of whofe office lies beyond the memory of record. Were that the cafe, there would be more field for his arrogating to himself extraordinary powers and extraordinary privileges: but it is clear, that in that capacity, he is a creature of fpecial statute, having this power given him by the act 1597 above quoted. As therefore his powers are given him by statute, fo, it is apprehended, by ftatute only they ought to be explained: they cannot be extended wider than the ftatute authorises them to be; and it will not be fuppofed, that unusual privileges are implied in the words of the statutes that gave him his powers. There is no foundation in them for that very extraordinary privilege which he claims, of not being amenable in the ordinary courts of justice, and being accountable only to the fovereign for the execution of his office. As therefore the statutes themselves give no warrant for supposing him vested with fuch a privilege, so there is no precedent in any court tending to this purpose; on the contrary, many precedents have been quoted that have an oppofite tendency. The refpondent, therefore, cannot be allowed to argue at large concerning the powers of his office from hypotheses and fuppofals. The laws that made him are still in existence; and from these laws only can it be judged what powers and privileges were meant to be beftowed on him. Befides that there is not the most remote foundation in those laws for the privileges which he now claims, they feem adverfe to the principles of the British constitution; and therefore would not readily be received upon implicatións and conftructions drawn from a statute, unless they were very plainly fet forth in the words of it. Upon the whole, therefore, the petitioner humbly apprehends, that the plea which is fet up by the respondent in behalf of his office, That he is not judicially amenable to the courts of justice, is altogether unconstitutional, and confequently illegal. If he, an officer appointed at the pleasure of the crown, is accountable only to the fovereign for his conduct in his office, and may at the fame time refufe to bring to trial crimes which cannot be tried without his inftance, there is certainly, indirectly, lodged in the crown, a power of difabling PP difabling the penal laws of Scotland, contrary to the claim of right, whatever the refpondent may pretend: and though his conduct in this case must be judged of from the circumftances of the case itself, yet as the general point is of the utmost public importance, it is humbly apprehended your Lordships will think proper to give a general judgement, concerning the powers of an office which the refpondent has pleaded for to fuch an extraordinary height." NOTE of OPINIONS. AUCHINLECK. Inconveniencies would arise from obliging the Advocate to bring profecutions on the opinion of others. -Indemnification as to expence not enough: -but as here an atrocious crime, the court may recommend to him to take notice of it. ALEMÖÖR. Court cannot interpose.-Sufficient precautions taken for the punishment of crimes. - Improper for judges to direct profecutions.- Judges in England cannot compel a grand jury to find a bill. Had the Advocate refufed his concourse, he might have been compelled to give it ; for every one intitled to justice: but he cannot be forced to prosecute. — In this the petitioner desires the court to become the profecutors, and they know nothing of the proof.—If the Advocate was to be forced to profecute, the defender, if acquitted, would be deprived of costs and damages. COALSTON. Crimes affect either the public or private parties. Power of profecuting the first lodged with the Advocate, who is in place of the grand jury. His duty in most cases to profecute, when the precognition ftrong; but the court cannot direct him-Ecclefiaftical courts *.-But it is the duty of the court to recommend to him. PITFOUR. A recommendation proper, when a crime comes incidentally before the court; but that not the cafe here. There is no public profecutor before them.The note is very imperfect.. KAMES. KAMES. King's Advocate anfwerable to the King.-Romans forced to make a law, obliging those who accused infcribere in crimen. June 21. 1766. Court refused the defire of the petition. For the petitioner, Ilay Campbell, Crosbie, Blair. D. Dalrymple. N° 75. Alt. Montgomery, Sir Feb. 1767. ROBERT ROBB, first magistrate of the borough of Wefter Anftruther, with concourfe of his Majesty's Advocate, AGAINST GABRIEL HALLADAY, Schoolmaster there. Perjury. HE criminal letters in this cafe fet forth, "That where, by ΤΗ the law of God, of this and all other well-governed realms, the crime of perjury, or affirming lies or falfehoods judicially upon oath, is a crime of a heinous nature, and severely punishable; and more particularly, by the 19th act of the 5th parliament of Queen Mary, intitled, Anent them that maries twa wives or husbandes, the pains to be inflicted on those who commit perjury are declared to be, "Con"fifcation of all their gudes moveable, warding of their perfones “for zeir and day, and langer induring the Queenis will, and as "infamous perfons, never able to bruik office, honour, dignitie, nor benefice, in time to cum :" Yet true it is, and of verity, that the said Gabriel Halladay is guilty, actor, art and part, of the crime of perjury aforefaid; in so far as, a complaint having been prefented to the court of feffion, at the inftance of Robert Hunter landfurveyor of the customs at Anftruther, and others, founded upon the statute of the 16th year of his late Majefty, intitled, "An act "to explain and amend the laws touching the elections of members "to ferve for the commons in parliament, for that part of Great "Britain called Scotland, and to restrain the partiality, and regulate P p 2 "the "the conduct of returning officers at fuch elections;" and praying the court to reduce, and make void, the election of magiftrates and counsellors of the borough of Wefter Anftruther made on the 18th day of September 1765; to which complaint anfwers were made on the part of the prefent complainer and others: and a proof being allowed, and Alexander Tait and David Rofs, principal clerks of feffion, Alexander Gray, Robert Leith, and Alexander Rofs, deputeclerks of feffion, and Mr James Balfour Advocate, or any one of them; and, failing all of their attendance and acceptance, the fheriff-depute of the county of Edinburgh, or his fubstitute, being named commiffioners for taking the faid proof, the faid Gabriel Halladay was cited as a witness on the part of the complainers; and having compeared in the presence of Mr James Dundas Advocate, fheriff-substitute of the faid county of Edinburgh, one of the commiffioners, he the faid Gabriel Halladay, having fhaken off all fear of God, and regard to the laws, did, on the 20th day of February 1766, or on one or other of the days of that month, or of the month of January immediately preceding, or of the month of March immediately following, in prefence of the faid commiffioner, within the Exchange coffee-houfe in the city of Edinburgh, emit a depofition, affirming falfehoods judicially on oath, in fundry particulars; and more particularly, the faid Gabriel Halladay, time and place aforefaid, did depone, "That upon the Monday or the Tuesday of the "week in which Sir John Anftruther came to town, Robert Peattie came into his house about eleven o'clock at night, from a meeting "of the council in Robert Lyall's house, and was informing his "wife how the council was to be modelled; upon which she said to “her husband, I wish we may make an ox of it: That Peattie anfwered, 1 expect fix oufen of it; for I expect L. 50 to the chefst"nuik, and a poft to Tam;" although no fuch converfation ever paffed between Robert Peattie and his wife. And the faid Gabriel Halladay did further depone, "That the night following, the deponent heard Robert Peattie fay to his wife, Now we are all Mr "Alexander's friends, and have shook hands with him, except Bai "lie Brown, who had fhown fome reluctance, for fear of lofing his 66 poft; and that Mr Alexander had said to him, he needed not be afraid of his petty post, for he should take care that he fhould be no loser by joining his intereft. Depones, That Peattie at this σε time told his wife, That Mr Alexander had called them all one by one into a separate room, beginning with Bailie Brown; but the deponent did not hear any mention made of what had passed in that separate room; and that, as foon as they had all returned "from this feparate room, and taken their former feats, Mr Alexander drank to them all as his good friends: That the fame night "Peattie faid to his wife, You fee the fruits of it now, holding out his "hand to her; and that she said, I'll warrant there is forty there. "To which Peattie said, there is double the fum. And being interrogate, How he came to know, that Robert Peattie was holding out his hand to his wife at the time he used the above expreffion? depones, He prefumed fo from the converfation. Depones, That "there was fome altercation betwixt them that night about the difpofal of the money, the husband being for putting it into fome "fecure hand, and the wife for keeping it among themselves, that no body might know any thing about it; and faid, fhe would not 'lay it out upon braws, as fome others had done, but would use it ແ σε to buy a piece of meat to themselves through the winter; and they "concluded to lay it by in the folds of a board-cloth;" although no fuch facts or converfations as thofe depofed to ever were held, or did happen. And further, the faid Gabriel Halladay, time and place aforefaid, did depone, “That some time after, one Mr Stewart, a halfpay-lieutenant in the navy, came into the houfe; and the deponent heard him defire Mrs Peattie not to change any of the notes while they were in the place, in cafe they fhould be difcovered; but defired her, when they wanted money, to let him "know, and fhe fhould be fupplied: That Mrs Peattie answered, "She would keep none of them; for the first time fhe faw Mr Alexander, fhe would have gold for them." And in another part of his depofition, he depones, "That the converfation with Mrs Peat แ "tie |