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Lord Advocate

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ADVOCATE, LORD, is the name given to the principal public prosecutor in Scotland. He is assisted by a Solicitor General and some junior counsel, gene rally four in number, who are termed Advocates depute. He is understood to have the power of appearing as prose cutor in any court in Scotland, where any person can be tried for an offence, or to appear in any action where the Crown is interested ; but it is not usual for him to act in the inferior courts which have their respective public prosecutors. called pro curators fiscal, acting under his instruc tions. The procurator fiscal generally makes the preliminary inquiries as to crimes committed in his district; and transmitting the papers to the Lord Ad vocate, that officer, or one of his assist ants, either directs the case to be prose cuted at his own instance before the au, perior court, or leaves it to the conduct of the procurator fiscal in the inferior court. The origin of this office is not distinctly known. The prosecution of all offences at the instance of the crown, ap pears to have gradually arisen out of two separate sources : the nne, the prosecution of state offences ; the other, an inquiry, for behoof of the crown, into the extent of the feudal forfeitures arising from offences. A public prosecutor is alluded to in sta tute law so early as the year 1436;. and by the Act 1587, c. 77, it is enacted " That the thesaurer and advocate persev slaughters and utheris crimes, althoucht the parties be silent, or wald utherwayes privily agree." It is now so thoroughly fixed a principle that the Lord Advocate is the prosecutor for the public interest of all offenders, that when a private party prosecutes, it is the practice that he shall obtain the concurrence of the Lord Advocate. It has been maintained that this concurrence is not necessary, and, on the other hand, that when required, the Lord Advocate can be compelled to give it: but these questions have not been au thoritatively settled, as in practice the consent is never refused. The Lord Ad vocate sat in the Scottish Parliament in virtue of his office, as one of the officers of state. He is usually in the commission of the peace : and it is perhaps owing to the circumstance of his thus being a magis trate,, that it is said he can issue warrants for the apprehension of accused persons. This is usually called one of the func tions of his office, but its existence may be questioned ; and the Lord Advocate, like any other party to a cause, never acts as a magistrate in his own person, but obtains such warrants as he may require from the Court of Justiciary. He and

his assistants are always members of the ministerial party, and, much to the detri ment of the public police business of the country, it is their practice all to resign when there is a change of ministers. When the Duke of Newcastle was in power, the practice of appointing a Secre tary of State for Scotland being discon tinued, that minister intrusted a great portion of the political business of the eountry to the Lord Advocate ; and that practice having been continued, the Lord Advocate is virtually secretary of state for Scotland. His duties in this capacity are multifarious, and the extent of his power is not very clearly defined. It is a very general opinion that the adminis tration of criminal justice is injured by this concentration of heterogeneous offices insure man, and that it would be an im provement to throw part of kis duties on an under-secretary of state. In 1804, when an inquiry into the conduct of Mr. Hope, as Lord Advocate, was moved for and lost in the House of Commons, that gentleman said, "Cases do occur when nothing but responsibility can en able a Lord Advocate of Scotland firmly and honestly to perform his duty to the public. In the American war, a noble lord, who then filled the situation [Lord Melville], acted on one occasion on this principle, in a way that did him the highest honour. The instance to which I allude was the case of several vessels about to sail from Greenock and Port Patrick to New York and Boston. If these vessels had been permitted to sail, the consequence would have been that a number of British subjects would have been totally lost to this country. What then did the noble lord do ? . .

. . He incurred a grand re sibility : immediately sent orders to the custom-house officers of the pouts from which the vessels were to sail, and had them all embargoed?' And several si milar instances of the exercise of unde fined power were adduced on that occa sion. By an old act, the person who gives false information of a crime to the Lord Advocate is responsible to the in jured party, but the Lord Advocate him self is not responsible ; and it is held that he is not bound to name his informant. He does not, in prosecuting for offences, require the intervention of a grand jury, except in prosecutions for high treason, which are conducted according to the English method.