"tual, an act of the twelfth year of her late "Majesty, Queen Ann," intituled, “An act "for the preserving of all such ships and goods "thereof, which shall happen to be forced a"shore, or stranded upon the coasts of this king"dom, or any other of her majesty's dominions ; "and for inflicting the punishment of death on "such as shall wilfully burn or destroy ships. "It is enacted, if any owner of, or captain, mas

ter, mariner, or other officer, belonging to any

ship, shall wilfully cast away, burn, or other"wise destroy the ship, or direct or procure the "same to be done, to the prejudice of any per"sons that shall underwrite any policy of insur

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ance thereon, or of any merchants that shall "load goods thereon, he shall suffer death."

As the act of the 12th Queen Ann, is expressdeclared to extend to the whole of her majesty's dominions, there can surely be no question that the act of the 4th Geo. I. which was enacted for the express purpose of enforcing the act of queen Ann, and for rendering it perpetual, must also extend, not only to Scotland, but to every other part of his Majesty's dominions also.

Another act passed in the 11th Geo. I. for enforcing and explaining the former act. In this second act, the enacting clause describing

the crime, and the punishment ordained to be inflicted upon those who shall be guilty of it, is a mere repetition of the former act already recited; and as it is not declared in this last act, that it shall not extend to Scotland, it must necessarily be understood to extend to Scotland also.

But in the year 1751 a man of the name of Lampro was indicted upon these acts, and brought to trial before the judge admiral in the high court of admiralty in Scotland. When the judge admiral in his interlocutor upon the relevancy of the libel, found that these acts of the 4th and 11th of Geo. I. did not extend to Scotland, and therefore refused to try him upon them.

In the year 1784, two other men, named John Maciver, and Arch. Macallum, being accused of committing the same crime, were indicted upon these acts, and brought to trial before the same court, but before a different judge admiral than the one who presided in that court upon the trial of Lampro. The council for the prisoners in their pleadings against the relevancy of the libel, stated the decision given by the former judge admiral in the case of Lampro, as a case in point. The judge who then presided in this

court being, however, of a different opinion from his predecessor; pronounced an interlocutor, finding that the acts of the 4th and 11th of Geo. I. did extend to Scotland. The public prosecutor having restricted the whole of his libel to an arbitrary punishment; the trial went on, and the judge pronounced judgment upon the prisoners. Against this sentence the prisoners presented a bill of suspension to the court of justiciary; upon which, this supreme court pronounced the following judgment: "Find "the statutes of the 4th and 11th of Geo. I. "libelled on, do not extend to Scotland; but find "that the libel as laid upon the common law, "was relevant to infer the punishment ordained "to be inflicted upon the prisoners, by the judgment of the judge admiral."

It is evident that in this judgment pronounced by the Lords of justiciary, these judges have nct only assumed to themselves the legislative power of explaining the laws enacted by the king, lords, and commons of Great Britain, in parliament assembled; but that they have also arrogated to themselves the power of repealing these laws, in so far as respects Scotland, finding that his Majesty's subjects in that part of the united kingdom are not amenable to them.

House-breaking, attended with theft, is, it is well known, a capital crime. And the legislature has ordained, that all those who are guilty of this crime, shall suffer death. But this punishment is but very seldom inflicted upon those who are convicted of this crime in Scotland, of which the records of the circuit courts of justiciary will afford ample testimony. The King's Advocate it seems, still possesses officially, some portion of that dispensing power with which certain official members of this learned society was originally invested with by the Pope of Rome. And, when any part of the statuary punishment is proposed to be dispensed with, as a matter of grace and favour to any criminal in Scotland, the concurrence of this officer, is, it seems necessary, to enable the judge to bestow this act of grace upon the prisoner; and a particular mode of trial invented for the purpose, is, it seems, necessary to be observed.

The public prosecutor makes out his libel against the prisoner in the usual stile, stating the crime which he has committed, and concluding for the statuary punishment. After the jury are sworn, the libel is read over as usual, and the prisoner is called upon, as usual, to say, whether he is guilty or not guilty. When he,

in obedience to the instructions which he had previously received from his counsel, pleads guilty. Upon this, the public prosecutor rises, and informs the judge, that, in consideration of the prisoner's candid acknowledgment of the crime which he has committed, and on account of other circumstances, he restricts his libel to an arbitrary punishment; that is, to any punishment which the judge may be pleased to inflict upon him, except death. Upon this the judge, addressing himself to the prisoner, praises the lenity which his Majesty's Advocate has exercised towards him, in thus restricting his libel, whose power to do so he does not presume to call in question; he tells him if the libel had not been thus restricted, and if the crime with which he is charged, had been proved to the satisfaction of the jury, he must of necessity have pronounced sentence of death upon him. The jury are then directed to retire and make out their verdict, which, in consequence of the prisoner's judicial confession, can be no other than guilty. This verdict being returned, the judge proceeds to pronounce judgment. If the theft which he has committed is of considerable value, he will perhaps banish him to his Majesty's plantations abroad for a certain number of years, and sometimes