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N obedience to the interlocutor of March 11. [175.], the following paPer was given in, dated, March 12. 1754 Condefcendence for Archibald MacDonell, fon to Col MacDonell of Inverie, prifoner.

THE prifoner is advised, that as the act of attainder is conditional, and only enacts, That the perfons therein named fhould be adjudged attainted, in cafe they fhould not render themselves, and fubmit to justice, betwixt and the 12th day of July 1746 [viii. 269.], it is relevant for him to fay, (as he has already done), That he did render himself to a juftice of peace, and fubmit to juftice, before the day mentioned in the ftatute. And as this alledgeance is precifely in terms of the statute, the prifoner is advifed, that all judges are obliged to take notice of it; and that no law now in force, either in Scotland or England, obliges him to condefcend further. But, this notwithstanding, the prifoner being defirous to pay all due regard to the commands of this court, does now condefcend more specially, as follows, viz.

The prifoner faith, 1. That foon after his Royal Highness's victory over the rebels at Culloden, the prifoner heard that his father had made his peace with the government, and that he had been received in or near the camp at Fort Augufus. 2. That the prifoner being after wards informed, that an act of attainder was paffing about that time, in which names might be inferted which might poffibly be mistaken for his, he (the prifoner) went in quest of his father, and found him at his house of Inverie in Knoydart, and told him his intention of fur rendering; and that his father thereupon went along with him to a place called Kinlochindale, in the isle of Sky, and fhire of Inverness, where they understood Sir A lexander Macdonald of Ślate then was: and the prisoner knew him to be not only repute a juftice of peace in that country, but alfo to be then at the head of a militiaparty employed in his Majefty's fervice.

That upon one or other of the days of June 1746, at least on or before the 12th of July that year, the prifoner did, in company with his father, who had gone by hinfelf the day before to fee the faid Sir Alexander Macdonald, repair to the VOL. XXIV.

faid place of Kinlochindale, where the with a confiderable party of militia un faid Sir Alexander Macdonald then was, der his command, and did surrender and deliver himself up to the faid Sir Alexander Macdonald.

The prifoner alfo faith, That the faid Sir Alexander Macdonald was in his Majefty's nomination of justices of peace for the fhire of Inverness fubfifting in the year 1746.That Sir Alexander did not commit the prifoner to prison, but allowed him his liberty, upon the prifoner's giving his parole to render and fubmit himself again to juftice when called for..

That in June 1746 the prifoner got from Lord Albemarle a pafs, which he made ufe of on feveral occafions, and thewed to many different perfons in his Majefty's fervice.

That the prifoner went to his father's houfe of Inverie, where he was feized with a fever, and was confined to his bed for fome weeks.

That, in the month of August 1746, he went with his father to the countries of Moidart and Arifaig; where he and his father were both feized by fome people of the name of Cameron, who had taken offence at the prisoner and his father, for reafons unneceflary to be here mentioned, and carried them both on board a French privateer, then lying off that coaft; where they were put in irons, and carried over to France.

The prisoner also faith, as a fact notourly known, That he and his father were kept in clofe cuftody in France, firft at St Malo's, and afterwards at Sau mur, for about a twelvemonth; after which he made his escape, and returned to the north of Scotland.

That his father having likewise made his efcape, returned to Scotland; and in the year 1749 both of them were apprehended by a party of the King's forces. That his father was carried prifoner to the caftle of Edinburgh; where he died after a long confinement [xii. 254.]: But that the prifoner, upon a juft reprefentation of the facts above fet forth, was immediately difiifled; and fince that time lived peaceably and openly at Inverie, or in the neighbourhood thereof, till the month of July laft, when he was again apprehended, and carried prifoner to the caitle of Edinburgh. КК

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To this paper was fubjoined a lift of the witnefles by whom the facts were propofed to be proved; among whom were, the Earl of Loudon, Normand Macleod of Macleod, Efq; Mr David Scrymgeor theriff-depute of Inverness fhire, and many other perfons altogether unex ceptionable.

The court met next day, March 13. 1754; and it was objected for the crown, That the condefcendence was not relevant, or duly qualified: in fo far as, 1. It does not fet forth, That the juftice of peace to whom it is alledged the prifoner furrendered, was duly qualified to receive fuch furrender; 2. Because it does not aver, That in consequence thereof he was imprifoned; or, 3. That he obtained any certificate, or written declaration, to evidence the fact; and, laftly, Suppofing the condefcendence were relevant, it is not probable by parole-evidence. It was answered, That the condefcendence is ftrictly and truly relevant, being conceived in ipfiffimis verbis of the act of attainder; an act which proceeds, not upon the certainty of the guilt of the perfons in it named, but only upon a prefumption of guilt: which evanishes by their furrender, within the time limited, to any juftice of the peace: and there fore, as the prifoner at the bar has condefcended, and does now again further fet forth, and qualify, That Sir Alexander Macdonald was, at and before the time of his furrender, an acting juftice of the peace; and as the prifoner has given in to the profecutor, and to the court, a lift of witneffes by whom he will be able to prove this allegation; fo it is wrong in the profecutor to argue on a fuppofal that Sir Alexander was not qualified to the government. That he was qualified, ought to be prefumed in favour of Sir Alexander, both from his acting under the commision of the peace, and his being employed in his Majefty's fervice during the late rebellion. However, it does not reft on this circumstance; but the prifoner's plea falls to be fuftained upon the ftatute, unless the profecutor could be able to fet afide that part of it which was justly intended for the benefit and fecu rity of the fubje&.-— This day's debate we infert verbatim, viz.

OBJ. I. As the prifoner ftands attainted by the act 19 Geo. II. in cafe he did not furrender himfelf, on or before the 12th of July 1746, to one of his Majefty's juftices of the peace, the attainder must

have its full effect, unless the condescendence had averred, That Sir Alexander Macdonald was duly qualified by law to act, and to put the fame to execution. Nor is it fufficient that his name may be contained in the commiffion of the peace; feeing he had no legal powers to receive fuch a furrender, or imprison any perfon in virtue thereof, unless he had been duly qualified as the law directs.

And if he had granted a warrant for that purpose, it is believed, that the same might have been legally disobeyed, as coming from one who was not impowered to act; and, of confequence, who could not be meant or intended as the perfon pointed out by the act to receive fuch a furrender: just as the furrender of a tack to a person who was not clothed with the right to receive it, would not, in the eye of law, be deemed a legal or valid furrender: more especially confidering, that Sir Alexander never did qualify by taking the oaths, although he had been feveral years named in the commnition before June 1746, the time this furrender is faid to have happened. Neither is it prefumable, that he, who never acted in the character of a juftice of the peace in any other refpect, would exerce the office in this fingle inftance; as thereby he rendered himfeif liable to the penalties of the law.

Aufwer. This objection goes upon an erroneous fuppofition in point of law. The law does not require, that a justice of peace fhould qualify himself, by taking the oaths before he enters on the exercife of his office: All it requires is, that he fhould qualify himself within three months after his admittance, or entry upon his office; and if he neglects or refules to take the oaths within that time, he is declared liable to certain penalties, and difabled to hold the office in respect of which he was obliged to take the oaths. This is evident from the statutes made 6° & 8° Anne, and 1o Geo. I. and all the other laws which have been made upon this fubject, which uniformly concur in allowing three months for qualifying after he enters upon the exercile of his office: and therefore it is impoilible that the validity of his acts can depend upon his being qualified or not. He is by law intitled to act without being qualified, and is liable to no penalty if he complies within the time limited; if he neglects, he is liable to pay a high fum, and allo to be deprived of his office, But these

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This is too great an abfurdity to be maintained. And it is equally certain, that the justices of peace did not always order the parties who furrendered, to prifon; but frequently allowed them to go at large, upon their parole to anfwer when required. It is notorious, that this was done in many inftances, both upon occafion of the late rebellion, and the former which happened in the year 1715 and yet the furrender was always held to be legal, and the parties who furrendered, intitled to the benefit of it. And therefore it is a new and unprecedented objection that is infifted on in this cafe, That when the prifoner complied with the direction of the law, execution ought to be awarded against him, as if he had not complied; because the juftice of peace to whom he furrendered did not fend him to prifon, but followed the fame course which has been followed by other juftices, the most loyal, and most defervedly intrufted; and which has always been held fufficient to give the party furrendering the benefit of the law.

If it is a rule, as is urged on the other fide, That conditional attainders enacted by act of parliament cannot be avoided by any other court, upon pretence of a compliance with the condition per æquipollens; it must equally be allowed, that no court can impofe a further condition than the ftatute has impofed, or find the attainder to have effect against a party who has, as the prifoner has in the prefent cafe, literally complied with the condition, upon the failure of which only the attainder was declared to take place. And as to what is faid, That the prifoner, after his furrender, retired to a part of the highlands where many of the rebels were still in arms, and that fince he came home he was careful to avoid falling into the hands of the officers of the law; thefe facts are denied. The prifoner never went into any country poffeffed by the rebels, nor had any intention to break his parole; nor indeed any apprehenfion that he would incur danger by oblerving it, and fubmitting to trial; but happened to be feized by fome of his enemies, when in his own country, ready to obey any call that was fent him by Sir Alexander Macdonald, or any other officer of the law. And the bad ufage he met with, both in his feizure and imprisonment, by his Maje fty's enemies, is no good argument a gainst his being intitled to the benefit of liis furrender,

And fince he returned to his own country in the year 1747, he has lived openly and inoffensively as any other fubject under his Majesty's government, without endeavouring to conceal himself from the officers of the law, as is alledged on the other fide.

OBJ.III.Suppofing an actualimprisonment of the perfon furrendering was not neceffary in order to take off the attainder, still he ought to have procured a certificate or declaration of the fact from Sir Alexander; which although it would not have availed, for the reafons already set forth, ftill it would have been fome evidence at leaft of the res gefta, and that the furrender was not altogether a fham, calcu lated with a view to answer a particular purpose. However, if this had been done, it might have given fome fatisfaction, that the alledgeance was not altogether groundless: and as it is not pretended that any fuch was granted, it must show, that no fuch furrender as is now alledged, was received or accepted of.

Anfwer. This objection goes upon the fame mistake with the former, as if it were incumbent on the prifoner to prove, that he had done more than the ftatute requires. All that it requires of him is, to render himself to one of his Majesty's juftices of peace before the time limited. This is a plain fact; which, from the nature of the thing, is provable by witnes fes. It requires no certificates to be granted, or entries to be made in the record; which would tend only to infnare thofe who might trust to the faith of the law, by leaving it in the power of a clerk or amanuenfis, by an erroneous certificate or record, to defeat the effect of the furrender. Such conftruction is no way agreeable to the fair intention of the legif lature; which gives every perlon named in fuch acts full affurance of a fair trial, if he renders himself to a justice of peace before the day prefixed. And accordingly, even in thofe cafes where the validity of furrenders has been most strictly examined, it never was made an objection, That the furrender was not proved by certificate, or by record. The only objections hitherto thought tenible, have been, That it was not made to any of the perfons fpecified, or within the time limited, by the act.

OBJ. IV. Granting the furrender had been made to a qualified perfon, as no imprisonment followed thereon, it is contended, That the fame is not competent