No. 16. ÆNEAS MACDONALD TO THE DUKE OF NEWCASTLE.

S.P.D. George II, 36/88, folio No. 426

MY LORD—I should not have made bold to have troubled your Grace directly with a Letter, if I was not persuaded that you would approve of the Contents thereof being proposed immediately to your Grace, without the Communication of any other whither you thought them worth consideration or not.

The late Rebellion, my Lord, was a thing that appear’d so unaccountable to me, that (tho’ I could not save my own family, att a time when Brothers rose up against Brothers, and Sons against their Fathers) yett I can demonstrate that it was not possible for a person under my Circumstances to doe more towards crushing it than I did, having allways from the doctrine of the most sensible people even of that party abroad (such as Lord Marischal) look’d upon any such attempt (tho’ concerted with some forethought) as unlawfull without the Consent of the nation), and I so much detest such mad flights, that if your Grace thinks well of it, I’m very willing to engadge to give you all the Intelligence that for the future I shall be able to gather att the French Court of such or any other attempts, and I dare be bold to say there is not one man belonging to the Isle of Brittain so capable of serving your Grace that way as I am. In case you think such Intelligence worth while, and the least enquiry into my character will leave no room to doubt but that whatever I solemnly promise I shall perform to a title.

I hope your Grace will pardon this great presumption, and look upon it as att least a certain signe that I know nothing more of the late affair that can be of any service to the Government and repose of the nation than what I told att my examination.—I am, with the most profound submission, my Lord, your Grace’s most humble and most obedient servant, Æneas Macdonald.

Indorsed—Oct. 26th, 1746. Mr. Æneas Macdonald.

Reference	Title Or Scope	Covering Dates
SP 36/64	Newcastle to Postmaster General authorising him to open all mail to Aeneas MacDonald, banker in Paris, and to William Cockburn, and transmit copies to him. Folio 386	1744 Dec. 11
SP 36/65	Aeneas MacDonald, at Paris, to John Blair, esq., requesting that Sir Roderick MacLeod be informed that more funds must be sent to Donald, or he will have to return. [Found in Blair’s possession after he was arrested on 5 June 1745. Enclosed in SP 36/66,f.	1745 Mar. 26
SP 36/67	Aeneas MacDonald, at Perth, to [the Young Pretender], denying allegations made against him (which have incurred the latter’s displeasure) by Sir John Macdonell and Clanranald, that he had discouraged soldiers from the cause, to which he professes his loyalty.	1745 Sept. 10
SP 54/25/52B	Intelligence of the arrival of Aeneas MacDonald and Young Glengary, with Prince Charles	[1745 Aug]
SP 54/25/61B	Report of an engagement between British and French ships [HMS Lion and the Elizabeth], in which both were disabled; on Angus [Aeneas] MacDonald’s landing on Barra; and on the subsequent Jacobite activity, involving Kinloch Moydart [MacDonald of Kinlochmoidart] and Young Clanranald	[1745 Aug 11]
SP 54/33/15	Secretary Newcastle to Albemarle. On his appointment as Commander in Chief in Scotland; ordering vigilance to prevent the Young Pretender’s escape; on reducing the highland companies; ordering troops placed to prevent the stealing of cattle, robberies and other outrages; directing that Aeneas MacDonald be sent to London; also commending his prudence concerning ‘the little differences that have happened between the troops and the inhabitants of some of the towns’; and on the allies’ victory over the French and Spanish, in Italy	1746 Aug 22
SP 54/33/18A	Albemarle to Secretary Newcastle. Concerning the deployment of troops; reporting the Inverness magistrates’ ungrateful attitude; on the problem of obtaining intelligence of Charles Edward; on the strength of Loudoun’s regiment and its duties in isolated areas; reporting the arrival of Aeneas MacDonald in Edinburgh; the need to complete the road from Dumbarton to the Western Isles; hoping that problems between the citizens of Aberdeen and the military can be resolved without a public trial; asking for orders on prisoners, including Glengarry and Capt O’Neill; and on victory in Italy	1746 Sept 1
SP 54/34/3	Secretary Newcastle to Albemarle. Ordering Loudoun’s regiment brought up to strength; reporting that no decision has been reached on the request to retain the Argyllshire men; on Charles Edward’s escape aboard the French ships, and the need to put Scotland in a condition to discourage his return.	1746 Oct 7

The Scots Magazine 1747 Page 244

According to a letter from Carlisle, of May 1^st. a pardon has been procured, by the interest of Col. Stanwix, for Mr. John Graham of Lake, who was convicted of high treason at the special assizes held there. Tis added, that this act of generosity has so endeared Col. Stanwix to the people of that city, (Mr. Graham being much respected), that it is not doubted but he will be chosen next election without opposition.

On the 28^th, an order was sent to Mr. William Dick, one of his Majesty’s messengers, to discharge out of his custody Roger McNeal of Barra, Esq.; who was taken up in Scotland about a year ago, on suspicion of treason, and carried to London. The same day, Mr. Æneas Macdonald, who has been in the custody of a messenger above a year for treasonable practices, was committed to Newgate; of whom it is said, that he was born in Scotland, but lived in France ever since he was two years old, till the late rebellion, when he came over with the young pretender. See Scots Magazine, 1746 page 445.

The Scots Magazine 1746 page 445.

Great diligence has been used by several parties to trace the footsteps of the pretender’s son; and he most probably have suffered great hardship, been sometimes pretty near taken, this we have one instance in letters from Aberdeen; which bear, That, some time ago, the young pretender came to Lady M—g—y’s in great distress, and begged admission; that the Lady objecting to the danger, a neighbouring Gentleman sent, touched with his condition, offered to entertain him that night, which he accepted; that, after refreshing himself at this Gentleman’s house, he declared had not touched bread for two days, lain in a bed for five nights, and desired to go to bed; that he slept thirteen hours before he awoke, the Gentleman and more watching for fear of a surprise that, two hours after he was gone, an officer with a party of Campbells came and presenting a pistol to the Gentleman’s breast, threatened to shoot him if he did not discover the pretender; and that thereupon he owned, that a Gentleman whom he did not know, had lodged with him the night before, but said he was going he knew not whither.—It was talked about the beginning of September, that he had imbarked, some weeks before, in the Murray frith, on board a French privateer which hovered for him some time off the Orkneys, and that another personated him for a while after he was gone; and a letter from Dunkirk, dated Aug. 22 N.S. bears, that the young Chevalier had landed some days before, at Blarkenburg in Capt. Dumont’s vessel of Dunkirk, who had gone in quest of him. — But letters from Fort William, of Sept. 21. Bear that there was an account from the braes of Locharkaig, that on Thursday the 12^th at twelve o’clock, the pretender’s son imbarked on board a French ship of war in the same loch in Moydart where he first landed, attended by Macpherson of Clunie with others of his clan, Cameron of Lochiel, Dr. Cameron his brother, Cameron of Torcastle, Allan Cameron, Macdonald of Lochgary, and many others whose names were not known; and one Barisdale was said to have gone on board before the pretender’s son got to the ships. – About this time we were amused with reports of a French fleet being on the coast, consisting of six ships of 60 guns each, and ten tenders: but a letter from Inverary September 30^th, says, that the truth of the matter is as follows. “On the 6^th inst. Two French ships of force anchored at Lochnanua. Next day four Gentlemen landed and sent Hugh Macdonald in Keppoch in quest of some of the rebel chiefs, and then returned to their ships. This man having brought Barisdale and his son to them, they landed again on the 8^th, got guides to carry them to Dr. Cameron, and were no more heard of for several days. Before the 17^th, the Macdonalds of Clanronald senior, Lochgary, Glenalladel, Dalela and his two brothers, the second Barisdale and son, and some say Stewart of Ardsheill and four Gentlemen from Appin, were also on board. On the 17^th, Macdonald Keppoch, said to have lost one arm, and to be lame in one of his legs, went on board, with three others, thought to be some country Gentlemen. On the 19^th came the young pretender, in a bad state of health, dressed in a short coat of black eeze, trowse, a philebeg, and a gray plaid, accompanied by Lochiel, Dr. Cameron, Ludovick Cameron, Cluny Macpherson, the four Gentlemen who had landed on the 8^th, and ten or twelve persons more. They sailed on the 20^th, without landing any force, or committing any hostilities, and were seen that evening between the isles of Coll and Muck. The Gentlemen, as well as commons, were seen to weep, tho’ they boasted of being back soon with an invincible force. They gave out two sixty gun ships were cruising off Uist, to convoy them to France.” According to another letter, of October 1^st, eye-witnesses relate that about 600 rebels went off in the French ships. Gl. J.

Michael Vezazi [Ed. M. Michel – Author of Young Juba], an Italian, long in the pretender’s service, who was committed prisoner to Dumbarton castle with the Marquis of Tullibardine, and Æneas MacDonald, banker at Paris, brother to Kinlochmoidart, were brought into Edinburgh 31^st of August, and committed, the former to the city jail, and the latter the castle. A short while after, Mr. Macdonald set out for London, under the care of Major Belford, of the train, and another officer, who watched him every night by turns. The Italian was enlarged on parole on the 15^th of September. Some depredations are committed in Buchan and other places.—A short while ago, a man came to a Minister’s house there, when his family were at a market, and delivered him a letter, requiring 10l. to be given him. The Minister said he could not give it; but the man persisted in his demand. In a little time five or six, more men came in, their faces disguised, and repeated the demand. The Minister offered them what money he had in his pocket, five or six shillings. But this not satisfying them, they went to his cabinet, took out about six guineas, and 41. in silver, and went off; threatening further mischief if any noise was made about the matter. C. — A party is said to have gone likewise to the house of Mr. Bartlet of Afforsk, in the parish of Ghamry, and to have carried off what money they could find. M. — Another Gentleman, in Buchan, had thirty cows carried off. C.—We had advice from Aberdeen some time ago, that a party of the rebels, a short while after their dispersion, killed one Adam, a Sheriff-officer, because he had given intelligence to the King’s army when lying at Aberdeen.

Latest advices, however, bear, that the peace of the country seems to be pretty fully restored. Loudon’s regiment, and two companies of Monros and Guns, are stationed so properly, from Crieff to Fort Augustus and Inverness, that travellers meet with no disturbance; and sometimes they are escorted from station to station, without fee. M.

The magistrates of Aberdeen have presented the freedom of that city, in a gold box, to the Duke, by the hands of John Maule, Esq; their representative.in parliament.

On the 19^th of September, Capt. Crosby, who deserted from the British army in Flanders, and came to Scotland with the French troops, was hanged, and two other deserters shot, at Perth. The hangman of Perth absconded on this occasion; and one called from Stirling, died on the road. Thereupon a prisoner brought out of jail officiated. M.

In the night between the 12^th and 13^th of September, a gallows put up in the Grass market of Edinburgh in January last by order of General Hawley, was sawed through by some persons unknown. It was never usual before, to keep the gallows standing on the street.

Pursuant to a sentence of the court of judiciary, Francis Anderson and Andrew Fithie [page 289] were hanged, the former between Edinburgh and Leith on the 10^th, and the latter at Forfar on the 11^th of September, and their bodies hung in chains, for the murder of John Catanach. Barbara Couts was acquitted. Anderson, in his last speech, accuses this woman, the witnesses that swore against him, and all that lived in the village with him, of having advised the murder, and rejoiced when it was perpetrated; imagining that their friends and neighbours who had been in the rebellion, would be ruined by Catanach’s informing against them; and says the fact was committed thus. Anderson having got notice where Catanach was, asked Fithie and other two men if they would go help to put him out of the way. They were all willing; but Anderson would take Fithie only. Accordingly they two having found Catanach at Meikle Kenny, took him aside, and said, Now, John, you are come to ruin the country and honest folk. Catanach answered, I have not informed against you or any of your’s. Without more ado, having thrown him down, Anderson held him till Fithie struck him on the head with a stone, and made his blood fly in Anderson’s breast. Then both with repeated blows completed the murder. The instigators came to see the body, and advised to bury it privately; which was done, but soon discovered.

The Scots Magazine 1746 page 289.

About the beginning of June, one John Catanach, servant to Mr. Ogilvy of Kenny, in Angus, who had been in the rebellion with his master, was apprehended by some of St George’s dragoons, and in a short time after set at liberty. Being afterwards observed to go and come once or twice between the place of his former residence and Lt-Col. Arabia’s quarters, he was suspected of having become an informer; and was barbarously murdered on the 11^th. Francis Anderson and Andrew Fithie in Kenny, and Barbara Couts, servant to Mr. Ogilvy, suspected of being the murderers, are apprehended, brought to Edinburgh prison, and indicted.

Several rebels, or suspected persons, are made prisoners; particularly Lord Lovat, Sir James Stewart of Burray, Macneil of Bara, Secretary Murray, Laurence Mercer, son of Sir Laurence Mercer of Aldie, deceas’d, &c. The three first were never actually engaged in the rebellion. Lady Ogilvy, taken at Culloden, was brought to Edinburgh by a party of soldiers, and committed to the castle on the 15^th of June.

The following particulars are related concerning Secretary Murray. Upon information, [from a herd of Kilbucco’s], that Mr. Murray had dined at Kilbucco on Friday June 27^th, and had that night gone to the house of Mr. Hunter of Polmood, who married Mr. Murray’s sister, John Smith, Serjeant in St George’s dragoons, and seven private men, then under his command at Broughton, Mr. Murray’s seat, was ordered thither with a guide, and at three o’clock on Saturday morning he seized Mr. Murray in the house of Polmood. He was carried to Edinburgh by the same party, and committed dole prisoner to the castle about twelve o’clock on Saturday night by order of the Lord Justice Clerk.

Mr. Murray, upon his examination, declared, that the pretender’s son, with Sullivan and O’Neil, both Irish, and no other person in company, did, about four days after the battle of Culloden, go off from Moidart in an open boat, in order to get on board a ship; but that he himself being at that time indisposed, was not able to go with them; that he had been mostly with Lochiel and his uncle Major Kennedy, and his brother, in a starving way, lying on the side of hills all day, and travelling or wandering all the night, with scouts at a mile or half a mile’s distance, never daring to stay two nights in one place; that Lochiel was very ill wounded in the heel, and obliged to use a horse; that he himself, unable to bear fatigue and want any longer, crossed the hill, without a servant, and came by Monteith to the place where he was taken. G.

Lord Lovat was apprehended by a detachment of the garrison of Fort William, commanded by Captain Millar, which the Duke sent on board the Furnace and Terror sloops, to make descents on the coasts of Knoidart and Arisaig. In.one of those descents they got intelligence of his Lordship, and, after three days search, had the good fortune to find him in a hollow tree. G.—He was brought in to the camp at Fort Augustus on Sunday the 15^th of June, on a horse-litter, and about 50 more prisoners; among whom was Hugh Fraser his Secretary, his cook, a young girl, and four Lancashire men. M.— The following has been published as a letter from his Lordship to the Duke, dated at Fort William, June 12^th.

SIR,

This letter is most humbly addressed to your Royal Highness by the very unfortunate Simon Lord Fraser of Lovat. I durst not presume to solicit or petition your Royal Highness for any favour, if it was not well known to the best people in this country attached to the government, such as the Lord President, &c. and by those that frequented the court at that time, that I did more essential service to your Royal family, in suppressing the great rebellion in the year 1715, with the hazard of my life, and the loss of my only brother, than any of my rank in Scotland: for which I had three letters of thanks from my Royal master, by hands of the Earl of Stanhope, then Secretary of State; in which his Majesty strongly promised to give me such marks of his favour, as would oblige all the country to be faithful to him. Therefore the gracious King was as good as his word to me; for as soon as I arrived at court, and was introduced to the King by the late Duke of Argyll, I came by degrees to be as great a favourite as any Scotsman about the court: and I often carried your Royal Highness in my arms, in the path of Kensington and Hampton-court, to hold you up to your Royal grandfather, that he might embrace you; for he was very fond of you and of the young princesses. Now, Sir, all that I have to say in my present circumstances is, that your Royal Highness will be pleased to extend your goodness towards me, in a general and compassionate manner, in my present deplorable situation; and if I have the honour to kiss your Royal Highness’s hand, I will easily demonstrate to you, that I can do more service to the King and government, than the destroying a hundred such old and very infirm men like me, past seventy, without the least use of my hands, legs, or knees, can be of advantage in any shape to the government.

Your Royal father, our present sovereign, was very kind to me in the year 1715. I presented, on my knees, to your Majesty, a petition in favour of the Laird of Macintosh, to obtain a protection for him; which he most graciously granted me; and he gave it to Charles Cathcart, then Groom of the Bed-chamber, and ordered him to deliver it into my hands, that I might give it to the Laird of Macintosh. This was but one testimony of several marks of goodness his Majesty was pleased to bestow on me, while the King was at Hanover; and I hope I shall see that the same compassionate blood runs in your Royal Highness’s veins.

Major-General Campbell told me, that he had the honour to acquaint your Royal Highness, that he was sending me to Fort William, and that be begged of your Royal Highness to order a litter to be made for me, to carry me to Fort Augustus, as I am in such a condition that I am not able to stand, walk, or ride. I am, in the utmost submission and most profound respect,

SIR,
Your Royal Highness’s most obedient and most faithful humble servant,

Lovat.

A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanours from the Earliest Period to the Year 1783

Compiled by T. B. Howell, Esq. F.R.S. F.S.A.

1816

Vol. XVIII

[Column 857]

520. Proceedings against Æneas Macdonald alias Angus Macdonald, for High Treason, at St. Margaret’s-hill, Southwark, December 10, and at the Court of King’s bench, Easter Term 21 George II, a. d. 1747 [Foster’s Crown Law.]

In the year 1747, a bill of indictment was found against him under the special commission in Surrey for the share he had in the late rebellion. The indictment ran in the same form as those against the other prisoners, without any averment that he was in custody before the 1st of January 1746-7. But the counsel for the crown were aware of the exception taken in the case of Mr. Townley and others, and that since the whole proceeding against the prisoner was subsequent to January 1746-7, the answer then given would not serve the present case. That bill was therefore withdrawn before the prisoner pleaded to it: And a new bill, concluding with an averment that he was apprehended and in custody before the 1st of January 1746-7 was preferred and found against him. On that bill he was [*858] arraigned in July 1747, and his trial came on the 10th of December following.

The overt acts charged in the indictment were sufficiently proved. And also that the prisoner was apprehended and in custody before the 1st of January 1746-7.

The counsel for the prisoner insisted that he was born in the dominions of the French king, and on this point they put his defence.

But apprehending that the weight of the evidence might be against them, as indeed it was, with regard to the place of the prisoner’s birth, they endeavoured to captivate the jury and bystanders, by representing the great hardship of a prosecution of this kind against a person, who, admitting him to be a native of Great Britain, had received his education from his early infancy in France; and had spent his riper years in a profitable employment in that kingdom, where all his hopes entered. And speaking of the doctrine of natural allegiance, [*859] they represented it as a slavish principle, not likely to prevail in these times; especially as it seemed to derogate from the principles of the Revolution.

Here the Court interposed, and declared, that the mentioning the case of the Revolution as a case any way similar to that of the prisoner, supposing him to have been born in Great Britain, can serve no purpose but to bring an odium on that great and glorious transaction. It never was doubted that a subject born, taking a commission from a foreign prince, and committing high treason, may be punished as a subject for that treason, notwithstanding his foreign commission. (Dyer, 298. 300. 1 Hale 68. 96.) It was so ruled in doctor Storey’s case. And that case was never yet denied to be law. It is not in the power of any private subject to shake off his allegiance, and to transfer it to a foreign prince by naturalizing or employing a subject of Great Britain to dissolve the bond of allegiance between that subject and the crown.

However, as the prisoner’s counsel had mentioned his French commission as a circumstance tending in their opinion to prove his birth in France, the Court permitted it to be read, the attorney general consenting. It was dated the 1st of June 1745, and appointed the prisoner commissary of the troops of France, which were then intended to embark for Scotland.

The Court, with the consent of the counsel [*860] for the crown, permitted the cartel between France and Great Britain for the exchange or ransom of prisoners likewise to be read. And observed, that as it relateth barely to the exchange or ransom of prisoners of war, it can never extend to the case of the prisoner at the bar, supposing him to be a subject born. Because by the laws of all nations, subjects taken in arms against their lawful prince, are not considered as prisoners of war, but as rebels; and are liable to the punishments ordinarily inflicted on rebels.

Lord chief justice Lee in his direction to the jury, told them that the overt acts laid in the indictment being fully proved, and not denied by the prisoner, or rather admitted by his defence, the only fact they had to try was whether he was a native of Great Britain? If so, he must be found guilty. And as to that point, he said the presumption in all cases of this kind is against the prisoner, and the proof of his birth out of the king’s dominions where the prisoner putteth his defence on that issue, lieth upon him. But whether the evidence that had been given in the present case (which he summed up very minutely) did or did not amount to such proof he left to their consideration.

The jury found him Guilty, but recommended him to mercy. He received sentence of death as in cases of high treason; but was afterwards pardoned upon the conditions mentioned afterwards.

Macdonald at the suit of Ramsay.

While Mr. Macdonald lay under sentence of death, a creditor of his, - Ramsey, obtained leave from my lord chief justice at his chambers to charge him in custody of the sheriff, in an action for a considerable sum of money; and accordingly he was so charged.

In Easter-term, the 21st of the king, Mr. Attorney General acquainted the Court, that his majesty had given orders for preparing a pardon for Mr. Macdonald to pass the great seal, upon condition of his retiring out of his majesty’s dominions, and continuing abroad during his life. And that one of the secretaries of state had sent his warrant to the keeper of the New Prison to deliver Mr. Macdonald into the custody of a messenger; but that the keeper refused to obey this warrant, alleging, that as his prisoner stood charged in an action at the suit of Mr. Ramsay, he could not deliver him into the custody of a messenger [*861] 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.

He was supported in this motion by Sir John Strange and the Solicitor General. It was said by Mr. Attorney, but not strongly insisted on, that a person under no attainder is civiliter mortus; his person and estate are absolutely at the disposal of the crown; and consequently he is not liable to civil suits. And to this purpose be 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 Crown agreed, that the later resolutions have been, and the law hath been long settled, that an attained 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 in consideration in actions brought by other persons against that very man (Co. Ent. 246 a. b. Cro. Eliz. 516, Co. Ent. 248. 2 And. 38. Moot, 753. 3 Inst. 215,) and was ruled quite otherwise.

The point chiefly insisted upon 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. 157 2.

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 that 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 [*862] 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 attainder is not absolutely at the disposal of the crown. It is so for the ends of public justice, and for no other purpose. The king may order execution to be done upon him, according to law, notwithstanding he may be charged in custody at the suit of creditors But till execution is done, his creditors have an interest in 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 consanguinuity, 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, 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 panel, and adjourned to the 14th, On that day his counsel insisted that a new pannel 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 [*863] 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 had 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 [*864] 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 chiefs and three senior judges.

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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.

See this form in Townley’s Case, p. 330, of this Volume.

See it in this Collection, vol. 1, p. 1087.

As to this, see vol. 5, pp. 504, 507, 508.

“As to the forum originis. Thus far the circumstance of birth within the realm of Scotland, is a material consideration, that it grounds a jurisdiction over any one, for the crime of treason against this his native land and lawful sovereign; from whom he can never withdraw that primitive and intrinsic allegiance, which he contracted in his infancy, through the nurture and guardianship of the British laws and government, in that weak and helpless season of life. If, therefore, a Scotsman shall enter into the service of any foreign power which is at war with Britain, and be taken in the field, whether in or out of this realm; he shall not be treated as a prisoner of war according to his commission, or like the native subjects of that power, but as a criminal and a traitor, and one who is liable to the pains of treason, as well with respect to his property, if he have any in Scotland, as his person. Thus in 1665, on occasion of the rupture with Holland, colonel John Kirkpatrick, and eleven persons more, all of them soldiers of fortune, and officers of rank in the service of the United Provinces, suffered outlawry as traitors, for continuing to bear arms in that service, and acknowledging the States by a new oath, as their sovereign and master. So likewise in later times, Angus Mac Donald had sentence as a traitor for acting under a French com[*860]mission, in 1745; though he had been carried to France in his infancy, and had afterwards continued to reside in that country, to which all his possessions and prospects attached him.” Hume’s Comment. p. 78.

See, in this Collection, vol. 14, p. 994, and East’s Pleas of the Crown, c. 2 § 3, there referred to.

“Mr. Macdonald was pardoned upon very equitable and easy terms.” See, vol. 5, p. 507; and Foster as there cited.

N.B. The rule in Foxworthy’s Case seems to have been over-hasty, 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.

See Peter Cook’s Case, vol. 13, pp. 311, 317-329.