has done on this occasion, is a conclusion, which cannot be drawn from this, any more than from the other cases that have been mentioned; and there is no authority whatever for the statement, that "it was not imagined at that time that he had any power to abandon an indictment otherwise than by motion to the Court." The other cases in the minute for the panel are not in point; but they serve to shew the practice, that diets may be deserted pro loco et tempore even after interlocutors of relevancy. Lord Advocate.-It is unnecessary, and it would be doing little justice to the argument, if 1 added one word to what has been stated. Mr. Drummond.—I omitted to observe, that the case of M'Kenzie, which Mr. Cranstoun quoted from Mr. Hume, vol. iii. page 16. seems to have been quite misunderstood. It obviously relates to a perfectly different question from any thing now before the Court. There the prosecutor moved the Court to desert the diet in absence of the panel, contrary to the great leading principle, that no proceeding can take place in absence except fugitation; and the Court continued the diet (as fugitation was not moved for), till the panel should have an opportunity of showing why he did not attend. Mr. Clerk. I am sorry it has fallen to me to answer the other side, for Mr. Cranstoun had an opportunity of considering the case: I had not. I have but a general recollection of what passed last day. But I shall submit a few observations upon what has been stated by Mr. Home Drummond. If your lordships think that the practice is of considerable importance on this point, I shall begin with offering some remarks upon the precedents which have been cited. Your lordships have heard quoted a great many instances in which the public prosecutor thought it incumbent on him to get quit of one indictment before he directed another to be served. You have a great number of instances of this practice by the most learned persons who have filled the situation of his majesty's advocate; and it seems to be the natural and necessary consequence of these opinions which your lordships have from Mr. Hume in several different passages of his work. I shall refer your lordships to that practice. It is one which has been discovered in consequence of a very anxious search into the records for more than a century. We have been told by Mr. Home Drummond that there has been no regular search into the records of Justiciary. I understood that these records had been very anxiously searched; and, whether so or not, I am entitled to assume that neither party can suppose there are any other instances in the records than those which have been laid before your lordships. These are sufficient, at least as specimens of the practice; and I must retain my private belief, that whether he is or is not entitled to say there has not been that sort of examination which may be properly called a search, yet that there was such a search as to satisfy your lordships of the general nature of the precedents to be found in these records. mode Assuming this, what is the result? Upon the one hand, you have a great many instances indeed of first indictments being abandonedthe diet being deserted-where the libel had been abandoned by the public prosecutor before the panel had pleaded-which we never disputed his title to do. We never hinted, that he has not as good a title to abandon as he has to raise and execute au indictment, if the panel has not been brought into Court, and parties have not joined issue. In a certain of the opinions of the learned persons who number of these instances, you have evidence and necessary mode of proceeding, because, conducted the business, that this is a proper by proceeding in that way, they put themselves to some more trouble than according to the This is a practice as to which there could be now recommended by my learned friends. no contradiction, for it is admitted, that, whatthe prosecutor may abandon the old, and raise ever is right or wrong in the present debate, a new indictment. This is a practice which can only show the opinion of the public prosecutors-most learned men-and also their opinion of the way in which the Court considered these matters. It is impossible you could have the judgment of the Court upon all of these points. What are the proofs? Except in one case, it is not pretended that the point was brought before the Court at all, so that there is no judgment upon it. And as to that case, all that was said was, that there was some conversation, but no record of it a conversation between the learned gentleman and one of your lordships. And though I attended every diet as counsel for the panel, I certainly do not remember that conversation: and that is all that is brought forward as a precedent. It is a jest to say it is a precedent. It is incumbent upon you, and you perform the duty as well as you can, to attend to the regularity of your proceedings; but where the two parties are both keen, zealous, and anxious, all the zeal of the public prosecutor on the one side to obtain justice for the public-all the acuteness upon the other side to state every thing for the defence of the panel, in so far as useful to him, it is natural for you to take for granted that every thing is right, if nothing is mentioned as being wrong. Therefore, if an objec tion be not stated on either side, and do not appear from any inspection of the record, I submit to your lordships, that to state a practice of this kind as being of any authority whatever, is one of the most violent attacks upon a regular system of law that I have ever heard of, either in this Court or in any other. I was counsel for Somerville. I dare say I attended to his interest as well as I could. He was anxious enough, I dare say, to escape convic tion of the crime of which he was accused-the | for your mentioning this circumstance. That crime of perjury. But, notwithstanding my shews there was great expense attending that situation, I certainly did not consider it of trial, and as there was great expense, Mr. that great eminence which the public prose- Somerville would naturally be averse to any cutor seems to think it was. I did not consider unavailing delay, which must have been attendmyself as acting as a great legislator upon ed by additional expense. the occasion. Nor did Mr. Somerville on the pillory think he was dispensing new law for the government of your lordships. What was done was done with consent of Somerville, and without objection. Your lordships watch over the regularity of proceedings-but if the panel consent to any particular measure, and your lordships do not observe that it is irregular, can that affect the proceeding in law, and a most important principle in law? What I apply to the case of Somerville may be applied to every one of the cases. If they could have produced one precedent-one case in which the panel, considering it to be necessary for his defence, or of any use to him, had opposed a proceeding of this nature, and you had overruled the objection, I should have considered that precedent worth all the rest upon both sides of the question. No such precedent has been produced. And because perhaps a hundred panels have been brought to the bar, and a few of them have allowed this proceeding without objecting to it, possibly without having an interest to state an objection, and possibly without being aware objections might be stated, as junior counsel are often for the panels, they cannot be considered as precedents. It may be for the interest of a panel that his trial should not be delayed; and instead of putting off the time of the Court with the objection, and remaining longer in prison, a panel may often wish his trial to proceed, where, had his counsel offered the objection, and supported it before the Court by argument, the Court would have given it attention, and seen its propriety and force. But a panel, by delay, may also incur further expense, to which he will naturally be averse. This person, Mr. Somerville, was not one of those mendicant clients, of which there are numbers in the Castle at this moment. He was not in the situation of the panel at the bar, whose counsel, from a sense of public duty, are putting him to no expense whatever. I, for one, am proud of my situation, and every one of my learned friends entertains the same feeling. Somerville was put to a great deal of expense in the management of his case; and how could it have served him to delay his trial from day to day? It would not have availed him. There were Mr. Fullerton and myself, and perhaps another counsel at the bar at his expense. There is no doubt it was his wish to go to trial upon that day. Lord Justice Clerk.-I see from my notes you did move the Court to allow the expenses of preparing for the defence of the panel. Mr. Clerk. I feel great obligation to your Lordship, and so must my client the panel, VOL. XXXIII. As to the other cases, it has been remarked by the prosecutor, that we say it was for the interest of Somerville to go on with the trial, although a conviction followed; and then he gave us a most facetious contrast, indeed, between this case and another, in which it was not for the interest of the panel to state the objection, because the libel was not well founded, and the panel was acquitted. In this way, says my learned friend, whether convicted or acquitted, they find an interest not to state the objection. I apprehend, such shifts as this will never stand in your lordships' minds in place of solid argument; for, in the course of a century, I think it is strange a panel should not find it for his interest to wave such an objection as this. Delay is generally inconvenient, and an expense to him; he has the advantage of the list of witnesses to be brought against him being given in the indictment; and he does not know what other witnesses may be brought forward under a new indictment; and it is utterly impossible to account for the desires and wishes of men in such circumstances. One thing is certain, that, in the consideration and preparation in all cases past and to come, it has been and frequently will be the desire of the panel to go on without stating a dilatory objection. I apprehend, that in the present case you will not particularly inquire into the motives of the panel for stating the objection. He seems to be in a dangerous state-whether you will find against him or not, it is impossible to say; but he is in a dangerous situation, and I cannot be called upon to explain the particular motives for wishing for the delay; and, therefore, I submit to your lordships, without making more remarks upon the particular cases which have been adverted to on both sides, that these proofs which were pleaded on by the counsel for the Crown are not such as should have the least effect in regulating the law of the case, more particularly as the proofs are against the Crown. But, the principle of the law is still more against them. Let us consider what is mentioned by Mr. Cranstoun, the proofs of single judges refusing bills of suspension. A panel was tried in an inferior Court, and subjected to an ignominious punishment, of which he wished to get quit altogether or have it miti gated. In numerous cases persons so accused presented bills to this Court, and they were refused by single judges, some of them the first judges that ever appeared in this country. Lord Braxfield was one of them, not to mention other names. Is it possible to conceive a case, where a man so convicted had not an interest to object to a single judge refusing his bill? It is impossible to dispute that the prac S | put himself, therefore, to less trouble with respect to those other pleas of self-defence, gross provocation, and the like, which might serve to exculpate him, or to alleviate his guilt, if he were tried on an ordinary charge of beating, or of murder." Then he says, "The prosecutor, too, cannot well say that he suffers any wrong in the enforcing of such a rule; since, for ordinary, he has the means of being accurately informed of the fact before raising his libel; and if he have any doubt of the proper under all the several denominations which may eventually be found to suit the case. Nay, there is still no hardship, though he discover the weakness of his case after the execution only of his indictment, since at any period before remitting it to an assize he may abandon this faulty libel, and raise another in more correct and better form." Does Mr. Hume or not correct his own errors, as they are supposed to be in the other passage he had written, as to the power of the prosecutor to abandon his libel? There is not the least hint of it. The passage quoted by my client is that which must be understood as limiting this general passage as to the power of the prosecutor. That he may abandon the libel there is no doubt, especially before the indictment is pleaded to; nay, after it, in a particular manner, there can be no doubt; for he has only to move the Court, who will do so, unless there be apparent injustice in doing so. Mr. Hume says, first, he may abandon, and, in the second place, that he has it not absolutely in his power-that it is inaccurate in point of style to say that he does it at all-for that it is the Court in cases whether public or private. The Court could keep him to the libel if proper; and either force him to desert simpliciter, to the effect of having no right to bring a new trial, or hold him to the libel already pleaded to. This is Mr. Hume's fair meaning. So much has been said upon this, that I shall not trouble you with any more remarks upon the power of the prosecutor to desert his libel. I may assume, he has no power without the authority of the Court. He has just the same power as a man in other instances to do what is lawful, but only in sight of the Court. Therefore any notice from him that he was to do such a thing might be very good notice that he was to move the Court, but could be nothing further. He had power to give notice of that, and to do it; but still it was only a notice of intention, and it is not a measure till the Court interpose for the purpose. This is the sum and substance of what can be extracted from Mr. Hume on the subject, the authority to which you have been accustomed to refer in all cases. tice was against the right principle, and the interest was against the practice. Yet when the point came to be tried, you were of opinion, that the practice must yield to the principle of law, as it appeared to your lordships. With regard to the principle of law, a few observations-It occurs to me, in the first place, that no attempt can be more desperate, or more completely unfounded, than the attempt made by the Crown counsel to convince you that the public prosecutor has power to abandon an indictment after a panel has plead-style of the crime, he may lay his charge for it ed. It is directly in the teeth of those authorities which we quoted to your lordships, coming from that great master of the law to whose dicta your lordships give great attention. And how is that opposed? They cannot pretend to say that we have misconstrued this authority, which is positive and express, and cannot be explained away. But they have recourse to other dicta of Mr. Hume as being inconsistent with this. Upon looking to these, I have to express my astonishment they could have been stated as inconsistent. The principal of them, page 305, first vol. of Trial for Crimes, and third vol. of the whole work, where Mr. Hume reasoning upon another point altogether, says, " But what shall be said when the fact which is related in the subsumption of the libel, though short of the crime charged in the major proposition, amounts, however, to a lower crime of the same class; as in the case of murder and culpable homicide; hamesucken and assault; theft and swindling; notour and simple adultery; and some others? In these circumstances, and on finding that his story does not support him in his charge of the higher denomination of crime, may the prosecutor nevertheless maintain his process, restricting his charge to the lower species, and limiting his conclusions as to punishment accordingly? This is an important question; and some diversity of opinion there has been among lawyers about it. Some have thought that there is a violation of that decorum and propriety so fit to be observed in all criminal proceedings, if any one shall be tried on a libel (the fundamental writ of the whole process) which er facie, and taken as it is laid before the Court, is a disjointed, mis-shapen, and inconclusive composition; and that this consideration alone is a good reason why no such accusation ought to be sustained. But further, say they, to shew the prosecutor any indulgence in this article, is attended with a real hardship to the panel, who prepares for his defence against the libel as laid; and who knowing that he is secure on the ground which is taken there, will naturally be less diligent or solicitous in providing for his exculpation, in regard to any inferior degree of guilt. One, for instance, who is accused of parricide, and who knows that the person he killed was not his father; or who is accused of hamesucken, and knows that the assault was not made on the complainer at his nome; may naturally conclude that this blunder is of itself sufficient to save his life; and will As to Mr. Burnet, he either is wrong, or perhaps corrects himself in another passage; and he would have admitted himself that that passage was to be understood sub modo, and that the Court should consent. Let us see where the rest of the argument lies. Assuming that the public prosecutor has 1 no power, without the act of the Court, to abandon the libel to which the panel has pleaded, it occurs to me that a most ready way to this question is to consider the case of Charteris; what was done in that case; and what is to be inferred from that case. In the case of Charteris four indictments were raised; and my learned friends were pleased to assert (they are better acquainted with these ancient times than we), that it was at that time a practice to raise many indictments. Many of the practices of that period are better honoured in the breach than the observance, and many of them are so by the present Court. Notwithstanding this, it was said to be the practice in those times to raise a whole bunch of indictments at the same time. This was done in the case of colonel Charteris, who said he should not be obliged to answer to the whole. No, but answer to the one read in Court, and you may plead to this indictment. You were told the question was, whether the prosecutor could insist in four at the same time. I see no such question there. On the contrary, it is stated by Mr. Hume that some of these indictments were called for other diets. But, be this as it may, when Charteris was told he had only to plead to this indictment, what did that force the public prosecutor to do? Whether he was attempting to carry on four at the same time, or one, is of no consequence; for the Court forced the others to be abandoned. Why was the public prosecutor obliged to give up these indictments? upon what ground? Why was not he allowed to go on with one, suspending over the head of the panel all the others? Why did not he say, he wished this, and the Court allow it-the Court saying, "only answer one at a time, and no harm to suspend the others over your head: They are not called now, and may never be called: If you are acquitted, you cannot be tried again for the same offence: They are for the same offence, and therefore there is no harm in having these all against you." The Court would not listen to this. The prosecutor was obliged to give up the indictments, and then Charteris pleaded. That is a fair state of the case. Now, why did the Court oblige the prosecutor to give up the indictments before the pleading? That is a home question; and no answer has been given - to it. The answer is given by Mr. Hume, and a most satisfactory answer it is, and he repeats it again and again in different passages. The reason was oppressing the panel in the management of his defence. The Court ought not to allow that, and why? Because contrary to the rules of justice, which are paramount to all other rules in this Court. We were told, that an act of parliament is of greater authority than a law of practice of the Court. I apprehend a judgment of the Court, proceeding upon rules of justice, is stronger than any other precedent. I am entitled to assume, that this was considered by the Court as the justice of any case in which more than one libel would be hanging over a man's head while pleading. Mr. Cranstoun put a question, would it have been competent for the prosecutor, after abandoning these, to have served them over again, or new ones to the same effect? If any public prosecutor had dared to do such a thing, the Court would have taught him his duty. If any public prosecutor had been daring enough so to tamper, and attempt to evade the justice of the Court, in a manner which would have been so grossly shameful (I am not intending to apply any strong epithets to the proceeding before you: I think it is a mistake, and a natural one, on the part of my learned friends, to act as they have done): but in the case of Charteris, it would have been considered a gross contempt of the judgment of the Court. What has been done in the present case? It seems that a public prosecutor cannot serve four libels at once, to the effect of bringing a panel to trial upon one. Though he cannot do it, he can do another thing. He has no occasion to serve his libels for the same time; but immediately after the panel has pleaded to one, he may serve half a dozen for the same offence, before that libel which has been pleaded to has been disposed of by the Court. It is ludicrous to maintain this. It is contrary to all reason that could be applied to a thing of the kind. If there is any legal principle in the case of Charteris, this is impossible. I apprehend the question lies here. If the prosecutor was not entitled to serve a new libel, then the new libel was not served, for there is one great law of justice as of equity. "Id tantum possumus quod de jure possumus.” If the public prosecutor had no right to serve that libel, then you will consider that the libel was not served, and that is my reason for insisting at your lordships' bar, that the panel cannot be obliged to plead to that libel. The former libel has not been deserted to this moment; you have not yet consented to it. I am not going to say any thing so insincere as that you will be called upon to refuse your consent, when proposed on the motion of the public prosecutor. But the public prosecutor has taken a high station here. He refuses to move your lordships to desert the diet; and therefore you have never had an opportunity of considering the point, whether it should be deserted or not. If the diet had been deserted this day, before we began to state this point to your lordships, there is another ground sufficient for us which would have arisen. I shall not plead any thing without an interest. I am entitled to tell them, the libel would in that case have been considered as served this day, that I may have time to prepare my defences. I shall not enlarge upon the hardship which might arise to the panel, from being obliged now to answer to this libel. It is sufficient for me, that the practice which has been followed here is contrary to the esta blished practice before your lordships, and the best prosecutors have uniformly deserted libels before serving second indictments. There may be hardship in this case, and there might be greater in others. As to the case which was stated by Mr. Cranstoun, of two libels depending at the same time, and one of them where the panel was to be tried in Edinburgh, and another at Aberdeen, that proceeding would be so harsh and unjust, that even leaving matters to the discretion of your lordships (which every sound rule of jurisprudence is against, for the Court should have no discretion as to such matters), you would interpose a remedy for the evil. But the rule of law is not more against such a proceeding than against the present. I should have no apprehension of the consequence in that case; for, till a total desertion of law and justice in the country, such a thing could not be admitted. But, is it no hardship to be perplexed with two libels at the same time? The question of relevancy is attended with the greatest nicety and difficulty, and has given counsel a great deal of trouble already-and is there no hardship in having to give as much consideration to a new libel? That former libel was attended with so much difficulty, and occupied so much of the attention of the panel's counsel, that there is no saying what pleas might have arisen to them under that libel, and prevented them from paying attention to the new hbel. What if the counsel in the former case had not thought it incumbent on them to support the panel in the present? What if he had been deserted by his agents? I do not suppose there is any chance of that in this case; but this signifies nothing at all to a general rule, to which your lordships should adhere in all cases. There have been cases in which a man has been defended by counsel and agent in one indictment, who did not think it incumbent upon them to defend him in another. It was said, that the panel had notice a considerable time ago that the libel was to be abandoned. That was an accommodation. But what if the public prosecutor had given no such notice? It was not incumbent on him to give any notice. And as the panel would have been brought to this bar, with his counsel and agents ready to defend him in the former case, after bestowing great attention upon it, but not prepared to defend him in this case; is not that a situation which your lordships would take into consideration, if any thing depends upon the possible hardship? The counsel and agents might have been brought to your lordships' bar, under the impression that the trial was to go on on the first indictment. When they come, ready to defend him, they are told that that case is not to be tried. The prosecutor prays the Court to desert the diet pro loco et tempore, and then proceeds upon a new indictment, of which the counsel and agents had no notice whatever. Having held this out against him, he finds the whole trouble, research, time, and expense of previous preparation, thrown away, and that he must be ready, upon the most summary warning, to proceed to trial on another indictment. I may be told, such a case can hardly happen, in which the panel can be deprived of the whole inducie; but, if he may be deprived of even a part of the inducia, he may thereby lose the assistance of his agent and counsel, and what is more, may be deprived of the most material witnesses. We are told, that, in this indictment, there is only an alteration in a few words of the former. There is the very greatest difference between the two indictments; which is most difficult to defend, it is not for me to say. The major proposition is the same in both; but the minor is essentially different; and the two require different sorts of arguments. Lord Hermand.-This objection, not very material at first, has now as to the panel's interest dwindled into nothing. For as it is not pleaded that the second indictment is null, so as soon as fifteen days elapse from the abandonment by the prosecutor, he can be brought to trial. But it is argued there is a distinction where the panel has pleaded, i. e. uttered the words "not guilty," for that, it is said, constitutes litiscontestation. I doubt, if that be a phrase in criminal law. It does not occur in any one authority. But if it be, it must be understood as in civilibus. Litiscontestation, however, is not constituted by defences nor by pleading, it never takes effect till an act be extracted; not an act and commission of modern introduction, but an act for proof before the Court, or before the Ordinaries on oaths and witnesses. On this analogy the powers of the prosecu tor continue till a jury be impanelled, and so was found in the case of Archibald, 1708. On this ground I cannot agree to strike out of the list of cases, those in which "not guilty" has not been pleaded. On the other hand, the panel's argument cannot be redargued on what is called list of cases beyond the period of search. Additional cases are given in for the panel, in all of which the diet had been expressly deserted; but precedents enough remain to settle the law. In 1st case, Lawson.-Diet deserted. In 2nd case, Burns.-No desertion, and trial proceeded on second indictment. In 3rd case, Berry.-Same procedure. 5. Mendham.-Argument that panel had no interest to object;-not understood. 7. Lindsay Crawfurd.—A serious case, yet without desertion; trial proceeded on second indictment. It is argued, that in none of these cases was the objection pleaded. Why? because it was not thought relevant: The whole bar has been in a dream, till the ingenuity of the counsel here discovered what had been hid from their predecessors, though with all deference to them not their inferiors in ability; and the same observation equally applies to the Court. Is not this sufficient to establish a point of form? In one case, however, the objection |