Page:The Green Bag (1889–1914), Volume 04.pdf/262

Rh certainly have been acquitted. The system of private prosecution which prevails in Eng land, and under which a prisoner is left (except in grave cases, and by the intervention of the judge) to secure his own counsel or to defend himself, is another illustration of the matter on hand. Scotch criminal procedure, on the other hand, is pre-eminently inquisitorial in character. Broadly and gen erally speaking, no such thing as private prosecution exists. At the head of the Scotch judicial system is the Lord Advo cate, the supreme public prosecutor of Scot land. Below him in dignity, but exercising functions of the same kind, comes the Soli citor-General. In conducting the criminal business of the country, the law officers are assisted by advocates-depute, who prosecute in their absence, and by the crown solicitors, or "agents" as they are called, who prepare cases for trial. But this is not all. Every county or "shire" in Scotland has its "pro curator-fiscal," who unites in his own person the functions both of coroner and of county prosecutor. This official investigates every case of sudden and suspicious death; prose cutes before the sheriff's court in a very large number of cases; determines whether or not prosecutions shall be undertaken, taking the advice of the advocates-depute if necessary; and prepares cases for trial at the circuit courts. Prisoners in Scotland are practically never left undefended. The public prosecutor is accustomed and required to conduct the case for the Crown with almost judicial moderation, and the prisoner's coun sel has the inestimable advantage of the last word. Now, Moncrieff's speech in the case of Madeline Smith is, on the whole, the finest illustration that can be given of the tone ex pected from a Lord Advocate of Scotland conducting an important Crown prosecu tion; and the student of criminal juris prudence who wishes to understand the distinction on which we have been insist ing, cannot do better than compare it with Cockburn's speeches against Palmer. Lord Moncrieff commenced by sweeping

239

away the charge (which had been made against the Crown) of having dealt with the documentary evidence in the case in a loose and unsatisfactory manner. He showed that this was due to the fact that the prisoner had hastened the trial by avail ing herself of the remedy known in Scots law as " running letters," the effect of which was that unless the public prose cutor brought the case to trial within a cer tain time, she would be entitled to go free. He further contended that the facilities given by the Crown to the counsel for the accused in the preparation of the defence had been altogether exceptional, — a manuscript copy of all the documents on which the prosecu tion intended to rely having been put into their hands even before the indictment was served. And he pointed out that if Miss Smith's advisers felt that the rapidity with which the case had been prepared would or could be prejudicial to her interests, they might easily have secured a postponement of the trial. His lordship then proceeded to deal with the evidence, and laid before the jury a masterly synthesis of the facts. Ex cluding one by one the hypotheses that L'Angelier's death had been caused by ac cident, suicide, or disease, he dwelt on the prisoner's motive to get rid of L'Angelier, on her possession of the means whereby his death was undoubtedly caused, and on the curious coincidence between her several purchases of arsenic and L'Angelier's vis its. His peroration was the only objection able portion in his address. " Having gone through this case," he said, "with an amount of pain and anxiety which I cannot describe, I leave it entirely in your hands. I am quite sure that the verdict you give will be con sistent with your oath and with your own opinion of it. I have but a public duty to perform, and I have endeavored to show you, as powerfully as I could, all the cir cumstances which I found to bear upon the case; nor should I have done so but from a solemn sense of duty, and my own belief in the justice of the case. If I had thought that