er's son might fall a victim to his own tongue;' in 1752 this case, Allan Breck would have said no more than what was notoriously just and true, viz. that the resentful expressions used by the prisoner and his son against Glenure would bear hard upon them.

This trial, upon the whole, points out the propriety of two alterations being adopted in the criminal-law, of Scotland: 1mo, That the prisoner should here, as in England, have a power of challenging a certain number of the jurors, without cause assigned. 2do; That, in the Highlands of Scotland, where the districts are peopled by tribes or clans, between many of which inveterate feuds did subsist, a prisoner should have it in his power to say, 'I who am a Stewart will ⚫ not be tried by a jury of Campbells, for the murder of a Campbell,' or, 'I who am an officer of excise, 'will not be tried for the murder of a smuggler, in a country where all merchants, farmers, &c. are smugglers.' And, as the lawyers for the crown have it in their power to bring a prisoner from the district where he lives, or where a crime has been committed, to stand trial before the High Court of Justiciary at Edinburgh, so a prisoner likewise should have it in his power to avoid the prejudices which may be entertained of him in a particular district, and to claim being tried at Edinburgh.

Kk

1773

B

Malcolm M'Gregor, alias John Grant, for the Murder of John Stewart, both of the Parish of Glengairn, in Aberdeenshire.-Doctrine of Prescription of Crimes Established.

THE prisoner was brought to trial before the Circuit Court of Justiciary, at Aberdeen, in Spring, 1773; but as he pleaded in bar of the action, a general point of law of great importance, his Majesty's Advocate depute deserted the diet, recommitted the prisoner upon a new warrant, and served him with a new indictment; upon which he was tried before the High Court of Justiciary, at Edinburgh, on the 26th July, 1773. He was charged with enticing John Stewart tenant in Abergairn, on the evening of Christmas day, 1747, to a remote place, and there, from premeditated malice, striking him from behind with a stick, and then stabbing him in the left side with a durk, so that he died that same night; and that, before his death, he declared it was the prisoner who had thus assaulted and wounded him: that the prisoner immediately fled, changed his name from Malcom M'Gregor to John Grant, and had not since been seen in that part of the country, except to a few persons privately, and under cloud of night.-And that a warrant for apprehending him was issued by the late Lord Minto, on the 21st of January, 1748; but, by reason of the prisoner's changing his name

* i. c. dropped the prosecution.

Records of Justiciary, 26th July, 9th August, 1773.

and place of abode, he never could be found till late- 1773 ly, that he was discovered and apprehended by the sheriff of Edinburgh.

The celebrated Alexander Lockhart, counsel for the prisoner, represented to the Court, that no action could lie upon this indictment; because the crime charged in it was said to have been committed in the year 1747, and consequently was prescribed by the lapse of more than twenty years. Counsel were heard at great length. The Court then ordered both parties to lodge informations, in order to their being recorded in the books of adjournal.

In the information upon the part of the Lord Advocate, it was argued, Imo, That the vicennial prescription of crimes in the Roman law, which the prisoner made the foundation of his plea, did not extend to every species of crime; but that, in those of a deeper die, such as parricide, and some others inter graviora delicta, no prescription took place. 2do, That the civil law was no part of the common law of Scotland, although its rules were often adopted, and its principles much respected, in such cases as did not fall within the enactment of our statutes, the decisions of our Courts, or the opinions delivered in approved systems of our law. His Lordship next maintained, that, in the common law of Scotland, there was no vestige of a prescription in crimes; for the punishment of murder was a part of the most ancient common law of Scotland; but our old trea

A law case in Scotland, which contains both the fact and argument, is sometimes entitled an information, and sometimes a memorial.

1773 tises made no mention of the doctrine of prescrip tion; nay, the word prescription was not to be found till the year 1469, when it was introduced in a statute, and, even then, it related to civil obligations, and not to crimes.-His Lordship maintained, that the opinions of our commentators upon this head, which were urged in behalf of the prisoner, viz those of Sir George M'Kenzie, Mr. Forbess, and Mr. Erskine, were neither sufficiently explicit, nor of sufficient authority, to make the prescription of crimes be deemed a part of our law; and, on the other hand, Lord Fountainhall laid down this doc trine, that the vicennial prescription of crimes had no'place with us. And that, in the whole of our records, no judgement could be found sustaining this plea in bar of action, while there were many in stances of persons being tried for crimes more than twenty years after their commission. Farther, it was contended, that by the law of God, which is a part of our law, there is no prescription of murder. And, lastly, That it would be highly inexpedient to establish a defence in bar of prosecution against a murderer; because nothing contributes more to check murder, and other attrocious crimes, than an impres sion upon the minds of the people, that, when once committed, no lapse of time will expiate the offence in this world, or prevent the punishment. There was also subjoined to the information for the prosecutor, a list of cases from the books of adjournal, where prisoners were tried at the distance of more than twenty years from the commission of the crime. They were mostly in trials for witchcraft, and one of them for incest committed thirty-five years before.

It was stated in the information for the prisoner, 1773 that, although conscious of innocence, and certain that he could not be convicted by a fair proof of the crimes laid to his charge, his counsel had thought it their duty to plead the obvious defence of prescription, in bar of this prosecution:-That, in a period of twenty-five years, which had elapsed between the death of John Stewart, whom the prisoner was accused of having murdered, and his commitment, in order to stand trial, he had resided constantly in Scotland, and chiefly in Aberdeenshire, the theatre of the alledged crime; that he had publicly carried on business, in an honest and industrious manner, and with an unexceptionable character; and that the change of his name, and place of abode, was owing to the attempts of a recruiting serjeant to trepan him as a soldier, which induced him to lay aside the name of Macgregor, which was proscribed by law, and to assume that of Grant.

Upon the point of law, it was argued, that a vicennial prescription of crimes was an established doctrine of the Roman law; and, in support of it, several texts from the Corpus Juris Civilis, and other authorities, were quoted; particularly, Cod. lib. 9. tit. 22. l. 12.; lib. 1. tit. 7. l. 4. digest.; lib. 44. tit. 3. l. 13.; lib. 49. tit. 14. l. 1. § 4.; lib. 48. tit. 17. 1. 3, lib. 48. tit. 16. 1. 11.; and Mattheus, Tit. de Praescriptione Temporis; Voet. Tit. de Diversis et Temporalibus Praescriptionibus, § 6.; Cujacius, vol. 4. col. 1338.; Heineccius ad Pandectas, lib. 44. tit. 8. § 370. &c. &c. It was maintained, that the civil law was one of the fountains of our jurisprudence, and, in reality, a part of it, where our own statutes,