On the 18th, Colonel Duroure, Lieutenant-Colonel to the Annoro.Geo. II. Regiment of Foot commanded by Lieutenant-General Whe1736-7. tham, was ordered to attend, his Name having been mentioned in the former Examinations; and the fame Day a Mo- Lord Levell's tion was made by Lord Lovell, That the Lord Juftice Clerk of Motion that the Lord Juftice Scotland might be ordered to attend. The Reafon of this Clerk of Scotland Motion was founded upon a Letter of Lieutenant-General might attend the Wade's, then on their Table, from which it appeared, That Houfe. it would be neceffary for them to examine the Lord Justice Clerk, and as the Seffion would not probably laft long, they ought to fend for him as foon as poffible; because the fooner they fent for him, the fooner they would have him: To which it was added, That it appeared likewife from the Trial of Porteous, then on their Table, that it would be necessary to examine the Lord Juftice Clerk, who was the chief and prefiding Judge upon that Trial.

To this it was anfwered, That the ordering of any parti cular Gentleman to attend, would be a fort of Impeachment upon his Character, which was a Slur they ought not to throw upon any Gentleman, without fome Appearance of Guilt; for, as they would fcorn to fkreen any Man, against whom there appeared the least Suspición, fo they would scorn to attack any Man in an indirect Manner. That, as to the Letter upon their Table, they could not properly make it a Foundation for any Order, till they had examined General Wade himself, as to the Contents; and as to the Trial of Porteous, the Lord Juftice Clerk was but one, of four or five Judges then upon the Bench, and ought not therefore to be made to anfwer fingly for any Part of that Trial.

Debate thereon.

The Motion was fupported by the Duke of Montagu, Duke of MontaLord Carteret, and Lord Bathurft; and oppofed by the Earl gu, Lord Carteret, gu,Lord of Ilay, the Lord Hervey, the Duke of Newcastle, the Duke Lord Bathurst, of Argyle, and the Earl of Warwick; and the Duke of New- Earl of Ilay, caftle having moved to adjourn, the Question was put, and Lord Hervey, carried for adjourning.

Contents prefent 4565 Not Contents prefent 3948

Proxies

Proxies Though the other Motion therefore was not then agreed to, yet as the Lord Justice Clerk was the chief Officer of State in Scotland, at the time of Porteous's Murder, and confequently the chief Person entrusted with the Civil Government of the Country; and as it appeared by all the Examinations, that he was neither in Town when that Mob happened, nor came to Town when he was apprized of the Tumult, tho' very near to it, it is probable this Motion would have been revived, and agreed to as foon as General Wade fhould be examined. However, on Monday following the Duke of Neww

Duke of Newcastle, Duke of Argyle, Warwick,

Wyk, Earl of

1737.

Annoro. Geo.II. cafle moved, That the aforefaid Lord Juftice Clerk, together with the Lord Dun and the Lord Royston, the two senior Judges of that Court, fhould be ordered to attend ; which Motion was agreed to, and they were ordered to attend accordingly on April 21.

Scotch Judges fent for.

A Copy of Portecus's Bill.

Lieutenant-General Wade, and feveral others were afterwards examined, and the Committee having confidered their Examinations, came to feveral Refolutions, which were reported and agreed to on Friday, April 13; whereupon Alexander Wilfon, Efq; the aforefaid Lord Provost of Edinburgh,' was ordered to be taken into the Cuftody of the GentlemanUfher of the Black-Rod; (but upon April 19, following, he was admitted to Bail, in order to prepare himself for being heard by his Counsel, as after mentioned ;) and the following Bill was ordered to be brought in, To disable the faid Alexander Wilfon, Efq; from taking, holding, or enjoying any Office or Place of Magiftracy in the City of Edinburgh, or elsewhere in Great Britain; and for imprisoning the faid Alexander Wilfon; and for abolishing the Guard kept up in the faid City, commonly called The Town-Guard; and for taking away the Gates of the Nether-Bow-Port of the faid City, and keeping open the Jame.

THEREAS apon Tuesday the 7th Day of September, in the Year of our Lord 1736, there was a moft feditious and outrageous Riot in the City of Edinburgh, in that Part of Great Britain called Scotland, notorioufly concerted and carried on by great Numbers of wicked, disorderly and bloodthirsty Perfons, who did, with open Force and Violence, feize the Arms of the City-Guard, poffefs themselves of the CityGates, and by fetting Fire to, and breaking open the Door of the Tolbooth of the faid City, did unlawfully and audaciously refcue and set at large feveral Criminals therein confined: And whereas Captain John Porteous, then a Prisoner there under Sentence of Death, but graciously reprieved by the Queen's most excellent Majefty, as Guardian of the Realm, was by the faid Rioters in a cruel Manner dragged from the said Prifon, and most barbarously hanged by the Neck, and murdered, in manifeft Violation of the public Peace, in Defiance and Subverfion of legal Government, in high Contempt of our Sovereign Lord the King, and his Laws, and to the most prefumptuous and unparallel'd Obftruction of the Royal Mercy : And whereas, for fome Time before the committing of the faid Murder and Riot, it was commonly reported in the faid City of Edinburgh, that fome atrocious Fact would be attempted, which, by proper Care in the Magiftrates, Citizens and Inhabitants of the faid City, might have been prevented;

not

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notwithstanding which Alex. Wilfon, Efq; then actually refident Anno ro. Geo. IL in the faid City, and now Provost of the faid City, and fully apprised of the faid wicked Defign, did not take any Precautions to prevent the faid Murder and Riot, nor ufe the proper or neceffary Means to suppress the fame, or to preserve the Peace of the faid City; or, after the Perpetration of the faid Fact, to discover, apprehend or fecure the Authors, Actors or Abettors thereof, in manifeft Violation of the Trust and Duty of his Office of chief Magiftrate of the faid City; nor were any Means or Endeavours used by the Citizens and Inhabitants of the faid City, to prevent or fupprefs the faid notorious Riot, or to hinder the faid inhuman and barbarous Murder, or to difcover the Perfons concerned therein, in order to bring them to Juftice: Now, in order to exprefs the highest Deteftation and Abhorrence of the faid Murder and Riot, and to the End that the faid enormous Misbehaviours and Neglects of Duty, herein before mentioned, may not go unpunished, and that other Perfons may not prefume, through Hopes of Impunity,. to be guilty of the like of the future: Be it enacted by the King's most excellent Majefty, by and with the Advice and Confent of the Lords fpiritual and temporal, and Commons, in this present Parliament affembled, and by the Authority of the fame, That the faid Alexander Wilfon be, and he is hereby, from and immediately after the paffing this Act, difabled and made incapable to have, hold, exercife or enjoy the faid Office of Provost of the faid City of Edinburgh: And that he the faid Alexander Wilfon be, and he is hereby for ever hereafter, difabled, and render'd incapable, to have, hold, exercife, or enjoy any Office or Place of Magiftracy in the faid City of Edinburgh, or elsewhere in Great Britain.

And it is farther enacted by the Authority aforefaid, That a new Provost be immediately chosen in the room of the said Alexander Wilfon, in the fame manner, as if the faid Alexander Wilson was naturally dead; and that he, the faid Alexander Wilfon, fhall be detained and kept in close and safe Cuftody, without Bail or Mainprize during the Space of (one whole Year) to be accounted from the Day of paffing this A&t, in any Goal or Prifon within the Kingdom of Great Britain, to the Cuftody of the Goaler or Keeper whereof the faid Alexander Wilfon fhall from time to time be committed, in pursuance of this Act, by any Warrant under the Hand and Seal of any Secretary of State of his Majefty, his Heirs, or Succeffors, which Warrant or Warrants any Secretary of State for the Time being, is hereby authorised and empowered to make.

And whereas the faid City of Edinburgh hath, for many Years paft, kept up a military Guard, called the Town-Guard,

་

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Annoro. Geo II, which upon the faid late unhappy Occafion has appeared to be of no ufe: And whereas, for want of an open Communication between the faid City, and a Place called the Cannongate, adjoining thereto, wicked and diforderly Perfons are the more encouraged (especially in the Night, when the Gates of the Nether-Bow Port of the faid City are shut) to attempt to commit Disorders and Riots in the faid City: And whereas it is juft and neceffary, that the Power of keeping up the faid Guard fhould be taken away, and that the faid Nether-Bow Port fhould be kept open: Be it farther enacted by the Authority aforefaid, That from and after the first Day of July 1737, the faid military Guard, commonly called the Town-Guard, be taken away, and abolished, and no longer kept up; any Law, Statute, Prefcription, or Ufage to the contrary in any wife notwithftanding: And that the then Provoft and Bailiffs of Edinburgh, on, or before the faid firft Day of July 1737, fhall caufe the faid Gates of the Nether-Bow Port to be taken down, and that the Communication between the said City and Cannongate, be for ever hereafter kept open, both by Night and by Day; any Law or Ufage to the contrary notwithstanding.

Lord Carteret.

Bp. of Salisbury.

A Debate con

Porteous.

On the 4th of April, this Bill was read a first Time, and ordered to be read a fecond Time, but was not till May; the Lord Provost, and the City of Edinburgh, being admitted to be heard by their Counsel against the Bill, upon its fecond Reading.

Tuesday, April 26, after several Lords had fpoke for, and against the Sentence pronounced against Porteous, by the High Court of Jufticiary in Scotland, a Motion was made for declaring it erroneous.

Argument for the Motion by Lord Carteret, the Bishop of Salisbury, &c.

My Lords, altho' it cannot be fuppofed that we have, or cerning the Sen- can have, all the Lights which Time and Circumftances sence paffed on may hereafter difcover and manifeft, with regard to the Trial of the unfortunate Captain Porteous, and the Sentence paffed upon him; yet I think, we have fufficient for fhewing us, that That Sentence was extremely rigorous, to give it no worse a Name; and, as it is an Affair, in which the Peace and Tranquillity of this Ifland, and the Safety of his Majefty's Subjects, are very much concerned, I am humbly of Opinion, we ought not to país over that fevere Sentence without fome Cenfure.

2.114 A

In that Trial, my Lords, the first Thing that occurs to our Notice is, the interlocutory Sentence paffed upon the Relevancy of the Libel, and for directing what Matters

I

fhould

1737

fhould be brought in Proof at the enfuing Trial; with re- Anno 10.Geo.II, fpect to which, there appears to me, at firit View, two very material Objections. The firft proceeds from an Error or Mistake, as I imagine, with regard to the Law of Scotland; and, indeed, of every well-regulated Society in the World; and the other is, in my Opinion, an evident Piece of Injustice done to the unfortunate Prifoner.

As to the first, my Lords, by that interlocutory Sentence they determined, That the Pannel, or Prisoner, having, at V any of the Times and Places libelled, fired a Gun among the People affembled at the Execution, or having given Orders to the Soldiers under his Command, to fire, and thereupon, they, the Soldiers, or any of them, having accordingly fired; and, upon the firing, either by himfelf or them, the Perfons mentioned in the Indictment, or any of them, were killed or wounded; or, the Pannel's being art or part of any of the aforefaid Crimes, are, feparatim, relevant to infer the Pains of Law.' I do not pretend, my Lords, to be fully acquainted with the Laws of Scotland; but from the Law of Reason, which I take to be the Law of every Country, and, I hope, is the Law of Scotland, I must think this Determination too general; I think there ought to have been an Exception, with regard to his having been first attacked or affaulted by the Mob; and, therefore, I muft think thefe Words, or fome fuch Words, ought to have been inferted; unless it should appear, that he or his Party were violently attacked or affaulted by the Mob, and brought into Danger of their Lives, er of being difabled from performing their Duty.

I am forry, my Lords, we fhould ever have occafion to employ a military Force, or any thing like a military Force, in the Execution of the Law, or in bringing any Criminal to condign Punishment; but, in this Country, as well as in every other Country, the Populace are sometimes inftigated by felfish and defigning Men, to oppose the Distribution of Justice; or, in fome Cafes, perhaps, to take upon themselves an ufurped Power of diftributing Juftice; and, when any fuch Cafe as either of thefe happens, it becomes neceffary for the Magiftrate to make use of a military Force, or fomething like it, in order to execute the Laws, or to protect his Majesty's innocent Subjects, who happen to be fo unfortunate as to incur the Refentment of an enraged and unruly Populace. In either of these Cafes, I hope, it will never be established as the Law of any Part of this Ifland, or any the Dominions belonging to it, that those who are called to the Affiftance of the Civil Magiftrate, fhall be hanged for Murder, in cafe they fhould find themfelves

1737.

Y