12 July 1934
|H. M. Advocate|
If this question can be regarded as an open one, for myself I have little difficulty in reaching the conclusion that there is no prescription of crime by the law of Scotland. I would agree in that matter with the view of Lord Justice-Clerk Macdonald in his Criminal Law (4th ed., at p. 312), that "there is no rule of law establishing a prescription of crime." But the real difficulty arises upon the case of H. M. Advocate v. Macgregor . In that case, in the year 1773, a full bench of the High Court of Justiciary, consisting of five Lords Commissioners, was invited by the Crown, on a plea stated by the panel in limine, to decide this very question. Whether the Court did so is, I confess, left in some obscurity. It is accordingly necessary to examine the case carefully in order to see what it did decide, and, if it did lay down a rule, what the rule was, and whether it was absolute or subject to limitation.
The panel Malcolm or Callum Macgregor, alias John Grant, was charged on indictment that, on the evening of Christmas Day, 1747, he did attack and barbarously murder one John Stewart, tenant in Abergairn in the Parish of Glengairn and Shire of Aberdeen, and the libel proceeds that the panel did immediately abscond and flee from that part of the country, and was never again seen there, except to some few persons by stealth and in the night time, and further that a justiciary warrant was thereupon issued for apprehending and incarcerating him, which warrant bears date 21st January 1748. The Books of Adjournal record that the indictment was read over in open Court and thereafter "Mr Alexander Lockhart, as counsel for the pannell, represented that no proceedings could be had upon this indictment exhibited against the pannell in respect the crime therein charged is said to have been committed so far back as the year 1747, and therefore is prescribed by the elapse of more than twenty years." The record proceeds:
"Partys procurators were then heard at great length thereupon,"
and informations were ordered. The informations are set out at length, and then under date 9th August 1773, there is this interlocutor:
"The Lords Justice-Clerk and Commissioners of Justiciary having considered the Information given in for His Majesty's Advocate, for His Majesty's interest, and the said Malcolm or Callum Macgregor, alias John Grant pannell, and before recorded, and in respect it does not appear, that any sentence of fugitation passed against the pannell, they therefore sustain the defence and dismiss the Indictment and the pannell from the barr."
Prima facie there can, I think, be no doubt that this judgment did sustain a prescription of twenty years as a competent defence to an indictment for crime by the law of Scotland. Such a decision may seem surprising and indeed anomalous. Each of the civil prescriptions in the law of Scotland is statutory; here there is no statute. Nor is there uniform and unvarying usage. According to Baron Hume (Commentaries respecting Crimes, vol. ii., p. 136), the equitable rule of the Roman law "which gives the accused his quietus at the end of twenty years," although sustained in this case, was not established in our older practice. Sir George Mackenzie, who published his Laws and Customs in matters Criminal in the year 1678, "inclined" to the opinion, based on some analogy drawn from the law of Saxony, that there was a vicennial prescription of crime. But, notwithstanding, he writes, "It may be doubted with us, if prescription has place at all." And again, "There being jus quœsitum to the King, by the committing of the crime, both quoad vindictam, et bona fisco applicanda, that right cannot be taken away from him, but by a publick law, or his own privat remission"; and he adds, "There is no instance in all our practicks, where prescription hath been sustained, but on the contrary, crimes of an old date, even after forty years, have been punished." Instances of the contrary practice to which Sir George Mackenzie refers are to be found in the case of James Wilson,tried on 20th December 1649 for incest and adultery committed by him thirty-five years before, and also the cases of Jean Weir, William Dodds, and George Turnbull referred to by Hume and the older authorities. The case of William Dodds was a trial on 2nd October 1663 for the murder of one Andrew Hardie, committed in November 1640. Thus there was not only no statute and no unvarying custom, but there were instances of a contrary custom. And also, prior to 1773, the Roman law in this matter had not been received into the law of Scotland. The Lord Justice-Clerk (Sir Thomas Miller of Barskimming) referred to the question as "quite entire."
When the matter is examined in the light of these considerations, and when regard is had to the recorded opinions of the judges, to which I shall afterwards refer, I think the sounder view is that the rule of a July twenty years' limitation of the Advocate's title was really laid down as a rule of practice based on justice and expediency, and not as a prescription in the absolute sense. The judgment in the case of Macgregor is explained as a striking illustration of the exercise by the High Court of Justiciary of the inherent right the Justiciary had always claimed to formulate and declare rules in all matters criminal. This inherent power, so far as the declaring of new crimes is concerned, is stated by Hume (Com., vol. i. 12) in these words:
"Our Supreme Criminal Court have an inherent power as such competently to punish (with the exception of life and limb) every act which is obviously of a criminal nature; though it be such which in time past has never been the subject of prosecution."
This fundamental assertion of right was judicially affirmed by a Full Bench in 1838 in the case of Greenhuff. A modern example of its exercise is to be found in the case of Strathern v. Seaforth . The power so claimed and asserted is not a usurpation of the powers of the Legislature, it is a prerogative of the Justiciary derived from its history, and coming down from the days of the Justiciar, to do what it deems to be just in all matters criminal, and affecting on the one hand the rights of the Crown, and on the other hand the liberties of the subject. The exercise of this power was seen not only in the declaring of new crimes—that is, crimes not before known to the law of Scotland—but also in the abrogation of old defences, and an illustration of this is furnished in the very matter of prescription itself.
Under the old law of Scotland there existed certain customary limitations of the prosecutor's title or prescriptions of crime. They are referred to by Hume. There was, for instance, a customary prescription of rape. The title of the complainer to proceed with a libel was extinguished under the older law if she delayed to make complaint to the magistrates of the vicinity of the crime beyond a single night. This at one time was admitted as a plea in limineas a bar to prosecution. A relic of this old rule survives in our modern rule that the complaint of the assaulted woman must be made de recenti, but under the older law the objection went to the title of the prosecutor and not merely to the weight of the complaint. Again, in the case of hamesucken, no man could be heard to accuse another if he delayed to make his accusation "by the space of ane nicht and wha males nae fresh and recent pursuit." According to Hume (Com., vol. i., p. 322), "The prosecution for hamesucken, like that for robbery or murder, is said to have been subject of old to a very strict limitation in respect of time (Reg. Maj., C. 4. c. 10). But this rule, if observed of old, has now, for more than a century, been so entirely laid aside, that in the case of Keith of Lentush, action was sustained at the distance of more that three years. In the case of Richard Hamilton, in July 1807, the lapse of ten years even was found to be no bar to the prosecution." A similar limitation at one time applied in the case of assault or real injury.
The point to be noticed is, that these customary prescriptions (there may be dispute as to whether they were not all statutory), which went to the title of the prosecutor, and were not pleadable merely to set up a defence of prejudice before the assize, were all abrogated by decision of the Court of Justiciary. They were treated as rules of practice, and as matters within the competency of the Court to discard. This abrogation I regard as of great importance as pointing to the inherent power of the Justiciary to modify the practice of the Courts where circumstances no longer require the imposition of restraints. If the rule of Macgregor is to be read as truly a rule of practice, then it is within the authority of this Court, in the exercise of its inherent power, as a Court to admit such exceptions to the rule as considerations of justice may require, or to abrogate the rule itself. And this is specially to be insisted in when the rule was laid down in times that are far removed from our own, as regards both the instance of prosecutions and the motives by which they are inspired.
I read the decision in Macgregor as having introduced into our practice and laid down that in the ordinary case the expiry of twenty years from the date of the crime will extinguish the right of the prosecutor to proceed with a libel. But the rule was not absolute. I reach this conclusion upon the following grounds. In the first place, the judgment itself introduced a limitation. It was not put on the lapse of time simpliciter; it was put per expressum in respect that it did not appear that any sentence of fugitation had passed against the panel. No warrant had been executed against the panel although one had been taken out, a precognition had not been taken, nor bad any libel been raised although the panel was all the while within the kingdom and not absconding. The libel, indeed, sets forth that the panel had absconded and fled from justice, but it appears from the information for the panel that he had had his constant residence in Scotland, and for a great part of that time in the county of Aberdeen not far distant from the place where the supposed crime was alleged to have been committed, and that be had carried on business as a dealer in different parts of the country and at various fairs and markets. I think the interlocutor proceeds upon the view that the prosecutor had been in a position to proceed with a libel and had refrained from doing so. In the second place, it is, I think, quite impossible to read the opinions of the judges—we have not the full text, but I see no reason to think the record inaccurate—without seeing that the judges treated the matter as one rather of bar than of prescription in the absolute legal sense. This construction of the judgment is strongly supported by these passages which I quote from Maclaurin (Decisions, p. 603)—Auchinleck:
"Do not consider this as a prescription, but as a rule of justice … clear that prosecutions ought not to last for ever: the question—How long?"
"Do not say that a prescription is here fixed, but take this case as it stands."
"I am now reconciled to this prescription, though at first had some difficulty … prosecution extinguished no matter whether the word prescription be used or not."
"Had the panel absconded or been fugitated"
—showing very clearly that the Court did not accept the allegation in the libel that the panel had absconded—"he could not have pleaded this defence. But the question is, Whether can a man that has appeared publicly for fifteen years be prosecuted … taciturnity a strong plea in law … independent of statute and listened to in questions as to bills. Claim for the jus relictœ at the instance of the widow's executors, repelled at the distance of twenty years." These passages all confirm that what the judges had in mind was bar based upon mora, and not prescription. Again, Kennet:
"Highly expedient there should be a limitation. … Prosecutor may always stop the prescription."
This I think clearly implies that the prosecutor is aware of the crime and of the person who committed it. Finally, the Lord Justice-Clerk said this:
"Law pays great attention to the just defence of pannels. If such prosecution competent to the public, it must be equally so to the nearest-in-kin of the deceased. The private prosecutor may be supposed to have watched his opportunity."
This last observation is significant, because it must not be forgotten that, in 1773, the right of prosecution was not vested, as now, solely in the public prosecutor, with certain limited exceptions, but the right of the private individual to prosecute for an injury done to himself or his kin still existed alongside the title of the Advocate for the public interest. There were obviously strong and compelling reasons for a limitation. Political rancour, clan antagonisms, and civil tumult, with their legacy of hatred, and bigotry, and the lust for vengeance, all enforced the argument from expediency. The Lord Justice-Clerk goes on, after referring to the Roman law, "Why then not sustain a defence for the prisoner founded on that law or on expediency?" Coalston added:
"Interlocutor ought to be guarded. Fugitation—effect of it would have lasted till the party accused surrendered himself to justice."
I think it is a fair and reasonable reading of these recorded opinions that what the Court did in the case of Macgregor was to introduce a rule of practice that the title of the prosecutor is subject to a limitation of twenty years to be reckoned from the date of the crime. The rule, however, was qualified by exception in any case in which the panel had absconded and sentence of fugitation had been passed upon him. I am unable to read the decision as laying down that the rule would not have been subject to exception in any case in which twenty years had expired without discovery of the crime or of the person by whom the crime was committed. The decision did not, in my view, introduce into the law of Scotland, or declare as our law, the vicennial prescription of the Roman law. If the contrary view were to be affirmed, the result would be to introduce into our law what would be essentially a one-sided prescription. In the civil prescriptions the right of the person against whom the prescription runs is a right that continues throughout the whole prescriptive period. But I think cases can be figured in which the Court might sustain a plea of bar on a lapse of time far short of twenty years, where it appeared to the Court in limine, on facts admitted by the Crown, that grave prejudice to the accused might result if the trial were allowed to proceed. The correct doctrine in this matter is, I think, stated by Mr Burnett in his Criminal Law (at p. 309) in this passage:
"As His Majesty's Advocate … cannot be compelled to give his instance, so this officer cannot be controlled as to the way and manner in which he is to give it, or as to the time when he is to exercise his right, except, in as far as he has been restrained by express enactment as to the form of trial and the period within which it must be brought, or by the interference of the Court of Law upon any case of hardship or oppression towards the party accused, by undue delay or otherwise, in conducting the trial."
As I have already pointed out, the rule laid down in Macgregor's case was laid down in times that are far distant from our own, and under social and political conditions affecting the purity of prosecutions, that have long since passed away. I cannot regard a rule so laid down 160 years ago as fixed and unalterable, and so sacrosanct that it is beyond the power of this Court to declare that the rule no longer exists. I think it should be so declared.
This appears to me to be in accordance with justice and expediency. Twenty years may be a long time when men look forward, but it is a short time when men look back. It requires no effort of the imagination to figure a notorious crime committed twenty years ago, in which, were the criminal allowed to walk abroad with impunity merely because twenty years had run, such a liberty would be against the public conscience, and contrary to the community sense of what is just, upon which the law and respect for the law must ultimately be based. I am glad that we are not compelled to acquiesce in any such situation. I accordingly think that the learned Sheriff was right in repelling the plea of prescription, and that the appeal should be refused.
The Sheriff, in the note which he has prepared and which has been submitted to us, appears to think that the decision did not amount to an affirmance of the existence of prescription of crimes as part of the law of Scotland, and the subject was developed by the Crown in the argument presented to us. In this view I am quite unable to concur.
The prisoner Macgregor was charged on indictment with having committed the crime of murder on 25th December 1747. On being brought, to the bar, in place of pleading not guilty, he offered by his counsel a plea of exclusion or bar of the prosecution, viz., that, more than twenty years having elapsed between the time when the murder was charged to have been committed and the commencement of the prosecution, the crime was prescribed. The answer to that plea was that no vicennial prescription of crimes is known or established in the law of Scotland, and therefore that the prisoner could draw no benefit from the lapse of time in bar of the prosecution. Consideration of the question was remitted from the Circuit Court at Aberdeen to the High Court of Justiciary in Edinburgh.
After hearing counsel at great length upon this preliminary plea, the Court ordered informations. Fortunately those informations, prepared with great care and ingenuity by the eminent counsel who represented the Crown on the one hand and the prisoner on the other hand, are extant, and enable one to form a clear view of the precise question which the Court was asked to decide.
In the information stated on behalf of the Crown it is clear that the prosecutor desired an answer to the general question as to whether prescription applies to crimes. After indicating that, if the case went to trial, he would be able to found on circumstances excusing the delay, he asks these to be disregarded, "for, if what be maintains to be the law is an inexpedient and unsalutary law, when applied to a case the most favourable that can be figured on the part of a prisoner, he wishes not to see it established to be the law of this country, and therefore he has avoided stating any circumstances the least unfavourable to the prisoner. In this question it is the law and not the prisoner he looks to." In giving reasons for the contention against prescription, reliance is placed on the circumstance that there is no Scots statute incorporating the vicennial prescription of crimes as part of the law of Scotland, even on the assumption that, according to Roman law, it applied to crimes such as murder. It may be noted, however, that it was not suggested that it was only by statute that it might become part of the law of Scotland. It was assumed that it might have been adopted by custom. Criticism is offered of the passages from institutional writers founded upon by the defence as establishing the existence of prescription of crimes as part of the common law, and a number of cases are referred to in which it was alleged that the Court had entertained prosecutions for crimes committed more than twenty years prior thereto. Finally the contention was advanced, "If the question is unsettled, and that there is understood to be in the Court a discretionary power of settling it the one way or the other, it is admitted that expediency may justly be taken into consideration, but the prosecutor must be forgiven to think, after all he has heard upon the subject of expediency, that it leans to the side of no prescription in defence against a prosecution for murder."
The information for the panel says:
"The question before the Court is … whether the law of Scotland acknowledges a prescription of crimes, and in what time it runs."
In submitting that the law of Scotland recognises the vicennial prescription of crimes derived from the civil law, there is a learned disquisition on the law of Rome showing that there was one uniform and clear law that all crimes were extinguished in twenty years, "after which no criminal prosecution of any kind could be insisted in, this being longissimi temporis prœscriptioas to crimes, though in some few cases a shorter prescription was introduced." That law, it was explained, had been adopted in the systems of jurisprudence of different European nations, although not in the English system. Instances are given from the law of France, "which in this particular is founded upon no special constitution but upon the Roman law, and upon the principles of common law and reason." It is said, "This prescription of twenty years in crimes has in effect become the law of nations, and several other nations who have many statutes in other cases have yet allowed of this prescription." Reference is made to passages in the Works of Sir George Mackenzie (vol. ii., p. 54), Forbes's Institutes (II. 21), and Erskine's Institute (IV. iv. 109 and 110), in support of the view that Scots law has by custom adopted the Roman law of the vicennial prescription of crimes. "We have," says the information, "the concurring opinions of all the writers upon the criminal law of Scotland agreeing to this, that the prosecution of crimes ought not to be perpetual and that the vicennial prescription of the civil law is the rule with us." The different cases founded on by the prosecutor are critically examined in detail, and shown not to afford an obstacle to the acceptance as part of the common law of Scotland of the doctrine of prescription of crimes. In conclusion, the information deals with the question from the standpoint of expediency. The following passage may be quoted:
"Though the dread of punishment is, no doubt, one great cause of preventing crimes, the question is whether it is not sufficient for the purpose, that the operation of this dread not only takes place before the commission of the crime, but must continue for the long period of twenty years after, and whether there are not other reasons of expediency, which come in to over-balance the consideration just now mentioned, and greatly to preponderate in favour of the prescription after twenty years."
The decision pronounced by the Court upon the preliminary plea taken on behalf of the panel was, "in respect it does not appear that any sentence of fugitation passed against the pannell, They therefore sustain the defence and dismiss the indictment and the pannell from the barr."
The record of the opinions expressed by the judges is neither complete nor satisfactory. From some of the notes it may be legitimate enough to argue that the expression of opinion appears rather to support a plea of personal bar than a prescription. It is obvious, however, that, as there had been no inquiry into the facts and as the only plea in defence was founded on prescription, no importance attaches to this circumstance. In justifying an opinion favourable to prescription, it is not unnatural that language should be used which might equally, or more appropriately, be applied to a plea of personal bar. It is clear that no one doubted that it was a considered opinion by the Court in favour of the existence in the law of Scotland of the vicennial prescription of crimes. Maclaurin in reporting the case questions its justice on this assumption. From a passage in Boswell's Journal of a Tour to the Hebrides, it appears that the author on 14th August 1773 had a discussion with Dr Johnson about the decision. The passage starts in these terms:
"We had a little before this had a trial for murder, in which the Judges had allowed the lapse of twenty years since its commission as a plea in bar in conformity with the doctrine of prescription in the civil law which Scotland and several other countries in Europe have adopted"
; and it then goes on to give Dr Johnson's view upon the subject.
Since the decision pronounced by the Court of Justiciary in Macgregor's case there is no record of any prosecution having taken place in respect of a crime committed more than twenty years prior thereto. The decision has again and again been treated as an authoritative decision on prescription. It is so reported in Morison's Dictionary (M. 11,146-11,147). Baron Hume in his Commentaries on the Law of Scotland respecting Crimes (vol. ii., p. 136) says:
"The question may naturally be asked respecting the prosecutor's title, public or private, Does it endure for ever, or is it, like most matters of civil claim, liable to be extinguished by length of time?"
After dealing with considerations which "plead powerfully in support of that equitable rule of the Roman law (recommended also by the general practice of nations in modern times), which gives the accused his quietus at the end of the twenty years," the learned author proceeds:
"Though not established in our older practice, this humane defence was accordingly, on mature deliberation, sustained in bar of trial, in the case of Callum Macgregor, who was indicted at the Lord Advocate's instance in spring 1773, for a murder committed in December 1747 … We may conclude that, if relevant against a charge of murder, that crime of which the memory lasts the longest, this defence will be no less effectual in the case of the less atrocious offences."
Sir Archibald Alison in his work on the Practice of the Criminal Law of Scotland (vol. ii., p. 96) has this passage:
"The public, equally as the private prosecutor, may insist against an accused party at any time within twenty years from the date of the offence; but the lapse of that period is an absolute bar to any further proceedings."
"In the case of Callum Macgregor, August 1773, it was solemnly decided, after great consideration, that the lapse of twenty years is a complete bar to any ulterior criminal proceedings."
In the second edition (Skelton's edition) of Dickson's Law of Evidence in Scotland, vol. i., see. 404 (5), this statement appears:
"By common law the right to prosecute criminally prescribes after twenty years from the date of the offence, unless the accused has been fugitated."
The only support for the contention of the Lord Advocate to which we were referred is contained in a sentence which is to be found in the work of the late Lord Justice-Clerk, Lord Kingsburgh—Macdonald on Criminal Law, (4th ed.) p. 312—adopted by Lord Anderson in his work on the same subject. The sentence in the first of these works is:
"There is no rule of law establishing a prescription of crime."
No opinion of any jurist or passage from any decision is mentioned in support of this view. The decision of Macgregor is not discussed. The sentences following the one I have quoted are:
"In one case, where the prosecution was thirty years after the offence, the accused having been all the time within the kingdom, the Court dismissed the indictment. Hume thinks that twenty years should be sufficient to bar prosecution, unless the delay was caused by the accused absconding; and even in that case the prosecutor, if he desired to keep up his right to pursue, should demand sentence of fugitation."
When the whole paragraph is read together it maybe questioned whether it amounts to doubt as to the soundness of the decision.
The first edition of Macdonald appeared in 1866. Since that date several editions of Erskine's Principles of the Law of Scotland, the recognised text-book on Scots law, have appeared under the learned editorship of different writers, latterly of the late Professor Rankine, Professor of Scots Law in the University of Edinburgh. In Book IV., tit. iv., par. 66, occurs this sentence:
"Crimes are also extinguished by prescription, which operates by the mere lapse of time without any act either of the Sovereign or of the private sufferer. Crimes prescribe, both by the Roman law and [apparently also] by the custom of Scotland, in twenty years [unless the accused had absconded and had been fugitated]; but in particular crimes the prescription is limited by statute to a shorter time."
The passages in brackets are by the learned editor. There are references to Hume, Mackenzie, and Macdonald in the marginal note. Erskine's Principles has gone through no fewer than twenty-one editions since its first publication in 1764 without the accuracy of his statement on prescription of crimes being, questioned. In Cook v. North British Railway Co . Lord Neaves said:—
"There is a vicennial prescription as to crimes."
In considering the present appeal two points arise: (First) Are we entitled to reverse a decision of the whole Court of Justiciary pronounced in 1773; and (second) on the assumption that we are so entitled, has a case been made out for the Crown, on the ground either of principle or of expediency, which would justify our taking such a course? For my own part I consider both these points should be answered adversely to the contention of the Crown.
The decision in Macgregor's case was pronounced by a Court of equal jurisdiction with the present Court. It has stood unchallenged for a period of 160 years, and ought in my opinion only to be reversed by Parliament on a case being established for an alteration of the law as then declared. A suggestion made in argument that the Court could declare a prescription of crimes against the Crown only if a statute had placed such a limitation upon the right of public prosecution appears to me to carry no weight. As is said by Stair (Inst. I. i. 16):
"We are ruled in the first place by our ancient and immemorial customs, which may be called our common law; though sometimes by that name is understood equity, which is common to all nations, or the civil Roman law, which in some sort is common to very many."
It would be idle to attempt a definition of the initial act upon which custom is founded. The inference as to its existence must be drawn from the evidence available from practice or the writings of those who have made a study of the principle and practice of the law. Those sources were available to the judges who dealt with the question in 1773. Even if we thought the conclusion reached by them was wrong, which I am far from thinking, do not think that we should be entitled to reverse the decision unless we were prepared to usurp for ourselves an authority which a Scots Court has never claimed. It would be deplorable that, in order to approve of the Crown prosecuting a man for an act of bigamy committed more than twenty-three years before the prosecution, we should affirm the right of the Crown to prosecute for crime irrespective of the lapse of time and of the decision in Macgregor's case.Incidentally, it may be mentioned that the most recent precedents on which the Crown can found occurred over 260 years ago, and were cases which the Court in 1773 considered, for reasons to be found in the information for the defence, did not exclude the view that the vicennial prescription of crimes had become part of the law of Scotland.
As regards principle and expediency there are no doubt reasons which tell both ways. According to English law there is no prescription of crimes, i.e., of the right to prosecute crimes. On the other hand, other European countries whose jurisprudence is more closely founded on the law of Rome than is the English criminal jurisprudence have adopted the Roman prescription of twenty years. It may be easy to point to a hypothetical case where it might be contrary to public conscience that freedom from prosecution for a crime committed more than twenty years before should exist. The question, however, must be considered on a balancing of considerations. From the informations presented in Macgregor's case it is manifest that the Court had before it these different considerations. One cannot read the enumeration of the reasons given for the defence without seeing that the Court might readily consider them as overbalancing the considerations in favour of continuing the right to prosecute after the lapse of twenty years. I do not propose to give these reasons in detail. Perhaps I may be allowed to refer briefly to passages in Erskine and Hume bearing on this point.
The former author in his Institute (IV. iv. 109) says:
"Crimes are also extinguished by prescription, which operates by the bare running of time without any act, either of the sovereign pardoning, or of the private sufferer forgiving. This manner of extinction is indeed censured by some writers, (first) as being destitute of any support from our statutes or usage; (2 dly) as encroaching on the right which accrues to our sovereigns on the commission of crimes; and (3 dly) as contrary to justice and good policy, which ought not to suffer flagitious men to pass altogether without punishment, merely because they have not been called to account for their crimes for a certain tract of time after committing them, perhaps through the neglect or connivance of those whose duty it was to have prosecuted them sooner. Nevertheless the prescription of crimes seems to be established upon a solid foundation; for not only is the deterring of others from following wicked courses, which is one of the ends of punishment, in a great degree lost when the penalty of the crime is inflicted so long after its commission, that there hardly remains the least memory of it; but (2 dly) by delaying the trial for many years together, the pannell may be quite deprived of the benefit of exculpation y the intermediate death of witnesses who might have proved his innocence. Upon these grounds crimes prescribe, both by the Roman law (L. 12, C. Ad leg. Corn. de fals.) and by the usage of Scotland, in twenty years (see Mackenzie, Criminal Laws, pt. ii. tit. 29)."
Hume (vol. ii., p. 136) says:
"The natural decay of resentment, public and private, in the course of time; the anxiety endured by the culprit for so many years; the difficulty of establishing the whole circumstances of the fact; the possible, nay, the probable loss of the pannel's evidence in exculpation; the obvious unfairness of the prosecutor's own conduct in delaying so long: All these considerations plead powerfully in support of that equitable rule of the Roman law (recommended also by the general practice of nations in modern times), which gives the accused his quietus, at the end of the twenty years."
The decision in Macgregor's case introduced an exception against the plea of prescription in the case where the accused had absconded from the country and been fugitated, and apparently it was argued that we might introduce a further exception and make the prescription run from the date when the Crown had knowledge of the commission of the crime by the accused. There appears to me to be no justification for such a contention. It would in effect destroy prescription as a plea in criminals prosecutions. In my opinion the appeal ought to be sustained and the conviction quashed.
The appellant arrived at this general conclusion by two stages in argument. In the first place, he endeavoured to establish that, by the law of Rome, there was a vicennial prescription, which applied to all crimes. The second step of his argument was that, by custom or usage, this vicennial prescription has been made a rule of the common law of Scotland. The onus is on the appellant to establish both of these propositions, and, as the alleged prescription is pleaded against the Crown, it seems to me that the burden of proof is not light. Mr Morton, for the appellant, did not maintain the extreme contention that appears to have been urged for the panel in the oral debate in Macgregor that the Roman law, in all questions and matters not established and ruled by the law of Scotland, was held to be a part of the law of Scotland. He conceded that he must prove that the vicennial prescription of the Roman law had been adopted by the law of Scotland, and, as it is common ground that this has not been done by statute, that it had been effected by usage.
In the information in Macgregor much learning is expended on the first step of the appellant's argument. The vicennial prescription of the Roman law is based on a Constitution of Diocletian and Maximian, which is found in the Code under the title "Ad legem Corneliam de falsis." There is much to be said for the view that this lex does not apply, and was not designed to apply, to all crimes, and, in particular, that it was not applicable to crimina graviora, such as murder, parricide, and treason. I shall assume, however, in the appellant's favour, that the vicennial prescription of the Roman law applied to all crimes. The difficulty I have in the case emerges when the second stage of the argument is reached.
I am unable to see how prescription—that is, the limitation or extinction of a right by the lapse of a definite period of time—can be anything but the creation of statute. Erskine in his Title on Prescription (Inst. III. vii. 1) says, "The law of prescription hath been by many writers censured as hardly agreeable to the law of nature, and Stair seems to favour this opinion when he says (II. xii. 9) that it is of positive institution, and founded on utility rather than on equity. Thus far must be admitted, that it is not deducible directly from natural law, and that it hath received all its forms from statute." The principle which underlies prescription is that discharge of a right is presumed by undue delay in enforcing it, and, in the case of certain rights, a definite period of time is fixed for this discharge or extinction. But it is difficult to see how this can be effected by usage. Thus it is not surprising that, in different legal systems, all prescriptions depending on the lapse of a definite time are statutory. So it was in the law of Rome. So it is in the law of Scotland. Our principal statutory prescriptions are the long negative prescription of forty years (1469, cap. 28, 1474, cap. 54); the positive prescription of forty years (1617, cap. 12), now twenty years (37 and 38 Vict. cap. 94, sec. 34); the Triennial Prescription of Actions of Spulzie and Ejection (1579, cap. 81), and of Servant's Fees, House Rents, and Merchant's Accounts (1579, cap. 83); the Vicennial Prescription of Retours (1617, cap. 13), and of Holograph Writings (1669, cap. 9); the Quinquennial Prescription of Stipends, Multures, Rents, etc. (1669, cap. 9); the Septennial Prescription of Cautionary Obligations (1695, cap. 5); the Decennial Prescription of Tutorial and Curatorial Accounts (1696, cap. 9); and the Sexennial Prescription of Bills of Exchange (12 Geo. III. cap. 72). It is suggested in the information for the panel in Macgregor that, by the "customs" of other countries, there is prescription of crime. If this means that such prescription has been set up by usage, no example is given in the information. In my opinion none could be given, for no prescription, as I think, could be so created. By the law of England there is "no limitation at common law to a criminal prosecution on indictment." Nullum tempus occurrit regi (Russell on Crimes, ii., 1786). This means, as I understand it, that indefinite delay in prosecuting cannot be urged even as an element in bar. An Act of Parliament is thus, as it seems to me, essential for the purpose of fixing the precise period of time which is to effect prescription. It is also advantageous, if not essential, that there should be precise definition of the exceptions which may interrupt prescription and of the term from which it is to run. In the present case, for example, the common law relied on by the appellant seems to leave it indeterminate whether the twenty years run from the commission of the crime, or from the date when the accused is first suspected, or from that on which the Crown is in possession of such information as warrants a prosecution.
It is said, however, that the difficulty figured as to a definite period of time does not arise in the present case, as the precise period of twenty years is fixed by the Lex Cornelia. This lex, it is maintained, with its vicennium, has been incorporated into the law of Scotland by usage. It may well be that certain rules of foreign law may be adopted, or rather copied and imitated, by the law of Scotland by way of usage. In this way we have copied the Roman doctrines of legitimation per subsequens matrimonium, and of the edict Nautœ caupones, in the latter case, as explained in Mustard, with amplifications and modifications. But the most effective and satisfactory way of adopting foreign law is by incorporating it in a statute, as was done in Scotland when the Mosaic law as to incest was adopted by the Act of 1567, cap. 14. With regard to the vicennial prescription, however, it is difficult to see how usage could operate. How this usage, fettering the Crown, began, and how it was continued until it hardened into a custom and rule of law, I find myself unable to figure. The alleged usage must have had a beginning, and the first step must have been a concession by the Crown, on objection taken to a belated prosecution, that it would hold itself bound by the vicennium of the Roman law. This concession must have been repeated in similar cases until it hardened into a custom and warranted the Court in declaring it a rule of the common law. There is no evidence from the records that anything of this nature took place. On the contrary, when the precedents come to be considered, it will be found that they are negative of the suggested usage. It is difficult to accept the view that the Crown would make the concession suggested, or assent to any limitation of its powers of prosecution which were not imposed by a statute to which the Crown had been a party.
The appellant maintained, however, that, on authority, the vicennial prescription is a part of the common law of Scotland. If this is conclusively established, then, however difficult it may be to conceive how the thing happened, the appellant would be entitled to succeed. It is necessary, therefore, to consider the authorities relied on. These autho- rities consist of (a) institutional writers, and (b)the case of Macgregor. Of the institutional writers referred to at the debate, five—Mackenzie, Forbes, Erskine, Fountainhall, and Maclaurin—wrote prior to the decision of Macgregor, while three—Hume, Alison, and Macdonald—published their treatises subsequently to that case.
The authority of Mackenzie (Works, vol. ii., p. 264) is claimed by the appellant. No doubt Mackenzie, after stating the argument for prescription, says that he rather inclines to this opinion. On the other hand, he points out that "there is no instance in all our practicks where prescription hath been sustained, but, on the contrary, crimes of an old date, even after forty years, have been punished." On this last statement it would seem that Mackenzie's opinion ought to have "inclined" the other way.
Forbes (Inst., II. 21), who wrote in 1730, follows Mackenzie, and declares for the vicennial prescription.
Erskine, who wrote somewhat later than Forbes, deals with the subject both in his Institute (IV. iv. 109 and 110) and in his Principles (IV. iv. 66). Erskine seems to base himself on Mackenzie, and appears to favour the view for which the appellant contends.
On the other hand, Lord Fountainhall has expressed the opinion that the vicennial prescription of crime is not part of the law of Scotland, and the same view was held by Maclaurin. The opinions of the authorities, accordingly, prior to the decision of Macgregor, were not unevenly balanced.
As regards the institutional writers subsequent to the decision of Macgregor, Hume (Com., vol. ii., p. 136) is somewhat cautious in his language, although the paragraph in which he deals with the matter is rubricked "Prescription of Crimes." There is much to be said, however, for the view that Hume had really in his mind the defence of bar arising from lapse of time and change of circumstances prejudicial to the accused. He is careful to point out that the vicennial prescription deriving from the Roman law was not established in our older practice. His opinion on this point may thus be set against the opinions of Mackenzie, Forbes, and Erskine. Hume's view as to the import of Macgregor is that the Court there sustained a defence of bar based on lapse of time and other circumstances. Alison (vol. ii., p 97) also used the term "bar" and not "prescription" when he states his opinion that a lapse of twenty years extinguishes the right to prosecute. Macdonald (Criminal Law, 4th ed., p. 312) is of opinion that there is no prescription of crime in the law of Scotland. Each of the three last-mentioned writers refers to the case of Macgregor as authority for the views expressed. It is manifest that Macdonald must have read the case as not being a decision on prescription, otherwise he would have been bound to follow it. The debate was enlivened by the citation of other "authorities" in the shape of references to Boswell's Tour to the Hebrides and Wilson's Tales of the Borders, but I did not understand that it was seriously maintained that the Court should allow itself to be influenced by the views of James Boswell and Christopher North on the topic under consideration. The appellant obtains some support from the opinion of Lord Neaves in Cook, who declares for a vicennial prescription as to crimes.
As Lord Neaves, like Hume, Alison, and Macdonald, had doubtless in mind the case of Macgregor, it becomes important to ascertain what that case really decided. It has to be kept in mind that the duty of a Court is to declare the law and not to make it. It it thus not unimportant to consider what the practice of the Court was, in reference to the topic under consideration, prior to 1773, when Macgregor was decided. In the information for the Crown in Macgregor, a number of cases are cited in which prosecutions took place after twenty years. Some of these cases, as in the charges of witchcraft, may be said to be concerned with crimina continua, although even in these cases, if the vicennial prescription applied, charges anterior to the twenty years ought to have been disallowed. The case of James Wilson,however (10th December 1649), in which the crime of incest committed in 1614 was prosecuted to conviction, appears to be a precedent adverse to the appellant's contention. The same observation applies to the case of William Bruce, alias, Callum, who was prosecuted and convicted in April 1670 for, inter alia, a murder committed twenty-seven or twenty-eight years earlier. Hume also cites two cases in which prosecutions took place more than twenty years after the commission of the offences—William Dods (murder), 2nd October 1663 (twenty-three years), and George Turnbull (theft of a colt), 23rd August 1663 (twenty-six years). He also refers to a number of cases in which prosecutions had been delayed for periods ranging from five to fifteen years. A panel might be as seriously prejudiced by a delay of ten or fifteen years as by that of twenty years. On the other hand, the public conscience might well be shocked if an atrocious murder, revealed even after twenty years, were not prosecuted by the Crown.
In 1773, therefore, when the Court had to consider the defence maintained by the panel in Macgregor, the state of the law as to prescription of crime was this: certain institutional writers declared for prescription, while others were against it; no statute establishing it had been passed; there was no evidence from the records that usage was operating to set it up as a rule of law, but, on the contrary, the precedents and practice negatived the view that it was a part of the law of Scotland. The duty of the Court being, not to legislate, but to declare the law as it existed, what was the decision in Macgregor? The record bears that the defence proponed was:
"In respect the crime charged is said to have been committed so far back as the year 1747, and therefore is prescribed by the elapse of more than twenty years."
The judgment of the Court was that "in respect it does not appear that any sentence of fugitation passed against the pannell they therefore sustain the defence and dismiss the indictment and the pannell from the barr." What does this judgment import? Is it based on a defence of bar, in which the element of lapse of time plays a part but not the sole part, or does it affirm that the vicennial prescription is part of the law of Scotland? If this question had to be determined on a consideration of the recorded defence and judgment, it would be difficult to avoid the conclusion that it has the latter and not the former signification. It is true that it does not specifically mention the vicennial prescription, or even use the term "prescription," and it has a reference to a special circumstance—fugitation—which does not seem relevant to the running of a prescriptive period of years. But it sustains the defence, and the only defence was an invocation of the vicennial prescription.
When, however, the opinions of the judges are looked at (and it seems to me that we are bound to consider these opinions as explanatory of the ground of judgment) the matter is not so plain. I do not propose to examine the opinions seriatim, but it seems to me that the judges were moved by humanitarian considerations, of which delay in taking proceeding was only an element. Thus the facts that the accused had not absconded, had not been fugitated, had lived "virtuously" in the same district of Scotland, and had probably been prejudiced in his defence, all seem to have influenced the judgment. It is also assumed that the prosecutor was in possession of the necessary material to have brought his indictment at an earlier date. Hence the judgment seems to have rested, as Lord Auchinleck puts it, not on prescription, but on a "rule of justice." In short, as I read the opinions, the, judgment was based on bar, and not on prescription. I am fortified in this view by certain considerations which were forcibly urged by the Lord Advocate and which must have been present to the Court in 1773. He pointed out that a hard-and-fast rule of prescription cannot be worked equitably, but that all crimes may be appropriately and equitably dealt with under the doctrine of bar. It was suggested by the appellant that the judgment could not have proceeded on bar, as this defence only, arises after inquiry into the facts. This is generally, but not universally, the ordinary procedure, and if facts relevant and sufficient to support the defence of bar are admitted or, disclosed in the pleadings, the plea may be sustained without inquiry. This course was followed in Cook. Our Courts are as anxiously concerned for the rights of the accused as for those of the Crown. I am of opinion that, while the rights of a panel may be completely safeguarded under a defence of bar, the rights of the Crown and of the public might be seriously prejudiced if it were to be held that, in every case, irrespective of circumstances, a criminal is to be free from prosecution after twenty years. Cases might be figured whereby such a result would outrage the public conscience. If, for example, the criminality of Burke and Hare had only been revealed after twenty years and no prosecution had followed, there would, I am sure, have been a public outcry. A recurrence of such cases would undoubtedly lead to Judge Lynch becoming a member of the College of Justice. If, then, the judgment in Macgregor maybe read as one based on bar, it does not stand in the way of our declaring now that, by the law of Scotland, there is no prescription of crime.
If, however, the view be taken that the Court in 1773 meant to decide, and did decide, that vicennial prescription of crime is part of the law of Scotland, their judgment, in my opinion, was legislation and not judicial decision. On the material before them they did not have a basis for a declaratory judgment. The decision was thus, in my opinion, erroneous and should now be reversed, if this Court is competent to do so.
On this, the last point in the case, I am clearly of opinion that we have power to reverse. There might have been difficulty (although I do not think it would have been insurmountable) if the whole "Fifteen" had been Commissioners of Justiciary and parties to the decision. But a Court of twelve judges is now considering the judgment of a Court of six, and I have always understood that, by our settled practice, a larger Court could review the decision of a Court which was fewer in number. Moreover, any doubt as to our competency to review the decision in Macgregor would seem to be removed by the provisions of the Criminal Appeal (Scotland) Act, 1926, which empower the High Court of Justiciary, sitting as a Court of Criminal Appeal, to determine any question of law raised by a prisoner's appeal. The determination of the question of law may involve, as it does in the present case, the validity of a standing decision.
My ground of decision is that prescription of rights based on the lapse of a definite period of time can, especially where it fetters the powers of the Crown, be made part of our law only by Act of Parliament, and that the appellant's attempt to show that it has been set up by usage necessarily fails.
I am therefore for repelling this effort to shorten the "long arm of the law," and for refusing the appeal.
It appeared to be agreed on both sides of the bar that, by the law of Rome, there was a general vicennial prescription of crimes, unless, indeed, in some few cases in which a shorter period of prescription was enacted. No argument to the contrary of this proposition was submitted.
It is, however, in my opinion quite settled that, however valuable as a guide in principle, Roman law becomes the law of Scotland in so far only as it has been adopted as part of our law by what Stair calls "the acquiescence of the nation," that is to say, either by custom, decision, or statute. It is unnecessary to cite authority beyond that of Lord Stair himself. Thus, referring to the law of Rome, he states that it is "not acknowledged as a law binding for its authority," but only "being as a rule, followed for its equity" (Stair, I. i. 12). And again, "our customs as they have arisen mainly from equity, so they are also from the civil, canon, and feudal laws, from which the terms, tenors and forms of them are much borrowed; and therefore these (especially the civil law) have great weight with us, namely, in cases where a custom is not yet formed. But none of these have with us the authority of law, and therefore are only received according to their equity and expediency, secundum bonum equum" (Stair, I. i. 16). To the same effect are Bankton (I. i. 42), and Erskine (I. i. 27 and 41).
As regards our criminal law in particular, the point is fully discussed by Hume (vol. i., p. 15) and determined to the same effect. I shall refer immediately to the special case of vicennial prescription of crime.
Now, it would appear that, prior at least to the decision of Macgregor's case in 1773, there is no record of any decision of a Scottish Court to the effect that our criminal law recognised any such prescription. And there is certainly no statutory enactment to that effect. Sir George Mackenzie (Works, vol. ii., p. 264), whose authority is here invoked by the appellant, is quite definite on this point. "There is no instance in all our practicks, where prescription hath been sustained, but on the contrary, crimes of an old date, even after forty years, have been punished." Such authority as is before us in the papers tends to confirm this. A considerable number of cases are cited in the minutes of debate in the Macgregor case, in which indictments were apparently sent to trial without objection taken, although containing counts alleging crimes committed over twenty years prior to prosecution. I agree that in many cases these are open to the reply that certain of the crimes in question, e.g., the witchcraft cases, might fairly be regarded as crimina continua,but in all these cases an interlocutor of relevancy passed on the libel as framed, and it does not appear that the Crown or other prosecutor was ever put to the above defence to sustain the relevancy of the charge. In the absence of any decisions prior to 1773 in favour of a vicennial prescription, we were referred to the opinions expressed by our institutional writers. Of these the most material is Sir George Mackenzie (vol. ii., pp. 54 and 264). After discussing the arguments for and against prescription of crimes, he concludes by stating (vol. ii., pp. 264, 265) that he inclines to the opinion that our law follows the Roman law, but mainly on the ground that some Continental states have so done. If the matter is regarded as open, the reasons adduced by him for rejection of the doctrine appear to me the more convincing; in particular, and apart from the absence of all precedent in our practice already referred to, that "prescription hath no place with us except where transacted by a particular statute and there is no such statute," and that, if it were necessary to introduce prescription by statute in civil cases, a fortioriwould this have been so enacted in criminal cases, more particularly, as he adds, in respect that prescription cannot be pleaded against the Crown short of statute, or of its own consent.
As regards the first of these arguments, that statutory authority is required as a warrant for prescription in some limited and prescribed period, this opinion is confirmed by Lord Stair. "Prescription," he says, "although it be by positive law, founded upon utility more than upon equity, the introduction whereof the Romans ascribed to themselves; yet hath it been since received by most nations; but not so as to be counted amongst the laws of nations; because it is not the same, but different, in diverse nations, as to the matter, manner and time of it" (Stair, II. xii. 9). And again (II. xii. 12):
"By our ancient custom, there was no place for prescription in any case, which hath been corrected by our statutes, both as to long and short prescription."
He then proceeds to deal seriatim with each of the long and short prescriptions or limitations, each of which is referred to as based on some particular statute. To the same effect Erskine, speaking of prescription generally, says:
"Thus far must be admitted, that it is not deducible directly from natural law, and that it hath received all its forms from statute"
(Inst., III. vii. 1). These arguments are, to my mind, formidable. The counter-arguments tabled by Sir George Mackenzie are much less convincing, viz., that there is small public interest to protect after long delay; and that injustice to the accused from loss of evidence and the like may result. This latter plea is, of course, open whether or not a twenty years' prescription is part of our law, and is therefore not material. The last point advanced, that the prosecution is barred from founding on its own neglect to take action, must obviously be limited in any event to cases in which the prosecution knew or might have known of the commission of the crime, and were in a position to take action by apprehending or citing the accused. His argument on page 54 in relation to the authority of Roman law, that in certain statutes it is referred to as "the common law," is fully dealt with and answered by Stair (I. i. 16), and by Bankton (I. i. 42), who points out that by the common law is meant, not the common law of Scotland, but "the law common to most nations"—that is, the civil law or common law of Rome. The other point taken for the admission of Roman law, that "crimes are the same everywhere," is answered not only by Mackenzie himself in the passage already cited, but is disposed of by Hume (vol. i., pp. 16, 17). I have dealt in some detail with Sir George Mackenzie's view, because Forbes in his Institutes gives no reasons for his statement favouring vicennial prescription, and Erskine's statement (Inst., IV. iv. 109) that this is admitted by "the usage of Scotland" is merely founded on Sir George Mackenzie. So far as I have noticed, both Balfour in his Practicks and Lord Bankton in his Institutes are silent upon the matter of prescription of crime.
My conclusion is that, prior to 1773, there is no authority for the view that our law adopted the law of Rome in this respect.
As regards the case of Macgregor, I agree that the issue as presented in the minutes on either side was whether there was or was not in law a vicennial prescription of crime, or perhaps more accurately, of the Crown's right to prosecute. I also agree that the terms of the inter- locutor do affirm this "defence" in cases where fugitation had not passed against the panel.
It is perhaps not fair to lay too much stress upon the imperfect notes of the opinions of the judges which we have before us, but, so far as these go, it would appear that several of the judges expressly decided the case, not on any such prescription, but on equity, or, in other words, personal bar; and some of the judges, although they appear to accept "prescription," gave weight to the prejudice sustained by the panel owing to the delay in prosecution. The idea of bar does seem at least to colour the majority of the opinions. This principle is quite distinct from that which underlies the notion of a fixed term of prescription. I agree that, logically, bar is not a prejudicial plea, inasmuch as it depends in general upon fact, and that accordingly a question of bar is usually only determined after some inquiry. This difficulty was apparently met by some of the judges by finding that certain "prescriptions" were raised, which are variously described as prescriptions of negligent or intentional failure to take action on the part of the prosecutor, or of innocence, or otherwise of prejudice sustained on the part of the panel. Maclaurin in his note regards the case as having been decided merely on "expediency," and plainly enough questions its soundness. Hume (vol. ii., p. 136), under the marginal note "prescription of crime," does, however, seem to regard the case as adopting the equitable rule of the Roman law "which gives the accused his quietus at the end of twenty years"; but states that this "humane defence" was sustained in respect that "no warrant had been executed, nor precognition taken, nor libel raised against him all the while, though within the kingdom and not absconding." This appears to assume against the Crown, contrary to the terms of the indictment, that the Crown was in a position to bring the case to trial if it so desired. For otherwise the Crown might have been protected by the maxim Contra ignorantem aut non valentem agere non currit prœscriptio. And if the factors stated by Hume formed a substantial ground of judgment,, the case would seem to have turned, to some extent at least, on the principle of bar.
I am unable, accordingly, to regard the case of Macgregor as a satisfactory warrant for holding that, in our law, the right to prosecute a crime prescribes by the lapse of twenty years from its commission. Even if it were so in the case of the private prosecutor, different considerations might apply to the case of the Crown acting in the public interest.
Among later authorities Alison, on the one hand, quite definitely adopts the authority of Macgregor's case, while Lord Justice-Clerk Macdonald's opinion is contrary (Criminal Law, (4th ed.) p. 312).
Even if Macgregor's case, however, be regarded as having decided the question, I am of opinion, contrary to the argument submitted for the appellant, that it is open to this Court, if it thinks fit, to overrule it. No authority was referred to in support of the view that the traditional rule which, theoretically at least, prevails in the House of Lords applies in Scotland, so as to prevent the High Court of Justiciary from reconsidering a former judgment. Thus Sir George Mackenzie (Works, vol. ii., p. 54):
"The decisions of our criminal Courts, as of all others, do bind the same or succeeding Judges rather out of decency than necessity. … Judges should no more be tied from altering their decisions, than philosophers to continue in the errors of their youth."
He qualified this by adding, "unless, indeed, a whole tract of decisions can be produced."
I should have hesitated to disturb a clear decision which, although canvassed by legal writers, does not appear to have been judicially challenged for over 150 years, if there was good reason to suppose that it had been followed in, or had affected, the practice of our criminal law. But the cases in which any such question can have arisen must, I think, have been very rare. This, of course, is a conjecture, for, in the absence of any record, it would be difficult to affirm that the supposed rule may not have affected the decision of the Crown to mark proceedings. It is, however, significant that there is no record in our books in modern times even of a plea of bar based on delay in prosecution and prejudice thereby sustained. And this would have been open if delay for periods much shorter than twenty years had occurred.
It is, I think, unnecessary to discuss the exceptions which arise in cases where there has been fugitation after citation on a libel, or cases in which a plea of non valens agere is open. The latter plea (except in. the special case of minors, where it has its origin in statute law) is based. simply on equity, on the ground that "no man can be held to abandon aright by abstaining from an act which he has no capacity to perform, or which is of no avail if performed" (Bell's Prin., (10th ed.) sec. 627), but it is still, minority apart, a somewhat unsettled question as to what special cases admit of the plea (Bell's Prin., (10th ed.) sec. 2023; Ersk. Inst. III. vii. 27). Both these matters, however, belong to the chapter of law concerned with the idea of the interruption of prescription, and subsume that prescription applies. They have accordingly no immediate bearing on the question at issue.
The question does appear to me to be to-day one of academic rather than of real practical importance, but as it falls to be now decided, thee answer should, in my opinion, be in the negative.
In the view which I take of Macgregor's case the question of whether it is within the competency of the Court to overrule that decision does not arise, and I desire to reserve my opinion upon it.
In the case of Macgregor the crime charged was that of murder, and the act was alleged to have been committed in,1748, or somee twenty-five years before the date of prosecution. The report narrates that, after reading the indictment, counsel for the panel represented that no proceedings could be taken thereon; and founded this plea onn a claim that the crime, being dated in 1748, "was therefore prescribed by the elapse of more than twenty years." The report bears that the parties' procurators were then heard at great length upon this plea, and further bears that written informations were ordered by the Court. In the written information for the Lord Advocate, it is clearly recognised, in the very forefront of that document, that the plea taken in defence was a plea founded on the vicennial prescription of crimes. To this plea it was answered, and this was the only answer, that no vicennial prescription of crimes was known or established in the law of Scotland. With, these informations before them the Court, on advising them, sustained the defence and dismissed the indictment. It appears to me to be luce clarius that, when pronouncing this interlocutor, the Court gave solemn and judicial recognition to the vicennial prescription of crime as part of our law. From the contemporary and later commentaries on the decision to which we were referred at the debate, it is in any event clear that, until to-day, no other view, has been proponed as explaining the decision.
In the course of the hearing of this appeal it was suggested, under reference to certain observations by the learned judges as included in the fragmentary longhand report of the case, that the opinions they had delivered would be more consistent with a decision sustaining a plea in exculpation on the ground of some personal exception than with a decision on a plea excluding trial in respect that the right, to prosecute had prescribed. I am not prepared to review an unequivocal pronouncement by the Court upon an argument alleging any such inconsistency between the decision of the case and the train of deliberation which is recorded, I assume without revisals, as having led to the Court's pronouncement. When a decision has taken rank as an authority, it falls to be applied or distinguished or even in appropriate cases to be overruled; but never in any circumstances is it open to be retried. I find an additional reason for refusing to give effect to this suggestion—that bar and not prescription was affirmed—in the fact that, if the suggestion should be accepted, the result would render the decision open to a patent exception of incompetency. Prescription, being a question of law, is for determination by the Court before the trial, and upon this view was properly determined by the Court. Personal exception or personal bar, on the other hand, is always dependent on questions of fact which are for determination by the jury. If the Court indeed stopped the trial in order to give effect at that stage to a plea in bar, such a decision would disclose an ultra vires act, and must have proceeded upon an unwarranted usurpation of jurisdiction.
Accepting the decision accordingly as what it expressly bears to be, a decision sustaining a defence founded, and founded only, on prescription, I note further that the decision appears to have been accepted by the entire profession as regulating practice with complete uniformity for more than one hundred and fifty years. I regard this uniformity as none the less significant because it proceeds upon a train of uninterrupted negative, instead of positive, evidences. No other indication of the effect of the decision upon practice could be looked for, seeing that succeeding Lord Advocates would scarcely have taken occasion to retest the law by bringing a series of prosecutions destined to prove abortive. While dealing with practice I may add that, apart from the cases of James Wilson in 1649, and Nan Brucein 1670, in which cases the plea does not appear to, have been taken, there has been as regards offences other than crimina continuaan almost uniform absence of proceedings for the prosecution of crime in Scotland after the lapse of twenty years from the commission of any single and non-continuing offence.
It was argued that the prescriptive limitations known to our law would all of them be found to-day to be dependent on statutory enactment. I am not prepared, however, to admit that such enactment is the only competent origin of the judicial recognition of a prescriptive limitation. I prefer the view, which is developed by a very learned lawyer under reference to Mackenzie, Stair and Bankton, in the written information for the defence in the case of Macgregor, that some at least of the present statutory enactments regulating the prescriptive limitation may rather be supposed to have declared than to have innovated upon the common law. A prescriptive limitation, being dependent and solely dependent on the element of the lapse of time, may indeed be regarded as a typical crystallisation of some judicial equity which, before such a prescription had been recognised as operating alone, had already repeatedly given effect to pleas in defence which were founded on the lapse of time as their principal element. The Scottish system knows no distinction between law and equity; and judges in Scotland, as the law was gradually ascertained in the course of its development, may be said to have been principally guided in directing that development according as a proposed doctrine was or was not calculated to ensure the joint operation of both these elements of their juridical science. In 1773, when an undetermined question came up for the first time for formal consideration, I can think of no guide towards clarity and propriety of legal thinking which would more inevitably have been consulted than the Corpus Juris of the Civil Law. It would not require an extended search of the contemporary records in Morison to show that, in those days, resort to that system of law was sanctioned by the regular practice of our Courts; and, indeed, in the case of Macgregor itself, the learned judges make it clear that they were influenced in arriving at their decision by the fact (as they accepted it) that a vicennial prescription of crimes, other than those separately dealt with as prescribing in a shorter period, formed part of the law of Rome. In accepting that view of the Roman law as a postulate in. their deliberations, I do not doubt that the learned judges were right. Notwithstanding the ingenuity of the comment in the written information for the Lord Advocate in the case of Macgregor, the critical passage upon which the question turned does not appear to me to be ambiguous. I would, moreover, be slow to disregard the pronouncement of Mommsen.
If then this vicennial exception indeed formed part of the law of Rome, that, in my opinion, afforded in 1773 a solid foundation in authority upon which to base a development of the law of Scotland. The limited resort to the law of Rome which, as noted by Lord Dunedin, would now appear to be open to Scottish lawyers—see Cantiere San Rocco  AC 226 , at p. 123—would afford an entirely misleading measure of the faculty of resort to that law which was open to exercise by the Court in the last quarter of the eighteenth century. Erskine, whose Institute was first published just about this period, and whose authority on such a question has not yet been questioned, may usefully be consulted—see Inst. I. i. 41, sub fine. I accordingly do not doubt that the prescription of crimes which in 1773 was judicially recognised as part of the law of Scotland or was then introduced into that law was, as regards the fulfilment of its period, measured (and quite appropriately measured) by the vicennial prescription of the law of Rome. Nor do I hesitate to reach this conclusion merely because the verbal reference to the vicennial prescription which was made by the Lord Advocate as prosecutor in his written information was not in terms repeated by the judges in their opinions as these have been somewhat fragmentarily recorded. Although in cases of competition between different systems of law such a prescription falls to be applied in accordance with the law of the forum—Don v. Lippman, the prescription as so applied is part of the law of evidence and, as such, is, in my opinion, no more ambulatory or dependent on the pleasure of the Court than are other general rules of law. In defect of argument, I must decline to consider whether it could be maintained that prescription does not run against the Crown.
But the recognition of a prescription does not conclude the question raised in this appeal. The legal effect of lapse of time, even where recognised to be operative per se, has not always been regarded as operating without limit or restriction. The interruption of the flow of the period in respect of countervailing equities is equally familiar. The decision in the case of Macgregorproceeded manifestly on the view that the fact of the commission of the crime had been notorious ab initio—see Hume, vol. ii., p.136. The Court was accordingly careful in the interlocutor to exclude from the period of the vicennial flow in similar cases any period during which the panel should have thwarted the prosecutor by withdrawing from the realm, or during which the prosecutor should have disabled the panel from invoking the law of his domicile by having obtained sentence of fugitation with consequent outlawry. In a case in which (as in the case of Macgregor) the crime had been notorious, these were the only exceptions with which it was requisite to deal. An interlocutor is not designed to serve the purposes of a text-book, and does not profess to frame a code. The recognition in a particular interlocutor of certain exceptions to the operation of prescription is accordingly not a limitation, but is indeed a warrant for the recognition in other cases of the operation of other appropriate interruptions. In the present case I understand that the bigamy (as might so easily be the case) remained latent for many years, and that it was first discovered as a continuing offence, or, in any event, as a continuing fact, shortly before the charge was made. In such a case there would have been no place for fugitation or outlawry, as these exceptions operated in 1773. There is, however, place, and urgent place, for the equitable exception of such part of the vicennial period (and more especially in so far as the panel has been active in influencing the result) as may have passed before the prosecutor has had an opportunity of ascertaining that any crime has been committed. This equitable exception, which is represented in other branches of the law of prescription more generally by the doctrine of non valens agere, and more particularly by the exception of minorities in the statute of 1772, appears to me emphatically to deserve to have its place in this further application of the law of exception against resort to Courts of criminal justice as a consequence only of lapse of time. Before the exception can apply there must have been not only the occurrence but also the recognition of the occurrence of a criminal event. Pending the disclosure that a crime has been committed, there is no jus agendi on the part of the prosecutor. De jureno less than de facto, non valet agere. It is only when the guilt attending an event has ceased to be latent that there is opportunity for the prescription of a crime. A death from enteritis only becomes cognisable in this connexion when (it may be after exhumation) arsenic has been discovered in the tissues of the victim. In my opinion the case of Macgregor supports rather than excludes the recognition of such an exception as part of the proper development of this branch of the law. I am accordingly of opinion that, while the vicennial prescription of crimes must be accepted under concluded authority as forming part of the law of Scotland, that authority itself requires a recognition of the limits within which the doctrine is to be allowed to operate; and that, on a proper recognition of these limits, the plea for the defence was in the present case ill-founded, and was properly repelled. I may add that I do not regard the exception as withdrawing the substance of the rule as the rule is entitled to operate, and that I arrive at the conclusion I have formulated without regret; for, on the question of expediency, I cannot propose a better test than that proposed by Maclaurin, viz., "That the mind of a murderer ought never to be quieted."
In our view, therefore, the question argued in this appeal is foreclosed by authority. We are unable to read the decision in the case of Macgregor in 1773 otherwise than as a clear decision that the law of Scotland, adopting a rule ascertained by the whole judges to be a rule of the Roman law, recognises a prescription of twenty years in relation to the title to prosecute for crime. The limitation by effluxion of time operates, their Lordships said, equally against private and public prosecutors. It was in a question with a public prosecutor that they so decided. The question was fully argued in that case. The prosecutor explicitly refused to proceed upon any specialty in the circumstances of the case (nay, refused to state what matter in bar he might have been possessed of), and asked for a judgment upon the defence stated, which was—that no proceedings could be had upon the indictment "in respect the crime therein charged is said to have been committed so far back as the year 1747, and therefore is prescribed by the elapse of more than twenty years." The Lords sustained the defence and dismissed the indictment. No doubt they discussed in their opinions, as preserved for us by Maclaurin in somewhat shortened form, both the question of whether a prescription of the title to prosecute crime was desirable, and the question of whether it formed part of the law of Scotland. But in our view they all recognised and decided that it was a positive rule of Scots law. We have had an opportunity of reading the opinions of Lord Hunter and Lord Moncrieff, and we concur in the reasons given by them for coming to that conclusion.
In holding that the Roman law recognised a vicennial prescription of the title to prosecute crime, the Court in Macgregor'scase was in harmony, with the view of modern civilians, who have the advantage of much: fuller material for the ascertainment of the law of Rome than was then available. In particular it is supported by the great authority of Mommsen. Voet in his Commentary on the Pandects says:
"As regards, the criminal trial for injury (as in the instance of a libellus famosus) it must be laid down that they are limited by the lapse of a period of twenty years; for it is a well-known fact that the limitation of time for the institution of those criminal proceedings for which shorter periods of prescription are not expressly provided is twenty years after the commission of the offence"
—Voet, Book XLVII., tit. x., sec. 21 (trans. De Villiers, 1899).
To the citation of opinions of our own writers on this subject may be added that of Lord Mackenzie, who in his studies in Roman Law (7th ed. p. 420), says:
"By the Roman law liability for crimes was extinguished … by prescription after the lapse of twenty years without accusation, and, in particular crimes, after a much shorter period fixed by law."
We might also refer to the opinion of an Irish jurist and civilian who wrote not long after Macgregor's case:
"One protection of the criminal merits particular attention; that arising from prescription or length of time. For various crimes there were various terms of limitation, but a lapse of twenty years screened the offender from all prosecution, a regulation which has been imitated by Scotland, and which the civilians insisted was wise, as they reasoned that limitation in criminal cases was as necessary to quiet the minds of men as in civil causes to quiet their possessions; and neither property nor life might be uncertain"
—Browne's View of the Civil Law, 1802, (2nd ed.), p. 429. The author was Professor of Civil Law in Trinity College, Dublin.
If we are right in thinking that the decision in Macgregor's case; recognises as part of the law of Scotland a vicennial prescription applicable to crime, and that it has been uniformly acted upon for 160 years, it is unnecessary to discuss how it came to be part of that law. But we desire to say that we do not assent to the view expressed by certain of your Lordships, that prescriptions cannot be anything but the creation of statute. There is, in our view, ample evidence in our law of a common law doctrine of prescription as affecting civil rights. The most important class of case from which this might be illustrated is that concerned withcatea public right of way. The constitution of such a right depends neither upon statute nor upon any legal fiction of implied grant, but upon the fact of user by the public as matter of right continuously and without interruption for the full period of the long prescription—per Lord Watson in Mann v. Brodie (at p. 57). A right to interrupt the flow of water in a stream by a dam has been held to be established upon possession for a certain period irrespective of title—Hunter and Aikenhead v. Aitken, per Lord Shand at p. 519. Moreover, as your Lordship in the chair has pointed out, there are traces in Hume of limitations shorter than twenty years of the right to prosecute in the case of certain crimes.
The question whether prescription can run against the Crown was not argued in the case of Macgregor, and, again, no argument was proffered upon it in this case. We accordingly do not desire to say more upon it than that the judgment in Macgregor's case impliedly rejects such an argument. The maxim Nullum tempus occurrit regi is not a maxim of, or known to, Roman law, but is a maxim of the English law (where it has only a restricted application—see Broom's Legal Maxims, p. 52), and the decision in the case just quoted seems to indicate that it forms no part of the law of Scotland. But we would call attention to the fact that it is matter of express decision in our Courts that the negative prescription may be pleaded against the Crown—Deans of Chapel Royal and Her Majesty's Advocate v. Johnstone .
The decision in the case of Macgregor was a decision of the whole Court. In our opinion that decision is binding upon this Court, and, even if it were not, we should be of opinion that the rule of law there recognised ought not to be disturbed. That the decision has been interpreted as establishing a vicennial prescription is, we think, the opinion of the weightiest, if not of the whole, of our institutional writers, and it was the opinion expressed by Lord Neaves in the case of Cook. In adding these words, "if not of the whole," we are quite unable to accept Mr Maclaurin as an institutional writer. We can find no instance in which he was ever followed by the Justiciary Court as an authority; and, for the reasons given by Lord Hunter, we do not consider that Lord Kingsburgh's weight of authority was in any true sense against Hume and Alison, whom he cites. We respectfully differ from the view that this Court, sitting in virtue of the provisions of the Criminal Appeal (Scotland) Act, 1926, is vested with wider powers to interpret or alter the law than ordinarily reside in the High Court of Justiciary. The Court of Appeal set up by the 1926 Act is the Justiciary Court. If the decision in the case of Macgregor would otherwise have been binding upon the High Court in the exercise of its original jurisdiction, we are of opinion that it is equally binding upon the High Court sitting in the exercise of the appellate jurisdiction conferred by the statute.
The rule, which in our opinion is one not of procedure but of substantive law, was stated in Macgregor'scase to be subject to the exception that sentence of fugitation should not have passed against the panel. But from certain of the opinions, especially those of Lord Coalston and Lord Kennet, it would appear that it would also be a sufficient answer to the plea that the accused had absconded to avoid arrest. The principle of these exceptions appears to us to be that the freedom from further prosecution effected by lapse of time unprosecuted is not available to be pled by a person who has voluntarily gone beyond the reach of the King's writ by absconding—that is, with intention to evade arrest, going beyond the jurisdiction. It is only a stronger example of the same case that he shall have been fugitated—that is to say, outlawed in consequence of his failure to attend one of the diets of trial to which he has been summoned. In both cases the ratio is the same. Nor do we regard them as truly "exceptions." They flow from the nature of the rule itself.
It has been suggested that it is now open to this Court to introduce another exception resting on a different ground, namely, that the prosecutor was not (before a certain specified date) aware of the commission of the crime. We are of opinion that such an exception does emphatically not arise out of the nature of the rule itself, and that it would go far torender the rule nugatory. Moreover, we are unable to figure to ourselves how in practice it could be applied. A preliminary inquiry as to what was the precise information in the hands of the Procurator-fiscal or Crown counsel in order to ascertain whether enough was known as to the crime and the accused to put upon them the duty of ordering or instituting a prosecution, appears to us to be out of the question in connexion with a criminal charge. No amendment of process is proposed to give effect to it, and we shrink from the ideas (a)that the jury should bear the Crown on this, and judge it remiss; and (b) that, after the jury are empanelled at the second diet, they should wait on possibly till the Court itself hears evidence and gives judgment allowing the prosecution. Moreover, as the rule in question is ex hypothesi an absolute and universal rule as to crimes, the most humble judges trying crime would be called on to judge of the propriety of the Crown's officials' diligence. But, further, we are of opinion that such an exception would be contrary to principle. We know of no prescription in our law the application of which depends upon the knowledge of the party alleging a right to sue. The analogy suggested of non valens agere is in our view not a true analogy. For that exception depends not upon knowledge but upon capacity, and not upon a physical but upon a legal incapacity to sue. Mr Napier in his Commentaries on the Law of Prescription in Scotland (p. 435 et seq.) remarks that the maxim Contra non valentem agere none currit prœscriptio is more frequently quoted than understood, and points out that its correct form is Contra non valentem agere de jure non currit prœscriptio. Moreover, we see no good reason, in expediency or otherwise, even if it stood the test of logic, for introducing such an exception. The greater facilities in modern times for the detection of crime, and the facilities now available for the extradition of accused persons, appear to us to render such an exception unnecessary even if it were desirable, and in our opinion it is not.
The question of whether the prescription should run against the prosecutor notwithstanding his ignorance of the crime has been the subject of consideration in France, where the Code Napoléon provides that action, public or civil, arising out of a crime punishable capitally or by perpetual punishment, or of any other crime punishable by "peine afflictive ou infamante," shall prescribe in ten years from the date when the crime was committed if in the interval no proceedings have been taken—Code d'Instruction Criminelle, Bk. II. tit. VII., cap. V., section 637. There are shorter prescriptions for less serious offences. It has twice been decided by the Cour de Cassation (26th June 1845 and 10th January 1857) that the prescription runs from the day when the crime was committed, although the perpetration of the crime has been concealed—Rivière, Codes Françaises, (26th ed.) 1898, p. 109, Note (i). The same Court has decided that bigamy is not a crimen continuum, and that the prescription runs from the date of the second marriage (5th September 1912; 4th July 1816; 30th December 1919; ibid., Note (m)). We respectfully agree with this view.
We are of opinion that the appeal ought to be sustained.
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