513. The Trial of ALEXANDER MAC GROWTHER, for High Treason, at the Town-Hall, St. Margaret's-hill, Thursday, July 31: 20 GEORGE II. A. D. 1746. THIS morning the right honourable the lord chief-justice Lee, the right honourable lord chief justice Willes, Mr. justice Wright, Mr. justice Foster, Mr. baron Reynolds, and Mr. baron Clive, came into court, and being seated, the Cryer made proclamation for silence; and the keeper brought James Nicholson, a lieu tenant in the duke of Perth's regiment, and Donald Mac Donald, otherwise David Mac Donald, otherwise Daniel Mac Donald, a captain in Cappock's regiment, to the bar, and they desired to retract their former plea; which the Court having granted, they pleaded guilty, and hoped the Court would recommend them to his majesty's mercy. Alexander Mac Growther was then called, and put to the bar, and for his trial put himself upon God and his country, and after making some exceptions, a jury was sworn to try him. The counsel for the king having opened the indictment, that the prisoner was a lieutenant in the duke of Perth's regiment, they proceeded to call their witnesses, and Mr. Allen was called and sworn accordingly. Solicitor General. Pray, Sir, acquaint the Court of all that you know of the prisoner. Mr. Allen. There are two Mac Growthers, but this is the oldest, and he was a lieutenant in the duke of Perth's regiment; and the first time he was in arms in the Pretender's service was the latter end of last August. He was a tenant to the duke of Perth, and accepted a commission in the rebel service; he was called lieutenant in Perth's regiment by the officers and soldiers, and marched in his highland dress with the rebels from their first beating up for volunteers in Scotland. He was at Edinburgh, and seemed very glad when the Pretender had got possession of the city, and encouraged the soldiers to be diligent, for that there was no fear of success, and if they were hearty, vigilant and active, he did not doubt but they should succeed. He wore a white cockade at Edinburgh, a dirk by his side, had pistols in his girdle, and a blue bonnet, and the highland rebels paid a great respect to him. He was at Perth when possession was taken of that town by the Pretender's party, and always acted there as an officer; and at every place where the rebels came was very warm in their cause, bidding the rebels under his command keep a good heart, and fear nothing.. -He spoke this at the battle of Preston Pans; and every attack they made, he spirited up his brother officers, and desired them to keep a good lookout, and take care the soldiers did their duty. Mr. Maddox was next called and sworn, who deposed, That he saw the prisoner at Carlisle, in his highland dress, at the time when his royal highness the duke besieged the city; that he was in a highland plaid, a bonnet, a white cockade and dirk, and was called lieutenant Mac Growther, and greatly esteemed by the rebels. The captains Vere and Nevet, who are officers in the king's service, deposed, That when the rebels surrendered themselves, they had orders from his royal highness the duke to examine all the rebel officers; and when they examined the prisoner, Mr. Mac Growther, he owned that he was an officer (a lieutenant) in the duke of Perth's regiment; and that he gave in his name as an officer;-and all the witnesses agreed, that the prisoner was under no restraint, but acted as voluntarily as the other rebel officers. PRISONER'S Defence. The prisoner's counsel insisted, that the duke of Perth had compelled bim to enter into the rebellion,* and had threatened him, if he refused to join them, to burn his house to the ground, to destroy all his cattle and stock of corn, and to lay waste all that belonged to him,† and to prove this they called four witnesses, who, in general, deposed, That several of the duke of Perth's men came and threatened him, the prisoner, with destruction, if he refused joining the rebel forces; and to bind him with cords; and that being compelled, he was forced to join them to save himself from ruin. The evidence on both sides being closed, my lord chief-justice summed up the evidence to the jury; and as the proof was very strong, and it appearing that he marched with the rebels, and enlisted at the beginning of the rebellion, and continued with them until the surrender of Carlisle, the jury (without going out of court) found him guilty. ALEXANDER MAC GROWTHER'S CASE. (Foster's Reports, p. 13.) "In the case of Alexander Mac Growther, there was full evidence touching his having * See Leach's Hawkins's Pleas of the Crown, b. 1, c. 17, s. 24. † See some observations respecting this plea in the Case of lord Wintoun, vol. 15, p. 805. been in the rebellion; and his acting as a lieu-The only force that doth excuse, is a force tenant in a regiment in the rebel army called the duke of Perth's regiment. The defence be relied on was, that he was forced in. "And to that purpose he called several witnesses, who in general swore, That on the 28th of August the person called duke of Perth, and the lord Strathallan, with about twenty highlanders, came to the town where the prisoner lived. That on the same day three several summons were sent out by the duke requiring his tenants to meet him, and to conduct him over a moor in the neighbourhood, called Luiny Moor. That upon the third summons the prisoner, who is a tenant to the duke, with about twelve of the tenants appeared; that then the duke proposed to them that they should take arms and follow him into the rebellion. That the prisoner and the rest refused to go; whereupon they were told, that they should be forced, and cords were brought by the duke's party in order to bind them; and that then the prisoner and ten more went off, surrounded by the duke's party. "These witnesses swore that the duke of Perth threatened to burn the houses, and to drive off the cattle of such of his tenants as should refuse to follow him. They all spoke very extravagantly of the power lords in Scotland exercise over their tenants; and of the obedience, (even to the joining in rebellion) which they expect from them. "Lord chief-justice Lee, in summing up, observed to the jury, that there is not, nor ever was, any tenure which obligeth tenants to fol. low their lords into rebellion. "And as to the matter of force, he said, that the fear of having houses burnt, or goods spoiled, supposing that to have been the case of the prisoner, is no excuse in the eye of the law for joining and marching with rebels.* "An apprehension, though ever so well grounded, of having property wasted or destroyed, or of suffering any other mischief, not endangering the person of the party, will be no excuse for joining or continuing with rebels; otherwise it would be in the power of any leader of a rebellion to indemnify all bis followers. It was so ruled in the case of Mac Growther, and of many of the Scotch prisoners, on the special commission, in Surry, in 1746. In Mac Growther's Case, besides the threat of burning his property, it appeared that he and twelve other tenants of the duke of Perth, being summoned to meet him, appeared on the third summons, on the 28th of August, when upon the person, and present fear of death; and this force and fear must continue all the time the party remains with the rebels. It is incumbent on every man, who makes force his defence, to shew an actual force, and that he quitted the service as soon as he could; agree. able to the rule laid down in Oldcastle's Čase, 1 Hale 50. that they joined pro timore mortis et recesserunt quam cito potuerunt.' "He then observed that the only force the prisoner pretends to, was on the 8th of August; and that he continued with the rebels and bore a commission in their army till the surrender of Carlisle, which was on or about the 30th of December. "The jury without going from the bar found him Guilty. But he was reprieved, and not exécuted. "N. B. All the judges that were in town were present, and concurred in the points of law. "N. B. Many of the Scotch prisoners made force their defence, and produced the same sort of evidence as Mac Growther did; and the same directions in point of law were given as in his case. And the matter of fact whether force or no force, and how long that force continued, with every circumstance tending to shew the practicability or impracticability of an escape,† was left to the jury on the whole evidence." the duke proposed to them to take arms and follow him into the rebellion; that they all refused to go; whereupon they were told that they should be forced, and cords were brought by the duke's party (about 20) in order to bind them; and that then the prisoner and about ten more went off, surrounded by the duke's party. Lord chief-justice Lee observed to the jury, that the only force pretended to by the prisoner was on the 28th of August, and that he continued with the rebels, and bore a com mission in their army till the 30th of December following. He was convicted but not executed. In all the like cases of the Scotch rebels, the matter of fact whether force or no force, and how long that force continued, with every circumstance tending to shew the practicability or impracticability of an escape, was left to the jury on the whole evidence." East's Pleas of the Crown, c. 2. s. 15. See, too, Mr. East's chapter (hereafter as it seems to be published) of persons capable of crimes, tit. Compulsion.' See in Foster's Reports, 1 Discourse, chap. 2, s. 8, p. 216. 514. The Proceedings at St. Margaret's-hill, Southwark,* relating to ALEXANDER and CHARLES KINLOCH (Brothers to Sir James Kinloch, bart.), on August 23, September 2, October 28, 29, November 15, December 15 and 20, 1746. Before the Lord Chief Justice Lee, Lord Chief Justice Willes, Lord Chief Baron Parker, Mr. Justice Wright, Mr. Baron Reynolds, Mr. Justice Abney, Mr. Justice Dennison, Mr. Baron Clarke, Mr. Justice Foster, Mr. Baron Clive, Sir Thomas De Veil, knt. and Peter Theobald, esq. relating to their Plea that they were born in Scotland, and ought to be tried according to the Laws of that Kingdom, &c. † 20 GEORGE II. A. D. 1746. August 23, 1746. be unalterable by the parliament of Great Bri tain, except for the evident utility of the subjects within Scotland; and as I am a subject THIS day bills of indictment were found against Alexander Kinloch and Charles Kin-born within Scotland, and stand indicted for loch, and others of the rebels to the number of twenty-two. The overt acts were laid in different shires in Scotland, according to the respective cases of the prisoners. And then the Court adjourned to the 2d of September for the arraignment of the prisoners. September 2, 1746. On this day, (there being no other judge in town) Mr. Justice Foster sat with two other commissioners, sir Thomas De Veil, knt. and Peter Theobald, esq. for the arraigning the prisoners. Alexander Kinloch and Charles Kinloch, and the rest of the prisoners, who were Scotchmen born, upon their arraignment severally delivered a paper into court whereof the following is a copy: "As I intend to insist on the benefit of the Act of Union, by which all the laws in Scotland at that time which concern private right are saved to the natives of Scotland, and declared to treasons charged to have been committed by me in Scotland, 1 humbly beg that the Court will be pleased to assign me counsel and a solicitor to advise me as to the manner of framing, and the use to be made of this defence; and that the Court will be pleased to indulge me in a few days time to advise with them, before I am compelled to plead; lest by pleading I may be deprived of the benefit of any such defence." Mr. Justice Foster told the prisoners that copies of their indictments having been delivered to them in due time, they ought now to have been ready to plead such pleas as they would stand by; and that the Court expected they should now plead accordingly. He told them withal, that if the matter contained in their papers would avail them at all, they would have the full benefit of it upon Not Guilty: since it amounts to no more than that their cases are not within the act of the last session, by authority of which act alone this court sits. They then severally pleaded Not Guilty. The CASE of Alexander KinloCH and CHARLES * We cannot find that any trial of these two Kinlochs was ever printed; the evidence against them (and the rest tried at St. Margaret's Hill) being so very plain, nothing remarkable happened at their trials. Their principal objection being in nature of a plea to the juris- Present lord chief justice Willes, Mr. justice diction of the Court, we shall insert their plea, Foster, and Mr. baron Clive. Alexander Kinthe entry on the record, demurrer, &c. relating loch and Charles Kinloch, who were the first to this point, with a brief account of the argu- of the prisoners concerned in the paper deliverments of the counsel and court, and judge ed the 2d of September that were brought to Foster's argument on the case, from his Re-trial, were set to the bar; and they agreeing ports, p. 15, et seq. Former Edition. See, also, East's Pleas of the Crown, c. 2, § 41. + See Foster 16, 23. 1 Wils. 157. East's Pl. Cr. ch. 2, § 41; and sir John Perrott's Case, vol. 1, p. 1315, and lord M'Guire's Case, vol. 4, p. 654, of this Collection, and the other books referred to by Mr. East. in their challenges, one jury was sworn and charged with them by the clerk of the arraignments. The junior counsel for the crown opened the indictment, and the solicitor general in a few words opened the evidence. When the counsel for the crown had proceeded thus far, the chief justice, before any evidence was given, told the prisoners' counsel, that he was informed they had some objection to make in behalf of their clients grounded on the Act of Union; which objection he said was proper to be spoke to before the counsel for the crown went into their evidence. Whereupon Mr. Joddrell, one of the prisoner's counsel, stated his objection, and spoke largely to it. The chief justice then said, that the objection being in nature of a plea to the jurisdiction of the Court, could not be made on the issue of Not Guilty; nor could any evidence in support of the objection be received upon that issue; and therefore proposed that a juror should be withdrawn ; and that the prisoners should have leave to withdraw their pleas of Not Guilty, and to plead this matter specially: and that the attorney general might demur, and so the point would come regularly before the Court. Mr. Justice Foster said on this occasion, that when he assured the prisoners, they would have the full benefit of this objection on their plea of Not Guilty, he had no intention of leading them into a difficulty, which they could not get clear of, without the indulgence of the Court. He thought they would be entitled er mero jure to the full benefit of the objection without such indulgence; and added, that the principle he went upon was this, if there be any weight in the objection, it must be that the case of the prisoners is not within the act of the last session, under which act alone this special commission is executed. And if it be not within that act, it is a case at common law; and consequently, taking it to be a case at common law, if no overt act be proved in the County, where the commission sits, and whence the jury comes, the prisoners must of course be acquitted. Sir John Strange, of counsel with the crown, strongly insisted, that in point of law the prisoners were entitled to the benefit of the objection on Not Guilty, if they could avail them selves of it; and the attorney general offered to wave all advantage that might be taken against the prisoners, if any advantage could be taken; and pressed that the trial might go on upon the Issue joined by them, and that the merits of the objection might be now considered. But it was otherwise ordered, and a juror was withdrawn, and the jury discharged upon the motion of the prisoners' counsel, and at the prisoners' request, and with the consent of the attorney general. And the prisoners withdrew their former plea, in order that they might be ready the next day with their pleas to the jurisdiction in form. To which the attorney general declared he would demur instanter. And the Court adjourned to the next day. The entry on the Record touching this matter, is as followeth : "Upon the motion of Charles Hamilton Gordon, esq. and Paul Joddrell, esq. being assigned as counsel for the defendants in this cause, and by their consent, and also at the desire and request, and by the consent of the defendants now at the bar here, and also by the consent of Mr. Attorney General on behalf of the king: It is ordered by the Court here, that Richard Toy the last of the jurors sworn and impannelled in this cause be withdrawn out of the pannel; and that the rest of the jurors in this cause be discharged; no evidence whatsoever having been given to the said jury in this cause either on the part of the king or of the defendants. And it is further ordered by the Court here, that the said defendants have leave to withdraw their pleas of Not Guilty by them formerly pleaded to the indictment in this cause, and have leave to plead to the jurisdiction of this court: and that the said defendants have time till to-morrow to put in such plea. And that they deliver copies of such plea to Mr. Sharpe, solicitor for the king in this cause, by eight of the clock this evening. And thereupon the said defendants do now here at the bar withdraw their said pleas of Not Guilty, in order to put in such plea to the jurisdiction of this court as aforesaid." October 29, 1746. On this day, present the same judges as yesterday. Alexander Kinloch was first set to the bar and again arraigned; whereupon he tendered a plea ingrossed on parchment and signed by his counsel Mr. Gordon and Mr. Joddrell; to which the attorney general demurred, and the prisoner instantly joined in demurrer. "And the said Alexander Kinloch in his own proper person comes, and having heard the indictment aforesaid read, and protesting that he is not guilty of the premisses charged in the said indictment, for plea nevertheless saith, That he ought not to be compelled to answer to the said indictment: because he saith that the kingdom of Scotland, before and until the time of the union of the two kingdoms of England and Scotland, was regulated and governed by the proper laws and statutes of that kingdom, and not by the laws and statutes of the kingdom of England; and that ever since the said union of the said two kingdoms that part of the realm of Great Britain called Scotland hath been, and yet is governed and regulated by the proper laws of that part of the said realm called Scotland, and not by the laws of that part of the said realm called England. "And the said Alexander Kinloch further saith, That within the said kingdom before the union of the said two kingdoms, and until the said union thereof, and within that part of Great Britain called Scotland ever since the said union, there bath been, and now is a certain court called the Court of Justiciary; and that all and singular offences of high-treason committed within the said kingdom of Scotland before and until the said union, and within that part of the realm of Great Britain called Scotland since the said union by the natives thereof, apprehended or taken for such offences there (except peers of the realm of Great Britain), have been and of right ought to be enquired of, heard and determined in the said Court of Justiciary before the justices of that court, or in some other courts, or before other justices within the said realm of Scotland before the union, and within that part of the realm of Great Britain called Scotland since the said union; and not in any court, or before any justices within the realm of England before the said union, or within that part of the realm of Great Britain called England since the said union. "And the said Alexander Kinloch further saith, That Fochabars in the shire of Murray in the said indictment mentioned, the place where the said offence contained in the said indictment is supposed to have been committed, before and until the said union of the said two kingdoms was within and parcel of the said kingdom of Scotland, and ever since the said union was and now is lying within and parcel of that part of the realm of Great Britain called Scotland. "And the said Alexander Kinloch further saith, That he was born within that part of the realm of Great Britain called Scotland (to wit) at Fochabars aforesaid: and that at the time when the said offence in the said indictment contained, is therein supposed to have been committed, and long before that time, and since, he the said Alexander Kinloch was resident and commorant within that part of Great Britain called Scotland (to wit) at Fochabars aforesaid. And this he is ready to verify. Wherefore the said Alexander Kinloch prays judgment if the court of our lord the king here will further proceed upon the indictment aforesaid against him, and that he may be dismissed from the court hereof and upon the premisses, &c.+ * See the Case of the honourable Robert Johnson, 6 East, 583. Demurrer. "And the said sir Dudley Ryder, knight, attorney-general of our present sovereign lord the king, who for our said present sovereign lord the king in this behalf prosecuted, as to the said plea of him the said Alexander Kinloch by him above pleaded as aforesaid, for our said present sovereign lord the king, saith, That the said plea and the mat. ter therein contained, are not sufficient in law to preclude the Court here from their jurisdiction to hear and determine the high-treason mentioned and specified in the said indictment, and above charged upon him the said Alexander Kinloch in and by the said indictment. Wherefore for want of a proper and sufficient answer in this behalf, he prayeth judgment, and that the said Alexander Kinloch may answer in court here to our said present sovereign lord the king touching and concerning the premisses aforesaid." Joynder in Demurrer. "And the said Alexander Kinloch likewise." The Prisoner's Counsel admitted, that his case is within the letter of the act of the last session, by authority of which this court sits: but insisted, that by the known rules of construction, if any great or manifest inconveniences do arise from adhering closely to the letter of the act, the Court ought, and alway doth depart from the literal construction. The construction they insisted on was, that for offences committed in England, commissions might issue for hearing and determining the same 'in any county of England; and for offences committed in Scotland, the like commissions might issue into any county of Scotland, which would, they said, answer all the ends of the act mentioned in the preamble; and would at the same time avoid all the inconve in behalf of the crown is attended with. They then mentioned several inconveniences attending such a construction of the act: Some of which might possibly have merited the attention of the legislature at the time the act passed. In the Case of Rex v. Grainger, Hil. 5 Geo.niencies which the construction contended for 3, a motion was made to set aside a dilatory plea to an indictment, which plea had not been verified by affidavit, nor had any probable matter been shewed to the Court, to induce them to believe that the fact of it was true. In support of the plea was cited this case of Alexander Kinloch," where there was no affidavit." But by lord Mansfield, "That was at the bar: It is not like the present case." And the plea was set aside, for want of an affidavit, 3 Burr. 1617. In that case of Grainger his counsel also cited on his behalf the stat. 4 and 5 Ann, cap. 16, s. 7, which enacts, “That nothing in the act before contained shall extend to any writ, declaration, or suit of appeal of felony or murder, or to any indictment or presentment of treason, felony or murder, or other matter, or to any process upon any of them, or to any writ, bill, action or information upon any penal statute:" but lord Mansfield observed, that the above recited sect. does not extend to the 11th sect. of the same stat., which 11th sect. had been relied on against the plea. It enacts, that "no dilatory plea shall be received in any Mr. Attorney General in answer said, That the rules of construction as applied to acts of parliament grounded on inconveniences, whether imaginary or real, hold in no cases but where the meaning of the act is doubtful: In plain cases, where the intention of the legislature is evident, it is the duty of the Court to put the law in execution, and to leave all considerations of inconveniences to the legislature, And if the parliament had intended that different commissions should issue for the trial of treasons committed in England and Scotland respectively, they would have said so: they court of record, unless the party offering such plea do by affidavit prove the truth thereof, or shew some probable matter to the Court, to induce them to believe that the fact of such dilatory plea is true." |