A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors 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[1] 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, he 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 That bill was therefore withdrawn before the prisoner pleaded to it: And a new bill, concluding with an averment that he was apprehended and in custody before the 1st of January 1746-7 was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[2]. 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.[3]

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,[4] 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[5] 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 ob ey 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 thee 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 he 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.[6]

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 t he 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 Revels 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,[7] 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 t he 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.

 

-----

 

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.