or part thereof, being found proven by the verdict of an Assize, before the Lord Justice General, the Lord Justice Clerk, and Lords Commissioners of Justiciary, you the said William Edgar ought to be punished with the pains of law, to deter others from committing the like crimes in all time coming. H. HOME DRUMMOND, A. D. LIST OF WITNESSES. 1 Robert Hamilton, Esquire, Sheriff-depute of Lanarkshire. 2 Daniel Hamilton, Esquire, one of the Sheriffs-substitute of Lanarkshire. 3 Daniel M'Callum, clerk to John Drysdale, sheriff-clerk of Lanarkshire. 4 Mathew Burns, clerk to George Salmond, Procuratorfiscal of Lanarkshire. 5 John Leslie, clerk to the said John Drysdale. 6 Joseph Reid, writer in Glasgow. 7 Alexander Calder, sheriff-officer in Glasgow. 8 James Thomson, clerk to the said John Drysdale. 9 Alexander Hunter, changekeeper, Old Wynd of Glasgow. 10 Marion M'Laren, or M'Lachlan, now or lately servant to the said Alexander Hunter. 11 John Robertson, innkeeper and stabler, Gallowgate, Glasgow. 12 Agnes Campbell, wife of Thomas Dow, steam-boiler maker and smith at Girdwood and Company's foundry in Hutchesontown, in the vicinity of Glasgow. 13 Janet Rentoul, now or lately servant to Neill Munn, innkeeper and stabler in Ingram-street, Glasgow. 14 Alison Wilson, now or lately servant to the said Neill Munn. 15 Mathew Fyfe, spirit-dealer in Wilson-street, Glasgow. 16 Jean Boyd, wife of the said Mathew Fyfe. 17 William Leggat, changekeeper in King-street, corner of Centre-street, Tradeston, in the vicinity of Glasgow. 18 John Mitchell, weaver, residing in Wilkie's Land, Charles-street, Calton of Glasgow. 19 Hugh Dickson, present prisoner in the Castle of Edin burgh. 20 Peter Gibson, present prisoner there. 21 John McLauchlane, present prisoner there. 22 William Simpson, present prisoner there. H. HOME DRUMMOND, A. D. LIST OF ASSIZE. County of Edinburgh. Francis Carteret Scott of Ballerno. 5 John Wood, merchant there. John Brown, farmer, Carrington. Andrew Johnston, farmer, Primrosebarns, County of Haddington, William Aitchison, junior, of Drummore, 10 William Hay, farmer, Howden. County of Linlithgow, William Glen of Mains. William Dawson, younger, Bonnytoun, 15 John Trotter, farmer at Stacks. Robert Taylor, residing at Blackness. City of Edinburgh. Robert Fraser, jeweller in Edinburgh. William Ross, tailor there. Francis Davidson, confectioner there. Town of Leith. John McKenzie, merchant in Leith. 40 Archibald Cleghorn, corn-merchant there. Thomas Morton, ship-builder there. Robert Paterson, painter there. Charles Robertson, merchant there. John Sanders, agent there. 45 John Glover, wright there. AD. GILLIES. LORD JUSTICE CLERK.-William Edgar, What do you say to this Indictment?-Are you guilty or not guilty of the charges contained in it? WILLIAM EDGAR.-Not guilty, my Lord. Mr CRANSTOUN.-Before the prisoner pleads to the indictment which has just been read, I have to state to your Lordships, that he is advised to object to the competency of the present proceeding; and I humbly submit that this is the proper time for stating the objection to your Lordships. Your Lordships will recollect, that the prisoner at the Bar was lately indicted upon the statute the 52d Geo. III. for the crime of administering unlawful oaths, binding, or purporting or intending to bind, the takers to commit the crime of treason. That indictment was regularly served upon the prisoner-he was brought to the Bar-he pleaded not guilty-and your Lordships, upon hearing a debate upon the relevancy, appointed informations to be given in, and continued the time for doing so until this day. My Lords, that criminal prosecution is still in dependence against the prisoner. The diet has not yet been deserted as far as I know. I need not tell your Lordships, that his Majesty's Advocate cannot desert a prosecution, either simpliciter or pro loco et tempore, without the permission of your Lordships. By deserting simpliciter, I mean here, deserting with a view to try upon a new indictment for the same crime. While the first prosecution was thus in dependence, his Majesty's Advocate has thought fit to execute a second indictment against my client, calling him to answer at your Bar for precisely the same crime as was charged in the first indictment. I submit to your Lordships, that this proceeding is altogether incompetent-because the diet in the first indictment is not yet deserted; and that it would be equally incompetent to proceed at present on the second indictment, even if, on the motion of the Lord Advocate, the first should now be deserted. I shall state, in a very few words, the grounds upon which I think our objection is irresistible. It is known to your Lordships, that by the criminal law of this country, as now firmly established, every person who is brought to the Bar upon a criminal charge is entitled to have the inducia of fifteen free days. What benefit could be derived from the induciæ, if he could be brought to trial, and during the dependence of that trial inducia might be running against him all the while for another trial on account of the same crime? Why, he would be placed in a situation in which the law certainly never meant him to be placed; he would be perplexed and embarrassed, by being under the necessity of defending two actions subsisting toge ther at one and the same time. Look how far this principle, if once admitted, would go. The prisoner is indicted, he is brought to the Bar, an objection is stated to the relevancy of the indictment, and your Lordships, after an argument of twelve hours upon the relevancy, find the indictment irrelevant. The next moment his Majesty's Advocate takes a new indictment out of his pocket, and the prisoner is immediately again put upon his trial for the very same offence. Well, the second day you have an argument upon the relevancy of this second indictment, an argument which also lasts twelve hours; and when that indictment is found irrelevant, what happens next? A third indictment is produced by his Majesty's Advocate, and he insists that the prisoner shall again be tried. And thus there might be fifteen diffe rent indictments, under which the prisoner is actually kept upon his trial for fifteen days, being the whole induciæ contained in the first indictment; and upon the sixteenth charge, the pursuer might be brought to trial upon a rele vant indictment, and without having had one moment's time to prepare his defence. I may be told that this is stating an extreme case, one which is not likely to happen. Such a case certainly may not happen while my friend is Lord Advocate; but if what I have stated might happen in an extreme case, it is enough for my argument. Every possible danger of this kind ought to be guarded against, for experience teaches us that criminal prosecutions are often resorted to from ambition, revenge, and other improper motives. As a general rule, therefore, in the law of Scotland, I affirm, if a person is indicted for a crime, and if he comes to the Bar, and pleads to that indictment, then there is a depending process against him, during which he cannot again be cited to answer for the same charge, and in that way be deprived entirely of the benefit of his inducia. The moment he has pleaded to his indictment, it is incompetent to have another indictment running against him for the same offence. There are various ways in which I might illustrate the hardship and oppression which would result from a different rule. Suppose a pannel has pleaded to an indictment, and has been actually put upon his trial here, if the objection which I am now stating is not a good objection, his Majesty's Advocate might raise another indictment, requiring him to take his trial at a distance, for instance at Aberdeen, the day after the diet of the first indictment, which is to be tried at Edinburgh, and that for the very purpose of deserting the first indictment, and proceeding upon the second. In this very case it is possible that the pannel may have fifty witnesses to examine, and of course he is bound to have them here to-day, in case the trial should go on on the former indictment. But if the former is deserted, and a new one called at Aberdeen to-morrow, in what manner, I would ask, is the pannel to transport his witnesses to Aberdeen? The inducia are given by law for the very purpose of protecting the accused against surprises of this kind; but the practice attempted on the part of the Crown would defeat that purpose. It is in vain to say that the Court would interfere to give redress, if an oppressive proceeding of the nature I have supposed were to be attempted. That plea was once urged, when a prosecutor, in defiance of all law, had not given the ordinary induciæ, and I am sorry to say, that it was listened to by the Court. The libel contained induciæ of twelve days only; and when the pannel complained, he was told, |