verted and explained so as to attaint ano-
ther, who has always carried a name dif-
ferent from that mentioned in the act?
No man can be affected by an act of
attainder, who is not expressly and pro-
perly named in the act. Thus, in 1716,
the houfe of Lords, after having got the
opinion of all the judges of England upon
the question, found Gen. Gordon not at
tainted, because he was named Thomas
in the act, instead of Alexander; and
their Lordships gave the like judgment in
the cafe of Farquharfon of Inverey, who
was named Alexander in the act, instead
of Patrick. The argument from these
two precedents applies a fortiori to the
prefent cafe. For there, notwithstanding
the error in the name, the defcription
was fo particular, that there could be
little doubt concerning the perfon meant;
whereas it can scarcely gain credit with
any mortal, that it was the intention of
the legislature, to make the prifoner,
who had not a fhilling in the world, and
was then only a boy of feventeen years of
age, a victim to public juftice. The
profecutor feems to admit, that an error
in the Chriftian name is fufficient to avoid
an attainder, but not an error in the fir-
name. But this diftinction has no foun-
dation in reafon, and the contrary has
been often found. Thus, a perfon out-
Jawed under the name of F. Stock, having
objected, That this was not his name,
but F. Stockis, the plaintiff replied, That
the defendant was known by the one
name as well as the other. But, this
notwithstanding, iffue was joined, and
the matter ordered to be tried by a jury,
Trinity term 14 Ed. IV. p. 6. And the
like was done in another cafe, where a
perfon whofe name was C. Walter, was
outlawed under the name of C. Falter, 27.
Hen. VIII. 11. Brooke's Abridgment, tit.
Scire facias, 232 6.The only ground,
on which the decifion went in the cafe
of Lord Pitfligo, was, That he and his
predeceffors had been always known by
the name and title of Lord Pigo, had
been fo defigned in the rolls of parlia-
ment, had fubfcribed oaths and protefts
in parliament under that title, and had
been always in ufe of fubfcribing and de-
figning themselves fo. The objection was
not, as here, That Lord Pitfligo was at-
tainted by a name which did not belong
to him; but only, That the act did not
contain the whole of his name: and it
was admitted in Gen. Gordon's cafe, that
had he been named Major-General Gordos

Laird of Auchintoul, without mentioning his Chriftian name, the attainder would have affected him, (which was precifely Lord Pitfligo's cafe); but it was never doubted, that had he been named MajorGeneral Alexander Thomfon Laird of Aus chintoul, the attainder would not have applied to him. And the present cafe is exactly parallel; with this material difference in favour of the prisoner, that not only is the name erroneous, but the defignation alfo. His father was proprietor of Inverie under redemption, but had no intereft whatever in Barifdale, nor fo much as refided there, fo as he could have the fmalleft title to the defignation fuppe fed to be given him in the act.

DEFENCE III. The prifoner avers, and offers to prove, that, within the time limited by the ftatute, he did actually fur render himfelf to one of his Majesty's jus ftices of the peace.

Aufwer. So good a plea, if real, would not have been fo long concealed. But in the general way in which the plea is offered, it cannot be fuftained. For, 1. The ftatute requires every perfon mentioned in the act, to furrender himself, and fubmit to juftice; and the justice of the peace is required to put him into cu ftody, to remain till he be liberate by due courfe of law. But a furrender might be made at an improper time, when the jus ftice could not commit him. And as the prifoner does not fay, he was put into cu ftody, or fubmitted himself to juftice af ter his furrender, or that the juftice had taken the oaths to the government, or acted in that capacity, his pretended furrender muft go for nothing. 2. As he does not pretend to produce a record of his furrender, but would prove it by pa role-evidence; not of the justice, as he is dead, but by witneffes; this, by fuborning witneffes, may prove an easy me. thod of eluding the act of attainder, not only to the prisoner, but to every perfon in it contained. 3. This plea is contradicto, ry to, and inconfiftent with the prisoner's other plea, of denying he was the perfon intended to be attainted by the act: for fuch furrender is the strongest evidence, that he understood himself to be compre hended in it.

Reply. It is not easy to figure what anfwe can be made to a defence laid in the very words of the ftatute. As to the Firft, The prifoner is not obliged to fay, though, were it neceffary, he is able to prove, that Sir Alexander Macdonald had

taken

April 1762.

Trial of Archibald MacDonell of Barifdale.

taken the oaths to the government, or that
he bad formerly afted as a juftice of the
peace: for as no fuch requifites are men-
tioned in the ftatute, judges have no
power to add to or detract from the con-
ditions on which the attainder was to
take place. The condition of fubmit-
ting to justice is only added to prevent a
mulate furrender. Than which nothing
can be more remote from the prefent
cafe; where it is offered to be proved,
that the furrender was made to Sir Alex-
Lader Macdonald, when at the head of
a confiderable party. of militia employed
his Majesty's fervice, and who were then
raniet pollethon of the part of the country
here the furrender was made. And it is
no importance, that the prifoner was
ot committed to jail: for it would be
blurd, that for a neglect of duty in Sir
Alexander, the prifoner thould be forfeit-
d, who had complied literally with the
tatute. At the fame time Sir Alexander
was not to be found fault with. He did
more than was done by others in like
rarnitances. And that his conduct was
not difapproved of by those who had the
def command in Scotland at that time,
ears clearly from the prifoner's having
Mained a pafs from the Earl of Albe-
rle immediately after the furrender
s made, which can be proved to have
een feen by many unfufpected witneffes.-
s to the Second, The flatute does not fay,
at the furrender is to be proved only by
cord; there is nothing therefore to hin-
er the fact to be proved by witneffes.
That the aft may be easily eluded by fub-
ing witnefles, is not a decent fuppofi-
Witneffes are prefumed to depofe
he truth: and as upon this principle the
wallows all manner of crimes to be pro-
td by parole-evidence, fo it has most
y allowed the pannel to prove his de-
nce in the fame manner. In the eye
the law it is better that a perfon truly
ant to be attainted fhould have a
Lace to efcape, than that any prifoner
ld be precluded from proving his juft
aces, merely because there is a poli-
ty that exceptionable witnesses might
adduced. As to the Third, The de-
ces are no wife contradictory. The
oner forefaw what has fince happened,
at by ftrained inferences and conjec-
res, an attempt might pollibly be made
bring him under the words, or at least
rintendment of the ftatute; and for that
en he judged well, in complying with
condition of the ftatute, by furrender-

373

ing himself in the manner thereby directed.

IV. It is craved, that the Lords would remit the facts now offered to be proved, to the knowledge of an allize.

Answer. 1. By the practice of this court, it is not neceffary to try the prifoner's defences by a jury; for though the trial upon an indictment must be by jury, yet all incidental questions, fuch as where pregnancy or lunacy is alledged, or judgment is to be awarded after fentence against a person who had made his efcape, the evidence is taken before, and judged of by the court. 2. This, which is uncontrovertedly the law of Scotland, is no way altered by the act 7o Anne. For we are not now in the cafe provided for by that act, but in an incidental or collateral question arifing after the judg ment. Now, though in England the facts here founded upon, would be tried by a jury; that can have no effect here; as the prifoner is already tried, convicted, and attainted; and the court is not tied to the forms of England, except in the trial for treafon. And even in England, the awarding execution is not confidered as any part of the trial: for the court of king's-bench can award execution against, but cannot try a peer; and in trying fuch collateral circumstances as the prefent, there is no regular pannel of a jury fummoned and returned, but a jury is immediately called de circumftantibus; nor are the ufual challenges allowed as in a trial, [vii. 530.]. 3. If it behoved, in all collateral circumstances, to proceed according to the law and practice of England, the confequence would be terrible to this country; as no perfon committed for treafon could have the benefit of the act 1701: but as after the rebellions both of 1715 and 1745, numbers of people committed for treafon got the benefit of that act, it is a proof that the law of Scotland takes place in collateral circumstances which do not properly belong to the trial.

Reply. The prifoner confiders this queftion as of no importance to him, as he is perfuaded he fhall have the fame juftice from the court, which he could expect from a trial by his peers: but, in point of precedent, it is of the laft importance to every man in the island. It has been always juftly held, that a trial by a jury is the grand bulwark of the lives and li berties of the fubject: but if this bul wark hall once be broke in upon, particularly in matters relating to treason, it is easier to foresee than to prevent the confequences,

April 1762.

Trial of Archibald MacDonell of Barifdale.

no inftance in the books of adjournal, of execution being awarded against a criminal, who having efcaped, and being afterwards apprehended, denied his identity. Johnfton the gypfy, in 1728, who had been fentenced in a circuitcourt at Jedburgh, but had efcaped, was brought before the court at Edinburgh, and, upon a proof taken of his identity by two witneffes, the former fentence was ordered to be put in execution against him. It is true, the record does not fay, that he denied himself to be the identical perfon: but had he confelfed it, the proof would have been unnecellary. The prifoner's counfel admit, that there are feveral inftances in the books of adjournal, where perfons fentenced in abfence, were, upon acknowledging their identity, ordered for execution, without any jury: which proves the propofition contended for by the profecutor: for in all trials for crimes, the confeffion of the pannel fuperfedes the neceflity of any proof; but ftill the jury muft return a verdict; and the confeffion of the pannel is the only proof tranfmitted to them. Hence it appears, that trials for crimes are by jury; whereas the court are the only judges of the identity of a perfon who has been already fentenced, whether that identity be proved by the confeffion of the party, or by witneffes.

Triply. It is fubmitted, what weight can be laid upon one precedent only, where the queftion was not difputed; especially where this fingle precedent, in the cafe of a gypfy not defended, is contrary to the genius and fpirit, not only of the law of Scotland, but alfo to that of England. But the cafe of Johnston, when confidered, is truly no precedent: for it does not appear that the prifoner ever denied that he was the perfon convicted; and by the laws of both Scotland and England, a jury is only neceffary, where a relevant defence is offered by the prifoner, and iffue joined upon fuch defence. As the record does not bear, that the prisoner denied the identity, the legal prefumption is, that he made no de. fence, and that the two witneffes were only examined ob majorem cautelam. And no argument can be drawn from the cafe of a party confeffing, to the cale of a party denying. The purpose of juries is only to judge of defences made by the party ccufed; and therefore, as a party who onfesses judicially, makes no defence, he

175

may be lawfully condemned without a jury. This clearly appears from the aft 64. parl. 8. Ja. III. which provides, "That aflizers who are fufpect de temerario juramento, thall be accufed before the King and his Justice; and if they confefs their fault and temerarium perjurium, they are to be punished after the form of the old laws; and if they deny, the King and his council fhall give them an great aflize."

Quadruply. The doctrine, That there is no neceflity for a jury, except in the cafes of defences offered, and iffùe joined,' is without all manner of foundation in the law of Scotland. And the act referred to has no concern in the matter; as it is certain, that there is scarce any instance of the court's proceeding to condemna tion, upon the confeffion of a perfon tried on an indictment, without remitting the pannel to an aflize. Though a fingle inftance or two may be found a hundred years ago, yet it was always upon the perfon's own confent: and the uniform practice, fince the prefent constitution of the court in 1672, is, in all trials, whether the perfon accufed confefs or not, to proceed by a jury. And many inftances occur, where perfons tried and convicted in abfence before the high court of jufticiary, have been, upon being apprehended, ordered for execution; fome of them perfons of the highest rank, fuch as the Earl of Argyle: nothing was done but the court's fatisfying themselves, without any jury, as to the identity, which was either acknowledged, or not denied.

The interlocutor on this debate, dated March 11. 1754, is in thefe words. "The Lord Juftice-Clerk and Lords Commiffioners of Jufticiary,find, That there is fufficient evidence before the court, of the forefaid act of parliament of the 19th year of his prefent Majefty, from the ftatute-book, and exemplification of the faid act therein contained, produced; and repel the objection made thereto: As alfo repel the exception pled for the faid Archibald MacDonald, That his name is MacDonell, in place of MacDonald; and that exception alledged by him, of his father's name being MacDonell of Inverie: And before anfwer to the other defence pled for him, of his furren der, they ordain him and his procurators to give in a more fpecial condefcendence, of time and place, and way and manner of his furrender, and fubmitting himself to juftice; and the perfon to whom, and

the