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 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 563 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 This writ must be forth the delivery of these important documents. 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. + Ibid. It is a rule of Scottish evidence, that the prisoner can only be convicted on the testimony of two witnesses, or of one witness, supported by such a chain of circumstantial evidence, as is obviously equal in amount to the evidence of another. In purely circumstantial evidence, a much clearer chain of circumstances is requisite to convict in Scotland, than is considered essential in England. On the conclusion of the evidence on both sides, the jury are addressed by the crown counsel, and also by the counsel for the prisoner, who is always entitled to the last word. The prosecutor is never allowed to reply; but whether in arguing points of law to the judge, or matter of evidence to the jury, the prisoner's counsel is heard last in defence, which gives him an immense advantage, and the legal subtilties of his counsel frequently so embarrass the minds of the jury, as induces them to return a verdict of NOT PROVEN. If the jury cannot agree on their verdict before the court adjourns, their verdict, which is usually oral, must be reduced to writing, and delivered to the court sealed, and no explanation or amendment can be admitted after it is opened. And if it does not in every respect tally with the indictment, the whole proceedings are null, and the prisoner entitled to an acquittal; and in practice this occurs so frequently, that a written verdict is considered by the bar as affording no inconsiderable chance of a technical error, and consequently of the prisoner's escape. But whether the prisoner escape by this technical informality, or be duly acquitted, the benefit is the same to him: he can never be again tried or imprisoned for the same offence, not even by an alteration in the mode or name of charging the offence.* Previous to moving for sentence, the king's advocate has the privilege of "restricting the libel," to any punishment short of death, or of entering a writing upon the record, which disables the judge from pronouncing a capital sentence. This important privilege is not confined to the lord advocate and his deputies, but is enjoyed also by private prosecutors, when pursuing with the advocate's concourse. It is thought that this necessary and important power is most appropriately intrusted to the king's advocate, whose knowledge of the case is more minute and circumstantial than that of the presiding judge-is acquainted with the comparative atrocity of all the cases from the same district-with whose duties, as acting for the crown, this power seems to be more consonant,-and who holds a situation more amenable to the bar of public opinion, and against whom public censure or complaint may more fearlessly be directed. This is a power which can only be exercised in favour of the prisoner; it can only be abused on the side of mercy, but cannot become an instrument of oppression. Alison's Practice. In practice, however, many important cases occur, in which, though there may be reason to hope that the life of the prisoner will ultimately be saved, the lord advocate feels that it is beyond the proper line of his duty to restrict the libel, or when he feels that the act of mercy would come with more grace from the crown. In which case the royal mercy is still open to the unfortunate criminal; and in such case the presiding judge never fails to transmit such an account of the trial as ensures a conditional pardon. From the extent to which the lord advocate carries this power of restricting the libel, sentence of death is seldom pronounced without its being carried into execution. And accordingly the effect of a sentence of death on the audience, and the criminals themselves, is greater than those accustomed to the practice of other countries would imagine. Nevertheless, there are not, on an average, more than eight or ten persons executed annually in the whole kingdom. It has recently been enacted,* that no capital sentence shall be carried into execution in less than fifteen days from its date on the south side of the Forth, or twenty days if on the north side of that river; which affords time for the wretched criminal to make his peace with God, whose laws he has violated; and instances frequently occur, in which the prisoner, from the opportunity afforded him during that melancholy interval of collecting evidence in support of his petition for the royal mercy, is saved from an ignominious death, from which he would have no other chance of escape. In Scotland, prisoners have the power of forcing on their trials; and consequently shortening the duration of their confinement. When committed to gaol, the act of 1701, which is the Scottish Habeas Corpus act, ordains that he shall be furnished with a copy of the warrant for his being committed, and the petition on which it was granted. Which documents acquaint him with his accuser; the grounds of the charge preferred against him; and, besides, the means of establishing his innocence. But if he is desirous of forcing on his trial after being committed, the same statute entitles him to take out letters of intimation against both his accuser and the lord advocate. The purport of these letters is to demand that his trial shall take place within the period fixed by the act of 1701; under certification, that if it be not done, he shall be set at liberty. This proceeding costs about two guineas, but is seldom exacted from indigent prisoners. On the execution of these letters, the lord advocate is obliged to indict the prisoner within sixty days, and to bring the trial to a conclusion within forty days thereafter. This obliges the trial to be conducted at Edinburgh, in the intervals of the circuits. If the lord advocate neglect to serve the indictment at the expiration of the sixty, or the trial be not 1 Wil. IV., c. 37. |