March 1762. Marriage, Births, Deaths, and Preferments. March 8. In the parish of Sieft, near Dax, in France, a woman, of three boys and a girl, all of the ordinary fize, and likely to do well. 10. At London, the wife of Mr Furmage, a domeftic fervant to the Duke of Richmond, of three girls, who were baptized Rebecca, Anne, and Mary; all likely to do well. 18. At Airth, Mrs Graham, wife of William Grabam, Efq; of Airth, of a daughter. [xxiii.165.] 20. At London, Lady Charlotte Murray, wife of the Hon. John Murray of Strowan, Efq; member for Perthshire, and daughter of the Duke of Athol, of a fon. 23. At London, the Lady of Lord Bruce, of afon and heir apparent. DEATHS. Dec. 21. 1761. At Jamaica, Adm. Charles Holmes, commander of a squadron on that sta tion. In Nottoway parish, Amelia county, Virgi nia, Mr William Proctor, a clergyman, born about Banff or Elgin, and educated in the college of Aberdeen. He has left an estate of a bout 3000 l. in very good hands, without making any will, or having any heirs in that coun try. His relations in Scotland will, no doubt, claim it. Jan. 24. At Martinico, of a fever, the Hon. John Rollo, captain and major of brigade, only child of the Lord Rollo. Of this young gen tleman a brother-officer writes, "His death is much lamented by all the army. He was bleffed with a sweet and feady temper; was affable, and void of pride; the warm and fincere friend, the chearful facetious companion. His parents are deprived of a most dutiful fon, and our little fo ciety of one of its brighteft ornaments." 31. At his feat in the neighbourhood of Nairn, James Rofe of Brae, Efq. At Chartres, in France, one Perche, aged 112. He never drank any thing but water, although a vine-dreffer by profeffion. Feb. 26. At Dublin, Lt-Gen. John Folliott, governor of Rofs castle, lieutenant governor of Kinfale, a major-general on the Irish establishment, and colonel of the 13th regiment of foot. 26. At Portsmouth, going on an expedition with the Earl of Albemarle, Maj. Gen. Borgard Mitchelfon, colonel of the fecond, battalion of the royal regiment of artillery. March 4 The Duke de la Rochfoucault, a peer of France, aged 71. 6. At Brunswick, the Duchefs-dowager of Brunswick-Wolfenbuttle, mother of the reigning Duke, and of the Queens of Denmark and Prefix. 167 8. At Hipley in Derbyshire, aged 111, Mrs Elifabeth Smith. 8. At his feat at Dunftaffnage, Angus Camp bell of Dunstaffnage, Efq; 9. At London, George Earl of Tyrconnel, of Ireland, member for Taunton. 10. At London, Phillips Gibbon, Efq; mem ber for Rye. 12. At London, Lady-dowager Middleton. 19. At Fingafk, aged 83, Mrs Katharine Smyth, relict of Sir David Threipland of Fingal, and daughter of David Smyth of Barnhill Efq; Ferrers, mother of the prefent Earl. 20. At Twickenham, the Countess-dowagse 20. At Edinburgh, Mrs Elifabeth Deans, daughter of James Deans of Woodhouflie, Eft PREFERMENTS. From the London Gazette. The King has been pleased, · March 6. to appoint William Blair, John Barnard, Robert Thompson, and George Whitmore, Efqs, together with John Kenrick, Efq; in the room of Matthew Kenrick, Efq; Com miffioners for managing his Majesty's stamp-duties 9. to appoint the following lieutenant-colo nels, to be Colonels in his Majesty's army, viz. HORSE. Courthorpe Clayton Francis Desmarette DRAGOONS. William Dean Arch. Montgomery James Gilborne Lt-Col. Lord George Lennox. of the 33d regiment, Aid-de-camp to his Majefty, with the rank of Colonel of Foot. Maj. James Stuart, Lientenant-Colonel; Captain: John Heighington, Major; Capt.-Lieut. Thomas Harrison, a Captain; Lieut John For fter, Captain-Lieutenant; Enf. Rice Price, a Lieutenant; and Charles Ingram, an Enfign, in the 56th regiment of foot, Col. William Keppel's John Lambton, a Lieutenant in the Coldftream regiment of foot guards, Lord Tyrawly's, to rank as a Captain of Foot. George Monro, and George Smith, Captains, and Thomas Harris, a Lieutenant, in the 68th regiment of fcot, Lambton's. Ralph Dundas, a Captain of a troop in the 11th regiment of dragoons, Earl of Ancram's. William Walcott, a Captain of a company in the 5th regiment of foot, Hodg fon's. John Bonner, a Captain in the 103d regiment foot, Lt-Col. Ofwald's. Edward Pountney Captain of an independent company of foot which he has raifed. and his heirs male, the dignity of an Earl of the kingdom of Ireland, by the title of Earl of Arran, in the county of Galway;" James Baron of Courtown, and his heirs male, the dignities of Viscount and Eart of the kingdom of Ireland, by the titles of Viscount Stopford, and Earl of Courtown, in the county of Wexford; Thomas Baron Headfort, and his heirs male, the dignity of a Viscount of the kingdom of Ireland, by the title of Viscount Headfort of Headfort, in the county of Meath; and Francis Vernon, of Orwell Park, in the county of Suffolk, Fiq: dignity of a Baron of his heirs-male, the kingdom of Ireland, by the title of Baron Orwell, of Newry, in the county of Down. Richard Lord Bishop of London was worn of the privy council, March 13. From other papers,. &c. Maj. Gen. Gage, Colonel of the 22d regiment of foot, in the room of Gen Whitmore, deceafed. Jonas Hanway, Efq; one of the Commiffioners of the Victualling-office, in the room of Sir Fran cis Hafkins Eyles Stiles, Bt, deceased. Robert Quarme, Efq Usher of the order of the Thiftle, in the room of Sir Thomas Brand, deceafed. the caftle of Edinburgh, in the room of Richard John Wemyss, Esq; Lieutenant-Governor of Coran, Elg, deceafed. Brough on, for Wigton; and Hon. Harry Nor New Members James Murray, Efq of ris, Vice-Admiral fex, in the room tal of the White, for Rye in Suf John Hamilton [112.], and Phillips Gibbon, deceased. 114 Edinburgh, April 13. 1762. Oat-meal 9 de Peafe-meald halfpenny. Bear-meal 5 da halfpenny. The Edinburgh bill of burials for March 1762. Within the Males 547 city Fem. 46 In the 22 100 George Carr, Major of the 32d regiment of Kirk-yard {Fem. 23} 37 foot, or Invalids, Maj. Gen. Parker's. James Dawion, a Captain; George St Clair, Captain-Lieutenant; and Robert Wylde, First Lieutenant, in the 85th regiment of fout, or royal volunteers, Col. Crawfurd's. John Lind, Lieutenant-Colonel of Foot, and John Forster, a Captain of foot, in the army, Lucius Ferdinand Cary, Major of the 74th regiment of foot, Col. Irwin's; and Governor of Goree Samuel Leflic, a Captain in the 14th regiment of foot, Lord Frederick Cavendifb's. Simon Fraler, Major of the 24th regiment of foot, Cornwallis's. 27. to grant unto Arthur Viscount Sudley, 137. Incr. 21, DISEASES. N 2 15 Aged & 5 15 Afthma 5 & 10 4Bowel-hive 10 & 20 20 6 Childbed 30 7 Chincough 30 & 40 11 Confumption 40 & so 16 Fever 60 & 50 & 60 20 Meafles 22 Suddenly Teething 80 & 90 90 & 100 Tympany ~ 70 &. Water in the head THE SCOTS MAGAZINE. A PRI L, 1762. CONTENTS. The trial of ARCHIBALD MACDONELL of Obfervations of the TRANSIT OF VENUS Over LETTERS. The Duchefs of Somerset on the New Books, with remarks and extracts. Dr POETRY. An ode to Pity 176. Prologue to HISTORY 206.225. Prosecutions against Reduction of the island of Granada, &c. Acts pafled 219. Trials made of Harrison's machines for difcovering the longitude ib. Pumps of a new invention 220. Addreffes, by the commiffion of the general-affembly on the King's marriage 221. and by the cities of London and Edinburgh on the conquest of Martinico 222. · Disturbances in Ireland 223. Money taken in on loan by the banks of Maritime occurrences 226. A by the name and defignation of Archibald An abstract of the PROCEEDINGS in the high court of Jufticiary at Edinburgh, The court. having met on the 11th, the crown-lawyers reprefented, That by the aforementioned act the prifoner ftood attainted of high treafon: That they had received his Majesty's orders to infift for an award of execution against him; which, A a in 1 Then the prifoner was brought to the bar; after which the act, and the exemplification of it, were publicly read; and the crown-lawyers moved, That the court would grant warrant and appoint a day for the prifoner's execution. The Lord Juftice-Clerk afked the prifoner, If he had any cause to show why the court fhould not proceed to award execution against him? To which, for answer, he read in court, and gave in the following paper. "My Lords, A perfon under my unfortunate circumftances, is very improper to fpeak for himself before this folemn audience. I cannot understand my felf to be the perfon attainted by this act of parliament. I was then a boy, lately returned from school, under the influence of a father who was unluckily engaged in the rebellion 1745. If he had not been able to justify or atone for both his own conduct and mine, it cannot be fuppofed, that he fhould have paffed unattainted, and that I his minor fon fhould be deftined for punishment. I therefore hum bly implore your Lordships indulgence, to attend to the heads of my defences to this heavy charge, which my learned counfel will explain. 1. I am advifed, there is no fufficient evidence produced of the act of parliament upon which execution is craved. 2. I am none of the perfons named in the copy of the act of parliament now read. My name is Archibald MacDonell; and my father's name was Col MacDonell of Inverie. 3. The condition under which the act of attainder was to take place, never existed. I rendered myself to one of his Majefty's juftices of peace before the 12th day of Julv 1746." Upon the before-recited motion and defences there was a long debate, of which we fhall endeavour to give the fubftance. The counsel were, Meff. Patrick Haldane and Alexander Home crown-solicitors, Robert Dundas (now Lord Prefident), Andrew Pringle (now Lord Alemoor), James Erkine (now Lord Barjarg), and Jehu Grant (now Baron Grant), for the crown;-and for the prifoner, Meff. James Ferguson (now Dean of Faculty), Alexander Lockhart, Charles Hamilton Gordon (now deceated), George Brown (now Lord Colston), and William Johnston. [We difcufs one defence before we enter upon another, though in court the counset of either fide fpoke to all the defences, before an anfwer, reply, &c. was made by their opponents.] DEFENCE I. There is no proper evidence before the court of the act by which the prifoner is faid to be attainted. When a court is required to award execution upon the fentence of another court, the only proper evidence of fuch fentence is the record of the court where it was pronounced. The exemplification produced is not sufficient; as no writs iflued from the court of chancery in England, can have any authority in this country, further than is expressly appointed by ftatute. Aufwer. The printed ftatute-book is admitted to be fufficient evidence of a public act of parliament; fo that the defence muft lie in this, That the act founded on is not a public, but a private act, of which a tranfcript ought to have been tranfmitted to this court by a Certiorari and Mittimus from the chancery in Eng land, as is the practice in the court of king's-bench. But, 1. As this act is made for attainting a great number of perfons therein mentioned, and contains directions to all juftices of peace how they are to proceed when any of thefe perfons fhould furrender themfelves, and prolibitions to all his Majesty's fubjects from corresponding with them, it falls neceffarily to be confidered as a public act; and therefore the ftatute-book is fufficient evidence for any court of law to proceed upon, and is the authority on which the courts of feffion and exchequer determine questions relating to the eftates of the perfons attainted by that act. 2. Suppofe it were a private act, the exemplification of it under the feal of the chance. ry is full and legal evidence of its tenor; and the fame which they have in the king's-bench, bating a final difference in form, occafioned by the courts of law of the different parts of the united kingdom being independent. The tenor of the act, when brought into chancery by Certiorari, is fent to the king's-bench by a Mittimus. And here it has been fent to this court under the feal of the chancery. So that we have all the evidence of April1762. Trial of Archibald MacDonell of Barifdale. of the act that the nature of the thing will admit of; and the fame evidence which the parliament of Scotland held to be fufficient of the act passed in the parliament of England approving of the artides of union. Reply. As the proceedings against the prifoner are founded fingly upon the act of attainder, it may be doubted how far the tenor of the act can be proved, otherwife than by producing the record. That in England the printed ftatute-book is not held as fufficient evidence of an attain der, is admitted by the profecutor. And though it may be true, that the court of King's-bench have been in ufe of proceeding upon an exemplification of the act transmitted from the chancery; yet it is greatly to be doubted, if fuch exemplification can be held as legal evidence in the courts of Scotland, which are not fubject to the jurifdiction of the court of chancery. 171 had a proper wadfet on the lands, of Inverie, and always refided there. Anfwer. By common acceptation MacDonald and Mac Donell have been univerfally underflood to be the fame firname; and however the different tribes of a family may chufe to vary the spelling of their names, that will never make a different name. In Scotland, almost every firnamne is differently fpelled by different perfons of the fame name, and if this exception were to be admitted, it would be extremely difficult to attaint many perfons in this country. A mifnomer of this kind, which at most is no more than a mif-fpelling, where the found is the fame, was never fuftained to bar an attainder; as has been often decided in England, as in the cafes of Martin for Marten, Bagfter for Baxter, Waking haw for Walking Shaw, c. It is fufficient, in an attainder by parliament, fi conftat de perfona, the parliament not being tied to the forms that take place in the courts of law; as was adjudged by the houfe of Lords in the cafe of Lord Pitfligo [xiii. 45.]. Gen. Gordon's cafe is not fimilar to the prefent: for there there was a mistake in the Chriftian name, Thomas inftead of Alexander, which is always held to be fatal. That the prifoner's father was Col MacDonell of Inverie, and not of Barifdale, cannot avail; for he always paffed in the country, and was univerfally known by the defignation of Barisdale, and not of Inverie; and in the year he flood a criminal trial before this court, by the defignation of younger of Barifdale. DEFENCE II. The prifoner's name is not contained in the copy of the act of attainder lodged in court.His name is Archibald MacDonell, and his father's name was Mac Donell of Inverie; whereas the name faid to apply to him in the copy of the act, is, Archibald MacDonald, fon of Col Mac Donald of Barifdale.- In the north-west highlands of Scotland there are two diftinct clans, one of which is conftantly called MacDonald, the other Mac Donell. By thefe names they are as much diftinguished as they could be by any two diftinct names whatever: and on account of a rival hip between them, they are remarkably careful to preserve Reply. The names Mac Donald - and this dictinction. The prifoner and his fa- MacDonell have been understood not to mily belong to the laft, and have been be the fame, but to be quite different. ever known by the name of Mac Donell, The different families have anxiously kept and by no other name, for numberless up the diftinction, and have different generations back. Of thefe facts the pri- coats of arms. For time past memory, foner is able to bring the cleareft evi- the family of which the prifoner is dedence, by charters and other authentic fcended, have been in ufe of carrying the deeds granted by the fovereign to his pre- arms, and the name of MacDonell; as deceffors, by private deeds fubfcribed by appears from a patent by K. Charles II. them, and by a hundred witneffes. Exe to the prifone's great-grandfather, apcution cannot therefore be awarded a pointing him Major-General of all his Magainst the prifoner, in confequence of an jefty's forces in Scotland, under the name act of attainder in which his name is no of Angus MacDonell; and can be otherwhere to be found. Thus, General Alex-wife proved from charters under the great ander Gordon was found not to be affected by the attainder of Major-General Thomas Gordon Laird of Auchintoul. Nor does the defcription referred to by the profecutor apply to the prifoner. His father had no intereft whatever in, nor did he refide on the lands of Barifdale; but he feal, and many other writings, ready to be produced.- - In the cafes of Marten, Baxter, and Walking Shaw, the question was only, How far a mistake in spelling was fufficient to make void an attainder? whereas here the queftion is, If an act of attainder naming one perfon, can be perA a 2 verted |