Alexander McGrowther's Case
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 1746 |
| Date | 31 July 1746 |
| Court | Court of the King's Bench |
English Reports Citation: 168 E.R. 8
THE COURT OF KING'S BENCH
S. C. 18 St. Tr. 391; 1 East, P C. 71.
alexander m'growthee's case. July 31, 1746. (Force relied on as a defence.) [S. C. 18 St Tr. 391 ; 1 East, P C. 71.] In the ease of Alexander M'Growther, there was full evidence touching his having 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 summonses 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 them ; and that then the prisoner and ten more went off, surrounded by the Duke's party. These witnesses swore, tiat the Duke of Perth threatened to burn the houses, and to drive off the cattle of such of hia tenants as should refuse to follow him. [14J They all spake very extravagantly of the power lords in Scotland exercise aver their tenants ; and of the obedience (even to the joining in rebellion), which they expect fiom them. Lord Chief-Justice Lee, in summing up, observed to the jury, that there is not, aor ever- was, any tenure which obhgeth tenants to follow 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.* 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 trme the party remains with the rebels. ft is incumbent on every man, who ^akes force his defence, to shew an actual force^ and that he quitted the service as soon as he could ; agreeably to the rule laid down in Qldcasttea case (1 Hale, 50), that...
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