li A W. 
300 
fpecial, fetting forth tlie particular facts inferring the 
guilt, and the particular place at which thei'e faffs were 
committed. The time of committing the offence may be 
libelled in more general terms, with an alternative as to 
the month or day of the month ; but the defender will be 
allowed to prove that, on certain days of the time libel¬ 
led, lie was alibi ; and on fuch proof the libel cannot 
Itrike againft him as to thei'e days. In this particular, 
the law of the two countries does not materially differ ; 
for the authorities on this point are with us contradiflory, 
lfime requiring the exaft day to be fpecified, and others 
declaring that the precife day is unneceffary ; for the pri- 
foner, according to fir Edward Coke, (2 In ft. 318.) may 
be found guilty if the offence was committed on a day 
either prior or fubfequent to that charged in the indift- 
jnent. In the cafe of fir Henry Vane, as reported by 
chief-jultice Kelyng, the treafon was laid in the indiCt- 
jaent to be on the 30th of May, 11 Car. II. and the jury 
found him guilty of the treafon laid in the indictment 
on the 30th of January, t Car. II. the day of the former 
king’s execution. It was then refolved by the court, that 
the day laid in the indictment was immaterial; and all fir 
H. Vane’s forfeitures relate to that time, to avoid all con¬ 
veyances and fettlements made by him. 
The neceflity of fpecial libels prevailed formerly in Scot¬ 
land, not only in the trials of principal criminals, but 
alio of accefffiries; but, as it proved impracticable, in 
jnoft cafes, to libel on the precife circumftances of accef- 
fion that might appear in evidence, libels againft acceflo- 
ries were declared fufncient, if they mentioned in general 
that the perfons profecuted were guilty art and part. The 
two things to be chiefly regarded in a criminal libel are, 
the relevancy of the faCls, (i. e. their fufficiency to infer 
the conclufion,) and their truth. The confideration of the 
firft belongs to the judges of the court ; that of the other, 
to the jury, or aflife. In trials before the judiciary, after 
counfel had been heard on both tides as to the relevancy, 
informations hire indev/ere, by the flat. 1695, cap. 4. direct¬ 
ed to be offered to the court; but, by virtue of the rtat. 20 
Geo. II. the judges, after the pleading, and minutes 
thereof made up by the clerk, may forthwith pronounce 
their interlocutor; referving power to themfelves, in cafes 
of difficulty, to direct informations either on the rele¬ 
vancy of the libel, the import of a fpecial verdiCt, the 
degree of punithment, or on any other matter that may 
be alleged for the pannel, before judgment. In deciding 
on the relevancy of a libel, the court will alfo take into 
their confideration whether the libel be drawn in a formal 
and logical way, as well as the queltion of the fufficiency 
of the faCls to infer the conclufion. If the faCls libelled 
be found irrelevant, the pannel is difmifled from the bar; 
if relevant, the court remits him to the knowledge of an 
affife. 
The word aflife (from afis , fettled or eftabliffied,) has 
different fignifications : it is fometimes taken for the fit¬ 
tings of a court; fometimes for its regulations or ordi¬ 
nances, efpecially thofe that fix the ftandard of weights 
and meafures 5 and it fometimes lignifies a jury, either 
becaufe juries confifted of a fixed and determinate num¬ 
ber, or becaufe they continued fitting till they pronounced 
their verdiCt. A jury confifts of ffteen, (not twelve , as 
with us) fworn men (juratoresj chofen by the court from 
a greater number, not exceeding forty-five, who have 
been fummoned for that purpofe by the Iheriff, and who 
have been given in a lift to the defender when he was 
ferved with a copy of his libel. 
From this ftatement, it will appear that our practice in 
England differs more in point of form than in fubftance 
from that ufed in Scotland; our demurrers to indictments 
before the trial, (which are incident to criminal as well 
as civil cafes, though now but feldom brought into prac¬ 
tice,) and our motions in arrelt of judgment when the 
verdict has efiablithed the fad, are fimilar in principle and 
effeCt to the confideration by the jufticiary of the relevan¬ 
cy of a libel. 
The defender in a criminal trial may raife letters of 
exculpation for citing witnefies in proof of his defences 
againit the libel, or of his objections againll any of the 
jury or witnefies; and, as the right of the defender to 
prove his defences ought to be as ample and extenfive as 
that of the purfuer to prove his libel, letters of exculpa¬ 
tion ought not to be refufed on any relevant defence, 
though fuch defence fhould be inconfiftent with the li¬ 
bel ; otherwife, libels might be fo laid as to deprive the 
defender of every article of exculpation. The defender 
has the fame aid of the court, to compel the appearance 
of his witnefies, as the profecutor pofiefles; and he has 
the farthef advantage, in every inftance, of counfel to ad- 
drefs the jury, and to conduct his defence. From all 
thei'e circumftances, it is evident that the practice in Scot¬ 
land is, in many particulars, more favourable to the in- 
terelts of a priloner than with ns. No perlon could, in 
former times, by the law of Scotland, be convicted of the 
fmalieft offence, till lie was found guilty by a jury of his 
countrymen ; and this (till continues to be the practice in 
all profecutions of a higher nature, whether before the 
fupreme or inferior criminal courts; and no trial, even 
for the fiighteft tranfgrefiion, if purified before the court 
of jufticiary, can be carried on without the intervention 
of a jury. In the trial of thofe crimes to which the court 
of feflion is competent, the fifteen judges are coniidered, 
as in civil cafes, in the character both of court and of 
jury. After all the witnefies have been examined in 
court, the affifers are flint up in a room by themfelves ; 
where they muff continue, excluded from all communi¬ 
cation with others, till their verdiCt or judgment be iub- 
feribed by the foreman (or chancellor) and clerk; and 
according to this verdiCt the court pronounces fentence, 
either abfolvingor condemning. 
Though the proper bufinefsof a jury be to inquire into 
the truth of the faCts found relevant by the court, for 
which reafon they are fometimes called the inquef ; yet, 
in many cafes, they judge alio in matters of law or rele¬ 
vancy. Thus, though an objection againft a witnefs 
fhould be repelled by the court, the affiles are under no 
neceffity of giving more credit to his teltimony than they 
think juft ; and in all trials of art and part, where fpecial 
faCts are not libelled, the jury, if they return a general 
verdiCt, are indeed judges not only of the truth, but of 
the relevancy of the faCts that are fworn by the witnefies. 
Thus alfo in an indictment for murder, where the court 
have previouily determined the relevancy of the libel to 
infer the pains of death, the jury may deliver in a gene¬ 
ral verdiCt of not guilty, even though the faCts be proved, 
if they are of opinion that thofe faCts amount to no higher 
an offence than that of manflaughter ; thus making them¬ 
felves not only judges of the truth of the faCts, which is 
their peculiar province, but alfo judges of the fufficiency 
of thofe faCts to infer the conclufions ; or, in other words, 
judges of the law of the cafe. In England, the affiftance 
of an act of parliament has been found neceflary to give 
juries this power in the cafe of trials for libels. A gene¬ 
ral verdiCt is, as with us, that which finds in general 
terms that the pannel is guilty or not guilty, or that the 
libels or defences are proved or not proved ; in a fpecial 
verdiCt, the jury find certain faCts proved, the import of 
which is to be afterwards conlidered by the court. 
In Scotland, the power of profecution is lodged with a 
public officer called the lord-advocate, but not ffi exclu- 
fively as to deprive the injured party of the right of pro- 
fecuting; aright which he often exercifes with advantage 
to himlelf, as the punifhmeut of the offender is not un- 
frequently a pecuniary compenfation to himfelf. In En¬ 
gland, the king is the profecutor; and the injury to the 
individual is quite overlooked in the confideration of the 
greater injury lultained by the public; and, if the punifh- 
ment inflifted be in the nature of a fine, no part goes to 
the perfon injured, but the whole is referved for the 
crown. 
To difeourage groundlefs criminal trials, all profecu- 
i tors. 
