L A W. 



659 



L. if he answers " by God and my country," the trial shall 

 "" ~^ proceed ; but if he refuses to answer in these words, or 

 stands obstinately mute, conviction as in the case of re- 

 fusing to plead will follow. 



The old methods of trial founded upon supersti- 

 tion, are now superseded by the trial per patriam, or by 

 jury ; and by the peers of Great Britain in the court 

 of parliament, or in the court of the lord high stew- 

 ard. 



Proof must 10. In all cases of high treason, petit treason, and 

 Why it- misprison of treason, and offences against the coin of 

 ess. the realm, two lawful witnesses are required to convict 

 a prisoner, unless he shall willingly and without vio- 

 How many lence confess the same. But in almost every other ac- 

 cusation one -positive and unobjectionable witness is 

 sufficient. 



11. If the jury find the prisoner not guilty, he is then 

 for ever quit and discharged of the accusation. But if 

 the jury find him guilty, he is then said to be convicted 

 of the crime whereof he stands indicted. 



After trial and conviction, the judgment of the 

 court regularly follows, unless suspended or arrested 

 by some intervening circumstance, as the benefit nf 

 clergy, which is a molified remnant of Popish abuse. 

 After conviction, if for dergyabie offence, the culprit, 

 instead of burning in the hand as formerly, is either 

 transported, or employed for a definite term upon some 

 work of public utility. By the same privilege, the of- 

 fender regains the possession of his lands as if he had 

 never been convicted ; but upon ft second conviction of 

 any dergyabie offence, he can have no benefit of cler- 

 gy. All clerks actually in orders, are discharged on 

 praying the benefit of the statute without any infamous 

 panubnent. and this at often as they offend. And all 

 lords of parliament and peers of the realm shall be dis- 

 charged in like manner for their first offence. 



13. Judgment immediately follows conviction for 

 those crimes which are either too high or too low to 

 to included within the benefit of clergy ; but before 

 jndsnMBt is passed, the prisoner is a -keel whether he has 

 anr thing to oier why judgment should not be award- 

 ed against him ? If he has nothing to offer, the court 

 must pronounce that judgment which the law has an- 

 nexed to the crime ; a consequence of which is attainder, 

 hereby man becomes dead in law, his real and per- 

 sonal estate is in some cases forfeited to the king, and 

 if attainted for treason hi* blood becomes corrupt ; but 



if the culprit dies Lefore he is attainted, neither forfei- Law. 

 ture nor corruption of blood takes place. v ~ 'V' 



14. Judgment may be reversed, 1. By matter dehors Reversal of 

 or foreign to the record, without a writ of error ; as judgment, 

 where the judgment was given by persons who had no 



good commission to proceed against the person con- 

 demned. 2. By writ of error, which lies from all in- 

 ferior criminal jurisdictions to the court of King's 

 Bench, and from the King's Bench to the House of 

 Lords. 3. By act of parliament. 4. By the king's p ar don. 

 pardon, which may be either absolute, commonly called 

 a free pardon ; or conditional, as that the convict shall 

 be transported, or undergo some other species of pu- 

 nishment inferior to that to which he has been senten- 

 ced. Reprieve is only a temporary suspension of the Reprieve. 

 execution of judgment for some supervening or equi- 

 table cause, as pregnancy, insanity, &c. 



15. The execution ef judgment must in all cases be Execution 

 performed by the legal officer, the sheriff, or his depu- of judg- 

 ty, and in strict conformity to the terms of the warrant 



of execution. 



The following are the most approved inrtttutiana* 

 ry writers on tjje law of England: Coke's Institutes 

 of' the Laws vf England, with Notes, by Hargrave and 

 Butler, 7 vols. 8vo. 1801). Woodeson's Systematical 

 f Vr ic of the Lams of England, 3 vols. 8 vo. J 792. Wood's 

 Institutes of Do. 1772. Sullivan's Lectures on Do, 

 quarto, 1 775. Wynne's Euiiomiis, or Dialogues concern- 

 ing the Law and Constitution of England, 4 vols. 8vo. 

 1774. And above all, Blackstone's Commentaries on 

 !)/. with Mr. Christian's Notes, 4 vols. 8vo. latest 

 edition. To which may be added, De Lolme On the 

 Constitution of England; and the late Professor Mil- 

 lar's Historical Vtevi nf the English Constitution, from 

 the time nf the Saxons to the Revolution 1688, with Dis- 

 sertations connected with the History of the Government 

 from the Revolution to the present time, 4 vols. Svo. 1803. 

 Besides what the reader will find in some of these au- 

 thors on the subject of crown or criminal law, he may 

 further consult, Male's Pleas of the Crown, with Notes 

 by Mr. Dogherty, 2 vols. Svo. 1 800. Hawkin's Do. 

 with the Additions and Notes of Mr. Leach, 4 vols. Svo. 

 1795. Foster's Reports and Discourses on some branch' 

 etofthe Crovm Law. Leach's Cases in Crown Law,2vo\s. 

 Svo. 1800. And East's Treatise of the Pleas of the Crown, 

 vols. i. and ii. (being all yet published) Svo. 1803. 



PART IV. OF THE LAW OF SCOTLAND. 



Law I > present ? a view of the law of Scotland we shall 



id. retain, M nearly as the genius of the two systems will 

 ^"~<~""' wlrait, the distribution observed in our abstract of the 

 law of England. We will only remark, that the law 

 relating to the king, parliament, Ike. or what is com- 

 monly understood by the pulilic law of the realm, be- 

 ing in most respects the same in both quarters of the 

 iolarid, we shall here touch upon it only in so far as 

 there is any peculiarity in the law of Scotland, refer- 

 ring our renders to Bonk I. of the foregoing Part, and 

 I* we several ankles distributed under our general al- 

 plul.t 



Law*/ 



cmhnrf 



part' 

 oSMry or 



r I 



partly OH- 

 IMUry or 



INTRODUCTION. 



Sources, or component Parts, of the Lan of 

 <md. 



1. The municipal law of Scotland like that of Eng- 



land, and indeed of all other countries which have any Law 

 fixed institution*, consists partly of statutory or written of Scotland. 

 law, which has the express authority of the legislative *""""/"" * 

 power ; and partly of customary or unwritten law, which 

 derives force from the presumed or tacit consent of that 

 power. 



2. Under the statutory or written law is compre- Written 

 hemled, first, Actt of parliament, not those only which law, acts of 

 were made in the reign of James I. of Scotland, and parliament, 

 from thence down to the union with England in 1707, 

 but such of the British statutes enacted since the union 

 as concern this part of the united kingdom. 



:i. The remains of the ancient written law of Scot- R eg j aln 

 land were published by Sir John Skene, clerk- register, Majesta- 

 in the beginning of the last century, by license of par- tern, 

 liamcnt. The books of Regiam Majestatem, to which 

 the whole collection owes its title, seems to be a system 

 of Scotch law written by a private lawyer at the com 





