Some of the advantages of this salutary restriction of the right to prosecute may be indicated. It prevents malicious and vindictive prosecutions. It ensures that prosecutions will be conducted with fairness to the accused, and that they will not be hollow-that is, that they will be fairly conducted in the interests of the community. It is obvious that where the prosecutions in a county are carried on by the same permanent staff, they will be conducted with greater economy and uniformity, and can scarcely fail to be better prepared and better managed. And it can hardly be doubted that they are more likely to command the confidence of the community where they are conducted by a neutral public prosecutor than by or for an interested private party. So weighty, indeed, have such considerations appeared, that in 1879 the Legislature sanctioned the appointment of a Director of Public Prosecutions for England.

This

was a step in the right direction. But does it go far enough? This official only takes up such cases as he chooses; his appointment is not ad vitam aut culpam; his only staff seems to be his halfdozen assistants; the right of any private person to institute, undertake, or carry on any criminal proceeding, is expressly saved; and the exercise of his superintendence or adoption of a prosecution seems left too much a matter of taste and too little a matter of duty.

Now in Scotland every county has its Procurator-Fiscal, and some counties have more than one. Thus in Lanarkshire each of the four districts has its Fiscal of the Sheriff Court, and its Fiscal of the Justice of Peace Court; and a good many of the burghs in it have each its own Fiscal. It may be doubted whether this multiplication of

officials, all independent of one another, is altogether wise, and whether it would not be better that they should have a common local head, intermediate between them and the Lord Advocate. But this matter need not be discussed here. The important point is, that every county and every burgh in Scotland-that is to say, every inch of its soil-is subject to the supervision of a prosecutor appointed in the public interest, and subordinate to the chief law officer of the Crown. Nearly all these officials are, however, allowed to carry on business as conveyancers, factors, bankers, solicitors, &c. The propriety of this is doubtful. On the one hand, it is said that by allowing them to carry on private business the Crown is able to obtain the services of men of a position and capacity which it could not command if their only business income was their salary. But this is no answer on principle, and is, we fear, only an instance of the unjust penuriousness with which, as a rule, Scotch officials are remunerated. The serious consideration, on the other side, is that the local prosecutor may have to consider the necessity of prosecuting persons who are his clients. clients. Here, therefore, his public duty and his private interest may clash; and however honest and independent he may be, there is a possibility that he may be unconsciously biassed in the matter. Now it is eminently desirable in the public interest that the prosecutor should not only not be exposed to such risks, but that even room should not be left for the least intelligent class of the community to entertain a distrust, however groundless, of his independence. In restricting, therefore, its Director of Public Prosecutions and his assistants to their

official business, it seems to us that England has acted wisely.

The second material point in which Scotch and English criminal procedure differ is that in Scotland, as has been shown, the investigations preliminary to the public trial are carried on in private. To an innocent man this is an inestimable advantage. Sometimes no one, save the more immediate friends of an accused person who has been liberated on its appearing that the charge made against him is groundless, has any knowledge of his apprehension. Nay, it occasionally happens that where the accused is well known to be a law-abiding person, and the charges made against him are doubted, the investigation takes place without his knowledge; and the matter is sifted and submitted for the opinion of the proper authorities without the public or him having any idea that he has been even an object of suspicion. There is also, as it seems to us, an unfairness to the accused where the public mind is saturated with the evidence against him, and the jury enter the box with a hearsay knowledge of allegations which are not, and it may be cannot be, proved in Court, but which yet unconsciously may influence their minds to a serious extent. And even where the preliminary public investigation has yielded an insufficient case, the unfortunate accused has to bear the pain of being temporarily the object of an odious publicity and permanently the object of suspicion to many in whose minds the cons but not the pros readily affiliate themselves. There is also the evil to the public morality on those occasions where the nauseous details of an investigation are daily presented in a manner which cannot escape the notice even of the

an example of this the Bravo case. On the other hand, where the accused is not the really guilty party, or where no one has been apprehended, the public examination of the witnesses, though it may in some instances lead to the obtaining of further and useful evidence, has probably in general the effect of indicating to the guilty party when to make off, what is his safest course, and what precautions it is advisable for him to take. If the witnesses be examined in private and separately, there is less risk of their statements being influenced by what others may have said, and less risk of persons being suborned to invalidate their testimony. It is better, too, for the witnesses themselves. There is less opportunity of their being tampered with, and there is less chance of their being intimidated or persecuted. It is a cheaper mode where the investigation is conducted in private by an assistant of the public prosecutor than where it takes place in a public court with the staff of officials which such a course entails. It may be said that if the prisoner or his agent were present he might suggest points which would clear up the matter. It is doubtful if such is a frequent experience. The Fiscal or his assistant has the prisoner's declaration before him, and he is accustomed to sift evidence; and in any event it is to be remembered that the test of the prudence of a system is its general and not its occasional results. Nor is it to be forgotten that though as matter of practice the preliminary investigation in Scotland takes place in private, the criminal authorities can easily allow such particulars as they wish to reach the public, through the press, if they hope that there

prisoner have been pointed out. Under the Scotch system these cannot occur. So far as our experience goes, the only two possible evils on the other side arefirstly, that the minority of seven may represent the bulk of the intelligence in the jury; and secondly, that a mind of dominating strength may convert a minority of four or five into a majority of eight. The latter evil is, so far as we know, a matter of rare occurrence; and the former evil hardly ever happens, except where the intelligent minority are for a conviction to which the majority will not assent. In these days of intimidation and revenge, a consideration that ought not to be lost sight of is, that where a conviction is obtained by the verdict of the majority of a jury there is a protection analogous to that which the ballot affords in political elections. The prisoner and his friends cannot learn with certainty, and never without the complicity of some juryman, who the jurors were that composed the majority. And if the jury have any fear of such information being divulged, they have it in their power to conceal their individual opinions from all but their foreman.

It is probable that English jurisprudence would be slow to let the verdict of "not proven " be ingrafted on it, unless it were thought that there was occasionally a logi

cal good sense and propriety in the repetition of the famous verdict"We find the prisoner not guilty, but recommend him not to do it again." A jury do not sit to say what in the abstract is their opinion of the prisoner's character, but whether the evidence adduced in the cause suffices to prove his guilt. Strictly speaking, "proven" and "not proven are the only two logical verdicts; but it is pretty well understood that the words "guilty" and "not guilty" are meant as their equivalents. In that view to find room also for a verdict of "not proven" is to say that the jury think the prisoner's guilt is not proved but that it may be suspected. Now they sit to say whether or not he is proved to be the guilty person, and not to say whether he deserves to be suspected. Sometimes a verdict of "not proven" inflicts a lifelong stigma on a person who, if tried before a judge alone, or even by a jury possessed of more intelligence or less swayed by popular clamour, would have been rightfully found "not guilty." Such cases doubtless occur. But we apprehend the occasions where a verdict of "not proven" more often causes a miscarriage of justice are those instances where an indulgent jury, or one that is willing to wound but yet afraid to strike, resorts to this verdict as an evasion of responsibility.