of their works as useless or nugatory in themselves; but that it were very absurd to look into any of them for an exhibition of the prac tice of Scotland, which those foreign authors could know nothing about. And as to the discussions which they sometimes enter into of more general topics, such as the nature of the several crimes, the competency of the several defences, and the like; though many of their observations are just and rational, yet for the most part they teach nothing more than any man of plain sense, with a little attention to the subject, will readily, and to as good purpose, make out for himself. As Sir George Mackenzie has observed with respect to the quotation of authorities*, "he darkens his own cause, when just, who uses these to ignorant people; and he lessens his own esteem, who thinks he needs them among men of better sense." Besides, if in such matters we are to resort to authority, for confirmation of what equity and reason dictate, the works of the English lawyers are here entitled to the preference. Both by reason of the nearer analogy of the English practice to our own; and because the general principles upon which a question turns are laid down by those authors, and the doctrine illustrated, with a precision of language, and soundness of head, not inferior to what appears in the work of any lawyer or commentator of other countries.” (p. lxi.)

With this subject, is intimately connected the opinion of Chief Baron Comyns, as delivered in the case of Harvey v. Aston, because it shews how far the Roman law is considered as authority in our courts, and what little difference subsists between the two countries, as to the principles or degree of its reception.

"The knowledge of the civil law is in many respects useful, but in regard to the determinations of this or other courts in Westminster Hall, Selden seems to make a proper observation, who, after notice taken of the prevalency of the civil law in this realm in several periods of time, concludes that it is manifest some sort of use of it prevailed in decisions which were to be determined by the law of England; not that any thought the realm subject to the Imperial law, or that the common law could receive any change from it, for all taught that the common law was to be followed, where it varied from it, or was repugnant to it: but if there was no express rule of the common law in the case, the rule of the civil law was followed; or if both laws agreed, the matter was in some measure confirmed or explained by the words in the civil law."

The following are the words of Selden on this fubject, with which the opinions of Sir William Blackstone, Sir Matthew Hale, and Sir Edward Coke perfectly concur: indeed the latter great lawyer is fo ftrenuous for the independence of the English on the Roman law, that he more than once infists that as by fituation, fo by law, it is truly faid

"Et penitus toto divisos orbe Britannos.".

Works of Sir George Mackenzie, vol. ii. p. 353-'

"Now

"Non quidem omnino quasi regnum hoc sea rempublicam Anglicanam Casaribus jurive Cesareo subjici aut regimen beic inde pendere omnino, aut jus Anglicanum ante sive seripto sive moribus constitutum inde mutationem recipere voluissent (nam passim etiam jus hoc, qua multifariam a Cesareo discrepat eique plane adversatur, ut sequendum docent ipsi) sed ut tum ubi deesset nostri juris præscriptum expressius, ad rationem juris etiam Cæsarei ratione suffultam recurreretur, tum ubi jus utrumque consqnum, etiam Casarei quasi firmaretur explicareturve res verbis."Dissert, ad Fletam, cap. 111. sect. v. p. 472."

"The main store (says Mr. Hume, p. lxi.) from which I have drawn the materials of this treatise, is therefore the books of adjournal (or records of the Court of Justiciary), containing the pleadings of the Bar and the judgments of Court; and which extend, (though with several interruptions in the sixteenth century, and one of six years in the seventeenth), from November 1524, down to the present time. I have gone over the whole with attention, (in which I have had the assistance of a gentleman particularly skilled in the decyphering of ancient manuscripts :) and though I am far from doubting that very many things, both curious and important, still remain buried there, to reward the industry of any one after me who shall engage in the like research; yet I flatter myself that I have also brought some things to light, which at least were not universally known. There is, in the Advocates Library, a manuscript abridgment of the records of Justiciary; and of this I have also made use, (but never without marking it as my authority), for those periods of which the original records have perished; for this, abridgment must have been made at a time when the books of adjournal were more complete than they are now. These memorials of our custom, along with Lord Royston's Manuscript Notes upon Mackenzie, which contain many judicious remarks and much valuable information, have been the main ground-work of this undertaking. In themselves they are the surest of any; and in order that the reader may be enabled to judge for himself, how far they support me in my conclusions, I have, in every instance where it seemed material or useful, laid the passages them selves of the record under his eye, in the form of notes, along with the doctrine of which they are the vouchers and confirmations. It would be rash to suppose, that in the course of so long a work some inaccuracies in point of date or quotation may not have crept in; but as I have not spared pains on this head, (being very sensible that the value of any performance of this kind depends entirely on its accuracy); so I hope that they shall not be found numerous, nor of much importance,

Last of all, in regard to the order I have followed in treating of the subject: this is truly a point of less importance in explaining the system of Criminal than of Civil Jurisprudence. Frequently the doctrine of one species of civil right cannot be understood, till that which concerns another has been fully explained; and thus there is an order of inquiry pointed out as the best, by the very nature *This is from 1655 to 1661.'

+ Mr. William Anderson, writer in Edinburgh.'

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of the thing. But the law respecting one sort of crime scarcely ever stands in such a relation to that which regards another; so that it is often an almost arbitrary matter, to what subject the student shall first direct his attention. I have chosen, therefore, to take up the several crimes in the order rather of their frequency and practical importance, than of their rank in other respects. Thus I begin with those offences which are committed against individuals, and among these with the offences against property; after which follow the several modes of injuring an individual in his person or his fame. "Having exhausted these, I proceed to such offences as more immediately concern the public; which, after the example of Judge Black, stone, I have distributed into several classes; as they are hostile to the course of public justice; to the public peace; to the police and public œconomy of the kingdom; or to its interest in point of trade. The next division includes the high crimes of treason, sedition, and some others which are levelled directly against the Sovereign and the State. And the last consists of those transgressions which relate to God and to religion..

"

As the present work does not state any thing which has relation to the trial of crimes, and as the mode in Scotland differs materially from that adopted in this country, we shall premise a few observations respecting this point; both because the subject is curious, and because they will enable the English reader bet-ter to comprehend the contents of these volumes.

The forms of trial on criminal accusations differ much from those observed in civil actions, excepting in the case of those crimes to the trial of which the court of session is competent, and of smaller offences tried before inferior courts.-The trial of crimes proceeds either on indictment, which is sometimes used when the person to be tried is in prison; or by criminal letters, issuing from the signet of the justiciary. In either case, the defender must be served with a full copy of the indictment or letters, and with a list of the witnesses to be brought against him, and of the persons who are to pass on the inquest; and fifteen days exclusive must intervene between his being so served, and the day of his appearance.-In England, a prisoner is entitled to this indulgence only in the case of high treason; and even there Sir Michael Foster censures the measure, as productive of many bad consequences,

When the trial proceeds on criminal letters, the private prosecutor must give security, at raising the letters, that he will report them duly executed to the justiciary, in terms of the stat. 1535, cap. 35.; and the defender, who is called the Pannel after he has made his appearance in court, if he be not already in prison, is, by the letters, required to give caution, (bail, or security,) within a certain number of days after his citation, for his appearance on the day fixed for his trial;and if he give none within the days of the charge, he may be denounced

denounced rebel, by which a forfeiture of his moveables is incurred.

That part of the indictment, or of the criminal letters, which contains the ground of the charge against the defender, and the nature or degree of the punishment that he ought to suffer, is called the libel: all libels must be special, setting forth the particular facts inferring the guilt, and the particular place at which these facts were committed. The time of.committing the offence may be libelled in more general terms, with an alternative as to the month or day of the month: but the defender will be allowed to prove that, on certain days of the time libelled, he was alibi; and on such proof the libel cannot strike against him as to these days. In this particular, the law of the two countries does not materially differ; for the authorities on this point are with us contradictory, some requiring the exact day to be specified, and others declaring that the precise day is unnecessary for the prisoner, according to Sir Edward Coke (2 Inst. 318), may be found guilty if the offence was committed on a day either prior or subsequent to that charged in the indictment.-In the case of Sir Henry Vane, as reported by Chief Justice Kelyng, p. 16. the treason was laid in the indictment to be on the 30th of May 11 Car. 2.; and the Jury found him guilty of the treason laid in the indictment, on the 30th January 1 Car. 2. the day of the former king's execution. It was then resolved by the court that the day laid in the indictment was immaterial; and all Sir. H. Vane's forfeitures relate to that time, to avoid all conveyances and settlements made by him.

The necessity of special libels prevailed formerly in Scot land, not only in the trials of principal criminals, but also of accessories: but, as it proved impracticable, in most cases, to libel on the precise circumstances of accession that might appear in evidence, libels against accessories were declared sufficient, if they mentioned in general that the persons prosecuted were guilty art and part. The two things to be chiefly regarded in a criminal libel are, the relevancy of the facts, (i. e. their sufficiency to infer the conclusion,) and their truth. The consideration of the first belongs to the judges of the court; that of the other, to the jury or assize. In trials before the justiciary, after counsel had been heard on both sides as to the relevancy, informations binc inde were by the ftat. 1695, cap.4. directed to be offered to the court: but, by virtue of the stat. 20 Geo. II., the judges, after the pleading, and minutes thereof made up by the clerk, may forthwith pronounce their interlocutor; reserving power to themselves, in cases of difficulty, to direct informations either on the relevancy of the libel, the

mport of a special verdict, the degree of punishment, or on any other matter that may be alleged for the pannel, before judgment. In deciding on the relevancy of a libel, the court will also take into their consideration whether the libel be drawn in a formal and logical way, as well as the question of the sufficiency of the facts to infer the conclusion. If the facts libelled be found irrelevant, the pannel is dismissed from the bar;-if relevant, the court remits him to the knowlege of an assize.

The word assize (from assis, settled or established) has different significations: it is sometimes taken for the sittings of a court; sometimes for its regulations or ordinances, especially those that fix the standard of weights and measures; and it sometimes signifies a jury, either because juries consisted of a fixed and determinate number, or because they continued sitting till they pronounced their verdict. Vide Skene, voce Assisa; et Spelmanni Glossarium, eádem voce. A jury consists of fifteen (not tavelve, as with us) sworn men (juratores) chosen by the court from a greater number, not exceeding forty-five, who have been summoned for that purpose by the sheriff, and who have been given in a list to the defender when he was served with a copy of his libel.

From this statement, it will appear that our practice in England differs more in point of formn than in substance from that used in Scotland: our demurrers to indictments before the trial, (which are incident to criminal as well as civil cases, though now but seldom brought into practice,) and our motions in arrest of judgment when the verdict has established the fact, are similar in principle and effect to the consideration by the justiciary of the relevancy of a libel.

The defender in a criminal trial may raise letters of exculpation for citing witnesses in proof of his defences against the libel, or of his objections against any of the jury or witnesses; and, as the right of the defender to prove his defences ought to be as ample and extensive as that of the pursuer to prove his libel, letters of exculpation ought not to be refused on any relevant defence, though such defence should be inconsistent with the libel: otherwise, libels might be so laid as to deprive the defender of every article of exculpation. The defender has the same aid of the court, to compel the appearance of his witnesses, as the prosecutor possesses; and he has the farther advantage, in every instance, of counsel to address the jury, and to conduct his defence. From all these circumstances, it is evident that the practice in Scotland is, in many particulars, more favourable to the interests of a prisoner, than with us.No person could, in former times, by the law of Scotland, be

I

convicted