it, and the Court will bear you.-(And then the Prisoner spoke to the following effect, after the cryer had made proclamation for silence.) Morgan. I have heard what has been sworn against me by the witnesses on the behalf of the crown; and I appeal to the Court and the jary, if there are not the greatest improbabilities in the world in the evidence they have given against me. I would speak particularly to what happened at Manchester. The deputy constable swears, That I gave him an order to seize all arins he could find, and to bring them to my quarters: Mr. Maddox swears, That at a consultation amongst the officers at Manchester, I was proposed for colonel of the regiment, which I refused, because I thought Mr. Townley was more fit for such a command than myself. Now can any reasonable man imagine that I, who had refused to be the chief commander of the regiment, would do the servile office of going up and down the town in search for arms? Every gentleman of the army (and I see several in this court) very well know, that to go on such an errand, would ill become any officer of a superior rank; and as to my own part, I am sure I could not have done any such busi ness. I do not deny my being at several places with the rebels; and if I had been indulged with a longer time to prepare for my trial, I should have made appear very clearly, that I was taken prisoner by the rebels, and detained with them much against my inclination; for there was no resisting force. My landlord, Mr. Chatterton, has made it plainly appear to this honourable Court, that I made my escape as soon as it was in my power; and if I could have done it sooner, or have had an opportunity to get away from them, I should have been very glad to have embraced it. As to my capacity as one bred to the law, I confess I never pretended to much knowledge that way, and therefore was a very improper person to counsel the chief of the rebels; for my advice, I am sure, could be of little service to him. lieve no gentleman belonging to the army, who knows me, will deny what I now tell this honourable Court. I cheerfully gave all the assistance I could in the public service, and I was always glad when my poor endeavours were crowned with success. Here have been many witnesses examined against me, and it is very impossible that I should confute them, because of the short time allowed me. I think it a very great hardship that I should be the last tried of all these gentlemen, because I could have brought several of them to prove my behaviour both at Manchester and in other places, was quite different from what the king's witnesses speak of; but as they are convicted, they cannot give any testimony for me, and that assistance I might have had, can now be of no use to me. If I was to speak it with my last breath, I must deny that I went voluntarily into the rebellion; but as the evidence for the crown is so strong against me, I must submit to the determination of this honourable Court, and I submit myself accordingly. When the prisoner had done speaking, Mr. Solicitor General stood up, and made a reply, which was to the effect following: Sol. Gen. I should not have troubled your lordships, or the jury, with saying one word more relating to the prisoner that is now before you; but I find it necessary, from what has been offered in his defence, to observe, that he has complained of many hardships. He seems to think it a great grievance, that his being last tried has deprived him of many advantages; but, in my opinion, he has had a better chance to defend himself, because it gained him more time to get his witnesses ready, and to prepare for his defence. Can any man imagine, that either of the persons who have been convicted (if Mr. Morgan had been first tried) would have appeared to clear him of the charge that is laid against him? If they had done so, they would have been their own enemies; for their evidence would have been a plain proof against themwere in the rebellion. There were abundance of gentlemen of for-selves, and convinced every body that they tune seized as well as myself, who were obliged to go with the army, till they found means to escape as I did. I had been to pay a visit to a gentleman at Etherton-hall in Cheshire, and I was seized by the rebels, and they took my horses from me. The laws of England are very just and equitable; and they say, that every man shall be tried by his neighbours, of the same state and condition with himself. God help me, I am deprived of that benefit, and I am now amongst strangers, who know nothing of me: they are upon their oaths, and must give credit to the witnesses; but I hope, and do not in the least doubt, that they will do me justice. I have served the crown of England in two campaigns with some reputation. And I beVOL, XVIN. The prisoner has no need to complain of any hardships; he has been used with as much lenity and tenderness as any man in his condition ever was; and nothing that he has asked, which the law could grant, was ever refused him. He has had counsel assigned him of his own chusing, to enable him to make his defence, a copy of his indictment in due time, and therefore he could not have any pretence of being ignorant of what he stood charged with; and I am sure no one can say, but he has had a very fair and impartial trial. I think of all the prisoners convicted, it is very evident, that the prisoner's case really appears the plainest of any; for of six witnesses, there are four who were not concerned in the rebellion, who positively swear to his person, 2 C and that he was the most active of any one in | and this commission grounded on it, are recited the rebel service; and Mr. How particularly swears, That he lodged at his house, he gave directions for every thing, and paid the reckoning for himself and eight officers who dined with him; and therefore he thought the prisoner was one of the heads of them. These were his words. Then there is Mr. Bowker, the deputy constable of Manchester, and he comes and swears, That the prisoner at the bar, with one Wallis (who is one of the head constables of Manchester, and Bowker's principal) came to him with a paper signed by the Pretender's secretary, ordering him to search for all arms, and carry them to the lodgings of David Morgan, esq. which he did accordingly, for in case of refusal, he, and all those who refused to deliver up their arms, were threatened with military execution. This witness is positive to the person of the prisoner; and I think there can be no plainer proof of high-treason than what has been sworn. As to what Mr. Chatterton has sworn to the prisoner's escape from the rebels, and leaving Ashborn, I admit to be matter of fact, but this plainly makes against the prisoner; for when he found their affairs were desperate, he was willing to shift for himself, and went away priI vately from them, purposely that he might not be seized by the king's forces. He had been among the rebels a considerable time before this happened, and if (as he pretends) he was detained against his will, he undoubtedly had frequent opportunities of leaving them; but that you find he never did, till his own preservation and safety required it. As to his complaint of hardships, there is no one here that ever intended him any; but the jury must go according to the evidence; and I am sure that no evidence in the world could have brought a fact more home to the prisoner than they have done this: and I doubt not but the evidence that has been given will have a due weight with the jury, and that they will find him guilty of the indictment. in the caption: and it is expressly alleged, that the commission did issue by virtue of the act; which could not be true, unless the commission was subsequent to it. Their second exception, and on which they seemed chiefly to rely, was, that the act empowers the crown to issue commissions for trying persons then in custody, or who shall be in custody for high-treason, in levying war before the first day of January next, and it is not alleged in the indictment that the prisoners were in custody at the time of the indictment: and consequently it doth not appear on the record, that the Court hath any jurisdiction over the prisoners.* To this it was answered by the Attorney General, and agreed by the Court, that it doth sufficiently appear on the record as it now stands, though not indeed on the indictment, that the prisoners are in custody; the record allegeth that the prisoners at the time of their arraignment, being brought to the bar in the custody of the sheriff to whose custody they had before been committed for the cause aforesaid, were asked, &c. The common commission of gaol delivery extendeth only to prisoners in actual custody ;† and yet it was never thought necessary to allege in the indictment that the defendant was then actually in prison; vand if this exception was to prevail, it would impeach all the judgments that ever have been given at any sessions of gaol delivery. That the act on which the Preston rebels were tried runs thus in the very words of this act, all the indictments at that time were as these are, and this very exception was then taken and over-ruled. Lord chief justice Lee produced a note he took at that time in in t the case of the King and Oxburgh; the same exception was then taken and over-ruled upon the reason last before given. treason. Judgment was then given as in cases of highMr. Serjeant Eyre afterwards, viz. August The Jury, without going out of court, brought 2d, took an exception that bears some affinity the prisoner in Guilty. July 22, 1746. All the prisoners who then stood convicted were brought to the bar to receive judgment; and their counsel, serjeants Wynne and Eyre, took two exceptions in arrest of judgment. 1. That the teste of the commission is not set forth in the caption of the indictment, and consequently, for aught appears on the record, the commission might issue before the commencement of the act on which this commission is grounded: and if so, the whole proceeding is coram non Judice. To this it was answered by the Attorney General, and agreed by the Court, that the jurisdiction of the Court doth sufficiently appear on the record. The act of parliament is undoubtedly the foundation of this proceeding: the act, to the last, in behalf of Donald Mac Donald and some others who then stood convicted, and were brought to the bar to receive judgment: it was, that it doth not appear that the prisoners. were apprehended; and saith he, in fact they were not apprehended, but surrendered. Whereas the act of parliament on which the commission is grounded, speaks only of persons that shall be apprehended and in custody. * See the Case of Eneas Macdonald afterwards. + V. 12 Mod. 449. the same point. + Upon the Trials of the lords Kilmarnock, Cromartie and Balmerino, to guard against this objection, the warrants for their commitment. were returned by the lieutenant of the Tower, read and entered on the Journal. Former Edition, This fine-spun objection was likewise overruled. The surrender was as much upon compulsion, as the submission of a person who cries for quarter in the heat of battle is. In both cases, the submission is by reason of a superior force, and for fear of iminediate death. David Morgan was about 51 years of age, born in Wales, and bred to the law, and had frequently as a barrister attended the courts at Westminster-hall, and elsewhere. He was a person of a very mean look, and seldom kept company with any gentlemen of his neighbourhood; and if it had not been for his estate, he might have starved, for he was so very lofty, and of so bad a temper, that nobody but such as were beholden to him cared to employ him. This Morgan was possessed of a very good estate in St. Leonard's Shoreditch, but he let it all run to ruin, because he would not pay the ground-rent. The rebels called Morgan the Pretender's counsellor, and his advice was consulted on every occasion. Even after he was condemned, he was haughty and insolent beyond expression; and the very afternoon before his execution, he grumbled to paythe cook who dressed his dinner, and said she was very extravagant in her demands. He read to his fellow prisoners above twenty minutes at the gallows, and died very uncon cerned. The morning (about six o'clock) before he went to execution he ordered coffee to be made, and bid them take care to make it very good and strong, for he had never drank any since he had been in that prison fit to come near a gentleman; and because it was ready before he was unlocked, he seemed angry, and in a great passion. He was executed with the others on Wednesday, July 30, 1746, and his body delivered to his friends to be buried. The nine that were executed at Kennington | Common, July 30, 1746, were Francis Townley, colonel of the Manchester regiment; Thomas Theodorus Deacon, James Dawson, John Berwick, George Fletcher, and Andrew Blood (or Blyde), captains in the Manchester regiment; Thomas Chadwick, lieutenant; Thomas Syd. dall, adjutant to the same ; and David Morgan, a volunteer in the Pretender's army; of these, Fletcher, Berwick, Chadwick, and Dawson, declared themselves members of the Church of England; Townley and Blood died Papists; all their speeches were filled with treasonable expressions, not fit to be repeated (as beforementioned): but we shall take notice what a strange enthusiastic sort of religion Syddall and Deacon were of, as they mentioned the church they belonged to in their dying speeches; and Mr. Morgan's declaration as to his faith. Thomas Syddall, the peruke-maker, says, " I die a member not of the church of Rome, nor yet that of England, but of a pure episcopal church, which hath reformed all the errors, corruptions and defects that have been intro. duced into the modern churches of Christendom: a church which is in perfect communion with the ancient and universal church of Christ, by adhering uniformly to antiquity, universality and consent; that glorious principle, which if once strictly and impartially pursued, would, and which alone can, remove all the distractions, and unite all the divided branches of the Christian church. This only Catholic principle is agreed to by all the churches, Eastern and Western, Popish and Protestant; and yet unhappily is practised by noue, but the church in whose communion I die. May God in his great mercy, daily increase the members thereof! And if any would enquire into its primitive constitution, I refer them to our commonprayer-book; which is entitled, "A Complete Collection of Devotions, both public and private, taken from the Apostolical Constitutions, the Ancient Liturgies, and the Common-prayerbook of the Church of England, Printed at London, 1734." " Mr. Thomas Theodorus Deacon said, in his speech, " I profess I die a member not of the church of Rome, nor yet of that of England, but of a pure episcopal church, which has reformed all the errors, corruptions and defects that have been introduced into the modern churches of Christendom: a church, which is in perfect communion with the ancient and universal church of Christ, by adhering uniformly to antiquity, universality and consent; that glorious principle, which if once strictly and impartially pursued, would, and which alone can, remove all the distractions, and unite all the divided branches of the Christian church. This truly Catholic principle is agreed to by all churches, Eastern and Western, Popish and Protestant; and yet unhappily is practised by none, but the church in whose holy communion I have the happiness to die. May God, of his great mercy, daily increase the members thereof! And if any would enquire into its primitive institution, I refer them to our Common prayer-book; entitled as above-mentioned." This book of devotion was supposed to be wrote by Dr. Deacon, the physician at Manchester, father of the above. The speeches of the rebels were suspected to be wrote by Mr. Creake, a nonjuring clergyman; (some said one of their bishops) at least he had a hand in them. Counsellor Morgan in his speech said, " To conclude, my brethren and fellow-subjects, I must make profession of that religion I was baptised, have continued, and shall, through divine permission, die in, which is that of the church of England; and which I hope, will stand and prevail, against the malice, devices and assaults of her enemies; as well those of the church of Rome, as those equally dangerous, the followers of Luther and Calvin, covered under, and concealed in, the specious bugbears of Popery and arbitrary power. This my faith, I have fully set forth in a poem of two books, intitled, "The Christian Test, or the Coalition of Faith and Reason;" the first | Mary Morgan, to be published by her, since it of which I have already published, and the has pleased God I shall not live to see it. To latter, I have bequeathed to the care of my these poems I refer, which I hope will obviate unfortunate, but very dutiful daughter, Mrs. | all cavil to the contrary." 513. The Trial of ALEXANDER MAC GROWTHER, for High Treason, at the Town-Hall, St. Margaret's-hill, Thursday, July 31: 20 GEORGE II. A. D. 1746. Mr. : Alexander Mac Growther was then called, and put to the bar, and for his trial put himself upon God and his country, and after making some exceptions, a jury was sworn to try him. The counsel for the king having opened the indictment, that the prisoner was a lieutenant in the duke of Perth's regiment, they proceeded to call their witnesses, and Mr. Allen was called and sworn accordingly. Solicitor General. Pray, Sir, acquaint the Court of all that you know of the prisoner. Mr. Allen. There are two Mac Growthers, but this is the oldest, and he was a lieutenant in the duke of Perth's regiment; and the first time he was in arms in the Pretender's service was the latter end of last August. He was a officers, and desired them to keep a good lookout, and take care the soldiers did their duty. Mr. Maddox was next called and sworn, who deposed, That he saw the prisoner at Carlisle, in his highland dress, at the time when his royal highness the duke besieged the city; that he was in a highland plaid, a bonnet, a white cockade and dirk, and was called lieutenant Mac Growther, and greatly esteemed by the rebels. The captains Vere and Nevet, who are officers in the king's service, deposed, That when the rebels surrendered themselves, they had orders from his royal highness the duke to examine all the rebel officers; and when they examined the prisoner, Mr. Mac Growther, he owned that he was an officer (a lieutenant) in the duke of Perth's regiment; and that he gave in his name as an officer; and all the witnesses agreed, that the prisoner was under no restraint, but acted as voluntarily as the other rebel officers. PRISONER'S DEFENCE. The prisoner's counsel insisted, that the duke of Perth had compelled him to enter into the rebellion, and had threatened him, if he refused to join them, to burn his house to the ground, to destroy all his cattle and stock of corn, and to lay waste all that belonged to him, t and to prove this they called four witnesses, who, in general, deposed, That several of the the prisoner, with destruction, if he refused joining the rebel forces; and to bind him with cords; and that being compelled, he was forced to join them to save himself from ruin. The evidence on both sides being closed, my lord chief-justice summed up the evidence to tenant to the duke of Perth, and accepted a duke of Perth's men came and threatened him, commission in the rebel service; he was called lieutenant in Perth's regiment by the officers and soldiers, and marched in his highland dress with the rebels from their first beating up for volunteers in Scotland. He was at Edinburgh, and seemed very glad when the Pretender had gi- rebels, and enlisted at got possession of the city, and encouraged the the jury; and as the proof was very strong, Edinburgh, rgh, a dirk by his side, had pistols ALEXANDER MAC GROWTHER'S CASE. (Foster's Reports, p. 13.) "In the case of Alexander Mac Growther, there was full evidence touching his having * See Leach's Hawkins's Pleas of the Crown, b. 1, c. 17, s. 24. † See some observations respecting this plea in the Case of lord Wintoun, vol. 15, p. 805. been in the rebellion; and his acting as a lieutenant in a regiment in the rebel army called the duke of Perth's regiment. The defence he relied on was, that he was forced in. "And to that purpose he called several witnesses, who in general swore, That on the 28th of August the person called duke of Perth, and the lord Strathallan, with about twenty highlanders, came to the town where the prisoner lived. That on the same day three several summons were sent out by the duke requiring his tenants to meet him, and to conduct him over a moor in the neighbourhood, called Luiny Moor. That upon the third summons the prisoner, who is a tenant to the duke, with about twelve of the tenants appeared; that then the duke proposed to them that they should take arms and follow him into the rebellion. That the prisoner and the rest refused to go; whereupon they were told, that they should be forced, and cords were brought by the duke's party in order to bind thein; and that then the prisoner and ten more went off, surrounded by the duke's party. "These witnesses swore that the duke of Perth threatened to burn the houses, and to drive off the cattle of such of his tenants as should refuse to follow him. They all spoke very extravagantly of the power lords in Scotland exercise over their tenants; and of the obedience, (even to the joining in rebellion) which they expect from them. "Lord chief-justice Lee, in summing up, observed to the jury, that there is not, nor ever was, any tenure which obligeth tenants to fol. low their lords into rebellion. "And as to the matter of force, he said, that the fear of having houses burnt, or goods spoiled, supposing that to have been the case of the prisoner, is no excuse in the eye of the law for joining and marching with rebels.* • "An apprehension, though ever so well grounded, of having property wasted or destroyed, or of suffering any other mischief, not endangering the person of the party, will be no excuse for joining or continuing with rebels; otherwise it would be in the power of any leader of a rebellion to indemnify all his followers. It was so ruled in the case of Mac Growther, and of many of the Scotch prisoners, on the special commission, in Surry, in 1746. In Mac Growther's Case, besides the threat of burning his property, it appeared that he and twelve other tenants of the duke of Perth, being summoned to meet him, appeared on the third summons, on the 28th of August, when "The only force that doth excuse, is a force upon the person, and present fear of death; and this force and fear must continue all the time the party remains with the rebels. It is incumbent on every man, who makes force his defence, to shew an actual force, and that he quitted the service as soon as he could; agree. able to the rule laid down in Oldcastle's Case, 1 Hale 50. that they joined ' pro timore mortis et recesserunt quam cito potuerunt.' " He then observed that the only force the prisoner pretends to, was on the 8th of August; and that he continued with the rebels and bore a commission in their army till the surrender of Carlisle, which was on or about the 30th of December. "The jury without going from the bar found him Guilty. But he was reprieved, and not executed. "N. B. All the judges that were in town were present, and concurred in the points of law. "N. B. Many of the Scotch prisoners made force their defence, and produced the same sort of evidence as Mac Growther did; and the same directions in point of law were given as in his case. And the matter of fact whether force or no force, and how long that force continued, with every circumstance tending to shew the practicability or impracticability of an escape, was left to the jury on the whole evidence." the duke proposed to them to take arms and follow him into the rebellion; that they all refused to go; whereupon they were told that they should be forced, and cords were brought by the duke's party (about 20) in order to bind them; and that then the prisoner and about ten more went off, surrounded by the duke's party. Lord chief-justice Lee observed to the jury, that the only force pretended to by the prisoner was on the 28th of August, and that he continued with the rebels, and bore a commission in their army till the 30th of December following. He was convicted but not executed. In all the like cases of the Scotch rebels, the matter of fact whether force or no force, and how long that force continued, with every circumstance tending to shew the practicability or impracticability of an escape, was left to the jury on the whole evidence." East's Pleas of the Crown, c. 2. s. 15. See, too, Mr. East's chapter (hereafter as it seems to be published) of persons capable of crimes, tit. Compulsion. + See in Foster's Reports, 1 Discourse, chap. 2, s. 8, p. 216. |