HISTORY AND NATURE OF LAWS. 



object, efforts should be made to educate all 

 citizens, and specially those who aspire to become 

 members of parliament, in the laws of their 

 country. 



English Legal Usages. 



Two English legal usages have played so 

 important a part in preserving the liberties of the 

 people, as to deserve separate notice. 



I. Trial by Jury, in criminal cases, is of great 

 antiquity, having its foundation in certain Anglo- 

 Saxon forms favourable to individual liberty, and 

 specially in the practice of compurgation, formerly 

 referred to, for the compurgators, who were ori- 

 ginally witnesses, became afterwards judges of the 

 matters of fact in criminal trials. It was sanctioned 

 by Magna Charta, and has ever since continued 

 a marked characteristic of the law of England. 

 During the present century, it has been adopted 

 in criminal cases by most of the states of the 

 continent. A jury originally consisted of per- 

 sons in a rank as nearly as possible analogous 

 to that of the party charged with an offence. 

 Practically, it is composed of individuals miscel- 

 laneous in rank, so as to insure impartiality in 

 decision. In England, the jury, in criminal cases, 

 is of two kinds, the grand and the petty jury. 

 The grand jury consists of twenty-four persons 

 summoned by the sheriff, to attend the court and 

 present all offences committed within the county ; 

 that is, determine whether the cases of criminal 

 accusation shall go before the petty jury. The 

 jury so called examine witnesses on oath, and 

 receive other evidence ; if satisfied that there are 

 grounds for trial, they find a trtie bill, as it is 

 called, and the trial proceeds. The object of 

 this institution is to prevent the oppression or 

 damage of innocent persons ; but, in practice, it is 

 a clumsy method of investigation and deliberation, 

 and liable to error, from the vast quantity of busi- 

 ness to be hurried through, as well as burdensome to 

 the lieges. The time seems to have arrived when 

 it will require to be superseded by the more efficient 

 institution of a responsible public prosecutor. 



The petty jury, for the trial of those against whom 

 a true bill is found, consists of twelve men, drawn 

 by lot from a larger number summoned. This 

 jury is the sole judge of the fact or facts charged, 

 and its decisions require to be unanimous. In 

 many instances, a jury cannot conscientiously 

 arrive at a unanimous conviction, in which case 

 either one or more must yield to the majority ; or 

 the whole, after experiencing the pangs of hunger 

 for one or two days, require to be discharged, 

 when a new trial must ensue. 



Trial by jury is usually considered to be 

 the palladium of our rights and liberties ; but 

 this favourable view of its character needs 

 modification. It is principally useful as a safe- 

 guard against vindictive attempts at oppression 

 on the part of the crown or other powerful 

 accusers ; yet even in this respect it has on vari- 

 ous occasions proved faulty. In Ireland, for ex- 

 ample, where the English forms of grand and j 

 petty jury have been introduced, it is observable 

 that there is scarcely a possibility of procuring a 

 conviction where the state is the complaining and 

 injured party, although the facts charged be proved 

 beyond the possibility of cavil It can command 

 respect only where there is a deep sense of 

 rectitude, and a disregard of public clamour. 

 2. Habeas Corpus, Only the law, not the sov- 



ereign or any functionary of government, can 

 imprison the person of a subject, who can reclaim 

 against wrongful or unconstitutional seizure and 

 incarceration by an action of habeas corpus, intro- 

 duced in the reign of Charles II.; that is, an 

 action before a competent court to be released, 

 or have the custody of his own person, unless a 

 legal warrant can be shewn for imprisonment. In 

 periods of civil commotion, the habeas corpus 

 is occasionally suspended by an act of the 

 legislature ; by which means the state can im- 

 prison without challenge, and dismiss without 

 trial. As may be supposed, this serious infringe- 

 ment of the constitution is resorted to only in 

 extreme cases. In Scotland, a law with a similar 

 object was passed in 1701. 



After this brief sketch of English law, it is un- 

 necessary to describe that of Ireland, which is in 

 most respects copied from it 



LAW OF SCOTLAND. 



In its earliest form the law of Scotland bears a 

 close analogy to that of England, and of the other 

 Teutonic nations of Northern Europe. Amongst 

 the external causes which modified it at a more 

 recent date, two are the most important : the 

 intimate connection which subsisted for several 

 centuries between this country and the continent 

 of Europe, more particularly France ; and the 

 union with England. First to the French con- 

 nection, we trace a large infusion of the principles 

 of the Roman civil law into the Scottish law 

 of marriage, of guardianship, of contracts ; and 

 the adoption of judicial arrangements peculiarly 

 French, such as the constitution of the College 

 of Justice on the model of the parliament of 

 Paris, and the institution of a public prosecutor. 

 Much of the legal and official terminology of 

 the law of Scotland, which seems mysterious to 

 English lawyers, is to be ascribed to the same 

 cause. The ouverture of the French Estates still 

 ives in the overture of the ecclesiastical courts ; 

 the English mayor and alderman, both familiar 

 :o our earlier statute law, became a provost 

 preVot) and bailie respectively ; the barrister is 

 an advocate (avocat), and the attorney a procur- 

 ator (procureur), and the like. Second to the 

 union with England is due the assimilation which 

 las already taken place, and which is (!.iily going 

 on, between the laws of Scotland and England. 



As in England, the law first became a matured 

 system under the influence of feudalism. Little is 

 cnown of the Anglo-Saxon, and still less of the 

 Celtic customs, which undoubtedly existed, but 

 have now almost entirely disappeared. The origin 

 and progress of feudalism in Scotland are very 

 obscure. The chroniclers attribute the foundation 

 of the system to Malcolm II. in the eleventh cen- 

 tury. It is more likely that, with the resort of 

 foreigners, Saxon and Norman, to the court of 

 the Scottish king Malcolm Canmore and his 

 sons, the system was gradually introduced. The 

 monarchs, who were ambitious of presiding over 

 a distinguished court, gave encouragement to the 

 Normans, to whom they granted large fiefs or 

 lordships ; and it was natural that they should 

 retain the same usages to which they were accus- 

 tomed in the country of their origin. The whole 

 of the Lowlands and part of the Highlands 

 became nearly as thickly adorned with Norman 



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