The Statesman.
London, England, 1820-04-03 00:00:00

OBSERVATIONS
ON

SOME DISTINCrIoNs HF.TWF.EN THE ENGLISH

AND SCO'rfltill SYSTEMS OF 1.W..1
(moll sal)wsx's LANDoN m.i.GAztsr.)

While the isitereenras Isetweee Ragland and Scotland
has almost entirely assimilated the language, manners,
:oil habits of life of the two countries, and is vs-sidle
annihilating mei their 'untold windier& it is certainli
somewhat silgular 'list, in their laws and civil institti-
I:JIIA, they s!'ul3111 still be almost as far from air appa-
ls-tot approximations as when they were rivalr in the
tied, and that the idea of such approalusatiun should he
held almost in abhorrence on both sides. Whatever
may be the effects of this distinction upon the rights of
indiviakoals in either emintre, it would went that any in-
cuilYeafience arising frotn it Is held trifling compared tu
ht effects dreaded from a sinioo of the two systems of
law. A recent manifestation of the dislikes. which we
have allnded, on the part of our northern neighisonra.
?•as led us to .t consithration of the subject; sod it is •
our intentiou, in the neur4e of the followieg ohserva-
Oons. cursorily to examine a few of the leading points
u. difference bete vets the Fuglish Laws and the r of
s, +Aland, in the viers ut ascertaining, to a certain exteut
at least, upon which side the preference, which each um
lion professes for its own, is most justifiable.
The criminal law, as the most interesting. first de-
l/tends oar attention. Crime is equally obnoxious to
the leetslarttre caotories; hot three are
4:1 fe:tittritaittirrs peculiar to ray!;—(as in I:tiriaturi the
commercial character)—is huh render certain crimes
yore particularly the object of 'relation. repression.
'ffie laws of a kingdom united under one goternment
and coostitution, cannot differ in regard to what is, or
i, nut, erimina!, and caeotot allow sit any material dis-
tinctions in the api'ortionment of punishment to crime:
Seoriand, bon ever, the complexion of the general
• riminal law is tem Is altered by the power given tu the
J-tie, of apportioning the plintslitneet to the offence:
aad this power is attended with the most beneficial con-
septi-nres to the character of the law ; for criminals
Lying judged by the peculiar atrocities attending the
commission of crime, and e cowry, every circumstance
of mitigation being taken into account in passing sen-
tence. the tii.treear.l or positive enactment, which is in-
s +bred in the English lc-artier of condemning without
the intention of executing, is wholly avoided. Thus the
law is strictly held in Scotland ; hnt we cannot deny
that it is almost completely destroyed in knglated by
ik- habitual non execution of its most solemn decrees.
The few distinctions, before the Union, in the laws
r-lating to crime, molt as that of Scotland declaring fire
firing coal 'tenets, assassination, and some other
mem, to he treason, are almost all done away by the
s• it utes of the United ; and it is to the mole
..: eiltninistering these loos, therefore, and to Ilse COW-
p .r.itive advantages to the arettscal and the public, of the
✓ s..ective forms of trial, that any remarks 'iron the
e:-inch of the subject must he chiefly directed.
The administration of the English criminal code is
justly celebrated for humanity, and for the securities
Insin oppression, afforded to the subject. The system
f requiring the crime mid its punishment to be strictly
yenned by statute, before it can be made the sub ject of
t 'lel, --the necessity of a previous opinion of the Grand
duty that the accusation is well.foundesl,—the extensive
s -ght of challenge of jurors, 'Hutted to the prisoner,—
the ad vantage given ahe +rimester e most trilling
error in the indictment,—aud the demand of unanimity
un the part of juries in their verdict, all evince a regard
far the interests of the accused, which merits the very
I ighest commeutiation. But, in comparing the mina-
Filtration of the criminal Laos of too commies, we
must hare in view the errata! +thief, is severally paid by
item to the interests of the accusers, er the 'amino'
as well as the accused ;—and we may reasonably doubt
si !tether the Scottish system of :Wowing the crimiui!
1 'ion to take es+gnizinie of every act in ihclf es ideutly
rositeal, although such act, or its punishment, should
be its 1:0 gray di tined by statute, lie not of more real ail.
s intage to '
the comitmeity at Large thAt Ihe English
sv tens of definite curate, and in the Hill equally humane
norards the offender. The evil is thus checked in the
outset, and the punishment, being at the discretion of
the court, may 1w nu. re safely gentle than whets the
• rime lass become so I ..... mon as to require a statute to
r •press it ;—beside., the punishments appointed by sta-
tute are necessarily severe, and in new descriptions of
clime cannot easily be made applicable to the varying
cases that must occur.

In lieu of the (frau I Jury of England, which, as our
r..atlers know, is consposed general's- of a number be-
t.. eeu twelve and twenty•four of the chief men of a
county.—twelve of whom mast agree in finding a true
MlL—the Scotch have a public prosecutor, the Lord Ad-
vucate, upon whose single discretion offenders are ar-
raigned, and at whose instance they are prosecuted.
The question at issue between the two systems npon
this point, as regards the accused, seems to be, whether
hr is more I kely to have a fair precognition (to nse an
apt Scots law tents) of his case, from twenty-four neu-
tral men, than frosts one individual of rank, a servant of
the crown. The argument would extend to much
greater length than the necessary limits of this article
will allow ; but we have the authority of Mr. flume, in
1,,s Treatise on Crimes, for asserting, that, in practice,
the Scottish system of accusation has not only been at-
tended with no evils, but that to that system is owing "the
singular and coustan! moderation which has prevailed
time out of mind in the administration of this part of
üblic justice." As regards the interests of the commit-
s ity,—when we state that, by this plan of arraigning,
the private party injured is, to every case, entirely re-
-1 eyed of all rape:ice or prosecution (a grievance in
England, which many e f our readers have no duuht ex-
perienced), we conceive Oat we say enough to ensure
the preference in that respect to the practice uf Scotland.
The English tuode of insrannelling juries upon cri-
minal trials, is certainly more favourable to the r Goner
tnan that of Scotland. In England he has a right to
csallenge, upon cause, the: whole array of seventy-two,
and a right of peremptory challenge to thirty-five of the
number, without ran-e assigned. As this regulation
aloes nbt, by its attention to the interest of the accused,
allect•in any way that of the 'midis., use do nut hesitate
to prefer it to the Scottish simile of impannelling, which
allows the prisoner no challenge at all, except upon
cause, and these only to the jury of fifteen chosen by the
Jade, from forty-five summoned. and presented by fives
by him to the prisoner. But we do very notch question the
superiority of t laepriefical benefits resulting to prisoners
from the English regalalon, when we consider that,
except for treason, a prisoner has not, and by outled
law cannot hare, the assistance of 4:mussel its his defence
upon the issue of guilty or not guilty; whereas, in
Scotland, he is not only entitled to this assistance upon
the whole matter of faw and of fact, but the Jutitfes
bare the power. by statute, of compelling one or more
remisel to defend hint. The same observation applies
to the advantages to a prisoner from errors in the indict-
ment, which, though perhaps not allowed to the same
camas*. in Scotland as in England, are nevertheless
much owe likely to be discovered and followed up by
the legal aid Which is thus atorded him.
With regard to the -unanimity of juries, our limits
grill ant allow us-ti mails, to the ektent which it re-
quiets. No 'WOW Iltaess b encases of that distinction
a the Iliegileh free the &Offish erten) of civil Juni.-

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