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p. 237.); though a more difficult question remains behind, to discover what benefit the pannel can possibly derive from that proceeding. All this, however, relates to the case of the prosecutor moving for a desertion pro loco et tempore, whereas here he has made no such motion.
I am not contending for a power inherent in the public prosecutor, without a remedy for any evil that may follow from it. All I say is, that the pannel is already out of Court as far as the first libel is concerned, and that he has nothing more to ask for by desertion of the diet of that libel, than what has happened by its abandonment by the public prosecutor. Where then, it may be asked, is the remedy in a case of oppression? The answer is, that by serving a multiplicity of libels and successively abandoning them all, the circumstances of oppression may be stated to the Court, if there be any to complain of, when by insisting on a new indictment the pannel shall at length be called upon to answer at the Bar; or the pannel may have his grievances previously discussed by presenting a petition. But it will always be remembered, that it is his own fault, by neglecting the remedies of the Act 1701, if his imprisonment shall in the meantime be prolonged a single day. And it is not easy, therefore, to conceive a more harmless application that can be made to a prisoner than the service of a series of indictments, whether relevant or not, that are never insisted in, or to imagine how any evil or oppression can arise from such a proceeding.
In the present instance, and in the present stage of the business, there is clearly no case before the Court from which the pannel has to ask relief, or of which he can complain, or on which he can be heard at all. The learned counsel for the pannel are entitled to come forward and state their hardships, if any shall occur to their fertile fancy, and they will be in order in doing so, when the pannel shall be brought again to the Bar, and the prosecutor shall insist in a charge against him. It will then be for the Court to consider, whether a case is made out that calls upon them to desert the diet simpliciter, rather than pro loco et tempore; and, after all, if your Lordships should have recourse to this unusual proceeding, I am yet to learn what benefits it would confer upon a prisoner more than the ordinary species of desertion pro loco et tempore, if obtained without the consent of the prosecutor. On a point on which Mr Hume has spoken with so much caution and reserve, it does not become me to say any thing. For every evil there must be a remedy; and, for all injustice there must be redress in the common law powers of this Supreme Court; but the question is,
whether the provisions of the Act 1701 are not intended to meet every case that can occur, and whether a case can possibly occur, in which the Court would be justified in adding, or attempting to add, to the safeguards of that law.
Now, my Lord, we have heard that Mr Hume's authority is against us in this part of the case, and that is an authority to which we are all disposed to bow. But I must confess, that I have not been able to discover such a meaning as has been imputed to him in any part of that learned author's work. I admit the justice of all the remarks that have been quoted. But your Lordships will observe how Mr Hume was quoted. There was nothing referred to as to his opinions of the prosecutor's power of passing from or abandoning his own instance; but passages were quoted from different parts of the book as to the desertion of the diet. I must, however, beg your attention to those passages in Mr Hume's work where he speaks of the prosecutor's power to abandon his instance; thus, 3d vol. p. 306. he says, "at any period before remitting an indictment to an assize, the prosecutor may abandon a faulty libel, and raise another in a more correct and better form." I am aware that this is not an authority directly in point, as the author is there only speaking incidentally on this subject, and we have seen how easy a matter it is to take detached passages without reference to the context and general bearing of the author's meaning, in order to support a particular purpose. Let us then see what Mr Hume says when treating expressly of the prosecutor's instance, p. 215. "As the Lord Advocate's instance is thus in one sense independent of the party injured; so it is also in this other sense, that it is entirely under his own management and disposal as to the seasons and occasions when, or the mode wherein, or the effect to which it shall be used. For in none of these points can any individual, nor even the Supreme Court, pretend to any controul or superintendence of him; as indeed," mark the conclusion, "as indeed to allow any such interference on their part, would in substance be to make the Judges prosecutors, who ought to be kept free as far as possible of all previous impressions of the case."
I submit, that if these passages be compared with those quoted on the other side, which last relate entirely to the desertion of the diet, and do not contain a word about the prosecutor's power over his instance, there will be no discrepancy or contrariety found between them. Desertion of the diet is an act of the Court; but as to the instance, the prosecutor has that entirely in his own hands. Your Lordships cannot keep the prosecutor longer in Court, not
á minute longer, than he chuses; and the pannel cannot prevent him from withdrawing, for he has all the benefit from that proceeding which he can derive from any desertion, and receives no harm from it.
As to the inducia of 15 days, if it be competent and proper to serve one indictment during the currency of a previous one, that question is at an end. The inducia of the second must run from the date of the service, else the power to serve the second would have no meaning whatever; and accordingly this will be found, on inquiry, to be agreeable to the practice. Your Lordships will remember the origin and nature of the inducia of citation, for an extension of which the pannel is not attempting to plead any equitable claim. The induciæ are not founded upon statute but upon an equitable practice. No case is here made out in equity for a delay; and it certainly will not be said that there is any practice against the running of the second inducia before the desertion of the previous diets. If it be competent to serve three or four indictments at once, it must follow that the induciæ of the whole may run at the same time. But at all times, before a trial is brought on, the Court will grant such delay as may appear proper in the circumstances of any particular case.
A complaint has been made that the pannel has been embarrassed with different libels in preparing his defence. To this it is a sufficient answer, that he may establish this fact of embarrassment, if he can, as the grounds of a motion for delay, (which appears to be considered a great advantage to the pannel, and is in fact the real object of this discussion) supposing him to succeed in persuading your Lordships that the first libel is not abandoned. But I have already said that there is no room here for any statement of hardship; the second indictment being the same as the first, with the omission of two or three lines. This objection, if it existed at all, would apply with tenfold force to the common case of an alternative charge of two crimes in the same libel, or to the case of a pannel served with several libels for as many different offences, when he would have ten times more difficulty in the preparation of his defence; and yet it could not be pleaded to be incompetent to make such a charge, or to serve different libels at once for different offences. This very year an instance occurred where the same individual, John Campbell, was tried on two separate libels on two consecutive days, and convicted on both.
LORD JUSTICE CLERK.-I tried a man on two different libels upon the same day last circuit.
Mr DRUMMOND.-It was observed, that in the proceedings of the Court of Justiciary in points of form, many cases have occurred unworthy of being followed as precedents, and many examples of loose and irregular practice. My Lord, I cannot allow this to pass uncontradicted. I have never had occasion to make such a remark myself, or to hear it made by others: On the contrary, I have always looked up to the practice of this Court as a model of accuracy and correctness in points of form. If the learned gentleman go back to bad times, he may find some things not to be imitated, but not certainly in modern times, when the practice of the Court has become more mature and perfect.
I cannot sit down without offering a few remarks upon the cases stated in the printed minute for the pannel. It is said, in the second page, "That a search from the year 1777 downwards had first been made, and the result had been communicated to the pannel's counsel some days ago But that after this a search had it seems been made, which appears to go back to the beginning of the last century; and the statement of the cases so found was only communicated late on this day. That on the part of the pannel it may now be assumed, that the Court has before it every one example which his Majesty's Advocate has been able to discover, in the course of more than a century, of any proceedings which he thinks calculated to support the measure which has been adopted in this case, or to meet the objection founded on the clearest principles of law." This is a very erroneous statement of what has been done in point of fact. Our search began in 1777, and prior to that there was no search at all. The cases stated before are not the result of a search; and the pannel's counsel are not entitled to say that no other cases can previously be found, for the only search made was since 1777.
Upon the case of Mendham, it is observed, that "in that case the pannel had clearly no interest to make the objection, but quite the reverse." I do not think that the circumstance of a pannel having no interest to state an objection is at all a sufficient reason to exclude a case from being quoted as a precedent, as seems to be assumed. It is the duty and the practice of the Court to look to the correctness of the proceedings at trials, whether objections be made or not: A strong example of which lately occurred in the case of Bell and Douglas, where, though the guilt charged was acknowledged, the indictment was not allowed by the
Court to go to an assize. Similar examples of the discharge of this duty by the Court must be familiar to us all.
It is said, however, in this case of Mendham, that the pannel had no interest to state the objection. But, we must not look to the result in judging of this interest, but to the circumstances in which he stood at the time for making the objection. How could he know at that time the result of the objection to the relevancy? and until the Court determined as to that, it was impossible that he could know whether it was his interest to make this objection.
If you turn the page, your Lordships will find a complete shifting of the argument of interest, for, in the case of Somerville, it is there maintained that the pannel had no interest to state the objection in question, although he was found guilty and convicted. He had an interest, it would appear, to state objections to the relevancy of the libel; for this was done by some of the learned gentlemen on the other side of the Bar who defended him; and, in consequence of the objections so stated, the indictment was abandoned, and a second indictment was brought. He had, however, no interest, according to the view of the case in the minute for the pannel, to object to the trial and punishment, because the latter "could not exceed imprisonment and pillory." Those results are not in general so coolly anticipated; but where did the learned gentleman who wrote this minute find the law, that this is the utmost extent of the punishment of perjury? and how did he lose sight of the fact in that particular case, that the pannel was over and above condemned to what was perhaps to him a still severer fate, to pay £.150 of damages, and the whole expenses of process? As to the expense, he had only the ordinary allowance of two, or at most three, counsel. Here there are a great many more. I do not pretend to enter into the secrets of the other side of the bar, but appearances, at least, are against the pannel on this ground. The trial again, it is said, could be merely put off for 15 days. Now, is not this all the pannel asks for in the present case? and yet we are told that was the reason the pannel had no interest to plead the objection in the case of Somerville; and on that occasion it was said to be as well to be convicted now as 15 days hence, though in this case the very idea of such a doctrine is reprobated as quite untenable and preposterous.
With regard to the case of Alexander Campbell, it is said, "This is not a case applicable to the point at all. There was no question about any new indictment, and the