fact, and never can be abused with safety beneath the frown of a vigilant, enlightened, and high-minded people. -By this standard alone can the office of the Lord Advocate, or of any other public functionary in our land, be fairly tried.

The writer complains that the powers of the Lord Advocate are undefined and unknown,-and immediately proceeds with exemplary consistency to edify his readers by an enumeration of them. But the fact of powers vaguely claimed being practically unknown, affords conclusive evidence that they are not wrongfully exercised, nor in deed exercised at all. The discussion which even their occasional use, and far more, their abuse, would instantly elicit, could not fail to draw them out of the twilight of antiquity. It is to contend with a phantom, therefore, to wage battle with the unknown powers of the Lord Advocate; and it were be neath the dignity of the legislature to employ itself in enacting laws to put them down. The practical question which can alone deserve the attention of Parliament, and of the public, is, the practical power which this officer is in the habit of exercising-its adapt ation to the ends, political and legal, for which the office was first instituted, and has been since continued. Taking, therefore, the writer's enumeration of these powers--which, bating its clumsy and wilful exaggeration, has in it nothing new-let us see whether he makes out his position that the office calls for regulation.

The Lord Advocate is the Public Prosecutor in Scotland; and the Reviewer's minute subdivision of his powers, however formidable it may appear to persons unacquainted with the subject, is truly comprised in the above sentence. The law of Scotland discourages, and ever has discouraged, the trade of the private informer, and has wisely taken the great initiatory step of criminal justice as much as pos sible out of the hands of private ma lice, and confided it to those of public duty. Private parties may indeed prosecute, but not without tendering to the sage jealousy of the law the guarantee of a reasonable interest in the proceed ings. The law has constituted the prosecution of crimes a public trust, and committed this trust to the hands of an eminent public officer. Nor is there a Scotsman, whose opinion on

such a subject can be of any weight, who would desire to have this system changed, or who would not grieve to see his country demoralized by the birth of a base brood of informersBut the public officer to whom we owe our protection against such a pestilence, must have power to perform his duty with effect; he must, in short, have all the powers which the Reviewer has ascribed to the office, so far as they are faithfully recounted.

The Reviewer complains that the point is not yet clearly decided whether the Lord Advocate, on failure of his prosecution, is bound to name his informer; and farther, that the crown is not liable in costs to parties accused but acquitted. The last point seems too ridiculous even for passing notice, when one considers the numerous acquittals which inevitably occur, not from the innocence of the accused, but from defect of evidence, or errors of a nature merely formal. The liberal reimbursement, superadded to the lamented impunity of a villain whom chance, not merit, has saved from the halter, would be an odious spectacle indeed. The other branch of complaint, that the point is not yet clearly settled, whether the Lord Advocate is bound to name his informer, is one selected with the curious infelicity that characterizes this writer. If there were practical tyranny, could this question have remained unsettled?-Can there be a better proof than its very uncertainty that wanton prosecution is unknown, and that this office, whatever may be its abstract power, is practically attempered to the spirit of the age?-Why then unnecessarily superinduce the encumbrance of a coroner's inquest, or of a grand jury, on the proved integrity of a high office, which has upon the whole been so exercised, that the question of the responsibility of the holders has never been sufficiently agitated even to have been solemnly decided, although the slightest provocation would assuredly have generated the fullest discussion?

We stop not at present to remark on the charges which immediately follow, farther than to state, that, right or wrong, they are directed not against the office of Lord Advocate, but against the criminal law of Scotland; for it is the law of prescription in crimes, not the Public Prosecutor, that suspends a charge over a culprit not in

prison for twenty years-it is the act 1701 also, not the Public Prosecutor, which provides, that a culprit in prison, if he do not choose, or if he ne glect to avail himself of it, shall not take the benefit of that statute; and when the Reviewer complains that the presiding judge continues to name the jurors who are to act upon trials, our answer again is, that the nomina ting judge is not the Lord Advocate, no more than the whole Court of Justiciary, (to which it is imputed as heinous tyranny, that it presumes to declare new crimes,) is that public officer. Our object at present is not the vindication of the criminal law of Scotland, or of the supreme criminal court on the points we have enumerated-although we shall undertake this vindication also before closing the article-but merely to shew the reader that, however artfully introduced, these points are essentially foreign to the immediate subject of discussion.

That the Lord Advocate appoints deputies to act for him, but for whom he is himself responsible, is no more than is done, in one shape or other, by every public functionary in the kingdom, who has duties to perform too extensive to admit of the personal superintendence of one individual. But "the Lord Advocate is the organ of the administration under which he acts, in matters purely political; it is from this that the principal dignity and influence of his office is derived;" and we take leave to add, that it is from this also that the rancour against it, in the present instance, has mainly flowed. But although the writer's opinion is, that the Lord Advocate ought to be less of a political character than he now is, so little is his mind made up on this subject, that he adds, " to what precise extent his exclusion from politics ought to be carried, it may not be easy to define." He is quite bewildered, and contradictory, indeed, on this point, and having no precision in his views, has, instead of an argument, treated his readers with the jargon of what is called liberal politics on the occasion. With the same breath with which he invokes the disjunction of the political and legal characters of the Lord Advocate, he admits, that " he can never be expected to be indifferent about the success of his party, and we are by no means romantic about the extinction of party

feelings, which are salutary and necessary things." This writer, therefore, does not expect, he does not even desire, that the great law-adviser of government should be without the "salutary and necessary" stimulus of party feeling. His object is not to eradicate, but to degrade the feeling; he wishes to see the office shorn of its political splendour, and administered by subaltern, and therefore, it is probable, by more vulgar and rancorous agency.

Never, in fact, was such a wretched farrago of contradictions put together, as by the Reviewer, upon this part of his subject. He feels inwardly, although he would fain warp the truth, that the sum of the question is betwixt our ancient system of criminal procedure, and the popular accusations of other countries, and that if our own system is to be retained; and he ventures not even to hint at any essential change;-the Lord Advocate as public prosecutor, must still remain invested with nearly the same powers as at present. Hence it is, that after having in the beginning of his paper recounted and shuddered at the prosecutor's powers, he turns round and rebukes those who have suggested their abridgment, in these terms: "It is not unusual," says he, " to hear it proposed that the Lord Advocate should not be privileged to decline disclosing his informer; that he ought not to be saved from actions of damages; that he ought to have no right to delegate his authority to others; and that some liberal provision should be made for private prosecutions; now it is plain, that these and many similar remedies that might easily be named are inconsistent with the existence of the office."

Are you then, although compelled to retain such an office, to strip it, not of party feeling, be it remembered, for that is confessedly indelible, but of political power? Are you to degrade the individual, to whom the highest trust connected with the criminal jurisprudence of the country is committed, into a sordid agent, instead of being, as he is at present, a high functionary of government? Are you to infliet this degradation for the miserable reason assigned by this writer: viz. that as you can now dispatch a letter from the capital of Scotland to that of England in forty-eight hours, all local administration of the affairs of

Scotland may be dispensed with,-as if there were not a moral distance, a distinct character, belonging to each of the kingdoms, more insuperable than the local distance which has shrunk in the rapidity of modern travelling? Is Scotland to be governed without local aid from any of her public functionaries, like Yorkshire, Northumberland, or Wales, while Ireland has still the splendour of her vice-regal establishment, to console her for the absorption of her rank and wealth by the metropolis of England? -The fact, indeed, that the Lord Advocate has been able to retain the influence which the writer affects so much to dread, in spite of the natural ambition of the secretary of state, to engross it for his own office, is decisive against the whole argument, since the political power could have been retained only on the tenure of public services performed. But what shall be said of that man's consistency, who, pointing to the example of England for our instruction, tells us that the Lord Advocate ought not to be a statesman, because he is in fact but a lawyer-of England, where the crown lawyers are always in parliament-of England, where a mere lawyer is always a distinguished member of the cabinet, and where, both in ancient and modern times, men elevated from the profession of the law, have become illustrious among the most eminent statesmen of the land? But what is quite right in England, may be quite wrong in Scotland. And why?"In the former country there are grand juries and popular elections, and many other institutions which stand between the people and the official accuser." We call upon this writer to explain in what manner popular elections can avail men upon their trial for crimes; and with reference to the alleged undue influence of the public prosecutor in another quarter, we take leave to remind him, that as in every country, to use his own words, " in which there is no parliament, the law necessarily becomes the next important political element, there can be no ground for his alarm, on account of the seductive powers of the Lord Advocate, (so grossly and ludicrously exaggerated,) over the purity of the Scottish bar. For since parliament itself, although exposed defenceless to such arch-betrayers as the cabinet minis

ters, yet maintains a tolerably fair reputation with all but the radicals, its tiny succedaneum in the north cannot be supposed less secure, nor can its possible fall be quite so important to the public, should it even yield to the dangerous arts of his Majesty's Advocate.

And here we cannot but remark, that our Scotch Whigs seem lately to have been driven into some humiliating bargain with their compeers of the sister kingdom, to push Scotland, first for experiment's sake, along the rough road of their fantastical reforms, reserving England untouched, until the issue of the experiment upon her neighbour shall be known. Hence it is their practice not only to deal out a tenfold portion of abuse against every Scottish institution, but even to cover their scandalous designs upon Scotland, by some hollow compliment to the institutions of England. In this base spirit, the writer before us alleges that the power of the Lord Advocate is not only enormous, but surpasses the authority possessed by any one individual in England, or under any free government in Europe,-the sum of this stupendous power consisting after all, as is indeed admitted in the next sentence, in the right to imprison for 140 days at the utmost before trial, and in the further right of declining to prosecute at all, where no just ground of accusation exists-which this honest reviewer candidly interprets as a right of awarding impunity to those whom the public prosecutor may feel disposed to favour!

Now if it be necessary (as we presume to think it is) to secure felons by imprisonment, till preparations can be made for trying and punishing them, it is not clear that the above period could be sensibly abridged, even if the public prosecutor's office were abolished, and the private informer invited to take his place,-while in all other respects the change would be most pernicious and degrading.-As to the other branch of this stupendous power

the right to decline prosecuting, the writer has scandalously, and we fear wilfully, mis-stated the matter, for the purpose of gaining over ignorant partizans. The Lord Advocate may refuse to prosecute when he sees just grounds for such refusal, but he cannot refuse to concur with the private party who chooses to take up the accusation;

and when we state that the private party is not otherwise restrained, except that he must have a legal, which is here generally synonymous with a moral interest, in the matter at issue -that he must swear he believes the charge to be true which he takes it upon him to prefer-and that, if he fail, he shall, as is usual in other cases, be condemned in costs-most of them safeguards against groundless prosecution, generally established, we believe, even where popular accusations are most favoured-it will at once be perceived that crimes can seldom go unpunished in Scotland for want of an accuser, even should the Lord Advocate fail in his duty. To talk of his power of extending impunity to favoured delinquents, therefore, is one of the most impudent de ceptions for which even the Edinburgh Review has hitherto to answer. But the fact, that the powers of the office have not been abused, is the best proof that they are not such as to admit of safe and profitable abuse, when we consider by how many men of very different tempers and talents it has been filled. This decisive fact be comes apparent, even through the veil of the writer's sophistry; it turns up at almost regular intervals in the round of his eternal contradictions. "It may be conceded," says he, "that, in general, the practice of the office has, in ordinary cases, been judicious, moderate, and impartial :" and this is conceded of an office said to present temptations to abuse beyond, not merely the average, but the utmost resistance of human nature. On this essential point of abuse, indeed, the writer shies all explanation. "We must decline," he says, "entering into any details;" substituting for this indispensable commodity, a string of truisms to prove, on general principles, that the office must have been abused, and ought to be reformed. We might answer him, that there is no power, however salutary, however necessary, which may not be abused-that risk of abuse is part of the very definition of the word power-and we might further remind him, that there is no power under Heaven fraught with such enormous and frequent abuse, as his own very contemptible one of scribbling, upon which, however, he would no doubt denounce it as the highest crime

to trench, by sharpening the libel laws. It is, at all events, a mere farce to talk of the Lord Advocate's powers in the lofty strain of this writer, when inviting an effort for their curtailment, and to describe them as surpassing the powers possessed by any man in England, or in any free state of Europe. There is not a head of one of the great public Boards in England-of the Treasury, for example who has not effective political power, compared with which that of the Lord Advocate is not even to be named; for, while his Lordship has, for the protection of the community, to deal, for the greater part, with its very dregs, upon whom no punishment which he could either inflict or avert would weigh as a feather in the scale of influence, the head of such a Board is daily, and hourly, disposing of numerous applications where the parties are not without political weight nor insensible to political favour; and yet, such is the force of public opinion, or, what this writer will less believe, perhaps, the common honesty of public men, that this vast business is, in the general, conducted without a breach of honour, or the imputation even of corruption.

The writer not only insists on purifying the Public Prosecutor, as he is pleased to express it, by withdrawing him from the contagion of politics, but he demands a thorough revision of the act 1701-the Magna Charta of Scotland, and therefore the subject of fitting derision for this great reformer-about which he tells an unfounded story of its having been framed by an enemy of freedom in disguise, whose real object was not to shield the prisoner, but inextricably to perplex the law.

He contends, in the first place, for an abridgement of the period of one hundred and forty days, the limit allowed to the prosecutor for preparing and closing the prosecution; but he does not say what the abridged period ought to be. He admits that even more than the present period may, in some cases, be necessary, as more than five months intervene betwixt the circuits; and, to crown the whole, and strangle his puny argument in the birth, he further admits, that the granting of the Prosecutor's application to the Court for further time, "might, perhaps, soon become a matter of course!"

-thus, encumbering the criminal proceedings with an unmeaning mockery, and leading, in the issue, to a more disastrous prolongation of imprisonment than is ever permitted under the law as it now stands.

His next objection to the act is, that an application to the Court is required to receive the benefit of it-an application attended, he says, with expense, endangered by technicalities, and often foregone from the reluctance of prisoners thus to wage war with the prosecutor-for which reasons, this writer proposes that the benefit of the statute should be extended to all persons indifferently, and as matter of course. Not to mention the deception which this statement attempts to prac tise on those who may not chance to know that the cost and difficulty of the application are imaginary-not to notice the flat contradiction betwixt this mendacious hint, that the Lord Advocate may take offence, because a wretched prisoner claims the protection of the law, with the large admissions of the writer, as to the honest and humane exercise of the office, and, indeed, with the relative condition of the parties thus supposed to give and take offence-we would mereÏy observe, that, since in order to secure, the party needs only to will the benefit of the law, there can be no ground for reasonable complaint, Cases not unfrequently occur, where a short imprisonment of the delinquent may answer all the ends of justice, but not all the demands of law, were it rendered imperative to bring him to trial; and surely, in such cases, his interests are not inadequately consulted when he may, if he decline reposing on the indulgence of the prosecutor, take the verdict of a jury and the judgment of the Court upon his case-as it is at all times in his power to do.

But the writer's complaint in behalf of those who are neither imprisoned nor indicted, but only charged or suspected of crimes, and who can have no remedy but to run the usual course of prescription, appears to us, upon the whole, the most groundless of all his murmurings-since we can discern no other difference betwixt persons once suspected or charged, but neither imprisoned nor indicted, and any other known or suspected criminals in the land, except that the presumption of guilt in the case of the former is pro

VOL. XV.

bably stronger than in that of the latter; so that the Reviewer's appeal, if it have any meaning at all, plainly resolves into a complaint against the vicennial prescription of crimes in Scotland, a complaint which will hardly gain a favourable hearing with those who know that crimes prescribe in Scotland, in half the period which must elapse to extinguish, in this manner, a common bond or obligation for debt.

The prisoner, and through him the community, are, however, it is said, exposed to further and indefinite risk, by "the three circumstances" which fill the Reviewer with horror," of the Court naming the jury-having the power to declare new crimes-and all its judgments being irrevocable." These three "circumstances," however, have, strictly speaking, nothing to do with the office of the Lord Advocate, but concern the constitution and powers of the Supreme Criminal Court alone.

On the first" circumstance," about which the people of Scotland neither know nor care, except as it is the sole eircumstance which has intimated to them the political existence of so distinguished a legislator as Mr Thomas Kennedy, the Reviewer declines to say anything, and we shall therefore extend to him, in return, the mercy of our silence.

As to the power of the Court to declare new crimes, it is right that the matter should be thoroughly understood both here and in England. The Court cannot declare a new crime to which a capital punishment is to be annexed. In fact the sum of its power in this respect is to award some inferior but not inadequate chastisement for offences that may emerge new in their type and circumstances, but analogous in moral depravity to some class or classes of crimes, as to which it has for ages exercised unquestionable jurisdiction. And here again we ask, where is the wrong that has been done?-where the practical evil that demands a remedy?-Has the Court, in any instance, authoritatively decla red that, which the moral feelings of the people had not already pronounced, to be a crime?-Is it no advantage, that, while in other countries statutes, although multiplied on statutes in endless confusion, are ever distanced by the rapid inventions of crime, in Scot land there is confided to the appoint

3 X