ADMINISTRATION OF CRIMINAL JUSTICE IN SCOTLAND.

LEITER II.

TO THE EDITOR OTTER SPECTATOR.

. Edinburgh, 19th November 1849. SIR—Alterations in existing systems of law are always difficult and sometimes dangerous, but seldom so dangerous as-difficult. Every reformer is a prophet ht. his own country, and the fate of prophets is peculiarly attendant on them in Scotland. Ecce signum t we have the Marriage Bill for 1849. It is therefore probable that no change will be in the administrationof criminal -justice betweea Cape Wrath and Berwick-upon-Tweed.- The subject of my letfris seems, bows. ever, to derive in increased importance from the apparent inclinitiOn on that:eft' of some great legislators South of the latter boundary to identiqi;their criminal - code with our -own; and, hippy as I should be to's/NA itA Mei*, appreeiated0 IihORld be proportionately sorry if accidentally its peculiar errors Were repeated in aseshert -and on a scale where the mischief they are capable of aoing would be prodigiously magnified. For in a discussion of, this kind. .'here a really good exemplar has been discovered and recogeiyel, aPPTeljerodeo- I"" ltor sweacs-ss —mirable and indeed wonderfully

whole of a plan, whose model from the sheer:ice of a due perception of

correct, should be adopted as anur"‘" those defects which it nos- mate knowledge trf.,Aillooro or sufficiently to ' hatse.ue'. rsAtendency towards centralize* is apteto,:produce two

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errorshl..--&-ti ppe ehtaisthe foam of intelligence and power of many useful hints

Most o your readers are probré,thii gtay,..„different system of

coioskprecedure fbrabWrivdication lawpand theposteetion of private pro- - :exists in the twos of 0414411E-10 Englaod, the general: theory is

'vate; in'Scothill of pitbile peollecutions; and the great

, and 01.- 4.0.11

, fortunate &wenn Rg lef

little systems in w ich they ha

jog my mite of usefulptish: veutuied tojettend hoe onghlowntehylefla sthosed atlittie distance; and an equally on- pstvetottles in the absolute perfection of the rev,olved. It is with a bope of contribut-

e,dfasipatiou of both these errors that I have IA fht degree the :There of those remarks which

Mandel utioh the ideivof characliniatics et thetwo stet:1'11'156wpm, immediately prominent front the very

conlieencethent.ofthe peeinas•id'ee4igions. k:

Immediately upon the ComtniMidn 6 - .e, crime,..information. is lodged either

by the Police or the Injured party with t. Procurator-fiscal of the distnot; an officer whO discharges in'his 0W1I'persoi? ritlictiOn.s analogous. to those of the Co- roner, though without the intervention of au Inquest. _A-writing called an in- formation-or complaint n presented. ..tit the Magistnato, signed by the party

makingtheliplication; in the absence of, vtitichMpritsonerparinot be dom..'

...mitted,,Einiottlistlierbyrisiguldgelfs ileapansiblefolv lei c oences of the impft- too it shay tassabitt tAiticutiiutidleasvor-ntel44., ny rfraction. of tllese isr)sgo Rt 14 tsji, la tratsni vented astiteittrMfie'se tilty " Thicinformatme,

r, M mg ISI,Skikisiat'?utthwitrtoirairiviit ii nil tal, not ind, for trial:beret inlhae ns.,...a:prnceerling iehiehP td liee'the' %verde Of Lord

• Eklon 04. titdini .,.faumagalinit itte.partyinbor.ii pikkeeding for his heiletiipv)iptil a comnottnanstfor trial; if daring a rett;- senableltithel r ' !Vega, 0- thlikt,theremught a to lbe,no commit went for ctistedylinOidkfor file' .. er. the ,PrlsPoer chest:been annulated, the OXaminati°A-Pr'thelvithesseS is prliided git4 .4/ sAgkef.etelletl:the.Proonrator: Ar,coll,in thekibtlenot of, the accitS Isill haVing,fleocoochnletk ..is . euhtnitked to the 14agistaale,. in order t hail hetik lreterinilie.W.kether there are sufficient kroode,forteonnoitting the accused foittial, '-'" ''' ",' ,'; . . ., ,,,Theenserl,person,being:nommittedrfer.trhil„ the Preiognition or evidence is illimediatelyAtansinitteti.40 theLard-AdrOcate and hia'Tleputes in Edinburgh, in. edit that thektifter viewiug..the evidence, may finally affirm or set aside .tha. MagistretelWarrantofmappitotant for trial: theeegentlemen exercising hither Cain 1sesda 'Iilif.lfrablia ,prerogintgaii peculiar to the:Grand -Jury;with far More lioirand41-Wiet). Sin, accompanies the motions of those more ertinibrous: .. Thesenre.a1PPritient; besides the Lord-Advocate and Solicitor,General,'five exon CounSel,:who are all gentlemen of experience and standing in- their.:pro- ' fession, and who', having to decide upon upwards of a thousand cases yearly, : soon acquires .gleglettotreadioees and accuracy in the performance of their duty,. Which operatas!verybenefisiallyinpractiee, by leading to the iininediate.ffischarge of several hundred -persons, who by- the English system Would be detained to await the verdict of the Grinod.,4tyt 9 •• .!• • ' ' ' ' . ' The result of the opposite systems may Ise pretty aCturately contrasted as fol- ldwa Taking the average of alincet any-seven years as a -criterion, I will venture to state, that out of the actual number of committals for trial made in England, not More than two-thirds result in convictions, the remainder being either ignored by the Grand Jury, or issuing in acquittals by the Petit Jury,,--a proportion enormously extensive when Contrasted with the Scottis4 returns. Of the cases sent for trial in Scotland, the average of acquittals is no more than 10 or 11 per cent. This may be proved by a reference to any of the recent records; and the

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feet established e, that of any given .number of mixed characters ,a Vastly smaller number of innocent persons are subjected to-an-unjust and nenicessary imprison- ment in Scotland thau is the case. South of the Tweed- ' and yet I shell be fully able' to show, that the number is, .through.the,vicesof the system pursued in Scot- land, greater than it should be. The result, however, of my statement, if left titi. fuliehed,,Wotild be alrnost wholly favourable . to the system in which both by-pre- judicosnd• ethreation• I slinald be likelyiteleel predilections. Bat-as astronomers find,sp3cks eveti irt- the'ille:ithd"ris bleintalum ,every day discover themselves - even..m what, have boon eintaiikireeffie perfect. achievemenM, of art1. so it must be confessed that :there are practical defects even in the criminal iostitn-' lions which I. haveiivatuited,' and which it were unwise '.deliberately, to copy or unwarily to assinnointo the hitiV System- of criminal. law for England. England cannot de ug without-stich a .,retiovatitin -of -her practice. She canriot ttatepe certainly do tVorse, ,,, 44QPSAPArplanwithontrefbrniing its faults. For instance, I dareisserethithe '. ikihnch.har,in$cotlandwrisild gritsve to see repeated else- where the libithiioti bailie Henke+ of takiligdoWn in a judieial writ the prisoner's examination; (to brevIdesibl againat the accused, aet:for him); of-leading police testimony as to prior !-thatirifiet,, in cases wheneAs_jigzare directed to consider oharacteras foreign to thelr deeision ; in denyinganyap , freuttlut presiding j udge even in capital cases; and other .points that Will 'form e slibjectof,allosions here-, after.,,,. .Ihelievoin .finev.thittiivieWed merely as a- Machine for the conviction of persons accused of crime and as a certain detectiVe of guilt,. the Scottish form Is the perfection of prackiceropadi if law: were ,11 Mere hand-min,- to grind, out of ments, and transportallene, e result would recommend it for nniviinal adopt' as few juries as possible,41.greatest likely,. equivalent of. convictions imprison- tion.,::Bra, dila* hitis'fi tiject even snore ..iiip3,.yinclioation of innocence than the punishment of 'guilt, th,Cpublic will naturally. demur to accept of a system, which, possesses that -peetillinaty as its great recommendation, ..I shell therefore conflicts the observations- to'which your indulgence has given scope, and trust they will-not be-entirely uninteresting. ' ... Now the-peculiar aspect 'Which the Scottish law assumes towards the unfortu- nate aubjeets of its inspentiOns, Is one of a very amicable character. • "Save me from my friends," says the trite Spanisly4overti; "1 willdeliVer myself from my . enemies"; • and .the aceitsed. prisoner. in. - tlartd Imo. good.cause to recognize its truth. ..The late. witty Dean of 13ristot ,ong ago pointed oat the fallacious friendli- ness of the maxim" that the, judge is Counsel for the prisoner,"-whereby the assist- ance of ,an-advocate to Ii2dioils accused of felony was long denied, and that denial justified in England. The friendship of the. boatch,law..,fOtsccused persons is still more singularlYexeinplified; it abdimds in demonstrations of amity. I have already mentioned the idea impressed on Lord Eldon, (no doubt by Scotch pleaders) that the various remands for- examination are a process intended to as- sist the prisoner'a ,defgaco.,,:i0m-..text,viriters abound in the most heroic sen- timents relative tolelia timed Irstomenee of accused persons before conviction.

The strictest rulealtat caed.agsinst any undue attempt to elicit ' admissions

or confessions from.' -..and lest his cask should suffer injury, the law. voluntihily informs hilii fliat Id wilt-be supplied, before his trial, with every Pos- sible iffibrreatiaiwn gliis ease, and with the professional 'aid of ao agent

and ad'hockli," i713'The ri

., tiad,may be at ease on the 'subject Of his defence. Fair promises 'all; -hti 40. ill - kapt, that I excused the ill...breeding'for the sake or the truth contain' .,,In it, when, soon after .I begat practice; a client 9f mine, (an unforto*te„votary Of Thespis and Mercury,) in answer to some information I gays ttiork.aa," what he might have done--for his case, sent ma.

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the following retort ends, e ii. , _. his indictment. ' • ' r - '".kce.,,,u_ he, tongue that tens me so t. -

e .0 . , • .-

Andf164)egitIbis `ffies f no more believed - That alter wills us las double sense, • • Mit:keep the word ofproinhoe to the ear- - .and breaVItttrOdt hb*." And, indeed, Macbeth's witches were . rrpite°i. s.e pght-reep erfthar the $coi st Them ,Ishal;eaminetffek avia reiitor4tim, hotmmitreierve-his for another nflbnunatilg ''

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-- I hiii your obliged and obedient servant, INDICATOR.