The magistrate must, on application, grant or refuse bail, and fix its amount within statutory limits. All offences are bailable, except capital crimes, and (by late statute), those post-office offences which used to be capital. The Crown counsel, on examining the declarations of the witnesses, may immediately order the prisoner to be liberated, or fix his trial, either before the Justiciary or Circuit Courts, or, if the crime admit of it, before the sheriff. Even in the course of last century we find the sheriff exercising a criminal jurisdiction, which extended, in some cases, to life and death; but his powers are now greatly limited. The causes usually remitted by the Crown counsel for trial before him, are those where the counsel thinks there is cause for prosecution, but that the result should be fine or imprisonment. The sheriff's powers to dispense with a jury are not very strictly defined in law; but it is quite certain, that without a jury no sentence can be lawfully pronounced exceeding fine, imprisonment, or banishment from the county: and it is believed that, in fact, no trials take place without a jury, excepting for petty offences against the public peace. In trials before the principal sheriff and a jury, the procurator-fiscal of the shire acts as prosecutor; and the sentence may be appealed from to the Court of Justiciary, whose decision is final, not being reviewable by the House of Lords. In Scotland there is no coroner; and no grand jury, except in cases of high treason, which are tried in the English form, before the Court of Justiciary, or a commission of Oyer and Terminer, of which three members must be Justiciary judges. In the progress of the ordinary causes, the indictment must be delivered to the prisoner at least fifteen days before trial. It must be drawn very specifically and accurately, extremely slight technical errors being sufficient to vitiate it; and annexed to it must be a list of the witnesses and of the jurymen who are to be summoned, and a list of the articles to be exhibited as evidence for the prosecution, which, if demanded, must be also shown to the prisoner before trial. The day of trial being arrived, either in the High Court of Justiciary or Circuit Court, the jury are taken from a list of, at least, fortyfive, returned by the sheriff, of whom, two thirds are common, and one third special, jurors; and the jury is ballotted for, so that one third may be special, and two thirds common, jurors; though, if the accused be a landed proprietor, he is entitled to have a majority of special jurors. Besides challenges on cause assigned, the prosecutor and prisoner may each challenge peremptorily five jurors, but only two special jurors. The number of the jury is fifteen. If a prisoner do not appear, he cannot be convicted of the crime charged, but merely have sentence of outlawry pronounced against him; from which he may afterwards be relieved on surrendering himself for trial. The first step is to read the indictment, and to determine on its relevancy, i. e. whether the facts alleged be sufficient, if proved, to constitute the crime charged. This is the stage for bringing forward all objections to the indictment, which would not be received after the court has formally declared it to be good. A prisoner has always counsel: if he be too poor to fee one, the court will order a barrister to act for him; but this is never necessary: the number of junior counsel willing to act gratuitously is always greater than that of the trials; and, in Edinburgh, at all times, and on the circuits, when important civil jury trials are to come on, it is not unusual to see the senior counsel conducting, without remuneration, the defence in difficult criminal causes. The witnesses do not hear each other examined; and if the prosecutor can be shown to have held communication with them after they were formally cited to appear in court, the prisoner may successfully object to their being examined. The prosecutor, too, must close his evidence before the evidence in exculpation begins. The Scotch rules of evidence give the prisoner an advantage, which, in England, he enjoys only in cases of high treason: he can be convicted only on the testimony of two witnesses, or of one witness supported by circumstantial evidence so strong as to equal that of a second witness. The evidence for both parties being finished, counsel on both sides address the jury, the prisoner having the last word; after which the judge charges the jury. The verdict need not be unanimous: the narrowest majority is sufficient to convict as well as to acquit. A verdict of Not Guilty indicates a belief by the jury in the prisoner's innocence: Not Proven indicates suspicion, but a want of proof of guilt. Either verdict is conclusive: it is not possible again to imprison or try the prisoner for that crime. In capital cases, the Crown counsel has power, before moving for sentence, to restrict the libel, a form which disables the judge from pronouncing a capital sentence. After sentence has been pronounced, the criminal may, as in England, appeal to the mercy of the Crown; and to allow time for this appeal, it is provided that no capital sentence shall be executed sooner than fifteen days after sentence, if south, or sooner than twenty, if north of the Tay. Till lately the time was longer. The following table, from a late work, will show the result of the Scotch criminal system: Average of Cases for Three Years ending December, 1828. Average of cases transmitted annually to the Crown counsel in Edinburgh 589 128 137 216 25 CHAPTER VII. CONSTITUTION, COURTS, ETC., OF IRELAND. SECT. I. Sketch of the Political Circumstances of Ireland since the Revolution. THE treaty of Limerick, in 1691, forms one of the principal epochs of the history of Ireland. During the century at the close of which this treaty was contracted, the whole landed property of the country, with a few insignificant exceptions, changed masters. In the reign of James I. more than, 2,800,000 Irish acres, being by far the greater part of the province of Ulster, escheated to the crown through the imputed rebellion and flight of the Earls of Tyrone and Tyrconnel; the forfeitures during the civil wars of the protectorate_extended over 7,800,000 acres; and those of the adherents of James II., during the subsequent war between him and William III., to upwards of 1,000,000. The whole superficies of Ireland contains somewhat more than 12,000,000 Irish acres; "so that," as was observed by Lord Clare in his speech on the Union, "the whole of the island was confiscated, with the exception of the estates of five or six families of Irish blood, some of whom had been attainted in the reign of Henry VIII., but recovered their possessions before Tyrone's rebellion, and had the good fortune to escape the pillage of the English republic, inflicted by Cromwell; and no inconsiderable portion of the island has been confiscated twice, or perhaps thrice in the course of a century. The situation of the Irish nation, at the Revolution, stands unparalleled in this respect in the history of the inhabited world." The effects of the non-fulfilment, or rather violation, of the primary article of the treaty of Limerick, which guaranteed to the Catholics the same religious privileges they had enjoyed during the reign of Charles II., were immediately felt. The ardent spirits who survived the wreck of their cause, shut out from all hope of distinguishing themselves at home, withdrew to France to await some favourable chance of recovering their lost fortunes; and the original stimulus thus given to emigration was perpetuated by the operation of the penal laws, which drove the élite of the Catholic body to seek an asylum in a foreign land from the grinding persecution they suffered in their own. It has been stated, on the authority of records in the military offices at Paris, that, between 1691 and 1745, no fewer than 450,000 Irishmen died in the service of France.* The Catholic clergy, hunted down like animals feræ naturæ, were driven out after the others, with the exception of those, in number not a few, who clung to their creed and their congregations through all extremities, and continued in spite of the combined efforts of fanatical and political persecution, to hold their religious assemblages in decayed uninhabited houses in towns, and in *MGeoghegan, Histoire d'Irlande, tom. iii. p. 754. See, also, Newenham on the Population of Ireland, p. 60. caves, glens, or morasses throughout the country. That part of the Catholic population which the want of means to emigrate, or the uncontrollable love of country, retained at home, finding themselves cut off from all hope of realising a respectable and permanent independence by agriculture, gave up tillage, and turned their lands to pasturage, by which they were able to maintain with little expense an existence somewhat better than that of the animals they reared, and in which the amount of their profits could be less easily detected. The new English settlers found the hopes of aggrandisement, which had led them to expatriate themselves, checked by unexpected obstacles. Though the undisputed masters of the soil, they soon discovered that their broad lands were little better than a barren waste, if unprovided with the means of cultivation. Few in number themselves, and those few elevated to the rank of landed proprietors, they were driven to the necessity of employing the Catholic population in the performance of manual labour. Hence estates, except in the northern counties, were stocked with an ignorant, reluctant, and consequently lazy and intractable tenantry. The operation of these causes sufficiently serves to account for the state of Ireland, for more than fifty years from the Revolution. On recurring to the annals of that period, it is nearly impossible to develope anything meriting the name of history. A space of half a century unmarked by any occurrence worthy of being handed down to posterity might, in the then rapid progress of moral civilisation throughout all other nations, be deemed a second anomaly in the state of this island, were it not that the accurate investigator is able, even in this superficial barrenness, to trace the germs of the events and circumstances that now draw upon this long neglected and unnoticed appanage of British dominion so large a share of the attention of parliament and of the public. The history of Ireland till the year 1768, is confined to the efforts made to extirpate the Catholic religion by penal laws, and to the petty struggles of the newly formed Protestant aristocracy to assert a position of national independence with respect to their parliamentary connection with Great Britain. The principal provisions of the penal laws may be summed up with sufficient accuracy for our purpose in a very few words. By a succession of acts passed during the reigns of Anne, George I., and George II., Popish fathers were prohibited from being guardians to their own children conforming, however young, to the Protestant religion. No Protestant could marry a Papist having an estate in Ireland. Papists could not purchase lands, nor hold them by lease for a term longer than thirty-one years; and if such lease produced a profit greater than one third of the rent, the right in it ceased, and passed over to the Protestant who discovered such increased profit. The estate of a Papist was to be gavelled (divided) after his death among his children; and, in failure of children, among his collateral kindred. Papists were excluded from residence in Galway and Limerick. Voters at elections were obliged to take the oaths of allegiance, abjuration, and supremacy. No Papist could take an annuity for life. Papists teaching either publicly or privately, were to be prosecuted as Popish regular convicts: Popish priests on conforming, were to receive a stipend of 30l. per annum, until better provided for in the Protestant church. The following rewards were offered for discovering Popish clergymen and schoolmasters: - for an archbishop, bishop, or vicargeneral, 501.; for a regular or secular priest not registered, 207.; for a schoolmaster, 10l. Protestants were authorised to proceed in chancery to compel discovery against any person suspected of being concerned in any sale, lease, mortgage, or incumbrance in trust for a Papist; all issues under such proceedings to be tried by none but known Protestants. No Papist was to take more than two apprentices, except in the linen trade. Papists were prohibited from being on grand juries. In trials on any statute for strengthening the Protestant interest, the plaintiff' might challenge a Papist, which challenge the judge must allow. Papists were to find Protestant substitutes for the militia, and to pay double. They were prohibited from being high or petty constables. Barristers and solicitors marrying Papists were to be subject to all the penalties on Papists; marriages between Protestants and Papists, or those celebrated by Popish priests, were annulled. Popish priests celebrating marriages between Protestants and Catholics were to be punished capitally. Such are the principal clauses of the anti-Catholic penal code, probably the most atrocious system of persecution and tyranny ever established in any European country. In his letter to Sir Hercules Langrishe, Mr. Burke says, "The laws made in this kingdom (Ireland) against Papists were as bloody as any of those that had been enacted by the Popish princes and states; and when these laws were not bloody they were worse; they were slow, cruel, outrageous in their nature, and kept men alive only to insult in their persons every one of the rights and feelings of humanity. *** You abhorred this code, as I did, for its vicious perfection. For I must do it justice. It was a complete system, full of coherence and consistency; well digested and well composed in all its parts. It was a machine of wise and elaborate contrivance; and as well fitted for the oppression, impoverishment, and degradation of the people, and the debasement in them of human nature itself, as ever proceeded from the perverted ingenuity of man." The spirit in which this detestable code was acted upon may be inferred from the circumstance that, in 1708, on the rumour of an intended invasion of Scotland by the Pretender, forty-one Roman Catholic noblemen and gentlemen were imprisoned in Dublin Castle; and when they were liberated, government was so sensible of the wantonness of the infliction, that their fees, amounting to 8007, were remitted. About the same period the House of Commons deemed it necessary to denounce a custom continued from time immemorial for infirm people to make an annual pilgrimage to St. John's well in the county of Meath, declaring by a vote that those sickly devotees were assembled in that place to the great danger of her Majesty's government. This vote was followed by others, declaring those who did not give information of their knowledge as to the saying and hearing of mass, under circumstances contrary to law, to be enemies to the queen, and that the prosecuting and informing against Papists was an honourable service to the government! At the commencement of this period, the plan of establishing schools for the reception of children of the |