the prisoner did three times successively make the 1695 deceased be held up, and severely lashed him on the back and hips, and in rage and fury, did drag him 'from his desk, and did beat him with his hand upon the head and back, with heavy and sore strokes, ' and after he was out of his hands he immediately 'died.' That, after the boy's death, the side of his head was swelled, and there were livid marks on it; and the mark of many stripes on his legs and thighs. Although these circumstances, as well as a rattling noise in his breast upon the third beating, and a good quantity of blood being found under his body after death, (which had issued from the stripes on his back,) afford complete conviction* that he died of the beating; yet the lenity of the Court in this instance seemed to increase with the barbarity of the criminal, for they only sentenced him-to receive seven stripes, and to be banished Scotland for life.t It is obvious, that, from the moment these iniquitous doctrines were acquiesced in, the palladium of liberty was gone. Facts might be charged, of which the guilt, or degree of guilt, depended solely upon the intention which directed them. A fact might be indisputable; yet the intention of the accused might be justifiable, or at least might not amount to the degree of criminality charged in the indictment; yet by this doctrine the jury would be mere cyphers, the Court alone would decide. Facts of the most criminal nature, circumstances trifling or indifferent, might be blended in one indictment; *The body of the deceased was not opened. + Records of Justiciary, January 15th, 16th, 19th, 1700, 1695 and, in such case, a special verdict would leave the prisoner at the mercy of the Court, which it is the grand purpose of the trial by jury to prevent. I have discovered an instance of the Court's actually taking advantage of a circumstance of this sort. In the trial of Captain Douglas, and two other men, for committing a rape on Christian Davidson, the jury found ⚫ the violent ravishing Christian Davidson, or being 'art and part thereof, not proven.' But found, that, on the night libelled, Captain Douglas left, for three quarters of an hour, a company with which he was drinking; and that, on his return, he told the company, when challenged for his absence, ut virginem deftorasset, and shewed his knee dirtied with mud. The Court fined him in 300 merks. There is another case in which the jury made an absolute surrender of their privileges. In the trial of Marion Lawson for child-murder, they found the prisoner not guilty, in respect of no probation;t but, in respect of the presumptions, remit the prisoner to the consideration of the Court. The Court sentenced her to be whipped and banished. In this case of Cumming, there were no circumstances to entitle the Court to pronounce upon the prisoner the poena ordinaria, the ordinary penalty of murder. The verdict of the jury set forth, that some words fell out between the prisoner and the soldiers; but did not find who gave rise to the verbal injury, But, supposing the opprobrious expressions used by the prisoner to have proceeded from mere wanton * Records of Justiciary, 8th, 22d, 23d Feb. 1697. ness, I apprehend it did not entitle three men, with 1695 drawn swords or bayonets, to assault one. And it cannot be maintained, without the height of absurdity, that this one, even after having used insolent language, was to stand tamely and have his throat cut for his impertinence. The jury found that the prisoner, in defending himself, killed the deceased: the Court condemned the prisoner; therefore, the Court condemned a man to be hanged for defending himself. The same judges* who sat on this trial pronounced the dreadful doom on the youth, who atoned with his blood, for entertaining, on religious matters, opinions dissonant from those of the times. How juries came to recover their dignity and im portance, will be seen in the subsequent trial of Carnegie of Finhaven. James Carnegie of Finhaven, for the Murder of Charles Counsel for the Prosecutors, his Majesty's Advocate, &c. Counsel for the Prisoner, Robert Dundas of Arnis- THE prisoner was prosecuted at the instance of 1728 Susanna Countess of Strathmore, relict of the de * With the exception of James Falconer, Lord Phesdo, who sat not on the trial of Aikenhead. See infra Blasphemy, Aikenhead. + Records of Justiciary, 10th July, 1st, 2d, 3d August, 1728. 1728 ceased, of the Honourable James Lyon, his brother, w and nearest lawful heir, and of his Majesty's Advo cate, for the murder of the Earl of Strathmore. It was charged against the prisoner in the indictment,* that, having a causeless ill-will at the deceased Earl of Strathmore, and conceiving deadly malice against him, he, on the 9th day of May preceding, between the hours of eight and nine at night, without the least provocation then given by the Earl, did assault him with a drawn sword, and feloniously murder him, by giving him a thrust with the sword into the belly, and through the intestines, till it came out at his back, whereof he died on the Saturday after; or, at least, that he was guilty art and part of murder, or manslaughter, or one or other of them. Long, learned, and ingenious pleadings, were made on the conclusion of the indictment; the counsel for the pursuers maintaining, that it inferred the pains of death; and those for the prisoner contending, that it inferred but an arbitrary punishment. The Court appointed informations in writing to be lodged on both sides. Substance of the Pursuer's Information. The information for the pursuer relates to the defences stated, viva voce, for the prisoner, and its purpose is to obviate them. It is there contended, that, by the Mosaic law, whoso sheddeth man's blood, * This case is published at large in the State Trials, vol. IX. p. 26. It occupies 35 pages folio. It is also published separately in 131 pages octavo. • by man shall his blood be shed:' that the benefit of 1728 the cities of refuge was only granted where the kill. ing was merely accidental, since it was declared, that he who smites with a throwing stone, or with a ⚫ hand-weapon of wood wherewith a person may die, and he dies, the murderer is surely to be put to ' death:' although the argument is conclusive, that wherever, by the law of Moses, capital punishments are allowed, such punishments are lawful; it is not equally clear, that in those cases where the powers of the law are suspended by the jus asyli, afforded in the cities of refuge, which was established by positive precept, that, in similar cases, in countries where no such privilege is allowed, no such precept established, the punishment should not be capital. That, by the civil law, slaughter, in an affray, was punishable by death, from which neither passion nor provocation exempted, which is clear from it being stated to the Emperor, whether a husband, who, urged by the vehemence of his grief, should kill his wife caught in adultery, be punishable as a murderer, a case which could not have needed a reference, if passion and provocation had mitigated the punish ment. There next follows an elaborate and very lame argument, to prove, that, by the old statute law of Scotland, little distinction was made between premeditated murder, culpable homicide,* and manslaugh * I embrace with great satisfaction this opportunity to mention, that the Court of Justiciary has now solemnly repudiated this absurd and iniquitous doctrine. In the libel at the instance of John and William Stewarts, against Lieutenant George Storey, for Cc |
