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LORD HERMAND.-In justice to myself, I must here offer an explanation. One of the oldest cases I remember is the trial of Provost Montgomerie in 1759. Half a dozen Counsel there spoke seriatim. I have myself been in cases in which this was done, having spoken in the middle of four or five Counsel; but it was at the beginning, in answer to a plea to the relevancy, and not in reply.
LORD JUSTICE CLERK.-I am of opinion with Lord Hermand. Here the whole eight Counsel for the pannel might have spoken in succession immediately after Mr Cranstoun; but I know no instance of two replies having been admitted for a pannel.
My Lords, you have heard this argument maintained very ably, and you will now say what are your opinions on the subject.
LORD HERMAND.-In every case I should be desirous of getting any information to enable me to sustain objections in favour of a prisoner. But my opinion is, that the objection in the present case must be repelled, because the prisoner has no interest to plead the objection.
At the same time, I am disposed to do all justice to the argument of Mr Cranstoun. He stated, that the pannel had pleaded not guilty to the former indictment-that Informations had been ordered upon objections which were stated to the relevancy-that a new indictment had been served while the former indictment had not been deserted -and that the former indictment cannot be deserted without the authority of the Court. He stated, that fifteen days farther of induciæ might be of material advantage to the pannel; and he figured strong cases of hardship which the Court would have to check; for instance, there might be a series of indictments, upon some one of which the King's Advocate might take it into his head to transfer suddenly the trial to Inverness or Aberdeen. I hope no such thing will ever happen; but should it happen, the Court has power to redress the grievance.
In considering the objection which has been brought forward, I wish to know what interest the pannel has to plead it. I could figure a case where the pannel might have a strong interest to plead such an objection; and then I might think differently from what I do on the present occasion.
The case would have been altogether different, if a different crime had been charged in the second indictment from what was charged in the first, or if the crime had been dif
ferently stated, or if something had been added by the public prosecutor. But here the indictments are the same. Something is left out in the second, which appeared to me objectionable in the first-the narrative, that the pannel having "at Glasgow," &c. " wickedly, maliciously, and traitorously conspired and agreed with other evil disposed persons, to break and disturb the public peace, to change, subvert, and overthrow the Government, and to excite, move, and raise insurrection and rebellion, and especially to hold and attend secret meetings, for the purpose of obtaining annual Parliaments and universal suffrage by unlawful means, did," &c. But, are the pannel's Counsel much the worse in their cogitations on the second trial, from this passage being struck out of the indictment? There is no increase in the second indictment; and, with the diminution which I have now mentioned, the two indictments are in the same terms. The pannel, therefore, has no interest to plead the objection upon which he appears to rely.
It is true that the prosecutor, in law, or in point of form, cannot, of himself, desert the diet. But did the Judges ever take it into their minds to ask the prosecutor, upon any occasion, why he desires the diet to be deserted? We presume he has good reasons for doing so, and we never ask him to state those reasons. The power of passing from or deserting an indictment, is substantially in the power of his Majesty's Advocate or of his Deputies.
I think the Counsel for the pannel would have done better to have withheld their objection. Has this pannel pleaded to the present indictment? I believe not; for his Counsel prevented him. The first indictment had not gone to a jury, and never will. Before an indictment go to a jury, it has been by practice in the power of the prosecutor at any time to pass from it by bringing a second indictment; and it were unwise to put a rash hand to any variation in the procedure in criminal trials. Many instances might be cited of a first indictment having been virtually passed from by a second serving, and many cases to that effect were cited by one of the learned gentlemen, without going farther back than 1812. These cases are familiar to us all. I was present at several of the trials. The Lord
Advocate went farther back, and he stated the case of Mendham. I take the true view of the law to be thisthat the serving of a new indictment is a substantial dereliction of a former indictment. An application to the Court on the subject is a mere piece of form. No good can arise
from sustaining the objection in this case; and I do not think that in law and practice it can be sustained.
LORD GILLIES.-I am not sure that I can arrive at the same conclusion with my brother who has now spoken.
I think it fair to state in the outset, that actual hardship is a plea which cannot be stated in the present instance. I do not think that the pannel can complain of hardship; and no such plea, I believe, is seriously insisted on, as that of actual hardship. The argument of the prisoner's Counsel is an objection in point of form, founded upon principle, and all forms are of importance which regulate criminal procedure.
The case of Charteris was the first referred to; and what do I gather from that case? There were there four indictments; and the prisoner was brought to the Bar under the charge contained in all these four indictments, having pleaded at that time to none of them. His Counsel excepted to this, and I think with reason; and, in consequence of what passed, the prosecutor was obliged to abandon three of the indictments, and the trial proceeded upon the fourth. I understood Mr Clerk to say, that the trial did not proceed instanter; in which I think he is mistaken. I think that all that was done in that case was to find the prosecutor could not proceed on any one indictment without expressly abandoning the rest; and I understand the trial proceeded immediately. This judgment, whether right or wrong in the case of Charteris, and though much founded on, seems to have been departed from in the subsequent practice of the Court. It seems to have become an established practice, reconcileable with principle, that a public prosecutor may raise indictments against a prisoner in succession for any period, and may bring him, when he chooses, to trial, and that the prisoner has now no ground for objection as in the case of Charteris. I hold so, for this reason, that it is now an established principle, that in criminal prosecutions, a public prosecutor, by raising a fresh indictment against a prisoner, eo ipso passes from all former indictments. Suppose, therefore, that the unfortunate man at the Bar had not pleaded to the old indictment, I should have considered the new indictment a virtual abandonment of the former one. I conceive that the practice which has followed the case of Charteris, is reconcileable to principle, and for this reason, that till a prisoner pleads to an indictment, the public prosecutor has the disposal of the indictments,
and he may bring it or not before the Court-he may abandon it virtually, or expressly, without the consent of the Court.
That is what the practice goes to. But what is the case here? The difference between this and Colonel Charteris' case is, that here the prisoner did plead to the indictment. And what was the consequence of his doing so?-that the indictment was no longer within the power of the public prosecutor-he no longer could desert the diet-that is all within the exclusive power of the Court. If I am asked whether, when litiscontestation has taken place, and the pleading of the prisoner to the indictment may fairly be considered as an act of litiscontestation, the public prosecutor is entitled, of his own authority, to desert the diet or abandon the charge? I answer in the negative. He cannot do it without the interposition of the authority of this Court.
That question is decisive to a certain degree on the present point. If he cannot abandon it expressly, he cannot do it virtually he cannot do it by implication-he cannot do it without the authority of the Court. It is laid down by Mr Hume, and I conceive it to be a most important principle in our proceedings, that after a pannel has pleaded to an indictment, the authority of the Court must be had for the abandonment of that indictment. I do not talk of this as a case of hardship; but I conceive hardships might arise from the exercise of such a right, by a public prosecutor, as his Majesty's Advocate now contends for.
The public prosecutor has many privileges. Many are justly, and reasonably, and wisely, and for the most proper purposes, given to him, which are not allowed to a private prosecutor. But litiscontestation goes through all cases. After it, neither party can go out of Court without the authority of the Court. Hume illustrates the rights, the situation, and predicament of the public prosecutor, by referring to the situation of the private prosecutor in similar cases. I can easily conceive cases to exist, though I have no apprehensions of their existing, in which it might be the duty of your Lordships, in point of justice and law, and on important considerations of every description, to say that you would not allow the public prosecutor to abandon an indictment and take up a new one.
I apply this principle to the present case. The pannel has pleaded not guilty to the first indictment, and a new one has been raised. I do not say the new one is null-I am not prepared to go that length. But this much I say, that this does not extinguish the old one-that it is not a virtual discharge of it, because the public prosecutor can
not expressly discharge or desert the first of himself. I conceive that the first still subsists-it has not been discharged by any authority competent to discharge it. It still subsists: and here the prisoner has a fresh indictment served against him. What is to be done with the present indictment? It is not null-but what the prisoner says is, I must have full induciæ granted me; and the whole question is, whether the full induciæ shall be granted him, Yes or No?
I think that, in point of form, you are bound to dispose of the first indictment, and then the question is, whether you will allow the pannel the fifteen days, Yes or No?
It was said that the prisoner has no interest to plead the objection. I cannot go into that. This is a question of life and death, and he is the best judge of his own interest. I am not entitled to tell him that he has no interest not to be tried to-day. For any thing I know, he has a great interest-a material interest, by which his life may be preserved or prolonged. To have his life prolonged even for fifteen or sixteen days, is perhaps a serious object to him, as affording him possibly a better chance to save it from the present danger.
If the practice founded on by the Crown Counsel were of long standing, inveterate, and reconcileable to principle, I should hold it sufficient to authorize the proceeding which is objected to in this case. But as to the practice cited here, where an indictment has been pleaded to by the prisoner, I have seen no cases stated prior to 1812. The case of Somerville in 1813, and that of Horn in 1814, were mentioned. The case of Mendham I have no distinct recollection of. I take it for granted it was correctly stated. These three cases are all we have been told of, which truly apply to the present case. I cannot pay such regard to these cases, as to be of opinion that they entitle me to overrule the objection; First, Because they are too recent in date, and too few in number, for regulating our decision: Secondly, I think they ought not to be attended to, for this reason, because I do not see that the objection was stated; and we all know how apt the best men are to fall into errors and slight irregularities when not put on their guard by the Bar. We were told, that it is the duty of the Court to watch over the proceedings, and see that they are regular and consonant to established forms, whether any thing be stated from the Bar or not. In that observation 1 agree; and I am sure that I speak the sentiments of the Court when I say, that we are sensible of the anxious and able care displayed by your Lordship on all occasions of that