can be used in any shape against the witnesses, who may insist on having them destroyed, before they give their testimony on the trial. Articles, to be founded on as proving the crime, ought to be identified at the precognition, either by the subscription of the judge and witnesses, or by some other mark, and a reference to the declaration of the witnesses; and such articles are to be put in safe custody. The entire charge of conducting precognitions is now committed to the procurator-fiscal, sheriff, justices of the peace and other inferior magistrates, although, formerly, precog nitions were sometimes conducted by the Lord Advocate in presence of the Lords of Justiciary. The precognition being concluded, and the facts being such as to warrant a commitment, the accused is then committed for trial, on a regular written warrant, specifying the offence for which he is committed, and proceeding on a signed information.

The right to prosecute for a crime is vested, by the law of Scotland, either in the party injured, or in the Lord Advocate, who is the only prosecutor for the public interest; the popular actions of the Roman law being unknown in our practice. A criminal prosecution by the private party embraces not only the private interest and damages, but the full pains of law. But, in order to support the private instance, the party must be able to show some substantial and peculiar interest in the issue of the trial, not a mere remote interest as a member of the community, or even as the member of a portion or class of it, which has been particularly injured. It does not appear to be quite fixed, what degree of relationship to an injured party entitles a private party to prosecute; but perhaps the right is vested in the next of kin, however remote in degree. But, in the Court of Justiciary, every libel at the private instance must be raised with concourse of the Lord Advocate. The Lord Advocate is the public accuser, who insists in the Sovereign's name, and for his (or her) Majesty's interest, in the execution of the law; and he is vested with an uncontrolled right to exercise his discretion, either in commencing or in following forth a trial: and, at any time in the course of it, either before or even after the return of the verdict of the jury, he may, in case of a capital offence, restrict the libel to an arbitrary punishment.

The trial of an accused party proceeds before the Court of Justiciary, either on indictment or on criminal letters. The process by indictment is the exclusive privilege of the Lord Advocate, in whose name, as public prosecutor, it proceeds. Criminal letters resemble a summons in a civil action: they proceed in the Sovereign's name, and, like the summons, they are addressed to messengers and other executors of the law, who are commanded to cite the accused. The form of indictment is commonly used where the accused is in prison; and that of criminal letters, where he is at large, either on bail or otherwise, although there is no invariable rule on that subject. The indictment or criminal letters must be executed against the accused by a messenger-at-arms, or by a macer of the Court of Justiciary, or other officer properly authorised, who must serve the party with a copy of the libel, with a notice attached, requiring him to appear on a day certain to take his trial; see 9 Geo. IV., c. 29, § 6, et seq., and schedules thereto annexed. The accused must, at the same time, be served with a list of the witnesses who are to be examined against him, and of the whole assize of forty-five, out of which the jury is to be selected. If the accused cannot be found, he must be cited in the same form at his dwelling-place, and at the market-cross of the head burgh of the county in which he resides. When he is abroad, an edictal citation of sixty days at the market-cross of Edinburgh, and the pier and shore of Leith, is necessary. The diet to which he is cited in a criminal process is peremptory. And, on the day fixed, the accused and the prosecutor, whether public or private, must appear in court, the Lord Advocate having the privilege of appearing by his deputies; but the personal presence of the private party, where he is the prosecutor, being indispensable. The accused must also be present, otherwise the trial cannot proceed; and, if he is wilfully absent, sentence of fugitation will be pronounced. When both parties are present, and the trial is not adjourned, the court, upon the prosecutor's application, and on cause shown, may desert the diet pro loco et tempore; after which the accused may be served with a new libel; or the prosecutor may desert the diet simpliciter, which puts an end to all farther prosecution for the same offence. When both parties are present at the calling of

the diet, and there is no desertion, this is the proper time, in limine of the process, to state all objections to the execution of the citation of the party. If no such objection be stated, the presid ing judge calls on the accused to attend to the libel, which is read aloud to him (except when he pleads not guilty, and dispenses with the reading of the libel; 9 Geo. IV., c. 29, § 12); and he is then asked for his plea of guilty or not guilty, which is immediately entered on the record. Even where the accused pleaded guilty, it was formerly the practice to empannel a jury, before whom, if he repeated his plea, he was found guilty by the jury on his own confession; but, by 9 Geo. IV., c. 29, § 14, the necessity of empannelling a jury, where the accused pleads guilty, is dispensed with. Where, in addition to the general plea of not guilty, the accused means to insist on some special defence, he must, at this stage of the proceedings, either by himself or his counsel, state generally the nature of the course of defence he means to adopt. By 20 Geo. II., c. 43, it is required, that in such a case, the accused shall, on the day before his trial, lodge with the clerk of court a written statement or defence, signed by himself or his counsel, of the facts he alleges, and the heads of the objections or defences he means to maintain; and, where such a defence is not lodged, it would seem that the prosecutor, on the day of trial, may at least insist on having an outline of the course of defence; and, accordingly, in all cases where such special defence is pleaded, it is usual either to lodge defences, or to explain the nature of the defence in the outset of the trial. This is followed by the objections to the relevancy of the libel, if there be any such objections; and, after a rira voce debate, that question is disposed of by the court, either by an immediate decision, or by an order for farther pleadings in the shape of printed Informations; and, in that case, the trial is adjourned. If the libel be found relevant, a jury of fifteen persons from the assize of forty-five is ballotted for; the prosecutor and the accused having each of them five peremptory challenges, and an unlimited number of challenges upon cause shown; 6 Geo. IV., c. 22. The jury are then sworn in, and the trial proceeds, the prosecutor, in the first place, leading evidence in support of the libel, after which the exculpa

tory evidence is adduced. After the proof on both sides has been concluded, the counsel for the parties address the jury, on the import of the evidence, the counsel for the accused, except in cases of treason, having the last word; Regulations, 1672, No. 10. The presiding judge then sums up the evidence, and states the law to the jury. The jury need not be unanimous in their verdict, and, in case of difference, the majority decide. Formerly, no verdict of a jury was good if made up in open court; but, by 54 Geo. III., c. 67, the Court of Justiciary and circuit courts, were authorised to receive verdicts from the jury, by the mouth of their chancellor, on a consultation in the jury-box, provided the whole jurymen were agreed in their verdict; and, even when the jury had retired, the court was authorised, by the same statute, to receive viva voce verdicts, provided the jury were all agreed in the verdict, and that the judges were then sitting in court. And now, by 6 Geo. IV., c. 22, § 20, all verdicts in the High Court of Justiciary, or the Circuit Court, or in inferior courts, whether the jury are unanimous or not, and whether on a consultation in the jury-box, or after having retired, may be returned by the mouth of the chancellor of the jury, unless the court has directed a written verdict to be returned. But where the jury is not unanimous, the Chancellor must announce the fact, in order that it may be entered on the record; and when, in such cases, a jury is inclosed, the jury is not allowed to separate, or to hold communication with other persons, until their verdict has been returned in their presence, by their Chancellor. The verdict must be returned to the court, in presence of the accused, and of the whole jury. The verdict, when in writing, is authenticated by the subscriptions of the Chancellor and clerk of the jury, and accompanied with a list of the names of the jurors, and a state of the vote of each individual, "whether condemning or assoilzieing;" Regulations, 1672, No. 9. If the verdict be not guilty or not proven, or in any other way amount to an absolvitor of the crime libelled, the accused is immediately dismissed from the bar. If the verdict be condemnatory, the prosecutor then moves the court to apply it; when, if there be no pleas stated by the accused in arrest of judgment, sentence is pronounced by the presiding judge, and afterwards read out by the clerk from the record, and subscribed by all the judges

present. In Scotland, a sentence importing capital punishment cannot be carried into execution within less than fifteen or more than twenty-one days after its date, if pronounced to the southward of the Forth, or within less than twenty or more than twenty-seven days, if to the north of that river. Inferior corporal punishments may be carried into execution after the lapse of eight or twelve days from the passing of the sentence, according as it is pronounced on the south or north of the Forth; 11 Geo. I., c. 26, and 3 Geo. II., c. 32; 1 Will. IV., c. 37, § 2. And the Court of Justiciary has a power to interfere in altering the day for the execution of sentences, when particular circumstances render such an interference necessary. The sentences of the Court of Justiciary are not subject to review, or to appeal to the House of Lords; and, unless the royal mercy be interposed, execution will follow in terms of the sentence.

The account of criminal process, which has now been given, has reference to proceedings in the High Court of Justiciary, at Edinburgh, and in the circuits of that court, where the forms of process are almost precisely similar. The sheriff also has a very extensive criminal jurisdiction, extending to the trial of many of the higher crimes by means of a jury, and entitling him to convict summarily without the intervention of a jury, in minor offences; the privilege of summary conviction being a branch of the criminal jurisdiction of the sheriff, which he shares with justices of the peace and the magistrates of royal burghs. With regard to those inferior jurisdictions, it may be observed in general, that where express statute does not interfere, the criminal proceedings in all of them are subject to the review of the High Court of Justiciary. The Court of Session, partly by usage and partly by statute, may take cognisance of the crimes of forgery, perjury, deforcement, fraudulent bankruptcy, contempts, &c. This court tries and punishes those offences without the intervention of a jury; and its sentences are not subject to review in the Court of Justiciary; but the criminal jurisdiction of the Court of Session is never exercised, unless where the offence has been committed or discovered in the course of proceedings in a civil action before it ; and, even in that case, the practice now is to remit the criminal part of the case to the Court of Justiciary.