that it is clear, that every profecutor, unless he obtain leave from the court, is under a legal neceffity of proceeding.

As to the profecutor's other miflake, the truth is, that the powers of the Advocate do not differ from those of a private profecutor; or if there is any difference, thofe of the latter are the most extenfive. In the early periods of our law, there was no public profecutor. It appears from our old law-books, that profecutions anciently were brought either at the inftance of private parties having a proper title, without any public aid or concurrence, or elfe without any private profecutor, upon a dittay taken up by an inqueft, much in the fame manner that bills are found by a grand jury in England; and a roll of these dittays was called the Porteous roll.

Punishments, during the infancy of our law, were but few in number, and generally corporal; afterwards it became fashionable to punifh by efcheats, forfeitures, and fines. Hence the fifk had an interest in every trial, and its officers lent their aid to profecutors. This practice probably crept in about the beginning of the 16th century, as before that there is no mention of the Advocate as a public profecutor, nor indeed any mention of him at all. Long after he interfered in trials, he never proceeded without a private profecutor, who, in our statutes, is generally denominated the "informer. This appears in part from the above-mentioned act 1579, and from feveral others. His intereft was dependent on that of the private party, who could discharge the prosecution without the Advocate's confent, and against his will: but by the ftatute 1587, c. 7. it is enacted, That the treasurer and advocate purfue flaughters, and other crimes, though the parties be filent, or privily agree. That this act passed merely in commodum fifci, is plain from the treasurer having a right of action as well as the advocate. But it gives no powers to either of them beyond what the private party poffeffed; nor can it be interpreted fo as to make the instance or concourse of either necessary in criminal proceffes, or to exclude a private profecutor, who has a proper title, from infifting, without the aid of the public officer. And fo Sir George Mackenzie understands it: for in his obferva

tions upon it, he fays, "As parties may purfue crimes without "concourse of the King's Advocate, fo by this act the King may "pursue without an informer, ad vindictam publicam." No ftatute fince hath increased the Advocate's power in this matter; fo that it now ftands precisely as it did in 1587. Whatever inclination there may be at present to magnify his power, this proceeds probably from this office having been exercised for a long period with great propriety; but as the experience of times paft fhows it has been abu-· fed, there is great reafon to beware of stretching its power beyond the limits prescribed by law.

As to litisconteftation, crimes are perhaps rarer in Scotland than in any other country. The confequence of which is, that our criminal law is not well afcertained by precedents; and it would appear the point in question has never been deliberately argued or determined but it often has in the civil courts, Dict. voce Procefs; and there is reason for giving as much effect to litiscontestation in criminal as in civil cafes. Indeed there is more reafon for fhortening the procedure in criminal trials; and accordingly the forms of court are all calculated fo as to effectuate that purpose. Hence the diets are peremptory.

The forms of the Roman law are not well known to us; and it is unneceffary to enter into a difquifition upon litisconteftation among the Romans; for it is not upon a word that the prisoner's argument rests. The profecutor's quotations apply only to the proceedings before the prætor in civil cafes: the criminal trials were before the comitia, where neither prætors nor judices pedanei could interfere.

Though it is true, that men cannot by contract dispose of their life, liberty, or limbs; yet the judicial acts and deeds of parties may produce certain effects, which, if investigated by principles, refolve into a judicial quafi contract. Thus a man may plead guilty, and will be condemned upon his own confeffion, without any proof. He may wave objections to the relevancy, go to trial, and be convicted; nor would the proceedings be annulled, though it could be

fhown, that a good defence lay against the libel, and that the prifoner knew it.

This affords an anfwer to the cafes of Hamilton, Stuart, and Sinclair for in none of thefe was any objection moved against deferting the diet; fo that the prifoner was tied down by his own tacit confent; and in Stuart's cafe the motion for deferting the diet exprefsly referved a power to bring a new action. And as to Ronald's cafe, in fo far as it finds any more than that the verdict was illegally returned, it determines a cafe that was not truly before the court, and of which it had not an opportunity of being deliberately informed : fo in that view it cannot claim the authority of a precedent. But further, it is not to be inferred from the judgement in that cafe, that an interlocutor on the relevancy does not give the prifoner a jus quæfitum of going to trial upon the libel that has been found relevant; it only establishes, That when the death of a juryman, or fuch accident, makes it impoffible for the jury that was charged with the prisoner to return the verdict, that jury may be discharged, and a new one called: but it follows not from this, that the second jury is to be unconnected with the libel. The fame libel that was exhibited in court is that on which the trial must proceed; and the prifoner must be tried by a jury felected out of the lift of forty-fivefubjoined to that libel..

As to the law of England, quoted for the profecutor, its forms are quite different from thofe of the law of Scotland. With us every point of law ought to be fettled before the libel goes to the jury; and regularly no question of law can occur after a verdict, excepting it be fpecial: but in England, every thing is entire to the laft, and be pleaded in arrest of judgement after the verdict. At the fame time, however, the cafe quoted from Foster has no connection with the prefent. The prisoner had been led into an error in point of form, by relying on the opinion of the court. The error was dif covered in time; and the court, profecutor, and prifoner, all concurred in laying hold of the legal remedy..

may

The

The court pronounced the fame interlocutor upon this indictment they had done on the former, and the trial proceeded.

The jury brought him in not guilty. the opinions on Campbell's cafe in 1769.

Act. Pat. Murray.

See the reason in one of

Alt. Crofbic.

N° 82.

September 1768.

JOHN LACHORE, with concourfe of his Majesty's Advocate,

AGAINST

JAMES STEVEN, and others.

Libel, in which, by mistake, most part of the major propofition was left out, difmiffed.

TH

Hefe defenders were brought to trial, for a riot, before Lord Alemoor, at a circuit-court held at Glasgow in September 1768. By mistake, in writing out the criminal letters, the greatest part of the major propofition was a-wanting; for they fet forth, "That whereas by; yet true it is and of verity, that-" and then the fact followed.

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It was objected for the defenders, That the libel ought to be difmiffed, because it was not founded on any law, and was nonsense as it ftood.

Anfwered, The libels are commonly conceived in the form of a fyllogifm; yet it is not neceffary they should be fo. It is fufficient to charge a criminal fact properly; and that is done in the minor propofition of this libel.

Replied. Suppofing a fyllogistical form were not effential, yet when that form has been adopted, it furely must be followed out.

The judge difmiffed the libel.

a. Crofbie.

3 P 2

Alt. Maclaurin.

N° 83.

N° 83.

Nov. 1768.

The PROCURATORS-FISCAL of the Sheriff-court of Edinburgh,

AGAINST

JOHN FORTUNE, and others, vintners and poultrymen in Edinburgh.

Game laws.

S the facts and arguments on both fides are fairly ftated in the paper for the procurators-fifcal, it shall be inferted ad longum.

Anfwers for John Gibson and William Walker, conjunct procurators-fifcal of the fheriff-court of Edinburgh, to the petition and appeal of John Fortune, &c. vintners in Edinburgh; and to reafons of appeal for John Watson, &c. poultrymen in Edinburgh, from a judgement or interlocutor of the Sheriff-depute of Edinburgh, pronounced against them upon the petition and complaint of the faid John Gibson and William Walker.

The Scots legislature had an early attention to the preservation of the game. They confidered the fports of the field as connected with that turn and difpofition of mind adverse to softness and effeminacy, and productive of useful and manly atchievements..

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That fuch was the opinion of our forefathers, we learn from various parts of our statute-book. Thus the preamble of the act of James VI. 1600, cap. 23. against the slaughter of wildfowl, fets forth, "Forafmeikleas, by common confuetude of all countries, fpecial prohibition is made to all forts of perfons to flay wyldfowl, hair, or vennifon, except fik as by their revenues may beare the charges and burdings of the haulkes, hounds, and dogs, requi"fite in fik paftymes, in refpect the famine as well hes been created "for the recreation of mankind as for their fuftentation; lykeas "it is of truth, that by diverfe and fundry acts of parliament, o

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"ther