TE TRIAL SIR ARCHIBALD GORDON KWLOCH, OF GILMERTON, BART. PRICE TWO SHILLINGS & SIXPENCE. T H 9 TRIAL ft. I SIR ARCHIBALD GORDON KINLOCH, 01 GILMERTON, BART. FOR THE MURDER OP SIR FRANCIS KINLOCH, BART. * HIS BROTHER-GERMAtf. Before the High Court of Jufticlary tn Monday June 29. TAKEN IN SHORT HAND, AND CAREFULLY REVISED BY THE COUNSEL. EDINBURGH: ' PRINTED BY C. DENOVAN, TOR J. ELDER, NO. p. NORTH BRIDGE, EDINBURGH, AND G. G. AND J. ROBINSON, LONDON. I795 " in ^tart orierg INDEX. OPENING of the Trial - K Indi&ment - ^ Mr Hume's addrefjs to the Court 4 Interlocutor on the relevancy 9 Lilt of the jury icj EVIDENCE FOR THE CROWN. Duncan M'Millan - <5. George Somner --..-- 19* Debate on queflion put to this \vitnefs - - 25 George Douglas 30 Alexander Campbell - 31 Walter Gibfon. - 3^ Alexander Menie - 33 Hay Smith - - ib. Benjamin Bell - 34 Dr Monro Charles Hay The Rev. Mr Goldie - - 41 Alexander Frafer - - 49 Debate as to this witnefs's being allowed to look at notes.56 Hugh Dodds - - ps Declaration of the pannel - JS EXCULPATORY PROOF. Colonel Twenty man . fj Major Mackay - - - 73 Captain Miller - - - - 7ii Mifs-Kinloch i0838 Debates previous to this lady's examination, as to her being allowed to look at her notes - - f&. John Walker - - - . -7^% ' 85, William Reid > ' 1^ f - ' / -' ' 87. L)r James Home ,r*"'y i *jf - 94 Dr Vavqulisrfon - - - - - 99 Lord Advocate's charge to the Jury - - 113 Mr Hole's dijtto - - - - - 1 1,6 Lord ju.iive Cler,k\ ditto - - *"^ ' *"' 150 The ve;"dil qf the Jury .. - - 154 Adj^urniijent of th' J Court - ib. Deliberation of the Judges at pronouncing judgement 153 The Judgement of the Court - - - 156 Certificate of caution heing found in terms of the judgement. i ..: - 157 LUt of the Witncfll-s on both fides '> I T.HE THE TRIAL O F . SIR ARCH D - GORDON-KINLOCH, BART." JL HE Prifoner was brought to the Bar a little before^ 10 o'clock He was drafted in black; arid his demean- our was decent and refpedfnl. He was attended by Sir Fofter Cunliffe, Bart, his brother in-law, and James Wilkie of Foulden, Kfq; his coufin-german. The Judges, in their Juiliciary- robes, preceded by a Macer, bearing the Judiciary Mace, foon after took their places on the Bench in the following order, viz. LORD JUSTICE CLERK, Lord ESKGRO VE, Lord D.U NSINN AN, Lord SWINTON, Lord CRAIG. In fupport of the Profecution, appeared ROBEUT DUNDAS, Efq; his Majcily's Advocate, ROBERT BLAIR, Efq; Solicitor-General, JOHN BURNET, Efq; Advocate, I.lr HUGH WARKEKDLR, Agent. A For For the Panne!, appeared DAVID HUME, Efq; 1 CHARLES HOPE, Efq; f Adyocatef . WILLIAM RAE, Efq; f DAVID MONYPENNY, Efq; J Mefl. JAMES and CHARLES BREMNER, Agents. Silence being proclaimed, the Clerk of Court ordered a Macer to call Robert Dundas, Efq; his Ma]eft>'s Ad- vocate, for his Majetty's intereit, againft Major Sir Ar- chibald Gord -n-Kinloch of Gilmerton, Baronet; which be- ing done with the ufual forms and folemnities, the Lord Juitice Clerk defired the Prifoner to attend to the India - raent then to be read. INDICTMENT SIR ARCH". CORDON KINLOCH of Gilmer- ton, Baronet, prelcnt Prifoner in the Tolbooth of Edin- burgh, You art Indifted and Accufcd, at the initance of Pu)BtRT DUNDAI, Efq; of Arnifton, his Majefty's Advo- cate, for his Majeay's intereit, THAT VVHLRKAS, by the laws of God, the laws of this, and of every other v/ell governed realm, MURDER, more efyeuially when committed by a Brother againft a Brother, is a ..rime of a molt heinous nature, and feverely punidiable : YET TRUE IT IS, AND OF VERITY, That \ ou, the laid Sir Archibald Gordon-Kinloch, are guilty alor, or art and p.trt, of the forefaid crime, aggravated as afore- laid; IN SO F }R AS You, the faid Sir Archibald Gor- Uon-Kmloch, being, on ihe I4th day of Aj>nl 1795, in the houfe of Gilmert"n, belonging to the decealed Sir Francis Kmloch of Gilmerton, [iaiur.ct, Your Brother- german, fituattd in the p^rifli of Athelitonford, and county of liaddington, did, on the night of the faid I4th, or early in the morning of the 15th of April 1795, or on one or other of the days or nights of tliat month, or of the month of March immediately preceding, or of May immediately ( 3 ) "immediately following, come down from -your bed-cham- ber in the hnufe of Gilmerton aforefaid, to the parlour or dining-room, where Your faid Brother, then was, You ha ving, at the time, two loaded piftols f -me where conceal- ed about Your clothes ; and having foon thereafter left the faid parlour or dining-room, and Your faid Brother having followed, and lx ing then clofe by You, the faid Sir Archibald Gcrdon-Kinioch, on the ftair leading to the upper apartments, You did then and there Murder the faid Sir Francis Kinloch, Your Brother, by wickedly and felonioufly difcharging one of the faid loaded piilols at your faid Brother, by which he received a mortal wound ; the ball having penetrated below the point of the fter- num or breaft-bone, towards the right fide : And the faid Sir Francis Kinloch having languiftied in great pain till the evening of the i6th of the faid month of April, did then expire, in conftquence of the wound given him by You the faid Sir Archibald Gordon-Kinloch, and notwithftand- ing of every medical affiftance having been procured. - And You, the faid Sir Archibald Gordon-Kinloch, he~ ving, upon the 3oth day of May 1795, been brought before James Clerk, Lfq; Sheriff-depute of the {hire of Edin- burgh, did, in his prefence, emit a Declaration, which Was figned by You, the faid Sir Archibald Gordon-Kinloch : Which Declaration, togetner with two fmall pocket piftols, having the words ' H. \V . Mortimer, London, Gunmaker to his Majefty," marked on the barrel j as alfo a piitol-ball, extracted from the body of the fa'd Sir Francis Kinloch j as alfo a certificate dated at Gilmerton the i8th of April 1795, and figned "James Home, Benjamin bell, G. Somner;" al- fo a letter from the deceafed Sir Francis Kinloch to Mr A- iexander Frafer, Sheriff-clerk ofHaddington, dated ijthof March 1795 ; another letter from the faid Sir Francis Kinloch to the faid Alexander Frafer without a date, but marked on the back i8th March 1795 ; as alfo a letter from You the faid Sir Archibald Gordon-Kinloch, to the faid Alexander Frafer, dated Haddington Jail, azd day of April *795; another letter from You the faid bir Archi- bald Gordon-Kinloch to the faid Alexander Frufirr, daicd the ( 4 ) - the faid aid day of April 1795; and alfo a letter, dated Edinburgh Jail, 24th April 1795, from You the faid Sir Archibald Gordon Kinloch, to the faid Alexander Frafer, will all be ufed in evidence againft You, the faid Sir Archibald Gordon-Kinloch, and will, for that purpofe, be lodged in the hands of the Clerk of the High Court of Juiticiary, before which you are to be tried, that you may have an opportunity of feeing the fame. AT LEAST, time and place above mentioned, the faid Sir Francis Kinloch of Gilmerton was Murdered, and You, the faid Sir Archibald Gordon- Kinloch, are guilty a&or, or art and part, of the faid crime. ALL WHICH, or part thereof, being found proven by the verdift of an Aflize, before the Lord Juftice General, Lord Juftice Clerk, and Lords Com- mifiioners of Jufticiary, You the faid Sir Archibald Gordon- Kinloch, OUGHT to be punifhed with the pains of law, to deter others from committing the like crimes in all time coming."* Lord Juftice Clerk. Sir Archibald Gordon-Kinloch, Ba- ronet, Are you Guilty or not Guilty? Prifiner. Not Guilty. After the Pannel had pled Not Guilty, Mr DAVID HUME, one of his Counfcl, addrefled the Court as follows : My Lord Juftice Clerk, Your Lordfhips have heard the plea which the pannel enters to the charge, the grievous- and too relevant charge, which is laid in this (as I muft needs admit it to be) moil neceifary profecution againft him. And it now. remains for thofe who have undertaken the .care of his defence, (however unequal to fo important a talk,) to ex- plain to your Lordfhips, fometvhat more fully than the pannel for himfelf can be expelled to do, the meaning of that plea, in the particular circumftances of this cafe ; and to point out to you the fcope and,obje& of the proof in exculpation, which is intended to be taken on his part. In pleading not guilty to the charge, the pannel would, in the firil place, be underftopd to intimate his denial of that, which the profecutor in fupport of his libel has to prove, and which, if he cannot prove, he mult fail iu his profecution, Lifts of the WitneCc?, cited on both fides, will he aonexcj. t s ) profeoution, namely, That it is He who has been this a&or of the miferable deed of (laughter here related ;r a thing which, even if it be true, the pannel cannot coiv fefs, having fcarce any knowledge or remembrance of what pafled on the occalion of himfelf, but from the re- lation of others only, which does not call for, nor would juftify a confeffion. But farther, my Lord, and perhaps in this cafe ft ill more material, if unluckily it ihali appearand be fhewn, that the pannel's hand has been the unhappy caufe of the death of his Brother, then, my Lord, and in that event, his plea muft be underitood to mean this other, equally available indeed, but far lefs fortunate defence, that at leait his heart and purpofe have not been in the deed, but his hand only, that it was not the work of malice and de- fign, (without which there is no murder,) but of pure fa- tality and misfortune, which he could not avoid, and for which he is not the object of puniihment, but of fympa- thy and commiferation : Becaufe, my Lord, at the tirKj (laced in this Indi&ment, the pannel was no longer to be numbered in the rank of reafonable and accountable be- ings, but by one of thofe high and dreadful violations of Providence, to which we ail, the wifeil and the belt of us, are equally liable, and from which even thrones are not: exempt, had been deprived of all felf-government, of all regulation of his condu6l, or controul of his paffions,- of all dilcernment of friend from foe, or of that which was meant to ferve from that which was meant to harm him, and ated, in fhort, under the blind im- pulfe of a diftempered and furious imagination, which traufported him wherefoever it would, which filled him with a thoufand vain jealouiies, herrors, and appre- hcmions, and would equally have turned his hand a gainft whatfoever peri on had at that moment come in the way. This, my Lord, is the pannei's plea and main re- liance. My Lord, while T (late it for Ivm, I am not ignorant of the reports and rumours that are abroad in the world ; rumours, 1 am forry to lay, which, on the very day preced- ing this trial, and even from the pulpit, the feat itfelf of truth and 01 charity, have, in contempt of decency and humanity, * A RiifUke in pwint ef faft f or the Sunday fe'enight before. humanity, been induftrioufiy circulated to condemn him. I fay, I am not ignoraut of thefe reports, and of the weight of prejudice and fufpicion, with which, in confcquerce, I have to ftrug^le; not indeed with your Lorofhips, whofe breafts are void of every feeling of the fort, and who will liften to nothing but the information of the law, and the flill voice of your own confcience; but with the people at large, from among whom the perfons, who as Jurymen are to decitle on the pannel's fate, arc andmuftbe t. d father, (a father, in good time removed irora the fight of iuch a lethe among I. is children ; y when, my Lord, they are told that this good and eitimable peiion, furrounded with a'.l the fair prcfpefis of a long, a ha) py andan uferul life, that he has bttn taken off by afoul ftjur- der, a murder committed unoer his o\\n roof, almott at his own table, and in the midit of his domeitks, fneiidsand relations ; and when to all this it is atiueci, that he has fal- len by the hanu of his own brother, his gueii at the time, and inn.ate of his h<>uie, by him "who ihcuid againji the *' ft'iurderer shut the i:wr, n-it 'ear the kmjt himjilf :" No wonuer, wiitn this lair.entabk itoty is rclattd, it, in the firlt tmotions of piiv ana of indignation at ib fad and liran^e a tragedy, any thing that can be faid in defence of the unhappy auihi-r of to much mifchief, is ht-aid at firft with a cioie heart and an unfavourable ear. .but, my Lord, h -w natural and how excuieable ibever theft- emotions, (as lurel} they are most excutcable,) they are not, however, me juil and proper emotions for this time and Ov:canon; nor is this a diipotition which tbr > can be fufier- ed to bring with them into the prefence of this Court of juf- tice ; into which, my Lord, they are IK t called to afiuage their paffions, or indulge their feelings, with regard to an event. ( 7 ) event, which, however deplorable, is pail and gone, nd cannot be recalled, ( I would it could ;) but to try as Judges, cooly and impartially to try, nay Icrupuloufly and tenderly to try, the manner of that calamity, whether it was of chance or of defign, and to decide on the life and deatn of a frail and infirm mortal like themfelves, who if, by the will of Providence, he has truly been vifited with this grievous and fore affli&ion, and has been the initru- ment ot deitroying a brother, who never did him harm, and whom he never regarded but as a brother, is himfelf far more to be pitied than the deoeafed, and is no objeb of judgement, but for that Almighty Judge whofe hand hath i'mitten him. '1 hefe things,! trull and hope in God, that all now preffnt, and thofe efpecially who have been cal- led to the office of Jurymen, will, as thty, value tht intereft of jultice, ortheirown peace of rain J, remember ana keep in view ; and that there are no bounds nor meafure to the idle, the confident, yet falfe ana groundlefs ftotics which si whole country, commenting upon one, and that ib mar- velous and interesting a lii j . 1, mult give rile to. My Lord, I afk yuur Lordfliips par.lon for juft touch- ing on this topic, unneccffjiry I confels to your Lordfliips, and to which I fhall not ag;mv re; ur. With refpel to the proper bufiu fs before tli>: G >urc, in Itaiin^ the pan- nel's plea in the general cer .is I have already uied, I have perhaps fuffictcnily complied with the rule of Court, ind have (lated that, wiiich you cannot but iullain as a relevant and lawful defence But, my L rd, from any .hing [ know of tin's cufe, I mall have no obj ftion to lay .he ftate and hiitory of the faft fomewhat more tully be- ore the Court; though, on the other hand, it cannot, and know will nut be expe&ed of me, to enter into a difqui- ".tion concerning the nature of JVladnefs, (the thing of .11 others the hardeitto bt? defcribed,) or tiv:t I Hi^uld at- tempt to alcertain the peculiar claik and character of the diilempe,r, to which this unhappy man was liable. Suffice it to fay, that it was no fliort, fudden, and unac- countable fit of phrenzy, for the full dine obl'erved at the moment ( * ) moment of the daughter, (though, allow me to ohferve, even this, if abfolutely and fully proved, would in law, as in reafon, be fufficient ;) but the pinnel's plea is far more fa- vourable. Upwards of fifteen years ago, I believe in 1779, when abroad in the Weft Indies, in the fervice of his country as an officer, the pannel had the misfortune to be feized with one of thofe dreadful fevers incident to the climates of that quarter of the world, and which raged with fuch violence at this time, that out of 5000 men, which compofed their little army in the ifland of St. Lu- cia, no fewer than 1800 were, in the courfe of a few months, fweptaway. After a long and fevere illnefs, and by the pure ftrength of his conftitution, he efcaped, my Lord, at laft, with his life ; but I cannot fay, fortunately efcaped, for he left the better part of him behind ; and from thence forward was no longer the man he had been before. Not only, my Lord, was there a great alteration of the temper and humour of the man, who, from focial, chearful, and good humoured, became fullen, jealous, and irafcible, and extremely changeable and uncertain, not only was there a decay of the vigour of his intellect a eonfufion, weaknefs, and cloudinefs of underftanding ; but there had come to be at times a plain derangement and dif- order and this to fuch a degree, as had on one occafion tempted him to turn his hand againft his own life, (as he is now charged to have done againft his brother's*;) and this an attempt of fo violent and ferious a nature, (by cutting himfelf very deeply in the wrift,) as occafioned him a confinement of three months, before he was again fit to come abroad. This, my Lord, had been his ftate for years. But of late, and recently before the event which gives rife to this trial, things had plainly been verging, (as happens with this muladv,) from worfe to worfe, into abfolute infanity and deprivation of reafon. Of which melancholy truth, my Lord, fo much were all about him, fo much was the de- eeafed himfelf convinced, (not to mention the many ftrong proofs of i r fhnt. jll be eiven you in his actions and con- ( 9 ) that every preparation had been made, the ftrait waifl-coat provided, a keeper engaged, and the pro- per attendants fummoned to the houfe, to reduce him, by main force, into a ftate of coercion as a madman, who - ft rye who was in the chaiie? The prifoner at tlie bar was ( II ) Did you obfcrve any thing particular In l,is ap^ pLiu-iiMoe ? He threw hi mf elf back, 'as if wiftiingto avoid being feeu. Did the chaife ttop r No. Lord Juit'ue C'ert. Were you going in oppofite di- regions? Yes. Mr Burntt. Had you any converfation with Mr Alexan- der Kinloch on this occafion? He exprtffca furprife, be- caufe he thou'ght his brother had- gone to London. Did Mr Alexander mention the day that he fuppofed his brother had gone to London r No. You pafied on to Haddington? Yes, end flopped at Mrs Fairbairn's. Did you dine at Mrs Fuirbairn's . Yes. Hid you any other company ? Yes, Mr George Somner, who dined with us; Did you fee Major Gor- don-Kinloch there ? I heard the noife of a carriage. I looked out at the window, and oblcrved that it was the lame chaik we had met* It flopped at- Mr Somner's fliop. Did you, or any of the company, go out ?-^-Mr Somner went out| and returned foon after, with Major Gordoh- Kinloch. Had you any converfation with '- he Major i 1 - Ves I aiked him how he was. He anfwered, he was very ill. Did he continue in the room with you, or did he go out ? He went out and returned again. How long did you remain in Fairbairn's houfcj and how did ths Ma- jor behave when he returned? When he came back, \vu preffed him to take a gJafs of wine and water ; and he was in to bad a itnte, that he was not able to carry it to his head. Did you go toGilnierton that night? Yes. Who went along with you? Mr Alexander Kinloch. Had you not occaiion to know that another perfon went along with Mr boniner? Mr Somner and the paam.1 let. out wit'u the intention of going to Gilraertoa, as they iaiJ. i^id they not go forward ? The chaife, in which the punuci tind Mr Somner were, ftoppcd at a place called burd-tail, about a mile from Gllmerton. We aiked theju why they iiopncc! "'. And tl'.ey iU;d ? To lau-.e \vutcr. Lord Lord Justice Clerk. Mr Somner made the anfwer ,' Yes. Mr Burnet. What paffed further? After they had ftopped a confiderable time, I afked What detained them fo Idng ? and Mr Somner aafwered, That the Ma- jor had gone away. Was a poftilion fent after him ? One of the poftilions was fent to look for him : He came back, and informed us, that he had overtaken the Major, who laid he was going to Haddington, where he faid he would be found. Did you then go on to Gilmer- ton ? Yes, we arrived there a little after ten at night, Did both chaifes go on ? Both. Do you remember of any thing being taken out of the chaife in which the Major was ? I think there were fome things taken out,< but I was not prefent What happened after your arrival at Gil- merton relating to the Major ? Mr Somner came into my bed-room in the morning, told me, thtt he was going to Haddington to look after the pannel, and defired me to follow him as quickly as I could. You went to Hading- ton then ? Yes, after breakfaft, and enquired for the Major, but could get no information of him. Did you go back to Gilmerton that day ? Yes, I returned before dinner. Was Sir Francis Kinloch at hopie ? Yes j alfo Mr Alexander, Mifs Kinloch, and a. Mr Low. Do you remember any thing that happened after din- ner ? 1 remember there was a meflage brought to me, that fomebody wanted to fpeak to me.- About what time was this ? About half an hour after dinner. -When was din- ner ? We fat down to dine about five. Who was the perfon that wanted you ? It. was W illiam Reid the gar- dener ? What pafled between you ? He told me that he had been up at Mr Walker's of Beanfton, and that he had fecn the Major there, who was in a very dii'agreeable fi- tuation indeed. That he went up flairs, and knocked at the door where the pannel was. That the pannel called out who was there, and the door was half-opened from within. There was no body in the room but the pannel. He hfd a piilol in his hand, which alarmed Reid ex- ssedingly. Lord ( '3 ) Lord Jufttce Clerk. He had a piftol you fay? Yes, my Lord. This is all that William Reid told me. Mr Burnet^ How did you proceed ? I called Sir Fran- cis out of the room to inform him ; and the pannel ap- peared foon after I obferved him, before he came' up to the houfe, from the window of the lobby. Did he come into the houfe ? Yes, he came into the lobby What converfation pafled there ? Very little. Lord Advocate, Da you recoiled any part of that con- verfation ? His brother and I enquired how he did, and he faid, Very poorly. Mr Burnett Do you recollect where he went next ? By the defire of Sir Francis, who took him by the arm, he went to his own bed-chamber, and I returned to the dining-room. What happened next ? A meflage was foon after brought to Mr Low, that Sir Francis had been taken very ill. and could do no bufmefs that night ; upon which Mr Alexander Kinloeh left the dining-room, and went up flairs, and fhortly after Mr Low went away. Had you occafion to leave the dining room, and go up ftairs? Yes, to the Major's room. What converfation had you wich the Major? I do not recollect. Was the Major in bed ? He was lying on the bed, and' part of his clothes were off. Do you recollect any converfaticn that palled ? The Major fpokc, and converfed a good deal with his brother Sir Francis ; but I don't recolleHhe purport of the converfation. How long did you remain in the room ? Not long. I was there occaiionally. The fa- mily went to fupper about eleven, but the Major did not come down. Was Sir Francis in the room? Yes. Lord Advocate. You few thepanWl before at Fairbairn's, and afterwards at Gilmerton, Did he appear in a better or worte fituation at the latter period th^n at the former ? He appeared a great deal calmer, frcm the attention of Ills brother Sir Francis. Do you recoiled the fubituncs of what pa fled in converfation? No. Did he hold any ir- rational or incoherent converfation, either in your t-r i js brother's prei'ence before fuppcr ? I cannot fay. D'-l any Chin* ( 14 th'itfg pafs, which impveffed your mind at the time* thiom the year 1762. Were y<,u intimate from the year 1780 downwards ? Yes. "When did Sir David die? In February lail. Was the pannel fit that time in the houfe? Yes. How long did be continue after ? I cannot fay j I went away. Di,d Sir Francis ever g.> from home at any time, and leave his brother, his filter and you, at Gilmerton ? Yes. I cam? into Edinburgh before the Seflion rofc, and before that time, Sir Francis had gone to Edinburgh. Did you re.- inain at Gilmerton- during the time of Sir Frsicis's fib- ience? Ye. Who s^ed as landlord then :' The Ma- jor. During any time previous to the 12th of March, Had you occafion to obferve any thing particular in the conduct of the prifoner? Nothing, except that he was cHfiatisfied with his father's fcttlements. Dot's it confiil \vith yoaf knowledge, that Sir Francis had any parcicu- jUr re&fpti >c going to Edinburgh. Yes, it was to take the the advice of counfel on his father's fettlements. Do yo.s not know, that it was on account of the diffatisfa&ion that the pannel had exprefled ? Yes, from the time that Sir Francis left oilmerton to go to Edinburgh, till the day that the witncis left it alfo. Did any onverfatio pafs on that topic ? Yes. What was the tendency of that converfation ? The pannel exprefled his diflatisfaftion in ieveral con verfat ions. From the year 1780 downwards, Did you obferve any thing particular in the condudl of theprifoner? He was remarkable for being exceedingly troublefome when he got drink. Do you recoiled any other peculiarity ? He was fometimes not correft, not lane. Do you allude to the time he was in liquor or otherwise ? He was confined for infanity once in Edinburgh. Do you recolleft when ? It was a few years ago. Is it from that cirr cumftance, or any other, that you formed your opinion of him being infane? It is from that circumftance, together with other appearances. Of what nature were thefe other appearances? That of being troublefome in company; and, at a former period of life, he was one of the moit mild and pleafant men in company I ever faw. Did you ever ob- ierve any appearances, when fober, which could induce you to fuppofe him infane ? I remember once, fome years ago, that he came to my bed-lide,in my own houfe, about five in the morning, and faid, he was going to fet off for Greenock to fee Major Mackay. Z. J. Clerk. Had he not been in town ? No ; he had been travelling all night. Was he fober ? Yes. Lord. Advocate. Was it from his converfation or appear- ance that you judged him infane ? From both. Did he tell you his purpofe in going to vifit Major Mackay? No. Nor where he had been? Yes, at Berwick. Did you attempt to difiuade him ? Yes. Did he ftate any reafcn why he was going to fee Major Mackay ? None. Did you take any fteps in conference of this ? No. Did you ever communicate to his family the opinion you had formed ? I think that I muft have mentioned to Sir Francis, that I thought him infane. Do ( '7 ) Do you know of any caufe of enmity, or of any grudge, fubfilting between the pannel and his brother ? His' con- duit when in drink was very extraordinary. Do you re- member any thing more remarkable than another? I re^ member very high words paffing between them, and the prifoner ftruck Sir Francis. Did Sir Francis give any caufe for this ? He certainly was in a great pnffion. Was there any caufe for this paffiori? The pannel had giyen great abufe to a gentleman at his father's table, and Sir Francis reproved him for it. He ftruck him with a glafs tumbler, and wounded him upon the face. Were you prefent at the abufe that .had taken pla'ce? I was. In your opinion, was the abufe iuch as to juitifyi Sir, Francis for taking his brother to tafk ? I think it was. What happened in confequenee ? I curried Sir Francis up flairs and dreflfed him. Sir David, was not informed of it then ? Not for fome time. Does it confitt with your knowledge, that the pannel was obliged to. leave his fa- ther's houfe on account of this mifunderftanding ? I think he was. How did Sir Francis take this behaviour? He forgave him. He did not feel any refentrnent. During the laft years of your acquaintance with the pannel, was he accuftomed to leave the houfe fuddenly, without warning, or telling where he was going ? Yes. And did he come back, without telling where he had been ? Yes. Were any fteps taken, or propofed to be taken to confine him ? I never heard of any during all this time, till immediately before the prefent event. I mean till after Sir N David's death. Mr Bur net. Had you occafion to know that the Majoz? came to Edinburgh, and refidtd there fome time befor*- ,iis brother's death? Yes. How long before his death ? A few days, and he lived in the Black Bull Inn. In what-ftate did he appear ? Was he able to converie on general lub- jetls? He was. Do you remember any difference in his appearance from what you had lecn at Gilmerton ? I thought he had been living harder then ufual. D:4 you obferve any other alteration ? No. G t.d r Ld. Advocate. You tell us you rever knew of any fteps being taken to- confine him ? None, until I went to Haddington. When? On the Monday evening. Was that the firlt time? Yes. What induced the family to do this? The deranged date he was in. Were any Iteps actually taken ? -Mr Somner returned from Gilmerton to Hading- ton, for the pu'rpofe. Was there any preparation made in the courfe of Tuefday ? None, till Tuefday night. The pahnel came home about Six, and Mr Somner was fent for about ten ; and it was propofed to fe- cure the panntl, but Sir Francis delayed it. Who pro- pofed it ? Sir Francis himfelf propofed it. DUNCAN AWMiiLAN, ^rtft examined by Mr HUME Deponed, That the pannel, wjien in Mrs Fairbairn's, at- tempted to fwallow a bit of meat, and could not : That his brother Alexander aflifted him to carry the glafs to his head, on account of the {baking of his Tiand : That he was Unquiet and reftlefs ; kept walking backwards and forwards through the room, and went out to the ftable-yard and garden : That he feemed opprefled and unhappy, and hardly joined in the converfation: That he gave no reafon for his purpofe oLgoing to Kdinburgh, nor for returning to Haddington, nor for calling at Mr Somner's : That the agitation of his perfon, and the fliaking of his hand, appeared to the deponent to arile from illnefs, and not from liquor : That he did not prefs drinking, or ihow any defire lor it ; on the contrary, drank lefs than others of the company ;. and that, of courle, they would not have affifled him to carry the glafs to his head, if they had thought that he had already got more than he was the better of: That Mr Soin- r.er gave directions to the hoiller to look after him, as ap- pearing to be ill and deranged, and unfit to take care of himfelf: That on the evening, when the pannel ftruck his brother, it was aftei fupper, and the bottle had been on the table, and the party drinking from dinner to fup- per: That, on the evening of Tuefday the i4th, Mr Som- i 19 ) er had brotight a ftrait waift-coat with him to be put ofc the pannel, and a nurle or keeper to attend him. Lord Jufttce Clerk. You have deponed to various meetings with the pannel before the accident happened, Now, according to beft of your judgement, was he in a capacity to know the difference between moral good and evil, 'and to know that murder was a crime ? I cannot fay. Say to the beft of your judgment ? T think he was in a capacity to judge between good and evil. Lord EJkgrove* Had you any reafon to believe, that the prifoner was acquainted with the coming of the wo- man from Haddington ? No. Mr TROTTER, (one of the Jury), Did Sir Francis, after coming out of the Major's room, on the night on which the accident happened, fpeak as if there had been any difference that night between him and the Major ? No.* GEORGE SOMNER, furgeon in Haddington, examined ly Mr Solicitor-General BLAIR. Were you well acquainted with the deceafed Sir Fran- cis Kinloeh? Yes. Do you remember of receiving a meflage from Gilmerton on Monday the 1 3th of April laft ? A. meflenger came from Mifs Kinloeh, defu ing the wit- nefs to come immediately arid fpeak to her. I went theie about one or two o'clock. What converfation pafled betwixt Mifs Kinloeh and you ? It was to pre- vent Major Kinloeh from going to Edinburgh, for fhe thought nim in a very unfettled ftate of mind, and not fit to undertake the journey. Did you fee the Major? I fa\v him before I faw Mils Kinloeh. He was in a poft- chaife at the door. He faid he was going to town. Did he accordingly fet out ? Not immediately. I obferved him in the chaife very much agitated j and, frt.ni his appearance, iufpeaed * 1C xvai uncietftood that this, and the five fucceeding wit- nefles, were to be called back, and re-examined, at the inftance of the paunel ; but ibeir exculpatory evidence was chiuiatc.y <4ifpenied with. ( 20 ) fhfpe&ed it to be on his account that Mifs Kinloch had fuit for me. What converfation had you with Mils Kinloch ? She told me that he appeared in a ftrange fituation ; that he had come there on the Sunday, with the buckles or firings out of his fhodB. What did you fay ? I told her that, from the obfervations I had made njyfelf, I concluded him per- fe&ly mad, and that he fhould not be allowed to go about. What were the c jrcijmftances that made you think ib ? From the appearance of his eye, and the agitation in which he feemed to be. Has it beep common for you to attend mad perfons? No. What farther paffed? J went down flairs to try to ftop him from- going away. I told him, if he would wait pill I got fome little refreshment, I would go with him to Haddington. This was the argument I made ufe of to induce him to come out -of the chaife. What did he to fay this ? That he could not flop, as he would be too late for diviner at Kdinburgh ; and he accord- ingly ordered the poftilion to drive on, and drove away. After this, had you any further converfation with Mifs K'uiloch ? Yes. I urged the propriety and neceffity of con- lining him. I told Sir -Francis the fame tfying that I had told Mifs Kinloch ; and he exprefled a defire, that I might follow the 'Major to Edinburgh, and take the advice of the two Doftors Homes as to what flrould be done. Did you return to Haddington that night? Yes. And, when I re- turned there, I received a meffage from Mr Alexander Kinloch and MrM'Millan, who were at Mrs Fairbairn's, defiriilg me to go there. I went there, and faw Mr Alex- ander and Mr McMillan, and told them what hadpaffedat Gilmerton. They told me, that they had met the Major going to Edinburgh. After dinner, Mr M' Millan obferv- <:d the chaife in which the Major was. It was driving as Jf he had been coming from Edinburgh. We looked to fee , which way the chaife would go, and , i't flopped at my fhop door. I went down, and a Iked him to come up to Kairbairn's. He agreed to come. He fhook hands with his brother Alexander, faying, he was very ill, and would neVer be better. He then walked about the room in grear gi'eat agitation, and fhakiug his head ; and he afterward^, left the room. Did his brother or any body afK him tq itay ? We all afked him to flay and take fome dinner, and either go to Edinburgh, or return to Gilmerton. What did he fay ? He tried to eat and could not, and he feme- times fat on the forefide of a bed, which happened to be in the room, but would not lie down. Did he after- wards agree to go to Gilmerton? Yes. I went in one chaife with him, and Mr M* Millan and Mr Alexander went in another On our way, the pannel defired to get out of the chaife. Did he give no reafon ? No. Did he return? No. I defired one of the poililions to go after him. He faid he would not return, becaufe he was going back to Haddington. What was dom: then ? We went on to Gilmerton. About what time did you arrive there? Between nine and ten. Did you (lay all night? Yes. Were Sir Francis and Mils fti'riloCb thert r Yes. How long did you ftay at Gihnerton ? I liaid all night, and returned next morning. Did you receive any mtflage from Gilmerton the next day, being Tuefday the I4th of April? Yes. I received a card from Mr McMillan, informing me that the Major had arrived, and defiring me to come down, and bring what was neccffary. What did you underhand by this? I underitood, that it was meant to confine the Major, and chat I fliould bring a ftrait waift-coat. 1 accordingly fet out, and carried with me a ilrait waift-coat, and fent for a nurfe, who fometimes attends deranged people. And you went to Gilmerton with the nurfe ? Yes, and I ar- rived there about 10 o'clock at night. After your ar- rival, did you take any meafures ? I went to 'the Majot^ and found him pretty quiet in his bed room, but {till with the fume wild look as the day before. Had y,m any coii- veiiation with Sir Francis, or any of the family, after you came ? Yes. Did you tell them, that you had brought the waift-coat. I certainly would. They agreed in tl.e propriety of fecuring him. What was your reafon for WOL fecuring him? I fpoke to the fervants frequently, the ]the butler, Mifs Kinloch's fervant, Sec. but the moft of them were either averfe, or afraid to do it. Do you know what made them afraid to do it ? No. Had you obferv- cd arms about the Major ? No, not then. You fupped at Gilmerton. Did you fee the Major? He came down to the parlour about three in the morn- ing. He came down twice. When he came in for the |Iril time, he walked about diftraftedly, and com- plained of a violent pain in his bowels. Had you any more converfation about the pain in his bowels ? He blamed, as the caufe, adofe of pills, which Sir Francis had given him, and which, as the witnefs underltood from Sir Francis, were analeptic pills. This was the firlt time, he fpoke of them ? Yes. He faid thefe pills had done him a great deal of ill, and he believed he was poifoned by them. I advifed him to go to bed ; upon which he left the room. Did you go up to his bed- room ? No. Did he come down again ? Yes. When ? Soon after ; with- in a very few minutes. Had you any converfation on that occauon ? No. Lot 4 Advocate. After you came with the ftrait waift- coat, d id you fee the Major at any time out of his own room, before he came down to the parlour ? I faw him once, and fpoke to him. I faid he had much better not go down in the fituation he then was in, for that Mifs Kinloch was not gone to bed. This was between one and two o'clock of Wetinefday morning ; and the Major had no cloaths on, excepting his breechrs and fhirt. Solicitor Gtneral. Tell us all that paffed Witntfs, I faid to him, do not go down in that fituation. He faid he would go down, for he wanted to fee Frank.' I took hold of him by the arm, and faid ibftly, u Dtar Sir, do not go down in that fituation." When I took hold of him by the arm, he drew a piitol. I let go his arm. He faici, take care of yourfelf. At that very time, Sir Francis was coining up itairs. Sir Francis faid, " Gordon, what is the matter r" He replied, u I do not knowwl at to do. Oh ! I am ill, I cannot fleep." Did you or Si/ Francis lay fay any thing to this ? The Major went into his room ; | believe Sir Francis went into him. I went down flairs Toon after. Stlicitor General. You have told us that he came down twice ? W'ttneft, Yes. This was before the firft time. Tell us what happened the fecond time ? He came down in the very fame diftrafted manner : He walked up and down : nobody fpoke to him. Sir Francis went out after him, then Alexander, and then I followed. Had he all his clothes on when he came into the parlour? I do not remember. He generally had one or botHhis hands in his breeches pockets* The piftol that I h^d feen, made me fufpe&, that he had his hands in his breeches pockets holding piftnls. From what part of his clothes did he pro- duce the piftol when you faw it firft ? From his breeches pocket. When I followed them as mentioned before, and had come without the parlour door, \ faw the flafli of a piftol. I was then between the parlour door and the trance. The flafh was in the ftair. Where was the pan- nel, and where was Sir Francis at this time? After fee- ing the ftafti, \ was fo confufed, that I cannot recollect ; but I heard Sir Frnacis cry he was done for. T ran up to them, The were ftanding in the ftair. Whether I affifted iu fecuring the pannel, I do not remember ; but' I Sir Francis in going up ftairs. After Sir Francis was car ried up ftairs, what did you fee ? I faw a wound about three or four inches below the breaft-bone. When he was laid in bed, I clrefled the wound. Did you appre- hend it to be mortal ? Yes. Did you or Sir Francis fay any thing during the time you were with him ? He faidit was madnefs in him to attempt fecuring his brother. I faid, certainly it was. Was there any other affiftance fent for? Yes, Dr Monro, Mr Bell, and my brother. When, did Sir Francis die? He died on the Thurfday evening, about II o'clock. Are you fatisfied that the wound was the caufe of his death; I am fatisfied it was Did 'you exa- mine the bodv along with the other gentlemen? Yes. Did you find the bullet? I was prefentwhen it was extracted, Mr.Bsllextrafted it, while Sir Francis was alive. The witncfs witnefsxvas fhewn a certificate of what had bean obfei'vwl in opening the body of Sir Francis after his death, and was afkedif he had figned this certificate? to which quef- tion he anl'wered in the affirmative. Did you fee the panne! again, or had you any conver- fation with him, after you went up with Sir Francis? I do not remember of feeing him till he was in Haddington Jail. After the piftol was fired, I remember nothing a- bout him. When did you fee him ? I faw him in Had- dington Jail, on Friday the i6th of April. What con- verfation pafl^d there ? I had no particular converfation. I went up with Dr. Home, and Mr Goldie the minifter of the parifli. Mr Goldie faid, that as his brother was now dead, it fell to him to give directions as to what was to be done at Gilmerton j for, though he was accufed of a moft horrid crime, yet he was not yet indifted, rror tried by the laws of his country. He replied, that he was in fuch a ftate of mind, that he could give no direlions or advice about any thing. The next thing that Mr Goldie faid was, that it was the opinion of lawyers, that he might, in the prefence 0f witneffes, appoint Mr Frafer and him to aSL for him. What anfwer did the Major make ? I do not remember the anfwer ; but he agreed to it. You faid the Major appeared in great horror : What did he fay ? He faid, it was a fatal day. Afterwards, Dr. Home afk- ed him, If he would with to fee Major Mackay and Dr. Farquharlbn. He faid, he would be very glad to fee them. Lord Advocate. When Sir Francis left th,e parlour, immediately before the accident, did you know for what purpofe he went ? No. What was your purpofe ? Sir Francis and I agreed as to the propriety of fecuring the Major, if he came in a fecond time ; but 1 did not leave the room with the intention of fecuring him. Did you lend for any of the out fervants to afiitt in feizing him ? I know they were fent for. Did you know that they were difrnified ? No. I did not fee any of them at the time the" accident happened. When did you fee any of I fav/ them between twelve /and tivo o'clock. ijot know tha't'they were lent home. Lord J'ltftice Clerk. , The laft time you faw the pannel, j-rtvious to 'the event that took place, Is it your opinion, that he was then in fuch a ' iituation, as not to diihnguiih moral good from evil, and not to know that murder was a crime ? I cannot fay. I do not know what he could diilinguiili, / Is it your opinion ? When I faw him on the Monday, and on the Tuefday, ] confidered him mad. Solicitor General. Was he mad to fuch a degree, as not to be able to diftinguifh good from evil ? I cannot anfwer the queftion in any oth^r way than that I thought him perfectly mad. Tlie tuitncfs ivas trdeftd to withdraw* Mr Hope. I could haye-wiflied, that a queftion of thi* nature had been allowed to uil fay, tlxat, as u profcllional man, he could not anfwer it other- wife than he has done. My Lords, I urn not of the wit- nefs's pi-ofeffion ; but, as a maji who has paid feme at- tention to the human mind, and to human nature, I muft repeat, that the queftion was ani wcred as it ought to have been. My Lords, I 'have made fome obfervations on maJmcn myielf. JPerlbns in ihat unhapj.y fituation are too often expofed to the impertinent vifits of ilrangers j at leaft, it ufed to be fo in London : and wel] I remember, \v f hen at an early period of lif;c, led by the idle curiolity of a boy, I have gone to view the places of their coufiiieiner.t. But, I) iy :*?y Lords, I hnrdly ev*r faw a man fo mad, (though ly- ing, naked, and chained, on ft raw,) who, if the abftraft queftion were put, Do you think murder a crime ? would not anfwer in the affirmative. Madmen, my Lords, will often talk rationally on any fubjeft, until you come, acrofs that particular topic, which has deranged their underitanding. I therefore fubmit, that it is TK-*: proper to pr'tfs the witnefs for a more particular anfwer, Has he not faid, that the Tannel was perfectly mad? The profecutor talks of degrees 'of madnefs, but there is no de- gree in perfect ma ; aefs ? tohis is already the fuperlativ degree. And when the Svitnefs, a profeffional mar, \ declared, that he. cannot a ifwer the qutftion otherwife, I fay, that any other anfwer; which he may give, cannot be an anfwer according to his confcience. IVJy Lords, had not the svitnefs been a profeffional man, I fhould not have infifted fo much upon the point ; but as a man who, from his profeffion, mutt know fomething o the nature of this difeafe, I do repeat, he could not have anfwered the queftion in any other manner ; and I do fubmit, that he cannot be forced to give any other an- fwer than that which he has already given. Lord Advocate. My Lords, I do hot intend to prefs the witnefs any farther on that, point. If my brother fuppofes that I meant to prefs him to make tn anfwer contrary to his confcience, that I meant to pufli him to give me a different anfwer from that which he has cho- ien to give, he has much miftaken my meaning. When I proceeded to prefs him a little farther, it was only to difcover- what was meant under the words u perfectly mad." What I mean to, prefs from him goes thus far, to fee whether the fame general queftion, at any particu- lar period of time, will receive the fame anfwer. i'his I contend, I am entitled to do ; and I fliall judgs from the anfwers that may be given, .what inference i lhall draw to the jury. The _' b'vly, mention in what fituation he \vss? When he after?,' J i'.'i.l lie was. very poorly. Did he underftand the anfwetf" th it V.MS made? lie feemed to be forry. How long wa$ he in that fituation ? Till Wednefday night. When he was conveyed to Haddington Jail, who went with him? Mr Hay Smith, writer, from Haddington, ac- companied him in, the carriage. Did lie fay he was forry -for what he had done? No; bu; 'he feemed to be forry, and fomctimes appeared not to underftand what was faid. . GEORGE DOUGLAS, crofs examined ly Mr -H'uME. . Deponed, That the pannel, after being fdzed, faid to Sir Francis's fervant, that his master had poifoned him, and. that otherivife he lusuld net have den? to him tvhat he dul ' That the pannel, at the time of doing the deed, was* in no condition to make his efcnpe, having nothing on but; .bis breeches and a great coat. ALEXANDER CAMPBELL, examined by Mr BURVT > Were you a fervant at Gihnerton lalt April? Yes, I was poltilion. Do you remember Sir Francis being wounded ? Yes. At what period of the month did it hap- pen ? I do not remember the day : it was about the mid- dle of the month. Tell us- what palled ? I wns in the Butler's parlour, and heard the report, of a piftol between three and four in the morning, and went in^o the dining- room, where I fuw Major Gordon, and two or three ie'r- vants. Did you fee Sir Francis after you heard the re- port of the piftol? No.' Did you fee any piftol s ? Yes, t faw one in the hands of one of j:he lads. Did you takcj any pillols from the prifoner ? Yes, I toojc one from hii pocket. What pocket? He had on a greac eo breeches.- -*-T he piftol was taken out of his Is pocket. Was it' loaded? I believe it wa% but cajrtnoC fay for certain, as I gave it to one "of the d. ; (Hire the witnefs was (hewn a piftol.) Do yc- that piilol? Yes. It is one 'of them I law* ( 3* ) Yv r hat was clone with the Major after the piflols were tftken from him? There was a jacket put on him. War- he taken to his room ? Yes. What did he fay? He laid that he had been poifoned by his elder brother ; and that he knew he would have been feized, whether he had {hot Sir Francis or not. What more ? He laid that he would give them L.ioo a-piece to let him live one hour. What farther conversation patted in the -bed- room? Nothing more. Did you lee him carried away ? Yes, the fame night. Who went with him ? . Mr Smith from Had- dington. Juryman. Did the Major offer to ftrike you, when you feized him? 1 No; he fuffered us quietly to put en the jacket. ALEXANDER CAMPBELL, cnfs interrogated ly Mr HITMI. .Deponed, that, when the piilol was fired, the pannel had on a great coat, breeches, fhirt, and (lockings, but was without his wailtcoat, and he thinks had nothing on his feet : That he certainly had not flioes on ; and, if he had any thing on, it was oaly flippers,, WALTER GIBSON, examined by Mr BURNET, , Were you fervant to Sir Francis Kinloch ? Yes. Do you remember of Sir Francis being wounded in April ]aft ? Yes. Do you remember at what time it happened"? - It was about three of a Wednesday morning. I was in the butler's parlour, and heard the piftel-difchafged. Did you ailift in feizing the Major? Yes. I took a piftol irorn his pocket. Was it loaded ? I believe fo. What paffod when you bound the Major? He fpoke * gosd deal While we were binding him. He called out, that he had been poifoned by his brother.. Did he fay any thing belides ? He cried to let him alone, as he would live but one hour. Any thing more ? I do not recollcdl. What did you ds> with him after he was bound ? He,- was carried to bed. WALTER GIBSON, croft examined 6y Mr HUME Deponed, That the pannel, when he fired' the piilol, wa* JR&t ( 33 ) Sot in condition to efcape or leave the houfe, being with* out his {hoes, and as he thinks without fome of his clothes : That Sir Francis, on being told that the pannel was fecured faid, Poor unhappy man. And that Sir Francis, on the Wed- nefday evening, on being told that the Major was carried to Haddington, faid, u What are they going to do with hint " there. Why dont they carry him to Edinburgh ?" but whe- ther he meant to a goal or a madhoufe he did not explain. ALEXANDER MENIE, examined by Mr BURNET. You were butler to the late Sir B rancis Kinloch ? Yes. You know that he was wounded in April laft? Yes. Were you in his bed- room after he rceived the wound ? Yes. When there, Did Sir Francis fay any thing about the wound, or the perfon that had given it him? No, How long did you remain in the room ? About three quarters of an hour. Were you frequently with him be- fore he died ? Yes. On thefe occafions, did you hear him, fay any thing about the pannel ? No. Did you fee the pannel during this time? No. I did not fee him till a fort- night after. Lord Advocate. How long have you been in this fami- ilr ? Nine years. Did you ever, during thefe nine years, hear any of the family fay, that the pannel was infane ? I overheard old Sir David fay to a gentleman, that Gor- don was juft going mad again. Was the pannel in the houfe at the time? He was flaying at Gilmerton, but was from home on a vifit. Did you obferve any appearances of madnefs about him yourfelf ? I obferved him unlettled. Were any Heps, or any advice taken in the family about him ? Not fo tar as I know. Did he continue to. come about the houfe, and to be inthe fame way as formerly ? Yes. HAY SMITH, ivriter in Haddington, examined by Mr BURNET. Do you remember being in the houfe of Gilmerton on the Wedr.efuav night after Sir ft rancis was wounded ? Yes. E Hud C 34 J ftad you occafion to fee the Major? Yes. What v?a the occafion of your going there ? I went as a nitffenger to take him to Hacldington Jail. Whp accompanied the! Major and you to Hadclington? A fervanl. Lord Advocate. Do you remember any thing that paf- fed while on the road? The Major was in great diftrefs, but faid nothing. Did any thing pafs when you got to Iladdington Jail? I put him into a f mall apartment, and went to inform the Provoft, who ordered a better apart- ment. When vow firft faw him, Who was with him? I went up with Mr Goldie the minifter. Did the pannei hold any converfation with you ? He converfed with the minifter. Did the anfwers, which he made to Mr Goldie, appear to you collected and rational? Yes. Do you re- collet any particular topic ? Not, when I was firil in his room. At the time I went up to take him away, which was about eight in the evening,, he afked me as a lawyer, to take a proteft againft thefe proceedings, and then ap- peared very confufed. Did you fee him again ? Yes, in Haddington Jail. How long did he remain there ? Three or four days. Did he upon thofe occafions, when you faw him there, return rational anfwers ? He did. Did you accompany him to Edinburgh? Yes. What conver- fation paffed? About the weather. Was he rational ? Yes. \ BENJAMIN BELL, Surgeon in Edinburgh^ examined by Mr BURNET. Were you fent for to Gilmerton on the ijth of April laft ? I was. Were you informed of the purpofe for which you were called ? I was informed at Gilmerton of the bu- iinefs. I was told that Sir Francis was fliot that morning. Lord Advocate. What paffed when you faw Sir Fran- cis ? 1 found him lying in his bed in great diitrefs. He had been (hot under the breait-bone jDid you believe the wound to be mortal ? From all the ymptoms, I judg- ed him to be a dying man. Did you remain in the houfe till Sir Francis died ? No, I waited till fix o'clock next morning, ( 35 ) .morning, n^t thirkinz it neceffaryto remain Tender. Are vou of opinion, ihat the wound was the caufe of his death? Yes. Did Sir Francis hold any converfation with you con- cerning the perfon who wounded him ? He never did ; except aiking what was become of that unhappy tn n Did he not n:ime the perfon? No. Did Dr IMonro at- tend? Or Monro was fent for along with me, but did n? t go. When you firft of all examined .the wound, on Wed- nefday morning, did Sir Francis tell you how he had g -.t it ? I had been told, that the perfon who fired the pillol WMS uppermoit in the ftair, and therefore, I imagined the ball might have taken an , oblique direction ; but Sir Francis gave me a diitincl account of the accident, by \vhich I underftood, that the ball had gone right acrofs his body j and I felt it with my hand near the back bone, from whence it was extracted. Did you open the body after death? Yes, in company with MtfT. Somners.' There was a report drawn up. Would you know the report again? Yes. (Here the report of what had been remark- ed OR opening the body of Sir Francis, was (hewn to, and recognifed by Mr Bell.) How did Sir Francis deferibe the fituation of the per- fon who {hot him ? He faid, he was finding on the fame ftep of the ftair with hirnfe'lf, and that the piftol almoil touched his body ; and this account tallied exaflly with the fituation in which I found the ball. Lard Justice Clerk. Did he name the perfon ? No, he never named him. (Here the witnefs was fliewn the ball which he had ex- tradted from the body of Sir Francis Kinloch. It was wrapped in a piece of paper, upon which Mr Bell had marked the initial letters of his name.) Lord Advocate. Did^ you know the family of Gilmer- Jon before this accident ? Yes. I foniitimes attended tha jUte Six- David. When you went to Gilmerton on thefe QCCUilUlljS, ( 36 ) oceaftons, did you fee the pannel ? Yes. Did you ever know, or understand that the prifoner was infane ? I ne- ver did. Had you oceafion to attend the pannel fince the 24th of May? Yes. At -Mr Warrender's defire, I have attend- ed him in Edinburgh Jail fince that time, twice a-week. Now, I afk you this as a profeffional man, Did yeu ever fee, believe, or judge him to be under any degree of in- faniiy ?. I never did. He always behaved with proprie- ty ; but h'e appeared under great anxiety of mind, and dtpreffion of fpirks. Did he leem to know his fitaation? Yes. Mr BENJAMIN BELL, crofs examined by Mr HUME. Deponed, That he vifited the pannel twice a-week, front the 2^.th May, and fometimes remained with him from 15 to 20 minutes : That he generally fent up previous notice of his being there : That he cannot give an opini- on upon thefe his vifits, that ,the pannel might not be furious on the I5th of April, nor ever that he might riot fliow fymptons of derangement in the intervals of his vHits ; for that the Hate of infane perfohs is liable to fudden and unaccountable variations : That he could not pretend to know a madman by the ftate of his pulfe, or the feeling of his '{kin-; for that, though, in the beginning of infanity, there is often fever, yet a confirmed itate of infanity is not ordinarily attended with any ; and that, in this, the delirium of a fever is diftinguifhed from that of infanity: That madmen very often can diftinguifh their keeper, or others who are much about them : That in many inftances, they are capable of diiiimulation, and fliow cunning and contrivance to gain their ends : That one of the moil conftant fymptoms of madnels, is a jea- loufy of plots and confpiracies againft them ; and that inoft frequently the objects of thefe fufpicions are their beft friends, or the perfons to whom they, had been moft attached : That the moft certain means of diftinguifh- ing a madman, are ift t By his actions and conducl ; and, C 37 ) - a^/y, By the appearance of his countenance, efpecially of his eye, which has a peculiar wildnefs : That r.-ftlefs- nefs, want of deep, odd poftures, ftrange geftures, . and the like, are alfo among the indications of the mala- dy : That if a perfon has been fubjeft to occafional de- rangement, and ftiould fwallow a great quantity of lau- danum, this, in his cafe, might be more apt to produce a furioflty of a few days, and the perfon afterwards make a quick recovery, than in the cafe of a perfon who had never been fubjeft to fuch diforder : That the con- finement, folitude, and quiet of a jail, would be likely means to promote and affitl fuch recovery. Dr. ALEXANDER MONRO, Phyfician in Edinburgh, ex- amined by Mr BURNET. Have you attended the pannel in Jail? Yes. How often have you vifited him? four different times fince the 24th of May. What fituation did you ufually find him in with regard to his mind? I faw no marks of infanity. Did you converfe with him ? I did. Did you feel hia pulfe when you vifited him ? Always, and I found it calm and regular. Dr. MONRO, crofs examined by Mr HUME. . Deponed, That he had paid the pannel four vilits in Jail after the 2,4th May. Being alked the fame quetlions as Mr Bell, he made the fame anfwers in fubftance; and in particular, being aiked, whether madmen were more apt to be jealous of their enemies or of their friends and near connexions ? He anfwered, That their friends were moft commonly the obje&s of their fufpicion, and that he thought it natural it Ihould be fo ; for as madmen were not fenfible of their own condition, or of the neceility of ref- training them, and as friends and relations were chiefly alive in controuling or impofmg reftraints on them, fo thefe perfons irritated them, and in confequence be- came the objedls of refentment. He added, that in his vifits to the pannel, which might be from 7 to 15 minutes, he he avoided any topic that could irritate him ; and that if he had remained a whole, or half a day with him, he could t>etter have judged of his condition : And, upon the Whole, That he could only give an opinion as relative to the times and occafions when he faw him, and nothing Lord Advocate. Did you ever, in the courfe of your pra&ice, know a perfon who went mad for forty-eight hours, and then recovered and continued well? Never, except when the perfon hadfwalloweda great quantity of liquor, or owing to tome adventitious caufe. Mr Hope. May not a perfon, who has been fubjecl to fits of madnefs, become fuddenly infane, and recover again ? He is more apt to do fo, than a perfon who never was infane. May not the taking of laudanum, by a perfoa *vho has been occafionally infane, produce a fit of infani- ty? Yes. CHARLES HAT, Ffq, Adwcate, examined by the Solicitor- General. Were you well accquainted with the late Sir Francis Kinloch ? I certainly was Did he confult you upon any points after his father's cleath ? He did afk my opinion refpe&ing his father's fet- tlements fometimes after his death. Will you be fo good as mention every thing which you remember that palTed between Sir Francis and you upon that occafion ; and, in particular, any thing refpe&ing dif- ferences which had occurred between him and the pan- nel. Mr Hay, (addreffing the Court.) My Lord, it is a deli- cate fituation in which I ftand, I am called upon to give evU dence, not to fafts confident with my perfonal knowledge, but to difclofe convcrfations of a confidential and private Mature, that pafled between Sir Francis Kinloch and me, J>ot only as a friend, bui in my profeffional chara&er of a , iawyer. I fliould therefore be glad to know from th canon to mention, that his reafon for coming to town, was to advife with his friends concerning differences which had arifen betwixt him and fome of the other branches of the family, concerning his father's fettle- ments, or rather after incidents. Mr Bur net. Explain what were thefe after incidents, and with what branches of the family thefe differences had happened. Mr Hay. Sir Francis told me, that oft?|- Sir David's fettlernents were opened, appointing him his father's' fgeneral dipo-nee, he, having got the key of the repolhory in which Sir David lodged his papers, obferyed, that Sir* David had been accuitoraed to preierve almoil every let- ter tliac he received, on matters of trivial importance-, fcnd othsr papers 'of no confluence, for which reafon, he ( 4 5 fie defireci Mr M'Millan, and Mr Frazer, fheriiF-clerk of Haddington, to feparate the rubbifh from the material papers, and to deftroy the former, which he underftood that they accordingly burned, or at leaft great part of it. This infpired a jcaloufy into the mind of his bro- ther the Major, that papers were deftroyed to the preju- dice of the younger branches of the famijy, which he communicated to his younger brother JVty Alexander; and it was en account of this mifunderftanding, that Sir Francis told me, he had come to town to take my opinion and that of Mr Solicitor-General on the fubjedl. Sir Francis then {hewed me the general difpofition by his fa- ther in his favour ; and, on reading it, I told him I was clearly of opinion, it was properly conceived, fo that it was impoffible there could be room for any difpute between him and his brothers, unlefs it fhould fo happen, that the claim of legitim to the younger children was not dif- charged in their father's and mother's contrail of mar* riage, in confideration of fpecial provifions being fettled on them, which I mentioned to him would probably be the cafe, as few contra&s of marriage were entered into, at the fight of regular men of bufmefs, without a claufe to that purpofe. I having then explained to Sir Francis the nature and extent of the claim ot legitim which would ly in this particular cafe, he immediately faid, that the pro- vifions fettled by Sir David on the younger children, were fuperior to what they could claim in virtue of the legitim, even if it were not difcharged ; whereupon I ex- prcffcd my fatisfaftion, that there could be no ground for any legal difpute, and it was fuggefted that there would be no nece'fity to trouble the Solicitor-General for any opinion on the cafe, at leaft till Sir Francis fhould have an opportunity of looking into his father's marriage-contraft, which he was not then poffcfled of. A great deal of con- verfation paflfcd upon the fubjeft, with the exaft particu- lars of which I cannot now charge my memory, but I am certain I have told the import of it. Had B id you any fubfequent converfation with Sir on this fubjeft? I called upon Sir Francis a few clays thereafter atDum- breck's hotel, where he was confined with a heavy cold, lie then 'defired that I would give him a written opinion upon the fubjeft of which we had formerly converfed, to be communicated to his brothers. I declined giving him a formal opinion, mentioning, that it occured to me, that a letter written, as from one friend to another, might have a better effeL Sir Francis agreed with me, and I ac- cordingly wrote, and delivered to him out of my ovvft Jiand, a. letter containing my fentiments. Mr HAY, croff interrogated by Mr HUME Did Sir Francis afterwards mention to you, that he had communicated your letter to his brothers ? In eight or ten days thereafter, I was with Sir Francis in a mixed company, and in a whifperafked him, Whether he had fliewn my letter to his brother^ ? To which he an- fwered in general terms, Uiat he had; but no further conversation paffed, and I never fawhim afterwards fo far as I recollect, as this was either the Saturday fe'ennight, or Saturday fortnight preceding his-deceafe. Did Sir Francis write fo you, complaining that your let- ter had not had the defjr^d effcd ? No, he never did. Ij.rd Juftice Clrek. Did you underftan.d that the diffe- rence between Sir Francis and the pannel had rifcn to a great height. To a very great height indeed. Tbt Reverend Mr Gv.oR&e. GOLD IE, M.nlfter of the Gof- pel at Athelftoneford., examined l>y Mr. BURNS r. Had you occafion to go to the houle of Gilmerton foon af- ter Sir Francis was wounded ? Yes, I went there on the morning afti?r the accident happened; I heard of it be- tween eight and nine, and immediately went down. Did - the Major ? Yes. What puffed? After I had beerT fome ( 4* ) {bme time in the houfe, I was made to underftar.d, that Major Gordon wanted to fee me. . I accordingly went up, and found him lying bound in bed with a ftrait waift-ccat on, and in a very diftrated (late. I aiked him how he was ; he anfwered u very ill." He then aiked me to fit down by his bed-fide. I did fo, and aflced him if he recolle&ed 'what had pafled? he faid he did." I afked him. If he was ot filled with horror at what he had done ? He anfwer- ed with a furious air, and in a low tone of voice uncommon- ly flern, " No." my own feelings were much dillrefled, and I exclaimed " Are you not filled with horror at the * l recollection of a deed tha has deflroyedone of the wor- *' thieft of men, and beft of brothers, a deed, that has *' thrown a family into a ftate of diflra&ion, and a whole " country into the mod extreme mifery?" He again anfwer- ed in the fame tone, that what he had done was in felf de- fence. " There was," (i'aid he) u a deliberate plan to form- *' ed to deftroy me." u W ho told you of that plan ?" He re- plied, * that he kne>v it well." " You could know it only (laid I,) " from the jealoufy, or fufpicion of your own *' mind, for the worthy man, whom you have dellroyed, was " incapable of forming a plan againft any human being." ** I fhall die, (faid he) this evening j my brother has " poifoned me. He has given me pills, which have al- " ready deprived me of the ufe of all the lower parts of my " body." I replied, I knew nothing about pills ; but, if he had got pills, they had been given him with a view to do him good, not to hurt him. Had you any further conver- iation ? He cried, to take away the people that were about him. I believe, he meant the woman, and the man fer- vant who attended him, who, he thought had a defign to murder him ; and he infilled upon me flaying with him Upon that account. He faid, he underftood there was no danger of Sir Francis. I anfwered, that whoever had told him fo, had been deceiving him ; for I had the belt authority, the authority of the medical gentlemen, for faying, that the danger was moft eminent, and that, in all probability hijs brother would be be a corpfe before even- ing u ( 43 ) ing Did you fee him upon any occafion in the afternoon? Yes. Towards the evening he became very outrageous, and attempted to burft aiunder his bonds. He cried, that he wanted to fee me ; and, when t went to him, he infilled that I {hould ufe every endeavour to fet him at liberty. He ordered the fervants to go out of the room ; for, he had fomething particular to fay to me. I defired the fervants to walk out. He then told me, that he muft be put in a chair before he could communicate what he had to fay to me. I told him, he could inform me of any thing very well where he was. He then told me, it was about money matters : he faid, he had feveral hundred pounds which no body knew of, and he wanted to fettle it. I told him there were men of bufinefs in the houfe, who might be confuked about that, and then fent to Mr Fra- fer and Mr Smith. When Mr Smith eaine into the room, he faid to him, " who has a right to ufe me in this *' tyrannical manner; is it not competent to take a pro- " teft agairift them?" Mr Smith faid, it could not be donel The Major then fpoke of fettling fome money matters; and Mr Smith having faid, it would be better to delay that buftnefs till afterwards, the Major replied, " why not now," u Procraftination is the thief of time." Had you occafion to fee him afterwards in Haddington Jail ? Yes. What conversation paCed there ? I told him, that I had come at the particular deiire of the friends of the family, to receive dire&iohs about the management cf affairs at Gilmercori. He declined giving any direc- tions, but left the whole to his brother Sandie. I in- formed him, that his brother was from home, and that the friends of the family were of opinion, that fome di- relions were abfolutely neceffary in the meantime. He faid, that the friends ought to do what they thought molt proper. I then told him, that the friends of the family had fuggefted, that Mr Frafer and I {hould be appointed to take the management, and that they wifhed to have his confent ; and that, if this propo&l met with his ap- probation, i 44 ) probation, I would write out, in bis name, and in- p r - lence of two refpeftable witneffes, a power to this effe&} to all which he agreed, adding, that he was in iuch a fbte, that he could not attend to any bufinefs. A pow- er was accordingly written in prefence of Dr James Home and Mr George Somner, and a claufe fubjoined, that, if Mr Frafer and I flioufd meet with any difficulties,. we fliculd take the advice of gentlemen of the law. The Reverend Mr GEORGE GOLD IE, crop examined ly Mr HUMK. Do you recollect what conversations you have had with tiic jjannel fnice he came to Edinburgh? I have feen him frequently in Edinburgh, and occaiionally mentioned to him how he had a&ed, and the fatal event that had taken place. His anfwers were various. At the times when fie was correct, he exprefled great regret that he 'had not been feized and difarmed before he committed the unlucky deed. It was not merely regret, he exprefled horror at the deed, and aitonifliment, from what he had afterwards leai'ned as to his fituation at the time, that it had not been put oulf of his power to do any thing of the kind. He blamed his friends in very ftrong terms, for having treat- ed him with fo much lenity. Had you any converfatir.n on the day of the accident, about an Engliih bank bill ? Yes. la the courfe of that day, at Gilmerton, when Mr Hay Smith was prefent, and it was propofed to make an inventary of the pannel's money and papers. He was afked, If he had any money in his pockets ? To which he anfwered, he had a bill for L-3o in them. Upon fearch- ing, I told him, I could not find it. He faid, he was per- fectly certain of having brought it to Gilmerton the day before. I then went down itairs, and informed Mr Fra- fer of this circumftance. Mr Frafer faid, " we know " about the bill ; he gave it to William Reid the gard- *' ncr Itiit night at Beaniton, who gave it to Sir Francis." I returned, and told we h?,d found it, and in what manner. He , ( 4J 5 He had -no recollection of having done fo ; and juft fai diffitisfa&ion on account of his - father's papers Being cleftroyed? No. From your knowledge of him, what was your opinion of his difpofition? I ul'td to be intimate with him : He honoured me with his confidence ; and I always found him humane, warm-hearted, and gener- ous ; in particular, I had occafion to find out by acci- dent, that he relieved a woman in great diitrefs. The poor woman was very ill, and I felt it my duty to pro- vide her with neceflaries ; but I found, upon enquiry, that the Majo had. been 'fupplyiwg her with money, and that he had done fo upon many former occafions. ALEXANDER FHASER,' Sheriff Clerk of the County of Had- dtxgtotj, fxamined iy Mr BIJRNET Were you in the ufe of doing bufmefs far Major Gordon Kmloch? Yes, I was his fa&or for fome years on the ( eftate of WoodhaJI, prior to the fale of' it near ten years a^go ; and after the iule of it, occafiortal!y did money bufi- ncfs for him down to .Sir David?s death. After Siir "1,'nvid's death, Did you do bufmefs for him? He gave me a fadlory to uplift annual rents and annuities, which was dated on the 3d of April lait. D<> you remember the day on which Sir Francis receiv- ed the wound? Yes, it was ' QQ a Wednefday. Did you iVc the pannel fmce that time ? I faw him on the Saturday before, in Haddingtou, but I never faw him fmce that buL- ncis. When you tranfa&eci bufmefs with the pannel, Did you think he undenlood whut he was about? Certainly, othcr- viTe I would no have don-j bufinefs for him. Here the witneis vvaslhcwnanJ identifesd a 1/tter ( 5 ') Sir Francis Kinloch to him, dated the 151!! of April laii, and referred to in the Indictment. It was eipreflld as fol- lows : " See if you can find out the marriage contract *' betwixt my father and mother, as alfo Lady Afhe's " contract, and lend them per "bearer, that they may be 44 laid before Charles Hay, along with my father's will. *' If Gordon and Saunders are' not pleafed with his opi- " ion, they muft judge for themfelves." The witnefs alfo read a copy of his anfwer to this let- ter, bearing the fame date, arid of the following tenor : " Your father and mother's contract of marriage has not " been found, but the infeftment upon it, which, with " Lady Afhe's contract, and alfo an obligation by Sir " Thomas Aihe, and difcharge by them both, making in u all four deeds, are herewitli fent. I have cominunica- *' ted your letter to both your brothers." Mr Burnet. Do you recoiled of Sir Francis going to Edinburgh, to take the advice of counfel ? Yes, 1 thick he went on Tuefday the loth of March. Do you recol- lect the reafon of his journey? Sir Francis told me at Haddlngton, that his two brothers had found fault with their father's fettlement, and on account of Sir Francis having burnt fome papers. I advifed him to lay his fa- ther's fettlement before couufel, to know upon what grounds he Hood, as the iboner he cleared matters with his bi-others .the better. Which of the brothers was moft diffatisfied ? He told me, that Major Gordon Kinloch egged on, or flirred up the other. Whofe advice did Sir Francis take on this matter ? He confulted Mr Charles Hay. The advice came in a letter. Sir Francis defired me to communicate the o\ inion to his brothers. I accordingly gave the letter to Mr M'Millan to be fhewn to the Major and Mr Alexander Kinloch? but' before I had recceived it, I had a converfation with both- the brothers upon the fubjeft, and particularly with this gentleman at the bar. The refult of this converfation was communicated to Sir Francis by letter. : Here llcire the v/itnefs read copies of two letters from him- ft-ir to Sir Francis, the one dated i6th and the other dated the xytli of March laft. That of the i6th was con- ceived in thefe terms : " Being v paly this moment come " home, I have only time to inform you that from, what, u paffed with both your brothers lal-l night it is almoftim- poliible that ar.y difpnte can arife. I fliall write more fully 4i to morrow." < The letter of the lyth of March was expeffred as fol- lows : " Having talked upon the bufmefs to the Major, 44 the only thing he dated as a claim is L 2,o, which he " laid he was paid fliort of the 1500. The particular * circumftarices of one of his commiffions rendered it un- ' neceffary to advance the L. 200, but he faid, that " though that fum of L. 200 may be fome obje& to *' him, yet that he never meant to have any ferious " difpute with you about it ; fo far from that, he is quite " ready to grant any di (charge that fliall.be afked of him. " He and Mr McMillan came up this morning with Mifs *' Altlori, and the Major 1 in the frankeit manner repeated *i the fame thing, which I told him I would immediately *' communicate," g " I had a converfatioti alfo with Mr Alexander on Sun- **. day night^ ahd I am in juftice bound to report, that he ** declared 'his perfect readinefs to fettle the bufmefs in *' the molt friendly mannei', reprobating every idea of a *-' cohtrary-^nature. In a converfation afterwards with " Mifs Kinloch, fhe informed me, that (lie clearly pointed 41 out to Mr Alexander, that he had cod a great deal " more than L. 6oc to his father, fo that he had no caufe " to complain." The witnefs next identified the following letter from Sir Francis to himfclf, without a date, but marked i8th , March 1795 on the back, and referred to in the Indict- rrient, viz. u I never looked on Gordon and Saunder ha- 41 ving ferious intentions of going to law. Their doing " fo would be more pleafant than talking about burning " papers, and talking nonfenfe, which can only originate " in human ir.firmiiy." Mr r 52 J Mr Eurnet, -Do you recoiled having any converfa^ibn n-kh the pannel refpe&ing a paper which he faid he had 1 ligned ? I remember, feveral years ago, he told me that he had figned a paper in the pretence ot his father, his bro- ther Sir Francis, Mr F. Anderfon, and Mr McMillan, which he believed was to difmherit him. I told him that it was impoffihle. About a week after- Sir David's death, ho fpoke to me on the fame fubjeil ; but as I found argu- ing the matter feriouily would not do with him, I thought it the better way to turn it itito ridicule, and faid, 4t Sir, " the peribns that you fay were prefeut, are all alive but " your father, Why do you not profecute and ex'poie " them." Do you commonly keep copies of the letters you write ? Yes. Is that the copy of a letter which you wrote to Ma- jor Kinloch ? Yes. The witnefs then read a ctfpy of a letter from jtimfelf to the pannel, dated the 2ift of ,April lad, and exprtffcd thus : "' As you was pleated lately to grant a ' fa&ory to K me, and to lodge papers of value an my hands, it ap- ' pears to me very proper to inform you, That in confe" *< quence of the late fatal occurence at Gilmerton, a trial muft take place, arid to know from you. if you wifli to retain counfel for your defence, which in that cafe fhall " be immediately done, and alfo to know who are the *' advocates and agent you wifli to be engaged." The witnefs then identified the two following letters from the pannel to him, -viz, Haddington Jail* %id April 1795. M Sir, 1 received your letter, latl night couched in a " ftile , not like the uiual, owing as I fuppofe, to the late " moft unfortunate occurrence. The rcafon of my not " feeing you, owing to your official capacity, I by no means " (if allowed to thinE,) a good one. I do not fee any *' impropriety in your coming to me once to confer on *' buiinefs. If after reaaing this, your opinion fhould be *' rtiil th^ f-irne, let me know ; and if my meflage was de- livered. at Gilmerton^ which \vas given to Mr Dodds.' ' Sir ( S3 )- " 3 I R, April 22. 179-5.' " Pleafe fend me the note of Mr Dairy m pie for ' L.fa, 2s." The witnefs next read a copy of his anfwer, elated the. 234 of April, and of the following tenor : " I received *' both your cards kite lad __ night, and not having been c informed that you was to go off this morning, I put off <* anfwering. them till ubout breakfaft time, when I was informed you was gone. The only thing that now requires an anfwer, is your demand to get up Mr Dal- rymple's note for L. 6i, is. The advice I got about your property .under my charge was, to advance the i-eady money for neceffaries to you, and confulting confel for your defence, if you chufe to retain' any. I accordingly intimated to Provoft Hillop, that all ne- ceffaries furniflied to you fliould be paid ; and I need not -re peat that I wrote you about retaining couniel.~ I was further advifed, that I was not warranted to de- " liver up any other part of your property hut by le- ' gal authority ; fo that I cannot comply at prcfent " with your requeft abotrc Mr' Dairy mple's note. At ' fame time, if the acceptor propofes to pay the con* " tents of it, it feems to me very proper, to take the " money, and lodge it in the hands of your bankers as " part of your prbpertv. Your m3kge to your brother ' was dclivere A, bat he returned no anfwer. ,"]Mr Gol- < die laid he would call." Lord Advocate. .The Gentlemen of the Jury will ob- ferve, that this letter alludes to the pannel's being re- moved to Edinburgh. The witnefs then identified tlie fclltr-vitig letter, which he had received trom the punnel by puit, and is referred to in the Indidnaent, viz. " SIR, Edinburgh Jail, 24/^ April 1795. " I wrote you frnrn lladuingron, lequt-iling you tf would fend the promiflkry bill of Mr Dalrymple of rt iixty* { 54 j e * fixty-lwo pounds, two {hillings. I do not mean that h fhould appear againft him. 7 ' Lord Advtcate. You have known this gentleman feveral years. Did you ever imagine he was inftine ? I have fometimes obierved him peevifti and difcontentd ; but I never faw any marks of infanity in his appearance, till Monday the ijth of April laft, when it occurred to me, from the recolleftion of fome circumftances in his be- haviour on Saturday the I ith, (on which d^y I had feen him at Haddington,) that, the ftate of mind in which he then appeared to be, had been in its progrefs on the Saturday. "What ftate of mind did you think him in on the Monday? Downright mad ; that is, he appeared to be deranged, or r.s if the rational powers of his mind had left him ; and Sir Francis thought the fame. Did you, fuch being your opinion, Propofe fe curing the pannel? Yes, I did. "What reafon had you for believing him deranged ? His wild ap- pearance and behaviour. I fhould have mentioned, that I was on my road to GilmeVton on the Monday, when a fervant met me, and put into my hands a letter from Sir Francis, which began with thefe words : " I am forry to " inform you, that Gordon is {lark mad ;" and Sir Fran- cis added, that George Spinner had been lent for, on account of the Major having told Mifs Kinlpch, that he had fwallowed poiibn, though, whether the cafe was fo or not, Sir Francis could not fay. Have you that card ? No. What became of it? It was torn in pieces, and committed to the flames. Sir Francis and a Mr Low, (\Vho happened to be at Gilmerton at the time,) having walked out, I was left with no other company than the Major, whofe behaviour, as he both fpoke and afted in a molt extravagant manner, rather alarmed me. At one time, hu brought into the parlour a blunderbufs, with which walked^he up and down the parlour, making many wild motions, and fometimes holding it in the polition of prefenting; and I had occaVion to fee- him put a flint into it, prime it, and load it with powder. At lengh, to my great fatisfadion, he carried it out, and placed it in a chaifc ( 55 ) ehaife which was waiting for him at the door, and juj which he left Giimerton. But while we were together by ourfelves, as already mentioned, I happened inadvert- ently to take Sir Francis's letter out of my pocket, ancl obferving the Major coming towards me, and being affraid. he would fee it, I tore it in pieces, and committed it to the flames -, and indeed I thought it a lucky circumftance, that he did not fee it. Did the pannel appear much agitated upon this occafi- cn ? He loaded the blundcrbufs with great difficulty. His hands (hook in a moil extraordinary manner. ALEXANDER FR\SER, crofs examined ly Mr HUME Did h appear to ycu,that all rilk of difagreement betweenSir Francis and the pannel was over, after the converfation you had with him? It appeared to me that all differences was at an end, and it gave me great fatisfaftion. What was Sir Da- vid'.; iettlement? The fum he left to each of the younger bi'others was L. 1500. Mr Alexander got only L. 900; but Mifs Kinloch explained to hin>, that he had coil his father a great deal more then the other L. 600, and he was fatisfied, Had you any converfation with the pannel abouf the re- nunnciation which he fuppoied he had ligned ? I had ; it ap- peared to me, that this opinion of his was wild and abfurd. When you were alone with the pannel on the Monday, in the parlour of Gilmerton houfe, Did you conceive your- felf to be in danger ? I felt myfelf in a veiy difagrceable and dangerous fituation. Did Mifs Kinlcch give you any in- formation of his behaviour on the preceding night ? Here the witnefs looked at fome' notes which he faid had taken in his calmer moments, after lie was in- formed -by fome of the gentlemen in Court, that he was likely to be called upon to give evidence in this trial. He then proceeded as follows, reading from the notes. When I arrived at Giimerton, Mifs Kinloch was in the parlour, and foon called me to the lobby, and in- formed me, thanhey had been much diflurbed and difcon- certed C 56 ) oerted, and even alrmed by the Major's ccnduft the pie- ceeding night ; that he had been very reftlefs, having gone from room to room, throwing himfelf upon the beds. She reflected upon hfs drinking too much brandy and gin' faid prefceeding night, and fhs alfo informed me, that he had told her he hadfwallowed poifon. Lard Adixcate. I mult objeft to this mode of proceed- ing. There can be no objection to a witnefs refrefliing his memory from notes, before, he comes into Court ; but 1^3 is not to prepare a paper, then come to the foot of this table, and read his narrative from beginning to end, and then to go away. That, I f*y, cannot be admitted as evi- dence. Lord EJkgrove> fignified that he agreed in opinion with the Lord advocate. The witnefs was ordered to withdraw. Mr Hope. My Lord, I truft I know fomething of law, and have ibme idea of common fenfe and reafon ; and I belitve, I know fomething of the law of evidence alfo. My Lord I admit, that if a witnefs were to take from his pocket a paper, lay if on tke table, and fay there is my evidence, and then walk away, fuch a proceeding could never be permitted by your Lordlhips ; but the cafe is very different, when a witnefs, after an affair has happen- ed, who becaufe he was not prefent at the accident, could not know or fufpeft that he was to b_e a witnefs, takes down notes as foon as he is infermed that he is to be cal- led upon, and looks at them here,to affift his recolie&ion on a fpecific queition being put to him. When I undertook the defence of the pannel, I felt it my duty to inveftigate the matter to the bottom, and to difcovir every thing that the witnefles could fay. In the courle of my enquiries at Haddington, I faw Mr Frafer, who told me feveral very material circumftances. I went to Gilmerton to fee what could be made out from the in- formation of the family, and there it was that I learned from tiie fervants that Mr Frafer had been there the day before the accident happened. When I ca^.eback to him, ( 57 ) next morning he had been recollecting in his bed, and now remembered a number of circumftances that had efcaped his memory on the day before. Then faid I, " Mr Fra- fer, put down in writing all that you remember, as each circumftance occurs to your recolle&ion for as you did not recoiled thefe things laft night, it is pro- bable that you may not recoiled them when you come before the Court, concerned and agitated as you may be." Now, my Lord, was there any thing improper in this? Court. No. Mr Hope. Then is not the witnefs bound, by the obligation of the oath which he has taken, to look at his notes ; for that oath requires him, not only to tell what he recollefts, but all that he knows or ftiall be afked at him. If therefore, a witnefs is confcious that things may have efcaped his memory, he is bound to refort to any means that can render him more accurate. If a witnefs takes' down notes at the time an affair hap- pens, he is always allowed lo refort to them to refrefti his memory. The cafe is the fame with a perfon who takes notes the moment he is told, that he is to be called as a witnefs. The notes are the beft evidence he can bring, and he is equally entitled to ufe them. Had it been, as the Lord Advocate faid, to read a pa- per from beginning to end, and then go away, the matter would have been very different indeed; but, my Lords, it was but on one queftion that the witnefs had recourfe to his notes, And how does the Lord Advocate know that he is. to ufe them any more ? I fay, in law, in reafon, and in juitice, he is entitled to ufe them when his recolle&ioti fails. I do not defire, that he ihall read his paper from, beginning to end, but only that he (hall be at liberty to ufe it occafionally to refrefh his memory. And I fay, with fubmiflion, but at the fame time with fome degree of confidence, that the judgement of the Court cannot be ctherwife. Ltrd Advocate. For all that I have heard, I ft ill feel rt H ;/:.; my ( 58 ) y duty to ftate t)~,e contrary opinion. My brother miC- underitood -my Meaning, if he thought T imputed to him any thing improper in the a^livity and zeal he has (hew?* in this caufe, much lefs do I care whether the paper was read from beginning, to end, or partially. I can have but one defire, in common with the Jury, the due adrniniftra- tion of Juftioe. But, my Lord, 1 repeat again, that my objection is well founded. If, in the courfe of examining any witnefs, he fhall find htmfelf at a lofs, and defires to eontult notes taken on the fpot, and at the very time a tranfa&ion happened, I fay it is competent for a witnefs fo to refrefh his memory : But it is not fo with notes taken at a diltance of time : they mull be taken immediately, becaufe it may be in the power of a witnefs, by the means of fuch notes, to make up fo conne&ed a ftory, that I defy the counfel on either fide to make out the fraud. I am far from faying, that this witnefs has any fuch defign. I am far from fuppofing that the gentlemen, \vho cor.duft this trial, could take any unfair advantage ; but, as public profecutor, it is my duty to prevent the efta- bliiliment of any bad precedent. What has been done in this cafe, may be done in others, by low attornies ; not by counfel, I cannot fuppofe it of them. I agree to this, that in general, if a wknefs does not recoiled, he may look at notes taken at the time. But I demand of the Court, if notes taken at a diftance of time, ought to be admitted in evidence. I aik you to judge. I am, bound to obey ; and to that judgement I always i'ubmit with pleafurc. 1 lliall only add, that it was held in the trial of Mr Home Took, that notes taken at a diftance of time could not be ufed by a witnefs. The point was long and ably- contended by both fides of the bar, and at laft decided a- gainlt the admiffion. Lord bfogrove. There are certain rules which we fhould never relax. If a man comes to this bar as a witnefs, he is to fwear so what he now remembers, not to what he former- ( 59 ) ly reTr r m'bei"ed. How would it anfwer, were we. to fuf- fer the public prolocutor to produce the declaration emit- ted by a witnefs in his precognition before the Sheriff, and fay to him, " there is a paper which you have iign- ' ed, read it over, and give it as your evidence." A m:.n who has been prefunt at any intereiting occa-_ Con, when he expedls to be called upon as a witnefs, may take notes, and produce them in Court ; but this is very cifftirent indeed from a narrative taken ut the djilance of weeks. I can make no deviation from a general rule, and there- fere, 1 am decidedly of opinion, that the witnefs is not entitled to uie thcfe notes. Lord Siuinton. A witnefs may make ufe of notes ta- ken down at the time an affair happens, but not when taken down weeks afterwards. There would be no harm in the witnefs Lacking them over before he came in here, but to ,take them but here, is againlt all rules. Lord Dunjlnn/in agreed with the above juvlges. Lord Craig thought the witnefs might have recourfe to bis notes, when any particular queftion was put to him. Lord Juftlce Cltrk. I do not know, my Lords, that we would differ much, if we knew what we were debat- iug about. That a witnefs is not allowed to take out a paper, read it over, and then fay, there is my evidence, this I allow ; but it is admitted by your Lorclfhips, it is ad- mitted by the Lord Advocate, that a witnefs may make uie cf notes taken at the time the fat happened. . Now, where is the difference, though they are taken ex poft fafto, if he is ready to iVearthut he took them down with a good reeclle&ion. I therefore think, that if the wit- ntis does not recoiled any circumftance, he has a rHit to look at his notes before he anfwers the quiftion , and then, if he fays upon the great oath which he has taken, that theie are.fa&s, they ought to be received in evi- dence, not indeed giving- the notes as his dcfofitloa, but uling tlicm only tbr ths purpofe of refrJhLg his ni:- Mr Mr Hope. Your Lordfhip muft know, that that was all I afked. The Court decided by a majority, that the witnefs Was not entitled to look at the notes. The witnefs was then recalled, and informed, that it Vas ,the judgement of the Court, that he muft not take out his notes ; after whiqh, the examination proceeded. Mr Hume. Did you mention the opinion you had for- med of the pannel to any of the family ? I told Mifs Kin- loch that it was my opinion, that matters were now ar- rived at that crifis, t^ make ic ntceilary to confine him. Before you gave that opinion, had you feen the Major ? No, but after feeing him, I was confirmed in this opinion, and thought he was a6lually dangerous to mankind." I ima- gined that he would do mifchief to-fome person or another ; and I thought it, in particular, very dangerous for Sir Francis, as one who was going near him, efpecially after feeing him prepare deftruftive weapons, having never ob~. ferved any tendency of that kind before. Had you any convex fation with Sir Francis on the Mon- day? Sir Francis fent for me to the garden. I was at that time {landing with the pannel in the front of Gilraer- ton houfe ; and he faid, " Why go to the garden ? Let ** Sir Francis come to you." I replied, " I will go to Sir Francis wherever he calls me." What was the tenor of the converfation you had with Sir Francis ? Sir Francis was exceedingly vexed, and feenied to be affronted at his brother's fituation. He feemed affronted, did you fay? Yes, he appeared to me to feel, as it were, a fort of fa- mily affront. Was this before the blunderbufs fcene ? It was. What further converfation had you? A good deal more converfation pafled between Sir Francis and me. "What pailjd after Mr Somner and you were together? Mr Somner and I, in our converfation, agreed that the Major was deranged; and I afterwards informed Sir Francis of. the blunderbufs and other circumftanCes, -and preffed upon Sir Francis the neoefiity there was for fecu- ring him, as he appeared to me a nvjft dangerous perfon, particularly particularly about that family. Sir Francis feemed to "be of the fame opinion ; and he then ir.formed me, that he had bolted his room-door in the infide on the Sunday night ; and I agreed that he was very right in fo do- ing. Had you any tranfa&ions formerly, which led you to fuf- pel that the Major was infane ? The Major was owing a debt to a Mr Hepburn, a neighbouring farmer. In May 1789, he left for me with a Mr Veitch, a draft for a fum of money to pay this farmer. When I looked at the draft, it appeared to be for about L. 100 more than was due. But perhaps I had better read the correfpon- dence that pafTed at the time. Here the witnefs read the following correfpondence between the pannel and himfelf, viz. Card Mr KINLOCH is Mr FRASER, no dote, quoted ly Mr Frafer lib May 1789. Mr G. Kinloch's compliments to Mr Frafer, and In- clofes him a draft for L. 430 on Mansfield, Ramfay and Co. for the difcharge >f his bond to Mr Hepburn, and which he has requefted of Mr Veitch to give him on his arrival from Pencaitland. Card Mr FRASER to Mr KTKLOCH, 8th May 1789. A. F. prefents very refpeftful compliments to Mr G. Kinloch, acknowledging receipt of his favour, inclofing a draft to Mr Hepburn for L. 430. But Mr G. K. will pleafe recolleft, that the principal fum due to Mr Hep- burn is only L. 300, bearing intereft from Lammas 1787. And as Mr H. was told, on the I7th March laft, that he Ihould be paid at three months from that date, fo the whole fum due to him, upon the I7th June next, will be only L. 328 : 2 : 6. And therefore, the neat way of fet- tling the bufmefs appears to be, to draw a bill upon Men". Mansfield and Co. far that fum, payable to Mr Hepburn Upon the I7'.'n June. Tfas ( 62 ) The draft for the L. 430 {hall be returned to Mr G. K. A. Frafer {hall know with certainty where to ad- drefs to him. Card Mr FRASER to Mr KINLOCH, ^Qth May 1*789. A. Frafer's moil refpetful compliments to Mr U.K. hopes jthe letter of the 8th of May has come fafe to hand, though it lay in the poft-office at Edinburgh until it was forwai'ded to MofFat by directions from A. F. Begs leave to inform Mr G. K. that Mr Kinloch withes to pay up the amount of his note of hand, and intereft due upon it, and offered the money to A. F. provided the amount could be afcer- tained j but as neither Mr Kinloch or A. Frafer could exailly recolle& the fum, and the period fmce the intereft begun to become due upon it, fo MrG. H. will be pleafed to fend the note of hand to A. F. and the contents of it, (including principal and intereft,) may be credited in part of Mr Hepburn's debt ; and in that cafe, Mr G. K need only fend a new bill for the balance that would remain due to Mr Hepburn, after deduction of the fum. of Mr Kinloch's note. A. F. has takep the liberty U> propofe fettling the bu- finefs in the manner above ftated, as he believes it to be the moft eafy and convenient way of doing it. And he will fend i-he bill for L. 430 to Mr G. K. whenever he will receive his inftruaions for that purpofe. Card Mr G. KIKTLOCP to Mr FRASER, id June 1789. f Mr G. Kinloch's compliments to Mr Frafer, and as the the plan pointed out to him for clearing all accounts, ap pears to be the moft proper, he has fent the note, amount- ing with intereft to L. 70, which deduced from L. 328, amounts to L. 15 8, which will clear his debt to Mr Hepburn; and for which purpofe, he has fent him an order on M^ff. Mansfield, payable to Mr Hepburn at 14 days after date ; and requefts of Mr Frafer to lend the note given for L. 3 30 to Moffat. P. S. In reading over Mr F's. card, there'is a miftake ( 3 5 n the fum due to Mr Hepburn, being at moft L.SJO, ** Head of L. 430, as fpecified by him. Card Mr FRASKR to Mr KINLOCH, 4tb June 1789. A. Frafer's compliments to Mr G. K. acknowledging receipt of his favour, with Mr Kinloch's note of hand, and draft for L. 2,58, amounting in all to L328, which will pay up Mr tiepburn's debt. Returns incloled the draft for the L. 430, and is forry that he fhould have called Mr Hepburn's debt L. 430 in place of L. 330, and of this miftake he had not the fmalleft recollection. Mr G. K. will pleafe acknowledge receipt of the draught for L. 430. A. F. fent a meffage lately to Adam Mitchell about the balance of the wood money, but he has returned no an- fvver. A. F. thinks, that without diftrtfiing Mitchell, fome part of this balance may be recovered, indeed Mitchell iaid fo himfelf* Hr KINLOCH to Mr FRASER, zoth June 1789, MOFFAT. I was favoured with your letter, inclofing my 'draft to Mr Hepburn for L. 430. I mull, and do confefs myfel to have been much miitaken in faying that you itated my debt to Mr Hepburn to have amounted to that {urn, but it was entirely owing to myfelf, in giving a draft for L.ioo more, which efcaped my memory. Mr Hume. How was the matter fettled at laft? It was finally fettled in the way I .recommended, by a note for the net fum due being ftnt to me. Did the pannd after the matter was fa fettled, ever recur to the iubjel ? Yes, at the diftanceof feveral years. I-i May 1.793, when I happened to be at Gilmerton, the Major took me a'ide, and told me very abruptly, that he? could not recoiled that a draft or bill which he had left with Mr James Vtitch, to be given to me, had ever been returned ; or exprefled himlelf to this purpofe, and dded, that this circumftance had given him very great vex- ation, fttiori, and more than he could tell. To this I anfwereo^ that I was aftonifhed at what he mentioned; for I was fully convinced, that no fuch inaccuracy or miftake had happened on the part of Mr Veitch, who was then no more ; and as for myfelf, that I was fm*e that I was per- fe&ly clear, and would be able, on looking over my cor- refpondence on the bufmefs, to explain it in the moft fatisfa&ory manner. Did you accordingly ^ive fuch in- formation ? Yes, on going home, I examined the corref- pondence already recited, and wrote a card to the pannel, recapitulating the import of it. This card was dated on the 2Oth of May 1793. Did this explanation fatisfy the Major? Yes, I had occalion to be at Gilmerton foori after, when the fubjeft was introduced; and the Major not only declared his perfeft fatisfa&ion with the expla- nation, but feemed much aftiamed, and hurt at the want of recolle&ion on his part, which had rendered it necef- lary ; adding, according to the beft of my recollection that, at the time the faid money tranfation took place, he had 'been;,.much diftrafted in his mind. Did you not, fome years ago, receive a letter from the Major, dated at London, which induced you to fuppofe his mind at that time very much difturbed? Yes, its contents were fo ftrangjj^as to imprefs me with the idea, that he was in a defperate fituation, both as to his mind/ and purfe. What became of this letter ? It having occurred to me, that the fame ftiould be immediately communicated to the family, I fent it to Mr Alexander, requefting, that he might fliow k to the late Sir Francis. Was it returned to you ? No. I fometime afterwards afked Mr Alexander, if he had received it, and he acknowledged that he had ; but nothing farther, to the beft of my recolleftion, pafled on the fub- jel. Do you recoiled having any Converfation with Sir Francis refpe&ing the pannel, foon after >Slr David's death, in which Sir Francis exprefled an apprehenfion with refpeft to the pannel's fituation ? Yes, foon after his father's funeral, Sir Francis faid to me, that he thought Gordon was getting into one of his unlucky fits. Mr ( 69 ) /*/* Hope. I believe the pannel's pocket book is in your* 1 auftocly? Yes. (The contents of the pocket book were exhibited by the witnefs.) Air Hope. Was there found in that pocket book, a copy, holograph of the pannel, of a letter to Mr Francis Anderfon, on the iubjeft of the fuppofed renunciation already mentioned ? Yes, here it is. Mr Hope. You have feen, gentlemen of the Jury, that twice over, at the diftunce of years, the pnnnel {poke to the witnefs of this renunciation ; and, with this vagary ftill in his head, he actually wrote to Mr Anderfon on the i7th December 1792, a letter, the contents of which you fhall now hear, Mr Hope then read the copy of the letter, which was of the following tenor: u As I am now winding up mat- ters, and being ignorant of fome things in which delicacy prevents me'from afldng my father, and in which you can refolve me, I now addrefs you for that purpofe. ;.It is to know the tenor of thefs fheets of paper, which I figned in your prefence here in the year 1788, oft'he contents of which I was and am ignorant. Though it may appear extraordinary, that I fubfcribed to that, of which I did not know the purport, yet that furprife will ceafe, when faid at the defire of a father, to which refufal I. evei**was a Granger, it was done. In my requeil of favour of an- fwer, I hope there is nothing unbecoming honour anJt bufmefs. In this idea I fubfcribe mylelf." Mr Hope. Have you Mr Anderfon's anfwer to this letter? Yes, it is likewife he-re. Do you know this to be Mr Anderfon's hand writing? Yes. "What is the date of this anfwer? It has none, but refers to that of the pan- nel's letter. Here it was mentioned, that in cafe this fhould be thought neceflary, Mr Anderfon had been cited for the purpofe of authenticating his letter, but the Lord Advocate agreed that this was unneceffary ; and the letter wa then -read being exprefled ^s follows : " I am this day fa- I vuured ( 7* ) Sjpured with yours of yefterday, andfhould be happy were it in my power to latisfy you, biit I have not the moil diftant recolledlion of any papers you figned in iny prefence, in the year 1788. I obferve from our books, that all tranfa&ions -with/ regard to your fale to lord Wemyfs of "Woodhall, was finally clofed at Whh- iunday 1786, and the balance paid you on 37th May 1786. Since which there has been no tranfa&ion betwixt Us. Will you make my bed refpe&s to Sir David, and tell him, he may depend on feeing me early in the next; year. And I ihall be happy, if, from any circumftancd you can brinj to my recolie&Son, any thing that may tend to fatisfy you at -to what you wifli to know ; but this I am certain of, that I never preferited any paper to any perfon to lign in my life, \vithoutexplaining the nature of it to them, and making them read it. My belt wiflies ever attend you all," HUGH DODDS, Clerk to Mr Frafer, (xctrmned ly Mr BURNET. Did you fee the pannel in Haduington Jail ? Yes. I faw him there on Wednefday the ijth of April, in company with Mr Hay Smith. 'What con verfation tfien pafled r No- thing particular ; only the panne! expreffed feme diflatis- faftion with his iituation, there being no fire in the room. When did you again fee the panntl ? I waited on him with a written mtffage from- Mr B'rafer, in anfwer to feveral mafTages from the pannel. What was the import of this mcffage? It informed the pannel, that, he migh.t give any meflage to me which he might have occafion to fend on bufmefs ; and he would get an im- mediate anfwer. What did the pannel fay, on receiving this meflage ? He f.iid, that he fuppofed he might ur.der- iland he was never to fee Mr Frafer again ; and that he could not get a diitinft anfwer, unlefs he faw Mr Frafer himfelf. Did you again fee the pannel ? Yes, on the Tuefday 'thereafter. What was the ocjaiicn of your feeing him tlienr . ( 7* ) then? To be prefent at the intimation of a petition fo^ >] .pointing managers to the eftate of Gilmerton. What ^.;{r?d? The pannel read over the petition, and (on my explaining the nature of it,) faid, he had no objection to it, and ligned a confent, which I wrote out. Did any thing further pafs ? Yes ; he pvopofed to keep the peti- tion, and, to confider of the matter' for forty-eight hou^s ; but I declined leaving the petition with him, and, at his defire, fcored out the confent. Did he, notwithstanding, agree to the application ? Yes, before I went away, he defired another confent to be written but, and figned it Lcrd Juftice Clerk. When you had occafion to fee the pannel, did he fpeak rationally and coherently ? Yes. , ' Lord Advocate. There are a variety of witnefies whorn I have not brought forward, and I do not intend to bring forward. 1 As for one witnefs, the firft in the lift, annexed to the Indi&ment, namely, Mr Alexander Kinloch, the Jury may have expefted to fee him here ; but after the evidence which has been adduced, I am not difpofed, and confider it unneceflary to .put that gentleman upon fo very dif- agreeable a piece of duty. As to the other witutfles in the lift annexed to the In- diftment, if there are any of then! whom my brother wiflies to bring forward in exculpation, it will be compe- tent for him to call upon them. But, on the declaration which the pannel emitted before the Sheriff being read, I here clok the evidence upon the part of the Crown. The counfel for the pannel having admitted the iden- tity -of the Declaration, the fame -was then read. It was expreiTed in the following terms : DECLARATION. *' At Edinburgh, the 3cth day of May 1795 years. *' The which day, compeared in prefence ot James Clerk, " Efq; Advocate, his Majeity's ShernT-depute ot the Shire " of Jidinburgh, Sir Archibald Goraon~K.inJ.och of Gil- " merton, who being examined by the Sheriff, and being " informed by the Sheriff' of the reafon of his be- * in* bi ought before him, and having likewife acquaint- ' ed him, that it was in his option, either to refufe to V anfwer thofe queflions that might be put to him, or to " return iuch anfwers as to him might feem beft, he " anfw.ered, That th;re was no queftion could be put ta "'him, but what he 'was ready to anfwer in the face of *' Heaven : And being interrogated, If he recolle&s what happened at Gilmerton on the I5th of April laft? ' declares, That he has a very indiilinft recolle&ion of ( what then happened, as he was then quite deranged. < Interrogated, If he recolle&s having fired a piftol on c the morning of that day, and at whom? Declares, That < { he has a very confufed recolle&ion of it, but does think * he fired a pillol; -but where, hovr, or at whom, he does < not recollect ; and that he was in fuch a ftate of de- ' rangemsnt, that he is now convinced, that he would ' have fired the piftol at any perfon that then came in '* his way. Interrogated, as the declarant now appears <{ to confider himfelf in a fettled ftate of mind, and '* recolle&s what has happened, he is defired to " fay at what period his derangement ceafed? De- " clares, That he cannot fay when he recovered- * from his deranged itate, but that he has been " greatly better fince h'e has been brought to Edinburgh, ** although ftill at times, when particular thoughts come ' acrofs him, he feels a temponuy derangement. Inter- *' rogated, If he is fenfible at ^Yhat time his derange- <* ment commenced ? Declares, That he cannot fay ; but tf he felt it coming on for fometime before the unfortu- ' tunate accident happened. Interrogated, If he was 44 fatisfied with his father's fettlements . ? Declares, He " was io, and never exprefled any diflatisfation at them, " but was gratehal for them. Interrogated, If he ever " complained of any papers of his father's having been *' burned after his father's death ? Declares, He does not *' recoiled of having done ib. All this he declares to be " truth. Emitted alfo in pretence of Mr William Scot, " Pro- *' Procurator-fifcal of the -county of Edinburgh, Jofeph " Mack writer in Edinburgh, and William Stephens " Sheriff-officer in Edinburgh j and read over to, and ad- " hered to by the declarant." EXCULPATORY PROOF. Lieut. Colonel SAMUEL TWENTYMAN examined bylAr HUME, Are you acquainted with the pannel, Sir Archibald Gordon Kinloch ? Yes. At what time, and on what occafion did your ac- quaintance commence ? In the year 1778, Sir A. was a Captain in the 6jth Regiment, I a Lieutenant in the 1 8th at that period ; the two regiments were encamped at Coxheath, and in the fame Brigade. This circutnftance naturally produced a frequent intercourfe between the officers of the two regiments, and I then became acquaint- ed with Sir Archibald. In what eftimation was the pan- nel then held ? I can affirm, that no officer was more un- iverfally efteemed and beloved than he was throughout the whole line, by both officers and men ; his generofity, good temper, fociability, and general good conduft, made him very popular both in his own and other regiments. Had you afterwards any opportunity of being flill more in- timately acquainted with the pannel ? In the year following, I was nominated by the late Duke of Ancafterto a company in the Regiment his gracs was then railing ; and on the much lamented death of that amiable young nobleman, Sir A. fucceeded him as Major. This, by placing us both in the fame regiment, gave me an opportunity of obferving Sir A. more minutely; and having failed with him in the fame ihip part of the way to the Weft Indies, that op- portunity was encreafed : I can. only repeat what I have {aid laid in regal d to his general chara&er; arid in all thofe di'^ ferentfituations, I found him friendly, liberal, fociableand humane, poflefiing every good and gentlemanly quality. At what ifland were you landed ? We were landed et St. Lucia, and their ftationed. Was not the pannel feizt d with a fever at St Lucia, and what were its effe&s ? On that ifland Sir .Archibald was feiEed with a moll malig- rant fever, which deprived him of his fenfes- 1 have fecn him in his bed in the higheft ftate of delirium, held down in his cot by a foldier on .each fide, and, to ufe a common phrafe, raving mad. I had feveral opportunites of feeing him while he remained on that ifland, and while he laboured under that dreadful malady ; and I have frequently been prefent when he was talking of me, and did not know I was there. Do you recollect Whether the pannet was removed to a dif- ferent ifland, who accompanied him, and any occurrences on the voyage ? It being thought advifeable to have him re- moved to Barbadoes for change of air, as the only pof- fible means left of faving his life, Lieutenant Fawcett, who all along kindly attended him, reqaefted me to per- mit him to accompany Sir A. to Barbadoes, which in courfe I granted. During the pafiage, Sir Archibald's fervant: caught the fever, attended with the' fame iymptoms, and, in one of the paroxifms of it, threw himfelf overboard, and was drowned. ' I have had feve,ral converfations with Lieutenat Fawcett upon this fubjeft, after our return to England, and he was of the fame opinion with myfelf, iri regard to the decided derangement of Sir Archibald's in-' telle&s, undoubtedly the effe&s of this fever. Lieutenant Fawcett is now in India. On the pannel's return to Europe, did you remark any change upon him ? I was myfelf particularly ftruck with ills manifeft change I perceived in Sir Archibald, on my firft feeing him in England, after this fever ; not fo much Irom a change on his outward appearance, but from ^ total alteration in his condul, manners, and converfation. Did you purchafe the pannel's Majority ? Yes, in the* r/ .. .'-i-i'mgof 1783. What obfervations did you then msikf 0:1 his behaviour? We dined feveral times together du- ring the ncgociation. Afcthefe meetings, I obferved an uncommon change in Sir Archibald, a degree of flightintis, a wildnefs in his appearance, and a kind of conduct per- fectly different from what I had obferved in him, previous to the date of the fever; as, prior to that, Sir Archibald's manners in fociety were affable and conciliating. After my purchale from him, many opportunities of feeing did not occur ; and, convinced of his derangement, I rather avoided than fought them. Do you recoiled any particular opportunities of feeing the pannel alter this period, and what did you obferve in hiscondul? About four or five years after the fever, I was on a vifit in the neighbourhood of Lincoln. Sir Archi- bald came to that town. He fent a poft-boy to me with a note, begging I would come over immediately on very particular buiinefs. When I came to him, he had no bufi- nefs whatever, nqr would tell me what he was about, whence he had come, or where he was going. Do yoii recollect feeing him at Lincoln after this period, and any particulars which then occurred ? Yes. The year following, Sir Archibald came a fecond time to Lincoln, when his condul was much more extraordi-? iiary than on the former occafion. A meflage was fent to me from one of the inferior inns, that a peiibn begged to fee me immediately. I returned for anfwer, that not be- ing in the habit of going to people, whole name or buti* iieis I was unacquainted with, the perfon mutt be more ex- plicit, before I could determine about : ealling upon him. Several verbal mefluges pafied to the fame effel. AC length a note came, urging me to to come immediately ; that it was bufmefs of a moft particular nature. I was executively furpinfed at this note, arid ' curiofity led me to go, and fee who poffibly could be the author. My fur- prife was {till further encreafed, when, on entering the room, I beheld Sir Archibald. I queftioned him, bow he could be fo ridiculous in not fending me his name ? He re- 72 ( ff 1 jjlied, that be had fomething very particular to communi- cate to me ; and as he did not wifhfto be known, he would not fend his name I begged to know what this bufinefs was. He went to the door, to obferve whether it was fattened ; and then began a long (tory, to me totally unintelligible, fly- ing from one thing to another in the mod incoherent man- ner, and talking of projects that he had, none of which he would explain. Sir Archibald dined at my houfe that day. Colonel Gardiner, a very gentlemanly and well bred per- ibn, was of the party, a perfect ftranger to Sir Archi- bald. To this gentleman, without any apparent caufe whatever, Sir Archibald, at firil fight, conceived an abfolute antipathy, and behaved to him very rude- ly and in the raoft boitlerous manner and totally different from his former condu.61 ; yet, on a fudden, his difpofition changed fo much, that he jumped from his chair, threw his arms about Colonel Gardiner's neck, kif- fed him, and feemed as much ple^afed with the Colo- nel's company, as before he had (hewn averiion to it. . When he left Lincoln, he would not tell me where he had come from, or where he was going. The people of the inn thought him a moft extraordinary being : they judged from his way of f peak ing to them, and odd man- ner of condu&ing himfelf. When, and where did you laft fee the pannel ; and what did you then remark ? The lalt time I faw Sir Archi- bald was near the Adelphi. He formerly ufed to be very particular in his drefs, that is, remarkably neat and clean ; he then was quite otherwife, his hair uncombed, his {hoes and llockings exceuively dirty, (not apparently dirt colle&ed from that morning's walk,) but as if they had not been cleaned for fome days. We hadfome converfa- tion, but his fpeech was fo confufed and incoherent, that I could not underiland him. I was exceffively glad, upon this occation, to get rid of him ; for it was diitreffing to fee him fo changed, fo different from what he formerly had been. I may have feen him cafually two or three times previous to the above meeting, and was confirmed )n my opinion, in regard to his derangement ; but, par- ticularly, ( 73 ) m li-alarly the laft time, I thought that the malady had en- creafed. Do ycu think that the fever in the- Weft In- dies was the caufe of this derangement ? Certainly. Did- it ever appear to. you that the pannel entertained the fame notion himfelf ? I have obfcrved him at times put Kis hand to h'is head, complain much, and fay, that he feit pains thei*e, the efft&s oi the fever. He fpoke of being troubled \vitb the blue devils, and at thole times appeared very uneafy in his mied. I once aiked him, when feeing him in that fituation, Whether he repented of his having fold out of the army? He rtj-lied, u No, no, " 'tis not that ; 'tis ray head ; 1 never fl^ull recover that " St Lucia fever." Hud you ever any converfation with other officers in relation to the pnnnel's diforder, and did they entertain the fame idea of it with yourfelf ? In converfations I have had with officers, who have known Sir Archibald before his going to the Weft Indies andTmce, particularly General Tottenham, Colonel Fitch, Lieutenant Favvcet, and others, they have agreed, that he never reaovered that fever, and that he was deranged by the eflfe&'s of it. In my own mind I never had the fmalleit doubt, that Sir Archibald's, intellects were deranged in confequence of that fever, and that he had periodical attacks, that rendered him infane, and coniequently not mafter of his own actions ; as 1 am convinced, mull have been the caie t the period of the dreadful cataftrophe, on account ot which he ftands charged* I formed this opinion from having known him previous to that fever, the change it caufed in him, and the obfervations I made on his fub- fetjuent condut. MAJOR JOHW MACK AY, examined by Mr RAE Do you know the prifoner at the bar.'' I do. How long have you been acquainted with him? My acquaintance with my unfoi-tunate friend, Major Gordon Kinioch, com- menced in Ireland in the year 1767, when lie joined the 65th regiment ?t Corke as an Enhgn ; to which regiment I then had the honour to belong. He was particularly K recommended recommended to my care by the l&te General jVlackay., who at that time was our Colonel. It was there, ,that the foundation was laid of that ftrid friendihip and inti- macy, which have ever fince uniformly /ubfirted between us. He continued with us until autumn i779t when he obtained, the majority of the 9Oth regiment, and was foon thereafter ordered to embark for the Weft Indies. Perhaps, this may be th^ proper time for me to mention the footing upon which JVlajor Gordon lived with the 6jth, during the twelve years he ferved in it ; and therefore, I take this public opportunity of faying, that he was friendly, generous and benevolent, univerfally beloved and .efteemed by every officer and foldier in the regiment, and when he left, it as univerfally regretted. During the period which you have mentioned, did you ever obferve the pannel liable to fils of bad humour, or jealoufy ? No ; I do not recoiled, that -during the whole of that period, I erer faw him feriouily out of temper. After that period, did you come to underftand, or had you occafion to remark, that a material clinge had taken place in the prifoner?s difpofidon, and that he was at limes liable to derangement of mind ? I learned after- \vards, that the Major had been attacked with a very violent and dangerous fever in the Ifland of St. Lucia, which affeded his brain much ; and I have great reafon to believe, that he has never entirely got the better of the efFeds of that malady ; and I am the more confirmed in this belief, from the following fads, which I beg leave to ftate tp the Court. After the poth regiment returned to England, at the clofe of the late war, I met feveral of the officers of that corps, who all agreed in opinion, that the Major had been occafionally deranged in his mind, and that his health had never been thoroughly re-ettablifhed-' lince he had that dangerous fever, to which I have alluded. In the year 1783, I met him in London, where we were much together ; and although I could perceive that he was not fo conne&ed and coherent in his difcourfe as ( 75 ) he formerly ufed to be t yet I was not fenfible at that time that he had any deranged fymptoms about him. The firft time that I had occafion to make any obfer- vation upon this affli&ing fnbjeft, was at Mr Charles Dairy mple's houfe at North Berwick, in 1785. I accom- panied the late Sir David Kinloch, Mifs Kinloch, the late Sir BVancis Kinloch, and the Major, to pay Mr and Mrs Dalrymple a vilit. In the courfe of the evening, Major Gordon and myfelf fat down to play a rubber of whiR. at the fame table ; and I obferved that he had been through- out the day in as good health and fpirits as I had ever feen him in. After we left off cards, we walked out of the dining room together, when I was much furprifed indeed to find that he had entertained an idea (as groundlefs as it was improbable, nay, I may add, impofiible,) of my having affronted him, by endeavouring to place him in a ri- diculous point of view, and to make him the butt of the com- pany ; he faid that I was the laft man from whom he expeft- ed fuch unfriendly ufage j and that he never would forget it. The effects, which I had been told, his Well India fever fonietimes produced in his mind,ftruck me fo very forcibly, that I' was inftantly convinced, he was then in a certain degree deranged : and although I ufed every friendly ar- gument in my power to remove his iufpicions, which were as' greundlefs as they were Unkind and unjuft, yet thefc had no effe&. Next day, I was obliged to come to Edinburgh, and in confequence I wrote a letter to Mr Duncan McMillan, (who was very intimate at Gilmerton,) defiring him to Ihew it both to Major Gordon, and to the late Sir Fran- xJs Kinioch, in which I explained the whole matter ; and Mr M'Millan wrote y me that he had done ib. Sometime afterwards, I met Sir Francis j who, upon the fubjeft be- ing mentioned to him, faid, that he was perfectly fenfible that I had not given his brother the i'malleft caufe of of- fence at North Berwick ; that he was convinced his terr-* per and ditpoihion were totally changed ; that he had of- ten obf-'rved him to behave in a moft inconfiftent manner ; ( 76 ) nd that he attributed all this to his Well India fever";' for he was not the fame man fince his return to Europe, that he had been before he went out to the Welt Indies. In Summer 1790, I happened to be one da*y in the cof- fee room at Greenock, and was much furprifed to fee Major Gordon enter. I immediately perceived a wiltl- nefs it his looks, which ,1 had never fuen before. H* told me, th:.it he had ported all night from Berwick with- out fleeping, to find me .cut, in order to communicate 'to me matters of the utmofl confequence to himfelf, as he looked upon me to be his moil confidential friend. I afk- ed him what he meant ? upon which he took a letter out of his pocket, and gave it to me, faying, " Read that, " and then be convinced how, ill I have been treated by ** my whole family," This was a letter from his bro- ther Mr Alexander, acquainting him with the death of their brother Captain David, very exprdlive of the dif- trefs the family were in upon that melancholy occafion, and full of affeftion towards the Major himfelf, earneftly entreating him, at the defire of Sir David and the reft of his family, to return to Gdmerton. Upon my observing, that this letter was very foreign to the fubjecl he had mentioned, he replied, *' That letter is a fufficient *' proof of the truth I have told you, and I have no u other proof." At this time, the Major appeared to me to be quite deranged in his mind. I told him, that he feemed to be much indiipofed, and prefled him to go to bed to try to get fome fleep, after his fatiguing journey, and alfo to remain with me at my filler's iioufe, who liv^.i in the neighbourhood of PortrGlafgow j but all this he pofitively refufed to do, and faid, that he was obliged f> return immediately to Berwick, where he propjfed fleep- ing that night, and inftantly fet out, notwithftanuing I ufed every argument in my power to diffuade him front his purpofe- Tiie next time the Major appeared to me to be in a de- ranged Hate of mind, was in Dumbreek's hotel in Edinburgh, four or five days before the death of the late Sir Francis Kinloclu Kinloch. One o r the waiters having told me he was in tho houit, I immediately went to him, between feven and eight o'clock in the evening: He was then going to din- ner, and appeared to me to be totally deprtfftd in his mind, and quite incoherent in- what he faid. I ~vvas obliged to alk him the fame queftion two or three times before he would m Ui me any anfwer, and thtn he ufed to ftart up as if fomething had alarmed him. ' He told me that he had been extrenudy ill indeed, ever finc'e the death of his fa- ther, who had made what he (the Major) confidered a handloine proviiion for hint, and with which he was per- fectly iat'stied: At this time he fpoke of his brother Sir Francis with great aftc&ion. The Major U;ki me, that he was obliged to fet out early next morning for London up- on particular buunefs. I remonftrated with him againit undertaking fueh a long journey in his prefent Hate ot* health, and advifed him to'iend for, and confult fome medical gentlemen : I like wife told him., that I intended fetting ouc myielf in a few. days for Buxton, and prcfled him much to wait for me, and that we could travel fo far together ; but he would not liften to any thing I propofed, and fet out nsxt morning in a poft-chaife, with an intention, as he told me, to dine at Gilmerton on his way to London. Did you think chat the Major's ikuacion on this occaiicn proceeded from intoxication ? By no means. He called for a bottle of wine, and drank only a few glafles of it. Indeed his iituation made fuch an impreifion on my mind, and I was fo much convinced of his -deranged itate, thau when I went home, I told my lifter, (who was well scquarn- ted with the Major,) that I ftiould not be furprifed if he ommitLcd fume raih adlion againll himfelf. When did you again fee the Major? I went to the Major the day after he was brought into Edinr. Jail, at his own re- queft, and found him as calm, rational, and collected, as I ever remembered him, and pcrfe&ly ienfible of the deplor- able fituation which he was 'then in. He faid, he had been much deranged in his judgement for a confidcrable tune kefore the fatal accident befel his brother, and that he did t 78 V tfid not know he had a piftol ia his hand, till he heard the ., report. I called upon him two days afterwards, in com- pany with Dr James Home, and found him, (as I thought,) quite delirious and furious ; and, when we left him, I had fome converfation about him with Dr Home, who was of opinion, that if the Major's fever continued much longer, it would be advifeable to put the ftrait-wailtcoat upon him. When I went in upon this ofccafion, the Major was walk- ing rapidly about the room, which was very Imali, as if for a wager. Lord Advocate. You have told us, that, when you faw the pannel at Dumbreck's hotel, he was alarmed, and that you had to aik the fame queftion two or three times over before he gave an anfwer. Now, when he did return an anfwer, was it a rational and diftincl one ? It was ge- nerally pretty much fo, but exprefled with a degree cf melancholy and wildnefs which I never obferved before. Captain MILLER examined by Mr MOKYPENNY. Are you acquainted with the pannel ? Yes. How long have you known him? About twenty-three years. I join- ed the 6jth regiment as an Enfign in the year 1771 ; and air Archibald, then a Lieutenant in the fame regiment, joined us at Halifax, Nova Scotia, a y*ar or' two after ; and he afterwards purchafed a company in the regiment. In what eftimation was the pannel held in that regiment ? During the whole time I knew him in it, he was univer-- fally beloved and refpefted by all the regiment, both offi- cers and men. When did the pannel leave the regiment ? In the year 17/9, when he was promoted to the Majori- ty of the QOth regimeiit, along with which he went to the Weil Indies. When you next faw the pannel, did you obferve any change upon him? When I faw him after his return to Britain, he informed, me that he had been attacked by a violent fever at St. Lucia, w-hich had greatly impaired his health. Did you fee him foon after lie returned ? I did not fee him, till 1789. We met by chance in the Strand. 1 was furprifed to find him io much altered. Formerly he was a moft convertible gentleman, the mildeit and moit humane C 79 ) humane character ; but now I obferved a moft remark- able change. Was the alteration in his manners, or in his bodily appearance ? Both. He was very flovenly in his drefs, and his hair, which was formerly a fine brown, was now turned wihte. He often told me, that he had always been difturbed in his mind fince he had the fever in the Weft Indies. Do you think the alteration in his temper might be the effects of intoxication ? No. We dined frequently toge- ther in coffee-houfes in London, when we never drank a- bove a bottle of wine between us, and I never faw him but fober ; though his converfation was often wild, by what I had been ufed to. Had you occafion to fee' the pannel in 1790? Yes. In October that year, I received a letter from him, dated from a hotel in Oxford road, preffing me to come to him immediately, as he was in a very bad {late of health, and had no relation or acquaintance in the world that he cared for but myfelf. I was then at Huntingdon recruit- ing, but immediately went to London. On calling at the hotel whence the ktter was dated, I could get no account of him, except that a ftrange fort of a gentleman had {laid there for a few days, and had gone away without faying whi- ther. I however, found him at lall very ill, in bed, at old Slaughter's coffee- houie in St. Martin's Lane, kept by one Reid. I ilaid with him a few days in the fame houfe till he got btlter, and then returned to Huntingdon. When did you next fee the pannel ? In November fol- lowing, he came down to Huntingdon to fee me, and {laid two or three days, and thenfet off for Scotland. Did you remark any thing particular in his converfation at this time ? He frequently repeated to me his diftrefled fitua- tion of mind ; and he told me fome odd {lories of himfelf, fuch as that he had gone about England in ftage-coaches and {lopped for days, where {Irolling players were aling in a barn, when he engaged himfelf as fiddler to them, and many other acls of that fort, which clearly proved to me his derangement of mind. At this time he was dreffed tn black (I believe one of his brothers had died recently before) ; and he told me, that he would never alter the 4refs, as he was determined never to mix with the world again ;.and he a&ually fent many of his. coloured clothes to my lodgings, to be difpofed of as I might think proper. Lord Advocate. "When you conyerfed with him, were the anfwers he returned to your queftions rational an4 coherent? Sometimes he returned correct anfwers, at (pthsr times they were quite incoherent. Miss KHSfLOCH. This lady was in the Outer Parliament Houfe. Mr Hope waited upon her by pennifiion of the Court, to in- form her, that the was the 'next witnefs he meant to ad- duce. He remained only a few minutes, and when he re- turned, addreffed the Court in the lolloping terms. MY LORD, I am now under the neceflity of calling upon your Lord- ftlips to review "your former judgement. I have been with Mifs Kinloch, and I found her in a condition which I cannot defcribe. In fuch ditlreis, that, by heavens ! were it my own life that was depending, I would not aik her evidence. She has declared to me, that unlefs flie is permitted to look at her notes, (lie cannot promife to unfwer a fingle queltion. Will the. Court, under the thefe circumftances, adhere to the judgement already given? Lord Advocate. In the conduct of this trial, as in all others which it has been my lot to manage, I have been guided by the principle of public duty. However much 1 may be affecled by the dittrefled and melancholy fitua- tion of the family, I cannot discriminate between the cafe of this lady, and that of the poorert woman in the king- dom. I muft not yield to my feelings : And I will not, on any confideration, deviate from the line of equal and impartial Juitice. That he or {he, who, upon aqueftionbeingput, does nop recollect. recoiled, may look at notes taken at the time, and then make anfwer, is what I fliall not oppofe ; but, my Lordj if any thing more is meant, I do fay that it is contrary to the practice of this Court, and would be eftablilhing a inoft dangerous precedent. If, therefore, this lady can- not give her evidence in this manner, I muft, however painful the duty may be, objeft to any dejfofmon which is made by reading from notes of another kind. Mr Hope. My Lor-1, fmce I began to make the nature of law my fludy, I have always thpught, thatvif there is one maxim which ought to be held more facred than o- thers, it is, that mere form fliall never ftand in the way of truth and juftice. Now, my Lord, how are thefe toi be obtained, if witnefles are to be precluded from giving their evidence, in the only manner in which they poilibly can give it ? We have brought forward many facts with regard to that fpecies of infanity vrith which the pannel 5s affli&ed. We have traced him in his wanderings about the country, but do your Lordfliips imagine, that thefe were the only occafions on which his diforder appeared Would his own family proclaim to the world his melan- choly fituation ? Is it not to be fuppofed, they would ra- ther be careful to coilceal it ? My Lord, in the cafe of eccult crimes, the members of a family are always admit' ted to give/evidence, becaufe the truth cannot be obtain- ed, in any other way : Now, although the insanity of the priibner has accidently been obferved by others, yet no one can doubt, that it muft have been much more fre- quently obferved by his own family. It is therefore an occult fa8, wich although it has been partially proved otherwife, can certainly be completely eftablifhed only by the evidence of members of the family. The cottniel at the table^ are not the only counfel for the priibner, your Lordmips are bound as much as we are to ice thi't his caufe is not injured ; and is it reafon or juilice to rcfufe to allow this lady to Ir.ok at her notes, when me has declaimed, that {lu: cannot give hsr evidence in any other niunner. L My ( S2 ) My Lonl, it is not for Mifs Kinloch, it is for her fejrT I afk it. JVIuil not any woman of delicacy be confufed and agitated at appearing before this public Court ? How much more fo on fueh a melancholy occafion, for which this Lady comes. When (lie is in fuch a fituation of diftrefs, a fituation, which were (he not in, I am fure both your Lordfhips and the Gentlemen of the Jury would think it a much ftronger objection to her teftimo- nv, than giving her evidence from notes. Will you, or can you deny her the affiftance neceflary for counteract- ing the confufion and agitation, which it would be a crime in her not to feel ? But it is not to your feelings, it is to your juilice I ap- peal, For what is the objection but a mere matter of form? Your Lordfhips have faid, that when ilie is on the other fide of that wall, at the very moment before flie enter's this Court, (lie may perufe her notes j but when flie comes to the foot of this table, that is, at the very moment, when fhe Hands moft in need of her notes, fhe is not to look at them. Shall it be faid in this free country, in this en- lightened age, that truth fliall be withheld upon fuch frivolous pretences ? Upon fuch a mere fiction, nay what I had almoft called a quibble of the law ? My Lord, Were I the conductor of this profecution, I declare, I would rather abandon it altogether, than fupport it by luch means. The Court determined, that Mifs Kinloch might lock at her notes, and then give her evidence upon oath. Lord Juftice Clerk. I was always of opinion, that wit- neffes had a right to look at their notes for the purpbfe of aflifting their recollection ; but at the fame time, I think Mr Hope was rather too warm, when he faid, that your Lordihips were putting form in the way of juilice. It "was not on account of form that the Court decided againft a witnefs redding his notes, but frcm a clefirc of keeping pure the channels of jultice, by i offering no prac- tice to be eitabiifhed, which mi^ht tend to corrup; Mils Kinloch was now brought into Court, atflftpde'd -v ( 8j ) ; Ly two ladies in mourning, and was feated at the foot c the table below the bench. She was examined by Mr Hume* who repated her anfwers aloud to the Court and Jury ; the Lord Advocate of his own accord having offered to take them in this way, upon feeing that the witneis was agitated, and unable to raife her voice. She depon- ed, That (be had frequently heard her father Sir David fay, that the Major had never been found fince he came from the Weft Indies. That one day, about fix or'ftven years ago, (lie heard Sir David enquire for the Major, and being informed that he was gone for London, without giving any previous notice, he faid, " That poor mad * fc creature Gordon, is much raiTed at prefent ; and I am, " afraid that one day he will be in a ftate of confine- " merit." Tha on feveral occafions, when Gordon was doing flrange and unaccountable things, Sir David has faid, " Poor Gordon's head is vary much turned," and other expreflions to ' that effeft. And in particular, (lie remembcjs that on one occa.ficn, when the family was at Wopler, and Gordon was hallily taking leave of them, Sir David faid, " Poor Gordon, his malady is coming on." That Sir David once told the witnefs, that Gordon had taken it into his head that he had ligned a renunciation of his inheritance, and this he mentioned as a proof that his head was turned. That the witnefs was from her o* v w. obfervation convinced, that thefe remarks of her father's wero juit, and his opinion too well founded. That in the end of March and begining of April lall, the witnefs ob- iierved his malady plainly coming on, and gradually gain- ing ground, and becoming more violent than ihe had ever feen it before. That the appearances about him were fo alarming, that flie apprehended danger to her own life, and was afraid to be alone with, br near him. On the Saturday, Sunday, Monday andTuefcky, preceding the fa- tal accident, flic never favv the fymptoms of his malady fo viol it ; in fo much, that fha adviled Sir Francis to fend f n* medical aiiiilancc, and to have h'un it-cured leaft ha harm to himfelf or others ; and (he thought this advice dyice fo neceflary, that fhe always kept out of his way, pnd had for weeks before locked the door of her bed-room for fear of his coming in upon her. That nothing occur- re.d afterwards, to make her think that this advice was groundlefs or unneceffary, but on the contrary, every thing confirmed her in her opinion. That on the Monday the Major told the witnefs that he had taken poifon, and took out. his watch, and requefted her to take it from him as a keepfake, for he had not many hours to live; and at this time he was in a ftate of extreme agitation. Upon the Tuefday, when {he went up to her chamber, fhe .defired the fervants to hold Gordon's room-door fait, while fhe paffccl it, and flipped by, as fhe was afraid he might follow her, and perhaps make away with himfelf before her face. When he laid he had taken poifon, {he did not at the time believe him, but {he afterwards found, that he had fwal- lowed a whole phial of laudanum, which he had taken from a cabinet in her room. That fhe would not, on any account, have retired to her room on the Tuefday night, if ihehad in the leaft fufpeted that SirFrancis himfelf meant to feize him, for fhe knew the danger of it ; and that Sir Francis had told her, that the Major was more quiet than he had been, and that they would not feize him that night. Being interrogated by the Lord Advocate, the witnefs deponed, That the family never propofed to take any fteps againft him as an infane perfon prior to the Sunday. On Tuefday Sir FYancis told her, that Gordon had been out all night wandei'ing in Beanfton wood, and was raving mad. Again interrogated by Mr Hume, {he deponed, That on the Tuefday evening, the Major more than once at- tempted to break into her room, which was locked againft him ; and on thefe occafions, he complaihecPthat the wit- nefs refufed to fee him, when Sir b runcis law him, and was ib kind to him. Mr Hume. Though I have reafon to believe, that a more detailed and particular examination of Mils Kinloch v/ould bring out many ftrpng circumi^anccs in the pannel's favour. fnvi'ur, nnd though it was at firft ir.y intention to proceeded in that manner, yet, in her diftreiTmg fituation!, and as I hope the cafe will not require it, I fliall forbear to prefs it farther, and content myfelf with the few gene- ral queilions which have been put. JOHN WALKER, Tenant in Beartfton, examine! byWt HUME. Did you fee the pannel on Tuefday the 14th qf April ? Yes. You will endeavour to recoiled what paffed ? About a y after five in the morning, as I went out to yoke, I favv a gentleman walking near my houfe, which is about a mile from Gilmerton. He was drefied in black, and cried halt. This gentleman turned out to be the Major. Was there any body with him? No. What further pal- fed ? I fhook hartds with him. He leemed much fatigued. His clothes were difoi'dered, and his appearance confufed, and I invited him into the houfe, took him up flairs to a room, and recommended a bowl of tea and a bed. His (lockings were very wet, and {tuck to his feet and legs. . I at firit conjectured, that he had been up all night at Mr M'Leod's, but when I hinted this, he faid in a furly man- ner, John, Don't afk me where I have been. I rubbed his feet and legs until they came to fome heat, and then he lay down upon the bed. He faid in an angry tone, before I left him, that he would not be wakened. About five o'clock in the evening, however, being a good deal alarmed, I went up ftairs to fee if he was a- wake, and knocked at the door, which I found was barri- caded within, now fays I to the Major, it is Jtve o'clock ; It is time that you ivere up. He rofe, and removed fomQ chairs, with which he had barricaded the door, and then he opened the door a little, and looked out with a wild appearance, naving two piftols in his hand. He afkecl me, after I went into him, If my wife had any laudanum ? 1 faid, perhaps Ihe might have a little ;' but he anfwered, that he would take 50 drops, and that nothing lefs v/ould do, for that he wanted an everlafling lleep, ue- ver 10 \vakcH. Then he walked up and' down th* room ( 86 ) in gtv?t agitation, fometimes pointing a piftol to h-if left fide, and prcffmg the muzzle under his ribs towards the heart, and at otner times pointing it to his ear or his forehead. I attempted to expoftulate with him, but he faid, (and here the witnefs ufcd a loud and pofitive tone,) 44 Don't interfere, John." He then fat down, and defired . me to draw a chair near him, after which he beat upon his breaft, and exclaimed, Ah I John. He next prefented a piftol to himielf, repeating again, " Don't interfere *' John" I alked, if any of the family had offended him .' He made no anfwer to this queftion, but faid, 41 Above all things^ I ivou.'d ivi/b to fee William heid and tf Sandy Kinloch" He alfo faid, he would take fome tea. I went down flairs to order my wife to get the tea ready, and to fend for William Reid, and I then faid to her, " If a piftol goes off, be not furprifed, for the Major " is deranged in his judgement, and I am afraid, he will *' make away with himfelf." I took up the tea. I poured fome into a faucer, and, held it to his lips, for he was not in a condition to carry it t6 his head himfelf. It was hot, and he faid, " John " you have burnt me. 7 ' He drank three faucers full of tea, but did not eat above an inch of bread. All the while I was helping him to the tea, and holding the fau- cer to his head, he held a piftol, (which I favr, and heard him cock,) to my fide, within three inches of my belly, keeping his thumb upon the cock, and his finger at the trigger ; I was much alarmed, but when I went down ftairs, 1 did not let my wife and daughters know the dan- ger I was in. When did William Reid come, and what pafled ? He came loon after. I informed him of the iituation in which the Major was, and defired him to tell Sir Francis to fend all the men in Gilmerton tofeize him, for he -would do mifchief either to himfelf or fomebodf elfc. William Reid went and knocked at the room door. The Major opened, and fet it ajar a little, and looked out prefenting a piftol before him. William retired fome [tens down the ftair at firft; ( 8 7 ) .krft; but aftei wards, on the Major preffing him, ana alluring him that he would not do him any harm, he wen':, into the room j but in a fhort while catne down Itairs, and went away. The Major came down ftarirs foon after, and faid, " John you m,ull give me a convoy." I went out with him, but we had not gone far when pafling by the ftack-yar J, he laid, " John, there was my bed among the Tracks laft night." I anfwered " while there was a bed in my " houfe, I am fure you had no occalion to lie'there." He de- fired me to walk before him ; but hearing him cock a piftol at my back, I was alarmed, and turned about. He. faid " Are you afraid John," I replied, " No, I am fure, I " have no reafon to be afraid of Major Gordon." Soon after I heard him let the piftol down to the half-cock, and in a little while I heard him cock it again,aBB in this manner we walked on together ; the Major keeping behind me with the piftol. I now began to look about for an opportunity to efcape, but finding I could not fafely get away, 5 went on, until we came to a walk, which I knew the Major was fond of, I there took leave of him, un- der fome pretence, and returned home, very happy to have efcaped as I did. WILLIAM REID, gardener at G timer ton, examined by V, ' Mr HUME How long have you been gardener at Gilmerton ? For 23 years. Had you occafton to fee Major Gordon on Mon- day the 1 3th of April laft ? I faw him about one o'clock in the afternoon. What pafll-d then? The Major was walking from the houfe towards the garden, when I heard him call to me by name pretty fharply ; on which I turned back and wetat up to him, and took off my hat, which he delh'ed me to put on again, The Major then, with a good deal of agitation, felt fir It his waiftcoat pock- ets, then his breeches pockets, anU then his waillcoai: pockets again ; and ieemingly much disappointed at not finding what he wanted, faul, with a melancholy tone, M I thought I h*J had foinething;" upon which 1 (think- r 98 ) i>ng that he intended to give me fometlung,) begged to b excufed, and faid, that the Major had often- been kind to me and my family. The Major then took feveral ftrides backwards and forwards, feemingly in great agitation ; whereupon I faid, that I was fbrry to fee him not well ; but he made no anfvver, and (till continued to ftride back- wards and forwards, and [ left him. Did you fee the Major on the afternoon of Tuefday the I4th of April ? Yes. About five or half-paft five, a fervant maid of Mr "Walker's came down with a meflage from her matter, defiring me to come up to Beanfton immediately, for Ma- jor Gordon was there in a very deranged ftate. Did you go, and what patted ? I met Mr Walker at the door. He took me afide^ and told me, that the Major had eome there between five and fix in the morning, and that he had arms with him. Then Mrs Walker came out, and defired us to go up flairs immediately. Mr Walker rap- ped at the door, and told that I was there ; on which, the Major juft opened the door a few inches, looking out with a fufpicious countenance, and a piftol in his left hand, and again fhut the door. He had a very raifed, /wild look, and his eyes had a very particular appearance. His hair was hanging loofe, and his ftockings off.- I law the piftol, and told Mr Walker, that I would not go into the gentleman In that condition. Did you- afterwards go into the room where the Major was, and what paffed there ? After I got down a itep or two of the ftair, the Major again opened a litcle bit of the door, and faid, " Is that you, William?" I faid it was. He then opened the door, and prefled me to come in. I refufed, unlei's he wquld lay afide the piftol ; on which he faid, " Upon my " my honour, William, I'll do you no harm."- I again begged him to lay afide the piftol, which he agreed to do ; and I heard a found, as if he was taking it from cock to half cock. When I' went in, the Major imme- diately clapped to the door, and put a chair upon the handle of it, ib as to have fome purchafe. I ftill obferved the piftol in his h : and, and, ?.]< r's fituatton ? Yes. I called out Mr McMillan to the lob- by ; but before I had time to fpeak to him, Sir Franc is himfelf came out ; and I told them what had patted, and added, that I would on no account fee the Major, as I was afraid I had offended him by not going back. wli2n he rapped for me. Did any converiation pafs re- fpcfting the bit of paper which you had received from the Major at Beanfton ? On the road from Beanfton I looked at it, and' found it to be an EnglLI:! bill or bank note for L-3O. I accordingly {hewed it to Sir Francis and Mr McMillan in the lobby, and gave it to Sir Francis, who re- turned it to me ; and I next day gave it to Mr Hay Smith meffenger, to be delivered to Mr Frafcr. Did you again fee the Major in the courfe of the Tuefday evening? Yes, while I was in the lobby with Sir Francis and Mr McMillan, I obferved the Major pretty nigh com- ing under the trees towards the houfe j upon which, after repeating that I \vould by no means meet with him, I went through the lobby towards the fervants hall, where I found the brewer, and told him, for Gou's lake, to go to the lobby and make himfelf ufeful, if he was wanted. Did you afterwards fee the Major that evening ? Yes, ib:ne- time after, Sir Francis came and told me that the Major was in his room, and requefted, as he feemed to have a go'jd opinion of me, that 1 might go up and endeavour to get the pittols from him, and perfuade him to go to bed. Though I was under ccnuderable apprehenfion, 1 coufent- e J to go at bir Francis's requeft j and accordingly went into into the room,'refolvingatonce to put myfelf upon the Ma- jor's mercy. The Major, however, received me kindly, and fhook me by the hand, faying he was glad to fee me, Mr Hume. Mention all that paffed. In a little, the 'Major went to the head of the flair, and to the door of the room where the young CunlhTes were, under the care of my daughter, who had bolted the door. The Major faid he mufl be in to fee the children, of whom I knew him to be very fond, on which I called to my daughter, that (he need not be afraid, but might open the door, which (he accordingly did, and the Major went up to the bed, and clapped Mafter Cunliffe on the cheek ; but, on my begging him not to wake the child, he came away, and faid he would go to his bed. He .accordingly returned to his room, and I went down ftairs, and into the butler's parlour at the foot of the ftone flair. Did you then leave the houfe ? No. Being fufpicious of wHat might happen, I watched every foot I could hear in the ilair, and foon heard the Major come down ; on which I followed him into the lobby, and Sir Francis, who was there with fome of the gentlemen, pointed to me not to let him out. I accordingly ran up, and got the Major under one arm, while Sir Francis took him by the other. The Major, however, got a little way on the gravel be- fore the door, when he jufl turned about, and looked up flaring wildly at the front of the houfe. The Major then returned to the houfe, and, when the gentlemen quitted him, paffed through the lobby, and tried to open the back door j but, on finding it locked, he went up the wooden flair. I followed him, and faw him try to open feveral doors ; but, on finding them locked, A Iked what was the meaning of all that ? and the butler made fome excufe, that they had been wafhing the rooms. The Major then returned to his room, and fome time after faid, he would go to bed j on which I wiflied him good night, and he faid, " Good night William, and a heaven - " ly morning." Did you immediately go down flairs? I flaid in a imall room at the head of the ilair, and foon heard ( 93 ) heard the Major leave his room, and ftepped forward to, meet him, and prevent him from going down ; on which the JVbjor feemed difolo-jfed, and fa^icU " What is the " meaning, William, of all this intereft you are taking 41 about me to night . ?<> ' I anfwered, " I thought you had " heen in bed Sir, and am afraid you will catch cold go- 44 ing about in that manner," He Lad many of his cloaths off. He then told rr\e to go home to my family, and not mind him ; and after this he went, hack to his room, and I went down to the butler's parlour. Were you not foon afterwards fent for by the Major? Yes, on my go- ing up he defired me to ihut the door, which I only pufhed to, without fnecking it. The Major next defired me to lift in a table that was Handing at the end of the room fartheit from the door, which I was airraid to do, as he would thus be between me and the door ; but, upon his again deiiring me to lift in the table, I did fo. The Major immediately laid down upon the table a book which he had in his hand, and which I believed to be the bible ; and he repeated fome lines of poetry, which I do not recolle&. After fome converfation, the Major ob- ferved, that the door was not fliut ; upon which he feem- ed to be angry, faying, 4< How could you deceive me, 44 William, by making me believe that the door was fhut *' when it was riot?" I excufed myfelf by faying, I thought it had been ihut,; upon which the Major repeated the or- der, and I was obliged to fhut it. When the Major faw the door was fb,ut, he went towards the eaft window, and one of the ihuiters being fliut, he flung it open, and then put feveral queftions t : i:;jd Ly Mr -RAr.. How long have you been acquainted \\itli the pannel ivia- jor Gordon Kmloeh ? Six year. c . On what occafion did you become acquainted ? I was called to him in September 1789, in Mrs Warden's Grafs-market, where 1 iVund Iv.-.n fitting in a fm:dl bed room, with one di'h.is wrills wrapped up in a handkerchief, which was very bloody. He was in fuch a Hate of agitation, ivncl menta) 'ierangement, that could hardly give any account of his wound ; thcai^'i lie hinu-d, that he had liUtt hiarfelF by pufliing his hand' through the window of a carriage. '1 his appeared i poffible from the nature of the wound ; and the man, who had called me to lee him, tol,' tilion lufpedled the Major -had woturieft hi/, 'the carriage; and in this opinion we v. i'iarching his [tockets ait; r he was put to K : ing a fulfill knife, the blade of v. l.ieh was bloo;' iliil more, by his evuc.!ir. any enqrir\ c.r, ! hs never denied it. 'Was occ;>fi ;: : ; . .' t.a iiis ditbrdur proce. . . -. of his pulfe, did: net indicate a fufficient degree of fever, to account fun* the fymptoms. How long did he remain in Wardens ? Several days. I got him removed to a houfe at tlie head of the Cow- gate, occupied by a Mrs Cameron, who kept boarders. How long did you attend him ? About two months. Was he deranged all that time? For the firft month, he was very unfettled, being at times more rational, and at other times quite fulky and deranged, though in a gradual itate cf convalescence ; and h v.* us about two months before I thought it fafe for him to leave town. Did you ever fee in tli2 pannel any other fymptoms of de- rangement? Yes. About the firtl of April lnit,I met the Ma- jor coming along the North Bridge very faft, but ibnietimes flopping, and looking down. He was patting me ; I flopped him, and had fome converfation in which he appeared very Incoherent. After parting, he turned, and called on me On my coming back he looked ftveral minutes over the pa- rapet of the North Bridge, towards the cattle, and, appear- ing ilill more agitated than before, fuddenly exclaimed, II Good God will that man," (alluding to a gentleman whom he named) " do nothing for hiinfelf r" On my expreffing ignorance of his meaning, he laid " Will he not go out of the world like a Gentleman? I have' advifed him to it, as the only tiling leit for him to do; but I am afraid he has not fpjrit." Fiom this, and the whole of his appearance and converfation, 1 was afraid that the Ma- jor would do fome mifchief to himfelf. This fear I ex- prefled to Dr James Home; and I afterwards uriderftooJ, that he mentioned itj.o fome of tlie Major's family. When did you fee the Major next? In Haddington jail. What ihite was he in? He was in irons, and did not feem to undenbtnd his fltuation properl/ ; for, inflead of touch- ing upon the accident, which occationed his being there, he began immediately to complain cf the irons hurting his feet, which were gouty. Have you feen him fines he came laft to Edinburgh ? have vifrted him almofV every day fince 'he v/as in Edin- ;h jail. How have you fjund him .' I liav? found him frequently frequently much agitated. I never could get him to reft upon one fubjeft for many minutes at a time, excepting the melancholy accident j but even from this he would ibme- titnes proceed abruptly to the moft trifling, and totally unconne&ed fubjeft ; and, on one occafion, in the ( courfe of a converfation about the accident, happening to obferve an uniform button on my coat, he feized it like a child, and alked if he could not have a fet like it. On the Saturday after his being brought to Edinburgh, 1 found him very fulky, going about the room in great wrath, and com- plaining of Major Mackay's having ufed him ill, indefiring him 10 apply for counfel and an agent to make his defence. He laid this was a thing which nobody had any thing to do with, and he would make no defence j and it apjpearetl very clearly to me, that at this time he did not know what was meant by a defence. Sometime afterwards, on being informed that Mr Hope and Mr Bremner had been employed, he afked upon what authority, was very fulky, and faid he did not underftand how any perfon ihould be e.mploytd for him without his own confent. Did you ever hear the pannel regret, that he was not prevented from committing the unlucky deed ? He has frequency, in my hearing, expreffcd his regret and aflori- ivhinent, that he was not prevented. Were you requefted to ufe your influence with the pannel, to prevail with him, to give fuch information as might aid his defence ? I was, but could not make him underftand the neceffity of giving any information, and accordingly, none was obtained from him. Did he ufually make rational anfwers to any queftions you put to him ? I have often found great difficulty in getting any anfwers at all j and, when i did, they were generally from the purpofe. Dr. FAROJJHAUSON, croft examined by tie Lord Advocate. When you attended the pannel at Warden's, had you oc- cafion to kn >w that he had fwallowed a large quantity yf laudanum? On fearching his pockets, a large phial of laudanum was fpund, not quite full ; tut whether he h,ad iwallowed ( 102 ) fwallowed the whole of what the phial had contained, I cannot fay, though, from tne fmell, I believed that he had taken fome of it, perhaps a good deal more then an ordinary dofe. I could, however, obtain no informa- tion on the fubjel from himfelf; either during the period of his convalefcence y or iince. Did you ever caution him againft the ufe of laudanum? No. Did you. find him traftable ? In general I did, though fornetimes I was o- bliged to ufe ftrong exprefiions ; but he did eve.ry thing he was defired, except to take the quantity of bark and wine, which I thought neceffary for healing his arm. Had you any converfation about naming his counfelf While I was with the pannei in Haddington Jail, Mr Frafer's clerk came in with a line, which (in conftquence of previous information from Mr Frafer) I-undeiltood to be a recommendation to appoint ccunfel and an agent. Oa this, I left him and the clerk together; but, in a fhort time, I was again fent for by the Major, who fhew- ed me Mr Frafer's letter, and afked my opinion of it I approved of Mr Frafer's fuggeftion ; and, on the Ma- jor's hefitating as to whom -he fhould name, from his not being particularly acquainted with any counfcl,! propofed to get an almanack and examine the lift of the Faculty. We accordingly procured an almanack ; and, in the cuurfo . f reading over the lilt, the Major named the Dean of Fa- culty, and Mr George Fergufion. I afterwards under- fcood, that he wrote to both thefe gentlemen, though I am certain, that he recolledls nothing about his having ap- plied to Mr Ferguffon, and recollefts the application to the Dean, only in confequence of his having received an anfwer to it lie afked me what was the meaning of. an agent. This I endeavoured to explain, but found it impoilible to make him underiland the necefiuy of employ- The Exculpatory Proof being c!ofe:l, the Lord Adw- taie rofe, and addreffed the Jury in funport of the ] .vofj- cution. His Lordfnip commenced his fpeech at about aft four o'clock on Tueiday morning. ( "3 3 LORD ADVOCATE'S SPEECH. Gentlemen of tie Jury, THE duty which you are fummoned to difcharge as a fpecial jury, is of the moft important nature, i mould be ilating what is not true, and what it would be very improper for me not to mention to you, that an alteration has taken place in the clofe of the evidence, which confiderably changes the appearance it had at its commencement. The prefent cafe is not one which in its nature is attend- ed with any confiderable degree of difficulty ; or where the rules of determination are not plain and obvious : But I Ihould be departing from that which I have always done, and which I mail always continue to do, in every criminal trial, were I to conceal from you what I really feel, that the evidence in favour of the unhappy perfon at the bar, has ultimately come out ftronger than I was aware of, or ex- pelled when I came into this Court. The Counfel who early in this trial opened the defence with that elegance and propriety for which he is fo remark- ably diftinguifhed, was pleafed to Hate that this was a moft neceffary profecution. He Hated no more than is true, and what you mufl all feel to be fo ; for ill indeed would the criminal juftice of this country be attended to, and much would thofe, whofe bufinefs it is to profecute of- fences, be wanting in their duty, if the life of a fellow-ci- tizen were to be taken without enquiry, and his blood per- mitted to flow, without a Jury determining on the guilt or innocence of the perfon accufed of having done fo. My brother, Mr Hope, in the courfe of a debate which arofe betwixt us, in relation to the admiffibility o certain notes propofed to be given in evidence on the part of Mifs Kiuloch, was pleafed to ftate, that, if he flood on the oppofite fide of the bar, he would not, as 1 did, have op- pofed the reading of the notes ; and added, that he would rather have abandoned the profecution. Gentlemen of the Jury, I am of a different opinion. I fhould have \i. every rule and principle of juftice, if I had dared to dif- P criminate criminate between the cafe of this gentleman, and that of the pooreft criminal who ever Hood at the bar, or have fuf- fered my feelings for his wretched and unhappy fifter, to lead me from the ftrict line of my duty. Though the pan- nel has not, through my perfifling in the objection, been de- prived of the benefit of his filter's evidence, whatever force it may have had on your minds, and however much I might have regreted had her diftrefs incapacitated her from giv- ing her teftimony in Court, yet, far from abandoning the profecntion on that account, I would without hefitation have called upon you to have given a verdict according to your confciences from the evidence before you ; nor would I, though I might have lamented the circumilance which oc- cafioned her abfence, have confented to an exception in her favour over other witnefles, or have thought that, by refilling the demand made for her of referring to notes, the fmalleft degree of blame could juftly be imputed to me. Having ftated thefe preliminary obfervations, I come next to the matter of fact. The Counfel for the pannel is pleafed to fay, that the killing is admitted. I could not ac- cept the admiffion : It is proved. . And I mould offer an in- fult to your underilandings, were I to utter a fingle word on the complete, fufficiency of that part of the evidence. To the evidence then we come, of what truly is the caufe before you : Is the defence of infanity proved to that extent, and degree, which law and reafon require, in excul- pation of the crime of murder ? The -Law of Scotland is', and muft in this refpect be the fame with the Law of England, becaufe both are founded in the plaineft and moil obvious principles of juftice. It is fuch as entitles the perfon who kills his fellow-creature to the full benefit of the detence of infanity, if he can prove it on a fair trial ; but I do fay, under correction of the Court, that it is only he who is abfolutely infane, who is perfectly mad or furious, that is free from trial, and con- fequently free from puniihmeot. He that is fubject to temporary fits of complete and per- feftmadnefs, cannot in like manner be puniflied for the actions he he commits in the midft of his delirium; but, for'thofs com- mitted in his lucid intervals, he is, with exceptions unnecef- fary for you to attend to. at prefent, as competent to trial and puniihment, as any other man. But there is a third dcfcription of perfons, and to this I requeftyour particular attention, for it is the description un- der which the prefent cafe falls ; I mean that degree of de- rangement which has been attributed to the pannel ; that degree of melancholy and depreffion of fpirits, which, tho* it may border on infanity, is neverthelefs accompanied with a fufficient fhare of judgment to difcern .good from evil, and moral right from wrong ; which never has, and iievercan be fuftained as a bar to trial, or a defence againft punifliment for a crime fo atrocious as murder ; but fub- je<3;s fuch perfons to conviction and punimment, as much as if no fymptoms.of derangement had ever appeared, or as if complete evidence had been laid before yon, that he was in. a lucid interval, and in the full pofieffion of his fenfes when the action was committed. It is unnecefiary for me, efpecially at this hour of the morning, to multiply authorities, in fupport of what mufl appear on the very ftatement of it, confiftent with law and with reafon. I could refer to fereral ; but mall confine my. felf to twp feort quotations from two eminent authors, one of this, and the other of our filler kingdom; I mean Sir George M'Kenzie in this country, and Lord Chief Juftice Hale in England ; not only becaufe they are known to be writers of the higheft authority in each country, but becaufe they ftate th"e law and the reafons of it with fo much perfpi- cuity, that no man can be at a lofs to underfland it ; and he has only to enquire how far the evidence' is or is not fuffi- cient to eftablifli the legal defence in the particular cafe un- der confideration. Sir George M'Kenzie obferves, ''.Such as are furious are not in the conftru&ion of law capable to commit a crime, Stat. 2. Rob. II. for the law- com- pares them to infants, or to dead men, L. Si J.Y/'J, F. de ac~ quirend. bercd. to fuch as arc ttbfent, L.fedji F. of Mifs Kinloch, joined to the teftimony of Reid, xvho faw him on the Tuefd ay- evening, with a phial, in which a fmall quantity of high coloured liquid remained, afford convincing evidence that his deranged ftate muft have in a great meafure, perhaps wholly, been owing to the fame.caufe. Had he, on this laft occaiion, for the firft time experienced the eflfefts of that dofe, even then, would the authority of Lord Hale have applied to'his . cafe, and difabled him from pleading the delirium as nn ex-, cufe. But, having once, oa a former occafioii, fufFered lo feverely, he mufl have- known, and is to be pr>lun:ed to have ( "4 ) have known, when lie f wallowed the fccond, that fimilaf eonfequences muft inevitably follow ; and it is for you to ccnfider, whether that circumftance does not obiige you to hold him ftill more directly accountable. To myfelf, Gentlemen, it appears to be proved, that the pannel was, from the Weft India fever downward, often in a ftate of derangement, but that attended with a fufficient de- gree of reafbn ; and that from the year 1779, , till he ap- Dears early on the Tuefday morning at the houfe of Bean- fton, or, at furtheft, till he appears on the preceding Sunday at Mr Goldie's rnaiife, there is not the imalleft veftige, of proof, to fatisfy }ou that he was in that ftate of lunacy, which alone can entitle you to fuftain the defence. The evidence of Mifs Kinloch, of Walker, and of Reid, as to his conduct and demeanour for the two days previous to the fatal ect, is of a nature different from what appears at an earlier period ; and upon its weight and fufficiency you will, giving due attention to the obfervations I have made, determine with impartiality, and according to the dictates of your own couicience. Gentlemen of the Jury, I have thus gone over a cafe which I ftated in the outfet as attended with fome degree of difficulty, and on what that difficulty is founded I have endeavoured td explain. It is but fair I mould acknow- ledge, that there are many circumftanecs attending his con- duct during the 48 hours prior to the event, which are fa- vourable to the defenpe ; and the evidence of Dr Home, of what puffed betwixt him and the late Sir Francis, is of the fame nature." It is for~you, Gentlemen, to confider what weight thefe circumftances ought to have, when contrafled with thofe which 1 have already fuggefted for your confi- deration. If he had been really infane, it certainly was the duty of his friends to lave taken long ago the neceffary and proper Iteps for having him fecured j even Hill, they have not advifed him to plead that in defence. He admits that he'is fane and well at this moment, and that he is com- petent to Hand trial before you. The rapidity of his reco- very from the alledged ftate of infanity, and the very fhort duration cf it, if it exifted at all, or to a fufficient degree to exculpate, are now" the fubjeft of your impartial and fe j rious deliberation. To ( "5 ) To thofe falfe, idle, and indecent reports, which I under- Itand have been circulated out of doors, refpefting this trial, you, Gentlemen, will pay as little attention as I do. You know your duty too well, and what juftice requires of you, to be bialTed on either fide in a queftion of this na- ture, or to be influenced by any thing but the evidence laid before you. We were told, to the aftoniflhment of us all, in the commencement of this trial, that even the pulpit it- felf had been made the channel of mifreprefentation. Be the man who J^ may 3 ye cannot but join in feeling indig- nation at his rally and indecency, who dared on the eve of a folemn trial to anticipate tine verdidt of an impartial jury, or touch upon a fubjecl: which I thought every man had felt to be facred from difcuffion. Gentlemen, if any o you have heard thefe reports, or liftened to fuch a preach- er, I am fenfible you will difregard them ; you will look only to the evidence before you, and decide upon it like honefl men. That the evidence has come out more favourably for the defence, than I had reafon to expect, a feeling of juf- tice has already compelled me to acknowledge. Where the force of thefe is weakened, and what are the topics, to which you, on the part oi; the public, ought to attend, I have endeavoured to point out : Should the refult be, to balance the whole nearly equally on your minds, God for- bid, that, where the life of a fellow-creature is concerned, I iliould attempt to perfuade you, were the attempt likely to fucceed, that the fcale ftiould not be inclined to the fide of mercy. ( 126 ) MR HOPE'S SPEECH. My Lord Jujlice Clerk, and Gentlemen of the Jury, I FEEL my felf greatly agitated. I have waited withextremd impatience for the prefent moment ; and, now that it is come, I \vilh I may have either ftrength or recollection to give utterance to the multitude of ideas which crowd upon me : the fubjeft really overcomes me, and I hardigJcnow how or where to begin. You have heard a very ingenious fpeech from the learned Lord, and I muft in juftice add, a very candid one; a fpeech, in point of candour, jull what I expected, and everyway be- coming his honourable mind : Indeed, his candour feerhed to be at variance with his duty and abilities, and evidently be- trayed him into inconfiftencies, which even his eloquence could not difguife. But, before proceeding to reply to him, or to give you my own obfervations on this cafe, there is one preliminary view of it which I cannot refrain from giv- ing you, becaufe it has made the ftrongeft impreflion on my- felf : It is indeed affe&ing beyond meafure, and teaches how vain and fleeting are even thofe enjoyments here, which we are the beft entitled to call our own. , Gentlemen, I defire to call to your remembrance the ho- nourable teftimony which you have* heard of the prisoner's character prior to 1780, and to contraft it with the fubfequent . melancholy change. See him entering early into the army, the fecond fon of an honourable houfe, hitnfelf pofieffed of an independent fortune, embracing the profeflion of a fol- dier, for glory, not for profit, and devoting himfelf to the fervice of his country, only for his country's fake : See him entering into that prbfeffion, of all refpe&able profeffions the moft refpeftable, himfelf the moft refpefted officer in the line. You heard the character which was given of him by thofe who knew him well, who have come from the extre- mities of the Iflandj .to which the fummons of this Court could not have reached them, voluntarily, to fupport a fellow foldier in diftrefs, and who, by doing juftice to his character for friendftiip, generofity, benevolence, humanity, and every focial and amiable accomplifliment, have, in the moft decid- ed ( "7 ) ed manner, proved their pwn title to ihare in the praifesj they beftowed. " Beloved and efteemed in his own regi- * ment by both officers and men, refpefted by the whole 6 line, and in every point one of the moft amiable characters ' they ever knew,"- were the words of his companions : Noble and generous friends ! I know not whether to admire moft, yourfelves who give, or your now unhappy friend who deferves fuch tcftimony. Such was Major Gordon, when in 1780 he failed to the Weft Indies, to that malignant and accurfed climate, which has been the grave of millions, and which feems to have been ceded to' Europeans by the wrath of Heaven, to be a fcourge and punifliment for the horrid barbarities they have a&ed there. Such was he, when, he failed, commanding a regiment of his brave country- men* all flourilhing like himfelf in youth, and health, and fpirits. ' View now the difmal melancholy change :' By heavens ! I cannot bear it ; O God, thy ways are juft, but lure they are infcrutable ! If virtue, honour, and humanity, ever deferved thy favour, or entitled their pofleflbrs to fuc- cefs and prosperity in this life, as well as happinefs here- after, furely the prifoner would have been the object of thy care : But Jet me not blafpheme, thy purpofes muft be ferv- ed, thy will be done. Turn then, Gentlemen, to the fad reverse. View the prifoner ncrw ftretched on the bed of ficknefs and of phrenzy ; nurfed and -attended by thofe friends who have here borne tefh'mony in his favour, and whofe friendihip, the danger of contagion could not deter from adminiftering to his relief. View him, by their care, re- ftored again to life, only to curfe the care which had fnatched him from the grave. View him now returned to Britain, alas ! how changed; changed, not in reafon only, but in his very nature ; the whole man absolutely loft ; and the amiable and generous Gordon Kinloch, become the fullen, morofe, jealous, and troublefome being, which he has fince occafior.ally exifted. See him often a plague and affront to that family of which he was once the flovverj fee him fhumied and avoided as a peft, by thofe very perfo'ns who once court- ed his company, and thought themfelves honoured by his friendfbip; fee him wandering from his father's houfe, coming he knows not whence, going he knows not where, but ( "8 ) r hut in all places an object of terror and averilon. View at laft the concluding fcene of this fad tragedy, his brother fallen by his hand, himfelf now anfwering for his murder : think on this fad change, and let it make you ferious ; think on the prifoner's fate, then think of the bleflings which yourfelves enjoy, and let it make you grateful. But, Gentlemen, miftake me not ; think not that I have thus appealed to your feelings, becaufe I have need of your compaffion. I defire not mercy, unlefs you can .give it me with juftice ; I do not think I have occalion to throw thp picture I have drawn into the fcale ; though furely, if the fcales were even, it would indeed turn the balance. I-have dwelt on this fubject, not fo much for the prifoner's fake, as for our own. It has taught me a leflon of humility, which I fhallnot eafily forget, and which none of you per- haps may be the worfe to learn. It may teach us all to acknowledge,, what all already know, that even odr cha- racters are not our own, and that our very virtues, as well as the faculties and powers of the body and mind, are fub- jeS to difeafe, to alteration and decay. It may teach us, too, how uncertain and worthlefs a reward is often human praife. At the other end of the ifland. Parliament is now employed in erecting a monument to one great man, who, perhaps fortunately for himfelf, died in that infernal cli- mate ; while you are defired to doom to death and infamy one not*kfs amiable, who unhappily furvived it. But I will not longer diftrefs your feelings, to which I have no occafion to appeal ; neither will I wafle your time in guarding you againft thofe prejudices, which I know you muil-have imbibed in confequcnce of the innumerable and infamous calumnies which were propagated on this fubject. If you had brought the moft inveterate prejudices into Court, I am fure they muft foon have been effaced ; for certain I am, that the firft two hours of this trial, if not fufficient to clear the prffoner, were enough to convince you how vilely he has been abufed ; by none more than bymyfelf; nor, in- c.ced, by propagating the calumnies which I heard, but by too eafily believing them : Believing to fuch a degree, that 1 at firft refufed to be his Counfel ; and at laft only confent- ed at the requcft of a common and refpe&ed relation. But very firit enquiry which I made into this affair, fr.tis- f.ed me, how much injuftice I had done the prifoner, and-I truftthis day that I fhall make him reparation. Gentlemen, fatigued as we are, I fiisll not trouble you with going into the evidence in detail. I fiiall .take the great features of this caufe, referring to the particulars of the evidence, only in fo far as may be neceffary to coniirm the arguments which I fliall advance. But, before proceeding to the evidence, it is neceffary to f^y a word, and but a word, on the law as laid down to you by the learned Lord : I mall net pretend to enter the lifts of definition either with the learned Lord himfelf, with M'Kenzie, or xvith Hale ; they are all great and able men ; but I fufpecl: much that they are better lawyers than phyfi- cians, and that they have given way too much to a profef- fional prcpenfity to fubdivide and methodife. For my part, I (ball not attempt to reduce madcefs to fixed rules ; nor to He-fine the different kinds and degrees of ir, which I have always found to be as numerous and diverfified as the un- happy perfons who were the fubjecls of the diforder. I ihall not fpeak to you in technical language, which none of us probably underfland, and which, unapplied to particular cafes, and unexplained by examples, conveys to my mind no pofitiye and precife ideas. Indeed, after all the learned divi- lions and fub-divifions of M'Kenzie and Hale, they are both obliged to confefs, that, thefe notwithstanding, the Jury mull judge from the circumftances of each particular cafe. For my part, I think there is but one juft and practical obfer- vation on this fubjecl in either of their works : That, what- ever may be the general and ordinary degree or fymptoms, of the diforder in the patient, if a total infinity be upon him at the time, it excludes /the poilibility of guilt or of punjfiiment. This is common fenfe, and it can be reduced into practice. By this rule I defire you to try the prifoner 5 and, if you wifh for a definition either of the kind or degree cf his infanity, you will find a better one in the evidence before you, than in the abiVracl and fpeculative definitions of M'Kenzie or Hale. If yon wiih foi* the kind or fpecies oi his madnefs, the witncifes will tell you, it was of that kind as to make them apprehend mifchief either to hirrifelt' cr to others ; to make tim apprehend plots, and mifchief, R and and danger from all around him, particularly his heft friendis, which Dr Monro told you was the never-failing and ftrongeft fymptom of entire madnefs. It was of that kind that made Somner fay, he had no doubt that he would have fhot any perfon who attempted to feize him ; it was of that kind, which made Frafer think him " dangerous to ' mankind" Descriptions like t'nefe, from perfons who witneffed his behaviour, are worth all the divifions and de- finitions of the learned Lord, and his two learned authors. If you vrim for the degree of his diforder, it is in fome jneafure implied in the above -defcription of its kind, and can be further read in the advice which every perfon gave to confine him, and in the preparations which the family had actually made for coercion. Indeed, his madnefs feems to have paffed degrees, and to have arrived at its crffis, as Frafer 'emphatically termed it." If therefore, Gentlemen, you are fatisfied, from a re- view of the evidence, that his cafe does correfpond with the above defcription of it, you will acquit the prifoner, although you mould not. find his cafe to agree exactly with the pre- fumptuous definitions of the lawyers : Prefumption indeed ! to attempt to trace the infinite varieties of a difprdered ima- gination, which, even in its found and natural ftate, is the ihoft boundlefs and unfettered' faculty of thre human mind. We, Gentlemen, will purfue a humbler and a fafer p'ath j and, inftead of endeavouring to arrange, andxlafs, and de- fine and limit madnefs, we will endeavour to trnce its pro- grefs and effects in one individual unhappily affli&cd with it. now, Gentlemen, proceed more directly to the cafe; and I vvimfirft to call your particular attention to an ar- gument and admiflion of the learned Lord, while it is frefh in your recollection, and of which I wifh you never to lofe fight. It is decifive of the cafe for the prifoner ; and I was aftoniuSed that the learned Lord could dwell on the topic fo long, without obferving the fallacy' of his argument. He admitted t,hat it was proved by a variety of witnef- fes, particularly the gendemen from England, that the prifoner prifoner had been frequently deranged to a very confider- pble degree. But he contended, that their tcflimony muft be thrown entirely afide ; becaufe, whatever was the a&ual degree of derangement to which the pannel had formerly been liable, his relations, who are proved to have known of it, did not conceive it to be total or dangerous, becaufe it was proved that they had never thought of taking any mea- fures for fecuring him. Now, this certainly proves, as the learned Lord has juftly ftated, that his derangement had never before, (except in the inftance fworn to by Dr Far- quharfon), amounted to total arwj abfolute infanity That his difeafe had never before corne to a crifis, to ufe the cni- phatical words of Mr Frafer That his relations were not afraid of mifchief from him, at leafl to others. But, becaufe he never before was totally and dangeroufly ini'ane, could any perfon have juftly concluded that he never would be fo ; or is it any proof that he was not at the time of this ac- cident ? I admit, in the words of the learned Lord, to which I beg to refer you while they are frem in your recollection, that his derangement on former occafions does not appear to have made fuch an imprejjion on the family, as to fug- geft to them the propriety or neceffity of adopting any mode of coercion, I admit with the learned Lord, that the im- prtffion which his family had of his former attacks, is the beft evideoce we can have of their nature and degree. In this admiffic-u, I perfectly agree with my learned friend. I defire to prefs it moil earneftly upon you, for it is an ad- miffion from which I will not fuffer him to depart. But, if the impreffion which his difeafe made on his family on former occafions, is. to be evidence that he was not totally mad, what will the learned Lord make of the impreffion and conducl of the family on the laft occafion ? What will he make of the very fame impreffion entertained by every friend of the family ? What will he make of the advice: which they received from thofe friends, whether of the pro- feffion or not? If the impreffion which his iituatiou made on the family is to be evidence, and it certainly is the bell, then What was their impreffiqn at the time of the melancholy event ? Is ic not proved that every meiuber of the family was convinced of the abfolute neceffity of immediately fecuring- him ? Is it net proved that every friend who faw him. w.as of the fame opinion ?. ~i> i: proved ( '3* ) Droved that they gave the family, and in particular Sir Francis, information of their opinion, accompanied with the mcft earneft and decided advice ? Was not this advice fecond- ed by their medical friends, who, to' the common obferv- ation of mankind, added the certainty of fcience and ex- perience ? ,Did not this irnpreffio'n travel with the prifoner from place to place ? Wherever he was feen, did not perfons f without communication or concert, inftantly conceive the fame opinion of him ? He is feen in Edinburgh as early as the sSth March by Dr Home and Dr Farquharfon, who communicate their obferv.Tttons of his malady to each other. Dr Home informs Sir Francis, who inftantly tells him he Lad obferved the fame. The prifoner goes to Gilmerton ; his fituation is remarked by his lifter, who communicates it to Mr Somner ; but fhe only tells Somner what he had obferved before. He goes to Mr Goldie's, who forms a decided opinion that he ought to be iecured ; Mr Goldie goes to Gilmerton to impart this opinion to Mifs Kinloch, who meets him only by telling him that ihe liad already anticipated his advice,, and had fent for Somner. Somner and Frafer come to Gilmerton on the Monday morning, and not only advife, bat urge and expoftulate with them on the neceffity of fecuring him. At laft, on the fatal night, Walker fends from Beanilon a meifage by Reid, to land up all the fervants for that purpofe; and Reid, in the very ac\ of delivering the mefTage, is frightened by the prifonet's ap- pearance. In the courfe of the evening, M'Millan interpofes with iimilar advice, and obtains permiffion to write for Somner j and how does he write? he writes as of a matter perfectly familiar, and of which they were all perfectly aware. He x defires him to come immediately, and bring with him iukat is neceffarji.' Does this appear vague and inexplicit to Somner ? Is he at any lofs to interpret it ? No; and' how does he interpret it? he underftands it at once to mean a keeper and a ftrait waiftcoat ; fo well did he know what the family thought, and what they had intended to do. When he comes with the apparatus,^does he. retract 3iis advice, or do the family alter their opinion? Is their ** impreffion," to ufe the learned Lord's favourite word, altered or dimiuifhed ? No ; Somner continues to advife, and thev to refolve : not fatisfied with the afliftance in the lioufe of three or four men fervants, bcfides apoft-boy from Haddington, Haddington, they fend for three labourers from the farm, Here is another impreffion for the learned Lord, an impieT- iion of danger, as well as of neceffity. They muil have feen ten thoufand circumftances in his behaviour, which cannot be conveyed to you by defcription, before it would have been thought neceflary to take fuch precautions as thefe. But we are told that the farm fervants were dif- mifled, and this is given as a proof that coercion was aban- doned. If it was, the event only proves that it was moft foolijhly abandoned; but the contrary is proved; it is indeed true, that the labourers were difmiffed, under the delufion of a momentary calm- ; but is it not proved, that in a few minutes they were again convinced of the neceffity of co- ercion ? Is it not proved, that, after* his firffc appearance in the parlour, the fervants were called in, and defired to be in readinefs in cafe of his return. When he did return, and Sir Francis followed to fecure him, T have no doubt that he expected to find the fervants ftanding ready to affilt ; in- (feed this is clear from what, in his dying moments, he faid to Dr Home ; riot finding them there, he attempted it by himfelf, and by his other brothfr Alexander ; arid well might -he acknowledge, it was madnefs to do fo. Such, then, was the impreffion of the family on this oc- cafion of the abfolute neceffity of fecuring him. Had it been an " imprejjiori 1 '' only, I mould have maintained it to be good evidence, even although, from falfe delicacy or other motives, it had never gone beyond an iniprefiion. But, in fad, you fee them fo perfectly futisfied that their impjef- lion was right, that they proceeded to act upon it, by mak- ing moft wife -and falutary preparations, and thtn fpoiling all by an injudicious and ineffectual attempt. But their attempt^ though .fatal to themf^lves, is fufficien: for me. It is better than even the learned Lord's " im~ * preflion;" and proves to demonitraticm, that they were ful- ly iatisfied of the truth of the opinion they had formed,- both vn the" degrte of his derangement, and the necxili'j,- of coercion. And now, Gentlemen, in the fac'e of all thi* evidence, in, oppoiitiou to the opinion ot every friend who faw him ; in oppofi[io;> ( '34 j fcppofition to the advice of every profeflional perfon coniuh- id on the occafion ; in oppofition to the impreffion of the family, to the attempt of Sir Francis ; you, fitting here, wanting the flrongevidence which they had, hiseyes, hio looks, his geftures, hi* tones, his whole demeanour ; you fitting hare, I fay, are defired prefumptuoufly to determine, that ail, all were miftaken ; that the prifoner was not mad, and coercion not neeeflary ; and this you are defired to do ; Why ? Bc- caufe he killed his brother ! Wonderful conclufion ! If any thing was wanting to confirm the evidence arifing from the opinion of the family, that fatal event puts it beyond doubt. If it could be doubted whether Sir Francis too* thought him totally deranged ; I anfwer, he has fealed his opinion with blood. They had been taking precautions all night againft danger and mifchief from the prifoner ; and, when the dreaded mifchief happens, it is given you as a proof that their precautions were unneceffary ; admirable logic ! That they apprehended danger is clear. Why ? They have told you becaufe they thought him mad ; the mifchief hap- pens ; and that which they dreaded as the natural confe- quence of his madnefs, you are >to take as a proof of the foundnefs of his' underflanding. Gentlemen, I am tired with dwelling upon this topic. The defence arifing from the conduct of the family is fuchy that I cannot conceive what anfwer can be made to it. The learned Lord, I am fure, can make none ; for, the argu- ment was his own, and rhofl fincerely do I thank him for it. For my own part, I think we' have proved much more than we were bound to do ; for, if there had been ten times lefs evidence of infanity by others, and in other refpecls, 'i think the conduct of the family would be evidence enough. Gentlemen, th^s leads me to put a queftion to the learn- ed Lord, of which he does not feem to be aware. He has contended that the pri Toner's malady was mere melancholy and cTepreffion of fpirits that he was not mad was in the perfect knowledge of right and wrong knew friends from foes and was perfectly confcious of the nature of a crime. What then mult the learned Lord fay of the attempt to confine him ? Is he prepared to fay, that Sir Francis and the family were in a foul confpiracy againft the prifoner ? fear ( '35 ) that they were attempting aga'inft him a crime little lei's horrible than that of which he is accufed ? Is he aware, that the prifoner's condudl would then have been complete- ly juftifiable ? fcr, if there is any crime or attempt in na- ture, which may be repelled by the death of the agj>rc{Tor, it is a confpiracy and attempt to confine, as a mad;r,an, a perfon who is not fo. The learned Lord was not aware of this dilemma ; but I will relieve him from it. He ne- ver dreamt, more than I, of charging Sir Francis with ftich a crime ; and therefore he muit concede to me, that the prifoner's fituation juftified the means that were attempted to iecurehim, and, if fuccefsful, would havejuflificd his con- finement. I afk no more ; and, if the cafe had been my own, I would have refted it here. But I am too much interefted to omit other circumftances, though not fo material ; an4 therefore, tired as we are, I think it my duty to proceed. Gentlemen, I have not yet done with the impreffion of the family ; the attempt of the family to confine the prifon- er, is not only good evidence of derangement in general ; buc what the learned Lord obferved, of their having formerly neglected to do fo, proves to demonftration, that they never would have^made fuch attempt, but from the moft over- ruling and cruel neceffity. If the impreffion of the family is evidence of the exiftence of derangement in general, it muft alfo be good evidence of the meafurc of that derange- ment : indeed the learned Lord has fo pleaded it, and I iu- treat you to keep him to his argument ; i again repeat, that 1 entirely agree with him, that the circumftance of the fimily never having on any former occafion taken meafures fjr confining the prifoner, is the beft evidence, that, in all the former inftances which fell under their observation, they did not think the malady arrived at fuch a height as to require But what conclufica is to be drawn from tint circurn- ftance, with reference to their conduft on the late occafion ? Jf they did not attempt to confine him formerly, becaufe they "did not think him fufficiently deranged to require fuch. meafures ; then, their attempting to confine him on the late occafion, ought and muft be heid as good evidence that they did then conceive his malady to be arrived at that cri/ls (as Fraf.r ( '36 ) exprcflecl it) which rendered coercion necefiary, both as the means of cure and the means of fafety. If an argu- ment is to be drawn from the conduct of the family, as de- ifcriptive of their opinions, that argument muft be allowed to make for the prifoner as well as againft him. The family, on former occafions, fays the learned Lord, did not think the prifoner totally deranged, becaufs they neither attempt- ed nor intended to take meafures for fecuring him. The family, on the laft occaiion, did intend, and aftually attempt againft the prifoner, the moft marked and decifive means of coercion ; r.nd therefore, they did, on this occafion, consider him to be ota//y-infane. This is found argument and found fenfe, unlefs my underftanding too be woefully deranged. Gentlemen, the conduct, however, of the family, becomes much ftronger evidence of the meafure and degree of the malady, when the nature of the difeafe, and the feelings of the family, are confulered. Madnefs is a difeafe, which the family would not be very willing to admit, and ftill lefs to proclaim ; the fever, which was the caufe of it, happened abroad, and feems to have been little known in this country j for which reafon the family might juftly be apprehenfive, that the world would conceive the malady to be of the he- reditary kind. I fay, therefore, it is a di-forder which you. will not prefume the family would be very willing to admit ; you* will not prefume that they would make any unnecefTary expofure of their friend's mfsfortune, when they were furc that the world, with a moft uncharitable perverfenefs, would turn his misfortune to the family's difgrace. When, therefore, you fee the family attempting decifive and public meafures againft the prifoner, you may fafely conclude that it was not wineceflarily done. Noflight, no common degree of derange- ment would drive them to meafures fo repugnant to their feel- ings, fo repugnant to their intereft. This would have been the fair prefumption, even if there had been no evidence of the feelings of the family on the occafion ; but it is not left to prefumption; it is proved inconfeftably, that the family did knOAV and feel how deeply their honour and their inter- t-ft were concerned in the meafures {hey were taking. Sir Francis feems ro havs been particularly alive to the diftreiTes :of their fituation. Has not Frajfcr proved to you, that, when ?;e urged him, in the garden on Monday forenoon, to fecure the ( 137 ) the prifoncr, (his malady, in his opinion, being then come to a crifis, as he emphatically expreffed it,) Sir Franci* feeraed much concerned : But concerned for what ? Wa it for the prifoner only ? No ; A good man like him couid not but feel concern for a brother in fuch a fitua- tion. That would never have ftruck Frafer at the time, and ft ill lefs would it have occurred to him to mention it now: but he added, that Sir Francis feemed to feel it as a family affront. Thefe were his words ; and fo much did the witnefs oonfirler Sir Francis's concern as ariling in part from that caufe, that he has fworn, he thought it neceffary to expoftulate with him on the fubje&, and to re- mind him of the variegated nature of human affairs, and the, imperfect ftate of happinefs below. And is Sir Francis the man, whom you are to fuppofe would, within 24 hours, not only direft, but himfelf perfonally at- tempt, a meafure which he coniidercd thus to be affronting to his family, without the mod decided 4nd determined con- viftion of the neceffity of the painful ftep which he found himfelf compelled to take ? Still, however, you fee that he could net diveft himfelf of his feelings ; the family affront ftill appears to have dwelt on his mind, and to have produc- ed that fatal irrefolution, that falfe delicacy, that criminal lenity* I had almoft called it, which was the true caufe of the unfortunate event. We find him dire&ing his confine- ment one moment, and countermanding it the next ; at one time fending for the affiilance of the farm ferrants, and then difmiffing them on the moft equivocal appearance of abate- ment in the diforder, or rather on the fallacious fymptom of a temporary calm ; and at lali, when he did attempt it, doing it in fuch an undecided and ineffectual manner, as clearly proves the confufion and diforder of his own mind, and how much his feelings were ilruggling with his duty. Had Sir Francis been as firm and determined in conducting the attempt, as he was convinced of the neceffity of it, the prifoner might now have been blefling him for his kindnefs, inftead of lamenting his lofs, and blaming his indecifiou. In- fatuated conduct ! unaccountable, but on the fuppolition of a ftruggle between his feelings and his conviction : for what elfe could make him trifle and hefitate, after he had once taken his refolution, but his extreme averfion to incur thi* S family family affront ! But, however fatal that irrefolution was ta him, however cruel to the prifoner, however much I may, as a man, join with the prifoner in deploring the indecifion of his brother, yet, as h\s counfel, I did rejoice to hear it : it proves, beyond the power of cavil or of fophiftrv to ob- viate, with what extreme reluctance Sir Francis yielded to the advice of his friends, and the cpnviclion of his own fenfes : it proves how completely he muft at laft have been, convinced of the neceffity of coercion, before he brought bimfelf to attempt it : it proves that he, apprehended Hill greater difgrace to the family from his brother being at large, than could arife from his confinement : it proves that he did not attempt to fecure him, till he not only faw that the affront was unavoidable, but that cenfure and difgrace would fall on him, if he refifted longer the conviction of his mind : he failed in the attempt ; but the attempt proves his conviGion, and his laft breath bore teilimony to the necef- fity of his cond,uh Gentlemen, were the caufe my pwn, I would leave it here. I can never ill engthen it ; I cannot forefee what anfwer can be made to the evidence arifing from the conviction of the family j if there were no more in the caufe, I mufl prevail ; prevail, by the admiffion of the profecutor himfelf, for the evidence arifing from the conviction of the family, was his own argument^and I have only made the proper application of it. But, Gentlemen, on the part of the prifoner, we have gone a great deal farther ; you have the cleareft proof of the opinion of the family, and you have your notes before you ; I dcfire you to fay, if either there, or in your memo- ries, you can find one circumftance, tending even to a fuf- picion, that the opinion of the family was wrong, that their tneafures were unneceffary,.that the prifoner was not in- fane : I know you cannot ; on the contrary, I could prove to yqu, that every one circumftance, which has appeared in evidence, tends more ftrongly than anotlker to juftify the opinion of the family, and to prove the prifoner's complete infanity, had the conduci of his friends been lefs convincing ?n the fubjecT;. \ C *39 } I will not weary you, Gentlemen, by detailing the evi- Hence, becaufe, I think I fee that you are already with me ; allow me only to recall to your recollection the leading circumitances of the cafe. Firft let me alk y^u, Gentlemen, is there any thing improbable in the allegation that the prifoner was infane ? Was he an unlikely perfon to be in- lane ? Or was he not iuft fiich a man, as, to ufe his father's prophecy of him, would one day be confined ; had not in- ianity become in him an habitual difeafe ? Was not his iyftem. predifpcfed, 1 think they call it, to this diforder ? Had it not a moft adequate and melancholy caufe ? Will it be faid that -a Weft India fever does not often l&ave behind it occafional derangement? Will it be faid, that it did not do fo in the prefent iaftance ? Look back upon the evidence of his brcther-foldicrs, who firft difcerned the effects of the difeafe ; a body of evidence, which I was not at all furprized to hear the learned Lord defire you to lay out of view. Mark the pfogrefs of the diforder ; has it not been proved, that his family arid friends thought it growing on him ? 3D id it not once before end in confinement ? and is it fo ex- traordinary that it mould end in. it again ? Is it not natural, riay, is it not proved to you, that repeated attacks of infani- ty weaken and unhinge the mind ? Is it not known, that the mind in that ftate preys upon itfelf, and that every at- tack of the diforder is in itfelf, in fome degree, a caufe of its return ? Are you furprifed to find infanity, even with- out a caufe, in one who had been occafionally fubjecl: to it? Are you furprifed to find a total infanity, in one who had been often partially deranged ? But has not the caufe of the prefent attack been proved 9 or, at Icaft, has it not been traced back to a flrdke which hid iuind had very lately re- ceived ? Within lefa than two months of the accident he had loft his father ; it is proved that he loved him with the moft filial piety ; it is proved that he paid him iJncom- iuon attention during his lail illnefs ; it ii proved that he was extremely a{f..cT:ed by his death. Were it necciT-iry, I might argue that this is no trifling ingredient in this caufe j a man who has mown fuch w;irin;h of aftl-clion tor an aged parent, at a time when thofe inftin&s are fnppofed to be much effaced, is not the man, whom, in two -ilidrt months, you would expect to find the vviltul murderer of his bro- ther. I have no occafion, however, for an argument iii'e this, this, and therefore {hall not dwell upon it; but it is proved that he was uncommonly affefted by his father's death i Gentlemen, we have all fuffered the lofs of dear relations j I hope we too have felt all that nature ought to feel. But, we met thofe afflictions with found minds and vigorous underftandings ; we were capable of receiving the confola- tions of bufinefs, of philofophy, and of religion, and of al- lowing them all their proper force ; we gradually refumed our relifh for friendfhip and fociety, and were comforted : but can any of us pretend to fay, what effects fuch afflictions might have had upon us, if we had met them with a mind, weakened, unhinged, and fhattered by previous calamity ? had infanity been lurking in our fyftem, can we fay, that fuch affliction might not have called it into a&ion ? That it did fo with the prifoner, is proved beyond a doubt : It produced, at firfl, as was moil natural, uncommon depreflion of fpirits, not mere ordinary grief, but what the profecutor himfelf admitted, did amount to real, but partial derange* ment ; this was followed by an uncommon agitation of the nervous fyftem, not arifing from intoxication (as it feemed once attempted to be proved, though it has been fince aban- doned,) but from the progrefs of his diftemper j this was accompanied with a reftlefsnefs, an incapacity to remain any time in one place, and a defire to wander and hurry about, which would of courfe increafe the agitation and ir- ritability of the fyftem, till, by a complication of caufes, it ended in the delirium and infanity which is our prefent de- fence. Is there any thing unnatural in this? Does the ef- fect not correfpond with the caufe ? Is not the diforder juft what you would have expected, from a mind fo previoufly unhinged? Were not the confcqutnces juft what you would have expefted from a mind fo totally deranged ? His friends ^nd family thought him dangerous both to himfelf and others ; had the mifchief happened to himfelf, as it is too plain he intended, who would have been (urprifed ? But is it lefs fur- prifing that it fhould happen to another ? Both were equally dreaded by his family ; elfe why bolt their doors, and why fo much preparation of affiflance when it was refolved to teize him ? The friends apprehended danger from his infa- nity, and when the danger happens, which they dreaded, it is given you as evidence that their fears were vain ; amaz- ing conclusion ! That the very circumilance, which, if there were were any doubt of his infinity, is of itfelf almoft enough to> prove it, mould be confidered as throwing doubt and per- plexity on a cafe, in which every foul concerned has told you that they had none ; every witnefs who faw him re- cently before have told you, that they dreaded mifchief from his infanity ; the mifchief happens, and then the infanity is denied ! I think, then, Gentlemen, I have mown, that the opinion of his family is completely corroborated by the probabili- ties of the cafe ; and that both the diforder itfelf, and the fa- tal effects of it, are exactly fuch as were to be expected from the previous habits and fituation of the prifoner's mind, unhinged by difeafe, mattered by repeated attacks of derangement, and at laft mocked by a grievous and recent affliftion. Let us now enquire, Gentlemen, if the ftate of his body, if his actions and his conduct corrcfpond with the opinion which his family had formed. On the fubject: of the ftate of his body, fome queftioiis were put at an early period of this caufe, by two gentle- men of the jury, who from thole queftions I perceived were gentlemen of the proieffion. I am not myfelf quali- fied to judge, whether the circumilances they alluded to are or arc not proper and decilive fymptoms of derangement. But I conclude that they are good judges ; and I defire you only to judge of the prifoner's condition by the queftions which they put. One of them put this queftion to Mr Somner, If want of fleep, and an uncommon capacity to refill the calls of hunger and the impreffions of cold, were not ufual and decided fymptoms of infanity ? Mr Somner told you, that his experience of the difeaie did not enable him to give a decided anfwer. Still lefs does mine, although I certainly have heard, that thole are ufual and ftrpng marks of madnefs. I prcfume at leaft that the gentleman thought fo, who put the queftion. Let us now then examine his fituation, with a view to this queftion, and fee what anfwer it fuggefts. As As to want of fleep, it is proved beyond all controveriyj that this was his conftant Complaint. Mifs Kinloch has proved, that on Sunday he was wandering the whole night up and down the houfe of Gilmerton, from room to room, and toiling himfelf on every bed. When his brother and M'Millan faw him at Haddington on Monday, at the time when Somner brought him to the inn, it is proved, that when his brother alked him how he did, he ar.fwered, **Ohj ' Sandie, I am very ill, I cannot fleep." It is proved, thac late on Monday evening, he made his efcape from them; as they were carrying him to Gilmerton ; and it is alfq clear that he had wandered in the woods all that night; It is therefore eftablifhed, that, for two nights at lead previous to the accident, he had not clofed his eyes, befides the coiijiant complaint of want of fleep, to which he hsd'been previouf- ly fubjtft. Walker at Beaiifton, indeed, feems to think that he flept fome hours while in his houfe ; I think"this extremely doubtful, from the condition in which Walker found both the pfifoner and his room, 4 when he went up to waken him. But let it be held that he flept at Walker's, I will yield that to the profecutor ; but ftill it is proved, that want of fleep was his conftant complaint. It was pro- bably both the caufe and the effecT: of his difeafe ; and, if he did fleep at Beanfton, and yet, awoke in the outrageous itate which Walker and Reid have defcribed, it only proves more llrongly the fettled and ferious nature of his malady,- which gained ground, notwichftanding a comfortable fleep, the moft likely and effectual means of producing an abate- ment. Whethcf, therefore, he flept or not, is indifferent to me ; if he flept, and yet awoke more deranged and outra- geous than ever, the more violent and decided mult be his infanity. If he did not fleep, then it accounts for the de- gree and progref-j of the diieafe. liut for me it is enough to (hew, that want of fleep was his conftant complaint, and that, in fat, he had not clofed his eyes on Sunday and Mon- day night. Follow him to Gilmerton, and you will find the fame complaint. When Sir Francis had teen him to his room, and -alked him how he did, he anfwered him by complaining that he could not fleep nor reft ; and, in point of fa&, you find that he was fpending that night in the fame reftlefs-and agitated ftste as the two preceding, for, at three ( 143 ) Ifhree in the morning, when the accident happened, he ha,1 not clcfed his eyes, and was wandering through the houfe, If then, Gentlemen, want of fleep be a fyrhptom of infanity, as I do believe it to be, both from my own information, and from the qneftion put by one of vourfelves, I think it is proved in this cafe to no ordinary degree. But I alfp believe that want of fleep is not only a fymptom of infani- ty, but contributes powerfully to tre progrefs and violence of thedifeafe ; in which cafe, this circumitance acquires ad- ditional importance, and fully accounts for the diforder having made fuch rapid progrefs in fo fhort a time. Now, as to his refitting the calls of hunger, we could have brought complete evidence on this fubjecl, if our fatigue had admitted of it ; for, we have every perfon in waiting in whofe houfe he had been for at lead a week be- fore. But enough is proved, to eftablifh that one of his fymptoms was a total want of appetite. Dr Home and Dr Farquharfon have proved, that a total want of appetite was one of his complaints fome time before he left Edin- burgh ; and, to come nearer the fatal event, I think you have every reafon to believe, that he had not tafled food for at leaft 48 hours preceding. Mr Goldie has proved to you, that he arrived at his houfe from Dunbar about half pafl three on Sunday ; confequently his laft meal that day, mail have been his breakfaft at Dunbar. He refufed* to eat at Mr Goldie's ; and, though he aiked for a little toddy, that witnefs has told you that he was unable to carry it to his head. He remained with Mr Goldie near two hours j and, before he arrived at Qilmerton, it is proved that dinner was over, that he refufed to eat, and in faSt he took no- thing but a little brandy and water that night. On Monday morning it is clear that, inilead of food, he had taken poifon, to counteract which, he was made to drink fevrral gallons of hot water, a circumftance which would add to the .debility of his lyftem. He left Gilmerton on Monday about two; and, after going halt way to Edinburgh, lie returned to Had- dington, where Somner brought him to his brother and M'Milkn, and there it is proved that he could not eat, although preffed to do it ; at night he made his efcapefrom the chaife, and, after wandering in the 'woods all night, arrived arrived at Walker's at Beanfton about five in the morning ; and Walker has proved that he had nothing there but (awcer full of tea ; fome toafled bread was brought, but he could not eat it ; from that he went home to Giltnerton, when it is proved, that though he once afked for meat, he could not eat it when it was brought. If, then, a want of appetite for food, be another fymptom of infanity, in what ftronger degree would you wifli it to be proved ? Patience of cold is flated as another fymptqm ; do you defire evidence of that ? See him wandering all night through the houfe of Gihnerton almoft naked ; and, if that will not fatisfy you, follow him to the woods of Beanfton, and there view him, " ftretched out and bleaching in the northern blaft." Let, then, the Gentleman of the Jury who put that quef. tion receive his anfwer, that patience of hunger, cold and flecp, are fymptoms of infanity, and that they concurred in the prifoner to no ordinary degree. So far then, I fay, that t? ^ opinion and impreffion of the family is again confirmed b} the (late of the natural func- tions and appetites of the body, as well as the tenor of his mind. i Now, look to his actions and his conduct, to his demea- nour and whole behaviour, from which every profeffional man has told you that infanity is mod eafily perceived. But alas ! Gentlemen, all thefe circumflanccs, which made fuch impreffion on the witneffes, are loft upon us. DC- fcription fails us here ; language cannot defcribe looks, and geftures and demeanour j there is indeed a language of the eye, but it can be exprefied only by the eye, and, when that is not feen, the impreffion cannot be conveyed. You have indeed been told of the wildnefs of his looks ; but you cannot conceive this by defcription, nor can you tmderftand the degree of wildnefs, otherwife than by its effect* on thofe who ( '45 ) who faw it, tley believed him, from his looks, to be totally deranged, and you muft believe them- As to his geftures and demeanour, turn to the .evidence of Frafer, of Walker, of Rdd, and Somner. I will not follow them minutely. But you cannot have forgot Frafer's def- cxiption of his loading the blunderbufs on Monday forenoon. But furely the loading of a blunderbufs or piftols, by a perfon juft flepping into his chaife for a journey, is in. itfelf neither an uncommon nor a terrific occurrence ; and yet Frafer told you he was in the greateft alarm, and ex- pecled every moment to fee the blunderbufs levelled at him- felf. What alarmed him, I fay ? Not the mere loading of the blunderbufs. But he had marked his mad demean- our. It was his eye, his looks and geftures, the terrible agitation of his whole frame, which was foon . afterwards obfcrved by Somner, even when the prifoner was half concealed by his chaife. All thefe things gave both thefe gentlemen the moft decided convi&ion of his infanity; and their opinion ought to carry ccnvi&ion to you, for it is their opinion in this cafe to which you ought to give weight, and not to their defcription, which can give no adequate idea of his condition and behaviour. Recollect alfo the numberlefs circumftances to which Somner has fworn. Begin with the fcene at Haddington ; view the prifoner wandering from the room to the yard, from the yard to the g'arden, from the garden to the ftreet, from the ftreet back to the room, in fuch a, manner and fuch a condition, that you fee it was thought necefldry to give the oftler orders to watch him. Sep him next on his road to Gilmerton, whither his friends were carrying him for the beft of purpofes, making' his efcape from the chaife in the middle of a dark and dreary night. From what and; to what did he efcape ? He efcaped from his bell friends, from thofe who meant his good, from his only means of cure, to wander in the woods of B.eaufton, and dwell withi the beafts of the field. And yet this is the know- ledge of good and evil, of friend and foe, which you are defired to believe, although I obferved that the profecutor never once ventured to put thofe queftions, after the remark; which I made upon them during the examination of Mr jSomncr, T But ( '46 } But let me proceed with the depcfition of that gentleman. Follow him on the fatal night, and you will find his ac- count of the prifoner's behaviour pregnant with innumer- able proofs' pf the mofl decided infamty. His perpetual reflltfTnefs, his incoherent converfation, his th teats to ihcoc Somner at the head of the flairs, his affection for Sir Fran- cis at one moment, his fufpicion that he had poifoned him the next, his wandering through the houfe half naked, and lailly his frantic and outrageous geftures, when he came down to the parlour firft, when the final resolution was taken to fecure him, and again at the time cf the infatuat- ed and inefjxdual attempt. If thefe circumftances in his conduct are not thought fuf- ficient to fupport the opinion attempt and of the family, turn to the evidence pf Walker and of Reid, and you will find abundant confirmation $ I will not repeat what they have told you ; they were among the laft witneffes, and I faw the ftrong impre0jon which their evidence made on the whole Court: one circumftance only I will mention, the vifion of the light from Heaven and the burnjng bufh ; shfions fuch as this, are the conftant efftfts of a disordered imagination, and the horrors of them never fail to increafc the infanity by which they are produced. I leave the reft of Walker and Reid's eyiden.ce to your own recollection ; I am fare it made a fufficient impreffion on you, and I think I may venture to fay, that not one of you would have changed places with them, to, be Loid of the Britifh Empire. But, Gentlemen, extend your views beyond the fatal event, and you will find that the impreffion of the family continued exactly the fame ; What was their firft inflinc- tiye movement ? Was it tP apprehend a felon ? No ; It was to feize, overpower, and fecure a madman , it was to carry into execution the attempt which Sir Francis had fo egregioufly mifmanaged, in fhort it was to apply the ftrait waiftcoat, and thus, in the ftrongefl manner, eftablilhed the opinion of the family on the nature of the deed. From his behaviour, however, after the accident, the learned Lord has drawn the only thing like an argument in iupport ( 147 ) fupport of the profecutJcn ; he argued, that he could not bf infane, hecaufe, after the event, he recollected what he had done ; but, Gentlemen, that by no means difproves his in- fanity. The moft complete infanity is not attended with a total lofs of memory ; elfe how could madmen remember their keeper, and thofe circumflances which make thern ftand in awe of him. Nay, in fome points, the memory of madmen is moil perfect and tenacious ; they never forget an injury, they never forget their revenge ; but, Gentlemen, the recollection which the prifoner fhovved of the fatal event, muft be taken altogether, and then the argument founded on it falls inftantly to the ground. How did he recollect the event? Did he recollect it as it really happened ? Did he recollect it unconnected with thofe frantic notions which, he had previoufly conceived ? What did he fay to the fervants \vho feized him ? he called out to them to let him alone, for he had not an houf to live : Does not this prove that he was ftill under the impreffion, that his brother had poifoned him ? Re- member too, what he faid to Mr Goldie, That he had been poifoned, and that there was a deliberate plot to murder hita that night, and that what he did was in felf-defence. And yet this is the recollection from which the learned Lord would infer the foundnefs of his underftanding. Dr Monro, however, who knows a little more of infanity than, either of us, gave you his opinion, that fuch groundlefs jea- loufies and fufpicions againft friendaand relations, was a con- ftant and certain mark of perfect madnefs. What the prifoner therefore faid of the event, muft be confidered more as the creation of a difordered imagination, than the impreffion of a found and fane memory. Bur, fays the learned Lord, we find him perfectly recollected a few days afterwards in Haddington jail ; and he feerhed to treat fo rapid a recovery as impoffible. But, ftrft, I deny that he wus perfectly recollected. He may have been f > at times ; but Dr Farqnharfon has exprcfsly told you that he found him often very incoherent ; As to his ra- pid and perfect recovery, 1 wonder in what part of the proof the learned Lord found that; Dr Mom ;, and Mr Bel), indeed, who vifited him only lor a few minutes once or twice a- week, did r.ot obferve infinity ; but they moft candidly and foientifically told you, that this could a fibril no proof that he mi^ht not be often incoherent at other times; accordingly Dis Hume and Farquharfon, who fa\v him him daily, fometimes twice or thrice, have t"old you that he* continued to be frequently deranged ; nay, did not he once behave in fo outrageous a manner as to determine Major Mackay never to return to fee him ? did not he fay fo to Dr Home, as they went down the flairs of the prifon ? and did not the IXoclor anfwer, that it would be abfolutely ne- ceflary to apply the ilrait waiflcoat, if he continued equally outrageous ? What, therefore, could the learned Lord mean by a rapid recovery ? That, in fome fhort time, he grew comparatively better ; that now, at the diftance of two months, he is, thank God, as well as his grief and forrow, and anxiety, will permit him, is true ; But that his recovery was fo rapid and extraordinary as to throw doubts even on. the exiftence of his diforder, I am fure that no man who hears me will believe. But the learned Lord, in this, fell into a manifefl incon- fiftency ; he has now argued that he could not be very much deranged at the fatal moment, becaufe he became fo foon well ; but the learned Lord was pleafed, in another part of his fpeech, to make a much more rapid recovery for the prifoner, than that which he has treated as impoffible. He feemed very candidly to admit, that his behaviour at Wal- ker's at Beanfton was fuch, that, if he had committed mif- chief on him, it could not have been murder, on account of his infanity. This was about fix o'clock in the afternoon ; and yet, by three nest morning, that is in nine hours, he fuppofes fuch a rapid recovery as to make that murder then, which would have been madnefs at Beanfton. This is a cure infinitely more wonderful, than the prifoner *s recovery ! I will not, Gentlemen, dwell a inftant on the cafe of Lord Ferrers -It agrees in no point with this, but that the word madnefs occurs in both ; Lord Ferrers did not fail in proving that he had been occafionalty deranged, but he fail- ed totally in proving that he was deranged at the time, or rather it was clearly proved that he was in his perfect fenfes ; but we have not only proi'ed previous derangement to no flight degree, but a derangement at the time, gradually increafing till it ended in a crifis of delirium ; Lord Ferrers was proved to have afted from the mnft determined re- venge, and to huve laid his fchenus m the moft deliberate manner - t manner; while, previous malice in the prifoner here, thoug?t once atfempted to be proved, is now exprefsly given up ; and, as for deliberation, it is abfurd to talk of it. In fhort, while juftice and law exift, the cafes of Lord Ferrers and of the prifoner will ever be regarded as in exact oppofition and contradiction to each other. I think I am now, Gentlemen, drawing to a conclufion, I think I have marked the great and leading features oi this cafe, to which it is proper for you to direct your at- tention ; many things I have no doubt omitted ; fome in- deed I have omitted by defign, for I wifhed not to diftrac^ your attention from the leading circumilances of the cafe ; and, relying on the goodnefs of my caufe, I wilh you to retire, before you are completely exhaufted ; for, the found- er your judgment, the more certain my fuccefs. I am in- deed confident. It is not ufual for a counfel to deliver his own opinion, nor perhaps is he entitled. But the example has been fet me, and perhaps even my opinion may carry fome weight and authority along with it ; perhaps alfo I owe it in juftice to the prifoner, for having once liftened to the calumnies againft him ; with trath then and pleafure I cari fay, that the very firii day's enquiry which I made into his cafe, effaced the prejudices J had conceived. My opinion has every day grown ftronger in his favour ; and now, lay-i ing my hand upon my heart, and as I hope for mercy at the throne of heaven, I can fay, that, in my conference, I believe him innocent. ( *#) ' LORD JCSTICE CLERK'S CHARGE td the JURY. Gentlemen of tie Jury> That Sir Francis Kinloch was killed fcy the hand of the pannel, is proved beyond a doubt ; you have therefore to confider the defence on his part fet up. Now, it will oc- cur to any man of found fenfe and judgment, that there are different degrees of infanity. If a man is totally and permanently mad, that man can- not be guilty of a crime ; he is not amenable to the laws of his country. There is no room for placing the pannel in that predicament; for, as a perfon, totally and abfolutely mad, is not an object of punifhment, fo neithef is he of trial. The neit infanity that is mentioned in our law books, is one that is total but temporary. When fuch a man com- mits a crime, he is liable to trial ; but, when he pleads infa- niry, it will be incumbent on him to prove that the deed wag committed at a time When he was actually infane. There is ftill another fort of diftemper of mind, a partial infanity, which only relates to particular fubjects or notions ; fuch a perfon will talk and act like a madman upon theie matters ; but /till if he has as much reafon as enable;? him to diflinguifh between right and wrong, hr mult fuffer that punifhment, which the law inflict? on the crime he has committed. You have tfercfore to confider the fituation of the pannel, whether his infanity is of this lafl kind, or whether he was, at the time he committed the crime, total- ly bereaved of reafon. For, if it is your opinion from the evidence, that he was capable of knowing that murder was a crime, in that cafe you have to find him guilty. Gentlemen, this is a queftion of fome nicety. You have the teftimony of certain witneffes, that he was correct and coherent in his anfwers ; and you have, on the other hand, evidence that he was totally deranged by a fever in the Weft Indies. In regard to a later period, the conduct of the family with refpect to him, is alfo to be confidered. It It has been pbferved for the profecutor, that no ftepa were taken to fecure him, till juft before the accident happened, whence it is attempted to be inforced, that the family thought his diforder only a fort of melan- choly, and not a derangement of fuch degree as required confinement. I muft fay, that if this event had taken place eight days fopner than it did, this circumftance would have come with very great force againft the pannel ; but, in the a&ual circumftances of the cafe, it comes with more farce in his favour, and is a confideration of weight upon his fide. For, it is proved that a nurfe had actually been provided to take pare of him, and a ftrait waiftcoat prepa- red to put on him j and pity it is that this plan was not timeoufly put in execution. Gentlemen, I ihall not take up more of your time. You will confider the evidence well, and decide according to your confciences. If you, are convinced that he knew right from wrong, you will return a verdi& of guilty. On the other hand, if it (hall appear to you that he was not able to diftinguifli between moral good and evil, you arc bound to acquit him. But Gentlemen, I think that, in all events, a verdicl: of not guilty, is not the proper verdicl for you to return. I think you ought to return a fpecial verdil, finding that the pannel was guilty of taking the life of his brother, but finding alfo that he was infane a the time. (15* ) It was upon Tuefday morning t.bout feveri o'clock wher* the Lord Juftice Clerk concluded his fpeeald Gordon Kinloch, pantiel, whereby the oilize, all in one voice, find it proven that the pannel kill- ed the cleceafed Sir Francis Kinloch of Gilmerton Ba- his brother-gennan, in the way and manner above men- tioned in the injicunent ; but find it proven, that, at that time, the pannel was in fane and deprived of his reafon: The f .U Lords, in refpett of the 'faid verdift, Find, that the faid Sir Archibald Gordon Kinloch, is not an cbjeft of punifhment, snd therefore afloilize him Jimplicitor: But, in refpefl of the inianity and deprivation of reafon found proven, the laid Lords decern and adjudge the faid Sir Archibald Gordon Kinloch, to be carried from the bar, back to the tolbooth of Edinburgh, therein to be detained and confined prifoner during all the days of his life ; or at leaft, ay and until he is delivered to any friend or Qther perlbn finding caution in manner aftermeritioned : and the laid Lords grant warrant to, and ordain the Magiftrale of Edinburgh, and keepers of their tolbooth, to deliver over the perfon of the faid Sir Archibald Gordon Kinloch, to fuch friend or other perfon v/ho (hall find i'ufficieiit caution and furety a Sled in the books of adjournal, to the fatistac- tion of this Ceuit, to ff it!t and confine him in lure and fafe cufcody, dtrring ell the days of his life, and that under the penalty of L. 10,000 Sterling, ; and, in the meantime, ordain the Magi lira tcs of Edinburgh, and keepers of their tolbooth, to receive and detain him prifoner, in terms of, and agreeable to the above fentence, as they ihall be an- fwerable on their liigliett peril. ROBERT M'QjJBEw, J. P. D. This judgement having been fubfcribed, and read, the prifoner retired irom the bar. CERTIFICATE OF CAUTION being founi in terms of tne Judgement. I ROBEF-T M'QuEjEtf of Braxfield, Lord Juftice Clerk, hereby ( '58 ) hereby certify, That Doftor William Farquharfon, one of the Members of the Royal College of Surgeons in the city of Edinburgh, has found fufficient caution and fure- ty, afted in the Books of Adjournal of the High Court of judiciary, That he {hall fecure and confine Sir Archi- bald Gordon-Kinloch of Gilmerton, now prifoner in the tolbooth of 'Edinburgh, in fure and fafe cuftody, during all the days of his life, in terms of, and conform to the fentence of the faid Court in all pointy, pronounced a- gainft him upon the I5th day of July current. Witnefs iny hand, this i7th day of July 1795. ROBERT M'QUEEN. In confequence of this certificate, Sir Archibald was removed from prifon on Friday the I7th of July 1795. LIST ( 159 LIST of the WITNESSES cited on both Sides, of luhsm only thofe marked thus "* were examined. WITNESSES for the GROWN, of ivkom thofe marked thus f ivere likeuuife cittd far the panncl. i. Alexander Kinlooti, Efq; fon of the deceafed Sir Da- vid Kinloch of Gilmerton, Barcnet.f "z. Waiter Gibfon fervant to the faid Alexander Kin- loch.f #3. Alexander Menie, fometime butler to the deceafed Sir Francis Kinloch of Gilmerton, now refiding in Edinburgh, f *4. George Douglas, fervant to Mits Kinloch, daughter of the deceafed Sir David Kinloch of Gilmerton, Baronet. f #5. Alexander Campbell, lately poftillion at Gilmerton, now fervant to James Drummond, Efq; of Perth."!' *6. William Reid Gardner at Gilmerton.f 7. William Temple chaife-driver in Haddington.j* *8. Dr Alexander JNlonro Phyfician in Edingurgh.f 9. Dr Francis Home phyfician in Edinburgh.f *ro. Dr James Home pbyiician in Edinburgh/!" *i i. Mr Benjamin B^U furgeon in Edinburgh.f *I2. Dr William Farquharfon furgeon in Edinbtirgh.f ^'13. Mr George Somner furgeon in Haddington"]*. *14. Alexander Frafer ShcrifF-clerk to the county or Haddington.j- *I5. Hugh Dods clerk to the faid Alexander Frafer. *i6. Duncan M'Milian writer in Edinburgh."}- *i7 Mr Charles Hay advocate. *iB The Rev. Mr George G oldie minifter of the Gofpel at AtHelrtoneforcL j- ^19. John Walker tenant in Beanfton.f 20. James Ck-rk, Efq; Sheriff- depute of the County f 160 ) S3. William Scott Procurator-fifcal of the County of Edin- burgh. 23. William Stephens Sheriff-officer in Edinburgh. 24. William Dumbreck hotel keeper, in St. Andrew's Square, Edinburgh, f 25. William Graham waiter to the faid William Dum- breck.f 2,6. Charles Manderfon poftilion to the faid William Dumbreck. -j- 27. James Robertibn keeper of the Black ull Inn, Edin- burgh. 28. Patrick Lee vintner in Edinburgh.')- 29. Alexander Murker waiter to the laid Patrick Lee f 30. Mr Alexander Hiilop Provoft of Haddington. 31. Mr Thomas Fairbairn SheniF-fubititute of the Shire of Haddington.j* *32. Hay Smith writer in Haddington. 33. James Stormonth writer in Edinburgh/}" 34. Patrick or Peter Dickfon, ibmetime coachman to 1 " the late Sir David Kinloch of Gilmerton, Baronet.f 35. Margaret Muir reiidenter in Iladdington.f 36. James Robertfon keeper of Edinburgh Jail. 37. Alexander Goodwin inner-keeper of faid Jail. 38. James Laing, jun. writer in Edinburgh. 39. Mr Richard Somner furgeon in Haddington. WITNESSES cited for the Pannel only. *i. Mifs Janet Kinloch, daughter of the deceafed Sir David Kinloch. *a. Lieutenant Colonel Samuel Twentyman. *3. Captain Henry Miller of the Staffordihire Militia. *4. Major John Mackay. 5. Mr Francis Anderibn writer to the Signet. 6. Mr Alexander Low tenant at Woodend. 7 John Reid matter of old Slaughters coffce-houfe, St. Matin's -Lane, London. 8. John S. John Parfons hairdrefler, No. 8. Little Suflblfe Street London. 9. Margaret Cux'tis widow of Michael Curtis occafion- ally fervant tD the pannel. 10. William Urquhart perfumer and hairdrcffcr, No. 4. Pan ton Street, Haymarket London. 11. Mrs Margaret Hay his mother in law. 12. Alexander Urquhart green grocer London. 13. John Johnfton grieve at Gilmerton. 14. Jane Logic chamber maid at walkers hotel, Prince's Street Edinburgh. 15. Robert Dickibn poftilion to Mrs Fairbairn at Had- dington. 16. Henry Gibfon vaiter to Mr Lorimer Dunbar. 17. William Turnball poftilion to MrFraferat Dunbar. 1 8. Elizabeth MacDougal hen wife at Gilmerton. 19. William Sandie driver of the Haddington coach. 30. Thomas Temph, hoftler to Mrs Fairbairn Had- dington. a i. William Moffat Forrefter at Gilmerton. 22. David Hunter labourer at Gilmerton. 33. Alexander Fergnion labourer there. 24. Francis Buchan Bright North Berwick.. And 25. The Reverend Dr. David Johniton minifter of the gofpel at Nortu Leith. FINIS. 000018295 i