tice of the peace, in the execution of his office, that he is a rogue;"" that "at common law a factor, although empowered to sell, cannot pledge the goods consigned to his care;" that "if a ship, insured in time of war against all perils except capture, sails on the voyage and is never heard of, it shall be presumed that she foundered at sea, so as to make the underwriters liable;" that "an action lies for keeping a dog, known by his master to be accustomed to bite men, whereby the plaintiff was bitten, although the damage arose from the plaintiff having accidentally trod upon the dog's toes;" and "that a pardon being pleaded to an indictment for murder, after a special verdict found, the prisoner is entitled to be discharged without finding sureties to abide an appeal by the heir of the deceased."

Lord Chief Justice Lee presided at the special commission which sat for the trial of those who had taken part in the rebellion of 1745. Under an act of parliament which authorized the Government to prosecute them in any county in England, a Court, attended by all the Judges, assembled at St. Margaret's Hill, in the borough of Southwark. Most of those who were to be tried had been engaged in the siege of Carlisle, and had surrendered to the Duke of Cumberland, The charge to the grand jury was given by Lee, who fully explained to them how they, in Surrey, came to have cognizance of offenses committed in a distant part of the kingdom, and laid down to them very distinctly the doctrine of compassing the King's death and of levying war against him.

The indictments found against the Earls of Kilmarnock and Cromartie, and Lord Balmerino, were immediately removed by certiorari to the House of Peers, -but those against commoners were proceeded with before Surrey juries as expeditiously as the forms of law. would permit.

The first case taken was that of Colonel Francis Townley, the representative of an ancient family in Lancashire, who, entering the French service, had dis

Kent v. Pocock, 2 Str. 1168. 3 Green v. Brown, ib. 1199. • Rex v. Chetwynd, 18 St. Tr. 289.

Patterson v. Tash, ib. 1178. • Smith v. Polack, ib. 1264.

tinguished himself much at the siege of Philipsburgh, and on various other occasions, and who still held a com. mission from the King of France when he joined the army of the Pretender. He set up two defenses. The first was, that he ought to be treated as a prisoner of war and not as a traitor, for he had acted under the authority of a foreign sovereign, who was making open war against the Crown of Great Britain, therefore, instead of being executed for high treason, he was entitled to be exchanged under the cartel lately established between the two countries, according to the usages of honorable hostilities. 2dly. At all events, if he were still liable to be treated as an English subject, he claimed the benefit of the articles of the capitulation of Carlisle, signed by the Duke of Cumberland, engaging that, on the surrender of the city, the prisoners taken in arms "shall not be put to the sword, but be reserved for the King's pleasure,"-amounting, as he contended, to a solemn pledge that their lives should be spared, and, therefore, barring any capital proceedings against them.

Lee, C. F.: "Neither defense can avail:-1. The prisoner is a native-born subject of this realm, and cannot free himself from the allegiance which he owes to his own sovereign by entering into the service of a foreign state. Our law says, Nemo potest exuere patriam. The very fact relied upon that the prisoner is in the service of France, a country with which we are now at war, is an adherence to the King's enemies, and an overt act of high treason. 2. The second defense we could give no effect to here, and it could only be made the foundation of an appeal to the Crown to withdraw a prosecution which ought not to have been instituted; but, as it has been brought forward, I think I am bound to say that, in my opinion, there is no foundation for it in reason, justice, or honor. The only fair meaning of the words relied upon is, that the prisoners should not immediately be put to death by martial law as rebels taken in arms, but should have the benefit of a fair trial according to our humane forms of procedure before the Judges of the land."'

A mighty small benefit, certainly, as, if tried for treason they could not. have the remotest chance of escape, and it would have been better for them

The prisoner was, of course, found guilty; and, to show the customs and feelings of Englishmen in the middle of the last century, I add a short contempora neous account of his execution, which was read then without any wonder or any disapprobation: "After he had hung six minutes he was cut down, and, having life in him as he lay upon the block, to be quartered, the executioner gave him several blows on his breast, which not having the effect designed, he immediately cut his throat; after which he took his head off; then ripped him open, and took out his bowels and heart, and threw them into a fire, which consumed them; then he slashed his four quarters, and put them with the head into a coffin, and they were carried to the new jail in Southark, where they were deposited till August 2, when his head was put upon Temple Bar, and his body and limbs suffered to be buried." Chief Justice Lee, and five other Judges, in the discharge of their duty signed the warrant by which these revolting cruelties were authorized.' The next trial in which any question of law arose was that of Alexander McGrowther, a lieutenant in the Duke of Perth's regiment, which had formed a part of the Pretender's army. The prisoner stated, by way of defense, "that he was a vassal of the Duke of Perth; that he was bound to obey the orders of his superior; that, nevertheless, having refused to do so, the Duke of Perth had threatened to burn his house to the ground, and to lay waste all that belonged to him, if he would not enter into the rebellion." He accordingly called four witnesses, who deposed to those threats, adding "that the Duke's men had begun to bind him with cords before he enlisted; that he yielded, to save himself from ruin; and that by the custom of the country the vassal is considered bound to execute the orders of his superior, whatever they may be."

Lee, C. F.: "We cannot hear of any such custom. The King's subjects owe allegiance to the King alone, and are bound only to obey the law. There is not, nor ever was, any tenure which obliges tenants to follow

to have been shot, than hanged, emboweled while yet alive, beheaded, and quartered.

118 St. Tr. 329-352.

their lords into rebellion. And as to the matter of force, the fear of having houses burnt or goods spoiled, or a slight injury to the person, is no excuse in the eye of the law for joining and marching with rebels. The only force that excuses is, a force leading to 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 defense, to show an actual overruling force, and that he quitted the service of the rebels as soon as he could,—according to the rule laid down in Oldcastle's Case, 1 Hale, 50, that the pris oner joined pro timore mortis et recessit quam cito potuit. But here the prisoner pretends to prove force only on the 8th of August, and he continued with the rebels and bore a commission in their army till the surrender of Carlisle on the 30th of December.

The jury, without going from the bar, found a verdict of guilty. This prisoner, however, was reprieved, and afterwards pardoned.'

Alexander Kinloch and Charles Kinloch having pleaded not guilty,-after their trial upon this plea had begun, insisted that they were entitled to be acquitted, because they were native-born Scotchmen, and by the articles of union between Scotland and England, Scotland was to retain her own laws, so that they ought to be tried by the Court of Justiciary in Scotland. The Judges ruled that this objection, if well founded, could only be taken advantage of by plea in abatement to the jurisdiction of the Court; and, in favor of life, they allowed the jury to be discharged, the plea of not guilty to be withdrawn, and the plea in abatement to be substituted for it. To this the Attorney General demurred, and the point was argued at great length:

Lee, C. F.: "We are all of opinion that the birth, residence and apprehension of the prisoners in Scotland are

Foster says, "Many of the Scotch prisoners made the like defense, and the same directions in point of law were given. The matter of fact, whether force or no force and how long that force continued, with every circumstance tending to show the practicability or impracticability of an escape, was left to the jury on the whole evidence." (Foster, ch. ii. s. 8; East's Pleas of the Crown, ch. ii. s. 15; 18 St. Tr. 391-394.) See likewise the trial of Fergus McIvor and Evan Dhu McCombick, which took place at Carlisle a few weeks after. (3 Waverly, 300.)

facts perfectly immaterial in the present case. So it would have been even at common law; for at common law every man is triable, not where he was born, resided, or was apprehended, but where the offense is committed. Moreover we are now sitting under a special act of parliament which gives us jurisdiction in all treasons without any distinction of persons or localities."

The plea in abatement being overruled, the prisoners again pleaded not guilty: and, being tried by another jury, were convicted on clear evidence, for they had taken a very active part in the Pretender's invasion of England. But they moved, in arrest of judgment, that the conviction was unlawful, as the Court had no power, even with their consent, and at their request, to discharge the first jury; and that being once given in charge to that jury, they could not lawfully be tried by any other. When the question was argued before the twelve Judges, the counsel for the prisoners gave instances in which the assumed power of discharging the jury, after the commencement of the trial, had been abused to the oppression of the subject; and relied upon a dictum of Lord Holt, that "in criminal cases a juror cannot be withdrawn but by consent, and in capital cases it cannot be done even with consent."

Lee, C.J.: "With the exception of my brother Wright, we are all of opinion that the conviction is regular, and that sentence of death must be passed upon the prisoners. The rule that a trial once begun must proceed to a conclusion before the same jury, cannot bind in cases where it would be productive of manifest injustice or great hardship to the prisoner. In the present case, the objection urged by the prisoners of our want of jurisdiction might have turned out to have been well founded; but it could not have been taken advantage of under the plea of not guilty. Liberty was therefore given to them to withdraw that plea. When withdrawn, the jury had no issue to try, and must therefore of course be discharged. Consequently they have no right to complain of that which was a necessary consequence of an indulgence shown them by the Court. The authority of Lord Holt is high; but Lord Hale says, ' In case a man in a frensy happened by some oversight to plead