(Here Mr CRANSTOUN was heard at considerable lengthr in support of the objections to the competency of the indictment; but his speech is not reported for the reasons stated in the Preface.)

LORD GILLIES.-Before the prosecutor begins, I want an explanation of a point. The case of Hamilton has been mentioned, in which Duncan Forbes was prosecutor. That name must excite in us all peculiar attention. On page 5. of the joint minute of the parties, it is stated by the public prosecutor," Mr Duncan Forbes, his Majesty's Advocate, consents to the deserting of the diet against Patrick Hamilton, younger of Green, upon this libel," (I understand informations had been ordered, which raises a presumption that that libel had been pleaded to), " without prejudice to him to insist in the new indictment raised at the instance of his Majesty's Advocate against him." What I want to know is, Whether this new indictment raised was served? In looking at the preceding case," but prejudice to him to insist in his other indictment already raised and executed," the insertion of "executed" in one case, and the omission of it in the other, excites suspicion that it was not executed in the other. It is mentioned in the one, and not in the other.

MR DRUMMOND.-My Lord Justice Clerk,-It appears to me, that there are two points for consideration in this case. The first is one of considerable importance, the other is of no importance at all as affecting the pannel. The first to which I allude, is, whether it be competent, during the dependence of one indictment to serve another. The consequence would be that, if this be incompetent, the service of the last indictment in the present case would be a nullity; and the pannel would thus obtain a further delay, to allow time for serving it over again. The other point is, whether, after an indictment has been pleaded to, (to use an expression which has been more dwelt upon in the present case than in all the former practice of the Court), it can be abandoned by the prosecutor, without an act of the Court, or whether it can only be got rid of with the authority of your Lordships. This second point is of no importance on this occasion, and is, in truth, a mere question of form; for, whatever your finding should be, the result will be the same to the pannel at the Bar.

The first point, however, fortunately appears to be attended with no difficulty; for it is settled by constant and inveterate practice. I shall not detain the Court by repeating what

is stated in the printed minutes, where your Lordships have before you not merely the five cases to which only the learned gentleman has thought proper to allude, but a series of other cases of which nothing has been said. There are, besides, the cases from 1711 to 1720, in the additional part of the minutes, which are completely in point upon this part of the subject, proving that any given number of indictments may subsist against a pannel at one and the same time. Even the case of Colonel Charteris, of which so much has been said on the other side of the Bar, may be referred to in support of this doctrine. As quoted by Mr Hume, it establishes a complete precedent, that it is competent to raise at once, and consequently to execute, a number of libels against an individual accusing him either of the same or of fifty different crimes.

The only rule of law as to the defence of a pannel, in such circumstances, to which our practice seems to pay any regard, and it is sufficient for every useful purpose, is this, that the prosecutor must make his choice, before going to trial, as to the indictment upon which he is to proceed against the pannel. But, in the present, of all cases, I do not know to what useful purpose it can tend to enter into this discussion at all; for if, as happens here, there is one and the same crime charged, and the same particulars are mentioned, the defence also will be the same under the different libels.

Besides, it will always be remembered, that, by the view of the law which I maintain, the first indictment is already extinguished. For either the prosecutor does virtually abandon all previous indictments, by executing a subsequent one, or the Court will, as a matter of course, desert all diets but that in which he desires to appear. And here it is upon the record of the Court, that he has abandoned the first libel; and it remains for the learned gentleman to shew by what proceeding it is possible to keep the prosecutor in Court longer than he chooses to remain. What I state is the settled practice in a multitude of cases, which are of that description that they cannot appear in the books of adjournal, or form any entry on the record. When a pannel forces on his trial by means of the Act 1701, and the prosecutor does not bring on the trial on the first indictment, but new criminal letters are raised against the pannel, these letters must be served before the expiration of the first indictment, otherwise the pannel could not be detained in prison. Now, in all the numerous cases of this description, it is plain that two libels are in existence against the pannel at once, without the diet ever being called, or

the pannel even brought into the presence of the Court, and no objection has ever been made to such a proceeding."

In the case of Colonel Charteris, quoted by the learned gentleman who preceded me, the discussion was not as to the running of the induciæ, and the subsistence of several indictments at once, as he seemed to suppose, for that was taken for granted to be lawful; neither was it imagined, that on having proceeded to the trial of one indictment, all the others were not thereby extinguished. The question was, whether the pannel should not be informed, before being called on for his defence, to which of several indictments he was to answer. There was no doubt as to the competency of raising and executing them all. No person ever entertained a doubt upon that subject. The demand made was, that before the trial the pannel should be informed on which indictment the trial was to proceed; it not being admitted, or so well understood as now, that the last service extinguishes a previous libel. It is unnecessary to say more upon this first point; for it is settled by the established practice of the Court, that there may be fifty indictments subsisting at one time, if, before the pannel be made to answer or take his trial, they be all reduced to one.

The next question is as to this doctrine of pleading to an indictment, about which the learned gentleman did not chuse

I was not aware at this time, that on one occasion it had been thought worth while to state an objection to this form of proceeding. The circumstance is detailed in the following Note to Mr Burnet's Work, page 367: "But is it necessary, in point of form, that the diet be called and simpliciter deserted, as the Act ordains, in order to entitle the prosecutor to the benefit of new criminal letters? In practice it is not held so; and justly, for though not calling the diet be a virtual desertion of it by the prosecutor, the prisoner can sustain no prejudice by this form not being gone through, it being still competent to recommit him on new criminal letters being served. Accordingly in the case of Welsh, who had run his letters, and on that ground petitioned for liberation on the lapse of the first forty days, but who had by this time been served with new criminal letters, Lord Justice Clerk, (Hope), on advising his petition, pronounced this interlocutor: "28th October 1808, Having considered the foregoing petition, with the letters of intimation and execution herewith produced, in respect that new criminal letters have been raised and executed against the petitioner, and have been laid before his Lordship, along with the petition for his Majesty's Advocate, for a warrant to detain the petitioner in prison; refuses the desire of this petition, in so far as it prays to set the petitioner at liberty; reserving to the petitioner the benefit of any argument he may be advised to found on against being subjected to a new trial, in consequence of the diet not having been deserted simpliciter on the 27th current, as he alleges it ought to have been, under the Act 1701."

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Accordingly when the trial came on, on 21st November following, the prisoner founded inter alia upon the circumstance of the diet not having been deserted simpliciter when the diet of the former libel fell; but the Court held there was no necessity for an interlocutor to that effect, the non-appearance of the prosecutor being a virtual desertion of the diet, and entitling him to serve new criminal letters, in terms of the statute."-H. H. D.

to speak by itself, but only in conjunction with the other point, and about which I should have been glad to have heard what he could say; for I have not yet obtained the remotest glimpse of what the idea of " joining issue," as applicable to the case before the Court, can rest upon. The form of interrogating the pannel, as to his guilt or innocence, before naming the jury, is one of the most immaterial, I might almost venture to say, useless steps of the whole process. In England, a pannel confessing may be convicted and punished by the Court without the intervention of a jury; and, if he remain silent, he may, in certain cases, I believe, be presumed guilty; and, in others, till very lately, might have been punished by a barbarous sort of death. Now, in all this, our practice is essentially different. The Court are no more judges of the fact, in a case of confession, than where the proof rests upon any other species of evidence; and silence is, in all cases, humanely interpreted into a plea of not guilty, the prosecutor being bound to prove his charge unless expressly admitted by the accused in presence of a

sworn assize.

I have looked through our law books, and, from the beginning to the end of all the authorities of the law of Scotland, there is not a word of the doctrine of litiscontestation to be found in criminal proceedings. There is no such word used by Sir George M'Kenzie, nor by Mr Hume. There is nothing in practice, or in principle, to give it support, and the introduction of it is contrary to the first principles of our criminal law. Upon what does the doctrine of litiscontestation rest? Upon an implied bargain or presumed judicial contract between the litigants. But, is that a doctrine which can be introduced here? Can a man make a lawful paction concerning his life or his liberty? Litiscontestation has no sense or meaning in this place. I have not been able to find the word, even in a pleading, except in one case reported by M'Laurin; and I wish the doctrine for ever expelled from the deliberations of this Court.

No party has at present a jus quæsitum in any thing. To what could the pannel here acquire a right? To his own plea? certainly not. Of what benefit could that be to him? If he plead guilty, it may to the prosecutor; if not guilty, is that of any use to himself? Is it to any act of the Court he has acquired a right? There is no act of Court in this instance. If there had been an interlocutor of relevancy, I should at least have understood the argument, but we have not yet advanced so far. This is the only ground on which I could conceive the argument of the pannel to have any

semblance of reason. But, unfortunately for the pannel, in the case I have alluded to in M'Laurin's reports, as being the only place in which mention is made of litiscontestation, there was an interlocutor of relevancy, and yet no regard was paid to the argument by the Court. The case is that of James Archibald, in February 1768. The position in support of which the idea of litiscontestation among other arguments was there advanced, was, that the Court could not desert a diet pro loco et tempore after an interlocutor of relevancy; but the Court deserted the diet in terms of the prosecutor's motion, and granted warrant for recommitting the pannel.

I have to submit, that the same consequence must follow to the pannel, whether you are of opinion that the libel is abandoned, or whether you go through the form of declaring it deserted. The Court cannot acquit the pannel of the charge against him. Your Lordships are not the judges of the fact. All you can do is to declare the diet deserted; and the consequence to the pannel is the same, for he may be detained in prison and indicted again next day for the same offence. To constitute the Court judges in a previous question as to the propriety of the prosecutor's conduct in insisting in or abandoning the libel, would be attended with the most extraordinary consequences, for which it cannot be supposed that the pannel's counsel are prepared to argue. It would introduce a course of procedure hitherto unknown, which, if it had been introduced in other times, might have led to the superseding of the jury altogether, and which must in any times invest the Court with the office of the prosecutor.

It was said that the Court has a discretion to exercise in deserting the diet; that it may do it simpliciter, as well as pro loco et tempore, if good grounds be shewn; and that the power of abandoning the indictment contended for takes this discretion from the Court. Mr Burnet, contrary to this statement, however, says (p. 310.) that the prosecutor is not bound to shew why he moves for the desertion of a diet pro loco et tempore, and that the Court must grant any motion which he makes to that effect. But I am quite willing to admit that Mr Burnet has stated this doctrine somewhat too broadly, and that he has quoted in too unqualified a manner (as he not unfrequently does), the import of a decision to which he refers in the note in its support. I perfectly coincide with Mr Hume's view of the subject, that, though the prosecutor. cannot be compelled to disclose his reasons for his motion to desert pro loco et tempore, the Court have a discretion which, if an extreme case be made out, they may exercise by deserting the diet simpliciter, (Supplement,