« 上一頁繼續 »
It is a rule of Scottish evidence, that the prisoner can only be convicted on the testimony of two witnesses, or of one witness, supported by such a chain of circumstantial evidence, as is obviously equal in amount to the evidence of another. In purely circumstantial evidence, a much clearer chain of circumstances is requisite to convict in Scotland, than is considered essential in England.
On the conclusion of the evidence on both sides, the jury are addressed by the crown counsel, and also by the counsel for the prisoner, who is always entitled to the last word. The prosecutor is never allowed to reply; but whether in arguing points of law to the judge, or matter of evidence to the jury, the prisoner's counsel is heard last in defence, which gives him an immense advantage, and the legal subtilties of his counsel frequently so embarrass the minds of the jury, as induces them to return a verdict of NOT PROVEN. If the jury cannot agree on their verdict before the court adjourns, their verdict, which is usually oral, must be reduced to writing, and delivered to the court sealed, and no explanation or amendment can be admitted after it is opened. And if it does not in every respect tally with the indictment, the whole proceedings are null, and the prisoner entitled to an acquittal; and in practice this occurs so frequently, that a written verdict is considered by the bar as affording no inconsiderable chance of a technical error, and consequently of the prisoner's escape. But whether the prisoner escape by this technical informality, or be duly acquitted, the benefit is the same to him: he can never be again tried or imprisoned for the same offence, not even by an alteration in the mode or name of charging the offence.*
Previous to moving for sentence, the king's advocate has the privilege of "restricting the libel," to any punishment short of death, or of entering a writing upon the record, which disables the judge from pronouncing a capital sentence. This important privilege is not confined to the lord advocate and his deputies, but is enjoyed also by private prosecutors, when pursuing with the advocate's concourse. It is thought that this necessary and important power is most appropriately intrusted to the king's advocate, whose knowledge of the case is more minute and circumstantial than that of the presiding judge-is acquainted with the comparative atrocity of all the cases from the same district-with whose duties, as acting for the crown, this power seems to be more consonant,—and who holds a situation more amenable to the bar of public opinion, and against whom public censure or complaint may more fearlessly be directed. This is a power which can only be exercised in favour of the prisoner; it can only be abused on the side of mercy, but cannot become an instrument of oppression.
In practice, however, many important cases occur, in which, though there may be reason to hope that the life of the prisoner will ultimately be saved, the lord advocate feels that it is beyond the proper line of his duty to restrict the libel, or when he feels that the act of mercy would come with more grace from the crown. In which case the royal mercy is still open to the unfortunate criminal; and in such case the presiding judge never fails to transmit such an account of the trial as ensures a conditional pardon. From the extent to which the lord advocate carries this power of restricting the libel, sentence of death is seldom pronounced without its being carried into execution. And accordingly the effect of a sentence of death on the audience, and the criminals themselves, is greater than those accustomed to the practice of other countries would imagine. Nevertheless, there are not, on an average, more than eight or ten persons executed annually in the whole kingdom.
It has recently been enacted,* that no capital sentence shall be carried into execution in less than fifteen days from its date on the south side of the Forth, or twenty days if on the north side of that river; which affords time for the wretched criminal to make his peace with God, whose laws he has violated; and instances frequently occur, in which the prisoner, from the opportunity afforded him during that melancholy interval of collecting evidence in support of his petition for the royal mercy, is saved from an ignominious death, from which he would have no other chance of escape.
In Scotland, prisoners have the power of forcing on their trials; and consequently shortening the duration of their confinement. When committed to gaol, the act of 1701, which is the Scottish Habeas Corpus act, ordains that he shall be furnished with a copy of the warrant for his being committed, and the petition on which it was granted. Which documents acquaint him with his accuser; the grounds of the charge preferred against him; and, besides, the means of establishing his innocence. But if he is desirous of forcing on his trial after being committed, the same statute entitles him to take out letters of intimation against both his accuser and the lord advocate. The purport of these letters is to demand that his trial shall take place within the period fixed by the act of 1701; under certification, that if it be not done, he shall be set at liberty. This proceeding costs about two guineas, but is seldom exacted from indigent prisoners. On the execution of these letters, the lord advocate is obliged to indict the prisoner within sixty days, and to bring the trial to a conclusion within forty days thereafter. This obliges the trial to be conducted at Edinburgh, in the intervals of the circuits. If the lord advocate neglect to serve the indictment at the expiration of the sixty, or the trial be not
* 1 Wil. 1V., c. 37.
concluded before the expiration of the hundred days, then the prisoner must instantly be set at liberty, under the penalties of wrongous imprisonment to the party. These the act 1701 declares to be, for a nobleman, £100 Scots; for a landed gentleman, £66:13:4d.; for a burgess, or other gentleman, £33:6: 8d.; and for inferior persons, £6: 13: 4d., for each day that he is wrongfully detained. The magistrate or gaoler who fail instantly to obey the provisions of the act, subject themselves to the above penalties. Having in this manner obtained his liberty, the prisoner can no longer be apprehended by any magistrate's warrant, and can only be again imprisoned upon criminal letters issuing from the high court of justiciary, and especially delivered to himself. These letters contain a full indictment, with a list of jury and witnesses; and the statute is express, that unless the object of these criminal letters is brought to trial within forty days after his apprehension, he shall be at liberty, and be for ever free from all prosecution for the offence, at the instance of the king's advocate, or any other party. If the prisoner has not availed himself of the provisions of the act 1701, the lord advocate, or any of his deputies may, on the trial, move the court to desert the diet, pro loco et tempore, that is, to postpone the trial to a subsequent day. On sufficient cause shown, such as the absence of a material witness, the court will grant the indulgence, and recommit the prisoner; and on a similar application, and for similar cause shown, will allow the prisoner the same indulgence. The court shows a laudable jealousy of the lord advocate's motives, and on the least indication of oppression will compel him to proceed with the trial; and in default of his doing so, will desert the diet simpliciter against the prisoner, and ordain him to be set at liberty.
The lord advocate cannot imprison any person at his own discretion, or detain him in prison till he obtain his liberation under the act 1701. He has no power, as lord advocate, to imprison any person whatever. He can only present a petition to a magistrate, praying for a warrant of commitment; a power which he shares with every individual in the kingdom; and the committal, in the first instance, can only be for examination; and if the prisoner is detained under that warrant more than a reasonable time, say eight or ten days, both the magistrate and private informer are liable in damages. After examination, the magistrate can alone commit the prisoner for trial; and if he should do so without sufficient reason, he acts at his highest peril, and subjects himself in damages to the injured party, whether the application for imprisonment was made by a private prosecutor, the procurator-fiscal, or the lord advocate.* It has also been decided, that a prosecution cannot be suspended over the head of a pannel for an indefinite time; and it is a mistake to imagine that the act 1701 affords no
Hume on Crimes-Alison's Practice of the Criminal Law of Scotland.
means of forcing on a trial, except to those who are actually in prison. If he has once been committed to stand trial, he becomes entitled to the whole benefit of the act of parliament, of which he cannot be deprived, either by finding bail, or by the prosecutor consenting to his liberation.
Such is a brief outline of the law and practice of Scotland, and of the powers of the lord advocate,-powers almost unlimited. He represents the king's person; he wields all the power and prerogatives of the crown, without any other control than that of public opinion; he is the minister of the crown for Scotland, and the greatest personage in the kingdom, and in some respects superior to the court before which he pleads, having the gentle prerogative of mercy within his own breast, by the power of "restricting the libel," a power which the court does not possess, in such cases where, from his intimate knowledge of circumstances, he judges it proper to save the prisoner from the penalty of death:
Notwithstanding such transcendent powers, there are scarcely any instances on record, of any lord advocate having abused them for the purposes of cruelty or oppression, but on the contrary, this peculiar prerogative has always been exerted on the side of mercy.*
LORD LIEUTENANT AND PARLIAMENT OF IRELAND.
It is matter of dispute whether Ireland became subject to the crown of England by cession or by conquest; perhaps in reality by both however, since the armed interference of Henry II., the kings of England have been acknowledged as sovereigns of Ireland, and have intrusted its administration to the hands of viceroys. At first they were styled keepers or wardens of Ireland, afterwards justices or deputies, and now lord lieutenants; and in their absence, the temporary governors are called lords justices. The power of the lord lieutenants is ample and royal: they were vested with power to make war; to conclude peace; to bestow all offices and preferments, except a few; to pardon all crimes, except that of high treason; to confer the honour of knighthood; and no viceroy in Europe comes so near the state and majesty of a king, in jurisdiction, authority, train, fortune, and provision, as the lord lieutenant of Ireland.
Bell's Dictionary-Hume on Crimes-Fountainhall's Decisions-Sir Geo. M'Kenzie's Works-Alison's Practice of the Criminal Law of Scotland-Brown's SynopsisDarling's Practice-Beveridge's do.
He is assisted with a privy council formed in the same manner as that of England, consisting of the lord high chancellor, and others of the nobility, bishops, judges, and gentry. When any nobleman enters on this high office, the king's letters patent appointing him are publicly read, after which he takes a solemn oath, in a set form of words before the chancellor, when the sword, which is to be borne before him, is delivered into his hand; and then he is placed in a chair of state, being attended by the lord chancellor, the members of the privy council, the peers of the kingdom, with a king at arms, a sergeant at arms, and other officers of state.
Assemblies of the prelates, nobles, and commons, were at several times convened as colonial parliaments, or representatives of the English in Ireland; but the first which was regularly and formally assembled in Ireland was in the year 1295, in the reign of Edward I., under Sir John Wogan, the chief governor, in consequence of an invasion from Scotland under the illustrious prince Edward Bruce. Besides summoning the temporal and spiritual lords, the writs to the sheriffs directed them to return two knights for each county and each liberty, or privileged district included in a county. But their transactions clearly exhibit the incomplete character of these parliaments, as legislative bodies, at that period. First principles were acted upon in the most simple way possible, each community granting subsidies for itself. And as the counties, cities, and boroughs had then the option of electing two, three, or four representatives, it shows that their functions were confined merely to counsel; and also that the general parliament of that day was no more than a meeting called by the king for the purpose of granting him a subsidy. The word parliament, in the common acceptance, meant the aula regis, or king's high court of justice, where his ordinances and decrees, which are now called statutes, were enrolled, and consisted of his greater barons, including the archbishops, bishops, and such of the abbots and priors, as possessed baronial authority in their respective liberties.*
An entry in the Black Book of the church of the Holy Trinity, Dublin, of the year 1297, shows that the component parts of that parliament consisted of archbishops, bishops, abbots, and priors," whose presence seemed to be necessary," earls, and the rest of the optimates of the land, that is, two knights elected in county court, summoned by the sheriffs, and two knights elected in the courts of the various liberties, summoned by their seneschals; but no writs were directed to the cities and boroughs. From the reign of Edward II. till that of Henry VI., there are no acts of parliament recorded in the statute books; but it appears that parliaments were held in the seventh, eighth, tenth, and twenty-fifth years of his reign,
* Sir William Betham's Dignities, &c., of Parliament, i. 280.
+ Ibid. p. 261.