WRONGOUS IMPRISONMENT AND DELAYS IN TRIALS IN SCOTLAND.

HC Deb 05 May 1825 vol 13 cc386-418

Mr. J. P. Grant

rose, pursuant to notice, and spoke as follows:*

Sir, I can assure the House, that there is no person, whom I have the honour to address, more sensible than I am of the great gravity and importance of the question, which I have ventured to bring under its notice. When I say, that it is no less than an entire revision of the law of Scotland, in regard to the securing the personal liberty of the subject, I need not add, that I approach it with some anxiety.

This liberty rests at present on an act passed in the parliament of Scotland, in the year 1701, against what, in the law lan- *From the original edition printed for J. Ridgway, Piccadilly. guage of that country, is called Wrongous Imprisonment; an act which has been styled the habeas corpus act of Scotland,—with what propriety, will appear before I sit down. The circumstances under which this act was passed are sufficiently known. —The failure of the favourite project of the Scots nation at Darien, and several circumstances which had occurred in the internal government of Scotland, where it was the misfortune of king William to be but indifferently served, had excited considerable discontents in that country. Among the grievances which it had reason to complain of, the total insecurity of the liberty of the subject, under the existing laws, was one of the greatest and most striking. To allay these discontents, a particular attention was promised, on the part of the government, to all practicable measures for advancing the prosperity of that country, and preventing acts of oppression; and among these, the granting of a habeas corpus act was held out as one of the most immediate and considerable.

Accordingly, the act of 1701 was introduced. It is spoken of, as on a par with the English law of habeas corpus, by Burnett and by all subsequent historians; but it is doubtful whether it was drawn in perfect good faith. There is a story told of the learned person who was employed to draw it, that he was far from friendly to the measure; and that he spoke of the act, when passed, as one of which he gave them joy who wanted it, if they could contrive to carry it into execution. I do not know what truth there is in this story; but if he really intended to draw up an act, which should be wholly uncertain in its interpretation, and ineffectual to its purpose, he could not have succeeded better than in the act which it is my wish now to alter and amend.

Sir, I am aware that I stand in need of an apology, for having ventured to undertake so important, and, apparently, so large and difficult a measure, as the supplying the defects and correcting the errors of this law; and it is matter of the most sincere regret to me, that it is not in the hands of a person of more authority to command the attention of the House, of greater knowledge to propose suitable remedies, and of greater talents to illustrate and enforce them. I beg to be understood as not saying this by way of an effectual disabling of myself. This would be an absurd affectation on my part, and but an ill proof of my respect for the House, that I should venture to propose to it a measure of this im- portance, without believing that I am able to lay a sufficient ground for its interference, and to offer a remedy deserving of its approbation. But I sincerely feel, that the question labours under great disadvantages in my hands.

I have endeavoured to balance these by bestowing on it all the consideration in my power, and by making use of the assistance of those of my friends the most capable of affording it. I think, therefore, that the bill I hope to obtain leave to bring in, will be found to answer the purpose I intend; and I am so persuaded of the necessity that will appear for some measure of this sort, as not to be without apprehension, that before I finish what I have to say, I may be thought rather deserving of blame, with the opinions I entertain, for having so long delayed to bring forward such a measure, than for having at length ventured to do so. That I have long contemplated the necessity of a revision of this law, is most certain. On the reasons which have induced me to delay moving in it, I need not now, enter; but I may say, and I say it with a singular satisfaction, that I am much encouraged to the moving in it, now by the liberal character of the present policy of his majesty's government.

I refer not merely to the policy which has now begun to be acted on in regard to the foreign relations of the country, to the regulations of the commerce, or to the taxation and finance generally speaking; but more particularly to the attention bestowed on meliorating the administration of justice in some essential particulars. The Jurors' bill for this part of the kingdom, brought forward by the right hon. gentleman opposite, the Secretary for the Home Department,—the adoption of the measure proposed in a former session by my hon. friend the member for Ayr, regarding the choosing juries in Scotland, —The Scots Judicature bill, for a fundamental reform of the proceedings in the civil courts in that country—a measure which promises to confer on Scotland a benefit greater in its amount, more extensive in its diffusion, and more lasting in its effects, than has perhaps ever been conferred by any one law on any country,—the bill now about to be brought forward by the learned lord, greatly to his credit, for restricting the punishment of leasing-making, and sedition in Scotland,—all these things have given me great encouragement in bringing forward the present measure. I think the same liberal views, and the same wisdom, which have dictated the measures I have spoken of, entitle me to expect the support of the government to that which I am now to offer. I think, therefore, that I shall meet with the support and assistance of my right hon. and learned friend the lord advocate—of my hon. and learned friends, the attorney and solicitor-general,—and of the right hon. gentlemen opposite. My hon. and learned friends have had recent opportunities, in cases which have occurred in the House of Lords, to consider the act which I propose to amend, and to see its defects; and I beg to assure them, and the learned lord, that, having no object but to correct a serious evil, and to render the law I am to propose as perfect as possible, I shall receive, not only with candour, but with gratitude, whatever suggestions or objections may be offered on any parts of it.

The objects which every man must have in view, in a law to regulate the imprisonment of persons accused of crimes, are, first, To protect the liberty of the subject, and secondly, To insure the detection and punishment of crimes.—Of these objects, no doubt the first is paramount; since the sole use and purpose of all criminal law being to prevent the commission of wrong, it were a manifest absurdity to render it the means of committing greater wrong than any which a private individual could inflict. It is strange how apt legislators are to fall into an error of this kind. In their zeal to repress crimes, they forget that the intention of criminal law is, to afford security, and to do away with the necessity of a recourse to private means of defence against injury. But it were greatly better to leave men to their private means of defence against private wrongs, than to substitute wrongs inflicted by the public law, against which private means are wholly unable to contend.

Keeping this, however, in view, I can assure my hon. and learned friend, that I am as much alive as he can be to the careful providing of sufficient means for the detection of offenders, and for the due course of justice in the investigation of crimes, without which liberty itself would be comparatively of little value. I am satisfied that, in the measure I have to propose, I have made ample provision for the duly securing the persons of those justly suspected of crimes, and for a due inquiry into their guilt. I am only afraid, that I have left a latitude of imprisonment greater than is strictly necessary for this purpose. I am quite sure that I have not reduced it below what any reasonable man, intrusted with the administration of criminal justice, can desire.

Sir, it is not my intention to trench on, or interfere with, the powers of the lord Advocate; at least so far as he can exercise them without the intervention of another magistrate. It may be thought by some that I might have gone further; but this forms no part of my plan. There may be defects in the constitution of this great office; but it is one which enters deep into the administration of justice in Scotland. The lord Advocate is a most useful and important officer; his control over prosecutions lies at the foundation of the structure of Scots criminal law; and, great as his powers are, I think it will be found, that the abuses complained of do not grow properly or necessarily out of the powers of this officer. My object is not any general and sweeping reformation; it is a much more humble one. I take the principles of the law as I find them; I leave the office of the public prosecutor as it is; I adopt and preserve the present act, 1701, wherever it is right, and sufficient, and intelligible. I confine myself to the correcting it where it is wrong, the extending it where it is defective, and the clearing it where it is doubtful.

I propose to increase the responsibility of magistrates in committing persons to gaol, and to define it more accurately. I mean to compel them to inquire into the grounds of accusation, and to judge of the reasonableness of the suspicion alleged. I enlarge the powers of the supreme criminal judges to liberate persons imprisoned, or to admit them to bail. I leave the amount of bail, and the means of applying for it, in general cases, as they stand. I decide doubts which have arisen in the construction of the law. I place the poor and the ignorant, who are accused of crimes, on a footing, as far as may be, with the rich and the well-advised, in regard to their imprisonment and the delay of trial. The only power I abridge, is that of magistrates to commit without examination and responsibility. The only power I enlarge, is that of the judges to protect the liberty of the subject. The chief alteration I propose is, to put the poor and the unprotected on a level with the opulent and the well-informed, where a search into crimes they are accused of is concerned. These things will be admitted to be desirable, and I do not mean to deny that they are considerable; but they are less difficult to accomplish than they appear. The act, which I propose to amend, was passed a hundred and twenty-four years ago; and every possible question, which can arise on its construction and out of its defects, has occurred in that time, and is recorded in the proceedings of the court of Justiciary. Unfortunately, they have not been decided when they occurred, the prosecution having been generally thrown up by the lord Advocate, to avoid a decision. But we have the questions themselves preserved, and brought to our notice, in the books which treat of the criminal law. On the other hand, we have before us the law and practice of England in similar cases; and it is not too much to say, that, of all parts of the law of England, that which relates to the protecting the liberty of the subject is the most perfect and admirable. Thus, we have the evils presented to us in detail, and an example of the modes of prevention and cure. The undertaking, therefore, is not one of such extreme difficulty; and, if I shall have accomplished my purpose, the merit will be inconsiderable.

Sir, a liberal adoption of neighbouring institutions, so that they be judiciously fitted to the spirit and general character of the law of the country which adopts them, is necessary to the perfecting any system of law. This has been in all ages the practice of the wisest nations. But it is nothing less than an absurdity, that two parts of the same nation should live under different laws as to personal liberty—one much less perfect than the other. There is much, very much of the Scots law, as to the trial of crimes, and as to punishments, which is admirable; and much in the preliminary forms of proceeding, sufficiently good. What is well known in practice is always best done, and errors committed in the doing it are the most easily detected. Established usage, therefore, is always to be preserved where it is possible; and whatever of new proceedings is brought in, ought to be carefully suited to the genius of ancient institutions, assimilated to accustomed forms, and received in the true spirit of domestic adoption. No nation, however, need be ashamed to copy from the English law its provisions for personal liberty, which are probably as near perfection as human institutions can approach. As I have no reason to believe, that my motion for leave to bring in this bill will be opposed, and as the statement I am to make is such as will not be contradicted, it is unnecessary for me to occupy the time of the House in going at length into the authorities which justify that statement; and I shall therefore content myself with describing generally the defects of the Scots law, as it now stands in the respects in question.

By this law, as it now prevails in daily practice, warrants for apprehending persons accused or suspected of offences, are granted without taking the oath of the informer—and, it may be, without examining him. Warrants of commitment for trial are usually—indeed, almost always—granted without taking the oath of any informer or witness. And there is no remedy after commitment, except by bail in bailable crimes; or, where there is no bail, by forcing on the trial by the means afforded by the act of 1701, now under consideration.

By this act, as it has been held in practice, though it has never been so decided, a hundred days, and, wherever the prosecutor so chooses, a hundred and forty days must elapse, before the imprisonment is terminated, or the trial can be forced on; though the prisoner be never so well advised, and actively served. If he be without this advice, and have not the means or the resolution to take the steps prescribed by the act, there is no necessary termination to his imprisonment. He has no redress against the magistrate or the public prosecutor, unless he can prove corruption or malice; and there is seldom a private prosecutor, so that there is not even the restraint of a fear of expense on groundless accusations. He, who would be the prosecutor in England, is the informer in Scotland. He must sign his information, so that he is always known, and he may be liable in damages. But he may be a vagabond or a pauper, as in James Murray Borthwick's case, which was brought before this House two sessions ago;* and there is no instance of a criminal prosecution in such a case.

It is obvious from this, that the law of Scotland wants all the most essential parts * The private prosecutor in this case, whenever an action of damages was brought against him, sued out a process of cessio bonorum, as being utterly insolvent. of the law of England in these respects. It wants the common guards against unreasonable o incautious commitments. It wants the most valuable parts of the process by a writ of habeas corpus. And it wants gaol deliveries altogether. It is my object to supply these defects.

The purposes of the law, in regard to imprisonment and trial for crimes, as I have already said, ought obviously to be these:—to secure the appearance of the accused, so that be may undergo his trial —and to prevent the means used for this end from becoming an engine of oppression and wrong. The appearance of the accused is to be secured either by imprisonment, where that is necessary, or by bail, where this is sufficient; and the preventing these means from becoming an engine of oppression, involves three considerations:—1. The providing against improper and unnecessary imprisonment.— 2. The regulating bail.—3. The preventing a delay of trial.

Now, there are two things necessary to the providing against improper imprisonment—the preventing the wrong from being committed; and the affording speedy means of enlargement, if it shall be committed. An improper imprisonment may take place in different ways.

First; A man may be taken into custody and imprisoned by warrant of a magistrate, for examination, before he is committed for trial. That this should be done frivolously, or without a just and sufficient ground of suspicion and reason for inquiry, is a great hardship. To an innocent man it is a mighty injury, and to the law it is a manifest discredit. But being so apprehended, on whatever grounds, it is most necessary that the prisoner should not be detained longer than is required to ascertain, with the least possible delay, whether he ought to be committed for trial or not; yet, in these respects, the law of Scotland is entirely defective.

1. The warrant for apprehending, as I have said, is always granted without the informer being put on oath. It is not even necessary that the information be in writing, though this is usual. It very commonly proceeds on the petition of the Procurator Fiscal, the public prosecutor of the inferior jurisdictions,—a petty officer appointed by sheriffs, by justices of the peace, or by the magistrates of burghs, within their districts. He becomes the channel of communication be- tween the informer and the magistrate, upon whose application the warrant for apprehending is always granted, without further inquiry into the nature of the information he acts on; although he himself never administers an oath to his informer, and usually takes the story as he gets it, inserting no details of it in his petition to the magistrate.*

2. No time is limited by law for the detention of a prisoner in custody for examination, or further examination, before committing or discharging him. The act 1701 has been found not to apply to this sort of imprisonment at all; and there is no rule of the common law.† * "In regard to the grounds and form of the warrant to apprehend, it may be fitting in some cases, and this in England seems to be the usual course of practice, that the warrant be granted after examination only of the informer upon oath; but this is not invariably, nor even ordinarily observed with us, in proceeding on the information even of a private individual; and, in cases of complaint, at the instance of the Procurator Fiscal, or other public officer, who could only swear to his belief of the information which has been brought him, it has never been our custom to make use of any such precaution. It is further to be noted, that although it be very proper, where the circumstances of the case allow it, to support the warrant with a written petition, or examination of the party who applies for it; yet the want of this formal evidence is no wise any impeachment of the strength or virtue of the warrant, and shall neither countenance the party charged in any resistance of it, nor of itself be a ground of asking damages, if it shall be executed against him."—3 Hume, Crim. Law, 121, 122. † "With this view, if the witnesses are not attending at the time, so as to be examined without delay, it is lawful for the Magistrate to commit the prisoner to gaol, there to remain for further examination, or until a precognition shall be taken; and against a warrant of this form, he is not entitled to his relief by bail as a matter of right, though, in cases of petty crime, he is often indulged with it; for, in terms of the Act, 1701, cap. 6, that remedy applies only to a settled state of imprisonment, that which is 'for custody in order to trial,' and not to this temporary and uncertain detention."—3 Hume, 128. In the case of Fyfe against M'Laren, 29th July, 1762, where, on a charge amounting to wilful fire raising, and after a precognition had been led, a warrant was granted by the Justices of Peace of Forfarshire to incarcerate till further examination. One of the prisoners was soon thereafter liberated; and another, having applied for bail, the Justices refused his petition, but, on application to the Court Secondly; A man may be fully committed for trial by warrant of a magistrate.—In this matter the provisions and the practice of the law of Scotland are far from consistent with the due security of the liberty of the subject.

1. No previous examination by the magistrate, either of the informer or witnesses, or of the person accused, is necessary, though it is usual in commitments by the ordinary magistrates, and said to be advisable.* of Justiciary he was liberated, after being twenty-four days in prison. Both the parties afterwards commenced an action of wrongous imprisonment, on the Act 1701, and also upon the common law, against the party who had applied for the warrant, and the Justices of Peace who granted it; but the defenders were assoilzied (acquitted): and from the report of the case, it appears, that so far as the action was laid on the Act 1701, the decision proceeded on the ground that the commitment was till further examination. The same point occurred, and was fully considered, in the case already mentioned of Andrew against Murdoch, 20th June, 1806, where, although a considerable difference of opinion occurred among the Judges with regard to the fact, whether the warrant on which the commitment proceeded was to be held as a warrant of commitment till further examination, or in order to trial; a great majority of the Court held, the former did not fall under the provisions of the Act 1701."—Burnet's Crim. Law, p. 250. The late lord Newton, however, declared himself decidedly of a different opinion;—upon this ground, that otherwise the statute would cease to afford any real security to the lieges, since every commitment might be put on the footing of its being for examination. And he further mentioned, that he had access to know, that the same construction of the Statute was adopted by the late Mr. Crosbie."— Hutchinson's Just. of Peace, p. 481, Note. * "It is not, however, by any means to be understood respecting the Magistrate, that it is unlawful for him, de plano, to give order for commitment (i. e. for trial) in his warrant to apprehend, in cases where he is already possessed of strong grounds of suspicion against the prisoner, or where, on any other account, he cannot previously be examined. And, indeed, this is the ordinary tenor of warrants, obtained from the Lords of Justiciary, to whose office it does not pertain to examine the prisoner, or to set on foot a precognition concerning his guilt."—3 Hume, p. 126. The application for this purpose (commitment for trial) is made, for the most part, in a petition, or other complaint, signed by the Procurator Fiscal, or a party; and praying for commitment of the person, or persons 2. No oath is usually administered, either to the informer or to any witness, before fully committing the prisoner for trial, even where a previous examination, called a precognition, is entered into; but he is consigned to a gaol, perhaps for months, and to the ignominy of a trial, on the declarations of witnesses made and taken down behind his back, unsanctioned by any solemnity, and unrestrained by any fear of prosecution. Indeed, when the putting the witnesses on oath is recommended, it proceeds from a jealousy, not of unduly imprisoning the innocent, but of, by chance, suffering one who is guilty, to escape.* named, as at his suit or instance. There seems, however, to be nothing in either the words or the spirit of the statute, that should confine the magistrate to the use of this sort of information only, which cannot always be obtained at the time. In itself the affidavit, signed declaration, or even letter of the party concerned, or having cause of knowledge, if it properly describe the fact, and be duly referred to in the warrant, seems to be an equally sufficient ground for commitment; and, indeed, unless he can show cause for distrusting it, the Magistrate could not safely decline to commit upon a charge of this description. In those instances where the Procurator Fiscal applies, his information will protect the Magistrate, who commits in pursuance of it, so far as to take the case from under the letter of the statute 1701. And in any complaint which may nevertheless be made against that officer, or against him and the magistrate jointly, for rash, partial, or malicious proceedings, they have to defend themselves upon the ground of the private information lodged with them."—3 Hume, 136. The most complete and perfect information, so far as regards the magistrate, is obtained by a regular precognition, which contains the signed declarations of the persons who have been examined, and points out the person accused, or some other individual, as guilty of the crime alleged. But, though a precognition ought generally to precede a warrant of commitment for trial, this is not necessary, nor is it always observed. The first information, even by a private party, may be so complete and satisfactory to the Magistrate, as to warrant an immediate commitment in order to trial."—Burnett, 320. Though it is not the of ordinary course of proceeding, yet still, in those cases, wherein, from popular favour towards the prisoner, or towards the offence, the truth cannot otherwise be obtained, it is lawful, and has often been practised, to put the witnesses upon their oath; which, if they shall refuse, they are, for this contempt, liable to be imprisoned. To obviate, also, any danger of improper prac- This, however, cannot be said to have been the law, whatever may have been the practice of Scotland; for, by an act passed in the reign of Charles 2nd, in the year 1661, intituled, "Commission and Instructions to the Justices of Peace, and Constables," it is provided, that "at what time, and whensoever one shall accuse another person or persons, to be guilty of treason, murder, or other felony, blasphemy, incest, or any other heinous crimes; in such cases, the said Justice or Justices, shall forthwith cause such person, or persons, to be apprehended; and, after inquiry made in the cause, the said Justice, or Justices, if they find cause, shall commit the offender to prison, or take sufficient bail, if the case by the law be bailable; and shall take the information of the party accusing upon oath, and bind him to prosecute; and shall take the testimony, or deposition, of the witnesses likewise upon oath, and bind them to give evidence, and shall also take the examination of the party accused;—all which recognizances, informations, depositions, and examinations, the said Justice, or Justices, shall certify to the next quarter session, assizes, or criminal court, respectively, to the end, that Justice may proceed against them according to law." This is the only law passed in Scotland for protecting the subject from frivolous and vexatious committals; but, if it was ever observed, it has long since ceased to be so; and, in its terms, it applies only to committals by justices of the peace.* tices with them, on the part of the accused, or his friends, neither he, nor any one for him, need be admitted to these proceedings. It was one of the directions given by the Court, for the taking up of dittay, 4th March, 1709. Item, That none be present with the Clerk, at the examination of the persons cited by the Sheriff, to give up dittay. At whatever period these examinations are taken, and whether in the form of oath, or otherwise, they are merely preparatory to the libel, and can never, in any shape, be made use of against the witnesses; and, indeed, they may call for them if they please, and see them cancelled before they give their evidence in the trial."—3 Hume, 129,130. * It cannot be doubted, that the spirit of this act was binding on all other magistrates who had the power of committing on accusations of crimes; and it seems difficult to hold that the precautions contained in it, to prevent frivolous committals, were repealed by implication, by the act 1701, made expressly for better securing the liberty of the subject. 3. If application be made to a judge of the court of justiciary for a warrant to apprehend one accused of a crime, no examination ever takes place before the judge who grants the warrant, but it issues at once to commit for trial—on the responsibility of the informer. If the application be made by the lord advocate, or one of his deputies, warrant is granted of course; if by a private person, with concourse of the lord advocate (i. e. with his official concurrence) it is the same; and the lord advocate cannot refuse his concourse. In practice, he leaves a written authority with the clerk of justiciary, to give his concourse to all who ask it.—But private persons, without the concourse of the lord advocate, with the concourse of the local procurator fiscal, which is obtained of course, or without it, for any thing contained in the act 1701, may apply to the justiciary for a warrant to commit on a written and signed information; and, if the crime and circumstances be relevantly stated, warrant may be granted without any examination by the judge, no investigation being within the usage of the court.*

The court has even refused to examine into the grounds of accusation, though applied to by the prisoner complaining of a grievous wrong. They are said to be bound by the statement in the written information.† * 3 Hume, 126.—It is said by Mr. Hume, (3 Hume, 132), that it is "certainly better, that the Judges, like the Assize, should enter on the trial without any previous knowledge of the case."—I cannot see much in this; but, if there were, it would result, that the judges of the court of justiciary should have no power to commit for trial; for that a man should be committed for trial without any examination by the magistrate into the probable cause, on the mere accusation in writing of any one, seems entirely inconsistent with the due administration of justice, or with any reasonable regard for the protection of the innocent. † "But, though a Magistrate may not, in every case, be justifiable, even on an ex facie information, to issue a warrant of commitment, the general rule and usage, certainly is, to look chiefly, if not solely, to the terms of the application, and the relevancy of the charge there made; and to grant the warrant, unless it appear clearly, that no proper Point of Dittay" (i. e. indictable offence) "be charged." This case underwent some discussion, in the late case of the Magistrates of Culross against sir John Henderson, 13th July, 1807, for an alleged forgery of the common seal of the burgh. After taking a precognition, a warrant 4. By the common law there is no redress against a magistrate or against a publick informer, as the lord advocate or procurator fiscal, unless malice can be proved against him: nor ought there to be. The sole redress is an action of damages against the private informer. There is no instance of such informer being indicted; and it would be difficult to do so, unless there was a conspiracy. Not being on oath, he cannot be indicted of perjury.

5. By the act 1701, nothing is requisite of commitment was applied for to the Court of Justiciary, by the Magistrates" (i. e. the corporation), "against Sir John, and David Cosine, writer in Dunfermline, on the charge of their having fabricated a seal, in imitation of the common seal of the Burgh of Culross, and appended it to a commission in favour of a person, chosen by one set of Magistrates, as a delegate, to represent them at the meeting for choosing a member of Parliament. Notice of the application having been by some means obtained, a caveat was lodged in the hands of the Clerk; and, contrary to the usual practice, answers were allowed to be given in, in which various objections were stated to the relevancy of the charge, as well as a pointed denial made of the facts on which it was grounded; the whole being intended, it was said, as a mere political manœuvre, without any serious purpose of making it the subject of after trial. On advising the petition with answers, replies, and duplies, the Court pronounced this judgment.—'Find that the fact charged, is a point of dittay, and that it is not the practice of the Court, on an application for a warrant, to take cognizance of any other matter; therefore, ordains the warrant to be granted, in common form, as craved.'"—Burnett, 322. In the case of William Murray Borthwick, the petition of the lord advocate's depute, in his lordship's name, merely set forth the allegation of a capital crime having been committed, without saying one word as to the grounds of the accusation, or the nature of the information he had obtained; and thereupon he craved warrant to commit, de plano, for trial, which was accordingly granted; and Borthwick, who had no knowledge of the proceeding whatever, was immediately apprehended, and so committed. Upon this he presented a petition to the Court of Justiciary, which was followed by answers by the advocate depute, and a judgment by the lord justice clerk. He was accordingly, kept in confinement till the 24th of April, when he was brought to the bar of the Circuit Court at Glasgow, to be tried.—But on the motion of the advocate depute the diet was deserted, pro loco et tempore, by which the trial was adjourned, and the prisoner was re-committed on a new warrant of the same Court, to justify the magistrate but a signed information.* No precise form is necessary, any writing signed being sufficient; though the charge be never so improbable; though the informer be infamous, a person unknown to the magistrate, or a vagabond without fixed abode; though the imprisonment be never so irregular or oppressive. There is no provision by this act to redress the wrong, if it have only proceeded on a signed information.

Lastly, A person may be committed to an unlawful place of confinement, or in an proceeding as before on the same allegation, without any statement of facts and circumstances, or of the nature of the information received; and he was as of course, re-committed. He had been running his letters of intimation to the lord advocate to bring on his trial meanwhile; and the forty days from his re-commitment under this new warrant having expired, he was, on the tenth of June, on his petition ordained to be liberated. But, on the same day, a new warrant of commitment for trial was granted by the lord justice clerk against him, on the petition of a private individual, the same Robert Alexander, who pretended right to the goods in question, with concourse of the lord advocate, obtained of course, though the lord advocate had declined to proceed himself in the prosecution; which petition was in the like general terms. The justiciary warrant was granted in the same manner, de plano, without investigation of any sort, or opportunity of any sort, allowed the prisoner to be heard; which if he had been, the warrant could not possibly have been granted; the application being by one partner, as alleged against another partner, accusing him of stealing what was alleged to be their joint property, and the question being, whether the partnership was dissolved, and the property truly joint or several, and consequently, whether there was a trespass. Borthwick was, however, kept in gaol till the 12th of June, when he was liberated, ex proprio motu of his new prosecutor; his trial having been first fixed for the 10th, and postponed to the 17th of June. It is obvious, that, under these decisions, and according to this practice, any person, of what character and station soever, may be kept in gaol under a charge of theft, however preposterous, without the possibility of bringing on his trial for a hundred and forty days, although the public prosecutor shall be satisfied there are no grounds for trying him, as long as persons may be found to pretend any property or right of possession, qualified or absolute in goods, which they may choose to accuse him of stealing; and so mutatis mutandis under a charge of any other crimes, which private persons may pretend a legal title to institute a criminal prosecution for. * 3 Hume, 136, Sup. Cit. irregular manner; or he may be deprived of his liberty by one having no legal authority, as by an incompetent magistrate, under colour of a legal proceeding, or by a private individual, without any such pretence.

For these cases it has been found, that the act 1701 provides no remedy; although in one case, in 1736, it is said to have been decided, that the act did apply to an unlawful imprisonment by a person not a magistrate.* * "This clause (the general clause of the act as to 'all confinements') has given rise to various questions, whether it was meant to apply, 1st, to confinements irregular, no doubt, and oppressive, but proceeding on signed informations and written warrants; 2nd, To irregular confinements, by private persons, not Magistrates, nor in authority; and, Lastly, To confinements by magistrates not for custody in order for trial, but in the way of simple arrest, or for examination. Respecting the first, the question occurred in the case of Archibald Campbell against Ramsey, a baillie of Kelso, 26th November, 1736; who had, on a signed information, but founded on a frivolous, or, at least, improbable story (viz. that he had clandestinely carried away a person of the name of M'Kenzie from his wife and family, and had prevailed on that person to abstract several of the writings of his estate), granted a warrant of imprisonment against Campbell, until he should find bail not to proceed further in the delinquency imputed to him, and to answer to the competent court for what he had already done. The defender maintained, from the preamble of the statute, that it was meant to apply merely 'to the abuse of commitments, without expressing the cause,' and had nothing further in view than to correct abuses in the form of commitments, in refusing bail, and in the modes of setting at liberty; and that the general clause here noticed was meant to apply to all these forms of written warrants and signed informations, to every sort of confinement, whether in a gaol, properly so called, or in a private house or chamber; and that the exception introduced in this very clause of confinement, consented to by the party, or inflicted after sentence (where there is no need of signed informations), shews, that such was the meaning of the clause. The pursuer, on the other hand, founded on the object and scope of the act; and that being intended to prevent wrongous imprisonment in every case, and to protect the liberty of the Subject, it ought to be applied to all irregular confinements, without exception. The court, while they were of opinion that the baillie's conduct had been illegal and oppressive, found, at the same time, that the case did not fall under the act. The second point occurred in the case of Patterson, 14th December, 1736, where the The means of enlargement which form the second thing necessary to provide against improper imprisonment are, in Scotland, entirely by the common law. Except, 1st. The imprisonment he on a warrant to commit for trial, not proceeding on a signed information; or, 2ndly, Where such warrant does not express the cause; or, 3rdly, Where the cause expressed does not amount to a crime, other than treason. But the manner of proceeding to obtain liberation, is by the incarcerator was no magistrate, and had, besides, given a mere verbal order of commitment. The defender argued, that the whole scope of the act was to correct the abuses of magistrates, judges, and other officers of the law, in the undue exercise of their authority, that having been the evil most loudly complained of; while the pursuer argued on the general expressions used in this clause, and on the preamble of the act, which declares, 'that it is the interest of the subject that the liberty of his person be duly secured' The court found, that the act did apply to the case,. and decerned for the penalties. The justice of this decision, however, may be doubted. We incline to agree with Mr. Hume, in thinking, that the statute 'relates only to acts of power and authority, and not to the masterful and lawless violence of private persons, as to which there was no need of any new or extraordinary provisions.' This interpretation is accordingly justified by what we know as to the abuses which gave rise to the enactment, as well as by the decision of the case, sir Alexander Anstruther, March and April 1720, referred to by Mr. Hume; and where, as appears from the papers in that case, the import of this general clause was fully argued."—Burnett, 384. The process for these forfeitures, or any of them (for so I construe the words, process for wrongous imprisonment in the act), is confined to the space of three years, computed from the last day of the prisoner's confinement; and to this limitation effect was given in the court of Justiciary, in the case of sir James Dunbar, in 1714, where the wrong seems not to have been a proper incarceration in any known gaol, but rather an irregular confinement of the person, in some strong room or dungeon in the tower of Aikergill, the property of sir James, who, by his authority as a baron, had shut up the pursuer there. The injury fell, therefore, under that clause of the act, which extended those provisions of the law 'to all confinements, not either consented to by the party, or inflicted by trial after sentence,' and which was intended, as I conjecture (though certainly the passage is obscure), to reach confinements of this irregular description. I think, however, it is doubtful whether the statute applies in such cases, unless the confinement be ordered by a magistrate, and be under pretence of complaint made to him, or proceeding held by common-law process of bill of liberation in all cases. The act 1701 only introduces a statutory mode of relief:—1st, By bail; 2ndly, By forcing on the trial. Of these I will speak presently.

The act does not apply, therefore, to any imprisonment by an incompetent magistrate, or by a private person, as contrary to law, or on the ground of irregularity in the manner of it: nor to any imprisonment by a magistrate for examination, or further examination, however long or oppressive:—nor to any imprisonment in modum pœnæ, however preposterous or unlawful—in its place, manner, duration, or grounds:—nor to any imprisonment for trial, however groundless, irregular, or unjust; provided, only, there have been a signed information, charging a crime; though the information set forth no facts shewing the grounds of it: and provided, also, that the warrant specifies the cause; though the cause specified be false in fact, and has never been inquired into: nor to any imprisonment on a charge of treason.* him in that capacity; for this ordinance seems to relate only to acts of power and authority, and not to the masterful and lawless violence of private persons, as to which there was no need of any new or extraordinary provisions, and which will not, therefore, be affected by the prescription of three years, and may be the ground of prosecutions in the court of Justiciary for the pains of common law. Of this description was the wrong libelled in the case of sir Alexander Anstruther and others, (March and April 1720), who were accused of carrying off, in a boat, and afterwards confining somewhere at land, certain persons who were meant to be called as witnesses against these panels, for some offence against the revenue. The libel was laid both at common law, and on that clause of the statute 1701, which has relation to confinements; and concluded, for fine, deprivation of office, and incapacity of public trust; but the court found the libel relevant generally to infer an arbitrary punishment, damages, and expenses; proceeding herein, as I take it, on the common law alone."—3 Hume, 181. * "As the magistrate must determine the degree of the offence by the letter of the law, so must he take the charge, in the ordinary case, as he finds it on the face of the commitment. But, although this be true generally, yet still it is not to be understood, that every magistrate or every informer has, therefore, the uncontrolled licence of stating the crime in his information or warrant, in such terms, and applying to it such denomination, as he pleases. Certainly, in those (it is to be hoped extraordinary) situations, where the evident The remedy by the common law for obtaining liberation from imprisonment, by the process of bill of liberation, is extremely inconvenient and defective. The proceeding is by bill, or petition, to the court of Justiciary, which contains merely an unauthenticated representation, by the prisoner, of what he alleges; unless the warrant be, ex facie, defective, in which case it speaks for itself.* This petition malice of the party, and his perversion of the facts, require such an interposition, the supreme court, upon complaint being made to them, will call for the precognition, or other grounds of the commitment, and will judge for themselves, how far the matters there appearing, if true (and at this period they must be held to be so), amount to, or warrant the sort of charge, which has been raised upon them. As the sheriff might control his fiscal on such an occasion, if he should state a mere trespass as a robbery, or magnify a common assault into a hamesucken; so the Supreme Court will control the sheriff, or other inferior magistrate, and exercise their own judgment as to the propriety and the soundness of the views on which he has proceeded. Thus James Gremin was released on bail, though committed on a charge of cursing and beating parents (a capital crime by the law of Scotland), because it appeared that the facts were not of that atrocious degree, nor related with that distinctness, which might justify the statutory and capital accusation. It is, no doubt, true on the other side, that in any instance where this comes to be a nice and critical question, or where the plea of the prisoner against the capital charge is of that kind, which seems only fit for deliberate trial in the way of debate upon the relevancy of a libel, here the charge must be held and taken in the meantime as it is written in the commitment. Let me add one observation more; that although the statute has declared the privilege of bail, with regard to all charges not affecting the life of the offender, yet it has not deprived our supreme judges of that discretion which naturally belongs to them, of extending this sort of relief to cases even of capital accusation, when they shall find reason for such an indulgence in the extraordinary circumstances of the fact. Such a trust is necessary to be reposed with them for the ends of justice, and the advancement of the public service; since otherwise a magistrate, or other person in public office, who has been constrained to kill (for instance) in the necessary performance of the duty of his station, might undergo a long confinement, and perhaps at the very season which most requires the continuance of his exertions, on a groundless charge of murder, brought by the kindred of the persons who have fallen a sacrifice to their own obstinacy in the perpetration of their crime."—3 Hume, 143. * "There is a case recorded which shews, is ordered to be served on the opposite party, and is answered by an unauthenticated statement on his part. Then counsel may be heard, without ascertaining the facts. Then, if the parties differ as to facts, there is a proof by commission. Then this proof is reported, and counsel are heard. Then may follow written arguments, in the shape of memorials, or informations, which are printed.—Thus an immense delay takes place, and all this while the prisoner remains immured.

The case of a committal for treason is, as the law stands, without any remedy, being not within any known law. It is expressly excepted from the act 1701; and by the act of queen Anne, after the Union, the law of treason is declared to be from thenceforth, in all points, the same in Scotland as in England. The remedy, therefore, in a case of imprisonment for treason, cannot be by the Scots common-law process of bill of liberation. It should seem to be, by the English common-law writ of habeas corpus; but there is no machinery for issuing this writ, so that it may run in Scotland. It comes out of the English chancery, and only issues on the fiat of a Judge of the court of King's-bench, or of the lord chancellor.

In regard to bail, which forms the second consideration in this matter, this seems to me to be sufficiently provided for, as to amount, by the 39th of the late king; which it is, therefore, not my intention to alter.—One clause in it, that relating to bail in cases of sedition, by which the that, even when the warrant is, ex facie, defective, the process of liberation has not always been considered so much of course, as one would suppose from the words of the act. There is, besides, a declaration in the act, that any warrant, granted as above, shall be void and null; which evidently implies, that the party imprisoned is entitled to be immediately, or in the speediest manner, liberated, on application to a judge. In the case of the warrant not expressing the cause, he seems entitled to be immediately liberated, without even intimation to the party concerned in the commitment, it being a defect apparent on the face of the warrant; and which, therefore, is instantly verified by the production of the warrant. Notwithstanding this, in the case of O'Neil, 19th June, 1716, who applied to be liberated on the ground of the warrant against him not expressing the particular cause, the petition was ordered to be seen by the advocate depute, and this even by a distant day; and it was only on no objection being stated by him, that the liberation was granted."—Burnett, 327, amount in these cases is left undefined, to be measured by the terms of the accusation only, I meant to have repealed; but I understand it is to be repealed by the act brought in by the lord Advocate, for limiting the punishment in cases of sedition,—an act, which I have already said, reflects great honour on him.

The defects of the law, in regard to the means afforded of compelling bail to be taken, are considerable. There is no provision for any examination by the Supreme Court into the causes or grounds, on which the warrant of commitment has issued, and on which the offence is charged, as being of the character therein stated. It has been decided, in a late case, in the courts in Scotland, that a judge of Justiciary cannot interpose, unless he is competent to try the crime: and that fraudulent bankruptcy is of this description. So that, in vacation time, there is no remedy, if a man be charged with this offence. Add to this, that the time allowed, within which bail must be taken or refused—twenty-four hours—is too short to admit of an investigation into disputed facts; and, indeed, seems to infer its exclusion: and the pains and penalties, being, in all cases an incapacity of public trust, over and above the pecuniary fine, are too high to be readily enforced.

The last consideration is, the preventing an undue delay of trial. This rests entirely on the act 1701. It provides for two cases;—a first imprisonment under a warrant of commitment for trial; and, a second imprisonment under a new warrant for the same imputed offence. I will not detain the House, by stating minutely the steps it directs; they may be seen, by reference to it. But it is necessary that I should shortly mention the objections to them. These are of two sorts:—1. The obscurity and uncertainty of the wording of the Act.—2. The defects of its provisions.

In regard to its obscurity and uncertainty, the following questions have arisen:—

1. It is provided, that the letters of intimation shall call on the prosecutor to "fix a diet for the trial within sixty days after the intimation." Now, under this clause, a question has arisen, whether the sixty days relate to the fixing, or to the diet (i. e. the day of trial), namely, whether it is sufficient to execute or serve the indictment within sixty days, the indictment containing notice of a future day for the trial; or whether the trial itself must commence within sixty days. This is a very important question; because, the limitation of time for the trial to be brought to a conclusion extending to forty days, usually held to run from the day of giving notice of trial (or executing the indictment which contains the notice), if the former construction be right, the trial may be fixed by the prosecutor for the hundredth day; if the latter, it cannot be beyond the sixtieth day; after which the prisoner is in the hands of the court, and no adjournment can take place but on cause shewn. The present practice, however, is the other way; though I know of no decision which authorises an interpretation contrary to the natural meaning of the words, if not their grammatical construction, and certainly contrary to the acknowledged rule of law to interpret doubtful passages of remedial statutes, made for the liberty of the subject, so as to advance the remedy, and as is most favourable to that liberty.* * "Now, there are more than one sense, in which we may understand the words made use of in the Act, 'to fix a diet for the trial within sixty days after the intimation.' The meaning may either be, that the prisoner shall be served with a libel, calling him to a diet of trial, which diet is within the sixty days, or it may be more favourable to the prosecutor—that within the sixty days he shall serve the prisoner with a libel, calling him to appear for trial at some future diet, no matter whether such diet be within the sixty days or not; but although, in themselves, the expressions are equivocal, yet on a complete view of the whole law, and taking the clause as to the sixty days in connexion with the clause last recited, which limits the endurance of the trial to forty days more, I think it is clear that the legislature meant to provide only this security for the prisoner, that he should not be confined for more than one hundred successive days in all; and that under this ultimate limitation, together with the special one of obliging the prosecutor to execute his libel within the first sixty days, it was meant to leave him quite at large, with respect to the diet of compearance. Indeed, it is to be observed, that the opposite construction would not in the end be of any material advantage to the prisoner, because, though the prosecutor call his libel on the sixtieth day (and by no interpretation of the statute can he be obliged to call it sooner), yet still, if he be not ready to proceed on that day, he may obtain continuations of the diet thenceforward, for reasonable causes, from time to time, until it suit him; under this limitation only, that he bring the trial to an issue within forty days more. Now, this is as great a latitude as arises under the other seemingly more favourable construction of the Act."—3 Hume, 169. 2. A second question is, supposing the limitation of sixty days to apply only to the executing the libel, whether the trial must take place and be concluded within forty days from such execution, or, the diet of trial being fixed for any day, however distant from the day of such execution, whether all that is required is, that the trial be concluded within forty days after the diet so fixed. If so, the benefit of the act may be entirely done away. This was argued in the case of M'Ewan, in 1776, but left undecided.* But it is obvious, that there is this material difference in the situation of the prisoner—that by the one construction he is at the mercy of his prosecutor for forty days after the sixty are expired by the other, he is in the hands of the Court, who are bound not to defer the trial, but on reasonable cause shewn. Again, by ordinary grammatical construction, the words sixty days refer to the words diet for the trial. Further, if this be otherwise, then is there, by the words of the Act, no limitation of time within which the diet must fall, and consequently no limitation of time within which the case must be determined by final sentence; since the limitation of forty days for final sentence, obviously, and by necessary construction, relates to the insisting in the libel when the judge shall put the same to a trial. The words of the Act are these:—"And the diet of trial being prefixed, the Magistrates of the place, &c. shall then be obliged to deliver the prisoner to a sufficient guard, that the prisoner may be sisted before the Judge competent; and his majesty's advocate, &c. shall insist in the libel, &c. the Judge put the same to a trial, and the same shall be determined by a final sentence within forty days." So that, by this construction, the prosecutor being only bound within sixty days to fix the diet, may fix a diet which shall fall on any day, however distant; the only security remaining to the prisoner, being, that after the diet has taken place, and the judge has put the libel to a trial, final sentence must be pronounced within forty days more, whenever these may expire. Accordingly, this is the next question. * "But here arises another and a still more important question. If, as already said, all that the prosecutor need do within the sixty days, be to execute his libel, is he absolutely at large as to the diet of compearance which he shall name, how distant soever? or has he allowance only for beginning and finishing his trial of forty days at most, immediately succeeding to, and connecting with the sixty. This, though a very material question, and such indeed, in my humble opinion, as tends to affect the benefit of the whole series of provisions in this part of the statute, is still an undecided one, though it occurred some years ago, and was then the subject of an argument at the bar. 3. A third question is this. It is declared by the act, that, after the lapse of sixty days without the diet being fixed, or of forty days without bringing the trial to a conclusion, the prisoner shall be dis-charged; and after that, "it shall not be lawful to put or detain him in prison for the same crime, unless there be new criminal letters (a form of indictment) raised, and duly executed against him." This was in the case of Alexander M'Ewan and Isabel Butcher, prisoners in the gaol of Perth, upon a charge of theft. On the 1st February, 1776, these persons had made intimation, in terms of the statute, to the procurator Fiscal of the county of Perth. On the 30th of the succeeding March, just as the sixty days were about to expire, they were each of them served with a libel, at the instance of the lord advocate, calling on them to take their trial at the ensuing circuit, to be held at Perth on the 25th of May. At that diet, besides other objections, it was pleaded in bar of process, that it behoved the trial to close within forty days computed from the expiration of the sixty; and that here the whole term of one hundred days had expired, before even the calling of the libel. The prosecutor maintained, that the forty days ran only from the diet of compearance on the libel, and that this he might fix earlier or later, at his pleasure. The judges on the circuit referred the case for the consideration of all their brethren, who ordered informations; and on advising these, thought it proper to direct an inquiry into the state of practice. But hereupon, the lord advocate consented that the prisoners should be dismissed, on anoint, he said, of the long confinement which they had already suffered, and the further time that must be spent in obtaining such a report. The prisoners were dismissed accordingly, but under an express reservation of the right of the lord advocate again to insist on the same plea, at the convenient season, if he should see cause. It may, however, be conjectured, from this desertion of so capital a point, that the prosecutor had not been sanguine in his expectations of success; and, certainly, there are considerations of no little weight, which may be urged against his construction of the enactment. This in particular, which some may think is of itself decisive of the whole controversy, that truly such a construction would utterly defeat the beneficent intention, and render vain and nugatory the whole, wise, and excellent provisions, of this valuable law. For to what purpose have the legislature so anxiously ordered, that the magistrate shall intimate to the informer within twenty-four hours, and the informer execute his libel within the sixty days, and the prosecutor bring the trial to an issue within forty days, if the term from which this last period is to be computed has been left entirely at the prosecutor's Now, if he be indicted and brought to trial, but the trial not finished within forty days, and he be thereupon discharged, is he subject to be of new imprisoned, on new criminal letters, in the same way as if he had been liberated for want of fixing the diet within sixty days? This involves a question of forty days' imprisonment, which may be added by the contrivance of indicting within the time, with the intention of abandoning the trial before the jury is sworn, and then re-incarcerating on new criminal letters.

Mr. Hume

thinks this not a very reasonable construction, but within the letter of the act. I think it is so, but it has never been so decided, though it is, as I understand, frequently adopted in practice* discretion, to be fixed as late as he shall choose? If this be so, as well might all the other periods have been left at his discretion too. And in truth, according to this interpretation of the law, there is no time limited for insisting (a phrase which is repeatedly made use of in the statute), since the prosecutor may refrain from beginning to insist as long as he please. But with respect to the prisoner who is served with his libel just at the end of the sixty days, according to the construction which I am now disputing, not only has he no means of bringing his trial to a close, but not even to a commencement, within forty days more, nor within any limited period whatsoever; but he must remain continually in gaol, perhaps for several months more, as the prosecutor shall determine, before the calling even of the libel. Accordingly in the case of M'Ewan, there were fifty-five days between the execution of the libel and the diet of compearance."—3Hume, 170. * "Let us now inquire, what is the consequence of that desertion of the diet, which takes place under the clause of the statute last recited, where the prosecutor, after duly executing his libel within the sixty days, either does not insist at the diet thus named, or fails to bring the trial to a conclusion within the space of forty days? Is it merely the release of the prisoner for the time, but subject to re-commitment and a second trial? Or, has he a protection thereby, against all further challenge and question for that offence? It is very clear, that in all those instances where, before the expiry of the forty days, the libel has so far been insisted in as to be remitted to a sworn assize, the desertion of the diet afterwards is equal to an absolution of the charge. If the prosecutor has so managed matters, that verdict is not returned, or sentence not pronounced, within the forty days, certainly this blameable remissness on his part cannot purchase for him a dispensation from that rule of our law, which says, that no man shall thole an assize twice 4. A fourth question is, whether, in computing the forty days, the day of the commencement of the trial shall be included? This was argued in Thomson's case, 1739, but has never been decided. *

5. A fifth question is, whether the limitation of sixty and forty days applies to forgery tried in the court of session? This was argued in Stark v. Burnett, 1748, and it was found, that it does not apply; and it is so held by lord Bankton and Mr. Hume.

6. A sixth question is, whether the act applies to fraudulent bankruptcy? And it for the same crime; but even where the diet is deserted at an earlier period of the process, or perhaps at the first calling of the libel, on account of the failure to insist, these reasons may be alleged why the panel should have his full discharge of this accusation—1st, The statute has said, that the diet is here to be deserted, simpliciter; whereas, if the prosecutor may still insist in a new action, the proceeding truly amounts to a desertion pro loco et tempore.—2ndly, According to any other construction, this part of the enactment is in some measure ineffectual and imperfect. For Wherein is it any material advantage to the accused, that his trial under the first libel must come to a close within forty days, if the prosecutor can again bring him into jeopardy, and add a new term of forty days more to his confinement, by the simple expedient of deserting that libel, and raising another?—3rdly, It may be argued, that if received in any other sense, the provisions of the statute for the several cases and situations mentioned in it are unequal and capricious. One against whom no libel is raised within the sixty days, can in no event be confined for more than a hundred days in all. But, according to the construction now spoken of, one who is served with his libel on the sixtieth day may be kept in gaol, and under trial for forty successive days; and then he may have to suffer confinement for forty days more under a new libel, raised after desertion of the first one.—4thly, The prosecutor suffers no hardship in being obliged absolutely to conclude his process Within the forty days, a space of time which is almost always sufficient for that purpose. Notwithstanding these considerations, which, in themselves, may seem to be of some weight, we shall find reason, perhaps, in the expressions of the statute, and the arrangement of its several clauses, to doubt, at least, whether they are decisive of this question."—3 Hume, 175. * "In the case of Robert Thomson, in June, 1739, it was debated, but not decided (neither has the question occurred since), whether the forty days must be free days, that is, preclusive of the day on which the trial began."—3 Hume, 174. has been found that it does not. This case is now under appeal.

7. A seventh question is, whether, in case of a second prosecution on new criminal letters, after the prisoner has been liberated by running his letters in the way I have mentioned, the limitation of forty days for ending the trial applies, if the accused be not incarcerated, but either on bail, or at large without bail. This was argued, and referred to the high court of Justiciary from the circuit court, in the case of Mackinnes, 12th January, 1803, but not decided. Mr. Hume is of opinion, the limitation does not apply in this case; and so are the words of the statute; and the object of the statute seems to have been merely to prevent long imprisonments.* The defects of the statute, from the want of provisions which it wholly omits, are scarcely less important, than the want of certainty which attends those it contains.

In the first place, a poor and unprotected man, who is ignorant how to proceed, or who has not the means of obtaining professional advice, and of following out the steps appointed by the statute for forcing on his trial, or who, from any cause, is afraid of doing so, may remain in gaol for ever. He is entirely in the hands of the prosecutor. If of the public prosecutor, he will probably be tried some time or other; but that he should be many months in gaol first, and that, after being for months in gaol, his case should lie over from one circuit or assizes to another, without being moved in, is very far indeed from an unusual occurrence.

This may subject him to nearly twelve months' imprisonment before trial; nor is there any reason why it should not be longer, if he is more afraid of trial than of imprisonment, and if those, who conduct * "It may deserve to be considered whether the limitation of the forty days at all applies to the new process, if instead of seeking warrant of re-commitment on his libel, the prosecutor leave the accused at large, either in reliance on his disposition to appear, or on free acceptance of his offer of bail, in a case, where by law, he cannot ask to be released on these terms. By the express words of the act, the forty days are to be counted from the date of the new commitment; and it is plain, that the single object and purpose of this limitation is only to shorten the prisoner's confinement. If, therefore, he be at large all the while, he is not in the case which is provided for by the act."—3 Hume, 166. the accusation, are doubtful of their case as it stands. These are usually the sheriffs and county in magistrates, from whom the lord Advocate receives his information; and it happens very often indeed, that, when the case is to come on at the assizes, or circuit, the Advocate Depute finds his information incomplete, and puts off the trial, on the representation of these magistrates, that further evidence may be procured. This is not only a grievous wrong to the prisoners, but a great hardship on that part of the public who must maintain prisoners till they are tried; and would be insufferable from its effect in crowding the gaols, if persons taken up in Scotland, accused of crimes, were more in number than they happily are.

This I propose to remedy, by the introduction of a proceeding in the nature of a gaol delivery.

In the second place, there is no provision for forcing on the trial at the assizes or circuit court; but the prisoner, if he runs his letters, incurs the risk, and frequently the certainty, of bringing it on at Edinburgh, at a distance from his witnesses, and either at an expense which he cannot afford, or with a degree of danger which he dare not encounter. I have known many instances of these considerations deterring these unhappy persons from taking advantage of the act 1701, and subjecting them to a lengthened imprisonment in consequence of it. propose to obviate this, by putting it in the power of the prisoner to set forth, in his letters of intimation, that he desires only to limit the delay of his trial to the next circuit for the district where the crime is said to have been committed.

In the third place, there are no means, by the act, of getting finally rid of an accusation, though letters of intimation have been run, and the necessary length of imprisonment—a hundred days—endured; for the new criminal letters may be delayed as long as the prosecutor chooses. I propose to limit this to two years.* * The efficacy of the remedy afforded by the Act 1701, is well illustrated by a case mentioned by Mr. Hume, in 1754, and by the later case of Mackinlay, either of which cases may, under the existing law, be that of any man in Scotland. Duncan Clark had been imprisoned on a charge of murder, had run his letters, and been discharged at the end of the sixty days. Soon after, he was committed for theft, ran his let- Lastly, the case of imprisonment on an accusation of treason is without all remedy. This defect I propose to supply. Sir, ters for that offence, and was served with a libel, calling him to a diet near the end of the forty days. That libel was deserted, and he was of new committed, on a charge of wearing the Highland dress. And finally, he was brought to trial on the original charge of murder, of which he was acquitted. This appears from Minutes of Debate, 10th June, 1754. The evidence on the trial is curious in one particular: for one of the chief witnesses against the panel details the discovery of the dead body and of the manner of the murder, by means of intelligence received from the ghost of the deceased."—3 Hume, 178 note. Andrew Mackinlay was apprehended on the 22nd of Feb. 1817, on a charge of high treason, and also for administering unlawful oaths, contrary to 52 Geo. III. 104. He was brought before the sheriff of Lanarkshire for examination, and committed to Glasgow gaol for trial. On the 17th of March, a petition was presented to the lords of Justiciary by the lord advocate, which set forth, that he charged Mackinlay, and one William Edgar. with high treason, and prayed for a warrant to incarcerate them in the castle of Edinburgh, for the said offences, till liberated in due course of law. Warrant was granted the same day, accordingly, as of course. Mackinlay was advised by his counsel, that he could not apply to force on his trial under the statute 1701, cap. 6; and that the statute of the 7th of Anne, cap. 21, had introduced the law of England in regard to the trial of treason. Soon afterwards, he was served with an indictment, charging him, not with treason, but felony, for administering unlawful oaths; and a similar indictment was executed against William Edgar. William Edgar was brought up for trial on the 9th of April, when a debate took place on the relevancy of the indictment, on which the court expressed very serious doubts, and ordered informations (printed arguments). The diet (i. e. day of trial) against Mackinlay was adjourned to the 10th of April, and against Edgar to the 19th of May. Meanwhile, the lord advocate abandoned both indictments, and in April new indictments were served. On the 19th of May, Edgar was placed at the bar under the new indictment; but, as the diet on the former was not deserted by interlocutor of the court, Edgar was advised not to plead to the second indictment. A search was appointed for precedents, and the diet adjourned to the 26th of May. It was then found that the second indictment was well served, but the prisoner not bound to plead till the first indictment should be deserted by interlocutor of the court. This being done, Edgar pleaded not guilty, and all diets were continued till the 2nd of June. On the 2nd of June, Mackinlay was brought up on the second in- I think I have said enough to shew that the law of Scotland, in this most important matter, requires parliamentary revision; and, indeed, that such are its uncertainty and insufficiency, that it would be practically intolerable if these were not counteracted by the state of manners in that country, and the lenity with which criminal justice is there for the most part administered. But it were a great mistake to believe, that much personal suffering and actual evil are not produced in Scotland from this state of the law. In saying this, I do not mean to impute blame to those who are intrusted with the administration of it. If I thought so I should proceed in a different manner. They arise from the defects of the law itself. It may be true that they do not usually fall on persons of the most prudent conduct, or perhaps of the most unblemished character. But this is no apology for the law. It is the proper business of the law to provide that those who are guilty of crimes shall be brought to trial, and to punishment, with no more of suffering than is strictly necessary to these purposes;—and, whatever is inflicted on the guilty beyond this, partakes as truly of injustice and wrong, as if it were inflicted on the innocent. It is attended with as much injury to the public, as to individ- dictment; and the first indictment being deserted by interlocutor, he pleaded not guilty, and objected to the relevancy. The court, intimating an opinion against the relevancy, but desiring to have informations, the lord-advocate moved to desert the diet on the second indictment, pro loco et tempore reserving to him to raise a new indictment for the same offence. Interlocutor, as of course, was pronounced accordingly. The lord advocate instantly presented a petition, reiterating the original charge of treason, and craving warrant to commit to the castle of Edinburgh, as before; which was granted, as of course. On the 7th of June, a third indictment was executed against him, for administering unlawful oaths; and being brought to the bar on the 23rd of June, he pleaded not guilty, and objected to the relevancy of the third indictment; on which informations were ordered, and the diet continued till the 14th of July. Informations were put in accordingly, and judgment was pronounced by the court on the 18th of July, sustaining the indictment by a majority—Lord Gillies dissenting. He was tried on the 19th, when, after one witness had been cast and four examined, the lord-advocate threw up the case, and the prisoner was acquitted, having been in prison five months.—Trial of Andrew Mackinlay, printed at Edinburgh.—1818. uals. It enlists the feelings of mankind against the law—it degrades its character, and impedes its course;—and, it is worthy of consideration, that those, on whom these things usually fall, are precisely in that class of life where they suffer the most from them. They and their families are usually dependent on their labour, and, in a greater or less degree, if they are not abandoned, on their character also. To all of them, and to those who depend on them, a lengthened imprisonment is ruin. To those who have a character to lose, the being committed to gaol charged with a crime, is little less, though the accusation turn out to be groundless.

Sir, I am aware that I have discharged the duty I have undertaken, very imperfectly. It was my wish to trespass on your time at no greater length than was necessary; and, if any observations shall be made, which require that I should add any thing to what I have said, I shall trust to the indulgence of the House to permit me to do so.

It is right, that I should say further, that it is not my wish to hurry this measure through the House. If I shall obtain leave to bring in the bill, my intention is, with the permission of the House, to move the second reading for an early day, in order to its being committed, and being printed, with the blanks filled up. After which, I wish to allow sufficient time for its being considered, as well in Scotland, by the judges there, as by gentlemen here—and I shall be ready, for my part, if any such desire is expressed, to permit it to stand over for whatever time may be thought necessary to its due consideration.

Sir, I beg to move you, "That leave be given to bring in a Bill to alter and amend an Act passed in the Parliament of Scotland, in the 8th and 9th Sessions of the 1st Parliament of King William 3rd, intituled, 'An Act for preventing Wrongous Imprisonment and against undue Delays in Trials.'"

The Lord Advocate

said, he did not mean to oppose the bringing in the bill, but at the same time he thought that great caution should be observed in interfering with a law which had existed for upwards of one hundred years, and which might be considered the habeas corpus act of Scotland. The learned lord then proceeded to call the attention of the House to the advantages of the present law, and contended, that the act of 1701 afforded a greater protection to the people of Scotland against wrongous imprisonment, than was afforded to the people of England by the habeas corpus act. He hoped, however, that his hon. and learned friend would bring in his bill rather for the amendment than the repeal of the present law, as the word "repeal" might excite some alarm among the people of Scotland. The changes which the bill of his hon. and learned friend would introduce into the law of Scotland would cause all the criminals of that country to be tried in Edinburgh, and would so create an annual expense of 15,000l. or 20,000l., without conferring any benefit on the public.

Mr. Abercromby

rejoiced that his hon. and learned friend had introduced this important subject to the consideration of parliament. At the same time he was quite aware that it was one which required great deliberation, and he was persuaded that his hon. and learned friend was prepared to concede as much delay in the progress of the measure, as could be justly demanded for that purpose. He also concurred with the learned lord, that it would be better that the avowed object of the bill should be to alter and amend rather than to repeal the existing law; for although he thought the act of 1701 very susceptible of improvement, and that it ought to be improved, yet it was an act which had been extremely useful, and which was associated, in the minds of the people of Scotland, with the liberty of the subject. It was agreed on all hands, that the subject was a weighty and important one; and it was desirable that what was done should be done effectually and permanently. The public at large were, therefore, greatly indebted to his hon. and learned friend for the opportunity thus afforded by him of accomplishing so desirable and object.

The Solicitor-General

expressed a hope, that no alteration would be made in the law without consulting those who were best acquainted with it. He was ready to admit, upon his own knowledge, that the law was chargeable with many uncertainties and discrepancies which called for improvement.

Mr. Denman

complimented the learned lord on the conciliatory tone in which he had met the motion of his hon. and learned friend, and stated that he should be very happy to give his humble support towards amending any defects which should be proved to exist in the act of 1701; an act which, though it might not be perfect, was passed in very good times, and for a very good and useful purpose.

Mr. J. P. Grant ,

in reply, said, that he would comply with the suggestions which had been made to him, and would alter the title of his bill from "a bill to repeal," to "a bill to alter and amend," the act of 1701.

Leave was then given to bring in the bill.