upon every point in the whole case, except that in the latter it was done in public and with greater securities.'-1843, Kelly, 1 Broun 543. See to same effect, 1846, M'Gavin, Arkley 70. See also, Feb. 1827, Elder, Syme 115. A writing of the accused, made after apprehension at request of the fiscal, refused in evidence.-5th May 1857, Hendry, 2 Irv. 619.

Where a party cannot speak English, there must be an interpreter sworn to interpret, and named in the declaration, and who must subscribe as such. In that case the witnesses should also know the language interpreted, otherwise the whole would then depend on the fidelity of the one interpreter.-13th April 1839, M'Kenzie, 2 Swinton 345. The caution must be given through the interpreter, and the declaration read over slowly in the language known to the accused. Sometimes considerable trouble is occasioned by parties claiming this privilege without sufficient grounds; but the safe course, wherever it cannot be satisfactorily proved that the party knows English as well as the other language, is to have an interpreter with proper witnesses. It must be recollected that a party may fully understand the import of a language when spoken to, and yet not be able to express himself accurately in that language; and in a matter so serious as a criminal charge, and where the use of an idiomatic expression, or the substitution of one word for another, might change the whole meaning, no magistrate will rashly compel a man to speak in a strange or unaccustomed tongue. A person deaf and dumb may be examined either through a sworn interpreter skilled in the signs used by such persons, or by written questions and answers, as in the case 28th April 1841, Smith, 2 Swinton 547. The declaration must be read over to the accused slowly and distinctly, and any additions made that are required. If any alterations or additions are made, they ought not to be made on the body or margin of the declaration, unless to rectify mistakes of the clerk, but added with an introduction that they are made on the declaration being read over to the accused. The examination is not in public court, and neither agent nor friend of the accused is entitled to be present. It is not necessary that the docquet mention that the accused was in his sound and sober senses, if this be proved at the trial.—8th Oct. 1858, Hay, 3 Irv. 181. A first declaration must be read over before a second is taken. Where the first was on the same sheet as the second, and said to have been read over to the accused, it was sustained, though not signed.-8th June 1857, Manning. See 17th Sept. 1862, Jessie M'Lachlan, 4 Irv. 221.

At the trial the declarations may be put in as evidence if libelled on, and it must be set forth that they were subscribed.-21st Dec. 1846, Gordon, Arkley 196; 12th April 1827, Forbes, Syme 46. The accused cannot call for the declaration.-27th Dec. 1842, Kennedy, 1 Broun 497. But if proved, the accused may then insist on its being read, just as if a witness be sworn he cannot be withdrawn at the desire of the party calling him. The declaration, unless admitted (as is generally done, except in cases where a capital punishment is sought), must be proved by two of the witnesses present. The magistrate should be one of the witnesses.-11th May 1846, M'Gavin, Arkley 67; 30th Nov. 1846, Vallance, Arkley 181. But his testimony is not indispensable where the witnesses are unobjectionable, as not connected with the fiscal's office.-8th April 1850, Howden, Shaw 351. Declarations alone are not sufficient to convict, though they may be held as equal to one witness. Declarations may be referred to, without being proved, in passing sentence on a plea of guilty, which implies an admission of the declarations libelled. The following is the usual form of the preamble and docquet of a declaration :—

At Perth, the
and

day of

years.

eighteen hundred

In presence of CHARLES GRAHAM SIDEY, Esquire, one of Her Majesty's justices of the peace for the county of Perth ;

Compeared a prisoner, and the charge against him having been read over and explained to him, and he having been judicially admonished and examined there

anent, declares, My name is A. B. I am a heckler, residing at the Scouring Burn of Dundee, aged nineteen years, and unmarried. On the, etc. etc. etc.

A. B.

CHARLES GRAHAM SIDEY, J.P.

The foregoing declaration, written (on so many pages as the case may be) by X. Y., clerk in the sheriff-clerk's office in Perth, was freely and voluntarily emitted by the declarant, who was in his sound and sober senses, and was read over and adhered to by him and subscribed by him and the said justice (if the accused cannot write, say, and subscribed by the said justice in his presence, as he declares he cannot write'), before these witnesses-J. M'L., writer, Perth; G. S., sheriff criminal-officer, residing in Perth; and the said X. Y.

(This document is subscribed by the witnesses, but merely to aid their memories.)

It is not necessary that the witnesses add 'witness' to their subscriptions.-8th June 1857, Manning. A mistake in the docquet of the number of pages was held not sufficient to exclude the declaration.-20th Sept. 1841, Fulton, 2 Swinton 564. A declaration of a deceased witness emitted in precognition before procurator-fiscal and signed by witness not allowed as evidence, and held incompetent to prove by procurator-fiscal what witness had said on precognition.-13th Sept. 1866, Lynch, 5 Irv. 300. But where a person injured died suddenly and unexpectedly, held competent to examine assistant procurator-fiscal and his clerk from memory as to what witness said when precognosced.-1st Feb. 1869, Ward, Cooper 186. See also case of Stephens, 20th April 1839, 2 Swinton 348.

The following are the rules observed in England:-A prisoner, when taken before a magistrate, is to be allowed to speak voluntarily, and give his account freely; and he ought not to be pressed to answer, nor examined or questioned by the magistrate like a common witness. Where so examined his account was rejected, though nothing like a threat or promise had been used.-R. v. Wilson, Holt's N. P. C. 597. But where a prisoner is willing to make a statement, it is the duty of the magistrates to receive it. But before they do so, they ought entirely to remove any impression from the prisoner's mind, that the statement may be used for his own benefit; and the prisoner ought also to be told that what he thinks fit to say will be taken down, and may be used against him on his trial. He must not be put on oath; and where the examination purports that he was sworn, it is not competent to prove that he was not.-R. v. Bentley, 6 C. and P. 177. The declarations do not require to be subscribed; but if they contain confessions, this is recommended. It was at one time held that either the magistrate or his clerk was necessary to prove the declaration, but it is now allowed to be proved by others, though in serious cases the former practice is recommended. Where the declaration stated that the accused refused to say anything, proof of confessions made in magistrate's presence was refused. A confession is sufficient ground of conviction, if direct and unequivocally positive.-R. v. Tippet, R. and R. 509. Where a person had said to the party charged with bestiality, If you don't tell me, I will give you in charge to the police till you do tell me,' it was held by the whole judges that the confession was made under a threat, and could not be received.-26th Nov. 1853, Regina v. Lockhart, W. R. 97. But where a girl in custody on a charge of arson was dressing to go with the officer, she was spoken to by another woman thus: 'I am very sorry for you, you ought to have known better; tell me the truth whether you did it or not.' The girl answered, I am innocent.' The woman replied, 'Don't run your soul into more sin, but tell the truth;' whereon the girl made a full confession;-it was received in evidence.-26th Nov. 1853, Regina v. Sleeman, W. R. 97.

5. Warrant to commit for further Examination.-On a separate petition or on the original, on the minute or motion of the prosecutor, a warrant is written to

commit the accused party to a named prison, therein to be detained for further examination. All the requisites of the original warrant ought to be observed in this. The accused is not entitled to a copy of this warrant, as he is to that of final committal. He is not entitled to have access to, or communication with, agent or friends, without consent of the prosecutor, or an order from the magistrate. This is to avoid the risk of interference with the course of justice in leading the precognition. He is not entitled to bail, nor even on consent is it regular to take a formal bailbond without formal committal, as it might prevent his forcing on his trial under the Act 1701, c. 6. Liberation, in less important cases, is managed by a letter of presentation to the prosecutor, without the interference of the magistrate. In case of a second declaration, the same formalities are necessary as in the first, with the addition, that the former declaration must be read over (if the examination be for the same offence, not otherwise), and so set forth in the second. Should the same witnesses not be present (which ought, if possible, to be secured), the first must be docqueted as relative to the second. It has, however, been doubted if the proof of the second establishes the first, seeing that the party cannot be held as evidence of the soundness of his own mind when first examined.-11th May 1846, M'Gavin, Arkley 67. The procurator-fiscal and the superintendent of police were called to prove two declarations emitted by the panel. They were not present when the first declaration was emitted; but deponed that it had been read over to the panel before she emitted the second one, and that she then stated that her previous declaration had been freely and voluntarily emitted by her in her sound and sober senses.' The Lord Justice-Clerk: 'I do not like this way of proving declarations by such witnesses alone, and without the magistrate who took them. The first declaration is only proved through the second; but there is no proof that the panel was in her sound and sober senses at the time of the first. I think it most insufficient to prove by the woman's own declaration, at the second examination, that she was in her sound and sober senses at the first examination. She cannot tell how that was.'Oct. 1857, 2 Irv. 720; 11th Jan. 1858, Hossack, 3 Irv. 1. The period during which the accused may be kept in prison under warrant for further examination is not defined by law; but it ought in no case to exceed eight days, and as much within that term as is possible, consistent with the extent and nature of the precognition. A party may be, and generally is, committed without being brought up for a second examination, though first committed with that view; but where he gives notice of his desire to be afforded such opportunity, it ought always to be given. He ought not to be exposed to more than two examinations on the same charge.See 1843, Kelly, 1 Broun 543. One examination is generally found sufficient; and a third would require some circumstances to justify it, and ought never to be exceeded, as then assuming something of the aspect of the ancient question or system of torture. The magistrate is not bound to grant warrant to commit for further examination. He may at once be satisfied that there are no grounds for the charge, and refuse to commit, but which, of course, does not prevent the prosecutor proceeding with his precognition and prosecution. On the precognition being completed, the magistrate may then commit for trial (' until liberated in the due course of law'), though the party was not previously committed for further examination. On the other hand, the magistrate may, where the accused admits the offence, and where, as is sometimes the case, the precognition has been already taken, at once commit, until liberated in the due course of law,' and so entitle the accused party immediately to the privilege of bail, and to force on his trial. A declaration may be taken after commitment for trial, though the practice is not to be commended; but it cannot be taken after citation for trial.

In England, it has been laid down (Justice Park), that a magistrate may commit for further examination, but the further and absolute commitment must be in a reasonable time. What is a reasonable time, is a mixed question of law and fact, which those who are to exercise a judgment upon it must decide at the time. A magistrate ought as speedily as possible to make all inquiry.' Sixteen days was, in one case, held an unreasonable time. But 'in the practice of the best regulated police offices, there are many instances of prisoners being detained more than twenty days between their first being brought before a justice and their commitment for trial, and being brought up for examination several different days during the inter

val.'-Burn's Justice (Chitty's edition), vol. ii. p. 472. A commitment for further examination is not a proceeding against the party, but a proceeding for his benefit. It is a proceeding with a view to protect him against a commitment for trial, if during a reasonable time for examination it can be found there is no ground upon which there ought to be a commitment for custody in order to trial. If you were to say that where a party is committed for further examination, bail shall be required before that further examination takes place, you put him to this inconvenience, that he must give security to stand a trial which he may never have to stand.'-Per Lord Eldon, 3 Dow's Reports 183.

6. The precognition is taken generally by the fiscal. The witnesses are separately examined, but not on oath, unless where unwilling, or it is thought necessary for obtaining a disclosure of the truth, not likely otherwise to be obtained, and the intervention of a magistrate is then necessary. A witness cannot be compelled, in a precognition, to speak on oath to his own turpitude, though promised immunity from prosecution for the crime. But if he gives evidence on oath of his own free will, he is liable to the pains of perjury if he swears falsely. In all such depositions on oath, the magistrate must be present and see the deposition taken down, in the same way as of a witness on a trial, and authenticate the writing in a similar mode. The witnesses are compelled to attend; and first and second diligences are in use to be given in the original or following warrants. But the second being a diligence to apprehend, might more appropriately be reserved until return be made of the first, than entrust the liberty of the subject to subordinate officers of the law. If a witness refuses to be sworn where there exists no ground for declinature, he may be committed for contumacy or contempt, either generally until he consents to give evidence on oath, or for a certain term as punishment, where his evidence may be dispensed with. A witness examined on oath in precognition cannot be afterwards charged as a party for the offence on which he was so examined, and therefore great delicacy ought to be exercised with parties under suspicion. Where examined in a precognition not on oath, he may afterwards be examined as a party, on his first declaration being cancelled, and then receiving the usual caution given to an accused party. Even this mode of proceeding should be avoided as much as possible. The precognition in Scotland is ex parte, and is somewhat similar to the Bill and Presentment of the grand juries in England. The accused has no right to be present, neither his agent nor friends; nor can he insist on witnesses being examined, or to have a copy or perusal of the precognition. It is, however, the duty of the fiscal to investigate the truth of statements made in the declaration, and examine persons therein named, but which as frequently tends to discovery of the guilt as the vindication of the innocence of the party. The statements in the precognition, whether on oath or otherwise, can never be used against the witnesses (unless on the ground of perjury in the former case), and their declarations are held as being destroyed before the trial, and cannot be then shown or read. Precognitions are seldom formally taken, unless in grave cases, such as are reported to crown counsel for trial by jury in the Justiciary or Sheriff Courts. In summary trials before inferior courts, short notes of evidence are taken by the fiscal or local constable, especially where there is the advantage of a well-organized police force. In cases of summary trial, and where there is a deficiency of evidence, a declaration may be found important as an article of proof, and may be taken without commitment of any kind, or precognition following thereon.

In 1765, a set of rules was prepared by the crown agent and depute clerk of Justiciary, and was revised by Lord Hailes. They will be found in the Appendix of Baron Hume's Commentaries on the Criminal Law of Scotland, and contain various useful suggestions. Many of them were so well established in practice, as not to stand in need of being specified, while others were found defective. To remedy these defects, a series of valuable directions was drawn up and circulated in 1824 by Sir William Rae, then Lord Advocate, and John Hope, Esquire, then Solicitor-General. These were reprinted and distributed by crown counsel, with additions and alterations and schedules on 31st January 1834. They were authenticated by the names of Francis Jeffrey, Lord Advocate, and Henry Cockburn, Solicitor-General. These rules have now been superseded and greatly expanded by a new code of regulations, dated 1st July 1868, bearing the signa

ture of T. G. Murray, Crown Agent, but these rules are chiefly designed for the conduct of procurator-fiscals, and therefore are not here inserted.

7. Warrant to commit.-This warrant is regulated by the statute 1701, c. 6 (which has been called the Habeas Corpus Act for Scotland). It is required that the warrant, 1st, shall be in writing; 2d, shall proceed on a signed information; and 3d, shall specify the charge against the accused person. Many of the observations as to previous warrants apply to this. Before, or immediately after commitment, the accused party must be served with a just double of the warrant under the hand of the officer, or of the keeper of the prison. In practice, copies of the relative petition and warrant are both given the accused. This warrant must be separate, distinct, and not in combination with one to detain for further examination.-1st May 1815, Arbuckle; Dow's Reports of Cases in House of Lords, vol. iii. p. 175.

8. The Prosecution may be at the instance of the private party injured, with concourse of the Lord Advocate in the supreme, and of the fiscal in the inferior courts, but which concourse is in practice seldom refused; or the instance may be, and fortunately is more generally, in the sole name of the public prosecutor, and the expense borne by the public purse. In this respect Scotland is more happily situated than England, where private prosecutions are the rule, and where the injured party is bound over to prosecute, and in default of caution, has been sometimes committed to the same prison as the offender. In the Justiciary Court the form of action is either by indictment or criminal letters; the former is the peculiar privilege of the Lord Advocate, and is generally used where the party is in prison, whilst the latter are more applicable to a party at large. Petition and complaint is the form in the Court of Session and inferior courts, unless special forms be given in particular statutes. The form of service is regulated by 9 Geo. IV. c. 29, and 11 and 12 Vict. c. 79. The accused, in the higher class of cases, must have a copy of the indictment, list of witnesses, and of forty-five jurors, served on him fifteen clear days before the diet of appearance, but where there are two diets, as in the High Court and in Sheriff and Jury cases, the indictment must be served five clear days before the first diet, and fifteen before the second. In all cases, summary and ordinary, there ought to be a competent time to prepare for trial, less or more, according to the exigence of the matter.'-1714, Fullerton. In all criminal causes the diet is peremptory, and must be called on the precise day, or it falls; but, after being called, it may be adjourned to a future diet named. The prosecutor and the accused party must be personally present at all diets; and they cannot appear by agents in cases strictly criminal, but may do so in mere penal actions for statutory offences punishable by fine, unless the special statute provides to the contrary. In the case, 22d June 1812, Macalister against the Fiscal of Lanarkshire, where the sentence was fine and one month's imprisonment, it was found that in criminal process no judgment of conviction or punishment can be regularly pronounced except in presence of the panel, and that any practice averse to the rule ought to be corrected.'- F. C., No. 2 Ap. See other decisions to the same effect. 2 Hume 68. It has been held that even a judgment of acquittal could not be given in the absence of the accused party. But on a medical certificate, and of consent of the prosecutor, absolvitor was pronounced in absence of the party, in the case of Alexander (assuming the title of Earl of Stirling).—April 1839, Bell's Sup. to Hume 300. If the diet is not called, there appears no power in the accused to force on the trial by protestation, as in civil actions. Where the accused is absent, he is outlawed or fugitated in the Justiciary Court; and there, as well as in the inferior courts, the bail-bond is forfeited, and the accused may be again apprehended on the fugitation, or on a new warrant. Fugitation was pronounced notwithstanding a medical certificate of inability to attend, the cause assigned not being satisfactory. -22d April 1857, Alcock, Perth Circuit, 2 Irv. 615, 29 Jur. 344. Citation at the conventional domicile named in the bail-bond, held sufficient.-28th Sept. 1864, Crockat, 37 Jur. 23, and 4 Irv. 556. On the calling of the cause the prosecutor may abandon the action, either simpliciter, whereby he gives up the charge altogether, or he may move the court to desert the diet pro loco et tempore, by which that particular suit falls; but the charge still subsists and may be prosecuted anew. This last desertion it is in the power of the court to refuse, but this power is seldom or never exercised. Held that the bail-bond may be forfeited, though

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