APPENDIX, 43 



his mind all the poflible arguments which were applicable to his 

 caufe, he could, even in his unpremeditated pleadings, difcover 

 at once, and inftantly attach himfelf to fome ftrong 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 exprefhon, he rarely indulged him- 

 felf in what is properly termed declamation. A fine fpecimen 

 of his argumentative powers is to be found ^in the defence for 

 Carnegie of Finhaven, on his indictment 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 utmoft confequence to the fecurity of 

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

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

 nocence of the perfon accufed. 



In Scotland, though General Verdicts appear to have been au- 

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

 had long been cuftomary to confider jurymen as tied down to 

 determine {imply, whether the facts in the libel were proved or 

 not proved. This change from the ancient practice 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 ftrong a meafure, and would have been found of diffi- 

 cult accomplifhment j the former was of eafier attainment, and 

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

 appearances, and for the fhew 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 facts, was compelled to furrender into the hands 



F 2 of 



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



Account of 

 Lord President 

 Dundas. 



