without incurring the danger of an escape. Mr. Attorney concluded with a motion, that the process Mr. Macdonald stood charged with at the plaintiff's suit might be discharged. of a messenger by virtue of a warrant for that purpose from the duke of Newcastle, one of his majesty's principal secretaries of state. N. B. The person of a man under an atHe was supported in this motion by sir John tainder is not absolutely at the disposal of the Strange and the Solicitor General. It was said crown. It is so for the ends of public justice, by Mr. Attorney, but not strongly insisted on, and for no other purpose. The king may order that a person under an attainder is civiliter mor-execution to be done upon him according to tuus; his person and estate are absolutely at law, notwithstanding he may be charged in the disposal of the crown; and consequently custody at the suit of creditors. But till exehe is not liable to civil suits. And to this pur-cution is done, his creditors have an interest in pose he cited Trussel's Case. (1 Leon. 326. Cro. Eliz. 213.) To this point Mr. Henley and Mr. Ford for the plaintiff insisted, and so the Court agreed, that the later resolutions have been, and the law hath been long settled, that an attainted person is liable to civil suits: but by the rules of the Court he ought not to be charged, without leave of the Court, or of a judge at his chambers. The point reported by Leonard and Croke to have been adjudged in Trussel's Case came afterwards under consideration in actions brought by other persons against that very man (Co. Ent. 246. a. b. Cro. Eliz. 516, Co. Ent. 248. 2 Aud. 38. Moor, 753. S Inst. 215,) and was ruled quite otherwise. The point chiefly insisted on by the counsel on the side of the motion was, that to charge the defendant in this case, so as to make his person liable, would be a means of defeating the king's pardon; because he would be thereby disabled to comply with the terms of it. It would be in effect saying, that his majesty shall not grant a pardon on these conditions, he shall pardon absolutely, or not at all. To this purpose they cited Foxworthy's Case, reported in Salk. 500. 2 lord Raym. 848. Far. 153. And the Case of Coppin and Gunner in 2 lord Raym. 1572. But the Court said, We cannot judicially take notice of his majesty's intentions touching the pardon. The crown, in case of pardons, signifieth its pleasure finally and irrevocably by the great seal, and by that alone. A pardon may not pass at all, or it may be upon other conditions than are suggested at the bar, or it may be a free pardon. And therefore till the pardon is passed, it is too early for the Court to give any opinion upon the main question. Accordingly the Court gave no opinion; and Mr. Attorney took nothing by his motion.* Mr. Macdonald having afterwards made his creditor Mr. Ramsay easy with regard to his debt, the action was withdrawn. And he was in December 1749, delivered into the custody † N. B. The rule in Foxworthy's Case seems to have been over-basty, and the reasons on which it is grounded appear to me to be inconclusive: That in Coppin and Gunner seems more equitable; since it secured to the defendant the benefit of his pardon, without prejudice to the plaintiff, who might resort for satisfaction to the effects of the defendant, if he could find any. Foster. Former Edition. his person for securing their debts. (6 H. 4, 6. b. 7. a.) And he himself as long as he liveth, (Crom. 113, a.) is under the protection of the law. To kill him without warrant of law is murder; for which the murderer is liable to a prosecution at the suit of the crown, and likewise to an appeal (Bro. Appeal 5,) at the suit of the widow. For though his heir is barred by the attainder, which corrupteth his blood, and dissolveth all relations grounded on consanguinity, yet the relation grounded on the matrimonial contract continueth till death. And if a person under an attainder be beat or maimed, or a woman in the like circumstances ravished, they may, after a pardon, maintain an action or appeal, as their cases respectively may require (3 Inst. 215.) And though before a pardon they are disabled to sue in their own names, I make no doubt that they are entitled to prosecute, according to the nature of their respective cases in the name of the king; who will do equal right to all his subjects. N. B. During the Trials of the Rebels at St. Margaret's Hill, Southwark, under the commission of 1746, one of the prisoners challenged peremptorily, and for cause, so many of the jurors, that there was not a sufficient number left on the pannel to proceed on his trial. In that case the Court ore tenus, (for it was, as hath been already observed, a commission of gaol delivery as well as of Oyer and Terminer) ordered a new pannel, and adjourned for several days. On the day of adjournment the sheriff returned a pannel of the same jurors that had served through the whole proceeding, those who had been challenged by the prisoner, or sworn before, included. And a sufficient number appearing, he was tried. The like case happened on the trial of one of the assassins in king William's time. Mr. Cook on the 9th of May challenged in the like manner till the jurors remaining on the pannel were not sufficient to make a full jury; whereupon the Court, ore tenus, ordered a new pannel, and adjourned to the 14th.* On that day his counsel insisted that a new panuel ought not to have been ordered; but that an Habeas Corpora with a Tales should have been awarded, according to the opinion in Stanford (f. 155.) But the Court declared, that this being a proceeding under a commission of gaol delivery as well as Oyer and Terminer, they might, and indeed always do in the like case, award a new * See Peter Cook's Case, vol. 13, pp. 311, 317-329. pannel if necessary, ore tenus, without writ or precept. In a mere commission of Oyer and Terminer no pannel is-ordered till the defendant hath pleaded to issue, and issue is actually joined; and then it is done by precept in the nature of a Venire. And if in such case there should be a want of jurors, an Habeas Corpora with a Tales may, said the Court, possibly issue; but no Tales can be granted upon a commission of Gaol Delivery. And Mr. Justice Powel upon that occasion said, that if the sheriff bad returned all new men without regard to those who appeared and were sworn or challenged on the 9th, it had been well enough. The reason of the adjournments in these cases was, that the prisoners might have copies of the new pannels in due time, pursuant to the 7th of king William ; otherwise new pannels might have been ordered returnable instanter. The original pannel in 1746, was upon great deliberation ordered, sitting the Court, ore tenus, as under the commission of Gaol Delivery; though, as I have already observed, a precept in common form for holding the sessions had issued under the seals of the three chief's and three senior judges. Besides the Cases that are here inserted, there are in print reports of the Trials of several other persons for having taken part in this same Rebellion, but they are for the most part very brief, and destitute of particular interest. 521. The Trial of ARCHIBALD STEWART, esq. late Lord Provost of Edinburgh, for Neglect of Duty and Misbehaviour in the Execution of his Office, as Lord Provost of Edinburgh, before and at the Time the Rebels got Possession of that City, in the Month of September 1745; holden before the High Court of Justiciary at Edinburgh: 20 & 21 GEORGE II. a. D. 1747. [Extracted, under the Hand of the Clerk of Justiciary, from the Books of Adjournal of that Court.] CURIA JUSTICIARIE, S. D. N. Regis, tenta in nova Sessionis Domo Burgi de Edinburgh, vigesimo quarto Die Mensis Martii 1747, Per honorabiles Viros Magistros Alexandrum Fraser de Strichen, Patricium Grant de Elchies, et Carolum Areskine de Tinwald, Commissionarios Justiciariæ dict. S. D. N. Regis.cognizance, upon condition, that if the said (Lord Strichen Præses.) Curia legitimè affirmata. THE which day compeared Patrick Haldane of Bearcrofts, esq. his majesty's solicitor, and advocate-depute, and produced, in presence of the said lords, a Writ of Recognizance, signed by his grace the duke of Newcastle, of date the 23rd day of January last by-past, which was ordered to be read and recorded; and whereof the tenor follows. 2,500l.; Alexander Campbel, of the parish of Archibald Stewart do personally appear before "Middlesex and Westminster to wit; Be it remembered, That upon the twenty-third of Immediately after reading whereof, comJanuary, in the 20th year of the reign of our sove-peared the said Archibald Stewart, merchant reign lord George the second, king of Great- in Edinburgh, and judicially sisted himself in Britain, &c. came before me, and acknow- Court before the said lords, in terms of aud Jedged themselves to be severally indebted agreeable to the said writ of recognizance, and unto our said sovereign lord the king as fol- humbly insisted, that thereby the condition of lows, viz. Archibald Stewart, of Edinburgh, the said writ was fulfilled, and the same fell to merchant, the sum of 5,000l.; David Scot, be voided, and he dismissed, if there was no of Scotsarvet, in the shire of Fife, esq.; the person on his majesty's behalf ready to insist sum of 2,500l.; James Oswald, of Dunni- against him. kier, in the said shire of Fife, esq. the sum of To which Mr. Patrick Haldane, his ma jesty's advocate-depute, made answer: that the writ of recognizance was not only for Mr. Stewart's appearance this day, but thereafter, from time to time, when thereto required; That, having only had occasion lately to see the said writ, he was not just now ready to insist in any matters on his majesty's behalf against the said Archibald Stewart, as therein mentioned; and moved their lordships would appoint a farther time for his appearance again. Mr. Stewart, without making any reply, submitted bis case to the Court. the writ of recognizance should continue, and satisfy Mr. Stewart how or when he would be brought to trial. It was replied for Mr. Stewart, that he expected, if there was any thing to be objected to him on behalf of his majesty, considering the long space of time interveening betwixt this and his former appearance, he would have been brought under some prosecution for it ere now; that the absence of my Lord Advocate, however necessary, and his depute's not being properly instructed, was to Mr. Stewart or his cautioners "The Lords Commissioners of Justiciary nothing to the purpose; that Mr. Stewart's aphaving considered the said Writ of Recogni-jected to him, was, as to his cautioners, a libepearance, now and before, and nothing obzance, and above debate, they continue the diet, ration of their bail, which was so very great as for the said Archibald Stewart's compearance, to Monday the 8th day of June next, and ordain must appear to be a hardship if it should last him to sist himself personally in Court that any longer; and therefore craved that he might be dismist, and the bond voided. day, without prejudice to the lord advocate to insist against and prosecute the said Archibald lay sought was so small, as plainly shewed that It was duplied by Mr. Haldane, that the deStewart sooner, in behalf of his majesty, if he there was no intention of putting a hardship ou he doubted not but the Court would continue any person; and, without farther argument, Mr. Stewart's farther compearance, in terms of, Monday next the 15th instant. and agreeable to the writ of recognizance, till shall see cause. "Signed, ALEX. FRASER. I. P. D." CURIA JUSTICIARIE, S. D. N. Regis, tenta in nova Sessionis Domo Burgi de Edin. burgh, octavo Die Mensis Junii 1747. per honorabiles Viros Magistros Alexandrum Fraser de Strichen, Patricium Grant de Elchies, Carolum Areskine de Tinwald, et Hugonem Dalrymple de Drummore, Commissionarios Justiciarii dict. S. D. N. Regis.-(Lord Strichen Præses.) Curia legitimè affirmata. The said day, in obedience to the foregoing order, compeared the said Archibald Stewart, and sisted himself in court, when he and messieurs Lockhart, Ferguson, Home and Stewart, advocates, his procurators, insisted, That, in obedience to the last Order of Court, in consequence of the recognizance therein mentioned, he had appeared a second time; that, as he pled first, so he now did, that the condition of the said writ of recognizance was fulfilled; and that the same ought to be avoided, and he dismissed, if there was no person yet ready to insist against him on his majesty's behalf, which he had reason to believe was the case. To which Mr. Patrick Haldane, his majesty's advocate-depute, made answer: That the Lord Advocate, who, at the last diet, attended the service of his country in parliament, was, con. trary to expectation, still detained, although he intended to have been in Scotland long before now, when he could and would have proceeded to bring Mr. Stewart to trial in the ordinary way: That, for his part, as advocate-depute, he had no such instructions as he could move in that matter, either just now, or by a proper process; and all he was instructed to ask of their lordships, was a delay of eight days, which could be no prejudice either to Mr. Stewart or his cautioners, and against which time he was pretty well assured his majesty's advocate would be present, and shew cause why VOL. XVIII, "The Lords Commissioners of Justiciary, having considered the above debate, they continue the diet for the said Archibald Stewart's farther compearance to Monday the 15th day of June instant, and ordain him to sist himself to the lord advocate to insist against and prosepersonally in court that day, without prejudice cute the said Archibald Stewart sooner, if he shall see cause. "(Signed) ALEX. FRASER, 1. P. D." CURIA JUSTICIARIE, S. D. N. Regis, tenta in nova Sessionis Domo Burgi de Edinburgh, decimo quinto Die Mensis Junii 1747. Per honorabiles Viros Magistros Alexandrum Fraser de Strichen, Patricium Grant de Elchies, Carolum Areskine de Tinwald, et Hugonem Dalrymple de Drummore, Commissionarios Justiciarii dict. S. D. N. Regis.-(Lord Strichen Præses.) Curia legitimè affirmata. The said day compeared the said Archibald Stewart, in obedience to the last order of court, and sisted himself agreeable to his writ of recognizance, and craved the said writ might be declared void; and he dismissed, in case the Lord Advocate was not yet ready to insist against him, as, if he was, he had at least got no notice of it, nor so much as of any time for his trial. The Lord Advocate thereupon appeared, and represented the former delays were not owing to him, but, in some measure, to Mr. Stewart's own friends, who applied to him at London for a delay, till he should come to Scotland and be present himself; which truly was the reason of his not raising and executing a criminal process against Mr. Stewart to the last diet he appeared. That, to shew his lordship had no in 3 K clination to give Mr. Stewart any unnecessary delay, he now was ready to insist, and for that end gave in, and presented to the Lords, a bill signed by him, craving warrant for criminal letters against the said Archibald Stewart, for the crimes and misdemeanours therein mentioned, and fixing the diet for his trial to the third of July next. Thereafter Mr. Lockhart moved, in behalf of the cautioners for Mr. Stewart, that the writ of recognizance should be voided; and for Mr. Stewart, in place thereof, that he was willing to find new bail for any sum the Lords should appoint and judge reasonable, as the bail be was presently under was by far too extravagant. To which the Lord Advocate made answer: That the writ of recognizance, on which Mr. Stewart was liberate, was still in force, and behoved to continue, as the cautioners and Mr. Stewart not only became bound that he should appear such a day, but from time to time thereafter, as the Lords should appoint, and not to depart, without leave, out of the court; that this bail was taken by, and given to one of the highest authority, and that it must necessarily continue agreeable to the said writ, till he be dismissed. Whereupon Mr. Stewart himself, and Mr. Elliot his procurator, waved the motion made by Mr. Lockhart anent renewing the bail, and agreed that the former stand good, and he had no objection why the next diet of compearance might not be the third of July next. The Lords Commissioners of Justiciary, having considered the above debate, they continue the diet, for the said Archibald Stewart's farther compearance, till Friday the third day of July next to come. "(Signed) ALEX. FRASER, I. P. D.” Upon the 3d of July the diet was continued to the 13th of that month. mention, That whereas, by the laws of this and all other well governed realms, all neglects of duty, and misbehaviours of persons employed in offices and places of publick trust; and all violations of the trust and duty of such offices, are crimes of a high nature, and severely punishable; and the public justice of the realm requireth a vigorous prosecution of such offenders, especially when such neglects of duty and misbehaviours are incurred by the chief magistrate of any great or considerable city, in a time of public danger, and open rebellion; and particularly by an act made in the 14th parliament of king James the second of Scotland, chapter 76th, intituled, The Punition of Negligent Officiars, "It is ordained and determined, That if any of the king's officiars or sheriffs, mayors, bailies, crowners, serjeants, provost of burghs, and their ministers both to land and to burgh, be found faulty or negligent in the execution of their offices, and it may be lawfully proved on him, or notourly kend; if the said office pertains to him in fie and heritage, he shall tyne his office, and the profit thereof, for an year and a day, and to be punished by the king in his person and goods after the quantity of his trespass; and if his office pertains to him not in fie and heritage, he shall tyne his office for all the times he has it, and to be punished in his person, after the quantity of sik trespass, at, the king's will." Yet true it is and of verity, that the said Archibald Stewart of the city of Edinburgh, merchant, and late provost of the said city, is guilty, actor, or art and part of the said crimes, or one or other of them, aggravated as aforesaid; in so far as he, being lord provost of the city of Edinburgh, in the year 1745, when a most bold, desperate, wicked, and unprovoked rebellion was raised and carried on against his majesty within this realm, by a large body of armed traytors, headed by the eldest son of the Pretender to his crown, and assisted with troops and money from his enemies abroad, and, at such a juncture, it being his duty, as the chief magistrate of the said city, and the king's lieutenant therein, having authority to command the military force of whatever kind within the city, to have exerted himself with fidelity, vigilance and zeal, for opposing the progress of the rebellion by all lawful methods in his power, and particularly for preserving the city entrusted to his care from falling under the power of the rebels, or becoming a prey to them, he, the said Archibald Stewart, was grossly faulty or negligent in the execution of his said office and duty on so important an oc casion, in manifest violation of the trust and duty of his office: and particularly was thus guilty on the 15th and 16th days of September in the year of our Lord 1745, and upon several other days and times in the said month of September, and the month of August preceding, within the said city of Edinburgh, where he was resident for the time. And moreover, the said Archibald Stewart was not only faulty or negligent in the execution of his office, and notoriously known to have been such, but was the college of Edinburgh, and were ordered by guilty of malversations and counteracting the the council of the city of Edinburgh to be duty of his office, in such an exigency, in made, the execution whereof was chiefly inmany instances, and particularly, amongst cumbent on the lord provost for the time being, others, in these following: First, That whereas yet the same was carried on very slowly and the preservation of the city of Edinburgh, imperfectly, notwithstanding frequent remonfrom falling into the hands of the rebels, was of strances and complaints made by divers of the great importance to that city itself, and to the faithful and zealous inhabitants: and, as late king and the kingdom in general, and the care as Sunday the 15th of September 1745, when of it especially incumbent on the lord provost the rebels were marching to, and were come for the time being, and ought to have been within a few miles of the city of Edinburgh, looked after with the utmost attention, zeal he the said Archibald Stewart refused to give and vigour, in such an exigency, as when the orders for loading the cannon planted upon the rebels got to the southward of the body of the city walls, and, about the same time, he refused king's troops under the command of sir John to apply for some of the sailors from on board Cope, of which advices came to Edinburgh in the one of the king's ships of war for managing of fatter end of August 1745, from which there was those cannon, when he could not otherways reason to fear that the taking of that city would be provided of fit persons to act as gunners. be attempted by the rebels, and to hope that Fourthly, That about the same time, he the said the king's army might soon after come to its Archibald Stewart refused to listen to, or to relief: yet, in these circumstances, he the said follow several salutary propositions that were Archibald Stewart, then chief magistrate, and made and pressed by well-affected inhabitants, sole military governor of that city, did nothing for the greater safety and better defence of the of his own accord towards providing effec- city; such as, that the trained bands, consisttually for the defence thereof; and, on the ing of a promiscuous number of burgesses, eontrary, every measure for that purpose, pro- whereof many were known to be disaffected, posed, and pressed by the honest zeal of the should be laid aside, as had been practised then magistrates and council, and of many of during the Rebellion in the year 1715, and the citizens and inhabitants, instead of being that arms should only be trusted in the heartily encouraged and promoted by him the hands of such as were known to be well-afprovost, were by him thwarted and retarded, fected, and that a general search for arms or else absolutely refused or declined; and in should be made within the city, and that a this manner it was that he received a proposi- number of the ablest bodied men of the tradestion made to him in the latter end of August men's servants should be employed and armed 1745, for raising a regiment of 1,000 men, by for assisting to defend the city, when it should voluntary subscription, for defence of the be attacked, upon the encouragement of a guicity; against which he formed objections on nea to be given to each of them; towards deaccount of the expence, and affected doubts fraying which expence an offer was made concerning the legality thereof. And, secondly, to the said Archibald Stewart, on the part of He treated in like manner another application the volunteers, to have raised or advanced the made to him in the beginning of September sum of 500l. sterling. Fifthly, That the said 1745, by a number of gentlemen or citizens Archibald Stewart misbehaved himself in like for leave to associate themselves under his manner, in respect of the succours that were chief command, as volunteers, for the de- brought at the time aforesaid from the country fence of the city, and service of the govern- in the neighbourhood of Edinburgh, consisting ment; and, after his objections to the legality of numbers of well-affected and zealous subof that measure were over-ruled, he would jects, under the conduct of gentlemen of known not suffer it to be published or given out that loyalty and good affection, who came and vohe heartily approved, but barely that he ac- luntarily offered their service to assist in dequiesced in that measure; and yet his reluc- fending the city of Edinburgh, without any tancy or aversion to it, or uneasiness under it, fee or reward, upon that dangerous and presscontinued to discover itself on frequent occa-ing occasion, the approach of the rebels to that sions, and particularly by the cold, if not the rude manner in which he behaved towards those volunteers, consisting of a number of very respectable gentlemen and burgesses, when he went to a publick meeting of them, in the New Church isle of Edinburgh, to name their captains. Thirdly, That, in like manner, through the misbehaviour of the said Archibald Stewart, when certain repairs of the city walls, and other works for making it defensible for some time, against an enemy who had no artillery, and were very unskilful in making sieges, had been proposed and advised, amongst others, by the now deceast and famous Mr. Colin Mac Laurin, professor of mathematics in city; but these very seasonable and laudable offers were by the said Archibald Stewart very coldly received and ill treated: For instance, he proposed to sir Robert Dickson of Inveresk, who came to Edinburgh upon Sunday the 15th day of September 1745, from Musselburgh, with about 150 volunteers, to offer their services for the purposes aforesaid, that these men should inlist themselves for three months as soldiers in the Edinburgh regiment; a proposition which, instead of being calculated sincerely to provide for the better defence of the city, could no otherways be received by those volunteers, than as an insult and discouragement to their zeal, who, being trades |