has been the usage? By not exacting what they are entitled to demand the magistrates may lose the right to tax which they once possessed. On the other hand, by acquiescing in increased, and what was at the first unlawful taxation, the inhabitants of the burgh may in course of time be deprived of any right to object. It is also clear that a custom may cease in consequence of altered circumstances, and that the magistrates are not then entitled at their own hand to substitute for it what they may consider an equivalent. They must in such a case seek their remedy in Parliament.

REMARKABLE CASE OF CONVICTION ON CIRCUMSTANTIAL EVIDENCE IN 1826.

THE recent case of Habron, condemned for the Whalley Grange murder, has brought to remembrance a case in Glasgow upwards of fifty years ago, where a young man was convicted and narrowly escaped the gallows, though afterwards proved to have been perfectly innocent.

It was late in a night in April 1826, during the Spring Circuit or Assizes in Glasgow, that a memorable scene was enacted in the Court-room there. The interior of the building was then in a very different position than that in which it is now. The Judges sat on an elevated bench or apartment between colossal pillars, with the jury-seats on their right. The prisoners' bar was on the front of a large table, beneath and around which sat young counsel, few of whom are now in life. The public sat in an amphitheatre of raised benches. The hall even in mid-day was ill lighted, and at night, with the aid of a few candles placed on the bench and table, it was truly dismal. A lengthy trial had just terminated of a man and a boy for assault and robbery perpetrated on the Old Bridge of Glasgow. The name of the man was James Dollan, an Irishman, that of the boy Robert Syme, a weaver, and a native of Glasgow. The robbery had occurred on Saturday the 12th February previous. The man robbed was one Andrew Jack, a carpenter. The facts appearing in evidence were that Jack had that night been treating his fellow-workmen in a house in the High Street on the occasion of leaving the workshop, and was somewhat under the influence of strong drink. He resided in Tradeston, and was crossing the Old Bridge to the Gorbals on his way home, about twelve o'clock at night. There were few persons then on the bridge, and when he came to the south end he was all at once set on by two or three men, who knocked him down and rifled his pocket of about 10s. or 11s. Jack instantly seized one of the men, and firmly held him until, by his loud cries, several of the night police came from the

Gorbals side of the river, and found a man in his grip, who was the man Dollan. Jack had also seized another of the assailing party by a worsted comforter, which he had around his neck, but this man, to relieve himself, slipped it over his head, and on doing so Jack saw that his hat fell over the bridge into the river. So soon as Dollan was placed into the hands of the police Jack discovered another person standing looking on, and without a hat, and on this fact alone he charged him to the police as being another of the guilty party. The police accordingly took him into custody, and this was the young man Syme. No evidence was offered in defence. So conscious was Syme and his friends of his innocence, and the certainty of acquittal, that, being all very poor, they had employed neither agent nor counsel, and made no effort to adduce evidence in exculpation. A young barrister, Mr. Arthur Connel, volunteered the defence at the moment. This gentleman was grandson of Sir Islay Campbell, President of the Court of Session, and son of Mr. John Connel, Judge Admiral, and nephew of Lord Succoth. He afterwards retired from the Bar and became Professor of Chemistry in the University of St. Andrews. The jury, after retiring for a few minutes, brought in a unanimous verdict of guilty against Dollan, and by a plurality of voices the same against Syme, but with a recommendation to mercy because of his youth. In those days every Circuit in Glasgow left a sad legacy to the gibbet, and the Depute-Advocate, in moving for sentence, stated that considering the prevalence of street robberies during the previous winter, and the daring nature of the offence in this instance, he had some hesitation in restricting the libel to an arbitrary sentence in the case of Syme, but which he was only induced to do from the fact that up to the night in question the lad was wholly unknown to the police, whilst his companion in the bar was an old offender. The presiding Judge then assumed the black hat, and in solemn tones, during which the crowded hall was in breathless silence, he addressed the older prisoner on the duty of improving his numbered hours, and appointed the fatal day for his execution. pointed out to the younger prisoner-who, forming a contrast to the cool demeanour of the older prisoner, seemed to stand in a state of entire stupefaction—the narrow escape he had made from a death punishment, and announced to him the next severest penal award in the Criminal Code-namely, banishment for life. soon as the dread sentence was ended with the ominous words, "And may the Lord have mercy on your soul," the death-condemned criminal, in a clear and dauntless voice, and with a strong Hibernian accent, addressed the Judges in somewhat these words: "My Lords, I acknowledge my guilt, and resign myself to my sentence, but, as a dying man, I now declare that this lad who now stands beside me is wholly innocent of any blame in the crime for which I am to suffer, and I never saw him until that night when we first met together in the police office." This appeal startled all

He

So

who heard it, but the criminals were speedily removed, and the Court adjourned for the night.

The remarkable appeal, however, was not lost on the hearers. In particular, one young procurator, now the senior member of the faculty, felt deeply interested in the case, and resolved to investigate the matter. Several gentlemen also interested themselves, and especially a respected magistrate of the Gorbals, now deceased, Mr. Archibald Edmistone, a wood merchant in Hutchesontown. An array of affidavits, both as to the excellence of the young man's character and his entire innocence of the crime, was got up, from which the following facts were clearly made evident:

The lad Syme, the son of a respectable mason in Glasgow, but who was then dead, was aged eighteen years. He resided with his widowed mother and two sisters in Main Street, Gorbals, above the shop of Dr. Strang, and within a hundred yards of the south end of the bridge. He had served four years' apprenticeship as a weaver to one Robert Whitehill, with whom he resided during that time, and who, with his wife, attested to his good character, and that he had never been absent one day from their house. He subsequently, and at the time in question, was working to one Joseph Hogarth, a weaver, in Centre Street, Tradeston. On the night in question he had been attending a meeting of a friendly society in Glasgow, of which he was a member and treasurer, and had been thus detained later than was his usual time of being home. Before going to bed for the night he sat in conversation at the fireside with his mother and sisters. A cry got up of a scuffle on the street, and cries for the police. With the thoughtlessness and curiosity incident to youth, Syme ran out to the mouth of the close, without thinking it necessary to put on his hat. The affray in the street, which was a drunken squabble between a man and his wife, was speedily allayed, when loud cries of murder and police were heard from the bridge, to which Syme instantly ran, and was first on the spot. The police followed, less swift in foot, and Jack having given up to the police a man he firmly held in grips, he pointed out Syme as another of the gang, and straightway he found himself in the custody of the police, charged with robbery, solely on the fact of his being in the place at that time without a hat. It was established that Jack was very much under the influence of liquor, and after the trial he gave an affidavit to the effect, that he "could not identify Syme as one of the men who robbed him, further than he was the man who was afterwards apprehended on the spot without his hat." Syme's aged mother and two sisters swore to the fact of his leaving the house at the very instant without his hat, and that he neither had on a worsted comforter nor a neckcloth at the time. The two policemen corroborated the facts as to the previous squabble near the place; and, strange to say, one of them, who was not examined in the trial, had seen Syme standing on the street without his hat, and VOL. XXIII. NO. CCLXXI.—JULY 1879.

2 D

followed him to the bridge; and, more than that, he mentioned at the time to the other officer his conviction that he was innocent of the crime charged. With these, and numerous other affidavits and certificates, there was sent a solemn declaration, emitted before witnesses, by Dollan, a few days before he suffered death upon the gibbet, declaring, "As a dying man, and as I have to appear before the judgment-seat of Christ, I never saw Robert Syme until after the police had him in custody, and never spoke to him until I was in the police office in Glasgow, and in the most solemn manner I declare that he was not directly nor indirectly concerned in the robbery of Jack, and is entirely innocent of that crime."

The keeper of the prison (James Watson), the chaplain (James Morison), and a respected elder (Peter Ewing) who was in use to visit the prisoners, all bore the strongest testimony to Syme's good conduct whilst in confinement. The chaplain testified “that he has behaved himself truly well-he is penitent, not on account of the crime for which he is sentenced to transportation, for of that he feels innocent, but humble on account of his very humiliating situation. It is truly a pity," adds the chaplain, "that a young man such as he is should be doomed to suffer such a hard fate for a crime of which there is every reason to think he is not guilty." The petition to his Majesty was accompanied with a strong recommendation from the jury, of which the late Charles Stirling of Cadder was foreman.

Copies of the petition and accompanying documents were sent to the then Justice-Clerk (Boyle), who, moved with the truthfulness of them, at once, most humanely, went himself to the Calton Hill Prison, to which Syme had been removed, and having seen and examined him, he ordered his detention there, whilst the other criminals were removed to the hulks. The case was then thoroughly investigated by the authorities, and the innocence of the man was fully made manifest. He shortly afterwards returned to Glasgow with a free pardon, to thank the friends who had so successfully interested themselves on his behalf. The whole evidence of guilt was his presence at the scene without his hat. This affords another instance of the danger of convicting on any single fact of circumstantial evidence without others strongly corroborative of guilt and exclusive of innocence. The man Dollan was executed in front of the prison on 7th June 1826.

DAMAGES CAUSED BY RABBITS.

"Is there any authority for saying that, if a man chose to put rabbits into a field, and if they came out and ate up the crops of another man, he would have no remedy except to keep an army of ferrets or a regiment of soldiers?" The question was put by

Dowse, B., in the case of Patterson v. The Duke of Leinster, in which the plaintiff had a verdict the other day. In charging the jury, his Lordship is reported to have said, as regards the cause of action for causing the plaintiff's crops to be injured by rabbits: "If a man kept wild rabbits in a preserve no action could be brought against him for any damage they might do once they got out of it, and the only remedy a man had was to kill them when they got out. He was, therefore, against the plaintiff as regards the rabbits, but would take the opinion of the jury upon the question of facts and afterwards frame the verdict according to his view of the law. The plaintiff's case was that the Duke encouraged the growth of wild rabbits and prevented them from being interfered with, that he allowed them to burrow on his preserves, and that these were the rabbits that came out foraging for food upon the plaintiff's lands. Mr. Hamilton (the defendant's agent) admitted that the rabbits were the Duke's, and that he would allow nobody to shoot them. He (Baron Dowse) wanted to ask a question, and he hoped it might receive some sort of attention, not by way of answer, but that it might sink into the minds of people listening to him—in the name of common sense, if the Duke did not own the rabbits, if they were wild beasts that he had no thought or regard for, what business was it of his whether any man shot them or not? If the Duke had no interest in these rabbits, why did he object to have them shot? What was the use of his restriction on the right of the tenants whose crops were to be eaten away in this fashion? You may ferret them; you may keep an expensive animal like a ferret-difficult to rear, expensive to purchase, and that must be looked after by a man connected with the art, and paid at the rate of 2s. a day and all the rabbits he kills— you are at liberty to keep dogs which cannot be kept without a tax of 2s. 6d. apiece, or, if the fatherly legislation at present promised ripens into fruition, a tax of 7s. 6d.; yet the man whose crop is to be eaten by rabbits, though he may keep expensive dogs and ferrets, is not at liberty to trap them or to shoot them. His Lordship could only say, on the case made for the Duke by counsel, that he thought these unwarrantable, illegal, and unjust restrictions on his tenants. All he could say was that if this part of the action had no foundation in point of law, as he thought it hardly had, there were facts and circumstances in it that went a long way to show that Mr. Patterson ought to be compensated for the damage done by the animals. The strange part of the case was that, though according to the contention for the defendant the rabbits were in the plaintiff's own ditch, and belonged to nobody, and were eating his crops, yet he was not at liberty to shoot them. That was an exercise of power on the part of the Duke of Leinster that appeared to him to be totally illegal, and totally unwarrantable. The case for the defendant was that the rabbits were on the plaintiff's own land, belonging to nobody, and eating up his crops, and that he