514. The Proceedings at St. Margarets-hill, Southwark,* relating to ALEXANDER and CHARLES KINLOCH (Brothers to Sir James Kinloch, hart.), on August 23, September 2, October 28, 29, November 15, December 15 and, 20, 1746. Before the Lord Chief Justice Lee, Lord Chief Justice Wiles, Lord Chief Baron Parker, Mr. Justice Wright, Mr. Baron Reynolds, Mr. Justice Abney, Mr. Justice Dennison, Mr. Baron Clarke, Mr. Justice Foster, Mr. Baron Clive, Sir Thomas De Veil, knt. and Peter Theobald, esq. relating to their Plea that they were born in Scotland, and ought to be tried according to the Laws of that Kingdom, &c. :t 20 GEORGE II. A. D. 1746. August 23, 1746. THIS day bills or indictment were found against Alexander Kinloch and Charles Kin-loch, and others of the rebels to the number of twenty-two. The overt acts were laid in different shires in Scotland, according to the respective cases of the prisoners. And then the Court adjourned to the nit of September for the arraignment of the prisoners. September 2, 1746. On this day, (there being no other judge in town) Mr. Justice Foster sat with two other com- missioners, sir Thomas De Veil, hot. and Peter Theobald, esq. for the arraigning the prisoners. Alexander Kinloch and Charles Kinloch, and the rest of the prisoners, who were Seotchmen born, upon their arraignment severally deliver. ed a paper into court whereof the following is a copy : " As I intend to insist on the benefit of the Act of Union, by which all the laws in Scotland at that time winch concern private right are saved to the natives of Scotland, and declared to * We cannot find that any trial of these two Kinlochs was ever printed ; the evidence against them (and the rest tried at St. Margarets Hill) being so very plain, nothing remarkable happened at their trials. Their principal objection being in nature of a plea to the jurisdiction of the Court, we shall insert their plea, the entry on the record, demurrer, &a relating to tins point, with a brief account of the arguments of the counsel and court, and judge Fosters argument on the case, from his Reports, p. 15, et seq. Former Edition. See, also, Easts Pleas of the Crown, c. 2, 41. t See Foster 16, 23. 1 Wils. 157. Easts Pl. Cr. ch. 2, 41; and sir John Perrotts Case, vol. 1, p. 1315, and lord MGuires Case, vol. 4, p. 654, of this Collection, and the other books referred to by Mr. East.be unalterable by the parliament of Great Britain, except for the evident utility of the subjects within Scotland ; and as I am a subject born within Scotland, and stand indicted for treasons charged to have been committed by me in Scotland, 1 humbly beg that the Court will be pleased to assign me counsel and a solicitor to advise me as to the manner of framing, and the use to be made of this defence ; and that the Court will be pleased to indulge me in a few days time to advise with them, before I am compelled to plead ; lest by pleading I may be deprived of the benefit of any such defence." Mr. Justice Foster told the prisoners that copies of their indictments having been deli-stared to them in due time, they ought now to have been ready to plead such pleas as they would stand by ; and that the Court expected they should now plead accordingly. He told them withal, that if the matter contained in their papers would avail them at all, they would have the full benefit of it upon Not Guilty : since it amounts to no more than that their cases are not within the act of the last session, by authority of which act alone this court sits. They then severally pleaded Not Guilty. The CASE of ALEXANDER KINLOCH and CHARLES KINLOCH, Oct. 28, 1746. Present lord chief justice Willes, Mr. justice Foster, and Mr. baron Clive. Alexander Kin-Inch and Charles Kinloch, who were the first of the prisoners concerned in the paper delivered the 2d of September that were brought to trial, were set to the bar ; and they agreeing in their challenges, one jury was sworn and charged with them by the clerk of the arraignments. The junior counsel for the crown opened the indictment, and the solicitor general in a few words opened the evidence. When the counsel for the crown had proceeded thus far, the chief justice, before any evidence was given, told the prisoners counsel, 397] fir High Treason. that he was informed they had some objection to make in behalf of their clients grounded on the Act of Union ; which objection he said was proper to be spoke to before the counsel for the crown went into their evidence. Whereupon Mr. Joddrell, one,. of the prisoners counsel, stated his objection, and spoke largely to it. The chief justice then said, that the objection being in nature of a plea to the jurisdiction of the Court, could not be made on the issue of Not Guilty ; nor could any evidence in support of the objection be received upon that issue ; and therefore proposed that a juror should be withdrawn ; and that the prisoners should have leave to withdraw their pleas of Not Guilty, and to plead this matter specially: and that the attorney general might demur, and so the point would come regularly before the Court. Mr. Justice Foster said on this occasion, that when he assured the prisoners, they would bare the full benefit of this objection on their plea of Not Guilty, he had no intention of leading them into a difficulty, which they could not get clear of; without the indulgence of the Court. He thought they would be entitled ex men, jure to the full benefit of the objection without such indulgence ; and added, that the principle he went upon was this, if there he any weight in the objection, it must be that the case of the prisoners is not within the act of the last session, under which act alone this special commission is executed. And if it be not within that act, it is a case at common law ; and consequently, taking it to be a case at common law, if no overt act he proved in the county, where the commission sits, and whence the jury comes, the prisoners must of course be acquitted. Sir John Strange, of counsel with the crown, strongly insisted, that in point of law the prisoners were entitled to the benefit of the objection on Not Guilty, if they could avail themselves of it ; and the attorney general offered to wave all advantage that might he taken against the prisoners, if any advantage could be taken ; and pressed that the trial might go on upon the issue joined by them, and that the merits of the objection might be now considered. But it was otherwise ordered, and a juror was withdrawn, and the jury discharged upon the motion of the prisoners counsel, and at the prisoners request, and with the consent of the attorney general. And the prisoners withdrew their former plea, in order that they might he ready the next day with their pleas to the jurisdiction in form. To which the attorney general declared he would demur instanter. And the Court adjourned to the next day. The entry on the Record touching this matter, is as followeth : "Upon the motion of Charles Hamilton Gordon, esq. and Paul Joddrell, esq. being as signed as counsel for the defendants in this cause, and by their consent, and also at the desire and request, and by the consent of the defendants now at the bar here, and also by the 4. D. 17441 [39$ consent of Mr. Attorney General on behalf of the king: It is ordered by the Court here, that Richard Toy the last of the jurors sworn and mmelled in this cause be withdrawn out of unp the pannel ; and that the rest of the jurors ha this cause be discharged ; no evidence whatsoever having been given to the said jury in this causeeither on the part of the kin or of the des fendants. And it is further ordered by the Court here, that the said defendants have leave to withdraw their pleas of Not Guilty by them formerly pleaded to the s indictment in this cause, and have leave to plead to the jurisdiction of this court : and that the said defendants have time till to-morrow to put in such plea. And that they deliver copies of such plea to Mr. Sharpe, solicitor for the king in this cause, by eight of the clock this evening. And thereupon the said defendants do now here at the bar withdraw their said pleas of Not Guilty, in order to put in such plea to the jurisdicitioa of this court as aforesaid." October 29, 1746. On this day, present the same judges Ss yesterday. Alexander Kinloch was first set to the bar and again arraigned ; whereupon lie tendered a plea ingrossed on parchment and signed by his counsel Mr. Gordon and Mr. Joddrell ; to which the attorney general demurred, and the prisoner instantly joined in demurrer. And the said Alexander Kinloch in his proper person comes, and having heard the indictment aforesaid read, and protesting that lie is not guilty of the prernisses charged in the said indictment, for plea nevertheless saith, That he ought not to be compelled to answer to. the said indictment : because he saith that the kingdom of Scotland, before and until the time of the union of the two kingdoms of England and Scotland, was regulated and governed by the proper laws and statutes of that kingdom, and not by the laws and statutes of the kingdom of England; and that ever since the said union of the said two kingdoms that part of the realm of Great Britain called Scotland hath been, and yet is governed and regulated by the proper laws of that part of the said realm called Scotland, and not by the laws of that part of the said realm called England. And the said Alexander Kinloch further saith, That within the said kingdom before the union of the said two kingdoms, and until the said union thereof, and within that part of Great Britain called Scotland ever since the said union, there bath been, and now is a certaincourt called the Court of Justiciary ; and that all and singular offences of high-treason committed within the said kingdom of Scotland before and until the said union, and within that part of the realm of Great Britain called Scotland since the said union by the natives...
