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Hume thinks it probable, that the act of James VI.,* which allows the lord advocate to pursue, though the parties themselves "be silent or wald utherways agree," is to be understood of that form of prosecution only, wherein the individual must have insisted; namely, by summons or criminal letters, bearing the name of a complainer, and citing the accused to a particular day of trial. That statute, however, certainly added to the advocate's consequence, who now openly sustains the person of his majesty, and wields the law in this interesting department; and it is said that soon after the passing of the above act, in the trial of Arnott of Woodmiln, in the year 1598, he was marked for the first time in the record under the title of lord advocate, which title he has ever since retained.

The right of prosecution was vested alike in the office of treasurer, as well as of the lord advocate, by the fore-mentioned statute of James VI., for it was one of the objects of that statute to secure his majesty's interest in the fines, confiscations, and forfeitures occurring on those occasions, against the collusive dealings of the pannels and private accusers, to the disappointment alike of the royal revenue, and the interest of public justice. But Mr Hume thinks there is not any precedent on record of a prosecution at the treasurer's instance. Neither does this high privilege belong to his majesty's solicitor-general, nor to any other of his law officers, jure officii; though there is nothing to hinder his majesty, at least when there is no lord advocate, from throwing such a power into the commission of the solicitor-general, or authorizing that officer, or perhaps any other lawyer, by a special letter, to pursue and insist against criminals in like manner as the lord advocate may do. In fact this was done in 1713, in consequence of the death of Sir James Stuart, then lord advocate. It appears that the office of lord advocate has been vested at the same time in a plurality of persons; for, in the trial of John Young, Sir William Oliphant and Mr Thomas Hope are both marked in the record, as "advocates to our soveraine lord."

After what has been said regarding the offences for which the lord advocate may prosecute, it is almost unnecessary to add that his privilege is hardly subject to any limitation. For all those crimes which are properly of a public nature, such as treason, sedition, blasphemy, riot, incest, being an Egyptian, harbouring of thieves, smuggling, forestalling, and the like, he is the only prosecutor; because the reasons for vindicating these wrongs a general and an extensive kind, wherein all the lieges have indeed a certain interest, but as members only of society, and not one of them more than another. As to those offences, whether high or low, for which the injured party may also prosecute, and whether he be, or be not disposed

are of

* 1587, c. 77.

to concur in doing so: still the lord advocate has a right by the act 1587, to complain of them in his majesty's name, as guardian of his laws and of his people's morals, and to insist for the due chastisement of the offender.*

The lord advocate, therefore, is the public prosecutor for crimes, all over Scotland; and, in one sense, independent of the party injured, and it is absolutely under his own management and disposal, as to the seasons and occasions when, and the mode wherein, or the effect to which he shall use his power. In none of these points can any individual, not even the supreme court itself, pretend in any way to control or superintend him: indeed, to allow of the court's interference, would be in reality to make the judges prosecutors, (contrary to every idea of justice,) who ought to be pure, and ignorant of all previous impressions of the case. But if the lord advocate is deficient of the due discharge of the duties of his office, the proper channel for redress is by petition to his majesty in council, at whose pleasure the office is held, and who will order an inquiry into the grounds of such complaint.

The lord advocate is also master of his instance, so that even after he has brought his libel into court, it rests entirely with his own discretion, to what extent or effect he will insist against the culprit; and he may freely, at any stage of the process, before a verdict is returned, nay after it has been returned, but before judgment has been pronounced, restrict his libel to an arbitrary punishment in the clearest case, even that of a capital crime. Established practice surrounds the lord advocate with peculiar and great privileges: he is not required to find security for reporting or insisting on his criminal letters; nor can he be called on to take his oath of calumny; nor, in the case of a verdict of acquittal, is he liable in any of the statutory penalties, for rash and calumnious accusation. Nevertheless, that the subjects may not be altogether deprived of security against such wrongs or the means of reparation, the statute 1579, c. 78, has expressly ordered, that in cases where the king's advocate alone prosecutes, the statutory penalties shall be paid by his informer; which infers the necessity of the king's advocate to name his informer, that the injured party may have access to him for the recovery of damages.†

To enable the lord advocate to discharge the duties of so important and laborious an office, he is empowered to name deputies to act in his name during his absence. These are the solicitor-general, and three advocates-depute, to which a fourth has been added to attend the winter circuit at Glasgow. His lordship is responsible for their proceedings, but in all cases of difficulty they are regulated by his advice.

* Hume on Crimes, ii.

Ibid. ii. chap. v.

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deputies may prosecute in any court in the kingdom, and are not liable for expenses, as they act in the name and on behalf of the crown, which, by the law of Scotland, neither pays nor claims expenses in any criminal case whatever. These public officers generally prosecute before the high court of justiciary, the powers of which extend all over the kingdom, and whose circuits travel twice a-year through its most populous counties. When a crime has been committed in any county or burgh of Scotland, such as murder, robbery, rape, fire-raising, housebreaking, theft, &c., information is immediately lodged by the injured party, with the procuratorfiscal of the burgh, county, or district where he resides, who makes out a written complaint, which must be signed by the informer in terms of the act of 1701. And in no case can any magistrate commit a prisoner without this signature; and, as mentioned above, if the accusation be groundless or malicious, the informer becomes liable for the whole damages. Should a magistrate commit without that signature, or just grounds, he himself becomes liable for the penalties. This committal, in the first instance, is for further examination, in order to give the injured party time to collect his evidence. It has been decided, that this commitment cannot legally extend beyond seventeen days, without subjecting the parties occasioning it to damages and expenses. When the evidence has been collected, it is reduced to writing, for the purpose of submitting it to the crown counsel, and, if necessary, as serving for their brief on the trial. This duty devolves on the procurator-fiscal, in the presence of the sheriff, magistrate, or justice, before whom the prisoner is taken; and they are responsible for its accuracy. This is called a precognition, and if there appear sufficient grounds for committal, the sheriff, &c., grants a warrant accordingly. Immediately on its signature, the prisoner may apply for bail, if it is a bailable offence: by statute* the justice must determine within twenty-four hours whether it is a bailable offence, and also fix the amount of the bail.

After commitment, the precognition is immediately forwarded to the crown counsel in Edinburgh, and laid before the advocate-depute for the circuit where the crime was committed: if the case is clear, he decides himself on the prosecution; but if it is of importance, or is attended with difficulties, he takes the opinion of the senior law officers of the crown; when, in either case, an order is immediately given to detain the prisoner for indictment, or forthwith to set him at liberty. If the crown counsel order the prisoner to be discharged, he is set at liberty so far as the commitment by the crown is concerned. But the injured party may prosecute at his own instance and risk of damages with the lord advocate's

* 39 Geo. III., c. 49.

concourse, which the court will compel him to grant, but which in practice, however, is never refused.

If the crown counsel find that there is sufficient ground for prosecution, but that the case would terminate in a fine or short imprisonment, it is remitted for trial to the inferior judge before whom the proceedings originated. But if the crime appear to be more serious, and the evidence complete, the crown counsel direct the accused to be detained for indictment; and generally the same counsel who gives this direction, is obliged to prepare the indictment, attend, and conduct the trial himself. The crown counsel are paid fixed salaries, and have no interest whatever in increasing the number of prosecutions, but, on the contrary they thereby augment their own trouble. If they decline to prosecute when there is good evidence, their professional character suffers an irreparable injury, should the private party prosecute to a successful issue.

The advocates-depute are generally men about thirty years of age: the immense increase of criminal business, compared with the small amount of their salaries, rendering it impossible to find senior practitioners of any eminence, who will undertake the office. It has not, however, been found, * that this department of the public business has been either negligently or or 4 unsuccessfully conducted; and the greatest lawyers of whom Scotland can boast, have begun their career, and been trained in this school.

When the case is to be prosecuted by the crown, the proceedings are prepared and the trial is conducted at Edinburgh; and, if the case occurs in the high court, it is under the immediate directions of the lord advocate. If it is on the circuit, the indictment is prepared by the advocate-depute who has been appointed for that circuit. In the indictment the same minute and scrupulous accuracy is required which is exacted in an English prosecution; and many particulars must be added for the prisoner's information, which in their practice are not essential. In particular, not only the specific offence itself charged, but the mode in which it was committed, must be recounted with scrupulous accuracy; the place where the crime was committed must be correctly described by its name, parish, and county; all articles to be used in evidence, must be minutely and accurately described, and submitted to the prisoner's inspection previous to his trial; and a list of witnesses must be annexed to the indictment, containing an accurate description of every witness, by his name, profession, place of residence, parish, and county. The smallest error in any of these particulars, will exclude the prosecutor from the benefit of that article, or witness, at the trial. A copy of the indictment must be delivered to the prisoner by an officer, containing all these particulars, fifteen free days at least before his trial, with a list of the assize, and of the witnesses who are to be adduced against him. If there is any variation, except an

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unimportant clerical error, between the copy delivered to the prisoner, and the record copy of the indictment and list of witnesses, it casts the indictment. Before the prisoner can be called on to plead to the indictment, the prosecutor must produce written evidence of its delivery to the prisoner, with the list of witnesses and assize, by a written statement signed by the messenger and witnesses, or "execution," as it is technically called, setting forth the delivery of these important documents. This writ must be scrupulously accurate, and the least error in it entitles the prisoner to postpone his trial, and exposes the officer to the risk of censure or deprivation of office. If a witness declares in court that his name, surname, profession, place of residence, parish, or county, vary in the slightest degree from the description contained in the indictment, it excludes his testimony on that trial.*

The witnesses are not examined in Scotland in presence of each other, as is done in England. As soon as the trial commences, the witnesses are enclosed by themselves in a separate apartment; and it is sufficient to cast a witness, if he has heard any part of the evidence given by any other witness, or has had any communication with the prosecutor subsequent to his citation. The rule invariably followed in Scotland, of compelling the prosecutor to close his evidence before the proof in exculpation begins, gives the prisoner a greater advantage than is enjoyed in the English courts; because he has the benefit of knowing the evidence against him, whilst the prosecutor is almost always ignorant of the line of defence which he may adopt, and cannot produce farther evidence to counteract his defence.

The assize consists of forty-five persons, or three juries, summoned regularly in rotation, by the sheriffs of the counties. From this list the jury is selected by ballot; each prisoner having a peremptory challenge to the extent of five, and of any number, if he can show cause for their rejection. Prisoners are allowed counsel; and if they are too poor to retain them themselves, counsel are assigned them by the court, which duty no advocate is permitted to decline. If none are present, then the sheriffs of counties, who must be there, are obliged by the court to act as counsel. For many years the immortal author of Waverley, who was sheriff-depute of Selkirk, was regularly nominated to that office at the Jedburgh circuit; and his unrivalled talents, which have established a new era in fictitious writing, and astonished the whole world, were often gratuitously and successfully exerted in the defence of the humblest and most destitute prisoners. From the great competition at the bar, this duty seldom devolves on the sheriffs, as many young advocates travel the circuit, at a heavy expense to themselves, for the purpose of acquiring information and distinction in their profession.

*Alison's Practice, Preface.

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