APPENDIX. 43 



his mind all the poflible arguments which were applicable to his 

 caiife, he could, even in his unpremeditated pleadings, difcover D"'"'" 

 at once, and inftantly attach himfelf to fome flrong principle 

 of law on which he built the whole of his reafoning. His 

 eloquence, though as various as the nature of the caufe re- 

 quired, was conftantly fubfervient to his judgment ; and though 

 mafter of all the powers of expreflion, he rarely indulged him- 

 felf in what is properly termed declamation. A fine fpecimen 

 of his argumentative powers is to be foun<:l "in the defence for 

 Carnegie of Finhaven, on his indi<Slment for the murder of 

 the Earl of Strathmore. In that memorable trial, he had not 

 only the merit of faving the life of the prifoner, but of efta- 

 blifhing a point of the utmofl; confequence to the fecurity of 

 life and liberty, the power of a jury, at that time queftioned in 

 this country, of returning a General Verdi5i on the guilt or in- 

 nocence o^Tne perfon accufed. 



In Scotland, though General Verdi£is appear to have been au- 

 thorifed by the moft ancient pradlice of the criminal court, it 

 had long been cuftomary to confider jurymen as tied down to 

 determine fimply, whether the fadls in the libel were proved or 

 not proved. This change from the ancient pra(5lice is fuppofed, 

 with much reafon, to have been introduced into this country in 

 the latter part of the reign of Charles II. ; at a time when we 

 find the King's Advocate ftrenuoufly contending, in his Syjlem 

 of Criminal Law, for the entire abolition of juries *. The latter 

 was too flrong a meafure, and would have been found- of diffi- 

 cult accomplifhment ; the former was of eafier attainment, and 

 anfwered nearly the fame end. The accufed perfon, to fatisfy 

 appearances, and for the (hew of juftice, was ftill to be tried by 

 his peers ; but his guilt or innocence was rarely within their 

 cognifance : that was decided by the laws, or by their interpret- 

 ers, the Judges ; and the jury, tied down to determine folely on 

 the proof of fadls, was compelled to furrender into the hands 



F 2 of 



• Mackenzie Crim. Law of Scotland, tit. 23. 



Accrnnt oT 

 Lord Picfideiil 



