i\ V) THE TRIAL O F MUNGO CAMPBELL, BEFORE THE HIGH COURT' of JUSTICIARY in Scotland, Extracted from the Records of the Court, THE SECOND EDITION. LONDON: Printed for D. WILSON and G. NICOL, in the Strand; and ROBINSON and ROBERTS, in Pater-nofler-R.ow. MDCCLXX. THE T R I A L O F MUNGO CAMPBELL, For the MURDER of ALEXANDER Earl of EGLINTOUN. Curia Jujiiciaria S. D. N. Regis tent a In nova SeJflonisDomo deHLdinburghdecimoofta'vo die mm- Jis Decembris millejlmo feptingentefimo fexagefimo nonoy per Honorabiles r olros Thomam Miller de Barjkimming dominumjujliciarum clericum, A- lexandrum Bofwell de Auchinleck, 'Jacobum Fer- gufon -de Pitfoitr, Georgium Brown de Coalfton, & Robertu??i Bruce de Kennet dominos commif- fanarios jujliciaricr ditt. S. D. AT. Regis. Curia lepitime aiRrmata. o */ INT RAN. MUNGO CAMPBELL, excife-ofHcer at Saltcoats in the county of Air, and pre- fcnt prifoner in the Tolbooth of Edin- burgh, Pannel, Indifted and accufed at the inftance of Archibald earl of Eglintoun, brother-german to the de- ceafed Alexander earl of Eglintoun, with con- courfe, and alfo at the inftance of James Mont- gomery, Efq. his Majefty's Advocate for his B Ma- i 2051171 C * 3 Majefty's intereft, for the crime of murder, in manner mentioned in the criminal indictment raifed againft him thereanent, bearing, THAT- where, by the law of God, and the laws of this and every other well governed realm, MURDER, or the felonioufly bereaving any of his Majefty's fubje&s of their lives, is a tnoft atrocious crime, and feverely punifhable; YET TRUE IT IS, and of verity, that you, the faid JMungo Campbell, have prefumed to commit, and are guilty, ator, or art and part of the faid crime; IN SO FAR AS the deceafed Alexander earl of Eglintoun having, upon the twenty-fourth day of October, in this prefent year one thoufand feven hundred and fixty-nine, or upon one or other of the days of that month, or of the month of September preceding, or November following, gone out from his houfe of Eglintoun, in the county of Air, in his coach, to look at fome of his grounds, and being told by one of his fervants, when upon the road from Saltcoats to Southennan, within the parifli of Ardroflan, and faid county of Air, that he obferved two perfons, one of them with a gun, at a fmall diftance, upon his lordfhip's ground of Ardroflan, the faid deceafed earl (who, by an advertifement in the news-papers, had forbid all unqualified perfons to kill game within his eftate) came out of his coach, unarmed, and mounted a horfe which was led by his fervant, and, leaving in his coach an unloaded gun, he rode towards the two perfons, who, in the mean time, went off the earl's grounds of ArdroflTan Into the adjacent fands, and he having come near to the two perfons on the faid fands, and difcovering the one wi deliver your gun ; and by ftriking your foot againft a fmall ftone, having fallen upon your back when retiring and keep'nr your gun pointed at lord Eglintoun, as above defcribed, the muzzle of the gun came thereby to be altered in the direction from lord Eglintoun, and to be pointed near ftraight upwards; and lord Eglintoun, who was only diftant from you two or three yards, having flopped or flood ftill upon your falling, you, as foon as you could, recovered yourfelf, and, refting upon your arm or elbow, aimed or pointed your gun to the faid Alexander earl of Eglintoun, and wickedly and felonioufly fired it at him, then ftanding unarmed, fmiling at your accidental fall, and by the fhot he was wounded in the belly in a dreadful manner, the whole lead-fhot in the gun having been thrown into his bowels, of which wound the faid Alexander earl of Eglintoun died that night about twelve o'clock. And you the faid Mungo Campbell, after perpe- trating fo cruel, wicked, and barbarous a crime, did immedi- ately run to one of lord Eglintoun's fervants who had brought his gun from his coach, and who was ftanding at fome diftance, and endeavoured to wreft the gun from him, but was prevented by the affiftance of another fervant ; and when the two fervants were engaged with you defending the gun, and endeavouring to fecure you, the earl, who was then fitting on the ground, called to the fervants to u fecure the " man, for he had fhot him, but not to ufe him ill," or ufed words to that purpofs and effect ; and upon your being brought near to lord Eglintoun, he faid to yourfelf, " Camp- *' bell, I would not have (hot you." And you, the faid Mungo Campbell, when carrying from the place where you committed the foreiaid crime, to Saltcoats and Irvine, did acknowledge to fundry perfons, that you had wilfully and intentionally fhot the faid Alexander eail of Eglintoun : AND the faid Alexander earl of Eglintoun, when within two or three hours of his death, in giving an account to John Moor, furgeon in Glafgo,w, who was called to give what affiftance he could in the way of his profeffion, of what had pafTed between you and him, did in fubfiftance fay, that you, the faid Mungo Campbell, did take an aim at him, and fhot him wi'fully, and which account of the matter was given by the laid Alexander earl of Eglintoun, v, r !th the greateft B 2 calmnefs [ 4 I calmnefs and compofure; and you, the 'faid Mungo Camp- bell, having been brought before Charles Hamilton of Craighlaw, Efquire, a juftice of peace of the county of Air, upon the faid twenty- fourth day of October one thoufand feven hundred and fixty-nine; and thereafter before William Duff, Efquire, Sheriff Depute of the county of Air, upon the twenty-feventh day of the faid month of October, you did voluntarily emit two declarations, which were fubfcribed by you, and will be ufed in evidence againft you upon your trial : and, for that purpofe, both declarations {hall be lodged in the hands of the clerk of the court of jufticiary, before which you are to be tried, that you may fee the fame : AT LEAST, at the time and place above defcribed, the faid Alexander earl of Eglintoun was felonioufly murde/ed, or bereaved of his life, by a wound he received from the fhot of a gun, and of which wound he died in about twelve hours, or fome fhort fpace thereafter ; and you, the faid Mungo Campbell, was ator, or art and part of the faid murder. ALL WHICH, or part thereof, being found proven by the verdift of an affize, before the lord juftice general, juftice clerk, and commiflioners of jufticiary, you ought to be punifiied with the pains of law, to the terror of others to commit the like in time coming. JA. MONTGOMERY. After reading the indictment, the court obferved, That the indictment fets forth, that the deceafed earl received the fhot of which he died upon the fands adjacent to the grounds of Ardroflan ; and defired the counfel for the profecutors to explain if they meant the deceafed earl received his wound upon the fands of the fea, and within the flood-mark. The lord-advocate admits that the deceafed earl received the fhot of which he died upon the fands of the fea, and within the flood-mark. (Signed) JA. MONTGOMERY. "The court thereupon defired to hear counfel on both fides upon this preliminary queftion, Whether or not the court has jurifdiction to try this indictment in the firft in- ftance ? Pro r 5 3 Procurators for the Profecuiors. Procurators for the Panntl. James Montgomery, Efq. his Mr. John Dalrymple, adv. Majefty's advocate, Mr. David Rae, adv. Mr. Henry Dundas, hisMajef- Mr. John M'Laurin, adv. ty's folicitor, Mr Robert Cullen, adv. Mr. Alexander Lockharr, adv. Mr. Robert M'Queen, adv. Mr. Hay Campbell, adv. 'Mr. Alexander Wright, adv. Mr. Andrew Crofbie, adv. Mr. Alexander Gordon, adv. Mr. Walter Campbell, adv. Mr. Alexander Fergufon, adv. Parties procurators being heard at great length upon the faid preliminary queftion, the lord-juftice, clerk, and lords com- miffioners of judiciary fuperfede adviling the debate till Friday next the twenty-fecond inftant, at three o'clock in the afternoon in this place ; appoint parties procurators to make up minutes thereof, betwixt this and Thurfday next at twelve o'clock at noon, to be ingrofled in the record ; continue the diet againft the faid Mungo Campbell, pannel, and whole other diets of court, till the faid twenty-fecond inftant, at the hour above-mentioned; ordain parties, witneffes^ aflizers, and all concerned, then to attend, each under the pains of law ; and the pannel in^ the mean time to be carried back to prifon. Mr. David Rae for the pannel reprefented, That this court has here no jurifdidtion, at leaft in the firft inftance, but that the fame does belong to the high court of admiralty. In the infancy of all ftates and governments jurifdiclion has been but imperfectly fettled, and its conftitution has only ripened by degrees ; but from the earlieft times, and indeed from the very nature of the thing, it has been territorial. The firft judges were probably appointed for trying caufes of all kinds, but were certainly circumfcribed to a territory, as their authority could reach no further than the bounds of that power from which fuch authority was derived. After- wards as nations came to be more civilized, and fyftems of laws and governments to be formed, it was found convenient to diftribute jurifdidtion among different hands, under the fame head or government. Hence has arifen the diftin&ion between civil and criminal courts, and between many others that no.w obtain in different countries j but to all of thefe has r 6 ] has ftill been affigned a particular territory, within or over which fuch fpecies of jurifdiclion may be exercifed, and not beyond it. The feudal laws and ufages which have been received to a great degree in the country do more efpecially limit juiifdiction to particular territories, as witnefs the ju- rifdtdtion of the barons, of lords of regality, of ftieriffs, &c. Diftin6r. from thefe, though eftablilhed on the fame prin- ciples, has been the jurifdidlion of admiral, or courts of admiralty. While commerce and maritime affairs were little attended to, the eftablifhment of fuch a jurifdi&ion might be overlooked ; but when thefe matters began to be of more importance, it feems to have occurred to the government of every European (late bordering on the fea, that a feparate jurifdid~tion ftiould be eftablifhed for the cogniz-ance of fuch affairs as either efpecially related thereto, or as occurred either upon the fea or fliores thereof. Hence the high admiral was eftabliflied in France many centuries ago, with a very ample jurifdiclion ; and upon the fame footing fuch an of- ficer, with equivalent powers, was very early eftabliflied in Scotland. What was the precife cera of that eftablifliment does not with certainty appear, but it is proved by our fta- tutes that it happened before the reign of James V. and that befides the cognizance of civil caufes of a maritime nature, the high admiral of Scotland was vefted with a criminal jurifdiction within a certain territory, that is to fay, he was appointed the king's juftice-general, not only upon the high leas, but alfo in ports and harbours, and in rivers be- low the firft bridges, and on the fea-fhores as far as the higheft tide flows, or below the flood-mark, whereby he had undoubted right to cognoce and try all crimes committed within thefe bounds, as much as the juftice-court or high court of judiciary had to try crimes committed in the in- ternal part of the kingdom. That fuch a jurifdiction and territory was and is vefted in the admiral cannot be denied, and appears not only from the act 1681, to be afterwards mentioned, but from many authorities long prior to that flatute, more particularly Welwood, in his Abridgment of the Sea-laws, dees, in chap. 2d of his treatife, lay it down as tht n law, that the admiral of Scotland had the fo!e cri- minal jurifdiction within the aforefaid territory, and parti- cularly mentions his right to try " (hedders of other men's *' blood on fea or any port or river below the firft bridge, * &c." Sir Thomas Craig, lib. iii. tit, 7. 10. has thefe words, *' poftquam vero in mari dominari cceperunt, admi- ** ralii oflicium introductum eft cujus de rebus fivi deliclis tc in mari aut in littcre, aut etiam portu geftis aut com- snifis I 7 1 * mifis juridicVio erat.'' Sir George Mackenzie likewife, in his Treatife on the Criminal Law, publifhed before the at 1681, in his title of the admiral's jnrifdi&ion, does exprefsly fay, " That the lord high admiral and his deputies are, by " the laws of all nations, judges competent to all crimes *' committed on fea ; and by an unprinted ftatute with us, * c the admiral is competent in all controverfies, adVions, " and quarrels concerning crimes, faults, and trefpafles '* upon fea, or Jo far as the fame flows and ebbs:" and he quotes not only the authority of Welwood, but of Prefident Balfour in his Pra<5ticks, title Admiral, and of another Scotf- man named King, who wrote upon this fubje&. Thefe authorities fhow, that at leaft two centuries ago, the admi- ral's jurifdidlion in crimes was with us extended to the flood-mark; and what clears and compleats the evidence on this head is the i6th aft, 1681, pafFed in the third parlia- ment of king Charles II. which ftatutes and declares, " That c< the faid high-admiral, as he is his majefty's lieutenant and *' juftice-general upon the feas, and in all ports, harbours, " and creeks of the fame, and upon frefh waters or na- " vigable rivers below the firft bridges, or within the fiaod- " mar fa, ff ar as the fame does or can at any time extend \ " So the faid high admiral hath the fole priviledge and ju- " rifdiftion in all maritime and fea- faring caufes, foreign " and domeftick, whether civil or criminal, whatfoever, " within this realm, and over all perfons as they arc *' concerned in the fame ; and prohibits and difcharges all tc other judges to meddle with the decifion of any of the ** faid caufes in the firft inftance, except the great admiral " and his deputes allenarly." And this ample jurifdi&ion appears from the records of the admiralty court to have been exercifed for ages paft, without challenge, under the eye of this and the other fupreme courts of the country. Crimes of every kind, and particularly murder and man- flaughter, committed within the admiral's territory, have been openly tried by him ; and his fentences, as well ca- pital as others, duly put in execution. And as by the fame ftatute 1 68 1, as well as by former ftatutes, this court of admiralty is exprefsly declared " to be a fovereign judi- *' cature in itfelf, and of its own nature to import fum- " mary execution ;" fo it was a doubt whether its de- crees in criminal matters, were even fubjeft to the review of this high court of jufticiary, till the cafe of Lsng and Macadam^ in the year 1735, when this cpurt received the fcntence of the admiral, in a criminal caufe, as flowing from the fame principles upon which the court of feflion 6 are [ 8 J are by the faid act 1681, impowered to review his proceed- ings in civil caufes. But down to this day no lawyer ever doubted that the court of admiralty flood vefted with a competent jurifdi&ion to try crimes committed within his territory, or within the flood-mark, in the "firft inftance. And with regard to the nature of that jurifdiclion, or whe- ther the fame is privative or exclufive of other judges, in the firft inftance, or if it is only cumulative with the ju- rifdicSlion of their courts, the point is no lefs clearly efta- blifhed, that the admiral's jurifdidion is privative, both by principles and authorities. Jurifdi&ion affigned withjn a territory does of its nature import that it is privative or exclufive in the firft inftance, as otherwife there could be no ufe or meaning in afligning a territory, and inextricable confufion would follow. Hence the jurifdiclion of lords of regality, &c. was always priva- tive within their bounds fo much, that they held, and for many ages exercifed a power of re-pleading criminals even from this court ; and where there are different courts com- petent to the fame kind of caufes, there is no example of the one's incrcaching upon the territory of the other, in the firfl injlance) without a fpecial grant from the crown, or ftatu'e, to that effect } none of which occur in the pre- fent cafe. The nature of the admiral's jurifdicHon in this refpecl: may a!fo be illuftrated from that of the admiralty of France, from which it has in all probability been co pied by the kings of Scotland, when in great correfpon- dence with that country. Cleariack, in his treatife inti- tled Us & Coujlumes de la Mer^ a book of great authority, and which was publifhed in the laft century, does, in treating of the jurifdidlion of the marine in art. 39, p. 459, lay it down as a rule, that to the admiral and his officers belongs the cognizance, jurifdi&ion, and decifion of all crimes, delicts, and malafices " Survenant fur mer & pas *' les greves d'icelie, laquelle connoigfance eft interdite a " tous autres juges:" and in confirmation of this, he re- fers to the ord on an ces of the French kings in 1543, 1 5$4* &c. Here it will be obferved, that the cognizance of crimes falling within the admiral's jufifdiftion is exprefly inter- dicted and forbid to all other judges : and the fame author, in pase 422, holds it as a rule that the place where a crime has been committed, fubje<5ts the delinquent to the jurifdic- tion of that place, which is exactly conformable to our opinion of criminal jurifdi&ion. In the like manner IVel- ivood, in the paflages already referred to, after mentioning the admiral's jurifdiclion in caufus civil and criminal, adds, " That i 9 3 *' That no pther judge of any degree, at leaft in ocof- k< land, may meddle therewith, but only by way of affift- *' ancc ; and that by commiffion and in difficile caufes, a* *' was found in rhe a&ion intentcd by Ahfotnc de la Tour, *' and one Chriftian Marteis, 6th Nov. anno 1542:" and For proof thereof, he re fas to the records of Scotland, torn. i. C. 555. Further, the great orddnance of Lewis XIV. of France, concerning the marine, contains a particular chap ter on the competency of the judges of the admiralty, and which begins with thefe words, *' Les juges de I'admiraute " cenncitront frjvaiivantnt a tons aurres, &c." And then goes on to enumerate the caufes in which the admiral fhouid have a privative jurifdiclion ; and, inter alia, the article jorh is in thefe words, *' Connoiftront, pareillement des pira- 46 teries & des pillages & defertions des equipages, & generale- * l jment de tous crimes & delits commis fur la mer j fes ports " Havres & Rivages." This ordonance bears date the 24tK of Augurt, 1681, and immediately thereafter followed our ftatute above-m*ntioned, paflt-d in September 1681, which, though fhorter, does evidently proceed on the farne plan, and declares, the admiral court to be a fovereign court ; the admiral to be the king's lieutenant and jnftice general upon the feas, &c. and to have the fole privilege and ju- rifdition in all maritime or Tea-faring caufes, whether civil or criminal, and prohibits all other judges to meddle there- with in the firft inftance. Thefe words of the ftatutfj therefore, cannot leave a doubt, that irj all crimes com- mitted within the admiral's territory, his jufifdi-Sion was in- tended to be privative and exclufive; and accordingly lord Stair, in his Inftituie, book iv. tit. 37. 4. doesexprefly fa}', *' That all actions criminal, committed at fea, or within the " fea-rhark, are proper to be judged by the high-admiral '* of Scotland:" and it is clear, that by the word proper he means, that the jurifd:lion is privative' or'exclufive, as he is there defcribing the proper or privative jurifdi 1681. In ancient times, \vhenthisjurifdiction of admiralty was full eftablifhed, the perfons employed in it feem to have been ignorant of their duty, which occafioned the J57th ad, i2th parl. James VI. limiting the jurifdiclion of admiral to the fame bounds it was in the time of James V. Afterwards the judges of the admiralty became more experienced and refpe&ed ; fo that by another act, being the 1 5th of the 2Oth parl. of James VI. the admiralty was exprefsly declared to be a foveieign judica- iory, upon this narrative or confideration, " that the infuf- *' ficiency, corruption, and defects which were in the de- " putes and members of thefe courts in former times, and " whereby thefe judicatures were not thought worthy of " that favour, is now helped and Well amended." It is not therefore furprifing, that while the admiralty was in this weak ftate, the juftice court fhould have made encroach- ments on its jurifdi&ion - t for the very fame thing happened to r " ] to the juftice court itfdf, as in thofe days, and even down to the time of Sir George Mackenzie, the lords of feflion, as being the more potent and refpectable judicatory, ufed to encroach on the jurifdiclion of the juftice court, by not only advocating criminal caufes, from inferior courts, but even fufpending its fentences,al;hough no fuch power is now pre- tended to be in the fefHon. It likewife appears, that the judges of the admiralty were different, and ufed to call in the juflices to affift them as aiTeffors in difficult caufes, which led thefe jufticesto ufurp upon the admiral's jurifdiclion, and even to take upon them to try fome of his caufes, even fuch as piracy, in their own court -, but thefb were only fo many illegal encroachments, which cannot be regarded, and which have not been repealed fince the al 1681, confirming the admiral court in its juft privileges. For with regard to any cafes that have occurred in this court fince that flatute, none of them do go the length of affording a precedent for this court's trying in the/r/? inftance a crime entirely committed within the admiral's territory. In the cafe of Sir Alexander Anftruther, in the year 1720, the crimes charged Avere the carrying a man by force from a houff, after beating him there, then putting him on board a vcffel, and from thence landing him and carrying him as a prifoner through the country ; whereby it appeared that the crimes charged were begun and terminated Within the jurif- diclion of this court, and which therefore behoved to be com- petent to try them. The like -w;.s the cafe of Paton, and others, tried in the fame year 1720 for fed u ion, riots, and hamefucken, by affaulting people within-t!e territory of this court, then plundering a (Lip of meal, and carrying that meal into the country. In thofe cafes no objection could be to the competfncy of this court, and none was made thereto. In the next cafe of Thomas Gray, in the year 1751, the ob- jeclion was indeed ftated for the pannel in regard that (he forcible marriage was laid as committed by him upon the lands of MulTdburgh, but it was moft juftly repelled, in re- gard not only that it did not appear that the fame happened within the flood-mark, but in refpe that the forcible mar- riage was only a branch of the crimes charged againft him, he being accufed ofa forcible abdu&ioriof' a young woman front Canon-milns to the fands, and of having carried her back from thence to Jock's-lodge, where he attempted, by vio- l^nce, to confummate his pretended marriage : fo that t'ne offences charged were both begun and ended within the territory of this court, which was fufficient to ettablifh the jurifdidtioii in that cafe. And as to the cafe of James John- C ^ C 12 ] fton, and others, who were tried in this court in the year 1756, for a "riot at Pittenweem, it appears that the court doimed of its own jurifdidion ; and therefore heard the counlt'l for the prosecutor in fupport of it, as the counfel for the pannels refuted to make any objection, or fo much as to argue upon the point. Under thefe circumftances, where all the argumentTwas on one fide, the court found that the trial might proceed before them ; but they did fo upon the fame principles as had governed the cafe 6l Gray already mentioned, feeing the indictment did there charge that the crime begun by the pannel, and others, aflembling in a tumultuous manner, with offeniive weapons, horfe.*,, carts, &c. upon the land ; that they then went aboard a fhip lying in the harbour at P.ttenweem ; and having confined the offi- cers of the cudoms, took, out all her cargo, and from, thence carried the ^oods on a board to Leuehars ; u and " difpofed of them as their property, and payed the ex- ** pences of carrying the fame." Here was continued \vrong both begun and ended within the jurifdiclion of this Court ; and where that happens, it is impoffible to divide the cognizance of a crime, and lawyeis hold that the forum may ^>e eftabliflied, ubi crinifn inchoatum efi j and much more fo muft that court have jurifdition within whole territory a crime is both begun and ended. None of thefe cafes therefore do in the leaft affet the prefent, where the whole of the crime charged is admitted by the profecutor to have happened with- in the admiral's territory, and confeq'uently the cnurt can take no cognizsnce of it in the firft inftance, unlefs it has truly a. cumulative jurifdiclion with the admiral in every crime whatever ; for by the lame rule that the court can try 'a murder fiid to have been committed within the flood-mark, |t may try a like crime committed on the high feas at any jjiftance from the fiiore, which was never attempted" to be dpne in any cafe, at leaft fmce the acl: 1681, and which would be totally fubvtrfive of the admiral's jurifdi&ion. Nor is there any ground for a diftinclion between crimes pro- perly maritime, or not maritime, though alike happening within his territory, as if the admiral were privative in the pne and not in the other j or, in other words, that he is pri- vative in fuch crimes as piracy or others relative to fhipping, and not in murder which can be committed at land. Every crime is a maritime crime in the fenfe of the acT: 1681, if it be fuch as car, be committed either at fea, or within flood- mark, which murder, as well as robbery, undoubtedly can be; and it would lead to the moft abfurd confequences, were 4 any C '3 1 any other diflinHon to be received. A deforcement of re- venue officers certainly can be committed at land as well as at fea ; and yet in the cafe of Lamb, in the year 1723, when charged to have been committed on board a fhip, this court feem to have held it as not falling within their jurifdidion, but within that of the admiral j and fo late as the year 1759, when William and Alexander Avens, and other fifhers at Buckie, were tried for boarding a boat in a creek near the town of Findochlie ; amfr there beating and deforcing the cuftom-houfe officers, and carrying the boats and goods to fea, the then lord advocate thought it necefifary to bring the trial before the judge of the admiralty, which it may be prefumed he would not have done had he not been of opinion, notwithftanding the cafe of Pittenweem and others above-mentioned, that fuch a crime, when committed en- tirely within the admiral's territory, would only be tried in the tirft inftance before that judge. Indeed, that no other diftin&ion can take place, but that arifing from the locus de- licit is manifeft from what has been already ftated ; and which is alfo enforced by the principles of the law of England, where for ascertaining what crimes, as well as what contracts fall under the cognizance of the admiral or the courts of common law, no other criterion is fixed but that of the place where the crime or contract had its exiftence ; fo that if the fame was within the admiral's jurifdiHon, the cog- nizance thereof is peculiar to him. This appears from the new abridgement of the law, commonly called Bacon's, but faid to be the work of lord chief baron Gilbert, vol. ift. p. 623, et feq. And fo well was the admiral's jurifdi&ion in crimes committed within his territory held to be eftablifh- ed, that it required an exprefs ftatute, viz. that of the 28tU of Henry Vlll. cap. 13. for authorifing the trial of fuch of- fences by* commiffion according to the rules of the common law, inftead of the civil law, which otherwife takes place in the court of admiralty. That ftatute provides " that all * 4 felonies and robberies, &c. upon the fea, or in any ha- " ven, river, creek, or place where the admiral or admirals " have, or pretend to have, power, authority, or jurifdic- " tion, (hall be enquired, tried, &c. upon commiffions di- ec . reeled to the admiral or admirals, or to his or their deputy * c or deputies, anH f; o r her three or four fubftantia! perfons 11 named by the loid chancellor ;" which clearly fliews that the jurifdi&ion of tne.e crim'es was ftjll kept diftindt from that of the courts of common law. And as we have no fuch fta- tute in Scotland, it fortifies the prefcnt argument, that fe- Jonies committed within the admiral's territory muft be tried before [ 14 ]' before the admiral, where the fame form of trial by jury, and the fame rules of law are obferved, as in this court of jufticiary. It is true, that in England the courts of com- mon law, have cognizance of offences committed upon the fea-fhore or fands, when not covered with water, and even in ports and rivers, when infra corpus comitatis ; but that cannot at all affet the prefent cafe, becaufe the territory of the admiral of England is limited to the high feas, and does not extend to the" fhores, unlefs when covered, with water, nor to any waters within the body of a country ; whereas the jurifdic- tion of the Scots admiral does by exprefs ftatute extend to ports and harbours, and to the fea-fhore as far as the higheft tide flows, whether the fands or fhore below the flood -mark be at the time covered with water or not ; and where his jurifdiclion or territory begins, there the jurifdiclion of this court in the fir ft inftance muft terminate. ILAY CAMPBELL and follicitor DUNDAS for the profecutors anfwered, THAT the prifoner at the bar ftands indited before this high court of jufticiary for the crime of murder com- mitted by him as follows : That on the 24th October laft Alexander earl of Eglintoun having gone to take the air in his coach in the neighbourhood of his own houfe, in the coun- ty of Air, one of his fervants came up to the coach, and in- formed him of two perfons being upon his grounds of Ar- droflan, one of them with a gun ; upon which the earl, who had ftri&ly prohibited, by publick advertifements, all per- fons from fbooting or killing game upon his eftate, mounted on horfeback, rode after, and came up with them, after they had got upon the adjacent fands ; and finding the pri- foner to be the psrfon who carried the gun, the faid earl re- monftrated with him for fo doing, and defired him to deliver up the gun, which the prifoner refufed, and foon after cock- ed the gun, presented and poin-ted it at him, going onwards at the fame time, till at laft the gun was fired, and a mortal wound given to the earl, in the way and manner fet forth in the indictment, of which wound the earl died that fame nighr. This is the fubftance of the charge : and it has further been explained in a feparate minute made upon a motion of the court in the beginning of the debate, that the fands fpecified in the libel, adjacent to the lands of Ardrofian, are the fands of the fea ; and that the gun was fired, and the wound given, within the high-water-mark : both parties being then upon the dry beach, or fhore, between the high and the low- water-mark. An [ '5 1 An exception has from thence been taken to the jurifdiclioa of the court, founded upon a fippofed exclufive privilege in the lord high admiral of Scotland, and his deputies, to try all crimes committed upon the leas, or in ports, harbours^ and creeks of the fame, or upon freflj waters and navigable rivers below the firft bridges, or within the flood marks. But to this exception, founded, chit fly upon an act of the Scots parliament, anno 1681, chap. 16. the following anfwers occur for the profecutors. Ac what time the office of high admiral firft arofe in Scot- land, does not with certainty appear; but there is clear evi- dence that his jurifdi&ion is not antient. It is probable that his office was originally of a mere minifteru] nature, conferring a command at fea in time of war, and attended wich certain powers and privileges relative to ft'a affairs, particularly with regard to prizes, and to wrecked goods, but without any judicial cognizance or jurifdidion. Afterwards he came to afTume a power of judging in maritime affairs even in time of peace; but fill this jurifdition went no farther than to cafes ftridlly maritime, and was cumulative with the univer- fal and radical junfdiction which the fupreme judges of the common law, both in civil 'and criminal matters, had over the whole kingdom. Alexander King, a manufcript author upon the admiralty of Scotland, who wrote in the laft century, and who muftbe fuppofed to have unHerftood the fubjet, as he himfelf enjoyed] the office of judge of the court of admiralty, gives an account of the rife and progrefs of this jurifdiction, fimilar to whatha$ already been fuggefted. He fays the admiral was an officer appointed in time of war, to prefide over the king's fleets, and took a military oath ; that in time of peace he exercifed a jurifdition confequent upon his office, which the author ex- plains in thefe words. De omnibus itaque conlraverfiis marinis cognofcit amorans. Marinas contraverjias intclligo omnes eas qute navigationis ratione ineunttir, five ex contra flu vel quafi contraRu^ five ex malefitio aut quafi ex maleficio oriuntur, nee inter eft in mart an in terra contractus celebrentiir ^ delifla tamen ex necefji- iate intra marts fluxum perpetrari debent. What fliews that this jurifdiction is not of an early date in Scotland, is, that no mention is made of it in the Regiam Ma- jejiatcm^ or in any of the other relicks of our antient ftatute Jaw, coftecled together in that book, though it is remarkable that all the other jurifdi&ioins in Scotland are particularly treated of and defcri bed ; for example, the juflice court, the fheriff court, regality courts, chamberlain courts, &<:. Fur- ther it appears from 3ir George Mackenzie, (Crim. part 2, tit;. tit. 9.) and from the aft of parliament 1593, d, 154. anJ constitutions ratified thereby (vide Appendix to Statute La\y abridged) that the deans of guild, of burghs, a:id water- baillies were in thofe days the judges in civil maritime quef- tions ; and that the lord juftice-gener^'l, and his deputes, were the judges in criminal caufes of a maritime nature. The juftice general, and his deputes, were indeed the fu- preme criminal judges over the whole kingdom, without ajiy exception, either as to caufes, or as to territory. Their commiffions were ample and unlimited. The grants of juf- ticiary to the family of Argyle, who^.long enjoyed that high office, were infra totum regnum nofirum, and to determine om- nes etfingulas caufes criminates One of them by James the Vth. to Archibald earl of Argyle, dated 28th October, 1529, is exhibited to the court. There are likewife many old ftatutes appointing the juftice and his deputes to hold courts in the different parts of the kingdom, ifiands included, that juftice might be adminiftered over the whole realm, (fee Sla ne voce Iter) and no diftinftion appears between crimes committed upon the coafts, harbours, or feas, and thofe committed within the body of the kingdom : on the contrary, certain trefpaffes which feem to be of a maritime nature, are men- tioned in fome of the old features (ftat. Rob. I. c. n. parl. 1449. c. 9.) as punifhabie by the juftices, fuch as kill- ing falmon within the fea or flood -maik in forbidden times^ and other matters relative to cruives and fifliings. The firft notice taken of the admiral's jurifdiftion in any of our ftatutes, is in^ parliament 1592, cap. 160. of the fmall edition ; and from this aft it appears, that in the preceding reign, viz. that of queen Mary, the earl of Bothwell, lord high admiral, had obtained fome unufual claufes in his grant of admiralty, and ufurped a higher jurifdiftion than was con- fiftentwith the law, which having been greatly complained of, the faid aft was made in order to remedy the abufe, and to reftore matters to where they were before the death of James the Vth. At the fame time it is remarkable, that even in queen Mary's reign caufes ftriftly of a maritime nature were judged by the court of feflion in the firft inftance; This appears from the cafe of lord Bothwell contra Fleerri- ings, 9th March, 1543, which is to be found* in Sinclair's Manufcript Collection of Deciiions, in the advocated library. The only peculiarity obfervable in this cafe-, is, that the judge admiral is faid to have taken his feat in the court of feflion, and voted along with the judges of that court, which he was probably allowed to do from commitas^ or from th,e idea of cumulative jurifdictioh, as we fee from th'e aft 29. parl. C 17 ] parl. 15371 that this was praftifed in other cafe^ of cumula- tive ju-ifdiftion. The next mention of the admiral is in the aft I5th parl. 1609, and the notice which is there taken of him does not convey a high idea of his jurisdiction. In 1606 an aftliad pafTed directing execution of horning to pafs on the decrees cffheriffs, ftewarts, and baillies ; but in which aft it would feem the admiral and his deputies had been purpofely omitted, becaufe not worthy of that privilege. Some care, however, had been taken before the year 1609 to fill the offices of ad- miralty with more able and proper men j and an aft was then patted, allowing the fame execution to proceed, upon their decrees, as in the cafe of other inferior judges j and indeed there was more reafon for this regulation with refpeft to ad- miral decrees than in an*y other cafe, becaufe ftrangers and feafaring people being generally the parties concerned, it was very proper that there fhould be fummary execution upon them. This aft indeed mentions the admiral court as a Sovereign judicatory; but the meaning of this is explained by Sir George Mackenzie, in his obfervations, to be, that the high court of admiralty held at Edinburgh is fuperior to all the deputy admiral courts held in other parts of the kingdom* and has a power of reviewing both the fentences of thefe in- ferior admirals, and alfo his own decrees. It was ftill a court fubordinate to the feffion and jufticiary, and remains fo to this day; as it is a point not difputed, that the decrees of the high court of admiralty, even in caufes the moft ftriftly maritime, are liable to be brought before the fupreme courts of feffion and jufticiary in the fecond inftance, by way of fufpenfion or review ; and at the time of the aft laft referred to, they could be brought alfo in the firft inftance, as al- ready mentioned. In the years 1610, and 1613, recently after the aft 1609, two inftances appear on record of trials for piracy, one of them before the privy council, and another before the court of jufticiary. Sir George Mackenzie takes notice (Crim. Part II. tit. 9.) of them, and lays it down as a clear propo- fition, that the admiral's jurifdiftion was then cumulative with that of the jufticiary, even with regard to crimes of a mari- time nature committed at lea. And indeed the cafe could .not be otherwife, for however ample the grants of jufticiary have been to the lords high-ad- miral, they could not be more fo either as to territory or caufes than thofe voted in the < two fupreme courts of feffion and jufticiary. Thefe courts had an univerfal Jurifdiftion over the whole kingdom without exception ; and therefore D the r is ] the neceflary confequence of the admiral's .having likewife a jurifdidion either of one kind or another, was, that he ex- ercifed that jurifdidion in cumulo with the fupreme courts. Incrderto make the admiral exclufive with refped to his jurifdidion, or any part of it, a ftatute was neceflary, declar- ing him to be fo, and prohibiting the fupreme courts from exercifmg that branch of jurifdition. The courts of feflion and jufticiary have a clear, radical, and original right, to judge admiral caufes as well as others, unlimited as to territory, and without diftindion as to matter. If the admiral therefore, a magiftrate of recent date, claims any privative jurifdidion, he muft prove it ; and accordingly he appeals to the ad i6th of the parliament 1681, as th&, charter of his exclufive jnrifdidion. The profecutors do admit, that by this ad, he has ob- tained an exclufive jurifdidion in the firft inftance with re- fped to certain matters ; but they contend that this exclufion can go no further than the ad carries it; and that both from the words and intention of the law, and from the reafon of the thing, it is clear that his exclufive jurifdidion, both in civil and criminal matters, is limited ratione caufes. The aft eonfiils of two parts, which are apt to be blended together^ and not fufficiently diftinguifhed, viz. a declaratory, and an enacting part. The firft points out what the jurifdi&ion was then understood to be ; it declares the court to be fovereign, and to import furr.mary execution, the meaning of which has already been explained. The fecond part proceeds likewife upon a recital or narrative, that the high admiral is his maje- fty's lieutenant and juftice-general upon the feas, and in ports, harbours, creeks, &c. and enads that he ftiould have " the fole privilege and jurifdidion in all maritime andfea- " faring caufes foreign and domeftic, civil or criminal^ what- " foever within the realm ^ and over all pcrfons concerned in " the fame;" and prohibits all other judges from any cogni- zance of the faid caufes, in the firft inftance. The after-part of the acl allows fufpenfions of their fentences in thefe caufes, but no advocations. The recitals contained in this at, declaratory of the pow- ers already vefted in the office of high-admiral, muft be ex- plained by the law and practice antecedent to that period, and ought not to be mixt with the enacting words, which give a new additional privilege to the high-admiral of being exclufive in the firft inftance as to certain caufes, viz. mari- time and lea-faring queftions civil or criminal. Formerly, although he was a lieutenant and juftice-general, and a fovereign coujt in certain refpeds, yet his jurifdidion was C 19 1 was cumulative in every refyefl with that of the felEon and jufti- ciary. By the al 1681, he is made privative in the hYit in- ftance; but this privative jurifdiftion is confined ratione faufa, both in civil and criminal matters. He is not made exclusive over a certain territory, but in certain caufes, which fall un- der the particular province of an admiral, viz. maiitime and fea-faring caufes wherever they arife, whether within the fea or without it ; and confidering the enactment in this view, it was a proper and falutary one, as the admiral and his de- pute may be fuppofed to give more attention to maritime af- fairs, than other judges ; but toextend this exclufive power to cafes not maritime, whether civil or criminal, would have been unfalutary and unexpedient. The fingle thing that gives a foundation for the argument on the part of the pannel, is that the recitals of the at be- ftoiv high-founding denominations upon the admiral, fuch as lieutenant and juftice-general upon the fea, &c. But in the firft place this being narrative only, mull: be explained ac- cording to the former law, as already mentioned, adly. What feems to have given rife to the particular flile in which this aft is penned, is, that the duke ef York, was then commif- fioner to the parliament of Scotland, and at the fame time lord high-admiral of the kingdom. 3dly. What (hews that the admiral's jurifdi&ion, not- withftanding thofe recitals, was meant to be a jurifdiction with refpeft to caufes, and not with re(pe& to territory, is, that, in far, the commiffions to the admiral have all along been yniverfal as to territory. The commiflion to the prefent lord high-admiral, the earl of March, is exhibited to the court, which appoints his lordftiip " our vice-admiral, commiflary " and deputy, in and through all that part of our faid king- " dom commonly called Scotland, and the maritime parts " of the fame, and thereto adjacent." 4thly. The enading words of the flatute are the rule by which this queition muft be decided ; and thefe words are unambiguous and clear^ for they do exprefsly fay that the ad- miral (hall be exclufive in the firft inftance as to maritime and fea-faring caufes, civil or criminal, arid over all perfons concerned in the fame ; and they do not fay that he ihall be limited to a certain territory, or that he fhaJl have an exclu- five power to judge of caufes not maritime, either within or without that territory. The words maiitime and fea-faring caufe^, civil or criminal, were totally ufelefs and improper, if an unlimited jurifdi&c. are judged by the ordi- nary courts of law, and not before the admiral ; for example, a minute of fale of a land eftate, a contract of marriage, or ether matter of that kind, entered into on board a (hip, or in a creek, or harbour, comes under the cognizance of the ordinary courts, and can with no propriety be brought before a court of admiralty. It is true, the admiral has, by ufage, acquired ajurifdic- ticn cumulative with thejudge-ordinary in certain civil caufes, not properly maritime, viz. in mercantile caufes, and this has arifen entirely from the connection of thefe caufes with fea- affairs ; but this prefcriptive right of exercifing a cumulative jurifdi<5Hon in mercantile caufes, merely on account of their connection with thofe which properly fall under the admiral's cognizance, does ftrongly illuftrate the argument which the profecutors are maintaining, for it tends to (hew, that if the admiral has likewife obtained a jurifdi&ion in criminal caufes not maritime, this muft be founded on the fame prefcriptive origin, and not on the adl: of parliament, and muft be cu- mulative with the fuprerr.e jurifdition of the court of jufti- ciary. Whether the admiral may, or may not, have acquired a cumulative jurifdition in criminal cafes not maritime, arif- ing upon the fea, or in ports, harbour?, and creeks, it is immaterial to inveftigate ; but fuppofing him to have fuch a prefcriptive right, furely it cannot be of a different nature from his civil jurifdi6tion of the fame kind, viz. cumulative -with the judges ordinary. The court of jufticiary being uni- verfal over the kingdom, cannot be depriv.ed of any branch of i*s jurifdiction, merely by another court's exercifing fimi- lar powers, without any ftatute faying, that the rights of this other court fhail he privative. And here it may be obferved, that the afteitablifhing the Union, Article XIX. does plainly iuppofe, that the admiral's proper jurifdi<5iion is confined to caufes maritime 3 fo that any other jurisdiction affumed by the [ 21 ] the admiral, is contrary to the ideas of the ftatute law, and has been altogether an ufurpation. The admiral, in civil cafes, being clearly univerfal as to territory, and limited ratione caufa^ cannot be otherwife with refpedl to criminal matters ; for it would be moft anomalous to fuppofe, that his criminal jurifdicYion is juft the reverfe of his civil one; and fuch a fuppofition would be directly cori- trary to the act 16.81, in which the words maritime and feafaring, are applied to criminal as well as to civil caufes. It is true, there is this difference in the nature of the thing between civil and criminal queftions, that few, if any in- ftances can be fuppofed, of a maritime crime committed upon land ; for which reafon Alexander King, the author above mentioned, fays, that maritime ddicls, from neceffity, muft be committed within the flow of the fea ; but ftill, if any cafe can be figured of a maritime crime committed upon land, i. e. a crime relative to navigation, or to fea-affairs, the cognizance of fuch crime falls undoubtedly in the firft inftance under the admiral's privative jurifdi&ion : and on the other hand, forgery, perjury, adultery, murder, &c. commit- ted on board a fhip, fall clearly to be tried before the court of jufticiary, and are improper for the admiral's cognizance. The doctrine here laid down is fupported, by the beft au- thorities on the law of Scotland, as well as by precedents and the practice of their courts. In the hiftorical law-traces, the work of a very learned and accurate judge, (tide Courts, p. 332,) this point is fully difcufled and determined; and the author takes notice of a cafe of murder committed at fea on board a boat, which having been tried before the court of jufticiary, the judges at firft demurred, whether it fell under their jurifdiclion ; but, after mature" deliberation, the jurifdic- tion was fuftained. The author of the Law-inftitutes, Vol. II. p. 540, agrees in opinion, that the exclufive jurifdiclion of the admiral in criminal cafes, is limited to thofe (iriclly, maritime. See allo Mr. Forbes, in his Inftitutes, Vol. II. p. 238, who enume- rates the crimes which he thinks may be tried before the ad- miral. Sir George Mackenzie, in his obfervations upon the a6fc 1681, fays exprefly, that the privilege thereby given to the admiral, is limited to maritime and lea-affairs. Mr. Bayne, in his notes upon the Criminal Law, is of the fame opinion. Lord Stair mentions the fubjecl in a very overly manner, without entering into particulars, and \* ithout making the proper diftinclions ; and the fame thing is to be faid of Sir Thomas Craig. As to Balfour, p. 629, of his Pradicks, his r 22 i his authority is taken from the Jaws of Olleron, and not from, the municipal law of Scotland, fee p. 614, of the fame book j and his doctrine, if taken literally, goes plainly too far, for it includes the affairs of merchandize and fijhingt which, by the law of Scotland, never were underftood to fall under the admiral's privative jurifdidion. Another author appealed to, vifc. Wellwood, takes his ideas likewife from the fea-laws of other countries. At the fame time, in p. 10. he explains tfte admiral's criminal jurifdiclion in this way, " that they fhould have a fovereign jurifdidlion * only proper to themfelves, over all fea-faring men within " their bounds, and in all fea-faring caufei and debates, civil *' and criminal.'* As to precedents, befides thofe already mentioned, a cafe appears, 13 June, 1672, of a minifter in the Ifle of Arran, being tried and condemned by the court of judiciary for mur- der committed on board an irifn (hip, lying in the harbour of that ifland. The crime was commenced, carried on, and perpetrated on fliip-board, and no doubt appears to have been entertained of the jurifJidticn. Upon the gth of Au^uil, 1720, Fairney and ethers were tried before the court of juilicirfry for :he crime of mobbing and fedition, by going tumultuoufly, armed with a\es, &c. and in- vading an Englifli fhip lying in the harbour of Leven, wound- ing tailors, cutting the rigging, unhinging her rudder, carrying away fails and anchors, cutting holes in her bottom, dam- nifying cargo, &c. A fimilar caie. was tried 2d of February, 1756, where James Johnfton, and others, were charged with having violently boarded a (hip in JPittenweem-harbour, in which there were uncustomed goods, fcizing the tide-waiters, confining them to the cabin, unloading the veflel, and then turning her adrift. The court demurred to the jurifdiiiion ; and though the counfel for the pannels waved the objeiiion, they ordered the other party to be heard ; and, upon delibe- rately confulering. the matter, found the court competent. The crime here was likewife commenced and carried on aboard the fhip; and it could make no difference in the argu- ment, that the gocds were taken from on board, and carried to a houfe on land, for the crime confifted in the hoftile in- vafion of the fhip, and the other acts committed there. Upon the 6th of July 1722, Helen Wilfon was tried be- fore the court of jufticiary for child-murder; and the fact charged againlt her was, that fhe had carried her child t;o the well fide of an ifland, called Lammas-lfland, nigh the har- bour of Dunbar, and thrown him from a rock, whereby he was killed. This rock hangs over the fea ; and there is no doubt [ 2 3 3 doubt that the crime was committed within the fuppofed ]\i- rifdiftion of the admiralty. It is believed a fimilar cafe was lately tried before the circuit court at Aberdeen, and no in- ftances will be found of trials of that kind before the ad- miral. The cafe of M'Adam and Long, in 1735, is llkewife re- markable. They were tried before the admiral' for killing Hugh Frafer on board a boat on the fea. The admiral pro- nounced an interlocutor on the relevancy, by which the de- fence being too much narrowed, the pannels were found guilty by the jury, and condemned by the iudge. Upon application to the court of jufticiary, the fentence was fui- pended ; and thereafter the prifoners having petitioned the court for liberation, the lords of jufticiary c< granted war- , vigeftmo fecundo die Dtcembris Ttiillefjmo feptingentefimo & fexagefimo nono per Honor- abiks viros Thomam Miller de Bar/dimming dominum juftuiarum ckricum^ Alexandrum Bofwell de Aucbin- leck^ Henricum Home de Kaimes, Jaccbum Ftrgufon de Pitfour, Georgium Brown de Coalfton^ &? Ro- fartum Bruce de Kennet, dominos commijjionarivs juftici- aria ditt. S. D. N. Regis. Curia legitime Ajfirmata. INTRAN. MUNGO CAMPBELL, excife-officer at Saltcoats, in the county of Air, pre- fent prifoner in the Tolbooth of Edin- burgh, pannel, Indifted and accufed as in the preceding Sederunr. Parties procurators prefent as in lafl Sederunt. The lord juftice-clerk, and lords-commiiEoners of jufticiary having confidered the debate viva voce at their lad fede- runt and foregoing minutes, they find, That the court has jurifdin ckricw/rt, Alexnndrum Bo/well de Auchinleck, Hen- ricum Hems de Kaimes^ Jacobum Fergujon de Pit/our^ Georgium Brown de Coalfton, et Rdbtrtum Bruce <;e Ksnnctt^ dominos commijjionario3jufticiaria difl. S. D.N. Regis. Curia tegitime Ajfirmata. INT RAN. MUNGO CAMPBELL, officer of excite at Saltcoais, in the county of Air, pre-* fent prifoner in the Tolbooth of Edin- burgh, panncl, Indicled and accufed as in the preceding Sederunt. The lord juftice-clerk, and lords commiffioners of jufticiarp having coniiJered the criminal indictment, r^ifed and pur- fued at the inftance of Archibald Eail of Eglintoun, bro- ther-german to the deceafed Alexander Earl of Eglintoun, with concourfe, and alfo at the infiance of James Mont- gomery, Efq. his Majtfty's advocate for his Majcfty's in- tereft, againil Mungo Campbell, Excife-OfHcer at Salt- coats, in the county of Air, pannel, with the debate and informations thereupon, they find the indictment relevant to infer the pains of law ; but allow the pannel to provtf all fails and circumftances, that may tend to exculpate him from the crime charged, or alleviate his guilt ; and remit the pannel, with the indictment as found iclevant, to the knowledge of an afiize. (Signed) THO. MILLER, J. P, D. The lord juftice-clerk, and lords commiuioners of judi- ciary, continue the diet at the inOance of Archibald Earl of Eglintoun, and hisMajelly's advocate, againft the faid Mungo Campbell, pannel, and whole other diets of courr^ till Monday the fifth day of February next, at eight o'clock in the morning, in this p'ace ; ordain parties, witnefTes, af- ftzers, and all concerned, then to attend, each under the p.i.ns of law, and the pannel in the mean time to be car. ncd back to prifon. F Curia [ 34 ] Curia Jujliciana S. D. N. Regis tent a in nova SeJJionu Demo de Edinburgh quint o die Ftbruarii miliefimo fep- tingentefimo et feptuagejimo per Honor abiles viros ^bo- mam Miller de Barjkimming dominum jnfticiarium de- ricum, Jacobum Fergufon de Pilfour, Georgium Brown de Coalfton, et Robert urn Bruce d: Kennett^ dominos commijfionarios jujliciaritf dift. S. D. N. Regis. Curia legitime Affirmata. INTR AN. MUNGO CAMPBELL, officer of excife at Saltcoats, in the county of Air, pre- fent prifoner in the Tolbooth of Edin- burgh, pannel, Indicled and accufed as in the preceding Sederunt. The lord juftice-clerk, and lords commiffioners of jufliciary, continue the diet at the inftance of Archibald Earl of Eglintoun, and his majefty's advocate, againft the faid Mungo Campbell, pannel, and whole other diets of court, till Monday the 26th day of February inftant, at eight o'clock in the morning, in this place ; ordain parties, wit- nefies, affizers, and all concerned, then to attend, each under the pains of law, and the pannel in the mean time to be carried back to prifon. (Signed) THO. MILLER, J.P.D, Curi* [ 35 ] Curia Jufitciaria S. D. N. Regis tenia in nova SeJJioms Domo ds Edinburgh vigefimo fexto die Februarii mil- Isfimo feptingentefimo et feptuage/imo per Honorabiles vires Thomam Miller de Barjkimming dominum juftici~ arum clericum, Alexandrum Bojwell de Auchinleck^ Henricum Home de Ratines, Jacobum Fergufon de Pit- four, Georgium Brown de Coalfton, et Robertum Bruce de Kennett, dominos commijjionarios juftidari that in paiti- pihr, Mr. Mackenzie did not defire him to take the jury- rm n from any clafs whatever. Mr. Lockhart fnr the profecutor thereupon moved, that as there was no relevancy in the objediion to the lift of afli/.e, which is the acl of court, ^nct of tne clfrk, and, in this cafe, jio impropriety on the part of the clerk, that therefore the pbjtdlion ough: to be lepelled. The [ 37 ] The lord juftice-clerk, and lords commiffioners of jufti- ciary, having confidered the foregoing obje&ion, with what has been declared by the clerk of court, they re- pel the objection, and ordain the trial to proceed. (Signed) THO. MILLER, J. P. D. The lords then proceeded to name the following perfons to pafs upon the afiize of the faid pannel. Huoh Dalrymple, of Fordell. John Buchan, of Lathem. Wm. Ty tier, of Woodhouflee. Tho. Sharp, younger of Houf- ton. John Chriftie, of Eaberton, Henry Lindefay, merchant in Edinburgh. Alex. Sherif, of Cra'gleith. Wm. Maghie, merchant there. James Finlay, of Wallyfoord. Robert Arthbuthnot, banker there. Peter Robertfon, goldfmith in Edinburgh. James Hunter, banker in Edinburgh. Arch. Hart, merchant there. John Fife, banker in Edinburgh. Walter Hamilton, merchant there. Who being all lawfully fworn, and no objection on ihc cpntrary, The profecutor for proof of the libel proceeded to adduce the following witnefles. ANDREW WILSON, Wright, in Beith, aged forty years and upwards, married, folemnly fworn, purged of malice and partial counfel, and interrogate, depones, That upon Tuefday the 24th day of Odlober laft, he being then employed in fome part of the late lord Eglintoun's work, attended his lordmip from Eglin- toun to ArdrofTan and Fairly, where his lordmip in- tended to go That his lordmip was alfo attended that day by John Milliken, John Hazle, John Coo- per, and James Hutchefon, his lordlhip's fervants. That they left Eglintoun after breakfaft, and ftopt fome time at Parkhoufe, to the weft, or northweft of where they were joined by Alexander Bart- rfymore a c - 3S ] leymore, -another of his lordfaip's fervants, who, at his lordfhip's defire, followed them from that place. Depones that at this time lord Eglintoun was in a coach, and the reft of the company on horfeback That afcer they had got betwixt a quarter and half a mile from Parkhoufe on the road to Fairly, one of the fervants, and, as he thinks, John Millikcn faid to my lord that he obferved fome more (hooters, as they had obferved other (hooters that day, upon his lord- fhip's grounds. That the deponent endeavoured to divert his lordfhip from taking any notice of them, as they had a pretty long ride in view that day. That his lordfhip afkcd his fervants, if they knew who it was; to which Alexander Bartleymore anfvvered, that one of them, he believed, was Mungo Campbell : upon which his lordfhip came put of the coach, and mounted a horfe, which was led by one of his fervants, and rode towards the place where thefe pcrfons, who were two in number, w ;< , That at this time thefe twoperfons were retiring from the grounds where they were firft obferved, towards the fands of the fea. That lord Eg- lintoun rode up to them, and the deponent and John Hazle followed j and the deponent was clofe by his lordfhip when he came up with Mungo Campbell, the pannel, -vliom he now knows at the bar, but had never feen him before that day. That Mr. Campbell had a gun in his hand, but the other perfon who was along with him had no gun ; nor did the deponent know who he was, but now underftands that it was John Brown, tide-waiter, whom he has feen this day among the witneffes. That my lord Eglintoun came up within ten yards, or thereby, of Mr. Campbell, be- fore he acceded him, and then faid, " Mr. Camp- " bell, I did not expect to have found you fo foon " hunting upon my grounds, arter your promife * c when you (hot the hare." And demanded Mr, Campbell's gun, which he refuied upon which my lord, having neither whip nor fpurs, gave his horfe a kick, in order to get nearer the pannel ; upon which i the C 39 J the pannel retreated backwards fome fteps, and de- fired my lord to keep off, and at the fame time pre- fented, or rather pointed his gun towards lord Eg- lintoun, but did not raife it to his fhoulder That Mr. Campbell had his hand upon the lock, but the deponent did not obferve whether the gun was cocked or not; upon which lord Egllntoun flopped his horfe, and fmiling faid to the pannel " Are you going to " fhoot me?" and thinks that at that time, but is not certain, the pannel anfwered, that he would if he did not keep off. That though he heard the paanel afterwards threaten he would fhoot lord Eglintoun, he is not fure whether he faid fo at that time. That lord Eglintoun difmounted from his horfe, and faid, *' if he had his gun he could fhoot pretty well too, " or that he would moot as well as jy undf r: j but w:ri M what [ 84 ] what propriety, the purfuers are at a lofs to difcover. The firit of thefe proves no more than this, That, where one is invaded with arms, it is lawful for him to defend himfelf by arms : and, as to the other text, it proves no more than this. That a man is entitled to defend his poiTeffion modera- tione inculpates tutelte, without defining the bounds or limits thereof j and che fame anfwer does occur to the paflage from lord Stair, fol. 174, and from the late Inftitute, vol. i. fol. 512, 31. No more is there faid, than that one may con- tinue or recover his pofleffion by force ex Incontinently but thefe learned authors have no where faid, that it is lawful for the perfon in pofleffion to kill the perfon who endeavours to ejeit him ; far lefs could it be maintained, that a perfon was juflifiable for killing, under the circumftances of the prefent cafe, where the perfon in pofleffion did not run the fmalleil rifk of lofmg his property, if he was entitled to hold it ; and where the perfon who is fuppofed to have attempted the feizure, was totally defencelcfs and unarmed, and fo could not be fuppofed to intend violence of any kind. If the earl had no title to demand thepannel's gun, he might, no doubt, refule to deliver it up; and if the earl had thereupon attempted to take it from him by force, he might, perhaps, have been juitifuble in ftruggling to maintain his pofleffion. But it is repugnant to reafon, and the common feelings of mankind, to (ay, that, under the circumftances of the cafe, the pannel was at liberty to bereave the earl of his life, rather than part with his gun. The purfuers humbly apprehend, that, in found law, and in reafon, no msfn is intitled to kill, in defence of his pro- perty, unlefs where he is attacked with a felonious intention to rob and bereave him of his property ; but where the perfon who makes the attack has clearly no felonious intention, but only, under an erroneous apprehenfion of his own right, com- mits a trefpafs upon the property of his neighbour, and for which redrefs can eafily be had in a court of law, in fo far as the party has been injured ; the law of no civilized country will, in thefe circumftances, allow a perfon to kill another, under the 'pretence of defending his property. The contrary doclrine would lead to ftrange and abfurd con- fequences. If killing was jufHfiable in fuch a cafe as the pre- fent, a perfon might be equally juftified for killing for every trefpafs that was made upon his property. If it was lawful for the pannel to kill the earl, in order to prevent him from feizing his gun, noWthflanding he believed he had a right to ftize ir, by the fame rule the earl might have been juftined for killing the pamui, in attempting to come upon the earl's lands againft his will. Your C *s ] Your lordfhips know that, by the ftatute 1686, it is lawful for every proprietor or poflefibr of lands, brevi mann, to poind the cattle found upon his grounds, and detain them, until he be paid half a merle for each beaft found in the fkaith. Now, let it be fuppofcd, that the heritor, in attempting to feize and poind, (hould be refifted by the proprietor of the cattle ; and that the proprietor of the grounds, from his not being pre- cifely acquainted with the marches, fhould attempt to poind fome of thefe cattle which were, defaSla^ not upon his proper- ty, but upon the other fide of the march ; is it poffible to main- tain, that the proprietor of the cattle, in order to prevent his property from being unjuftly carried off from him, would be juftified in killing the perfon making the feizure ? It is be- lieved, that no man would hefitate a moment in declaring the proprietor of the cattle guilty of murder, when it was plain, that the proprietor of the lands had no felonious intention to bereave him of his property ; but had only been led to commit the trefpafs, upon an erroneous apprehenfion of his own right ; and when, at the fame time, the cattle could be recovered by an a&ion at law, with full damage and expences of procefs. It is founded in the very nature of fociety and government, that no man is intitled to avenge his own wrongs, or take juftice at his own hand, unlefs where the laws of the fociety cannot give him relief. In this view, it may be lawful to de- fend himfelf againft an irreparable lofs, even at theexpence of the life of the aggreffor. A woman, for example, may be juftified for killing the perfon who makes an attack upon her chaftity, when fhe cannot otherwife prevent the violation of it; and, in like manner, it may be lawful, in defence of one's property, to kill a robber who feloniofly endeavours to be- reave him of it ; becaufe, without fo doing, his property may be loft. When the robber has once carried off the goods, it may not be in the power of the law to give the perfon injured any relief; but that will never apply to the cafe in hand, and the other cafes above-mentioned, where there was clearly no felonious intention, and where the party fuppofed to be inju- red ran no rifk of lofing his property, which remained perfectly fecure ; and where, if he was in the right, the public law of the land would give him full indemnification and relief. The above diftin&ion is clearly pointed out by numbers of authorities. PufFendorf, in his treiitife De jure nature ei gen~ tium, lib. ii. cap. 5. 4.. after ftating the rights competent to mankind in a ftate of naturt?, proceeds as follows ; " Aft vero quod licet in naturali libertate viventibus, qu fuam fa- lutem propriis viribus proprioque ex judicio expediunt ; id baud quaquam indulgetur illis, qui in civitatibus degunt, et quidem imprimis adverfu* fuos cives. Hi enim vioientam fui defenfionem [ 86 ] defenftonem adverfus cives perpetuos aut temporarios ita modcrari tenentur, ut earn tune demum adhibeant, quando tempus ac locus non ferunc auxilium magiftratus ad repellen- dam earn injuriam implorari, qua vita vittsque cequipollem^ aut jrreparabile damnum in preefentaneum periculum conjicitur. Et quidem, ut periculum tantummodo depcllatur j vindi&a au- tern et cautio de non oftendendo in poiterum magiftratus ar- bitrio relinquatur." The diftin&ion already ftated, is likewife pointed out by Mr. Juftice Fofter, who, in the treatife already mentioned, on homicide^ cap. iii. lays it down, that " in the cafe of juftifiable fclf-defence, the injured party may repel force with force, in defence of his perlbn, habitation, or property, againft pne who manifeftly intendeth and endeavoureth, with violence or furprize, to commit a known felony upon either. In thefe cafes he is not obliged to retreat, but may purfue his adverfary, till he findeth himfelf out of danger; and if in a conflict between them he happeneth to kill, fuch killing is juftifiable." And in the fame chapter, he fays, " Where a known felony is attempted upon the perfon, be it to rob or murder, here the party affaulted may, repel force with force, and even his fervant then attendant on him, or any other perfon prefent, may interpofe for preventing mifchief; and if death enfueth, the party fo interpofmg will be juftified. In this cafe, na- ture and focial duty co-operate. * And in cap.v. 4. he fay?, that, " no man under the pro- tection of the law is to be the avenger of his own wrongs. If they are of fuch a nature for which the laws of fociety will give him an adequate remedy, thither he ought to refort." The diftinftion which the purfuers have endeavoured to eftablifh, is clearly pointed out by this learned judge. He, in ftating, in what cafeS it is juftifiable to kill in defence of life and property, confines it to the cafe where a known fe- lony is attempted upon either, by robbery or murder j but where the attack made upon property is of fuch a nature that thelaw can give an adequate remedy, the perfon attacked is not entitled to avenge his own wrongs, but he muft refort to the courts of law for redrefs. The very fame doctrine is laid down by Blackftone, lib. iv. cap. 14. 3. " If any perfon attempts a robbery or murder of another, or attempts to break open a houfe in the night- time, which extends alfo to an attempt to burn, and fliall be killed in fuch attempt, the flayer fliall be acc A uitted and dif- charged. This reaches not to any crime unaccompanied with force, as picking of pockets, or to the breaking of any houfe in the day-time, unlefs it carries with it an attempt of rob- bery alfo/' And [ 87 J And Hawkins in his Treat, of the Pleas of the Crown, (lib. i. cap. 31. 33.) has the following paflage : " Alfo it feems to be agreed, that no breach of a man's word on pro- mife, no trefpafs either to lands or goods, no affront by bare i words or geftures, however falfe or malicious it may be, and aggravated with the moll provoking circumftances, will ex- cu(e him being guilty of murder who is fo far tranfported thereby, as immediately to attack the perfon who offends him, in fuch a manner as manifeftly endangers his life, without giving him time to put himfelf upon his guard ; if he kills in purfuance of fuch aflault, whether the perfon flain did at all fight in his defence or not ; for fo bafe and cruel a revenge, cannot have too fevere a conftru&ion." From the above authorities, it is extremely plain (what indeed is ftrongly founded in the principles of right reafon) that no man is at liberty to take away the life of any of his fellow-creatures, in the defence of -his goods and property, except where the attack is made upon them with a felonious intention ; or, in other words, where the invader, by car- rying off the goods, would himfelf have been guilty of fe- lony ; but that, where no more than a trefpafs is committed, and where the party injured can have full and ample repara- tion by having recourfe to the courts of juftice, the perfort killing the invader in fuch circumftances, is guilty of the crime of murder, and will be juftly fubjected to a capital punifhment. And indeed fo anxious have the laws of every well-go- verned ftate been to prevent mankind, in a ftate of fociety, from conftituting themfelves the judges and avengers of their own wrongs, that they are not permitted to kill any of their fellow-creatures in defence of their property, even where the fame is invaded with a felonious intention, except where the fame becomes abfolutely neceiTary, and the laws of the fociety unavailable to give them proper reparation and redrefs. This diftinction is very clearly laid down in the divine law, which was delivered by Mofes to the Ifraelites, Exod. chap. 22. v. 2 and 3. " If a thief be found breaking up, and be fmitten, that he die, there (hall no blood be (bed for him. If the fun be rifen upon kirn, there fhall be blood {bed for him, for he fhould make full restitution ; if he have no- thing, then he fhall be fold for his theft." The fame rule is laid down in the civil lav/, and, particu- larly in /. 9. ff\ ad leg. Cor. dc ficurih : " Furem nofluttmm fi quis occiderit, ita demum impune feret, fi parcere ei fine periculo fuo non potuit.'' The general rule among the Ro- mans was, that a thief might be {lain by night with impu- ni^', but that he could only be lawfully killed by day, Ji fe i (tit C 88 ] telo defotderit. And this do&rine is Jaid down at great length by Julius Clarus, lib. 5. Homicidium, No. 47 ; and alfo by Damhouderius, cap. 78. No. r, 2, 3, and many others, unnecefTary to mention particularly. A diilinction was attempted to be made between avenging a wrong already committed, and preventing the commilfion of a wrong. The firft was admitted to be unlawful, but the contrary was maintained as to the other. But, with fub- mifiion, the above authorities ihow clearly, that there is np foundation for any fuch diftinc~tion, in fo far as applicable to the prefent cafe ; for, when a man exceeds the bounds of law and of reafon, in defending againft a fuppofed injury, he avenges his own wrong, and, confequently, falls under the rules already laid down j and this muft the rather obtain, in the prefent cafe, where the fuppofed injury had no real exiftence, but in the pannel's own imagination of what the earl might polfibly intend upon the pannel's refufing to deliver his gun. From what has been faid, it may be juftly concluded, that the pannel cannot juftify himfelf from the murder, with which he is charged, by alledging, that it was necelTarily committed in defence of his property. It has been fhown, from various authorities, and from the reafon of the thing, that killing in defence of property, cannot be juftified, unlefs where the fame was felonioufly invaded, and when, at the fame time, his property could not be otherwife fecured. Whereas, in the pretent cafe, it is plain, that the deceafed earl had no fuch intention. He could not have been charged as being guilty of felony, if, defaSlo^ he had feized and carried off the pannel's gun. He did not thereby intend felonioufly to rob and bereave the pannel of his property. He was led to make the demand, under the belief and apprehenfion, that the law intitled him to make the feizure. Whether he was right or wrong in that apprehenfion, is to the prefent ilTue very immaterial. If he was miftaken, all that could be charged againft: him, if he rud carried off the gun, was a common trefpafs, upon which he might have been fubjedled in a civil action, to reftore the gun, and to indemnify the pannel of what expences he fliould incur in making his claim efrV&ual. and what damages he could qualify he had fultained by the feizure or detention. It is plain, that if the gun had been taken from him, he ran no rifk of lofing his property. If he had a juft title to reclaim it, the law was open, where he would get full redrefs ; fo that it is impoflible, that, with. iin.y (how of reafon or juftice, it can be maintained, that the f Muting the earl to death, was neceflary, in defence of his property. And, C 89 ] And, ss this psrt of the pannel's defence muft unqueftion- ably be repelled, zs utterly irrelevant, the other part of the defci>ce, ,viz. that the act was committed in the necefTary defence of the pannel's life, muft (hare the fame fate. The relevancy of this defence the purfuers do not difpute, but it is utterly inconfiftent with the fa6b, as ftated for the panncl himfeif. It. from thence appears, that no violence or injury of any kind was offered or threatened to the pannel's perfon* On the contrary, although the easl had a gun along, w-ith him in the coach, he left it there unloaded, comes out ard advances to the panncl, altogether unarmed and defencelefs, and afks of him to deliver up his gun. Nor is it a circumftanpe of any moment, that the earl at laft called for his gun, becaufe it is evidenr, from the whole circumftances of the cafe, even as told by the pannel himfdf, that the pannel had no realbn to apprehend, that the earl thereby meant to commit any acl: of violence upon the pan- nel's perfon, whatever intention there may have bc-en to de- ter and overawe the pannel from putting his threats in execu- tion, it is merely impofiible, thatihe pannel could beconftitu- tus in periculo vittf, as the earl ftili continued unarmed and defencelefs at the time he received the fatal wound ; and, at any rate, had the earl been in poffeffion of his gun -at the time, and that the pannel had ferioufly believed, -that the earl therewith intended him harm, he knew well that he could at any time have faved himfeif, by delivering up his gun, and which has been already fhown, he was not intitled to with-hold, at the expence of the earl's life ; his own decla-* ration referred to the indictment, will {how, that this is a mere color qutefitus ; for that the panne! neither was in any dan- ger of his lite, nor did apprehend himfeif to be in any fuch ; all that he pretends to have apprehended was, that the eari might intend to take his gun from him. It was faid for the pannel, that he and the earl were upon very unequal terms ; for that he had been deferted by his companion, and left fingle, whereas the earl was attended with a numerous train of fervants. But this circumftance is, with fubmiflion, the worft apo- logy which the pannel could have offered for his conduct, if he was truly apprehenfwe, that bodily harm was intended againft him, his only fafety lay in keeping up his fire, when the gun was difcharged, he became defenceiefs, and could eafily be overpowered by fuch fuperior numbers ; and there- fore his unloading his gun in the earl's bowels, affords of itfelf fufficient proof, that it was not dene from any apprv- henfion of danger to his own perfon, but that it truly pro- ceeded from the wicked fchezne, which, from the beginning, N lie C 90 ] he appears to have deliberately and firmly refolved upon, viz. rather to bereave the earl of his life, than to part with his gun, upon a falfe and groundlefs apprehenfion, that the earl meant to ufe violence in depriving him of the gun ; and therefore-, as, from the facts as ftated by the pannel himfelf, it cannot be qualified, that either at the time he gave the earl the mortal wound, or at any time before, he was in periatlo vitee con/ihutus, thit part of the pannel's defence, jn (o far as it is founded upon fclf-defence, will likewife fall to be repelled. It was, in the next place, pleaded for the pannel, that al- though, in this pafe, he had exceeded t\\z moderamen inculpata tiite'es^ either in defending his liie or property, that yet he could not on that account be fubjefled to the pasna ordinaria, but that he would only fall to be punifhed, quoad fxce//um 9 with an arbitrary punifhment. But, with all fubmiffion, there are not, in the prefentcafe, termini habiies for this queftion. For, in order to intitle any man to plead fclf-defence to any effect whatever, he muft be able to qualify, that he was inpericuio vita tonftitutus. If a per- fon was truly in imminent hazard of his life, and the queftion was, whether he could have extricated himfclf out of that danger, without taking away the life of his adverfary, the pannel might, in fuch cafe, plead with fome degree of reafon, that when his life was truly in imminent danger, and when he had killed, in order to relieve himfelf out of that danger, he ought not to be punifhed with the pains of death, becaufe it was pofilble he might have extricated himfelf, without go- ing to the extremity of killing the perfon who threatened his death ; but, as it has been already fhown, that the pannel was at no time in the fmalleft hazard of his life, or had the Jeaft reafon to apprehend, that any degree of violence would be committed againft h'S perfon ; and as, on the other hand, the perfon whom he killed had threatened him no harm or violence, and was, at the time, unarmed, and totally de- fencekfs, it is impoffible that there can be any room for enquiring whether, or how far, the pannel had exceeded the moderamen inculpates tute!een confidered as a robber making an attack upon the pan- ne^ with a felonious intention of robbing him of his pro. r 9* J property, there might, in that cafe, have been room for the queftion, whether the taking away of the earl's life was an a that the law made a diftin- ff- sd legem Cornellam deficariis." Here the law does not require, that premeditated malice mould be proved ; but where death hap- pens, by a wound given with a lethal weapon, the law has laid it down, that it is to be prefumed that it was done with a fclo- [ 95 1 a felonious intention ; and, as therefore, it muft be con- ftru&ed as voluntary flaughter, done dedita opera, the adtor ought to be punifhed capitally ; and it was fufficient that the ftroke was given with a murderous intention, although that intention did next take its rife from premeditated ma- lice. This doctrine is accordingly clearly laid down by Voet. ad leg. Corn, de fecariis^ 9. circa med. Afte fetting forth, that the hufband who killed his wife found in the aft of adultery, was not to be punifhed capitally, he proceeds in the/e words : ** Cumque hoc ita in marito, per graviffimam adulterii inju- riam concitato, jure fingulari conftitutum fit, aut fubito atque fponraneo irse impetu concitatos, aut injuria leviore ad iracn commotos, atque ita adverfarium occidentes, porrigendum non eft ; fed potius ad ordinariam hi legis Corneliae pcenam revo- candi forent. Licet enim diftincla hasc fmt, impetu et pro- pofito delinquere, non tamen ideo illi qui imrjttu delinquunt, extra dolum funt; quod uti probatum antea de Sis qui per ebrietatem peccarunt. Ita etiam in illis, qui iracundise calore ftimulati, caedem perpetrarunt, verum eft, dum et in ira, ne- que judicium, neque afienfus animi, neque voluptas, deeft." Your lordfhips will Hkeways obferve, from a paflage former- ly recited from the fame learned author, that no provocatioa by words is fufficient to excufe a paena ordinaria ; and it is extremely plain that homicide committed upon fuch provoca- tion is underftood to proceed from a fudden heat of paffion, and not from premeditated malice. The /. i. 3-^ <^d kg- Corn, de ficariis y was appealed to on behalf of the pannel. It is in the following words : " Divus Hadrianus relcripfit, eum qui hominem occidit fi non occi- dendi animo hoc adaiifit ablolvi pofle; et qui hominem non occidit, fed vulneravit aut occidat pro homicida damnandum et ex recondituendum hoc, nam li gladium ftrinxerit, et in eo percuflerit, indubitate occidendi animo id eum admififle. Sed fi clavi percuflet, aut cucuma in rixa quamyis ferro per- cuflerit, tinmen non occidendi animo, leniendam pcenam ejus, qui in rixa cafu magis quam voluntate homicidium admifit." And they further appealed to /. i. cod. dift. tit. which is in the following words : " Frater vefter redtius fecerit, fi fe prsefidi provinciae obtulerir, qui fi probaverit non occidendi animo hominem a fe percuflum efle, remifla homicidii poena, fecun- dum difciplinam militarem fententiam proferet. Crimen enim contrahitur, fi et voluntas nofcendi intercedat, cceterum ea quae ex improvifo cafu potius quam fraude accidunt, fatople- rumque non noxe imputantur." But it is, with fubmiffion, inconceivable how the pannel can expect to receive any aid from thefe authorities : on the con- trary, C 96 J trary, when they are duly confidered, they eflablifti] the very doctrine which the purfuers are endeavouring to maintain. Your lordfliips'will obferve, that the ideas of the Jewi/h law, shove ftated, are here adopted. Where the perfon killing, ftruck with a weapon from which he had no reafon to appre T hend that death would follow, and where no previous enmity betwixt the parties did appear, or could be alledged, fo that', upon the whole, no intention to kill could be prefumed, the law hath faid, that in fuch cafes the punilhment ought to be mitigated; but then the -very fame law hath faid, that where the perfon ftruck with a lethal weapon, malice and intention to kill muft unqueftionably be prefumed, " fi gladio percuf- ferit, indubitate occidendi animo id eum admifiire." And as in this cafe the pannel killed the earl by pouring a loaded muficet into his bowels, it is impofTible to doubt, and the law does prefume, that it was done with the felonious intention of bereaving the earl of his life -, and, of confequence, nothing lefs than a capital punifhment can, with any fliew of reafon or juftice, be inflicted upon him. The purfuers fhall not trouble your lordfhips with running over any of the other authorities that were ftated for the pan- nel upon this point. What has been faid affords a fufficient anfwer to all and each of them. They only refpedt the cafe where homicide is committed in a fray ; and where, from the weapons that were ufed, and the circumftances of the cafe, it does not appear that the party had an intention to kill ; the very contrary of which was clearly the cafe of this panne!. With refpecl to the law of England, after what has been already faid upon another branch of the defence, it will be unnecefiary to trouble your lordfhips with much more upon it. The purfuers apprehend, that the law of England is clearly againft the pannel upon this point; and that, were he to be tried in England, and the indictment proved againft him, he would be found guilty of murder, and punilhed with the pains of death. The law of England has fo far interpofed in favour of human frailty, that where a perfon, in a fudden tranfport of paffion, upon juft provocation received, kills his neighbour, the fame is differenced from murder, and is only to be pu- nifli?cT as man-daughter. But your lordfhips will obferve, that taking the facls even as ftated by the pannel, he cannot poflibly bring himfelf under that predicament. It from thence appears, that it was not in the heat of pafiion, and in refcnt- ment of provocation given, that the earl was killed ; but, on the contrary, it does appear, that the pannel was perfectly matter o.' himfelf upon the occafion j that he accordingly. Tor focne [ 97 3 fome time, retired from the earl with the mufquet prefentecf, and ready to be discharged ; and that it was upon the earl's approaching near to him, that the pannel killed him, in profe- cution of a determined purpofe and refolution, upon no ac- count to quit his gun. It is a queftion toft by the writers upon the law of England, what time may be prefumed fuf- ficient for a man to cool, fo as to render the crime wilful and intentional murder ; but there is no room for that quef- tion here, as it is clear from the pannel's own fliowing, that he was never heated ; that he was all along perfectly mailer of himfelf, and that the acl: he committed was not the refult of his being overcome by a fudden guft of paflion ; but that it was truly the refuJt of a fixed, determined, and deliberate purpofe. Every cafe muft be determined upon its own circum- ftances; and it is humbly fubmitted, if the circumftances above noticed, all arifing from the pannel's own ftate of the fats,are not fufficient to bring the crime according to the ideas of the law of England, under the denomination of wilful murder. But, 2 Q . your lordfhips will oMerve, that, independent of thefe confiderations, an eflential ingredient is here wanting, in order to render the crime manflaughter. The only pro- vocation the pannel is alledged to have received, was merely verbal ; the earl was all the time, unarmed, and never touched the pannel's perfon. This circumftance alone is, by the few of England, fuf- ficient to .render this crime murder, and not manflaughter. If the earl had made an aclual aflault upon the pannel's perfon, and if a tuilzie had thereupon enfued, and the earl had been killed, there might have been a pretence for pleading, that the pannel, by the law of England, would only have^ been guilty of manflaughter. But it appears from the authority of Mr. Juftice Fofter, Blackftone, and Hawkins, dated in a former part of this information, that no verbal injury, how- grievous foever, is fufficient to free the party killing from the guilt of murder, if the death was occafioned by a lethal wea- pon. If the perfon provoked by a verbal injury fhould, in return thereof, have {truck with a weapon not likely to kill, an intention to kill could- not neccffarily from thence be in- ferred; and the killing in fuch cafe might be ruled man- flaughter only. The Jaw of England, in this particular, feems to be founded upon the very fame ideas with that of the Jews and of the Romans, already mentioned. But, where the wound is given with a lethal weapon, as in this cafe with a gun, which muft neceflarily prefume an intention to kill, ftie cafe, by the law of England, would be ruled murder, becaufe no verbal provocation whatever is fufficient to free the party from the guilt of murder ; and fo where, O upon C 98 3 upon a verbal provocation, homicide happens, and where the killing appears clearly to have been intentional, the law in fuch cafes rules it to be murder. Sundry cafes might be ftated from the law of England, for illuftrating the difference betwixt murder and manflaughter; but it will be unneceflary to trouble your lordfhips with any of thefe in the prefent cafe. The general principles above laid down are uncontroverted, and are clearly fufficient for determining the prefent queftion. It was, in the laft place, maintained upon the part of the pannel, that the diftine but- P 2 end C 108 ] end of it : and the court, upon advifmg mutual informations, pronounced the following judgment : " Find the Taid Wil- liam Hunt, pannel, his going behind Macmillan, the defuncTs back, while ftanding peaceably in the ftreet, without arms, and knocking him down, by a ftroke upon his head with the hut-end of his mufquet, whereof he died next day, re- levant to infer the pains of death, and confifcation of move- ables ; and find this defence, viz. that there being a tumult in Dalkeith, in which fome of the dragoons were maltreated, or trodendown ; and the pannel being upon the guard under duty at the time, was commanded out for quelling the faid mob and tumult, and relieving the dragoons ; and that the defuncl, Macmillan, having been in the rabble and tumult, which attacked that party of the guard commanded out, or any of them, before the ftroke was given, relevant to afibil- zie the $*n&dfyipKcittr t and elide the libel; andfeparatim find, that the ftroke being given in rixa, or a tumult, where the defunct was author of the tumult or rixa himfelf, or that the ftroke was given in defence of the pannel, or any of his fellow-foldiers, when attacked, relevant toreftrift the libel to an arbitrary punifhment." It is humbly fubmitted to your lordfhips, with what pro- priety this judgment is appealed to, in order to eftablifh the gtneral proportion maintained by the pannel, viz. that wilful homicide, if committed on fuddemy, without premeditated malice, is not punifhable with the pains of death. If the purfuers rightly underftand the cafe, it proves the very re- verfe; premeditated malice was not fo much as libelled ; nor was a fingle circumftance condefcended on in the indiclment, from which forethought felony could be inferred ; and yet the libel, as laid, is found relevant to infer the pains of death. Nor does the latter part of the judgment in the leaft im- pugn the doctrine maintained upon the part of the purfuers, The*judgment reftricling the libel to an arbitrary punifh- ment, is laid upon this, that the defuncl himfelf was the auiot rixa^ and there fccms to be little doubt that the judgment is founded in law. When the defuncl himftlf had railed a mob, who where beating and abufing the foldieis in a cruel and barbarous manner, to the effufion of their blood, it would have been a hard his cxpence ; but [ 5 1 the fportof hunting, however agreeable anrlfuitableto himin his youth, he found, when keenly purfued, was too fau^uing for a man of his years, and of his valetudinary ftate t;f health, which, however, was benefited by the moderate ufeof (port. Thefe licences how with what juftice the panel has been re- prefented as a common fowler or poacher. He never fold a bird in his life ; the little game he killed, he was in ufe fome times to fend in prefents to his friends and acquaintance ; for the moft part he gave it to the firft poor perfon he met with : but, as is already faid, he was not much addi&ed to that exercife. He (pent his time in faithfully difcharging the duty of his office, in reading, and in company with the gentlemen in the neighbourhood, or of fuch as came to viftc the places in which he relided ; for, however he may be now mifreprefented, he was always the man a liranger was di- rected to fpend the evening with, on account of his com- pany and converfation. The panel's la(t ftation, as has been already obferved, was at Saltcoats, the eafieft perhaps in Scotland. .Some- thing more than a year ago he was apprehenfive that he would be obliged to exchange ftations with one Mr. Scott, . by the Hitereft of the collector of the diftrit, who, was defirous of placing Mr. Scoit, a friend of his, who had for- merly been a fupervifor, in the eafy llation of Saltcpa||. His powerful intereft the panel imagined he could not <- >- po(e, without making a greater buftle, and employing more felicitation with his numerous friends, than hisnatuial tem- per inclined him to; he therefore refolved to p,ive up his, office, and rake a farm, fuch as the fmall fum he had faved could flock, provided cne of that extent could be hat! in, or on the confines of Ayrihire. For this puroofe, he wrote to his intimate frieud the Rev. Mr. Andrew RoO, fome- time minifter at ^Jew-Mills, now at Inch, near Stranracr, acquainting him, that he had faved about icoi. that he was defirous of retiring to the country, and therefore in- treating, that he would look out for a fmal! fpot, fuch as but a!fo grant the faid Mr. Campbell himfclf, full power, to take what divcr- fion he pleafes for himfelf, upon water or Lnd j and this (hall be a fufficient warrant for fo doing HUGH CAMPBELL. Thcfe are impowcring and authorifin? you, Mungo CumpbcJ!, oSc.tr of excife, to hunt upon my muir in Miyrkirk, with tlog and gun only; a; d to inform me of any poacher you lhall fee hunting upon faid muir; and this ftiall be your warrant. Given under sny rniul, at London, aJSth J<:ly, 1764. LOUDOM. his C 6 ] his fcanty flock would be able to cultivate. This Mr. Rofs would have done, and had the panel got a farm, the unhappy accident that gives rife to this triai would not have happened ; but unluckily, the panel's rival, Mr. Scottdied, after which there was no mention made for removing the panel from Saltcoats j and there he remained till the fatal 24th of October. The panel is very fenfible, that the detail he has given will, at firit fight, to fome appear trivial and impertinent ; but a very little reflection will convince them it is not fo ; for the panel has been egregioufly mifreprefented as to all the particulars above mentioned. Never almoft againft any nan were the tonpues of clamor and calumny fo loud, fo abufive, and fo falfe. The reafon is indeed obvious, and n account of fome circumflances, the panel is ready to for- give them, but he would have been wanting to himfelf, confidering how unjuftly he has been traduced, if he had not fet forth the true tenor of his life and converfation j for from that it is evident, he is not the obfcure gauger, the difgraced foldier, the common poacher, or the fierce and ferocious ruffian which prejudice has reprefented him to be. On the contrary, he is, and he always was, a man of a peace- able difpofuion, of much humanity, and fcniibiiity of tem- per. The fadb he has ftated above are true. Thofe in this country, who will give themfelves the trouble to enquire, will find them to be fo. The panel is above telling what jfc not truth. To die in any way is a ferious matter. To die in the manner with which he is threatened is dreadful; but the panel is not fo much afraid of death, in any fhape, as to be willing to purchafe life at the expence of a lie de- liberately and judicially told. When therefore the circum- ftances in which he {lands are confidered, the fimple annals of his life will be read by the juft with attention, by the humane with fcelling,nor{hould grandeur itfelfperufe them with difdain. In the courfe of the above narrative, the panel might have mentioned fome occurrences, on which he had occafion to meet the late Lord Eglintoun ; but he chofe rather to de- Jay them, till he came to fpeak of the 24th of Oclober, though they have no immediate connection with what hap- pened then. The panel, as already faid, though he had licences to hunt on the lands of feveral noblemen and gen- tlemen, yet he feldom took the beuefit of them. This was particularly the cafe from the year 1765, before which he loft his health, and was obliged, on fundry occafions, to go to the country to attempt the recovery of it. With this f 7 ] this view, he in particular went toMuirkirk in 1764.- Before he went there, he had a licence from Lord Loudon, and feveral neighbouring gentlemen, to hunt upon their grounds, in that part of the country : but thefe he fcarcely ever ufed j for at Muirkirk he broke his leg, by which ac- cident he was long confined to the houfe. This determi- ned him to fell his pointer, and he has never had any dog fince. He came to Sahcoats in 1,766. He bad no dog when he came, nor has he ever had any fince. He indeed kept hii. gun, and it was neceffary for him to do fo, as the fmugglers in that part of the country, \vhofe detection was his bufi- nefs and duty, always go armed. With this gun he would fometimes fhoot fparrows and other birds, at the defire of the people whofe corns they infefted, and fometimes (for his amufement) gulls, as hepaft^alon^ the fea fliore. But with his gun, he gave no offence whatever for two years to Lord Eglintoun, who was extremely ftricl: in theprefervation ef the game on his eftate. Nay, fo anxious was the panel to avoid even all poffibility of offending his Lordfhip, that, when he publifhed an advertifement, prohibiting all perfons to fifh on the water of Garnock, he complimented a gentleman * of his Lordfhip's acquaintance with a very curious and valu- able fifhing-rod that belonged to him. Thusfor two years, he gave not the lead offence to the late Lord, who, though he was every now and then holding court?, and fining of- fenders, never once cenfured or even fufpeited the panel. However, in fpring laft, he did trarifgrefs once, and he will fairly tell how that happened. The panel fet out that day in fearch of fmuggled goods, and had along with him Robert Cuninghame and William B >Iton, fhipmafters in Saltcdats, witneffes cited for the pro- fecutors, and in the courfe of their walk fhot two gulls. -On their return homewards by the King's high-way which runs near to Park-houfe, a farm belonging to the late Lord Eglintoun, a hare ftarted out of a.bufh at the fide of the highway, on which the panel and his companions were travelling : upon this the panel, partly from furprife, and partly pofiibly .from the inftigation of thofe with him, ook aim, anJ fhot her. The report of the gun was heard by Lord Eglintoun, who was then at Park-houfe, and he immediately difpatched a fervant to enquire about it. The fcrvant (whofe name the panel has forgot} came up to the r.Ir. Leitch of GLfgow. [8] panel, who candidly told the fact as it had happened. That fervant went back to his Lordfhip, and foon after another fervant, one Alexander Bartleymore, returned to the panel, and told him, that his Lordfhip was in a great paffion, and that the panel Ihould go and pacify him. Accordingly the panel went up to his Lordfhip, who accofied him with ma- ny harfli and injurious expreflions, accompanied with many oaths. To thefe the panel anfwered, that it had never been his intention to hurt his Lordftiip's fport; told him the fa<5t hpneftly as it had happened; and afked his Lordftiip's par- don, afluring him, that he would take care never to offend again ; and thus they parted. His lordfhip did not at this time demand the panel's gun, nor does the panel believe he ever would have done (o, had he not been infiigated to life the panel ill by the above-mentioned Bartleymore, for a reafon that will by and 'by be explained; for his Lordfhip knew wh' the panel was; knew that he was no poacher; knew that he was a gentleman, and, as fuch, had fome in- tercourfe with him; particularly once d:d him the honour to take the tife of a dog from him for fome time. What in all probability gave rife to the fatal accident, v;hich occafions this trial, was the enmity the above-men- tioned Bartleymore conceived againft the panel ; the rife of Which was as follows. On the 3d of July lair, the panel had information, that fome fmuggled goods were to be landed near Caftlecraigs, a noted haunt of the fmugglers; upon which the panel, ac- companied with John Biown, tide- water, ancFjames Mac- donald, falt-cfficer, fet out early next morning in queft of them. They found the abovementioned Alexander Bart- leymore (a favourite fervant of the late Lord) driving a horfe and cart towards Park-houfe, loaded with fome cafks containing 80 gallon* of rum; upon which they feized the rum, horfe and cart, and carried them to the excife-office at Irvine. But the horfe and cart, being fuppofed to be Lord Eglintoun's, Bartleymore was allowed to take back; and they were not brought to condemnation along with the fpiiits. From that moment Bartleymore became a de- clared enemy to the panel, Whether the late Lord heard of this feizure or not, the panel cannot fay; far lefs does he mean to infmuate, that his Lordfhip had any concern in the adventure; or, though he had, that the feizure of it would have irritated his Lordfhip againft the panel, who did no more than his duty in laying hold of it: but the paoel has no doubt, that this feizure made Bartleymore his deadly foe, and [9 j and prompted him to inftigate the late Lord his mailer t attack the panel, in the manner he did on the 24th of O&o- bcr laft ; to the account of which unhappy affair the panel muft now proceed. In thefprenoon of that day, about ten o'clock, the above- mentioned Mr. Brown tide- water, and the panel, fet out from Saltcoats j their view was principally to examin.9 feveral places that are the known haunts of fmugglers ; at be fame time they meant to do this in away that might kftord themfelve fome amufemcnt ; for which purpofes they propcf- edto walk from Sa4tcoats to Montfod sank, by a common road that led through lord Eglintoun's grounds, and return by another along the fea-fliore; on wh'ch the places noted for fmuggling are fituated. They had no dog with them , fo it nei- ther was nor could be their intention to hunt. Mr. Brown had not fo much as a gun. The panel indeed carried his along with him, as he commonly did. He had, as already faid, a li- cence from Dr. Hunter, but Jie had no occation for it at thil time, as all he prop j fed vas to look for a woodcock in Mont- fod-bank, and the woodcock is not a bird cf game; but as for hunting, he neither meant to take that fport, nor could he do it, as he had no dog, Mr. Brown, and the panel proceeded accordingly in their courfe, from Saltcoats to Montfod, which is about three miles diftant from Saltcoats. The road they took pafles through the grounds belonging to Lord Egiintoun. Dr. Miller, and Mr. Weir of Kirkhall; ( r ee the plan annexed) fome part of which road is inclofed on both fides, fome part of it only on one fide, and lome part of it is intirely open.; and in this walk they met withno body but Alexander Boyes, an officer of excife, who accompanied themfofar ingoing round his dtvifion, and to him they communicated their propofed rout. When arrived at Montfod, they fearched the wood for a cock, but f<>und none; upon which they went t6 the ex- tremity of Montfod, which is high ground, in order to get view of t^e ilorfe-Iua.id, under the cover of which fmug- glers where in ufe to lie: but perceiving there were none there, they returned by the foot of Montfod-burn, a common hai.ot of tmugglers, and they croffed, by a fl v rt cut, a neck of marfliy ground not inclofed, near New-houfe, which to them was known to be a hiding place for fmu^-jled goods, am bus entered up >n the lands leading to Caftfecraigs, the molt remark, ble place of r.ll Jo fmuggling. A'ter they had thus got into tne lands, and had walked along them a confiderable way, the above-mentioned Bart- B C ' 3 Jcymore thought proper to inform the late lord Eglintoun, his matter, that the panel had been hunting on his grounds and this his lordfhip it feems believed; for he immediately came out of his coach, in which he was paffing. on the road from Saltcoats to Largs ; and mounting a horfe, he rode, attended by feveral fervants, towards the panel, who was at that time, and for a confiderable time before, 36 yards within the flood mark. When his Lordfbip had come near to the panel, he dif- mountcd, and gave the horfe toone of his fervants, and then, damning the panel for a fcoundrel and a rafcal, afked how he came to be hunting upon his grounds, and required him inftantly to give up his gun. To this the panel anfwered, that he had not been hunt- ing on his Lordfhip's grounds : nor had he fhot any thing that d^y any where elfe ; nor had he done any thing that de- fej ved hi? Lordfhip's difpleafure, which he was forry to fee he had incurred ; but that if his Lordfhip fhould ftill think that the panel had done any thing wrong, his Lordfhip might fue him at law, to which he would be anfwerable: but as for giving up his gun, that he would not do to his Lordfhip, nor any man upon earth. All this however did not fatisfy his Lordfhip, whoperfift- ed in demanding the gun, and advanced upon the panel in or- der to take it from him by force ; which his Lordfhip would have eafily effectuated, if he had got hold either of it or the panel, as he, was the younger and the ftrongerman* The panel upon-his ftepping backwards, repeated his refufal to give up his gun, which was cocked, and held it by his fide in a defenfive pofture, as an indication of his firm purpofe to preferve it ; warning his Lordfhip, at the fame time, in the ftrongeft manner riot to attempt to feize it. Lord Eglintoun upon this, perceiving that the panel was refolute, and determined not to part with his gun but with his life, ordered one of his fervants to go and fetch his gun, which had been left in the coach, faying at the fame time to the panel, he would fhow him he could {hoot as well as he. The fervantwent off for his Lordfhip's gun accordingly. This fo much alarmed Mr. Brown, the panel'scompanion, that he inftantly retired to a confiderable diftance. In the mean time his lordfhip continued advancing, and the panel retiring, and refting his gun in the defenfive pofture in which foldiers are taught to keep their mufkets when they ictreat. Upon a meafurement, it appeared that the panel retired 1 20 yards from the place where Lord Eglintoun firft aflaultedhim. Lord . Lord Eglintoun's fervant, who had been fentfor the gun* was by this time within two or three yards of his mafter, with the gun in his hand. At this moment, the panel, while retreating, ftumbled againft a ftone, and was thrown with violence on his back. As the piece was cocked, while in the panel's hand, the (hock of the fall, or his efforts to recover himfelf made it go off, and by its difcharge Lord Eglintoun, then fo near as to be giafping at it, was mortal- ly wounded. - As the piece was cocked in the panel's hand, it is phyfically impoffible, but that the impulfe of the foil the pa- nel received, or his efforts to recover himfelf, muff, have made it go off. The indictment charges the panel with firing it intentionally. Did the panel know it to be true, that an acl of his will occasioned the difcharge of the piece, or concurred with the natural impulfe of the fall, or his ex- ertion to rife, he would admit it, be t,he confequence what it would; but he cannot admit that to be a fadt of which he has no confcioufnefs or recollection. The panel, who was in the urmoft confufion, had no time to go up to my Lord to enquire into his fituation, and be- wail the unhappy accident, which he mod certainly would, othcrwife have done, for he was immediately attacked with the utmoft violence and fury by his Lordfhtp's fervants": it was natural for them to do fo, and the panel does not blame them for it. One of them defperately cut and wound- ed him in the face, and as the other had the gun, the panel got hold of if, to prevent his ufing it againft him, and en- deavoured to wreft it out of his hand, but that he was not able to do, as others fell upon him. The fervants, after giving the panel a number of cuts and blows, proceeded to tie his hands behind his back with cords, which they pulled fo hard that the blood was ready to fpring from the tips of his fingers. Lord Eglintoun was then put into the coach, which went home, and one of the fervants, on horfeback, drove the panel with a cudgel, to Saltcoats, threatening inftantly to knock him down if he made the fmaHeft attempt to run off. The panel remonftrated much againft fuch mal- treatment, and affured him he would go willingly along, and readily fubmit himfelf to juftice. This fervant, at Saltcoats, 'was joined by a number of poor people, dependents upon Lord Eglintoun, who vied with one another in infulting the panel. From Saltcoats he was carried to Irvine, before Mr. Hamilton, h'u hands B 2 tied I I* J tied behind his back, his face ftreaming with blood. Mr. Ha- milten, who is the provoft of that borough, committed him to tht pnfon there, where he met with the moft bar- barous treatment ; was put in irons, and was refufed, du- ring his flay in it, even the neceflaries of life. From Irvin he was tranfported to Ayr in a cart, which was the moft ignominious method of conveyance that occurred : and at Ayr he was put in irons. From Ayr he was carried to Glafgow, where the jailor, from compaffion, allowed him irons lighter and lefs galling than thofe he had been loaded ymh at Ayr ; but for this ftcp a proteft, it is faid, was ta- ken againft that jailor. From Glafgow the panel was brought to-Edmburgh, whert ;^is irons, unlawfully put on, v/ere taken offj and there he was brought to trial, -and hitherto has had, and he hopes all along will have, a fair and a patient hearing. Tne in, 4 i&me2it charged, * That whereas by the law of Go'i , and the laws of ihis and every other well governed realm, murder, or the fclonioufly bereaving any of his Majefty'* f:hj cT of their lives, is a moft atrocious crime, and i" v rely punifnable; yet true it is, and of verity, Thai you the faid Mungo Carnpbel, have prefu- med to commit, and are guilty, adtor, or art and part, of the faid crime: in fo far as the (kceafed Alexander tarl of Eglintoun having, upon the 24th day of October, in this piefent year 1769, or upon one or other of the days of that month, or of the month of September pre- ceding-, or November following, gone out frwm his houfe of Eglintoun, in the county of /ij'r, in his coach, to look at fome of his grounds; and being told by one of his fervants, when upon the roid from Sahcoats to Souther- man, within the panftj of Ardroflan and faid county of Ayr, that he obferved two perfons, one of them with a gun, at a fmall diftance, upon his lordfhip's ground of Ardroflan : The faid deceafed Earl (who, by an advertife- ment in the newi'papers, had forbid all unqualified per- forrs to kill game within his eftate) came out of his coach, * unarmed, and mounted a horfe which, was led by his ' fervant, and leaving in his coach an unloaded gun, he ' rode towards the two persons, who, in the mean time, 6 went off the Earl's ground of Ardroflan into the adjacent ' fands ; and he having come near to the two perfons on * the faid fands, and difcovering the one with the gun to * be you, the faid Mungo Campbell^ he acceded you by ' faying, " Mr t Campbell, I did not expect to have found you r n i tc yoa fo foon' upon my grounds, after the promife you " made me when I laft catched you, when you had Ihot " a hare:" And the earl having thereupon defired you to ' deliver your gun to him, you refufed fo tedo; and, upon * the earl's approaching towards you, you cocked your gun, ' and prefented or pointed it at him : and upon the Earl's ' then faying, Sir, will you (hoot me? you anfwered, that ' you would, if his loidfhip did not -keep off. To which the Earl replied, That if he had his gun he co'.Jd {hoot ' pretty well too, or ufed words to that import ; and defi- ' red a fer.'ant to bring his gun from his coach, which * was then at fome diftance; and the carl having dif- ' mounted and wa'ked towards you, leading his hor r e in ' his hand (without arms or offenfive weapons of any kind) * you retired, or ftept backward^, as he approached, and * continued to point your gun at him, defiring h;s lord- * fhip a^ain to keep off j or, by God, you Wf aid (hoot him : * and a levant near to the Earl having begged of you, for * God's fake, to deliver your gun, jou again retufrd, fay- * ing, \u had a right to carry a gun : To which Lord * Eglintoun anfwered, that you might have a right to car- ' ry a gun, but not upon his eftate, without his liberty ; * but you I'ill perfifted in icfulir.g to deliver your gun; * and by ftriking your foot againit a fmall ttone, having c fallen upon your back when retiring, and keeping your ' gun pointed at Lord Eglintoun^ as above defcribtd, the * m-izxle of the gun c*me thereby to be altered in the * direction from Lord Eglinisun, and to be pointed near * ftraight upwards ; anu L.TC! Eglintovn^ who was only di- * ftanc from you two or three yards n^ving ftopptd, 01 itood * ftill, upon your falling, you, as OTI as you could reco- ' ver yourfelf, and reiting upon your arm or elbow, aimed ' or pointed y ur gun t' the /aid Alexander Ea ! of Lg. -/- ' toun^ and wickedly ar.i fekmiouflv red u at , M ., -.-en < ftandmg ananned, fm-'sn^ at vour accidental fail ; at a by the (hut he was wounded in the beily in a dreadful n an- * ner, the whole lead-dot in the gu/i ha^in^ b>en thrown * into his bowels, of which wound the fold Alexander Earl * of Eglintoun died thai Anight bout twelve o'clock. And ' you, the laid Munga Campbell, after perpetrating fo cruel, * wicked, and barbarous a crime, did immec ately run to * one of Lord Eglintoun s fervants who had brought his ' gun from his coach, and who was ira -ding at fome di- * ftances, and endeavoured to wr&ft the gun fr<.rn Jum, but * was prevented by the affiftance of anwthr lervant ; and * when r H i ' when the two fervants were engaged with yeu, defending * the gun, and endeavouring to fecure you, the earl, who ' was then fitting on the ground, called to the fervants to ct Secure the man, for he had (hot him; but not to ufe " him ii 1 ;" or ufed words to that purpofe or effect : and c upon your being brought near to Lord Eglintoun^ he faid * to yourfelf, " Campbell, I would not have (hot you." The court, after this indictment was read, obferved, that there might be feme doubt of their jurifuiction, as it appear- ed, from the indictment, that the facts charged had hap- pened on the fands; and the Lord Advocate being afked whether they had happened within flood-mark, his Lord- Ihip admitted that they had ; upon which the court having demurred as to their jurifdiction, and exprefled a doubt that the trial fhouid have been b?fore the Admiral, the queftion of the jurifdiction was argued at great length by the coun- fel on both fides * ; upon which the court ordered minutes of debate to be made up, and adjourned for fome days. Thereafter, of this date f, the court pronounced the fol- lowing interlocutor, upon the queftion of jurifdidlion. ' The lord Juftice Clerk, and Lord CommiflSoners of Jufticiary, having confidered the debate, viva vice, at their laft federunt, and foregoing minutes, They find, that the court has jurifdi&ion to try this indictment, in the ritft inftance, and therefore' declare, that they will pro- ceed accordingly.' Upnn this the indictment was again read over to the pa- nel, who pleaded Not guilty ; and then counfel were heard at great length for two days, upon the queftion of the re- : cy ; after which, the court ordered informations, and, in obedience to that appointment, this one is fubmirted on the part of the pane!, who defigns himfelf late excife of- ficer in Saltcoats, becaufe he has been turned out of his office unheard and untried. In ftating the defence of the panel, it is necefiary, in thef firft place to analyfe this indictment, and call the attention of the courts to a variety of facls therein acknowledged, or to fpeak plainly, to the different injuries it admits the panel received from the deceafed Lord. And ill, it will be obferved, that f'ic indictment admits feveral verbal injuries to have been received by the panel from the deceafed ; it indeed decs not fet forth the injurious appel-' lations of fcoundrel and rafcal, or the abufive cuifes and oaths, with which, as already faid, the panel was loaded : v * Dec, 18. 1769. f Dc. 22. 1769. but [ 15 1 tot yet it admits verbal injuries to have been given by the dcceafed ; for, it fets forth that the deceafed charged the panel with hunting on his grounds, and hunting in breach of promife ; as alto, that the deceafed demanded the panel's gun, which, it is notorious,, is always under/food to be a demand the moft injurious and affronting. 2dlv, The indictment admits, that from verbal injuries, Lord Eglintoun proceeded to real^ by advancing upon the panel, and endeavouring to take his gun by force j that is, transfer the property of it to himfeif f.om the panel violently. 3dly, The indictment admits, that the deceafed threaten- ed to fhoot the panel, and lent one of his fervants to fetch his gun, which was hard by, for that purpofe. His, Lord (hip's ex- preffion, that if he had a gun he could fhoot pretty well too,' which the indictment admits, plainly imports fo much, and the fending for the gun can bear no other confiruction, and leaves no room to doubt; and accordingly, that fuch was his Lordfhip's intention the remaining lervant under- ftood, and was therefore alarmed for the panel, and called out to him as the indictment fets forth, ' for God's fake to ' deliver up his gun.' 4thly, The deceafed perfifted in advancing upon and aflaulting the panel, who retired as his Lordfiiip came on. 5thly, The panel, while retiring, was thrown upon his back ; and it was then, and not till then, according to the indictment itfelf, that he fired the piece. The next thing to be coniiuered is the conduct of the pa- nel on this occafion. It will be obfervcd, ift, That it is admitted in the in- dictment, that if the panel did fire this piece, he. did it not till after he had given the deceafed fair warning of his danger, both by words and actions. 2dly, That the panel retired from before his Lord&ip for a confiderable time and fpace. 3dly, That if the panel did fire his piece, he did not fo till he could retire no more, till he was diiconcerted, agi- tated, and provoked by a fail occafioned by the unjuftifiable aflault of the deceafed. 4thly, That the panel had no other weapon to defend him but his fowling-piece. So iranding the far, even according to the (hewing of the indictment itfelf, the queftion comes to be, 1 Whether the honicide that is charged was murder, or culpable homicide, /. e. Manflaughter, or homicide in felf defence. " This C 16 ] This is a great and important argument in every view. It is of the utmoft confequence to the parties, to this court, and to this country. It is of importance to the noble profe- cutor, to avenge his brother's blood; it is of ftill more im- portance to the panel to avoid an ignominious death. But it is of the greateft importance of all to this court, and to this'country : for, from the high rank of the deceafed, and other circumftances, this is a trial of much expectation. The eyes of this nation, of our neighbouring nation, and perhaps the eyes of mar y*i.i foreign nations, are, fixed on thofe who are todecideit. hJefides, it is obvious, that the great rights of mankind are the object of judicial difquifition, fo that in af- ter times, future lawyers, and future judges, will refort to the record of this trial for inftru&ion and example. Hence all the confiderations that can touch men of honour confpirc to make thofe whofe duty it is to form an opinion upon this cafe, not only to givethe clofeft attention, but to examine themfelves thoroughly, and fearch their hearts to the very bottom, to prevent from lurking there certain prejudices, to fome of which, as men, and to others of which, as good men, they muft be liable. The panel means, that they ihould take fpecial care to banifti from their bofoms all pre- judices, arifing from refpeft to the high rank of the de- ceafed, regard for his perfonal worth, and remembrance of his friendfhip paft. The firft point to be difcuffed in this argument is, Whe- ther Lord Eglintoun had a right to take the panel's gun from him by force. The counfel for the profecutor, in their pleading, and in the information they lately exhibited, have not pretended that Lord Eglintoun had anyfuch right by the common law; they endeavoured to fupport it by a paffage in one of the game-laws *. But the panel is hopeful he will be able to (how, heyond all poffibility cf contradiction, that, by that ftatute, game-Jaw as it is, Lore! Eglintoun had no right to take the panel's gun from him by force*. The wifdom and propriety of thefe game-laws has been all along doubted by the more fober and fenfible part of this nation. They are moft certainly a reftraint upon the natu- ral liberties of mankind, and run counter to one of their ori- ginal paffions ; for the paffion of hunting is natural and ori- ginal, as much as any other appetite ; and the reafon of im- planting it evident!y,was, that it was intended men, in their * A.& 1707. 0.13. natural C 17 ] natural ftate, (hould fubfift by hunting and fifliing: and In fair, in the uncivilized part of the globe, which is by far the greateft, men do fubfift in that way to this day, though the artificial life, which the perfection of fociety has introduced among us, makes us feekfubfiftence in a very different man- ner: but (till the paffion breaks out j and there are few if any, who have not, at fome period of their life, felt its force. Though this paffion is undoubtedly natural and original, and confequently though a very curfory reflection muft have down that it was not to be eradicated totally, however, like other natural paffions, it might have been moderated and reftrained ; yet the total fuppreffion of it is the hard tafk which thegame laws of this country have rafhly undertaken, and that with very little temper or management ; on the contrary, with fo much heat and feverity, that no difmte- refted perfon can read them without feeling his blood rife with indignation at Scottifh ariftocracy, with whofe haughty pen they have been evidently drawn. As thefe game laws ftand, were they to be ftritly put in execution, * f ew gentlemen in this country would beentitled to flioot upon their own ground ; for one of thefs laws * prohibitsall perfons whateverfrom fhooting, except noblemen and gentlemen, or the domeftics of noblemen and gentlemsn, who have above L. 1000 of valued rent, which few gentle- men in this country poflefs ; the confequence of which law, if carried into execution, would be, that the proprietor of a fmall farm, or even a gentleman of opulent eftate in fome parts of the country, muft lay by his arms, and deny him- felf the fport of hunting, however pleafing, while at the fame time, he muft behold with tamenefs and fubmif- fion his fielJs traverfed arid trampled by the footmen of a lord. Such being the nature of 'game laws, and as they are clear- ly encroachments upon the common law, and reftraints upon the natural rights of mankind, it is indifputable that they ought to be moft ftridlly interpreted. The ait 1707, is the only game-law upon which Lord Eglintoun's at- tempt to take by force the panel's gun, can with any co- lour be justified ; for the reafon juft now affigned, it ought to be moft ftridtly interpreted : but there is no neceffity for reforting to a ltrihe cognifance of any offence'in the perfon who is entitled to the penalty impofed upon it ; and it would have been peculiarly abfurd in this at to have done fo, as it gives the penalty, cuivis e popitlo^ to the greatefl vagabond or fcoundrel in the country, as well as to ,the firft perfon in it. Had the remedy been given to the proprietors of .land, the prefumption might be, that they were perfons of character, and there might have been fome realon for trufting them with an extraordinary power ; but, as the remedy in this ftatute is given to every apprehender, and confequently may be ufed by the molt abandoned arid profligate wretches, it is impoffible to believe, that the wifdom of the nation could ever mean C 2 tO [ 20 ] to make them judges, and allow them to forfeit the dogs, guns, and nets of whatever perfon they thought proper. It does not follow, from a man's being found (hooting on the ground of another, that he is liable in the penalties and forfeitures above-mentioned. It has been always held to be game law by the adepts in that fcience, and it was fo held by the late Lord Eglintoun, as appears from feveral of his 'advertifements in the news-papers, that icool. of valued rent entitles a man tofhoot not only upon his own grounds, but upon thofe of every other perfon. If therefore a man is found {hooting on another's grounds, it does not follow, that heisliable in penalties. If he has loocl. Scots of valued rent, or be the dbmeftic of a perfon who has icoo 1. of valued rent, he is notchallengeablej'he muft want all thefe qualifications, and be a common fowler, before he can befubjeited in the pe- nalties. Now how can the many different queftions, that rnay arife as to his valuation cr Nation, be determined otherwife than before ajudge ? Is every vagabond and villain in Scotland to be entitled, at his own hand, to apprehend the dogs, guns, and nets of every man he meets, perhaps the firft gentleman or nobleman in the country ? Theabfuniity of fuch an inter- pretation is grofs and glaring, nor can it be fuppofed that fuch was the meaning of the a<5i, without fuppofing, that thofe who drew it were out of their fenfes, or that it was their in- tention to fet the fubjects of this country by the ears, and in- cite them to batteries and bloodshed. It has been faid for the profecutors, that the law would have been defective, unlefs it had allowed a fummary fei- zure ; becaufe common fowlers and poachers are common- ly vagrants, who, if once allowed to efcape, cannot be eafily afterwards found out and brought to juftice. But the law is abundantly fevere, by allowing a forfeiture of the dogs, guns, and nets, even by procefs, and by adjudg- ing thofe, called common fowleis, to be fent abroad as re- cruits, if found hunting without licence : nor was there any great danger of their making their efcape ; for the gentle- men, enamoured of the game, are both able and willing enough to feek them out, if they are in the country. But though, the confequence of not allowing a fummary forfeit- ure were to be, that thefe fowlers fliould alwavs efcape, that v/ould have no weight in the argument. The queftion is what the law has faid and enacted, not what it might have enacted in order to attain the end it had in view : but from what has been faid, there can be no doubt, that thofe who framed the law in queftion, would rather have chofe that every [ 21 ] every common fowler fhould efcape, than that the power of forfeiting fummarily {hould be conferred on every appre- kender. The learned gentleman who draws the" information for the profecutor?, aware of the abfurdities into which the in- terpretation* he muft maintain runs, reprefents, that the view . or purport of the aft, was to authorife. a fummary feizure of the dogs, guns, and nets, * in order to lay the foundation ' for an after-convition in a court of juftice,' in the fame way that the officer^ of the revenue are permitted to make feizures of goods, the legality of which feizuresmay be after- wards tried at law. But there is not the lead, foundation in the ftatute for this hypothecs. It does not authorife any feizure, which word is not to be found in it from beginning to end. If it allows the apprehender to do any thing at his own hand at all, it allows him to forfeit, and cc-nfequently he is under no neceffity to bring a procef? in order 10 juftify his detention of the dogs, guns, and nets. Indeed the uiing the word forfeiture of itfelf demon Itrates, that the aft meant that legal proccfs {hould be neceflary ; for a forfeiture can only be inflicted by the fentence of a court. Befides, the allowing a feizure brevi manu^ would be juft as bad as allowing a forfeiture j for, as every perfon might feize, the dogs, guns, and nets of the beft people might be taken from them by the moft rafcally vagrants, whofe vagabond life would fecure them from detection and punifhment : nor does any analogy hold from the feizures allowed by the re- venue-law, as thefe feizures are not permitted to every ap- prehender, but can only be made by public officers, who find fecurity to be anfwerable, and who have an exprefs au- thority by the words of the itatutes to feize. The panel has only further to add, that even though it {hould be fuppofed that a fummary forfeiture was allowed by the ftatute, yet he was not comprehended under it ; for it only reaches to common fowlers, that is to fay, perfons who make a trade of killing and felling game, but rhac the panel never did : he, as has been already fet forth, never fold a bird in his life, and, inftead of being looked upon as a common fowler, he, on the contrary, had licences to (hoot for his amufement from moft of the noblemen and gentle- men in the neighbourhood, and was authorifed by them to preferve the game on theineftates, and profecute poachers; all which Lord Eglintoun very well knew. From what has been above fubmitted, it is hoped it will appear, that both the words and fpirit of the law, and every confideration of reafon and expediency, conclude ftrongly againlt i 22 j agatnft y tffe interpretation contended for by the profecutor ; and this the panel takes the liberty to aflert with the greater confidence, that a judgment in point was pronounced a good many years ago, by the Court of Seflion, in the cafe Gre- gory againft Wemyfs, which was determined 23d January, 1753, and is thus obferved in the Faculty Collection for that year : ' As Mr. Gregory, attended by one Baird, was beat- * ing about for game on the lands of Leuchars, Mr. * Wemyfs, a neighbouring heritor, came up and feized ' the fowling-piece which Baird carried ; Gregory infitted, * before the {heriff-depute for the county of Fife, that the * fowling-piece, as being his property, fhould be reftored * to him. The fheriff found, that it was unwarrantable * in Wemyfs to feize the gun libelled ; and therefore * found him liable in refthution of it, in as good cafe as when he toe. kit. ' Wemyfs advocated the caufe, and pleaded that Baird was a common fowler, and had no licence to fhoot from the proprietor of the lands of Leuchars $ and therefore that * he was within the I3th a of parliament, I, of Queen ' Anne, which provides, that no common fowler fhall pre- * fume to hunt on any grounds without a fubfcribed war- ' rant from the proprietors of the faid grounds, under the * penalty of 20 1. Scots, befides forfeiting their dogs, guns, * and nets, to the appreheruders or difcoverers. That if ' the forfeiture of the dogs, guns, and nets, mentioned * in the ftatute, had been given only to the difcover- er or other profecutor, who (hould fue for them in ' the courts of law, the purpofe of the legiflature to pre- * ferve the game would have been ineffectual ; for that if common fowlers (who are generally vagrants, their pe.- ' fons little known, and the places of their abode uncertain) 1 fhould once efcape, it would be difficult to bring them to juftice; therefore it is that the legiflature, introducing a- ' nother remedy at once more fammary and more effectual, * has permitted their dogs, guns, and nets, tobebrevi manu * apprehended, and thereby forfeited to the apprehenders ; * agreeable to which interpretation of die ftatute, the uni- * rerfal practice has been, and no a&ion of damages has ' ever been brought by any common fowler, whofe dogs, * puns, or nets have been fo forfeited. From all which * Wemyfs fubfumed, that he had the authority of law for what he had done. * Pleaded for Gregory, the words of the ftatute, appre- benders or difcoveiers^are evidently fyttonymous terms, ' and relate to a legal proiecu'.ion. Were a fummary, ap- prehenuon. C 2 3 ] * prehenfion, and forfeiture admitted, the cognizance of the ' offence Would be vefted in the perfon, to whom the benc- * fit arifing from the penalty would accrue; a regulation * fo contrary to the genius or law in general, cannot be in- 4 troduced otherways than by exprefs flatute. ' The Lords repelled the reafons of advocation, and re- mitted the caufe,' that is,- they affirmed the decree of the * fheriff.' This i? a judgment directly in point; for as to the ex- ception taken againft it in the information for the profecutors, that the gun did not belong to 1 Baird, but to Mr. Gregory, and that it does not appear from the decifion but that Mr. Gregory was qualified to kill game, it is perfectly frivolous. There can be no doubt the acl meant the guns fhould be forfeited, whether they belonged to* the common fowlers that ufe them, or not. But fuppofing it were otherways, as Mr. Gregory was hunting along with Baird, his gun was liable to be forfeited, although it had been in his own hand. And as to the obfervation, that it does not appear from the decifion, that Mr. Gregory was not entitled to kill game; it appears from Mr. Gregory's defignation, that he was profeflbr of mathematics at St. Andrews ; but he does not pretend that he had an inch of ground, much le(s that he had fo great an eftate as qualifies its proprietor for killing game on the lands of another. Had he been fo qualified, it is impoffible to believe,' but that his counfel would have iet forth a circumftance fo material and decifive. From what has been above argued, it is, with fubmifiion, evident, that though the panel had been a common fcwler, and hunting upon the 24th of October on Lord Eglintoun's ground, his Lordfhip had not, in virtue of the ftatute, any title to take his gun from him by force. Out the injuftice of his Lord(hip*s demand is, if pofrible, made clearer by this circumftance, which is not contraverted ; viz. That the panel had not been hunting on his Lordihip's ground. No fuch thing is charged in' the indictment, nor has .any fuch thing been aller/ged by the counfel for the profecutor, in their pleadings, or in the information. All the' inditment'al- Jedges is that a fervant told Lord Eglintotin, that he law two perfons, one of them with a gun, at a fmall diftance, upon his Lo?d(hip's grounds of Ardroffon. But it does not fay, that the panel had been actually hunting there that day. Now where is the law that favs, a man mult not pafs with a gun on his fhoulder along the highway, thar runs thro' the grounds of another, or through any grounds ? From [ 24 J From what has been above ttated, the panel flatters him- felf, he has made cut to the fatisfa&ion and conviction of every reader that in point of law, Lord Eglintoun had no right to take his gun. What the confequence of that pofition muft be, will appear by and by. The panel's defences (though branched out into a variety of topics in the information for the profecutors) come all under two heads, in fo far as applicable to the relevancy of the indictment as laid, which the defence of mere accident is not ; and they were fo arranged at the pleading, and fall to be fo in this information. He is to maintain, in the firft place, that fuppofing him to have committed intentionally a homicide upon Lord Eglintoun, that, in the worft view of the cafe for the panel, fhould only be reckoned culpable ho- micide, the punifhment of which is arbitrary, not murder ; becaufe it appears, fromthefhowingof the indictment itfelf, it was not committed from premeditated malice, no fuch thing being charged, but upon a fudden quarrel, of which the panel was not the beginner or author, in the heat of blood and of paflion, and upon great provocation by inju- ries both verbal and real, actually done him. But, 2dly, The panel is to maintain, That the homicide, as charged, was juftifiable, or at leaft.excufable, being com- mitted in lawful defence of property, honour and life, and to prevent the lofs of them all. i ft, Then, in the worft view of the cafe for the pane!, the homicide was but culpable, and only arbitrarily, if at all, punifliable, becaufe of the provocation he had received. This is a queftion of very great moment ; and for the folution of it we muft refort to firft principles and the conftitution of human nature. All animals refent an injury or attack upon them. This they do not in confequence of reflection, or any act of the underftanding, but involuntarily and mechanically, by an impulfe from nature, wifely implanted in them for the pre- fervation of the feveral fpecies. The emotions of anger and refentrhent are fudden, involuntary, and mechanical, as is evident from the effedl they produce upon the nerves, limbs, and features of all animals, who are afFedled with them. Matter is not more fubjecl- to the laws of gravitation, elafti- city, and the like, than the fpiritsof man, and of all animals, are fubject to the impulfe of anger and refentment. * Thcfe, indeed, are laws of nature in the proper fenfe, being quod \ f L. i, 3. ff. DC jufUtia et jure. natura t 25 3 fiatura o?nnla animalia docuit ; and therefore every animal, when attacked, reforts to thofe inftruments of defence with which nature has fupplied it. f Imperat hoc natura pot ens > Dente lupus, cornu taunts petit unde, niji intus Monftra* turn Mankind, as well as the inferior animals, are liable to the involuntary and mechanical emotions of refentment^ Every man who injures another feels this. He knows and feels, that in every perfon whom he attacks, he muft ex- cite thefe mechanical and involuntary emotions ; and there- fore, if he is hurt, or flain by the perfon attacked, he has himfelf only to blame, and is not improperly faid by law- yers to have killed himfelf. * Inter/eft us ab invafo, fe d<- fendentg) videtur magi* a feipfo acci/us, quam ab infultato. As thefe emotions are mechanical and involuntary, and therefore cannot be prevented, it would be abfurd and unjuft in any legiflature to punifh a man for being fubjecl: to them, or acting in the way and manner their impu'fe di-, reels : a legiflature fo punifhing would fly in the face of nature, and arraign its Author. Accordingly no legiflature under the heavens ever thought of inflicting fuch punifh- ment; but the lawyers of all countries have in one voics agreed, that a diftin&ion fhould be made between {laughter committed from premeditation, and {laughter committed on a fudden quarrel and provocation. The firft they have moft juftly punifhed with death: the laft they either ex- cufe altogether, or give it the check of an arbitrary pu- nithment j not fo much from a principle of juftice, as from, the wife purpofe of mfpiring an averfion and abhorrence of bloodfhed. Hence molt of them have not directly ac- quitted the flayer, but rather opened a way for him co ef- fedtuate his fatety, by giving him the privilege of fanctu- ary, or fome other fuch indirect method of relief. And for the fame reafon, though thofe who flay men in their own defence, are indifputably juftifiable ; yet the laws of many antient nations obliged them to undergo certain ce- remonies and purifications : and upon the fame principle, in fome countries, brute animals, and even inanimate fub- ftances that have occafioned the death of a man, are for- feited and applied to pious ufes, as is th&*cafe of Dcodands in' England. However, the law of a 1 ! nations upon this queftion re- folves into a diftincYion between {laughter co^r/iitted from f Hor. lib. 2. Sat. i. & 51. * C*rp, p. j. Q-_ = O. n. 28. D ^defign defign and premeditation, and flaughter committed from a fudden quarrel and provocation. The firft is moft juftly punifhed with death; becaufe it does not proceed from a mechanical or involuntary impulfe or emotion, but a deli- berate at of the will and underftanding, and therefore ma- nifefts a depravity of heart, a temper inconfiftent with the rights and 'interefts of fociety. But the laft fpecies of ho- micide is either altogether excufed, or only arbitrarily pu- nifhed ; becaufe it does proceed from a mechanical or in- voluntary impulfe or emotion ; confequently it cannot be afcribed to any bad motive; and it is the motive alone that makes an acton criminal or virtuous, the ohjeft of reward or punifhment, and confequently of law. Voluntas nan exitus jpeffanda eft ; that is to fay, an acton unaccom- panied with a motive is nothing more than the operation of a piece of matter. And hence it is, that inanimate fubftan- ces, brute creatures, and even human, who have not at- tained to reafon by non-age, or have been deprived of it by difeafe, are not to be called to account for the flaughter of a man, which they may occafion, but cannot commit. It is however, no doubt, moft juft and reafonable, and is eftablifhed by the laws of this and every other country, that in order to conftitute murder, a long antecedent defign or premeditation is not requifite. It is fufficient, in order to found a capital punifhment, that a defign or premeditation appear; and wherever an interval of time has elapfed between the provocation given and the flaughter enfuing, fufficient to have given the perfon offended an opportunity to cool and refledt, the flaughter will then be murder: for if any con- fiderable fpace of time has intervened, the flaughter did not proceed from any mechanical, involuntary impulfe or emo- tion, but from a deliberate adt of the will and underftanding. But if a fufficient time for cooling did not intervene, the flaughter will not be murder, and ought not to be fo. It is evidently accidental or cafual ; for the meeting of the par- ties was cafual; their quarrel was cafual; and even the blow or wound that occafioned the death was eafual ; be- caufe it did not proceed* from deliberation, but an invo- luntary mechanical impulfe. The principles above explained are obvioufly folid and found; they are principles which temper juftice with mercy, and therefore they have been adopted into the law of every nation under the fun. The law dictated to the Jews by the higheft authority is ekar and explicit upon this diftindVion : it could not indeed be t *7 J be otherwife, as it came from the Author of nature, who, it would be impious to fuppofe, would frame laws on any other plan, would frame laws which muft have proved fnares to mankind, by reafon of the frailties which he has thought pro- per to give them. Such a fuppofition runs counter both to the words and fpirit of the whole facred writings, which all along declare that he does not lay righteoufnefs to the line, or judgement to the plummet ; that he will always remember menarejlejh. And accordingly, after conlidering the fyftern of judicial law of A4ofes, it will appear, that thefe gracious principles run through every part of it, and fhine no where more confpicuous than on the fubjedt of homicide. The generaj rule laid down is, * Thou fhalt not kill :' hut then this general rule is explained and limited by a variety of exceptions and reftriUons, that bring the doctrine of the Jewifli law precifely to the diftin&ion above-mentioned. That diftinclion is thus laid down in general : * * If a man ' lie not in wait, but God deliver him into his hand, then ' I will appoint thee a place whither hefhall flee. But if a * man come prefumptuoufly upon his neighbour to flay * him ivitb guilc^ thou (halt take him from mine altar that ' he may die.' By this text it is evident, that he only who had committed a flaughter deliberately, or with guile, was to be taken from the akar that he might die : but the man who had not flain his neighbour from premeditation, but had cafually flain him on a fuddenty, was to have pro- tection in a city of refuge. This is put out of all doubt by two other paflages of the Pentateuch, which are explained and illuftrated with much learning and good fenfe in the celebrated information for Mr. Carnegie of Finhaven f, Thefe pafiages (hall be tranf- cribed, and then the fubftance of the above-mentioned ex- pofition given. Thefirft of thefe is as follows j * And this is the cafe of the flayer which {hall flee thither, that he may live. Whofo killetih his neighbour ignorantly when he hated not in time />/?$ as when a man goeth into the wood, with his neigh- bour to hew wood, and his hand fetcheth a ftroke with the axe, to cut down the tree, and the head flippeth from the helve, and lighteth upon his neighbour that he die, he (hall flee unto one of thofe cities and live. Left the avenger of the blood purfue the flayer while his heart is hot and overtake him, becaufe the way is long, and flay * Exod. xxi. 13, 14. j- See Finhaven's trial from p. 42 to p._8i. inclufiy* , DJt, xix. 4,'$, *. Da ' himj ' him j whereas^ he was not worthy of death, inafmuch as ' he hand hi::; not in time paft.' The orher, ifter ordering cities of refuge to be appointed, prorreds thus*: 'Thefe fix cities (hall be a refuge both for ' the children of Ifrae! and for the ftranger, and for the fo- * journer among them, that every one that killeth any per- * fon unawares mav flee thither. And, if he fmite him with * an inftrumei: of iron (fo that he die) he is a murderer. * The murderer ii all furely be put to death. Or, if he ' fmite him w; f h a ) hand-weapon of wood (wherewith he ' mav die) and h, lies, he is a murderer. The murderer fh^ll * furc'y be put to r'^ath. The revengei of blood himfelf ' lha 1 ! fkv the nu iorer. Whtn he neeteth h'm he (hall * flay him. Bat, if he thruft h'm of hatred,%or hurl at him * by Jymg of wait, that he die; o>- in enmity fmite him * with his haad that he die, he that fmote him (hail furely be ' put to dtath, for he is a murderer. The revenger of blood * {hall flav the murderer when he meeteth him. But, if he * t bruft him fuddtnly without enmity > or have caft upon him any 6 thing without lying of wait, or with any ftone wherewith 4 a man rray die, feeing him not, and caft it upon him, that ' he die, and was not his enemy, neither fought his harm; 4 then the congregation fhall deliver the flayer out of the * hand of the revenger of blood, and the congregation fhall * reftore him to the city of his refuge, whither he was fled ; * and he fhall abide in it unto the death of the high prieft ' which was anointed with the holy oil. But if the flayer * fhall at any time come without the borders of the city K of his refuge whither he was fled, and the revenger of c blood find him without the borders of the- city of his re- * fuge, and the revenger of blood kill the flayer , be Jball not ' be guilty of bl,od: becaufe he fhould nave remained in * the city of hi refuge until the death of the high prieft j e but after the deith of the high prieft, the flayer fhall re- * turn into the Ian.' of his poffeffion,' It wih oe cb erved, that in-theh'rlt vcrfe of the firft paffage, the word ignorantly\& explained by thefubiequentexpreflion, w''-om hf lateci not in timepaft; from which it is evident, that th word ignorantly does not import, that the flayer knew not t ; iur hr kilird his neighbour, but (hat he killed him without a fore-k >v. >:ge, a forefight,aformer ratiocination anddefign; for it is obvious, that, if a man killed his neighbour igno- ran iy, i.\e. not knowing that he kilied him, it would not be mi" r, evfji though he had hated him before; becaufe it Would be palpably unjuft to conjoin even a previous enmity * Numb. xxxv. from verft 15. to verfe a?, inclufive. 3 with C 29 I with a killing purely ancj perfe&ly accidental, in order to make it amount to murder. The matter is fully explained jn verfe u, which text does not lay, tha', if a man f~ine his neighbour whom he knew, although without hatred, and without lyiiig in wait, an '. without riling upagainff hirn,.rhat he lhal! furcly die; by no means : on the contrary, u , he jflue of hi:- d<> ing or not upon hss hating rifing up againtt, or lying in wait for him that "he did kill, thar is, r t ) >n his dengning t-j take his opportunity from premeditated malice. Nor is it ai.y objection, that the examples given in verfe 5th are of fhughter perfectly and ftriftly cafua!. Thefe ex- amples do not exhauft the rule, as is fully proved bv verfe 1 1, fdr it does not extend the capital puniihment to all who came not urtd^-r the defcription in verfe 5th, but extent ic to thoie only who hated their neighbour, lay in wait for him, find rofe up Ggalnft him. The above is indifpuubly the found interpretation of the firft paflage, though the matter is ftill more fully explained in the other naffage from the book of Numbers, where the general rule laid uown is, that even- one may flie to the cities of icfuge, that kills any perfnn unawares. Now nothing can be plainer, than that killing unawares, means killing without deliberation, without forethought, ex improvijo, ex inconfulto After lay ing down the above general rule, the test proceeds to an inlargement or amplification of it. * And if he fmite * him with an inftiument of iron, &c.' . ! hefe are the amplifications ; the limitations follow in verfe. 20 ' But if he thru/} him of hatred,' &c. Here is the limitation (introduced with the particle but] he that killeth or th'iuft- eth with an iron weapon is a murderer, qualified 'with the reftriclion, but if he thruft him of hatred : that is, in other words, he is a murderer if he thruft him with hatred : and this is ftill more clearly fet forth in v. 22, e'tfeq. where thrufting fuddenly is /et in oppofition to thruiiins; with en- mity, with a dire& reference to the 16, 17, and i8th verfes. In verfe 22, et feq. all the three methods of killing mention- ed in verfes 16, 17, and 18, are referred to, Thrutting (pro- perly applicable to the kilhng with a fword) csfling anv thing upon him, without lying in wait, or forethought, or with any Jlone^ wherewith a man may die, the very cafe put in verfe 17, and there deemed to be murder; yet in this verfe 23, it is declared not to be murder, and, that the flayer (hall be delivered from the avenger of >blood, if he was not his enemy neither fought his harm ; fo that it is clear as funfhine, the three laft vertes contain a limitation of all that went bcfore f JJy verfes 16 and 17, the inltrument, of whatever nature, was f 3 3 was to raifc a prcfumption, if a mortal one: but by vcrfes 22 and 23, if it fliould appear, that the perfon flain was not thruft, hurled at, or {mitten in enmity, &c. the flayer was not to be found guilty of murder, but to be delivered from the avenger of blood. Nor can any objections be drawn from the words, feeing him not, which occur in verfe 22, as if it was requifite for the flayer's fafety, that he did not fee him that was thruft at or killed with a ftone, though not done in en nity. Fo.- frfi, it will be obferved, that the word him is not in the original, but has been added by. the tranflators, and is ac- cordingly diftinguifbed as fuch with Italic letters in all cor- rect editions of the Bible. This addition of the word him is evidently erroneous ; the expreffion fhould have been fee- ing not ', nor fliould the tranflators have made ufe of our participle feeing, but, according to the idiom of the Latin language, of an adjetive, fuch as itnprovidiu, imprudens, > or the like: and accordingly the Sieptuagirit ufes a Greek adjective of that fignification. But, idly, The word feeing him not, however they may refer to the cafe of throwing: a ftone, yet they cannot poffibly refer to the words thru/ling without enmity, for how can a man, in any proper fenfe, be faid to thrult at another whom he fteth not ? In (hort, the ienfe comes clearly out to be, that when a thruft or blow was -given without enmity, forethought, or premeditation, the flayer was not to be found guilty ot murder, but to have the benefit of the city of refuse ; and foall the Jewifh law- yers and doctors have uniformly held. The above learned, judicious, and convincing explana- tions are taken from the information for Carnegie of Fin- havtn ; and any perfon who will attentively con fid er them with the Bible before him, will eafily perceive the fallacy of the arguments offered in the information for the profecutor$ in this cafe, which ?re the fame witb thofe urged in the in- formation for Mr. Carnegie's profecutprs, to prove that only homicide, firidtly carnal, was exempted from capital punilhment by the law of Mufes. The panel (hall conclude on this head with fubmitting an additions! obfervation or two in confirmation of the dodlrine on this point maintained for Finhaven : The firft is, that it is ,ot to be fuppofed, that the law delivered to Mofes would have been at fo much pains to explain and declare in fo many different paflages, by a variety of illuftrations and examples, that homicide, altogether accidental or cafual, was not punifhable with death, for that is a propofition perfectly clear and indifputable. It is only homicide arifmg from [ 3' 3 from provocation thatcives rife to queflions of *any difEculty. 'idly. T*he panel would obferve, that it is proved clearly by thecloieof the paffage above quoted from the book of Num- bers, that provocation was fufHcierit to jnftify, at leaft ex- cufe homicide. Ic is exprefiy laid down in verfe 27th, That if the revenger of blood (hall find the flayer without the borders of the city of refuge, and kill him, he (hall not l> guilty of blood, which evinces, that the cccafioning the death of his Icinfrmn, though by accident, was provo- cation fufficient to jultify or excufe the revenger of blood for putting the flayer to death, not only immediately after the flaughter, while his heart was hot '(as exprefled in verfe 6th of the firft paflage), but ex-inlervallo, and at a very great dittance of time. The panel is at a lofs jo comprehend how the profecutors will reconcile this with their doctrine, that no homicide, except that ftri&ly cafual, was exempted from capital punifhment by the law of Mofes. La/fly, The panel would obferve, that the lateft and moft judicious di- vines, who have written upon the law of Mofes, agree in thinking its doctrine ftands as the panel has repi/efencedi The panel (hall only tranfcribe apaffage from the late excel- lent book, intiled, " A critical and practical exposition of the Pentatuch.*" * But if he t.rvjl htm fudclenly without enmity^ * &c. But if on the contrary, the mifchief appears to have ' been done in z. fitdden fit of pujjicn or provecaticn unpreme^ ditated, without any foregoing threat^ grudge , or ma I- clout ' intention, then the court, before whom the cafe is tried^ ' is to pronounce it mere manslaughter, and acquit the fLyer * from all private revenge from the friends and relations of * the perfon fo flain.' See Pylef. As to the civil law, it likewife adopts the fame diftin$ion ' Quamvis ferro percuflerit, tamen non occidondi animo, * leniendam pcenarn ejus qui in rixa cafu, magis quam vo- ' luntate homicidium commifu.' It is evident, that the an- jmus occidtndi ^^ here meant, is a premeditated animus or inten- tion, and not that 1 the law is talking of a blow or wound given by pure accident ; for fuch a pcfition is excluded by ifaejptffeifaftt, which is the fubjecl; of oonflderation, ac- cording to which the parties were in a quarrel or rixa. And to the fame p-jrpofe, a text in the CocJt|, * Si probaverit, ' non occidendi animo hominema feperculTem effe, remifla * homicidii poena iecundum dilcipiinarn militarcm fententi- * am procurer, crinem enim contrahitur, fi et voluntas no- * cendi intercedit, caeterum eo qiu ex impravifo cafu t potius 'a/sfa^, acctdunt, fato plerumque, nonnoxa impu- * Printed in fol'o. 1742, fL. I- Patv j, ff, ai leg. Car. de c. J L, J. Cod. ibid. 41 tantur* C 32 ] * tantur' The valuntas nocendi here meant is a premedi- tated voluntasy which it. evident from the expreffion cafu pot jus quam frauds. And that according to the notions of the Roman law- yers, provocation, juftified and excufed, appears from the following decifion, in aqueftion as to the aii ntxalis, which lay for damage done by a brute animal contra naturam fui generis. ' Cum arietes, vel boves commififlent, et alter al- * terum occidit, Quintus Multius diftinxit, ut fi quidem is f periflet, qui agrejjus erat^ cefiaret a&io ; fi is qui non ' PROVOCAVERAT, competeret a&io.' Which determi- nation is founded upon the great principle above explained, that the impulfes of refentment and felf-defence are implant- ed in all animals, and that their emotions are involuntary and mechanical. As to the commentators and doctors of the civil law, they all adopt the diftinclion betwixt {laughter committed from premeditated malice, and (laughter on a fudden provocation ; they hold that an attack and provocation make a man to be not in pltnitudine intellecius. This is exprefsly laid down by Carpzoyius in thele words*: c Sane difficillimum juftum * dolorem et iracundiam temperare, cum homo intenfo do- '* lore permotus, non fit in plenitudine intellectus :' then he proceeds to diftinguifh very properly between a juft and un- juft caufeof taking offence, and admits the former to be fuf- ficient to excufe. * Si ergo jufta caufa calorem iracundise * praecedat, velutifi quis ab alio fuerat, provocatus, aut alio * modo offenfus, tune is qui ira aut intenfo dolore per- * motus provocantem feu oftendentim interfecit, abfquedu- * bio a pcena ordinaria liberabitur*" Yet Carpzovius is well known to be the fevereft criminalift that ever put pen to paper; and it is therefore needlefs to quote more autho- rities upon that point. The panel comes now to the law of England ; the doc- trine of which, with regard to homicide, he is advifed, is the very perfection of human reafon. That law proceeds in. this matter upon the principle that ira furor brevis eft -, and therefore it holds, that homicide committed while the furor brevis, occafioned by provocation, continues, is excufe- able homicide, or manflaughter, not murder ; but if com- mitted ex interval!*), after jthe blood has had time to cool, it is murder. So the law of England is laid down by Judge Fofterf, who is quoted by the profecutors themfelves. ' I * now proceed, he fay?, to that fpecies of felonious homicid e * Part i. Q. 6. n. 6, 16. J- Crown-Law, dif. ii. ch. {. which [ 33 3 ( which we call manflaughter ; which, as I have before ob* * ferved, the benignity of our law, as it ftandeth at prefent, * imputeth to human infirmity; which, though in the eye c of the law, criminal, yet is confidered as incident to the * frailty of the human frame/ * The cafes falling under * the head of manflaughter, which rrioft frequently occur, * are thofe where death enfueth upon a fudden affray, and ' in heat of blood, upon fome provocation given or con - * ceived.' * What degree of provocation, and under e what circumftances, heat of blood, the furor brevis will or * will not avail the defendant, is now to be confidered.' Then he proceeds to ftate a variety of cafes, which fhall by and by be taken notice of; and then he adds, ' But in thefe, * and indeed in every other cafe of homicide upon provo- * cation, how great foever it be, if there is fufHcient time for paflion to fubfide, and for reafon to interpofe, fuch ho- micide will be murder : A. finds a man in the ac"t of adul- tery with his wife, and in the nrft tranfport of paflion kills ; this is no more than manflaughter: but had he killed the adulterer deliberately, and upon revenge, after\the faft % and /efficiently cooling time, it had been undoubtedly murder; for let it be obferved, that in all poffible cafes, deliberate homicide, upon a principle of revenge, is murder. No man, under the protection of the law, is to be the avenger of his own wrongs.' This laft fentence the proiecutois quote, but they prudently leave out all 'that went before. Numberlefs authorities might be accumulated upon the fame point ; but it would be fuperfiuous, as it is notorious that fuch is the law of England. But though the panel will quote no more author?, yet he will beg leave to tranfcribe a paffage from a pleading of the folicitor-general of England, in a late very remarkable cafe ; as that pleadingdemonitrates, that the above diflinttion is not confined to'books, or only adopted by contemplative lawyers, but that it is univerfaliy admitted in praCtice, and in cafes of the greateft importance and expectation. In fumming up the evidence againft Lord Byron, Mr. Solicitor- General bean as follows*: ' The * noble prifoner at the bir is charged with having killed * Mr. Chaworth deliberately and malicioufly, and, in the ' terms of the indictment, with malice aforethought. . That ' he killed him is a truth beyond difpute ; and he who takes * away the life of another, is t prefumed to have taken it a- - way deliberately and ma!ic;oufly, till it fliall appear to * have been the tffeCt of neceffity, of accident, or of fudden * I> ( itfi 3n i for as neceffity will juftify, and accident excufe. * Lord Byron's trial, p. 37. tht f 34 J * the fat, an ungovernable transport of paffwn will fo far al : - * leviatethe crime, as to make that which would otherways * have been murder and a capital offence, manflaughter only, *' which faves the life of the offender. This is a condef- ' cenfion the law {hews to the frailties of the human mind, ' which, upon great and fudden occafio'ns, cannot command * itfelf, or maintain its reafon.' The panel, in the laft place, comes now to confider the law of Scotland, which he hopes, both for his own fake, and that of his country,, will be found to be not Angularly abfurd and unmerciful, but that it adopts the fame juft and humane diftin&ion. Slaughter of aforethought felony was ancient- ly, as well as now, capital by the law of this country; but {laughter on a fudden quarrel and provocation was not capital; it was called cbaude melle, and the flayer had relief by the privilege of girth and fan$uary ; in the fame way as the flay- er had relief by the privilege of the city of refuge among the Jews, and as he has by the benefit of clergy among the Eng- lifh. It is of no confequence in what form a man is freed of punifhment, if he be freed. Thecounfel for the profecutors, in their information, is pleafed to deny, that cbaude me lie was not capital by our old law ; and in fupport of this pofition adduces fome of the argu- ments urged in the above-mentioned information for Mr. Carnegie's profecutors, which are founded chiefly on mif- conftrucitons of fome parts of our old law ; at the fame time he fays, it is a matter of no great confequence, whether it was fo or not; becaufe he fays, and truly, that the a& 1661 muft regulate the matter. All the arguments ufed to prove that chaudenullc was capital by our old law, are fully and moft fa>isfalorily confuted in the * above-mentioned in- formation for Mr. Carnegie; to which the panel begs leave fo far to refer, contenting himfelf with ingrofling the different did ftatutes we have upon that jubjedt verbatim, and in their order. James I. parl. 3. at 51. intituled, of ^forethought felony and chaud mella ftatutes, ' That as foon as any complaint is made to juftices, (heriffs, bailies, &c. they fhall inquire diligently, /. e. without ony favour, gif the deed was dona, upon forethought felony, or throw fudden chaud mella^ and gif it be found: forethought felony, the life and goods of the trefpaflcr to be in the King's will : and gif the trefpas be done of fudden chaud meUa^ the party fkdithed fliall follow, and the party tranfgreflur defend, after the courfc of the old laws of the realm.' * From p. 6S, to p. 72. James I. C 35 J James I. parl 6. aft 89. intituled, e The Man/layer fuld * be purfued, until he be put forth of the realm, or brought * again to the place of the ilauchter.' (The aft appointing the method of purfuing manflayers) flatutes, ' That quhairever * he happens to be taken, that fcheriffes, ftuart, or bailie * of the regality, fall fend him to the fchiriffes of the next * fchiriffdorn, the quhilk fall receave him, and fend him to ' the next fchiriffe, and fwa forth from fchiriffe to fchirifFe, ' quhill he be put to the fciriffe of the fchire where the deede ' was done ; and there fall the law be minittered to the partee, * and gif it be forethought felony be /hall die therefore? James I. parl. 6. aft 95. intituled, ' Of inquifition of * forethought felonie to be taken by an aflife,' ftatutes, * That the officeares (/. *. the judges ordinary) fall give * them trie knowledge of ane affize quhidder it be forethought c fellcnie, or fuddaineliedone: anu, gif it be fuddaineliedone, * demaine them as the law treatis of before; and, gif it be , forethought fellonir, demaine them as law will.' James III. parl. 5. aft 35. intituled, * Of ilauchter or * forethought fellonie of fuddaintie and fiying to girth.' ' Item^ becaufe of the efchewing of great flauchter, quhich * has been richt commoun amang the King's liedges nowe ' of lait, baith of forethought fellonie, and of fuddaintie j * and^ becaufe rnonie perfons commit flauchter upon fore- ' thought fellonie in truft, they fall be defended through the ' immunitie of the hali kirk and girth, and paflis and re- ' mainis in fanftuaries, it is thought expedient in this pre- ' fent parliament, 'for the ftanching of the faid flauchters in ' time com\n^quhaireverjlauchter is committed on forethought ' fellonie^ and tlx; committer of the faid flauchter paflis and ' puttis him in girth for the fafetie of his perfone, the fcheriffe ' fall cum-to the ordinar in places, quhair he lies under his ' jurildiftion, and in places exempt to the lords mafters of * the 'girth, and let them wit fick a man has committed fick * a crime on forethought fellonie, tanquam infidiator et per * indu/triom* for quhilk the law grantis not, nor leavis fick * perlons tojoy is the immunities of the kirk. And the fche- ' rifFe fall require the ordinar to let a knawledge be taken ' be ane affife on fifteen daies, quhidder it be forethought 4 fellonie or not ; and gif it befounden forethought fellonie, * to be puniflit after the kinges laws : And gif it befounden * fuddentie^ to be rejlorit again to the freedom and immunitie of * the halie kirk and girth.' James. IV. parl 3. aft 28. intituled, c Anent manflayers, * taken or fu^j'ive, ftatutes, That where onie happens to * be flain within the realm, the manflayer fali be perfeived E 2 < (in C 3* ] ' (in a certain manner) nu quhairever he happens to be f certane, that the fchenfFe fall incontinent fend him to the ' next fcheriffe, and fwa foorth quhile he be put to the iche- ' rifle of the fchire quharr the deed was done, and there fall ' juftice be incontinent done; and gif it be forethought ' fellonie to die therefore.' James V. parl. 4. al 23. intituled, * The matters of the ' girth iuiJ m<-k deputes quha fuld deliver malefa6tours that ' nif-y not bruik the priviledge trurecf,' ftatutcs, ' That ' they fuld be halden in all time coming, to deliver all com- ' mitters of jlauchtcr upon forethought fellonie, that flies to * girth, and utners ;:ref puffers that breakis 'he famen, and ' may not bruike the priviiedge tht-reof, corform to the ccm- " nvon law, and the adt of parliament maid thairupon, of * before to the klr.gs ofnures afkand and deiireand them to * underly the Jaw.' As to the act 1661, which is no doubt the ftanding re- gulating ftatute in this country with regard to homicide, the panel is advifed that it is decifive fo him, as it put;- our law much upon the fame footing with that on which the law of England (fands. The title of the ad is, ' Concerning the feveral degrees of cafual homicide,' Its words are, * Our Sovereign Lord, 6 &c. for removing of all queftion and doubt that may arife ' hereafter, in criminal purfuits for flaugher, ftatutes and * ordains, That the cafes of homicide after following, viz. * cafual hornicide, homicide in lawful defence, and homi- ' cide commi'tfd upon thieves and robbers breaking houfes * in the nighty or in cafe of homicide the time of mafterful * depredation, or in the purfuit of denounced or declared * rebels for capital crimes, or of fuch who affiftand defend * : % e rebeis and mafterfuldep f edntors by arms, and by force ' oppofe the purfuit and appit-hendingof them, which (hall ' happen to fa!) out in time coming, nor any of them fhall * not be puni flied by death : and that notwithftanding of f any laws or acts of parliament, or any practice made ^ heretofore, or obferved in puniftiing {laughter: But that ' the manfiayer, in any of the cafes aforefaid, be aflbilzied ' frorn any criminal purfuit pursued againft him for his life * for the fa id flaughter, bef< re any judge criminal within * this kingdom. Providing always, that in the cafe of ho- * micide cafua!, and of homicide in defence, notwithftand- * ing that a flayer is free from capital punifhmenr, yet it * fhall be liefome to the criminal judge, with advice of the ' council, to fine in his means to the ufe of rhe defunct's ' wife and bairns, or nearefl of kin, or to imprifon him. And r 37 i 'And his Majefty, with advice aforefaid, declares, that all ' decifions given conform to this act, fince the 13 February * 1649 years, ih;>li be as fufficient to fecure all parties inte- ' refted, as if this prefent act had been of that date} and that * all cafes to be decided by any judges of this kingdom in c re\z\.\QnlQcafual homicide in defence^ committed at any time * heretofore, fhall be decided as is above .expreffed.' * The paffage quoted from Skene, by the profecntors to prove he thought cbaude mel/e capital byour old law, iaa'nfolute nonfenfeasitftands ; inftead of thcfewords, 'Orcafual homi- ' cide by cbaude melle, the reading ought to be not carnally, * or byo&tf^?/K/?//f,'otherwife hecontradiclshimfelf, and cites acts of parliament which prove the contrary of his .pofition ; and likewife he would contradict what he fays in his treatife de verborum fignificatione under cbaude melle, which he ob- ferves is in Latin rixa : ' A hot fudden tulzie or debate, ' which is oppofed as contrary to forethought felony ;' and cites the aft of James I. But how is it contrary oroppofite to forethought felony in our law, if the effect or punifhment of both be the fame. And upon the words, forethought felo- ny, he fays, ' Fouthocht felony, precogitata maiicia quilk * is done and committed wittinglie and willinglie, after de- * liberation and/*/ purpofe ; it is different rrom cbaude melle* * qui utfcribit Cicero, c. I. offic. In omni injuftitiaper mul- c turn intereft utrum perturbatione alique animi, quse plu- ' rumq ; brevis eft et at tempus, an confulto et cogitato ' fiat injuria leviora, enim funt ea, quse repentino aliquo ' motu accidunt, q^am quas meditata et preparata inferun- * .tur.' From which it is evident, that the authority of Gkene is point blank, againft the profecutors on this quef- tion. f And to the fame purpofe, Sir James Balfour, Lord Prefident of the Court of Seffiun, in his practices, under the title Siauchter, gives the following fum'mary of our old law, even before the ftatutes abovementioned : and it is, to wit, * That na flauchter done be chance or cbaude welle^ SOULD BE CALLI T MURDER, for all murder is COMMITTIT OF FQIRTHOCHT FELONIE, &c.' Thefe, and many other authorities that might be quoted from our moft ancient law-books, fuch as Regiarn Majifta- tem, make it clear as the meridian fun, that, tor many cen- turies before the act 1661, {laughter on a fudenty was not capital by the law of Scotland j but that it was put on the fame footing on which it ttands in England where it had relief by the benefit of clergy j which, though at fiift too * Infor. p. 33. f Inform, p. 5iz. much r 3* r much confined, has for age* paft been extended to all forts of perfons. As it is clear from the above recital of the ftatutes previ- ous to thu ixt, that the diftindtion betwixt ilaughter of forethought felony, and {laughter on fudden provocation or chaude melle^ took place in this country ; and as tliat diftinc- tion is founded upon the principles of jultice and humanity, rt is impolTible to believe it was meant to be abrogated in 1661, when our law had attained to forre degree o f maturity, and tne notions of our judges and lawyres muft have been much moic liberal then they had been in former times ; ac- cordingly the act 1661, was by no means intended to be feverer than .our former laws ; on the contrary, -it gives a more certain and coniiftent remedy than that of girth and iantuary, by difcharging the capital punifhment to be inflicted ; and, at tbje fame time, wifely provides, that blood- ihed, where an excefs had been commited, fhould not efape altogether, but be punifhed arbitrarily, according to the cir- cumftances of the cafe. This act is a tranfcriptof an act that pafled in 1649, du- ring the ufurpation. Its title above-mentioned, -it is clear, was not put upon it unadvifedly ; for it is verbatim the fame with the title of the a6t 1649 ; and the title itfelf demon- ftrates, that by cafual homicide was not underftood homi- cide purely accidental ; for it is palpable that fuch homicide admits of no degrees, and is no ways punifhable. But the a6t makes ufe of cafual homicide in the title as a general term that comprehends all homicide not committed from felony aforethought, as a term that comprehends not only homicidr, purely accidental or per inforiunium ; but homicide on fud- den provocation, homicide in defence, &c. all which kinds of homicide, as already faid may, with great propriety, be termed cafual ; for the meeting of parties was caiual, their quarrel cafual, and even theftrokeor wound may not impro- perly be faid to be cafual, feeing it was not the confequence of aeliberatiun and defign, but of a mechanical impulle of nature, and given cafu mngis qvam vduntate* It appears from the at, that either fome abufes had crept in, or fome doubts had been entertained, which it was deiuous to correct ard remove ; and it does correct and remove them if the panel's interpretation be juh\ as far as any law could do; for it leaves premeditated mur- der to be punifhed capitally as formerh 7 . Ic difeha,-ges other kinds of homicide to be punifhed with death ; but at the fame time, as exceffes might very readily be commited, it refervcsa power to the Judges of this Court, to inflict an arbitrary C 39 1 arbitrary punifhment in fuch cafes, and nothing can be bet- ter fenfe. Our law is, by this ftatute, put upon a ftill bet- ter footing than the law of England ; for, by that law, man- flaughter now-a-days always efcapes with' an elufory punifh- ment, though circumftances muft very often call for a real one. To maintain that by cafual homicide, the ab means homicide per infortunium, is extravagant to the higheft pitch. The very title, as already faid, demonftrates the contrary ; and fo,in a peculiar manner docs thelaft provifo, * That all cafes to be decided by any judges of this king- ' dom, in relation to cafual homicide in defence^ committed ' at any time heretofore, {hall be decided as above expref- ' fed/ This affords another invincible argument to prove, that the al by cafual homicide did not understand homicide fer infortumum, but homicide committed in rixa, or on a fudden quarrel ; and from this it likewife follows, that there is nothing in an obfervation made by the profecutors, * * That if the legiflator had meant and intended, that wil- ' ful and intentional homicide, committed on fuddenty, ' was not to be punifhed capitally, it would not have been ' particularly mentioned ;' for it is particularly mentioned as cafual homicide in defence , which cannot poffibly mean any thing elfe. The at wifely does not enter into a minute explanatk>n of what fhould be reckoned cafual homicide, and what homicide from felony aforethought, for it Is im- poflible by general rules to afcertain them ; circumftances only can do it ; but it is clear as fun-(hine, that this flatute ties up the hands of the Judges of this Court, from punifh- ing with death homicide that (hall appear not to be com- mitted from felony aforethought, but on a fudden provoca- tion ; though it very properly allows them to infli<5t an arbi- trary punifliment where there has been an excefs, or other circumftances that require it. The panel having thus flated what he takes to be the doclrine of the law of Mofes, of the Roman law, of the commentators on that law, of the law of England, and the law of Scotland ; and proved, he is hopeful, that they all agree in this, that homicide on a fudden quarrel and provo- cation is not to be puniftied with death ; he {hall now pro- ceed to confider, how far that doclrine will avail him in this cafe j or, in other words, to {hew, that the provocation he received from Lord Eglintoun w?s fufficient to excufe, ei- ther in whole or in part, the homicide charged" againft him, fuppofing, but not admitting, that he committed it inten- tionally, as the-indi6tmentallec!ges. * Profecutors inform, p. 7. 4 Here [ 40 ] Here the panel muft again call attention to tbe different fieps of Lord Eglintoun's conduct, and of his own, as fet forth in the indictment. And, ift, It is admitted that Lord Eglintoun, not the panel, was the provoker, or auttorrixes, which, in all cafes of this kind is, and always ought to be held, a very mate- rial circumftance. 2dly, That the panel received feveral verhal injuries from Lord Eglintoun, having been charged with hunting in breach of promife, and a demand made upon him for his gun, which every man knows, and muft feel to be, injurious and affronting. That verbal injuries alone are fufficient to juf- tify orexcufe homicide, the panel never maintained ; a great part of the argument in the information of the proferutors proceeds upon iuppofition that he had ; but it isa miftake: fbme lawyers have indeed thought fo ; but the contrary is no doubt the better opinion ; for verbal injuries may be eauly avoided, and completely redrefled by retortion ; but the panel does maintain, that in computing what amounts to fufficient provocation, verbal injuries are to be taken into the fcale. He has no occaiion to plead the point higher, for it is not pretended that upon receiving the ver- bal injuries juft now mentioned he fired his piece, or even fhewed any refentment ; the fat is, that he did not even fail in rtfpect, but with much civility and fubmiliion endeavour- ed to foften his lordfhip and abate the pafHon to which he had been inftigated by Bartleymore. 3dly, Lord Eglintoun foon proceeded to a real injury, by advancing upon, and aflaulting the panel, in order to take by force that gun which was his lawful property and pofTef- fion. In order to conftitute a real injury it is not necefiary that hands be laid on, or blows given ; it is a real injury, if a hand be lifted, or a cane fhaken over a man's head, ' * Si ' quis pulfatus quidum non eft, verum mahtts adverfus eum * levattS) et faepe territus quafi vapulaturus, non tamen per- ' cuflit utili injuriarum a&ione teneter." And by parity of reafon, the advancing upon a man, and obliging him to re- tire in order to avoid being feized, or thrown down, muft be a real injury. 4th! v, It isalledged in the indictment, that the panel told Lord Eglintoun, that he would not give up his gun, but would fooner fhoot him ; and, afterwards confirmed this warning by an. oath, his pafiion being by that time roufed by the continuance of theaflault. 5thly, The panel retired for a confiderable time and fpace from before Lord Eglintoun. 6thiy, * L, 15. par. i. ff. de injuf. 6thly, The panel in retiring was thrown down with violence upon his r back; and this fall, in the eye of law and reafon, muft be held to have been given him by Lord Eglington, for it was his Lordfhip's aflault that drove the' panel upon the (tone that was the immediate occafion of his tall ; and therefore, it was in reality his Lordftiip's act: fuppofe the panel, inftead of being thrown hy this fall upon his back among fand, had been precipitated from a height, and drowned in the fea, or bruifed to death among rocks, would not Lord Eglintoh have been an- fwerable for his death ? moft certainly; and his Lordfllip would at leaft have been guilty of culpable homicide, as he was verfans in re iliulta, and had no title to take the panel's gun by force ; and therefore the panel was intitled to refent this fall, as being the at of Lord Eglinton. ythly, The indi&ment does not alledge that the panel iired his piece till he could retire no more : it is evident that he was far from being in a hurry to fire his piece. He once and again threatened that he would do fo ; but that was plainly only to intimidate ; for, it is not pre- tended, that he fired till he fell, till he could retire no more, and till he was more violently agitated and irritated by that accident. Sthly, It will be confidered, that it is not pretended the panel had any time to cool or reflect, for the indictment fets forth, that the piece was fired upon his fall. gthly, The place where the panel was (hould be con- fidered. It is admitted he was alone on the fea-ftiore, where he could not have the interpofition of a magiftrate, or the fuccour of neighbours to affift him. lOthly, It is not pretended that the panel had any other weapon than his gun. When a man is aflaulted, or other- ways injured, and has a variety of weapons about him, fome lethal, fome not, there may be reafon for alledging that he commits an excefs, if he ufes the lethal, without firft trying what the lefs hurtful will do : but this will not apply to the panel's cafe, as he had no other weapon but his gun ; and the fevereft criminalifts hold that no excefs can be charged againft a man who ufes the only weapon that he has. Carpzovius himfelf is exprefs upon this. After inculcating in general, that the defence fhould be proportioned to the offence ; he adds, ' * Quod tamen ' verum eft, nifi aggrefibris robur et fortitudo fuppleac * P. i. 0^,29. n. 25, 26, 27. if * quod [ 4* ] quod armis ipfius deeft, aut allud non fit in promptu Ipfi infidtato ad defendendum telum. Si enim multo major, ro- buftior et fortior fuerit aggreflbr quam provocatus, eriam durlon ' telo hie ilium occidere vel debilitare poteft impune et fi aggreflbr felo pugno vel manu vacua infultum faciat, aut baculo invadir aliquem, cui impromptu non fit aliud inftiumentum, quam g'adius, is bene tueri fe illo gladio poteft, neque dicetur moderationem inculpatse tutelae excedere. 3 Nothing can be more in point than this paf- fage, and numberlefs authorities are quoted in fupport of its dodtrine. If fuch a fuit of injuries, verbal and real, do not amount to fufficient provocation, the panel is at a lofs to compre- hend what will. He is perfuaded, that every unprejudiced perfon will be fenfible that they do. However, for fur- ther fatisfa&ion, he (hall produce feveral authorities, both foreign and domeftici to prove that pofition. Real injuries, not near fo atrocious, have been again and again adjudged in England to be fufficient provoca- tion : * * Neither can he,' fays Hawkins, ' be thought guilty of a greater crime (viz. manflaughter) who, find- ing a man in bed with his wife, or being actually ftruclc by him, or pulled by the nofe, or filliped upon the fore- head, immediately kills him ; or who happens to kill another in a contention for the wall, or in the defence of his perfon from an unlawful arreft.' And he cites re- ports for proving every one of thefe pofitions, and feveral others to the lame purpofe, which the panel fhall not tranfcribe ; but fhall only obferve, that Baretti was very lately acquitted, though it was proved, and indeed not de- nied, that he had ftabbed a man with a knife, and the only provocation was fhoving him off the pavement into the ftreet. The panel fubmits, if the provocation he re- ceived was not more than a fillip on the forehead, &c. And feveral perfons have been acquitted for homicide in -this country, where the provocation was not greater or fo great : for the argument upon which Finhaven was ac- quitted, was, f ' that, if he had killed Bridgeton after * the provocation above fet forth, it would have been con- * ltruc"ted only as cafual or culpable homicide.' Now the provocation, fet forth in his defences, was, that he had been thrown into a kennel by Bridgeton. But the libel * Pleas of the Crown, vol. i. p. 82. in fine. f See his Information in the trial, p. 37, 3*. in [ 43 ] in that cafe was, and could not but be, found relevant, becaufe the fpecial matter for the panel was not admitted as it is in this indictment. In the cafe of William Hunt, mentioned by the profe- cutors, the court did, * * feparatim, find, that the ttroke ' being given in rixa or a tumult, when the defunct was c author of the tumult or rixa himfelf, or that the itroke was given in defence of the panel, or any of his fellow- foldiers when attacked, relevant to reftricl: the libel to an arbitrary punifliment.' And in the cafe of Enfign Bruce, in 1690, the court found this defence, that the panel was aflaulted by the robber, who cried Fire upon the dogs, or the like ex- preffions, before any intimation was made to them that the guard was come up, relevant to reftrit the libel anent the (laughter to an arbitrary puniftiment.' And in the cafe of Bruce of Auchinbowie in the year 1709, the diftindticn betwixt murder and manflaughter was' exprefly admitted by the judges of this court. Bruce, the panel, there pleaded her majefty's acl: of indemnity, in bar of the profecution: to which it was anfwered, that wilful murder was excepted from the indemnity. But it was replied, that the exception in the aft of indemnity only refpe<5ted murder or felony aforethought, not flaugh- ter committed on fuddenty; and the interlocutor of the court ' fuftained the defence of her Majefty's moft gra- * cious at of indemnity, proponed for the faid panel, re- ' levant to elide the faid libel.' Does not this decifion acknowledge, in the moft exprefs terms, that there was a difference in our law betwixt murder and manflaughter ? But the cafe on which the panel chiefly relies, and to which he intreats the utmoft attention, is that of Peter Maclean in 1710, which is precifely fimilar to the prefent. In that cafe the interlocutor was in thefe words : * Find the indidiment relevant to infer t.he pains of death, and fuftain the defence proponed for the panel in thefe terms, that the defund: quarrelled the panel under the name of rafial) how durjl be carry a fowling-piece^ and that if the prince had his own, he durft not do fo ; and adding thefe words, that her Majefty was but a whore, and thereupon ajjaulted the panel for taking the CARABINE from him, relevant to reftrift the libel to an arbitrary punifliment.' * See their Inform, p, 43, F ?. The [ 44 1 The panel is advifed, that this cafe is not fo ftrong as his ; for it is not alledged, that Maclean had retired, or that he had been irritated by a fall before he fired ; both which circumftances occur in the panel's cafe, and muft plead ftrongly in his behalf with every unprejudiced heart. The profecutors fay, this cafe does not apply, becaufe the gun Maclean had was the King's ; but, if fuch a circum- ftance could have any influence, it would make Maclean's cafe rather ftill more ferviceable to the panel j for, if a man may kill another in defence of a gun that is not his property but only his pofleffion, a fortiori may he kill in defence of a gun that is not only in his pofleffion, but is his property ; however, it would feem, that it was a fowl- ing- piece Maclean had ; but this is of no confequence. The panel now comes to the fecond thing propofed, which was to fhew, that if a homicide was committed in. this cafe, it was juftifiable, or at leaft excufable, becaufe committed in lawful defence againft an attack upon pro- perty, honour, and life ; and to ward off, repel, and pre- vent a danger imminent to all the three. A man, it is certain, owes many duties to his neigh- bour j but it is certain, that he likewife owes many du- ties to himfelf j and that thefe laft are prior, and para- mount to the former ; for which reafon, it is obvious, that a man not only may, but that he ought to preferve his own life, when attacked, though at the expence of the aggreflbr's ; and that it is not only lawful for him to do fo, but that he is blameable if he does not. His blame, perhaps, is carried too far by fome cafuifts, who maintain, that a man who, rather than kill another, fuffers him- felf to be killed, \%felo de fe t or guilty of fuicide; but he is certainly highly blameabie, as he has tranfgreffed the duty he owes to himfelf, which is prior and preferable to that he owes to others. This is obvious and indifputably clear from the defire of felf-preiervation, which is implanted in all animals, and is ftrongly enforced by the fear and ab- horrence of death and deftru&ion, which they all feel in the ftrongeft degree ; whereas the duty men owe to one another is not near fo powerfully inculcated. If there be an original and moral fenfe of ic, daily experience teaches, that it may be weakened by education or habit, and filenced and fubdued by oppofite inclinations and dehres. The difference between the ftimulus to thefe different du- ties is admirably well exprefled by Cicero*, * Eft ig'uur * Orat. pro Milone, c. 4, < hsec [ 45 ] 6 haec, judices, non fcripta fed nata lex ; quam non didi- ' cimus, accepiiiHis, leginaus, verum ex n&tura ipfa arri- 6 puimus, hauumus, expreffimus ; ad quam non dodli fed ' fati, non inftituti, fed imbuti fumus ; ut fi vita noftra * in aliquas infidias, fi in vim, fi in tela aut latronum, auc ' inimicorum incidiffet, omnis honefta ratio eflet expedi- ' endae faluus. Silent enim leges inter arma, nee fe ex- ' peclari jubent, cum ei qui expe&are velit, ante injufta ' pcena lutnda fit quam jufta repetenda j etfi perfapienter 4 et quodam modo tacite dat ipfa lex poteftatem defen- dendi.' And as it is a man's duty to defend his life, fo likewife is it his duty to defend his honour, without which his life, at leaft in a focial ftate, is of little value. And as it is a man's duty to defend his life and his honour, fo like- wife is it his duty to defend his property, without which he cannot enjoy the other two with comfort and pleafure. The end for which fociety was originally inftituted, and the reafon for which men continue in it, is the preferva- tion of their being, and well being, that is, the preferva- tion of life, reputation, and property. Any perfon who will reflect upon what gave rife to the formation of fociety among men, muft be fatisfied, that it was the oppreffion which the weak met with from the ftrong ; when the perfons or pofleflions of the weak were attacked by the ftrong, the natural impulfe of felf-prefer- vation and felf- defence made them exert themfelves : but by the fuperiority of force their refiftance was over-power- ed. This led them to unite, in order that their joint force might accomplifh. what individual refiftance could not do: from which it is evident, that it never could be the end or intention of any fet of men, in entering into fociety, to fupprefs and fuptrfede the natural exertion of private re- fiftance or defence ; but, on the contrary, it is moft pal- pable, that the end of their entering into fociety was to obtain, for that principle, a fubfidiary and fuppletory af- fiftance. At the fame time, though it is clear that private refift- ance or defence was not to be fuperfeded by the focial uni- on, yet private revenge and reparation moft undoubtedly were. This the public utility and peace required ; be- caufe, if reparation or reVenge were allowed to be taken in that way, it would commonly be unreafonable and ex- ceflive, and would befides give rife to endlefs 'tumult and confufion. Hence it is, that the laws of all countries, I though r 46 ] though they not only tolerate, but enforce private refift- ance or defence, yet prohibit and punifh private reparation or revenge. This prohibition upon individuals to redrefs or revenge their own wrongs is not at all inconfiftent with the above explained indulgence, which the law (hews to the fudden emotions men feel from injury and provocation ; for the Jaw does not juftify what is done in confequence of thefe emotions upon this principle, that it is allowable to indi- viduals to redrefs or revenge their own wrongs ; it only excufes them in companion to the frailty of human nature. Hence the law permits no retaliation of wrongs, ex inter- "uallo, when the impulfe is over. If that happens, the principle of law, that redrefs of wrongs muft not be taken by individuals, exerts itfelf with vigour and feverity, ex- cept in fome cafes, where redrefs cannot be had from hu- man laws : even in thefe cafes the ftatutes of moft coun- tries have made regulations againft taking redrefs in that way ; but it has commonly been found impracticable to execute them, and therefore fuch method of redrefs, though prohibited by ftatutes in terrorem, is, however, in a great meafure connived at every where. But from the principle, that no man is entitled to ufe violence to redrefs or revenge wrongs already done him, or recover a property or poffeffion already taken from him, it by no means follows, that a man is not entitled to ufe violence to prevent a wrong from being done him, or to prevent his lawful property or polTeflion from being taken from him. If the law will not allow an individual to redrefs wrongs already done, or to recover a pofleflion already taken from him, far lefs will it countenance the man who injuriously attacks his neighbour for that purpofe. It would be ab- furd and incongruous in the law to do fo ; for he who makes fuch attack, flies in the face of all law, contemns its authority, and renounces its protection ; and accord- ingly, the law not only refufes to protect fuch perfon, but arms itfelf againft him. It not only permits the perfon at- tacked to refift him, but affifts the perfon attacked, if over- powered j and it is not only juft, but expedient in the iaw to give liberty of defence to the perfon attacked. It is juft, becaufe, though in fome cafes * human laws may give complete redrefs, in many cafes they cannot, and the more * De i'Efprit des Loix, free [ 47 1 free a country is, the more difficult it is to obtain fuch redrefs as it can give, as Montefquieu very juftiy remarks. It would be unjuft in the law to make the perfon at- tacked omit a complete remedy, which he has in his own hand, and betake himfelf to a remedy almoft always de* fecYive, and fometimes totally unavailable for obtaining redrefs, which is the cafe with regard to life and honour, and, for the moft part, even with regard to property, as {hall be (hewn at large afterwards. It would be inexpedient in law to do fo ; becaufe, fo apt are men maintain, that it is jufti- fiable to kill a man trefpafiinjj privately, dam, and by ftealth j but he does maintain, and it is eftablifhed by the authority of all laws and lawyers, that it is juflifiable, or at leaft excufable, to kiil a trefpaiTer who ufes violence. This is even laid down by Damhouderius *, quoted by the profecuiors. That lawyer has taken into his head to maintain (very probably from the love of finguiarity, which has miflecl many a man) this very ftrange proportion, that it is not lawful to kill a thief either by day or nigiit: and afcer throwing toge her (everal observations in fupport of it, he adds : ' Ex his nunc dare collige^ur, quod non * eft iicitum occidere furem diurnum aut noturnum, nil! * is plus fit quam fur, autp/w quam fur effe praefumatur.* And a l>ttle below he adds : ' Si meam perfonam quifpi- * am invaderet, egoque citra periculum invadentem poflem ' eftugere ; profecto in eo cafu plane tenerer effugere /uti ' et fupra dictum eft) fi vero quifplam mea peteret inva- ' dere bona t non tenerer hoc cafu invaforem efFugere, ' quando quidem rnea fuga grave mihi potter, bonorum * me >rum mferri diipendium. Si preterea me quifpiam ' adoriretur, ita ut in arlam me conftiingeret peiiculi an- ' guftam ; i:i hoc cafu e veftigio tenerer meipfum fortiter, ' ad alterius etiam internecionem (fi eftugere non detur) ' defendere, & non per intervalla temporis uti dictum eft * fupra ; v rum 11 quifpiam bona mea vicknter furripere * conaretur, aut me extrudere poflefiione mea j in eo cafu, * poffcm me defendere conira adverfarium.' * C. ;8. n. 3, 4, &c. And t 5S J And Clarus, who is likewife quoted by the profecutor : Hsec autem conclufio quod pro fui defenfione, liceat ali- um interficere locum habet, non folum pro defenfione vitas et corporis fui, fed etiam pro defenfione rerum fua- rum. Et haec eft communis opinio iegiftarum. Nam (uc vulgo did folet) bona et res vitse aequiparantur.' What he fays of a thief, which the profecutors quote, goes upon fuppofition, that he ufes no violence ; but, if he defends himfelf with a weapon, he holds that he may be (lain impune. The truth is, that by far the greateft number of the doc- tors hold, that it is lawful to kill in defence againft an at- tack upon property only : fome of them hold it not be juf- tifiable, but culpable to kill in defending property only : but they all agree in one voice, that it is juftifiable to kill, when both perfon and property is attacked, which always muft be the cafe, when the property is annexed to the per- fon : and fuch was the panel's cafe. Covarravius, an eminent canomft, is one of thofe who have fome doubts, not if it be excufable, but if it be com- pletely juftifiable, to kill in defence of property alone; but he is perfectly clear, that there is not the .lead doubt, if the property is annexed to the perfon, fo that both are and muft be attacked at once. His words are : * ' Oportet * expendere an ille fit irregularis qui hominem occiderit, non ad propriae vitae neceffariam defenfionem, fed ad pa- trimonii & rerum tutelam, & fane probatur hunc non effe irregularem, quia licitum eft cuique defendere pro- prias res, et ad earum ncceffariam defenfionem hominem invaforem occidere : nempe eo cafu quo res aliter defend* non poteft ab invafione et rapina.' He then proceeds to ftate forne doubts and difficulties, which, he clears by ftating different cafes ; two of which are very much to the prefent purpofe : * Propouitur ea fpecies in'qua contingit homicidium ad neceflariam defenfionem rerum, ne ab . aggrefiore capiantur ; & profeto licitum effe hoc homi- cidium, deducitur ex multis, qure fuperius adduta fuere ; prefertim ubi raptor bonorum defendentem res proprias a rapina, vult offendere quo ad perfonam ; quem- admodum frequentifiime accedere poterit : nam cum quis a raptore defendit res proprias, aut raptor abftinec a rapina, & tune jam nullfus occifiouis adeft cafus, aut * Opp. vol. I, p, 697. n, 6. PI 699, ' ipfe [ 56 ) c ipfe contendit, ad hue invito defenfore, res raprere, non ' poteft ea contentio expediri abfque injuria & damno per- ' fonali defenforis, idcirco homicidium inde fecutum per* * tinet ad defenfionem perfonae fimul & rerum.' This is in point to the prefent cafe, for the panel's pro- perty was annexed to his perfon, anji fo both were, and could not but be, attacked at once. Had Lord Eglington got hold of the panel, it is clear he muft, and would have mal-treated his perfon, in order to get his property from him; and his fending for the gun deraonftrates, that he was refolved to mafter and deftroy the perfon, in order to take the property. There is very good reafon for holding, that it is culpable to kill a trefpaffer byjlealth, and that it is juftifiable to kill a trelpaffer by violence, for from the for- mer there is no danger, but there is from the latter, efpe- cially if paffion and refentment give rife to the trefpafs, and if the property which the trefpaffer wants to take be a weapon ; which was the cafe here. Lord Eglinton was, and cculd not but be in the fire and fury of paffion ; anx- iety for the prefervation of the game was his foible, and he muft have been provoked by the panel's imagined tranf- greflion upon it. He muft have been greatly irritated by the panel's refufing to give up his gun, and heated to the utmoft pitch by the panel's threatening to fhoot him rather than give it up. Indeed, this is but too evident from his Lordfhip's expofing himfelf fo long /to a loaded fowling- piece, which the indictment fays was cocked, and pre- fented at him, and the excefs of his rage is put out of all doubt, by his fending for his own gun to (hoot the panel. The panel, therefore, had all the reafon in the world to expeci, that if his Lordfhip got poffeffion of the panel's gun, he would have put him to death with it. He had not indeed realbn to expert this, when Lord Eglinton came firft up to him, and demanded his gun ; and it is to that period that part of the declaration mentioned by the profecutors refers *j but, he had all the reafon in the world to expect it, after his Lordfhip had been irritated and provoked by the circumftances above-mentioned ; and the panel, if necefiary, can prove, that Lord Eglinton fometimes beat people with their own guns, after he had taken them ; what then would he not have done to the pa- nel who had fo much provoked him? { Infor, p. 89. The [ 57 3 The Englifh authorities are likewife clear for the pane! upr,n tnis point, f Thus Hawkins, ' Neither can a man * jujiify the killing of another in defence of his houfe, or ' goods, or even of his perfon, from a bue private tref- * pafs ; and therefore, he that k:lis anothe*, who, claim- 6 ing a title to his houfc, attempts to enter it by force and * (hoots at him, or that breaks open his windows in order * to arreft him, or that perfifls in breaking his hedges, af- ' ter he is foi bidden, is guilty of man-Jlaughttr. And h ' who, in his own Defence, kills another, who afLults * him in his houfe in the day-time^ and plainly ap- * pears to intend to beat him, only is guilty of homicide, * fe defindendo, for which he forfeits his goods, but is par- * doned of courfe ; yet, it feems that a private perfon, ' and, a fortiori^ an officer of juftice, who happens ina- * voidably to kill another in endeavouring to defend him- * felf from, or fupprefs dangerous rioters, mayjuftify the * faft, inafmuch as he only does his duty in aid of public juftice.' Here it is moft juftly laid down$ that killing a trefpa/Ter' by force, though perhaps not ftricily juftifiab!e, is at leaft excufable, fo as to be held only manflaughter, the punifh- ment of which is elufory. This paffage is much more ac- curate than that J quoted by the profecutors from an af- ter-part of the book, which at firft will appear to be incon- fiftent with the former : but it will not appear to be fo upon reading the whole paffage, of which the proiecutors only transcribe a part, becaufe of the limitation it contains, and the authority upon which it is grounded, which is a paf- fage in Keylynge , which fuppofes the trefpafs to be al- ready done, and confirms the di(tin6lion above eftabliflwd between redf effing znd- prevent ing. The laft aurbority-ffee panel fhall quote upo'n this point, is a very cap tal one, being no lefs than that of Lord Chief Juftice Hale; his wo-ds are, |j ' If a man conies to take ' my goods as a trejpajjer^ I va^j jujiify the beating of him ' in defence of my goods, as hath been faid : BUT IF I KILL HIM, IT IS MAN-SLAUGHTER.' What anfwer can the profecutors make to this j or what anfwer to the decifion of this court in Maclean's caie, which goes upon the fame principle ? f Vol. I. p. 72. J Inform, p. 87. ' P. 131. U Pleas ol the Crown, vo!. x. 48. C. in fim H The [ 58 J f The authorities quoted from the law of England by the prcfecutors do not in the leaft impugn the above doc- trine: on the contrary they fupport it. Fofter fays, * The ' injured party may repel force with force in defence of his ' peirfon, habitation, or property, againft one who. man i- * fcftly intendeth, or endeavoureth, with violence or fur- * piize, to commit a 'known felony upon either.' The panel fays, that Lord Eglinton did attempt, with violence and furprize, to commit a known felony upon h's property. But fuppofmg it was only a trefpafs, where hath Fofter faid, that the killer of a violent trefpafTcr is guilty of mur- der? Blackftone's dodlrine is the fame with his. As to the authority of Puffendorff, which the profecu tors refer ty, upon examination it will be found to be againit them. In a paflage previous to that quoted by the profecutors, he exprefles himfelf thus % : ' Mais, lors que ' ccs voies de douceur ne fuffifent pas pour nous fauver, ou pour nous niettre en furete, il faut en venir aux ' mains. En ce cas la, ft 1'aggrefTeur continue malicieufe- ' ment a nous infulter, fans etre touche d'aucun repentir ' de les mauvais deflein qui le porte a vouloir deformais * vivre en paix avec nous, on peut le repoufler de toutes * fes forces en le tuant meme, s'il eft befoin ; et cela non * feulement lors qu'il attaque dire&ement notre vie, mais * encore s'il ne veut que nous battre, nous meurtrir, ou * nous priver de quelque membre qui ne foit pas abfulue- * ment neceffaire, ou nous depouiller de noire bun : Car on * n'a aucune affurance, que de commencemens il n'en vien- < dra pas a plus grandes injures ; et des la qu'un homme ' fe declare notre ennemi, comme il le fait en nous inful- * tant fans nous en temoigner enluite aucun deplaifir il ' nous donne en tant qu'eri lui eft, une pleine, et entiere * permifllon d'agir centre lui de toutes nos forces, fans mettre aucunes bornes anotrejufte defcn'e.' This he holds to be the law of nature ; and though in- deed, in the paflage quoted by the profecutors, he feems to think it ought to be fomewhat limited in a flate of fo- ciety ; yet it is plain his limitation chiefly points at the redrafting or revenging wrongs already done j for he ad- mits the right repouffer or depelUre^ in order to prevent an irreparable l f >fs : what he reckons fuch, he does not fay. But, with great fubmiflion to him, if the law of na- ture (lands as he fays in the firft paragraph, there is no \ Inform, p. 86. j Barbijrac's 1 uftendorff, Droit des Gem, p, 256. foun- C 59 ] foundation, even In the focial ftate, for limiting the right of preventing wrongs : for the law of nature is the com- mon law of every country, except in fo far as already faid, it is modelled and reftridted by the municipal law. How- ever, be his opinion what it may, it can never be put in oppofition to the accumulated authorities above ftated of the moft eminent German and Englifh lawyers. Befides, he has no where faid, that homicide in defence df goods is murder, and not mariflaughter. This, in a fubfequent paflage, he leaves entirely to be re- gulated by the municipal laws of different countries ; and to be lure, from what he fays in the frft paflage, he thought there was nothing immoral in killing in defence of goo.ds, nor any thing improper in legiflatures regulating defence in what manner they think expedient ; and to thefe regulations, he fays, their fubje&s fhould conform, f * Mais dans une fociete civile on n'a pas a beaucoup ' pres une liberte aufli entendue de defendre fes biens, ' a main armee, et la raifon en eft claire. Car fi pour ' 1# moindre injure on pouvoit en venir a de? acles de * hoftilite contre un concitoyen, ce fero-'t une fource de ' troubles et de defordres perpetue!?. On ne, doit done ' ufer de ce droit qu'autant que la conftitut'on du" gou- ' vernment civile et les loix particulieres de 1'etat nous le * permettent. Ou quoique les legiflateurs puifTent laifler " a chacun une pleine liberte de repouffer un aggreffeur * jufqu'a lui rendre un plus grand mal que celui qil'il * vouloit faire, cependant i!s defendent d'ordinaire aux ' particulier de fe porter aux derniers extremitez pour ne ' pas fe laifler ravir une chofe qui n'eft pas irreparable.' The law of this coumry, it has been already proved, permits homicide in defence, in the utmoft latitude; and indeed it would have been very unnatural if it had not; as otherwife the men of the moft generous fpirit in it muft have been enfnared, and its beft blood unjuftly (bed on the fcaffold, becaufe of the prafervidium Scotorum inge- nium, which has always imprefled them with a high fenfe of honour, and impelled them to quickneis of refentment j on which account, the motto of the country is nemo me impune lacejjet. The profecutors are pleafed to obferve, that if the ' panel's J doctrine were folid,, it would follow, that Lord Eglinton might have been juftified for killing the panel, t p - >73- t In'orai. p. Sf. Hz in [ 60 J in attempting to come upon his Lordfliip's lands againft his will. To this the panel anfwers, that fuppofmg his Lordftiip to have had a title to hinder the panel from coming upon his lands, a homicide committed by his Lordftiip upon him, fo trefpaffing, would have been murder, or juftifiable or .cxcufabie homicide according to circumftances. If the trefpafs had been done by itealth, the homicide would either have been murder or homicide highly culpable. If done violently with danger, or offence to his Lordfhip's perfon, the homicide would either have been juftifiable or pxcufable homicide. The profecutors are likewife pleafed to fay f, that if an heretor, who is not well acquainted with his marches, fhould attempt to poind his neighbour's cattle, which de faflo were not trefpafling upon his property, it is impof- fihle to maintain that a homicide committed upon him, by the proprietor of fuch cattle, would be juftifiable, though the cattle really were upon their matter's ground. To this the panel anfwers, that it is perfectly clear, that if fuch poinding were attempted by force, and the poinder warned of his danger, the homicide would at leaft be excufable, fo as to amount to no more than maiir {laughter. The narrownefs of this country has prevented fuch cafes from occuring in it j but in England many fuch cafes have happened, and in England homicide in cafes much narrower than any of the cafes above put, has been adjudged to be manflaughter, as will appear from the following 'authorities. Hawkins juftly fet forth, that J ' the killing of an officer would, in fome cafes, be man- 5 -(laughter only. Where the warrar.t upon which he ' ats, gives him no authority to arreft the party ; as ? where a bailiff arrefts J. S. a baronet, who never was * knighted : where a good warrant is executed in an ? unlawful manner; as if a bailiff be killed in breaking ' open a door or window to arrefl a man ; or perhaps jf ' he arrefts one on a Sunday, fmce 29 Car. 2. chap. 7. by * which all arrefts are made unlawful.' To the fame purpofe Fofter, whofe authority the pro- fecutors acknowledge ||, ' In the cafe of arrefts upon pro- f cefs, whether by writ or warrant, if the officer named * in the procefs give notice of his authority, and reliftance ? is made, and the officer kilied, it will be murder ; if in p. 85. J Pag. 86. || Difc. z. c..8. 7, 8, 9. [ 6i ] fafl fuch notification was made and the procefs legal\ * for after fuch notification, the parties oppofing the arreft, ated at their own peril.' * I have faid above, by way of * caution, if the procels be legal ; but I would not be un- ' derftood to mean any thing more than provided the ' procefs, by writ or warrant, be not defective in the * frame of it, and iffue in the ordinary courfe of juftice * from a court or magiftrate having jurifdi&ion of the cafe. ' But if the procefs be defective in the frame of it, as if * there be a tniftake in the name or addition of the per- ' fon on whom it is to be Executed ; or if the name of * fuch perfon, or of the officer, be inferted without au- * thority, and after the iffuing of the procefs ; or the of- 6 ficer exceedeth the limits of his authority, and is killed, * this will amount to no more than man/laughter in the ' perf9n wbofe liberty is fo invaded.' Thefe authorities afford a good anfwer to the cafes put for the profecutors, and an invincible argument for the panel in this affair, For the moft favourable light in which Lord Eglington's attack can be viewed, is that of an unlawful or erroneous private arreft. Now, if homi- cide in defence againft an erroneous public arreft be ex- cufable, much more muft homicide be excufable in de- fence againft an erroneous private arreft. And it is clear, the doctrine of the law of England on this point is moft excellent good fenfej for he who attacks another's perfon or property with violence, does it at his peril. If the attack was warranted by law, the homicide would be murder; if not, the homicide will be, and ought to be, no more than manflaughter. This is ftill clearer in violent private arrefts or trefpaffes. Mankind, no doubt, ought to curb their paffions, and it is- one of the chief objedts of law to reftrain them : but then the paflion of the,aggrefibr is the origo mali ; that neceflarily roufes the paflion of the perfon attacked, and the (hewing fome indulgence to his paffion, can have no bad effect in fociety. On the contrary, it has a manifeft tendency to preferve good order and peace, by affording an immediate and effectual check to lawlefs aggreflbrs. As to the argument drawn from the property in quef- tion being but a gun, and confequently of no confider- ble value, there is nothing in it. A profecution would have Iain againft any perfon who had ftoie this gun, or who had robbed the panel of it t- Indeed, the violent f Hawkins, vol. I. p. 65. taking [ 62 ] taking away from the perfon of another goods of any va- lue, and pelting him in fear, is robbery. However, if the value were to enter into confideration, that would not avail the profecutors ; for the gun was very valuable. But the value does not at all enter into conhderafion, for this, among other reafons, that the value of a fubjet depends upon the opinion and affe&ion of the proprietor ; and this holds in all forts of property f, in immoveables, moveables, and animals, for which the proprietor may have, an 3 commonly a&ually has, an infinite greater va- lue than indifferent perfons. This is called the pretium (*ffetionh) and takes its rife from the ajjbeiation of ideas which has a great effect upon the human mind. Hence a man has a pretium affettitmis for the farm in which he was born, or has cultivated himfelf. In the fame way a man has a pretium ajfeflionis for an animal he has bred up arid cherifhed. This is beautifully illuftrated in Nathan's parable to David : < He came unto him, and faid unto him, There were two men in one city, the one rich and the other poor. The rich man had exceeding many flocks and herds, but the poor man had nothing fave one ewe-lamb, which he had bought and nouriihed up, and it grew up together with him and his children ; it did eat of his own meat, and drank of his own cup, and lay in his bofom, and was unto him as a daughter : and there came a tra- veller unto the rich man, and he fpared to take of his own flock and of his own herd to drefs for the wayfar- ing man that was come unto him j but took the poor man's lamb and drefled it for the man that was come to him. And David's anger was greatly kindled againft the man ; and he faid to Nathan, As the Lord liveth, the man that hath done this thing (hall furely die.' This is a decifion of a judge after God's own heart, which proves that the value is immaterial ; and if that judge thought it was juft to punifh the rich man with death, after he had taken away the lamb, he alfo muft have thought it juft in the poor man to have refitted the rich man, even to. the laft extremity, in defence of the lamb. And even for trifling moveables men have the fame pretium affedionis. There are few perfons who have not bad in their pofleffion, fome time or other, mpveablet ) See Locke's Effay, book. . c. 83. $ a Sam. ch. xii. vcr. i. ctfij. which [ 63 ] which to them were of ineftimable value from the aflbci- ation of ideas, though to others they would appear trifling, fuch as a ring, a cane, &c. This feeling was well under- ftood by an author juftly celebrated for his knowledge of human nature; and upon it one of his moft mafterly per- formances is founded, the cataftrophe being accomplifhed by the lofs of a handkerchief. He introduces a hufband giving his wife a handkerchief, with this folsmn in- ftrution : Make it a darling like your precious eye ; To fafe't or giv't away were fuck perdition As nothing elfe could match. The panel had the fame feeling and pretium affeftlonis for his gun, which was a valuable one and an old com- panion ; and the circumftance of his being an old foldier contributed much to make him Determined rather to part with life than with his gun. Every foldier reckons it the greateft difgrace to have his arms taken from him : no wonder then the panel thought, with regard to his gun, that To lofe't or giv't away were fuch perdititn J?s nothing elfe could match. > As to the argument, that the law ought not to allow killing in defence of property, becaufe that may be reco vered by le^al procefs, there is nothing in it either. The legal remedy, in order to obtain reftitution and reparation, muft and cannot but be extremely defeftive ; unlefs the robber or trefpafTer pleafe, it never can give re- ftitution, except in the cafe of unmoveables, fuch as land or houfes ; and even thefe the invader may damage irre- parably, by deftroying the planting on an eftate, the paintings and ornaments in a houfe, &c. but in move- ables, after the pofleflion is taken away, the property is for ever gone, unlefs the robber or trefpafier pleafes j for, he may put them away or deftroy them ; it is only in things called fungible, fuch as money, that reftitution can certainly be got. AnJ, as to the reparation by damages and cofts, they are feldom given to the -full extent, and a pretium affettionis is never allowed f . ' Sextus quoque Pedius ait, pretia \ L. 33, pr. ff. ad leg Aquil. * rerum [ 6 4 ] ' rerum non ex affe&ione, nee militate fingulorum, fed ' communiter fungi. Itaque eum qui filium naturalem * poffider, non eo locupletiorem efie, quod eum plu- * rimo li alius pofliderit redempturus fuit. Nee ilium qui * fiiium alienum pofTidcr.t tantum habcre quanti eum patre * vendere poflet. In lege enim ( aquilia cbnfequimur et * amijffi dicemur, quod aut confequi potuimus, aut erogare ' cogsmur.' And, as to cofts, it is well known they are fo taxed by all courts of juftice, that the party prevail- ing never gers all that he has difburfed in peiTonal ex- pences and other articles : and hence an Englifh fatyrift f introduces a man faying, * That he had been ruined by a ' decree vvlvch. he had obtained in Cnancery, with cofts.' From a!l which it is evident, that the law cannot give re- ftitution ; fo that when a moveable is lavifhed from a man, all that remains with him is a claim at law for a thing of a different nature, "viz, compenfation by a fum of money, which, for the moil part, is inadequate. Befides, in a free country, the law is, and muft be ex- tremely tedious and expenfive. In Turky, it is believed, the panel might have recovered his gun, or the value of ir, in a few hours, and at the expence of a few {hillings : but in this country, it is perfectly clear, that LordEglinton might, and in all probability would, have put the panel to the trouble of a litigation for two years, and the expence of 200 /. fterling, before he got either gun or value: a pro- cefs might have been brought for it, no doubt, before tre fhenff, and might foon have been ended before that judg ; but then it was removeable by advocation into the Court of Seffion, and from that court, by appeal, to the Houfe of Peers ; and it is a moderate computation to allow but two years, and 200 /. fterling for the endurance and expence of fuch a courie of litigation, which, in all probability, Lord Ellington would have carried through, on account of his anxiety for the game-law, and other circumftances. We have feen, not very long ago all that courfe of litigation run for futjtfts of fiill lefs value than ihis mufket. Not many years a?o a qufftion about a rolling-ftone was liti- gated before the (heriir, and afterwards removed into the Court of Seffion by advocation. The fact, it is believed, appeared to be, that a large rough ftone had been wrong- oufiy taken by one perfon from the quarry of another, and fhaped into a roiiing-ftone, and the queftion was, f Swift* whether C 6 5 3 whether the proprietor of the quarry had an action for the ro!lina;-ftone, or only the value of the (tone in its ori- ginal, ftate ; beca.ufe of the fpecification bvr which it had been fafliioned from a block unto a roller; this was the fubjedi of a hearing and informations, and the court, it is believed, very juftly decreed that the plaintiff fiiould reco- ver 5 s. and the defendant retain the ttone. This caufs did not go to appeal ; but a quefHon about a Highland ox f, not fo valuable as the panel's gun, was not only obftinately litigated before the court of Seffion, but an appeal taken and profecuted before the Houfe of Lords, and the plaintiff having only got three guineas as the value of the ox, but no cofts, fuffered greatly by the victory. The panel by no means mentions thefe cafes with a view to reflect on the law of this country, which he is feniible is as efficacious and expeditious as the law of anv free country can be : but the law of every country muft be defective, and the-law of every free country muft be te- dious and expenfive ; hence it is a maxiit that beati poj/i- denteS) which is emphatically tranflated by an eld proverb-, mentioned by Lord Stair, * Pofieffion is nine points of he * law :' and therefore, fuch being the nature of legal remedies, jt would be abfurd and unjuft in the la-v, as argued above, to fuperfede the natural right of defence againft violence, which is a complete and effectual remedy, and oblige perfons attacked to fubmit to ( injuries, and be- take themfelves to a remedy almofl always inadequate and incomplete. ( What has been argued above will, it is hoped', fufHce and fatisfy as to the right of private defence, in order to prevent a robbery or trefpafs upon property. The panel comes therefore to the next circumftance in his favour, under this branch of the argument, viz. That the defence here was lawful, being made in order to pre- ferve his honour ; for the panel holds i f . to be clear and no- torious, and what every man's feelings mult evince, that th^ forcibly taking a man's gun from him is a moft atrocious injury and affront, as it implies and expreffes the greateft fuperiority and contempt on the part of the taker, and the utmoft meannefs 3nd pufilanimity on the part of the perfon who fuffers it to be taken. I 1/46. M'Farlane againft Napier. See Elackfi-. Com. b. 3. "c. 24. par. i, n. 9. I The [ 66 ] The profecutors in anfwer to this contend, that honour is not a nomen juris f. This is a miftake, as the panel is advifed, and all the lawyers whom the profecutors themfelves quote upon other points, are agreed againft them upon this. Thus Clarus in the place above quoted ; * Idemque et multo magis di- cendum eft, quod liceat alicui alterum interficere pro defenfione proprii honoris, nam periculum famae asqui- paratur periculo vitse.' In the fame way Puffendorff: Comme prefque tous Jes peuples du monde mettent 1'honneur au meme rang que la vie, on a la riafon de fou- tenir que chacun peut auffi le defendre, en tuant meme celui qui veut le lui ravir.' And in the fame way Carpzcvius : ' Ceffit quoque psena gladii in homicidio necefiaiia, quod non dolo fed coacte cb vitae, corporis, honoris^ facuitatumque defenfionem committitur.' For the fame reafon, Grotius and Cccceius, above-mentioned, hold it lawful to kill in order to avoid a kick or a blow; and fo likewife fays Hawkins in the paflage above recited, where many authorities are quoted. The profecutors were pleafed to proceed to obferve, that it was ' rather too ludicrous to fay, that a man whofe former rank in life was no other than that of a common foldier, and who at prefent is an inferior of- ficer of excife, was in honour called upon rather to talce away the life of his fellow-creatures, than yield the pof- fefiion of his gun.' But, with fubmiflion, the obfervation upon the panel's rank and office in life might have been fpated ; it is of the middling kind, and it did not, nor could not deprive him of the title he had to be treated like a gentleman : that he had fuch a title is moft certain ; he was the fon of a gentleman ; as weK born as any in Scotland. It would be very hard upon the gentlemen of this country, many of whom, though of very ancient and honourable families, have but fmali eftates, if their fons were to be degraded from the rank and confideration of gentlemen, becaufe their fathers, on account of them angufta doml^ or the ex- pence attending a numerous family, were not able to breed them to the moft lucrative and honourable employments. He who is born a gentleman, and has not mifoehaved, is entitled to be treated as fuch, whatever his circumftances may be. Belifarius, even when he* begged, did not forfeit the character. But whether the panel be a gentleman or f Information, p. 80. Ibid; not [ 67 ] not is really of no confequencej for he is a Britifh fub- ject, and, as fuch, entitled to refent and refift every at- tack accompanied with injury or affront, even from the greateft lord. The profecutors next proceed to argue that the panel's behaviour upon the occafion was difhonourable ; for that if he had been a man of honour, he ought to have done one of two things j and firft, they fay, he ought ' to have 6 laid afide his gun and engaged with the Earl upon equal ' terms.' This is indeed too ludicrous : for it means, if it means any thing, that the panel (hould have given up his gun, or al- lowed it to have been taken by Lord Eglinton or his fer- vants, which muft have been the confequence of his laying it afide, and then offered to box Lord Eglinton. Now, fuppofing that an offer to box was proper for a man of honour, yet it would have been very unreafonable to have required the panel to do fo ; for Lord Eglinton was the younger and ftronger man, fo that the panel would have been no match for him, as he, though naturally a ftrong man too, is advanced in years, and affticiea with feveral infirmities. , f The other alternative which the profecutors give the panel is, ' He ought to have challenged him to fingle combat, and have waited till the Earl was properly arm- ed for that purpofe ; but when in place of following that courfe (which might have been expected from one who pleads the point of honour) he pours a loaded mufket into the bowels of a man unarmed and to- tally defencelefs, the action muft be condemned not only as barbarous and cruel, but as moft difhonourable. ' This argument is purely rhetorical, and, like all the other arguments of the profecutors, calculated to lay a fnare for the prejudices of mankind. Had the panel, when Lord Eglinton came firft up to him and gave him bad names, jnftantly fired upon nfn, he would have ai- ed very improperly. But the panel did not do fo : he endeavourejj; to pacify his Lord (hip with a foft anfwer to no purpoftfTj- he even, when his Lordfhip advanced upon and afTaulteaVhim, did riot fire his piece; he threaten- ed to do fo in order to intimidate, but he did not execute his threats : he fled- from before his Lordfhip ; (which by the by is more than many lawyers hold he was obliged } Information, p. 81. I 2 to [68 ] to do) he retired for 120 yards till he could retire n* more. If he didsfire, what made him do fo ? His fall. It is plain from the circumftances of the cafe, that he did rot fire the piece fo long as he had the ufe of his limbs or his tempers but wh^n deprived of both thefe, when irri- tated by a fall which was, occafioned by an unjuftifiable attack, if he did fire the piece, it was neither difhonour- able nor murc'cr'in the eye of the law. The panel now comes to the laft circumftance under this head, viz. That he acted in defence of his life ; and this the panel apprehends can admit of no doubt, for it is not difputed,.that, before the panel's piece was fiied, Lord Eglinton had threatened to (hoot him, and fent his fervent for his own gun for that purpofe, and that the fervant with the gun was come up within two or three yards of Lord Eg'inton ; after that, either the panel was in periculo vita Lonjlitutus, or elfe that txpreffion has no meaning. It is faid far the profecutors, that Lord Eglmton's gun was not loaded ; but how could the panel know or fufpecl that to be the cafe ? Whether it was fo or not he cannot fay, but certain it is, he believed, and had all the reafon in the world to believe, that it was loaded, and that it was fenc for in order to be ufed for the declared purpofe for whLh it was fent for. Upon what principle ran it be maintained, that the panel ought to have wailed till Lord Eglinton got the gun into his hand, in order that he might be in a capa- city to put the panel to death ? How would that circum- ftance have made any difference ? Suppofe the panel had Ihot him in tb-it fituation, it might ftiil have been pretend- ed, that Lord Egiuitun would not have fired his piece. At that rate the panel muft have waited till Lord Eglinton fiied at him; and if, after that, the panel had killed his Lordfhip, the profecutors would have had a ftill better ar- gument againft him, becaufc, after his Lordfhip's fire was over, it is clear trie panel was in no danger of being Ihot. But the truth is, that it is only when the beginner of the (jaarrel has kilied the perfon attacked, and pleads that what he did amounts tq no more than manflaughter, that it is requiiite, it ihould appear that parties fought upon equal terms. Bui when the perfon attacked kills the aggrellor, it is not incumbent on him to (hew that they were precife- ly on equal terms, it is fufficient if he (hews that he was in imminent danger, fuffidt terror armorum. So fays Gail *, * De Pate publica, I. 16. n. 5. et feq. and [ 69 ] and all the reft of the doctors ; and common fenfe fays th fame thing ; nay, even terror armorum is not necefTary, as appears from the paflages above quoted from Carpzovius and Gomez, and the authorities referred to by them. Carp- zovius, to the paflage above quoted, adds, ' Nee enim pa- c ritas armorum in moderamine inculpatae tute'ae tam ex- ' ate et prsecife exigitur pro ut late deducet et probat (here * he cites a multitude of authors). Quin imo cum armorum ' fimilitudo et asqua'itas in aequilibrio civili confiftat, cui lex ' certa dari nequir, potius geometrica quam arithmetica pro- ' portione, et ex circumftantiarum qualitate diligenter in- ' fpecta et perpenfa aeftimanda erit. Ita nimirum ut fi of- * fenfus abfque validioribus armis quas in promptu habet, * faluti fuae confulere queat innoxie, tune imparia arma de- ' ponere et comoar telum fi quod in promptu eft arriperc ' debeat : At fi incontinent}, periculo in mora exiftente, ' comparari flatim par telum nequeat, aut evidens immi- ' neat periculum, puta quod quis adeo fubito invadatur, vel ' aggrefior longe robuftipr et fortiorfit, vel invafus in mag- * nas anguftias fuerit redatus, tune etiam ARMIS INER- ' MI reiiftere licebit.' Does not every word of this apply direclly to the panel's cafe ? It clearly does ; and it is moft incontrovertible, that the panel was inpericulovii tors, of which he may have omitted to take particular no*- tice. The ftrange pofition, that a fevere arbitrary punifh- ment ought to be infiiScd, even though it fhoufd appear that the piece went off by mere accidont, merits no anfwer; neither does the fanatic argument founded on a text of the New Teftament. The panel has only to ob r erve further upon the infor- mation for the profecutors, that it very improperly quotes the law of England, where the profecutors think it can be of ufe to them ; but when they fee it makes diretly againft them, it is pretended, that there is no arguing from the law of one country to that of another *. To this the panel anfwers, that it is not upon the fratute law of England, but upon the common law, that he founds. 'He is adviled, that it is -for him in every point j and that it is clear as fun-ftiine, if he were to be tried in England, he would not fuffer death, but would be either altogether ac- quitted, or at moft found guilty of manslaughter only. If fo, the panel, for his own fake, and for his country's fake, hopes that the dictates of the criminal law of England wiH bf liftcned to. It is the law of a wife and a free people; * Inform, p. 91. it C 7* ] it Is the law, perhaps, in the world that has been- improved by experience and matured by time into perfection ; it is the law that governs our brethren, the inhabitants of the fame ifland, and the fubjects of the fame king. What an appearance would it have, if a man {hould be hanged like a dog in this country, who would be difmified from the Englifh bar, either with impunity or a flight puni&ment ? The panel has proved, he knows, he is certain, that the law of England is for him ; and if doomed to die here, he, with the rope about his neck, will caft a wifhful, though unavailing, look to the South, and lament the day he was born a Scotchman ! But the panel has no reafon to apprehend fuch a fate; for -he has already {hewn, that the law of his own country is not Angularly unjuft and unmerciful ; bur, on the con- trary, it concurs with the laws of other countries in dif- tinguiftinj between murder and manffoughter, and has put. the latter on a better footing than it is even by the law of England, as itexempts it from capital punifhment, but allows an arbitrary one to be inflicted, if an excels has been com- mitted. The panel, before concluding, muft take notice of one circumftance, which was much infifted on in the pleadings for the profecutors, though it has been dropped, and not in- judicioufly, out of their information ; he means, the high rank of the deceafed Lord, whofe death it was his great mis- fortune to occafion. The panel is far from meaning to maintain levelling principles : he knows the conflitution of this country, has acknowledged different gradations of rank, and conferred certain privileges upon thofe who hold the higher place ; but then the law has been at much pains to fix their limits ; even the forms of appellation are fettled, and the order of precedence has been regulated. A man of rank has ajuft title to the privileges the law beftows, but hecanpot go be- yond them ; and if he claims more, and enforces his claim with violence and injury, the meaneft fubjecVis intitled to refent and refift. But the panel is perfuaded, that the rank of the noble de- ceafed will make no impreffion upon any of the honourable perfons who may have occafion to form an opinion upon his cafe. If it does imprefs any of them, he ought to labour to get quit of !uch prejudice ; and the beft way of doing fo is this : let him fuppofe, that the panel here was not Mungo Campbell the excife officer, but a noble perfon, equal in rank, [ 73 I rank, and in every other refpect, to the deceafed : or rather let him fuppoie, that it is not Mungo Campbell who is un- der trial for killing Lord Eglinton, but that it is Lord Eg- linron who is under trial for killing Mungo Campbell ; and then let him afk his confcience, if, in fuch circumftances, he could pronounce condemnation ? If his confcience fays no, or hefitates about the matter, let fuch perfon have a care how he condemns this panel to die. All the panel requires of mankind is, that they would fuppofe themfejves in his circumftances, and then alk them- felves, if they would have given up their gun ? The panel has afked this queftion at many gentlemen, and the anfwer he always received was, No. After that, let this queftion be afked, what then would you have done ? Would you have (hot Lord Eglinton rather than have allowed it to be forcibly taken from you ? This is a trying queftion. The panel has put it to many, and the anfwer he always receiv- ed was, I do not kno^v what I would have done, but I would not have allowed my gun to have been taken. Men who find that their hearts make the fame negative or uncer- tain anfwer, (hould have a care how they condemn the pa- nel to die. The putting a man to death by the hands of the executioner is a homicide: if the fentence be according to Jaw, the homicide is juftifiable ; if it proceed from an error in judgment, it is excukble j if from partiality or prejudice, it is murder. This information has drawn out to a great length, but the panel will make no apology on that account ; he knows his judges too well to imagine they will grudge time or trouble on fuch an occafion. If in the courfe of this long and delicate argument any impropriety of expreflion has efcaped, he hopes it will be believed, that no qffence was intended, and that fome allowance wiil be made even for the anxiety of thofe that manage his defence, who think it is the duty of counfel to plead, as it is that of judges to determine, without refpecl: of perfons. In refpecl whereof \ &c, JO. MACLAURIN, K APPENDIX, [ 74 3 THE panel, fmce his information was written, has providentially met with a psper which he thinks of great confequence. This paper is a printed copy of the in- dictment, as originally drawn byfomeofthe counfel for the profecutors, the panel fuppofes Lord Advocate. In the firft draught of the indictment, it appears from this copy, that feveral facts were admitted or fet forth, which have been fupprefled in the indictment that has been ferved upon the panel. The printed copy of the firft draught of the in- dictment is as follows : ' Yet true it is and of verity, that you, the faid Mungo Campbell, have prefumed to com- mit, and are guilty, actor, or art and part of the faid crime, in fo far as the deceafed Alexander Earl of Eg- linton, having, upon the 24th day of October, in this pre- fent year 1769, or upon one or other of the days of that month, or of the month of September preceding, or No- vember following, gone out from his houfe of Eglinton, in the county of Air, in his coach, to look at fome of his grounds ; and being told by one of his fervants, when upon the road from Saltcoats to Southennan, within the parifti of Ardrofian and faid county of Air, that he ob- ferved two perfons, one of them with a gun, at a fmaU diftance, upon his Lordfhip's ground ; upon which the Earl, who, by an advertifement in the news- papers, had forbid all unqualified perfons to kill game within his eftate, came out of his coach and mounted a horfe, which was led by his fervants, and unarmed, leaving in his coach an unloaded gun with powder and foot, he rode towards the two perfons, who in the mean time went off the Earl's grounds into the adjacent fands ; and he having come near to the two perfons, and difcovered the one c with the gun to be you, the faid Mungo Campbell, he ' accofted you by faying, ' Mr. Campbell, I did not ex- ec pect to have found you fo foon upon my grounds, after * c the promife you made me when I laft catched you, when " you had (hot a hare;' and the Earl having thereupon * defired you to deliver your gun to him, you refufed fo to ' do ; and, upon the Earl's approaching towards you, you * cocked your gun and prefented or pointed it at him ; and iir-on. the Earl's. then faying, Sir, will you flioor me ?' * you 7 t 75 f ' you anfwered, th at you would, if his Lordfhip did not keep * off; to which the Earl replied, that if he had his gun he ' could {hoot pretty well too, or ufed words to that import, ' and defired a fervant to bring his gun from his coach, ' which was then at fome diftance ; and the Earl having 6 difmounted and walked towards you, leading his horfe in * his hand, and without arms or offenfive weapons of any * kind, you retired or fteppad backwards as he approached, ' and continued to point your gun at him, defiring his ' Lordfilip again to keep off, or by God you would {hoot ' him : and a fervant near to the Earl having begged of ' you for God's fake to deliver your gun, you again refufed, * faying, you had a right to carry a gun ; to which Lord * Eglinton anfwered, that you might .have right to carry e a gun, but that you had no right to carry a gun upon his ' eftate without his liberty j to which you replied, that ' you begged his Lordjbip's pardon^ but flill perfifted in refuf- ' ing to deliver your gun ; and you, by ftriking your fooc ' againft a fmall ftone, having fallen upon your back, ' when retiring, and keeping your gun pointed at Lord 4 Eglinton, as above defcribed, the muzzle of the gun came ' thereby to be altered in the direction from Lord Eglin- * ton, and to be pointed near flraight upwards ; and Lord ' Eglinton, who was only diftant from you two or three ' yards, having flopped or flood ftill upon your falling, you^ ' as foon as you could, recovered yourfelf, and refting upon ' your arm or elbow, aimed or pointed your gun to the faid ' Alexander Earl of Eglinton, and wickedly and feloniouf- ' ly fired it at him ftanding unarmed, tub ere he was when * you fell, -fmiling at your accidental fall ; and by the fhof * he was wounded in the belly in a dreadful manner, the * whole lead-fhbt in the gun having been thrown into his ' bowels ; of which wound the faid Alexander Earl of ' Eglinton died that night about 12 o'clock'; and you the ' faid Mungo Campbell, after perpetrating fo cruel, wick- 4 ed, and barbarous a crime, did immediately run to one of * Lord Eglinton's fervants, who had brought his gun from * his coach, and who was ftanding at fome-diflance, and * about to have loaded her^ and endeavoured to wreft the gun * from him, but-was prevented by the afliftance of another ' fervant ; and whn the two fervants were engaged with * you to defend the gun, and endeavouring to fecure you, * the Earl, who was then fitting on the ground, called to * the fervants to fecure the man, for he had fhot him, but * n.ot to ufe him ill, or ufed words to that purpofe and ef- ' feft: r 76 i fe& : and, upon your being brought near to Lord Eglin* ton, he faid to yourfelf, ' Campbell, I v^ould not have- 1 (hot you.' And yo,u the faid Mungo Campbell, when carrying from the place where- you committed the afore- faid crime to Saltcoats, being a/Red if you did not repent what you. bad done^ answered in fubjiance, that if & was to do you would do it again, a: you would yield your gun to no per Jon j and being ajked, by thofe who attended you as a guard from Saltcoats to the prifon in Irvine , how you came to Jhoot Lord Eglinton? you gave an account of the matter in fubjiance as fallows : that Lord Eglinton having demanded your gun, which you refufed,ysu retired, having your gun cocked, till you fell, when, upon lifting up your head, and feeing a gun coming to Lord Eglinton, you hadfliot him, believing, that if he had got the gun, he would have Jhot you ; and that it was better to JJjoot than be /hot. And the faid Alexander Earl of Eglin- ton, when within two or three hours of his death, in giving an account to John Moore, furgeon in Glafgovy (who was called to give what affiftance he could in the way of his profeflion) of what had patted between you and him, did, in fubftance fay, that you, the faid Mungo Campbell, did take an aim at him, and (hoot him wil- fully ; and which account of the matter was given by the faid Alexander Earl of Eglinton with the greatett calmnefs, and without the lea/I appearance of rancour or refentment of what had happened,' &c. XVhat is printed in the Italic character was afterwards ftruck out by the profecutors, and printed copies of the indi&ment thrown off without thefe paflages in them ; and it is with the indictment, fo amended, that the panel has been ferved. But it will not be denied, and, if it is denied, it will be eafily proved by the panel, that the in- dictment was fo drawn at fi:ft, tnat it was fo printed off at firft, and that the printed copy herewith produced is one of the copies of the firft impreffion then thrown oft. The panel does not mean at prefent to argue upon the import of the alterations : it is very obvious ; and confcquently fo tnuft the reafons for making thefe alterations be. JO. MACLAURIN. UC SOUTHERN REGIONAL LIBRARY FACILITY A 000 053 731 6