privileges of sitting in the house of lords, and upon the trial of peers, only excepted.

An Irish peer is now entitled to every privilege, except that of sitting in the house of lords; unless he chooses to waive it, in order to sit in the house of commons; and, therefore, Irish peers, who are not members of the house of commons, are entitled to the letters missive from the court of chancery, when a bill is filed against them.

Of the commons.-Questions respecting the election of the members of the house of commons returned for Ireland' are to be tried in the same manner as questions respecting the elections for places in Great Britain, subject to such particular regulations as the parliament afterwards shall deem expedient. The qualifications by property of the representatives in Ireland are declared the same respectively as those for counties, cities, and boroughs in England, unless some other provision be afterwards made. And it was declared that, until an act should be passed in the parliament of the united kingdom, providing in what cases persons, holding offices and places of profit under the crown of Ireland, should be incapable of sitting in the house of commons, not more than twenty such persons should be capable of sitting; and, if more than twenty such persons should be returned from Ireland, then the seats of those above twenty should be vacated who have last accepted their offices or places.

The following are the cities, towns, and boroughs, which are entitled each to send one representative to sit in the house of commons. These are exclusive of the several counties, as well as of the cities of Dublin and Cork, and of Trinity College :

3. Of Protestants and Roman Catholics.-The churches of England and Ireland are declared by the union to be united in one Protestant episcopal church, to be called the united church of England and Ireland, according to the doctrine, worship, discipline, and government of the church of England.

The laws, so far as regard the Protestant church, have been stated in the former parts of this article, and need not here be repeated.

Though the laws relating to Roman Catholics apply to all parts of the united kingdom, yet we deem it appropriate to introduce them in this place, on account of their general relation and great importance to the people of Ireland.

Of the Roman Catholic Clergy, and their church observances.-The Roman Catholic clergy, notwithstanding the removal of many disabilities, are still prohibited from officiating in any place of worship having a steeple and a bell. An exception in this respect, however, has been made in favor of places of worship in Ireland. Neither can they wear the habit of their order, except in places allowed by the statute (43 Geo. III.) or in a private house, where there are not more than five persons, besides the family. A Catholic priest cannot teach in an endowed school, nor can he receive into his school the child of any Protestant parent.

No Roman Catholic can found any religious order or society bound by monastic vows, or any school or college. All uses, trusts, and dispositions of property remain still unlawful.

Formerly the Catholics in Ireland were not allowed to bury their dead in any suppressed monastery or convent, nor to bury in the burial grounds of the established churches, unless the Protestant service was celebrated by a minister of the established church. But these restrictions are now removed (5 Geo. IV. c. 25), and Catholics may be buried in suppressed religious houses, or in Protestant church-yards, according to the Catholic ceremonial.

Catholics, having taken the oaths prescribed by the statutes 31 and 43 Geo. III., are not liable to prosecution for attending or performing mass, or other ceremonies of the church of Rome. But the place must be certified to the sessions, and the minister's name registered. The Catholic clergy are exempted from serving on juries and parochial offices.

Of the Roman Catholic laity.-Roman Ca

But

For twenty years from the union, i. e. until 1st of January, 1821, certain manufactured articles, viz. apparel, cabinet-ware, pottery, sadlery, &c., were subjected to a duty of £10 per cent, Salt, hops, coals, calicoes, and muslins, &c., to certain duties specified. Articles, the growth, produce, or manufacture of either country, subject to internal duty, or to duty on the materials of which they are composed, are made subject, by certain schedules in the acts, to the countervailing duties there specified. And it is provided that all articles subject to such internal duty, shall from time to time be subjected on their importation into each country respectively, from the other, to such duty as shall be sufficient to countervail such internal duty in the country from which they are exported; and that, upon the export of the like articles from one country to the other, a drawback shall be given equal in amount to the countervailing duty payable on such articles, if they had been imported into the country whence they are exported. All articles, the growth, produce, or manufacture of either country, when exported through the other, are made subject to the like charges, as on exportation directly from their own country.

All duty on the import of foreign or colonial articles into either country, shall, on their export to the other, be drawn back; and this is confirmed by 59 Gea. III. c. 52, § 8, and c. 83, § 9.

By statutes 55 Geo. III. c. 83, 59 Geo. III. c. 52, and 83, foreign or colonial goods, imported into Great Britain or Ireland from each other, shall pay such duties as on their first importation, according as they were imported either by British or foreign ships, or directly or not directly from the place of their growth; and for this purpose the clearances on the exportation