Treafon may be pursued either at the Inftance of a private Informer, or at the Inftance of the King's Advocate, who is ratione officii, calumniator publicus: If a private Perfon inform, then his Name muft be expreft, to the end he, nor none of his Relations may be us❜d as Witnesses; he must find Surety that he fhall prove, and that he fhall infift, as being liable in * pænam talionis, if he fail in proving the Crime. When the Pursuit was to be carried on for the publick Intereft, the King's Advocate examined the Witneffes alone; but Sir George Mackenzie thinking the Advocate might have been jealous'd, as too interested, prevail'd to get this Examination referr'd to the Judges, who in all Nations enquire into the Grounds where upon Purfuits are to be rais'd, and after the Depofitions were taken, and fign'd by the Fudges and Witneffes, the Advocate prefents them to the Privy Council; and if, after reading them, and a full Debate upon them (many of the learned Lawyers of the Nation being Privy Counsellors) it be found by Vote of Council, that there is Sufficient Ground from the Evidence to raise Proceß of Treafon, then there is an Act of Council drawn, ordering the King's Advocate to infift; but in this Tryal, the Advocate, tho' a Counsellor,never votes. The Reason why this previous Examination is allow'd, is to fecure the Subjects against their being rafhly and unwarrantably pursued or profecuted without fufficient Grounds: But left a Witness might have lookt upon himself as pre-engaged by this previous Depofition; therefore these first Depofitions were always torn, and the Witnesses declared free from whatever they had formerly depos'd.

To ftrengthen the Security of the Defendant or Party accufed, Sir George Mackenzie us'd to interpofe with the Officers of State, before the Depofitions were brought into the Council, and to represent to them his own Scruples: And if the Officers of State continued still of Opinion that a Proceß was to be rais'd, or the Party accused to be proceeded againft, then he defired the ableft Advocates of the Nation to be called, before whom the Depofitions were read, and if they concurr'd with the Officers of State in their Judgment of the Matters being Criminal, then thefe Advo

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That is, the fame Punishment which the Law provides against such a Criminal.

cates

cates were ordain'd alfo to concur with him in the Purfuit. And many of the most Learn'd and most Popular Advocates did concur with him in the most intricate Cafes; as in Argile's, Jerviswood's,&c. which is not to be imagin'd they would have done, had they thought their Pleading in thefe Cafes any Guilt or Fault.

Tho' by the Laws of England and other Nations, the Defendant is allowed no Advocates to plead for him in Criminal Cafes, but especially not in Treafon, except where the Judges can fee debateable Points of Law; yet left the Defendant may by Ignorance or Confufion omit to reprefent those Matters of Fact,from which new Points of Law may arise; therefore Our Law allows always Advocates to the Defendant, and forces any whom he does name to accept the Employ. Act 91. Parl. 2. Ja. VI.

Tho' by the Laws of fome Nations no Witneffes are allow'd to be produc'd for the Defendant, but fuch as do appear voluntarily; yet when Sir George Mackenzie was a Judge in the Criminal Court, which answers to the King's Bench in England, he ordered for the Good of the People the Remedy of Exculpation, whereby the Defendant representing, that he has fome Defences, a Warrant is giv'n to force the Witnesses whom he names to appear, under fevere Penalties; and fuch Time is granted to him and them, as may be fufficient for their Appearance; and thefe Witnesses when compearing are examined upon Oath, and the Jury is obliged to believe any two of them (tho no Witnesses are allowed to fwear against the King in England.) This Order was thereafter turn'd into an Act of Parliament. At 16. 3 Seff. Parl. 2. Ch. II. Article 2. And alfo to take off all Poffibility of Packing Juries in Edinburgh, where generally the Juries are chofen, 'twas ordered by the Judges, at Sir George his earnest Request, That the Town of Edinburgh should give up a Lift of all their Housekeepers who were able to pass upon Juries, and that all these should be named per vices, according to the Situation of the Place where they liv'd.

were to

Art. eod. II.

Because the Defendant did not know what Witnesses be produced against him by the Kings Advocate, and fo could not have Witneffes ready to prove his ObjeEtions against them, therefore Sir George prevailed with the Parlia

ment

ment that the King's Advocate fhould be for ever after obliged to give with the Indictment a Lift of what Witneffes or Members of Inqueft were to be used by them; And an Order is given for citing any Witneffes the Defendant pleafes,with a competent Time for bring. ing them. Fifteen Days being ftill the leaft Time allowed by our Law, for preparing the Defendant in all fuch Cafes.

When the Day of Trial or Appearance comes, the Witnesses who were prefent at the giving the Citation, are obliged to depofe upon Oath, That they truly fam the Citation given: Thereafter the King's Advocate produces his Warrant: Nor did ever Sir George Mackenzie profecute any Man until he was commanded by the Council, and till he produced his Warrant, (as ftill appears from the Records of the Council and Criminal Court, to both which he folemnly appeals ;) and then the Indictment is read; after which the Advocates for the Defendant dictate to the Clerk his Defences; to which the King's Advocate dictates his Replies; the Defendant's Advocates again their Duplies, &c. and that to the End the Judges may the better confider what is faid, and may ftand in Awe of Pofterity. After the Debate is clofed, the King's Advocate and all others retire, and the Judges having read fully the Debate, they argue the Cafe amongst themselves, and thereupon they by their Interlocutory Sentence find fuch and fuch Points to be relevant, that is to fay, well founded in Law, and they fign this Interlocutory Sentence or Judgment, which is impofed as a further Tye upon the Judges, for the Security of the People; nor are Witnesses allowed to be examined upon any thing, but what they have found thus to be legal.

The Advocates for the King and Defendant being both called in before the Court, the Defendant hears the Sentence read, and then the Forty five Jurors are called, and the Defendant's Objections against them are difcuffed; and tho' of old the King's Advocate had the Naming of the Fury, as being prefumed dif-intereffed, Art. 3. ejufdem. yet Sir George Mackenzie prevailed to get an Act of Parliament, whereby the Nomination of the Fury was referred to the Judges, Fifteen of thefe Forty five only are ad

mitted

mitted as a fufficient Jury, and the Defendant is allowed to chaldant lenge or reject, without giving anyGround or Reafon for it,any Thirty that he pleafes of that Number, and the Fifteen who remain make up the Jury, and are fet by the Judges.

The Jury being thus conftituted, in the next place all the Witneffes are called in before the Court one by one, and not allowed to hear what one another fay; and after the Objections against fuch Witneffes are fully debated in Writ and upon Record, the Witneffes are either admitted or rejected, as the Judges find Ground in Law and Equity: If admitted, the Prefident of the Court examines only upon what is found legal or relevant in the Indictment. And in the next place, he is examined upon any Interrogatory that is moved either by the Defendant, or any of the Jury for him, and then the whole Depofition is dictated by the Prefident of the Court, and is fully read in the hearing of the Witness, and of the Defendant and his Advocates; and if they defire any thing to be corrected, it is accordingly done, if the Witness agree with them in the Correction. And in the last place, the Depofition is figned by the Prefident and the Witness that gave it.

All the Depofitions being thus taken, the Advocates for the King, and Defendant, fpeak to the Jury in a full Harangue; but becaufe the Publick Intereft was ftill to be preferr'd to private Men's, therefore our Law allowed the King's Advocate to be the last Speaker in all Criminal Cafes, till Sir George prevail'd Art. 10. with the Parliament to give the laft Word to the Defendant in all Cafes except that of Treafon, because ordinarily the greatest Impreffion was fuppofed to be made by the laft Pleading.

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The Debate and Examinations thus ended, the Jury are enclofed, and get in with them the whole Debate, interlocutory Sentence and Depofitions in Writing, figned by the Fudges, Clerk, and Witnef fes. This inftructs them fully how to proceed; and after they have chofen a Chancellour (or Foreman) and a Clerk, they read all the Process, and debate fully upon it; and to the end every Juror may stand in awe of Pofterity, it is marked by the Clerk in the Verdict, who abfolved, and who condemned; and as no Witness can

be

3

Act 92. Sef.II. Fac. 6.

be examined but in prefence of the Party indicted, fo if any Man fpeak to any of the Jury after they are enclosed, the Defendant is for ever Free. And tho' of old the Clerk of the Court was used to be enclosed with the Jury for their Direction; yet Sir George Mackenzie procured, That, because the Clerk had fome Dependance upon the Crown, he might be excluded from going in with them, and that they might choofe their own Clerk; which they ufe accordingly to do fince that Act. Art. 8. of the forefaid Act 16.

By this it appears, that no Nation is more nice in fecuring the Subject, or have ever fhewed more Judgment in Proteffes or Proceedings of Treafon, than Scotland has

In the next place I mutt obferve, That no Nation has ever blamed a King's Advocate for affifting in Criminal Processes, nor lies there any Action or Scandal against him any where on that Account; as can be proved from many Hundreds of Citations of the best Laws and Lawyers; but he darkens his own Cause, when juft, who uses these to ignorant People; and he leffens his own Efteem, who thinks he needs them amongft Men of better Senfe: The Law trufts him intirely as a publick Servant, who manages these Pursuits by Virtue of his Office, and not by Malice. The King's Advocate muft either have a Negative over the King and all the Judicatories, by refufing to concur, by which he might make the justest Pursuit useless; for tho' he should lay down his Employment, yet it would give an ill Impreffion even of the best Cause) or other ways he must be obliged to concur: In which Cafe he can do no Prejudice; because Judges are prefum'd to be Learned, and the Advocate is ftill to be confider'd as too interested, to have any dangerous Influence: Nor can he abufe the Jury with any Mifreprefentation in point of Law, for they are only allow'd by our Law to confider what is meer Matter of Fact, and whether the precise Point of Law referr'd to them by the Judges, be prov'd by these Depofitions of the Witneffes which ly before the Jury in Wri ting. Judges may err in point of Law, and Juries in point of Fact, but neither of thefe are intrufted to the Advocate, fo that poor People are abus'd extreamly when they are informed that the

King's