circumstance of the public prosecutor passing from particular charges in an indictment, intending or reserving the power afterwards to raise a new indictment, is wholly immaterial to the question." I conceive nothing can be more in point than this. What is law as to one charge in an indictment, must be law as to the whole. My statement, I observe, excites ridicule-but let it be answered. I repeat, that whatever proceeding is competent for the prosecutor as to one charge in an indictment, must be competent as to the whole charges; and that whatever he can do as to one of several charges, he can do as to one charge standing alone. It will be observed, too, that this proceeding took place in the case of Campbell after the pannel had pleaded. not guilty, though that certainly does not appear to me a matter of so much importance, as it cannot fail to appear to the learned gentlemen opposite from their views of this point of form. It is not disputed that the prosecutor may afterwards bring another indictment on a charge so abandoned.

It is next said, with the customary inaccuracy, "But at any rate it is humbly apprehended, that even this takes place only with the consent of the Court, which is expressed by the terms of the interlocutor of relevancy." Now, there was no consent of the Court, and there neither was nor could be any mention of it in the interlocutor of relevancy. The interlocutor finds the relevancy of the libel as restricted. The Court did not desert any diet, and could do nothing but proceed to the consideration of what remained after the prosecutor had withdrawn one of the charges.

Then comes the case of John Horn, who is also said to have had no interest to make this objection. He had an interest, however, to object to the relevancy of both indictments: At least, a learned gentleman, Mr Jeffrey, must have thought so, who was his Counsel, and made the objection. Now I cannot see how he had an interest in the one and not in the other, delay being the object, and the only consequence, of stating either the objection to the service or the objection to the relevancy. In this case of Horn there were two charges, uttering and selling forged notes; both of which were ultimately found relevant. The pannel did not know till after the interlocutor of relevancy that the prosecutor had any intention not to insist on the first, which was a capital charge.

The case of Bell and Douglas we are told has no analogy to the present question, because " Bell pleaded guilty to both indictments; and as to Douglas, the diet was deserted." But that cannot remove the case as a precedent, for the

pannel certainly had an interest to state the objection if he had thought fit to do so; nay, he had a more than ordinary interest, having his confession of the first indictment standing on the record, whatever the prejudicial effect of that circumstance may be to a pannel. The induciæ of the two libels are proved in this case to have run at once.

With regard to the case of Hamilton, it is said that there may have been only an intention to raise a new indictment, notwithstanding mention is made of the "new indictment raised." That will not do. It is impossible to construe an indictment actually raised into an intention to raise an indictment. The remark, that the informations " might have been on the form of citation, or on other points not necessarily implying that there had been a plea to the indictment," is quite unfounded in fact. Before the Jurisdiction Act of George II. informations were given in in every case, that being a form which could not be dispensed with. Those informations contained the statement of facts upon which the pannel chose to rest his plea of not guilty, as well as the objections that occurred to him in point of law to the relevancy. In place of this cumbersome proceeding, which had become a grievance and an obstruction to the course of justice, that excellent law substituted the written defences, which, by a slovenly practice, are often neglected to be lodged, though they are in fact one of the most important steps of the whole process, and might, perhaps, supersede altogether the unmeaning and embarrassing ceremony of entering a plea before the Court, which may be immediately afterwards retracted when the Jury are sworn. The informations were in fact at that period not merely pleadings on the relevancy, but also defences, or explanations of the plea of not guilty; and it is, therefore, most erroneous to say, that though informations had been given in, it does not follow that "the pannel had pleaded."

As to the case of Fernie, the minute stated, "that it does not appear when the new indictments were raised." But your Lordships will see in the prosecutor's minute, page 6. that it was the very same date upon which both libels were called, consequently they must have been both previously raised, and must have subsisted together; and the inducia of the last must have run notwithstanding the existence of the first, which is all that is contended for. The word "raised" in this place plainly includes and implies "executed," for the diet of compearance could not have arrived unless this had been the case. That the Lord Advocate, therefore, has not power to proceed as he 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 pannel 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 I added one word to what has been stated.

Mr DRUMMOND.-I omitted to observe, that the case of McKenzie, 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 pannel, 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 pannel 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 just a general recollection of what passed last day. But I shall submit a few observations upon what was stated by Mr Home Drum mond.

If your Lordships think that this practice is of considerable importance on the point, I shall begin with offering some remarks, and some inferences from them. Your Lordships have had 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

• This speech has not been revised by Mr Clerk,

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 search 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.

Assuming this, what is the result? Upon the one hand, you have a great many instances indeed, of first indictments being abandoned-the diet being deserted-where the libel had been abandoned by the public prosecutor before the pannel 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 an indictment, if the pannel has not been brought into Court, and parties have not joined issue. In a certain number of these instances, you have evidence of the opinions of the learned persons who conducted the business, that this is a proper and necessary mode of proceeding, because, by proceeding in that way, they put themselves to some more trouble than according to the mode now recommended by my learned friends. This is a practice as to which there could be no contradiction, for it is admitted, that, whatever is right or wrong in the present debate, the prosecutor may abandon the old and raise 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 pannel, 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 pannel, 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 objection 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 a practice of any authority whatever, is one of the most vio-' lent 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 conviction of the crime of which he was accusedthe crime of perjury. But, notwithstanding my situation, I certainly did not consider it of that great eminence which the public prosecutor seems to think it was. I did not con-sider myself as acting as a great legislator upon 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 pannel 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 pannel, 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 pannels 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 pannels, they cannot be considered as precedents. It may be for the interest of a pannel 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 pannel may often