Dundas, Robert

, of Arniston, lord-president of the court of session, was the second son of Robert Dundas, esq. an eminent Scotch lawyer, and was born Dec. 9, 1685. Though in no period of his life distinguished for laborious application to study, he had in his earlier years improved his mind by an acquaintance with general literature; and he gained by practice, aided by uncommon acuteness of talents, a profound knowledge of the law. He had been but eight years at the bar, when his reputation pointed him out as the fittest person to hold the office of solicitor general, to which he was appointed by king George I. in 1717, and which was preparatory to that of lord advocate for Scotland, to which he was appointed in 1720. In 1722 he was elected member of parliament for the county of Edinburgh; and in that situation, he distinguished himself by a most vigilant attention to all public measures, in which the welfare of his country was concerned, and by a steady and patriotic regard for its interests. On the change of ministry, which took place in 1725, when sir Robert Walpole and the Argyle party came into power, Mr. Dundas was removed from his office of king’s advocate, and resumed his station without the bar, distinguished only by the honourable title of dean of the faculty of advocates, till he was raised to the bench, in 1737. For nine years he filled the seat of an ordinary judge of the court of session, by the title of lord Arniston, till 1748, when, on the death of Mr. Duncan Forbes, of Culloden, he was appointed to succeed him in the honourable and important office of president of the court.

While a barrister, he shone equally as a powerful pleader and an ingenious reasoner. To the quickest apprehension he joined an uncommon solidity of judgment; and embracing in his mind all the possible arguments which were applicable to his cause, he could even in his unpremeditated pleadings discover at once and instantly attach himself to some strong principle of law on which he built the whole of his reasoning. His eloquence, though as various as the nature of the case required, was constantly subservient to his judgment; and though master of all the powers of expression, he rarely indulged himself in what | is properly termed declamation. A fine specimen of his argumentative powers is to be found in his defence of Carnegie of Finhaven. This gentleman was in 1728, tried before the court of justiciary in Scotland, for the murder of Charles earl of Strathmore. At a meeting in the country, where the company had drank to intoxication, Carnegie, having received the most abusive language from Lyon of Bridgeton, drew his sword, and staggering forward to make a pass at this Lyon, killed the earl of Strathmore, a person for whom he had the highest regard and esteem, and who unfortunately came between him and his antagonist, apparently in the view of separating them. In this memorable trial, Mr. Dundas had not only the merit of saving the life of the prisoner, but of establishing a point of the utmost consequence to the security of life and liberty, the power of a jury, which at that time was questioned in Scotland, of returning a general verdict on the guilt or innocence of the person accused.

In Scotland, though general verdicts appear to have been authorised by the most ancient practice of the criminal court, it had long been customary to consider jurymen as tied down to determine simply, whether the facts in the indictment were proved or not proved. This change from the ancient practice is supposed, with much reason, to have been introduced in the latter part of the reign of Charles II. at a time when we find the king’s advocate (Mackenzie) strenuously contending in his “System of Criminal Law,” for the entire abolition of juries. The latter was too strong a measure, and would have been found of difficult accomplishment; the former was of easier attainment, and answered nearly the same end. The accused person, to satisfy appearances, and for the show of justice, was still to be tried by his peers; but his guilt or innocence was rarely within their cognizance; that was decided by the laws, or by their interpreters, the judges; and the jury, tied down to determine solely on the proof of facts, was compelled to surrender into the hands of these judges, and thus often to sacrifice the life of a fellow citizen, though convinced of his innocence, and earnestly desirous of his acquittal. Thus matters stood till the trial of Carnegie, who, had the powers of a Scotch jury remained thus circumscribed, must have suffered the punishment due to the foulest malefactor; the court had found the facts in the indictment “relevant to infer the pains of law” and the | proof of these facts was as clear as noon-day. There remained no hope for the prisoner, unless the jury should be roused to assert a right which they had long relinquished, and vindicate the privilege of deciding on the guilt or innocence of the accused; and this great point was gained by the powerful eloquence of the prisoner’s counsel. The jury found the prisoner not guilty; and from that time, the right of a Scotch jury to return a general verdict, is acknowledged to be of the very essence of that institution.

As a judge, lord Arniston distinguished himself no less by the vigour of his talents, and his knowledge of the laws, than by his strict principles of honour and inflexible integrity. His own idea of the character, both of a lawyer and of a judge, remains, penned by himself, in that admirable euiogiuin on lord Newhall, which stands upon the records of the faculty of advocates; and many of those various talents and accomplishments which he there applied to another, were in a peculiar manner his own. Although he inherited neither the ample stores of various knowledge, nor the enlarged and philosophic mind of his predecessor Forbes, yet he possessed a sound and discriminating judgment, and the manner in which he filled the high offices of the law in times of much difficulty, from the prevalence of party spirit, reflects great honour on his moderation and humanity. This eminent lawyer, after a life devoted to the public good, died August 26, 1753, leaving by his first wife, Elizabeth, the daughter of Robert Watson, esq. of Muirhouse, a son, Robert, the subject of our next article, and by his second wife Anne, the daughter of sir Robert Gordon of Invergordon, bart. five sons and a daughter, one of the sons, the late Henry Dundas, viscount Melville.1


Transactions of the Royal Society of Edinburgh, by lord Woodhouselee, vol. II.—His lordship’s Life of lord Kames.—Sir E. Brydges’s edition of Collins’s Peerage.