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is almost unknown in Scotland, and in this respect the practice of Scotland is in marked contrast to that of England. There is nothing, however, in the rules of Scotch Law to hinder any injured party from prosecuting an offender whatever may be his offence. Relationship is also a ground for allowing offenders charged with heinous crimes as murder, rape, &c., to be prosecuted by private persons. But where the right to prosecute is not conferred on individuals by Statute, a private prosecutor requires to get the consent of the public or State Prosecutor, who, on cause shown, may be ordained by the Courts to give the requisite consent. Why any one should be liable to be prosecuted for an offence at the instigation of a private individual, and have such an inadequate remedy as the Law of England gives him, is easy to explain, and yet impossible to defend. Large numbers of English people are apprehended or charged with offences which are not followed by conviction. This should not be so; for either by some imperfection of the law offenders are allowed to escape punishment, or by some grevious injustice, many innocent persons are put on their trial without any justifiable reason. An action for damages for false imprisonment is no adequate remedy, and in the cases most needed-of poor people—is utterly valueless. Against this abuse the law of Scotland affords an excellent remedy, for private prosecutors must find caution to insist in the charge, and may be found liable in costs at the discretion of the Court if they fail in their prosecution. They may even, if the Judge sees fit, be ordained to pay a sum of damages to the accused. To adopt this rule would put an end to all the vexatious criminal prosecutions in England.
The principal public prosecutor in Scotland is the Lord Advocate, who can prosecute in any Court. He is the only competent public prosecutor in the Supreme Court, and his deputies are the Solicitor-General and Advocates-Depute. In inferior Courts the public prosecutor is called the Procurator-Fiscal. The Lord Advocate and his deputes and
the Procurator-Fiscal of the Sheriff Courts are appointed by the Crown, and paid fixed salaries out of the Consolidated Fund. The Lord Advocate and his deputes change with the Government, but the Procurators-Fiscal of the Sheriff Courts hold their appointment ad vitam aut culpam. The ancient duties of the English Coroner and the modern duties of the Scotch Procurator-Fiscal are almost identical. The Procurators-Fiscal of the Counties—i.e., of the Sheriffs—undertake all the necessary inquiries as to offences which are to be tried by the Sheriffs or the Judges of the High Court of Justiciary. If the case is to be tried by a Sheriff, the County Procurator-Fiscal examines the witnesses in private, draws the indictment, and appears in Court on the trial of the prisoner. If it is one which must come before the Court of Justiciary, the County ProcuratorFiscal makes the preliminary investigations, transmits them to the Crown Office in Edinburgh, and the Lord Advocate or his deputes draw the indictments, and one or other of them appears in the Court of Justiciary to prosecute the prisoner. The Lord Advocate is not liable for costs or damages at the instance of a person who has been accused without being convicted of a crime. ProcuratorsFiscal may be found liable in costs.
Corresponding to the investigation before the Magistrates in England, there is also a preliminary investigation in Scotland before the trial of the prisoner, and, in order to make this preliminary investigation effective, the Magistrate who conducts it has power to cite witnesses, who, by committal to prison, may be forced to give evidence on oath. But these investigations are not of the wide and extraordinary character which have lately taken place in England. The real investigations and preparations for the trial are conducted in private by the public prosecutor, and in all cases of any consequence by the Procurator-Fiscal of the inferior Courts. As can easily be supposed, the preliminary investigations by the Procurators-Fiscal of the Magistrates and Justice of the Peace Courts in reference to summary trials are not usually of a very searching character. Nothing need be said as to Indictments in Scotland, for they do not materially differ from those in England. Still it ought to be noticed that, as part of tre Indictment, there is annexed a list of the articles, documents, and witnesses to be produced at the trial, and of the Jury who are to be summoned to try the prisoner. The latter being cited to answer the charge, the articles to be produced against him are lodged with an officer of the Court for inspection by the prisoner, or others on his behalf. If he proposes to adduce witnesses who are not in the prosecutor's list, he must lodge a list signed by himself, or his procurator, with the Clerk of the Court, and have a double of it served on the prosecutor. If he proposes to make any special defence, he must by the day before the trial give to the Clerk of the Court a statement of the defence in writing, signed by himself or his Procurator. The following defences are held to be special, namely, alibi, insanity, and selfdefence. Where he proposes to impeach the chastity of a woman said to have been injured, or prove a quarrelsome disposition against the injured person, he must give notice of such being his intention, and he will not be permitted to go beyond the time specified therein. Were this part of Scotch procedure adopted by England, a good deal of false swearing would be prevented, and the minds of those engaged in a criminal trial would be fully prepared for the charge and the defence, and, as ought to be the case, a criminal trial would be reduced to a close approximation to a trial in a civil action.
The Trial.—The trial is the next step in Criminal Procedure; and here, for the protection of public morals, a most important custom prevails in Scotland—i.e., where the offence is one of an indecent and unnatural kind, the Court is cleared of all except those who are engaged in the trial; but in all such cases the doors of the Court are opened before the Jury return their verdict. As in England, the general rule is that the trial of Crimes should take place with open doors.
If there are pleas in bar to the charge, these should be stated at the outset, and before the evidence is given ; and so in like manner the objections to the relevancy of the indictment are discussed and disposed of at this stage. Thereafter, on the plea of not guilty, the Jury are balloted by the Clerk of the Court from the list which contains the names of special and common Jurors, the common Jurors being in the proportion of two-thirds of the whole number, which is fifteen. The prosecutor and each accused has five peremptory challenges, of which not more than two may be challenges of special Jurors. A peremptory challenge must be made at once when the Jury are balloted. Cause must be shown for challenge of more Jurors than two special and three common. The Jury being balloted, are sworn by the Clerk of Court. Whenever the Jury are sworn, the right of the prosecutor to move a desertion of the trial, and the right of the accused to state objections to the indictment, cease absolutely.
Here the reader will observe that nothing has been said of a Grand Jury, and the reason of that is that there is none in Scotland. Fifty years ago Bentham wrote that the Grand Jury had been useless, and had become mischievous for 250 years, and yet, without in the least degree conducing to a right administration of criminal justice, it still exists. In Scotland, to put a man on his trial for a serious crime, without strong suspicion of guilt, is utterly impossible ; but in England this is an event which daily arises. But we proceed.
At this stage the charge against the prisoner, and any special defence which has been lodged, are read, and the prosecutor proceeds to lead his proof. The general rules as to proof in Scotland and England are much the same as to the admissibility of witnesses. Formerly, in both
countries, proof was greatly circumscribed by the relationship of witnesses to the prisoner; but many of these disabilities are now removed. Thus, infamy, near relationship, agency, defective citation, are no longer pleadable to exclude witnesses; and the philosophical principle of Bentham is strongly supported by lawyers and others in Scotland, that no witness belonging to a class should be excluded, on any ground whatever, unless he can be shown to be untrustworthy. In Scotland witnesses are sworn by a judge, and those who have conscientious scruples against oaths make a solemn affirmation ; and witnesses are never examined in Court in presence of each other. Whether the witnesses are sworn by a judge, or by an officer of the Court, in presence of the judge, is of no consequence; but, as showing the little value which is placed on what is said by a witness in his preliminary examination by the public or private prosecutor, it is worthy of remark that a witness may have the writing containing his preliminary examination destroyed before he is examined. Were a similar rule adopted as to depositions taken before the magistrates, a great advance would be made in the criminal procedure of England. Nothing is more useless than the frequent wranglings at criminal trials as to depositions and their fulness and import. As to hearsay, res gestae, scientific testimony, &c., the rules of the law of evidence in Scotch Law are the same as in English. In regard, however, to a previous conviction, the time for its proof is different in the two countries, and the rule in Scotland is that a previous conviction must be proved during the proof of the cause, and that a different rule in any part of the United Kingdom or elsewhere does not alter the universal rule of the Scottish Courts. Another radical difference on the law of evidence in Scotland from that of England is that the evidence of one witness is not sufficient to convict, unless this be declared sufficient by Statute as regards a particular offence. If a witness be corroborated by circumstances, or by an accused's declara