help. the pannel; and the conclusion is, that, from | deavours have been used to deprive him of abler these facts, he is guilty of the crime, and deserves to suffer the pains of law. Now, if the My lords, I dare say, every one who speaks facts charged do not amount to the crime, the in this cause, on whatever side, will begin with conclusion must be false, and the libel irrele- expressing a detestation of the crime now vant. This, I humbly apprehend, is the pre-charged against the pannel; if not in accusing sent case. From the above narration of the facts, and what observations I have already made upon them, I hope your lordships will be of opinion, that the circumstances charged in the libel are so extremely vague and trivial, that they are not sufficient to bring the pannel under so much as a suspicion of being guilty of this horrid crime laid to his charge. If your lordships shall think proper to repel these defences, and to remit the pannel on this indictment to the knowledge of an assize, we humbly hope you will allow us a proof of all facts and circumstances that can tend to his exculpation; particularly of his friendship with Glenure; of Allan Breck's being a deserter, and being in use to put off his French clothes, and put on clothes belonging to the family where he happened to be at the time; of the pannel's having no private conference with him preceding the murder; of the message which the pannel got from him after the murder, bidding him send him a little money to Koalisnacoan, where he was going; and, in general, of all other defences that may occur as necessary to the pannel in the course of his trial. I will conclude, my lords, with a single word to the gentlemen of the jury, that the more flagrant, the more atrocious any crime is, the more clearly and distinctly they will require it to be made out to them: that as the erime is proposed to be fixed upon the pannel by presumptive evidence alone, they will be cautious in distinguishing betwixt such presumptions as are conclusive, and such as are not so; between such presumptions as can arise from no other cause but the pannel's being in a conspiracy to murder Glenure, and such as are more naturally construed to have arisen from other causes. If they find such presumptions, as that they can, before Almighty God, bring in a verdict Guilty, it is their duty to de so, and the law will have its vengeance. But let them have this always in their eye, that better twenty guilty escape, than that one innocent man should suffer death by their verdict. the pannel, yet in this we shall all agree, to condemn the miserable person, whose conscience accuses himself of it; whether he now stands at the bar, or whether he flies from the avenging sword of justice. I must acknowledge, that if the pannel has been guilty of, or accessary to this murder, beyond all controversy it constitutes him one of the greatest criminals that this or any other country can afford. Murder is a heinous crime, whether it is the fate of the eminent or the obscure. But this murder seems to be a complication of all guilt; and as my duty calls me to plead in defence of one labouring under such an accusation, I cannot do it but with the utmost concern. The very mention of such barbarity and iniquity, as was just now rehearsed, could not fail to move every humane breast; but the reading of an indictment, such as we have a little while ago heard, is enough to inspire horror even in the innocent. It is still harder upon me, when I consider the unhappy sufferer in that dreadful scene, which is now to be the subject of trial; one against whose life I should be the last man to excuse the smallest attempt! one whom I knew, whom I regarded, whom I had the honour to be in friendship with his death, had it been common, would have affected me; but his murder afflicts me. I sincerely regret it, for his own sake, for the sake of his friends, for the sake of the poor disconsolate lady, who now weeps over her own widowity, and the orphan state of ber infant children; I regret it for the sake of the whole land, that stands polluted by the cruel shedding of innocent blood; and, in a particular manner, do I regret it for the sake of the Highlands of Scotland, for which I own, from private connexions, I cannot help having a regard, and which I am afraid have, by this unlucky accident, suffered a deep political wound, that it may take time to rub off the effects of; as being able to furnish so eminent an instance of barbarism, in spite of the noble attempt of the legislature, and of all in the administration, to polish and civilize them, to reduce them to the righteous plan of the government of this country, and to a constitutional equality with the rest of the united kingdom. Mr. Robert Mackintosh, for the Pannel. My Lord Justice-General, and Lords Commissioners of Justiciary; I appear also to con- My lords, for these reasons do I most heartily tribute my small mite towards the defence of join in deploring this fatal catastrophe. At the this pannel, who has the misfortune to be ac- same time, my lords, the defence I am now to cused of a crime, which every body 'must ad- plead, fixes my attention upon a more agreemit to be of the deepest dye; and, as laid in able prospect; that of innocence, and not of the indictment, attended with the most aggra-guilt; and the importance of the issue justly vating circumstances; and I do it, my lords, challenges my most sanguine efforts. not out of an opinion of my being in any de- have before us the life and fortune of a man, a gree equal to the task, a share of which I have countryman, I believe an innocent, though acundertaken; but rather that a poor man, stand-cused one: I must believe him innocent, not only ing trial for his life, may not be absolutely as I am yet ignorant of any proof that I think destitute of assistance, when uncommon en- should convict him, but more, as I have not We been able, in a very strict investigation, to discover from himself any symptom of guilt; and as the persuasion of innocence may give courage to defend, so I persuade myself I need make no apology, if I am able to speak with that earnestness and freedom that becomes the consequence of what is at stake. And, on the other hand, I hope to be excused, if I fail in that accuracy and distinctness, which I could wish to observe, from a just regard to the dignity of this high court, and to the presence of a crowded, and I dare say, an interested audience, who are ready to swallow with greediness every word that shall be spoke on this subject. My lords, before I go farther, I cannot omit observing, what I am extremely sensible of, and that is, the disadvantages under which this pannel enters upon a trial for himself, and all that is dear to him in this world, for what concerns all that is precious to him in another; disadvantages which we share in, who appear as his counsel. But when I say so, I would not be understood as meaning to insinuate any reflexion upon the conduct of the honourable gentleman who prosecutes for his majesty he does the duty of his office, the duty which he owes to his king and country; and gave an early proof in this matter of that candour for which he is remarkable on all occasions, by turning a general indictment into a special and circumstantiate charge. But, to use his own words, when hindered from doing what his humane inclination equally led him to, his lordship is here but half a pursuer: there are others concerned in carrying on this prosecution; and I am afraid their just resentment of a murder, which they had all the reason in the world to be zealous in searching out the committers of, has made them unguarded to measures which I should be sorry to see retaliate; and pushed them beyond the bounds of what I would call humanity, perhaps think justice; and yet, while I cannot approve of their conduct, I am loth, if I could avoid it, to be severe against it, not knowing, whatever I now think, how far rage might have got the ascendant of reason with myself, if in their place. One thing is obvious, that though it is true, that the justice of our law agrees with the common law of reason, in presuming every man innocent till he is proved guilty, yet we have reason to fear we come here oppressed with prejudice, to create and propagate which, against this unfortunate pannel, no pains, no expence has been spared, with manifest intent to prejudge him in his trial; and in this have some people been wise in their generation; well knowing, that as presumed innocence is a great advantage in a trial, so believed guilt is no small step to conviction, and often anticipates the just foundations of it, which can arise only in proof. When I see, and am sorry for this, my lords, in one view, yet do 1 most rejoice at it in another, as it shews the weakness of the cause that has needed such artificial feet to support it, even in the beginning, and which being removed, as I hope they soon will be, the superstructure built upon the false basis will also fail. There are other things too, which the law of the land would intitle us to complain of, and which a few years more experience might make it better become me to exclann against: a close confinement of the paunel, contrary to the sacred charter of liberty, which this nation boasts of; and which illegal proceeding was only removed of late by the interposition of this Court; imprisonment of witnesses to be adduced against him, where none had access to them but the private prosecutors, or their agents, removed at a distance from the check of my Lord Advocate's superintendance, whose office, though it intitles him to investigate the proof of public offences, yet renders a privilege, dangerous to be indulged to every injured party, safe in his hands. The pannel has had but short warning to prepare for his trial, though he was at great distance from the capital, from which only be could have counsel and assistance: and it is but very lately since his counsel had access to see himself; not for some time after we were in this place. These things I only mention, as my brother has already fully opened them ; and I mention them, my lords, as what may have some weight with the jury, who are to try the pannel, (and whom I now consider myself as addressing) to remove the prejudices that are so naturally, though insensibly, imbibed without doors, and which especially arise in the mind from the unavoidable, though inconve nient situation, in which a supposed criminal must appear, even when as yet the law presumes him not guilty, loaded with irons, and surrounded with guards. My lords, I do not mention, as a disadvantage to the pannel, the place of his trial. I think it can be none: there are reasons why this place may be more proper for the trial than any other, whether the pannel be guilty or innocent; that he may be either acquit or condemned, and justice may take place where the crime was committed. And one advantage the pannel most surely profits of by the trial being here, viz. the presence of the prince who presides in it, and who, in a special manner, is the father of his own country, as he justly appears to be of this part of the kingdom. This of itself is more than sufficient to balance a disadvantage, were it possible to suppose any could arise from the opportunity that affords it. At the same time, I would, with great deference, observe (and I hope I'may do it without giving offence, which I am sure I do not mean to do), that there may be something in this, which calls upon the jury to be cautious; and I hope an attention to it will have the effect to make them rather lean to the favourable side, than be disposed to make any stretch against the pannel. It is the privilege of the subjects of this country to be tried by one another: yet, when we have this advantage, and it is an inestimable one, still it is to be tried by men of like passions, i. e. like infirmities with ourselves; and all men are more or less susceptible of prejudice. I hope, however, I may safely trust to the honour of such a jury as will be put upon the pannel's trial, that they will, if any such there are, lay aside all regard to country reliances or connexions, divest themselves of all prejudices, and sit down to the trial with a candid resolution to yield only to the force of truth; desiring rather to see innocence thereby vindicated, than guilt, unwishedfor guilt condemned, and inclined to give the cast of favour on the favourable side, unless the proof shall come out very clear and convincing. Trials in this country are open and public, and the eyes of the world are a check both upon judges and jury; and as this murder has been, and justly, the subject of an extended speculation, so will the trial for it: I hope, be the issue of it what it will, it shall be so conducted, as to reflect nothing on any concerned in it; and, I shall only add, that, could I suspect that the law of my country, or the court, could put any on the pannel's jury, who would overlook their obligations to impartiality, which I dare say is impossible in this present case, I would put such in mind, that, if they have no regard to the pannel, they should regard themselves; for, as the old philosopher said, Nobody is happy before he die; what is the pannel's fate today, may be our's to-morrow, and what is proof against him, may be against another long after this. Every trial, therefore, though it presently affects only those who are under it, is in a material sense the cause of those who do try, of the public, and of posterity. My lords, having said so much in general, (and I think I could say no less) it should be my province now to state what has occurred to me for the defence of the pannel against this indictment. And here, my lords, we have a most barbarous, indeed a shocking murder, charged against two persons; but with this material distinction between the two, that the one is by the indictment charged as the actual murderer, by himself; no mortal along with him at the perpetration of it; and the other is only alledged accessary thereto, as having been in a previous conspiracy with the murderer: and the pannel now to be tried, is this conspirator. My lords, I do not distinctly see, from the indictment as laid against Breck, what proof there will be of his being the actual murderer. I should at present imagine, from the way in which the story is told, that there can be no proof, at least no direct, no satisfying proof. But be that as it will, one thing I am sure of, from the nature of the thing; it is impossible there can be any direct proof of a conspiracy, to which only the two persons accused were privy and therefore it is, we see my lord advocate has very properly, and, I think, very candidly, as I said before, specified his charge of accession against the pannel, into these circumstances, from which his lordship infers the accession or conspiracy. And it is upon the relevancy, or import of these circumstances, that I fall to speak to your lordships. For it is not to be imagined, that, by disputing the relevancy of the indictment, we mean to call in There is only one thing which I must submit to your lordships, and which I shall but mention, as my brother, who opened the defence, has already offered it, and your lordships may hear more of it in the reply to my lord advocate; and that is, the prejudicial question how far the pannel, charged with an accession to the crime of another, can be tried for it, till the principal is first discussed. Your lordships well know, that an accessary does of its own nature follow a principal; till, then, there be a principal, there can be no accessary, and the principal being removed, the accessary is also taken away; and therefore, till the one is con leged against the pannel, which connects with the actual murder. And as for the circumstance of the pannel's sending the money to a certain place, where as would appear from the indictment, he had no access to know that Breck was; as to that, I say, and some ones of lesser moment, which I likewise take notice of, I take them to be designed as a key to explain into a connexion with the murder, the two facts already mentioned, by shewing a previous knowledge of the murder, which the facts themselves do not import, and yet without which they have no weight. Upon these two cardinal facts, then, attempted to be supported by the other lesser circumstances, in my apprehension, lies the burden of the prosecutors charge. And I will beg leave to say a few words to each of them. But, before particulars, give me leave, my lords, as shortly as I can, to make an observation or two upon the nature of proof in general. victed, there is no room for trying the other; in like manner as the principal being acquit, the accomplices cannot be condemned. That the law stood formerly so, is most certain; as appears from many authorities, which I forbear citing. How far this is altered by the act of parliament, introducing the law of art and part, will be subject to the judgment of the court, where I leave it. But I must at least inform the jury, that, however the law stands in this matter, it is undoubtedly certain, that they, or any jury, cannot convict an accessary, but upon this supposition, that, if the principal were under trial before them they would convict him, "Quando proceditur contra aliquem tanquam quod præstiterit auxilium, debet constare principalem deliquisse." And the gentlemen of the jury will take heed to this, that if they shall find cause to convict the pannel upon the evidence that shall be brought before them, they do, in the most express manner, declare their opinion, that Breck, and no other, was And, my lords, I think it is a common, but a the murderer of Glenure. Nor must they well-founded maxim, derived from better auhold sufficient for this purpose the presumptive thority than mine, that, in proportion to the conviction, which arises from his flying justice, greatness of a crime, ought the strength of the and being fugitate and outlawed by the sen- proof of it to be. The higher a crime is, and tence we heard this day pronounced. The the deeper it draws in its consequences, so law says expressly, That no fugitation of a much the clearer and stronger ought the eviprincipal is to be held for a conviction against dence of it to be and indeed justly; for, I an accessary; and indeed, why should it? for hope, bad as men are, corrupted as human the confession of the principal, were he now nature is, it is not come that length, that vice here, would not be evidence against the pannel, is natural to mankind. I rather persuade myand much less must his absence or ruu-away self, that it costs some pains, by rooted habits, have that effect. So that the jury must here to extinguish the sparks of reason, which are consider, that, before they can convict the pan- the seeds of virtue. Here then, my lords, is a nel, they must have such evidence against crime of so enormous a size, that it is almost Breck, as would condemn him, were he on too big to believe; murder, deliberate murder, trial. And so, leaving Mr. Breck till we see assassination in face of the sun, in defiance of what proof comes out against him, the question all law and government. What proof should is at present, upon what is the charge of the then be expected of so monstrous an offence? pannel's guilt founded? or, are the circum-That one should sit down deliberately and stances alledged in the indictment sufficient to support the accusation of art and part against the pannel? And here, my lords, I do not propose to entertain your lordships with a nice disquisition on the law of art and part; suffer me only, in three words, to mention that, so far as I can comprehend by the law of Scotland, art and part is inferred from circumstances antecedent to, concomitant with, or subsequent upon the actual commission of a crime. Now, my lords, when I look to the indictment before me, I am able only to perceive two facts condescended upon, from which the pannel's accession to this murder is to be inferred; the clothes alleged to be furnished by the pannel to Breck before the murder, as a disguise to commit it in, and the money sent him after the action, to enable him to go off the country. These, I say, my lords, are, so far as it appears to me, the only two considerable circumstances to infer accession: for your lordships will observe, there is an ab. solute blank as to the principal period in which | guilt ought to appear, the actual commission of the crime; at least, so far as I can gather, there is not one concomitant circumstance al coolly to form a conspiracy of bereaving another of his life, in so horrid and barbarous a manner; what degree of flagitiosity must not be proved to suppose one capable of it? Sure, though many circumstances be brought to establish a presumption of guilt, yet to believe it is no easy matter. Must it then depend upon guess work? Is it to be tried upon questionable evidence? or, is a jury to be persuaded into it by art? No, there must be the most palpable and incontestible proof'; and, unless the evidence is full and plain, no credit, I will venture to say, can be given to so black, so detestable, and so unnatural a charge. It would almost require to see the blood of the innocent reeking on the hands of the guilty. But what have we here? Presumptions built upon presumptions; suspicions, and these suspicious supported by others; suspicions without proof, nay disproved. We have first to get over the belly of a good fair character, which this pannel had the happiness to possess, a blameless, moral life in private.* And, should he all at once have * There is a tradition that here the Lord Justice General interrupted Mr. Mackintosh, deviated so far from the paths of virtue? Could he so suddenly shake off a regard to all that is sacred? I should have expected to have heard urged against this pannel, the abandoned dissoluteness of his manners, the barbarity of his nature, that his life was one continued course of wickedness; in short, every part of his character devoted to murder; that he was one inured to the practice of it, and distinguished by the most consummated guilt: yet not one of these circumstances so much as alleged in all this aggravated charge; and for a good reason, viz. That the contrary is well known to be true by the prosecutors themselves. Next, my lords, when we seek for a cause of such a malice as could produce this crime, we find a cause that never subsisted; a cause noways adequate to the effect: resentment; for what? For accepting an office which somebody must have got; and none could have made a more favor. able use of, for the friends of the pannel, than this gentleman did: (for which reason they will be proved to have been in good friendship long after that ;) resentment for turning out some tenants from an estate forfeit to the crown; irrecoverably lost to the family with which the pannel was connected. This is the foundation; and what is the superstructure? Of a piece with it truly. Why, the murderer had on a coat of the pannel's when he committed the brutal action, and got money from him after it. Here is the proof; a circumstantiate proof it is called. My lords, I have no objection to circumstantiate proof; what the law calls argumentative evidence. I do admit, that it is a legal and proper sort of evidence, as much as direct proof by witnesses. Every thing is legal evidence, that is such real and certain proof as ought, in natural justice and equity, to be received: for what is evidence of a fact, but such testimony as the nature of the case requires to induce a moral certainty of the thing testified? And an argument is nothing else than what gives faith or credit to a thing in itself doubtful, which perfectly agrees with the law definition of proof or proving, which is fidem facere. I will admit further, that circumstantiate evidence, when clear, is perhaps the most satisfying and convincing proof of any. Circumstances are inflexible proofs: they will not bend to the inclination of parties: witnesses may be mistaken, may be corrupted: things can be neither; and therefore, so far as they go, deserve unlimited, unreserved faith. But then, my lords, the circumstances must be clear, certain, and well connected: no blank in the chain, else all goes for nothing: the urging with much vehemence, that a fair character and blameless moral life could not belong to any man who had been in rebellion against his king; and that Mr. Mackintosh in the warmth of the moment represented to his grace, that it might be very difficult to say how many of the Argyles had been in rebellion against their kings. See a note to the deposition of Donald Campbell of Airds, in the Proof. VOL. XIX. arguments must be perspicuous, nervous, and conclusive. The same law that has said, "crimina posse probari, vel testibus, vel documentis aut indiciis," as it requires "idonei testes," so does it "documenta apertissima, indicia indubitata, luce meridianâ clariora." We must therefore, my lords, carefully distinguish between circumstantiate or argumentative evidence, and bare presumption or even probability; much more suspicion and conjecture, with all which it has a near affinity, and is therefore apt to be confounded with them; for they all depend on facts or circumstances. But, says our great criminal lawyer, sir George Mackenzie, crimes cannot be proved by presumptions; for presumptions are only founded on verisimilitude, and what may be, may not be; whereas all probations, especially in criminals, should be infallible and certain; "conclusio semper debet sequi debiliorem partem:" If otherways, says he, judges (or juries now) would be arbitrary. Probabilities, again, says a good reasoner, twenty of them allowed to be such, are not equal to one matter of fact well attested: they may strengthen the fact, but cannot supply it: they cannot be evidence themselves, because one probability may be set against another, and so mutually destroy the force of each other: and as for suspicions and conjectures, who will pretend a right to indulge them, where life and fortune are concerned? Guarding then, my lords, against these things which are ready to mislead, let us, and let the jury, my lords, examine cautiously and candidly the circumstances I mentioned, on which the burden of the indictment lies: let us see if they approach a proof; if they do not more participate of the nature hardly of presumption, not at all probability, rather suspicion and conjecture; or if they amount to a solid and substantial circumstantiate or argumentative. evidence. My lords, I mentioned first the clothes: and permit me, my lords, once more in general to observe upon this circumstance, as well as the others that follow, that I do, with great submission, apprehend they derive their whole weight from a belief of the pannel's guilt, which it is indeed very natural to entertain from such circumstances as he now appears in. The indictment sets out with laying down this crime in the most ugly colours, as indeed it justly does deserve; and then subsumes, that the pannel is guilty of it; and I venture to say, that, take away the influence which too easy a credit to this first position gives to what comes after, all the circumstances brought to support the charge will in a great measure lose their force; so that the assertion of the charge is the very thing which supports the circumstances adduced to prove it, than which nothing can be a more false circle of probation. Prejudice, my lords, is like a jaundiced eye, or a magnifying glass. the first, every thing it looks at appears yellow; and the last to appearance, increases D To |