| <Westminster Review October 1833>
| < J. H. Burton>
| <Pitcairn's Criminal Trials in Scotland>
| <pb n="332">
| Speculators in constitutional matters have laid down 
| many theories, for explaining on the ground of 
| inherent national propensities, the striking difference 
| which has always existed between the government 
| and legislature of England and those of Scotland, and 
| the extremely distinct spirit which has marked the 
| struggles for liberty in the two nations.  In the 
| discussion there has been more display of words than 
| of wisdom; but it would not be difficult to point out 
| many circumstances from time to time exhibited in 
| the progress of the constitution of Scotland, which, if 
| they cannot be called the causes of these national 
| peculiarities, form at least the prominent evidences of 
| their existence and operation.  All authentic traces 
| which might lead to a knowledge of what had been 
| the method of government in Scotland previously to 
| the full adoption of feudal
| <pb n="333">
| usages by most of the nations in Europe, have been 
| sought for in vain.  Scottish antiquaries have 
| generally attributed this hiatus to the zeal of Edward 
| the First to be put in possession of the title deeds of 
| his new province; but from the remains of his pillage 
| lately brought to light, many have doubted whether 
| any important documents relating to so early a period 
| ever existed to attract this cupidity.  According to the 
| complacent account of the early Scottish chroniclers, 
| <q> </q> was reigned over by an unsullied line of 
| legitimately born monarchs, since the period when 
| Gathelus quarrelling with his father the king of 
| Greece, in a fit of wrath sailed round the world, and 
| took possession of the kingdom of Scotland, more 
| than three centuries before the Christian era.  The 
| country had soon after that period, a regular 
| legislative and executive, road-laws, game-laws, 
| customhouses, tax-offices, and schools of law, 
| medicine, and divinity, all of which attracted high 
| admiration from the ambassadors of Ptolemy 
| Philadelphus sent by him on a diplomatic mission to 
| his learned friend the King of Scots.  A few hard 
| blows from Bishops Stillingfleet and Nicholson, and a 
| still more vehement onset from Father Innes of the 
| Scotch college at Paris, swept away these golden 
| visions, and substituted in their stead a line of kings 
| with very questionable names, and with no colleges, 
| institutions, or constitutional forms of government.  
| The airy palaces thus removed from the vision of the 
| antiquaries, nothing was left behind, but a bare moor 
| with a few <p> "cairns," </p> and those invaluable 
| objects of speculation Druidical circles, to attract their 
| gaze.  The absolute antiquity of the nation of the 
| Scots is not indeed to be doubted; but until the 
| inroads of Saxons and Normans brought with them 
| the respective usages of those people, nothing existed 
| in that orderly shape which can be dignified by the 
| name of a constitution so established and marked out, 
| as to find its way into written memorials, or even into 
| the memory and affections of the people.  The earliest 
| accounts show us the civil-law and the feudal-law 
| combating for supremacy, and each exercising sway 
| in its own department in full vigour and purity, 
| without any opposition from revered customs 
| cherished by the people.  Thus it is evident from the 
| extreme purity of the feudal and civil codes as 
| existing in Scotland, that such systems as the Saxon 
| division into hundreds and tithings, the mutual 
| guarantee, the principles of election, the trial by 
| neighbours, had no early existence in them.  
| Moreover, while
| <pb n="334">
| the growing spirit of feudalism in Scotland received 
| no opposition from popular feeling, neither was it 
| controlled by the power of the kings; and, as in some 
| continental nations, a savage nobility became the 
| efficient rulers.  Robert the Bruce saw the dangerous 
| power of his nobles, and attempted to restrain it, but 
| the attempt was silently crushed whenever its 
| appearance was suspected. James the First of 
| Scotland made many unsuccessful efforts to subject 
| them; but they settled the business in a manner which 
| led other monarchs to hesitate about interference in 
| future.  The power of the law had thus no fixed 
| representative; it was diluted over the surface of the 
| whole country; there were infeudations and 
| sub-infeudations.  The barons in chief held the law, or 
| rather the power, over their vassals; to these last the 
| sub-vassals gave a deputy submission, partly 
| exercised in favour of the vassal of the baron, partly 
| directed to his lord.  It is worthy of remark, that 
| immediately after the statute <f> Quia emptores 
| terrarum </f> was passed in England, an act to effect 
| the same purpose, and indeed word for word the same, 
| was adopted by the parliament of Scotland, but has 
| remained from the first a dead letter, and has 
| according to the custom of Scotland been virtually 
| repealed by desuetude.  Many circumstances 
| cherished this system of multifarious tyranny in 
| Scotland.  The condition of a great part of the country 
| was merely pastoral; wool and hides were the only 
| commodities of sufficient value, or sufficiently 
| plentiful, to become articles of commerce.  These fell 
| in all cases to the lord of the soil; and the individuals 
| who lived on it and cultivated such patches of land as 
| provided them with the necessaries of existence, were 
| consequently his slaves, not bargaining with him as 
| tenant with landlord, but fed from his hand, and 
| consequently obliged to perform his will.  The 
| country was for centuries a besieged garrison, always 
| acting on the defensive, though sometimes sallying 
| forth to sack the possessions of their rich and 
| relentless assailants the English.  The tenantry were 
| taught to maraud under the protection of military 
| leaders, who were likewise their civil judges in time 
| of peace.  The towns were walled in, and their 
| inhabitants were likewise with few exceptions 
| compelled to submit themselves to the protection and 
| tyranny of some powerful neighbouring baron.  The 
| perpetual presence of a foreign enemy thus prevented 
| the people from thinking of enemies at home; a close 
| band of subjection was knit between them and their 
| immediate leaders; and the only domestic struggles in 
| which they were engaged, were between these leaders 
| and the king, or among the leaders themselves 
| contending for aggrandizement.  In a nation so 
| situated, it may be said that
| <pb n="335">
| the municipal laws are made for the rich, and the 
| criminal for the poor.  The agrarian vassals had few 
| rights, about which the legislature could trouble itself; 
| but they were in the habit of committing divers 
| offences, to which it paid particular attention.  The 
| civil law of Scotland has been frequently admired for 
| the simplicity and compactness of its fabric, and the 
| purity of many of its principles, ~~ at least their 
| theoretic purity, as exhibited in the works of the 
| institutional writers.  It has indeed had many valuable 
| peculiarities, which are its best ornaments at the 
| present day.  The system of Local Courts held by 
| responsible professional men; the registration of 
| landed property, acting so effectually as never to 
| make a purchase or security doubtful, if ordinary care 
| is taken in preparing the titles; the impossibility of 
| persecution being perpetrated by arrests in  
| <hi rend="italic"> mesne process; </hi> and the general 
| simplicity of the laws of debtor and creditor, are all 
| worthy of applause; while it must at the same time be 
| admitted that these refinements on the principles of 
| the Roman and feudal laws originated in a manner 
| which rendered them long useless, and still damps 
| their efficacy.  They had their origin in the 
| speculations of the Judges, who had power to make 
| the law to suit any given case, and unmake it to suit 
| any other.  They were the creatures in short of the 
| perfection of <hi rend="italic"> equitable </hi> 
| power, ~~ <q> </q>, ~~ first invented at the period 
| when the civil and feudal laws were acknowledged as 
| <q> </q>, ~~ afterwards regulated and interpreted by 
| the Judges, and seldom effectually interfered with by 
| the legislature, whose acts indeed, few and scattered, 
| were still liable to be dispensed with by the Judges, 
| on the plea of their having fallen out of usage, ~~ of 
| their not being <q> </q>.  But the criminal law of 
| Scotland, as its details are exhibited in the present 
| volumes, did not even exhibit the outward theoretic 
| purity of the Institute and Pandects.  The whole was a 
| mass in which tyranny might feed to excess, 
| whenever its appetite was excited.  But in such a 
| country as has been described, both systems, ~~ the 
| civil with its abstract purity, and the criminal with its 
| distortions, ~~ were not feeble for free exercise.  The 
| law was not a power which held all from the highest 
| to the lowest within its protecting and avenging 
| influence; it was a mighty and dangerous weapon, and 
| like a weapon was used for the benefit of those who 
| could hold and wield it, and for the terror and 
| destruction of those against whom it might be 
| employed.  Almost all the Judges held their offices as 
| hereditary.  Jurisdiction, like an estate, descended 
| from father to son, a valued and envied family
| <pb n="336">
| possession.  The baron when tired of other warfare, 
| fought battles with their jurisdictions.  They gained 
| money to themselves and their relations by their 
| jurisdictions.  When a man made an appeal to that law 
| which was dispensed by his uncle or tenth cousin, it 
| was easy in its purest parts to find a fiction for the 
| defence or aggrandizement of relations, whom it is a 
| man's natural duty to assist.  A person who could use 
| the power of life and death and civil jurisdiction, as 
| freely as he could the helmet he inherited from his 
| grandfather, was not likely to have what would now 
| be termed <p> "a moral respect" </p> for the uses to 
| which he applied his power; and every Scotch Judge, 
| up to nearly the middle of the last century, seems to 
| have considered the omission of any use of his 
| authority which might tend to family aggrandizement, 
| as a sort of moral fault, as the neglect of a good gift 
| from Providence.  This system was a nuisance, 
| because it kept the country in eternal uproar, not with 
| struggles for liberty, but with competitions for 
| superiority, or defiance of the laws.  The office of 
| sheriff was perhaps the one most conspicuously 
| abused.  Each county was ruled by an hereditary 
| sheriff.  This person was not merely a ministerial 
| office, but a Judge, and a Judge of considerable 
| authority.  In civil suits he had an almost unlimited 
| jurisdiction, except in those which concerned 
| heritable property; and in criminal cases he had the 
| power of life and death.  This office continued to be 
| hereditary until the year 1746; having been 
| surrendered at the time of the Union as a feudal 
| trapping to the vanity and ambition of the Scotch 
| commissioners and their political friends, and 
| terminated in consequence of the events of 1745.  The 
| noble families who held this office, prudently 
| managed to make it as fruitful, and to improve it as 
| perseveringly, as they did any of the other family 
| possessions.  Within the compass of the law, there 
| were many methods of satisfying their avarice; but 
| some desired what even the facile laws they exercised 
| denied, and the present very curious collection 
| produces numerous instances, where Judges are guilty 
| of the most vulgar and ungentlemanly crimes.  To 
| extract many of them would be useless and tiresome; 
| but a list of the achievements of one industrious 
| personage may give amusement.  On the 4th 
| November 1509, Patrick Agnew sheriff of Wigton, is 
| indicted before the Court of Justiciary ~~ the supreme 
| criminal tribunal of Scotland ~~ for <q> </q> in 
| having presented the murderer to a Jury, and then 
| taken feyis <fees> and money to purge the said 
| Thomas of the said slaughter, he being guilty thereof, 
| and <hi rend="italic"> <f> 
| </f> </hi> purging him of the said 
| crime.  Fined
| <pb n="337">
| V merks.   On the 3rd of March 1513, the same 
| individual is indicted for <q> </q> 
| <armed depredation,> and is <q> </q>, 
| <the extent of punishment inflicted>
| <on a sheriff-highwayman.> <q> 
| </q>.
| The Sheriff was not deprived of his jurisdiction.  It 
| would have been as unreasonable to have taken it 
| from him, as to have deprived him of any other article 
| of property; nay more so, because it would have been 
| a seizing of that which would have been of little or no 
| advantage to the persons taking it.  Property might 
| have been of use to the Exchequer, but not the 
| jurisdiction, which taken from one individual, must 
| have been immediately disposed of to another.  
| Accordingly after having security to make his <p> 
| "composition" </p> the worthy Sheriff speedily 
| re-appears on the record, under an accusation of <q> 
| </q> of <q> </q>, <q> </q>.  How he came to 
| interfere with the holding of a court by Sir David 
| Kennydy, is not stated, and it is probable that in this 
| instance he had attempted to extend his authority 
| within the jurisdiction of some neighbouring
| <pb n="338">
| sheriff.  In the next page he is introduced in a more 
| respectable capacity, as <hi rend="italic"> surety 
| </hi> for some individuals who had committed 
| murder and stolen sundry cows.  Nothing is so 
| strikingly depictive of the power of the aristocracy in 
| Scotland, as the absolute escape, or mere infliction of 
| a petty fine, on prisoners accused of the most 
| atrocious crimes, when a laird comes forward to act 
| as their surety, and the certain death which awaited 
| petty delinquents who had no one to answer for them.  
| A pick-pocket at a fair, or an issuer of false coin, is 
| invariably hanged.  The member of a band of 
| depredators is generally rescued by his laird, the chief 
| of the gang, being his security.  What was the full 
| effect of this <p> "security," </p> or how the 
| recognizance might be forfeited, does not appear, but 
| it seems to have been a matter very little attended to.  
| The same individual frequently appears accused of 
| repeated acts of robbery or murder, and is relieved by 
| the same individual ~~ the laird ~~ as often as he 
| makes his appearance, until the laird may happen to 
| tire of his proceedings, and then he is sent to the 
| gallows.  The next entry regarding this sheriff is 
| unequivocally headed <q> </q>, and he compounds 
| <q> </q>.  The same collection gives another 
| specimen of the proceedings of a sheriff, so 
| characteristic of the then administration of justice, as 
| it was called, that it is not fit to pass it by unnoticed.  
| George Gordon laird of Geight entertained a deadly 
| feud towards Hay of Ardlethame, whom he accused 
| of having murdered his brother.  It is probable enough 
| that any recourse to the chief criminal judicature 
| might have proved vain; but the laird of Geight, who 
| seems to have entertained conscientious scruples 
| against an informal revenge, had a useful coadjutor in 
| his relative John Gordon of Clubisgoule sheriff of 
| Aberdeenshire, who displayed great readiness in 
| assisting to bring the offender to justice.  It appears 
| from the narrative in the record, that the sheriff and 
| the injured party collecting a band of armed followers 
| seized Hay in the house of a relative, and conveyed 
| him to Aberdeen, where they lodged him in <q> </q> 
| in the Gallowgate, a house belonging to the laird of 
| Geight.  Here he was kept in close confinement for 
| forty eight hours, his friends being denied access to 
| him.  The sheriff then <p> "fenced" </p> and held a 
| court, at which a barrister who happened to be in the 
| neighbourhood, Mr. William Barclay, advocate, 
| offered to act as counsel for the prisoner, but was 
| effectually prevented from opening his lips, by being 
| coolly told that if he attempted to speak, twenty 
| daggers should be plunged in his body ere he could 
| descent the stair,
| <pb n="339">
| <q> </q>.  A Jury was chosen by the prosecutor, who 
| did not fail to find he prisoner guilty, and the 
| unfortunate man was given over to his enemy, as the 
| person who knew best how to deal with him, and was 
| effectually sent out of the world by repeated blows on 
| the head and neck, <q> </q> as the indictment against 
| the murderers expresses to have been such <q> </q>.  
| Both actors in this tragedy were indicted to stand trial 
| for <q> </q>.  To have attempted to apprehend 
| persons of so great authority, might have been vain 
| and dangerous.  Poor offenders only appear on the 
| face of these ample records, to have ever been 
| brought to court as prisoners; the great were cited to 
| appear, a command which they sometimes resisted, 
| and sometimes complied with, bringing with them a 
| band of followers, which made those who had 
| requested their attendance glad to be quit of it.  It was 
| usual for the persons so cited to find security to 
| appear, and on forfeiting their recognisances by not 
| appearing, they were <q> </q>, or denounced rebels 
| by sound of trumpet; a process equivalent to outlawry, 
| and which though it placed the offender beyond the 
| pale of the law, prohibited him from defending or 
| prosecuting in any suit, and virtually permitted him to 
| be slain with impunity, seems to have produced very 
| little real change on his condition, as it was a state of 
| citizenship which the king and council could manage 
| to impose on any individual whom they thought 
| proper to perplex with accusations of fictitious crimes, 
| and from which a royal mandate termed a <q> </q>, 
| was sufficient to relieve him when a political reason 
| called for such an act, even to the effect of relieving 
| an outlaw after his death, when it was found 
| convenient to punish his murderer.  It appears that the 
| sheriff proceeded to Edinburgh about the time 
| required, <q> </q>; but changing his intention, 
| probably from not having been able to muster so 
| many <q> </q> as he might have wished, he did not 
| appear in court, and was outlawed.  The practical 
| perpetrator of the murder appeared, boldly 
| maintaining the sanction which the decision of a 
| Judge had given to his deed.  He offered <q> </q>, or 
| reasons in bar of trial; on which, in the terms of the 
| record, he managed to support a debate against the 
| crown counsel for ten days.
| <pb n="340">
| <q>
| <pb n="341">
| </q>
| Tired out, it would appear, by the pertinacity of the 
| prisoner and his counsel, the Justiciar or Chief Justice 
| adjourned the matter to the ensuing Justice-Air of 
| Aberdeen, the spot where the crime was perpetrated, 
| and where the laird was likely to find as many <q> 
| </q> as would effectually support his pleas in bar of 
| trial; no more seems to have been heard of the affair.  
| These are merely individual acts; but there were some 
| judges who followed their principles of oppression, in 
| other words their own law, with as much system as 
| the law of the land was presumed to be followed, and 
| occasionally with much more.  One of these, from the 
| gallant extent of his iniquities, has found his way to a 
| niche in history; in the person of Patrick Earl of 
| Orkney, who apart from the main land in the cluster 
| of lonely islands of which he was sheriff, established 
| and put in practice a new code of laws framed by 
| himself and calculated for his own use, gave final 
| judgment in any case he chose to take in hand, 
| ordered criminals to be hanged, levied taxes and 
| talliages to replenish his own pocket, and finally gave 
| judgment against his vassals for treason against 
| himself, and forfeited his own fiefs to his own 
| Exchequer.  The extent of the acts of this individual 
| have made them known to the world; but it would be 
| impossible within reasonable limits to mention the 
| numerous less distinguished persons who, retired in 
| unknown corners of the country, have displayed 
| within their narrow spheres, their accomplished 
| knowledge of that king-craft, which it was James's 
| pride to arrogate to himself.
| The most dangerous interruptions, however, to the 
| even course of justice, from the effects of hereditary 
| influence, proceeded from certain absolute civil and 
| criminal jurisdictions termed <q> </q>, enjoyed by 
| some of the most potent noblemen within certain 
| limited districts.  These individuals were called <q> 
| </q>; and the practical difference between the 
| hereditary power of such a person, and that of any 
| ordinary judge such as a sheriff, consisted in the 
| circumstance, that the latter held his hereditary office 
| from the king's person, ~~ he was
| <pb n="342">
| the king's law-officer, and consequently his decrees 
| might be reviewed by a superior judge, or finally by 
| the monarch himself.  The Lord of Regality possessed 
| an absolute independent jurisdiction in his own 
| territory, with which even royalty dared not interfere.  
| By a feudal nicety he was indeed considered the royal 
| vassal; that is; he was vassal for his lands, but by 
| virtue of holding the lands he held likewise the 
| jurisdiction; his fief might therefore be forfeited for 
| treason, and the jurisdiction would go along with it, 
| but no corruption as a judge could be the means of 
| depriving him of his power, he having the same 
| divine right to judge within his own district, which 
| the king had over the rest of the country.  The Lord of 
| Regality seldom sat in judgment in his own person; 
| his court was held by a judge called a <q> </q>, who 
| was generally the steward or chief household officer 
| of the lord, in short the person who looked after his 
| master's business whether in the farm-yard or on the 
| bench, ~~ an individual whose union of offices is 
| strikingly in accordance with the presumed origin of 
| the royal judges in England and in other nations.  
| Such was the description, of persons who enjoyed 
| within a particular district supreme and 
| unquestionable jurisdiction in civil suits, and in all 
| criminal matters, treason and witchcraft considerately 
| excepted.  The manner in which the jurisdiction of 
| these officers is mentioned by Scotch lawyers, gives it 
| an aspect truly kingly.  They divide the whole country 
| into <p> "Royalty" </p> and "Regality;" </p> the 
| former being such portion as was superintended by 
| the sheriffs or judges of the king, the latter such as 
| was judged by the Lords of Regality, <q> </q>, says 
| the Text Book of the Scotch lawyer, <q> </q>.  The 
| Lord of Regality's Court had a Chancery; from which 
| were issued Brieves for serving heirs, or of 
| Mortancestry, directed to a Jury of Inquest, and 
| having the same effect as those proceeding from the 
| Royal Chancery.  The method by which the Baillie of 
| Regality took under his special care any member of 
| his flock who had the misfortune to be presented for 
| trial before the king's court, was by appearing in court 
| and <p> "repledging" </p> him.  According to the 
| letter of the
| <pb n="343">
| law, the Baillie was obliged to find security that he 
| would put the prisoner on his trial within a year and a 
| day; a formality which it need not be remarked had 
| little more effect than the Lord of Regality might 
| afterwards chuse to give to it, and one of which the 
| crown officers seem to have been quite aware of the 
| weakness, as in almost every case of <p> "repledging" </p> 
| which occurs in the present volumes, the Lord 
| Advocate resists the claim, generally on the question 
| of fact whether the prisoner actually belonged to the 
| jurisdiction of the Regality, and sometimes on the 
| plea that the Baillie has been too late in making his 
| claim.  The prosecutor well knew that he did adieu  to 
| the prisoner who was <p> "repledged;" </p> and the 
| Lord of Regality being generally the head of the band 
| of marauders of which the individual brought to trial 
| might be a practical member, found his jurisdiction a 
| much more convenient method of restoring his 
| thieves to the bosom of their clan, than the method by 
| means of <p> "securities" </p> which has been 
| previously described.  An ineffectual attempt was 
| made in 1587, to limit the power of Lords of Regality.  
| Their jurisdiction was taken away in 1762, leaving 
| them what they still possess, the choice of the Chief 
| Magistrate or <p> "Baillie" </p> of one or two small 
| towns previously the head boroughs of their territory.
| After having thus sketched the state of the aristocracy, 
| and a few of the methods by which they interrupted 
| the establishment of a regular system of justice and 
| laughed at the laws, it will be still more instructive to 
| sift a few of the arts and deceptions by which a feeble 
| Crown managed to resist its powerful adversaries, and 
| to revenge on the weak the insolence and outrages of 
| the strong.  The crown was protected by a gaudy 
| barrier of legal fictions, which though theory 
| presumed them sacred, and even maintained them to 
| be infrangible according to the laws of nature, were 
| fearlessly and unconcernedly defied by those who had 
| power enough to set a king at defiance, ~~ but 
| presented a cold and never-yielding resistance to the 
| unhappy men, who were obliged to appeal for justice 
| or supplicate for mercy.  In attempting to sketch the 
| method of operation in the courts, it is impossible in 
| some instances to reduce the administration of the 
| criminal law of Scotland to regular heads and 
| principles.  There is a general presence of forms, but 
| absence of principle; in other words, the use of 
| technicalities, applied not according to fixed rules, but 
| as the more powerful party concerned chose to apply 
| them.
| One of the most unartificial parts of the system of 
| policy by which the Prince endeavoured to overcome 
| the power of his natural enemies the Nobles, was that 
| which proceeded by setting
| <pb n="344">
| them to destroy each other.  Thus, in the year 1556, 
| Lord Lovat, who had been imprisoned for some 
| offence, is released under a contract, that he shall do 
| his best to pursue and apprehend some of the Queen's 
| rebels, specially named in the Act of Court; and with 
| the usual provident formality of the Scotch courts, he 
| finds two sureties, who become bound for his 
| performance of the stipulation.  The feuds of the 
| Highlanders of Scotland, their acts of depredation, 
| their habits of dishonesty and predilection for the 
| produce of other men's industry, are but too well 
| known.  Charity however to the natural propensities 
| of the uncultivated human intellect, will not allow the 
| whole odium of their rapacity and dishonesty to be 
| thrown on the Highlanders themselves; the more 
| civilized part of the community must bear the weight 
| of part.  If a hankering after murder and theft was the 
| feeling which beat prominently in a Highland bosom, 
| the manner in which the laws were administered did 
| not discourage it.  The method by which the royal 
| authority tried to quell their inroads, was by allowing 
| those who were plundered to take revenge.  The 
| Macgregors, one of the most savage of the Clans, had 
| early become notorious for evil deeds, and obnoxious 
| to Government.  In 1603, the Clan was put under the 
| superintendence of its hereditary enemy Archibald, 
| Earl of Argyle, appointed King's Lieutenant <q> </q>.  
| The Earl justified the power thus placed in his hands, 
| by a successful imitation of the system of his master; 
| he excited the Macgregors to plunder another of his 
| hereditary enemies, the Laird of Luss, and finally 
| granted them a commission, bearing the royal 
| authority as emanating from the King's Lieutenant, 
| which empowered them to proceed against the Laird 
| of Luss and his clan as enemies of Government.  The 
| chief of the Macgregors showed no reluctance to 
| commence his pleasing duty; and the Laird of Luss 
| having in the meantime obtained a royal commission 
| to resist and suppress the Macgregors, both parties 
| met in a sort of battle, in which each fought under the 
| formality of the royal sanction.  The chief of the 
| Macgregors and several of his clan were afterwards 
| brought to trial for the victory they had obtained; and 
| were accused of having slain one hundred and forty of 
| their enemies in cold blood after having taken them 
| prisoners, of having rifled and burned all the houses 
| on the estate of Luss, and of
| <pb n="345">
| having possessed themselves of 600 cows, 800 sheep 
| and goats, and 280 horses; making in all one of the 
| most brilliant affairs, of the hundred or thereabout of 
| highland <p> "raids" </p> recorded in these pages.  Macgregor 
| and several of his Clansmen suffered death; and the 
| manner in which the district was <p> "proclaimed" 
| </p> (by a sort of Coercion Act), and the name and 
| race attempted to be exterminated, is known to history.
| But in the judicial villainies transacted within the 
| walls of the Court-room, may be found still more 
| instructive lessons, than among the mountains of the 
| Macgregors.  In looking at these, it will be necessary 
| to compare the powers of the jury, with those of the 
| King as acting personally (a by no means uncommon 
| circumstance) through his Privy Council, his Judges, 
| or his Prosecutor the Lord Advocate.  The origin of 
| Trial by Jury is still more obscure in Scotland than in 
| England.  Amidst the irregularities to which, with all 
| the other branches of the judicial establishment, it was 
| subjected, negative evidence occurs that its power 
| was much limited, and that it was a considerably 
| distinct institution from the English Jury; although the 
| intercourse of the two nations may have afterwards 
| brought about a greater resemblance.  The Scottish 
| Jury, at the earliest period where there are judicial 
| documents exhibiting its practice, was an instrument 
| entirely feudal.  It may indeed be presumed from the 
| present record that the Jury or <p> "assize" </p> 
| merely consisted of the <hi rend="italic"> Pares 
| Curiae </hi> of the Feudal System, ~~ the co-vassals 
| of the accused, cited before the Over-Lord, not as <q> 
| </q> to which the accused was to appeal for justice, 
| but as <p> "assessors" </p> or advisers to consult 
| with the holder of the court.  So far back as any 
| record goes, it does not sentence without a jury; but 
| the miserable feebleness of the Jury in Scotland up to 
| a very late date, shows its despotic origin.  Opposed, 
| it may be said, to the Jury, in as far as respected the 
| interest of the accused, was the Crown, with the Privy 
| Council, the Lord Advocate, and the Judge. The first 
| filtering which the Jury underwent, was by the Lord 
| Advocate, who chose and cited those who were to 
| attend, ~~ or the array, ~~ out of which those to sit on 
| the trial were afterwards to be selected.  It maybe 
| supposed that His Lordship seldom performed this 
| duty with directly dishonest intentions; but he was 
| generally <p> "a respectable man," </p> ~~ a good 
| servant to the King his master, ~~ one who revered 
| the face of a Sovereign, and having an eye to his own 
| respectability, would take care not to chuse <p> "improper 
| persons" </p> likely to oppose the salutary punishment due 
| to the contemners of
| <pb n="346">
| <paragraph>
| The second purification which the Jury underwent, 
| was from the <p> "wisdome" </p> of the Judge, who 
| selected the fifteen men who were to act on the trial.  
| Notwithstanding these useful precautions, it was 
| difficult in some cases to obtain a perfectly proper 
| Jury.  In 1539 James V. is found sending a letter to 
| his Justiciar, ordering him to postpone a trial for 
| twenty or thirty days until <q> </q>.  In 1606, owing 
| to the religious temper of the nation, great difficulty 
| was experienced in procuring a fit Jury to try the case 
| of Forbes, Welsch, Duri, Duncan, Strauchane, and 
| Sharpe, who, as connected with the celebrated 
| General Assemble held at Aberdeen, were indicted 
| for <q> </q>, <reg orig="&c."> etcetera. </reg>  The 
| assistance of an able diplomatist in these matters, the 
| Earl of Dunbar, was brought to the aid of the Crown, 
| and after some difficulty what was wanted was 
| procured; and in order to make the Jurors so honoured 
| do their duty, the whole of the Secret Council, to the 
| amount of twenty persons, chose to sit in court as 
| assessors or legal advisers to the Justiciar.  It will 
| perhaps scarcely be credited in some quarters, that the 
| selection of the Jury by the Court, continued to be a 
| characteristic of the law of Scotland till the year 1825; 
| when the system was altered, after very considerable 
| opposition from the landed proprietors, and the law 
| officers of the crown.  It was indeed a useful 
| instrument, and at a period comparatively late, which 
| is remembered with horror by men not very far 
| advanced in years; when it was found the means of 
| procuring in Scotland, what all the art and power of 
| the Ministry could not accomplish in England.  An 
| instance of its use occurred in the middle of the 
| eighteenth century which may be said to be almost 
| ludicrous, if a judicial murder can be qualified by 
| such a term.  James Stewart, brother of Stewart of 
| Ardshiel, was accused of having murdered Colin 
| Campbell of Glenure.  The Duke of Argyle was the 
| political enemy of Stewart, and the relative of 
| Campbell, whose death, as that of a clansman, he was 
| bound in honour to avenge.  Fortunately for his 
| purpose he was <p> "Justice General" </p> of 
| Scotland, an office then, as at the present day, not 
| bestowed upon a lawyer, but reserved as an 
| appendage of rank and emolument for some favoured 
| Peer, and never executed by the holder.  The Duke
| <pb n="347">
| was resolved however to perform for once the duties 
| for which he was paid.  He held a Court at Inverary, 
| the capital of his own domains.  In courtesy to the 
| rank of the Judge, the Lord Advocate, Mr. Grant, a 
| man of considerable talent, proceeded to Inverary, to 
| give the assistance of his eloquence to the Duke, 
| although it was not customary for the tenants of his 
| high office to leave the capital.  The prisoner, besides 
| having slain <p> "a Campbell," </p> had the 
| misfortune of being reputed disaffected to 
| government; and the Court and Jury were told by the 
| prosecutor <q> </q>.  <hi rend="italic"> Eleven 
| individuals of the name of Campbell </hi> were 
| selected by the Duke to sit on the Jury.  They did their 
| duty, unanimously finding the prisoner guilty, and the 
| Duke in condemning him to death, informed him that 
| he had got <q> </q>.  But previously to the 
| Revolution, and at the period more particularly under 
| view, the prosecutor and court, if they should after all 
| their vigilance have stumbled on an improper Jury, 
| had still a healing recourse, and a most effectual one.  
| It was customary for the Lord Advocate on a case 
| going to trial, to <q> </q>; that is to say, to protest 
| that if the Jury gave a verdict of acquittal, they should 
| themselves suffer a prosecution for having done so.  It 
| is unnecessary to quote instances, for the protest is 
| taken in fully one-third of the cases in this collection, 
| and seems to have been a regular formality.  The 
| threat was not a vague and unmeaning bravado, for 
| there are at least eight or ten cases in which it was put 
| in execution; and the country had to witness the 
| humiliating sight of a Jury tried by another Jury, and 
| punished for having acquitted a person whom the 
| King wished to have condemned.  In interpreting the 
| Statute (1475, c. 64) in which the method of trial for 
| this <p> "crime" </p> is laid down, it seems to have 
| appeared doubtful to the commentators of the Scotch 
| law, whether a Jury could not also be tried for 
| erroneously condemning; though it is allowed that no 
| instance of such a trial has occurred, and Sir George 
| McKenzie seems to have presumed such a measure 
| needless, as <q> </q>.  A curious document, however, 
| which has been lately brought to light, being an 
| account of the <p> "constitution" </p> of Scotland 
| prepared for the use of Queen Mary on her return to 
| her native country, has
| <pb n="348">
| let out the secrets of the Court on this and some other 
| matters, and plainly states, that a Jury can be tried for 
| willful error, in case of acquittal <hi rend="italic"> 
| only. </hi>  It should be held in mind, that the ground 
| of accusation against a Jury indicted for willful error, 
| was not founded on their pre-arranged design to 
| defeat the ends of justice, and their infraction of their 
| oath by the acquittal of one whom they knew to have 
| been guilty; but simply, as one whom they knew to 
| have been guilty; but simply, as McKenzie has taken 
| great pains to point out, because they were 
| impervious to the arguments of the Lord Advocate, 
| and could not be content with the same evidence of 
| guilt which was sufficient to satisfy the Crown.  
| Accordingly no other evidence was brought to convict 
| them, than that which had been previously submitted 
| to themselves, <q> </q>, says the author just 
| mentioned, <q> </q>.  The punishment of this <p> 
| "crime" </p> was somewhat similar to that of perjury; 
| the victims were imprisoned for a year and a day, 
| their moveable goods were forfeited, and they were 
| pronounced<p> "infamous," </p> a sentence almost equivalent 
| to outlawry, preventing their oath from being received 
| in any court.  With such a doom hanging over the 
| heads of a Jury, none can wonder at the crown 
| obtaining convictions at will, or refrain from admiring 
| the few undaunted men, who in that semi-barbarous 
| age had consciences and opinions which the power of 
| man could not control.
| It would indeed appear doubtful, whether in early 
| ages the Jury were expected to take cognizance of the 
| facts at all, except so far as, from living in the 
| neighbourhood of the spot where the crime was 
| committed, or from some other cause of knowledge, 
| they might be personally in possession of them.  This 
| point is illustrated in a very curious manner, by a long 
| pleading which occurred in the case of Maxwell of 
| Gribtown and others, indicted for <q> </q> &c.  The 
| accused were first tried before the Privy Council, who 
| had by right no jurisdiction in the case, the crime 
| being capital.  It appeared that no evidence could be 
| procured in the case, ~~ probably from the influence 
| of the parties, who were persons of considerable rank; 
| and the Privy Council not chusing to condemn 
| without evidence, they were acquitted.  The case was 
| then remitted to the Justiciar, who it appears, with the 
| assistance of a Jury, could manage
| <pb n="349">
| the matter without evidence.  It has been a just maxim 
| in Scotland, from a very early period, that no man can 
| be twice tried for the same offence, and accordingly 
| the accused very naturally pleaded their acquittal 
| before the Privy Council.  The Lord Advocate, 
| himself a member of the Privy Council, coolly 
| answered, that the Council having no jurisdiction in 
| the case, their acquittal was a dead letter; <q> </q>.  
| The Justiciar repelling the defence, as a plea in bar of 
| process the accused pleaded the circumstance of their 
| acquittal to the Jury.  The Lord Advocate with a 
| charitable respect for the consciences of the Jurors, 
| <q> </q>, admits an Extract of the Minute of Council 
| to be produced and laid before the Jury, to be used 
| <q> </q>.  He then launches into a line of argument 
| explanatory of the reason why  no evidence is 
| produced in the case; he tells the Jury, that crimes are 
| devised and done secretly, and in such a manner that 
| witnesses can know nothing about them, and that <q> 
| </q>; that according to the happy laws of Scotland 
| they need not be proved by witnesses, but are <q> 
| </q>, whose determination according to their 
| conscience is a sufficient warrant to convict, and it is 
| sufficient to them to convict, that they cannot clearly 
| and justly acquit, <q> </q>.  He then proceeds to tell 
| them, that though there was not sufficient evidence by 
| witnesses to justify a conviction before the Privy 
| Council, this circumstance would not justify the Jury 
| in acquitting, who, if they did so, would assuredly be 
| guilty of <p> "wilful error," </p> in respect of the 
| notoriety of the circumstances of the crime, <q> </q>, 
| an excellent practical commentary on the previous 
| doctrine of the secrecy of crimes in general, and the 
| difficulty of finding evidence in the particular
| <pb n="350">
| instance.  The Jury, so circumstanced as to their 
| power of inquiry, and having the protest of <p> "wilful 
| error" </p> in case of acquittal hanging over their heads, 
| found a verdict of guilty.  This is one of the many 
| instances, in which all the evidence which the Lord 
| Advocate lays before the Jury, is <p> "common 
| notoriety" </p> or public report.  The matter is 
| brought into a still smaller compass in the case next 
| referred to.  In January 1619, James Scrymgeour was 
| indicted for the murder of John Edward, <q> </q>.  
| The accused offered to prove by witnesses, that the 
| death of the deceased had not been caused by the 
| wound in question.  The Lord Advocate scouted the 
| proposal, maintaining that by the practice of Scotland, 
| no witnesses could be received, except in cases of 
| treason.  Here follows his lucid pleading.
| <q> </q>
| The Justiciar confirmed this reasoning, and the proof 
| offered was refused.  It is admitted by the Lord 
| Advocate in this case, that witnesses are admissible in 
| cases of treason, and there does not appear that such 
| evidence was refused, though there are several where 
| all the evidence which the prosecutor chuses to bring 
| forward to second his demand of a verdict, is the <p> 
| "notoriety" </p> so decidedly explained above, 
| insisting that no other evidence is necessary.  Let it  
| not however be understood, that the prosecutor meant 
| to admit, that even in cases of treason, witnesses 
| ought to be confronted with the accused; so unseemly 
| a practice was unknown to the Law of Scotland until 
| later days.  When proof by witnesses was admitted, a 
| more formal method was adopted; the witnesses were 
| examined before the Privy Council, and their 
| depositions presented in writing to the court.  On the 
| whole therefore it seems to have been held, ~~ at least 
| by the Crown, and an opposite doctrine maintained in 
| any other quarter would have met with little respect, 
| ~~ that the circumstance of the King's Advocate 
| honouring any individual with a prosecution, should 
| be sufficient to persuade a docile and submissive
| <pb n="351">
| Jury of his guilt, and that a demand for further 
| evidence was a sort of contempt of the wisdom of that 
| great Official.  In connexion with this subject, should 
| be mentioned a peculiar form of protest, almost 
| invariably made by the prosecutor in cases of Treason; 
| ~~ <q> </q>. <He who of his conscience cannot cleanse,> 
| <or find innocent, he of necessity must find guilty.>
| These words appear to preclude any negative 
| verdict in favour of the accused; and to infer that on 
| being brought into court under the law of <p> 
| "notoriety" </p> (in other words general suspicion) he 
| must be presumed guilty, and that if the Jury are not 
| convinced of his absolute innocence, he must be 
| condemned.  It seems to have been the practice for 
| yielding and somewhat conscientious Jurymen, when 
| thus beset, to solace their minds with the reflection, 
| that they did not absolutely condemn a man they did 
| not believe to be guilty, but by giving a negative 
| verdict merely to facts, in some degree left the burden 
| of consequences to persons better accustomed to bear 
| such loads.  Thus, so late as the year 1681, the 
| individual who has left behind him a report of the trial 
| of the Earl of Argyle, has testified his astonishment 
| that the Jury did not find a verdict of <p> "proven" 
| </p> (<hi rend="italic"> <reg orig="i.e."> that is 
| </reg> a verdict that certain facts were proved, 
| leaving the question open whether or not these facts 
| amounted to the crime specified,) instead of finding 
| him guilty; <q> </q>, he observes, <q> </q>.  
| Afterwards the court came to an accommodation with 
| such scrupulous Jurors, by taking on itself a very 
| considerable portion of the burthen of the verdict.  
| The court pronounced an <q> </q>, finding that if a 
| certain narrative of events was proved, the prisoner 
| was guilty of some named crime; and then the Jury 
| found that the narrative was proved, without having 
| anything to do with the conclusion derived from its 
| being so.  It needs hardly be observed, that the 
| doctrine which long disgraced the Law of England, 
| prohibiting any evidence contradictory to the facts as 
| stated by the Crown, was in full observance in 
| Scotland.  So long as no evidence whatever was 
| allowed, the doctrine would have been a superfluity; 
| but when, towards the latter end of the reign of James, 
| the evidence of witnesses began to be received on 
| both sides, this principle was found to be a useful 
| importation from the Civil Law, and it was taken into 
| consideration, that the bringing any proof to 
| contradict the statements made by the Crown, 
| involved
| <pb n="352">
| the indecorous offence of calling the King a liar.  It is 
| right to state, that an individual already mentioned, 
| Sir George McKenzie, Lord Advocate to Charles II, a 
| man known for much evil and some good, ~~ a man 
| with an acute eye towards remedying disorders, while 
| his ambition taught him to support despotism, ~~ put 
| an end to this disgraceful fiction in the law of 
| Scotland, a considerable time before it was rooted out 
| from that of England.
| <paragraph>
| The powers of legislation possessed by the Criminal 
| Courts in Scotland were anciently fettered by very 
| few statues, and these of a most accommodating 
| obscurity.  Late criminal lawyers have lauded with 
| great exultation this system, which still exists in 
| theory, and to a considerable extent, in practice.  <q> 
| </q>, says Mr. Baron Hume, a lawyer of eminence, 
| <q> </q>.  Another writer makes the following 
| remark, with a particular reference to the crime of 
| Sedition.  <q>
| <pb n="353">
| </q>.  The meaning here of the words <p> "common 
| law," </p> ~~ a term not indigenous to the Criminal 
| Code of Scotland, ~~ is the arbitrary decision of the 
| Judges; and the passages, if it can be reduced to 
| explicit English, would appear to mean, that because 
| the Judges have in a moment of fury taken vengeance 
| on their political opponents, imposing on them 
| punishments <q> </q>, there cannot be a safer 
| protection from severe punishments than the 
| possession of such powers.  In one instance, on the 
| occasion alluded to by the learned lawyer just quoted, 
| an argument had taken place as to the legal amount of 
| punishment, when the Court gallantly maintained <q> 
| </q>.  The services done to Government on such 
| occasions in the selecting of Jurors, have been spoken 
| of; in the administration of the punishments, a service 
| no less efficacious was performed, which the 
| unpliability of the English system, <q> </q>, did not 
| admit in the southern part of the island.
| Of the effect which this judicial power produced on 
| the administration of the Criminal Law, a few 
| instances will form the best evidence.  On the 21st of 
| May 1602, William Norwall schoolmaster in Cockpen, 
| is indicted for <q> </q>; a crime which one would be 
| apt to conceive to be of pretty considerable magnitude.  
| The prisoner <p> "compounds," </p> or comes to the 
| King's will; that is, accepts of whatever mitigation the 
| Crown may vouchsafe him, on his throwing himself 
| on the royal clemency, and saving the trouble of a 
| trial.  The punishment
| <pb n="354">
| awarded, is banishment from the kingdom for life.  
| Either His Majesty regretted having not driven harder 
| terms, or some peculiar cause known to himself made 
| him anxious to have the schoolmaster out of the world 
| as well as out of the kingdom; for he is found on June 
| 9th indicted for <q> </q>, probably on the ground of 
| some informality in his commission; ~~ convicted 
| and executed.  But one of the most effectual purposes 
| to which the power of the Court was applied, was to 
| give the King vengeance on those <p> "monsters" 
| </p> of iniquity, who had sneered at his person or 
| undervalued his abilities.  King James the Sixth of 
| Scotland and First of England, has been handed down 
| through history, as a great investigator of the 
| mysteries of King-craft, but a man of too little energy 
| of character, and too easy in his disposition, to put his 
| arbitrary principles in frequent practice.  He may have 
| been so in as far as respected the care of the rights of 
| others; but when his own person was reflected on, he 
| was as the tiger prowling for his prey.  He pursued the 
| delinquent with all the powers which the law (if it 
| may be called such) put into his hands; and, except in 
| the case of the clergy, around whom the popular 
| feeling made a barrier he could not safely pass, he 
| never failed in pursuing his victim to death.  On the 
| 3rd of August, 1596, John Dickson in Lyne, <p> "an 
| Englishman," </p> was indicted for <q> </q>.  The 
| amount of his offence was, that being drunk, he had 
| allowed a boat he was managing to come in the way 
| of one of the King's Ordnance vessels; when being 
| called on by Archibald Gairdenar, one of his 
| Majesty's canoneers, to veer and give place to his 
| Majesty's Ordnance, <q> </q>.  The Jury, with the 
| qualification that he was <q> </q>, found him guilty, 
| and he was hanged.  The next case is that of John 
| Flemyng, elder in Cohburn's Path, indicted for 
| uttering
| <pb n="355">
| <q> </q>.  This individual had been an unsuccessful 
| litigant; and in a moment of indignation against the 
| laws which put him beyond all dread of consequences, 
| <q> </q>, exclaimed <q> </q>:  which may be 
| interpreted, <q> </q>.  On being asked why he 
| uttered such <q> </q>, he <q> </q>.  On the 10th 
| October 1609, Francis Tennant, merchant, burgess of 
| Edinburgh, was indicted for writing <q> </q>.  It has 
| defied the exertions of Mr. Pitcairn, to discover any 
| clue to the contents of these <p> "Pasquils," </p> as 
| they were of such a hideous description, that the Lord 
| Advocate refused to insert them in process; and he 
| seems to have demanded a verdict on them, without 
| showing them.  From the circumstance, however, of 
| their having been addressed to Mr. Robert Bruce and 
| Mr. John Davidson, clergymen in Edinburgh, he 
| judges them to have had reference to the proceedings 
| on the part of King James to compel the clergymen of 
| Edinburgh to believe, and not only believe but say so, 
| that he had been in great danger from the Gowry 
| conspiracy.  The calm resistance of the former gallant 
| man to a long course of persecution, is a fine 
| specimen of <p> "indomitable mind," </p> and of the 
| shrinking of titled insignificance, before the 
| sovereignty of a free intellect.  Had he been a man of 
| less courage or popularity, James would have had his 
| blood; but the monarch was compelled to wreak his 
| vengeance on more paltry heads.  Tennant was found 
| guilty.  The manner in which he was sentenced, is a 
| fine instance to show how independent the Court was 
| of the law.  A warrant is produced, signed by his 
| Majesty, expressing
| <pb n="356">
| the specific terms in which sentence is to be given, 
| the essence of which is, that the culprit is to be taken 
| to the market cross, his tongue cut out, a paper fixed 
| on his brow proclaiming his crime, and then he is to 
| be hanged, <q> </q>.  By a subsequent warrant from 
| the same source, the article as to the cutting out the 
| tongue is revoked, and he is permitted to be hanged 
| with it in.  The next case to be noticed, is of a still 
| more curious nature; the Majesty of the King was 
| insulted through a satire on the country which gave 
| him birth.  The case of Thomas Ross, who was 
| hanged for affixing a <p> "pasquil" </p> on the 
| Scotch nation to the door of one of the Colleges at 
| Oxford, has already attracted the attention of such as 
| have illustrated the manners of the times; but it is here 
| produced, along with new matter so illustrative and 
| striking, as cannot be passed by.  Thomas Ross it 
| appears had been reduced from affluence to extreme 
| poverty; and his family received several sums in 
| charity from the Church Session of his native parish 
| in Perthshire, the last sum afforded being 30s. to 
| enable his brother to visit him under sentence of death.  
| This poor man proceeded to Oxford, where he seems 
| to have been subjected to privations which finally 
| produced a temporary derangement of intellect, in 
| which state he perpetrated the terrible <p> "pasquil" 
| </p> against the Scots nation.  A translation of this 
| curious document has been discovered by Mr. 
| Pitcairn, and printed in this collection.  It is truly sad 
| stuff; and if a man could be hanged for writing 
| nonsense, the author certainly deserved death.  In his 
| confession however he states with much simplicity, 
| that the cause which urged him to write it was, that as 
| a specimen of his talents and spirit, it might be the 
| means of bringing him into notice and so providing 
| him with bread.  This lampoon was not printed, but 
| affixed in manuscript to the door of one of the 
| colleges; and a student passing by read a few lines, 
| <q> </q>, says King James, <q> </q>, carried it 
| immediately to the Vice-Chancellor, who being 
| burthened with so weighty a matter, <q> </q> 
| communicated it to the King, and committed the 
| writer to the Castle; for, being challenged as the 
| author, poor Ross very naturally thought he was 
| called on to defend his thesis, and avowed what he 
| had done.  Now James knew that by the laws of 
| England he could not get this man hanged; so
| <pb n="357">
| he wrote a letter to his faithful Privy Council of 
| Scotland, informing them of the unhandsome 
| restriction placed on his kingly power in his new 
| kingdome, offering the honour of trying Ross to the 
| more accommodating laws of his native country, 
| asking the advice of his faithful counselors in his 
| extremity, and hinting that the last punishment of the 
| law would be an acceptable service if it could 
| possibly be administered.  As this letter is a gem, it 
| will be inserted in full.
| <q>
| <pb n="358">
| </q>
| The Privy Council returned an answer, in which they 
| fully entered into the views of their considerate 
| monarch, testifying their opinion that the <p> "monster" 
| </p> ought to be hanged, but dutifully submitting to 
| procure any punishment his Majesty might suggest.
| <q> </q>
| <pb n="359">
| At the same time an individual member of the 
| Council writes privately to the King, ~~ Thomas 
| Hamilton, Lord Binning, afterwards Earl of 
| Haddington, a man who had contrived by such acts of 
| service as he was then performing, to retain in his 
| person at the same time the three anomalous offices 
| of Lord Advocate, Secretary of State, and Judge of 
| the Court of Session.  This individual proves himself 
| a sincere professor of the doctrine expounded by 
| Baron Hume and Mr. Alison; and certainly on 
| grounds much more clear and satisfactory to himself, 
| ~~ not the questionable basis of utility, but the sure 
| and steady foundation of divine right.  <q> </q>, 
| remarks this man, <q> </q>.  Contemporary 
| documents leave no doubt that Ross suffered death.
| This case leads by a very natural association to 
| another, not properly speaking <hi rend="italic"> 
| case </hi>, but <hi rend="italic"> act </hi> of James, 
| in which he was compelled to depart from his usual 
| judicial formalities, and actually to perpetrate, ~~ the 
| term cannot be helped, ~~ a <hi rend="italic"> bona 
| fide </hi> murder.  The circumstance has been 
| mentioned by Mr. Pitcairn, and an allusion to it is 
| made in the letter from James just quoted; but another 
| document has been obtained, which throwns 
| considerable light on the matter, though not so much 
| as might have been wished.  It appears that a Pole 
| named Stercovius, had visited Scotland in his native 
| dress, and being ridiculed and followed through the 
| streets by crowds of children, he left the country in 
| disgust, and immediately on arriving in his native 
| land, published "A Legend of Reproaches against the 
| Scottish nation."  The active King immediately on 
| hearing of this, employed a trusty agent, Mr. Patrick 
| Gordon, a resident in Prussia, to get Stercovius 
| hanged; a duty which Mr. Gordon faithfully 
| performed.  This matter might have been kept secret 
| from the world, but it was not managed without 
| expense; and James had the imprudence to call on the 
| boroughs to pay the sum which the murder had cost, 
| <q> </q>.  The boroughs refused.  James applied to 
| the Privy Council to compel the
| <pb n="360"> 
| boroughs to obey; and fortunately the Minute in 
| Council, bearing date the 9th of December 1613, is 
| extant.  It states that Sir William Oliphant of Newton, 
| His Majesty's Advocate, represented to the Council, 
| that when the King <q> </q>, for which purpose he 
| had given Mr. Gordon letters and recommendations to 
| those who could assist him, and <q> </q>.  The Lord 
| Advocate then proceeds to state the expense incurred, 
| enlarges on the great interest which the boroughs 
| have to maintain the national honour, states that the 
| money is still due to Mr. Gordon, and to David Grey, 
| a person of Scotch parentage in Russia; and that the 
| boroughs had been frequently applied to, and had 
| refused assistance, <q> </q>.  The boroughs declined 
| the jurisdiction of the Privy Council, maintaining, that 
| excepting to repair damage done by a riot within 
| borough, they could not be called on for a supply, 
| except when sitting in Parliament; and as a 
| corresponding mark of spirit, the Privy Council 
| declined judging in the case.  It is not known what 
| course James resorted to, nor how the affair finally 
| terminated.
| Mr. Pitcairn's three volumes contain upwards of 1,200 
| closely printed quarto pages, copied letter by letter 
| from the original manuscripts, and forming as 
| scrupulously full and ample a record, as if it had come 
| from the Record Committee.  There are besides, 
| numberless illustrative documents, of every degree of 
| minuteness; in gathering which from all quarters, the 
| author has shown the eager diligence of an antiquary.