1728 nothing but mutual civilities passing between them; and that the prisoner was a good tempered man, nowise quarrelsome.

.

David Cauty, baillie of Forfar, deposed, that, on the night libelled, when he visited Finhaven in prison, he found him crying to a great extremity, as if he had been distracted, saying, it was the greatest misfortune that could happen him, and that he deserved to be hanged for wounding such a worthy Earl.' Deposed, that the prisoner was drunk; but regretted his misfortune as if he had been sober; and that, he said, his design was against Bridgeton.

Two physicians and two surgeons swore, that Lord Strathmore died of the wound about forty-nine hours after receiving it. Two of them deposed, that his Lordship told them he did not believe the prisoner intended the wound for him; yet there was one circumstance he could not account for, viz. that, after the sword had entered his body, Finhaven pressed it forward till their bodies were close together.'

The Prisoner's Counsel change their ground.

The defence hitherto proposed for the prisoner was, that the circumstances of the case considered, he was not guilty of murder, but of manslaughter. The Court over-ruled the defence; for they found, that the prisoner having, time and place foresaid, wounded the said Earl, of which wound his Lordship died, separatim relevant to infer the pains of law, and repelled the defences proposed. Now the killing was indisputable; therefore, if some other mode of defence was not adopted, the prisoner was gone.

Happily for the prisoner, and happily for the coun- 1728 try, his counsel possessed spirit and abilities equal to the important task. Sprung of a family that seems to give to its descendants an hereditary title to great talents, he had the twofold merit of saving his client, and wrenching the rights of jurymen from the grasp of tyranny.

He repeated and enforced to the jury the arguments stated to the Court, to show that the excessive provocation the prisoner had received, the suddenty of the fact, and the certainty of his having entertained no design to harm the Earl of Strathmore, rendered him excusable in having been the cause of his Lordship's death. He told them with a manly confidence, which conscious right inspired, that they must not be startled at the interlocutor of the Court. He unfolded the purpose and powers of a jury, which was simply, that no person should be subjected to a criminal sentence unless convicted by his peers; and that a jury which convicted without being satisfied of the prisoner's guilt, were themselves guilty of treachery and murder. He explained how the King's counsel, in the reigns of the Royal Brothers, by a mixture of imperious dictate, and sophistical argument, wrenched from weak jurymen, trembling under the rod of power, the privileges vested in them by the constitution: and the acrimony of his remark on those tools of despotism who undermined the privileges of assize, was in part directed at those timid jurymen who had afforded the repeated precedents which were now grounded upon, as forming a change in the law itself. He told them, that, by the stile of verdicts which had lately crept in, a jury by finding

1728 proved, instead of guilty, or not guilty, might sur~ render into the hands of the Court, perhaps also of

the executioner, the life of a fellow-citizen, who they were convinced had killed the deceased in selfdefence: and, in the most pathetic language, he deplored the fate of Cumming, who suffered by the hands of the executioner for a deed which the jury found had been done in self-defence. He maintained, that the judges, by finding the killing at the time libelled relevant, had manifested their opinion upon the point at issue, had testified their resolution, to condemn the prisoner, unless the jury should pronounce a verdict putting it out of their power: that the only object for their deliberation was, whether, in their own mind, the prisoner had committed murder, or whether his guilt was diminished or annihilated by the circumstances of the case. He insisted, that this was the critical moment which was either to rivet the prerogative of the Court over the privileges of a jury, or to emancipate them from the subordination and insignificance into which they had been degraded by a government, which finally was overturned on account of its reiterated attempts to overthrow every species of liberty civil and religious: and that the liberties of their country, the blood of the innocent, and their future peace of mind, depended upon the degree of justice and resolution which they should display in the verdict they were about to pronounce.*

* The late Lord Arniston, counsel for the prisoner, seldom prepared notes for his pleadings. Those which he made out in this cause are preserved; they are extremely short, consisting of

The jury, by plurality of voices,† found the prisoner 1728 NOT GUILTY.

James Stewart in Aucharn, for the Murder of Colin
Campbell of Glenure.

THE prisoner was natural brother to Mr. Stewart 1752

of Ardsheil, whose estate was forfeited on account of his being engaged in the late rebellion. He was brought to trial before the Circuit Court of Justiciary at Inverary, upon the 21st of September, 1752, for the murder of Colin Campbell of Glenure, factor appointed by the Barons of Exchequer upon the forfeited estate of Ardsheil. The murder was perpetrated upon Thursday the 14th of May preceding.

but a few sentences, containing the heads of his argument. The substance, however, of his speech to the jury in defence of the prisoner, is in some measure extant in the memory of his son, the Lord President, who has honoured me with the most useful and obliging communications in the course of this work.

+ The jury divided twelve to three. The following persons found not guilty: Sir Robert Dickson of Inveresk, chancellor of the jury, George Loch of Drylaw, Walter Riddel of Granton, George Warrander of Bruntsfield, Thomas Brown of Bonnington, James Balfour of Pilrig, Robert Dundas, David Inglis, David Baird, Alexander Blackwood, and John Steven, merchants, and James Ker, goldsmith, Edinburgh. The three who dissented, and protested against the verdict, were, John Watson of Muirhouse, George Haliburton of Fordel, clerk to the jury, and John Couts, merchant, Edinburgh.

1752 Mr. Stewart was apprehended upon Saturday the 16th, committed prisoner to Fort-William, and kept there till the day of his trial in such rigorous confinement, that his friends, his wife and children, his agents, and counsel, were for the most part denied access to him. In the precognition that was taken concerning Glenure's murder, the prisoner's wife and children, contrary to the dictates of humanity, and rules of law, were repeatedly examined, upon oath, on every circumstance relative to them urder alledged to have been perpetrated by their husband and father, and their depositions were adduced in evidence against him when he stood trial for his life. Archibald Duke of Argyle, Lord Justice General, with the Lords Elchies and Kilkerran, sat as judges: and in this case alone did a Lord Justice General, and a Lord Advocate, ever make their appearance at a circuit.

The indictment, which is very long, was raised at the instance of Mr. Grant of Prestongrange, his Majesty's Advocate, and of the widow and children of the deceased. Both the prisoner and Allan Breck Stewart were charged in it as guilty of the murder; Allan Breck as the actual murderer, and the prisoner as being art and part, or an accomplice. The former not appearing, sentence of outlawry was pronounced against him; the trial went on against the latter.The indictment endeavoured, by a very long chain of circumstances, to fix down the guilt upon the prisoner. It set forth his having conceived a resentment against the deceased on account of his having, in quality of factor upon the forfeited estate of Ardsheil, turned the prisoner and other tenants out of their possessions: that the prisoner, in repeated