SECT. 3.-Commitment for Trial.

Having finished the precognition, the magistrate is to consider whether he shall liberate the prisoner, or commit him for trial. If he commit him, the act 1701, c. 6, termed "The Habeas Corpus act of Scotland," applies. By its provisions the warrant committing the accused for trial must be in writing, and it must specify" the particular cause for which he is imprisoned." The holder of the warrant, or the keeper of the prison, must give him a full copy of it; and on whatever ground he may have been first apprehended, the magistrate cannot commit him for trial except on a signed information. In practice the warrant is generally appended to the information, stating that "the prisoner above designed is committed for the crime above set forth."1 If any of these requisites are omitted, the prisoner will obtain his liberation by an application to the High Court of Justiciary, in the form of a Suspension.

In the case of insurrection or of foreign invasion, it is provided by the act, that the privy council, or any five privy councillors, may order the apprehension of any person suspected to be connected with the insurrection or invasion, without the requisites above set forth; but this does not deprive such prisoner of his right to be brought to trial.

SECT. 4.-Bail.

On the application of the prisoner, the magistrate or judge must liberate him on bail, if the crime of which he is accused do not infer a capital punishment. The person entitled to grant bail must be either the magistrate who commits, or some judge competent to try for the offence. It is necessary, therefore, that he have jurisdiction in the place where the prisoner is confined. The application for bail must be in writing, and the magistrate is allowed twenty-four hours from its presentment to him to decide whether the offence is bailable, and to fix the amount.2

In considering whether it is a capital crime or not, the magistrate must decide according to strict law; and if it is one of those which are called capital, although owing to the restriction of the libel by the public prosecutor it is seldom so punished, he must refuse bail.3 No person, charged with "a high crime or offence" against the laws of the post-office,

'A. Prac. 154.- Act 1701, c. 6.3 H. C. ii. 88.

is entitled to bail, except with the consent of the public prosecutor, or at the discretion of the Court of Justiciary, or the Sheriff.1 Officers of excise are entitled to bail if they occasion wounds or death, in opposing force to force in pursuance of their duty. The statement in the information is the magistrate's guide to the nature of the offence. It is said that a magistrate who commits for trial may, from a consideration of the circumstances in the precognition led before him, decide the crime to be bailable, although the information or warrant should set forth a capital crime;3 but it is doubted whether a magistrate, other than the person before whom the precognition has been taken, can look farther than to what is stated in the information.1

The High Court of Justiciary exercises the power of admitting to bail, where the case, although stated as capital in the information or warrant, does not appear, on an examination of the precognition, really to be so; and in that class of cases in which, although they are capital according to law, the court considers that bail may with propriety be awarded. The Lord Advocate may consent to the awarding of bail in a capital case, but in doing so he is entitled to stipulate for any amount of bail he may demand."

Amount.-The bail which may be fixed by a magistrate must not exceed (though it may be less than) the following respective sums:-If the prisoner is a nobleman, £1200; if he is a landed proprietor, £600; if " any other gentleman, burgess, or householder," £300; and if an "inferior person," £60.7

The cautioner in the bail-bond becomes responsible for the appearance of the accused to answer to any libel for the crime with which he is charged, within six months from the date of the bond. At the expiration of that period the accused may be again apprehended. Of the sufficiency of the cautioner, the clerk of the court of the magistrate applied to, takes consideration in the first instance, and from his judgment the prisoner can appeal to that of the magistrate. Although the time within which the magistrate must state whether or not bail is to be accepted is limited to twentyfour hours, no specific time is fixed for finally settling the sufficiency of the cautioner, &c. When a prisoner is apprehended on an endorsed warrant from England or Ireland, he

17 Wm. IV. & 1 Vict. c. 36, § 38.-2 7 & 8 Geo. IV. c. 53, § 40.3 Burnet, 336.- A. Prac. 163.- H. C. ii. 91.- A. Prac. 168.739 Geo. III. c. 49.-8 1701, c. 6.-9 A. Prac. 179.

may be admitted to bail by the endorsing magistrate, or any magistrate "before whom such offender shall be brought," unless the warrant be marked by the judge granting it with the words "not bailable." "1

SECT. 5.-Running Letters.

The act 1701 makes provision to enable persons imprisoned on criminal charges to compel their prosecutors to bring them to trial within a given time, in the following manner : -A person in custody for trial for any crime, may make an application to any judge competent (as before explained) to try the crime, requiring him within twenty-four hours to issue a precept, directing intimation to be made to the lord-advocate or procurator-fiscal, and to any private party appearing by the warrant to be concerned, to fix within sixty days after the intimation a period for the trial. The application must be in writing, and must be accompanied with a double of the warrant of imprisonment under the keeper's hand. In the case of treason, the prisoner is precluded from making application for forty days after his imprisonment," which are hereby allowed for preparing of the process," and in such case the precepts are issued by the privy council, or the lords of justiciary.2

Where the warrant has been obtained from the Court of Justiciary by the Lord Advocate, the application must be made to the same court, and the precept intimated to the Lord Advocate or one of his deputies.3

It has been decided that the prosecutor cannot defeat the application by allowing the prisoner to be released after he has made it. It has not been decided whether the application can be effectually made by a person liberated on bail, but it is to be hoped that there can be little doubt of a decision favourable to the accused on such a case occurring.

The effect of the application and intimation is, that if sixty days be allowed to elapse without the prosecutor naming a day for the trial, by causing a libel to be served on the accused, he is entitled to be immediately liberated on a written application to the judge.5

The prosecutor having served his libel within the sixty days, must bring the case to a conclusion within forty days after the day of serving it if the case is to be brought before

145 Geo. III. c. 92, § 2.-2 1701, c. 6.-3 H. C. ii. 105.-* M'Donald, 8th November 1832, A. Prac. 185.- 1701, c. 6.

the Lords of Justiciary, and within thirty if before any other judge. Thus, in the one case the prosecutor has 100 days, in the other 90, within which he is to serve his libel on the prisoner and have the case decided. The effect of its not being decided within the appointed time is, that on application to a judge competent to try the crime, a precept must be issued within twenty-four hours, charging the keepers of the prison, &c. to liberate the accused. If the case has been remitted to a jury, and circumstances have prevented sentence being passed on the prisoner before the expiry of the forty days, he cannot be brought to trial again for the same crime.1

If, however, the libel have been served, and the period of trial postponed by desertion of the diet, or if no libel have been served within the sixty days as above mentioned, the accused is in a different situation. He is released, and no indictment can be served against him for the crime for which he was apprehended, but he may be re-apprehended on criminal letters, which are not, like an indictment, the mere statement of the prosecutor, but sanctioned by a judge (see next chapter), and in the case in question the letters must be raised before the Lords of Justiciary. The trial upon these letters must be brought to a conclusion within forty days from the time when the prisoner is incarcerated upon them, otherwise he is dismissed, and cannot be re-apprehended for the same crime.2

On the whole, then, the time within which a prisoner can insist on being brought to trial before the Court of Justiciary, or released without further question, is 140 days. But it is questioned whether, if the prisoner is not incarcerated, but merely served with the criminal letters, and left at large, it is incumbent on the prosecutor to bring the trial to a conclusion within the forty days.3 It does not appear that the prosecutor is limited in the time within which he must serve his criminal letters; so, if he have failed to serve them before the prisoner's liberation (it being the usual practice to have them ready before he is out of custody), his security from arrest will consist in flight.

1 H. C. ii. 113.-1701, o. 6. H. C. ii. 113. A. Prac. 200.- A. Prac. 203.

CHAPTER III.

LIBEL OR ACCUSATION.

SECT. 1.-Form and Nature.

THE "libel" is the instrument of accusation laid before the court by which the offence is to be tried. Libels are of two kinds, Indictments, and Criminal Letters. In all ordinary cases of prosecution by the Lord Advocate the indictment is used. Criminal letters are used where private parties prosecute, where the Lord Advocate prosecutes one who has been liberated under the act 1701 (see preceding chapter), and in inferior courts. In an indictment the prosecutor personally accuses, and the statements are carried on in the second person, as "you did wickedly and feloniously steal," &c. It is signed by the Lord Advocate or one of his deputes. Criminal letters in the High Court of Justiciary proceed in the name of the queen; in others in the name of the judge. They intimate that the prosecutor has made a complaint against the party accused, stating the accusation in the third person, as, “A. B. did wickedly and feloniously steal," &c., and praying that he should be cited to answer to the charge. Criminal letters are signed by the clerk of court. In the supreme court they are granted on a bill, or application admitted by a deliverance of one of the judges granting the prayer, and are passed by the signet of the court.

A list of witnesses is annexed to every libel, which, whether it be an indictment or criminal letters, is signed by the prosecutor in the superior court; in the inferior by the prosecutor or the clerk. Where they cannot be enumerated in the body of the document, an inventory of articles stolen may also be annexed. The inventory is signed by the person who signs the body of the libel.1

Every libel assumes the form of what is termed in logic a syllogism." It is first stated that some particular kind of act is criminal, as, that "theft is a crime of an heinous nature and severely punishable." This proposition is termed "the major." It is next stated that the person accused is guilty of the crime so named, "actor or art and part." This, with a narrative of the manner in which, and the time when,

1A. Prac. 211, et seq. Act of Adjournal, 17th March 1827, S. J. 120.