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<h the 
 gun to be you, the faid Mungo Campbell, he accofted you, 
 by faying, Mr. Campbell, I did not expect to have found you 
 fo foon upon my grounds, after the promife you made me 
 when I laft catched you, when you had (hot a hare j and 
 the earl having thereupon defired you to deliver your gun to 
 him, you refuted fo to do; 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 
 fhoot me? you anfwered, that you would, if his lordfhip 
 did not keep off ; to which the earl replied, that if he had 
 his gun he could fhoot pretty well too, or ufed words to that 
 import; and defired his fervant to bring his gun from his 
 coach, which was then at fome diftance ; and the earl having 
 tlifrnounted, and walked towards you, leading his horfe in 
 jhis hand (without arms or offenfive weapons of any kind) 
 you retired, or ilcpt backwards, as he approached, and con- 
 tinued
 
 f 3 3 
 
 tinued to point your gun at him, defiling his lordfhip again 
 to keep off, or, by God, you would {hoot him : and a fer- 
 vant, 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 Eglintoun anfwered, that 
 you might have a right to carry a gun, but not upon his 
 cftate without his liberty ; but you ftill perfifted in refufing t > 
 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<tion of courts 
 of different kinds. It is true, that Sir George Mackenzie 
 does fay, that the juftices, or judiciary court, -has a cumu- 
 lative iurifdi&ion with the admiral in crimes committed at 
 fea ; but it will be noticed, that he wrote before the a<St 
 1681 : and a late learned judge of this courf, in manu- 
 fcript notes upon Mackenzie, has obferved, *' that the tnat- 
 *' ter wai now clear by the act 1681, and that in the cafe 
 " of , and others 
 
 " 1723* the lords were of opinion, that the judge-admiral 
 " h?.d a privative jitrifdiclion in prima inftantia ;" but the 
 diet was a'eferted ante fententiam. The cafe here referred 
 
 C to,
 
 to, appears from the records of the court, to have been 
 that of Thomas Lamb,, who was indicted on the I3th of 
 December, 1723, for deforcing cuftom-houfe officers, and 
 violently entering a fhip in a harbour; but who having 
 objected that the crime could only be tried by the admi- 
 ral, the kint-'s advocate thereupon dcferted the diet ; and the 
 fame manufoript notes contain an opinion, " that as the fei- 
 t fion may reduce the admiral's decreets inciviUbtts, ever 
 *' fmce the a& a paritate^ the juftices may reduce in crimina- 
 " llhus and their (i. e. admiral's) privative jurifdiR'nn is 
 * c only declared (m the firft inftanre) therefore their pro- 
 " cetdings may be reviewed ;" which {hows that this 
 court's having a power to review the admiral's proceed- 
 ings, does not at all impeach his having a privative jurif- 
 didion for trying crimes in the firft inftance that have 
 been committed within his leiritories. In fhort, Sir George 
 Mackenzie appears to have formed his opinion not upon 
 principles or ftarutts, but entirely upon the fait of fome 
 crimes committed within the admiral's territory, having 
 been tried by this court, particularly piiacies committed at 
 fea in the years 1610 and 1613: and befides thefe in- 
 ifances which he mentions, it is faid that in the year 
 1672, one Beith . , a minifter, was tried 
 
 for killing a man on board a boar, wiihin a port of the 
 Iflr of Arran. But none of thefe cafes can fufiice to efta- 
 blifh a jurifdiicn in this court, which it had not by law; 
 efpecialiy as it appears from the records, that no objection to 
 the competency of the court was there proponed, and that 
 they all happened before the a> 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<Stion as to caufes was meant. The 
 al ought to have provided, that he fiiould. be the fole judge 
 
 D 2 com-
 
 [ 20 ] 
 
 competent to all caufes, civil and criminal, arifing upon th* 
 fea, or in 1 harbours, creeks, &c. 
 
 5th)y, As to civil caufe?, it is a point not difputed!, that 
 his jurifdi&ion is univerfal in point of territory, 2nd limited 
 ration e caufce. He is the fole judge competent in the firft in- 
 ftance, in all charter-parties, policies of infurance, and other 
 contracts of a maritime nature, whether entered into at fea, 
 or upon landj a contract of that fort entered into in the city 
 of Edinburgh, muft be judged of by the admiral ; and on 
 the other hand civil caufes, not maritime, arifing upon the 
 fea, or in harbours and creeks, >&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- 
 <c rant to fet the petitioners at liberty, upon finding fuificient 
 " caution ated in the books of Adjournal, each of them 
 *' under the pain of 300 merks, that they fhould anfwer to 
 *' any criminal libel, or indiclmenr, that fhould be exhi- 
 " bite againft them before the court of jufticiary within the 
 *' fpace of fix months after the date of the bail-bond, at the 
 ct inftance of his majefiy's advocate, for the crimes mentioned 
 *' in the petition/' The court here underftood themfelves to 
 be cumulative with the judge-admiral, with refpe& to mur- 
 der committed at fea, as they obliged the pannels to find bail 
 to ftand a new trial before themfelves. 
 
 As to the cafe of Lamb and others, mentioned on the 
 other fide, none of them go further than to prove the admi- 
 ral's exercife of a cumulative jurifdidtion with refpeft to crimes 
 committed at fea, or in ports, &c. and this he has acquired 
 by prefcription in the fame way as he has done the cognizance 
 of civil caufes mercantile. Neither does Lord Royfton, in 
 his manufcript notes, give any thing more to the admiral 
 than a privative jurifdiciion in maritime caufes, in terms of 
 the act 1681. It is faid, that a declinature of the court was 
 moved in the cafe of Lamb ; but the record does not fhow 
 what that declinature was, or the proceedings on it. Nei- 
 ther does it appear whether the crime tried was maritime or 
 otherways. 
 
 It was faid, that if the court of jufticiary could try mur- 
 der committed within the admiral's jurifdiclion, this would 
 go the length of murders committed, not only within the 
 narrow feas or ports belonging to Scotland, but in the moft 
 diftant parts of the ocean ; which the pannel's counfel were 
 pleafed to figure as fomething extremely incongruous. Bur, 
 with fubmiffion, where does the incongruity lie ? when upon 
 aJl hands it is admitted, that the courts of fdfign and jufti- 
 ciary
 
 r 24 i 
 
 clary can do every thing in the fecond inftance, that the ad- 
 miral can do in the firft ? Thefe fupreme courts being com- 
 petent to review the admiral's fentences, have clearly a ju- 
 rifdi&ion over his territory ; and they do not difpute with 
 him that certain matters muft, in the firfl inftance, be tried 
 before him. There is no defect of jurifdi&ion, but merely a 
 ftatutary injunction, that maritime caufes fhall firft be tried 
 by the admiral, fubjecl to the review of the fupreme courts. 
 If the admiral can try a crime committed on the moft diftant 
 parts of the ocean, there can be no doubt that the court of 
 judiciary can do the fame, though, in order to enable both 
 the one and the other to do it with effect, the perfon guilty 
 muft return to Scotland, fo as to come within their power, 
 and be perfonally brought to trial. 
 
 It was next faid, that foreigners coming accidentally here 
 on fhipboatd, ought not to be tried by the municipal laws of 
 the country, but by fome general law of nations. But in 
 the firft place, this obfervation, when applied to the practice 
 in Scotland, fails in one material particular, viz. that the 
 admiral, in criminal cafes, tries according to the municipal 
 laws of Scotland. 2dly, The obfervation could at any rate 
 go no further, than to make it expedient that he fhould have 
 the cognizance over fea-faring perfens, as well as feafaring 
 matters : but no reafon from thence occurs, why, in cafes 
 which neither concern feafaring matters, nor feafaring perfons, 
 he fhould have an exclufive jurisdiction. At the fame time, 
 it has already been fully explained, that his jurifdiclion is 
 diftinguifhed rations caufe, in the fame way as ecclefiaftical, 
 military, or confiftorial jurifdiclion, and that his pretended 
 exclufive jurifdi&ion over a territory is without foundation. 
 
 It was argued, that originally under the feudal govern- 
 ments, all jurifdrclions were territorial and privative, and 
 particularly the jurifdictions of barons and lords of regality 
 in Scotland, who had a power of repledging even from the 
 juftice-courts. But whatever may have been the cafe with 
 rcfpecl to thofe ancient jurifdiclions, it is plain that the ad- 
 miral's was of a different nature. The power of repledging, 
 competent to barons, royal burroughs, and lords of rega- 
 lity, was much weakened, if not totally annihilated, before 
 the admiral's jurifdiclion had an exiftence. And even in the 
 carlieft times^ a baron who repledged was obliged to find furety 
 in the court where the criminal was attached, to do juftice 
 within year and day. Quon. Attach. Cap. 8. As foon as 
 the court of feflion was eftabl {bed, all courts in the kingdom 
 were rendered fubordinate to that court in civil matters, and 
 the power of repledging in criminal cafes was alfo by de- 
 grees
 
 C 25 3 
 
 gfees taken away. Thefe cafes, however, of barony and re- 
 gality jurifdi&ion have nothing to do with the prefent quef- 
 tion. 
 
 Another argument ufed was, that warrants and executions 
 ifluing from the feflion and jufticiary required the concurrence 
 of the admiral, in cafes where they were to be ufed upon the 
 fea, or in other parts of his fuppofed territory. 
 
 But when this matter is enquired into, it turns nut to be 
 of no confequence to the argument. When letters, of horn- 
 ing and poinding are ifTued in civil cafes, if a {hip or other 
 maritime fubjeci is to be affected, it is ufual to apply for the 
 admiral's concurrence, who writes on the back of the letters 
 in thefe words, " The judge of the high court of admiralty 
 " hereby grants his concurrence for putting the within letters 
 ** to due and legal execution as to all maritime fubje&s." 
 This proves nothing but that the admiral is the proper judge 
 in maritime affairs, and who has the powfr over maritime 
 fubje&s. In order to arreft a {hip his concurrence may be 
 thought neceffary; but it is an admitted point, that in civil 
 queftions, though arifingon board a {hip, if they are not of a 
 maritime nature, his jurifdi&ion is not privative. 
 
 As to criminal warrants, the practice is not uniform. In* 
 fiances happen every day of 'warrants to apprehend criminals 
 granted by the judges of jufticiary, being executed on board 
 fhips by the macer of jufticiary without any other authority. 
 An inftance occurred within thefe few months of two crimi- 
 nals being apprehended on board a (hip lying at 
 and carried to prifon by the macer, upon a warrant of that 
 kind ; and it can be pfoved by the macers and other officers 
 of the law, that this is a cafe which frequently happens, 
 
 At the fame time, it is believed that other inftances can be 
 given of applications made for the affiftance of the admiral's 
 officers to execute warrants on board a {hip ; and the reafon 
 of the practice feems to be this, that the meflenger who exe- 
 cutes a jufticiary warrant being conftituted ajheriffin that part, 
 for the purpofe of executing faid warrant, it may be doubted 
 how far his power of {herifffhip conferred upon him could 
 reach to parts which are beyond the ordinary bounds of a {he* 
 rifFs jurifdi&ion. The defel therefore, if there is any, lies 
 not in the want of jurifdid-tion in the court, but in the want 
 of power in the executional officer. 
 
 At the fame time it is more probable that the only mean- 
 ing of the practice is, that as all officws of the law are re- 
 quired to give their affiftance in executing fuch warrants, ths 
 macer of jufticiary, when he has occafion to goon board a 
 fhip, naturally calls for the affiftance of the officer of admi- 
 
 ralty,
 
 why, under whofe immediate infpe&ion all {hips are ; and fo 
 the moft part the admiral hears nothing of the matter, all 
 that is done being to take the officer's concurrence, who, ac- 
 cordingly, upon being defired, gives his affiftance in executing 
 the warrant. 
 
 It is plain, from what has already been faid, that the court 
 of judiciary has, at leaft, as ample a jurisdiction in point of 
 territory as the admiral court can poffibly have. Both their 
 commiffions are equally extenfive. The warrants of jufti- 
 ciary go into the fuppofed territory of the admiral, and are 
 every day executed there, fometimes with concurrence of the 
 admiral's officer, and as often without it. Every at of that 
 kind would be null and void if the court of jufticiary had no 
 jurifdiclion over that territory. Nay, the court, and the of- 
 ficers of jufticiary would be every day liable in the penalties of 
 wrongous imprisonment, were there any foundation for the 
 pretended exclufive jurifdic"lion of the admiral ; and it is plainly 
 of no confequence, that the admiral's affiftance, or rather 
 that of his officer, is fometimes required for the reafons al- 
 ready mentioned. 
 
 It was, in the laft place, faid, that the law of France, and 
 the law of England made in favour of the pannel's doclrine, 
 and particularly an ordonance of Lewis XIV. made in the 
 fame year with the at 1681. 
 
 It is immaterial to enquire what the laws of other countries 
 may be in a matter which depends on the municipal laws of 
 Scotland, and the conftitution of Scots courts. The profe- 
 cutors are unacquainted with the law of France, where the 
 admiral's jurifdicVion may poffibly be territorial in the fame 
 way as in England ; but from the authorities appealed to on 
 the Englifh law, they apprehend that no argument whatever 
 can be drawn from them to the prefent cafe. It would feem 
 that in England all crimes muft be tried as in a certain coun- 
 ty, and that crimes committed upon the high fea not being 
 within the body of a county, are tried by fpecial commiffions 
 of admiralty. The jurifdiclion there is diftinguifhed not ra- 
 tione caufcey but ratione territorit. All maritime contrails en- 
 tered into upon land are determined by the courts of com- 
 mon law ; and all matters of whatever kind which take their 
 rife upon the fea, are tried by admiralty courts. 
 
 At the fame time it appears from judge Hales, Vol. II. p.l6, 
 &c. and other authorities,, that the diftinclion of territory is 
 between land and water ; and that a crime committed, or 
 contract entered into upon the dry beach or fhore, though 
 within the fiood mark, falls under the cognizance of the 
 common law courts. The fpace between the high and low 
 
 water
 
 [ 27 J 
 
 water mark is interchangeable, being a part of the Tea when 
 covered with water, and parcel of a county when not co- 
 vered ; and the cafe of one Lacie is mentioned, where it was 
 found that if a man be ftricken upon the high fea, and die 
 upon the fhore after the reflux of the water, the admiral, by 
 virtue of his commiflion, hath no cognizance of that felony. 
 Had the prefent cafe therefore happened in England, there 
 would have been no doubt of jurifdi&ion. 
 
 And this leads the profecutors to conclude with an obfer- 
 vation upon the a6t 1681, which was omitted in the tourfe 
 of the argument, viz. that although the flood-marks or firft 
 bridges are mentioned in defcribing the admiral's juftice-ge- 
 neralftiip upon navigable rivers ; yet thefe expreffions feem to 
 be applicable fmgly to navigable river s, and not to the (hore 
 of the fea in other places. It may be necefTary, in the cafe 
 of rivers, to point out fome boundary of that kind between 
 the river and the fea, to fupply the want of a vifible boun- 
 dary j but with refpecl: to the fea-ihore, no fuch boundary 
 is neceffary, becaufe nature itfelf points out the diftinUon 
 between dry land and water, viz. where the dry land ends, 
 and the fea begins j or in other words, the margin of the 
 water at all times, whether at high or low fea. 
 
 If this obfervation be juft, the pannel in the prefent 
 cafe could have been been brought to trial no where elfe but 
 before your lordfhips, as the faft was not even committed 
 within the fuppofed territory of the admiral. And upon the 
 whole, as the prefent cafe has nothing to do with maritime 
 affairs, as neither a fea-faring matter, nor fea-faring perfons 
 are concerned ; as the unfortunate lord was murdered upon 
 the dry land, within a few yards of his own property ; and as 
 the court of judiciary is the fupreme criminal court of this 
 country, no reafon occurs why fo important a trial fhould 
 be fent to the admiral court. 
 
 JOHN DALRYMPLE replied, 
 
 THAT he had two propofitions to maintain; firft, 
 that the admiral has a general criminal jurifdiclion within 
 flood-mark ; and fecondiy, that that jurifdi&ion is privative : 
 for the firft, he refers to the following authorities. Prefident 
 Balfour, p. 629, in the reign of queen Mary : Melvil, p. 10, 
 and 1 1 ; and Craig, old edition, p. 378. In the reign of 
 king James VI, Sir George Mackenzie, p. 197 : and Stair, 
 p. 675, in the reign of Charles II. the ftatute 1681, and 
 Bankion, Vol. II. p. 540, who wrote lately. The fecond 
 propofttion is proved, firft, by the nature of jurifdidlion in 
 Scotland j fecondiy, by the nature of the admiral's jurifdic- 
 
 E 2 tion;
 
 [ 28 ] 
 
 tlon ; and laftly, by authorities of the Scots law. With 
 regard to the firft of tbefe, upon the conqueft of the Roman 
 provinces by the feudal nations, the old jurifdi&ions were 
 abolifhed, and new ones eftablifhed. All thefe new jurifdic- 
 tions were bounded by territorial lines, and were privative 
 in the firft inftance, though fubje& to the review of the king's 
 courts : the baron, the iheriff, the bailie of a burrow, the 
 lord of regality, and the proprietor of a private jufticiary, 
 all judged the people living within their refpetive bounds, 
 and were privative of other courts, the abfolute proof of 
 which is, that they could repledge their people from each 
 other, and from the king's courts. Quon. Attach, cap. 4. 
 Balfour, p. 48. Stat. 1488. cap. i. Leg. Burg. 35, and c. i. 
 Iter. Juft. p. 12. Nay, and the people were punifhed if they 
 fubmitted to any other jurifdition than their own. Quond. 
 Attach, cap. 27. Book I. cap. 32. Balfour, Tit. Judges. 
 Thefe original jurifditio.ns would have continued for ever 
 privative, had not the king's courts been made cumulative 
 with them by ftatute. The fupreme civil courts of the fef- 
 fjon, next of the daily council, and laftly, of the council 
 and feffion, were all made cumulative by different ftatutes ; 
 and in the fame way the fupreme criminal court, that of the 
 jufticiary was made cumulative with the original jurifdic- 
 tions, otherwife they muft have continued privative to this 
 day. The admiralty jurifdiclion was originally in the family 
 of Lenox, and paft by fucceffion to the crown, as heir to 
 that family. It was bounded by~a territory, viz. the flood- 
 mark ; and it could ceafe to be privative only, by one or two 
 ways, either in quality of the original creation, or a ftatute, 
 making the jurifdilion of the common-law courts cumula- 
 tive with it, neither of which was the cafe here. Secondly, 
 a fecond proof from the nature of jurifdiftion, is, that the 
 writ of no other court can be executed in the bounds of the 
 admiral j no horning, caption, poinding, and arreftment, or 
 warrant of the court of jufticiary, can go into his bounds 
 without his concurrence. The court of jufticiary cannot 
 have a jurifJition where it cannot execute any writ. Again, 
 the jurifdition in queftion is privative, from the nature of 
 the admiralty jurifdiclion. The jurifditions arife from the 
 neceflities and interefts of trade, for nations at firft would 
 not trade with each other, unlefs queftions, which arofe be- 
 twixt traders, were to be decided by the law of nations which 
 they knew, and not by the municipal law which they did 
 not know; and unlefs their perfons, when they went to the 
 feas and the harbours on the coafts of the foreign country 
 were to be judged by a judge who proceeded upon the law of 
 
 nati-
 
 C *9 ] 
 
 nations. Laftly, the authorities of the Scotch law fliowed 
 the jurifdiftion to be privative. Balfour fays fo, p. 629. 
 Melvil, p. 10, and n, &c. Lord Stair, p. 675. for in this 
 laft author, the word proper involves in it property ; it is ap- 
 plied and repeated to four different courts, all of which have 
 a property in their own jurisdictions, and are privative of all 
 other, quoad the objects which lord Stair affigns to them ; 
 but the aft 1681 puts the matter out of doubt, as will ap- 
 pear from the admiral's jurifdiftion; for there is no knowing 
 the law, without knowing the niftory of the law. It was 
 originally privative ; but as there was only one judge, with a 
 trifling influence for his trouble, and, he, often modeft and 
 diffident, he applied, in difficult cafes,, to the king and coun- 
 cil for afilftance j they ordered the court of jufticiary to af- 
 fift them, Mackenzie, p. 193. From thence the court of 
 jufticiary came to give him afliftance where it was not afked, 
 Balfour, p. 634. Melvil, p. 10. And thus the court of juf- 
 ticiary came, before the ad 168 1, to take upon them to pro- 
 ceed, though unwarrantably, as if they had been cumulative 
 with him. Mackenzie. 
 
 In the year 1681, the duke of York came to Scotland, to 
 take the adminiftration of it. He was the king's commif- 
 fioner to the parliament, and lord high admiral of Scotland. 
 Among many vices he had one virtue : he was fond of 
 naval affairs and of trade. The afts of the parliament 1681 
 fliow his attention to thefe objects ; and, among others, the 
 aft in queftion, for the difadvantages to trade of encroach- 
 ing upon the privative jurifdiftion of the admiral being obvi- 
 ous, this aft was a remedy for thofe encroachments, and 
 declared the original privative jurildi&ion of the admiral. 
 At that time the duke of York was in clofe connections 
 and correfpondence with Lewis XIV. and the aft in qireftion 
 was borrowed from an ordonance of that prince. The dates 
 fhow this, for the act is dated a month after the ordonance. 
 The preambles (how it, for the fubftance of both is the 
 fame, though there is more verbiage in the French preamble ; 
 and the enaftment is the fame, for they both declare the cri- 
 minal jurifdicYton of the admiral, and that that jurifdidlion 
 fhall be privative ; fo that the two acts muft have been con- 
 certed together. Moreover, the aft 1681 declares the ad- 
 miral's jurifdidtion to be fovereign, which draws this confe- 
 quence after it, that it muft be privative, for there is no fo- 
 vercignty without independance of the other four fovereign 
 courts in Scotland ; the feflion, jufticiary, exchequer, and 
 parliament, coniidered as a court are all pvivative. It de- 
 clares too the admiral tobejujliciary in the high fea< j but every 
 
 court
 
 [ 3 J 
 
 court of jufliciary is in its own nature privative. Thejuf- 
 ticiary of all Scotland in the hands of the Argyle family was 
 privative till bought off. The jufticiary which they retained 
 over Argylefhire after the fale, continued privative ; the High- 
 land jufticiaries were privative; the prefent court of jufticiary 
 is privative upon the land, and upon the fame plan of analogy j 
 thejufticiary of the admiral muft be privative in his bounds, 
 viz. the fea, the harbours, and the coafts. Such are the 
 heads or fubftance of the arguments and authorities, proving 
 that the admiral's jurifdition is privative and exclufive of 
 that of this court, at leaft in the firft inftance j but as the 
 queftion is of confiderable importance to the conftitution of 
 both courts, and to the people of this country, as well as 
 foreigners, it would be neceflary that the court fhould appoint 
 informations to be given in upon it, in order that the matter 
 might be treated as fully as it requires, and confidered with 
 due deliberation. 
 
 Mr. Dalrymple further reprefented, That having writtea 
 the foregoing reply without feeing the anfwer made on the 
 part of the profecutor, or having accefs to any of the writs 
 and manufcript authorities referred to by the profecutors 
 counfel in the debate, he will be forgiven if he has omitted 
 to anfwer any argument that may be there ftated ; and hopes 
 it will be marked in the record of court, that his reply was 
 drawn under thefe circumftances. 
 
 Mr. Hay Campbell anfwered, That both parties were in 
 the fame fituation, having made up their minutes from the 
 notes which they took of the pleadings, and there was na 
 eccafion for any infpection of each other's minutes. 
 
 Curia
 
 I 3' ] 
 
 Curia Jujliciaria S. D. N. Regis tenta in nova Seffjonis 
 Domo de Edinburgh >, 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 jurifdi<tion to try this indictment in the firft inftance, 
 and therefore declare, That they will proceed accordingly. 
 
 (Signed) THO. MILLER, J. P.D. 
 
 The indictment being again read over in open court, and the 
 pannel being interrogate, If he was guilty or not guilty, 
 he anfwered, That he was not guilty. 
 
 Mr. Robert Cullen, on the part of the pannel, and Mr. An- 
 drew Crofbie, on the part of the profecutor, being heard 
 at great length on the relevancy of the indictment, the 
 lord juftice-clerk, and lords commiffionejs of judiciary, 
 continue the diet at the inftance of Archibald Earl of Eg- 
 lintoun, and his Majefty's advocate, againft the faid Mungo 
 Campbell, pannel, and whole other diets of court till 
 to-morrow at twelve o'clock, in this place ; ordain parties, 
 witnefles, afllzers, and all concerned, then to attend, each 
 under the pains of law ; and ths pannel in the meantime 
 to be carried back to prifon. 
 
 Curia 
 6
 
 f 3* J 
 
 Curia Jufliciaria S. D. N. Regis tenta in nova Seffionis 
 Domo de Edinburgh^ vigejimo tertio die Decembris mil- 
 lejimo feptingentejimo & fexagefimo nono per honora- 
 biles vires Tbomam Miller de Bar/dimming^ dominum 
 jufticiarum clericum? Alexandrum Bo/well de Auchin- 
 leck, Henricum Home de Kaimes, Jacobum Fergufon de 
 Pitfour, Georgium Brown de Coalfton y & Robertum 
 Bruce de Kennet^ dominos commijjionarios jujliciari* 
 dift. S. D. N. Regis. 
 
 Curia kgitime affirmata. 
 
 INTRAN. MUNOO CAMPBELL, excife-officer, at 
 Saltcoacs in the county of Air, pre- 
 fent prifoner in the Tolbooth of Edin- 
 burgh, pannel, 
 
 Indi&ed and accufed as in the preceding Sederunt. 
 
 Parties procurators being further heard at great length 
 on the relevancy of the indictment, 
 
 The lord -juftice-clerk and lords-commiffioners of jufticiary, 
 ordain both parties to give in to the clerk of court, in- 
 formations upon the debate, in order to be recorded ; the 
 profecutors to give in theirs againft Wednefday the third 
 day of January next to come ; and the procurators for the 
 pannel to give in his againft Tuefday the i6th day of 
 the faid month ; continue the diet againft the pannel, and 
 whole other diets of court till Monday the twenty-fecond 
 day of the faid month of January ; and ordain parties, 
 witneffes, 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. 
 
 See tie above-mentioned INFORMATIONS, printed at 
 large, at the end of tbis Trial. 
 
 Curia
 
 Jiiftuiaria S. D. N. Regis tent a in nsva Seffwnit 
 D'mo de Edinburgh vigcfimo fecundo die Januarii mil- 
 lejlrno, feptingentefimo & ftytv age/into per Honorabiles 
 viros, Thomam Miller de Barjkimming dsminum jujii.ia* 
 ru>n 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<e ditf. 
 S. D. N. Regis. 
 
 Curia legitime Affirmata. 
 
 INT RAN. MUNGO CAMPBELL, officer of excife at 
 Saltcoats, in the county of Air, prc- 
 fent prifuner in the Tolbooth of Edin- 
 burgh, pannel, 
 
 Indicted and accufed as in the preceding Sederunr. 
 The Interlocutor of relevancy being read over, 
 
 The lord juftice-clerk, and lords commiffioners of jufticiary, 
 fine and amerciate Robert Sandilands cf Herdmonfhiels, 
 and Alexander Kincaid, Bookfeller in Edinburgh, each in 
 the fum of one hundred merles Scots, for not attending 
 this day and place, to have paft upon the affize of the faid 
 Mungo Campbell, as they were lawfully cited for that 
 effect, thrice called, and not compearing. 
 
 Mr. Maclaurine, for the pannel, reprefented, That the lift of 
 the perfons to pafs upon the aflize had been made up by the 
 clerk of court, who was in ufe to make up fuch lifts; but 
 that it would not be difputed, that before making up the faid 
 lift, the doer for the private profecutor had fuggefted to the 
 clerk, that he was defirous a number of landed gentlemen 
 (hould be upon faid lift. That the clerk made up the lift 
 accordingly, which was laid before, and approved of by the 
 judges ; but that it would not be difputed, that before the 
 judges, at leaft before it was figned by them, the faid lift had 
 been ihown to, and approved of, by the doer, for the private 
 profecutor, at whofe fuggeftions alterations had been made 
 Thereon. That he apprenended, in order to make a trial by 
 a jury fafe and fair, it is abfolutely neceflary that the profe- 
 cutor (hould have no concern in the nomination of the af- 
 fize, or be allowed to fuggeft any particular perfon, or any 
 
 F 2 parti-
 
 particular fet of men, however refpebble, to the clerk, a* 
 proper perfons to be put upon the lift ; becaufe, if that was 
 allowed, an advantage might be taken of pannels, as perfons 
 may be put upon the afiise, who, from certain circumttances 
 and luuatiops, may have prejudices again.ft the pannel ; and 
 that, therefore, when any fuch thing appeared, he appre- 
 hended, a lilt fo made up (hould be laid afide, and another 
 aiiize called ; and that in this cafe, as it was not difpuied, 
 and if difputed, couM be eafily and inftantly proved, that the 
 tjoer for the private prafecutor had fuggefted to the clerk, that 
 a number of landed gentlemen fhould be put upon the jury, 
 vhich was accordingly done, though not necefiary in this 
 cafe, as the pannel was not a landed man ; and that the lift 
 of the affize had been fhown to, and approven by the doer 
 for the private profecutor, he apprehended that a challenge 
 lav aainft the array, or the whole afiizers fummoned. 
 
 Whereupon Mr. George Muir, principal clerk of court, 
 lieing called upon by the court, and afked, Whether what 
 was set forth by Mr. Maclaurine was the truth ? He inform- 
 ed the court, that after he had made up a lift of afiizers in the 
 ufual manner, to be laid before the judges for their confide- 
 ration, he being then confined to the hou r e by indifpofition, 
 Mr. John Mackenzie, writer to the figuet, agent for the 
 profecurors, happened to call upon him ; and he having 
 {hewed him the lift for the jury he had made up, which then 
 confifted of more than forty five perfons, Mr. Mackenzie 
 oSferving the names of Sir William Cunningham, and Sir 
 Robert Myreton among the jurymen, told him, he thought 
 tliefe improper perfons to be in the lift of jurymen, on ac- 
 c urn of their near connexion with the Earl of Eglintoun 
 the private profecutor ; Sir William Cunningham bring ne- 
 phew to the Earl of Eglintoun, and Sir Robert Myreton 
 
 jather-in law to Sir William. Whereupon he ftruck out 
 
 the names of thefe two gentlemen : that this converfation 
 was merely accidental, and he does not think that he had 
 any other converfation with Mr. Mackenzie on the fubjedt, 
 previous to the lift being figned by the court > 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<?," meaning 
 the pannel ; and he is uncertain whether his lordfhip 
 ufed thefe words immediately before di (mounting, or 
 immediately after , but prefently after uttering thefe 
 words he calls to his fervant, " John, bring me my 
 " gun." That lord Eglintoun's coach was then up- 
 on the high-road, about three hundred ells diflant 
 from where his lordfhip then flood, and he knows 
 lord Eglintoun had a gun in the coach. That, after 
 giving the above order, lord Eglintoun advanced to- 
 wards the pannel fome fteps, leading his horfe in his 
 hand, and repeated times defired the pannel to de- 
 liver up his gun, which the pannel continued to re- 
 fufe. That my lord dropt the horfe's bridle from his 
 hand, and the deponent took hold of the horfe. That 
 his lordfhip flill continued to advance towards the 
 pannel, and the pannel retired fometimes backwards 
 and fometimes fideways, but always pointing his gun 
 towards lord Eglintoun in the manner above de- 
 fcribed, and about this time he heard the pannel fay, 
 '* I beg your pardon my lord" To which my lord 
 replied, " Well then, deliver me your gun ;" and to 
 which the pannel again anfwered, " I beg pardon, 
 ** my lord,, I will deliver my gun to no man j" and 
 
 -he
 
 t 40 I 
 
 he thought that the pannel ftremed to be in anger zt 
 this time , but as he was not acquainted with the mart 
 before, he can fay nothing further upon the appear- 
 ance of his anger. And further depones, That when 
 Campbell ufed the above words, and when my lord 
 was ftill advancing, he heard the pannel fay, " Keep 
 *' off my lord, or by God I will (hoot you." That af- 
 ter this there was fome words paft between my lord 
 and the pannel -, but as the deponent was then about 
 twenty yards behind my lord, holding his horfe, he 
 did not hear what paft betwixt them, excepting that 
 he heard fome mention of property, by both of them, 
 but could make no fenfe of it. That at this time 
 Alexander Bartleymore was come up, and he heard 
 him fay to the pannel " For God's fake, Mr. Campbell, 
 44 deliver up your gun to my lord ," but did not hear 
 what anfwer the pannel made ; and the deponent 
 about the fame time made the fame requeft to the 
 pannel to deliver up his gun to my lord, but either 
 he did not hear him or he made no anfwer. Depones, 
 That during all the time of the pannel's retreating 
 and pointing the gun, as above defcribed, he always 
 had his thumb upon the cock, at lead fo often as the 
 pannel was in fuch a fitnation as the deponent could 
 obferve ir, and always obferved the gun pointed to- 
 wards my lord, as above defcribed: and further de- 
 pones, That when the pannel was retiring and my 
 lord advancing, in the manner above defcribed, the 
 pannel fell backwards by a (tone upon which he {truck 
 his foot, by which the gun was raifed paft the per- 
 pendicular, and rather pointing backwaids from my 
 lord, the pannel being then lying upon his back : 
 upon which my lord itopt for a little, and then move d 
 his left foot as if intending to pals by Mr. Camp- 
 bell's feet , upon which the pannel raifed himfelf upon 
 his elbrw, pointed the gun at my lord Eglintoun, 
 and fired it into his body \ and that my lcr<J, at tbe 
 time he received the mot, was not above three or 
 four yards from the muzzle of the gun. That the 
 
 (ho:
 
 C 4' 1 
 
 (not entered his left fide, owing, as he apprehends* 
 to the pofture his lordfhip was in by the movement 
 he made as above-delcribed *D, pones, that my iofd 
 walked fome it-ps after receiving the mot towards the 
 fhore, with his hand upon the wound , and as he 
 puffed near to the deponent, he looked to him and 
 laid, he was gone That prefently after he faw the 
 pannel engaged with John Millikm, and endeavour- 
 ing to wreft out of his hands the gun which MiJliken 
 had brought from my lord's coach That he had 
 not observed this gun before that time -That, upon 
 obferving this ftruggle, he called to Bartleymore to 
 goto MillikerTs amitance, for, that that man would 
 fhoot more of them ; which Bartlt-ymore accordingly 
 did, and prevented the pannel's getting pofleffion of 
 the gun. That the fervants, and the deponent, after- 
 wards tied the pannel's hands, and before this time 
 the deceaft-d lord called out to his fervants, " Don't 
 *' ufe him ill." That the deponent defired the pan* 
 nel to go towards my lord, who was then lying upoa 
 the ground, with his fervants about him. That 
 Campbell accordingly walked up, and my lord look- 
 ing at him faid Ci I would not have (hot you, fuppofe 
 " you have fhotmr," anc ^ again repeated " I would 
 " not have (hot you." Depones, That at the time 
 that the pannel fell backwards the deponent thought 
 my lord might have taken the gun from him, becauie 
 he was fo near the pannel, and the pannel was foms 
 time before he recovered himfelf ; but- he heard no 
 body advife my lord to make ufe of that opportunity 
 of leizing the gun. Depones, That after aflifting 
 to carry lord Egiintoun to his coach, the deponent, 
 with one John Hamilton, who had joined them, after 
 my lord had got intc* the coach, conducted the pannel 
 as a prifoner to Saltcoats, That upon their way thi- 
 ther the deponent afked the pannel what fliot his gun 
 was charged with. To which the pannel anfwered 
 *' It did not fignify, as bt had got as much as would 
 " do for him If he were all the earls in Scotland." 
 G : But
 
 [ 42 J 
 
 But upon the deponent's faying that he might fatisfy 
 him fo far as to tell him what the gun was loaded 
 with, he laid it was loaded with fmall {hot. That the 
 deponent afterwards afked him if he was not forry for 
 what he had done ; anfwered " No, for 1 will yield 
 " my gun to no man, and would rather yield my life ;" 
 and thinks he added thefe words " That if it was to 
 " do he would do it again rather than part with his 
 *' gun ; for that he would rather part with his life 
 " than his gun ;" and he further added, " That if 
 " lord Eglintoun's gun had not been wrong he would 
 
 O D D 
 
 " probably have (hot another." And being interro- 
 gate for the pannel, depones, That when my lord 
 was advancing upon the pannel, he frequently ob- 
 ferved his lordlhip turning from the one fide to the 
 other, in order, as he underftood, to avoid the direc- 
 tion of the pannei's gun, and he as often obferved 
 the pannel change the dire&ion of the gun fo as to 
 keep it pointed at the earl : and being defined to ex- 
 plain further in what manner the gun was pointed to- 
 wards the earl, he again defcribed it before the jury 
 as railing the butt-end of the gun a little above his 
 haunch, and the muzzle of the gun a little upwards, 
 pointing towards the earl. And further depones, 
 That when the pannel fell backwards over the ftone, 
 he faw his heels rife from the ground by the violence 
 of the fall ; and depones, that after the earl frrit ac- 
 'cofted the pannel, the pannel retired, as he thinks, 
 about forty yards ftraight backwards. But that it 
 would have been more by his retiring fomeumes fide- 
 ways Depones, that when the earl received the mot, 
 the deppnent was above twenty yards from him, hold- 
 ing the horfe, which the earl had rode, he himfeif being 
 mounted on his own horfe. Depones, that he did 
 not fee the pannel rife from the- ground after the earl 
 received the (hot, but afterwards he faw the pannei's 
 gun lying upon the ground near the place where he 
 had fallen. That he law no itrokes given by any 
 perfon to the pannel, except one by John Milliken, 
 
 and
 
 f 43 J 
 
 and at that time he apprehended .that the pannel had 
 wrefted, or nearly wrefted, the earl's gun out of Mil- 
 liken's hands, which he could not exactly obferve, as 
 Mtlliken was betwixt him and the pannel ; but con- 
 jectured it to be fo from Millken's giving the above 
 blow : and depones, That, being at the diftance 
 abovementioned, he neither obferved the pannel cock 
 the gun, or draw the trigger. And being interrogate 
 by one of the jury, whether he heard lord Eglintoun 
 call the pannel a fcoundrel, rafcal, or give him any 
 bad names, or curfe or damn him, from the time that 
 my lord firft accofted him ? depones, That he did 
 not. Depones, That lome time after my lord had 
 accofted the pannel, and demanded the pannel's gun; 
 and he had refufed to deliver it, my lord fcemed to 
 be in a pafiion. Depones, That when the pannel was 
 carried to Saltcoats his hands were tied behind his 
 back, and he obferved a little blood upon his brow, 
 but he obferved no wound. Caufa fcientia patet. And 
 this is truth as he ihall anfwer to God And further 
 depones, that he did not obferve when the gun was 
 brought from lord Eglintoun's coach ; that after his 
 lordfhip received the ihot he kept his eye clofe up- 
 on him, and did not obferve laid gun till he faw 
 Milliken and the pannel ftruggling about the gun, 
 as above defcribed ; and that Milliken that time was 
 about twelve yards diftant, as he thinks, from the 
 place where the earl received the (hot : and this is 
 alio truth as he fhall anfwcr to God. 
 
 (Signed) ANDREW WILSON. 
 
 THO. MILLER. 
 
 JOHN
 
 [ 44 I 
 
 JOHNHAZLE, latefervantto the deceafe'd Alex- 
 ander earl of Eglintoun, aged about twenty-two years, 
 manied, who being folcmnly fworn, purged of malice 
 and partial counfe), and interrogate, depones, That he 
 was lervant to the deceafed earl of Eglintoun in the end 
 of October 1 aft, and attended Kirn when his lordftiip 
 fet out from his own houfe in his coach, with an in- 
 tention to go to Southennan. That having come to. 
 Parkhoufe the earl came: out of his coach, and went 
 into his ftabks to look at his horfes, and then went 
 back to his coach, and proceeded to goon in the a- 
 bove ,road : and being about a quarter of a mile from 
 Parkhoufe, fome of his fervants informed him, That 
 they faw two men upon his lordfhip's grounds, and 
 one of them had a gun. After which another .fervant, 
 as* the deponent thinks Alexander Bartleymore, faid 
 to my lord, that one of them was that Campbell, mean- 
 ing the pannel. -*- After which my lord came out of his 
 coach, and mounted the horfe which the. deponent was 
 leading, and rode towards the two men ; and Andrew 
 Wilfon followed him, arid the deponent a littl- be~ 
 hind. V/hen my lord came up to the pannel, he 
 afked him to give up his gun, which the pannel re 
 fared. At leaft thefe were the fir ft words the depo- 
 nent heard pafs betwixt them'; though, as my lord was 
 with the pannel fome little time before, other words 
 might have paft which the deponent did not hear. * 
 That my lord having ilept forward to lay hold cf the 
 gun, the pannel ftept back, holding the gun in his 
 hand pointed towards my lord's body, and faid, if he 
 did/not ftand off he would (boon him.- -That he did 
 not obferve whether the gun was cocked or not, but 
 he obferved the.pannel's finger upon the trigger.--^ 
 That the earl faid, if he had his gun there he be- 
 lieved he could {hoot as well as the pannel, and then 
 lent the deponent for the gun ; and the deponent went 
 a:id took the gun out of the coach, and delivered it 
 to Juhn Milliken,' and bid him ride as fail as he 
 could with it to my lord j and the deponent followed 
 
 him
 
 [ 45 ] 
 
 him on horfeback. And when he was come up, he 
 obfcrved the pannel retiring backwards with his gun 
 in his hand, and his finger on the trigger, and the 
 muzzle pointed to the earl , and the pannel, having 
 kicked his heel againft a fton?, fell backwards, and 
 the gun flew up and his heels flew up. That the earl 
 upon that did not advance, but ftood ftill and fmiled -, 
 after which the pannel raited himfelf, leaned upon his 
 right elbow, and then levelled his gun at my lord's 
 body, and then ftopt fome time : and my lord was pro- 
 ceeding to go round the pannel's feet towards his 
 head, as he thinks, and was about a yard and a half, 
 or twa'-yards, from the muzzle of the gun ; and he 
 faw the pannel point the gun at my lord, and law the 
 gun fired into my lord's body ; but did not obferve 
 whether the pannel's finger was upon the trigger or 
 nor. After which my lord faid, that he was gone, 
 and moved a little way from the place and laid him- 
 felf down upon the ground. That after this the pan- 
 nel rofc up, and went to John Milliken, and took my 
 lord's gun from him, and pointed it at the deponent 
 to moot him, and then pointed it to John Miiliken. 
 And the dep ;nent knows that the earl's gun was not 
 charged at the time, but it was primed by Milliken 
 after he took it out of the coach. That Alexander 
 Bartleymore and Andrew Wilibn came to John Milli- 
 ken's affiftance, and threw down the pannel to the 
 ground, and took the earl's gun from him ; and John 
 Milliken gave him two or three (Irokes ; and he heard 
 ths earl cry out, that they fhould not hurt the pannel, 
 but fecure him, and let the law take place. After 
 which John Milliken was difpatched to Saltcoats for 
 a doctor, and Bartleymore and Wilfon tied the pan- 
 nel's han;is behind his back with a garter, and brought 
 him to the place where the ea r l was ; and he heard 
 his lordfhip fay to the pan,nel, " Campbell, you have 
 " ihot me, which I would not have done to you." 
 To which the pannel made no anfvver. That the earl 
 had no arms, nor ftaff, nor whip, nor any thing elle 
 
 i in
 
 I 46 ] 
 
 in his hands, from the time he firfl came up to the 
 pannel, 'till he received the fliot. And that he did 
 jiot grapple with the pannel, orufe any harfh expref- 
 fions to him. That the earl upon this went into the 
 carriage, and the deponent went to Irvine for a doc- 
 tor, and heard no more of what paft. And being 
 interrogate for the pannel, depones, That the depo- 
 nent was fitting on horfe behind my lord about fifteen 
 yards or fo when the gun was fired. And being in- 
 terrogate how heobferved my lord fmiling at Campbell's 
 fall, depones, That my lord turned about towards 
 the deponent, and he faw him fmile. And being 
 further interrogate, When he faw Milliken prime the 
 gun, depones, that it was after he carried it down to 
 the fands. And being further interrogate, Whether 
 any powder and (hot was brought by the deponent 
 out of the coach ? depones negative. But he does 
 not know whether MiJliken had any (hot with him. 
 And that Milliken was about twenty or thirty yards 
 from the earl when he primed the gun. And being 
 further interrogate for the pannel, depones, That the 
 earl's gun was brought within twenty or thirty yards 
 of his lordihip when the pannel fell : and that it was 
 about the fame diftance when the pannel's gun was 
 fired. And depones, That he is now fervant to 
 Archibald earl of Eglintoun, but is foonto leave him. 
 Caufa fcienti* patet. And this is truth, as he fhall an- 
 fwer to God. And depones he cannot write. 
 
 (Signed) JAMES FERGUSON. 
 
 JOHN MILLIKEN, late fervant to the faid 
 deceafed Alexander earl of Eglintoun, now refiding 
 at EgHntoon, aged forty years, unmarried, fo- 
 lemnly fworn, purged of malice and partial counfel, 
 and interrogate, depones, That a fervant of the late 
 lord Eglintoun's, named John Hazle, came riding 
 back from the earl at the time and place mentioned 
 in the indictment, and defired the deponent to carry 
 
 my
 
 t 47 3 
 
 my lord Eglintoun's gun to him, which happened to 
 be in the coach : that the deponent did accordingly ; 
 but before he had time to charge the gun, which he 
 knew was not charged, he heard and faw the (hoc 
 from the pannel's gun, by which his mafter was kill- 
 ed. That he knows my lord's gun was not charg- 
 ed, becaufe it was his the deponent's bufmefs to look 
 after my lord's arms, and to carry the ammunition. 
 Depones, That when he came near the earl as afore- 
 faid, he heard the pannel fay, That by God he would 
 (hoot the earl, if he were the beft earl in the nation ; 
 and adds, That he heard no words from the earl at 
 that time. Depones, That when the earl was (hot, 
 he, the deponent, was at the diftance of twenty yards 
 from him. Depones, that he went up to my lord 
 after he was (hot, and my lord faid, " 1 am done 
 " for." That next he attacked the pannel, ftruck 
 him, and threw him down. That the pannel at- 
 tempted to wreft the gun out of his hands, and did 
 not fucceed, though he was very near it. The earl at 
 the fame time called to the deponent to let the pannel 
 alone. Depones, That Alexander Bartleymore affifted 
 him in the ftruggle with the pannel. And that the 
 deponent was foon thereafter fent for a furgeon to his 
 mafter : but before he went he left his matter's gun 
 lying upon the ground. That when he returned with 
 the furgeon, he faw the pannel with his hands tied 
 behind his back ; and that they were not fo tied when 
 he went for the furgeon. And upon an interrogatory 
 in behalf of the pannel, depones, That he was about 
 to charge my lord's gun, when the (hot from Camp- 
 bell's gun went off. Caufa fcientite pafet. And this is 
 the truth, as he (hall anfwer to God. 
 
 (Signed) JOHN MILLIKEN. 
 HENRY HOME. 
 
 ALEX-
 
 t 42 } 
 
 ALEXANDER BARTLEYMORE, in Park- 
 houfe of ArdroiTan, aged thirty-fix years, married, 
 folemnly fworn, purged of malice and'partial counfel, 
 and interrogate, depones, That upon the twenty- 
 . fourth day of Oclober lafl the deponent was attend- 
 .ing the late earl of Eglincoun ; and having patted a 
 place called Parkhoufe at about a quarter of a mile 
 diftance therefrom, a man was obferved in the fields 
 with a gun, attended by another without a gun, both 
 of them being upon my lord's grounds. That my 
 lord having enquired who it was that was carrying 
 the gun, the deponent told him that it was the pannel. 
 That upon this my lord, along with Andrew Wilfon 
 and John Hazle, went towards thefe men , my lord 
 having come out of his coach, and got oa horfeback 
 for that porpofe. That the deponent ftaid by the 
 coach forfome time, but thereafter came up to where 
 my lord was, and obferved the pannel preienting his 
 gun at my lord j and the deponent begg'd the pannel, 
 for God's fake, to give his gun to my lord Eglintoun ; 
 but the pannel faid he would not, for he had a right 
 to carry a gun. That the earl faid to him, That he 
 might have a right to carry a gun, but not upon his 
 lands, without his liberty. That the pannel upon 
 this faid to the earl, I beg your lordfhip's pardon : 
 or, I beg your pardon. That at this time lord Eg- 
 lintoun was difmounted from his horfe, and advancing 
 nearer the pannel, who again was retiring fometimes 
 backwards, at other times tideways, having his muf- 
 ket dill pointed at the earl. But the deponent did 
 not obferve whether he had his hand upon the cock or 
 not ; neither drd the deponent hear any threatnings 
 uled by the pannel againft the earl. Depones, whein 
 the pannel was retreating, he fell clofe by where 
 the deponent was fitting on his horfe, and by his fall 
 frightened the deponent's horfe, fo that the horfe 
 reeled a little; during which time the deponent did 
 not obferve the pannel, but immediately thereafter, 
 having got -his horfe fettled, he faw the pannel half 
 
 fitting
 
 [ 49 3 
 
 fitting half lying, and faw him point his gun towards 
 ^rd Eglintoun, and immediately fire it. -That at 
 this time lord Eglintoun was within two or three yards 
 of the pannel. That upon this lord Eglintoun gave 
 three or four loud cries, that he was gone. Depones, 
 that the pannel fired his gun without putting it to his 
 fhoulder, but raifed the butt above his haunch, and 
 pointed it at the earl. Depones, that he having gone 
 up to give what affiftance he could to the earl, he 
 heard fomebody cry, that the pannel would fhoot 
 more people. Upon this the earl defired the depo- 
 nent to go and take care of the man, for he had {hoc 
 him already. Tnat the deponent upon this left the 
 earl, and faw the pannel and John Milliken, one of 
 the late earl's fervants, drugging about a gun ; \v here- 
 upon the -deponent ran up, and found the pannel had 
 wrefted the gun from Milliken. Upon which the de- 
 ponent laid hold of the pannel, threw him down, and 
 took the gun from him. That after this John Milli- 
 ken continued with the pannel, and kept him on the 
 ground -, and thereafter the deponent affifted in tying 
 the pannei's hands behind his back. Depones, That 
 at this time the deponent faid to the pannel, " Is ic 
 tc not a fad thing you would not deliver your gun 
 " to lord Eglintoun, but have (hot him ?" To which 
 
 O 
 
 the pannel anfwered, " If 1 have (hot him, let. me 
 *' be hanged for it." Depones, That at the time the 
 pannel firecl at the earl, his IcrdQvp had no arms, 
 .neither ftafFnor whip ; and the deponent did not lee 
 him grapple with the pannel, or hear him ufeany harfh 
 exprefllons to him. -And being interrogare upon the 
 part of the panntl, depones, That when he prft law 
 the pannel as above-mentioned, he was among fome 
 whins on lord Eglintoun's eftate, at a confiderabie dif- 
 tance from th? lands of Montfodd. Caufa fcitntia 
 fatet. And this is truth, as he (hall anfwer to Gcd. 
 And being further interrogate upon the part of the 
 pannel, depones, That when the earl received the 
 fhor, John Miiliken was within twenty 01 thirty yards 
 H of
 
 C 50 ] 
 
 of his lordmip, as the deponent thinks ; and that the 
 deponent did not obferve John Hazle at that time. 
 Depones, That Milliken and Hazle were fervants to 
 the late earl of Eglintoun, and are fervants to the 
 prefent earl, as the deponent is alib. And this is 
 alfo truth. 
 
 (Signed) ALEXANDER BARTLEYMORE. 
 ALEXANDER BOS WELL. 
 
 JOHN BROWJST, tide-officer at Saltcoats, aged 
 forty and upwards, folemnly iworn, purged of malice 
 and partial counfd, and interrogate, depones, That 
 upon the twenty-fourth of October laft, the deponent 
 was defired by the pannel to take a walk with him. 
 Thac the pannd had a gun, and they paffed through 
 the grounds of Montfodd, and thereafter eroded a 
 burn, which is the march between Montfodd and the 
 earl of Eglintoun's property, and went through lord 
 Eglintoun's ground towards the fea. That when they 
 ^ere coming along they met with one Mr. Boyes, 
 an excifeman, who laid to them, It feemed they did 
 not mind going through inclofures ; though at the 
 fame time the deponent and the pannel had not gone 
 over any dykes, but followed an old kirk-road, there 
 being ftyles over the dykes to fuffer people to pals. 
 Depones, That when they were upon lord Eglintoun's 
 property as aforefaid, they faw a coach not far from 
 Parkhoufe, and 'Coon thereafter the earl of Eglintoun 
 came up to them. That when the earl came, he faid 
 to the pannel, " Mr. Campbell, why do you carry a 
 " gun upon my grounds, when I took you in a tref- 
 " pals before ?" And immediately alighted from 
 his horfe, and called to the pannel to deliver him his 
 gun. That the pannel upon this faid he was doing 
 his lorcflvp no harm, and bid his iordfliip keep oft, 
 pointing his gun at my lord. That the deponent up- 
 on this went off, and can give no further account of 
 
 what""*
 
 [ 5" ] 
 
 what paffed. But being interrogate, fpecially if, while 
 he was prefent, lord Eglintoun uied any threatenings 
 or bad language to the pannel ? depones, he did nor. 
 And being interrogate upon the part of the pannel, 
 depones, That he thinks he heard lord Eglintoun de- 
 fire one of his fervants to bring his lordfhip's gun. 
 Depones, That after he had gone off a conficlerable 
 diftance, he heard the report of a gun. That imme- 
 diately after this he looked back, and, as he thinks, he 
 faw the pannel lying on the groun J on his hands, hav- 
 ing known him fro'm his cloaths and his white night- 
 cap. Depones, That the pannel had no dog with him,-* 
 and (hot none upon lord Eglintoun's property that day ; 
 neither did he upon any other ground ; neither did he 
 fee Mr. Campbell beating bumcs for garne. Caufa 
 fcientix patet. And this is truth, as he mall anfwer to 
 God. 
 
 (Signed) JOHN BROWN. 
 
 ALEXANDER BOSWELL. 
 
 JOHN MOORE, furgeon in Glafgow, aged forty 
 years, married, folemnly fworn, purged of malice and 
 partial couniel, and interrogate, depones,' That the 
 deponent was called upon to fee my lord Eglincoun ac 
 his own houfe that day on which he received his mor- 
 tal wound, in October laft. That he came there be^ 
 twixt eight and nine at night. That when the depo- 
 nent entered the room where lordEgl:ntoun was lying 
 in bed, his lordihip faid, I am glad to fee you, buc 
 you can be of no ufe to me now, for it is all over, 
 That the deponent replied, that he hoped it would not 
 be fo bad, and wifaed to fee the wound. That he 
 examined the wound a little time after, and was immer- 
 diately convinced that it was mortal. That after this 
 lord Eglintoun defired the deponent to come towards 
 his bed-fide and fit down, and faid, I did not dclerve 
 this. I gave no provocation to occafion or deferve it. 
 That upon this his lordfaip gave the following detail 
 
 H 2 Of
 
 of the affair : That he had been going that morning in 
 his coach to Ardroflan, and was informed by one of his 
 fervants that a man was mooting in fome of his parks. 
 Upon which he came out of his 'coach and mounted 
 a led horfe, and coming up to the man who had a gun, 
 he told him, he did not take it well of any perfon to 
 kill his game without afking his liberty, and defired 
 the man to deliver up bis gun, which he refufed to do ; 
 and' his lordfhip infifting upon it, the man prefented 
 ths piece, and threatened to moot him if he perfifted. 
 That his lordfhip faid, that he alfo could fhoot very 
 f well, if he was for that : and turning to one of the 
 fervancs, he defired him to go to the coach and bring 
 his lordfnip's gun, which was there. ^-That while this 
 fervant was away his lordmip continued to expoftulate 
 with the man, and infilled on his delivering up his 
 piece ; while the man continued retiring, with his face 
 to my lord, he fell backward over fome ftoncs, and 
 immediately recovering he {hot his lordfhip. That 
 the deponent here interrupted his lordfhip, and faid, 
 probably the gun went off by accident when the man 
 fell ? At which his lordmip replied, making his head, 
 *' No, he fired intentionally;" or words to that pur-: 
 pofe. That at this time the earl was entirely compofed, 
 and as fenfible as ever the deponent had feen him. 
 That he talked diftinftly, and did not utter any thing 
 that fhowed rancouror reientment againft the pannel; 
 and that he was perfectly convinced that he would 
 foon die of the wound, and was perfectly refigned to 
 his fare. That he died that night a little after twelve 
 o'clock. Depones, That next day he opened the body, 
 and found the bowels very much torn from the left 
 fide, where the wound was, ail the way to the right, 
 i That he found many fin all {hot within the belly, 
 fome of them lodged in the liver. -r-That the circular 
 wound in the fkin was about three inches below the 
 navel upon the left fide, and the wounded bowels 
 could be; traced obliquely upwards from the external 
 Vifound to the liver.- -That there was a large quantity
 
 C 53 ] 
 
 of extr^vafated blood in the belly. That the deponent 
 was very well acquainted with lord Eglintoun before, 
 and that he is pofitive that lord Eglintoun died of that 
 wound. Caufa fcienti* patet. And this is the truth, 
 as he (hall aniwer to God. 
 
 (Signed) JOHN MOORE. 
 
 JAMES FERGUSON. 
 
 Dr. JOHN GUMMING, phyfician in Irvine, aged 
 fifty and upwards, unmarried, purged of malice and 
 partial counfcl, folemnly fworn and interrogate, de- 
 pones, That upon the twenty-fourth day of October 
 laft, he was fent for to vifit the decealed Alexander 
 earl of Eglintoun, at his houfe of Eglintoun, on ao 
 count of a wound which he had that day received. 
 That when he come to his lordfliip, he found him in 
 great pain ; and he faid to the deponent, that he had 
 been murdered by Mungo Campbell, the pannel, in 
 cold blood ; for that he had given him no provoca- 
 tion, not having faid an uncivil word to him, and hav- 
 ing nothing in his hand to hurt him, not even a 
 fwitch.* ?That at this time lord Eglintoun appeared 
 to be altogether fenfible and compofed. Depones 
 conform to the preceding witnefs, with refpect to 
 the nature of the wound ; and that it was the ocr 
 cafion of lord Eglintoun's death ; and that he was 
 prefent next day when lord Eglintoun's body was 
 opened. Caufa frientix yatet* And this is truth, as 
 he fhall anfwer to God. 
 
 (Signed) JOHN GUMMING. 
 
 ROBERT 3RUCE. 
 
 GEORGE HUTCHINSON, lieutenant and ad- 
 jutant of the fourth regiment of foot, aged twenty- 
 nine years, unmarried, folemnly fworn, purged of 
 malice and partial counfel, and interrogate, depones, 
 That about the beginning of October Jaft, the depo-, 
 
 nent
 
 C 54 ] 
 
 nent happened to be in company with Mungo Camp- 
 bell, the pannel, in a houfe of the town of Saltcoats, 
 when the converfation turning on the fubjeft of fport, 
 the pannel faid that lord Eglintoun had challenged 
 him for (hooting on his grounds; and thinks he laid 
 that his lordfhip had done fo oftener than once, and, 
 fo far as he can remember, thinks it was twice ; and 
 that his lordihip had threatened to take his gun from 
 him, but had not perfifted in demanding it ; and thac 
 if he had, the pannel did not know what the confe- 
 quence might have been ; perhaps he might have 
 fired it, or words to that effect ; and added, that he 
 would allow it was a trefpafs to fhoot without leave, 
 for which he might be profecuted ; but he knew no 
 right lord Eglintoun had to take his gun on that ac- 
 count : that as an officer of excife he looked upon 
 himfelf as entitled to carry arms in the profecution of 
 his duty. Lieutenant Jofeph Knight was in company 
 with the deponent and Mr, Campbell at this time, 
 Caufa fcientitf patet. And this is truth as he (hall an- 
 fwer to God. 
 
 (Signed) G. HUTCHINSON. 
 ROBERT BRUCE. 
 
 JOSEPH KNIGHT, lieutenant in the faid fourth 
 regiment of foot, aged twenty-nine, unmarried, purged 
 of malice and partial counftl, and folemnty (worn and 
 interrogate, depones, That upon the third day of Oc- 
 tober laft, the deponent and lieutenant Hucchinfon, 
 the preceding witness, happened to be in company 
 with Mungo Campbell, the pannel, in the town of 
 Saltcoats ; and the converfation happening to turn 
 upon fport, and fome of them having afked if there 
 was good game in that neighbourhood, the pannel 
 anfwered that there was, for that molt of the grounds 
 <ibout the town belonged. to lord Eglintoun, and he 
 was ftrict in preferving the game. That the pannel 
 alfo faid, he had been feverely challenged by lord 
 Eglintoun for {hooting a hare -, and that his lordlhip 
 i had
 
 [ 55 1 
 
 had on that occafton either threatened or attempted to 
 take his gun from him, but did not perfift in it j and 
 that the pannel had then faid to lord Eglintoun, that 
 he would rather die as part with his gun. That Mr. 
 Campbell further faid, and fwore to it, that if lord 
 Eglintoun had perfifted to take his gun from him, he 
 would have {hot him; for that he was an old man, 
 and his life was not much worth, or words to that 
 purpole. Caufa fcientL-e -patet. And this is truth as he 
 (hall anfwer to God. And further depones, That on 
 the above occafion the pannel faid, that as he was an 
 excife-officer, he had a right to carry arms, and would 
 moot any perfon who would attempt to take them 
 from him. That the deponent does not exactly re- 
 member whether the pannel only faid this to him and 
 lieutenant Hutchinfon, or if he told them that he had 
 faid fo to lord Eglintoun, when demanding the gun as 
 aforefaid. And this is alfo truth. 
 
 (Signed) J. KNIGHT. 
 
 ROBERT BRUCE- 
 JOHN HAMILTON, mafon, in New-houfe, in 
 theparimof Ardroflan, aged fifty- three years, married, 
 purged of malice, and partial counfel, fworn and inter- 
 rogate, depones, That upon the twenty-fourth of Oc- 
 tober laft, immediately after the late Earl of Eglin- 
 toun had received the wound of which he died, the 
 deponent came down to the fhore where it happened, 
 and affifted Andrew Wilfon, a preceding witntfs, in 
 conducting the pannel to Sakcoats. That when thty 
 were upon the road, the deponent afked the pannel 
 how that unlucky accident nad happened ; to which 
 he anfwered, that lord Eglintoun had come to him 
 and demanded the gun, which he had refufed : thac 
 his lordfhip having advanced up to him, had infifred 
 for delivery of the gun ; upon which he had re-treated, 
 and making his retreat, had fallen on the ground. 
 That before this, lord Eglintoun had lent a fcrvant of 
 
 his
 
 f 36 ] 
 
 his for his gun and he thought his life was as gocrd 
 as lord Eglinroun's, and he fhorhim before the gun 
 came. That the deponent having faid to the pannel, 
 that he hoped he was miftaken, and that poffibly he 
 might be but flightly wounded ; to which the pannel 
 replied, that he had received the (hot when he was 
 within three yards of him, and that he could not live 
 if he was all the lords of Scotland or of Britain : that 
 thereafter the deponent faid to the pannel, If you could 
 obtain words of lord Eglintoun, as you fay that he is a 
 dying man, perhaps in cool blood he might forgive you, 
 which would be a great honour to you. To which 
 the pannel anfwered, that it would avail him nothing, 
 orftand him in no {lead. And further depones, that 
 he thinks that the pannel told him, that he had fallen 
 to the ground before lord Eglintoun fent for his gun. 
 Caufa fcientitf patet. And this is truth as he mail an- 
 iwcr to God. 
 
 (Signed) JOHN HAMILTON. 
 GEO. BROWN. 
 
 SAMUEL MITCHEL, fhoemaker, in Saltcoats, 
 aged fifty and upwards, married, purged of malice 
 and partial counfel, folemnly fworn and interrogate, 
 depones, That upon the twenty-fourth of October 
 lali, Andrew Wilfon, a preceding witnefs, brought 
 the pannel to the deponent, at the deponent's houfe 
 in Saltcoats, John Hamilton and another perfon be- 
 ing along with him : and that the pannel had then 
 his hands tied behind his back. That Andrew Wil- 
 fon faid he had orders to deliver him to the depo- 
 nent, that he might carry him prifoner to the town 
 of Irvine, for the crime of (hooting lord Eglintoun. 
 That the deponent having alked Andrew Wilfon 
 how that had happened, the laid Andrew Wilfon faid 
 he was afraid lord Eglintoun was gone, and immedi- 
 ately thereafter the pannel faid, " By God it is fact, 
 " I have mot lord Eglintoun, and he is gone if he 
 " was all the lords in Scotland." That the depo- 
 
 ncnc
 
 C 57 ] 
 
 nent convened a party accordingly, and carried the 
 pannel prifoner to Irvine. That when they were upon 
 the road to Irvine, the deponent faid to the pannel, 
 " that as lord Eglintoun was a young healthy man, 
 " there was reafon to hope that he might recover." 
 To which the pannel anfwered, " that it was im- 
 *' poffible that he had received the whole (hot into 
 *' his body, and that he was gone if he was all the 
 *' lords in Europe." Depones, That the deponenc 
 having faid it was. pity fuch an unlucky accident (hould 
 have happened to fuch a nobleman, the pannel an- 
 fwered, " There is no help for it now j it is only an 
 c .old gauger dying two or three years fooner tor a 
 " lord." Caufa fcientite fatct. And this is truth, 
 as he iliall aniwer to God. 
 
 (Signed) SAMUEL MITCHELL. 
 
 GEO. BROWN. 
 
 CHARLES HAMILTON, of Craighlaw, pro- 
 voft of Irvine, aged fixty years, unmarried, purged 
 of malice and partial counfel, folemnly fworn, and 
 interrogate, depones, That upon the twenty-fourth 
 of October laft, Mungo Campbell, the pannel, was 
 brought to Irvine, and prefented to the deponent as 
 chief magiftrate of that burgh, in order to be com- 
 mitted to prilbn, for fhooting the late Earl of Eg- 
 lintoun. That the deponent, in profecution of his 
 duty, took the examination of the pannel touching 
 the circumftances of that affair, which he committed 
 to writing ; and which declaration was wrote, at his 
 direction, by James Cunningham, and was fubfcribed 
 by the pannel and the deponent. And being now 
 Ihown to him, he depones it is the fame declaration 
 which was made by the pannel, taken down in writ- 
 ing, and fubfcribed by the pannel and him as above- 
 mentioned. That it was emitted by the pannel vo- 
 luntarily and freely ; and after being read over to the 
 
 I pannel,
 
 [ 58 ] 
 
 pannel, was fubfcribed by him and the deponent. And 
 the laid declaration is now marked by the deponent 
 and lord juftice-clerk, by their fubfcribing the fame. 
 And further adds, That after the declaration was 
 read over to the pannel, holding up both his hands, he 
 faid, That it was the truth, as he'fhould anlwer to 
 God. Caufa fdenti<g -patet. And this is truth as he 
 {hall anfwer to God. 
 
 (Signed) CHAR. HAMILTON. 
 
 THO. MILLER. 
 
 Mr. WILLIAM DUFF, advocate, fheriff-depwe 
 6f Air-(hire, aged years, married, purged 
 
 of malice and partial counfel, fworn, and interrogate, 
 depones, That upon the twenty-feventh of October 
 Jaft, the pannel being then committed prifoner to 
 the Tolbooth of Air, for the murder of the late earl 
 of Eglintoun, the deponent, in the courfe of his duty, 
 took the pannel's examination touching the circum- 
 ftances of that cafe, and committed the fame to writ- 
 ing, which was dictated by him, as exprefled by 
 the pannel, and was written by John Murdoch, the 
 flierifF-clerk- depute. That what was therein taken 
 down was emitted by the pannel freely and volun- 
 tarily ; and being read over to the pannel, was fub- 
 fcribed by him. That at the fame time another de- 
 claration, which the pannel had emitted before Charles 
 Hamilton, provoft of Irvine, was read over to the pan- 
 nel , and he acknowledged that it was the declara- 
 tion which he had emitted before the faid Charles Ha- 
 milton : and both thefe declarations being now fiiown 
 to the deponent, depones, that they are the fame with 
 thofe above deponed to, fubfcribed by the pannel, by 
 provoft Hamilton and the depute, as above deponed 
 to. And the deponent has now fubfcribed both thefe 
 declarations as herein referred to. And the decla- 
 ration firll above-mentioned, bearing date the twenty- 
 feventh of October, is alfo fubfcribed by iordjuftice- 
 2 clerk,
 
 [ 59 1 
 
 clerk, the other declaration of the twenty-fourth of 
 
 October being already figned by him. Caufa fcienti* 
 fetet. And this is truth, as he (hall anfwer to God. 
 
 (Signed) WILLIAM DUFF. 
 
 THO. MILLER. 
 
 JOHN MURDOCH, fherirT-clerk- depute of Air, 
 aged tventy-nine years, married, purged of malice 
 and partial counfel, folemnly fworn, and interrogate, 
 depones, That he was prefent with Mr. Duff upon 
 the twt-nty-feventh of October laft, when the pan- 
 nel emitted a delaration touching the murder of lord 
 Kglintoun. That he wrote the faid declaration, which 
 was dictated by Mr. Duff; and concurs with Mr. 
 Duff, in proving that declaration, and likeways the 
 former declaration, which had been emitted by the 
 pannel before Charles Hamilton, provoft of Irvine : 
 and both declarations being now mown him, depones 
 that they are the fame with thofe above deponed to. 
 And both declarations are now fubfcribed by the de- 
 ponent as herein referred to. Caufa fcienti* patet, 
 And this is the truth as he fhall anfwer to God. 
 
 (Signed) JOHN MURDOCH, 
 
 THO. MILLER. 
 
 The two declarations mentioned in the aforefaid depoiition 
 were read over in the prefence of the court and jury : and 
 of which the tenors follow : 
 
 FIRST DECLARATION. 
 
 Irvine, 24th Oct. 1769. 
 
 I\ T prefence of Charles Hamilton, Efq. ,of Craigh- 
 law, provoft of the burgh of Irvine, one of his Ma- 
 jefty's juftices of the peace for the fhire of Air, 
 compeared Mungo Campbell, officer of excife at 
 Saltcoats, who being examined, declaims, That this 
 
 I 2 day
 
 r e ] 
 
 day in the forenoon, or about mid-day, he was walk- 
 ing upon the (bore betwixt Ardrofian Park-dyke and 
 Montfodd-burn, with his gun in his hand. ThatlordEg- 
 linfoun came riding up to him, and difmounted, and 
 afked the declarant to deliver up his gun ; which he re- 
 fuied to deliver, and bagging my lord pardon if he 
 had done him an injury. That my lord again and 
 again required the gun, and he refuied * in the mean 
 lime retiring from my lord's taking the gun from 
 him, and telling his lordlhip that he had no right to 
 take the gun from him, nor would he give it -, but if 
 he had done any wrong, the law was open, and he 
 was willing to anfwer to the law for it. That upon 
 this my lord called to his fervant to bring him a gun, 
 for he coj.!d fhoot as well as the declarant : while 
 the fervant was bringing up the gun, the declarant 
 continuing to retire, and having his gun cocked, 
 and his hand at the trigger, he fell back, by a ftone 
 which he imagined took his foot ; and thereupon he 
 Ihot lord Eglincoun. That whenever the declarant 
 got up, he was attacked by two of lord Egiintoun's 
 fervants ; from one of them he twifted his lordfhip's 
 gun, and had not both the fervants engaged him, 
 clofdy, he does not know what might have been 
 the confequence, or that he might not have (hot 
 one of them too, upon his own defence. That the 
 declarant threw away his own gun upon its being dif- 
 charged, and lord Egiintoun's fervant attacking him. 
 That Mr. Brown, tide-waiter in Saltcoats, Andrew 
 Wilfon, wright in Beith, Alexander Bartleymore in 
 Park-houfe, and two of lord Egiintoun's fervants, 
 whofe names he does not know, were prefent during 
 the whole, quarrel. 
 
 ("Signed; MUNGO CAMPBELL. 
 
 CHAR. HAMILTON, J. P. 
 
 S E-
 
 C * 3 
 
 SECOND DECLARATION. 
 
 At Air, the twenty-feventh day of October, feven- 
 teen hundred and fixty-nine years : 
 
 Which day Mungo Campbell, officer of excife in 
 Saltcoats, prefent prifoner in the Tolbooth of Air, 
 being brought before Mr. William Duff, advocate, 
 fheriff-depute of the fhire of Air, and the declaration 
 which he emitted on Tuefday the twenty-fourth of 
 October inftant, before Charles Hamilton of Craigh- 
 law, prefent provoft of the borough of Irvine, and one 
 of his Majefty's juftices of the peace for the (hire of 
 Air, being read over to him, declares, That he volun- 
 tarily emitted faid declaration, and figned the fame, 
 and ftill adheres to it, with this addition ; That he 
 fet out from Saltcoats on laft Tuefday forenoon, 
 in company with Brown, tide-waiter in Salt- 
 coats : that they went together the length of Mont- 
 fbdd-bank, and then came down the burn a little way 
 with an intention of finding a wood-cock. That he 
 crofled faid burn, which divides lord Eglintoun's pro- 
 perty from Montfodd, and went to the fea-fhore, and 
 was. walking along the more within the fea-mark, 
 looking for a (hot of plover, when lord Eglintoun 
 came riding up to him , and having difmounted, 
 demanded the gun, as mentioned in his former de- 
 claration. That lord Eglintoun ufed feveral harfh 
 expreffions to him, but no threatenings ; nor did the 
 declarant underftand that he had any further inten- 
 tion than to take the gun from him. That upon lord 
 Eglintoun's demanding his gun, he retired from him, 
 and cocked the gun, and continued retiring for forty 
 or fifty yards, as he thinks, till he fell down, as men- 
 tioned in his former declaration. That when he was 
 lying upon the ground, lord Eglintoun came up to 
 him, and grafped at his gun, at which time the gun 
 went off, as mentioned in the faid declaration. And 
 this he declares to be truth. This declaration, wrote 
 
 by
 
 [ 62 ] 
 
 by John Murdoch, flieriff, clerk-depute of Airfhire, is 
 emitted and fubfcribed by the faid Mungo Campbell, 
 place, day, month, and year of God, aforefaid, be- 
 fore thefe witnefles, Ebenezer Goldie, writer in the fhe- 
 iriff clerk's office, at Air, and the faid John Murdoch. 
 (Signed) , MUNGO CAMPBELL. 
 (Signed) WM. DUFF. 
 
 JOHN MURDOCH, witnefs. 
 EBEN. GOLDIE, witnefs. 
 
 Whereupon the dean of faculty, in behalf of the profecu- 
 tor, declared he clofed his proof. 
 
 The following witnefies were then adduced on the part 
 of the pannel for his exculpation. 
 
 But before they were adduced, the counfel for the pannel 
 opened the firft article of their evidence, which was, That the 
 pannel had a licence for fhootrng upon the grounds of the 
 following perfons in the neighbourhood of Saltcoats, viz. 
 Dr. Hunter of Momfod, John Alexander of Boydftone, 
 John Reid of Seabank, John Hamilton of Grange, and Patrick 
 Warner of Ardier. 
 
 The dean of faculty, as counfel for the profecutor, rather 
 than detain the court in a proof of fafts, which are in no 
 degree material, agrees to hold it for proven, that the five 
 perfons above condefcenchd upon, gave fuch licences to the 
 pannel to {hoot upon their grounds ; but denies that they 
 theoifelves had the qualification required by law to entitle 
 them to kill game, or to grant fuch licences to the pannel. 
 
 (Signed) ALEX. LOCKHART. 
 
 And a licence from the Earl of Loudon, bearing date the 
 Twenty-eighth of July, One thoufand feven hundred fixty- 
 four em | cvvcring the pannel to hunt upon his lordlhip's muir 
 of Muirkirk, with dog and gun only, being produced, the coun- 
 iel for the profecutor admitted, that the fame was fubfcribed 
 by the Earl of Loudon, .and the fame was read to the jury. 
 
 (Signed) HENRY DUNDAS. 
 
 And another licence by Hugh Campbell, fa&or to the Earl 
 of Marchmonr, to the pannel, for fhooting upon his lord- 
 fhip's ground, bearing date the Thirteenth day of April, 
 One thoufand feven hundred fifty-two, being alfo produced; 
 the couiifei for the profecutors reprefented, that they were 
 
 unaQ-
 
 tfhscquainted with the hand-Writing of the perfon whofe fub- 
 fcription it bears ; but, to fave time to the court and jury, 
 they were willing to admit the reprefentation of the counfel 
 for the parfnel as evidence, that this licence was really grant- 
 ed of the date it bears. 
 
 (Signed) HENRY DUNDAS. 
 
 The ccunfei for the pannel, in anfwer to the quality added 
 to the rft admiflion by the counfel for the prolecutor, do fay, 
 that by the law and practice of this country, every land- 
 holder has a right to (hoot, ami to grant licences for (hoot- 
 ing upon his own ground. 
 
 The counfel for the pannel opened, as another matter of 
 evidence in his exculpation, that lord Eglintoun was fre- 
 quently in ufe to profecute poachers, but that he never pro- 
 fecuted the pannel as a poacher, and offered to prove the fame. 
 
 The counfel for the profecutor anfwered, thar, to their 
 knowledge, the pannel ntver was profecuted by lord Eglin- 
 toun as a poacher, though they believe that lord Eglintoun 
 frequently profecuted poachers. 
 
 (Signed) HENRY DUNDAS, 
 
 DAVID STIRRAT,mafon,inGourack, aged forty- 
 fix year?, married, purged of malice and partial coun- % 
 fel, fworn, and interrogate, depones, That about 6fteen 
 years ago, when the deponent one day was carrying 
 his gun upon the late lord Eglintoun's ground near 
 Saltcoats, he faw a gentleman, whom he did not know, 
 riding towards him, whereupon he hid his gun in a 
 bum. That the gentleman, whom he faw afterwards to 
 be the earl of Eglintoun, having come up, knocked 
 the deponent down with his whip ; that the deponent 
 having recovered, was aikcd where his gun was: 
 whereupon the deponent went to the bufh, took ic 
 out, and gave it to the earl, and no more happened ; 
 That the deponent was a little ftupified that day with 
 the blow, but did not feel it after, and that he never 
 got back his gun, and that the gun was worth about 
 twelve (hillings, as the deponent thinks. Caufa /dentine 
 galet. And this is truth as he (hail anfwer to God. 
 
 (Signed) DAVID STIRRAT. 
 
 ALEX. BOSWELL. 
 
 JAMES
 
 JAMES CRAWFURD, late tenant in Caldcoats, 
 no\v in Wafhwalls, aged forty and upwards, married, 
 purged of malice and partial counfel, folemnly fworn, 
 and interrogate, depones, That four years ago the Jate 
 earl of Eglintoun told him that he had taken a gun 
 from a lad in the Muir. That the lad had ftruggled to 
 keep the gun, and that he had given him a fwitch or 
 two in taking it from him ; That the earl delivered 
 this gun to the deponent, and defired him to reftore 
 it to the lad's brother, to whom he underftood it be- 
 longed. That the deponent having difcovered that 
 the gun belonged to John Brown, the brother of 
 Thomas Brown, gave the gun to the faid John 
 Brown, in Blacklaw. Caufa fcienti<e patet. And this is 
 truth as he (hall anfwer to God. 
 
 (Signed) JAMES CRAWFURD. 
 
 ALEX. BOSWELL. 
 
 THOMAS BROWN, younger brother to John 
 Brown, in Blacklaw, aged twenty-two years, unmarried, 
 purged of malice fc and partial counfel, fworn, and inter- 
 rogate, depones, That about four years ago, when 
 the deponent was going with a gun, within half a 
 mile of his own houfe of Blacklaw a gentleman, 
 whom the deponent did not know, came up to him, 
 and infifted to have his gun. That the deponent 
 ftruggled to keep it, and the gentleman to take it ; 
 and when fo ftruggling the gentleman gave him a 
 blow or two with his fift upon his head, but not 
 very fore, and took away the deponent's gun. That 
 the deponent got his brother, John Brown, to go and 
 endeavour to get back the gun -, and his brother re- 
 turned with it, telling him that he had got it from 
 the immediate preceding witnefs, James Crawfurd ; 
 and depones that he never employed Dr. Gumming 
 in Irvine, or any body elfe to cure him, as he had no 
 occafion. Caufa -fcienti* patet. And this is truth as he 
 (hall anfwer to God. 
 
 (Signed) THOMAS BROWN. 
 
 ALEX. BOSWELL.
 
 r 5 _ j 
 
 The counfel for the p^-nnel in the laft place propofed to 
 lay before the jury a printed copy of the fiift draught of tre 
 indictment againft the pannel ; wherein th.ev fay, that icveral 
 facts are admitted, which are fupprefied, or differently ftated,' 
 in the indictment now under trial. 
 
 To which it was anfwered by the counfel for the profecu- 
 tors, That the piece of paper referred to is not the indictment 
 which was ever intended to be ferved upon the pannel, as is 
 evident from neither witneffes or jury being fubjoined to the 
 fame. It is nothing more but one of four copies of a rough 
 draught of the iriJictment, thrown eft for the purpofe of be- 
 ing fubmitted to the counfd for the prdfecutor, for their con- 
 fideration ; and that accordingly it v/as confidered by them. 
 It was amended in fuch a manner as appeared to them moft 
 agreeable to the information they had received, and moft 
 calculated to give a fair trial to the pannel, That this is the 
 real ftate of tne fact, which the counfei ibr the profecutofs 
 have no objection fhould be admitted in the record ; but they 
 do object to your lordihips againft any other* evidence being 
 adduced relative to tfiis master, bccaufe they confider the at- 
 tempt as highly irregular; arid which, if tolerated, might be 
 attended ,with the mpl': dangerous confequences in the con- 
 duit of criminal bufineis in this country, and that confidence 
 which the law countenances, as abfolutely neceflary betwixt 
 counfel and their employers. 
 
 4 
 
 At 1 2 o'clock at night cf the 26th of February. 
 
 The procurators for the pannel thereupon declared they 
 clofed their proof in exculpation. 
 
 Whereupcn the evidence on the part of tbe profecutors 
 was fummed up to the jury by Mr. Alexander Lockhart,- and 
 on the part of the pannel by Mr. David Rae, advocate. 
 
 Betwixt the hours of four and Jive of the clack of the 
 of Tuefday the 22J day of February. 
 
 The lord juftice- clerk, and lords commiflioners of jufH- 
 ciary ordain the affize inftantly to inclofe in this place, and 
 to return their verdict in the fame place this evening, at fix 
 o'clock ; continue the diet againft the pannel, and whole 
 other diets of court till 'that time ; ordain the fifteeen af- 
 fizers, and all concerned, then to attend, each under the 
 pains of law, and the pannel in, the me'an time to be earned 
 back to prif&n. 
 
 K Curia
 
 [ 66 ] 
 
 Curia Jujliciaria S. D. N. Regis tent a in nova SeJJlonis 
 Domo de Edinburgh vigefimo feptimo die February, 
 willefimo feptingcnte/imo & feptuagefano per IlonorabiUs 
 r j:rcs Thorn am Miller de Barjkimming dominum juftici- 
 anim dcr:ciim^ Alexandrum Bofweil de Auchinleck y 
 Hcnricum Home de Kaimes, Jacobum Fergufon de Pit- 
 fcur y G 'cor -w mm Brown de Coaijton^ & Robertum 
 Bruce de Kennett^ dominos commiflionarics Jujliciaria 
 difl. S. D. N. Regis. 
 
 Curia legitime Ajjirmata. 
 
 INTRAN. MUNGO CAMPBELL, officer of excife at 
 Sakcoats in the county of Air, pre- 
 fcnt prifoner in the Tolbooth of Edin- 
 burgh, pannel, 
 
 Indicled and accufed as in the preceding Sederunt. 
 
 The perfons who paft upon the ailize of the faid panne 1 , 
 ieturiicd the following verdit. 
 
 At Edinburgh^ the twenty-feventh day of Fe- 
 .bruary, one thoufand ieven hundred and fe- 
 venty years. 
 
 THE above affize having ioclofed, made choice of 
 the faid Hugh Dalrymple, of Fordcli, to be their 
 chancellor, and William Tytler of WoodhouQie to be 
 thrir clerk , and having considered the criminal in- 
 dictment, raifed and purfued at the inftance of Ar- 
 chibald earl of Eglintoun, brother-german to the de- 
 ceafed Alexander earl of Egiintoun, with concourfe, 
 and atfo at the inftance of James Montgomery, efquire, 
 his Majefty's advocate for his Majefty's intereft, againlt 
 Mungo Campbell excife ofMcer at Sakcoats, in the 
 " county of Air, prefent prifoner in the Tolbooth of 
 Edinburgh, pannel ; with the interlocutor on the 
 relevancy thereof pronounced by the lord juftice-ckrk 
 
 and
 
 C 67 ] 
 
 and lords commiffioners of judiciary, the depofitionS 
 of the witneffes adduced by the profeciucrs for prov- 
 ing their libel, and the declarations of the pannel 
 libelled on, together with the admifilons made by the 
 procurators for the profecutors, and the depofitions 
 of the witneffes adduced by the pannel for his exculpa- 
 tion, They, by a great plurality of voices, find the pan- 
 nel, Mungo Campbell, GUILTY. In witnefs whereof 
 their faid chancellor and clerk, have fubfcribed thefe 
 prefents in their names, and by their appointment, 
 place and date forefaid. 
 
 (Signed) HUGH DALRYMPLE, Charic- 
 WILLIAM TYTLER, Clerk. 
 
 THE lord jufticc-clerk, and lords commiffioners of 
 judiciary, having confidered the verdict of affize, 
 dated and returned this twenty- feventh day of Febru- 
 ary, againft Mungo Campbell officer of excife in 
 Saltcoats, in the county of Air, prefent prifoner in 
 the Tolbooth of Edinburgh, pannel; whereby the 
 affize by a great plurality of voices, find the faid 
 Mungo Campbell, pannel, guiky , They, in refpet 
 thereof, by the mouth of Edward Hay, dempfter of 
 court, decern and adjudge the faid Mungo Campbell 
 to be carried from the bar back to the Tolbooth of 
 Edinburgh, therein to remain, and to be fed upon 
 bread and water only, in terms of the act of parlia- 
 ment pad in the twenty- fifth year of the reign of his 
 late majedy king George the fecond, entitled " An 
 " act for preventing the horrid crime of murder," 
 until Wednefday the eleventh day of April next to 
 come, and upon that day to be taken forth of the 
 faid Tolbooth, and carried to the common place of 
 execution in the Grafs-market of Edinburgh-, and 
 then and there, betwixt the hours of two and four 
 o'clock in the afternoon of the faid day, to be hanged 
 by the neck by the hands of the common executioner, 
 upon a gibbet, until he be dead -, and his body there- 
 after to be delivered to Doctor Alexander Monro, 
 
 K 2 pro
 
 [ 68 ] 
 
 profefibr of anatcmy in Edinburgh, to be by him 
 publickly difiefted and anatomized, in terms of the 
 faid ad ; and ordain all his moveable goods and gear 
 to be efcheac and inbrought to hisMajeity's ufe: which 
 is pronounced for doom. 
 
 pTHO. MILLER. 
 I ALEX. BOSWELL. 
 Q . , 1 HENRY HOME. 
 
 1 JAMES FERGUSON, 
 j GEO. BROWN. 
 LROBERT 'BRUCE. 
 
 INFOR-
 
 t I 
 
 FOR 
 
 .ARCHIBALD Earl of EGLINTOUN, 
 
 AND 
 
 JAMES MONTGOMERY, Efq, 
 
 His Majefty's Advocate, for his Majefty's Intereft ; 
 AGAINST 
 
 MUNGO CAMPBELL, 
 
 Excife-officer at Saltcoats, in the County of Air, 
 Now PRISONER in the Tolbooth of Edinburgh, , 
 
 P A N N E L.
 
 JANUARY, 3, 1770. 
 
 INFORMATION 
 
 FOR 
 
 ARCHIBALD Earl of Eglintoun, and JAMES 
 MONTGOMERY, Efquire, his Majefly's Ad- 
 vocate, for his Majefty's Intereft ; 
 
 AGAINST 
 
 MUNGO CAMPBELL, Excife-officer at Saltcoat?, in 
 the County of Air, now Prifoncr in the Tolbooth 
 of Edinburgh, Pannel. 
 
 TH E faid Mungo Campell (rands indited and accu- 
 fed of the crime of Murder, " In fo far as the de- 
 ceafed Alexander Earl of Eglintoun having, the 
 time libelled, gone out from his houfe of Eglintoun, 
 in the county of Air, in his coach, to look at Ibme of his 
 grounds, and being told by one of his fervants, when upon 
 the road from Saltcoats to Southennan, within the parifh of 
 ArJrofTan, and faid county of Air, that he obferved two per- 
 fons, one of them with a gun, at a fmall diftance, upon his 
 lordfhip's ground of Ardroflan, the faid deceafed earl, who, by 
 an advertisement in the newspapers, 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 Ardroflan into the adjacent fands ; and he having 
 come near to the two perfons on the faid fands, and difcover- 
 ing the one with the gun to be the faid Mungo Campbell, he 
 accofted him, by faying, Mr. Campbell, I did not expett to have 
 found you Jofcon upon my grounds, after the promtfe you made me % 
 when Haft catched you, when you had Jhot a bare. And the earl 
 having thereupon defired him to deliver his gun to him, he re- 
 fufed fo to do ; and, upon the earl's approaching towards 
 him, he cocked his gun, and prefented, or pointed it at him ; 
 and upon the earl's then faying, Sir, will you Jhoot me ? he an- 
 fwered, That he 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 
 iervant to bring his gun from his coach, which was then at 
 4 fame
 
 r 72 i 
 
 fome diftance ; and the earl having difmounted, and walked 
 towards him, leading his horfe in his hand, without arms or 
 offenfive weapons of any kind, the pannel retire:), or ftept 
 backwards, as the earl approached, and continued to point his 
 gun at him, defiring his lordfhip again to keep off, or by God 
 he would {hoot him j and a fervant near to the earl, having 
 begged of the pannel for God's fake to deliver his gun, he again 
 refufed, faying he had aright to carry a gun ; to which lord 
 Eglihtoun anfwered, that he might have a right to carry a 
 gun, but not upon his eftate without his liberty. But the 
 pannel frill perfifled in refufing to deliver his gun, and by 
 ftriking his foot againft a fmall ilone; having fallen upon his 
 back, when retiring, and keeping his gun pointed at lord 
 Eglintoun, as above defcribed, the mu/zle of the gun came 
 thereby to be altered in the direction from lord Eglintoun, 
 and to be pointed near ftraight upwards ; and lord Eglin- 
 toun, who was only diftant from the pannel two or three 
 yards, havingftopped or flood ftill upon his falling, the pannel, 
 as foon as he could recover himfelf, and refting upon his arm 
 or elbow, aimed or pointed his gun to the faid Alexander 
 earl of Eglintoun, and wickedly and felonioufly fired at him, 
 then {landing unarmed, fmiling at his accidental fall ; and by 
 thefhot he was wounded in the beily, in a dreadful manner, 
 the whole lead-fhot in the gun havmg been thrown into his 
 bowels ; of which wound the faid Alexander earl of Eg- 
 lintoun died that night about twelve o'clock." 
 
 The libel further iets forth, "That the pannel, after perpe- 
 trating fo cruel, wicked, and barbarous a crime, did immedi- 
 ately run to one of lord Kglintoun's fervants, who had brought 
 his gun from hiscoach, and who was {landing at fome diftance, 
 and endeavoured to wreft the gun from him, but was prevent- 
 ed by the afiiftance of another fervant ; and when the two 
 fervants were engaged with tbe pannel, defending the gun, and 
 endeavouring to fecure him, the earl, who was then fitting on 
 the ground, called to the fervants to fecure the man, for he 
 had fhot him ; but not to ufe him ill, or ufed words to that 
 purpofe and effecl; and, upon the pannel's being brought near 
 to lord Eglintoun, he faid to him, Campbell, I would not 
 have (hot you. 
 
 " That the pannel, when carrying from the place, where 
 he committed the forefaid crime, in Saltcoats and Irvine, did 
 acknowledge to fundry perfons, that he had wilfully arid in- 
 tentionally {hot the -faid earl ; and that the earl, when within 
 two or three hours of his death, in giving an account to 
 John Muir, furgeon in Glafgow, of what had puffed betwixt 
 the pannel and him, did, in fubftance, fay, that the pannel 
 did take an aim at him, and {hot him wilfutiy. *' At
 
 [ 73 3 
 
 cc At leaft, at the time and place above defcribed, the faid 
 Alexander earl of Eglintoun was felonioufly murdered, or be- 
 reaved of his life, by a wound he received from the (hot of a 
 gun, and of which wound he died in about twelve hours, or 
 fome fhort fpace thereafter; and the pannel was adlor, art and 
 part of the faid murder." And the libel concludes, " That all 
 this, or part thereof, being proved by the verdict of an affize, 
 the pannel ought to bepuniftied with the pains of law." 
 
 The pannel having been brought to the bar of the court of 
 jufticiary, and having heard the forefaid indictment read, he 
 denied the libel, as laid ; and, at the fame time, his counfel 
 ftated the fails on which they founded his defence to the fol- 
 lowing purport: 
 
 " That the pannel, who is an excife-officer, was in ufe to 
 carry a gun along with him, when he went out in queft of 
 fmugglers, and that he fometimes took a fhot when he met 
 with any game upon the lands of certain gentlemen in the 
 neighbourhood, from whom he had that liberty; that about 
 a year ago, he went to the Horfe-Ifland (a noted place for 
 fmuggling-ve'ffels) fituated upon the coaft, about two miles 
 from Saltcoats ; that, in returning from this ifland, he took a 
 road for foot-pafiengers, running through one of lord Eglin- 
 toun's parks, and having ftarted a hare, and having his gun 
 along with him, he killed the hare; that he having been 
 quarrelled by the earl for fo doing, he promifed never to of- 
 fend again ; and as he knew that the earl was {trie! in preferv- 
 ing the game, and that he frequently held courts for the pur- 
 pole of profecuting poachers, he was careful not to tranf- 
 grcfs ; and, accordingly, he even gave away his fifhing-rod, 
 when he heard that his lordfhip had prohibited fifhing upon 
 the' water of Garnock. 
 
 " That the pannel, having a licence to fhoot on the lands 
 of Montfodd, the property of Dr. Hunter, lying to the north 
 of the lands of ArdrofTan, the property of the earl ; and hav- 
 ing met with John Brown on the day libelled, they propofed 
 to take their courfe that way, and went by the common 
 church-road, through the grounds of one Miller, towards 
 Montfodd. 
 
 " That, having met with no game, they refolved to crofs 
 over to fome rifing grounds, from whence they could have 
 a view of the Horfe-Ifland ; from whence they went through 
 the lands of Montfodd, palled over a fandy plain ; and, when 
 they came towards the property, of lord Eglintoun, rn place 
 of turning down by the fea-fide, they kept a little higher, 
 through the lands of Ardroffan, the property of the earl, that 
 they might fee the ifland ; after which they came down, and 
 proceeded towards the fliore. 
 
 L ' That
 
 [ 74 1 
 
 <{ That in their way thither, they perceived a coach at a 
 little diftance ; and a perfon having come up to them on 
 horfeback, whom they difcovered to be lord Eglintoun. His 
 lordfhip acccfted the pannel with great paffion, calling him 
 Scoundrel and Rafcal ; afked him how he prefumed to fhoot 
 on his ground, and demanded of him to deliver up his gun. 
 The pannel was amazed ; told him, he had not fired a fhot 
 that day, and had not been on his ground with the intention 
 of killing game. The earl, however, perfifted ; and the pannel 
 protefted, and faid, * Purfue me at law, but I will not give 
 up my property,' or words to that import. The pannel at the 
 fame time held forward the gun, as the firm indication of his 
 purpofe not to part with ir, and warned his lordfhip not to 
 perfift in the demand. The earl, however, puflied forward, 
 with an intention to feize the gun by force. The pannel re- 
 tired, and the earl difpatched his fervant for a gun, faying he 
 could fhoot as well as the pannel. Brown thereupon took 
 fright, and retired towards Saltcoats. 
 
 *' That the earl's fervant returned with a gun, and was 
 within two or three yards of his lordfhip, when the pannei 
 having fallen, his gun unfortunately went off, and fhot the 
 carl, who was very near him. 
 
 " That the fervants did thereupon immediately attack the 
 pannel, beat, and ufed him cruelly : that the pannel, in his 
 own defence, endeavoured to feize the earl's gun, but was 
 prevented by fuperior force." 
 
 The above is the fubftance of the fa&s which were flated on 
 behalf of the pannel ; and from thence it was argued, imo, 
 That the pannel had no intention to kill the earl : that his 
 death was occafioned by the gun's having accidentally gone 
 off, when the pannel fell ; and thar, this being the cafe, there 
 was no juft ground for charging the pannel with the crime of 
 murder : that what happened was no other than homicide, 
 purely cafu-al, which meriteth no puniihment. 
 
 ido. It was pleaded that, fuppoting the pannel had fhot the 
 carl intentionally, yet the fame was juflifiabjt ; ift, In refpecl: 
 it was done upon juft provocation, which he undefervedly 
 received from the earl. 2dly, In refpect that it was neceffary, 
 in defence of his property. And, 3dly, in defence of his life. 
 
 3//0, It was pleaded, that, fuppoiing the pannel to have ex- 
 ceeded the moderctmen inculpates tutcla^ in defending either his 
 property or his life, he ought not to be punifhed capitally, as 
 for the crime of murder. And, 
 
 4/0, It was maintained, that, as the adT: did not proceed 
 from premeditated malice and forethought, but was commit- 
 ted on a fnddenty t ex caltre iracundlts^ an arbitrary punifh- 
 ment could only be inflicted. 
 
 1 The
 
 [ 75 3 
 
 The court having ordained both parties to give in infor- 
 mations, in obedience thereto, this is offered on behalf of 
 the profecutors. 
 
 And as to the firft defence, viz. that the homicide in this 
 cafe was merely cafual, the gun having accidentally gone off, 
 upon the pannel's falling to the ground, the purfuers (hall 
 not difpute, that the fame, if proved, will be fufficient to 
 elide the libel, in fo far as it concludes for a capital punifli- 
 ment, or the pains of law ; but as an intention to kill muft 
 be prefumed, where one perfon kills another with a lethal 
 weapon, efpecially in the prefent cafe, where it appears from 
 th6 fadts as ftated for the pannel, that he declared a fixed and 
 determined refolution to kill, if the earl did not keep off, it 
 will require a very ftrong and pointed proof to gain belief, 
 that the (hot immediately following thefe threats was merely 
 accidental ; and however this defence, if proved, might be 
 fufficient to exempt the pannel from the pains of death, yet, 
 as he was at any rate grofly culpable in having a loaded gun 
 confefledly placed in fuch a pofition, that if it fhould acci- 
 dentally go off, it could not fail to kill, the pannel would un- 
 queftionably be liable to a very high arbitrary punifhment. 
 
 The fecond defence infifted upon for the pannel was, that, 
 fuppofing him to have intentionally killed the earl, yet, as 
 he had received high provocation, the fame wasjuftifiable, at 
 leaft, that it ought to be available to free him, a pcena ordlna- 
 ria ; and this provocation he was pleafed to qualify in the 
 following manner, viz. that the earl accofted him with great 
 paflion, calling him fcoundrel and rafcal, and accufing him 
 of a breach of promife ; whereas, from the time he had made 
 that promife, he had never been upon the earl's ground with 
 an intention of killing game. 
 
 This averrnent of the earl's having accofted the pannel 
 with infulting language and opprobrious names, is what the 
 purfuers do pofitively deny ; the indi&ment fets forth very 
 particularly the whole converfation which paffed between the 
 earl and the pannel on that occafion, and the purfuers are 
 confident no more will come out on proof; but allowing, for 
 argument's fake, that the earl had expreffed himfelf in the 
 words that are here alledged, there is no relevancy in the de- 
 fence, and it is founded neither in law nor in found reafon ; 
 and indeed, if fuch a defence was to be admitted, it would 
 deftroy the chief purpofe and intendment of the law, in in- 
 flicting the pains of death upon this cruel and unnatural 
 crime. 
 
 Murder is a crime of fo horrid an afpecl, and fo /hock- 
 ing to human nature, that even the moft deprived part of 
 mankind, when in coo] blood, will ftarde at the thoughts ot 
 
 L 2 corn-
 
 [ 76 ] 
 
 committing it. It very rarely happens, that a man goes, 
 cooly and deliberately to work in murdering one of his fel- 
 low-creatures. Solon, a great and wife legiflator, thought 
 the crime of parricide fo unnatural, that he confidered it as 
 an affront to human nature to fuppofe that mankind could 
 be guilty of it, and therefore made no pofitive law againft 
 the commiflion of it ; and, for the fame reafon, if the pu- 
 nifhment of murder was only to be confined to cafes where 
 it is cooly and deliberately perpetrated, the fafety of fociety 
 would fcarce require a pofitive law againft the commiffion of 
 it ; fo that the great objecT: of the law was truly to curb the 
 paflions of mankind, and to prevent them from deftroying 
 one anocher, when roufed and heated, whether by provoca- 
 tion, real or imaginary. It is the duty of mankind, who 
 are endowed with rational faculties, to curb and fubdue their 
 paflions, and to keep them within proper bounds ; and as 
 laws were made and became neceflary, chiefly on account of 
 the depravity of mankind, thefe paflions cannot afford a fuf- 
 ficient excufe againft the ordinary punifhment of an atro- 
 cious crime. The fafety and good of fociety require, that 
 the ordinary punifhment fhould be inflicted, that mankind 
 may be cautious, and even when provoked, may keep a ftrict 
 guard over their actions, and curb and confine their paflions 
 within proper bounds. 
 
 It would therefore be highly inexpedient for the peace and 
 fafety of mankind, to hold it as any excufe for the commif- 
 fion of an atrocious crime, that the fame was done when in 
 the heat of paffion or anger, upon provocation received ; for, 
 befides, that there is no proportion betwixt the life of a man, 
 and any verbal injury that poflibly can be given, it is a rule 
 founded in the very being and exiftence of fociety, that no 
 man is at liberty to avenge his own wrongs ; and, as a ver- 
 bal injury already received, cannot be recalled, by killing the 
 perfoa who gave the injury ; fo the making it lawful, either to 
 kill, or otherwife to punifh the perfon who gave the injury, 
 would be truly allowing mankind to refent and avenge their 
 own wrongs, which the laws of no civilized ftate will ever 
 permit, as it muft neceflarily terid to the diffolution of fo- 
 ciety, and of all good order and government. 
 
 Accordingly, it is an opinion, univerfally received among 
 lawyers, that no verbal injury, which is all that is alledged 
 in this particular defence, is fufncient to excufe a poena ordi- 
 nary, in the punifhment of the crime of murder. 
 
 This very queflion is ftated by Voet, (lib. 48. tit. 8. 9.) 
 and refolved in the following words : " Proinde, fi quis in- 
 juria quadam verbal i provocatus, ufque adeo irse indulgendum 
 penfuerit, ut ftridacultro, gladipve injuriantem occidat, vix 
 
 eft,
 
 [ 77 1 
 
 eft, ut ab ordinaria poena abfolvendus fit, cum multum in- 
 terfit inter verbales injurias et atrociores reales, quarum hae 
 fi praec.efferint, mitigationem poenae fuadere poflunt j illae non 
 item, quippe tarn leves habitae, ut recantatione, deprecati- 
 one, fimilibufque modis fecundum tradita, in tit. de injuriis 9 
 evanefcant." 
 
 Sir George Mackenzie (tit. Murder, 3.) is alfo clearly 
 of this opinion, which he delivers in the following paflage : 
 *' It is alfo controverted amongft lawyers, if, feeing honour 
 is as dear as life, it be lawful to kill him who afperfes our 
 honour, as it is lawful to kill him who aflaults our life ; and, 
 albeit Farinacius be of the judgment, that he who is thus 
 provoked, being a perfon of far more eminent condition than 
 the injurer, killing him is not to be punifhed as a murderer, 
 fed poena extraordinaria, licet injuria fit verbalis : yet, in my 
 judgment, he errs in that pofition ; for, in effect, that is 
 not felf-defence, (becaufe the verbal injury cannot be re- 
 treated nor retained) but it is revenge ; yet dolor jujius all" 
 quando operatur^ ut pcena ordinaria temperetur. But yet that is 
 not allowed in killing, and fuch other injuries, which non 
 poffunt revocari" 
 
 Matthasus in mentioning the cafes where the ordinary pu- 
 nifhment ought not to be inflicted, makes no mention of 
 verbal injuries, but confines it to thofe real injuries in which 
 human nature cannot be fuppofed to overcome the juft re- 
 fentment naturally arifing againft the committers of them ; 
 " Eo amplius, et fi dolo malo homo caefus fit, tamen inter- 
 dum pcena gladii remittitur ; nam qui impetu occidunt, et fi. 
 dolo non carent, tamen fi juftus dolor impetum concitaverat 
 mitius puniuntur. Ita refponfum de marito qui occidit ux- 
 orem aduheram, &c." Tit. de Sicariis, cap. 3. feet. 4. 
 
 And although the law of England has, in certain cafes, 
 been lefs fevere in the punifhment of homicide, than the law 
 of Scotland, and has accordingly eftablifhed a diftinction be- 
 twixt murder and manflaughter, yet it is there laid down as 
 a general rule, that a verbal injury is in no cafe fufficient to 
 acquit from the ordinary punilhment of murder ; efpecially 
 if the fame was committed by a lethal weapon. 
 
 This do&rine is clearly laid down in a book of great au- 
 thority in the law of England, viz. a Treatife upon certain 
 Branches of the Crown Law, by Mr. Juftice Fofter. In 
 treating of homicide, cap. 5. feet. i. he fays, ** That words 
 of reproach, how grievous foever, are not a provocation fuf: 
 ficient to free the party killing from the guilt of murder; nor 
 are indecent provoking actions or geftures, expreflive of con- 
 tempt or reproach, without an aflault upon the perfon. 
 
 This
 
 C 78 ] 
 
 " This rule will, I conceive, govern every cafe where the 
 party killing upon fuch provocation, maketh ufe of a deadly 
 weapon, or otherwife manifefteth an intention to kill, or to 
 do fome great bodily harm ; but if he had given the other a 
 box on the ear, or had ftruck him with a ftick or other wea^- 
 pon, not likely to kill, and had unluckily, and againft his 
 intention, killed, it had been but man/laughter." 
 
 " The difference between the cafes is plainly this : in the 
 former the malitia, the wicked, vindictive difpofition already 
 mentioned, evidently appeareth ; in the latter, it is as evi- 
 dentry wanting. The party, in the firft tranfport of his 
 paffion, intended to chaftife for a piece of infolence, which 
 few fpirits can bear ; in this cafe, the benignity of the law 
 interpofeth in favour of human frailty j in the other, its juf- 
 fice regardeth and punifheth the apparent malignity of the 
 heart. 
 
 ** And it ought to be remembered, that in all other cafes 
 of homicide, upon flight provocation, if it may be reafon- 
 ab!y collected from the v/eapon made ufe of, or from any 
 other circumftance, that the party intended to kill, or to do 
 fome great bodily harm, fuch homicide will be murder. The 
 mifchief done is irreparable, and the outrage is confidered as 
 Bowing rather from brutal rage, or diabolical malignity, than 
 from human frajlty j and it is to human frailty, and to that 
 alone, the law indulgeth in every cafe of felonious homi- 
 cide." 
 
 The very fame do&rine is laid down by Mr. Blackftone, 
 in his Commentary upon the Law of England, vol. IV. fol. 
 200. " If a man kills another fuddenly, without any, or 
 without a considerable provocation, the law implies malice ; 
 for no perfon, unlefs of an abandoned heart, would be guilty 
 of fuch an ar, upon a flight, or no apparent caufe. No af- 
 front, by words or geftures only, is a fuffjcient provocation, fa as 
 tv excttfe or extenuate fuch afls of violence^ as manife/IIy endanger 
 the life of another. But if the perfon fo provoked, had unfor- 
 tunately killed the other, by beating him in fuch a manner, 
 as fhewed only an intent to chaftife, and not to kill him, the 
 Jaw fo far confiders the provocation of contumelious beha- 
 viour, as to adjudge it only manflaughter, and not murder." 
 
 The fame dodtrine is laid down by Hawkins, tit. Murder, 
 
 $33- 
 
 Both the law and the reafon of it, are elegantly and di- 
 
 ftinclly pointed out by thefe authors. The law hath fo far 
 made an allowance for the frailty of human nature, that 
 where a perfon has received a verbal injury, he may retort it j 
 and it will even afford an alleviation of the offence, fuppo- 
 fing he fhould proceed to a moderate chailifcment j but as
 
 [ 79 3 
 
 there is no fort of proportion betwixt a verbal injury and 
 the life of a man, which, when taken away, can never be 
 reftored, fo, where a perfon proceeds in refentment of fuch. 
 injury, to imbrue his hands in the blood of any of his fel- 
 low-creatures, the law has moft juftly confidered, that an 
 action fo wicked and barbarous can only proceed from fuch 
 a malignity of heart and depravity of difpofition, as muft 
 render him a very unfit member of fociety, and a proper ob- 
 ject of that vengeance which the law has moft juftly inflicted 
 upon the {bedding of innocent blood. 
 
 But it will be necefTary to infift farther upon this point, as 
 it appears from the facts, as ftated by the pannel himfeif, that 
 it was not in a heat of paflion, and in refentment of any 
 provocation the pannel is fuppofed to have received, that the 
 earl was killed. The abufive language which the earl is 
 fuppofed to have given on the occaiion, is faid to have hap- 
 pened upon the earl's firft accofting the pannel ; fo that, if it 
 had been done in the heat of paflion, on account of the pro- 
 vocation received, it muft naturally have happened when the 
 abufe was given ; whereas it appears, from the pannel's own 
 Ihowing, that he was not overcome with pafiion upon the 
 occafion ; that he continued perfectly mafter of himfeif; 
 that he accordingly retired for fume time, and that upon the 
 earl's approaching near to him, the pannel killed him, in pro- 
 fecution of a fixed and determined purpofe and resolution. 
 
 And this leads the purfuers to confider what was in the 
 next place offered on behalf of the pannel, viz. that it was 
 lawful for him to kill the earl in defence of his property. 
 
 Upon this puint, it was faid for the pannel, that he had not 
 been trepaffing upon the earl's property ; that he was noc 
 upon his ground^ when the earl attempted to feize his gun ; 
 that he had not been upon them that day with an intention to 
 kill game ; and that, although he had, yet the law gave the 
 carl no power to feize his gun brew manu, or to inflict any 
 other punifhment upon him for the fuppofed trefpafs ; that 
 the earl ought to have had recourfe to a court of juftice for 
 inflicting the penalties of the law for the fuppofed ofFence ; 
 and that this point had been fo determined by the court of 
 fefllon, upon the 23d of January, 1753, in the cafe of Mr. 
 David Gregory, profeflbr of matnematicks in the univerfuy 
 of St. Andrew's, againft Walter Wemyfs of Lawthocker ; 
 and from "the premifes the following conclufion was drawn, 
 that as it was unlawful for the earl to feize the pannel's gun, 
 the pannel was intitled to defend his property againft fuch un- 
 lawful attack, even at the expence of the life of the invader ; 
 and this ought the more efpecially to afford the pannel a good 
 defence in the prefcnt cafe, that he having been a iuUu-r, be 
 
 could
 
 r so j 
 
 could not, confidently with his honour, furrender his gun to 
 any perfon whatever. 
 
 Whether the pannel's condufl, on this occafion, was con- 
 fiftent with the laws of honour, (hall be afterwards confi- 
 dered j that it was highly inconfiftent with the do&rines and 
 precepts of Christianity, cannot be difputed. It is therein 
 laid down, that *' if any man will fue thee at the law, and 
 take away thy coat, let him have thy cloak alfo ; and who- 
 foever (hall compel thee to go a mile, go with him twain." 
 Matth. v. 40, 41. The great Author of our religion did 
 thereby mean to teach mankind, that it was more becoming 
 the dignity of human nature to forgive injuries than to refent 
 them, and to inculcate upon them the fuitablenefs of a fpirit 
 of meeknefs and moderation, as moft conducive not only to 
 the private happinefs of individuals, but to the peace, quiet, 
 and good of fociety ; and that injuries, which in their nature 
 are trifling and inconfiderable, ought much rather to be fub- 
 mitted to, than to be made the ground of quarrel and dif- 
 pute ; and it muft furely, at firft fight, appear very incon- 
 fiftent with the aforefaid do&rine, for any man to maintain, 
 that rather than part with the poflfeflion of a trifling property 
 (which, if unjuftly taken from him, could eafily be reco- 
 vered) he fhould think himfelf at liberty to take away the 
 life of one of his fellow-fubje&s. 
 
 Indeed, without having recourfe to any pofitive law, either 
 divine or human, the purfuers may appeal to the common 
 feelings of mankind, fora determination of the prefent quef- 
 tion. There is no man who is pofiefled of any fpark of hu- 
 manity, or of any notions of right or wrcng, who muft not 
 at once declare that he would much rather furrender a pro- 
 perty, ten times the value of that which was the fubjedt of 
 conteft in this cafe, than fhed the blood of the meaneft, or 
 of the moft abje<t of the human fpecies. 
 
 As to the pannel's honour, which was much infifted upon 
 in this cafe, it is, with fubmiflion, rather too ludicrous to 
 fay, that a man whofe former rank in life was none other 
 than that of a common foldier, and who at prefent is an in- 
 ferior officer of excife, was in honour called upon rather to 
 take away the life of one of his fellow-creatures, than to 
 yield the pofiefllon of his gun, which he could eafily again 
 have recovered, if it was unjuftly taken from him. Indeed 
 this plea of honour, which is not a nomen juris , is a very im- 
 proper topick to be urged before your lordfhips as a court of 
 law and of juftice. Your lordfliips are not here to judge ac- 
 cording to the falfe notions and punctilios of honour that are 
 commonly entertained amongft a certain fet of men ; but 
 whether in law and in juftice, the panne) was intitled to main- 
 tain
 
 C 81 ] 
 
 tain the pofTdfion of his gun at the expence of the life of one 
 pf his majefty's fubje&s. 
 
 At the fame time, the purfuers will be pardoned to thjnk, 
 that if the pannel was to be tried by a court of honour, pro- 
 perly fo called, he would likeways be condemned, and that 
 it would be found, that he had not only acted a moft illegal, 
 barbarous, and inhuman part, but had behaved moft difho- 
 nourably. The earl accofted him defencelefs and unarmed. 
 If the pannel had confidered his honour as injuriously attacked 
 by the demand which the earl made to deliver up his gun, 
 he ought either to have laid afide his gun, and to have en- 
 gaged with the earl upon equal terms, or he ought to have 
 challenged him to fingle combat, and have waited till the 
 earl was properly armed for that purpcfe. But when, in, 
 place of following that courfe, (which might have been ex*- 
 pedted from one who pleads the point of honour) he pours 
 a loaded mufquet 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, by every 
 man who poflefles the fmalleft fpark of honour in his breaft. 
 Honour, therefore, cannot avail the pannel in this cafe. 
 The point of honour is much againft him. And therefore 
 the purfuers fhall leave that topick, and confider the queftion 
 in this ftmple view, Whether the pannel was intitled to main- 
 tain the poilefiion of his gun at the expence of the earl's lile, 
 fuppofing it to be true, but which was by no means the cafe, 
 thar the earl had either aflaulted the pannel, with an in- 
 tention to bereave him of his gun, or had ufed any threaten- 
 ing expreflions, fignifying his determined refolution fo to do.' 
 
 And, in the firjl place^ the purfuers beg leave to difpute 
 the point of law that was maintained upon the other fide, "j'iz t 
 That the earl had not a right to feize the pannel's gun. By 
 act 13 parl. 1707, it is exprefly enacted, * That no com- 
 mon fowler fhall prefume to hunt on any grounds, without 
 a fubfcribed warrant from the proprietors of the faid grounds, 
 under the penalty forefaid, bcfides forfeiting their dogs, guns, 
 and nets, to the apprehenders or difcoverers." 
 
 Jt is humbly fubmitted to your lordfhips, if it is not im- 
 plied in the very words of this ftatute, which forfeits the dogs, 
 guns, and nets to the apprebenders^ that it is lawful to feize 
 the dogs, guns, and nets, brevi manu, from the perfon found 
 in the tranfgreffion. This, with fubmiflion, is the only 
 fenfe and conduction which can be put upon the word ap- 
 prehenders in the forefaid ftatute; and as ihis is the natu.al 
 construction of the words, fo it fVems to be agreeable to the 
 true fpirit and intendrnent of the {tatut^, -viz. by the imme- 
 diate feizure of thele inliruments of dcftru6lion in the polTcf- 
 
 M fion
 
 [ 82 ] 
 
 fion of fuch unqualified perfons found in reatu, to prevent 
 their being again ufed to the fame unlawful purpofes, or 
 their being fecreted and otherways difpofed of, if allowed to 
 remain in their pofleflion, whereby the after- difcovery of 
 them might be attended with difficulty : and therefore it 
 would appear that the legiflature, from a fenfe of thefe incon- 
 veniencies, had, by the forefaid ftatute, introduced this more 
 fuinmary and effectual remedy, in permitting the dogs, guns, 
 and nets to be brevi manu apprehended, in order to lay the 
 foundation for an after-conviclion in a court of juftice. 
 
 Neither is this any thing new in the law ; all the ftatutes 
 made againft fmuggling, authorife the officers of the revenue 
 to begin with feizing the goods, leaving it to be afterwards 
 tried by the proper court, whether they have been juftly 
 feized or not, and whether they fhould be carried into con- 
 demnation, or reftored to the proper owner. 
 
 And as to the decifion, Gregory contra Wemyfs, it is, in 
 the fiift place, a fingle decifion ; and when the queftion does 
 again occur, it would well merit to be reconfidered, efpe- 
 cially as the ftatute has been univerfally underftood in the 
 lenfe now contended for by the purfuers. It has from time 
 immemorial been a general practice over the whole kingdom, 
 to feize dogs, guns, and nets, without any previous con- 
 vi&ion ; and until the forefaid cafe in the year 1753, no action 
 of damages or reftituticn had ever been brought, on account 
 of fuch feizures. 
 
 But, 2r//p, The decifion, in the cafe of Gregory, as it 
 ftands reported, does not appear toeftablifti the general point. 
 Baird, from whom the gun was feized, was not proprietor 
 of the gun : it belonged to Mr. Gregory, who was accom- 
 panied by Baird j and it does not appear from the decifion, 
 that Mr. Gregory was not intitled to kill game. 
 
 It is of no moment, that the pannel was not upon the earl's 
 ground, but upon the fea-fhore, when his gun was demand- 
 ed j he had been upon the earl's property immediately before, 
 under the earl's own obfervation ; and as it mud be pre- 
 fumed, that he was there with an intention of killing game, 
 if he had found any, the earl had the fame right to feize his 
 gun, as if he had got up with him before he left the earl's 
 grounds, by ftepping in upon the adjacent fands. 
 
 The purfuers, at the fame time, apprehend, that it is very 
 immaterial in the prcfent queftion, whether the earl, in ftrift 
 law, had a title, brevi manu, to feize his gun or not. \Vas 
 the queftion here fimilar to that in Mr. Gregory's cafe, about 
 reftitution of the gun, as unlawfully feized, the queftion in 
 law, How far the feizure was legal or not, would fall pro- 
 perly to be confidered and determined ; but, for the prefent 
 
 pur
 
 r 83 j 
 
 purpofe, it is fufficient to fay, that it was univerfally under- 
 ftood, that the guns of peribns, who have neither title nor 
 Jicence to hunt upon the grounds of another, might be feized, 
 Irevi manu, and that, in fact, fuch feizures were generally 
 made without any complaint. 
 
 This is fufficient to fhow, quo animo, the earl required of 
 the pannel to deliver his gun. The pannel could not but know, 
 that the earl did not intend to commit a robbery, by vio- 
 lently and felonioufly carrying off the property of another, to 
 which he had no manner of right, but that he a&ed only 
 under the common apprehenfion, that every heritor had a 
 right to feize dogs, guns, and nets, from unqualified perfons 
 hunting upon their property, without any licence. It 
 plain, that the earl, if he had, de faflo, feized and carried off 
 the gun, could not have been tried as guilty of felony, even 
 upon the fuppofition that, in ftri& law, he was not autho- 
 rifed to make the feizure ; the fartheft it could have gone, 
 would be only to found the pannei in a civil ar.ion for reititu- 
 tion, or perhaps for damages ; and, when that is the cafe, it 
 is, with fubmiffion, clear, that the pannel, in defending his 
 property againft that trefpafs, was not intitled to takeaway 
 the life of the fuppofed trefpaffer. 
 
 It was indeed maintained on behalf of the pannel, that a man 
 was intitled to defend his property to the iaft, even at the ex- 
 pence of the lite of the invade;- j and fundry authorities were 
 appealed to, in fupport of this general propofition, particu- 
 larly, Grotius De jure belli et pads, lib. 2. cap. i. n, Puf- 
 fendorf De jure natures et gentium, Carpzovius, and others ; 
 but when thefe authorities are attended to, none of them can 
 avail the pannel. Thefe authorities do only apply to the cafe 
 where one's property is feloniwfly invaded ; and when it can- 
 not be otherwife fecured than by taking away the life of the 
 invader ; which will never apply to the prefent cafe, where 
 the attack made upon the pannel was not with a felonious in- 
 tention, but where his property was abfolutely fecure, and 
 could eafily have been recovered, if the earl had not a juft 
 title both to feize and to hold it. 
 
 And it was a poor reply that was made on the other fide, 
 viz. that the pannel was not obliged to fubmit totheexpence 
 of a law-fuit, in order to recover his property; becaufe, if 
 it (hould be found that the earl was in the wrong, his gun 
 not only would have been reftored to him, but the court 
 would have fully indemnified him of the whole damages and 
 expences he could qualify he had fuftained, by the illegal 
 .feizure and detention of his gun. 
 
 The pannei's counfel did likewife appeal to /. 3. 9. f}\ 
 De i)i ( "t vi armaia -, and alfo to /. i. dd> 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!<s.-~- Such excefs does clearly fuppofe 
 that he was acting in defence of his life, which has been al- 
 ready fhown, could not have been the cafe, as his life, at no 
 time, was in the fmalleft danger. 
 
 Neither is" there any room for the quefiion, whether the 
 pannel, in this cafe, exceeded the moderamen inculpates iutelte y 
 in defending his property. Such a pica does neceffarily im- 
 ply, that it was lawful for him to defend his property, at the 
 expence of the life of the invader, if the earl could have 
 1>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<ft abfolutely neceflary for the defence of his property, or, 
 if his property could have been faved without going to that 
 extremity ; and, under thefe circumftances, there might have 
 been room for the pannel's maintaining, that he ought not to 
 be punifhed with the pains of death, becaufe he had gone 
 farther than was flri&ly neceflary for preferving his property. 
 But it has been already fhown, that the panne!, in this cafe, 
 was at no rate intiiled to maintain pofleflion of his property 
 at the expence of the earl's life ; and, if fo, there can be 
 no room for confidering whether he has been guilty of an 
 excefs or not. It is plain, that he has felonioufly (bed the 
 blood of an innocent man, without any juft caufe, and mud 
 therefore be fubjected to that punifhment which the law has 
 inflicted upon the commiffion of fo barbarous and unnatural 
 a crime. 
 
 It was pleaded for the panel, in the loft place> that the law 
 made a diftin<Stion betwixt homicide committed upon preme- 
 ditated malice, and that which was committed upon fuddenty 
 or chaude melle ; that the latter could only be deemed a homi- 
 cidlum culpofum^ and not punifhable by death ; and that as it 
 could not be faid, that there -was any premeditated malice in 
 this cafe, but as the earl was killed upon a fudden quarrel, 
 in confequence of provocation given, that therefore the li- 
 bel fell to be reftri&ed to an arbitrary punimment ; and it 
 was faid, that the forefaid diflin&ion took place in the di- 
 vine law delivered by Mofes to the Ifraelites ; in the civil 
 law ; in the law of England ; and alfo in the law of 
 Scotland j and was accordingly likewife founded in the 
 practice of this court. 
 
 Before confidering the particular laws here appealed to, 
 the purfuefs muft beg leave, in general, to premife, that it 
 will be of no moment to the pannel how this point fta-nds 
 by the laws of other countries, if the diftindtion does not 
 hold in the law of Scotland. The queftions which have 
 hitherto been treated, viz. How far it is lawful to kill in de- 
 fence of life or goods, depend on principles which are founded 
 in human nature, and which being the fame all the world 
 over, the law with regard to them muft in a great meafurc 
 be the fame in every civilized ftate ; and therefore, in illuf- 
 trating the municipal laws of this, country in thefe particu- 
 lars, the laws of other wife and civilized ftates may with 
 great propriety be appealed to ; but as to the other queftion, 
 viz. What degree of punifliment ought to be inflicted upon 
 the commiffion of this or the other crime, there is no argu- 
 ing with the fame propriety from the law of one country to 
 
 N 2 that
 
 r 9* i 
 
 that of another. The intention of punifhment .is to curb 
 vice, that mankind in fociety may live in peace and quiet, 
 and he (Vcured both in their lives and properties. Different 
 rutif-ns are, fome more, and fume lefs, addicted to different 
 vices ; and therefore, in enacting puoifhments, the different 
 tempers and difpofnions of the people fall to be confidered. 
 
 Thus, among the Romans, theft was not punifhed capi- 
 tally. It was there thought to be a fufficient check to the 
 corniTiifllon of that crime to punifh th,? thief with the rejlitu- 
 tto qtiadrupli, in fur to tnanl: , in furio nee mani- 
 
 fejio ; and fuch was likeways the punifhment of theft by the 
 Jewifh law : But among modern nations this punifhment 
 has, been underflood as inadequate to the conmiffion of that 
 crime ; and fo in many cafes it is punifhed capitally. And 
 therefore, although other nations might not find it neceflary 
 to punifh homicide, without forethought felony, with the 
 pains of death, yet the prafervldum Scotorum ingemum might 
 render it very neceflary and expedient that homicide, com- 
 mitted on fuddemy, and in rixa, fhould be punilhed capitally 
 with us. 
 
 The purfuers at the fame time apprehend, that the dif- 
 tinlion here attempted to be eftablifhcd for the panne!, did 
 not take place either in the divine law, or in that of the 
 Romans, and does not obtain either in the law of England, 
 or, it is believed, in the law of any well-governed ftate. 
 It \vas formerly observed, that the chief intention of pu- 
 nifhment is to curb the depraved paffions of mankind ; 
 and although the perfon who calmly and deliberately medi- 
 tates the death of his neighbour, and puts the fame in exe- 
 cution, is guilty of a more heinous offence in the fight of 
 God, than he who in the heat of anger kills him fuddenly j 
 yet the, latter appears to be more dangerous to fociety than 
 the former. The moft wicked man mult ftartle at the thought 
 of a deliberate murder, and therefore it will be but feldom or 
 rarely committed ; and as the other happens much more fre- 
 quently, it becomes neceflary and expedient to inflict the 
 higheft punifhment upon the commifljon of it, that mankind 
 may thereby be deterred from falling into the crime, and 
 may be led to keep a ftricl: guard over themfelves, and curb 
 and confine their paffions within proper bounds. 
 
 In order to fhow that the above diftincStion did obtain in 
 the divine law, the counfel for thepannel did appeal to chap. 
 21. ver. 13. of Exodus, where it is faid, " And if a man 
 Ife not in wait, but God deliver him into his hand, then I 
 will appoint thee a place whither he fliall flee." And to chap. 
 35 of Numbers, ver. 22, 23, and 24, where it is faid, " If 
 he thruft him fuddenly, without enmiry, or have caft upon 
 
 him
 
 t 93 1 
 
 him any thing, without laying of waif, or with any {tone 
 wherewith a man may die, feeing him not, and caft it upon, 
 him, that he die, and was not his enemy, neither fought his 
 harm, then the congregation (hall judge between the flayer 
 and the revenger of blood, according to thefe judgments." 
 
 Bur, with all fubmiffion, the texts here appealed to do by 
 no means prove what is intended to be eftabliflied by them. 
 It is clear from the texts themfelves, that the manflayer was 
 only ir.titled to the benefit of the city of refuge, where the 
 (laughter was purely cafual, or by misfortune, without any 
 intention to kill. This is plainly the meaning of the words 
 in Exodus^ " if a man lie not in wait, but God deliver him 
 into his hands." T. ne ie words can with no propriety be ap- 
 plied to the cafe of homicide intentionally and wilfully com- 
 mitted, although the intention non antecedit congrejjum. 
 
 Indeed this matter is clearly explained in the forefaid 35th 
 chapter of Numbers, ver. 16, 17, and 18, compared with 
 ver. 21. In the three firft verfes it is faid, that he who fmites 
 with an inftrument of iron, or who fmites with throwing a 
 (lone, or with a hand-weapon of wood, wherewith a perfon 
 may die, and he die, he is a murderer, and the murderer fhal! 
 furely be put to death. But in ver. 21, it is faid, that " If 
 in emnity he fmite him with his Hand, that he die, he that 
 fmote him (hall furely be put to death ; for he is a murderer." 
 
 Your lorciftiips will here obferve, that, where the ftroke is 
 given with a weapon not deadly, and from which there was 
 no reafon to apprehend that death would eniue, previous en- 
 mity muft appear, in order to punifh the killer as a murderer; 
 but where the ftroke is given with a deadly weapon, and death 
 did enfue, there was no rieceffity to prove any previous enmi- 
 ty. The ftriking with a lethal weapon did not prefume an 
 intention to kill ; and the perfon killing, under thefe circum- 
 ftanceSj was to be held as a murderer ; and there was no ne- 
 ceffity to prove that the fame proceeded from premeditated 
 malice. An intention to kill is to be prefumed j and it wa' 
 fufficient that the intention antecedit itlum^ licet non con" 
 greffum. 
 
 It is from thence plain, that {laughter, upon fuddenty, even 
 without forethought or previous enmity, was capital by the 
 law of Mofe'Sj if the wound was given with a lethal weapon ; 
 and that the cafes mentioned in the forefaid texts do plainly 
 allude to homicide, merely cafual ; and which rs clearly fo 
 exprefled in the forefaid texts of Exodus, and alfo in the other 
 text in Numbers, where the cafe is ftated of killing by throw- 
 ing a ftone, feeing him not, which can never apply to the 
 cafe of intentional homicide. 
 
 And that the benefit of thofe cities of refuge was only given 
 
 4' t
 
 f 94 ) 
 
 ft) thofe who committed homicide merely cafual, or by mis- 
 fortune, without any intention to kill, is (till more clear from 
 Deuteronomy, cap. 19. ver. 4 and 5. " And this is the 
 cafe of the flayer which fhall flee thither, that he may live; 
 whofo killeth his neighbour ignorantly, whom he hated not 
 in time paft ; as when a man goeth into the wood with his 
 neighbour to hew wood ; and his hand fetcbeth a ftroke with 
 the ax to cut down the tree, and the head flippeth from the 
 helve, and lighteth upon his neighbour that he die, he fhall 
 flee into one of thefe cities, and live." 
 
 The example here given, for illuftratmg the text, proves, 
 in the cleareft manne'r, that thofe only who committed homi- 
 cide purely cafual, were entitled to the benefit of the cities of 
 refuge. 
 
 Nor is it of any moment, what was obferved on the othef 
 fide, that it was abfurd to fuppofe that an innocent perfon 
 Ihould be obliged to fly into a city of refuge. The reafort 
 thereof is explained in the fubfequent verfe; "Left the 
 avenger of the blood purfue the flayer while his heart is hot, 
 and overtake him." The Jews were prone to revenge, and, 
 therefore, the fan&ity of thefe cities of refuge was confidered 
 as necefTary for protecting the perfon who had fhed blood from 
 the refentment of the friends of the perfon killed. 
 
 The pannel, in the next place, endeavoured to fhow, that* 
 in the civil law, a diftinclion was eftablifhed betwixt homi- 
 cide flowing from premeditated malice, and that committed 
 on fuddenty, and that the latter was not punifhed capitally ; 
 but the purfuers, after making all the fearches they can into 
 that law, cannot difcpver that there is the leaft foundation 
 for the diftinclion ; on the contrary, whoever committed ho- 
 micide dolo mala, whether deliberately, and upon forethought, 
 or of fuddenty, was to be punifhed lege Cornelia de ficarih. 
 Dolus malus is, by the law of every country undoubtedly eflen- 
 tial to conftitute the crime of murder ; but it was fufficient, 
 by the Roman law, as well as by the laws of every other 
 country known to the purfuers, that the intention to kill, 
 antecedit ifium, licet non congrejjiim. 
 
 Intention, or the adt of the mind, can only be known from 
 external circumftances ; and fo the general rule laid dowri 
 in the civil law was, that if the perfon killing (truck with' a 
 mortal weapon, and death followed, he was juftly held as a 
 murderer. 4< Si gladium ftrinxerit, et in eo percuflerit, indir- 
 bitate occidendi animo id eum admififle, /. i. T>- 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 diftin<tion already ftated betwixt murder 
 committed upon forethought, and homicide committed upon 
 fuddenty, took place in the law of Scotland ; that the for- 
 mer only was capital, but that the latter, as being only homi- 
 cidlum culpofum, was to be punifhed arbitrarily ; and that, as 
 this diftindtion took place in the old law of Scotland, fo it 
 was not taken away by the ftatute 1661. 
 
 But the purfuers humbly apprehend, that this diftintion 
 is not founded in the law of Scotland ; that, at no period, 
 wilful homicide, though committed without forethought, fe- 
 lony, and premeditation, was punifhed arbitrarily ; and that 
 if ever the law flood otherwife, it was clearly fo far altered 
 by the ftatute 1661. 
 
 With refpet to the firft point, it appears from fundry of 
 our old ftatutes, that wilful and intentional homicide was at 
 all times punifhed with death, without diftindtion. By chap. 
 3. ijljtatute of Robert I. intituled, ' Men condemned to the 
 death fiiould not be redeemed," it is ftatute and ordained, 
 " Gif any man, in any time coming or bygane, what con- 
 dition or eftate he be, is convict or attainted of Slaughter, 
 reif, or of any other crime touching life and limb, common 
 juftice fhall be done upon him, without any ranfom, faving 
 the king's power, and alfo the liberties, fpecially given and 
 granted by the king that now is, and his predeceflbrs, to the 
 kirk and kirkmen, and other lords." 
 
 Kere daughter in general is mentioned, and juflice was to 
 be done upon the perfon can v idled or attainted of it ; and 
 the punifhment by the title was plainly death, fo that by the 
 law of Scotland, flaughter in general was capital, without 
 diftindlion. 
 
 By chap. 43. of thejlatute of king Robert III. it is ftatute, 
 " That nae man ufe any deftru&ion, hairfhips, burning, 
 reif, Daughter in time to come, under the pain of tinfel of 
 .life and goods moveable." 
 
 Here the pain of death is likewife declared to be the pu- 
 nifhment of {laughter in general, without diftinftion. And 
 in the immediate fubfequent chapter, the fheriff was to take 
 
 diligent 

 
 r 99 j 
 
 diligent inquifition of deftroyers of the country, or fuch as 
 had deftroyed the king's lieges with heirchippis, daughter, ffV. 
 and was to take bail from them, if arrefted, to compear at the 
 nixt juftice Aire ; and, if bail was not given, the (heriff was 
 to put him to the knowledge of an aflize; and gif he be taint 
 with the aflize for fick an treflpafTon, he {hall be condemned 
 to death. This can only relate to man-flaughter, and not 
 to murder, upon forethought felony, which was one of the 
 pleas of the crown to be tried only before the king's jufticiar, 
 whereas (laughter might be tried by the {heriff, where there 
 was a certain accufer, as appears from book i. of the Majejly^ 
 cap. I. 8. / 
 
 In like manner, the cap. 2d. of the ftatutes of Alexander 
 II. does plainly prefuppofe, that flaughter, without diftinc- 
 tion, was capital ; and, accordingly, Skene, in his Treatife 
 of Crimes, tit. 2. cap. 6. a book of the higheft authority, 
 Jays it down, " That manflaughter, committed voluntarily, 
 be forethought felony, or cafually by ckaude melle, generally 
 is punifhed by death, and confifcation of the moveable goods 
 pertaining to the trefpafler ; fo that the girth or fan&uary is 
 nae refuge to him who commits flaughter be forethought fe- 
 lony ; but he fhould be delivered to the judge-ordinary, to 
 underlie the law." 
 
 Here it is plainly laid down, that manflaughter, whether 
 committed by forethought felony, or on fuddenty, is pu- 
 nifhed with the pains of death ; with this difference, that 
 the girth or fan&uary was no refuge to him who commits 
 flaughter by forethought felony, but he was to be delivered 
 to the judge-ordinary to underlie the law ; which is exprefly 
 enjoined by act 23, parliament 4 James V. whereby matters 
 of the girth are ordained to deliver up to juftice, to underlie 
 the law for their crime, fuch perfons as are guilty of murder, 
 upon forethought felony. 
 
 It was upon this ftatute, and others to the fame purpofe, 
 that the counfel for the pannel endeavoured to eftablifli a dif- 
 tindion betwixt manflaughter upon forethought felony, and 
 fuch as was committed on fuddenty. They contended, 
 That, as the mafters of the girth were directed and ordained 
 to deliver up to juftice fuch only as were guilty of murder 
 upon forethought felony, that therefore homicide, committed 
 on fuddenty, was not capital. 
 
 But the purfuers do numbly beg leave to maintain, that 
 the conclusion does by no means follow from the premifles ; 
 for although murder, in every degree, does juftly merit the 
 pains of death, yet murder, as well as other crimes, does 
 admit of different degrees of aggravation ; and indeed there 
 can be no doubt r that the man who cooly aad deliberately 
 
 O 2 medi-
 
 meditates the death of his neighbour, and executes his pur* 
 pofe accordingly, is more criminal in the fight of God, than 
 the pcrfon who, in a fudden ftart of paffion, puts his neigh- 
 bour to death; and, therefore, all that is proved by thofe 
 ftatutes is no more than this, that thofe who were guilty of 
 murder, fo aggravated, were not entitled to the benefit of the 
 fan&uary, but the matters and keepers thereof were bound to 
 deliver them up to jutiice ; whereas thofe who were only 
 guilty of murder upon fuddenty were entitled to the benefit 
 of the fanctuary, and could not be delivered up. 
 
 And it will bv no means from thence follow, that, becaufe 
 the girth or fanctuary was a protection to them from punifh- 
 ment, that therefore, if they did not refort to the fanctuary, 
 they were not punifhable ; or that the pains of death were 
 not to be inflicted, in cafe they were apprehended and con- 
 victed, before retiring to the fanftuary. The counfel for 
 the panel adduced no authority tp prove this ; and yet, un- 
 lefs they prove this, they plainly prove nothing. There is 
 110 inconfiftency in fuppofing that a crime (hould be capital, 
 and at the fame lime there Ihould be a fancluary which af- 
 forded the guilty perfon a protection againft punifliment j 
 and, indeed, it clearly appears from cap. 6. of the ftatutt's 
 of Alexander II. That criminals who reforted to, and toolc 
 fanctuary in, churches, had protection, though their crimes 
 were capital. It is there ftatute, " Anent thieves and riefers, 
 who flys to haly kirk, that, gif any of them, moved with 
 repentance, confefles there that he has heavily finned, and, 
 for the love of God, is come to the houfe of God for fafety 
 of himfelf, he {hall have peace in this manner, that is, that 
 Tntfiallnot tyne life nor limb, but what he hath taken frae any 
 man he {hall reftore fae meikle to him, and {hall fatisfy the 
 king, according to the law of the country, and fua {hall 
 fwear, upon the holy evangil, that thereafter he fall never 
 commit reif nor theft." And, in the laft paragraph of that 
 chapter, it is faid, " Mairover, man-flayers, traitors to their 
 mafters, and they who are challenged of murder or treafon, 
 fall be lawfully accufed thereanent, and gif they, in manner 
 fortfaid, fly to the kirk, the law aforefaid fall be kept and 
 obferved to them." 
 
 It is from this ftatute plain, that the girth or fan&uary 
 was a protection to criminals who had committed the moft 
 atrocious crimes, and fuch which were clearly punifhed ca- 
 pitally. There can be no doubt, that thofe guilty of murder 
 or treafon were, at the period of the forefaid ftatute, liable to 
 be punifhed capitally, if they did not fly to holy kirks ; and 
 therefore, although by fublequent ftatutes,. thofe guilty of 
 aggravated murder, viz. fuch as was committed upon fore- 
 thought
 
 C ioi ] 
 
 thought felony, were deprived of the benefit of the fanfluary 
 yet all other crimes remained upon their former footing. 
 What were capital before, remained capital ftill, and fuch, 
 as were guilty thereof, if they d<d not fly to the fanduary, 
 could be capitally punifhed. And accordingly Sir George 
 Mackenzie, in his obfervations upon acl: 90, parl. 6 James I. 
 exprefly lays it down, " That murder, though committed 
 without forethought felony, is punifhable by death, except 
 it was either cafual or in felf-defence, and then it is called 
 properly homicide, or manflaughter." 
 
 But it is unneceflary to make any further enquiry how the 
 law of Scotland ftood in this particular in ancient times, be- 
 caufe, with fubmiffion, it cannot admit of a doubt, that 
 fince the 1661, the committers of wilful homicide are liable 
 to a capital punifhment, without diftindYion, whether it was 
 committed upon forethought or upon fuddenty. 
 
 The aft 22 parl. 1661, " For removing of all queftion 
 and doubt that may arife hereafter in criminal purfuits for 
 daughter, ftatutes and ordains, that the cafes of homicide 
 after following, viz. cafual homicide, homicide on lawful 
 defence, and homicide committed upon thieves and robbers, 
 breaking houfes in the night, 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 aflift 
 and defend the rebels, and mafterful depredators by arms ; 
 and by force oppofe the purfuit and apprehending of them, 
 which {hall happen to fall out in time coming, nor any of 
 them fhali not be puniflied by death ; and that notwithftand- 
 ing of any laws and afts of parliaments, or any pratique 
 made heretofore, or obferved in pumfhing of daughter. But 
 that the man-flayer, in any of the cafes aforefaid, be aflbi!- 
 zied from any criminal purfuit purfued againft hkn, for his 
 life for the faid (laughter, before any judge criminal within 
 this kingdom j providing always, that in the cafe of homi- 
 cide cafual, and of homicide in defence, notwithftanding 
 that the flayer is by this aft free from capital punifhment, 
 yet it {hall be leifome to the criminal judge, with advice of 
 the council, to fine him in his means, to the ufe of the 
 defunct's wife and bairns, or neareft of kin, or to imprifon 
 him." 
 
 One of the pannel's learned counfel was pleafed to obferve, 
 that the word cafual^ which occurs in this ftatute was not an 
 Englifh word, that it was to be found in noEnglifh dictionary, 
 and by giving it a Latin derivation, he endeavoured to (how, 
 that it was broad enough to comprehend the cafe of wilful ho- 
 micide, committed without forethought felony. 
 
 The
 
 C 102 ] 
 
 The nurfuers fhall not trouble your lordfhips with follow- 
 ing the pannel's learned counfel in his many ingenious critt- 
 cifms. It is fufficient to fay, that the word cafual is well 
 known in the language of the law of Scotland, and muft 
 have been underftood by the legiflature when ufed in the 
 aforefaid ftatute ; and that it is equally well known in the 
 language of our neighbouring country, appears from moft 
 of the Englifh dictionaries, and particularly Johnfon's ; 
 and, therefore, the criticisms built upon this capital miftake 
 muft all fall to the ground. The purfuers fhal] not enter into 
 a critical examination of the derivation of the word cafual. It 
 is a word perfectly well underftood; and cafual homicide, in 
 their apprehenfion, carries along with it a very different 
 meaning from homicide wilfully and felonioufly committed, 
 though not proceeding from malice long premeditated. 
 
 It was further obferved upon this aft, with regard to cafual 
 murder, that having been firft pafled during the ufurpation, 
 in thf parliament 1649, an ^ an ther aft: having been made 
 the fame day, declaring that there {hould be no remiflions in 
 capital crimes, it could not be fuppofed that murder upon 
 fuddentv, without premeditated malice, was underftood to be 
 a capital crime, and unpardonable ; from which it was in- 
 ferred, that when the fame ftatute was re-enafted in the year 
 1661, it could not be intended that this crime fhould be ca- 
 pital. But thi? argument is extremely inconc'ufive ; for al- 
 though it was thought proper during the ufurpation, to pafs 
 an aft declaring capital crimes unpardonable, yet it was not 
 thereby intended to alter the general nature of crimes, or to 
 make thofe not capital which formerly were fo. The aft ex- 
 tends to all capital crimes whatever, many of which were at- 
 tenHed with a much lefs degree of guilt than wilful murder, 
 tho' committed upon fuddenty ; for example, theft, robbery, 
 hnmefucken, &c. So that the argument goes a great way too 
 far, in fiippofing th?.t no crime lefs than murder, upon fore- 
 thought felony, was underftood to be capital snd unpardon- 
 able : .and befides, as the aft here founded on was not renew- 
 ed after the Reftoration, it is now cut of the queftion. 
 
 It was further faid for the pannel, that though, in the cafes 
 mentioned in the ftatute, the !?w ordained homicide not to 
 be capi'al, yet it is neither faid, nor fuppofed that the former 
 law, wnereby pannels were intitled to plead againft a capital 
 punifhment, was thereby abrogated ; and that fundry cafes 
 might be ftated which did not fall direclly under the exceptions 
 mentioned in the ftatute, and where yet it couid not be difput- 
 e.d that a capital punifhment would not fall to be 
 
 The
 
 The purfuers have no occafion in this cafe to plead, that 
 perfons guilty of wilful homicide committed without fore- 
 thought felony, were by this ftatute deprived of a de. fence 
 which was competent to them before the ftatute was made$ 
 they do apprehend that fuch homicide was punilhed capitally 
 before the ftatute, as well as after it. At the fame time, if the 
 law had flood otherways, it canot well be doubted, that upon 
 a found conftru<5tion of the ftatute, fuch homicide' would 
 thereafter have fallen to be puniihed capitally ; for when the 
 declared intention of the ftatute was to remove all doubts and 
 queftions that might thereafter arife concerning purfuits for 
 jlaughter ; and when in removing thefe doubts, it makes parti- 
 cular mention of homicide in lawful defence, and homicide 
 committed upon thieves and robbers, or in the time of mafter- 
 ful depredations, &V. as not liable to a capital punifliment, it 
 is, with fubm'iffion, impoflible to fuppofe, that if the legifla- 
 ture had meant and intended that wilful and intentional ho- 
 micide committed on fuddenty was not to be puniflied capi- 
 tally, it would not have been particularly mentioned. It can 
 .never be imagined, that when the legiflature, for the purpofe 
 of removing all doubts and queftions, was anxioufly enume- 
 rating a variety of cafes where death was not to be inflict- 
 ed, that they would have omitted a cafe which the pannel 
 himfejf muft admit was a hundred times more doubtful than 
 any of thefe particularly mentioned. It would be, with fub- 
 miffion, abfurd to fuppofe, that the legiflature would have en- 
 acted in the cafes that were more clear, and have left the'moft 
 difficult of them in the dark ; as furely the greateft advocates 
 for flaughter on fuddenty, muft admit, that it is much more 
 culpable than any of the other fpecies of homicide mentioned 
 in the ftatute. 
 
 The purfuers fhall not maintain, that the ftatute is to re- 
 ceive to judaical a con(truHon, as that ejvery other homicide 
 which does not fall dN-eclly within the ftricl letter of the fta- 
 tute, was to be punifhed capitally. Other cafes might, no 
 .doubt, be figured, which, though they do not fall within the 
 words, do fall within the fpirit of the ftatute. The legifla- 
 ture has therein made an enumeration of fundry -particu- 
 lars, which are fufiicient to explain the nature of the cafes 
 which do not fall to be capitally punifiied ; and, as wilful 
 ..and intentional homicide, though committed on fuddenty, 
 is, in its nature, totally different from all and each of the 
 cafes mentioned in the ftatute, the purfucrs may fairly con- 
 clude, that upon no juft conftru61ion of the ftatute, this cafe 
 can be brought under either the words or fpirit of it, 
 
 The
 
 I 104, ] 
 
 The purfuers fhall now proceed to (late a few cafes, in or- 
 der to (how your lordfliips, that the law of Scotland has been 
 underftood to be agreeable to what has been maintained on 
 their part, and that before and after the ftatute of 1661. 
 
 In the cafe of Bruce contra Marfhall, the 3d of April 1644, 
 (laughter was libelled, and he was condemned upon his own 
 judicial confeffion, from which it appears tbat he was fo far 
 from having any forethought, that he fuffered not only the 
 greateft provocation in words, but was even beat with hands 
 *nd feet by the defundt, while he was on the ground ; but, at 
 laft, getting up, and (as the confeflion bears) being overcome 
 with paffion, he drew a knife, and ftruck at him in two fe- 
 veral places of his body, whereby he died ; and upon this 
 confeflion, where there was a fuddenty, provocation, and 
 paffion, he was brought in as guilty, and condemned to 
 be beheaded. 
 
 In the cafe of Murray contra Gray, loth June 1678, the 
 lords found the libel relevant, and that there was no neceffity 
 of any diftindt probation for proving precogitated malice, which 
 clearly Ihews, that homicide, though not upon forethought, 
 was capital. 
 
 In the cafe of Aird, who was mcM&ed in the year 1693, for 
 the murder of Agnes Bain, having given her fome ftrokes on 
 the fide and belly with his foot, by which fhe fell into faint- 
 ing-fits, and immediately died. The defence was great pro- 
 vocation and cafual homicide. Provocation, in as far as (he 
 threw a chamber-pot in his face, and when he gave her 
 hard words, (he and her neighbour fell upon him and beat 
 him, upon which he gave her the ftrokes above-mentioned ; 
 and in that trial it was argued, that there was no animus occi- 
 dendi; no previous malice nor mortal weapon; and the ar- 
 guments urged in defence of the prefent pannel, were pleaded 
 tor the pannel in that cafe : neverthelefs, the lords found the 
 libel revelant, repelled the defences, and, upon the proof, he 
 was fentenced to die. 
 
 In the year 1695, George Gumming, writer in Edinburgh, 
 was indicated .for the crime of murder or manflaughter of Pa- 
 trick Falconer. The defence now offered for the pannel, up- 
 on the diftin&ion between forethought and chaude melle, 
 was there pleaded ; neverthelefs the libel was found relevant, 
 and the jury returned a verdict guilty ofman-jlaughter. Upon 
 which he was condemned to die. 
 
 In the cafe of Hamilton of Green, 30th June 1716. The 
 
 pannel offered to prove, that he was accidentally at the houfe 
 
 of Thomas Arklej of whofe murder he was accufed, upon 
 
 2 . the
 
 C 105 ] 
 
 the day libelled, with fome of his acquaintances, and had 
 no deadly weapon along with him : that he became intoxi- 
 cated to a great degree, and having left the houfe, and re- 
 turned to afk for the flip or cover of the (heath of a fword, 
 the defun& gave him moft indecent, injurious, and fcurrilous 
 language ; and, perfifting in it, the pannel pufhed, or (truck 
 at him with his fword, having the fcabbard thereon, whjch 
 he had reafon to believe had a crampet upon it ; and, be- 
 ing ftill more and more provoked, by repeated injurious 
 words, to protect himfelf from farther infolence, which he 
 had reafon to look for, the pannel ftill remaining on horfeback, 
 the defunct ru(hed himfelf upon the fword : and this circum- 
 ftantiate fa& was offered to be proved ; neverthelefs, the libel 
 was found relevant, and the pannel's whole defences repelled ; 
 and, upon, the proof, he was fentenced to have his head fe- 
 vered from his body, and was accordingly beheaded. 
 
 In the cafe of Thomas Rofs and Jeffrey Roberts, 20th 
 July 1716, it was urged for the pannels, That, being recruits, 
 lately come from England to Scotland, and not knowing the 
 way, they afked the defunct the road to Edinburgh, who 
 refufing to fhow it, and one of the pannels expoftulating with 
 him, why be treated a (Iranger fo, that came to ferve the 
 king? he uttered very difrefpe&ful words, with refpedl to 
 his majefty ; and one of the pannels having called him villain, 
 for fuch opprobrious expreffions, he came up to Rofs, and, 
 with his fift, gave him a blow on the face, and then pulled 
 him down to the ground, and beat him with a great ftick, to 
 the imminent danger of bis life^ faying, that he (hould jnever go 
 alive out of his hands ; and Roberts having come to his af 
 fiftance, and refcued him a little, Rofs, the pannel, gave the 
 defunt a wound with a knife, whereof he died. Rofs plead- 
 ed, There neither was, nor could be, forethought felony or 
 premeditated malice againft a perfon wbom he had never feen 
 before : that it was committed upon fuddenty : that he had 
 the higheft provocation, both verbal and real ; neverthelefs, 
 by the interlocutor, Rofs, the pannel, his giving the wound, 
 was found relevant to infer the pain of death. And the de- 
 fence from provocation by words, and receiving a blow on the 
 face, being pulled down to the ground, and beat, with a great 
 ftick, to the danger ef his life, jointly fuftained relevant to re- 
 ftricl: the libel to an arbitrary punifliment, was found to be 
 elided by the reply ; that, at the time of giving the wound to 
 the defundl, the defunct's hands were held by Jeffrey Roberts, 
 the other pannel. From this it is evident, that (laughter, upon 
 fuddenty, and by a psrfoa who had received the greateft ver-
 
 r 
 
 bal, and even real injuries, is, by that interlocutor, found t<J 
 be capital. 
 
 Many ether cafes might be mentioned ; but thefe are fuf- 
 ficient to fhow, that wilful homicide^ by the law of Scot- 
 land, has been always underftocd to be punifhable with 
 the pains of death ; and that the pains of death have uni- 
 formly b^en inflicted upon that crime ; and that, whether it 
 was committed upon fuddenty, or upon forethought felony. 
 
 Ceruii; cafes were mentioned en behalf cf the pannel, in or- 
 d*i to eftablifh a diftin&ion betwixt homicide, committed 
 on fuddenty, and upon forethought felony ; and to prove, 
 that the latter only, and not the firft, does, by the law of 
 Scotland, admit of a capital punifhment. But, when thefe 
 cafes are duly confidered, the purfuers are humbly perfuaded 
 your lordfhips will be of opinion, that they do by no means 
 prove what is intended to be eftablifhed by them. 
 
 The firft cafe appealed to, was that of Elizabeth Elphin- 
 fton, and his majefty's advocate, againft captain William 
 Bruce of Auchinbowie in the year 1709. Captain Bruce was 
 there indided for the murder of Charles Elphinfton of Airth. 
 They had been together at my lord Forrefter's houfe at Tor- 
 woodhead, where they appeared to be in friendfliip toge- 
 ther ; bur, on their way home, a quarrel arofe betwixt them, 
 and Mr. ElpJiinfton was killed. Sundry defences were ftated 
 for the pannel ; and, among others, he pleaded her majefty's 
 ail of indemnity, in bar of the profecution. To which it 
 was anfwered, That wilful murder was excepted from the 
 Al of Indemnity, and therefore it could not avail the pannel. 
 
 To this it was replied, That the exception in the Ac-t of 
 Indemnity did only refpeft murder done upon forethought 
 and premeditated defign ; and that, although the indictment 
 did libel in general terms forethought and premeditation, yet 
 as no circumftances were condefcended upon, from whence 
 the fame could be inferred, it could only be confidered as 
 daughter committed on fuddenty, which did not fall under 
 the exception of the A61 of Indemnity. And the court, up- 
 on advifing mutual informations, *' fuftained the defence of 
 her Majefty's moft gracious Act of Indemnity, proponed for 
 the faid pannel, relevant to elide the faid libel, and therefore 
 deferred the diet thereof againft him, ftmpliciter difmifled him 
 from the bar, and difcharged him to be farther troubled 
 for the faid crime in time coming." 
 
 It is fubmitted, if this cafe is at all to the purpofe. It 
 does indeed prove that your lordlhip's predeceflbrs were of 
 opinion, that the exception in the Aft of Indemnity did only 
 
 I com-
 
 [ io; 3 
 
 .comprehend the cafe of murder upon premeditated malica i 
 and that, in the cafe libelled, there was not fufficitnt cir- 
 cumltances condefcended upon to bring the crime charged 
 under that denomination ; but it will by no means from 
 thence follow, that the court was In that cafe of opinion, 
 that, laying afide the At of Indemr.ity, the crime charged 
 could not be puniftied capitally. It has been already obferv- 
 ed, that although murder, in every degree, deferves the 
 pains of death, that yet the crime admits of different de- 
 grees of aggravation j and therefore the legiflature might, 
 with great propriety, pardon murders committed upon a hid- 
 den quarrel, and, at the fame time, not pardon fuch as were 
 cooly and deliberately meditaied. 
 
 The nrxt cafe mentioned on the part of the pannel, was 
 that of William Hunt, dragoon in Sir Richard Temple's re- 
 giment, who was indicted for the murder of Henry Macmil- 
 Jan, flelher in D-ilkeith, in the year 1711. It was in that cafe 
 alledged, in defence for the pannel, that a mob had arofe in 
 the town of Dallceith, which was headed by the defunct, 
 and attacked fome of the foldiers who were quartered in that 
 town, and proceeded fo far as to beat them, throw them 
 down in the llreet, trample them upon the ground, and 
 otherwife maltreat them in a barbarous ami cruel manner, to 
 the effufion of their blood ; that tbe pannel having been at 
 that time upon the guard, he was called out by the f-rjeant 
 who commanded the guard to quell the mob, and relieve the 
 perfons who were fo attacked and abufed ; and that it was 
 in this tuilzie that tbe defuncl, who headed the rabble, was 
 killed ; and from thence it was: argued on behalf of the pan- 
 nel, that as he,' at the time libelled, was one of the guard 
 upon duty, and was ordered out under arms, to quell a 
 mob, and relieve his fellow- foldiers, who were in no fmall 
 danger, from the fury and injolence of the rabble j that whnt 
 blows he gave on that occafion were lawfully given. 2/^, It 
 was alledged, that what was done was in neceflary defence, 
 either of himfclf, or of the other dragoons who had been thus 
 attacked ; and that, fuppoling he had been guilty of any ex- 
 xrefs, he could only be fubjec-ied to an arbitrary puniftvnent ; 
 and, feparailrr.^ ir was pleaded, that as the defunit was killed 
 in rixa, whereof he was himfelf the author, the pannel cculd 
 not be fubjedted to the pains of death, the more efpeciaUy, 
 as it appeared that the pannel could have no animus ttgidtndti 
 for that, notwkhftandjng he was armed both with a fw/ord 
 and a mufquer, he -did not ufe his mufqtiet, in the manner 
 jhat was moft certain to kill, but only itruck with ti>e 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 <afe if the pannel, acting in defence of him- 
 felf and his fellow-foldiers, fhould fufter the pains of death, 
 becaufe ,he killed the perfon who headed the mob, the more 
 efpecially, when it does appear from the cirr urnftances of the 
 cafe, that he had no intention to kill. He.omy gave a ftruke 
 with the but-end of his mukjuet, which, though it no doubt 
 
 might
 
 C 109 3 
 
 might kill, yet it was the weapon the leaft lethal of any he 
 was then poflefled of. If he had intended to kill, he infallib- 
 ly would either have fired with his mufquet, or ufed the 
 (word which he had at his fide. 
 
 The next cafe mentioned upon the part of the pannel, was 
 that of Peter Maclean, in the 23d January 1710, indi&ed 
 for the murder of James Ewing. In which cafe the court 
 pronounced the following judgment : " Find the indictment 
 relevant to infer the pains of death, and fuitain the defence 
 proponed for the pannel, in thefe terms, viz. that the defunct 
 quarreled the pannel under the name of rafcal, how he durft 
 carry a fowling-piece, and that, if the prince had hfs own, he 
 durft not fo do ; and adding thefe words, that her Majefty was 
 but a whore, and thereupon aflaulted the pannel for taking 
 the carabine from him, relevant to reftricl: the libel to an ar- 
 itrary punifhment." 
 
 Upon this cafe it is obfervable, that although the indict- 
 ment does not libel premeditated malice, nor condefcend upon 
 a fingle circumftance from which the fame could be inferred, 
 (as indeed the pannel was not fo much as of the defundVs ac- 
 quaintance) yet the libel was found relevant to infer the pains 
 of death ; and therefore the purfuers apprehend, that it is tru- 
 ly a judgment in favour of the do&rine maintained upon their 
 part. 
 
 And as to the defence which was there fuftained relevant 
 to reftridl the libel to an arbitrary puniihment ; it is founded 
 upon very peculiar circumftances, and cannot well be drawn 
 into a precedent for determining other cafes, far lefs for de- 
 termining a very general and very important point of law. 
 
 At the fame time, very ftrong reafons did there concur for 
 the reftri&ion : for, befides the high verbal provocation he re- 
 ceived, an alTault was truly made upon him, in order to rob 
 him of his mufquet. As he did not know the defunct, he had 
 reafon to apprehend, that the attack was made with a felonious 
 intention, and confequently intitled to refift it; and, he was 
 particularly called upon in duty, as a foldier, not to part with 
 her Majefty's arms, with which he was intrufted ; and, it ap- 
 pears, that when be fired, it proceeded from real apprehen- 
 fions of danger ; for he fliowed an unwillingnefs to kill, hav- 
 ing firft endeavoured to defend himfeif, by clubbing his muf- 
 quet. 
 
 The next cafe which was mentioned for the pannel, was the 
 noted cafe of Finhaven.. But, in what fhape the pannel can 
 avail himfeif of it. is to the purfuers inconceivable. The cir- 
 cumltar.ces of that cafe are well known to all your lordfhips, 
 
 and
 
 C ii 3 
 
 and therefore need not be particularly ftated. The interlocu- 
 tor of the court, upon advifing very learned and elaborate in- 
 formations, is in thefe words : " Find, that the pannel, at the 
 time and place libelled, having, by premeditation, anJ fore- 
 thought felony, with a fword, or other mortal weapon, wound- 
 ed the deceafed Charles, earl of Strathmore, of which wound, 
 he, the faid earl, foon thereafter died, or that he, the pannel, 
 was art and part thereof, relevant to infer the pains of law ; 
 but allow the pannel to prove all fads and circumftances he 
 can, for taking off the aggravating circumftances of fore- 
 thought and premeditation: as allo, find, that he, the faid 
 pannel, time and place forefaid, having with a fword, or other 
 mortal weapon, wounded the faid deceafed earl, of which 
 wound his lordfliip foon died, or that he, the pannel, was art 
 and part thereof, feparatim relevant to infer the pains of law, 
 and repel the defences proponed for the pannel." 
 
 This, in the purfuer's apprehenfion, is a clear decifion 
 againft the pannel, as to the point now in difpute. Notwith- 
 ftanding that all the arguments which are now urged on be- 
 half of the pannel, were there pleaded with great ingenuity ; 
 yet the defences were repelled, and the pannel's killing the de- 
 ceafed earl, with a fword, or other mortal weapon, was, in- 
 dependent of premeditation and forethought felony, found 
 relevant to infer the pains of law, which clearly cuts down 
 the diftindion now endeavoured to be eftabliflied. 
 
 The laftcafe which was mentioned on this point, in behalf 
 of the pannel, was that of lieutenant Robertfon, in the year 
 1758, indicted for the murder of lieutenant Robert Ewing. 
 But the purfuers are at a lofs to difcover for what purpofe that 
 cafe is mentioned. The defence which was pleaded in that 
 cafe wasfelf-dtfmce, and which, indeed, was very ftrongly 
 qualified j and the interlocutor pronounced by the court wa 
 in thefe words : ' Find the indictment relevant to infer the 
 pains of law, but allow the pannel a proof of all fads and 
 circumftances that may tend to his exculpation, or alleviation 
 of his guilt." 
 
 This interlocutor was very properly adapted to the cafe, 
 without fuppofing any diftindion betwixt flaughier on fore- 
 thought felony, and on fuddenty. If the pannel proved his 
 defence to its full extent, it was fufficient to exculpate ; and 
 although he (hould have failed in proving, that lieutenant 
 Ewing's dea'h was abfolutely neceflary to preferve his own 
 life, yet if he proved that he was in pericuh vitte conjlititius, 
 this might be relevant to alleviate. 
 
 Upon
 
 C 
 
 Upon the whole, the purfuers are humbly perfuaded, that 
 your lordfliips will be of opinion, that there is no relevancy 
 in any of the defences proponed for the pannel, except in fo 
 far as he alledges that the earl was killed by accident, and 
 not intentionally j and therefore, that your lordfhips, quoad 
 ultra, will repel the pannel's defences, find the libel relevant, 
 and remit the pannel, with the indictment, as found relevant, 
 to the knowledge of an affize. 
 
 In refpefi whereof, &c. 
 
 RO. MACQUEEN.
 
 INFORMATION 
 
 FOR 
 
 MUNGO CAMPBELL, 
 
 Late OFFICER of EXCISE at SALTCOATS, 
 In a CRIMINAL PROSECUTION before the 
 
 HIGH COURT of JUSTICIARY 
 in SCOTLAND, 
 
 For the alledged Murder of the late 
 
 ALEXANDER EARL of EGLINTON: 
 ARCHIBALD, now EARL of EGLINTON, 
 
 AND 
 
 JAMES MONTGOMERY, Efq. 
 His MAJESTY'S Advocate, 
 
 PROSECUTORS.
 
 EXPLANATION. 
 
 i 
 
 The Line A, B, C, D, E, F, G, H, I, K, L, (hews the 
 way that Mr. Campbell and Mr. Brown went from Sah- 
 coats to the place at b, where they did meet with the late 
 Earl of Eglintoun, 
 
 ::::::::::::::::::: is a road inclofed on each fide. 
 
 a road inclofed on one fide. 
 : a road that is not enclofed. 
 
 a, the place where his Lordfhip left the coach. 
 
 b, the place where his Lord(hip found Mr. Campbell, and 
 is diftant from a 228 ells, and from the tide mark 36 ells. 
 
 c, the place where Mr. Campbell did fall, and is diftant from 
 b 120 ells. 
 
 e, is the place where Mr. Brown flood, when he heard the 
 report of Mr. Campbell's gun, and is diftant from c 432 
 eljs. 
 
 f, is the place where Mr. Campbell did feize a cart-load of 
 fpirits from Bartleymore. 
 
 d, is the new houfe of Ardroflan. 
 
 The ground at letter I, is high, commanding a view of the 
 fhore, particularly the fpots called Caftle-craigs, Horfe- 
 ifle, and foot of Montfod burn, to which fmuggiers refort. 
 
 Montfod burn is the march betwixt Lord Eglinton's grounds 
 and Do&or Hunter's, and runs towards the Hotfe ifie be- 
 twixt letters K, and L.
 
 LV of t/ic Reads /i\im Salfroals toLargs
 
 January ii t 177*. 
 
 INFORM ATI ON 
 
 FOR 
 
 M U N G O CAMPBELL, 
 
 late Officer of Excife at Saltcoats^ now Pri-< 
 foner in the Tolbooth .of Edinburgh^ Panel ; 
 
 AGAINST 
 
 T 
 
 ARCHIBALD EarlofEGLINTOUN, 
 
 AND 
 
 JAMES MONTGOMERY, Efq; 
 his MAJESTY'S Advocate, for his MAJESTY'S 
 Intereft, Profecutors. 
 
 TH E purpofe of this information is to fhow, that 
 the indictment is not relevant, or, in other words, 
 that the fafts charged in it are not fuffitient to 
 infer the conclufion. 
 
 In the argument upon this queftion, it mufl: be fup- 
 pofed, no doubt, that the fab fet forth in the indiclment 
 are true ; the panel, however, before entering upon the rea- 
 foning, thinks it his duty to premife a fhort account of him- 
 felf, his family and conduct, with a full and fair detail of the 
 circumftances of the unhappy accident that has brought him 
 to trial for his life. Such explanations, oh his part, are 
 proper and neceflary ; as they will open what will be the 
 nature of the exculpatory evidence, in cafe this indidlment 
 (hall go to proof; and as they will contradidt and confute 
 the injurious mifreprefentations with which, ever fincfe his 
 confinement, infinite pains have been taken to load him. 
 
 The panel was born at Air in 1712. He was one of . 
 twenty-four children. His father was Mungo Campbell, 
 late Provoft of Air ; a man much refpcited in his time, as a 
 
 A merchant
 
 r * ] 
 
 merchant and a ruagiftrate. He had likewife the advantage 
 of moft honourable birth, being defcende-d, both by father 
 and mother, of the antlent and noble families of Ceflhock 
 (now Marchmont) Loudon, and Argyle. 
 
 The panel's father traded to what was a very great extent 
 in thofe days ; but he was not fuccefsful. On one bottom 
 that perished at fea, he loft 30,000 rnerks, a great fum at 
 that time ; and he met with many other lofTes afterwards, 
 which, with the expence of maintaining a family uncom- 
 monly numerous, greatly reduced his fortune ; fo that he 
 died in very indifferent circumftance?, and his children were 
 difperfed among the feveral relations and friends of the 
 family. 
 
 The panel, who was an infant at his father's death, was 
 taken care of by his godfather, Cornet Mungo Campbell. 
 That gentleman died fome few years after the panel's fa- 
 ther, and had the kindnefs to bequeath the panel, by his 
 latter-will, 1000 merks, and to recommend him to the 
 protection of their common binfman, Mr. Campbell of Ne- 
 ther-place, who took him into his family, and educated 
 him, as he did his own fons, till he was 1 8 years of age. 
 
 The panel determined to go into the army, as he had 
 not money to carry on trade, or breed him to any of the 
 learned profeilions ; and an additional motive was, that he 
 had a coufin, Hugh Campbell, who had entered a cadet in 
 the regiment called the Scots Greys ; which regiment too 
 was at that time commanded by a gentleman who was the 
 panel's nameLke and diftant relation. On thefe accounts 
 the panel fondly hoped, that his good behaviour might at- 
 tain preferment ; but in this he was difappv.-inted; for twelve 
 long years did he ferve, and expofe himfef in the battle of 
 Dettingen, and other engagements, unrewarded. This was 
 the cafe too with feveral others, and particularly Henry 
 Lyon of the Strathmore family, and his coufin, Hugh 
 Campbell, who ferved 28 years in the fame regiment, with- 
 out being advanced ; which at laft made him leave it in dif- 
 guft, and go a volunteer to Carthagena, with the late Lord 
 Cathcart, where he was killed. The panel's difappoint- 
 ment was no doubt chiefly owing to certain circumftances, 
 which gentlemen who have been in the army will be at no 
 lofs to underftand j they know well that neither merit or 
 connections are always (ufficientto obtain preferment. Tht 
 panel was once, however, offered a Quarter-matter's place, 
 which was worth 300 1. Sterling, if he would advance ico 1. 
 for it. The panel had not the money himfelf, nor could hi 
 
 think
 
 . r s ] 
 
 think (fuch was his temper) of foiiciting a loan from ftrangerjf 
 or even blood-relations, if npt very near. He ru<i a fifter 
 who was married to a man of fubitance ; to her he applied 
 for the fum, but (he either could not, or would no:, advance 
 it; upon which tiie panel, difgufted and difapp< u.ted, ap- 
 plied for, and obtained his difcharge from the (ervice, which 
 is as follows : 
 
 " By Major Alexander Forbes, of his Majefty's royal 
 *' regiment of ISortb-Britilh dragoons, commanded 
 *' by the honourable Lieutenant- General Sir James 
 c Campbell. 
 
 " Thefe are to certify, that the bearer, Mungo Campbell, 
 ' hath ferved in General Campbell's troop of the faid regi- 
 " ment for the fpace of twelve years, honeftly and faith- 
 ' fully ; but by earneft folicitation, and at his own requeft, 
 ** is hereby discharged from any further fervice, he having 
 " received his full pay, arrears of pay, and all juft demands, 
 " during his faid fervice, and four weeks pay to carry him 
 " home. Given under my hand and feal, at Ghent, this 
 '* fourth day of December 1744. 
 
 " AL. FORBES." 
 
 The panel ingrofles this difcharge, becaufe, among th 
 many afperfions that have been thrown upon him, this was 
 one, that he had been drummed out of the brave and ho- 
 nourable regiment of Scots Greys on account of grofs mif- 
 conduct and mifbehaviour. 
 
 Upon obtaining his difcharge the panel returned to Scot- 
 land in 1745* when he found his countrymen in arms a- 
 gainft one another. His chief and kinfman, the Earl of 
 Loudon, did him the honour to countenance him, and the 
 panel accompanied his lordfhip to the Highlands in that 
 year. After their return, Lord Loudon procured him a, 
 commifiion as an officer of excife, with a recommendation, 
 which the panel earneftly defired, to (ration him fomewhere 
 in Ayifhire, that he might be near his friends, his relations, 
 and his native fpot, to which he has all along felt the warm- 
 eft attachment. 
 
 Upon this duty he entered in 1746, and was firft ftation- 
 ed at Newmilis in Ayrfhire, from which he was removed 
 to Stewarton, from Stewarton to Irvine, and from Irvine 
 to Saltcoats ; all places in the {hire of Ayr, in which th 
 panel chofe to remain on account of his love to the natale 
 folum. This was one reafon why he was not raifed to a 
 higher ftation ; his incapacity to (elicit, perhaps, was atn- 
 A 2 other:
 
 4 3 
 
 other : But the panel would rather have chofe to remain in 
 the hum ; e i :: E :.cld in Ayrfhire, or near it, than to 
 
 ha -e rule to a highec, that would have obliged him to re- 
 fide e 1 ! .where. Beiides, His duty in Ayrfhire was attend- 
 ed witk vc-rv little triable and fatigue, to which he very 
 probably mtjjht have been expofed in acting as a fuperior 
 oflicer in another place, for which he was very unfit at that 
 time, having had his health impaired by the hard duty a- 
 brodd, which brought on a difo.-der in the lungs ; and hav- 
 ing had the misfortune to break a leg fome years af;er his 
 return home. 
 
 The character of an excife officer is by no means popular 
 in this country, yet the panel conducted h/imfelf fo as to be 
 well liked and countenanced by all ranks of people. To 
 the poor he cannot fay he was liberal, ( for he had but little 
 to give. His income was narrow; but as he had HO family, 
 till very lately, he had fomething t fpare. What he gave, 
 trifle as it was, he gave with compaction and kindnefs ; it 
 was gratefully received; and he muft do them and himfelf 
 the juftice to fay, that die, when he may, he will be re- 
 gretted by all the inhabitants of every village in which he 
 had occafion to reTide. As for the gentlemen of rank in the 
 different parts of the country where he liv.ed, he was by 
 birth their equal, by education not their inferior, by his 
 behaviour not their difgrace ; and he always kept their 
 company, and received from them all the marks of friend- 
 Ihip and efteem. He had licences to hunt upon their 
 "grounds, if he inclined, from moft of them; particularly 
 the Earl of Marchmont's commiffioner the Earl of London, 
 Mr. Alexander of Boydftone, Doctor Hunter of Montfod, 
 and many others, fome of which licences he preferved, and 
 they are produced: the reft can eafily be proved if necef- 
 fary. The written licences produced, not onlv allow him 
 to hunt, but authorife him to preferve the game, and pro- 
 fecute poachers. * Thefe licences he ufed but fome times, as 
 
 the 
 
 At Sornbey, this thirteenth of 
 
 April, 1752. 
 
 *! Hngh Campbell, factor to the Earl of Marchmout, as having full 
 power and commiffion from the faid Earl, not only to preferve the game, 
 both by land and water, but alfo having full power* to grant commiifiou t 
 Juch as I ihall think proper for the prefcrvation of the fame, within his Lord- 
 ihip's territories in this county, Do therefore, by virtue of the above powers, 
 grant full power and commifiion to Mr. Mungo Campbell, officer or excite 
 at Newmills, not only to prevent all and fundrie from fpoiling the game cither 
 by land or water, where his Lordfbip has a right; but alfo to proiec-.rre fuch 
 icfore the fheriff of the county, in his Lordftiip' name, and oi> 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 ltri<Sl interpretation, as it is obvious from the 
 fcope of the at, and every claufe and exprefiion in it, that 
 it does not authorife a fummary feizure, but only a forfeit- 
 ure by legal procefs. 
 
 * Aft 168;, C. 10. 
 
 C' This
 
 This flatute is in thefe words ; * Our fovere ign Lady, 
 ; with advice andconfent of parliament, does hereby ftricYly 
 ; prohibit and difcharge, in all time coming, the killing of 
 ' rnuir-fowls from the firft of March to the 20th of June; 
 ; and partridges from the firft of March till the 2oth of 
 ' Auguft, inclufive, under the penalty of 20 1. Scots tot'tes 
 1 quoties, the half whereof to be given to the difcoverer, 
 ' and the other half to be at the difpofal of the judge before 
 t whom the fame J&a/l be cognosced. And, for the better pre- 
 ' Venting the killing of thefefowls, during the forefaid pro- 
 
 * hibited feafons, her Majefty, with the advice forefaid, 
 c does ftridtly prohibit and difcharge the felling, buying, or 
 c ufing of thefe fowls during the forefaid feafons, within 
 ' any burgh, village, or private houfe within this kingdom, 
 ' under the penalty aforefaid, to be applied as above. As alfo, 
 ' it is hereby discharged, that no common fowler fhall pre- 
 
 * fume to hunt on any grounds without a fubfcribed war- 
 
 * rant from the proprietors of the faid grounds, ujider the 
 
 * penalty forefaid, befides forfeiting their guns, dogs, and 
 
 * nets, to the apprehenders or difcoverers. And it is hereby 
 
 * further provided, that no fowler, or any other perfon 
 
 * whatfoever, (hall come within any heritor's grounds, with- 
 ' out leave afked and given him by the heritor, with fetting 
 
 * dogs, and nets for killing fowls by nets ; and if any com- 
 ' mon fowler fhall be found in any place with guns or nets, 
 
 * having no licence from any nobleman or heritor, they 
 ' fhall be fent abroad as recruits. As alfo, that no perfons 
 
 * whatfoever (hall fhoot hares under the forefaid penalty, 
 ' And, for the better executing of this law, her Majefty, 
 ' with advice forefaid, appoints and ordains all fheriffs of 
 
 * (hires, ftewarts of ftewartries, juftices of peace, matters 
 ' of the game, bailies of burghs or regalicies, to put the 
 ' fame in due execution, under the penalty of 100 1. Scots ; 
 c for which penalty, it is hereby declared, that the faid jud- 
 ' ges fhall be liable to the purfuer or complainer before the 
 ' Lords of SefHon, upon an infirument taken by the faid 
 ' purfuer or complainer, that the judge aplied to refufed or 
 
 * delayed cognofce the complaint according to law, and to 
 ' decern in the terms of this aft. ' 
 
 It will be obferved, that the firft claufe of this ftatute ex- 
 prefsly enacts, that the offence which it creates fhould be 
 tried before a judge, and punifhed by a fine ; and that all 
 the fubfeqifent daufes refer to the fame method of procee- 
 dure. Thus the fecond claufe prohibits buying, felling, or 
 ufkigmuir-fowl during a certain period, ' under the penal- 
 
 <ty
 
 * tyforefaid, to be applied as above :' And the third claufe, 
 which is the one in queftion, discharges common fowlers 
 to^hunt, without a warrant, on any gentleman's grounds, 
 ' tinder the penalty fore/aid, befides forfeiting his dogs, 
 ' guns, and nets to the apprehenders or difcoverers ;' from 
 which it is plain, that the pecuniary penalty, and the for- 
 feiture of the dogs, guns, and nets, are to be obtained in the 
 fame way ; and as the at does not give (and it is impoflllle 
 to believe that it meant to give) the apprehender a power of 
 taking the penalty of 20 1. Scots out of the pocket of the 
 perfon apprehended j fo neither did it mean to give a power 
 to the apprehender, of forcibly taking from the perfon ap- 
 prehended his dogs, guns, and nets: befides, it will be obfer- 
 ved, that this cJaufe puts the apprehenders and difcoverers 
 upon the fame footing. And as it is clear, a difcoverer, 
 who has no hold of the perfon that has been {hooting,, can- 
 not poffibly make effectual, either the penalty, or the for- 
 feiture of the dogs, guns, and nets, otherways than by 
 procefs at law : fo neither can the apprehender, who is put 
 upon the fame footing, and has not a more fummary re- 
 medy given him. Moreover, the laft claufe of the ac~l plain- 
 ly fuppofes, that it was to be enforced only by judicial proce- 
 dure, for it recommends the execution of the a&to inferior 
 judges, and inflids penalties upon fuch as (hallrefufeor de- 
 lay to cognofce the caufes brought before them in confe- 
 quenceofit, or to decern in terms of it, which evidently 
 fuppofes that its different enactments were to be carried into 
 execution by the decrees of judges, not the force of private 
 perfons. 
 
 And the moft abfurd and dangerous confequences muft 
 enfue, were the interpretation in favours of a fummary for- 
 feiture to be liftened to. It is adverfe to the firft principles 
 of law, to ve(t>he 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 <o tranfgrefs againft one another, that every 
 preventive crieck is neceffary ; and the firft and moft effi- 
 cacious of all is the dread of the principle of refentment 
 and felf-prefervation, which the aggreffor is confcious his 
 attack muft roufe in the perfon offended. The interpofi- 
 tion of the law is juftiy made fubfidiary to this principle; 
 but foolifh and fatal would it be to make it fufpenfive of* 
 it; for it is evident, that robberies, murders, and crimes 
 of all forts, would be infinitely more frequent if the hands 
 of individuals were tied up fn m refitting them : and there- 
 fore they never were, by the laws of any country, tied up 
 from refiftance or defence in order to prevent wrongs from 
 being done. 
 
 The laft reftri&ion is abfolutely neceflary ; becaufe, with- 
 out it, every wrong or breach of the peace would occa- 
 fion another. But before a wrong or injury is done, and 
 while it is attempting, the aggreflbr is violating the law, 
 and difturbing the peace ; fo that nothing would be gained 
 to either, by difcharging refiftance and defence. On the 
 contrary, fuch prohibition would have the very worft con- 
 quences both to the law and the public peace, as it would 
 be a fpur to violence and outrage on the part of wicked 
 men, and bring an infufferable hardfhip on the good fub- 
 jecl: and citizen, who would be obliged to fubmit to inju- 
 ries, for which the law can almott never give him com- 
 plete redrefs, and for the moft part but a very inadequate 
 compenfation. For thefe reafons, the law of every coun- 
 try permits violence to be ufed in lawful defence. The 
 expediency is clear, and fo is the juftice j for when a man 
 attacks the perfon or property of another, he contemns and 
 renounces the laws cf fociety,'and brings himfelf and the 
 perfon attacked into a ftate of nature ; and by the law ot 
 nature they muft be judged, unlefs municipal regulations 
 come in the way j for the law of nature is the common 
 
 law
 
 [ 48 ] 
 
 law of every country, except in fo far as it is modelled 
 and reftriled by the municipal law. 
 
 This reafoning is important, and the panel hopes it is 
 clear and convincing. He is perfuaded every man's own 
 reflections and feelings will tell him it is fo ; fo that the 
 quotation of many authorities would be unneceffary. Non 
 tali auxilio. However the panel (hail ftate fome that are 
 capital. ' Qui cum aliter tueri fe non poffunt, damni 
 1 culpam dederint, innoxii funt, vim enim vi defendere, 
 
 * omnes leges, omniaque jura permittunt. Sed.fi defen- 
 
 * dendi mei caufa, iapidem in adverfarium mif-ao, fed non 
 ' eum fed praetereuntem percuflero, tenebor lege aquilia. 
 
 * Ilium enimfolum qui vim infer t ferire conceditur^ et hoc fe 
 4 tuendi dumtaxat^ non etiarn ulcifcendi caufa faSlum fit. ,' L. 
 45. 4, ff. ad leg. Aquil. 
 
 ' Eum igitur qui cum armis venit, poffumus armis re- 
 ' pellere ; fed hoc confejllm non ex inttrvallo. Dummodo 
 ' fciamus non folum refiftere permiffum ne dejiciatur, fed 
 ' etfideje&usquis fuerit eundem dejicere non ex intervallo 
 ' fed ex incontinent!.' L. 3. 9. ff. de vi et vi armata. 
 
 Lord Stair is likewife exprels upon this diftintion. His 
 words are : ' * The entry to poffefs that which is already 
 
 * poffefied, muft expel the prior, or elfe introduce a partial 
 ' and common pofleffion j yet it is not the contrary at- 
 
 * tempts, or every aft that expels the prior poffeffor ; but 
 
 * if the fame be violent, the prior poffeffor hath the benefit 
 
 * of a poffeffory judgment, and may lawfully ufe violence to 
 
 * continue in poffejjion^ which afterwards he may not for re- 
 
 * covery thereof, when it is loft, though unwarrantably or 
 4 violently, unlefs it be ex incontinent i.' 
 
 To the fame purpofe Lord Bankton. ' No doubt one 
 ' with us may continue or recover his poffeffion by force, 
 ' being ex incontinent'^ or inftantly before the other party 
 ' has got the poffeffion ; for after that he muft take the 
 
 * legal courfe, and not Jibi jus dicere^ do right to himfelf/ 
 Since then it is clearly lawful to ufe force and violence 
 
 in defence, the utmoft degree of them muft be permitted 
 if neceffary. That muft be permitted if neceffary to de- 
 fend life j that muft be permitted if neceffary to defend ho- 
 nour ; that muft be permitted if neceffary to defend pro- 
 perty. The defence of the perfon is indeed the moft im^ 
 portant, and makes the greateft figure in the imagination j 
 
 * Inft. p. 174. 
 
 but
 
 t 49 ] 
 
 Tmt the defence of the other two is equally lawful, wnerd 
 there is a neceflity, which muft be underftood fccundum 
 fubjeflam materiam, and the moderamen inculpate tutela is 
 obferved in all of them, when their prefervation cannot be 
 otherwife effected. And fo is to be underftood L. i. cod. 
 unde vi. * Recle poflidenti ad defendendam pofieflionem, 
 
 * quarn fine vitio tenebat inculpatae tutelae, moderations 
 ' illatam vim propulfare licet.' 
 
 This is clear from various texts of the civil law, the doc- 
 trine of which is very well fummed up by Heineccius in 
 thefe words : ' *Quo in primis moderamen inculpatse tute- 
 ' lae pertinet, quoquis adgrefibrem, vi injufta irruentem, 
 
 * imminent! vitae, corpori, rebufve penculo incontinent! 
 
 * tuendi fua caufa occidit.' 
 
 Gomez, in his treatife de Homlddlo^ has a paflage that 
 is very applicable in many particulars to this cafe, efpe- 
 cially as to the prefent point. He is there talking of de- 
 fence of the perfon j and after feveralobfervations, he adds 
 this one: ' Etiamfi aggreflbr veniat et refultet contra alium 
 
 * diverfo genere armorum, puta cum baculo, ligno vel in- 
 ftrumento, animo percutiendi, et inferendi fibi injuriam, 
 nam aggreflus potert ei refiftere, et fe defendere cum enfc 
 vel ferro, vel quovis alio inftrumento fortiori : et fi eurh 
 occidat cum aliter ab iila injuria non poflet evadere, non 
 tenetur aliqua poena, quia talis defenlio eft Helta pro de- 
 fenfione rerum, ut in L. furem ff. ad leg. Corn, de fie. et 
 
 ' in L. itaque ff. at L. Apud. et in L 3. cum igitur ff. 
 ' de vi armata ; et in L. i. C. Unde vi, cum fimil.^ergo 
 ' a fortiori pro defenfione perfonze et honoris quas dignior 
 
 * eft, ut in L. in fervorum, fin. ff. de poenis, cujus 
 
 * pulchra verba funt. Quia et folus fuftium idtus gravioc 
 
 * eft quam pecuniara damnatio; ut in L.Julianus, ver- 
 ' ficul. i. ff. Si quis omiffa caufa teftamenti. Imo quod 
 magis eft, hoc procedit et habet locum eadem ratione, 
 
 * etiamfi aggreffor veniat et refultet contra alium fine ali" 
 ' quo genere armorum, fed tantum manti vacua mirrans eum, 
 ' et volens alapam prebere ; nam fi aggreflus aliter il.'am 
 
 * injuriam, evadere, non pofllt licite poterit eum occiderej 
 ' et in expreflb ita tenet, Bald.' 
 
 The fame doclrine is taught by Grotins : e f V T eniamu3 
 
 * ad injurias quibus res noftras impetuntur. Si expletricecn 
 ' juftitiam refpicimus, non ' negabo ad res confervandas 
 
 * P^nd. lib 5. 185. 
 
 -f De jure belli, c. i. 1. 2. n. 
 
 rap-
 
 raptprem, fi ita opus eft, vel interfici pofle ; nam qua* 
 
 inter rem et vitam eft insequalitas ea, favore innocentis 
 
 eft raptoris odio, compenfatur, ut fupra diximus. Unde 
 
 fequitur fi ad jus folum refpiciamus pofle furem cum re 
 
 fugientem, fi aliter res recuperari ncqueat, jaculo pro- 
 
 fterni. Demofthenes oratione in Ariftocratem. Nonne 
 
 hoc per Deos durum atque injuftum eft, nee fcnptis tan- 
 
 tum legibus, fed et communi inter homine* ]egi con- 
 
 trarium, ut non finar vi uti adverfus eum qui hoftilitet 
 
 res meas rapiat ? Nee obftat caritas per mod urn prae- 
 
 cepti, lege divina humanaque fepofita, nifi res fit que 
 
 minimum valeat, ac proinde contemni mereatur: quam 
 
 exceptionem re&e nonnulli adjiciunt.' 
 
 Cocceius, chancellor to the King of Pruflia, a lawyer 
 
 whofe works have the greateft reputation and authority 
 
 over all Europe, in his commentary on the above palTage 
 
 of Grotius, expreffes himfelf thus : c Nos jure naturse 
 
 ' etiam pro defenfione rerum occidi furem pofle ftatuimus : 
 
 ' idque ex rationibus fupra, allatis extra omne dubium po- 
 
 c nitur, ubi fimul probavimus evangelii legem jus hoc na- 
 
 * turse, quod in fuo genere perfetum eft, non improbare, 
 
 * nedum tollere ; fed faltem nobis inculcare perfe&ius et 
 ' generofius efle amtnittere rem fuam, quam jure fuo cum 
 
 * internecione alterius uti.' And foon after he adds, 
 
 * Quod jus arcendi injuriam non oriatur ex aliqua propor- 
 ' tione, neque ex qualitate injurise, fed ex jure neceflariae 
 ' defenfiones, vi cujus omnia mihi licent fine quo jus a 
 ' natura mihi conceffum etfi minimum^ et exigui momenti 
 ' falvum efle non poteft.' 
 
 And the fame great author, in his treatife, intituled, In- 
 trodu&io ad Grotium iiluftratum, in treating of helium pri- 
 vatum, holds killing to be lawful : ' * Si periculum eft 
 
 * mutilationis membri, vel violationis pudicitiae ; fi peri- 
 
 * culum imminet accipiendse alapae, aut mali fimilis ; fi de 
 
 * defenfione rerum noftrarum agitur, etiamfi fit res mi' 
 
 * /;.' 
 
 The law of England is alfo exprefs upon this poinf ; 
 riawkins f, to confirm his position, That one may kill 
 another who attempts to kill him, fupports it by this ar- 
 gument: ' Is not he who attempts to murder me more in- 
 
 * jurious than he who barely attempts to rob me ?' Indeed 
 that one may kill in defence of his goods in Eng'and, is a 
 
 * Lib. 7. c. 2. 
 ^ Vol. I. p. 73 
 
 , propo-
 
 r si ] 
 
 propofition that has been innumerable times illuftrated by 
 examples in that country, where robberies are extremely . 
 frequent. 
 
 Neither was this ever doubted of in this country, and 
 that fo the law ftands is admitted by the profecutors in 
 their information *. ' It may be lawful (fay they) in de- 
 fence of one's property, to kill a robber who felonioafly 
 e endeavours to bereave him of it j becaufe without fo do- 
 * ing his property may be loft.' And this holds not only 
 of robbers by night, but likewife of robbers by day. For 
 though the a& 1661 difcharges the killers of robbers by 
 night from punifhment altogether, whatever the circum- 
 ftances of the Slaughter may be, it does not from thence 
 follow, that the killer of a robber by day is to be punifhed. 
 Such killing falls under the general exception of the fta- 
 tute of cafual homicide in feif-defence, which by the fta- 
 tute cannot be capitally punilhed, though in particular cir- 
 cumftances it may be arbitrarily. 
 
 The law of nature, as has been already faid, is the law 
 of every country, excepting in fo far as it is modelled and 
 reftrifted by municipal ftatutes. Our ftatute 1661 is far 
 from abrogating the natural right of defence. On -the 
 contrary, it tolerates and protects it in the greateft lati- 
 tude, and for that purpofe ufes the very general expreffion 
 of lawful defence. It does not ufe the expreffion in felf-de- 
 fence, for that might be thought only to extend to the de- 
 fence of the perfon, or life ; but it ufes the comprehenfive 
 expreffion of lawful defence* which extends not only to the 
 defence of the perfon and life, but to the defence of reputa- 
 tion and goods. 
 
 From what has been argued it is clearly eftablifhed, 
 that it is lawful to kill in defence of one's goods ; and this 
 propofition is not controverted in the information for the 
 profecutors, in which they endeavour to fhew, that it can- 
 not avail the panel, becaufe of the particular circum- 
 ftances of the cafe : and their argument is f, * That no 
 man is intitled to kill in defence of his property, unlefs 
 when 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, 
 commits a trefpafs upon the property of his neighbour, 
 
 * 
 
 Page 85. in fine. 
 Informal, p. 84, 
 
 G a and
 
 C ( 52 1 
 
 c bour, and for which reJrefs can eafily be had in a court 
 
 * of law, in fo far as the party has been injured. The 
 6 law of no civiljzed country will, in thefe circumftances, 
 ( allow a perfon to kill another under the pretence of de- 
 f fending his property.' And they afterwards apply this 
 pofition to the prefent cafe, as follows: c It is plain, that 
 
 * the deceafed earl had no fuch intention. He could not 
 ' have been charged as being guilty of felony, if, de fatto^ 
 
 * he had feized and carried off the panel's gun : he did 
 
 * not thereby intend felonioufly to rob and "bereave the pa- 
 
 * nel of his property. He was led to make the demand un- 
 
 * der tb.2 belief and apprehenfion, that the law intitled him 
 
 * to make the felzure. Whether he was right or wrong in 
 
 * that apprehenfion, is to the prefent iflue very immaterial. 
 c If 'he was miftaken, all that could be charged againft 
 e him, if he carried off the gun, was a common trefpafs, 
 ' upon which he might have been fubjecled, in a civil 
 c action, to reftore the gun, and to indemnify the panel 
 
 * of what expences he fhoulJ incur in making his claim 
 c effc6r.ua!, and what damages he could qualify he had 
 
 * fuftained by the feizure or detention.' And in fupport of 
 this feveral authorities are quoted. 
 
 This is the only argument, in the information for the 
 profecutors, that has any (hew of plaufibility : but when it 
 is impartially and thoroughly examined, it will appear that 
 there is nothing in it. What are the fecret fprings and 
 motives in a man's breaft to any adtion, human judges and 
 human law-givers cannot poffibly know; and therefore 
 they muft prefume the motive to be bad, if the action itfelf 
 be bad and hurtful. This holds in all criminal ^ueftions. 
 Thus if a man is killed by another, the prefumption is 
 againft the killer, and if lies upon him to prove a relevant 
 defence, fuch as accident, lawful defence, or provocation ; 
 xmlefs, as in this cafe, fome of thefe be admitted in the 
 charge againft him. 
 
 In the fame way if a man's goods are taken away from 
 him with terror arid violence, the law muft hold that to be 
 robbery Without inquiring into the intention, which it is 
 impoffible to know with certainty. The perfon that took 
 them may, perhaps, have done fo with an intention to give 
 them in charity, or to relieve fome perfon in very great 
 "want of them, or he may have intended to reftore them ; 
 but that cannot be known with certainty. His intention 
 may have been as well to take them lucri faclendi cauja ; 
 ?nd be his imen'jon what it may s a man has loft his 
 6 goods
 
 C 53 ] 
 
 goods, and has been put in fear, and therefore it is rob- 
 bery. 
 
 What Lord Eglinton's intentions were, cannot certainly 
 be known, ; the only thing 'certain is, that he attempted 
 to take away the panel's gun from him by force and fear, 
 as he advanced upon the panel, and fent for a gun to (hoot 
 him. It is very pofiible, that the final caufe of Lord Eg- 
 liugton's violence was not to reap any advantage by having 
 the property of the gun ; but that it was to inlult and pu- 
 nifh the panel for his imagined offence ; yet that is not cer- 
 tain, and it is far from being impoffible that a man of high 
 rank may covet a dog or gun of remarkable value. But 
 be his Lordftiip's motive what it may, certain it is, that 
 he meant to appropriate the gun to himfelf, and as force 
 and fear were employed, the a& came up to the definition 
 of robbery ; and if the panel's life could not be taken for 
 the homicide, upon fuppofition that his Lordfhip's at had 
 proceeded from covetoufnefs, it would be hard that the pa- 
 nel's life fhould be taken upon a bare prefumption that 
 his Lordfhip's motive was not fuch, without any proof, 
 which it is abfolutely impoflible to bring as to intentions. 
 
 Lord Eglinton, it has been already {hewn, had no right, 
 by the game law, to take this gun; the matter therefore 
 comes to be tried by the common law, and by it, it is 
 clearly prima facie robbery ; and an indictment for robbery 
 might have been moft relevantly drawn againft his Lord- 
 Ihip; and, if he had demurred to the relevancy upon this, 
 that he was entitled to take the gun by the "game-law, 
 that plea, for the reafons above explained, moft certainly 
 would have been over- ruled. At the fame time, it is pof- 
 fible, nay highly probable, that Lord Eglinton would not 
 have been found guilty of robbery by any jury upon the 
 above indictment ; for the cafe of a panel is always fa- 
 vourable, and the law ought never to be ftretched againft 
 him ; and therefore the jury, in all probability, would 
 have liftened to his plea, that he had been led to commit 
 the violence from an erroneous apprehenfion of the game- 
 law, and, from different circumftances, would have pre- 
 fumed that his motive was anxiety for prefervation of the 
 game, and punifhment of one whom he took to be a tranf- 
 greflbr. But though it were certain that lord Eglinton 
 would have been thus gently dealt with by a jury, and 
 though it were clear that fuch an equitable ftretch in his 
 favours were righc ; yet it does by no means therefrom 
 follow, that what was certainly robbery in ltrit law ftiall 
 
 be
 
 X 
 
 [ 54 1 
 
 be held by interpretation not to be robbery, in order to 
 come at the panel's life. However excufable and proper it 
 may be to make equitable ftretches and conftru&ions, in 
 order to fave a rmn's life, it would be unprecedented and 
 moft unjuft to make fuch ftretches and conftruciions, in 
 order to take it. 
 
 However, the panel's defence will not be hurt, though 
 it fhould be reckoned clear in point of law, that this was 
 not a robbery in Loru n & !'" f ^n. It is fufficient, that it be 
 an unlawful and violent attempt to take his property from 
 him ; and there can be no doubt it was that. It was what is 
 called vis privata y by the Roman law ; a trefpafs vi et armis 9 
 by the law of England, and what is called a fpulzle in the 
 law of this country, 'and a fpulzie aggravated by the con- 
 comitant circumflances of force a-nd rt?.r. 
 
 The panel has no occafion tq> 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<zconjlitutus', 
 and as the relevancy of this defence is admitted by the pro- 
 fecutors, there can be no difficulty to fuftain it. 
 
 It is fet forth in the indictment, that the panel fired at 
 the Earl, {landing unarmed, within two or three yards of 
 him, and fmiling at his accidental fall ; which laft cireum- 
 ftance, it was (aid, muft have fatisfied the panel that his 
 Lordftiip would have done him no hurt. 
 
 The panel' has not the leaft recollection of feeing afmile 
 on the Earl's face that day ; on the contrary,- it difcovered 
 all the fymptoms of the utmoft wrath and fury ; however, 
 if his Lordfhip did fmile, the fmile could not be a fmile of 
 complacence or good humour, it muft have been a fmile of 
 triumph and derifion, which could only tend to irritate and 
 provoke the more. 
 
 It is argued 'for 'the profecutors on this point *, *If he 
 4 was truly apprehcnilve that bod'ily harm was intended 
 ' againft him, his onlyTafety lay in keeping up his fire ; 
 
 * when the gun was difchsftged he became decencclefs, and 
 ' could eafily be overpowered 'by fuch fuperior numbers :' 
 from which they conclude, that his firing the piece pro- 
 
 * Inforoj. p. 89, 
 
 ceeded,
 
 [ 70 ] 
 
 cee^ed, not from an apprehenfion of danger, but the wick- 
 ed fcheme, which * from the beginning he appears to have 
 
 * deliberately and firmly refolved, 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 his gun.' 
 
 It is very true, that on difcharging his piece, the panel 
 became in a great meafure defencelefs, and expofed to the 
 attack of his Lcrdfhip's fervants : but from this, all that 
 can be juftly inferred is, either that the panel was fo bent 
 on hindering Lord Eglinton to take the gun from him, as 
 that he did not mind hazarding his own life for that pur- 
 pofe ; or that the panel was fo agitated by the fall, as to be 
 incapable to reafon or reflect at all : but it can never be 
 fairly inferred from this, that the panel fired the piece chief- 
 ly with a view to take Lord Eglinton's life. The argu- 
 ment that he (hould not have fired, becaufe upon that he 
 became defencelefs, is inept and trifling ; for, at that rate, 
 he {hould never have fired, and muft have fuffered his gun 
 to be taken from him : by firing his piece the panel did 
 all that man could do to prevent the injuries with which he 
 was threatened ; and in facl he did prevent them, he hin- 
 dered Lord Eglinton to take the gun or to {hoot him : his 
 fervants indeed, it is believed, carried off the gun, as the 
 panel has never heard of it fince, but that he could not help j 
 he did all that man could do to defend his property, his 
 honour, and his life j and the two laft he did preferve. 
 
 It was not a wicked fcheme to refolve to preferve his gun, 
 though at the lofs of his aggreflbr's life and his own j but 
 however, it does not appear that he would have carried the 
 matter fo far had he not been deprived of reflection by the 
 fall ; for though it is fet forth he fwore he would {hoot 
 Lord Eglinton if he did not keep off, yet it is admitted he 
 did not do fo ; though his Lordfhip continued to advance 
 upon him, he retired 120 yards, and if he fired, did not fire 
 till he fell. It is a ftrange allegiance *, that, ' it was a 
 ' falfe and groundlefs apprehenfion, that the Earl meant to 
 * ufe violence in depriving him of his gun.' Have neither 
 words nor actions any meaning ? did not his Lordfliip de- 
 mand it again and again ? did not he advance upon the 
 panel in order to take it ? did not he fend for his own 
 gun in order to made the panel give up his, either from 
 tear, or by putting him to death ? after all this, can it be 
 
 * Inform, p. 90. 
 
 faid,
 
 C 71 1 
 
 faid, that It was a falfe and groundlefs apprehenfion to fup- 
 pofe the Earl meant to ufe violence ? Such an argument 
 is a mockery of reafon and ofjuftice, and when counfel, fo 
 able as thofe for the profecutors, are obliged to refort to 
 fuch fhifts, it is a demonftration they are miferably 
 pinched. 
 
 From what has been above argued, it is hoped it will 
 appear, that, fuppofing the panne) had committed the ho- 
 micide charged, he did not commit murder, but only what 
 is called (laughter unawares in the law of Mofes, homici- 
 dlum in rixa commllTum in the civil law, manftaughter in 
 'the law of England, cbaude melle in the ancient Scottifh 
 law, and cafual homicide in defence in the ac~l 1661. 
 
 The panel, perhaps, has not anfwered minutely all the 
 arguments and obfervations that are to be met with in the 
 infoimation for the profecutors: had he done fo, this in- 
 formation, which is already very long, muft have been 
 much longer; but he has anfwered all their capital argu- 
 ments pointedly ; and the principles he has eftabl idled, and 
 the authorities he has quoted, will, he is perfuaded, enable 
 every perfon, who considers them with attention, to detedl 
 the fallacy of any argument or obfervation for the profecu- > 
 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 
 
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