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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 ecer 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 bis 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 alınost 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 :

"O it is excellent
To have a giant's strength; but it is tyrannous

To use it like a giant.” 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.*


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.t 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.

under three different chief governors; and from the twenty-eighth year of his reign, they were summoned almost every year under the duke of York, who was lord lieutenant for ten years. Eight parliaments were summoned during the short reign of Edward IV. During that reign a law was passed, which enjoined the residence of the clergy, under the penalty of forfeiture of their benefices for a year's absence, and taking away

the benefit of the king's license; also an act prohibiting appeals to England. This last act was prejudicial to the rights of the crown, and perhaps gave rise to that famous law of Sir Edward Poynings, in the reign of Henry VII. In the tenth year of this monarch, a number of laws were passed of great importance; the chief of which were that which authorized the treasurer to create delegates, and gave the officers of the treasury the same powers as those in England; the statute which adopted all the laws of England, antecedent to that period; and lastly, the famous act, emphatically called Poyning's law, which regulated the mode of summoning parliaments, and of passing laws. Till this period, laws were passed, and the lord lieutenants gave the royal assent from their own power and authority, in the same manner as the king did in England; but this power having been abused in the disputes between the rival houses of York and Lancaster, particularly by Richard duke of York, it was enacted by Poyning's law that no parliament should be held in Ireland, till the chief governor and council should previously certify to the king the causes and considerations for holding the same; or, in other words, all the acts which were intended to be passed in the ensuing session of parliament. This law appears to have been rigidly enforced in subsequent parliaments, till the 28th and 33d of Henry VIII., when two parliaments were held and confirmed, notwithstanding the prescriptions of Poyning's law had not been observed. In the latter years of this monarch's reign, and in the fourth of Philip and Mary, an act was passed explanatory of Poyning's law, by which the lord lieutenant and council were permitted to certify to the king, while the parliament was sitting, such provisions as they might deem expedient to be formed into laws during the session of parliament. In the beginning of the reign of Elizabeth, parliaments were repeatedly held, wherein the ecclesiastical jurisdiction of the crown was re-established, and all the acts restoring popery were repealed. Poyning's law was by some considered as the sacred palladium of the English government, and which it was almost sacrilegious to touch ; and to propose its repeal was considered as a political profanation.

In early times the lord lieutenant gave the royal assent, as the king does in England, without any communication with him, or any particular license. In the reign of Henry VII. it was provided, that all the bills should be previously sent by the lord lieutenant and council to

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England, which were intended to be passed in any parliament, as a reason for holding the same. The extreme inconvenience of this necessary preliminary caused two temporary suspensions of this law in the reign of Henry VIII.; and in that of Philip and Mary, propositions for laws or heads of bills, might be transmitted from the council during the sitting of parliament. Till 1782, the practice grounded on these two laws was, that the council sent over a money bill every new parliament, as a reason for its convention, and also such propositions as were made to them from the two houses, while the legislature was sitting, for acts of parliament. But in consequence of a law passed in the said year, no bill could afterwards be transmitted from the council before the meeting of parliament. Latterly, bills passed in Ireland as they do in England, and the lord lieutenant was empowered by commission to give the royal assent similar to the mode in England, when the king does not give it in person.

Propositions for laws, or heads of bills, originated indifferently in either house. After two readings and a committal, they were sent by the council to England, and were usually submitted by the English privy council to the attorney and solicitor-general : they were then returned to the council of Ireland, who sent them to the commons, if they originated there (if not, to the lords); and after three readings they were sent up to the house of lords, where they went through the same stages; and then the lord lieutenant gave the royal assent in the same form which is observed in the imperial parliament. In all these stages in England and Ireland, any bill was liable to be rejected, amended, or altered; but when they had passed the great seal of England, no alteration could be made by the Irish parliament. Latterly, Irish parliaments were convoked by proclamation from the

Bills originated in either house, and went from one to the other, as they do in the imperial parliament; after which they were deposited in the lords' office, when the clerk of the crown took a copy of them on parchment, which was attested to be a true copy by the great seal of Ireland on the left side of the instrument. The Irish council then trapsınitted them to England; and if they were approved of by the king, the copy was returned to Ireland, with the great seal of England on the right side, with a commission to the lord lieutenant to give the royal assent. There are very few instances of the crown having refused Irish bills, or of their not being returned, since the year 1782; but, nevertheless, the royal prerogative in negativing a bill in Ireland, was as clear a right as it is at this moment in England; and although the crown has seldom exercised this ungracious prerogative, it by no means follows that it either does not possess it, or that it has fallen into disuse. *

*. Lord Mountmorres' History of the Irish Parliament.


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